Public Comment Summary, Discussion, and Recommendation
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Public Comment Summary, Discussion, and Recommendation on the Proposed Repeal of 5 AAC 95.310 Repeal of the Prohibition of Personal Watercraft in the Kachemak Bay/Fox River Flats Critical Habitat Areas The department received 2,723 comments from some 1,270 individuals and organizations, including petitions and letters with multiple signatures, on the proposed regulation to repeal the prohibition of personal watercraft (PWC) use in the Kachemak Bay and Fox River Flats Critical Habitat Areas during the open public comment period. 1,005 commenters opposed repealing the regulation, and 1,677 individuals supported a repeal. 41 comments were either for some compromise, inconclusive, or commenting on the process or something unrelated. Additionally, some 42 comments were submitted after the public comment period ended, including two petitions. Key points of those opposed to repealing the ban included concerns about increased pollution, disturbance to wildlife and other people, and habitat damage. Some comments stated that PWC use is incompatible with local values and traditional uses, such as wildlife viewing and solitude. Numerous commentators stated that they believe PWC use would harm the economic viability of established businesses, such as wildlife tour operations, lodges, and kayaking and hiking guides. Some comments expressed concern regarding the danger operating a PWC poses to the operator and potential danger to other craft. Other people commented that PWC use is incompatible with the special designations of Kachemak Bay as a critical habitat area, state park, state wilderness park, and national estuarine research reserve, as well as the fact that this area is within the Western Shorebird Reserve Network. Many comments stated that PWCs are “thrillcraft”, not utilitarian, i.e. used for fishing or to go from point “A” to point “B” but rather are used to “spin circles and jump wakes.” Many comments were concerned with PWCs speeds and maneuverability and their perceived ability to travel in shallower waters. And one comment stated that repealing the ban may harm the Lesser Sandhill Cranes that migrate to an area near her home in Sacramento, California. Key points of supporters of repealing the ban include comments that PWC pose no significant risk to the habitat or wildlife and that the majority of late model PWCs now have 4 stroke motors and comply with the 2001 EPA emissions standards. Other comments state that the science is inconclusive, and no scientific studies have ever been carried out on PWCs in a northern subarctic marine environment. Many commenters say repealing the ban will provide increased access to publicly owned areas. Other comments said PWCs are registered boats and subject to the same regulations as any other boats, and there are other laws in place to protect wildlife (e.g., Marine Mammal Protection Act). Other comments claim that that the thousands of other boats including cruise ships and the Alaska Marine Highway that use Kachemak Bay may cause more wildlife disturbance than the relatively few PWC that would be anticipated to operate within the special areas if the ban were to be repealed, and that PWC use will likely never be very high because of the harsh environmental conditions. Several commenters stated that they do not use their PWC as "thrill" craft, but as a basic means of transportation and for utility purposes like fishing or wildlife viewing. Other comments stated that lifting this prohibition could help the economy by bringing more visitors to the surrounding communities. Discussion and Recommendation The limited scientific studies on PWC use are inconclusive, and none apply directly to a northern marine environment like Kachemak Bay Critical Habitat Area. Former reviews of literature speak to behaviors of users and potential impacts of PWC, not documented impacts. It is important to note that in 2014, Governor Sean Parnell signed a bill into law that removed the Port and Harbor of Homer from the critical habitat area therefore 5AAC 95.310 doesn’t apply there. Throughout this discussion, from the original proposal and recurring in each iteration, there has been the acknowledgment that scientific data is limited, findings have been contradictive, and none have been carried out in a marine environment comparable to Kachemak Bay. There have been multiple references to the opinion of “many biologists and resource managers” and there have been many references to “potential” for damage to habitat. Most often comments supporting maintaining the ban have cited the PWCs ability for high speed, quick maneuverability, and ease of access in shallow waters that they believe could impact the habitat crucial for the perpetuation of fish and wildlife. Those same abilities can be attributed to other non-PWC watercraft. PWCs ability to travel in the shallow water is another concern for potential impacts, but it is important to note that although a PWCs jet drive potentially allows it to operate in shallow water, it’s still a fiberglass hull and one that could be easily damaged contacting rocks and obstacles even at a modest speed. There are however numerous jetboat models designed expressly to travel in shallow waters, at speed in excess of 50 mph including the SJX Jetboats and the Skinny Water compact jet boats to name a few, that are highly maneuverable, able to operate at high speeds, and have aluminum hulls, sometimes coated in K5 Polyurea intended to make them “slide” over rocks and obstacles. Granted these are generally used as river boats but they are not currently excluded from the critical habitat area and can be used there. In the marine environment numerous jet driven bow pickers routinely enter shallow waters during commercial fishing operations. Earlier discussions in this process recognized that the PWC industry was evolving. Today there are models designed for utilitarian purposes like fishing and touring. Most PWCs are now 4 stroke and much quieter than the models proceeding them. It is important to note that the U.S. Coast Guard defines a PWC as a “craft which is less than 16 feet in length and designed to be operated by a person or persons sitting, standing or kneeling on the craft rather than within the confines of a hull.” One recent new PWC development is the Sea-Doo Cart, which is the same sized hull, same size engine, jet drive yet the driver sits “inside” the hull. Because this design likely excludes this vessel as a PWC, by definition, it could currently be legally operated in the area. The Kachemak Bay and Fox River Flats Critical Habitat Areas were established to protect and preserve habitat areas especially crucial to the perpetuation of fish and wildlife, and to restrict all other uses not compatible with that primary purpose. The department seriously considers proposals for activities within these areas, specifically regarding how activities may affect important habitat values; 5 AAC 95.310, the ban on personnel watercraft, is an overburdensome regulation not supported by any scientific studies that have documented impacts to Kachemak Bay or similar environments and a key part of our stated mission is to improve access to the Critical Habitat Area for fishing, hunting, recreating, and wildlife viewing. Because of the lack of conclusive scientific data specific to PWCs in similar environments, the evolution of emissions and noise reduction, and the advancements of other watercraft blurring the lines of a PWC, there appears to be no difference between the use of PWC and other watercraft regarding the potential impacts to habitat within these special areas. Therefore, repeal of the prohibition of PWCs is justified. During the current the Kachemak Bay Critical Habitat Management Plan revision effort, additional policies could be developed to manage boating activities with more continuity to protect the habitat with no wake zones, exclusion areas, and other policies applicable to all watercraft, in areas determined to be potentially sensitive to the operation of watercraft. Folder Commenter Comment Commissioner's Office Response To Comment 1 Friends of Dear Mr.Green Commissioner and assistant to the commisssioner both read and Kachemak Bay Friends of Kachemak Bay State Park opposes the lifting of the Personal Water Craft (PWC) ban in Kachemak Bay. considered comment in final decision. State Park We have heard arguments for and against PWCs for the last 20 years and there has been no new information that has changed our view that PWCs disturb wildlife and upset the general Park experience. We understand that you have received many letters and emails in strong opposition to the lifting of the ban. There is little more that we can add. Please register our voices in the "NO” column. Respectfully, Mako Haggerty, chair Friends of Kachemak Bay State Park is a local non-profit whose mission includes educating Park visitors and supporting Park volunteers. Our current membership stands at 107. 1 Audubon Alaska See message: Audubon Alaska comments on proposed repeal of 5 AAC 95.310.msg in PWC1 Commissioner and assistant to the commisssioner both read and considered comment in final decision. 1 Center for January 21, 2020 Commissioner and assistant to the commisssioner both read and Alaskan Coastal To: Commissioner Doug Vincent-Lang, Alaska Department of Fish and Game considered comment in final decision. Studies Cc: Rick Green, Alaska Department of Fish and Game On behalf of the Center for Alaskan Coastal Studies (CACS), I am writing in opposition to any change to 5 AAC 95.310, with regards to the prohibition of the use of personal watercraft in the Fox River Flats and Kachemak Bay Critical Habitat Areas (CHA). We strongly oppose any change that would allow personal watercraft use and management in this critically important habitat for marine life. CACS is a non-profit organization dedicated to promoting marine and coastal education and stewardship of Kachemak Bay through place-based ecology education.