A National Oceanic and Atmospheric Administration official has told the state that the federal government cannot place observers on Hawaii Superferry to monitor endangered humpback whales anytime soon, undermining a key operating condition recommended by state lawmakers.

Chris Yates, of the NOAA Fisheries' Pacific Islands Regional Office, said observers might be an option if Superferry obtains an incidental-take permit for whales under the federal Endangered Species Act, a process that could take a year or longer.

Lawmakers have required Superferry executives to apply for the permit as a condition of a bill that allows ferry service to resume while the state prepares an environmental impact statement for the project.

But lawmakers, as an interim safeguard, also asked Superferry executives to request that NOAA observers accompany the ferry when it travels through waters of the Hawaiian Islands Humpback Whale National Marine Sanctuary.

In an e-mail Tuesday to Jeffrey Walters, the state's co-manager of the whale sanctuary, and in an interview Thursday with The Advertiser, Yates made it clear that NOAA observers are not immediately available. He said Superferry could hire independent observers or the state could pay for observers to watch for whale incidents.

"I also want to make clear that we have been very straightforward with everyone who has asked about this process," Yates wrote in his e-mail to Walters. "I fear that the bill as written will raise the expectations of the public and media that these requirements will actually result in some action, which they will not.

"I will need to explain to them that everyone we spoke with knew in advance that these measures were not feasible."

Gov. Linda Lingle and her Cabinet officials have been working out operating conditions for the ferry, which she hopes to announce when she signs the bill into law this week.

Lawmakers authorized Lingle to impose conditions to protect whales, prevent the spread of invasive species and protect cultural and natural resources. The governor was urged in the bill to consider placing state agricultural inspectors and conservation enforcement officers on ferry voyages.

Lawmakers also gave the governor discretion to modify their conditions — such as the request for NOAA observers — so they are reasonable and efficient.

Walters said he could not discuss what he has recommended to the governor. But he said whale sanctuary officials are available to assist with training or other guidance for independent observers. "It's definitely a possibility," he said.

State Sen. Ron Menor, D-17th (Mililani, Waipi'o), who added the request for NOAA observers as a condition of the bill, said he hopes the governor or Superferry can provide independent observers. He said it was his understanding when drafting the bill that NOAA was open to deploying observers at some point.

"The intent is to have someone on board who is qualified and has expertise to monitor whale strikes," Menor said.

OTHER PRECAUTIONS

Superferry has volunteered to assign lookouts on the Alakai to help the bridge crew spot whales as part of a whale-avoidance policy that has been praised by Walters and others as more extensive than that of other large vessels in Hawai'i.

Superferry also designed routes that can take the high-speed catamaran outside the whale sanctuary and avoid the shallow waters of 100 fathoms or less where many whales congregate. Superferry has committed to slowing its planned 35-knot travel speed to 25 knots when inside the sanctuary.

But environmental groups have asked that the ferry slow to 13 knots in shallow waters as a precaution against injuring some of the estimated 10,000 humpback whales that visit and calve in Hawai'i waters during the winter whale season.

Jeff Mikulina, director of the Sierra Club's Hawai'i chapter, said NOAA observers on the ferry would be ideal, but that if that's not possible he would like other independent observers on board. He also thinks that ferry passengers, in the digital age of cell-phone cameras and camcorders, will help make sure any whale encounters are reported.

"I think there is going to be some de facto enforcement by passengers," Mikulina said.

WHALE COLLISION ISSUES

A NOAA Fisheries review found 292 reports of ships striking whales between 1975 and 2002, including 20 in the waters off Hawai'i and Alaska. Forty-four of the reports involved humpback whales — second highest behind finback whales, at 75. Fewer than half of the reports included descriptions of the vessels involved.

But among the reports with vessel descriptions, Navy ships had the highest number of whale strikes (23), followed by cargo ships (20), whale-watching boats (19), cruise ships (17), ferries (16), Coast Guard ships (9), tankers (8), recreational vessels (7), steamships (7) and fishing boats (4).

The review cautioned, however, that the count might have represented only a fraction of whale strikes because many go either unnoticed or unreported.

NOAA Fisheries' Pacific office has reported a handful of collisions between whales and vessels in each of the past several whale seasons. The collisions could be a reflection of the growing number of humpback whales as the species recovers, as well as greater vigilance in reporting whale strikes.

NOAA raised the possibility of whale strikes by the ferry as an issue with the federal Maritime Administration in October 2005. The Maritime Administration, which had already approved $140 million in federal loan guarantees for the construction of two ferries for the interisland service, responded in February 2006 that no consultation with NOAA on the Superferry project was required.

NOAA Fisheries talked with the ferry company in February 2006 about possibly applying for an incidental-take permit, which Superferry executives said they would consider.

Yates said no other vessel in Hawai'i has such a permit and that he is not aware of ferries or ships in other locations that have sought one for endangered whales. "This is not only a Superferry issue, this is an issue for all ocean-going vessels," he said.

Incidental-take permits, available through NOAA and the U.S. Fish and Wildlife Service, cover unintentional harm to or death of endangered species during lawful activities.

Habitat conservation plans are required as part of the permits to help offset the threat to endangered species and other wildlife, in return for liability protection.

Incidental-take options are also offered through the federal Marine Mammal Protection Act, and have been used, for example, by barge operations in the Beaufort Sea off Alaska and seismic research ships in the Gulf of Mexico.

NOAA Fisheries also places observers on commercial fishing boats to monitor protection of endangered or threatened sea turtles. In Hawai'i, NOAA uses observers on some longline and bottomfishing boats.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.