Final review of proposed dolphin swimming ban continues

  • This undated photo provided by NOAA Fisheries shows Spinner dolphins in Hawaii. (NOAA Fisheries via AP)
  • This Aug. 15, 2012, photo provided by Murdoch University dolphin researcher Julian Tyne shows people swimming near dolphins in Makako Bay in Kailua-Kona. Picture taken under NOAA permit GA LOC15409. (Julian Tyne via AP)

KAILUA-KONA — Federal officials are still working to finalize a rule three years in the making that’ll render it illegal to approach or swim with Hawaiian spinner dolphins in Hawaii.

“We’re hoping to finish it soon,” said Ann Garrett, assistant regional administrator for the NOAA National Marine Fisheries Service Pacific Islands Regional Office Protected Resources Division in Honolulu. “I don’t have a deadline to tell you or a date that I can say, but I would hope that you will see something within the next six to nine months.”


If implemented, the rule would create a 50-yard barrier around Hawaiian spinner dolphins, or naia, for swimmers, vessels (including stand-up paddleboards), and objects (such as drones) within 2 nautical miles of the shore. That means being within 1/2 of a football field of a Hawaiian spinner dolphin, by any means, including swimming or intercepting by boat, the mammal’s path, would be outlawed — statewide.

“The issue here particularly on the Big Island, but also on Oahu and to a lesser-degree on some of the other islands, is that repeated interactions with some of these animals with humans can actually change their behavior, and changing their ecology can be problematic,” Garrett said. “Potentially, it can even decrease their chances of survival.”

The under-review regulation, which would ban a practice that has created a booming tourism industry in West Hawaii and around the state, was proposed in August 2016 by NOAA following about a decade of discussion. The final rule will go into effect 30 days after publishing it and a final EIS in the Federal Register, unless otherwise noted.

“We hope and we expect when this rule is finalized to come out and do a huge campaign to educate people about it and what it means for their business. We’ve seen firsthand through our Dolphin SMART program that they can have viable businesses offering solid ecotourism-type tours,” said Garrett, “and people can have enjoyable experiences without being that close and without those sort of aggressive behaviors on those dolphins.”

Garrett provided the update among other information during a presentation Tuesday evening at the Kailua-Kona Public Library on Hawaiian spinner dolphins. Joining her was the division’s wildlife management coordinator, Adam Kurtz.

Enforcement of the rule, if implemented, will fall to the state Department of Land and Natural Resources Division of Conservation and Resources Enforcement and the law enforcement arm of NOAA, Garrett said.

Attendees such as former Kona Councilman Keola Childs questioned whether the agencies will have enough people, much less the time to spend in West Hawaii.

“I’m just doubting this will actually work,” he said. “DOCARE has very few people. And I’m sure your agency has even fewer and they’re not going to be sitting around in Kailua. So, how can we make it work?”

Garrett said both agencies have been expanding ranks, and noted the importance of education and outreach as well. Further, the public will play a vital role.

“We have been growing social media awareness so people are taking pictures and sending them to us and we are using those as tools to prosecute,” Garrett said. “We have prosecuted a few of these guys because we can see that behavior and what they are doing.”

To report harassment or marine mammal emergencies, call (888) 256-9840. Photos can also be emailed to Kurtz at

Currently, NOAA recommends as a guideline to stay at least 50 yards from Hawaiian spinner dolphins, which are protected by the federal Marine Mammal Protection Act. That figure is only a recommendation and not law, though it is currently illegal to harass dolphins. The proposed rule will help clarify what harassment means.

According to the National Marine Fisheries Service Pacific Islands Fisheries Science Center, an estimated 630 to 670 Hawaiian spinner dolphins, Stenella longirostris, reside in waters around the Hawaiian Islands. They’re frequently seen close to shore and are known for their tri-colored pattern, relatively small size at 5-6 feet and ability to spin while leaping in the air.

The NOAA proposal for spinner dolphins is based on studies that found increased human activity in dolphin resting habitats disrupts resting behavior and may be contributing to displacement of dolphins. Hawaiian spinner dolphins are nocturnal, hunting at night and coming into shallow, near-shore waters to rest during the day.

“When you see them out in the bays that are closer to shore here (in Kona), they are actually trying to do these really important behaviors that help them survive,” said Kurtz. “Because we see them coming in every single day close to shore, and because they usually are coming to the same bays every day, they are very, very accessible to wildlife tour operators and also other recreational wildlife viewers.”

According to Kurtz, in 2006 there were just six operators offering dolphin-directed activities across the state. By 2015, that number had increased to over 70.

In explaining the rule’s necessity, the wildlife management coordinator pointed to a 2018 study by doctoral student Julian Tyne that assessed the impact human exposure has on spinner dolphins off the Big Island’s leeward coast. According to Kurtz, it is the highest rate of human exposure on a wild dolphin population in the world.

“What he (Tyne) found is that spinner dolphins in some of the resting bays here on the Kona Coast were exposed to human activity within 100 meters 83% of the time when they are in these resting bays, with only about 10 minutes of reprieve in between these interactions,” Kurtz said. “Imagine your sleeping at night, and out of the eight hours your getting sleep, about six of those hours someone’s coming into your room and potentially disrupting your rest.”

Bob Flatt, of South Kona, took issue with Tyne’s findings and NOAA’s reference to them for the proposal during the meeting, noting specifically that Tyne’s study said that despite the high levels of interaction, no affect on dolphin resting behavior was observed.

“The result still stands until you do more experiments to show otherwise,” he said. “You need to do more experiments to find that out. Until you do those more experiments, the conclusions the same — there’s no (effect).”


Kurtz pointed out, however, that Tyne’s study was unable to define a baseline to show actual changes in behavior.

“That’s just one study in many that we looked at. We recognize, as an agency, that the science there is imperfect and it usually is imperfect. If we wait to act until there’s perfect information, it will likely be too late,” said Garrett. “I appreciate what you’re saying. There is a lot of uncertainty around spinner dolphins, but when we created this proposed rule it was assembled using all the literature that was available.”

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