    [From the U.S. Government Printing Office, www.gpo.gov]

                   Hawaiian Islands
                   Humpback Whale
                                                                                                                                 NATIONAL MARINE
                   National Marine                                                                                                 SANCTUARJES
                   Sanctuary

                   Final Environmental Impact Statement                                 Management Plan

                                     %

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                                        A Federal          State Partnership for the Protection of
                                                   Humpback Whales and Their Habitat
                                                                        February 1997

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                   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-
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                    =@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

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                     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

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                 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.

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                                                                                                  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

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                 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

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                                                                                                         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.

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                 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

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                                                                                                              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

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                         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).

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                                                                                                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

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               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

                                                                                                                    ............... ..

                                                                                                              ............     ...

                                                                                                            .. . . . . . . . ..

                                                             ...... ........

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                         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)

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               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).

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             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.
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                  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

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                    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).

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              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

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                   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

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                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).

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                                                                                        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

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               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).

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                            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

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               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

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                  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

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                 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).

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                           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.

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                   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

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                                                                                                            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.

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              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.

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                                                                                                          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,

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                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)

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                                                                                                 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.

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                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.

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                                                                                                 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

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                        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

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                                                                                                     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

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                  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;

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                                                                                                    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.

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                   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.

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                                                                                                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.

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                 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.

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                                                                                                                                                        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

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                 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.

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                   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

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                   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

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                   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).

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                          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

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                          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).

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                 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

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                 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

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                 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

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                                                                                                     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.

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                    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.

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                                                                                                     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)

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                 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.

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                                                                                                   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

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                  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.

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                                                                                                    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

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                  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.

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                                                                                                     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)

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                 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

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                                                                                              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)

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                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

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                                                                                                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

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                 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.

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                                                                                                        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.

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               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.

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                                                                                                        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).

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                         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

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                                                                                                   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,

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               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

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                     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

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                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.

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                                        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.

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                          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;

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                                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

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                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

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                                                                                                  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

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                 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

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                                                                                                      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.

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                         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

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                    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.

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                         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

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                   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

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                 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

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                                                                                                   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

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                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).

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                                                                                                              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

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                 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).

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                                                                                                 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

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               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.

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                                                                                                       National Marine Sanctuary

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                        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

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                          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

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                                                                                                                                       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
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                  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

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                    Page 144                                                            Final. Environmental Impact Statement
                                                                                                      and Management Plan

                Hawaiian Islands Humpback Whale                        Part III: Alternatives and Their Potential Consequences
                National Marine Sanctuary

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                Final Environmental Impact Statement                                                             Page 145
                and Management Plan

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           Hawaiian Islands Humpback Whale Part III: Alternatives and Their Potential Consequences
           National Marine Sanctuary

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           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

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                 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

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                                                                                                  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

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                  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.

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                                                                                                    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

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                 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

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                                                                                                                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.

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                         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.

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                               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.

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                          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,

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                                                                                                     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.

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                         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
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                                                                                                     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

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                  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,

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                                                                                                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.

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                        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.

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                                                                                                           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

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                  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.

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                             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

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                 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

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                                                                                                 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.

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                            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

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                                                                                                       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

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                 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.

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                                                                                                  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

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                 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.

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                                                                                               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

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                    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.

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                            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.

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                    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

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                 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.

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                            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.

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                        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

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                     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."

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                 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

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                    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

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                  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

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                  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

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                 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

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                    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.

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                             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.

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                      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 pertain to water quality developed within the Sanctuary program will be
                      closely reviewed and coordinated with the Coastal Zone Management Program and DOH. The
                      Haw'aii Sanctuary's regulatory structure. will not increase restrictions nor result in reduced
                      flexibility of the Hawaii C2M Program or DOH to implement this program. 'Me Sanctuary has
                      already co-sponsored a coastal water quality position with the West Maui Watershed Program and
                      will provide additional support to the DOH this next year for monitoring projects

                                            d) Hazardous Waste, Oil, and Trash Disposal

                               NMFS, Southwest Region (SWR) is the NOAA representative on the Oceanic Region IX
                      Regional Response Team (RRT), and on the Area Committee established under the Oil Pollution
                      Act of 1990. NMFS-SWR will continue to represent NOAA's interests, including those of the
                      Sanctuary, on the RRT and the Area Committee. NMFS-SWR will coordinate with the Sanctuary
                      Manager on issues that may effect the Sanctuary, and bring those concerns to the attention of the
                      RRT and Area Committee. As appropriate, the Sanctuary Manager will be invited to participate on
                      the RRT and Area Committee by the U.S. Coast Guard and EPA.

                               In the event of a spill, NMFS-SV*7R will coordinate with the RRT and Area Committee
                      according to the provisions outlined in the Federal On-Scene Coordinator Area Contingency Plan.
                      For incidents involving the release or potential release of oil or hazardous materials that injure,

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                  destroy or cause the loss of Sanctuary or other NOAA trustee resources, the Damage Assessment
                  and Restoration Program (DARP) will assume the lead responsibility within NOAA for conducting
                  damage assessment, litigation and restoration activities. SRD may request a co-lead role. NMFS-
                  SWR, Pacific Area Office will coordinate and work with other NOAA members of the Damage
                  Assessment and Restoration Program (DARP), the Sanctuary, and other Federal agencies to ensure
                  that oil spill and hazardous materials wastes disposal response efforts are coordinated.

                          SRD and NNTS are currently developing an MOU to address NOAA management issues
                  in the Sanctuary, including coordination under the Fish and Wildlife Act and Oil Spill and
                  Hazardous Waste Contingency Planning. The Sanctuary will also work with existing government
                  agencies and the public'to promote proper trash disposal and coastal clean-up efforts.

                                      e) Dredged materials

                          Alteration of the seabed activities, including dredge and fill, and their impacts on navigation
                  and the environment are regulated by the Corps under Section 10 of the RHA (dredging), by EPA
                  and the Corps under Section 404 (discharge of dredge or fill materials) of the CWA, and Section
                  103 (ocean disposal of dredge materials) of Title I of the MPRSA. Permits are also required by
                  several State agencies for activities in State waters. The Hawaii Departinent of Transportation
                  issues permits for ocean dredging, filling, construction and dumping materials below the mean
                  high water mark.. A DLNR Conservation District Use Applications (CDUAs) permit may also be
                  required for activities conducted in submerged lands-, which is reviewed by the State Land Board
                  for potential impacts to state lands.

                          The Sanctuary will work within these existing State and Federal permit review processes to
                  ensure Sanctuary concerns are addressed. SRD and NMFS are developing an MOU concerning
                  Federal permits and consultations for activities that- affect the Hawaii Sanctuary. NNIFS will
                  remain the lead, and work closely with the Sanctuary manager to address Sanctuary concerns
                  through existing permit review mechanisms under NEPA and FWCA, and through interagency
                  teams, such as the Pacific Regional Dredging Team administered by the Corps. This consolidated
                  NUFS and SRD permit review will includes all NEPA actions and other permit programs reviewed
                  under the FWCA, such as the CWA Section 404 and RHA Section 10 permits that may affect
                  Sanctuary resources. NNFS will remain the lead agency and coordinate between the Corps of
                  Engineers and EPA.

                          In addition, SRD is developing an MOU with the State of Hawaii (DOH and DLNR) to
                  address discharge and alteration of the seabed activities. This MOU will specify procedures for
                  Sanctuary review of applications for State permits relating to discharge and alteration of the seabed
                  activities in the Sanctuary. A draft of this MOU can be found in Appendix E. The Sanctuary will
                  be able to provide advice and recommendations to DLNR on specific permits, but it will not have
                  independent authority to deny any discharge activities issued by DLNR. A separate MOU will be
                  developed that will detail enforcement procedures between NOAA and the State

                          The Sanctuary will work within these existing permit review structures to ensure their
                  concerns are address, but it will not have independent authority to restrict or deny discharge or
                  alteration of the seabed activities under CWA Section 404, RHA Section 10, State of Hawaii
                  CDUA permits, or other permits issued by other Federal or State agencies.

                                      f) Ocean disposal sites

                          There are currently five EPA-approved ocean dredge disposal sites in Hawaii. None of
                  these disposal sites are located in or adjacent to the proposed Sanctuary boundary. The Corps
                  regulates the transport of dredged materials to these sites. The Hawaii Sanctuary regulations do
                  not expressly prohibit new ocean disposal sites from being located'within or adjacent to the

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                     Associatedwith Alternative Courses of Action                                       National Marine Sanctuary

                     Sanctuary. However, Title I of the Marine Protection, Research, and Sanctuaries Act (Ocean
                     Dumping Act) establishes general criteria for the selection of disposal sites, including a requirement
                     that EPA consider the impacts of such disposal sites on marine resources and areas possessing
                     significant resources, such as marine sanctuaries. Further, Title I requires EPA to prepare an
                     Annual Report to Congress that assesses the extent to which the marine environment has been
                     impacted by materials disposed at ocean disposal sites, including the movement of such materials
                     into marine sanctuaries.

                              Prior to citing a new ocean disposal site in or near the Sanctuary, EPA and the Corps
                     would be required to consult with SRD, pursuant to the section 304(d) consultation provision of
                     the NMSA. - SRD and NUFS have consolidated the NMSA 304(d) and ESA Section 7
                     consultation provisions. NUFS will remain the lead contact and work with SRD to ensure that the
                     Sanctuary's concerns are addresses. Further, sections 306 and 312 of the NMSA make it
                     unlawful for any person to destroy, cause the loss of, or injure any Sanctuary resource, and
                     provides for liability should such occur, respectively. As regarding disposal sites located outside
                     the boundary, the Sanctuary would be concerned if authorized disposals result in sediment plumes
                     -entering the Sanctuary that could or actually injure a Sanctuary resource. At this.time, the relative
                     impacts of degraded water quality and sediments on humpback whales is relatively unknown.

                                      2) Impacts on Users

                              Under this regulatory preferred alternative the Sanctuary would sup             plernent existing
                     authorities that regulate discharge and deposit activities. This regulation. would not place additional
                     substantive prohibitions, more stringent standards, or independent permits on marine users.
                     Instead, the regulation would requires that the Sanctuary work closely within the existing
                     administrative and regulatory framework established by NUFS, EPA, DOH, and the Corps. The
                     Sanctuary would not add a duplicative permitting or approval process and would not prohibit or
                     restrict discharge or deposit activities which do not require Federal or State authorization. Most
                     ports, harbors, small boat basins, and areas of primary sewage discharge in Hawaii are not
                     included in the proposed Sanctuary boundary and would continue under status. quo management,
                     although Sanctuary managers could comment on individual projects outside the boundaries which
                     might affect the Sanctuary.

                              The only distinction between this alternative and the status quo alternative discussed
                     previously is the additional authority for the Sanctuary under the NMSA to enforce violations of
                     the terms and conditions of permits and other authorizations issued by Federal or State authorities
                     for disposal or discharge activities in the Sanctuary. NOAA-SRD will consult with the appropriate
                     Federal or State agency on any violation of discharge and deposit requirements and authorities
                     before any NMSA enforcement ktion is taken. The actual enforcement process will be detailed in
                     an enforcement agreement that will be developed between NOAA and the State of Hawaii's DOH
                     and DLNR.

                              This added enforcement authority would provide a greater deterrent to violations of existing
                     discharge and deposit regulations. 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 MMPA and ESA. - The
                     maximum civil penalty would not be applied except for repeat offenders or particularly egregious
                     offenders. Irnpacted 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

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                  decreasing those potentially subject to civil penalties. Consequently, there will be few impact        s to
                  Sanctuary users.
                           Education and interpretive enforcement focusing on the Sanctuary discharge and deposit
                  regulations 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 ctunulative effects on those users in
                  violation of Sanctuary regulations.

                           e. Alteration of the Seabed

                              i. Status Quo: No Additional Regulation

                                   1) Impacts on Resources

                           Under the status quo alternative, alteration of the seabed activities will continue to pressure
                  the resources of the coastal zone. Deterioration of coastal habitat and degradation of water quality
                  will continue if predicted increases occur in activities that involve alteration of and construction on
                  the seabed (OSP 1996). These activities include-harbor -expansion, nearshore construction,
                  dredging, sand mining and the laying of pipes, cables and mooring buoys on the ocean floor.
                  Such activities can result in the disruption or displacement of habitat by humpback whales and
                  increased turbidity levels. Moreover, loud noises or vibrations associated with blasting, drilling,
                  dredging, and filling may result in the displacement@ injury or even mortality of nearby humpback
                  whales (Townsend 1991; Ketten et al. 1993). Large-scale projects, such as the creation of a new
                  harbor, can cause permanent loss of habitat. While such losses may be small in comparison to the
                  total habitat available, secondary effects such as pollution or human-whale interactions my result
                  from more people using the newly created or expanded harbors, boat ramps, moorings, hotels and
                  condominiums and thus increase potential threats due to whales. The consequence to humpback
                  whales of continuing with the status quo will be ftu-ther degradation of the humpback whale's
                  habitat, particularly in coastal areas which are of critical importance to newly born calves.

                           Most alteration of the seabed activities are overseen by the Corps (RHA, Section 404 CWA
                  and DLNR (CDUA). Both agencies have permit applications and review processes in place to
                  ensure that navigable waters are maintained, human and wildlife needs are addressed, and that the
                  State's public lands are used wisely. However, these permits are evaluated on a project by project
                  basis, and often no consideration is given to the cumulative effects of such activities on humpback
                  whale populations or their habitat. Without a coordinated approach and clear goals for protecting
                  the coastal resources, human activities may continue to degrade the humpback whale's habitat. A
                  coordinated approach and clear goals for protecting whales habitat from ftu-ther degradation is
                  currently lacking.

                                   .2) Impacts on Users

                           The Corps is the primary permit-granting authority at the Federal level, and DLNR is the
                  primary permitting authority at the State level through the CDUA process. The Corps and DLNR
                  circulate permit applications to respective Federal and State agencies for review and comment.
                  DOH for impacts on water quality; NMFS for impacts on marine mammals and fisheries; USFWS
                  for impacts on turtle and seabirds; and EPA if a Federal environmental impact statement is

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                    Part IV: Potential Environmental and Socioeconomic Consequences        Hawaiian Islands Humpback Whale
                    Associated with Alternative Courses of Action                                 -National Marine Sanctuary

                    required. The Hawaii CZMP is responsible for determining whether proposals are consistent with
                    the State CZMA. Each project is evaluated on a case-by-case basis as to its potential impacts on
                    commerce, navigation, human uses, and the environnient.
                           The status quo would not add any new regulations or permit requirements. Existing
                    Federal, State and local authorities would continue to regulate projects involving alteration or
                    construction on the seabed, The Sanctuary would comment on the design and scope of projects as
                    they pertain to humpback whales, through the existing penrnit review processes available to the
                    general public. There would be minimal impacts to human uses from this alternative. The
                    Sanctuary's research and education programs could help ensure that users are familiar with
                    existing rules and regulations. Routine harbor maintenance, expansion or construction would
                    continue to be regulated by the State-of Hawai@ the counties, Corps, and EPA. New ocean dump
                    sites could be established within the Sanctuary upon obtaining EPA and Corps permits. Sand
                    mining is currently prohibited, with certain exceptions under State and county regulations.
                    Department of the Navy activities such as the placement of passive hydroacoustic arrays and cable
                    on the ocean floor or other training exercises would not be affected.

                               ii. Sanctuary Alternative - Preferred: Prohibit alteration of the seabed activities
                                   conducted in violation of the terms or conditions of a required Federal or State
                                   permit, license, lease or other authorization

                                    1) Impacts on Resources

                           Under tins alternative, the Sanctuary would supplement the authority of existing
                    agencies-EPA, COE, DOH, and DLNR--that regulate alteration of seabed activities such as
                    dredge, drill, fill, and construction. This regulation improves the protection of humpback whale
                    habitat by supplementing enforcement of existing alteration of the seabed activities, 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. This regulation
                    does not prohibit or restrict those alteration of the seabed activities which do not require Federal or
                    State authorization. The proposed regulation complements and supplements 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 discussed previously
                    is the additional authority for the Sanctuary to enforce violations of existing Federal and State
                    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 alteration of the seabed activities. The Sanctuary will consult with
                    the appropriate Federal orState agency on any violation before any NMSA enforcement action is
                    taken.

                           Since this regulation focuses on a certain types of activity (dredge, fill, marine
                    construction, cable laying), the Sanctuary education and research programs can be focused on
                    these activities that have the most potential to negatively impact 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

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                 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.

                                 2) Impacts on Users

                         Alteration of the seabed activities, including dredge and fill, and their impacts on navigation
                 and the environment are regulated by the Corps under Section 10 of the RHA (dredging), by EPA
                 and the Corps under Section 404 (discharge of dredge or fill materials) of the CWA, and by
                 Section 103 (ocean disposal of dredge materials) of Title I of the -MPRSA. Permits are also
                 required by several State agencies for activities in State waters. The Hawaii DLNR issues CDUA
                 permits for activities that may affect submerged state lands which are reviewed by the State Land
                 Board. The Sanctuary will work within these existing permit review structures to ensure that
                 Sanctuary concerns as related to the humpback whales and their habitat are addressed. The
                 Sanctuary will not have independent authority to restrict or deny discharge or alteration of the
                 seabed activities under CWA Section 404, RHA Section 10, State of Hawaii CDUA permits, or
                 other permits issued by other Federal or State agencies. This regulation does not prohibit or
                 restrict those alteration of the seabed activities which do not require Federal or State authorization.
                 Most ports, harbors and small boat basins are excluded from the proposed Sanctuary boundary
                 and would continue under status quo management, although the Sanctuary could still comment on
                 projects.

                         SRD and NUFS. are developing an MOU concerning Federal permits and consultations for
                 activities that afkct the Hawaii Sanctuary. NUTS will remain the lead, and work closely with the
                 Sanctuary manager to address Sanctuary concerns through existing permit review mechanisms
                 under N`EPA and FWCA, and through interagency teams, such as the Pacific Regional Dredging
                 Team administered by the Corps of Engineers. This consolidated NNTS and SRD permit review
                 will include all NEPA actions and other permit programs reviewed under the FWCA, such as the
                 'CWA Section 404 and RHA Section 10 permits that may affect Sanctuary resources. NNTS will
                 remain the lead agency and coordinate between the Corps of Engineers and EPA.

                         In addition, SRD is developing an MOU with the State of Hawaii (DOH and DLNR) to
                 address discharge and alteration of the seabed activities. This MOU will specify procedures for
                 Sanctuary review of applications for State permits relating to discharge and alteration of the seabed
                 activities in the Sanctuary. A draft of this MOU can be found in Appendix E. The Sanctuary will
                 be able to provide advice and recommendations to DLNR on specific permits, but it will not have
                 independent authority to deny any discharge activities issued by DLNR. A separate MOU will be
                 developed that will detail enforcement procedures between NOAA and the State

                         The only distinction between this alternative and. the status quo alternative discussed
                 previously is the additional authority for the Sanctuary under the NMSA to enforce violations of
                 the terms and conditions of permits and other authorizations issued by Federal or State authorities
                 for alteration of the seabed activities in the Sanctuary. NOAA-SRD will consult with the
                 appropriate Federal or State agency on any violation of alteration of the seabed requirements and
                 authorities before any NMSA enforcement action is taken. The actual enforcement process will be
                 detailed in an enforcement agreement that will be developed between NOAA and the State of
                 Hawaii's DOH and DLNR.

                         This added enforcement authority would provide a greater deterrent to violations of existing
                 alteration of the seabed regulations. Under the NMSA, the Sanctuary can impose higher maximum
                 civil penalties for violations of Sanctuary regulations than is possible under the MNTA or ESA.
                 The maximum is $100,000 under the NMSA, and $25,000 under the MMPA and ESA. The

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                    Associated with Alternative Courses of Action                                  National Marine Sanctuary

                    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 will be
                    few impacts to Sanctuary users.

                            Education and interpretive enforcement focusing on the Sanctuary alteration of the seabed
                    regulation will result in greater public compliance of the regulations 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
                      . . .   duplication of effort, thus minimizing potential cumulative effects on those users in
                    violation of Sanctuary regulations.

                    D. MANAGEMENT ALTERNATIVES

                        1. ConseQW&nces of No Sanctu= Alternative

                            Should the Sanctuary be rejected by the State of Hawaii and subsequently terminated by the
                    Secretary of Commerce, the main economic impact will be the loss to the State economy of any
                    Federal Congressional appropriations for the Sanctuary, which would otherwise have been spent
                    in Hawaii for salaries, contracts, supplies, rent, etc. Consumer surplus from improved visitor
                    satisfaction due to the Sanctuary's educational,- research and enforcement efforts would also be
                    lost, as would any benefits to the tourist industry from any increases in tourism due to Sanctuary
                    designation. There will be no direct economic impact to user groups from the removal of the
                    Sanctuary from State waters, however, several full time contractors and ongoing education and
                    research projects would be terminated. Existing authorities and regulations will continue to apply,
                    but there will be no central agency coordination, enhanced enforcement, direct public involvement
                    in whale management, and no Sanctuary-sponsored education, research, or interpretation as
                    described in Part V. The human pressure on areas shared with the humpback whale will continue
                    to increase, as will the number of conflicts, even if the whale population remains at its current
                    level. Whether any 'new institutions would be as comprehensive and timly as the Sanctuary is
                    unknown. Humpback whale critical habitat designation by NUFS und            *er the ESA may become
                    more likely, and would probably include certain areas. of the main Hawaiian Islands important for
                    reproduction and nursing activities.

                       2. Qnsequences of Acccpjing Status Qw Al=ative
                            Presently, numerous Federal, State, and various other regional and county government
                    agencies are vested with some regulatory authority over specific resources and human activities.
                    However, no single entity has management jurisdiction to ensure coordinated and comprehensive
                    management and protection of humpback whales and their habitat. Generally, each agency
                    manages a narrow geographic area, species or functional jurisdiction. Present arrangements,
                    therefore, fail to provide the scope and invite the public. participation needed for sufficient
                    protection of humpback whales and their habitat. Although humpback whales are protected

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                  primarily under two laws--the MAPA and the ESA-resource limitations have prevented the
                  implementation of numerous education, research and long-term monitoring and enforcement
                  initiatives. Moreover, the humpback whale and its Hawaiian habitat are not the sole focus of these
                  laws. The formal designation of the. Sanctuary requires the Sanctuary management. to focus on
                  providing coordination of existing regulatory structures and non-regulatory programs to ensure
                  long-term protection of the humpback whales and their habitat.

                         a. Sanctuary Resources

                         The HR*4MSA specifically identifies humpback whales and their habitat as Sanctuary
                  resources. However, the HINMSA also mandates the Sanctuary to identify other "marine
                  resources and ecosystems of national significance for possible inclusion in the Sanctuary." The
                  Sanctuary is not however obligated to include other resources under its management regime. The
                  status quo alternative would only consider the humpback whale and its habitat.

                         This alternative would focus attention on the humpback whale and its habitat as the primary
                  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 humpbacks. This focus on humpback
                  whales satisfies the concerns of many Hawaii resource users who want to minimize the
                  management authority of the Federal Government in State waters. This limited scope may have
                  fewer potential negative or positive impacts on resources users than would the scope of the
                  Sanctuary if it were to include other marine resources or the ecosystem.

                         b. Administration

                         The status quo administrative option would delegate most Sanctuary management
                  responsibilities to an existing Federal or State agency. This option could reduce the administrative
                  costs, including office space and staff, needed to manage a site. However, existing agencies are
                  already limited in their budgets for staff *and programs, and may not be able to effectively
                  implement the numerous responsibilities of the Sanctuary in addition to their own responsibilities.
                  Existing agencies also lack the institutional knowledge and experience that SRD has in managing
                  national marine sanctuaries. Moreover, in this era of shrinking government' agencies, existing
                  agencies may not be able to create the necessary infrastructure or hire sufficient staff to administer
                  the site. Retaining the Sanctuary within an existing agency would also inhibit the development of
                  an independent Sanctuary identity and may actually foster status quo management. In turn, this
                  would not improve and supplement existing management efforts. Sanctuary management would
                  be very -complicated and uncoordinated if the research, education and enforcement components of
                  the management program were split up between different State and Federal agencies.

                         c. Research and Education

                         The existing management system contains no coordination mechanism for maximizing the
                  area's value for research and education, which could best be done through a comprehensive
                  program framework. A variety of different individuals and organizations conduct significant
                  research and outreach efforts in the Hawaiian Islands. Much of this work has been supported by
                  private or non-profit organizations through public contributions and foundation grants.              In
                  addition, government agencies such as the NMFS fund research and education projects when
                  funding is available. However, to date, State and Federal agencies have not had the ability to
                  commit significant resources to support coordinated humpback whale research and education
                  programs. As a result, scientific research and information dissemination on humpback whales has
                  been pursued in a fragmented fashion which often does not address specific management needs.

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                    Associated with Alternative Courses of Action                                National Marine Sanctuary

                            d. Enforcement

                            A reliable and effective enforcement capability is necessary to ensure that regulations are
                    observed. Currently, humpback whale approach regulations are enforced by NMF-S-OE, with
                    assistance by officers from USCG and the Marine Patrol. Officers from these agencies have been
                    deputized through a Cooperative Agreement with NUFS to enforce Federal regulations for the
                    protection of endangered species, including the humpback whale. These agencies have all been cut
                    back in their budgets for staff and operations and have had to reduce on-water enforcement efforts.
                            A Memorandum of Understanding (MOU) exists within NOAA between NMF9 and NOS
                    concerning the enforcement'16f laws within National Marine Sanctuaries (Jan. 1992; amended in
                    March 1993). NMFS-OE is responsible 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.

                        3. ConseguenGes of Sanctu= Preferred Altgmatiye

                            This alternative supports full-time staffing and immediate Sanctuary presence in the
                    Hawaiian Islands in order to cultivate Sanctuary support gained, and Sanctuary management
                    conducted, during the development of the site. The wide variety of opportunities for interpretation
                    and research requires the full-time attention of individual research and education 6oordinators. The
                    Sanctuary Manager would be able to devote her/himself to the comprehensive coordination of
                    existing agencies involved with resource protection. This initiative would help make the transition
                    to full-time management, and to solidify.public support for the Sanctuary in its stewardship role.

                            a. Sanctuary Resources (Future Consideration of Other Resources)

                            In addition to the humpback whale and its habitat, the HH'4MSA calls for the identification
                    of other resources of national significance for possible inclusion in the Sanctuary. At this time,
                    NOAA and the State do not believe that an ecosystem-based Sanctuary is appropriate for Hawaii at
                    the present time because of recent efforts by the State to develop and implement the recently
                    completed Hawaii Ocean Resource Management Plan . However, to fulfill the requirements of the
                    HI114MSA, the Sanctuary has developed a process which provides for the identification of marine
                    resources and ecosystems of national significance for possible inclusion in the Sanctuary. The
                    Sanctuary is not however, obligated to include other resources in the management regime.
                            The Sanctuary Management Plan outlines a process to identify and possibly include. other
                    marine resources based on the support and assistance of the State, the Sanctuary Advisory.
                    Council, user groups, and other members of the public. This process allows a reasoned and
                    participatory approach to identifying resources, gathering information, and soliciting input and
                    support from the public. There is little doubt that the community is divided on this issue. In time,
                    NOAA would prefer to see a large marine ecosystem considered in toto, and including all major
                    species and resources. However, additional resources will only be included after a very thorough
                    review and public process. The impacts of adding additional resources to the scope of the
                    Sanctuary management program would not be known until a detailed analysis is completed of
                    added management measures, if any are determined to be needed.

                            b. Administration

                            Under the preferre  d management alternative, Sanctuary administration functions and-
                    programs would be phased in, with initial emphasis placed on research and education/interpretative
                    activities. An independent administrative and management system would be housed in a NOAA-
                    operated facility; Sanctuary staff members would be hired or contracted as needed. They would
                    work under the direction of the Sanctuary manager to carry out the Sanctuary goals for research,

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                 long-term monitoring, education, outreach and enforcement. As an independent entity that
                 internally has a citizen Sanctuary Advisory Council and other working groups within its
                 management structure, the Sanctuary would be in a better position to coordinate and facilitate
                 discussions between agencies and the public. The socioeconomic impacts would be positive in
                 that the Sanctuary operations would bring money into the Hawaiian economy in terms of salaries,
                 contracts, supplies and facilities, and the programs carried out by the Sanctuary staff would benefit
                 the resources and users of the resources.

                         c. Research and Education

                         The impacts, resulting from implementation of the research and education program are
                 expected to be positive. The research program would coordinate the study of humpback whales
                 and their habitat with developing effective management strategies. The education and outreach
                 program would be designed to enhance public awareness of humpback whales and their Hawaiian
                 habitat, and the importance of protecting such a special marine resource.

                         The research program would provide a coordinated effort to obtain vital baseline and
                 monitoring,data on humpback whales and their habitat, and on human activities in the Sanctuary.
                 Information on the humpback whale's population abundance, distribution, behavior, and habitat
                 needs would be used in assessing the health of the Hawaiian Islands marine. environment and the
                 effects of human activity in the area. This would improve management's ability to develop long-
                 term planning for the Sanctuary and for humpback whale recovery efforts.

                         While some whale research can be done from observation platforms on land using spotting
                 scopes, studies involving photography for. fluke identification, gender determination, behavioral
                 responses, etc. require closer observation of the whales in their natural environment than the 100
                 yards normally allowed Researchers who approach humpback whales within 100 yards are
                 required to get a NWS MMPA/ESA research permit. To avoid a duplicative review process,
                 SRD and   'NMFS-Office of Protected Resources have developed a MOU to jointly review and
                 comment on M[MPA/ESA research permit applications. Thus, the Sanctuary will work within the
                 existing MWA/ESA research permit process to address Sanctuary concerns. The net effect on the
                 research community will be minimal since they will not be required to obtain a separate Sanctuary
                 permit.

                         One of the purposes of the Sanctuary is to conduct or to sponsor research on Sanctuary
                 resources. Much of the Sanctuary-funded research will address specific management issues and
                 provide opportunities for researchers to share techniques and exchange information.               The
                 Sanctuary will work closely with NUFS, the Marine Mammal Commission, MMPA scientific
                 review groups, local and national researchers, and other interested parties to sponsor field
                 workshops, symposia, or other programs to enhance the exchange of information. The Sanctuary
                 will also encourage research on other marine resources and ecosystems so that the Sanctuary
                 Manager, the Sanctuary Advisory Council, and ultimately NOAA can determine whether other
                 resources should be included in the Sanctuary. Research and long-term monitoring programs can
                 provide the Sanctuary and other resource managers with the necessary information for better
                 resource management and protection. The Management Plan proposes that the SAC establish a
                 Research Working Group to focus on'complementing existing efforts and filling needed research
                 gaps.

                          To date, the Sanctuary has provided funds to assist graduate students in the completion of
                 research reports, co-sponsored and funded research coordination meetings and technical
                 consultations, and. funded and collaborated with NMFS to organize a "Workshop to Assess
                 Research and Other Needs and Opportunities Related to Humpback Whale Management in the
                 Hawaiian Islands," held in Kaanapali, Maui on April 26-28, 1995. This last workshop brought

                 Final Environmental Impact Statement                                                          Page 211
                 and Management Plan

                    Part IV: Potential Environmental and Socioeconomic Consequences        Hawaiian Islands Humpback Whale
                    Associated with Alternative Courses of Action                                 National Marine Sanctuary

                    together researchers and resource managers to help NMFS and the Sanctuary identify priorities in
                    the implementation of the Humpback Whale Recovery Plan and the Sanctuary Management Plan.

                            The Sanctuary Education and Outreach Program will also play a crucial role in Sanctuary
                    management efforts. NOAA is a scientific and management agency often described as the "Earth
                    Sciences" agency. The direction received from the leadership of NOAA places great emphasis on
                    using the sciences to benefit the resources as well as the public, either working independently or
                    cooperatively with existing institutions and organizations. Projects will be initiated to achieve one
                    of the purposes of the HE*4MSA, "to educate and interpret for the public the relationship of
                    humpback whales to the Hawaiian Islands marine environment." The Management Plan [Part
                    V(D)] identifies the goals, objectives, and strategies to achieve those objectives. Funds will be
                    used to develop educational programs or support the development of programs which can be used
                    by schools, information or visitor centers, and marinas.

                            The Sanctuary has also sought out opportunities for partnerships with government agencies
                    and the private sector to develop educational outreach programs. For example, the Sanctuary
                    worked with the State, Maui County and the Pacific Whale Foundation to develop the "Watching
                    Hawaii's Humpback Whales" brochure, worked with NUFS to develop a pocket humpback whale
                    information/approac*h regulation guide, participated in numerous whale celebrations, and
                    developed educational displays with other organizations and museums. The Sanctuary has also
                    initiated a Maui Education Working Group to help identify priorities for educational programs and
                    to promote information exchange. This group will serve as a model for an SAC Education
                    Working Group.

                            d. Enforcement

                            The overall impacts of the Sanctuary enforcement program should be positive since its goal
                    is enhanced coordination and support of existing authorities, and to achieve voluntary compliance
                    through education. The authority vested in NMFS under MMPA and the ESA have been used to
                    protect humpback whales in Hawaii since the 1970s. The Sanctuary Management Plan calls for
                    the continued use of that authority to prevent the 'taking" or harassment of whales. The
                    Sanctuary wiU rely upon a MOU between NUFS and NOS concerning the enforcement of laws
                    within National Marine Sanctuaries. Under      'the terms of the MOU, NMFS-OE will provide
                    enforcement in the Sanctuary, in consultation with the Sanctuary manager. NMFS also has a
                    Cooperative Agreement with USCG and DLNR-DOCARE, which deputizes these agencies to
                    enforce MNWA and ESA regulations. The Sanctuary will work with@DOH, DLNR, EPA, USCG,
                    and COE to cooperatively monitor and enforce existing water quality, discharge, and alteration of
                    the seabed regulations. NOAA will consult with the appropriate Federal or State agencies on any
                    violation of discharge and alteration of the seabed requirements and authorities. Ultimately,
                    NOAA will seek to develop a'MOU or other form of agreement between the Sanctuary and other
                    agencies on coordinated enforcement activities and actions.

                            Throughout the Sanctuary scoping process and at subsequent town meetings, numerous
                    individuals and organizations expressed concern that the Sanctuary would lead to closure of their
                    businesses and loss of their livelihoods or way of life. Many were worried that the Sanctuary
                    would become more intrusive in the future and place restrictions on their. activities.     Since the
                    existing authorities will serve as the basis for enforcement, an analysis of historical enforcement is
                    provided below.

                            Table IV-3 shows by year, a history of enforcement of the approach regulations by the
                    NMFS Southwest Enforcement Division, with the number of complaints received (often phoned in
                    by other marine users or other agencies), the type of harassment reported, and warnings and
                    citations issued. While the number of citations reflects to some degree the number of patrol days
                    by agents, it also reflects the reporting of individual observations of violations on land or water.

                    Page 212                                                           Final Envirorunental Impact Statement
                                                                                                      and Management Plan

                                                                                                                                                                                                                                                         z x
                             TAB, L19 IV -3:                Record        of Enforcement Activities for the Protection of Hawaiian                                                        Islands Humpback Whales
                                                                                                                        sh
                        Year        Complaints       Sailing      Power       Wind        Hand        Thrill    Commercial      Aircraft     Whale Research           Other       Total Warnings Citations             Unfounded              aul
                                     Received       Vessels      Vessels     Surfer      Power        Craft      Fishermen                   Watch                                                                     or Lack of             at I
                                                                                                                                                                                                                        Evidence              Da s           CL
                        1976-7              58            3            8          0            0          0             0            3             5          9            0           28 1      2            2-1                             NR
                        1977-8              51            6            7          0            0          0             1            4             3          6            0           27 1      3            4                               NR
                        -1978-9             35            9            7          0            0          1             1            0             1          2            2           23        6            7                               NR
                                                                                                                                                   Ull            ANUARY
                                                                                                          PRETATION OF
                                                                                                                                                      LIS     D
                        -1979-80            16            3            1          0            0          0             0            6             0          6            0.          16        0                                            NR
                        1990-1              24            1            5          0            0          0             0            4             3          8            3           24        0            3                               NR
                        1981-2              28            3            7          0            0          0             0            2             4          7            3           26        12                                           104
                                                                                                                                                                                                                                              116            P_
                        1982-3              66            16           19         3            4          1             1            5             19         It           1           79        21           6                                              ep
                        19834               35            5            11         0            2          2             0            0             7          8            0           35        20           2                               117
                        1984-5              19            5            3          0            2          1             0            0             6          0            1           18        13           .0                              67
                        1985-6
                        Maui                38            6            9          2            1          2             0            3             7          5            3           39        20                            15             80
                        Other Is.           I                          I
                        1986-7
                        Maui                35            8            11         3            0          0             1            0             6          4            2           35        12                            23             76
                        Other Is.           10            1            4          0            1          0             0            0             1          2            2           11        3                             8
                        1987-8
                        Maui                68            19           24         0            4          2             2            1             4          7            6           1         22                            39             73
                        Other Is.           26            1            11         1            0          0             o            o             3          6    1       4           26        7
                                                                                                                                                                                                                               19
                                                                                  JFR C"                                                                                                           i.4 Elt4j'@ 19; 8
                                                                       "0 1. P      ow,        M04
                        1988-9
                        Maui                38            2            8          0            8          2             1            1             9          6            1           38                                      18             57
                                                                                                                                                                                                 8
                        -Other Is.          18            2            7          0            1          0             1            1             2          4            0           [a        7                             9              -
                        1989-90
                        Maui                23            2            to         1            2          1             0            1             3          1            2           23        7                             11             61
                        Other Is.           13            0            6          0            0.         1             0            2             3          1            0           13        0        '_::@':of            12
                        T9-9-6: -I                                                                                                                                                                                                                           Z1
                        Maui                40            4            11         0            4          0                          1             16         7            2           40        12                            19             65
                                            12            2            7          1            0          1             01           1             0          0            0           12        0
                        Other Is.
                        1991-2*             86            0            25         12           24  1      1             0            2             13         0            9           86        11           17".             56             202
                        1992-3*             47            3            10         0            6   1      1             2            0             9          12           4           47        7                             30             122
                        -F9-93-4*           43            3            0          3            9          0             0            0             9          4            8           43                                      39             Ill
                        1994-5
                        Maui                28            1            4          1            7          0             0            2             0          0            13          28      N/A          IN/A               27             103-
                        Other Is.                                      7          0. -0                   1             0            0             5                       3           16      N/A          N/A                0
                        f9-95-6*
                        Maui                41            9            9                       3          3                          3             4                                                                           A
                                                                                                          -                          2             -          I                                N/A          WA              N/A                          CD  0
                                                                                                                                                                           1           41      N/A          N/A             N/                           <
                        Other Is.           19            1            7                       5                                                                                                                                                         o   a
                                                                                                                                                                                                                                                         0
                           NMFS Office of Enforcement concentrates the majority of its humpback whale enforcement in the Four-Island area of Maui County,
                           although the data combines Maui County with the other islands.
                                                                                                                                                                                                                                                         0
                            In 1995-6 there were 2 unknown vessels reported and 10 humpback whale strandings.
              QQ
               a        N/A: Data not available
                                                                                                                                                                                                                                      @
                                                                                                                                                                                                                                              S

                                                                                                                                                                                                                                              M
                                                                                                                                                                                                                                              Pat
                                                                                                                                                                                                                                              Da
                                                                                                                                                                                                                                              NR
                                                                                                                                                                                                                                              NR

                                                                                                                                                                                                                                              2651
                                                                                                                                                                                                                                              02
                                                                                                                                                                                                                                              2

                                                                                                                                                                                                                                                         0

                   Part IV: Potential Environmental and Socioeconomic Consequences         Hawaiian Islands Humpback Whale
                   Associated with Alternative Courses of Action                                   National Marine Sanctuary

                           From 1976 through 1991, most complaints were lodged against power vessel operators,
                   whale watch vessel operators, researchers an     'd sailing vessel operators. Few complaints were
                   recorded against commercial fishers, and no citations have been issued to them. Records show
                   that a substantial number of the complaints have involved activities on islands other than Maui, but
                   that few citations have actually been issued as, a result, whether because of a lack of evidence or
                   because the complaints were felt to be unfounded. 'NMFS-OE requires corroborating evidence to
                   support a complaint in the form of photos, film or video; otherwise, it is difficult to enforce the
                   approach regulations if an enforcement officer is not physically present when the violation occurs.
                   For the latest 1993-1994 season of record, the NMFS investigated a total of 47 complaints during
                   the migration season and took formal action in only eight cases. None of the incidents involved
                   commercial whale watching vessels operating in Maui County. One case involved a charter vessel
                   from Honolulu and another involved a charter helicopter in Kauai County. The remaining six
                   incidents involved private citizens that allegedly violated the NUFS approach regulations (E.
                   Witham, pers. comm. 1994).

                           NNTS issued nearly three times as many warnings as actual citations--4he intent - of
                   enforcement is not to issue as many citations as possible, but rather to achieve compliance with the
                   regulations. The enhanced enforcement the Sanctuary will bring does not necessarily imply an
                   increase in -the number of enforcement officers or in the issuance of citations -for violation of whale
                   approach regulations. Part of the increased effort will be to educate users about the approach
                   regulations and other Sanctuary regulations, as these address activities most likely to have some
                   impact to humpback whales or their habitat. The Sanctuary will also work to initiate and foster
                   better dialogue between the user groups and the enforcement officers. Enforcement efforts will      I be
                   expanded throughout the main Hawaiian Islands if the preferred Sanctuary boundary alternative is
                   ultimately selected. Successful enforcement, however, will be measured over time by fewer
                   complaints and citations, better informed marine users, and higher compliance with the
                   regulations.

                           Historically, citations or fines, for violation of the NNTS humpback whale approach
                   regulations have ranged from a few hundred to several thousand dollars, and, in a few cases, to
                   the confiscation of personal property such as a wind-surfboard. Fines are levied according to the
                   violation and the surrounding circurn tan es. Penalties for regulations established under the
                   NMSA are created under civil law and therefore differ from those established under some other
                   Federal/State jurisdictions within the Sanctuary (those established under criminal law). This will
                   have both positive environmental benefits and overall positive socioeconomic benefits for the
                   Sanctuary. The resources of the Sanctuary will receive a greater level of protection by'providing
                   civil authority to other agencies through cross-deputization. Enforcement of regulations is best
                   facilitated by agencies cross deputizing to enforce civil penalties.    -
                           Civil authority and coordinated enforcement under the NMSA have positive socioeconomic
                   impacts on society in general in that there are cost savings to the publicwhen agencies can share
                   authorities and combine human and material resources. The Sanctuary regulations provide_
                   supplemental civil penalty options. In some cases, civil may be more appropriate than criminal. in
                   some cases, use of both civil and criminal may be appropriate. The resources can be better
                   protected when there are more options for individuals enforcing the regulations. This, in turn,
                   should lead to greater environmental and socio-economic benefits.
                           Civil authority lends itself more freely to an educational and interpretive approach to
                   enforcement of regulations in National Marine Sanctuaries. Simply the message that something is
                   a Sanctuary violation is all that is needed to gain compliance with the vast majority of Sanctuary
                   users. This concept underscore of the most important goals of a Sanctuary enforcement program -
                   - to obtain through education voluntary compliance with regulations in place which provide
                   Protection (directly and indirectly) for humpback whales and their habitat., However, if voluntary
                   enforcement is not effective, the NMSA provides the authority for NOAA to assess civil penalties

                   Page 214                                                            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

                 of up to $ 100,000 per day, per violation. While it is very unlikely that a violation of the whale
                 approach rules would result in the levy of such a high fine, the Sanctuary program has the option
                 to assess a range of civil penalties based on the circumstances of the violation. Furthermore, civil
                 penalties collected under the NMSA may be used to manage and improve the Sanctuary.

                 E., UNAVOIDABLE ADVERSE ENVIRONIMENTAL AND SOCIOECONOMIC IMPACTS

                         The implemen  tation of a management plan designed to protect humpback whales and their
                 habitat will not produce adverse environmental impacts, regardless of the management alternative
                 selected for regulations, boundaries, research, long-term monitoring, education, and outreach.
                 Humpback whales . and their habitat will benefit from additional research, educational and
                 protective measures. The Management Plan does not envision implementing projects related to th6
                 Sanctuary which would degrade environmental quality.

                         The attention drawn by the mere fact of Sanctuary designation may increase the number of
                 tourists to Hawaii, at least temporarily. This in turn will lead to some socioeconomic benefits, due
                 to increased tourist dollars---and some socioeconomic costs, due to increased pressure on the
                 habitat (pollution and human-whale interactions). However, publicity for Hawaii is already high
                 from other causes, and Sanctuary designation is not expected to add substantially to the rapidly
                 increasing annual flow of tourists. Both positive and negative socioeconomic impacts from
                 increased tourism are expected to be relatively minor. A greater consequence of the Sanctuary is
                 likely to be the enhanced experience of those visitors who would have come to Hawaii in any, case.

                         Certain human activities may be affected because of the need to protect the whales. Since
                 the Sanctuary will essentially rely on existing Federal and State authorities to protect the humpback
                 whales and their habitat, these effects will not be attributable to the Sanctuary per se. For example,
                 the State of Hawaii administers ppvisions of the Clean Water -Act regulating point-source
                 discharges and requiring discharges to meet minimum water quality standards.                     These
                 requirements would not change under the Sanctuary management regime and the social and
                 economic impacts caused by them would continue. The Sanctuary may make recommendations on
                 permit applications through consultation with other agencies, that conditions be placed on activity
                 permits in order to lessen impacts on humpback whales or their habitat. These recommendations,
                 if adopted, may place some additional economic or social constraints on the applicant, however,
                 any such impacts will likely be outweighed by the benefits to Sanctuary resources. Moreover,
                 agencies are not mandated to follow such recommendations. Finally, if certain violations of law
                 are prosecuted under the NMSA , violators could potentially face civil fines greater than the current
                 maximum under other laws, although it is likely that in most instances, fines will not significantly
                 increase over those assessed under the MMPA and the ESA.

                 Final Environmental Impact Statement                                                           Page 215
                 and Management Plan

                     Part IV: Potential Environmental and Socioeconomic Consequences            Hawaiian Islands Humpback Whale
                     Associated with Alternative Courses of Action                                      National Marine Sanctuary

                     F. RELATIONSHIP BETWEEN SHORT-TERM USES OF THE ENVIRONMENT AND THE
                         MAINTENANCE AND ENHANCEMENT OF LONG-TERM PRODUCTIVITY

                             Hawaii is one of the largest single breeding areas for humpback whales in the world.
                     Sanctuary designation emphasizes the importance of the humpback whale and its Hawaiian habitat.
                     The overall purpose of the Sanctuary's Management Plan and its strategies for agency
                     coordination, research, education, and enforcement is to enhance long-term protection and         ' increase
                     public awareness and appreciation for these resources. The Management Plan does. not- propose
                     any short-term uses of the environment which would degrade long-term productivity. Increased
                     protection of humpback whale habitat and greater compliance with existing regulations will likely
                     benefit other marine species in Hawaii and contribute to a healthier marine environment in the long-
                     term.

                     G. RELATIONSHIP BETWEEN THE PROPOSED ACTION AND E)USTING RESOURCE
                         MANAGENIENT PLANS

                         I - 1"acts Related to Man=ment Plan R=oses

                             Section 2306 of the HINMSA calls for the preparation of a comprehensive management
                     plan to:
                                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
                                the protection of humpback whales and their habitat.

                             The Management Plan and regulations do not open up access to public and private uses
                     where th  'ose uses and activities are restricted by other laws, regulations, or governance options.
                     For example, the Sanctuary would not open up access to restricted use zones such as the State
                     MLCD's, military exclusion or target zones, or other areas designated by FederaL State, or county
                     authorities with more restrictive standards. The Sanctuary Management Plan would place no
                     prohibitions on activities and uses which are in compliance with existing authorities. The
                     Management Plan provides for the establishment of a Sanctuary Advisory Council which will be
                     representative of the many public and private* uses of the marine environment in order to ensure
                     that the concerns of these users are given every consideration in future Sanctuary related activities
                     (see Part V and Appendix D). The Management Plan also proposes a proactive program to work
                     with various users, including Native Hawaiians, to facilitate their continued use and access to the
                     marine waters.

                                 Set forth         the allocation         of Federal          and State           enforcement
                                 responsibilities, as jointly agreed by the Secretary and the State of
                                 Hawaii; and ensure coordination and cooperation between Sanctuary
                                 managers and other-Federal, State and local authorities with jurisdiction
                                 within or adjacent to the Sanctuary.

                             The Management Plan's preferred regulatory alternative is to utilize existing authorities,'
                     and allow all activities within or outside of the Sanctuary which are conducted under, and in
                     compliance with, a required permit, license, lease or other specific authorization from other Federal
                     and State authorities. One of the benefits of the program will be its ability to ensure coordination
                     and cooperation among appropriate agencies. The benefits associated with such coordination and
                     cooperation are often subtle, but important, because the potential for conflict is minimized and
                     better management decisions are ultimately made.

                     Page 216                                                                Final Environmental Impact Statement
                                                                                                            and Management Plan

                  Haw aiian Islands Humpback Whale               Part IV: Potential Environmental and Socioeconomic Consequences
                  National Marine Sanctuary                                           Associated with Alternative Courses of Action

                               Identify research needs and establish a long-term ecological monitoring
                              program with respect to humpback whales and their habitat.

                           The Management Plan describes the elements of a long-term research and monitoring
                  program along with priorities and a method for determining research needs. The Sanctuary
                  Manager, the Research Coordinator, the Sanctuary Advisory Council, and NMFS will hc1p to set
                  an agenda to meet the goals and objectives of all pertinent legislation--the ESA, the MMPA, the
                  NMSA, and the HINMSA. The task will be to ensure that funding devoted to research and
                  monitoring will complement other activities and to strive to incorporate research findings into
                  management. Many other interested parties are conducting research on humpback whales in
                  Hawaii, including academic institutions, non-profit organizations, and other government agencies,
                  and all have legitimate roles. There may be a point at which coordination between researchers and
                  sharing a common database or research protocol may benefit not only the research community, but
                  the whales as well.

                      2. Relationship BeiReen Sanctu= Management Plan and Other Humpback Whale and Ocean
                           Man=ment Plans and Programs

                           a. Final Recovery Plan for the Humpback Whale

                           The Final -Recovery Plan for the Humpback Whale seeks to achieve a level"of 60 percent of
                  the pre-commercial exploitation population (considered a maximum sustainable yield level) before
                  NMFS will consider downlisting it Erom endangered to threatened, or de-listing the humpback
                  whale as an endangered species altogether (NMFS, 1991). In Hawaii, this would equate to a
                  population of approximately 9,000 whales for the eastern North Pacific stock. Recent estimates
                  indicate that perhaps some 3,000 whales migrate to Hawaii each winter (Mobley et al. 1993). It
                  may take many more years of directed or focused attention, not just in Hawaii, but in Alaska and
                  other Pacific Coast environments and perhaps the waters off Japan, to ensure that the population
                  can continue to increase by ensuring that human activities remain compatible and habitats remain
                  conducive to the recovery effort.

                           The Final Recovery Plan identifies four major objectives which will help lead to a recovery
                  of the whale population. The objectives include:

                           � maintain and enhance habitats used by humpback whales currently or historically;
                           � identify and reduce direct human-related injury and mortality;
                           � measure and monitor key population parameters; and
                           � improve administration and coordination of recovery program for humpback whales.
                           Both the Management'Plan and Annual Plans for the Sanctuary will be able to materially
                  assist in achieving these objectives and many of the relevant sub-tasks identified under each
                  objective. The Management Plan suggests that the Recovery Plan serve as a guide to direct some
                  of the future efforts of Sanctuary implementation. Furthermore, in Hawaiian waters, the
                  Sanctuary will be able to provide a leadership role in recovery; as one Sanctuary objective is to
                  provide a comprehensive and coordinating role for the protection of humpback whales. The
                  National Marine Sanctuary Program will be able to form linkages and support for NMFS activities
                  in these other areas of the Pacific in order to develop a more comprehensive program for
                  humpback whale protection.

                           b. Hawaii Ocean Resources Management Plan

                           In order to understand how the Sanctuary will be coordinated with the existing
                  management regime in Hawaii, it is useful to examine the State's policy on marine ecosystem
                  protection as articulated in the Hawaii Ocean Resources Management Plan (ORMP) developed by

                  Final Environmental Impact Statement                                                                    Page 217
                  and Management Plan

                     Part IV: Potential Environmental and Socioeconomic Consequences            Hawaiian Islands Humpback Whale
                     Associated with Alternative Courses of Action                                      National Marine Sanctuary

                     the Hawaii Ocean and Marine Resources Council (OMRC). The                  ORMP    9s I section on marine
                     ecosystem protection presents main objectives and p6licies:

                             The main objective is to:
                             Provide for protection of marine and coastal ecosystems, and establish a comprehensive
                             system of marine and coastal protected areas within an integrated program which protects,
                             preserves, and enhances marine species and areas of exceptional resource value on each
                             main island, representing each of the natural ecosystems and resourcesfound in the marine
                             and coastal environment of the State (OMRC 1991:27).

              V              The four main policies to implement these objective are:
                     Policy A: Expand protection of species, , natural habitats, and other resources of
                     exceptional value, thereby minimizing environmental degradation from marine and
                     coastal activities and uses (OMRC 1991:27).
                             Implementing actions direct DLNR and the Hawa            -Hii Office of State Planning (OSP) to
                     prepare "a comprehensive and cohesive statewide master plan for marine and coastal protected
                     areas ... "; "identify areas of exciptional resource value which should be considered for protected
                     area status"; and "establish a system of marine and coastal protected areas throughout the State to
                     protect the best examples of these natural ecosystems and resources on each island" (OMRC
                     1991:27). The establishment of the Sanctuary in Hawaii can -complement this effort because the
                     HINMSA states that the purposes of the Sanctuary are, inter alia       . ..... to protect humpback whales
                     and their habitat;" "to manage such human uses of the Sanctuary consistent with this subtitle and
                     Title III of the Marine Protection, Research and Sanctuaries Act;" and "...to provide for the
                     identification of marine resources and ecosystems of national significance for possible inclusion in
                     the Sanctuary."

                     Policy B:. Facilitate coordinated and comprehensive inter-agency management
                     where jurisdiction overlaps exist between Federal, state, and county governments
                     in marine and coastal protected areas (OMRC 1991. 28).

                             Implementing actions direct DLNR and OSP, in conjunction with appropriate Federal,
                     State, and county agencies, to "facilitate and coordinate Federal, state, and private-cooperative
                     research and monitoring efforts at developing baseline information regarding the locations of
                     critical habitats of endangered and threatened species"; "Encourage the designation of these critical
                     habitats as protected areas"; and "Encourage joint efforts of Federal, State, county, private, and
                     community involvement in marine life and water quality monitoring programs" (OMRC 1991:28).
                     The establishment of the Sanctuary could complement these efforts. According to the HINMSA,
                     the Sanctuary Management Plan is to "ensure coordination and cooperation between Sanctuary
                     managers and other Federal, State, and county authorities with jurisdiction within or adjacent to the
                     Sanctuary."

                     Policy@ C. Improve enforcement of regulations protecting marine and coastal
                     protected areas and species (OMRC 1991:29).

                             Implementing actions include establishing several Memoranda of Understanding between
                     Federal and State agencies to enable personnel from these agencies to enforce both State and
                     Federal regulations" (OMRC 1991:29). The HRqMSA states that the Sanctuary Management Plan
                     shall "...set forth*the allocation of Federal and State enforcement responsibilities, as jointly agreed
                     by the Secretary [of Commerce] and the State of Hawaii". This builds on efforts already
                     underway such as the cross-deputization of State enforcement agency personnel to enforce Federal
                     laws and regulations. The Marine Patrol has been deputized to enforce NMFS rules regarding

                     Page 218                                                                Final Environmental Impact Statement
                                                                                                            and Management Plan

                  Hawaiian Islands Humpback Whale                Part IV: Potential Environmental and Socio 'economic Consequences
                  National Marine Sanctuary                                           Associated with Alternative Courses of Action

                  harassment of marine mammals. There have been other efforts, to coordinate enforcement
                  activities, such as a UH Sea. Grant supported project called REACH (Resource Enforcement And
                  Conservation Hawaii) that sponsored a series of workshops for Federal, State, and county
                  enforcement agencies to improve coordination and public participation.

                  Policy D: Enhance local community awareness, appreciation, and participation in
                  marine conservation and preservation efforts (OMRC 1991. 29)@,
                           Various implementing actions include holding public programs focusing on natural,
                  culturaL and historical values; facilitating public participation in ocean resources management plan.
                  development; and supporting the development of interpretive centers (OMRC 199 1).                            T he
                  HR*4MSA supports this policy as it states that one purpose of the Sanctuary is to "educate and
                  interpret for the public the relationship of humpback whales to the Hawaiian Islands marine
                  environment." Also, the HRqMSA states that the Sanctuary Management Plan will "promote
                  education, among users of the Sanctuary and the generalpublic, about conservation of humpback
                  whales, their habitat, and other marine resources." During development of the Draft EIS/MP,
                  NOAA provided numerous opportunities for public participation in the planning process.

                           As shown in this analysis, the purposes for which. the S             anctuary has been established
                  complements the State's policies and objectives regarding marine ecosystem protection as set forth
                  in the ORMP.

                  Final Environmental Impact Statement                                                                     Page 219
                  and Management Plan

                     Part IV: Potential Environmental and Socioeconomic Consequences            Hawaiian Islands Humpback Whale
                     *Associated with Alternative Courses of Action                                     National Marine Sanctu

                                                TMS PAGE EqrENnONALLY L= BLANK

                     Page 220                                                                Final Environmental impact Statement
                                                                                                            and Management Plan

                   Hawaiian Islands Humpback Whale                                                      Part V: Sanctuary Management Plan
                   National Marine Sanctuary

                                           PART V: SANCTUARY MANAGEMENT PLAN

                                                            TABLE OF CONTENTS

                                                                                                                              PAGE

                   A. NTRODUCTION                 .............................................................................   223
                        1.   Sanctu= Purgoses          .......................................................................    223
                        2.   Comprehensiy-c Managgment Plan              ......................................................   223
                             a. Purposes of the Management Plan                .................................................  223
                             b. General Uses of the Management Plan                 ............................................  224
                        3.   Sanctu= Goals and Q_bjectives            .........................................................   225
                             a. Short-Term Objectives           ...............................................................   226
                             b. Long-Tenn Objectives            ...............................................................   227

                   B    SANCTUARY BOUNDARY                      ...............................................................   228

                   C.   SANCTUARY RESOURCES                     ...............................................................   229
                        1. Hu=b,%k Whale             .........................................................................    229
                        2. Hmpback Whale Habitat               ................................................................   229
                        3. Other Resg=es of Natignal Significance                  .............................................  229
                             a. Process to Include Other Resources             ................................................   230

                   D.   RESOURCE PROTECTION PROGRAM                            .................................................  231
                        I .  Progmm Descripfion          .....................................................................    231
                        2.   Goals and Qbjectives       .............. ; ......................................................   232
                        3.   SancW= Regulations            ....................................................................   234
                             a. Humpback Whale Protection              ........................................................   234
                             b. Humpback Whale Habitat Protection                ......... : .................................... 235
                             c. Future regulations        ....................................................................    236
                        4.   Enforcement and Surve&nce              ............................................................. 236
                             a. Enforcement Philosophy             ............................................................   237
                             b. Integrating Existing Enforcement Efforts              ..........................................  237
                             c. Conduct of the Enforcement Program                 .............................................  238
                             d. Enforcement Program Goals and Objectives                  ......................................  239
                        5.   Coordination      ...............................................................................    241
                             a. Permit Review         ........................................................................    241
                                  i. ESA and MMPA Permit Coordination                   ........................................  241
                                  ii. Humpback Whale Habitat Permit Review                   .................................... 241
                                       a. NEPA and FWCA Coordination                ............................................  241
                                      b. State discharge and alteration of the seabed permits               ...................... 242
                             b. Sanctuary Consultation           ..............................................................   242
                             c. Oil Spill and Hazardous Waste Contingency Planning                     .......................... 243
                                  i. Existing Capabilities        .............................................................   243
                                  ii. Sanctuary Action        .................................................................   244
                             d. Damage assessment and restoration              ................................................   245
                        6. Research/Long_-Term Monitoring               .......................................................   245
                             a. Introduction      ............................................................ .                  1),1,q
                                                                                                                                     T
                             b . Research and Long-Term Monitoring Program Goals and Objectives                           ......... 247
                             c. Framework for Research             ............................................................   250
                                  i. Baseline Studies       ..................................................................    250
                                  ii. Monitoring      ........................................................................    250

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                                       iii. Predictive Studies       .................................................................     250
                                       iv. Data and Information System               ....................................................  251
                                  d.   Selection and Management of Research Projects                  ......  ............................ 251
                                       i. Research Permits          .......................................   I..........................  252
                                       ii. Annual Sanctuary Research Plan               .................................................  252
                                       iii. Monitoring Research Project Progress               ...  ...................................... 253
                                       iv. Information Exchange           ..................   4........................................   253
                             7.   Education/In=retation             ..................................................................     253
                                  a.   Introduction     .............I ...............................................................     253
                                  b .  Education and Interpretation Program Goals and Objectives                      .................... 254
                                  c.,  Education and Interpretation Opportunities              ..........................................  257
                                  d .  Education and Interpretation Programs              ..............................    I .............. 258
                                       i. On-Site Visitor Programs             ........................................................    258
                                       ii. Visitor Center/Headquarters Programs                ........................................    259
                                       iii. Outreach Programs          ...............................................................     259

                        E. ADMINISTRATION                  .........................................................................       259
                             1.   Site Administration        ........................................................................      260
                             2.   SancM= Advisoa Council                .............................................................      260
                             3.   Other Federal Agcncio          ...................................................................       261
                            .4.   State. Regional. and County Agencies               .................................................     261
                             .5.  CorQatible Uses of the Sanctu=                ......................................................     263
                             6.   Five-Year Review of Managcment Plan                  ................................................    264
                             7.   SpCcial Use Pem3its        ..........................................................      t ............ 264
                             8.   Resource Protection: Roles and Re=nsibilities                    .....................................   266
                                  a. Sanctuaries and Reserves Division               .................................................     266
                                  b. Sanctuary Manager           ...............................................................       : ... 266
                                  c. Sanctuary Advisory Council               ........................................................     267
                                  d. Federal Agencies         .....                                       . ***,***",*******,*******"*.267
                                  e. State, Regional, and &@tiy**@jencies                 .............................................    267
                             9.   Research: Roles and Reaponsibilities               ..................................................    268
                                  a. Sanctuaries and Reserves Division               .................................................     268
                                  b. Sanctuary Manager or Research Coordinator                     ......................................  269
                                  c - Sanctuary Advisory Council (Research Working Group)                         ........................ 269
                             10. Education/Int=tatione Roles and ReapoMibilities                        ................................   269
                                  a. Sanc    'tuaries and Reserves Division          .................................................     269
                                  b. Sanctuary Manager or Education Coordinator                     ....................................   269
                                  C. Sanctuary Advisory Council (Education Working Group)                           ...................... 270
                             11 . Site AdnliWstration: Roles and Resposibilities                  .......................................  270
                                  a. Sanctuaries and Reserves Division               .................................................     270
                                  b. Sanctuary Manager           ....................................................................      270
                                  c. Sanctuary Advisory Council               ........................................................     271
                                  d. Federal, State, and County Agencies                 ..............................................    271

                        F. REVENUE AND RESOURCE ENHANCEMENT                                       ......................................   271

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                  A. INTRODUCTION

                      1. Sanctu= Purposes

                          The Hawaiian Islands Humpback Whale National Marine Sanctuary (Sanctuary) was
                  Congressionally designated by the Hawaiian Islands National Marine Sanctuary Act (HINMSA, or
                  Act) on November 4, 1992 (Subtitle C of Public Law 102-587, the Oceans Act of 1992). Section
                  2304 of the A6t establishes the Sanctuary's purposes as follows:

                          (1) to protect humpback whales and their habitat   'within the Sanctuary;
                          (2) to educate and interpret for the public the relationship of humpback whales to the
                              Hawaiian Islands marine environment;
                          (3) to manage human uses of the Sanctuary consistent with the HR*4MSA and Title III of
                              the Marine Protection, Research and Sanctuaries Act (MPRSA)', as amended; and
                          (4) to provide for the identification of marine resources and ecosystems of national
                              significance for possible inclusion in the Sanctuary.

                          These purposes are consistent with the overall goals and objectives of the National Marine
                  Sanctuary Program (NMSP), which are to: enhance resource protection through comprehensive
                  and coordinated conservation and management; support, promote, and coordinate scientific
                  research on, and monitoring of, site-specific marine resources; enhance public awareness,
                  understanding, appreciation and wise use of the marine environment; and facilitate to the extent
                  compatible with the primary objective of resource protection, public and private uses of national
                  marine sanctuaries.

                      2. Cg=hensive Managcment Plan

                          In addition to designation of the Sanctuary, Section 2306 of the HR*4MSA requires that
                  NOAA prepare, in consultation with interested persons and appropriate Federal, State and local
                  authorities, a 'comprehensive management plan and implementing Sanctuary regulations, in
                  accordance with the National Marine Sanctuaries Act (NMSA), to achieve the purposes and
                  objectives of the Sanctuary.

                          a. Purposes of the ManagernentPlan

                          Section 2306(a) of HINMSA, states that the management plan shall:
                          �   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 the protection of humpback whales
                              and their habitat;
                          �   set forth the allocation of Federal and State enforcement responsibilities, as jointly
                              agreed by the Secretary and the State of Hawaii;
                          �   identify research needs and establish a long-term ecological monitoring program with
                              respect to humpback whales and their habitat;
                          �   identify alternative sources of funding needed to fully implement the plan's provisions
                              and supplement appropriations [under section 2307 of this subtitle ] and section 313 of
                              the NMSA (16 U.S.C. � 1444);
                          � ensure coordination and cooperation between Sanctuary managers and other Federal,
                              State, and County authorities with jurisdiction within or adjacent to the Sanctuary; and

                  'Tide M of the MPRSA is also known as the National Marine Sanctuaries Act (NMSA).

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                            promote education among users of the Sanctuary and the general public about
                            conservation of the humpback whales, their habitat, and other marine resources.
                        Finally, section 2306 of the Act requires that NOAA provide for the public's participation
                during the development of the comprehensive management plan. To ftilfill this requirement,
                NOAA held six public scoping meetings and accepted written and oral comments on each of the
                main Hawaiian Islands and one in Washington, D.C. during March 15-30,1993; held seven public
                meetings and accepted written comments on each of the main Hawaiian Islands (two on the Big
                Island) during March 10-21, 1994; and participated.in four public Sanctuary Working Group
                (SWG) meetings comprised of members of Sanctuary user groups, Native Hawaiians, and other
                Federal, State, and county agencies.
                        The Draft EIS/M? was released to the public on September 15, 1995. During the 90-day
                public comment period, NOAA held over 25 statewide public information meetings to describe the
                Draft EIS/MP and answer questions. In addition, seven formal public hearings were also held to
                receive formal oral and written testimonies. By the end of the comment period, NOAA received
                over 250 written comments and oral comments on the DEISM. Apart from formal meetings,
                NOAA's on-site Sanctuary staff person, assisted by two contractors (one on Kauai and one in
                Honolulu), has conducted outreach efforts and spent considerable time meeting with various public
                interest groups and government agencies.

                        b. General Uses of the Management Plan

                        The specified requirements of the Sanctuary's management plan are       compatible with the
                overall sanctuary management concept embodied in the NMSA, and its implementing regulations
                (15 CFR Part 922), which require that a management plan be prepared for each national marine
                sanctuary. The HINMSA requires NOAA to comply with the NMSA in developing the
                management plan and implementing regulations. Section 2306(a) of the HINMSA requires the
                Sanctuary to follow the procedures specified in sections 303 and 304 of the NMSA, 16 U.S.C.
                ��1433 and 1434.

                        The management plan proposes actions tailored to specific issues affecting the Sanctuary.
                The plan recognizes the need for facilitating human uses of the Sanctuary compatible with the
                primary purpose of protecting humpback whales and their habitat. Successful implementation of
                the management plan will requirei continuing cooperation and coordination among many Federal,
                State and county agencies and representatives, -as well as private organizations and individuals.
                Information exchange, sharing of facilities and staff, and coordination of policies and procedures
                for resource protection will be features of all Sanctuary programs, including research, monitoring,
                enforcement and education. This management plan is designed to provide guidance for
                management of the Sanctuary for at least the first five years of its operation. During this period,
                management initiatives will generally fall into five fundamental program areas: resource protection,
                research and long-term monitoring, education and outreach, administration, and enforcement. The
                following sections of this management plan describe the goals, guidelines, and initiatives for,each
                of these programs. In general, the management plan:

                        0   focuses on Sanctuary goals and objectives, management responsibilities, and guidelines
                            for the resource protection, research, education, and administration programs of the
                            Sanctuary; and
                        *   establishes an administrative framework which addresses the need for cooperative and
                            coordinating programs and activities with other Federal and State agencies, as well as
                            private organizations and interested citizens to ensure effective management of the
                            Sanctuary.

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                        The Sanctuaties and Reserves Division (SRD), within NOAA is responsible for overall
                management of the Sanctuary. SRD has been working in partnership with the State of Hawaii to'
                develop the Sanctuary management plan and will look to develop partnerships with other Federal,
                State and county resource management agencies, and other organizations, as' appropriate, during
                implernentation. As required by Section 304(e) of the NMSA [16 U.S.C. �1434(e)], the
                Secretary, at a minimum of every five years, shall evaluate the substantive progress towards
                implementing the management plan and goals for the Sanctuary, and shall revise the management
                plan and regulations, as necessary, to fulfill the purposes and policies of the Sanctuary. Although
                variable funding for staff and program. development may affect specific aspects of Sanctuary
                management described in this plan, the goals and objectives of the plan will remain unchanged
                unless, if after the ongoing and five-year review, SRD makes specific changes.

                    3. Sanctu= Goals and Qbjectives
                        Management strategies planned for the Sanctuary are directed towards meeting specific
                goals and objectives contained within this management plan. Short and long term implementation
                objectives are listed below. Although goals and objectives are discretely identified, in many
                instances, the goals meet overlapping purposes. For instance, in addition to addressing specific
                objectives, both research and educational activities also contribute to resource protection and to the
                enhancement of compatible public uses of the Sanctuary.
                        The highest management priority for the Sanctuary is the long-term protection of the North
                Pacific population of humpback whales and their wintering habitat. Effective protection and
                management of these resources is dependent on the Sanctuary's size, location, accessibility,
                staffing, budget@ and the coordination of management responsibilities between the State of Hawaii,
                Federal agencies, and the various marine users. The Sanctuary receives moderate-to-high'Ievels of
                human use, with particularly high levels of visitation year-around. . The proximity to shore and
                accessibility of the site indicate the need for a Sanctuary' management structure which provides for
                coordination of resource protection, research, education, and administrative activities.

                        Understanding the ecological relationships between humpback whales and the habitats
                upon which they depend is of primary importance for providing comprehensive and coordinated
                protection of this endangered species. The Sanctuary management plan proposes research and
                monitoring programs which will characterize and monitor environmental conditions 'over the short-
                and long-term. This continuing program will provide the basis for detecting significant changes in
                the status of humpback whale populations and their wintering habitat. These data bases and
                predictive studies will, in turn, provide the basis for improved decision making, the formulation of
                action plans, and response mechanisms to unforeseen threats to the Sanctuary's environment.

                        Interested individuals, organizations, and government agencies will play an important role
                in achieving resource protection goals in the Sanctuary. Inherent to this management plan, and
                critical to its success, are effective education and interpretive programs to enhance public
                understanding and support for management objectives. The HIHWNMS will provide a unique
                opportunity to inforni the public about both the value of protecting its valuable resources and the
                need for long-term management of the overall Sanctuary. Communicating these messages
                effectively to the public will depend on publications, exhibits, and special outreach events tailored
                to a variety of public audiences. Mutual objectives shared between NOAA and the State of Hawaii
                demonstrate clearly the challenges and opportunities outlined in this Sanctuary management plan.
                            Following is a preliminary listing of short- and long-term objectives for the Sanctuary,
                            involving activities in the resource protection, 'research and long-term monitoring,
                            education and outreach, administration and enforcement. Additional items and projects
                            will be added as both the need and means are identified.

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                             a: Short-Term Objectives

                    Facilitate Coordination and Coolmration

                             An important first Sanctuary. task will be to strengthen working relationships with
                    appropriate Federal, State and county agencies to ensure the Sanctuary mandate can be achieved
                    through a cooperative management strategy. Of particular importance to the success of this
                    management plan is the continuing involvement and coordination of various Federal and State
                    authorities involved in activities which either directly or incidentally afford protection for
                    humpback whales and their habitat. Since the Sanctuary is relying on these existing authorities and
                    their permitting processes, it is crucial to develop working partnership so that mutual concerns and
                    mandates are constructively addressed.

                             Efforts to establish and strengthen working relationships have already been initiated
                    through meetings, communications, and participation on Sanctuary advisory groups/working
                    groups among NOAA on-site Sanctuary Staff and representatives of Federal, State, and county
                    agencies. Sanctuary staff will continue these activities through meetings with, and directed
                    outreach to, other agencies and institutions operating in the Sanctuary area, to solicit their input in
                    the on-going development of the site, to familiarize them with the Sanctuary's mandate and staff,
                    and to determine appropriate working relationships and mutual agendas. These meetings will
                    include, among others, the Departinents of Health; Land and Natural Resources; Transportation;
                    Business, Economic Development and Tourism; State Planning; Education; Public Safety;
                    Kahoolawe Island Reserve Commission (KIRC), Office of Hawaiian Affairs (OHA), and the
                    University of Hawaii. Additionally, outreach and discussions will continue with representatives of
                    county governments and agencies, as well as Native Hawaiian groups, local businesses, tourism
                    and recreation industry, agricultural, recreational, and fishing representatives, to ensure that local
                    concerns related to the Sanctuary's management are addressed., Finally, NOAA will continue to
                    develop working relationships and agreements with representatives of Federal agencies with
                    jurisdictional responsibilities in the area of the Sanctuary, including: the National Marine Fisheries
                    Service (NMFS) (wid3in NOAA), Department of Transportation (DOT), U.S. Coast Guard
                    (USCG); U.S. Environmental Protection Agency (EPA); U.S. Department of Defense (DOD)
                    [U.S. Air Force,- U.S. Navy, U.S. Marine Corps, U.S. Army, U.S. Army Corps of Engineers
                    (COE)].

                             The Sanctuary staff. will work with other'agencies to facilitate coordination of resource
                    management programs, and to encourage the exchange of information related to these programs.
                    The Sanctuary will also support management-related research and mom-itoring activities through
                    funding, staffing, and by other appropriate means as available. Among the most important items on
                    the Sanctuary's research agenda is a comprehensive characterization of the North Pacific humpback
                    whale's status, vital rates and winter habitat. These data will contribute significantly to refining the
                    Sanctuary's management.

                             The commercial, recreational, Native Hawaiian and other interested publics can play
                    important roles in attaining resource protection and management goals in the Sanctuary. Educational
                    and interpretive programs will be aimed at improving public understanding of, and hence support
                    for, the Sanctuary's management objectives. Important to the success of these activities is
                    coordination with, and support of, existing interpretive and education programs. Communication
                    tools to aid in this overall objective will include publications, exhibits, school curriculum, and
                    special events that convey the national significance of the Sanctuary's resources, in particular, the
                    humpback whale, to both the in-state and the out-of-state publics. The Sanctuary's management
                    plan, in part through its educational program, will highlight the linkages between the health of the
                    Sanctuary's resources and qualities, and the future vitality of public uses,. such as Native Hawaiian
                    uses, fishing and whale related activities.

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                 Facilitate Sanctuga Advisory Council Activities

                         The Hawaii Sanctuary Advisory Council (SAC) has met five times since it was established
                 by NOAA in March, 1996. The SAC consists of appointed representatives of Federal and State
                 government agencies, representatives from individual counties, Native Hawaiians, fishermen,
                 research and education organizations, and commercial and environmental interests. The purpose of
                 the SAC is to provide advice and recommendations to the Sanctuary Manager and NOAA on the
                 continued development and management of the Sanctuary. The SAC has helped NOAA respond to
                 public comments received on the Draft EIS/MP and has formed education and research working
                 groups to help the Sanctuary identify Sanctuary priorities and opportunities to work with the local
                 community. * The SAC will play a key role in advising on management priorities, and in
                 coordinating Sanctuary activities with those of other State and Federal agencies. NOAA will work
                 closely with the SAC and support its efforts to facilitate coordination with affected user groups and
                 government agencies. NOAA will assist the SAC in forming working groups and helping to ensure
                 broader public input into the management of the Sanctuary.

                 JJpgrade Sanctu= Offices and Hire/Cona-act Additional St

                         NOAA will continue to upgrade its Sanctuary office in Kihei, Maui, housing administrative
                 offices and staff. The site and facilities ar@ owned - by NOAA and will likely remain the
                 administrative headquarters of the Sanctuary. NOAA will also evaluate the financial resources of
                 the Program and determine where, if any, additional Sanctuary offices or staff need to be
                 established. Over the longer term, a Sanctuary Visitor Center may also be established either on-
                 site, or in conjunction with another facility or organization.

                         b. Long-Term Objectives

                 lm=ved Data Base on HmnMback Whales and Status of Their Habitat

                         To meet the primary objective of long-term protection of the central North Pacific
                 population of humpback whales and their habitat, NOAA anticipates implementation of targeted
                 research and monitoring program to address the status of these resources over the long-term.
                 In addition to Sanctuary-supported research and monitoring, it is anticipated that NOAA will
                 also enter into cooperative projects with other Federal, State and/or private agencies,
                 organizations or individuals to achieve the overall primary goal of long-term resource
                 protection.

                 Establish a-Sanctu= Visitor Center. Intl=tive Signage-and Education Materials
                         Following the identification of appropriate locations and funding, NOAA may establish
                 or work with existing organizations to create a Sanctuary Visitor Center, housing interpretive
                 displays and printed materials about the Sanctuary and its resources, other marine resources
                 and Native Hawaiian culture. Interpretive signs would be installed at boat ramps and various
                 access/observation points to inform ocean users of the Sanctuary's resources and applicable
                 regulations. The Visitor Center would also provide a facility for Sanctuary programs
                 developed for interest groups and the general public.
                 Identify&stablish AlWmative Sources of Funding to J=1ement and- Enhance the Sanctu='s
                 Proerams

                         Section 2306 of the HINMSA requires NOAA to "identify alternative sources of funding
                 needed to ftilly implement the plan's provisions". The NMSA has several mechanisms for the
                 Sanctuary to fulfill this requirement, including seeking cooperative agreements, donations and
                 acquisitions, and working. with nonprofit organizations to solicit donations. The Sanctuary will

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                                                                                                       National Marine Sanctuary

                     work with the community to explore the feasibility of enhancing revenues through voluntary
                     measures.

                     Identify A"tional Marine Resources and Ecosystems for Pgssible Inc usion in the Sanctuga

                             After the implementation of the final management plan, NOAA anticipates initiating the
                     public process of identifying additional marine resources and ecosystems for possible inclusion in
                     the Sanctuary through a focused initiative as described in Part C(4) of this Management Plan. This
                     process would allow substantial public, State, and county agency input to help the Sanctuary
                     assess whether other resources should be included in the Sanctuary.

                     ELv&-Year Review of Mgnag&ment Plan

                             Not more than five years after the final management plan and regulations become effective,
                     NOAA, in consultation with the Governor, and with the assistance of the SAC, will evaluate the
                     progress made toward implementing the Sanctuary management plan, regulations, and goals. The
                     results of this evaluation will be used by NOAA, in consultation with the Governor, to determine
                     whether changes to the management plan and/or regulations are necessary, and to revise the
                     management plan and/or regulations accordingly. Changes in the terms of the designation
                     document require preparation of an environmental impact statement and Governor approval.

                     B. SANCTUARY BOUNDARY

                             The boundary of the Hawaiian Islands Humpback Vylale National Marine Sanctuary
                     consists of the submerged lands and waters off the coast of the Hawaiian Islands seaward from the
                     shoreline, cutting across the mouths of all rivers and stream -

                             (1) to the 100-fathorn (183 meter) isobath adjoining the.islands of Maui, Molokai, and
                                 Lanai@ including Penguin Bank, but excluding the area within three nautical miles of the
                                 upper reaches of the wash of the waves on the shore of Kahoolawe Island;
                             (2) to the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Nakalele
                                 Point, Maui, and southward;
                             (3) to the 100-fathom isobath around the Island of Hawaii;
                             (4) to the 100-fathom isobath from Kailiu Point eastward to Makahuena Point, Kauai; and
                             (5) to the 100-fathom isobath from Puaena'Point eastward to Mahie Point and from the Ala
                                 Wai Canal eastward to Makapuu Point, Oahu.

                     Excluded from the Sanctuary boundary are the following commercial ports and small boat harbors:

                     Maui                                                                      Lang
                     Kahului Harbor                   Ala Wai Small Boat Basin                 Kaumalapau Harbor
                     Lahaina Boat Harbor                                                       Manele Harbor
                     Maalaea Boat Harbor              Hawaii (Big-bland)
                                                      Hilo Bay Harbor
                     Kauai                            Honokohau Boat Harbor                    Hale o Lono Harbor
                     Hanamaulu. Bay                   Keauhou Bay                              Kaunakakai Harbor
                     Nawiliwili Harbor                Kawaihae Boat Harbor and
                                                         Small Boat Basin

                             The waters around the island of Kahoolawe are not included in the Sanctuary at this time.
                     NOAA has and wiH continue to work closely with the Kahoolawe Islands Reserve Commission,
                     the State of Hawaii, and the Navy to assess whether Kahoolawe should be included in the
                     Sanctuary at a later date.

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                         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 Ration), the Sanctuary will work
                 with the appropriate entities to redefine its role if necessary.

                 C. SANCTUARY RESOURCES.

                     1. Hu=back Whale

                         The HINMSA designated the Sanctuary for the primary purpose of protecting endangered
                 humpback whales (Megaptera novaeangliae) and their habitat within the Hawaiian Islands marine
                 environment. The Sanctuary will focus its management efforts to protect humpback whales in their
                 Hawaiian habitat by supporting resource protection, research, long-term monitoring, education and
                 interpretation programs and by supporting efforts to improve coordination among the management
                 agencies, researchers, educators and various user groups.

                     2.         ack Whale Habitat

                         The marine waters surrounding the Hawaiian Islands comprise only a portion of the overall
                 habitat of the humpback whale (i.e., Alaskan feeding grounds, migration routes, etc.). But these
                 waters are essential because they provide breeding, calving, nursing and resting areas for the
                 majority of the endangered North Pacific humpback whale population. Thus, Hawaii is one of the
                 most important humpback whale breeding grounds in the world. Most humpbacks can be found in
                 the warm, protected nearshore waters less than 100 fathoms (600 feet) deep (NMFS 1991, Nitta
                 and Naughton 1989). Cows with calves tend to be distributed in more nearshore waters on the
                 leeward sides of islands, often within the 10-30 fathom isobath (60-180 feet) depth (NMFS 199 1).
                 SRD, in consultation with NUFS, has defined humpback whale habitat, for purposes of Sanctuary
                 management, as:

                         "those areas in the waters around Hawaii dw provide space for individual and
                         population growth and normal behavior of humpback whales, and include sites
                         usedfor reproductive activities, including breeding, calving and nursing."

                     3.  Other Resources of National Signifwance

                         The HR*4MSA established the Sanctuary to focus attention on humpback whales and their
                 habitat as its primary resources. Initial efforts of the Sanctuary will be directed at comprehensive
                 and coordinated protection of humpback whales and their habitat. Section 2304(b)(4) of the Act
                 also requires NOAA to provide for "the identification of marine resources and ecosystems of
                 national significance for possible inclusion in the sanctuary." (Emphasis added). Further, Section
                 2306(a)(6) of the Act states that the Sanctuary Management Plan will "promote education among
                 users of the Sanctuary and the general public about conservation of humpback whales, their
                 habitat, and other marine resources." (Emphasis added).
                         Within five years after the Final Management Plan has been approv    ed, a  process will be
                 put in place that will allow widespread public participation in the identification  of other marine
                 resources or ecosystems of national significance. These identified resources may or may not be
                 included in the Sanctuary management regime depending on their national significance, need to
                 supplement existing management authorities to provide and ensure coordinated and comprehensive
                 conservation and management (i.e., through the collaborative management process envisioned by
                 the Sanctuary), and degree of public and State support.

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                                                                                                        National Marine Sanctuary

                              The process to identify other resources and ecosystems will be conducted over a number of
                      years (time frame undetermined) after the final management plan is approved. The initial priority
                      will be to review other resources already identified in public scoping meetings held in March 1993,
                      ,public meetings held in March 1994, public hearings and comments on the Draft EIS/MP, and
                      recommendations from the SAC. Additional resources may be identified through nominations,
                      review and evaluation, and further impact analysis. The assessment of other resources for possible
                      inclusion into the Sanctuary will be conducted by the Sanctuary Manager in consultation with the
                      SAC and with full public participation.

                              a. Process to Include Other Resources

                              SRD developed the following process to allow widespread public participation in the
                      identification of other marine resources for possible inclusion in the Sanctuary. First, the public
                      will be notified of the nomination process. Second, the resources/ecosystems would be identified.
                      Third, the identified resources/ecosystems would be evaluated for national significance and
                      potential management gaps. Fourth, results of evaluations would be given to the Sanctuary
                      Manager for consideration. And fifth, if resources are determined to be candidates for inclusion,
                      public notice and opportunity for comment will be given before any change relating to other
                      resources or management thereof is incorporated.
                      Step 1. Notirication: Three months prior to the start period, the Sanctuary will publish a
                      Federal Register Notice, print notices in local newspapers, and use other means to inform the
                      'public of the nomination process and to call for nominations (along with criteria and format) for the
                      identification of other marine resources and ecosystems for possible inclusion in the Sanctuary.
                      The Notice will summarize public comments and other pertinent information received up to that
                      point, and provide a standard format for the public to submit recommendations for nominating
                      other resources for possible inclusion into the Sanctuary.

                      Step 2. Nomination: The period of consideration will be for a specified time period (i.e., 3
                      to 6 months), at which time the nomination period will close.

                      Step 3. Evaluation:           During this period, a technical working group of the SAC (see
                      "Administration" section) will review the nominations based on standards identified in the
                      Sanctuary Management Plan, research the status of these resources, and review all regulations and
                      management regimes that apply to these resources. The SAC will provide the Sanctuary Manager
                      its recommendations on the nominations.

                      Step 4. Recommendation to Sanctuary Manager:                          All proposals, along with their
                      justification, will be integrated and developed for further review, analysis, and evaluation by the
                      Sanctuary Manager (in consultation with NOAA) and the SAC in accordance with an agreed upon
                      review process (= sample process listed below). A consolidated proposal will then be distributed
                      for public review, discussion, and identification of concerns and support.

                              Resource ReviewXvaluation: Proces&:

                              Andrnbif6f. olbg'tcal;i., historic-44n& cultural- resources: have. bee'addentified as
                                               S.
                              possibl6Hawaii ancuiary, -resources, m4Mtkm to@ humpback whales and their
                              habitaL. In: examinfin th     resources. imid.theiiuses, the. program will apply the
                              sanctuary- &si         standards: described, iff"NMSA. �. 303(a), consistent with the
                              HINMSA. The:following approach will'beused.by the@Sanctuary Manager and the
                              SAC to: assess, whether. other resources should, qualify as sanctuary resources and thus
                              be included. in the Sanc tuary ma agement regime.

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                           I       Is the resource of special national significance? See Appendix B [NMSA
                                   �303(a)(2)(A) and �303(b)(1)]. If not, go to step. three.

                           2a.     Are there management gaps which the sanct      uary program can fill?

                                   Management gaps for the purposes of this review will include any regulatory,
                                   administrative, or management deficiency. The review will specify whether
                                   the gaps result from shortfalls'in regulatory authority or jurisdiction or from
                                   agency implementation constraints.. Constraints may include, but are not
                                   limited to, limitations in non-regulatory management efforts such as
                                   education, research, monitoring, enforcement, and staffing. See Appendix B
                                   [NMSA �303(a)(2)(B),(D)]. If not, go to step 3.

                           2b.     What are the management gaps and how can they be filled (research,
                                   monitoring, education, enforcement, regulation, staffing, etc.)? See Appendix
                                   B [NMSA � 303(a)(2)(B),(D)]

                           2c.     Will the designation of the resource as a Sanctuary resource facilitate the
                                   objectives of the NMSA and the policies and purposes of the HINMSA? See
                                   Appendixes B and C (NMSA �303(a)(1); HR*4MSA �2304(b)(3)].

                           3a.     Should there be further study of the resource and its management because the
                                   resource may be of special national significance and suitable for Sanctuary
                                   management? - If not, no further action.

                           3b.     What other study is necessary to determine the significance of the resource
                                   and the need for additional management measures? Compile a list of research
                                   needs based. upon this review.

                   Step 5. Public Review: Further public and agency review win be held prior to any action
                   being taken, to include additional resources, along with the proper resource protection and
                   management regime, research, and education needs, etc. If necessary, a supplement to the Final
                   EIS/MP will be prepared and distributed prior to that review. NOAA will work with the State of
                   Hawaii and Federal agencies to assure that such additions are coordinated with the goals of these
                   other agencies.

                   D. RESOURCE PROTECTION PROGRAM

                       I - Program Description

                           The designation of the HIHWNMS focuses attention on the )value of and need for
                   protection of the central North Pacific population of humpback whales and their wintering habitat.
                   The resource protection program complements existing non-regulatory and regulatory mechanisms
                   to protect humpback whales and their habitat. To ensure that these resources and qualities are
                   protected, the Sanctuary resource protection program includes: (1) goals and objectives; (2)
                   education and outreach; (3) coordination of permit review and consultations; (4) Sanctuary
                   regulations; (5) enforcement and surveillance; and (6) research and long-term monit6ring. The.
                   Sanctuary recognizes that the people of Hawaii extensively depend upon the marine environment
                   for commerce, recreation and culture, and will work to -facilitate public and private uses of the
                   Sanctuary (including Native Hawaiian uses) consistent with the primary objective of resource
                   protection.

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                          2.   Goals and Objectives

                               The highest management priority for the HIHWNMS is the long-term protection of
                      humpback whales, and their habitat within the Sanctuary's boundary. Approximately 65 percent
                      of the Congressionally-designated Sanctuary lies w          'ithin the waters of the State of Hawaii, and
                      therefore many of the activities affecting the Sanctuary's resources and qualities are presently
                      gIoverned by existing Federal and      *State authorities. The Sanctuary will work closely with these
                      existing agencies to ensure coorduiiated and more efficient management of humpback whales and
                      their habitat.

                               Two specific plans relate directly to the protection of the humpback whale and its habitat.
                      NMFS developed a Final Recovery Plan for the Humpback Whale in 1991 (NMFS Recovery Plan)
                      which summarizes current information on humpback whales, identifies problems"that may interfere
                      with their recovery, and recommends research or management actions to restore and maintain this
                      endangered species. The major objectives of the plan are to:

                                   0 Maintain and enhance habitat;
                                   0 identify and reduce human-related mortality, injury and disturbance;
                                   -   measure and monitor key, population parameters to determine if recommended
                                       actions are-successful; and
                                       improve administration and coordination of the overall recovery effort for this
                                       species.

                               In mid-1990 the State of Hawaii organized a planning, team to identify critical issues,
                      prepare technical papers and suggest policies and implementing actions to improve coastal and
                      ocean resource management in the State (Hawaii Ocean and Management Resources Council,
                      1.991). Extensive public input during the creation of the Hawaii Ocean Resources Management
                      Plan (ORMP) revealed several critical concerns -about the existing sector-specific- management of'
                      Hawaii's ocean and coasts by Federal," State and County agencies, including:

                                   0   The current system of managing ocean and coastal resources               is diffused among
                                       State and County planning, management and regulatory activities, poorly
                                       coordinated and inadequate.
                                   0   Existing mechanisms and procedures for resolving ocean and coastal user and
                                       regulatory conflicts are inadequate.
                                   -   Existing enforcement systems for ocean use laws and regulations are inadequate.
                                   0   Public participation in and awareness of ocean and coastal resources, as well as
                                       their management, are lacking.
                                   0   Current ocean and coastal management programs are reactive and issue-driven
                                       rather than anticipatory.

                               The Hawaii OFJVT identified priority recommendations to address the above concerns.
                      These include:

                                   0   Implement a regional planning approach;
                                   0   Improve the information base;
                                   0   Establish carrying capacities;
                                   0   Develop conflict resolution procedures;
                                   0   Enforce ocean use laws and regulations;
                                       Improve public participation; and
                                       Anticipate critical issues.

                      The Hawaii ORMP also contains seictor-specific recommendations that detail major objectives and
                      policies for implementation by various State agencies.,

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                          The goals and objectives of the Hawaii Sanctuary's Resource Protection Program were
                   developed to complement and coordinate existing management and regulatory efforts, fill gaps,
                   enhance public participation and awareness, and to address some of the identified problems;
                   objectives and policies contained within t   'h@ Hawaii ORMP, the NMFS Recovery Plan, and other
                   programs, such as point and non-point source pollution control. initiatives, as they relate to the
                   protection of the humpback whale's Hawaiian habitat. The Hawaii Sanctuary seeks to complement
                   existing management regimes without adding or increasing the current regulatory                           and
                   administrative requirements.

                   Sanctuary Goals: The NMSA, HINMSA, and the NMFS Recovery Plan establish the.
                   following resource protection goals, including to:

                                   protect and maintain humpback whales and their habitat;
                                   provide authority for comprehensive and coordinated conservation and management
                                   of the Sanctuary, and activities affecting Sanctuary resources in a manner which
                                   complements existing regulatory authorities;
                                   identify and reduce human related mortality, injury, and disturbance, and manage
                                   such human uses of the Sanctuary consistent with the HE14MSA and the NMSA;
                                   set forth the allocation of Federal and State enforcement responsibilities, as jointly
                                   agreed by the Secretary and the State of Hawaii;
                                   ensure coordination, cooperation and improved administration between Sanctuary
                                   managers and other Federal, State and county authorities with jurisdiction within or
                                   ,adjacent to the Sanctuary;
                                   support, promote and coordinate long-term monitoring and scientific research on
                                   Sanctuary resources;
                                   enhance public awareness, understanding, appreciation, and wise use of the
                                   Sanctuary; and
                                   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 the protection of
                                   humpback whales and their habitat.

                   Sanctuary Objectives: To fulfill the mandate of providing for the long-term protection of the
                   central North Pacific population of humpback whales and their habitat, the Hawaii Sanctuary will
                   rely upon the following objectives and strategies

                   Qb-jective 1:   Coordinate and complement policies and procedures among the various government
                       agencies sharing regulatory responsibility for protection and management of humpback whales
                       and their habitat (see part 4, below);

                       Strategy 1. 1: Develop formal and informal coordination mechanisms with appropriate Federal
                           and State resource management authorities to implement resource protection. strategies and
                           to ensure that the protection of the humpback whale and its habitat are considered within the
                           existing resource management framework.

                       Strategy 1.2: Incorporate existing Federal and State regulations that protect humpback whales.
                           and their habitat into the Sanctuary regulatory regime (see part 3 below and Appendix K.).
                   Qbjective 2: , Complement coordination among appropriate, Federal, State and county auihoritie's
                       to enhance enforcement of existing laws and regulations that fulfill Sanctuary goals'(see part 5
                       below);

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                                                                                                   National Marine Sanctuary

                        StrateU 2. 1: The Sanctuary Manager will work closely with NUFS-Office of Enforcement
                             (NMFS-OE) to coordinate the enforcement activities of existing Federal and State
                             authorities in the Sanctuary.
                     Objective 3:   Encourage parti  'cipation by interested agencies and the public. in the development of
                        procedures to address specific resource protection and management concerns (e.g., research,
                        monitoring, enforcement, education, andemergency-response programs) (also see Research,
                        Education Sections of the Management Plan);
                        Strategy 3. 1: Facilitate efforts by the SAC to advise the Sanctuary manager and NOAA on
                             Sanctuary policies and program priorities. Encourage the SAC to form working groups to
                             address research, education and other resource protection issues.
                        Strategy 3.2: Convene workshops and meetings between Sanctuary staff, the SAC, other
                             Federal, State and county agencies and the public to assist in identifying, developing and
                             implementing action plans and assigning responsibilities for education, research and
                             monitoring, enforcement. and other resource protection strategies.
                     Objective 4:   Promote public awareness of, and. voluntary compliance with, Sanctuary
                        regulations and objectives and other authorities, through education and interpretive programs
                        stressing resource sensitivity and wise use (see Education and Interpretation Section of
                        Management Plan);

                     Miective 5:    Utilize the research and monitoring results from existing -management agencies and
                        researchers to develop effective resource protection strategies and to improve management
                        decision making (See Research & Long-Term Monitoring Section of Management Plan).

                        3. Sanctu= Regulations

                             Hawaii's humpback whales may be.directly affected by vessel approaches or collisions,
                     and noise. from boats, aircraft, nearshore or in-water construction or other acoustic generating
                     activities. . Indirect impacts may result from the degradation of whale habitat. Sources of habitat
                     degradation include point and non-point source pollution and the physical alteration or di�turbance
                     of the seafloor (which can re-suspend contaminated sediments, alter the depth, modify submerged
                     characteristics which provide protection from open seas, change the acoustic properties of a site,
                     and displace whales from preferred nearshore areas). For management purposes, the Hawaii
                     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 -- the two. major components of the whale's habitat.
                             Because@ there are many existing Federal and State laws and regulations, and conservation
                     efforts by the public, that directly and/or indirectly protect humpback whales and their habitat, the
                     Hawaii Sanctuary will supplement these authorities to the maximum extent practicable by filling'
                     gaps and providing a safety net of regulatory protection. The following sections detail how the
                     Hawaii Sanctuary will work within existing regulatory regimes.

                             a. Humpback Whale Protection

                             SRD is proposing Sanctuary regulations that supplement existing regulatory regimes to
                     protect humpback whales. The proposed Sanctuary regulations essentially incorporate thi NMFS
                     humpback whale approach regulations for Hawaii and regulations that prohibit taking or
                     possessing a humpback whale or parts thereof Thus, violations of the terms or conditions of
                     these NMFS whale approach regulations would also constitute a violation of the Sanctuary
                     regulations. The Sanctuary prohibitions would not apply if the activity is authorized under the

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                 Marine Mammal Protection Act (MMPA) or the Endangered Species Act (ESA). Specifically, the
                 Sanctuary regulations include the following prohibitions:

                                 Approachin                a vessel or other object to approach, within the Sanctuary,
                                           @ 9, or causing
                                 by any means, within 100 yards of any humpback whale except as authorized under
                                 the MMPA, as amended, 16. U.S.C. 1361                 and the ESA, as amended, 16
                                 U.S.C. 1531 et

                                 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;

                                 Taking any humpback whale in the Sanctuary except as authorized under the
                                 MMPA and the ESA;

                                 Possessing within the Sanctuary (regardless of where taken) any living or dead
                                 humpback whale or part thereof taken in violation of the MMPA or the ESA;

                         The State of Hawaii. also regulates the operation of commercial and recreational thrillcraft,
                 water sledding, parasailing vessels, and high-speed motorcraft. Commercial thrillcraft activities,
                 are limited to Ocean Recreation Management Areas (ORMAs) and commercial operators must
                 obtain commercial operating area use permits from the Department of Land and Natural Resource
                 (DLNR)-Division of Boating and Ocean Recreation to conduct these activities.               Recreational
                 thrillcraft operators can operate outside of certain non-designated ORMAs (seaward 500 feet from
                 the shoreline to the outer fringing reef, whichever is greater, and two miles off Kauai, Oahu, Maui
                 and Hawaii). However, commercial and recreational thrillcraft operations are prohibited in most
                 designated ORMA areas, with some exceptionsi including the Humpback Whale Protected Waters
                 Area on the west and south coast of Maui, between December 15 and May 15 for -the protection of
                 the humpback whales (HAR, Title 13, Chapter 256-112). These regulations are an important step
                 by the State of Hawaii to protect the humpback whale while in Hawaiian waters. The Sanctuary
                 will work with the State, counties and various interests, to assess the long-term effectiveness of
                 these regulations in protecting the whale from certain vessel traffic threats.

                         b. Humpback Whale Habitat Protection

                         Degradation of water quality and the physical alteration of the submerged lands within the
                 Sanctuary are concerns regarding the humpback whales' habitat. Scientific evidence generally
                 relates degradation of water quality or alteration of the physical habitat as having potentially
                 adverse impacts on humpback whales,. although specific cause-effect relationships have been
                 difficult to establish.   The Sanctuary will begin to target research efforts to more clearly
                 characterize the types of activities and degree to which they may impact individual whales and
                 populations in the short- and long-term.         In addition, the Sanctuary will work closely to
                 supplement- and complement existing Federal and State regulations that address water quality and
                 alteration of the seabed activities that are related to humpback whales and their habitat. To
                 supplement enforcement and enhance complia        'nce with such existing regulations, the Sanctuary
                 regulations include the following prohibitions:

                         Discharging or depositing any material or other matter in the Sanctuary; altering the seabed
                         of the Sanctuary; or discharging or depositing, from beyond the boundary of the
                         Sanctuary, any material or other matter that subsequently enters the Sanctuary and injure's a
                         humpback whale or humpback whale habitat, provided that:

                         such activity requires a Federal or State permit, license, lease or other authorization, and is
                         conducted:

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                                                                                                      National Marine Sanctuary

                              (i) without such'permit, license, lease or other authorization; or
                              (ii), not in'compliance with the terms and conditions of such permit, license, lease, or other
                                  authorization.

                              This proposed Sanctuary regulation      is based on an analysis -of existing regulations and
                      extensive consultations with other government agencies and the public. NOAA concluded that, at
                      this time, there are adequate regulations on the books that generally protect water quality and the
                      physical submerged lands in the Sanctuary. However, NOAA also found that the Sanctuary could
                      help supplement the enforcement of, and improve compliance with, these regulations which will
                      not only increase protection for humpback whales and their habitat, but also improve the marine
                      environment generally. This Sanctuary regulation recognizes and relies on the authorities and
                      permit processes that govern water quality and seabed integrity while bringing the Sanctuary's
                      perspective and expertise to tile process.
                              The proposed habitat regulation     provides enhanced resource     protection for. the whales'
                      habitat since violations of 'valid Federal or State permits, leases, licenses, or specific authorizations
                      also constitute a violation of Sanctuary regulations. Any authorized discharge or alteration -of the
                      seabed activities will not be a violation of Sanctuary regulations. . The proposed regulatory regime
                      to protect humpback whale habitat provides a backdrop or safety net to existing authorities to
                      ensure compliance with valid permits, leases, and authorizations, and supplements the enforcement
                      of permit violations and unlawful discharges or alteration of the seabed activities.

                              C. Future Regulations

                              NOAA cannot make the guarantee that future Sanctuary regulations will never be
                      necessary. It is possible that in the. future resource managers may identify a specific type of
                      activity that could negatively impact Sanctuary resources or create conflicts among other Sanctuary
                      users. Further, if in the future other marine resources and ecosystems' are included in the
                      Sanctuary, additional regulations may be necessary to manage and protect such resources.. While
                      non-regulatory options would generally be pursued first, regulation is one type of management tool
                      that NOAA may choose to consider in order to protect Sanctuary resources. Prior to issuing a new
                      regulation, NOAA must first identify and support that there is a need for the new regulation (e.g.,
                      that a Sanctuary resource is -being, or could be negatively affected by some activity or that an
                      activity is creating a conflict among Sanctuary users). NOAA would work with other Federal and
                      State resource management agencies, the research community, and affected user groups'to collect
                      all relevant and available information and scientific data that will be used to more clearly define the
                      problem and identify potential solutions. - NOAA would also seek advice and recommendations
                      from the SAC and other resource management agencies prior to initiating any rulemaking.

                              If after coordinating with existing agencies and the SAC NOAA determines to propose a
                      new regulation, NOAA is required to, at a minimum, follow the procedures of the Administrative
                      Procedure Act, requiring that adequate public notice and opportunity for public comment be given
                      for any new regulation. Further, if NOAA proposed a regulation outside the scope of regulations
                      listed in the Sanctuary Designation Document, NOAA would be required to go through the
                      designation process, including public review and comment, at least one public hearing, preparation
                      of a Supplemental EIS, and gubernatorial review and non-objection. If the Governor objects, the
                      regulation would not take effect in State waters. If NOAA proposed to change an existing
                      regulation, NOAA would provide for public review and comment and, although not required to do
                      so, gubernatorial review and non-objection.

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                     4. Enforcement and Surveillance

                         An essential feature of the resource protection program is an effective enforcement program
                 which includes education. NOAA's primary enforcement objective in the Sanctuary is to achieve
                 resource protection by gaining, voluntary compliance with the Sanctuary regulations and other
                 authorities that apply within the Hawaii Sanctuary. The -Sanctuary anticipates a State-Federal
                 cooperative enforcement system involving the State of Hawaii DLNR and Department of                 *Health
                 (DOH), USCG, and NMFS. The Sanctuary is also proposing to add a Sanctuary regulation to
                 ensure that enforcement investigations proceed with minimal obstruction.                  The Sanctuary
                 regulation's prohibit:

                                 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.

                         a. Enforcement Philosophy

                         The law enforcement program is an essential component of resource protection within the
                 Sanctuary. A goal of Sanctuary enforcement is to primarily prevent adverse resource impacts. The
                 Sanctuary's enforcement'program will focus on "interpretive enforcement", emphasizing outreach
                 and education activities for Sanctuary users in order to prevent the occurrence of violations. This
                 style of enforcement seeks voluntary compliance primarily 'through the education of users.
                 Interpretive law enforcement emphasizes informing the public through educational tnessag            Ies and
                 literature about responsible behavior before they impact Sanctuary resources. This objective will
                 be met by putting into place enforcement personnel on-site to carry-out education/interpretation
                 activities; to deter'violations of Sanctuary regulations; and to provide quick response to any
                 violations that do, occur. In addition, NOAA will work to expand the existing deputization
                 agreement (see below) to bring Sanctuary concerns into this enforcement framework.

                         While interpretive enforcement is the primary tool of the enforcement program, preventative
                 enforcement is also necessary. Preventative enforcement is best achieved by maintaining sufficient
                 patrol presence within the Sanctuary to deter violations and by preventing, through education,
                 inadvertent violations of the law. Successful enforcement relies on frequent water or land-based
                 patrols. Water patrols will ensure that users of the Sanctuary resources are familiar with the
                 regulations; deter willful or inadvertent violations of the law; and provide quick response to
                 violations and/or emergencies.

                         b. Integrating Existing Enforcement Efforts

                         Across the nation, Federal, State and cctunty/local     agencies are increasingly entering into
                 cooperative relationships to more efficiently carry out management and enforcement
                 responsibilities. ,Federal, State and County laws provide government agencies with a variety of
                 tools to protect marine resources. In so doing, these laws      strengthen law enforcement capabilities
                 by allowing agencies to build and rely upon each other's experience and physical resources. In
                 addition, local residents are helping by detecting and          reporting various violations including
                 harassment incidences and discharge violations.

                         The success of Sanctuary enforcement largely'depends upon how well the enforcement
                 entities are coordinated. Because of limited resources at the Federal and State levels, current
                 enforcement assets must be targeted and used in an efficient and directed effort to achieve
                 compliance with existing and proposed regulations.. ' Consequently, the coordination of
                 enforcement assets will be an integral component of continuous resource management. To achieve
                 this coordination objective, the Sanctuary may seek to develop an agreement under which Federal
                 Sanctuary enforcement officers are cross-deputized to enforce existing State regulations, and State

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                        Part V:  Sanctuary Management- Plan                                               Hawaiian Islands Humpback Whale
                                                                                                                  National Marine Sanctuary

                        enforcement officers are deputized to enforce           Sanctuary regulations. Such a cross-deputization
                        agreement already. exists between NMFS-OE; USCG; and the Hawaii DLNR-Division of
                        Conservation and Resources Enforcement, and State Marine Patrol to enforce Magnuson Federal
                        Fishery regulations, MMPA, and ESA regulations. However, the recent effinination of the State
                        Marine Patrol necessitates a. re-examination of state marine enforcement entities and
                        responsibilities. The Sanctuary will work closely with NMFS-O.E to revise such an agreement and
                        include the enforcement of Sanctuary regulations. Cross-deputization would foster a strong
                        working relationship between NOAA and the State of Hawaii, as well as assist in increasing
                        abilities to attain mutual goals of enhanced resource. protection for the humpback whales and their
                        habitat.

                                 there is an existing memorandum of agreement between NMFS and the National Ocean
                        Service related to enforcement within the NMSP, which:

                                     *    provides a mechanism to address the Sanctuary's enforcement needs;
                                     0    contributes to the attainment of NOAA's strategic goals and objectives;
                                     0    achieves greater economy by eliminating duplication of effort;
                                     0    enhances the availability and effective use of necessary enforcement resources; and
                                     0    provides a mechanism for Office of Ocean and Coastal Resources Management
                                          (OCRM) and NMFS-OE to systematically and routinely develop enforcement
                                          programs for all marine sanctuaries.

                        Thus, NMFS-OE wffl remain the primary enforcement entity responsible for enforcing the
                        -humpback whale approach regulations           -in the Sanctuary. NMFS-OE will coordinate enforcement
                        activities in the Sanctuary with the Sanctuary Manager, and with other State and Federal
                        enforcement agencies. NMFS-OE, in close cooperation with the Sanctuary Manager, will continue
                        to investigate potential approach violations, prepare enforcement reports, and coordinate with
                        NOAA's Office of General Counsel (NOAA-GC) to detem-iine whether, to pursue potential
                        violations.

                                 The enforcement of Sanctuary discharge and alteration of the seabed regulations will
                        require more close coordination with other agencies, since a violation of this Sanctuary regulation
                        is dependent upon whether there is a violation of an existing discharge or alteration of the seabed
                        regulation of a non-NOAA agency. As such, the Sanctuary Manager will work closely with
                        NMFS-OE and NOAA-GC to coordinate enforc*ement activities with DOH and DLNR violations of
                        discharge and alteration of the seabed permits and authorizations that also violate Sanctuary
                        regulations. NOAA will rely upon the relevant permit/authorization granting agency to determine if
                        their permit or authorization has been violated. - Sanctuary enforcement actions from NOAA may
                        only take place after such determination has been made. NOAA will develop an MOU with the
                        State of Hawaii concerning the coordination of enforcement activities in the Sanctuary.

                                 In general, existing MOUs establish a framework that allows for Sanctuary Program
                        management of enforcement activities in national marine sanctuaries. Under these agreements,
                        NMFS-OEJs required to develop, for SRD's approval, an annual enforcement plan' for each
                        national marine sanctuary, which identifies enforcement priorities.

                                 C. Conduct of the Enforcement Program

                                 Sanctuary enforcement -operations are a major component of Sanctuary management. A
                        NMFS Special Agent (Sanctuary Agent) will serve as coordinator of the operational enforcement
                        program on behalf of, and working in close consultation with, the Sanctuary Manager. The
                        Sanctuary Agent is -provided through an existing MOU between NOAA's Assistant Administrator
                        for Fisheries and the Assistant Administrator for Ocean Services and Coastal Zone Management.
                        The Sanctuary agent will. coordinate operational enforcementwith all participating agencies through.

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                  their respective chains of command.        Enforcement win be conducted in accordance with
                  enforcement operational plans, to be developed jointly between NMFS-OE and 'the Sanctuary
                  Manager. Enforcement operating plans, subject to revision as necessary, will include enforcement
                  priorities, patrol schedules, procedures for documenting violations, boarding procedures,
                  information needs, and other instructions to conduct day-to-day enforcement.

                          Through provisions    *of the Sanctuary's enforcement plan, the Sanctuary Agent win
                  coordinate the actions of this multi-agency group, and ensure all participants receive appropriate
                  training, equipment and support to conduct enforcement operations. The Sanctuary Agent will also
                  assist in the development and delivery of Sanctuary education and outreach products designed for
                  Sanctuary users and constituents, and intended to improvt voluntary compliance with Sanctuary
                  regulations. These activities may include education/interpretive programs for the commercial whale
                  watch industry, commercial 'and recreational fishing industries, hotel and. tourism industries,
                  conservation organizations, civic and business organizations, and public school systems.

                          As part of the continuous management process, an -enforcement review program will be
                  established for the Sanctuary that involves the SAC.          This program will ensure that the
                  management issues are being addressed by all agencies involved in Sanctuary enforcement, and
                  that the proper training, background and resource protection information is reaching the
                  enforcement staff. Every effort will be made to provide the enforcement officers with information
                  so they become familiar with the type of humpback whale research that occurs in the area.

                          d. Enforcement Program Goals and Objectives

                  Sanctuary Goals: The primary goal of enforcement in the NMSP is to protect Sanctuary
                  resources by achieving voluntary compliance with the applicable authorities. Effective enforcement
                  of relevant Federal and State authorities that protect the humpback whale and its habitat within the
                  Sanctuary is necessary. The principle goals associated with Sanctuary enforcement include:

                              0   Promoting public stewardship of the marine resources through. interpretive
                                  enforcement efforts; and
                              0   increasing the public's understanding of why it is important to comply with
                                  Sanctuary regulations; and
                              0   achieving voluntary compliance with applicable Federal, State, and County
                                  authorities.

                  Sanctuary Objectives: To achieve these goals, the Sanctuary manager will work with NMFS-
                  OE and applicable Federal and State enforcement authorities, and the public to accomplish the
                  following objectives:

                  !2b_jective 1:  Establish Cooperative Agreements and Efforts
                      Strategy-L.l: Develop partnerships with other Federal and State enforcement agencies in
                          order to provide a uniform and coordinated enforcement presence throughout th6
                          Sanctuary.

                      Strategy 1.2: Maintain an active relationship with Federal and State enforcement agencies to
                          identify areas of mutual concern and to develop cooperative responses to enforcement
                          issues.

                      Strategy 1.3: Enter, if necessary, into memoranda of understanding, cooperative enforcement
                          agreements, and joint operation plans with other enforcement agencies as appropriate.

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                       Strategy _14: Facilitate communication among       enforcement assets to avoid duplication of
                           effort.

                       Strategy 1.5: Promote cooperation, standardization of gear, and coordination of limited
                           resources such as vessels, radios, radio frequencies and training.

                       Strategy 1.6: Promote training and cross deputization among enforcement agencies.

                   Qbjgctive 2:    Facilitate Conununity Involvement

                       Strategy 2. 1: Encourage public involvement by encouraging site-specific interpretive patrols.

                       Strategy 2.2: Involve USCG, power squadrons, charter boat,          whalewatching and fishing
                           organizations in promoting compliance with Sanctuary regulations.

                       Strategy 2,3: Maintain an active dialogue with citizen groups seeking to enhance compliance
                           with Sanctuary regulations.

                       Strategy 2.4: Conduct community outreach programs to encourage compliance with
                           Sanctuary regulations and citizen involvement in reporting violations.

                       Strategy 2.5: Involve the SAC and interested public in assisting develop annual enforcement
                           plans.

                       Strategy 2.6: Establish an Enfor6ement/Regulation SAC Sub-Working Group consisting of
                           relevant regional law enforcement organizations and interested Sanctuary user groups.

                   Objective 3:    Develop Education and Awareness Programs

                       Strategy 3, 1: Emphasize education as a tool to achieve compliance with regulations.
                       Strategy 3.2 : Promote stewardship of the general public through specific outreach programs
                           regarding voluntary compliance with Sanctuary regulations.
                       Strategy 3.3: Train user. groups about regulations and procedures for reporting violations
                           (witness statement forms).

                       Strategy 3.4: Identify major user groups and develop and disseminate specific materials to
                           these groups through meetings and workshops.
                   Wb ective 4:    Coordinate Operations

                       Strategy 4. 1: Maintain an investigative capability to ensure quick response. to unlawful acts.
                       Strategy 4.2:   Develop and maintain the capability to effectively respond to violations of
                           Sanctuary regulations and to emergencies.

                       Strategy 4.3:   Develop enforcement operation plans that identify specific enforcement
                           strategies and priorities and outline the best means of achieving them.
                       Strategy 4.4:   Develop regulations for the Hawaii Sanctuary that are *comprehensible to the
                           general public and emphasize ease of enforcement.

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                     5. Agency Coordination

                          a. Permit Review

                          The Hawaii Sanctuary is unique among the other national marine sanctuaries when it comes
                  to regulations and permitting. As proposed, the Sanctuary does not contain additional substantive,
                  Sanctuary restrictions or prohibitions, nor contain separate requirements for Sanctuary permits,
                  certifications, or authorizations. SRD, in consultation with the State of Hawaii and other Federal
                  agencies, and after reviewing the scientific literature, has determined that the existing Federal and
                  State regulations are presently sufficient to provide protection for humpback whales and their
                  habitat; the only resources of the Sanctuary proposed at this time. As such, SRD is seeking only to
                  supplement existing Federal and State regulations that pertain, directly or indirectly, to the
                  protection of the humpback whale and its Sanctuary habitat. The Sanctuary wiU work within the
                  permit review processes of these authorities that are already in place to ensure that humpback
                  whales and their Sanctuary habitat are considered. The Sanctuary will also rely upon the collective
                  experience of the Hawaii Sanctuary Advisory Council to provide advice and recommendations to
                  the Sanctuary Manager and NOAA on issues pertaining to. Sanctuary management.

                              i. ESA and M?v1PA Perrnit Coordination

                          In August 1995, NOAA's National Ocean Service and NMFS signed a MOU concerning
                  permits and consultations for activities that affect the HIHWNMS (Appendix E). This agreement
                  sets forth specific. procedures by which NMFS-Office 4 Protected Resources and SRD will
                  cooperate and c  'oordinate on the issuance of permits and other authorizations, and with respect to
                  consultations under the ESA, NUVIPA, HINMSA, and the NMSA, for activities that may affect
                  humpback whales and their Sanctuary habitat. This MOU was developed to reduce agency
                  duplication and establish a more coordinated NOAA response to activities that could adversely
                  impact humpback whales or their Sanctuary habitat. NMFS will remain the lead agency, and will
                  work closely with the Sanctuary Manager to incorporate Sanctuary concerns into permits issued
                  under the ESA and MMPA.
                          Most of the permits that will be subject to this. M6U will likely concern research conducted
                  within 100 y4ds of humpback whales in Sanctuary waters issued under the MMPA and ESA. The
                  research permitting procedure will remain virtually unchanged, since the Sanctuary will, through
                  the process described in the MOU, provide its concerns within the 30-day public comment period
                  that NMFS is required to provide the public, thereby ensuring there is no added delay to action
                  taken on the permit. Delays may only occur if the project was particularly controversial or if
                  NMFS and SRD needed additional time to resolve differences concerning the permit. NOAA
                  expects that there will be few instances where this will occur.

                              ii. Humpback Whale Habitat Permit Review

                                      (a) NEPA and FWCA Coordination

                          The NMFS Pacific Islands Habitat Conservation Program (HCP) conducts National
                  Environmental Policy Act (NEPA) and Fish and Wildlife Coordination Act (FWCA) reviews of
                  Federal environmental assessments, environmental impact statements, and applications for permits
                  under the Clean Water Act (CWA), and the Rivers and Harbors Act (RHA). These reviews
                  include, but are not limited to, CWA Section 404 permits and RHA Section 10 permits issued by
                  the Corps.

                          SRD and NMFS are developing an MOU concerning the coordination of management
                  activities of NMFS and SRD in the Sanctuary. In addition to other issues, this MOU addresses the
                  coordination of NOAA's NEPA and FWCA reviews. NMFS-SWR will remain the NOAA lead

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                                                                                                     National Marine Sanctuary

                     for FWCA/NEPA reviews in Hawaii. The NMFS Pacific Islands Environmental Coordinator will
                     notify the Sanctuary Manger (and vice versa), of all FWCA/NEPA reviews for activities that may
                     affect Sanctuary resources and include the Sanctuary in the review process. This consolidation
                     ensures that Sanctuary concerns are coordinated with NMFS,. and that they are addressed within
                     existing NEPA and FWCA review processes. The Sanctuary's regulatory structure was designed
                     so that the Sanctuary works within the existing review structures, and as such, it will not have
                     authority to deny discharge or alteration of the seabed activities under CWA Section 404 or. RHA
                     Section 10 or other permits issued by'other Federal or State agencies.

                                         (b) State of Hawaii Discharge and Alteration of the Seabed Permits
                             To facilitate coordination and to ensure that comprehensive and coordinated protection of
                     humpback whales and their habitat is effectively achieved using existing authorities, SRD has
                     developed a MOU with DOH and DLNR. The MOU establishes mutually agreeable procedures for
                     coordinated review of activities requiring permits from the State for proposed activities that are
                     subject to Sanctuary regulations (i.e., discharge and alteration of the seabed activities), and that
                     may impact humpback whales or their habitat. In addition, the MOU calls for the agencies to work
                     together to monitor permitee compliance with     'the terms and conditions of State permits for such
                     activities, and to coordinate the enforcement of violations of Sanctuary regulations and
                     corresponding State regulations or permits.

                             The  Sanctuary will focus, its review on those discharge and alteration of the. seabed
                     activities that have the potential of adversely impacting humpback whales or their habitat,
                     including:     National Pollutant Discharge Elimination System (NPDES), Water Quality
                     Certifications, other general permits, and Conservation @ District Use Applications. The Sanctuary
                     regulation was developed to supplement existing Federal and State authorities, and as such, does
                     not have authority to deny such permits. The Sanctuary will work closely within these DOH and
                     DLNR permitting processes to ensure that humpback whales and their habitat are giv'en due
                     consideration.

                             b. Sanctuary Consultation Procedures

                             Section 304(d) of the NMSA, 16 U.S.C. � 1434(d) requires' that Federal agency actions
                     internal or external to a national marine 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 (or designee). Federal
                     agencies proposing such actions are required to provide the Sanctuary with a written statement'
                     describing the action and its potential effects on Sanctuary resources at the earliest time, but no later
                     than 45 days before the final approval of the action. If the Secretary finds that a Federal agency
                     action is likely to destroy, cause the loss of, or injure a Sanctuary resource, the Secretary (within
                     45 days of -receipt pf complete information on the proposed project) shall recommend reasonable
                     and prudent alternatives, which may include conduct of the action elsewhere, which         'can be taken
                     by the Federal agency implementing the agency action that will protect Sanctuary resources. The
                     agency head who' receives the Secretary's recommended alternatives shall promptly consult with
                     the-@Secretary on the alternatives. If the agency head decides not to follow the alternatives, the
                     agency shall provide the Secretary with a written statement explaining the reasons for that decision.

                             Under section 7 consultation procedures required by the ESA, NMFS routinely revi
                                                                                                                          iews
                     and comments on environmental impact statements, proposed permits, or other authorization� for
                     Federal projects (e.g., construction, dredging, sound generation) and Federally permitted activities
                     which may affect humpback whales. As a result of section 7 consultation, NNTS may recommend
                     specific measures to minimize impacts (e.g. changes to timing and/or location of actiorr).

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                         NOAA is committed to avoiding" unnecessary duplication of existing consultation
                 requirements under the NMSA and the ESA. The MOU between SRD and NMFS on coordinated
                 permit reviews also addresses coordinated consultation for Federal actions.                The  * MOU
                 consolidates the ESA Section 7 as implemented by NMFS and the NMSA Section 304(d)
                 consultation requirement as implemented by SRD for activities affecting Sanctuary resources in
                 Hawaii (Appendix E). As a result, agencies that initiate ESA section 7 with NMFS for an activity
                 that may impact humpback whales or their habitat, will also have initiated the NMSA section
                 304(d) consultation. NMFS will coordinate with the Sanctuary and issue one response that
                 satisfies both section 7 and section 304(d) consultations. NMFS will work closely with SRD to
                 ensure that Sanctuary concerns are addressed in the joint-consultation provision. After review and
                 completion of -the joint-consultation, NMFS will issue one NOAA response that fulfills both the
                 ESA section 7 and -the NMSA section 304(d) consultation requirements; thus eliminating the need
                 for two separate consultations.

                         c. Oil Spill and Hazardous Waste Contingency Planning

                         Both,living and non-living resources of the Sanctuary are susceptible to natural and human-
                 related changes. Because many of these changes are gradual in nature, they may only be detected
                 or forecast through long-term monitoring of environmental and biological indicators. However,
                 certain changes in conditions which may result from specific, dramatic events (e.g., oil or other
                 toxins introduced into the environment through an accidental vessel collision), pose serious threats
                 to both Sanctuary resources and to public health and safety.

                             i. Existing Capabilities

                         Section 4202 of the Oil Pollution Act of 1990 (OPA 90;          33 U.S.C. � 2701 et ig-q-)
                 amended Subsection 0) of Section 311 of the Federal Water Pollution Control Act [FWPCA; 33
                 U.S.C. 1321 (j)] to address the development of a National Planning and Response System. 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. The NRT membership consists
                 of 15 Federal agencies with responsibilities, interests and expertise in various aspects of
                 emergency response to pollution incidents and is responsible for developing a National
                 Contingency Plan (NCP). EPA serves as the@ chair and USCG serves as vice-chair. The Oceania
                 Regional Response Team (ORRT) is comprised of Federal and State (or Territory) representation.
                 Like the NRT, the ORRT is mainly a planning, policy and coordinating body, and does not
                 respond directly to incidents. The ORRT has Federal and State representation. EPA and USCG
                 co-chair the team. ORRT provides guidance and assistance to Area Committees and is responsible
                 for developing Regional Contingency Plans (RCP).

                         . As part of the National Planning Response and Planning System, Area Committees are to
                 be established for each area designated by the President. These Area Committees 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
                 National Contingency Plan (NCP) and Regional Contingency Plan (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

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                                                                                                      National Marine Sanctuary

                   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 Reauthorization Act of 1986 (SARA).entitled
                   the Emergency Planning and Community Right-to-Know Act (EPCRKA). . This Federal statute
                   requires emergency response planning at the State and local level. The State of Hawaii established
                   a Hawaii State Emergency Response Commission (HSERC) to comply with this requirement and
                   designated DOH as the lead agency to implement the EPCRKA. The HSERC was required to
                   delineate emergency planning districts and appoint local emergency response 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 subcommittee to draft a State plan to provide statewide guidance on
                   oil and hazardous substances emergency response. The result is Hawaii's Oil and Hazardous
                   Substances Emergency Response Plan. This plan is incorporated in the Area Contingency Plan
                   (ACP).

                                ii. Sanctuary Action

                         Contingency plans provide the basis under which agencies and individuals respond to oil
                   spills, chemical releases, vessel groundings and other events which may threaten natural resources
                   and human life. As a resource trustee, the National Marine Sanctuary Program is involved in
                   several levels of contingency planning with various State and Federal agencies. The National
                   Contingency Plan provides the basic framework and organization under which all oil and chemical
                   response efforts are conducted. It provides for a National Response Center, which acts as a
                   nationwide notification and reporting point for all spill incidents, and defines the roles of the
                   regional response teams, Federal and state on-scene coordinators, and special forces.                   The
                   Regional Response Tearns (RRT) are aligned within the boundaries of the Federally defined
                   Regions, and provide for large scale contingency planning and resolution of issues related to
                   response actions at the Federal-state interface level. The regional response plans generally deal with
                   strategic issues which affect large areas, and cross many local jurisdictional boundaries. The Local
                   Area Committees (LAC) are mandated by the Oil Pollution Act of 1990. The boundaries and size of
                   these Local Areas vary from region to region, and generally tend to follow county or city
                   boundaries in most areas. A few Local Areas have been delineated to,coincide with the limits of
                   Coast Guard Districts or Marine Safety Office areas. The Local Area Contingency plans are much
                   more detailed in nature and are tasked to consider several potential worst-case-scenarios for the
                   local area, making these plans tactical in scope and effect.

                   The National Marine,, Sanctuaries are represented at both the regional and local levels by
                   involvement in the RRT and LAC processes. Information specific to the National Marine
                   Sanctuaries is frequently inserted into the respective plans. In addition, individual sanctuary-
                   specific planning and support activity is underway which will provide detailed information about
                   the sanctuary resources needed by the response agencies in the event of an incide       -nt. The sanctuary
                   plan will also provide policy guidance to the sanctuary manager and other staff that deal with the
                   many issues which are involved in emergency response, damage assessment, and restoration
                   planning. One page information briefs have been prepared for insertion'into the Regional and
                   Local Area Contingency plans for each National Marine Sanctuary. The purpose of this insert is to
                   inform the Regional Response Team, Local Area Committee members and -other individuals and
                   agencies interested in oil. and chemical spill response issues about the basic information which
                   would be needed during the first few hours of an emergency response action. Each insert page
                   provides a small map showing the general relationship of the sanctuary boundary to the adjacent
                   coastline, and a listing of the exact coordinates of the boundary on the back of the page. A brief
                   history of the sanctuary i   'ncludes the date(s) of designation, reference to the major legisl       .ative
                   mandates, and the nature of the trustee responsibility. A brief contact list for key sanctuary
                   personnel, and a review of the major natural resources potentially at risk complete the information.

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                 These inserts will be revised     as needed and distributed to the DOC Regional Response Team
                 representatives and Local Area Committee members as needed to maintain awareness of the
                 National Marine Sanctuaries' existence and needs.

                          NMFS and HAZMAT represent NOAA on the Area Conniiittee established under the Oil
                 Pollution Act of 1990 (OPA 90). NMFS assisted the. U.S. Coast Guard in the development of the
                 Area Plan for -the Pacific Region which incorporates guidelines for response procedures, use of
                 dispersants, in-situ burning, coordination among Federal and State agencies, and damage
                 assessment. The Sanctuary will work in close coordination with NMFS, the Western Pacific'
                 Regional Response Team (RRT), and the Hawa                *ii State Emergency Response Commission
                 (HSERC), to ensure that Sanctuary concerns are addressed in these local response plans.

                          d. Damage Assessment and Restoration Efforts.
                          Section 312 of the NMSA, 16 U.S.C. � 1443, authorizes NOAA to commence civil actions
                 to recover for response costs and damages against persons who destroy, cause the loss of, or
                 injure sanctuary resources in National Marine Sanctuaries. In Hawaii, Sanctuary resources include
                 the humpback whale and its Sanctuary habitat. Damages include compensation for: the cost of
                 restoring, replacing, or Acquiring the equivalent of the destroyed, lost, or injured sanctuary
                 resource; the value of the lost-use of sanctuary resources pending restoration or replacement or the
                 acquisition of equivalent resources, or the value of a.sanctuary resource if it cannot be restored.
                 replaced, or an equivalent acquired; the cost of performing damage assessments; and the reasonable
                 cost of monitoring.

                          Funds recovered from damage actions must be spent according to specific priorities
                 delineated inthe statute. Twenty percent of recovered response costs and damages, up to a
                 maximum balance of $750,000, must be used to finance future -response actions and damage
                 assessments. The remaining funds must be spent according to this order of priority: (1) restoring,
                 replacing or acquiring the equivalent of the sanctuary resources which were the subject of the
                 action; (2) managing and improving the National Marine Sanctuary affected by the incident; and (3)
                 managing and improving any other National Marine Sanctuary.

                          When an incident results in destruction, loss, or injury to national marine sanctuary
                 resources, SRD collaborates with several other elements within NOAA to respond and to initiate
                 the damage assessment and restoration process. Chief among these is the D         'amage Assessment and
                 Restoration Program (DARP) consisting of the National Ocean Service's (NOS) Damage
                 Assessment Center (DAQ, the. National Marine Fisheries Service's (NMFS) Restoration Center
                 (RC), and the Office of the General Counsel. Other Federal and State agencies may, be involved
                 and include the Coast Guard, Navy, and State environmental protection and maritime enforcement
                 agencies.

                          NOAA's ultimate goal in damage          assessment is to restore injured coastal and marine
                 resources. The natural resource damage assessment process is design                 ,ed to be fair to the
                 responsible party while obtaining adequate compensation to the public to restore injured resources.
                 Section 312 is codified in the Sanctuary regulations at 15 C.F.R. � 945.9.

                      6. Research and Long-Term Moni

                          a. Introduction

                          Research and long-term monitoring are critical to achieving the Sanctuary*'s primary goal of
                 resource protection for the humpback whale and its Sanctuary habitat. To protect and conserve
                 humpback whales and their habitat for the benefit of present and future generations, it is necessary
                 to improve our present understanding of the humpback's vital life. rates (age at sexual maturity,

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                    pregnancy rates, variability in reproductive success, calving intervals, age-specific mortality and
                    survivorship rates, longevity), abundance, distribution, movement, behavior and interrelationships
                    with its Hawaiian habitat, and in other areas crucial to the whale's survival, such as the Alaskan
                    feeding grounds. It is also. necessary to identify how these parameters change over time due to
                    natural or human-induced factors. While much scientific research has been and continues t      o be
                    collected on humpback whales, there remain many unanswered questions and unknowns
                    concerning habitat requirements, population dynamics, threats and impacts, and in fully
                    understanding vital rates and social behaviors. Such baseline information is needed to develop an
                    understanding of Sanctuary resources and ensure the effective implementation of management
                    strategies using the best available scientific information.
                           Information from research and long-term monitoring activities will be used to:
                               0   provide NOAA and the.public with a means to evaluate the effectiveness of,the
                                   Sanctuary in protecting the humpback whale and its habitat;
                               *   provide a means to distinguish between the effects of human activities and natural
                                   variability on identified and perceived impacts to humpback whales and their
                                   habitat;
                                   develop hypotheses about cause-effect relationships which can then be investigated;
                                   evaluate management actions; and
                                   verify and validate- quantitative predictive models used to evaluate and select
                                   management actions.

                           A number of existing local    and mainland researchers and institutions. currently conduct
                    research. on humpback whales and     their habitat. They will be encouraged to participate in the
                    development and implementation of the Sanctuary's Research -and Long-Term Monitoring
                    Program. In coordination with the SAC's Research Working Group, NMFS, and other
                    researchers and resource managers, the Sanctuary Manager (and research coordinator) will develop
                    a research and long-term monitoring program that will complement existing efforts and fills needed
                    gaps. The Sanctuary research program will also coordinate with the education/interpretation
                    community to broaden public understanding of the need for research on humpback whales and
                    their habitat, the type of research occurring within the Sanctuary, and results from research-
                    activities. This coordination will extend to the research agendas of other national marine
                    sanctuaries whose scientific inquiries address humpback whale populations in both the Pacific and
                    Atlantic Oceans.
                            The Sanctuary Monitoring Program will focus both on North Pacific humpback whales and
                    components of the Sanctuary's habitat which -are important to humpback whales (e.g., chemical,
                    physical and biological oceanography, human activities, spatial and temporal needs). Long-term
                    monitoring and the resulting data bases will provide the basis for interpreting and/or predicting
                    natural and human-induced events in the Sanctuary and in areas adjacent to the Sanctuary. General
                    directions and priorities for additional research are provided in this section as a guide for
                    identifying and selecting appropriate future Sanctuary research. projects. The process for preparing
                    an annual Sanctuary Research Plan (SRP) and annual report is also discussed below.

                            Finally, the process to identify additional -marine resources and ecosystems of national
                    significance for possible inclusion in the Sanctuary (see Part III, C of the Management Plan) will
                    also involve developing recommendations for research objectives and strategies' that correspond
                    with the identified resourg6s. Step 3 of the research review/evaluation process addresses further
                    study of additional marine resources and ecosystems. Inquiry into the significance of the'identified
                    resources or the need for additional management may be warranted. The Sanctuary will look for
                    guidance and recommendations from the SAC Working Groups or sub-committees established to
                    assist in this area. These recommendations would be considered in developing a proposal and
                    modifications to the yearly SRP for the Sanctuary. If a supplemental EIS/MP, is necessary, it will

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                 be reviewed by the public before changes are made to the management plan and implementing
                 regulations.

                         b. Research and Long-Term Monitoring Program Goals and Objectives

                         The primary goals of a Research and Monitoring Program are to improve understanding of
                 the central North Pacific population of humpback whales and their wintering habitat; to address and
                 resolve specific management concerns; and to coordinate and facilitate information exchange
                 among the various researchers and institutions, agencies, and the general public.

                 Sanctuary Goals: The HINMSA and the NMFS Humpback Whale Recovery Plan establish the
                 following research and monitoring goals:

                                Development of a greater understanding of humpback whales, their habitat
                                requirements and the factors responsible for negatively impacting their recovery;
                                Identification of research needs and priorities;
                                Establishment of a long-term ecological monitoring program with respect to
                                humpback whales and their habitat;
                                Establishment of str  iong communication and cooperation between. the scientific
                                community and resource managers;
                                Coordination of research efforts to achieve the most beneficial results;
                                Promotion of public awareness and resource stewardship; and
                                Identification of resources and ecosystems, in addition to humpback whales and
                                their habitat, for possible Sanctuary management.

                         The Sanctuary -Research and Long-Term Monitoring Program will play an integral role in
                 the overall effort to implement portions of the NMFS Humpback Whale Recovery Plan and other
                 long-term protection plans for the humpback whale and itg habitat.

                 Sanctuary Objectives: To achieve these goals, the Sanctuary Manager and Sanctuary Research
                 Coordinator will work with NUFS and the SAC's Research Working Group to accomplish the
                 following objectives2:

                 Qbjective 1:   Characterize the central- North Pacific Stock of humpback whales and their
                     Hawaiian habitat to establish a baseline for detecting and monitoring natural- and human-
                     induced changes.

                     Strategy 1. 1: Survey and evaluate available   information on humpback whales to determine
                         baseline information on vital rates, population estimates, distribution, migration, birth and
                         survivorship, and behaviors.

                     Strategy 1.2: Survey and evaluate available information on humpback whales and their habitat
                         to identify essential habitat and to determine critical data and information gaps.

                     Strategy 1.3: Survey and evaluate available information to identify potential human activities
                         and natural phenomena responsible for potential injury, harassment or disturbance to
                         humpback whales and their habitat.

                 2Note: The following objectives, strategies and tasks represent goals that the Sanctuary will strive to fulfill over the
                 next 5- 10 years. However, resource and staff limitations may hinder the completion of all tasks. Each year, the
                 Sanctuary Manager and Research Coordinator will coordinate with the SAC Research Working Group to develop an
                 annual Sanctuary Research Plan based upon available resources and identified priorities for that year. The Sanctuary
                 research priorities will be congruent with priorities established by the. national program.

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                           Strategy 1.4: Provide support to analyze existing and previously collected data and publish in
                               scientific journals or for new projects that fill needed knowledge-gaps.
                       Objective 2:     Establish a.coordinating framework and procedures for identifying, selecting and
                           sponsoring research projects to ensure.that the research topics are responsive to management
                           concerns and that research results contribute to improved management decision making in the
                           Sanctuary.
                           Strategy2j: Establish a SAC Research Working Group to provide advice and
                               recommendations to the SAC, Sanctuary Manager and Sanctuary Research Coordinator on
                               identifying, selecting and sponsoring Sanctuary research projects based on research and
                               management needs.

                               Task 2. 1. 1:    Develop guidelines for conducting Sanctuary sponsored research projects.

                           Strategy 2.2: Annually evaluate t      he effectiveness and efficiency of the Sanctuary research
                               program and its integration with other resource protection and education objectives.
                       Objective 3:     Develop a comprehensive long-term ecological monitoring program to fill
                           knowledge gaps and address management related issues and concerns. The program should
                           incorporate experimental designs that can help detect and discern the cause or causes of future
                           changes and trends in the vital parameters and the important habitats and habitat components of
                           the humpback population that "winters" in Hawaii.

                           Strategy 3. 1: Develop and implement a coordinated long-term program for monitoring the
                               distribution, abundance, age-sex composition, movement patterns, survival/mortality,
                               habitat use and behavior of 'whales in,.and possibly adjacent to the 'Sanctuary.

                               Task 3. 1. 1:    Conduct a thorough analysis of existing photographic mark-recapture data
                                    information systems to determine the steps needed to ensure the system can be used to
                                    asses population abundance, distribution and movements, and other population
                                    parameters.

                               Task 3.1.2:      Support NUFS efforts'to continue the statewide mark-recapture effort using
                                    researchers through the state.

                               Task 3.1.3:      Collaborate with NUFS to support a coordinated long-term statewide aerial
                                    survey program to monitor changes in population abundance and distribution.

                           Strategy 3.2: Develop and implement a long-term program for identifying, assessing and
                               monitoring threats and impacts to humpback whales and their habitat. Scientific protocols
                               should be designed to discern cause and effect relationships between variables. ' Identify
                               steps to be taken to assess and eliminate, minimize, or mitigate threats.

                               Task 3.2. 1:     Support systematic research of vessel traffic and acoustic impacts on
                                    humpback whale behavior and distribution. Studies should investigate cause and effect
                                    relationships of how noise, and vessel or aircraft movement, speed, type and density
                                    impacts humpback whales.

                               Task 3.2.2:      Monitor water. quality and effects of vessel, point and land-based pollution
                                    on humpback whales and their habitat. Facilitate scientific studies that discern cause
                                    and effect relationships. between water quality and humpback whales. Explore other
                                    aspects of the humpback whale habitat as indicators of pollutant impacts on the

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                            environment since humpback whale may not manifest the impacts of such pollutants for
                            many years.

                     Strategy 2.3: Monitor all research activities conducted in the Sanctuary and obtain data and
                         data analyses from such research activities to the maximum extent practicable. Ini     itiate a
                         voluntary research registry for all research projects, whether focusing on the humpback
                         whale or other aspects of its'habitat in the Sanctuary.

                 Q_bjective 4:  Develop a data and information management system for tr        acking and integrating
                     new information into an evolving understanding of humpback whales and their@habitat.

                     Strategy 4. 1: Assess the effectiveness of existing databases and information systems used for
                         long-term monitoring of humpback whales and their habitat. Include an analyses of data
                         compatibility, utility, purpose, costs, accuracy (data , verification), and accessibility
                         (whether or not researchers will provide proprietary data).

                     Strategy 4.2: Identify, in consultation with researchers, educators, and Federal, State and
                         county agencies the types of data and information that should be stored, and the most
                         effective and user-friendly means for accessing this data and information.

                     Strategy 4.3: Explore the feasibility of developing a GIS or other appropriate data/information
                         technologies cooperatively with other Federal, State and county agencies involved in ocean
                         and coastal resource management. The 'GIS should include information on humpback
                         distribution, the biological, physical, chemical parameters of humpback whale habitat, and
                         human activities in and adjacent to the Sanctuary).

                 Qbjective 5:. Encourage information exchange among all organizations and agencies undertaking*
                     management-related research in the Sanctuary to promote more informed management and
                     decision making.

                     Strategy 5. 1: Facilitate communication with the research and education communities, user
                         groups, and the public to promote mutual understanding of each other's -role in encouraging
                         public knowledge and appreciation of humpback whales and their habitat.

                     Strategy 5,2: Incorporate research results into S 'anctuary education and interpretive programs
                         and publications in a format and language.useful to resource users and the general public.

                     Strategy 5.3: Develop a program to disseminate scientific research results, including an
                         information exchange network, conferences, and support for the publication of research
                         findings in peer-reviewed scientific journals.

                     Strategy 5.4: , Develop, in cooperation with local education and conservation organizations,
                         teacher enrichment programs to facilitate the transfer of information into science, math,
                         environmental and social studies into K- 12 and curriculum.

                 Qbjgctive 6:    Facilitate the process to evaluate marine resources, in addition to humpback whales
                     and their habitat, for possible inclusion in the Sanctuary.

                     Strategy 6. t: Support research into marine resources, in addition to humpback whales and
                         their habitat, that may be of special national significance and suitable for Sanctuary.
                         management. Explore the significance of these resources and the need for additional
                         management measures.

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                           Strategy 6.2: Work with the SAC's Research Working Group in developing additional
                                research objectives and strategies that correspond with identified resources.

                                c. Framework for Research
                       The Sanctuary's rese@rch program will consist of five principal categories:

                                        baseline. studies to determine features and processes of the North Pacific humpback
                                        whale wintering habitat; vital rates, behavior, abundance, and distribution of
                                        humpback whales; interactions among the living resources comprising the North
                                        Pacific humpback whale wintering habitat; and types and patterns of human
                                        activities within and around the Sanctuary;             . .
                                        monitoring studies to document changes in humpback whale behavior, Sanctuary
                                        use patterns, environmental quality of Sanctuary habitat components, and human
                                        activities and their effects on Sanctuary resources;
                                        predictive studies to assess causes and effects          of ecological and environmental
                                        changes to determine trends and anticipate Sanctuary management issues;
                                    0   data and information storage system to catalogue past, present and future research
                                        studies so that these results are easily accessible to the public;
                                    0   studies of marine resources, in addition to humpback whales and their habitat, for
                                        possible inclusion in the Sanctuary.

                       Each of these categories is described in more detail below:

                                    i. Baseline Studies

                                Baseline seasonal studies will generally be directed at better understanding the status
                       (abundance, distribution and survivorship),' condition (vital rates) and behaviors of the central
                       North Pacific population of humpback whales win          'tering in Hawaiianwaters, their particular habitat
                       requirements, and the status and condition of that habitat. In addition,. initial baseline studies inay
                       also focus on the effects of human activities on both the humpback whales and on                      resources
                       comprising their habitat.

                                    ii. Monitoring

                                In addition to data bases documenting living and non-living components of the Sanctuary,
                       successful management requires knowledge and understanding of long-term changes occurring
                       within the Hawaiian Islands system., Humpback whales reach sexual maturity in 7-9 years.
                       Females calve about every two years. Therefore impacts to humpback W hales will take a long time
                       to detect, and a long-term monitoring program will need to recognize and observe trends over a 20-
                       50 year time frame. The monitoring program should include studies that can help detect and
                       deterrnine the probable or possible causes of changes (natural or human-cause'd) in the distribution,
                       abundance, age-sex composition,. and habitat-use patterns of humpback whales and key
                       characteristics of the habitat. Consistent and comparable long-term data are needed to identify
                       spatial and temporal trends in these parameters. Monitoring, studies should also be established to
                       investigate the relationship of water quality and human activities on humpback whales                 and their
                       habitat.

                                    iii. Predictive Studies

                                The Sanctuary research program will conduct, as necessary, targeted studies that address
                       management needs, analyze. the causes and consequences of system changes, and predict the

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                 effects on humpback whales of new or increased levels of human activity within or around the
                 Sanctuary.

                            iv. Data and Information System

                         An important component of the research program is to establish a mutually agreeable
                 system for storing/archiving and retrieving past, present and future research data and other relevant
                 information. The Sanctuary will work with researchers and government agencies to determine the
                 best way to facilitate information storage and retrieval.       Possible systems could involve a
                 Geographic Information System (GIS), computer accessible network, Internet, on-site data center,
                 fluke-photo catalogue and other appropriate data'systerns.

                            v. Marine Resource Studies

                         Finally, the research program will support research into marine resources, in addition to
                 humpback whales and their habitat, that may be of special national significance and suitable for
                 Sanctuary management. The studies will explore the significance of these resources and the need
                 for additional Sanctuary management measures. The Sanctuary will work with the SAC's
                 Research Working Group in developing additional research objectives and strategies that
                 correspond with identified resources

                         d. Selection of Sanctuary-Funded Research Projects

                         Sanctuary funded research projects will primarily focus on management issues and
                 concerns related to the central North Pacific population of humpback whales which frequent the
                 main Hawaiian Islands. The Sanctuary Manager, Sanctuary Research Coordinator, and SAC
                 Research Working Group will develop research selection procedures to ensure that the Sanctuary's
                 research program is consistent with the policies and directions of the NMSP. Sanctuary-funded
                 research projects will be selected in accordance with research priorities and monitoring needs
                 identified in the annual Hawaii Sanctuary Research Plan.

                         Several preliminary areas of research have been identified by the public during the
                 development of this final management plan. These include:

                                 Characterization of the humpback whale habitat within the 100 fathom isobath;
                                 Determination of humpback whale population vital rates (e.g., age at sexual
                                 maturity, pregnancy rates, variability in reproductive success, calving intervals,
                                 age-specific mortality and survivorship rates, longevity) and population abundance
                                 and distribution.
                                 Assessment of various human impacts on humpback whales and their habitat (e.g.,
                                 vessel traffic type and volume; acoustics; water quality; research; deep-sea waste
                                 disposal, alterations of the seabed).
                                 Development of temporal and spatial data bases to measure the "carrying capacity"
                                 of human activities, with respect to humpback whales and their habitat.
                                 Compilation of an annual report on Sanctuary-sponsored research on humpback
                                 whales and their habitat to enhance Sanctuary management and resource protection'.

                         Sanctuary funded research will be coordinated by. the Sanctuary Research Coordinator,
                 who will work closely with'the SAC's Research, Working Group, NMFS Southwest
                 Region/Center, and the National Marine Mammal Laboratory (NMUL). Coordination will be
                 particularly important between NMFS and the Sanctuary since NMFS is involved with the
                 coordination of humpback whale research throughout the entire Pacific basin. As such, Sanctuary
                 funded research priorities may differ from those by NMIFS given to humpback whale research

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                                                                                                    National Marine Sanctuary

                     efforts throughout the larger Pacific basin area. The Sanctuary Advisory Council's Research
                     Working Group will be responsible for providing advice and recommendations to the SAC and the
                     .Sanctuary Manager on: priorities for research topics; establishing evaluation criteria for Request for
                     Proposals (RFP's); establishing reporting and publishing guidelines; monitoring the quality of
                     ongoing research; and. distributing preliminary findings for peer review. The Sanctuary Research
                     Coordinator will consult with NUFS-SW and the NMML to ensure that the proposed research is
                     consistent with the objectives of other NOAA humpback whale research efforts in the Pacific.
                     Final Sanctuary approval for research projects will be made following receipt by the principal
                     investigators of necessary permits -from appropriate agencies. Where possible, collaborative
                     research projects - will be developed to study humpback whales in surnmer feeding grounds in
                     Alaska and migration routes to and from these areas. The Pacific Region of the NMSP provides an
                     excellent platform for research since humpback whales are found off the Olympic Coast, Gulf of
                     the Farallones, Cordefl Bank, Monterey Bay, Channel Islands, and Fagatele Bay National Marine
                     Sanctuaries.

                                i. Research Permits

                            Research activities that involve approaching humpback whales within 100 yards, or taking
                     as defined by the MMPA and'ESA are required to obtain a NNMS research permit. For such
                     activities conducted in State waters, a DLNR-DAR research permit is also required. No new or
                     additional Sanctuary permit will be required to conduct such research in the Sanctuary. SRD has
                     developed a MOU with NMFS to work within their.existing permitting structure to review and
                     provide recommendations on proposals to conduct research, on humpback whales within the
                     Sanctuary. This review process will occur during the thirty-day public review process required
                     under the MMPA.

                                ii. Annual Sanctuary Research Plan (SRP)

                            An annual SRP will be prepared by the Sanctuary Manager, with assistance from the SAC
                     Research Working Group. The annual SRP is a brief description of the research goals for each
                     fiscal year and a description of how these goals fit into those of the Sanctuary management plan.
                     SRD will then incorporate the annual SRP into a national plan that includes SRPs for each
                     Sanctuary. Steps in the annual process include:

                        (1) Identifying Sanctuary managern   ent concerns;

                        (2) Establishing research priorities, based upon    the identification of management concerns.
                            Research priorities  'will be established by the Sanctuary Manager in consultation with the
                            SAC and. its Research Working Group, and relevant NMFS Scientific Review Groups.
                            Important factors to be considered in establishing research priorities include:

                            � whether immediate or evolving management issues can be resolved through directed
                                research by the Sanctuary or other means;
                            �   prospects of related research in progress; and
                            �   availability of funding and equipment for research.support.

                        (3) Holding research workshops on an occasional basis to facilitate the identification of
                            research problems or opportunities. After the management issues and research priorities
                            are developed, a draft SRP is prepared.
                        (4) Preparing a SRP that includes documentation of how each project meets. SRD's selection
                            criteria.

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                  (5) A research announcement and request for detailed research proposals is prepared. The
                       announcement and request for proposals will discuss the identified management concerns,
                       and summarize past and current related research. Its purpose is to solicit proposals from
                       the scientific community,that'satisfy the criteria specified in the SRP.

                          iii. Monitoring Research Project Progress
                       The Sanctuary Manager (or Research Coordinator) will coordinate with NMFS Pacific Area
               Office to'monitor humpback whale research in the Sanctuary. The Sanctuary Manager will assist
               NMFS, as necessary, to maintain records of all current research, equipment,bding used on the site,
               frequency of researchers' visits to the site, and progress to date on each current research project.
               To the extent possible, the Sanctuary Manager will help facilitate research activities within the
               Sanctuary. Final research reports may be peer reviewed by scientists recognized in the particular
               field of inquiry, as well as by resource managers. before final approval of the report by NMFS.
               Particularly outstanding research reports may be published by SRD or NMFS in its Technical
               Report/Memorandum Series.

                           iv. Information Exchange

                       Direct SRD funding for research is limited. To complement and augment directly funded
               research, SRD encourages research funded by other sources,* particularly where it supports
               management objectives to protect the humpback whale and its habitat. For example, water quality
               or whale monitoring programs conducted by a Federal, State, or county agency provide a wealth of
               data which have direct application for Sanctuary management. To assist in this information
               exchange effort, SRD will make available to other agencies and interested private institutions
               Sanctuary resource data obtained from past and ongoing research projects.

                   7. Education and Outreach

                       a. Introduction

                       Public awareness, understanding, and appreciation for the special values of humpback
               whales are essential for their protection and continued vitality. The Sanctuary education and
               interpretive program will focus on enhancing public understanding and appreciation of humpback
               whales and their relationship with the Hawaiian Islands marine environment. A well-informed
               public and user community will not only cultivate a greater appreciation of the need to protect
               Sanctuary resources, but also, enhance voluntary regulatory compliance. The Sanctuary will
               accomplish this by working with existing public and private-sector' educational, programs and
               institutions to produce and disseminate information, promote public participation, develop outreach
               activities for the visitor and local population, and provide information to various user groups on the
               Sanctuary regulations designed to ensure resource protection.

                       Changing information gaps and needs demand that education and outreach be a continuing
               and evolving process. Information translation, packaging and dissemination is an important part of
               resource protection. While the primary purpose of the Sanctuary is protection of resource and site
               qualities, the Act also requires, NOAA to facilitate public and private uses (including Native
               Hawaiian uses) consistent with the primary objective of resource protection.,

                       There are two major groups of people that the Sanctuary intends to target: residents and
               visitors of Hawaii. State of Hawaii statistics indicate @hat 80 percent of the visitors and residents
               engage in some form of ocean or coastal activity. It is imperative that these ocean users are
               educated users. Effective education programs occur at the community level. The Sanctuary will
               work with communities and groups to ensure that this occurs.

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                                                                                                 National Marine Sanctuary

                            TheffINMSA mandates the development of an educatio       in and interpretation program for the
                    humpback whale and its habitat, and other marine resources found within the Hawaiian
                    environment. Strong support for such an education program was received from the public during
                    the March 1993 and 1994 public meetings and technical consultations. In addition, the NMVS
                    Humpback Whale Recovery Plan and H         'awaii Ocean Resources Management Plan specifically
                    promote education and outreach as an important management tool for resource protection.

                            A number of existing local agencies and private institutions currently provide education
                    opportunities on these resources.      These agencies will be encouraged to participate in the
                    development. -and implementation of the Sanctuary's Education and Interpretation 'program.
                    Through partnerships, MOUs, and cooperative agreements, the Sanctuary will - work- to
                    complement and assist existing efforts to develop and disseminate information about the humpback
                    whale and its habitat, and other resources to visitors and residents /state-wide. In addition, the
                    Sanctuary will encourage and work with researchers to develop and incorporate research results
                    into educational programs and products.

                            b. Education and Outreach Program Goals and Objectives

                            The primary goals of the Education and Outreach Program are to: enhance knowledge of
                    the Sanctuary's purposes, goals and regulations; improve public awareness and understanding of
                    the humpback whale and its habitat; facilitate responsible human uses within the Sanctuary;
                    encourage public participation; and facilitate information exchange between the various
                    environmental educators and interpreters, scientists, agencies, and the general public.

                    Sanctuary Goals: The NMSA and the HINMSA, have established additional education and
                    outreach goals, to:

                                    promote public understanding, support, and participation in the Hawaiian Islands
                                    National Marine Sanctuary and the NMSP;
                                    educate and interpret for the public the relationship of humpback whales to the,
                                    Hawaiian Islands marine environment;
                                    promote education among users of the Sanctuary and the general public about
                                    conservation of humpback whales, their habitat, and other marine resources
                                    enhance public awareness, understanding, appreciation, and wise , use of the
                                    Hawaiian Islands marine envirom-nent;
                                    facilitate environmental education opportunities for all segments of society-,
                                    promote and. foster a clear awareness of the economic, biological, recreational,
                                    educational, research and diverse cultural values of the Hawaiian Islands, as well as
                                    the interdependence of these values upon one.another;
                                    facilitate all public and private uses if 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; and
                                    provide opportunities for citizen involvement in developing and implementing
                                    education programs.

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                   Sanctuary Objectives: To achieve these goals, the Sanctuary Manager and Education
                   Coordinator will work with the SAC's Education Working Group to accomplish the following
                   .objectiveS3:

                   QbLective 1:     Enhance public awareness, understanding and appreciation of humpback whales
                       and their habitat.

                       Strategy 1. 1: Develop and disseminate, in cooperation with existing education organizations,
                           educational materials and programs aimed at enhancing public awareness and appreciation
                           for humpback whales and their winter habitat, and demonstrate the need for their
                           protection.

                           Task 1. 1. 1:      Develop pamphlets, brochures, newsletters, marine education resource
                                directories, videos, fact sheets, and education packets on the humpback whale's
                                biology, behavior, migration, distribution and habitat preferences in a variety of
                                languages for broad public distribution.

                           Task 1. 1. 3:      Develop cooperative arrangements with, existing institutions to develop
                                information products and programs and to co-locate information displays on humpback
                                whales and their habitat throughout the Sanctuary.
                       Strategy 1,2: Educate users about the'possible threats and impacts to humpback whales in
                           Hawaii and elsewhere and actions that can be taken to prevent or mitigate these impacts.

                           Task 1. 2. 1:      Provide educational materials to the public about impacts from human
                                activities in Hawaii (approaching and disturbing whales, pollution, runoff, vessel
                                traffic, noise, high seas driftnets).

                           Task 1.2.2:        Support existing efforts to expand the annual Boat Captains, training
                                program for whalewatch captains and other interested boaters.

                           Task 1.2.3:        Encourage public stewardship. Provide action items that individuals and
                                groups can do to ensure the protection for humpback whalis and their Hawaiian habitat
                                (i.e., reduce pollution and degradation, observe humpback whale approach regulations,
                                participate in marine conservation and outreach programs)-

                   Qbjective 2:     Create public awareness of the HIHWNMS and the NMSP.

                       Strategy 2. 1: Distribute and present information about the national program mission and other
                           sites to interested groups.
                           Task 2. 1. 1:      Develop brochures, newsletters and oilier media, including multi-lingual
                                interpretive signs and kiosks at various vantage points (boat ramps, scenic lookouts,
                                tourist information centers) to educate the public about Sanctuary resources and the
                                HIHWNMS.

                   3Note:  The following objectives, strategies and tasks represent long-term goals that the Sanctuary will strive to
                   fulfill over the next 5-10 years. However, resource and staff limitations may hinder the completion of all tasks.
                   Each year, the Sanctuary -Manager and Education Coordinator will coordinate with the SAC Education Working
                   Group to develop an annual Sanctuary Education Plan based upon available resources and identified priorities for that
                   year. The Sanctuary education priorities will be congruent with priorities established by the national program.
                   Many of the following objectives, strategies and tasks directly resulted from the many ideas suggested by the public
                   during the statewide March 1993 and March 1994 public meetings and technical workshops.

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                                                                                                     National Marine Sanctuary

                            Task 2.1.2:      Participate in environmental awareness celebrations, festivals, conferences
                                 and workshops.
                        Strategy 2.2: Clearly articulate the purpose, goals and objectives, regulations and resources
                            of the HIHWNMS wit      'h specific emphasis on the need to use the resources and area wisely
                            to ensure sustained use.

                        Strategy 2.3: Promote, in cooperation with other non-profit organizations, the concept of
                            support groups and cooperating associations to facilitate public and volunteer.participation,
                            and add additional resources to implement the HIHWNMS program.
                        Strategy 2.4: Develop an information/educationtresearch network with other marine
                            sanctuaries conducting research on humpback whales and their habitats.

                            Task 2.4. 1:     Collaborate with other national marine sanctuaries and summarize existing
                                 research and education efforts on humpback whales and their habitat.

                            Task 2.4.2:      Initiate cooperative education/research programs and projects among other
                                 sanctuaries with humpback whales.

                    Q@Jective 3:     Establish a coordinating framework and procedures for identifying, selecting and
                        sponsoring education projects to ensure that the education topics are responsive to management
                        concerns and that the education products contribute to greater understanding and appreciation
                        of the Sanctuary, humpback whales and the broader Hawaiian Islands marine environment.

                        Strate    3. 1: Establish a Sanctuary Advisory Council Education Working Group to provide
                            advice, recommendations, and information, to the Sanctuary Manager, Sanctuary Education
                            Coordinator, and the SAC on identifying: (1) current activities in the education community;
                            (2) methods and opportunities to establish cooperative efforts; (3) direction for the
                            Sanctuary Education Program; (4) ways to prevent duplicative efforts; (5) guidelines for the
                            production. of educational materials; and to (6) develop annual        Sanctuary education and
                            outreach plan.

                        Strategy 3.2: Develop standards and application criteria for Educational Request for
                            Proposals (RFPs).

                        Strategy 3.3: Develop, with assistance from the SAC Education Working Group, guidelines
                            for project selection and awards.

                        Strategy 3.4: Create opportunities for public involvement'to encourage feedback on the
                            effectiveness of education/interpretive programs, so that ineffective programs can be
                            restructured and successful ones promoted.

                    Objective 4:     Encourage information exchange among all persons, organizations and a
                        undemiking environmental education and research activities in the Sanctuary.                   gIencies
                        Strategy 4. 1: Collaborate with other education organizations and institutions to generate joint
                            opportunities to provide interpretive/education services, including extension and outreach
                            programs, marine curriculum, newsletters, volunteer programs and workshops.
                        Strategy 4.2: Initiate a coordination network with humpback whale educators and researchers
                            in the North and South Pacific and Atlantic Oceans.

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                      Strategy 4.3: Facilitate communication between the education and research. communities and
                           tourism/recreation industry to promote mutual understanding of each other's role in
                           encouraging public knowledge and appreciation of humpback whales and their habitat.

                      Strategy 4.4: Incorporate research results into Sanctuary education and interpretive programs
                           and disseminate publications in a format and language useful to resources users and the
                           general public.
                  Objective 5:     Develop a user friendly depository for information and research results pertaining to
                      Sanctuary resources and management information.

                      Strategy 5. 1: Archive research results and reports in depositories/libraries in at least one
                           central. location and explore the possibility of using the public library system throughout the
                           islands to make information accessible to the public.

                           Task 5. 1. 1:    Explore the feasibility for an on-line computer interactive information
                               storage/retrieval system (e.g.,' Internet or an. on-line server), after assessing existing
                               computer interactive resources.

                  QbJective 6:     Establish cooperative education programs with Native Hawaiian groups to develop
                      programs that educate the general public about Native Hawaiian traditions, culture, resource
                      uses and religion as they relate to Hawaii's marine environment.

                      Strategy 6. 1: Nurture a cultural awareness based upon the Native Hawaiian tradition of
                           respect for the ocean and its resources as a central theme of the. Hawaiian culture.

                      Strategy 6.2: Document Native Hawaiian knowledge of traditional and cultural management
                           techniques for incorporation into management and education programs.

                           Task, 6.2 @ 1: Recognize and encourage the rehabilitation of traditional Native Hawaiian
                               resource management and subsistence . demonstration projects (Ahupua'a, Konohiki
                               fisheries, Taboos, fish ponds, etc.)

                      Strategy 6.3: Support efforts to translate Native Hawaiian stories, myths and legends
                           concerning the marine environment into written records.'

                           Sanctuary education programs and activities will be coordinated by a Sanctuary Education
                  Coordinator who will work closely with the SAC's Education Working Group. The Education
                  Working Group will be responsible for providing advice and recommendations on: the
                  development of annual Sanctuary Education Plans; generating and establishing priorities for
                  education topics; establishing evaluation criteria for Request For Proposals (RFPs); monitoring the
                  quality of ongoing education programs; and distributing preliminary findings for peer review. The
                  Sanctuary Manager and Education Coordinator will work to implement the recommendations of the
                  SAC Education Working Group. The effectiveness of the Education Program will be evaluated
                  annually by the Sanctuary Manager, Education Coordinator and SAC.

                           C. Education and Interpretation Opportunities

                           Education and interpretation     opportunities for the Sanctuary will be targeted toward, three
                  basic user audiences: visitors to the Sanctuary; visitors to the Sanctuary headquarters and satellite
                  offices; and interested individuals or. organizations not visiting either location (off-site). Numerous
                  education and interpretation opportunities exist for all types of audiences.

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                     Part V: SanctuaryManagement Plan                                      Hawaiian Islands Hu'mpback Whale
                                                                                                  National Marine Sanctuary
                            The accessibility of the Hawaiian Islands Humpback Whale National Marine Sanctuary to
                     numerous recreational and commercial boaters, swimmers, surfers, divers, commercial fishermen,
                     and scientific researchers, provides a variety of ways in which to reach the visiting public with
                     information about the Sanctuary's resources and programs. Various tools exist to reach on-site
                     us6rs:' brochures and other informational materials distributed aboard whalewatch vessels;
                     recreational charterboat captains; and research and educational institutions sponsoring vessel trips
                     to the site.

                            The establishment of the Sanctuary headquarters on Maui with other potential satellite
                     offices on the neighbor islands will provide a focal point for interested members of the public who
                     may or may not intend to actually visit all areas of the Sanctuary. These offices will make available
                     'information and interpretive materials on humpback whales, Hawaii's marine ecosystem, Native
                     Hawaiian traditional and cultural activities, recreational. activities, and Sanctuary regulations.

                            Some of the educational and interpretive materials will be presented in audio-visual formats;
                     others in printed form. The Sanctuary headquarters will also provide a location for the public to
                     learn about other private or government marine resource management activities occurring within or
                     near the Sanctuary. Information will also be provided on how the Sanctuary program coordinates
                     with other public and private institutions or agencies to ensure the continued protection and
                     viability of Hawaii's humpback whales and their habitat.
                            Finally, Sanctuary interpretive staff will conduct outreach activities to make Sanctuary
                     information available to individuals, schools, and organizations throughout the main Hawaiian
                     Islands. These materials will be directed to both those persons who frequently use the Sanctuary
                     and those who are not likely to use the Sanctuary, but who are nonetheless interested in leaming
                     about the HIHWNMS and the NMSP.

                            d. Education and Interpretation Programs

                            Interpretation for the Sanctuary will consist of three distinct programs:

                                    on-site visitor programs for whalewatching vessels, and other recreational marine
                                    users and visitors to the Sanctuary;
                                    visitor center prograrnsfor individuals visiting the Sanctuary headquarters, or other
                                    satellite information centers; and
                                    outreach programs for interested individuals and groups not, visiting the Sanctuary
                                    or its headquarters, but who desire to learn more about the Sanctuary's resources
                                    and qualities.

                                i.  On-Site Visitor Programs

                            On-site education and outreach provided by the HIHWNMS Manager (or education
                     coordinator) will consist primarily of printed materials describing humpback whales and their
                     habitat, and the Sanctuary, management program. These materials will be made available for
                     distribution at local government offices, marine recreation businesses, marinas, whalewatching
                     vessels, humpback whale interpretive centers, tourism information centers, airports; harbors and
                     other local establishments. The program will rely heavily on the cooperation of the tourism,
                     whalewatching and marine recreation industry for 'successful implementation. Many of the
                     commercial whalewatch vessels incorporate the onboard services of a naturalist      'to identify and
                     discuss various species of cetaceans. The Sanctuary will work with these services to incorporate
                     verbal information on the Sanctuary in their interpretive discussions, in addition to brochures or
                     other printed materials which excursion participants may carry home with them.                 Local
                     organizations and businesses, such as the Whale Museum, Pacific Whale Foundation. Save the

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                 Whales, Whales Alive, Hawai'i Wildlife Fund, Earthtrust, Waikiki Aquarium, Sierra Club, and
                 others may also be interested in co-sponsoring special excursions to the Sanctuary.

                             ii. Visitor Center/Headquarters Programs

                         The establishment of a Sanctuary headquarters in the area and the existence of other visitor
                 and information centers throughout Hawaii provide an opportunity to inforra visitors to these sites
                 about humpback whales and their habitat, and the Sanctuary program. Although most visitors and
                 residents use Hawaii's.marine waters for a variety or purposes, many do not fully understand or
                 appreciate the significance of this national resource. Educational exhibits and brochures about the
                 Sanctuary's resources can only help to enhance people's appreciation for the special qualities of
                 this unique marine environment. Exhibits, audio-visual information, and printed materials will be
                 available to the public at the Sanctuary visitor center/headquarters. Additional potential distribution
                 points for Sanctuary brochures and other materials include NMFS's Honolulu Laboratory, Kilauea
                 Point National Wildlife Refuge on Kauai, Kealia Pond NWR in Maui, at variou's national parks in
                 Hawaii, Hanauma Bay MLCD and other aquariums, museums and environmental centers
                 throughout Hawaii.

                             iii. Outreach Programs

                         The Sanctuary educational program will aim to reach groups throughout the Hawaiian
                 Islands and elsewhere who have An interest in Hawaii's marine environment, but who may not.
                 visit or experience the area first-hand. This project entails identifying these groups and making
                 educational materials and presentations available to them.
                         These programs will be carried out in conjunction with similar local programs to provide
                 off-site education. Where possible, the Sanctuary will involve coordinating the cooperative efforts
                 of local and regional environmental education programs and organizations (e.g., Department of
                 Education, DLNR, Waikiki Aquarium, University of Hawaii Sea Grant and Marine Options
                 Programs, environmental organizations, and Native Hawaiian groups). Additionally, Sanctuary
                 staff will make interpretive materials and presentations available to local and regional schools,
                 universities and interested user groups. Materials may include slide presentations and traveling
                 exhibits, curriculum materials and other teacher aids. Opportunities will be assessed for Sanctuary
                 outreach locations in areas of heavy public visitation, such as highway scenic pull-offs, State parks
                 and public docks.

                 E. ADMINISTRATION

                         This section of the management plan describes the administrative roles of the Sanctuary, the
                 SAC and the various agencies that will be involved in Sanctuary management. It also identifies
                 strategies to coordinate their activities, and provides for periodic evaluation of the overall
                 effectiveness of the management plan. Sanctuary management consists of five basic functions:
                 resource protection (including enforcement), research, education, and administration.
                 Administration oversees all other functions and establishes who is responsible for implementing
                 specific programs. The administrative framework ensures that all management activities are
                 coordinated.

                         SRD    will develop a cooperative partnership with the State of Hawaii and NMFS to
                 implement   'components of this Final Management Plan for the Sanctuary. SRD will coordinate its
                 on-site activities through cooperative agreements and/or specific MOUs with existing Federal and
                 State agencies, and non-govemmental organizations, as appropriate. The general administrative
                 roles of each agency are described below and listed in Pan II(E)(3) of this Final EIS/MP.

                 Final Environmental Impact Statement                                                           Page 259
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                     Part V: Sanctuary Management Plan                                           Hawaiian Islands Humpback Whale
                                                                                                         National Marine Sanctuary

                          1. Site Administration

                             The NMSP is administered by SRD. SRD is headquartered in Silver Spring, Maryland,
                     and has on-site Sanctuary staff that are responsible for managing each of the individual sanctuary
                     sites. SRD works with the on-site Sanctuary Manager to develop a site budget and implement
                     program policies on the local level. Funding priorities will be reviewed and adjusted annually to
                     reflect evolving conditions in the HIHWNMS and NMSP priorities and* requirements. SRD also
                     establishes policies and procedures in response to specific issues in each Sanctuary. Detailed SRD
                     responsibilities are fisted under the resource protectionj research, education/interpretation, and
                     general administration sections which follow.
                             Depending on the budget and per@onnel assigned to the HIHV*rNMS, staffing would
                     include a NOAA Sanctuary Manager, an administrative assistant, a research coordinator, an
                     education coordinator, a volunteer coordinator, and one or more interpreter/enforcement positions.
                     Staff will be distributed between the headquarters office in Kihei, Maui, other satellite offices
                     located on other islands, or within other State or Federal agencies. Arrangements may be made
                     between various levels of government agencies and private sector organizations through
                     cooperative agreements or MOUs to provide personnel and/or resources to carry out the duties
                     associated with the coordinator positions. As an example, Sanctuary staff 'Will work closely with
                     NMFS, USCG, and the State of Hawaii, specifically wiih DOH, and DLNR to monitor
                     harassment, discharge and alteration of the' seabed activities in the proposed Sanctuary. The need
                     for additional staffing will be determined during the first two years of Sanctuary operation.

                             The Sanctuary Manager and other field staff for the HIHWNMS manage and operate the
                     site. They report to the Pacific Regional Manager at NOAA-SRD Headquarters in Silver Spring,
                     Maryland. In this capacity, the Manager represents SRD and is the primary spokesperson for the
                     HEHWNMS. The Sanctuary's headquarters is currently located at a NOAA-owned facility in
                     Kihei, Maui. Additional Sanctuary contractors work in Honolulu and kauai. The Sanctuary will
                     continue to assess the need to create other "satellite" offices and information centers on other
                     Hawaiian Islands.

                         2. SanctuwZ@ Advisory Council

                             Under Section 315, (16 U.S.C. �1445a) of the NMSA, the Secretary of Commerce is
                     authorized to establish sanctuary advisory councils (SAC) to provide assistance to the Secretary
                     regarding the designation and management of national marine sanctuaries'. In order to ensure that
                     local concerns are addressed in the ongoing development and management of the Hawaii
                     Sanctuary, SRD established a 25-member SAC in March 1996 (see Figure V- I and Appendix D).
                     The SAC has broad representation and has been instrumental in advising NOAA and the State on
                     matters pertaining to the continued development of the Sanctuary. The SAC represents the
                     coordination link between the Sanctuary and the many State and Federal management agencies,
                     Native Hawaiians, user groups, researchers, educators, policy makers, and others which serve the
                     function of focusing efforts and attention onthe humpback whale and its habitat. In this capacity,
                     the SAC is -a critical part of the Sanctuary's identity and function because it provides a forum by
                     which Sanctuary management issues can be raised and addressed in an ongoing and relatively
                     informal manner, thereby enhancing the efforts of the Sanctuary in managing and protecting
                     humpback whales and their habitat.

                             The SAC functions in an advisory capacity to the Sanctuary Manager and will be
                     instrumental in helping produce annual operating plans and reports by identifying education,
                     outreach, research, long-term monitoring, resource protection and revenue enhancement priorities.
                     The SAC will also play an instrumental role in identifying marine resources and ecosystems of
                     national significance for possible inclusion in the Sanctuary through a process outlined in Part
                     V(c)(3) of the management plan. The SAC works in concert with the Sanctuary Manager by

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                Hawaiian Islands Humpback Whale                                    Part V: Sanctuary Management Plan
                National Marine Sanctuary
                keeping her or him informed about issues of        concern -throughout the Sanctuary, offering
                recommendations on specific issues, and aiding the Mpager iri achieving the goals of the
                Sanctuary program within the context of Hawaii's marine programs and policies. The SAC
                Charter details specific roles and responsibilities of the SAC (Appendix D).

                        In order to function efficiently in an advisory capacity and incorporatd the different
                concerns from all the main Hawaiian Islands, the SAC may appoint subcommittees or working
                groups that correspond to the main Sanctuary management areas of education, research, resource
                protection, regulations/enforcement, revenue enhancement, and others as necessary. Additional
                subcommittees or working groups may be formed to provide reconunendations to the SAC on the
                identification and assessment of other marine resources and ecosystems of national significance for
                possible inclusion into the Sanctuary.

                        Since its establishment, the SAC has met five times to provide advice and recommendations
                to NOAA on the public comments received on the DEIS/MP and on the continued development and
                management of the Sanctuary. The SAC has also elected a Chair, Vice Chair, and Secretary, and
                formed several subcommittees.
                    3. Other Federal Aggncies

                        There are numerous federal agencies that have           significant resource management,
                responsibilities in or near the Sanctuary. The Sanctuary will  seek cooperative partnerships with
                these Federal agencies in order to better facilitate and streamline resource management in the
                Hawaiian Islands. The Sanctuary will also develop, as appropriate, MOUs to clarify and
                streamline coordination roles and permit review processes and other cooperative management
                projects. The Sanctuary -will also seek other Federal agency participation to collectively sponsor
                and promote management related research and education projects. In particular, the Sanctuary will
                continue to work closely with NMFS to ensure more coordinated and coriiprehensive management
                of the humpback whale and its habitat. Other Federal agencies with resource management
                responsibilities include: EPA, USCG, COE, National Park Service,'U.S. Fish and Wildlife
                Service, and DOD.

                    4. State. ReLdonal. and Coun1y Aggncies

                        Much of Hawaii's coastal waters are included within the boundary of.the Sanctuary. SRD
                recognizes the importance of establishing strong partnerships with the many State and county
                agencies that have resource management responsibilities in the Sanctuary. The Sanctuary will
                work closely within the existing administrative framework of State resource management agencies
                such as: the State of Hawaii's OP; DLNR; DOH; DBEDT; DOT; ORA; KIRC; and the individual
                county planning offices. NOAA will also work closely with the Hawaii Coastal Zone Management
                Program (CZMP) to ensure wise management and protection of coastal resources, and to
                coordinate mutual objectives of the CZMP and the Sanctuary.

                Final Environmental Impact Statement                                                       Page 261
                and Management Plan

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                 Hawaiian Islands Humpback Wha le                                    Part V: Sanctuary Management Plan
                 National Marine Sanctuary

                         The Sanctuary has worked in close partnership with OP and consulted with the 50 member
                 SWG and the 25-member SAC, each composed of various Federal, State and county agencies and
                 marine user groups to develop the draft and final environmental impact statement and Sanctuary
                 management plan. SRD will continue this close partnership and look toward establishing other
                 cooperative arrangements with other State and county agencies to ensure a coordinated approach to
                 the coastal and ocean resource management responsibilities of all agencies. This cooperation will
                 involve the formalization of coopera4ve agreements, MOUs and the deputization. of state
                 enforcement officials, as appropriate.

                    5. CoMatible Uses of the Sanctum

                         An important element of the         Hawaii Sanctuary's management program is the
                 encouragement of public uses of the site that are compatible with the overall objective of long-term
                 protection of Sanctuary resources.

                 Sanctuary Goal: Section 2306(a)(1) of the HINMSA specifically calls for theSanctuary to:

                         "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 the protection of the
                         humpback whale and its habitat"

                 Sanctuary Objectives: To meet this goal, and to foster compatible uses, the Sanctuary will
                 initiate the following activities:

                                Develop educational materials and programs aimed at enhancing public awareness
                                and appreciation for the humpback whale and its winter habitat, and for other
                                Sanctuary resources, and demonstrate the need for their protection;
                                provide relevant information about Sanctuary regulations and use policies;
                                exchange information with pertinent agencies and interested user groups on
                                commercial and recreational activities and opportunities occurring within the
                                Sanctuary;
                                collaborate with public and private organizations in encouraging and promoting
                                compatible uses of the Sanctuary;
                                consult with other agencies on proposals and policies for management of activities
                                which may affect Sanctuary resources;
                                work with the Native Hawaiian Community to identify customary and traditional
                                uses of the marine environment and educate the general public about these uses; and
                                monitor and assess the levels of use to identify and control potential degradation of
                                resources, and to minimize potential user conflicts.

                         Anticipated monitoring and information exchange      programs are discussed below under
                 Research (Section III); development of public materials is discussed below under
                 Education/Interpre'tation (Section IV).

                         Section 2306 of the HEWSA 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 gathering 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.

                 Final Environmental Impact Statement                                                         Page 263
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                     Part V: Sanctuary Management Plan                                      Hawaiian Islands Humpback Whale
                                                                                                   National Marine Sanctuary

                             NOAA will work closely with Native Hawaiian interests'to facilitate Native Hawaiian uses
                     of the marine environment customarily and traditionally exercised for subsistence, cultural, and
                     religious purposes consistent with the primary objective of the protection of humpback wh    "ales and
                     theix habitat, SRD recognizes the ongoing efforts of the Native Hawaiian sovereignty 'movement
                     for self-governance, and will continue discussions with Native Hawaiian and State officials'
                     throughout this process to acknowledge and facilitate Native. Hawaiian uses within the Sanctuary,
                     and, initiate efforts to work cooperatively with Native Hawaiian groups to educate other members
                     of the public about their cultural, traditional and historical relationship to Hawaii's marine
                     environment.

                         6. Five Year Review of Management Plan

                             The NMSA requires NOAA to periodically review sanctuary management plans and make
                     changes as necessary. During the five years following implementation of the final management
                     plan, SRD, in cooperation with the State, will conduct research on humpback whales and their
                     habitat, assess the adequacy of Sanctuary regulations, the adequacy of existing authorities in
                     -protecting the humpback whale and its habitat, and the adequacy of the Federal-State partnership in
                     protecting the whale and its habitat. The SAC will be encouraged to establish a working group on
                     resource protection to review existing authorities and monitor the effectiveness of these authorities
                     in protecting the humpback whale and its habitat.

                             By the time of the five-year review of the Management Plan, SRD should also have
                     completed its process to identify other resources of national significance (e.g., other marine species
                     and ecosystems, cultural or historical resources) for possible inclusion in the Sanctuary. Based on
                     these assessments, SRD may revisit and revise the management plan, including the regulations to
                     include other resources into the Sanctuary. Any proposed change@ to the Designation Document
                     (e.g., new regulations or boundary modification) is required to be executed by the same
                     procedures by which the original was developed, including preparing an environmental impact
                     statement, holding at least one public hearing, and providing for gubernatorial review and non-
                     objection to the changes.       Any proposed substantive (those which are not procedural,
                     administrative, technical, or editorial in nature) amendment to the existing Sanctuary regulations
                     will also require public review, and be subject to review, and non-objection by the Governor. - An
                     outline of the five-year management plan review can be found on the following page.

                         7. Spccial Use Permits

                             NOAA is not proposing to implement special use perrhits in the Hawaii Sanctuary. The
                     HIHWNMS regulations contain no requirements for obtaining independent Sanctuary permits or
                     approvals, including special use permits. Special use permits would only be implemented through
                     changing the HIHWNMS regulations to independently prohibit a certain activity unless authorized
                     under a special-use permit. Such a regulatory change, however, would require notice and
                     cornment to the public, and review and non-objection by the Governor of Hawaii.

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                  Hawaiian Islands Humpback Whale                                       Part V: Sanctuary Management Plan
                  National Marine Sanctuary

                                          Review of the Sanct6iry Management Plan

                  Evaluation

                  (1) Not more than five years after the final management plan and regulations become effective, and
                      subsequently not more thanevery consecutive five years thereafter, SRD, 'in consultation with
                      the.Governor of Hawaii, shall evaluate the progress made toward implementing the
                      management plan, regulations, and goals for the Sanctuary.

                  (2) In evaluating the management plan, regulations, and goals for the Sanctuary, SRD, in
                      consultation with the Governor, shall specifically address the foll'owmig issues:

                      0   Sanctuary resource. protection measures, including Sanctuary regulations and enforcement;
                      0   The effectiveness of the Sanctuary boundary in achieving the purposes of the HINMSA
                          and NMSA, and in meeting ongoing State resource management concerns;
                      0   Sanctuary education,information, and outreach program;
                      *   Sanctuary research and long-term monitoring program;
                      0   Sanctuary coordination and cooperation with other FederaL State, and county agencies;
                      0   Native Hawaiian uses of the Sanctuary;
                      *   Public involvement in Sanctuary management;
                          Positive and negative socio-economic impacts on marine users, including, but not limited to
                          the following industries, groups, and/or organizations: commercial and recreational
                          fishing, shipping and. transportation, ocean recreation, whale watching, tourism, education,
                          research, and conservation; and
                          The effectiveness of the Sanctuary in facilitating all public and private uses of the Sanctuary
                          consistent with the primary objective of the protection of humpback whales and their
                          Sanctuary habitat.

                  Results of Evaluation

                  (1) Theresults of the evaluation shall be used by SRD, in consultation with the Governor, to
                      determine whether changes to the management plan and/or regulations are necessary, and to
                      revise the management plan. and/or regulations accordingly.
                  (2) NOAAISRD shall submit the final revised management plan and regulations for the Sanctuary.
                      to the Committee on Commerce, Science and Transportation of the Senate and to the
                      Committee on Resources of the House of Representatives.

                  Gubernatorial Review of Modifications to the Designation Document or Existing Regulations

                  (1) Any. Proposed change to the Designation Document (e.g.,; new regulations or boundary
                      modification) is required to be executed by the same procedures by which the original was
                      developed, including preparing an environmental impact statement, holding at least one public
                      hearing, and providing for gubernatorial review and non-objection to the changes. Any
                      proposed substantive (those which are not procedural, administrative, technical, or editorial in
                      nature) amendment tp the existing Sanctuary regulations    will also require public review, and be
                      subject to review and non-objection by the Governor.

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                     Part V: Sanctuary -Management Plan                                    Hawaiian Islands Humpback Whale
                                                                                                  National Marine Sanctuary

                         8. Resource PrQtection: Roles and Responsibilities

                             a. SRD

                                     Approves priorities for funding for resource protection and monitors and maintains
                                     a record of research activitie@ within the sanctuary;  I
                                     Monitors the effectiveness of interagency agreements for surveillance and
                                     enforcement and negotiates changes where required;
                                     Develops contingency and emergency-response plans and based on -these plans,
                                     negotiates applicable interagency agreements;
                                  0  Monitors the effectiveness of existing Sanctuary regulations and promulgates
                                     changes, in conjunction with the State, where necessary;
                                  0  Coordinates efforts to protect and manage Sanctuary resources with other Federal,
                                     State, and county agencies, and with public and private organizations; and
                                     Ensures, involvement of commercial and recreational marine interests in Sanctuary
                                     resource protection issues, through their participation on the SAC and by other
                                     appropriate means.

                             b. Sanctuary Manager

                                  0  Develops priorities for the allocation of funds annually to support resource
                                     protection efforts, considering the advice of the SAC and relevant groups to ensure
                                     consistency with'the Sanctuary Management Plan;
                                  0  Coordinates regularly with commercial and recreational marine users,        primarily
                                     through the SAC, on resource protection issues affecting these users;
                                     Assists, in the conjunction with the designated Sanctuary enforcement officer, the
                                     coordination of surveillance and enforcement activities by providing liaison with the
                                     Federal, State, regional and county agencies; .. -
                                     Reports regularly to the SRD on surveillance and enforcement activities, and
                                     emergencies;
                                  0  Provides information for use in training Sanctuary enforcement officials;
                                  a  Monitors and evaluates the adequacy of emergency-response plans and procedures
                                     in the Sanctuary;
                                  0  Maintains -a record of emergency events (e.g., oil spills) in and 'around the
                                     Sanctuary;
                                  0  Evaluates overall progress toward- the resource protection objectives of the'
                                     Sanctuary program and prepares semi-annual and bi-monthly progress            reports
                                     highlighting activities for the SRD; and ,
                                  0  Coordinates with existing Federal, State, and county groups such as the Marine and
                                     Coastal Zone Management Advisory Group (MACZMAG) or DLNR groups.

                     -Page 266-
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                Hawaiian Islands Humpback Whale                                    Part V: Sanctuary Management Plan
                National Marine Sanctuary

                       c. Sanctuary Advisory Council

                                Advises the Sanctuary Manager on the effectiveness of interagency agreements for
                                surveillance and enforcement;
                                Advises the Sanctuary Manager on the effectiveness of the Sanctuary regulations in
                                providing adequate resource protection;
                                Recommends improved methods of resource protection; and
                                Establishes working groups and/or subconurnittees on such topics as research,
                                education, resource protection, enforcement, or as needed, to provide technical
                                advice and recommendations.

                       d. Federal Agencies

                            �   NMFS implements the M?VIPA, provisions of the ESA and participates in
                                consultation, as required under the Fish and Wildlife Coordination Act. NMFS
                                works closely with DLNR-Division'of Aquatic Resources, under the Magnuson
                                Fishery Conservation and Management Act (MFCMA), on approving and enforcing
                                Fishery Management Plans (FMPs) prepared by WESPAC to ensure protection of
                                fishery resources;
                            �   USCG holds broad responsibility for enforcing all Federal laws throughout the
                                Sanctuary, including coordination with NUFS on enforcement of Fishery
                                Management Plans. USCG also provides on-scene coordination and Regional
                                Response Center facilities under the National Contingency Plan for the removal of
                                oil and hazardous substances in the event of a spill that, threatens Sanctuary
                                resources;
                            �   EPA implements regulatory responsibilities regarding sewage outfalls (Clean Water
                                Act, via the NPDES permits); and ocean dumping (Title I of the MPRSA] to protect
                                water quality. EPA has delegated NPDES permitting responsibilities to DOH;
                            �   COE grants, based on EPA guidelines, permits for disposal of -dredged materials at
                                EPA-designated disposal sites, and monitors the effects of disposal activities. The
                                COE also grants permits (under the Rivers and Harbors Act) for marine
                                construction, excavation or fill activities in any navigable waters of the U.S. 'Me
                                COE may refuse to issue permits on the basis of threats to navigation or potential
                                adverse effects on the environment; and
                            �   Minerals Management Service leases and permits (under the Outer Continental Shelf
                                Lands Act) marine mining activities for resources other than hydrocarbon
                                resources, subject to safety and environmental regulations.

                        e.  State, Regional, and County Agencies

                                OP provides oversight for individual county planning efforts and for statewide
                                initiatives. OP also oversees the implementation of the Hawaii CZNW by
                                coordinating the planning, policy development, and' implementation activities of
                                other State agencies and county governments; is developing and implementing the
                                �6217 Coastal Non-Point Source Pollution Control Program; and in certain
                                geographic areas, issues permits for the protection of coastal resources and the
                                management of orderly economic development throughout the coastal zone. In
                                addition, the 1995 Hawaii Legislature gave OP a new responsibility for
                                coordinating and implementing the 1991 Ocean Resources Management Plan.
                                DLNR is responsible for managing living and historic resources (such as fisheries
                                and historic sites), and protected areas such as State parks, Marine Life
                                Conservation Districts, Natural Areas Reserves, and State forests. DLNR has
                                jurisdiction over all state owned lands and submerged lands and has adopted
                                regulations for the protection and use of public trust, lands and. resources in the

                Final Environmental Impact Statement                                                       Page 267
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                    Part V: Sanctuary Management Plan                                      Hawaiian Islands Humpback Whale
                                                                                                  National Marine Sanctuary

                                    coastal zone. DLNR-DOCARE officers are deputized to enforce all state laws and
                                    specific Federal laws throughout the sanctuary (e.g., MMPA, ESA, MPRSA);
                                    The State Historic Preservatio   -n Office, within DLNR, is the State agency
                                    responsible for the preservation of representative and unique archaeological,
                                    paleontological, and historical sites in the land andwater areas of the state;
                                    DBEDT oversees ocean industry and recreation development and is, in part,
                                    responsible for ocean energy resources development and management;
                                    DOH:
                                    a)  regulates and monitors water quality for all nearshore coastal waters under state
                                        jurisdiction. DOH is also working with CZMP to develop and implement the
                                        statewide Coastal Non-Point Pollution Control Program;
                                    b)  is charged with the maintenance and enhancement of the ambient air quality of
                                        the State. DOH has set air quality. standards designed to meet National Ambient
                                        Air Quality Standards; and
                                    c)  the Office of Hazard Evaluation and Emergency Response provides on-scene
                                        coordination of State clean-up response in the event of an accidental oil spill or
                                        hazardous materials which threaten the State's fish and wildlife resources.
                                    'DOT oversees commercial and recreational ports and harbors, and boating activity
                                    in Hawaii.
                                    The Department of Agriculture (DOA) is responsible for controlling non-indigenous
                                    species importation, and implementin                              pollution programs
                                                                          g various non-point source
                                    in Hawaii;
                                    OHA is responsible for overseeing Native Hawaiian issues and administering
                                    programs;
                                    KIRC oversees the restoration and management of the Island of Kahoolawe and its
                                    waters out to two nautical miles;
                                    -OP, DLNR, DOH, DOA, DOT. and the Office of Environmental Quality Control
                                    monitor the effectiveness of State regulations within the Sanctuary and consider
                                    recommended changes to the State regulations through the State Legislature -and the
                                    Governor's Office; and
                                    The individual counties are responsible for creating and implementing county wide
                                    land use and recreation plans; implementing the CZMP, specifically the Special
                                    Management Area permits for development activities; implementing erosion and
                                    sedimentation programs; and operating municipal sewage treatment facilities.

                        9. Research: Roles and Responsibilities

                            a. SRD

                                0   Reviews and approves annual SRPs and budgets prepared by the Sanctuary
                                    Manager for research activities in each Sanctuary based upon the purposes and
                                    goals of the National Research Plan (NRP);
                                0   Sets dates for contracts and procurements 'based on the SRP and the NRP;
                                9   Administers interagency agreements and contracts for research;
                                0   Reviews all interim and final research reports submitted by the Sanctuary Manager
                                    and permitted researchers/contractors; and
                                0   SRD and NMFS have developed a MOU to streamline the review and issuance of
                                    pennits issued under the MMPA and ESA for activities that affect the Sanctuary.
                                    SRD and NMFS use the existing permit process to satisfy requirements for both
                                    programs.

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               Hawaiian Islands Humpback Whale                                    Part V: Sanctuary Management Plan
               National Marine Sanctuary

                       b. Sanctuary Manager or Research Coordinator

                       With assistance from the SAC's Research Working Group and the -Pacific Coast Regional
               Scientific Review Group (established pursuant to the 1994 - MMPA reauthorization)    the Sanctuary
               Manager will:

                               Recommend areas of research to resolve management -issues and prepares Request
                               for Proposals (RFP's);
                               Develop and implement the SRP;
                               Review research documents and progress reports submitted       by researchers and
                               contractors;
                               Prepare assessments of research needs and priorities based on management
                               requirements and research continuity;
                               Provide recommendations to SRD for the annual research component of the overall
                               Sanctuary Budget;
                               Implements the SRP;
                               Coordinates research and monitoring activities in the Sanctuary in cooperation with
                               the SRD and other interested agencies or parties;
                               Coordinates an on-site process for reviewing and evaluating research proposals, and
                               permit requests, considering the views of the SRD and concerned individuals and
                               interest groups;
                               Submits to NMFS suggested recommendations and conditions on permit
                               applications and requests for authorizations under the MMPA or ESA; and
                               Coordinates Sanctuary-sponsored research in the Sanctuary.

                       c.   Sanctuary Advisory Council (Research Working Group)

                            0  Advises the Sanctuary Manager on review of research proposals, interim, and final
                               reports; and
                            0  Advises the Research Coordinator and the Sanctuary Manager on priority research
                               needs.

                   10. Education/Interpretation: Roles and Responsibilities

                       a.   SRD

                            0  Reviews and approves the list of annual priorities for education and the annual
                               education budget prepared by the Sanctuary Manager;
                            0  Reviews and approves design proposals* for all educational facilities;
                            *  Reviews all educational/ interpretive materials prepared for the Sanctuary; and
                            0  Evaluates progress toward accomplishing objectives for education/interpretation,
                               and adjusts long- term priorities accordingly.

                       b .  Sanctuary Manager or Education Coordinator

                       With assistance from the SAC's Education Working Group, the Sanctuary Manager will:

                            0  Recommend annually to SRD a list of priorities and an annual budget for education;
                            0  Prepare and circulate as required Requests for Proposals (RFPs) for
                               educational/interpretive projects;
                            0  Supervise the design and production of educationalt interpretive materials and
                               facilities for the Sanctuary;
                            0  Make available training for educational staff assigned to the Sanctuary-,
                            0  Encourage local and regional organizations to participate in San c'tuary education;

               Final Environmental Impact Statement                                                       Page 269
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                  Part V: Sanctuary Management Plan                                      Hawaiian Islands Humpback Whale
                                                                                                National Marine Sanctuary

                              0   Disseminate information about the NMSP and the Sanctuary;
                              0   Oversee the development'of any facilities constructed for the Sanctuary, review site
                                  analyses and design specifications, make recommendations as to construction and
                                  maintenance contracts, and perform similar tasks;
                              0   Coordinate Sanctuary-sponsored educational/ interpretive activities; and
                              0   Establish quality product standards for in-house and contracted educational
                                  products..

                          c.  Sanctuary Advisory Council (Education Working Group)

                              0   Advises the Sanctuary Manager in efforts to raise public awareness'of the Sanctuary,
                                  and advises on the development of an informed local constituency by means of
                                  brochures, presentations, structured events, articles for publication, and other
                                  @ctivities consistent with the management plan; and
                              0   Advises the. Education Coordinator and the Sanctuary Manager on priority
                                  education and*outreach needs;

                      11. Site Administration: Roles and Responsibilities

                          a. SRD

                              0   Ensures,that the Sanctuary is operated in a manner consistent        with established
                                  National Program policies and with applicable national and international laws, and
                                  provides guidance to the Sanctuary Manager and the SAC;
                              0   Identifies, analyzes, and -resolves major Sanctuary management problems and
                                  issues that have National Program implications;
                              a   Formulates comprehensive, long-term management plans for the Sanctuary and
                                  revises the Management Plan as necessary;
                              0   Directs and assists the Sanctuary Manager in the implementation of the Management
                                  Plan;
                              *   'Coordinates Sanctuary management with other Federal and. State agencies and
                                  private organizations;
                              0   Evaluates the'effectiveness of Sanctuary management and regulatory measures;
                              0   Prepares a program budget for the Sanctuary based upon recommendations from
                                  the Sanctuary Manager,
                              0   Provides funding for overall Sanctuary management and administration; and
                              0   Makes recommendations to the Director of the OCRM as to the actions the agency
                                  may need to. take in regards to controversial projects that could impact or injure
                                  .Sanctuary resources.

                          b. Sanctuary Manager

                                  Coordinates on-site efforts of all parties involved in Sanctuary activities, including
                                  State, Federal, and county agencies, and the public;
                                  Reviews the management plan periodically and recommends, changes to SRD as
                                  needed;
                                  Prepaies site budget @for submission to SRD. for approval and funding;
                                  Oversees day-to-day operation of the Sanctuary, including administrative functions
                                  such as bookkeeping, purchasing, and keeping records of visitor activit  'ies;
                                  Supervises Sanctuary staff and other personnel, 'including education, research, and
                                  enforcement employees assigned to the Sanctuary;
                              0   Represents the Sanctuary viewpoint on local issues and at public forums; and
                              0   Consults and works within the permit review processes of other agencies to ensure
                                  humpback whale and habitat concerns are considered.

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                 Hawaiian Islands Humpback Whale                                    Part V: Sanctuary Management Plan
                 National Marine Sanctuary

                         c. Sanctuary Advisor@ Council
                             0  Advises on the specific plans for Sanctuary development;
                             0  Advises on proposals for activities within the Sanctuary;
                             0  Advises on an overall plan for the use, development and maintenance of Sanctuary
                                lands and facilities; and
                             0  Advises the Sanctuary Manager on projects and activities that may impact Sanctuary
                                resources.
                             0  Advises the Sanctuary Manager on actions that should be taken to improve effective
                                management of the resources.

                         d. Federal, State, and County Agencies

                             0 Assists in the preparation and implementation of a comprehensive, long-term
                                management plan for the Sanctuary;
                             0 Assists in the periodic review of the management plan; and
                             -  Appropriate permit issuing agency considers Sanctuary comments and
                                recommendations on projects. that may impact Sanctuary resources.

                 F. REVENUE AND RESOURCE ENHANCEMENT

                         Section 2306 (a)(4) of the HINMSA requires that the Sanctuary Management Plan "identify
                 alternative sources of funding needed to My implement the plan's provisions and supplement
                 appropriations under Sec  *tion 2307 of the Act." Section 311 of the NMSA provides several
                 mechanisms for the Sanctuary to utilize alternative voluntary sources of funding to work with other
                 government agencies and non-profit organizations to implement the Management Plan's provisions
                 [NMSA � 1422(a)-(d)]. These include:

                     �   NOAA may enter into cooperative agreements, financial agreements, grants, contracts, or
                         other agreements with States, county governments, regional agencies, interstate agencies,
                         or other persons to carry out the purposes and policies of the HINMSA and NMSA.
                     �   NOAA may enter into such agreements with any nonprofit organization authorizing the
                         organization to solicit private donations to carry out the purposes and policies of the
                         HINMSA and NMSA.
                         NOAA may accept donations of funds, property, and, services for use in designating and
                         administering national marine sanctuaries. Donations accepted under this section shall be
                         considered as a gift or bequest to or for the use of the United States.
                         NOAA may acquire by purchase, lease, or exchange, any land, facilities, or other property
                         necessary and appropriate to carry out the purposes and policies of this title.

                         Revenue enhancement in terms of Sanctuary management means supplementing baseline
                 funding levels for the purpose of conserving and managing Sanctuary resources.              Revenue
                 enhancement may include, but is not limited to: the creation of partnerships with government
                 and/or private-sector organizations; support though foundations; donations of property or funds;
                 product marketing; corporate sponsorships; volunteer user fees; internships; volunteer
                 opportunities; and other innovative fundraising initiatives. The Sanctuary recognizes significant
                 public opposition to. mandatory userfees and is not proposing mandatory broad-based user fees to
                 supplement baseline funding. This is consistent with the recommendations of a "Marine Sanctuary
                 User Fee Workshop" held in, Monterey, CA during November, 14-16, 1.994, which reaffirmed
                 support for the Sanctuary Program, but called for the immediate abandonment of using mandatory
                 user fees to supplement program funding. ' Further, the 1996 reauthorization of the NMSA
                 provides a statutory provision against mandatory user fees for any activity within or use of the

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                     Part V: Sanctuary Management Plan                                      Hawaiian Islands Humpback Whale
                                                                                                   National Marine Sanctuary

                     Sanctuary. Public involvement will play an essential role in planning and implementing any
                     r6enue enhancement efforts.

                             The NMSP will continue to pursue revenue@ enhancement measures for individual sites and
                     the national program. The NMSP faces the huge challenge of protecting and managing some of the
                     nation's most cherished coastal and marine resources. This effort does not come without costs,
                     and in today's challenging budget.times, the Program must consider every available funding
                     option. NOAA will work with the local community to develop and implement creative measures to
                     supplement the NMSP's base funding levels. NOAA believes that sanctuary users appreciate the
                     practical need for increased funding to better manage and protect Sanctuary resources.

                             Another example of a revenue enhancement measure is the National Marine Sanctuary Logo
                     Pilot Project. In 1992, Congress directed the Sanctuary Program to enhance funding for the
                     designation and management of National Marine Sanctuaries through a pilot prcject consisting of
                     the creation, adoption, and marketing of a logo. Section 2204 of the NMSA directed the Sanctuary
                     Pro-gram. to solicit and designate official sponsors of the Program or of individual sanctuaries.
                     These sponsors would    'be authorized to manufacture, reproduce, or use the logo. A national
                     design and selection process resulted in the official approval of the whale's tail logo pictured
                     below. This logo was published in the Federal Register on March 28, 1995. The Sanctuary
                     Program has Congressional authorization to sell "rights" or uses of the logo and retain the funds to
                     enhance and manage National Marine Sanctuaries. In the 1996 reauthorization of the NMSP, the
                     logo program was made a permanent provision of the NMSA.

                                                         NATIONAL MARINE
                                                             SANCTUARI ES

                             It is anticipated that identifying and using alternative sources of funding will be a
                     continuing activity, to meet and support the stated purposes of the management plan rsee A(2)(a) of
                     the MP, "Purposes of the Management Plan"]. The Sanctuary will work cooperatively with the
                     State of Hawaii,. the SAC, and interested organizations and individuals to identify and establish
                     innovative and creative solutions to enhance funding for Sanctuary programs. The HIHWNMS
                     wiUl seek opportunities to develop cooperative agreements and partnerships with goverriment
                     agencies and the private-sector; establish or work with existing non-profit organizations to help. the
                     Sanctuary carry out the programs and purposes of the Sanctuary; and continue efforts to initiate
                     other forms of revenue enhancement and program support measures. For example, the Hawaii
                     Sanctuary has already developed numerous partnerships with other government and private sector
                     organizations. Such partnerships have included the cooperative public/private venture to develop
                     the "Watching Hawaii's Humpback Whales" brochure; the development of a pocket humpback
                     whale information/approach regulation, guide; cooperatively developed education displays and
                     materials with other organizations and museums; and the acquisition of Federal property in Kihei
                     for the Maui Sanctuary office. Opportunities to creatively enhance baseline revenues and staff
                     resources without mandatory fees are abundant.

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                 Hawaiian Islands Humpback Whale                                             Part VI: List of Preparers
                 National Marine Sanctuary

                                              PART VI:      UST OF PREPARERS

                 Final Environmental Impact Statement and Managgment Plan (FEIS/MP):

                 Mr. Brady Phillips: Program Specialist, Sanctuaries and Reserves Division (SRD). Mr.
                 Phillips was responsible for compilation of the Final EIS/MP, including writing, editing, policy
                 development and analysis, and assembling the individual components.     .He also was the primary
                 coordinator for the Draft EIS/MP team. He has worked on, the development of the Hawaii
                 Sanctuary since February 1993. He also is the SRD headquarters contact for the Fagatele Bay
                 NMS in American. Samoa, and has expefience in helping develop an island-wide resource
                 management program in Kosrae, Federated States of Micronesia. He has a B.S. in Zoology and
                 Environmental Studies from the University of Wisconsin-Madison, and a M.S. in Marine
                 Resource Management from Oregon State University.

                 Mr. Brian Burnett. Consultant, SRD. Mr. Burnett assisted Mr. Phillips in compiling the Final
                 EIS/MP, including policy analysis, writing, editing, formatting, and assembling components, as
                 well as. coordinating the internal review/clearance process. He has worked on the development of
                 the Hawaii Sanctuary since its Congressional -designation in November 1992, though the majority
                 of that time was spent working for the Hawaii Office of State Planning (OSP). As part of OSP, he
                 was one of the lead State contacts throughout the development of the Draft EIS/MP and the initial
                 stages of the Final EIS/MP. His B.A. is a double major. in Political Science and Economics from
                 the University of Hawaii at Manoa.

                 Ms. Nina Garfleld: Program Specialist, SRD. Ms. Garfield was responsible for reorganizing
                 Part I of the Draft EIS/MP for the Final EIS/MP. She also assisted in the writing, editing, and
                 final policy analysis of various aspects of the document. She has a B.A. in, Sociology and
                 Psychology from Kalamazoo College in Kalamazoo, Michigan, a M.S. in Marine Affairs from the
                 University of Rhode Island, and course work in Chemistry and Physics at the University of
                 Pittsburgh, and Mariculture at the Marine Biological Laboratory in Woods Hole, Massachusetts.
                 Ms. Naomi McIntosh: Consultant, SRD. Ms. McIntosh wrote and updated significant
                 portions of Part H, as well as provided guidance on policy issues. She has worked with SRD
                 since March 1994. As the Oahu contact, she interacts closely with other agencies, user groups,
                 and the public to provide information about the Hawaii Sanctuary and to raise awareness on the
                 importance of protecting humpback whales and theirhabitat. She has previously worked at the
                 Kewalo Basin Marine Mammal Laboratory and the Naval Ocean Systems Center. She has a B.A.
                 in Psychology from the University of Hawaii and a Certificate of Completion.in Environmental
                 Studies also from the University of Hawaii.

                 Mr. Allen Tom: On-site Program Specialist and liaison. Mr. Tom is responsible for
                 coordinating daily activities of the Hawaii Sanctuary including the other Sanctuary contractors on
                 Oahu, Kauai and.Maui. Mr. Tom assisted in developing the FEIS/MP by coordinating public
                 outreach and awareness efforts, response to public comments, on-site policy development, the
                 Sanctuary Advisory Council, and other State and Federal government agencies. He has a B.S. in
                 Biology from the University of California, Davis and a M.S,. in Animal Science (Aquacul=e)
                 from the University of Hawaii.

                 Draft EISIMP.

                 Mr. Ben Mieremet: International Affairs Specialist, Policy Coordination Division in the Office
                 of Ocean and Coastal Resource Management. Mr. Mieremet had co-lead responsibility for the
                 preparation of the Draft EIS/MP. He is the principal author of 12 previous EISs, numerous

                 Final Environmental Impact Statement                                                      Page 273
                 and Management Plan

                    Part VI: List of Preparers                                           Hawaiian Islands Humpback Whale
                                                                                                 National Marine Sanctuary

                    environmental assessments on coastal related issues, and 20 years experience in coastal zone
                    management. He hasa B.S. in Conservation and Resource Development from the University of
                    Mai-yland, a M.A. in Water Resources M   'anagement from the University of Michigan, and a M.A.
                    in International Relations from Salve Regina College in Rhode Island.

                    Ms. Janice Sessing: Formerly the Hawaii On-site Program Specialist, SRD. Ms. Sessing
                    shai.-ed responsibility for the preparation of the Management Plan (Part V) and obtained input from
                    Federal, State, and local agencies, interested public, and Sanctuary user groups used to develop
                    management alternatives. Ms. Sessing has represented NOAA at the domestic and international
                    level on various marine .and environmental topics. Her B.S. is a double major in Marine Science
                    and Biology, with a Chernistry minor from the University of Miami, Florida and a M.S. from the
                    University of Hawaii at Manoa.

                    Ms. Sherrard Foster: Program Specialist, SRD. Ms. Foster shared responsibility for the
                    preparation of the Management Plan (Part V) and for coordinating the intemal. Draft EIS/MP
                    review/clearance processes. She holds a B.A. in English, with a minor in Biology, . from
                    Lynchburg College, Lynchburg, Virginia. 'Before joining SRD in 1984, she served as Director of
                    Marine Issues, Defenders of Wildlife, Inc@, Washington, D.C.

                    Mr. David Kennard: Economic Development Planner               with experience as a consultant on
                    environmental and economic development issues in the Pacific. Assisted the drafting team through
                    the Pacific Basin Development Council to provide much of the socio.-econornic data found in Part

                    Dr. Michael Hantnett. Senior Policy Analyst with the Pacific Basin Development Council has
                    25 years of policy research, technical assistance, and training experience in the Pacific island
                    region. Among his many experiences, he was a member of the planning team that drafted the
                    Hawaii Ocean Resources Management Plan during 1989-90. He provided                 information on
                    Hawaii's State authorities described in Part 11.

                                                          AcKNOWLEDGMENTS

                    Mahalo Nui Loa to all the numerous persons who contributed their time, patience, and expertise to
                    hell) complete various portions of this Final EIS/MP- and of the Draft EIS/MP before it:

                    NOAA-SRD (Hawaii): Special thanks go to the Hawaii Sanctuary on-site staff --           Ms.    Carol
                    Carey, Ms. Jean Nishida Souza, Ms. Tori Cullins, Ms. Kellese Araki, and all            the, Hawaii
                    Sanctuary volunteers in Maui -- for their invaluable input and encouragement. Finally, mahalo to.
                    the Hawaii Sanctuary Advisory Council for assisting SRD in developing responses to comments
                    received on the Draft EIS/MP.

                    NOAA-SRD (Silver Spring): Mr. Jim Lawless, who was instrumental in guiding the project along
                    as Acting Division Chief and who served as hearings officer during the public hearings on the
                    Draft EIS/MP. Ms. Debra Malek and Ms. Nina Mollet, for extensive policy development and
                    editing assignments. - Also, mahalo to everyone at SRD who helped develop various management
                    'alternatives for the'site. Many thanks also go out to Ms. Jacqueline Rousseau, Mr. Ralph Lopez,
                    Mr. Steve Olson, and Mr. Christopher Evans who initially worked on the development of this
                    Sanctuary.
                    NOAA-Office of General Counsel: This document has greatly benefited from the continual input
                    and advice of Mr. Michael Weiss. Also, the assistance of the rest of NOAA's Office of General
                    Counsel (GCOS, GCEL, GCF, GCNR, and GCSW), especially that.of Ms. Margo Jackson and
                    .Mr. Roger Eckert, in the preparation of portions of the Management Plan and Implementing

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                                                                                                    -and Management Plan

                 Hawaiian Islands Humpback Whale                                                     Part VI: List of Preparers
                 National Marine Sanctuary

                 Regulations and the review. of both the Draft and the Final EIS/Mp is gratefully acknowledged.

                 NOAA-National Marine Fisheries Service: Mahalo to Mr. Gene Nitta, Mr. Jim McCallum, Mr.
                 John Naughton, Mr. Michael Payne, Ms. Margaret Lorenz, and Ms. Carol Fairfield who have all
                 greatly contributed to the development of this Sanctuary.

                 ,Hawaii Office of PlanaLn?,; The assistance and policy recommendations of Mr. Richard Poirier
                 and Mr. Rick Egged were invaluable and contributed greatly to completion of this' document.
                 Many thanks also go to Ms. Ivy Kawakamii'for her diligent assistance with geographic information
                 system'work.

                 Much of the technical information presented in Part U was prepared in "A Site Characterization
                 Study for the Hawaiian Islands Humpback Whale National Marine Sanctuary," March 1994 which
                 was developed under contract to SRD. We gratefully acknowledge the scholarly contributions of
                 Ms. Kathleen Aki, Dr. Richard Brock, Ms. Jacqueline Miller, Dr. Joseph R. Mobley, Jr., Mr.
                 Peter J. Rappa, Mr. David Tarnas, and Ms. Michelle Yuen.

                 In addition, Mr. Steven Quarterman, Mr. David Konisky, Ms. Liz Specs, Ms. Karen Brubeck and
                 Ms. Liz Perkinson greatly contributed to the completion and editing of the Draft and Final
                 EIS/MP.

                 Final Environmental Impact Statement                                                                Page 275
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                      Pan: VI: List of Preparers                                                   Hawaiian Islands Humpback Whale
                                                                                                           National Marine Sanctuary

                                                  TFUS PAGE UVrENTIONALLY LEFT'BLANK'

                      Page 276
                                                                                               Final Environmental Impact Statement
                                                                                                               and Management Plan

                   Hawaiian Islands Humpback Whale                                       Part VII: List of Agencies and Organizations
                   National Marine Sanctuary                                                 Receiving Copies of the Final EIS/MP

                       PART NII: LIST OF AGENCIES AND ORGANIZATIONS RECEIVI-NG
                                                   COPIES OF THE FINAL EISIMP

                   FEDERAL AGENCIES                                            HAWAII STATE GovERNMENT
                                                                               AGENCIFS
                   Advisory Council on Historic Preservation
                   Council on Environmental Quality                            Commission on Employment
                   Department of Agriculture                                   Department of Agriculture
                   Department of Commerce                                      Department of Business, Economic, Development and
                       National Marine Fisheries Service -                     Tourism
                       Office of Enforcement                                   Department of Defense
                       Office of Protected Species                             Department of Education
                       .Southwest Regional Office                              Department of Land and Natural Resources
                       Pacific Area Office                                       - Division of Aquatic Resources
                       National Marine Mammal Laboratory                            -Aquaculture Development Program
                   Department of Defense                                         - Division of Conservation and Resources
                     -Adjunct General Office                                        Enforcement
                     - Department of theAir Force                                   -Division of Parks
                     o Department of the Army                                  Department of Health
                     - Department of the Army/Corps of                         Department of Public Safety
                       Engineers                                                 -Marine Patrol
                       Department of the Navy/Marines                          Department of Transportation
                     -Pacific Missile Range Facility - Kauai                   Kahoolawe Island Reserve Commission
                   Department of the Interior                                  Office of the Attorney General
                     - Fish and Wildlife Service                               Office of Environmental Quality
                       -Kealia Fishpond NWR                                    Office of the Governor
                        Kilauea Pt. NWR                                        Office of Hawaiian Affairs
                     - National Park Service                                   Office of the Lt. Governor
                       -Haleakala National Park                                Office of Planning
                        Volcanoes National Park                                     Coastal Zone Management Program.
                   Department of State,                                        State Public Library - Hawaii
                   Department of Transportation                                Universky of Hawaii
                     - U.S. Coast Guard                                                  -Center for Hawaiian Studies
                   Environmental Protection Agency                                       *Environmental Center
                   -Region 9                                                             -Research Corporation of Hawaii
                   -Pacific Regional Office                                              -Hamilton Library Collection
                   Federal Emergency Management Agency                                   -Leeward Community College
                   Marine Mammal Commission                                              -Kauai Community College
                   Western.Pacific Regional Fishery                                      0Maui Community College
                   Management Council                                                    -UH Hilo Library
                                                                                         -Marine Options Program
                   CONGRESSIONAL,                                                        -Seawords Editor
                                                                                         -School of Public   Health
                   Honorable Daniel K. Akaka, U.S. Senate                                -Hawaii- Ag. Research Center
                   Honorable Daniel K. Inouye, U.S..Senate                               -Sea. Grant Extension / Communication
                   Honorable Neil Abercrombie, U.S. House of                             -Richardson Law School
                     Representatives
                   Honorable Patsy T. Mink, U.S. House of                      HAWAII COUNTY GOVERNMENT
                     Representatives                                           AGENCIES
                   Honorable Diane Fienstien                                   Mayor's Offices (Kauai, Oahu, Maui.
                                                                               Hawaii)
                                                                               City and County of Honolulu Planning Office

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                     Part VII: List of Agencies and Organizations                        Hawaiian Islands Humpback Whale
                     Receiving Copies of the Final EIS/MP                                       National Marine Sanctuary

                            -Wastewater Department                       Moss Landing Marine Labs
                     County of Hawaii P 'lanning Office                  National Association of Conservation Districts
                     County of Kauai Planning Office                     National Association of Counties
                     County of Maui Planning Office                      National Audubon Society
                     Representative Nestor Garcia                        National Federation of Fishermen
                     Representative Ken Hiraki                           -National Fisheries Institute
                     Representative Calvin Kawamoto                      National Oceans Industries Association
                     Represenatative Alex Santiago                       National Parks and Conservation Association
                     Representative David Tamas .                        National Recreation and Park Association
                     Representative Cynthia Theilen                      National Research Council
                     Senator Rossalyn Baker                              National Wildlife Federation
                     Councilmember Duke Bainum                           Natural History Museum - Los Angeles
                     Councilmember Steve Holmes                          Natural Research Council'
                     Councilmember James Arakaki                         Natural Resources Def6nse Council
                     Councilmember Patrick Kawano                        New York Department of Education
                     Councilmember Alice Lee                             Ocean Advocates .
                     Councilmember Wayne Nishiki                         The Oceanic Society
                     Councilmember Sol Kaho'ohalahala                    P & W. Software ,
                     Councilmernber Al'Smith                             'Reef Keeper - Florida
                     Councilmernber Lloyd Can De Car                     The Rhett Company
                                                                         SAI 'C Maritime Center
                     bLi@TIQNAL INTEUEST GROUPS                          San Jose State. University - Department of Geography
                                                                         Save Our Reefs
                     Albright College - Biology                          Save Our Shores
                     Arnerican Cetacean Society                          Scripps Institution
                     American Fisheries Society                          Sunset Magazine
                     American Protection of the Cruelty to Animals       Teledyne Brown Engineering
                     American Oceans Campaign                            United Nations Environmental Programs -
                     Boating Industry Association                        Nairobi
                     Cascadia Research Collective                        University of California - Berkeley
                     Center for Action Endangered Species                University of California - Los Angeles
                     Center for Law and Social Policy                    University of Texas - Marine Mammal
                     Center for Marine Conservation                      Program
                     Center of Whale Research                            Vector Omni - International
                     Cetacean Society                                    The Whale Center
                     Coast Alliance                                      Whales Alive - Australia
                     Cornell University                                  Whale Fund
                     Defenders of Wildlife                               Whale Museum
                     EDAW, Inc.                                          Wilderness Society,
                     Environmental Defense Fund, Inc.                    William Wanket, Inc.
                     Environmental Law Institute                         Woods Hole Oceanographic Institution
                     Environmental Policy Center                         World Wildlife Fund - U.S.
                     FEDECAS - Columbia
                     Findhom Foundation                                  LOCAL INTEREST GROUPS
                     Triends of the Earth
                     Great BarTier Reef Marine Park - Library            Aaron's Dive Shop
                     The Greenpeace Foundation                           Activity Owners Association of Hawaii
                     Hatfield Marine Science Center                      Ala Moana Pacific Center
                     Hubbs Sea World Research Institute                  Alexander and Baldwin
                     International Bird Rescue                           American Fisheries Society, Hawaii Chapter
                     International Medcom                                American Hawaii Cruise Lines
                     LEROS                                               Animal Rights Hawaii
                     Marine, Mammal Commission                           Architects' Hawaii, Ltd.

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                                                                                                                    ent
                                                                                                    and Management Plan

                  Hawaiian Islands Humpback Whale                                  Part VII: List of Agencies and Organizations
                  National Marine Sanctuary                                             Receiving Copies of the Final EIS/MP

                  Atlantis Submarine - Hawaii                              Honolulu Star Bulletin
                  BHP Petroleum Americas (Hawaii), Inc.                    Honolulu Weekly
                  Belt Collins, Hawaii                                     Iao School
                  Bill's Scuba Shack                                       Kaanapali Beach Resort Assn.
                  Bishop Museum                                            Kailua Elementary School
                  Carl Smith et. al (inc).                                 Kamehaineha Schools
                  Center for Whale'Studies                                 Kaneohe Bay Yacht Club
                  CEROS                                                    Kau Landing Paper
                  Chaminade University - Biology Dept.                     Kauai Friends of the Environment
                  Chevron USA, Inc.                                        Kauai High School
                  Chamber of Commerce of Hawaii                            Kauai Times
                  Citizens for the Protection of the North                 Kewalo Basin Marine Mammal Lab
                  Kohala Coast                                             KGMB,
                  Clean Islands Council                                    Kihei Community Assn.
                  Club Lanai                                               Kilauea Point National Wildlife Refuge
                  Council of Hawaii Organizations                          KITV Channel 4 News
                  Dive Maui                                                Kona Iki Trollers
                  Earth Island Institute                                   Kukui'ula Development Corp.
                  Earthtrust                                               Lady Ann Cruises
                  Elsa Nature Conservancy - Japan                          Lahaina Divers
                  Environment Hawaii                                       Lahaina Times
                  Environmental Science Designs                            Lahaina Town Action Committee
                  Expeditions                                              Lahaina Yacht Club
                  Estate of James Campbell                                 Lanaiians for Sensible Growth
                  Friends'of the Hana Coast                                Life of the Land
                  Friends of the Makalawena                                Living Ocean Adventures
                  Friends of Queen's Beach                                 M& M Pacific Inc.
                  Friends Of. the Puako Reef                               Maalaea Boat and Fishing Club
                  Garden Island Times                                      Matson Navigation
                  Garden Island Trollers                                   Maui - Molokai Sea Cruises
                  Gemini Charters                                          Maui Chamber of Commerce
                  Grove Farms - Kauai;                                     Maui Divers of Hawaii
                  Group 70 International                                   Maui Economic Development Board
                  Hanalei Cominunity Association                           Maui Radio Group
                  Hawaii Audubon Society                                   Maui Trailer Boat Club
                  Hawaii Boaters Council                                   Maui Visitors Bureau
                  Hawaii Environmental Education Association               Maulana Magazine
                  Hawaii Fishermen's Association                           Mauna Kea Divers
                  Hawaii Fishing News                                      MaunaLani Sea Ventures
                  Hawaii Hochi Ltb.                                        Mid- Pacific Hawaii Fisheries
                  Hawaii Hotel Association                                 Mike Severns, Diving
                  Hawaii RVIAX                                             Moanalua Garden's Foundation
                  Hawaii Maritime Center                                   'Molokai Advertiser - News
                  Hawaii Nature Center                                     Na Lani Video Services
                  Hawaii Ocean Industry Fund                               Na Pali Adventures
                  Hawaii Pacific Uniyersity                                Native Hawaii Ad. Council
                  Hawaii Whale Research Fund                               Native Hawaiian Fisherman Assn.
                  Hawaii Wildlife Fund                                     The Nature Conservancy
                  Hawaii Visitors Bureau                                   Natural Resources Defense Council, Hawaii
                  Hawaii's Thousand Friends                                Navitek
                  Hawaiian Tug/Young Bros.                                 Ocean Drifters
                  Helbert, Haster and Yee                                  Ocean Rafting Maui
                  Hinatea Sportfishing                                     Ocean Riders
                  Honolulu Advertiser                                      Ocean Sport Waikoloa

                  Final Environmental impact Statement                                                              Page 279
                  and Management Plan

                      Part VII: List of Agencies and Organizations                                   Hawaiian Islands Humpback Whale
                      Receiving Copies of the Final EIS/MP                                                   National Marine Sanctuary

                      Oceanic Institute
                      Oceanit
                      Ohana 0 Hawaii
                      One Earth Foundation
                      Pacific Islands Institute
                      Pacific Museums Inc.
                      Pacific Whale Foundation
                      PANGALEA
                      Papa Ola Lokahi
                      People Opposed to the Whale Sanctuary
                      Protect Kahoolawe Ohana
                      Rainbow Divers
                      Royal Hawaiian Cruises
                      St. Andrew's Priory
                      Save Our Bays and Beaches
                      Save our Seas
                      Sea Bird Cruises
                      Sea Life Park
                      Scotch Mist Sailing Charters
                      Sierra Club
                      Sierra Club Legal Defense Fund
                      Thousand Friends of Kauai
                      Tongg & Tongg
                      TORCH
                      TOS Hawaii. Inc.
                      Trilogy Cruises
                      Ultimate Rafting
                      United Fishing Agency
                      Wa Ula 0 Kai
                      Waikaloa Land Company
                      Waikiki Aquarium
                      West Hawaii Today
                      West Maui Taxpayers Assn.
                      West Maui Watershed Project
                      Wlmles Alive
                      Wilson Okamoto Assn.
                      Windjammer Cruises
                      Yar(la's Specialty Shop
                      Zi-purr Charter

                      Page 280                                                                    Final Environmental Impact Statement
                                                                                                                  and Management Plan

                    Hawaiian Islands Humpback Whale                                                                                   Appendices
                    National Marine Sanctuary

                                                             PART V111              APPENDICES

                                                             TABLE          OF      Q2NTENM

                                                                                                                                 PA GE

                    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:         SanctuaryAdvisory Council           Charter and members          .........................  351

                    Appendix E:         Agreements for Coordinated Management of the Hawaiian
                                        Islands Humpback Whale National Marine Sanctuary                    ....................... 361

                                          Memorandum of Understanding Between the Sanctuaries and
                                          Reserves Division and the National Marine Fisheries Service
                                          Regarding Permit Review and Consultation               ................................   363

                                          Draft Memorandum of Understanding Between the Sanctuaries
                                          and Reserves Division and the State Departments of Health and
                                          Land and Natural Resources Regarding Permit Review                      .................. 367

                                          Memorahdum of Understanding between NOAA, U.S.
                                          Coast Guard, and DLNR-DOCARE Regarding Deputization
                                          for Enforcement        ..............................................................     373

                    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          ......................................................    423

                    Appendix I:         Whale Education Programs in Hawaii               .......................................... 425

                    Appendix J:         Bibliography and References           ..................................................    429

                    Appendix K:         Designation Document and Implementing Regulations                    .....................  447

                    Final Environmental Impact Statement                                                                                 Page 281
                    and Management Plan

                     Appendices                                                                  Hawaiian Islands Humpback Whale
                                                                                                         National Marine Sanctuary

                                                TIES PAGE INTENTIONALLY LEFr BLANK

                     Page 282                                                                 Final Environmental Impact Statement
                                                                                                              and Management Plan

                  Hawaiian Islands Humpback Whale                                        Appendix A: Responses to Comments
                  National Marine Sanctuary

                                                              Appendix A

                                                  RESPONSES TO COMMENTS

                          The FEIS/MP provides an analysis of the impacts of the proposed action and its
                  alternatives. Public and agency review of the DEIS/M[P helps to ensure the FEIS/MP is responsive
                  to public and agency comments.

                          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 preferred alternatives and to answer
                  questions and concerns. SPO 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. SRD reviewed and responded to all substantive'comments
                  which were not statements simply for or against the proposal. That is, those comments requiring
                  additional explanation, analysis of data, or those which debated facts or conclusions reached in the
                  DEIS/MP.

                          Significant issues and substantive comments were addressed in the response to comments
                  section which follows and by making changes to the EIS, as appropriate. Because many
                  comments were duplicative in nature, SRD summarized the similar substantive comments by issue
                  (i.e., regulations), and then further defined subtopics (i.e.., regulatory alternatives, future
                  regulations). This allows the reader interested in a particular issue to easily identify that issue and
                  NOAA's response.

                            MI....''b", w1,11"M
                                                       NMI
                                                             Ma.
                                                                                       all
                  ro

                          Comment:        All boundary     alternatives  should exempt commercial        harbors from the
                  Sanctuary and allow for further expansion of existing harbors. Harbor exemptions should also
                  include approaches and off-shore anchorages.
                          Response: The Sanctuary boundary excludes major ports, harbors, and small boat basins
                  primarily because they do not constitute humpback whale habitat. Whales tend to avoid such areas
                  because of the number and types of activities that occur within such ports, harbors, and small boat
                  basins (both in and out of the -water). Such activities include, but are not limited to, vessel
                  painting, shore-based boat cleaning, toxic paint releases from moored vessels, and sewage
                  disposal. NOAA has determined that the nature and level of these activities are not appropriate for
                  inclusion within the Sanctuary. By excluding these areas, NOAA will be able to focus Sanctuary
                  management on the long-term protection of other areas that do constitute humpback whale habitat
                  and are less heavily impacted by human activity. The list of excluded ports, harbors 'and small boat'
                  basins can be found at section 945.2 of these regulations. These final regulations add the Ala Wai
                  small boat basin on Oahu to the list of excluded areas. While the Sanctuary regulations do not
                  pFohibit 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 by NOAA in order. to offer 'recommendations and comments to ensure. that
                  Sanctuary resources are adequately protected. At that time, NOAA will determine whether to
                  revi@e the Sanctuary boundary to exclude the new or expanded port, harbor or boat basin.
                  Approaches -to harbors and offshore anchorages are not excluded from the Sanctuary boundary
                  because these areas are more frequently used by humpback whales and provide an important link
                  between the nearshore and deeper water habitats,

                  Final Environmental Impact Statement                                                               Page 283
                  and Management Plan

                     Appendix A: Responses to Comments                                       Hawaiian Islands Humpback Whale
                                                                                                     National Marine Sanctuary

                     2.      Comment: NOAA should only include those areas on leeward sides of the islands in the
                     Sanctuary boundary since that is where the whales seem to be located.

                             Response:      NOAA disagrees. Humpback whale distribution studies over the last ten
                     yeajrs have shown that humpbacks are commonly found in waters less than 100-fathoms
                     throughout the main Hawaiian Islands (windward and leeward). Though distribution studies have
                     shown that humpbacks can be found in greater numbers in leeward areas, they still use windward
                     ar=s for breeding, calving, and nursing activities. At present, scientists do, not fully understand
                     distribution patterns and habitat preference for humpbacks, though it is accurate to say that
                     humpback whales are distributed throughout the main- Hawaiian Islands, particularly in waters less
                     than 100-fathoms. Given that humpback whales are very dynamic and swim among the different
                     islands, NOAA has determined that the boundary should include windward and leeward sides of
                     the islands.

                     3.      Comment: NOAA should adopt a Sanctuary boundary that includes waters around all the
                     main Hawaiian Islands from the shoreline to the 1000-fathom isobath to better encompass all the
                     whales' habitat.

                             Response: NOAA recognizes that this boundary alternative would include most if not all
                     the humpback whale habitat in the main Hawaiian Islands, but has concluded that this alternative is
                     far too large for effective management under current and foreseeable financial and staff resources.
                     Most of the area in this boundary alternative is located significantly offshore (e.g., up to 40 miles
                     frorn. each main Hawaiian Island). The dispersion of management activities (e.g., research and
                     enforcement). in these areas would strain the program's ability to effectively manage other
                     nearshore areas of the Sanctuary. Since most human and whale activities and interactions occur in
                     relatively shallow waters (generally less than 100-fathoms), NOAA believes the focus of Sanctuary
                     martagement efforts would be better placed in these areas. - This alternative also fails to consider the
                     importance of U.S. Department of Defense (DOD) military use areas in Hawaii that are essential to
                     national security and defense.

                     4.      Comment: NOAA should adopt a zoned boundary; an outer boundary around the 1000-
                     fathom isobath (no regulations -- advisory only) and an inner boundary constituting the
                     Coingressionally-designated boundary.

                             Response: NOAA disagrees. Although this option would incorporate most humpback
                     whale habitat in the Sanctuary, NOAA believes that such a boundary is too large to effectively
                     martage (see previous response). NOAA believes that a 100-fathom- isobath boundary is more
                     manageable since research, education, and other resource protection measures can be focused in
                     those nedrshore areas where whales and human activities are more likely to come into conflict.
                     This core 100-fathom boundary is included as the NOAA preferred boundary alternative, excluding
                     DOD mi,litary use areas that are essential to national security and defense (see response #8).
                     @5.     Comment: The shoreline does not need to constitute the Sanctuary's border since whales
                     don't go that close to shore.

                             Response:, The shoreline was chosen as the Sanctuary's inshore boundary because the
                     purpose of the Sanctuary is to protect the humpback whale and its habitat. Humpback whales use
                     theshallow, nearshore areas (less than 100-fathom isobath) around the main Hawaiian Islands for
                     cerudn. reproductive activities (i.e., calving and nursing). The bathymetry around the Hawaiian
                     Islands is variable, with some adjacent.niiihne'areas dropping off steeply very close to shore and,
                     therefore, whales may be found in these areas. Further, impacts to the nearshore waters of
                     humpback wha    'le habitat could impact waters further offshore as well, where whales are also
                     found. The shoreline is also more easily recognized as a definable, uniform inshore boundary than

                     Page: 284                                                           Final Environmental Impact Statement
                                                                                                        and Management Plan

                   Hawaiian Islands Humpback Whale                                      Appendix A: Responses to Comments
                   National Marine Sanctuary

                   are offshore areas. Finally, a boundary that includes the shoreline also provides more protection
                   for stranded whales or whale carcasses that wash up on shore.

                   6.      Comment: Define -what makes a boundary, manageable versus non-manageable. The
                   Statewide boundary is too large for NOAA to effectively manage.

                           Response:       The National Marine Sanctuary Program has 14 different sites, each
                   encompassing unique resources in a defined geographic area. Their sizes range from 0.25 square
                   miles to over 5,000 square miles. Manageability must be looked at on a site by site basis taking
                   into account area's size and resources, existing management authorities, accessibility to the site,
                   types and impacts of human uses, suitability for research, monitoring and enforcement activities,
                   and fiscal and staffing resources of the National Marine Sanctuary Program. In selecting a
                   sanctuary boundary, NOAA assesses whether the boundary will both facilitate the goals for which
                   the sanctuary was designated and, whether its is manageable given resource and practical
                   limitations. NOAA has determined that it could successfully supplement and help coordinate
                   research, long-term monitoring, education, and enforcement programs within a statewide
                   Sanctuary boundary (with certain exceptions) encompassing the waters from the shoreline to the
                   100-fathom isobath.

                   7.      Comment: NOAA should adopt the Congressionally designated boundary (Maui County
                   and part of Kauai).

                           Response:    Although Maui County has historically had and continues to have the highest
                   reported concentration of humpback whales, other areas of the State (i.e., Kauai, Oahu, and the
                   Big Island) include important whale habitat used for breeding, calving, and nursing activities.
                   Many different scientific research studies have concluded that humpback whales are primarily
                   distributed within the 100-fathom isobath throughout the main Hawaii Islands, including Kauai,
                   Oahu, and the Big Island. NOAA believes that a statewide boundary is necessary to provide
                   comprehensive and coordinated management of humpback whales throughout Hawaii, and that the
                   -benefits associated with a National Marine Sanctuary, including research and educational efforts,
                   and enhanced enforcement of existing laws, should be available to all the islands of the State.

                   8.      Comment: The expansion of the Sanctuary beyond Maui County is not justified,
                   especially in light of the fact that the military exclusion zones' contain high reported concentrations
                   of humpback whales (West Kauai, Oahu), Military areas should not be excluded. from the
                   boundary since activities occurring in these areas can impact the whales.

                           Response: In choosing a bo      'undary for a sanctuary, NOAA must take into consideration
                   many factors, including a area's size, resources, manageability, and the human uses of the area
                   (see earlier response). The Department of Defense (DOD) is a significant ocean user in Hawaii,
                   and many of its activities are essential to our nation's security and defense. NOAA has formally
                   consulted with DOD on their existing military activities and has concluded that they have sufficient
                   resource protection measures within their standard operating procedures to ensure the protection of
                   humpback whales and their habitat. DOD activities remain subject to the provisions of the Marine
                   Mammal Protection Act (MMPA), the Endangered Species Act (ESA), and other laws and
                   regulations relating to water quality and the. To facilitate DOD military uses, NOAA, in
                   consultation with the State of Hawaii and DOD, determined that the Hawaii Sanctuary boundary
                   should not include certain military use areas in order to support the military's interests and activities
                   now as well as into the future, and to maintain our nation's national security interests.

                   Final Environmental Impact Statement                                                             Page 2285
                   and Management Plan

                    Appendix A: Responses to Comments                                      Hawaiian Islands Humpback Whale
                                                                                                   National Marine Sanctuary

                    9.       Comment: NOAA should expand the boundary of the -Sanctuary to include waters
                    surrounding the entire State, including the Northwest Hawaiian Islands (NWHI).
                             Response: NOAA agrees that the boundary of the Sanctuary should beexpanded beyond
                    the Congressionally-designated boundary (i.e., Maui County). However, NOAA does not believe
                    that the NWHI should be included within the Sanctuary boundary for a variety of reasons. First,
                    few humpback whales have been reported around the atolls, islands, banks, and reefs of the
                    NWHI. Second, this area is managed as a national wildlife refuge, significantly restricting access
                    to the area, even for research purposes. Finally'. the inclusion of these waters, which are remote
                    and. difficult to access, could hinder effective resource management efforts in, these areas and
                    detract management efforts from oiher parts of the main. Hawaiian Islands.

                    10. - Comment: NOAA should expand the boundary of the Sanctuary to include- areas - of
                    humpback whale habitat throughout the U.S. Exclusive Economic Zone.(EEZ).

                             Response: NOAA does not believe that a Sanctuary encompassing all of Hawaii's EEZ is
                    necessary or manageable. Most humpback whales can be found within the 100-fathom isobath
                    around the main Hawaiian Islands. An EEZ-sized Sanctuary would expand the Sanctuary to areas
                    that are very r"eimote @- hundreds of miles from human population centers.              As a result,
                    comprehensive management, including additional research, long-term monitoring, and
                    enforcement demands would significantly strain financial resources and curtail effective
                    management efforts in other areas of the'State where both whales and humans are more likely to
                    interact. Regulatory protection offered by the MMPA and.th6 ESA, however, still protects the
                    humpback whale throughout Hawaii's EEZ.

                    A L      Comment: - NOAA should adopt a'boundary that encompasses areas of highest reported
                    concentrations of humpback whales so that the Sanctuary does not include areas where whales are
                    not typically present.

                             Response: Although this boundary encompasses a series of discrete areas known to be
                    extensively used by humpback whales, it fails to include other important identified areas of the
                    main Hawaiian Islands that humpback whales utilize for transit, courting/mating, breeding,
                    calving, and resting activities. In addition, this.-boundary does not consider the fact that an
                    increasing whale population will eventually require more space to successfully reproduce, calve,
                    and nurse, and it does not allow for the adequate comprehensive protection of humpback whales
                    and their habitat throughout the Hawaiian range. Finally, this boundary fails to recognize the
                    importance of DOD military use areas. and activities that are essential to national security and
                    defense.

                    12.      Comment: NOAA should adopt as a boundary for the Sanctuary the 100-fathom isobath
                    .surrounding all the main Hawaiian Islands including Kaula Rock.

                             Response:      While this boundary accurately reflects the current understanding of
                    humpback whale distribution and habitat use in Hawaii, it fails to recognize the significance of
                    DOI) military use areas and activities that are essential to national security and defense.
                    Furthermore, this boundary is slightly larger in scope -than the NOAA preferred boundary, as it
                    includes marine waters surrounding. Niihau a nd Kaula Rock. The inclusion of these waters, 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 main Hawaiian Islands.

                    Page 286                                                            Final Environmental Impact Statement
                                                                                                      and Management Plan

                 Hawaiian Islands Humpback Whale                                   Appendix A: Responses to Comments
                 National Marine Sanctuary

                 13. - Comment: NOAA should exclude the Big Island from the Sanctuary's boundary because
                 there are not as many whales around the island as in other parts of the State, and the. Big Island
                 residents do not want the Sanctuary there.

                        Response: NOAA has received oral and written comments both in opposition to. and in
                 support of the inclusion of the Big Island within the boundary of the Sanctuary. NOAA believes
                 that'the waters around the Big Island constitute important habitat for the humpback whale.
                 Research has shown that the northwest portion of the Big Island contains high concentrations of
                 whales. The whales are also known to use other areas around the Big Island for reproduction,
                 calving, and nursing activities as well. NOAA believes that inclusion of the Big Island will help
                 ensure that comprehensive management and protection of humpback whales and their Hawaiian
                 habitat will be applied statewide. NOAA does not believe that the inclusion of the Big Island will
                 result in significant adverse socio-economic impacts on marine users, and that the benefits
                 associated with a national marine sanctuary (including research and educational efforts, and
                 enhanced enforcement of existing laws) would be distributed throughout the main Hawaiian
                 Islands.

                 14.     Comment: NOAA should include the Big Island in the Sanctuary boundary.

                         Response: NOAA agrees and the Big Island has been included in the boundary with the
                 exception of harbors, ports and small boat basins (see previous response).

                 15.     Comment: All of the boundary alternatives should be justified by whale needs and
                 through supportable scientific evidence.

                         Response: In developing the boundary alternatives and selecting the preferred boundary
                 alternatives, NOAA used the most current scientific evidence to determine whale locations around
                 the main Hawaiian Islands. Since population studies have shown that humpback whales frequent
                 the 100-fathorn. isobath region more than other areas of the State, NOAA decided on a statewide
                 boundary using that depth contour as an outer limit. Certain areas around the State have not been.
                 included, however, based on and because of DOD national security interests (see response         #8).
                 Not including such areas should not compromise the purposes of the HU*4MSA

                 16.     Comment: There is a discrepancy between the authority of the Kahoolawe Island Reserve
                 Commission (KIRC) (shore to two nautical miles) and the Hawaiian Islands National Marine
                 Sanctuary Act (HINMSA) language excluding the waters around Kahoolawe (shore to three
                 nautical miles). This one mile gap in jurisdiction needs to be corrected.

                         Response: Although there is a one mile gap between the Congressionally designated
                 Sanctuary and KIRC's authority in the water surrounding Kahoolawe, in the preferred alternative
                 NOAA does not propose to include the one mile area into the Sanctuary boundary at this time. In
                 December 1995, the Secretary of Commerce certified that the three mile area was unsuitable for
                 inclusion into the Sanctuary. The HINMSA was amended in 1996 to allow the KIRC to request
                 inclusion into the Sanctuary the marine waters within three miles from Kahoolawe. If at some
                 point in the future such waters are deemed suitable for inclusion, the entire three mile'areA would
                 likely be included within the Sanctuary. Special management measures would likely be necessary
                 for the area lying within two nautical miles of Kahoolawe to reflect KIRC's manag
                                                                                                     ,ement authority
                 and responsibility.

                 Final Environmental Impact Statement                                                         Page 287
                 and Management Plan

                      Appendix A: Responses to Comments                                           Hawaiian Islands Humpback Whale
                                                                                                          National Marine Sanctuary

                      17.      Comment: The waters around Kahoolawe could be added to the Sanctuary without the
                      opportunity for public comment. This would be a violation of the. National Marine Sanctuaries Act
                      (NNISA).
                               Response: The public has had at least two formal opportunities (March 1993 scoping
                      meetings and September-December 1995 public hearings and connnent period on the DEIS/MP) to
                      comment on the inclusion of the waters around Kahoolawe 'in the Sanctuary. In December, 1995,
                      the Secretary of Commerce certified that the waters around Kahoolawe are unsuitable for inclusion
                      in the Sanctuary and, therefore they are not part of the Sanctuary boundary. In 1996, the
                      HINMSA was amended, in part -to provide that should NOAA determine in the future 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. NOAA is committed to
                      providing additional opportunities for public input, and will also seek recommendations and advice
                      from ihe Sanctuary Advisory Council (SAC).' In addition, NOAA will work closely with the
                      KIRC and the State concerning the inclusion of Kahoolawe waters in the Sanctuary.

                      Existin Reeulations

                      18.,     Comment: Humpback whales are already protected by the MMPA, the ESA, and State
                      regulations. There is no need for additional regulatory protection.

                               Response: In 1992, Congress enacted the HINMSA, recognizing the important role that
                      the Hawaiian Islands play in the preservation and long-term vitality of the endangered.humpback
                      whale. The waters around the Hawaiian Islands constitute essential breeding, calving, and nursing
                      areas for this important national resource, and, are subject to damage and to loss of their ecological
                      integrity from a variety of disturbances.

                      The HINMSA directed NOAA to- develop a comprehensive management plan and implementing
                      regulations for the Sanctuary in consultation with appropriate Federal, State, and local government
                      authorities, as well as other interested persons (i.e., marine users and the general public). The
                      purpose of the Sanctuary designation is to promote the comprehensive and coordinated protection
                      of the humpback whale and its habitat, which NOAA has determined can be achieved through
                      research, monitoring, education, and better enforcement of existing regulations.

                      NOAA reviewed the scientific literature concerning potential impacts to humpback whales and the
                      existing Federal and State regulations and programs designed to protect humpback whales and their
                      habitat, and concluded that no additional independent. regulatory prohibitions or restrictions are
                      needed for their protection at this time. NOAA believes that other coordinating and non-regulatory
                      protection measures are needed, however, to ensure the long-term recovery and vitality of
                      humpback whales and their habitat. While direct regulation is certainly one means of providing
                      protection for resources, NOAA believes that education, research, monitoring, coordination, and
                      better enforcement of existing laws are also necessary to ensure comprehensive protection for
                      humpback whales and their habitat.

                      NOAA has found that there are adequate existing regulations in place to provide protection of
                      humpback whales and their habitat in Hawaii at this time. However, NOAA, in consultation with
                      other Federal and State agencies, resource managers and researchers, has determined that

                      7-ge 288                                                                 Final Environmental Impact Statement
                                                                                                               and Management Plan -

                 Hawaiian Islands Humpback Whale                                    Appendix A: Responses to Comments
                 National Marine Sanctuary
                 enforcement of existing authorities needs to be supplemented to provide for greater, coordinated
                 and comprehensive protection of humpback whales -and their habitat. Supplementation will be
                 accomplished by incorporating certain existing restrictions as Sanctuary regulations. Such action
                 will enable the Sanctuary to bring the humpback whale perspective to the application of these
                 existing authorities, and to allow for enforcement- mechanisms and, when appropriate, civil
                 penalties to be brought under the National Marine Sanctuaries Act for -violations of such
                 authorities.

                 NOAA also recognizes that existing authorities do not provide the necessary resources for agencies
                 to develop comprehensive and coordinated education, research, monitoring, and enforcement
                 programs to ensure the continued viability of humpback whales and their habitat. Nor do these
                 laws provide the degree of public input into managing these resources as does the NMSA. NOAA
                 has therefore determined that there is a need to supplement these other non-regulatory. resource
                 protection management tools, and that the Hawaii Sanctuary can play an integral role,in facilitating
                 dialogue and in coordinating with the other Federal, State, and county agencies, and the general
                 public. The Sanctuary Management Plan provides a comprehensive and coordinated regime, that
                 complements existing efforts, to protect, manage, and conserve humpback whales and their habitat
                 in Hawaiian waters so they may be enjoyed by both present and future generations.

                 19.     Comment: How will the Sanctuary provide more protection for the whales given that
                 ,they are already protected by existing regulations?

                         Response:       NOAA believes that "protection" encompasses more than regulatory
                 measures. Education, research, monitoring, coordination, and enforcement all contribute to
                 protecting Sanctuary resources. In response to public and agency comments, NOAA is not issuing
                 new, independent Sanctuary prohibitions or restrictions in Hawaii to protect humpback whales and
                 their habitat. Instead, NOAA will essentially incorporate existing regulations to make up the
                 regulatory portion of the Sanctuary management regime (see previous comment). This will
                 increase protection for humpback whales and their habitat in several ways. First, this gives.
                 authority for the Hawaii Sanctuary to be a resource management agency that actually "sits at the
                 table" and reviews pem-At applications for potential harm to Sanctuary resources. The Hawaii
                 Sanctuary has a different and much more focused mission than any of the other agencies in Hawaii
                 inasmuch as its primary concern is to ensure that humpback whales and their habitat are not
                 adversely impacted. Since the Sanctuary is relying on existing regulations, the Sanctuary will not
                 issue independent permits, but will work within the existing perniit structures of agencies to ensure
                 that potential impacts to whales are addressed. Memoranda of Understanding (MOUs) with the
                 such agencies will detail how the Sanctuary will coordinate in reviewing permit applications.

                 .Second, Sanctuary regulations also provide the necessary authority for the Sanctuary to directly
                 work with Federal and State enforcement agencies to coordinate enforcement of permit violations.
                 Although there are several different Federal and State enforcement entities, all are facing severe
                 financial resource limitations. The Sanctuary can supplement these limited resources and enhance
                 education and outreach efforts to ensure that the public is informed about existing regulations.
                 Finally, the regulations may provide an added deterrence topotential violators in that the 'Sanctuary
                 program has a $100,000 potential maximum civil penalty for persons violating Sanctuary
                 regulations: (whale approach and harassment, discharges, and alteration of, the seabed).           All
                 Sanctuary fines assessed as a result of Sanctuary enforcement actions will, however, be based on a
                 civil penalty schedule developed for the Sanctuary that will be made publicly available.
                 Non-regulatory features of the Sanctuary that will provide greater protection for humpback whales
                 and their habitat include: the SAC., which can provide a framework for continuous -dialogue
                 between the Sanctuary Manager and resource managers, researchers, educators, enforcement
                 agencies, marine users, and. the public; research used to address management-related issues and to

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                     Appendix A: Responses to Comments                                        Hawaiia@ Islands Humpback Whale
                                                                                                      National Marine Sanctuary

                     answer unknown questions such as how and why wh            ales change their behavior in response to
                     various human disturbances; and proactive efforts to work" with existing organizations and marine
                     user groups to produce and disseminate information about how humans can mmirruze their impacts
                     on humpback whales and their habitat and on the existing laws that protect Sanctuary resources.

                     2 , Q..  Comment: Although Sanctuary program staff have stated -that there win be no "new"
                     Sanctuary regulations, doesn't the fact that -the Sanctuary -is incorporating existing regulations as
                     part of its regulatory structure constitute new regulations? How is this different than the status quo
                     in terms of perrnits, veto authority over projects, and enforcement?

                              Response:      NOAA is essentially incorporating certain existing Federal and State
                     regulations that protect (directly and indirectly) humpback whales and their habitat into the
                     Sanctuary management regime as Sanctuary regulations. However, the Sanctuary regulations do
                     not impose any new restrictions inasmuch as the regulations only impose the substantive
                     restrictions which were already in place before the designation of the Sanctuary. They do not place
                     any additional prohibitions or restrictions on marine users aside from those that already exist. Nor
                     do the Sanctuary regulations provide authority to require and issue Sanctuary permits. The
                     Sanctuary is developing MOUs with appropriate Federal and State agencies to facilitate review by
                     the Sanctuary of other agency permit applications for activities. that could impact Sanctuary
                     resources, and, if necessary,'provide recommendations to the agency considering issuing a permit
                     on ways to prevent, minimize, or mitigate harm to these resources.                   These would be
                     recommendations only, and the permitting agency ultimately determines whether to include the
                     recommendations as part of its permit conditions. The Sanctuary regulations do not provide the
                     authority for NOAA to veto, deny, or approve permits issued or authorized by these other
                     agencies. The only "new" feature of these regulations would be that if an activity is conducted
                     without a required permit, or in violation of the terms and conditions of an existing permit, such
                     action would be a violation of the Sanctuary regulations. The Sanctuary would then coordinate
                     with the appropriate Federal or State agency on any necessary enforcement actions. This regime is
                     consistent with the input NOAA received throughout the public process from Federal and State
                     agencies, resource managers, researchers and others regarding the adequacy of existing regulations
                     as.they,pertain to protection of humpback whales and their habitat in Hawaii.

                     2 1. , Comment: The current humpback whale approach regulations are flawed. The Sanctuary
                     should create a "right of safe passage," or show some "intent to harass" so that as the humpback
                     whale populations continue to increase, and vessel-whale interaction becomes more common,
                     vessel opiemtors will still be allowed to transit an area without fear of 'being cited for a violation of
                     an approach regulation.

                              Response: In 1987, the National Marine Fisheries Service (NMFS) published an interim
                     rule 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 to provide better
                     protection for humpback whales and to minimize the effects of increasing vessel traffic on
                     humpback whales. A final rule was -published by NMFS in January 1995 (60 FR 3775) that
                     retained the 100-yard vessel approach limits and 1000-foot overflight limit, but eliminated the 300-
                     yard cow-calf areas.

                     NOAA recognizes a difference between approach and proximity !o humpback whales, and that
                     whales may approach vessels.. The 100-yard approach regulation clearly states that approaching
                     (moving toward) a humpback whale within the prescribed limits is prohibited. A vessel would not
                     ordifiarily violate the regulation by inadvertently being inside the 100-yard limit, or if a humpback
                     whale surfaces or -approaches within of 100 yards of a vessel. NUFS Enforcement agents and the
                     NO  'AA Office of General Counsel (GQ assess alleged violations on'a case by case basis to
                     determine whether an approach has occurred, and whether an enforcement action is warranted.

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                  Hawaiian Islands Humpback Whale                                        Appendix A: Responses to Comments
                  National Marine Sanctuary

                  The existing approach regulations appear to have successfully achieved protection for the whale
                  while avoiding enforcement actions for merely being within 100 yards of a whale.

                  The National Manne Sanctuary Program is incorporating the NUFS approach prohibitions into the
                  Sanctuary management regime. The Sanctuary program cannot independently make changes to
                  regulations promulgated under other authorities (M[MPA, ESA, or any other Federal or State
                  regulation). The Sanctuary program however, recognizes the concerns of the boating community
                  over the enforcement of these regulations and the potential conflict due to increases in both the
                  whale populations and in boating activities in Hawaii. The Hawaii Sanctuary will help coordinate
                  and facilitate dialogue between concerned boaters and NUFS (Office of Protected Species and
                  Office of Enforcement) and NOAA-GC In addition, the Sanctuary's Management Plan will
                  undergo a formal evaluation after five years, including a determination of the effectiveness of the
                  Sanctuary regulations at protecting Sanctuary resources, and their impacts on marine users.

                  12.      Comment: Tbe Sanctuary should, in cooperation with boat -operators, promote proper
                  disposal of sewage from boat heads, encourage compliance with existing laws, and help implement
                  existing regulations and programs.

                           Response: NOAA agrees. Water quality is one component of the humpback whale
                  habitat that many people want to see improved and maintained. The Sanctuary can use the
                  expertise available on the SAC and associated working groups to work with the boating
                  community and operators to develop voluntary education programs aimed at achieving proper
                  vessel sewage disposal and compliance with existing regulations.                 The Sanctuary is also
                  supplementing existing regulations that pertain to discharges or deposits that could affect
                  humpback whales or their habitat by making illegal discharges or deposits a Sanctuary violation.

                  Future Regulations

                  23.      Comment: The Sanctuary has not provided a               guarantee that there will be no new
                  Sanctuary regulations in the future.

                           Response: - NOAA cannot make the guarantee              that future regulations will never be
                  necessary. It is possible that someday resource managers may identify a specific type of activity
                  that could negatively impact Sanctuary resources or create conflicts among other Sanctuary users.
                  While other non-regulatory options would be pursued first, regulation is one type of management
                  tool that NOAA may choose to consider in order to protect Sanctuary resources or minimize user
                  conflict. NOAA could not issue a new regulation, however, without first going through an
                  extensive public -review and comment process (see following response). The Governor would also
                  have the opportunity to object to any new Sanctuary regulation as it pertains to State waters.
                  24.      Comment: Should new regulations be necessary in the future, what is the process?
                           Response: NOAA must first identify and support that there is a need for a new regulation
                  (e.g., that a Sanctuary resource is being, or could be negatively affected by some activity or that an
                  activity is creating a conflict among Sanctuary users). NOAA would work with other Federal and
                  State resource management agencies, the research community and affected user groups to collect all
                  relevant and available information and scientific. data that will be used to more clearly defte the
                  problem and identify potential solutions. NOAA will also seek advice and recommendations from
                  the SAC and other resource management agencies prior to initiating any rulemaking.
                  If after coordinating with existing agencies and the SAC a decision is made to propose a new
                  regulation, NOAA is required to, at a minimum, follow the procedures of the Administrative
                  Procedure Act, requiring that adequate public notice and opportunity for public comment be given
                  for new regulations. Further, if NOAA proposed a regulation outside of the scope of regulations

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                    Appendix A: Responses to Comments                                      Hawaiian Islands Humpback Whale
                                                                                                  National Marine Sanctuary
                    listed in the Sanctuary Designation Document, NOAA would be legally required to go through -the
                    designation process, including public review and comment, at least one public hearing, preparation
                    of a Supplemental EIS, and gubernatorial review and approval. If the Governor objects, the
                    regulation would not take effect in State waters. Finally, if NOAA proposed to substantively
                    change an existing regulation, NOAA must provide for public review and comment and, although
                    not legally required to do so, gubernatorial review and approval.

                    2 S.. Comment: There should be no new regulations unless:
                            i)      the need for a new regulation is clearly demonstrated;
                            ii)     the disturbance results in loss of humpback whale life;
                            iii)    the negative impacts of the activity have been documented and substantiated by
                    legitimate research; and
                            iv)     regulations are first approved unanimously by the SAC.

                            Response: NOAA agrees that there should not be any new sanctuary regulations unless
                    there. is a demonstrated need. NOAA will work closely with existing agencies, the SAC, the
                    scientific community, and marine users to identify and clarify any potential problems before
                    promulgating new regulations. NOAA will make all efforts to collect existing relevant scientific
                    data or provide resources to fund research if necessary to investigate the nature, scope, and cause
                    of such problems.

                    NOAA does not agree, however, that it should only regulate an activity if the activity is found to
                    kill -a humpback whale. NOAA firmly believes that resource protection should be proactive in
                    nature and be responsive to potential problems as they arise - this means acting when the problem
                    is identified and confirmed, rather than waiting until after death occurred before taking any action.

                    NOAA My intends to seek input from the SAC on the scope of any potential problems as well as
                    s6lutions on how to solve those problems (regulatory and non-regulatory). NOAA views this
                    SAC input@ as well as those from. other agencies and the public, as extremely unportant in shaping
                    Sanctuary policy. NOAA disagrees, however, that it must first seek "unanimous approvar' by the
                    SAC before it could ever consider issuing a regulation. The SAC is an advisory body whose role
                    is to provide advice and recommendations to the Sanctuary'Manager on policy issues, including
                    regulation. Unanimous approval is not necessary and is unrealistic given the broad spectrum of
                    interests represented on the SAC.   .NOAA will consider the advice and recommendations of the
                    SAC, as well as comments received during the general public comment period on a proposed
                    regulation, to evaluate whether to proceed with promulgating a new regulation.

                    Mfltat Regulations
                    26.     Comment: The Sanctu      ary program should develop a more detailed definition of habitat in
                    the regulations to clarify how the Sanctuary will interface with other permitting agencies.
                            Response: NOAA's humpback whale habitat definition for the Sanctuary was developed
                    to be consistent with those habitat definitions of the MWA and the ESA. At this time, humpback
                    whale habitat is based on known whale distributions and on those activities and behaviors that
                    occur in these areas. More scientific research.is needed to investigate those specific chemical,
                    physical, and biological components of the marine environment that are truly an important or
                    necessary component for humpback whales before a more precise definition can be proposed.
                    Tbis is also the primary reason the Sanctuary is relying on, and only supplementing, other.
                    authorities that regulate discharges and alteration of seabed activities.
                    As     viously noted in an earlier response, the Hawaii Sanctuary is currently developing MOUs
                        pre
                    with relevant Federal and State agencies to more clearly define the types of permits'the Sanctuary

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                 Hawaiian Islands Humpback Whale.                                   Appendix A: Responses to Comments
                 National Marine Sanctuary

                 would review and specific procedures for Sanctuary review and comment. The draft MOUs are
                 included in Appendix E of the FEISM.

                 Regmlatory Alternatives

                 27.     Comment: New regulations are not needed and NOAA should focus on research and
                 education only.

                         Response: NOAA disagrees.          Resource protection is the primary goal of the National
                 Marine Sanctuary Program and NOAA, as a co-manager in partnership with other Federal and
                 State agencies, must be able to provide adequate protection for those resources. NOAA' has
                 determined that a national manne sanctuary must have some minimum level of regulation as part of
                 a Sanctuary's management regime, primarily to protect Sanctuary resources. As detailed in earlier
                 responses, NOAA explained why additional protection is needed for humpback -whales and their
                 habitat, and how essentially iricorporating certain existing regulations into the Sanctuary
                            nt regime adds more protection. By having no direct role or authority to manage
                 resources of the Sanctuary, NOAA would not- be able to fulfill the responsibilities imposed by
                 Congress in the HH*4MSA to comprehensively manage and protect the Sanctuary and its primary
                 resources, the humpback whale and their habitat

                 Furthermore, NOAA would be constrained in its ability to expend Sanctuary resources to enhance
                 enforcement of these existing regulations if it did not, at a minimum, incorporate certain existing
                 restrictions as Sanctuary regulations. Such enhanced enforcement is an integral component of the
                 Sanctuary management regime's protective measures, and is consistent with the overall
                 recominendations contained in the Hawaii Ocean Resources Management Plan (ORMP).

                 Like research and education, regulation and enforcement are management tools necessary to protect
                 Sanctuary resources. Further, additional Sanctuary resources could be wisely spent to enhance
                 existing enforcement efforts by NUFS, the State Departmezit of-Health (DOH), or DLNR. Such
                                could be in the form of funding for educational materials about what protective
                 regulations currently exist for the humpback whale'and its habitat, for convening workshops for
                 ocean users to discuss enforcement activities, or for funding research to detemiine adequacy of
                 enforcement actions. Furthermore, the Sanctuary -Program is examining the feasibility of funding
                 additional monitoring or enforcement positions within DOH and DLNR.

                 28.     Comment: NOAA should support compliance with existing regulations.
                         Response: NOAA agrees, and has identified this alternative as the preferred regulatory
                 alternative. NOAA believes this regulatory alternative will best allow the Sanctuary to fulfill its
                 responsibilities to protect Sanctuary resources without unnecessarily duplicating existing Federal
                 and State agency rules and regulations that provide protection (directly or indirectly) to humpback
                 whales or their habitat. This alternative also addresses the concerns raised regarding additional
                 Sanctuary regulations and permits. The Sanctuary regulations have no requirements to obtain
                 separate Sanctuary permits to conduct otherwise prohibited activities.
                 29.     Comment: NOAA should not supplement existing regulations because there is a real
                 potential for future and more stringent regulations, and for higher fees, fines, and penalties..
                         Response: NOAA disagrees. The final Sanctuary regulations are limited 'in scope to
                 essentially incorporating those existing Federal and State regulations that provide protection to the
                 humpback whale and its habitat. It is impossible for NOAA to predict whether new regulations
                 will ever be needed or if they will bemore stringent. The procedures for issuing new regulations,
                 however, will involve broad public input and gubernatorial review (see response #24).

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                  Appendix A: Responses to Comments                                    Hawaiian Islands Humpback Whale
                                                                                              National Marine Sanctuary

                  NOAA has never proposed any mandatory user fees for the Sanctuary, so there will be no added
                  fees for marine users other than any fees that are already being assessed by other Federal, State,
                  and county agencies. Further, in 1996, the BRINBA was amended, in part, to prohibit NOAA
                  from instituting any user fee under the BDIMSA or NMSA for any activity within the sanctuary or
                  any use of the Sanctuary or its resources.
                  To alleviate the public's concern that any violation of a Sanctuary regulation will result in the
                  assessment of the maximum $ 100,000 civil penalty, NOAA's Office of General Counsel is
                  developing a civil penalty schedule for the Sanctuary, which will be made publicly available. The
                  civil penalty schedule will identify the ranges of fines that could be assessed - for violating
                  -Sanctuary regulations, taking into account such factors as number of prior violations and the
                  -severity or type of violation.

                  30.     Comment: NOAA should adopt           comprehensive regulations to protect the humpback
                  whale and its habitat. Since the MMPA and ESA are currently being watered down, the Sanctuary
                  should have independent regulations to provide supplemental protection.

                          Response: Wbile NOAA agrees that a complete suite of independent Sanctuary
                  regulations and permits may provide greater protection for humpback whales, it also recognizes the
                  concerns raised by other Federal, State, and county agencies and marine users for duplicative laws
                  and permitting processes. Because this Sanctuary protects the humpback whale and it's habitat,
                  already protected by other Federal and State authority NOAA has attempted to craft a resource
                  protection plan that does not add unnecessary regulation, permits, or time requirements to an
                  already complicated and overburdened system.          As - such, NOAA believes that working.
                  cooperatively with other agencies will best allow NOAA to achieve its limited resource protection
                  goals while minimizing its impact on other agencies and Sanctuary users. If significant changes to
                  existing authorities occur, NOAA may re-evaluate the Sanctuary regulations to determine whether
                  they should be amended.

                  31.     Comment: Any Sanctuary regulatory alternative (alternatives 664,99 "5," and "6") that
                  allows the Sanctuary to issue independent permits is good as long as the logistics of permit review
                  are maintained and the whales are actually getting adequate attention and protection.
                          Response.- Permits only provide additional protection for resources if the permit review
                  procedures are followed, monitored, and evaluated over firne. Throughout this process, NOAA
                  repeatedly received comments and information from Federal, State, and county agencies and the
                  general public that Hawaii already has too many separate permit requirements and that the real
                  problems lie in monitoring and enforcing violations of existing permits and regulations. As the
                  majoeity of the Sanctuary lies in State waters and because NOAA is essentially, only incorporating
                  existing prohibitions and restrictions as Sanctuary regulations, NOAA is not adding any additional
                  Sanctuary permit requirements, but will work within the existing permit review processes to
                  ensure: that humpback whales and their habitat-are considered and that adequate monitoring and
                  enforcement of these permits occurs.
                  32.     Comment: NOAA should adopt strict regulations on marine -users and activities to protect
                  humpback whales and their habitat so that it has direct authority to provide more protection for
                  humpback whales and a greater ability to prevent those actions that do harm humpback whales or
                  their habitat.

                          Response: NOAA disagrees.. This regulatory alternative is not presently justified by the
                  available data concerning impacts to humpback whales or their habitat.

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                  Hawaiian Islands Humpback Whale                                   Appendix A: Responses to Comments
                  National Marine Sanctuary
                  33.    Comment: National marine sanctuaries should entail ecosystem based management.
                  NOAA should issue regulations to protect the ecosystem so that it- can. address the true resource
                               needs in Hawaii.

                         Response: NOAA does not agree that all marine resources should be included in the
                  Sanctuary and that comprehensive regulations for ecosystem management be'implemented at this
                  time. NOAA is required by the HINMSA to identify other area and ecosystems of national
                  significance for possible inclusion in the Sanctuary. NOAA agrees that an ecosystem based
                  Sanctuary should be given more consideration, and has detailed a process in Part V(c) of the final
                  Management Plan (Sanctuary Resources), that will involve substantial input from the SAC, other
                  agencies, and members of the public prior to including additional marine resources or ecosystems.
                  This process will clearly identify and clarify what, if any, such resources should be included in the
                  Sanctuary and what role the Sanctuary should take in their management and protection.

                                    -@N

                  34.    Comment:     The Sanctuary will restrict fishing in HawaiL

                         Response:     NOAA disagrees. The proposed                      plan and regulations for the
                  Sanctuary did not include the regulation of fishing activities. The final management plan and
                  regulations have not changed. Moreover, fishing is not included as an activity listed in the scope
                  of activities in the Designation Document as being subject to regulation. Thus, any regulation of
                  fishing would constitute a change in the term of the designation, as contained in the Designation
                  Document for the Sanctuary, for which the Secretary of Commerce must follow the applicable
                  requirements of. section 304 of the NMSA. Such requirements include providing the Western
                  Pacific Regional Fishery Management Council (WESPAQ with the- opportunity to determine if
                  fishing -regulations are necessary and if so, to draft such- regulations for the Sanctuary. NOAA
                  would also consult with the State and the SAC, as well as the fishing industry to determine an
                  appropriate course of action to address concems over impacts to Sanctuary resources from fishing
                  activities. Further, NOAA would be required. to solicit public comments, conduct at least one
                  public hearing, and prepare a Supplemental EIS. Finally, the Governor of Hawaii would have the
                  ability to review and veto the amendment to the Designation Document and new Sanctuary
                  regulation before it can take effect *in State waters.

                  All fishing activities in Fedeml waters are managed by WESPAC and NUFS, and in State waters
                  by the Hawaii Department of Land and Natural Resources (DLNR). 'There is little evidence to
                  indicate that humpback whales extensively feed while in Hawaiian waters (though opportunistic
                  feeding may occur). As such, whales and fishermen do not extensively interact, or at least, at a
                  level necessitating the creation of Sanctuary regulations governing fishing activities. While
                  fishermen, as well as other marine users, are subject to the existing NMFS regulations prohibiting
                  approaches closer than 100@yards, current enforcement data confirms this relatively low level of
                  disturbance as fishermen have never been cited for huassing a whale in Hawaii. In fact, most
                  fishermen fish in areas that do not have high whale concentrations because of claims that whales
                  scare the fish away.

                  The Hawaii Sanctuary recognizes the importance of fishing for livelihood and enjoyment in
                  Hawaii. Additionally, the Sanctuary recognizes the importance of protecting Native Hawaiian
                  fishing and gathering rights and will work to ensure these are not unnecessarily impacted by new
                  regulations.

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                      Appendix A.- Responses to Comments                                      Hawaiian Islands Humpback Wbale
                                                                                                      National Marm Sanctuary

                      3 5. Comment: Tbe Florida Keys National N[arine Sanctuary is proposing to have
                      replenishment zones and that will restrict fishing - Hawaii will be nexL

                              Response: Each of the 12 National Marine Sanctuaries protects different
                      resources and requires a different set of               tools to prow those resources, especially if
                      they are developed to complement existing Fi-deral, State, and local agencies. The Florida Keys
                      National NWrine Sanctuary and the Hawaiian Islands Humpbadc Whale National Marine Sanctuary
                      are: very different types of sanctuaries, and as such, have very different               regimeL The
                      Florida Keys Sanctuary protects the entire ecosystem, from seagrass beds to sandy bottoms to
                      coral reefs. - 1-he Florida Keys National Marine Sanctuary and Protection Act required NOAA to
                      consider zoning as a  management tool for that sanctuary and, consequently, NOAA is proposing a
                      zoning approach to resource protection, including certain zones that restrict fishing activities.
                      NOAA is not proposing a zoning approach for the Hawaii Sanctuary, nor is it proposing to
                      regulate fishing (see response # 34). Further, for my new regulation, including: zoning
                      restrictions, the Governor of Hawaii will have the ability to review and approve such regulation
                      before it can take effect in State watem

                      36. Comment: Civil penalties* implies an "all or nothing" approach to enforcemenL                    The
                      potential economic consequences of scaring boatm with excessive fines should be 'noted. The
                      firte structure should be expanded to include degrees of violations, both intentional and
                      unintentional. The inadvertent accident of a well-meaning citizert should not be the grounds for a
                      severe penalty. Who will develo the penalty structure? What public review process will the
                      penalty structure go through. The 1100,000 maximum tential fine is scary to ocean users. The
                      Sarictuary needs to clarify what maximum fines are for       4=- types of violations.

                             Response: The civil penalty section of the Hawaii Sanctuary regulations (�922.186)
                      dwicribes the maximum statutory civil penalty, $100,000, thait can legally be assessed for a
                      violation of the. NMSA, HINMSA, or any regulation or permit issued under those laws. A civil
                      penalty schedule for the Sanctuary with recommended minimum and maximum penalties will be
                      developed by the NOAA's Otfice of General Counsel for Enforcement and Litigation with input
                      from the Offf= of Law Enforcement in consultation with the Sanctuary program. The schedule
                      wiII set forth x range of civil penalties that could be assessed for a violation - of each Sanctuary
                      prohibition, talang into account aggravating and mitigating factors such as prior violations and the
                      seventy of the violation. The civil penalty schedule will be made publicly. available and will be
                      similar to other penalty schedules that are presently available for other sanctuary sites . (e. g. , Key
                      Largo and Looe Key). This schedule should alleviwe concerns over the maxi'muni potential
                      penalty being assessed for minor infmctions of the law.

                      %Wties for re        .    established under the NMSA are created under civil law and therefore
                      dif fer ffirrom   of those established under odw Federal/State jurisdictions, within the Sanctuary
                      (those established nnd criminal law). This will have both positive environmental benefits and
                      overall positive socioeconomic benefits for the SanctuM. The resources of the Sanctuary will
                      receive a greater level of protection by providing civil authority to other agencies through cross-
                      deputization,               of regulations is best fa.cilitated by agencies cross deputizing to enforce
                      civil penalties.

                      Civil authority and coordinated enforcement under the NMSA have positive socioeconomic impacts
                      on society in general in that there are cost savings to the public when agencies can share authorities
                      and combine human and material resources. The Sanctuary regulations provide supplemental civil
                      penalty options. In some cases, civil may be more appropriate than cdminaL In some cases, use

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                  Hawaiian Islands Humpback Whale                                      Appendix A: Responses to Comments
                  National Marine Sanctuary
                  of both civil and criminal may be appropriate. The resources can be better protected when there are
                  more options for individuals enforcing the regulations. This, in turn, should lead to greater
                  environmental and socio-economic benefits.

                  Civil authority lends itself more fively to an educational and interpretive approach to enforcement
                  of regulations in National Marine Sanctuaries. Simply the message that something is a Sanctuary
                  violation is all that is needed to achieve compliance from the vast majority of Sanctuary users. This
                  concept underscore of the most important goals of a Sanctuary enforcement program - to obtain
                  through education, voluntary compliance with regulations protecting (directly and indirectly)
                  humpback whales and their habitat.

                  Many commenters have expressed concern about the discretion of enforcement officers in handling
                  violations. Such discretion is applied on a case-by-case basis and, as a result, most violations are
                  addressed through written or verbal warnings. Civil penalties are recommended by the NOAA-GC
                  enforcement attorney upon completion of an investigation by the enforcement officer and review of
                  the case specifics., and will be guided by the Sanctuary civil penalty schedule.

                  37.     Comment: The Sanctuary brings the added potential for people to get their vessels seized.
                          Response: In addition to vessel seizure provisions contained within the ESA, the
                  MMPA, and other fishery, customs, and boater laws, the NMSA also contains provisions that
                  authorize vessel seizure in connection with or as a result of any violation of the NMSA or the
                  implementing regulations for the Hawaii Sanctuary. However, it is unli ly that NOAA would
                  seize someone's vessel for violating the humpback whale approach and harassment regulations
                  unless seizure is necessary because the violation was particularly egregious, or if there was a risk
                  the violator intended to leave Hawaiian waters.

                  38.     Comment: A greater enforcement presence is not justified in @the Draft EISIMP.

                          Response: NOAA disagrees. Throughout the scoping and public meetings, the issue of
                  enforcement was raised repeatedly. Many individuals noted that the existing laws protecting
                  humpback whales and their habitat were adequate, but that the enforcement of those laws was
                  insufficient. With respect to the notion of enhanced enforcement, many factors relating to marine
                  enforcement in Hawaii changed during the development of the Draft EIS/MP. First, faced with a
                  fiscal crisis, the State of Hawaii eliminated their Marine Patrol division from within the Departrnent
                  of Public Safety. Though 18 of the 43 enforcement personnel positions have been transferred to
                  DLNR, there has been a net loss of 25 enforcement personnel throughout the State. In addition,
                  the NUFS Office of Enforcement (NMFS-OE) has cut the number of enforcement personnel in
                  Hawaii to three officers. This past year, NMFS-OE, faced with budget and staffing shortfalls,
                  eliminated their presence on Maui during the whale season. This reduction ftuther hampers
                  NUFS's ability to adequately enforce ESA and NIMPA measures. The ability of these existing
                  laws to continue to protect the endangered humpback whale and its habitat is greatly compromised
                  when enforcement is reduced to such a great extenL NOAA believes that the Sanctuary may
                  provide a mechanism to leverage more resources for increasing marine enforcement in Hawaii
                  closer to the level that existed prior to the budget cuts at both the State and Federal levels. Further,
                  NOAA can provide for coordination among the remaining enforcement entities to more effectively
                  and efficiently utilize the limited resources.
                  39.     Comment: Since user fees, penalties, and fines collected under the Hawaii Sanctuary are
                  credited back to the Sanctuary program, there is more incentive for Sanctuary management to
                  enhance revenues through enforcement actions. The general public is afraid of overzealous
                  officers out to make money for the Program.

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                    Apix-.ndix A: Responses to Comments                                    Hawaiian Islands Humpback VVIWe
                                                                                                   National Marine Sanctuary

                            Response: NOAA does not view civil penalties as a method to enhance appropriations.
                    The National Manne Sanctuary Program is developmg new means of revenue enhancement,
                    including licensing merchandise,' soliciting donations, and other voluntary methods.               The
                    Profprarn's philosophy is that such measures are much more effective than attempting to increase
                    program funding through increased enforcement action and penalties. The authority to retain civil
                    penalties for use in managmg and improving the Sanctuary ensures that monies obtamed for
                    violations of the HINMSA, NMSA, or Sanctuary regulations may be used directly for ftnther
                    educational outreach and research efforts, rather than being returned to the U.S. Treasury.
                    Further, the Sanctuary Program in Hawaii will not have its'own independent enforcement
                    pres-mce. Enforcement of Sanctuary violations wiR be carried out through NMFS-OE, a separate
                    entity within NOAA. Consequently, any- perception that NMFS-OE would carry out enforcement
                    in order to increase Sanctuary Program fiinding should be minimal.

                    40.     Comment: The Sanctuary should be used for research and education only -- not to
                    enforce existing regulations.

                            Response: NOAA disagrees. Like research and education, regulation and enforcement
                    are management tools necessary to protect Sanctuary resources. Further, additional Sanctuary
                    resources could be wisely spent'to enhance existing enforcement efforts by NMFS, the State
                    Dep.-utmerit of Health (DOH), or DLNR (see response #38). Such enhancement could be in the
                    form. of funding for educational materials about what protective regulations currently exist for the
                    humpback whale and its habitat, for converung workshops for ocean users to discuss enforcement
                    activities, or for funding research to determine adequacy of enforcement actions. Furthermore, the
                    Sanctuary is examining the feasibility of funding additional monitoring or enforcement positions
                    within DOH and DLNR.

                    41.     Comment: Local boat operators are responsible for self-policing. There is no need for
                    addildonal enforcement since there are- few interacbon problems.

                            Response: NOAA recognizes that Hawaii's boat operaitors; are some of the most
                    responsible in the nation, if not the world. And, based on the limited number of citations issued by
                    NMF`S over the past few years, there appears to be but a few interaction problems between vessels
                    and humpback whales in Hawaii's waters. However, that self policing results in fewer violations
                    does not necessarily obviate the need for additional enforcement. Moreover, the Sanctuary is also
                    responsible for protecting the humpback whale's habitat. As such, additional enforcement of
                    habitat regulations will facilitate the dfforts of local State enforcement agencies such as DOH or
                    DLNR- Such an increase in enforcement is also called for in the ORMP, which encompasses the
                    entire marine ecosystem of the main Hawaiian Islands, and claims that the enforcement of existing
                    regulations is one of the greatest resource management needs (see response #100).

                    42.     Comment:     Sanctuary should be administered on a year-round basis.
                            Response: NOAA agrees. Although humpback whales are only present in Hawaii's
                    waters for about six months each year, their habitat and threats to their habitat need to be addressed
                    on a year-round basis. In addition, NOAA believes that long-term habitat monitoring, education,
                    outreach, and coordination with other agencies needs to happen on a year-round basis to ensure
                    comprehensive resource protection.

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                43.     Comment: If the final Sanctuary boundary includes areas on all islands, then each of the
                islands should have a contact person so that all citizens have equal access to Sanctuary resources
                and management.

                        Response: NOAA's goal is to have Sanctuary liaisons or contacts on all the major islands
                within the Sanctuary's boundary. In addition,, the SAC has representatives from all the counties
                and nearly every island. The SAC will be encouraged to coordinate various user groups and
                interests to ensure that local concerns are discussed and addressed (see responses #53-55).

                44.     Comment: NOAA should have a mixture of Federal and State agencies and private sector
                citizens manage the Sanctuary.

                        Response: NOAA believes that the day-to-day management of a Sanctuary should be
                made by. the on-site Federal Sanctuary Manager and his or her staff. To allow for public and
                agency input into the management of the site, however, NOAA has created the SAC. The SAC
                provides advice and recommendations to the Sanctuary Manager and NOAA on the management of
                the site, and is a mixture of Federal, State, and nongovernmental citizens, representing a number of
                varied and diverse interests in Hawaii. The SAC provides recommendations on various
                management issues, including recommendations on education, research, regulations, enforcement,
                and other funding priorities. Additionally, SAC members) may form working groups with island
                representatives and other members of the public to keep appraised of local issues and concerns
                regarding the Sanctuary. All SAC meetings are open to the public and the public may participate in
                agenda items or ask to have certain issues addressed if approved ahead of tim by the SAC Chair
                and the Sanctuary Manager (see responses #53-55).
                45.     Comment: The State of Hawaii or county governments should manage the Sanctuary.
                        Response: The proposed boundaries of the Hawaii Sanctuary encompass waters of both
                Federal (beyond three nautical miles) and State (shoreline to three nautical miles) jurisdiction. As
                such, it is imperative that the Sanctuary have sufficient management and regulatory jurisdiction
                over all of these waters to ensure that Sanctuary resources are fully protected. The counties or the
                State do not have jurisdiction to manage Federal waters and as such, the Sanctuary is best managed
                through a single Federal agency; NOAA. The Hawaii Sanctuary, however, acknowledges the
                existing Federal and State agencies that have management jurisdiction in or near the Sanctuary, and
                is developing cooperative partnerships and MOUs to clarify the role of each agency vis a vis the
                Sanctuary to enhance coordination (see response #20). In addition, the Sanctuary Manager may
                obtain advice and recommendations from the 25 member SAC on the management of the Sanctuary
                (see responses #53-55).
                46.     Comment: There is fear that the Sanctuary will be managed or at least major decisions
                affecting local sanctuaries will originate from Washington D.C. Local citizens do not have any
                control over these decisions.

                        Response: Each individual National Marine Sanctuary is managed by the on-sitte
                Sanctuary Manager. The on-site Manager and other staff make day-to-day decisions concerning
                planning, managing, implementing, and funding site priorities. The on-site Manager may obtain
                advice and recommendations from the 25 member SAC on management of the site, including
                research, education, regulations, enforcement, and funding priorities. The Hav@aii Sanctuary is
                part of a national program, and certain policy issues are reviewed by the headquarters office to
                ensure consistency among the various sites, when appropriate. The headquarters office also
                reviews policies generated from the sites and provides technical assistance when possible. Certain
                program-wide policies are also developed at headquarters, but with extensive input from the
                individual sanctuary managers. Funding comes from the headquarters office, based on the
                recommendations of the individual site and regional managers.

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                                                                                                    National Marine Sanctuary

                  47.      Comment:         How will the Sanctuary         accomplish comprehensive protection and
                  management of the humpback whales and their habitat.

                           Response: NOAA intends to comprehensively manage and protect humpback whales
                  primarily through coordination with other agencies and the public. The Sanctuary is proposing to
                  essentally incorporate certain existing regulations that protect humpback whales and their habitat
                  into the Sanctuary         9-       Plan. The Sanctuary is working with relevant Federal and State
                  agencies to develop MOUs to clarify how the Sanctuary will interface with their permit review
                  processes to ensure that humpback whales and their habitat are being adequately considered. In
                  addition, the Sanctuary will work closely with the. SAC, and those working groups and
                  subcommittees set up under the SAC, to identify concerns and policy issues and to coordinate the
                  implementation of the Sanctuary Management Plan. The SAC, and thus the Sanctuary, will evolve
                  into being a true public and agency sounding board where issues can be raised and solutions
                  discussed in an open, structured forum. This form will become an effective tool to facilitate an
                  ongoirig dialogue between the existing resource management agencies and the public, leading to a
                  resource Management that is responsive to the public and agency needs.
                  48.      Comment: The Hawaii Sanctuary is the only single-species sanctuary in the national
                  systern. This is not in accordance with the mission of the program and it sets a bad precedent.
                           Response: While the Hawaii Humpback Whale National Marine Sanctuary is the only
                  National Marine Sanctuary focused solely on a single, biological species, it is not the only single
                  resource Sanctuary in the national system. The U.S.S. Monitor National Marine Sanctuary was
                  established solely to protect the wreck of the famous Civil Wai Ironclad.

                  In addition, the National Marine Sanctuary Program was established to be flexible in its approach
                  to ocean anagement. There is no one management approach or standard set of regulations that
                  fits all sites. NOAA develops site specific management plans that are based on the uniqueness of
                  each sanctuary area, and on the area's existing management entities. The Hawaii Sanctuary clearly
                  fits the. resource protection and management mandate and mission of the Program- NOAA does
                  not believe that the Hawaii Sanctuary has set a negative precedent for the Program, but that it
                  merely represents NOAA's commitment to developing site-specific management plans tailored to
                  the needs of the local community and its resources.
                  Furthermore, while the Congressional        mandate for the Sanctuary is to focus on the humpback
                  whale and its habitat, it also allows for the identification of other resources of national significance
                  for -possible inclusion the Sanctuary. This creates the. opportunity for a more comprehensive
                  Sanctuary, and NOAA has developed a process in the Part V of the FEISIMP to address this issue.
                  49.      Comment: The ocean is an interrelated system. Focusing on one s
                                                                                                        ,pecies is not cost
                  efficient or what the State needs. A humpback whale sanctuary -does not address other, more
                  important and. pressing marine issues in Hawaii as it takes away attention from these resources.
                  Humpback whales are only seasonal visitors to Hawaii and are not representative of Hawaii's
                  unique marine ecosystem.
                           Response: NOAA agrees that all chemical, physical, and biological components of the
                  marine environment are ultimately interrelated, and that a healthy marine environment is needed for
                  all organisms to live and reproduce. The qualities of the marine habitat that are required to support
                  the humpback whale are also needed to sustain healthy fish stocks, coral reef ecosystems, and
                  human recreation. NOAA believes that the knowledge and research gained from investigating
                  components of the humpback whale's habitat will ultimately help other resource managers in their
                  efforts to protect and sustain other marine environments. Any resource protection measures that

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                National Marine Sanctuary

                improve the habitat for the humpback whale will subsequently improve           the habitat for other
                organisms living there as well.

                NOAA fixther believes that a sanctuary that focuses on a particular species and its habitat does not
                divert attention away from other marine issues, but effectively creates, a forum. in which these other
                issues can be addressed. The Sanctuary will ultimately increase local resident and visitor
                awareness of not only humpback whales, but also of Hawaii's unique marine environment. In its
                efforts to ensure protecti?n of the humpback whale and its habitat, the Sanctuary Program will
                work with existing agencies and groups to identify problems and issues that affect the entire marine
                ecosystem. This ecosystern* will benefit from our increased knowledge and research, and better
                coordinated management. For example, the Hawaii Sanctuary Program has co-funded a project
                designed to better address the water quality issues and the algal blooms off of Maui as well as to
                develop educational material designed to teach people about Hawaii's unique marine habitat.
                Additionally, NOAA has included a public process in the Sanctuary Management Plan to identify,
                and possibly include, other resources and ecosystems of national significance in the Sanctuary (see
                response #50).

                50.     Comment: NOAA should include other marine species such as sea turtles, Hawaiian
                monk seals, coral reefs, fish, seabirds, and other endangered species as resources of the
                Sanctuary. NOAA should adopt an ecosystem-based sanctuary to address true resource
                management needs in Hawaii.

                        Response: NOAA has included in the Final Management Plan (Part V) a process for
                identifying, and possibly including in the Sanctuary, other resources and ecosystems of national
                significance. The addition of other resources and ecosystems will require a lengthy public and
                SAC review process. Should this public process identify additional resources and management
                measures to include within the Sanctuary's management purview, the Sanctuary would need to
                develop a Supplemental EIS/MP, and hold additional public hearings. Further, the Governor of
                Hawaii would have the authority to decide whether those resources and - associated management
                measures (e.g., regulations) would be included in State waters of the Sanctuary.
                51.     Comment: Water quality is a major management concern in Hawaii. The Sanctuary
                should protect nearshore and coastal habitats to identify water quality issues and other related
                management problems (coral reef and fish declines). The Sanctuary should approach water quality
                monitoring of non-point source pollution in a comprehensive manner and in cooperation with
                existing Federal, State, county, and community efforts.
                        Response: NOAA agrees. The Sanctuary's Management Plan was developed to provide
                protection for humpback whales wd their habitat. The preferred regulatory alternative provides
                supplemental protection for the whale's habitat and the Sanctuary will review and comment on
                permit applications that may impact water quahty@ In addition, the boundary of the Sanctuary
                extends from the shoreline out to the 100-fathom. isobath and includes most nearshore and coastal
                areas. Coastal waters comprise an important component of the humpback whale's habitat,
                especially newborn calves, and the Sanctuary will work with Federal, State, and county agencies
                and the general public to ensure this habitat can sustain humpback whales and other marine
                resources. The Sanctuary will work with relevant agencies and marine user groups to develop
                and/or supplement education, research, long-term monitoring, and enforcement programs so that
                water quality is maintained or improved. As an example, the Sanctuary has worked with DOH and
                Maui County to co-sponsor a much needed water quality monitoring project for the entire island of
                Maui. This project utilizes volunteer citizens through the county and was a priority for both the
                West Maui Watershed project as well as the State of Hawaii, DOH. (See responses #18-19, #22,
                and #90.)

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                                                                                                         National Marine Sanctuary

                      52.      Comment: Depletion of bottomfish is a more serious problem that humpback whales.
                               Response: NOAA acknowledges that other marine resources in Hawaii are facing
                      depletion or are damaged and need management attention. The Sanctuary will support research and
                      long-term monitoring on the humpback whales' habitat which in turn may be used by other
                      resource anagement agencies. Fisheries management is not, however, a component of the
                      Sanctuary's management At this time, bottomfish depletion is an issue that is better addressed by
                      WESPAC and DLNR.

                                                               "ily; @, 0J s@ 4,
                                                                            UT,      4-19-W-f-m- R-1471,77JEWRIMMMM

                      53.      Comment: NOAA should establish a formal advisory group to help develop the Final
                      Management Plan and to help manage the site once the Final Plan is approved. This group should
                      have real-decision making authority.
                          @ Response: NOAA has established a Sanctuary Advisory Council (SAC) to. provi'de
                      advice and recommendations to the Sanctuary Manager and NOAA on the continued development
                      and management of the site. In February 1996, NOAA solicited names for membership to the
                      SAC. Through a lengthy process outlined in its charter, the SAC was selected and has been
                      meeting since March 1996 to provide advice to SRD 'on comments received on the Draft EIS/MP.
                      The: SAC has formed subcommittees to focus on issues such as administration, regulations, and
                      the Sanctuary's boundary. The SAC is expected to also form working groups to address research,
                      education, and county-specific concerns. NOAA values this advice and would not deviate from it.
                      without good reason. However, the SAC is an advisory body only'and has no authority to
                      independently operate, or make management decisions. NOAA must ultimately be responsible for
                      management decisions and has final decision-making authonty.
                      94. Comment: NOAA should establish a community-based advisory                          panel within each
                      county.

                               Response: In response to public comments, and to facilitate more               dialogue with the
                      community, representatives from each of Hawaii's four counties sit on the               SAC and will be
                      encouraged to set up county-specific working groups that will meet in each of the four counties.
                      55.      Comment: The SAC should have adequate representation of the different types of ocean
                      users. Include commercial transport industry representative as permanent member of SAC.
                               Response: The Hawaii SAC consists of 25 members, including ten government and 15
                      non-government representatives. NOAA hu limited membership to 25 to ensure the SAC is
                         iiageable and provides meaningful advice. The 15 non-government seats include representatives
                      of the following groups or interests- Honolulu, Kauai, Maui -and Hawaii counties; conservation; -
                      fishing; whale watching; business/commerce; education; tourism; ocean recreation; research; Native
                      Hawaiian; and two citizen-at-large seats. The Sanctuary Program realizes that there are many more
                      agencies and individuals who would like to be a part of the SAC, but believes there is a broad
                      representation of the major interests and Sanctuary users.             Each of the group or interest
                      representatives will be encouraged to dialogue with other members of their community.
                      NOAA has attempted to facilitate dialogue with the commercial transport industry by'replacing the
                      Department of Education seat (which was declined) with a Department of Transportation seat. At
                      this time the 15 non-government seats are already occupied. This does not preclude interested
                      members of the commercial shipping industry, for example, or other members of the public from
                      participating in SAC meetings (all meetings are open to the public) or submitting to the Chair of the

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                Hawaiian Islands Humpback Whale                                  Appendix A: Responses to Comments
                National Marine Sanctuary

                SAC or Sanctuary Manager Sanctuary related issues that they would like raised and discussed at
                meetings.

                56.    Comment: Oppose the SAC since it has no real management power and is only a rubber
                stamp body-
                       Response: NOAA views the SAC as a very important component of the Sanctuary.*
                Established pursuant to Section 315 of the NMSA, the SAC is a formal body of the Hawaii
                Sanctuary that is officially authorized to provide advice and recommendations to the Sanctuary
                Manager and NOAA. The SAC functions as a forum that brings together various marine user
                groups and resource management agencies to discuss various local issues concerning humpback
                whales and their habitat. NOAA weighs the SAC recommendations very careMy and considers
                their input crucial to the local on-site Manager and NOAA. Although the SAC normally will
                interact with the on-site Manager, results from all the meetings are relayed to the headquarters
                office to ensures that local concerns are considered at that level as well.

                The Hawaii SAC members take their roles seriously, as evidenced by their level of involvement
                and participation, and their formation of working groups. Community involvement is critical to the
                success of the National Marine Sanctuary Program, which is a program that actively solicits
                community input and recommendations as part of the continuous management process. Sanctuary
                Advisory Councils do not rubber stamp - NOAA policy, and in fact, provide valuable input in
                helping NOAA shape policies before they are finalized and implemented (see response #53).
                Those sanctuaries with established Sanctuary Advisory Councils have greatly benefited from their
                assistance.

                                                                     A 4
                                                                         4

                S7.    Comment: Despite years of research, neither NOAA nor my of the whale researchers
                have been able to tell the public exactly how many humpback whales are in Hawaii.

                       Response: Determining the exact number of humpback whales in Hawaii is a difficult
                task for a number of reasons. First, humpback whales are not static animals: they spend most of
                their time underwater, they continually swim to new locations, they are distributed over the entire
                main Hawaiian Islands making individual identification difficult (and expensive), and there is some
                mixing of the Hawaii sub-population with the Mexico and Japan humpback whale sub-
                populations. Second, there has been relatively little government research monies available to
                conduct the needed statewide survey efforts. Over the years, however, many different private
                research teams have managed to obtain funding to study humpback whales. These teams have
                used a variety of different methods to estimate the whale population, which has made data
                comparison difficult. As a result, researchers can only provide an estimate of the Hawaii
                humpback whale population. In the last five years, there have been several statewide collaborative
                efforts to study the whale population dynami@s. These studies will need to continue indefinitely so
                that researchers and resource managers better understand the population dynamics in Hawaii.

                Although exact figures for Hawaii's humpback whale population are not available, researchers
                have indicated that the number of whales wintering in Hawaii has been increasing over the last ten
                to fifteen years. At present, the estimated population -of humpback whales in Hawaii ranges
                between 1,500 and 3,000. Better estimates as well as different population transecting techniques,
                however, will provide improved understanding of how many whales are coming to Hawaii each
                year. Part of these population studies have and will be funded by the Hawaii Sanctuary.

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                    Appendix A: Responses to Comments                                     Hawaiian Islands Humpback Whale
                                                                                                  National Marine Sanctuary

                    58.     Comment: Scientific evidence suggests that the humpback whale population is
                    recovering. If so, why is there a need for a humpback whale,Sanctuary?

                            Response: NUTS, and many researchers, have indicated that the humpback whale
                    popigation is showing initial signs of recovery since the 1960s when commercial whaling reduced
                    thei- numbers in the central North Pacific. to about 1,000 animals. Recent estimates put the current
                    central North Pacific population (those that winter 'in Hawaii) in the range between 1,500 and
                    3,OCO whales (see response #57). In order to be considered recovered, NUFS has determined that
                    the population will need to reach approximately 9,000 whales before the central North Pacific
                    Stock of humpback whales can be. considered for removal from the endangered species list.

                    In this regard, there needs to be more research conducted on humpback whale population dynamics
                    (population size, distribution, birth, survivorship and mortality ratest- and degree of mixing with
                    other populations) before conclusive statements can be made about their actual rate of recovery.
                    The California gray whale, also thought to number as few as 1,000 whales after commercial
                    whaling, was recently taken off the endangered species list after its population was estimated to be
                    about 10,000 animals. Since MWA and ESA protection measures were at a minimum for both
                    species, and even more stringent for Hawaii's humpbacks because of NWS approach regulations,
                    dier.- is a question as to why the gray whale population was able to increase nearly eight times
                    faster than the humpback whale population. This question, and many others, still remaiii to be
                    answered. There is no one agency or research group that has all the necessary resources to answer
                    such questions or to even help coordinate such efforts. The Sanctuary, however, through its
                    research and management working groups, can help provide a forurn and the resources necessary
                    for researchers to focus on management related questions. In addition to research, the Sanctuary
                    will work with existing agencies and private sector organizations to supplement education and
                    enforcement programs, and to increase dialogue between the public and the resource management
                    agencies. The Sanctuary provides a coordinating role primarily to protect the humpback whale in
                    the long-term.

                    Unlike the ESA. recovery of the humpback whale is not the end goal of the Sanctuary. The
                    Sanctuary was designated to provide long-term protection of humpback whales and their habitat for
                    future generations to enjoy and the Sanctuary will serve its purpose long after the humpback is
                    taken off the endangered specie's list.
                    .59.    Comment: The research presented in the DEIS/UP is biased and out of date. The
                    information does not justify the boundary selections. NOAA should update the sections on
                    humpback whales.
                            Response:     NOAA has thoroughly investigated the existing published and unpublished
                    research concerning   humpback whales in Hawaii, including the most up-to-date information
                    available. When possible, NOAA has referenced and included the results of researchpublished in
                    peer reviewed scientific journals. Much of the research conducted in the last few years, however,
                    remains unpublished in scientific journals. As a result, NOAA has made numerous efforts to bring
                    Hawaii whale researchers and other marine mammal experts and resource managers together to
                    discuss the current understanding and status of humpback whales and -their habitat, and to identify
                    future research needs. For example, NOAA has used this information as the basis for providing
                    boundary alternatives and, in part, to select its preferred, boundary (see responses #8 and # 15). In
                    response to public comments and to include the most updated information, NoAA will update and
                    restructure the section on humpback whales in the Final EIS/M[P [Part H(B)].

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                  National Marine Sanctuary

                  60.     Comment: More research should be conducted before a Sanctuary is designated as there
                  are too many unknowns.
                          Response: NOAA disagrees. There stiff are many unanswered questions that researchers
                  and resource managers need answered before we can better understand the humpback whale's
                  population dynamics and the effects of human activities on humpback whales. These efforts will
                  require additional resources and coordination, one of the fundamental purposes of the Sanctuary.
                  Resource managers need more Management-related research to help them be responsive to the
                  needs of both whales and humans. Hawaii's marine waters constitute one of the world's most
                  important humpback whale reproductive habitats and is essential for the recovery and continued
                  existence of this -species. Research and long-term monitoring efforts ar%@. crucial elements of a
                  comprehensive management program for this species since there is so much to learn. Congress
                  has acknowledged the importance of these waters and has designated the Hawaii Sanctuary to
                  ensure that research, long-term monitoring, education, and other resource protection programs are
                  implemented and coordinated to protect the humpback whale for future generations.
                  61.     Comment: There is no clear data as to what constitutes humpback whale habitat.

                          Response: NUFS and the research community have stated in past technical consultations
                  that more research is needed to more clearly articulate the chemical, physical, and biological
                  parameters that constitute humpback whale habitat in Hawaii. Research has shown that humpback
                  whales can be found in certain areas in Hawaii year after year in high concentrations. These areas
                  tend to be in waters less.than 100-fathoms deep, though whales, especially single males, can be
                  found in deeper waters. Mothers with calves tend be found in shallower waters, often in the
                  leeward areas of islands. Substrate -may prove to be important for such activities as singing and
                  sound transmission. Researchers have not found much evidence Of whales feeding in Hawaii. All
                  of these reports are consistent with other humpback whale wintering areas. The Sanctuary
                  acknowledges that there is not conclusive data defining specific parameters, of humpback whale
                  habitat in Hawaii, but this will be one of the priority issues the Sanctuary will address through its
                  research program. Despite these information gaps, NUFS and the researchers agree that water is a
                  necessary component for the whale, and that the marine environment around the main Haw
                  waters is needed for breeding, calving, and nursing activities (see response #26).

                  62.     Comment: NOAA should determine if fish or other potential food sources are a critical
                  component of the humpback whale habitat in Hawaii.

                          Response: Humpback whales have been studied in both the Atlantic and Pacific Oceans,
                  and in the northern and southern hemispheres. In general, the migration of whales is thought to
                  represent a seasonal movement between subtropical or tropical breeding grounds and polar or
                  subpolar waters, where intensive feeding occurs in the summer. Little evidence of feeding has
                  been reported in the lower latitudes of the southern hemisphere, and only occasional feeding (fish
                  and zooplankton) has been reported in low latitude areas of the northern hemisphere (Dominican
                  Republic and Baja, Mexico). In Hawaii, there has been only a few reports of feeding: One
                  researcher documented a vertical lunge (feeding behavior) by a subadult whale off Maw (Salden,
                  1989) and other people have reported feeding-like behaviors in the presence of fish. Based on the
                  existing research data and after consulting with whale researchers, NOAA does not believe that
                  these limited observances of opportunistic feeding in Hawaii necessarily make fish or other
                  potential food sources a critical component of the whale's Hawaiian habitat (see responses #26,
                  #34, and #6 1).

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                  Appendix A: Responses to Comments                                     Hawaiian Islands Humpback Whale
                                                                                               National Marine Sanctuary

                  63.     Comment: The Sanctuary should explain how fishing and research activities can impact
                  whales.

                          Response: Hump       back whales migrate to the Hawaiian Islands primarily to engage in
                  breeding, calving, and nursing activities. Although opportunistic feeding has been observed,
                  NMFS and other whale researchers have stated that this is not a common occurrence (see response
                  #62). As such, whales are not likely to interfere with fishing gear, including lines, hooks, and
                  nets (see response #34). Whale interactions with fishing activities is more of a concern in Alaska,
                  where fishermen and whales directly compete for fish resources, and where whales become
                  incidentally entangled in gear There have only been a few reports of humpback whales interacting
                  with fishing gear or nets in Hawaii.

                  Research impacts on whales result primarily from vessel approach and harassment. Often,
                  researchers need to get closer to humpback whales than the 100-yard approach limit allows.    ' These
                  reseaxchers are required to get a research permit from NWS. In deciding to issue the permit,
                  NNU-'S will weigh the benefits associated with a particular research project, in terms of increasing
                  our understanding and knowledge of the humpback whales, with those potential impacts resulting
                  from harassment or injury to the whale. Some research, may also require the scientists to take skin
                  or tissue samples and require more intrusive techniques. NMFS permits contain terms and
                  conditions in its perrnits to minimize the potential for harassment or injury.
                  64.     Comment: NOAA has not provided a clear analysis of potential threats to the humpback
                  whale. How can Sanctuary be justified if the data is inconclusive? There is no significant evidence
                  that current human activities are negatively affecting humpback whale movement, breeding, or
                  calving activities.

                          Response: NOAA has reviewed the existing scientific literature, and consulted with
                  scientific experts concerning potential human. impacts to humpback whales and their habitat. - The
                  scientific litwam has shown that humpback whales can be directly impacted by physical
                  disturbances (approaches and sound), and indirectly by habitat modifications (pollution, nearshore
                  development, disturbing the seabed). There are a number of different human activities diat can
                  elicit physical responses (vessel approaches, overflight, acoustic sound) and a number of activities
                  that can degrade the whales -aquatic environment (discharges, dredging, construction, non-point
                  source pollution). A summary of this information was presented in the DEIS/M?, and has been
                  expanded and updated in the FEIS/UP.

                  In reviewing the scientific literature, NOAA found that there is a need for additional research to
                  determine the degree of impact, if any, of specific human activities on individual whales or their
                  population. This is especially true for the more indirect impacts associated with water quality and
                  is one of the reasons supporting the designation of a Sanctuary in Hawaii. There are many
                  different research and education needs that the Sanctuary will help existing agencies and
                  organizations fill. The Sanctuary can also help coordinate activities and become a venue where the
                  research community interacts with the resource managers and the general public. National Marine
                  Sanctuaries are not necessarily designated because there is an imminent problem or significant
                  threat that currently exists in the local ocean community. More often than not, National Marine
                  Sanctuaries are created in areas with resources of outstanding national significance to ensure that
                  these areas are comprehensively managed and protected for future generations to enjoy. As both
                  the population of humpback whales and humans increase in Hawaii, so too will there be a need for
                  better coordinated management and planning. It is possible that with advice from the SAC, the
                  research community, ahd NMFS that the Hawaii Sanctuary can better identify what factors are
                  favorable or are detrimental t6. the humpback whales and how to best manage human uses within
                  the Sanctuary.

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                  Hawaiian Islands Humpback Whale                                     Appendix A: Responses to Comments
                  National Marine Sanctuary

                  65.     Comment: The Sanctuary should add information about the acoustic environment of
                  whales and other potential sources of impacts on humpback whales. The Sanctuaiy-sponsored
                  research and long-term monitoring programs should focus on potential human-related impacts to
                  humpback whales and their habitat, including: whale displacement or disturbance caused by
                  sound, human approaches and/or harassment of 'whales, direct collision by marine vessels, and
                  pbllutants and pathogens from coastal waste disposal, coastal runoff and development, and causes
                  and consequences of a decline or changes in the ocean environment.

                          Response: NOAA has updateA clarified, and expanded the section describing humpback
                  whales in Part II(B) of the Final Management Plan. This section includes more information about
                  humpback whale distribution, population dynamics, habitat use, the acoustic environment of
                  whales, and those known and potential impacts, resulting from human activities, including sound.
                  The research and long-term monitoring section of the Management Plan has also been reviewed
                  and clarified to be responsive to management needs.

                  The Sanctuary will work with other Federal, State, and county agencies and the SAC to help
                  develop annual research plans that identifies priorities. The SAC will be encouraged to form a
                  research working group that will include members of the existing SAC and other researchers, to
                  provide technical assistance and to develop recommendations to NOAA on research priorities and
                  Sanctuary-sponsored research priorities.

                  NOAA has already undertaken efforts to develop community-based monitoring programs. The
                  Hawaii Sanctuary is working with DOH and the West Maui Watershed Program to support a
                  volunteer coastal water quality monitoring program for the island of Maui. Currently there are.
                  more than 30 beaches that are being monitored. The Maui water quality monitoring project has
                  been renewed for a second year, based in part to the funding available from the Hawaii Sanctuary.
                  Projects like the water quality monitoring project that provide information on the habitat of the
                  humpback whale -will ultimately provide greater understanding of what water quality parameters are
                  needed for the humpback whale's survival. NOAA acknowledges that many commenters stated
                  that water quality is a major issue facing all ocean users -in Hawaii. To that end, the Sanctuary
                  program is committed to working closely and cooperatively with the existing agencies and
                  community-based programs to ensure that Hawaii's marine environment remains healthy and can
                  support a diverse assemblage of species and human uses.
                  66.     Comment: The Sanctuary should play a leadership role in bringing together researchers
                  working on humpback whales.

                          Response: NOAA agrees. A fundamental component of the Hawaii Sanctuary is to
                  support management-related research and long-term monitoring efforts that increase our collective
                  understanding and knowledge of humpback whales, their habitat, and those factors that may
                  negatively or positively impact either one. The Sanctuary will not usurp or suppress ongoing
                  research in the Sanctuary, but rather will provide a forum to bring these many different researchers
                  and resource managers together to discuss humpback whales, knowledge gaps, research priorities,
                  funding opportunities, and when possible, to initiate collaborative research efforts. The Sanctuary
                  will use the expertise and diverse interests of the SAC and its research working group to foster
                  dialogue and coordinate the diverse range of interests. In addition, the Sanctuary will also facilitate
                  efforts to bring together researchers and other technical experts to enhance the collaborative
                  knowledge foundation. For example, the Sanctuary co-sponsored a workshop with NUFS a "to
                  assess research and other needs and opportunities related to humpback whale management in the
                  Hawaiian Islands" in April 1995, that brought together over 75 researchers and resource managers.
                  The Sanctuary will also strive to develop a worldwide database of humpback whale research data,
                  accessible to as many people as possible.

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                  Appendix A: Responses to Comments                                     Hawaiian Islands Humpback Whale
                                                                                               National Marine Sanctuary

                  67.     Comment: All research and monitoring efforts should be benign, non-intrusive, non-
                  invausive and be clearly necessary to protect the overall welfare of humpback whales.

                          Response: NOAA believes that humpback whale research should focus on management-
                  related issues and be conducted with minimal impact to the whales. All researchers that intend to
                  conduct research with 100-yards of a humpback whale must first obtain a research permit from
                  NMFS. . Both NUFS and the Sanctuary Pro@rani will review applications for permits to conduct
                  humpback whale research in or near the Sanctuary, and if necessary, provide conditions to alleviate
                  or mitigate potential impact to the whales or their habitat (see response *70).

                  68.     Comment: What are the means for funding research?

                          Response: Research can be funded in any number of ways. Many researchers'have been
                  conducting research for years by creatively "finding" monies from any number of sources (grants,
                  government agencies, non-profit foundations, donations, fund-raising, whale watching). This
                  source of research money, however, is not stable and varies from year to year. In addition, any
                  one source is usually insufficient to conduct the type of ongoing comprehensive statewide surveys
                  needed to fiffly understand the humpback whale's population dynamics. Other agencies, such as
                  NMY7S, have historically provided limited funding opportunities through Congressional
                  appropriations under the MMPA and ESA. These appropriations, however, am not targeted for
                  humpback whales in Hawaii, and NMFS distributes its funding for research on other endangered
                  species and marine mammal as well. ne Hawaii Sanctuary brings additional Federal monies into
                  Hawaii and provides the opportunity to leverage technical support and finances from other funding
                  sources that are known to support research efforts in international and national marine protected
                  areas.-

                  69.     Comment: The Sanctuary needs to ensure that fimds are available to carry out research,
                  otherwise. the research plan will be ineffective.
                          Response:, NOAA agrees and is committed to directly allocating a portion of the Hawaii
                  Sanctuary budget toward supporting research and long-term monitoring projects in the Sanctuary-
                  The amount of funding for research will be related to the annual Congressional appropriation f6r
                  the Sanctuary program and the annual site budget. If direct Congressional appropriations are not
                  sufficient to implement portions of the Management Plan, the Sanctuary will look toward
                  leveraging additional funds from other agencies and foundations, and other voluntary revenue
                  enhancement methods. Research and education are two of the major components of the Hawaii
                  Sanctuary program and will therefore be priorities for the site. In addition, the SAC and its
                  individual working groups will provide recommendations to NOAA for funding Sanctuary
                  programs (education, research, and management). The Sanctuary Manager will factor in these
                  considerations with the identified Sanctuary's priorities and the annual funding availability.
                  70.     Comment: Legitimate scientists need protection from bureaucracies created to protect the
                  humpback whale@ There are too many hurdles for researchers to jump through and too many
                  measures in research section.

                          Response: Any researcher intending to approach a humpback whale within wo-yards
                  must obtain a research permit from NNTS pursuant to the MMPA. The Sanctuary is incorporating
                  the NAIFS approach regulations as part of the Sanctuary regulatory regime but will not require
                  persons to obtain a separate Sanctuary research permit. The Sanctuary has developed a MOU with
                  NAFS for reviewing applications for permits to conduct research within the'Sanctuary. NMFS
                  will remain the primary point of contact for researchers. All permit applications will be forwarded
                  by NIMIFS to the Sanctuary Program for comments within the public review period. NMFS will
                  continue to issue the permit, but with the Sanctuary Program's concerns incorporated. This
                  Sanctuary review process will be "transparent" to the permit applicant and will not place additional

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                 Hawaiian Islands Humpback Whale                                    Appendix A: Responses to Comments
                 National Marine Sanctuary

                 .burdens or paperwork requirements on the applicant One primary role of the Sanctuary is to
                 facilitate and coordinate research, not hinder it.

                                                                      A
                                                                       I A
                                                                                                      11 NEE=
                 71.     Comment:     The Sanctuary education programs should focus on school education. There
                 is not enough marine education in the schools today.

                         Response: Education is one of the main components of the Hawaii sanctuary. NOAA
                 strongly believes that education at all ages is necessary to increase the local community's
                 awareness and understanding of marine resources, and the need to sustain the environment for all
                 users and persons that enjoy the marine environment. The Sanctuary is committed to working in
                 partnership with existing education organizations, and school districts to develop and implement
                 needed marine education curricula and programs. The SAC will be encouraged to form an
                 education working group. This working group will serve as a sounding board and will help to
                 coordinate those efforts that are ongoing and to assist in developing new education programs as
                 needed.

                 72.     Comment: The        Sanctuary is biased towards humpback whales and =t the other
                 resources and those human users who depend on the marine environment.
                         Response: The Hawaii sanctuary was designated by Congress primarily to p;otect
                 humpback whales and their habitat, and to educate and interpret the relationship of the humpback
                 whale to the Hawaiian Islands marine environment. NOAA was given a clear mandate to promote
                 education among users of the Sanctuary and the general public not only about the conservation of
                 humpback whales and their habitat,,but also about other marine resources in Hawaii. The
                 Sanctuary also recognizes that the Hawaiian Islands have a rich history that continues today for
                 human use of the marine environment, including uses of Native Hawaiian's customarily and
                 traditionally exercised for subsistence, cultural, and religious purposes. The Sanctuary will
                 include elements within the education section of the Management Plan aimed at increasing the
                 general public's knowledge and understanding about the diverse human uses and traditions in
                 Hawaii's marine environment.

                 73.     Comment: The Sanctuary should include a review process in the development of its
                 education program so that it clearly addresses Sanctuary objectives, contains appropriate content,
                 and is unbiased.

                         Response: NOAA agrees. The SAC will be encouraged to form an education working
                 group that includes those interested agencies, organizations, and individuals working on marine
                 education programs. This working group will help provide advice and recommendations to the
                 SAC, which will advise the Sanctuary on identifying, selecting, implementing, and funding
                 Sanctuary education programs. In addition, the working group and SAC will be used to help the
                 Sanctuary develop criteria and program standards for Sanctuary-sponsored education programs.

                 74.     Comment: How will future Native Hawaiian sovereignty rights be impacted by the
                 Sanctuary?
                         Response: The Hawaii Sanctuary is essentially incorporating certain existing restrictions
                 into the Sanctuary Management regime. It is not adding any new restrictions or prohibitions other

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                      Appendix A: Responses to Comments                                           Hawaiian Islands Humpback Whale
                                                                                                          National Marine Sanctuary

                      thaa those already in place, and will not require or issue independent Sanctuary permits or have
                      approval authority over other existing authorities. The Hawaii Sanctuary is committed to
                      recognizing Native Hawaiian uses. One purpose of the HINN4SA is to facilitate uses of Hawaiian
                      =ives customarily and waditionally exercised for subsistence, cultural and religious purposes
                      consistent with the primary objective of the protection of humpback whales and their habitat. Few
                      other Federal laws and programs have language specifically recognizing Native Hawaiian uses.

                      Tlu-. issue of Native Hawaiian Sovereignty rights in Hawaii is still being discussed and debated,
                      and will remainunclear for at least the foreseeable future. NOAA will closely follow the Native
                      Hawaiian Sovereignty movement as it develops and will strive to honor any new rights or
                      privileges granted.

                      The SAC includes a Native Hawaiian representative to ensure that Native Hawaiian concerns and
                      issues, as they pertain to the Sanctuary, are addressed. This representative will be encouraged to
                      facilitate dialogue with other Native Hawaiian sovereignty groups to help the Sanctuary understand
                      and recognize Native Hawaiian uses and rights as they concern the Sanctuary. This dialogue will
                      continue well into the future and it is hoped the Sanctuary can work with the Native Hawaiian
                      community to educate others about the unique aspects of Native Hawaiian culture and uses of the
                      Sanctuary.

                      75.      Comment: All submerged lands are ceded lands, held by the State in trust for Native
                      Hawaiian people. The Federal Government has no jurisdiction over ceded lands. What changes
                      will the Sanctuary impose on submerged/ceded lands?
                               Response:       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, will continue to be held in trust by the State of Hawaii. The
                      Sanctuary will only exist as a co-steward of the Sanctuary resources within the Sanctuary
                      boundary. Should the status of the submerged lands change at some time in the future (i.e., the
                      lands are conveyed to a sovereign Hawaiian nation), the Sanctuary will work with the appropriate
                      entities to redefine its role if necessary.
                      76.      Comment: Why does the DEIS/W. not address Native Hawaiian concerns?
                               Response: The DEISAMP (pages 68-74) described various aspects of Native Hawaiian
                      culture and uses of the marine environment as they relate to the Hawaii Sanctuary. NOAA has
                      expanded and clarified this section in the FEIS/UP (see response #74).
                      77.      Comment:        Native Hawaiians have traditional fishing entitlements that the U. S.
                      Government fails to recognize. Sanctuary should protect Native Hawaiian gathering and fishing
                      rights by helping to restore coastal habitats and fisheries. How will the sanctuary be different from
                      the other parts of the Federal Government? There is no trust and no reason to trust the Federal
                      Government.

                               Response:       The Hawaii      Sanctuary is committed to recognizing traditional Native
                      Hawaiian fishing and gathering uses and is required by the H][NMSA to 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
                      the protection of humpback whales and their habitat. While the Sanctuary and NOAA do not have
                      legal authority to fOrmally Federally recognize Native Hawaiian groups, few other Federal
                      program@, if any, have language specifically recognizing Native Hawaiian uses.
                      The Sanctuary program will continue to seek new partnerships and opportunities to work with the
                      Native Hawaiian community to facilitate and support educational and research projects that will
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                National Marine Sanctuary

                help define and educate others as to the past and present traditional Native Hawaiian subsistence,
                cultural, and religious uses of the marine environment. Hopefully, this information will lead to a
                better understanding and appreciation of the Native Hawaiian culture. The National Marine
                Sanctuary program has experience with traditional Native American and Samoan rights and uses in
                two sanctuaries; Olympic Coast and Fagatele Bay, respectively. Incorporating these traditional
                rights and practices, as well as recognizing those rights identified under Federal law, are identified
                in the management plans of both sites. Additionally, each of the four Federally-recognized Native
                American tribes within the Olympic Coast National Marine Sanctuary has a seat on the Olympic
                Coast Sanctuary Advisory Council. Similarly, the Hawaii SAC has a Native Hawaiian
                representative.

                78.    Comment: Mandatory user fees are inevitable if the Sanctuary is adopted, and will be
                established either by NOAA or by Congress.

                       Response: NOAA acknowledges the near universal public and agency opposition of
                "user fees" to fund and manage individual sanctuaries. NOAA did not propose broad-based
                mandatory user fees in the Draft EISM. Further, in 1996, the HD14MSA was amended, in part,
                to prolubit NOAA from instituting any user fee under the HINMSA or NMSA for any activity
                within the Sanctuary or any use of the Sanctuary or its resources. NOAA has clarified references
                to user fees in the Final Management Plan to eliminate any confusion over this issue.

                79.    Comment: The Sanctuary will collect fees through special-use permits.

                       Response: NOAA has not provided for the issuance of special-use permits in Hawaii.
                NOAA has generally only issued special-use permits in alew sanctuaries to allow an activity to
                occur that would otherwise be prohibited by a specific Sanctuary regulation. The Hawaii
                Sanctuary has not proposed, in either the Draft or Final EISIMP, issuing independent permits,
                including special-use permits.

                                  7@ Tt77,-7@"
                                                                   3 U
                                                              V       A
                                                                  J
                                                                  . ....... .. . ... ... ...

                80.    Comment: Who will pay for the administration and implementation of the Management
                Plan?- There is a perception that the Sanctuary would be a Federal "cash cow" bringing money to
                the State. The cost of administering the Sanctuary, and the fiscal restraints of Congress, make it
                unlikely that the program would be able to afford to do much more than administer itself Win the
                State of Hawaii or local users have to pay for the Sanctuary?
                       Response:        The National Marine Sanctuary Program (NMSP) receives annual
                appropriations from Congress. In 1991, the National Marine Sanctuary Program was appropriated
                $5 million. This amount increased to $12 million in 1995 and $11.7 million in 1996 and 1997.
                This Congressional appropriation funds all 12 . National Marine Sanctuaries and part of the
                Program's headquarters office. Sanctuary designation means the Program's annual appropriations
                Will now be allocated to the Sancftiary and will be available for use on Sanctuary-related projects.
                The NMSP is funded entirely through Federal appropriations, and no State fiscal commitments are
                required. Additional funding Opportunities Qften become available through other NOAA funding
                sources and through cost sharing arrangements with other"Federal and State agencies. The NMSP
                may also supplement Congressional appropriations by entering into agreements with any non-
                profit organization to- solicit private donations -toIcarry out the purposes and policies of the
                Sanctuary. This and other means of voluntary revenue enhancement measures are being pursued

                Final Environmental Impact Statement                                                         Page 311
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                    Appendix A: Responses to Comments                                     Hawaudan Islands Humpback Whale
                                                                                                  National Marine Sanctuary

                    by -the Sanctuary program nationwide as a way of generating funding for projects which may
                    otherwise not have enough Congressional funding to cover. Part V of the FEIS/MP discusses the
                    revenue enhancement initiative of the NMSP.

                    71be Hawaii Sanctuary's budget is determined each year by the on-site manager, the regional
                    manager, and the Sanctuaries and Reserves Division (SRD) Chief according to site needs and
                    pficrities. Although the site will not be a "cash cow" or have money to immediately implement
                    every provision contained in the Final Management Plan, the site's budget will allow the Sanctuary
                    Manager to begin implementing priority items.

                    81.,    Comment: The Sanctuary is an unfunded mandate.

                            Response: NOAA disagrees. An unfunded mandate is a government program that
                    requires a Federal or state agency to carry-out'a function without providing the fiscal resources to
                    do so. The National Marine Sanctuary is not an unfunded mandate inasmuch as Congress has
                    funded the Program and no monies are required from the State of Hawaii or local users.
                    82..    Comment:    I The Sanctuary is an unwarranted increase in government spending. It is
                    unwise and irresponsible to spend Federal dollars on a Sanctuary that was neither wanted or
                    needed.

                            Response: The National Marine Sanctuary Program receives annual appropriations from
                    Congress to Tund the 12 individual sites and the national program. This amount varies from year
                    to year, though it has increased over the last five years. The designation of the Hawaii Sanctuary
                    has not resulted in an increase in government spending, only that some of the annual
                    appropriations are now spent in Hawaii. If the Hawaii Sanctuary was de-designated, this money
                    would be re-absorbed. into the NMSP and redistributed among the 11 other sites and the national
                    program (see response #8 1).

                    Many State and commnity participants feel that the expenditure of Federal monies on Sanctuary-
                    sponsored education, research, long-term monitoring, and enforcement programs is an important
                    and needed use of Federal funds, especially given. the fiscal crisis of the State government. With
                    Sanctuary monies supplementing existing State and county. programs, all agencies are able to
                    implement mom projects that are of top priority but currently unfunded.

                    83.,    Comment: How much money will go towards administration, research, and education?,
                    What is the budget breakdown for the site?

                            Response: Each operating National Marine Sanctuary has a site specific operation
                    budget. This budget depends on the size, staffing, resources to be protected, and overall needs of
                    the site. The Hawaii Sanctuary has been both in a development and semi-operational phase since it
                    was designated in 1992. Since the Sanctuary is not fully operational at this time, it is difficult to
                    estumte how much the fully operational site budget would be and how much would go towards
                    education, research. admini tration, and other activities. The current level of funding ($372,000 in
                    FY'96) may not adequately represent the budget of a fully operational Hawaii Sanctuary as it win
                    likely increase somewhat Once the site is operational, the annual operating budget will be a matter
                    of public record. In addition, the SAC will help the Sanctuary Manager determine priority items
                    and thus focus where NOAA should prioritize its funding.

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                National Marine Sanctuary

                84.     Comment: The Sanctuary proposes to incorporate the National Marine Fisheries Service
                humpback whale approach regulations that were amended in 1994. The Sanctuary should analyze
                the socio-economic impacts of these 1994 amendments.

                        Response: The Sanctuary program has no direct jurisdiction over the MNWA or its
                amendments which were signed into law by Congress in. 1994. Congress, in coordination with
                affected agencies, must consider the environmental and socio-economic impacts of new or
                modified laws and regulations prior to their enactment. The Sanctuary program is not required to
                evaluate the socio-economic impacts of the 1994 amendments to the MUPA. However, -NOAA
                has assessed the socio-economic impacts of incorporating the NMFS regulations into the
                Sanctuary's management regime. Based on the assessment, NOAA has determined that there will
                be minimal, if any, negative socio-ec'onomic consequences associated with incorporation of the
                regulations into the Sanctuary's management regime. Part IV of the Final EIS/Up discusses socio-
                economic consequences more in-depth.
                8S.     Comment: 1"he DEIS/MP* does not clearly describe the socio-economic impacts of the
                Sanctuary on the ocean users of Hawaii.

                        Response: NOAA prepared a socio-economic assessment of the Draft EIS/MP in
                compliance with the NMSA and the National Environmental Policy Act (NEPA). As required
                under these laws, NOAA must describe the socio-economic effects of the implementation of the,
                Sanctuary designation, including any negative impacts produced by management restrictions on
                income-generating activities. NOAA has determined that the Hawaii Sanctuary will not have
                negative socio-economic unpacts. on Hawaii's marine users since the Management Plan is not
                adding any new independent Sanctuary regulations, permits, or approval authority.
                In an effort to maximize protection and minimize impacts on users, NOAA considered socio-
                economic impacts as it made changes to the Final Management Plan. NOAA has clarified and
                provided a more thorough socio-economic assessment of the preferred alternative in Parts M and
                Part IV of the FEISAT.

                86.     Comment: The socio-economic impacts of future regulations has not been clearly
                articulated in Part IV (the socio-economic impacts analysis section) of the DEISAV.
                        Response: NOAA has not assessed the socio-economic impacts for future regulations
                because the need or likelihood of such regulation is speculative. NOAA has determined, based on
                existing information, that no new regulatory prohibitions or restrictions are needed to protect
                humpback whales and their habitat. NOAA cannot say if new regulations will be needed in the
                future, how restrictive they will be, or which user groups will be affected.
                87.     Comment: * Unnecessary Sanctuary regulations and restrictions will have a direct
                negative-effect on the cost of transporting goods between neighbor islands.
                        Response: NOAA disagrees. NOAA is not adding any new independent regulatory
                prohibitions or restrictions to those already in place. Rather, NOAA is essentially incorporating
                certain regulations already-in existence W protect humpback whales and their habitat. For example,
                the I 00-yard humpback whale approach regulations have been in place - and enforced by NMFS
                since 1987. These regulations have not had significant adverse effects on the cost of transporting
                goods between islands, and could only impact the cost of transporting goods if a vessel captain
                was in violation of these regulations

                Final Environmental Impact Statement                                                       Page 313
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                    Appendix A: Responses to Comments                                     Hawaiian Islands Humpback Whale
                                                                                                  National Marine Sanctuary

                    88.     Comment: 'The Draft EIS/MP states that the Sanctuary could lead to increased tourism. If
                    so, what are the socio-economic impacts of this increased tourism.

                            Response:     Whileit is true that some travelers may view the presence of a Humpback
                    Whide Sanctuary as    another reason to visit HawaiL it is doubtful that the Sanctuary, by itself,
                    would result in a significant increase,in tourism above and beyond what is already occurring.
                    More accurately, the presence of a Sanctuary would likely create a greater awareness among those
                    tourists who are already in Hawaii that there are whale watching opportunities and protection
                    measures within the Sanctuary. Thus, the Sanctuary may actually enhance the visitor's experience
                    of Hawaii. This greater recognition of the resources as well as the potential for advertisement has
                    occurred in other sanctuaries (e.g., Monterey Bay, Florida Keys, and Channel Islands). Many of
                    the local communities advertise the presence of the Sanctuary as a means of attracting more visitors
                    from an increasingly competitive market and educating those visitors about the area's unique
                    marine resources and the commitment to protecting these resources. Despite the added "attraction"
                    value, however, the designation of these areas as sanctuaries has not resulted in a dramatic increase
                    in tourism.

                    In Hawaii, NOAA believes that the Sanctuary, working with the local community and marine
                    industries,,, will help develop a greater understanding and appreciation of humpback whales, their
                    habitat, and those regulations designed to protect them. Thu increased awareness will hopefully
                    prevent or minimize harassment and other negative impacts associated with human presence
                    (pollution and habitat destruction), while enhancing the beneficial experience of tourists visiting
                    Hawaii.

                    89.     Comment:       Describe the. potentiak* impacts of the Sanctuary to existing resource
                    martagernent programs dealing with water quality issues.
                            Response.:      The Sanctuary is . not issuing independent regulations, permits, or
                    authorizations that would curtail or impede the authority of the existing water quality management
                    agencies. The Sanctuary is developing MOUs with the relevant water quality agencies (i.e.
                    Department of Health) in order to work within their existing permit application review procedures
                    to ensure that Sanctuary concerns are addressed. The Sanctuary will not have authority to prevent
                    thepermit issuing agency from approving a project and will work with that agency to supplement
                    monitoring and enforcement efforts (see response #5 1).
                    90.     Comment: NOAA should recognize and protect the existing uses. of ocean users.
                            Response: NOAA agrees. NOAA recognizes the many oce             'an users and industries that
                    conidnue to operate in Hawaiian waters and that have incorporated measures to voluntarily protect
                    humpback whales in their day-to-day operations. National Marine Sanctuaries are multiple use
                    areas and the Hawaii Sanctuary will facilitate public and private uses (including uses by Native
                    Hawaiians customarily and traditionally exercised for subsistence, cultural, and religious purposes)
                    consistent with the primary objective of protection of humpback whales and their habitat.
                    Voluntary compliance with existing regulations is a  primary goal of the Sanctuary. The Sanctuary.
                    will make every effort to work with the different marine user communities and involve them in the
                    implementation of the                 Plan. The SAC is one mechanism that the Sanctuary has
                    established to formally recognize and involve Sanctuary users in advising on the development of
                    the Final Management Plan and ongoing implementation and management of the Sanctuary (see
                    response #53).
                    91.,    Comment: NOAA should exempt all commercial transport activities from Sanctuary
                    regulations because of negative economic impacts.

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                National Marine Sanctuary
                        Response: NOAA does not agree that commercial transport should be singled out as the
                only industry that should be exempted from the Sanctuary regulations. The Sanctuary regulations
                essentially incorporating certain existing restrictions as Sanctuary regulations and is not adding
                independent Sanctuary regulatory prohibitions or restrictions, permits, or approval requirements
                beyond what is already. Consequently, the Sanctuary will not pose negative socio-economic
                impacts on the commercial transport industry and determined that exemptmg that industry from
                Sanctuary regulations is neither necessary nor consistent with achieving the purposes of the
                HINMSA. The commercial transport industry has never been cited for whale harassment.

                MERNINKEW1

                92.     Comment: There is no need     for the Hawaiian Islands Humpback Whale National Marine
                Sanctuary.
                        Response: NOAA disagrees. NOAA believes that additional resource protection is
                needed to ensure the long-term recovery and continued vitality of humpback whales and their
                Hawaiian habitat, and that this can occur primarily through non-regulatory (research, long-term
                monitoring, education, and coordination) mechanisms. Because of its mandate and its public
                participation component, the National Marine Sanctuary Program is ideally suited to provide these
                functions. Moreover, the 25 member SAC provides a forum for representatives of the many
                different marine users and resource management agencies to discuss management issues
                concerning the Sanctuary. The SAC has formed working groups to discuss research, education,
                enforcement, and the continued development of the Sanctuary. Essentially, the SAC has given
                marine users and resource managers the opportunity to meet, learn, and coordinate with each other
                (see response #53). The National Marine Sanctuary program can also supplement resources and
                provide technical support for research, long-term -monitoring, education, and existing enforcement
                programs (see responses *18-19).
                Even though the MMPA and the ESA offer protection for the humpback whale, the Sanctuary
                program offers a broader range of comprehensive protection and          e       And while the.main
                focus of the ESA is the recovery of an endangered species, the Sanctuary helps in the recovery of
                the humpback whale through the additional protection of humpback whale habitat and will offer
                continued protection through research, education, enforcement, and monitoring long after the
                species' recovery and removal from the endangered species listing, should that occur.

                93.     Comment: It is not clear what the Sanctuary is protecting humpback whales from.

                        Response: The primary purpose of the Hawaiian Islands Humpback Whale National
                Marine Sanctuary is to provide comprehensive protection for both humpback whales and their
                habitat. Since NOAA cannot protect whales from natural predators and other natural causes of
                mortality, it will focus its management attention on those potential impacts resulting from human
                activities that are known to presently, or have the potential to adversely impact humpback whales
                and their habitat. After receiving input from other agencies and searching the current body of
                scientific literature, NOAA has determined that the existing regulatory measures are adequate for
                protecting the whales from harmful vessel interactions (see responses #18-19). The Sanctuary will
                'primarily focus its efforts on educating the public on the existing regulations designed to protect
                humpback whales, enhancing the enforcement of these laws, and working cooperatively with other
                agencies and researchers to increase the knowledge and understanding of humpback whales, their
                habitat, and those potential human activities that could adversely impact the whales and their
                habitat.

                Final Environmental Impact Statement                                                        Page 315
                and Management Plan

                   Appendix A: Responses to Comments                                     Hawaiian Islands Humpback WMe
                                                                                                National Marine Sanctuary

                   94.     Comment: The Sanctuary will only add an unnecessary layer of bureaucracy and is
                   duplicative of existing management efforts.

                           Response: NOAA disagrees. Throughout the development of the Hawaii                Sanctuary,
                   NOAA was repeatedly informed by agencies and the public that there were enough regulations on
                   the books protecting humpback whales and their habitat. NOAA was also told that additional
                   effbirts were needed to coordinate existing authorities and to supplement research, monitoring,
                   education, and enforcement efforts. The Sanctuary Management Plan, which relies on existing
                   regulatory authorities, was designed in response to such public commefits. NOAA made
                   significant efforts to eliminate duplicative permitting and approval procedures. Since the Sanctuary
                   is relying on existing Federal and State regulations and permits, the Sanctuary is not issuing
                   independent permits, but will work within the existing permit review structures of agencies to
                   ensure that potential impacts to humpback whales and their habitat are addressed. MOUs with the
                   affected agencies will detail how the Sanctuary will coordinate with these agencies, within existing
                   timeframes. The impact on the permit applicants and permit granting agencies- will be minimal (see
                   response #20).

                   The Hawaii Sanctuary will not duplicate existing efforts to protect Hawaii's marine environment,
                   but,wiR help coordinate and integrate such efforts, with a particular focus on the humpback whale
                   and its habitat. Coordination with existing authorities and the private sector will help reduce
                   duplication and focus efforts on.filling management and information needs. The Sanctuary can
                   also provide fiscal, personnel, and technical resources to supplement education, research, and
                   enforcement efforts that are not available with the existing programs. Finally, the SAC and
                   associated working groups will, for the first time, provide a forum for resource managers,
                   researcher, educators, Native Hawaiian, and marine users to provide recommendations and advice
                   to the Sanctuary Manager regarding management of the Sanctuary..

                   95.     Comment: The Draft EIS fails to explore other options in lieu of the -Sanctuary such as
                   giving funds to NMFS, the State, or other organizations.

                           Response: Upon passage of the HESMSA which designated the Sanctuary, Congress
                   directed NOAA to develop a comprehensive Management Plan and regulations to implement the
                   designation and fulfill the purposes of that Act. NOAA assessed the available resources used by
                   existing Federal and State humpback whale resource protection programs, and found that the
                   .amount does not adequately fund necessary research, education, enforcement, monitoring, and
                   coordination programs. In developing the Plan, NOAA considered various options, including a
                   no-Sanctuary option, which were not selected as the preferred option. Under the Act, NOAA is
                   required to complete and issue a final management plan and regulations for the Sanctuary. De-
                   designation of the Sanctuary can only occur if the Governor of Hawaii objects to the management
                   plan, regulations, or any term thereof and the Secretary of Commerce subsequently determines to
                   de-designate the site, or if Congress repeals the HINMSA.
                   The National Marine Sanctuary program is funded through Congressional 'appropriations to
                   develop and manage National Marine Sanctuary sites and the national program. The Sanctuary
                   program does not have authority, nor the surplus resources, to support efforts in-lieu of having a
                   Sanctuary.

                   Page.316                                                          Final Environmental Impact Statement
                                                                                                    and Management Plan

                 Hawaiian Islands Humpback Whale                                   Appendix A: Responses to Comments
                 National Marine Sanctuary

                 96.     Comment: The State should implement and support community resource management
                 programs.

                         Response: While this comment is directed to the State and not to NOAA, NOAA does
                 intend to assist the State in efforts to support community resource management programs. The
                 Hawaii S 'anctuary'was not designated nor developed to replace these community-based efforts, but
                 to become another means of supporting such efforts that am consistent with the Sanctuary's goals
                 and objectives. The Sanctuary will' look at the community-based plans and programs as a
                 knowledge source and as a resource management partner. Close coordination will be required to
                 truly complement efforts, and the Sanctuary has already initiated such efforts to work at the local
                 level. On Maui, DOH and Maui County, in partnership with the Sanctuary, developed the Maui
                 volunteer water quality monitoring program. The Sanctuary has also worked with local
                 conservation groups to develop whale watching brochures, and educational programs concerning
                 the coral reef initiative throughout the State. Many of these community and State efforts would not -
                 have been accomplished without fiscal support from the National Marine Sanctuary Program.
                 While the Sanctuary program is supportive of such State initiatives, however, the program has no
                 authority to dictate that the State undertake such measures.

                 97.     Comment: The Hawaii ORMP already exists and the Sanctuary detracts resources
                 (money and staff) away from implementing that plan.

                         Response: NOAA disagrees. The State of Hawaii initiated a statewide effort to develop
                 the ORMP in the late 1980s. This plan was finished in 1991 and is far more comprehensive in
                 scope than the Sanctuary Management Plan. However, it has remained a plan and is not being
                 fully implemented because of fiscal constraints. - The Hawaii Sanctuary was not intended to replace
                 the ORMP, but to complement this statewide community effort. Many elements of the Sanctuary
                 Management Plan, including greater agency coordination, community. iriyolvernent, education,
                 research, and enforcement are fimdamental resoui-ce management needs identified by the ORMP.
                 Through proper coordination with the State (such as through the SAC or the State's Marine and
                 Coastal Zone Management Advisory Group), the Sanctuary can be used to help implement portions
                 of the ORMP that are consistent with the Sanctuary Management Plan. Part IV of the Final
                 EIS/MP identifies several components of the ORMP that are compatible with the Sanctuary. The
                 Sanctuary will not compete or take fiscal resources away from ORMP implementation since the,
                 ORMP is a State initiative and the Sanctuary is Federally funded. In this regard, the Sanctuary
                 Program has already participated in a number of scoping and planning meetings on how to best
                 implement the ORMP and how the Sanctuary can co-fund portions that also address the
                 Sanctuary's goals and mission.

                 98.     Comment: If the Sanctuary is so critical to the recovery of the humpback whale, why
                 was it not included in the NMFS Humpback Whale Recovery Plan?

                         Response: The NMFS Humpback Whale Recovery Plan was completed and released to
                 the public in 1991 - one-year before the Sanctuary was designated. Although NMFS and SRD are
                 both divisions within NOAA, they each have separate responsibilities and congressional mandates.
                 SRD has been delegated the authority to administer the National Marine Sanctuary Program,
                 including the development of new sites. NUFS does not have authority to designate or manage
                 National Marine Sanctuaries, and as such would not normally undertake sanctuary designation as a
                 means of protecting marine mammals. NMFS would more likely pursue other alternatives within
                 their purview, such as designating critical habitat and/or promulgating regulations under the ESA to
                 protect endangered species. Critical habitat was one of the measures identified in the recovery
                 plan. NOAA believes that the Sanctuary is a tool which can be used to facilitate the implementation
                 of the NMFS Recovery Plan.

                 Final Environmental Impact Statement                                                        Page 317
                 and Management Plan

                   Appendix A: Responses to Comments                                      Hawaiian Islands Humpback Whale
                                                                                                 National Marine Sanctuary

                   99.     Comment: The marine recreation and user community has been educating and self-
                   regulating itself for years. Extensive humpback whale research and education efforts have been
                   funded by the private sector since the 1970's, and government involvement is not needed. Why
                   does the Sanctuary have to step-in and replace these on-going efforts? The Sanctuary does not
                   recognize these existing efforts.
                           "Response: NOAA will not replace the efforts of existing. marine rec      .reation, education,
                   research, and other groups.' The Sanctuary recognizes and applauds the past and present efforts
                   that the local researchers, educators, marine recreation industry, and environmental organizations
                   have undertaken to conduct research, educate the public, and self-regulate themselves and their
                   constituents. The Sanctuary views these ongoing. and future private efforts as crucial to the
                   implementation and success of the Sanctuary Management Plan. The Sanctuary will work with
                   these organizations and individuals to develop partnerships, cooperative agreements, and other
                   working relationships to ensure that existing and future conservation and research efforts are
                   complementary. Public participation through the SAC and other associated working groups
                   (education, research, management) will help the Sanctuary and the local community identify, fund,
                   and implement priorities in the upcoming years. Such community-based input will lead to better
                   coordination, less duplication, and overall better protection for the humpback whale and its habitat-

                   10 01 . Comment: The Hawaii Sanctuary will add few benefits to the State.

                           Response: NOAA disagrees. There are numerous benefits associated with a national
                   marine sanctuary, including enhanced opportunities for research and long-term monitoring,
                   additional marine educational material developrnent@ and'increased support for the enforcement of
                   existing laws. NOAA has formed a SAC which gives the public more opportunity and input in the
                   management the Sanctuary (see response #53). This enhanced communication and coordination
                   will become a powerful tool to bring the public into discussions as they concern the management of
                   humpback whales and their habitaL SAC working -groups or sub-committees on education,
                   research, regulations, and enforcement, as well as county representation will ensure public input
                   from across the State and from a diverse range of marine users.. Additionally, the presence of a
                   sanctuary draws attention to the fact that the marine waters of an area are of national significance
                   and -worth p1rotecting. This perception can lead to enhanced ecotourism, opportunities previously
                   unavailable, as has occurred in other National Marine Sanctuaries. (See response #19 for a more
                   detailed discussion as to the added protection benefits to humpback whales and their habitat.).

                                                                         A---
                                                             A,
                                                                4,4,4,

                   10 1. Comment: The Sanctuary's Congressional designation circumvented public input and is
                   in violation of the intent of the National Marine Sanctuaries Act.

                          - Response: NOAA -disagrees. There are two ways by which a National Marine Sanctuary
                   can tie designated. The first way a National Marine Sanctuary can be designated is for anyone to
                   nominate the site for consideration by NOAA as a Sanctuary. The site is evaluated and, if chosen,
                   NOAA prepares a draft and final EIS in accordance with the NMSA and NEPA. The Sanctuary is
                   not officially designated until after the close of a review period of forty-five days of continuous
                   session of Congress beginning on the date notice of designation is issued. During this time, the
                   Governor of a state with waters included in the proposed Sanctuary may object to the Management
                   Plan or regulations,'or any term thereof, and that management plan, regulation, or term will not
                   take effect in the state waters of that Sanctuary.
                   The second way a sanctuary can be designated is by legislation (see response #103), which is
                   how, for example, the Hawaiian Islands Humpback Whale and the Florida Keys National Marine

                   Page.318                                                           Final Environmental Impact Statement
                                                                                                     and Management Plan

                Hawaiian Islands Humpback Whale                                   Appendix A: Responses to Comments
                National Marine Sanctuary

                Sanctuaries were designated. Once a site is designated, Congress requires NOAA to prepare a
                management plan and pursuant to the NMSA and the NEPA. The Governor of a state with waters
                included in the Sanctuary is provided the opportunity to review and object to the management plan
                and .             regulations or any terms thereof. If a Governor does object, the management
                Plan, regulation, or term will not take effect in State waters of that Sanctuary.
                lberefore, the processes for both the development of and- for the Governor's acceptance and
                approval of the final EIS/MP are the same for both types of designations, the only difference being
                the impetus which begins the process.

                102. Comment: NOAA has avoided public disclosure of information and bypassed NMSA
                procedures in making Sanctuary boundary amendments.

                       Response: The Hawaiian Islands Humpback Whale National Marine Sanctuary was
                designated by Congress, an action which is fully within Congress' purview. In subsequently
                developing the               plan, NOAA has   *not avoided any form of disclosure of information.
                NOAA held a series of statewide scoping meetings in March 1993 to gather public comments to
                assist in development of the management plan and regulations to implement the Congressional
                designation. In the summer of 1993, NOAA and the State jointly convened a Sanctuary Working
                Group (SWG) to offer advice andguidance on, the direction of the Sanctuary and the development
                of the DEIS. All SWG meetings were given public notice through press releases and direct
                mailings to -over 400 individuals and organizations, and were open to the public. (The SWG
                remained in.eftect until the DEIS was published in 1995.) In January 1994, a Discussion Paper
                was published to gather input to direct NOAA in the development of the Sanctuary's management
                regime. A series of statewide public meetings were held to solicit more public input on the paper in
                March 1994. In summer 1994, a Summary of Proposals for Possible Inclusion in the DEIS was
                released to the SWG for their review. In 1995, NOAA published the DEISAMP in which NOAA
                described a preferred boundary alternative that expanded the Congressionally designated boundary.
                NOAA held over 25 statewide public information workshops- to present the document to the public
                and to answer questions regarding its content. SRD also held seven public hearings throughout the
                main Hawaiian Islands to receive comments on the DEIS&W. In total, over 250 written comments
                and oral testimonies were received by NOAA during the 90-day comment period. Finally, in
                March 1996, the 25 member SAC was created by NOAA to provide a more formalized means of
                providing advice and recommendations to the Sanctuary Manager and. NOAA on the continued
                development of the site, including such issues as boundary, regulations and administration - (see
                response #53).

                       NOAA has not bypassed any, and in fact has gone well beyond the minimum required,
                NMSA and other requirements for public input in developing the management plan, including
                making proposed boundary amendments. The Congressional law which designated the Sanctuary
                specifically allows NOAA to amend the boundary as necessary to fulfill the purposes of the Act.
                NOAA's preferred boundary alternative reflects this change.
                10 3. Comment: Why does the Sanctuary continue despite the opposition? Many ocean users
                oppose Sanctuary.

                       Response: While NOAA recognizes that there are certain factions of the general public in
                Hawaii opposed to the Sanctuary, there are also certain factions that are in support. By passing the
                HDWSA, Congress designated the Sanctuary and directed NOAA to develop a comprehensive
                management plan and implementing regulations for the Sanctuary.

                Final Environmental Impact Statement                                                        Page 319
                and Management Plan

                    Appendix A: Responses to Comments                                  Hawaiian Islands Humpback Whale
                                                                                              National Marine Sanctuary

                    10-4. Comment: Citizens of Hawaii do not want the Federal government in State waters
                    usurping county and State agency jurisdiction. The Sanctuary is unwarranted intrusion in State
                    waiters.

                            Response:      The Sanctuary program will not usurp the State's authority (or -any other
                    Federal agency's authority) or rights within the Sanctuary boundary. The Sanctuary program will
                    work with the State of Hawaii to cooperatively manage and protect humpback whales and their
                    habitaL The Sanctuary is not proposing to have independent permit requirements or approval
                    authority, but will work cooperatively within the existing permit review framework. NOAA is
                    working with DOH, DLNR, and NMFS, to develop MOUs to clarify permit review procedures
                    and. interactions with the Sanctuary program. Where the boundary of the Sanctuary lies outside of
                    State jurisdiction, existing Federal programs will continue to have jurisdiction.

                    TIX, State of -Hawaii initially worked with their Congressional delegation to get the Sanctuary
                    designated in 1992. The Governor's Office of Planning (OP) (formally the Office of State
                    Planning) has been the lead state agency working in partnership with the National Marine
                    Sarictuary program for over 3-1/2 years to ensure that the State's jurisdiction and rights are
                    maJ.intained, and not relinquished. OP has gone on record as supporting the Sanctuary designation
                    process, and representatives have attended nearly all the public workshops and public meetings
                    held since 1992. OP has worked with NOAA to develop the DEIS/MP and the FEIS/MP.

                    Page 320                                                        Final Environmental Impact Statement
                                                                                                  and Management Plan

                 Hawaiian Islands Humpback Whale                                      Appendix A: Responses to Comments
                 National Marine Sanctuary

                                       COND4ENTERS ON THE DRAFr ENVIRONUMNTAL
                                        nMPACr STATENENT AND MANAGEMENT PLAN

                                                        TESTIMONYMATRDC

                 Final Environmental Impact Statement                                                            Page 321
                 and Managernent.Plan

        Public Testimony Matrix
        *Numbers correspond to regulatory alternatives and letter refer to boundary alternatives listed in the DEIS/MP

                                                          1(shoo"w"s Rog& daflonma Fish ng Enlorcs-                      Rosewch Education      now     UserFass Funding       Soolo-    Und    Designation Fedem!              C3
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                                                   4                                 X                 X                    X                    X                    X         X         X                     X               IOU
                                 Office                                                                                                                                                                                         W
           4- Hawaii Air National Guard                                     X                          X
           -5. Kahoolawe Island Reserve                      X                                                                                   X                                                  X
              Commission                                                                                                                                                                                                        FA
              Office of Hawaiian Affairs                                                                                                         X                                        X
           r
              National Marine Fisheries                                     X                 X        X                    X          X                                                  X
              Service
              State Department of                  X                        X                                                                                                   X
              Transportation
           9- University of Hawaii                 X                        X                          X                                                                                  X
              Environmental Center
           10-- U. S. Department of tEe            X                                                   X                                                                                  X         X           X
              Armt:Corps of Engineers
        --TT- u. 9. Department ol ins Navy         C
              U. S. Environmental                                           X                          X                    X                                                   X         X
              Protection Agency
              Western Pacific Regional                                      X                          X
              Fishery Mgmt. Council

                                                   1          2             3        4        5        1          7         a                                         '2                                        Is
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                                                                                                                         Research  E ucation    Nalk.   I.I.F.. Funding       soclo-            Dome-don
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                            a of Kauai             D                        X                          X                                                                                  X
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                                                                                     X                                                                     X          X                                         X
              Earth Island Institute                                        X        X                 X                                                                                  X
             I Eye of the Whale                    X                        X
              Hanalei Community                    D                    *3/6                           X                                         X
              Association
             LHawail Audubon Society                                        X                          X       X            X          X                                                  X         X
              Haw-Oc;namber of commerce                                     X                                               X                              X          X
                Maritime Committee
              Hawaiian International               X                                                                                                                                     @X
              Billfish Association
              Hui Moana                            X                        3                                               X                                                             X
                     iui Hawaii                                                      X                                                           X         X          X         X         X                     X
                                                                                                                                                                                                                              CA

                     3ierra Club                   X                                                                                                                                      X

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                                                   2           3       4                                                      11       2       13
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             Program_                                                    I              I          -
             McBoat                        x                   x             x                x                                                        x                x
             Molard Neam"WOCI Ward         x                                        x                                                          x
         115- Molokai Ranch                                    x                    x         x                                                x                        x
         17- Moss Landing Research         B                                        x                x
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             Personal Watercraft           x                   x                                              x                                        x                x
             Industry Association                                                                I
             Sierra Club- Kauai            x                                        x                                 x                        x       x
         20. Sierra Club -Hilo             x                                 x                       x        x                                        x
             Sierra Club - Oahu            D                   3                    x
             Waikoloa Land Company                             x                    x                                                          x       x                x
             Whales Alive                                      x                    x                                                                                   x

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         2.  (Unknown R.), Tony                                                                                                                        x
         3-1 (Unknown), Joan                                                                                                                           x
         4- 1 Laureen Elizabeth                                        x                                                                               x       x        x
         5.1 Nano                                                      x                             x        x                                        x
         6- 1 Anafd, Louis                                                                                                                             x
         7-1 Alla. William                 x                   x       x                      x                       x            I   x               x
         0- 1 Aki. Dennis                  x                   x                    x                x                        x                        x                x
         u- I Anderson, Mike                                   x                                                                               x       x       x        x
         10- 1 Anderson, Captain Gary                                                                                                                                   x
             Anderson, Laurie                                                                                                                          X  I
             Bailey, Michael                                                                  x                                                        x                x
             Bal, Vernon                                                     x      x    I                                             x       x               x        x            >
         14- Bautista, Ronald                                                                        x                                                 x
             Berg, Cad                     D                *IV                     x                         x
             Bernard, Hannah                                           x I          x                                                                  x
         17. Bilbo, Pate         .....                                                                                                 x                                x
         'I'- I Block, Richard                                                                                                                         x                x
         19- 1 Bonk-Abramson, Keiko        A                           x            x                x        x       x       x                x       x                x
         zu- Bosma, Rudy                                                     x                                           j-            x
         21- Brindo-Vas, Norman                                        x     x      x                x
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                   , Susan                                                                                                                                                 x                                 >
             Carlisle, Sandra                                        x                x                                                                           x        x
      -27- Carrillo, Bianca                                                                                                                                                x
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         20. Chojohn__                                                                                                                                                     X
         29. Choi, Dick                       x                      x                                                                                                         I _x
         30- Chong, Herman                    x                      x        X.                                                               x                           x
         31. 1 Choun, Sumay                                                                                                                                                x
         32.1 Chuan, Ray                                             x        x                                                                                            x                   x
         33- 1 Coleman, Richard               x                      x                                                                                                     x
         34.1 Collins, Tod                    X                                                x                                                                           x
         35. 1 Coon, Jim                                                                                                                                x         x                            x
         35- 1 Corder, Ron                                                    x                x                                               x                           x
         37-1 Croydon, Guy                                                    x                                                                         x         x                            x
         35-1 Curtis, Henry                                          x        x                                                       x                                    x
         39-1 Davis, Rick                                                     x                                              x                                             x
         40.1 Decosterd, Kutria                                                                                                                                            x
         4T-- Dodg , Susie                                                                                                   x                                             x
             Dods, Walt                                                       x                                   x                                                        x                   x
      -4r Dunn, Corbin                                                                                                                                                     x
         4"r Dumin, Jennifer                                                                                                                                               x
         45- Evans, Chris                                            x        x       x                                      x                                             x
         46.1 Fairbanks, Keon!                     I     x
         47. -Fang,Fanny                                                                                                                                                   x
         48. Fleming, William                                                 x                                              x                          x                  x                   x
             Flores, Amanda                                                                                                                                                x
             Fonoimoana, Kent                                                 x                                                                                            x                   x
             Fonolmoana, Tod                                                  x                                                                                            X
             Forestall, Paul                  x V                    x
         53- 1 Frahme. Cad                                                                                                                                                 x
         04, 1 Funa. Po Ying                                                                                                                                               x
         03. Gaffney. Rick                    I          x ---       x        x       X        X        x         x          x        x        x        x         x        x         x         x
         55- Godinez, Elizabeth                                                                                                                                            x
             Goedecke, Diane                                                                                                                                               x
                    S, James                                         x        x                                                                                   x        x                   x
             Grossman, Kim                                                                                                                                                 x
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             Gutierrez, Brennan
                    a, Paul .                                                 x                                                                                                                x
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                                                                   a             3          4         5         6          7          8           9          10         11                     is                   IS
                                                   ftliftm Kahoolawe Regulations Fishing Enforce-                                  Research   Education    NOw       1.1serFout Funding      soclo-      Head   Designation
                                                                                                     Inent             =C                                                                  EconoWAG
                                                                                                              Scop                                                                          knpacts
                                                                                                                                                                                                         x                       x
                                                                                 x                                                                                                                       x
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                Himscho t, e-bacca                                                          x                                         x           x                                x                     x                       x
                Ho. Nelson                                                                                                x                                  x                                           x                       x           W
                Hofellch. Bob                                                                                                                                                                            x                       x
                Holt. Kate                                                                  x
                Hona, GI nn                                                      x                              x                                 x          x                                           x                       x
                Housh, Jim                                                                                      x                                                       x          x           x                    x            x
                Hudson,Rob                              D                        6                                                                                                 x           x         x          x            x
                Huffman, Steve                                                                                                                                                                           x
                Hylke a, Jim                                                                x                                                     x                                x                                             x
                Inaba, Don                                                                  x                                                                                                            x                       x
                Ishikawa, Ralph                       x           x                                             x                                                                                                   x            x
                Johnson, Chuck                        x                          x          x                                                                           X                                x                       x
                Jordan, Rick                                                                                                                                                                             x                       x
                Juarez, Steve                                                                                                                                           x     I                          x                       x
                Kabul, Craig, V.                      x                                     x                                         x                      x                                                                   x
                Kaing, Earl                                                                                                           x                                                                  x                       x
                Kaleiopu, Ben                                                    x                                                                           x                                 x         x
                Kamakana, Wilma                       x                                                                                           x          x
                Kawamura, Walter                      A                                     x                                                                           x          x                     x          x            x
                Kaufman, Greg                                                                                                                                                      x           x         x          x            x
                Kina. William                                                    x          x                                         x           x                     x          x                                             x
                Koehne, Cindy                                                    x                                                                x                                                      x          x            x
                Krown, Steven                                                    x                                                                      N
                Lai, Virginia                                                                                                                                                                            x
                Le, An                                                                                                                x                                                                  x                       x
                Lee. Wayde                                                                                                                                                                                                                       i
                Lilly, Dr. John C.                                                                                                                                                             x
                Unser, Elizabeth                      x                                                                               x                                                                  x
                Lofstedt, Curtis                                                                                                                                                   x           x                                 x               >
                Luckey, Jim                                                                                                           x           x                                                                              x
                Lui. Susanna                                                                                                                                                                             x
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        @ffij Myers. Preston                                                                                                                     x
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           Ngo,Joseph                                                                                                             x
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           Novembre, Tracy                                                                                                        x
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         *Numbers correspond to regulatory alternatives and letter refer to boundary alternatives listed in the DEIS/MP

                 Appendix A: Responses to Comments                                           Hawaiian Islands Humpback Whale
                 Resolutions                                                                         National Marine Sanctuary

                                             TFUS PAGE INTENnONALLY LEFr BLANK'

                 Page 329                                                                 Final Environmental Impact Statement
                                                                                                         and Management Plan

                     Appendix A: Responses to Comments                                           Hawaiian Islands Humpback Whale
                     Resolutions                                                                         National Marine Sanctuary

                                                TMS    PAGE HiTETMONALLY LEFr.BLANK

                     Page 330                                                                Final Environmental Impact Statement
                                                                                                             and Management Plan

                  Hawaiian Islands Humpback Whale                                  Appendix B: National Marine Sanctuary Act
                  National Marine Sanctuary
                                                           - AppencUm _B

                       THE NATIONAL MARINE SANCTUARIEs AcT (NMSA), 16 U.S.C 1431 FI=.
                                                      As amended by Pub. L. 104-283

                  (NOTE: The Oceans Act of 1992, Pub. L. 102-587, and the National Marine Sanctuaries Preservation Act of 1996,
                  Pub. L. 104-283, contain provisions pertaining to national marine sanctuaries.]

                  Sec. 301. FINDINGS, PURPOSES, AND POLICIES
                  (a) FINDINGS.-The Congress finds that-
                          (1) this Nation historically has recognized the importance of protecting special areas of its public domain,
                          but thew efforts have been directed almost exclusively to land areas above the high-water mark;
                          (2) certain arm of the marine environment possess conservation, recreational, ecological, historical,
                          research, educational, or esthetic qualities which give them special national, and in some instances,
                          international, significance;
                          (3) while the need to control the effects of particular activities has led to enactment of resource-specific
                          legislation, these laws cannot in all cases provide a coordinated and comprehensive approach to the
                          conservation and management of special areas of the marine environment;
                          (4) a Federal program which identifies special arm of the marine.enviromnent will contribute positively to
                          marine resources conservation. research, and management; .
                          (5) such a Federal program will also serve to enhance public awareness, understanding, appreciation, and
                          wise use of the marine environment; and
                          (6) protection of these special areas can -contribute to maintaining a natural assemblage of living resources
                          for future generations.

                  (b) PURPOSES AND POLICIES.-The purposes and policies of this tide am-
                          (1) to identify and designate as national marine sanctuaries areas of the marine environment which are of
                          special national significance;
                          (2) to provide authority for comprehensive and coordinated conservation and management of these marine
                          areas, and activities affecting them, in a manner which complements existing regulatory authorities;
                          (3) to support, promote, and coordinate scientific research on, and monitoring of, the resources of these
                          marine areas, especially long-term monitoring and research of these areas;
                          (4) to enhance public awareness, understanding, appreciation, and wise use of the marine environment;
                          (5) to facilitate to the extent compatible with the primary objective of resource protection, all public and
                          private uses of the resources of these marine areas not prohibited pursuant to other authorities;
                          (6) to develop and implement coordinated plans for the protection and management of these areas with
                          appropriate Federal agencies, State and local governments, Native American tribes and organizations,
                          international organizations, and other public and private interests concerned with the continuing health and
                          resilience of these marine areas;
                          (7) to create models of, and incentives for, ways to conserve and manage these areas;
                          (8) to cooperate with global programs encouraging conservation of marine resources; and
                          (9) to maintain, restore, and enhance living resources by providing places for species that depend upon these
                          marine areas to survive and propagate,

                  Sec. 302. DEFINITIONS
                  As used in- this tide, the term-
                          (1) "Draft management plan" means the plan described in section 304(a)(1)(C)(v);
                          (2) "Magnuson Act" means the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801 et
                          seq.);
                          (3) "marine environment" means those areas of coastal and ocean waters, the Great Lakes and their
                          connecting waters, and submerged lands over which the United States exercises jurisdiction, including the
                          exclusive economic zone, consistent with international law;,
                          (4) "Secretary" means the Secretary of Commerce;

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                    Appendix B: National Marine Sanctuary Act                             Hawaiian Islands Humpback Whale
                                                                                                 National Marine Sanctuary

                           (5) "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico,
                           the Commonwealth of the Northern Mariana Islands, American Samoa, the Virgin Islands, Guam, and any
                           other commonwealth, territory, or possession of the United States;
                           (6) "damages" includes-
                                   (A) compensation for-
                                                   (i)(1) the cost of replacing, restoring, or acquiring the, equivalent of a sanctuary
                                                   resource; and Q the value of the lost use of a sanctuary resource pending its
                                                   restoration or replacement or the acquisition of an equivalent sanctuary'resource;
                                                   or
                                                   (ii) the value of a sanctuary resource if the sanctuary resource cannot be restored
                                                   or replaced or if the equivalent of such resource cannot be acquired;
                                   (B), the cost of damage assessments under section 312(b)(2); and
                                   (C) the reasonable cost of monitoring appropriate to the injured, restored, or replaced resources;
                           (7) "response costs" means the costs of actions taken or authorized by the Secretary to minimize destruction
                           or loss of, or injury to, sanctuary resources, or to minimize the imminent risks of such destruction, loss, or
                           injury;
                           (8) "sanctuary resource" means any living or nonliving resource of a national marine sanctuary that
                           contributes to the conservation, recreational, ecological, historical. research, educational, or aesthetic value
                           of the sanctuary;*and
                           (9) "exclusive economic zone" means the exclusive economic zone as defined in the Magnuson Fishery and
                           Conservation Act.

                    Sec. 303. SANCTUARY DESIGNATION STANDARDS
                    (a) STANDARDS.-The Secretary may designate any discrete area of the marine environment as a national marine
                    sanctuary and promulgate reg@lations implementing the designation if the Secretary-
                           (1) determines that the designation will fulfill the purposes and policies of this title; and
                           (2) finds that-
                                   (A) the area is of specialnational significance due to its resource or human-use values;
                                   (B) existing State and Federal authorities are inadequate or should be supplemen'ted to ensure
                                   coordinated and comprehensive conservation and management of the area, including resource
                                   protection, scientific research. and public education;
                                   (C) designation of the area as a national marine sanctuary will facilitate the objectives in
                                   subparagraph (B); and
                                   (D) the area is of a size and nature dukt will permit comprehensive and coordinated conservation and
                                   management.

                    (b) FACTORS AND CONSULTATIONS REQUUtED IN MAKING DETERMINATIONS AND FINDINGS.-
                           (1) Factors.-For purposes of determining if an area of the marine environment meets the standards set forth
                           in subsection (a), the Secretary shall consider-                                      I
                                   (A) the area's 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 species assemblages, maintenance of critical habitat of
                                   endangered species, and the biogeographic representation of the site;
                                   (B) the area's historical, cultural. archaeologicaL or paleontological significance;
                                   (C) the present and potential uses of the area 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;
                                   (D) the present and potential activities that may adversely affect the factors identified in
                                   subparagraphs (A), (B), (C);
                                   (E) the existing State and Federal regulatory and management authorities applicable to the area and
                                   the adequacy of those authorities to fulfill the purposes and policies of this title;
                                   (F) the manageability of the area, including such factors as its size, its ability to be identified as a
                                   discrete ecological unit with definable boundaries, its accessibility, and its suitability for
                                   monitoring and enforcement activities;

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                   Hawaiian Islands Humpback Whale                                       Appendix B: National Marine Sanctuary Act
                   National Marine Sanctuary

                                     (G) the 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;
                                     (H) the negative impacts produced by management restrictions on income-generating activities
                                     such as living and nonliving resources development; and
                                     (1) the socioeconomic effects of sanctuary designation.

                            (2) Consultation.-In making determinations and findings, the Secretary shall consult with-
                                     (A) the Committee on Merchant Marine and Fisheries of the House of Representatives and the
                                     Committee on Commerce, Science, and Transportation of the Senate;
                                     (B) the Secretaries of State, Defense, Transportation, and the Interior, the Administrator, and the
                                     heads of other interested Federal agencies;
                                     (C) the responsible officials or relevant agency heads of the appropriate State and local government
                                     entities, including coastal zone management agencies, that will or are likely to be affected by the
                                     establishment of the area as a national marine sanctuary;
                                     (D) the appropriate officials of any Regional Fishery Management Council established by section
                                     302 of the Magnuson Act (16 U.S.C. 1852) that may be affected by the proposed designation; and
                                     (E) other interested persons.

                            (3) Resource Assessment Report.-In making determinations and findings, the Secretary shall draft, as part
                            of the environmental impact statement referred to in section 304(a)(2), a resource assessment report
                            documenting present and potential uses of the area, including commercial and recreational fishing, research
                            and education, minerals and. energy developmem subsistence uses, and other commercial governmental, or
                            recreational uses. The Secretary, in consultation with the Secretary of the Interior, shall draft a resource
                            assessment section for the report regarding any commercial, governmental, or recreational resource uses in
                            the area under consideration "t are subject to the primary jurisdiction of the Department of the Interior.
                            The Secretary, in consultation with the Secretary of Defense, the Secretary of Energy, and the
                            Administrator, shall draft a resource assessment section for the report including information on any past,
                            present.or proposed future disposal or discharge of materials in the vicinity of the proposed sanctuary.
                            Public disclosure by the Secretary of such information shall be consistent with national security
                            regulations.

                   Sec. 304. PROCEDURES FOR DESIGNATION AND IMPLEMENTATION
                   (a) SANCTUARY PROPOSAL.-
                            (1) Notice.-In proposing to designate a national marine sanctuary, the Secretary shall-
                                     (A) issue, in the Federal Register, a notice of the proposal, proposed regulations that may be
                                     necessary and reasonable to implement the proposal, and a summary of the draft management plan;
                                     (B) provide notice of the proposal in newspapers of general circulation or electronic media in the
                                     communities that may be affected by the proposal; and
                                     (C) on the same day the notice required by subparagraph (A) is issued, the Secretary shall submit
                                     to the Committee on Merchant Marine and Fisheries of the House of Representatives and the
                                     Committee on Commerce, Science. and Transportation of the Senate documents, including an
                                     executive summary, consisting of-
                                              (i) the terms of the proposed designation;
                                              (ii) the basis of the findings made under section 303(a) with respect to the area;
                                              (iii) an assessment of the considerations under section 303(b)(1);
                                              (iv) proposed mechanisms to coordinate existing regulatory and management authorities
                                              within the area;
                                              (v) the draft management plan detailing the proposed goals and objectives, management
                                              responsibilities, resource studies, interprIetive and educational programs, and enforcement.
                                              including surveillance activities for the area;
                                              (vi) an estimate of the annual cost of the proposed designation, including costs of
                                              personnel. equipment and facilities, enforcement, research, and public education;
                                              (vii) the draft environmental impact statement;

                   Final Environmental Impact Statement                                                                     Page 333
                   and Management Plan

                         Appendix B: National Marine Sanctuary Act.                                             Hawaiian Islands Humpback VVhale
                                                                                                                         National Marine Sanctuary

                                                       (viii) an evaluation of the advantages of cooperative State and Federal management if all
                                                       or part of a proposed marine sanctuary is within the territorial limits of any State or is
                                                       supeiJacent to the subsoil and seabed within the seaward boundary of a State, as that
                                                       boundary is established under the Submerged Lands Act (43 U.S.C. 1301 et seq.); and
                                                       (ix) the proposed regulations referred to in subparagraph (A).
                                   (2) Environmental Impact Statement.-71be Secretary shall--
                                            (A) prepare a draft environmental impact statement, as provided by the National Environmental
                                            Policy Act of 1969 (42 U.S.C. 4321 et seq.), on the proposal that includes the resource
                                            assessment report required under section 303(b)(3), maps depicting the boundaries of the proposed
                                            designated area. and the existing and potential uses and resources of the =a; and
                                            (B) make copies of the draft environmental impact statement available to the public.
                                   (3) Public Hearing.-No sooner than thirty days after issuing a notice under this subsection, the Secretary
                                   shall hold at least one public hearing in the coastal area or a*reas that will be most affected by the proposed
                                   designation of the area as a national marine sanctuary for the purpose of receiving the views of interested
                                   parties.
                                   (4)'Terms of Designation.-The terms of designation of a sanctuary shall include the geographic area
                                   proposed to be included within the sanctuary, the characteristics of the area that give it conservation,
                                   recreational, ecological, historical, research, educational, or esthetic value, and the types of activities that
                                   will be subject to regulation by the Secretary to protect those characteristics. The terms of designation may
                                   be modified only by the same procedures by which the original designation is made.
                                   (5) Fishing Regulation&-The Secretary shall provide the appropriate Regionaf Fishery Management
                                   Council with the opportunity to prepare draft regulations for fishing within the Exclusive Economic Zone
                                   as the Council may deem necessary to implement the proposed designation. Draft regulations prepared by
                                   the Council, or a Council determination that regulations are not necessary pursuant to this"paragraph, shall
                                   be accepted and issued as proposed regulations by the Secretary unless the Secretary finds that the Council's
                                   action fails to fulfill the purposes'and policies of this tide and the goals and objectives of the proposed
                                   designation. In preparing the draft regulations, a Regional Fishery Management Council shall use as
                                   guidance the national standards of section 301(a) of the Magnuson Act (16 U.S.C., 1851) to the extent that
                                   the standards are consistent and compatible with the goals and objectives of the proposed designation. The
                                   Secretary shall prepare the fishing regulations, if the Council declines to make a determination with respect
                                   to the need for regulations, makes a determination which is rejected by the Secretary, or fas to prepare the
                                   draft regulations. in a timely manner. Any amendments to the fishing regulations. shall be drafted, approved,
                                   and issued in the same manner as the original regulations.Ibe Secretary shall also cooperate with other
                                   appropriate fishery management authorities with rights or responsibilities within a proposed sanctuary at
                                   the earliest practicable stage in drafting any sanctuary fishing regulations.
                                   (6) Committee Action.-After receiving the documents under subsection (a)(1)(C), the Committee on
                                   Merchant Marine and Fisheries of the House of Representatives and the Committee on Commerce, Science,
                                   and Transportation of the Senate may each hold hearings on the proposed designation and on the matters set
                                   forth in the documents. If within the forty-five day period of continuous session of Congress beginning on
                                   the date of submission of the documents, either Committee issues a report concerning matters addressed in
                                   the documents, the Secretary shall consider this report before publishing a notice to designate the national
                                   marine sanctuary.

                         (b) TAKING EFFECr OF DESIGNATION&_
                                   (1) Notice.-In designating a national marine sanctuary, the Secretary shall publish in the Federal Register
                                   notice of the designation together with final regulations to implement the designation and any other matters
                                   required by law, and submit such notice to the Congress. 'Me Secretary shall advise the public of the
                                   availability of the final management plan and the final environmental impact statement with respect to such
                                   sanctuary. The Secretary shall issue a notice of designation with respect to a proposed national marine
                                   sanctuary site not later than 30 months after the date a notice declaring the site to be an active candidate for
                                   sanctuary designation is published in the Federal Register under regulations issued under this Act, or shall
                                   publish not later than such date in the Federal Register findings regarding why such notice has not been
                                   published. No notice of designation may occur until the expiration of the period for Committee -action under
                                   subsection (a)(6). The designation (and any of its terms not disapproved under this subsection) and

                         Page 334                                                                           Final Environmental Impact      Statement
                                                                                                                              and Management Plan

                    Hawaiian Islands Humpback Whale                                              Appendix B: National Marine Sanctuary Act
                    National Marine Sanctuary
                    MEEMMMMNPWN@

                              regulations shall take effect and become final after the close of a review period of forty-five days of
                              continuous session of Congress beginning on the day on which such notice is published unless in the case
                              of a natural [sic] marine sanctuary that is located partially or entirely within the seaward boundary of any
                              State, the Governor affected certifies to the Secretary that the designation or any of its terms is
                              unacceptable, in which case the designation or the unacceptable term shall not take effect in the area of the
                              sanctuary lying within the seaward boundary of the State.
                              (2) Withdrawal of Designation.--- If the Secretary considers that actions taken under paragraph (1) will affect
                              the designation of a national marine sanctuary in a manner that the goals and objectives of the sanctuary
                              cannot be fulfilled, the Secretary may withdraw the entire designation. If the Secretary does not withdraw the
                              designation, only those terms of the designation or not certified under paragraph (1) shall take effect.
                              (3) Procedures.- In computing the forty-five-day periods of continuous session of Congress pursuant to
                              subsection (a)(6) and paragraph (1) of this subsection- .
                                        (A) continuity of session is broken only by an adjournment of Congress sine die; and
                                        (B) the days on which either House of Congress is not in session because of an adjournment of
                                        more than three days to a day certain are excluded.

                    (c) ACCESS AND VALID RIGHT&-
                              (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 of access that is in. existence on the date of
                              designation of any national marine sanctuary.
                              (2) The exercise of a lease. permit, license, or right is subject to regulation by the Secretary consistent with
                              the purposes for which the sanctuary is designated.

                    (d) INTERAGENCY COOPERATION@-
                              (1) Review of Agency Actions.-
                                        (A) In General.-Federal agency actions internal or external to a national marine 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.
                                        (B) Agency Statements Required.- Subject to any regulations the Secretary may establish each
                                        Federal agency proposing an action described in subparagraph (A) shall provide the Secretary with a
                                        written statement describing the action and its potential effects on sanctuary resources at the
                                        earliest practicable time, b'ut in no case later than 45 days before the final approval of the action
                                        unless such Federal agency and the Secretary agree to a different schedule.
                              (2) Secretary's Recommended Alternative&-If the Secretary finds that a Federal agency action is likely to
                              destroy, cause the loss of, or injure a sanctuary resource, the Secretary shall (within 45 days of receipt of
                              complete information on the proposed agency action) recommend reasonable and prudent alternatives, which
                              may include conduct of the action elsewhere, which can be taken by the Federal agency in implementing the
                              agency action that will protect sanctuary resources.
                              (3) Response to Recommendations.-The agency head who receives the Secretary's recornmended
                              alternatives under paragraph (2) shall promptly consult with the Secretary on the alternatives. If the agency
                              head decides not.to follow the alternatives, the agency head shall provide the Secretary with a written
                              statement explaining the reasons for that decision.

                    (e) REVIEW OF MANAGEMENT PLAN&-Not more than 5 years after the date of designation of any national
                    marine sanctuary, and thereafter at intervals not exceeding 5 years, the Secretary shall evaluate the substantive
                    progress toward implementing the management plan and goals for the sanctuary, especially the effectiveness of
                    site-specific management techniques. and shall revise the management plan and regulations as necessary to fulfill the
                    purposes and policies of this tide.
                    Sec. 30S. APPLICATION OF REGULATIONS AND INTEiNATIONAL NEGOTIATIONS
                    (a) REGULATIONS.-Ibis title and the regulations issued under section 304 shall be applied in accordance with
                    generally recognized principles of international law, and in accordance with the treaties, conventions, and other
                    agreements to which the United States is a party. No regulation shall apply to or be enforced against a person who is
                    not a citizen, national, or resident alien of the United States, unless in accordance with-

                    Final Environmental Impact Statement                                                                                Page 335
                    and Management Plan

                        Appendix B:. National Marine Sanctuary Act                                           Hawaiian Islands Humpback Whale
                                                                                                                      National Marine Sanctuary

                                  (1) generally recognized principles of international law;
                                  (2) an agreement between the United States and the foreign state of which the person is a citizen; or
                                  (3) an agreement between the United States and- the flag state of a foreign vessel, if the person is a
                                  crewmember of the vessel.

                        (b) NEGOTIATIONS.-The Secretary of State, in consultation with the Secretary, shall take appropriate action to
                        enter into negotiations with other governments to make necessary arrangements for the protection of any national
                        marine sanctuary and to promote the purposes for which the sanctuary is established.

                        (c) 'NTERNATIONAL COOPERATION.-The Secretary, in consultation with the Secretary of State and other
                        appropriate Federal agencies, shall cooperate with other governments and international organizations in the
                        furtherance of the purposes and policies of this tide and consistent with applicable regional and multilateral
                        arrangements for the protection and management of special marine areas.

                        Sec. 306. PROHIBITED ACTIVITIES
                        It is unlawful to-
                                  (1) destroy cause the loss of, or injure any sanctuary resource managed under law or regulations for that
                                  sanctuary;
                                  (2) possess, sell. deliver, carry, transport, or ship by any means any sanctuary resource taken in violation of
                                  this section;
                                  (3) interfere with the enforcement of this tide; or
                                  (4) violate any provision of this tide or any regulation or permit issued pursuant to this title.

                        Sec. 307. ENFORCEMENT
                        (a) IN GENERAL.-Tbe Secretary shall conduct such enforcement activities as are necessary and reasonable to carry
                        out this title.

                        (b)POWERS OF AUTHORIMI) OFFICERS4--Any person who is authorized to enforce this tide may-
                                  (1) board. search, inspect, and seize any vessel suspected of being used to violate this tide or any regulation
                        or permit issued under this tide and any equipment, stores, and cargo of such vessel;    n'of thi ti
                                  (2) seize wherever found any sanctuary resource taken or retained in violatio         s de or any regulation
                        or permit issued under this tide;
                                  (3) seize any evidence of a violation of this tide or of any regulation or permit issued under this title;
                                  (4) execute any warrant or other process issued by any court of competent jurisdiction; and
                                  (5) exercise any other lawful authority.

                        (c) CrM PENALTEES.-
                                  (1) Civil penalty.-Any person subject to the jurisdiction of the United States who violates this title, or any
                                  regulation or permit issued under this tide shall be liable to the United States for a civil penalty of not
                                  more than $ 100,000 for each such violation, to be assessed by the Secretary. Each day of a continuing
                                  violation shall constitute a separate violation.
                                  (2) Notice.-No penalty shall be assessed under this subsection until after the person charged has been
                                  given notice and an opportunity for a hearing.
                                  (3) In Rem Jurisdiction.-A vessel used in violating this tide or any regulation or permit issued under this
                                  title shall be liable in rem for any civil penalty assessed for such violation. Such penalty shall constitute a
                                  maritime lien on the vessel and may be recovered in an action in rem in the district court of the United
                                  States having jurisdiction over the vessel.
                                  (4) Review of Civil Penalty.-Any person against whom a civil penalty is assessed under this subsection
                                  may obtain review in the United States district court for the appropriate district by filing a complaint in
                                  such court not later than 30 days after the date of such order.
                                  (5) Collection of Penalties.-If any person fails to pay an assessment of a civil penalty under this section
                                  after it has become a final and unappealable order, or after the appropriate court has entered final judgment in
                                  favor of the Secretary, the Secretary shall refer, the matter to the Attorney General, who shall recover the

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                               amount assessed in any appropriate district court of the United States. In such action, the validity and
                               appropria,'teness of the final order imposing the civil penalty shall not be subject to review.
                               (6) Comprormse or Other Action by'Secretary.-The Secretary may compromise, modify, or remit, with or
                               without conditions, any civil penalty which is or may be imposed under this section.

                     (d) FORFEITURE.-
                               (1) In GeneraL-Any vessel (including the vessel's equipment, stores, and cargo) and other item used, and
                               any sanctuary resource taken or retained, in any manner, in connection with or as a result of any violation
                               of this title or of any regulation or permit issued under this title shall be sub ect to forfeiture to the United
                                                                                                               j
                               States pursuant to a civil proceeding under this subsection. The proceeds from forfeiture actions under this
                               subsection shall constitute a separate. recovery in addition to any amounts recovered as civil penalties under
                               this section or as civil damages under section 312. None of those proceeds shall be subject to set-off.
                               (2) Application of the Customs Laws.-The Secretary may exercise the authority of any United States
                               official granted by any relevant customs law relating to the seizure, forfeiture, condemnation, disposition,
                               remission, and mitigation of property in enforcing this tide.
                               (3) Disposal of Sanctuary Resources.-Any sanctuary resource seized pursuant to this tide may be disposed
                               of pursuant to an order of the appropriate court or, if perishable, in a manner prescribed by regulations
                               promulgated by the Secretary. Any proceeds fi-om the sale of such sanctuary resource shall for all purposes
                               represent the sanctuary resource so disposed of in any subsequent legal proceedings.
                               (4) Presumption.-For the purposes of this section there is a rebuttable presumption that all sanctuary
                               resources found on board a vessel that is used or seized in connection with a violation of this title or of any
                               regulation or permit issued under this tide were taken or retained in violation of this title or of a regulation
                               or permit issued under this tide.

                     .(e) PAYMENT OF STORAGE, CARE, AND OTHER COSTS.-
                               (1) Expenditures.-
                                         (A) Notwithstanding any other law, amounts received by the United States as civil penalties,
                                         forfeitures of property, and costs imposed under paragraph (2) shall be retained by the Secretary in
                                         the manner provided for in section 107(f)(1) of the Comprehensive Environmental Response,
                                         Compensation and Liability Act of 1980.
                                         (B) Amounts received under this section for forfeitures and costs imposed under paragraph (2) shall
                                         be used to pay the reasonable and necessary costs incurred by the Secretary to provide temporary
                                         storage, care, maintenance, and disposal of any sanctuary resource or other property seized in
                                         connection with a violation of this tide or any regulation or permit issued under this title.
                                         (C) Amounts received under this section as civil penalties and any amounts remaining after the
                                         operation of subparagraph (B) shall be used, in order of priority, to-
                                                  (i) manage and improve the national marine sanctuary with respect to which the violation
                                                  occurred that resulted in the penalty or forfeiture;
                                                  (ii) pay a reward to any person who ftulaishes information leading to an assessment of a
                                                  civil penalty, or to a forfeiture of property, for a violation of this tide or any regulation
                                                  or permit issued under this title; and
                                                  (iii) manage and improve any other national marine sanctuary.
                               (2) Liability for Costs.-Any person assessed a civil penalty for a violation of this title or of any
                               regulation or permit issued under this tide, and any claimant in a forfeiture action brought for such a
                               violation, shall be liable for the reasonable costs incurred by the Secretary in storage, care, and maintenance
                               of any sanctuary resource or other property seized in connection with the violation.

                     (f) SUBPOENAS.-In the case of any hearing under this section which is determined on the record in accordance
                     with the procedures provided for under section 554 of tide 5, United States Code, the Secretary may issue subpoenas
                     for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and may
                     administer oaths.

                     (g) USE OF RESOURCES OF STATE AND OTHER FEDERAL AGENCIES.-The Secretary shall, whenever
                     appropriate, use by agreement the personnel, services, and facilities of State and other Federal departments, agencies,

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                     and instrumentalities, on a reimbursable or nonreimbursable basis, to carry out the Secretary's responsibilities under
                     this section.

                     (h) COAST GUARD AUTHORITY NOT LIMITEI).-Nothing in this section shall be considered to limit the
                     authority of the Coast Guard to enforce this or any other Federal law under section 89 of title 14, United States
                     Code.

                     (i) INJUNCTIVE RELIEF.-If the Secretary determines that there is an imminent risk of destruction or loss of or
                     injury to a sanctuary resource, or that there has been actual destruction or loss of, or injury to, a sanctuary resource
                     which may give rise to liability under section 312, the Attorney General, upon request of the Secretary, shall seek to
                     obviin such relief as may be necessary to abate such risk or actual destruction, loss, or injury, or to restore or replace
                     the sanctuary resource, or both. The district courts of the United States shall have jurisdiction in such a case to order
                     such relief as the public interest and the equities of the casemay require.

                     0) AREA OF APPLICATION AND ENFORCEABUM.-The area of application and enforceability of this title
                     includes the territorial sea of the United States, as described in Presidential Proclamation 5928 of December 27,
                     1988, which is subject to the sovereignty of the United States, and the United States exclusive economic zone,
                     consistent with international law.

                     Sec. 308. SEVERABILITY
                     If any provision of this Act or the application thereof to any person or circumstances is held iivalid, the validity of
                     theremainder of this Act and of the application of such provision to other persons and circumstances shall not be
                     affected thereby.

                     Sec. 309. RESEARCH, MONITORING, AND, EDUCATION
                     (a) IN GENERAL.-Tbe Secretary shall conduct research, monitoring, evaluation, and education programs as are
                     necessary and reasonable to carry out the purposes and policies of this tide.

                     (b) PROMOTION AND COORDINATION OF SANCTUARY USE.-The Secretary shall take such action as is
                     necessary and reasonable to promote and coordinate the use of national marine sanctuaries for research, monitoring,
                     and education purposes. Such action may include consulting with Federal agencies, States, local governments,
                     regional agencies. interstate agencies, or other persons to promote use of one or more sanctuaries for research,
                     monitoring, and education, including coordination with the National Estuarine Research Reserve System.

                     Sec. 310. SPECIAL USE PERMITS
                     (a) ISSUANCE OF PERMIT&-The Secretary may issue special use permits which authorize the conduct of
                     specific activities in a national marine sanctuary if the Secretary determines such authorization is necessary-
                            (1) to establish conditions of access to and use of any sanctuary resource; or
                            (2) to promote public use and understanding of a sanctuary resource.

                     (b) PERMIT TERMS.-A permit issued under this section-
                            (1) shall authorize the conduct of an activity only if that activity is compatible with the purposes for which
                            the sanctuary is designated and with protection of sanctuary resources;
                            (2) shall not authorize. the conduct of any activity for a period of more than 5 years unless renewed by the
                            Secretary;
                            (3) shall require the activities carried out under the permit be conducted in a manner that does not destroy,
                            cause the loss of, or injure sanctuary resources; and
                            (4) shall require the permittee to purchase and maintain comprehensive general liability insurance against
                            claims arising out of activities conducted under. the permit and to agree to hold the United States harmless
                            against such claims.

                     (c) FEES.-
                            (1) Assessment and Collection.-The Secretary may assess and collect fees for the conduct of any activity'
                            under a permit issued under this section.

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                             (2) Amount.-The amount of a fee under this subsection shall be equal to the sum of-
                                       (A) costs incurred, or expected to be incurred, by the Secretary in issuing the permit;
                                       (B) costs incurred, or expected to be incurred, by the Secretary hs a direct result of the conduct of
                                       the activity for which the permit is issued, including costs of monitoring the conduct of the
                                       activity; and
                                       (C) an amount which represents the fair market value of the use of the sanctuary resource and a
                                       reasonable, return to the United States Government.
                             (3) Use of Fees.-Arnounts collected. by the Secretary in the form of fees under this section may be used by
                             the Secretary-
                             (A) for issuing and administering permits under this section; and
                             (B) for expenses of designating and managing national marine sanctuaries.

                    (d) VIOLATIONS.-Upoa violation of a term or condition o         f a permit issued under this section, the Secretary
                    may-
                             (1) suspend or revoke the permit without compensation to the permittee and without liability to the United
                             States;
                             (2) assess a civil penalty in accordance with section 307; or
                             (3) both.

                    (e) REPO]kTS.-Each person issued a permit under this section shall submit an annual report to the Secretary not
                    later than December 31 of each year which describes activities conducted under that permit and revenues derived from
                    such activities during the year.

                    (f) FISHING.-Nothing in this section shall be considered to require a person to obtain a permit under this section
                    for the conduct of any fishing activities in a national marine sanctuary.

                    Sec. 311.. COOPERATIVE AGREEMENTS, DONATIONS, AND ACQUISITIONS
                    (a) COOPERATIVE AGREEMENTS, GRANTS AND OTHER AGREENIENTS.-The Secretary may enter into
                    cooperative agreements, financial agreements, grants, contracts, or other agreements with States, local -governments,
                    regional agencies, interstate agencies, or other persons to carry out the purposes and policies of this iitle.

                    (b) AUTHORIZATION TO SOLICIT DONATIONS.-The Secretary may enter into such agreements with any
                    nonprofit organization authorizing the organization to solicit private donations to carry out the purposes and policies
                    of this title.

                    (c) DONAIIONS.-Tbe Secretary may accept donations of funds, property, and services for use in designating and
                    administering national marine sanctuaries under this title. Donations accepted under this section shall be considered
                    as a gift or bequest to or for the use of the United States.

                    (d) ACQUISITIONS.-Ibe Secretary may acquire by purchase, lease, or exchange, any land, facilities, or other
                    property necessary and approphate to carry out the purposes and policies of this title

                    ,Sec. 312. DESTRUCTION OR LOSS OF, OR INJURY TO, SANCTUARY RESOURCES
                    (a) LIABILITY FOR INTEREST.--@-
                             (1) Liability to United States.-Any person who destroys, causes the loss of, or injures any sanctuary
                             resource is liable to the United States for an amount equal'to the sum of-
                                       (A) the amount of response costs and damages resulting from the destruction, loss, or injury, and
                                       (B) interests on that amount calculated in the manner describedunder. section 1005 of the Oil
                                       Pollution Act of 1990.
                             (2) Liability In Rem.-Any vessel used to destroy, cause the loss Qf, or injure any sanctuary resource shall
                             be liable in rem to the United States for response costs and damages resulting from such destruction, loss,
                             or injury. The amount of that liability shall constitute a maritime lien on the vessel and maybe recovered
                             in an action in rem in the district court of the United States having jurisdiction over the vessel.
                             (3) Defenses,--A person is not liable under this subsection if that person establishes that-
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                                          (A) the destruction or loss of, or injury to, the sanctuary resource was caused solely by an act of
                                          God, an act of war, or an act or omission of a third party, and the person acted with due care;
                                          (B) the destruction, loss, or injury was caused by an activity authorized by Federal or State law; or
                                          (C) the destruction, loss, or injury was negligible.
                                 (4) Limits to Liability@- Nothing in sections 4281-4289 of the Revised Statutes of the United States or
                                 section 3 of the Act of February. 13, 1893, shall limit the liability of any person- under this title.

                        (b) RESPONSE ACTIONS AND DAMAGE ASSESSMENT.-
                                 (1) Response Actions.-The Secretary May undertake or authorize all necessary actions to prevent or
                                 minimize the destruction or loss of, or injury to, sanctuary resources, or to minimize the imminent risk of
                                 such destruction, loss, or injury.
                                 (2) Damage Assessment.-The Secretary shall assess damages to sanctuary resources in accordance with
                                 section 302(6).

                        (c) CIVIL ACTIONS FOR RESPONSE COSTS AND DAMAGES.-The Attorney General, upon request of the
                        Secretary, may commence a civil action in the United States district court for the appropriate district against any
                        person or vessel who may be liable under subsection (a) for response costs and damages. The Secretary, acting as
                        trustee for sanctuary resources for the United States, shall submit a request for such an action to the Attorney General
                        whenever a personmay be liable for such costs or damages.

                        (d) USE OF RECOVERED AMOUNTS.-Response costs and damages recovered by the Secretary under this section
                        shaI11 be retained by the Secretary in the manner provided for in section 107(f)(1) of the Comprehensive
                        Environmental Response, Compensation and Liability Act (42 U.S.C. 9607(f)(1)), and used as follows:
                                 (1) Response Costs And Damage Assessments.- Twenty percent of amounts recovered under this section,
                                 up to a maximum balance of $750,000, shall be used to finance response actions and damage assessments
                                 by the Secretary.
                                 (2) Restoration, Replacement, Management, And Improvement.-Amounts remaining after the operation of
                                 paragraph (1) shall be used. in order of priority-
                                          (A) to restore, replace, or acquire the equivalent of the sanctuary resources which were the subject
                                          of the action;
                                          (B) to manage and improve the national marine sanctuary within which are located the sanctuary
                                          resources which were the subject of the action; and
                                          (C) to manage and improve any other national marine sanctuary.
                                 (3) Federal-State Coordinatiom-Amounts recovered under this section with respect to sanctuary resources
                                 lying within the jurisdiction of a State shall be used under paragraphs (2)(A) and (B) in accordance with the
                                 court decree or settlement agreement and an agreement entered into by the Secretary and the Governor of that
                                 State.

                        Sec., 313. AUTHORIZATION OF APPROPRIATIONS
                        There are authorized to be appropriated to the Secretary to carry out this tide the following: (1) $12,000,000 for
                        fiscal year 1997; (2) $15,000,000 for fiscal year 1998; and (3) $18,000,000 for fiscal year 1999.

                        Sec., 314. U.S.S.     MONITOR ARTIFACTS AND MATERIALS
                        (a) CON  GRESSIONAL POLICY. - in recognition of the historical significance of the wreck of the United States
                        ship Monitor to coastal North Carolina and to the, area off the coast -of North Carolina known as the Graveyard of the
                        Atlantic, the Congress directs that a suitable display of artifacts and materials from the United States ship Monitor
                        be maintained permanently at an appropriate site in coastal North Carolina. [P.L. 102-587 authorized a grant for the
                        acqtdsition of space in Hatteras Village, NC, for display of artifacts and administration and operations of the Monitor
                        National Marine Sanctuary.]

                           INTERPRETATION AND DISPLAY OF ARTIFACTS.-
                                 (1) Submission Of Plan. - The Secretary shall, within six months after the date of the enactment of this
                                 section, submit to the Committee on Merchant Marine and Fisheries of the House of Representatives a plan
                                 for a suitable display in coastal North Carolina of artifacts and materials of the United States ship Monitor.
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                           (2) Contents Of Plan.-Ibe plan submitted under subsection (a) shall, at a minimum, contain-
                                   (A) an identification of appropriate sites in coastal North Carolina, either existing or proposed, for
                                   display of artifacts and materials of the United States ship Monitor;
                                   (B) an identification of suitable artifacts and materials, including artifacts recovered or proposed for
                                   recovery, for display in coastal North Carolina,
                                   (C) an interpretive plan for the artifacts and materials which focuses on the sinking, discovery, and
                                   subsequent management of the wreck of the United States ship Monitor, and
                                   (D) a draft cooperative agreement with the State of North Carolina to implement the plan.

                  (c) DISCLkH"R -This section shall not affect the following-
                           (1) Responsibilities Of Secretary.-The responsibilities of the, Secretary to provide for the protection,
                           conservation, and display of artifacts and materials from the United States ship Monitor.
                           (2) Authority Of Secretary.-The authority of the Secretary to designate the Mariner's Museum, located at
                           Newport News, Virginia, as the principal museum for coordination of activities referred to in paragraph (1).

                  [NOTE: Section 4 of the National Marine Sanctuaries Preservation Act, Pub. L. 104-283, requires the Secretary to
                  prepare a plan for the management, stabilization, preservation, and recovery of artifacts and materials of the U.S.S.
                  Monitor.]

                  Sec. 315. ADVISORY COUNCILS
                  .(a) ESTABLISHMENT.-Ibe Secretary may establish one or more advisory councils (in this section referred to as
                  an 'Advisory Council) to provide assistance to the Secretary regarding the designation and management of national
                  marine sanctuaries. The Advisory Councils shall be exempt from the Federal Advisory Committee Act.

                  (b) MEMBERSHIP.-Members of the Advisory Councils may be appointed from among-
                           (1) persons employed by Federal or State agencies with expertise in management of natural resources;
                           (2) members of relevant Regional Fishery Management Councils established under section 302 of the
                           Magnuson Fishery Conservation and Management Act; and
                           (3) representatives of local user groups, conservation and other public interest organizations, scientific
                           organizations. educational organizations, or others interested in the protection and multiple use management
                           of sanctuary resources.

                  (c) UNM ON MEMBERSHIP.-For sanctuaries designated after the date of enactment of the National Marine
                  Sanctuaries Program Amendments Act of 1992, the membership of Advisory Councils shall be limited to no more
                  than 15 members.

                  (d) STAFFING AND ASSISTANCE.-Ibe Secretary may make available to an Advisory Council any staff,
                  information, administrative services, or assistance the Secretary -determines am reasonably required to enable the
                  Advisory Council to carry out its functions.

                  (e) PUBLIC PARTICIPATION AND PROCEDURAL MATrERS.-Tbe following guidelines apply with respect
                  to the conduct of business meetings of an Advisory Council:
                           (1) Each meeting shall be open to the public, and interested persons shall be permitted to present oral or
                           written statements on items on the agenda.
                           (2) Emergency meetings may be held at the call of the chairman or presiding officer.
                           (3) Timely notice of each meeting, including the time, place, and agenda of the meeting, shall be published
                           locally and in the Federal Register. except that in the case of a meeting of an Advisory Council established
                           to provide assistance regarding any individual national marine sanctuary the notice is not required to be'
                           published in the Federal Register.
                           (4) Minutes of each meeting shall be kept and 'contain a summary of the attendees and matters discussed.

                  Sec. 316. ENHANCING SUPPORT FOR NATIONAL MARINE SANCTUARIES
                  (a) AUTHORITY.- The Secretary may establish a program consisting of--

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                                 (1) the creation, adoption, and publication in the Federal Register by the Secretary of a symbol for the
                                 national marine sanctuary program, or for individual national marine sanctuaries;
                                 (2) the solicitation of persons to be designated as official sponsors of the national marine sanctuary program
                                 or of individual national marine sanctuaries;
                                 (3) the designation of persons by the Secretary as official sponsors of the national marine sanctuary program
                                 or of individual sanctuaries;
                                 (4) the authorization by the Secretary of the usi of any symbol published under paragraph (1) by official
                                 sponsors of the national marine sanctuary program or of individual national marine sanctuaries;
                                 (5) the creation, marketing, and selling of products to promote the national marine sanctuary program, and
                                 entering into exclusive or nonexclusive agreements authorizing entities to create, market or sell on the
                                 Secretary's behalf,
                                 (6) the solicitation and collection by the Secretary of monetary or in-kind contributions from official
                                 sponsors for the manufacture, reproduction or use of the symbols published under paragraph (1);
                                 (7) the retention of any monetary or in-kind contributions collected under paragraphs (5) and (6) by the
                                 Secretary; and
                                 (8) the expenditure and use of any monetary and in-kind contributions, without appro   priation, by the
                                 Secretary to designate and manage national marine sanctuaries.

                        Monetary and in-kind contributions raised through the sale, marketing, or use of symbols and products related to an
                        indi vidual national manne sanctuary shall be used to support that sanctuary.

                        (b): CONTRACT AUTHORrrY.- The Secretary may contract with any person for the creation of symbols or the-
                        solicitation of official sponsors under subsection (a).

                        (c) RESTRICITONS.- The Secretary may restrict the use of the symbols published under subsection (a), and the
                        designation of official sponsors of the national marine sanctuary program or of individual national marine sanctuaries
                        to ensure compatibility with the goals of the national marine sanctuary program.

                        (d) PROPERTY OF UNITM STATE&- Any symbol which is adopted by the Secretary and published in the
                        Fedcaial Register under subsection (a) is deemed to be the property of die United States.

                        (e) PROHIBrI7ED ACrIVTnES.- It is unlawful for any person-
                                 (1) designated as an official sponsor to influence or seek to influence any decision by the Secretary or any
                                 other Federal official related to the designation or 'management of a national marine sanctuary, except to the
                                 extent that a person who is not so designated may do so;
                                 (2) to represent himself or herself to be an official sponsor absent a designation by the Secretary;
                                 (3) to manufacture, reproduce, or use any symbol adopted by the Secretary absent designation as an official
                                 sponsor and without payment of a monetary or in-kind contribution to the Secretary; and
                                 (4) to violate any regulation promulgated by the Secretary under this section.

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                                                              Oceans Act, of 1992

                   Sections 2202 - 2307 of the Oceans Act of 1992, as amended by Pub. L. 104-283, contain provisions pertaining to
                   National Marine Sanctuaries.

                   Sec. 2202. STELLWAGEN BANK NATIONAL MARINE SANCTUARY

                   (a) DESIGNATIOM-1he area described in subsection (b) is designated as the Stellwagen Bank National Marine
                   Sanctuary (hereafter in this section re&rred to as the "Sanctuary").

                   (b) AREA.-The Sanctuary shall consist of all submerged lands and waters, including living and nonliving marine
                   resources within those waters, bounded by the area described as Boundary Alternative 3 in the Draft Environmental
                   Impact Statement and Management Plan for the Proposed Stellwagen Bank National Marine Sanctuary, published by
                   the Department of Commerce in January 199 1, except that the western boundary shall be modified as follows:
                           (1) The southwestem comer of the Sanctuary shall be located at a point off Provincetown, Massachusetts, at
                           the following coordinates: 42 degrees, 7 minutes, 44.89 seconds (latitude), 70 degrees, 28 minutes, 15.44
                           seconds (longinide).
                           (2) The northwestern comer of the Sanctuary shall be located at a point off Cape Ann, Massachusetts, at the
                           following coordinates: 42 degrees, 37 minutes, 53.52 seconds (latitude), 70 degrees, 35 minutes, 52.38
                           seconds (longitude).

                   (c) MANAGEMENT.-The Secretary of Commerce shall issue a management plan for the Sanctuary in-accordance
                   with section 304 of the Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1434), as amended by
                   this title.

                   (d) SAND AND GRAVEL MR41NG ACTIVITIES PROHIBITED.-Notwithstanding any other provision of law,
                   exploration for. and mining of. sand and gravel and other minerals in the Sanctuary is prohibited.

                   (e) CONSULTATION.-In accordance with the procedures established in section 304(d) of the Marine Protection,
                   Research, and Sanctuaries Act of 1972, as amended by this tide, the appropriate Federal agencies shall consult with
                   the Secretary on proposed agency actions in the vicinity of the Sanctuary that may affect sanctuary resources.

                   M AUTHORIZATIONThere am authorized to be appropriated to the Secretary of Commerce for carrying out the
                   purposes of this section $570,000 for fiscal year 1993 and $250,ObO for fiscal year 1994.

                   (g) OFRCE@-The Secretary of Commerce shall consider establishing a satellite office for the Stellwagen Bank
                   National Marine Sanctuary in Provincetown, Gloucester, or Hull, Massachusetts.

                   (NOTE: Section I I of the National Marine Sanctuaries Preservation Act, Pub. L. 104-283, changed the name of
                   this sanctuary to the. Gerry E. Studds Stellwagen Bank National Marine Sanctuary.]

                   Sec. 2203. MONTEREY BAY NATIONAL MARINE SANCTUARY

                   (a) ISSUANCE OF DESIGNATION NOTICE.-Notwithstanding section 304(b) of the Marine Protection,
                   Research, and Sanctuaries Act of 1972 (16 U.S.C. 1434(b)), the designation of the Monterey Bay National Marine
                   20 Sanctuary (hereafter in this section the "Sanctuary"), as described in the notice of designation submitted. to the
                   Congress on September 15, 1992, shall take effect on September 18, 1992.

                   (b) OIL AND GAS ACTIVITIES PROHIBITED.-Notwithstanding any other provision of law, no leasing,
                   exploration, development, or production of oil or gas shall be permitted within the Sanctuary as provided by section
                   944.5 of the National Environmental Impact Statement and Management Plan for the Monterey Bay National Marine
                   Sanctuary, published by the Department of Commerce in June 1992.

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                        (c),CONSULTATIO14.--Section 304(e) of the Marine Protection, Research, and Sanctuaries Act of 1972, as
                        amended by this tide, shall apply to the Sanctuary as designated by the Secretary of Commerce.

                        (d) 'VESSEL TRAFFIC@-Within 18 months after the date of enactment of this title, the Secretary of Commerce and
                        the Secretary of Transportation, in consultationwith the State of California and with adequate opportunity for public
                        comment@ shall report to Congres@s on measures for regul  ating vessel traffic in the Sanctuary if it is determined that
                        such measures are necessary to protect sanctuary re@sources.

                        Sec., 2209. FLOREDA KEYS NATIONAL MARINE SANCTUARY,

                        (a) IMPLEMENTATION.-Section 8 of the Florida Keys National Marine Sanctuary and Protection Act (16
                        U.S.C. 1433 note) is amended by adding at the end the following new subsection:

                        (d) IMPLEMENTATIOK-
                                 (1) The Administrator of the Environmental Protection Agency and the Governor of the State of Florida
                                 shall implement the program required by this section, in cooperation with the Secretary of Commerce.
                                 (2)(A) The Regional Administrator of the Environmental Protection Agency shall with the Governor of the
                                 State of Florida establish a Steering Committee to set guidance and policy for the development and
                                 implementation of such program. Membership shall include m7resentatives of the Environmental
                                 Protection Agency, the National Park Service, the United States Fish and Wildlife Service, the Army Corps
                                 of Engineers, the National Oceanic and Atmospheric Administration, the Florida Department of
                                 Community Affairs, the Florida Department of Environmental Regulation, the South Florida Water
                                 Management District. and the Florida Keys Aqueduct Authority; three individuals in local government in
                                 the Florida Keys; and three citizens knowledgeable about such program.
                                 (B) The Steering Committee shall, on a biennial basis, issue a report to Congress that-
                                           ,i) summarizes the progress of the program;
                                          (ii) summarizes any modifications to the program and its recommended actions and plans; and
                                          (iii) incorporates, specific recommendations concerrimig the implementation of the program.
                                 (C) The Administrator of the Environmental Protection Agency and the Administrator of the National
                                 Oceanic and Atmospheric Administration shall cooperate with the Florida Department of Environmental
                                 Regulation to establish a Technical Advisory Committee to advise the Steering Committee and to assist in
                                 the design and prioritization of programs for scientific research and monitoring. The Technical Advisory
                                 Committee shall be composed of scientists from Federal agencies, State agencies, academic institutions,
                                 private non-profit organizations, and knowledgeable citizens.
                                 (3)(A) The Regional Administrator of the Environmental Protection Agency shal      'I appoint a Florida Keys
                                 Liaison Officer. The Liaison Officer, who shall be located within the State of Florida, shall have the
                                 authority and staff to-
                                          (i) assist and support the implementation of the program required by this section, including
                                          administrative and technical support for the Steering Committee and Technical Advisory
                                          Committee;
                                          (ii) assist and support local, State, and Federal agencies in developing and implementing specific
                                          action plans designed to carry out such program;
                                          (iii) coordinate the actions of the Environmental Protection Agency with other Federal agencies,
                                          including the National Oceanic and Atmospheric Administration and the National Park Service, and
                                          State and local authorities, in developing strategies to maintain, protect, and,improve water quality
                                          in the Florida Keys;
                                          (iv) collect and make available to the public publications, and other forms of information that the
                                          Steering Committee determines to be appropriate, related to the water quality in the vicinity of the
                                          Florida Keys; and
                                          (v) provide for public review and comment on the program and implementing actions.
                                 (4)(A) There are authorized to be appropriated to the Administrator of the Environmental Protection Agency
                                 $2,000,000 for fiscal year 1993, $3,000,000 for fiscal year 1994, and $4,000,000 for fiscal -year 1995, for
                                 the purpose of carrying out this section.

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                   Hawaiian Islands Humpback Whale                                    Appendix B: National Marine Sanctuary Act
                   National Marine Sanctuary

                           (B) There are authorized to be appropriated to the Secretary of Commerce $300,000 for fiscal year 1993,
                           $400,000 for fiscal year 1994, and $500,000 for fiscal year 1995, for the purpose of enabling the National
                           Oceanic and Atmospheric Administration to carry out this section.
                           (C) Amounts appropriated under this paragraph shall remam available until expended.
                           M) No more than 15 percent of the amount authorized to be appropriated under subparagraph (A) for any
                           fiscal year may be expended in that fiscal year on admimstrative expenses.

                   (b) TECHNICAL AN04DMENT.- Section 8(c) of the Florida Keys National Marine Sanctuary and Protection Act
                   (16 U.S.C. 1433 note) is amended by striking "paragraph (10" and inserting in lieu thereof "subsection(a)."

                                         Subtitle C Hawaiian Islands Humpback Whale Sanctuary

                   Sec. 2301.1 SHORT TITLE

                   This subtitle may be cited as the "Hawaiian Islands National Marine Sanctuary Act".

                   [NOTE: This subtitle was amended by section 7 of the National Marine Sanctuaries Preservation Act, Pub. L.
                   104-283. The full text of this Act can be found in Appendix C]

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                     Appendix B: National Marine Sanctuary Act                                 Hawaiian Islands Humpback Whale
                                                                                                       National Marine Sanctuary

                                                 TM PAGE DrIMMONALLY LEFr BLANK.

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                    Hawaiian Islands Humpback Whale                         Appendix C: Hawaiian Islands National Marine Sanctuary Act
                    National Marine Sanctuary
                                                                      Appendix C

                        HA wmiAN IsuNw HumPBA cK Mum NA 77oNAL Kuum SANcTuAR Y A cT,
                                SuBnTLE C oF PuBuc LAW 102-587, AS AMUNDED By P.L. 104-283.

                    Sec. 2301. Short Title.
                    This subtitle may be cited as the "Hawaiian Islands National Marine Sanctuary Act".

                    Sec. 2302. Findings.
                    The Congress finds the following:
                              (1) Many of the diverse marine resources and ecosystems within the Western Pacific region are of national
                              significance and importance.
                              (2) There are at present no ocean areas in the Hawaiian Islands designated as national marine sanctuaries or
                              identified on the Department of Commerce's Site Evaluation List of sites to be investigated as potential
                              candidates for designation as a national marine sanctuary under tide III of die Marine Protection, Research,
                              and Sanctuaries Act of 1972 (16 U.S.C. 1431 et seq.).
                              (3) The Hawaiian Islands consist of 8 major islands and 124 minor islands, with a total land area of 6,423
                              square miles and a general coastline of 750 miles.
                              (4) The marine environment adjacent to and between the Hawaiian Islands is a diverse and unique subtropical
                              marine ecosystem.
                              (5) The Department of Commerce recentlyconcluded in its Kahoolawe Island National Marine Sanctuary
                              Feasibility Study that there is preliminary evidence of biological, cultural, and historical resources adjacent
                              to Kahoolawe Island to merit further investigation for national marine sanctuary status.
                              (6) The Department of Commerce also concluded in its Kahoolawe Island National Marine Sanctuary
                              Feasibility Study that there are additional marine areas within the Hawaiian archipelago which merit further
                              consideration for national marine sanctuary status and that the national marine sanctuary program could
                              enhance marine resource protection in Hawaii.
                              (7) The Hawaiian stock of the endangered humpback whale, the largest of the three North Pacific stocks,
                              breed and calve within the waters of the main Hawaiian Islands.
                              (8) The marine areas surrounding the main Hawaiian Islands, which are essential breeding, calving, and
                              nursing areas for the endangered humpback whale, are subject to damage and loss of their ecological
                              integrity from a variety of disturbances.
                              (9) The Department of Commerce recently promulgated a humpback whale recovery plan which sets out a
                              series of recommended -goals and actions in order to increase the abundance of the endangered humpback
                              whale.
                              (10) An announcement of certain Hawaiian waters frequented by humpback whales as an active candidate for
                              marine sanctuary designation was published in the Federal Register on March 17, 1982 (47 FR 11544).
                              (11) Ile existing State and Federal regulatory and management programs applicable to the waters of the
                              main Hawaiian Islands are inadequate to provide the kind of comprehensive and coordinated conservation and
                                   gement of humpback whales and their habitat that is available under tide III of the Marine Protection,
                              Research. and Sanctuaries Act of 1972 (16 U.S.C. 1431 et seq.).
                              (12) Authority is needed for comprehensive and coordinated conservation and management of humpback
                              whales and their habitat that will complement existing Federal and State regulatory authorities.
                              (13) There is a need to support, promote, and coordinate scientific research on, and monitoring of, that
                              portion of the marine environment essential to the survival of the humpback whale.
                              (14) Public education, awareness, understanding, appreciation, and wise use of the marine environment are
                              fundamental to the protection and conservation of the humpback whale.
                              (15) The designation, as a national marine sanctuary, of the areas of the marine environment adjacent to the
                              main Hawaiian Islands which are essential to the continued recovery of the humpback whale is necessary for
                              the preservation and protection of this important national marine resource.
                              (16) 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

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                      Appendix C: Hawaiian Islands National Marine Sanctuary Act                 Hawaiian Islands Hump 'back Whale
                                                                                                         National Marine Sanctuary

                              sanctuary.

                      See. 2303. Definitions.
                      In this subtitle, the following definitions apply:
                              (1) 1"m term "adverw impace' means an impact that independently or cumulatively damages, diminishes,
                              degrades, impairs, destroys, or otherwise harnis.
                              (2) The term "Sanctuary" means. the Hawaiian Islands Humpback Whale National Marine Sanctuary
                              designated under section 2305.
                              (3) The term "Secretary" means the Secretary of Commerce.

                      Sec.. 2304. Policy And Purposes.
                      (a) POLICY.-It is the policy of the United States to protect and preserve humpback whales and their habitat within
                      the Hawaiian Islands marine environment.

                      (b) PURPOSES.-The purposes of this subtitle arc
                              (1) to protect humpback whales and their habitat in the area described in section 2305(b);
                              (2) to educate and interpret for the public the relationship of humpback whales to the Hawaiian Islands
                              marine environment;
                              (3) to manage such human uses of the Sanctuary consistent with this subtitle and tide M of the Marine
                              Protection, Research, and Sanctuaries Act of 1972. as amended by-this Act; and
                              (4) to provide for the identification of marine resources and ecosystems of national significance for possible
                              inclusion in the sanctuary designated in section 2305(a).

                      Sec. 230S. Designation Of Sanctuary.
                      (a) DESIGNATION.-Subject to subsection (c), the area described in subsection (b)(1) and any area included under
                      subsection (b)(2) are designated as the Hawaiian Islands Humpback Whale National Marine Sanctuary under tide III
                      of the Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1451 et seq.), as amended by this tide.

                      (b) @UtEA INCLUDED.-
                              (1) Subject to subsections (c) and (d), the area referred to in subsection (a) consists of 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 nautidal miles of the upper r6aches 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 (183-meter) isobath adjoining the Kilauea National Wildlife Refuge on the
                                      island of Kauai.
                              (2) (A) Virithin 6 months after the date of receipt of a request in writing from the Kahoolawe Island Reserve
                              Commission for inclusion widiin the Sanctuary of the area of the marine environment within 3 nautical
                              miles of the mean high tide line of Kahoolawe Island (in this section referred to as the 'Kahoolawe Island
                              waters'), the Secretary shall determine whether those. waters may be suitable for inclusion in the Sanctuary.
                                      (B) If the Secretary deWmines under subparagraph (A) that the Kahoolawe Island waters may be
                              suitable for inclusion within the Sanctuary -
                                              (i) the Secretary shall provide notice of that determination to the Govemor of Hawaii; and
                                              (ii) the Secretary shall prepare a supplemental environmental impact statement,
                                              management plan. and implementing regulations for that inclusion in accordance with
                                              this Act, the National Marine Sanctuaries Act, and the National Environmental Policy
                                              Act of 1969.
                              (3) The Secretary shall generally identify and depict the Sanctuary on National Oceanic and Atmospheric
                              Administration charts. Those charts shall be maintained on file and kept available for public examination
                              during regular business hours at the Office of Ocean and Coastal Resource Management of the National
                              Oceanic and AtmosphericAdministration. The Secretary shall update the charts to reflect any boundary
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                   Hawaiian Islands Humpback Whale                       Appendix C: Hawaiian Islands National Marine Sanctuary Act
                   National Marine Sanctuary

                            modification under subsection (d), and any additional designation under paragraph (2) of this subsection.

                   (c) EFFECT OF OBJECTION BY GOVERNOR.-
                            (1)(A) If, within 45 days after the date of issuance of the comprehensive' management plan and
                            implementing regulations under section 2306, the Governor of Hawaii certifies to the Secretary that the
                            management plan, the implementing regulations, or any term of the plan or regulations is unacceptable, the
                            management plan, regulation, or tem respectively, shall not take effect in the area of the Sanctuary lying
                            within the seaward boundary of the State of Hawaii.
                            (B) If the Secretary considers that an action under subparagraph (A) will affect the Sanctuary in such a
                            manner that the policy or purposes of this title cannot be fulfilled, the Secretary may terminate the
                            designation under subsection (a). At least 30 days before that termination, the Secretary shall submit written
                            .notice of the termination to the Committee on Resources of the House of Representatives and the
                            Committee on Commerce, Science, and Transportation of the Senate.
                            (2)(A) If, within 45 days after the Secretary issues the documents required under subsection (b)(2)(B)(ii), the
                            Governor of Hawaii certifies to the Secretary that the inclusion of the Kaboolawe Island waters in the
                            Sanctuary or any term of that inclusion is unacceptable--
                                     (i) the inclusion or the term shall not take effect; and
                                     (ii) subsection (b)(2) shall not apply during the 3-year period beginning on the date of that
                                     certification.
                            (B) If the Secretary considers that an action under subparagraph (A) regarding a term of the inclusion of the
                            Kaboolawe Island waters will affect the inclusion or the administration of the Kaboolawe Island waters as
                            part of the Sanctuary in such a manner that the policy or purposes of this title cannot be fulfilled, the
                            Secretary may terminate that inclusion.

                   (d) BOUNDARY MODIFICATIONS.-No later than 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. The
                   Secretary shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the
                   Committee on Merchant Marine and Fisheries of the House of Representatives a written notification of such
                   modifications.

                   Sec. 2306. Comprehensive Management Plan.
                   (a) PREPARATION OF PLAN.-The Secretary, in consultation with interested persons and appropriate federal, State,
                   and local government authorities, shall develop and issue not later than 18 months after the date of enactment of this
                   tide a comprehensive management plan and implementing regulations to achieve the policy and purposes of this
                   subtitle. In developing the plan and regulations, the Secretary shall follow the procedures specified in sections 303 and
                   304 of the Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1433 and 1434), as amended by this
                   title. Such comprehensive management plan shall-
                            (1) facilitate all public and privatevses 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;
                            (2) set forth the allocation of Federal and State enforcement responsibilities, as jointly agreed by the Secretary
                            and the State of Hawaii;
                            (3) identify research needs and establish a long-term ecological monitoring program with respect to humpback
                            whales and thew habitat;
                            (4) identify alternative sources of funding needed to fidly implement the plan's provisions and supplement
                            appropriations under section 2307 of this Subtitle and section 313 of the Marine Protection, Research, and
                            Sanctuaries Act of 1972 (16 U.S.C. 1444);
                            (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.

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                                                                                                  National Marine Sanctuary

                     (b) PUBLIC PARTICIPATION.-Ibe Secretary shall provide for participation by the general public in development of
                     the comprehensive management plan or any amendment thereto.

                     See. 2307. Limitation on User Fees.
                     (a) Limitation: 11e Secretary shall not institute any user fee under this Act or the National Marine Sanctuanes Act
                     for any activity within the Hawaiian Islands National Marine Sanctuary or any use of the Sanctuary or its resources.

                     (b) User Fee Defined: In this section, the term 'user fee' does not include-
                             (1) any fee authodzed by section 310 of the National Marine Sanctuaries Act;
                             (2) any gift or donation received under section 311 of that Act; and
                             (3) any monetary or in-kind contributions under section 316 of that Act.

                     Sec. 2308. Authorization of Appropriations.
                     For, carrying out this subtitle, there are authorized to be appropriated to the Secretary $500,000 for fiscal year 1993 and
                     $300,000 for fiscal year 1994. Of the amounts appropriated under this section for fiscal year 1993-
                             (1) not less than $50,,000 shall be used by the Western Pacific Regional Team to evaluate potential national
                             marine sanctuary sites for inclusion-on the Department of Commerce's Site Evaluation List; and
                             (2) not less than $50,000 shall be used to continue the investigation of biological, cultural, and historical
                             resources adjacent to Kaboolawe Island.

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                  Hawaiian Islands Humpback Whale                           Appendix D: Sanctuary Advisory Council Charter
                  National Marine Sanctuary

                                                            Appendix D

                          HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE
                                      SANCTUARY ADVISORY COUNCIL CHARTER

                                                          INTRODUCTION- -

                  The mission of the National Marine Sanctuary Program (NMSP) is to manage ocean, coastal and
                  Great Lakes areas of special national, and sometimes intemational, significance to protect their
                  ecological and cultural integrity, for the benefit of current and future generations. As the principal
                  steward of coastal and ocean resources, the National Oceanic and Atmospheric Administration's
                  (NOAA) Sanctuaries and Reserves Division (SRD) manages national marine sanctuaries using
                  ecologically sound principles of resource conservation; develops and implements stewardship,
                  education and research programs that foster public understanding, support, and participation; and
                  promotes the ecologically sustainable use of the Nation's natural and cultural marine resources.
                  The NMSP provides leadership and acts as a catalyst to link the assets and resources of
                  governmental and non-goverrunental organizations to focus people's attention on the need to
                  effectively and efficiently manage and protect marine resources.

                  The Hawaiian Islands Humpback Whale National Marine Sanctuary (the Sanctuary) was
                  designated by an Act of Congress (Title II, Subtitle C, Public Law 102-587, Hawaiian Islands
                  National Marine Sanctuary Act or Act) to recognize the importance of Hawaii's nearshore waters
                  which serve as the winter breeding, calving and nursing habitat essential to the long-term survival
                  and recovery of the North Pacific stock of the endangered humpback whale (Megaptera
                  novaeangeliae'). The Sanctuary, working in partnership with the State of Hawaii, its govemments
                  and citizens, will function to provide the protection needed to ensure that the whales and their
                  habitat are safe from harm and harassment 'while continuing to meet the needs of marine users of an
                  insular state. The Sanctuary is of national and intemational significance and the NOAA will
                  exercise its stewardship role with all affected interests in a manner which ensures the continuing
                  needs of the humpback whale and coastal and marine resource users. To this end, it is incumbent
                  on NOAA to solicit the valuable input of these many diverse interests through the establishment of
                  the Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council, pursuant to
                  Section 315 of the National Marine Sanctuaries Act (NMSA), 16 U.S.C. � 1445a.

                  The Act established the Sanctuary for the following purposes:

                  (1)     to protect the North Pacific population of Humpback Whales and their habitat within the
                          Sanctuary;
                  (2)     to educate and interpret for the public the relationship of Humpback Whales to the
                          Hawaiian Islands marine environment;
                  (3)     to manage human uses of the Sanctuary consistent with the Act and the NMSA, as
                          amended; and
                  (4)     to provide for the identification of marine resources and ecosystems of national significance
                          for possible inclusion in the Sanctuary.

                  As identified by the Act, the comprehensive management plan for the Sanctuary 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 the protection of humpback whales and their
                          habitat;
                  (2)     set forth the allocation of Federal and State enforcement responsibilities, as jointly agreed
                          by the Secretary and the State of Hawaii;

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                     Appendix D: Sanctuary Advisory Council Charter                       Hawaiian Islands Humpback Whale
                                                                                                 National Marine Sanctuary

                     (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 ftilly implement the plan's provisions and
                            supplement appropriations under section 2307 of this subtitle and section 313 of the NMSA
                            (16 U.S.C. �1444);
                     (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.

                                                           ESTABLISHMENT

                     Under Section 315 of the NMSA, 16 U.S.C.� 1445a, the Secretary of Commerce is authorized to
                     esuiblish Sanctuary advisory councils to provide assistance to the Secretary regarding the
                     -designation and management of national marine sanctuaries. The Director of the Office of Ocean
                     and. Coastal Resource Management, National Ocean Service, NOAA, hereby establishes the
                     Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council ("Council").

                                                     OBJECTIVES AND DUTIES

                     1 .    The Council, in accordance with the Act, shall provide advice and recommendations to
                            SRD, through the Sanctuary Manager' regarding the management of the Hawaiian Islands
                            Humpback Whale National Marine Sanctuary ("Sanctuary").
                    .2.     The Council shall act solely, as an advisory body. Nothing in this Charter constitutes
                            authority to perform operational or management functions, or to represent or make
                            decisions on behalf of the Sanctuary or NOAA.
                     3.     The Council shall draw on- the expertise of Its members and other sources in order to
                            provide advice and recommendations.
                     4.     The Council may serve as a forum for consultation and deliberation among its members and
                            as a source of advice to the Sanctuary Manager. Such advice shall fairly represent the
                            collective and individual -views of the Council members.

                                                       MEMBERS AND CHAIRS
                     The Council shall consist of no more than twenty-&e (25) voting members who shall be appointed
                     by -the Director, after consultation with the Office of the Governor, from among persons employed
                     byFederal, State or Local government agencies with expertise in management of natural resources,
                     members of the Western Pacific Fishery Management Council, representatives of native Hawaiian
                     groups, local user groups, representatives from adjacent counties, conservation and other public
                     interest organizations, scientific and educational organizations, and members of the public
                     interested in the protection and multiple use management of Sanctuary resources. The membership
                     is designed to be balanced in terms of interests represented, geographic representation, and
                     advisory functions the Council will perform.

                     There are two categories of seats for which voting members are appointed:

                      T1.e NOAA on-site liaison will serve in place of the Sanctuary Manager until such a position is created and filled.

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                   National Marine Sanctuary

                   1. Government (10 members):

                   By virtue of the shared functional responsibilities. of Federal and State jurisdictions in the
                   implementation of Sanctuary-related management, each of the following government entities shall
                   be requested to, designate one individual to serve on the Council. (Of the numerous responsibilities
                   encompassed within each entity, the specific functional area of expertise needing representation is
                   identified in parenthesis):

                           State of Hawaii (6):        State Planning (marine and coastal coordination and planning);
                   Department of Health (water quality management & monitoring); Department of Land and Natural
                   Resources (aquatic resources, marine conservation areas, boating, enforcement); Department of
                   Business, Economic Development and Tourism (marine recreation, development & tourism);
                   Kahoolawe Island Reserve Commission (resource management on and around. Kahoolawe);
                   Department of Education (marine education).

                           Federal (4): U.S. Army Corps of Engineers (water quality, dredge disposal & alteration of
                   seabed); U.S. Coast Guard (oil spills, enforcement); National Marine Fisheries Service (protected
                   species, enforcement); Western Pacific Regional Fisheries Management Council (fisheries
                   management).

                   2. Non-government (15 members):

                   A representative of each of the following interest groups or activities, which are integrally affected
                   by the management goals of the Sanctuary, will be selected: County-specific representativeS2                  (4);
                   native Hawaiian (1); research (1); education (1); conservation (1); whale watching (1);
                   business/commerce (1); ocean recreation (1); fishing (1); tourism (1); citizen-at-large (2).

                   NOTE. NOAA recognizes that a of the non-government userlinterest groups are comprised of
                   many different individuals and organizations, each representing specific interests. The selected
                   representative of each group will be encouraged to make concerted efforts to identify, contact and
                   coordinate with all the diverse organz    .zations and individuals comprising the respective group.

                                                        SELECTION PROCEDURES

                   The following procedures shall govern the application, nomination and appointment of Council
                   voting members.

                   (1) Initial Selection:

                   (a) Applications: To be considered for one of the 15 non-governmental seats on the                      Council,
                   interested individuals must submit a completed application to the Sanctuary Manager indicating
                   their particular interest, qualifications, and experience.
                   (b) Panel Selection: In seeking to ensure that the af6rementioned user groups and activities have a
                   voice on the Council and that a balance in interests and geographic representation is realized, a
                   candidate Selection Panel (P@mel) will be formed using the recommendations from members of the
                   State-administered Sanctuary Working Group (SWG). To assure balanced representation, two

                   2 County-specific representatives: Each of the four counties (Kauai, Honolulu, Maui, and Hawaii) will have a non-
                   governmental individual to represent the concerns of that county. This individual will establish a county-specific
                   working group and coordinate and consolidate the various views and concerns of the citizens of that particular county
                   and present them to the Council. The county groups shall include the County governments and involve the expertise
                   of the individual county Coastal Zone Managers.

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                     Appendix D: Sanctuary Advisory Council Charter                         Hawaiian Islands Humpback Whale
                                                                                                    National Marine Sanctuary

                     panel members will be SWG government representative's and two will be SWG private-sector
                     representatives. The fifth panel  'member will be the SWG member who receives the next highest
                     number of total votes. In the event that an elected member chooses not to serve on the selection
                     panel, the person with the next highest humber of votes in that category (government or non-
                     government) will be asked to serve. Once selected, panel members may-not substitute other
                     persons in their place.

                     All applications sent to the Sanctuary Manager will be forwarded to the Selection Panel, which will
                     evaluate the applicants and submit to the Sanctuary Manager a list identifying three candidates for
                     each of the 13 non-government special interest and county-specific seats (39 total). All remaining
                     candidates will be considered for the two citizen-at-large seats. SWG members who serve on the
                     Panel are eligible to be considered as one of the three candidates for selection -on the new Council if
                     the,
                        y submit an application and are selected by the Panel. However, that Panel member may not
                     vote on his or her own application.

                     (c).Final Candidate Selection: Final selection of the 13 non-government special interest and county-
                     specific Council members will be made from the candidate Selection Panel list (3 names for each-
                     seat) by the Sanctuary Manager and the Office of State Planning (OSP) with the concurrence of
                     SR.D. The Sanctuary Manager and OSP, with the concurrence with SRI), will also choose the two -
                     citizen-at-large seats from among those two out of three candidates that were not selected for the
                     special interest and county-specific seats, as well as those candidates that applied for citizen-at-
                     large seats. Final approval of all Council members is by the Director of the Office of Ocean and
                     Coastal Resource Management.
                     The non-governmental members will be appointed for a term of two years and may be reappointed.
                     During the initial term, however, SAC membership may change based upon the, final Sanctuary
                     boundary as reflected in the approved Final Environmental Impact Statement/Management Plan
                     (FEIS/MP) for the Sanctuary. If necessary, terms of appointment may be changed to provide for
                     balanced (staggered) expiration dates or to better reflect the final boundary as detailed in the
                     FEIS/MP. Vacancy appointments are for the remainder'of the unexpired term of the vacancy.
                     GoVemmental members serve at the discretion of their agency or entity and do not have a term

                     (2) Subsequent Up-ointments:

                     The! candidate Selection Panel will be terminated after the initial round of selections.            For
                     subsequent appointments, public notice shall be provided as to the vacancy of non-goverrunental
                     Council seat(s). Interested candidates will be required to submit written applications stating their
                     particular interest, qualifications, and experience. Guidelines for applying will be supplied at the
                     appropriate time. Applications for all vacant Council seats will be submitted directly to the
                     Sanctuary Manager.

                     Copies of all applications for each seat win be submitted by the Sanctuary Manager to the Council,
                     which will act as the preliminary- reviewing body for screening applications for evaluation. The
                     Council will recorhmend three candidates for each seat (if three are available) and subrrdt the names
                     to the Sanctuary Manager. Any Council member that has a conflict of interest (financial, personal,
                     self nomination,- etc.) shall excuse him/herself from making a selection        'for the vacant seat.
                     Selection from among those recommended by the Council, or from among other applicants, will be
                     made by the Sanctuary Manager, in. close consultation with the Governor's Office, with the
                     concurrence of the Sanctuaries and Reserves Division, and final -approval by the Director of the
                     Office of Ocean and Coastal Resource Management.

                     Page 354                                                            Final Environmental Impact Statement
                                                                                                        and Management Plan

                 Hawaiian Islands Humpback Whale                         Appendix D: Sanctuary Advisory Council Charter
                 National Marine Sanctuary

                 (3) Council Officers:

                 The Council shall elect one member to serve as Chair, one member to serve as Vice-Chair, and one
                 member to serve as Secretary. Election for all positions is by majority vote o        'f all Council
                 members. Members who will not be present at the time of the election may submit their vote in
                 writing to the Sanctuary Manager prior to the meeting.

                 The term of all officers (Chair, Vice-Chair, and Secretary) is one 'year. The Chair and Vice-Chair
                 may pot serve consecutive terms.

                 The Chair shall preside over meetings of the Council and shall, along with the Sanctuary Manager,
                 approve the location, times, and agendas of the meetings. The Vice Chair shall act as the* Chair in
                 the absence of the Chair. The Secretary shall be responsible for taking the official attendance at
                 each SAC meeting; working with Sanctuary staff in taking and distributing minutes of each SAC
                 meeting; recording official votes, as necessary; and working with Sanctuary staff to prepare a
                 yearly report of the Council's activities to be submitted to the Sanctuary Manager.

                 (4) Removal from Council:

                 The Director may remove a non-governmental member of the Council if it is found that the member
                 has violated one or more terms of this Charter. The Director may consult with the Council prior to
                 taking such an action. If a Council member fails to. attend three consecutive meetings, he or she
                 will be removed from the Council and the seat opened for nominations for a new representative.

                 If a government agency willingly decides to no longer participate as a member of the Council, has
                 violated one or more terms of t  'his Charter, fails to attend three consecutive meetings and/or-is
                 removed by the Director, the Sanctuary Manager will invite another appropriate agency to replace
                 that agency on the Council.

                                               SCOPE OF RESPONSIBILITIES

                 1 .     Resource protection: The Council may advise the Sanctuary Manager on the effectiveness
                 of interagency agreements, permit review and coordination, and on the* effectiveness of the
                 Sanctuary regulations in providing adequate resource protection.

                 2.      Research: The Council may advise the Sanctuary Manager on priority            research and
                 monitoring needs, proposals, and reports.

                 3.      Education: The Council may advise the Sanctuary Manager on enhancing public
                 awareness, understanding, and wise use of the marine environment and on the development of an
                 informed constituency.

                 4.      General Administration: The Council may advise, at the request of the Sanctuary Manager,
                 on proposal(s) for activities within the Sanctuary, and on proposals for activities outside of, but
                 affecting, the Sanctuary. It may also include advice on planning for the use, development, and
                 maintenance of Sanctuary lands and buildings and equipment.
                 5.      Program Modifications: The Council's advice will be sought in the process to identify
                 other resources of national significance which may be considered for future inclusion in the
                 Sanctuary; the review of any new regulations or modification of existing regulations developed
                 pursuant thereto or for any other purpose based on new findings or future needs; the review of
                 issues relating to boundary changes including the waters off the Island of Kahoolawe; and for
                 necessary modifications to the management plan.

                 Final Environmental Impact Statement                                                       Page 355
                 and Management Plan

                      Appendix D: Sanctuary Advisory Council Charter                            Hawaiian Islands Humpback Whale
                                                                                                        National Marine Sanctuary

                                                              ADMINISTRATION

                      1. Members of the Council shall serve without pay except that each member receives travel
                      expenses including per them in lieu of subsistence, in accordance with sections 5702 and 5703 of
                      Title 5. U.S.C., for travel to and from official Council meetings. Travel expenses for government
                      members of the Council may be provided by their own agencies.
                      2. The Sanctuary'Manager may make available such staff, information, administrative services, or
                      assistance as the Sanctuary Manager determines are reasonably required to enable the Council and
                      its subcommittees and working groups to cai-ry out their functions.

                                                                   OPERATION

                      L Conduct of Individual Members:

                      (a) No Council member may use or allow the use of,        for other than official purposes, information
                      obtained through or in connection with his or her         Council affiliation that has not been made
                      available to the general public.

                      (b) No, Council member may represent himself             or herself as a Council member to make
                      recommendations, express opinions, or otherwise speak on a matter of the HIHWNMS without
                      Council and Sanctuary Manager approval.

                      (c) Any Council member that has a conflict of interest (financial, personal, professional,         etc.) in
                      an), matter before the Council or its subcommittees or working groups shall recuse himself or
                      herself from any action on that matter including discussion and voting., actions.

                      (d) If any Council member's participation in any matter before the Council or its subcommittees or
                      Working groups creates the appearance of impropriety, that Council member shall recuse himself or
                      herself from any action on that matter including discussion and voting actions.

                      2. Conduct of the Council as a Body:

                      All communications that are intended to speak for the Council as a body must be coordinated with,
                      and approved by, the Chair. All communications must pertain to Sanctuary business.

                      3_.Council Letterhead:

                      The Council shall, with the assistance and approval of the Sanctuary Manager, design and use its
                      own letterhead that contains the following disclairner- "The Council is solely an advisory body.
                      These opinions and findings do not necessarily reflect the position of the Hawaiian Islands
                      Humpback Whale National Marine Sanctuary and the National Oceanic and Atmospheric
                      Ad-ministration." All correspondence from the Chair or other members of the Council, or the
                      Council as a body, shall be upon this letterhead.
                      I-Subcommittees and Working Groups:

                      (a) Subcommittees: The Council may establish such subcommittees as necessary to fulfill its
                      duties. Subcommittees will be composed solely of members of the Council and will be recognized
                      as official subunits of the Council. Subcommittees are subject to the requirements of this Charter.
                      (b) Working Groups: Working groups may be established by the Council with the appr             oval of the

                      Page 356                                                               Final Environmental Impact Statement
                                                                                                            and Management Plan

                 Hawaiian Islands Humpback Whale                          Appendix D: Sanctuary Advisory Council Charter
                 National Marine Sanctuary

                 Sanctuary Manager for general purposes such as research and education, or for specific purposes
                 or topics that-need more focused attention that cannot be accomplished by a subcommittee (e.g'.,
                 County.-specific representation). Working groups are composed of members of the Council and
                 persons outside the Council. Individuals with an interest or expertise in the subject area or issue to
                 be focused on by a working group may bea member of the working group. Working groups shall
                 be chaired by a member of the Council and will function under the purview of the Council.
                 Working groups established by the Council to address short-terni specific issues shall disband
                 once the final recommendation on the particular matter is submitted to the Council. Working
                 groups shall provide a general report to the Chair of the status of requested recommendations at
                 each meeting of the Council. Working groups will provide their recommendations to the Sanctuary
                 Manager and staff and the Council only. Any working group member that has a conflict of interest
                 (financial, personal, professional, etc.) in any matter before the working group shall rectise himself
                 or herself from any action on that matter including discussion and voting actions.

                 5. - Altemato: An alternate (from the same government entity) of a government Council member
                 may attend a Council meeting on occasion if the Chair of the Council is notified in advance of any
                 meeting at which an alternate will represent the Council member, including the name, address,, and
                 position of the individual designated. An alternate may not name another alternate. Alternates may
                 not be appointed for non-governmental seats.

                 6. Role of the Sanctuary Manage : The Sanctuary Manager sits as a non-voting member of the
                 Council, approves each meeting,.and approves the agenda as well as potential presentations for
                 each meeting. No meetings may be conducted in the absence of the Manager or his/her designee.

                 7. -Meetin2s:.'
                 (a) Meetings are held at the call of the Chair, with the approval of the Sanctuary Manager:

                 (b) Decisions and recommendations made by the Council are advisory only, and shall be made by
                 majority vote of those present. A vote may only occur if a quorum of members are present. For
                 the purposes of this Council the quorum is considered to be two-thirds, or seventeen, of its
                 members. A recorded vote may be, requested by the Chair or the Sanctuary Manager,

                 (c) Each meeting shall be open to the public.

                 (d) Members of the public shall be permitted the opportunity to present oral or written statements
                 pertaining to agenda items.

                 (e) Emergency meetings may be held at the call of the Chair, with the approval of the Sanctuary
                 Manager.

                 (f) Timely notice of each meeting, including the time, place, and agenda of each meeting, shall be
                 published in at least one local newspaper of general circulation within the vicinity of the Sanctuary
                 and in the Federal Register, and additional notice may be given by such other means as will result
                 in appropriate public notice to interested groups.

                 (g) The Council shall meet as frequently as necessary, not to exceed once per month, but at least
                 once every six months. The Council meeting place shall be chosen to accommodate anticipated
                 public attendance and to be reasonably accessible to those interested in attending.

                 (h) Minutes of each meeting shall be prepared by Sanctuary staff and retained by the Council
                 Secretary and contain a summary of attendees and matters discussed; such minutes shall be
                 available to the public.

                 W A yearly report shall be prepared by Sanctuary staff in cooperation with the Council Secretary,

                 Final Environmental impact Statement                                                          Page 357
                 and Management Plan

                     Appendix-1): Sanctuary Advisory Council Charter                        Hawaiian Islands Humpback Whale
                                                                                                   National Marine Sanctuary

                     sunimarizing issues addressed and actions taken. during the previous year.

                     8. Procedures for Providing Advice: The following procedures shall be used to provide advice:

                     (a) Requests for information, -assistance, or advice from the Sanctuaries and Reserves Division,
                     other NOAA offices, or other agencies shall be -made in writing and will be coordinated through,
                     and approved by, the Sanctuary Manager.

                     (b) The Council acts under the auspices of the Director of the Office of Ocean and Coastal
                     Resource Management. Any matters that the Council would like to raise independently must be
                     approved by the Sanctuary Manager prior to doing so.

                     (c) The Council shall provide advice directly to the Sanctuary Manager via a formal written
                     recommendation. Draft recommendations and verbal discussions will not be considered official
                     advice from the Council, but may be considered as background information.

                     (d) The Council may base their recommendations on a vote of the Council with negative votes and
                     abstentions noted, or on a general consensus reached during discussions, with minority opinions
                     and views noted.

                     (e) Any information or recommendations resulting from discussions in subconunittees or working
                     groups must be presented to and approved by the full Council prior to being submitted to the
                     Sanctuary Manager.

                                                      TERMS OF THE CHARTER

                     1 .     The Council shall operate pursuant to the terms of this Charter:

                     2.      This Charter shall remain in effect for a period of five years from the date of the Director's
                             signature.

                     3.      Six ronths prior to the expiration of this Charter, the need for the Council will be evaluated
                             by the Sanctuaries and Reserves Division to determine whether to renew the Charter.

                     4.      Revisions to the Charter may be made as determined necessary by the Sanctuaries and
                             Reserves Division.

                     Ori'ginal signed by J. Benoit on 215196

                     Jeffrey R. Benoit                                              Date
                     Director
                     Office of Ocean and Coastal Resource Management

                     Page @58                                                            Final Environmental Impact Statement
                                                                                                       and Management Plan

                  Hawaiian Islands Humpback Whale                        Appendix 15: Sanctuary Advisory Council Charter
                  National Marine Sanctuary

                       HAWAIIAN ISLANDS HUMPBACK VAiALE NATIONAL MARINE SANCTUARY
                                                ADVISORY COUNCIL CHARTER

                                                        AMENDMENT #1

                  The following revisions are made to the Charter as signed on February 5, 1996:

                  MEMBERS AND CHAIRS (page 3) is revised to read as follows:

                     The Council shall consist of no more than twenty-four (24) voting members and one (1)
                     non-voting member (the National Marine Fisheries Service) who shall be appointed by the,
                     Director, after consultation with the Office of the Governor, from among persons employed
                     by Federal, State, or county government agencies with expertise in management of natural
                     resources, members of the Western Pacific Fishery Management Council, representatives
                     of Native Hawaiian groups, local user groups, representatives from adjacent counties, -
                     conservation and other public interest organizations, scientific and educational
                     organizations, and members of the general public interested in the protection and multiple
                     use nianagement of Sanctuary resources. The membership is designed to'be balanced in.
                     terms of interests represented, geographic representation, and advisory functions the
                     Council will perform.
                  SELECTION PROCEDURES, (4) Removal from Council (page 6): the first paragrap'h is revised
                  to read as follows:

                     The Director may remove a non-governmental member of the Council if it is found that the
                     member has violated one -or more terms of this Charter. The Director may consult with the
                     Council prior to taking such an action. If a Council member. fails to attend three consecutive
                     meetings, he or she will be removed from the Council and the- seat opened for nominations for
                     a new representative. Until such time that the Final Environmental Impact Statement and
                     Management Plan (FEIS/MP) is approved by the Governor of Hawaii and the Secretary of
                     Commerce, the requirement to attend three consecutive meetings will be waived. However,
                     persons should contact the SAC Chair or the Sanctuary Manager at least 24 hours prior to the
                     scheduled meeting for which they are unable to attend.

                  OPERATION, 7. Meetin25 (page 10): paragraph (g) is revised to read as follows:

                     (g) Until such time that the FEIS/MP is approved by the Governor of Hawaii and the Secretary
                     of Commerce, the Council shall meet as frequently as deemed necessary by the Sanctuary
                     Manager and the Chair. After the approval of the FEIS/MP the Council shall meet as
                     frequently as necessary, not to exceed once per month, but at least once every six months. The
                     Council meeting place shall be chosen to accommodate anticipated public attendance and to be
                     reasonably accessible to those interested in attending.

                  Except as herein amended, modified, or changed, all other terms of the Charter will remain in full
                  force and effect.

                  Original signed by J. Benoit on 4111196

                  Jeffrey R. Benoit                                           Date
                  Director
                  Office of Ocean and Coastal Resource Management

                  Final Environmental impact Statement                                                      Page 359
                  and Management Plan

                      Appendix D: Sanctuary Advisory Council Charter                      Hawaiian Islands Humpback Whale
                                                                                                 National Marine Sanctuary

                                                  Hawaiian Islands Humpback Whale
                                                       National Marine Sanctuary
                                                    Advisory Council Membership

                      Mr. Allen Tom                                        Mr. Jim McCallum
                      N0AA-SRD Hawaii Liaison                              National Marine Fisheries Service
                      (non-voting)                                         (non-voting)

                      Itate and Federal Representatives:

                      Mr. Rick Egged                                       Mr. Francis Oishi
                      Director, Office of Planning                         Department of Land and Natural Resources

                      Dr. Craig McDonald                                   Ms. June Harrigan
                      Department of Business,                              Department of Health,
                      &onomic Development and Tourism                      Environmental Planning Office

                      Mr. Marc Hodges                                      Mr. Glenn Soma
                      Ka.hoolawe Island Reserve Commission                 Department of Transportation
                      Mr. William Lennan                                   Lt. Michael Neininger
                      U.S. Army Corps of Engineers                         14th Coast Guard District

                      Mr. Robert Schroeder
                      Western Pacific Regional Fisheries
                      Management Council

                      C41unty/Inte rest ReRresentatives:
                      Ms. Beth Goodoni                                     Ms. Maile Bay
                      Hawaii-County                                        Honolulu County

                      Mr. Claud Sutcliffe                                  Dr. Walter Haas
                      Maui County                                          Kauai County

                      Mr. James Coon                                       Ms. Hannah Bernard
                      Business / Commerce                                  Conservation

                      Ms. Donna Liddicoat                                  Mr. Herman Chong, Jr.
                      Education                                            Fishing

                      Ms. Thelma Kia-Shimaoka                              Mr. Skip Weinstein
                      Native Hawaiian                                      Ocean Recreation

                      Dr. Paul Nachtigall                                  Ms. Jan Pinney
                      Research                                             Tourism

                      Mr. Stan Butler                                      Dr. Louis Herman
                      Whale Watch                                          Citizen-at-large

                      Mr. Greg Kaufman
                      Citizen-at-large

                      Page 360                                                         Final Environmental Impact Statement
                                                                                                     and Management Plan

                   Hawaiian Islands Humpback Whale                                  Appendix E: MOU Between SRD and NMFS
                   National Marine Sanctuary                                                           Regarding Permit Review

                                                               Appendix E

                                    Agreements for Coordinated Management of the Hawaiian Islands
                                    Humpback Whale National Marine -Sanctuary
                                      Memorandum of Understanding Between ffie Sanctuaries and
                                      Reserves Division and the National Marine Fisheries Service
                                      Regarding Permit Review and Consultation       ................................  363

                                      Draft Memorandum of Understanding Between the Sanctuaries
                                      and Reserves Division and the State Departments of Health and
                                      Land and Natural Resources Regarding Permit Review (under
                                      development)   ........................... ........................................  367

                                      Memorandum of Understanding between NOAA, U.S. Coast
                                      Guard, and DLNR-DOCARE Regarding the Deputization for
                                      Enforcement    .................................................................1..373

                   Final Environmental Impact Statement                                                               Page 361
                   and Management Plan

                        Appendix E: MOU Between SRD and NMFS                                         Hawaiian Islands Humpback Whale
                        Regarding Permit Review                                                              National Marine Sanctuary

                                                    TMS PAGE INTENTIONALLY LEFr BLANK

                        Page 362                                                                 Fina'l Environmental impact Statement
                                                                                                                 and Management Plan

                   Hawaiian Islands Humpback Whale                            Appendix E: MOU Between SRD and NMFS
                   National Marine Sanctuary                                                   Regarding Permit Review

                                       MEMORANDUM OF UNDERSTANDING BETWEEN
                                         THE NATIONAL MARINE FISHERIES SER vicE
                                              AND THE NATIONAL OCEAN SERVICE
                    CONCERNING PERMITS AND CONSULTATION FOR Acnvims THATAFFECT THE
                         HA WAIIAN ISLANDS HumPBA cK WHALE NA TIONAL MARINE SANCTUAR Y

                   I     INTRODUCTION

                   The National Marine Fisheries Service (NUTS) and the National Ocean Service (NOS) have
                   significant roles in the protection and management of humpback whale's and their habitat in Hawaii.
                   The roles of NMFS and NOS in the processes of designation, implementation, and operation of
                   National Marine Sanctuaries are provided foi in the 1992 and 1993 Memoranda of Understanding
                   concerning the National Marine Sanctuary Program (1992 and 1993 MOUs) entered into by the
                   Assistant Administrators for NMFS and NOS. Inasmuch as NMFS has responsibility for
                   protection and -management of the humpback whale under the Marine Mammal Protection Act, of
                   1972 (MMPA), as amended, and the Endangered Species Act of 1973 (ESA), as amended, and the
                   Sanctuaries and Reserves Division (SRD), within the Office of Ocean and Coastal Resource
                   Management (OCRM), administers the Hawaiian Islands Humpback Whale National Marine
                   Sanctuary (HIHWNMS or Sanctuary) under the Hawaiian Islands National Marine Sanctuary Act
                   (HINMSA) and the National Marine Sanctuaries Act (NMSA), close cooperation and coordination
                   are essential in carrying out the respective functions and responsibilities of these two agencies.

                   Primary responsibility under these laws with respect to permits and consultations have been
                   delegated to or are carried out, by. the Office of Protected Resources (OPR) within NNTS and by
                   SRD within NOS;

                   In furtherance of the 1992 MOU, this Agreement sets forth specific procedures by which OPR and
                   SRD will co6perate and coordinate on the issuance of permits and other authorization, and with
                   respect to consultations under the ESA, MMPA, HINMSA, and NMSA, for activities in Hawaii
                   that may affect humpback whales or their Sanctuary habitat.

                   Pursuant to section 11 of this MOU, OPR will cooperate and,coordinate with SRD concerning the
                   issuance of permits and other authorizations under the ESA and MIMPA for activities in Hawaii that
                   may affect humpback whales or their Sanctuary habitat. OPR issues permits and authorizations
                   underthe ESA and MMPA for activities affecting the humpback whale (e.g., research). The
                   Sanctuary regulations do not contain provisions for the issuance of Sanctuary permits or other
                   authorizations at this time. SRD will cooperate and coordinate with OPR if permit regulations or
                   procedures for other authorizations are developed in the future.

                   Pursuant to section III of this MOU, OPR and SRD also will.cooperate and coordinate with respect
                   to consultations required under section 304(d) of the NMSA and section 7 of the ESA for Federal
                   activities that may affect humpback whales or their Sanctuary habitat.

                   11. PERMITS

                          A. "Application for permit" as used in this agreement includes an application for a pern-lit
                              or request for an authorization under the ESA or MMPA, including an application or
                              request for an initial permit or authorization, application or request for a permit or
                              authorization renewal, and an application or request for a significant permit or

                   Final, Environmental Impact Statement                                                      Page 363
                   and Management Plan

                   Appendix E: MOU Between SRD and'NMFS                                     Hawaiian Islands Humpback Whale
                   Regarding Permit Review                                                          National Marine Sanctuary

                                authorization modification. A significant permit or authorization modification would
                                alter the number, the species, or the type of takings that would be authorized and/br for
                                which publication of notice in the Federal Register would be required.

                           B.   Consistent with Section A. 4) of the 1992 MOU, SRD will do the following:

                                I .SRD will review applications for permits under the NIMPA and ESA and provide
                                   comments to OPR during the public comment period, including comments
                                   concerning proposed permit conditions and other recommendations;

                                2. In instances where issuance of an MMPA or ESA permit may be in conflict with
                                   NMSA or HIHWNMS requirements, regulations or policies issued or established
                                   under those Acts, SRD will provide early, informal notification to OPR so that
                                   recommendations, including recommendations for alternative methods, areas, or
                                   other options and for mitigation measures may be considered. If appropriate, OPR
                                   will communicate those recommendations to the permit applicant.

                           C. Consistent with Sections B. 4) of the 1992 MOU, OPR will do the following:

                                I .OPR will notify SRD when an application for a permit has been received for
                                   proposed activities that may affect humpback whales or their Sanctuary habitat in
                                   Hawaii;

                                2. OPR will provide SRD with a copy of each completed application for a permit for
                                   activities -that may affect humpback whales or their Sanctuary habitat; OPR will
                                   provide this copy to SRD at the same time or before any notice is filed with the
                                   Office of the Federal Register concerning the application for a permit;

                                3. OPR will issue, condition, or deny issuance of, as appropriate, permits or
                                   authorizations under the ESA or NINTA for activities that may affect humpback
                                   whales or their Sanctuary habitat in Hawaii in coordination with SRD comments,
                                   including comments concerning proposed conditions and other recommendations;

                                4. OPR will provide to SRD, as appropriate, written responses to comments,
                                   proposed conditions and other recommendations which were not incorporated or
                                   addressed in permits or authorizations issued under the ESA or NIMPA for activities
                                   that may affect humpback whales or their Sanctuary habitat in Hawaii-

                           D. Should HIR'WNMS regulations or procedures for the issuance of Sanctuary permits or
                                other authorizations be developed in the future, this MOU may be modified to include
                                procedures by which SRD will cooperate and coordinate with OPR in the review and
                                issuance of such permits and authorizations.

                   III. CONSULTATION

                           A.   Federal agencies are subject to the consultation requirements of section 7 of the ESA,
                                and implementing regulations at 50 C.F.R. Part 402, for Federal actions that may affect
                                humpback whales, and section 304(d) of the NMSA, HIHWNMS regulations at 15
                                C.F.R. � 945.8, . for 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.. Humpback whales and
                                their Sanctuary habitat are Sanctuary resources.

                   Page i454                                                            Final Environmental Impact Statement
                                                                                                       and Management Plan

                    Hawaiian Islands Humpback Whale                               Appendix E: MOU Between SRD and NMFS
                    National Marine Sanctuary                                                       Regarding Permit Review

                           B.   While recognizing that the consultation requirements of the two statutes differ, OPR
                                and SRD agree to cooperate and coordinate, to the maximum extent possible, with
                                respect to-the ESA and NMSA consultation procedures for activities pertaining to the
                                humpback whales and their Sanctuary habitat in Hawaii.

                                I . If an agency attempts to initiate consultation under   section 304(d) of the NMSA
                                    with respect to proposed dctivities that are likely to destroy, cause the loss of, or
                                    injure a humpback whale or its Sanctuary habitat in Hawaii, SRD will notify OPR
                                    and enc&urage the agency to initiate section 7 consultation on the proposed activity.
                                    SRD will also inform the agency that the NOAA point of contact for such
                                    consultations is the NWS Southwest Region, Pacific Area Office.

                                2.  When consultation under section 7 of the ESA is initiated for activities that may
                                    affect humpback whales or their Sanctuary habitat in Hawaii, OPR will notify SRD
                                    so that SRD may be kept apprised of proposed relevant Federal agency actions.
                                    OPR will coordinate with SRD to ensure any Sanctuary concerns are addressed
                                    during the section 7 consultation.

                                3.  If OPR or the relevant Federal agency determines that'the proposed-- action may
                                    adversely affect humpback whales (directly or indirectly), OPR will forward copies
                                    of all information on the proposed action to SRD for review and consultation under
                                    section 304(d) of the NMSA. OPR and SRD will coordinate and cooperate
                                    throughout the consultation process.

                                4.  Upon completion of coordinated consultation, NOAA will provide the action
                                    agency with a coordinated response which satisfies both ESA and NMSA
                                    requirements which will include any appropriate recommendation(s), mitigation
                                    measure(s) and a biological opinion.

                                5.  The NMFS Southwest Region, Pacific Area Office, will serve as the NOAA contact
                                    point for agencies undergoing section 304(d) consultation for activities that are
                                    likely to destroy, cause the loss of, or injure a humpback whale or its Sanctuary
                                    habitat in Hawaii.

                    IV. POINTS OF CONTACT

                    Within thirty (30) days from the effective date of this MOU, the Director of OPR and Chief of SRD
                    shall identify in writing the points of contact within their respective offices for coordinated pernuit
                    reviews and consultations consistent with this agreement.

                    V. PERIOD

                    This agreement will become effective on the date of the last signature of the approving official of
                    either party and will continue in force for ten years.

                    VI. MODIFICATION/CANCELLATION PROVISION
                    This MOU may be amended at any time by mutual written consent of the parties. This MOU will
                    bereviewed periodically, but not less than annually. It may be canceled by either party with 60
                    days written notice.

                    Final Environmental Impact Statement                                                           Page 365
                    and Management Plan

                     Appendix E: MOU Between SRD and NMFS                                        Hawaiian Islands Humpback Whale
                     Regarding Permit Review                                                             National Marine Sanctuary

                     VIL OTHER PROVISIONS

                     Nothing herein is intended to conflict with current SRD or OPR directives or with any Federal or
                     state laws, regulations, policies or directives. If the terms of this agreement am inconsistent with
                     exisidng SRD or OPR directives, then these portions of this agreement which are determined to be
                     inconsistent shall be invalid; but the remaining terms and conditions not affected by the
                     inconsistency shall remain in full force and effect.

                     At the first opportunity for review of the agreement, all necessary changes will be accomplished by
                     either an amendment to this agreement or by entering into a new agreement, whichever is deemed
                     expedient to the interest of both parties.

                     Should disagreement arise on the interpiptatign or implementation of the provisions of this
                     agreement, or amendments and/or revisions thereto, that cannot be resolved at the operating level,
                     the matter shall be forwarded to respective higher officials for appropriate resolution.

                     VIII. APPROVED

                     Original signed by R. Schmitten on 8128195

                     Rolland A. Schinitten                                      Date
                     Assistant Administrator for Fisheries

                     Original signed by W.S. Wilson on 7128195

                     W. Stanley Wilson                                          Date
                     Assistant Administrator for
                     Oce,ul Services and Coastal
                     Zone Management

                     Page 366                                                                Final Environmental Impact Statement
                                                                                                             and Management Plan

                   Hawaiian Islands Humpback Whale                        Appendix E: DRAFT MOU Between SRD, DOH,
                   National Marine Sanctuary                                          and DLNR Regarding Permit Review
                                                           Appendix E.
                                              MEMORAND         DRAFT
                                                             UM OF UNDERSTANDING
                                                           BETWEEN THE
                                NATIONAL. OCEANIC AND ATMOSPHERIC ADMINISTRATION
                                OFFICE OF OCEAN AND COASTAL RESOURCE MANAGEMENT
                                            SANCTUARIES AND RESERVES DIVISION
                                                              AND THE
                                                         STATE OF HAWAII
                                                  DEPARTMENT OF HEALTH AND
                                     DEPARTMENT OF LAND AND NATURAL RESOURCES

                   Note to reviewers: This MOU is a working draft and is subject tofurther revision based on review
                   by DLNR, DOH, and SRD.

                   This Memorandum of Understanding (MOU) is between the Sanctuaries and Reserves Division
                   (SRD), within the Office of Ocean and Coastal Resource Management (OCRM), National Oceanic
                   and Atmospheric Administration (NOAA), Department of Commerce (DOC), and the Department
                   of Health (DOH). and the Department of Land and Natural Resources (DLNR) both within the State
                   of Hawaii (the State), jointly referred to as "the parties".

                   I .    PURPOSE:

                          The purpose of this MOU is to coordinate the efforts of SRD and the State to meet their
                   common corrunitment to protecting and managing the endangered humpback whale (Megaptera
                   novaengliae) and its habitat within the Hawaiian Islands Humpback Whale National Marine
                   Sanctuary (HIHWNMS or        'Sanctuary). The MOU specifically establishes mutually agreeable
                   procedures for coordinated review of activities requiring permits from the State for proposed
                   activities that may impact humpback whales, or their Sanctuary habitat.

                   Ii.    BACKGROUND:

                          The Hawaiian Islands Humpback Whale National Marine Sanctuary was designated on
                   November 4, 1992, by the Hawaiian Islands National Marine Sanctuary Act. The Sanctuary
                   covers an area of approximately XXX square nautical miles from the highwater mark seaward to
                   the 100-fathorn depth contour around portions of the main Hawaiian Islands.

                          The National Marine Sanctuary Program, administered by the Office of Ocean and Coastal
                   and Resource Management's Sanctuaries and Reserves Division of the National Oceanic and
                   Atmospheric Administration, seeks to protect, manage, and conserve the ecological, recreational,
                   research, educational, historical, and aesthetic resources and qualities of coastal and marine areas
                   designated as national marine sanctuaries.

                          The Hawaii State Department of Health (DOH) administers Federal and State pollution
                   control laws in Hawaii in partnership with the U.S. Environmental Protection Agency (EPA) and
                   through the authority of State pollutidn control laws as compiled in the, Hawaii Revised Statutes,
                   Chapters 339-344, 128D and 128E, and as implemented through current Hawaii Administrative
                   Rules. Water pollution control permit programs authorized by the Federal Clean Water Act (CWA)

                   Final Environmental impact Statement                                                        Page 367
                   and Management Plan

                    Appendix E: DRAFI'MOU Between SRD, DOH,                               Hawaiian Islands Humpback Whale
                    and 13LNR Regarding Permit Review                                            National Marine Sanctuary

                    include the National Pollutant Discharge Elimination System (NPDES) Permit Program, fully
                    delegated to the State by the U.S. EPA, and *the CWA Section 401 Water Quality Certification
                    Program, conducted jointly with the EPA and the U.S. Army Corps of Engineers' CWA Section
                    404 Permit Program for dredging and filling operations and the Rivers and Harbors Act, Section
                    10 program. DOH's environmental management programs contain both regulatory and non-
                    regulatory components designed to limit discharge of pollutants to State waters from facilities
                    (regulated entities), and from diffuse land-based sources (pqlluted runoff control, regulatory and
                    non.-regulatory components).

                           The Hawaii' Department of Land and Natural Resources (DLNR) administers State
                    conservation district lands, including submerged lands and overlying waters, surface a            'nd
                    groundwaters, forestry, wildlife, and aquatic resources, park, historical, and recreational resources
                    and activities (boating, hiking, etc.). Conservation district lands include all lands seaward of the
                    shoreline to the limits of the State's jurisdiction and are governed by Hawaii Revised Statutes
                    (HRS) and Hawaii Administrative Rules (HAR) Chapter 13-5. Pursuant to HAR Chapter 13-5,
                    them are "Identified Land Uses" (which includes alteration of seabed activities) that may require
                    either no permit, a site plan approval, department permit, or a Board permit mith/without a.
                    management plan.

                           An application for either a Board or Department permit for use of Conservation District
                    Lands (Conservation District Use Application, or CDUA) would be required if there is a potential
                    "land use" as defined by HAR Chapter 13-5. These include such identified land uses such as data
                    collection, fishpond restoration, public purposes (e.g. outfalls, telecommunication cables),
                    sanctuaries, existing or accessory structures, erosion control, seawalls and shoreline protection,
                    artificial reefs, marine construction, mining, and extraction. DLNR also administers and - enforces
                    HRS, and HAR governing boating and ocean recreation in State waters.

                    III. REFERENCES AND AUTHORITIES:

                           NOAAJOCRM: The National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 et. seq.,
                    and the Hawaiian Islands National Marine Sanctuary Act, Subtitle C, Title H of the Oceans Act of
                    1992 (P.L. 102-587). The final regulations implementing the HIHWNMS are found at 15 CFR
                    Part 945. These regulations, inter alia, describe prohibited or otherwise regulated activities within
                    the Sanctuary.

                           DOH: State laws pertaining to discharges to State waters and seabed alterations include:
                    Hawaii Revised Statutes Chapter 342 D, Water Pollution, and Chapter 342E, Nonpoint Source
                    Pollution Management and Control; Hawaii Administrative Rules, Chapter 11-54, Water Quality
                    Standards, and Chapter 11-55, Water Pollution Control.

                           DLNR: State regulations pertaining to alteration of the seabed activities include: Hawaii
                    Revised Statutes, Chapterl7l Management and Disposition of Public Lands, Chapter 183C State
                    Conservation District, Chapter 190 Marine Life Conservation Program, Chapter 190D Ocean and
                    Submerged Lands Leasing, and various Hawaii Administrative Rules under Title 13, Department
                    of Land and Natural Resources.

                    Page369                                                            Final Environmental Impact Statement
                                                                                                     and Management Plan

                    Hawaiian Islands Humpback Whale                             Appendix E: DRAFT MOU Between SRD, DOH,
                    National Marine Sanctuary                                               and DLNR Regarding Permit Review
                    IV. GENERAL CONSIDERATIONS                            AND RESPONSIBILITIES OF THE
                    PARTIES:

                    a. The Parties recognize that NOAA and the State will cooperatively manage and protect the
                    North Pacific humpback whale stock and its habitat within State waters ofthe Sanctuary.

                    b. The Parties agree that a higher degree of resource -management and protection may be
                    necessary than currently exists for the humpback whale and its habitat.

                    c. The Parties      agree to cooperatively work together to review proposed permits, plans, and
                    projects in a manner that avoids delays in the issuance of permits or implementation of plans and
                    projects.

                    d. The Parties agree to work cooperatively            to conduct, coordinate, and integrate any        joint
                    research and monitoring projects, and permit application review oversight..

                    e. The Parties agree to work together to build non-duplicative databases and to allow the other
                    access to specific databases, as they pertain to humpback whales and their habitat, for the purposes
                    of resource management, research, and education.

                    f. ' The Parties agree to          defer emergency spill response and coordination to existing
                    arrangements between the State and the Federal government, such as the Oceania Regional
                    Response Team.

                    g.   The Parties agree to work together. to monitor permittee compliance with the terms and
                    conditions of State permits for activities also subject to Sanctuary regulations, and to coordinate the
                    .enforcement of violations of Sanctuary regulations and corresponding State regulations or permits,
                    consistent with a separate enforcement agreement that will be developed.by NOAA and the State.

                    V       SPECIFIC RESPONSIBILITIES OF THE PARTIES:

                    a.      SRD and the Hawaii Department of Health:

                    1.      SRD shall:

                            (i) provide comments to the Department of Health (DOH) within 30           days of reeeipt of the
                    application for any DOH discharge permit [individual National Pollutant Discharge Elimination
                    System (NPDES) or other, including general permits and Water Quality Certifications] based upon
                    potential impacts to Sanctuary resources and qualities, or impacts on compatible uses of the
                    Sanctuary, and impacts on NOAA's management of the Sanctuary; and
                            (ii) provide notice to DOH of, and allow for DOH?s comments and participation on,
                    Sanctuary water quality plans, coastal or marine resource management programs, or other similar
                    Sanctuary documents or projects affecting State waters within the Sanctuary.

                    2.      DOH shall:

                            (i) provide SRD with access to copies of current DOH discharge (NPDES or other) permits
                    for all existing discharges into the Sanctuary;
                            (ii) provide SRD with timely notifications of DOH discharge (NPDES or other) permit
                    applications, and upon request by SRD, a copy for comment within 15 business days from the date

                    Final Environmental Impact Statement                                                              -Page 369
                    and Management Plan

                    Ap- endix E: DRAFF MOU Between SRD, DOH,                               Hawaiian Islands Humpback Whale
                       P
                    and DLNR Regarding Permit Review                                               National Marine Sanctuary
                    applications are made for new permits, or 'to renew, amend, or extend an existing permit for the
                    following types of discharges -- (to befilled in after Sanctuary boundaries have been selected)

                            (iii) consider 0 reasonable recommendations regarding applications for DOH discharge
                    permits provided by the Sanctuary on a timely basis, and - notify SRD with reasons for any
                    recommendation rejected by DOH; and

                            (iv) provide notice to SRD and allow for SRD's comments and participation regarding
                    State water quality plans, coastal or marine resource management programs, or other similar State
                    documents or projects affecting the Sanctuary.

                    b. SRD and Hawaii Department of Land and                Natural Resources

                    1, SRD shall:

                            (i) provide comments to the Department of Land and Natural Resources (DLNR) within a
                    timeframe that reflects various application processing periods for any permit authorizing alteration
                    of seabed activities in the Sanctuary, based upon potential impacts to the humpback whale and its
                    habitat, impacts on compatible uses of the Sanctuary, or impacts on NOAA's management-of the
                    Sanctuary; and

                            (ii) provide notice to DLNR and allow for DLNR's comments and participation on
                    Sanctuary coastal or marine resource management programs, or other similar Sanctuary documents
                    or projects affecting the Sanctuary.

                    2. DLNR shall:

                            (i) provide SRD with the various State criteria for requiring -permit applications as they
                    pertain to alteration of the seabed activities;
                            (ii) allow SRD*access t8 permits on existing alteration of seabed activities in the Sanctuary,
                    such as current DLNR Conservation District Use Permits;

                            (ifi) notify SRD of applications made to DLNR for either new permits or proposed
                    amendments, renewals, or extensions to existing permits that propose alteration of seabed activity;

                            (iv) consider all reasonable recommendations regarding applications for DLNR alteration of
                    the seabed permits provided by the Sanctuary on a timely basis, and notify 'SRD with reasons for
                    any recommendation rejected by DLNR; and

                            (v) provide notice to SRD of, and allow for SRD's comments on changes to the State of
                    Hawaii's Administrative Rules as they pertain to humpback whales and their habitat, or other
                    similar State documents or projects affecting the Sanctuary.

                    Page 370                                                           Final Environmental Impact Statement
                                                                                                      and Management Plan

                    Hawaiian Islands Humpback Whale                          Appendix E: DRAFr MOU Between SRD, DOH,
                    National Marine Sanctuary                                            and DLNR Regarding Permit Review

                    V1. SUBSIDIARY AGREEMENTS:

                           Additional working agreements regarding specific cooperative efforts, if needed, shall be
                    effected in writing by both agencies as the need arises.

                    VIL AMENDMENTS AND REVIEW:

                           This agreement may be amended at any time by the written mutual consent of all the parties.
                    It may be subject to reconsideration at such other times as may be required and as agreed to by the
                    parties entering into this agreement.

                    VIII. OTHER PROVISIONS:

                           Nothing herein is intended to conflict with current NOAA or State directives or applicable
                    law. If the terms of this agreement are inconsistent with existing directives or with applicable law
                    of either of the parties entering into this agreement, then those portions of this agreement-.which are
                    determined to be inconsistent shall be invalid; but the remaining terms and conditions of this
                    agreement not affected by any inconsistency shall remain in full force and effect. At the first
                    opportunity for review of the agreement, such changes deemed necessary will be accomplished by
                    either an amendment to this agreement, or by entering into a new agreement, whichever is deemed
                    expedient to the interest of both parties.

                    IX. TERM OF THE AGREEMENT:

                           This agreement will become effective upon the signatures of the approving officials of the
                    respective parties entering into this agreement, and will remain in effect for five years unless
                    terminated by,(l) mutual agreement, or (2) 120 days advance written notice by either party.

                    Final Environmental impact Statement                                                           Page 371
                    and Management Plan

                      Appendix E: DRAFT MOU Between SRD, DOH,                                     Hawaiian Islands Humpback Whale
                      and DLNR Regarding Permit Review                                                    National Marine Sanctuary

                      .UNITED STATES DEPARTMENT OF COMMERCE
                      NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATTON
                      NATIONAL OCEAN SERVICE
                      OFFICE OF OCEAN AND COASTAL RESOURCE MANAGEMENT

                      BY:

                      TITLE:

                      DATE:

                      STATE OF HAWAII
                      DEPARTMENT OF HEALTH

                      BY:

                      TrILE:

                      DATE:

                      STATE OF HAWAII
                      DEPARTMENT OF LAND AND NATURAL RESOURCES'

                      BY:

                      TITLE:

                      DATE:

                      Page 372                                                                 Final'Environmental Impact Statement
                                                                                                              and Management Plan

                 Hawaiian Islands Humpback Whale Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard,
                 National Marine Sanctuary                    and DLNR-DOCARE Regarding Law Enforcement Services

                                                          Appendix E

                                             COOPERATIVE ENFORCEMENT AGREEMENT
                                                         between the

                                  UNITED STATES DEPARTMENT OF COMMERCE
                             NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

                                                   and

                             UNITED STATES DEPARTMENT OF TRANSPORTATION
                                       UNITED STATES COAST GUARD

                                                  and

                                             STATE OF HAWAII
                                 DEPARTMENT OF LAND AND NATURAL RESOURCES
                         DIVISION OF CONSERVATION AND RESOURCES ENFORCEMENT

                                                  for

                                   LAW ENFORCEMENT SERVICES UNDER THE

                            MAGNUSON FISHERY CONSERVATION AND MANAGEMENT ACT
                                             (16 U.S.C 1801 et seq.)

                                                     and

                                        ENDANGERED SPECIES ACT OF 1973
                                            (16 U.S.C. 1531 et seq.)

                                                      and

                                MARINE MAMMAL PROTECTION ACT OF 1972
                                         (16 U.S.C. 1361 et seq.)

                  Final Environmental Impact Statement                                                     Page 373
                  and Management Plan

                       Appendik E: Cooperative Agreement Between NMFS, U.S. Coast Guard Hawaiian Islands Humpback Whale
                       and DLNR-DOCARE Regarding Law Enforcement Services                           National Marine Sanctuary

                     This Agreement IS entered into by and between the Secretary of

                     Commerce, the. Commander, Fourteenth Coast Guard District for the
                     United States of America, and the State of'Rawaii, Department of

                     Land and Natural Resources, Division of Conservation and Resources,

                    Enforcement (hereinafter referred to as the State).

                    WITNESSETH:

                            Whereas, the        Magnuson Fishery Conservation and Management

                    Act (MFCMA), as amended, 16 U.S.C. 1801                                    establishes a

                   regime for managing certain               fisheries in the exclusive economic zone

                    (as established by Presidential Proclamation 5030, dated March 10,

                    1983) contiguous to the seaward boU*ndary of each coastal state; and

                           Whereas, the Endangered Species Act of 1973 (ESA),                            as

                   amended, 16 U.S.C. 1531 et =Z, and the Marine Mammal Protection

                   Act of 1972 (MMPA), as amended, 16 U.S.C. 1361 j.Lisq., provide for

                   the protection and conservation of endangercd and threat                           -ened species

                  and marine mammals; and

                      Page 374                                                           Final Environmental Impact Statement
                                                                                                        and Management Plan

                  Hawaiian Islands Humpback Whale Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard,
                  National Marine Sanctuary                    and DLNR-DOCARE Regarding Law Enforcement Services

                       Whereas, under 16 U.S.C. 1861(a) of the MFCMA, under 16

                U.S.C. 1540(e) of the ESA, under 16 U.S.C. 1377(b) of the MMPA, the

                Secretary of Commerce and Commander, Fourteenth Coast Guard

                District are specifically authorized to enter, into, among other things,

                agreements with State agencies to utilize such personnel, services,

                equipment and other facilities of such State agencies as may be

                necessary to carry out the enforcement responsibilities of the MFCMA,

                ESA, MMPA, and

                      Whereas, the State possesses law enforcement personnel, vessels,

                aircraft, vehicles, and other equipment and capabilities presently

                engaged in enforcing State conservation laws that could be utilized in

                assisting the Secretaries in carrying out the law enforcement

                responsibilities mandated by the Acts listed in this Agreement;

                NOW THEREFORE, it is mutually agreed:

                I.    DEPUTIZATION OF STATE OFFICERS AS FEDERAL

                      ENFORCEMENT AGENTS

                                                              2

                 Final Environmental Impact Statement                                                     Page 375
                 and Management Plan

                      Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard Hawaiian Islands Humpback Whale
                      and DLNR-DOCARE Regarding Law Enforcement Services                            National Marine Sanctuary

                            A. Those law enforcement officers of the State of Hawaii,

                    De- artment of Land and Natural Resources, Division of Conservation

                    and Resources B.aforcoment (hereinafter referred to as Officers) are

                    hereby are deputized as Federal law enforcement agents and

                   authorized to enforce the MFCMA, BSA, MMPA and regulations

                   promulgated thereunder. Enforcement shall be compliance with

                   directives established by the Secretary of'Commerce and Commander,

                   Fourteenth Coast Guard District, and their designees.

                           B. All- Officers, while acting as federal law enforcement agents

                   under this Agreement, shall possess the powers                       and authorities set

                  forth in the MFCMA, ESA and MMPA but shall                            not be held or

                  considered as employees of the United States for the purposes                               of any

                  laws administered by the United States Office of Personnel

                  Management. Such Officers, while acting as federal law enforcement

                  agents, shall not be compensated, salaried or otherwise reim b u r3ed by

                  the United States for any services performed or expenses incurred in

                 theperformance of such duties except as provided by this Agreement.

                                                                    3

                      Page 376                                                          Final Environmental Impact Statement
                                                                                                        and Management Plan

                 Hawaiian Islands Humpback Whale Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard,
                 National Marine Sanctuary                    and DLNR-DOCARE Regarding Law Eniorcement Services

                       C. Such Officers may be covered under 5 U.S.C. $191-819                         3, Law

                Enforcement Officers not Employed by.the United States, for injuries

                sustained while enforcing Federal laws, provided the injuries occurred

                under one of the circumstances enumerated in Section 8191. The

               Secretary of Labor will provide compensation for covered injuries as

               enumerated in Section 8192. This coverage Is Intended to supplement
               rathe-r   than r  .eplace 'any state or local benefits otfierwise payable.

                       D. All Officers, while ac*ting as Federal law enforcement                      agents,

               shall be considered to be (1) investigative or law enforcement officers

               of the United State; for purposes of the tort claims provisions of

               Chapter 171 of Title 29 of the United States Code,, and (2) officers or

              employees of the Department of Commerce within the meaning of

              Sections     111 and 1114 of Title 18 of the United States Code.

                      E. Officers shall not have the authority to carry out any

              functions or responsibilities of the United States Government except

              as provided in this Agreement.

                                                             4

                Final Environmental Impact Statement                                                      Page 377
                and Management Plan

                     Appendii E: Cooperative Agreement Betwe en NMFS, U.S. Coast Guard Hawaiian Islands Humpback Whale
                     and I)LNR-DOCARE Regarding Law Enforcement Services                       National Marine Sanctuary

                            F. Those Officers who for any reason leave                   or are removed from

                    service as members of the Division of Conservation and Resources

                    Enforcement will be simultaneously divested-of authority conferred

                    herein.

                           0. All Officers exercising authority under this Agreement shall
                    sut)mit written documen'tafion o           -i*a`n'y-a c-t*io*n-       urs'ua-nt- to this

                   Agreement to the. National Marine Fisheries Service Special Agent in

                   Charge (SAC) for the Southwest Area, or the SAC's designee. Such

                   documents shall include, but not be limited to, case investigation

                   reports,, a copy of any written warning or documentation of violation,

                   and. any supporting exhibits, affidavits, photographs or other evi.d                       ence

                   gathered. In addition, the State shall immediately notify the Special

                  Agent in Charge or his/her designated representative of any arrest

                  made as a result of any action brought under the Acts listed in this

                  Agreement, and shall prepare and submit individual case investigation

                  reports to the Special Agent in Charge on a timely basis. The National

                  Marine Fisheries Service- will be responsible for providing information

                    Page 379                                                        Final Environmental Impact Statement
                                                                                                  and Management Plan

                Hawaiian Islands Humpback Whale Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard,
                National Marine Sanctuary                    and DLNR-DOCARE Regarding Law Enforcement Services

               to the U.S. Coast Guard On the status of cases made under this

               Agreement.

                       H. Any proper       ty, including cargo, fishing gear, vessels, fish or.

               the fair market value thereof, seized under the authorities of the ACtS

               listed In this Agreement shall be delivered to the United States

               Government Official designated by the SAC or other appropriate

               federal authority. If such official, however,               cannot be contacted,

               employees of the. State will be expected to make reasonable

               arrangements for the temporary care, handling, and preservation of

               seized property. Costs to third parties with whom arrangements are

               made under this paragraph shall be Considered as separate items for

               payment by the Secretary of Commerce and will not be the

               responsibility of the State.

                     I. Officers will be made available, upon request by the

               appropriate Federal authority, to appear as witnesses in connection

               with any action brought with which they have an involvemen.t. It is the

               responsibility of the National Marine Fisheries Service to reimburse

                 Final Environmental Impact Statement                                                      Page 379
                 and Management Plan

                     Appendix  E:, Cooperative Agreement Between NMFS, U.S. Coast Guard Hawaiian Islands Humpback Whale
                     and DLNR-DOCARE Regarding Law Enforcement Services                            National Marine Sanctuary

                      the Officers who appear in cases related to this Agreement for travel

                     expenses and per them (at the federal, sfandard rate) for travel

                     inc,urred when appearing as a witness,

                             1. The State shall provide access to its law enforcement

                     telecommunications network to the National Marine Fisheries Service

                     and the U.S. Coast Guard. Costs incurred in acquiring aCC03S to and

                     using the State communications system shall be borne by the National

                    Marine Fisheries Service.

                    Ii.     POMRS. QE AUJHOR                          OFFICERS JZNDER IIII.I.C.,

                            1161 (b)

                            A. In accordance with 16 U.S.C. 1961(b), Officers are hereby

                    delegated the authority described in that section while performing

                    duties-in accordance with this Agreement.

                           B. No unilateral law enforcement action by the State with

                   respect to foreign or stateless vessels is authorized by this Agreement.

                                                                      7

                     Page 380                                                           Final Environmental Impact Statement
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                  Hawaiiati Islands Humpback Whale Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard,
                  National Marine Sanctuary                    and DLNR-DOCARE Regarding Law Enforcement Services

                If, however, foreign vessels are encountered, the State will

                immediately contact the Fourteenth                 Coast Guard District and await

                instructions before. boarding, seizing              any vessel, or making an arrest,

                        C. Any arrest or seizure of domestic Vessels contemplated by the

                State shall be reported as soon as possible to the Special Agent in

                Charge or his/her'designee, who, subject to the availability of

                appropriate personnel, will dispatch NMFS Special Agents to assist the

                Officers, or assist via radio or telephone communications when units
                                                          4
                are not available. National Marine Fisheries Service Agents and Coast

                Guard Boarding Off1c         ers have the authority to mike arrests. and

                seizures aboard a domestic vessel, and this authority is hereby

                delegated to Officers. The National Marine Fisheries Service and the

                United States Coast Guard will advise each o-ther concerning arrests

                and seizures made under this Agreement.

                III. ]VNTTED ETATES !CQAST GUAI&D ASSISTANCE TO THE S-TAJE

                                                               8

                  Final Environmental Impact Statement                                                      Page 381
                  and Management Plan

                      Appendix E: Cooperative'Agreement Between NMFS, U.S. Coast Guard Hawaiian Islands Humpback Whale
                      and DLNR-DOCARE,Regarding Law Enforcement Services                       National Marine Sanctuary

                             A. Pursuant to 14 U.S.C. 141, the United States Coast Guard

                     may, operational considerations permitting, provide assistance to the

                     parties, for the purpose of this agreement.
                     0-

                            B.      Officers may, opera        tions and space permitting, accompan.y

                     any United States Coast Guard vessel or aircraft on law enforcement

                     patrols to aid. in enforcement of the Acts listed in this Agreement.

                            C. If violat!    ons of State fisheries laws and regulations by fishing

                    vessels registered under the laws of the State are detected by United

                    States Coast Guard law enforcement patrols, the United Sta-tes Coast
                    Guard wil     I notify -the State and may provide -back-up assistance

                    consistent with the term$ Of this Agreement.

                           D. Subject to approval by the United States Coast Guard,

                   personnel will be made available to appear as witnesses in connection

                   with any criminal or JiLLMcourt proceedings resulting from any

                   fishery enforcement 'action brought under State laws and regulations

                   with which they have involvement.

                                                                   9

                     Page 382                                                       Final Environmental Impact Statement
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                  Hawaiiark Islands Humpback Whale Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard,
                  National Marine Sanctuary                    and DLNR-DOCARE Regarding Law Enforcement Services

                 IV. h[A-119NAL BURT]J&FISHE                  I111ES- SKRVICE ASSTSTANCE MTHR

                 STATIE

                         A. TRAINING

                          The National Marine Fisheries Service will provide training for,

                 the Officers in the enforcement of the Acts listed in this Agreement

                 with the length of training and location to be agreed upon by the State.

                 Training expenses, except travel, will be borne by the National. Marine

                Fisheries Service.

                        D. PROPER        TY LOAN

                         The National Marine Fisheries Service will loan the State

                purchased or excess (including. seized) vehicles, vessels, and other

                operational equipment based upon the availability of said equipment.

                All property transferred hereunder will be on the basis of an executed

                Property Loan Agreement and Receipt form.                     Costs incurred for the@

                transportation, care, handling and preservation of said property

               transferred under this par          agraph shall be considered as separate Items

               for payment and will be the responsibility of the. State. If for any

                                                               10

                  Final Environmental impact Statement                                                      Page 383
                  and Management Plan

                       Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard Hawaiian Islands Humpback Whale
                       and DLNR-DOCARE Regarding Law Enforcement Services -                     National Marine Sanctuary

                         reason the property on loan is lost, destroyed, or stolen. by

                         circumstances beyond the control of the State, the State will not be

                         hold responsible for- reimbursement of the cost of said property.

                         V. COMMITMENT Im. ML STAT&

                               The State and the Secretary of Commerce, in-managing the

                        fisheries in their respective jurisdictions, agree to adopt conservation,

                        management and enforcement measures and regulations which are

                        complementary, in accordance with, and to the extent authorized by the

                        Act and Hawaii statutes.

                        Vi. COND1JWALA=TFXMA QLAGREEMENT

                              A. This Agreement shall be effective as of the date it is signed

                       'by-all Parties and shall remain in effect until terminated by any Party,

                       ,giving the other Parties written notice, in which event it shall

                       terminate on the day Immediately following the thirtieth day of such

                      Page 384
                                                                                     Final Environmental Impact Statement
                                                                                                   and Management Plan

                  Hawaiian Islands Humpback Whale Appen  dix E: Cooperative Agreement Between NMFS, U.S. Coast Guard,
                  National Marine Sanctuary                    and DLNR-DOCARE Regarding Law Enforcement Services

                notice. This Agreement may be amended with th                      e mutual consent of

                the parties In writing.

                       B.. In no event shall this Agreement be interpreted to conflict

                with specific operating policies and procedures promulgated by any of

                the Parties without the express oral or written consent of an

                appropriate official of all of the Parties.

                       C. -This Agreement shall be construed to be consistent with the

                MFCMA, ESA, MMPA and regulations promulgated, thereunder.

                      D. Nothing herein is intended to conflict with current National

                Oceanic and Atmospheric Administration, United States Coast Guard,

                or State directives. If the terms of this Agreement are inconsistent

                with existing directives of the agencies entering into this Agreement,

                those portions of this Agreement that are determined to be

                inconsistent shall be invalid, but the remaining terms and conditions

                shall remain ic full force and effect.

                                                              12

                Final Environmental Impact statement
                and Management Plan                                                                      Page 385

                        Appendix E: Cooperative Agreement Between NMFS, U.S. Coast Guard Hawaiian Islands Humpback Whale
                        and DLNR-DOCARE Regarding Law Enforcement Services                    National Marine Sanctuary
                                    UNITED STATES DEPARTMENT OF COMMERCE
                                      NATIONAL MARINE FISHERIES SERVICE
                                                OFFICE OF ENFORCEMENT

                        BY:        Morris M. Pallozzi

                        TITLE:     DIRECTOR, OFFICE OF ENFORCEMENT

                        DATE:      AUGUST 27, 1992

                      UNITED STATES DEPARTMENT OF TRANSPORTATION
                                      COMMANDANT
                                UNITED STATES COAST GUARD

                        BY:        James H. Donahue

                        TITLE:     Acting District Commander

                        DATE:      September 18, 1992

                                        STATE OF HAWAII
                           DEPARTMENT OF LAND AND NATURAL RESOURCES
                  DIVISION OF CONSERVATION AND RESOUCES ENFORCEMENT

                      BY:

                      TITLE:     Chairperson, Department of Land and Natural Resources

                      DATE:      August 11, 1992

                                                                13

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                    Hawaiian Islands Humpback Whale                                            Appendix F: Military Activities in Hawaii
                    National Marine Sanctuary

                                                                      Appendix F

                                                  LIST OF MILJTARYAcTrvmEs iN HA wAii

                    This compilation of classes of military activities conducted in Hawaiian waters has been divided into "near-shore" and
                    .4open ocean" categories. Near-shore operations are those which are. conducted within the 100-fathom isobath
                    proposed for inclusion in the sanctuary. Open ocean operations are those additional types of operations which are
                    normally (but not always) conducted outside the 100-fathom isobath. These operations have been included because
                    they are at times conducted near or inside the 100-fathorn isobath. Theses classes of military activities near Hawaii
                    are conducted by all the military services of the United States and, during combined operations, by military units
                    from cooperating foreign nations or the State of Hawaii Department of Defense/National Guard.

                    I.                  IERATIONS

                         A. Near shore g=ojiQns include, but are not limited to:

                              I . Pierside training and maintenance.
                              2.  Dry-docking operations at Pearl Harbor.
                              3.  Harbor movements by ships, submarines, boats and auxiliary craft.
                              4.  Anchoring
                              5.  Transit operations between harbors and operating areas (OPAREAS).
                              6.  Salvage and towing operations.
                              7.  Anti-submarine warfare (ASW) operations involving the use of sonar and expendable
                                  bathythermographs. Recoverable torpedoes are sometime used.
                              8.  Amphibious warfare operations including the blasting of amphibious ships'and the movement to the
                                  beach of landing craft, landing craft air cushion (LCAC), amphibious assault vehicles (AAV), ship's
                                  boats, special United States Marine Corps (USMC) "Boston Whaler" or '?Aiac" type special
                                  operations craft, and helicopters. Can involve the landings and take off of Harrier jets from a variety of
                                  amphibious ships.
                              9.  Anti-surface warfare operations against ships and small boats
                              10. Special operations training involving swimmers and small boats
                              11. Explosive Ordnance Disposal (EOD) operations and training involving the use of explosives for
                                  demolition.
                              12. Mine warfare and mine counter-measure (MCM) operations involving the use of sonar, towed mine
                                  sweeping devices, the implantation of drill moored. and bottom mines, and the firing of machine guns
                                  and small arms at floating targets.
                              13. Equipment and personnel drops from fixed wing and helicopter aircraft associated with re-supply,
                                  insertion, search and rescue and training.

                         B.   Opsn ocean operations nclude, but are not limited to:

                              I.  Transit operations between OPAREAs
                              2.  Engineering, navigation, seamanship, and general warfare-related training exercises.
                              3.  Towing operations.
                              4.  Anti-submarine warfare operations involving the us6 of sonar, expendable bathythermographs , towed
                                  arrays and training torpedoes.
                              ,5. Amphibious warfare operations involving the blasting of ships over the horizon launch, recovery, and
                                  movements of LCAC and USMC/Seal special operations craft and low-flying helicopter and Harrier jet
                                  operations.
                              6.  Anti-surface warfare operations involving high-speed maneuvering, the actual firing of guns and
                                  missiles at targets, calibration firing of guns and the launching of self-protective chaff.

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                        Appendix F: Military Activities in Hawaii                                           Hawaiian Islands Humpback Whale
                                                                                                                    National Marine Sanctuary

                                  7.  Anti-air warfare operations involving the actual. firing of guns and missiles at target craft and the
                                      launching of self -protective chaff and flares.
                                  8.  Replenishment operations to vessels underway involving the transfer -of both supplies and fuel via wire
                                      and transfer of supplies by low-flying helicopters.
                                  9.  Supersonic flight above 5,000 feet and outside 25 miles from land.

                        11. SUBSURFACE OPERATIONS

                             A.   Near-shore opgrations including, but are not limited to:

                                  I . Transit operations to and from ports'and OPAREAs.
                                  2.  Post maintenance shallow water divers.
                                  3.1 Shallow water ASW and anti-ship operations, which include the expenditure of non-recoverable
                                      sonobuoys and smoke markers.
                                  4.  Torpedo exercises using retrievable non-explosive torpedoes.
                                  5.  Mine warfare training during which submarines traverse through a field of bottom-moored practice
                                      mines, using active sonar to detect and avoid mines.
                                  6.  ASW target services for ships and aircraft, which include the expenditure of non-recoverable sonobuoys
                                      and smoke markers an   'd use of sonar and towed arrays.
                                  7.  Special operations involving swimmers operating from submerged submarines and supported by small
                                      boats.
                                  8.  Mine warfare training which includes the launching of recoverable exercise (inert) mines.

                             B.   01&n ocean opgrations including, but not limited to:

                                  I . Transit operations at a variety of depths
                                  2.  Deep water dives and surfacing
                                  3.  Deep water ASW and anti-submarine/ship warfare operations involving the use of sonar, expendable
                                      bathythermographs, towed arrays, and training torpedoes.

                        M. AIR OPERATIONS

                             A.   Near-shore operations including, but not limited to:

                                  I . Landing and takeoffs by helicopters, fixed-wing aircraft and target drones from shore bases
                                  2.  Landings, takeoff and training flights at altitudes above 50 feet by helicopter's from ships.
                                  3.  Training flights and transfers of personnel and equipment by helicopters and fixed-wing aircraft at
                                      altitudes above 50 feet. Low flying tactical helicopter and fixed-wing aircraft training flights (single
                                      and multi-ship, day, night unaided and Night Vision Goggle (NVG) training) often involve terrain-
                                      following and Nap. Of the Earth (NOE) flight over or near the island and shorelines, as well as, flight in
                                      published FAA transitions below controlled airspace and flight traffic patters over water.
                                  4.  Air assaults by helicopters from amphibious ships at altitudes above 50 feet.
                                  5.  ASW operations from patrol (P-3) aircraft and helicopters, against actual submarines or mobile target at
                                      altitudes from 50 to 16,000 feet. Inert mines and missiles, non-retrievable sonobuoys and smoke
                                      markers and retrievable torpedoes are discharged into the water, Helicopters may use dipping sonar.
                                  6.  Bombing and missile firing exercises by fixed-wing aircraft of attack helicopters using surface target or
                                      Kaula rock.
                                  7.  Insertion/extraction of special forces/USMC Force Reconnaissance (RECON) troops from helicopters
                                      and fixed-wing aircraft into the water.

                             B.   Olmn ocean o2grations includi=

                                  I - Aircraft carrier air operations.

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                    Hawaiian Islands Humpback Whale                                            Appendix F: Military Activities in Hawaii
                    National Marine Sanctuary

                              2.  Air combat maneuvering.
                              3.  Live missile firings by aircraft versus target drones.
                              4.  Live bombing, gunnery, and missile firings versus surface targets.
                              5.  Low flying tactical helicopter and fixed-wing aircraft flights (single and multi-ship day, night unaided
                                  and NVG) transiting between island training areas at altitudes between 200 and 500 feet.
                              6.  Emergency fuel dumping above 5,000 feet.
                              7:  Air to air warfare operations involving the actual firing of guns and missiles at target craft and the
                                  launching of self-protective chaff and flares.,
                              8.  Supersonic flight above 5,000 feet and outside 25 miles of land.

                                                            OPERATIONS BY LOCATION

                    1. AREAS WITHIN ORIGINAL SANCTUARX BOUNDARIES:

                        A. PENGUIN BANK. Located southeast of Oahu, and southwest of Molokai, in the Kaiwi Channel. This is
                              the areas of primary concern within,the original sanctuary boundaries. Submarines conduct post-overhaul
                              shallow- water dives in the vicinity of Penguin Bank. The area is also used for shallow-water ASW
                              operations.

                              I . All Submarines completing any major repair work are required to conduct initial submerged testing in
                                  shallow water. The loss of USS THRESHER on sea trials generated the requirement to conduct initial
                                  submerged testing in shallow water to ensure that if the submarine has a casualty during the testing,
                                  and sinks to the ocean floor, the crew can be rescued. It is necessary to conduct initial testing close to
                                  shipyards facilities in case an unscheduled return to port is required for repairs. Penguin Bank is the
                                  only shallow water areas in Hawaiian wateE suitable for these mquired test.

                              2.  Shallow-water ASW exercises involving surface ships and submarine, using low power active sonar
                                  transmissions, are conducted in the area to take advantage of the unique characteristics of shallow water.
                                  These exercise last from two to five days and result in the use of sonobuoys, smoke - floats, expendable
                                  bathythermographs, and submarine-launched exercise (inert)' torpedoes.         This training cannot be
                                  conducted in deep water.

                              3.  Submarines conduct mine warfare training at Penguin Bank. These exercises inv'olve the submarines
                                  and small craft. The submarines practice implanting inert mine shapes, which are later recovered by
                                  small craft. This training cannot be conducted in deep water.

                         B.   K;kHOOLAWF. Operational training no longer conducted on Kaho'olawe. Helicopter operations occur
                              regularly to and from the Navy bases camp for logistic purposes in support of the impending unexplored
                              ordnance clean up. In addition helicopter flights will occur throughout the island for required aeromedical
                              evacuation purposes. Landing craft are occasionally used to introduce or remove. supplies and heavy
                              equipment. Construction a pier is planned. The waters surrounding the island are not suitable for use by
                              the public due to the presence of undetermined amounts of unexplored ordnance.

                         C    MAUI. MOLOKAI AND LANAI, With increased emphasis on littoral warfare, and the need to conduct
                              training in shallow water, the waters adjacent to Maui, Molokai, and Lanai are important training areas for
                              Navy ship home ported in Pearl Harbor. The channel between, Maui, Lanai and Molokai is extensively
                              used for the biennial RIM PAC exercise as an EOD/MCM exercise area as well as for shallow-water ASW.
                              Port visits are frequently conducted in Lahaina, Maui. Salvage ship and diving operations are frequently
                              conducted.

                              1. The areas inside the 100 fathom isobath surrounding Maui, Molokai, and Lanai, and specifically the
                                  channel between this island, is used for shallow water ASW operations. These operations include

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                        Appendix F: Military Activities in Hawaii                                         Hawaiian Islands Humpback Whale
                                                                                                                   National Marine Sanctuary

                                      using low-power active sonar transmissions, sonobuoys, smoke floats,    expendable bathythermographs,
                                      and exercise, (inert) torpedoes.

                                 2.   This channel is also used for MCM training, including the use of        bottom-moored practice (inert)
                                      mines, sonar, towed mine sweeping device and MCM surface ships..

                                 3.   The recent installation of the Hawaiian'Area Tracking Sy6teni. (HATS) southeast of Lanai provides an
                                      excellent passive acoustic range for shallow water exercise torpedo firings.           Exercise torpedo
                                      firings(non-explosive) are conducted with HATS range control utilizing a helicopter for range safety.

                                 4.   The waters surrounding Molokai are used by the Marines and the U.S. Army: USMC day/night
                                      helicopter operations focus predominantly in the area around Molokai, which is their only effective
                                      local night vision goggle (NVG) training area. These flights take place at altitudes above 50 feet. The
                                      U.S. Army also uses the Molokai training area (day, night unaided and NVG), and conducts flights in
                                      and around the shorelines of Maui and Molokai for low level training and for transit routes between
                                      Oahu and the major Army tactical training area on the island of Hawaii, Pohakuloa Training Area.

                            D. KAUAI, Few operations occur in the small area north'of Kauai originally included in the sanctuary. Air
                                 operations sometime occur over this area, and transit operations sometime occur through it.

                        11. ADDITIONAL AREAS PROPOSED FOR INCLUSION:

                            A.   KAUAI. A significant concern over the proposed inclusion of the remaining waters inside the 100- fathom
                                 isobaoth surrounding Kauai is the potential impact upon operations at the PMRF, located on- Kauai.
                                 Operations below are subdivided by those occurring inside the 100-fathom isobath area proposed for
                                 inclusion, and those normally occurring outside it.

                                 1. Operations inside the proposed sanctuary boundaries.

                                      a.  Airspace 'Me airspace above the 100-fathom isobath is frequently used. by P-3 aircraft operating
                                          against actual submarines or mobile targets. Operations take place from 50 to 16,000 feet. Inert
                                          nunes and missiles are discharged into the water. Other exercise material discharged includes non-
                                          retrievable smoke markers and sonbuoys, and retrievable torpedoes.            Occasionally, due. to
                                          equipment malfunction, retrievable torpedoes are lost at sea. Target drones are launched from
                                          PMRF through coastal airspace, Helicopter operations are conducted frequently in the near-shore
                                          area.

                                      b.  Surface, Amphibious exercises, involving landing craft, LCAC, and AMTRACs, are regularly
                                          conducted on the beaches at PMRF. Target recovery boasts pass through proposed sanctuary
                                          waters enroute to and from pick-ups. Missile and gun life fningexercises using air, subsurface and
                                          surface targets occur in area R-3 101, a fully instrumented range which extends three nautical miles
                                          seaward from the western cost of Kauai, a portion of which is inside the 100-fathom isoboath.
                                          Area R-31.01 also serves as an aerial target recovery area.

                                      c.  Subsurface. In addition to operations with P-3 aircraft, submarines conduct torpedo exercises using
                                          retrievable torpedoes, and mine warfare training. Submarine traverse through a field of bottom-
                                          moored mines, using active sonar to detect and avoid mines. During the course of these exercises,
                                          submarines discharge non-retrievable bathytheftnographs.

                                 2. Operations adjacent to proposed sanctuary boundaries.

                                      a. Airspace:

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                    National Marine Sanctuary

                                       (1) Warning Area W- 186 Special use airspace over open ocean located westward to northeastward
                                           of Kauai, and commencing at the border of R-3101, three nautical miles west of Barking
                                           Sands. Airspace extends from the surface to 9000 feet. W- 186 is used for live missile, bomb,
                                           rocket, gunnery and torpedo exercises.

                                       (2) Warnifig Area W- 188. Special use airspace over open ocean located westward to northeastward
                                           of Kauai, and commencing at the border of R-3101, three nautical miles west of Barking
                                           Sands. The airspace extends from the surface to unlimited altitude and encompasses an
                                           operating area of approximately 42,000 square miles. W-188 is used for missile, rocket,
                                           gunnery, and torpedo exercises in support of fleet training and PMRF activities. The M-2, M-
                                           3, and M-4 portions of W- 188 are a fully instrumented missile firing range with command and
                                           control, surveillance, tracking and telemetry services and data reduction services provided by
                                           and located at PMRF.

                                  b.   Surface: The surface of areas W-186 and W-188 encompass 41,000 square nautical miles, and are
                                       subdivided into eight operating areas for surface ships. Air, surface and underwater exercises using
                                       conventional ordnance of all types are conducted.

                                  c.   Subsurface:

                                       (1) Barking Sands Tactical Underwater Range (BARSTUR):              This range provides 80 square
                                           nautical miles of underwater tracking coverage in M2 of W- 188, commencing seven nautical
                                           miles west of Kauai. The rage extends from the ocean floor to the surface. BARSTUR is
                                           used to evaluate ASW and anti-surface (ASU) warfare exercises and tactics and to track torpedo
                                           fuings and submarines. The underwater and shore-based instrumentation at BARSTUR
                                           provides the capability to conduct ASW and ASU warfare training in an instrumented
                                           environment, which permits evaluation of the effectiveness of the. tactics employed and the
                                           performance of weapons systems.

                                       (2) Barking Sands Underwater Rangcs Expansion (BSURE): This range *is adjacent to BARSTUR
                                           and underlies M-4 in W- 188. The range expands the underwater tracking area to approximately
                                           800 square nautical miles, and extends from the ocean floor to the surface, BSURE is used to
                                           evaluate ASW and ASU exercises and to track torpedo firing and submarines.

                         B. OAHU

                              1. OUcrations in5ide=Msedsanctu= bound-

                                  a.   Airfields gcnerally. Low level day/night helicopter operations are conducted in accordance with
                                       published Federal Aviation Administration (FAA) routes/procedures and Honolulu approach control
                                       instructions for the various controlled and uncontrolled military and civilian airfields an the island
                                       of Oahu and the outer islands. FAA transition routing and/or training requires flight in and around
                                       the shorelines of Oahu at or below 500 feet.

                                  b.   Pearl Harbor, Operations within and near Pearl Harbor are primarily limited to transit operations,
                                       anchorages, ammunition on/off loads, maintenance, dry-docking, and pierside training,

                                  c.   Bellows Air Force Station, USMC and Navy special forces frequently use beaches at Bellow and
                                       adjacent water for amphibious operations. These exercises involve landing craft, LCAC" ""V,
                                       submarines with associated swimmer delivery vehicles and support craft, and small boat landings,
                                       as well as low level overflights by helicopters. The AMTRACs transit Kailua and Waimanalo
                                       Bays enroute to Bellows.

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                         Appendix F:    Military Activities in Hawaii                                     Hawaiian Islands Humpback Whale
                                                                                                                   National Marine Sanctuary

                                        d. NAS Barbers-Point. P-3 and other aircraft frequently overfly coastal water at low level oq
                                           approach and takeoff. Helicopters and fixed wing aircraft overfly coastal waters at low level on
                                           approach and takeoff and during helicopter closed traffic operations south of the main runway.

                                        e. -Kaneohe Bay, Helicopters and fixed wing aircraft overfly coastal waters at low level on approach
                                           and take off. Small boats operate in the harbor.

                                        f. Cam2 Smith Training Facili!L Located in Ewa, just east of NAS Barbers point. Company-sized
                                           small boat r;iid exercises are conducted semiannually. These operations involve over the horizon
                                           launchings of small boats, which transit to and land on the beach.

                                        g. Waianae Coast

                                           (1) FORACS RangL Submarines conduct Fleet Operational Readiness Accuracy Check and Site
                                               (FORACS) operations off the Waianae coast to calibrate their sensors. These operations
                                               consist of slowly proceeding in a specified course and measuring sensor bearings to a sound
                                               source of known positions. The sound source is located within the 100-fathom isobath, as is
                                               a portion of the FORACS range.

                                           (2) Qa-Deck Shelter (DDS) Operations, Submarines conduct dry-deck shelter operations in the
                                               leeward waters west of Oahu involving launching/retrieving of swimmers, swimmer delivery
                                               vehicles, and support craft from surfaced and submerged submarines.

                                           (3) Pokai Bay. USMC parachute operations involving water landings are conducted on a quarterly
                                               basis at Pokai Bay, off Makua. These operations include personnel and small boat insertions,
                                               and include the dropping of non-recoverable smoke flares.

                                           (4) Makua Vallei Milit= Reservation. Army helicopter conduct frequent low level flights (200-
                                               500 feet) along the coast enroute from Wheeler AAF (from thd north via Dillingham and
                                               Kaena Point or firom the east via Kolekole Pass and NAVMAG Lualualel) and from NAS
                                               Barbers Point supporting air assault training and fire buckets operations. Makua Valley is
                                               inaccessible by air from the north, east and south due to the proximity of the Waianae
                                               mountains. It affords the only company level live fire training area on Oahu

                                        h. Dillingham Airfield.    Dillingham, the adjacent uncontrolled airspace on/off shore, and the
                                           published military helicopter training route are used extensively for night unaided and NVG
                                           training. Helicopters routinely overfly coastal water at low level during approach, takeoff, closed
                                           traffic operations, and air assault training at the Army training area abutting Dillingham.

                                        i. A.-31 1. Army helicopters frequently conduct day/night low level training flights between Wheeler
                                           AAF and the primary tactical training area on Oahu, alert area'A-3 11. Adverse weather (low
                                           ceilings over the western edge of the Kahuku mountain range) often requires aircraft to divert, low
                                           level (200 to 500 feet) seaward of the North Shore enroute to A-31 1.

                                  2.    Opcrations adjacent to pro2gsed sanctu= boundaries: The ocean areas and airspace north and south of
                                        the island of Oahu are divided onto a number of special operating areas in which live conventional
                                        ordnance firings are routinely conducted by surface ships and aircraft. Air tactics training is also
                                        routinely conducted at altitudes above 200 feet.

                             C. KAULA ROCK. An unattended/non instrumented target approximately 52 nautical miles southwest of
                                  Kauai. Kaula Rock is an island with an area of .7 by .5 nautical miles upon which inert ordnance may be
                                  expended on the first 1000 feet of the southeast tip.      Air to ground training exercises expend inert
                                  conventional ordnance and night illumination devices. Oahu-based Army helicopters occasionally conduct

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                         Hawaiian Islands Humpback Whale                                                                    Appendix F: Military Activities in Hawaii
                         National Marine Sanctuary

                                      aerial gunnery training at Kaula Rock (W-187/R-3107). Operations entail open ocean and near-shore, low
                                      level, tactical flight (200-500 feet) enroute, and the expenditure of inert air-to-ground missiles and rockets
                                      on site.

                                D.    HAWAII (ISLAND). Few operations occur inside the 100-fathom isobath surrounding Hawaii. Army and
                                      USMC helicopter operations regularly occur over the island, primarily in support of military exercises at
                                      the Pohkuloa Training Area (PTA) in the center of the island between the volcanoes, and enroute to/from
                                      home bases on Oahu. Navy and Army landing craft frequently on/off load supplies and equipment at
                                      Kawaihae Bay (Kawaihae docks) in support of military training at PTA. Navy ships conduct periodic port
                                      visits at Hilo and Kona.

                                                                                              GLOSSARY

                                                               AAF        ............................ Army airfield
                                                               AAV        ............................ Amphibious assault -vehicles
                                                               AMTRACs          ................... Amphibious-tracked landing vehicles
                                                               ASU        ............................. Anti-surface
                                                               ASW        ............................ And-submarine warfare
                                                               BARSTUR         .................... Barking Sands Tactical Underwater Range
                                                               BSURE      ........................ Barking Sands Underwater Range Expansion
                                                               DDS        ............................ Dry deck shelter
                                                               EOD        ............................ Explosive ordnance disposal
                                                               FORACS       ...................... Fleet Operational Readine@s Accuracy Check and Site
                                                               LCAC       .......................... Landing craft, air cushion
                                                               HATS       ......................... Hawaiian area tracking system
                                                               MCM        ........................... Mine counter-measure
                                                               NAS        ............................ Naval air station
                                                               NAVMAG          ..................... Naval Magazine
                                                               NVG        ............................ Night vision goggles
                                                               P-3        .............................. Patrol aircraft
                                                               RECON      ........................ Reconnaissance
                                                               RIMPAC       ....: ................. Rim of the Pacific (Specific multi-national exercise)
                                                               OPAREAs         .................... Operating areas        '
                                                               PMRF       .......................... Pacific Missile Range Facility, Barking Sands, Kauai
                                                               USMC       ......................... United States Marine Corps

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                          and Management Plan

                       Appendix F: Military Activities in Hawaii                                  Hawaiian Islands Humpback Whale
                                                                                                         National Marine Sanctuary

                                                   TIUS PAGE DELIBERATELY LEFr BLANK

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               Hawaiian Islands Humpback Whale                                     Appendix G: Species Profile
               National Marine Sanctuary

                                                      Appendix G

                                                               ENVIRONMENTAL IMPACT
                                                                 RESEARCH PROGRAM

                                                               TECHNICAL REPORT EL-89-10

                                                 SPECIES PROFILES: LIFE           HISTORIES AND
                                               ENVIRONMENTAL REQUIREMENTS OF COASTAL
                                                    VERTEBRATES AND INVERTEBRATES
                                                            PACIFIC OCEAN REGION

                                                                      Report 2
                                               HUMPBACK WHALE, MEGAPTERANOVAEANGLIAE

                                                                         by
                                                           Eugene T. Nitta, John J. Naughton
                                                                  Southwest Region
                                                           National Marine Fisheries Service
                                                    National Oceanic and Atmospheric Administration -
                                                             Honolulu, Hawaii 96822-2396

                                                                   November 1989
                                                                Report 2 of a Series

                                                  Approved For Public Release, Distribution Unlimited

                                                    Prepared for DEPARTMENT OF THE ARMY
                                                             US Army Corps of Engineers
                                                             Washington, DC 20314-1000

                                                          Monrtored by Environmental Laboratory
                                                   US Army Engineer Waterways Experiment Station
              US ARMY CORPS                    3909 Halls Ferry Road, Vicksburg. Mississippi 39180-6199
              of Engineers

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                             Appendix G: Species Profile                                Hawaiian Islands Humpback Whale
                                                                                         National Marine Sanctuary

                                                       Unclassified
                                                                                REPORT DOCUMENTATION PAGE
                                                                                                                                                                    1a  Report Security Classification   1b  Destinctive Markings

                             2a Security Classification Authority  3  Distribution of Report                                                                                        Unclassified                        Approved for public release; distribution
                                                                    unlimited.
                                                                                                                                             Technical Report
                             2b  Declassification/DownGrading Schedule
                                                     4 Performing Organization Report Numbers 5 Monitoring Organization Report Numbers                         laboratory
                                                                        Technical Report EL-89-10                                 See revers                      See reverse.
                             6a Name of Performing Organazation  6b Office Sybol  7a Name of Monitoring Organization
                                See Reverse.                      {if applicable}  USAEWES
                                                                                   Environmental Laboratory                                                                             6c Address {city,state and zip code}  7b Address {city,state and zip code}
                                 See reverse.                         3909 Halls Ferry Road
                                                                      Vicksburg, MS 39180-6199                                         Mitt&. Eugene T.: Naughton. John J.
                              Name of funding/sponsoring    Office symbols   9 Procurement instrument identification number
                              Address {city,state and zip code}               Source of funding numbers                                                                                                                  Washington, DC 20314-1000                     program   project task    work unit
                                                                            element no.  no.    no.    Accession No.
                              11 Title   Species Profiles:  Life Histories and Environmental Requirements of Coastal Vertebrates and
                                                      Invertebrates,  Pacific Ocean Region:  Report 2, Humpback Whale,
                              12 Personal Author{s}   MItta. Eugene T.; Naughton, John J.                                                   techniques chat are enable to detect small changes. so measurable trend. or one or any can-
                               13a Type of report       13b Time Covered        14 Date of Report (year,month,day}  15 Page count
                                   Report 2 of a series    from  to             NOvember 1989       29
    16 Suplementary Notation
         Available from Nation Technical Information Service, 3285 Fort Royal Road, Springfield, VA 22161.
     17       18 Subject Terms Environmental requirements Life cycles Hawaii Humpback whale
     19  Asstract  Commercial overexploitation resulted is the deplation of the NOrth Pacific population
         of humpback whales.  A major component of this population winters in Hawaiian waters, where                                              the low range of voter temperatures in comparison with brooding areas in other parts of the
         reproductive activities occur.  There are no apparent identifiable trends in the status of                                                                                                                                               (Continued
         this population.  This may be due to inconsistent survey affors, the imprecision of survey
         techniques that are unable to detect small changes, no measurable trend, or one or say com-
         bination of these factors.  During the winter breeding season, humpback whales are found
        within the 100-fatham isobath and shallover waters around the main Hawaiian islands.  Cow-
        calf pairs, in particular, demonstrate an affinity for waters of less than 50 fathoms.  If                                                                                                                                  Unclassified
      appears that size, depth, and substrate of shallow bank areas are important elements in the
    distribution of humpback whales on their wintering grounds.  The sea-surface temperature in
    Hawaiian waters ranges from 23.2 to 24.2 c during the winter breeding season and is at
    the low range of water temperatures in cooperison with breeding areas in other parts of the
    {continued}
    20 Distrubution of abstract            21 Abstract security classification
                                              Unclassified
    22a Name of Responsible Individual
    22b Telephone (include area code)  22c Office symbol
    dd Form 1473 Security classification of this Page
    Unclassified

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                   Hawaiian Islands Humpback Whale                                                             Appendix G: Species Profile
                   National Marine Sanctuary

                                     Unclassified

                                     6a. & c. Name and address of Performong Organization (continued).

                                     National Marine Fisheries services, NOAA

                                     Southwest Region
                                   Honolulu, HI 96822-2396

                                     19. ABSTRACT (Continued).

      world . The major environmental impact facing humpback whales In Hawaiian waters is the
      Loss and modification of shallow seashore habitat to harbor, resort, and other coastal
    development, and the subsequent increase in human activity including vessel traffic, which
    may result in disturbances and displacement of humpback whales from preferred habitat.

     Unclassified                                                                                        Security Classification OF this page

                   Final Environmental Impact Statement                           Page 397                                                   Page 397
                   and Management Plan

                     Appendix G: Species Profile                                          Hawaiian Islands Humpback Whale
                                                                                                  National Marine Sanctuary

                                                                       PREFACE

                                     This report was published as part of the Environmental Impact Research
                              Program (EIRP), sponsored by Headquarters, US Army Corps of Engineers
                              (HQUSACE). Partial funding was provided by the US Army Engineer District,
                              Honolulu. Technical Monitors were Dr. John Bushman, Mr. David P. Buelow, and
                              Mr. Dave Mathis of HQUSACE. Dr. Roger T. Saucier, Environmental Laboratory
                              (EL), US Army Engineer Waterways Experiment Station (WES),.was EIRP Program
                              Manager.
                                    This report is designed to provide coastal managers, engineers, and
                              biologists with a brief comprehensive sketch of the biological characteristics
                              and environmental requirements of the humpback whale, megaptera novaem9liae,
                              and to describe how populations of the species in the Hawaiian waters may be
                              expected to react to environmental changes caused by coastal development. The
                              report has sections on taxonomy, life history, ecological role, environmental
                              requirements, growth, exploitation, and management. The'report was prepared.
                              by Messrs. Eugene T. Nitta and John J. Naughton of the Southwest Region,
                              National Marine Fisheries Service (NMFS), under support agreement WESCW88-241.
                                    Dr. C. Scott Baker, National_Cancer Institute, Department of Health and
                              Human Services; Dr. James D. Darli    'ng and Ms. Elizabeth Mathews, West Coast
                              Whale Research Foundation, Vancouver, B.C.; Dr. Dale Rice and Ms. Sally
                              Mirroch, National Marine Mammal Laboratory, NMFS;.Dr. Gerald Scott, Miami
                              Laboratory, Southwest Fisheries Center, NMFS; and Mr. Michael T. Lee, US Army
                              Engineer District, Honolulu, provided reviews of the manuscript. Mr. Allan
                              Wolman, National Marine Mammal Laboratory, NMFS, and Dr. Darling provided
                              additional unpublished data.
                                   Mr. Edward J. Pullen, Coastal Ecology Group, EL, served as Contract
                              Monitor for this study under the general supervision of Dr. Conrad J. Kirby,
                              Chief, Environmental Resources Division, EL,,and Dr. John Harrison, Chief, EL,
                              WES.
                                   COL Larry B. Fulton, EN, was Commander and Director of WES.
                              Dr. Robert W. Whalin was Technical Director.

                                   This report should be cited as follows:
                                  .Nitta. Eugene T., and Naughton, John J. 1989. *Species Profiles: Life
                                   Histories-and Environmental Requirements of Coastal Vertebratbs and.
                                   Invertebrates, Pacific Ocean Region; Report 2. Humpback Whale, megapter'a
                                   novaeangliae," Technical Report EL-89-10, prepared by National Marine
                                   Fisheries Service, National Oceanic and Atmospheric Administration,
                                   Honolulu, HI, for the US Army Engineer Waterways Experiment Station, MS.

                     Page 398                                                          Final Environmental Impact Statement
                                                                                                      and Management Plan

                  Hawaiian Islands Humpback Whale                                                 Appendix G: Species Profile
                  National Marine Sanctuary

                                                                  CONVERSION TABLE

                                                              metric to U.S. Customary

                                   Multip]                                                            To Obtain
                             millimeters    (mm)                         0.03937                inches
                             centimeters    (cm)                         0.3937                 inches
                             meters (m)                                  3.281                  feet
                             meters (m)                                  0.5468                 fathcms
                             kilometers   (km)                           0.6214                 statute miles
                             kilometers   (km)                           0.5396                 nautical miles

                             square meters (m2)                          10.76                  square feet
                             square kilometers (kM2)                     0.3861                 square miles
                             hectares (ha)                               2.471,                 acres

                             liters (1)                                  0  2642                gallons
                             cubic meters (m3)                           35  31                 cubic feet
                             cubic meters (m3)                           0.0008110              acre-feet
                             milligrims (mg)                             0.00003527             ounces
                             'grams (g)                                  0.03527                ounces
                             kilograms (kg)                              2.205                  pounds.
                             metric tons (t)                         2205.0                     pounds
                             metric tons (t)                             1.102                  short tons

                             kilocalories (kcal)                         3.568                  British thermal units
                             Celsius degrees (OC)                        1.80C)     32          Fahrenheit degrees

                                                             U.S. Custamarv to Metric
                             inches                                      25.40                  millimeters
                             inches                                      2.54                   centimeters
                             feet (ft)                                   0.3048                 meters
                             fathoms                                     1.829                  meters
                             statute miles (mi)                          1.609                  kilometers
                             nautical miles (nmi)                        1.852                  kilometers

                             square feet (ft2)                           0.0929                 square meters
                             square miles (mi2)                          2.590   -              square kilometers
                             acres                                       0.4047                 hectares

                             gallons (gal)                               3.785                  liters
                             cubic feet (W)                              0.02831                cubic meters
                             acre-feet                              1233.0                      cubic meters
                             ounces (oz)                           28350.0                      milligrams
                             ounces (oz)                                 28.35                  grams
                             pounds (lb)                                 0.4536                 kilograms
                             pounds (lb)                                 0.00045                metric tons
                             short tons (ton)                            0.9072                 metric tons
                             irritish thermal, units (Stu)               0.2520                 kilocalories
                             Fahrenheit degrees (OF)                     0.5556  (OF    32)     Celsius degrees

                                                                         iv

                   Final Environmental Impact Statement                                                                Page 399
                   and Management Plan

                      Appendix G: Species Profile                                          Hawaiian Islands Humpback Whale
                                                                                                    National Marine Sanctuary

                                                                         CONTENTS

                                                                                                                         Page

                                PREFACE  .........................   ............................................        iii
                                CONVERSION TABLE   .............                                                            IV
                                NOMENCLATURE/TAXONOMY/RANGE     ................................................            I
                                MORPHOLOGY AND IDENTIFICATION AIDS      ..........................................          I
                                REASON FOR INCLUSION IN SERIES     ...............                               ......     3
                                LIFE-HISTORY AND ECOLOGY     ...... *"***:::*******                              **'***     4
                                Reproduction and Recruitment       .....     .....................................          4
                                Mating Behavior     ..........................................................              4
                                Vocalizations    ............................................................               5
                                Natural Mortality      ........................................................             5
                                Ectoparasites and Commensals       .............................................            6
                                Accidental Mortality     ....................................      i.@  ...............     6
                                Feeding    ...................................................................              6
                                EXPLOITATION AND POPULATION SIZE      ............................................          7
                                history of Exploitation      ....................................................           7
                                Current and Initial Stock Size        ...........................................           7
                                DISTRIBUTION  .................................................................             8
                                Migration    .................................................................              9
                                Seaional Habitats and Stock Structure         ......................................        9
                                HABITAT USE ................................................................. .             9
                                ENVIRONMENTAL REQUIREMENTS   ................................      * .................   11
                                Water Depth    ..............................................................            11
                                Bank Characteristics      .....................................................          12
                                   A. Size    .................................................................          12
                                   B. Leeward vs Windward      .................................................         12
                                   C. Substrate   ......................    i ...................................        13
                                Surface-Temperature    ......................................................            13
                                Surface Salinity    ........                                                        ...  14
                                Surface tu"ents     ...........                   ................................       14
                                Turbidity  ..................................................................            14
                                IMPACTS  ........................  *..... * .....................................        15
                                Coastal Development    .......................................................           15
                                Vessel Traffic   ...........................................................             is

                            .LITERATURE'CITED    ...........................................................             18

                                                                          v

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                                                                                                        and Management Plan

               Hawaiian Islands Humpback Whale                                         Appendix G: Species Profile
               National Marine Sanctuary

                                           Figure    1.     Humpback  whale
                            (Northwest Fisheries Center, National Marine Fisheries Service)

                         THE NORTH PACIFI'C HUMPBACK WH-ALE
                                         I N H A W A I I A N       W A T Z R 5

                  NOMENCLATURE, TAXONOMY, AND RANGE                shore islands of central Baja Cili-
                                                                   fornia to Cabo San Luca's and       the
                  Scientific name  ..............   Meqaotera      southern Gulf of California; and off
                     novaeangliae (Borowoski, 1781)                mainland    Mexico from Sonora      , to
                  Preferred common name    .......   Humpback      Jalisco, and the Revillagigedo Is-
                     whale (Figure 1)                              lands (Socorro, San Benedicto, and
                  Other common names       Humpbacked whale        Claridn).    Distribution over      the
                  Class  ...                        Mammalia       summer feeding grounds ranges from
                  Order  ...                          Cetacea      the coasts of Honshu, Japan, and
                  Suborder                                         southern California north to the
                  Family                     Balaenopteridae       Chukchi Sea (for distribution in    the
                                                                   Hawaiian Archipelago, see Figure    2),

                  Geographic range: Worldwide. In the
                     North Pacific, winters in shallow           MORPHOLOGY AND IDENTIFICATION
                     nearshore waters, of usually         100
                     fathoms or less around the Ryukyu                Humpback whales are medium-sized
                     and Bonin Islands of Japan           and    rorquals, with adult females larger
                     Taiwan in the western North Pacific;        (average@ - 14 m) than males (average a
                     main Hawaiian Islands in the central        13   m). In comparison with          other
                     North Pacific; the coast and off-           balaenopterids such as fin          whales

                                                             I

                Final Environ7ental Impact Statement                                                     Page 401
                and Management Plan

                                               KA
                                  Nllh4j 47

                                 Sul                                        ahu

                                                                                       blokal
                                                                             0
                                                            Penguin Bank      La a                  Ma I
                                                                             Kah 21

                                                                                                                   Haw

           M

                                      W 16!0"
        QQ
        a                                                                                                      1575*

                                             figure 2.   Distribution of humpback whales In  Ilawaiian waters
                                                  ual-

                                KI

                                                                     (depths In fathoms).

                  Hawaiian Islands Hurripback Whale                                           Appendix* G: Species Profile
                  National Marine Sanctuary

                        (Balaenopiera physalus) or sei whales            patch along the ventral midline to the
                        (I. borealis), humpback whales are               anus. The undersides of the flippers
                        more    full-bodied    (Leatherwood      and     are always white; the' upper surface
                        Reeves 1983). When viewed from above,            varies from mostly black to white
                        the head is broad, much like that of a           (Leatherwood 'and Reeves 1983).
                        blue whale (I. musculus). The dorsal
                        aspect of the head is distinctive with                The    relatively      short     baleen
                        a number of fleshy knobs or tubercules           plates number from 270 to 400 and are
                        distributed from the tip of the snout            generally blackish with gray fringes.
                        to the blowhole and along the sides of
                        the lower jaws. Each one of these                     The vertebral formula is C7 + T14
                        fleshy knobs- supports at least one              + LIO + Ca21-22 - 52-53. The flippers
                        tactile -hair. In lateral view, the              have four fingers of 1: 2, 11:7, IV:
                        head is surprisingly slim and can                6, V: 3 (Nishiwaki 1965, 1972).
                        resemble an alligator in           profile.
                        Paired blowholes are characteristic of           REASON FOR INCLUSION IN SERIES
                        baleen    whales, and       the    humpback
                        while's    pear-shaped      blow    reaches           The coastal habitat of the hump--
                        heights of 2 m or higher.                        back wha  'le made it one of the most
                                                                         vulnerable species to-modern whaling.
                             The long flippers are character-            Overexploitation      resulted    in     the
                        istic of humpback whales, measuring              worldwide depletion of most stocks of
                        nearly one-third the length of the               humpback whales.      The Infieryfational
                        body; the front edge bears a series of           Whaling Commission (IWQ banned the
                        knobs and is irregularly scalloped.              commercial harvest of humpback whales
                        Ventral grooves, which number from 14            in the North Atlantic in        1955, the
                        to about 22, extend from the chin to             North Pacific in 1965, and      the South-
                        the navel (Leatherwood et al.. 1982).            ern Hemisphere in 1966. In      1976 hump-
                        The dorsal fin is located less than              back whales were listed as      an endan-
                        one-third of the body length from the            gered species under- the        Endangered
                        fluke notch and slightly behind the              Species Conservation Act of     1969. All
                        intersection of the. anus (Nishiwaki             stocks of humpback whalei,rema.in list-
                        1972).    It is relatively smal-1 and            ed as endangered under the 'Endangered
                        ranges from a distinct falcate fin to            Speciei Act of 1973, as amended.
                        a small triangular nubbin. The dorsal
                        fin is often associated with a step or               The wintering grounds of some
                        hump which is accentuated when the               stocks lie within the         territorial
                        animal dives,, from which the animal             waters of non-IWC member countries,
                        derives its common name (Leatherwood             and a few animals are taken annually
                        and Reeves 1983). The width of the               in aboriginal hunts. Humpback whales
                        flukes are one-third the total body              are also increasingly subject to sea-
                        length and are serrated or scalloped             bed mining and oil and gas recovery
                        along the trailing edge.        Coloration       activities, nearshore pollution, ocean
                        of the dorsal aspect of the flukes is            dumping, entanglement in fishing gear,
                        usually dark.      The flukes' ventral           coastal and tourist-related develop-
                        surface ranges from completely black             menf such as marinas, harbors, and
                        to almost totally white, with numerous           resorts, and    veisel-traffic.       These
                        sear patterns and other natural mark-            factors affect competition for and the
                        ings allowing identification of indi-            availability of prey resources, and
                        vidual animals over'time.                        habitat availability. Each activity
                                                                         has the potential for direct distur-
                             Humpback whales are          basically      bance (i.e., harassment) of individual
                        dark gray to black. The ventral sur-             whales or an indirect impact through
                        face is variably white, with a white             damage to habitat or both.

                                                                    3

                 Final Environmental Impact Statement
                 and Management Plan                                                                           Page 403

                     Appendix G: Species Profile                                          Hawaiian Islands Humpback Whale
                                                                                                  National Marine Sanctuary

                               Although - humpback whales          are     1987), but the usual. reproductive
                         -protected from direct exploitation an            cycle appears to be 2 or more years.
                         a large scale, population estimates               Chittleborough (1958) examined Norwe-
                         remain uncertain and low, and recovery            gian. Antarctic whaling records for
                         rates are unknown.       Furthermore,     the     females selectively taken in commer-
                         species' dependence on coastal habi-              cial whaling operations from 1950 to
                         tats for calving, rearing, courtship,             1955. He noted that 8.5% of               the
                         and feeding suggest that recovery may             sexually mature females were            both
                         be negatively affected by the continu-            pregnant and lactating and, thus, must
                         ing. degradation of these habitats.               have.mated shortly after giving birth.
                         Habitat loss and modification can have            The survival rate of calves             from
                         a particularly acute impact in coastal            annual breeders is not known.
                         Wintering    grounds associated         with
                         islands or island groups such                as        In the Northern Hemisphere births
                         Hawaii, whe *re preferred humpback whale          usually occur between- January           and
                         habitat is limited and displacement               April.   Calves are about 4 m to 5 m
                         into suboptimal  *areas may occur due to          long at birth and colored light gray
                         extensive human'activities.                       (Chittleborough 1958; Nishiwaki 1959;
                                                                           Leatherwood and Reeves 1983). The
                                                                           single calf is nursed for 10- to 1I         '
                         LIFE HISTORY AND ECOLOGY                          months and is about 8 to 9 m long at
                                                                           weaning after completing one migration
                         f!evroduction and Recruitment                     to the summer feeding grounds with its
                                                                           mother.
                             Age at sexual maturity       for both
                         male and.female humpback whales has                   Estimates of calving rates for
                         been , estimated      from      5      years      Hawaii range'from 0.29 to 0.58 (calves
                         (Nishiwaki 1959; Chittleborough 1965)             per mature -female per year) on the
                         up to 9 years (Johnson and Wolman                 basis of resighting data and aerial
                         1984).   Glockner-Ferrari and Ferrari             survey data (Herman.-and Antinoja 1977;
                         (1987) report a known-age male of 7               Baker, Perry, and Herman,     in press).
                         years actively participating in appar-            B'aker, Perry, and Heman in press) sug-
                         ent courtship behavior' in          Hawaii.       -gest that an overall calving rate of
                         More recently Clapham and Mayo (1987)             0.37 for the Hawaiian population          is
                         report known-age females with calves              most accurate,    with mature females
                         at  4 and 6 years,           respectively,        averaging every 2.7 years the birth of
                         observed in Massachusetts Bay (Gulf of            a calf that survives        'its first 6
                         Maine),   inferring age       at     sexual       months of life and its'- first migra-
                         maturity at 3 and 5 years for these               tion. Forestell (in prep.)-found that
                         individuals. Nishiwaki (1965) report-             of 347 whales sighted between January
                         ed length at sexual maturity             for      and April 1985, 35 (10%) were calves.
                         females at 11.4 - 12.0 m, and 11.1
                         11.4 m for males.                                 Mating Behavio

                            As seasonal breeders, humpback'                   Humpback whale behavior on the
                         whales have reproductive cycles that              Hawaiian wintering grounds strongly
                         are closely tied to their seasonal                s.uggests that both calving and    mating
                         migrations.   Mature females are be-              occur in or near these waters. Analy-
                         lieved to conceive on the breeding                sis -of ovaries and testes from hump-
                         grounds one winter and give birth the             back whales taken in commercial whal-
                         following winter.     Gestation       lasts       ing operations (Chittleborough     1958)
                         about 12 months. A few known females              and estimates of the length of     gesta-
                         have produced a calf in successive                tion indicate that the months            of
                         years on the       Hawaiian      wintering        assembly in Hawaii include the peak of
                         grounds (Glockner-Ferrari and Ferrari             the mating period.      Though neither

                                                                      4

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                                                                                                       and Management Plan

                Hawaiian Islands Humpback Whale                                          Appendix G: Species Profile
                National Marine Sanctuary

                    calving nor mating has actually been            Payne and Guinee 1983j. A number of
                    observed, cows with very young calves           singers have been identified as males,
                    are commonly sighted in shallow, near-          and it has been hypothesized that,
                    shore,   protected waters less than .10         among other uses,        these     humpback
                    fathoms in depth and often very close           whale songs function as acoustic dis-
                    to shore or the outer reef.         Aggres-     plays demonstrating dominance (Darling
                    sive and apparent agonistic behavior            1983;    Darling and Morowitz         1986)
                    among males presumably for access to            and/or availability (Tyack 1981; Baker
                    potentially receptive females,           and    and Herman 1984).       Some males also
                    pairing and consort behavior between            remain longer on the breeding grounds
                    males and females have been detailed            than other males and females, suggest.
                    by Baker, Herman, and Stifel        (1981);     ing that they may be dominant males
                    Darling (1983); Tyack and- Whitehead            staying as long as females come into
                    (1983); Baker and Herman (1984); and            estrus (Darling 1983).
                    Glockner-Ferrari and Ferrari (1985).
                    Females probably come into           estrus          "Social     sounds"    are    nonsong
                    within a 3- to 4- month period while            vocalizations produced on the winter
                    wintering in Hawaiian waters (Darling           breeding grounds and are thought to be-
                    1983).. Cuts and abrasions are inflic-          associated with agonistic         behavior
                    ted by males on each other, with, head          within -large, surface active pods of.
                    butts, flipper slaps, peduncle slaps,           humpbacks. These social sounds do not
                    breaches, and other aggressive behav-           possess the complex structure of songs
                    iors during competition for access to           with their peak energy between 1- t        'o
                    females (Baker and Herman 1984; John-           3-kHz and 'the frequency rangq_ ysually
                    son and Wolman 1984).                           below 4.7 kHz (Tyack 1983;         Mobley,
                                                                    Herman, and Frankel 1986; Silber, in
                         Commonly observed group or unit            press; A. Frankel, 1988, Kewalo Basin
                    compositions on the winter grounds              Marine Mammal Laboratory,       University
                    include: cow with calf, often escorted          of Hawaii, pers. commun.).
                    by a male; lone singers (males); lone
                    adults;  pairs of adults       (male-male,          A    third type of        stereotyped
                    male-female); and larger.groups (mul-           vocalization, the Ofeeding   call," has
                    tiple males and a female). There is a           been recorded during the summer months
                    regular interchange of         -individuals     in the vicinity of feeding whales in
                    between and among these groups that             southeastern Alaskan waters         (Baker
                    occurs over hours or days, except for           1985).   It is described as a *highly
                    cow-calf pairs     (Mobley and      Herman      stereotyped   series     of    trumpeting
                    1981; Baker and Herman 1984; Mobley             calls, each of approximately 2 sec in
                    and Herman 1985; J.D. Darling, 1988,            length, with a frequency range of 440
                    West Coast Whale Research Foundation,           to 550 kHz* (Baker 1985; Mobley, Her-
                    Vancouver, B.C., pers. commun.)                 man, and Frankel 1986).

                    Vocalizations                                   'Natural Mortality

                        On the winter breeding grounds,                 Mizroch     (1985) notes       natural
                    humpback whales produce 'songs' which           mortality estimates for North Pacific
                    have been described as a series of              humpback whales of 0.05 - 0.08 as
                    repeating,  complex sequence of sounds          reported by Ohsumi    (1979) from Doi,
                    including whistles, chirps,       squeals,      Nemoto, and Ohsumi    (1967).      Neither
                    and grunts organized into phrases or            the method of estimation nor sample
                    syllables within a phrase          (Payne,      size was reported.
                    Tyack, and Payne 1983). The frequency
                    range of these songs is generally                    Large   sharks,    such as      great
                    less than4 kHz (Payne and McVay 1971;           whites (Ca@charodon     carcharilsl and
                    Thompson, Winn,    and Perkins       1979;      tigers (Galgocerdo cuvieri), and kill-

                                                               5

                Final Environmental Impact Statement                                                        Page 405
                and Management Plan

                   Appendix G: Species Profile                                         Hawaiian Islands Humpback Whale
                                                                                               National Marine Sanctuary

                           er whales (Orcinus orca) are'      probably     tarnacles and in    depressions and folds
                           responsible for a large proportion of           in the skin.         Cookiecutter     sharks
                           the natural mortality of calves and             (Isistius spp.) and lampreys cause
                           old or ailing adults..        Large tiger       some skin and blubber damage which
                           sharks were observed consuming a hump-          probably result in some scarring.
                           back whale.calf near Molokini Island.
                           Whether the sharks killed' the calf             Accidebtal Mortality
                           first or were just feeding on the
                           carcass was not determined (Shallen-                 Humpback whales can become entan-
                           berger 1981). During the Cooperative            gled in -various types of fixed fishing
                           Shark Research and Control          Program     gear, including fish weirs and traps,
                           conducted by the University of Hawaii           lobster trap lines, buoy lines, and
                           around the HaQaiian Islands in 1967-            gill   and trammel nets.      These inci-
                           69, 6% of the tiger sharks caught had           dents have occurred mainly off the
                           large   whale and small          odontocete     northeastern United States and eastern
                           remains in their stomachs           (Tester     Canada, and most injuries and mortali-
                           1969).                                          ties are reported from these areas
                                                                           (Perkins and Beamish 1979; Lien and
                           -    In higher latitudes,          humpback     Aldrich 1982; Lien et al. 1982; Lien
                           whales that frequent the edge of ic'e           et al. 1983; Lien, Walter, and Harvey-;
                           fields are sometimes trapped in the             Clark 1985; T. MacKenzie,1989, North-
                           O'ce. (Lien at al. 1983)..                      east Region, National Marine Fisheries
                                                                           Service, pers. commun.)
                                In late   1987 and early 1988, a
                           large number of mysticete whales died                Another source of injuries and
                           and came ashore in the Cape Cod area.           accidental mortalities are,. collisions
                           A total of 15 humpback whales, 4 minke          with vessels. Since 1986, a near miss
                           whales (Balaeanoptera acutorostraU),            and two col,lisions have been documen-
                           and 2 fin whales (I.     physalus) were         ted in Hawaiian waters      (Siler 1987;
                           included in this episode.     Testing of        Stevens 1988@, Tanji 1988).     Collisions
                           mackerel found in the stomachs of the           are likely to occur with greater fre-
                           animals sampled showed the presence of          quency where high speed vessel        traf-
                           a toxin with effects similar to that            fic is increasing in areas of high
                           of paralytic shellfish poison biotpx-           whale concentrations, such as off the
                           ins.  This is the first      instance in        leeward coast of Maui     and to a lesser
                           which a biotoxin has been implicated            extent off Kailua-Kona on the I.sland
                           in large whale mortality (D.W. Beach,           of Hawaii and the south shore of Oahu.
                           1988,  Northeast     Region,      National
                           Marine   Fisheries ' Service,        pers.      Feeding
                           commun.).
                                                                               Summer   feeding areas occur across,
                           Ectoparasites and Commensals                    the Pacific, from the Aleutian     Islands
                                                                           to the Farallon Islands off        central
                              Although     humpback whales         are     California.    In the Northern      Hemis-
                           ,infested with various ectoparasites            phere the   diet of humpback        whales
                           and commensals, they rarely manifest a          consists of pelagic organisms      of the
                           debilitating reaction. Barnacles are            coastal zone. These include mainly
                           large and conspicuous over certain              krill (euphausiids) along with     school-
                           parts of the body. They tend to con-            ing fishes such as herring,        Clupei-
                           centrate along areas of high turbu-             dae; sand lance, Ammodytes sp.; cape-
                           lence, such as the flukes, the leading          lin, Mall-otus villous; juvenile sal-
                           edge of the dorsal fin and flipper, or          monids, Onchorhynchus spp.; Arctic
                           along the midline of the           ventral      cod, Boreoqdus 11LU; walleye. pol-
                           pleats:  Smaller whale lice (cyamid             lock, Pgllachius virens; and ancho-
                           crustaceans)  are distributed around            vies, Engraulis mordax; rarely cope-

                                                                       6

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                Hawaiian Islands Humpback Whale                                         Appendix G: Species Profile
                National Marine Sanctuary

                     pods,   pteropods and cephalopod mol-          to    1960   in the western        Pacific,
                     lusks   (Wing and Krieger 1983, unpub.         approximately 23,000 humpbacks were
                     manuscr., Auke Bay LaboratoryNational          taken.    Between 1960 and 1965, 'more'
                     Marine Fisheries Service, NMFS, Auke           than 5,000 were killed in commercial
                     Say, AK; Johnson and Wolman 1984;              whaling operations reducing the North
                     Krieger    and Wing 1984).         Humpback    Pacific population to about           11000
                     whales are found to be heavily clumped         (Rice 1978).
                     in their distributions relative to
                     prey abundance     (Johnson and Wolman         Current and Initial Stock Sizes
                     1984).
                                                                         The preexploitation size of the
                          Isolated incidents of apparent            North Pacific population of humpback
                     feeding and observa  'iions of defecation      whal-es prior to 1905 was estimated to
                     by humpback whales have been noted in          be about 15,000 animals (Rice 1978).
                     Hawaii.    Schooling carangids      (opelu,    A recent estimate of the North Pacific
                     Decaptero macirellus and akule, jtj.U          population of 2,100 is based on a mark
                     crumenopthalmus) occur in large aggre-         and recapture estimate derived from
                     gations within Hawaiian waters fre-            individual sightings of animals over a,
                     quented by humpback whales; however,           4 -year period (Darling and Morowitz
                     there have been no confirmed sightings         1986).   Estimates- for the- Hawaiian
                     of humpback whales feeding on these            stock range from 550-790 to- 2,100'
                     potential    prey species.        Humpback     (Rice abd Wolman 1979, unpub. manuscr.
                     whales are not known to regularly feed         submitted to IWC Scientific Committee;
                     in Hawaiian waters      (Glockner-Ferrari      Baker et al.   1986; Darling and-Mero-
                     and Ferrari 1985).                             witz 1986). The wide range of esti-
                                                                    mates is likely due to differences in
                          Humpback whales feed at the sur-          analysis of mark and recapture data
                     face down to about 150 m (Dolphin              and survey techniques.       Until more
                     1987).   Feeding techniques have been          data are available, these est.imates
                     described as skimming, lunge feeding,          should be used-with considerable cau-
                     and circular swimming (Jurasz          and     tion (Table 1).
                     Jurasz 1979). Bubble net feeding is
                     an interesting be6avior in which 'a                Minimum counts based on the total
                     submerged. whale releases a stream of          number of unique individuals       identi-
                     buables in patterns ranging from lines         fied over a'specified period of time
                     !-nd partial circles to complete cir-          have also been developed. These range
                     cles with "tails." The animal then             from  521 individuals for one year
                     rises through the concentration of             in 1981, to 922 over 4 years from 1977
                     prey, with its mouth open.         Various     to 1981 (Darling and Morowitz 1986).
                     levels of apparent cooperation during          Perry et al. (1988)     identified 1,140
                     bouts of feeding have also been. ob-           unique individual humpback whales over
                     served, including herding of          prey     a 9-year period (1977-1985) for the
                     (Baker and Herman 1985).                       Central and eastern North Pacific.
                                                                    These. counts do not account           for
                                                                    mortality or recruitment and should
                     EXPLOITATION AND POPULATION SIZE.              not be considered abundance estimates.

                     Hiltory Of E1210itation                            Estimates     for    the    wintering
                                                                    stocks in Mexico and the           western
                         An unknown number of humpback              Pacific are as yet unavailable, though
                     whale's were taken by aboriginal hunt-         numbers have been speculated to be in
                     ers and commercial whalers prior to            the hundreds or less.        During the
                     1900 in the North Pacific. During the          winter and spring of 1986, more than
                     course of modern whaling from 1905 to          100 individual humpbacks were photo-
                     1960 in the eastern Pacific and 1889           graphically    identified    in     waters

                                                                7

                Final Environmental Impact Statement                                                      Page 407
                and Management Plan

                     Appendix G: Species.Profile                                               Hawaiian Islands Humpback Whale
                                                                                                        National Marine Sanctuary

                            Table 1. Humpback whale abundance estimates               Hawaii and the North Pacific.

                                                     Count or
                                  Melhod             Estimate           Time Erante        Area               Source
                                  Photo-I.D.           1140             1977-1985          E.N.   Pacific     Perry et al.
                                  Minimum               635             1977-1985          Hawaii             1988
                                  Count
                                                        521               1981             Hawaii             Darling and
                                                        922             1977-1981          Hawaii             Morowitz
                                                                                                              1986

                                  Modified             1000               1981             Hawaii             Darling and
                                  Bernoulli            2100-            1977-1981          Hawaii  and        Morowitz
                                  Estimate                                                 E.N. Pacific       1986

                                  Petersen             1627             1977-1983'         Hawaii             Baker eft al.
                                  Estimate            (�307)                                                  1986
                                  Weighted             1407             1980-1983          Hawaii             Baker and
                                  Petersen           (-4294)                                                  Herman 1987
                                  Estimate

                                  Vessel            530-790             1976-1979          Hawaii             Rice and
                                  Survey                                                                      Wolman 1979
                                                                                                              (unpub.)

                                  Aerial               900               1985              Hawaii             Forestell
                                  Survey             L+150)                                                   (in press)

                       around Isla Socorro        and Isla Isabel            tified individuals. A rough estimate
                       off Mexico, indicating a larger popu-                 of abundance based on available infor-
                       lation than previously believed (Urban                mation indicates a population                eat
                       and Aguayo 1987). In the late winter                  least in the low hundredso for this
                       of 1988, is humpback whales were iden-                area (Darling and Ford 1988).              There
                       tified, including at least 3 with new                 is no current information regarding
                       .calves, In the Bonin Islands south of                abundance of humpback whales from the
                       Japan.      Five humpback 'whales           were      other western North Pacific wintering
                       photographed in 1987, but not seen in                 areas off the Mariana Islands, Ryukyu
                       1988, resulting in,a total of 20 iden-                Islands, and Taiwan'.

                                                                         8

                     Page 408                                                                Final Environmental Impact Statement
                                                                                                              and Management Plan

                Hawaiian Islands H'umpback Whale                                       Appendix G: Species Profile
                National Marine Sanctuary

                    D ISTRIBUTION                                 McSweeney 1985;     Baker et al. 1986),
                                                                  and the Farallon   Islands off Califor.
                    Migration                                     nia (Baker et al. 1986) during the
                                                                  summer. While humpback whales have
                         In Australia, Dawbi.n (1966) found       been observed in southeastern Alaska
                    that humpback whales do not require           in all months of the yearno one indi-
                    coastal   conditions for       migration.     vidual his yet been documented to
                    Migration routes could not be related         overwinter or stay year-round (Straley,
                    consistently to the direction of ocean        in press). Two individuals have also
                    currents, the nature of water masses,         been identified wintering in Hawaii
                    or bottom topography.                         during- one year and in Mexico in
                                                                  another year (Darling and McSweeney
                         Humpback whales begin arriving In        1985; Baker et al..1986). Darling and
                    Hawaiian waters as early as      October,     McSweeney (1985) suggest that, because
                    though the season is more commonly            of these migratory connections, all
                    thought of as beginning in     December.      humpback whales in the eastern North
                    Baker et al. (1985) reported   a minimum      Pacific are of the same stock.      Baker
                    known   migration time of      79    days     et al. (1986) also propose that     hump-
                    between -Alaska and Hawaii     based on       back whales in the eastern and central
                    resighting data. A peak in relative           North Pacific are of one stock and
                    numbers of whales occurs in February          form several geographically isolated
                    (Herman, Forestell, and Antinoja 1980;        feeding'herds.     These authors define
                    Forestell, in press). Baker and Herman        the term 'structured stock" as several
                    (1981) found that from 1977 to 1979           feeding herds that intermingle          to
                    the Island of Hawaii showed the earli-        breed   on one or      more     wintering
                         peak influx of whales,          with     grounds.
                    islands to the.northwest showing pro-
                    gressively later dates of peak resi-          HABITAT USE
                    dency.   Most whales depart by the end
                    of April, though a few may           stay         In general,   humpback whale dis-
                    through early June (Herman, Forestell,        tribution in Hawaii appears to be
                    and Antinoja 1980).                           limited to the 100-fathom (183 m) iso-
                                                                  bath and shallower waters. (Figure 2).
                        The average duration of wintering
                    in Hawaii for either sex of any age               Surveys,in the late 1970's (Wol-
                    class is unknown.       Glockneri-Ferrari     man and Jurasz 1977; Rice and Wolman
                    and Ferrari (1985) reported a maximum         1979, unpubl. manuscr. submitted to
                    known cow-calf residency interval in          IWC  Scientific Committee;        Herman,
                    Hawaii of 56 dkys.       Dawbin (1966)        Forestell, and Antinoja 1980) showed
                    found a succession in the migration to        that humpback whales prefer certain
                    colder waters by different segments of        areas over others in Hawaii. The area
                    the population, with an early depar-          of greatest use was found to be the
                    ture of females without calves.        In     four-island area (Maui, Molokai, La-
                    Hawaii, females with calves tend to be        nai, Kahoolawe) and Penguin         Bank.
                    the  last to leave the wintering              Also heavily utilized were the Island
                    grounds (Herman, Forestell, and Anti-         of Niihau and the Island of Hawaii,
                    noja 1980).                                   Keahole Point north to Upolu Point
                                                                  (Figure 3).- Kauai, Oahu, and the
                    Seasonal Habitats and Stock 5tructure         eastern and southwestern waters of the
                                                                  Island-of Hawaii received substantial-
                        Individual whales. wintering in.          ly less usage. Kaula Island,         just
                    Hawaii have been identified in the            southwest of Niihau appears to mark
                    Gulf of Alaska .(Kodiak Island, Prince        the western limit of humpback whale
                    Villiam  Sound'. and Yakutat       Bay),      distribution in Hawaii., as few animals
                    southeastern  Alaska     (Darling    and      have been reported around the atolls,

                                                             9

                Final Environmental Impact Statement                                                    Page 409
                and Management Plan

            Qa

                                                          KAual

                                           NIIh-u

                                         9,861                                            ahu

                                                                                                        lokal

                                                                         Panguln Bank                                Ma I
                                                                                             LBO
                                                                                        Mantsea say
                                                                                           Kah6QqI                        Upolu Pt.
                      C31
                                                                                                              NUOU

                                                                                                     Keahole ft,

                                                                                                       Kailua Bay

                                                                                                                          South P1.

                                                W 100
                                                                                                                                 15
         CM 0

            En
                                                    Figure 3.    Areas of reported high density     of  humpback whales
                                              r@- rp

                                                                               (depths In fathoms).
            CD

                   Hawaiian Islands Humpback Whale                                            Appendix G: Species Profile
                   National Marine Sanctuary

                       islands,. banks,      and  reefs of       the    gray whale      (Eschrictius      robustus).
                       .northwestern Hawaiian Islands.           Al-    Humpback whales also are affected by
                       though all-island surveys have            not    human activity to a greater degree
                       been undertaken since 1979, indica-              than other balaenopterids.
                       tions are that this general usage
                       pattern has remained fairly consis-              Wate@ Depth
                       tent. 'Fluctuations in relative abun-
                       dance within and'between islands occa-                 The    distribution of        humpback
                       sionally occur.                                  whales during winter is almost exclu-
                                                                        sively over relatively shallow banks.
                             Humpback whales are known     to use       Winn, Edel, and Taruski (1975) found
                       the waters of Hawaii to nurse their              that 99% of the sightings of humpback
                       young.     In addition, calving, court-          whales in the West Indies are found on
                       ship, and mating are thought to occur            banks    between the 10- and 100-fathom
                       in or near Hawaii, though confirmed              (18 and 183 m) line.        Whitehead and
                       sightings of these behaviors have not            Moore (1982) narrow this down further
                       been observed to date.            Aggressive     by stating that humpback whales in the
                       male-male competition for          sexually      West Indies principally winter             in
                       mature females, including cows with              waters between 15 and 60 m deep.
                       calves, is evident throughout             the
                       season in Hawaii (Baker and Herman                     The same affinity for banks oc-
                       1984).    Cows with newborn calves are           curs in humpback whales wintering in
                       commonly found throughout the winter,            Hawaiian waters (Figure 3).           Wolman
                       and general     areas of high usage by           and Jurasz (1977) found that of 373
                       these pairs have been observed.         Her-     whales sighted in Hawaiiair Qaters,
                       man, Forestell, and Antinoja (1980)              only 7 were in deep interisland chan-
                       defined the north coast of Lanai as an           nels or in water deeper than 92 m.        In
                       arsa of high cow-calf density.          Hud-     a subsequent vessel survey, Rice and
                       nall (1978) suggested Maalaea Bay,               Wolman (1979, unpub. manusc@. submit-
                       Maui, as a major nursery.area.        Glock-     ted to   the IWC Scientific Committee)
                       ner-Ferrari and Ferrari (1985) charac-           sighted only 2 out of 411 humpback
                       terized the southwest coast of Maui              whales   in waters deeper than 180 m.
                       from MacGregor Point to Kaanapali as             Tinney   (1988) states that whales in
                       an area of high-calf use.         Forestell      Hawaii   tend to favor water about 25
                       ( in press) found roughly three times            fathoms  (46 m) in depth.
                       as many total calves in the four is-
                       land area as over Penguin Bank during                  Off windward  Oahu,.adult humpback
                       aerial surveys.                                  whales have been    observed on several
                                                                        occasions swimming slowly parallel to
                       ENVIRONMENTAL REQUIREMENTS                       but just seaward of the 10-fathom
                                                                        (18 m) isobath where a sharp sea bot-
                            Humpback     whales are       strongly      tom   escarpment drops from 16            to
                       migratory, though routes between win       ' -   approximately 15 fathoms (18 to 27 m)
                       ter calving.areas and summer feeding             (J.   Naughton,     Southwest       Region,
                       grounds are not well known.        Humpback      National Marine Fisheries          Service,
                       whales occur very close to shore and             Honolulu, pers.     obs.).    The whales
                       appear to be relativelysedentary once            appear to follow   the depth contour as
                       they arrive at their northern             or     they migrate along the coastline.
                       southern seasonal destination (Lea-
                       therwood et al. 1982).        Because of               Gloikner-Ferrari     and , Ferrari
                       this behavior, they appear to have               (1985) report that of the mothers and
                       specific environmental        requirements       calves they recorded off Maui in 1977
                       more closely associated with            land     and 1979, 80.3% were within the 10-
                       masses than do,any other species of              fathom (18 m) cur    ive..  Glockner and
                       large whales with the exception of the           Venus (1983) found mothers and calves

                 Final Environmental Impact Statement                                                          Page 411
                 and Management Plan

                                                                                       Hawaiian Islands Humpback Whale
                  Appendix G: Species Profile                                                   National Marine Sanctuary

                         resting     in shallow waters often just         erally surrounded by these four is-
                         beyond    the surf line.    In a study      in   lands but also including Penguin Bank.
                         Maalaea Say, Maui, by Muller,        Carini,     They found the greatest concentration
                         and Hudnall    (1980 unpub.        manuscr.,     of whales, with 0.78 whale per square
                         Maui 'Whale   Research Institute),       most    mile,   on -Penguin Bank,      the    largest
                         whales were   observed in water 25 to 73         single bank area in the main        Hawaiian
                         m deep.   The only calves seen were in           Islands.      The second most -important
                         water estimated to be less than 18 m             area was the Island of Hawaii, partic-
                         deep.    High cow-calf densities rela-           ularly the northwest coast where an
                         tive to other age classes of whales at           expanded bank occurs        between    Upolu
                         specific   sites off the west coast of           Point and Keahole Poi.nt.     Other coast-
                         the Island of Hawaii have also been              al  areas surrounding the        Island of
                         noted.    These areas     include waters         Hawaii are bordered by a narrow shelf,
                         shallower than 50 fathoms (91 m)         be-     with the exception of an expanded bank
                         tween Keahole Point and Kiholo Bay,              in Hilo Bay and at Ka Lae             (South
                         and from Keahuolu Point to Kailua Bay            Point). Both these areas have yielded
                         (M. Smultea 1988, Moss Landing Marine            consistently     high    humpback      whale
                         Laboratory, pers. commun.; E. Mathews            counts (Figure 3).
                         and 0. McSweeney. 1988, West Coast
                         Whale Research Foundation, pers. com-                 In American Samoa a small number
                         mun.). Compared with      other     age/sex      of. humpback whales, including cows
                         classes  of the population,      the data        with* calves,    are sighted    each -year
                         indicate.that mothers and calves' pre-           from July through October in the wat-
                         fer shallower waters. Cows with new-             ers surrounding Tutuila Island.          The
                         born calves tend to segregate them-              bank surrounding Tutuila is especially
                         selves from other whales as well as              broad off Cape Taputipu and Leone Bay.
                         from other cows and calves.             This     These areas yield,the most sightings
                         suggests that females with calves need           each year (J.      Naughton,      Southwest
                         substantial areas of shallow water in            Region, National Marine Fisheries Ser-
                         which to swim, rest,' and presumably             vice, Honolulu, pers. obs).
                         nurse (Tinney 1988).
                                                                          B. Leeward versus Windward
                         Bank Charag_teristics
                                                                              From December through March in
                         A. Size                                          Hawaiian waters, northeast trade winds
                                                                          are present about 55% to 65% of the
                             In addition    to water depth, the           time. These northeast trades result in
                         size of the'bank appears to be of                generally consistent wind and wave
                         importance to humpback whales on their           action on windward coasts. Winds from
                         wintering grounds.     Winn,   Edel,    and      the south and occasionally from the
                         Taruski (1975) found that in West                north account for the remainder of the
                         Indies waters, coasts with          narrow       wind and swell patterns (Herman 1979).
                         shelves, generally less than 2 miles
                         wide, do not harbor humpback whales.                 Rice and Wolman (1979, unpubl.
                         In contrast, the broad bank area of              manuscr. submitted to 1WC Scientific
                         Silver and Navidad Banks contains the            Committee)  found far more whales on
                         -greatest concentration of        humpback       the leeward side of the Hawaiian Is-
                         whales in the West Indies.                       lands than on the windward            side.
                                                                          However, when calculated on the basis
                            Similarly, in Hawaii         Rice and         of whales per unit area, there was
                         Wolman (1979,-unpubl. manuscr. submit-           little difference between the          two
                         ted to IWC Scientific Committee) found           sides. They concluded that the-greater
                         by far the greatest number of whales             abundance of whales on the leeward
                         on the    Molokai-Lanai-Maui-Kahoolawe           side appears to be due mainly to its
                         bank, a large shallow bank area gen-             larger areas of shallow water rather

                                                                     12
                    Page 412                                                           Final Environmental impact*Statement
                                                                                                      and Management Plan

                  Hawaiian 'Islands Humpback Whale                                           Appendix G: Species Profile
                  National Marine Sanctuary

                  than due to any marked preference by                   Whitehead and Moore (1982)        found
                  the whales for calmer waters.               In   the highest humpback whale song densi-
                  fact, the Single greatest density of             ties on Silver Bank in areas with
                  whales was found on Penguin Bank (0.78           virtually flat bottoms.. Lowest song
                  whale per square mile), an exposed               densities occurred where the bottom
                  bank area noted for its rough water.             profile was rough, indicating coral
                                                                   growth. They concluded that there is
                       Herman, Forestell, and Antinoja             evidence that singers select areas
                  (1980) also noted that Penguin Bank is           with smooth bottoms in the West In-
                  regularly exposed to strong, gusty               dies, thereby enhancing sound trans-
                  trade winds,-but is highly preferred             mission.
                  humpback whale habitat.         They found
                  that windward areas of some Hawaiian                   No comparative analysis has been
                  Islands are not used much by whal,es,            done for substrate preference in the
                  but this may reflect the limited ex-             Hawaiian Islands.     However, bank areas
                  tent of shallow water available and              with the highest concentration             of*
                  not the prevailing wind conditions.              whales    (Penguin Bank,        four-island
                  Herman (1979) concluded that there               area) are known for broad expanses of
                  seemed to be no consistent relation-             flat, sandy bottom as can be seen from
                  ship between wind or swell          patterns     bathymetric charts.
                  and habitation by humpback whales.
                                                                   Surface Temperature
                        In Australia, sheltered waters of
                  the Great Barrier Reef between lat.                   Whitehead and Moore     (1982)    found
                  16*-21*S appear to be important breed-           that humpback whales winter id- the
                  ing grounds for the East Australian              West Indies in waters'of 240to 28* C.
                  humpback whale stock. However, there             They suspect that the warm waters are
                  is evidence of humpback whales giving            favorable .    for calving since         the
                  birth prior to reaching Great Barrier            calves are born with a thin blubber
                  Reef waters     (Paterson and Paterson           layer.    In the Southern Hemisphere
                  1984).                                           Dawbin (1966) found that           humpback
                                                                   whales winter in water temperatures of
                       In the Bonin Islands, humpback              about 25* C.
                  whales including cows with new calves
                  were found in the usually rough waters                In the Hawaiian Archipelago, sea-
                  surrounding the islands. The islands             surface temperatures show relatively
                  are not high enough to create any                small seasonal and year-to-year chang-
                  significant lee, which is essentially            es, having a long-term average yearly
                  nonexistent (Darling and      Ford 1988).        range of 23.2*to 26.4* C (Seckel and
                                                                   Yong 1970). Surface temperatures dur-
                  C. Substrate                                     ing the winter in Hawaiian waters
                                                                   range between 23.2*and 24.2* C. These
                       Very little work has     been done on       temperatures are slightly cooler than
                  substrate characteristics     of the banks       those found in other known humpback
                  where humpback whales. are    consistently       whale-winter habitats.
                  found during the winter months. It is
                  believed that humpback whales feed                    The lack of sightings of humpback
                  littlej if at all, during winter (Mat-           whales in the Northwestern Hawaiian
                  thews   1937;     Chittleborough       1965;     Islands may be due to low -sea-surface
                  Dawbin    1966; Whitehead and         Moore      temperatures in the area. Huge bank
                  .1982). Therefore, the importance of             areas occur there (i.e. Necker Island,
                  substrate in attracting or supporting            Maro Reef, Gardner Pinnacles, Neva
                  prey species does not appear to be a             Shoal around Lisianski Island, French
                  consideration.                                   Frigate Shoals) and would seem to have

                                                              13

                  Final Environmental impact Statement                                                          Page 413
                  and Management Plan

                     Appendix G: Species Profile                                         Hawaiian Islands Humpback Whale
                                                                                                  National Marine Sanctuary

                          the desired characteristics; yet hump-          from 3.0 to 32.5 cm/sec       (Uchida and
                          back whales are rarely sighted in               Uchiyama 1986).
                          these areas. Confirmed'sightings have
                          been made at Nihoa Island (A. Everson,               Early studies in Hawaii suggested
                          Southwest Fisheries Center,        National     a general movement of humpback whales
                          Marine Fisheries Service. Honolulu,             south    to north through the           main
                          pers. commun. and photos), and mothers          Hawaiian Islands in the winter .(Baker
                          and calves have been sighted at French          and Herman 1981).' Whales were thought
                          Frigate Shoals (K. Kenyon, Seattle,             to enter winter habitat at the Island
                          WA., and J. Naughton, Southwest Re-             of Hawaii and work through the main
                          gion, National Marine Fisheries Ser-            islands, departing later in the season
                          vice, Honolulu, pers. obs).        However,     at Oahu., The net current flow would
                          aerial surveys specifically conducted           support this hypothesis.           However,
                          to locate    humpback whales in         the     Darling and Morowitz (1986) recently
                          northwestern Hawaiian      Islands     have     have shown that a few animals travel
                          found none (Herman, Forestell, and              from Maui to Hawaii (north to south)
                          Antinoja 1980). The slightly. cooler            in one season and sugg    'est that the
                          water in this more northerly segment            majority of the humpback whale popula-
                          of the Hawaiian Archipelago may pre-            tion was present at least through the
                          clude the use of these large banks as           peak season (January - April).         This
                          significant wintering areas by hump-            would indicate some exceptions to the
                          back whales.                                    general trend and that surface cur-
                                                                          rents may not play a major _role in
                          Surface Salinity.                               movement of humpback whales, at least
                                                                          within the Hawaiian Archipelago.
                              In    the Hawaiian       Archipelago,
                          maximum saiinity occurs in November-            Turbidity
                          February when the 350/oo          salinity
                          isopleth has moved south to lat. 17*-               In    considering the        turbidity
                          19*N  (Uchida and Uchiyama          1986).      levels of glacial runoff waters and
                          Therefore, the surface salinity in the          the generally nutrient rich conditions
                          humpback whale wintering. environment           which comprise the humpback whales'
                          in Hawaiian waters is between 350/oo            summer   feeding habitat,        turbidity
                          and 35.2P/oo.     Considering the low           would not appear to have a negative
                          salinity found in much of the humpback          environmental impact o  'n whales in the
                          whales' summer feeding grounds, it is           wintering grounds. However, a number
                          improbable that salinity plays a major          of observations have been made of
                          role in selection of wintering areas.           humpback   whales    avoiding      turbid
                                                                          coastal waters in Hawaii (Glockner-
                          'Surface Currgnts                               Ferrari and Ferrari 1985).         During
                                                                          1980, they reported that- agricultural
                             Most areas of the    Hawaiian Archi-         runoff from heavy winter storms crea-
                          pelago have a net surface current flow          ted a dense mudline in          nearshore
                          to the west.. However, flows are modi-          waters, which the whales seemed''to
                          fied by the shapes of the islands               avoid. It was believed this may be -a
                          causing large eddies to form down-              potentially important impact to the
                          stream. Close to shore, tides have a            humpback whale population in Hawaii
                          major influence on currents.    In many         (Glockner-Ferrari and Ferrari      1985).
                          coastal areas of Hawaii, a rotary               Adult  humpback whales       have     been
                          semidiurnal tidal current is present,           observed swimming in clear water par-
                          usually  varying in direction          and      allel'to a meandering band of turbid,
                          speed.  The bank areas of importance            sodiment-laden water from land runoff
                          to humpback whales are         influenced       in the area of Lalau Point, Molokai.
                          mairfly by    tidal    currents.       The      They appeared to avoid swimming into
                          strength of these currents can vary             the turbid water by changing 'direction

                                                                     14

                    Page 414                                                         Final Environmental Impact Statement
                                                                                                    and Management Plan

                  Hawaiian Islands Humpback Whale                                            Appendix G: Species Profile
                  National Marine Sanctuary

                        (J.    Naughton,      Southwest      Region,     which cetaceans have shown a definite
                        National Marine Fisheries           Service,     susceptibility      (Dailey 1985;       J.P.
                        Honolulu, pers. obs.). However, it is            Schroeder 1988, Naval Oceans Systems
                        not known whether whales avoid these             Center, Kaneohe, HI, pers. commun.).
                        waters due to turbidity or to chemical           The long-term effects of low concen-
                        pollutants from upland sources.                  trations of compounds such as tribu-
                                                                         tyltin on larger vertebrates such as
                                                                         whales is not known.
                        IMPACTS

                        Coastal OlvelopmInt                              Vessel Traffic

                              Known humpback whale habitat may                In Hawaii, humpback whal'es are
                        be affected by harbor and boat ramp              subject to physical and acoustic dis-
                        construction, nearshore resort devel-@           turbance by large numbers of recrea-
                        opment,    alternative energy        devel-      tional boaters as well as an increas-
                        opment, wastewater discharge and out-            ing number of whale-@watching vessels
                        fall   construction,    permanent vessel         as they engage in water skiing,       para-
                        moorings,    agricultural     runoff,    and     sailing, jet skiing, high speed plea-
                        recreational     water sports.       Water-      sure cruising, and whale watching. At
                        dependent construction activities by             present, commercial shipping and dom-
                        themselves result in highly visible              mercial fishing vessel traffic do not
                        primary impacts such as           blasting,      appear to pose a significant problem
                        dredging, and filling which may result           in Hawaiian waters because o7 -the
                        in displacement, injury, and mortal-             location of their activities,       and/or
                        ity.    However, these adverse impacts           their-routes and behavior.
                        can be reduced or eliminated . through
                        seasonal timing or construction design               The Navy occasionally conducts
                        modifications, and the actual physical           vessel firing exercises off Kahoolawe
                        loss of habitat is small in comparison           Island.   Ouring'a test to determine
                        to the total available.        It is the         in-water source levels of naval        gun.
                        secondary and tertiary impacts associ-           fire and humpback whale vocalizations,
                        ated with the initial habitat modifi-            it was found that ambient noise was
                        cation, such as increased vessel traf-           dominated by humpback whale phonations
                        fic associated with harbors, ramps,              (Friedl and Thompson 1981).
                        moorings and hotels, that may likely
                        have irreversible consequences on the                Normal whale behavior (the ener-
                        distribution and reproductive success            getic and often acrobatic behavior
                        of humpback whales.                              associated with pod formation           and
                                                                         disass'ociation and competitive activi-
                             Water quality degradation result-           ties, such as breaching and peduncle
                        ing from increased sewage effluent,              or fluke slapping), in some instances,
                        surface runoff (agricultural,        indus-      is indistinguishable from reactions to
                        trial, and residential), and the lea-            vessels and makes the-effects of ves-@
                        ching of vessel      hull     anti-fouling       sel traffic in Hawaii difficult to
                        compounds (e.g. tributyltin) may also            evaluate.   Recent studies, however,
                        adversely affect the distribution and            have provided some insight into this
                        physical well-being of humpback whales           problem.   Bauer and Herman         (1986)
                        using   nearshore waters.        Untreated       found humpback whales off Maui to
                        sewage dumped from vessel           holding      significantly alter behaviors in res-
                        tanks and pumped from municipal        out-      ponse to vessels within 1,000 m.        In-
                        falls during periods of overflow, such           creases in dive times and some threat
                        as storms and plant malfunctions, are            behaviors. were observed.       Short-term;
                        sources of many infectious agents,               impacts of reduced fitness resulting
                        viral, bacterial, and mycotic,           to      from  excessive energy        expenditure

                  Final Environmental Impact Statement
                  and Management Plan                                                                          Page 415

                      Appendix G: Species Profile                                          Hawaiian Islands Humpback Whale
                                                                                                   National Marine Sanctuarv

                           during the nonfeeding season             were          Other recent studies also strong.
                           suggested. They postulated that these             ly indicate that humpback whales may
                           probable short-term impacts are linked            be abandoning coastal habitat because
                           to the potential for long-term nega-              of human activities.        Herman,    Fore-
                           tive effects such as displacement,                stell, and Antincia (1980) noted a
                           reduced     reproductive success,         and     preference of humpback whales             for
                           reduced recruitment.                              subregions removed from areas of dense
                                                                             human habitation or activity.        On the
                                  Glockner-Ferrari     and      Ferrari      basis of aerial surveys, they observed
                           (1985, 1987) note a continuing decline            an absence of whales within S- to 6-km
                           in the percentage of cow-calf pairs               of Lahaina, Maui,and suggested that
                           sighted in nearshore waters off west              whales avoided the area because of
                           Maui.    In their early studies, they             human activities, primarily          recre-
                           found 80.3% of the mot   'hers and' calves        ational boat traffic.       Forestell (in
                           observed were within. the 10-fathom               press) also noted a lack of sightings
                           (18 m) isobath. However, this percen-             in the Lahaina area relative to other
                           tage has steadily decreased, with- a              areas off Maui. In addition, he found
                           low in 1983 of 17.2% within the 10-               virtually no whales during           aerial
                           fathom (18 m).isobath. In. 1984 and               surveys within a 5- to 6-km radius
                           1985, the percentages again declined              around the new small boat ramp and
                           to 14.1 and 5.7%, respectively (Glock-            protective breakwater at Keawakapu,
                           ner-Ferrari and Ferrari 1987, Table               Maui. He hypothesizes that whales, in
                           2). They attribute fewer whales being.            fact, may be in these aftaf, but
                           observed in nearshore waters to human             be-cause of increased vessel traffic,'
                           activities, such as direct           inter-       they engage in behaviors that make
                           actions between whales and vessels,               them less obvious, such*as remaining
                           and displacement by high-speed vessel             submerged for longer periods, or that
                           operations.    They also believe that             more noticeable large pods-of, whales
                           habitat is being lost through the                 or cow-calf pairs may          selectively
                           effects of pollution and report a                 avoid the area. Single animals, which
                           decrease in water quality resulting               typically remain underwater for Tonger
                           from agricultural runoff from coastal             periods, may be present in these areas
                           development and sewage output.                    yet be missed by aerial surveys.

                                      Table 2. Percentage of mothers and calves sighted in nearshore
                                       waters off West Maui (from Glockner-Ferrari and Ferrari 1987).

                                          Ocean Hours      Mother-Calf       Mother-Calf Sets-        Mother-Calf
                                        of Observation       Sightings Within 0.4 km'of Shore Sightings
                               Year             (No.)           (No.)               (No.)                   N

                               1977             174             39                   25                  64.1
                               1978             ISO             48                   42                  87.5
                               1979             134             47                   37                  78.7
                               1980             291             53'                  15                  28.3
                               1981             228             52                   17                  32.7
                               1982             251             69                   is                  26.1
                               1983             233             63                   11                  17.5
                               1984             283             78                   11                  14.1
                               198t             282             as                     5                 5.7

                      Page 416                                                          Final Environmental Impact Statement
                                                                                                         and Management Plan

                 Hawaiian Islands Humpback Whale                                       Appendix G: Species Profile
                 National Marine Sanctuary

                            Tinney (1988) lists and describes       18.   Aircraft overflights
                       activities potentially affecting hump-       19.   Marine construction
                       back whales in coastal waters          of
                       Hawaii. He states that these activi-              The effect of acoustic interfer-
                       ties, occurring often enough,     densely    ence on *singing' and other related
                       enough, or long enough in or near            behaviors and its eventual impact on
                       areas traditionall.y used by humpback        reproductive activities are not well
                       whales may cause them to abandon or          known.  OSingers," however, have been
                       avoid the areas-and possibly result in       observed to stop singing when high
                       increased mortality and/or decreased         speed or very loud vessels transited
                       reproduction.                                nearby (Bauer and Herman 1986).

                            Specific activities (from Tinney            At present, with the exception of
                       1988), not in any particular order of        the potential loss of summer foraging
                       importance, which potentially affect         habitat, the continued loss and degra-
                       humpback whales Include the following:       dation of known preferred winter habi-
                                                                    tat in Hawaiian waters, particularly
                       1.   Swimming, snorkeling, and diving        that Of mothers and calves, probably
                       2.   Surfing                                 constitutes one of the major threats to
                       3.   Wind and motorized surfing              the recovery of the Hawaiian popula-
                       4.   Waterskiing                             tion of humpback whales. In order to
                       S.   Kayaking                                better gage    the prospects for and
                       6.   Recreational fishing                    encourage recovery of this endangered
                       7.   Commercial fishing                      species in Hawaii,   habitat require-
                       8.   Sailing                                 ments and reproductive parameterf- fbr
                       9.   Jetskiing                               humpback whales in Hawaiian waters
                       10.  Addictor boating (rental mini-          need to be more. precisely defined.
                             hydroplanes)                           Further, a cost-effective and accurate
                       11.  Parasailing                             means of determining populatJon trends
                       12.  Whale watching                          and a method of assessing the status
                       13.  Scientific research                     of humpba,.k whales in Hawaiian waters
                       14.  Marine transport                        must be developed and initiated so
                       15.  Water taxis ,                           that additional protective measures
                       16.  Surface warship operations              and'recovery actions can be implemen-
                       17.  Submarine operations                    ted should they be required.

                                                               17

                Final Environmental Impact Statement                                                   Page 417
                and Management Plan

                     Appendix G: Species Profile                                             Hawaiian Islands Humpback Whale
                                                                                                     National Marine Sanctuary

                                                                      LITERATURE CITED

                                  Baker, C.S.    1985.     The population         lation structure of humpback whales
                                  structure and social organization of            (Megaptera novaeangliae) in the cen-
                                  humpback whales  (Megaptera  novae-         tral and eastern North Pacific. Mar.
                                  angliae) in the central and eastern             Ecol. Prog. Ser. 31:105-119.
                                  North Pacific. Ph.D. Thesis, Univer-
                                  sity of Hawaii, Honolulu.                    Baker, C.S.,   L.M. Herman,     and W.S.
                                                                                  Stifel.     1981. Agonistic behavior
                                  Baker, C.S., and L.M.       Herman.    1981.     in humpback whales: Evidence for
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                                                                                  Mammals, San Francisco, CA, Dec. 14-
                                  Baker, C.S., and L.M     Herman. 1984.          18, 1981, p. 7.
                                  Aggressive behavior between humpback
                                  whales    (Megaptera novaeangliae)        Baker, C.S., A. Perry,  and       L.M.
                                  wintering in Hawaiian waters. Can.             Herman. In press.        Reproductive
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                                                                                  in the North Pacific. Mar. Ecol.
                                  Baker, C.S., and L.M. Herman. 1985.      Prog. Ser.
                                  Whales that go to extremes.   Nat.
                                  Hist. Mag. 10:52-61.                        Bauer, G.B., and L.M. Herman. 1986.
                                                                                  Effects of vessel traffic on the
                                  Baker, C.S., and L.M. Herman. 1987.             behavior    of humpback whales in
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                                                                              Chittleborough,   R.G.    1958.       The
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                                  Hall, J.M. Reinke, and J. Ostman.           Clapham,  P.J., and C.A. Mayo.    1987.
                                  1986. Migratory movement and popu-              The attainment of sexual maturity in

    18

                       Page 418                                                Final Environmental Impact Statement
                                                                                     and Management Plan

                  Hawaiian Is 'lands Humpback Whale                                           Appendix G: Species Profile
                  National Marine Sanctuary

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                           Mam. Sci. 3(3):279-283.                          Auk. 100:214.
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                           abundance and behavior of Hawaiian
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                           angliae (Borowski). Ph.D. Thesis.                Measuring acoustic       noise     around
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                           Cruz.   147 pp.                                  732.    Naval Oceans Systems Center,
                                                                            Hawaii Laboratory, Kailua, Hawaii.
                        Darling, J.D.,      and D.J. McSweeney.             15 pp.
                           198'5.   Observations on the migra-
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                                                                         Glockner7Ferrari, D.A., ind M.J. Fer-
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                       Dawbin,     W.H.     1966. The       seasonal        Lab., Seattle, WA. 32 pp.
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                                                                            1977-79. Pages 223-258 in R. Payne
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                           1983.    Incidental     ingestion      of

                                                                     19

                 Final Environmental Impact Statement                                                          Page 419
                 and Management Plan

                    Appendix G    Species Profile                                        Hawaiian Islands Humpback Whale
                                                                                                 National Marine Sanctuary

                              Herman, L.M., P.M. Forestell, and R.C.           for Cold.Ocean Sci., Mem. Univ.-New-
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                              -11(3):8-15.
                                                                            Lien, J., S. Stanforth, L. Fawcett, R.
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                              Jurasz, C.M., and V. Jurasz.        1979.        tribution. No. 43.          Newfoundland
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                                                                               Clark.    1985. Whale and shark en-
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                                                                               63:762-772.

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                     Page 420                                                          1--inal Environmental Impact Statement
                                                                                                       and Management Plan

                  Hawaiian Islands Humpback Whale                                                    Appendix G: Species Profile
                  National Marine Sanctuary

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                                                                          21

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                  and Management Plan

                          Appendix G; Species Profile                                         Hawaiian Islands Humpback Whale
                                                                                                      National Marine Sanctuary

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                          .Plenum, New York and London.
                                                                          Whitehead, H., and M.J. Moore. 1982.
                          Tinney,  R.T.      1988.       Review     of        Distribution and movements of West
                          -information bearing.upon the conser-               Indian humpback whales in winter.
                          vation and protection of humpback                   Can. J. Zool. 60(9):2203-2211.
                          whales in Hawaii. Marine             Mammal
                          Commission     Contract     Report      No.     Winn, H.E., R.K. Edel, and A.G. Taru-
                          1943309689-0. * Accession No.        P888-          ski.  1975.   Population estimate of
                          1195359, NTIS, Sprin�fiel.d, VA.                    the   humpback     whale        (Mecaptera
                                                                              novaeanqlLu) in the - West Indies by
                          Tyack, P. 1981., Interact i ons-'between            visual and acoustic techniques. J.
                          singing Hawaiian humpback whales and                Fish. Res. Board.Can. 32:499-506.
                          conspecifics nearby. Behav. Ecol.
                          Sociobiol. 8:105-116.                          Wolman, A.A., and C.M. Jurasz. 1977.
                                                                              Humpback whales in' Hawaii:         Vessel
                          Tyack, P. 1983. Differential respon-                census,   1976. Mar.        Fish.     Rev.
                          ses of humpback whales, Mecaptera                   39(7):1-5.
                          novaeanaliae, to playback of song or

                                                                      22

                    Page 422                                                              Final Environmental Impact Statement
                                                                                                          and Management Plan

                   Hawaiian Islands Humpback Whale                    Appendix H: Background to the Proposed Hawaii Humpback
                   National Marine Sanctuary                                            Whale National Marine Sanctuary of 1984
                                                               Appendix H

                    BACKGROUND To THE PRoposED HA wAii HumPBA                         cK WHALE NATIONAL MARINE
                                                           SANCTUARY OF 1984

                           In the late 1970s some members of the scientific community began to wonder whether
                   increasing human activities might be having adverse effects on humpback whales that inhabit
                   Hawaiian waters. The Marine Mammal Commission, concerned about possible harassment of the
                   whales owing to the frequent interaction of whales with human activities, sponsored a workshop to
                   deal with this issue in 1977. In December of that year, James Hudnall, an independent whale
                   researcher from California, submitted -a formal proposal to the National Marine Sanctuary Program
                   to establish a Hawaiian Humpback Whale National Marine Sanctuary. This action initiated the
                   NOAA National Marine Sanctuary Program (NMSP) process in investigating and nominating the
                   site.

                           At the same time in a local effort, the then Maui Mayor, Elmer Cravalho, designated
                   December to May as "Whale Protection Months" and established a Maui County Whale Reserve in
                   the. waters lying landward of the 10-fathom isobath off Maui. Although National Marine Fisheries
                   Service (NMFS) sent two national agents to monitor the situation and enforce existing regulations,
                   no regulations accompanied the designation of the reserve and no administration or authority was
                   established to adrriinister or.support the reserve.

                           In June 1978, NOAA's National Marine Fisheries Service (NMFS) held two public
                   hearings in Hawaii to discuss the need to restrict human activities in principal humpback calving
                   and assembly areas. A first step in exercising control of proposed detrimental activities was taken
                   in Janu@ay 1979, when NMFS published "Notice of Interpretation for Taking. by Harassment" (FR
                   44[33]: 1114). This notice, the first, "Interpretation" of harassment under the. NEMPA and the
                   ESA, listed guidelines that defined harassment, designated calving and breeding grounds where
                   special guidelines were applicable, and gave NMFS springboard for enforcement and habitat
                   protection. At the same time, efforts were made to educate the public through the publication and
                   distribution of a pamphlet describing the humpback's behavior and endangered status, together
                   with guidelines for approaching whales.

                           By May 1979, Federal marine sanctuary officials from NOAA's office of Ocean and
                   Coastal Zone Management (OCZrvD were reviewing Hawaiian whale protection proposals vis a vis
                   comments solicited from various agency spokesmen, spepial interest groups, and private citizens.
                   On October 31, a nomination for establishing a humpback whale national marine sanctuary in
                   Hawaiian waters was included on the List of Recommended Areas (LAR) [44 FR 62552]. In
                   December, NOAA convened a panel of experts, resource managers, local, State, and Federal
                   officials in Hawaii to discuss the endangered Hawaiian humpback whale population, the need for
                   additional research, education, possible regulatory measures, and management for assuring the
                   long-term protection of the these whales in their wintering waters.

                      The "Hawaiian Humpback Whale Sanctuary Workshop Committee Report" described three
                   management alternatives including: (1) status quo; (2) critical habitat designation as provided by the
                   ESA; or (3) marine sanctuary designation under Title III of the Marine Protection, Research and
                   Sanctuan'es Act of 1972. Of the three alternatives, the committee concluded that designation of a
                   marine sanctuary was the "most certain route to continuing protection of the humpback whale in
                   Hawaiian waters." In October 1980, the National Marine Sanctuary Program held public
                   information meetings on the islands of Maui and Oahu to present the findings and
                   recommendations of the workshop and discuss.the feasibility and desirability of proceeding
                   forward with the sanctuary nomination.

                   Final Environmental Impact Statement                                                                Page 423
                   and Management Plaa

                    Appendix H: Background to the Proposed Hawaii Humpback              Hawaiian Islands Humpback Whale
                    Whale National Marine Sanctuary of 1984                                    National Marine Sanctuary

                            In May 1981,,NOAA held discussions with the Hawaii State Department of Planning and
                    Economic Development (DPED), Department of Land and Natural Resources (DLNR), Department
                    of Transportation (DOT), the Marine Affairs Coordinator's Office, and the Office of the Govemor
                    in order to discuss the outcome of the public meetings and draft an issue paper on the Hawaii
                    marine sanctuary. On March 17, 1982, NOAA declared the proposed Hawaiian Humpback Whale
                    Na:donal Marine Sanctuary an Active Candidate [47 FR 1 .1544]. The "Proposed Hawai'i
                    Humpback Whale National Marine Sanctuary Issue Paper" was released in April followed by a
                    series of Hawaii public scoping meetings.

                            Governor George Ariyoshi appointed a neutral 15-mernber advisory group to assist the
                    State in its evaluation of the proposal and to provide direct input into the development of the
                    Ew-iironmental Impact Statement and Management Plan. In January, 1984, NOAA released the
                    Draft Environmental Impact Statement and Draft Management Plan (OCRM 1983) and held public
                    heaxings during February. Although the proposed sanctuary met with strong opposition at the
                    public hearings, NOAA apparently received enough written support to continue with the
                    designation process.

                            In response to NOAA's continuation of the project, special interest groups rallied the
                    Governor to withdraw State waters from sanctuary designation. In July 1984, in response to
                    NCIAA's request of the State's position regarding development of the Final Environmental Impact
                    Statement and Management Plan, Governor Ariyoshi wrote to NOAA that "the state does intend to
                    withdraw its waters" from the proposed sanctuary area should the proposal be passed by the U.S.
                    Department of Commerce with Presidential approval. The Final Environmental Impact Statement
                    and Management Plan were never sent to the Governor, and the Federal Office of Coastal Zone
                    Management (OCZM) retained the option to renew the proposal at a later date or the possibility of
                    establishing a sanctuary outside statewaters.

                    Page 424,                                                       Final Environmental Impact Statement
                                                                                                  and Management Plan

                    Hawaiian Islands Humpback Whale                                  Appendix 1: Whale Education Programs in Hawaii
                    National Marine Sanctuary
                                                                    Appendix I

                                                WHALE ED ucA TioN PR oGpAms iN HA wAii

                    Bishop Museum Education Program
                    1525 Bernice Street
                    P.O. Box 19000A
                    Honolulu, HI 96817
                    Activities: Thar She Blows     Short tour through the Bishop Museum's whaling exhibits and introduction to
                    sperm whale skeleton (K-3).

                    Earthtrust
                    25 Kaneohe Bay Drive
                    Kailua, HI 96734
                    Activities: Earthtrust provides information on the status of pirate whaling. Efforts include: market analysis of
                    whale products using DNA techniques, newsletter, adopt-a-whale and dolphin programs.

                    Department of Education
                    189 Lunalilio Home Road, 2nd Floor
                    Honolulu, HI. 96825-2099
                    Activities: Whale education is featured via science curriculum (K-6)

                    Department of Land and Natural Resources, Division of Aquatic Resources
                    1151 Punchbowl St.
                    Room 330
                    Honolulu, HI. 96813
                    Activities: Fishing education classes, in-school aquatic education and public outreach including community
                    presentations, booklets, Pamphlets, posters, videos and television commercials.

                    Hawaiian Islands Humpback Whale National Marine Sanctuary
                    726 S. Kihei Road        or         300 Ala M.oana Blvd. #5350
                    Kihei, HI 96753                     Honolulu, HI 96850

                    Activities: Public outreach including community presentations, classroom lectures, and participation in whale-
                    related community events.
                    Information available: Whale-watch brochure and other information materials.

                    Hawaii Whale Research Foundation
                    P.O. Box 1269
                    Lahaina, HI 96767
                    Activities: Research, education, and outreach programs and humpback whales and other marine mammals inhabiting
                    the Hawaiian Islands.

                    Hawaii Wildlife Fund
                    P.O. Box 5361
                    Lahaina, HI 96761
                    Activities: Whale watch and coral reef naturalist programs. Conduct education programs for schools and the general
                    community.

                    Final Environmental Impact Statement                                                                      Page 425
                    and Management Plan

                        Appendix I: Whale Education Programs in Hawaii                                    Hawaiian Islands Humpback Whale
                                                                                                                  National Marine Sanctuarv

                        Kilauea Point National Wildlife Refuge
                        P.O. Box 87
                        Kilauea, Kauai, HI 96754
                        Activities: The Kilauea Point National Wildlife Refuge staff, in cooperation with Kilauea Point National History
                        Association, operates,a public information center at the refuge and develops publications on conservation issues
                        which is available to schools and the general public. Publications: Kilauea Point Natural History Association.
                        VW,!ale - What is a Whale? (Hawaii Nature Focus - Nature Studies for Children - No 1.)

                        Lahaina Whaling Museum
                        865 Front Street
                        Lahaina, Hawaii 96761
                        Activities: Offers an array of memorabilia and whaling artifacts such as models of whaling shLips, scrimshaws,
                        ships' logs and harpoons.,

                        National Marine Fisheries Service, Pacific Area Office
                        2570 Dole St.
                        Honolulu, HI 96822-2396
                        Information available: brochures, posters, scientific papers.

                        Ocean Mammal Institute
                        P.O. Box 14422
                        Reading, PA 19612
                        Activities: Volunteer research internship program affiliated with Albright College, PA.

                        Pacific Whale Foundation
                        101 N. Kihei Rd.
                        Kihei, Maui, HI 96753
                        Activities: The Pacific Whale Foundation is a non-profit research, education, and conservation organization whose
                        puipose is to educate the public about marine animals and the ocean environment from a scientific perspective.
                        Public Programs include, whales and Friends-lecture series, whale day/earth day celebration, whalewatching, adopt-a-
                        whale programs, outreach efforis in a Ocean van and at schools.

                        Sea Life Park Hawaii/ SLP Marine Research and Education
                        MaLkapuu Point
                        Waimanalo, HI 96795
                        Activities: Humpback Whale Awareness Month. Annual conservation program celebrating the humpback whale's
                        annual return to Hawaii with lectures, marine artist youth competition and exhibit, @and daily mini-lectures.
                        Information available: whale brochures, whaling history museum, marine mammal exhibits, and presentations.
                        Educational Department has special classroom activities on humpback whales.
                                          Source: Hawaii Environmental Education Association. 1993. Environmental Education Resource
                                          Guide. Honolulu, Hawaii Environmental Education Association.

                        University of Hawaii
                        School of Ocean Earth Sciences Technology
                        Hawaii Institute of Marine Biology
                        P.O. Box 1346 -
                        Kaneohe, HI 96744
                        Activities: The Hawaii Institute of Marine Biology (HIMB) is a research institute of-the University of Hawaii that
                        fosters research and education in marine biological sciences. HIMB maintains a collection of books, scientific
                        reports and dissertations.

                        Marine Options Program
                        University of Hawaii at Man,oa
                        1000 Pope Road, Marine Sciences Bldg., Rm. 229

                        Page 426                                                                      Final Environmental Impact Statement
                                                                                                                       and Management Plan

                    Hawaiian Islands Humpback Whale                              Appendix I: Whale Education Programs in Hawaii
                    National Marine Sanctuary

                    Honolulu, HI 96822
                    Activities: Student internship opportunities for graduate and undergraduate students.

                    Sea Grant Extension Service
                    University of Hawaii at Manoa
                    1000 Pope Road, MSB 226
                    Honolulu, HI 96822
                    Activities: The University of Hawaii Sea Grant Extension Service is a public outreach and information/technology
                    program that supports research, education, and extension efforts that encourage sound management of the ocean's
                    resources.

                    Kewalo Basin Marine Mammal Laboratory
                    University of Hawaii at Manoa
                    Kewalo Basin Marine Mammal Laboratory
                    1129 Ala Moana Blvd.
                    Honolulu, HI 96814
                    Activities: Earthwatch Program provides hands-on experience for persons interested in research on captive dolphins.
                    Student internship programs and undergraduate directed studies program.

                    Waikiki Aquarium
                    Education Department
                    2777 Kalakaua Avenue
                    Honolulu, HI 96815
                    Information available: Educational department handles curriculum activities (K-6), incorporating theentire Hawaiian
                    marine ecosystem. Brochures, handout materials, exhibits, and outreach programs are also available.

                    Whale Center of the Pacific
                    2435 Kaanapali Parkway, #H-16
                    Kaanapali, Lahaina, HI 96761
                    Activities: Educational outreach, museum exhibits, handouts and environmental workshop, including Whale
                    Discovery Day.

                    Whales Alive
                    P,O. Box 2058
                    Kihei, HI. 96753
                    Activities: Research, educational outreach, handout materials, and slide images. Sponsors annual research
                    conference: In Celebration of Whales.

                    Final Environmental Impact Statement                                                                 Page 427
                    and Management Plan

                         Appendix I: Whale Education Programs in Hawaii                               Hawaiian Islands Humpback Whale
                                                                                                              National Marine Sanctuary

                                                     TIUS PAGE HInNTIONALLY LEFr BLANK

                         Page 428                                                                 Final Environmental Impact Statement
                                                                                                                  and Management Plan

                     Hawaiian Islands Humpback Whale                                          Appendix J: References and Bibliography
                     National Marine Sanctuary
                                                                    Appendix J

                                                   REFERENCES AND BIBLIOGRAPHY

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                              Del Coco, Costa Rica, suggesting geographical overlap of Northern and Southern hemisphere populations.
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                     Agegian, C.R., and F.T. Mackenzie. 1989. Calcareous organisms and sediment mineralogy on a mid-depth bank in
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                              Islands Development Program, East-West Center, Honolulu.
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                     Antonius, A. 1985. Coral diseases in the Indo-Pacific: a first record. Mar. Ecol. 6:197-218.
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                     Baker, C.S., L.M. Herman, B.G. Bays, and W.S. Stifel. 1982. The Impact of Vessel Traffic on the Behavior of,
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                     Baker, C.S., L.M. Herman, B.G. Bays, and G.B. Bauer. 1983. The Impact of Vessel Traffic on the Behavior or
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                     Baker, C.S. 1985. 77te Population Structure and Social Organization of Humpback Whales (Megaptera
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                     Baker, C.S., L.M. Herman, A. Perry, W.S. Lawton, I.M. Straley, A.A. Wolman, G.D. Kaufman, H.E. Winn, J.D.
                              Hall, J.M. Reinke, and J. Ostman. 1986. Migratory movement and population struciure of humpback
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                              Nature 344(6263):238-240.

                     Final Environmental Impact Statement                                                                     Page 429
                     and Management Plan

                         Appendix J: References and Bibliography                                          Hawaiian Islands Humpback Whale
                                                                                                                  National Marine Sanctuary

                         Baker, C. S., D. A. Gilbert, M. T. Weinrich, R. Lambertsen, J. Calambokidis, B. McArdle, G. K. Chambers, and
                                  S. J. O'Brien. 1993. Population characteristics of DNA fingerprints in humpback whales (Megaptera
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                                  Calambokidis, 0. Vasquez, and S. R. Palumbi. 1994. Hierarchical structure of mitochondrial DNA aene
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                         B,alazs, G.H. 1978. Terrestrial Critical Habitat for Sea Turtles Under United States Jurisdiction in the Pacific
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                         B,alazs, G.H. 1980. Synopsis of Biological Data on the Green Turtle in the Hawaiian Islands. NOAA Technical
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                         Balazs, G.H. 1984. History of Sea Turtles at Polihua Beach, Northern Lanai. National Marine Fisheries Service
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                                  Interventions. Unpublished doctoral dissertaion, University of Hawaii at Manoa, Honolulu, Hawaii.
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                         Braham, H.W. 1984. The Statuts of endangered whales: an overview. Mar. Fish. Rev. 46(4):2-6.
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                         B@rock, V.E., and T.C. Chamberlain. 1968. A geological and ecological reconnaissance off western Oahu, Hawaii,
                                  principally by means of the research'submarine "Asherah." Pac. Sci. 22:373-394.
                         Brock, R.E. 1979. An experimental study on the effects of grazing by parrotfishes and role of refuges in benthic
                                  community strucfiire. Mar. Biol. 51:381-388.
                         Brock, R.E. - 1986. An inventory of the nearshore marine communitiesfironting the Kaanapali Airstrip, Maui.
                                  Prepared for AECOS, Inc., Kail" Hawaii.
                         Brock, R.E. 1987. Biological reconnaissance of two sites in the Lahaina@ Maui area proposedfor possible marina
                                  development. Prepared for AECOS, Inc., Kailua, Hawaii.
                         Brock, R.E., and J.E. Norris. 1987. Biological assessment of sites proposedfor habitat enhancement offshore of
                                  Honolulu Harbor, Oahu, Mala Wharf, Maui, and Kailua-Kona, Hawaii. Prepared for AECOS, Inc., Kailua,
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                         Brock, R.E. 1988a. Assessment of the resident green sea turtle. population in the vicinity of the Launiupoko State
                                  Park, West Maui, Hawaii. Prepared for Sea Engineering, Inc., Makai Research Pier, Waimanalo, Hawaii.
                         Brock, R.E. 1988b. Biological assessment of the Launiupoko, West Maui area for potential marina development.
                                  Prepared for AECOS, Inc., Kailuii, Hawaii.
                         Brock, R.E. 1989. Predevelopment reconnaissance of the marine macrobiota and water quality conditions fronting
                                  the Lahaina Master Planned project, Lahaina@ Maui. Prepared for PBR Hawaii, Inc., Honolulu, Hawaii.
                         Brock, R.E., and J.E. Norris. 1989. An analysis of the efficacy of four artificial reef designs in tropical waters.
                                  Bull. Mar. Sci. 44:934-941.
                         Brock, R.E. 1990a. Biological reconnaissance of the marine resources in the watersftonting West'Beach, Oahu.
                                  Final report. Prepared for Of Consultants, Inc., Waimanalo, Hawaii. EAC Rept. No. 90-09'.

                         Page 430                                                                     Final Environmental Impact Statement
                                                                                                                       and Management Plan

                     Hawaiian Islands Humpback Whale                                            Appendix J: References and Biblioggaphy
                     National Marine Sanctuary

                     Brock, R.E. 1990b. Report addendum. Predevelopment water quality conditions fronting the Lahaina Master
                              Planned Project, Lahaina, Mauifollowing heavy rainfall. Prepared for PBR Hawaii, Inc., Honolulu,
                              Hawaii.
                     Brock, R.E. 1992c. A quantitative assessment of the marine communities and water quality along the Kaanapali,
                              Maui coastline for the Puukolii and North Beach developments. Prepared for AMFAC/JMB Hawaii, Inc.,
                              Lahaina, Hawaii. EAC Rept. No. 92-14.
                     .Brock, R.E. 1992d. A quantitative assessment of the marine communities and water quality in an area fi-onting the
                              proposed Hulopoe-Manele Bay Golf Course development. Monitoring program report. Prepared for Lanai
                              Company, Inc., Honolulu, Hawaii. EAC Rept. No.'92-13.
                     Brock R.E. 1992e. An analysis of benthic communities in the zone of mixing for Honolulu and Kahului electrical
                              generation facilities. Prepared for Hawaiian Electric Co., Honolulu, Hawaii. EAC Rept. No. 92-02.
                     Brock, R.E. 1992f. A quantitative assessment of the marine communities and water quality along the Kaanapali,
                              Maui coastline for the Puukolii and North Beach developments. Prepared for Amfac/JMB Hawaii, Inc.,
                              Lahaina, Maui. EAC Rept. No. 92-14.
                     Brock, R.E. 1992a. A quantitative assessment of the marine communities and water quality in an areafronting the
                              proposed Hokukano, development. Prepared for The Anderson Companies, Scottsdale, Arizona. EAC Rept.
                              No. 92-08.
                     Brock, R.E. 1992b. Synopsis of change over a 57-month period of observation on benthic communities adjacent to
                              the 40-inch coldwater pipe, Keahole Point, Hawaii. Prepared for Natural Energy Laboratory of Hawaii
                              Authority, Kailua-Kona, Hawaii. EAC Rept. No. 92- 10.
                     Brock, R.E. 1993a. Third semi-annual monitoring report on the status of the marine fish communities in the
                              watersfronting the Mauna Lani Resort, South Kohala, Hawaii. Prepared for Marine Research Consultants,
                              Honolulu, Hawaii. EAC Rept No. 93-05.
                     Brock, R.E. 1993b. Cooperative environmental monitoring programfor the Natural Energy Laborator         'y- Authorit iN
                              surveyfor anchialine and marinefish resources, May 1993 survey. Prepared for Natural Energ Laborato
                                                                                                                            my            ry
                              of Hawaii Authority, Kailua-Kona, Hawaii. EAC Rept. No. 93-06.
                     Brock, R.E. 1993c. Marine communities and water quality in an areafronting the Hulopoe-Manele Bay Golf
                              Course development - June 1993field effort monitoring program report. Prepared for Lanai Company,
                              Inc., Honolulu, Hawaii. EAC Rept. No. 93-07.
                     Brock, R.E. 1993d. A quantitative assessment of marine communities and water quality in an areaftonting the
                              proposed Hulopoe- Manele Bay Golf Course. Prepared for Lanai Company, Inc., Honolulu, Hawaii. EAC
                              Rept. No. 93-02.
                     Brock, R.E. 1993e. An analysis of benthic communities in the zone of mixing for Honolulu and Kahului electrical
                          . generation facilities. Prepared for Hawaiian Electric Co., Honolulu, Hawaii. EAC Rept. No. 93-01.
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                   Final Environmental Impact Statement                                                                   Page 445
                   and Management Plan

                       Appendix J: References and Bibliography                                      Hawaiian Islands Humpback Whale
                                                                                                            National Marine Sanctuary

                                                   TFUS PAGE =NTIONALLY LEFIBLANK

                       Page 446                                                                  Final* Environmental Impact Statement
                                                                                                                 and Management Plan

                   Hawaiian Islands Humpback Whale                                           Appendix K: Designation Document
                   National Marine Sanctuary                                                       and Implementing Regulations

                                                                Appendix K

                                 DEsiGNA TION DocUMENT AND.ImPLEmENTiNG REGULA TIONS

                            Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA) requires that the tenns
                   of designation include the geographic area included within the Sanctuary; the characteristics of the
                   area that give it conservation, recreational, ecological, historical, research, educational, or aesthetic
                   value; and the types of activities that will be subject to r;gulation @by the Secretary of Commerce to
                   protect these characteristics. The terms of designation may be modified only by the procedures
                   provided in section 304(a) of the NMSA. Thus, the terms of designation serve as a constitution
                   for the Sanctuary. In the case of this Congressionally designated Sanctuary, some terms of
                   designation (e.g., boundary) were contained in the Hawaiian Islands National Marine Sanctuary
                   Act, subject to modification by the Secretary.

                   A        Designation Document for the Hawaiian Islands Humpback Whale National
                            Marine Sanctuary

                            On November 4, 1992, President Bush signed into law the Hawaiian Islands National
                   Marine Sanctuary Act (HE*4MSA or Act; Subtitle C of the Oceans Act of 1992, Pub. L. No. 102-
                   587) which designated the Hawaiian - Islands Humpback Whale National Marine Sanctuary
                   (HIHWNMS or Sanctuary).

                            The purposes of the Sanctuary are to:
                            (1)     protect humpback whales and their Sanctuary 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 designation and Title III of
                                    the Marine Protection, Research and Sanctuaries Act, as amended ("MPRSA"; also
                                    cited as the "National Marine Sanctuaries Act" or "NMSA"), 16 U.S.C. �1431 et
                                    @Leq.; and
                            (4)     provide for the identification of marine resources and ecosystems of national
                                    significance for possible inclusion in the Sanctuary.

                   Article 1. Effect of Designation

                            Section 2306 of the HE4MSA requires the Secretary to develop and issue a comprehensive
                   management plan and implementing regulations to achieve the policy and purposes of the Act'.
                   consistent with the procedures of sections 303 and 304 of the NMSA. Section 304 of the NMSA
                   authorizes the issuance of such regulations as are necessary and reasonable to implement the
                   designation, including managing and protecting the conservation, recreational, ecological,
                   historical, research, educational and aesthetic resources and qualities of the Hawaiian Islands
                   Humpback Whale National Marine Sanctuary. Section 1 of Article IV of this Designation
                   Document lists activities subject to regulation which are those activities that may be regulated on the
                   effective date of -the regulations, or at some later date in order to implement the Sanctuary
                   designation.

                   Article II, Description of the Area
                            The HINMSA identified a Sanctuary boundary but authorized the Secretary to modify the
                   boundary as necessary to fulfill the purposes of the designation. The Sanctuary boundary was
                   modified by the -Secretary to encompass the submerged lands and waters off the coast of the
                   Hawaiian Islands extending seaward from the shoreline, cutting across the mouths of rivers and
                   streams,

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                      Appendix K: Designation Document                                       Hawaiian Islands Humpback Whale
                      and Implementing Regulations                                                  National Marine Sanctuary

                              (1)     to the 100-fathom (183 meter) isobath adjoining the islands of Maui, Molokai and
                                      Lanai, including Penguin Bank, but excluding the area within three nautical miles of
                                      the upper reaches of the wash of the waves on the shore of Kahoolawe Island;
                              (2)     to the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Nakalele
                                      Point, Maui, and southward;
                              (3)     to the 100-fathorn (183 meter) isobath around the island of Hawaii;
                              (4)     to the 100-fithom (183 meter) isobath from Kailiu Point eastward to Makahuena
                                      Point, Kauai; and
                              (5)     to the 100-fathom (183 meter) isobath from Puaena Point eastward to Mahie Point,
                                      and from the Ala Wai Canal eastward to Makapuu Point, Oahu.

                              Excluded from the Sanctuary boundary'are the following commercial ports and small boat
                      harbors:

                              Hawaii (Bitz Island)                           Kauai
                              Hilo Harbor                                    Hanamaulu Bay
                              Honokohau Boat Harbor                          Nawiliwili Harbor
                              Kawaihae Boat Harbor and
                               Small Boat Basin                              Oahu
                              Keauhou Bay                                    Ala Wai Small Boat Basin

                              Maui                                           Molokai
                              Kahului Harbor                                 'Hale o Lono Harbor
                              Lahaina Boat Harbor                            Kaunakakai Harbor
                              Maalaea Boat Harbor

                              Lanai
                              Kaurnalapau Harbor
                              Manele Harbor

                              As specified at sections 2305(b) of the HE*4MSA, on January 1, 1996, the area of the
                      marine environment within 3 nautical miles of the upper reaches of the wash of the waves on the
                      shore of Kahoolawe -Island was to become part of the Sanctuary, unless during the 3 month period
                      immediately preceding January 1, 1996, the Secretary certified in writing to Congress that the area
                      was not suitable for inclusion in the Sanctuary. , The Secretary made such a certification in
                      December 1995. As such, the waters surrounding Kahoolawe are not included in the Sanctuary.
                      The HINMSA was amended in 1996 to allow the Kahoolawe Island Reserve Commission (KIRC)
                      to request inclusion of the marine waters three miles from Kahoolawe in the Sanctuary. Upon
                      receiving a request from the KIRC, 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,      if this occurs, the
                      inclusion or term will not take effect.

                      Article III. Characteristics of the AreA That Give It Particular Value

                              The Hawaiian Islands comprise an archipelago which consist of eight major islands and
                      124 minor islands, with a total land area of 6,423 square miles, and a general coastline of 750
                      miles. The central North Pacific stock of endangered humpback whales, the largest of the three
                      North Pacific stocks, estimated to be at approximately 10% of its pre-whaling abundance, uses the
                      waiters around the main Hawaiian Islands for reproductive activities including breeding, calving
                      and nursing. The warm, calm waters around the main Hawaiian Islands provide protective

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                  Hawaiian Islands Humpback Whale                                          Appendix K: Designation Document
                  National Marine Sanctuaiy                                                      and Implementing Regulations

                  environments required for such activities. Of the known wintering and summering areas in the
                  North Pacific used by humpback whales, the waters around the main Hawaiian Islands maintain
                  the largest seasonally-resident population; approximately 2,000 to 3,000 humpback whales use
                  these waters. The proximity to shore helps support an active commercial whalewatch industry,
                  which is supported annually by millions of visitors who either directly or indirectly enjoy the
                  Sanctuary waters.

                          In sections 2302(l) and (4) of the HINMSA, Congressional findings state that "many of
                  the diverse marine resources and ecosystems within the Western Pacific region are of national
                  significance," and "the marine environment adjacent to and between the Hawaiian Islands is a
                  diverse and unique subtropical marine ecosystem." In addition, Congress found that the Sanctuary'
                  could be expanded to include other marine resources of national significance. The waters around
                  the Hawaiian Islands contain 24 other species of cetaceans, the highly endangered Hawaiian monk
                  seal, three species of sea turtles and many other marine species endemic to this environment.
                  Coastal Hawaiian waters also support spectacular coral reef ecosystems which provide local people
                  with an abundant source of fish and are a popular dive destination for visitors worldwide. These
                  waters also contain a number of cultural/historical resources, including those reflecting native
                  Hawaiian traditions and uses.

                  Article IV. ScZe of Regulations

                          Section 1.     Activities Subject to Regulation. - In order to implement the Sanctuary
                  designation, the following activities are subject to regulation to the extent necessary and reasonable
                  to ensure the protection and management of the characteristics and - values of the Sanctuary
                  described above; primarily the protection and management of humpback whales and their
                  Sanctuary habitat. Regulation may include governing the method, location, and times of
                  conducting the. activity, and prohibition of the activity, after public notice and an opportunity to
                  comment. If a type of activity is not listed it may not be regulated, except on an emergency basis,
                  unless Section 1 of Article IV is amended. by the procedures provided in section 304(a) of the
                  NMSA. Such activities are:

                          a.       Approaching, or causing another vessel or object to approach, by any means a
                                   humpback whale in the Sanctuary;
                          b .      Flying over a humpback whale in the Sanctuary in any type of aircraft except when
                                   in any designated flight corridor for takeoff or landing from an airport or runway;
                          c .      Discharging or depositing, from within or fr        'om. beyond the boundary of the
                                   Sanctuary, any material or other matter into, or that enters or could enter the
                                   Sanctuary, without, or not in compliance with, the terms or conditions of a
                                   required, valid Federal or State permit, license, lease or other authorization;
                          d.       Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or
                                   constructing, placing or abandoning any structure, material 6r other matter on the
                                   seabed of the Sanctuary without, or not in compliance with, the terms or conditions
                                   of a required, valid Federal or State permit, license, lease or other authorization;
                          e.       Taking, removing, moving, catching, collecting, harvesting, feeding, injuring,
                                   destroying or causing the loss of, or attempting to take, remove, move, catch,
                                   collect, harvest, feed, injure, destroy or cause the loss of any humpback whale or
                                   humpback whale habitat;
                          f.       Possessing within the Sanctuary a humpback whale or part thereof regardless of
                                   where taken, removed, moved, caught, collected or harvested; and
                          9-       Interfering with, obstructing, delaying or preventing an investigation, search,
                                   seizure or disposition of seized property in connection with enforcernem of the
                                   HINMSA or NMSA or any regulation or perrnit isstied under the HINMSA or
                                   NMSA.

                  Final Environmental Impact Statement                                                               Page 449
                  and Management Plan

                        Appendix K: Designation Document                                            Hawaiian Islands Humpback Whale
                        !nd Implementing Regulations                                                        National Marine Sanctuary
                                Section 2. Emergencies. Where necessary to prevent or minimize the destruction of, loss
                        of., or injury to a Sanctuary resource or quality; or minimize the imminent risk of such destruction,
                        loss or injury, any activity, including those not listed in Section 1 of this Article, is subject to
                        immediate temporary regulation, including prohibition. If such a situation arises, the Director of
                        NOAA's Office of Ocean and Coastal Resource Management or his or her designee shall seek to
                        notify and consult to the extent practicable with any relevant Federal- -agency and the Governor of
                        the State of Hawaii.

                        Article V. Effect on Lgases, Permits, Licenses. and Rights

                                Pursuant to section 304(c)(1) of the NMSA, 16 U.S.C. �j434(c)(I), no valid lease,
                        permit, license, approval or other authorization issued by any Federal, State, or local authority of
                        competent jurisdiction, or any right of subsistence use or access, may be terminated by the
                        Secretary of Commerce, or his or her designee, as a result' of this designation, or as a result of any
                        Sanctuary regulation, if such authorization or right was in existence on the effective date of
                        Sanctuary designation (November 4, 1992).

                        Aiticle VI. Alteration of This Designation

                                The terms of designation, as defined under section 304(a) of the NMSA, may be modified
                        only by the procedures outlined in section 304(a) of the NMSA, including public hearings,
                        consultation with interested Feder4 State, - and county agencies,, review by the appropriate
                        Congressional committees, and review' and non-objection by the Governor of the State of Hawaii,
                        and approval by the Secretary of Commerce, or his or her designee.
                        H-awaiian Islands Hu=back Whale National Marine Sanctuary Boundary Coordinates
                        Appendix A to subpart Q, part 922, 15 CFR sets forth the precise boundary coordinates for the
                        Sanctuary.

                        Page 450                                                                Final Environmental impact Statement
                                                                                                                and Management Plan

                  Hawaiian Islands Humpback Whale                                      Appendix K: Designation Document
                  National Marine Sanctuary                                                  and Implementing Regulations

                  B       Implementing Regulations for the Hawaiian Islands Humpback Whale
                          National Marine Sanctuary

                  (Organizationally, these regulations are revised from the proposed regulations (proposed Part 945
                  of 15 CFR) in furtherance of the President's Regulatory Reinvention Initiative to, among other
                  things, consolidate duplicative regulatory provisions. Consequently, the new regulations for the
                  most part will appear in a new subpart Q to 15 CFR Part 922 (15 CFR k2.180 - 922.187) and in
                  Appendix A to subpart Q, and are applicable -only to the HIHWNMS. Existing � � 922.3, 922.4
                  and 922.46, subparts A and E of 15 CFR Part 922 are also applicable to the HIHVrNMS
                  (provisions of section 922.3 not applicable to the HIHWNMS regulations have been ondtted).
                  When the final regulations are published in the Federal Registe they will be revised to include
                  amendatory language to the Code of Federal Regulations and to eliminate sections reprinted here
                  that presently appear in the Code.of Federal Regulations.]

                  Subpart Q, Part 922 (Proposed Part 945)- Hawaiian Islands Humpback Whale
                  National Marine Sanctuary

                  Section

                  922.180      (Proposed 945. 1)         Purpose.
                  922.181      (Proposed 945.2)          Boundary.
                  922.3        (Proposed 945.3)          Definitions applicable to all national marine sanctuaries.
                  922.182      (Proposed 945.3)          Definitions applicable to the Hawaiian Islands Humpback
                                                         Whale National Marine Sanctuary only.
                  922.183      (Proposed 945.4)          Allowed activities.'
                  922.184      (Proposed 945.5)          Prohibited activities.
                  922.4        (Proposed 945.5(b))       Effect of National Marine Sanctuary Designation
                  922.185      (Proposed 945.6)          Emergency regulations.
                  922.186      (Proposed 945.7)          Penalties; appeals.
                  922.187      (Proposed 945.8)          Interagency cooperation.
                  922.46       (Proposed 945.9)          Response costs and damages.

                  A"endix A to subpart Q. part 922 - Hawaiian Islands Hu=back Whale National Marine
                  Sanctupa Bound= Coordinates

                          Authority: Sections 302,   303, 304, 305, 306, 307, 310, and 312 of the National Marine
                  Sanctuaries Act (NMSA) (16 U.S.C. 1431 _q &q.), and sections 2304, 2305, and 2306 of the
                  Hawaiian Islands National Marine Sanctuary Act (HINMSA), Pub. L. 102-587.

                  � 922.180 Purpose.

                          (a) The purpose of the regulations in this subpart is to implement, the designation of the
                  Hawaiian Islands Humpback Whale National Marine Sanctuary by regulating activities affecting
                  the resources of the Sanctuary or any of the qualities, values, or purposes for which the Sanctuary
                  was designated, in order to protect, preserve, and manage the conservation, ecological,
                  recreational, research, educational, historical, cultural, and aesthetic resources and qualities of the
                  area. The regulations are intended to supplement and complement existing regulatory authorities;
                  to facilitate to.the extent compatible with the primary objective of protecting the humpback whale
                  and its habitat, all public and private uses of the Sanctuary, including uses of Hawaiian natives
                  customarily and traditionally exercised for subsistence, cultural, and religious purposes, as well as
                  education, research, recreation, commercial and military activities; to reduce conflicts between
                  compatible uses; to maintain, restore, and enhance the humpback. whale and its habitat; to
                  contribute to the maintenance.of natural assemblages of humpback whales for future generations; to
                  provide a place for humpback whales'that are dependent on their Hawaiian Islands wintering

                  Final Environmental impact Statement                                                           Page 451
                  and Management Plan

                        Appendix K: Designation Document                                            Hawaiian Islands Humpback Whale
                        and Implementing Regulations                                                        National Marine Sanctuary

                        habitat for reproductive activities, including breeding, calving, and nursing, and for the long-term
                        survival of their species; and to achieve the other purposes and policies of the HINMSA and
                        N*,WSA.

                                (b) These regulations may be modified to fulfill the Secretary's responsibilities for the
                        Swictuary, including the provision of additional protections for humpback whales and their habitat,
                        if reasonably necessary, and the conservation and management of other marine resources, qualities
                        and ecosystems of the Sanctuary determined to be of national significance. The Secretary shall
                        Consult with the Governor of the State of Hawaii on any modification to the regulations contained
                        in this part. For any modification of the regulations contained in this part that would constitute a
                        change in a term of the designation, as contained in the Designation Document for the Sanctuary,
                        the Secretary shall follow the applicable requirements of section 304(a) of the National Marine
                        SC-'tnctuaries Act.

                        � 922.181 Boundary.

                                (a) Except for excluded areas described in paragraph (b) of this section, the Hawaiian
                        Islands Humpback Whale National Marine Sanctuary consists of-

                                The submerged lands and waters off the coast of the Hawaiian Islands seaward from the
                        shoreline, cutting across the mouths of rivers and streams, --

                                (1)      to the 100-fathom (183 meter) isobath adjoining the islands of Maui, Molokai and
                                         Lanai, including Penguin Bank, but excluding the area within three nautical miles of
                                         the upper reaches of the wash of the waves on      'the shore of Kahoolawe Island;
                                .(2)     to the deep water area of Pailolo Channel from Cape Halawa, Molokai, to Nakalele
                                         Point, Maui, and southward;
                                (3)-     to the 100-fathom (18j meter) isobath around the Island of Hawaii;
                                (4)      to the 100-fathom (183 meter) isobath from Kailiu Point eastward to Makahuena
                                         Point, Kauai; and
                                (5)      to the 100-fathorn (183 meter) isobath from Puaena Point eastward to Mahie Point
                                         and from the Ala Wai Canal eastward to Makapuu Point, Oahu.
                                (b) Excluded from the Sanctuary boundary are the following corrunercial ports and small
                        boat harbors:

                                Hawaii (Big Island)                               Kauai
                                Hilo Harbor                                       Hanamaulu Bay
                                Honokohau Boat Harbor                             Nawiliwili Harbor
                                Kawaihae Boat Harbor and
                                 Small Boat Basin                                 Oahu
                                Keauhou Bay                                       Ala Wai Small Boat Basin

                                Maui                                              Molokai
                                Kahului Harbor                                    Hale o Lono Harbor
                                Lahaina Boat Harbor                               Kaunakakai Harbor
                                Maalaea Boat Harbor

                                Lanai
                                Kaumalapau Harbor
                                Manele Harbor

                                The precise boundary of the Sanctuary appears in Appendix A of this subpart.

                        Page 452                                                                Final Environmental impact Statement
                                                                                                                and Management Plan

                   Hawaiian Islands Humpback Whale                                       Appendix K: Designation Document
                   National Marine Sanctuary                                                   and Implementing Regulations

                   � 922.3 Definitions applicable to all national marine sanctuaries.

                          Director means, except where otherwise specified, the Director of the Office of Ocean and
                   Coastal Resource Management, NOAA, or designee.

                          iujuLe means to change adversely, either in the long or short term, a chemical, biological,
                   or physical attribute of, or the viability of. This includes, but is not limited to, to cause the loss of
                   or destroy.

                          Person means any private individual, partnership, corporation, or other entity; or any
                   officer, employee, agent, department, agency, or instrumentality of the Federal Government or of
                   any State, regional, or local unit of government, or of any foreign government.

                          Vessel means a watercraft of any description capable of being used as a means of
                   transportation in/on the waters of a sanctuary.

                   � 922.182         Definitions to the Hawaiian Islands Humpback Whale National
                   Marine Sanctuary only.

                          (a) Acts means the Hawaiian Islands National Marine Sanctuary Act (HINMSA; sections
                   2301-2307 of Pub. L. 102-587), and the National Marine Sanctuaries Act (NMSA; also known as
                   Title III of the Marine Protection, Research, and Sanctuaries Act (MPRSA), as amended, 16
                   U.S.C. 1431 et 512.).
                          Adverse impact means an impact that independently or cumulatively damages, diminishes,
                   degrades, impairs, destroys, or otherwise harms.
                          Alteration of the seabed means drilling into, dredging, or otherwise altering a natural
                   physical characteristic of the seabed of the Sanctuary; or constructing, placing, or abandoning any
                   structure, material, or other matter on the seabed of the Sanctuary.
                          Hab      means those areas that provide space 'for individual and population growth and
                   normal behavior of humpback whales, and include sites used for reproductive activities, including
                   breeding, calving and nursing.
                          Military Activities means those military activities conducted by or under the auspices of the
                   Department of Defense and any combined military activities carried out by the Department of
                   Defense and the military forces of a foreign nation.
                          Sanctu= means the Hawaiian Islands Humpback Whale National Marine Sanctuary.
                          Sanctu= resource means any humpback whale, or the humpback whale's habitat within
                   the Sanctuary.     -
                          Shoreline means the upper reaches of the wash of the waves, other than storm or 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'.
                          Take or taking a humpback whale means to harass, harm, pursue, hunt, shoot, wound,
                   kill, trap, capture, collect or injure, or to attempt to engage in any such conduct. The term
                   includes, but is not limited to, any of the following activities: collecting any dead or injured
                   humpback whale, or any part thereof, restraining or detaining'any humpback whale, or any part
                   thereof, no matter how temporarily; tagging any humpback whale; operating a vessel or aircraft or
                   doing any other act that results in the disturbing or molesting of any humpback whale.

                   (b) Other terms appearing in the regulations in this subpart are defined at 15 CFR 922.3, and/or in
                   the Marine Protection, Research., and Sanctuaries Act, as amended, 33 U.S.C. 1401 et sgq., and
                   16 U.S.C. 1431 et @Leq.

                   Final Environmental Impact Statement                                                            Page 453
                   and Management Plan

                        Appendix K: Designation Document                                           Hawaiian Islands Humpback Whale
                        and Implementing Regulations                                                      National Marine Sanctuary

                        � 922.183 Allowed Activities.

                                (a) All activities except those prohibited by � 922.184 may be undertaken in the Sanctuary
                        subject to any emergency regulations promulgated pursuant to � 922.185, subject to the
                        interagency cooperation provisions of section 304(d) of the NMSA [16 U.S.C. �1434(d)] and �
                        922.187 of this subpart, and subject to the liability established by section 312 of the NMSA and �
                        922.46 of this Part. All activities are also subject to all prohibitions, restrictions, and conditions
                        waidly imposed by any other Federal, State, or county authority of competent jurisdiction.

                                (b) Included as activities allowed under the first sentence of paragraph (a) of this section are
                        all classes of military activities, internal or external to the Sanctuary, that are being or have been
                        conducted before the effective date of these regulations, as identified in the Final Environmental
                        Impact Statement/Management Plan. - Paragraphs (a)(l)-(5) of � 922.184 do not apply to these
                        classes of activities, nor are these activities' subject to further consultation under section 304(d) of
                        the NMSA.

                                (c) Military activities proposed after the effective date of these regulations are also included
                        as allowed activities under the first sentence of paragraph (a). Paragraphs (a)(l)-(5) of � 922.184
                        apply to these classes of activities unless--.

                                        (1) they are not subject to consultation under section 304(d) of the NMSA and �
                                        922.187 of this subpart, or
                                        (2) upon consultation under section 304(d) of the NMSA and � 922.187 of this
                                        subpart, NOAA's findings and recommendations include a statement that
                                        paragraphs (a)(l)-(5) of � 922.184 do not apply to the military activity.
                                (d) If a military activity described in paragraphs (b) or (c)(2) of this sect-ion is modified
                        such.that it is likely to destroy, cause the loss of, or injure a Sanctuary resource in a manner
                        significantly greater than was considered in a previous consultation under section 304(d) of the
                        NMSA and � 922.187 ofthis subpart, or if the modified activity is likely to destroy, cause the loss
                        of, or injure any Sanctuary resource not considered in a previous consultation under section 304(d)
                        of the NMSA and � 922.187 of this subpart, the modified activity will be treated as a new military
                        activity under paragraph (c) of this section.

                                (e) If a proposed military activity subject to section 304(d) of the NMSA      'and
                        � 922.187 of this subpart is necessary to respond to an emergency situation and the Secretary of'
                        Defense determines in writing that failure to undertake the,proposed activity during the period of
                        consultation would impair the national defense, the Secretary of the military department concerned
                        may request the Director that the activity proceed during consultation. If the Director denies such a
                        request, the Secretary of the military department concerned may decide to      Iproceed with the activity.
                        Ea such case, the Secretary of the military department concerned shall provide thd Director with, a
                        written statement describing the effects of the activity on Sanctuary resources once the activity is
                        completed.

                        � 922.184. Prohibited activities.

                                (a) The following activities are prohibited and thus unlawful for any person to conduct or,
                        cause to be conducted.

                                (1)     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 (MMPA), 16 U.S.C. 1361 et 5Leq.,
                                        and the Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 et @Leq.;

                        Page 454                                                               Final Environmental impact Statement
                                                                                                               and Management Plan

                  Hawaiian Islands Humpback Whale                                      Appendix K: Designation Document
                  National Marine Sanctuary                                                  and Implementing Regulations
                          (2)     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 NEAPA and the ESA;
                          (3)     Taking any humpback whale in the Sanctuary except as authorized under the
                                  MMPA and the ESA;

                          (4)     Possessing within the Sanctuary (regardless of where taken). any living or dead
                                  humpback whale or part thereof taken in violation of the MMPA or the ESA;

                          (5)     Discharging or depositing any material or other matter in the Sanctuary;, altering the
                                  seabed of the Sanctuary; or 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 pennit, license, lease, or other
                                  authorization, and is conducted:

                                  0   without such permit, license, lease, or other authorization; oR

                                  0   not in compliance with the terms or conditions of such permit, license,
                                      lease, or other authorization.

                          (6)     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.

                          (b) The prohibitions in paragraphs (a)(l)-(5) of this � 922.184 do not apply to activities
                  necessary to respond to emergencies threatening life, property or the environment; or to activities
                  necessary for valid law enforcement purposes. However, while such activities are not subject to
                  paragraphs (a)(I)-(5) of this � 922.184, this paragraph (b) does not exempt the activity from the
                  underlying prohibition or restriction under other applicable laws and regulations (e.g.- MMPA,
                  ESA, and CWA).

                  � 922.4 Effect of National Marine Sanctuary Designation

                          The designation of a National Marine. Sanctuary, and the regulations implementing it, are
                  binding on any person subject to the jurisdiction of the United States. Designation does not
                  constitute any claim to territorial jurisdiction on the part of the United States for designated sites
                  beyond the U.S. territorial sea, and the regulations implernenting the designation shall be applied in
                  accordance with generally recognized principles of international law, and in accordance with
                  treaties, conventions, and other agreements to which the United States is a party. No regulation
                  shall apply to a person who is not a citizen, national, or resident alien of the United States, unless
                  in accordance with:
                          (a) Generally recognized principles of international law;
                          (b) An agreement between the United States and the foreign state of which the person is a
                  citizen; or
                          (c) An agreement between the United States and the flag state of the foreign vessel, if the
                  person is a crew member of the vessel.

                  � 922.185 Emergency regulations.

                          Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary
                  resource, or to minimize the imminent risk of such destruction, loss, or injury, any and all

                  Final Environmental Impact Statement                                                          Page 455
                  and Management Plan

                      Appendix K: Designation Document                                        Hawaiian Islands Humpback Whale
                      and Implementing Regulations                                                   National Marine Sanctuary
                      activities are subject to immediate temporary regulation, including prohibition. Before issuance of
                      such regulations the Director shall consult to the extent practicable with any relevant Federal agency
                      and the Governor of the State of Hawaii.

                      � 922.186 Penalties; appeals.

                              (a) Pursuant to section 307 of the NMSA, each violation of either of the Acts, or any
                      regulation in this subpart is subject to a civil penalty of not more than $100,000. Each such
                      violation is subject to forfeiture of property or Sanctuary resources seized in accordance with
                      section 307 of the NMSA. Each day of a continuing violation constitutes a separate violation.

                              (b) Regulations setting forth the procedures governing the administrative proceedings for
                      assessment of civil penalties  for enforcement reasons, issuance and use of written warnings, and
                      release or forfeiture of seized property appear at 15 CFR Part 904.

                              (c) A person subject to an action taken for enforcement reasons for violation of these
                      regulations or either of the Acts may appeal pursuant to the applicable procedures in 15 CFR Part
                      904.

                      � 922.187 Interagency Cooperation.

                              Under section 304(d) of the NMSA, federal agency actions internal or external to a national
                      marine 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 Director. The federal agency proposing an action shall determine whether the activity is likely
                      to destroy, cause the loss of, or injure a Sanctuary resource. To the extent practicable, consultation
                      prc)cedures under section 304(d) of the NMSA may be consolidated with interagency cooperation
                      procedures required by other statutes, such as the ESA. The Director will attempt to provide
                      coordinated review and analysis of all environmental requirements.

                      � 922.46 Response costs and damages.
                              Under section 312 of the NMSA, 16, U.S.C. 1443, any person who destroys, causes the
                      loss of, or injures any Sanctuary resource is liable t  'o the United States for response costs and
                      damages (plus interest) resulting from such destruction, loss,, or injury, and any vessel used to
                      destroy, cause the loss of, or'injure any Sanctuary resource is liable in rem to the United States for
                      response costs and damages resulting from such, destruction, loss, or injury.
                                                                                        I
                      Appendix A to subpart Q -- Hawaiian Islands Humpback Whale National Marine
                      Sanctuary Boundary Coordinates

                      Page 456                                                            Final Environmental Impact Statement
                                                                                                         and Management Plan

                     Hawaiian Islands Humpback Whale                                                Appendix K: Designation Document
                     National Marine Sanctuary                                                             and Implementing Regulations

                     Appendix 1: Hawaiian Islands Humpback Whale National Marine Sanctuary
                     Boundary Coordinates

                     Kauai                                                          48.             22,15,6              159,22,34
                     Pointj           Latitude            Longitude                 49.             22,15,6              159,21,54
                                    (deg,min,sec)        (deg,min,sec)              50.             22,15,7              159,21,23
                                      22,13,37            159,34,57                 51.             22,14,30             159,20,55
                     2.               22,16,42            159,36,4                  52.             22,14,18             159,20,31
                     3.               22,17,13            159,35,16                 53.             22,14,22             159,19,54
                     4.               22,17,25            159,34,34                 54.             22,13,21             159,18,43
                     5.               22,17,15            159,33,2                  55.             22,12,31             159,17,46
                     6.               22,16,59            159,32,3                  56.             22,12,18             159,17,17
                     7.               22,16,34            159,31,31                 57.             22,11,14             159,17,5
                     8.               22,15,47            159,31,19                 58.             22,10,29             159,16,42
                     9.               22,15,41            159,31,5                  59.             22,@,57              159,16,25
                     10.              22,16,14            159,30,37                 60.             22,9,25              159,15,42
                     11.              22,16,6             159,29,46                 61.             '22,8,34             159,15,39
                     12.              22,15,50            159,29,20                 62.             22,0,15              159,18,48
                     13.              22,15,52            159,28,32                 63.             22,7,4               159,16.37
                     14.              22,15,31            159,27,54                 64.             22,6,17              159,16.31
                     15.              22,15,25            159,27,17                 65.             22,5,51              159,16.13
                     16.              21,52,0             159,22,56                 66.             22,5,4               159,16.47
                     17.              21,59,17            159,18,25                 67.             22,4,18              159.17,32
                     18.              21,58,42            159,18,51                 68.             22,3,32              159,17,28
                     19.              21,58,28            159,18,56                 69.             22,3,15              159,17,23
                     20.              21,58,10            159,18,54                 70.             22,2,56              159,17,33
                     21.              21,58,4             159,18,32                 71.             22,2,48              159,17,48
                     22.              21,57,5             159,18,41                 72.             22,2,33              159,18,4
                     23.              21,56,43            159,19,4                  73.             22,2,16              159,18,24
                     24.              21,56,13            159,19,39                 74.             22,1,57              159,18,46
                     25.              21,55,29            159,20,36                 75.             22,1,51              159,19,11
                     26.              21,54,48            159,21,12                 76.             22,1,26              159,19,24
                     27.              21,54,1             159,21,27                 77.             22,0,59              159,19,8
                     28.              21,53,45            159,21,46                 78.             22,0,49              159,18,54
                     29.              21,53,27            -159,22,14                79.             22,0,0               159,18,47
                     30.              21,53,1             159,22,32                 80.             21,59,40             159,18,27
                     31.              21,52,44            159,22,37
                     32.              21,52,13            159,22,49                 Oahu (North)
                     33.              21,51,45            159,23,18                 Points          Latitude             Longitude
                     34.              21,51,43            159,23,50                                 (deg,min,sec)      (deg,n-dn,sec)
                     35.              21,51,49            159,24,26                 1               21,36,22             158,6,37
                     36.              21,51,53            159,24,48                 2.              21,38,41             158,8,39
                     37.              21,51,51            159,25,12                 3.              21,39,1              158,8,7
                     38.              21,51,42            159,25,41                 4.              21,39,24             158,7,44
                     39.              21,51,15            159,25,58                 5.              21,39,43             158,7,44
                     40.              21,50,57            159,26,15                 6.              21,40,12             158,7,27
                     41.              21,52,17            159,26,48                 7.              21,40,27             158,7,38
                     42.              22,12,53            159,18,4                  8.              21,40,45             158,7,21
                     43.              22,15,26            159,26,20                 9.              21,40,46             158,6,56
                     44.              22,15,11            159,25,52                 10.             21,41,7              158,6,41
                     45.              22,15,18            159,24,50                 11.             21,41,29             158,6,16
                     46.              22,15,22            159,24,10                 12.             21,41,44             158,6,13
                     41.              22,15,21            159,22,53                 13.             21,42,55             158,5,13

                     Final Environmental Impact Statement                                                                       Page 457
                     and Management Plan

                                Appendix K: Designation Document                                                                             Hawaiian Islands Humpback Whale
                                and Implementing Regulations                                                                                            National Marine Sanctuary

                                14.                    21,43,54                   158,3,58                           29.                  21,15,52                     157,34,46
                                15.                    21,44,22                   158,3,22                           30.                  21,15,56                     157,35,19
                                16.                    21,45,3-                   158,2,0                            31.                  21,15,20                     157,35,44
                                17.                    21,45,15                   158,1,19                           32.                  21,15,13                     157,36,0
                                18.                    21,45,34                   158,0,20                           33.                  21,15,22                     157,36,57
                                19.                    21,37,14                   157,51,34                          34.                  21,15,33                     157,38,20
                                20.                    21,45,34                   157,59,17                          35.                  21,15,21                     i57,38,51
                                21.                    21,45,34                   157,58,37                          36.                  21,15,20                     157,40,5
                                22.                    21,45,29                   157,57,34                          37.                  21,15,23                     157,40,53
                                23.                    21,44,55                   157,56,18                          38.                  21,14,56                     157,42,6
                                24.                    21,44,33                   157,55,30
                                25,                    21,44,13                   157,54,40
                                26.,                   21 ' 43,33                 157,53,45
                                27,                    21,41,34                   157,53,12
                                28.                                               157,52,38                          Maui
                                29..                   21,37,54                   157,53,3                           Points             Latitude                       Longitude
                                30..                   21,37,48                   157,52,38                                           (deg,min,sec)                  (deg,min.sec)
                                3L                     21,35,47                   157,50,11                       7-                    20,51,18                       157,44.40
                               .32.,                   21,33,48                   157,51,58                          2.                 20,52,9                        157,44,16'.
                                33.                    21,37,50                   157,52,10                          3.                 20,52,37                       157,44,38
                                34.                    21,36,43                   157,50,54                          4.                 20,52,47                       157,45,24
                                                                                                                     5.                 20,53,38                       157,46,3
                                Oahu (South)                                                                         6.                 20,55,27                       157,45,21
                                Points               Latitude                     Longitude                          7.                 20,56,22                       157,45,43
                                                     (deg,min,sec)              (deg,min,sec)                        8.                 20,57,2                        157,45,17
                                1.                   21,15,38                     157,51,1                           9.                 20,57,36                       157,44,31
                                2.                   21,14,18                     157,42,17                          10.                20,59,2                        157,44,19
                                3.                   21,14,9                      157,42,46                          11.                20,59,54                       157,43,33
                                4.                   21,13,27                     157,43,13                          12.                21,1,19                        157,43,14
                                5.                   21,13,31                     157,43,47                          13.                21,1,45                        157,42,11
                                6.                   21,14,44                     157,43,59                          14.                21,2,56                        157,42,2
                                7.                   21,14,47                     157,44,24                          15.                21,3,7                         157,41,32
                                8.                   21,14,35                     157,44,54                          16.                21,3,3                         157,40,43
                                9.                   21,14,34                     157,45,32                          17.                21,4,2                         157,39,39
                                10.                  21,14,11                     157,46,52                          18.                21,4,49                        157,39,57
                                11.                  21,14,14                     157,47,35                          19.                21,5,16                        157,39,30
                                12.                  21,13,55                     157,47,58                          20.                21,5,9                         157,38,21
                                13.                  21,14,0                      157,48,28                          21.                21,5,20                        157,37,59
                                14.                  21,14,29                     157,48,53                          22.                21,5,52                        157,37,54
                                15.                  21,14,40                     157,49,34                          23.                21,6,48                        157,36,30
                                16.                  21,15,0                      157,50,16                          24.                21,7,34                        157,35,24
                                17.                  21,15,25                     157,50,51                          25.                21,8,11                        157,33,41
                                18.                  21,15,50                     157,51-,14                         26.                21,8,56                        157,33,1
                                -19.                 21,17,8                      157,50,54                          27.                20,57,10                       157,33,16
                                20.                  21,18,50                     157,39,6                           28.                20,56,33                       .157,33,42
                                21.                  21,19,53                     157,36,4                           29.                20,55,10                       157,33,45
                                22.                  21,19,34                     157,35,6                           30.                20,53,29                       157,37,14
                                23.                  21,18,55                     157,34,21                          31.                20,51,57                       157,40,53
                                24.                  21,18,47                     157,33,53                          32.                20,51,40                       157,42,12
                                25.                  21,17,52                     157,33,21                          33.                20,50,56                       157,42,54
                                26.                  21,17,36                     157,33,32-                         34.                20,58,18                       157,22,27
                                27.                  21,17,3                      157,33,32                          35.                21,0,19                        157,19,45
                                28.                  21,16,34                     157,34,3                           36.                21,1,25                        157,18,43

                                Page 458                                                                                                Final Environmental Impact Statement
                                                                                                                                                               and Management Plan

                     Hawaiian Islands Humpback Whale                                                    Appendix K: Designation Document
                     National Marine Sanctuary                                                                  and Implementing Regulations'

                     37.            21,1,7                   157,19,36                  91.            20,53,46                157,5,35
                     38.            21,0,44                  157,20,30                  92.            20,54,59                157,5,28
                     39.            21,0,0                   157,19,0                   93,            20,55,29                157,5,31
                     40.            20,59,29                 157,19,28                  94.            20,56,31                1574,8
                     41.            20,59,29                 157,20,57                  95.            20,56,58                157,3,32
                     42.            20,59,55                 157,21,29                  96.            20,57,37                157,2,45
                     43.            21,0,38                  157,21,26                  97.            20,58,22                157,2,7
                     44.            21,0,23                  157,21,57                  98.            20,58,40                157,1,28
                     45.            21,0,16                  157,22,41                  99.            20,59,26                157,1,14
                     46.            21,0,28                  157,23,29                  100.           21,0,24                 157,1,25
                     47.            21,0,26                  157,24,32                  101.           21,1,15                 157,1,30
                     48.            21,0,3                   157,25t23                  102.           21,1,50                 157,1,59
                     49.            20,59,24                 157,25,20                  103.           21,2,20                 157,2,19
                     50.            20,58t53                 157,25,47                  104.           21,3,0                  157,3,4
                     51.            20,58,50                 157,26,21                  105.           2lt3,6                  157,4,51
                     52.            20,58,22                 157,25,22                  106.           21,3,41                 157,6,17
                     53.            20,58,49                 157,23,17                  107.           21,3,9                  157,8,46
                     54.            20,58,43                 157,21,50                  108.           21,3,29                 157,10,22
                     55.            20,58,11                 157,23,46                  109.           21,15,48                157,11,4
                     56.            20,57,56                 157,26,49                  110.           21,15,27                157,9,24
                     57.            20,57,59                 157,28,30                  Ill.           2ltl5,2                 157,8,29
                     58.            20,57,51                 157,29,44                  112.           21,14,23                157,6,12
                     59.            20,57,25                 157,31,42                  113.           2 1,13,56               157,5,10
                     60.            20,56,32                 157,29,51                  114.           21,13,55                157,4,25
                     61.            20,56,1                  157,29t56                  115.           2 1 t 13,47             157,4,1
                     62.            20,55,54                 157,31,46                  116.           21,13,7                 157,3,25
                     63.            21,17,9                  157,17,24                  117.           21,13,38.               157,2,54
                     64.            21,9,41                  157,31,30                  118.           21,13,35                157,1,42
                     65.            21,9,58                  157,30,9                   119.           21,13,1                 157,1,2
                     66.            21,9,58                  1.57,29,39                 120.           21,13, 10               157,0,15
                     67.            21,9,29                  157,28,36                  121.           21,12,43                156,59,54
                     68.            21,9,33                  157,27,5                   122.           21,13,22                156,59,8
                     69.            21,10,2                  15T,23,53                  123.           21,13,46                156,58,25
                     70.            21,10,51                 157,21,43                  124.           21J3,14                 156,57,40
                     71.            21,12,41                 157,19,17                  125.           20,49,18                157,1,5
                     72.            21,14,54                 157,18,44                  126.           20,44,4                 156,48,49
                     73.            21,16,42                 157,18,25                  127.           20,43,18                156,45,48
                     74.            21,17,13                 157,16,13                  128.           20,43,44                156,46,17
                     75.            21,16,35                 157,14,39                  129.           20,43,41                156,47,27
                     76.            21,16,2                  157,13,14                  130.           20,44,42                156,48,49
                     77.            21,3,36                  157,10,57                  131.           20,44,23                156,49,38
                     78.            21,3,41                  157,11,50                  132.           20,44,23                156,51,9
                     79.            21,3,13                  157J2,22                   133.           20,43,37                156,51,54
                     80.            21,2,25                  157,12,51                  134.           20,44,19                156,47,48
                     81.            21,2,7                   157,13,43                  135.           20,43,6                 156,52,31
                     82.            21,1,51                  157,14,11                  136.           20,42,16                156,53,12
                     83.            21,1,59                  157,14,37                  137.           20,42,39                156,54,43
                     84.            21,1,56                  157,15,12                  138.           20942,47                156,56,25
                     85.            21,1,36                  157,16,5                   139.           20,42,54                156,57,39
                     86.            21,1,42                                             140.           20,43,56                156,59,6
                     87.            21,1,16                  157,17,27                  141.           20,45,16                157,0,3
                     88.            21,0,51                  157,18,8                   142.           20,46,37                157,0,48
                     89.            21,0,59                  157,18,35                  143.           20,47,38                157,0,40
                     90.            21,3,21                  157,3,59                   144.           20,50,43                157,2,39

                     Final Environmental Impact Statement                                                                               Page 459
                     and Management Plan

                           Appendix K: Designation Document                                                          Hawaiian Islands Humpback Whale
                           and Implementing Regulations                                                                       National Marine Sanctuary

                           14-5.           20,51,53                  157,4,27                    199.            21,0,44                  156,21,34
                           146.            20,52,31                  157,4,58                    200.            21,1,0                   156,18,8
                           14-7.           21,12,49                  156,43,45                   201.            20,33,7                  156,23,38
                           148.            21,11,36                  156,53,20                   202.            20,36,3                  156,10,43
                           149.            21,12,38                  156,56,44                   203.            20,35,46                 156,13,13
                           150.            21,12,1                   156,56,8                    204.            20,35,11                 156,14,55
                           151.            21,12,7                   156,55,3                    205.            20,34,4                  156,16,39
                           152.            21,12,5                   156,54,17                   206.            20,33,28                 156,17,29
                           153.            21,11,36                  156,54,2                    207.            20,33,49                 156,19,24
                           154.            21,12,3                   156,52,56                   208.            20,313,36                156,20,59
                           155.            21,11,48                  156,52,6                    209.            20,33,18                 156.22,7
                           156.            21,12,7                   156,51,38                   210.            20,35,8                  156,27,59
                           157.            .21,11,40                 156,51,34                   211.            20,33,46                 156,26,9
                           158.            21,11,59                  156,50,44                   212.            20,36,27                 156,28,24
                           159.            21,12,30                  156,49,55                   213.            20,36,31                 156,28,57
                           160.            21,12,26                  156,49,26                   214.            20,35,53                 156,28,41
                           161.            21,12,15                  156,48,37                   215.            20,59,43                 156,16,25
                           162.            21,12,22                  156,47,56                   216.            20,58,42                 156,13,53
                           163.            21,11,52                  156,47,27                   217.            20,54,32                 156,9,10
                           164.            21,12,34                  156,46,42                   218.            20,54,2 1                156,8,16
                           165.            21,13,16                  156,45,40                   219.            20,53,8                  156.6.17
                           166.            21,13,32                  156,45,3                    220.            20,51,25                 156,5.7
                           167.            21,13,1                   156,44,26                   221.            20,51,5                  156.4,18
                           168.            21,12,30                  156,43,4                    222.            20,50,35                 156,3,57
                           169.            21,11,56                  156,42,56                   223.            20,49,56                 156,1,50
                           170.            21,12,11                  156,41,58                   224.            20,48,43                 156,0,52
                           171.            21,11,59                  156,41,5                    225.            20,48,4o                 155,59,55
                           172.            21,11,13                  156,39,51                   226.            20,48,1                  155,58,53
                           173.            21,10,31                  156,39,30                   227.            20,37,34                 156,4,45
                           174.            21,8,6                    156,40,32                   228.            20,47,11                 155,58,0
                           175.            21,7,8                    156,40,11                   229.            20,46,22                 155,57,35
                           176.            20,36,4                   156,29,59                   230.            20,45,24                 155,57,23
                           177.            20,38,57                  156,34,30                   231.            20,44,30                 155,57,15
                           178.            20,39,50                  156,35,3:Z                  232.            20,42,58                 155,57,6
                           179.            20,40,33                  156,36,5                    233.            20,41,38                 155,58,20
                           180.            20,41,22                  156,36,34                   234.            20,40,50                 155,59,12
                           181.-           20,42,5                   156,36,54                   235.            20,40,5                  155,59,51
                           182.            20,42,12                  156,38,0                    236.            20,39,35                 156,0,54
                           183.            20,42,51                  156,39,38                   237.            20,38,46                 156,1,46
                           184.            20,43,14                  156,41,1                    238.            20,38,0                  1562,24
                           185.            20,43,33                  156,42,11                   239.            20,37,37                 156:3,23
                           186.            20,44,11                  156,42,31                   240.            20,37,29                 156,5,49
                           187.            20,43,52                  156,43,25                   241.            20,36,39                 1-56,6,50
                           188.            20,41,22                  156,42,31                   242.            20,36,21                 156,7,54
                           189.            20,41,3                   156,43,0                    243.            20,35,59                 156,8,55
                           190.            20,42,12                  156,44,22                   244.            20,53,1                  157,38,48
                           191.            20,43,2                   156,44,43                   245.            .20,54,7                 157,35,43
                           192.            21,0,44                   156,18,53                   246.            20,56,28                 157,32,7
                           193.            21,4,31                   156,37,39                   247.            20,58,27                 157,24,17
                           194.            21,4,31                   156,35,32                   248.            20,58,3                  157,25,19
                           195.            21,3,4                    156,33,57                   249.            21,3,24                  157,7,44
                           196.            21,2,5                    156,31,13                   250.            20,55,55                 157,30,55
                           197.            21,1,4                    156,27,27                   251.            20,50,44                 157,2,9
                           199.            21,1,15                   156,22,39                   252.            21,1,8                   156,24,34

                           Page 460                                                                              Final Environmental Impact Statement
                                                                                                                                   and Management Plan

                        Hawaiian Islands Humpback Whale                                                             Appendix K: Designation Document
                        National Marine Sanctuary                                                                           and Implementing Regulations

                        253.            20,34,31                   156,26,58                     43.                19,18,0                  155,53,47
                        254.            20,58,12                   156,12,43                     44.                19,19,22                 155,53,49
                        255.            20,52,7                    157,40,28                     451                19,22,49                 155,54,43
                        256.            20,54,59                   157,34,4                      46                 19,25,22                 155,55,33
                                                                                                 47                 19,26,21                 155,55,39
                                                                                                 48*                19,27,14                 155,56,9
                                                                                                 49                 19,28,41                 155,56,42
                                                                                                 50                 19,29,1                  155,57,14
                        Big Island (Hawaii)                                                      51.                19,29,25                 155,58,9
                        Points            Latitude                 Longitude                     52.                19,30,23                 155,59,3
                                        (deg,min,sec)              (deg,minsec)                  53.                20,15,49                 155,43.33
                        I .               19,A154                  156,0,19                      54.                20,13,22                 155,56,15
                        2.                19,34,42                 156,0,33                      55.                20,7,10                  155,55,14
                        3.                19,35921                 156,0,35                      56.                2099,21                  155,5@,44
                        4.                19,39,49                 156,2,29                      57.                20,12,43                 155,56,28
                        5.                19,43,34                 156,4926                      58.                20,14,41                 155,56,12
                        6.                19,46,7                  156,5,57                      59.                20,15,34                 155.55  ',53
                        7,                19,47,17                 156,6,34                      60.                20,16,21                 155,55,28
                        8.                1994893                  156,6,19                      61.                20,16,47                 155,54,54
                        9.                19,48,42                 156,6,28                      62.                20,17,42                 155,53.56
                        10.               19,51,28                 156,4,33                      63.                20,18,11                 155,52,3
                        11.               19,53,15                 156,2,25                      64.                20918,9                  155,51,28
                        12.               19,55,43                 155,58,13                     65.                20,17,41                 155,49,45
                        B.                19,53,47                 156,1926                      66.                20,16,39                 155,45,47
                        14.               19,54,6                  156,1,1                       67.                20,16,23                 155,44,18
                        15.               19,54,8                  15690,3                       68.                20,14,44                 155,  43,7
                        16.               19955,8                  155,59,14                     69.                20,14,5                  155942,57
                        17.               19,56,11                 155,57,41                     70.                20,13,54                 155,41,55
                        18.               19,56936                 155,57,19                     71.                20,12,57                 155,41,28
                        19.               19,57,19                                               72.                20,12,8                  155,40,58
                        20.               19957,56                 155956,18                     73.                20911,32                 155,39,37
                        21.               19,58,22                 155955,56                     74.                18,51,25                 155,41,26
                        22.               19,58939                 155,55,2                      75.                18,52,3                  155,41945
                        23.               19,58945                 155,54,36                     76.                18,52,36                 155,41,44
                        24                19,58957                 155,54,9                      77.                18,53,23                 155,41,35
                        25                19,59,15                 155953,37                     78.                18,54,14                 155,41,39
                        26                19,59,31                 155,52,58                     79.                18,54,42                 155,41.28
                        27                20,0,20                  155,52,25                     80.                18,55942                 155,41,27
                        28                20,1,4                   155,52,25                     81.                18956926                 155,41,51
                        29                20,1,36                  155,52,4                      82-.               18,56,41                 155,42,16
                        30                20,2924                  155,52,17                     8j.                18,5790                  155,42,41
                        31                2093,14                  155,52,25                     84..               18,57,33                 155,43,15
                        32                20,5,50                  155,54,44                     85.                18,5897                  155,44,2
                        33                19,20,32                 155953,38                     86.                18,58,14                 155944,49
                        34                19,7,28                  .155,55,34                    87.                18,58,36                 155,45,43
                        35                19,9,6                   155,55,49                     88.                18,58,56                 155,46,16
                        36                19,9,52                  155955,42                     89.                18959,32                 155,47,7
                        37                19,10,57                 155,55,16                     90.                1990,38                  155,48,26
                        38                19,12,49                 155,54,28                     91.                19,0,49                  155,49,37
                        39                19,13,29                 155,54,32                     92.                19,1,9                   155,50,36
                        40                19,14,22                 155,54,24                     .93.               19,1,22                  155,51,43
                        41                19,15,2                  155,54,24                     94.                19,2,4                   155,52,58
                        42.               19,16,17                 155,54,1                      95.                19,2939                  155,53,14
                                                                                                 96.                19,3940                  155,53945
                        Final Environmental Impact Statement                                                                                          Page 46 1,
                        and Management Plan

                               Appendix K: Designation Document                                                                         Hawaiian Islands Humpback Whale
                               !nd Implementing Regulations                                                                                        National Marine Sanctuarv

                               97.                  19,4,52                     155,54,50                        .151.               19,15,55                    155,16,18
                               98.                  19,5,51                     155,55,4                         152.                19,15,29                    155,17,1
                               99.                  18,52,27                    155,40,26                        153.                19,15,42                    155,17,30
                               100.                 18,53,12                    155,39,32                        154.                19,14,37                    155,18,51
                               101.                 19,3,35                     155,32,20                        155.                19,13,55                    155,20,10
                               1012.                19,12,28                    155,21,5                         156.                20,3,22                     155,18,51
                               10:5.                19,11,47                    155,22,47                        157.                20,1,48                     155,15,39
                               1&t.                 19,10,38                    155,25,12                        158.                19,59,17                    155,11,13
                               10.15.               19,9,34                     155,26,18                        159.                19,58,42                    155,10,31
                               1015.                19,9,4                      155,26,31                        160.                19,57,40                    155,0,0
                               197.                 19,8,29                     155,277,44                       161.                19,56,17                    155,7,5.7
                               I 01@.               19,8,3                      155,29,20                        162.                19,55,18                    155,6,35
                               101).                19,7,5                      155,30,35                        163.                19,54,1                     155,5,14
                               111).                19,6,29                     155,31,20                        164.                19,52,12                    155,3,54
                               111.                 19,5,36                     155,32,6                         165.                19,51,0                     155,3,25
                               112.                 19,4,35                     155,32,19                        166.                19,49,52                    155,3,25
                               11:3.                19,2,52                     155,32,48                        167.                19,48,56                    155,3,5
                               114.                 19,1,15                     155,34,29                        168.                19,45,25                    154,58,59
                               11:5.                19,0,24                     155,34,57                        169.                19,48,15                    155,2,14.
                               1115.                18,59,29                    155,35,28                        170.                19,47,49                    155,2,33
                               1 IT                 18,58,17                    155,35,37                        171.                19,47,21                    155,2,7.
                               113.                 19,1,53                     155,33,29                        172.                19,47,6                     155,1,27
                               111).                18,57,6                     155,36,16                        173.                19,46,37                    155,1,0
                               120.                 18,56,15                    155,36,46                        174.                19,46,20                    155,0,39
                               121.                 18,55,15                    155,37,19                        175.                19,46,0                     154,59,28
                               122.                 18,54,31                    155,38,32                        176.                19,44,37                    154,58,34
                               12:3.                20,4,41                     155,.21,53                       177.                19,44,14                    154,58,33
                               124.                 20,10,40                    155,38,43                        178.                19,43,15                    154,58,30
                               125.                 20,10,23                    155,38,3                         179.                19,42,40                    154,58,9
                               126.                 20,9,50                     155,37,34                        180.                19,41,52                    154,58,-12
                               127.                 20,9,53                     155,37,15                        181.                19,41,34                    154,57,43
                               128.                 20,9,23                     155,36,14                        182.                19,41,13                    154,57,17
                               129.                 20,8,46                     155,34,38                        183.                19,40,39                    154,57,24
                               131).                20,8,49                     155,34,0                         184.                19,39,54                    154,57,24
                               13 1.                20,8,13                     155,32,46                        185.                19,39,27                    154,56,58
                               13' 2.               20,8,13                     155,31,23                        186.                19,39,15                    154,56,49
                               133.                 20,7,40                     155,29,41                        187.                19,38,38                    154,56,5@
                               134.                 20,7,6                      155,27,29                        188.                19,38,17                    154,56,58
                               135.                 20,6,45                     155,26,3                         189.                19,37,13                    154,56,10
                               130.                 20,6,9                      155,24,40                        190.                19,33,26                    154,52,7
                               137.                 20,5,29                     155,23,10                        191.                19,35,24                    154,55,6
                               1313.                20,3,59                     155,20,4                         192.                19,34,18                    154,53,24
                               139.                 19,17,53                    155,5,13                         193 '..             19,33,2                     154,50,56
                               141).                19,15,52                    155,8-,36                        194.                19,32,35                    154,49,4
                               141.                 19,14,52                    155,10,31.                       195.                19,3 L49                    154,48,13
                               142.'                19,14,57                    155,11,7                         196.                t9,30:49                   .154,48,4
                               14:3.                19,15,4                     155,11,39                        197.                19,29,42                    154,48,23
                               144.                 19,14,S8                    155,11,50                        198.                19,28,51                    154,48,58
                               145.                 19,15,1                     155,12,18                        199.                19,28,14                    154,49,31
                               1445.                19,15,15                    155,12,55                        200.                19,27,52                    154,49,57
                               147.                 19,15,9                     155,13,28                        201.                19,27,15                    154,50,25
                               1413:                19,15,32                    155,14,10                        202.                19,26,37                    154,51,21
                               149.                 19,15,31                    155,14,55                        203.                19,23,48                    154,55,11
                               151).                19,15,50                    155,15,42                        204.                19,22,57'                   154,56,10

                               Page 462
                                                                                                                                   Final Environmental Impact Statement
                                                                                                                                                         and Management Plan

                     Hawaiian Islands Humpback Whale                                               Appendix K: Designation Document
                     National Marine Sanctuary                                                           and ImElementing Regulations

                     205.           19,21,23             154,57,50                 Kaumalapau Harbor (Lanai)
                     206.           19,19,34             155,1,22                  1              20,47,12              156,59,41
                                                                                   2              20,47,19              156,59,42

                                                                                   Manele Harbor (Lanai)
                     Ports and Harbor Exclusions                                   1              20,44,46              156,53,24
                     (points mark outer boundary       of harbor)                  2              20,44,44             -156,53,22

                     Points         Latitude             Longitude                 Hanamaula Bay (Kauai)
                                  (deg,min,sec)         (deg,min,sec)              1              21,59,49              159,20,6
                     Ala Wai Harbor (Oahu)                                         2              22,0,3                159,20,8
                     1              21,17,5              157,50,55
                     2              21,17,2              157,50,34                 Nawiliwili Harbor (Kauai)
                                                                                   1              21,57,3               159,21,3
                     Hilo BU (Bigy Island)                                         2              21,57,29              159,20,20
                     1              19,44,37             155,5,35
                     2              19,44,44             155,4,40

                     Honokohau Harbor (Biz Island)
                     1              19,40,23             156,1,50
                     2              19,40,11             156,1,56

                     Kawaihae Harbor (Big Island)
                     1              20,2,25              155,50,12
                     2              20,2,36              155,50,7

                     Kcauhou BU (Big jaland)
                     1              19,33,43             155,58,8
                     2              19,34,2              155,58,9

                     Kahului Harbor (Maui)
                     r              20,54,12             156,28,36
                     2              20,54,13             156,28,28

                     Lghaina Harbor (Maui)
                     1              20,52,29             156,40,54
                     2              20,52,29             156,40,53

                     Maalea Harbor (Maui)
                     1              20,47,36             156,30,49
                     2              20,47,42             156,30,44

                     Hale o Lono Harbor (Molgkai)
                     1              21,5,15              157,15,8
                     2              21,5,15              157,15,5

                     Kalinakakai Harbor (Molokai)
                     1              21,5,' 25            157,1,46
                     2              21,5,0               157,2,8
                     3              21,4,49              157,1,51
                     4              21,5,18              157,1,25

                     Final Environmental Impact Statement                                                                      Page 463
                     and Management Plan

                      Appendix K: Designation Document                                         Hawaiian Islands Humpback Whale
                      and Implementing Regulations                                                    National Marine Sanctuary.

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                      Page 464                                                              Final Environmental Impact Statement
                                                                                                           and Management Plan

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