HAWAII ISLAND – New rules to prevent disturbance and harassment of Hawaiian spinner dolphins are being proposed by the federal government.

The National Oceanic and Atmospheric Administration has announced a series of public meetings scheduled throughout September to collect comments on “dolphin-directed human activities”. The rules would prohibit swimming with and approaching a Hawaiian spinner dolphin within 50 yards by any means – be it “by vessel, person, or other object”.

If implemented, the rules would go into effect “within two nautical miles from shore of the Main Hawaiian Islands and in designated waters between Maui, Lanai, and Kahoolawe where spinner dolphins are found throughout the day,” NOAA says.

Resident populations of Hawaiian spinner dolphins feed offshore throughout the night and return to Hawaii’s coasts to rest during the day. Because Hawaiian spinner dolphins rest in Hawaii’s sheltered bays and along its coastlines and are one of the most easily encountered cetaceans in the waters of the Main Hawaiian Islands, they are vulnerable to disturbance and harassment. Dolphin-directed activities have grown dramatically in recent years, and the easily accessible Hawaiian spinner dolphins face heavy and increasing pressures from people seeking a dolphin experience. Chronic disturbance to resting activities can negatively affect the health and fitness of dolphins.

NOAA characterizes these regulations as an attempt to stop the “take” of spinner dolphins.

The Marine Mammal Protection Act (MMPA) prohibits the “take” of any marine mammals, including Hawaiian spinner dolphins. Take is defined as “to harass, hunt, capture, or kill” any marine mammal or attempt to do so. “Harass” is further defined by MMPA as any act of pursuit, torment, or annoyance that has the potential to injure a marine mammal or stock in the wild, or potential to disturb a marine mammal or stock in the wild by causing disruption of behavioral patterns. This includes but is not limited to migration, breathing, nursing, breeding, feeding, or sheltering.

Not everyone who gets to within 50 yards of a spinner dolphin will necessarily be in trouble. NOAA Fisheries identified six situations that would count as exceptions to the rule:

1. Persons who inadvertently come within 50 yards of a spinner dolphin, or who are approached by a Hawaiian spinner dolphin, provided they make no effort to engage or pursue the animals, and take immediate steps to move away from the animals.

2. Vessels that are underway and approached by a Hawaiian spinner dolphin provided they continue normal navigation and make no effort to engage or pursue the animals.

3. Vessels transiting to and from a port, harbor, or in a restricted channel when a 50-yard distance will not allow the vessel to maintain safe navigation.

4. Vessel operations necessary to avoid an imminent and serious threat.

5. Activities authorized through a permit or authorization issued by the National Marine Fisheries Service to take Hawaiian spinner dolphins.

6. Federal, State, and local government vessels when necessary in the course of performing official duties.

Down the road, NOAA says there could be future rulemaking to enact closures at certain bays at certain times of day.

On Hawaii Island those locations would likely include Kealakekua Bay, Honaunau Bay, Kauhako Bay, and Makako Bay. La Perouse Bay on Maui has also been identified as a candidate for time-area closure.

Although not proposed in the regulation, NOAA Fisheries is requesting information and comments on the selection of areas, whether time-area closures are necessary in addition to approach regulations, and whether time-area closures, if implemented, should be voluntary or mandatory.

The Proposed Rule was published in the Federal Register on Wednesday, and the Notice of Availability of the accompanying draft Environmental Impact Statement (EIS) will be published in the Federal Register on August 26, 2016. Following the publication, there will be a 60-day public comment period to voice opinions on the proposed rule.

We expect the Final Rule to publish in the Federal Register in August 2017. The final EIS and Record of Decision is expected to be published in July 2017. A 30-day public review will follow that publication. The prohibitions would go into effect in September 2017. NOAA will continue to work with communities to help them understand how the agency’s proposal may affect them.

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

Public meetings are scheduled for:

• September 7th from 5:30 – 10 p.m. at Konawaena High School cafeteria in Kealakekua
• September 8th from 5:30 – 9:30 p.m. at Kealakehe High School cafeteria in Kona
• September 21st from 5:30 – 9:30 p.m. at Kauai High School cafeteria in Lihue
• September 22nd from 5:30 – 9:30 p.m. at Hawaiian Islands Humpback Whale National
  Marine Sanctuary Visitor Center in Kihei
• September 27th from 5:30 – 9:30 p.m. at Roosevelt High School dining Hall in Honolulu
• September 28th from 5:30 – 9:30 p.m. at Waianae High School cafeteria in Waianae

The Department of Land and Natural Resources (DLNR) is supporting the proposed rule.

In a media release, DLNR’s Division of Aquatic Resources administrator Bruce Anderson said “We believe NOAA’s preferred option is reasonable. Two of the five initial alternatives involved closing off entire areas designated as essential daytime habitats. We felt that was going a little too far, but we can support approach rules and eliminating swim-with-dolphins activities.”

Anderson noted that the public comment period for the proposed rule ends October 23, 2016. “We intend to comment,” he said. “The proposed regulations would be in effect within two nautical miles of the main Hawaiian Islands, and within certain designated waters between Maui, Lanai, and Kahoolawe. We will recommend NOAA expand that beyond two miles, all the way out to the limit of the Exclusive Economic Zone, which is 200 miles from shore. We don’t see a rationale for a two-mile limit.”

DLNR says Anderson also hopes NOAA will develop a plan to monitor the effectiveness of the proposed rule, once it goes into effect.