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Hawaiian Islands Humpback Whale NATIONAL MARINE National Marine SANCTUARJES Sanctuary Final Environmental Impact Statement Management Plan % RXX t A Federal State Partnership for the Protection of Humpback Whales and Their Habitat February 1997 *SVIT Or Fel Q@ 11 "Rus 01 U.S. DepavOnent 5'ComMerce State of Hawaii NsoiwidOaanic and Atmospheric Administration Office of Planning MARGUM *Sean Service Department of Business, 010ft of *eean and Coastal Resource Management Economic Development, ftafta" and Reserves Division and Tourism SlOWSpOng, Maryland Honolulu, Hawaii A LIST OF ABBREVIATIONS The Act ..... Hawaiian Islands National Marine MMC ........ Marine Mammal Commission Sanctuary Act MMPA ...... Marine Marrimal Protection Act APPS ....... Act to Prevent Pollution from Ships MMS ........ Minerals Management Service, DOI ATOC ....... Acoustic Thermometry of OceanClimate MOU/MOA. Memorandum of CDUA ...... Conservation District Use Application, Understanding/Memorandum of DLNR Agreement COE ......... U.S. Army Corps of Engineers MP/IR ....... Management Plan and Implementing CWA ........ Clean Water Act (or, Federal Water Regulations Pollution Control Act) MP or SMP. Management Plan or Sanctuary C22-AA ...... Coastal Zone Management Act Management Plan DAR ......... Division of Aquatic Resources, DLNR MPRSA ..... Marine Protection, Research, and DBEDT ..... Department of Business, Economic Sanctuaries Act of 1972, as amended Development, and Tourism, State of NARS ....... Natural Area Reserve System, DLNR Hawaii NEPA ....... National Environmental Policy Act of DEIS/MP ... Draft Environmental Impact 1969, as amended Statement/Management Plan NMFS ....... National Marine Fisheries Service, DLNR ....... Department of Land and Natural NOAA Resources, State of Hawaii NMFS-OE... National Marine Fisheries Service-Office DOBOR ..... Division of Boating and Ocean of Enforcement Recreation, DLNR NMS ......... National Marine Sanctuary DOC ......... U. S. Department of Commerce NMSA ....... National Marine Sanctuaries Act DOCARE ... Division of Conservation and NMSP ....... National Marine Sanctuary Program Enforcement, DLNR NOAA ....... National Oceanic and Atmospheric DOD ......... U.S. Department of Defense Administration, DOC DOH ........ Department of Health, State of Hawaii NOS ......... National Ocean Service, NOAA DOI .......... U.S. Department of the Interior NPDES ...... National Pollution Discharge Elimination DOT ......... Department of Transportation, State of System Hawaii NPS ......... National Park Service, DOI EA ........... Environmental Assessment OCRM ....... Office of Ocean and Coastal Resource EIS .......... Environmental Impact Statement Management, NOS EPA ......... U.S. Environmental Protection Agency OCSLA ...... Outer Continental Shelf Lands Act ESA ......... Endangered Species Act OP ........... Office of Planning (Formerly OSP) EEZ ......... Exclusive Economic Zone OPA ......... Oil Pollution Act of 1990 FEIS/MP ... Final Environmental Impact ORMA ....... Ocean Recreation Management Area Statement/Management Plan ORMP ....... Ocean Resources Management Plan, HAR ........ Hawaii Administrative Rules State of Hawaii HINMSA ... Hawaiian Islands National Marine OSP ........... Office of State Planning, State of Hawaii Sanctuary Act OTEC ........ Ocean Thermal Energy Conversion HIHWNMS Hawaiian Islands Humpback Whale PMRF ....... Pacific Missile Range Facility National Marine Sanctuary PWSA ....... Ports and Waterways Safety Act HINWR .... Hawaiian Islands National Wildlife RHA .......... U.S. Rivers and Harbors Act Refuge SAC .......... Sanctuary Advisory Council ARS ......... Hawaii Revised Statutes, State of SRD .......... Sanctuaries and Reserves Division, Hawaii OCRM IR ............ Implementing Regulations SWG ........ Sanctuary Working Group IWC ......... International Whaling Conirnission USCG ....... U.S. Coast Guard KIRC ....... Kahoolawe Island Reserve Commission USFWS ..... U.S. Fish and Wildlife Service, DOI MFCMA .... Magnuson Fishery Conservation and WESPAC ... Western Pacific Regional Fishery Management Act Management Council N1LCD ...... Marine Life Conservation District Cover Drawing: Courtesy of Mr. George Carey, Sanctuary Volunteer at the Hawaiian Islands Humpback Whale National Marine Sanctuary, Kihei, Maui, Hawaii. G Printed on Recycled Paper 'j A# "kl OF CO UNITrso STATr=s OEPARTMENT OF commERcr= Office of the Under Secretary for Oceans and Atmosphere Washington, O.C. 20230 JAN 3 1 1997 Dear Reviewer: In accordance with the provision of Section 102 (2) (c) of the National Environmental Policy Act of 1969, we are enclosing the Final Environmental Impact Statement/Management Plan (FEIS/MP) on the Congressionally designated Hawaiian Islands Humpback Whale National Marine Sanctuary. This document was prepared by the Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, Department of Commerce. The responsible Federal official for this project is W. Stanley Wilson, Assistant Administrator for Ocean Services and Coastal Zone Management, National Ocean Service, NOAA. Any written comments or questions regarding this FEIS/MP should be directed to the contact person identified below by match 19, 1997. Also, one copy of your comments should be sent to me in Room 5805, U.S. Department of Commerce, Washington, D.C. 20230. CONTACT PERSON Allen Tom, On-Site Liaison Hawaiian Islands Humpback Whale National Marine Sanctuary 726 S. Kihei Road Kihei,-HI 96753 Telephone (808) 879-2818 Thank you for your cooperation in this matter. Sincerely, A-7 LA--, Donna Wieting Acting Director Office of Ecology and Conservation Enclosure Printed on Recycled Paper Hawaiian Islands Humpback Whale National Marine NATIONAL MAFUNE SANCTUAFUES Sanctuary Final Environmental Impact Statement Management Plan A Federal State Partnership. for the Protection of Humpback Whales and Their Habitat February 1997 ft"wty of Coe "braw Sanctuaries and Reserves Division State of Hawaii. Office of Ocean and Coastal Resource Management Office of Planning National Ocean Service Department of Business, National Oceanic and Atmospheric Administration Economic Development, SSMC4, NIORM-2 and Tourism A 1305 East-West Highway I - P.O. Box 2359 %X) Silver Spring, MD 20910 US-Department ok Commerce Honolulu, 1H 96811-2359 NOAA Coastal Services Centor Library 2234 South Hobson Avenue Charleston, SC 29405-2413 Title: Final Environmental Impact Statement and Management Plan for the Hawaiian Islands Humpback Whale National Marine Sanctuary Abstract: The Hawaiian Islands Humpback Whale National Marine Sanctuary was designated by the Hawaiian Islands National Marine Sanctuary Act (HINMSA or Act), Title 11, subtitle C of the Oceans Act of 1992, Public Law 102-587. The Act requires the Secretary of Commerce (Secretary) to develop a comprehensive management plan with implementing regulations to govern the overall management of the site and to protect Sanctuary resources and qualities. The designated Sanctuary consists of approximately 1300 square nautical miles of Federal and State of Hawaii waters from the high water mark to the 100-fathom isobath contour adjoining the islands of Maui, Lanai and Molokai, including Penguin Bank, the deep water area of the Pailolo Channel, and the waters adjacent to the Kilauea National Wildlife Refuge on Kauai, but excluding the waters within three nautical miles of Kahoolawe. The preferred alternative in this Final Environmental Impact Statement 'and Management Plan (FEIS/MP) provides that the Congressionally-designated boundary be expanded to include the 100-fathom. isobath around the Big Island of Hawaii, eastern Kauai, and portions of Oahu. As expressed by Congress in the HINMSA, the purposes of the Hawaii Sanctuary are to: (1) protect humpback whales and their habitat; (2) educate and interpret for the public the relationship of humpback whales to the Hawaiian Islands marine environment; (3) -manage human uses of the Sanctuary consistent with the Act and the NMSA; and (4) provide for the identification of marine resources and ecosystems of national significance for possible inclusion in the Sanctuary. Consequently, these purposes provide the foundation and focus for what is included in this Final EIS/MP and Implementing Regulations. The Act also requires that the Sanctuary Management Plan shall (1) facilitate all public and private uses of the Sanctuary (including uses of Hawaiian natives customarily and traditionally exercised for subsistence, cultural, and religious purposes) consistent with the primary objective of protection of humpback whales and their habitat, (2) set for the allocation of Federal and State enforcement responsibilities, as jointly agreed by the Secretary and the State, (3) identify research needs and establish a long-term ecological monitoring program with respect to humpback whales and. their habitat, (4) identify alternative sources of funding needed to fully implement the plan's provisions, (5) ensure coordination and cooperation between Sanctuary managers and other Federal, State, and local authorities with jurisdiction within -or adjacent to the Sanctuary, and (6) promote education among users of the Sanctuary and the general public about conservation of humpback whales, their habitat, and other marine resources. Alternative elements considered within the FEIS/MP include: boundary alternatives considered by NOAA (e.g., areas of highest concentration, main Hawaiian Islands to the 100- fathom isobath, and/or expand to include waters to the 1,000-fathom isobath); scope of Sanctuary resources (e.g., identify and possibly include other resources now or later); Sanctuary administration (e.g., on-site, advisory councils); and resource protection strategies that include research and long-term monitoring, education and interpretation, coordination with existing resource management authorities, regulation and enforcement. Regulatory options range from relying on existing authorities to protect the humpback whale, to independent Federal regulations to protect humpback whales and their habitat, to a multi-species (ecosystem) regulatory scheme. The preferred boundary alternative as described in this document describes expanding the boundary to include the waters around all the main Hawaiian Islands from the shoreline to'the 100-fathom isobath, but not including specified military use areas on Kauai and Oahu, specified corrunercial ports and small boat harbors since they are not considered humpback whale habitat, and the waters within three nautical miles around Kahoolawe. The management strategies would be applied on a statewide basis. The management plan includes the formation of a Sanctuary Advisory Council (SAC) to advise the Sanctuary Manger on the management of the Sanctuary. The SAC was designed to provide maximum representation of public and private interest groups. The SAC will play an important role in providing the broad-based guidance needed to ensure the Sanctuary's Page i success. A proc@ss is presented to identify additional resources of national significance for possible inclusion in the Sanctuary at some later date. The Management Plan proposes utilization, and reliance,. on existing Federal and State authorities, when possible, to manage activities that may negatively affect humpback whales and their habitat. The Hawaii Sanctuary consultations will be conducted by the National Marine Fisheries Service (NMFS) under an MOU between NOAA's SRD and NMFS to ensure that humpback whales and their habitat are comprehensively protected and managed within existing permitting, and other authorization processes. To provide supplemental protection for humpback whales, the Sanctuary proposes to adopt existing NMFS humpback whale take and approach restrictions as Sanctuary regulations. In addition, the Sanctuary proposes a regulation to ensure greater coordination and to strengthen the long-term protection of the humpback whale's habitat. Any activity not conducted in compliance with the terms or conditions of a required Federal or State permit, license, lease, or other specific authorization for discharging or depositing materials from within the Sanctuary boundary, (or from outside the boundary that enters and injures Sanctuary resources) or for altering the seabed, would be in violation of Sanctuary regulations. This regulation would apply only to those activities which are conducted without or in violation of existing and required Federal and State permits, licenses, leases, or authorizations. This habitat regulation provide's a mechanism to fill existing gaps and supplement existing authorities. The regulations will supplement enforcement against certain acts of non-compliance and unlawful activities, thus strengthening overall protection of humpback whales and their habitat. This document also analyses the environmental and socioeconomic consequences of the preferred alternatives and the other alternatives. The potential socioeconomic impacts range from no change to varying degrees of impacts depending upon which regulatory alternative is selected. The preferred regulatory alternative is anticipated to have no negative socioeconomic impacts on Sanctuary users and positive environmental impacts to humpback whales and their habitat. NOAA is not proposing any Sanctuary restrictions on fishing or fishing activities, is not recommending the imposition of user fees, and is not proposing to issue Sanctuary-specific permits. Research, data and information collection, information exchange, and long-term monitoring will be very important in trying to better understand the humpback whales, their environmental needs, and impacts to the whales and their habitat. The research program will include baseline studies, monitoring, and analysis and prediction assessments to provide information needed in decision making, resolving management issues, and in funding appropriate management-related research. Interpretive/e.ducation programs will be directed at improving public awareness and understanding of the Sanctuary's resources, protection measures, and the need to manage them wisely-to ensure their continued viability and abundance. Lead Sanctuaries and Reserves Division Agency: Office of Ocean and Coastal Resource Management National Ocean Service, National Oceanic and Atmospheric Administration U.S. Department of Commerce Silver Spring, MD; Honolulu HI; and Kihei, HI Cooperating State of Hawaii Agencies:, Hawaii Office of Planning Department of Business, Economic Development and Tourism Honolulu, HI and Page ii National Marine Fisheries Service National Oceanic and Atmospheric Administration U.S. Department of Commerce Silver Spring, MD; and Honolulu, HI Contact: Ms. Debra Malek, Pacific Regional Manager NOAA-Sanctuaries and Reserves Division .1305 East West Highway - SSMCAV Silver Spring, MD 209 10, Phone: (301) 713-3141 Ext. 162 Fax: (301) 713-4306 Page iii THIS PAGE INTENTIONALLY LEFT BLANK Page iv FINAL ENVIRONMENTAL IMPACT STATEMENT AND MANAGEMENT PLAN FOR THE HAWAIIAN ISLANDs HUMPBACK WHALE NATIONAL MARINE SANCTUARY TABLE OF CONTENTS PAGE List of Figures .................................................................................................................. Viii List of Tables ....................................................................................... :-1'*--1-**-*1-***' ix Part 1: Background Part I Detailed Table of Contents ........................................................................................ 1 A. INTRODUCTION ......................................................................................................... 2 B. NATIONAL MARINE SANCTUARY PROGRAM ................................................... 2 1. National Marine Sanctuaries Act ............................................................................ 2 2. National Marine Sanctuary Progra ....................................................................... 3 3. General Benefits and Costs Resulting from Sanctuga Designation .......................6 4. National Marino, Sanctuary SyLtern .................................................I ........................7 C. HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY ............................................................................................................. 10 1. Designation ............................................................................................................ 10 2. History of Sanctuga Designation Prol2o&a_l .......................................................... 12 D. CONSULTATIONS .................................................................................................... 20 1. Endangered Species Act Requirements ................................................................. 20 2. Resource Assessment ................................................................................I............ 20. 3. Federal Consistency Deterniination ...................................................................... 21 Part H: Description of the Affected Environment Part H Detailed Table of Contents ..................................................................................... 23 A. THE PHYSICAL ENVIRONMENT .......................................................................... 27 1. Geographic Setting ................................................................................................ 27 2. Physical Characteristics .......................................................................................... 27 B. BIOLOGICAL RESOURCES .................................................................................... 34 1. Hu=back Whales ................................................................................................ 34 2. Other Marine Resources of Hawaii ....................................................................... 57 C. CULTURAL AND HISTORICAL RESOURCES AND USES ................................. 71 1. Native Hawaiian Settlements and Social Patterns ................................................. 72 2. AQ.uaculture/Fishl2onds ...................................................................................... i... 73 3. Religious Practice ana Artifacts .......................................................................... 76 4. Kahoolawelsland .................................................................................................. 77 5. Submerged Lands ......................................... ........................................................ 79 6. Traditional Native Hawaiian Uses ........................................................................ 79 7. Shipwrecks ............................................................................................................ 79 D. HUMAN ENVIRONMENT AND ACTIVITIES ...................................................... 80 1. Socio-Dernogral2hic Profile ................................................................................... 80 2. Human Activities ................................................................................................... 82 3. Institutional Arrangements and Responsibilities ................................................. 108 Page v Part III: Alternatives Part III Detailed Table of Contents .................................................................................. 129 A. "NO SANCTUARY" ALTERNATIVE .................................................................... 133 1. Background .......................................................................................................... 137 ,2. Feasibilijy of'a "No Sanctuga" Alternative ......................................................... 134 3. Consequences of Terminating Existing Sanctua[y ................................................. 134 4. Federal Sanctuary Without State Waters .............................................................. 135 B. SANCTUARY ALTERNATIVES ............................................................................ 137 1. BoundwZ@ Alternatives ......................................................................................... 137- 2. K-egulatory Alternatives ....................................................................................... 157 3. Management Alternatives .................................................................................... 173 Part IV: Environmental and Socio-economic Impacts Part IV Detailed Table of Contents ................................................................................. 179 A. INTRODUCTION ...................................................................................................... 181 B. BOUNDARY ALTERNATIVES .......................................I...................................... 181 1. Introduction 181 2. To-undga Alternatives ......................................................................................... 184 C. REGULATORY ALTERNATIVES ......................................................................... 189 1. Introduction ...............o......................................................................................... 189 2. Fishin2 Activities ................................................................................................ 189 3. Impacts of Proposed Regulations ........................................................................ 190 D. MANAGEMENT ALTERNATIVES ........................................................................ 208 1. Consequences of RernoviuZ National Marine Sanctuga Designation ............... 208 2.- Consequences of Accepting Status Quo Alternative ........................................... 208 3. Conse4uences of Sanctuga Preferred Alternative ....................................... 210 E. UNAVOIDABLE ADVERSE ENVIRONMENTAL AND SOCIOECONOMIC IMPACTS ............................................................................... 215 F. RELATIONSHIP BETWEEN SHORT-TERM USES OF THE ENVIRONMENT AND THE MAINTENANCE AND ENHANCEMENT OF LONG-TERM PRODUCTIVITY ............................................................................. 216 G. RELATIONSHIP BETWEEN THE PROPOSED ACTION AND EXISTING RESOURCE MANAGEMENT PLANS ................................................................... 216 1. Impacts Related to Management Plan PuMoses ....................... ........................... 216 2. Relationship Between Sanctuga Management Plan and OtheLHu=back Whale and Ocean Management Plans and Programs .......................................... 217 Part V: Management Plan Part V, Detailed Table of Contents@ .................... ..221 A. INTRODUCTION ..................................................................................................... 223 1. Sanctuga Puiposes .............................................................................................. 223 2. CoWrehensive Management Plan ...................................................................... 223 3. @`anctupa Goals and Objectives .......................................................................... 225 B. SANCTUARY BOUNDARY .................................................................................... 228 C. SANCTUARY RESOURCES .................................................................................. 229 1. Humpback Whale ................................................................................................. 229 2. Humpback Whale Habitat ................................... 229 3. 5ther Resources of National Significance .......... 229 Page vi D. RESOURCE PROTECTION PROGRAM ......................... I ........................................ 231 1. Program Description ................................................................... ......................... 231 2. Goals and Ob -jectives ............................................................................................. 231 3. Sanctuary Reaulations .......................................................................................... 234 4. Enforcement and Surveillance ............................................................................. 236 5. Coordination .......................................................................................................... 241 6. Research/Long-Term Monitgrin ........................................................................ 245 7. Education/InteEpretation ....................................................................................... 253 E. ADMINISTRATION ................................................................................................. 259 1. Site Administration .............................................................................................. 260 2. SanctuaLy Adviso[y Council ................................................................................ 260 3. Other Federal Aizencies ........................................................................................ 261 4. State, Regional, and County Agencies ................................................................. 261 5. Compatible Uses of the Sanctuaj@@ ....................................................................... 263 6. Five-Year Review of Mana2ement Plan ............................................................... 264 7. S12ecial Use Permits ............................................................................................. 264 8. Resource Protection: Roles and Responsibilities ................................................ 266 9. Research: Roles and Responsibilities ................................................................. 268 10. Education/Interpretation: Roles and Responsibilities ......................................... 269 11. Site Administration: Roles and Responsibilities ................................................. 270 F. REVENUE AND RESOURCE ENHANCEMENT .................................................. 271 Part VI: List of Preparers ................................................................................ 273 Part VII: List of Agencies and Organizations Receiving Copies of the Final -EIS/MP ...................................... 277 Part VIH: Appendixes ........................................................................................... 281 Appendix A: Responses to Comments Received on the Draft EIS/MP ........................ 283 Public Testimony Matrix ......................................................................... 321 Appendix B: National Marine Sanctuaries Act, as amended ........................................ 331 Appendix C:, Hawaiian Islands National Marine Sanctuary Act ................................... 347 Appendix D: Sanctuary Advisory Council Charter and members ................................. 351 Appendix E: Agreements for Coordinated Management of the Hawaiian Islands Humpback Whale National Marine Sanctuary ............................ 361 Appendix F: List of DOD Military Activities in Hawaii .............................................. 387 Appendix G: Species Profile: Humpback Whale Report #2 .......................................... 395 Appendix H: Background to the Proposed Hawaii Humpback Whale National Marine Sanctuary of 1984 ..................................................I...................... 423 Appendix I: Whale Education Programs in Hawaii ..................................................... 425 Appendix J: Bibliography and References ................................................................... 429 Appendix K: Designation Document and Implementing Regulations .......................... 447 Page vii LIST OF FIGURES PAGE Figure I- I SRD/OCRM Organizational Chart ........................................................ 4 Figure 1-2 Location of National Marine Sanctuaries ............................................... 7 Figure 11- 1 Main Hawaiian Islands ........................................................................ 27 Figure H-2 Hawaii Surface Winds .......................................................................... 30 Figure 11-3 Relationship Between Height of Islands and Trade Wind Flow ......... 30 Figure 11-4 Hawaii Surface Currents ..................................................................... 31 Figure H-5 Sea Surface Tempeatuers .................................................................... 32 Figure JI-6 Depth of 20'C isotherm ...... ........................ 32 Figure 11-7 Worldwide Distribution of Humpback Whales ......... ....... 37 Figure 11-8 Humpback Whale Migration Routes and Population Structure ........... 41 Figure H-9 Results of 1993 Humpback Whale Survey Showing 100- and 1,000-fathom isobath ........................................................................... 43 Figure 11- 10 Results of 1990 Survey (Calf Pods Only) ........................................... 44 Figure 11- 11 Change in Whale Density (1990 Rate--1977-180 Rate) ....................... 44 Figure H- 12 Results of 1993 and 1995 Humpback Whale Survey Showing 100-Fathom Isobath Around Kauai and Niihau .................................. 45 Figure 11- 13 Results of 1993 and 1995 Humpback Whale Survey Showing 100-Fathorn Isobath Around Oahu ..............................................: ....... 46 Figure 11- 14 Results of 1993 and 1995 Humpback Whale Survey Showing 106-Fathom Isobath Around Maui, Molokai, Lanai, and Kahoolawe ........................................................................................... 47 Figure U- 15 Results of 1993 and 1995 Humpback Whale Survey Showing 100-Fathorn Isobath Around the Big Island ......................................... 48 Figure H- 16 Results of 1993 Aerial Survey, Odontocete Sightings ........................ 65 Figure U- 17 Resident Population of Islands (1950-92) .............................I.............. 81 Figure 11- 18 Dredged Material Disposal Sites ......I................................................... 96 Figure 111- 1 State waters and the proposed Sanctaury boundary ..136 Figure 111-2 100-Fathorn Isobath Around Kahoolawe Island ..... ... 138 Figure 111-3 Boundary Alternative 1: Congressionally-Designated Sanctuary .... 140 Figure 1111-4 Boundary Alternative 2: Major Humpback Whale Concentration Areas ...........................................; ...................................................... 142 Figure 111-5 Boundary Alternative 3: PREFERRED--Statewide .......................... 144 Figure 111-6 Boundary Alternative 3: PREFERRED--Kauai Close-up ................ 145 Figure 1111-7 Boundary Alternative 3: PREFERkED--Oahu Close-up ................. 146 Figure IH-8 Boundary Alternative 3: PREFERRED--Molokai/Lanai Close-up.. 147 Figure 111-9 Boundary Alternative 3: PREFERRED--Maui Close-up ................. 148 Figure 111- 10 Boundary Alternative 3: PREFERRED--Big Island Close-up ......... 149 Figure III- I I Selected Ports, Harbors, and Small Boat Basins Excluded from the Preferred Boundary Alternative .................................................. 151 Figure HI-12 Boundary Alternative 4: 100-Fathom Isobath Around Main Hawaiian Islands and Kaula Rock .................................................... 155 Figure HI-13 Boundary Alternative 5: - 1000-Fathorn Isobath Around Main Hawaiian Islands ................................................................................ 156 Figure V- 1 Hawaiian Islands Humpback Whale National Marine Sanctuary Administration .....................................I.............................................. 262 Page viii LIST OF TABLES PAGE Table I- I Changes Made to the Final EIS/MP .......................................................... 18 Table 11- 1 Major Water Masses of the North Pacific ................................................. 33 Table 11-2 Hawaiian Water Temperatures by Month .................................................. 33 Table 11-3 Calf Pod Sightings by Survey and Region All Sightings (1993) ........... 49 Table 11-4 Calf Pod Sightings by Survey and Region All Sightings (1995) ........... 49 Table 11-5 Cetacean Species Found in Hawaii with Results of 1993 Aerial Surveys 63 Table 11-6 Monk Seal Sightings in the Main Hawaiian Islands, 1984-93 Reported to the National Marine Fisheries Service ................................... 70 Table 11-7 Fishponds by Type and Island ................................................................... 74 Table H-8 Fishponds of Maui, Lanai, Kauai, and Molokai ........................................ 75 Table 11-9 Population and Percent Urban ................................................................... 80 Table II- 10 Ethnic Diversity, Percentage by County ..............I .................................... 81 Table II- I I Job Count by Industry, by County ............................................................. 82 Table H- 12 Commercial Marine Life Landed by Month/Area, Fiscal Year 1992-93 (lbs.) ............................................................................................ 83 Table 11- 13 Commercial Fishers by Month and Area, Fiscal Year 1992-93 ................ 83 Table H- 14 1993 Landings, Sale, and Value of the Commercial Fishing Catch .......... 84 Table H- 15 Marine Life Caught from Penguin Bank Catchment Area by Commercial Fishermen for Calendar Years 1991-92 ................................ 84 Table H- 16 Fishing Methods, Landings, Sale, and value of Catch from Commercial Fishings for 1991 (6/90-6/9 1) for the Hawaiian Islands ........................................................................................................ 85 Table H- 17 Fishing Vessel Activities Within Propose d Boundary on the Big Island (Recreational, Subsistence,'Commercial) ....................................... 85 Table H- 18 Charterboat Fishing Revenues and Passengers, by County, 1990 ............ 86 Table 11- 19 Overseas and Inter-Island Shipping, 1989, Freight and Passenger Traffic for Specified Harbors, 1989 .......................................................... 87 Table 11-20 Visitor Count and Expenditures, by County (1991) .................................. 88 Table 11-21 Visitor -Accommodations by Type, and by County (199 1) ....................... 88 Table U-22 Ocean Recreation Revenues and Employment by Sub-Sector, 1990 ......... 89 Table 11-23 Small Craft Mooring Facilities, by Islands, 1991-92 ................................ 89 Table U-24 State-Registered Vessels, by County ......................................................... 90 Table 111-25 Estimated Tour Boat Rev enues, by County ..........................................*.... 91 Table 111-26 Characteristics of Recreational Dive Industry, by County ........................ 93 Table 11-27 Revenues and Employment Produced by Ocean Recreation .................... 93 Table 11-28 EPA Hawaiian Ocean Disposal Sites ........................................................ 96 Table 11-29 Defense Expenditures in Hawaii (in $ billions] ........................................ 97 Table U-30 Military Personnel and Dependents, and Acreage Controlled by the U.S. Department of Defense ...................................................................... 97 Table 11-31 Number of Farms, Farm Acreage, and Value of Crop Sales, by County (199 1) .......................................................................................... 102 Table 11-32 Crop Sales in Hawaii [in $ millions] ....................................................... 103 Table 11-33 Airports and Heliports, by Control and by Islands, 1991 ........................ 103 Table 11-34 Aircraft Operations, by Type of Aircraft, at Major State-Owned Airports, 1991 .......................................................................................... 104 Pageix Table III- I Summary of Alternatives and Potential Consequences ........................... 131, Table IV- I Summary of Potential Environmental Impacts Associated with Alternatives ............................................................................................. 182 Table IV-2 Summary of Potential Socio-Economic Impacts Associated with Alternatives ............................................................................................. 183 Table IV-3 Record of Enforcement Activities for the Protection of Hawaiian Islands Humpback Whales ...................................................................... 213 Page x Hawaiian Islands Humpback Whale Pait 1: Introduction and Background National Marine Sanctuary PART 1: INTRODUCTION AND BACKGROUND TABLE OF CONTENTS PAGE A. INTRODUCTION ...............................................................I ..........I...............................2 B. NATIONAL MARINE SANCTUARY PROGRAM ................................................... .) 1. National Marine Sanctuaries Act ............................................................................2 2. National Marine Sanctuary Program .......................................................................3 3. General Benefits and Costs Resulting from Sanctuary Designation .......................6 4. National Marine Sanctuajy System ..........................................................................7 C. HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY ............................................................................................................. 10 1. Designation ............................................................................................................ 10 2. History. of Sanctuga Designation Proposal .......................................................... 12 a. Initial Proposal: 1977-1984 ............................................................................ 12 b. Kahoolawe National Marine Sanctuary Feasibility Study: 1990-1991 .......... 12 c. The Oceans Act of 1992 .................................................................................. 13 d. The Draft Management Plan ........................................................................... 14 i. Preferred Alternative .................................................................................. 15 e. The Final Management Plan ................: ........................................................... 17 D.* CONSULTATIONS ..................................................................: ................................. 20 1. Endangered Species Act Requirements ................................................................. 20 2. Resource Assessment ............................................................................................ 20 3. Federal CQnsistency Determination ...................................................................... 21 Final Environmental Impact Statement Page I and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary A. INTRODUCTION The Hawaiian, Islands Humpback Whale National Marine Sanctuary (Sanctuary) was designated by law in 1992. The Hawaiian Islands National Marine Sanctuary Act (HINMSA or Act) designated the Sanctuary and required the Secretary of Commerce to develop a comprehensive management plan and regulations to implement the designation. This Final Environmental Impact Statement/Management Plan has been developed in accordance with the HINMSA, the National Marine Sanctuaries Act (NMSA), and the National Environmental Policy Act of 1969. B. NATIONAL MARINE SANCTUARY PROGRAM 1. The National Marine Sanctuaries Act The National Marine Sanctuaries Act (NMSA) 16 U.S.C. 1431 et apq. authorizes the Secretary of Commerce to designate as National Marine Sanctuaries areas of the marine environment that possess conservation, recreational, ecological, historical, research, and educational, or aesthetic resources and qualities of national significance, and to provide' -comprehensive management and protection of these areas. The NMSA sets certain designation standards for National Marine Sanctuaries, including determination of national significance; the determination that existing State and Federal authorities are inadequate or should be supplemented to ensure coordinated and comprehensive conservation and management of the area; a determination that the designation of the area as a National Marine, Sanctuary will facilitate the coordinated and comprehensive conservation and management of the area; and, the area is of a size and nature that permits comprehensive and coordinated conservation and management. National Marine Sanctuaries are routinely designated by the Secretary through an administrative process established by the NMSA, including activation of candidate sites selected from the National Marine Sanctuary Program Site Evaluation List. Sanctuaries also have been designated by an Act of Congress, as was the case with Monterey Bay, Stellwagen Bank, Florida Keys and the Hawaiian Islands Humpback Whale national marine sanctuaries. National Marine Sanctuaries are established for the protection of nationally significant marine resources as well as the long-term beneficial use and enjoyment of these resources by the public now and in the future. To meet these' objectives, the NMSA includes the following purposes and policies: a. To enhance resource protection through comprehensive and coordinated conservation and management tailored to specific resources that complements existing regulatory authorities; b. To support, promote, and coordinate scientific research on, and monitoring of, the site-specific marine resources to improve management decision - making in National Marine Sanctuaries; c. To enhance public awareness, understanding, and sustainable use of the coastal and marine environment through public interpretive, educational, and recreational programs; and d. To facilitate, to. the extent compatible with the primary objective of resource protection, public and private uses of National Marine Sanctuaries. In addition, the NMSA directs the Secretary to consult with appropriate State and Federal authorities and international governments and organizations to insure cooperation. The NMSA contains certain statutory prohibitions and the authority to enforce those prohibitions and Page 2 Final Environmental Impact StatemenT and Management Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Background National Marine Sanctuary methods for assessing penalties in the event a prohibition is violated. Specifically, the NMSA prohibits the destruction, loss of, or injury to any sanctuary resource managed under the laws or regulations for a sanctuary; the possession, delivery, sale, transport, or shipment of any sanctuary resource taken in violation of the NMSA; interference with law enforcement under the NMSA; any violation of the NMSA, and regulations or permits issued pursuant to the NMSA. The NMSA further provides the authority to recover response costs and damages for destruction, loss of, or injury to Sanctuary resources. The NMSA appears in Appendix B. The responsibility for carrying out the terms of the NMSA is delegated to the U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), Office of Ocean and Coastal Resource Management (OCRM), Sanctuaries and Reserves Division (SRD) (Figure 1-1). SRD's role in administration and management of the National Marine Sanctuary Program (NMSP) includes preparing management plans for designating marine sanctuaries, and adopting and implementing management practices to protect the conservation, recreational, ecological, historical, research, educational, and aesthetic values of these important marine areas. SRD, on behalf of the'Secretary of Commerce (Secretary), as part of the procedure for designating a National Marine Sanctuary, prepares the terms of the proposed designation; proposed mechanisms for coordination of existing authorities; a draft management plan which includes goals, objectives, management responsibilities, resource studies and programs; cost estimates for the proposed designation; a draft environmental impact statement; an evaluation of' the advantages of State/Federal cooperation if all or part of the site falls within State jurisdiction; and the proposed regulations. The Management Plan and the environmental impact statement are typically developed in tandem and issued as one document. 2. The National Marine SanctuaU Program The NMSP is a national system of 12 sites (Key Largo NMS and Looe Key NMS will be incorporated into the larger Florida Keys NMS upon the effective date of its regulations and final management plan). These sites protect over 13,000 square nautical miles of marine resources, and range in all sizes and shapes from 0.25 to 4,024 square nautical miles. An additional approximately 850 square nautical miles are currently under consideration for designation as National Marine Sanctuaries. Designed to protect natural, cultural, and/or historical features of the marine environment, they are currently found in eight of the twelve recognized biogeographical provinces in U.S. coastal waters. Many people ask what a National Marine Sanctuary (NMS) is, what its benefits are, and how it will affect them as Sanctuary users. There are no simple answers to these questions because of the varied nature and needs of National Marine Sanctuaries and the purposes of their designation. Sanctuaries can be located in either Federal, State, or territorial waters or some combination thereof. Of the 12 existing sites, 7 encompass some Territorial or State waters within their boundaries. As such, the designation of marine sanctuaries has led to numerous cooperative agreements and partnerships among Federal, State, and local governmental agencies, as well as non-governmental organizations, to comprehensively manage' National Marine Sanctuaries and ensure the cooperative attainment of the goals of enhanced resource protection and management. Sanctuaries strive to complement existing authorities and supplement local efforts when more comprehensive and coordinated protection of resources is needed. Final Environmental Impact Statement Page 3 and Management Plan Part L Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary gs 01 Departmen National oceanic and Atmospheric Admini National Office of Ocean and Coastal Resource Man 9-7t riin-cwrl" and Reserves Division Operations L Control Stff Technical Marine Sanctuaries Marine Sanctuaries Eistuarine Research proiects West Branch East Branch Reserve Branch Branch r Figure I-1 Sanctuaries and Reserves Division (SRD) Organization National Marine Sanctuaries are built around the existence of distinctive natural and cultural resources whose protection and wise use would benefit from comprehensive planning and management. Factors which are taken into account in the designation of a National Marine Sanctuary include: Natural resource and ecological qualities, including its contribution to biological productivity, maintenance of ecosystem structure, maintenance of ecologically or commercially important or threatened species or assemblages, maintenance of critical habitat of endangered species, and the biogeographic representation of the site; Historical, cultural, archaeological, or paleontological significance; Present and potential uses that depend on maintenance of the area's resources, including commercial and recreational fishing, subsistence uses, other commercial and recreational activities, and research and education; - Present and potential activities that may adversely affect the area's qualities, uses, and significance; Existing State and Federal regulatory and management authorities and their adequacy to fulfill the purposes and policies of the HINMSA; Manageability of the area, including such factors as its size, ability to be identified as a discrete ecological unit with definable boundaries, accessibility, and suitability for monitoring and enforcement activities; Public benefits to'be derived from sanctuary status, with emphasis on the benefits of long-term protection of nationally significant resources, vital habitats, and resources which generate tourism; Page 4 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Background National Marine Sanctuary Negative impacts produced by management restrictions on income -ge nerati nor activities; and Socio-economic effects of sanctuary designation. Benefits associated with National Marine Sanctuary designation include enhanced protection of special areas for natural, historical, or cultural values through more coordinated and comprehensive management, which supports an appropriate mixture of regulatory and non- regulatory approaches such as research, long-term monitoring, education, interpretation, information dissemination, and enforcement. There are shared benefits among levels of government including financial and logistical resources which may further the achievement of each entity's resource protection or management mandate. Through coordination, cooperation, and resource pooling, cooperating agencies may be able to mutually achieve their objectives in an efficient manner. For example, the Florida Keys NMS is working jointly with other Federal agencies [National Marine Fisheries Service (NMFS), Environmental Protection Agency (EPA), Department of the Interior (DOI), and the Army Corps of Engineers (COE)], State agencies, local governments, and academic institutions to protect the coral reef ecosystem of the Florida Keys. All of these entities have worked together and pooled resources to develop and implement a water quality protection program vital to the marine resources of the region. Sanctuary designation in some areas has led to the creation of new education, interpretation, and visitor centers, and in other cases has enhanced existing centers. A variety of education and outreach tools are produced by the NMSP to support management goals including brochure s, posters, K-12 classroom curricula, on-water programs, and instructional videos. Research and monitoring are conducted in marine sanctuaries to provide long-term data on resource health and to assist in management decision-making. Volunteer programs are vital. for sanctuaries to support the education, research and monitoring, and management programs which are established and to provide avenues for local communities to participate in marine resource management. National Marine Sanctuaries have also played an important role to e nsure that when damage has been done to sanctuary resources. and qualities, every attempt is made to repair, restore, and/or replace damaged and lost resources. The NMSP works with other agencies in responding to incidents of resource damage to minimize the impacts and to initiate restorative measures as soon as possible. New technologies for restoration and procedures for response have been direct results of sanctuary involvement. One of the NMSA's policies is to facilitate public and private uses of sanctuaries when compatible with the primary objective of resource protection. As an example, the Sanctuary encourages the continued use of Hawaii's marine waters by commercial and recreational industries and has facilitated workshops between the enforcement officers and the boat captains to increase mutual awareness of each others activities and increase the boaters understanding of the resources and regulations designed to protect these resources. Moreover, the HINMSA provides that the Sanctuary shall facilitate uses of Native Hawaiians customarily and traditionally exercised for subsistence, cultural, and religious purposes. The Sanctuary has worked with various segments of the Native Hawaiian community to develop education materials, research past and present uses of the marine environment, and is working with UH-Sea Grant to develop a Native Hawaiian resource management intem program. NOAA is also the parent agency of NMFS in addition to the NMSP. NMFS administers the MMPA and ESA, and manages fishery resources in Federal waters and some resources, including certain species of endangered marine wildlife, in both State and Federal waters. Sanctuaries rely on NMFS and State fishery management agencies to establish fishery management measures in marine waters, although in certain circumstances, the NMSP has determined that regulation of certain fishing methods or gear has been needed to protect specific Final Environmental Impact Statement Page 5 and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary historic sites or natural resources. Prior to issuing Sanctuary fishing regulations, however, the NMSA requires that the appropriate Fishery Management Councils be provided with the opportunity to prepare such regulations [NMSA, Section 304(a)(5)]. Cooperation with local appropriate 'fishery management authorities (e.g., state authorities) is also required. 3. General Benefits and Costs Resulting From SanctuaU Designation The net 'environmental and socioeconomic effects of designating the Sanctuary and implementing the Sanctuary Management Plan and regulations are expected to @be positive. While such effects are difficult to quantify, the goal of the Sanctuary'in part will be to maintain or improve the humpback whale habitat, water quality, uses of Native Hawaiians customarily and traditionally exercised for subsistence, cultural, and religious purposes, aesthetics, and tourism without causing any adverse effects. The major benefit of the Sanctuary is the integration of efforts to protect and manage the humpback whale and its habitat and corresponding human activities into one coordinated management regime. Other benefits of designation include: (1) enhancement of research and long-term monitoring; (2) promotion of public awareness of humpback whales and their marine environment; (3) public involvement in the management of the Sanctuary; (4) facilitated coordination of initiatives implemented by existing authorities; (5) formulation of long-range plans that respond to currently unforeseen threats; and (6), supplement existing regulations on activities which either pose a current risk of causing significant damage to humpback whales or their habitat, or that may later prove harmful as use of the area increases. Formal recognition of humpback whales and the habitat value of the their Hawaiian habitat should in itself focus additional attention on this area and thus encourage direct special attention on managing this area so that future generations may enjoy its beauty and rely upon its resources. NOAA's final Sanctuary regulations will supplement existing Federal and State regulatory regimes to protect humpback whales and their habitat. Human uses in the Sanctuary will not be adversely affected because there will be no new, substantive regulatory restrictions. permits, or authorizations instituted by the Sanctuary. The Sanctuary will work with existincy Federal and State authorities to ensure that Sanctuary concerns are addressed within their permit review processes, thereby eliminating the need for additional Sanctuary permits and approvals. Individual agencies administering the their permits or other approvals may or may not choose to accept Sanctuary recommendations. There may be some socio-economic impacts if a Sanctuary recommendation is adopted by a State or Federal permitting agency, but these are expected to be small in comparison to the benefits to the Sanctuary resources. The Sanctuary regulations will provide additional authority for the Sanctuary to enforce ESA/MMPA approach' regulations, and existing discharge and alteration of the seabed restrictions under other relevant laws. Under the NMSA, the Sanctuary can impose higher maximum civil penalties for violations of Sanctuary regulations than is possible under the MMPA or ESA. The maximum civil penalty would likely not be applied except possibly for repeat offenders or particularly egregious offenders. Impacted users would be limited to only those persons subject to the regulations (as opposed to all users of the Sanctuary), and of those, only those persons in violation of Sanctuary regulations. The actual impact on those persons in violation of Sanctuary regulations will be relatively small because enforcement mechanisms are not limited to civil penalties. Rather, oral and written warnings are given routinely in lieu of civil penalties. Further, with interpretive enforcement, users subject to Sanctuary regulations will be educated as to what the regulations are and why they are in place, thus increasing future voluntary compliance and decreasing those potentially subject to civil penalties. Consequently, there will be few impacts to Sanctuary users. Education and interpretive enforcement focusing on the Sanctuary approach and habitat regulations will result in greater public compliance of the regulations which will benefit Page 6 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale 'Part 1: Introduction and Background National Marine Sanctuary humpback whales and their habitat, thus increasing the experience (enjoyment of the experience as well as recreational and aesthetic experience) of Sanctuary resources for all Sanctuary users. Further, in those instances where a person who violated a Sanctuary regulation was assessed a civil penalty under the NMSA, those civil penalty monies will be returned to the Sanctuary for management and improvement (e.g., education and outreach), as opposed to being deposited in the general U.S. Treasury. @inally,'NMSA enforcement will be coordinated with existing State and Federal authorities to minimize the duplication of enforcement efforts, thus minimizing the potential for cumulative effects on those users in violation of Sanctuary regulations. Overall the Sanctuary regulations are intended: ( 1) to improve resource protection by instituting supplementary regulatory, surveillance and enforcement measures and authority; and (2) to minimize negative socio-econonuc impacts to human uses, particularly those deemed compatible with the purposes of the Sanctuary. Efforts by the Sanctuary program to educate the general public about Hawaii's marine environment and the diverse array of human uses, particularly those by Native Hawaiians, will help people realize their dependence on a healthy marine environment and encourage them to take a more active role in the stewardship of these resources. 4. The National Marine SanctuwZ@ System. Fourteen National Marine Sanctuaries, including Hawaii, have been designated since the NM5P's inception in 1972 (Figure 1-2). They include in order of designation: National Marine Sanctuaries Olympic Coast ragen U3 .,Bank Cordell Bank Guff of the Faralkmes. Monterey Say Monitor Channel islands G Reef rays Flower Garden Hawaiian hilarift -W- Humpbackwriale. Rorida.Keys SDOkm Soo lid eFaqatele'o' 20@ 0@y Figure 1-2 Location of National Marine Sanctuaries Final Environmental Impact Statement Pa-e 7 and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary The Monitor National Marine Sanctuary serves to protect the wreck of the Civil War ironclad, U.S.S. Monitor, which sank in J 225 ft. of water. It was designated in January 1975, and consists of 1AWrHoaRum" N.M@ Nms a one-square nautical mile of water (surface to bottom) located 16 W& . miles southeast of Cape Hatteras, North Carolina. The Sanctuary Aff&'M regulates certain activities which might damage or destroy the coo 0- historic wreck. The Sanctuary has led to increased knowledge of L-k.0 the Civil War and expanded exhibits in the Mariner's Museum in Virginia. (Federal waters) The Key Largo National Marine Sanctuary was designated in December 1975, and provides protection and management to a 100-square nautical mile area of tropical coral reefs and the offshore seabed south of Miami, Florida. The Sanctuary is a seaward extension of the John Pennekamp State Coral Reef Park and includes historical and cultural artifacts and shipwrecks. Regulations are designed to protect the significant natural and cultural features from removal or damage, and has resulted in the installation of a protective mooring buoy system; reef restoration projects from ship groundings; successful attempts to halt black band coral disease; and training for marine protected areas in other parts of the world. (To become part of the Florida Keys NMS; Federal waters). The Channel Islands National Marine Sanctuary was designated in September 1980, and encompasses 1,252 square nautical miles off the coast of Santa -Barbara, California. The Sanctuary surrounds the four northern Channel Islands and Santa Barbara Island. It provides protection to valuable habitats for marine mammals, including extensive pinniped and seabird assemblages, and serves as an important migration corridor for gray and humpback whales. The Sanctuary contains rich kelp forests, nearshore and benthic c4rcoom communities, and -fisheries resources. The Sanctuary's regulatory U." ft*" focus is on the deposition or discharge of materials, alteration of the seabed, removal or damage of historical or cultural resources, disturbance of marine mammals and seabirds, and exploration and Chanrol swr&s NMS development of hydrocarbon (oil and gas) resources. The 0 Sanctuary is adjacent to and works in close cooperation with the Channel Islands National Park, and has a wide range of education and research programs focusing on the resources within the Sanctuary. (Federal/State waters) The Looe Key National Marine Sanctuary was designated in January 1981, and consists of a submerged section of the' Floridareef southwest of Big Pine Key. The five-square nautical mile site includes a beautiful "spur and groove" coral formation supporting a diverse marine community and a wide variety of'human uses. The regulatory and non-regulatory programs are similar to the Key Largo NMS described above. (To become part of the Florida Keys NMS; Federal waters). V The Gray's Reef National Marine Sanctuary, designated in January 1981, is a submerged live bottom (limestone reef) area SL CROW&Ot located on the South Atlantic continental shelf east of Sapelo WWW Island, 'Georgia. The Sanctuary encompasses about 17 square -AMIW nautical miles, and protects a highly productive and unusual habitat SIPWO OQW for a wide variety of species including corals, tropical fish, and endangered and threatened sea turtles. It also provides migratory ROM MS passage for the Northern right whale. Regulations prohibit alteration of the seabed, certain methods of fishing (explosives, wire traps), damage or removal of bottom formations, and discharge of substances or materials. (Federal waters) Page 8 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Background National Marine Sanctuary The Gulf of the Farallones National Marine Sanctuary CA was designated in January 1981, and encompasses 948 square Gulf of the Farallone nautical n-liles*off the northern coast of San Francisco, California. NMS The Sanctuary includes important habitats for a diverse array of say marine mammals (humpback, blue, and. gray whales, dolphins, seals, and sea lions) and the largest concentration of breeding seabirds in the continental U.S., as well as pelagic fish, plants, and F benthic biota. Regulations prohibit discharge of substances, alteration the seabed, hydrocarbon exploration and development activities, removal of historical or cultural resources, and restrict commercial vessel and aircraft activities within certain distances of specified biologically sensitive areas. (Federal/State waters) T.WM The Fagatele Bay National Marine Sanctuary in @merican Samoa was designated in April 1986. The 163-acre bay F"@Wo Say site contains deepwater coral terrace formations in a submerged POO" .,,BAY volcano that are unique to the high islands of the tropical Pacific. The Sanctuary protects habitat for a diverse array of tropical Peak marine flora and fauna, including the endangered hawksbill sea turtle and the threatened green sea turtle. Regulations include fishing restrictions, discharges, and damage or removal of natural, historical, or cultural resources. (Territorial waters) The Cordell Bank National Marine Sanctuary, located approximately 20 nautical miles west of Point. Reyes, California, POONC OCW was. designated in May 1989. The 397-square nautical mile site Comm San surrounds a granitic formation, which provides habitat for an Unk NMS &0 cw unusual assortment of marine and intertidal species, including colonies of purple hydrocorals. Abundant fish species attract feeding cetaceans and seabirds. Regulations prohibit deposition or discharged substances or materials, removal of or injury to Sanctuary resources, and hydrocarbon exploration and development activities. (Federal waters) The Florida Keys National Marine Sanctuary was FL @ongressionally-designated in November 1990, and encompasses' Fbft approximately 2,600 square nautical miles of coral reefs, seagrass beds, and related shoreline habitats of the Florida Keys ecosystem. KwL-w The existing National Marine Sanctuaries at Key Largo and Looe Key will be incorporated into the Florida Keys NMS. In AMW September, 1996, SRD released a Final Environmental Impact Kw@* Statement and Management Plan for the site. (Federal/State WON ON waters) The Flower Garden Banks National Marine Sanctuary LA ;ncompasses approximately 42 square nautical miles surrounding two separate submerged features, the East and the West Flower TX Out of Aft.*0 Garden Banks, situated in the Gulf of Mexico over 100 nautical, miles off the Texas/Louisiana coast. Designated in November ROW Garden 1991, the Sanctuary protects the northernmost coral reefs on the krft ONMS North American continental shelf by providing alternatives to anchoring (installation of mooring buoys), and prohibiting C', Tue" M4 A-11-an @,*A- F =@F FL My L-W ,X @LA discharges and seabed alterations, hydrocarbon exploration and development activities, and injuring or taking marine organisms. (Federal waters) Final Environmental Impact Statement Page 9 and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary Son The Monterey Bay National Marine Sanctuary was Psaft fty designated in September 1992, and is the largest sanctuary in the ocam national system, consisting of 4,024 square nautical miles off the mom B*Y fty central California coast. The most significant feature is the CA Monterey Canyon, the deepest and largest submarine canyon incising the continental shelf of North America. The area is rich in natural resources and serves as a breeding, feeding, and migration . f area for 'over 26 species of marine mammals. Signtl' icant prehistoric cultural sites as well as over 300 shipwrecks exist throughout the site and coastal area. Regulations include the prohibition of hydrocarbon exploration and development activities, depositing or discharging of substances or materials, taking or damaging Sanctuary historical resources, and the protection of specified biologically sensitive areas. (Federal/State waters) The Stellwagen Bank National Marine Sanctuary, designated by the Oceans Act of 1992, consists of 638 square nautical miles in Federal waters surrounding the entire Stellwagen CW &&"gen Bank. The Bank is highly productive and provides feeding and Bank NMS nursery grounds for more than a dozen cetacean species, including MA C." Cd the endangered humpback, northern right, sei, and fin whales. Adanft 0CWn Current commercial whale watching activities involve more than one million visitors to the Bank annually. Mining'for sand and gravel and discharging of dredged or other material is prohibited. (Federal waters) C@ The Olympic Coast National Marine Sanctuary was Lsignated in July 1994, and consists of 2,500 square nautical WA miles of State/Federal waters off the Washington Olympic Coast. The Sanctuary contains submarine canyons, marine mammals, CftV AM P..ft 0- seabirds, a diverse intertidal community, important fisheries, and serves as a gray and humpback whale migration corridor. Four Native American tribes participate on the Sanctuary Advisory Council (SAC). Significant historical and cultural resources are located both within and immediately adjacent to the sanctuary. (Federal/State waters). Two additional sites are currently being considered for sanctuary designation: Northwest Straits, Washington; and Thunder Bay, Michigan. In addition, there are 24 natural resource sites on,the Site Evaluation List (SEL) which have yet to be considered. Presence on the SEL does not guarantee a site will become a sanctuary. C. HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY 1. Desination The Hawaiian Islands Humpback Whale NMS was designated in 1992 by the Hawaiian Islands National Marine Sanctuary Act (HINMSA) (Title II, subtitle C of the Oceans Act of 1992). In Section 2302 of the HINMSA, Congress made the following findings: 1) The Western Pacific region has many resources and ecosystems of national significance and importance. 2) There are currently no sanctuaries or potential candidates in Hawaii. W. 3) Hawaii's marine subtropical system'is diverse and unique. Page 10 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Backuround National Marine Sanctuary 4) The Kahoolawe Island National Marine Sanctuary Feasibility Study requested by Congress indicated that biological, cultur@l and historical resources merited further investigation as to possible sanctuary status. 5) The Kahoolawe Study indicated that additional areas within Hawaii merited consideration and the sanctuary status could enhance resource protection. 6) Waters off the main Hawaiian Islands are important to the endangered North Pacific stock of the humpback whales. 7) The waters considered essential for breeding, calving and nursing of the humpback whale can be damaged or lose their ecological integrity from a variety of disturbances. 8) The Humpback Whale Recovery Plan recommends goals and actions to increase the abundance of the species. 9) In 1982, Hawaiian waters were considered to be an Active Candidate for marine sanctuary designation. , 10) Existing regulatory and management authorities are inadequate to provide for comprehensive and coordinated management, which can be provided through the [NMSA]. 11) Authority is needed to supplement and complement existing State and Federal regulatory and management programs to provide for comprehensive and coordinated conservation and management. 12) Additional support, promotion and coordination of scientific research and monitoring is essential to the survival of the humpback whale. 13) Education, awareness, understanding, appreciation and wi 'se use of the marine environment are fundamental elements for the protection and conservation of the species. 14) National Marine Sanctuary designation is necessary for the protection and conservation of the humpback whale. 15) The Sanctuary which is designated for the conservation and management of the humpback whale could be expanded to include other marine resources of national significance which may exist within the Sanctuary. These findings provided the basis for the Congressional designation of the Sanctuary. The objectives of the HINMSA are to: 1) protect humpback whales and their habitat within Sanctuary boundaries; 2) educate and interpret for the public the importance of humpback whales to the Hawaiian Islands marine environment; 3) manage such human uses of the Sanctuary consistent with the HINMSA and the [NMSA]; and 4) provide for the identification of marine resources and ecosystems of national significance for possible inclusion in the sanctuary. The designation builds and compliments the efforts of NMFS in protecting the humpback whale under specialized Federal authorities, the efforts of the State of Hawaii since it has designated the humpback whale as the State Marine Mammal, and the unparalleled efforts of the County of Maui and its residents over a twenty year period during which they have conducted many activities in support of humpback whale research, education, protection and recovery. indeed, the Congressional findings recognize the extreme imp 'ortance of the Hawaiian marine environment to the perpetuation of the species, that there is an important long-term need to protect their habitat, and that the NMSA will provide resources intended to enhance these ongoing efforts. The Sanctuary will primarily rely on these existing efforts to accomplish many of the goals and objectives set out for it to achieve by law. Likewise, the Sanctuary will facilitate and support other on-going efforts by agencies, organizations and the public to enhance protection for and awareness of the humpback whale and its habitat. While it appears that the population of the North Pacific Humpback Whale has increased, according to stock assessment estimates taken in Hawaii over the last 18 years, researchers and scientists recommend caution be used in making definitive statements regarding population Final Environmental Impact Statement Page I I and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary increase because of unanswered questions about the degree of mixing between humpback whale populations in Japan, Hawaii, and Mexico, the amount of inter-island movements within the Hawaiian Islands, and the different assessment methodologies used over time. Despite potential increases in ' the overall population, the North Pacific stock of humpback whales remains endangered. NMFS's recovery goal for the North Pacific population is 60 percent of the numb 'er of whales existing before commercial exploitation or of current environmental carrying capacity. To date there are only rough estimates of the pre-whaling population (15,000 whales) and little is known about the environmental carrying capacity in the Hawaiian Islands. There is still a great deal to learn about the humpback whale, its Hawaiian habitat, migration dynamics, and how to ensure its recovery. Other efforts in Alaska, as well as national marine sanctuaries along the California coast (Monterey Bay, Gulf of the Farallones, Cordell Bank and Channel Islands) and Washington State (Olympic Coast) will'assist in the protection of the whale's migratory and feeding habitats and add to the information base. The 'HIHWNMS can play a coordinating rote within the entire Pacific basin to integrate the monitoring and research efforts on humpback whales to elucidate the migratory patterns of humpback whales. In this capacity the HIHWNMS can integrate Pacific-wide education, monitoring, and research efforts on humpback whales. 2. History of-Sanctuary Designation Prop2sal a. Initial Proposal: 1977 - 1984 The establishment of a National Marine Sanctuary in Hawaii was first considered in December, 1977, when NOAA received the nomination for a proposed Humpback Whale National Marine Sanctuary in the waters between the islands of Maui, Molokai, Lanai, and Kahoolawe. This four-island area was identified as the principal breeding and calving area for the wintering population of endangered North Pacific humpback whales (Megaptera novaeangliae) estimated at that time to be between 600 and 800 individuals., A workshop with scientists and resource managers'was convened in December of that year resulting in the conclusion that a marine sanctuary would be most beneficial to the long- term protection of the endangered humpback whale. The workshop participants concluded that a Hawaii- statewide boundary (shoreline to the 100 fathom isobath) would provide the greatest protection for humpback whales in Hawaii given their distribution and inter-island migrations. The nomination was placed on the NMSP's List of Recommended Areas in October, 1979. In March, 1982, NOAA declared the'site an "Active Candidate" for designation as a national marine sanctuary in accordance with its regulations. Public workshops were subsequently held in Hawaii in April, 1982, to discuss the purpose and evaluate the issues related to management of the Sanctuary. There was considerable opposition to Sanctuary designation due to fears that the Sanctuary would impose additional restrictions on fishing and vessel operations. Based on comments received by NOAA from State and County agencies and the general public regarding.the Draft EIS/MP that was distributed in December, 1983 (NOAA/OCRM, 1983), and at the request of the State Governor, further consideration of the site was suspended in early 1984. (For additional information see Appendix H) b. Kahoolawe NMS Feasibility Study: 1990 - 1991 In October, 1990, in response to recommendations from the State of Hawaii and native Hawaiian groups such as the Protect Kahoolawe Ohana, President Bush directed the Secretary of Defense to immediately discontinue use of Kahoolawe as a weapons range. In conjunction with the presidential directive, Congress established the Kahoolawe Island Conveyance Commission to prepare a report that would identify future jurisdictional responsibilities and uses of the Island and its resources. Congress also directed NOAA (through Conference Report for Public Law 101-515 -- the Commerce, Justice, and State'Appropriations Bill) to determine the feasibility of Page 12 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Backaround National Marine Sanctuary establishing a national marine sanctuary in the waters around Kahoolawe Island. NOAA was instructed to give special consideration to the effects that a sanctuary would have on the population of humpback whales that inhabit the marine environment around Kahoolawe. NOAA examined the marine resources within three nautical miles around Kahoolawe Island and consulted with Federal and State agencies and the public through a series of public meetings. The results of this assessment and public input were published in a report entitled "Kahoolawe Island National Marine Sanctuary Feasibility Study.7' The study indicated that while most research suggests that the waters around Kahoolawe do not appear to support large numbers of humpback whales, there is preliminary evidence of biological, cultural and historical resources adjacent to Kahoolawe which merit further investigation. The study concluded that additional information was needed before the Kahoolawe site could be considered as having resources and uses of special national significance. The study also noted with concern the presence of unexploded ordnance in the waters off Kahoolawe from Navy bombing exercises. The study recommended that additional areas within the Hawaiian Islands be considered as possible components of a multiple-site, multiple-resource NMS. The study also analyzed existing resource management authorities and concluded that a NMS could contribute to enhanced resource management in Hawaii. C. The Oceans Act of 1992 In 1992, Congress held hearings to consider reauthorization and amendments to title III of the MPRSA. Representatives from the State of Hawaii provided testimony to Congress on the need and desirability of having a Humpback Whale NMS in Hawaii. This testimony, in addition to the findings of the Kahoolawe Feasibility Study, provided the basis for Congressional interest in designation of the Sanctuary. On November 2, 1992, President Bush signed Public Law 102-587, the Oceans Act of 1992, which made numerous amendments to title III of the MPRSA, including: increasing in the maximum civil penalty from $50,000 to $100,00.0; adding the authority to establish advisory councils to assist in the designation and management of national marine sanctuaries; adding authority for the Secretary of Commerce to enter into agreements with any non-profit organization to, among others, solicit donations of funds, property, and services to carry out the purposes and policies of Title III of the MPRSA; and citing Title III as the National Marine Sanctuaries Act. The Oceans Act also designated the Hawaiian Islands Humpback Whale National Marine Sanctuary. The Sanctuary, as designated, lies between 20'30' and 22'20' north latitude and 156'00' and 159*30' west longitude. The Congressionally-designated boundary occupies all contiguous coastal waters between the islands of Maui, Molokai, and Lanai, and extends seaward of these islands to the 100 fathom isobath, a horizontal distance ranging for a few hundred meters seaward of the shoreline on the eastern side of Maui to Penguin Bank, some 24 nautical miles southwest of Molokai. The Sanctuary also includes a small rectangular area, from the shoreline to the 100-fathom isobath adjacent to Kilauea Point on Kauai. The Act allows for boundary modifications necessary to fulfill the Sanctuary's purpose, and identified the waters around the island of Kahoolawe for automatic inclusion as part of the Sanctuary on January 1, 1996, unless the Secretary of Commerce certified the area is unsuitable for inclusion. In December, 1995, the Secretary certified to Congress that the waters around Kahoolawe are unsuitable for inclusion, and therefore, the waters around Kahoolawe are not included in the Sanctuary at this time. The HINMSA was amended in 1996 to provide a process by which the KIRC could request that NOAA include the marine waters within three nautical miles from Kahoolawe in the Sanctuary. Final Environmental Impact Statement Page 13 and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuarv Under the HINMSA and the NMSA, the Governor of Hawaii has the authority to, within 45 days continuous session of Congress beginning on the (late of issuance of the Federal Register notice containing the final implementing regulations, certify that the Management Plan, regulations, or any term of the plan or regulations is unacceptable. If the Governor makes such certification, the Management Plan, regulation(s), or term(s) thereof will not take effect in State waters within the Sanctuary. The Secretary of Commerce would then make a determination as to whether the Governor's action will affect the Sanctuary in a manner that the goals and objectives of the HINMSA cannot be fulfilled, and if so, the Secretary may terminate the entire designation. NOAA -has coordinated and cooperated closely with the State of Hawaii in developing the Sanctuary's Management Plan. d. The Draft EIS/MP Section 2306 of the HINMSA requires NOAA to develop a comprehensive Management Plan and implementing regulations to achieve the policy and purposes of the HINMSA, following the procedures specified in sections 303 and 304 of the NMSA. Section 304(a)(2) requires the preparation of a draft environmental impact statement, as provided by the National Environmental Policy Act of 1969 (NEPA). The HINMSA also directs that opportunities be made available for the public to participate in the development of the Management Plan. To satisfy these requirements, as well as those of the NMSA and the NEPA, a series of scoping meetings were held in March, 1993, on each of the main islands and in Washington, D.C. The input received during those scoping meetings was extensive and covered a bioad spectrum of issues. The impacts many people wanted addressed were those relating to potential regulatory restrictions on specific industries (e.g., fishing, vessel traffic, tourism). (For a synopsis of the scoping meetings, see the DEIS/MP's Appendix D-1.) After the scoping meetings, and in cooperation with the Office of the Governor-Office of State Planning,. SRD provided funding to support the organization of, and incidental expenses related to, the establishment of a Sanctuary Working Group (SWG) consisting of 50 individuals, representing Federal, State, andcounty governments, and a diverse array of interest groups. The SWG provided comments on a number of issues, management options, and a Discussion Paper, which was later used to further the public participation process for gathering input into the development of the Draft Management Plan. In March 1994, additional public meetings were held on each of the main Hawaiian Islands to gather additional input and get public reaction to such issues as: 1) the Sanctuary boundary; 2) potential regulations; 3) education and information; 4) research and monitoring; 5) administration; and 6) identification of other resources of national significance for possible inclusion in the Sanctuary. (A summary of the input received at each of those meetings is included in the DEIS/MPs Appendix D-2.) The public has been sharply divided in their support for the Sanctuary. Those who opposed the Sanctuary were concerned that their access to marine waters may be limited by Sanctuary regulations -- a particularly emotional issue since Hawaii is an insular state and has ongoing Native Hawaiian sovereignty issues to address. Those who supported the Sanctuary saw its value in addressing multiple species in the context of an ecosystem management approach. Those who were undecided were unclear about the details of the Sanctuary such as the composition of the SAC, administration structure and location, and regulations. Technical consultation meetings were held in February-March 1994, with different experts and interest groups to collect information for the DEIS/MP to establish a better understanding of coordination and cooperation needs and how a Sanctuary can complement and enhance existing efforts. Needs were identified for various marine users, including the military, fishing and boating interests, researchers and educators, and regulatory and enforcement personnel. SRD has attempted to reflect these concerns in the development of the Management Plan. Page 14 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Backyround National Marine Sanctuary The DEIS/MP, published in September 1995, stated the following: Humpback whales use Hawaiian waters for breeding and rearing their young, and migrate throughout the Hawaiian Islands during this time. Little or no feeding occurs during this time and the whales prefer the shallower warmer waters for their activities. Scientists believe that there is an increase in the number of whales using Hawaiian waters, in recent years. There are numerous legal protections and management plans afforded to whales, including international treaties promulgated pursuant to the International Whaling Commission, the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA), State of Hawaii anti-harassment regulations, and the 1991 Humpback Whale Recovery Plan developed and implemented by NMFS. Human activities that could affect humpback whale behavior and whale habitat in Hawaii include: 1) noise from vessels, aircraft, and near-shore construction projects; 2) vessel traffic; 3) disturbance from recreational boating, tour-boating, jet skiing, and parasailing; 4) degradation to the water quality from waste disposal and non-point source pollution from coastal development; and 5) by the'physical loss of habitat or activities that may cause whales to abandon their habitat and/or interfere with reproductive behaviors. For most of these activities, additional monitoring and research would be required before determinations could be made on the degree of impact on whales from such activities and any management schemes that would be necessary to help minimize the conflicts and impacts (see DEIS/MP, p. 49). There are a number of agencies and pieces of legislation in place offering regulatory protection to the humpback whale and the DEIS/MP identified no regulatory or management gaps in addressing these impacts. Rather, the DEISIMP cited a lack of coordination among the agencies in management, education, research, monitoring, enforcement, and a larger tl ecosystem-based framework within which to assess these impacts on a cumulative basis. � Population, tourism, and uses of the marine environment will continue to increase. Changes in the economy and associated changes in land use patterns resulting from the decline in agriculture will have impacts on the amount and type of runoff into marine waters from land. Both the number of people on the water and the pollutants entering the water from land can affect the suitability of the marine waters for breeding, birthing, and rearing of young whales. � Hawaiian waters support many resources of national significance other than whales including intertidal communities, extensive shallow and deep water coral reefs, numerous cetaceans and seabird species, and pinnipeds. Marine areas of special significance are protected by State Marine Life Conservation Districts, Fishery Management Areas, and Ocean Recreation Management Areas. i. DEIS/MP Preferred Alternative The DEIS/MP proposed the following preferred alternatives for the Hawaiian Islands Humpback Whale National Marine Sanctuary: Boundary The preferred boundary includes the area from the shoreline to the 100-fathom isobath depth contour (600 feet) around the following areas of the main Hawaiian Islands: Maui, Lanai, and Molokai, including Penguin Bank and the deep water channels connecting them, the Blia Island, eastern Kauai, and portions of north and south Oahu. NOAA did not include the area Final Environmental Impact Statement Page 15 and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary within three nautical miles of Kahoolawe Island, select ports, harbors, and small boat basins, and military use areas off Kauai and Oahu. Regulations No new regulatory prohibitions were proposed for the Sanctuary. Rather, the Sanctuary will essentially incorporate the following existing restrictions to enhance enforcement effectiveness: 0 existing approach and harassment regulations that protect humpback whales promulgated by NMFS under the MMPA and ESA; 0 regulations prohibiting discharges into the Sanctuary, or discharges outside of the Sanctuary that subsequently enters the Sanctuary and injures a humpback whale and/or its habitat; and 0 regulations prohibiting alteration of the seabed in the Sanctuary. Future regulations not listed in the scope of regulations would require public notice and comment and, be subject to gubernatorial review and approval. No mechanisms for requiring independent Sanctuary permits are proposed. Management The Sanctuary will be a year-around program (rather than seasonally implemented) that will focus on humpback whales and their habitat. The Sanctuary will rely on an existing Memorandum of Understanding (MOU) between NMFS and the National Ocean Service (NOS) to undertake enforcement activities in the .Sanctuary. Under this MOU, NMFS enforces Sanctuary regulations in consultation with the Sanctuary Manager. NMFS also has an MOU with the U.S. Coast Guard and DLNR- Department of Conservation and Recreation Enforcement which deputizes these other agencies to enforce MMPA and ESA regulations (see Appendix E). Sanctuary staff will work with the Department of Health (DOH), the Department of Land and Natural Resources (DLNR), EPA, Coast Guard, and COE to cooperatively monitor and enforce existing water quality and alteration of the seabed activities. Sanctuary staff will also consult with the appropriate Federal, State, or county agencies on any violation of discharge and alteration of the seabed'requirements and'authorities. Ultimately, Sanctuary staff will seek to develop an MOU or other mutual understanding between the Sanctuary Program and other- agencies regarding coordinated enforcement activities and actions in Hawaii. The intent of the enforcement program is to achieve voluntary compliance with the regulations through education. No mandatory user fees are proposed by the Sanctuary Program in the Hawaii Humpback Whale National Marine Sanctuary. Management Plan Management Priorities: The Sanctuary will focus on present and potential activities that may adversely affect the whales directly (harassment and disturbance) and those factors that may impact water quality and/or modify the seafloor -- two major components of the whale's habitat. Page 16 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Back-round National Marine Sanctuary Research and Monitoring Priorities: The research program will focus on improving the understanding of the relationship between the status of the humpback whale stocks and the quality of their environment. Education and Outreach Priorities: The education program will focus on raising awareness of the significance of humpback whales and their habitat and other marine resources while promoting public and private uses of the.Sanctuary. Administration Location: Based on the preferred boundary, the Sanctuary headquarters will be located in Kihei, Maui. Staffing: Depending on the budget, the Sanctuary Will hire a manager, administrative assistant, education coordinator, research coordinator, and other staff as needed. While the Sanctuary will not have its own enforcement presence, SRD will explore the possibility of funding enforcement positions in other agencies such as NMFS, DOH, or DLNR. Sanctuary Advisory Council (SAQ: The SAC, comprised of 25 members with broad statewide representation including researchers, county representatives, and interest groups will serve *as an advisory body to the Sanctuary Manager and to NOAA. e. The Final Management Plan The DEIS/MP was released to the public in September 1995, initiating a 90-day public comment period that ended on December 15, 1995. Over twenty-five statewide informational meetings were held to assist the public in understanding the proposal and to answer questions and concerns. SRD also held seven formal public hearings throughout the main Hawaiian Islands. In total, over 250 written comments and oral testimonies were received by NOAA during the comment period. The concerns raised in the comments addressed: boundaries; Kahoolawe; regulations; fishing; enforcement; management/scope; the SAC; research, education; Native Hawaiians; user fees; funding for the program; socio-economic impacts; need for the Sanctuary; the manner in which the Sanctuary was designated; and Feder 'al presence in State waters. The response to these public comments are found in Appendix A, and incorporated into relevant sections of the FEIS/MP, as appropriate. NOAA's preferred alternatives for the boundary, regulations, and management remain similar to those listed, in the Draft EIS/MP. Changes and clarifications were made to respond to public comments. The following section summarizes the modifications, clarifications, or revisions made in the FEIS/MP. Part I - Introduction: In addition to providing information about the National Marine Sanctuary Program and the history of the Hawaii Sanctuary, Part I has been modified to provide a summary of NOAA's preferred alternative and to identify the significant changes made between the draft and final environmental impact statements. Part II - Description of the Affected Environment: This part was revised to reflect new or updated information. The most significant changes were made to the section on humpback whales in response to public comments. A new section was added to clarify that the establishment of the Sanctuary does not convey title or ownership to NOAA of Hawaii's submerged lands. Final Environmental Impact Statement Page 17 and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary Part III - Alternatives: Parts of the alternatives were modified or clarified to address public comments received on the DEIS/MP. The significant changes relating. to the boundary and regulations-are noted in the table below. Part IV - Environmental and Socioeconomic Impacts.: This part has been expanded to more clearly portray. the impacts between the status quo alternative and the preferred alternative. Particularly, the section describing the regulatory impacts dealing with discharge and- alteration of the seabed activities has been expanded to address public comments. Part V - Mana2ement Plan: This part has been modified to reflect specific changes made in parts 1-4 and to further clarify the roles of the various- Federal and State resource agencies as they pertain to Sanctuary management. Appendices: Appendix A contains NOAA's response to comments received on the DEIS/MP. Appendix E contains MOUs regarding the coordination of Federal and State resource agencies for activities that may impact Sanctuary resources. TABLE 1-1: Significant Changes Made to Final EIS/MP Draft EIS: Change Made to Final Why Change Was Made: EIS/MP: Boundary: -Boundary: This change clarifies and simplifies the "...from. the mean highwater "...from, the shoreline to the 100- inshore boundary of the Sanctuary. mark to the 100-fathom fathom isobath..." was added to Shoreline is defined as: isobath..." boundary definition. "the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the I@ghest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper. limit of debris left by the wash of the waves." The Sanctuary inshore boundary is now consistent with the Coastal Zone Management Program and DLNR definition. As defined, the shoreline is also consistent with DLNR's survey and certification standards. Boundary: "cutting across the mouths of Clarifies that the preferred Sanctuary rivers and streams ... 9' was added boundary does not go up rivers, streams, to boundary definition or other inland water areas. Boundary: Listing of Ala Wai small boat The Ala Wai small boat basin lies within basin as a harbor excluded from the preferred boundary. The regulations the preferred boundary. state specific ports, harbors, and small boat basins are to be excluded. Regulations: County regulations and permit Discharges and alteration of the seabed processes have been removed activities are primarily regulated by from the scope of Sanctuary Federal and State agencies. re lations. Regulations: Combined to read: To streamline the language and to be Prohibited Activities (1) Approaching, or causing a consistent with the list of Activities (1) Approaching, within the vessel or other object to Subject to Regulation. Sanctuary, by any means, within approach, within the Sanctuary, 100 yards... within 1.00 yards... (2) Causing a vessel or other object to approach, within the ISanctuary, within 100 yards... I Page 18 Final Environmental Impact Statement and ManaLyernent Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Background National Marine Sanctuary TABLE 1-1: Significant Changes Made to Final EIS/MP (Continued) Draft EIS: Change Made to Final Why Change Was Made: P EIS/MP: Enforcement: Sanctuary and State roles were Clarifies that individual State permit clarified regarding the issuing agencies make the initial enforcement of Sanctuary determination as to whether a State habitat related regulations discharge or alteration of the seabed permit has been violated, and would therefore be in violation of a Sanctuary habitat regulation. Designation Document: Removed from the Scope of The scope of regulations now mirror the Activities Subject to Regulation: Regulation actual regulations. Consequently, any new f. Operation of a vessel (i.e., proposed regulations will be subject to the watercraft of any description) in full designation process, including public the Sanctuary in a manner that hearing and comment, preparation of the may adversely impact any supplemental EIS/MP, and gubernatorial humpback whale or humpback review and approval. whale habitat;... Designation Document: "...review by the appropriate To clarify that the Governor will have Article VI. Alteration of This Congressional committees, and objection authority over any proposed Designation review and non-objection by the modification to the terms of designation, "...review by the appropriate Governor of the State of Hawaii which include the boundary and new Congressional committees, and and, review and approval of the regulations. If the Governor objects, such the Governor of the State of Secretary of Commerce..." modification will not take effect in State Hawaii, and approval by the waters. Secretary of Commerce..." Part II - Description of Dis@ussion of scientific data on More current information has become humpback whales humpback whales and their available since the Draft EIS/MP was habitat has been significantly prepared. SRD has incorporated this new updated, 'data to make the Final EIS/MP more current in its assessment of Sanctuary resources. Part V - Management Plan. As Process for this review is To outline the specific procedures the noted in the NMSA, a review of outlined in Part V which State and NOAA will follow in the Management Plan is involves significant participation undertaking the review. required every five years. by the State. Part V - Management Plan Clarification made that there To clearly state that there will be no User Fees and Special Use will be no special use permits or special use permits or user fees in the Permits user fees in the Hawaii Hawaii Sanctuary. In addition, the NMSA Sanctuary was reauthorized in 1996 to, in part, specifically prohibit user fees in the Hawaii Sanctuary. Other significant concerns that have been addressed during the completion of the FEIS/MP: � A Memorandum of Understanding (MOU) between SRD and Hawaii's DOH and DLNR is under development which outlines the mechanism by which NOAA and the State will coordinate the review of applications for State permits to conduct discharge or alteration of the seabed activities which are subject to Sanctuary regulation. A copy of the draft MOU is found in Appendix E of this FEIS/MP. � SRD and NMFS have developed an MOU concerning permit review and coordinated consultations for activities that may affect humpback whales or their Sanctuary habitat Final Environmental Impact Statement Page 19 and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary (Appendix E). SRD and NMFS are also developing another MOU concerning the I coordination of their other management activities in the Sanctuary. NOAA's Office of General Counsel will develop a civil penalty schedule outlining the range of fines associated with violations of Sanctuary regulations. The civil penalty schedule will be made publicly available. The Sanctuary Advisory Council (SAC) has been established and is working to provide advice and recommendations to SRD on the implementation of the Sanctuary (See Part V for more discussion on the SAC.) In addition to the changes identified above in response to public comments, numerous editorial changes have been undertaken to make the document more "user-friendly," including a reorganization of Parts I and V. D. CONSULTATIONS 1. Endangered Species Act Requirements Pursuant to Section 7 of the ESA, the Fish and Wildlife Service of DOI, and NMFS, have been consulted regarding possible impacts on threatened or endangered species that might result from the preparation and implementation of a management plan and regulations as required by the Sanctuary. designation. These consultations confirmed that some five endangered (E), four threatened (T) and one candidate species are.either known to, or may occasionally, occur in the area; and, that Sanctuary. designation is not likely to adversely affect any of these species. The species identified are: Hawksbill turtle (Eretmoehelys imbricata) ................................................ E Green sea turtle (Chelonia mydas) ............................................................. T Leatherback sea turtle (Dennochelys coriacea) ..........................................E Loggerhead sea turtle (Carena caretta) ..................................................... T Olive ridley (Lepidochelys olivacea) ......................................................... T Hawaiian monk seal (Monachus schauinslandi) ........................................E Humpback whale (Megaptera novaeangliae) ............................................E Hawaiian dark-rumped petrel (Pterodroma phaeopygia sandwichensis).. E Newells' shearwater (Puf flnus auricularis) ................................................ T Band-rumped storm-petrel (Oceanodroma castro cryptoleucure) ............. T(candidate) 2. Resource Assessment Section 303(b)(3), of the NMSA [16 U.S.C. �1433(b)(3)] requires a resource assessment report documenting present and potential uses of the proposed Sanctuary area, including uses subject to the primary jurisdiction of DOI. The resource assessment, including a description of biological and cultural resources and human uses can be found in Part II of the FEIS/MP. This requirement has also been met through consultations with DOI, NMFS, the Hawaii Office of Planning, and in the development of a report entitled: "A Site Characterization Study for the Hawaiian Islands Humpback Whale National Marine Sanctuary" (University of Hawaii Sea Grant College Program 1994). This Site Characterization Study was useful in providing many significant details described in this FEIS/MP. Interested readers, can receive a copy of this report from one of the Sanctuary offices, the Hawaii Office of Planning, or copies will be distributed-to the following public libraries in Hawaii: Page 20 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 1: Introduction and Background National Marine Sanctuary Kauai: Lihue, Kapaa, Waimea, Hanapepe, and Koloa Public Libraries Oahu: Honolulu, Hawaii Kai, Waimanalo, and Kahuku Public Libraries Maui: Wailuku, Kahului, Hana, Kihei, and Lahaina Public Libraries Molokai: Molokai Public Library Lanai: Lanai Public Library Big Island: Hilo, Kailua-Kona, Keaau, Kealakekua, Kohala, and Waimea Public Libraries 3. Federal Consistency Determination Section 307 of the Coastal Zone Management Act of 1972, as amended, requires that "[e]ach Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable, with enforceable policies of approved State management programs. A Federal Consistency Determination has been submitted to the Coastal Zone Management Program within the Hawaii Office of Planning (OP). The Hawaii OP will review the consistency determination along with the final Sanctuary management plan and will either concur or object with NOAA's determination that the implementation of the HIHWNMS Is consistent with Hawaii's CZMP. Final Envitonmental Impact Statement Page 21 and Management Plan Part 1: Introduction and Background Hawaiian Islands Humpback Whale National Marine Sanctuary This Page Left Intentionally Blank Page 22 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary PART 11 -- DESCRIPTION OF THE AFFECTED ENVIRONMENT TABLE OF CONTENTS PAGE A. THE PHYSICAL ENVIRONMENT ......................................................... 27 1. Geographic Setting ......................................................................... 27 2. Ph Characteristics ................................................................... 27 .ysical- a. Geology ................................................................................... 27 b. Geomorphology/Bathymetry ......................................................... 28 c. Meteorology and Climatology ........................................................ 29 d. Oceanography .......................................................................... 31 e. Ocean Chemistry ....................................................................... 32 B. BIOLOGICAL RESOURCES ................................................................ 34- 1. Humpback Whales ......................................................................... 34 a. Natural History ......................................................................... 34 i. Species Description and Taxonomy ............................................. 34 ii. Distribution/Zoogeography ...................................................... 35 iii. Populations and Subunits ......................................................... 36 iv. Habitat Use and Behavior ......... ... 36 1) Summering Areas -- Feeding ................................................ 36 2) Migrations ..................................................................... 38 3) Wintering Areas -- Reproduction ........................................... 38 V. Natural Mortality .................................................................. 39 b . North Pacific Population of Humpback Whales .................................... 39 i. Use of Feeding and Wintering Areas ........................................... 39 ii. Abundance and Trends ........................................................... 39 iii. Stock Structure .................................................................... 40 iv. Humpback Whale in Hawaiian Waters ......................................... 41 1) Historical Presence ........................................................... 41 2) Reproduction .................................................................. 42 3) Singing ......................................................................... 42 4) Humpback Whale Distribution .............................................. 43 5) Humpback Whale Cow-Calf Distribution ..........I ....................... 49 6) Habitat Use ..................................................................... 49 7) Abundance Estimates ......................................................... 50 c. Known and Potential Impacts to Central North Pacific Stock .................... 51 i. Entrapment and Entanglement in Fishing Gear or Mooring Lines .......... 51 ii. Collisions by Ships ............................................................... 52 iii. Acoustic Disturbance ............................................................. 52 1) Disturbance and Noise from Ships, Boats, and Aircraft ................. 52 2) Commercial Whale Watching Boats and Research Boats ................. 53 3) Noise @ from Industrial Activities (Construction and Dredging) .......... 54 4) Sonars .......................................................................... 54 5) Explosions ..................................................................... 54 6) Ocean Science Studies (ATOC) ............................................. 54 iv. Habitat Degradation ................................................................ 55 1) Chemical Pollution (Point and Non-Point) ................................ 55 2) Habitat Disturbance ........................................................... 56 d. Protection, Legislation, and Management ........................................... 56 Final Environmental Impact Statement Page 23 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary 2. Other Marine Resources of Hawaii ....................................................... 57 a. General Information ................................................. ................. 57 b. Nearshore Ecosystems ................................................................ 58 i. Shoreline Ecosystems ............................................................... 58 ii. Subtidal Ecosystems ............................................................... 61 c. Cetacean Species Found in Hawaii .................................................. 62 i. Pacific Bottlenose Dolphins .......... * ............................................ 65 ii. False Killer Whales ................................................................. 66 iii. Spinner Dolphins ................................................................... 66 iv. Spotted Dolphins .................................................................... 66 v. Odontocete Prey Species ......................................................... 67 vi. Predators ............................................................ I............... 67 vii. Odontocete Distribution Trends ................................................. 67 d. Other Endangered or Threatened Species ...................... 1...................... 67 i. Sea Turtles ............................................................................ 67 ii. Hawksbill Turtles .................................................................. 68 iii. Green Sea Turtles ..................... 68 iv. Sea Birds ............................................................................. 69 v . Hawaiian.Monk Seal ............................................................... 69 C. CULTURAL AND HISTORICAL RESOURCES AND USES .......................... 71 I . Native Hawaiian Settlements and Social Patterns ...................................... 72 2. Aquaculture/Fishponds ..................................................................... 73 a. Estimate of Number and Distribution ............................................... 74 b. Fishponds Today ...................................................................... 74 c. Implications for the Sanctuary ....................................................... 75 3. Religious Practices and Artifacts ......................................................... 76 4. Kahoolawe Island ...................... "' ................................................. 77 a. Kahoolawe Island Reserve ........................................................... 77 5. Submer2ed Lands ............................................................................ 79 6. Traditional Native Hawaiian Uses ....................................................... 79 7. Shipwrecks ............................................................ ..................... 79 D. HUMAN ENVIRONMENT AND ACTIV=S .......................................... 80 1. Socio-Demogrgghic Profile ............................................................... 80 a. Population and Ethnic Make-Up ..................................................... 80 b. Labor Force ............................................................................ 81 2. Human Activities ............................................................................ 82 a. Fishing (Description of Activities, Numbers Involved, and Econon-iic/Cultural Importance) ...................................................... 82 i. Commercial ........................................................................ 82 ii. Recreational ........................................................................ 86 iii. Charterboat Fishing ............................................................... 86 iv. Aquarium Fish Industry ........................................................... 86 v . Fishponds; and Traditional Uses ................................................. 86 b . Commercial Shipping ................................................................. 87 i. Economic Contribution ........................................................... 87 ii. Vessel Traffic ...................................................................... 87 iii. Hawaii Ports and Harbors ........................................................ 87 c. Tourism ................................................................................. 88 d. Ocean Recreation ...................................................................... 88 i. Recreational Activities ............................................................ 89 1) Boating ......................................................................... 89 Page 24 Final Erivironmental Impact Statement an d Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary 2) Surfing ......................................................................... 90 3) Swinuning ..................................................................... 90 ii. Commercial Activities ............................................................ 90 1) Tour Boats ..................................................................... 90 2) Thrill Craft ..................................................................... 91 3) Competitive Events ........................................................... 92 4) Canoe Racing and Kayaking ................................................ 92 5) Diving .......................................................................... 93 iii. Economic Contributions of Ocean Recreation ................................. 93 e. Ocean Waste Disposal ................................................................... 94 i. Water Quality ...................................................................... 94 ii. Point Source Discharges ......................................................... 94 iii. Non-Point Source Discharges ................................................... 95 iv. Ocean Dumping and Dredge Material ........................................... 96 f. Department of Defense Activities ...................................................... 97 i . Expenditures .................................................. I..................... 97 ii. Activities/Operations in Hawaiian waters ...................................... 97 iii. Other Military Operations in the Hawaiian Islands ............................. 98 g . Energy and Industrial Uses ............................................................. 99 i . Hydrocarbon Resources .......................................................... 99 ii. Ocean Thermal Energy Conversion ........................................... 100 iii. Geothermal Energy/Underwater Electrical Transmission Cables .......... 100 iv. Marine Hard Minerals .......................................................... 101 v . Sand Resources ................................................................. 102 h. Agriculture ............................................................................... 102 j. Aviation ................................................................................. 103 k. Research ................................................................................ 104 1. Current Education Efforts to Address Management Concerns ................... 105 m. Existing Protected Areas .............................................................. 105 i. Protected Areas .................................................................. 105 ii. Federal Protected Areas ........................................................ 106 1) National Wildlife Refuges ................................................. 106 2) National Parks .............................................................. 106 iii. State Protected Areas ........................................................... 107 1) Marine Life Conservation Districts ....................................... 107 2) Fishery Management Areas ................................................ 107 3) The Natural Areas Reserves System ..................................... 107 4) Underwater Parks .......................................................... 107 5)- Conservation Land Use Districts Protection Subzones ................ 107 6) Other State Marine Protection Areas ...................................... 107 7) Ocean Recreation Management Areas .................................... 107 iv. Private Protected Areas .......................................................... 108 v . Special Protected Areas ......................................................... 108 3. Institutional Arrangements and Responsibilities ......................... i ............... 108 a. Federal Authorities ..................................................................... 108 i. Marine Wildlife Protection and Conservation Authorities ................... 108 1) The Fish and Wildlife Coordination Act .... 108 1) The Marine Mammal Protection Act ...................................... 108 2) The Endangered Species Act .............................................. 110 ii. National Marine Fisheries Service, Southwest Region ..................... 110 iii. U.S. Fish and Wildlife Service ................................................. 112 iv. Marine Mammal Commission ................................................. 113 v . Marine/Coastal Zone Protection ............................................... 113 1) The Coastal Zone Management Act of 1972 ............................. 113 Final Environmental Impact Statement Page 25 and Management Plan Part 11: Descfiption of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuarv vi. NOAA/Office of Ocean and Coastal Resource Management ............... 114 vii. National Park Service ........................................................... 114 viii. Fisheries Management ........................................................... 114 1) The Magnuson Fishery Conservation and Management Act .......... 114 ix. Marine/Coastal Development .................................................. 115 1) Federal Water Pollution Control Act ..................................... 115 2) Rivers and Harbors Act .................................................... 115 3) The Outer Continental Shelf Lands Act .................................. 115 X. Water Quality ................................................................. :.. 116 1) Point and Non-Point Source Discharges ................................ 116 2) Dredging and Ocean Dumping ............................................ 116 3) Vessel Sewage .............................................................. 117 xi. Oil Pollution .......................... ; ........................................... 117 1) Clean Water Act . ........................................................... 117 2) Oil Pollution Act of 1990 .................................................. 117 3) International Convention for the Prevention of Pollution of the Sea by Oil/Oil Pollution Act of 196 1 /International Convention for the Preservation of Pollution from Ships, 1973 .................... 119 xii. Marine Transportation Safety .................................................. 120 1) The Ports and Waterways Safety Act .................................... 120 b State and County Authorities ......................................................... 120 i Environmental Impact Statement Law ........................................ 120 1) Hawaii -Coastal Zone Management Act ................................... 120 2) Coastal Zone Management Areas .......................................... 121 3) Areas of Particular Concern and Priorities of Use ...................... 121 4) Hawaii Ocean and Submerged Lands Leasing Act ..................... 121 5) Protection of Marine and Coastal Species ............................... 122 6) Water Quality Standards ................................................... 122 7) Point-Sources of Pollution ................................................ 123 8) Non-Point Sources of Pollution .......................................... 123 9) Oil P0* Hution ................................................................... 124 10) Ocean Recreation and Coastal Area Rules ............................... 124 11) Humpback Whale Approach Regulations ................................ 125 12) Ocean Recreation ........................................................... 125 13) Humpback Whale Protected Waters ...................................... 126 14) Fisheries Regulation ......................................................... 126 15) Other State Marine Protected Areas ....................................... 127 16) Enforcement of State Regulations ........................................ 127 Page 26 Final Environmental Impact StatemenT and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary This part of the Final Environmental Impact Statement describes the environmental and socio-economic characteristics of the affected area pertinent to the planning for and understanding of Sanctuary management needs. The following sections summarize information about the marine environment, its uses, and its users. Much of the information contained in Part II can be found in "A Site Characterization Study for the Hawaiian Islands Humpback Whale National Marine Sanctuary" (March 1994) prepared for NOAA by the University of Hawaii Sea Grant Colleg L-e Program, School of Ocean and Earth Science and Technology. All references are included in the bibliography located in Appendix J. A. THE PHYSICAL ENVIRONMENT 1. Geographic Setting The Hawaiian Archipelago is a group of eight major islands together with 124 islets (some of which are unrelated to the archipelago), shoals, and reefs stretching 2400-km (about 1,490 nautical, or 1,600 statute miles) along a southeast-northwest axis in the North Central Pacific. Lying in the Tropic of Cancer between 154'40' to 178'75'W longitude and 18'40' to 28'25' N latitude, the major islands in order of size are: Hawaii (referred to as the Big Island), Maui, Oahu, Kauai, Molokai, Lanai, Niihau, and Kahoolawe. The,State of Hawaii consists of 16,760 sq. km (6,471 sq. mi.) of land; ranges in elevation from sea level to 4,205 m (13,796 ft) at the peak. of Mauna Kea on the Big Island; and has 1,207 km (750 mi.) of coastline with 40 sq. mi. of estuaries, harbors, and bays. The major ocean and interisland channels are shown in Figure 11- 1. The four counties of Hawaii are: Hawaii, the City and County of 160-W 158-W 156-W Honolulu, Kauai, and Maui. The A A A Hawaiian Islands Humpback Whale National Marine Sanctuary as currently KAU-411 designated exists predominantly within the County of Maui, which is Oahu NHJ@au commonly refeffed to as the "four- & M410k., C1,91, island" area consisting of Maui, Molokai, Lanai, and Kahoolawe (see waui 21-N Figure 111-2 in the following chapter). LanM 4p Congress also designated as part of the 4 Sanctuary the waters off the shore of 2 the Kilauea National Wildlife Refuge, Kauai. NOAA is proposing to expand the Sanctuary to include the Big Island, eastern Kauai, and portions of Oahu. Hawaii is located some 2,500 NoA nautical miles (4,060 km) from the y y y y y California coastline and 2,800 nautical miles (4,500 km) from southeastern Alaska, which is considered to be one Figure 11-1 Main Hawaiian Islands of the major summer feeding grounds for humpback whales. 2. Msical Characteristics a. Geology 2*0 The Hawaiian Islands were formed during the last few rniMon years by the gradual accretion of basaltic lava flows and ejecta. Their geologic features have been formed by successive Final Environmental Impact Statement Page 27 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary periods of volcanic activity interspersed with submergence, weathering, and fluctuations in sea level (Wyrtki 1990). The islands rise 9, 100 m above the sea floor, and the Island of Hawaii has a maximum elevation of4,500 m above sea level [U.S. Environmental Protection Agency (EPA) 1980; Menard 1964]. The volcanic activity that created the Hawaiian Islands formed comparatively gradual mountain masses that rise abruptly from the relatively smooth archipelagic apron of the adjacent sea floor. This apron extends a few tens of kilometers outward from the islands and is peculiar because it slopes slightly upward from the base of the islands. The sea floor at the base of the islands is slightly depressed and forms a moat-type structure around the islands. Beyond the moat is a bulge or arch, apparently formed by the weight of the islands pushing the displaced material outward (Menard 1964). The islands generally are surrounded by coral reefs and contain numerous bays. Along some of the windward shorelines where perennial streams empty into the ocean, estuarine-like conditions prevail. Abundant rainfall and persistent northeasterly trade winds contribute to the steady weathering of the islands. Sandy beaches are found along the shorelines of all the islands but are best developed on Kauai, the oldest of the main islands, and least developed on Hawaii, where mountain-building and shoreline creation is still occurring. In places throughout the State and in Maui County, there occurs a phenomenon in which there is a net loss of beach volume with a c.oncorrutant increase in offshore sand deposits. There are no known oil and gas deposits within the nearshore area of the State, and manganese nodule deposits and cobalt rich crusts lie far offshore. Sand is the most commercially valuable nearshore mineral with large deposits located in a number of sites. b. Geomorphology/Bathymetry The islands of Maui, Lanai 'Molokai, and Kahoolawe are the remnants of a single massive volcanic conglomerate formed by at least six major and one rninor volcano. During a period of low sea level (in the recent geologic past), these four islands were connected to form a single island called "Maui Nui" [MacDonald et al. 1983; U.S. Department of Commerce (DOC) 1983]. This island had an area of about 5,200 km2 (about one-half the size of the present island of Hawaii). Extensive periods of erosion, emergence, and subsidence in combination with changes in sea level shaped Maui Nui to its present configuration, drowning the base of the island and creating not one, but four separate islands. The adjoining submerged base of Maui, Lanai, and Molokai ranges in depth from about 30 m to 80 m. Hence, about half of the Congressionally-designated Sanctuary is less than 80 m in depth. Penguin Bank is noted for major concentrations of humpback whales during their winter stay in Hawaiian waters. The average depth of water over Penguin Bank is about 60 m, but ranges from 50 m to 200 m. There is a lack of -information regarding the specific geology of the very near coastal waters (i.e., 100 m to 200 m depths). Observations made from research submersibles at Penguin Bank and in the general vicinity of the Congressionally-designated Sanctuary indicate that at depths of 60 m to 120 m the bottom is composed primarily of sand With occasional outcrops of coarse sediment, limestone talus, limestone holes, and platforms (B. Muffler, Hawaii Undersea Research Laboratory, pers. comm. 1993). In addition, carbonate organisms including red and green calcareous algae, bryozoans, corals, and pen shells have been observed at depths of 40 m to 90 m on Penguin Bank (Agegian and Mackenzie 1989). Bottom photography off of other coastal sites throughout the State, (e.g., Kahului Harbor, Maui; Nawiliwili, Kauai; Pearl Harbor, Oahu; Port Allen, Kauai; and Hilo, Hawaii) show -remarkable similarity at depths of 300 m to 1,600 m. At each site, the bottom is characterized by silty sand'and clay with only ocpasional cobbles, boulders, and rocky.outcrops. Whereas these Page 29 Final Environmental impact. Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary data reflect conditions slightly beyond the 100-fathom isobath, observations from submersible dives suggest that these characteristics are consistent with the shallow near coastal regions with an increase in the presence of rocky outcrops and coral rubble at the shallow depths. . The nearshore topography of Oahu is characterized by a series of marine terraces. The terraces, which are separated by escarpments, reflect periods of emergence, submergence, and changes in sea level. Specific bathymetric data have not been located for the nearshore areas of the islands of Maui, Molokai, and Lanai. (see insert: Information Gaps). On Oahu, however, the upper level terrace extends seaward to about 60. m followed by a steep escarpment and then a second or intermediate terrace from about 70 m to 120 m. Another steep escarpment is found at this depth and then a gently sloping terrace extends from about 130 m to the 600 m contour (Brock and Chamberlain 1968). Sonic depth recorders indicate a relatively flat or gently sloping bottom at depths near 200 m (100-fathom isobath) (EPA 1980). With few exceptions, the bottom topography from 400 m seaward is very steep and drops almost immediately to the abyssal plains at 4,800 m (2,400 fathoms). Because the submerged coasts of Maui, Molokai, and Lanai probably experienced similar periods of erosion, subsidence, emergence, and changes in sea level, it is proposed that the terraces on Oahu generally reflect similar types of geomorphic conditions. Information' Gaps While there may be many unique or unusual features found within the designated Sanctuary boundaries, those pertinent to physical oceanography seem to focus on two very distinctive characteristics: bathymetry and eddy circulation. The bathymetry of the area, bound by Maui, Molokai, Lanai, and Kahoolawe, along with the extension of the shallow Penguin.-Bank southwest of Molokai, represents a unique,. semi-enclosed, shallow protected sea in the midst of an expansive ocean. There is almost no information in the published literature as to the specific characteristics of this interisland area. General physical oceanographic information on the nearshore environment seaward to the 100- fathom isobath. is not available. The oceanographic data for waters on the periphery of the four- islands region outside the 100-fathom isobath is limited and somewhat dated. In the future, it may be useful to have a more detailed bathymetric survey using now available side scan sonar systems. This information, along. with suib-bottorn profiling, might offer insight into the topography that could influence - small-scale: current systems, sediment types and transport, and ecosystem characteristics and their, relation to. the distribution or migration, patterns of whales within these shallow waters. Figure IH-12 in the following chapter shows.the degree of extension of the 100-fathom isobath on all the main Hawaiian Islands. Significant shelves are found around Niihau and Kaula Rock, northern Kauai, the eastern and western shores of Oahu, and the Big Island, whose shelf is greatest along the northwestern shoreline. c - Meteorology and Climatology Although the Hawaiian Islands are at the northern edge of the tropics, they have a subtropical climate due to the cool ocean currents and persistent northeasterly trade winds that occur about 80 percent of the time, a condition that accounts in part for the lower diversity exhibited by Hawaiian coral reefs and associated marine communities, relative to other -areas in the Indio-.Pacific region (DOC 1983). The average wind velocity is between 10 and 20 knots (kt), but velocities over 20 kt for more than a week are not uncommon (Patzert 1970). Ocean temperatures are less than that of other areas at the same latitude and range from 21'C to 29'C (70OF to 850F). Occasional periods of southerly, or kona, winds may bring storm events. Final Environmental Impact Statement Page 29 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Winds blow many miles across the Pacific ocean before reaching the Hawaiian Islands. Rainfall occurs when warm, moisture-laden tradewind air is forced up and over mountain peaks causing condensation of atmospheric moisture. The northeastern sides of the islands (the direction of the prevailing winds) are usually the wettest. As the winds descend the leeward slopes, they become warm and dry, thus making the leeward coasts some of the driest in the State. Southerly winds can also bring rains and, in fact, the more serious storms frequently come from the south. Rainfall exceeding 24 inches in four hours has been recorded (Steams 1967). Annual rainfall over the State varies from 25 cm (10 in) near leeward shores to almost 1,270 cm (500 in) at Mount Waialeale on Kauai. Maximum precipitation usually occurs between altitudes 600 m. and 1,830 rn. (2,000 ft and 6,000 ft). Precipitation is, highly variable, however, and is heavily influenced by local topography and the sheltering effects of adjacent islands. This is particularly noticeable on the islands of Kahoolawe and Lanai, which are relatively low and shielded from the trade winds by other islands. Consequently, these islands are very dry and suffer severe wind erosion problems [Blumenstock and Price 1967, Steams 1967, Blumenstock and Price 1967, DOC 1991, Hawaii Department of Business, Economic Development, and Tourism (DBEDT) 19901. The importance of the air- sea interaction is evident in an analysis of the meteorological and oceanographic conditions 'of the Hawaiian Islands. The islands present a formidable barrier to the northeast trade winds. This is particularly true for the island of Hawaii, which presents a solid barrier of approximately 120 km to the k, winds (Figure 11-2) (Patzert 1970). Alenuihaha Channel, between' Maui and Hawaii, is bound by mountains higher than J. those bounding both sides of the 74Qz K@uai Channel. The "thickness of the atmospheric layer in which [Figure H-2 Hawaii Surface Winds the trade winds are dominant extends to a height of MW 86 approximately 1,800 m. (Patzert 4= 1970). The relationship between 3M the height of the islands and the elevation of the trade wind flow is clearly demonstrated in Figure 0 11-3. (Patzert 1970). The islands are over 1,000 rn above the trade wind layer. The other major islands may also serve as a "0 barrier to the wind, but are below the maximum height of the trade 3WO 1W Isr 1i; ar IWL.Or4 winds. Figure H-3 Maximum Height of Trade Winds Long-term measurements of winds taken by Honolulu Weather Bureau ship observations clearly show the marked effect on atmospheric circulation imposed by the islands. Wind speeds decrease in the lee of each island, whereas winds in the channels increase in strength. This effect is stronger in the Alenuihaha Channel than in the other channels where velocities of 20 kts to 25 kts Page 30 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary are not uncornmon. It has been postulated (Patzert 1970) that the increase in wind velocity is due to the constriction of trade wind flow in the channel. by the high mountains on either side, much like the "Venturi effect" of flows through a narrowed opening. Shear effects upon the incident trade winds are also seen in the lee of Hawaii. Cyclonic eddies develop to the north and anticyclonic eddies develop to the south. Atmospheric eddies have been shown to be a permanent feature during trade wind conditions in the lee of Hawaii and may occur in the lee of the other main islands as well, but are likely to be far less intense because the other islands are much lower and smaller than Hawaii. The presence of atmospheric eddies is also illustrated by the rainfall regime of the Kona coast of Hawaii. As previously mentioned, rainfall throughout most of the islands is considerably greater on exposed windward coasts than on the more protected leeward coasts; however, this is not the case along the leeward coast of Hawaii. Kona receives up to 150 cm/yr (60 in/yr) of precipitation in contrast to other leeward areas that receive less than 50 cm/yr (20 in/yr) (Patzert 1970) because of the blocking effect of the mountains (Mauna Loa in particular) on the trade wind showers. Heavy winds and waves affect boating and vessel activities as well as whale watching during the winter season. Hours of daylight have been postulated to influence the migration of the humpback whales from polar feeding grounds to tropical calving areas (Dawbin 1977). In Hawaii, there is little variation between the length of the days and nights from one part of the state to another because all the islands lie within a narrow latitudinal band (Blumenstock and Price 1967). Variation in length of day in Honolulu for'example, ranges from 13 hr 20 min (without twilight), to 14 hr 10 min (including twilight) at the longest day, and 10 hr 50 min to 11 hr 40 min (with and without twilight) for the shortest day (Blumenstock and Price 1967). This small variation in solar energy from one time of the year to another partially explains the slight changes in seasonal temperatures throughout much of the State. Persistent trade winds are a major factor in moderating the overall climate of the islands. d. Oceanography Coastal current measurements H-4) with diameters ranging from 50 km to 150 km. off the Hawaiian Islands (Wyrtki et al. 1969; Chave and Miller 1977) suggest a mean velocity less than 20 cm/sec in most cases; however, extreme variability is the rule, not the exception. Water circulation around the islands is driven by a combination of forces including tides, the West Wind Drift, circulation of the Eastern Pacific Gyre, and local wind and eddy systems. The latter have been extensively studied by University of Hawaii oceanographers (Wyrtki et al. 1967; Wyrtki et al. 1969; Wyrtki 1970; Patzert 1970; and Patzert et al. 1970). The main Hawaiian Islands WWAM CMEM are marked by variable current directions and velocity and the presence of well developed eddies lFigure H-4 Hawaii Surface Currents (University of Hawaii, 1983--Figure Final Environmental impact Statement Page 31 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Most of the eddies are cyclonic (i.e., an anticlockwise spiral) and are present during all seasons. The eddies are relatively shallow and are concentrated in the upper 150 m, well within the depth ranges of the Sanctuary. Flights with- airborne radiation thermometers attempted to map the horizontal distribution and movement of eddies over time by measuring cold spots that form in the center of cyclonic eddies (Figure 11-5) (Wyrtki 1970). These measurements identified periods of cooler water between Maui and Kahoolawe (Figure 11-6) (Wyrtki 1970); however, it was unclear if these periods werethe result of eddies or more likely reflected cool water adverting through the channel between Hawaii and Maui. The nearest to shore that eddies have been measured is 40 km (Patzert 1970). Upwelling has been noted in the central portion of the cyclonic eddies, reflecting a doming character. It should be noted that to date, none of the research on eddies has included the four- island area of the Sanctuary. It is unclear if the- eddies persist between the islands or if the wind and resulting current patterns are so modified by the island "shadow-b.arrier" effects as to eliminate the oceanic component.of the eddy close to shore. .0AH Ifirw or CPRMS UH - 17 4@@ 10; Umwce TairTura *0 /?** & . . ...... .. %J MAUI 1"W lea 170 202 050 1 0 , otsi 0 Q., i - . we ng 40 na 13 e ar HAWAII V0 NWAN 17 t V.4 ISO lea 1.% Figure U-5 Sea Surface Temperatures Figure 11-6 Depth of 20" isotherm e. Ocean Cherndstry There are three major water masses around the Hawaiian Islands: the North Pacific Central (NPQ, the North Pacific Intermediate, and the Pacific Deep Water (Table U-1) (Sverdrup et al. 1942). Of these, the NPC, which forms the shallow water masses and ranges in depth from 100 m to 300 m, is found within the Sanctuary. This water mass is characterized by temperatures ranging between 10'C and 18'C and salinities of 34.2 percent to 35.2 percent (EPA 1980). The NPC water has the highest salinity of the three, but this is countered by higher temperatures so its relative density is lowest. Page 32 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary* TABLE 11-1: ajor Water Masses of the North Pacific Water Mass Depth (m) Temperature(Q Salinity (glkg) North Pacific Central 100-300 18 34.2-35 ') North Pacific Intermediate 300-1,500 10 34.2-34.5 1 Pacific Deep Water 1,500-bottom 1-2.2 34.6-34.7 @Source: U.S. Environmental Protection Agency (EPA), 1980. According to Patz ert (1970), the vertical distribution of salinity between the ocean's surface and 150 m depth, increases slightly to 35.1 percent. The depth of this maximum can vary depending on the presence of a cyclonic eddy when the salinity maximum has been recorded at the surface.. This indicates an up-we'lling of 150 m, completely removing the water of lower salinity at the sea surface. Variations in Hawaiian surface water temperatures range from a mean minimum of about 21 *C (70'F) from January to February to a mean maximum of about 27'C to 28'C (8 IT to 82'F) from June to October. Mean monthly maximum and minimum temperatures recorded at Kaneohe, Oahu are illustrated in Table H-2 (Haraguchi, in Hawaii DBEDT 1990). Although these temperatures are likely to differ somewhat from temperatures in the designated Sanctuary, the general monthly trends can be expected to be similar. TABLE 11-2: Hawaiian Water Temperatures by Month Month Tem -perature 'F Temperature -F Mean maximum Mean minimum January 74.7 71.1 February 75.6 70.3 March 76.5 71.8 April 77.7 73.0 May 79.5 74.7 June U.1 77.7 July 81.1 78.3 August 81.9 79.2 September 81.9 78.4 October 81.1 77.2 November 79.3 74.5 December 75.9 71.4 Annual 78.6 74.8 Source: Hariguchi in: DBEDT, 1990. The depth of the mixed layer varies from 50 m to 140 m (Chave and Miller 1977; Wyrtki et al. 1967). The thermocline extends well beyond 200 rn (100 fathoms) and has been reported to extend to depths between 275 m to 365 rn. in the offshore region (EPA 1980). Stratification is weakest in the winter -months and strongest in the summer. Specific water chemistry data for the Sanctuary area, particularly the inner area between the islands of Lanai, Molokai, Maui, and Kahoolawe, have not been located. However-, based on studies conducted in comparable water depths and distances from shore, it is believed that the water chemistry of the outer edge of the Sanctuary is more oceanic than coastal in character. The persistent trade winds, tides, and exceptionally strong currents between and adjacent to the islands encourages maximum mixing and dispersion of nearshore waters. Major inputs from the local land masses are likely to be episodic and may be negligible along the borders of the Sanctuary. General Final Environmental Impact Statement Page 33 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary approximations of the water chemistry based on measurements taken at a nearshore site off Oahu (Chave and Miller 1977), suggest that dissolved oxygen is high, perhaps supersaturated in the surface waters, ranging from 5.4 ml/L at the surface to 5.7 MI/L at 100 m. At 300 m depth off Oahu, these values decreased to 5.0 ml/L. A similar distribution pattern for pH was noted off Oahu, in December, 1976, whe 're values in the surface waters averaged 8.1 and increased to 8.2 between 25 m and 50 m depths. A decrease of 7.9 was noted at 300 m. The pH values were markedly lower at the same site during April 1977. Values of pH averaged 7.6 at the surface, increasing to 7.7 between 100 m and 150 m depth, and then decreased to 7.6 at 400 m. In sea water, pH generally ranges from 7.5 to 8.4. B. BIOLOGICAL RESOURCES 1 . Humpback Whales The focus of the Hawaiian Islands Humpback Whale National Marine Sanctuary is, as the name suggests, the humpback whale (Megaptera novaeangliae), an endangered marine mammal. Megaptera novaeangliae (or "long wings" of "New England") elicits a great deal of popular admiration because of its size and long pectoral fins; the fact that it can often be observed from shore or in nearshore areas; its often spectacular aerial displays; and its long, mystical vocalizations that can be heard by divers or acoustical instruments in the water. This section summarizes information about the humpback whale to inform the reader of its characteristics, status and distribution, habitat use, activities which can affect or adversely impact the whale, and management considerations. (A more comprehensive description can be found in Appendix G). a. Natural History i. Species description and taxonomy Humpback. whales occur throughout the world in both coastal and open ocean areas. They typically migrate between tropical and sub-tropical latitudes and temperate to polar latitudes. The former areas are occupied during winter months when the whales engage in mating and the females bear their young. Humpback whales are not known to extensively feed in the wintering grounds, although opportunistic feeding has been observed. Polar areas are occupied in the spring, summer, and fall months when feeding occurs. Prior to commercial whaling, the worldwide population of humpback whales is thought to have been in excess of 125,000. Between 1905 and 1960, intense commercial whaling operations targeted the humpback whale worldwide. In 1966, treaties under the International Whaling Commission (IWC) protected humpback whales from further harvesting by whaling operations. While the exact population numbers on humpback whale abundance and distribution are unknown, humpbacks are probably the fourth most numerically depleted species of the large whale family (following the northern right whale, blue whale, and bowhead whale) [National Marine Fisheries Service (NMFS) 199 1 ]. In 1984, it was estimated that perhaps no more than 10,000 to 12,000, or about 10 percent of the estimated initial worldwide population, existed (Braham. 1984). Recent revelations from the Russian President for Ecology and Health, confumiing that the Soviet Union was illegally killing thousands of endangered humpbacks and other great whales in the southern Hemisphere and perhaps the North Pacific and North Atlantic during the 1960's after the ban had been in effect, bring further doubt about the world population (Yablokov 1994). The humpback whale is one of six species listed in the Family of whales known as Balaenopteridae. This family is divided into two genera, Balaenoptera and Megaptera. The genus Megq@tera includes a single living species, Megaptera novaeanglide or Humpback Whale. The distinguishing features which separates this genus from other whales in this family is the presence of unusually long flippers (about 1/3 total body length), a more robust body, fewer throat groves 'Page 34 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary 1 (14-35), more variable dorsal fin, and utilization of very long (up to 30 minutes), complex, repetitive vocalizations (Payne and McVay 1971) during courtship (NMFS 1991). The name Megaptera means "great wing" and refers to the very large flippers of humpback whales. All six species within this family have but four fingers within their flippers; the middle or third finger is missing (Tinker 1988). The body length of humpback whales may vary somewhat in different geographical areas. The maximum recorded length of a humpback whale was measured at 18 in by Winn and Reichley (1985). The National Marine Mammal Laboratory recorded a mean length for physically mature humpback whales killed off California at 14.5 in or approximately 47.5 ft. (females) and 13.5 ni or approximately 44 feet (males) (NMFS 1991). The heaviest humpback whale measured was a 14 in female at 43.9 metric tons (Nishiwaki 1959). The body color of these whales is generally dark above and is characterized by white pigmentation on the flippers, flukes, sides, and ventral surface. Researchers identify individual humpbacks by photographs of the black and white pigment patterns on the underside of the flukes and by individually variable features (NMFS 1991). ii. Distribution and Zoogeography Distribution of humpback whales is global, though it is less common in Arctic waters. Seasonal migrations of humpback whales occur between low latitude wintering areas used for mating and calving, and high latitude summer feeding areas (Calambokidis et.al. 1996). There is little evidence that northern and southern hemisphere populations significantly mingle. The populations of the two hemispheres are effectively isolated by patterns of latitudinal seasonal migration associated with feeding (in polar waters) and breeding (in warm low latitudes), which are out of phase by 6 months. However, there is suggestive evidence based on results of biopsy studies which indicate that transoceanic genetic exchange has occurred among North Pacific and Southern Ocean populations of humpback whales based on -similarities in mitochondrial DNA sequence (Baker et al. 1993, 1994). In addition, direct observational evidence suggests a possible geographical overlap of southern and northern hemisphere whales in Costa Rican waters (Acevedo and Smultea 1995). Humpback whales are generally considered to inhabit waters over continental shelves, along the edges of continental shelves, -and around some ocean islands and atolls (NMFS 1.99 1). Concentrations of animals occur repeatedly in some areas. In the North Pacific, summer feeding areas include: the Alexander Archipelago, southeast Alaska; Prince William Sound, Alaska; and in the eastern Aleutian Islands and portions of the Bering Sea (Darling and McSweeney 1984). Dohl (1982) reported several hundred animals feeding off central California. Winter areas in the North Pacific include the Bonin, Ryukyu, and Mariana Islands, the main Hawaiian Islands, and along the west coast of Baja California and mainland Mexico, near the offshore area of the Revillagigedo Islands (Rice 1978). In the western North Atlantic humpbacks feed over the continental shelf and along the coast of Iceland, southwestern Greenland; the Newfoundland and Labrador coasts, the Gulf of St. Lawrence and the Gulf "of Maine. Feeding areas in the eastern North Atlantic include the British Islands north as far as Bear and Spitsbergen islands and as far east as Novaya Zemlya. The Lesser Antifles, Virgin Islands, Puerto Rico, and the Dominican Republic 'are wintering areas for the western North Atlantic population. The eastern North Atlantic population winter in areas around the Cape Verde Islands, west Africa to southern Morocco (NMFS 199 1). Southern Pacific populations of humpbacks interchange between Antarctic feeding grounds and breeding areas along the coast of western Australia, Queensland, New Caldonia --'Loyalty Islands -- New Hebrides, Fiji and Lau Islands, Tonga, Niue, and the Cook Islands (Winn and Reichlely 1985). Populations of southern Atlantic humpbacks winter in coastal areas of Argentina and Brazil, Angola, Gabon, Sao Tome and Principe (NMFS 1991). Final Environmental Impact Statement Page 35 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary iii. Populations and Subunits Observations of marked individuals suggest that major oceanic populations of humpbacks are divided into a number of distinct subpopulations which are not separated by obvious geographical barriers (Katona and Beard 1990, Baker et. al 1986 and 1990). At present there is no way to determine how unique and isolated a population must be before it is considered a "stock." Differences in the timing of breeding provide a particularly important criterion for distinguishing between populations of humpbacks in the northern and southern hemispheres because they imply that a barrier exists to gene flow between these two populations (Dizon et al. 1992). Stocks of whales have been defined by morphological differences of various types: color patterns, body size, shape, and skeletal characteristics. Variation in the coloration of humpback whales has been used to characterize different stocks in the southern hemisphere (Winn and Reichlely 1985)., Researchers have reported that some southern hemisphere humpback whales have extensive white lateral coloration. Such extensive white lateral coloration has not been reported for northern hemisphere whales (Nishiwaki 1959, Glockner and Venus 1983). Morphological differences between two or more'populations probably representunderlying genetic differences, and analyses of DNA and morphology should provide similar evidence (Dizon 1990). Observations of continued seasonal return of individual whales identified during their first year of life suggests that fidelity to a specific feeding ground is the result of the calf s early migratory experience (Baker et al. 1987 and 1993, Clapham and Mayo 1987). Matrilineal fidelity within feeding groups may enhance cooperative feeding systems. For humpback whales, cooperation -during feeding could be optimized by forming a structured stock in which individuals feed among closely related individuals but breed among distantly related or unrelated individuals (Baker et al. 1986). Patterns of mtDNA and nuclear DNA in North Pacific humpback whales have revealed significant differences, particularly among feeding areas (Calainbokidis et al. in press). Significant differences were found in rntDNA halotypes between 39 biopsied whales in southeastern Alaska and 20 from central California, suggesting the genetic exchange rate between California and Alaska to be less than I female per generation (Baker et al. 1990 and 1994, Calambokidis et al. in'press, Small and Demaster 1995). These results further suggest that population structures among humpback whales appear to be based on matrilinear fidelity to feeding areas. 46 To facilitate management of humpback whale population units, NMFS (199 1) uses the term stocks" to refer to groups of whales using geographically distinct winter ranges for reproduction; and the term "feeding aggregations" for groups using geographically distinct summer ranges for feeding. Some reproductive stocks appear to be comprised of whales from several feeding aggregations (Baker et. al 1987, Clapharn and Mayo 1987, NUTS 1991). Thirteen humpback whale stocks have been identified worldwide (NMFS 1991, Marine Mammal Commission 1995). Four stocks of humpback whales are found seasonally in U.S. waters. These are the western, central, and eastern North Pacific stocks and western North Atlantic stock (Marine Mammal Commission 1995). Figure H-7 (NUTS, 1991) illustrates the different stocks, their preferred summer, wintering, or year around habitats, and general migrations routes.' iv. Habitat Use and Behavior 1) Summering areas -- Feeding Humpback whales feed while on the summer range, which is usually located over a continental shelf at latitudes between approximately 40* to 75'. Sea surface temperatures may vary between very low temperate conditions 2*C near the edge of pack ice in western Greenland at 64N to higher temperatures at 2 1 OC about 42*N in Massachusetts Bay (NMFS 199 1). Page 36 Final Environmental Impact Statement and Management Plan Oil rIl Suwwmr distribution wintor distribution ves"ound ,a GREENLAND Nwh ALASKA sea ofollhalsk a sr. -600 um CANADA of Ca SOVIET UNION EUROPE 46 USA Cr JAPAN mmh 400 0 Fill A Moth 0 Lesser piclic 0 .20, Hawall AFRICA Mariana ft. ? SOUTH 00 AMERICA Cr IN -200 m AUSTRALIA pr SOWA Peak South Atlantic Madagascar Tosimfga NEW .400 ZEALAND 609 ANTARCTIC ANTARCTIC ANTARCTIC - ---------- 1200W 160* lfio* 1201- so* 400 00 40* E OF W@@7 @ARCM ANT V - ='@@A"TARCTIC Uj Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Humpback whales, engage in a wide variety of feeding behaviors. Observations of feeding behavior reported include: bubblenetting (Jurasz and Jurasz 1979, D'vincent et al. 1985, Hain et al. 1995), surface rushes and lunge feeding by humpbacks, in the western North Atlantic (Watkins and, Schevill 1979), lobtail feeding, and using the water surface as a barrier to prevent the escape of prey (Weinrich et al. 1992). Descriptions of feeding behaviors are usually limited to what can be observed at or near the surface. Hain et al. (1995) described an, additional behavior of humpback whales apparently bottom feeding and prey flushing on burrowed northern sand'lance in Stellwagen Bank off Massachusetts. It has been suggested (Jurasz and Jurasz 1979, Watkins and Schevill 1979, and Hain et al. 1995) that various prey species or densities elicit different feeding strategies and behaviors. For more mobile and evasive species, or for more efficient feeding in lower densities, more sophisticated methods may be advantageous. Observations of feeding in wintering areas suggest that feeding may not be entirely confined to so-called feeding grounds. In the northern hemisphere, occasional feeding of humpback whales on known breeding grounds has been reported. In the North Atlantic, in Smana Bay (Dominican Republic), Baraff et al. (1991) reported feeding behavior by a single animal which repeatedly formed bubble clouds and exhibited surface lunges (Gendron and Urban 1993). In the North Pacific, one vertical lunge by a subadult humpback whale was observed off Maui, Hawaii (Salden 1989). A single humpback whale was also observed bubble-net feeding near the surface in the southern portion of the Gulf of California in March 1989 (Gendron and Urban 1993). Observations of juvenile humpback whales* feeding near the mouth of Chesapeake Bay was reported during the months of January through March 1991 and 1992 (Swingle et al. 1993). These observations indicate that humpback whales occasionally feed while on their breeding grounds and this opportunistic activity may vary according to locality and food availability. 2), Migrations Long distance migrations of humpback whales occur seasonally between low latitu 'de wintering areas used for mating and calving and high-latitude feeding areas. Discovery tags used by commercial whalers to mark individual whales provided the first direct evidence of connections between summer and winter assemblages. However, information obtained from the tags were limited and the tags had a tendency to injure or kill the animal (Winn and Reichley 1985). In the western North Atlantic and the central and eastern North Pacific it was noted that individual whales consistently migrate to one of several discrete coastal regions where they feed during the summer and fall. These repeated sightings of photographically identified individuals provided further evidence about the beginning and end points of the rrugratory destinations of humpback whales (Darling and McSweeney 1984, Baker et. al, 1986, Katona and Beard 1990, and NMFS 199 1). Using observations of peak concentrations of whales along the migratory route, Dawbin (1966), estimated that humpback whales migrate at a rate of 15' latitude (900 nautical miles) per month. Clapham and Matilla (1990) reported migration speeds for two individuals migrating between the Greater Antilles and Massachusetts Bay at a rate of 14.8" and 21' latitude per month. 3) Wintering Areas -- Reproduction During the winter months humpback whales congregate to give birth and presumably mate in shallow waters near islands and continental coastlines in lower latitudes (usually between about Xr and 35* latitude). Sea surface temperatures in these areas vary from 25*C in waters around Hawaii (Herman 1979, NMFS 199 1) to 28' C in the West Indies (NMFS 199 1). Female humpbacks produce one calf on average every 2.4 to 2.8 years (Chittleborough 1965, Baker et. al 1987, Clapham and Mayo 1987). Therefore reproductively active females constitute a limiting resource. Males appear to compete for reproductive access to females in surface active pods. Competition between males appears to escalate from low-level agonistic Page 38 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary threats and displays to high-level agonism involving physical combat (Tyack and Whitehead 1983, Baker and Herman 1984). Social sounds produced during these agonistic pods may function as acoustic threats between males (Tyack 1983, Silber 1986). Juveniles presumably do not participate in reproductive activities until they reach sexual maturity, usually at age 4 to 6 years. Known juveniles have been reported on the outskirts of primarily adult "surface active groups" in breeding areas (Matilla et al. 1989, Swingle et al. 1993). Little information though, exists on the activities of juveniles during this time. Long complex songs produced primarily by lone, relatively stationary males is a common occurrence on the breeding grounds and is presumed to be a component of the humpback mating system (NMFS 1991, Frankel et al. 1995). The exact function of songs produced by males on the wintering ground is not known. v. Natural Mortality A review of lite rature for the humpback whale recovery plan (NMFS 1991) revealed how little is known about the natural mortality in humpback whale populations. Factors which may contribute to natural mortality include parasites, predation, red tide toxins, and ice entrapment (NMFS 1991). Claphani and Mayo (1987) suggest it is possible that mortality in humpback populations is highest during the time between birth and arrival in high latitudes, and that a calf surviving its first few weeks of life has a relatively good chance of reaching sexual maturity. b. North Pacific Population of Humpback Whales i. Use of Feeding and Wintering Areas In the North Pacific humpback whales feed over the continental shelf and in numerous deep water sounds and channels from California along the Pacific rim to Japan (Jurasz and Jurasz 1979, Darling and McSweeney 1984). The historic summering range of humpback whales in the North Pacific encompasses coastal and inland waters around the Pacific rim from Point Conception, California, north to the Gulf of Alaska and the Bering Sea, and west along the Aleutian Islands to the Kamchatka Peninsula and into the Sea of Okhotsk (Small and Demaster 1995). Humpback whales in'the North Pacific use three primary wintering areas (Rice 1974, Johnson and Wolman 1984). These consist of the waters near Mexico, Hawaii, and Japan. In Mexico, humpback whales winter off the southern tip of Baja, around the Revillagigedo Archipelago, and in coastal areas off mainland Mexico. In Hawaii, humpback whales primarily winter in waters less than 100 fathoms deep around the main Hawaiian Islands (Herman and Antinoja 1977, Rice and Wolman 1978). In Japan, humpback whales utilize areas near the Bonin and Ryukyu Islands (Rice 1978). In addition, Stieger et al. (1991) reported observations of humpback whales wintering off the coast of Costa Rica. ii. Abundance and Trends The size of the north Pacific humpback whale population was estimated earlier to be approximately 10 percent of the species' pre-whaling abundance (Rice 1978, Wolman 1978). Prior to the 1970s, most of the information concerning the natural history of humpback whales came from harvested specimens primarily in the southern oceans (e.g., Chittleborough 1954, 1955; Dawbin 1966). During the past two decades the focus of research has shifted to field studies of free-ranging specimens aided by the use of natural markings on the flukes to identify individuals. Analysis of photographs of these natural markings (primarily variations of black and white pigment found on the ventral surface of the flukes) have contributed substantially to the understanding of the population structure, social ecology, and reproductive patterns of this species. Final Environmental impact Statement Page 39 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Efforts to estimate the numbers of humpback whales in regions throughout the North Pacific Using capture-recapture statistics based on photoidentification is currently underway. However, the current abundance estimate is considered unknown because the stock has been increasing for the past twelve years (Small and Demaster 1995). iii. Stock Structure Kellogg (1929), using the observations of early whalers, suggested that humpback whales in the north Pacific were divided into an American and Asian stock. He proposed that the Asian stock wintered in tropical waters south of Japan and traveled north to feeding areas in the Sea of Okhotsk and along the Kamchatka Peninsula. The American stock was thought to breed in the waters off the west coast of Mexico and travel northward along the coast of North America to feeding grounds in the Gulf of Alaska, the Bering Sea, and near the Aleutian Islands. At that time, there was no evidence of exchange between the American and Asian stocks. Recently, however, Darling (199 1) reported a resight of a humpback whale seen in the waters surrounding Ogasawara, Japan, as well as the island of Kauai. Recent analyses of humpback whale songs recorded in the wintering grounds off Mexico, Hawaii, and Japan also support the possibility of cross-Pacific exchange (Helweg et al. 1993) since some "thirnes" (recurring features of song) were found common to all. three wintering, regions. The Hawaiian wintering grounds were apparently not known to Kellogg, nor to other authors discussing the north Pacific humpback whales (Nishiwaki 1966). More recent photographic identification data, focused primarily on the habitats in the central and eastern north Pacific, have revealed. patterns of exchange between southern wintering areas in Hawaii and Mexico, and northern feeding areas in the waters surrounding the Farallon Islands off the central California coast, southeastern Alaska, and western Gulf of Alaska (Perry et al. 1988). In contrast to migration from winter to sununer regions, cases of movement from one summer feeding area to. another are rare. Based on these patterns of movement, Baker and others (1986) proposed that humpback whale groups in the north Pacific arebest described as "structured stocks" that consist of several feeding herds which intermingle to breed on one or more wintering grounds. The relationship between and among the various stocks of humpback whales has been better elucidated by genetic research conducted over the past 10 years (Small and Demaster 1995; Baker et al., 1994;.Calombokidis et al., in press). Figure H-8 illustrates the different stocks, their' preferred summer, wintering, or year around habitats, and general migration routes in the North Pacific. Page 40 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary f Wr The migratory destinations and population structure of humpback whales in the North Pacific and western North Atlantic oceans, based on observations of marked individuals. Regions encircled by a solid line are defined by current observations of seasonal return by naturally marked individuals. Regions encircled by a broken line are defined by historical patterns of distribution during periods of commercial whaling. Arrows connect seasonal habitats visited by individually identified whales but do not necessarily indicate migratory routes. Thick arrows connect regions with known sirong migratory interchange and thin arrows connect regions with weak migratory interchange. The broken line connecting Hawaii and Mexico indicates the probable presence of an intervening seasonal migration to a feeding ground by individuals sighted on both wintergrounds in alternate years (from Baker et al. 1990 and 1993). Figure H-8 Humpback whale migration routes and population structure iv. Humpback Whales in Hawaiian Waters 1) Historical Presence Pacific whalers have sighted humpback whales in Hawaiian waters since the 1840's, but' there are no written records (from the Western world) of whales existing in Hawaii before this time. Herman (1979) suggests that humpback whales may have not "arrived" in Hawaiian waters until the mid- 1800's. The Native Hawaiian language does not specifically name humpback whales in chants or stories, however, they are known as kohold (Pukui and Elbert 1986). Unlike humpbacks, sperm whales (Physter macrocephalus), have long peen part of Native Hawaiian lore and are called paldoa. Only the ald (kings) could approach sperm whale carcasses, and the bones were used only by the highest chiefs. Spenn whales never became part of the everyday family gods (aumakua), possibly because the whales were too large, and 'most family gods were relatively the same size as humans. Moreover, whales were never hunted by Native Hawaiians as a major source of food, so their importance in sustaining the culture was less than other species which were utilized. There is a Native Hawaiian chant of creation called the Kumilipol which mentions the kohold as one of the creatures that was created. Over the last 25 years, researchers have noted the tendency for humpback whales to congregate in shallow-water banks and island areas during the winter breeding season (Chittleborough 1965, Herman and Antinoja 1977) with peak abundance occurring approximately between mid-February and mid-March (Baker and Herman 198 1, Herman et al. 1980, Forestell and Mobley 199 1). Because humpback whales are not known to extensively feed during the winter breeding season (Dawbin 1966, Tomilin 1967), this shallow-water preference is'not likely based on prey availability. Other authors have conjectured that: (1) shallow, inshore waters offer greater protection from predators such as sharks, which is of particular concern for calves (Baker 1985); or (2) warmer waters require less of an expenditure of metabolic energy, which is Final Environmental impact Statement Page 41 and Management Plan Part 11: - Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary particularly important during a period of fasting (Brodie 1975). There are relatively large expanses of shallow water (less than 100 fathoms or 600 feet deep) surrounding the main Hawaiian Islands. 2) Reproduction The social behavior of the whales while in the wintering waters is presumably related to reproduction, since calves are born during the winter season and gonadal activity in both males and females increases in the winter months (Chittleborough 1954, 1955, Nishiwaki 1959). It appears that the mating system is polygynous, or promiscuous (Mobley and Herman 1985), characterized by complex acoustic displays (i.e., 'songs'), and vigorous physical competition among males. Female humpbacks generally give birth to a single calf at two- to four-year intervals (Baker et. al 1987, Glockner-Ferrari and Ferrari 1984, Clapham and Mayo 1987), although some females may give birth two years in a row. The calf remains with its mother for approximately one year (Chittleborough 1954). Current rates, of neonatal mortality are unknown, but of great importance to assessments of the rate of rec:'overy of the species (Perry et al. 1990). Mother-calf pairs are frequently accompanied by a third whale, an "escort" (Herman and Antinoja 1977). The escorts appear to be consorting with the mother in order to mate with her, and intense aggression' among escorts and "intruding" whales has been observed (Tyack and Whitehead 1983, Baker and Herman 1984, Mobley and Herman 1985). Although not all females ovulate post-partum, enough may do so to warrant the attention of males (Herman and Tavolga. 1980, Tyack 1983). It is generally difficult to determine the gender of humpback whales in the field, however, in those cases where discninnination has been possible, singers and escorts have proven to be males (Glockner-Ferrari and Ferrari 1984, Baker and Herman 1984). 3) Singing Long, complex "songs," first identified by Payne and McVay (1971) and by Winn and Winn (1978) are heard throughout the humpback's winter grounds. Singing peaks during the winter months (Helwig 1993). ' Occasionally, songs are heard -in the late fall in high latitudes or along the migratory route (Frankel et al. 1995). Songs.consist of a set of themes produced in a consistent sequence (Payne and McVay 197 1, Frankel et al. 1995). Within a season, the songs of all singers typically have the same sequence of themes. During the season, the song continuously evolves as new changes are introduced (Payne and Payne 1985). The exact function of songs produced by males on the wintering ground is not known. The singer is normally a lone whale, however some whales sing while in groups (Baker and Herman 1984) and some sing while swimming (Frankel et al. 1989). Singers have also been observed to stop singing and join with cow-calf pairs, and sing while escorting (Tyack 1981, Darling et. al. 1983, Frankel et al. 1989, Helweg et al. 1993). Concurrent singing by many whales may be a form of communai'display by males (Herman and Tavolga 1980) which, in addition to other functions, may help to synchronize ovulation in females with the presence of mature males (Baker and Herman 1984). Sound- playback experiments have indicated that songs probably function as an advertisement rather than an attractant because playbacks of song rarely produced approach by whales. Other sounds that may indicate the presence of a female (Alaskan feeding call and Hawaiian social sounds) were more likely to cause whales to approach the playback source (Tyack 1983, Mobley et al. 1988). Current studies of humpback song by Frankel and others (1989) modeled on the procedures developed by Clark, Ellison, and Beeman (1986), utilize a linear array of hydrophones to track vocalizing whales (singers) by their sounds (Frankel et al. 1989). Recent findings from acoustic-array work suggest that the initial distance between singers is one determinant of whether other singers will increase, decrease, or maintain their separation distance (Helweg et al. 1993). These results indicate that maintaining spacing among males is one function of song, as first suggested by Winn and Winn (1978), and that the biologically effective distance of song -is approximately 6 km (Frankel et al. 1991). Based on a review of accumulated evidence it has been proposed that a dual function of song is that it serves to establish spacing among individual singers Page 42 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback.Whale Part 11: Description of the Affected Environment National Marine Sanctuary approxima tely 6 km (Frankel et. al., 199 1). Based on a review of accumulated evidence it has been proposed that a dual function of song is that it serves to establish spacing among individual singers and as a means of advertisement to females (Helweg et. al. 1993). Data collected by Frankel et. al. (1995) using passive acoustic location techniques in combination with more traditional visual techniques to study humpback whale behavior on the wintering grounds of Hawaii, appears to support this hypothesis. The separation distance between singers (mean 5.1 km) was found to be significantly -greater than that between nonsinging singletons (mean 2. 1 km), supporting the hypothesis that- song functions to maintain spacing between singers (Frankel et. al. 1995). 4) Humpback Whale Distribution Earlier aerial surveys (Herman et. al. 1980, Baker and Herman 1981, Forestell 1989, Mobley and Bauer 1991, Forestell and Mobley 1991) suggested that the majority of humpback whales were found in the shallow waters (<100 fathoms) of the main Hawaiian Islands, though extensive surveys in deeper waters were not conducted. Analyses of pod locations in thefour- islands and Penguin Bank regions revealed that whales were not distributed homogeneously throughout the 100-fathom isobath but were generally found in more shallow water (modal depth=27 fathoms) (Forsyth et. al. 1991). More recent surveys have concentrated in waters exceeding 100 fathoms and have found that approximately 74 percent of all humpback whales are found within the 100-fathorn isobath (Mobley et. al. 1993) (Figure 11-9). The fact that 26 percent of all sightings were in deep waters suggests that past surveys, with efforts concentrated in waters less than 100 fathoms, may have underestimated the number of whales present. 1903 AerW Survey Locations of all humpbadc whale pods sighted 2r - 210- 20@ - 161*W 1600 1590 1586 Isr Ise* 155* IFigure U-9 Results of statewide 1993 humpback whale survey (Mobley et al. 1993) Final Environmental Impact Statement Page 43 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary The earlier surveys (1977-80) showed wintering humpbacks to be concentrated in the waters of the four-islands and*Penguin Bank regions (Herman and Antinoja 1977, Herman et al. 1980, Baker and Herman 1981). The majority of pods containing calves were also found in these areas (Figure II-10). Replication of this earlier effort during the 1990 season (Mobley and Bauer 1991) showed that these regions were still preferred by adults and calves, but revealed substantially increased sighting rates around the islands of Niihau and Kauai (Figure II-11). Densities of calf pods around the Kauai/Niihau region remained low, however, with only the Oahu island region lower among the total of five regions. Arranged in order of decreasing sighting rates those islands as follows: Penguin Bank, four-islands region, Kauai/Niihau, Hawaii, and Oahu. 1990 SURVEY RESULTS (Cad Pods Only) CHANGE IN WHALE DENSITY (1990 Rats - 19"-80 Rob) VASd adw 1AW MwA "aid CHANNIN CMPDVUM WALE as - 1.0 1.1 40 1.1 zo 30-1 Figure II-10 (Mobley & Bauer' 1991) Figure II-11 (Mobley & Bauer 1991) The 1993 aerial survey results support the findings of earlier surveys with -regard to the descriptions of inshore waters as preferred habitat for humpback whales (Herman and Antinoja, 1977, Herman et al. 1980). Figures H- 12 through 11- 15 show all 1993 and 1995 humpback whale sightings by region and by year (Mobley et al. 1996). The number of humpback whale sitings doubled from 1993 to 1995. This difference is more than expected based on the 39% increase in effort during 1995 (primarily in the vicinity around Kahoolawe), and also may be due, in part, to better seastate conditions during the 1995 survey (Mobley pers. comm.). As shown, there is a clear preference for inshore waters less than 100 fathoms in depth, despite more recent efforts to locate whales in deeper waters (Mobley et al., in press). Dunng the 1993 aerial survey, 74 percent of all humpback whale sightings occurred in waters less than 100 fathoms, with only 20 percent of effort within this depth stratum -(Mobley et al. 1994). The fact that the remaining 26 percent of humpback whales were found in deeper water suggest that earlier surveys which primarily surveyed waters less than 100 fathoms likely undercounted the wintering population (Mobley et al. 1994). Information on the use of habitat areas within the @_Iawaiian Islands by humpback whales is described below. Page 44 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary 16030 16015 16000 15945 15930 15915 1590 .0 2230 2230 1993 2215 2215 2200 2200 2145 2145 2130 21 30 16030 16015 16000 15945 15930 15915 15900 16030 16015 16000 15945 15930 15915 15900 2230 - 2230 1996 7 2215 2215 7 2200 2200 2145 2145 2130 2130 16030 16015 16000 15945 15930 15915 15900 Figure 1. Humpback whale sightings (asterisks) and aerial survey effort (dots) for 1993 and 1995, Kauai area. Figure 11-12 Humpback whale sightings for 1993 and 1995 (Mobley et al. 1996) Final Environmental Impact Statement Page 45 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary R1 :7 ............... .. ............ ... .. . . . . . . . .. ...... ........ �R IV CM 06 C2 C4 tL, v6 U. c14 Figure 11-13 Humpback whale sightings for 1993 and 1995 (Mobley et al. 1996),, Page 46 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part IL Description of the Affected Environment National Marine Sanctuary 15715 15700 15645 15630 15615 15600, 15545 2130 1993 21JO 2115 2115 2100 2100 2045 2045 MEW 2030 2030 2015 2015 15715 15700 15645 15630 15615 15600 15545 15715 15700 15645 15630 15615 15600 15545 1996 2130 .......... 2130 2115 2115 2100 - 2100 2045 2045 -91A A' I 2030 2030 4. 2015 2015 15715 15700 15645 15630 15615 15600 15545. Figure 3. Humpbackwhale sightings (asterisks) and 'aerial survey effort (dots) for 1993 and 1995, Four Island area. , Figure 11-14 Humpback whale sightings for 1993 and 1995 (Mobley et al. 1996) Final Environmental Impact Statement Page 147 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary 15630 15600 15530 15500 ............ ....... ------ 3 @-4m@ I% 2030 1993 2030 ff -t 2000 2000 ........... 1930 1930 1900 1900 15630 15600 15530 15500 15630 15600 15530 15500 2030 V 1995 2030 -A 2000 2000 -R, 1930 1930 -?XR- 9mv 1900 1900 15630 15600 15530 15500 Figure 4. Humpback whale sightings (asterisks) and aerial survey effort (dots) for 1993 and 1995, Big Island area. [Figure 11-15 Humpback whale sightings for 1993 and 1995 (Mobley et al. 1996) Page 48 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary 5) Humpback Whale Cow-Calf Distribution Mobley et al. (in press) reports that calves comprised only 5.2 percent of all whales seen i n 1993 and 4.5 percent of all whale's seen in 1995. This is lower than the typical 7-8 percent reported in previous surveys (Herman and Antinqja 1977, Herman et al. 1980, Mobley and Bauer 1991). During the 1990 aerial surveys, all pods sighted were orbited to determine pod composition. For this reason, the 1990 results provide a more reliable indication of the number of calves present in recent years, as well as the regions preferred by pods with calves (Figure 11- 10). Of the 361 whale pods observed (where pod composition could be confirmed), 79 (22 percent) contained calves. Sixty-eight percent of all calf pods observed were seen in the four-islands and Penguin Bank regions. Based on these data, Mobley and Bauer (1991) described these regions as preferred calving grounds, probably because of the greater expanses of available shallow water (less than 100-fathoms). During 1993 and 1995 few pods were orbited to confirm pod composition and it is likely that calf pods may have been undercounted during these surveys (Mobley et al. in press) (Tables 11-3 and 114). Table 11-3: Calf od Sightings by Su7vey and egion --- All Sightings T1993) Region Survey Kauai/ Oahu Penguin Four Big Total Niihau Bank Island Island. 1 3 0 0 4 3 10 2 0 0 3 5 0 8 3 1 0 __0 3 1 5 4 1 1 6 5 0 13 Totals 5 1 9 17 4 36 Source: 1993 AT07Report, Page 15. Table 11-4: Calf Pod Sightings by Survey and Region '-- All SightinFs" (1995) Region Survey Kauai/ Oahu Plenguin Four Big Total Niihau Bank Island Island 1 0 2 6 2 11 2 3 0 2 16 1 22 3 3 2 1 4 1 8 1 1 18 4 1 5, 1 2 Totals 8 7 1 8 35 1 5 63 Source: Mobley, pers. comm. Note: When density of calf pod sighting is used (whales/nautical mile surveyed) then both Penguin Bank and the Four Island region show the highest density of calf pods (Mobley, pers. comm.). 6) Habitat Use Humpback whales are coastal species while on their wintering grounds (Herman and Antinoja 1977). Highest densities of whales and calves are typically reported in the four island area (Maui, Molokai, Kahoolawe, and Lanai) and Penguin Bank (Herman and Antinoja 1977, Herman et al. 1980, Baker and Herman 1981). Forsyth et al. (1991) found that .whales in the Penguin Bank and Maui regions were located at a mean depth of 51.4 fathoms. Recent aerial survey data showed that 74 percent of all pods were seen in waters less than 100 fathoms deep (Mobley et al. 1993). Final Environmental Impact Statement Page 49 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Previous studies also suggest humpback cows with a calf appear to predominate in shallow, generally sheltered or coastal water, while adults occur mostly in deeper, more exposed water (Herman et al. 1980, )Whitehead and Moore 1982, Matilla and Clapham 1989). Data collected near the Big Island during 1988 and 1989 suggest that temporal and spatial distributions of whales differed with group size and composition (Smultea 1994). During afternoon hours and throughout the day late in the- breeding season, groups containing a calf occurred in significantly 'Shallower water and nearer to shore than did groups without a calf. Between-group distances were also found to be significantly greater for groups with a calf than distances between all other groups. These temporal and spatial differences may suggest that adults without a calf may use deep water to facilitate breeding behavior while maternal females may use shallower water to avoid harassment and injury to calves from sexually active males, turbulent offshore or deep sea conditions, or predators (Smultea 1994). Adults may prefer deep water to facilitate surface-active breeding behavior and propagation of song. Frankel et al. (1995) found that 50 percent of singers were located in water deeper than 100 fathoms suggesting that the proportion of singers found in deep water is higher than for other classes of whales. Claoham et al. (1992) reported that mature females, probably estrous, or pre-estrous, can be reliably found in large surface active or combative pods farther offshore than mothers and calves. Therefore, Frankel et al. (1995) suggests that the region frequented by mature females without calves contains the prime singing areas. Movement of humpback whales among different sub-areas within a wintering ground appears extensive, although the pattern and extent of this movement is unknown for whales wintering off the Hawaiian Islands. Earlier reports from aerial surveys over the islands of Hawaii, Maui, Molokai, Oahu, and Kauai (Baker and Herman 1981) found peak abundance off each island was staggered temporally through the season from Hawaii to Oahu. These studies 'concluded that whales moved through the islands in a general northwesterly direction starting from the island of Hawaii. However, timing of peak abundance off Kauai was anomalous from the overall trend and appeared to be independent from the other islands. Baker and Herman (1981) suggested that Kauai might therefore represent a semi-isolated sub-population,* with the deep 125 mile-wide Kauai Channel acting as a partial barrier between Kauai and the other islands (Cerchio in press). Six individual whales moved from Hawaii to the Maui region and one from Maui to Oahu, supporting. a general northwest. movement trend (Baker and Herman 1981). Darling and Morowitz (1986) reported five cases of whales moving from Maui to Hawaii, refuting a northwest trend, and presented evidence suggesting that the majority of the population was present off Maui through the peak season. More recent studies of movements of whales between Hawaii and Kauai between 1989 and 1991 photographically identified 1,702 individuals, with 40 individuals being captured off both islands including 15 cases of within-year recaptures (Cerchio et al. 1991, Cerchio in press). Of the 15 documented transits between islands, nine whales traveled northwest from Hawaii to Kauai and six whales traveled southeast, originating off Kauai suggesting a similar degree of movement in both directions (Cerchio in press). More scientific research is needed to determine the extent of inter-island movement in Hawaii. 7) Abundance Estimates Of the known wintering and summering areas of humpback whales in the north Pacific, the Hawaiian Islands are considered to contain the largest seasonally-resident population. Earlier shipboard surveys of the coastal waters of the Hawaiian Islands by NMFS during the winter seasons of 1976-79 (Rice 1978; Wolman 1978) produced estimates of between 550-790 whales (mean estimate 650). More recently, mark and recapture techniques have been applied to analyses of fluke identification photographs that estimated 1,407 whales (95 percent confidence limits 1, 113 and 1,701) as having visited the Hawaiian Islands during a four-year period, from 1980 to 1983 (Baker and Herman 1987; NMFS 199 1). Because these estimates were produced using different abundance estimation techniques, they are not directly comparable and, therefore, cannot be relied on to suggest population increase. @age 50 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary Mobley. and Bauer (1991), comparing sighting rates of pods seen in the winter seasons of 1977-80 with those seen in 1990 using identical methods, found significant increases across the 10 to 13-year period. The authors concluded that either there had been an increase in the size of the north Pacific population, or that a greater proportion of the north Pacific population is wintering in. Hawaiian waters. Aerial surveys performed during the 1991 season by Forestell. and Mobley (1991) using m odified line transect methods, estimated that 1,584 whales were present in coastal Hawaiian waters on the peak date for that season (Feb. 22, 199 1). This survey series, however, was limited primarily to waters within the 100-fathorn isobath. The results of the 1993 survey series yielded an abundance estimate of 669 whales, with a confidence interval of 536-835 (Mobley et al. 1993). This estimate refers to the number of animals that were likely to be at the surface at the time of survey, but does not reflect the number of whales below the surface. Shore station results taken from a sample of over 600 surfacings from the north shore of Kauai (1993 Acoustic Thermomeiry of Ocean Climate (ATOC) Marine Mammal Research Project, unpublished data] show whales to be at the surface 19 percent of the time. The study estimates the population as roughly 3,000 whales, although this estimate- may vary pending more reliable estimates of whale surface time. c. Known and Potential Impact& to Central North Pacific Stock Human activities and projects can directly affect humpback whale behavior through physical disturbance, and indirectly through habitat modification by, e.g., reducing the water quality. Scientists generally agree that human activities, in water depths of 60 m to 100 m, can be disruptive to whale behavior (Tinney 1988). The extent of the disturbance depends on the location, type, and frequency of the activity. The scientific community is not in full agreement on the extent of these impacts because there is limited empirical data. The Humpback Whale Final Recovery Plan (NMFS 199 1) notes that the known and potential impacts of human activities on whales in the Pacific include subsistence hunting, incidental entrapment or entanglement in fi&hing gear, collision with ships, and disturbance or displacement caused by noise and other factors associated with shipping, recreational boating, high-speed thrill craft, whale watching, air traffic, or nearshore or in-shore construction. The report also states that "introduction and/or persistence of pollutants and pathogens from waste disposal; disturbance and/or pollution from oil, gas or other mineral exploration and production; habitat degradation or loss assoc iiated with coastal development-, and competition with fisheries for prey species..." have negative impacts on whales as well (NMFS 1991). i. Entrapment and Entanglement in Fishing Gear or Mooring Lines Impacts of fishing, in terms of competition for prey species, may only be a concern in areas where humpback whales feed, such as Alaska. Entanglement is a less likely conflict in areas where whales are not known to feed such as Hawaii. In Hawaiian waters deeper than 20 m, fishermen do not regularly use large nets. There is Ao trawling or drift gill netting allowed in Hawaiian waters. As a result, there have been few reported cases in Hawaii of humpback entanglement in fishing nets. Only a few reports of humpback whale entanglements in fishing gear are known (G. Nitta, 1994, pers. comm.). In one case a mother and calf were entangled in a shore-deployed float line. Both were released alive by the U.S. Coast Guard (USCG). Another humpback was recorded entangled in a long line gear north of the Hawaiian Archipelago. Humpback entanglement in mooring buoy lines has been observed in at least two instances. In one case, a humpback whale was found by PMRF staff off Kauai entangled in a mooring buoy, but was cut loose and released unharmed by the Navy. During the 1995 winter season, a juvenile Final Environmental Impact Statement Page 51 and Management Plan Part IL Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary humpback was cut loose from mooring lines off Kihei, Maui by the USCG. After release, the injured whale remained in the nearshore area and was subsequently attacked and killed by several tiger sharks (G. Nitta and A. Tom, pers.. comm.). In 1996, several reports of humpback whale entanglements occured during the whale watch season in the waters off Kauai and the Big Island (A. Tom, pers. Comm.). ii. Collisions with Ships As ships get larger and faster, and if the numbers of vessels increase, the incidence of encounters can be expected to increase (NMFS 1991). Glockner-Ferrari and Ferrari (1987) note that the number of physical injuries to calves, juveniles, and adult humpback whales as a result'of collisions with boats has increased in Hawaiian waters. It has also been noted that humpbacks seem less likely to react overtly to vessels when actively feeding than when resting or engaged in other activities (Krieger and Wing 1984, 1986). If such whales either accommodate to disturbance (Beach and Weinrich 1989) or pay less attention to ships when actively feeding they would have increased risk of collision. In the spring of 1996, a humpback whale calf was reportedly struck and killed by a unknown vessel off the west Oahu coast (G. Nitta pers. comm.). iii. Acoustic Disturbance Noise has also been identified as a potential disturbance to whales (Tinney 1988; Bauer and Herman 1986; Atkins and Swartz 1988). The impact of noise depends on three factors: loudness, frequency (tonal pitch), and continuity (noise changes in frequency or direction). Myberg (1990) stated that the responses of whales to noise in general varied a6cording to ambient noise, ongoing activity, and individual species. Studies in Alaska have shown that erratic noises are particularly ,disturbing to whales (Tinney 1988). 1) Disturbance and noise from ships, boats, and aircraft. Scientists have observed whales to avoid low-flying aircraft and surface vessels and areas near dense human habitation or disturbance (Herman et al. 1980; Tinney 1988). Tinney noted that commercial whale-watching, jet skiing, boating, aircraft operations, military activities, and scientific research can all elicit behavioral responses in whales. Responses to overflights by cetaceans may include visually tracking the aircraft and can result in premature diving, swimming away from the disturbance, and adults protecting the young by getting between the disturbance and the calf (Tinney 1988). The avoidance to aircraft and boats can be in response to the noise that boats or aiawaft produce or their physical pre *sence or motion. Studies have shown that whales phonate at ranges of 12 Hz to 30 kHz (Tmney 1988). Such a range overlaps with those sounds produced by aircraft and has the potential for masking normal sounds produced by whales. The severity of reaction varies across species and with environmental conditions, such as the depth of water and the wave conditions. The shallower the water, the more likely the sound is going to be reflected from the bottom, and the longer it is propagated and perceived by the whales. At angels greater than 13* from the vertical, much of the incident sound may not be heard underwater, especially in calm conditions or deep water since most will be reflected. Rougher seas provide water surfaces at angles more conducive for sound propagation (Richardson et al. 1995). Responses of humpback whales to overflights are varied. Shallenberger (1978, in Richardson et al. 1985) has observed disturbances provoked by aircraft circling at 305 m but none at 152 m. The size of. the group of whales may be related to the response to an overflight: single whales and small groups showed fewer defensive responses than larger groups (Herman et al. 1980 in Richardson et al 1995).* Groups composed of all adults tended to engage in evasive maneuvers while adults surrounded 'calves in mixed age pods. Defensive behavior included bubble blowing, protective movements by mothers toward calves, and threatening tail movements (Bauer and Herman 1986). Page 52 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part U: Description of the Affected Environment National Marine Sanctuary Concern over the impacts of boating activities on whales has been growing since a 1977 report by Wolman and Jurasz. Another study (Herman et al. 1980) indicates that human activities may influence distribution of whales in Hawaii. On rare occasions humpback whales reportedly "charged" toward the boat and "screamed" underwater, apparently as a threat (Payne 1978). Concerns over vessel and whale interaction centers on two questions: (1) what is the immediate response by whales to an approaching boat?, and (2) what are the long term changes to distribution and abundance patterns of the entire whale population from boating activities? The effects of vessel traffic on whale behavior have been shown directly using shore station observation of whales at varying distances from vessels (Bauer 1986; Baker et al. 1982; Baker et al. 1983), as well as indirectly through demonstrations of negative distributional effects with vessels based on aerial survey results. Bauer (1986), observing whales in the waters off Maui, examined a variety of behavioral variables and found changes in respiration rates, dive times, and general activity levels with increasing proximity of vessels. Baker and others (1982, 1983; Baker and Herman 1989) noted similar responses in southeastern Alaskan waters and showed patterns of "horizontal avoidance" (i.e., faster swimming with fewer dives) when vessels were 2,000 in to 4,000 m a*way, and "vertical avoidance" (i.e., longer dive times) when vessels were from 0 in to 2000 in away. Although, these studies did not indicate how long these behavioral changes persisted. Forestell (et al. 1990) states, "there are reliable data which indicate that unpredictable, high- speed movement of any motorized vessel within 0.4 kin of whales may cause short-term changes in behavior, such as respiration rate or movement direction". The same study confirms that humpback whales avoid the Lahaina area of Maui, "in all likelihood because of the density of human activity" (Forestell et al. 1990). Several studies in the Hawaiian wintering grounds suggest that mother-calf pairs became proportionately less frequent close to shore when recreational boating was increasing (Glockner-Ferrari and Ferrari 1985, 1990; SaIden 1988). Although, these studies were not able to determine.whether the link with boats was causal. Reactions of humpbacks to vessels vary considerably and there is presently no indication that any one type of boat has a greater effect on whales, except possibly large vessels, such as cruise ships (Baker et al. 1983); large military or seismographic vessels (Tyack 1989); or the small and highly maneuverable thrillcraft (Green 1990). 2) Commercial Whale Watching Boats and Research Boats Since whale watch trips and scientific research trips frequently operate at locations where humpback whales aggregate for feeding or reproduction, it could be feared that such activities might displace whales from important habitat. This does not appear to have happened during more than a decade of intensive commercial whale watching near Cape Cod Bay, Massachusetts (NMFS 1991). Humpbacks remain there for extended periods and return annually, despite exposure to many ships, fishing vessels, and whalew@tching boats (Beach and Weinrich 1989; Clapharn et al. 1993). Humpbacks that are approached slowly and steadily, following established guidelines for whalewatching, show no "adverse reactions". However, those approached within <30m, or via aggressive boat maneuvers, show various changes in behavior (Richardson et al. 1995). Watkins (1986) noted that humpba&s in this area have become less responsive to vessels since whalewatching became common, but they tend to be silent when near boats. Recently, some hurripbacks, mainly young animals' have begun to approach slow-moving whalewatch vessels. Some occur in busy shipping lanes, and some are struck by vessels (Richardson et al. 1995).- The, situation as described above, however, may be different in Hawaii and the cumulative effects of whalewatch boats, scientific research boats, recreational, and commercial boat traffic on humpback whales needs to be assessed. To provide for better protection for humpback whales and to minimize effects of increasing vessel traffic on humpback whales in Hawaiian waters, NMFS Final Environmental Imp4ct Statement Page 53 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary published a interim rule in 1987, under the ESA (52 FR 44912) establishing a 100-yard approach limit for vessels (or people), a 300-yard vessel approach limit in cow/calf areas, and a 1000-foot overflight limit. A final rule was published by NMFS in January 1995 (60 FR 3375) which retained the 100-yard vessel approach limit and 1000-foot overflight limit, but eliminated the cow- calf areas and the 300-yard distance requirement. 3) Noise from Industrial Activities (Construction. and Dredging) Construction activities in the water or at or near the water's edge may cause whales to abandon an area (Shallenberger 1978; Herman 1979). Water-dependent construction activities frequently involve loud noises or vibrations associated with blasting, dredging, and filling which could result in displacement, injury, or mortality of humpback whales (Townsend 1991; NMFS 199 1). Turbidity, and the discharge of pollutants or resuspension of other. sediments may result from these activities as well. While the actual physical loss of habitat may be small in comparison to the total habitat available, secondary effects associated with harbors, ramps, moorings, and hotels; development of tourism focusing on watching whales; degradation of water quality resulting from - increased surface runoff (agricultural, industrial, and residential); and sewage effluent from land and vessels, may likely have irreversible consequences on the distribution and -reproductive success of humpback'whales (Nitta and Naughton, 1989). These nearshore activities may especially affect cows and newborn calves who may be found in waters less than 10 fathoms deep. 4) Sonars Ships and larger boats routinely use fathometers, and powerful side-looking sonars are common on many military, fishing, and bottom-survey vessels. Use of active sonars in commercial whaling after World War II often caused* strong avoidance by baleen whales (Richardson et al. 1995). The emitted pulses reportedly tended to scare baleen whales to the surface (Reeves 1992). Reactions to 3.3 kHz sonar pulses caused wintering humpbacks whales to move away, and 3. 1 -to 3.6 kHz sonar sweeps increased swimming speeds and track linearity (Maybaurn 1990, 1993). Watkins (1986) states humpback whales. often react to sounds at frequencies from 15 Hz to 28 kHz, but not to pingers and sonars at 36 kHz and above. It should be noted that these short-term observations @provide no information about long-term effects on whales. 5) Explosions Underwater explosions are common during marine construction and demolition, and during some military operations. Little is known about behavior of humpback whales near explosions. Recently, humpbacks in a Newfoundland inlet was exposed repeatedly to large explosions in subbottom rock (Richardson et al. 1995). Charge size was usually 200-2000 kg. Humpbacks were common within 10 km of the blast site. Whales -2 Ian from the blasts showed no obvious reactions. It is not known whether the nonresponsive whales had habituated before observations, began, or if any of them had suffered hearing damage. However, two dead humpback whales with severe -mechanical, damage to the ears were found near the blast site. The two whales probably were killed by the blasts, but it is not knowhow close they were to the explosions. 6) - Acoustic Ocean Science Studies Acoustical oceanographers and other underwater acousticians project nonexplosive low frequency sounds into the sea to study sound propagation and ocean properties affecting propagation. , This type of work has been done for many years. Recently, it has become controversial because of the possible effect's on marine mammals. Few specific data are available on reactions of marine mammals to these sounds. When low frequency sounds are used for ocean Page 54 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary science research, they are usually projected into the deep sound channel, where propagation is efficient (Richardson et al. 1995). During the Heard Island Feasibility Test in the southern Indian Ocean sighting rates for medium and larger-sized whales, mainly pilot, beaked, and balaenopterid whales were lower during than before transmissions. The transmitted sounds may have elicited avoidance by some whales, especially beaked whales and especially in the area visible from the source vessel itself. Sperm and pilot whales ceased calling within 36 hours after transmissions ended. Some large whales however, remained in the general area during transmissions. Reactions of marine mammals during the,low frequency sound transmissions during the Heard Island Feasibility Test were considered inconclusive due to low sample size, lack of, statistically significant differences, and inability to determine if whales werereacting to the ships in addition to r@acting to the transmitted sounds (Richardson et al. 1995). More recently, scientists at the Scripps Oceanographic Institute have proposed a new acoustic project called Acoustic Thermometry of Ocean Climate (ATOC) in the Pacific Ocean. The ATOC program involves sending acoustic signals from two transducers, one located in the vicinity of the Pioneer Searriount off the coast of California, and the other to be located off the north shore of Kauai. By receiving these signals at passive listening arrays located around the Pacific Rim, the average temperature of deep-ocean water,columns can be calculated. According to scientists at Scripps, if global warming is a reality, the temperature of the ocean will reveal it more reliably than monitoring atmospheric temperature differences.'The California ATOC source has been operating since October, 1995, and the Kauai source is scheduled to commence operations sometime this fall. A Marine Mammal Research Program (MU@VIRP) was set up by Scripps to investigate the effects of the low-ft-equency sounds produced by ATOC on marine mammals. The purpose of the ATOC MMRP, designed to be Independent of the ATOC project, is to determine: a) the baseline abundance, distribution and behavior of marine mammals in the vicinity of the ATOC source (with special focus on endangered humpback whales); and b) whether the ATOC transmissions produce any changes in these parameters. The ATOC MMRP has brought together some of the most experienced marine mammal scientists in the country to focus on these. assessments. Research will be carried out for the next several years. These studies should provide important data on the effects of low-ftequency noise onmarine mammals. v. Habitat Degradation 1) Chemical po llution (point and non-opoint) The overall impact of pollution on habitats used by humpback whale is not known. Water quality degradation resulting from increased sewage effluent (containing toxic materials or daughter products from pesticides, heavy metals or chlorines), pollutants (toxins, heavy metals, pesticides, pathogens) associated with surface runoff (agriculture, industrial, and residential), and the leaching of vessel hull anti-fouling compounds in enclosed harbors (e.g., tributyltin) may adversely affect the distribution and physical well-being of humpback whales using nearshore waters (Nitta and Naughton 1989). These pollutants, in high enough concentrations, may affect the health of the whales (UH Sea Grant, 1994). Untreated sewage dumped from vessel holding tanks and pumped from municipal outfall during periods of overflow, such as storms and plant malfunctions, are sources of many infectious agents, viral, bacterial,and mycotic, to which cetaceans have shown a definite susceptibility (Dailey, 1985). Although specific data from Hawaii are absent, concentrations of organochlorine pesticides, heavy metals, and PCB's have been reported - in humpback'whale tissues from Canadian, United States, and Caribbean waters (Taruski et al., 1975). In addition to the Humpback Whale Recovery.Plan, other researchers agree that pollution from ships or shore can be a problem for whales (Tinney 1988). Additional concerns include pollution from cruise ships, military activities, use of driftnets, development of geothermal energy, sand mining activities, and development of harbors and resort facilities (Forestell et al. 1990). Final Environmental Impact Statement Page 55 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary 2) Habitat Disturbance Scientific studies have indicated some general tendencies of whales to avoid areas of dense human habitation, such as Oahu, and the area of Maui around Lahaina. (Herman et al. 1980 and Forestell and Brown, 1992). The surveys of Herman, Forestell, and Antinoja (1980) also showed sudden decreases in whale density for the waters off Lahaina Roadstead, an area of heavy vessel utilization. Forestell (1989) noted the same negative distributional trend for the Lahaina area as well as the waters adjoining the Keawakapu boat ramp on the Kihei coast of Maui during the 1985 breeding season. Comparisons between earlier aerial surveys (1977-*80) with those of 1990 offer mixed evidence regarding vessel effects (Mobley and Bauer 1991). Sighting rates (number of whales/hour of survey) increased in the majority of subregions examined across the 10- to 13-year period, including those areas previously described as showing negative distributional effects (waters off Lahaina and Kaanapali); however, those regions showing the greatest increases from the 1977-80 to the 1990 surveys were all characterized as leeward areas with low levels of vessel traffic (Mobley and Bauer 1991). Mobley and Bauer hypothesized a "spill over" effect into these less utilized coastal regions, suggesting that densities of whales in the four-islands and Penguin Bank regions had reached-some threshold level and whales were moving into other waters with less traffic. It should be emphasized that factors other than vessels may account for these recent distributional changes. A more comprehensive research study determining the impacts of vessel and vessel traffic on humpback whales will be a priority area during the implementation of the Sanctuary Management Plan. Aerial survey data from Foresteff aM others (1985) and Forestell (1989) indicate that "human impact on distribution patterns appeared to be highly localized, dynamic, and reversible." Forestell, et al. (1990) suggest that all boats operating regularly between Maui and Lanai are essentially the same from a whale's perspective. There is no evidence that the whales differentiate between a whale watch boat, a charter fishing boat, a privately owned recreational boat, or a parasail boat. Any of these. types of boats can bother a whale, and any of them may be ignored by a whale. What the boat is doing, and how many of them there are, is probably more important than what kind of boat it is (Bauer and Herman 1986). The authors also suggest that because whales move throughout the nearshore waters of the main Hawaiian Islands and humans engage in such a wide variety of activities in these same waters, there is a "complex and dynamic set of interactions [that] requires a comprehensive, state- wide monitoring and management plan" (Forestell et al. 1990). In summary, scientific opinion and evidence suggest that human activities that could affect humpback whale behavior and whale habitat include entanglement in fishing nets and long lines (which are not applicable in Hawaii); noise from vessels, aircraft, and construction projects; shipping; disturbance from recreational boating, tour-boating, jet skiing, parasailing; degradation to the water quality from waste disposal and non-point source pollution from coastal development; and by the physical loss of habitat or activities that may cause whales to abandon their habitat and/or interfere with reproductive behaviors in Hawaii. For most of these activities, additional monitoring and research would be required before determinations could be made on the degree of impact on whales from such activities and any management schemes that would be necessary to help minimize the conflicts and impacts. d. Protection, Legislation, and Management Humpback whales first received protection in 1966 when the International Whaling Commission placed a moratorium on all commercial whaling. In addition, all marine mammals within the U.S. and territorial waters are currently protected by the. Marine Mammal Protection Act -Page 56 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary of 1972 (MMPA), as amended. The MMPA established a moratorium, with certain exceptions, on the taking of marine mammals in the U.S. waters and by U.S. citizens on the high seas, and on the importing- of marine mammals and marine marnmal products into the United States. NOAA's National Marine Fisheries Service (NMFS) is charged with the interpretation and administration of this act. Humpback whales are also protected by the Endangered Species Act of 1973 (ESA), as amended. NMFS is also the primary resource agency charged with administration of the ESA for marine species,'and in 1991 released the Humpback Whale Recovery Plan pursuant to the ESA. The Recovery Plan established specific objectives for the conservation and recovery of humpback whales in U.S. waters. Humpbacks are further protected in Hawaiian waters by Federal and State anti-harassment regulations, enforced by NMFS (Federal Register 1987, amended by MMPA 1994, and HAR title 13, Subtitle 11, �244-40) and the State 'of Hawaii. These regulations established a minimum approach distance of 100 yards for all Hawaiian waters. Violators are subject to fines or imprisonment or both. 2. Other Marine Resources of Hawaii While humpback whales and their habitat are the only designated Sanctuary resources at this time, the HINMSA requires that the Sanctuary provide for the identification of marine resources and ecosystems of national significance for possible inclusion in the Sanctuary (see Part III - Alternatives and Part V for the process of considering other resources). Section 2302 of the HINMSA contains three findings pertaining to other marine resources: (1) the Western Pacific region has many resources of national significance and importance; (2) Hawaii's marine subtropical ecosystem is diverse and unique; and (3) the Sanctuary, designated for the conservation and management of the humpback whales and their habitat, could be expanded to include other resources of national significance which may exist within the Sanctuary. Recommendations received from the public at meetings concerning other marine resources have ranged from not including any more resources to including all small cetacean species (dolphins); false killer and pilot whales; sea turtles; Hawaiian monk seals; nearshore and offshore coral reef systems; sea birds; large shark species; invertebrates; areas of natural beauty (Na Pali Coast); culturally important areas; historically and anthropologically significant areas; and the entire marine ecosystem. The following section describes some of the marine resources in Hawaii. This section is intended to merely describe some of Hawaii's other marine resources that can be found in the Sanctuary and serve as a list of species proposed for future inclusion in the Sanctuary. a. General Information The Hawaiian Islands are one of the most remote group of islands in the world. This isolation has played a major role in the development of the archipelago's shallow marine communities. The origin of most Hawaiian inshore marine species is the Indo-West Pacific Faunal Region (Gosline and Brock 1960; Maragos 1977; Kay 1979; Bailey-Brock 1987), the center of which is in the region of the Malaysian Peninsula and the Philippine Islands. With distance and isolation from this source, many species common elsewhere on Central Pacific reefs 'are absent in Hawaii. This reduction or attenuation in species with distance from the source has resulted in a proliferation of species (i.e., enderrdcs) in many of the taxa that have successfully colonized -the islands (Zimmerman 1948). Some groups such as the reef fishes are represented by a large percentage (29 percent) of endemic species (Gosline 1955; Randall 1987). Briggs (1974) attributes the high degree of endemism among marine organisms in Hawaiian waters to a long, stable climatic history as well as to the considerable geographic isolation. Endemism in the Hawaiian marine fauna is almost entirely restricted to the species and subspecies level of the taxonomic hierarchy (Kay 1977). Endemic species comprise about 20 percent of the mollusks (Kay 1967), 20 percent of the shallow-water -asteroids and ophiuroids (Ely 1942) and 40 percent of the Alpheid shrimps (Banner and Banner manuscript). Final Environmental Impact Statement Page 57 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Because of the isolation and northerly geographic setting (resulting in relatively low water temperatures), the shallow Hawaiian marine fauna is considered to be relatively low in species diversity as compared to other tropical areas in the Pacific. There are about 450 species of inshore fishes (Gosline and Brock 1960; Randall 1980) and 40 species of 58 corals (Maragos 1977) in Hawaiian waters. Many of the shallow-water invertebrates have a greater- diversity of species; the Mollusca are represented by about 1,000 species (Kay 1979), the Polychaeta by about 243 species (Bailey-Brock 1987) and -the Bryozoa by about 200 species (Soule et al. 1987). Comparison of the number of shallow-water species of corals, mollusks, echinoderms, and fishes recorded from Hawaii with those found in other island groups to the south of the Hawaiian Islands illustrates the attenuation. In Hawaii, there are 15 genera of corals compared to 53 genera in the Federated States of Micronesia (Maragos 1977). Kay (1967) records about 1,000 species of mollusks in Hawaii and 2,500 species in the Ryukyu Islands, 90 echinoderms are known from Hawaii and 345 from the Philippines (Clark and Rowe 1971), 450 species of fishes are known from Hawaiian inshore waters, and over 1,000 species from shallow-water habitats in the Federated States of Micronesia and vicinity (Myers 1989). In general, benthic marine habitats are considered in three distinctive zones: littoral, sublittoral, and the deep sea. The littorai zone is often subdivided into a littoral fringe where marine and terrestrial organisms co-exist but marine forms dominate, and the eulittoral zone where marine species adapted to or requiring alternating conditions of submersion and ernersion are found (Lewis 1964). In the Hawaiian Islands, the tidal range is only about I m; thus, the eulittoral zone is not usually very extensive. Impinging waves may modify the extent of the eulittoral zone by effectively submerging shoreline areas that are usually above the 'high-water mark thereby obscuring otherwise clear zonation. b. Nearshore Ecosystems Hawaii's nearshore environment is divided into shoreline and subtidal ecosystems. i. Shoreline Ecosystems The littoral fringe is that area of the shoreline fringed by the seaward edge of maritime vegetation, composed in Hawaii primarily of naupaka (Scaevola), hau (Hibiscus) and sea heliotrope (Messerschmidia). The zohe is above the reach of the waves and tides but is markedly affected by salt spray. Two regions are distinguishable: an upper region that is often localized in occurrence and characterized by broken limestone or basalt boulders, and a lower region of more or less continuous rocky substrate of cemented limestone or basalt (Emery and Cox 1956). In the upper region where boulders are covered by a canopy of maritime vegetation and the undersides are characterized by conditions of high humidity, at least six species of mollusks and one isopod are comnionly found. Seaward of the boulder region the shoreline is dominated by two littorine species, one of which is from the Indo-West Pacific and the other is endemic to Hawaii. Both of these species require access to the ocean in order to complete their life cycles, Just seaward of this, but above the reach of the waves, a common nerite (pipipi, NeMa picea) and two grapsid crab species are found. Where basalt outcrops extend seaward from the shore, extensive areas of water-leveled benches, vertical cliff faces, and boulder beaches are prominent features of the coastline on all the high islands. The shoreward portions of benches and beaches are part of the littoral fringe, but the seaward sections are alternately exposed and immersed by tides twice daily and scoured by waves seasonally. On basalt benches the highest level of wave action is marked by a line of the -alga akiaki (Ahnfeltia concinna). Below the Ahnfeltia is a variety of frondose algae that covers the substratum with increasing density on approaching the sea. This section is, in turn, succeeded seaward by a broad band of pink coralline algae (Porolithon), and the interface between the shore and the sea is Page 58 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary marked by a mix of other algal species. The dominant mollusks seawaid of the akiaki are the opihi (Cellana exarata), and in the Porolithon zone the larger yellow-foot opihi, Cellana sandwicensis are found as well as the single urchin, Colobocentrotus atratus. The frontal slope of the substratum is riddled with borings from sea urchins (Echinometra oblongata and E mathaei) as well as from a number of mollusks. Two species of blennies (including the paoo or Istiblennius zebra) are found in this habitat. The pattern described represents the broadest expression of eulittoral zonation found in Hawaii, and it is variously modified on vertical cliff faces, and in sheltered coves and ba:ys. On vertical cliff faces, the Ahnfeltia zone and the succeeding frondose algal zone are absent, with the littorines and nerites of the li'ttoral fringe merging directly into the Porolithon-encrusted zone. In sheltered coves and bays, especially where there are intrusions of brackish ground water, the Native Hawaiian oyster (Ostrea sandvicensis) will encrust vertical surfaces between the littoral fringe and the subtidal. Where sufficient covera:ge of water occurs, there is an assemblage of fishes that forage over this substrate including herbivores such as the amaama or mullet (Mugil cephalus), the kupipi (Abudefiduf sordidus), carnivores such as the papio (various species of the family Carangidae), aholehole (Kuhlia sandvicensis) and a number of wrasses or hinaleas (Labridae). Calcareous or carbonate shorelines are dominant features of the coastlines of all the major islands except Hawaii. Solution benches are one form of the calcareous or carbonate shoreline. Topographically, solution benches resemble atoll reef flats, consisting of sea level platforms extending from I m to 30 m seaward from the shore. The benches are separated from shore by a raised, sharply pitted limestone zone and a nip (an indentation at the base of the vertical section).* Seaward of the nip, the flat-topped surface is densely matted with an algal turf. At the sloping outer edge, calcareous algae and to a lesser extent, corals, contribute to the structure of the bench. Because of its height above sea level, the surface of the bench may be exposed at low spring tides for periods of as long as four hours. The biota -of calcareous shorelines is distinguished from that of basalt shorelines by its cover of thick algal turf. In and among the turf are numerous small invertebrates including polychaete worms, mollusks (cones, cowries, miters) and sea urchins. Both the flora and fauna are conspicuously zoned. The pools of the pitted zone, which are in effect the littoral fringe, are inhabited by small littorines and fishes including the paoo (Istiblennius zebra) as well as juveniles of severalfish species (mamo - Abudefiduf abdominalis, kupipi - A. sordidus, aholehole - Kuhlia sandvicensis). In deeper depressions on the bench that permanently hold water, a much greater diversity of invertebrates and fishes will be found. Tide pools occur on sea level basalt outcrops, some are formed by depressions in the water-leveled benches, and others are formed by massive boulders fronting the sea and on the benches of calcareous shorelines. Physical conditions in marine pools vary with exposure to the sea. Tide pools that are farthest from the sea undergo striking variations in temperature and salinity, whereas those at the seaward edge exhibit essentially marine conditions. The most exposed pools are characterized by sand substrates bound by cyano-bacterial mats. Few marine species are found here because of the extreme conditions; among those present, however, are several species of mollusks, crabs, and fishes. Seaward pools are progressively more densely turfed with a variety of algae, and the diversity of mollusks, polychaetes, crustaceans, echinoderms, and fishes increases. Many of these seaward pools serveas a nursery habitat for a number of marine fishes including the aholehole (Kuhlia sandvicensis), the marno (Abudefduf abdominalis), kupipi (A. sordidus), manini Acanthurus tfiostegus), and kumu (Parupeneus porphyreus). Sandy beaches form another distinctive shoreline in the high islands. In general, sandy shorelines are characterized as low, sloping beaches backed by a wall or raised coral platform. Sand is composed of calcareous remnants from foraminifera, mollusk shells, echinoderm, and Final Environmental Impact Statement Page 59 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary coralline algal fragments except on Hawaii, where beaches -are composed of black sand and olivine (Moberly et al. 1965). Hawaiian beaches may be subdivided into three zones: (1) an upper beach including the vegetation line; (2) a mid-beach between the high-tide line and the vegetation line, its extent dependent on slope and ti 'de; and (3) the lower beach that is continuously awash by waves. The biota of sandy beaches is associated with both sand grain size and beach slope. The biota of the upper beach is characterized by amphipods, isopods, and ghost crabs which burrow in the area (Fellows 1966). Ghost crabs are also found in the mid beach slope area and the lower beach slope is characterized by the mole crab (Hippa pacijica), spionid polychaetes and four species of the gastropods (Terebra spp.; Miller 1970). Fronting many of these different shoreline types am fringing reefs. In general, Hawaiian reefs are not as well developed or diverse as reefs of other Pacific islands, again due to the relative isolation of the archipelago and its geographic position at the northern extreme of coral reef development; thus, water temperature serves to retard coral growth and development. More than one-half of the shoreline of the older islands of the chain (i.e., Kauai, Oahu, Molokai, Lanai, and Maui) is fringed by coral reef The reefs are wide, shallow platforms extending as much as 300 m seaward from the shore. The reef platforms are typically subtidal, usually between depths of I m to 3 m below mean sea level, although occasional sections may be exposed at low spring tides. The reef flats are predominately sand, coral rubble, and coralline algae.Crustose coralline algae are the dominant reef builders on Hawaiian reefs with coelenterate corals being relatively unimportant in the overall fringing reef habitat (Littler 1973). Coral growth is probably -best developed along the frontal edges of the reef flats or in adjacent (seaward) deep water areas. Reef flat assemblages are perhaps the most. diverse of those occurring along Hawaiian shorelines partly because of the extended period of time they are submerged. Reef flats have a variety of habitats including solid substrates of calcareous algae and corals, stands of frondose algae, rubble, and sand patches. Because of the variety of habitats, the distribution of reef organisms is patchy; where there are sand patches, infaunal organisms such as mollusks, echinoderms, and polychaetes occur; where there is rubble or living coral, a multitude of other species including fishes are found. Often estuaries are found where freshwater streams enter the ocean. Estuaries are defi@ned as river valleys inundated by marine waters and receiving freshwater input on the landward side; estuaries may also occur as the tidal portions of streams. In the Sanctuary, Cox and Gordon (1970) note the following areas with estuarine characteristics: Molokai: Halawa Stream and Bay, Pelekunu Bay, and the fishponds of South Molokai; Maui: Maliko Bay, Kahului Harbor, Kahakuloa Bay, Honokohau Bay, Honolua Bay, and the estuarine bays of the northeast coast of east Maui including Honomanu, Makaiwa, Waipio, Hoolawa, Pilale, and Kuiaha. Estuarine ecosystems isupport an endemic fauna of about 38 species. Most of these species are eurylialine and most are derived from marine rather than fresh water ancestors (Timbol 1972). Typical estuarine endemic fishes include the oopu (Awaous genivitialus), oopu nakea (A. stamineus), aholehole (Kuhlia sandvicensis), and the mollusk, the hihiwai (Neridna granosa). Estuaries are also the primary habitats of a few highly sought-after food species such as the introduced Samoan crab (Scylla serrata), and they are the nursery for a number of inshore marine fishes such as the amaama (Mugil cephalus), awa (Chanos chanos), kaku (Sphyraena barracuda), aholehole (Kuhlia sandvicensis), and papio (several species of the family Carangidae). Many estuaries in Hawaii are now affected by the invasion of exotic species such as the Tahitian prawn (Macrobrachium lar) which tend to replace the native biota. Although estuaries do not comprise a large, well defined ecosystem type in the boundaries of the Sanctuary, they remain an important habitat type. Despite low rainfall along much of the Page 60 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary coastline of the Sanctuary (e.g., west Maui), many small, intennittent streams -may serve as important nursery habitat albeit, the availability of this habitat is transitory. Related to the usual estuarine habitat are mangroves. Mangroves were introduced on Molokai in 1902 and on Oahu in 1922. On both islands there are several developed stands that now exhibit many of the characteristics attributed to mangrove swamps in other tropical areas, but the Hawaiian stands lack the extensive flora and fauna of typical large mangrove stands because of their recent development (Walsh 1963). Recent attempts have been made to control and otherwise remove mangroves from wetland areas (e.g., Kaloko-Honokohau National Historical Park on the Kona coast, the Nuupia Ponds Wildlife Management Area on Mokapu Peninsula, Oahu) where they are eliminating open water habitat that serves as critical foraging grounds for threatened and endangered waterbird species such as the kukuluaeo or Hawaiian Stilt (Himantopus mexicanus knudseni). ii. Subtidal Ecosystems In addition to coral communities. associated with fringing reefs, corals extend subtidally to depths of at least 50 m in Hawaiian waters, although the greatest development of these reefs is at depths from a few meters down to about 30 m. iPrime examples of coral community development may be seen on submarine surfaces of recent lava flows off the coast of Maui and in the waters between Maui and Molokai. Coral communities are well developed around the islet of Molokini where commercial diive tours thrive. As discussed, coral communities are better developed where they are protected from high wave activity; thus, the leeward (western) coasts often have well- developed examples; however, coral communities are a characteristic of all subtidal areas with appropriate hard substratum around all of the islands. Hawaiian coral communities show a zonation that is related primarily to wave exposure and indirectly to depth. The three assemblages are described below. A Pocillopora meandrina assemblage is associated with coastlines where there is considerable wave action and a basalt boulder or limestone/lava pavement in depths from about I m to about 12 m; occasionally the P. meandrina assemblage will be found down to depths of about 30 m. Pocillopora meandfina is one of the first coral species to colonize new substrates whether they are lava (Grigg and Maragos 1974) or from anthropogenic sources (concrete, etc., Brock unpublished). This coral species is dominant in the shallow waters at Molokini Islet and at many sites around Lanai, Kahoolawe, and Maui islands. , The P. meandrina assemblage is often interspersed with other species of corals such as Porites labata and Monitopora verrucosa, soft zoanthid corals such as Palythoa wherculosa and Zoanthus spp., and the sea. urchins, or wana, Echinometra, Echinothrix, and Tripneustes. More than 50 species of fishes are routinely encountered in the Pocillopora mew?drina zone (Hobson 1974, Gosline 1965). Included in this group. are moray eels or puhis (Muraehidae); squirrelfishes or alaihis and mempachis (Holocentridae); aholehole (Kuhlia sandvicensis); aweoweo (Priacanthus cruentatus); upapalus (Apogonidae); nenue (Kyphosus bigibius); commercially important goatfishes including moano (Parupeneus multifasciatus), weke (Mulloides flavolineatus), kumu (Parupeneus porphyreus), and occasionally the munu (P. bifasciatus) fishes (Pomacentridae); wrasses or hinaleas' (Labridae); palukaluka (Scarus rubroviolaceus); surgeonfishes including the api (Acanthurus guttatus), manini (A. triostegus), maikoiko (A. leucoparieus), pakuikui (A. achilles), maiii (A. nigrofuscus), maiko (A. nigroris), black kole (Ctenochaetus hawaiiensis), kole (C strigosus), maneoneo (Zebrasoma velifiwm), umaumalei (Naso lituratus) and kala (N. unicomis); gobies and blennies (Gobiidae and Blenniidae), and a number of smaller species. Other species often encountered in the Pocillopora meandfina zone include the omilu (Caranx melampygus), papios (family Carangidae), lai (Scombroides lysan), amaama (Mugil cephalus), nehu (Stolephorus purpureus) as well as needlefishes and halfbeaks (Belonidae and Hemiramphidae). Final Environmental impact Statement Page 61 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Just seaward and slightly deeper of the Pocillopora meandrinq assemblage is the zone dominated by Porites lobata. Where wave activity is not significant, Porites labata usually grows -as a rough hemisphere attaining sizes in excess of 4 m in diameter. This species lays down annual growth bands much like a tree thus the age of individual colonies may be determined (Knutsen et al. 1972). Porites lobata has a radial growth of about I cm/yr and will attain an age of close to 200 years (Grigg 1982). In bays where wave activity may be light, the zonation of Pocilloporti meandrina and Porites lobata may be less obvious; in these situations, A lobata may be much more abundant than P. meandrina. Porites lobata is successful in populating almost any consolidated area from shallow depths down to 30 m but will modify its growth form in response to physical conditions of the environment (Maragos 1972). Where there is surge, the coral is usually flat and strongly encrusting; in deep or more protected waters, the coral occurs as a large lobate hemisphere. A number of other coral species are found in the A lobata assemblage including P. meandrina, Mondpora verrucosa, M. patula, M. verrilli, M. flabellata, Porites compressa, and a host of lesser species (Fungia scutaria, Leptastrea spp. Cyphastrea spp.). The diversity of fishes encountered in the zone of Porites lobaza is greater than that seen in the Pocillopora meandrina zone. The difference in diversity may be related to the greater depth and diversity of habitats available in this *zone. Gosline (1965) reports 90 species from this biotope; Hobson (1974) notes that most species seen in his study of coral reef fish communities of the Kona, Hawaii coast were present in this coral rich habitat. Brock (1990a; 1992a,b,c; 1993a,b,c) has recorded more than 60 species of fish from the biotope in which Porites lobata dominates'on Oahu, Maui, and the Big Islands of Hawaii.. . . In general, seaward of the Porites lobara zone or biotope is the biotope of Porites compressa whose dominated assemblages are usually found at depths below 8 in to 10 m down to about 30 m. Porites compressa colonies -form ftagile thickets that may cover hundreds of square meters of substratum. Because of its delicate structure, A compressa is usually found in deep water or is situated in locations that are relatively protected from the impact of storm waves. Protected locations include bays as well as the leeward (west) coasts of the larger islands (here West Maui). Again, many of the shallow-water invertebrates and fishes recorded from the Hawaiian Islands are found in this zone. .Most of the conunerciaUy important inshore fishes and invertebrates are encountered in the biotope of Porites compressa and much of the fishing effort today is focused in the biotopes of P. lobata and P. compressa. In deeper waters at depths greater than 25m, large boulders and coral rubble dominate the bottom, while hard corals and benthic algae are either absent or their presence, greatly reduced. Well-developed ten-aces and "drop-offs" have been reported at depths of 50, 60, and 75m and are assoc-iated with some of the most abundant and economically valuable fisheries in the State. Commonly found, for example, are bottom-dwelling carnivores such as the hapu'upu'u or grouper (Epinephelus quemus) and species of snappers or lutjanids including uku, o'pakapaka, ehu, onaga, and where sandy bottoms occur, the kona crab (Ranina ranina). Little is known about biological assemblages occurring at depths greater than 100 fathoms. Scientific research and limited -commercial harvesting, however, has revealed the presence of precious corals such as the gold (Gerardia sp.), bamboo (isididea), and pink (Corallium. sp.) as well. as stocks of deep water caridean and penaeid shrimp. Commercial exploitation of these deep- water resources occurs within the waters of the. Sanctuary (DOC, 1984). c. Cetacean Species Found in Hawaii The order Cetacea (dolphins and whales) consists of two suborders: Odontocetes (toothed cetaceans) and Mysticetes (baleen whales). Generally, a useful distinction between them is one of size since the great whales are all Mysticetes, with the exception of the sperm whale, an Odontocete. Page 62 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary Shallenberger (198 1) identified 24 species of cetaceans (five Mysticete and 19 Odontocete species) in Hawaiian waters on the basis of stranded specimens or field observations (see Table 11- 5). Nitta (1988) documented all cases of stranded cetaceans recorded between the years 1936 and 1988 which comprised 17 of these species. From both sets of data it is clear that of the Mysticete species, only the humpback whale (Megaptera novaeanglide) can be considered seasonally resident. Sightings; of the remaining four Mysticete species (Bryde's, finback, minke, and right whales) were so rare, as to be considered anomalous. Of the Odontocete species shown in Table 11-5, five were identified on only one or a few instances and are similarly designated as anomalous. The remaining 14 species are designated as rare, uncommon, or common in order of increasing occurrence. Of the eight species of Odontocetes identified during the 1993 surveys of Hawaiian waters (see Figure 11- 16), four were found within. the 100-fathom limit (spinner dolphins, spotted dolphins, bottlenose dolphins, and false killer whales) and thus would likely fall within the jurisdiction of the current proposed marine sanctuary boundaries. It should be noted, however, that because most of the species listed in Table H-5 are wide-ranging, other Odontocetes would likely be found within the proposed sanctuary limits as well. Data from Shallenberger (1981) concerning these four species are summarized below. Additional pertinent data from the 1993 aerial surveys are also included. TABLE U-3: Cetacean Species Found in Hawaii with Results of 1993 Aerial Surveys* Depth of '93 sightings Common (Scientific) Name Observations Frequency (fathoms) <100 >100 -MYSTICETES: -Fin whale (Balaenoptera physalus) stranding (1) Anomalous Bryde's whale (B. edent) field obs (few) Anomalous -Minke whale (B. acutorostrata) field obs (1) Anomalous Humpback whale (Megaptera field obs Common yes yes -novaeanglide) (many) -Right whale (Balaena glacialis) field obs (1) Anomalous .ODONTOCETES: Sperm whale (Physeter macrocephalus) field obs Uncommon no yes (many) Bottlenose dolphin (Tursiops gilh) field obs Common yes yes (many) Spinner dolphin (Stenella longirostris) field obs Common yes yes (many) Spotted dolphin (Stenella anenuata) field obs Common yes Jes (many) -Striped dolphin (Stenella coeruleoalba) stranding (13) Rare Rough-toothed dolphin (Steno field obs Common brednaensis) (many) Common dolphin (Delphinus delphis) field obs (1). Anomalous Whitesided dolphin (Lagenorhynchus field obs (1) Anomalous obliquidens) Risso's dolphin (Grampus griseus) field obs (2); Rare Pygmy sperm whale (Kogia breviceps) stranding (8) Unconnnon no Dwarf sperm whale (Kogia simus) field obs (1) Anomalous Final Environmental Impact Statement Page 63 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Killer whale (Orcinus orca) stranding (1) Anomalous False killer whale (Pseudorca crassidens) field obs Common yes yes (many) Pygmy killer whale (Feresa auenuata) field obs Uncommon (many) Melon-headed whale (Peponocephala field obs Uncommon electra) (many) Pilot whale (Globicephala field obs Common no yes macrorhynchus) (many) Goosebeaked whale (Ziphius cavirostris) stranding (2) Rare no yes Densebeaked whale (Mesoplodon field obs (1) Rare densirostris) Bottlenose whale (Hyperoodon field obs (1) Anomalous ampullatus) Table adapted from Table 1 of Forestell & Brown (1992) that was based primarily on Shallenberger (198 1). Stranding results are for period 1936-87 as taken from Nitta (1987). Results of 1993 survey were added from unpublished data. Frequency is noted in decreasing Magnitude as follows: common, uncommon, rare, and anomalous. 1993 Marine Mammal Survey Previous surveys in Hawaii reported only on the locations of humpback whales (Herman and Antinoja 1977; Rice and Wolman 1978; Herman et al. 1980; Baker and Herman 1981), thus, until recently, there were no data from systematic surveys which included Odontocete species. The most extensive marine mammal survey performed to date in Hawaiian waters was conducted during February and March, 1993 as part of a baseline designed to detect the impact of the ATOC transmission on resident marine mammal species (Mobley et al. 1993; Forestall et al. 1993). ATOC was designed by the Scripps Oceanographic Institute to detect global warming trends using low frequency sound. A series of four aerial surveys were conducted during 1993 primarily to assess the abundance and distribution of humpback whales, though locations and group compositions of all marine mammal species seen were also documented. The surveys were designed to conform to line transect techniques, which permit abundance estimates to be projected from sighting data (e.g., Burnham, Anderson, and Laake 1980). Surveys during the 1993 series were conducted from single-engine overwing aircraft equipped with radar altimeters and global-positioning systems devices (GPS). These instruments were used to determine the location and altitude of the plane and, when combimed with the sighting angle, to determine the position of marine mammal pods by use of a clinometer. Precise distance estimation is an essential ingredient of abundance estimation. Unlike previous surveys in Hawaiian waters, the majority of the 1993 effort was concentrated in waters deeper than 100 fathoms (see Figure II-16). Effort was distributed as follows: less than 100 fathoms-23 percent, 100-1,000 fathoms-42 percent, greater than 1,000 fathoms-35 percent. Page 64 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary 23 N 1993 Aerial Survey Odontocete sightings 22- 21- Stenella spp. 16 sightings Globicephala macrorhynchus 13 " 20- Pseudorca crassiderns 8 " Tursiops gilli 5 " Ziphiid spp. 3 " Kogia breviceps 1 " Physeter macrocephalus 1 " 19- Unidentified odontocete 14 " 161W l60W 159W 158W 157W 156W 155W Figure 11-16 Odontocete sightings in Hawaii, 1993 (Mobley et al. 1993) i. Pacific Bottlenose Dolphins Pacific bottlenose dolphins (Tursiops gilli), typically larger and more powerful than their Atlantic counterparts (Tursiops truncatus), are found throughout the Hawaiian archipelago including the northwestern islands. Shallenberger (198 1) notes they are found mostly along the edges of banks or shelves, usually along the 50- or 100-fathom isobaths where upwelling from deep water occurs. Pod sizes typically range from single individuals and small groups of three to 10 animals to large groups of 100 or more individuals (Shallenberger 198 1). They feed on numerous species of fish, squid, shrimp, and other crustaceans (Leatherwood 1975; Leatherwood, Caldwell, and Winn 1976). Bottlenose dolphins adapt readily to captivity and a number of them have been kept and bred successfully at Sea Life Park and other oceanaria. During the 1993 survey groups of bottlenose dolphins were sighted on five occasions during the 1993 survey in waters ranging from less than 100 to more than 1,000 fathoms. The mean observed pod size was 15.4 individuals. Final Environmental Impact Statement Page 65 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary ii. False Killer whales False killer whales (Pseudorca crassidens) are found throughout the world's temperate to tropical oceans, but are found most often in tropical and subtropical waters (Shallenberger 198 1). Their habitat ranges from shallow (<100 fathoms) to deep water (>1,000 fathoms) and their distribution appears to be related to concentrations'of prey.' They typically travel in large pods, often exceeding 100 individuals, and frequently swim in broad formations, a possible mechanism for finding food. 'Squid beaks have been found in their stomach contents and they have been observed feeding on mahimahi (Coryphaena hippurus) and yellowfin tuna (Thunnus albacares) (Shallenberger 198 1). Eight Pseudorca groups were sighted during the 1993 aerial surveys in waters ranging from less than 100 to 1,000 fathoms. Mean pod size was 28.6 individuals. iii. Spinner Dolphins Spinner dolphins (Stenella longirost?is) are members of the genus Stenella that includes spotted dolphins (S. attenuata), striped dolphins, (S. coeruleoalba), and the Clymene dolphin (S. clymene). Spinners, so named because of their tendency to "spin" while breaching or leaping from the water, are found throughout the tropical Pacific, Atlantic, and Indian Oceans (Baker 1987). In Hawaii, they are located throughout the island chain and show distributional patterns related to physiography, prey distribution, sea state, water depth, bottom topography, and turbidity (Norris et al. 1985). They are commonly found in large groups consisting typically of 50- 100 individuals, though larger groups have been seen (Shallenberger 198 1). Spinner dolphins have been intensively studied, particularly near Hawaii Island (Norris and Dohl 1980; Norris et al. 1985; bstman and Driscoll 1991; Wursig, Cipriano, and Wursig 1991). Spinners typically show predictable home ranges, foraging at night for food in deep water (400 in- 2,000 m) where the'deep scattering layer (DSQ rises closer to the surface than normally occurs during daylight hours. Prey species for the Hawaiian spinners are not as well documented as for other regions but are believed to include at least two species of squid (Abralia estrostrica and A. trigonura) and several species of fish (particularly myctophids) (Shallenberger 198 1). Diuing the day. they typically return to bays and inshore regions to rest and socialize and to avoid predation by pelagic sharks (Norris and Dohl 1980; Wursig, Cipriano; and Wursig 199FI). Spinner dolphins were positively identified on eight occasions during the 1993 survey series in waters between 100- 1,000 fathoms in depth. Mean pod size was 50 individuals. Six additional observations were designated as Stenella species that were likely to have been either spinner or spotted dolphins. These occurred in waters ranging from less than 100 fathoms to greater than 1,000 fathoms. iv. Spotted Dolphins Spotted dolphins (Stenella altenuata) are common in Hawaiian waters and are frequently confused with spinner dolphins since they are similar in size and habitat. Most of what is known about spotted dolphins is derived from the eastern tropical Pacific and Japanese waters due to their association with the purse seine tuna industry. Spotted dolphins and related species have been inadvertently slaughtered as a result of purse seine fishing practices in these regions. Spotted dolphins are typically found in the leeward coastal waters and offshore banks of all Hawaiian Islands, as well as channel regions. Shallenberger (1981:53) writes, "Due -to the normally large herd size and the frequencies of observation, it is likely that spotted dolphins, are the most numerous Hawaiian cetacean (in te m-is of numbers of individuals)". Sirrdlar to spinner. dolphins, spotted dolphins have their own characteristic aerial behaviors including very high jumps, long low jumps, and tail walks (Shallenberger 198 1). Shallenberger noted that very little, research has been performed on'this species in Hawaiian waters. During the 1993 aerial survey, Page 66 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary spotted dolphins were positively identified in just one case, a group of five individuals, in waters less than 100 fathoms. v. Odontocete Prey Species What little is known of the feeding habits of Odontocete species in Hawaii has been gleaned from examinations of stranded specimens, occasional field observations, and from generalizations based on more extensive literature for other regions. Shallenberger noted that a significant portion of the diet of smaller Hawaiian cetaceans is made up of epipelagic and mesopelagic fish and squid. Primarily, this includes myctophid fish, some of which migrate at night to within 200 in of the surface, and several species of squid which also show vertical diurnal migrations, including Abralia ftigmura and A. astrostica. Shallenberger underscores the importance of squid to Odontocete diets by noting that virtually every stranded specimen examined contained squid beaks in its stomach contents. The myctophid species of fish are also commonly found in Hawaiian cetaceans (Shomura and Hida 1965). Local fish species of likely importance include: opelu (Decapterus pinnulatus and D. maruadsz) and akule (Trachurops crumenophthalmus). Shallenberger reported that Igger cetaceans have been observed eating mahimahi (Coryphaena hippurus), yellowfin tuna (Thunnus albacares), and skipjack tuna (Katsuwonus pelamis). These species are all commercially important and their relative availability can be assessed using catch statistics (Shallenberger 1981). vi. Predators Information relevant to Odontocete predation has been primarily anecdotal (Shallenberger 198 1), though more recent observations have occurred. Sharks have been observed to feed on live cetaceans in other oceans (e.g., Leatherwood, Evans and Rice 1972; Leatherwood et al. 1973, and more recently off Kihei, Maui (G. Nitta and A. Tom, pers. communication). In spring 1995, a juvenile humpback whale became entangled in a mooring buoy line. Upon release by the USCG, the injured whale remained in shallow water where tiger sharks (Galeocerdo cuviert) repeatedly attacked and consumed portions of the whale (G. Nitta and A. Tom, pers. communication). Other accounts exist of unidentified cetacean remains in the stomach contents of tiger sharks harvested in Hawaii, but it is not known whether the animals were alive or dead when eaten. Additional indirect evidence of shark attacks on cetaceans occurs in the form of crescent-shaped scars on the bodies'of living specimens. Hawaiian cetaceans are also frequently seen with the small circular scars characteristic of non-predatory "cookie cutter" sharks (Isistius brasiliensis). These small bites generally heal and are not known to be fatal. Occasional visits by killer whales (Orcinus Orca) could also result on some predation on calves, but none have been observed thus far. vii. Odontocete Distribution Trends Eighty-one percent of the 0dontocete pods sighted during the 1993 aerial surveys were found in waters deeper than 100 fathoms. Thirty-eight percent of the sightings were in the vicinity of Kauai and Niihau. Interestingly, the areas favored by humpback whales, the four-islands (Maui, Lanai, Molokai, and Kahoolawe), and Penguin Bank regions showed the lowest incidence of 0dontocete sightings. The Stenella species, in particular, showed a tendency to locate along the 1 00-fathom isobath, as described by Shallenberger (198 1). d - Other Endangered or Threatened Species i. Sea Turtles Five species of marine turtles are found in the waters around the Hawaiian Islands: green sea turtle (Chelonia mydas), hawksbill sea turtle (Ereanochelys imbricata), leatherback (Dennochelys cofiacea), loggerhead (Caretta caretta), and the olive ridley (Lepidochelys olivaee.a) Final Environmental Impact Statement Page 67 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary (Des Rochers 1992). Leatherback, loggerhead, and olive ridley turtles are not known to nest in the Hawaiian Islands and are rarely seen in Hawaiian waters (Balazs 1978). Hawksbills nest on the main Hawaiian Islands primarily on several sand beaches on the island of Hawaii and on the east end of Molokai (Hawaiian Sea Turtle Recovery Team 1992). The green sea turtle is the most commonly found turtle throughout the Hawaiian Island chain. More than 90 percent of the breeding and nesting of green turtles occurs at French Frigate Shoals in the Northwestern Hawaiian Islands (NWHI), although a substantial -population resides and returns to the waters within Maui and Kauai Counties. ii. Hawksbill Turtles The hawksbill turtle is an endangered species under the ESA [U.S. Fish and Wildlife Service (USFWS) 1992]. Information on the life history and ecology of hawksbill turtles in the Hawaiian Islands is lacking, although these sea turtles were well known to the pre-contact Hawaiian people (Hawaiian Sea Turtle Recovery Team 1992). The Hawaiians did not value the hawksbill as a food item possibly because of its periodic toxicity due to the turtle's dietary habits. According to Balazs (pers. comm. 1993) no more than 15 nesting sites are recorded each year. The nesting period extends from July through November (Hawaiian Sea Turtle Recovery Team 1992). The most consistently used nesting sites are Karnehame Point on Hawaii and at the river. mouth of Halawa Valley on Molokai-. The NWHI appear to be unfavorable breeding and nesting grounds for the hawksbill turtle. iii. Green Sea Turtles The green sea turtle, listed as threatened under the ESA, is a long-range migrant breeder that spends most of its life foraging and resting in nearshore benthic habitats (Balazs, Forsyth, and Kam 1987). Historically, green sea turtles nested on beaches throughout the Hawaiian archipelago, but today rarely outside the NW141 (Des Rochers 1992). The breeding season at French Frigate Shoals, which is the main nesting area within the NWHI, lasts for about five months from May through September (Hawaiian Sea Turtle.Recovery Team 1992). There are numerous sightings of green sea turtles in the waters off Maui County including Honokowai, Mahko Bay, Olowalu, Kahului Bay, and Palaau Bay on Molokai. Between 1948 and 1973, the. Island of Maui reported the highest percentage of commercial captures of sea turtles (Balazs 1980). Today, many turtles congregate in the warm water discharge from the power plan in Kahului Bay, possibly to increase their metabolism (Balazs 1980). Kahoolawe and Lanai have only occasional and rare sightings of the green sea turtles, although they may have served as important nesting grounds for green sea turtles in the past. Polihua Beach (Lanai) is the most documented area for green sea turtles nesting on the main Hawaiian Islands; however, there have been no recent observations or sightings of sea turtles at Polihua, perhaps as a result of human use and erosion along the shoreline (Balazs 1980)., According to Balazs (1984), Polihua Beach may serve as the best possibility for any future experimental restocking of sea turtles. The largest population of green sea turtles is located near Lanai at Keomuku and Kuahua (Balazs 1984). USFWS (1989) reports that green sea turtles have been seen in the off-shore waters of Kauai and are known to nest in the sandy bays along the coast of Kilauea Point and other areas along the southeast coast. There are insufficient data to estimate the historical number of green sea turtles in 'the Hawaiian Islands. Surveys of nesting turtles at French Frigate Sboals since 1973 provide a current, estimate of 750 total mature female green turtles (Hawaiian Sea Turtle Recovery Team 1992). Because 90 percent of all green sea turtle nests are found on French Frigate Shoals, the total mature female population is probably less than 900 throughout the Hawaiian Islands. Page 69 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary Green turtles feed primarily on benthic algae which is generally restricted to shallow depths. They have been reported to feed on 56 species of algae and nine species of vertebrates (Des Rochers 1992). Green turtles have been known to bask or rest on beaches (Balazs, Forsyth, and Kam 1987), although terrestrial basking is rare among sea turtles and has been exhibited by only a few populations of green sea turtles in the Pacific. In Hawaii, basking behavior seems to be limited to beaches in the NWHI (Balazs, Forsyth and Kam 1987). Most adult green turtles reside in the nearshore waters of the main Hawaiian Islands due to the abundance of preferred marine vegetation, the availability of suitable habitat for resting, and the presence of oceanic currents that carry juveniles towards the main islands (Balazs, Forsyth, and Kam 1987). Major resident areas are at depths greater than 20 in but generally not exceeding 50 m. These areas include: Kau and North Kohala Districts (Hawaii); Hana District and Paia (Maui); north and northeastern coastal areas bordering the Kalohi and Auau Channels (Lanai); south coastal areas between 'Kamalo and Halena (Molokai); Kailua and Kaneohe Bays, northwest coast from Mokuleia to Kawailoa Beach, south and southwest coast (Oahu); Princeville, Na Pali Coast, and. the south coast from Kukuiula to Makahuena Point (Kauai) (Des Rochers 1992). iv. Seabirds Before the arrival of the first Polynesians in the Hawaiian Islands, there were as many as 110 species of endemic birds throughout the Hawaiian archipelago. Between the time of the arrival of the first Polynesians and the arrival of Captain Cook in 1778, an estimated 40 species may have become extinct (Hawaii Audubon Society 1989). Since the arrival of the Europeans in the Islands, another 22 species have become extinct (Hawaii Audubon Society 1989). ' The dramatic increase in the number of extinctions has been due to the introduction of foreign plants and animals. Today, 22 marine bird species can be found throughout the Hawaiian chain, mainly in the NWHI (Hawaii Audubon Society 1989). Of the 30 species of Native Hawaiian birds listed as endangered or threatened by USFWS, only one is commonly found in the vicinity of the Sanctuary, the Hawaiian dark-rumped petrel (Pterodroma phaeopygia sandwichensis). The Hawaiian dark-rumped petrel has been observed on the Islands of Kauai, Lanai, Hawai@ -and Molokai. Once Oahu's most numerous seabird, the dark-rumped petrel is now mainly confined to the Haleakala Crater on Maui (Berger 198 1). There are barely 400 to 600 pairs of petrels in the Hawaiian Islands (Sheila Conant, pers. comm. 1993). These marine birds return during their breeding season (March-October) to nest at elevations between 7,200 and 9,600 feet, the only bird species in Hawaii that nests at such high altitudes (Sheila Conant, per. comm. 1993). Petrels spend most of their time at sea, feeding on squid, fish, and crustaceans. They come ashore only to nest and raise their young. It is possible that Maui and the other Hawaiian Islands are merely a stop-over for breeding and nesting. No observations have been conducted. V. Hawaiian Monk Seal The Hawaiian monk seal (Monachus schauinsland! ) was listed as endangered throughout its range on November 23, 1976. Counts have been made at the atolls, islands and reefs where they haul out in the northwest Hawaiian Islands since the late 1950s., By 1982, the popula *tion had declined to half of its 1957-1958 level, estimated at 3,500 seals (Altonn 1991). Since the mid- 1980's, beach counts have declined at five percent per year. NMFS estimates that currently there arebetween 1,300 - 1,400 animals (Gilmartin, pers. comm. 1994; J. Naughton, pers. 'comm. 1996). The number of births declined significantly at all five major breeding locations in 1990, followed by some recovery in subsequent years. However, the number of births has not reached the level observed in the mid-to-late 1980's, and is not expected to in the near future because of the high losses of immature seals at French Frigate Shoals and mobbed seals at Laysan and Lisianski Islands. Final Environmental Impact Statement Page 69 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Breeding populations of the Hawaiian monk seal occur almost exclusively in the NWHI. Monk seals are most abundant on Kure Atoll, Pearl and Hermes Reef, Lisianski Island, Laysan Island, French Frigate Shoals, Necker Island and Nihoa Island. A small population of at least a dozen monk seals which have been reported from the island of Niihau and the offshore islet of Lehua. These -animals have taken up residence since the mid to late 1980s (J. Naughton, pers. comm.). Hawaiian monk seals are vulnerable to human disturbance on pupping and haulout beaches, entanglement in marine debris, incidental take in commercial fisheries, possible die-offs from disease and naturally occurring biotoxins, male mobbing of female seals, and shark predation. Exploitation of the Hawaiian monk seal began shortly after 1814, when the Russian explorer Lisianski reporied that he observed -them in the NWHI (Hiruki and Ragen 1992). The monk seal served as a valuable source of oil, pelts, and food for sealers and sailors. Commercial activity and most incidental taking ended by the late 1800s after seal populations had been decimated (Hiruki and Ragen 1992).. Most, if not all, taking by humans stopped once the seal was listed as an endangered species. Since Lisianski's exploration, there have been two major population declines in the monk seal's history. One, in the 1800s, occurred as a result of extensive sealing and the second, between the 1950s and 1970s was due primarily to human disturbance of the seal's breeding areas (NMFS, 1991). The latter period resulted 'in a 50 to 60 percent reduction of the seal population (Ragen 1993). Birth count monitoring began in 1983 at the breeding islands. From 1983 to 1988 the number of recorded births increased from 162 to 224. In 1989, the count decreased, and in 1990 only 143 births were observed -- the lowest number of births ever recorded (NMFS, 199 1; Altonn 1991). Monk seals are extremely sensitive to human activity disturbances, and are rarely. seen in' the main Hawaiian Islands. Seal births were observed on Kauai in 1988 and on Oahu in 1991 (Gilmartin, pers. comm. 1994). Monk seals have- also been reported basking along the beaches of the Main Hawaidan Islands, including Maui, Kahoolawe and Oahu (Tanji 1992, 1993). Both incidents verify that the main Hawaiian Islands continue to serve as temporary resting grounds. for the monk seal. An additional small population of at least a dozen monk seals took residence near the island of Niihau and the offshore islet of Lehua in the middle to late 1980s. A list of monk seal sightings reported to NUFS in the main Hawaiian Islands since 1985 is contained in Table 11-6. TABLE 11-6: Monk'Seal Sightings in the Main Hawaiian Islands, 1984-93 Repo ed to the National Marine Fisheries Service Year Kauai Oahu Maid Molokai Lanai Kahoolawe Hawaii 1984 1 9 - 9 1985 1 2 3 1 - - - 1986 3 10 5 - 5 1 5 1987 35 13 - - - I 1988 31 11 1 1 1 - 1989 45 11 2 1 - - 1990 6 19 3 2 1 1 1991 1 1 39 7 - I 1 2 1 1992 2 37 6 1 1 4 .1 1993 3 14 7 1 - Source: National Marine Fisheries Service (NMFS) Monk Seal Recove7nan Page 70 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary The first Hawaiian Monk Seal Recovery Team, appointed in 1980, submitted its final recovery plan to NMFS in 1982. The plan, which includes a comprehensive research and management plan for the recovery of the Hawaiian monk seal, was published by NMFS in March 1983. The objectives of the plan were to (1) identify and mitigate the natural factors causing the decline in the seal populations; (2) characterize seal habitat; (3) assess monk seal. populations; (4) document and mitigate effects of human activity; (5) implement appropriate management actions leading to conservation and recovery; and (6) develop educational programs. The plan outlines the tasks necessary to meet the objective and assigns the tasks to appropriate Federal and State agencies. A new recovery team was appointed by NMFS in 1989. After the new team! s first meeting in 1989, recommendations were submitted to NMFS. Recommendations included research programs, data analyses, the Kure Atoll Head Start Project, the male mobbing problem, population monitoring, recovery actions at Midway Island, the repair of research facilities at Tern Island, and priorities for the 1990 field season. The team has recommended placing observers aboard long-line swordfish vessels operating near the Northwest Hawaiian Islands. In December, 1993, the point at which Hawaiian monk seal's may be considered recovered was discussed. The new recovery team concluded that the 1983 recovery plan still provides a useful guide to overall recovery needs. Instead of producing a new plan, the team recommended updating the 1983 plan with results of subsequent annual program reviews. In summary, the marine waters around the Hawaiian Islands contain a variety of ecosystems (shoreline to - subtidal) and species (algae, invertebrates, fish, marine mammals, seabirds, sea turtles), many of which are unique to the Hawaiian Islands. In designating the Sanctuary, Congress found that this region has many resources of national significance and importance, and that the marine ecosystem is diverse and unique. Inclusion of these resources in the Sanctuary would heighten public and agency awareness of the importance of these resources and- expand the scope of the Sanctuary's management, education, research and resource protection programs (research, long-term monitoring, education, outreach, enforcement). The Final EIS/Management Plan summarizes' some of these marine resources that have been identified by the public and other agencies for possible inclusion in the Sanctuary. More detailed information about theser'esources and did various Federal, State, and county management regimes is needed before the Sanctuary can proceed with its mandate to identify other resources for inclusion in the Sanctuary. Part V.C.3 of the Management Plan identifies a process to include the public, the Sanctuary Advisory Council (SAC) and the State in assessing whether other resources should be included in the Sanctuary. C. CULTURALIHISTORI.CAL RESOURCES AND USES Resources of national significance may include cultural and historical resources such as those of Native Hawaiians. In addition, the Sanctuary Management Plan is required by law to facilitate Native Hawaiian uses customarily and traditionally exercised for subsistence, cultural, and religious purposes. This section will explore some of the ways Native Hawaiians have traditionally interacted with the ocean and how those interactions could affect the Sanctuary or Native Hawaiian. uses. Major issues of Hawaiian sovereignty and rights are being addressed legally and politically in Hawaii today. The Sanctuary will not generally address these larger issues, but will attempt to "facilitate" customary and traditional uses as they relate to management of Sanctuary resources consistent with the primary objective of resource protection, and to establish a process for possible inclusion of appropriate culturalilhistorical resources as Sanctuary resources. In addition to facilitating Native Hawaiian uses, the Sanctuary must generally facilitate all public and private uses consistent with -the primary objective of resource protection. A more thorough description of traditional uses of the Hawaiian marine environment can be found in Chapter 6 of the Sanctuary Site Characterization Study (University of Hawaii Sea Grant, 1994). Hawaiians used the ocean . for fishing, aquaculture, trade, transportation and communication as well as religious practices. Since the Sanctuary narrowly focuses on humpback Final Environmental Impact Statement Page 71 and Management Plan Part U: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary whales and their habitat, the Sanctuary will not directly address fishing issues (i.e., regulation of commercial, recreational, and traditional fisheries). However, the Sanctuary will address issues that may have indirect effects on fishing activities (i.e., proposals for the placement of artificial reefs, etc.). This section focuses primarily on aquaculture, including traditional marine fish ponds and religious sites which are found seaward of the high water mark. 1. Native Hawaiian Settlements And Social Patterns The early Hawaiians arranged their land and seascapes to reflect iheir ideas of natural and social order. Each island was called a mokupuni or moku Mokupuni were further divided into moku@o-loko [moku], such as Ewa or Waianae on Oahu. These interior island divisions were portioned into ahupuaa, i1i, and smaller parcels which were worked and farmed by ohana, or extended family units. The ahupuaa was the basic socio-economic land unit. Generally, the ahupuaa was a pie-shaped segment of land with its apex at the summit of the central mountain ridges of an island and its wider base at the shore and beyond into ocean fishing grounds. An ahupuaa's boundaries were usually delineated by natural features such as a ridge line separating two valleys. Thus, the valley of Kahanaconstituted one ahupuaa of the moku of Koolauloa on the northeastern side of the island of Oahu. Hawaii's place names and property laws still reflect these land divisions today. The Hawaiian ahupua'a is a traditional ancestor of the modem-day watershed concept. The court of the Hawaiian Kingdom described the ahupuea. principle of land use in the case of In Re Boundaries of Pulehunui, 4 Haw. 239, 241 (1879) as follows: A principle very largely obtaining in these divisions of territory [ahupuaa] was that a land should run from the sea to the mountains, thus affording to the chief and his people a fishery residence at. the warm seaside, together with the product& of the high lands, such as fuel, canoe tiffiber, mountain birds' and the right of way to the sarne,, and all. the varied products of the intermediate land as. might. be suitable to tlw soil,. and climate of the different altitudes from the sea. soil to the mountainside- or top. The Hawaiians consider the land and ocean to be integrally connected and that the ahupuaa also include the shoreline, as well as the inshore and offshore ocean areas such as fishponds, reefs, channels, and. deep sea. fishing grounds. Ahupua'a were further divided into subzones, in both the land areas and the sea areas. Mauka - land areas MWW - sea areas kuahiwi, mountain range pu'eone, sand edge, inshore dune, sand bar, wao akua, forests of the gods po'ina nalu, point where the waves break wao kele, rain forests kai kohola, reef lagoon wao kanaka, forests acccesible to man kai pualenal yellowish. sea. at the mouth of a. stream wao, la'auinland forest, region kat ek. dark sea kahawai,. place: having water,: valleys kai u1i, deep blw sea ko kula ukal. upland slope kaipopolohua mea a Kane, purplish-blue, reddish ko kzda kai, seaward slope brown sea of Kane,. far reaches of the ko kaha kai, shoreline immeasureable sea Source: Hawaii Non-Point Pollution Control Program (OSP 1996) Within the ahupuaa, everyone had access to various resources, from the sea to the upland forests. People living at or near the shore often exchanged fish. or nearshore produce for upland products with their relatives who lived farther inland. Pre-contact Hawaiian society was highly structured Page 72 Final Environmental Impact Statement and-Management Plan Hawaiian Islands Humpback Whale Part H: Description of the Affected Environment National Marine Sanctuary and hierarchical according to ascribed social status based on ranking senior and junior lineage. Lilikala Karneeleihiwa has conceptualized the Hawaiian system of social hierarchy as a triangle: On each main island, a single Moi [King] at the apex of the society served as an intermediary between the Akua and the rest of Ka Lahui [the Nation]. Several levels of subordinate a1ii nui and Kahuna Nui -were followed by more numerous and lesser ranking a1ii and kahuna who acted as konohiki. These people created a buffer between the Moi and the vast majority of makaainana who made up the foundation of the society. Those at the top were kapu, or sacred, and possessed of mana [spiritual and political power]. Those at the bottom were noa, common or free from kapu and, by extension, without the necessary mana . . . to invoke a kapu -- although even a common fisherman, if successful, had some mana. Those in between were on a sliding scale, having less mana the farther down the triangle they slipped and the farther away they fell from high lineage (Kameeleihiwa 1992:45-46). This hierarchical system of social organization ensured that the Hawaiian nation lived in harmony with the spiritual and physical world (Kameeleihiwa 1992:25-26). Within the ancient Hawaiian social and economic systems of hierarchy and land division were the concepts of malanza aLw (Caring for the land) and pono (harmony, balance). The Hawaiians believed they were related to the land and that the abw (that which feeds) was their mother, and the plants that sustained them, particularly kalo (taro), were elder siblings. This was,also true for the sea. Many contemporary Hawaiians continue to live by these precepts, or are returning to traditional ways as a means of recasting their cultural heritage in today's world. This summary provides only a brief glimpse of ancestral Hawaiian social and religious structures. It is important to recognize that Hawaiian cultural concepts of-resource use such as pono and aloha aina (love of the land) differ significantly from contemporary western concepts. 2. Aguaculture/Fishponds Aquaculture is an important historical use of'the marine environment. According to Kikuchi (1973), "fishponds existed nowhere else in the Pacific in types and numbers as in prehistoric Hawaii". Summers (1964) states that marine fishponds are found nowhere else in Polynesia. Indeed, the practice of mariculture may have originated in Hawaii (Costa-Pierce 1987). Historical evidence indicates that fishponds were introduced on Oahu prior to the thirteenth century by settlers from the Society Islands (Kikuchi 1973). The earliest aquaculture systems were probably composed of natural bodies of water, weirs, dams, fish traps, and artificial fish shelters (Kikuchi 1973). Py the fourteenth century, true fishponds were being developed throughout the Hawaiian Islands (Kikuchi 1973). The Hawaiians built different types of fishponds to take advantage of a range of geographic and aquatic conditions. According to Kikuchi (1973), "the trend was to utilize practically all available bodies of water of some size in the construction and evolution of fishponds". The different fishponds that evolved for use in fresh, brackish, and marine waters have been classified into six main types (DHM 1990). Type I: loko kuapa - a coastal marine fishpond artificially enclosed by a seawall; Type II: loko puuone or hakuone - an isolated shore fishpond usually formed by the development of a barrier beach building a single elongated sand ridge parallel to the coast; Type III: loko wai - a freshwater fishpond located inland from the shoreline; Final Environmental Impact Statement Page 73 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Type IV: loko ia kalo or loko loi kalo, - fishpond -that uses an irrigated taro plot as an inland water pond for the raising of fish; Type V: loko umeiki -a fishtrap similar in shape and construction to a loko kuapa with many stone lanes leading into areas enclosed by nets; and Type VI: kaheka and hapunapuna - a natural pool or a holding pond. a. Estimate of Number and Distribution Estimates vary as to the number of fishponds that were built in the Hawaiian Islands. Costa-Pierce (1987) estimates there were 360 at the time of European contact; Kikuchi (1973) reports that 449 fishponds were constructed; and DI-IM Inc. (1990) lists 488 fishponds in its fishpond inventory. The location and distribution of the type of fishponds throughout the inhabited islands seems to be geographically determined. For example, on the island of Molokai, which has a protected, shallow reef along its southern coastline, more loko kuapa were constructed there than anywhere else in the islands (Costa-Pierce 1987). On the island of Hawaii, where the shoreline drops off too precipitously for construction of large walled ponds, inland upstream freshwater ponds were built (Hudson 1932). The type and location of known fishponds are listed in Table H- 7 with Type I and Type V being the most relevant. TABLE 11-7: Fis ponds by ype and sland Type 1 11 111 IV V VI lim .21 Total Niihau 1 1 Hawaii 21 61- 14 1 1 30 3 8 138 maw 11 12 7 8 6 44 Lanai 1 3 4 Molokai 44 12 2 13 3 74 Oahu 70 22 78 4 4 178 Kauai 1 16 13 7 1 14 50 Total 1 147 1 124 114 7 21 1 _T8 3 1 35 489 21= Unsure of type Source: DHM Inc. 1990; Kikuchi 1973. b. Fishponds Today With the population decline in the second half of the nineteenth century, much of the Hawaiian integrated farming system fell into disuse and disrepair. Native Hawaiians largely abandoned the practice of extensive aquaculture in favor of a Western-style food consumption patterns and the fishponds were left uninaintained. Coastal development for tourism and for residential purposes in thetwentieth century, especially since statehood, has led to the destruction of many of the ancient fishponds. Apple and Kikuchi (1975) conducted a visual survey of the coast of the main Hawaiian Islands and found only the remains of 157 fishponds. Of the 157, only 56 could be considered for possible restoration (Table 11-8). Madden and Paulsen (1977) conducted a study of 67 fishponds and found that. only 28 were still in sufficient repair to be used for mullet (Mugil cephalus) and milkfish (Chanos chanos) culture. Costa-Pierce (1987) reported that, by 1987 there were seven ponds in use for commercial and subsistence purposes. Page 74 Final Environmental Impact StatemenT and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary TABLE 11-8: Fishponds of Maui, Lanai, Kauai, and Molokai Name Location (Ili, Ahupuaa, TMK) Size Type Owner (acres) MAUI FISHPONDS - HANA DISTRICT Haneoo Haneoo/1-4-08:2 (Loko-nui;BPBM 50-Ma-A15-9) 11.2 I P Kuamaka Haneoo/1-4-08:4 (Loko-iki;BPBM 50-Ma-A15-8) 1.3 I P LANAI FISHPONDS Lopa Kaohai/4-9-03-,9 (BPBM50-La-Al-13) 0.8 I P KAUAI FISHPONDS Kee Haena/5-9-08:18 3 II S Kanoa Hanalei/5-5-01:2 4 III P (nameless) Wailua/4-1-03:16 3 II P Alekoko Niumalu/3-2-01:1 32 III P (nameless) Koloa/2-6-02:2(Hoai;BPBM 50-Ka-B4-15) 4 II P (nameless) Lawai/2-6-02:1 (Lawai Kai) 2 III P Nomilu Kalaheo-kai/2-3-10:2 4 III P MOLOKAI FISHPONDS Kainaohe Kaamola/5-6-05:22 17 I P Ualapue Ualapue/5-6-01:1 22 I S Kalokoeli Kamiloloa/5-4-02:14 28 I S Kupeke Kupeke/5-7-06:1 30 I P Niaupala Kaluaaha/5-6-08:8 34 I P Aliii Makakupaia/5-4-06:23 27 I H Kaope-a-Hina Kaluaaha/5-7-09:1 19 I P Keawanui Keawanui/5-6-06:8 54 I P Pahiomu Keonokuino/5-5-01:10 20 I S Kihaqloko Ahaino II/5-7-06:22 5 I P Kulaalaniihi Honomuni/5-7-04:34 4 I P Waihilahila Kailiulaq/5-7-06:27 4 I P Kanoa Kawelaq/5-4-03.23 50 I P Kipapa Keonokuino/5-5-01:8 10 I S Kaqlokoiki Wawaia/5-6-08:20 6 I P Kamahuehue Kamalo/5-5-02:5 37 I P Piopio Mapulehu/5-7-08:77 17 I P Puhaloa Manawai/5-6-04:29 6 I P Key: P = Private; S = State of Hawaii; and H Hawaiian Home Lands Source: Apple and Kikuchi 1975 The Governor's Task Force on Molokai Fishpond Restoration produced a recent report which recommended that the State of Hawaii assist to physically rebuild all of the State-owned Native Hawaiian fishponds on Molokai at the rate of two fishponds per year for a period of five years. (May 1993). c. Implications for the Sanctuary Fishponds are an important archaeological feature and a link with Hawaii' s past. A number of the fishponds judged by Apple and Kikuchi (1975) to be repairable are found in coastal areas adjacent to the Sanctuary. Restoration of exemplary fishponds and the development of a Sanctuary education program revolving around their history, construction, and use may be appropriate. Final Environmental Impact Statement Page 75 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Because restoration requires the types of activities that are regulated by a variety of existing agencies (i.e., discharging, depositing, alteration of the seabed), close coordination among the Sanctuary, Federal, State and local agencies, and Native Hawaiian interest groups, such as the Governor's Task Force on Moloka'i Fishpond Restoration, would be necessary. The Maui Sanctuary office is located adjacent to the 1.5 acre Loko kuapa fishpond, the largest remaining fishpond in South Maui. The Sanctuary has worked with local Native Hawaiians to produce a brochure describing the fishpond and how it was used by Native Hawaiians' The Sanctuary, at the request of the local community, began compiling information on how to renovate and restore the Loko kuapa fishpond. 3. Religious Practices and Artifacts The Hawaiian culture, conditioned by an animistic philosophy of life, viewed humankind as being in harmony with Nature. Hawaiians, according to Beckwith and Luornala (1970), "worshipped nature gods, and these gods entered to a greater or less extent into all the affairs of daily life." This study continues, "much that seems to us wildest fancy in Hawaiian story is to him [the Hawaiian] a sober statement of fact as he interprets it through the interrelations of gods with nature and with man." Just as the sea was an extension of the land, beliefs about the spirit world were an extension of the real world. Many of Hawaii's myths and legends relate to the sea. In the legend of Ai Kanaka, the priest Kamalo is wronged by the Moi of Mapulehu and seeks retribution from the shark god Kauhuhu. In turn, Kamalo is instructed to collect a number of red fish to prepare as an offering on the day that Kauhuhu comes to deal out punishment to the offender (Forbes 1907). In other stories, the Hawaiian deities are appeased by sacrifices of white fish, red fish, eels, or other sea creatures. One of the supreme Hawaiian deities, Ku, takes the form of Kuula or Kuula-Kai (Ku, or "abundance in the sea") as the special deity of fishermen (Beckwith and Luomala 1970). According to legend, Kuula was a man who resided in Hana, Maui, and possessed miraculous power in directing and controlling fish (Thnim 1907). Upon his death, )Cuula passed into. the realm of the deities and his son Aiai begins to build altars to honor his 'father (Beckwith and Luomala 1970; Titcomb 1972). These altars, known as koa, are found along all the major islands. Emory (1969) describes a koa on the island of Lanai: "A typical and authentic koa stands at water's edge on the sandy point of Honuaula. The irregular plaiform of stone and coral is six feet high, surmounted by low altar 6 by 12 feet, littered with shells, fish bones, and fresh crabs. At the back of the koa is an enclosure containing pine timbers suggestive of a recent shack One can see from Emory's description that this koa and some others are still in use today. An important religious practice connected with marine areas and fishing is the belief in the transmigration of the soul of a dead relative into certain species of fish (or other animals), or the animation of certain species by a departed one's soul. These ancestral personal deities, called aumakua, took the forms of sharks, eels, octopus, 'limpets, or other types of marine organisms (Titcomb 1972; Khil 1978; Kawaharada 1992). The aumakua were family guardians that were worshipped with daily prayer and by offerings of food in return for bringing good luck during fishing and other important undertakings Jitcomb 1972). Fishermen would not capture any species that were aumakua to their families. Violating the kapu against taking one's aumakua was thought to bring about severe punishment. Page 76 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part H: Description of the Affected Environment National Marine Sanctuary 4. Kahoolawe Island (Kohemalamalama 0 Kanaloa) Kahoolawe Island is extremely important from a traditional, cultural, and religious point of view to Native Hawaiians, and has been designated a State of Hawaii Island Cultural Reserve as well as a National Archeological District. A diverse array of cultural, archeological, historical and environmental resources provide opportunity for greater scientific and cultural learning as well as practicing traditional and contemporary Native Hawaiian culture. The importance of Kahoolawe is best surnmarized in the Kahoolawe Island Conveyance Commission's 1993 Final Report to. Congress (KICC 1993), which states, "Kahoolawe serves as a cultural resource, particularly for Native Hawaiians, because it links past traditions with contemporary practices. It is.a place where cultural practices, including religious ceremonies, continue to be observed and where legends and traditions continue to survive, often in place names and the oral traditions relating to the island." Much of what is known about the culture and traditions of Kahoolawe was recorded in an oral tradition called mele. Mele included songs, chants, and genealogical recitations (Aluli and MacGregor, 1991). However, archeological and historical reports also reveal past uses and provide insight into the culture. Kahoolawe Island contains the remains of numerous fishing shrines (ko'as) and several temples (heiaus), and stone alters (ku'ula) used to propitiate the fish deities and assure good catches within its coastal area. These terrestrial artifacts have traditionally been used as land markers to define the areal boundary of an individual's fishing grounds, or the boundary within which certain species of fish could be caught. Ongoing archeological evaluations are studying the nature of these land-based artifacts, as they relate to and have been used in the traditional Hawaiian land and sea management practice of ahupua'a. While the terTestrial sites are not included in the Sanctuary . boundary, some of the archeological sites are located in underwater caves. There have been reports of "resource raiding" and looting by divers. . Cultural, historical, and archeological sites have not been identified at this time as Sanctuary resources. However, any increased surveillance or enforcement as part of Sanctuary management initiative could assist the KIRC in minimizing destructive activities. The NMSA requires the Secretary of Commerce, in consultation with the State of Hawaii, to make an annual certification as to whether the waters within 3 nautical miles of Kahoolawe are suitable for inclusion in the Sanctuary. In December 1995, the Secretary, in close coordination with the State of Hawaii and the KIRC, certified that these waters are not suitable for inclusion in the Sanctuary. These waters contain unexploded ordnance from Navy activities that pose a safety risk to users of the area. As part of the 1996 NMSA reauthorization, the annual certification requirement by the Secretary was removed and replaced by a process that would allow the State of Hawaii and KIRC to nominate the waters around Kahoolawe for possible inclusion in the Sanctuary. NOAA would have to determine if these waters are suitable for inclusion and then initiate the Sanctuary designation process, including public meetings and governor- review, before including these waters in the Sanctuary. a. Kahoolawe Island Reserve AaWi.Session Laws:.of Hawaii (SLH),1993 established,the Kahoolawe, Island. Reserve, bkaddih :.aapter,6Kt6Ah Miv@iifftpv 'Statute@: (HRS)@i-.:':Aict134&provides. for the, transfer of 9 '- . 11 1 1, ; - I ,ve @:sovereip@ .-atft: waiiarrentityk.u re gnition by the Uriited States therislaridleser tothe i pon@it& co and,the,S e,of'Hawai7i. Ma'ra of, th6, re gement, serve s overseen. by a seven-member commission. The reserve@ is tobeused exclusively@ forthe preservation and 'practice of all rights customarily and. traditionally exercised by Native Hawaiians for cultural, spiritual and subsistence purposes; preservation and protection of its archeological, historical and environmental resources; rehabilitation, revegetation, habitat restoration, and preservation; and education. Final Environmental Impact Statement Page 77 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Due to imminent peril to public health and safety, based on the presence of unexploded ordnance and hazardous material on the islands and in surrounding waters, the Board of Land and Natural Resources (BLNR) and the Kahoolawe Island Reserve Commission (KIRC)adopted emergency rules, effective May 6, 1994, to September 6, 1994, ford the Kahoolawe Island Reserve [section 91-3(b), HRS, and section 13-1-35, Hawaii Administrative Rules (HAR)]. The U.S. Navy has used the island as a military target since 1941 and has an established danger zone which includes the waters extending two miles from the shoreline. Access into the area is restricted in recognition of the substantial amount of unexploded and hazardous materials present on the island and in the adjacent waters (CFR 763 and CFR 334.1340). Title X (Public Law 103-139, 107 STAT. 1418, 1479, 1484)authorized the conveyance and return of the island to the state and required the U.S. Navy to remove unexploded ordinance and environmentally restore the island. On May 7, 1994, the island of Kahoolawe was conveyed to the State of Hawai`I from the U.S. Navy THe imminent threat to public health and safety will continue to exist until the reserve has been cleared of unexploded ordinance and hazardous waste ON August 18, 1994, the Hawaii Administrative Rules were amended to include formal rules for the Kahoolawe Island Reserve (HAR, Title 13, Subtitle 12, Chapter 260). The rules divided the reserve into two zones: zone A includes all of the upland areas, including the waters from the shoreline to a depth of 20 fathoms, and zone B includes the waters from a depth of 20 fathoms out to 2 miles from the shoreline. The following uses are prohibited within the reserve: No person shall enter the reserve for any purpose, or operate, leave unattended, beach, park, archor, or moor vessels or any other water craft, or use the reserve except in cases of emergency or as provided in this chapter. No person shall remove or attempt to remove any aquatic life, mineral, or vegetation from the reserve, except as provided in this chapter. No person shall engage in any activity which shall include but not be limited to: fishing from shore, fishing by trolling or drifting, bottom fishing, spear fishing, net or trap fishing, diving surfing, swimming, snorkeling, and walking in shallow waters within the reserve, except as specifically provided. No commercial activities shall be allowed within the reserve, except for vessels transiting the island reserve that are engaged in intra-state, inter-state, or foreign trade. The following uses are permitted within the reserve: Fishing by trolling, where the vessel remains underway at all times, shall be allowed within Zone B on two weekends per month, as noticed by publication in the Local Notice to Mariners issued by Commander Fourteenth Coast Guard District. Escorted access to the reserve for the purpose of the following uses may be permitted by written authorization of KIRC, and as necessary, subject to final approval by the U.S. Navy: 1) Customary and traditional Native Hawaiian cultural, spiritual, and subsistence use in areas deemed safe; 2) Activities for the preservation, protection, and restoration of cultural, archaeological, and historical sites; 3) Rehavilitation, revegetation, habitat restoration, and preservation; and 4) Educational activities. There is a maximum penalty of $1,000 ford each offense, including forfeiture of license and slips Source: Fact Sheet on Status of Kahoolawe-Kahoolawe Island Reserve Commission, June 1994 Page 78 Final Environmental Impact Statement and Management Plan Page 78 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary 5. Submerged Lands The establishment of the Sanctuary in no way conveys,. or intends to convey, to NOAA any title or ownership of Hawaii's submerged lands. These lands, including those known as ceded lands, continue to be held in trust by the State of Hawaii. The Sanctuary will exist as a co-steward of the Sanctuary and its resources. Should the status of the submerged lands change at some time in the future (i.e., lands are conveyed to a sovereign Hawaiian nation), the Sanctuary will work with the appropriate entities to redefine its role if necessary. 6. Traditional Native Hawaiian Uses Section 2306 of the HINMSA directs NOAA to develop a Sanctuary Management Plan that, among others, "facilitates all public and private uses of the Sanctuary (including uses of Hawaiian natives customarily and traditionally exercised for subsistence, cultural, and religious purposes) consistent with the primary objective of the protection of humpback whales and their habitat." NOAA has not promulgated any regulations that would independently prohibit, restrict or regulate fishing, subsistence gatli6ring or any other access to the water or the Sanctuary resources. NOAA will work with the Native Hawaiian community to develop joint education and research projects that facilities their use of the marine environment and increases the general public's understanding of their practices and culture. 7. Shipwrecks The Hawaii Maritime Center has a fist of over a hundred vessels which have been shipwrecked since 1796. Some 'of the ships have been salvaged or floated and a complete inventory of locations is not known. The number of historical shipwrecks that lie within the Sanctuary boundary is presently not known. At this time, shipwrecks are not considered as Sanctuary resources, but may be'added under the process for identifying "other resources of national significance" through the designation process outlined in the Management Plan. Under the Abandoned Shipwreck Act (ASA) of 1988, (P.L. 100-298) the State Historic Preservation Officer (SHPO) is given the responsibility to inventory and manage historic resources such as shipwrecks. Likewise, under the National Historic Preservation Act of 1966 (NHPA), Federal agencies must inventory, assess, and nominate to the National Register of Historic Places any historic/archeological properties on public lands or, in the case of Hawaiian waters, on submerged or bottom lands. In summary, the marine waters around the Hawaiian Islands contain a variety of cultural (settlement patterns, religious practices, resource management practices) and historical (archeological sites, oral traditions, fishponds, shipwrecks) resources unique to the Hawaiian Islands. Inclusion of these resources in the Sanctuary would heighten public and agency awareness of the importance of these resources and expand the scope of the Sanctuary's management and resource protection' programs ftesearch, long-term monitoring, education, outreach, cultural awareness, and enforcement). The Final EIS/MP summarizes some of these cultural and historical resources. More detailed information about these resources, and consultation with Native Hawaiian groups and the various Federal, State and County management regimes is needed before the Sanctuary can proceed with its mandate to identify other resources for possible inclusion in the sanctuary. Part E.6. of the Management Plan identifies a process to include the public and the SAC in assisting the Sanctuary with this assessment. Final Environmental Impact Statement Page 79 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary D. HUMAN ENVIRONMENT AND ACTWITIES This section provides information on the users and uses of the marine environment of Hawaii, and the social and economic context for Sanctuary planning and management. Trends indicate continued growth in population, tourism, and uses of the marine environment. Shoreline growth and development will continue for the most part with some limitations and control required by county master plans and ordinances. Hawaii's infrastructure (water, sewer, coastal highways, etc.) will experience increased demand for electricity, oil and other sources of energy, which often require ocean/shordline location. Changes in agricultural uses along with shifts in land use patterns will provide new challenges for Hawaii; sediments. escaping agricultural lands into streams and the ocean may be substituted by urban runoff. New technologies in recreational vessels creating faster boats, and personal submersibles and increased boating density will place new strains on the whale population, especially cow/calf pairs seeking some seclusion during the critical first few months after birth. Heavy use of some famous areas such as Hanauma Bay and Molokini Shoals will increase the demand for new and little used areas bringing human and whale use into more potential conflict. These challenges, and as yet unforeseen challenges, will require the Sanctuary to be flexible in meeting the challenge of protection as well as facilitating uses of the ocean environment. 1. -Socio-Demo=Rhic Profile a. Population and Ethnic Makeup The estimated resident population of the State of Hawaii as of 1992 was 1, 159,600. Population breakdown by county is listed in Table H-9. Approximately 75 percent of the population resides on the island of Oahu in the City and County of Honolulu; 11 percent in the County of Hawaii; 9 percent in Maui County (including the islands of Maui,. Molokai and Lanai); and 5 percent in Kauai County (including Niihau). According to the 1990 Census, 89 percent of Hawaii's population lives in urban areas. However, there is considerable variation by county, ranging from 96.4 percent urban in Honolulu to 55.2 percent in Kauai. TABLE 11-9: Population and Percent Urban Resident Percent Population Urban State 1,159,600 89 Honolulu 864,800 96.4 Maui 109,000 77.90 Hawaii 130,500 60.8 Kauai 55,300 55.2 ource: Hawaii State Data Too'k,1992 Page 90 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary Figure 11-17 shows how the population has grown since the 1950's. Hawaii currently experiences a population growth rate of two percent. Resident Population of Islands 1950 W 1992 How" mad sm.000 0 KSUW 400.000 2W .00 19" im 1979 ien Me Isla Figure 11-17 (DBEDT 1993) There is considerable ethnic variety, with no single group in the majority, as is shown in Table U-10. TABLE II-10: Ethnic Diversity, Percentage by County State Honolulu Maui Hawaii Kauai Caucasian 24.1 25.1 21.6 22.2 18.4 Japanese 20.4 21 17.4 19.3 18.4 Mixed, Part- 18 15.7 24 26.5 24.3 Hawaiian Mixed, Non- 17.5 17.4 17 18.2 19 Hawaiian Filipino 11.3 10.6 15.8 10.2 17.3 Chinese 4.7 6 0.8 0.8 0.6 Black 1.5 1.9 0.2 0.3 0.2 Korean 1.1 1.3 0.7 0.3 0.4 Hawaiian 0.8 63 2.3 1.6 1 Puerto Rican 0.3 0.2 0.6 1 0.4 0.2 Samoan 0.3 0.4 0.2 0.10 Source: Hawaii State Data Book, 1993 update. b. Labor Force The civilian labor force averaged 568,000 in 1992 and Statewide unemployment was 4.2 percent. The unemployment rate varied from a low of 3.2 percent on Honolulu to 8.4 percent on Kauai, reflecting the economic dislocation resulting from Hurricane Iniki (1992). Ocean industries alone employed 18,000 persons and generated $2.9 biWon in revenues in 1992 (MacDonald and Deese, 1994). The industry is forecast to grow at 4.5 percent per year over 1992-1998, generating annual revenues of $3.8 billion and employment of about 20,250 in 1998 (MacDonald et al, 1995). Table H- I I shows that Hawaii's economy is dominated by the service sector: 26.7 percent of the jobs are in the hotels and other services industry; 23.0 percent are in the wholesale and retail trade industry; 18.4 percent are in local, State, and Federal government; and 6.4 percent are in the Final Environmental Impact Statement Page 81 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary finance, insurance, and real estate industries. Transportation, communication and utilities provide 7.3 percent of the jobs, and the nonagricultural self-employed make up 6.6 percent of the jobs. Construction provides 5.7 percent of the jobs, 'manufacturing provides 3.5 percent and agriculture provides 2.3 percent. TABLE 11-11: Job Count by Industry, by County State Honolulu Maui Hawaii Kauai Construction 33,500 25,350 3,200 3,700 1,300 Manufacturing 20,400. 15,200 2,150 2,250 800 Transportation 32,800 27,300 NS NS N S Communication 10,600 51,850 NS NS N S and Utilities Trade 136,350 102,150 14,050 13,050 7,150 Finance, Real Estate 37,500 30,550 3,250 2,400 1,400 and Insurance Hotels 40,600 19,950 9,500 6,600 4,550 Other Services 117,700 96,800 8,600 8,200 4,100 Federal Government 34,000 32,400 450 800 350 State &'Local 75,000 57,600 5,900 3,200 Government Agriculture 13,700 3,150 3,050 6,150 1,450 Non-Agriculture, 39,000 26,600 4,000 6,050 2,400 self employed Total 591,250 445,100 57,200 60,050 29,050 NS = Not Shown Separately Source: Hawaii State Data Book, 1992 2. Human Activities a. Fishing Fishing has always been an important economic and recreational activity in Hawaii, with social and cultural implications outweighing economic impacts. In pre-contact times Hawaiians were adept at exploiting nearshore and intensive use of the ocean for food, tools and religious offerings. Subsequent influxes of immigrants have continued the intensive use of the ocean for food and recreation. The 1992 estimated total consumption of fish in Hawaii was 70.5 million pounds (mlbs), of which 30.4 mlbs. with an estimated value of $62 million were caught commercially; 29.9 mlbs. with a market value of $70 million were- net imports; and 10.2 mlbs. were caught by recreational fishers (MacDonald and Deese, 1994). Reported commercial landings have increased over the past few years. Almost 13.5 mlbs. were landed in 1989, 15.4 mlbs. in 1990, and 22.3 mlbs. in 1991. This increase has, to a large degree, been driven by the growth in the longline fishery industry. In 1992 an estimated 70 percent of the total commercial landings were from the longline fleet, which is restricted to fish located more than 50 to 75 miles from shore. i. Commercial Fishing it has been estimated that 13 percent (1.4 mlbs) of the 1980-1990 mean annual commercial landings, 10.8 m1bs., were caught "inshore" (within 3 miles of the Main Hawaiian Islands); 66 percent (7.2 mlbs.) were caught "nearshore" (between 3 to 20 miles); and the rest, 21 percent (2.2 mlbs.), were caught beyond 20 miles. The inshore commercial landings are dominated by the catch of Akule (29 percent), Opelu (18 percent) and Ahi (10 percent). Page 82 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary Table 11-12 lists the monthly inshore catch for the fiscal year 1992-93 by island and county. The first four months of whale season (November '92 - February '93) were low catch months; however the last two months, March and April '93, were the third and fourth best months of the year. Honolulu leads the counties with the largest annual catch. The smallest annual catch was in Kauai's waters despite the fact that Kauai had the top three catch months (March, April & May, 1993). Table 11- 13 lists the number of fishers reporting catches by month and by county. TABLE 11-12: Commercial Marine Life Landed by Month/Area, Fiscal Year 1992-93 (lbs.) 6/92 8/92 9/92 10/92 11/92 12/92 1/93 2/93 3/93 4/93 5/93 6/93 Total Kauai 12849 26910 5344 5573 2412 5281 9862 6322 92288 65672 75619 41831 349913 Nimau NA NA 874 NA NA NA NA NA 288 2529 NA 2048 5739 Kauai 12849 26910 6218 5573 2414 5281 9862 6322 92576 68151 75619 43879 355652 Couny* Oahu* 46256 43857 4422O 49714 47699 46327 35648 42044 33026 40889 44683 40279 513872 Penguin 5127 3253 3637 7350 6119 7463 10464 7935 4365 7455 05921 9923 89012 Bark Molokai 2555 1154 1973 1671 1949 3497 3709 4390 1208 2547 1811 2680 29144 Lanni 1430 1787 6201 1972 590 l089 1316 2269 1199 1681 2250 768 22552 Maui 19907 16585 12230 8212 3960 5088 6510 11501 3633 3649 11390 27881 13057 Channel 6456 6816 7540 13045 7348 11736 8095 7561 6183 4467 6208 7011 92462 Kahoolawe 4062 1290 607 1644 180 182 1499 755 1302 2368 1086 1509 16384 Maui 39537 30885 32189 33894 204146 29055 31593 34411 17890 20367 38662 49772 380101 County* Hawaii* 45674 61820 43558 54943 27545 27058 18440 24322 35185 28494 34258 68494 469791 TOTAL 144316 163202 12685 144124 97802 107721 95543 107099 178677 159101 193222 202424 1719416 I Note: County numbers are subtotals of island numbers. Source: Personal Communication, Hawaii Department of Land and Natural Resources (DLNR), Division of Aquatic Resources (DAR), March, 1994. TABLE II-13: Commercial Fishers by Month and Area, Fiscal Year 1992-93 6/92 8/92 9/92 11/92 12/92 1/93 2/93 3/93 4/93 5/93 6/93 Total Kaui 58 42 26 17 22 21 38 40 36 46 60 45 Niihau NA NA 5 NA NA NA NA NA 4 11 NA 12 Kauai Co 58 42 31 17 22 21 38 40 40 57 NA 57 Oahu 125 134 167 187 160 126 114 132 113 115 123 101 Penquin B. 21 15 22 34 29 31 38 44 26 45 47 35 Molikai 21 10 19 18 17 15 16 18 5 20 20 22 Lanai 18 18 18 17 8 12 15 14 16 12 16 14 Maui 50 44 70 61 48 36 39 61 50 54 63 53 Channel 37 40 49 62 44 56 50 43 41 38 40 43 Kahoolawe 18 11 8 18 6 4 15 16 16 12 13 12 Maui Co 165 138 186 210 152 154 173 196 154 181 199 179 Hawaii 142 148 141 173 130 137 117 123 137 135 146 150 88 528 487 TOTAL 490 462 525 587 464 438 442 491 444 488 528 487 Source:DLNR-DAR, March, 1994 Final Environmental Impact Statement Page 83 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary The commercial fishing catch from Maui represents nearly 3 percent of the State total. Molokai and Lanai each contribute 0.25 percent and 0.11 percent, respectively (Table 11-14). Although the catch from these islands is small compared to that of the rest of the State, these fisheries are an important economic activity for resident fishers. TABLE 11-14: 1993 Landings, Sale, and Value of the Commercial Fishing Catch Island Lbs. landed (% of State total) Lbs. sold Value Hawaii 3,666,169 (14%) 3,516,948 $6,002,218 Maui 435,115 (2%) 342,106 $894,581 Lanai 26,825 (0.1%) 23,339 $56,630 Molokai 52,001 (0.2%) 41,660 $94,066 Oahu 20,232,589 (81%) 19,926,382 $52,272,031 Kauai and Niihau 517,933 (2%) 439,194 $1,002,495 Total 24,930,632(100%) 24,289,689 $60,322,0211 Source: DBEDT State of Hawaii 1994. Penguin Bank, located west of Molokai, is noted for its fishery productivity. Fishers from Oahu as well as Maui County use Penguin Bank. Catch reports from the Penguin Bank area for the calendar years 1991 and 1992 are shown in Table H- 15. These data indicate that 202,144 lbs. of all fish were landed in 1991, with a total value of $641,265. In 1992, 157,556 lbs. of all fish were landed from the Penguin Bank catchment area with a total value of $500,010. The data below show that pelagics, including tunas, billfishes, mahirnahi@ ono, and others comprise about one-half the catch. Benthic fish, including deep botton-lish, accounted for about 40 percent of the@ total catch. TABLE 11-15: Marine Life Caught From Penguin Bank Catchment Area by Commercial Fishermen for Calendar Years 1991-92 CALENDAR YEAR 1991 CALENDAR YEAR 1992 FISHERIES lbs. landed lbs. sold value ($) lbs. landed lbs. sold value Pelagic 99,351 93,966 -160,234 70,569 .66,097 113,809 Benthic 78,458 75,402 343,352 67,047 64,324 285,685 Coastal/Pel 176 174 341 266 183 346 Reef 1,897 1,663 3,990 1,015 789 1,912 Other 22,262 22,057 133,348 18,659 18,659 98,258 Total 202,144 193,262 641,265 157,556 150,05T 500,01LJ Source: DLNR 1993. In its 1992 Annual Report on Bonomfish and Seamount Groundfish Fisheries of the Western Pacific Region, the Western Pacific Regional Fishery Management Council (WESPAC 1993) notes that for commercial fishing in the Penguin Bank, Maui/Molokai/Lanai bottom fishing grounds, catch per unit effort over the past several years remains highly variable. A comparison of recent data to information from the 1940s and 19.50s indicates a decline in catch per unit effort for individual species. This decline is least apparent.in opakapaka and most apparent in ehu (WPRFMC 1993).. Data on State-wide fish catches by gear type indicate that after longlining (which is prohibited within 50 miles of the Main Hawaiian Islands), the most effective methods are handlining, trolling, aku pole and line, and net (see Table H- 16). Page 84 Final Enviro mental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary TABLE 11-16: Fishing Methods, Landings, Sale, and Value of Catch From Commercial Fishing for 1991 (6/90-6/91) for the Hawaiian Islands Methods lbs. landed lbs. sold value($) Longline 14,150,055 13,872,919 36,316,227 Handline 2,689,274 2,577,860 6,196,570 Trolling 2,936,552 2,516,372 4,43-1,943 aku pole and line 1,274,451 1,274,385 1,710,584 Net 758,189 707,223 1,171,927 Trap 331,914 328,481 3,317,380 Other 101,212 81,280 208,302 Source: DLNR 1991. Nets are most often used along reef faces, on the open coast, and in embayments as both fixed gillnets and surround nets. Some bullpen nets are used in areas that are flat and open. There are no trawl fisheries in Hawaii. Table 11-17 shows an example of the types of fisheries, gear types used, and how vessels are used, for example off the Kona Coast of the Big Island (Tanaka, 1994, pers. communication). Hawaii has a statewide system'of Fish Aggregating Devices (FADs) located for the most part between the 100- and 1,000-fathom isobath. FAD-associated fishing accounts for more than a million lbs. of fish (ahi, aku, au or marlin, mahimahi, and ono [Department of Land and Natural Resources (DLNR), Hawaii Fisheries Plan 1990-1995]. The FAD is composed of spheres attached by a chain and mooring line to concrete block anchors. TABLE 11-17: Fishing Vessel Activities Within Preferred Boundary on the Big Island (Recreational, Subsistence, Commercial) - FISHERY Target Species Gear Types Vessel Usage Akule Akule Handline, Net Drift, Sea Anchor Bottom Fish Lehi, Opakapaka, Onaga, Handline, Electric Drift, Anchor etc. Reel Crab Kona Crab Net Drop Off, Pick Up Lobster Spiny Lobster Traps, Net Drop Off, Pick Up Nehu (Baitfish) Nehu Net. Surround, Pick Up Opelu Opelu Handline, Net Drift, Sea Anchor Palu-Ahi Ahi, Aku Handline, Rod & Reel Drift, Sea Anchor, Anchor ' Reef Fishing Menpachi, Aweoweo, Handline Rod & Reel Drift, Anchor, Slow Moana, etc. Trou Spearfishing Same as above Spear, Net Anchor Trolling Ahi, Aku, Mahimahi, Ono Handline, Rod & Reel Medium Speed Troll Tropical Reef Various Reef Fish Traps, Net Anchor Fish t -1 Source: L. Tanaka, Big Island fishe an,.pers. communication, April 1994 The State of Hawaii requires a fishing license only for commercial fishers; those who catch -and sell fish. In 1990, DLNR-Division of Aquatic Resources (DAR) issued 3,532 licenses: 3223 to residents, 309 to non-residents, and 23 permits for licenses to fish in the Northwestern Hawaiian Islands. Ithas been estimated that of the 3,223 resident licenses, 140 to 290 are for the Final Environmental impact Statement Page 85 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary 150 large vessels and fewer than 500 are for full-time, small boat (under 5 net tons) fishers. The rest are part-time fishers, and the number of recreational fishers is several times larger. ii. Recreational Fishing Surveys indicate that 19-35 percent of Hawaiian residents fish, and 74 percent of the estimated 12,690 -"Personal boats" were engaged in fishing as their primary activity. A 1980 survey estimated that there were 2.1 million fishing trips taken by 235,200 residents and 82,200 visitors: 620,000 trips were in private bo@ts, 88,000 in charter boats, and the remainder, 1,392,000, were shoreside fishing trips. A 1984 study estimated that in 1982 73,780 passenger- trips were made by the charter boat industry, capturing 2.2 million pounds of fish and $8.1 million in total revenue. Fishing takes place from boats that target a variety of bottomfish and pelagic fish. Along various points of the'shoreline of Maui, Molokai, and Lanai, people fish,primarily for recreational and possibly subsistence purposes. Because there is no licensing program or any requirements to report catch from recreational fishing, data are limited to a small number of creel surveys of shore fishers. Surveys of this type were conducted on Oahu, Kau4 and Hawaii and may provide the basis in the future for estimates of recreational fish catch (Smith in press). Traditional fishing techniques, such as throw net for reef fish and lift net for opelu, are used in some areas of the Sanctuary. iii. Charterboat Fishing Charterboat fishing is -one of the oldest sectors of the ocean recreation industry. Before the Second World War, Kona was known as one of the world's premier sport fishing destinations. After the war, charter fishing out of Kewalo B 'asin became a popular attraction for tourists in' Waikiki. Kona remains the primary charterboat locale. In 1990, 150 active charter vessels generated an estimated gross revenue of $16.9 million from 77,297 customers (See Table H- 18). TABLE 11-18: Charterboat Fishing-Revenues and Passengers, by County, 1990. Oahu Maui Hawaii Kauai Total Vessels 28 17 97 8 150 Revenues $1.7 million $1.2 million $13.3 million $0.7 million $16.9 million Passengers 23.9 13.5 32.8 7.1 77.3 thousand Source: Markrich, M., March 1993. iv. Aquarium Fish Industry Hawaii also has an active Aquarium fish industry. The number of aquarium fish collection permits has increased 2.5 times over the last decade. The precise number of permitees who are full-time collectors is not known. The 1989-1990 catch report summary indicated a Statewide gross revenue of $642,000 from the sale of collected fish and invertebrates (DLNR-DAR, 1993). v. Fishponds, and Traditional Uses The invention of fishponds in Hawaii during the thirteenth or fourteenth century was a unique achievement in Polynesia. It allowed the Hawaiians to move beyond the mere harvesting of fish into fish production and husbandry. Fishponds were found on all the major islands, but the most suitable locations were Kaneohe Bay and Pearl Harbor on Oahu and the southern coastline of Molokai. Estimates indicate that the fishponds may have produced as much as two million pounds of fish. The primary species of fish raised in the fishponds were awa or milkfish, and 'ama'ama Page 86 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary or mullet. A 1987 report stated that there were seven ponds in use for commercial and subsistence purposes. (see discussion at H.D.2., above for additional information.) b. Commercial Shipping i. Economic Contribution Given its island geography, sea and air transportation have special importance. in Hawaii's economy. Approximately 80 percent of the goods consumed in Hawaii are imported from overseas and nearly 98 percent of these enter the State via container ships through commercial harbors. The only alternative to ocean transport is to ship by air. Air transport is so cost prohibitive only a few wealthy people could afford to live in Hawaii if all goods are brought in by air transport. Ocean transport is forecast to grow 4.5 percent per year, generating an annual revenue of $2 billion in 1998 and employing 5,894. (MacDonald, Deese, Corbin, and' Clark, State department of Business, Economic Development and Tourism, "New Projections for Hawaii's Ocean Industries: A Strategic Orientation"). ii. Vessel Traffic In 1992, 2,104 overseas vessels and 3,207 inter-island vessels arrived at Honolulu Harbor. (Approximately six overseas vessels and nine interstate vessels per day). Table 11- 19 gives the level of traffic in and out of Honolulu Harbor and to and from the neighbor islands. TABLE 11-19: Overseas and Inter-island Shipping, 1989, Freight and Passenger Traffic for Specified Harbors, 1989 [mst million short tons] Overseas Cargo IN: 10.4 mst OUT: 1.7 mst 7 -77-777 77777 Inter-island Cargo IN: 5.7 mst 0 5.8 mst Freight Passengers Hilo 1.6 Inst 9,082 Kawaihae 0.7 mst Kahului 2.3 mst 9,083 Honolulu 10.4 mst 626,671 Barber's Point 7.4 mst Nawiliwili 1.0 mst 9,082 Source: Hawaii State Ma Book, 199r, T'ables 554 and 555. iii. Hawaii Ports and Harbors The State's commercial harbor system consists of seven deep-draft and two medium-draft harbors located on five islands. Honolulu is the primary port, with over 28,000 linear feet of pier (about 70 percent of the system's pier space), and serves as the main entry point for imported goods, the main transshipment point for the neighbor islands, and the main exit point for Hawaii's exports. The other harbors are: Barbers Point and Kewalo, also on Oahu; Hilo and Kawaihae on the east and west shore of the island of Hawaii; Kahului on the north shore of Maui; Kaunakakai Final Environmental Impact Statement Page 87 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary on the south shore of Molokai; and Nawiliwili and Port Allen on the east and south shore of Kauai. In Addition, there is a private harbor on the west shore of Lanai. Pearl Harbor Naval Base (closed to commercial traffic) is six nautical miles west of Honolulu Harbor. Two off-shore mooring berths, which serve the oil refineries in Campbell Industrial Park, are located off Barbers Point. c. Tourism The visitor industry dominates the Hawaiian economy. In 1991 Hawaii hosted 6.87 million visitors, down slightly from the 1990 peak of 6.97 inillion (Hawaii State Data Book, 1992). The numbers of visitors and expenditures can be seen it Table U-20. Accommodations for visitors is summarized in Table 11-21. Visitor-related expenditures in 1991 were $9,920,902, which generated: direct, indirect and induced sales of $19,376 million; total household income of $6,543 million; 250,900 jobs, and State and county tax revenues of $1,219 million. By comparison, the overall estimated 1991 Gross State Product was $28,616 million, State personal income was $24,045 million, the total job count was 591,250, and total State and county revenues were $3,334 million. Oahu is the primary tourist destination, followed by Maui County, Hawaii and Kauai. TABLE 11-20: Visitor Count and Expen itures, by County (1991) ............ .. Total Visitor Average Visitor Total Visitor Expenditures per Arrivals Visitor per day Count Expenditure State 157,590 6,873,890 $9,920,902 $174 Honolulu 79,700 5,048,550 $5,353,171 $183 Maui 40,240 2,322,060 $2,225,228 $152 Hawaii 18,630 .1,188,630 $1,090.603 $161 Kauai 19,020 1,267,620 $1,104,894 $158 Source: Hawaii State Data Book, 1992, Tables 193, 194 and 209. TABLE 11-21: Visitor Accommodations by Type, and by County (1991) Total Hotels Condos State 73,779 51,134 22,645 Honolulu. 37,279 29,146 8,133 (Waikiki) 32,539 25,114 7,425 Maui 9,552 10,061 9,491 Hawaii 9,170 6,836 2,334 Kauai 7,778 5,091 2,687 Source: Hawaii State Data Book, 1992, Table 680. d. Ocean Recreation As was previously discussed, Hawaii's economy is heavily dependent on tourism. One important aspect of Hawaii's appeal to visitors is the wide range of ocean recreation opportunities. In 1990 the ocean recreation industry generated an estimated revenue of $509,million and created 5,788 jobs. (See Table 11-22) In 1992, the ocean recreation industry increased its estimated revenue to $560 million while providing a slightly higher number of jobs, (5,846). (MacDonald and Deese, 1994). Overall, the growth of the ocean recreation industry during the last decade has been dramatic, providing a boom to Hawaii's economy but also resulting in numerous problems requiring directed management. Page 88 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary TABLE 11-22: Ocean Recreation Revenues and EMPI yment by Sub-sector, 1990 Revenues Jobs Total 574.6 5,771 --------- ------- ------- Tour boats and Cruise Ships 225.3 3,204 Recreational fishing 99.0 na Surf Shops and manufacture 93.3 692 -Personal boating 62.4 779 Competitive events 36.7 80 Dive shop 27.5 617 Charter boat fishing 16.9 203 Billfish tournaments 3.9 na Jet skiing 4.5 93 Parasailing 3.5 70 Kayaking .1.6 1 33 Source: MacDonald and Markrich, 1992, Markrich, 1993. i. Recreational Activities 1) Boating The State has 19 small boat harbors and 50 boat launching ramps which cater to recreational public and small commercial ocean recreation operators. As of December 31, 1991 there were 5,731 individual small craft mooring berths: 4,643 catwalks and piers; 510 other moorings; and 578 offshore moorings (See Table U-23). There is considerable excess demand for these facilities; 2,400 valid applications for moorage are on file at DLNR, as of 1994. TABEE 11-23: Small Craft Mooring Facilities, by Islands, 1991-92 Catwalks and Other Offshore Total Applications Piers Moorings Moorings On File Honolulu SBH 1,287 181 318 1,786 1,600 Other 2,948 0 82 3,030 NA .Maui 75 173 87 335 245 Hawaii 251 120 91 462 480 Kauai 82 36 0 118 75 -------- ------- ----- ----- ------- ------- State 4,643 510 578 5,731 2,400 A = Not Availa le SBH Small Boat Harbors Source: Small Craft Mooring Facilities Utilization Report, Quarter Ending: December 31, 1993, DLNR-Division of Boating and Ocean Recreation (DOBOR) The DLNR-Division of Boating and Ocean Recreation (DOBOR) maintains a register of all documented vessels in the State. As of December 31, 1993 there were 13,832 vessels registered, of which 12,175 were classified as pleasure boats. There are appr .oximately 1,800 vessels documented by the USCG (see Table 11-24). It has been estimated that 75 percent of the pleasure boats engage in fishing as their primary activity. Final Environmental Impact Statement Page 89 and Management Plan Part H: Description of the Affected, Environment Hawaiian fslands Humpback Whale National Marine Sanctuary TABLE 11-24: State-Registeri!d Vessels, by County Moored Moored -and on Water % on L % Total % Honolulu 1,918 13.9 6,883 49.8 8,801 63.6 Maui 175 1.3 .1,389 10.0 1,564 11.3 Hawaii' 161 1.2 1 1,833 1 13.3 1,994 1 14.4 Kauai 82 0.6. 1 1,391 10.1 1,473 10.7 State 2,336 16.9 1 11,496 83.1 M-13,832 100.0 Source: Report of Docum7nntmeTV=ssel Registration, for Periodfi-orn: January 1, 1993 to 7ecember 31,1993, DLNR-DOBOR 2) S urfing Surfing played an important part in ancient Hawaiian culture and has become a very popular activity in Hawaii and around the world. There are several types of surfing done around Hawaii such as longboarding, shortboarding, bodyboarding, and windsurfing. Maui has developed a reputation for superb swell conditions with clean breaks and fast waves. These conditions favor those just starting to learn as well as the more experienced riders. Surfers can choose from a variety of locations and conditions. The more extreme sites are at the outer reef where waves can reach up to 40 feet. The meek at heart can choose locations where swells vary from 2- 10 feet. Best of all, surfing season is all year round. There are 1,600 surfing locations in Hawaii located on the various islands. It is estimated that 23,000 people surf on a typical Nusy day (Hawaii Ocean and Marine Resources Council 199 1). As a result of surfing being a large recreational activity, a substantial amount of revenue is brought in through service to -surfers. Surf shops in 1989 created $15.8 million in revenues, which was a 12 percent growth from the last period, and employed 251 people (MacDonald. and Deese 1989). 3) Swimming The natural beauty of the beaches are considered one of the most important factors in attracting tourism. The Hawaiian Islands have about 310 miles of sandy beach available for swimming and other activity. On a typical busy day 170,000 people are@ using the beaches for swimming or sunbathing (Hawaii Ocean and Marine Resources Council 1991). In 1988 tourism was estimated to bring in $9.2 billion, and much of that was due to ocean and beach recreation (Hawaii Ocean and Marine Resources Council). ii. Commercial Activities 1) Tour Boats The tour boat industry includes a large and diverse collection of activities, including dinner or lunch cruises, snorkel excursions, glass bottom boat trips, submarine trips and ferry boat trips. Whale watching is often combined with other activities during the season. In 1990 the combined estimated revenues for the almost 200 tour boats were $91.5 million; the total estimated employment was 1,944 persons; ano the estimated number of passengers was 2.6 million. (See Table 11-25) Page 90 Final Environmental Impact StatemenT and Management Plan Hawaiian Islands Humpback Whale Part U: Description of the Affected Environment National Marine Sanctuary TABLE 11-25: Estimated Tour Boat Revenue by County, 1990 Oahu Maui Hawaii Kauai Total Companies 1 '30 12 14 72 Vessels 37 63 19 79 198 'Employees 974 427 203 340 1,944 Revenues 1 $42.1 1 $299 $7.2 $12.3 1 $91*5 million Passengers 1.45 0 - 1@7 0.16 0.40 1 2.61 million Source: Markrich, 1993. Each island's tour boat industry has different characteristics. On Oahu, dinner cruises are the dominant activity generating about 75 percent of total revenues. Activities are centered at the beach at Waikiki, Kewalo Basin, Honolulu Harbor, Kaneohe Bay, Keehi Lagoon, and Haleiwa Harbor. On Maui, the dominant activity is snorkeling, primarily at Molokini Crater, which generated 80 percent of revenues. Points of departure are Lahaina, Maalaea, Mala wharf, the beach in front of the hotels at Wailea and Kaanapali, and Keehi boat ramp. On Kauai, the main activities are the Na Pali Coast tours with 57 percent of the revenues and the Wailua River boat rides with 19 percent of the revenues and 72 percent of the passengers. Vessel moorings are at Hanalei, Wailua River, and Port Allen/Nawiliwih. On the Big Island, the dominant activities are dinner cruises and snorkeling trips to Kealakekua, with 76 percent of the revenues. Points of departure are the moorings at Kailua-Kona, the beach in front of various resorts on the Kona- Kohala coast, and Honokahau/Kawaihae/Puako. One cruise ship company is currently operating in Hawaii. Whale watching takes place Statewide with the major points of departure including the areas offshore of Lahaina, Kaanapali, Napili Bay/Honokowai, Molokini Island, Makena Bay/La Perouse Bay, Kihei, Kamaole Beach, and Maalaea Bay. Commercial whale watching has been described as: a highly seasonal trade lasting only from mid-December through April. Approximately 80 percent of the business is conducted by four large companies, utilizing eight vessels. Most of the large vessels doing whale watch tours operate out of Lahaina. However, as many as 28 different vessels are involved in the whale watch trade during the season, and it is common for owners of smaller vessels, catering to snorkel tours, to offer whale watch excursions when times are slow (Markrich in prep.). In general, the ocean 'recreation industry of Maui is undergoing significant changes as consumer preferences and available recreation technology changes. Tour boat operators out of Maalaea are generally using small vessels and taking passengers out for combined snorkel/whale watch excursions. Glass-bottom boat rides are on the decline; submarine and inflatable raft snorkel tours are popular and growing. The ferry boat business also grew steadily during the 1980s (Markrich in prep). The Maui to Molokai ferries, which are partially subsidized by the State, transport workers and others from Molokai to Maui hotels. The ferry service to Lanai is privately owned. 2) Thrill Craft (Personal Watercraft) Thrill craft are defined by State regulations as vessels 13 feet or less in length capable of speeds in excess of 20 mph. The two main categories of thrill craft are jet skis (or waveriders) and parasailing. Final Environmental impact Statement Page 91 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary There are at least twelve operating jet ski businesses Statewide, with total direct revenues in 1990 of $4.5 million and a work force of 93 people. The operators reported carrying 129,000 people. Operators are required to have a permit and operate within designated thrill craft area, including: offshore Hawaii Kai, Kaneohe Bay, and Sand Island on Oahu; offshore of West Maui; and, offshore East and West Big Island. Certain restrictions apply during whale season. Parasail rides have been available in Hawaii since the mid 1980s and State regulations limit them to Waikiki, Hawaii Kai, Lahaina and Kona. There is one parasail operation in Maui working out of Lahaina. Due to concerns by the State that jet skis and parasail boats harass whales, the State has established rules that no jet skis or parasail operations can take place during the winter season from December 15 through May 15, a period when many tourists are visiting Hawaii. The 1990 reported revenues were $3.5 million, the work force consists of 70 employees, and 107,00 passengers were served. 3) Competitive Events Competitive events include ocean sailing races, ocean swimming races and triathlons, surfing and boardsailing contests. These all have relatively short-term impacts on the marine environment. Hawaii is the venue for several levels- of yacht racing including long distance races, international racing in Hawaiian waters, and locally organized yacht club events. The ' three long-distance races are the Victoria-Maui International Yacht Race from British Columbia to Lahaina, the Pacific Cup Race from Berkeley, California to Kaneohe Bay, and the Transpacific Yacht Race from Los Angeles to Honolulu. The International Kenwood Cup is a large statewide race of ocean-going yachts held in Hawaiian waters. The Transpacific race is held in odd-numbered years and the rest in even-numbered ones. An estimated 132 local races are held -each year near or around the main Hawaiian Is"lands from February to October and are organized by the Honolulu based Hawaii Yacht Racing Association. The ocean sailing races can have as many as 70 boats and the total expenditure for the 1990 season (1991 for the Transpacific) was $13.8 million. In 1990, sporting events that have an ocean swim component drew 2,100 out-of-state -participants with a total of 12,200. They generated $14 million in expenditures in 1990. Eighteen coniniercial and amateur events were held on Oahu, three on Maui, and 18, including three major triathlons, were held on the island of Hawaii. Popularity of the Big Island commercial events, such as the Ironman triathlon, has grown so much that the Kona Coast is now considered one of the premier ocean swimming centers in the world. In 1992, 1,379 people participated in the Kona Ironman triathlon. (Hawaii Dept. Business, Economic Development, and Tourism, 1993). Boardsurfing was an important sport in pre-contact Hawaii. Currently, four types of competitions make use of the nearshore surf: board surfing, board sailing, body surfing and body boarding. In 1990 four professional surfing contests were held at the north shore of Oahu and four professional boardsailing events were held, three on Maui and one on Oahu. The various competitions included almost 900 participants and generated about $4 million in revenues. However, these events have been troubled by competition with other users for waves and public beach areas. 4) Canoe Racing and Kayaking Hawaiian outrigger canoe racing is an important cultural tradition that dates back to pre- contact Hawaiian society and has attained international popularity. In 1990 six outriigger canoe Page 92 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part H: Description of the Affected Environment National Marine Sanctuary racing associations containing 62 clubs and 6,610 paddlers participated in 37 regattas and 32 long distance rac@s. 'Kayaking is becoming an increasingly popular sport in Hawaii. In 1990 approximately 20 amateur kayak events were held, nine on Oahu, six on Maui and five on the Big Island, and generated $245,000. Sales of kayaks generated $600,000, and kayak tours on Kauai, Maui and the Big Island generated $846,000 in revenues. The largest share of the kayak tour revenue came from the Na Pali Coast tours on Kauai. 5) Diving The estimated gross revenues from 47 dive shops interviewed in 1987 were $19.8 million (DBEDT 1992). . These dive shops conducted 54,000 introductory dives, 68,000 certified dives, and 128,000 snorkeling trips. The dive shops used 66 boats to take their clients to almost 200 dive sites around the State. The recreational dive industry is dominated by tours from Maui, primarily trips to Molokini Crater, as is shown in Table 11-26. Maui accounted for 51 percent of the introductory dives, 49 percent of the certified dives, 86 percent of the snorkel trips, and 57 percent'of the gross revenues. The Kailua-Kona area of the Big Island is also growing in popularity as a dive/snorkel destination. TABLE II-_26: Characteristics of Recreational Dive In ustry, by County, 1987 Oahu Maui Hawaii Kauai Total Companies 15 14 14 4 47 Vessels 21 27 17 4 66 -Intro Dives 15,810 27,675 7,774 2,720 53,979 -Certified 15,090 33,225 14,505 4,915 67,735 -Snorkeling 9,000 110,450 7,358 1,260 28,068 -Revenues $4.9 $11.3 $2.5 $2.5 $19.8 million Dive sites 50 66 54 26 196 Most popular 1 23 1 19, 21 6 69 ource: Tabata, 1992. iii. Economic Contributions of Ocean Recreation Ocean Recreation is a major source of revenue for Hawaii. Table 11-27 summarizes the revenue and employment ocean recreation produced in 1989. TABLE 11-27: Revenues and Emplo ment Produced by Ocean Recreation Ocean Recreation Revenues Revenue Growth Employment (in millions) Recreational fishing $78.4 11 NA Cruise ships 58.7 24 1,050 .Tour & Charterboats, 49.2 12 1,070 Competitive events 26.2 20 NA Personal boating 21.2 3 81 Dive Shops 19.8 31 518 1 Surf Shops 15.8 1 12 251 -1 Source: MacDonald arid Deese 1989. Final Environmental Impact Statement Page 93 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary e. Ocean Waste Disposal L Water Quality - Hawaii marine waters are affected by both point-source and non-point source discharges originating from industrial, agricultural, municipal and home operations, and from urban and industrial storm water runoff. The primary sources of point source pollution include: thermal discharges from electric generating plants, process wastewater from sugar mill facilities, and irrigation tailwater. Non-point sources of pollution originate primarily from rainfall events and subsequent drainage into streams during high rainfall periods. Poor water quality is common during those conditions, especially in bays and harbors where streams enter the bays and circulation is limited. These areas include: Nawiliwili, Waimea and Hanapepe Bays on Kauai; Kahului Bay on Maui; South Molokai; Hilo Bay and the Harnakua Coast on the Big Island; and Kaneohe, Kailua and Haleiwa Bays on Oahu. -In the latest 305(b) Water Quality Report produced in response to the Clean Water Act (CWA) (P.L. 92-500, as amended) requiring states to report the status of their surface and ground water quality, the overall quality of waters in the State was rated as "very good" (INALAB, INC., April 1992). High levels of toxicity have rarely been detected in most coastal waters with some exceptions (e.g. Ala Wai Canal). All ocean waters, bays and estuaries in the State fully support beneficial uses, with an exception being along the west Maui coast line (Lahaina and Kihei) where seasonal macroalgae blooms (Cladaphora and Hypnea), which may be related to excess nutrients, interfere with aquatic recreational activities. The report notes: "..habitat destruction, introduction of alien species, intensive fishing, and surface runoff containing high concentrations of sediments, bacteria, nutrients and other chemicals have, over time, *caused alterations in aquatic community structure and publicly-perceived decrease in the aesthetic qualities of surface waters." Overall many areas of the state are concerned with sewage spills (often the result of heavy storm events). However, progress is being made to address water quality problems (i.e., in 1990, the State adopted the nation's most stringent standards for the protection of marine recreational waters from pathogenic contamination) and maintain water quality standards (i.e., DOH developed new standards for 97 toxic pollutants (HAR Chapter 11 -55)). Clearly, concerns over the protection of the habitat of the humpback whale will relate to the need to ensure that any future degradation of water quality will not harm the whales. ii. Point Source Discharges Point-source discharges result,from. human activities .that discharge water or wastes from a specific point --.such as factories or sewage pipes. Section 402 of the CWA regulates and establishes a National Pollutant Discharge Elimination System (NPDES) permit program for the discharge of any pollutant or combination of pollutants, into waters of the U.S.. Permits are required for all point sources of pollution including wastewater treatment facilities, municipal storm sewers serving large (greater than 250,000) or medium sized (greater than 100,000) populations, storm water discharges associated with industrial facilities, electric generating facilities, industries, and agricultural facilities. EPA has delegated the responsibility for administering the NPDES permit program to the Hawaii Department of Health (DOH). DOH requires permit holders to monitor discharges and to submit reports on a periodic basis. In 1991, there were 15 wastewater facilities with NPDES permits in the State and eleven of those were discharging a total of 143.32 million gallons per day into ocean waters. The remaining four permit holders used injection wells or reuse of effluent for irrigation or disposal (Tarnas and Stewart 1991:74). There are two ocean disposal sites off Oahu for which CWA 301(h) waivers have been granted to permit primary discharge instead of the normally Page 94 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary consent decree to determine the environmental consequences of releasing primary treated sewage effluent in the marine waters (Mamala Bay Study Commission, 1993). There are only a few harbors and marinas in the State where boaters can have their sewage removed from the boats, consequently, most sewage is released in the nearshore marine waters. iii. Non-Point Source Discharges In recent years, the nation's coastal Waters have experienced serious water quality problems. Many of these problems are the result of what is commonly called non-point source pollution or polluted runoff. These terms both refer to pollution that enter a body of water as a result of water flowing over the surface of the land, such as rainfall, irrigation, or snowmelt. Common non-point source pollutants include soil, fertilizers, pesticides, animal wastes, oil, grease, litter, lawn clippings, and home lawn care chemicals. These and other pollutants end up in streams, rivers, lakes, estuaries and coastal waters all across the country. The consequence of non-point source pollution are varied: increased risk of disease from water recreation, algae blooms, fish kills, contaminated fish for human consumption, destroyed aquatic habitats, and turbid waters (HCZMP, 1996). Though some polluted runoff results from natural causes, most results from people's activities on the land and water. Much non-point source pollution is preventable. Non-point sources of pollution in Hawaii include sediments, nutrients, toxic chemicals, pathogens, acidity, and freshwater inflows. Sediments from eroded soi 'Is increase turbidity in coastal waters and can accumulate on critical habitats such as coral reefs. Researchers have estimated the sediments generated by each island to be 182,944 tons/year for Hawaii, 294,300 tons/year for Kauai, 138,320 tons/year for Lanai, 207,020 tons/year for Maui, 214,560 tons /year for Molokai, and 102,700 tons/year for Oahu, for a total of 1,139,844 tons per year (HCZMP 1996). Nutrients, including fertilizers, washed into coastal waters may lead to eutrophication -- the increased decomposition of organic materials in coastal waters leading to a depletion.of oxygen. Toxic chemicals, including metals, petroleum-based products, and pesticides, can pose a significant risk to coastal water quality and marine organisms. Coastal water containing significant amounts of pathogens -- disease-causing organisms, such as bacteria, viruses, and parasites -- pose a threat to human and other aquatic animal health, such as humpback whales. Land-based activities are the primary source of polluted runoff problems statewide. Agriculture, forestry, urban, marina, and hydromodification activities cause most of these problems. Storms and heavy rains generate runoff which picks up the non-point sources of pollution associated with these activities and carries them downstream to the coastal waters. In addition, when land-based activities degrade wetlands and riparian areas, they damage important natural areas that would otherwise absorb and filter polluted runoff before it reaches coastal waters. Agriculture can produce nutrient runoff which rriay include some toxic chemicals as well as soil disturbances resulting in deposition of sediments. Heavy rains in agricultural areas antagonize non-point source discharges of pollution. Nutrient runoff is detrimental to coastal zones resulting in eutrophication and depleting oxygen levels. The runoff of toxic -chemicals such as pesticides and herbicides can also be damaging to coastal waters and humans. Soil deposition results in soil erosion on land and.increased turbidity in coastal waters. The increased turbidity can negatively effect growth on reefs which are critical habitats in the area. Non-point source discharge from urban areas result from wastewater, stormwater runoff, and cesspool seepage. These sources contribute pathogens, inorganic solids, and sedimentation to coastal waters. Eutrophication, decreased oxygen levels, and increased turbidity can result- from such sources. Non-point source discharges accumulate in urban areas through channelization of storm drains from roads and industrial areas to coastal waters. Final Environmental Impact Statement Page 95 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Larger scale channelization, or hydromodifications, can be damaging to coastal waters because stream flow has been altered in some way. These alterations may bypass wetlands or other areas important for natural filtration. Channelization can also increase runoff flow into coastal waters. Examples of areas with increased flows are Hilo Bay and Kaneohe Bay. Recreational boating and the wastes associated with such an activity contributes tor non- point source discharges. Such wastes include petroleum products, organic and inorganic wastes, and paint shavings. iv. Ocean Dumping and Dredge Material The Honolulu Engineer District of the U.S. Army Corps of Engineers (Corps) operates three major programs which have a significant influence on the marine waters of Hawaii, including Regulatory, Civil Works Construction, and Civil Works Operation and Maintenance. The Corps regulates the transport of dredged materials to five EPA-designated deep water ocean disposal sites (see Table U-28 and Figure 11-18), and is also involved with twenty-six river and navigation projects, twelve flood control projects, and eight beach erosion control projects. All of the dredged material disposal sites are located outside the Sanctuary boundary. Additional projects are currently planned or under construction. The projects are often initiated at the request of State of Hawaii or local governments and approved by Congress. TABLE 11-28:, EPA Approved Hawaii Ocean Disposal Sites Site Depth (m) Area (n mi2) Distance From Shore (n mi) Kauai/Nawiliwili 1,120 0.8 3.3 Kauai/Port Allen 1,160 0.8 3.2 South Oahu 475 L-5 3.3 Maui/Kahului 1 365 1 0.8 1 5.0- HawaiijHilo 1 340 1 0.8 1 4.0 160*W 159, 158, IS7' I S6' Iss, 22*N --de-INauri iWili Part Allen0 OAHU MOLOKAI South Oahu Kahului 21' MAM LANAII,P% 20* 0 lio 200 Hilo Nautical Mile* AWAII 0 so 100 *=Dredged Material Disposal Site 19* ,Figure 11-18 Dredged Material Disposal Sites (EPA 1980) Page 96 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part Il: Description of the Affected Environment National Marine Sanctuary f - Department of Defense Activities i. Expenditures The U.S. Department of Defense (DOD) has long played an important role in Hawaii's economy. The 1991 estimate of Federal Defense expenditures in Hawaii on goods and services was $3.3 billion. This was a modest increase in real terms since 198 1, shown in Table 11-29. Most of this spending occurred on Oahu. The regional impact is shown in Table U-30. TABLE 11-29: Defense Expenditures in Hawaii [in $ billions] 1981 1991 Defense Expenditures $2,041.2 $3,300.0 GSP Price Deflator 93.3 146.2 Real Defense Expenditures $2,187.7 $2,257.2 Source: Hawaii State Data Book, 1992, Tables 319 and 4 10. TABLE 11-30: Military Personnel and Dependents, and Acreage Mntrolled by the U.S. Departm nt of Defense Military Military Tota--] Personnel Dependents Acreage State 52,965 56,994 238,937 Honolulu 52,729 56,709 81,459 Maiii 17 23 6,327* Hawaii 80 129 101,882 Kauai 139 133 20,492 Does not include Knhoolawe. Source: Hawaii State Data Book 1992, (Tables 313 and 320) ii. Activities/Operations in Hawaiian Waters Hawaii is important for national defense purposes because of its strategic location and facility use for both operational and training purposes. Many of the defense facilities (e.g., Pearl Harbor, bases, test ranges) are located on or near the water where transit and training activities occur. The U.S. Army, Air Force, Navy and Marines all have extensive personnel and equipment based in the Hawaiian Islands. Even with the downsizing of the military establishment, activities in Hawaii are not expected to decrease in the long-term (e.g., some units will leave but will be replaced with other units from overseas stations) (DOD Briefing, March, 1994). The Pacific Missile Range Facility (PMRF) located at Barking Sands off the west of Kauai also plays a significant role as a u-dining facility and is used year-round for air, surface and subsurface training. There are existing limitations of public use both on the water and on the land during specific times of testing exercises. PMRF uses underwater instruments, airplanes and helicopters to ensure that humpback whales are not in the vicinity prior to initiating testing exercises. The State of Hawaii Department of Defense/National Guard also conducts military training exercises in conjunction with other Federal armed services and non-military activities such as responding to emergencies (e.g. helicopter firefighting including water bucket pickups and training and search and rescue operations) in and near the Sanctuary. The Hawaii Air Guard operates aerial refuelers (tankers), tactical airlifters, 'and tactical fighters. The Army Guard operates tactical and Final Environmental Impact Statement Page 97 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary transport helicopters and fixed-wing aircraft. In addition, a large number of visiting (transit) aircraft from U.S. military forces fly similar missions in support of the Hawaii based units. The following examples demonstrate some of the types of Department of Defense military operations which occur in or around the Sanctuary. Also see listing in Appendix F. * 1 .Submarine Sea Trials. Sea trials usage for submarines upon completion of major repairs such as post-overhaul and post depot-modernization period. This usually occurs in the vicinity of Penguin Bank in the Kaiwi Channel. 2. Submarine Transit Usage (submerged and surfaced throughout islands, Penguin Banks). Occasional port visits to Maui and the other islands. 3. Anti-Submarine Warfare (ASW) Exercises. Usually two per year, lasting several days with surface ships and submarines and including the use of expendable equipment such as smoke floats'and bathythermograph probes. Shallow waters are a necessary element in meeting the training requirements. Other exercises including the launching of recoverable, inert (non- explosive) torpedoes are conducted regularly. In some cases, pa@ssive (non-noise emitting) hydrophones are placed in arrays on the ocean floor for tracking purposes, Which can also be used for non-military uses such as marine mammal or underwater acoustic research. The Pacific Missile Range Facility has prepged a draft environmental assessment on such an operation (PMRF Draft Environmental Assessment For A, Temporary Hawaiian Area Underwater Tracking System, April 1994). 4. Special Operations. Necessary to use shallow water areas to meet the littoral mission of the Navy. Usually conducted once a year and last about 24 hours involving submarines and small surface craft. Inert ordinance is used and retrieved. 5. Helicopter and Fixed-Wing Aircraft Operations. Search and rescue, passenger and cargo transfer and special' training operations are conducted at low altitudes using night vision devices, etc. 6. Surface Ship Operations. These operations include submarine sea trial escort, dive rescue, and salvage operations. Transit throughout MHI's. 7. U.S. Marine Corps Operations involve practicing amphibious landings and raids from day/night helicopter operations from Oahu to other islands and bases. iii. Other DoD Military Operations In The Hawaiian Islands Surface Operations � Search and Rescue Operations (Inside and outside 100-fathom Isobath) 0 Firefighting operations, including water bucket pick-ups � Pierside Training and Maintenance (Inside 100-Fathom Igobath) � Dry Docking Operations at Pearl Harbor � Harbor Movements by Ships, Submarines, Boats and Auxiliary Craft � Anchoring � Transit Operations Between Harbors and Operating Areas (Within the 100-Fathom Isobath) � Special Operations Involving Swimmers and Small Boats (Within the 100-Fathom Isobath) � Salvage Operations and Towing (Within the 100-fathom Isobath) � Transit OperationsBetween Operations Area (Outside 1 00-Fathorn Isobath) � Towing Operations (Outside 100-Fathom. Isobath) � Engineering, Navigation, Seamanship, and General Warfare-Related Training Exercises (Outside 100-Fathom Isobath) � Replenishment Operations Underway (Outside 100-Fathom. Isobath) � ASW Operations (Within and Outside 100-Fathom Isobath) * Amphibious Warfare Operations � Anti-Surface Warfare Operations (ASUW) (Within and Outside the 100-Fathom Isobath) � Anti-Air Warfare (AAW)Operation (Outside the 1 00-Fathom Isobath) Page 98 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary Explosive Ordnance Disposal (EOD) and Demolition Operations (Within 100-Fathorn Isobath Mine Warfare and Mine Counter-Measure Operations by Surface Ships (MCM) (Within and Outside the 100-fathorn Isobath) Subsurface Operations Transit Operations (Surfaced and Submerged) to and from Ports and Operating Areas Post Maintenance Shallow Water Dives Deep Water Dives and Surfacing Special Warfare Operations with Swimmers and Small Craft ASW and Anti-Surface Warfare Operations Torpedo Exercises Using Retrievable Non-Explosive Torpedoes Mine Warfare (MIW) Training During Submarine Transit of a Field of Bottom-Practice Mines MIW Training for Submarines, Including the Launching of Recoverable Exercise (Inert) Mines Air Operations Landing and Takeoff by Helicopters and Fixed-Wing Aircraft from Shore Bases Landing, Takeoffs, and Training Flights at Altitudes above 50 Feet by Helicopters from Ships Training Flights and Transfers of Personnel and Equipment by Helicopters and Fixed-Wing Aircraft at Altitudes above 50 Feet Low Flying Tactical Helicopter Flights Transiting Between Island Training Areas at Altitudes Between 200 and 500 Feet Launches of Target Drones and Missiles from Shore Bases Operations from Patrol (P-3) Aircraft and Helicopters against.Actual Submarines or Mobile Targets Insertion/Extraction of Special Forces (SF)/USMC Reconnaissance (RECON) Troops from Helicopters and fixed-wing aircraft into the water Aircraft Carrier Operations Air Combat Maneuvering Live Missile Firings by Aircraft Versus Target Drone Bombing, Missile Firing, and Gun Exercises by Aircraft Using Surface Targets or Kaula Rock g - Energy and Industrial Uses Use of the ocean waters surrounding Hawaii as a potential source of energy is important given the State's relative isolation and its dependence on imports to meet energy demands. The State supports many forms of alternative energy research and development, most of which focus on the ocean. During the 1980's Hawaii became the world's leading site for Ocean Thermal Energy Conversion (OTEC) research and implementation. OTEC facilities are intended to replace traditional fossil fuel electrical generation capacity. Other potential energy resources from the ocean, though not currently a priority, include marine biomass plantations for the generation of methane gas, wave power generators, and tidal power generators. In addition, existing conventional energy facilities in Hawaii affect the ocean directly in a number of ways. Hawaii's most important energy source, crude oil, is transported to Hawaii via large oil tankers. The crude oil is unloaded at an offshore mooring site near Barbers Point, Oahu, where it is processed at two oil refineries. Oil-burning electrical generation plants are sited near the ocean and use ocean water for cooling systems. i. Hydrocarbon (oil and gas) Resources Hawaii has no natural reserves of conventional energy sources which include petroleum, natural gas, or coal. There are, therefore, no proposals for exploration, development, or production of hydrocarbon resources in the vicinity of the Sanctuary. Crude oil, all of which must be delivered by tanker, is Hawaii's primary energy source. Per capita oil consumption in 1988 equaled approximately 285 million Btu, or about 45 barrels of oil per person. Nearly 60 percent of Final Environmental Impact Statement Page 99 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary the annual Statewide demand for oil is related to transportation needs, such as aviation fuel. Electric utilities are the next largest consumers of oil. Due to the State's mild climate, however, there are. virtually no consumer heating needs, and residential energy consumption is relatively low (Schultz 199 1). ii. Ocean Thermal Energy Conversion Hawaii is the primary site for OTEC research and implementation. Research and development of OTEC methodology are focused on the conversion of renewable solar energy stored in the ocean into electrical energy. The OTEC system is generally comprised of two components. The first system is a system of warm and cold seawater intake and discharge pipes. The second is a plant facility consisting of pumps, turbine generators and heat exchangers. While the methodology and operating costs for OTEC are relatively inexpensive, the capital costs of constructing installations large enough to provide community power are high, especially when contrasted with the currently low price of oil. Nonetheless, OTEC research in Hawaii has grown since 1975, when the Natural Energy Laboratory of Hawaii Authority established the Kona Seacoast Test Facility located at Keahole Point on the Big Island as the primary OTEC research facility in the United States. Between 1979 and 1989, growing interest in OTEC projects supported expansion of the Seacoast Test Facility,into the Hawaii Ocean Science and Technology (HOST) Park. An OTEC demonstration project that produced net electrical power for the first time with an open-cycle system has been operating here since 1993. A closed-cycle system OTEC pilot plan began in 1995. A variety of State authorities have jurisdiction over all ocean energy development projects in Hawaii including: DLNR; Department of Transportation (DOT)-Harbors Division; DOH; Public Utilities Commission, and relevant County planning commissions. In addition, such projects may be subject to the jurisdiction of Hawaii's Coastal Zone Management (CZM) Program. iii. Geothermal Energy Production/Underwater Electrical Transmission Cables Hawaii has one geothermal energy facility located on the Big Island near Puna. The Puna Geothermal Venture (PGV) produces electric energy from a geothermal power plant and geothermal wellfield located approximately 21 miles south of Hilo in the Puna District. PGV is sited on about 500 acres of land in the Kapoho area of which approximately 25 acres houses the facility. The PGV facility is in the geologic region known as the East Rift Zone, found on the eastern flank of the Kilauea Volcano. PGV supplies electric power to homes, businesses and a wide variety of consumers across the Big Island. PGV is the first commercial geothermal power plant in the State of Hawaii and is currently producing 25 megawatts of power -- enough electricity to meet the energy needs of over 25,000 Big Island residents and visitors. At this time, geothermal energy is the only large-scale commercially produced alternative to fossil fuels in Hawaii. Solar and wind energy production are still in experimental stages and do not produce enough power for large-scale commercial application. The State of Hawaii is investigating the feasibility of placing a deep-water electrical transmission cable and support system to deliver electricity from geothermal energy resources on the Big Island to consumers on Oahu. The undersea cable could transmit up to 500 megawatts (MW) of electrical power, almost half of Oahu's current demand. This transmission system is also envisioned to provide back-up electrical power to other Islands during power emergencies (Schultz .1991). The preferred route for the undersea transmission cable will begin at Puna on the Big Island, move north and west to Waimea over land, then crosses the Alenuihaha Channel to Maui at Page 100 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part Il: Description of the Affected Environment National Marine Sanctuary a depth of 6,350 feet. On Maui, the cable comes onto land at Huakini, crossing the southern tip of the Island to submerge again at Ahini. From there, it runs northwest past Lanai and Molokai, through the Auau Channel at a depth of 4 10 feet, before heading across the Kaiwi Channel under 2,240 feet of water to Waimanalo on Oahu (Schultz 199 1). The cable project wig be implemented in conjunction with the development of a 500-MW geothermal generation plant on the Big Island in a joint effort called the Hawaii Geothermal/Interisland Transmission Project. In 1989, Hawaiian Electric sent out a Request for Proposals (RFPs) to 33 organizations to finance, design, construct, install, operate and maintain a 500-MW geothermallinterisland transmission project. That same year the State of Hawaii awarded a major contract to Environmental and Energy Services Company (ERC) to prepare the project's master plan and environmental impact statement. iv. Marine Hard Minerals Manganese crusts and nodules containing iron, manganese, cobalt, copper, nickel, and platinum are found in deep waters. outside the Sanctuary. Manganese nodules of commercial interest are located in international waters. The metal of primary *interest (on which economic feasibility is largely based) in the nodules is nickel. Copper and cobalt are also important revenue products as are manganese and molybdenum. Manganese crusts are generally found on seamounts, many of which,would be within the Exclusive Economic Zone (EEZ). The primary metal of interest in crusts is cobalt. Heavy metals, such as platinum, are also important. Manganese crusts have been located adjacent to Hawaii and Johnston Island, and are most typically found at depths between 800 and 2,400 meters or more, well outside the Sanctuary boundary. To date, more research and exploration have been directed toward the technology of seabed nodule development than has for manganese crust development. However, although present information about manganese crusts is preliminary, it is * known that cobalt concentrations in crusts are approximately four times greater than those found in nodules, and the total value of additional metals found in crusts is also higher than that found in nodules. These factors will likely support additional efforts into learning more about development of manganese crusts, particularly because crusts tend to occur in shallower waters within the EEZ, whereas nodules are often located in deeper waters outside the EEZ, where jurisdiction is less clear. In general, a marine minerals industry located in Hawaii would provide a domestic source of important strategic materials, and would significantly alleviate the current dependence upon imported cobalt, manganese, and nickel resources. The investment costs to establish a crust mining operation in the sea would be very high; given the investment costs and limited availability of sites, it is not likely that any other such operation would be established. Despite these difficulties, such an industry in Hawaii would diversify the State's economy into areas other than the traditional tourism, government (civilian and military), and construction industries. The NOAA licenses are for areas off the South American coast international waters. DOI regulates ocean mining within 200 miles whle NOAA regulates it outside of 200 miles per an agreement between DOI and NOAA. Only the area of DOI jurisdication is relevant to the Hawaiian waters. The Department of the Interior (DOI) has concluded that leases for ocean minerals can be issued under the Outer Continental Shelf Lands Act (OCSLA). The DOI, Minerals Management Service, Office of Strategic and International Minerals (OSEIA) issues permits for exploration and commercial recovery. In addition, NMFS and WESPAC would play consultative roles in the development of any manganese development proposal. Necessary permits for harbor facilities to accommodate processing, transportation and other needs related. to ocean minerals development would fall within the jurisdiction of the Corps of Engineers. Finally, EPA is responsible for water quality and protection of the benthic community beyond the State's territorial sea. Final Environmental Impact Statement Page 101 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary v. Sand Resources Sand is the most valuable nearshore mineral in Hawaii (Shannon 1991). Sand resources are vitally important to coastal areas for shore protection and as a source material for construction materials (i.e., concrete). The Worth of Hawaii's beaches as a recreational focus for residents and tourists goes beyond any dollar estimate. Some of the most popular,beaches (e.g., Waikiki and Ala Moana) are maintained against erosion and sand loss by replenishing activities. Maintenance of public beaches, and the need to compensate beaches for rising sea levels provide an impetus to investigate the feasibility of mining nearshore sand resources to meet these needs. Sand for beach replenishment is currently obtained from graded onshore, inland sand dunes located on Kauai, Maui, and Oahu. However, sand from these sources is in limited supply and, in fact, inland dune sand on Oahu is predicted to be depleted in less than ten years (Shannon, 1991). Also, the cost of transporting sand for beach replenishment from the Neighbor Islands to Oahu, combined with restrictive State regulations have further encouraged study of prospecting for sand deposits within nearshore waters (i.e., within State waters). Several potential sand deposit sites have been identified through these studies. Presently, there is no sand mining activity within the Sanctuary. There is, however, concern for future shortfalls of sand supplies. The prospect of mining offshore sand deposits will become greater as onshore sand deposits become depleted. With certain exceptions, sand mining has been effectively banned in Hawaii since 1978. However, in the event that the -State of Hawaii determines to pursue development of nearshore sand mining operations for beach replenishment,' it will be required to comply with provisions of the Coastal Zone Management Act (CZMA), the Rivers and Harbors Act, Section 404 of the CWA, and possibly Title I of the Marine Protection, Research and Sanctuaries Act. Direct jurisdiction over sand mining activities would rest with DLNR, which would issue perinits through a Conservation District Use Application (CDUA) process and through a Corps of Engineers CWA Section 404 permit. h. Agriculture As of 1991 there were an estimated 4,500 farms in Hawaii with over 1.7 million acres. Table 11-31 gives the breakdown of farms and acreage by county. TABLE 11-31: Number of Farms, Farm Acreage, and Value of Crop Sales, by County (1991 NuntxrofFarrns FarmAawge Sugar Pixopple Flowers Oda Livesaxk (11000) State Total 4,500 1,710 $174.8 $107.8 $68.1 $113.1 $90.1 Honolulu -900 125 30.6 62.2 26.2 10.0 41.8 Maui 600 355 57.9 45.7 1 8.0 1 22.8 10.0 Hawaii 2,600 1,005 43.6 3-1.3 64.2 3 3.4 Kauai 400 225 42.8 2.5 6.1 5.0 Source: Hawaii State Data Book, 1992, Table; 5 =&r The value of crop sales in 1991 was $464 million, or 16 percent greater than total sales in 198 1. In real terms, however, there was a 28 percent decline, shown in Table 11-32. Page 102 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary TABLE 11-32: Crop Sales in Hawaii [in $ millions] 1981 1991 % change Nominal Value of Crop Sales $401.3 $463.8 +15.6% CPI_U 91.7 148.0 +61.4% Real Value of Crop Sales $437.7 1 $313.4 28.4% Source: Hawaii State Data Book, 1992, Tables 563 and 411. Unprocessed sugar cane was the largest single crop with $174.9 million in sales in 199 1. Second was pineapples with $107.8 million in sales, and third'was flowers and nursery products with $68.1 million. Table 11-31 gives the breakdown by county. Sales of livestock registered $90.1 million in sales. Since 1981 total farm acreage statewide has declined from 1,965,000 acres to 1,700,000 acres in 1992, and the total acreage.in crops has declined as well from 291,300 acres in 1981 to 212,200 acres in 1992. The decline in cultivated land (79,100 acres) was due primarily to a decline in sugar cane (70,400 acres), most of which was on the Big Island (43,200,acres). The decline in Pineapple (14,800 acres) occurred mostly in Maui County which lost 15,900 acres, while there was a 1,100 acre increase on Oahu. Other agricultural products saw a 6,100 acre increase. j. Aviation The State of Hawaii has seven commercial and seven general aviation airports. In addition, there are six military and two semi-private airports. The distribution of these facilities is shown in Table 11-33. In 1992 there were 21 helicopter tour companies with 91 aircraft, using 3 semi- private heliports, eight of which are on the Big Island. Table H-34. shows the number of aircraft operations at the major State-owned airports in Hawaii. TABLE 11-33: Airports and Heliports, by Control and by Islands, 1991 Airports Heliports Commercial General Military Private Hawaii 2 2 1 8 Maui Kahoolawe -Lanai Molokai Oahu 1 2 3 Kauai 1 2 Niihau - 2 Kure Atoll - - - TOTAL 7 7 6 2 13 _J SOURCE: Hawaii State Data Book, 1992, Table 53 1. Final Environmental Impact Statement Page 103 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary TABLE 11-341: Aircraft Operations, by type of Aircraft, at Major State-Owned Airports, 1991 All Air Air General Movements Carrier Taxi Aviation Military Honolulu 403,566 196,037 65,390 113,799 28,340 Int'l Hilo Int'l 88,206 19,596 38,504 20,802 9,304 Kahului 180,857 51,668 74,410 491717 5,062 , Lihue 112,679 30,825 64,341 11 027 6,486 Keahole 56,140 26,478 11,069 15,265 3,328 Molokai 47,898 124 35t3O4 10,367 2,103 SOURCE: Hawaii State Data Book, 1992, Table 534. k. Research A significant amount of research is conducted on ocean and coastal resources in the Main Hawaiian Islands. Some examples of research on humpback whales includes: whale identification (fluke photographs and mark-recapture studies); audio mapping and tracking; and behavioral studies (social dynamics, effects of boats and other human water craft on whale behavior). Research institutions include the University of Hawaii, Kewalo Basin Marine Mammal Laboratory, Pacific Whale Foundation, Center for Whale Studies, Albright College, Moss Landing Marine Laboratories, Southern Illinois University, National Marine Mammal Laboratory, and the Hawaii Wildlife Fund (E. Nitta, NMFS, pers. comm. 1993). Some of this work is supported by NMFS; however, most is supported by private non-profit organizations through public contributions. Evans (19 '92) compiled a list of research projects initiated and funded by NMFS, designed to address NMFS concerns. Much of this work was done in Alaska, although the results have direct relevance to-the Sanctuary. These studies focused on a variety of topics including: (1) impacts of vessel traffic on humpback whale behavior-, (2) resource assessments; (3) surveys of humpback whale populations;- (4) surveys of humpback whale foraging; (5) effects of oil on the' marine environment, including humpback whales; and, (6) periodic workshops and conferences to compile and compare information on humpback whales, marine marnmal researchers, and the review and reevaluation of whale watching programs and management needs. Research is also conducted on other cetaceans in the area. The most extensive marine mammal surveys performed to date in Hawaii was conducted from February to March 1993 and repeated from February to April in 1995 to evaluate the effect of the ATOC transmission on marine mammals. The ATOC project involves a low frequency acoustic transmission designed to measure oceanic thermal characteristics. The aerial surveys were conducted to determine baseline population dynamics and distributions throughout the State. This year the ATOC Marine Mammal Research Program will investigate the effects. of ATOC sound sources on the distribution and behavior of marine mammals, particularly the humpback whale. The Sanctuary area has also been the site of research on coral reefs. Other marine research is focused on the marine resources around Kahoolawe, which includes studies on sea turtles, water quality, fish, and corals (Jokiel et al. -1993). NOAA, EPA, and DOH have supported significant research and monitoring projects in west Maui which focus on determining the factors relating to the macroalgae blooms in the nearshore waters of west Maui. The different types of research focus on monitoring and determining the dynamics of potential impacts of different land uses on nearshore water quality. Special attention is placed on nutrient loading which may cause nuisance algal blooms (J. Harrigan, DOH, pers. comm. 1993). Page 104 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary* 1. Current Educational Efforts to Address Management Concerns Various public and private groups are involved in educational efforts relating to humpback whales. A detailed list of such programs, based on the Environmental Educaiion Resource Guide by the Hawaii Environmental Education Association (HEEA), and on further discussions with various environmental education organizations is given in Appendix I. The Bishop Museum Education Program offers elementary schools guided tours through the Bishop Museum's whaling exhibits., The USFWS Kilauea Point National Wildlife Reftige on Kauai operates a public information center at the refuge and produces publications on conservation issues which are available to schools and the general public (HEEA, 1993). They are currently working with the Hawaii Sanctuary to include information on humpback whales. Major Federal and State agencies that participate in humpback whale environmental education programs in Hawaii include: NMFS, the Sanctuary, the State of Hawaii, and the University of Hawaii Sea Grant College Program. NNTS educational efforts include public meetings and public hearings related to changes in the marine mammal regulations and informational brochures (Evans 1992). The Hawaii Sanctuary conducts education and outreach activities on- and off-site for school children and adults. The Sanctuary has also worked cooperatively with Federal and State agencies, and the private sector to produce information brochures about humpback whales, watching whales and summaries of Federal regulations pertaining to whales. The State of Hawaii has designated the humpback whale as its State marine mammal. No educational campaign focusing specifically on humpback whales has been initiated by any State agency; however, administrative rules relating to management of human activities potentially affecting whales have been promulgated, as described below. . DLNR-DAR has a network of educational specialists dispersed throughout the Main Hawaiian Island chain, as a means of generating and distributing information and literature relevant to the resources of the marine environment. These efforts are supported by the Sport Fishing Institute and thus have focused on marine resources other than whales. The University of Hawaii Sea Gran' t (UHSG) has conducted several workshops, and has developed reports and brochures to educate the public about humpback whales. These include a guide for the amateur whale watcher (UHSG 1985), a catalog of individual identification photographs (Perry et al. 1988), and numerous articles in its newsletter, Makai.. There are numerous other private and non-profit groups conducting educational efforts that include humpback whales. These include the Pacific Whale Foundation, Ocean Mammal Institute, Whales Alive, Hawaii Wildlife Fund, Earthtrust, Hale Kohola (House of the Whale), Hawaii Maritime Museum, Moanalua Gardens Foundation, Sea Life Park, Waikiki Aquarium, West Coast Whale Research Foundation Center for Marine Conservation, and Greenpeace. In addition, several programs develop curriculum material for local elementary schools that include a focus on humpback whales in Hawaii, including work supported by the Malama Kai Foundation, Friends for the Future, and other Hawaii-based groups. m. Existing Protected Areas, Cultural and Historical Resources i. Protected Are4s Hawaii's marine and coastal environments are major contributors to its economy and an integral part of its history and culture. Certain marine and coastal areas are currently protected under Federal, State or county law and additional sites may be designated in the future. The Federal government uses a variety of different programs, including regulatory mechanisms and Final Environmental Impact Statement Page 105 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary special area or site specific management plans (national parks, wildlife refuges, critical habitat and species management) to protect unique or significant habitats, while the State has established and maintains natural area preserves, wildlife preserves, marine preserves and unique ecological preserves. For purposes of a comprehensive management plan, it is important to understand where all these existing protected areas are located, their purposes and regulations, and how the Sanctuary can most effectively work with and coordinate these units to ensure both Federal and State objectives are met. There are numerous opportunities to conduct joint research, education programs, interpretive displays, etc. within these units for humpback whales and their habitat, or potentially in the future for other resources if designated as Sanctuary resources. ii. Federal Protected Areas Existing Federal protected areas in marine waters include two main groups, both administered by DOI. 1) National Wildlife Refuges The Hawaiian Islands National Wildlife Refuge was created in 1909 primarily to protect numerous sea and shore birds. The Refuge includes all the Northwestern Hawaiian islands and reefs from Nihoa Island to Pearl and Hermes Reef including some 1,800 acres of emergent land and over 250,000 acres of submerged land. These islands and offshore waters provide habitats for over five million seabirds of 18 different species, including albatross, boobies, higate birds, petrels, shearwaters, storm-petrels, terns and tropic birds. There are also three endemic species of land birds, endangered Hawaiian @ Monk Seal and the t 'hreatened green turtle. Remnants of prehistoric occupation by early Polynesians are, also protected on Nihoa and Necker Islands. The@ Kilauea Point National Wildlife Refuge, established in 1985, consists of 187 acres, is located approximately 2 miles -north of Kilauea on the northem-most point of Kauai. Public use of the refuge averages more than 300,000 visitors annually. The point itself is a remnant of the former Kilauea volcanic vent that erupted about 15,000 years ago. Today, only a small U-shaped portion remains, but it includes a spectacular 586 foot ocean bluff. On calmer days, visitors can see humpback whales from the spectacular overviews. Sanctuary purposes are consistent with Refuge purposes which, among others, include: endangered species management migratory bird management environmental education and interpretation cultural and historic resource protection contamination clean-up law enforcement research opportunities Other important native wildlife refuges include Pearl Harbor and James Campbell NWRs on Oahu; Hanalei and Huleia NWRs on Kauai; Kakahai NWR on Molokai; Kealia Pond NWR on Maui; and Hakalau Forest NWR on Hawaii. 2) National Parks In some marine areas adjacent to coastal national parks, the National Park Service (NPS) manages human activitie's that may impact park resources. Under the Hawaii National Parks Act, the NPS can extend its jurisdiction over the adjacent marine areas and develop rules regulating fishing and taking of other marine.life. However, since these marine areas are located in State waters, -management strategies would require a joint Federal-State plan. Areas managed by the National Park Service in Hawaii include: Haleakala and Volcanoes National Parks; Kalaupapa, Page 106 Final Environmental impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary Kaloko-Honokohau, Pu'uhonua o Honaunau, and Puukohola Heiau National Historic Sites, and the USS Arizona Memorial. iii. State Protected Areas 1) Marine Life Conservation Districts Marine Life Conservation Districts (NlLCD) protect unique areas of the Hawaiian marine environment. DLNR-DAR is responsible for establishing, managing and regulating human uses in the MLCDs. MLCI)s have been designated at Hanauma Bay, Waikiki and Pupukea on Oahu; Manele-Hulopoe on Lanai; Molokini Shoal and Honolua-Mokuleia on Maui; and Kealakekua Bay Wailea Bay, Lapakahi and the old Kona airport on the Big Island. 2) Fishery Management Areas State regulations restrict fishing activities within Fishery Management Areas (FMA), established and managed by DLNR-DAR. Established FMAs include the Northwestern Hawaiian Islands; Waikiki-Diamond Head Shoreline on Oahu; Hanwnaulu Bay and Ahukini Recreational Pier, and Waimea Bay and Recreational Pier on Kauai; Manele Harbor on Lanai; Kahului Harbor on Maui; and Kailua Bay, Puako Bay and Reef, and Kawaihae Harbor on Hawaii. 3) The Natural Area Reserves System The Natural Area Reserves System (NARS) is administered by DLNR's Natural Area Reserve System Commission and has one site with a marine -component, Ahihi-Kinau on Maui. The goal is to protect unique natural areas from loss due to population growth and technological advances. 4) Underwater Parks Two MLCDs, Hanauma Bay and Kealakekua Bay, are also designated State Underwater Parks, managed by DLNR-DAR. DLNR-Division of Boating and Ocean Recreation (DOBOR) has been assigned responsibility for regulating all vessel traffic within Kealakekua Bay. 5) Conservation Land Use Districts Protective Subzone Conservation Land Use Districts Protective Subzones (CLUDPS) help preserve natural ecosystems necessary to native fish species. All of the Northwestern Hawaiian Islands, excluding Midway, is a CLUDPS. 6) Other State Marine Protected Areas Marine Laboratory Refuge on Coconut Island in Kaneohe Bay on Oahu; fishing restrictions in boat harbors & canals including Honolulu Harbor, Ala Wai Canal, Kapalarna Canal, Heeia Kea Wharf, Pakai Bay and Waialua Bay, Oahu; Hilo Harbor, Hawaii; Alakai Wilderness Preserve, Kauai, Paiko Lagoon Wildlife Sanctuary, Oahu Hawaii State Sea Bird Sanctuaries, managed by DLNR's Forestry & Wildlife Division. 7) Ocean Recreation Management Areas In 1988, DOT-Harbors established ten Ocean Recreation Management Areas (ORMA) along heavily-used stretches of coastline on the Islands of Hawaii, Maui, Oahu, and Kauai to help alleviate marine user conflicts and ensure that humpback whale mothers and calves would continue to have nearshore areas to utilize. The responsibility for management of the ORMAs was Final Environmental Impact Statement Page 107 and Management Plan Part ]I:. Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary transferred with the recreational boating program from DOT to DLNR in 1992. ORMA regulations limit commercial operations to designated zones, and in some ORMAs on Maui and the Big Island, completely ban thrillcraft operations during the primary humpback breeding and calving months (December 15 to May 15 of each year). The boating program was transferred from DOT to DLNR on July 1, 1992, and ORMA rules are now managed by DLNR-DOBOR. iv. Private Protected Areas The Nature Conservancy manages two preserves with significant coastal resources: Moomomi and Pelekunu Preserves on Molokai. v. Special Protected Areas Anchialine pools are protected as unique- ecosystems only in Cape Kinau Nat@ral Area Reserve, Volcanoes National Park, and Kaloko-Honokohau National Historical Park. 3. Institutional Arrangements and Respgnsibilities a. Federal Authorities i. Marine Wildlife Protection and Conservation Authorities 1) The Fish and Wildlife Act (Fish and Wildlife Coordination Act) The Fish and Wildlife Act of 1956 (16 U.S.C. 742a, et seq.), the Migratory Marine Game- Fish Act (16 U.S.C. 760c460g), the Fish and Wildlife Coordination Act (16 U.S.C. 661-666c) and other acts express, the will of Congress to protect the quality of the aquatic environment as it affects the conservation, improvement and enjoyment of fish and wildlife resources. Reorganization Plan No. 4 of 1970 transferred certain functions, including certain fish and wildlife-water resources coordination responsibilities, from the Secretary of the Interior to the Secretary of Commerce. Under the Fish and Wildlife Coordination Act (FWCA) and Reorganization Plan No. 4. any Federal agency that proposes to control or modify any body of water must first consult with the United States Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate, and with the head of the appropriate state agency exercising administration over the wildlife resources of the affected state. The FWCA authorizes the Secretary of the Interior to, among other things:'(1) provide assistance to, and cooperate with, Federal, State, and public or private agencies and organizations in the development, protection, rearing, and stocking of all species of wildlife, resources thereof, and their habitat, in controlling losses of the same from disease or other causes, in minimizing damages from overabundant species, in providing public fishing areas, including easements across public lands for access thereto, and in carrying out other measures necessary to effectuate the purposes of the Act; (2) make surveys and investigations of the wildlife of the public domain, including lands and waters-or interests therein acquired or controlled by any agency of the United States; and (3) accept donations of land and contributions of funds in furtherance of the purposes of this Act. Such areas made available to the Secretary of Interior pursuant to this Act are administered by the Secretary directly or in pursuant to cooperative agreements in accordance with such rules and regulations for the conservation, maintenance, and management of wildlife, resources thereof, and its habitat thereon. 2) The Marine Mimmal Protection Act The Marine Mammal Protection Act (16 U.S.C. � 1361 et @Leq.), as amended, is designed to protect all species of marine mammals in U.S. waters. The MMPA established a moratorium, -with Page 108 Final Environmental impact Statement and Management Plan - Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary certain exceptions, on the "taking" of marine. mammals in U.S. waters and by U.S. citizens on the high seas, and on the importing of marine mammals and marine mammal products into the United States. The term "take" is statutorily defined to mean "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal." Under the MMPA, the Secretary of Commerce is responsible for the conservation and management of pinnipeds (other than walrus) and cetaceans. The Secretary of Interior is responsible for walrus-, sea otters, polar bears, manatees and dugongs. The Secretary of Commerce has delegated NIMPA authority to NMFS- The MMPA established the Marine Mammal Commission, which advises USFWS and NMFS on marine mammal issues and sponsors relevant scientific research. Part of the responsibility NMFS has under the act involves monitoring populations of marine mammals to make sure that they stay at optimum levels. Optimum sustainable population is defined as, "with respect to any population stock, the number of animals which will result in the maximum productivity of the population or the species keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element" [16 U.S.C. �1362(8)]. If a population falls below its optimum level, it is designated as "depleted," and a conservation plan is developed to guide research and management actions to restore the population to healthy levels. 'Me MMPA provides that the moratorium on taking can be waived for specific purposes (primarily for research, education, public display and incidental to corrunercial fisheries) if the taking will not disadvantage the affected species or stock. It also indicates that permits may be issued to take or import any marine marnmal species, including depleted species, to conduct scientific research or to enhance the survival or recovery of the species or stock. Permits may also be issued to take or import non-depleted species for public display. These permits are very specific in designating numbers and species of animal that can be taken, as well as times, -dates, places and methods of taking. The MMPA sets maximum civil penalties at $10,000 and maximum crirninal penalties at $25,000. In 1994, Congress amended the MMPA, establishinga new regime to govern the taking of marine mammals incidental to commercial fishing. This new regime included the preparation of stock assessments for all marine mammal stocks in waters under U.S. jurisdiction, development and implementation of take reduction plans for stocks that may be reduced or are being maintained below their optimum sustainable population levels due to interactions with commercial fisheries, and studies of pinniped-fishery interactions. The amendments requirt NMFS and USFWS to establish regional scientific review groups to prepare the stock assessment reports for all marine marnmal stocks in U.S. waters. For scientific research, enhancement and public display, -the 1994 Amendments of the MMPA established new authority to issue permits and authorizations while' eliminating other responsibilities. The term "harassment" was statutorily defined to mean any act of pursuit, torment, or annoyance which 1. (Level A Harassment) has the potential to injure a marine mammal or marine mammal stock in the wild; or 2. (Level B Harassment) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption or behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. New provisions establish General Authorizations for low impact scientific research projects involving Level B harassment of non-endangered marine mammals, and allow NMFS to issue permits for educational and commercial photography purposes. Lastly, the 1994 amendments eliminated much of NMFS jurisdiction over marine mammals held for public display and changed documentation requirements involving their transport and import, as well as inventory record keeping. Final Environmental Impact Statement Page 109 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary 3) The Endangered Species Act The Endangered Species Act of 1973 (16 U.S.C. �1531 et @Leq.) provides protection for listed endangered or threatened species in U.S. territorial waters and upon the high seas. The ESA provides for the conservation of species which are in danger of extinction throughout all or a significant portion of their range. The most significant protection provided by the ESA is the prohibition, with exceptions, on "taking". The term "take" is defined broadly to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to. attempt to engage in such conduct" [16 U.S.C. �1532(19)]. The regulations in 50 C.F.R. �17.3 also define the term "harass" to mean "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. "Species" is defined by the Act to mean either a species, a subspecies, or, for vertebrates only, a distinct population. An individual or organization may petition to have a species considered for listing under the act as endangered or threatened. The listing of species qualifies it for increased protective measures. Generally, the USFWS coordinates ESA activities for terrestrial and freshwater species, while NMFS is responsible for marine and anadromous species. Within 90-days of a listing apetition's filing, an agency decision must be made on whether to reject the petition, or accept it and to conduct a status review of the species. NMFS or USFWS can also initiate a status review of a species without a petition for listing. If a status review is conducted, it is initiated, with a public solicitation of information anddata relevant to the population size and life history of the species. A one-year time limit is placed on making the decision to propose a species for listing. Concurrent with the final listing decision, critical habitat necessary for the continued survival of the species may be designated... For this decision, economic,impacts must be considered. Once a species is listed recovery plans are prepared which identify conservation measures to be initiated to improve the species' status. In addition, Section 7 of the ESA requires all Federal agencies to use their authorities to conduct conservation prog'rams and to consult with NMFS (or USFWS) concerning the potential effects of their actions on any species listed under the ESA. Consultations occur on an on-going basis under Section 7 with- Federal action agencies to avoid, minimize or mitigate the impacts of their activities on listed species. Each Federal agency must, in consultation and with the assistance of the Secretary of Commerce (or Interior), insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any. endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. NMFS also reviews non-Federal activities which may affect species listed under the ESA and issues section 10 permits for the incidental "take" of those species. Finally, Section 6(f) of the ESA provides that states may regulate endangered species if the state protection measure is more restrictive than the ESA. I NUFS, Southwest Region NOAA's NMFS has a variety of missions which are directly involved with marine resources in the Sanctuary. In general, these include implementation of the provisions of the Magnuson Fisheries Conservation and Management Act, the MMPA, the ESA, and the Fish and Wildlife Coordination Act (finther discussion of NMFS' roles is presented in Part Three of the Final,EIS, Section 1: Status Quo Alternative). The NMFS Southwest Regional Office is located in Long Beack California. This regional office oversees NMFS activities operating out of the Pacific Area Office in Honolulu, and the NMFS-Office of Enforcement (OE) in Honolulu. NMFS also operates the National Marine Mammal Laboratory in Seattle, and a Research Center in La Jolla, CA. Under the provisions of the MMPA and ESA, NMFS has Federal regulatory authority over the management of the Federally-protected humpback whale (also the Hawaiian monk seal.and sea turtles) in the waters around Hawaii. Page 110 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary The humpback whale was listed as an endangered species under the ESA &I June 1970. Section 4(f) of the ESA requires preparation of a recovery plan for the conservation and protection of each listed endangered and threatened species, unless it is determined that such a plan will not promote the conservation of the species. In July 1987, NMFS created a Humpback Whale Recovery Team to assist in the development of a recovery plan. In November 1991 a final Humpback Whale National Recovery Plan (Plan) was completed. NUFS and other state and Federal agencies are coordinating their efforts in the implementation of the Humpback Whale Recovery. Plan. The Sanctuary could facilitate full implementation by providing a forum for encouraging other agencies to fulfill their obligations under the plan and by providing additional resources to ensure continuation of important studies, enforcement, and education efforts. One of the principal objectives of the Plan is'to identify the need to designate critical habitat for humpback whales. Critical habitat is defined, in part, as "the specific areas mithin the geographical area occupied by the species, at the time it is fisted . . . on which are found those physical or biological features (I) essential to the conservation of the species and (H) which may require special management considerations or protection" [16U.S.C. �1532(5)(A)]. Amongthe factors that should be considered for such designation include, but are not limited to: physical space, food or physiological requirements, cover/shelter, sites for breeding/rearing of offspring, and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of listed species (see 50 C.F.R. �424.12). There are no immediate restrictions on human activities in an area designated as critical habitat. Critical habitat designation primarily affects those actions authorized, funded, or carried out by Federal agencies. The designation notifies Federal agencies that a listed species is dependent on a particular habitat and that any Federal action which may affect that habitat is subject to the consultation requirements of section 7 of the ESA. State and private activities that are conducted without any Federal involvement (e.g., fisheries not regulated by the Federal government, boating), are not subjected to the section 7 consultation process. However, it is possible that critical habitat designation could indirectly affect other user interests and coastal development, such as the Corps of Engineers' harbor and channel improvement projects. The ESA section 7 consultation process ensures that NMFS has the ability to review and recommend changes, if necessary, to activities that may directly or indirectly impact humpback whales or their habitat. The Plan also identifies numerous management and data collection activities that would assist humpback whale recovery efforts. These activities include: monitor human-related environmental factors affecting population recovery; develop Federal-State and public-private partnerships for protecting whale populations; encourage protection of whale habitats; measure changes in whale population sizes; perform new field studies on population dynamics and model whale populations; identify and reduce direct human-related injury and mortality; promote education to achieve recovery goal; and review permittees/permit procedures and adjust process accordingly. In response to a growing concern for reducing human-induced interactions with humpback whales, NNTS promulgated interim regulations for approaching humpback whales in Hawaii. 50 C.F.R. �222.3 1. NMFS also designated specific cow/calf waters around the north and east coast of Lanai and in the Maalaea Bay area of Maui which were removed by the 1994 reauthorization of the NIMPA. As provided in 50 C.F.R. �222, Subpart C, the regulations state that it is unlawful to: operate any aircraft within 1,000 feet of any humpback whale; Final Environmental impact Statement Page I I I and Management Plan Part 11: Description of the Affected Environment - Hawaiian Islands Humpback Whale National Marine Sanctuary approach by any means, within 100 yards of any humpback whale; cause a vessel or other object to approach within 100 yards of a humpback whale; or disrupt the normal behavior or prior activity of a humpback whale by any other act or ornission. These are the current regulations on which enforcement actions are based. NMFS-OE operates an enforcement program to enforce these regulations during the whale season. NMFS has a Memorandum of Understanding (MOU) with the USCG, and the Department of Land and Natural Resources to enforce Magnuson Federal Fishery Regulations, MMPA, and ESA regulations. The Hawaii DLNR enforcement officers have been deputized to enforce the above Federal regulations. NMFS-OE acts as a coordinating body and investigates reported violations of these laws. Each season, NMFS places enforcement agents on Maui to observe compliance with the approach regulations. The officer also travels to other islands as needed. The goal of enforcement is to achieve voluntary compliance with theapplicable laws. NOAA's policy for enforcement within national marine sanctuaries is to prevent, through education, violations of the National Marine Sanctuaries Act, individual Sanctuary regulations, and other related conservation laws. NOAA strives to maintain a sufficient enforcement presence within the sanctuaries to respond immediately to violations, and to also have investigative expertise available to respond to complex cases. NOAA uses three principal enforcement methods to achieve this goal within the sanctuaries: * Education -- Emphasis on education as a primary tool to ensure that the public utilizes National Marine Sanctuaries in a manner consistent with long-term resource conservation and protection. Education includes an effort to inform sanctuary visitors of the requirements of the regulations plus the management/conservation rationale on which the regulations are based. The expectation is that those users of the sanctuaries who understand the rules and the rationale behind them will comply voluntarily. An additional anticipated benefit is that off-island, as well as local Sanctuary visitors, will become advocates of responsible use of the Sanctuary resources. Education by enforcement officers is most frequently done during the conduct of patrols and inspections, but also involves programs that target local citizen, civic, business and government organizations. * Patrols/inspections - Every effort is made to provide sufficient levels of patrols and inspections in the sanctuaries by enforcement personnel of the States, NOAA, USCG, and other Federal agencies to protect sanctuary resources. This presence is intended to ensure that users of sanctuary resources are familiar with the regulatory requirements, deter violations of the law, and provide for quick response to violations that do occur. 0 Investigations - An investigative capability is ed to ensure proper documentation of and response to unlawful acts that are complex enough to require specialized in-depth investigation. Investigations will be used to determine culpability for unlawful acts, or when personnel conducting routine patrols and inspections do not have sufficient time or expertise to fully document a case. iii. U.S. Fish and Wildlife Service The role of USFWS in Hawaii is predominantly land-based; however, the agency does have some limited management responsibilities in certain State waters (e.g. endangered species protection). USFWS is responsible for implementing provisions of the MMPA, ESA, Fish and Wildlife Coordination Act, and the Migratory Bird Treaty Act. USFWS also maintains Page 112 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary management and enforcement jurisdiction over the following National Wildlife Refugees in the Hawaiian Islands: Oahu: Pearl Harbor and James Campbell NWRs Kauai: Hanalei, Huleia and Kilauea Point NWRs Molokai: Kakahai NVVR Maui: Kealia. Pond NV*rR Hawaii: Hakalau Forest NWR Northwest Hawaiian Islands: Hawaiian Islands NWR None of these National Wildlife Refuge boundaries extend below the shoreline, however, many are located in waters adjacent to the Sanctuary. In the Northwest Hawaiian Islands, USFWS protect the lagoons at French Frigate Shoals and Pearl and Hermes Reef. However, other islands in the HINWR such as Nihoa, Necker, Gardner Pinnacles, Lisianski, Laysan, and Midway Islands have little or no special Federal protection (Harrison, 1985) other than for the Hawaiian monk seal. Critical habitat for the Hawaiian monk seal has been designated by NMFS out to 20 fathoms around these islands and atolls and the atolls of Kure and Midway. There is increasing support for extending the role of the Federal government into the waters adjacent to the HINWR and, to the Kilauea Point -National Wildlife Refuge in Kauai in.order to better coordinate the protection of many endangered refuge habitants (monk seals, sea turtles, and seabirds) which'depend on both the land and sea environments. iv. Marine Mammal, Commission In carrying out the functions of the MMPA, the Secretaries of the Interior and Commerce are required to consult with the Marine Manunal Commission (MMC), a special independent advisory body created by the NROPA. The role of the MMC is very broad. Among other things, it must conduct a continuing review and study of all stocks of marine mammals and of all activities of the United States relating to them; it must conduct further studies as it deems necessary; and it must make formal recommendations for the protection and conservation of marine mammals. With this authority, the MMC can directly and indirectly affect many Federal, State and local marine resource management decisions. v. Marine/Coastal Zone Protection 1) The Coastal Zone Management Act of 1, 972 As amended, the CZMA, 16 U.S.C. � 1451 et @Leq., declares that it is the national policy to: � preserve, protect, develop, and where possible, to restore or enhance, the resources of the national coastal zone for this and succeeding generations; � encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and aesthetic values as well as to needs for compatible economic development-, � encourage the preparation of special area management plans; � encourage, the participation and cooperation of the public, State and local governments, and interstate and other regional agencies, as well as the Federal government in carrying out the purposes of the CZMA; � encourage coordination and cooperation with and among the appropriate Federal, State, and local agencies in collection, analysis, synthesis, and Final Environmental,Impact Statement Page 113 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary dissemination of coastal management information, research, and technical assistance; and respond to changing circumstances affecting coastiil environments and coastal resource management. Coastal states voluntarily address and carry out this national policy through their Federally- approved coastal zone management programs. Section 315 of the CZMA establishes the National Estuarine Research Reserve System (NERRs). This program allows the Secretary of Commerce to designate representative national estuarine ecosystems that are suitable for long-term research and which contribute to the biogeographical and typological balance of the System. On Nov. 5, 1990, the CZMA was reauthorized, and amended to include, in part, provisions on non-point source pollution. Section 6217 of the Coastal Zone Act Reauthorization Amendments (CZARA) required states to develop and submit to the Secretary of Commerce a Coastal Non-point Pollution Control Program for approval. The purpose of the program is to develop and implement management measures for non-point source pollution to restore and protect coastal waters, working in close conjunction with the other State and local authorities. Hawaii's Office of Planning is currently developing this program in cooperation with DOH, EPA, and NOAA. vi. NOAA/Office of Ocean and Coastal Resource Management NOAA's Office of Ocean and Coastal Resources Management (OCRM) oversees management of the Sanctuaries and Reserves Division (SRD) and the Coastal Programs Division (CPD). CPD has primary responsibility over the administration of the Federal CZMA and provides technical. and financial assistance to the states' to implement provisions of the CZMA. SRD oversees the designation and management of national marine sanctuaries. and national estuarine research- reserves. In 1976, at the request of the State, OCRM designated the joint Federal-State Waimanu Valley National Estuarine Research Reserve on the Big Island (Hawaii). This area is managed through the efforts of DLNR with NOAA providing matching funds for administration, education, and research within the reserve. In 1996, NOAA and the State of Hawaii, agreed to de-designate Waimanu as a NERR, and leave the site as a State Natural Area Reserve. OCRM continues to work with the State of Hawaii in their implementation of a federally- approved coastal management plan. vii. National Park Service The National Park Service (NPS) is responsible for managing Haleakala and Volcanoes National Parks, and Kalaupapa, Kaloko-Honokohau, Pu'uhonua o Honaunau, and Puukohola Heiau National Historic Sites, and the USS Arizona Memorial. Most of these parks are in upland or coastal areas though several of these parks have underwater components that are adjacent to the sanctuary or overlap with sanctuary boundaries. If determined necessary to fulfill the purposes and objectives of a national park, the NPS could manage living marine resources in nearshore waters provided that ajoint Federal-State management plan is developed. Such an arrangement is currently under consideration for the waters adjacent to the Kaloko-Honokohau, National Historic Parkin Kona (Tarnas and Stewart, 199 1). viii. Fisheries Management The Magnuson Fishery Conservation and Management Act (Magnuson Act) 16 U.S.C. � 1801 et Le_q., provides for the conservation and management of all 'fishery resources in the zone between three and 200 nautical miles offshore (EEZ), anadromous species and continental shelf resources of the United States. NMFS is charged with establishing guidelines for and approving fishery management plans (FMPs) prepared by the appropriate Regional Fishery Management Council for selected fisheries within Federal Waters. These plans determine levels of commercial Page 114 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part H: Description of the Affected Environment National Marine Sanctuary and recreational fishing that are consistent with the goal.of achieving and maintaining an optimum yield for each fishery. WESPAC prepares the FMPs for the fisheries around American Samoa, Guam, Hawaii, the Northern Mariana Islands, and other United States possessions in the Pacific. NMFS approves the fishery plans and works with WESPAC and the industry on implementation. NMFS also enforces provisions of the plans. WESPAC also works in conjunction with DLNR-DAR to jointly manage fisheries. For example, to prevent conflict between different gear types, an emergency rule prohibiting longline fishing within 50 nautical miles of Maui County, including Kahoolawe, was promulgated by WESPAC 56 FR 28116, June 19, 1991; 56 FR 31689, July 11, 1991; and, 56 FR 47701, September 20, 199 1. The emergency rule was effective from June 14, 1991 through December 16, 1991. WESPAC has formally recommended that this closure be made permanent. The State adopted WESPAC's area closure and has prohibited longlining in State Waters (DNLR-DAR, 1992). ix. Marine/Coastal Development 1) Federal Water Pollution Control Act (Clean Water Act) In addition to covering the clean-up and maintenance of America's water supply, the CWA also governs classification criteria and conservation of the nation's wetlands, under its Section 404 permit program. This program states requires a permit from the from the U.S. Army Corps of Engineers for the discharge of dredged or fill material into the navigable waters of the U. S.. Navigable waters also include wetlands areas. The Corps of Engineers administers this program, based on EPA-developed guidelines. (Also see discussion of CWA as it pertains to water quality in section x.-Water Quality). 2) Rivers and Harbors Act The Corps of Engineers administers Section 10 of the Rivers and Harbors Act of 1899, which requires a permit for construction "in, under, across, or on the banks" in any coastal or tidal waters below the mean high water mark that involves placing a structure or altering navigable waters. The construction of any structure, any excavation, or any fill activity in the territorial sea or on the outer continental shelf is prohibited without a Corps permit. While major projects require a regular permit, the Corps of Engineers also administers a "nationwide" permit program and a regional permit program for projects of limited scope to reduce delays and paperwork for small projects. All Corps of Engineers' permits apply throughout the Sanctuary boundary. 3) The Outer Continental Shelf Lands Act The Outer Continental Shelf Lands Act (OCSLA) 43 U.S.C. �1331 gt =., establishes Federal jurisdiction over the mineral resources of the Outer Continental Shelf (OCS) beyond 3 nautical miles, and gives the Secretary of the Interior primary responsibility for managing OCS mineral exploration and development. The Secretary's responsibility has been delegated to the Minerals Management Service (MMS) within DOI. The MMS has overall responsibility for leasing OCS lands hydrocarbon activities and hard minerals mining. In unique or special areas, MMS may impose special lease stipulations designed to protect specific geological and biological resources. These stipulations may vary among lease tracts and sales. The MMS is also charged with supervising OCS -operations, including the approval of plans for exploratory drilling and applications for pipeline rights-of-way on the OCS. Several types of regulatory authority are. used in carrying out the MMS supervisory role. Such authority Final Environmental Impact Statement Page 115 and Management Plan Part H: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary includes the enforcement of regulations issued pursuant to the OCSLA (30 C.F.R. ��250 and 256) and the enforcement of stipulations applicable to particular leases. x. Water Quality 1) Point and Non-point Source Discharges The Federal Water Pollution Control Act (Clean Water Act (CWA)), 3 3 U. S. C. � 125 1 et ic-q., was established in 1977 as a maJor amendment to the Federal Water Pollution Control Act of 1972 and was substantially modified by the Water Quality Act of 1987. . This act is the Nation's principal water pollution prevention statute. The CWA provides for the restoration and maintenance of water quality in all waters throughout the country, with the ultimate goal of "fishable and swimmable" water quality. The act established the National Pollutant Discharge Elimination System (NPDES) permitting system, which is the regulatory mechanism designed to achieve this goal. The authority to implement the NPDES'prograrn has been delegated to those states, including Hawaii,, that have developed a program substantially the same or as least as stringent as the Federal NPDES program. The NPDES permit program covers all point source discharges including stormwater discharges. By definition, point-source discharges these are pollutants that flow from specific points such as factories or sewage plants. The 1987 amendments to the CWA modified the thrust of NPDES program activities. Greater emphasis was placed on monitoring and control of toxic constituents in wastewater, the permitting of outfalls composed entirely of stormwater, and sewage sludge disposal. These'changes in the NPDES program resulted in more closely controlled discharge. limits and expanded the number of chernical constituents monitored in the effluent. Throughout the last two decades, a major emphasis of the CWA has been on cleaning up point sources" of pollution. Due progress has been made in controlling the emission of these pollutants and attention has shifted toward the other pollutants, know 'as "non-point" -sources. These pollutants result from land use and practices in a watershed which get are carried by precipitation runoff to streams, rivers, lakes, estuaries and coastal waters. The 1987 amendments to the CWA also placed a new emphasis on controlling polluted runoff. Section 319, CWA, requires states to develop non-point source pollution control programs and submit assessment and management plans to the EPA. Section 303 (d), CWA, required, each state to identify waterbodies not achieving water quality standards, categories and subcategories of non-point source pollutants, and state water pollution control programs. Section 305(b), CWA, requires states to monitor water quality. The EPA Region IX office in San Francisco, has regulatory responsibilities related to sewage outfalls, ocean disposal activities, and non-point pollution under the CWA. EPA has delegated these responsibilities to the Hawaii Department of Health. EPA provides oversight for the State administration of water quality programs. 2) Dredging and Ocean Dumping Title -I of the Marine Protection, Research, and Sanctuaries Act (MPRSA), 33 U.S.C. �1401 &eq., also known as the Ocean Dumping Act, prohibits: 1) any person from transporting, without a permit, from 1he United States any material for the purpose of dumping it into ocean waters (defined to mean those waters of the open seas lying seaward of the baseline from which the territorial sea is measured); and 2) in the case of a vessel or aircraft registered in the United States or flying the United States flag or in the case of a United States agency, any person from transporting, without a permit, from any location any material for the purpose of dumping it into the ocean waters. Page 116 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary Title I of the NVRSA also prohibits any person from dumping, without a permit, into the territorial sea, or the 12-nautical-mile contiguous zone to the extent that it may affect the territorial sea or the territory of the Uniied States, any material transported from a location outside the United States. EPA regulates, through the issuance of permits, the transportation for the purpose of dumping, and the dumping of 0 materials except dredged material. The COE oversees the transportation, for the purpose of dumping, of dredged material. , Dredging activities and their impacts on navigation and the environment are regulated by the COE under Section 10 of the Rivers and Harbors Act of 1899 (dredging), by EPA and the COE under Section 404 (discharge of dredge or fill materials within 3-nautical miles of the shoreline) of the CWA (3 3 U.S.C. � 125 1 et =.), and Section 103 (ocean disposal of dredge materials) of Title I of the MPRSA (33 U.S.C. �1401 et @Leq.). Permit applicants are required to comply with CZN1A Federal consistency requirements, and obtain CWA, Section 401, Water Quality Certifications prior to being issued a permit by the COE. Under Section 103 of the MPRSA, EPA designated five dredge material ocean disposal sites in Hawaii, and in cooperation with the COE, established test procedures to determine the acceptability of dredge materials for ocean dumping. All five sites are located outside the proposed Sanctuary boundary in waters deeper than 100-fathoms. 3) Vessel Sewage The CWA requires vessels to. comply with marine sanitation regulations issued by EPA and enforced by the USCG (33 U.S.C. � 1322). All vessels equipped with installed toilet facilities must contain operable and certified marine sanitation devices. USCG regularly inspects vessels to ensure these devices are properly worldng. xi. Oil Pollution 1) The Clean Water Act The Clean Water Act (CWA) prohibits the discharge of oil or other hazardous substances in quantities that may be harmful to the public health or welfare or the environment, including but not limited to fish, shellfish, wildlife, and public and private property, shorelines and beaches. The CWA's jurisdiction includes discharges: (1) in navigable waters of the U.S., adjoining shorelines, or into the waters of the contiguous zone, and (2) in connection with activities under the OCLSA or the Deep Water Port Act of 1974, or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the U.S., except, in the case of such discharges into the waters of the contiguous zone or which may affect the above-mentioned natural resources, where permitted under the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships. 2) Oil Pollution Act of 1990 The Oil Pollution Act of 1990 (OPA), Public Law 101-380, addresses a wide range of problems associated with preventing, responding to, and paying for oil spills. It does so by creating a comprehensive regime for dealing with vessel and facility-caused oil pollution. The OPA provides for environmental safeguards in oil transportation greater than those existing before its passage by: setting new standards for vessel construction, crew licensing, and manning; providing for better contingency planning; enhancing Federal response capability; broadening enforcement authority; increasing penalties; and authorizing multi-agency research and development. A one billion dollar trust fund is available to cover clean-up costs and damages not compensated by the spiller. Section 4202 of the Off Pollution Act of 1990 (OPA 90), 33 U.S.C. � 2701 gi aeq., amended Subsection 0) of Section 311 of the CWA [33 U.S.C. 1321 (j)] to address the Final Environmental Impact Statement Page 117 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary development of a National. Planning and Response System. The OPA called for the creation- of planning teams to develop contingency plans to address oil and hazardous waste spills and responses. The National Response Team (NRT) is primarily a planning, policy, and coordination body and does not respond directly to incidents. EPA coordinated this team and USCG is the Chair. They are responsible for developing a National Contingency Plan (NCP). A Regional Response Teams (RRT) is comprised of Federal and State (or Territory) representation and are responsible for developing a Regional Contingency Plan (RCP). EPA and USCG co-chair this team. Like the NRT, the RRT is mainly a planning, policy and coordinating body, and does not respond directly to incidents. The RRT has Federal and State representation. The RRT provides guidance and technical assistancelo Area Committees. As part of the National Planning and Response system, Area Committees ate to be established for each area designated by the President. These Area Cominittees are to be comprised of qualified personnel from.Federal, State and local agencies. Each Area Committee, under the direction of the Federal On-Scene Coordinator (OSC) for the area, is responsible for developing an Area Contingency Plan (ACP) which, when implemented in conjunction with the NCP and the RCP, shall be adequate to remove a worst case discharge of oil or a hazardous substance, and to mitigate or prevent a substantial threat of such a discharge, from a vessel, offshore facility, or onshore facility operating in or near the geographic area. Each Area Committee is also responsible for working with State and local officials to pre-plan for joint response efforts, including appropriate procedures for mechanical recovery, dispersal, shoreline cleanup, protection of sensitive environmental areas, and protection, rescue, and rehabilitation of fisheries and wildlife. The Area Committee'is also required to work with State and local officials to expedite decisions for the use of dispersants and other mitigating'substances and devices. Title III of the Superfund Amendments and Reauthorzation Act of 1986 (SARA). is entitled the Emergency Planning and Community Right-to-Know Act (Right-to-Know Act). This Federal statute requires emergency response planning at the State and local level. The State of Hawaii established the Hawaii State Emergency Response Corrunission (HSERC) to comply with this requirement and designated DOH as the lead agency to implement the Right-to-Know Act. The HSERC was required to delineate emergency planning districts and appoint local emergency respon 'se committees to facilitate the preparation and implementation of local emergency plans. Hawaii's four counties (Hawaii, Honolulu, Maui and Kauai) represent the emergency planning districts for the State. The HSERC established a technical subcorrunittee to draft a State plan to provide statewide guidance on oil and hazardous substances emergency response. This plan is the Hawaii Oil and Hazardous Substances Emergency Response Plan and is incorporated in the ACP. Of particular note is that Title I of the OPA establishes liability and limits to liability. Any party responsible for the discharge, or the substantial threat of discharge, of oil into navigable waters or adjoining shorelines or the EEZ is liable for removal costs and damages [OPA � 1002(a)]. Recoverable damages include damages for injury to natural resources, real or personal property, subsistence use, revenues, profits and earning capacity, public services, and the cost of assessing those damages [OPA ��1002(b), 1001(5)]. The measure of penalties for damaging natural resources includes the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of such resources; the diminution in value pending restoration; plus the reasonable cost of assessing -damages [OPA �1006(d)(1)]. NOAA has the responsibility of promulgating damage assessment regulations and compliance with the regulations will create a rebuttable presumption in favor of a given assessment [OPA � 1006(e)]. Sums recovered by a trustee for natural resource damages are retained in a revolving trust account to reimburse or pay costs incurred by the trustee with respect to damaged resources. Page 118 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary Title IV, subpart A, (Prevention) gives added responsibility to USCG regarding merchant marine personnel. It also imposes new requirements on the operation of oil tankers (double hulls on new vessels, and eventually on older vessels). Title IV, subpart B, (Removal), substantially amends subsection 311(c) of the CWA, requiring the Federal government to effectively ensure immediate removal from navigable waters or adjoining shorelines or the EEZ of harmful quantities of oil or hazardous substances. [OPA �4201(a)]. It also requires a revision and republication of the National Contingency Plan within one year, OPA �4201(c), that will include, among other things, a fish and wildlife response plan developed in consultation with NOAA and USFWS [OPA �4201(b)]. The USCG and EPA will coordinate operations for the control or removal of oil and hazardous substances resulting from offshore spills. 3) International Convention for the Prevention of Pollution of the Sea by Oil/Oil Pollution Act of 1961/International Convention for the Prevention of Pollution from Ships, 1973 The International Convention for the Prevention of Pollution of the Sea by Oil, 1954 and the Oil Pollution Act of 1961 have been superseded by the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the related 1978 Protocol (MARPOL 73n8), and implemented in the United States by the Act to Prevent Pollution from Ships, 1980, as amended in 1982 and 1987 (APPS). The APPS, in implementing Annex I of MARPOL 73/78, regulates the discharge *of oil and oily mixtures from seagoing ships, including oil tankers. The APPS, in implementing Annex II of MARPOL 73n8, regulates the discharge of noxious liquid substances from seagoing ships. Enforcement of the APPS is the responsibility of USCG. When more than 12 nautical miles from the nearest land, any discharge of oil or oily mixtures into the sea from a ship subject to the APPS, other than an oil tanker or from machinery space bilges of an oil tanker subject to the APPS, is prohibited except when: 1) the oil or oily mixture does not originate from cargo pump room bilges; 2) the oil or oily mixture is not mixed .with oil cargo residues; 3) the ship is not within a Special Area; 4) the ship is proceeding en route; 5) the oil content of the effluent without dilution is less than 100 parts per million; and, 6) the ship has in operation oil-water separating equipment, a bilge monitor, bilge alarm or combination thereof [33 C.F.R. �151.10(a)]. The restrictions on discharges 12 nautical miles or less from the nearest land are more stringent [3 3 C.F.R. � 15 1. 1 0(b)]. A tank vessel subject to the APPS may not discharge an oily mixture into the sea from a cargo tank, slop tank or cargo pump bilge unless the vessel: 1) is more than 50 nautical miles from the nearest land; 2) is proceeding en route; 3) is discharging at an instantaneous rate of oil content not exceeding 60 liters per nautical mile; 4) is an existing vessel and the total quantity of oil discharged into the sea does not exceed 1115000 of the total quantity of the cargo that the discharge formed a part (1/30000 for new vessels); 5) discharges, with certain exceptions, through the above waterline discharge point; 6) has in operation a cargo monitor and control system that is designed for use with the oily mixture being discharged; and 7) is outside the Special Areas (33 C.F.R. � 157.37). The APPS is amended by the Marine Plastic Pollution Research and Control Act of 1987 (I@VPRC& which implements Annex V of MARPOL 73n8 in the United States. The MPPRCA and implementing regulations at 33 C.F.R. ��151.51 to 151.77 apply to U.S. ships (except warships and ships owned.or operated by the U.S.) everywhere, including recreational vessels, and to other ships subject to MARPOL 73n8 while in the'navigable, waters or the EEZ. They prohibit the discharge of plastic or garbage mixed with plastic into any waters and the discharge of dunnage, lining, and packing materials that float within 25 nautical miles of the nearest land. Other unground garbage may be discharged beyond 12 nautical miles from the nearest land. Other Final Environmental Impact Statement Page 119 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary- garbage ground to less than- one inch may be discharged beyond three nautical miles from the nearest land. Fixed and floating platforms and associated vessels are subject to more stringent restrictions. "Garbage" is defined as all kinds of victual, domestic and operational waste, excluding fresh fish and parts thereof, generated during the normal operations of the ship and liable to be disposed of continuously or periodically, except dishwater, gray water, and certain substances (33 C.F.R. �151.05). USCG regularly enforces the provisions of these this law throughout the EEZ. xii. Marine Transportation Safety 1) The Ports and Waterways Safety Act The Port and Tanker Safety Act (PWSA) of 1978, 33 U.S.C. � 1231 et as- amended, is designed to promote navigation and vessel safety and the protection of the marine environment. The PWSA applies out to 200 nautical miles and authorizes USCG to establish vessel traffic services for ports; harbors, and other waters subject to congested vessel traffic, or which are otherwise hazardous. Two such services are the Vessel Traffic Separation Scheme and designation of necessary fairways. In addition to vessel traffic control, the USCG regulates other navigational and shipping activities and has promulgated numerous regulations relating to vessel design, construction, and operation designed'to minimize the likelihood of accidents and to reduce vessel source pollution. The 1978 amendments to the PWSA establish a comprehensive program for regulating the design, construction, operation, equipping, and banning of all tankers using U.S. ports to transfer oil and hazardous materials. These requirements are, for the most part, in agreement with "protocols (passed in 1978) to the International Convention for the Prevention of Pollution from Ships, 1973, and the International Convention on Safety of Life at Sea, 1974. In addition to enforcing fishing and ve5sel discharge regulations, the USCG is also responsible for regulating vessel traffic, maintaining boater safety, and coordinating search and rescue operations. The l4th Coast Guard District Office is located in Honolulu; USCG stations are located at Honolulu Harbor;* Coast Guard Air Station at Barbers Point Naval Air Station; Nawiliwili Harbor, Kauai; Maalaea Harbor, Maui; and Hilo Harbor, Big Island. b. State and County Regulatory Authorities 1) Environmental Impact Statement Law The State's environmental impact statement law (HRS, �343) is modeled on the National Environmental Policy Act. It requires that 'Environmental Assessments (EA) be prepared for actions undertaken by, or requiring the approval of, State and county governments that may have negative environmental impacts. If it is determined that such an action will have no negative environmental impact a "negative declaration" 'is made. If the State agency preparing the EA determines there may significant environmental impacts, an EIS must be prepared and made available for public comment. In the marine environment, the Governor has the authority to accept or reject the EIS (Tarnas and Stewart 1991:52). 2) Hawaii Coastal Zone Management Act Chapter 205A, HRS, provides the legal foundation for the State's CZM Program. The law requires that any action within the Coastal Zone, which includes all land and water within the State's jurisdiction except Federal lands, must be consistent with the policies and objectives stipulated in HRS 205A. However, under authority provided through the Federal CZNLk, Federal Page 120 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment- National Marine Sanctuary actions, whether in or outside the coastal zone, that are reasonably likely to affect the coastal zone must comply with the C72VIA's Federal consistency requirement. -Under HRS 205A, Special Management Areas (SMAs) provide for special protection of resources directly on the coast within the jurisdiction of each of the four,Counties. 3) Coastal Zone Management Areas Through HRS Chapter 205A, the state legislature created "Special Management Areas" (SMAs) along the coasts of the State and gave the counties authority to issue permits for development activities'in these areas (Office of State Planning, 1990). SMAs extend inland a minimum of 100 yards and, in undeveloped areas surrounding bodies of surface water subject to salinity intrusion or tidal influence, often extend further inland. The counties are to "seek to minimize, where reasonable": dredging, filling, or other alteration of bays, estuaries, salt marshes, river mouths, sloughs and lagoons; the reduction in size of beaches or other public recreation areas; developments that would, restrict access to coastal areas; developments that would "substantially interfere with or detract from the line of sight toward the sea from State highway nearest the coast"; and, "any development which would adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats, or potential of existing agricultural uses of land." Permits are issued by counties after environmental analyses and public hearings are conducted. A second type of coastal zone management area designation under Hawaii CZM statutes establishes shoreline setbacks of not less than 20 feet and not more than 40 feet inland from the shoreline (HRS, Chapter 205A, as amended). With some minor exceptions, the law prohibits the mining and taking of sand, dead coral or coral rubble, rocks, soil, or other beach or marine - deposits from the shoreline area, or within 1000 feet 'seaward from the shoreline, or in water of 30 feet or less in depth in the territorial -sea. In addition, structures (or portions of structures) including but not limited to seawalls, groins and revetments, are not permitted within the shoreline. area without a variance by the particular county authority (Hawaii Office of State Planning, 1990). 4) Areas of Particular Concern and Priorities of Use The C0VIA requires that states include in their management programs an inventory and designation of areas of particular concern (APCs) or interest within the coastal zone as well as a priority of uses in these areas, including those of lowest priority. Criteria for designating APCs includes areas of unique habitats, historic or cultural value, high natural productivity, substantial recreational value, and areas where development and facilities are dependent upon the utilization of, or access to, coastal waters [see 15 C.F.R. �923.2 1 (b)]. Hawaii has several programs which. meet the requirements of the APC concept noted above that are managed under different agencies within the State. 5) Hawaii Ocean and Submerged Lands Leasing Act The Hawaii StateConstitution gives the State the power to manage and control the marine, seabed, and other resources located within the boundaries of the State including its archipelagic waters, and reserves to the State all such rights outside State boundaries not specifically limited by Federal and international law (HRS, Chapter. 190D). Under the Hawaii Ocean and Submerged Lands ' Leasing Act, the DLNR, in agreement with DOT, may lease State'. marine waters and submerged lands for.marine activities. DLNR has jurisdiction over conservation district lands, under which fall all lands seaward of the shoreline to the limit of the State's jurisdiction (three nautical miles). The BLNR reviews CDUAs to allow construction or activities in conservation lands (e.g., seawalls, revetments, installation of moorings), although the DLNR can deny pen-nit applications or attach conditions to them. Under State law, sand mining is currently prohibited except for: permitted replenishment or protection of public lands (Chapter 171-58.5, HRS) 'or Final Environmental Impact Statement Page 121 and Management Plan Part 11: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary where the mining or taking is authorized by a variance (Chapter 20-5A-44, HRS). However, the DLNR may not lease any areas when existing programs of DLNR (i.e., MLCDs, Shoreline Fisheries Management Areas, or NARS) will suffer adverse impact as a result of the proposed activities (HRS, Chapter 205). DOT issues permits for ocean dredging, filling, construction, and dumping materials below the mean high water mark. The DOT permit is similar to those pem-iits issued by the Corps of Zn Engineers, however, DOT reviews the proposed activity from a State perspective and may object to a project the Corps of Engineers has allowed (or vice versa). ADLNR CDUA permit may also be required for' activities conducted in submerged lands. 6) Protection of Marine and Coastal Species It is the State's policy to protect endangered species of indigenous plants and animals and introduce new plants 'and animals only after ensuring that such introductions will pose negligible ecological hazard (HRS, Chapter 344). DLNR accords those species designated "endangered" or "threatened" under the Federal ESA the same status under State law. DLNR may also designate other-species under administrative rule. The regulations are variable according to the species designated but include complete prohibitions, seasonal taking, minimum size measurements, bag limits, and for certain crustaceans such as lobsters and crabs no spearing or taking with eggs. Some methods of baitfish capture are also restricted by net type and net size, regulations and a special license requirement. Hawaii prohibits the removal of any live covered rock, or live stony coral from the waters of the state, including any live reef or mushroom coral. It is also unlawful to take, destroy, possess, or sell any pink or gold corals taken from waters of the state except from the Makapuu Beds of Oahu which are regulated by permit and weight limits. Marine algae collection is perri-litted except for removal of the holdfast or taking when reproductive nodes are present. Algae collection is limited to one pound per person per day for home consumption. Licensed commercial operators can collect up to ten pounds per day per license with the exception, of Maui where no commercial taking is allowed. Clams, oysters, and other shellfish, excluding opihi, are prohibited from any taking (DLNR-DAR, 1991). 7) Water Quality Standards DOH has established water quality standards for Hawaii in Chapter 11, HAR, based on Federal CWA standards. Marine waters are classified as either Class AA or Class A. Class AA waters include "pristine" areas along Hawaii's coastline and "...all embayments in preserves, reserves, sanctuaries, and refuges" [HAR, �11-54-006(a)(2); Stewart and Tarnas 1991].' No effluent discharge is allowed in Class AA waters at depths less than 10 fathoms. Allowable uses in these waters include "oceanographic research, the support and propagation of shellfish and other marine life,. conservation. of coral r6efs. and wilderness areas, - compatible recreation and aesthetic enjoymenf' [HAR, �11-54-03(c)(1)]. Class A waters are protected for recreational purposes, aesthetic enjoyment, and for activities compatible with the protection and propagation of fish, shellfish, and wildlife [HAR, � 1 1-54-03(e)(2)]. In addition, there are basic State water quality rules that apply to both Class AA and Class A waters that control ocean dumping, thermal pollution, turbidity, and nearly 100 toxic substances (HAR, Chapter 11-54; Tarnas and Stewart 199 1). These criteria are among the, most stringent in the Nation (DOH 1990, Water Quality Management Plan for the,City and County of Honolulu). DOH is responsible fqr monitoring and enforcing these regulations. Marine bottom ecosystems are designated as Class I and Class II. Class I bottom areas are protected to keep them "...as nearly as possible in their natural pristine state with an absolute minimum of pollution from any human source. Allowable uses of marine bottom ecosystems in Page 122 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part II: Description of the Affected Environment National Marine Sanctuary this class are passive human uses without intervention or alteration, allowing the perpetuation and preservation of the marine bottom in a most natural state, such as for non-consumptive scientific research, non-consumptive education, aesthetic enjoyment and passive activities and preservation" [� I 1-54-03(d)(1)]. In Class II bottom areas, any action that would permanently modify the bottom environment is allowed only with the approval of the Director of Health who must consider the environmental impact and public interest of such action [� I 1-54-04(d)(2)]. Detailed regulations for both Class I and Class 11 bottom.environments are contained within the HAR [� I t-54-03(d)(1)]. 8) Point Sources of Pollution NPDES penriits are required for all point sources of pollution including wastewater treatment facilities, electric generating facilities, industries, and agricultural facilities. EPA has delegated this permit authority to DOH. NPDES permits require pen-nit holders to monitor outfall areas and submit reports on a periodic basis. Once a year, DOH conducts site inspections to assure sampling techniques and obtains "split samples" to determine analytical accuracy. DOH also performs pollutant source and ambient water quality monitoring at over 76 fixed monitoning stations statewide. In 19.91, there were 15 wastewater facilities with NPDES pen-nits in the State and eleven of those were discharging a total of 143.32 million gallons per day into ocean waters. The remaining four permit holders used injection wells or reuse of effluent for irrigation or disposal (Tarnas and Stewart 1991:74). 9) Non-Point Sources of Pollution In 1987, the U.S. Congress amended the Clean Water Act (CWA) to place new emphasis on controlling polluted runoff. Section 319 of the CWA, for example, requires states to develop non-point source pollution control programs and submit assessment and- management plans. Section 303(d) of the CWA requires each state to identify waterbodies not achieving water quality standards (water quality limited segments) by categories and subcategories of non-point source pollutants. Section 305(b) of the CWA requires states to monitor and produce reports on the State's overall water quality. Various State and county agencies have mechanisms in place to control non-point source pollution. The DOH reactivated its Non-point Source Pollution Program in response to the 1987 CWA amendments and assisted the county governments in complying with CWA �208. DOH also developed a non-point source pollution Assessment Report and Management Plan that was completed in 1990 under the CWA. �319 (b) requirements. The Management Plan identified best management practices and measures to be undertaken which reduce pollutant loading from non-point sources, programs. and funding assistance to support their implementation, and a schedule for implementation. The best management measures included in the 1990 plan were to be implemented largely through existing programs and regulations with technical support from the U.S. Soil Conservation Service and the Hawaii Association of Conservation District, the Cooperativ& Extension Service, DLNR, DOT, and other State and Federal Agencies as well as private groups. In 1993, the State Legislature enacted a statute establishing the statutory framework for a regulatory non-point source pollution program In 1990, Congress enacted the Coastal Zone Act Reauthorization Amendments (CZARA), modifying the Coastal Zone Management Act (CZM) Act of 1972. CZARA, section 6217, entitled "Protecting Coastal Waters," requires states with CZM programs to develop and implement coastal non-point pollution control programs to be approved by NOAA and EPA. Federal funding for approved programs will come from EPA, under section 319 of the CWA, and from NOAA under section 306 of the CZMA. States must provide matching funds for their programs. State programs are to be developed jointly by the coastal zone management agency and the water quality agency, and must be based on guidelines developed by the EPA and NOAA. Hawaii responded to these requirements by coordinating the existing efforts of the Hawaii Coastal Zone Management Program (CZMP) and the Hawaii Department of Health (DOH). Final Environmental impact Statement Page 123 and Management Plan Part 11: Description 6f the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Hawaii has had an approved Coastal Zone Management Program since 1978. Hawaii has also had an EPA-approved voluntary non-point pollution control program since 1987. The development of Hawaii's coastal non-point source pollution control program brings together the CZM Program's experience in coordination, and land and water use control, and DOH's expertise in water pollution management. The plan was developed to (1) be realistic and implementable, given Hawaii's environmental, political, and cultural realities, (2) create an appropriate rrux of regulatory and non- regulatory mechanisms to implement the program, and (3) involve affected parties in the program development process. The plan will be implemented through both reg@ilatory and non-regulatory mechanisms. The CZM Program convened an informal working group and five focus groups which met on a regular basis, to assist with program development. The CZM Program and DOH also had extensive. consultations with groups that will be affected by the coastal non-point pollution control program. The CZM Program submitted the draft non-point pollution management plan to Ll NOAA and EPA in July 1996. The program should be fully developed by the end of 1997. The intent of the Hawaii coastal non-point pollution control program is to build upon, rather than duplicate, existing programs. The array of existing programs will be loosely bound together in a. "network" under the rubric of the coastal non-point pollution control program. Ultimately, there will be one statewide program for the management and control of polluted runoff, elements of which will implemented by a number of existing agencies. Coordination will be a central theme of the developing phases of the Hawaii coastal non- point pollution program. )While the CZM Program has the lead in coordinating the developmen 't of the overall program, the development of the separate program elements themselves has been a shared responsibility. The CZM Program and DOH, with significant assistance from other State, Federal, and county agencies, non-governmental organizations, and individuals, have jointly developed Hawaii's Coastal Non-Point Pollution Control Program management plan. The Coastal Non-Point Pollution Control Program will continue to rely on the resources, expertise, program, and authorities of other agencies and organizations during its continuing development and implementation. In addition, opportunities for public participation will continue -to be part of Hawaii's coastal non-point pollution control program. In addition, the individual counties issue grading permits for construction activities that specify erosion control measures that must be implemented for activities that involve earth moving or grading.. 10) Oil Pollution DOH monitors State waters for oil and chemical*spills in cooperation with USCG. Chapter 342D-51, HRS, requires that all discharges 'of oil, petroleum products, and other hazardous substances into State waters be reported to DOH within 24 hours of a spill. Failure to report a discharge or take corrective action can result in fines of up to $10,000 per day (J. Harrigan, 1994, pers. communication). Since 1991, DOH has been working closely with USCG and other Oceania Regional Response Teams to develop response plans and other requirements of the OPA. DOT-Harbors is authorized to regulate and control polluting discharges in State waters. HRS 266-3 specifically authorizes DOT to promulgate and administer regulations that "...prevent the escape of fuel or other oils onto the harbors, ocean waters, and streams,either from any vessel or from pipes or storage tanks upon the land" (Tarnas and Stewart 1991:75). 11) Ocean Recreation and Coastal Areas Rules DLNR-DOBOR has responsibility for promulgating and administering rules governing boating and ocean recreation (Act 272, SLH 199 1). Title 13, Subtitle 11, HAR, contains rules governing boating and ocean recreation in coastal areas of the State. Many of the provisions Page 124 Final Environmental impact Statement and Management Plan Hawaiian Islands Hump6ack Whale Part il: Description of the Affected Environment National Marine Sanctuary contained in Title 13, Subtitle I I deal with small boat harbors, vessel numbering requirements, accident reports, fines, enforcement and records, and vessel equipment requirements. However, there are specific provisions restricting activities,that could prove detrimental to the humpback whale and its habitat (see 12) "Ocean Recreation" below for examples). 12) Humpback Whale Approach Regulations Title 13, Subtitle'11, HAR, �244-40 (a) states that, "(n)o person shall appr oach by any means, or operate a vessel or other type of watercraft, or cause a vessel or other-type of water craft to approach within one hundred yards of any humpback whale within the waters of the State. Chapter 244-40 (b) further states that "(n)o person shall approach by any means, or operate a vessel or other type of watercraft, or cause a vessel or other type of water craft to approach within one hundred yards of any humpback whale." This chapter also incorporates Federal regulations (50 CFR, Part 222, subpart D, �222.3 1) governing the approach of humpback whales in Hawaiian waters. 13) Ocean Recreation HAR Title 13, Chapter 244 also details restrictions on specific ocean near-shore recreation activities within: Waikiki ocean waters, Makapuu ocean waters, two sub-zones in Kealakekua Bay ocean waters, Kailua Beach Park ocean waters, Ahihiau ocean wateIrs, Pokai Bay ocean waters, Ala Moana Beach Park ocean waters, Manele-Hulopoe marine life conservation district, Kaanapali ocean waters, and in Maunalua Bay ocean waters. These nearshore areas are defined in detail in the DNLR-DOBOR regulations and prohibited activities for each area are listed. A separate set of rules governing activities in local [shore] ocean waters and shores are contained in Chapter 254. Specific rules are included for Kailua Bay [shore] Ocean Waters [and shores], Brennecke Beach [shore] Ocean Waters, and Point Panic [shore] Ocean Waters. Chapter 255 contains another set of rules for Waikiki Beach. Most of the rules in chapters 254 and 255 deal with nearshore activities that have little relevance to the protection of humpback whales and their habitat, but they may be relevant to the protection of other resources in the future. HAR Title 13, Chapter 256 contains rules governing activities in the ten ORMAs designated by the-State. These include the North Shore Kauai ORMA (Sub-chapter 2), the South Shore Kauai ORMA (Sub-chapter 3), the North Shore Oahu ORMA (Sub-chapter 4), @ the Windward Oahu ORMA (Sub-chapter 5), the South Shore Oahu ORMA (Sub-chapter 6), the West Maui ORMA (Sub-chapter 7), the South Maui - ORMA (Sub-chapter 8), the North Maui ORMA (Sub-chapter 9), the East Hawaii Island ORMA (Sub-chapter 10), and the West Hawaii ORMA .(Sub-chapter 11). The primary purpose of the ORMAs and the rules governing activities in them is "to reduce conflicts among ocean water users, especially in areas of high activity" (� 13-256- 1): There are, however, specific provisions intended to protect humpback whales. HAR Title 13, Chapter 256 states that thrill craft operations, "shall be curtailed in certain designated areas..., .(within the ORMAs) ... as necessary,...to avoid possible adverse impacts on humpback whales or other protected marine life..." Thrill craft, which are defined in the rules to. include (but not be limited to) jet skis, wet -bikes, surf jets, miniature speed boats, and h6vercraft, are also prohibited in marine - life conservation districts or marine natural area reser 'ves. Recreational thrill craft can operate in non-designated ocean recreation managpment areas between five hundred feet from the shoreline or the outer edge of the fringing reef, whichever is greater, and two miles off the islands of Kauai, Oahu, Maui and Hawaii (�13-256-17). However, no commercial thrill craft, high speed boating or water sledding activities may be conducted in State waters unless the owner has a comniercial operating area use permit and commercial operations are limited to designated areas within the ORMAs (� 13-256-18). Final Environmental Impact Statement Page 125 and Management Plan Part 11: Description o-f the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary Parasailing operations are also limited to designated areas within the ORMAs, with the explicit intention-of avoiding . ..... possible adverse impact on, humpback whales and other protected marine life." During the period from December 15 to May 15, the maximum speed for parasailing. is limited to eighteen (18) knots.with a lower speed designated for shuttling passengers'to and from the parasailing areas (� 13-256-19). HAR Title 13, Chapter 256 (2)-(l 1) define the geographical boundaries of the ten ORMAs in considerable detail. They delineate areas within the ten zones for which specific rules apply. Prohibited and permitted activities for each of the specific areas are listed. Some areas are limited to recreational use and commercial activities are prohibited. In some areas within ORMAs, activity zones are further delineated and prohibited activities (e.g. operating or mooring a vessel or sailboard) are specified. In some cases, the number of "operators" is also specified. Recreational thrill craft zones have also been designated for the North Shore- Oahu, South Shore Oahu, Windward Oahu, East Hawaii, and West Hawaii ORMAs. Commercial thrill craft zones have been designated within the North Shore Oahu, South Shore Oahu, Windward Oahu, West Maui, and East Hawaii ORMAs. Conunercial and recreational thrill craft operations in most designated areas within the ORMA rules are explicitly prohibited from December 15 to May 15 of the following year, although there -are some exceptions [e.g., Zone D, Haleiwa Restricted Zones, North Shore Oahu ORMP--HAR, 'Title 13, Chapter 256-61(d); Zone A, Kualoa Ocean Water Restricted Zone]. These exceptions are reportedly in areas that are shallow and which, according to DOBOR officials, have been determined by NMFS to be areas not frequented by, humpback whales. 14) Humpback Whale Protected Waters HAR Title 13, Chapter 256-112 delineates the Maui Humpback Whale Protected Waters, which overlap portions. of the West Maui and the South Shore Maui ORMAs. Within, the Humpback Whale Protected Waters . ..... no person shall operate a thrill craft, or engage in parasailing, water sledding or commercial high speed boating or operate a motor vessel towing a person engaged in water sledding or parasailing..." between December 15 and May 15 of the following year. Many of the ocean recreation and coastal area rules contained in Tide 13 are clearly aimed at providing protection to the humpback whale and its habitat. However, the Legislative Auditor (1993) reports that boaters complain that the sheer volume of the regulations makes them seem excessive and virtually impossible to understand. Marine Patrol officers have also complained that the complexity of the rules makes them extremely difficult to enforce. The Legislative Auditor's December 1993 report states that "(t)hey do not reflect a comprehensive approach to a boating program" (The Auditor 1993). 15) Fisheries Regulations DLNR-DAR is responsible for the development and administration of fishery regulations within State waters. State regulations impose minimum size, gear type, bag limits, and/or seasonal restriction on over 20 species of reef, lagoon, and bottomfish species as well as several varieties of crabs and lobsters. Gill nets used in State waters must be inspected every two houts; undersized, illegal, or unwanted catch must be released. Gill nets may not be left in the water for more thad four hours in any twenty-four hour period. Under DAR regulations, the taking of live stony corals, clams, oysters, and other shellfish, sea turtles, and monk seals is prohibited. The State prohibits the use of drift gill nets, and fishing with explosives, electro-fishing devices, poisons, intoxicants, and chemicals (Hamnett 1991:40; DLNR-DAR 1993). State law also prohibits,long- fine fishing in State waters, and Federal regulations prohibit long-line fishing within 75 nautical Page 126 Final Environmental Impact Statement and Mana(yement Plan Hawaiian Islands Humpback Whale Part 11: Description of the Affected Environment National Marine Sanctuary miles of Oahu and 50 nautical miles of the islands in Kauai, Maui, and Hawaii Counties (Univ. of Hawaii Sea Grant, 1994). 16) Other State Marine Protected Areas The State has established Marine Life Conservation Districts (MLCDs) to protect unique areas, in the marine environment (HRS � 190). MLCDs have been designated at Hanauma Bay (Oahu), Kealakekua Bay (Hawaii), Manele-Hulopoe (Lanai), Molokini Shoals (Maui), Lapakahi (Hawaii), Pupukea (Oahu), Wailea Bay (Hawaii), and Waikiki (Oahu). DLNR-DAR is responsible for promulgating and administering regulations in the MLCDs. Generally, regulations prohibit the taking of marine life except by permit for scientific, educational, and other purposes that would cause minimal environmental impact (HRS 190-4; Tarnas and Stewart 1991:53). Two MLCDs have also been designated State Underwater Parks; Hanauma Bay and Kealakekua Bay (HRS � 184). Fishery Management Areas (FMAs) have already been established in: the Northwest Hawaiian Islands, Waikiki-Diamond Head Shores; Hanamaulu Bay, and Ahukini Recreation Pier (Kauai); Waimea Bay, and Waimea Recreation Pier (Kauai); Kahului Harbor (Maui); Kliflua Bay (Hawaii); Manele Harbor (Lanai); Puako Bay, and Puako Reef (Hawaii); and Kawaihae Harbor (Hawaii). DLNR-DAR is responsible for designating and developing regulations to restrict fishing activities in FMAs (HAR, Title 13, Chapter 47-54; Tarnas and Stewart 1991:53). The State has established the Natural Area Reserve System (NARS) to protect unique natural areas from loss due to population growth and technological advances (HRS � 195; Tarnas -and Stewart 1991:53-54). The NARS Commission is responsible for recommending criteria and evaluating potential sites for inclusion. DLNR is responsible for administering the NARS which includes a reserve at Ahihi-Kinau on Maui that has a marine component. Other marine and coastal areas have been designated to restrict consumptive uses of the marine environment. Waters surrounding Coconut Island in Kaneohe Bay on Oahu have been designated a Marine Laboratory Refuge. Fishing and gathering have been restricted within the Alakai Wilderness Preserve on Kauai, Paiko Lagoon Wildlife Sanctuary on Oahu, and sea bird sanctuaries at several sites throughout the State (Tarnas and Stewart 1991:54). 17) Enforcement of State Regulations There are several Federal and State agencies involved in the enforcement of State and Federal regulations that contribute to the protection of the humpback whale and its habitat. DLNR- Division of Conservation and Resources Enforcement (DOCARE) enforces state regulations concerning fisheries, protected species, hunting and wildlife, MLCD's, MFAs, NARs and underwater parks, in cooperation with other Federal, State, and county agencies. On July 1, 1996, all functions, duties, equipment and personnel were transferred from the'Department of Public Safety's Marine Patrol to DLNR-DOCARE. DOCARE was given the added responsibility to enforce boating regulations, to inspect boats for safety requirements, and to conduct search and fescue operations. Final Environmental Impact Statement Paae 127 and Management Plan Part II: Description of the Affected Environment Hawaiian Islands Humpback Whale National Marine Sanctuary This Page Left Intentionally Blank Page 128 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary PART III ALTERNATI VES AND THEIR POTENTIAL CONSEQUENCES TABLE OF CONTENTS PAGE A. "NO SANCTUARY" ALTERNATIVE .... ................................................ 133 I . Backzround ............................................................................ w.. 133 2. Feasibility of a "No Sanctupa" Alternative ........................................... 134 3 ' Consequences of Terminating Existing Sanctg-ar_y .................................... 134 4. Federal Sanctu= Without State Waters .............................................. 135 B SANCTUARY ALTERNATIVES ......................................................... 137 1. Boundpa Alternatives .................................................................. 1. 137 a. Background ............................................................................ 137 i. Kahoolawe Island Marine Waters ............................... ............. 137.. ii. Northwest Hawaiian Islands ................................................... 139 b. Boundary Alternative 1: Status Quo--Congressionally-Designated Boundary .................. I ............................... 139 c. Boundary Alternative 2: Include Only Those Areas of 1:@ihest Re*po*r'te*d Concentration of Humpback Whales ................................................ 141 d Boundary Alternative 3: Expand Congressional Boundary to Include 100-Fathom Isobath Around the Big Island, Parts of Oahu, and Eastern Kauai -- PREFERRED ALTERNATIVE .................................... 143 i. Description of Military Use Areas .............................................. 152 1) Kauai and Niihau ........................................................... 152 2) Kaula Rock ................................ : ................................. 152 3) Oahu .............................................. ............................ 153 ii. Conclusion ....................................................................... 153 e. Boundary Alternative 4: Expand Congressional Boundary to Include 100-Fathorn Isobath Around the main Hawaiian Islands and Kaula Rock ... 154 f. Boundary Alternative 5: Expand Congressional Boundary to Include 1,000-Fathom Isobath Around the main Hawaiian Islands ..................... 156 2. Regulatoly-Altematives .................................................................. 157. a. Background ........................................................................... 157 b . Regulatory Alternative 1: Status Quo--No New Sanctuary Regulations ..... 158 I. Description of Proposed Regulatory Action ................................. 158 ii. Impact to Resources ............................................................ 160 iii. Impact to Users .................................................................... 160 iv. Conclusions ...................................................................... 160 c. Regulatory Alternative 2: Adopt National Marine Fisheries Service (NMFS) Humpback Whale Approach Regulations ............................... 160 i. Description of Proposed Regulatory Action .................................. 160 ii. Impact to Resources ............................................................. 161 iii. Impact to Users .................................................................. 162 iv. Conclusions ...................................................... I................ 162 d. Regulatory Alternative 3: Adopt NMFS Humpback Whale Approach Regulations and Relevant Federal and State Regulations Protecting ' Humpback Whale Habitat--PREFERRED ALTERNATIVE .............. 162 i. Description of Proposed Regulatory Action .................................. 162 ii. hnpact to Resources ............................................................ 165 iii. Impact to Users .................................................................... 165, iv. Conclusions ...................................................................... 1-6-6 Final Environmental Impact Statement Page 129 and Management Plan Part III: Alternatives and Their Potential (@onsequences Hawaiian Islands Humpback Whale National Marine Sanctuary e. Regulatory Alt .emative 4: Adopt N@IFS Humpback Whale Approach Regulations and Promulgate Independent Sanctuary Regulations to Protect Humpback Whale Habitat ..................... ; ............................ 166 i. Description of Proposed Regulatory Action ................................. 166 ii. Impact to Resources .............................................................. 168 iii., Impact to Users ......... I ......................................................... 168 iv. Conclusions .......................... : ........................................... 1,69 f. Regulatory Alternative 5: Promulgate Strict Independent Sanctuary Regulations on Any Marine Uses and Activities Potentially Affecting Humpback Whales and Their Habitat ............................................... 169 i. Description of Proposed Regulatory Action ................................. 169 ii. Impact to Resources ............................................................ 170 iii. Impact to Users .................... ................................................ @171 iv. Conclusions ....... ............................................... 171 g. Regulatory Alternative 6: Promulgate Regulations Protecting All Marine Resources of National Significance ................................................ 171 i. Description of Proposed Regulatory Action ................................... 171 ii. Impact to Resources ............................................................ 173 iii. Impact to Users ................................................................... 173 iv. Conclusions ....................................................................... 173 3. Management Alternatives ................................................................. 173 a. Scope of Resource Coverage ........................................................ 174 i . Humpback Whale and Its Habitat, with Other Resources Identified at a Later Date for Possible Inclusion--PREFERRED ALTERNATIVE .............................................................. 174 ii. Identify and Designate Other Resources of National Significance for Inclusion in the Sanctuary Now ................. I.......................... 175 b. Administration ................... : ..................................................... 176 i. Management Responsibility ..................................................... 176 1) NOAA/SRD--PREFERRED ALTERNATIVE .................... 176 2) Other Federal Agenci *es .................................................... 176 3) State Oversight .............................................................. 176 4) Combination of Options .................................................... 177 ii. Management Implementation Period ........... ................................ 177 1) Seasonal (December - May) ............................... 177 2) Permanent (Year-Round) --PREFERRED ALTERNA@IVE*.'.*.. 177 iii. Enforcement ....................................... ...... 178 1) Status Quo ..................................................................... 178 2-) Enhanced--PREFERRED ALTERNATIVE ........................ 178 Page 130 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part JIL Alternatives and Their Potential Consequences National Marine Sanctuary TABLE III-1 Summary of Alternatives and Potential Consequences 5 Environmental Socio- Institutional* "Ok v i@ -W. , Impacts Economic Impacts ,,a Impacts 1 Status Quo - boundary as designated by Congress (100-fathom isobath around Maui 0 County, excluding Kahoolawe waters, and a small portion off Kauai) 2. Include only those areas of highest reported concentrations ofhumpback whales 0 3. Expand Congressional boundary to include 100-fathom isobath around Big Island, parts 0 of Oahu, and eastern Kauai 4. Expand Congressional boundary to include 100-fathom isobath around the Main 0 Hawaiian Islands and Kaula, Rock 5. Expand Congressional boundary to include 1000-fathorn isobath around the Main 0 Hawaiian Islands . . ....... . ... 1 Neither incorporate existing regulations nor 0 0 0 promulgate new Sanctuary regulations 2.. Adopt existing humpback whale approach 0 H regulations; promulgate no independent Sanctuary regulatory prohibitions 3. Adopt existing humpback whale approach regulations and additional habitat protection 0 measures; allow all authorized/ permitted activities by other authorities; promulgate no' independent Sanctuary regulatory prohibitionE 4. Adopt existing humpback whale approach regulations; promulgate independent 0 Sanctuary regulations to prohibit certain activities. 5. Promulgate strict Sanctuary humpback whale (++) and habitat protection regulations 6. Promulgate Sanctuary regulations to protect (++) 0 all resources of national significance The symbols indicate the net sum of all negative and positive impacts for each category Legend: (+) Beneficial impacts could result (++) Significant positive impacts could result 0 No impacts anticipated Possible negative impacts could result Significant negative impacts could result Final Environmental Impact Statement Page 131 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary TABLE III-1 (continued) Summary of Alternatives and Potential Consequences Environmefital Soclo- Institutional* Impacts Econ)mic Impacts Impacts Sam. PW maim LIN 1. Scope of resource coverage: Humpbac whale and its habitat 0 Multiple species (++) 0 2. Management responsibility: NOAA/SRD (+) 0 + Other Federal agencies 0 + State oversi ht 0 + 9 Combination of options 0 H 3. Management implementation period Seasonal 0 + Permanent (year-round) (++) 0 + 4. Enhance enforcement of existing regulations and laws relating to the protection of (++) 0 (++) I I Sanctuary resources The symbols indicate the net sum of all negative and positive impacts for each category Institutional consequences are those impacts on other government agencies that could result from the Sanctuary conducting its operations. Such operations could include reviewing permits or assisting in enforcement activities. Le2end: (+) Beneficial impacts could result (++) Significant positive impacts could result 0 No impacts anticipated Possible negative impacts could result Significant negative impdcts could result Page 132 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary Part III provides a list of alternatives for consideration for the Final Management Plan. Alternatives are considered with regard to various provisions of a comprehensive management plan which contains strategies and goals -to protect, increase scientific knowledge, and promote public understanding of Sanctuary resources, while considering the manageability of the Sanctuary, and facilitating compatible human uses of the area. Alternatives include the "No Sanctuary" option (rejected), and the Sanctuary option which assesses various boundary, regulatory, and management (or administration) alternatives for the Sanctuary. NOAA's preferred alternatives are summarized as follows: NOAA's Preferred Alternatives: 0 Boundary: All the main Hawaiian Islands (MHI), from the shoreline to the 100-fathom isobath, not including selected areas such as ports, harbors, and small boat basins and significant military use areas on W. Kauai and E. and W. Oahu. 0 Regulations: Essentially adopt existing Federal and State regulations that provide protection for humpback whales and their habitat. 0 Resources: Management focus on humpback whales and their habitat, with other resources of national significance to be considered for possible inclusion at a later date. 0 Management: A year-,round Sanctuary presence with a headquarters office on Maui, a Sanctuary manager, education and research coordinators, and a Sanctuary Advisory Council consisting of broad public representation. The preferred alternatives seek to fulfill the purposes of the Hawaiian Islands National Marine Sanctuary Act and of the Hawaii Ocean Resources Management Plan (ORMP) (Technical Supplement, January 1991, pp. 55-57); that while there are numerous agencies and regulations addressing the management of humpback whales and their habitat, there is little coordination of these mechanisms, a lack of public involvement in the regulatory process, and inadequate enforcement of the regulations. 'Moreover, through the SAC, the Sanctuary will provide a unique forum to address these issues in Hawaii's marine environment. A. NO SANCTUARY ALTERNATIVE 1. Backzround Even though the Sanctuary was designated by law through Congressional and Presidential action, many people voiced objections to the Sanctuary and the manner in which it was established with no significant public input or concern for potential economic impacts. , Comments received at scoping meetings, public comments on the DEIS/MP, as well as petitions signed by many individuals, identified the following objections to the Sanctuary as designated: a sanctuary is not needed because humpback whales are already protected by existing laws and their populations appear to be increasing because of these laws additional Federal government intrusion is not required or desired; fear of the imposition of mandatory user fees; Congressional boundary promotes inequitable economic impacts to the County of Maui over other island counties; and unknown regulations associated with "sanctuary" status raises concerns regarding potential restrictions on marine uses and industries. Because of uncertainty, as to how the. Sanctuary would impact ocean and coastal users, many people opposed the Sanctuary out o f concern that it would invoke measures such as prohibiting all boating or fishing in Maui County (or statewide) waters, raising the possibility of Final Environmental Impact Statement Page 133 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian-Islands Humpback Whale National Marine Sanctuary loss of livellhoods or restrictions on Native Hawaiian rights of access, and entail seriou,s economic consequences. Several hundred commercial and recreational boaters signed the following petition: "We oppose any further regulation and/or prohibition of fishing activities and Native Hawaiian uses of the ocean that the 'Hawaiian Islands Humpback Whale'National Marine Sanctuary' might impose." In response to these concerns, sufficient provisions are incorporated into the Final EIS/MP to ensure that boating and fishing activities are taken into account to allow for a mutual accommodation of user group needs and protection of humpback whales and their habitat. Furthermore, this FEIS/MP provides information as to what the impacts of the Sanctuary will be, thus addressing any misperceptions regarding the Sanctuary. 2. Feasibility of a "No Sanctuggy" Alternative Because the Sanctuary was Congressionally-designated, the "No Sanctuary" option is not within NOAA's authority to initiate. Implementation of the "No Sanctuary" alternative can only occur at this point in Hawaii by: Conizressional Action: Congress can repeal the HINMSA; or State of Hawaii Action: The Governor of Hawaii has had two previous opportunities to object to the Sanctuary designation within the seaward boundary of the State of Hawaii; namely, while Congress was considering the HINMSA prior to its enactment (State testimony was supportive of the Act); and 45 days after the date of enactment of the HINMSA (Governor John Waihee sent a letter to NOAA Administrator John Knauss supporting a continuation of the process). There is an additional provision in. the Act which permits the Governor to certify to the Secretary of Commerce within 45 days after issuance of the Final Management Plan and regulations that the FinpLI Management Plan, Implementing Regulations, or any terms thereof, are unacceptable. If such a -certification is made, such terms will not take effect in the area of the Sanctuary lying. within the seaward boundary of the State. Under the Act, the Secretary of Commerce could then terminate the entire Sanctuary designation if the Secretary determined that the objections by @he Governor, would affect the Sanctuary in such a manner that the goals and objectives" of the HINMSA could not be fulfilled. 3. Consequences of Terminating the Existing Sanctuga The consequences of terminating the Sanctuary wo* uld include: existing Federal and State authorities that may protect humpback whales and their habitat would continue to be enforced by the appropriate agencies and would continue to follow the guidance of the Humpback Whale Recovery Plan and any other implementation plans developed by the NMFS or other authority; existing coordination mechanisms would remain in place; the general public would not have their concerns addressed via a coordinating forum such as the SAC and thus may have less ability to influence research, education, enforcement, and management as it relates to the humpback whale and their habitat-, and Page 134 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary 0 withdrawal of any potential funding for the conduct of FederAlly-funded research, education, and information dissemination, and additional enforcement assistance under the NMSA related to Sanctuary resources (i.e., any positive benefits which may accrue as a result of Sanctuary Program implementation). All contracts and contractors.that. provide services to the Hawaii Sanctuary would be terminated. 0 use of the Kihei, Maui and Honolulu, Oahu offices as a public education and outreach facilit ,y would be discontinued 0 Termination of volunteer water quality monitoring project on Maui ,4. Federal Sanctuaa without State Waters Should the State territorial waters could be withdrawn from the Sanctuary by the Governor, a Sanctuary could still be implemented in the remaining Federal waters outside of Hawaii's territorial sea (primarily within the 100-fathom isobath waters of Penguin Bank) (Figure 111-1). The Secretary of Commerce would need to determine if the goals and objectives of the HINMSA could still be met within this limited area. This action would have obvious implications for the boundary, regulations, and management options (i.e., education, research, monitoring, and enforcement programs). Final Environmental Impact Statement Page 135 and Management Plan Oil QQ Hawaiian Islands Humpb Kaual National Marine Oahu rA mob" K IM MSJA Bound Areas Extend From Shoreline to 100-Fath Kahoolaws orn laobath with -x,;6pUon @ol Specific Exclusion Areas NOAA's proposed aroma for Inclusion In Sanctuary Boundary eD This map was woduced by the Offb8 or State Planning (OSP) for plannkv pulwses. It Should not be used for bounaary me' "'Ions or other spatial analysis beyond the Amo- ationfl., the data. information regardkV compliallon dalft State Waters within Sanctuary: 1,359.5 square miles NO accuracy of the data presented can be oUsIned ftom OSP. State Waters outside of Sanctuary: 1,519.1 square miles Sanctuary outside of State Waters: 724.3 square miles Sources: Total State Waters: 2,878.6 square miles to Military Installations - Extracted data from TRW-RIEDI Total Sanctuary Area: 2,083.8 square miles RMIlai information SwAce. 1989, 1992, " 1993. Coastal Reserves, RaftVas, Sanctuaries. and Parke - Screen-dignized from Retare Maps of the Islands of Hawall, 3rd edhion. 1990. coastline - UnrSGGS DL, files. 1:24.000. 19113. Managed Areas - DLNR, Recreation Map. 1:24,000, 1969. And USGS M/ State Waters: 0-3 miles from shoreline P) DLG administrakon At", 1:24.000, 1983. :I Marine Facifiles - DLNR-DOBOR. Small Cran Navigational Facilities. W C) 1989. 100 Fathom Isobeth (IQ One-Hundred Fathom isobeth - Droned from ROAA Havilcid Chan, (D 1:260,000, 1989. CD Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary B. SANCTUARY ALTERNATIVES 1. Bounda[y Alternatives a. Background, The boundary defines the primary ge Iographic extent of Sanctuary management and resource expenditure. Although a Sanctuary boundary was initially established by the HINMSA, the Act allows for consideration of boundary modihcations. Section 2305(d) BOUNDARY MODIFICATIONS -- No later tha 'n the date of issuance of the draft environmental impact statement for the Sanctuary under section 304(a)(1)(C)(vii) of the Marine Protection, Research, and Sanctuaries Act of 1972 [16 U.S.C. 1434(a)(1)(C)(vii)], the Secretary in consultation with the Governor of Hawaii, if appropriate, may make modifications to the boundaries of the Sanctuary as necessary to fulfill-the purposes of this subtitle. This section examines several boundary alternatives, in addition to the Congressionally-designated boundary, which NOAA consideredwhile preparing the Draft EIS/MP. Each alternative discusses the benefits to the Sanctuary's resources, and the environmental, socio-economic, and institutional' consequences. The following two areas are not included in any Sanctuary boundary alternative identified later in this section. i. Kahoolawe Island Marine Waters The marine waters around Kahoolawe are depicted in Figure HI-2. The HINMSA states that the marine environment within 3-nautical miles of the upper reaches of the Wash of the waves on the shore of Kahoolawe was to be automatically included in the Sanctuary on January 1, 1996, unless the Secretary of Commerce certified in writing to Congress that the area was not suitable for inclusion in the Sanctuary. Th -e Secretary made such a certification of unsuitability in December 1995, due to the presence of une'xploded ordnance in the waters around Kahool 'awe and to await the development of the Kahoolawd Island Reserve Commission's (KIRC) Ocean Management Plan. The HINMSA was amended in 1996 to eliminate the annual finding of suitability by the Secretary, and instead provided a process by which the KIRC could request for the inclusion 6f the marine waters within three miles of Kahoolawe in the Sanctuary. -Should NOAA determine that Kahoolawe waters may be suitable for inclusion in the Sanctuary, NOAA will prepare a supplemental environmental impact statement, management plan, and implementing regulations for that inclusion. This. process will include the opportunity for public comment. Further, the Governor would have the opportunity to certify his or her objection to the inclusion, or any term of that inclusion, and if this occurs, the inclusion or term will not take effect ,(See HINMSA, Appendix Q. .Kahoolawe Island marine waters represent a special case for consideration. After 40 years of being used for military training purposes, in May 1994, Kahoolawe was conveyed back to the State of Hawaii (Title X of P.L.. 103-139, 107 STAT 1418, 1479-1484, signed into law on November 11, 1993). Title X provides a mechanism and funding for the U.S. Department of Defense (DOD) to remove a certain amount of unexploded ordnance and for the environmental rernediation of the Island so that it may once again be used for cultural, historical, archaeological, Institutional consequences are those impacts on other government agencies that could result from the Sanctuary conductingits operations. Such operations could include reviewing permits or assisting in enforcement activities. Final Environmental Impact Statement Page 137 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary and educational purposes. While the clearance of unexploded ordnance on the land will require a 10-year program of remediation and restoration, there are unanswered questions regarding,when and how the marine waters also will be made safe. At best, only those areas of the water where access to land is necessary will probably be cleared, and even then there are problems associated with removing unexploded ordnance in coral reef waters. An aerial survey of humpback whales near Kahoolawe Island conducted in 1992 indicated that the whales seem to prefer the north shore of Kaho6lawe; that the waters may be frequented primarily by reproductively active. adults; and that the number of whales observed was substantially less than was found throughout the remainder of the four-island area (Forestell & Brown, 1992). The study noted that it was unknown whether whales avoided these waters due to the militarv's former.use of the Island as a target range, but postulated that increased humpback whale use of these waters in the future could be a possibility since bombing had ceased. Conversely, because of limited human access to the area, it is unknown if the whales use Kahoolawe's nearshore waters as a haven from boating activities, notwithstanding military use. Thus, the overall significance of Kahoolawe's waters to the humpback whales is undetermined at this time. However, as boat density is less around Kahoolawe than around other parts of the four-island area, and may remain so into the future if access to Kahoolawe remains. limited, the site could increase in significance if the whales seek more sheltered areas. In addition to humpback whales, the waters around Kahoolawe harbor an abundance of other natural, - cultural, historical, and archeological resources ........ M010kin, (see Part II for a more detailed description). Natural resources include other species of marine marnmals 100 (whales, dolphins, and monk seals), sea turtles, fish, algae, and coral reef ecosystems. Since Kahoolawe has been. Kahoolawe closed to public access for over 50 ........ s, it offers a unique opportunity for year researchers to compare impacts of land- use practices and human use on coral . ...................... reef environments' around Hawaii (Jokiel, et al. 1993). Some of the archeological resources include fishing shrines Ro'os), sacred temples (heiaus); Figure 111-2 Kahoolawe 1sland stone altars used to attract fish (ku'ula), and shipwrecks. Native Hawaiians use Kahoolawe as a center for cultural activities and religious practices. The Island and its surrounding waters are important for linking past traditions with contemporary practices. Potential benefits of Sanctuary status include cooperation in educational/interpretative programs on traditional cultural uses (i.e., ahupua'a "mountain top to reef' resource use and management), protection of religious and archeological sites (from mean highwater mark seaward to 3-nautical miles), enforcement, and technical assistance for management and research programs. Page 138 Final Environmental Impact Statement* and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary The Kahoolawe Isla:nd Reserve Commission (KIRC) has management authority'ovor the Island-and the water out to the 2-nautical mile limit. Until such time as the KIRC has deten-nined its long-term management program for Kahoolawe Island and its surrounding waters, and that all potential issues associated with unexploded ordnance have been resolved, the waters within 3- nautical miles of Kahoolawe will not be included in the Sanctuary. ii. Northwest Hawaiian Islands Because this area is not currently considered an important humpback whale winter breeding area, and to date few humpback whales have been reported around the atolls, islands, banks, and reefs of the Northwest Hawaiian Islands (NWHI) (Nitta & Naughton, 1989), NOAA is not considering the NWHI in the boundary alternatives for the Sanctuary. This area is managed as a National Wildlife Refuge (NWR) in order to protect the many important species both on the NWHI and in their surrounding waters, and there is* very limited access permitted (even for research purposes). The U.S. Fish and Wildlife Service and NMFS have some responsibilities in certain State waters around the NWHI, generally limited to protecting selected nearshore waters, such as the lagoons of the French Frigate Shoals and Pearl and Hermes Reefs, for seabirds, sea turtles, and. Hawaiian monk seals. Other islands in the NWR, however, such as Nihoa, Necker, Gardener Pinnacles, Lisianski, Laysan, and Midway, have tittle or no special Federal protection (Harrison, 1985). Beyond the nearshore,water areas, marine uses (such as long-line fishing) are regulated by NMFS to protect endangered species of sea turtles, Hawaiian monk seals, and other marine mammal and endangered species. The NWHI are rich in important endangered species and seabird colonies other than the humpback whale. In the future, should any of these other species be considered for inclusion in the Sanctuary through the selection process identified in Part V(C) of the Management Plan, this area could be considered for inclusion in the Sanctuary if sanctuary status is detenTiined to be beneficial to the protection and comprehensive management of the species considered. b. BOUNDARY ALTERNATIVE I (FIGURE 111-3) Status Quo (Congressionally-designated boundary) Waters within Maui County and off Kilauea Point, Kauai This boundary, as currently designated by law, includes the submerged lands and waters off the coast of the Hawaiian Islands seaward of the upper reaches of the wash of the waves on shore: a. to the 100-fathom (183-meter) isobath adjoining the islands of Lanai, Maui, and Molokai, including Penguin Bank, but excluding the area within 3- nautical miles of the upper reaches of the waves on the shore of Kahoolawe Island; b. to the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Nakalele Point, Maui, and southward; and c. to the 100-fathom isobath adjoining the Kilauea National Wildlife Refuge on the Island of Kauai. Final Environmental Impact Statement Page 139 and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary Moloka Sanctuary boundary designated by the Act of 1992 The waters within 3 nautical miles of Kaho'olawe are being assessed for possbile inclusion into the Sanctuary by January 1,1996 100 Fatham Isobath Figure III-3 Boundary Alt. 1: Congressionally-designated boundary This boundary's coastal mileage is approximately 255 statute miles, with a total ocean area of approximately 1400 square miles. This boundary includes the waters from the shoreline to the 100-fathom isobath and acknowledges the overall importance of the four-island area of Maui County, including Penguin Bank and the Pailolo Channel, to the humpback whale. Research conducted in this area over the past twenty years has shown that humpback whales continually return to these waters in higher densities than to other parts of the State (Nitta and Naughton, 1989; Mobley et al. 1993), and that this area encompasses one of the most important humpback whale cow-calf nursing areas in the State. The area adjoining the Kilauea National Wildlife Refuge on the Island of Kauai, while not as frequented by humpback whales as the waters in Maui County, adds breadth to the Sanctuary with a beautiful vantage point and a visitor center frequented by thousands of visitors annually. The potential compatibility of the Sanctuary with the Refuge is excellent (see Part II.D.1.a). Under this boundary alternative, Maui County and Kilauea Point, Kauai would continue to serve as a focal point of management interests. The existing boundary has been criticized by some Maui County residents and marine users because it singles out Maui County for potential, management and enforcement measures which they believe could have negative impacts to their economy. Some residents have also indicated at public meetings that any sanctuary in Hawaiian waters should include the entire state since whales are found throughout the Hawaiian Islands. Scientific evidence also shows that humpback whales are distributed and utilize habitat throughout the MHI and not just in the Maui County area (Mobley et al., 1993). While it is true that enforcement of existing laws has focused on the four-island area, and/or particular designated cow/calf areas in the past, enforcement has also been applied Statewide. As. evidenced by the "deputization" program where the NMFS Office of Enforcement deputized State authorities to assist in the enforcement of the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), relative to protection of humpback whales, a Page 140 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary enforcement should be reflected on a Statewide basis in the future as long as resource needs can be met. It is not anticipated that implementation of this boundary alternative will result in numerous adverse impacts to Maui County's economy. Rather, the fact that Maui County can claim its waters as a National Marine Sanctuary may provide some economic advantages over other islands. For example, the Maui Visitors Bureau recently developed a poster/activity brochure highlighting a Maui marinescape picture featuring a humpback whale and text that mentions the Sanctuary Nationally, marine sanctuaries attract tourists, researchers, the media, schools, and educators. In most cases, visitor information/research centers are built and Federal funds are provided for conducting research, education, and interpretive outreach. With the exception of the Kilauea Point National Wildlife Refuge on the Island of Kauai, Maui County would be the greatest beneficiary of the Sanctuary designation under this alternative and of any future funding. Indeed, some Maui residents support a narrow Sanctuary boundary limited only to. Maui County as a way of 14 monopolizing" Sanctuary benefits. Both NOAA and the State of Hawaii find that this boundary has major limitations with respect to humpback whale distribution which would minimize the potential effectiveness of a comprehensive management plan. NOAA and the State see the need and desirability of having a modified Statewide boundary to which all aspects.of the,program. could be applied (i.e., enforcement, research, monitoring, education, information dissemination, regulatory review, and evaluation of effectiveness). In conclusion, although this boundary alternative encompasses areas known to be heavily used by humpback whales, it fails to include other areas of the MAI, such as waters around the Big Island, Kauai and Oahu, that humpback whales utilize for transit, courting/mating, breeding, calving, and resting activities. While implementation of this boundary alternative is not anticipated to have adverse impacts, any.potential positive or negative socio-econornic impacts will be focused in Maui County and the small portion off- Kilauea Point, Kauai. c. BOUNDARY ALTEI?NATIVE 2 (FIGURE 111-4) Inclusion of Areas of Highest Humpback Whale Concentrations Although whales may be found throughout the MH1 during their winter residency, research indicates there are a,number of distinct aggregation areas where the majority of humpback whales frequent. These areas include, in order of relative siting rates: Penguin Bank; the Auau Channel and the area between Maui, Kahoolawe, and Lanai); West Hawaii (between Kailua-Kona and Upolu Point); and near the Islands of Niihau and western Kauai (Figure IH-4) (Forestell and Brown, 1992; Nitta and Naughton, 1989; Mobley, et al. 1993; Cerchio 1993). These areas tend to be in waters less than 100-fathoms, on the leeward sides of the MH1, and in areas not heavily influenced by human activities. Whale movement among the major aggregation areas has been documented by photo-identification of individual whales (Darling & Juarez, 1983; Cerchio et al., 1991); it remains unclear, however, to what extent these separate areas may be favored,by individual whales (Forestell and Brown, 1991). This boundary alternative would consist of a multi-component boundary based upon these high whale concentration areas. This alternative does not include the areas identified under section B. 1. a. of this section: Kahoolawe Island Marine Waters and the NWHI. Final Environmental Impact Statement Page 141 and Management Plan Hawaiian Islands Humpback'Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary 22 Whau Kamm Kaula Rock Yolakai 21 ........ Lanai maw Vatoolawe 20 VAns Hft .160 159 138 157 1@6 155 Figure 111-4 B oundary Alt. 2: Major areas of humpback whale distribution (modified from Forestell &-.Brown 1992) This boundary alternative would establish the Sanctuary in discrete areas in and outside the Maui County area; provide Sanctuary management focus to less than the entire State area; @ and ensure protection and priority focus on what appear to be the humpback whale's most frequented habitat areas. This boundary alternative, however, is based upon firnited whale sighting data and neglects the fact that humpback whales utilize nearly all the waters around, the MHL for transit, courting/mating, breeding, calving, and resting. More recent aerial surveys indicate that other Island waters, such as portions of Kauai, Niihau, and Oahu, also support high humpback whale concentrations (Mobley, et al., 1993; Cerchio, 1994). These, same surveys have also found significant numbers of'humpback, whales utilizing. waters deeper than 100-fathoms (Mobley et al. 1993). As whale population densities increase, other areas of the State that are not currently used may become more heavily utilized. Furthermore, this boundary alternative does not take into consideration specific environmental or behavioral factors that can modify humpback whale distributions, including increasing human use and development in some of the high whale density areas which may cause whales to shift their distribution to less disturbed habitat. Implementation of this boundary alternative is not anticipated to have adverse impacts. In-conclusion, although this boundary alternative encompasses a series of discrete areas known.to be extensively used by humpback whales, it fails to include other are-as of the MHI.that humpback whales utilize for transit, courting/mating, breeding, calving, and resting activities. This multi-component boundary does not allow for adequate protection of humpback whales and their habitat throughout their Hawaiian range or address management needs (research, education, and enforcement, among othets) uniformly throughout the State. In addition, NOAA, in consultation- with the State, determined that this boundary fails to recognize the importance of DOD military use areas and activities that are essential to national security and defense. Page 142 Final -Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary d. BOUNDARY ALTERNATIVE 3 (FIGURE- ILLS) PREFERRED ALTERNATIVE Expansion of Congressionally-designated boundary to include 100-fathorn isobath around Big Island, parts of Oahu, and eastern Kauai Figure 111-5 depicts NOAA's preferred Sanctuary boundary based on the best available humpback whale distribution data, management needs, and recognition of human uses. Figures 111-6 to III-10 depict enlarged views of each of the islands. This alternative best achieves the primary goals and objectives of the HINMSA, while facilitating compatible human uses of the area. The preferred boundary includes the submerged lands and waters off the coast of the MHI seaward from the shoreline", cutting across the mouths of all rivers and streams-- a. to the 100-fathom (183 meter) isobath adjoining the islands of Maui, Molokai, and Lanai, including Penguin Bank, but excluding the area within 3-nautical miles of the upper reaches of the wash of the waves on the shore of Kahoolawe Island; , b . to the deep water area of the Pailolo Channel from Cape Halawa, Molokai, to Nakalele Point, Maui, and southward; c. to the 100-fathom isobath around the island of Hawaii; d. to the 100-fathom isobath from Kailiu Point eastward to Makahuena Point, Kauai; and, e. to the 100-fathom isobath from Puaena Point eastward to Mahie Point, andfrom the Ala Wai Canal eastward to Makapuu Point, Oahu. The term "shoreline" is the inshore Sanctuary boundary. This was changed from the 11 mean highwater mark," which was used in the Draft EIS/MP, to be consistent with Hawaii Coastal Zone Management Program and Department of Land and Natural Resources definition. The Sanctuary's inshore boundary cuts straight across the mouths of rivers and streams. This alternative would add approximately 544 statute miles to the Congressionally designated boundary's coastal mileage of 255 statute miles. The total area included in this boundary alternative is approximately 2 100 square miles. As defined in the Hawaii Administrative Rules, Title 13, Chapter 222, shoreline means, "the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves." Final Environmental Impact Statement Page 143 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary CD >% 75 CU -@d CU x 0 CU @O Cl) CL E = CU x CO cc 10 C13 ca Cd 0 cc ILIA a juj Z all fit, 11 j!jm A] A- U1 8 z .331 Icc! 2 'a' lot Figure 111-5 Boundary Alt 3: NOAA's preferred Sanctuary boundary Page 144 Final. Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary L16 U4 4IR Ci U UA4 I P a! R y- A CO rz Is's A559 j7111 Oz lie - fl *2 W tldw 2! Figure 111-6 NOAA's preferred Sanctuary boundary Kauai Final Environmental Impact Statement Page 145 and Management Plan (IQ ThIS Mop wm produced by ft 001ce of mr planrong purposes. it 0110M not be m@OOMWKQFMVMnlOoMt&otbiwntosrpmoWWonantuaivyW@s no P.-I and smeary of the des presented cm 00 Oahu - Screw OW miltm Indefladons Cky & County of Honoluki 018, 1 SOL& InFornmon Service. 1989. IQW@ Coastal Reserves. Refuges. 6v@ctuwlm, frOM Reference M" of the Islands of H C6115tifte, - UGGS DLQ 111m, 124,000. 1 Manlowl Aram - DLNR. Rearsallon Map DLG administralon Also, 1:24.000. ISW. Mark, Facildeq - OLNRWBOR. ScKd nes. One-Hundred Fathom Mobath - Draw 1250A0, INS. Kim Point K&WEA SA MAIL 01111olhom ILF. Makus- S.P. Scale 1 0 W a Kano M.C. Coconut Island Hawaii Marino LoboatM fugs;f AblirvAntlonic AU0111 Kai M. A.F. - Air Field Kilmoho Y.C. AF.B. - Air Force Bass M-C-1111. - Marine Come Sao Hawall EW 1 11 MAS. - Naval Air Stionn KIL* - Navol one or M.N. N.A.R. - Natural Area Re"M tri KP. - National Park Nonolult; R.P. - Roolorial Park ami.s, - Goom Swouary S.P. - Stan Park lits M Airport G-RA @ Stood, 19180roallon Ar" U. P. - riderwider Park A atm.. U.N. Lagoon awa Basin W.P. - watetimt P" Barbara I H. , a La Marino &a W.S. - WIND Sanchiory in Amfac M. M IML Honolulu A More# Kai A Maisialuo Bay 0. - Basin and Is d SA /.7-., DA - Said Harbor Kakaako A&Wj, A141 'wal"AH. PAD La H. - tiorom SaFtiors Point N.A.Z. St. to VS4. L - Lsooon an K - marina I&L.C.D. - Marine Los Consamaijon DIgartoo W Akl gFg Ala T. Uwal A) wal canal (IQ R. - Rom 6 Z.H. - Smog Said Harbor B.C. - Sa*Q.Ckeb CD W - Wharf 94""- - YANDIA Club Y.C. (IQ 1..4 0 BEEIRM SOLS. "N 0 Ou an Pramme IN Pids Au 01okul WAR. 11-mllokal Airput W 2F .................................. ,,, Rif, ILA- R, IWO to Molokai and Lanai 'Nap-. -,i 'C', _gar AbbvAdkuW Cr WAR.- NOMW Ar" RWMWVO t! z 0_1 KH.S. - Nallanal Hfalodc Pm* BOLS. - Seam awwwary S.P. - Stme Park S.H. - Said Harbor ANDRaM H. - HmrbW N qw-g-11:15Z H.R. - Harbor Rwnp I --ii ULCO. - Mwkw Lee Canservation District ILM.S.E - NatkwkW Matins Sanctuary gy vgn (Exclusion nurnber for d"M exclusion atop) Scale 1:2972H 26 5 1111" This mmp was produced by da OMw of Buts Pkirwiuai Mf poww" pulposee it Smald no Do u8m of bou Intarpraudorm at other spolml analyaw bwp(W th6 lmk- SUM of go dats. InlannOw &V W= Oat" don PrOOOZO 'aa be aw accuracy of me kom OSP. 4W sourcm nal Alrporl All Inmelloo Extwed do& from TRW-REDI a Wp 6=,= S.": low. Im. and low. Comal RoswvW Refugm Sorwtumlem. and Pa" - scroon-ftOzed iram flobvenca Mar 014: Idands at H CAMOne - Uses m 124.000. :;.Wk W GdOW 1990, HVIOPOO kU"&40 1:94.000. 190. And U808 UI CO OL13 mdrr=o@ DL.NK R:2G4Gr,%bnIr n I, martno Fwm" - DLNR-DOOOFL 8.80 (Aaft Navipiond FWAKW& V Iwo. 9 A) One-Hundrad Facham kabob - De ftm NOAA N"cal Chart, (IQ 1260,0006 Im. V $0 00 ThW MV *M prodt"d by ft Oft Ior pMnrdng pwposm It 6hould nW 0-4 hd=fs or ww %WU gradyd 00 Maui a D@ Amomsaaw re" 0-4 sawracy of Va do& prosenm sourcew A MI" IfUdWindons - Ex R=".Informadon Service. INS Coasw RaGervew, Rotgas, SUMAUM &Om Relarenta UTO Ow WwWs L CaNdne - USGS LO On. 124.00 MWMQW Aron - DLNR. Aacreallon ULU somwisrawn in". 1:24.000. 1 Madne Facieses - OLNR-DOSM, am IND. One-HurKired Faffiom Isobeth - Orem 120.000. 1989. N l.11" sc KIPAWA Wed I Noul AlrW 041; U ".F 0 N" w KshWul Alrpon "EM Llhold N. to 0 kara S.P. OM F no: 1-10nau NAN. Nadonal N.P. seas. - Seablr S.P. - Stale p H. - Harbor M.LCA - Mad A. - Ramp W. - Wharf N.M.S.E. - Not (ExWusion num Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary Ui Ej low CU ce 's %1 142 z '2- 1 J 3: cz W g 0 SIM (d ZL 01 E .vI * .11? i a if w-i H gi WT al Ts cr = 3 B - ==a E6 21-Td clill iE .82 Ail ai r= 0 ui vi cd Oci 3-4 cd &Z z cz 2i A 35 Ic bc 9L z Go Figure 111-10 NOAA's preferred Sanctuary boundary Big Island Final Environmental Impact Statement Page 149 and Management Plan Part III: Alternatives and '17heir Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary Humpback whale distribution studies -indicate that whales do not extensively use harbors or small boat basins as preferred habitat. Although whales may occasionally venture into harbors and boat basins, high levels of human activity and constrained space precludes them from -carrying out normal behaviors and activities. In this 'regard, NOAA did not include major ports, harbors, and small -boat basins in this boundary alternative because evidence indicates such areas do not constitute whale habitat and because of activities that occur within harbors (both in and out of the water) that are incompatible with a National Marine Sanctuary. Such activities include, but are not limited to, vessel painting, 'shore-based boat cleaning, toxic paint releases from moored vessels, and sewage disposal. This 'exclusion also recognizes the importance of these areas to Hawaii's economy; the numerous necessary operation and maintenance activities which must occur on a routine basis; that such activities ate regulated by existing State and Federal processes. Approaches to ports and harbors and offshore anchorages are not being excluded from the Sanctuary boundary because these areas are considered humpback whale habitat. Humpback whales, especially mothers and calves, regularly use these inshore waters for nursing and resting areas. Vessels traffic in and out of ports and mooring areas will continue to. be subject to the existing 100-yard humpback whale approach regulations. The ports, harbors, and small boat basins which are excluded from the preferred Sanctuary boundary are identified below, and can be seen in Figure 111- 11. Maui Oahu Lanai Kahului Harbor Ala Wai Small Boat Basin Kaumalapau Hfrbor Lahaina Boat Harbor Manele Harbor Maalaea Boat Harbor Hawaii (Big Island) Hilo Bay Harbor Molokai Kauai Honokohau Boat Harbor Hale o Lono Harbor Hanarnaulu Bay Keauhou Bay Kaunakakai Harbor Nawiliwili Harbor Kawaihae Boat. Harbor/Small Boat Basin Under this alternative, the boundary would extend from point to point across the mouths of these harbors, as shown in Figure HI-10, and as noted by the geographic coordinates presented in Appendix K. Activities within these selected ports, harbors, and small boat basins would not be subject to Sanctuary regulations, but spillover impacts and new construction seaward of the existing harbors could be subject to Sanctuary review, regulations, and consultation. The Hawaii Department of Health classifies the above ports, harbors, and boat basins as, "class N' waters (Hawaii Administrative Rules � 11-504-06), which have lower water quality standards to allow for discharge activities associated with port and harbor operations. Although Sanctuary regulations would not apply in these areas except for discharaes outside the boundary that enter and injure a Sanctuary resource, all other Feder4 State, and county regulations relating to harbor Construction, maintenance, discharges, - and humpback.. whale approach would continue to apply. While the Sanctuary regulations do not prohibit the construction of new harbors or the expansion of existing harbors conducted in compliance with a valid Federal or State permit, plans for such development within the Sanctuary will be reviewed through NOAA's consolidated ESA Section 7 and the NMSA'* Section 304(d) consultation processes in order. to offer recommendations and comments to ensure that Sanctuary resources are adequately considered. At that, time, NOAA will determine whether to'revise the Sanctuary boundary to exclude the new. or expanded port, harbor or boat basin. Page, 150 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale National Marine Sanctuary Part III: Alternatives and their Potential consequences Hawiian Humpback Whale National Marine Sanctuary 1: Ala Waj Harbor, Ohau. 1:19,717 K 2: Hilo Harbor, Big Island. 1:116,038 3: Harbor & Small Boat Basin, Big Island 1:27,950 4: Boat Harbor & Small Boat Basin, Big Island 1:40,707 5: Bay, Big Island. 1:18,077 6: Kahului Harbor, Maui. 1:51,939 7: Lahaina Boot Harbor, Maui. 1:11,365 8: Maalea Boat Harbor, Maui. 1:15,174 9: Halo o Harbor, Molokai. 1:12,243 10: Kaumalapau Harbor, Molokai. 1:33,821 11: Kaumalapau Harbor, Ianai. 1:14,621 12: Manale Harbor. Ianai. 1:7,291 13: Ranancalu Bay. Kauai. 1:31,822 14: Harbor, Kauai. 1:58,726 Sources: Exclusion Zone Boundary - OSP & NOAA. 1995. Coastline - USGS DLG files, 1:24,000. 1983. ILL - ------------ Bale o Lane Harbor Bay Figure III-11 Boundary alt. 3: Excluded Ports, Harbors and small boat basins r 2 14 no Page 151 if Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary In addition to. the above areas, this proposed boundary alternative also does not include certain significant specified military use areas. i. Description of Military Use Areas Part of the Sanctuary's mandate is to facilitate human uses of the Sanctuary consistent with the primary purpose of protecting the humpback whale and its habitat. DOD is one of the largest users of Hawaii's marine environment. Specific areas off Kauai, Niihau, Kaula Rock, and Oahu have been identified by DOD as military, use areas where the United States and its allies conduct numerous activities that are crucial to the readiness and proficiency of the armed forces. NOAA, in consultation with DOD and the State has determined that not including these selected military use areas in the Sanctuary boundary facilitates the conduct of essential military activities while still achieving an appropriate level of resource protection. While not including such areas may be inappropriate for an ecosystem based sanctuary, it is appropriate here where the only SanctLiary resources are the humpback whale and its habitat, and where DOD remains subject to the ESA, the MMPA, and other relevant Federal environmental laws. In addition, DOD operating procedures include special precautions to ensure the protection of humpback whales prior to any training exercises or testing which may occur during whale season (see list of military activities in Appendix F)., NOAA has consulted with DOD on these activities and has determined that the precautions DOD takes (some of which include: visual and instrumental search of range sites for whales, delay testing or use of explosives in presence of whales, avoidance of whales, minimal use of live ammunition, training of personnel to adhere to enviroritmental regulations, and operation orders) are sufficient to adequately protect humpback whales and their habitat. Selected military use areas not included in this Sanctuary boundary alternative are the Pacific Missile Range Facility (PMRF), located in west Kauai; Niihau; Kaula Rock; and on Oahu Mahie Point Oust north of Kaneohe Bay) to Makapuu Point Oust south of Bellows Air Force. Base) and from the Ala Wai Canal (east of Pearl Harbor) northward along the Waianae Coast to Puaena Point Oust east of Dillingham Air Field). 1) Kauai [Barking Sands (PMRF)] and Niihau Figure 111-6 shows the area around the western half of Kauai not included in this boundary alternative (dark area is included in the Sanctuary. boundary). DOD conducts many operations at and near PMRF considered essential to national security and defense. Test ranges extend far beyond the 100-fathom. isobath, with agreat deal of test activities occurring well outside the 100- fathom isobath boundary along the western side of Kauai and the Niihau area. However, the west Kauai and Niihau areas still lie within designated PMRF use zones. Since this area is also recognized as important to humpback whales [aerial surveys and fluke-photo identification have found apparent increases in humpback whale populations in this area over the last few years (Forestell and Mobley, 199 1; Cerchio, et al., 1993; Cerchio, 1994)], the Sanctuary will continue to coordinate closely with DOD and NUTS to ensure that PMRF Command procedures remain adequate for the protection of humpback whales. 2) Kaula Rock Kaula Rock is a small island and associated coral reef located about 30 miles south of Niihau. Research indicates that humpback whales use the shallow waters around Kaula Rock for reproductive activities (Mobley et al. 1993). The degree of relative distribution of these whales is virtually unknown. Most humpback whale research has not focused on this area and is the result of "spillover" research from Niihau or from other projects around Kaula Rock. In the past, DOD has used Kaula Rock as a bombing range. Though the island is no longer used in this way, some military training activities still occur in the vicinity and the island remains in a designated military Page 152 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and 'Meit Potential Consequences National Marine Sanctuary use zone. Also, Kaula Rockis extremely isolated, and effective management of the island would be difficult given current fiscal.and human resource constraints. 3) Oahu Figure 111-6 depicts the areas around Oahu which are not included in the Sanctuary's preferred boundary (dark areas are included in the Sanctuary boundary). DOD and its allies conduct numerous operations in the Pearl Harbor area and along the Waianae Coast (west to northwest 0 'ahu) considered vital to national security and defense. The Marine Corps also conducts'numerous training activities in the Kaneohe Bay/Bellows Air Force Base area on eastern Oahu vital to national security and defense. DOD takes special precautions to ensure the protection of the whales prior to any training exercises or testing which may occur during whale season. The Sanctuary will continue to coordinate closely with DOD and NMFS to ensure that Naval and Marine Command and operational procedures remain adequate for the protection of humpback whales. ii. Conclusion Figures from Part 11 (11-9 through 11-15) also indicate that humpback whales are found throughout the MHI (see Part H.B. for'a more thorough discussion of humpback whale distribution). These data represent static observations of humpback whales and the movement of individual whales over time. Researchers are gaining evidence that hurripbacks are able to swim the length of the MHI in less than a week, though the frequency or relative amount of interisland migration is unknown. Cerchio (et al. 199 1, and 1993) photo-identified a whale off Kauai and a collegue of Cerchio found the same whale seven days later off the Big Island. These studies also showed that humpback whales migrate between the Islands in either direction, though the degree and social structure of humpback inter-island movement is not ftilly understood. However, it is accurate to say that humpbacks are distributed throughout the MHI and move throughout the Islands during the whale season. Some areas of the state tend to show higher concentrations of humpback whales than others (i.e., the Kohala Coast of Big Island versus the Hilo side). While the degree of habitat preference is not completely understood, humpback whales are known to distribute themselves in warm, shallow waters (generally less than 100-fathoms) often on the leeward sides of the Islands. Distributions vary.according to an individual whale's gender and age and the time of year. For example, mother-calf pairs have been found in waters less than 30-fathoms (360 feet) while the calf is very young (Glockner-Ferrari @nd Ferrari, 1987). As the calf matures and gains strength and the ability to swim more efficiently, the pair will gradually shift habitats to deeper waters. In contrast, male humpback whales and unaccompanied females (no calf or escort) utilize nearshore waters much less frequently than mother-calf pairs, tending to be found in deeper waters, out to the 1000-fathom isobath and beyond. Human presence and disturbances may also affect humpback whale distribution and habitat use. It has been hypothesized' that whales may move from previously "preferred" habitats to less disturbed sites because of * increased boater use, coastal development, and other human disturbances (Darling & Juarez, 1985; Cerchio, et al. 1991). Clearly, there are many complex social, environmental, and human factors that contribute to the overall, humpback whale distribution patterns and habitat use. Any comprehensive and coordinated management program must take all of these factors into consideration to be successful. Numerous complaints were heard throughout the public scoping meetings that whale harassment occurs off Kauai, Oahu, and western Hawaii (Big -Island) ' and that there is little enforcement presence. Apparently, many individuals have the perception that the NMFS whale approach regulations apply only in Maui County. While it is true that in the past some of the rules Final Environmental impact Statement Page 153 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary (e.g., NMFS's 300-yard approach regulations) applied only to designated cow/calf areas off of Maui and Lanai, current approach regulations (i.e.,'NMFS 100-yard approach regulations) apply everywhere within Hawaii's 200-mile eiclusive economic zone. On islands other than Maui, many individuals claimed they were not aware of the separation rules and therefore, in the absence of information, would approach whales closer than 100 yards. In order to achieve greater compliance with existing -humpback whale approach regulations, better diss'ernii nation of information and educational efforts are required on a Statewide basis. Both whales and humans use the waters within the MHI. As both the human and the whale populations ,in Hawaii continue to increase and expand to other parts of the State, there w .ill be a need to consider marine areas other than Maui County for potential management purposes. In conclusion, this boundary alternative proposes to expand the Congressionally- designated boundary to include waters around parts of all of the MHI (excluding Kahoolawe). NOAA selected this boundary as the preferred alternative because it more accurately reflects the current understanding of humpback whale distribution and habitat use in Hawaii, res onds to p statewide management needs (including research and * long-term monitoring, education and outreach, coordination with statewide agencies., and enforcement of regulations) and recognizes the human uses of the Sanctuary, including those activities DOD considers essential to national security and defense. Implementation of this boundary alternative is not anticipated to have adverse impacts and any potential positive or negative socio-economic impacts will be dispersed throughout the areas included in this boundary. e. BOUNDARY ALTERNATIVE 44FIGURE 111-12) Expansion of Congressionally -designated boundary to include 100-fathom isobath around all MH1 and Kaula Rock As depicted in Figure 111- 12, this boundary alternative is based on the most recent availabi 'e data and management needs for the humpback whale. This alternative includes more area to fulfill the HE%;MSA's primary goal to protect humpback whales and their habitat. The boundary includes Kaula Rock, Niihau, Kauai, Oahu, the existing four-Island area, and the Big Island of Hawaii. This alternative does not include the areas identified under section B. I. a. of this section: Kahoolawe Island Marine Waters and the NWHI. Wffile this alternative is similar to the preferred alternative in having -a statewide focus, it includes the waters within I 00-fathoms of Niihau and Kaula Rock, as well as those military use areas around Kauai and Oahu. The boundary would extend seaward from the shoreline: a. to the 100-fathom (183 meter) isobath adjoining the islands of Niihau, Kauai, Oahu, Maui, Molokai, Lanai, and the Big Island (Hawaii), but excluding the area within 3-nautical miles of the upper reaches of the waves on the shore of Kahoolawe Island; b . to the 100-fathom. isobath around Kaula Rock; and c. to the deep water are of the Pailolo Channel from Cape Halawa, Molokai, to Nakalele Point, Maui, and southward. The total area included in- this boundary alternative is approximately 2600 square miles. This boundary recognizes recent humpback whale distribution data which show that humpback whales are distributed throughout the MHI and around Kaula Rock (Mobley et al. 1993). Humpback whale use of the Kaula Rock area has been noted in other reports (Nitta and Naughton, 1989; Townsend, 1991; Mobley et al. 1993). * This boundary also recognizes that Kaula Rock, Niihau, and western Kauai areas -are frequented.by humpback whales. Aerial surveys and fluke- photo identification have found apparent increases in the number of humpback whales in this 'area over the last few years (Foriestell and Mobley, 1991; Cerchio, et.al., 1993; Cerchio, 1994). This Page 154 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary boundary would provide a more uniform boundary that would take into consideration all areas of humpback whale use. Nrlhau 4 Moloks'i Knula Rock LWMIS .1 maul Kaho*o1swe Hawarl waten to ft 100 famm off ; the Wain H2Wad=an1SWnd5 excJuding the watws off of K&MO'01-ws Figure 111-12 Boundary Alt. 4: (main Hawaiian Islands shoreline to the 1fathom isobath Utilizing the same humpback whale distribution data noted in the final four paragraphs of the alternative "Y section, this Sanctuary boundary alternative allows for protection of humpback whales and their habitat now and in the future uniformly throughout the MHI. As both the human and the whale populations in Hawaii continue to increase, there will be a need to consider all marine areas for potential management purposes. The expanded area recognizes that humpback whale distribution and habitat use is not static and is responsive to numerous social, environmental, and human influences. This boundary would also provide more consistency for marine users of the State than would a piecemeal boundary. A uniform statewide boundary would also best achieve the mandate,to promote comprehensive and coordinated management for whales in their Hawaiian habitat. Although this boundary alternative more accurately reflects the curreht understanding of humpback whale distribution and habitat use than does boundary alternative "Y' -- the preferred alternative -- NOAA, in consultation with the State, determined that from a management perspective, this boundary fails to recognize the importance of DOD military use areas and activities that are essential to national security and defense. Moreover, this boundary alternative is slightly larger in scope than boundary alternative "Y', and includes the marine waters around the islands of Niihau and Kaula Rock@ The inclusion of these extra marineoLreas, which are remote and difficult to access, could hinder effective resource management efforts in these areas and detract management efforts from other parts of the MHI. Consequently, this boundary alternative is not the preferred alternative. Implementation of this boundary alternative is not anticipated to have adverse impacts. Any potential positive or negative socio-economic impacts will be dispersed throughout the areas included in this boundary. Final Environmental Impact Statement Paze 155 and Management.Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary L BOUNDARY ALTERNATIVE 5 (FIGURE 111-132 Expand Congress ionally-designated boundary to include 1,000-fathom isobath around the MHI It is generally agreed among researchers that humpback whales are primarily distributed in waters less than 100-fathoms, (Nitta and Naughton, 1989; Mobley et al. 1993). In recent years, however, it has become evident that a significant number of humpback whales can be found in deeper waters outside the 100-fathom isobath, which may reflect greater efforts and new methodologies used to survey beyond the 100-fathom isobath. While the majority of humpback whale sightings remain in waters less than 100-.fathoms, approximately 27 percent of recent survey sightings indicate the presence of whales in waters between the 100-fathom and the 1,000-fathom isobath (Mobley et al. 1993). This boundary alternative proposes to extend the boundary from the shoreline to the 1,000- fathom isobath surrounding the MHI of Niihau, Kauai, Oahu, Maui, Molokai, Lanai, the Big Island (Hawaii) and Kaula Rock in order to provide a Sanctuary boundary inclusive of the entire humpback whale Hawaiian habitat. This alternative does not include the areas identified under section B. La of this section: the waters around Kahoolawe Island and the NWHI. As depicted in Figure IH-13, this alternative includes waters which are or may be important humpback whale use areas, particularly as the whale and@huffian populations increase and there is a potential need for "buffer space" outside the 100-fathom isobath. The boundary includes mostly, but not entirely, Federal waters, and would require the same Federal/State partnership existing under the Congressionally-designated Sanctuary. N il Kaula Rock AM Hawaii Figure 111-13 Boundary Alt. 5: main Hawaiian Islands shoreline to the 1000 fathom isobath This boundary extens 'ion would not alter the overall focus of Sanctuary management, as currently identified. The boundary would include more marine waters frequented by fishers (commercial, traditional/subsistence, and recreational), but not necessarily change the management I regime. This boundary also includes military use areas since this boundary alternative is based Page 156 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences i*4ational Marine Sanctuary upon a contiguous concept that incorporates most of the known humpback whale habitat in the MHL In conclusion, this boundary alternative includes the most comprehensive area reflecting recent data showing that humpback whales are found in waters both within and outside the 100- fathom isobath. Despite the,advantage of including nearly all of the humpback whale's Hawaiian habitat in the Sanctuary boundary (management and protection), however, this boundary was not selected as the preferred alternative because it would likely exceed the resources (financial and staffing) of the Sanctuary program needed to effectively manage the site. Most of the proposed area included in this boundary are located significantly offshore (e.g. up to 40 miles in some places). Research and enforcement activities would be dispersed throughout this area and may strain the program's ability to effectively manage nearshore areas of the State. Since most human and wh@le activities (as well as interactions) occur in relatively shallow waters (generally less than 100-fathoms), Sanctuary management efforts -should focus in these areas. In addition, this boundary alternative fails to recognize the importance of DOD military use areas and activities that are essential to national security and defense. Implementation of this boundary alternative is not anticipated to have numerous adverse impacts. Any potential positive or negative socio-economic impacts will be dispersed throughout the areas included in this boundary. 2. Regulatory Alternatives a. Background One purpose of the Sanctuary is to manage human uses of the Sanctuary consistent with the HINMSA and the National Marine Sanctuaries Act (NMSA). Section 2306 of the HINMSA requires NOAA to issue a comprehensive management plan and implementing regulations to achieve the policies and purposes for which the Sanctuary was designated. The. management plan must also facilitate all public and private uses of the Sanctuary (including uses of Native Hawaiians) consistent with the primary purpose of protecting humpback whales and their habitat. Additionally, section 304(a)(1)(A) of the NMSA authorizes NOAA to issue proposed regulations that may be necessary and reasonable to implement the designation of a National Marine Sanctuary. Therefore, any regulations issued to implement the Sanctuary designation should be necessary and reasonable to achieve the purposes and policies of the HINMSA; primarily to protect the humpback whale and its habitat, while allowing for human uses compatible with this primary purpose of the Sanctuary. Further, Section 304(c) of the NMSA [ 16 U.S.C. � 1434(c)] states that:. 1) Nothing in this title shall be construed as terminating or granting to the Secretary the right to terminate any valid lease, permit, license, or right of subsistence use or o f access that is in existence on the date of designation of any national marine sanctuary. (2) 77ze exercise of a lease, permit, license, or right is subject to regulation by the Secretary consistent with the purposes for which the sanctuary i .s designated., Unlike most other National Marine Sanctuaries, which, are ecosystem-based, the HUBVNMS is unique in that Congress designated it primarily to protect the humpback whale and its habitat. However, the HINMSA also provides for the Sanctuary to identify other marine resources of national significance for possible inclusion in the Sanctuary. The scope of the management plan and the regulatory alternatives reflect these provisions. Regulatory alternatives are available under the NMSA and the HINMSA to assist in the management and protection of Sanctuary resources. Sanctuary regulations strive to complement. existing Federal, State, or county authorities where those authorities and regulations do not adequately protect Sanctuary resources or where they need to be supplemented to ensure Final Environmental Impact Statement Page 157 and Management Plan Part III: Alternatives and17heir Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary coordinated and compreh ensive protection for humpback whales and their habitat. Generally, NOAA uses the minimal amount of authorities to regulate a narrow range of activities that presently or potentially threaten Sanctuary resources or uses while encouraging compatible uses of the marine environment. At this time, the following human activities have been identified as having possible impacts to humpback whales or their habitat (cause-effect relationships have not been determined in many cas 'es): direct collision by marine ivessels; human approaches and/or harassment of humpback whales; whale disturbance or displacement caused by sound; introduction and/or persistence of pollutants and pathogens from waste disposal; point and non-point source pollution; and habitat degradation or loss associated with coastal development (Nitta and Naughton, 1989; NMFS 1991; Townsend 1991). For activities in the State waters of the Sanctuary, there are a number of existing State administrative mechanisms by which the Sanctuary may participate to make recommendations on issues relevant to the protection and management of Sanctuary resources. The Sanctuary may (1) participate in the development of State regulations by providing public comments and technical assistance when requested, addressing Sanctuary concerns during the public comment period-, (2) request the opportunity to review and comment on any, permit application for the conduct of an activity that may impact the Sanctuary or its resources at the earliest stages of consideration; '(3) request consultation with the State staff reviewing agency to discuss in detail a pennit under consideration and NOAA's interest and recommendations in the matter; (4) participate in a hearing to examine an applicant, present evidence, and if requested by the penrlit granting authority, to prepare draft findings of fact and conclusions of law; (5) seek reconsideration of a State pen-nit and request the Governor to review the@ particular problem. These mechanisms may be utilized in conjunction with any of the regulatory alternatives listed below. Six regulatory alternatives are discussed below. The alternatives are presented in "bundles" of regulations proposed to protect Sanctuary resources and ensure comprehensive and coordinated conservation and management of the Sanctuary. The alternatives range from ','no additional Sanctuary regulations" to a full-scale regulatory regime to protect and manage an ecosys .tem-based Sanctuary. In each case, the regulatory alternative also discusses a -management philosophy or strategy to which the regulations would be applied, and briefly compares the impacts to resources and uses. b. -REGULATORY ALTiRNATIVE I Status quo -- no Sanctuary regulations. Neither incorporate existing regulations nor promulgate new Sanctuary prohibitions i. D escription of Proposed Regulatory Action Under this alternative, the Sanctuary would play a low-key role, relying entirely on existing State, Federal, and county programs to serve as the regulatory and enforcement authorities protecting humpback whales and their habitat. Primarily, this includes the authorities of the NMFS which has responsibilities under the ESA and the NUMPA. In addition to regulating the taking and harassment of humpback whales and other marine mammals, NMFS consults under Section 7 of the ESA to comment and make recommendations' on the potential impacts of Federal or Federally- funded or authorized projects and activities on humpback whales and their habitat. Further, under Section 304(d) of the NMSA [16 U.S.C. �1434(d)], the Sanctuary also consults and makes recommendations on Federal activities likely to destroy, cause.of the loss of, or injure Sanctuary resources. Page 159 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and 'Meir Potential Consequences National Marine Sanctuary State and county agencies also have a number of ongoing programs which recognize the importance of the humpback whales and their habitat. For example, in 1976, the humpback whale was designated by the Hawaii State Legislature as the Official State Marine Mammal. In 1990, the Hawaii Department of Transportation passed a law regulating the use of thrill craft in certain cow- calf areas while the whales are present in Hawaiian waters. The State Department of Land and Natural Resources (DLNR) issues permits for NMFS-approved research activities in State waters. There are also several programs that address water quality issues in Hawaii waters. The State Department of Health (DOH) administers the National Pollutant Discharge Elimination System under the Clean Water Act in State waters. In addition, DOH and the Hawaii Coastal Zone Management Program are jointly developing non-point source pollution programs. (See discussion on existing authorities in Part ILE). Many individuals. have expressed concern that. there is sufficient existing authority to protect humpback whales and their habitat and that no new authorities or regulations are required at this time. They are concerned about overlapping administrative authorities, financially wasteful duplication of effort, and perhaps more confusion in an already highly-regulated environment. The argument is made that the Sanctuary can best focus its initial efforts on assisting the overall goals of providing better and more focused research, education, and information about the resources and applicable regulations which in turn would greatly assist the overall enforcement program. Under this alternative, therefore, the Sanctuary would not promulgate new regulations or incorporate existing authorities as Sanctuary regulations. NOAA/SRD would consult with NMFS, State agencies, and others to monitor the status of humpback whales and their habitat. The Sanctuary would principally rely on section 304(d) of the NMSA, in which Federal agency actions internal or external to the Sanctuary, including private activities authorized by licenses, leases, or permits, that are likely to destroy, cause, the loss of, or injure any sanctuary resource are subject to consultation with the Secretary of Commerce. The Sanctuary could make recommendations on such activities, including requesting the activity be conducted outside of the Sanctuary. The Sanctuary would have no direct regulatory or enforcement authority over such activities, and could generally not prevent an activity from occurring, or condition an activity to be conducted in a manner that protects Sanctuary resources. Also, non-Federal activities that may harm Sanctuary resources that do not require a Federal license, lease, or permit are not subject to section 304(d), and the Sanctuary would not have consultation authority under the NMSA to review such activities and make recommendations to ensure the protection of Sanctuary resources. The Sanctuary would also rely on section 312 of the NMSA which makes any person who destroys, causes the loss of, or injures any Sanctuary resource liable for response costs and damages. While there are non-regulatory mechanisms under State law by which the Sanctuary may seek to mak@ recommendations to protect Sanctuary resources, they would not, by themselves, enable the Sanctuary to comprehensively and uniformly manage and protect the humpback whale and its habitat throughout the boundaries of the Sanctuary. Rather, the Sanctuary would have to pursue problems on a case-bY7case basis, relying on existing State processes and remedies that may not be timely or adequate, and do not guarantee that the Sanctuary's concerns are addressed. Further, the some of these State processes may not be available to the Sanctuary because of legal restrictions on the Federal government. Also, the existing non-regulatory mechanisms under. State law do not apply to activities in Federal waters and. the Sanctuary would have to use other mechanisms to address such activities. Finally, even if full reliance on State mechanisms is viable' the Sanctuary's role with respect to activities in State waters that impact the humpback whale and its habitat would be solely that 6f a commentor on State permits and legislation. This limited role may fail to Mfill the responsibilities Congress, in, the HINMSA, imposed upon NOAA as the Federal trustee of nationally significant resources -- the humpback whale and its habitat, to comprehensively manage and protect these resources. Final Environmental Impact Statement Page 159 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary ii. Impact to Resources Management, coordination, and recovery efforts would continue to be carried out by NMFS under the ESA and MMPA, and by other relevant State and Federal agencies for the protection of the humpback whales habitat. No additional impacts to the resources would be expected. The additional efforts of the Sanctuary Program to focus on the non-regulatory aspects associated with coordination, education, interpretation, research, and long-term monitoring would provide some additional benefits in the way of the lessening the likelihood of taking or harassment undertaken by individuals due to a misunderstanding or ignorance of the laws. iii. Impact to Use rs The status quo would have no additional impact on users, who would remain under current standards and authorities. iv. Conclusions Under this alternative the Sanctuary would have no direct regulatory or enforcement authority and limited ability to influence decision making, other than commenting or making recommendations on Federal, State, or county actions, permits or State legislation, or ensure that comprehensive management considerations are taken into account. This alternative has the benefit of not adding an additional regulatory regime and would satisfy the concerns of many who have commented throughout the public participation process. It does not, however, provide the Sanctuary with the authority to comprehensively, uniformly, and directly protect humpback whales and their habitat. Also, relying solely on existing authorities may conflict with Congress' express findings in the HINMSA thatexisting regulatory and management programs are inadequate and that authority is needed for comprehensive and coordinated conservation and management of humpback whales- and their habitat that will complement existing regulatory authorities. c. REGULATORY ALTERNATIVE 2 Adopt, existing NMFS humpback whale approach regulations to provide additional authority to enforce provisions of law under the NMSA; provide Sanctuary support to the full implementation of those laws; promulgate no new, substantive regulatory prohibitions. i. Description of Proposed Regulatory Action' This alternative would incorporate as Sanctuary regulations, the following humpback whale approach regulations that exist under the auspices of the MMPA and the ESA: Approaching, or causing a vessel or other object to approach, within the Sanctuary, by any means, within 100 yards of any humpback whale except as authorized under the Marine Mammal Protection Act, as amended (NIMPA), and the Endangered Species Act, as amended (ESA); Operating any aircraft above the Sanctuary within 1,000 feet of any humpback whale except when in any designated flight corridor for takeoff or landing from an airport or runway or as authorized under the MIMPA and the ESA; Taking. any humpback whale in the Sanctuary, except as authorized under the MMPA and/or the ESA; Possessing within the Sanctuary (regardless of where taken, moved, or removed from) a humpback whale (living or dead) taken in violation of the MMPA or the ESA. Page 160 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary As Sanctuary regulations, NOAA may enforce violations of these approach restrictions under the authority of the NMSA,,thus providing the Sanctuary with a management tool to directly protect the humpback whale, and to' monitor and -assess the number and type of violations within the boundaries of the Sanctuary. Also, the incorporation of these regulations under the NMSA authority allows for increased civil penalties which could be imposed on violators and serve as a greater deterrent to non-compliance, and therefore increased protection for the humpback whale. Further, penalties recovered under the NMSA would be directed back into the Sanctuary to support Sanctuary activities and programs. Although this enforcement capability is provided by the Sanctuary, the primary focus o 'f the enforcement program is on voluntary compliance through education and outreach efforts. See section III(b) or V(d)(4) on enforcement. The Sanctuary regulations proposed in this alternative focus on activities that directly.affect the humpback whale. By incorporating those regulations routinely enforced by the NMFS, the Sanctuary can provide a more effective enforcement capability for protecting and managing the humpback whale in the Sanctuary. Another advantage of the regulations proposed in this alternative is that they do not add a duplicative layer of permitting or'approvals necessary to conduct activities that directly affect humpback whales. As the regulations are incorporated, those activities conducted in compliance with a valid permit or authorization under the MMPA or the ESA would not require a separate Sanctuary permit because they would be in compliance with the Sanctuary regulations. The Sanctuary has developed a Memorandum of Understanding (MOU) with NMFS (see Appendix E) to coordinate and consult on permits and authorizations issued under the MMPA or the ESA by which Sanctuary concerns and conditions will be incorporated directly into the NMFS permit. Thus, the Sanctuary regulations proposed in this alternative complement the existing NMFS authorities. This alternative proposes to supplement NMFS humpback whale approach regulations that protect only the humpback whale. Amendments made to the M!V1PA in 1994 provide NMFS with greater authority to protect marine.mammal habitat (MMPA Amendments of 1994, Public Law 103-238, April 30, 1994). These amendments mandate the creation of Regional Scientific Review Groups to look at impacts of human and environmental factors on marine manimals, and allows the agency- to develop and implement conservation plans to alleviate such identified impacts. The Sanctuary would work with NMFS and other agencies and researchers in Hawaii to gain a better understanding of the potential impacts and threats to humpback whales in Hawaii. The Sanctuary would also work closely with existing Federal, State, and county authorities to protect the habitat of the humpback whale, as required by the H-INMSA. Inan effort to support a comprehensive regulatory/enforcement program to achieve voluntary compliance with regulations that protect the humpback whale and its habitat, the Sanctuary would develop outreach programs to ensure that marine resource users are better informed and educated about the regulations; work on the development of an acceptable monitoring program .with respect to compliance with a pertinent authorities; and assist and cooperate in any efforts to make improvements to laws and regulations as appropriate through supporting better research and information on which to base management decisions. This alternative builds on the status quo alternative, by which the Sanctuary will rely on existing authorities for the protection of the humpback whales' habitat, but would add direct regulatory authority under the NMSA to protect humpback whales. ii. Impact to Resources This alternative would offer more protection to the humpback whales because the Sanctuary would have direct regulatory and enforcement authority and a greater ability to influence decision making. Enhanced resource protection also results from the increased deterrence value associated with the potential for increased penalties under the NMSA. Essentially, incorporating the NMFS humpback whale approach and taking regulations provides the Sanctuary with the authority to, Final Environmental Impadt Statement Page 161 and Management Plan Part III: Alternatives and '17heir Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary ensure greater compliance with these regulations. In addition, enhanced coordination and utilization of the expertise of other State and Federal authorities *would continue to provide beneficial impacts to the humpback whale population. The additional efforts of the Sanctuary Program to focus on the non-regulatory aspects associated with (@oordination, education, interpretation, research, and long-term monitoring would provide additional benefits in the way of lessening the likelihood.of taking or harassment by individuals due to a misunderstandincr or i-norance of the laws. iii. Impact to Users No new additional substantive obligations are imposed under this alternative since marine users are currently subject to the NMFS humpback whale approach regulations. Consequently, there will generally be no negative socio@economic impacts to users of the Sanctuary. There may be greater socio-econornic impacts on persons in violation of the approach regulations because the maximum Sanctuary civil penalty- could be higher than civil penalties under the MIMPA and ESA. An incidental benefit to the Sanctuary and its users could result because monies recovered as penalties for unlawful activities would be used for Sanctuary management and improvement. iv. Conclusions This regulatory alternative, is not the preferred alternative for many of the same reasons regulatory alternative "L" While the Sanctuary will have regulations that,enhance protection for the humpback whale, the Sanctuary would have no direct regulatory or enforcement authority to comprehensively and uniformly protect the humpback whales' habitat throughout the Sanctuary boundary. d. REGULATORY ALTERNATIVE 3 PREFERRED ALTERNATIVE Adopt a) existing NMFS humpback whale approach regulations and b) additional State and Federal prohibitions governing the discharge of materials into the. Sanctuary and alteration of the seabed of the Sanctuary; allow such -activities if authorized/permitted by appropriate Federal or State authorities; promulgate no new substantive Sanctuary prohibitions. i. Description of Proposed Regulatory Action This alternative would incorporate as Sanctuary regulations, the following humpback whale approach regulations that exist under the auspices of the MMPA and the ESA: Approaching, or causing a vessel or other object toapproach, within the Sanctuary, by any means, within 100 yards of any humpback whale except as authorized under the Marine Mammal Protection Act, as amended (NMT& and the Endangered Species Act, as amended (ESA); 0 Operating any aircraft above the Sanctuary within 1,000 feet of any humpback whale except when in any designated flight corridor for takeoff or landing from an airport or runway or as authorized under the MMPA and the ESA; 9 Taking any humpback whale in the Sanctuary, except as authorized under the MMPA and/oi the ESA; 0 Possessing within the Sanctuary (regardless of where taken, moved, or removed from) a humpback whale (living or dead) taken in violation of the MMPA or the ESA. Page 162 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary In addition to the humpback whale approach and "take" regulations listed above, the following regulation would be issued to ensure adequate protection for humpback whale habitar. 0 The following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted: 0) Discharging or depositing any material or other matter in the Sanctuary; (ii) altering the seabed of the Sanctuary; or (iii) discharging or depositing any material or other matter outside the Sanctuary if the discharge or deposit subsequently enters and injures a humpback whale or humpback whale habitat, provided that: such activity requires a Federal or State permit, license, lease, or'other authorization, and (1) is conducted without such permit, license, lease, or other authorization; or (2) is conducted not in compliance with the terms or conditions of such permit, license, lease, or other authorization. Finally, the Sanctuary would also add the following prohibition to ensure the facilitation of Sanctuary enforcement activities, which enhance resource protection: Interfering with, obstructing, delaying or preventing an investigation, search, seizure or disposition of seized property in connection with enforcement of either of the Acts or any regulations issued under either of the Acts. In designating the Sanctuary, Congress found that "the. existing State and Federal regulatory and management programs applicable to the waters of the MHI are inadequate to provide the kind of comprehensive and coordinated conservation and management o@ humpback whales and their habitat that is available wider the [NMSA]. " Further Congress found that "[authority] is neededfor comprehensive and coordinated conservation and management of humpback whales and their habitat that will complement existing Federal and State regulatory authorities" [HINMSA, sections 2302(l 1) and 2302(12)]. Thus, while there are an abundance of existing Federal, State, and county authorities with overlapping -regulatory jurisdiction within the Sanctuary (see Part II.E.3), they are not coordinated or focused specifically on the protection and management of the humpback whale and its habitat. The SAC will provide the forum for coordinating regulatory agencies, interest groups, Native Hawaiians, and others in the framework of protecting humpback whales and their habitat. Such will also contribute to decision-making regarding permitted activities within the Sanctuary, by providing advice and recommendations to the Sanctuary Manager. In addition to the benefits described in regulatory alternative "2," the regulations proposed in this alternative seek to complement existing protection for habitat from the adverse impacts that could result from degradation of water quality or physical alteration of the seabed. Greater resource protection will ensue from this alternative because this habitat regulation provides the Sanctuary with direct regulatory and enforcement authority over illegal discharge or deposit, or alteration of the seabed activities that could adversely impact the humpback whale's habitat. Enhanced resource protection would also result from the increased deterrence value associated with the potential for increased penalties under the NMSA. As discussed in the Introduction to this section, the HIHV*TNMS is unlike any other National Marine Sanctuary in that its primary purpose is to protect the humpback whale and its habitat. In light of the limited scope of the Sanctuary, the narrow proposed definition of what constitutes the humpback whale's Hawaiian habitat, and in the 'absence of better scientific information on the specific effects of the impacts of various human activities on this habitat, NOAA finds that at this time it is not necessary to add independent Sanctuary regulatory and administrative Final Environmental impact 7tatement Page 163 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian, Islands Humpback Whale National Marine Sanctuary review and approval processes to protect the humpback whale habitat, This is particularly the case since the MMPA was recently modified to expanded the role of NMFS in managing and protecting marine mammal habitat. Section 117 of the M1VIPA establishes "Scientific Review Groups" (one of which is specific to the Pacific, including Hawaii) which are required to advise the Secretary of Commerce on, among other. things, "the actual, expected, or potential impacts of habitat destruction, including marine pollution and natural environmental change, on specific marine mammal species or stocks, and for strategic stocks (e.g., endangered stocks), appropriate conservation or management measures to alleviate any such impacts." Also, Section 112 of the NIMPA was revised to include, "If the Secretary determines ... that impacts on rookeries, mating .grounds, or other areas of similar ecological significance to marine mammals may be causing the decline or impeding the recovery of a strategic stock (e.g., endangered stocks), the Secretary may develop and implement conservation or management measures to alleviate those impacts..." The Sanctuary will work closely with NMFS to ensure that humpback whale habitat management is accomplishe'd in a coordinated and complementary manner. This alternative recognizes that there are a number of different Federal and State authorities that regulate activities in or near the Sanctuary that may adversely impact water quality or the seabed (the humpback whale's habitat). Existing authorities applicable to water quality and the seabed generally require applicants to meet certain standards and take rriiiigative actions which in the absence of additional data, are consistent with the purposes of the HINMSA to protect this habitat (e.g., water quality standards, reduced noise from construction). These authorities include: (1) The Fish and Wildlife Coordination Act (FWCA); (2) the Clean WaterAct (CWA); (3) the Rivers and Harbors Act; (4) Title I of the Marine Protection, Research, and Sanctuaries Act; (5) the Act to Prevent Pollution from Ships; (6) the Oil Pollution Act (OPA); (7) the Outer Continental Shelf Lands Act; (8) Hawaii Revised Statute (HRS) Chapters 34213-51, 343, 205, 205A, 266-3. and 190D; and (9) Hawaii 'Administrative Rules, Title 13. (See Part-H.E and Part V.G. of the Draft EIS/MP). During scoping meetings, inter-island meetings, and technical consultations, Federal and State agencies and others identified that problems exist with respect to sufficient resources and capabilities to coordinate, implement, and enforce violations of the various existing laws. Further, these laws have broader or different mandates than that of the Sanctuary.' This regulatory alternative, therefo*re, balances the goal of adding necessary authority which complements existing Federal and State regulatory programs with jurisdiction in the I Sanctuary with the need to comprehensively and uniformly manage and protect the humpback whale and its habitat. The regulations proposed in this alternative will complement existing authorities by avoiding a duplicative Sanctuary permitting or approval process for discharge or deposit, or alteration of the seabed activities in the Sanctuary. Further, the regulations enable the Sanctuary to supplement existing aut 'horities by adding an independent enforcement mechanism under the authority of the NMSA for unlawful or, unpermitted discharge or alteration. of the seabed activities in the Sanctuary. Regulations proposed in this alternative will also provide the authority for penalties under the NMSA, and therefore greater deterrence, for activities conducted in violation of a State or Federal permit, or for an unpermitted activity. Further, penalties recovered under the -NMSA may be used for the benefit of the Sanctuary and its users. Disadvaniages of the regulations proposed in this alternative are that by providing the Sanctuary with only a mechanism to enforce discharge or deposit, or alteration of the seabed activities conducted without or not in compliance with a required Federal or State permits, the Sanctuary has limited independent authority to prevent or stop these types of activity from being conducted in the Sanctuary. Further, there will be no requirement in the proposed regulations for persons conducting activities to obtain a Sanctuary permit, certification, or authorization by which the Sanctuary can impose additional conditions to protect the humpback whale's habitat, if necessary. Similarly, the Sanctuary will be unable to require other agencies to impose any such Page 164 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary conditions to a Federal or State pen-nit for discharge, deposit, or alteration of the seabed activities in order to further protect the humpback whale and its habitat. However, the Sanctuary may use existing State mechanisms, described in the Introduction, to review and make recommendations on activities at the early stages of a proposal. Combining this management approach with the ability to enforce non-compliance of valid Federal or State permits, or unlawful discharge or alteration of the seabed. activities will provide a comprehensive approach to protecting the humpback whale's habitat without duplicating existing authorities. Further, at this time evidence indicates that there, are no known unregulated discharge or deposit, or alteration of the seabed activities identified as occurring in the Sanctuary that adversely impact the humpback whale's habitat. Finally, as previously stated, in the absence of additional scientific information'to the contrary, it appears at this time that the existing regulatory authorities in place adequately protect water quality and the submerged seabed as they relate to th6 humpback whale's habitat. The research program proposed in the Management Plan will add to the base of scientific information on the humpback whale's habitat. To adequately implement this alternative, and provide more comprehensive, coordinated management and protection of the humpback whale and its habitat,, the Sanctuary will enter into formal agreements (e.g. Memoranda of Understanding) with Federal and State agencies to allow the Sanctuary to review and propose recommendations on the activity early ori in the penmtting process. This is consistent with the type of agreement that the Sanctuary and NMFS has prepared for permits and authorizations issued under the MMPA and ESA. Thus, while not having veto authority over activities that are conducted in compliance with valid Federal or State permits, a process will be in place to ensure Sanctuary concerns are addressed. Again, this is based on the determination that existing -authorities are in place to generally protect water quality and the physical submerged lands in the Sanctuary. The MOUs also provide a reporting provision whereby the Sanctuary may keep track of and monitor the types of activities that are being conducted in its boundaries, with the perspective of how such activities impact humpback whales and their habitat. ii. Impact to Resources Increased protection shall be afforded the humpback whale and its habitat because supplemental education and enforcement capabilities will be available under the NMSA and a greater deterrence value associated with the potential for NMSA penalties which.may be used to. manage and improve the Sanctuary. Sanctuary regulations to protect the humpback whale and its habitat provide the Sanctuary with a tool to ensure greater overall compliance with existing authorities. In addition, greater comprehensive coordinaoon with and utilization of the expertise of other State and Federal authorities would provide beneficial impacts to the humpback whale population. The additional efforts of the Sanctuary Program to focus on the non-regulatory. aspects associated with coordination, education, interpretation, research, and long-term monitoring would provide additional benefits in the way of lessening the likelihood of taking or harassment undertaken by individuals due to misunderstandings or ignorance of the law. Other resources may incidentally benefit from decreases in non-compliance with existing permits designed to safeguard against marine pollution and habitat destruction. iii. impact to Users Human uses in the Sanctuary will not be adversely'affected because there will be no new, substantive regulatory restrictions or prohibitions instituted by the Sanctuary under this alternative. The NMFS humpback whale. approach and taking regulations continue to apply, and discharge, deposit and alteration of the seabed activities must be conducted in compliance with the terms conditions of the applicable Federal or State permit.& or. authorizations, to avoid violating Sanctuary regulations. Thus, no negative socio-econorpic impacts are expected to result from this alternative. This alternative also does not impose independent Sanctuary. permit requirements. However, Final Environmental Impact Statement Page 165 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary through coordination with Federal and State agencies and the public, the Sanctuary may e recommendations to ensure that certain activities are conducted in-a manner that does not injure Sanctuary resources. Individual agencies administering the permits or other approvals may or may not choose to accept Sanctuary recommendations. There may be some socio-economic, impacts from Sanctuary recommendation is adopted by a State or Federal permitting agency, but these are expected to be small in comparison to the benefits to the Sanctuary. Further, there may be greater socio-economic impact on persons in violation of approach, discharge or alteration of the seabed restrictions because Sanctuary maximum civil penalties could be higher than other Federal and State civil penalties, however these would be less severe than criminal penalties imposed under such other laws. iv. Conclusions Unlike most other National Marine Sanctuaries, the HEHVvNMS is unique in that Congress designated it to protect primarily the humpback whale and' its habitat. Notwithstanding the Congressional finding in the HINMSA that existing regulatory and management programs are inadequate to provide comprehensive and coordinated conservation and management of humpback whales and their habitat, it has been argued by Federal and State agencies and the general public that there are in fact sufficient authorities existing to protect water' quality and the. submerged seabed in the Sanctuary (humpback whale's habitat). Therefore, as there are a number of existing authorities that directly protect the.humpback whale '(i.e., ESA and MMPA), and also directly or indirectly pro tect the humpback whales' habitat (i.e., MMPA, CWA, OPA, HRS Chapter 342D- 5 1), and in the absence of additional scientific information regarding the impact of human uses on humpback whale habitat, the Sanctuary will rely on these authorities as much as possible and seek only to supplement enforcement of non-c6mpliance of valid permits from other Federal or State authorities. By essentially incorporating other authorities as Sanctuary regulations, the 'Sanctuary seeks to address Congress' findings, achieve and fulfill its trustee and management responsibilities, and avoid'adding unnecessary, duplicative administrative procedures, while still ensuring protection of humpback whales and their habitat. e. Regulatory Alternative 4 Adopt existing NMFS humpback whale approach regulations; and promulgate new Sanctuary, regulations governing the discharge of materials into the Sanctuary and alteration of the seabed of the Sanctuary i. Description of Proposed Regulatory Action This alternative would incorporate as Sanctuary regulations, the following humpback whale approach regulations that exist under the auspices of the MNIPA and the ESA: Approaching, or causing a vessel or other object to approach, within the Sanctuary, by any means, within 100 yards of any humpback whale exceptas authorized under the Marine Mammal Protection Act, as amended (MMPA), and the Endangered Species Act, as amended (ESA); Operating any aircraft above the Sanctuary within 1,000 feet of any humpback whale except when in any designated flight corridor for takeoff or landing from an airport or runway or as authorized under the M1vTA and the ESA; 0 Taking any humpback whale in the Sanctuary, except as authorized under the MMPA and/or the ES A; 0 Possessing within the Sanctuary (regardless of where taken, moved, or removed from) a humpback whale (living or dead) taken in violation of the MMPA or the. ESA. Page 166 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whaie Part III: Alternatives andMeir Potential Consequences National Marine Sanctuary In addition, this regulatory alternative would add the following independent Sanctuary regulations to protect the'humpback whale's habitat: The following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted: Discharging or depositing, from within the boundary of the Sanctuary,,any material or c' other matter except: f materials (bait) produced and discarded during (i) fish ish parts and chummi. traditional fishing operations conducted in the'sanctuary; (ii) biodegradable effluent incidental to routine vessel operations (e.g., cooling water, deck wash down and graywater as defined in section 312 of the Federal Water Pollution Control Act), excluding oily wastes from bilge pumping; (iii) engine exhaust. Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter except those listed in (i)-(iii) above, that subsequently enters and injures a Sanctuary resource or quality. Drilling into, dredging, or otherwise altering the seabed of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary, except: (i) anchoring vessels; (ii) traditional fishing operations; (iii) installation of navigation aids by the U.S. Coast Guard or Corps of Engineers. Under this alternative, discharge and alteration of the seabed activities would be prohibited and would require a Sanctuary pem-iit, certification, or authorization in order to be conducted. The Sanctuary would not wholly rely on existing authorities but rather would have direct, independent regulatory authority to influence activities that may impact humpback whales or their habitat. With regard to protection of the humpback whale's habitat, existing discharge, deposit, or alteration of the seabed activities being conducted pursuant to valid permits, leases, licenses, etc., executed prior to the effective date of Sanctuary designation (November 4, 1992) could not be terminated by the Sanctuary. Such discharges or deposits, and alteration of the seabed activities would be allowed, subject to all prohibitions, restrictions, or conditions imposed by applicable regulations, permits, licenses.- or other authorizations and consistency reviews issued or conducted by the appropriate authority. However, pursuant to the provisions of the NMSA, the Sanctuary may regulate the exercise of these existing permits consistent with the purposes for which the Sanctuary is designated. The Sanctuary could authorize permits issued by other authorities after the date of Sanctuary designation for activities which are otherwise prohibited by the Sanctuary regulations, such as discharges occurring outside Sanctuary boundaries which could enter and injure a Sanctuary resource or quality. The Sanctuary could deny authorization or require additional conditions necessary to protect the humpback whale and its habitat. In all cases, the Sanctuary would consult with the relevant permitting authority and provide scientific information concerning the humpback whale and its habitat to other regulatory authorities. The Sanctuary would cooperate with other authorities to formalize the consultative and management roles of the Sanctuary. To facilitate such coordination, memoranda of understanding. and/or protocol agreements may be developed. Final Environmental Impact Statement Page 167 and Management Plan Part III: Alternatives and '17heir Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary The disadvantage of this alternative is that there is limited scientific evidence on the impacts of human uses on whale habitat and there are existing State and Federal regulatory authorities in place that generally protect humpback whale habitat (water quality as physical alteration of the seabed). Consequently, a Sanctuary permit and approval requirement would add another review layer to the already burdened permit review processes in. Hawaii without adding significant additional protection to humpback whale habitat. An independent,. comprehensive regulatory review process is warranted when protecting an ecosystem environment where existing authorities are inadequate to do so or need to be supplemented, or if scientific evidence indicates that habitat could be afforded greater protection by such a process. However, the Sanctuary's resources are only the humpback whale and its habitat, and presently there is limited scientific information on human impacts to habitat. Regulatory mechanisms that protect, directly and indirectly, humpback whales and their habitat are already in place, and placing additional regulatory requirements may not translate into greater protection for the resources. This alternative would provide additional authority necessary to achieve Sanctuary policies and purposes consistent with the HINMSA's finding that "regulatory andmanagement regimes are inadequate" to protect the humpback whale and its habitat as well as the recommendation for improved coordination. among managing agencies and the public in resource management issues identified in the Hawaii Ocean Resources Management Plan. ii. Impact to Resources Increased protection could be afforded to the humpback whale and its habitat because the Sanctuary will have independent regulatory prohibitions in place, and will more closely review proposed activities that may potentially affect the humpback whale and its habitat. Activities under valid pre-existing permits cannot be terminated by the Sanctuary, but could be conditioned to protect Sanctuary resources. Prohibited activities would require a Sanctuary permit or authorization before they may be conducted. The Sanctuary would also have greater ability to modify or deny activities that could harm Sanctuary resources. Enforcement capabilities, allowed under the NMSA would also add a greater deterrence value, associated with the potential for Sanctuary civil penalties which could be used for the benefit of the Sanctuary. Sanctuary coordination with and utilization of the expertise of other State and Federal authorities would continue. The, additional efforts of the Sanctuary Program to focus on the non-regulatory aspects associated with coordination, education, interpretation, research, and long-term monitoring would provide additional benefits to Sanctuary resources. Other resources may incidentally benefit from compliance with Sanctuary regulations. iii. Impact to Users The Sanctuary may not terminate any activity authorized by any validlease, permit, license, approval, or other authorization in existence on the effective date of Sanctuary designation issued by any Federal, State, or county authority, or by any valid right of subsistence use of access in existence on the effective date of Sanctuary designation, although the Sanctuary could impose terms and conditionsto protect Sanctuary resources. After the effective date in which the regulations take effect, the Sanctuary would review, and if necessary, condition certain existing activities permitted by other authorities (point source discharges, alteration of the seabed activities). NOAA may impose some conditions (i.e., conduct the activity during the non-whale season, or limit a use away from a particularly sensitive area) which may in-tum lead to additional economic burdens on the applicant. However, such impact would be warranted to protect Sanctuary resources. Any activity authorized by a valid lease, permit, license, approval, or other authorization issued after the date of Sanctuary designation (including permit renewals) must have approval Page 168 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary from, and be in compliance with any terms or conditions imposed by the Slinctuary. For activities that involve approaching humpback whales within 100 yards (or overflight within 1000 feet), the Sanctuary would use the existing NMFS MIMPA/ESA permit procedures to address its concerns. With -independent Sanctuary regulations to protect habitat, the Sanctuary could deny or add conditions on activities that could lead to restrictions in uses or add economic burdens on the applicant. For* example, the Sanctuary, upon receiving a permit application for dischargin g primary sewage, could deny approval or condition approval of the permit (given sufficient information linking primary, sewage to negatively affecting the whales or their habitat) on upgrading to secondary treatment. Such a scenario could impose additional costs on an applicant. The Sanctuary will work closely with existing Federal, State, and county authorities to determine which activities may negatively affect Sanctuary resources and thus be more closely scrutinized. This alternative does not necessarily require more stringent standards, however, the Sanctuary may require that certain activities be modified to protect Sanctuary resources.. There may also be greater socio-econornic impact on persons unlawfully conducting prohibited activities 'because the Sanctuary civil penalties could be higher than other Federal and State penalties. iv. Conclusions Some members of the general public believe that the Sanctuary should provide more comprehensive and direct protection for the humpback whale's habitat which would provide greater proteIction to the humpback whale. The regulations in this alternative relating to discharges and alteration of the seabed would provide the Sanctuary with additional authority to more independently and directly protect humpback whales and their habitat in Hawaii, and provide greater comprehensive oversight of activities which take place in or out of the Sanctuary which might not otherwise take into account the protection of the humpback whale or its habitat. However, the Sanctuary would be adding an additional review and permitting process for activities that may affect the humpback whale that are already regulated in the Sanctuary with little additional benefit in light of the existing data regarding habitat. -Unlike other Sanctuaries where such an overarching review and permitting scheme is necessary to manage and protect an ecosystem environment, the resources of the Hawaii Sanctuary are, at this time, limited to the humpback whale and its habitat. With little scientific information on humpback whale habitat, the effects of burnan activities on water quality and the physical seabed as they 'relate to the humpback whale and its habitat appear, at the present time, to be more appropriately regulated using and in coordination with existing authorities. Regulatory Alternative Promulgate strict regulations on all marine uses and ictivities having the potential to adversely affect the humpback whale and its habitat; provide the greatest protection for the humpback whale and its habitat; maximum regulation for humpback whales and their habitat. i. Description of Proposed Regulatory Action Under this alternative, the Sanctuary would not incorporate the NMFS regulations described in regulatory alternatives "2" and "4"; norvould it rely on existing Federal, State, or county authorities. Rather, the Sanctuary would independently regulate activities in and around the Sanctuary that could adversely affect the humpback whale and its habitat. Many facets of information regarding the humpback whales are missing and perha:ps may never be fully known, yet many human use activities have been identified in the Humpback Whale Rec6very Plan, and other sources as "possibly" affecting humpback whales. Final Environmental Impact Statement Page 169 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary The range of activities potentially affecting humpback whales is large. Almost anything that humans do in or near the water could affect the whales. Certain activities, however, appear more likely to have possible adverse effects due to the noises they produce or their proximity to whales. They include the following (from Townsend, R., July 199 1): Marine transport - Warship operations Surfing Commercial fishing - Commercial submarine rides Water-skiing Recreational fishing -, Marine construction - - Kayaking Diving and snorkeling Near-shore construction Aircraft operations Thrillcraft operations Near-shore resort operations Sewage dumping Parasail operations Agricultural operations Commercial cruising Whale watching Recreational boating Scientific research In addition, there is the potential for such activities as Ocean Thermal'Energy Conversion, Acoustic Thermometry of Ocean Climate, laying of ocean cables, commercial and military rocket launches from,near-shore based facilities, hydrofoils or hovercraft, sand mining; and other projects, activities, and uses,which have potential impacts but for which there is little information on their actual effects. The HINMSA defines "adverse impact" as an "impact that independently or cumulatively damages, diminishes, degrades, impairs, destroys, or otherwise harms" [Sec. 2303(l)]. Long- term cumulative adverse impacts on the humpback whale and its habitat from activities in the Sanctuary may not be detectable for years. Therefore, this alternative would impose a variety of regulations to prohibit, restrict, or Emit uses, either seasonally or permanently, in an effort to protect the humpback whale, and generally improve the waters around the Hawaiian Islands to provide optimum humpback whale habitat. This regulatory alternative would place restrictions on marine resource users, where the potential,exists for those uses to have adverse impacts on humpback whales, their behavior, health, reproductivity, or habitat. This alternative would represent a "precautionary" approach to regulation partly in recognition of the humpback whale's status as an endangered species. Regulations affecting vess 'el t'raffic (vessel separation lanes, vessel speeds, vessel density in specifically identified areas), noise standards for vessels and aircraft, seasonal restrictions on recreational marine activities, regidlation of commercial and recreational fishing, more stringent water quality measures, as examples, woula be developed as needed. This regulatory approach could use special use zoning much like the State's Marine Life Conservation District authority but be potentially utilized on an extensive scale to ensure safe zones for humpback whale use during the winter months when the whales are present in Hawaiian waters, or to prevent or condition projects or activities occurring throughout the year which might degrade the whale's habitat. Under this alternative, the Sanctuary would play a greater role in reviewing activities subject to Sanctuary regulations. Activities being conducted pursuant to valid permits executerl prior to the effective date of Sanctuary designation (November 4, 1992) could not be tern-iinated by the Sanctuary, although pursuant to the provisions of the NMSA, NOAA may regulate the exercise of activities under such existing permits consistent with the purposes for which the Sanctuary is designated". ii. Impact to Resources This regulatoq alternative provide's the greatest protection for the humpback whale and its Hawaiian habitat. The Sanctuary would prohibit or restrict, and require review and approval for, activities that may potentially impact Sanctuary resources. This option provides, greater habitat protection than the previous alternative because it -requires that a number of activities be renewed and approved by the Sanctuary, and would impose a variety of use restrictions to lirnit the amount Page 170 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary of human interaction with the whales. Enforcement of Sanctuary regulations would be one of the priorities of the Sanctuary. The possibility of higher maximum civil penalties under the NMSA will also add a greater deterrence value. Coordination with, and utilization of expertise from other State and Federal agencies would continue. The additional efforts of the Sanctuary Program to focus on the non-regulatory aspects associated with coordination, education, interpretation, research, and long-term monitoring would also provide additional benefits to Sanctuary resources. Other resources will likely benefit from higher water quality standards, restricted human uses of the marine environment, and a greater compliance with Sanctuary regulations. iii. Impact to Users The Sanctuary will have the authority to regulate (but not terminate) activities authorized by permits, licenses, leases, etc., in existence on the date of Sanctuary designation. Further, Sanctuary approval would be required for any new activity prohibited by the regulations. The Sanctuary may impose some minor restrictions (e.g., conduct the activity during the non-whale season, or relocate an activity away from a particularly sensitive area) or more major restrictions (uniform 300-yard vessel approach limits, restrict vessels from certain areas when whales are present, establish vessel speed limits, limit the number of whalewatching vessels or the number of vessels viewing each whale, prohibit thrill craft during whale season, limit certain types of discharges within or outside the Sanctuary, develop more stringent water quality standards, limit types of in-water or nearshore construction activities) which will likely add significant socio- economic burdens on marine resource users and the marine recreation industry. Certain activities that are found to, or have the potential to adversely impact, Sanctuary resources would be regulated by the Sanctuary. Aggressive enforcement of Sanctuary regulations could significantly impact commercial and recreational users if fines were repeatedly levied upon these groups. The Sanctuary would work closely with existing Federal, State, and county authorities to determine which activities may negatively affect Sanctuary resources and thus require closer scrutiny and possible Sanctuary regulation. iv. Conclusions This alternative would afford the greatest protection to humpback whales in the absence of adequate scientific evidence on the impacts on the humpback whale and its habitat resulting from many of the activities listed above. However, this alternative would likely result in the most severe socio-economic impacts, to marine users. NOAA believes that in this instance, where the only resources under the jurisdiction of the Sanctuary is the humpback whale and its habitat, where there is little scientific evidence on human use impacts to humpback whales and their habitat, and where there are other authorities in place to protect, directly and indirectly, humpback whales, this alternative would be overly restrictive. If NOAA/SRD determined that greater restrictions are necessary to protect humpback whales and their habitat, NOAA would work with the SAC and the State as it develops such restrictions, as well as provide notice and comment under the Administrative Procedure Act, and, if necessary, issue a Supplemental EIS/MP. g. REGULATORY ALTERNATIVE 6 Promulgate regulations to include management concerns related to other resources of national significance (multi-species) and manage the Sanctuary on an ecosystem basis. L Description of Proposed Regulatory Action Under this alternative, the Sanctuary would designate other marine resources and ecosystems of national significance as Sanctuary resources and issue regulations to Final Environmental Impact Statement Page 171 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary comprehensively protect, conserve, and manage these resources. While this regulatory alternative proposes to include more resources than the other alternatives, the level of regulation would not likely be as stringent as those of regulatory alternative '.5." In designating the Sanctuary, Congress - recognized the significant and unique marine resources and ecosystems within the Hawaiian Islands, in addition to humpback whales and their habitat [HINMSA section 2302(l). and 2302(4)]. Furthermore, one of the purposes of the Sanctuary is "to manage such human uses of the Sanctuary consistent with (the'HINMSA and the NMSA)." [HE-4MSA, Section 2304(b)(3)]. The NMSA provides for comprehensive ecosystem- based protection and management of national marine sanctuaries. Another purpose of the Sanctuary is "to provide for the identification of marine resources and ecosystems of national significance for possible inclusion in the Sanctuary..." [11INMSA, section 2304(b)(4)]. Other marine resources have been identified in both the scoping meetings and inter-island meetings on the Sanctuary, including: coral and benthic communities, fringe reefs, bottlenose and spinner dolphins, hawksbill turtles, green sea turtles, seabirds, the Hawaiian Monk Seal, and Native Hawaiian cultural and historical resources. Under this alternative, NOAA would include these resources and other marine resources and ecosystems as Sanctuary resources. As a result, certain additional regulations would be required to achieve the more comprehensive management and protection of these resources and qualities. The Sanctuary's review of activities would be broadened to include the potential for adverse impacts to such other resources and qualities (e.g., the impact of water quality on the marine ecosystem or an oil spill impact on a colony of seabirds) in addition to the humpback whale and its habitat. Consistent with other national marine sanctuaries, which protect and manage ecosystem marine environments, the following activities may be regulated (including prohibition) by the Sanctuary under this alternative: Taking of sea turtles, marine mammals and seabirds; Removal, taking or injuring of historical and cultural resources; Removal, taking or,injuring of any live coral; Discharge of primary treated wastewater or other harmful discharges into Sanctuary; Operation of marine vessels (or activities) that could adversely impact Sanctuary resources; Alteration and/or construction of the seabed, Mineral mining development; or Certain fishing techniques that could damage Sanctuary resources. As. listed in regulatory alternative "4," the ORMP notes that additional measures may be necessary to protect the marine environment in Hawaii. The ORMP indicates that there is inadequate coordination, public input, and enforcement in the management of Hawaii's marine resources. NOAA would initiate a more detailed analyses of existing resource management agencies and programs before it could clearly determine what regulations are necessary to manage and protect an ecosystem environment. While authorities exist to protect the humpback whale and its habitat (water quality and physical alteration of the seabed), the Sanctuary would supplement such authorities under this alternative to provide enhanced protection for the entire marine ecosystem, as well as for cultural, historical, recreational, and aesthetic resources. The Sanctuary would provide comprehensive review and management of activities in the Sanctuary to ensure that the policies and objectives of the ORMP, the HINMSA, and the NMSA can be achieved for all Sanctuary resources, based on an ecosystem approach. Page 172 Final Environmental Impact Staternento and Management Plan Hawaiian Islands Humpback Whale Part IR: Alternatives and Their Potential Consequences National Marine Sanctuary ii. Impact to Resources This regulatory alternative is based upon an expanded definition of Sanctuary resources that includes other natural marine resources (sea turtles, seabirds, other marine mammals, coral reef assemblages, fish), Native Hawaiian cultural and historical sites, shipwrecks, and other historical resources. Increased protection will ensue to, not.only the humpback whale and its habitat, but all other living and non-living resources of -the Sanctuary. Regulations would be those necessary and reasonable to protect and manage all resources and qualities of the Sanctuary. The Sanctuary will have the ability to closely review, condition, and if necessary prohibit activities that may potentially aff6ct any Sanctuary resources. Since the scope of Sanctuary resources is expanded, the Sanctuary would took at activities that may affect resources other than the humpback whale. The Sanctuary would work with existing Federal, State, and county agencies, if possible, to coordinate and seek to use existing permit review procedures and not duplicate ongoing efforts. However, the Sanctuary would have greater authority to modify or stop activities that harm any Sanctuary resource or quality. Enforcement capabilities, authorized under the NMSA, will also add a greater deterrence value associated with the potential for increased penalties. The additional efforts of the Sanctuary Program to focus on the non-regulatory aspects associated with coordination, education, interpretation, research, and long-term monitoring would be expanded to address all Sanctuary resources. iii. Impact to Users Regulations protecting and managing an ecosystem-based Sanctuary could result in some adverse impacts to users. In general, however, ecosystem-based sanctuaries regulate only a narrow range of activities with minimal impact to, users. Under this regulatory alternative, the Sanctuary would regulate activities from an ecosystem perspective. The Sanctuary may require changes to proposed activities (e.g., conduct the activity to minimize impacts to coral reefs or relocate the activity away from a particularly sensitive resource area) that may lead to additional economic burdens on the applicant. If a proposed activity is determined to adversely impact Sanctuary resources, it may not be allowed to occur in the Sanctuary. Since the scope of Sanctuary resource in this alternative would have been expanded to include other living and non- living marine resources (cultural, historical, other natural resources), the Sanctuary would more closely scrutinize activities that hold the potential to impact these other resources. For example, -with regard to discharge activities, the Sanctuary would be looking at potential impacts on coral reefs, algae, plankton, and other components of the ecosystem. Thus, there is a greater likelihood that a particular activity may affect a Sanctuary resource. NOAA will work closely with Federal, State, and county agencies to identify specific activities known to affect various components of the marine environment so that the permit review and approval procedure can be streamlined and occur to the extent practicable within existing permit review processes. This alternative does not necessarily require more stringent standards or independent Sanctuary permits, however, the Sanctuary may recommend that certain activities be modified to protect a broader range of Sanctuary resources. There may be a greater socio-economic impact on persons unlawfully conducting prohibited activities because Sanctuary civil penalties could be higher than other Federal and State penalties. iv. Conclusions It is premature to determine at this time what other marine resources should be included in the Sanctuary, or what regulatory authorities might be required to protect and manage those resources. The Sanctuary has not fully assessed or determined whether other marine resources and ecosystems in Hawaii are nationally significant and should be included as Sanctuary resources. Rather, the Sanctuary has developed a process for the consideration of other resources to be included at a future date (see discussion on alternative D.La below), with adequate study, review, and public participation. If NQAA/SRD determines that the Sanctuary should be expanded to Final Environmental Impact Statement Page 173 and Management Plan Part IH: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary include other resources, it may issue a supplemental EIS/MP and proposed regulations specifically identifying the resources proposed to be included as,Sanctuary resources and activities of concern to provide for comprehensive management and protection for all Sanctuary resources. 3. Managgement Altematives This section examines different elements of a management program as identified by the Draft Management Plan, including the scope of the resources addressed by the Sanctuary, and the Sanctuary management and administrative framework. To a large degree, the alternatives described below are dependent on which Sanctuary boundary is finally selected (i.e., both the administration and management of the Sanctuary will differ if the Sanctuary includes only the Maui County area, or waters surrounding all four counties and Kahoolawe.). a. Scope of Resource Coverage Although the HINMSA identifies humpback whales and their habitat as the Sanctuary's resources, it allows for the identification of other marine resources of national significance for possible inclusion in 'the Sanctuary's management regime, opening the consideration of a multi- species or ecosystem Sanctuary. i. (Status quo) Humpback VVhale and Its Habitat, With Other Resources Identified at a Later Date for Possible Inclusion PREFERRED ALTERNATIVE This alternative would implement the primary purpose of the HESIMSA to focus attention on the humpback whale and its habitat as Sanctuary resources. Habitat increases the scope of management concern, but it does. so in a way which links the concerns of the habitat to the needs of humpback whales.* For example, sediment plumes from non-point sources of pollution may be smothering coral reefs in a bay, but if there is no linkage to the protection of humpback whales, it would at this point in time not be a priority Sanctuary issue of concern. If that same sediment plume were found to be resulting in the degradation of habitat and contaminants were being . absorbed by the,whales or causing whale avoidance of the area, then sedimentation would be an issue of concern requiring some remedial action. To focus the Sanctuary Management Program on these resources satisfies the primary purpose of the Sanctuary as well as the concerns of many Hawaii resource users to minimize the amount of management authority the Federal Government would exercise in State waters. It could take many years before all humpback whale management activities are enhanced to the degree that people feel that real progress has been made in furthering the goals of humpback whale protection. The Act finds that: "The marine sanctuary designated for the conservation and management of humpback whales could be expanded to include other marine resources of national significance which are determined to exist within the sanctuary" [Section 2302(16)]; and requires NOAA: "to provide for the identification of marine resources and ecosystems of national significance for possible inclusion in the sanctuary designated by (the HINMSA)" [Sec. 2304(b)(4)]. In order to fulfill this requirement of the HI1,qMSA and to meet the concerns of the State of Hawaii and many marine resource users, a special process which resembles the current site Page 174 Final Environmental impact Statement and. Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and "Ibeir Potential Consequences National Marine Sanctuary selection process for the designation of National Marine Sanctuaries has been included in the Final Management Plan. This process permits the full consideration of all species put forward through the identification process, allows public and, special interest input and deliberation in addition to the advice,ptovided by the SAC. It also provides the State with the opportunity for full review* to determine if the inclusion of additional resources in State waters is in the State's interest. The task of keeping rn,-irine ecosystems healthy is costly. Better science and information gathering is necessary. Above all, the cooperation among all levels of government, the necessary input and support from a broad constituency, and the additional financial and technical assistance that can be brought to bear on comprehensive management may be the only way to solve our future problems in the coastal and marine environment. This alternative then provides the time and the process to accomplish this goal of looking at the marine environment as an integrated whole, and not simply as a collection of individual resources and issues. ii. Identify and Designate Other, Resources of National Significance for Inclusion in the Sanctuary Now Throughout the EIS/MP scoping and public participation process, a number of individuals expressed the desire to see the Sanctuary include multiple resources and that it become comprehensive in scope and work jointly with State authorities to address some of the water quality problems affecting other marine resources. The Sanctuary solicited comments on this issue because of the HINMSA's requirement to investigate other marine resources for possible inclusion in the Sanctuary, but also to assess public expectations of the Sanctuary. In the management of the other marine, sanctuaries, SRD believes that managing a sanctuary on a comprehensive, ecosystem basis provides the best ripe of long-term protection for, special marine areas. However, expanding the list of Sanctuary resources also expands the potential management effects on users. The process of Sanctuary selection and designation usually takes a considerable amount of time and resources to conduct studies and ensure ftdl public participation in the selection and designation process. There is authority to identify and designate other resources of national significance and propose those resources to the public for inclusion prior to issuance of the Final Management Plan and Implementing Regulations. Through public input, many (if not all) resources within the Hawaiian Islands which could be located within the current or expanded Sanctuary boundary were mentioned. Marine turtles, endangered species, (e.g., Hawaiian monk seal), seabirds, coral reefs, and other cetaceans were some of the most frequently resources cited. Moreover, Congress found that this region has many resources of national significance and importance, and that the marine ecosystem is diverse and unique [HINMSA, Section 2302(l) and 2302(4)]. Including these other resources would potentially require different and additional types of management strategies and regulations to ensure the comprehensive protection and management of the resources and to enable the consideration of those resource's requirements (see Regulatory alternative `V above). Additional research and information gathering is necessary; including an analysis of whether the resources meet "national significance" criteria before final decisions are made. Final Environmental Impact Statement Page 175 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary b. Sanctuary Administration i. Management Responsibility 1) NOAA/SRD PREFERRED ALTERNATIVE The preferred management alternative is to identify a Sanctuary Manager,* who would be a NOAA.employee of SRD, as soon as possible following issuance of the Final EIS/MP. The Sanctuary has had an on-site Program Specialist to handle day-to-day activities and outreach since 1991. The SRD Chief and the Pacific Regional Manager (Silver Spring, MD) have been handling policy and administrative matters thus far. The initial proposed staffing of the SRD Field Office would consist (in addition to the Manager) of an administrative assistant and a research or an education/interpretation coordinator. Hiring a Sanctuary Manager immediately upon completion the Final EISYMP would assist in establishing Sanctuary visibility,at an early phase and continue efforts previously performed by the On-site Program Specialist. Under this alternative, an independent management and administrative system for the Sanctuary would be established and housed in the NOAA-owned headquarters facility located in Kihei, Maui. A satellite office is located in Honolulu. Depending in part. on the size and configuration of the final Sanctuary boundary, seasonal satellite offices (or the headquarters) could be opened on other islands. Due to numerous points of access to the Sanctuary, a centralized Sanctuary headquarters/information center may not provide optimum access to the variety of commercial and recreational Sanctuary users. The need for and timing of "satellite" information centerswould be determined as development of the Sanctuary programs increased. A variety of Sanctuary program activities would be phased in, with the initial focus on research and education/interpretation. The Sanctuary headquarters would coordinate directly and actively with other Federal and State agencies in the implementation of the rnanagement plan. The Sanctuary Manager and staff, with the advice of the already established SAC would begin the process of informing the public and regional officials of the Sanctuary's mandate, regulations, and research and education programs. 2) Other Federal Agencies A Federal agency with delegated responsibility for managing Sanctuary resources which is headquartered in the vicinity of the site would be given the role and responsibility of ad-ministering the HIHWNMS. NMFS's Pacific Area Office in Honolulu is the most lik6ly candidate to manage the Sanctuary under this option since they already have primary responsibility for managing humpback whales under the MMPA and the ESA, and have ongoing research, education, and management programs for humpback whales in Hawaii. This would also serve,to place the responsibility for Sanctuary administration as well as regulatory enforcement all under one agency. Other candidates could be the U.S. Fish and Wildlife Service or the National Park Service of the Department of the Interior which have facilities and infrastructure available on all the MHI. 3) State Oversight A State agency, such as DLNR, which establishes,, manages and regulates Marine Life Conservation Districts and other State facilities, could serve as the on-site manager and enforcement in cases Where State waters are involved. In this instance, the State may handle all responsibilit.'ies of on-site management and enforcement with the exception of duties assigned by Federal law to Federal agencies, or (through agreement with Federal agencies) handle certain or all of the related Federal responsibilities. This is the option SRD used in the past for management of two Florida Keys sites and for Fagatele Bay, American Samoa. Over the years, however, SRD Page 176 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences National Marine Sanctuary began employing Sanctuary managers as Federal employees. Recent full term employee limitations in the Federal workforce may make this a viable option. 4) Combination of Options This option would rely on the expertise of existing agencies, organizations, and programs to implement the Sanctuary management agenda. Education, research, and/or enforcement would be contracted out or delegated to other agencies. This alternative may prove to be appropriate as the priorities developed in the yearly action plan dictate. Therefore, consideration of this option will be considered on a yearly basis with input from the SAC. ii. Management Implementation Period Humpback whales are seasonal and migratory visitors to Hawaii. Many people inquired if the Sanctuary would be in place only six months of the year (December - May) when the whales are present (e.g., the current NUFS enforcement program is a seasonal activity).. Concerns were expressed over efficiency and cost of year-round program as well as the need. Consequently two alternatives are under consideration. 1) "Seasonar' (December - May), This alternative would coincide with the presence of the whales in Hawaii. All aspects of resource protection and management (research, education, monitoring, enforcement) would take place only during this time frame. Programs for education and some aspects of research and monitoring would be limited in their potential during this period as not all such activities are directly related to the physical presence of the whales. This management period would favor the Sanctuary being run by the headquarters office with members of the SRD present for six months of the year, or through contractual arrangements made with other institutions or agencies. This approach would likely limit any efforts for a Sanctuary-sponsored visitor's center, but linkages with existing facilities could be established. 2) "Year-round" PREFERRED ALTERNATIVE Notwithstanding the half-year presence of the humpback whales in Hawaiian waters, there are many activities envisioned by the Sanctuary Program which require year-round effort and presence. Even though the whales are not continually present, efforts to manage and protect their habitat must continue on year-around basis. There are many types of human activities that could affect the whale's habitat (i.e., near-shore or in-water construction projects, water quality and oil spills) that may impact whether or not the whales will return to previously used areas. Continual monitoring of projects is necessary to ensure that humpback whale habitat is maintained and preserved, despite the whales' physical absence. Also, efforts to sponsor and coordinate research, long-term monitoring, and education programs, and to perform administration tasks such as administering the SAC and its working groups and 'coordinating with other agencies, institutions, and interest groups, are just some of the many reasons for having a year-round presence. The HIHWNMS currently employs a full-time on-site program specialist in Maui and has contracted staff on Oahu and Kauai. These staff are continually busy responding to public information needs, planning activities and events, and developing research and education programs for upcoming whale seasons. During the formative years of program development, there is going to be a significant amount of work on a year-round basis including the need to manage the process for considering other resources of national significance. Final Environmental Impact Statement Page 177 and Management Plan Part III: Alternatives and Their Potential Consequences Hawaiian Islands Humpback Whale National Marine Sanctuary iii. Enforcement 1) Status, quo An internal Memorandum of Agreement exists between NUFS and the National Ocean Service, which oversees the National Marine Sanctuary Program, concerning the enforcement of laws within National Marine -Sanctuaries (January 1992; and supplement drafted in March 1.993). NUTS's Office of Enforcement (NMFS-OE) has the responsibility for enforcement within designated sanctuaries. This measure was developed to achieve greater economy by eliminating duplication of effort in the oversight and administration of NOAA enforcement efforts. While the mechanisms are in place to streamline operation and minimize costs by avoiding duplicate enforcement systems, the most important element is that the decision to prosecute any alleged violation of regulations promulgated under the NMSA rests the Sanctuary, the NMFS-OE, and NOAA's Office of the Assistant General Counsel for Enforcement and Litigation. 2) Enhanced Enforcement PREFERRED ALTERNATIVE The preferred enforcement alternative enhances and. complements the existing enforcement arrangement that SRD has with NMFS-OE, and would seek to re-establish the agreement that NMFS-OE had with the State of Hawaii (Marine Patrol and DLNR-Division of Conservation and Resource Enforcement) and Coast Guard for Federally-protected species and fisheries regulations. The Sanctuary would provide assistance and support for NMFS-OE to enforce Sanctuary regulations and to support the enforcement efforts by those State agencies that are deputized to enforce pertinent regulations. The,Sanctuary would seek to expand the deputized enforcement agreement between NMFS-OE and the State to include the NMSA and Sanctuary regulations.- Enhanced efforts could include: Increased interpretive enforcement presence: interpretive enforcement would place a greater emphasis on education and outreach as a tool to reduce harassment and approach violations instead of simply issuing citations. Additional funding through the NMSA would be provided to ensure NMFS* and State agencies had sufficient resources (adequate patrol vessels; camera and radio equipment) to accomplish surveillance and interpretive enforcement. � NMSA resources for increased monitoring and enforcement by State agencies (DOH and DLNR) to increase compliance with relevant permits and other authorizations which protect humpback whale habitat. � Support for enhanced training in law and procedures for enforcement personnel by supporting attendance at the NNES Training Center in Georgia and local on-site training. � Use of a voluntary citizen monitoring program, .as exemplified by DLNR's Volunteer Conservation and Resources Enforcement Officer Program, in cooperation with NMFS and State enrichment officials. The philosophy of enforcement has been described earlier in Part 1. The'impacts of enforcement are described in Part IV and the conduct of enforcement is described in Part V. Page 178 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part IV: -Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action PART IV: POTENTIAL ENVIRONMENTAL AND SOCIOECONOMIC CONSEQUENCES ASSOCIATED WITH ALTERNATIVE COURSES OF ACTION TABLE OF-CONTE PAGE A. INTRODUCTION ............................................................................. 181 B. BOUNDARY ALTERNATIVES ........................................................... 181 1 . Introduction ............................................................................... 181 .2. Bound= Alternatives ................................................................... 184 a. Boundary Alternative (1) ........................................................... 184 b. Boundary Alternative (2) ............................................................ 185 c. Boundary Alternative (3) - Preferred Alternative ............................... 186 d. Boundary Alternative (4) ............................................................ 187 e. Boundary Alternative (5) ........................................................... 188 C. REGULATORY ALTERNATIVES .......................................................... 189 1. Introduction ............................................................................... 189 2. Fishing Activities ......................................................................... 189 3. L=acts of E=osed Regulations ....................................................... 190 a. Overflights ............................................................................ 190 i. Status Quo: No Additional Regulation ....................................... 190 1) Impacts on Resources ...................................................... 190 2). Impacts on Users ............................................................ 190 ii. Sanctuary Alternative - Preferred .............................................. 191 1) Impacts on Resources ...................................................... 191 2) Impacts on Users ........................................................... 191 b. Approaching Humpback Whales .................................................. 192 i. Status Quo: No Additional Regulation ........................................ 192 1) Impacts on Resources ...................................................... 192 2) Impacts on Users ........................................................... 193 ii. Sanctuary Alternative - Preferred ............................................. 193 1) Impacts on Resources ...................................................... 193 2) Impacts on Users ........................................................... 193 c. Taking Humpback Whales ......................................................... 194 i. Status Quo: No Additional Regulation ...............0...... 0 ................ 194 1) Impacts on Resources ...................................................... 194 2) Impacts on Users ........................................................... 195 ii. Sanctuary Alternative - Preferred .........................................0 ... 195 1) Impacts on Resources ...................................................... 1195 2) Impacts on Users ........................................................... 196 d. Discharges or Deposits ........... 0 ................................................... 196 i. Status Quo: No Additional Regulation ......................................... 196 1) Impacts on Resources ...................................................... 196 a) Water quality standards ................................................ 197 b) Discharges from point sources ....................................... 197 c) Pollution from non-point sources ..................................... 198 d) Hazardous Waste, Oil, and Trash Disposal ......................... 199 e) Dredged materials ...................................................... 199 d) Ocean disposal sites ...... 0............................................. 200 2) Impacts on Users ........................................................... 20.0 Final Environmental Impact Statement Page 179 and Management Plan Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary ii. Sanctuary Alternative -Preferred ............................................. 201 1) Impacts on Resources ........................................................ 201 a) Water quality standards ................................................. 201 b) Discharges from point sources ........................................ 202 c) Pollution from non-point sources ......... I........................... 202 d) Hazardous Waste, Oil, and Trash Disposal ......................... 202 e) Dredged materials ............................ I ........................... 203 d) Ocean disposal 'sites ..................................................... 203 2) Impacts on Users ............................................................ 21N e. Alteration of the Seabed ....;........ 6 ........i...................................... 205 i. Status Quo: No Additional Regulation ....................................... 205 1) Impacts on Resources. . ..................................................... 205 2) Impacts on Users ............................................................. 205 ii. Sanctuary Alternative - Preferred ............................................. 206 1) Impacts on Resources ....................................................... 206 2) Impacts on Users .................................... e ...................... 207 D. MANAGEMENT ALTERNATIVES ...................................................... 208 1 . Consequences of Re=ving National Marine Sanctu= Designation ............. 208 2. Conseg@Lences of Accepting Status Qw Alternative ................................. 208 a. Sanctuary Resources ................................................................ 209 b. Administration ................ : ........................................................ 209 c. Research and Education ............................................................. 209 d. Enforcement .......................................................................... 210 3. Conmgp-ences of Sanctu= Preferred Alternative ................................... 210 a. Sanctuary Resources (Future Consideration of Other Resources) ............. 210 b. Administratio n ....................................................................... 210 c. Research and Education ............................................................. 211 d. Enforcement ............................................................. ! ............... 212 E. UNAVOIDABLE ADVERSE ENVIRONMENTAL AND SOCIOECONOMIC IMPACTS ..................................................................................... 215 F . RELATIONSHIP BETWEEN SHORT-TERM USES OF THE ENVIRONMENT AND THE MAINTENANCE AND ENHANCEMENT OF LONG-TERM PRODUCTIVITY .......................................................... 216 G. RELATIONSHIP BETWEEN THE PROP08ED ACTION AND EXISTING RESOURCE MANAGEMENT PLANS ............ **'**** ............................... 216 1. !=acts Related to Managmnt PI =ses ................ 216 2. Relationship Between SancM= Mana ment@i@@6i@er Whale and Ocean Managgment Plans and Prog= ................................. 217 a. Final Recovery Plan for the@ Humpback Whale .................................. 217 b Hawaii Ocean Resources Management Plan ...................................... 217 Page 180 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action A. INTRODUCTION In selecting the appropriate boundary, regulatory and management alternatives for the Hawaiian Islands Humpback Whale National Marine Sanctuary, NOAA evaluated the potential environmental and socioeconomic consequences of each alternative on Sanctuary users and resources. This section discusses. the consequences of the status quo as well as the Sanctuary, preferred alternatives. A summary of the, environmental impacts are described in Table IV- I and the socioeconomic impacts are described in Table IV-2. B. BOUNDARY ALTERNATIVES 1. Introduction All the boundary alternatives presented in this document would allow some level of coordinated and comprehensive conservation and management and provide protection for humpback whales and their Hawaiian habitat. The positive and negative socioeconomic effects of any boundary decision will depend in large part on which regulatory option is selected for the Sanctuary. Clearly, more restrictive regulatory regimes can be expected to have greater impacts than less restrictive regimes, and such effects will increase with a larger Sanctuary boundary. The main socioeconomic consideration in comparing a Sanctuary boundary around Maui County and a boundary including the waters around all or portions of the main Hawaiian Islands is that in the expanded options, any socioeconomic effects will spread out throughout the expanded area. With the Congressionally-designated Maui County option, benefits will only accrue largely to Maui County: Maui will become the destination for viewing humpback whales within a "Sanctuary"; research and education programs and Sanctuary funds will be directed to Maui County to address Sanctuary needs; monies for harbor signage, coral reef monitoring and water quality monitoring programs; press articles dealing with national marine sanctuaries will focus on Maui County. Likewise, any costs associated with the Sanctuary will be borne primarily by the Maui County residents: individuals or companies may receive violation notices for harassment of whales; greater attention and scrutiny may be required of proposed projects which could degrade whale habitat. From the perspective of the Statewide boundary option,. all the counties will presumably be affected in relation to the area of the Sanctuary around each island, population, visitor use, whale use, and other relevant factors. Final- Environmental Impact Statement Page 181 and Man.agement Plan > TABLE IV-1: Summa Y of Potential Environmental Impacts Associated with Alternatives 00 Alternatives Reg. All. 1: Reg. Alt. 2: Reg. All. 3: Reg. All. 4: Reg. Alt. 5: Reg. Alt. 6: Boundary Boundary All. 2: Boundary Alt. 3: Boundary B Ca. Status Quo- Incorporate (Preferred Comprehensive Proactive Regulation Alt. 1: Highest (Preferred Alt. 4: L -use Existing Alternative) Regs to Protect Humpback to Protect Status Quo- Reported Alternative) too- I Existing NMFS Incorporate Whales and Whale Added -Maui Concentrations Expand Fathom Fatho Er Regs Whale Regs to Habitat Protection Resources County and Congressional Isobalh Isobath > Approach Protect Philosophy Part of Boundary to Statewide Statewide Regs Whales and Kauai Include Big Habitat Island, Eastern Kauai, and Parts Resources of Oahu (D 0 Hu arback 0 + es Wha es 0 Humrback 0 0 + + + t Wha e Habitat 0 = 0 Water 0 0 E) + + + Potential environmental impacts associated with individual Quality boundary alternatives will depend upon which regulatory Seaflood alternative is applied. More restrictive regulations (i.e., regulatory Bcnihos alternative 5) may have greater environmental impacts applied 0 Marine 0 0 0 0 + over larger areas (boundaries 34) as compared to the Mammals Congressionally-designated area (boundary 1). All potential Historical/ 0 0 0 0 0 + environmental impacts associated with anj of the regulatory Cultural alternatives are expected to be positive. Seabirds 0 0 0 0 + Sea Turtles 0 0 0 0 E) + Fish 0 0 0 0 E) + Coral Reefs 0 0 0 E) E) + Key of Symbols: + = Significant beneficial environmental impacts 0 = Moderate beneficial environmental impacts 0 = Status quo or minimal environmental impacts PC ounda@@ TA-BLE IV-2: Summary of Potential Negative Socio-Economic Impacts Associated with Alternatives z X CD. :3 Alternatives Reg. All. 1: Reg. All. 2: Reg. Alt. 3: Reg. Alt. 4: Reg. Alt. 5: Reg: All..6: Boundary Boundary All. 2: Boundary All. 3: Boundary Boundary Status Quo- Incorporate (Preferred Comprehensive Proactive Regulation Alt. 1: Highest (Preferred Ali. 4: Alt. 5: 0 -Use Existing Alternative) Regs to Protect Humpback to Protect Status Quol Reported Alternative) 100- 1000- - Concentrations Expand Fathom Fathom Existing NMFS Incorporate Whales and Whale Added -Maui Isobath Regs Whale Regs to Habitat Protection Resources County and Congressional Isobalh E. Approach Protect Philosophy Part of Boundary to Statewide Statewide I Regs Whales and Kauai Include Big = Habitat Island, Eastem Sanctuary Kauai, and Parts C. Users of Oahu -3 Commercial 0 0 0 0 + 0 T @nsport __ W ional Recr at 0 0 0 0 + 0 Bowing I Tour Boats 0 0 0 0 + 0 Potential socio-economic impacts associated with individual Diving 0 0 0 0 G) 0 boundary alternatives will depend upon which regulatory Thrill Craft 0 0 0 0 + 0 alternative is applied. More restrictive regulations (i.e., regulatory Fishponds 0 0 0 0 E) 0 alternative 5) may have greater socio-economic impacts applied Military 0 0 0 0 + 0 over larger areas (boundaries 3-4) as compared to the Tourism 0' 0 0 0 E) 0 Congressionally-designated area (boundary 1). -Tbere are few Research 0 0 anticipated socio-economic impacts associated with regulatory 0 0 0 0 Education 0 0 0 0 0 0 alternatives 1, 2, and 3 regardless of the boundary since there are Commercial no new regulatory prohibitions proposed by the Sanctuary. 0 0 0 01 0 Fishing < Recreational 0 0 0 0 E) 0 0 0 Fishing Charter 0 0 0 0 0 0 Fishing Aquarium 0 0 0 0 + E) Industry > cn 0 Surfingl 0 0 0 0 0 0 Key of Symbols: 0. Swimming 0 Native 0 0 0 0 E) 0 + Significant potential for negative socio-economic impacts 0 Hawaiian 0 Whale 0 0 0 0 + 0 E) Moderate potential for negative socio-economic impacts 0 Watching r_ Agriculture 0 0 0 0 + 0 0 Minimal or no negative potential for socio-economic impacts 0 0 Shoreline 0 0 0 E) + E) (2 Development Industrial/ 0 0 0 E) + E) 00 Municipal/ rA Dischar es Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary 2. Boundga Alternatives a. Boundga Alternative (U: Status Quo - boundary as designated by Congress (100- fathom isobath around Maui County, excludingKahoolawe waters, and a small portion off Kauai) The Congressionally-designated boundary is fully discussed in Part III(B)(1)(b), and is shown in Figure 111-2. This is the smallest boundary alternative which was considered, and encompasses waters within the 100-fathom isobath around Maui, Lanai and Molokai, including Penguin Bank, and the deepwater Pailolo Channel. A small portion adjacent to the Kilauea National Wildlife Refuge, on Kauai. The waters around Kahoolawe were not included-in this boundary alternative in the Draft or Final EIS/MP; the HIT*4MSA mandated their inclusion as of January 1, 1996, unless the Secretary of Commerce certified these waters as unsuitable for inclusion in the Sanctuary. Such a certification was made in December 1995. The area included in this boundary alternative is heavily used by humpback whales for breeding, calving and nursing and comprises Hawaii's largest area of water less than 100-fathoms deep. The waters off Kilauea Point add an excellent opportunity for humpback whale education and interpretation at the U.S. fish and Wildlife Service Center, Kilauea Point National Wildlife Refuge, on Kauai Island. This boundary alternative provides additional protection to humpback whales and their habitat in the specified area through supplemental resource protection, research and long-term monitoring, education, outreach, coordination and enforcement activities. All Sanctuary management efforts would concentrate on the Maui County and Kilauea Point areas, thus benefiting the whales and this specific component of their Hawaiian habitat. Other marine resources in this area may incidentally experience benefits associated with the additional protection and public awareness programs for the humpback whales and their habitat. However, this boundary alternative does not effectively provide for comprehensive or coordinated man ment throughout the humpback whale's main Hawaiian Island range. Humpback whales inhabit and transit areas throughout all the main Hawaiian Islands, and this alternative will not effectively protect them while they are in waters around Kauai, Niihau, Oahu and. the Big Island. Moreover, this boundary alternative will limit the Sanctuary's ability to provide supplemental research, education and enforcement in these other whale habitats around the State. This boundary alternative, taken in conjunction with the preferred regulatory alternative (3), would focus Sanctuary regulations and corresponding enforcement mechanisms on Maui County and the small area off Kilauea Point. Since regulatory alternative (3) does not add any new substantive regulatory prohibitions, permit requirements or approvals than those already required, implementation of this boundary alternative is not anticipated to result in significant adverse impacts to Maui County's economy or to marine user groups in this area. Any research, education, coordination or enforcement initiated a's a result of the Sanctuary will ultimately lead to a better understood marine environment and will benefit both human and non-human users of the area. Any impacts resulting from establishing the Sanctuary, positive (e.g., education, research, monitoring, public participation, enforcement and coordination) or negative (e.g., civil penalties), would be bome exclusively by the residents of Maui County and the small area off Kilauea Point, Kauai. Page 184 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale P@t IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action b. Bound= Alternative (21: Areas of highest reported concentrations of humpback whales. i This boundary alternative is based on a variation of boundary alternatives (1). and (3). It is fully described in Part III(B)(2)(c), and shown in Figure 111-3. It was developed partially in response to public comments at scoping meetings and comments received on the DEIS/UP calling for expansion of the Sanctuary to include areas of high whale concentration, and particularly cow- calf areas, near islands other than those in Maui County. The boundaries were drawn based on humpback whale distribution data (Nitta and Naughton, 1989; Forestell and Brown 1992; Mobley et al. 1993). This boundary alternative would focus Sanctuary management on those discrete areas within the 100-fathom isobath throughout the Hawaiian Islands documented to have higher humpback whale concentrations thari other parts of the state. However, this alternative does not take into account the possibility of changes in whale distribution and habitat preference over time because of social, environmental or human influences. Moreover, this alternative, does not consider the movement of whales between these areas of higher whale concentration. Overall, this boundary alternative does not provide uniform and comprehensive protection of humpback whales throughout their habitat in the Hawaiian Islands. Resource protection, research, long-term monitoring, education, outreachand management programs would be conducted on a piecemeal basis in the areas included in the boundary. In generaL the environmental impacts of this boundary alternative would be positive for a larger portion of the humpback whale's Hawaiian habitat, as Sanctuary programs would be targeted at areas with a high concentration of humpback whales. Because of this larger focus area for Sanctuary programs, the importance of coordination and cooperation between the Sanctuary management and various state and county agencies, as well as academic and private organizations, would increase. The importance of these cooperative efforts would be heightened, as areas of high humpback whale utilization axe subject to potential shifts in or abandonment of habitat, due to human use pressures. This boundary alternative does not allow for future expansion or changes in humpback whale distribution. This boundary alternative, taken in conjunction with the preferred regulatory alternative (3), would focus Sanctuary regulations and corresponding enforcement mechanisms. on discrete areas on Niihau, Kauai, Molokai, Lanai, Maui and Hawaii. Since regulatory alternative (3) does not add any new regulatory prohibitions, permit requirements or approvals than those already required, implementation of this boundary alternative is not anticipated to result in significant adverse impacts to the local economy or to marine user groups in this area. Any research, education, coordination or enforcement as a result of the Sanctuary will ultimately lead to a better understood marine environment and will benefit both human and non-human users of the area. All impacts, positive or negative, will be borne exclusively by the residents adjacent to or who use these waters. This alternative expands the boundary scope beyond alternative (1) to include specific areas of the main Hawaiian Islands outside Maui County known to have high concentrations of humpback whales. Taken in conjunction with the preferred regulatory alternative (3) which does not add any new substantive regulatory prohibitions, permit requirements or approvals beyond those already required, implementation of this boundary *alternative is not anticipated to result in adverse socioeconomic impacts to the economy or to marine users within this boundary. Any research, education, coordination or enforcement initiated as a result of the Sanctuary will ultimately lead to a better understood marine environment and will benefit both humafi and non- human users of the area. Any impacts resulting from establishing the Sanctuary, positive (e.g.., education, research, monitoring, public participation, enforcement and coordination) or negative (e.g., civil penalties), would affect this broader area. Final Environmental Impact Statement Page 185 and Managiment. Plan Part IV: Potential Environmental and'socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary c. Bound= AlteWative (3) Preferred Alternative: Expand Congressional boundary to include 100-fathom. isobath around Big Island, parts of Oahu, and eastern Kauai, excluding specified ports, harbors, small.. boat basins. This boundary alternative more adequately reflects humpback whale distribution and habitat use in the main Hawaiian Islands (primarily throughout the 100-fathom isobath region) than alternative (1) or (2). It is fully described in Part III(B)(2)(d), and shown in Figure. 111-5. Over 73% of the whales, and particularly the mother and calves, sighted in aerial surveys conducted during the 1993 season were found to be distributed in waters less than .100 fathoms deep (Mobley et al. 1993). Recent studies have also shown that humpbacks are highly mobile and transit between islands while residing in Hawaii (Cerchio et al. 1991, Cerchio 1994). Boundary alternative (3) takes these factors into consideration and, incorporates the majority of humpback whale habitat. This alternative was also developed in response to particular comments from the public and whale researchers and experts during the scoping meetings, other public information meetings, and during the DEISIMP public comment period. The boundary lines are based on humpback whale distribution data and provide more continuous statewide management regime for research, long- term monitoring, education, outreach and man ment programs throughout the main Hawaiian Islands. Although humpback whales have been seen occasionally off the NWHI, less favorable oceanographic conditions including cooler and rougher waters may inhibit reproductive and nursing activities in this area, and research indicates that humpback whales do not use it frequently. Ports, harbors, and small boat basins are normally enclosed or semi-enclosed areas that support heavy levels of human activities. Vessel traffic, dredging, construction, and waste discharge produce noise and pollution which make these places less than ideal for humpback whale habitat. While preferring the statewide boundary within the 100-fathom, isobath, SRD recognizes the important role of the U.S. Department of Defense (DOD) in the Hawaiian Islands both to national security and to the Hawaiian economy. NOAA and the State of Hawaii have determined that not including certain military use areas in the Sanctuary boundary would facilitate military uses and training without compromising protection for humpback whales and their habitat. SRD has consulted with DOD on existing military activities in the Hawaiian Islands and has determined that DOD has institutional mechanisms in place to avoid and minimize disturbances to humpback whales (for a list of activities, see Appendix F). Military activities remain subject to all other applicable authorities (MMPA, ESA, Rivers and Harbors Act, etc.) in Hawaii, and the statutory provisions of the NMSA. Military use areas and excluded ports, harbors, small boat basins are identified in Part M(B)(2)(d)(i) and M(B)(2)(d) and shown in Figures 111-5 and III- 11, respectively. The Sanctuary exclusion areas would not significantly diminish the Sanctuary's ability to provide comprehensive conservation and protection for the whales and their habitat. The environmental impacts of this boundary alternative would be positive. The Sanctuary would have the ability to comprehensively protect humpback whales and whale habitat through education, research, and regulation throughout the majority of the humpback whale's habitat. Although the physical area of the Sanctuary would be smaller than the ftffl statewide 100-fathom isobath and 1000-fathom. isobath boundary alternatives (no major exemptions) described below, the protection, education, and management encompassed in the Sanctuary's programs would be extended to a larger portion of the humpback whale's wintering habitat than the status quo alternative or the areas of highest whale concentration. This alternative expands the boundary scope beyond alternatives (1) and (2) to include most areas of the main Hawaiian Islands from the shoreline to the 100-fathom isobath except for Page 186 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback, Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action the waters around Kahoolawe; selected ports, harbors and boat basins; and specific rrdlitary use areas around W. Kauai and Oahu. Taken in conjunction with the preferred regulatory alternative (3) which does not add any new substantive regulatory prohibitions, pen-nit requirements or approvals beyond those already required by existing authorities, implementation of this boundary alternative is not anticipated to result in adverse socioeconomic impacts to the economy or to marine users within this boundary. Any research, education, coordination or enforcement initiated as a result of the Sanctuary will ultimately lead to a better understood marine environment and will benefit both human and non-human users of the area. Any impacts resulting from establishing the Sanctuary, positive (e.g., education, research, monitoring, public participation, enforcement and coordination) or negative (e.g., civil penalties) would affect this broader area. d. Bound= Alternative (41: Expand Congressional boundary to include 100-fathom isobath around the main Hawaiian Islands and Kaula Rock, and excluding specified ports, harbors, and small boat basins. This boundary alternative is a variation of boundary alternative (3). It is fully described in Part M(B)(2)(e), and shown in Figure M-12. The difference is that this boundary alternative .includes the waters around Kaula Rock, Niihau and all areas around Kauai and Oahu. Selected ports, harbors and small boat basins are not included, but military use areas around Kauai, Niihau and Oahu would be included in the boundary. This alternative, like alternatives (2) and (3), also responds to public comments received during the scoping meetings, other public meetings, and during the DEIS/MP public comment period calling for an expanded, uniform statewide boundary instead of a Maui County-only boundary. The boundary is based on humpback whale distribution data with the goal of providing a continuous management regime throughout the main Hawaiian Islands. Research, long-term monitoring, education, outreach and management programs are anticipated to be more effective if applied uniformly. This boundary alternative more adequately reflects the humpback whale distribution and habitat use in the main Hawaiian Islands (primarily within the 100 fathom isobath) and Kaula Rock, especially those areas used my mothers and calves. It also includes the waters around Niihau and the western portion of Kauai, an area that researchers believe is or has always been (only recent focus on that area ofthe state for humpback whale research) an important humpback whale breeding and nursing area (Mobley et al. 1993; Cerchio et al. 1991; Cerchio 1993). This boundary allows for uniform protection and monitoring of the whales throughout their range in the main Hawaiian Islands and is more easily recognized by the public since there are no major exclusion areas. Both human and humpback whale populations are increasing throughout the Hawaiian Islands. The fact that whale distribution is not static and is responsive to numerous social, environmental and humaii influences implies the need for an expanded area to accommodate changes. This boundary alternative allows- for the protection of humpback whales and whale habitat now and in th 'e future. The boundary also includes the areas of high human uses so that, should conflicts arise, the Sanctuary managers will have the latitude to directly address them uniformly throughout the humpback whale's range in Hawaii. However, this boundary does not recognize the military use areas in the vicinity of western Kauai/Niihau and Oahu. NOAA, in consultation with DOD and the State of Hawaii, has determined that the existing military use areas are essential to national defense and to the economy of the State of Hawaii. As such, NOAA determined that these areas should not be included in the Sanctuary boundary. Not including such areas is appropriate here, where the only Sanctuary resource is the humpback whale and its habitat, and where DOD remains subject to applicable humpback whale protection laws and regulations. This boundary alternative also includes the waters around two remote islands Niihau and Kaula Rock. Expanding research, long-term monitoring, enforcement, and outreach programs to these Final Environmental Impact Statement Page 187 and Management Plan Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses- of Action National Marine Sanctuary outlying -areas may over-extend the existing resources and make overall management throughout the main Hawaiian Islands less effective. As with the status quo and preferred boundary alternatives.' the environmental impacts of this boundary alternative would be positive. The Sanctuary management would have the ability to protect humpback whales and their habitat uniformly throughout the main Hawaiian Islands, through education, . research, and regulation. The protection, education and management encompassed in the Sanctuary's programs would be extended to a larger portion of the humpback whale's wintering habitat than under the status quo alternative. This alternative expands the scope of the Sanctuary to include the waters around all of the main Hawaiian Islands from the shoreline to 100-fathom isobath, including Niihau and Kaula Rock, excluding the waters around Kahoolawe and selected ports, harbors and boat basins. This boundary alternative does not exclude military use areas. NOAA has rejected this alternative because it fails to recognize the importance of DOD military use areas and of activities that are essential to the national security. 'Taken in conjunction with the preferred regulatory alternative (3) which does not add any new substantive regulatory prohibitions, permit requirements or approvals beyond those already required, implementation of this boundary alternative is not anticipated to result in adverse socioeconomic impacts to the economy or to marine users within this boundary. Any research, education, coordination or. enforcement initiated as a result of. the Sanctuary will ultimately lead to a better understood marine environment and will benefit both human and non- human users of the area. Any impacts resulting from establishing the Sanctuary, positive (e.g., education, research, monitoring, public participation, enforcement and coordination) or negative (e.g., civil penalties), would affect this larger main Hawaiian Islands area. e. Bound= Altema tive (5): Expand Congressional boundary to include 1000-fathom isobath around the main Hawaiian Islands This boundary alternative is the largest of all and encompasses most of the Hawaiian habitat range of humpback whales. It is fully described in Part M(B)(2)(f), and shown in Figure 111- 13. As described in Part II, recent scientific surveys that have included deep-water whale habitats revealed that up to 27% of the humpback whales, particularly males, were found in waters deeper than 100 fathoms (Mobley et al. 1993). This boundary option expands the scope of habitat protection to include deeper water areas used by humpbacks. The previous alternatives are primarily designed to protect calving and nursing areas, while alternative (5) includes additional deepwater habitat areas important to humpback whales such as singing, resting, and breeding., This alternative also responds to'public comments received during the scoping meetings, other public meetings, and during the DEIS/UP public comment period calling for the most expansive statewide boundary to protect humpback whales and their Hawaiian habitat. The boundary lines were drawn based on humpback whale distribution data with the goal of providing a continuous management regime that encompasses the greatest amount of hump-back whale habitat in Hawaii. This boundary alternative more than triples the size of the 100-fathom isobath (Statewide) boundary, and allows for the most comprehensive protection and management of humpback whales and'their habitat, through research, long-term monitoring, education/interpretative outreach, agency coordination, and enforcement activities. Envirorumental impacts of this boundary alternative would be positive, because the Sanctuary's resource protection progr@ms would be applied to a continuous statewide area. Nearly all of the whale's habitat would be managed and protected under the Sanctuary regime. Other marine resources would also benefit indirectly from this, protection. - However, costs and other re iated with source requirements assoc managing this large area may not allow the Sanctuary to achieve or My implement all of its goals and objectives. Page 189 Final Environmental Impact Statement and Manaxement Plan Hawaiian Islands Humpback Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action This alternative expands the scope to include the waters around all of the main Hawaiian Islands out to 1000 fathoms, including Niihau and Kaula Rock, and excludes the waters around Kahoolawe, and selected ports, harbors and boat basins. It contains no provisions to exclude military use areas; NOAA has determined that this alternative fails to recognize the importance of DOD military use areas and activities essential to the national security. Taken in conjunction with the preferred regulatory alternative (3) which does not add any new substantive regulatory prohibitions, permit requirements or approvals beyond those already required, implementation of this boundary alternative is not anticipated to result in adverse socioeconomic impacts to the economy or to marine users within this boundary. Any research, education, coordination or enforcement initiated as a result of the Sanctuary will ultimately lead to a better understood marine environment and will benefit both human and non-human users of the area. 'Any impacts resulting from establishing the Sanctuary, positive (e.g., education, research, monitoring, public participation, enforcement and coordination) or negative (e.g., civil penalties), would affect nearly everyone in the State. C. REGULATORY ALTERNATIVES 1. Introduction This section analyzes the environmental and socioeconomic consequences of the five activities included within the scope of the proposed Sanctuary regulations., It also mentions fishing activities, which are not proposed to be regulated in the preferred alternative but are discussed to clarify misperceptions and concerns raised throughout the public process. Each activity is analyzed in the context of both the Sanctuary preferred regulatory alternative and the status quo alternative. There are also two regulations proposed in the preferred Sanctuary alternative which are intended to facilitate enforcement of the other Sanctuary regulations: these prohibit the possession of Sanctuary resources or interference with enforcement. Overall the proposed regulations are intended:' (1) to improve resource protection by instituting supplementary regulatory, surveillance and enforcement measures and authority; and (2) to minimize negative impacts to human uses, particularly those deemed compatible with the purposes of the Sanctuary. Under section 304(c) of the NMSA, NOAA cannot terminate valid leases, permits, licenses or rights of subsistence use or access existing as of the date of Sanctuary designation, although NOAA can regulate the exercise of such authorizations and rights consistent with the purposes for which the Sanctuary was designated. 2. Fishing Activities: Status Quo -- Preferred: No Additional Regulation Most fishing gear types used in Hawaii's commercial and recreational fisheries, including longline, handline, trolling, and pole and line, do not pose any imm din threats to humpback whales. Large gillnets and drift nets that have led to marine marnmal incidental mortality or injury in other areas, including Alaska, the Pacific West Coast, and the Northeast United States, are not used in Hawaiian waters. Consultations with NMFS, the DLNR's-Division of Aquatic Resources, and the Western Pacific Regional Fishery Management Council' staff resulted in NOAA to determine that no regulation of fishing operations are presently needed to protect 'DLNR-DAR is th ,e lead State agency responsible for maintaininig the aquatic resources within State of Hawaii territorial seas which lie within the Sanctuary. WESPAC is the lead Federal entity that manages fishery resources in Federal waters which lie within the Sanctuary, such as the Penguin Bank area and Pailolo Channel. Final Environmental Impact Statement Page 189 and Management Plan Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary humpback whales and their habitat. The Sanctuary managers will work closely with existing State and Federal fishery management agencies to ensure that impacts on humpback whales and their habitat are considered. Sanctuary staff will also continue to work with the commercial and recreational fishing communities to address their concerns. The preferred regulatory altqmative as depicted in the Sanctuary's Management Plan would place no, additional restrictions on fishing activities and thus have no negative impacts on the fishing industry. Recreational and commercial fishing will continue to-occur within the Sanctuary, subject to regulatory mechanisms currently in place under existing State and Federal authorities, including the 100-yard humpback whale approach regulations, which apply to all users of the marine environment. 3. I=Iqts of Proposed Regulations a. Overflights i. Status Quo: No Additional Regulation 1) Impacts on Resources Before the institution of regulations in 1987 prohibiting the operation of motorized aircraft within 1,000 feet of any humpback whales, helicopters and airplanes could come in close to individual whales in order to give passengers a clear view of them. Even underwater, whales are visible from aircraft in the clear waters surrounding the Hawaiian islands. Low-flying motorized aircraft were identified as a source of possible harassment to humpback whales in Hawaii (Herman et al. 1980; Tinney 1988; Nitta and Naughton, 1989; Townsend 199 1). The close presence or noise of the aircraft may frighten them and elicit a change in their behavior. Shallenberger (1978) and Herman et al. (1980) found however that humpback whales do not react consistently to aircraft. . Aircraft flying as high as 1,000 feet can elicit responses from whales, while aircraft flying at half that height sometimes do not. Factors that may affect humpback whale behavioral responses to aircraft include: aircraft type; engine loudness and pitch; aircraft speed; wind speed, wave height, wate 'r depth, distance from shore, and the age, gender, number and activities of the whales. Effects may be greater on calves, who spend more time at the surface than adults. Low-flying motorized overflights that may effect humpback whales are currently regulated by the NMFS humpback whale approach, regulations. Aircraft operations in Hawaii consist of scheduled commercial operations, air taxi and tour services, general aviation (private flying) and military aircrafL The regulations prohibiting the operation of any motorized aircraft within 1,000 feet of any humpback whale applies throughout Hawaii's EEZ and does not target geographical areas of humpback whale habitat or distribution. The National Park Service is also considering promulgating more, restrictive overflight restrictions for tour aircraft and helicopters above Volcanoes and Haleakala National Parks. 2) Impacts on Users The charter helicopter and airplane industry is rapidly growing throughout the main Hawaiian Islands. Tourists are flown to scenic areas - 'volcanoes, valleys, mountains, waterfalls and coastal areas -- to experience the beauty and splendor of H;iwaii. The 1,000 feet overflight regulation was designed to create a "safety bubble" around humpback whales so they would not be disturbed by low-flying motorized aircraftj especially during their critical breeding stage. NOAA has concluded based on the growth in the local aviation industry since 1987, when the approach regulations were implemented, and the lack of documented complaints from pilots or of problems Page 190 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action with the enforcement, that the regulations have not adversely impacted the tour aircraft industry in Hawaii. ii. Sanctuary Alternative -- Preferred: Prohibit the operation of any motorized aircraft within 1,000 feet of any humpback whale unless authorized by the ESA or N4M[PA 1) Impacts on Resources The distinction between this alternative and the Status Quo alternative is the additional authority for the Sanctuary to enforce and penalize any violations of the NMFS overflight regulation, in that violations of the overflight regulations are subject to NMSA enforcement mechanisms. These include a higher potential maximum civil penalty for offenders than those under a MMPA or 'ESA violation. NOAA-SRD will consult with the NNTS-Office of Enforcement (OE) and the State of Hawaii on any violations of Sanctuary overflight regulations. The existence of a higher maximum civil penalty should provide an additional deterrent to illegal overflight activities, thereby increasing protection for humpback whales. The Sanctuary overflight regulation also ensures that SRD play a role in any future changes in the overflight regulations that may impact humpback whales. In addition, the Sanctuary will continue to offer the context for coordination of various activities that might affect humpback whales and their habitat, including reviewing and commenting on proposed activities that may impact the whales and coordinating with existing agencies to address potential conflicts. The Sanctuary's education and research programs can also help benefit whales and whale habitat. 2) Impacts on Users Private, commerciaL charter and military aircraft regularly fly within the boundaries of the Sanctuary. However, all of these aircraft are presently subject to the NMFS 1,000-foot "safety bubble" over humpback whales. The Sanctuary would not add any new prohibitions or permit requirements so there would be no negative economic impacts to aircraft operators. Passengers would still be able to enjoy general scenic and whale observation opportunities, albeit from altitudes of 1,000 feet or greater if flying above humpback whales. The regulation recognizes that many airports in Hawaii are located near the water and contains a provision that exempts aircraft from the regulation when in any flight corridor for takeoff from or landing on an airport or runway. However, this exemption applies only to Sanctuary regulations (and potential for Sanctuary civil penalties) and does not exempt such activities from the NMIFS 1,000 foot overflight regulation. There may be an overall positive socioeconomic effect on the aircraft and tour industry. Given a better understanding of humpback whales and the regulations -protecting them, and given the educational focus of enforcement officers, the helicopter and airplane tour experience would be improved. Better coordination, enforcement, education, and participation in the Sanctuary management process may increase industry compliance with regulations. As such, the industry may actually experience an overall reduction of any impacts of these regulations and better overall dialogue with resource managers. Ultimately this will provide additional protection for humpback whales. The Department of Defense (DOD) has consulted with SRD on military activities that 'involve flights below 1,000 feet. The DOD, through the U.S. Navy, also has consulted with NWS regarding its activities in Hawaiian waters. No adverse affects to fisted species were identified, provided that certain mitigative measures were instituted by the various commands active in areas where humpback whales occurred. DOD has standard operating procedures and training protocols in place to assure that pilots avoid humpback whales. DOD remains subject to all applicable -requirements of the MMPA and ESA. Final Environmental Impact Statement Page 191 and Management Plan Pan IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary Pilots -and researchers that need to fly within 1,000 feet of humpback whales for research purposes are required to obtain a NUFS research permit. The Sanctuary will have the opportunity to review and comment on research pem-iit applications submitted to NMFS, with the purpose of ensuring that Sanctuary resources are adequately protected. It is possible that SRD involvement in the review process could result in changes that would involve minor costs in time to applicants, but no significant socioeconomic impacts are anticipated. b. Approaching Humpback Whales i. Status Quo: No Additional Regulation 1) Impacts on Resources Thereare many different types of vessels currently operating in and near the Sanctuary, including oil tankers, military ships, container ships, tug and barge, fishing boats, cruise ships, tour boats, whalewatching vessels, dive boats, zodiacs, sail boats, kayaks, thrillcraft, and a variety of recreational craft. The effects of vessel traffic on whale behavior have been studied using shorestation observation of whales at varying distances from vessels (Bauer 1986; Baker et al. 1982; Baker 1983, Green 1990), and aerial surveys of boat-whale interactions. Thus far, most research has focused on identifying short-term responses to vessels. Long-term changes to humpback whale distribution or behavior has not been investigated in Hawaii. Contact between vessels and whales may occur when vessels approach whales or when whales approach vessels of their own accord. Humpback whales will often respond to approaching vessels by avoiding contact. Several scientists have investigated the effects of approaching vessels on humpback whales and noted short-term "horizontal avoidance behavior consisting of faster swimming and longer dives, 'followed by "vertical avoidance" behavior, consisting of longer dive times (Baker and Herman 1989; Green 1990; Forestell et al. 1990). There is no clear indication that any one type of vessel has a greater effect on whales than any other, except that small, high-speed thrillcraft or other highly maneuverable craft apparently cause a greater-than-average avoidance response (Green 1990; Forestell et al. 1990). Long-term implications of these short-term behavior modifications are unknown. More research is needed to investigate the long-term effects of human-whale interactions. Increasing humpback whale and human populations will likely mean mom interactions in the future. All approaches to humpback whales are subject to the NMFS approach regulations throughout Hawaii's Exclusive Economic Zone (EEZ). These regulations make it unlawful: (a) to approach a humpback whale within 100 yards; (b) to cause a vessel or other object to approach a humpback whale within 100 yards; or (c) to opemte any motorized airm-aft within 1000 feet of a humpback whale. The regulations apply to all commercial, recreational and military vessels, and to buman swimmers or humans with objects such as windsurfers. The purpose of these regulations is to avoid direct coflision,with or harassment of whales. The State of Hawaii has incorpomted the NMFS approach regulations into State code and can enforce these regulations under State law (HRS Title 13, Subtitle'l 1, �244-40). The State imposes additional restrictions on conunercial and recreational thrillcraft, water sledding, parasailing vessels and high speed motorcraft during the whale season (December 15 to May 15) in its "Humpback Whale Protected Waters" located off West and South Maui (HAR, Title 13, Chapter 256-112). In addition, to reduce the occurrence of a vessel collision or grounding, the U.S. Coast Guard (USCG) established a voluntary vessel truffic lane which routes larger vessels, such as oil tankers and container ships, to the north side of Oahu and into the commercial ports near Honolulu or Barber's Point. Page 192 Final Environmental Impact Statement and Management Plan. Hawaiian Islands Humpback Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action In the short term, these approach regulations help minin-iize incidences of direct humpback whale harassment and presumably help the whales to carry out their normal activities in Hawaiian waters with reduced levels of disturbance from humans. However, no studies have investigated the long-term effectiveness of these regulations in increasing the humpback whale reproductive rates or rates of survival. 2) Impacts on Users The NMFS humpback whale approach regulations have been in existence since 1987. Enforcement records indicate there has been no major impacts on vessel traffic or operations (see Table W-3). These 100-yard approach regulations do not prohibit or unnecessarily restrict the operation of vessels in the Hawaiian Islands. The regulation specifically governs all individuals or vessels approaching whales within 100 yards throughout Hawaii's EEZ. Although citations can, be issued for violations of these regulations, no one user group has been entirely restricted or disadvantaged by the presence of the regulation (see Table IV-3). A discussion of enforcement activities is given in Part H(D)(3), Part M(B)(3)(iii), and Part V(D)(4). NMFS has developed a Cooperative Agreement with USCG and the Hawaii DLNR- Department of Conservation and Recreation Enforcement (DOCARE) regarding enforcement activities related to the humpback whale approach regulations. DOCARE officers have been deputized to enforce the Federal whale approach regulations. T"he State of Hawaii may also pursue violations of State humpback whale approach regulations and thrincraft restrictions in specific areas from December 15 to May 15 under State regulations. ii. Sanctuary Alternative -- Preferred: Prohibit approaching or causing another vessel or other object to approach within 100 yards of a humpback whale unless authorized by the ESA and MENTA. 1) , finpacts on Resources Under this alternative, the ESA/NllvWA humpback whale approach regulations would be incorporated as Sanctuary regulations. The distinction between this alternative and the status quo alternative discussed previously is the additional authority for the Sanctuary to enforce ESA and MWA "approach" regulations under the NMSA and to be involved in the NMFS permit review process. Thus, the Sanctuary will have the authority under the NMSA to apply enforcement mechanisms and pursue civil violations of these approach regulations, and will be more directly involved in humpback whale protection and management efforts. The net effect of the regulation will benefit humpback whales and their wintering habitat (as encompassed by the Sanctuary) due to increased deterrence and compliance with regulations in place to protect the whales from potentially harmful approaches. Also, since this regulation focuses attention on a certain types of activity (approaching whale by boat), Sanctuary education and research programs can be focused on these activities that have the most potential for negatively impacting the whales. The overall result is greater knowledge of and protection for humpback whales and their habitat. A public that is better informed because of Sanctuary resource protections regulations will be more aware of the need to respect Sanctuary resources and will be more likely to comply with these existing approach regulations. The net environmental effect of this regulation on the Sanctuary area will be positive., 2) Impacts on Users As an insular state, Hawaii is dependent upon commercial shipping (and inter-island barging) to import and export goods and petroleum products. The marine recreation industry also contributes significantly to the Hawaii economy: it accounted for $560 minion in 1992 (MacDonald and Deese, 1994). SRD recognizes that the boating and shipping industry is crucial Final Environmental Impact Statement Page 193 and Management Plan Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary to the economy of Hawaii and is not proposing to institute additional regulatory prohibitions -on vessel traffic. The socioeconomic impacts of this regulatory option are expected to be small and positive. No additional and substantive vessel traffic restrictions would be added to the NMFS 100-yard approach regulations. The Sanctuary regulation is'merely supplementing existing prohibitions, and not adding additional permits or authorization requirements. The distinction between this alternative and the status quo alternative discussed previously is the additional authority for the Sanctuary to enforce ESA/NWPA approach regulations under the NMSA. Under the NMSA, the Sanctuary can impose higher maximum civil penalties for violations of Sanctuary regulations than is possible under the MMPA or ESA. The maximum is $100,000 under the NMSA, and $25,000 under the MNWA and ESA. The maximum civil penalty would not normally be applied except possibly for repeat offenders or particularly egregious offenders. Impacted users would be limited to only those persons subject to the regulations (as opposed to all users of the Sanctuary), and of those, only those persons in violation of Sanctuary regulations. The actual impact on those persons in violation of Sanctuary regulations will be relatively small because enforcement mechanisms are not limited. to civil penalties. ' Rather, oral and written warnings are given routinely in lieu of civil penalties (See Table IV-3). Further, with interpretive enforcement, users subject to Sanctuary regulations will be educated as to what the regulations are and why they are in place, thus increasing future voluntary compliance and decreasing those potentially subject to civil penalties. Consequently, there wW be few impacts to Sanctuary users. Education and interpretive enforcement focusing on the Sanctuary approach regulation will result in greater public compliance of the regulation which will benefit humpback whales, thus increasing the experience (enjoyment of the experience as well as recreational and aesthetic experience) of Sanctuary resources for all Sanctuary users. Further, in those instances where a ,person who violated a Sanctuary regulation was assessed a civil penalty under the NMSA, those civil penalty monies will be returned to the Sanctuary for management and improvement (e.g., education and outreach), as opposed to being deposited in the general U.S. Treasury. Finally, NMSA enforcement will be coordinated with existing State and Federal authorities to minimize duplication of effort, thus minimizing potential cumulative effects on those users in violation of Sanctuary regulations. C. Taking Humpback Whales i. Status Quo: No Additional Regulation 1) Impacts on Resources Humpback whales are currently protected by the MWA and the ESA, which are both implemented by NMFS. The ESA and MWA prohibit the "take" of all marine mammals and endangered species, a term broadly defined under the two laws. The NIWA defines "take" as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine rnammal,111 and the 1994 amendments to the NUvIPA define harassment as a any act of pursuit,- torment, or annoyance which (at Level A Harassment) "has the potential to injure a marine mammal or marine mammal stock in the wild7' or (at Level B Harassment) "has the potential to injure a marine mammal stock in the wild by causing disruption of behavioral patterns including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering." The approach regulations promulgated by NMFS are thus in fact a protective measure to prevent harassment of humpback whales. NMFS also has the authority under the ESA to The ESA (1988) similarly defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect, or attempt to engage in any such-conduct." Page 194 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action designate and protect oceanic habitats that are found to be critical for species listed as endangered, such as the humpback whale. The N01PA, which was reauthorized in 1994, requires NMFS to establish Regional Scientific Review Groups to examine the impacts of human and envimm-nental factors on marine mammals, and to develop and implement conservation plans to alleviate such impacts. The NMFS Regional Scientific Review Groups have not yet been established and their scope will include topics other than humpback whales. Potential threats to humpback whales range from direct injuries or harassment of a single animal or population to indirect or cumulative degradation of their habitats. Neither the MNTA nor the ESA ftilly prevent such degradation of habitats. Section 7(a) of the ESA requires consultations on Federal actions which may affect endangered species or their critical habitats. However, this section applies only to activities authorized, funded, permitted, or carried out by the Federal agencies, not to direct private or state actions. The anticipated net effects of the status quo alternative on Sanctuary resources are expected to be positive. The N&TA and ESA "take' regulations help minimize incidences of direct humpback whale harassment and harm, and presumably help the whales to carry out their normal activities (resting, breeding, calving and nursing) in Hawaiian waters with reduced levels of disturbance from humans. The 'take" regulation is a standard regulation applied to all marine mammals under the MWIPA and ESA, and prohibits persons from harassing, hunting, capturing, killing or attempting so conduct such an activity. This regulation, as implemented through the MbTA and ESA, was responsible for ending the commercial whaling in the U.S. EEZ and allowing whale populations, including humpbacks, to naturally recover. 2) Impacts on Users The NRAPAYESA marine mammal 'take" regulations have been in existence since 1972. Enforcement records indicate there has been no major impacts on vessel traffic or operations (see Table IV-3). Since 1987, most enforcement actions resulted from persons in violation of the 100- yard approach regulation and not the "take" regulation. The 't*e" regulation specifically governs all individuals or vessels approaching whales throughout the U.S. EEZ. Although citations can be issued for violations of these regulations, no one user group has been entirely. restricted or disadvantaged by the presence of the regulation. A discussion of enforcement activities is given in Part H(D)(3), Part III(B)(3)(iii), and Part V(D)(4). NMFS has developed a Cooperative Agreement with USCG and the Hawaii DLNR- Department of Conservation and Recreation Enforcement (DOCARE) regarding enforcement activities related to the humpback whale approach regulations. DOCARE officers have been deputized to enforce the. Federal ESA&&TA "take" regulations. The State of Hawaii may also independently pursue violations of State humpback whale "take" regulations. ii. Sanctuary Alternative -- Preferred: Prohibit the "taking" or possession of humpback whales (or parts) unless authorized under the ESA and MNIPA. 1) Impacts on Resources Under this alternative, the ESAMVIPA humpback whale "take" regulations would be incorporated as Sanctuary regulations. The distinction between this alternative and the status quo alternative discussed previously is the additional authority for the Sanctuary to enforce ESA and MNTA "take" regulations under the NMSA and to be involved in the NMTS permit review process. Thus, the Sanctuary will have the authority under the NMSA to apply enforcement mechanisms and pursue civil violations of these approach regulations, and will be more directly involved in humpback whale protection and management efforts. The net effect of the regulation Final Environmental Impact Statement Page 195 and Management Plan Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary will benefit humpback whales and their wintering habitat (as encompassed by the Sanctuary) due to increased deterrence and compliance with regulations in place to protect the whales from potentially harmful "takes". Also, since this regulation focuses on a certain types of activity (harass, kill, hunt, capture or attempt to do so), Sanctuary education and research programs can be focused on these activities that have the most potential for negatively impacting the whales. The overall result is greater knowledge of and protection for humpback whales and. their habitat. A public that is befter informed because of Sanctuary resource protections regulations will be more aware of the need to respect Sanctuary resources and will be more likely to comply with these existing "take" regulations. The net environmental effect of this regulation on the Sanctuary area will be positive. 2) Impacts on Users The socioeconomic impacts of this regulatory option are expected to be small and positive. No additional and substantive "take" prohibitions would be added by the Sanctuary to the existing ESAMMPA 'lake" regulations. The Sanctuary regulation is merely supplementing existing prohibitions and not adding additional permits or authorization requirements. The only distinction between this alternative and the status quo alternative discussed previously is the additional authority for the Sanctuary to enforce ESA/MWA "take" regulations under the NMSA. Under the NMSA, the Sanctuary can impose higher maximum civil penalties for violations of Sanctuary regulations than is po "ssible under the MWA or ESA. The maximum is $100,000 under the NMSA, and $25,000 under the MWA and ESA. The maximum civil penalty would not normally be applied except possibly for repeat offenders or particularly egregious offenders. Impacted users would be limited to only those persons subject to the regulations -(as opposed to all users of the Sanctuary), and of those, only those persons in violation of Sanctuary regulations. The actual impact on those persons in violation of Sanctuary regulations will be relatively small because enforcement mechanisms are not limited to civil penalties. Rather, oral and written warnings are given routinely in lieu of civil penalties (See Table IV-3). Further, with interpretive enforcement, users sub ect to Sanctuary regulations will be educated as to what the regulations are and why they are in place, thus increasing future voluntary compliance and decreasing those potentially subject to civil penalties. Consequently, there win be few impacts to Sanctuary users. Education and interpretive enforcement focusing on the Sanctuary "take" regulation will result in greater public compliance of the regulation which will benefit hurnpback whales, thus increasing the experience (enjoyment of the experience as well as recreational and aesthetic experience) of Sanctuary resources for all Sanctuary users. Further, in those instances where a person who violated a Sanctuary regulation was assessed a civil penalty under the NMSA, those civil penalty monies will be returned to the Sanctuary for management and improvement (e.g., education and outreach), as opposed to being deposited in the general U.S. Treasury. Finally, NMSA enforcement will be coordinated with existing State and Federal authorities to minimize duplication of effort, thus minimizing potential cumulative effects on those users in violation of Sanctuary regulations. d. Discharges or Deposits -i. Status Quo: No Additional Regulation 1) Impacts on Resources Under the status quo alternative, discharges and deposits will continue to pressure the resources of the coastal zone. As the population of Hawaii continues to increase, human uses of the ocean and adjacent watersheds will result in an increase of discharges and deposits into Hawaii's nearshore -waters (OSP 1996). The consequence to humpback whales of continuing with Page 196 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action the status quo will be further degradation of the humpback whale's habitat, particularly in coastal areas which are of critical importance to newly born calves. The cumulative effects of point source pollution, including sewage spills, and non-point source pollution from surface runoff and airborne contaminants can result in degraded water quality, algae blooms, and other problems (OSP 1996). These problems 'have begun in particular to affect nearshore areas such as West Maui and Marnala Bay. The impact of degraded water quality on humpback whales is not known precisely. but some of the pollutants can be presumed to be harmful (Dailey 1985; Taruski et al. 1975). Without a coordinated approach and clear goals for protecting the coastal resources, human activities may continue to degrade the humpback whale's habitat. Although numerous laws and regulations apply to,the disposal of wastes and other types of discharges into the marine environment, most decisions are made on a case-by-case basis and do not focus specifically on investigating the effects of pollutants on humpback whales or their habitat. A coordinated approach and clear goals for protecting whales habitat from further degradation is currently lacking. a) Water quality standards The Hawaii Department of Health (DOH) has developed water quality standards based on Federal EPA water quality standards established. under the Clean Water Act (CWA). DOH classifies marine waters as Class AA or Class A waters, and marine bottom ecosystems are divided intoClass I and Class 11. There are basic water quality criteria applicable to all waters that address floating debris, thermal pollution, turbidity and nearly 100 toxic substances (HAR, Chapter 11 - 54). These criteria are among the most stringent in the Nation (DOH 1990, Water Quality Management Plan for the City and County of Honolulu). DOH is responsible for monitoring and enforcing these standards. b) Discharges from Point Sources The Clean Water Act furnishes some protection to marine resources from the harmful effects of effluent discharges. Under the status quo alternative, the Hawaii Department of Health (DOH) would continue to regulate and monitor point source discharges, including stormwater discharges, through the National Pollution Discharge Elimination System, (NPDES) permitting process, water quality certifications, and other general permits. DOH's primary concern is about human health. DOH does not have the staff, resources, or mandate to monitor or consider discharges from the perspective of humpback whale health. Two outfall plants, the -Sand Island and HonouliuU Wastewater Treatment Plants, n ow discharge partially treated waste directly into ocean waters off Oahu outside the preferred Sanctuary boundary alternative. The Environmental Protection Agency (EPA) and DOH have issued a Clean Water Act 301(h) waiver of secondary treatment requirements for these two wastewater treatment plants until additional studies determine the relative impacts of these discharges on nearshore resources (Mamala Bay Study Commission, 1993). Ocean outfalls and injection wells scattered throughout the state also discharge municipal wastes, industrial wastes and agricultural wastes which have received secondary treatment. Ocean outfalls, particularly those discharging partially treated matter in nearshore waters, are monitored but must be assessed to determine their impacts to humpback whales and whale habitat. While research specifically investigating water quality effects on humpback whales is lacking, data from more general studies on water quality could be used to address management concerns or structure future research projects. While existing Federal and State regulations are intended to achieve a permanent reduction of harmful waste loads in the interests of marine environmental protection, limitations on resources and other obstacles have hindered implementation and regional waste treatment facilities are still not equipped to render ocean Final Environmental Impact Statement Page 197 and Management Plan Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary discharges environmentally safe. For example, a number of discrete areas around. Hawaii 'have degraded water quality to varying degrees, including Kaneohe Bay, Marnala Bay, and West Maui. Local land point-source pollution, including _municipal, industrial, and agriculture discharges; and non-point source discharges, from urban runoff and agricultural practices (discussed below) are believed to be the cause of these problems. More research is needed on the relative culpability of these sources;'on the potential health threats to whales, and the marine environment generally, and on the best solutions in terms of management. The continued decline in water quality, reduction in fish catches, and beach closures from occasional sewage spills are all signs of continuing pressure on the marine resources of Hawaii. It can be assumed that the demands of an increasing human population will likely result in further degradation of water quality in the absence of a comprehensive and coordinated management effort. There is no single agency that reviews the discharges from the perspective of their effect on humpback whales or on the health of the habitat which whales depend on. c) Pollution from Non-Point Sources Non-point source pollution is mainly a consequence of land use practices of farmers, resort developers, construction companies and everyone else who affects surface runoff in the watershed. Surface runoff may contain various amounts of pollutants including heavy metals, toxins, pesticides, herbicides, fertilizers, infectious pathogens, and inorganic sediments. Evidence is growing that coral reefs and nearshore habitats have been harmed by non-point sources of pollution and sedimentation. It is also possible that pollutants enter the ocean surface from discharges into the air but the magnitude and effects of these airborne pollutants on whales have not been studied. Madne rnamm-al are known to bioaccurnulate PCB's and other pollutants in their tissues (Taruski et al., 1975). It is not known how much of this pollution is absorbed directly through their skin, eyes and other membranes in comparison to -how much is taken in through swallowing water or eating contaminated food. However, since humpback whales are not known to regularly feed in HawaiL food ingestion is the least likely of these sources. Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA), which amended the CZMA requires states with C2M programs to develop and implement coastal non-point pollution control programs to be approved by NOAA and EPA. State programs are to be developed jointly by the coastal zone management agency and the water quality agency, and must be based on guidelines developed by the EPA and NOAA. Hawaii responded to these requirements by coordinating the existing efforts of the Hawaii Coastal Zone Management Program (CZMP) and DOH. To assist with program development of the Coastal Non-Point Pollution Control Program Management Plan, the C2M Program convened an informal working group and created five focus groups (agriculture, forestry, urban, marinas and recreational boating, hydromodifications and wetland/riparian areas) which met on a regular basis. The Hawaii CZMP submitted the draft non-point pollution management plan to NOAA and EPA in July 1996. The plan address over 56 management measures which will be implemented through both regulatory and non-regulatory mechanisms. The management measures are based on technical and economic achievability, rather than on cause-and-effect linkages between particular land use activities and particular water quality problems. The intent of the Hawaii coastal non-point pollution control program is to build upon, rather than duplicate, existing programs. The array of existing programs will be loosely bound together in a "network" under the rubric of the Coastal Non-Point Pollution Control Program. The program should be fully developed by the end of 1997. The Hawaii CZMP and DOH, with significant assistance from other State, Federal, and county agencies, non-governmental organizations, and individuals, have jointly -developed Hawaii's Coastal Non-Point Pollution Control Program management plan. The Coastal Non-Point Pollution Control Program will continue to rely on the resources, expertise, program, and authorities of other agencies and organizations during its continuing development and Page 198 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action implementation. In addition, opportunities for public participation will continue to be part of Hawaii's coastal non-point pollution control program. d) Hazardous Waste, Oil, and Trash Disposal Pollutants and trash from vessels or upland sources are sometimes transported far distances by ocean currents before reaching the Hawaiian Islands. Marine mammals can ingest litter and have been found entangled in plastic packing material or discarded fishing gear worldwide, although the incidence of marine mammal entanglement is generally higher in areas where commercial fishing activities and marine mammal feeding occur simultaneously, such as Alaska. NMFS has indicated that commercial fishing activities in Hawaii do not pose significant threats to humpback whales (Nitta and Naughton, 1989). Ile incidence of mortality or disturbance associated with marine debris remains unclear. The Marine Plastic Pollution Research and Control Act (MPPRCA) of 1987 amends the Act to Prevent Pollution from Ships. The purpose of the amendment is to implement Annex V of the International Convention for the Prevention of Pollution from Ships (MARPOL 73178), which prohibits ships from disposing plastics, such as fishing lines and bags. This protects marine animals and seabirds from ingesting these wastes while foraging, or from becoming entangled in debris. The MPPRCA regulations also prohibit, for example, the disposal by ship of paper, rags, glass, metal bottles, crockery and similar refuse less than 12 nautical miles from the nearest 4and; the disposal of dunnage lining and packing materials that float less than 25 nautical miles from the nearest land; and the disposal of victual waste less than 12 nautical miles from land (if ground, 3 nautical miles). Discharges, such as the cooling waters from boat engines and fish wastes, which are used by and discarded from fishing vessels, are unlikely to harm the resources of the Sanctuary. Discharges resulting from military activities in the area, such as smoke markers, sonobuoys and ordinance, are slight and do not appear to pose a threat to humpback whales. As part of their Standard Operating Procedures, the military surveys training sites by air, boat, and passive sonar, when available, for humpback whales, other humans, and wildlife before training activities commence. In the event that humpback- whales are present, the activity will be delayed until the range is clear. DOD vessels are also required to be equipped with oil-water separators. The water effluent from these devices must meet standards of 20 parts per million (ppm) oil within 12 nautical miles from land or 100 ppm, beyond 12 nmi from land. The oil portion is retained on board for shore disposal. During 199 1, the Hazard Evaluation and Emergency Response (HEER) Office of the Hawaii Dept. of Health received a total of 453 oil and hazardous substance emergency spill notifications (Hawaii State Emergency Response Commission, 1992). Over 83% of these notifications originated in Oahu. Petroleum was the most commonly reported material released, accounting for about'70% of spills, followed by spills of unknown origin at about 6%. Miscellaneous other substances such as paint, soap, mercury and sulfuric acid accounted for another 6%. Some of the possible effects of oil spills on humpback whales include: damage to skin or eyes upon contact, fouling of baleen, and physiological problems from ingestion and inhalation. Although the effects of oil on humpback whales has not-been fully investigated, scientists hypothesize that oil could cause short- and long-term harm. Humpback whale calves and pregnant females may be particularly susceptible to spills since they are more likely to be found in nearshore waters and spend more time at the surface. e) Dredged mater ials Dredging activities and their impacts on navigation and the environment are regulated by the U.S. Army Corps of Engineers (Corps) under Section 10 of the Rivers and Harbors Act of Final Environmental Impact Statement Page 199 and Management Plan Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary 1899 (dredging), by EPA and the Corps under Section 404 (discharge of dredge or fill materials within 3-nautical miles of the shoreline) of the Clean Water Act (CWA), and Section 103 (ocean disposal of dredge materials) of Title I of the Marine Protection, Research and Sanctuaries Act (MPRSA; 33 U.&C. � 1401 2t Mq.). Permit applicants are also required to comply with Coastal Zone Management Act Federal consistency requirements, and obtain CWA, Section- 401, Water Quality Certifications prior to being issued a permit by the Corps. Applicants may also be required to obtain separate permits from State agencies for activities conducted within State waters. For example, a DLNR Conservation District Use Applications (CDUAs) permit is required for activities conducted in submerged lands of the State. f) Ocean disposal sites Ocean dumping, municipal outfalls, and dredged material disposal can smother benthic biota and introduce substances into the marine environment which may affect birds, fish and marine mammals. Title I of the MPRSA regulates the transport of materials for the purpose of dumping it into ocean waters. Section 102 of the MPRSA allows the EPA to designate disposal sites or time periods for'dumping that will mitigate adverse impact on the environment to the greatest extent practicable. EPA must develop site man plans that include a baseline assessment of the resources, monitoring, management conditions and the type and amount of materials to be dumped. EPA must also consider the potential impacts of the ocean disposal sites on marine sanctuaries and other protected areas. Section 103 of the MPRSA establishes a permit system by which the Corps may issue permits for the transportation of dredged materials for the purpose of dumping it into ocean waters (in EPA approved sites). The Corps must determine that the dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. In 1980, the EPA, in cooperation with the U.S. Army Corps of Engineers, designated five dredge material ocean disposal sites in Hawaii. All five sites are located outside the proposed Sanctuary boundary in waters deeper than 100-fathoms. Some "clean" dredge disposal materials are used to replenish beach areas or are used to provide shoreline protection in areas experiencing coastal zone erosion. Because of the complexities of sediment, water, and biological interactions, it is dffficult, though necessary. for effective management, to analyze the natural disturbance regime at the potential disposal site and its relation with the associated benthic communities. The effects of ocean dumping on humpback whales or their habitat in Hawaii is unknown. 2) Impacts on Users Under the status quo, existing Federal and State authorities will continue to regulate and monitor discharges and deposits of materials in and outside the Sanctuary. However, most regulatory decisions pertaining to dischargers are made on a case-by case basis with the primary intent of facilitating human uses rather than protecting the environment. Use of nearshore Hawaiian waters for discharges has been adopted as an acceptable alternative without special consideration given to humpback whales or their habitat. Therefore, from the Sanctuary perspective, certain gaps remain in the existing regulatory structure in terms of its mission of protecting humpback whales. Under the status quo, the Sanctuary manager would attempt to work with existing agencies to ensure that humpback whales and their habitat are given due consideration. No Sanctuary regulations or permit requirements would be added. Impacts to users would be insignificant. Sanctuary education and outreach programs may increase compliance 'with regulations and help facilitate public efforts to alleviate or eliminate unnecessary discharges into marine waters. Likewise a research program may be able to answer some of the unknowns concerning the effects of 'discharges on humpback whales. Page 200 Final Environmental Impact Statement and Management Plan Hawaiian Islands Humpback Whale Part IV: Potential Environmental and Socioeconomic Consequences National Marine Sanctuary Associated with Alternative Courses of Action ii. Sanctuary Alternative -- Prefeffed: Prohibit discharges or deposits that take place without, or in violation of the terms -or conditions of a required Federal or State, permit, license, lease or other authorization. 1) Impacts on Resources Under this alternative, the Sanctuary would supplement the authority of existing agencies that regulate discharge and deposit activities. This regulation improves the protection of humpback whale habitat by supplementing enforcement of existing discharge and deposit requirements, thereby strengthening compliance with the terms and conditions of required leases, permits or licenses issued by Federal or State authorities under the Clean Water Act, River and Harbors Act, Marine Protection, Research, and Sanctuaries Act, and relevant State laws and codes. The proposed regulation complements the existing regulatory system and ensures that humpback whales and their habitat are given consideration in existing permit processes. The Sanctuary would work within the permit review processes of relevant State and Federal agencies to ensure that the humpback whale's habitat is maintained and not degraded. The distinction between this alternative and the status quo alternative discussedpreviously is the additional authority for the Sanctuary to -enforce violations of existing Federal and State discharge and alteration of the. seabed regulations under the NMSA and to be involved *in their permit review process. Thus, the Sanctuary will have the authority under the NMSA to apply enforcement mechanisms and pursue civil violations of these discharge and deposit regulations, and will be more directly involved in humpback whale protection and management efforts. The net effect of the regulation will benefit humpback whales and their wintering habitat (as encompassed by the Sanctuary) due to increased deterrence and compliance with regulations in place to protect the whales from potentially harmful discharge and deposit activities. Since this regulation focuses on a certain types of activity (point and non-point discharges, marine construction, dredging), the Sanctuary education and research programs can be focused on these activities that have the most potential for negatively impacting the whales. The overall result is greater knowledge of and protection for humpback whales and their habitat. A public that is better informed because of Sanctuary resource protections regulations will be more aware of the need to respect Sanctuary resources and will be more likely to comply with these existing regulations designed to maintain water quality and the integrity of the seabed. Finally, any information gained through the Sanctuary's long-term research and monitoring programs will benefit the entire marine ecosystem and, in turn, all industries that depend on a healthy marine environment. The net environmental effect of this regulation on the Sanctuary area will be positive. a) Water quality standards DOH has established EPA-approved water quality standards for Hawaii in Chapter 11, HAR, based on Federal CWA standards. Marine waters are classified as either Class AA or Class A (see description of Class AA and A waters in Part II(D)(3)(b)(7)). There are basic State water quality rules that apply to both Class AA and Class A waters that control ocean dumping, thermal pollution, turbidity, and nearly 100 toxic substances (HAR, Chapter 11-54). DOH is responsible for monitoring and enforcing these regulations. The NMSP has no independent water quality standards for individual national marine sanctuaries. NOAA will work with DOH to ensure that water quality is maintained, at a minimum, to the State standards within the Sanctuary. The Sanctuary program will work with other Federal and State agencies to ensure that waters in the Sanctuary are not degraded below these standards or below current water quality levels. Additional research is necessary to determine the need and type of water quality management strategies specific for the humpback whale and its habitat that should be developed. Final Environmental Impact Statement Page 201 and Management Plan Part IV: Potential Environmental and Socioeconomic Consequences Hawaiian Islands Humpback Whale Associated with Alternative Courses of Action National Marine Sanctuary As one of the research priorities, NOAA will focus on relating specific water quality parameters, concentrations, or loadings, to the "health" of the humpback whale in Hawaiian waters. b) Discharges from Point Sources A National Pollution Discharge Elimination System (NPDES) discharge permit is required for discharges from wastewater treatment facilities, stormwater sewers from *medium and large cities, electric generating facilities, industries and agriculture facilities. EPA has delegated, this permit authority to the Hawaii DOH. NPDES permits require dischargers to monitor outfall areas and submit data to DOH on a periodic basis. DOH also performs pollutant source and ambient water quality monitoring it over 76 fixed monitoring stations statewide. The Sanc tuary will work closely with DOH to ensure that Sanctuary concerns are addressed in their existing NPDES permit program. The Sanctuary will not issue independent discharge permits or have independent approval authority. SRD is developing an MOU with DOH. (and DLNR for alteration of the seabed activities) that will specify procedures for Sanctuary review of NPDES permits. A draft of this MOU can be found in Appendix E. The Sanctuary will be able to provide advice and recommendations to DOH on specific permits, but it will not have independent authority to deny any discharge activities issued by DOH. A separate MOU will be developed that will detail enforcement procedures between NOAA and the State. c) Pollution from Non-Point Sources SRD recognizes the great amount of effort undertaken by the Hawaii C2M program and DOH to develop the Coastal Non-Point Pollution Control Program, pursuant to Section 3.19 of the CWA and Section 6217 of the* CZARA. This program includes both regulatory and n.on-regulatory management measures to control non-point source pollution originating from a variety of sources in the State. The Sanctuary will primarily act to assist these agencies implement measures identified in the non-point pollution control program and to identify other technical and financial assistance to implement these programs. The Sanctuary will look toward these agencies to provide guidance and to help identify areas where the Sanctuary can supplement their efforts to implement the water quality plan, especially as it pertains to long-term monitoring programs and efforts to improve the humpback whale's habitat.. Policies that p