TGCC written response to Flower Gardens Draft Management Plan
Date: January 13, 2011
My name is Todd Hasken, and I'm the President of the Texas Gulf Coast Council of Diving Clubs (TGCC). Last month, Mr. Frank Burek presented some of TGCC's comments regarding the Draft Management Plan (DMP) to Mr. George Schmahl, Manager of the Flower Garden Banks National Marine Sanctuary (FGBNMS). This was done at the Public Comment section of the FGBNMS Sanctuary Advisory Council meeting on November 17th.
As covered at the public meeting, TGCC feels the DMP is very well done and generally supports the plan. We support boundary expansion and the maintenance and expansion of the buoy mooring system. We think the Alpha and Diver Down flags should both be flown. We looked at the budget for this plan and believe that "smaller" is probably better. Finally, we looked at the discussion of fishing and diving impact studies and decided to wait for additional facts and implementation proposals to determine whether this is pertinent or a waste of taxpayer's money.
TGCC would now like to build further on these comments and our understanding of the DMP. Our primary concern is the proposed rules on "Rays and Whale Sharks". We are also concerned about the expansions plan as it relates to the enforcement of rules across all the banks.
Research and Monitoring
TGCC supports the FGBNMS staff's effort to develop "user" information through the "Visitor Use Action Plan" vessel registration system and visitor monitoring program (VU.1 activity 1.1 and activity 1.2), along with "scientific" information from the "Research and Monitoring" long-term monitoring programs. The DMP provides for a vast collection of information that should assist the sanctuary staff in managing this valuable natural resource. This resource was entrusted to them by the local community (recreational divers, recreational fishermen, researchers, Oil & Gas industry and boaters) and we will continue to monitor the execution of that responsibility.
Sanctuary Expansion Action Plan (SEAP)
TGCC supports asymmetrical regulation of each bank in the sanctuary. As new banks are incorporated into the FGBNMS an effort should be made to identify the current boating, diving and fishing practices associated with each bank. Rules for each bank may differ as only environmentally detrimental practices, such as anchoring, should be regulated. That means spear fishing might be allowed and evaluated on some of the banks. One reason to consider this is that with the advance of Lionfish into the Gulf of Mexico, the Sanctuary needs to position itself if it wants to utilize the diving public to help it protect the sanctuary's eco-system.
TGCC emphasizes the need for effective protection and law enforcement for all banks. When you highlight and raise the visibility of marine areas by making them part of a National Marine Sanctuary, you are painting a target on them. Without a reputation of diligent protection you set them up to be plundered and/or damaged. The problem is not the current users, it's not all the new users, it's those few new ones who didn't know what was available and want to catch up for lost time. In short - additions to the national sanctuary system (NMS) should not occur until the NMS is able and willing to provide the proper level of protection.
Proposed rules on "Rays and Whale Sharks"
TGCC has been advised that several items are past the DMP stage and are now being proposed as rules, specifically the proposed rules on "Rays and Whale Sharks". TGCC feels that this is a "feel good" piece of regulation that is over generalized, specific about the wrong things, and trying to fix a problem that is not of any significance at the FGBNMS. TGCC is especially concerned about the following items.
The proposed rules should address "Manta Rays and Whale Sharks".
Of the "20 species of sharks and rays …documented at the Flower Garden and Stetson Banks" only the Manta ray and Whale Shark are addressed and continually referred to in the Proposed Rules.
922.121 Definitions - "Disturb or disturbing a ray or whale shark"
TGCC believes there are problems with generalizing to all rays. If these rules become final they should address only Manta and Mobula rays. Different types of rays act differently and generalizing a Manta Rays behavior to a stingray is not appropriate.
The definitions and terms such as "attracting" and "disturbing" are too vague and subjective.
TGCC does not support the discussion and definition of "touching" or "disturbing". TGCC does not support some of the information as provided in the Federal Register, section II.D (Killing, Injuring, Attracting, Touching or Disturbing a Ray or Whale Shark). Many of the definitions are too vague and subjective. For example, the word "pursue" is vague since swimming towards, swimming along with, trying to get closer, swimming parallel, and entering the water to begin your dive are all actions that can be viewed as pursuing.
The "conduct any other activity that disrupts or has the potential to disrupt any ray or whale shark in the Sanctuary" also presents problems to divers, boaters and regulatory authorities. Activities such as a vessel entering the sanctuary, divers getting up in the morning, or divers entering the water have the potential to create a chain of events that ultimately disrupt some ray or whale shark. Trying to guess what diver or animal initiated action is going signal the end of a Manta or Whale Shark interaction should not be put on the shoulders of diver or boater.
The rules do not address the fact that these creatures initiate most interaction.
What is missing from section II.D are three important facts - that (1) Manta Rays and Whale Sharks are very intelligent animals (fish) who make their own decisions; that (2) these animals are the initiators of any interaction between themselves, divers and/or boaters; and that (3) they learn from their experiences and that affects their future behavior.
The following are observations pertaining to these creatures' intelligence, decision making and personal desire for human interaction. Whale sharks have been observed rubbing against vessels and oil & gas platforms. Mantas have been observed to swim in from areas of the banks that are deeper than scuba diving limits and wait for divers to enter the water. Often what is observed is that once divers are in the water, one or two Mantas will stop what they are doing, and swim in among the divers. These creatures are seen by divers and boaters only when they want to be seen. For a diver on scuba, the Manta or Whale Shark must initiate the contact or interaction. No diver on scuba has ever "sneaked up" on these fish. And when they want to leave, they depart with such grace and speed that they leave any diver in the dust.
Section II.D states that "the intent is to prevent human interaction with rays and whale sharks in such a manner that the animals change direction, dive away from human interaction, shudder, or have any other adverse behavioral or physical reaction". TGCC believes that these are part of the animal's communication. They are the last parts of an interaction and are normal behaviors. Calling them adverse behavioral or physical reactions is not appropriate. Even a sanctuary vessel pulling up to a mooring buoy, or putting divers in the water, probably causes a ray somewhere to change direction, or a Manta Ray to stop its behavior and fly in to see what's up.
TGCC believes that most divers go out to the FGBNMS hoping to have a wildlife experience. They expect to be right in there among an abundance of marine life. In descending order the highlight of their trip is to interact with a Whale Shark, Manta Ray, see large fish or schools of fish and dive on a healthy coral reef. In pursuit of their dreams they are in violation of these proposed regulations the minute the boat enters the sanctuary boundary.
The rules do not provide instructions and procedures for how to handle contact or disengage from an interaction when it is no longer appropriate.
Because most of diver / vessel contact with these animals is creature initiated, TGCC recommends that these rules contain instructions for a preferred method of handling them. Regulation infraction should be for not handling the situation properly instead of as proposed where the violation for "touching or disturbing" is based upon these creatures' normal communication display. Examples of the user instruction approach are: " Diver and Manta Ray or Whale Shark - Diver experiencing physical contact must refrain from rubbing the animal and immediately back away five feet from the animal. If the animal approaches again, the diver is to back off and leave the immediate area. " Vessel at mooring - If a Whale Shark or Manta Ray is close or in contact with the vessel, the vessel should remain moored and the props stopped. Vessel should not leave the mooring until the animals have departed. " Vessel underway in the Sanctuary - Whale Sharks and Manta Rays should not be followed by a vessel in the sanctuary. If traversing the sanctuary, continue in a manner that does not bring you closer to the creatures. If you are planning to stay, proceed to a mooring and moor only when the animal (s) is a safe distance away. " Oil & Gas Platforms in the sanctuary - No action is to be taken if a whale shark or manta ray rubs, swims through or swims close to the platform structure. " Vessel attached to an oil & gas platform - If a Whale Shark or Manta Ray is close or in contact with the vessel, vessel should remain moored and props running as necessary to control the vessel. Vessel should not leave the mooring until the animals have departed.
The proposed rules, if interpreted to the letter of the law, might force dive vessels to go out of business.
Section III. Classification, E. Regulatory Flexibility Act, paragraphs on "Regulation to protect rays and whale sharks. - This section discusses the economic impact on businesses currently operating vessels that go to the FGBNMS. Clarity is especially important because in addition to being the basic bible of Law Enforcement, under the "Visitor Registration System" and user reporting system all visitors are expected to report any incident that they feel violates these rules. Interpreting of these rules as written would result in the NOAA divers and sanctuary researchers racking up the most violations. The severe penalties for violations coupled with the vague definitions and lack of specific procedures make it impossible to remain in compliance with any degree of certainty. Businesses cannot operate in a climate of fear and uncertainty.
The use of science from the Cayman Islands to draft rules is a cause of concern because the interactions of divers and boaters in both locations are completely different.
Some explanation about why the Cayman Islands are different from the FGBNMS is necessary. In the Cayman Islands they have:
In summary, with respect to the "Rays and Whale Shark" proposed rules TGCC recommends that if finalized, the "Rays" becomes "Manta and Mobula rays". That interaction between these fish, divers and boaters remain acceptable until one of them has communicated its intent to end the interaction. That appropriate methods for disengaging or removing one's self from contact be specified and that definitions be developed to more accurately describe what is "pursuing" or "disturbing". The actions of these intelligent creatures must also be explained and taken into account.
It's difficult to visualize how these "Rays and Whale Shark" regulations will be implemented and interpreted, but if they live up to their wording - TGCC will have to advise it's members to dive elsewhere.
Thank you for the opportunity to submit comments and improve the DMP and proposed regulations.
Todd Hasken
President - Texas Gulf Coast Council of Diving Clubs
Date: January 13, 2011
My name is Todd Hasken, and I'm the President of the Texas Gulf Coast Council of Diving Clubs (TGCC). Last month, Mr. Frank Burek presented some of TGCC's comments regarding the Draft Management Plan (DMP) to Mr. George Schmahl, Manager of the Flower Garden Banks National Marine Sanctuary (FGBNMS). This was done at the Public Comment section of the FGBNMS Sanctuary Advisory Council meeting on November 17th.
As covered at the public meeting, TGCC feels the DMP is very well done and generally supports the plan. We support boundary expansion and the maintenance and expansion of the buoy mooring system. We think the Alpha and Diver Down flags should both be flown. We looked at the budget for this plan and believe that "smaller" is probably better. Finally, we looked at the discussion of fishing and diving impact studies and decided to wait for additional facts and implementation proposals to determine whether this is pertinent or a waste of taxpayer's money.
TGCC would now like to build further on these comments and our understanding of the DMP. Our primary concern is the proposed rules on "Rays and Whale Sharks". We are also concerned about the expansions plan as it relates to the enforcement of rules across all the banks.
Research and Monitoring
TGCC supports the FGBNMS staff's effort to develop "user" information through the "Visitor Use Action Plan" vessel registration system and visitor monitoring program (VU.1 activity 1.1 and activity 1.2), along with "scientific" information from the "Research and Monitoring" long-term monitoring programs. The DMP provides for a vast collection of information that should assist the sanctuary staff in managing this valuable natural resource. This resource was entrusted to them by the local community (recreational divers, recreational fishermen, researchers, Oil & Gas industry and boaters) and we will continue to monitor the execution of that responsibility.
Sanctuary Expansion Action Plan (SEAP)
TGCC supports asymmetrical regulation of each bank in the sanctuary. As new banks are incorporated into the FGBNMS an effort should be made to identify the current boating, diving and fishing practices associated with each bank. Rules for each bank may differ as only environmentally detrimental practices, such as anchoring, should be regulated. That means spear fishing might be allowed and evaluated on some of the banks. One reason to consider this is that with the advance of Lionfish into the Gulf of Mexico, the Sanctuary needs to position itself if it wants to utilize the diving public to help it protect the sanctuary's eco-system.
TGCC emphasizes the need for effective protection and law enforcement for all banks. When you highlight and raise the visibility of marine areas by making them part of a National Marine Sanctuary, you are painting a target on them. Without a reputation of diligent protection you set them up to be plundered and/or damaged. The problem is not the current users, it's not all the new users, it's those few new ones who didn't know what was available and want to catch up for lost time. In short - additions to the national sanctuary system (NMS) should not occur until the NMS is able and willing to provide the proper level of protection.
Proposed rules on "Rays and Whale Sharks"
TGCC has been advised that several items are past the DMP stage and are now being proposed as rules, specifically the proposed rules on "Rays and Whale Sharks". TGCC feels that this is a "feel good" piece of regulation that is over generalized, specific about the wrong things, and trying to fix a problem that is not of any significance at the FGBNMS. TGCC is especially concerned about the following items.
The proposed rules should address "Manta Rays and Whale Sharks".
Of the "20 species of sharks and rays …documented at the Flower Garden and Stetson Banks" only the Manta ray and Whale Shark are addressed and continually referred to in the Proposed Rules.
922.121 Definitions - "Disturb or disturbing a ray or whale shark"
TGCC believes there are problems with generalizing to all rays. If these rules become final they should address only Manta and Mobula rays. Different types of rays act differently and generalizing a Manta Rays behavior to a stingray is not appropriate.
The definitions and terms such as "attracting" and "disturbing" are too vague and subjective.
TGCC does not support the discussion and definition of "touching" or "disturbing". TGCC does not support some of the information as provided in the Federal Register, section II.D (Killing, Injuring, Attracting, Touching or Disturbing a Ray or Whale Shark). Many of the definitions are too vague and subjective. For example, the word "pursue" is vague since swimming towards, swimming along with, trying to get closer, swimming parallel, and entering the water to begin your dive are all actions that can be viewed as pursuing.
The "conduct any other activity that disrupts or has the potential to disrupt any ray or whale shark in the Sanctuary" also presents problems to divers, boaters and regulatory authorities. Activities such as a vessel entering the sanctuary, divers getting up in the morning, or divers entering the water have the potential to create a chain of events that ultimately disrupt some ray or whale shark. Trying to guess what diver or animal initiated action is going signal the end of a Manta or Whale Shark interaction should not be put on the shoulders of diver or boater.
The rules do not address the fact that these creatures initiate most interaction.
What is missing from section II.D are three important facts - that (1) Manta Rays and Whale Sharks are very intelligent animals (fish) who make their own decisions; that (2) these animals are the initiators of any interaction between themselves, divers and/or boaters; and that (3) they learn from their experiences and that affects their future behavior.
The following are observations pertaining to these creatures' intelligence, decision making and personal desire for human interaction. Whale sharks have been observed rubbing against vessels and oil & gas platforms. Mantas have been observed to swim in from areas of the banks that are deeper than scuba diving limits and wait for divers to enter the water. Often what is observed is that once divers are in the water, one or two Mantas will stop what they are doing, and swim in among the divers. These creatures are seen by divers and boaters only when they want to be seen. For a diver on scuba, the Manta or Whale Shark must initiate the contact or interaction. No diver on scuba has ever "sneaked up" on these fish. And when they want to leave, they depart with such grace and speed that they leave any diver in the dust.
Section II.D states that "the intent is to prevent human interaction with rays and whale sharks in such a manner that the animals change direction, dive away from human interaction, shudder, or have any other adverse behavioral or physical reaction". TGCC believes that these are part of the animal's communication. They are the last parts of an interaction and are normal behaviors. Calling them adverse behavioral or physical reactions is not appropriate. Even a sanctuary vessel pulling up to a mooring buoy, or putting divers in the water, probably causes a ray somewhere to change direction, or a Manta Ray to stop its behavior and fly in to see what's up.
TGCC believes that most divers go out to the FGBNMS hoping to have a wildlife experience. They expect to be right in there among an abundance of marine life. In descending order the highlight of their trip is to interact with a Whale Shark, Manta Ray, see large fish or schools of fish and dive on a healthy coral reef. In pursuit of their dreams they are in violation of these proposed regulations the minute the boat enters the sanctuary boundary.
The rules do not provide instructions and procedures for how to handle contact or disengage from an interaction when it is no longer appropriate.
Because most of diver / vessel contact with these animals is creature initiated, TGCC recommends that these rules contain instructions for a preferred method of handling them. Regulation infraction should be for not handling the situation properly instead of as proposed where the violation for "touching or disturbing" is based upon these creatures' normal communication display. Examples of the user instruction approach are: " Diver and Manta Ray or Whale Shark - Diver experiencing physical contact must refrain from rubbing the animal and immediately back away five feet from the animal. If the animal approaches again, the diver is to back off and leave the immediate area. " Vessel at mooring - If a Whale Shark or Manta Ray is close or in contact with the vessel, the vessel should remain moored and the props stopped. Vessel should not leave the mooring until the animals have departed. " Vessel underway in the Sanctuary - Whale Sharks and Manta Rays should not be followed by a vessel in the sanctuary. If traversing the sanctuary, continue in a manner that does not bring you closer to the creatures. If you are planning to stay, proceed to a mooring and moor only when the animal (s) is a safe distance away. " Oil & Gas Platforms in the sanctuary - No action is to be taken if a whale shark or manta ray rubs, swims through or swims close to the platform structure. " Vessel attached to an oil & gas platform - If a Whale Shark or Manta Ray is close or in contact with the vessel, vessel should remain moored and props running as necessary to control the vessel. Vessel should not leave the mooring until the animals have departed.
The proposed rules, if interpreted to the letter of the law, might force dive vessels to go out of business.
Section III. Classification, E. Regulatory Flexibility Act, paragraphs on "Regulation to protect rays and whale sharks. - This section discusses the economic impact on businesses currently operating vessels that go to the FGBNMS. Clarity is especially important because in addition to being the basic bible of Law Enforcement, under the "Visitor Registration System" and user reporting system all visitors are expected to report any incident that they feel violates these rules. Interpreting of these rules as written would result in the NOAA divers and sanctuary researchers racking up the most violations. The severe penalties for violations coupled with the vague definitions and lack of specific procedures make it impossible to remain in compliance with any degree of certainty. Businesses cannot operate in a climate of fear and uncertainty.
The use of science from the Cayman Islands to draft rules is a cause of concern because the interactions of divers and boaters in both locations are completely different.
Some explanation about why the Cayman Islands are different from the FGBNMS is necessary. In the Cayman Islands they have:
- Had fishermen throwing fish scraps overboard into the shallows while cleaning their catch for almost 100 years.
- Had 30+ years of their dive masters hand feeding stingrays (since the 1980), maybe even before.
- Have large groups of divers, snorkelers, even waders out interacting with and often feeding these animals. There are even published instructions for feeding stingrays by hand.
- Have cruise line traffic to add more people to the mix.
- Emphasize maximizing your experience by feeding them and making physical contact.
- Frankly, the touching you get from these rays is more like a full body massage.
- They're massive, long term feeding has affected the marine ecosystem as a whole, not just the rays. Fish populations have adjusted to the abundant food source and fish behavior for a number of species has changed.
- Cayman Islands probably have more people in the water in one day than the FGBNMS does in one year.
In summary, with respect to the "Rays and Whale Shark" proposed rules TGCC recommends that if finalized, the "Rays" becomes "Manta and Mobula rays". That interaction between these fish, divers and boaters remain acceptable until one of them has communicated its intent to end the interaction. That appropriate methods for disengaging or removing one's self from contact be specified and that definitions be developed to more accurately describe what is "pursuing" or "disturbing". The actions of these intelligent creatures must also be explained and taken into account.
It's difficult to visualize how these "Rays and Whale Shark" regulations will be implemented and interpreted, but if they live up to their wording - TGCC will have to advise it's members to dive elsewhere.
Thank you for the opportunity to submit comments and improve the DMP and proposed regulations.
Todd Hasken
President - Texas Gulf Coast Council of Diving Clubs