Nwm Coral Reef Ecosystem Reserve Reserve Advisory Council Meeting June 20, 2007

"A window into the monument management plan development process"

The meeting began with accolades for the accomplishments of the reserve advisory committee (RAC) and with assurances that their work is being incorporated into the Monument management plan (MMP). NOAA expressed the value of the RAC in building the foundation for the monument and for their work at over 100 meetings since inception.)

NOAA asserted the Monument is a new paradigm for agency cooperation that is different than past arrangements but has resulted in a better management partnership and has taken cooperative management to a new level. Part of NOAA and the Co-Trustees' responsibility with the Monument is to determine how best to retain a connection to the constituency and involve public input, outreach and education.

One option they are investigating is to ask the RAC to remain together as a body and provide comments on the monument management plan. 2 Essentially the RAC would function as a public entity, but RAC comments on the MMP would be given a lot of weight by the Co-Trustees. The RAC inquired about whether they would have a successor body and the Co-Trustees replied that they are still working this out - the discussion is evolving organically. The old RAC charter has run out, but NOAA has re-authorized the charter to be able to allow the RAC to continue meeting in the interim while NOAA and the Co-Trustees figure out the future of the RAC and the best options for allowing public input into the management of the monument.3 The advisory council is allowed under the Nat'l Marine Sanctuary Act, but Monument status does not contain statutory language for advisory council formation.

RAC members inquired about whether their management plans are being incorporated into the monument management plan (MMP) and' Aulani Wilhelm with NOAA replied that they were going through a process similar to the process when the Reserve Operations Plan had to be converted to the Draft NWHI Marine Sanctuary Management Plan. An elaborate matrix was developed in that process that allowed for comparison between the various elements of those plans. The draft sanctuary plan is the basis for the MMP. The legal bases for the MMP include the Presidential Proclamation, the Fish and Wildlife Refuge and the State Refuge, which all have to be integrated for co-management by the Co-Trustees.

The FWS is the lead agency in constructing the MMP, and they are integrating their mandate to construct Comprehensive Conservation Plans (CCPs) into the draft NWHI marine sanctuary management plan. The Co-Trustees collectively agreed to use the draft marine sanctuary plan as the template. The MMP is basically the draft NWHI marine sanctuary plan plus the Comprehensive Conservation Plan. New components required of the CCPs include preservation plans for historic buildings at Midway, for example. The FWS wants to ensure a robust public comment period for the MMP, but they are under a tight time schedule to implement co-management. Creating a public

1 NOAA explained that the Executive order provided sanctuary designation process and foundation. They expressed that the RAC was rocky in the beginning, but that eventually, through working together, they had a huge accomplishment: the NWHI Monument. NOAA explained that other accomplishments included the co­trustees and an umbrella for agency collaboration ad an improved relations of the integrated working body. 2 Interestingly, NOAA stated that the RAC could comment on the management plan, but could not provide advice to NOAA or Co-Trustees any way otherwise. 3 This was corroborated by NOAA staff (Keeley Belva) after the meeting. The Nat'l Marine Sanctuary Advisory Council Coordinator (Linda? - in Seattle) re-authorized the charter.

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process is time-intensive because the Co-Trustees have different public processes in their different mandates.

RAC members inquired whether there were anything in the Co-Trustees' management structures that would allow for an advisory council. NOAA replied that the Nat'l Marine Sanctuary Act is exempt from the Federal Advisory Committee Act (F ACA), and that getting exemption from FACA is difficult but can be done. Creating the MMP has enhanced the relationship between the Co-Trustees. FWS added that this is the only marine monument, so it's all new.4 The Co-Trustees have discussed ways to involve an advisory council but they don't have the legal authority. There may be other ways to involve "constituency building" and public involvement other than an advisory council structure. They are looking at the myriad of options for including public involvement in MPA management. This includes looking at a range of mechanisms including an advisory council. They are also looking internationally, and at other MPAs that cross jurisdictions and involve multiple agencies.

NOAA presented a history of past RAC accomplishments; among these were the establishment of -37 goals and objectives for the former reserve and various zonation schemes for the proposed sanctuary. NOAA stressed the PMNM was the result of RAC work in building the management framework for the reserve. It hasn't been easy integrating the various agencies into a Co-Trustee relationship - the agencies are set up to compete for funds. But the Co-Trustees have been successful in creating a cooperative working group within the Monument Management Board to develop a ;oint agency MMP document. The Monument Management Board, however, has no public members. Additionally, a private company has been enlisted to help in NEPA compliance.6

International efforts include facilitation of the "Our Sea of Islands" Pacific regional meeting on MPA management. They have an application to the US World Heritage Tentative List, for which the State of Hawaii is taking the lead. NOAA is working with the Int'l Maritime Organization (IMO) on some IMO designations including shipping lanes, Particularly Sensitive Sea Areas (PSSAs), and Areas to be Avoided.7 The application was submitted in April and will be reviewed at the IMO meeting in London in July. NOAA is seeking to expand existing Areas to be Avoided that were first implemented by the FWS -20 years ago. They are also hoping to get a better handle on the intensity of shipping traffic and establish three major shipping lanes (PearllHermes, Midway, and between Nehoa & Necker). The application raises int'l awareness of the PMNM. NOAA is also trying to establish a voluntary international ship reporting system.8 Currently all domestic ships are required to report their positions and intended routes 24 hours prior to entry to the US Coast Guard, who will provide recommended routes.9

4 There was no mention of other marine monuments (e.g. Virgin Islands Coral Reef Monument) S The Monument Management Board was established by the MOA, signed in December. OHA is a member of the Monument Management Board. The MOA also established a Senior Executive Board for the PMNM. 6 Tetra Tech was hired as an independent contractor to help the Co-Trustees comply with NEPA requirements. There was no discussion about whether this was a contract that was sent out to bid. 7 Thee is lots of traffic in Midwayan by getting the proposal to the IMO they are hoping this will raise awareness about the monument and its environmental sensitivities. 8 They would like to make it a mandatory reporting system for domestic ships and voluntary for international ships. They hope that the domestic reporting will start as early as next year, but the others possibly in 2009 9 Sean Corson stated after the meeting that the IMO proposals have a good chance of approval. He believes Linda Johnson, the NOAA maritime attorney attending the IMO meeting will push it through. The biggest obstacles have been the US State Dept and the DOD, who have opposed such reporting schemes in places like the Torres Strait. Sean said voluntary int'l ship reporting has worked in other areas and that captains seek to get recommended routes to decrease navigational risks. If they go through, implementation will be around 2009.

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Surveillance and enforcement continue to be a big issue. The low estimate is 132 ships per year, who reported entry into the monument in 2006.10 A contract was put out to bid to do a cumulative analysis of threat assessments and surveillance solutions, including a geographical assessment for patterns and locations of activities in the PMNM.II NOAA is also seeking a new hire for an enforcement coordinator for the monument.

An extensive evaluation of field operations has also begun - this is primarily to streamline and make effective the various activities of the Co-Trustees in the PMNM. They stressed there was to be no new construction of facilities, only an inventory of existing facilities (e.g. the FWS camp at Laysan). The marine debris effort will continue as well. A new approach is being tested for the PMNM that has shown some success in Alaska. This includes using unmanned aerial vehicles launched over the convergence zone north of the monument to identify and characterize the debris field and how debris is influenced by oceanography in the area. A satellite tag or ID will be added to debris to track movement and deposition and possible interception prior to deposition is being considered. Estimates for deposition rates in the PMNM have been revised upwards from 19 million tons to over 52 and the Co-Trustees want to expand the removal effort to at least match and eventually exceed accumulation rates.

RAC members inquired about whether the liability clauses in the draft NWHI sanctuary plan would carry over to the new MMP. NOAA replied that unfortunately that mechanism existed under the National Marine Sanctuaries Act (NMSA). The Coral Reef Conservation Act (CRCA) may have some applicability and has been reauthorized (? - unclear) by Congress; the NMSA is being considered for reauthorization. The CRCA has a resource damage assessment clause that would apply to the PMNM. The state has liability protections for the monument for actions in state waters. A potential UNESCO world heritage site designation may establish some international standards.

NOAA and the Co-Trustees have also invested countless hours in the development of the joint permit process. The new joint permit is active as of May 2007. A key issue was the process by which permits were issued for activities outside of state waters (within state waters involves the Land Board's public processI2). For these activities, NOAA's approval comes ultimately from 'Aulani Wilhelm and Barry Stiglitz from FWS. Tim Johns of the Land Board, who led the meeting, inquired as to whether the state only had an administrative approval of these activities, since these permits were not being heard at the Land Board meetings. NOAA replied that only certain permits contain activities that trigger the EAlEIS process, and that these were primarily Special Ocean Use permits. Permits that did trigger the EA process were made publicly available for comments for 15 days; the 15 day minimum period stems from a decision of the 9th Circuit. NOAA replied that the current process is the result of the legal mechanisms available and the process is still evolving; the state "landlord" process is just one mechanism available. RAC members questioned whether the MMP would contain a public process for all permits.13

10 In response to a RAe member inquiry, it was also noted that # of vessel days in the monument for the ships that reported is also available. II The contract also includes a) synthesis of previous work and existing data, b) costlbenefit analysis for various solutions for surveillance and enforcement, c) a pilot study. 12 State waters are generally accepted to be 0-3 nm, with the baseline being established by the Diamond decision (2006) as the vegetation or high-tide debris line, whichever is further mauka. The state, however, has not relinquished its claim to "archipelagic waters," which include waters in between islands. Have we looked at this? 13 This was a point heavily expanded upon during the public comment period. Stephanie Fried of Environmental Defense and Marti Townsend of KAHEA stated that the Land Board meetings were really the only process available to the public to be involved in decisions on permits.

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A research plan is also being developed for the PMNM. Part of this was a revised monitoring protocol. 14 The research plan was developed in collaboration with Co-Trustees; it appears that HIMB also retained a strong connection. Part of the research plan was an information management system that would make access to data avaiiable,15 which would aid in the evaluation of permit application and cumulative impacts. RAC questioned whether the research plan would prioritize research that supported management goals and objectives. NOAA replied that this is not currently part of the research plan but may be part of the unified MMP. A RAC member replied that currently the monk seal population is declining, and that it is primarily a problem of food availability - why is this not a research priority?

The public comment period followed, during which members of the public pushed for the RAC to be involved in the monument management. The working group template, established by the RAC is now being used by the Monument Management Board, albeit without the public involvement that characterized RAC working groups. There was a feeling of public "lockout" and that this was the first window into the development of the management plan for the PMNM. Marti Townsend from KAHEA described the process as occurring "in a windowless submersible somewhere down the deep blue sea," and that they needed to "raise the submersible, open the hatch and have a look inside." Members were upset that they only had one week's notice for the RAC meeting, the first in over a year. Environmental Defense and KAHEA had prepared a list of public comments (l14K) on the draft plan, and urged the Co-Trustees to involve the public during the crafting of the plan, and not solely during the EIS process, after they had developed a "near-decisional" document. The "Makaha Retreat" in April 2005 had resulted in a heavily critiqued Reserve Operations Plan that had "disappeared." KAHEA and ED highlighted their successes in getting bio-hazard and invasive species protocols attached to permits approved by the Land Board, and were dismayed at the lack of public process for activities not in state waters. The RAC had spent countless hours crafting management plans that involved the public - it was a painful process but resulted in a better plan. Public support for management plans tended to lead to funds; lack of public support leads to lack of funds and approval of consumptive uses. The RAC was the public portal for the NWHI, which is a public trust. KAHEA pointed out that it takes approximately six months to receive a F ACA approval and that the Co-Trustees could have pursued this one year ago for the RAC to be involved - why is this route not taken? They called on the Co-Trustees to release the interim management plan and involve the public before the EIS process, which doesn't require incorporation of public comments and is only for a scant 45 day period.16

A brief session followed, entitled "Lessons Learned," during which RAC members were invited to provide comments on specific NOAA questions about the effectiveness of the advisory council. RAC members then pressed the Co-Trustees on the MMP. Don Palawski with the FWS, lead agency on the MMP development, assured the RAC that the MMP would have the same organization as the draft NWHI marine sanctuary management plan, including an introduction, threats to the PMNM, and then a series of "action plans," that constituted the bulk of the MMP.

14 The Reef Assessment & Monitoring Protocol ("RAMP") was developed by Jerry Ault & Steve Smith from the University of Miami IS A potential conflict exists with the joint permit general conditions. A clause allows researchers to retain copyright to data generated from research activities. There may be data ownership conflicts with this information management system. NOAA interim monument management plan was completed in early June by Kevin Graham of NOAA. The draft Monument Management Plan will be available in early 2008. There is a list serve that anyone can sing into through website for updated info on the website. 16 One of the Native Hawaiian members stated she was very bothered by the elimination of the RAe. She stated that the government too over and the people lost. She stated she was very wary of the government and that there should be public input. She also stated that because of advisory problems from past efforts she feels that the government would not understand the unique problems of the monument.

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Members agreed it would require extensive homework to provide robust commentary and a two-day meeting. The RAC would break into their previously-established working group format to address the four critical areas of the MMP, including 1) Research, 2) Education/Outreach, 3) Native Hawaiian Issues, and 4) Management. 17 The FWS would be available to facilitate the process as well as NOAA.

The RAC discussed formally two sets of actions: 1) Whether to meet again as a body to provide input on the MMP, and 2) Whether to issue a formal statement on the continuing involvement of the RAC in the

management of the PMNM. Both initiatives passed unanimously. The RAC issued a formal statement advocating the continued involvement of an advisory council in the ongoing management of the PMNM (exact language forthcoming).

17 Members agreed to communicate via email with NOAA's assistance. Former Chairs of the working groups would lead the efforts. Two working groups (Research & Management) are actually designated as "Subcommittees," which can only include RAC members. Working groups can contain additional members and a public process. These designations are still active since the Charter has been re-authorized.

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

research plan but may be part of the unified MMP. A RAC member replied that currently the monk seal population is declining, and that it is primarily a problem of food availability - why is this not a research priority?

The public comment period followed, during which members of the public pushed for the RAC to be involved in the monument management. The working group template, established by the RAC is now being used by the Monument Management Board, albeit without the public involvement that characterized RAC working groups. There was a feeling of public "lockout" and that this was the first window into the development of the management plan for the PMNM. Marti Townsend from KAHEA described the process as occurring "in a windowless submersible somewhere down the deep blue sea," and that they needed to "raise the submersible, open the hatch and have a look inside." Members were upset that they only had one week's notice for the RAC meeting, the first in over a year. Environmental Defense and KAHEA had prepared a list of public comments (1 14K) on the draft plan, and urged the Co-Trustees to involve the public during the crafting of the plan, and not solely during the EIS process, after they had developed a "near-decisional" document. The "Makaha Retreat" in April 2005 had resulted in a heavily critiqued Reserve Operations Plan that had "disappeared." KAHEA and ED highlighted their successes in getting bio-hazard and invasive species protocols attached to permits approved by the Land Board, and were dismayed at the lack of public process for activities not in state waters. The RAC had spent countless hours crafting management plans that involved the public - it was a painful process but resulted in a better plan. Public support for management plans tended to lead to funds; lack of public support leads to lack of funds and approval of consumptive uses. The RAC was the public portal for the NWHI, which is a public trust. KAHEA pointed out that it takes approximately six months to receive a F ACA approval and that the Co-Trustees could have pursued this one year ago for the RAC to be involved - why is this route not taken? They called on the Co-Trustees to release the interim management plan and involve the public before the EIS process, which doesn't require incorporation of public comments and is only for a scant 45 day period.

A brief session followed, entitled "Lessons Learned," during which RAC members were invited to provide comments on specific NOAA questions about the effectiveness of the advisory council. RAC members then pressed the Co-Trustees on the MMP. Don Palawski with the FWS, lead agency on the MMP development, assured the RAC that the MMP would have the same organization as the draft NWHI marine sanctuary management plan, including an introduction, threats to the PMNM, and then a series of "action plans," that constituted the bulk of the MMP.

Members agreed it would require extensive homework to provide robust commentary and a two-day meeting. The RAC would break into their previously-established working group format to address the four critical areas of the MMP, including 1) Research, 2) Education/Outreach, 3) Native Hawaiian Issues, and 4) Management. 12 The FWS would be available to facilitate the process as well as NOAA.

The RAC discussed formally two sets of actions: 1) Whether to meet again as a body to provide input on the MMP, and 2) Whether to issue a formal statement on the continuing involvement of the RAC in the

management of the PMNM. Both initiatives passed unanimously. The RAC issued a formal statement advocating the continued involvement of an advisory council in the ongoing management of the PMNM (exact language forthcoming).

12 Members agreed to communicate via email with NOAA's assistance. Former Chairs of the working groups would lead the efforts. Two working groups (Research & Management) are actually designated as "Subcommittees," which can only include RAC members. Working groups can contain additional members and a public process. These designations are still active since the Charter has been re-authorized.

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

An extensive evaluation of field operations has also begun - this is primarily to streamline and make effective the various activities of the Co-Trustees in the PMNM. They stressed there was to be no new construction offacilities, only an inventory of existing facilities (e.g. the FWS camp at Laysan). The marine debris effort will continue as well. A new approach is being tested for the PMNM that has shown some success in Alaska. This includes using unmanned aerial vehicles launched over the convergence zone north of the monument to identify and characterize the debris field and how debris is influenced by oceanography in the area. A satellite tag or ID will be added to debris to track movement and deposition and possible interception prior to deposition is being considered. Estimates for deposition rates in the PMNM have been revised upwards from 19 million tons to over 52 and the Co-Trustees want to expand the removal effort to at least match and eventually exceed accumulation rates.

RAC members inquired about whether the liability clauses in the draft NWHI sanctuary plan would carry over to the new MMP. NOAA replied that unfortunately that mechanism existed under the National Marine Sanctuaries Act (NMSA). The Coral Reef Conservation Act (CRCA) may have some applicability and has been reauthorized (? - unclear) by Congress; the NMSA is being considered for reauthorization. The CRCA has a resource damage assessment clause that would apply to the PMNM. The state has liability protections for the monument for actions in state waters. A potential UNESCO world heritage site designation may establish some international standards.

NOAA and the Co-Trustees have also invested countless hours in the development of the joint permit process. The new joint permit is active as of May 2007. A key issue was the process by which permits were issued for activities outside of state waters (within state waters involves the Land Board's public process8

). For these activities, NOAA's approval comes ultimately from 'Aulani Wilhelm and Barry Stiglitz from FWS. Tim Johns of the Land Board, who led the meeting, inquired as to whether the state only had an administrative approval of these activities, since these permits were not being heard at the Land Board meetings. NOAA replied that only certain permits contain activities that trigger the EAlEIS process, and that these were primarily Special Ocean Use permits. Permits that did trigger the EA process were made publicly available for comments for 15 days; the I 5 day minimum period stems from a decision of the 9th Circuit. NOAA replied that the current process is the result of the legal mechanisms available and the process is still evolving; the state "landlord" process is just one mechanism available. RAC members questioned whether the MMP would contain a public process for all permits.9

A research plan is also being developed for the PMNM. Part of this was a revised monitoring protocol. lO The research plan was developed in collaboration with Co-Trustees; it appears that HIMB also retained a strong connection. Part of the research plan was an information management system that would make access to data available, II which would aid in the evaluation of permit application and cumulative impacts. RAC questioned whether the research plan would prioritize research that supported management goals and objectives. NOAA replied that this is not currently part of the

8 State waters are generally accepted to be 0-3 nm, with the baseline being established by the Diamond decision (2006) as the vegetation or high-tide debris line, whichever is further mauka. The state, however, has not relinquished its claim to "archipelagic waters," which include waters in between islands. Have we looked at this? 9 This was a point heavily expanded upon during the public comment period. Stephanie Fried of Environmental Defense and Marti Townsend of KAHEA stated that the Land Board meetings were really the only process available to the public to be involved in decisions on permits. 10 The Reef Assessment & Monitoring Protocol ("RAMP") was developed by Jerry Ault & Steve Smith from the University of Miami II A potential conflict exists with the joint permit general conditions. A clause allows researchers to retain copyright to data generated from research activities. There may be data ownership conflicts with this information management system.

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

from the Federa l Advisory Com mittee Act (FACA), and that getting exemption from FACA is d ifficu lt but can be done. Creating the MMP has enhanced the relat ionship between the Co-Trustees. FWS added that this is the only marine monument, so it's a ll new.' The Co-Trustees have discussed ways to involve an advi sory counci l but they don 't have the legal authority. There may be other ways to invo lve "consti tuency building" and public involvement other than an advisory counci l structure. They are looking at the myriad of options for includ ing public invo lvement in MPA management. This includes looki ng at a range of mechanisms including an advisory council. They are also looking internationally, and at other MPAs that cross jurisdictions and involve multiple agencies.

NOAA presented a history of past RAC accomp li shments; among these were the establishment of - 37 goa ls and obj ectives for the fo rmer reserve and various zonation schemes for the proposed sanctuary. NOAA stressed the PMNM was the result of RAC work in building the management framework for the reserve. It hasn' t been easy integrating the various agencies into a Co-Trustee relationship - the agencies are set up to compete fo r funds. But the Co-Trustees have been successfu l in creating a cooperat ive worki ng group w ithin the Monument Management Board to develop a j oint agency MMP document. The Monument Management Board, however, has no publi c members" Additiona lly, a private company has been en listed to help in NEPA compliance'

International efforts include faci litation of the "Our Sea of Is lands" Pacific re ional meetin on PA ~agement. They have an appl ication to the World Heritage Tentative List, for which the State of Hawa II IS taking the lead . NOAA is work ing with the Int ' l Maritime Organ ization ( IMO) on some IMO designations including shipping lanes, Particu lar ly Sensitive Sea Areas (PSSAs), and Areas to be Avoided. The appl ication was submitted in April and will be rev iewed at the IMO meeting in London in July. NOAA is seeking to expand existing Areas to be Avoided that were first implemented by the FWS -20 years ago . They are also hoping to get a better handle on the intens ity of shipping traffic and establish three major shi pp ing lanes (Pearl/Hermes, Midway, and between Nehoa & Necker). The application rai ses int ' l awareness of the PMN M. NOAA is also trying to establi sh a vo luntary international ship reporting system. Cu rrently a ll domest ic ships are required to report the ir positions and intended routes 24 hours prior to entry to the US Coast Guard, who will provide recommended routes.'

Surveillance and enforcement continue to be a big issue. The low estimate is L3 2 ships per year, who reported entry into the monument in 2006' A contract was put out to bid to do a cumulative analysis of threat assessments and survei ll ance solut ions, including a geographica l assessment for patterns and locations of act ivit ies in the PMNM.' NOAA is also seeking a new hire for an enforcement coordinator for the monument.

2 There was no mention of other mari ne monuments (e.g. Virg in Islands Coral Reef Monument) ) The Monumen! Management Board was established by the MOA, signed in December. OHA is a member of the Monumen! Managemen! Board. The MOA also established a Senior Executive Board for the PMNM . 'Tetra Tech was hired as an independent contractor to help the Co-Trustees comply with NEPA requ irements. There was no discussion about whether this was a contract that was sent out to bid. , Sean Corson stated after the meeting that the IMO proposals have a good chance of approval. He be lieves Lind¥ Johnson, the NOAA maritime attorney attending the IMO meeting will push it through. The biggest ) obstacles have been the US State Dept and the DOD, who have opposed such report ing schemes in places like ~ Torres Strajt. Sean said vo luntary int ' l ship reporting has worked in other areas and that captains seek to get recommended routes to decrease navigational risks. If they go through, implementation will be around 2009. 6 In response to a RAC member inquiry, it was also noted that # of vessel days in the monument for the ships that reported is also available. 7 The contract also includes a) synthesis of previous work and existing data, b) cost/benefit analysis for various solutions for survei llance and enforcement, c) a pilot study.

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection