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Enhancing Protections for Hawaiian Spinner Dolphins to Prevent Disturbance Draft Environmental Impact Statement and Regulatory Impact Review

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Enhancing Protections for Hawaiian Spinner Dolphins to Prevent Disturbance Draft Environmental Impact Statement and Regulatory Impact Review Pacific Islands Regional Office Enhancing Protections for Hawaiian Spinner Dolphins To Prevent Disturbance Draft Environmental Impact Statement and Regulatory Impact Review AUGUST 2016 Enhancing Protections for Hawaiian Spinner Dolphins To Prevent Disturbance Draft Environmental Impact Statement and Regulatory Impact Review August 2016 Responsible Agency: Department of Commerce National Oceanic and Atmospheric Administration National Marine Fisheries Service Pacific Islands Regional Office NOAA Inouye Regional Center 1845 Wasp Blvd., Bldg 176 Honolulu, HI 96818 Contact: Michael D. Tosatto, Regional Administrator [email protected] (808) 725-5001 Abstract: The National Marine Fisheries Service is proposing to adopt regulations to enhance protections for Hawaiian spinner dolphins from various forms of take from human activities that cause harassment or disturbance and reduce the impact of viewing and interaction on these animals. This action is being undertaken pursuant to the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq., and its implementing regulations. Alternatives to the proposed action and potential environmental impacts are discussed in this Draft Environmental Impact Statement (DEIS). The alternatives, or the actions considered as part of the alternatives, are not expected to have measurable negative impacts on spinner dolphin populations, but may have socio-economic impacts on commercial tour operators operating in certain geographic locations. The actions considered are not expected to result in irreversible or irretrievable commitments of resources. This DEIS is a stand-alone document and does not supplement an earlier National Environmental Policy Act document. Comments on this DEIS must be received by October 25, 2016. (This page intentionally left blank) Executive Summary The National Marine Fisheries Service (NMFS) is proposing to adopt regulations to reduce the threat of take to Hawaiian spinner dolphins, including harassment and disturbance caused by dolphin-directed activities that are concentrated in coastal waters (within 2 nautical miles (nm) (3.7 kilometers (km) of shore) and in designated waters between Lanai, Maui, and Kahoolawe), and to reduce the impact of viewing and interaction on resident stocks. This action is being undertaken pursuant to the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq., and its implementing regulations. These regulations are necessary to address chronic interaction and viewing impacts on Hawaiian spinner dolphins. Proposed regulatory measures would help prevent take from occurring, including harassment and disturbance, and would include approach regulations (for persons and vessels) for Hawaiian spinner dolphins in marine areas where viewing pressures are most prevalent, including 2 nm (3.7 km) of the Hawaiian Islands and the waters between the islands of Lanai, Maui, and Kahoolawe. Proposed approach regulations would help ensure public compliance by providing clear notice of prohibited conduct that results in take, including harassment and disturbance. NMFS has prepared this Draft Environmental Impact Statement (DEIS) in accordance with the National Environmental Policy Act (NEPA). The document considers the environmental consequences of alternative actions to enhance protections for Hawaiian spinner dolphins from forms of “take” when spinner dolphins are engaged in important daytime fitness-enhancing behaviors. Under the MMPA, it is unlawful for any person, vessel, or other conveyance to “take” any marine mammal in waters under the jurisdiction of the United States (16 U.S.C. 1372). The term “take” means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal (16 U.S.C. 1362). Thus the prohibition against take of marine mammals includes acts that “harass” the marine mammal (16 U.S.C. 1362(13)). Harassment means any act of pursuit, torment, or annoyance that has the potential to injure a marine mammal in the wild or has the potential to disturb a marine mammal in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [16 U.S.C. 1362 (18)(a); see also 50 C.F.R. 216.3 (Level A and B Harassment)]. NMFS’ regulations implementing the MMPA further describe the term “take” to include “the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal” (50 CFR 216.3) (hereinafter referred to as “disturbance”). To reduce take resulting from human activities, NMFS is proposing to adopt regulations implementing the preferred alternative to do the following: prevent people and vessels (including motorized, non-motorized, and self-propelled vessels) from swimming with and approaching within 50 yards (approximately 46 meters (m)) of Hawaiian spinner dolphins within 2 nautical miles (nm) (3.7 kilometers (km)) of each of the main Hawaiian Islands (MHI) and in designated waters between the islands of Lanai, Maui, and Kahoolawe. The analysis of alternatives and consequences will inform NMFS’ decisions on actions taken under the MMPA to reduce the take of Hawaiian spinner dolphins and to prevent long-term adverse impacts to resident spinner dolphin populations in Hawaii as a result of viewing and interaction. The public is invited to ENHANCING PROTECTIONS FOR HAWAIIAN SPINNER DOLPHINS I DRAFT EIS comment on the information contained in the DEIS and provide any additional information that may assist the agency to make an informed decision. In 2010, NMFS recognized five island-associated stocks and one pelagic (open sea) stock of Hawaiian spinner dolphins, and identified genetic distinctions and unique geographic residency patterns as a reason to separately manage the stocks located throughout the Hawaiian Islands (Carretta et al. 2011). Three of the five island-associated stocks (Kauai-Niihau stock, Oahu- Maui County stock, and the Hawaii Island stock) are found near the main Hawaiian Islands (MHI) and thus considered resident stocks. These three stocks reside in waters surrounding their namesake island(s) out to approximately 10 nm (18.5 km) (Hill et al. 2010) and, although none of the stocks are depleted or strategic, population estimates for each stock are small. Island- associated spinner dolphins, such as the three stocks in the MHI, have adapted complex social structures and behavioral patterns linked to specific habitats that support their high energetic demands. People often characterize the daily pattern of spinner dolphins as “working the night shift” because the energetically demanding task of foraging is accomplished nightly when spinner dolphins move offshore in large groups to feed. During the day, spinner dolphins routinely return to areas closer to shore to socialize, nurture their young, and rest in preparation for nightly foraging. Throughout the day, these dolphin groups visit specific habitats that are located along the coastlines of the MHI. NMFS refers to these areas as “essential daytime habitats” because the areas offer physical characteristics, such as close proximity to foraging areas and sand bottom habitat, which support spinner dolphin ecology by decreasing the travel distance necessary for nightly foraging bouts and increasing the dolphins’ ability to visually detect predators during daytime resting behaviors. The spinner dolphins’ regular and predictable use of essential daytime habitats in near-shore locations makes these dolphins easily accessible to people seeking wildlife viewing and interaction opportunities, and some essential daytime habitats have become targets for spinner dolphin-directed activities. In 2001, the International Fund for Animal Welfare (IFAW) reported an emerging dolphin- watching industry in Hawaii as whale-watch operators looked for a year-round tour option (O’Connor et al. 2009). As of 2014, NMFS estimated that upward of 70 tour operators provide tours that enable direct interactions with spinner dolphins in the MHI, such as swim-with tours, and over 100 commercial boat tour and kayak tour operations may opportunistically view these animals. In addition to commercial tour operations, visitors, local residents, and participants in dolphin-associated retreats may also independently access Hawaiian spinner dolphin populations from shore by swimming, kayaking, paddle boarding, or using other watercraft. Viewing marine mammals in their natural habitat can be an educational and enriching experience if conducted safely and responsibly from a distance. However, within Hawaii’s near-shore waters and especially within essential daytime habitats, spinner dolphin-directed activities, such as those that closely approach, swim-with, pursue, interact, or attempt to interact with the dolphins, have the potential to disturb the dolphins by disrupting daytime behaviors. Response to disturbance varies among individuals, but diverts time and energy from fitness-enhancing activities and may, over time, result in negative impacts to the fitness of individuals and/or resident populations. For example, lack of consistent, undisturbed resting periods can reduce the amount of energy available for a spinner dolphin to engage effectively in foraging activities at night. Over time, this can result in overall poor body condition, which reduces the dolphin’s ability to fight off disease, successfully reproduce, protect itself from predators, or successfully rear its young.
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