Section 304(d) Consultations

Section 304(d) of the National Marine Sanctuaries Act requires interagency consultation between NOAA and federal agencies taking actions, including authorization of private activities, “likely to destroy, cause the loss of, or injure a sanctuary resource.”  In addition, federal agencies are required to consult on proposed actions that “may affect” the resources of Stellwagen Bank National Marine Sanctuary.

Section 304(d) outlines the basic process by which federal agencies are to consult with NOAA on activities that trigger the need to consult.  If a federal agency finds that a proposed action is likely to injure sanctuary resources, the agency is required to submit a “written statement” to the Office of the National Marine Santuries describing the potential effects of the activity on sanctuary resources at the earliest practicable time, but in no case later than no later than 45 days before the final approval of the action, unless another schedule is agreed to.  If the ONMS finds that the proposed action is likely to injure sanctuary resources, it must, within 45 days of receipt of complete information on the proposed action from the federal agency, develop and recommend “reasonable and prudent alternatives” for the agency to implement to protect sanctuary resources.  Upon receipt of these alternatives, the agency is required to consult with the ONMS regarding plans for incorporating these recommendations into the proposed action.

If the agency decides not to follow the ONMS recommendations, it must provide a written explanation for that decision to the ONMS.  If the agency takes an action other than an alternative recommended by the ONMS and the action results in the destruction of, loss of, or injury to a sanctuary resource, the head of the agency must promptly prevent and mitigate further damage and restore or replace the sanctuary resource in a manner approved by the ONMS.

For more information on 304(d) consultations, contact David Bizot, ONMS National Permit Coordinator, at david.bizot@noaa.gov or 301-713-7268.