Wednesday, December 3, 2008

Whale Testimony for the last OTF Meeting Today

The last Ferry Oversight Taskforce Committee meeting is today. Here is a bit of testimony that will be submitted today:

Public Testimony
Gregory D. Kaufman, President, Pacific Whale Foundation
Oversight Task Force meeting, Honolulu, Hawaii, December 3, 2008

"We would like to present three items for consideration:

1. Proposed Route Change: Attached please find a “Proposed Route” for the Hawaii Superferry (HSF).

The ‘Proposed Route’ is 122 miles long, comparable in length to HSF’s ‘Regular Route’ of 117 miles and the ‘Alternate Route’ of 113 miles.

Avoidance of Penguin Bank is key to protecting Hawaii’s endangered humpback whales. HSF’s ‘Alternate Route’ traverses predominately through this whale dense area. In 1994 University of Hawaii Sea Grant College Program was contracted to prepare “A Site Characterization Study for the Hawaiian Islands Humpback Whale National Marine Sanctuary” for the National Oceanic and Atmospheric Administration. Chapter 4 of the report is entitled “Cetaceans in Hawaiian Waters” and was authored by Dr. Joe Mobley (pages 47 -61). Dr. Mobley summarizes the following findings:

“7. The combined aerial survey results show clear preferences of humpback whales for different island regions. Ranked in decreasing order of sighting rate (pods/hr of survey), the regions are as follows: Penguin Banks, four islands region (Maui, Molokai, Lanai & Kahoolawe), Kauai and Niihau, Hawaii and Oahu.
8. Humpback whale pods with calves show clear preferences for the shallow waters of the four islands and Penguin Bank regions. This preference has been stable for 15 years of surveys.”

In other words, Penguin Bank not only hosts the highest density of whales in Hawaii, it also is preferential for mother calf pods as well – the lifeblood of the population. Any routing by HSF must avoid this whale rich area.

RECOMMENDATIONS (From December – May):

• The ‘Proposed Route’ should be used exclusively from December to May during the humpback whale breeding season. The ‘Proposed Route’:
• a. Avoids the whale dense area of Penguin Bank;
• b. Reduces transit time in Hawaiian Islands Humpback Whale National Marine Sanctuary; and
• c. Minimizes the amount of time HSF spends in waters 100 fathoms or less.

[Please note the attached ‘Proposed Route’ includes the latitude and longitude waypoints for each leg of the route (in boxes next to waypoints), which can easily be incorporated into the Oversight Task Force’s final recommendations.]

2. 500 Yard Approach Distance:

The hallmark of HSF Whale Avoidance Plan has been its repeated claim to be able to maintain a 500-yard approach distance to any humpback whale pod. In HSF’s PUC application for a Certificate of Public Convenience and Necessity (Docket No. 04-0180, filed December 8, 2004) they provided the following answer to the PUC’s order 21391 (10/1/04) “Reply of Statement of Position” with regard to whale approaches (IVb, page 16):

“Applicant clarifies that its policy regarding approach to marine mammals adheres to the National Oceanic and Atmospheric Administration (“NOAA”) policy for right whales, which prohibits approach within 500 yards, while the NOAA policy applicable to humpback whales (which are the species usually found in Hawaiian waters) is 100 yards. These procedures have been presented to the National Humpback Whale Sanctuary. Terry White, Applicant’s Chief Operation Officer, is a member of the Humpback Whale Sanctuary Advisory Committee.”

Mr. White made a presentation to the 38th meeting of the Humpback Whale Sanctuary Advisory Council, January 20, 2005. Page 5 of the minutes state:

“Mr. White explained Hawaii Superferry’s whale avoidance strategy which includes: vessel design, approach policy (staying 500 yards away), routing (slower speeds and different routes during whale season), visual detection (two added lookouts, making a total of four, during whale season), shore-based theodolite use, technological detections (including radar, collision avoidance sonar, and night vision scopes), and avoidance procedures (course and speed changes).”

HSF’s Whale Avoidance Policy and Procedures (May 2005) page 5 states:

“6. Whale avoidance maneuver procedures
1. Actively seek and identify whales along track line ahead of vessel.
2. Identify course and speed of whales and calculate CPA (Closest Point of Approach).
3. Identify tracks that may come within 500 meter CPA. Change course and/ or speed to maintain a minimum 500 meter CPA
4. If a whale is sighted within 500 meters, maneuver (change course and or speed) until vessel is at least 500 meters away from whale.
5. If a whale appears suddenly in the path of the vessel, execute the appropriate emergency maneuvers to avoid the whales while considering all factors related to vessel and passenger safety.”

HSF prepared a public information document on March 6, 2007 entitled “Hawaii Superferry Informational Briefing, Maui.” Page two of this document contains the following statements:

“3) Please substantiate how HSF’s Whale Avoidance Policy is more restrictive than the 100-yard federal approach law for humpback whales? How is it possible HSF can ensure it will never approach closer than your stated goal of 500 meters? Our policy requires that our vessel change course or speed to stay at least 500 meters (541 yards) from whales which represents a stricter policy than current federal regulations in Hawaii that requires vessels to maintain a distance of 100 yards from a Humpback whale. Our policy represents a high standard to help us avoid whales using current available technology.”

Page six of the same documents contains the following statements:

“12) On November 18, 2004 John Garibaldi, CEO of Hawaii Superferry testified on it’s application for a Certificate of Public Convenience and Necessity to Engage in Operations as a Water Carrier at Waikoloa Elementary School. Mr. Garibaldi stated:

'Our whale avoidance policy is much stricter than what is required by federal regulations regarding approach to marine mammals…'”

On December 9, 2004 in a reply to PUC regarding their Certificate of Public Convenience application, they clarified the marine mammal approach policy they were referring to was North Atlantic right whales. Federal regulations regarding the protection of right whales prohibit approach to 500 yards and speeds reduced to 10 knots or less in waters where right whales are found, and full stop at 500 yards. How is the Superferry’s approach policy stricter than this NOAA marine mammal approach policy?

“To clarify any previous alleged statements, Hawaii Superferry’s whale avoidance policy statement is stricter than current federal regulations for Humpback whales in Hawaii and does not refer to other areas or other types of whales. Our whale avoidance policy states that our vessels must stay at least 500 meters (451 yards) away from Humpback whales whenever possible. Current federal regulations for Humpbacks in Hawaii require vessels to stay at least 100 yards away.”

From April 7 – 30, 2008 HSF completed 48 trips between Oahu and Maui. They nearly hit whales on three trips or 6.3% of their trips (with two near-misses on one trip alone!). Nearly hitting whales in almost one in sixteen trips has now sent HSF back to the drawing board. They now wish to remove the hallmark of their vaunted Whale Avoidance Policy by amending their policy requiring their vessel “stay at least 500 meters (541 yards) from whales” to no closer than 100 yards.

HSF has repeatedly represented they can detect and avoid whales, and will remain distances five times that of other vessels. The truth is they can not, and could never do this. By using this ruse they received endorsement of the Whale Avoidance Policy from the PUC, the State of Hawaii and the Sanctuary Advisory Council.

By HSF requesting OTF recommend relaxing the requirement from 500 yards avoidance to 100 yards is also an admission they simply cannot detect and avoid whales at distances greater than 100 yards reliably. HSF is over 110 yards long, with a ‘blind spot’ greater than 100 yards, traveling in excess of 35 knots. Allowing HSF to approach humpback whales up to 100 yards will only result in a greater likelihood of near misses and strikes. The latter of which will result in likely injuries or fatalities to passengers and damage to the vessel.


• HSF must maintain a minimum of 500 meters distance from sighted whales whenever possible, as required by E.O. 07-10 condition A.4.

3. Reduced Vessel Speed:

HSF cruises at speeds of 35 knots or greater. This speed is three times greater than what Norwegian Cruise Line vessels cruise at during whale months, and 2.5 times the speed of inter-island and container ships plying Hawaiian waters. This high-speed vessel, coupled with its imposing mass of between 400 – 800 tons and inability to detect whales poses a clear and present danger to humpback whales.

RECOMMENDATIONS (From December – May):

• HSF be limited to speeds of 12 knots or less in all waters of 100 fathoms or less, and while in Sanctuary designated waters.

• Nighttime operations: HSF must curtail all nighttime operations with operations limited from 30 minutes prior to sunrise to 30 minutes after sunset."

Gregory D. Kaufman
President & Founder

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