The problem with dolphins is that they are not whales.  Because they aren’t and never have been considered endangered, they lack protections that other cetaceans enjoy through the Marine Mammal Protection Act.  Until recently the only human threat to wild dolphins was their unintentional capture in tuna nets and their kidnapping for captive dolphin swim and clandestine defense programs.  But the current euphoria over swimming with wild dolphins in once-isolated Hawaiian bays appears to reflect a worldwide surge in frolic with dolphin “eco-tours.”

Four years ago an isolated bay on Oahu had six dolphin watching tours; last year the same bay hosted fifteen tour boat companies that were each carting groups of about 20 snorkelers to dump into the midst of a single spinner dolphin pod.   Add about 15 kayaks from another tour company and a napping bay for dolphins turns into a Friday night frat party – with about the same amount of decorum.

When a dolphin is spotted, boats converge, trying to intercept moving pods or drop their guests into the midst of stationary pods.  There are reports of a tour company off the Big Island that employs kayakers to herd dolphins toward customers.  As boatloads of tourists move in, it appears that dolphins and other sea life move out. Fishermen report that their catches have dropped dramatically, putting their livelihood in jeopardy, even as they dodge “eco-tour” boats.

The reason tour companies can offer dolphin swim programs is because dolphins are predictable.  Each night they swim hundreds of miles to forage for squid and small fish, then return at daybreak to a handful of shallow, sandy-bottomed bays and inlets around the Islands to sleep and reenergize – safe bays that allow dolphins to keep an eye out for marauding sharks.

It is the “absurdity of programs” as well as the increasing volume and intrusiveness of the swimmers that disturbs Peter T. Young, Director for Hawai’i’s Department of Land and Natural Resources.  Programs advertise spiritual communion, healing, and other touchy feeling interspecies exchanges, as well as the lure of interspecies bonding. The most outrageous was a request to start a birthing service with dolphins.  “Not only is that a safety hazard to humans, it has an obvious impact on the dolphins.”  Sharks and dolphins commonly occupy the same waters and those unscripted, and blessedly infrequent, interactions have also been documented.  Last year, “as people were in a boat looking down,” says Young, “a shark came up through middle of a pod with one of the baby dolphins in it mouth.”

The problem is that no single agency has jurisdiction to implement specific programs, although, Young says that the state has been told in “no uncertain terms” that cetacean protection is a federal issue.  National Oceanic and Atmospheric Administration (NOAA) Fisheries is in charge of coastal waters and cetacean viewing guidelines and on June 16, 2005 NOAA resubmitted the Marine Mammal Protection Act to Congress for reauthorization, along with recommendations for changes to key provisions strengthening enforcement and clarifying “harassment.”  Although scheduled for review every five years, it was last amended in 1994, well before swim with dolphin programs were really an issue.  Connie Barclay, NOAA Fishery agreed that at the last annual meeting of the Marine Mammal Commission “the topic of spinner dolphins was big.”  In mid-May at the NOAA Fisheries meeting of this year in Houston, Young again sought help from individuals within the federal agencies.  We are trying to get all of the different agencies together, said Young.

• In the meantime, the State of Hawaii passed a bill placing a moratorium on new launching and landing permits to specific bays where dolphins and other marine wildlife have been steadily pushed out by excessive human interaction.  The moratorium will remain in place until an environmental impact study authorized in the same bill is completed (projected date 2007).
• The State is also amending current permit language to replace existing permits as they expire compelling eco-tours, surfers, drifters, tour boats (and others) to keep the recommended 50 yards away from dolphin pods in bays and to swim away from wildlife or risk losing their permits.

In the cliffs below Kealakekua Bay, where dolphins typically rest, the state implemented a no swim, no vessel area.  “I discussed it with NOAA,” he says, “before we moved forward. Our interest is in resting areas. We are listening to biologists and doing what we can to encourage people to avoid specific activities and to help policy makers make decisions.”  Ideally, Young would like to see the MMPA amended to provide greater clarity on harassment and to allow state and federal agencies to have joint enforcement powers over violators. “Right now there is a 50-yard guideline for spinner dolphins, but that is a guideline, not a specific rule.  We’d like to impose a condition that if a dolphin approaches you in their resting area, you will retreat unless it puts you or the dolphin in danger,” says Young.

“Clearly,” agrees Barclay, “the distinction between ‘viewing’ vs. ‘interacting’ with wild marine mammals needs to be made clear to the public.”

by Lynn Goya