Wednesday, February 24, 2010

NOAA Has Published Public Comments on Proposed Vessel Regulations

Yesterday, NOAA published the public comments received that were related to the proposed vessel regulations issued by the agency on July 29, 2009. An overview of this topic was discussed in a two part series earlier in my blog, which you can read by clicking here. (Part 1) (Part 2)

The comprehensive overview provided by NOAA yesterday allows the public to view not only every comment provided by the public on the proposed vessel regulations, but it also provides a history of the events leading up to and following the release of the regulation proposal.

During the public comment period, 704 unique comments were submitted via letter, e- mail and the federal e-rulemaking portal. Comments were submitted by concerned citizens (570 comments); whale watch operators and naturalists (72 comments); research, conservation and education groups (23 comments); federal, state and local government entities (19 comments); and various industry and other associations (20 comments). All written comments received during the comment period are posted on the NOAA Fisheries Northwest Regional web page: Dolphins-Porpoise/Killer-Whales/ESA-Status/Orca-Vessel-Regs.cfm. 

In addition to unique comments, more than 2,400 form letters were submitted. Many form letters were supportive of maintaining the current 100 yard viewing distance, and some form letters included personal comments in addition to the form letter language. The agency received five petitions that included more than 1,300 names and signatures ranging from 100 to 740 signatures for each. The petitions were split between support for the proposed regulations and opposition to the proposed regulations.

Many of the oral and written comments from individual members of the public were short general statements that: 

1) supported the proposed regulations and killer whale conservation, 
2) disagreed with the proposed regulations, or 
3) disagreed with only the proposed no-go zone. 

About 50 of the individual written public comments included substantive information, such as specific suggestions to alter the proposed regulations, new information, or additional alternatives to consider. Eighty-six of the individual written comments focused entirely on issues relating to how kayaks are considered in the proposed regulations. (You can see my comments to NOAA on page 79 of this attachment.)

NOAA Fisheries received a range of comments from the commercial whale-watching industry including owners, operators and naturalists. The commercial whale-watching community expressed a number of concerns about impacts to their businesses, from increasing the viewing distance from the current 100-yard guideline to a 200-yard regulation. The whale-watching community provided support for a “go slow zone” in lieu of the no-go zone. The most common form letters were signed by commercial whale- watch participants and supported the position of the Pacific Whale Watch Association in maintaining the current 100-yard viewing distance. Additional industry associations and groups representing fishing, boating, transportation, and petroleum interests provided detailed information on potential impacts to their groups from the proposed regulations, and suggestions for revised language in the rule and for modifications to the exceptions.

Research, education, and conservation groups generally supported the proposed regulations, and in some cases identified additional measures that could be taken to further protect the whales. Researchers provided references to scientific information, data and peer reviewed scientific papers regarding vessel impacts to whales.

The government entities commenting included federal, state, county, tribes and other local organizations. The government comments generally supported regulations to protect killer whales, including the 200 yard approach rule, and offered a number of suggestions to adjust the proposed regulations, particularly the no-go zone. The comments suggested modifications to boundaries of the zone, additional exceptions to the zone, and sources for additional information on impacts of the zone to user groups. Comments from tribes suggested wording changes to the exception for treaty Indian fishing vessels. The government comments also suggested consideration of speed restrictions, permit systems, and coordination with Canada on comparable regulations in Canadian waters.

Issues and Concerns
Similar to the initial comments submitted on the advance notice of proposed rulemaking, there was support for a range of options. The oral comments provided at the public meetings and written comments addressed many similar issues. 

Some specific comments on the three elements of the proposed rule were:

200 yard approach rule - Comments supported the current 100-yard guideline, a 100 yard approach regulation, a 150-yard approach regulation, the proposed 200-yard rule, and approach rules at greater distances (400 yards to miles from the whales).

Proposed no-go zone - A large number of comments addressed only the no-go zone and did not refer to the other parts of the proposed regulations (i.e., 200-yard approach or park in the path regulations). The majority of comments pertaining only to the no-go zone were opposed to the zone. NOAA Fisheries also received comments that supported the proposed no-go zone on the west side of San Juan Island, smaller no-go zones, and larger no-go zones that include other shoreline areas.

Parking in the path - There were fewer comments on the proposed prohibition on parking in the path of the whales. A common comment identified the challenges of boaters identifying the whale’s path and difficulties in enforcing this regulation.

NOAA Fisheries received a number of comments supporting inclusion of the speed restriction analyzed in the draft environmental assessment. There were also comments that suggested alternatives that were previously considered, but not fully analyzed in our draft, such as permits or certification programs, days off for the whales (i.e., no whale- watching Wednesdays), and noise level standards for vessels.

Some common themes throughout the oral and written comments were: 

A need for increased enforcement to protect whales and questions about how new
regulations would be enforced 

The importance of strong education programs to raise awareness about any new

Questions about the science relating to vessel impacts on the whales used to
support the regulations, particularly impacts from kayaks 

Deficiency in the analysis of impacts on particular stakeholder groups such as the
recreational fishing community now using the proposed no-go zone, and 

Many comments encouraged NOAA Fisheries to focus recovery efforts on other
threats such as prey availability, contaminants, and sonar, rather than using resources to address vessel effects.

NOAA Fisheries appreciates the thoughtful and detailed comments submitted during the public comment period and will consider these comments in moving forward with final
regulations. The comments will also be available for public review. Because of the large number of oral and detailed written comments, NOAA Fisheries will need considerable time to thoroughly review all of the comments, follow up on offers to provide additional information, incorporate new information and comments into the environmental assessment, and continue to meet with stakeholder groups in developing a final rule. NOAA Fisheries will consider how to address the contradictory and often opposite comments submitted by groups and individuals with different perspectives. Final regulations will include responses to the comments, and the final National Environmental Policy Act document will also incorporate and respond to substantive comments. In addition to final regulations, NOAA Fisheries will develop an implementation plan that will include enforcement, education and methods for evaluating effectiveness.