On November 4, 1992, then-President Bush signed the Oceans Act of 1992, which established the Hawaiian Islands Humpback Whale National Marine Sanctuary. Less than a year later, the sanctuary appears more endangered than the whales it was intended to protect.
The state of Hawai’i provided the impetus for the sanctuary. Yet in September of this year, Harold Masumoto, director of the governor’s Office of State Planning, met in Washington with officials of the National Oceanic and Atmospheric Administration, informing them that the state would not support an extension of the deadline set in the legislation for completion of the sanctuary management plan.
According to Masumoto, who announced his meeting with NOAA to the Coastal and Ocean Management Policy Advisory Group on October 6, the state believes that NOAA cannot meet the May 15, 1994, deadline for preparation of a management plan and a draft environmental impact statement. And if that deadline cannot be met, Masumoto said he told NOAA, then NOAA should inform the state now so that the state does not spend any more money on a doomed project.
Happier Times
Before Masumoto’s announcement, state support for the whale sanctuary had seemed robust enough. As late as July 12, 1993, Masumoto, on behalf of the state of Hawai’i, signed a memorandum of agreement with NOAA, committing the state to work with the federal agency in preparing a management plan, implementing regulations for the sanctuary, and ensuring public participation in the process.
The agreement states it is to be in force for two years “unless agreed to otherwise by the parties, or terminated by 30 days’ advance written notice by either party.” One of the provisions in the agreement is that both the state and NOAA shall “meet all target dates set forth in the attached work plan agreement to the maximum extent possible.” That work plan contains the May 1994 deadline cited by Masumoto.
Under the best of circumstances, meeting the milestones set in the workplan would have been difficult. But immediately following the signing of the memorandum of agreement, events transpired that make achievement of its goals all but impossible. Rafael Lopez, the NOAA official who had overseen most of the scoping sessions held last spring in Hawai’i, left the agency. NOAA’s local coordinator, Chris Evans, departed. Their replacements have been struggling to get up to speed on the project, but progress in carrying out the workplan has inevitably slowed.
A Long History
The push for a whale sanctuary has its beginnings in the 1970s. In December 1977, the waters between Maui, Moloka’i, Lana’i and Kaho’olawe – the principal breeding and calving area for wintering humpback whales – were nominated for sanctuary status under NOAAs National Marine Sanctuary Program.
In March 1982, NOAA determined the area to be an “active candidate” for sanctuary designation. In January 1984, NOAA released a draft Environmental Impact Statement and management plan for the proposed sanctuary. Absent state support for the project at that time, however, NOAA suspended further work on the humpback whale sanctuary in Hawai’i.
In October 1990, the political situation had changed. The protection of Kaho’olawe had become a popular cause, and Hawai’i’s congressional delegation, with the support of the Waihe’e administration, was able to get Congress to direct NOAA to study the feasibility of establishing a sanctuary in the waters around Kaho’olawe. In December 1991, the feasibility study was published.
The report contains the following findings:
“1) [T]here is preliminary evidence of both biological and cultural/historical resources adjacent to Kaho’olawe Island to merit further investigation…; however, this evidence does not conclusively support a finding that these resource values are of special national significance. Absent this finding, the site does not meet the standards and criteria set … for designation as a national marine sanctuary;
“2) [T]here are additional marine areas within the Hawaiian archipelago that merit further consideration as possible components of a multiple-site national marine sanctuary; and
“3) [T]he National Marine Sanctuary Program could enhance marine resource protection in Hawai’i.”
The report concluded by stating that “NOAA will proceed with further study of the marine environment adjacent to Kaho’olawe Island… as one component of a multiple-site, multiple-resource sanctuary, and if appropriate, it will be placed on the NOAA Site Evaluation List.”
Second Time ‘Round
Without waiting for NOAA’s “further study,” Congress – with the blessing of the state administration – last fall passed (and Bush signed) legislation designating a national marine sanctuary for humpback whales in Hawai’i. The area of the designated sanctuary includes waters out to the 100-fathom isobath around Lana’i Maui, and Moloka’i – except for the area within three nautical miles of Kaho’olawe – and includes waters to the 100-fathom isobath off the Kilauea National Wildlife Refuge on Kaua’i. (Kaho’olawe waters were excluded because of concerns over unexploded ordnance, the result of the island’s use for half a century as a bombing range for U.S. armed forces. The law does provide for their inclusion in January 1996, if the U.S. secretary of Commerce approves.)
Two provisions of the legislation appear to have helped drive the humpback whale sanctuary into the ground. The first one is the requirement that the secretary of Commerce is to prepare an EIS, management plan, and regulations for the sanctuary within 18 months of the date the law was enacted – May 1994, in other words. NOAA’s own rules anticipate this process requiring at least twice that amount of time.
The second is the open-ended scope of the sanctuary. While humpback whales are to be protected as a primary purpose, NOAA is directed also to identify other marine resources and ecosystems of national significance. In scoping hearings last spring, discussion over the scope of the sanctuary management plan generally revolved around whether it should address “single-species” (humpback whale) protection or “multiple-species” protection.
‘Foot-Dragging’
The “multiple-species” option complicated matters considerably, according to some state staff. Had NOAA simply dusted off the draft EIS and management plan prepared for a humpback whale sanctuary in 1984, meeting the deadlines set in the workplan would have been a straight-forward matter. “You can take the old EIS, update it, and build on some excellent work that’s already been done,” said Dick Poirier of the OSP. “For example, there’s the National Marine Fisheries Service’s recovery plan for the whale” and other studies.
Instead, he continued, “NOAA got hung up on boundaries. If the whole state is to be considered out to the 100-fathom isobath, they think they need a huge study.” For that, NOAA has neither the time nor the money. It was the state’s hope that NOAA would prepare the single species EIS and management plan initially then consider other issues in the development of its resource protection plan.
What seems to have triggered Masumoto’s shot across NOAA’s bow was NOAA’s failure to meet one of the first deadlines in the sanctuary workplan – that calling for preparation of a “discussion paper” by August 15. When NOAA produced nothing, the Office of State Planning submitted its own draft to NOAA – nothing fancy, but, according to Poirier, “something on paper” that would keep the ball rolling. By the end of October, the state was still waiting to hear from NOAA.
According to Sessings, NOAA is “currently in the process of answering the state’s draft discussion paper.” She acknowledged that NOAA was in a “bureaucratic morass” and that, “We’re not as quick as the state would like us to be.” But, she said, “There’s a dilemma within our agency with respect to our own position on this project.” NOAA continues to consider whether the sanctuary should provide for single- or multiple-species protection, feels unduly pressured by the foreshortened time frame, and, on top of everything else, “our budget for this year is still not approved.”
A Hot Potato
According to Poirier, the state is still committed to the sanctuary idea. “We need it now more than ever,” he said. “There’s more people as well as more whales out there.”
However, he stressed the need for urgent action. “If this isn’t done by the time the governor leaves office, it won’t get done. If it’s done under the auspices of this administration, then the governor can bring all the various interests together” in support of the sanctuary. This, Poirier added, would be something no successor could do.
Actually given the responses to the sanctuary proposal NOAA got when it held public scoping meetings across the state last spring, one has to wonder if even Waihe’e could pull it off. At a hearing on Maui, as Poirier noted, not one person supported the sanctuary.
The response of the Maui community was not typical. Elsewhere support was strong, with many favoring expanded boundaries along the entire North Shore of Kaua’i and along the west coast of the island of Hawai’i.
Masumoto denied that the strong opposition of tour-boat operators and fishermen had anything to do with his warning to NOAA. Still, the voices of the Maui tour boar industry (including its whale-watching fleet) and the commercial and recreational fishermen (fearful of “another layer of regulation”) are difficult to ignore, even by a governor in the last years of his final term.
Volume 4, Number 5 November 1993
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