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I. Background
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
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3510-08-M
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15 CFR Chapter IX,
Subchapters A and B and Part 944
[Docket No.
900122-2020] RIN 0648-AC63
Monterey Bay National
Marine Sanctuary Regulations
AGENCY:
Office of Ocean and Coastal Resource Management (OCRM), National
Ocean Service (NOS), National Oceanic and Atmospheric Administration
(NOAA), Commerce.
ACTION:
Final Rule; National Marine Sanctuary Designation; and Summary
of Final Management Plan.
SUMMARY:
The National Oceanic and Atmospheric Administration (NOAA), by
the Designation Document contained in this document, and as required
by Section 205(a)(3) of Pub. L. 100-627, designates an approximately
4,024 square nautical mile area of coastal and ocean waters, and
the submerged lands thereunder, in and surrounding Monterey Bay
off the coast of central California as the Monterey Bay National
Marine Sanctuary. This document publishes the Designation Document
for the Sanctuary and summarizes the final management plan for
it. The final management plan details the goals and objectives,
management responsibilities, research activities, interpretive
and educational programs, and enforcement, including surveillance,
activities for the Sanctuary.
Further, NOAA, by this notice, issues final regulations to implement
the designation by regulating activities affecting the Sanctuary
consistent with the provisions of the Designation Docu- ment.
The intended effect of these regulations is to protect the conservation,
recreational, ecological, historical, research, educational and
esthetic resources and qualities of the Monterey Bay National
Marine Sanctuary.
EFFECTIVE DATE:
Pursuant to Section 304(b) of the Marine Protection, Research,
and Sanctuaries Act, Congress and the Governor of the State of
California have forty-five days of continuous session of Congress
beginning on the day on which this document is published to review
the designation and regulations before they take effect. After
forty-five days, the designation (and any of its terms not disapproved
by Congress through enactment of a joint resolution) and regulations
automatically become final and take effect. Further, if the Governor
of the State of California certifies within the forty-five-day
period to the Secretary of Commerce that the designation or any
of its terms is unacceptable, the designation or the unacceptable
terms cannot take effect in the area of the Sanctuary lying within
the seaward boundary of the State. If the Secretary considers
that any disapproval will affect the designation in a manner that
the goals and objectives of the Sanctuary cannot be fulfilled,
the Secretary may withdraw the entire designation. A document
announcing the effective date will be published in the Federal
Register.
ADDRESSES:
Copies of the Final Environmental Impact Statement/ Management
Plan (FEIS/MP) prepared for the designation are available upon
request to the Sanctuaries and Reserves Division, Office of Ocean
and Coastal Resource Management, National Ocean Service, National
Oceanic and Atmospheric Administration, 1825 Connecticut Avenue,
N.W., Suite 714, Washington, D.C. 20235.
FOR FURTHER INFORMATION CONTACT: Mark Murray-Brown, 202/606-
4126.
SUPPLEMENTARY INFORMATION:
I. Background
Title III of the Marine Protection, Research, and Sanctuaries
Act, as amended (the "Act" or "MPRSA"), 16 U.S.C. 1431 et seq.,
authorizes the Secretary of Commerce to designate discrete areas
of the marine environment as national marine sanctuaries if, as
required by Section 303 of the Act (16 U.S.C. 1433), the Secretary
finds, in consultation with Congress, a variety of specified officials,
and other interested persons, that the designation will fulfill
the purposes and policies of the Act (set forth in Section 301(b)
(16 U.S.C. 1431(b))) and: (1) the area proposed for designation
is of special national significance due to its resource or human-use
values; (2) existing state and Federal authorities are inadequate
to ensure coordinated and comprehensive conservation and management
of the area, including resource protection, scientific research
and public education; (3) designation of the area as a national
marine sanctuary will facilitate the coordinated and comprehensive
conservation and management of the area; and (4) the area is of
a size and nature that will permit comprehensive and coordinated
conservation and management. Before the Secretary may designate
an area as a national marine sanctuary, Section 303 (16 U.S.C.
1433) requires him or her to make the above described findings
and Section 304 (16 U.S.C. 1434), setting forth the procedures
for designation, requires him or her to publish in the Federal
Register regulations implementing the designation and to advise
the public of the availability of the FEIS/MP. The authority of
the Secretary to designate national marine sanctuaries and administer
the other provisions of the Act has been delegated to the Under
Secretary of Commerce for Oceans and Atmosphere by DOC Organization
Order 10-15, section 3.01(z), January 11, 1988. The authority
to administer the other provisions of the Act has been redelegated
to the Assistant Administrator for Ocean Services and Coastal
Zone Management of NOAA by NOAA Circular 83-38, Directive 05-50,
September 21, 1983, as amended.
The State of California nominated the Monterey Bay area in 1977,
along with nine other offshore marine areas, for consideration
for designation as national marine sanctuaries. In response to
these nominations, NOAA selected the Channel Islands, the Point
Reyes-Farallon Islands, and the Monterey Bay areas for further
consideration. In December 1978, NOAA released an issue paper
on these three sites, presenting several boundary and regulatory
options for each site. Public hearings were held and, based on
the responses, NOAA, on August 10, 1979, declared all three sites
as active candidates for designation as national marine sanctuaries.
On September 21, 1980, the Channel Islands National Marine Sanctuary
was designated and on January 16, 1981, the Point Reyes- Farallon
Islands National Marine Sanctuary (later renamed the Gulf of the
Farallones National Marine Sanctuary) was designated. On December
14, 1983 (see 48 FR 56253), NOAA removed the Monterey Bay area
from the list of active candidates.
On November 7, 1988, Pub. L. No. 100-627, which amends and authorizes
appropriations for Title III of the Act, was signed into law.
Section 205(a)(3) of Pub. L. No. 100-627 directs that the Secretary
of Commerce designate the Monterey Bay National Marine Sanctuary.
On January 6, 1989, NOAA announced (54 FR 448) that the Monterey
Bay area had again become an active candidate for desig- nation
as a national marine sanctuary. On January 25 and 26, 1989, NOAA
sponsored two public scoping meetings in Monterey and Santa Cruz
to solicit public comment on the scope and significance of issues
involved in designating the Sanctuary. The public response was
extremely favorable to proceeding with the evaluation.
On August 3, 1990 NOAA published a proposed Designation Document
and proposed implementing regulations and announced the availability
of the Draft Environmental Impact Statement/Management Plan (DEIS/MP)
(55 FR 31786). Public hearings to receive comments on the proposed
designation, proposed regulations, and DEIS/MP were held on September
12, 1990 in Monterey; on September 13, 1990 in Santa Cruz; and
on September 14, 1990 in Half Moon Bay, California. All comments
received by NOAA in response to the Federal Register notice and
at the public hearings were considered and, where appropriate,
were incorporated. A summary of the significant comments on the
proposed regulations and the regulatory elements of the DEIS/MP
and NOAA's responses to them follow. The comments are both presented
and responded to in greater detail in Appendix F of the FEIS/MP.
(1) |
Comment: NOAA should extend its preferred
Boundary Alternative 2 both north and south and choose Boundary
Alternative 5. Boundary Alternative 5 would protect critical
nesting and migratory paths between Monterey and San Mateo
County coasts, create a continuous protected management regime
between the Gulf of the Farallones National Marine Sanctuary
and the proposed Monterey Bay National Marine Sanctuary, provide
a greater buffer to sensitive areas such as Año Nuevo
and the Fitzgerald Marine Reserve, and protect a greater area
of the southern California sea otter range and habitat. |
Response: NOAA agrees. The FEIS/MP-preferred Boundary
Alternative 5 incorporates a north and south extension of
the DEIS/MP-preferred Boundary Alternative 2. Boundary Alternative
5 received the vast majority of support from the public
during the public comment period. Boundary Alternative 5
has been chosen as preferred because it integrates important
coastal, nearshore and deep-ocean canyon resource zones
under one management regime. These zones include the Monterey
submarine canyon - the focal point of the Sanctuary; Monterey
Bay itself; the Big Sur and San Mateo coastal area, including
Año Nuevo and the Fitzgerald Marine Reserve; the
adjacent continental shelf, slope and rise; certain highly
productive shoreline and intertidal areas, such as Pescadero
Marsh and Elkhorn Slough; and the deep ocean environments
of the Ascension, Monterey Bay, Big Sur and Partington Canyon
complexes.
The boundary expansion excludes a small area of approximately
71 square nautical miles off the north coast of San Mateo
County and the City and County of San Francisco. The excluded
area encompasses the anticipated discharge plume of the
combined sewer overflow component of the City and County
of San Francisco's sewage treatment program, the shipping
channel providing access to and from San Francisco Bay,
and the Golden Gate dredged material disposal site associated
with this channel. NOAA has determined that the nature and
level of these activities are not appropriate for inclusion
within a national marine sanctuary. By excluding this small
area from the Sanctuary, NOAA will be able to focus Sanctuary
management on the long-term protection of other areas that
contain nationally significant resources and qualities and
are less heavily impacted by human activity. By excluding
the anticipated discharge plume of the combined sewer overflow
from the Sanctuary, a buffer zone has been created protecting
Sanctuary resources and qualities from the discharge.
The boundary expansion not only encompasses additional
resources but also will provide enhanced protection from
potential human threats to the north and south. For example,
to the north, off of the San Mateo coast, potential new
dredged material disposal and oil and gas development activities
are under consideration within the Sanctuary boundary. To
the south, the pristine area of the Big Sur coast and sea
otter habitat would be encompassed and protected by the
Sanctuary regime.
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(2) |
Comment: Oil and gas development within
the Sanctuary should either be prohibited or regulated. Concerns
range from impacts of potential toxic wastes released from
oil-drilling platforms, reduced tourism due to diminished
scenic views, lack of adequate emergency oil response capabilities,
to catastrophic blow outs. |
Response: NOAA agrees. The regulations
prohibit exploring for, developing or producing oil or gas
throughout the entire Sanctuary. Such economic development
and construction of man-made structures would severely disrupt
the natural and aesthetic qualities of the area and be inconsistent
with the purposes of the Sanctuary. Although certain man-made
structures may be permissible in the future for limited purposes
such as research or natural resource protection, the threats
from oil and gas activities to Sanctuary resources and qualities
warrant prohibition. Threats include not only catastrophic
events such as oil spills associated with blow-outs, rupture
of pipelines or loading of tankers but also long-term chronic
events such as discharge of drilling fluids, cuttings and
air emissions. Offshore oil and gas activities have never
been conducted in the Monterey Bay area. The area would suffer
aesthetic disturbance ranging from the presence of offshore
rig structures to building of shore facilities and the necessary
transportation of personnel and equipment to and from the
offshore rigs. |
(3) |
Comment: NOAA should either regulate
or prohibit vessel traffic within the Sanctuary area. Specifically:
1) traffic should be prohibited unless vessels are bound for
a destination within the Sanctuary; 2) size of vessels to
be regulated or prohibited from the Sanctuary area should
be clarified; 3) vessels should either be routed offshore
and avoid the Sanctuary area completely, or traffic lanes
should be developed along the Sanctuary edges; and 4) vessels
traveling along the Sanctuary boundary should be limited to
specific port access routes and shipping lanes established
by the United States Coast Guard (USCG) and NOAA. |
Response: The Designation Document lists vessel
operations as being subject to Sanctuary regulation. However,
upon designation only the operation of personal water craft
is being regulated as part of the Sanctuary regime (see
comment responses 18 and 19). There are no Sanctuary regulations
planned at this time for the traffic regulation of other
vessels. NOAA is currently working with the USCG, the primary
source of vessel traffic regulation, to determine the need
for additional measures to ensure protection of Sanctuary
resources and qualities from vessel traffic. These consultations
aim to determine which resources are most at risk, which
vessel traffic practices are most threatening and which
regulations or restrictions would be most appropriate to
alleviate potential threats, including those, if any, from
foreign vessels. Because the disposal of dredged material
outside the Sanctuary (see Comment/Response (9) below) will
necessitate the transport of these materials through the
Sanctuary, NOAA will also work closely with the U.S. Army
Corps of Engineers (COE) and U.S. Environmental Protection
Agency (EPA) on such transport activities.
These ongoing consultations build upon recent Federal and
State legislation (since publication of the DEIS/MP in August
1990) that further protects Sanctuary resources and qualities
from vessel traffic. Specifically, the National Oil Pollution
Act of 1990 establishes double hull requirements for tank
vessels. Most tank vessels over 5,000 gross tons will be
required to have double hulls by 2010, while vessels under
5,000 gross tons will be required to have a double hull
or a double containment system by 2015. All newly constructed
tankers must contain a double hull (or double containment
system if under 5,000 gross tons), while existing vessels
are phased out over a period of years. In addition, SB 2040,
California's Oil Spill Prevention and Response Act, requires
numerous prevention as well as mitigation measures aimed
at protecting marine resources from oil spills particularly
from tankers.
Vessel traffic separation zones off of San Francisco, implemented
by the USCG, also help protect Sanctuary resources and qualities.
If it appears that regulation of vessel traffic as part
of the Sanctuary regime may be necessary, NOAA will make
such determination in consultation with the USCG, COE, EPA,
other affected Federal and State agencies and the International
Maritime Organization (IMO) through the USCG. If it is determined
that such regulation is necessary, NOAA will develop the
necessary regulations, also in coordination with those agencies.
Coordination among agencies is intended to focus ongoing
efforts to provide adequate protection to the Sanctuary
and to emphasize the sensitivity of Sanctuary resources
and qualities.
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(4) |
Comment: If spills cannot be prevented
entirely, a contingency plan should exist for emergency response
and cleanup. To facilitate response action, NOAA should work
with, and build upon, the efforts of other organizations and
agencies already developing plans for the area. |
Response: NOAA agrees and will work with,
and build upon, the efforts of others. The FEIS/MP identifies
existing oil spill contingency plans and efforts in the Monterey
Bay area. The Monterey Bay National Marine Sanctuary requires
its own contingency plan to ensure that resources are protected
during events that threaten the environment. A prototype sanctuary
contingency plan is almost complete, and will be tested at
the Channel Islands National Marine Sanctuary. Once implementation
experience has been gained, the plan will be adapted to other
sanctuary sites, including Monterey Bay. |
(5) |
Comment: Agreements should be established
between various local, regional, State, and Federal agencies
to ensure adequate cleanup response. |
Response: Under the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP), 40
CFR Part 300, the USCG serves as the Federal on-scene coordinator
to organize all containment, removal and disposal efforts,
and resources during a spill event. If a spill occurs, NOAA
will take an active role, to the extent allowable, to participate,
coordinate, and actively protect natural resources. During
the planning phase, NOAA will work with the existing response
mechanism, and will cooperate with local government, industry,
organizations and interested individuals to implement a comprehensive
contingency plan. A top priority for the Sanctuary Manager
will be to meet with those involved with contingency planning
to coordinate Sanctuary roles and responsibilities during
an emergency response situation. |
(6) |
Comment: Depositing or discharging from
any location within the boundary of the Sanctuary or from
beyond the boundary of the Sanctuary should be prohibited.
The regulation of discharges to improve water quality is a
significant concern. |
Response: The regulations prohibit depositing or
discharging most material and other matter from any location
within the boundary of the Sanctuary, and from beyond the
boundary of the Sanctuary if such matter subsequently enters
the Sanctuary and injures resources or qualities.
NOAA has entered into a Memorandum of Agreement (MOA) with
the State of California, EPA and the Association of Monterey
Bay Area Governments regarding the Sanctuary regulations
relating to water quality within State waters within the
Sanctuary. With regard to permits, the MOA encompasses (i)
National Pollutant Discharge Elimination System (NPDES)
permits issued by the State of California under section
13377 of the California Water Code and (ii) Waste Discharge
Requirements issued by the State of California under section
13263 of the California Water Code. The MOA specifies how
the Sanctuary certification process for existing permits
and review process for new or revised (including renewal)
permits will be administered within State waters within
the Sanctuary in coordination with the State permit program.
The MOA also addresses integration and coordination of research
and monitoring efforts and the development of a comprehensive
water quality protection program for the Sanctuary.
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(7) |
Comment: NOAA should clarify in the FEIS/MP
what harbors will be excluded and why. |
Response: The FEIS/MP includes a specific
section on harbors. Pillar Point, Santa Cruz, Moss Landing
(except waters, and submerged lands thereunder, of Elkhorn
Slough east of the U.S. Highway One bridge to the boundary
of the Elkhorn Slough National Estuarine Research Reserve),
and Monterey harbors shoreward from their respective International
Collision at Sea regulation (Colreg.) demarcation lines are
not part of the Sanctuary. NOAA excluded these harbor areas
from the Sanctuary because they do not possess resources and
qualities warranting Sanctuary protection. |
(8) |
Comment: Dredging is essential to maintaining
viable working harbors. However, because of potential degradation
to the environment, dredging should be prohibited within the
Sanctuary. NOAA should clearly state how regulations will
affect current dredging activities in the Sanctuary. |
Response: Most harbor areas do not lie
within the Sanctuary (see Comment/Response (7) above) and
therefore are not affected by the Sanctuary dredging prohibitions.
In addition, existing activities relating to the maintenance
of the harbors have been exempted from Sanctuary regulation.
NOAA will work closely with COE and EPA to ensure that Sanctuary
resources and qualities are protected, while allowing essential
dredging activities to be conducted. |
(9) |
Comment: Ocean dumping is a threat to
the marine environment and should be entirely prohibited within
the Sanctuary area. NOAA should also specify whether Federally
authorized dredged material disposal sites SF-12 and SF-14
will remain available for future dredging projects that would
otherwise qualify for State and Federal permits. |
Response: The Sanctuary regulations prohibit the
designation and use of any new ocean dredged material disposal
sites within the Sanctuary. The ocean disposal of dredged
material is subject to stringent regulation under Title
I of the MPRSA. NOAA will work closely with COE and EPA
to ensure Sanctuary resources and qualities are protected
from future dredged material disposal activities.
With regard to the COE dredged material disposal activities:
(a) Those activities located within the Sanctuary boundary
will continue to be regulated under Section 103 of the MPRSA
and Section 404 of the Clean Water Act. These activities
have previously undergone intense public scrutiny and environmental
oversight by EPA. Any proposed new activities at existing
sites, i.e., activities not pursuant to and in compliance
with an existing permit or approval, will be subject to
the review process of § 944.11.
(b) Those activities located at existing sites outside
the Sanctuary boundary and at the authorized disposal site
that will result from the disposal site study underway on
the effective date of Sanctuary designation will be regulated
primarily under Section 103 of the MPRSA and Section 404
of the Clean Water Act and will not be regulated under the
Sanctuary regulatory regime. Because of the intensive environmental
evaluation of disposal sites and disposal activities by
COE and EPA, NOAA does not anticipate that any site designated
for disposal of dredged material will impact Sanctuary resources.
Therefore, the Sanctuary regulatory prohibition on discharges
does not apply to dredged material deposited outside the
Sanctuary at existing disposal sites off of the Golden Gate
(see Appendix IV to the regulations) and will not apply
to dredged material deposited outside the Sanctuary at the
authorized disposal site that will result from the disposal
site study underway on the effective date of Sanctuary designation,
provided that the activity is pursuant to, and complies
with the terms and conditions of, a valid Federal permit
or approval. The future disposal site will be located within
one of the Long-Term Management Strategy Ocean Study Areas
described in Appendix IV. When that site is authorized,
Appendix IV will be updated to incorporate its precise location.
COE will coordinate closely with NOAA concerning the management
of dredged material disposal activities at the new site.
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(10) |
Comment: The regulatory regime for aquaculture
and kelp harvesting activities within the Sanctuary remains
unclear. Currently, aquaculture development is the responsibility
of the California Department of Fish and Game (CDF&G),
and because of this, aquaculture operations requiring seabed
alterations should be excluded from Sanctuary regulations,
and allowed to continue. |
Response: Neither kelp harvesting nor
aquaculture is being regulated as part of the Sanctuary regime
upon designation. Both activities are included in the Designation
Document as activities subject to future regulation should
the need arise. NOAA will coordinate with the CDF&G, which
is responsible for managing kelp harvesting and aquaculture
operations. |
(11) |
Comment: The Sanctuary should include
all waters in the Elkhorn Slough National Estuarine Research
Reserve (ESNERR), and this relationship should be formalized.
It is important to create a link between the Monterey Bay
Sanctuary and the Reserve, even if this means exempting Moss
Landing Harbor. An agreement should be developed between NOAA
and the Moss Landing Harbor District to ensure the success
of the two programs as well as coordinating the management
plans and objectives of both sites. |
Response: NOAA agrees it is important to coordinate
closely with the ESNERR to ensure the success of both sites.
The Sanctuary includes all waters, and submerged lands thereunder,
in the Slough up to the ESNERR boundary. NOAA agrees that
links should be fostered since missions and goals are similar.
NOAA supports the exchange of information, research, education
and staff expertise between the two programs. Meeting the
objectives for both sites, as well as implementing the management
plans, can be coordinated through the Sanctuary Advisory
Committee and the ESNERR Advisory Committee. NOAA encourages
Sanctuary and ESNERR staff to participate actively in this
process.
However, regardless of their similarities, the two programs
must remain separate because the National Estuarine Reserve
Research System Program regulations prohibit the inclusion
of reserves within sanctuaries (15 CFR 921.4(c)).
After consultation with the Moss Landing Harbor District,
NOAA has determined the most appropriate method of linking
the two sites is to exclude from the Sanctuary Moss Landing
Harbor east of the Colregs. line and west of the Highway
One bridge, and to include the waters of Elkhorn Slough
east of the Highway One bridge to the boundary of the ESNERR
with overlapping jurisdiction with the Moss Landing Harbor
District over the Moss Landing Harbor.
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(12) |
Comment: There is a need for landward
protection and controls on nearshore development. Adequate
protection of the ocean environment must include management
of the adjacent coastal and upland zones. NOAA should extend
its jurisdiction to include beaches, dunes, uplands, and wetland
habitats adjacent to the proposed Sanctuary. |
Response: NOAA agrees that protection
and management of the land portion of the coastal zone is
necessary for adequate protection of the ocean environment.
NOAA will coordinate with existing coastal management authorities,
such as COE, EPA, the California Coastal Commission, State
Water Resources and Regional Water Quality Control Boards
and State Lands Commission, regarding potential land- and
water-based threats and impacts to the Sanctuary. The physical
boundary of this sanctuary encompasses ocean and coastal waters
up to the mean high-water line. NOAA intends to protect the
Sanctuary from the impacts of coastal development via its
regulation of discharges or deposits from beyond the boundary
of the Sanctuary that subsequently enter the Sanctuary and
injure a Sanctuary resource or quality. |
(13) |
Comment: NOAA should clarify whether
it will limit the amount of silt in the sand used for beach
nourishment. Even though the sand may be placed above the
high tide mark, erosion may move silt into the Bay. |
Response: NOAA will work with COE, EPA
and other appropriate authorities to determine the impacts
of beach nourishment programs. If it should appear that a
particular project would injure Sanctuary resources or qualities,
NOAA may impose terms and conditions pursuant to 15 CFR 944.10
and 944.11. |
(14) |
Comment: Protection of historical and
cultural resources within the Sanctuary is a significant concern.
NOAA should prohibit moving, injuring, or possessing historical
resources within the Sanctuary. However, Sanctuary regulations
should not apply to activities permitted by the State within
State waters under the Shipwreck and Historic Maritime Resources
Program. |
Response: NOAA agrees that it is necessary to protect
and manage historical and cultural resources within the
Sanctuary boundary. The regulations include a prohibition
on moving, removing, possessing or injuring, or attempting
to move, remove or injure these resources.
The Abandoned Shipwreck Act of 1987 gives States the title
to certain abandoned shipwrecks in State waters. Under the
MPRSA, the Sanctuaries and Reserves Division, NOAA, has
managerial responsibilities for abandoned shipwrecks within
National Marine Sanctuaries, including those located in
State waters, for the purpose of protecting them. NOAA will
coordinate with State agencies to ensure that historical
and cultural resources, as well as living marine resources,
within the Sanctuary are protected.
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(15) |
Comment: The prohibition on the taking
of marine mammals and seabirds within the Sanctuary is redundant
with the Endangered Species Act (ESA), the Marine Mammal Protection
Act (MMPA) and the Migratory Bird Treaty Act (MBTA). |
Response: While marine mammals, migratory seabirds
and endangered species are protected under these acts, NOAA
believes that the higher penalties afforded under the MPRSA
will provide a stronger deterrent.
The MBTA sets maximum criminal fines at either $500 or
$2,000 per violation, depending on the violation. The MMPA
sets maximum civil penalties at $10,000 and maximum criminal
fines at $20,000. The ESA sets maximum civil penalties at
$500, $12,000 or $25,000 per violation, depending on the
violation; maximum criminal fines are set at $50,000. (All
three statutes also provide for imprisonment for criminal
violations.)
The MPRSA (under §307) allows NOAA to assess civil
penalties as high as $50,000 for each violation. In addition,
monies collected under the MPRSA are available to enhance
the National Marine Sanctuary Program.
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(16) |
Comment: Many commenters stated fishing
should not be prohibited within the Sanctuary. Instead, fisheries
resource regulation should remain under the jurisdiction of
the State of California, the National Marine Fisheries Service
(NMFS) and the Pacific Fisheries Management Council (PFMC).
Other commenters requested NOAA to regulate harmful fishing
activities such as gill-netting and shark finning. NOAA's
position should be clarified in the FEIS/MP. |
Response: Fishing is not being regulated as part
of the Sanctuary regime and is not included in the Designation
Document as an activity subject to future regulation. Fisheries
management will remain under the existing jurisdiction of
the State of California, NMFS and PFMC. Sanctuary prohibitions
that may indirectly affect fishing activities have been
written to explicitly exempt aquaculture, kelp harvesting
and traditional fishing activities.
Existing fishery management agencies are primarily concerned
with the regulation and management of fish stocks for a
healthy fishery. In contrast, the sanctuary program has
a different and broader mandate under the MPRSA to protect
all sanctuary resources on an ecosystem wide basis. Thus,
while fishery agencies may be concerned about certain fishing
efforts and techniques in relation to fish stock abundance
and distribution the Sanctuary program is also concerned
about the potential incidental impacts of specific fishery
technique on all sanctuary resources including benthic habitats
or marine mammals as well as the role the target species
plays in the health of the ecosystem. In the case of the
Monterey Bay area fish resources are already extensively
managed by existing authorities.
Should problems arise in the in the future NOAA would consult
with the State, PFMC and NMFS as well as the industry to
determine an appropriate course of action.
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(17) |
Comment: Many commenters requested NOAA
to prohibit motorized aircraft from flying over the Sanctuary.
Other commenters stated Federal Aviation Regulations (FARs)
already adequately protect Sanctuary resources from aircraft
impacts, making additional regulations unnecessary. In addition,
new regulations may hinder cooperative emergency response
plans, routine helicopter operations, and rescue attempts. |
Response: The regulations prohibit flying motorized
aircraft at less than 1,000 feet above the Sanctuary within
four zones. Generally, these zones are from Point Santa
Cruz north, Carmel Bay south (overlapping the California
Sea Otter Game Refuge), and around Moss Landing and Elkhorn
Slough (see Appendix II for specific zones).
NOAA recognizes that overflights are regulated under the
FARs. Unlike the FARs, however, Sanctuary overflight regulations
are intended to protect the living marine resources of the
Sanctuary from disturbance by low-flying aircraft and in
this case require flying at higher altitudes than normally
required by the FARs. The prohibition does not apply to
overflights that: 1) are necessary to respond to an emergency
threatening life, property or the environment; 2) are necessary
for valid law enforcement purposes; or 3) conducted by the
Department of Defense and specifically exempted by NOAA
after consultation with that Department.
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(18) |
Comment: A more precise definition of "thrill
craft" is needed |
Response: NOAA has changed the term "thrill craft" in the
proposed regulations to "motorized personal water craft"
(MPWC) in the final regulations and revised the definition
to include vessels up to fifteen feet. This category of
vessel was selected because of the threat posed to Sanctuary
resources by their operation.
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(19) |
Comment: Thrill craft should be prohibited
throughout the Sanctuary. The danger these craft pose to the
biological resources of the area, such as marine mammals and
kelp beds, as well as other users of the area such as divers
and surfers necessitates a prohibition or regulation of personal
water craft. In addition, MPWC should be prohibited in "areas
of biological significance," including those with high human-use
levels such as beaches; diving, swimming and surfing areas;
state parks; and reserves. Beside the potential danger to
recreationists, MPWC disrupt low-intensity area uses. In addition,
many commenters found the operation of MPWC to be incompatible
with the existence of the Sanctuary for reasons unquantifiable. |
Response: NOAA recognizes the threat posed by MPWC
operation to the conservational, recreational, ecological
and esthetic resources and qualities of the Sanctuary. As
a result, the regulations have been revised to prohibit
the operation of MPWC within the Sanctuary, except within
four zones and access routes (15 CFR 944.5(a)(8)). Generally,
these areas are located off the harbors of Pillar Point,
Santa Cruz, Moss Landing, and Monterey. They were chosen
to avoid injury to kelp beds, sea otters and other marine
mammals, seabirds and other marine life and to minimize
conflicts with other recreational users and because these
areas are accessible from launch areas and encompass areas
traditionally used by MPWC. Restriction of MPWC operation
to these areas of the Sanctuary will also reduce esthetic
disturbance.
A prohibition of MPWC operation in the Sanctuary except
in the four areas is designed to increase resource protection
while still allowing opportunities for this form of recreation
in the Sanctuary. There has been at least one reported collision
in the Monterey Bay area between a jet ski and sea otters.
Collisions with and other disturbance of marine mammals
elsewhere from MPWC have also occurred. The small size,
maneuverability and high speed of these craft is what causes
these craft to pose a threat to resources. Resources such
as sea otters and seabirds are either unable to avoid these
craft or are frequently alarmed enough to significantly
modify their behavior such as cessation of feeding or abandonment
of young. Also other, more benign, uses of the Sanctuary
such as sailing, kayaking, surfing and diving are interfered
with during the operation of MPWC. Further, as indicated
above, restriction of operation of MPWC to the specified
zones and access routes will reduce esthetic disturbance.
The zones and access routes where the MPWC can still operate
allow the MPWC operators to continue this form of recreation
albeit in areas away from those other forms of recreation
and beyond those areas inhabited by marine mammals and seabirds
and other sensitive marine life. By establishing defined
MPWC operating areas, this approach provides for more effective
enforcement to protect sensitive marine life and for less
confusion to MPWC operators and other recreationists than
would the establishment of minimum approach distances governing
approaches by MPWC to sensitive marine life or other recreational
users. NOAA intends to install buoys to mark the boundaries
of the MPWC operating areas.
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(20) |
Comment: NOAA should choose DEIS/MP management
plan alternative 2, which proposes that full-time staffing
be implemented immediately after designation. The Sanctuary
is important, and the commitment of a full-time and immediate
staff is necessary to initiate Sanctuary programs. |
Response: NOAA's preferred management
plan is a variation of alternative 2. This plan would establish
the Sanctuary headquarters soon after designation and immediately
provide full-time staffing of approximately five personnel
to ensure that the Sanctuary program is implemented quickly
and efficiently. NOAA's preferred management plan will build
upon public support from the designation process and will
increase opportunities for interpretation and research programs
soon after designation. Additional staff and satellite facilities
will be phased in after designation. |
(21) |
Comment: NOAA should clearly identify
how the Sanctuary Advisory Committee (SAC) will be set up,
who will be on it, and how it will function |
Response: One of the Sanctuary Manager's
first priorities will be to create the SAC according to the
process and guidelines of the Federal Advisory Committee Act
(FACA). See Appendix A of the FEIS/MP. It is NOAA's goal to
have wide representation on the SAC, and the Manager will
consider the comments of all interested parties. NOAA will
draft a charter, make membership recommendations, which will
include appropriate governmental and non-governmental representatives,
to the Secretary of Commerce, and coordinate with the General
Services Administration's review of the SAC formation and
accomplishments. The SAC will function strictly in an advisory
capacity. Once the Sanctuary Manager is selected, terms of
office, committee composition and function will be defined
in accordance with FACA |
(22) |
Comment: NOAA should clarify the relationship
between Department of Defense (DOD) national defense exemptions
from prohibited activities and oil and gas activities. |
Response: The Minerals Management Service
(MMS) in the Department of the Interior (DOI) is responsible
for hydrocarbon development lease sales in Federal waters,
not DOD. While the Sanctuary regulations allow DOD to conduct
certain prohibited activities, they do not allow DOD to conduct
any oil, gas or mineral activity in the Sanctuary. |
Appendix
B Section II
Appendix
B Table of Contents
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