Cruise-boat operators and others who make their livelihoods on the Tumon Bay will be at the mercy of a three-man permitting board under new regulations that are in draft form.
A similar situation would apply to all other marine preserves in Guam.
Public Law 27-87 authored by Sen. Joanne M.S. Brown and signed into law on May 6 is known as the Marine Preserves Eco-permitting Act.
Brown told the Journal that the law was put in place to strengthen the current permitting procedure that begins with an application for a Seashore Clearance Permit given by the Guam Land Use Commission. Now final approval rests with the director of the Department of Agriculture who has the sole authority to determine what activities will or will not be allowed in the preserves.
Brown said there was ambiguity in the preserve protection law and the act closes a loop-hole that allowed non-fishing activities such as an aviation demonstration to occur. She said the added layer of protection is needed to guard against activities that may be deemed harmful to marine life.
“I have no problem with activities that are compatible with protecting the preserves but if there is any activity that is not compatible and cannot be worked out then it simply won’t happen ” she said. “The use of the [preserve] resources has to go hand in hand with public policy and some people may say that is discriminatory. Well these are public resources and they are not privately owned.”
But activities such as the Sunset Dinner Cruise that were seemingly harmless and operated for five years following the implementation of the preserve protection policy are now threatened.
The marine preserves are areas in which certain activities — such as fishing — are restricted to protect coral reef habitats and aquatic animals such as fish. On May 16 1997 Public Law 24-21 was implemented creating five marine preserves and making changes to Guam’s fishing regulations. The preserves are the Pati Point Preserve at the northern tip of Guam the Tumon Bay Preserve the Piti Bomb Hole Preserve the Sasa Bay Preserve and the Achang Reef Flat Preserve at the southern tip of Guam.
The rules and regulations are now in a draft form. They state — as part of the administrative adjudication process —that decisions regarding proposed activities in the preserves will be by a majority decision of a three-member permitting board.
The director of the Department of Agriculture the chief of the Division of Aquatic and Wildlife Resources and the supervisor of the fisheries section of the division comprise the permitting board.
Bruce E. Kloppenberg president of Kloppenberg Enterprises Inc. which does business as Turtle Tours is a member of the board of directors of the Guam Chamber of Commerce. He said the law is flawed because there are no checks and balances in the permitting process.
“There are no provisions for an appeals process. One person has full power [the director of the Department of Agriculture]. Although there is a permitting board provided for those members are all subordinates who work for the director. What equality is there in that?” he said.
Kloppenberg represented the chamber at a July 7 meeting at the Tamuning mayor’s office. It was held to gather input from the public on the set of rules and regulations drafted by the Department of Agriculture’s Division of Aquatics and Wildlife Resources.
The law states “the Director of Agriculture shall through the permitting system make a determination of whether existing activities within marine preserves shall continue or be discontinued or future activities be permitted.
That statement has worried Gregg C. Kosanke president of Coral Reef Water Inc. which does business as Sunset Dinner Cruise.
He did not want to say how much he had invested so far in the design of a new boat to replace the 149-passenger Flying Proa that plied Tumon Bay waters for 15 years until its destruction by Supertyphoon Pongsona on Dec. 8 2002 but it was a substantial amount of a $1 million project.
Kosanke has put construction plans on hold. “We have a huge investment in this thing. We know the business and how to operate it. It was very popular with the tourists and yet very benign on the environment.”
Kosanke said the impetus for the new law was the Birdman Rally sponsored by the Guam International Airport on May 17 to 19 2002. Environmental activists concerned over the use of the bay faced off against the airport and local businesses.
“The Birdman Rally was an example of government gone awry. I think the appropriate safeguards were in place but the executive office was able to force through what they wanted without the proper processes and now we have an additional level of government to deal with ” he said.
Kosanke said that he was able to operate the dinner cruise even though preserve overlay had been implemented. “We went through the entire permitting process at great expense in both time and money including approvals from the Army Corps of Engineers the full umbrella of the Territorial Land Use Commission. You name it we did it. Now I’m worried this will be shot down so we have stopped spending money to replace the boat until this all filters through.”
Still in a draft stage the rules and regulations call for an in-depth project plan complete with maps and drawings. A review standard for activities is envisioned and a penalty schedule similar to those given for current fishing violations is outlined.
The Journal requested an interview with Department of Agriculture officials. It was told they were in the process of making decisions on revised rules following input they had already received. They said an article on the issue was premature.
Paul S. Bassler director of the Department of Agriculture did provide a statement. It said “Officials at the Department of Agriculture are currently developing rules and regulations. A number of stakeholder meetings to gather input have occurred and after finalizing the draft rules and regulations a public hearing in accordance with the administrative adjudication process will be announced.”
He said input was being carefully considered. “But decisions will ultimately be based on the need to restore coral reef fish stocks and protect coral reef habitat as intended by the previous law.”
Kloppenberg was pessimistic about Kosanke’s attempt to revive the dinner cruise. “I don’t think its going to happen — not now. There is too much government and that tends to mess a good thing up. It’s just a shame that it seems like we are legislating against anyone ever seeing the beauty that it is.” MBJ