On Nov. 16, an Alaska Superior Court Judge ruled to reinstate the regulation prohibiting personal watercraft use in the two overlapping critical habitat areas of Kachemak Bay and the Fox River Flats. Plaintiffs in the case, Cook Inletkeeper, Kachemak Bay Conservation Society, Friends of Kachemak Bay State Park and Alaska Quiet Rights, initiated the case in May 2021.
The Alaska State Legislature established the Fox River Flats critical habitat area in 1972 and the Kachemak Bay critical habit area was established two years later in 1974.
The intention of the establishment of critical habitat areas was to protect regions of state natural habitat that are crucial to fish and wildlife species and to restrict other uses not compatible with that purpose. There are 17 regions in the state identified as critical habitat areas and include both marine and land habitat areas, several others are located in the Cook Inlet region.
According to the court documents for the case, in 1999 the Alaska Department of Fish and Game began to consider possible regulatory actions regarding the use of personal watercraft in Kachemak Bay and the Fox River Flats. The literature review and assessment from that study led to the regulation prohibiting personal watercrafts and went into effect in May 2001.
The proposed repeal of that regulation was initiated with a public notice in December 2019 and public comments were collected by ADF&G until January 2020. There are over 168 pages of comments available in the ADF&G archives of the case that were collected from residents across the state of Alaska, though many of them are local residents of Homer. There is also commentary provided from residents of other states.
In an Anchorage Daily News article from March 2020, it was noted that “those wanting the ban to remain submitted 1,005 comments. Over 1,600 commenters asked for the bay to be opened up to personal watercraft, often called jet skis.”
Several of the comments from local residents in favor of lifting the ban were directed toward the Homer City Council’s public opposition. One comment, for example, states “as a community member that lives outside of Homer city limits, I urge you to remember that the city of Homer does not own Kachemak Bay… please do not allow the city of Homer to regulate watercraft use.” Other comments were similarly directed toward the council.
There were many other public events held in Homer where oral testimony was collected from both the Homer City Council and through the Kachemak Bay State Parks citizen advisory board.
According to Homer News articles published at the time of the meetings, there was particular concern over the fact that Kachemak Bay State Park would still require a restriction on the use of personal watercraft and how that would be enforced due to a single ranger in the park.
The court documents state the explanation for defendant ADF&G Commissioner Douglas Vincent-Lang’s decision to repeal the ban by quoting his conclusion, “the ban on personal watercraft is an overburdensome regulation not supported by any scientific studies that have documented impacts to Kachemak Bay or similar environments … Because of the lack of scientific data specific to PWCs in similar environments, evolution of emissions and noise reduction and the advancements of other watercraft blurring the lines of a PWC, there appears to be no difference between the use of a PWC and other watercraft regarding the potential impacts to habitat within these specific areas. Therefore, repeal of the prohibition of PWC is justified.”
The repeal went into effect in January 2021.
One source showing substantial scientific data regarding impacts of personal watercraft is available through Homer’s Cook Inletkeeper website. The “2017 Literature Review of Impacts of Personal Watercraft” is an annotated bibliography of approximately 165 citations from various academic journals, institutions and agencies such as the National Marine Fisheries Service.
Robert Archibald with the Kachemak Bay Conservation Society and the Kachemak Bay Water Trail met with the Homer News and agreed that personal watercraft emissions and noise reduction has evolved over time. “But I don’t think the basic concept of the machine has changed that much. They’re highly maneuverable and they can get into shallow waters and create a lot of damage to the critical habitat there.
“There were people who could get up in the Fox River Flats and that area deserves to be protected, especially the fowl.”
Archibald also noted that on Nov. 15, the day before the court conclusions, the Alaska Department of Natural Resources published a public notice requesting public feedback and comments on the use of personal watercraft within Alaska State Parks.
The notice states, “DNR is considering revising regulations in order to provide outdoor recreation opportunities, enhance public safety, provide public clarity, and update existing regulations to define personal watercraft (PWCs), which waters are open to PWCs, how PWC areas are posted, and management of potential seasonal closures.”
“I think the court ruling for personal watercrafts in Kachemak Bay is going to make a big difference in how they move forward with their scoping for this consideration,” Archibald said.
There is a 30-day comment period available to provide feedback to the Department of Natural Resources here and the notice can be found at http://notice.alaska.gov/213231.