Public Pushes Back Against Proposed Bay Closure Rule

A few dozen people called for more education and stricter enforcement of rules already on the books in order to protect spinner dolphins, rather than closing five bays around Hawaiʻi and Maui.

The proposed rule, which would establish time-area closures of some Big Island bays in order to protect the popular mammal while they rest, was the focus of a virtual public hearing on Thursday night, where a majority of more than 50 people who testified called the measure premature and heavy-handed.

“We’re not the ones harassing the dolphins,” Big Island resident Fredrick Smith said, adding that it was tourists who were guilty of disturbing the animals while they rested in shallow waters.

To the tourists’ credit, they probably do so because they are unaware of the impact of their actions as no education seems to be done on the subject, he said. Education and enforcement of rules on the books would go a long way to prevent that, whereas a rule change closing the bays would simply punish locals who already know better.

“I keep wondering, where is the enforcement?” he asked.

The rule, brought forward by the National Oceanic and Atmospheric Administration, or NOAA, was announced Sept. 28 and is the second of two changes of regulation aimed at protecting the popular, nocturnal mammal from too much contact with people.

As of Oct. 28, U.S. regulators banned swimmers or boaters from getting within 50 feet of spinner dolphins within 2 nautical miles of shore. Swimming with dolphins has long been popular tourist activity around the islands.

The second, proposed rule would implement mandatory time-area closures from 6 a.m. to 3 p.m. daily in essential daytime habitats for spinner dolphins. The affected areas on Hawaii Island would be Kealakekua Bay, Hōnaunau Bay, Kauhakō Bay (Ho‘okena), and Makako Bay, as well as at La Perouse Bay on Maui. 

Spinner dolphins get their name because of their habit of leaping from the water and spinning in the air. Known as playful animals, they also hunt in offshore waters at night and use protected bays and areas close to shore to sleep, socialize, hide from predators and nurture their young.

Kevin Brindock, deputy assistant regional administrator for The National Marine Fisheries Service, said the closures would be beneficial in reducing stressors for dolphins, whose behaviors and patterns are impacted negatively with too much human interaction. Such activity in bays prevents dolphins from even approaching the areas they rely on to raise their young and otherwise survive. The effects of these disturbances is made more acute given the relatively small populations of spinner dolphins that call the Hawai‘ian Islands home.

There are an estimated 617 spinner dolphins around Hawai‘i Island, 601 around Kaua‘i and Ni‘ihau, and around 355 around O‘ahu and the other islands.

“All these populations are small populations,” Brindock said.

The entirety of the bays would not be closed, should the rule go through, but a bulk of the area in each would be. For example, the popular Two-Step swimming area and boat ramp at Hōnaunau Bay wouldn’t be affected, nor would the boat ramp, beach area or Captain Cook monument in Kealakekua Bay. Designated boundaries would be designated through geographical coordinates by a combination of buoy and land markers.

Details on enforcement practices, or what violators would be subjected to, would be worked out in later stages should the rule pass. But state and federal agencies have been looking into the issue for roughly a decade, and time-use closures have proven beneficial elsewhere, Brindock said.

“There’s a depth of information there,” he said.

An updated economic impact statement of a potential rule change will be made available in the near future, he added.

But some members of the public took exception to the lack of hard data they felt was available to them, namely that the overall trend of spinner dolphin population numbers hasn’t been included over the last 10 years, what other factors, like sonar testing by the military, has on the dolphins, and what exactly such a rule change would do to local touring and ocean companies.

Some felt ocean use to the public was being restricted based on assumptions.

“This is a sham,” Pat Borge, of Maui, said. “Your job was to enforce the rules already on the books … I can’t use the ocean? … It’s not right what you’re doing.”

Instead, people asked NOAA to let the swimming ban rule that just went into effect sink in before implementing any other rule. That, combined with education, outreach and enforcement, will protect the dolphins and keep the bays open for round-the-clock use.

“I really think there is a lot of other things we could be doing,” said Smith, who called the rule change “premature and heavy-handed.”

“This is ridiculous and unacceptable,” said Ru Carley, of Hōnaunau.

Exceptions to the rule would primarily be for emergency situations, permitted canoe races, cultural canoe fishermen who catch for their families, selves, and community, private vessels who want to access their personal property and permitted government vessels. The rule would include scuba divers.

Brindock said NOAA will consider all public testimony over the next 90 days before moving forward with a decision. Typically, it takes about a year for a proposed rule, to go into effect.

Testimony can be submitted electronically here.

Mail testimony can be sent to Brindock at the Pacific Islands Regional Office, 1845 Wasp Blvd. Bldg. 176, Honolulu, HI 96818.