Greg Kaufman's comments on the Act 2 Pseudo-'EIS'

The following are Greg Kaufman's (of the Pacific Whale Foundation) comments on the Act 2 Pseudo-'EIS':

PWF Letterhead

Ms. Katherine P. Kealoha, Director
Office of Environmental Quality Control
235 South Beretania Street, Ste. 702
Honolulu, HI 96813-2419

Mr. Michael D. Formby, Deputy Dir.-Harbors
State Dept. of Trans., Harbors Div.
79 South Nimitz Hwy
Honolulu, HI 96813-4898

February 22, 2009

Proposed Action: Statewide Large-Capacity Inter-Island Ferry Draft Environmental Impact State prepared by Belt Collins Hawaii, LTD. For State of Hawaii Department of Transportation Harbors Division, December 2008

Aloha:

The “Draft Environmental Impact Statement” for a “Statewide Large-Capacity Interisland Ferry” prepared by Belt Collins Hawaii, LTD., for the State of Hawaii Department of Transportation Harbors Division fails to comply with HRS Chapter 343 Environmental Impact Statement (EIS) requirements and therefore should be disregarded in its entirety. Any action on this submitted pseudo DEIS should be held in abeyance until the constitutionality of Act 2 has been determined by the Hawaii Supreme Court.

Not withstanding the foregoing, our comments on the submitted pseudo DEIS are as follows:

3.2.5. Incorrectly states humpback whales are resident in Hawaii January through April. Humpback whales are present in Hawaiian waters from mid-October until June. An established and successful whalewatch industry “guarantees” the whale’s presence in Maui County waters from December 1 to May 15. The first whales sighted in Hawaiian waters this ‘whale season’ was October 08, 2008; in 2007, the first sighting was reported on October 7; and in 2006 it was on October 11. According to Pacific Whale Foundation's records, the first sighting of 2005 took place on November 11. In 2004, the first Maui whale sighting was on October 23. The first sighting of 2003 took place on October 21 and the first sighting of 2002 occurred on November 3. The first sighting of 2001 was on October 31. Prior to that, first sightings were on September 16, 2000;
September 30, 1999; and October 13, 1998. <http://www.pacificwhale.org/news/news_detail.php?id=342>

Page two.
February 22, 2009

Distribution and density of cetaceans in Hawaiian waters is faulty and incomplete. The pseudo DEIS appears to rely on one source only: aerial surveys and fails to cite or acknowledge extensive ship transect and individual photo-id efforts by numerous researchers working in Hawaii. <http://www.cascadiaresearch.org/Robin/Hawaii.htm> <http://www.pacificwhale.org/sitecontent/content.php?PageId=39>

4.2.2.1.1 Fails to identify and assess threats to green and hawksbill sea turtles and Hawaiian monk seals. Prior Army Corp of Engineers applications for Honolulu harbor improvements and associated marine traffic have undergone review by National Marine Fisheries Service and have required substantial monitoring and mitigation efforts for these aforementioned species.

4.2.2.2.1 Fails to identify and assess threats to endangered and threatened fauna in the both the terrestrial and marine environment of Kahului Harbor and the surrounding bay. The threatened green sea turtle (Chelonia mydas), endangered hawksbill turtle (Eretmochelys imbricata), humpback whale (Megaptera novaengliae), sperm whale (Physeter macrocephalus) Hawaiian monk seal (Monachus schauinslandi), Newell’s shearwater (Puffinus articularis newelli), Hawaiian petrel (Pterodroma phaeopygia sandwichensis), Hawaiian hoary bat (Lasirus cinereus semotus), Hawaiian duck (Anas wyvilliana), Hawaiian coot (Fulica alai), Hawaiian stilt (Himantopus mexicanus knudseni), and Blackburne’s sphinx moth (Manduca blackburni) may transit in the vicinity of harbor waters and/or within the boundaries of Kahului Bay. . Prior Army Corp of Engineers applications for Honolulu harbor improvements and associated marine traffic have undergone review by National Marine Fisheries Service and have required substantial monitoring and mitigation efforts for these aforementioned species.

4.2.2.2.5 Fails to identify and assess threats to green and hawksbill sea turtles and Hawaiian monk seals. Prior Army Corp of Engineers applications for Honolulu harbor improvements and associated marine traffic have undergone review by National Marine Fisheries Service and have required substantial monitoring and mitigation efforts for these aforementioned species.

4.2.2.3.1 Fails to identify and assess threats to green and hawksbill sea turtles, humpback whales and Hawaiian monk seals. Prior Army Corp of Engineers applications for Honolulu harbor improvements and associated marine traffic have undergone review by National Marine Fisheries Service and have required substantial monitoring and mitigation efforts for these aforementioned species.

2.4.2.2.4.1 Incorrectly reports the literature on worldwide ship collisions and potential impacts associated with vessel strikes on humpback whales. The greatest rate of change in the probability of lethal strike occurs between 8.6 knots (21%) and 15 knots (79%). The likelihood of fatality is 50% at 11.8 knots. The statement that humpback whales may be less prone to ship strikes than other baleen whales is misleading. The data simply reflect the species being impacted by vessels transiting areas that are not high in humpback density. By contrast, studies on ships strikes in Hawaiian waters only, show that humpback whales are the most likely of all cetaceans found in Hawaii to be struck.

Page three.
February 22, 2009

“Information in the Jensen and Silber (2003) database and Laist et al. (2001) indicates that the majority of vessel collisions with whales occurred at speeds between 13-15 knots. Overall, most ship strikes of large whale species occurred when ships were traveling at speeds of 10 knots or greater. Only 12.3% of the ship strikes in the Jensen and Silber database occurred when vessels were traveling at speeds of 10 knots or less. While vessel speed may not be the only factor in ship/whale collisions, or even the primary factor, data indicate that collisions are more likely to occur when ships are traveling at speeds of 14 knots or greater. This strongly suggests that ships going slower than 14 knots are less likely to collide with large whales. Therefore, NOAA Fisheries recommends that speed restrictions in the range of 10-13 knots be used, where appropriate, feasible, and effective, in areas where reduced speed is likely to reduce the risk of ship strikes and facilitate whale avoidance.“ (from NOAA Fisheries White Paper: Large Whale Ship Strikes Relative to Speed, 2004)

The historical strike data (Lammers et al.) referenced in this section fails to note this data was collected largely from self-reporting and recollection. It is not definitive or exhaustive in the actual number of strikes occurring, nor do the authors attempt to model this. Current strikes records archived by NMFS Honolulu and the Hawaiian Island Humpback Whale National Marine Sanctuary are not referenced.

The statement that “HSF has implemented a whale avoidance policy which includes monitoring efforts that are far more extensive than those other maritime operators” is false and misleading. Other maritime operators have reduced their speeds to 15 knots or less during whale months (Dec –May), posted observers, installed whale protection devices, avoid Sanctuary waters, and cease operations after dark. All of these procedures are more conservative and provide better whale protection than the HSF Whale Avoidance Policy.

The sound pressure analysis fails to give adequate acoustical analysis and makes no attempt to determine sound attenuation created by the Lloyd-Mirror Effect. The pseudo DEIS downplays the very real danger of sound masking occurring in the bow region and fails to model the reduced detection ability by humpbacks to this oncoming speeding vessel.

No analysis is done on the effects of the massive seawater intake required to propel the HSF. Some 4000 gal/sec of seawater are required per engine (x4). Such a sea ‘vacuum’ poses series threats to small odonotocete species, sea turtles and Hawaiian monk seals.

Failure to analyze distribution of odontocete species in Hawaiian waters and perform a risk assessment is disturbing. High speed ferries operating in the Canary Islands have a history of striking odontocetes on a regular basis, in particular pilot whales – which can be found all along the HSF routes, and in particular along the proposed route off Lanai and Hawaii island. The pseudo DEIS fails to review all known literature on odontocete sightings and distribution in Hawaii.

Page four.
February 22, 2009

There is no evidence the “…HSF whale avoidance policy substantially reduces the risk of collision occurring.” On the contrary, HSF WAP appears not to work at all. In April 2008, HSF recorded four near misses on 48 trips.

All four near misses occurred at distances of 50, 5-10, 17 and 8 yards. HSF WAP is supposed to ensure the vessel never approaches closer than 500 yards. Act 2 requires the recordation of approaches of 100 yards or less only, so we will never know how frequently HSF encounters whales less than 500 yards. However, given the lobbying by the HSF to the Oversight Task Force to change their WAP from 500 yards to 100 yards, one can conclude such encounters are happening frequently. Further there is no indication that HSF comes to a complete stop when within 100 yards of a humpback whale, placing the vessel in violation of Federal and State approach limit regulations to humpback whales in Hawaiian waters (violations of the MMPA and ESA).

The HSF 25-knot speed limit in Sanctuary waters, and waters of 100 fathoms or less, provide zero protection to humpback whales. As stated in the pseudo DEIS, strikes occurring at 24 knots or greater will result in 100% lethality. To substantially reduce HSF's threat to humpback whales they must reduce their speeds 12 knots or less, whereby any strike will result in 50% mortality or less.

Strike reports have shown the proportion of collisions with the bow of the ship increased at higher speeds making bow strikes (the most damaging) a greater likelihood with the HSF.

HSF’s routes, both the preferred and alternate, do not rely upon the available scientific data and fail to adhere to the precautionary principle. The “proposed route” (Dec – May) by Pacific Whale Foundation (see Figure 4-7) skirts the NW end of Penguin Bank; avoids Hawaii’s most whale dense area; reduces transit time in the Hawaiian Islands Humpback Whale National Marine Sanctuary; minimizes the amount of time HSF spends in waters of 100 fathoms or less; and would be comparable in length/time to both HSF’s preferred and alternate routes to/from Honolulu/Maui.

The HSF has failed to place certified fisheries observers onboard its vessel. HSF has failed to provide the qualifications of any hired observers and whether they meet the criteria or expertise required under Executive Order 07-10.

The HSF has failed to avoid operating within the boundaries of the Hawaiian Islands Humpback Whale National Marine Sanctuary or in waters less than 100 fathoms as required by Executive Order 07-10. In April 2008, 30% of the trips undertaken passed through Sanctuary waters, and 66% of all whales encountered by HSF in April 2008 were found in waters of 100 fathoms or less.

HSF has failed to establish criteria for “passenger safety and comfort or vessel safety” prior to abandoning the preferred route for the more whale dense alternate route between Honolulu/Maui.

Page five.
February 22, 2009

Collectively, the Executive Order 07-10, the HSF WAP and the pseudo DEIS fail to acknowledge distribution studies showing humpback whales in Hawaiian waters from mid-October to June, and that peak whale months are Dec – May each year.

Executive Order 07-10 fails to require GPS recordings of vessel routes/speeds and whale pod locations encountered by HSF.

HSF has failed to implement the following key whale detection and avoidance systems as required under Condition A-5 of the Executive Order 07-10, and as promised in their Whale Avoidance Policy and Procedures (WAPP):
a. Forward-looking collision avoidance sonar;
b. X-band radar;
c. Effective night vision systems; and
d. Bow-mounted cameras.

HSF experts testified in court that a 100-yard blind spot exists in front of the vessel. The efficacy of the two observers, one on each bow wing, is poorly understood. There has been no independent verification of the observers training, performance or vigilance. It is unclear if the observers are only forward-looking or looking arrears to detect lateral strikes by the vessel. It is unknown if the captain, crew or observers could detect a strike unless the actually observed the event (e.g. whale struck at mid-ships or further to the stern while surfacing). No consideration is given to the probability of lateral strikes and the detection thereof.

No independent study of the effectiveness of the visual scanning by “two able-bodied” seamen has been undertaken. A double-blind assessment is required. Further the blind spots and other visual limitations (e.g. can observers see along the beam of the vessel) need to be ascertained.

A cornerstone of the HSF WAP was the promise to actively maneuver and keep a minimum distance of 500 meters from a humpback whale. During legal proceedings and public hearings HSF was repeatedly questioned about its ability to live up to such a promise given the density of whales and their unpredictable surfacing behaviors. The Rapid Risk Assessment report (August 2008) supports this collective concern by also questioning HSF ability to maintain the minimum 500-meter approach limit due to density of whales.

The night-vision equipment utilized by HSF observers has proven largely ineffective, and has had a low use rate.

The use of thermal imaging technology is untested in Hawaiian waters. The only reliable means of detecting whales at the surface is by visual detection, which is severely diminished in darkness, high sea states and poor weather. While TI has shown limited use for detection in cooler waters, it's efficacy is untested in Hawaii where the whale’s exhalations and body temperature closely matches the ambient air and sea temperatures.

Page six.
February 22, 2009

TI (if effective) can only detect the presence of a heat producing body at the surface. It cannot determine whether it is a pod (group) of humpback whales, dolphins or other cetaceans. (We already know humpback whales are present along HSF’s route from October – May). If TI does detect a humpback pod at the surface, it cannot determine pod composition, pod speed, pod travel direction, pod behaviors or the presence/absence of a calf. Simply knowing whales are along the HSF’s route does little to help the captain determine the right course of action to take. Furthermore, collision and near collision data (between vessels and whales in Hawaii), indicates whales that are struck or nearly struck, are the result of ‘surprise encounters’ – in other words, undetected by the captain prior to surfacing in the path of the vessel.

No assessment of the role of the hydrodynamics of HSF and its impact of whales has been undertaken. Vessels in transit exert hydrodynamic forces that can draw in whales and result in injury or mortality. Although different vessel types exert unique levels of force on whales, in general, an increase in speed increases the forces acting on the whale. Thus, if the speed of a vessel increases, the whale will be drawn in more quickly (Knowlton et.al. 1995). HSF transiting at speeds up to 40 knots poses a clear danger to humpback whales and the hydrodynamics of this vessel of nearby whales needs to be fully investigated.

RECOMMENDATIONS (From December – May):

• Cetacean distribution and whale strike literature is poorly researched and not up to date.

• Mitigation of Blind Spot: To help reduce the likelihood of the HSF hitting whales found inside its 100 yard blind spot, HSF must comply with Condition A-5 of the Executive Order 07-10 and install a series of cameras on its bow. The video from these cameras should be routed to the pilothouse whereby a dedicated observer can monitor them during operation.

• Observers: Three full-time observers required. Two observers would be dedicated to forward/lateral detection, with the third observer monitoring the bow camera.

• Independent verification of observer efficacy to be measured randomly throughout the whale season.

• Aerial surveys flown along HSF routes to determine whale encounter rate and determine short/long term changes in humpback whale distribution along route.

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

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

• A humpback whale strike probability model must be developed by HSF.

Page seven.
February 22, 2009

RECOMMENDATIONS (continued):

• Modeling of hull hydrodynamics forces imposed on approaching humpback whales is needed.

• Study of whale behavior in the presence of HSF should be undertaken.

The pseudo DEIS fails to assess the cumulative impacts of the second HSF. The pseudo DEIS also fails to address whether the application for federal funds from the United States Department of Defense to outfit the second vessel with National Defense Features triggers the need for a real EIS. Any use of federal funds by HSF would require full compliance with NEPA and the ESA by completing an EIS and a Section 7 consultation.

Both NEPA and Section 7 consultation are triggered when Federal funds are provided for a project. While HSF’s application (dated March 11, 2008) for $5 million in federal funds is pending, the pseudo DEIS should address this contingency.

Finally, the preparer, Belt Collinis Hawaii, LTD., made no attempt (that I am aware of) to seek Pacific Whale Foundation’s consultancy on the pseudo DEIS. We received neither a written consultancy letter nor an email from the preparer. To include Pacific Whale Foundation in the Appendices as a “Consulted Party” who “Did Not Respond” is false and inaccurate. Given my testimony over the course of nearly 10 days at the HSF/DOT trial and Pacific Whale Foundation’s ongoing submissions to the OTF, I am not certain how the preparer failed to seek our input.

Sincerely,
Gregory D. Kaufman
President & Founder
PACIFIC WHALE FOUNDATION

Sent via fax: (808) 586-4186, (808) 587-3652


[The next few posts will be additional official comments filed with the OEQC and DOT.--ed.]