II 109th CONGRESS 1st Session S. 880 IN THE SENATE OF THE UNITED STATES April 21, 2005 Mrs. Boxer (for herself and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To expand the boundaries of the Gulf of the Farallones National Marine Sanctuary and the Cordell Bank National Marine Sanctuary.

1.

Short title

This Act may be cited as the Gulf of the Farallones and Cordell Bank National Marine Sanctuaries Boundary Modification and Protection Act.

2.

Findings

Congress finds the following: (1)The Gulf of the Farallones extends approximately 100 miles along the coast of Marin and Sonoma counties of northern California. It includes approximately one-half of California’s nesting seabirds, rich benthic marine life on hard-rock substrate, prolific fisheries, and substantial concentrations of resident and seasonally migratory marine mammals. (2)Cordell Bank is adjacent to the Gulf of the Farallones and is a submerged island with spectacular, unique, and nationally significant marine environments. (3)These marine environments have national and international significance, exceed the biological productivity of tropical rain forests, and support high levels of biological diversity. (4)These biological communities are easily susceptible to damage from human activities, and must be properly conserved for themselves and to protect the economic viability of their contribution to national and regional economies. (5)The Gulf of Farallones and Cordell Bank include some of the Nation’s richest fishing grounds, supporting important commercial and recreational fisheries. These fisheries are regulated by State and Federal fishery agencies and are supported and fostered through protection of the waters and habitats of Gulf of the Farallones National Marine Sanctuary and Cordell Bank National Marine Sanctuary. (6)The report of the Commission on Ocean Policy established by the Oceans Act of 2000 (Public Law 106–256; 33 U.S.C. 857–19 note) calls for comprehensive protection for the most productive ocean environments and recommends that such environments be managed as ecosystems. (7)New scientific discoveries by the National Marine Sanctuary Program support comprehensive protection for these marine environments by broadening the geographic scope of the existing Gulf of the Farallones National Marine Sanctuary and the Cordell Bank National Marine Sanctuary. (8)Cordell Bank is at the nexus of an ocean upwelling system, which produces the highest biomass concentrations on the west coast of the United States.

3.

Policy and purpose

(a)

Policy

It is the policy of the United States in this Act to protect and preserve living and other resources of the Gulf of the Farallones and Cordell Bank marine environments. (b)

Purpose

The purposes of this Act are the following: (1)To extend the boundaries of the Gulf of the Farallones National Marine Sanctuary and the Cordell Bank National Marine Sanctuary to the areas described in section 5. (2)To strengthen the protections that apply in the Sanctuaries. (3)To educate and interpret for the public regarding those marine environments. (4)To manage human uses of the Sanctuaries under this Act and the National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.). (c)

Effect on fishing activities

Nothing in this Act is intended to alter any existing authorities regarding the conduct of fishing activities in the Sanctuaries.

4.

Definitions

In this Act: (1)

Aquaculture

The term aquaculture means the propagation or rearing of aquatic organisms in controlled or selected aquatic environments for any commercial, recreational, or public purpose. (2)

Cordell Bank NMS

The term Cordell Bank NMS means the Cordell Bank National Marine Sanctuary. (3)

Farallones NMS

The term Farallones NMS means the Gulf of the Farallones National Marine Sanctuary. (4)

Sanctuaries

The term Sanctuaries means the Gulf of the Farallones National Marine Sanctuary and the Cordell Bank National Marine Sanctuary, as expanded by section 5. (5)

Secretary

The term Secretary means the Secretary of Commerce. (6)

Mean higher high water mark

The term mean higher high water mark means the arithmetic average of the elevations of the higher of two high waters of a tidal day over a period of time as determined by the National Oceanic and Atmospheric Administration. (7)

Person

The term person means any private or public individual, corporation, partnership, trust, institution, association, or any other public or private entity, whether foreign or domestic, or any officer, employee, agent, department, agency, or instrumentality of the Federal Government, of any State, tribal, or local unit of government, or of any foreign government.

5.

National Marine Sanctuary boundary adjustments

(a)

Gulf of the Farallones

(1)

Boundary adjustment

The areas described in paragraph (2) are added to the existing Gulf of the Farallones National Marine Sanctuary described in part 922.80 of title 15, Code of Federal Regulations. (2)

Areas included

(A)

In general

The areas referred to in paragraph (1) consist of the following: (i)All submerged lands and waters, including living marine and other resources within and on those lands and waters, from the mean higher high water mark to the boundary described in subparagraph (B). (ii)The submerged lands and waters, including living marine and other resources within those waters, within the approximately two square nautical mile portion of Cordell Bank NMS (as in effect immediately before the enactment of this Act) that is located south of the area that is added to Cordell Bank NMS by subsection (b)(2), which are transferred to the Farallones NMS from the Cordell Bank NMS. (B)

Boundary described

The boundary referred to in subparagraph (A)(i) is the line formed by connecting points in succession beginning at Bodega Head’ Southernmost Point located at 38 degrees, 18 minutes north latitude, 123 degrees, 6.5 minutes west longitude; then in a northwestly direction along the coast to the mouth of the Gualala River at 38 degrees, 45 minutes north latitude, 123 degrees, 31.9 minutes west longitude; then west 21.7 nautical miles to 38 degrees, 45 minutes north latitude, 124 degrees west longitude; then due south 27 nautical miles to 38 degrees, 18 minutes north latitude, 124 degrees west longitude; then 37.7 nautical miles east to 38 degrees, 18 minutes north latitude, 123 degrees, 12 minutes west longitude; then to the shared boundary of the Farallones NMS and Cordell Bank NMS (as in effect immediately before the enactment of this Act) at 38 degrees, 15.9 minutes north latitude, 123 degrees, 10.9 minutes west longitude. (b)

Cordell Bank

(1)

Boundary adjustment

The area described in paragraph (2) is added to the existing Cordell Bank National Marine Sanctuary described in part 922.110 of title 15, Code of Federal Regulations. (2)

Area included

(A)

In general

The area referred to in paragraph (1) consists of all submerged lands and waters, including living marine and other resources within those waters, within the boundary described in subparagraph (B). (B)

Boundary

The boundary referred to in subparagraph (B) is the line formed by connecting points in succession beginning at the present most northeastern point of the Cordell Bank NMS at 38 degrees, 15.9 minutes north latitude, 123 degrees, 10.9 minutes west longitude; then to 38 degrees, 18 minutes north latitude, 123 degrees, 12 minutes west longitude, which is 7 miles west of Bodega Head; then to 38 degrees, 18 minutes north latitude, 123 degrees, 40 minutes west longitude, which is 28.6 nautical miles west of Bodega Head; then due south 32 nautical miles to 37 degrees, 50 minutes north latitude, 123 degrees, 40 minutes west longitude; then 11.5 nautical miles east where it intersects with a boundary shared by Cordell Bank NMS and Farallones NMS at 37 degrees, 50 minutes north latitude, 123 degrees, 25.4 minutes west longitude. (c)

Inclusion in the system

The areas included in the Sanctuaries under subsections (a) and (b) of this section shall be managed as part of the National Marine Sanctuary System, established by section 301(c) of the National Marine Sanctuaries Act (16 U.S.C. 1431(c)), in accordance with that Act. (d)

Updated NOAA charts

The Secretary of Commerce shall— (1)produce updated National Oceanic and Atmospheric Administration charts for the areas in which the Farallones NMS and Cordell Bank NMS are located; and (2)include on such charts the boundaries of the sanctuaries, as revised by this Act.

6.

Prohibition of certain uses

(a)

Mineral and hydrocarbon leasing, exploration, development, and production

No leasing, exploration, development, production, or transporting by pipeline of minerals or hydrocarbons shall be permitted within the Sanctuaries. (b)

Aquaculture

(1)

Prohibition

It is unlawful for any person to conduct aquaculture— (A)in any area of the Sanctuaries; or (B)within Monterey Bay National Marine Sanctuary. (2)

Existing bivalve farming allowed

The prohibition in paragraph (1) shall not apply to persons conducting farming operations of bivalve species that are in existence on the date of enactment of this Act. (3)

Regulations

The Secretary shall issue regulations that specify the operations referred to in paragraph (2). (c)

Discharge of materials and substances

(1)

Prohibitions

It is unlawful for any person— (A)to deposit or discharge any material or substance of any kind within the Sanctuaries; (B)to deposit or discharge any material or substance of any kind that enters and injures any sanctuary resource (as that term is defined in the National Marine Sanctuaries Act (16 U.S.C. 1432)); or (C)to deposit or discharge any invasive species from a vessel in the Sanctuaries. (2)

Changes in salinity

No person shall cause a change of salinity in the Sanctuaries that is injurious to the marine ecosystem of the Sanctuaries. (3)

Limitation on applicability

Paragraph (1) does not apply with respect to any discharge— (A)of fish, fish parts, and chumming materials resulting from, and while conducting otherwise lawful, fishing activity; (B)of food consumed onboard a vessel; (C)of biodegradable effluents incidental to vessel use and generated by an operable Type I or II marine sanitation device as classified by the United States Coast Guard, that is approved in accordance with section 312 of the Federal Water Pollution Control Act (33 U.S.C. 1322) provided the vessel operator secures all marine sanitation devices in a manner that prevents discharge of untreated sewage from a Type I or Type II Coast Guard-approved sanitation devices, except that this subparagraph does not apply with respect to a discharge from a cruise ship within the boundaries of either sanctuary; (D)of biodegradable material resulting from deck wash down and vessel engine cooling water (excluding ballast water and oily wastes from bilge pumping), from a vessel; (E)from vessel engine exhaust; or (F)that— (i)originates in the Russian River Watershed outside the boundaries of the Farallones NMS, as expanded by section 5; (ii)originates from the Bodega Marine Laboratory; and (iii)is permitted under a National Pollution Discharge Elimination System permit that is in effect on the date of enactment of this Act, or under a new or renewed National Pollution Discharge Elimination System permit that does not increase pollution in the Sanctuaries. (d)

Consultation requirement for changes in water flow

Any Federal, State or local government agency that is responsible for significant alteration of fresh water flow regimes that may affect the Sanctuaries must consult with the Secretary prior to initiating such change in order to ensure sanctuary resources are not injured. (e)

Penalties and enforcement

A violation of this section shall be treated as a violation of section 306 of the Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1436).

7.

Management plans and regulations

(a)

Interim plan

The Secretary shall complete an interim supplemental management plan for each of the Sanctuaries by not later than 30 months after the date of enactment of this Act, that focuses on management in the areas added under this Act. These supplemental plans shall not weaken existing resource protections. (b)

Revised plans

The Secretary shall issue a revised comprehensive management plan for each of the Sanctuaries during the next management review process required by section 304 of the National Marine Sanctuaries Act (16 U.S.C. 1434(e)) for the Sanctuaries, and issue such final regulations as may be necessary. (c)

Application of existing regulations

The regulations for the Gulf of the Farallones National Marine Sanctuary (15 C.F.R. 922, subpart H) and the Cordell Bank National Marine Sanctuary (15 C.F.R. 922, subpart K) shall apply to the areas added to the Sanctuaries under section 5 until the Secretary modifies such regulations in accordance with this section. (d)

Procedures

In developing the revisions under this section, the Secretary shall follow the procedures specified in sections 303 and 304 of the Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1433 and 1434), except those procedures requiring the delineation of national marine sanctuary boundaries and development of a resource assessment report. (e)

Contents of plans

Revisions to each comprehensive management plan under this section shall, in addition to matters required under section 304(a)(2) of the Marine Protection, Research and Sanctuaries Act of 1972 (16 U.S.C. 1434(A)(2))— (1)facilitate all public and private uses of each of the Sanctuaries consistent with the primary objective of sanctuary resource protection; (2)establish temporal and geographical zoning if necessary to ensure protection of sanctuary resources; (3)identify priority needs for research which will— (A)improve management of each of the Sanctuaries; (B)diminish threats to the health of the ecosystems in the Sanctuaries; or (C)fulfill both of subparagraphs (A) and (B); (4)establish a long-term ecological monitoring program and database, including the development and implementation of a resource information system to disseminate information on the Sanctuaries’ ecosystem, history, culture and management; (5)identify alternative sources of funding needed to fully implement the plan’s provisions and supplement appropriations under section 313 of the Marine Protection, Research, and Sanctuaries Act of 1972 (16 U.S.C. 1444); (6)ensure coordination and cooperation between Sanctuary managers and other Federal, State, and local authorities with jurisdiction within or adjacent to the Sanctuaries; (7)in the case of revisions to the plan for the Farallones NMS, promote cooperation with farmers and ranchers operating in the watersheds adjacent to the Gulf of the Farallones NMS and establish voluntary best practices programs for farming and ranching; (8)promote cooperative and educational programs with fishing vessel operators and crews operating in the waters of the Sanctuaries, and, whenever possible, include individuals who engage in fishing and their vessels in cooperative research, assessment, and monitoring programs of the education, among users of the Sanctuaries, about conservation and navigational safety and the conservation of those resources; and (9)promote education, among users of the Sanctuaries, about conservation and navigation safety. (f)

Public participation

The Secretary shall provide for participation by the general public in the revision of the comprehensive management plans and regulations under this section.

8.

Feasibility of a new Sanctuary designation

(a)

Review and recommendation

As part of the first review, following the date of enactment of this Act, of the Gulf of the Farallones National Marine Sanctuary Management Plan pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434(e)), the Secretary shall— (1)conduct a review of the operations of the Farallones NMS; and (2)following not less than one public hearing held in the area added to the Farallones NMS by this Act and the receipt of public comment, determine whether that area shall be designated as a new and separate National Marine Sanctuary. (b)

Considerations for determination

In making the determination under subsection (a)(2), the Secretary shall consider responsiveness to local needs, the effectiveness of conservation, education and volunteer programs, and organizational efficiency. (c)

Implementation of determination

If the Secretary determines under subsection (b) to designate a new national marine sanctuary, the Secretary shall implement measures to assure a smooth and effective transition to a separate national marine sanctuary.