Dear Mr. Green:

The Kachemak Bay Conservation Society’s mission is to protect the environment of the Kachemak Bay region and greater Alaska by encouraging sustainable use and stewardship of natural resources through advocacy, education, information, and collaboration. We oppose the regulatory change on PWC restrictions in Kachemak Bay and Fox River Flats Critical Habitat Areas.

THE ALASKA DEPARTMENT OF FISH AND GAME MUST UPHOLD THE PRIMARY PURPOSE OF THE CRITICAL HABITAT AREA.

The purpose of the Kachemak Bay and Fox River Flats Critical Habitat Area (CHA) is “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” (AS 16.20.500). The Alaska Department of Fish and Game (the department) was given the responsibility to protect the fish and wildlife of the CHA for all Alaskans by the legislature. In proposing to repeal 5 AAC 95.310, the ban on PWC in the CHA, the department does not state how this action is in keeping with its “primary purpose” to “protect and preserve” Kachemak Bay and Fox River Flats. This omission is a violation of the directives of the legislature and thereby a violation of the will of Alaskans.

As "no regulation adopted is valid or effective unless consistent with the statute and reasonably necessary to carry out the purpose of the statute” (A.S. 44.62.030), this proposed regulation is not valid unless it protects and preserves habitat areas crucial to the perpetuation of fish and wildlife; the department has given the public no reason whatsoever to believe that purpose of the proposed regulation meets this criteria. Instead, it makes a circular statement regarding purpose. The department’s stated purpose is not the protection of or preservation of “habitat areas especially crucial to the perpetuation of fish and wildlife;” instead its purpose is to “repeal prohibition on personal watercraft in the Fox River Flats and Kachemak Bay Critical Habitat Areas.” The department’s evasion of the crucial issue of how the regulation would uphold the founding statute of the CHA is an unacceptable; it is an evasion of the department’s responsibility to all Alaskans to protect fish and wildlife for the good of all Alaskans, as designated by the legislature; it is an evasion of the department’s responsibility to act as scientific body; it is an evasion of its constitutional responsibility to fairness; and it is an evasion of its responsibility to public process, transparency and integrity vis a vis the CHA.

The department’s evasion of the crucial issue of how the regulation would uphold the founding statute of the CHA is an unacceptable; it is an evasion of the department’s responsibility to all Alaskans to protect fish and wildlife for the good of all Alaskans, as designated by the legislature; it is an evasion of the department’s responsibility to act as scientific body; it is an evasion of its constitutional responsibility to fairness; and it is an evasion of its responsibility to public process, transparency and integrity vis a vis the CHA.

Further, the lack of evidence and analysis on the part of the department to justify the proposed regulation presents a significant legal problem, as “it is well established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself” (Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 1983).

PUBIC PROCESS

Kachemak Bay Conservation Society rejects Mr. Green’s repeated public statements denigrating the value of public comments and the evidence they may supply, and instead we rely on the Alaska Statute on Record of Public Comment (AS 44.62.215), which requires that agencies account for evidence submitted in the public process:  

“In the drafting, review, or other preparation of a proposed regulation, amendment, or order of repeal, an agency…shall keep a record of its use or rejection of factual or other substantive information that is submitted in writing as public comment and that is relevant to the accuracy, coverage, or other aspect of the proposed regulatory action”

The legal standards outlined in the following section further clarify the requirement that all “relevant factors” inform the agency’s “reasonable and not arbitrary” final determination. Any lower standard and our institutions devolve into corruption and demagoguery.

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THE ALASKA DEPARTMENT OF FISH AND GAME IS OBLIGED TO UPHOLD ITS DUTY TO EQUAL PROTECTION OF THE THE PUBLIC.  

All Alaskans should be able to trust a fair and transparent process that is based on scientific evidence and fair analysis. The department appears to have fallen below this standard; in this sense, this public process is not only about PWC in the Kachemak Bay and Fox River Flats Critical Habitat Areas but about what our state stands for and who our agencies work for.  

In describing the motivation for the proposed regulatory change to the press, Mr. Green has made statements about concerns of fairness, “All the citizens of Alaska own Kachemak Bay and there’s a group of them that are being prohibited from using that.” We would like to preface this discussion by distinguishing between individuals and gear types. The department has a common practice of regulating gear, and this is not a violation of “equal protection.”

The department has a common practice of regulating gear, and this is not a violation of “equal protection.”

For example, commercial boats are only allowed to fish one net at a time; while it would be convenient for fishers to be able to carry backup gear to have on hand when their gets damaged, carrying of back-up gear is prohibited because the department cannot reasonably enforce the policy that only one net be used at a time. Sport and substance fisheries as well as and game managers rely heavily on gear and area regulations as a way of to maintain sustainable yield.

Now, we will take Mr. Green at his word that he and the department are concerned about fairness. We agree that the department has a solemn duty to uphold the articles of the constitution that guarantee all citizens equal protection under the law, a right to due process, and an expectation that land and waters acquired by the state will be preserved for the use, enjoyment, and welfare of all the people of Alaska.” In the light of these founding principles, we demand that the department manage the CHA fairly. Fair management means that the interests of all user groups in Kachemak Bay and the Fox River Flats will be considered and valued in regulation.

There are a wide array of conflicts of interests between PWC users and other user groups in Kachemak Bay and Fox River Flats. The evidence we present below–which was readily available to the department in its deliberations–clearly indicates that allowing PWC into the Kachemak Bay and Fox River Flats Critical Habitat Areas would come at a significant cost to the rest of the users. And so, Mr. Green, we hold you to your word and demand that you act in fairness to all Alaskans. Consider the following conflicts and for greater detail please refer to the section “Relevant Research on PWC”:

There are serious potential conflicts of interest between commercial, sport, and subsistence fisheries in Kachemak Bay, which include salmon, crab, halibut and cod fisheries; there are also potential conflicts between PWC and mariculture.

There are serious potential conflicts between PWC users and bear, moose and duck and goose hunters.

There are serious potential conflicts between PWC and birders, hikers, kayakers, whale-watchers, and a great number of tourism businesses who are deeply invested in those and other activities. With regard to kayakers, safety is a real concern; for more information please refer back to ADF&G’s 2017 Literature Review included as an attachment to this letter. Please also note that no agency has been delegated and funded to protect public safety.

The proposed regulation places no restrictions on PWC use that would indicate that the department is concerned about protecting the interests of any of these groups. As such, the proposed rule violates Article 1, Article 2 and Article 8 of the Alaska Constitution.  Such limitations have been used across the country, and they include evidence-based setbacks from the intertidal, restrictions around seal haul outs, bird nesting grounds, setnet sites, historical areas for sport- and subsistence fishing, historical areas for kayaking and swimming (PWC are notoriously dangerous for kayakers and swimmers).

If the department would like to balance the interests of PWC user and other users, it must identify funding and personnel to enforce the necessary restrictions on PWC. Please note that lack of funding and personnel to enforce restrictions was the reason that the draft management plan work group rejected the proposal by Mr. Green to allow PWC in the CHA. Please see details in Appendix C.

It is unacceptable that the department has conducted no analyses of these conflicts and serious potential losses faced by this very broad and diverse set of user groups. It would seem to be in violation of the constitution to ignore the welfare of these user groups while seeking to serve the interests of one relatively small user group.

There is no constitutionally justifiable reason to prioritize the interests of one particular user group over others.

The remedy is a fair-minded and evidence-based analysis of the conflicts of interests, and any attempt to balance interests must be accompanied by a demonstration of agencies' financial and technical ability to regulate PWC behaviors. In the consideration of other user groups’ interests, it must be remembered that the extent to which many of these groups will be impacted is the extent to which fish and wildlife and their habitats will be harmed by the introduction of PWC. Ultimately, the department must fall back on its “primary purpose” to preserve and protect the fish and wildlife of the CHA, as designated but the Alaska Legislature. Only the legislature can decide to abandon that purpose.

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RELEVANT RESEARCH ON PWC:

ADF&G ASSESSMENTS:

Following the scoping comment period on the critical habitat areas management plan, in 2017 ADF&G staff revisited the literature review conducted during the regulation’s original adoption and found “there has been considerable new research on the potential impacts of PWCs to protected areas,” citing and reviewing an additional 140 articles not utilized in the previous literature review.  The topics of these 140 new articles include: “effects of PWC and other recreational boating impacts on marine mammals, birds, fish, and other organisms; ecological and water quality impacts; PWC noise; user group conflicts and other management and legal implications.”

Based on its updated literature review, ADF&G staff concluded in 2017 that “most of the concerns that led to the adoption of the PWC prohibition in Kachemak Bay and Fox River Flats CHAs in 2001 continue to be valid today” and “there is no new information that would warrant rescinding the prohibition, and in fact the newer information highlights most of the concerns identified when the prohibition was adopted.”  

In making its conclusion and recommendation to maintain the regulation, the authors noted that “this recommendation was widely supported” by staff in four department divisions, including the Commercial Fisheries and Sport Divisions. The department must speak directly to the studies included in that literature review and the conclusions drawn when the department explains its final determination if it is to maintain its integrity and follow the rule of law.

RELEVANT PRECENDENTS:

PWC have, though scientific and public processes, been banned or restricted for the protection of fish and wildlife in numerous areas. The department must assess the science that went into these processes:

11 National Parks

Padre Island National Seashore

Monterey Bay National Marine Sanctuary

Farallones National Marine Sanctuary

BEHAVIOR:

Please note that research on behavioral characteristics of PWC are valid independent of motor type (2- vs 4-stroke); in fact, older studies may be more conservative, as 4-stroke PWC have become more powerful, faster and more nimble. The following analysis is largely extracted from assessments done by NOAA, and additional background information can be found online or at the NOAA offices.

In several assessments of PWC impacts upon protected water areas around the United States between 1994 and 2004, the National Park Service found that PWC can operate closer to shore at high speeds and make quicker turns than other types of motorized vessels. PWC have a disproportional thrust capability and horsepower to vessel length and/or weight, in some cases four times that of conventional vessels. Research indicates that impacts associated with PWC tend to be locally concentrated, producing effects that are more geographically limited yet potentially more severe than motorboat use, due to repeated disruptions to wildlife and an accumulation of impacts in a shorter period of time (Snow, 1989; Asplund, 2000; Davenport and Davenport. 2006).

Research indicates that impacts associated with PWC tend to be locally concentrated, producing effects that are more geographically limited yet potentially more severe than motorboat use, due to repeated disruptions to wildlife and an accumulation of impacts in a shorter period of time (Snow, 1989; Asplund, 2000; Davenport and Davenport. 2006).

PWC are generally of smaller size, with a shallower draft (4 to 9 inches) than most other kinds of motorized watercraft. The smaller size and shallower draft of PWC means they are more maneuverable, operable closer to shore and in shallower waters than other types of motorized watercraft (U.S. Dept. of Interior, 1998). These characteristics greatly increase the potential for PWC to disturb fragile nearshore habitats and organisms.

Research in Florida found that PWC cause wildlife to flush at greater distances and trigger more negative behavioral responses than automobiles, all-terrain vehicles, pedestrians, and motorboats. This was partially attributed by the scientists to a common operational profile of PWC in which they accelerate and decelerate repeatedly and unpredictably and travel at high speed directly toward shore. By comparison, conventional motor boats generally slow down as they approach shore (Rodgers and Smith, 1997). A study of harbor seal reactions to vessel disturbance in San Francisco Bay between 1998 and 2001 concluded that watercraft exhibiting sudden speed and directional changes were much more likely to flush seals than vessels passing at a steady speed and constant course (Green and Grigg, 2001). Scientific research also indicates that even at slower speeds, PWC pose a significantly stronger source of disturbance to birds than conventional motorboats. Levels of disturbance are further increased when PWC are operated at high speeds or outside of established boating channels (Burger, 1998). Research in the Imperial National Wildlife Refuge directly attributed declining nesting success of grebes, coots, and moorhens to the noise and physical intrusion of PWC (Snow, 1989).

Numerous shoreline roost sites exist within the CHA and research has shown that human disturbance at bird roost sites can force birds to completely abandon an area. Published evidence strongly suggests that estuarine birds may be seriously affected by even occasional disturbance during key parts of their feeding cycle, and when flushed from feeding areas, such as eelgrass beds, will usually abandon the area until the next tidal cycle (Kelly, 1997). In a study of the responses of Common terns to boats vs. PWC, terns respond with significantly more upflights to PWCs that raced by and circled than to motor boats that remained in the channel (Burger, 2003). Researchers at Great White Heron National Wildlife Refuge in the Florida Keys observed that disturbances by PWC contributed to poor reproductive success of nesting ospreys (Estes, B. 2001). Repeated disturbance of seabirds by PWC in quiet estuarine areas of the Gulf of the Farallones National Marine Sanctuary led to a complete prohibition of PWC operations in that sanctuary.

Researchers note that PWC may be disruptive to marine mammals because PWC change speed and direction frequently, are unpredictable, and may transit the same area repeatedly in a short period of time. Because PWC do not produce low-frequency long distance sounds underwater, they do not signal surfacing mammals or birds of approaching danger until they are very close to them (Gentry, 1996; Osborne, 1996). Acoustics research conducted in Sarasota Bay, Florida (Miksis-Olds, 2006) showed a marked difference in manatee responses to PWC sound signatures compared to sound signatures from other types of vessels. All manatees in the study group exhibited acute panic responses to PWC, except for one animal, which was deaf. Possible disturbance effects of PWC on marine mammals in the CHA could include shifts in activity patterns and site abandonment by harbor seals; site abandonment by porpoises; injuries from collisions; and evasion behavior by whales (Gentry, 1996; Richardson et al., 1995; Szaniszlo, 1999.; Miller 2008).

PWC operation poses particular risk to sensitive estuarine and stillwater areas within the CHA, such as Beluga Slough or the Fox River Flats. Research in Florida shallow water areas indicates that PWC can increase turbidity and may redistribute benthic invertebrates, and that such impacts may be prolonged as a result of repeated use by multiple machines in a limited area.

PWC, with their exceptionally shallow drafts, have increased traffic in regions of water bodies which have historically seen little boating (Beachler, 2003), and release disproportionately large amounts of fuel emissions into shallow waters that otherwise would not be disturbed by other forms of boating (Depree 2007).  

Research has also shown that PWC can increase local erosion rates by launching and beaching repeatedly in the same locations (Snow, 1989). Past research in the Everglades National Park indicated that fishing success dropped to zero when fishing occurred in the same waters used by PWC.

NOISE:

We will open our discussion of noise with information from information from Scott Kathey, Federal Regulatory & Enforcement Coordinator, Monterey Bay National Marine Sanctuary, National Oceanic and Atmospheric Administration, exchanged in Email correspondence with Kachemak Bay Conservation Society. Mr. Kathey states:

“A popular past-time for recreational MPWC use is launching off of waves and breaking surf, resulting in brief airborne maneuvers, where the craft completely leave the water.  Sound emission improvements of newer craft are largely negated in such instances since the engine and impellers are completely out of the water.  Aside from decibel levels, a unique sound signature common to MPWC operations is repeated rapid acceleration and deceleration (i.e. revving of the throttle) as the craft maneuver and "dig out" of tight turns.  This sound pattern (regardless of decibel level) is more startling to wildlife than a vessel following a steady course at a steady speed.”

One of the most significant differences between noise from PWC and noise from motorboats is that PWC continually leave the water, which magnifies noise in two ways. First, without the muffling effect of water, the engine noise is typically 15 dB louder, and second, the smacking of the craft against the water surface results in a loud “whomp” or a series of them ( Komanoff and Shaw 2000).

Also, with the rapid maneuvering and frequent speed changes, the impeller has no constant “throughput” and no consistent load on the engine. Consequently, the engine speed rises and falls, resulting in a variable pitch. In general, sounds with prominent impulses are often perceived as more annoying than a constant sound with the same equivalent sound pressure level (EPA 1979).

When weighing the merit of the above evidence on behavior and noise, please consider much of i was challenged in court in  1995, in a U.S. Circuit Court of Appeals for the District of Columbia. The decision upheld the ban on PWC  on the merit of evidence and against arguments the restriction was “unfair”:

“An agency does not have to ‘make progress on every front before it can make progress on any front.' United States v. Edge Broadcasting Co., 113 S. Ct. 2696, 2707 (1993). Agencies often must contend with matters of degree. Regulations, in other words, are not arbitrary just because they fail to regulate everything that could be thought to pose any sort of problem. Las Vegas v. Lujan, 891 F.2d 927, 935 (D.C. Cir. 1989); Louisiana v. Verity, 853 F.2d 322, 332 (5th Cir. 1988). This is a common principle, well known not only in administrative law cases but also in constitutional cases raising equal protection challenges to economic regulation…

The record is full of evidence that machines of this sort [jet skis and other thrill craft] threatened the Monterey Bay National Marine Sanctuary. NOAA received written comments and testimony from marine scientists, researchers, federal agencies, state agencies, state and local governments, business organizations, and more than a hundred citizens on the issue of regulating these machines. Everyone agreed_personal watercraft interfered with the public's recreational safety and enjoyment of the Sanctuary and posed a serious threat to the Sanctuary's flora and fauna.."

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LEGAL STANDARD FOR ADMINISTRATIVE PROCEDURE ‍

Mr. Green has commented to the press that the proposed regulation change is based on access issues:

“The Kachemak Bay Critical Habitat Area is a piece of trust land owned by all the citizens of Alaska, there is a segment of them that are banned from accessing it with their watercraft..and this opens it up to them.”

In this assessment, the department has failed to consider, measure, or assess injuries other groups may suffer as a result of providing access rights to PWC. The department must assess “critical information concerning the injury which the landholder would suffer” to if the decision is not to be considered arbitrary. Injury to commercial, sport, and substance fisheries must be considered; costs associated with regulating the crafts for public safety and pursuant to the marine mammal act must be assessed; losses to the city and tourism businesses due to declines in visitors who value the quiet and ecological richness and diversity marine mammals, shorebirds that extensive research has shown are harmed and displaced by PWC. Lastly, the department must consider the broad constituency of Alaskans for whom Kachemak Bay and the Fox River Flats were designated as Critical Habitat Areas that merit special protection. These areas were protected for the benefit of all Alaskans by statute, and must continue to be protected for all Alaskans.  

The lack of information presented by the department as a basis for the regulation change in contrast to the broad extent of information supporting the ban, which the department has ignored, strongly suggests that the regulation is arbitrary and unlawful:

"It is well established that where an agency fails to consider an important factor in making its decision, the decision will be regarded as arbitrary."

See Hanlay v. Mitchell, 460 F.2d 640, 646 (2d Cir.1972) ("it is `arbitrary and capricious' for an agency not to take into account all relevant factors in making its determination"); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823-24, 28 L. Ed. 2d 136, 153 (1971) ("to make this finding [whether an administrative decision is arbitrary, capricious, etc.] the court must consider whether the decision was based on a consideration of the relevant factors ...")."

Further, please consider the following Alaska Supreme Court Ruling regarding arbitrary regulations and the need for decisional documents:

“We turn first to a brief discussion of the applicable standard of review. 'Where, as here, the question is as to the merits of agency action on matters committed to agency discretion, our scope of review is limited to whether the decision was arbitrary, unreasonable or an abuse of discretion.' North Slope Borough v. LeResche, 581 P.2d 1112, 1115 (Alaska 1978); Hammond v. North Slope Borough, 645 P.2d 750, 758-59 (Alaska 1982). Where an agency fails to consider an important factor in making its decision, the decision will be regarded as arbitrary. State v. 0.644 Acres, More Or Less, 613 P.2d 829, 833 (Alaska 1980). As one distinguished judge has put it, the role of the court is to ensure that the agency "has given reasoned discretion to all the material facts and issues." The court exercises this aspect of its supervisory role with particular vigilance if it "becomes aware, especially from a combination of danger signals, that the agency has not really taken a `hard look' at the salient problems and has not genuinely engaged in reasoned decision making.[Leventhal, Environmental Decision Making and the Role of the Courts, 122 U.Pa.L.Rev. 509, 511 (1974)]…

A decisional document, done carefully and in good faith, serves several salutary purposes. It facilitates judicial review by demonstrating those factors which were considered. It tends to ensure careful and reasoned administrative deliberation. It assists interested parties in determining whether to seek judicial review. And it tends to restrain agencies from acting beyond the bounds of their jurisdiction” Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 97 n. 11 (Alaska 1974).”

In the above Alaska Supreme Court ruling, Alaskan agencies where held to standards of review set by the US Supreme Court. It is then logical to consider more recent US Supreme Court standards of review for the arbitrary and capricious standard, which are very clear about the need for reasoned judgement based on facts :

"An agency must offer a “rational connection between facts and judgmen to pass muster under the ‘arbitrary and capricious' standard…

An agency changing its course by rescinding a regulation is obligated to supply a reasoned analysis for the change…

While the scope of review under the ‘arbitrary and capricious’ standard is narrow, and a court is not to substitute its judgment for that of the agency, the agency nevertheless must examine the relevant data and articulate a satisfactory explanation for its action. In reviewing that explanation, a court must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment.”

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CONCULSION

This complex matter has many facets, but in some ways it is very simple. The legislature has determined that the preservation and protection of fish and wildlife in Kachemak Bay and Fox River Flats Critical Habitat Areas is in the best interest of all Alaskans and that this special designation is consistent with the constitutional requirement for equal protection under the law. It is the department’s duty to uphold that directive from the legislature. The department must explain how it is that, given all the information on how PWC present a unique threat to fish and wildlife, permitting them in the CHA is consistent with that mandate.

Sincerely,

Roberta Highland

President, Kachemak Bay Conservation Society

CC: Doug Vincent-Lang

Governor Dunleavey

Senator Peter Micciche

Senator Gary Stevens

Representative Ben Carpenter

Representative Gary Knopp

Representative Louise Stutes

Representative Sarah Vance

APPENDIX

Appendix A. Public Statements by Mr. Green on proposed restrictions.

Kachemak Bay Conservation Society talked to Mr. Green on phone on December 5th. In this conversation Mr. Green said that the basis for the change was that members of a PWC club had convinced him that there was no meaningful distinction between PWC and other watercraft and that the impacts to fish and wildlife were no more significant than the impacts of other watercraft. Case law cited in the body of these comments indicates that the Administrative Procedures Act prohibits regulatory changes that do account for significant scientific evidence.

When pressed for the basis of this position, Mr. Green reported that he often took his boat out of Resurrection Bay in Seward and had never observed any harm done to fish and wildlife by PWC. This reply was unscientific, and moreover reflected a lack of understanding of the importance of scientific study.

When asked how the department would protect the safety of PWC and other users in these as well as prevent harassment of fish and wildlife, Mr. Green said that the Coast Guard would act as the enforcement agency. When asked if the department had any agreement with the Coast Guard on enforcement, Mr. Green said that there was no such agreement.

To date, ADF&G has not provided any substantive rationale on the record for why it is repealing the personal watercraft prohibition regulation. Documents attached to the public notice merely note that the proposed repeal originated from “staff of state agency” and that the “[r]eason for the proposed action” is “[t]o repeal prohibition on personal watercraft in the Fox River Flats and Kachemak Bay Critical Habitat Areas.” Moreover, Rick Green, ADF&G’s Special Assistant to the Commissioner and the agency point of contact for this proposed repeal, informed CIK in an email that the agency has “no written findings with which to share as ours were verbal consultation and deliberations with our staff biologists and our habitat biologists at the Alaska Department of Fish and Game over the past 11 or 12 months.”

Meanwhile, in the media, Mr. Green has provided the following indications of the agency’s rationale and decision:

• Special interest group requests: “Rick Green, a special advisor to the Fish and Game Commissioner and the point of contact for the proposed change, said this push came about now because interested user groups, including the Personal Watercraft Club of Alaska and the Alaska Outdoor Council, have been coming to Fish and Game throughout the last year asking for the critical habitat areas to be opened.” “‘I can kind of tell you how we got where we are. The Personal Watercraft Club, The Alaska Outdoor Council and some groups like that brought this to us and said, Hey, look, we can’t see a reason for this to happen - and asked us to review the prohibition,’ said Green. Special Assistant Green’s page on the ADF&G website says he is a lifetime member of the Alaska Outdoor Council.”
  

• Repeal furthers ADF&G guiding principles and public access: “The proposed change also revolves around a public access issue, according to Green. He said one of the Fish and Game guiding principals is to provide for the greatest long-term access to fish and wildlife resources for people, and that this regulation change would be in line with that. ‘All the citizens of Alaska own Kachemak Bay and there’s a group of them that are being prohibited from using that,’ he said.” “‘The Kachemak Bay Critical Habitat Area is a piece of trust land owned by all the citizens of Alaska, there is a segment of them that are banned from accessing it with their watercraft,’ he said. ‘And this opens it up to them.’” “Green says there are economic benefits to consider and that ADF&G wants all Alaskan’s to have access to Kachemak Bay and Fox River Flats. ‘If I was to put it in a nutshell, we put this proposal forward to increase access for Alaskans to the property that we all own equally. That’s our motive is to increase access.’”
  

• Repeal would not harm fish and wildlife: “‘We already allow watercraft into the critical habitat area,’ Green said, referencing boats that go in and out of the Homer Harbor and frequent the bay. ‘And we don’t see personal watercraft as being any more damaging to fish and wildlife perpetuation than a 16-foot (boat).’ ”

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Appendix B. Email to Kachemak Bay Conservation Society from Scott Kathey, Federal Regulatory & Enforcement Coordinator, Monterey Bay National Marine Sanctuary, National Oceanic and Atmospheric Administration.

Jan 13, 2020, 5:10 PM (15 hours ago)

Scott Kathey - NOAA Federal

to me, Erica, Karen

Penelope,

Please see the information on our website about management of Motorized Personal Watercraft (MPWC) within MBNMS.

The "Frequently Asked Questions (FAQs) About MPWC" link has some useful information and links pertaining to specific questions, such as, "Is there scientific and public information demonstrating that MPWC cause a unique disturbance to marine wildlife?"  The response to that question includes a list of references (some are post-2003 publications) that might be of interest to you.

In an open marine system (such as an open coast, broad bay or wide inlet), pollution concerns from MPWC are not typically at issue.  Four-stroke technology, though it provides cleaner emissions, does not change wildlife disturbance concerns caused by unpredictable navigation patterns and high-speed maneuvers common to MPWC operations.  MPWC owners tend to operate in pairs or groups, thus expanding their footprint in an area considerably more than a single vessel transiting through at relatively slow speed.  MPWC riders often focus operations in a given location, making repeated runs, doubling back and criss-crossing their previous courses at accelerated speeds.  Such intense operations can be particularly disturbing if conducted next to seabird aggregations or marine mammal haul-outs.  A popular past-time for recreational MPWC use is launching off of waves and breaking surf, resulting in brief airborne maneuvers, where the craft completely leave the water.  Sound emission improvements of newer craft are largely negated in such instances since the engine and impellers are completely out of the water.  Aside from decibel levels, a unique sound signature common to MPWC operations is repeated rapid acceleration and deceleration (i.e. revving of the throttle) as the craft maneuver and "dig out" of tight turns.  This sound pattern (regardless of decibel level) is more startling to wildlife than a vessel following a steady course at a steady speed.  Also, when an MPWC is airborne, even for a brief period of time, the operator has no ability to adjust course should wildlife or a person surface or cross in front of the vessel.  The aforementioned operating characteristics combine to create a unique risk of disturbance to wildlife, particularly in remote and sensitive areas.  Though newer 4-stroke MPWC have improved emissions and quieter engines (in water) over their predecessors, they are also bigger, faster, and more powerful.  They have considerably more range and endurance and can access points far from their launch sites, while retaining the quick acceleration and dexterity of the smaller craft.

Scott

Scott Kathey

Federal Regulatory & Enforcement Coordinator

Monterey Bay National Marine Sanctuary

National Oceanic and Atmospheric Administration

U.S. Department of Commerce

99 Pacific Street, Suite 455A

Monterey, CA 93940

Phone: 831-647-4251

Fax: 831-647-4250                                          

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Appendix C. Record of discussions on PWC Management at the Kachemak Bay and Fox River Flats CHA Management Plan Revision Planning Team Meeting on December 20, 2019.

Kachemak Bay Conservation Society attended nearly all the meetings for the Kachemak Bay and Fox River Flats Critical Habitat Areas Management Plan Revision. On October 24, 2019 policies for PWC were discussed by the team. A representative for Kachemak Bay Conservation Society attended the meeting and signed in with staff at the beginning of the meeting. Below our description of the proceedings. These notes should be verifiable by Tammy Massy, the ADF&G staff leading the meeting, as well as any the other agency representatives present.

There were a number of agencies either present or on the phone, with about 10 people in attendance: the City of Homer was represented, as well as the National Estuarine Research Reserve System, NOAA, State Parks, and the Coast Guard, and possibly the someone from the Harbormaster’s office; from ADF&G, there were habitat biologists, wildlife biologists and commercial salmon fishery biologists. Assistant to the Commissioner of Fish and Game, Rick Green, was on the phone with two members of a PWC club.

PWC discussions began with Tammy Massy saying that there was public comment from the scoping phase both from those who supported PWC use in the CHA and those who wanted the ban upheld. ADF&G staff agreed that as the department has a regulation banning PWC, the management plan could not allow use of PWC. One ADF&G staff member mentioned that some comments from a PWC group indicated that the group was considering suing the department over the regulation. In the light of a potential suit, the legitimacy and legality of the policy was discussed at some length. While it was agreed that PWC have become quieter and cleaner since the ban was instituted, the following concerns remained—

• They are significantly louder than boats because they skim over the top of the water.
• PWC tend to be used for recreation and change direction at high speeds, which makes them particularly disturbing to fish and wildlife the CHA was designed to protect, especially while nesting/pupping and rearing young.
• PWC are known to have tendency to go into shallow areas that are especially sensitive habitat.
• The shallow areas where PWC tend to recreate are often breeding and rearing grounds for marine mammals, seabirds, and fishes.
• Migratory birds, waterfowl, seals and seal haul outs, otters and whales are of particular concern.

There was unanimous agreement that the above considerations were significant enough to uphold and justify the ban, except for one voice of decent on the phone: Rick Green spoke up on the phone, saying he was calling in with two members of a PWC club and he and/or they proposed—it was unclear who exactly was making the proposition— that as behavior was the primary concern of agency staff, it was behavior that should be regulated, not the PWC themselves.

This point was considered by the agencies present. All who responded to Mr. Green made variations on the same point: there is no capacity to regulate PWC behavior in the CHA. It was raised that there is already a significant problem of habitat degradation from 4-wheeler use on the Fox River Flats that the department has been unable to regulate. One fishery biologist pointed out that ADF&G has a common practice of regulating gear when it cannot reasonably enforce behavior restrictions to protect fish and wildlife, for example, commercial boats are only allowed to fish one net at a time; while it would be convenient for fishers to be able to carry backup gear to have on hand when their gets damaged, carrying of back-up gear is prohibited because the department cannot reasonably enforce the policy that only one net be used at a time. Sport fisheries and game managers regulate gear to maintain sustainable populations of fish and wildlife. It was discussed whether State Parks could manage PWC, and it was decided that as there is only one ranger for the park, that would not be possible. The Coast Guard made no offer to assist in management. After about ten minutes of discussion, consensus was reached that there should be no change to the PWC ban, and discussion moved on to the next subject.

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