Risk, Public Safety & Rescue Skis at Mavericks
Motorized Personal Watercraft
Action Plan Review
- Comment: There needs to be some mechanism for periodic review of the MBNMS MPWC Action Plan to allow the action plan to be periodically adjusted according to the effectiveness of the program.
Response: The National Marine Sanctuaries Act requires NOAA to review the management plans and action plans therein every five years.
- Comment: NOAA should work with state and local jurisdictions with authority to regulate uses or activities causing concern rather than creating new authorities.
Response: NOAA has regulated MPWC use in MBNMS since 1993 and in GFNMS since 2001. State and local jurisdictions overlay less than 20% of MBNMS waters. Local governments have no mandates or authority to issue MPWC regulations throughout State and Federal waters of MBNMS. Where local marine jurisdictions exist, they seldom extend seaward of the 60-ft depth line and are geographically constrained. In addition, regulation of MPWC is often inconsistent between local jurisdictions within the MBNMS. State and local regulations pertaining to MPWC are usually designed primarily for public safety purposes, not natural resource conservation purposes. MPWC operations present unique threats to marine resources of the sanctuary due to their relative size and weight. See MBNMS Motorized Personal Watercraft Action Plan for a description of uniqueness and subsequent impacts. By limiting use of the MPWC to certain areas, NOAA can ensure uniform and consistent management of this activity to minimize threats to protected national resources throughout MBNMS.
- Comment: NOAA should clarify what agency will enforce the provisions of the proposed regulations.
Response: Primary law enforcement responsibilities for NOAA regulations are assigned to NOAA's Office for Law Enforcement (OLE). Other federal and state agencies are also capable of enforcing NOAA regulations. For a complete description of enforcement responsibilities and partnerships see the responses to comments under the heading ‘‘Sanctuary Management— Enforcement.''
- Comment: The new definition of MPWC for MBNMS will have significant negative economic impacts.
Response: NOAA's socioeconomic assessment in the Draft and Final EIS found that the changes to the definition of MPWC for MBNMS have both beneficial and adverse socioeconomic impacts, and it concluded that overall negative socioeconomic impacts would be less than significant.
Prohibition and Exceptions
- Comment: The proposed MPWC definition change to include ‘‘any other vessel that is less than 20 feet as manufactured, and is propelled by a water jet pump or drive'' is very vague and significantly over-broad.
Response: The revisions to the definition provide readily visual cues for determining if a vessel qualifies as an MPWC, and focus on a very specific group of small, powered vessels. The agency has been specific in describing the vessels of concern and believes the proposed definition is sufficiently clear to identify them.
- Comment: NOAA should consider alternative regulatory language such as that used by the State of Hawaii which requires training and certification and a fixed speed of 5 miles per hour when within 300–1,000 feet of the shoreline.
Response: Vessel training curricula and certification requirements are boating safety and registration issues which are more appropriately managed by State and Federal boat licensing agencies. NOAA is not proposing licensing requirements. Rules implemented by the State of Hawaii to regulate MPWC were developed specifically to resolve boater safety and user conflict issues that had arisen in state coastal waters. The rules were amended in 1994 to make provisions for tow-in surfing activities and resolve mounting conflicts between traditional and tow-in surfing interests. The Hawaii rules were not developed in response to natural resource protection threats, nor are they specifically designed to ensure protection of nationally significant marine resources or sensitive habitat areas. No environmental studies were conducted as part of the rulemaking process for Hawaii MPWC regulations. Further, NOAA is not proposing a change to the MPWC regulation itself, but rather a revision to the definition.
- Comment: NOAA should develop a program to allow MPWC use in designated areas for tow-surfing activities.
Response: NOAA considered a permit program in the MBNMS Draft Management Plan and concluded no MPWC recreational activity could meet the required criteria for issuance of a Special Use Permit (see 15 CFR Sec. 922.133). NOAA will continue to allow MPWC use for all activities in four designated MPWC use zones, plus, per the final regulation (i.e., the FEIS preferred alternative), an additional zone specifically designed to accommodate big wave tow-in surfing.
During NOAA public scoping meetings in 2001, NOAA received comments that the Mavericks surf break at Half Moon Bay was a unique big wave tow-in surfing location in the continental United States, accessible only by MPWC tow-in techniques and should be given special consideration for MPWC access. Based upon the evidence that Mavericks was such a special national sporting venue, NOAA investigated whether allowing MPWC operations at that location could be accomplished in a manner compatible with the Sanctuary's primary goal of marine resource protection. As a result of the review, this final rule establishes a new MPWC zone off Pillar Point Harbor that will allow for recreational access via MPWC to the Mavericks surf break during National Weather Service high surf warnings issued for San Mateo County during December, January, and February. During the course of management plan development, NOAA also received public comment requesting that MPWC access be granted for big wave tow-in surfing at a surf break known as Ghost Trees, located off Pescadero Point in Carmel Bay. NOAA examined this venue, but due to several factors (including sensitive wildlife resources, distant launch sites and lengthy transit corridors, and impacts on marine protected areas), determined that authorization of MPWC activity at this location would not be consistent with the sanctuary's primary goal of resource protection. NOAA also received public comments that broad access to sanctuary waters should be granted to MPWC to support tow-in surfing at virtually any location within the sanctuary and under any surf conditions. Thus, in this final rule, NOAA has made a limited provision for MPWC assisted tow-in surfing at the unique big wave site known as Mavericks, but would continue to prohibit MPWC use outside of the designated riding zones that have been in place since 1993. Many professional and recreational surfers access breaking surf up to 20 feet in height within the sanctuary without the use of MPWC and have done so for decades.
- Comment: The existing MPWC zones are not used and should be removed.
Response: The existing MPWC zones are used in some areas of MBNMS, although the volume of use is currently low. As the definition of MPWC is extended to encompass larger MPWC models currently in use within the sanctuary, the larger models of MPWC not currently regulated will be restricted to the five zones. Therefore, use of sanctuary MPWC operating zones is expected to increase. NOAA is not closing any zones at this time. See above for additional discussion of zones.
- Comment: NOAA should allow MPWC use for emergencies such as rescue operations or vessel assistance and provide a method for emergency response training.
Response: NOAA continues to allow use of MPWC for emergency response purposes. The prohibitions listed in the regulations at 15 CFR Section 922.132(a)(2)–(11) do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment. NOAA has made provisions in the final management plan to support MPWC rescue and training operations by government search and rescue agencies operating within MBNMS. Search and rescue personnel specialize in public safety, and their training and operations are primarily focused on that mission priority. Prior to issuing any permits or authorizations for MPWC search and rescue training operations, NOAA will coordinate with government agency partners to ensure that training operations are conducted in a manner, and at times and locations, that minimize risk of disturbance or harm to protected resources and habitats within the Sanctuary.
- Comment: The MPWC issue is a user conflict between traditional paddle surfers and those who engage in tow-in and or tow-at surfing. NOAA should not discriminate between recreational activities.
Response: NOAA has regulated MPWC within MBNMS since 1993, prior to any significant use of MPWC by surfers within the sanctuary. NOAA is not regulating surfing activity and does not promote one style of surfing over another. NOAA is concerned with threats posed by current and future MPWC activity within the sanctuary (not surfing) and is updating an existing 15-year-old restriction of MPWC to specific areas in the sanctuary. In response to comments and staff analysis of various alternatives, this final rule adds a new zone to allow use of MPWC at Pillar Point (Mavericks) due to the unique geographic, oceanographic, and seasonal characteristics of that site. The zone would be in effect during National Weather Service high surf warnings issued for San Mateo County in December, January, and February.
- Comment: NOAA should update the MBNMS MPWC definition to protect wildlife and reduce user conflicts consistent with the original intent of the regulation.
Response: MPWC have special maneuver, thrust, and buoyancy capabilities distinguishing them from other watercraft, enabling sustained intrusion by MPWC into wildlife areas. See the response immediately below regarding protective measures by NOAA.
- Comment: MPWC should be regulated in the same manner as other small vessels.
Response: MPWC have several characteristics distinguishing them from other small vessels. MPWC are small, fast, and highly maneuverable craft that possess unconventionally high thrust capability and horsepower relative to their size and weight. This characteristic enables them to make sharp turns at high speeds and alter direction rapidly, while maintaining controlled stability. Their small size, shallow draft, instant thrust, and ‘‘quick response'' enable them to operate closer to shore and in areas that would commonly pose a hazard to conventional craft operating at comparable speeds. Many can be launched across a beach area, without the need for a launch ramp. Most MPWC are designed to shed water, enabling an operator to roll or swamp the vessel without serious complications or interruption of vessel performance. The ability to shunt water from the load carrying area exempts applicable MPWC from Coast Guard safety rating standards for small boats. MPWC are often designed to accommodate sudden separation and quick remount by a rider. MPWC are not commonly equipped for night operation and have limited instrumentation and storage space compared to conventional vessels. MPWC propelled by a directional water jet pump do not commonly have a rudder and must attain a minimum speed threshold to achieve optimal maneuverability. Most models have no steerage when the jet is idle.
These characteristics enable MPWC to conduct sustained operations in sensitive habitat areas where other vessels cannot routinely operate, thus posing serious disturbance threats to marine wildlife in those areas. In addition, NOAA has received comments that operation of these craft in a manner that optimizes their design characteristics (i.e., normal operation) poses unique threats to other human uses of Sanctuary nearshore areas. Further, see the 1995 U.S. Court of Appeals decision unanimously upholding NOAA's regulation of MPWC in MBNMS, Personal Watercraft Industry Association v. Department of Commerce, 48 F.3d. 540.
- Comment: NOAA lacks adequate data regarding endangerment or harassment to wildlife from MPWC.
Response: Local observations and documentation of MPWC disturbance of marine birds and mammals elsewhere, provide sufficient information identifying the risks of MPWC. The regulation of MPWC within the Sanctuary in 1993 stemmed partially from complaints of endangerment and harassment of marine mammals, including highly publicized claims that a MPWC operator was observed running over a sea otter, a species protected under the Endangered Species Act, near Monterey. Again, the adequacy of NOAA's administrative record for regulation of MPWC has already been upheld in court. (See previous responses.) NOAA has received written and oral reports of MPWC users harassing sea otters, harbor seals, porpoise, dolphin and other wildlife in various areas of the sanctuary since implementation of the regulation in 1993. Sometimes, due to high surf conditions, operators are unaware of their impacts on wildlife. For example, sea otter biologists have observed MPWC/sea otter interactions during high surf events. In the first incident, a sea otter biologist observed an MPWC tow a skier across the course of an otter swimming perpendicular to them in Stillwater Cove. Due to high swell conditions, the MPWC team never saw or responded to the otter as it crossed their path. In a second incident, Monterey Bay Aquarium volunteers observed an MPWC drive directly through a group of otters at Otter Point in Monterey Bay during high surf conditions. U.S. Fish and Wildlife Service biologists also report flushing of Common Murres from the Devil's Slide Common Murre restoration project due to MPWC use. Scientific research and studies across the United States (e.g., California, New Jersey, Florida) have produced strong evidence that MPWC present a significant and unique disturbance to marine mammals and birds different from other watercraft. Though some other studies have found few differences between MPWC and small motor-powered boats, they have not presented evidence to invalidate the studies detecting significant impacts.
In 1994, NOAA commissioned a review of recreational boating activity in MBNMS. The review provided statistics on MPWC use and operating patterns in the Sanctuary at the time and identified issues of debate from the research community regarding MPWC impacts on wildlife, but it made no formal conclusion or recommendation. A poll of Sanctuary harbormaster offices by NOAA in 2003 provided updated estimates on MPWC use in the Sanctuary that are discussed in the JMPR DEIS.
- Comment: Improvements in MPWC technology have reduced pollution and noise.
Response: NOAA acknowledges that MPWC technology has improved to reduce noise and pollution. However, MPWC have also become larger, faster, and more powerful, with extended ranges, and retain the maneuverability characteristics that increase the potential for disturbance of wildlife, including acute turns at high speeds, rapid course alterations, and ability to operate closer to shore and in areas that would commonly pose a hazard to conventional craft operating at comparable speeds. Though newer MPWC are quieter than older models under normal displacement conditions, such improvements are largely irrelevant when MPWC launch into the air off of waves or breaking surf. Also, lower sound intensity (decibel level) does not equally reduce the effects of oscillating sound caused by persistent throttling (revving) of the engine during repeated acceleration/deceleration within the surf zone (which is often necessary to avoid capsizing and pitch polling). Research and observations have shown that this frequent oscillating sound pattern of irregular intensities can be particularly disruptive to wildlife and humans. This is the very sound pattern that often elicits complaints from coastal residents and beachgoers. Many newer MPWC models have 4-stroke engine technology or cleaner 2-stroke engine technology required to meet increased governmental emissions standards. While cleaner emissions are welcomed, this improvement has little bearing on the primary reasons for regulating MPWC within MBNMS.
- Comment: NOAA should work with the MPWC industry to develop user education programs.
Response: The MBNMS Management Plan includes Strategy MPWC–3: Conduct Educational Outreach to MPWC Community, which identifies the Personal Watercraft Industry Association and American Watercraft Association as potential education and outreach partners. These organizations, as well as agencies such as the California Department of Boating and Waterways, conduct user education programs throughout the State. NOAA will continue to work with these agencies and organizations to increase understanding of MPWC etiquette as well as the regulations regarding MPWC use in a national marine sanctuary.