Save State Waters! Prevent Federal Jurisdiction!
What do we want for the future of Hawaii Kai?
In summary, there needs to be a lot more discussion and give and take about who does what in Maunalua Bay before anything is finalized or even further considered. I don’t see benefits accruing to our environment that could not be managed and mandated by the State of Hawaii, rather than the federal government.
Gene WardRep. Gene Ward Testimony
Comments by Rep. Gene Ward on Draft Management Plan & Draft EIS, Especially in Regards the Proposed Maunalua Bay Special Sanctuary Management Area (SSMA)
Myth-Buster Factsheet
The Friends of Maunalua Bay offers this “Myth-Buster Factsheet” to clarify some of the misleading statements recently reported in the media regarding the expansion of the Hawaiian Islands Humpback Whale National Marine Sanctuary (“HIHWNMS”) as proposed in the March 2015 Draft Management Plan and Draft Environmental Impact Statement issued by the National Oceanic and Atmospheric Administration (“NOAA”).
Myth 1
- Myth: “And if anyone looks at our proposal they will see that we give an exemption for dredging that related to maintenance of harbors,” “We understand there’s a safety issue that people still need to move in and out. So we would give an exemption.”
- Malia Chow (HIHWNMS superintendent), KHON2, 6/13/15
Fact 1
- Facts: § 922.184(a)(6) of the Proposed Rules prohibits, “dredging, drilling into, or otherwise altering in any way the submerged lands” within Maunalua Bay. The “exemption” under subsection (iv) has a sunset clause of 1 year from the final rule effective date. The only other “exemption” under subsection (c) gives the Director of NOAA nearly unrestricted authority to object to dredging as “the Director deems necessary…”
Myth 2
- Myth: “And the homeowners should not be affected,”
- Malia Chow (HIHWNMS superintendent), KHON2, 6/13/15
Fact 2
- Facts: Homeowners on the Hawaii Kai Marina would be affected by any additional costs or regulatory hurdles associated with dredging (assuming an exception to §922.184(a)(6) is deemed applicable). Homeowners on the marina could be held responsible for “discharging or depositing any material or other matter” into Maunalua Bay under § 922.184(a)(4), and (5) as the result of the numerous drainage culverts flowing through the marina and into the bay. Many of the homeowners in Hawaii Kai visit Maunalua Bay on a regular basis and will be impacted by the prohibitions listed in § 922.184 including prohibitions on (i) fireworks displays, (ii) “altering submerged lands” which as written could literally prohibit building a sand castle below the high water mark or walking on the inner reef, (iii) on anchoring vessels in anything but sand (which is only about 10% of the bay), and (iv) scattering human remains which as currently written would require a Special Use Permit (applicant must have liability insurance or bonding).
Myth 3
- Myth: “There’s nothing in our proposal that restricts access to the bay…”
- Malia Chow (HIHWNMS superintendent), KHON2, 6/13/15
Fact 3
- Facts: The Prohibited Activities under § 922.184 of the Proposed Rules (as noted above) has the effect of restricting access to the bay. For example, NOAA’s own maps show approximately 10% sand cover in the bay, and boaters will be restricted to anchoring in just those areas. See, § 922.184(a)(6)(i).Page 2
Myth 4
- Myth: “Right now anyone operating a commercial or recreational business legally now, will be exempt from the proposed regulations.”
- Roger Mari (reporter), KITV4, 6/15/15
Fact 4
- Facts: There are no exemptions under the Proposed Rules, except for an exemption for commercial fishers holding “permit issued by the State of Hawai’i…” See, § 922.184(a)(6)(vi). The vast majority of recreational and subsistence fishing in Hawai’i is done legally without a permit. There are no other exemptions for commercial business operations.
Myth 5
- Myth: “Recreational use of Maunalua Bay is not in danger. This includes fishing, anchoring, scattering of ashes and other current uses.”
- Frazer McGilvray, ED for Malama Maunalua, KITV4, 6/15/15
Fact 5
- Facts: Recreational fishers will only be able to anchor in 10% of the bay, will not be able to lay traps or any other device on the sea floor, and could be subject to fines of up to $100,000.00 per violation if fishing gear becomes entangled in the reef. Anchoring is clearly limited to sand under § 922.184(a)(6)(i), which according to NOAA’s own maps constitutes only about 10% of the bay. As to scattering of ashes, there is no clear exemption. Further, the “disposal of cremated human remains” requires a Special Use Permit under 15 CFR Part 922(II)(11c)(4).
Myth 6
- Myth: “The decline of Maunalua Bay is serious – the worst in the state…”
- Frazer McGilvray, ED for Malama Maunalua, KITV4, 6/15/15
Fact 6
- Facts: NOAA has conducted no studies on the bay. Even according to Malama Maunalua’s own website, the major ecological stressors are (i) drainage systems into the bay, and (ii) overfishing. Scientific studies have concluded that sedimentation and coastal runoff are the major stressors impacting the health of the Bay (Klemmer 1976; Wolanski et al. 2009; Swarzenski et al. 2013; Ganguli et al. 2014; and many others). NOAA’s plan and additional regulations do nothing to address either of these issues.
Myth 7
- Myth: “[Malia] Chow also says the proposal would prohibit disturbing the sea floor and discharges into the bay, but she says scattering of ashes would be okay.”- KHON2, 6/13/15
Fact 7
- Facts: There is no clear exemption under § 922.184(a)(4) allowing for scattering of human remains.Further, the “disposal of cremated human remains” specifically requires a Special Use Permitunder 15 CFR Part 922(II)(11c)(4).
Myth 8
- Myth: “The proposed expansion is on the result of input from a public process that began in 2010 and has included extensive public input ….”
- NOAA “Background and Key Messages” document.
Fact 8
- Facts: During the scoping process, only 54 people attended public meetings on Oahu. Only 26 public submissions were received on Oahu. The required public notice provided in the Federal Register failed to list the meeting times for seven (7) out of ten (10) of the public meetings during the scoping process.
NOAA’s Proposal to create a Special Sanctuary Management Area in Maunalua Bay will affect you!
The National Oceanic and Atmospheric Administration (“NOAA”) is proposing sweeping changes to the Hawaiian Islands Humpback Whale National Sanctuary (the “Sanctuary”) which will have a significant impact on Hawaii Kai Marina residents and all users of Maunalua Bay. NOAA’s proposed rule would expand the scope of the Sanctuary in both geographical area and the number of marine species included; however, most, if not all of the additional species added to the Sanctuary are already protected under Hawai’i State law (i.e. whales, turtles, dolphins, seabirds, etc.). See e.g. Hawai’i Administrative Rules §13-124; Hawai’i Revised Statutes § 195D. NOAA’s proposed changes would create an additional layer of Federal regulation, above and beyond the State regulations currently in place. As noted in detail below, these regulations could drastically affect dredging and access both inside and outside of the Hawaii Kai Marina, anchoring of boats and kayaks in Maunalua Bay, placing of race buoys, recreational fishing activities, fireworks displays, and a number of other activities.
Of particular concern is NOAA’s proposal to make Maunalua Bay a Special Sanctuary Management Area (“SSMA”). If this legislation is passed, Maunalua Bay would be the only SSMA in State waters (i.e. within 3 miles of shore). These regulations could have the following impacts:
DREDGING – The regulations would make “Dredging, drilling into, or otherwise altering in any way the submerged lands” prohibited activities within the SSMA. The Director of NOAA would have the ability and the duty to object to dredging activities if he or she believes the activity would have a negative impact on the Sanctuary. The Director would also have the ability to impose, “any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities.”
– ALTERING SUBMERGED LANDS:
- Anchoring – The proposed rules have a provision (§922.184(a)(6)(i)) which allows for anchoring on sandy bottom or substrate other than “Live Rock.” In turn, “Live Rock” is defined as including “Coral, basalt rock, or other natural structure with any living organisms growing in or on the …structure.” According to NOAA’s own maps, only a very small portion of Maunalua Bay has a sandy bottom (about 5-10%). Also, most structures have some form of living organism such that anchoring even on rock could be prohibited.
- Placing or Maintaining Mooring Buoys – The above definitions would also prohibit placing mooring balls connected to the seabed. Mooring balls currently permitted under State law may be permitted; however, most of the existing mooring buoys in use today are not legally permitted. Further, any ongoing routine maintenance of permitted mooring buoys could not be done by anyone other than, “Federal, State, or local authority of competent jurisdiction.”
- This provision in conjunction with the limitations on anchoring will force fishermen and commercial scuba operators to operate in the same limited areas. Generally speaking this concentration of uses will cause a strain on the ecosystems immediately surrounding the limited sandy seabed areas and those areas surrounding legal and permitted mooring buoys (of which there are few). It is also highly likely that this will cause conflict between scuba divers, fishermen, and other users of Maunalua Bay.
- Setting Race Buoys or Other Objects – “Alteration of the seabed” is defined to include “constructing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary.” (emphasis added). This could include an endless list of items including anchors for race buoys, fishing tackle (inadvertently lost), etc.
- Propeller Wash – “Alteration of the seabed” is also defined to include “… otherwise altering a natural physical characteristic of the seabed of the Sanctuary.” This could include disturbing the seabed with boat propellers or jet ski wash. There is no exception to this definition.
- Walking on the reef – As above, these provisions could make walking on the reef at Maunalua Bay Beach Park (at low tide or otherwise) a violation.
– PROHIBITION ON DISCHARGE – NOAA’s plan would prohibit discharging or depositing any material matter into the SSMA, with limited exceptions. The prohibition against discharge would apply to discharge adjacent to the SSMA, “should that discharge subsequently enter and injure a sanctuary resource…”
- Disposal of Cremated Human Remains – NOAA’s proposal includes language that would require a Special Use Permit (“SUP”) for “The disposal of cremated human remains within or into any national marine sanctuary.” The portion of the statute dealing with the SSMA contains an exception to the prohibition on discharge for, “biodegradable materials for traditional ceremonies associated with culturally important customs and usage (e.g. the discharge of leis, paper lanterns),” however, cremated human remains are not listed. Further, to obtain a SUP, an individual must apply for the permit, and, “purchase and maintain general liability insurance, or post an equivalent bond…”
- Discharge from the Hawaii Kai Marina (“Marina”) – As noted above, the prohibition on discharge applies to adjacent areas if such discharge enters the Sanctuary. This could include any materials from a dredging processes within the Marina. It could also potentially include material that passes into the Marina from drainage culverts and out into the Sanctuary. NOAA’s proposal makes no exception as to the original source of any discharge material.
- Introduction or Release of Introduced Species – NOAA’s proposal states that it is “proposing to prohibit introducing or otherwise releasing an introduced species into the SSMAs…” Other NOAA materials state that there is a “threat of introduced species,” specifically stating, “In surveys of marine algae, reef fish, and invertebrates, a higher percentage of introduced species was found in Maunalua Bay (18%), than in Waikīkī (6.9%).Inside Koko marina, the percentage of introduced species reaches 40%, the highest percentage recorded in Hawai‘i.” There is potential that the Hawaii Kai Marina Community Association and its members could be held liable if the higher percentage of introduced species is somehow released into Maunalua Bay.
PROHIBITION ON FIREWORKS DISPLAYS – Hawaii Kai has historically enjoyed fireworks displays in the bay on the 4th of July. NOAA’s proposal would “prohibit possessing or using explosives within the SSMAs, with exceptions for explosives used for valid law enforcement purposes.” NOAA states in its Draft Management Plan, “Fireworks, as a form of explosive, would be prohibited under this regulation,” further stating, “In addition, a variety of contaminants can enter the marine environment through the debris and fallout fireworks produce.” NOAA also mentions that, “Fireworks exploded over the sanctuary can cause light pollution…”
– PENALTIES – each violation can be subject to civil penalty of not more than $100,000, and each violation is subject to forfeiture of property seized in accordance with Section 307 of the National Marine Sanctuary Act. Further, “[e]ach day of continuing violation constitutes a separate violation.”
Make Your Comments Known
Go to: http://www.regulations.gov/#!docketDetail;D=NOAA-NOS-2015-0028 – Click on comments and submit your commentsSign Our Petition
Sign our petition on line: https://www.change.org/p/noaa-david-ige-tulsi-gabbard-oppose-the-expansion-of-the-ssma-to-include-maunalua-bay
Meeting Minutes from the Sanctuary Advisory Council, February 3rd, 2014. Highlights:
- “Malia adds that Maunalua Bay is a candidate site that the sanctuary can test out these regulations, working side by side with the State. The sanctuary is exploring but needs to be careful.” (p.6)
- “Original boundaries were very controversial, so the governor’s intention was that this was going to be a trial and every five years we would do a management plan review to assess how it was going (which we are doing now). Malia adds that our transition to a fully functioning ecosystem-based management site will take time, and there are many competing interests in play. It is not our intention to protect all of our waters; we can only work where we have support from local communities and stakeholders.” (p.4)
- “However, people are still concerned about the proposed regulations, so [Terri Leicher] advises moving forward with caution. If there are changes, they need to be aligned with what has been happening recently. Otherwise we might lose everything we have started to gain.” (p.5)
- Malia notes that the Ma‘alaea proposal is non-regulatory for now. We would leverage partnerships. Mālama Maunalua has a lot of momentum, and has done a lot of work with their communities and strategic plan. The sanctuary is not reinventing the wheel. Sanctuary management sat down with the executive director [of Mālama Maunalua] to identify an education area, supported a community based strategic plan, and identified some things that we can support in their initiative. The Polynesian Voyaging Society (PVS) will also be relocating to Maunalua Bay. PVS would like to partner on a non-regulatory area. The sanctuary has a full range of alternatives and this is one that will likely move forward.” (p.5)
- “Walter Ritte states that he is worried because his community is always battling with how to provide for their families, especially with diminishing resources. His community is concerned that state and federal resources are not being used for the best of the people. All these talks about boundaries and special areas won’t be taken seriously by locals, as they do not believe that the sanctuary can manage resources correctly in the first place. The management plan is getting too complicated with boundaries and regulations and the public is not going to understand that. Malia responded that this is what the SAC meetings are for; people are going to ask you questions and we’re trying to give you as much information as possible so you can give them answers.” (p.5)
- “[Mālama Maunalua] has identified three primary threats to the health of the bay: invasive algae, pollutant runoff, and overfishing.”
- [Mālama Maunalua]’s issues are similar to those of so many other communities, and a partnership with the sanctuary can propel them to the next level of engagement. Malia re-iterates that everything will be in the draft management plan.” (p.7)