[Federal Register Volume 59, Number 90 (Wednesday, May 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11389]
[[Page Unknown]]
[Federal Register: May 11, 1994]
_______________________________________________________________________
Part VIII
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 925
Olympic Coast National Marine Sanctuary Regulations; Final Rule
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 925
[901064-0264]
RIN 0648-AC63
Olympic Coast National Marine Sanctuary Regulations
AGENCY: Office of Ocean and Coastal Resource Management (OCRM),
National Ocean Service (NOS), National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce (DOC).
ACTION: Notice of National Marine Sanctuary Designation; final rule;
and summary of final Management Plan.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA), by
the Designation Document contained in this document, and as required by
section 205(a)(4) of Public Law No. 100-627, designates an
approximately 2,500 square nautical mile area of coastal and ocean
waters, and the submerged lands thereunder, off the Olympic Peninsula
of Washington State, including the waters of the Strait of Juan de Fuca
eastward to Koitlah Point, as the Olympic Coast National Marine
Sanctuary (Sanctuary). This document publishes the final Management
Plan detailing the goals and objectives, management responsibilities,
research activities, interpretive and educational programs, and
enforcement, including surveillance, activities for the Sanctuary.
Further, NOAA, by this document, issues final regulations to
implement the designation by regulating activities affecting the
Sanctuary consistent with the provisions of the Designation Document.
The intended effect of these regulations is to protect the
conservational, recreational, ecological, historical, research,
educational, and aesthetic resources and qualities of the Sanctuary.
Effective Dates: Pursuant to section 304(b) of the Marine Protection,
Research, and Sanctuaries Act (16 U.S.C. 1434(b)), the Governor of the
State of Washington has 45 days of continuous session of Congress
beginning on the day on which this notice is published to review the
designation and regulations before they take effect. After 45 days, the
designation and regulations automatically become final and take effect.
However, if the Governor of the State of Washington certifies within
the 45-day period to the Secretary of Commerce that the designation or
any of its terms are 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 such
disapproval will affect the designation in a manner that the goals and
objectives of the Sanctuary cannot be fulfilled, the Secretary may
withdraw the designation. A document announcing the effective date will
be published in the Federal Register.
ADDRESSES: Copies of the Final Environmental Impact Statement and
Management Plan (FEIS/MP) prepared for the designation are available
upon request from the Sanctuaries and Reserves Division, Office of
Ocean and Coastal Resource Management, National Ocean Service, National
Oceanic and Atmospheric Administration, 1305 East West Highway, Silver
Spring, MD 20910, (301) 713-3125.
FOR FURTHER INFORMATION CONTACT: Nina Garfield, (301) 713-3141.
SUPPLEMENTARY INFORMATION:
I. Background
Section 303 of the Marine Protection, Research, and Sanctuaries
Act, as amended (the ``Act'' or ``MPRSA''), 16 U.S.C. 1433), provides
that the Secretary may designate any discrete area of the marine
environment as a National Marine Sanctuary if the Secretary determines
that such designation will fulfill the purposes and policies of the Act
as set forth in section 301(b) (16 U.S.C. 1431(b)) and finds that:
(1) The area is of special national significance due to its
resource or human-use values;
(2) Existing state and Federal authorities are inadequate or should
be supplemented 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.
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 re-
delegated to the Assistant Administrator of NOAA for Ocean Services and
Coastal Zone Management by NOAA Circular 83-38, Directive 05-50,
September 21, 1983, as amended.
The coastal and ocean waters off the Olympic Coast were recognized
for their high natural resource and human use values and placed on the
National Marine Sanctuary Program Site Evaluation List (SEL) in August
of 1983 (48 FR 35568). In 1988, Congress reauthorized and amended the
Act and directed the Secretary to designate the Olympic Coast National
Marine Sanctuary (Pub. L. 100-627, section 205(a)). In report language
accompanying this legislation, Congress noted that the Olympic Coast
possesses a unique and nationally significant collection of flora and
fauna, and that adjacency of the area to the Olympic National Park
merits the designation of this area as a national marine sanctuary (H.
Rep. No. 4210, 100th Cong., 1st. Sess., 1988).
NOAA held four scoping meetings in Washington State April 10-13,
1989, to solicit public comments on the designation: Aberdeen on April
10, Port Angeles on April 11, Forks on April 12, and Seattle on April
13 (45 FR 10398, March 13, 1989).
On September 20, 1991, NOAA published a proposed Designation
Document and proposed implementing regulations and announced the
availability of the Draft Environmental Impact Statement/Management
Plan (DEIS/MP) (56 FR 47836). Public hearings to receive comments on
the proposed designation, proposed regulations, and DEIS/MP were held
on November 6th in Port Angeles, November 7th in Seattle, November 12th
in Olympia, November 13th in Aberdeen, November 14th in Seaview, and
November 20th in Washington DC. On November 14th, 1991, the period for
submitting public comments was extended from November 27th, 1991 to
December 13th, 1991 pursuant to requests from the State of Washington
and the coastal counties (56 FR 57869). All comments received by NOAA
in response to the Federal Register notice and at the public hearings
were considered and, where appropriate, incorporated in the final
regulations and FEIS/MP. A summary of the comments on the proposed
regulations and the regulatory elements of the DEIS/MP and NOAA's
responses to them follow.
II. Comments and Responses
Issue: Boundaries
Boundary Alternative 1
Comment: NOAA should choose boundary alternative 1 because: (1) it
contains most of the unique ecological features off the Washington
Coast; (2) NOAA can offer greater protection to the coastal features
than the resources further offshore in the event of a spill of
hazardous materials; and (3) vessel traffic would be least affected,
thereby ensuring safer seas.
Response: NOAA disagrees. Boundary alternative 1 contains most of
the ecological features visible above the sea surface. However, a
marine sanctuary should encompass a discrete ecological unit with
definable boundaries (16 U.S.C. 1433 (b)(1)(F)). The marine mammals and
seabirds that transit the waters off the Olympic Peninsula and colonize
the offshore rocks and islands forage in the rich waters and benthic
communities over and on the continental shelf. The shelf is broad off
the Strait of Juan de Fuca. The seaward extent of the shelf coupled
with the upwelling produced from the Juan de Fuca Canyon are the
physical parameters that support the food chain from the plankton to
the marine mammals and seabirds. The offshore rocks and intertidal
communities are only one habitat within the marine ecosystem off the
Olympic Coast. Therefore, the marine sanctuary should encompass the
ecologically significant offshore waters.
With respect to NOAA's ability to protect the offshore waters in
the event of a spill, NOAA agrees that there is little that can be done
once a spill has occurred. The high seas would most likely render
response capabilities ineffective. However, NOAA will coordinate with
the U.S. Coast Guard, the Washington State Office of Marine Safety, and
the coastal tribes to ensure that there is an adequate response
capability for the coastal waters, intertidal regions, and beaches
along the sanctuary including seabird and marine mammal rescue
capabilities.
Extension of the Sanctuary boundary to the shelf edge provides a
buffer area for protecting the coastal resources. NOAA is working with
the U.S. Coast Guard to develop a proposal for an Area to be Avoided
(ATBA) from the shoreward boundary to 25 nautical miles offshore of the
Olympic Peninsula. This ATBA is designed to provide sufficient time to
respond to a vessel that loses power off the Olympic Peninsula. The
ATBA is compatible with many of the existing voluntarily adhered to
traffic patterns along the coast and thus adds only minimal time and
distance to transits between the Strait of Juan de Fuca and
destinations to the south.
Boundary Alternative 2
Comment: NOAA should choose boundary alternative 2 as the preferred
alternative.
Response: NOAA disagrees for the same reasons stated in response to
the previous comment. The seaward extent of boundary alternative 2,
which approximates the 50 fathom isobath, has no relation to the
seaward extent of the coastal ecosystem.
Boundary Alternative 3
Comment: NOAA should choose boundary alternative 3 as the preferred
alternative.
Response: Boundary Alternative 3 excludes the Juan de Fuca Canyon,
which is one of the richest regions of the offshore oceanic ecosystem.
It also excludes some of the highest concentrations of human uses which
threaten the health of the marine ecosystem off the Olympic Peninsula.
Comment: NOAA should not choose boundary alternative 3 as the
preferred alternative because it will be too restrictive for vessel
traffic.
Response: NOAA is proposing no regulations that will unduly
restrict vessel traffic. (See response to comment on boundary
alternative 1).
Boundary Alternative 4
Comment: NOAA should select boundary alternative 4 as the preferred
alternative because:
(1) Many of the unique unspoiled ecological resources that might be
significantly impacted by oil are located in the physically complex
area north of Pt. Grenville including areas of submarine canyons,
productive fishing grounds, and coastal features that are critical
habitat;
(2) Sanctuary status in the southern portion of the study area
would conflict with state managed activities such as dredged material
disposal, while most of the shoreline in the north has little
commercial activity; and
(3) NOAA can enlarge the boundary in the future.
Response: NOAA agrees. One of the most valuable qualities of the
Olympic Peninsula is that it is undeveloped and relatively pristine.
NOAA recognizes that the southern portion of the boundary is much more
developed, especially with respect to the harbor maintenance activities
in Grays Harbor. Further, the rocky intertidal habitats in the north
are much more sensitive to pollution from oil and gas compared to the
sandy beach environments in the southern portion of the study area. In
the event of a spill of hazardous materials, experts predict that it
would take years for intertidal communities of rocky intertidal
environments to become reestablished, whereas it would take an order of
months for the sandy intertidal communities to recolonize. Lastly, NOAA
can expand Sanctuary boundary 4 in the future, in accordance with the
requirements of the Marine Protection, Research, and Sanctuaries Act
(MPRSA), the National Environmental Policy Act (NEPA), and the
Administrative Procedure Act (APA), if deemed necessary.
Comment: NOAA should not choose boundary alternative 4 because:
(1) It is not scientifically defensible for it fails to protect the
important and environmentally delicate estuaries along the southern
coast;
(2) It would render ineffective NOAA's resource monitoring and
sanctuary enforcement mandates; and
(3) It will be too restrictive for vessel traffic.
Response: The boundary of a marine sanctuary should approximate the
most identifiable boundaries of a marine ecosystem. The Site Evaluation
List (SEL), from which sites are selected for consideration as marine
sanctuaries, identified the coastal offshore islands as the core of the
proposed Olympic Coast National Marine Sanctuary (originally identified
as the Western Washington Outer Coast). With this focus, NOAA has
determined that the boundaries of the ecosystem are encompassed by
boundary alternative 4. NOAA recognizes that the coastal estuaries are
ecologically valuable and that many organisms that exist within, or
transit through boundary alternative 4, depend on the estuaries.
However, while the estuaries and outer coast are ecologically linked,
the productivity of the two environments is a function of very distinct
environmental processes.
NOAA believes that protection of the estuaries could be best
achieved through possible inclusion of these areas in programs
targeting estuarine management such as, the National Estuarine Research
Reserve System, the National Estuary Program, or the Coastal Zone
Management Program.
NOAA believes that the size of the sanctuary encompassed by
boundary alternative 4 is manageable with respect to research and
monitoring initiatives.
As discussed above, NOAA is working with the U.S. Coast Guard to
develop a proposal for an ATBA off the northern Olympic Peninsula. It
is designed to be as compatible with existing customary practices among
mariners as possible. NOAA is not promulgating vessel traffic
regulations with designation.
Boundary Alternative 5
Comment: NOAA should choose boundary alternative 5 because:
(1) Activities that are, or could occur, in the southern portion of
the study area can affect the resources in the north;
(2) The entire study area is ecologically connected;
(3) The management needs are greatest in the south;
(4) The sanctuary management regime would complement existing
management initiatives (Willapa Bay watershed planning processes,
Columbia and Snake River Salmon Recovery Planning, State National
Heritage Plans); and
(5) Expansion of the Sanctuary boundary in the future will be too
time-consuming.
Response: NOAA's preferred boundary alternative is based on an
ecologically identifiable boundary. The northern and southern portions
of the study area are distinct with respect to their coastal and
offshore ecology. NOAA can protect Sanctuary resources from outside
activities through the prohibition on discharges outside the Sanctuary
boundary that enter and injure Sanctuary resources. NOAA will be
involved in planning activities that could potentially threaten
Sanctuary resources outside its boundary. The boundary can be expanded
in the future if needed.
Comment: NOAA should not choose boundary alternative 5 because it
is not necessary to encompass the entire Washington coastline as a
marine sanctuary, and it would eliminate any future development of the
coastal areas.
Response: NOAA agrees. See response to previous comment.
Comment: A more detailed analysis of the impacts of sanctuary
designation must be undertaken before seriously considering boundary
alternative 5.
Response: NOAA has undertaken an extensive analysis of the uses and
ecology of the southern portion of the study area and believes that the
ecologically sensitive estuarine environments are adequately protected.
Alternative Boundary Suggestions
Comment: NOAA should establish a series of smaller site-specific
areas surrounding unique marine resources, such as ocean waters
immediately adjacent to already protected terrestrial ecosystems such
as wildlife refuges and the Olympic National Park. This alternative
would afford sanctuary status to marine resources while maintaining
provisions for compatible ocean uses.
Response: NOAA disagrees. Smaller site-specific areas would not
encompass an ecosystem for the reasons stated above. Further,
designation of the marine sanctuary would allow for the continuation of
pre-existing and compatible uses.
Comment: NOAA's analysis of the resources within the study area
identified the southern portion as highly important in terms of
wildlife and fishery values, particularly the areas in and surrounding
Willapa Bay. NOAA should consider modifying boundary alternative 4 by
adding a satellite site encompassing the estuarine environment and the
offshore waters of Willapa Bay.
Response: NOAA's analysis confirmed that the estuarine areas in the
southern portion of the study area are significant natural resources
and that many of the resources utilize the waters off the northern
coast as well. However, NOAA has determined that the estuarine
ecosystems are distinct from the higher energy marine environment of
the northern portion of the study area. In addition, the activities in,
and adjacent to Grays Harbor are managed pursuant to an existing
estuarine management plan promulgated pursuant to the Washington State
Shorelands Management Act. The residents living in the watersheds of
Willapa Bay are currently preparing an estuarine management plan.
Comment: NOAA should consider the creation of a north and south
Olympic Coast National Marine Sanctuary with separate but coordinated
management regimes.
Response: The Act requires the designation of one sanctuary on the
Western Washington Outer Coast with the offshore Islands and coastal
areas of the northern Olympic Peninsula as the core area of the
sanctuary. In carrying out this mandate, NOAA examined the seaward,
northerly, southerly, and easterly extent of the ecosystem that has as
its core the intertidal communities of the outer coast.
Comment: The boundary of the Sanctuary should be modified as
further cetacean information is available.
Response: NOAA can modify the boundary in the future, in accordance
with the requirements of the MPRSA, the NEPA and the APA, as more
information becomes available.
Modification of the Western Boundary
Comment: The outer boundary of the sanctuary should extend westward
to a point that minimizes restrictions and needless re-routing of
vessel traffic and harbor maintenance activities at the opening of
Grays Harbor. To accomplish this objective, the outer limit of the
sanctuary should be set at a distance between 2 and 10 miles from
shore.
Response: Sanctuary boundaries are not established based on vessel
traffic routes, particularly because routes are subject to change. NOAA
will work with existing regulatory agencies to minimize impacts. While
vessel traffic is in the scope of sanctuary regulations, NOAA is not
promulgating vessel traffic regulations at this time.
Comment: The outer boundary should be established at either the 100
or 500 fathom isobath.
Response: NOAA has established the boundary at the 100 fathom
isobath because it is generally recognized to be the seaward extent of
the continental shelf, the area where photosynthetic activity is
greatest.
Comment: Clarify the rationale for establishing the western
boundary of alternatives 4 and 5.
Response: See response to previous comment.
Modification of the Shoreline Boundary
Comment: The shoreline boundary should be established at the lower
low water mark to preclude interference with carefully crafted beach
management plans regulating beach traffic, razor clam harvests and
emergency aircraft landings.
Response: The shoreline boundary of the Sanctuary is located at the
higher high water line where adjacent to Federally-owned land
(including the Olympic National Park and the U.S. Fish and Wildlife
refuges) and the lower low line mark when adjacent to State-owned land.
Thus, the boundary does not interfere with beach management plans.
Razor clam harvests within the intertidal zone of the Sanctuary will be
managed by existing authorities such as the Washington State Department
of Natural Resources, the Quinault Indian Tribe, and the National Park
Service. Emergency aircraft landings are permissible in the Sanctuary.
Comment: The shoreline boundary should cut across the mouths of all
rivers, streams and estuaries because there are sufficient management
plans in place providing protection of inland environments such as the
Washington State Coastal Zone Management Program and the Grays Harbor
Estuary Management Plan.
Response: The shoreline boundary of the Sanctuary has been modified
to cut across the mouths of all rivers, streams and estuaries.
Comment: Clarify why the shoreward boundary distinguishes between
adjacency to tribal and non-tribal lands.
Response: The Tribes have jurisdiction to the mean lower low water
line. Both the Tribes and the State have requested that the Sanctuary
boundary not overlap with tribal and State lands. Therefore, the
coastal boundary has been modified so that it is at mean lower low
water when adjacent to tribal and State owned lands and at mean higher
high water when adjacent to Federally owned lands.
Comment: Existing National Park Service standards, regulations, and
policies must not be diminished as a result of dual designation as a
National Park and National Marine Sanctuary. The majority of the
intertidal areas of the Olympic National Park are Federally designated
Wilderness Area and must be managed accordingly.
Response: The Sanctuary boundary overlaps with the boundary of the
Olympic National Park. NOAA will not diminish the standards,
regulations and policies currently applying to the intertidal areas of
the Olympic National Park. The existing standards, regulations and
policies of the intertidal areas will remain. NOAA will enhance the
protection of these intertidal areas by working with the Coast Guard to
ensure a safer vessel traffic environment, and the upland users of the
watershed to monitor and minimize the impacts of non-point source
pollution. Additionally, NOAA will support research and resource
monitoring initiatives in the intertidal areas and may seek
compensation for damages if an accident were to occur that injures
Sanctuary resources.
Inclusion of the Strait of Juan de Fuca
Comment: The northeastern boundary of the sanctuary should extend
further into the Strait of Juan de Fuca to either: (1) The Lyre River;
(2) the Clallam County Marine Sanctuary at Salt Creek; (3) Low Point;
(4) Crescent Bay/Agate Beach; or (5) Pillar Point. Omission of the
Strait of Juan de Fuca from the Sanctuary excludes the head of the Juan
de Fuca Canyon from the boundary of the Sanctuary, and thus represents
a boundary not based upon an ecological rationale.
Response: NOAA has examined the resources of the Strait of Juan de
Fuca and the FEIS/MP has been revised accordingly. Sections III and IV
(Alternatives, and Environmental Consequences) examine the benefits and
consequences of various alternatives in the Strait of Juan de Fuca.
NOAA believes that the existence of a functional biotic community
characteristic of the marine environment extends into the Strait of
Juan de Fuca to Observatory Point. Eastward of Observatory Point, the
ecosystem is more characteristic of an estuarine environment.
Despite the ecological arguments that support inclusion of the
Strait of Juan de Fuca in the Sanctuary boundary, NOAA does not believe
that the public has had ample opportunity to analyze and comment on the
proposal to add the Strait. Since the Strait of Juan de Fuca lies
entirely in state waters, the Strait of Juan de Fuca cannot be included
without the approval of the Governor of Washington State. However, NOAA
will pursue expanding the boundary if supported by the State of
Washington.
Comment: The boundary of the Sanctuary should be contiguous with
that of the proposed Northwest Straits Sanctuary. A gap between these
two proposed sanctuaries would cause confusion for commercial shipping
and fishing interests and government managing agencies.
Response: At this time, the future and nature of the proposed
Northwest Straits National Marine Sanctuary is uncertain and cannot
serve as a deciding factor in the determination of the eastern boundary
of the Olympic Coast National Marine Sanctuary. The boundary of the
Olympic Coast National Marine Sanctuary must be determined based on
ecological and human use factors. NOAA can modify the boundary in the
future if it is deemed appropriate. NOAA will coordinate with existing
managing agencies to ensure that the Olympic Coast National Marine
Sanctuary and the proposed Northwest Straits National Marine Sanctuary
do not unduly disrupt the management of vessel traffic and fishing.
Comment: The boundary of the Sanctuary should not encompass the
waters of the Strait of Juan de Fuca because closely-monitored vessel
traffic lanes already exist.
Response: The MPRSA encourages multiple uses of the Sanctuary as
long as they are compatible with the resource protection goals of the
Sanctuary. Clearly, the Coordinated Vessel Traffic System in the Strait
of Juan de Fuca is in the best interest of the vessel traffic industry
and the environment. NOAA would not interfere with the vessel traffic
management regime in the Strait of Juan de Fuca if the Governor of the
State of Washington supported inclusion of the Strait of Juan de Fuca
in the Sanctuary boundary.
Northern Boundary
Comment: The northern boundary of the Sanctuary should be adjacent
to the international border and include vessel traffic lanes to
facilitate the establishment of a cooperative international sanctuary
and coordinated vessel traffic management regime.
Response: The northern boundary is adjacent to the international
boundary.
Inclusion of the Estuaries
Comment: NOAA recognized both the high resource values of the
estuaries and the high level of point source discharges. By including
the estuaries in the boundary NOAA would be in a position to work with
the Washington Department of Ecology (WDOE) to correct the sources of
pollution.
Response: NOAA has been working with the Washington Department of
Ecology to address pollution problems in the coastal estuaries. The
Grays Harbor Estuary Management Plan was supported by funding provided
pursuant to the Washington Shorelands Management Act. NOAA agrees that
the estuaries are extremely valuable environments with high levels of
point source discharges. However, NOAA believes that the estuaries are
ecologically distinct from the offshore waters of the Olympic
Peninsula, which is the core area of the Sanctuary. Inclusion in the
National Estuarine Research Reserve System (NERRS) is a more
appropriate management framework for NOAA involvement in estuarine
management.
Comment: The estuaries should be excluded from the Sanctuary
boundary because the Washington State Coastal Zone Management Program
and the Grays Harbor Management Plan offer sufficient protection to the
estuaries.
Response: NOAA agrees. The estuaries are excluded from the
preferred boundary of the Sanctuary.
Consideration of Other National Marine Sanctuaries and National
Estuarine Research Reserves (NERRS)
Comment: Some commenters believed that NOAA should designate the
estuaries as NERR's if they are not included in the boundary of the
Sanctuary because of their natural resource values. Other commenters
believed that NERR status is inadequate since it does not include the
marine environment. Clarification is needed on the specific elements of
the NERRS:
(1) The degree of protection that the NERRS would provide to Grays
Harbor and Willapa Bay;
(2) The process of designation;
(3) Timetable for designation;
(4) Assurances that designation would occur; and
(5) The degree of protection to the estuaries that would be
provided in comparison to sanctuary status.
Response: The terms of designation as a NERR are determined between
the State and NOAA. The process begins with the nomination of an
estuary, or portion thereof, to NOAA for inclusion in the NERRS by the
Governor of the State. The State holds scoping meetings in the region
nominated for inclusion to solicit public input. The State then
prepares a draft environmental impact statement and management plan
(DEIS/MP) where boundary, management, and regulatory alternatives are
assessed and a preferred alternative is decided upon. The DEIS/MP must
demonstrate that the key core land and water areas are adequately
protected by the state. Once the DEIS/MP is completed, public hearings
are held in the region. After a comment period of one month, the State
must produce a Final Environmental Impact Statement/Management Plan
(FEIS/MP) incorporating the public comments. Once NOAA approves the
FEIS/MP the Reserve is officially designated. The entire process
requires approximately three years. Designation is contingent upon
available funding.
Comment: NOAA should encourage sanctuary designations in Northern
Puget Sound, Hood Canal, Southern Oregon and Northern California.
Response: NOAA is working with the State of Washington to study the
feasibility of a sanctuary in Northern Puget Sound. New candidates for
sanctuary status are selected from NOAA's SEL. Sites in southern Oregon
and Northern California are presently on the SEL.
Harbor Exclusion/Inclusion
Comment: How will sanctuary designation influence the disposal of
dredge material from harbor maintenance and development activities that
occur in the Port of La Push, the mouth of the Quilleute River, and
Neah Bay?
Response: No dredge spoil disposal will be permitted within the
Sanctuary, except when used in connection with beach nourishment
projects related to harbor maintenance activities. Harbors are excluded
from the Sanctuary boundary. Therefore, maintenance and development
activities can occur, but disposal of dredge material must be either on
land or outside the boundary of the Sanctuary.
Growth Management
Comment: The Sanctuary should help to limit population growth.
Response: The sanctuary program has no control over population
growth adjacent to the Sanctuary boundary. Rather, the program exists
to ensure that human uses resulting from growth do not have a negative
impact on Sanctuary resources.
Comment: Private land owners should not lose development rights to
their land, nor should they have the value of their land significantly
decreased by regulation without due compensation for that loss.
Response: NOAA is issuing no regulations that will diminish the
development rights of private property owners.
Opposition to Sanctuary Designation
Comment: The marine sanctuary should not be designated because: (1)
It would shut down the fishing industry; (2) existing legislation and
management regimes offer adequate protection; (3) potential industrial
interests would be stifled because the sanctuary would over-regulate
the local economy and its growth; (4) the ecological/aesthetic values
of Washington's coastline are not permanently threatened; (5) local
airports in Aberdeen and Ocean Shores would close due to insurance
problems; and (6) the Olympic National Park has too much control over
the Olympic Peninsula already.
Response: The Sanctuary will not shut down the fishing industry.
Fishing is not within the scope of Sanctuary regulation; the regulation
of fishing would remain with existing management regimes. Further, the
Sanctuary will ensure greater protection from risks due to oil, gas and
mineral development and vessel traffic accidents.
NOAA disagrees that existing legislation offers adequate protection
of the offshore resources. The threats from such things as vessel
traffic, oil and gas development, sand and gravel mining and Navy
practice bombing of Sea Lion Rock have not been addressed through a
comprehensive management regime that recognizes the value and fragility
of the marine ecosystem off the Olympic Peninsula. NOAA does not
believe that the Sanctuary will over-regulate the local economy since
the main source of income in the region is from tourism, fishing and
timber production-none of which will be negatively affected by the
Sanctuary. Tourism and fishing will likely benefit from Sanctuary
status due to the increased protection of the marine environment.
Issue: Alteration of/or Construction on the Seabed
Comment: The regulation pertaining to alteration or construction of
the seabed may be interpreted as prohibiting such activities as
geologic research, the placement of current meters, sediment traps and
similar research equipment, all of which might be necessary if
environmental studies were to be conducted in the Mineral Management
Service (MMS) Washington-Oregon planning area. To clarify the intent of
this prohibition, ``Government sponsored environmental studies'' should
be added in the second sentence of this section as one of the
activities for which this prohibition does not apply.
Response: NOAA supports research within the Sanctuary. However, the
prohibition on alteration of, or construction on the seabed applies to
all research activities, including those conducted by governmental
agencies. All research activities conducted within the Sanctuary that
violate a Sanctuary regulation must be undertaken pursuant to a
Sanctuary research permit to ensure that the impacts from the research
are minimal and temporary.
Comment: The prohibition on the alteration of, or construction on
the seabed should not interfere with current or future harbor
maintenance or fishing activities including: (1) Jetty and groin
construction; (2) permitted dredging of channels and harbors; (3) the
use of dredge spoils for underwater berm construction; (4) construction
and improvement of boat launching and marine facilities adjacent to
reservations; (5) the retrieval of fishing gear (including crab pots)
and sunken vessels; (6) bottom trawling and scallop dredging; and (7)
tribal fin and shellfish operations. NOAA needs to clarify the
exemption of activities incidental to routine fishing and vessel
operations. The exemptions for harbor maintenance and fishing
activities should read: ``attempting to alter the seabed for any
purpose other than anchoring vessels, normal fishing operations to
include commercial bottom trawling and crab pot recovery, and routine
harbor maintenance.''
Response: Ports and harbors are not included within the boundary of
the Sanctuary. The boundary of the Sanctuary adjacent to the Port of La
Push is congruent with the Colreg lines at the mouth of the harbors.
Further, there is the following exception to the alteration-of-the-
seabed regulation: ``Harbor maintenance in the areas necessarily
associated with Federal Projects in existence on the effective date of
Sanctuary designation, including dredging of entrance channels and
repair, replacement or rehabilitation of breakwaters and jetties.'' The
noted activities incidental to fishing have been exempted from the
Sanctuary regulations.
Comment: NOAA should prohibit all dredging and removal of sand and
gravel within the Sanctuary boundary.
Response: NOAA has prohibited all dredging and removal of sand and
gravel within the Sanctuary boundary except as an incidental result of
harbor maintenance activities. These activities threaten the integrity
of the benthic community and the food source of many fish, marine
mammals and seabirds.
Comment: NOAA should not subject the exploration and development of
offshore mineral activities to the same restrictions proposed for the
exploration and development of Outer Continental Shelf (OCS) oil and
gas.
Response: All of these activities injure the benthic communities in
the Sanctuary and NOAA does not believe that there is cause for
exceptions.
Comment: Clarify NOAA's policy on establishing artificial reefs
within the Sanctuary.
Response: There are no artificial reefs in the Sanctuary as of the
date of designation. The creation of new artificial reefs would be
prohibited pursuant to the prohibition on alteration of, or
construction on, the seabed.
Comment: NOAA should prohibit the construction of pipelines on the
sea floor.
Response: The regulation prohibiting the alteration of, or
construction on, the seabed would prohibit the construction of
pipelines on the sea floor.
Issue: Cultural and Historic Resources
Comment: NOAA should prohibit moving, injuring, or possessing
historic resources within the Sanctuary.
Response: NOAA agrees that it is necessary to protect and manage
historical and cultural resources within the Sanctuary boundary. NOAA
has included a prohibition on moving, removing, possessing, injuring,
or attempting to move, remove, or injure these resources, except as
resulting incidentally from traditional fishing operations. If NOAA
determines that fishing activities are resulting in injury to Sanctuary
historic and cultural resources, NOAA may amend the Sanctuary
regulations to abolish the exemption for these activities.
Comment: The proposed regulations dealing with cultural resources
fail to preserve the tribes' ability to control access to, and removal
of, their cultural heritage. Therefore, NOAA should add a new
Sec. 925.5(a)(8) prohibiting: ``removal or attempted removal of any
Indian cultural resource or artifact, or entry onto a significant
cultural site designated by a tribal governing body with the
concurrence of the Director, except with the express written consent of
the governing body of the tribe or tribes to which such resource,
artifact, or cultural site pertains.'' NOAA should pursue a cooperative
agreement with the tribes to coordinate management of cultural
artifacts of tribal significance.
Response: The MPRSA provides NOAA with the authority to control
access to cultural artifacts within the Sanctuary thereby helping to
ensure their preservation. Accordingly, anyone proposing to remove a
cultural or historic resource must apply for and obtain a sanctuary
permit from NOAA. NOAA acknowledges the interest of the coastal tribes
in preserving their cultural heritage and, in particular, those
cultural artifacts of tribal significance found within the Sanctuary.
NOAA considers its objective of preserving the historical and cultural
resources of the Sanctuary to be compatible with the coastal tribes'
desire to preserve their cultural heritage. Therefore, NOAA has
modified Sec. 925.9(j) to state: ``The Director or designee shall
obtain the express written consent of the governing body of an Indian
tribe prior to issuing a permit, if the proposed activity involves or
affects resources of cultural or historical significance to the
tribe.'' NOAA has also added Sec. 925.9(k) which states: ``removal, or
attempted removal of any Indian cultural resource or artifact may only
occur with the express written consent of the governing body of the
tribe or tribes to which such resource or artifact pertains, and
certification by the Director that such activities occur in a manner
that minimizes damage to the biological and archeological resources.
Prior to permitting entry into a significant cultural site designated
by a tribal governing body, the Director shall acquire the express
written consent of the governing body of the tribe or tribes to which
such cultural site pertains.'' NOAA will enter into a cooperative
agreement with the tribes and the State of Washington that clarifies
the process by which permits will be granted to conduct research or
salvage operations on historical and cultural resources of tribal
significance.
Comment: Current management of cultural resources is agreed upon
between the Bureau of Indian Affairs (BIA) and the tribes. The BIA
supports the tribes in the management of their cultural resources.
Response: See response to previous comment.
Comment: The regulation as proposed in the DEIS/MP is duplicative
of State law. There already exists state and Federal antiquities acts
to protect coastal archeological and historical sites that occur on or
near the median high tide boundary. The State archeologist already
coordinates archeological matters.
Response: The MPRSA is not duplicative of existing laws protecting
historical and cultural resources. The MPRSA is more comprehensive in
that it provides enforcement authority, including civil penalties, for
the destruction or injury of historical and cultural resources.
The Abandoned Shipwreck Act of 1987 gives states the title to
certain abandoned shipwrecks in state waters. Under the MPRSA, NOAA has
trustee responsibilities for abandoned shipwrecks and other historical
and cultural resources 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 within the Sanctuary are protected, and that the
policies affecting historical and cultural resources in State waters
are consonant with the policies in the Federal waters of the Sanctuary.
Issue: Discharges
Ocean Dumping
Comment: NOAA should not prohibit the use of dredged material
disposal sites off Grays Harbor, Willapa Bay, the Columbia River, or on
the north jetty and breakwater of the Port of La Push.
Response: The Sanctuary boundary does not extend south of Copalis
Beach and excludes ports and harbors. Therefore, the maintenance
activities at La Push and the use of the dredge disposal sites south of
the boundary is not prohibited. In addition, the use of dredged spoil
within the Sanctuary for beach nourishment in connection with harbor
maintenance activities is exempt from the regulatory prohibition.
Comment: No ocean dumping should be allowed in proximity to the
major submarine canyons.
Response: The regulations prohibit ocean dumping within the
Sanctuary, and outside the Sanctuary if the material enters and injures
Sanctuary resources or qualities.
Point Source Discharges
Comment: Prohibit discharges of toxics, plastic, and municipal
garbage and sewage into the marine environment.
Response: The dumping of municipal garbage, toxics and plastics is
prohibited within the Sanctuary by Sanctuary regulations and by
regulations promulgated pursuant to the Act to Prevent Pollution from
Ships (33 U.S.C. 1901 et seq.) and the Marine Plastic Pollution
Research and Control Act of 1987, which implements Annex V of MARPOL
73/78 in the U.S. Point source discharges are allowed provided such
discharge is certified by NOAA in accordance with Sec. 925.10 or
approved by NOAA in accordance with Sec. 925.11. After expiration of
current permits, discharges from municipal treatment plants will be
subject to the review process of Sec. 925.11. At a minimum, secondary
treatment will be required.
Comment: Current regulations are adequate. NOAA has not proven that
the proposed regulations will enhance the recreational or aesthetic
appeal, and water quality.
Response: Current regulations do not protect the area from the
cumulative impacts of various types of discharges, including: (1) Some
ocean dumping; (2) sewage receiving only primary treatment; and (3)
non-point source discharges. NOAA's ocean disposal regulation offers
protection to the offshore environment that does not otherwise exist.
NOAA will work with existing tribal, State and Federal authorities to
ensure that the quality of the water and Sanctuary resources are
maintained.
Comment: Clarify how discharges from drilling and production rigs
may be addressed if oil and gas leasing were to occur in the future.
Response: The regulations prohibit oil and gas exploration,
development, and production activities within the Sanctuary. NOAA will
work with the Environmental Protection Agency (EPA) to ensure that best
available technology is implemented on any drilling rigs located
outside of the Sanctuary to ensure that no discharges enter and injure
Sanctuary resources and qualities.
Comment: Depositing or discharging from any location within the
Sanctuary or from beyond the Sanctuary should be prohibited.
Response: The mandate of the National Marine Sanctuary Program is
to facilitate multiple uses that are compatible with resource
protection. Depositing or discharging most materials within the
boundary of the Sanctuary, or from beyond the boundary of the Sanctuary
if such material subsequently enters the Sanctuary and injures
Sanctuary resources or qualities is prohibited. NOAA will work with
EPA, the tribes and the State of Washington to maintain water quality.
NOAA may require special terms and conditions, including (but not
limited to) improved effluent quality, on EPA permits to ensure
Sanctuary resources and qualities are protected.
Non-Point Source Discharges
Comment: NOAA should not require at a minimum secondary treatment
and sometimes tertiary or more for non-point source pollution. It is
virtually impossible to subject runoff to these levels of treatment.
Response: NOAA does not require such treatment for non-point source
pollution. NOAA will monitor non-point source pollution and work with
those living and working in the coastal watersheds to minimize runoff
into the Sanctuary.
Comment: It should be stated that there is no intent to regulate
forest practices by Sanctuary administrators. There is no research or
evidence which would justify the statement made in the proposed DEIS
that the ``greatest source of non-point discharge is the forest.'' This
statement needs clarification and tree farmers must be assured that
they can continue to grow and harvest trees pursuant to Washington's
Forest Practices Act, one of the most stringent in the country.
Response: NOAA's Strategic Assessment Branch has analyzed existing
watershed data from the National Coastal Pollutant Discharge Inventory
to determine sources of runoff. Summaries of pollution discharges for
total volumes of nitrogen, lead, and all suspended solids combined
indicate that with the exception of suspended solids discharged by
paper mills, the greatest source of sediments discharged into sanctuary
waters is from natural forest runoff.
Despite this evidence, NOAA will not be directly regulating upland
uses. However, NOAA will coordinate with the upland user groups, and
managing agencies to minimize non-point source impacts on Sanctuary
resources.
Comment: The suggestion that excessive erosion from clear cutting
practices is the source of most non-point source pollution from forests
supports the need for further study of this common practice and the
issuance of more stringent controls due to the steep and unstable
slopes and amount of rainfall.
Response: NOAA agrees and will conduct monitoring and research
initiatives in coordination with those living and working in the
watersheds to minimize the impacts from timbering activities.
Discharges Outside the Sanctuary
Comment: Clarify to what extent the ``sphere of influence'' of the
discharge regulation extends, to what degree it may affect coastal
communities including the tribes, and who determines if injury to a
Sanctuary resource has occurred. Would a community such as Ocean Shores
or an Indian tribe face increased water quality regulations or
enforcement? Further, does the discharge prohibition apply to
particulates that are discharged into the air from pulp mills and
subsequently enter the Sanctuary and harm Sanctuary resources and
qualities.
NOAA should not impose additional restrictions, beyond the existing
requirements of the Federal Water Pollution Control Act (FWPA), on the
discharge of effluent and dredge spoils into marine waters. There is no
evidence that additional restrictions on these activities are required
to protect water quality in the proposed sanctuary.
Response: The MPRSA protects Sanctuary resources and qualities
(including water quality) from the impacts of discharges from within
and outside the boundary of a Sanctuary whether airborne or waterborne.
NOAA is responsible for determining injury to Sanctuary resources.
Discharges pursuant to existing permits may be continued subject to the
certification requirements of Sec. 925.10. New permits are subject to
the review process of Sec. 925.11. At a minimum, secondary treatment
will be required for any treatment plants discharging directly into the
Sanctuary. With respect to airborne or waterborne discharges outside
the Sanctuary, NOAA may condition such permits only if it is
established that the discharges are entering the Sanctuary and injuring
Sanctuary resources or qualities. NOAA will work closely with all to
ensure that none is unduly burdened by permitting requirements related
to discharges. NOAA will coordinate with the State's Air Quality Board
and Department of Ecology to monitor air and water quality over and in
the Sanctuary.
Application of Discharge Regulations to Vessel Traffic
Comment: The application of this regulation should prohibit organic
and inorganic discharges from fishing vessels and submarines (including
bilge), aircraft. The prohibition should apply to all naval operations.
Response: The Sanctuary regulations specify the fishing and vessel
related activities exempted from the discharge prohibition
(Sec. 925.5(a)(2)(i)-(iv)). Discharges and deposits from vessels are
prohibited except for specific discharges intended to provide for
traditional fishing activities, such as fish wastes resulting from
traditional fishing operations in the Sanctuary, and for allowed vessel
operations in the Sanctuary, namely biodegradable effluent incidental
to vessel use and generated by approved marine sanitation devices,
water generated by routine vessel operations, and engine exhaust. Such
discharges are determined to be of minimal threat to the Sanctuary and
are important for the safe and effective functioning of fishing and
other vessels. Other discharges from vessel operations are prohibited.
If in the future NOAA determines that increased protection for
Sanctuary resources and qualities from these exempted activities is
warranted, the Sanctuary regulations could be revised.
Comment: Clarify acceptable and unacceptable discharges from
fishing vessels.
Response: See response to previous comment.
Economic Impacts of Discharge Regulations
Comment: Banning the use of approved dredge disposal sites would
impose severe economic impacts on marine navigation and commerce, and
ultimately to the coastal communities.
Response: The boundary of the Sanctuary does not encompass the
approved dredge disposal sites off of Grays Harbor, Willapa Bay, and
the Columbia River. However, no new dredge disposal sites may be
located within the Sanctuary boundary.
Comment: NOAA must examine the economic impacts of the discharge
regulations on existing industries. There are currently 72 identified
dischargers in the study area. It is unclear if the proposed Sanctuary
would impact the continued operation of the pulp mill's NPDES permitted
discharge near Grays Harbor.
Response: The Sanctuary's boundary does not extend south of Copalis
Beach. Therefore, the only discharge regulation that would apply to
dischargers in Grays Harbor would be the prohibition on discharges from
outside the boundary that subsequently enter and injure Sanctuary
resources or qualities. NOAA will need to establish that effluents from
pulp mills are injuring Sanctuary resources or qualities before it
would impose terms and conditions on the pulp mill's NPDES permit. If
this situation were to occur, NOAA would work with the discharger, the
State of Washington, and EPA to minimize the economic impacts of
reducing the impacts.
Issue: Oil and Gas Development
Comment: NOAA's failure to offer as an alternative an outright, no
conditions ban on hydrocarbon development within the Sanctuary is
contrary to NEPA regulations, 40 CFR 1502.14 which states that the
alternatives section is the heart of the environmental impact
statement. NOAA should permanently ban oil and gas exploration,
development, and production activities.
Response: Section 2207 of the Oceans Act of 1992 prohibits oil and
gas exploration, development and production within the Sanctuary. The
Sanctuary regulations repeat this prohibition.
Comment: NOAA should designate a buffer zone based on ocean
currents and local seabed geography to prevent damage from external
mineral operations.
Response: NOAA believes that the Sanctuary is large enough to
buffer the sensitive canyon and coastal ecosystems from negative
impacts of mineral development. Further, NOAA's authority to regulate
discharges from outside the Sanctuary boundary that subsequently enter
and injure Sanctuary resources or qualities provides additional
protection over mineral activities.
Comment: NOAA should commit in the FEIS/MP and Record of Decision
to the preparation of an EIS before lifting the prohibition.
Response: As previously discussed, the Oceans Act of 1992 prohibits
oil and gas explorations, development and production within the
Sanctuary. This prohibition may only be lifted by an Act of Congress.
Comment: The oil companies should be excluded from voicing an
opinion regarding the Sanctuary because this privilege should be
extended only to those who have spent time enjoying the State of
Washington coastline.
Response: The Sanctuary program does not and cannot discriminate
against any individual, agency, or interest group. All individuals have
the right to voice an opinion.
Comment: Has NOAA come across any proposal for offshore wind
generated power?
Response: NOAA is not aware of any proposal for offshore wind
generated power.
Comment: The President's decision to postpone OCS activities off
the coasts of Washington and Oregon until after the year 2,000 should
expire at that time unless affirmatively extended.
Response: Section 2207 of the Oceans Act of 1992 indefinitely bans
oil and gas exploration, development and production within the boundary
of the Sanctuary. These prohibitions could only be lifted by an Act of
Congress.
Contingency Plans
Comment: The Sanctuary should establish a contingency plan in
coordination with existing state and Federal contingency plans. Efforts
should be made to coordinate with the State of Washington Departments
of Wildlife, Fisheries, Ecology, and Natural Resources and pursue data
sharing opportunities.
Response: The FEIS/MP identifies existing oil spill contingency
plans and efforts in the State of Washington to cover the Strait of
Juan de Fuca and Outer Coast. NOAA will coordinate closely with the
existing agencies involved in contingency and emergency response
planning, particularly the U.S. and Canadian Coast Guard and the State
of Washington Office of Marine Safety (OMS). However, NOAA agrees that
the Sanctuary requires its own contingency plan to ensure that
resources are protected during events that threaten the environment. A
prototype Sanctuary Contingency Plan is being tested at the Channel
Islands National Marine Sanctuary. Once implementation experience has
been gained, the plan will be adapted to other sites, including the
Olympic Coast National Marine Sanctuary. To implement successfully an
organized emergency response, NOAA will incorporate state and Federal
legislation as well as local efforts into the Sanctuary Contingency
Plan.
Comment: NOAA needs to provide for better oil spill response
planning.
Response: NOAA is coordinating with the regional response
committees of the OMS to ensure that the equipment is available to
address an emergency that would threaten Sanctuary resources.
Comment: An Oil Spill Response Center should be sited in close
proximity to the Sanctuary to address small spills north of Grays
Harbor where there is currently a lack of oil spill response
capability.
Response: NOAA is promoting this idea in its participation on the
regional response subcommittee whose jurisdiction is the Strait of Juan
de Fuca and the Outer Coast. However, priority will be placed on the
stationing of tugs and barges dedicated to emergency response.
Comment: The tribes should be properly funded to handle resource
damage assessment as well as other activities where an oil spill could
impact their subsistence and ceremonial harvest and cultural values.
Response: The reservations are not within the Sanctuary boundary.
Therefore, the Sanctuary cannot dedicate funds to the Tribes for the
purpose of damage assessment pursuant to a spill of hazardous
materials.
Comment: NOAA should request that the oil industry's Marine Spill
Response Corporation station a tractor/tug response vessel at Neah Bay.
Response: NOAA has made the recommendation to the subcommittee on
emergency response for the Strait of Juan de Fuca and the Outer Coast.
NOAA is actively participating in formulating the recommendation to the
State, and will coordinate with the Makah Tribe in their planning
initiative to expand their marina to plan to accommodate a tug or
emergency response vessel that is of appropriate size to service the
Outer Coast and the Strait of Juan de Fuca.
Comment: NOAA should ensure that drills are conducted for the Clean
Sound Cooperative with outside evaluation.
Response: NOAA intends to hire an operations manager immediately
after designation to address issues related to vessel traffic and
contingency planning. One of the priorities of this position will be to
encourage the Coast Guard to focus on the Sanctuary during its
emergency response drills.
Comment: NOAA should propose the examination of extending unlimited
liability for spills to the shipping companies and the original firms
providing the original source materials involved in the polluting
activities.
Response: The MPRSA only provides NOAA with the authority to
collect $100,000 per day for each violation pursuant to 16 U.S.C.
1437(c)(1), and damages to Sanctuary natural resources pursuant to 16
U.S.C. 1443.
Issue: Sealion Rock
Comment: NOAA should prohibit, or at least condition, the Navy's
practice bombing activities over Sealion Rock due to the impact on
seabirds, depositing of metal objects in the Sanctuary, and because the
military environment does not require such a sensitive area to be used
for such purposes. At the very least, NOAA should prohibit the practice
bombing during the breeding season. Section 7 consultations with the
Department of Commerce and the Department of the Interior should not be
construed as sufficient mitigation because these processes do not
address impacts to non-endangered species.
Response: NOAA agrees that the Navy practice bombing of Sealion
Rock is inconsistent with the goals of the Sanctuary program. Because
the permit under which the Navy conducted its activities over Sealion
Rock was rescinded by the Secretary of the Interior in August, 1993,
NOAA may prohibit outright all bombing activities within the Sanctuary
and has determined to do so. The regulation adopted by NOAA prohibits
all practice bombing and provides that no exemption from the
prohibition will be granted.
Comment: NOAA does not have the authority to prohibit or condition
the Navy's activities.
Response: Because the Navy's authorization from the Secretary of
Interior was rescinded, NOAA now has the authority to not only
condition but also prohibit the Navy's practice bombing activities.
Comment: NOAA should place the Navy's bombing activities within the
scope of regulation to allow future regulation if necessary. To not
list military activities is in conflict with the primary goal of
resource protection.
Response: NOAA has addressed Navy activities in Sec. 925.5(d) of
the regulations.
Comment: NOAA should investigate the history of the Navy's
activities over Sealion Rock to determine if a grandfather clause is
warranted.
Response: The history of the Navy's activities and the permit that
authorized its activities has been outlined in the FEIS/MP. The Navy's
authority to conduct practice bombing activities has been rescinded and
thus consideration of a grandfather clause is irrelevant.
Comment: Clarify how Navy bombing of Sealion Rock at 200 feet is
less disruptive than commercial overflights.
Response: NOAA does not assert that the Navy's low flying
activities are less disruptive than commercial or non-commercial
overflights. NOAA's differing regulations in the DEIS/MP applying to
Navy and non-military overflights resulted from limitations placed on
NOAA by the MPRSA with respect to terminating pre-existing leases and
permits.
Issue: Protection of Treaty Rights
Comment: NOAA's regulations do not formally recognize the Federal
Government's trust responsibility to the coastal Tribes. The
regulations contain no provision which formally requires the Director
to consider and protect tribal interests when ruling on permit
applications to conduct development activities within the Sanctuary. To
address this issue, the following modifications to the Sec. 925.8
should be made:
The Director * * * may issue a permit * * * to conduct an
activity otherwise prohibited by Sec. 925.5(a)(2)-(7), if the
Director finds that the activity will: further research related to
Sanctuary resources: * * * or promote the welfare of any Indian
Tribe adjacent to the Sanctuary. In deciding whether to issue a
permit, the Director shall consider such factors as * * * the
impacts of the activity on adjacent Indian Tribes. Where the
issuance or denial of a permit is requested by the governing body of
an Indian Tribe, the Director shall consider and protect the
interests of the Tribe to the fullest extent practicable in keeping
with the purposes of the Sanctuary and his or her fiduciary duties
to the Tribe * * *
Response: NOAA agrees that the designation of the Olympic Coast
National Marine Sanctuary is subject to the Federal government's
general fiduciary responsibility to the coastal tribes. Accordingly,
NOAA has modified Sec. 925.9(d) of the regulations to incorporate the
recommended language.
Comment: NOAA's regulation prohibiting the taking of marine mammals
and seabirds conflicts with treaty rights to fish and hunt marine
mammals in tribal usual and accustomed fishing grounds.
Response: NOAA recognizes that, given the standard for abrogating
treaty rights enunciated by the Supreme Court in United States v. Dion,
476 U.S. 734 (1985), the provisions of the MPRSA do not abrogate the
coastal Tribes' treaty fishing and hunting rights. However, it is
unclear whether Congress intended the MMPA and the Endangered Species
Act (ESA) to abrogate these rights. Recently, the Makah Tribe has
pursued clarification regarding the applicability of the Marine Mammal
Protection Act (MMPA) and ESA to its treaty rights to hunt whales and
seals. The issue is currently being examined by the tribes and the
National Marine Fisheries Service (NMFS). Given the concerns raised by
the coastal tribes, Sec. 925.5(a)(6) has been revised to read as
follows:
Taking any marine mammal, sea turtle, or seabird in or above the
Sanctuary, except as authorized by the National Marine Fisheries
Service or the United States Fish and Wildlife Service under the
authority of the Marine Mammal Protection Act, as amended (MMPA), 16
U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA),
16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as
amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to any treaty
with an Indian Tribe to which the United States is a party, provided
that the treaty right is exercised in accordance with the MMPA, ESA,
and MBTA, to the extent that they apply.
In addition, Sec. 925.5(a)(8) has been modified similarly. The
revised language recognizes the coastal Tribe's treaty right to hunt
whales and seals. However, the regulation also requires that the right
be exercised in accordance with the provisions of the MMPA, ESA, and
MBTA. If the MMPA, ESA or MBTA is determined to abrogate or otherwise
restrict the Tribe's exercise of its right to hunt whales and seals,
then that determination shall apply to the Tribe's exercise of those
rights within the boundary of the Sanctuary.
Comment: The regulations fail to preserve tribal control of their
cultural heritage. NOAA should amend Sec. 925.5(a)(8) to read as
follows:
Removal or attempted removal of any Indian cultural resource or
artifact, or entry onto a significant cultural site designated by a
Tribal governing body with the concurrence of the Director, except
with the express written consent of the governing body of the Tribe
or Tribes to which such resource, artifact, or cultural site
pertains.
Response: The MPRSA provides NOAA with the authority to control
access to cultural or historical artifacts within the Sanctuary thereby
helping to ensure their preservation. Accordingly, anyone proposing to
remove a cultural or historical resource must apply for and obtain a
Sanctuary permit from NOAA. NOAA also acknowledges the coastal Tribes'
desire to preserve their cultural heritage and, in particular, those
cultural artifacts of tribal significance found within the Sanctuary.
NOAA considers its objective of preserving the historical and cultural
resources of the Sanctuary to be compatible with the coastal Tribes'
desire to preserve their cultural heritage. Accordingly, Sec. 925.9(j)
has been modified and Sec. 925.9(k) has been added to address the
coastal tribe's concerns.
Comment: The regulation prohibiting overflights under 1,000 ft.
except for valid law enforcement purposes conflicts with the treaty
secured rights to access certain reservation lands such as Tatoosh
Island and Ozette, which are only accessible by helicopter in the
winter months, and to conduct aerial timber cruises and engage in
helicopter logging on portions of the reservation abutting the
Sanctuary. Therefore the following amendment to Sec. 925.5(7) is
proposed:
Flying motorized aircraft at less than 1,000 feet above the
Sanctuary within one nautical mile of the coastal boundary of the
Sanctuary and the Flattery Rocks, Quilleute Needles, and Copalis
National Wildlife Refuges, except for valid law enforcement purposes
or where authorized by a governing body of an Indian Tribe to
provide access to reservation lands.
Response: NOAA acknowledges the Tribes' concerns and does not
intend to interfere with tribal rights to access reservation lands.
Also, for the reasons discussed below, the minimum altitude has been
changed to 2000 ft. In order not to interfere with Tribal access to
reservation lands, the prohibition on flying has been changed to read:
Flying motorized aircraft at less than 2,000 feet above the
Sanctuary within one nautical mile of the Flattery Rocks, Quillayute
Needles, or Copalis National Wildlife Refuge, and within one
nautical mile seaward from the coastal boundary of the Sanctuary,
except as necessary for valid law enforcement purposes, for
activities related to tribal timber operations conducted on
reservation lands, or to transport persons or supplies to or from
reservation lands as authorized by a governing body of an Indian
Tribe.
Comment: NOAA should apply the management plan equally to tribal
and non-tribal governmental entities within the adopted boundary
equally.
Response: NOAA is legally bound to recognize treaty secured rights
and has no intention to interfere with these rights. As such, there
will be circumstances in which Sanctuary regulations will apply to
tribal and non-tribal members differently.
Issue: Vessel Traffic
Comment: Route tankers and barges as far away from near-shore reefs
and islands as possible. Clarify what types of vessels can transit
close to shore.
Response: There exists a Cooperative Vessel Traffic Management
System (CVTMS) established and jointly managed by the United States and
Canada. The CVTMS is a mandatory regime and consists of all navigable
waters of the Strait of Juan de Fuca and its offshore approaches,
southern Georgia Strait, the Gulf and San Juan Archipelagos, Rosario
Strait, Boundary Pass, Haro Strait, and Puget Sound, bounded on the
west by longitude 147 deg.W. latitude 48 deg.N., and on the northeast
by a line along 49 deg.N. from Vancouver Island to Semiamoo Bay.
The rules of the CVTMS are intended to enhance safe and expeditious
vessel traffic movement, to prevent groundings and collisions, and to
minimize the risk of property damage and pollution to the marine
environment. The rules apply to:
a. Each vessel of 30 meters or more in length; and
b. Each vessel that is engaged in towing alongside or astern, or in
pushing ahead, one or more objects, other than fishing gear, where:
(1) The combined length of the vessel towing, the towing apparatus,
and the vessel or object towed is 45 meters or more; or
(2) The vessel or object towed is 20 meters or more in overall
length.
Both the Canadian and the United States Coast Guards are studying
methods to improve the CVTMS in the area. Items being studied include
replacement of outdated equipment, elimination of gaps in coverage, and
increasing operator training and assignment length.
The Oil Pollution Act of 1990 (OPA 90) requires the U.S. Coast
Guard to conduct a national Tanker Free Zone Study. This study is
nearing completion and will recommend regulations requiring tank
vessels to remain offshore during coastal transits.
Further, NOAA has recommended to the U.S. Coast Guard that an
International Maritime Organization (IMO) approved ATBA be established
within the proposed Sanctuary boundary. This would request that vessels
transporting hazardous materials remain at least 25 nautical miles
offshore while in the vicinity of Sanctuary waters or until making
their approach to the Strait of Juan de Fuca using the established
CVTMS traffic separation scheme. Although ATBA's are not compulsory for
foreign flag vessels, a maritime state may make such an area compulsory
for domestic vessels transiting the waters under its jurisdiction.
Comment: Clarify ``commercial vessel'' and distinguish between
various sizes, uses, and types of vessels.
Response: ``Commercial vessel'' means any vessel operating in
return for payment or other type of compensation. Clarification between
sizes, uses, and types of vessels would require more space than is
available in this document. Rather than attempt to hold to a general
definition of ``commercial vessel'', reference will be made to specific
types of vessels, i.e., tank vessels, bulk carriers, fishing vessels,
pleasure craft, etc., wherever required.
Comment: The Sanctuary boundary should be published on navigational
charts.
Response: NOAA agrees and will submit the Sanctuary boundary to the
Nautical Charting Division of the National Ocean Service. The boundary
will be delineated on the next update of the appropriate navigational
chart.
Comment: Spill containment and cleanup measures should be part of
appropriate mitigation requirements for vessels operating within the
Sanctuary.
Response: OPA 90 mandates that tank vessel contingency plans be
prepared for a worst-case discharge, and that vessel plans be reviewed
and approved by the U.S. Coast Guard. OPA 90 also stipulates that each
responsible party for a vessel from which oil is discharged, or which
poses the substantial threat of a discharge of oil into or upon the
navigable waters or adjoining shorelines or the exclusive economic
zone, is liable for the removal costs and damages resulting from such
an incident.
Further, Washington State law (title 88 section 46 Revised Code of
Washington) requires the owner or operator of a tank vessel to prepare
and submit an oil spill prevention plan prior to the vessel's entry
into a Washington port. The law also requires that each tank vessel,
cargo vessel of greater than three hundred or more gross tons, or
passenger vessel of greater than three hundred or more gross tons have
a contingency plan for the containment and cleanup of oil spills from
such vessel into the waters of the State.
Comment: NOAA should provide a more complete explanation of how
implementation of each of the regulations would put U.S. shipping
companies at an economic disadvantage in relation to foreign vessels.
Precisely what would be the estimated cost in dollars, time,
inconvenience, and ultimate impact upon U.S. shipping companies.
Response: NOAA is promulgating no regulations that will adversely
affect domestic vessels.
Comment: NOAA should put forth a vessel traffic management plan,
spearheaded by the U.S. Coast Guard, that addresses research needs,
vessel traffic monitoring and communication systems, and future
regulatory alternatives. The management plan should be proactive, and
establish a timetable for considering new vessel traffic regulations in
the future.
Response: NOAA is working with the U.S. Coast Guard, which has the
primary authority for vessel traffic regulation, to determine the need
for additional measures to ensure protection of Sanctuary resources and
qualities. In addition, NOAA will work with the U.S. Army Corps of
Engineers (COE) and the EPA regarding vessel traffic activities
resulting from the transport of dredged material through the Sanctuary
for disposal outside the Sanctuary. These consultations will 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 such risk.
NOAA agrees that an improved vessel traffic monitoring and
communication system along the coast is desirable. OPA 90 requires the
Secretary of Transportation to complete a comprehensive study on the
impact of installation, expansion, or improvement of vessel traffic
servicing systems. NOAA will work with the State of Washington's OMS,
the U.S. Coast Guard, and appropriate public agencies during the
development of these monitoring studies to determine an appropriate
system for the Sanctuary and the need for any additional site-specific
protective measures.
Vessel traffic monitoring and research and coordination on this
subject have been incorporated into the Sanctuary management plan.
Comment: Allow only double-hulled vessels in the Sanctuary.
Response: OPA 90 establishes double hull requirements for tank
vessels. Most tank vessels over 5,000 gross tons will be required to
have double hulls by 2010. 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 have a double hull (or double
containment system if under 5,000 gross tons), while existing vessels
are phased out over a period of years.
As previously stated, the U.S. Coast Guard is completing a study of
a tanker free zone where tank vessels would be required to remain
offshore during coastal transits. Further, a proposal to establish an
ATBA within the Sanctuary boundary has been developed and will be
submitted to the International Maritime Organization (IMO) for approval
at the earliest possible date which, in accordance with IMO's
procedures, is June, 1994. Both actions will serve to ensure that
hazardous material laden vessels will remain an appropriate distance
offshore.
Comment: Require vessels to have a pilot aboard.
Response: Requirements for pilots are set forth in both Federal and
state regulations. NOAA will monitor and review vessel traffic in the
Sanctuary and make recommendations to the appropriate regulatory
agencies, state and Federal, regarding the need for additional pilotage
requirements. Pilotage is currently compulsory for all vessels except
those under enrollment or engaged exclusively in the coasting trade on
the West Coast of the continental United States (including Alaska) and/
or British Columbia. Port Angeles has been designated as the pilotage
station for all vessels enroute to or from the sea.
OPA 90 requires the U.S. Coast Guard to designate U.S. waters where
a second licensed officer must be on the bridge of a coastwise seagoing
tanker over 1,600 gross tons. Under the Ports and Waterways Safety Act,
the U.S. Coast Guard also is proposing to require a second officer on
foreign flag tankers over 1,600 gross tons and on U.S. registered
tankers over 1,600 gross tons.
Comment: Establish a tonnage limit within three nautical miles of
shore except for those making a port call.
Response: All types of vessels and traffic patterns will be
reviewed by NOAA, the U.S. Coast Guard, and the State of Washington OMS
to determine any appropriate action to be taken. In conducting this
review, attention will be paid to vessel type, cargo carried, and
vessel size.
Comment: Require all vessels to have English speaking bridge
personnel.
Response: All vessels required to participate in the Juan de Fuca
region CVTMS are required to make all reports in English.
Comment: Curtail traffic during poor weather conditions.
Response: NOAA will work with the state, U.S. Coast Guard, and
appropriate public agencies to determine the need for further vessel
traffic regulations to specifically address vessel traffic during
adverse weather conditions.
During conditions of vessel congestion, adverse weather, reduced
visibility, or other hazardous circumstances in the area of the Juan de
Fuca Region CVTMS, the Cooperative Vessel Traffic Management Center may
issue directions to control and supervise traffic. They may also
specify times when vessels may enter, move within or through, or depart
from ports, harbors, or other waters of the CVTMS Zone.
Further, the U.S. Coast Guard's Navigation Rules, International and
Inland, speak specifically to the conduct of vessels while at sea. Rule
6 of the International and Inland Steering and Sailing Rules states
that ``Every vessel shall at all times proceed at a safe speed so that
she can take proper and effective action to avoid collision and be
stopped within a distance appropriate to the prevailing circumstances
and conditions.''
Comment: Prohibit engine powered water craft of any type.
Response: A fundamental objective of the sanctuary program is ``to
facilitate, to the extent compatible with the primary objective of
resource protection, all public and private uses of the resources of
these marine areas not prohibited pursuant to other authorities'' (16
U.S.C. 1431(b)(5)). NOAA will consider the threats from all types of
vessels--power driven, sailing, or paddle propelled--as a continuing
analysis of vessel traffic within the sanctuary boundaries.
Comment: Manage the off-loading or exchange of cargo or oil.
Response: No offloading or exchange of oil occurs within the
boundary of the Sanctuary. This activity generally occurs in ports
which are located outside of the Sanctuary boundary. Further, this type
of activity is addressed by both OPA 90 and programs being established
by the recently created Washington State OMS.
Comment: Prohibit shipment of reclaimed spent nuclear fuel from
foreign reactors through the Sanctuary.
Response: As previously noted, NOAA has recommended to the U.S.
Coast Guard that an IMO approved ATBA be established within the
Sanctuary boundary. This would require vessels transporting hazardous
materials to remain at least 25 nautical miles offshore while in the
vicinity of Sanctuary waters or until making their approach to the
Strait of Juan de Fuca using the established CVTMS traffic separation
scheme.
NOAA will also work with the State of Washington's OMS and both the
U.S. and Canadian Coast Guards to be informed of, and alerted to, in a
timely and regular manner, all hazardous cargo carriers transiting near
Sanctuary waters. Further, through participation in regular meetings of
the Washington State Regional Marine Safety Committees and discussions
with the U. S. Coast Guard, NOAA will ensure that contingency plans
adequately address such transport issues.
Comment: Prohibit commercial vessel anchorages within the
Sanctuary, particularly off Makah Bay, except in emergencies.
Response: The use of the Makah Bay anchorage by vessels waiting
either for an available pilot at Port Angeles or instructions from
their home office, has been examined. Currently, its use as a temporary
anchorage has been agreed upon by both the U.S. and Canadian Coast
Guards. This is viewed as a more favorable alternative than having such
vessels continuously underway within, and off the entrances to, the
Strait. Vessels at anchor are subject to MARPOL, U.S. Federal law, and
Sanctuary regulations regarding discharges. The use of this anchorage
is monitored by Tofino Vessel Traffic Service which can also educate
such vessels regarding the Sanctuary and its regulations.
Comment: Clarify NOAA's authority to regulate vessel traffic within
State of Washington waters.
Response: Section 303 of the MPRSA gives NOAA the authority to
promulgate regulations to implement the designation, including
regulations necessary to achieve resource protection.
Comment: The State and Federal government have appropriated $75
million to expand and enhance maritime activity at Grays Harbor through
waterway dredging and port terminal development programs. If vessel
traffic is restricted, one branch of the government would be defeating
the purpose of other parts of the government.
Response: NOAA has studied vessel traffic along the Washington
coast. The result of the analysis was the recommendation for the
previously mentioned ATBA. This proposal, if adopted, would add
approximately 17 nautical miles on a transit from Grays Harbor to the
entrance of the Straits of Juan de Fuca and approximately 21 nautical
miles on a transit from the entrance of the Straits to Grays Harbor. In
comparison to the costs of cleanup, legal fees, liability, fines, loss
of cargo, and vessel and environmental damages, the proposals to
establish the ATBA seem reasonable.
Comment: Double-hulled proposals are not economically sensible in
the foreseeable future.
Response: Congress has mandated (OPA 90) national double hull
requirements for tank vessels.
Issue: Overflights
Comment: Establish the boundary for overflights at the beach rather
than one (1) mile inland.
Response: The boundary for overflights is at the shoreline and not
one (1) mile inland.
Comment: Establish a 2,500 foot minimum flight altitude over the
sanctuary.
Response: To be consonant with current regulations regarding
flights over charted National Park Service Areas, U.S. Fish and
Wildlife Service Areas, and U.S. Forest Service Areas, NOAA is
prohibiting the flying of motorized aircraft at less than 2,000 feet
above the Sanctuary within one nautical mile of the Flattery Rocks,
Quillayute Needles, or Copalis National Wildlife Refuge, and at less
than 2,000 feet above the Sanctuary within one nautical mile seaward
from the coastal boundary of the Sanctuary, except as necessary for
valid law enforcement purposes, for activities related to tribal timber
operations conducted on reservation lands, or to transport persons or
supplies to or from reservation lands as authorized by a governing body
of an Indian Tribe. NOAA will work with the Federal Aviation
Administration (FAA) on how best to reflect this limitation on
aeronautical charts.
Comment: Permit search and rescue at all times by whatever aircraft
is needed to accomplish the task.
Response: The prohibitions set forth in the Sanctuary regulations
do not apply to activities necessary to respond to emergencies
threatening life, property, or the environment pursuant to
Sec. 925.5(c) of the regulations. Thus, in any emergency, search and
rescue aircraft are allowed to perform whatever tasks are required
within the Sanctuary boundary.
Comment: When necessary to bring a research flight into the area
below the Sanctuary prescribed ceiling, regulations should require the
plane's engine be kept at or below a reasonable decibel level as heard
from the ground.
Response: FAA regulations (14 CFR part 36) codify noise standards
for aircraft operating within U.S. airspace. Adherence to these
standards is already required. When research is to be conducted within
the Sanctuary boundary, aircraft operators will be required to obtain a
permit and conduct such research in such a manner so as to minimize
disturbance yet remain within safe aircraft operating parameters.
Issue: Living Resource Extraction
Fishing
Comment: NOAA should not restrict access to fishing grounds or
catch-ability. Crab fishing and razor clam digging must be allowed.
Response: The regulation of fishing is not authorized by the
Designation Document. NOAA has determined that existing fishery
management authorities are adequate to address fishery resource issues.
As with all other fisheries that occur within the Sanctuary, crab
fishing and razor clam digging remain under the regulatory authority of
existing Federal, state, tribal and regional fishery authorities. NOAA
does not view fishing as contrary to the goals of the Sanctuary. The
sanctuary program is by law mandated ``to facilitate to the extent
compatible with the primary objective of resource protection, all
public and private uses of the resources * * * .'' (including fishing)
(16 U.S.C. 1431(b)(5)).
Existing fishery management agencies are primarily concerned with
the regulation and management of fish stocks for a healthy fishery. In
contrast, the National Marine 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 Marine Sanctuary Program is also
concerned about the potential incidental impacts of specific fishery
techniques 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 Olympic Coast, fish
resources are already extensively managed by existing authorities and
NOAA does not envision a fishery management role for the Sanctuary
Program. Accordingly, fishing activities have not been included in the
list of activities in the Designation Document subject to regulation as
part of the Sanctuary regime. However, the Sanctuary Program will
provide research results and recommendations to existing fishery
management agencies in order to enhance the protection of fishery and
other resources within the Sanctuary.
Comment: No additional fisheries management or regulation is needed
in the Sanctuary. Commercial, recreation, and subsistence fishing can
be compatible with sanctuary designation, and the existing regulatory
framework is adequate at this time.
Response: See response to previous comment. The Designation
Document places kelp harvesting within the scope of future regulation
since there is no existing management plan for kelp harvesting.
Comment: Clarify the language associated with commercial fishing
practices near sunken vessels, rocks and reefs in the proposed
sanctuary to insure continuance of historical and customary fishing
practices. Existing Federal and state regulations adequately protect
archeological treasures, man-made reefs, and natural rock and reef
formations. The FEIS should acknowledge and permit prevailing
practices.
Response: Commercial fishing vis-a-vis historical resources is an
exempted activity under the prohibition against disturbance of
historical resources. However, the exemption is only for incidental
disturbance and therefore does not allow deliberate disturbance.
Comment: Fishing should either be regulated, or placed in the scope
of regulation, because there may be a time in the future when fishing
needs to be regulated by the Sanctuary.
Response: NOAA believes that existing authorities are adequate to
regulate fishing. Should the need arise to regulate fishing as part of
the Sanctuary management regime, the Designation Document could be
amended.
Comment: Proposed regulations should result in the gradual
reduction of fishing, aquaculture, kelp harvesting and waterfowl
hunting to insure that no commercial activity threatens the integrity
of any resources in the proposed Sanctuary. Some commenters believed
that the Sanctuary should ban all commercial fishing activities except
Native American fishing activities.
Response: A blanket reduction of resource-use activities across the
Sanctuary could not be imposed without credible evidence that each
resource affected is threatened by a population decrease or stock
failure. Absent such evidence, the Act requires that existing uses be
facilitated to the extent compatible with the primary objective of
resource protection.
Comment: True refugia should be established where all consumptive
uses are prohibited for a period of time.
Response: The determination of whether refugia are established in
the Sanctuary will be done in coordination with the NMFS, PFMC,
Washington Department of Fisheries (WDF), the tribes, environmental
groups, and industry. The Sanctuary Advisory Committee (SAC) will be an
important forum to address this issue. If, in coordination with other
governmental agencies, it is determined that establishment of refugia
is a desirable alternative, NOAA will analyze the alternative through
the preparation of an environmental impact statement/management plan
and solicitation of public input pursuant to the NEPA and the APA.
Comment: Driftnets, trawling, and all dragnet fisheries should be
banned from the proposed Sanctuary as inconsistent with the regulation
prohibiting alteration of, or construction on, the seabed.
Response: The only net gear used in fisheries in the Sanctuary are
trolling gear (for salmon) and trawling gear (for groundfish). The
regulatory prohibition on altering the seabed includes an exception for
incidental disturbance resulting from traditional fishing operations.
NMFS has conducted a limited study of the impact of trawl gear on the
benthos and has not identified any resulting systematic destruction.
However, the regulations could be modified to regulate any activity
that is shown to cause significant disturbance of the seabed. This
reflects adherence to the MPRSA's goals of preserving natural and
human-use qualities of a marine area.
High-seas driftnets, defined as nets greater than 1.5 miles long,
have been banned pursuant to United Nations resolution 46/215. While
gillnets and setnets are currently used in the inland waters of the
State of Washington, they are not used in Sanctuary waters.
Comment: NOAA should facilitate the regulation of resource
extraction within the Sanctuary under a regulatory framework that is
controlled by a single agency.
Response: Regulatory authority over resources and resource
extraction industries is expressly granted by state and Federal
statute. NOAA does not have the primary regulatory authority over
resource extraction. NOAA can act to coordinate the various regulators
and can impose additional regulations, but cannot reassign itself or
other agencies regulatory authority.
Comment: NOAA must clarify and acknowledge all tribal treaty
fishing rights in the FEIS/MP, and the interaction of Sanctuary
regulations with the right of tribes to fish in their Usual and
Accustomed fishing areas.
Response: This issue is clarified in the Designation Document and
in Part II (under Socio-Demographic profile and Land Use). In addition,
the coastal tribe's treaty rights are acknowledged in several sections
of the regulations.
Comment: The entire study area must be considered as a ``fishing
area'' since fish migrate along the entire Washington coast.
Response: NOAA recognizes that fish ``know no boundaries in the
sea.'' The fishing areas identified in the FEIS/MP only represent known
locations where certain fishery activity is concentrated. The fishing
areas displayed in the FEIS/MP are not related to regulatory
jurisdiction in any way. They are simplified visual aids to complement
the discussion of resources off the coast of Washington.
Aquaculture
Comment: Clarify NOAA's intention to regulate, condition, or
prohibit aquaculture activities throughout the Sanctuary and adjacent
to Indian reservations.
Response: The Sanctuary regulations do not directly prohibit
aquaculture operations within the Sanctuary boundary. However,
discharge of matter into the Sanctuary, or alteration of or
construction on the seabed in connection with aquaculture activities
are prohibited. It is unlikely that permits would be granted for
aquaculture activities in the Sanctuary that violate these
prohibitions. This determination is based upon U.S. Army Corps of
Engineers (COE) guidance related to permits for fish pen mariculture
operations, which prohibits fish farms in Federal natural resource
areas, such as national seashores, wilderness areas, wildlife refuges,
parks or other areas designated for similar purposes (e.g., national
marine sanctuaries).
Comment: NOAA should change the proposed regulation governing
alteration of or construction on the seabed to ``maintenance and
development of approved aquaculture operations'', and strike ``existing
prior to the effective date of these regulations.'' Eliminating future
aquaculture development off the Olympic Coast would preclude
opportunities for both private shellfish and finfish production and for
public enhancement. Technology is being developed which would result in
minimal environmental imbalance, and would afford employment for
regional communities.
Response: See response to previous comment.
Comment: The Sanctuary should not regulate aquaculture activities
because there are sufficient regulations in place.
Response: See response to previous comment.
Comment: The Sanctuary should provide mutually agreed upon
requirements for aquaculture activities among the oyster growers of
Willapa Bay.
Response: The boundary of the Sanctuary does not include Willapa
Bay.
Comment: The discussion in the FEIS/MP on the impacts of
aquaculture needs to be expanded and the proposal to not regulate
aquaculture in the Sanctuary should be re-assessed. The FEIS/MP needs
to address the use of drugs in farm-raised fish.
Response: The discussion of aquaculture within the Sanctuary is
intended only to evaluate the current status of the industry in the
study area--it is not intended to measure aggregate impacts. The
request for expanded discussion of resources does not identify specific
issues of discussion. A reassessment of aquaculture vis-a-vis the
Sanctuary reveals that the industry is adequately regulated by existing
state and Federal requirements. However, any discharges from such
operations into the Sanctuary would be prohibited. The Sanctuary has no
jurisdiction over the use of drugs in aquaculture--such determinations
are under the purview of the Washington State Department of Health
(WDH) and the Federal Food and Drug Administration (FDA).
Comment: All aquaculture should be banned from within the
Sanctuary.
Response: See responses to previous comments regarding aquaculture.
Comment: Kelp harvesting should be banned or regulated within the
Sanctuary.
Response: At present there is no kelp harvesting within the
Sanctuary. While kelp harvesting was proposed to be included within the
scope of activities listed in the Designation Document as subject to
potential regulation under the Sanctuary Program, the final Designation
Document does not list kelp harvesting. Kelp is only found within the
state waters of the Sanctuary. Because the Washington Department of
Natural Resources (DNR) has promulgated regulations for the management
of kelp which should adequately protect the kelp, NOAA does not believe
it necessary to list kelp as being subject to potential Sanctuary
Program regulation. If the state regulations do not adequately protect
the kelp within the Sanctuary, the Sanctuary Designation Document could
be amended following the same procedures used to promulgate this
Designation Document to authorize the regulation of kelp.
Issue: Marine Mammals, Sea Turtles and Seabirds
Comment: Clarify ``takings''. The prohibition on the taking of
marine mammals and seabirds within the Sanctuary is redundant with the
ESA, the MMPA and the MBTA, and what further impact it will have on the
fishing community.
Response: ``Taking'' is defined in section 925.3 of the regulations
to mean: (1) For any marine mammal, sea turtle or seabird listed as
either endangered or threatened pursuant to the ESA to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or
to attempt to engage in any such conduct and, (2) for any other marine
mammal, sea turtle, or seabird, the term means to harass, hunt,
capture, kill, collect or injure, or to attempt to engage in any such
conduct. While marine mammals, seabirds and endangered and threatened
species are protected under the MMPA, ESA and MBTA, 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.)
Section 307 of the MPRSA allows NOAA to assess civil penalties as
high as $100,000 for each violation. In addition, monies collected
under the MPRSA are available for use by the National Marine Sanctuary
Program.
Comment: The MBTA would not allow any taking of migratory birds in
the sanctuary, thus providing even stronger prohibition than sanctuary
status can provide.
Response: See above response. Section 925.5(a)(6) of the Sanctuary
regulations prohibits the taking of migratory birds within the
Sanctuary. Including a prohibition on ``taking'' marine birds in the
Sanctuary regulations allows such violations to be subject to the civil
penalties authorized by the MPRSA which far exceed those authorized by
the MBTA.
Comment: Prohibit all takings of marine mammals and seabirds,
regardless of military or fishing exemptions.
Response: Section 925.5(a)(6) of the Sanctuary regulations
prohibits the taking of marine mammals and seabirds in or above the
Sanctuary except as authorized by the NMFS or the United States Fish
and Wildlife Service under the authority of the MMPA, as amended, 16
U.S.C. 1361 et seq., the ESA, as amended, 16 U.S.C. 1531 et seq., and
the MBTA, as amended, 16 U.S.C. 703 et seq., or pursuant to any treaty
with an Indian tribe to which the United States is a party, provided
that the treaty right is exercised in accordance with the MMPA, ESA,
and MBTA, to the extent that they apply. Exemptions include a limited
five-year incidental take of marine mammals provided by interim
regulations promulgated pursuant to the MMPA, which are in effect until
October, 1993. The ESA also has a limited incidental take exemption.
See 16 U.S.C. section 1539(a)(2)B(i). NMFS, in conjunction with
environmental groups and the fishing industry, is developing a
permanent management regime to be implemented upon expiration of the
MMPA interim regulations.
If in the future NOAA determines that the existing regulations
promulgated under MMPA, ESA, MBTA or any other state or Federal statute
are not adequate to ensure the coordinated and comprehensive management
of marine mammals and seabirds, changes to the Sanctuary regulations
would be undertaken in accordance with the requirements of the MPRSA,
NEPA and APA.
Comment: Exclude from [takings] prohibition birds considered game.
Response: The only birds Sec. 925.5(a)(6) prohibits the taking of
are seabirds--seabirds are not considered game species.
Comment: Section 925.5(a)(6) of the proposed regulations would
prohibit the taking of marine mammals or seabirds unless affirmatively
permitted by regulations promulgated under authority of the ESA, MMPA,
or MBTA. Because these regulations do not expressly permit any takings
by treaty Indians, the proposed sanctuary regulations would effectively
prohibit the Makah Tribe from exercising their treaty rights to take
marine mammals. The proposed regulations would also hinder the tribe's
ability to exercise its fishing rights by precluding fisheries which
result in the incidental taking of marine mammals and seabirds.
The DEIS/MP offers no conservation justification for imposing
restrictions on the taking of marine mammals and seabirds which go
beyond the restrictions imposed by the ESA and MMPA. The DEIS/MP
concedes that the purpose of the proposed sanctuary regulations is not
to protect particular species from extinction. According to the DEIS,
the purpose of these additional prohibitions in the proposed
regulations is to ``extend protection for sanctuary resources on an
environmentally holistic basis.'' This goal does not permit
infringement of treaty rights. Therefore, the regulations should be
amended by adding ``or in accordance with any treaty to which the
United States is a party.''
Response: The regulatory prohibitions do not abrogate or obstruct
any rights under an existing treaty. The regulations have been changed
by adding ``or pursuant to any treaty with an Indian tribe to which the
United States is a party, provided that the treaty right is exercised
in accordance with the MMPA, ESA and MBTA, to the extent that they
apply.'' The treaty between the Makah Tribe and the United States
explicitly assures the ``right of taking fish and of whaling or sealing
at usual accustomed grounds and stations.'' (Article 4, Treaty of Neah
Bay, 1855).
Incidental takes of marine mammals can legally occur under permit
and exemption provisions of the MMPA. Currently, Washington coastal
tribes apply for and receive exemption certificates from NMFS for the
incidental taking of marine mammals during fishing. Fees for this
exemption are waived for tribes.
Further, tribes cannot be denied entry into any fishery based on
the likelihood or occurrence of seabird or marine mammal takings.
Comment: Change the wording of the regulation to read ``as
authorized or permitted by NMFS or [the U.S. Fish and Wildlife Service]
USFWS under the authority of the MMPA and ESA.'' NMFS suggests that the
preamble and/or regulations clarify that Sanctuary permits will not be
required for activities authorized or permitted by NMFS or USFWS under
MMPA or ESA. Such clarification would relieve many concerns over the
possibility of overlapping and potentially duplicative permitting
requirements.
Response: NOAA has amended the regulation by adding ``as authorized
by the National Marine Fisheries Service or the United States Fish and
Wildlife Service under the authority of the Marine Mammal Protection
Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species
Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird
Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq. * * *.'' The
inclusion of ``as authorized or permitted'' is viewed by NOAA as
redundant.
Issue: Sanctuary Administration
Regulations/Permits
Comment: NOAA should use economic incentives rather than
regulations to ensure that activities do not impact resources.
Response: NOAA does not have sufficient authority to provide
economic incentives to ensure that activities do not impact Sanctuary
resources. Even regulations, which include economic disincentives such
as monetary penalties, are not sufficient to ensure that any activity
does not impact resources.
Comment: Clarify the statement: ``When a conflict with a sanctuary
regulation related to specific [non-sanctuary] regulations occurs, the
one more protective of sanctuary resources will prevail.'' NOAA
regulations should not override those of the local jurisdictions. NOAA
needs to clarify:
(1) The application of this policy to fishing;
(2) Types of conflicts the statement applies to;
(3) Who determines whether a conflict exists; and
(4) The process for resolving a conflict.
Response: NOAA agrees that the statement as written in the DEIS/MP
is unclear. Accordingly, the statement has been deleted in the FEIS/MP.
Essentially, the statement meant that if two regulations exist covering
an activity in the Sanctuary, one promulgated by NOAA under the MPRSA
authority and the other by another agency under a different statute,
compliance with the less restrictive regulation will not relieve the
obligation to comply with the other more restrictive one.
Comment: NOAA should follow the guidelines of NEPA when proposing
any change in regulations that are listed in the scope of regulations.
This is especially applicable to vessel traffic and discharge
regulations. Also, clarification is needed on the rulemaking and
amendment processes.
Response: Listing activities in the scope of regulation reflects
that the issues and alternatives were addressed in the FEIS/MP, public
hearings were held, and public comments were solicited regarding the
activities. If NOAA later proposes the regulation of an activity listed
in the scope of regulations in the Designation Document but not
regulated at the time of Sanctuary designation, NOAA will request
public comments on the proposal. When NOAA plans to amend a rule that
has been promulgated, an analysis of the issues, affected environment,
alternatives and consequences will be completed and public comments
solicited. NOAA will then modify the proposal if necessary and respond
to public comments when taking the final action.
Comment: A procedure must be established to disagree with
management and issue an appeal if permits to conduct research are
denied.
Response: Section 925.12 of the Sanctuary regulations set forth the
procedures for appealing denials of Sanctuary permits. The appeal
process involves a written statement by the appellant to the Assistant
Administrator of NOAA. The Assistant Administrator may conduct a
hearing on the appeal.
Comment: Clarify the procedure for obtaining permits for low-flying
aircraft engaged in ongoing species monitoring studies and damage
assessment studies in response to an incident such as an oil spill.
Activities authorized by the NMFS and USFWS should not require a
Sanctuary permit because the requirements for permits would be
duplicative.
Response: All flights engaged in monitoring or research activities
that fly below 2,000 feet are required to obtain a Sanctuary permit,
or, if the activity is already pursuant to a permit, to have that
permit certified. Permits are not required for overflights necessary to
respond to emergencies threatening life, property or the environment.
Comment: NOAA should not grandfather existing uses if otherwise
prohibited by sanctuary regulations.
Response: Section 304(c)(1)(B) of the MPRSA specifies that NOAA may
not terminate any valid lease, permit, license, or right of subsistence
use or of access, if the lease, permit, license, or right ``is in
existence on the date of designation of any national marine sanctuary *
* *.''
Comment: Treaty secured rights should not require sanctuary
certification. Further, NOAA should obligate federal regulators to
consider and protect tribal interests when issuing permits which may
affect those interests.
Response: Treaty secured rights do not require certification by the
Sanctuary program pursuant to Sec. 925.5(g). NOAA agrees that pursuant
to its trust responsibility to the tribes, it should consider and
protect tribal interests when issuing permits. Therefore, Secs. 925.9
and 925.11 have been modified accordingly. While NOAA as a trustee
urges all other Federal agencies to consider and protect tribal
interests, it does not have the legal authority to require other
Federal agencies to consider and protect tribal interests when issuing
permits pursuant to other regulatory authorities.
Comment: The regulations, exemptions and authority to place
conditions on existing permitted activities are unclear.
Response: Section 304(c)(2) of the MPRSA provides NOAA with the
right to regulate the exercise of a lease, permit, license, or right of
subsistence use or of access existing on the effective date of
Sanctuary designation.
Comment: Sanctuary management should be formally coordinated with
tribal regulatory and law enforcement authorities through cooperative
agreements.
Response: Cooperative agreements will be developed as necessary
between NOAA and the tribes regarding regulatory and law enforcement
activities.
Comment: The Sanctuary should offer increased enforcement which
should be conducted by Sanctuary personnel rather than the U.S. Coast
Guard. Clarify the enforcement procedures.
Response: There will be enforcement of Sanctuary regulations
through cooperative agreements with the U.S. Coast Guard, NMFS, WDF,
the coastal tribes, USFWS, and the National Park Service (NPS).
Considering fiscal constraints, level of use, and availability of
enforcement personnel working in the field already, NOAA has determined
that it is not a high immediate priority to hire Sanctuary enforcement
personnel. The Sanctuary must first become fully staffed and
operational, and a determination must be made whether additional
enforcement personnel are needed. The enforcement procedures will be
determined pursuant to the cooperative agreements that are established.
Comment: The broad scope of the discharge prohibition will require
a well-coordinated enforcement operation to monitor all discharge and
disposal activities from sources on land as well as in offshore,
coastal and inland waters over large areas outside of the Sanctuary
boundary. It may be impossible to determine the origin of discharges or
deposits found in the Sanctuary after the dumping activity has
occurred.
Response: The prohibition on discharges from outside the boundary
relates to discharges that enter and injure Sanctuary resources. NOAA
must establish that discharges not only enter, but injure the resources
before enforcement actions will be taken. It will, therefore be
desirable for NOAA to undertake a comprehensive monitoring program by
which it can determine ecosystem health and use impacts.
Comment: NOAA should impose unlimited liability for spills extended
to shipping companies and firms providing original source materials
involved in polluting activities.
Response: NOAA is permitted to seek penalties of up to $100,000 per
day for a violation pursuant to section 307(c)(1) of the MPRSA (16
U.S.C. 1437(c)(1)), and for natural resource damages pursuant to
section 312 of the MPRSA (16 U.S.C. 1443).
Transboundary Coordination
Comment: NOAA should coordinate with other Federal and Canadian
authorities to regulate vessel traffic, reduce the risk of oil spills,
and eliminate oil and gas drilling in Canadian waters adjacent to the
proposed sanctuary. NOAA should encourage an adjacent sanctuary along
the west coast of Vancouver Island.
Response: NOAA agrees and is working with the Canadian Coast Guard,
the U.S. Coast Guard and the Washington OMS to reduce the risk of oil
spills. The regulation of vessel traffic will currently remain with the
U.S. and Canadian Coast Guards and the OMS. NOAA will support any
Canadian initiative to designate a marine protected area in Canadian
waters on the Pacific Coast.
Beach Management Policies
Comment: NOAA should grandfather in the existing beach management
policies including allowable beach driving activities.
Response: The boundary of the Sanctuary does not encompass beaches
where beach driving is permitted.
Advisory Committee/Decision Making
Comment: NOAA and the State of Washington should work together to
determine the composition of the Sanctuary Advisory Committee (SAC).
The SAC should include representatives from private landowners, local
industry, the county and tribes. The SAC should be based at the local
level to oversee operations and help maintain strong local input.
Response: NOAA will work with local user and interest groups and
state and local governments to obtain broad representation on the SAC.
The law limits the SAC to no more than 15 members.
Comment: The SAC should have the power to direct the Sanctuary
manger and set priorities for funding. The SAC decisions should be
binding. If the decisions are not binding, then the manager should at
least provide a rationale for any actions taken which are directly
contrary to the recommendations of the SAC.
Response: The SAC recommendations to the manager will be
instrumental in guiding the manager with respect to prioritizing
actions. If the manager chooses not to pursue the recommendations of
the SAC, a rationale will be provided to the members of the SAC.
Comment: One of the first tasks of the SAC should be to review and
update the State of Washington's coastal zone management program to
ensure consistency with the Sanctuary management plan. The Sanctuary
management plan goals and objectives should also be reviewed.
Response: Prior to designation, the State of Washington will review
the FEIS/MP as part of its consistency determination as it relates to
Washington's approved coastal zone management program. The WDOE has
jurisdiction for the Shoreline Management Act. The SAC will not share
that jurisdiction, rather, the SAC will be responsible for reviewing
the Sanctuary management plan goals and objectives. The SAC's first
priority will be to help determine the five-year Sanctuary operating
plan establishing priorities for education, research, monitoring,
facilities siting and administration.
Miscellaneous
Comment: Firearms should be controlled or banned within the
Sanctuary.
Response: Possession and use of firearms is regulated by State law
for public safety purposes. The primary purpose of Sanctuary
designation is resource protection.
Management Alternatives/Strategies
Comment: The administrative models being discussed in the Northwest
Straits proposal should be considered.
Response: The administrative model identifying NOAA as the lead
agency in managing the sanctuary with guidance and assistance from the
SAC (which will represent State and local interests) will be
implemented in the Olympic Coast National Marine Sanctuary. The
administrative model which involves joint administration between NOAA
and the State of Washington was not considered for the Olympic Coast
National Marine Sanctuary because the Sanctuary is predominately in
Federal waters. One model suggested for the proposed Northwest Straits
National Marine Sanctuary focuses on joint administration because the
Sanctuary would be located entirely within State waters. NOAA will work
closely with the state and counties and other Federal agencies in the
administration of the Olympic Coast National Marine Sanctuary.
Comment: The management plan needs to account for tribal
sovereignty and jurisdiction with respect to cultural resources, law
enforcement and research practices. NOAA needs to recognize the need to
coordinate with each tribal entity in the same manner as with the state
and its management agencies.
Response: NOAA acknowledges the importance of tribal sovereignty.
Nothing in the designation will impact the treaty rights of the coastal
tribes. NOAA will consult closely with the tribes on any action that
may potentially impact tribal rights or interests.
Comment: NOAA should choose management plan alternative 1 which
proposes to gradually phase in program activities and staffing. Staff
could be co-located with another Federal agency in Port Angeles, with
satellite sites in Klaloch or La Push. National concerns with fiscal
restraint support this choice.
Some commenters supported management plan alternative 2 which
proposes to set up the sanctuary headquarters and immediately provide
full-staffing. Sanctuary headquarters should be located on the coast.
The former Makah Air Force Station is one possible location.
Response: NOAA is experiencing the fiscal constraints that all
Federal programs are experiencing. NOAA proposes to balance the needs
for resource protection and fiscal restraint by phasing in staffing and
maximizing cooperative relationships with other agencies and
jurisdictions working in the area (e.g., NPS, U.S. Coast Guard, the
tribes, and the USFWS) to implement the management plan. The Sanctuary
manager will have an office on the Olympic Coast with administrative
support facilities in Seattle.
Comment: Implementation of the final management plan must be
adequately funded in order to prevent pollution and resource damage.
Response: The level of funding for the first year after Sanctuary
designation will depend upon the Sanctuary Program's funding which is
authorized and appropriated by Act of Congress. However, the reality of
the program's funding situation will require the manager and SAC to
identify alternative sources of funding for Sanctuary programs.
Comment: A volunteer program, coordinated by a full-time volunteer
coordinator, should be established to assist in implementation of the
management plan.
Response: NOAA agrees that the establishment of a volunteer program
can assist in implementation of the management plan. The SAC will be
influential in determining the priority of hiring a volunteer
coordinator.
Comment: The management alternatives should more accurately
describe NOAA's comprehensive planning as implemented through a
combination of legal management authority over certain specific
Sanctuary activities and advisory coordination with other entities
managing the remaining essential components.
Response: NOAA agrees. The FEIS/MP outlines the regulations which
NOAA is promulgating. The FEIS/MP also outlines the role of the SAC,
whose composition is aimed at enhancing the coordination with other
entities with management jurisdiction in the Sanctuary.
Comment: The Sanctuary manager should have a great deal of
responsibility for setting the Sanctuary budget, as well as assigning
funds to local governments for assistance in implementing management
plans.
Response: The Sanctuary manager will have primary responsibility
for recommending the Sanctuary budget to headquarters. The Sanctuaries
and Reserves Division has responsibility for the entire National Marine
Sanctuary Program budget, and will work with the site manager to
develop the annual program budget. The manager has the discretion to
earmark funds to local governments or groups to implement Sanctuary
programs.
Comment: Zoning plans should be implemented which accommodate the
varying resource management needs within the Sanctuary. Some zoning
examples include allowing for the needs of ports to the south,
designating areas which would be closed to all consumptive uses on a
rotating basis, and zoning specific areas within the sanctuary for the
sole purposes of research, recreational use, commercial use and no use.
Response: Zoning is not anticipated as part of the FEIS/MP for the
Sanctuary. If NOAA, in consultation with the SAC, believes that zoning
would better meet the needs of the program, the management plan and
regulations can be amended in accordance with the requirements of the
MPRSA, the NEPA and the APA.
Research/Education Protocol
Comment: Research results and data should be shared through
existing databases with Federal and state agencies and tribes. The
sharing of data should be formalized through cooperative agreements.
Response: NOAA agrees that research results and data should be
shared and will pursue appropriate cooperative agreements to ensure
this coordination.
Comment: It is unnecessary to severely restrict or eliminate
activities such as fishing, commercial vessel activity, dredging and
aircraft operation in order to carry out the Sanctuary goals of
promoting research and public education.
Response: The primary goal of sanctuary designation is the
comprehensive long-term protection of marine resources. Some
restrictions are necessary to accomplish this goal. Of the above
activities, only dredging is being eliminated within the Sanctuary
boundary. Research and education provide additional means to promote
the goal of marine resource protection.
Comment: Geophysical exploration should not be prohibited, as the
information gathered from this research can benefit coastal communities
and academic institutions.
Response: NOAA's emphasis on research within the Sanctuary allows
for research which may involve an otherwise prohibited activity (such
as alteration of or construction on the seabed) as long as researchers
obtain a research permit pursuant to Sec. 925.9 of the Sanctuary
regulations. NOAA will determine the environmental consequences of the
proposed research, including short and long term effects on marine
biota (such as noise which may interfere with cetacean communication)
in deciding whether to issue a permit.
Comment: The research program should stress applied research such
as research which can facilitate fisheries management, provide
information on long-term environmental trends, and provide links
between the marine systems and the adjacent terrestrial systems.
Providing research results to decision makers at the various
governmental levels would be an important link in addressing marine
resource problems.
Response: NOAA agrees and has clarified this point in the research
section of the management plan.
Comment: Criteria for acceptable research within the Sanctuary
should be established prior to formal designation of the Sanctuary. The
criteria should be used in review of research permit applications, and
an appeal process should be established in the case of research permit
application denial.
Response: Research permit applications will be reviewed on a case-
by-case basis and evaluated to determine the potential short and long
term impacts of the proposed activities. In addition, Sec. 925.12 of
the regulations sets forth the procedures for appealing to the
Assistant Administrator the denial of a research permit.
Comment: NOAA should conduct research into the effects of fishing
activities on the entire marine system. Fish stocks, species abundance,
and monitoring information should be presented to the PFMC.
Response: The National Ocean Service (which includes the
Sanctuaries and Reserves Division) and the NMFS have entered into a
Memorandum of Understanding outlining the working relationship between
the Sanctuary Program and the NMFS. The PFMC will be involved in this
agreement, through its relationship with the NMFS. Research which
benefits the overall goal of resource protection is addressed within
this agreement by highlighting the need for interagency coordination,
research and monitoring.
Comment: The benefits of sanctuary designation to the fishing
community and others should be clearly articulated. Additionally,
connections between the regulations and resource protection should be
integrated in the education plan (e.g., establishing warning signs at
popular access sites to alert boaters and hikers to the effect of
disturbance of pelagic birds and marine mammals.)
Response: NOAA agrees and has clarified the education goals in the
Sanctuary management plan. NOAA has articulated the benefits of the
Sanctuary program for the fishing community. NOAA will coordinate with
the USFWS and the NPS to post warning signs around critical marine bird
and mammal habitat.
Comment: NOAA should provide for increased education and
interpretation of the shoreline through a variety of media. Educational
materials and outreach programs should be developed by pre-existing
facilities and organizations on the Olympic Peninsula.
Response: Sanctuary designation will provide for increased
education and interpretation of the entire Sanctuary ecosystem.
Education materials and outreach programs will be developed in
cooperation with existing Federal, tribal, state and local entities.
Issue: Informational Amendments of the DEIS/MP
Biological Amendments
Comment: The discussion of the neretic and shelf edge environments
in the DEIS/MP needs to be expanded. The resource assessment must
stress the biological richness of the area.
Response: The resource assessment describing the ecosystem of the
Sanctuary study area has been expanded in the FEIS/MP.
Comment: Biological resources need to be discussed in terms of
ecosystem interactions and not single species descriptions.
Response: NOAA has expanded the discussion to include a description
of the study area from an ecosystem perspective.
Socioeconomic
Comment: The FEIS/MP must contain a socioeconomic impact study of
the regulations on the affected coastal communities and Tribes. Failure
to consider and mitigate these impacts violates the NEPA and Federal
Trust responsibility to Indians.
Response: An economic analysis has been included within the FEIS/
MP. NOAA is not promulgating regulations that will unduly burden the
tribes. The regulations have provisions that recognize treaty secured
rights. In addition, NOAA will consult with the Tribes when considering
permits affecting proposed development activities in the Sanctuary.
NOAA believes that the regulations do not conflict with the economic
interests of the Tribes since the regulations offer increased
protection for those natural resources critical to the tribal economy.
Comment: The Federal government should investigate the possibility
of tax breaks to offset economic impacts of the management plan.
Response: NOAA's actions do not add economic burdens to the area.
The issue of tax breaks should be addressed to an individual's
representatives in Congress. NOAA does not have the legislative
authority to address tax laws.
Supplemental Draft Environmental Impact Statement
Comment: NOAA should submit a supplemental Draft Environmental
Impact Statement for the following reasons: (1) The DEIS/MP lacks a
satisfactory examination of the socioeconomic impacts of the
regulations on the coastal communities; (2) the DEIS/MP contains
erroneous information related to port activities in Grays Harbor; (3)
some information is missing, outdated, or inaccurate; (4) inadequate
definition of the unique environment deserving protection that is
identified by the SEL.
Response: NOAA has determined that the matters for which an SEIS
has been requested can be addressed in the FEIS/MP. The FEIS/MP
addresses the socioeconomic impacts of regulations that could
potentially affect the coastal communities in the alternatives and
consequences section. Further, the vessel traffic section has been
amended substantially to provide a detailed description of the
significance of vessel traffic to the coastal communities.
Additionally, the description of the marine environment under
consideration has been expanded greatly.
Management
Comment: NOAA needs to address or recognize a number of current
local and state regulatory controls in place within the shoreline
areas.
Response: NOAA has addressed local and state regulatory controls
within the shoreline areas. These controls are listed in appendix J.
The following sets forth the text of the Designation Document for
the Olympic Coast National Marine Sanctuary.
Designation Document for the Olympic Coast National Marine
Sanctuary
Under the authority of Title III of the Marine Protection,
Research, and Sanctuaries Act of 1972, as amended (the ``Act''), 16
U.S.C. 1431 et seq., the waters off the Olympic Coast of Washington
State including the U.S. portion of the Strait of Juan de Fuca west of
Koitlah Point, and the submerged lands thereunder, as described in
Article II, are hereby designated as the Olympic Coast National Marine
Sanctuary for the purposes of protecting and managing the conservation,
ecological, recreational, research, educational, historical and
aesthetic resources and qualities of the area.
Article I. Effect of Designation
The Act authorizes the issuance of such final regulations as are
necessary and reasonable to implement the designation, including
managing and protecting the conservation, recreational, ecological,
historical, research, educational, and aesthetic resources and
qualities of the Olympic Coast National Marine Sanctuary. Section 1 of
Article IV of this Designation Document lists activities that either
will be regulated on the effective date of designation or may have to
be regulated at some later date in order to protect Sanctuary resources
and qualities. Listing does not necessarily mean that a type of
activity will be regulated; however, if an activity is not listed, it
may not be regulated, except on an emergency basis, unless section 1 of
Article IV is amended to include the type of activity by the same
procedures by which the original designation was made.
Article II. Description of the Sanctuary Area
The Olympic Coast National Marine Sanctuary boundary encompasses
approximately 2500 square nautical miles (approximately 8577 sq.
kilometers) of coastal and ocean waters, and the submerged lands
thereunder, off the central and northern coast of the State of
Washington. The Sanctuary boundary extends from Koitlah Point due north
to the United States/Canada international boundary seaward to the 100
fathom isobath. The seaward boundary of the Sanctuary approximates the
100 fathom isobath in a southerly direction from the U.S./Canada
international boundary to a point due west of the Copalis River,
cutting across the heads of Nitnat, Juan de Fuca, and Quinault Canyons.
The shoreward boundary of the Sanctuary is the mean lower low water
line when adjacent to Indian reservations and State and county lands.
When adjacent to Federally managed lands, the coastal boundary extends
to the mean higher high water line. The coastal boundary cuts across
the mouths of all rivers and streams. The precise boundary of the
Sanctuary is set forth in Appendix A of this Designation Document.
Article III. Characteristics of the Sanctuary Area That Give It
Particular Value
The Sanctuary is a highly productive, nearly pristine ocean and
coastal environment that is important to the continued survival of
several ecologically and commercially important species of fish,
seabirds, and marine mammals. Its rugged and undeveloped coastline
makes the region one of the more dramatic natural wonders of the
coastal United States, paralleling the majestic splendor of such
terrestrial counterparts as Yosemite National Park and the Grand
Tetons. The region's high biological productivity is fueled by seasonal
enhanced upwelling along the edge of the continental shelf, especially
at submarine canyons, during periods of high solar radiation.
The diversity of habitats that make up the Sanctuary support a
great variety of biological communities. This unusually large range of
habitat types include: Offshore islands and rocks; some of the most
diverse kelp beds in the world; intertidal pools; erosional features
such as rocky headlands, seastacks, and arches; interspersed exposed
beaches and protected bays; submarine canyons and ridges; the
continental shelf, including a broad shallow plateau extending from the
mouth of the Juan de Fuca canyon; and continental slope environments.
The numerous seastacks and rocky outcrops along the Sanctuary
shoreline, coupled with a large tidal range and wave splash zone,
support some of the most diverse and complex intertidal zones in the
United States.
The Sanctuary provides an essential habitat for a wide variety of
marine mammals and birds, and is of particular interest due to the
presence of endangered and threatened species that live or migrate
through the region. Twenty seven species of marine mammals are reported
to breed, rest within, or migrate offshore of the Olympic Peninsula. Of
particular interest is the migration route of the endangered California
gray whale, the threatened northern sea lion, the occasional presence
of the endangered right, fin, sei, blue, humpback, and sperm whales,
and the reintroduced resident population of sea otters.
In addition, the seabird colonies of Washington's outer coast are
among the largest in the continental United States and include a number
of species listed as endangered or threatened including the short-
tailed albatross, peregrine falcon, brown pelican, Aleutian Canada
goose, marbled murrelet, and one of the largest populations of bald
eagles in the continental United States.
The high biological productivity of the coastal and offshore waters
in the Sanctuary support valuable fisheries that contribute
significantly to the State and tribal economies. The commercially
important species of fish include five species of salmon, groundfish,
and shellfish.
In addition to the Sanctuary's value with respect to its biological
resources, the region encompasses significant historical resources
including Indian village sites, ancient canoe runs, petroglyphs, Indian
artifacts, and numerous shipwrecks.
The diversity and richness of marine resources suggests that the
marine sanctuary designations will provide exceptional opportunities
for scientific research in the areas of species interactions,
population dynamics, physiological ecology, linkages between
terrestrial and aquatic ecosystems, and marine anthropology. The
scientific research encouraged by the Sanctuary management plan will,
in turn, help support an intensive public education and awareness
program that will address the diverse, complex, and sensitive
ecosystems in Washington's coastal and oceanic environments.
Article IV. Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation, including
prohibition, to the extent necessary and reasonable to ensure the
protection and management of the conservation, ecological,
recreational, research, educational, historical and aesthetic resources
and qualities of the area:
a. Exploring for, developing, or producing oil, gas or minerals
(e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous
ores or any other solid material or other solid matter of commercial
value) within the Sanctuary;
b. Discharging or depositing from within the boundary of the
Sanctuary, any material or other matter;
c. Discharging or depositing, from beyond the boundary of the
Sanctuary, any material or other matter;
d. Taking, removing, moving, catching, collecting, harvesting,
feeding, injuring, destroying or causing the loss of, or attempting to
take, remove, move, catch, collect, harvest, feed, injure, destroy or
cause the loss of, a marine mammal, sea turtle, seabird, historical
resource or other Sanctuary resource;
e. Drilling into, dredging, or otherwise altering the seabed of the
Sanctuary; or constructing, placing, or abandoning any structure,
material or other matter on the seabed of the Sanctuary;
f. Possessing within the Sanctuary a Sanctuary resource or any
other resource, regardless of where taken, removed, moved, caught,
collected or harvested, that, if it had been found within the
Sanctuary, would be a Sanctuary resource;
g. Flying a motorized aircraft above the Sanctuary;
h. Operating a vessel (i.e., watercraft of any description in the
Sanctuary;
i. Interfacing with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the Act or any regulation or permit
issued under the Act.
Section 2. Emergencies
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or minimize the imminent
risk of such destruction, loss or injury, any and all activities,
including those not listed in Section 1 of this Article, are subject to
immediate temporary regulation, including prohibition.
Article V. Effect on Leases, Permits, Licenses, and Rights
Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no
valid lease, permit, license, or other authorization issued by any
Federal, State, or local authority of competent jurisdiction, or any
right of subsistence use of access, may be terminated by the Secretary
of Commerce or designee as a result of this designation. The Secretary
of Commerce or designee, however, may regulate the exercise (including,
but not limited to, the imposition of terms and conditions) of such
authorization or right consistent with the purposes for which the
Sanctuary is designated.
In no event may the Secretary or designee issue a permit
authorizing, or otherwise approve: (1) Exploration for, development or
production of oil, gas or minerals within the Sanctuary; (2) the
discharge of primary treated sewage (except for regulation, pursuant to
section 304(c)(2) of the Act, of the exercise of valid authorizations
in existence on the effective date of Sanctuary designation and issued
by other authorities of competent jurisdiction); (3) the disposal of
dredged material within the Sanctuary other than in connection with
beach nourishment projects related to harbor maintenance activities; or
(4) bombing activities within the Sanctuary. Any purported
authorizations issued by other authorities after the effective date of
Sanctuary designation for any of these activities within the Sanctuary
shall be invalid.
Article VI. Alteration of This Designation
The terms of designation, as defined under Section 304(a) of the
Act, may be modified only by the same procedures by which the original
designation is made, including public hearings consultation with
interested Federal, State, and local agencies, review by the
appropriate Congressional committees and the Governor of the State of
Washington, and approval by the Secretary of Commerce or designee.
Appendix A.--Olympic Coast National Marine Sanctuary Boundary
Coordinates.
[Based on North American Datum of 1983]
------------------------------------------------------------------------
2500 square nautical miles
Point -------------------------------
Latitude Longitude
------------------------------------------------------------------------
1....................................... 47 deg.07'45'' 124 deg.11'02'
'
2....................................... 47 deg.07'45'' 124 deg.58'12'
'
3....................................... 47 deg.35'50'' 125 deg.00'00'
'
4....................................... 47 deg.40'05'' 125 deg.04'44'
'
5....................................... 47 deg.50'01'' 125 deg.05'42'
'
6....................................... 47 deg.57'13'' 125 deg.29'13'
'
7....................................... 48 deg.07'33'' 125 deg.38'20'
'
8....................................... 48 deg.14'46'' 125 deg.40'59'
'
9....................................... 48 deg.20'12'' 125 deg.22'59'
'
10...................................... 48 deg.27'49'' 125 deg.06'04'
'
11...................................... 48 deg.29'59'' 124 deg.59'13'
'
12...................................... 48 deg.30'19'' 124 deg.50'42'
'
13...................................... 48 deg.29'38'' 124 deg.43'41'
'
14...................................... 48 deg.27'50'' 124 deg.38'13'
'
15...................................... 48 deg.23'17'' 124 deg.38'13'
'
------------------------------------------------------------------------
III. Summary of Final Management Plan
The FEIS/MP for the Olympic Coast National Marine Sanctuary sets
forth the Sanctuary's location and provides details on the most
important resources and uses of the Sanctuary. The FEIS/MP describes
the resources and uses of the Sanctuary. The FEIS/MP describes the
resource protection, research, education and interpretive programs, and
establishes goals and objectives to be accomplished by each program.
The FEIS/MP includes a detailed discussion, by program area, of agency
roles and responsibilities.
The goals and objectives for the Sanctuary are:
Resource Protection
The highest priority management goal is to protect the marine
environment, resources and qualities of the Sanctuary. The specific
objectives of protection efforts are to:
(1) Coordinate policies and procedures among agencies sharing
responsibility for protection and management of resources;
(2) Encourage participation by interested agencies and
organizations in the development of procedures to address specific
management concerns (e.g., monitoring and emergency-response programs);
(3) Develop an effective and coordinated program for the
enforcement of Sanctuary regulations;
(4) Enforce Sanctuary regulations in addition to other regulations
already in place;
(5) Promote public awareness of, and voluntary compliance with,
Sanctuary regulations and objectives, through an educational/
interpretive program stressing resource sensitivity and wise use;
(6) Ensure that the water quality of the coastal and ocean waters
off the Olympic Peninsula is maintained at a level consonant with
Sanctuary designation;
(7) Establish mechanisms for coordination among all the agencies
participating in Sanctuary management;
(8) Ensure that the appropriate management agencies incorporate
research results and scientific data into effective resource protection
strategies; and
(9) Reduce threats to Sanctuary resources and qualities.
Research Program
Effective management of the Sanctuary requires the implementation
of a Sanctuary research program. The purpose of Sanctuary research
activities is to improve understanding of the marine environment off
the Olympic peninsula, its resources and qualities, and to resolve
specific management problems, some of which may involve resources
common to both the marine and upland freshwater environments. Research
results will be used in interpretive programs for visitors, for those
living on the Peninsula, and working adjacent to or in the Sanctuary,
others interested in the Sanctuary, as well as for protection and
management of resources and qualities.
Specific objectives of the research program are to:
(1) Establish a framework and procedures for administering research
to ensure that research projects are responsive to management concerns
and that results contribute to improve management of the Sanctuary;
(2) Incorporate research results into the interpretive/education
program in a format useful for the general public;
(3) Focus and coordinate data collection efforts on the physical,
chemical, geological and biological oceanography of the Sanctuary;
(4) Encourage studies that integrate research from the variety of
coastal habitats with nearshore and open ocean processes;
(5) Initiate a monitoring program to assess environmental changes
as they occur due to natural and human processes;
(6) Identify the range of effects on the environment that would
result from predicted changes in human activity or natural phenomena;
and
(7) Encourage information exchange among all the organizations and
agencies undertaking management-related research in the Sanctuary to
promote more informed management.
Education Program
The goal for the education program is to improve public awareness
and understanding of the significance of the Sanctuary resources and
qualities to foster a heightened sense of stewardship for Sanctuary
resources and qualities.
The management objectives designed to meet this goal are to:
(1) Provide the public with information on the Sanctuary and its
goals and objectives, with an emphasis on the need to use Sanctuary
resources and qualities wisely to ensure their long-term viability;
(2) Broaden support for the Sanctuary management by offering
programs suited to visitors with a range of diverse interests;
(3) Foster public involvement by encouraging feedback on the
effectiveness of education programs, collaboration with Sanctuary
management staff in extension and outreach programs, and participation
in other volunteer programs; and
(4) Collaborate with other organizations to provide educational
services complementary to the Sanctuary program.
Visitor Use
The Sanctuary goal for visitor management is to facilitate, to the
extent compatible with the primary objective of resource protection,
public and private uses of the resources of the Sanctuary not
prohibited pursuant to other authorities.
Specific management objectives are to:
(1) Provide relevant information about Sanctuary regulations, use
policies and standards;
(2) Collaborate with public and private organizations in promoting
compatible uses of the Sanctuary;
(3) Encourage the public who use the Sanctuary to respect sensitive
Sanctuary resources and qualities; and
(4) Monitor and assess the levels of use to identify and control
potential degradation of resources and qualities and minimize potential
user conflicts.
The Sanctuary headquarters will be located in Port Angeles, WA with
an initial satellite office near Forks, WA.
IV. Summary of Regulations
The regulations set forth the boundary of the Sanctuary; prohibit a
relatively narrow range of activities; set forth procedures for
applying for national marine sanctuary permits to conduct prohibited
activities; set forth certification procedures for existing leases,
licenses, permits, other authorizations or rights authorizing the
conduct of a prohibited activity; set forth notification and review
procedures for applications for licenses, permits, or other
authorizations to conduct a prohibited activity; set forth the maximum
per-day penalties for violating Sanctuary regulations; and set forth
procedures for administrative appeals.
The regulations are codified in part 925 of title 15, Code of
Federal Regulations.
Section 925.1 sets forth as the purpose of the regulations to
implement the designation of the Olympic Coast National Marine
Sanctuary by regulating activities affecting the Sanctuary consistent
with the terms of that designation in order to protect and manage the
conservation, ecological, recreational, research, educational,
historical and aesthetic resources and qualities of the area.
Section 925.2 and Appendix A following Sec. 925.12 set forth the
boundary of the Sanctuary.
Section 925.3 defines various terms used in the regulations. Other
terms appearing in the regulations are defined at 15 CFR 922.2 and/or
in the MPRSA.
Section 925.4 allows all activities except those prohibited by
Sec. 925.5 to be undertaken subject to the requirements of any
emergency regulation promulgated pursuant to Sec. 925.6, subject to all
prohibitions, restrictions and conditions validly imposed by any other
authority of competent jurisdiction, and subject to the liability
established by Section 312 of the Act.
Section 925.5 prohibits a variety of activities and thus makes it
unlawful for any person to conduct them or cause them to be conducted.
However, any of the prohibited activities except for:
(1) The exploration for, development or production of oil, gas or
minerals in the Sanctuary;
(2) The discharge of primary-treated sewage within the Sanctuary
(except pursuant to certification under Sec. 925.10, of a valid
authorization in existence on the effective date of Sanctuary
designation and issued by other authorities of competent jurisdiction);
(3) The disposal of dredged material within the Sanctuary other
than in connection with beach nourishment projects related to harbor
maintenance activities; and
(4) Bombing activities within the Sanctuary could be conducted
lawfully if:
(1) The activity is necessary to respond to an emergency
threatening life, property, or the environment (not applicable to the
prohibitions against takings and interference with law enforcement);
necessary for valid law enforcement purposes; authorized by a National
Marine Sanctuary permit issued under Sec. 925.9 (not applicable to the
prohibition against interference with law enforcement); or authorized
by a Special Use Permit issued under Section 310 of the Act (not
applicable to the prohibition against interference with law
enforcement);
(2) With regard to Department of Defense activities: (A) the
activity is an existing military activity including hull integrity
tests and other deep water tests; live firing of guns, missiles,
torpedoes, and chaff; activities associated with the Quinault Range
including the in-water testing of non-explosive torpedoes; and anti-
submarine warfare operations, or (B) the activity is a new activity and
exempted by the Director of the Office of Ocean and Coastal Resource
Management or designee after consultation between the Director or
designee and the Department of Defense. The regulations require that
the Department of Defense carry out its activities in a manner that
avoids to the maximum extent practicable any adverse impact on
Sanctuary resources and qualities and that it, in the event of
threatened or actual destruction of, loss of, or injury to a Sanctuary
resource or quality resulting from an untoward incident, including but
not limited to spills and groundings, caused by it, promptly coordinate
with the Director or designee for the purpose of taking appropriate
actions to respond to and mitigate the harm and, if possible, restore
or replace the Sanctuary resource or quality. The final regulation
regarding Department of Defense activities differs from the proposed
regulation principally by prohibiting all bombing activities within the
Sanctuary;
(3) The activity is authorized by a certification by the Director
of the Office of Ocean and Coastal Resource Management or designee
under Sec. 924.10 of a valid lease, permit, license or other
authorization issued by any Federal, State or local authority of
competent jurisdiction and in existence on (or conducted pursuant to
any valid right of subsistence use or access in existence on) the
effective date of this designation, subject to complying with any terms
and conditions imposed by the Director or designee as he or she deems
necessary to achieve the purposes for which the Sanctuary was
designated, except that treaty rights of a Federally recognized Indian
tribe may be exercised by the tribe without certification by the
Director or designee;
(4) The activity is authorized by a valid lease, permit, license,
or other authorization issued by any Federal, State or local authority
of competent jurisdiction after the effective date of Sanctuary
designation, provided that the Director of the Office of Ocean and
Coastal Resource Management or designee was notified of the application
in accordance with the requirements of Sec. 925.11, the applicant
complies with the requirements of Sec. 925.11, the Director or designee
notifies the applicant and authorizing agency that he or she does not
object to issuance of the authorization, and the applicant complies
with any terms and conditions the Director or designee deems necessary
to protect Sanctuary resources and qualities.
The first activity prohibited is exploring for, developing or
producing oil, gas or minerals within the Sanctuary. With regard to oil
and gas, this regulation implements the requirements of Section 2207 of
the Oceans Act of 1992 which prohibits ``oil or gas leasing or pre-
leasing activity [from being] conducted within the area designated as
the Olympic Coast National Marine Sanctuary * * *.'' The resources and
qualities of the coastal and offshore waters of the Olympic Peninsula,
particularly the sea birds and pinnipeds that use the haul-out sites,
kelp forests and rocks along the Olympic Coast, and the high water
quality of the area, are especially vulnerable to oil and gas
activities in the area. A prohibition on oil and gas exploration,
development and production activities within the Sanctuary boundary
partially protects Sanctuary resources and qualities from oil and gas
activities. Only partial protection will be provided due to the
remaining threat from oil and gas from vessel traffic transiting
through and near the Sanctuary, particularly oil tankers not operating
in accordance with the voluntary agreement of the Western States
Petroleum Association to remain 50 nautical miles from shore. A
prohibition on mineral activities within the Sanctuary is consistent
with the prohibition on alteration of or construction on the seabed as
discussed below. ``Mineral'' is defined to mean clay, stone, sand,
gravel, metalliferous ore, nonmetalliferous ore, or any other solid
material or other solid matter of commercial value. The prohibition on
oil, gas and mineral activities additionally will prevent the negative
effects of physical and possible chemical disturbances associated with
extraction activities, e.g., destruction of benthic biota; resuspension
of fine sediments; interference with filtering, feeding and respiratory
functions of marine organisms; loss of food sources and habitats; and
lowered photosynthesis and oxygen levels.
The second activity prohibited is depositing or discharging from
within the boundary of the Sanctuary any material or other matter
except:
(1) Fish, fish parts, chumming materials or bait used in or
resulting from traditional fishing operations in the Sanctuary;
(2) Biodegradable effluent incidental to vessel use and generated
by marine sanitation devices approved in accordance with Section 312 of
the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C.
1322 et seq.;
(3) Water generated by routine vessel operations (e.g., cooling
water, deck wash down and graywater as defined by Section 312 of the
FWPCA) excluding oily-wastes from bilge pumping;
(4) Engine exhaust; and
(5) Dredge spoil in connection with beach nourishment projects
related to harbor maintenance activities.
This prohibition is necessary to protect Sanctuary resources and
qualities from the effects of pollutants deposited or discharged into
the Sanctuary.
After expiration of current permits, discharges from municipal
treatment plants will be subject to the review process of Sec. 925.11.
At a minimum, secondary treatment will be required. Depending on the
risk to Sanctuary resources and qualities, greater treatment may be
required. The intent of this prohibition is to protect Sanctuary
resources and qualities from the effects of land and sea originating
pollutants.
The third activity prohibited is depositing or discharging, from
beyond the boundary of the Sanctuary, any material or other matter that
subsequently enters the Sanctuary and injures a Sanctuary resource or
quality, except for the five exclusions discussed above for the second
prohibited activity.
The fourth activity prohibited is moving, removing or injuring or
attempting to move, remove or injure a Sanctuary historical resource.
Historical resources in the marine environment are fragile, finite and
non-renewable. This prohibition is designed to protect these resources
so that they may be researched and information about their contents and
type made available for the benefit of the public. This prohibition
does not apply to moving, removing or injury resulting incidentally
from traditional fishing operations.
Historical resources located within the Sanctuary that are of
significance to an Indian tribe(s) (e.g., submerged Indian villages)
will be managed so as to protect other Sanctuary resources and the
interests of the governing body of an Indian tribe(s) in such
historical resources. If an Indian tribe determines that a historical
resource of tribal significance may be researched, excavated or
salvaged, the Sanctuary manager may issue a Sanctuary permit if the
criteria for issuance have been met (See Sec. 925.9). Removal or
attempted removal of any Indian cultural resource or artifact may only
occur with the express written consent of the governing body of the
tribe or tribes to which such resource or artifact pertains.
The fifth activity prohibited is drilling into, dredging or
otherwise altering the seabed of the Sanctuary; or constructing,
placing or abandoning any structure, material or other matter on the
seabed of the Sanctuary, except if any of the above results
incidentally from: (1) Anchoring vessels; (2) traditional fishing
operations; (3) installation of navigation aids; (4) harbor maintenance
in the areas necessarily associated with Federal Projects in existence
on the effective date of Sanctuary designation, including dredging of
entrance channels and harbors, and repair, replacement or
rehabilitation of breakwaters and jetties; (5) construction, repair,
replacement, enhancement or rehabilitation of boat launches, docks or
piers and associated breakwaters and jetties; or (6) beach nourishment
projects related to harbor maintenance activities. Federal projects are
any water resources development projects conducted by the U.S. Army
Corps of Engineers or operating under a permit or authorization issued
by the Corps of Engineers and authorized by Federal law.
The intent of this prohibition is to protect the resources and
qualities of the Sanctuary from the harmful effects of activities such
as, but not limited to, archaeological excavations, drilling into the
seabed, strip mining, laying of pipelines and outfalls, and offshore
commercial development, which may disrupt and/or destroy sensitive
marine benthic habitats, such as kelp beds, invertebrate populations,
fish habitats and estuaries.
The sixth activity prohibited is taking marine mammals, sea turtles
or seabirds in or above the Sanctuary, except as authorized by NMFS or
USFWS under the authority of the Marine Mammal Protection Act, as
amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as
amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty
Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to a treaty
with an Indian tribe to which the United States is a party, provided
that the treaty right is exercised in accordance with the MMPA, ESA and
MBTA, to the extent that they apply. The term ``taking'' includes all
forms of harassment. The MMPA, ESA and MBTA prohibit the taking of
species protected under those acts. The prohibition overlaps with the
MMPA, ESA and MBTA but also extends protection for Sanctuary resources
on an environmentally holistic basis and provides a greater deterrent
with civil penalties of up to $100,000 per taking. The prohibition
covers all marine mammals, sea turtles and seabirds in or above the
Sanctuary. The prohibition recognizes existing treaty rights to hunt
marine mammals, sea turtles and seabirds to the extent that the treaty
rights have not been abrogated by provisions of the MMPA, ESA or MBTA.
The seventh activity prohibited is flying motorized aircraft at
less than 2,000 feet (610m) both above the Sanctuary within one
nautical mile of the Flattery Rocks, Quillayute Needles or Copalis
National Wildlife Refuge, or within one nautical mile seaward of the
coastal boundary of the Sanctuary, except as necessary for valid law
enforcement purposes, for activities related to tribal timber
operations conducted on reservation lands, or to transport persons or
supplies to or from reservation lands as authorized by a governing body
of an Indian tribe. This prohibition is designed to limit potential
noise impacts, particularly those that might startle hauled-out seals
and sea lions, and colonial seabirds along the shoreline margins of the
Sanctuary.
Both the eighth and ninth prohibitions serve to facilitate
enforcement actions for violations of Sanctuary regulations. The eighth
prohibition is the possession within the Sanctuary of any historical
resource or marine mammal, sea turtle or seabird, regardless of where
the resource was taken, except in compliance with the MMPA, ESA and
MBTA and the ninth prohibition is interfering with, obstructing,
delaying or preventing investigations, searches, seizures or
disposition of seized property in connection with enforcement of the
Act or any regulation or permit issued under the Act.
Section 925.6 authorizes the regulation, including prohibition, on
a temporary basis of any activity where necessary to prevent or
minimize the destruction of, loss of, or injury to a Sanctuary resource
or quality, or minimize the imminent risk of such destruction, loss or
injury.
Section 925.7 sets for the maximum statutory civil penalty for
violating a regulation--$100,000. Each day of a continuing violation
constitutes a separate violation. Section 925.8 repeats the provision
in section 312 of the Act that any person who destroys, causes the loss
of, or injures any sanctuary resource is liable to the United States
for response costs and damages resulting from such destruction, loss or
injury, and any vessel used to destroy, cause the loss of, or injure
any sanctuary resource is liable in rem to the United States for
response costs and damages resulting from such destruction, loss or
injury. The purpose of these sections is to draw the public's attention
to the liability for violating a Sanctuary regulation or the Act.
Regulations setting forth the procedures governing administrative
proceedings for assessment of civil penalties, permit sanctions and
denials for enforcement reasons, issuance and use of written warnings,
and release or forfeiture of seized property appear in 15 CFR part 904.
Section 925.9 sets forth the procedures for applying for a National
Marine Sanctuary permit to conduct a prohibited activity and the
criteria governing the issuance, denial, amendment, suspension and
revocation of such permits. A permit may be granted by the Director of
the Office for Ocean and Coastal Resource Management or designee if he
or she finds that the activity will not substantially injure Sanctuary
resources and qualities and will: Further research related to Sanctuary
resources; further the educational, natural or historical resource
value of the Sanctuary; further salvage or recovery operations in or
near the Sanctuary in connection with a recent air or marine casualty;
assist in the management of the Sanctuary; further salvage or recovery
operations in connection with an abandoned shipwreck in the Sanctuary
title to which is held by the State of Washington; or promote the
welfare of any Indian tribe. In deciding whether to issue a permit, the
Director or designee may consider such factors as the professional
qualifications and financial ability of the applicant as related to the
proposed activity, the duration of the activity and the duration of its
effects, the appropriateness of the methods and procedures proposed by
the applicant for the conduct of the activity, the extent to which the
conduct of the activity may diminish or enhance Sanctuary resources and
qualities, the cumulative effects of the activity, the end value of the
activity, and the impacts of the activity on adjacent Indian tribes. In
addition, the Director or designee is authorized to consider any other
factors she or he deems appropriate.
Section 925.10 sets forth procedures for requesting certification
of leases, licenses, permits, other authorizations, or rights in
existence on the date of Sanctuary designation authorizing the conduct
of an activity prohibited under paragraphs (a)(2)-(8) of Sec. 925.5.
Pursuant to paragraph (f) of Sec. 925.5, the prohibitions in paragraphs
(a)(2)-(8) of Sec. 925.5 do not apply to any activity authorized by a
valid lease, permit, license, or other authorization in existence on
the effective date of Sanctuary designation and issued by any Federal,
State or local authority of competent jurisdiction, or by any valid
right of subsistence use or access in existence on the effective date
of Sanctuary designation, provided that the holder of such
authorization or right complies with the requirements of Sec. 925.10
(e.g., notifies the Director or designee of the existence of, requests
certification of, and provides requested information regarding such
authorization or right) and complies with any terms and conditions on
the exercise of such authorization or right imposed as a condition of
certification by the Director or designee as she or he deems necessary
to achieve the purposes for which the Sanctuary was designated.
Section 925.10 allows the holder 90 days from the effective date of
Sanctuary designation to request certification. The holder is allowed
to conduct the activity without being in violation of the prohibitions
in paragraphs (a)(2)-(8) of Sec. 925.5 with regard to which the holder
is requesting certification pending final agency action on his or her
certification request, provided the holder has complied with all
requirements of Sec. 925.10.
Section 925.10 also allows the Director or designee to request
additional information from the holder and to seek the views of other
persons.
As a condition of certification, the Director or designee will
impose such terms and conditions on the exercise of such lease, permit,
license, other authorization or right as she or he deems necessary to
achieve the purposes for which the Sanctuary was designated. This is
consistent with the Secretary's authority under section 304(c)(2) of
the Act. The holder may appeal any action conditioning, amending,
suspending or revoking any certification in accordance with the
procedures set forth in Sec. 925.12.
Any amendment, renewal or extension not in existence as of the date
of Sanctuary designation of a lease, permit, license, other
authorization or right is subject to the provisions of Sec. 925.11.
Section 925.11 states that consistent with paragraph (g) of
Sec. 925.5, the prohibitions of paragraphs (a)(2)-(8) of Sec. 925.5 do
not apply to any activity authorized by any valid lease, permit,
license, or other authorization issued after the effective date of
Sanctuary designation by any Federal, State or local authority of
competent jurisdiction, provided that the applicant notifies the
Director or designee of the application for such authorization within
15 days of the date of filing of the application or of the effective
date of Sanctuary designation, whichever is later, that the applicant
is in compliance with the other provisions of Sec. 925.11, that the
Director or designee notifies the applicant and authorizing agency that
he or she does not object to issuance of the authorization, and that
the applicant complies with any terms and conditions the Director or
designee deems necessary to protect Sanctuary resources and qualities.
Where the applicant is the governing body of an Indian tribe, the
Director shall consider and protect the interests of the tribe to the
fullest extent practicable in keeping with the purposes of the
Sanctuary and the U.S. trust responsibility to the affected tribes.
Section 925.11 allows the Director or designee to request
additional information from the applicant and to seek the views of
other persons.
An application for an amendment to, an extension of, or a renewal
of an authorization is also subject to the provisions of Sec. 925.11.
The applicant may appeal any objection by, or terms or conditions
imposed by, the Director or designee to the Assistant Administrator or
designee in accordance with the procedures set forth in Sec. 925.12.
Section 925.12 sets forth the procedures for appealing to the
Assistant Administrator or designee actions of the Director or designee
with respect to:
(1) The granting, conditioning, amendment, denial, suspension or
revocation of a National Marine Sanctuary permit under Sec. 925.9 or a
Special Use permit under Section 310 of the Act;
(2) The granting, denial, conditioning, amendment, suspension or
revocation of a certification under Sec. 925.10; or
(3) The objection to issuance or the imposition of terms and
conditions under Sec. 925.11.
Prior to conditioning the exercise of existing leases, permits,
licenses, other authorizations or rights or conditioning or objecting
to proposed authorizations, NOAA intends to consult with relevant
issuing agencies as well as owners, holders or applicants.
NOAA's policy is to encourage best available management practices
to minimize non-point source pollution entering the Sanctuary and, for
municipal sewage discharge, to require, at a minimum, secondary
treatment and sometimes tertiary treatment or more, depending on
predicted effects on Sanctuary resources and qualities.
Section 925.13 has been added which requires the Director to
consult with state, local and tribal governments regarding areas of
mutual concern, including Sanctuary programs, permitting activities,
development and threats to Sanctuary resources. This section also
requires the Director to enter into memorandums of understanding with
such governments when requested regarding such consultations.
V. Miscellaneous Rulemaking Requirements
Regulatory Flexibility Act
The regulations in this notice allow all activities to be conducted
in the Sanctuary other than a relatively narrow range of prohibited
activities. The procedures in these regulations for applying for
National Marine Sanctuary permits to conduct prohibited activities, for
requesting certifications for pre-existing leases, licenses, permits,
other authorizations or rights authorizing the conduct of a prohibited
activity and for notifying NOAA of applications for leases, licenses,
permits, approvals or other authorizations to conduct a prohibited
activity will all act to lessen any adverse economic effect on small
entities. The regulations, in total, will not have a significant
economic impact on a substantial number of small entities, and when
they were proposed the General Counsel of the Department of Commerce so
certified to the Chief Counsel for Advocacy of the Small Business
Administration. As a result, neither an initial nor final Regulatory
Flexibility Analysis was prepared.
Paperwork Reduction Act
This rule contains collection of information requirements subject
to the requirements of the Paperwork Reduction Act (Pub. L. 96-511).
The collection of information requirements contained in the rule have
been reviewed by the Office of Management and Budget (OMB) under
section 3504(h) of the Paperwork Reduction Act and have been approved
under OMB Control No. 0648-0141. Comments from the public on the
collection of information requirements contained in this rule are
invited and should be addressed to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Paperwork
Reduction Project (06480141) Washington, DC 20503 (Attn: Desk Officer
for NOAA) and to Richard A. Roberts, room 724, 6010 Executive
Boulevard, Rockville, MD 20852.
Executive Order 12612
A Federalism Assessment (FA) was prepared for the proposed
designation, draft management plan and proposed implementing
regulations. The FA concluded that all were fully consistent with the
principles, criteria and requirements set forth in sections 2 through 5
of Executive Order 12612, Federalism Considerations in Policy
Formulation and Implementation (52 FR 41685, Oct. 26, 1987). Copies of
the FA are available upon request to the Office of Ocean and Coastal
Resource Management at the address listed above.
National Environmental Policy Act
In accordance with Section 304(a)(2) of the Act (16 U.S.C.
1434(a)(2)) and the provisions of the National Environmental Policy Act
of 1969 (42 U.S.C. 4321-4370(a)), a DEIS/MP was prepared for the
designation and proposed regulations. As required by Section 304(a)(2)
of the Act, the DEIS/MP included the resource assessment report
required by section 303(b)(3) of the Act (16 U.S.C. 1433(b)(3)), maps
depicting the boundary of the area proposed to be designated, and the
existing and potential uses and resources of the area. Copies of the
DEIS/MP were made available for public review on September 20, 1991,
with comments due on December 13, 1991. Public hearings were held in
Port Angeles, Seattle, Olympia, Aberdeen, Seaview and Washington, DC
from November 7 to 20, 1991. All comments were reviewed and, where
appropriate, incorporated into the FEIS/MP and these regulations.
Copies of the FEIS/MP are available upon request (see address section).
Executive Order 12630
This rule does not have takings implications within the meaning of
Executive Order 12630 sufficient to require preparation of a Takings
Implications Assessment under that order. It would not appear to have
an effect on private property sufficiently severe as effectively to
deny economically viable use of any distinct legally potential property
interest to its owner or to have the effect of, or result in, a
permanent or temporary physical occupation, invasion or deprivation.
While the prohibition on the exploration, development and production of
oil, gas and minerals from the Sanctuary might have a takings
implication if it abrogated an existing lease for OCS tracts within the
Sanctuary or an approval of an exploration or development and
production plan, no OCS leases have been sold for tracts within the
Sanctuary and no exploration or production and development plans have
been filed or approved.
Federal Domestic Assistance Catalog Number 11.429
Marine Sanctuary Program
List of Subjects in 15 CFR Part 925
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, Natural resources,
Penalties, Recreation and recreation areas, Reporting and recordkeeping
requirements, Research.
Dated: May 5, 1994.
W. Stanley Wilson,
Assistant Administrator for Ocean Services and Coastal Zone Management.
Accordingly, for the reasons set forth above, 15 CFR chapter IX is
amended as follows:
Part 925 is added to subchapter B to read as follows:
PART 925--OLYMPIC COAST NATIONAL MARINE SANCTUARY
Sec.
925.1 Purpose.
925.2 Boundary.
925.3 Definitions.
925.4 Allowed activities.
925.5 Prohibited activities.
925.6 Emergency regulations.
925.7 Penalties for violations or regulations.
925.8 Response costs and damages.
925.9 National Marine Sanctuary permits--application procedures and
issuance criteria.
925.10 Certification of pre-existing leases, licenses, permits,
approvals, other authorizations or rights to conduct a prohibited
activity.
925.11 Notification and review of applications for leases,
licenses, permits, approvals or other authorizations to conduct a
prohibited activity.
925.12 Appeals of administrative action.
925.13 Consultations with the state, affected Indian tribes and
other affected local authorities.
Appendix A to Part 925--Olympic Coast National Marine Sanctuary
Boundary Coordinates
Authority: Sections 302, 303, 304, 305, 306, 307, 310 and 312 of
Title III of the Marine Protection, Research, and Sanctuaries Act of
1972, as amended (16 U.S.C. 1431 et seq.).
Sec. 925.1 Purpose.
The purpose of the regulations in this Part is to implement the
designation of the Olympic Coast National Marine Sanctuary by
regulating activities affecting the Sanctuary consistent with the terms
of that designation in order to protect and manage the conservation,
ecological, recreational, research, educational, historical and
aesthetic resources and qualities of the area.
Sec. 925.2 Boundary.
(a) The Olympic Coast National Marine Sanctuary consists of an area
of approximately 2500 square nautical miles (approximately 8577 sq.
kilometers) of coastal and ocean waters, and the submerged lands
thereunder, off the central and northern coast of the State of
Washington.
(b) The Sanctuary boundary extends from Koitlah Point due north to
the United States/Canada international boundary. The Sanctuary boundary
then follows the U.S./Canada international boundary seaward to the 100
fathom isobath. The seaward boundary of the Sanctuary approximates the
100 fathom isobath in a southerly direction from the U.S./Canada
international boundary to a point due west of the mouth of the Copalis
River cutting across the heads of Nitnat, Juan de Fuca and Quinault
Canyons. The coastal boundary of the Sanctuary is the mean higher high
water line when adjacent to Federally managed lands cutting across the
mouths of all rivers and streams, except where adjacent to Indian
reservations, state and county owned lands; in such case, the coastal
boundary is the mean lower low water line. La Push harbor is excluded
from the Sanctuary boundary shoreward of the International Collision at
Sea regulation (Colreg.) demarcation lines. The precise boundary of the
Sanctuary is set forth in appendix A to this part.
Sec. 925.3 Definitions.
(a) The following terms are defined for the purposes of this part:
Act means Title III of the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended (16 U.S.C. 1431 et seq.).
Administrator or Under Secretary means the Administrator of the
National Oceanic and Atmospheric Administration/Under Secretary of
Commerce for Oceans and Atmosphere.
Assistant Administrator means the Assistant Administrator for Ocean
Services and Coastal Zone Management, National Oceanic and Atmospheric
Administration.
Director means the Director of the Office of Ocean and Coastal
Resource Management, National Oceanic and Atmospheric Administration.
Effective date of Sanctuary designation means the date the
regulations implementing the designation of the Sanctuary (the
regulations in this part) become effective.
Federal project means any water resources development project
conducted by the U.S. Army Corps of Engineers or operating under a
permit or authorization issued by the Corps of Engineers and authorized
by Federal law.
Historical resource means any resource possessing historical,
cultural, archaeological or paleontological significance, including
sites, structures, districts and objects significantly associated with
or representative of earlier people, cultures and human activities and
events. Historical resources include historical properties as defined
in the National Historic Preservation Act, as amended, and implementing
regulations, as amended.
Indian reservation means a tract of land set aside by the Federal
Government for use by a Federally recognized American Indian tribe and
includes, but is not limited to, the Makah, Quileute, Hoh and Quinault
Reservations.
Indian tribe means any American Indian tribe, band, group, or
community recognized by the Secretary of the Interior.
Injure means to change adversely, either in the short or long term,
a chemical, biological or physical attribute of, or the viability of,
and includes, but is not limited to, to cause the loss of or to
destroy.
Mineral means clay, stone, sand, gravel, metalliferous ore, non-
metalliferous ore, or any other solid material or other solid matter of
commercial value.
Person means any private individual, partnership, corporation or
other entity; or any officer, employee, agent, department, agency or
instrumentality of the Federal Government, of any State or local unit
of government, or of any foreign government.
Sanctuary means the Olympic Coast National Marine Sanctuary.
Sanctuary quality means any particular and essential characteristic
of the Sanctuary, including, but not limited to, water, sediment and
air quality.
Sanctuary resource means any living or non-living resource of the
Sanctuary that contributes to its conservation, recreational,
ecological, historical, research, educational or aesthetic value,
including, but not limited to, the substratum of the waters off the
Olympic Peninsula, bottom formations, marine plants and algae,
invertebrates, plankton, fish, birds, turtles, marine mammals and
historical resources.
Take or taking means: (1) For any marine mammal, sea turtle or
seabird listed as either endangered or threatened pursuant to the
Endangered Species Act, the term means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, collect or injure, or to attempt to
engage in any such conduct;
(2) For any other marine mammal, sea turtle or seabird, to harass,
hunt, capture, kill, collect or injure, or to attempt to engage in any
such conduct.
(3) For the purpose of both paragraphs (l) and (2) of this
definition, the term includes, but is not limited to, collecting any
dead or injured marine mammal, sea turtle or seabird, or any part
thereof; restraining or detaining any marine mammal, sea turtle or
seabird, or any part thereof, no matter how temporarily; tagging any
sea turtle, marine mammal or seabird; operating a vessel or aircraft or
doing any other act that results in the disturbing or molesting of any
marine mammal, sea turtle or seabird.
Traditional fishing means fishing using a commercial or
recreational fishing method that has been used in the Sanctuary before
the effective date of Sanctuary designation, including the retrieval of
fishing gear.
Treaty means a formal agreement between the United States
Government and an Indian tribe.
Vessel means a watercraft of any description capable of being used
as a means of transportation in/on the waters of the Sanctuary.
(b) Other terms appearing in the regulations in this part are
defined at 15 CFR 922.2 and/or in the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 et seq. and 16
U.S.C. 1431 et seq.
Sec. 925.4 Allowed activities.
All activities except those prohibited by Sec. 925.5 may be
undertaken subject to any emergency regulations promulgated pursuant to
Sec. 925.6, subject to all prohibitions, restrictions, and conditions
validly imposed by any other authority of competent jurisdiction, and
subject to the liability established by section 312 of the Act (see
Sec. 925.8).
Sec. 925.5 Prohibited activities.
(a) Except as specified in paragraphs (c) through (h) of this
Sec. 925.5, the following activities are prohibited and thus unlawful
for any person to conduct or cause to be conducted:
(1) Exploring for, developing or producing oil, gas or minerals
within the Sanctuary.
(2) Discharging or depositing, from within the boundary of the
Sanctuary, any material or other matter except:
(i) Fish, fish parts, chumming materials or bait used in or
resulting from traditional fishing operations in the Sanctuary;
(ii) Biodegradable effluent incidental to vessel use and generated
by marine sanitation devices approved in accordance with Section 312 of
the Federal Water Pollution Control Act, as amended, (FWPCA) 33 U.S.C.
1322 et seq.;
(iii) Water generated by routine vessel operations (e.g., cooling
water, deck wash down and graywater as defined by Section 312 of the
FWPCA) excluding oily wastes from bilge pumping;
(iv) Engine exhaust; or
(v) dredge spoil in connection with beach nourishment projects
related to harbor maintenance activities.
(3) Discharging or depositing, from beyond the boundary of the
Sanctuary, any material or other matter, except those listed in
paragraphs (a)(2) (i) through (v) of this Sec. 925.5, that subsequently
enters the Sanctuary and injures a Sanctuary resource or quality.
(4) Moving, removing or injuring, or attempting to move, remove or
injure, a Sanctuary historical resource. This prohibition does not
apply to moving, removing or injury resulting incidentally from
traditional fishing operations.
(5) Drilling into, dredging or otherwise altering the seabed of the
Sanctuary; or constructing, placing or abandoning any structure,
material or other matter on the seabed of the Sanctuary, except as an
incidental result of:
(i) Anchoring vessels;
(ii) Traditional fishing operations;
(iii) Installation of navigation aids;
(iv) Harbor maintenance in the areas necessarily associated with
Federal projects in existence on the effective date of Sanctuary
designation, including dredging of entrance channels and repair,
replacement or rehabilitation of breakwaters and jetties;
(v) Construction, repair, replacement or rehabilitation of boat
launches, docks or piers, and associated breakwaters and jetties; or
(vi) Beach nourishment projects related to harbor maintenance
activities.
(6) Taking any marine mammal, sea turtle or seabird in or above the
Sanctuary, except as authorized by the Marine Mammal Protection Act, as
amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as
amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty
Act, as amended, (MBTA), 703 et seq., or pursuant to any treaty with an
Indian tribe to which the United States is a party, provided that the
treaty right is exercised in accordance with the MMPA, ESA and MBTA, to
the extent that they apply.
(7) Flying motorized aircraft at less than 2,000 feet both above
the Sanctuary within one nautical mile of the Flattery Rocks,
Quillayute Needles, or Copalis National Wildlife Refuge, or within one
nautical mile seaward from the coastal boundary of the Sanctuary,
except for activities related to tribal timber operations conducted on
reservation lands, or to transport persons or supplies to or from
reservation lands as authorized by a governing body of an Indian tribe.
(8) Possessing within the Sanctuary (regardless of where taken,
moved or removed from) any historical resource, or any marine mammal,
sea turtle, or seabird taken in violation of the MMPA, ESA or MBTA, to
the extent that they apply.
(9) Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the Act or any regulation or permit
issued under the Act.
(b) The regulations in this part apply to foreign persons and
foreign vessels in accordance with generally recognized principles of
international law, and in accordance with treaties, conventions and
other international agreements to which the United States is a party.
(c) The prohibitions in paragraphs (a) (2) through (5), (7) and (8)
of this Sec. 925.5 do not apply to activities necessary to respond to
emergencies threatening life, property or the environment.
(d) The prohibitions in paragraphs (a) (2) through (5), (7) and (8)
of this Sec. 925.5 do not apply to activities necessary for valid law
enforcement purposes.
(e)(1) All Department of Defense military activities shall be
carried out in a manner that avoids to the maximum extent practicable
any adverse impacts on Sanctuary resources and qualities. Except as
provided in paragraph (e)(2) of this Sec. 925.5, the prohibitions in
paragraphs (a) (2) through (8) of this Sec. 925.5 do not apply to the
following military activities performed by the Department of Defense in
W-237A, W237-B, and Military Operating Areas Olympic A and B in the
Sanctuary:
(i) Hull integrity tests and other deep water tests;
(ii) Live firing of guns, missiles, torpedoes, and chaff;
(iii) Activities associated with the Quinault Range including the
in-water testing of non-explosive torpedoes; and
(iv) Anti-submarine warfare operations.
New activities may be exempted from the prohibitions in paragraphs
(a)(2) through (8) of this Sec. 945.5 by the Director or designee after
consultation between the Director or designee and the Department of
Defense. If it is determined that an activity may be carried out, such
activity shall be carried out in a manner that avoids to the maximum
extent practicable any adverse impact on Sanctuary resources and
qualities. Civil engineering and other civil works projects conducted
by the U.S. Army Corps of Engineers are excluded from the scope of this
paragraph (e)(1).
(2) The Department of Defense is prohibited from conducting bombing
activities within the Sanctuary.
(3) In the event of threatened or actual destruction of, loss of,
or injury to a Sanctuary resource or quality resulting from an untoward
incident, including but not limited to spills and groundings caused by
the Department of Defense, the Department of Defense shall promptly
coordinate with the Director or designee for the purpose of taking
appropriate actions to respond to and mitigate the harm and, if
possible, restore or replace the Sanctuary resource or quality.
(f) The prohibitions in paragraphs (a) (2) through (8) of this
section do not apply to any activity executed in accordance with the
scope, purpose, terms and conditions of a National Marine Sanctuary
permit issued pursuant to Sec. 925.9 or a Special Use permit issued
pursuant to Section 310 of the Act.
(g)(1) The prohibitions in paragraphs (a) (2) through (8) of this
Sec. 925.5 do not apply to any activity authorized by a valid lease,
permit, license, approval or other authorization in existence on the
effective date of Sanctuary designation and issued by any Federal,
State or local authority of competent jurisdiction, or by any valid
right of subsistence use or access in existence on the effective date
of Sanctuary designation, provided that the holder of such
authorization or right complies with Sec. 925.10 and with any terms and
conditions on the exercise of such lease, permit, license, other
authorization or right imposed by the Director or designee as a
condition of certification as he or she deems necessary to achieve the
purposes for which the Sanctuary was designated.
(2) Members of a federally recognized Indian tribe may exercise
aboriginal and treaty-secured rights, subject to the requirements of
other applicable law, without regard to the requirements of this Part.
The Director may consult with the governing body of a Tribe regarding
ways the Tribe may exercise such rights consistent with the purposes of
the Sanctuary.
(h) The prohibitions in paragraphs (a) (2) through (8) of
Sec. 925.5 do not apply to any activity authorized by any lease,
permit, license, or other authorization issued after the effective date
of Sanctuary designation and issued by any Federal, State or local
authority of competent jurisdiction, provided that the applicant
complies with Sec. 925.11, the Director or designee notifies the
applicant and authorizing agency that he or she does not object to
issuance of the authorization, and the applicant complies with any
terms and conditions the Director or designee deems necessary to
protect Sanctuary resources and qualities. Amendments, renewals and
extensions of authorizations in existence on the effective date of
designation constitute authorizations issued after the effective date.
(i) Notwithstanding paragraphs (f) and (h) of this Sec. 925.5, in
no event may the Director or designee issue a National Marine Sanctuary
permit under Sec. 925.9 or a Special Use permit under section 310 of
the Act authorizing, or otherwise approve: The exploration for,
development or production of oil, gas or minerals within the Sanctuary;
the discharge of primary-treated sewage within the Sanctuary (except by
certification, pursuant to Sec. 925.10, of valid authorizations in
existence on the effective date of Sanctuary designation and issued by
other authorities of competent jurisdiction); the disposal of dredged
material within the Sanctuary other than in connection with beach
nourishment projects related to harbor maintenance activities; or
bombing activities within the Sanctuary. Any purported authorizations
issued by other authorities after the effective date of Sanctuary
designation for any of these activities within the Sanctuary shall be
invalid.
Sec. 925.6 Emergency regulations.
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or minimize the imminent
risk of such destruction, loss or injury, any and all activities are
subject to immediate temporary regulation, including prohibition.
Sec. 925.7 Penalties for violations of regulations.
(a) Each violation of the Act, any regulation in this Part, or any
permit issued pursuant thereto, is subject to a civil penalty of not
more than $100,000. Each day of a continuing violation constitutes a
separate violation.
(b) Regulations setting forth the procedures governing
administrative proceedings for assessment of civil penalties, permit
sanctions and denials for enforcement reasons, issuance and use of
written warnings, and release or forfeiture of seized property appear
in 15 CFR part 904.
Sec. 925.8 Response costs and damages.
Under section 312 of the Act, any person who destroys, causes the
loss of, or injures any Sanctuary resource is liable to the United
States for response costs and damages resulting from such destruction,
loss or injury, and any vessel used to destroy, cause the loss of, or
injure any Sanctuary resource is liable in rem to the United States for
response costs and damages resulting from such destruction, loss or
injury.
Sec. 925.9 National Marine Sanctuary permits--application procedures
and issuance criteria.
(a) A person may conduct an activity prohibited by paragraphs (a)
(2) through (8) of Sec. 925.5 if conducted in accordance with the
scope, purpose, terms and conditions of a permit issued under this
Sec. 925.9.
(b) Applications for such permits should be addressed to the
Director of the Office of Ocean and Coastal Resource Management; Attn:
Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource
Management, National Ocean Service, National Oceanic and Atmospheric
Administration, 1305 East-West Highway, Building 4, Silver Spring, MD
20910. An application must include a detailed description of the
proposed activity including a timetable for completion of the activity
and the equipment, personnel and methodology to be employed. The
qualifications and experience of all personnel must be set forth in the
application. The application must set forth the potential effects of
the activity on Sanctuary resources and qualities. Copies of all other
required licenses, permits, approvals or other authorizations must be
attached.
(c) Upon receipt of an application, the Director or designee may
request such additional information from the applicant as he or she
deems necessary to act on the application and may seek the views of any
persons.
(d) The Director or designee, at his or her discretion, may issue a
permit, subject to such terms and conditions as he or she deems
appropriate, to conduct an activity prohibited by paragraphs (a) (2)
through (8) of Sec. 925.5, if the Director or designee finds that the
activity will not substantially injure Sanctuary resources and
qualities and will: further research related to Sanctuary resources and
qualities; further the educational, natural or historical resource
value of the Sanctuary; further salvage or recovery operations in or
near the Sanctuary in connection with a recent air or marine casualty;
assist in managing the Sanctuary; further salvage or recovery
operations in connection with an abandoned shipwreck in the Sanctuary
title to which is held by the State of Washington; or promote the
welfare of any Indian tribe adjacent to the Sanctuary. In deciding
whether to issue a permit, the Director or designee may consider such
factors as: the professional qualifications and financial ability of
the applicant as related to the proposed activity; the duration of the
activity and the duration of its effects; the appropriateness of the
methods and procedures proposed by the applicant for the conduct of the
activity; the extent to which the conduct of the activity may diminish
or enhance Sanctuary resources and qualities; the cumulative effects of
the activity; the end value of the activity; and the impacts of the
activity on adjacent Indian tribes. Where the issuance or denial of a
permit is requested by the governing body of an Indian tribe, the
Director shall consider and protect the interests of the tribe to the
fullest extent practicable in keeping with the purposes of the
Sanctuary and his or her fiduciary duties to the tribe. The Director or
designee may also deny a permit application pursuant to this
Sec. 925.9, in whole or in part, if it is determined that the permittee
or applicant has acted in violation of the terms or conditions of a
permit or of these regulations. (Procedures governing permit denials
for enforcement reasons are set forth in subpart D of 15 CFR part 904).
In addition, the Director or designee may consider such other factors
as he or she deems appropriate.
(e) A permit issued pursuant to this Sec. 925.9 is nontransferable.
(f) The Director or designee may amend, suspend or revoke a permit
issued pursuant to this section for good cause. Any such action shall
be communicated in writing to the permittee or applicant by certified
mail and shall set forth the reason(s) for the action taken. Procedures
governing permit sanctions for enforcement reasons are set forth in
subpart D of 15 CFR part 904.
(g) It shall be a condition of any permit issued that the permit or
a copy thereof be displayed on board all vessels or aircraft used in
the conduct of the activity.
(h) The Director or designee may, inter alia, make it a condition
of any permit issued that any data or information obtained under the
permit be made available to the public.
(i) The Director or designee may, inter alia, make it a condition
of any permit issued that a NOAA official be allowed to observe any
activity conducted under the permit and/or that the permit holder
submit one or more reports on the status, progress or results of any
activity authorized by the permit.
(j) The Director or designee shall obtain the express written
consent of the governing body of an Indian tribe prior to issuing a
permit, if the proposed activity involves or affects resources of
cultural or historical significance to the tribe.
(k) Removal, or attempted removal of any Indian cultural resource
or artifact may only occur with the express written consent of the
governing body of the tribe or tribes to which such resource or
artifact pertains, and certification by the Director that such
activities occur in a manner that minimizes damage to the biological
and archeological resources. Prior to permitting entry onto a
significant cultural site designated by a tribal governing body, the
Director shall acquire the express written consent of the governing
body of the tribe or tribes to which such cultural site pertains.
(l) The applicant for or holder of a National Marine Sanctuary
permit may appeal the denial, conditioning, amendment, suspension or
revocation of the permit in accordance with the procedures set forth in
Sec. 925.12.
Sec. 925.10 Certification of pre-existing leases, licenses, permits,
approvals, other authorizations--or rights to conduct a prohibited
activity.
(a) The prohibitions set forth in paragraphs (a) (2) through (8) of
Sec. 925.5 do not apply to any activity authorized by a valid lease,
permit, license, approval or other authorization in existence on the
effective date of Sanctuary designation and issued by any Federal,
State or local authority of competent jurisdiction, or by any valid
right of subsistence use or access in existence on the effective date
of Sanctuary designation, provided that:
(1) The holder of such authorization or right notifies the Director
or designee, in writing, within 90 days of the effective date of
Sanctuary designation, of the existence of such authorization or right
and requests certification of such authorization or right;
(2) The holder complies with the other provisions of this
Sec. 925.10; and
(3) The holder complies with any terms and conditions on the
exercise of such authorization or right imposed as a condition of
certification by the Director or designee to achieve the purposes for
which the Sanctuary was designated.
(b) The holder of a valid lease, permit, license, or other
authorization in existence on the effective date of sanctuary
designation and issued by any Federal, State or local authority of
competent jurisdiction, or of any valid right of subsistence use or
access in existence on the effective date of Sanctuary designation,
authorizing an activity prohibited by paragraphs (a) (2) through (8) of
Sec. 925.5 may conduct the activity without being in violation of
Sec. 925.5, pending final agency action on his or her certification
request, provided the holder is in compliance with this Sec. 925.10.
(c) Any holder of a valid lease, permit, license, or other
authorization in existence on the effective date of Sanctuary
designation and issued by any Federal, State or local authority of
competent jurisdiction, or any holder of a valid right of subsistence
use or access in existence on the effective date of Sanctuary
designation, may request the Director or designee to issue a finding as
to whether the activity for which the authorization has been issued, or
the right given, is prohibited by (a) (l) through (8) of Sec. 925.5.
(d) Requests for findings or certifications should be addressed to
the Director, Office of Ocean and Coastal Resource Management; Attn:
Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource
Management, National Ocean Service, National Oceanic and Atmospheric
Administration, 1305 East-West Highway, Building 4, Silver Spring, MD
20910. A copy of the lease, permit, license, or other authorization
must accompany the request.
(e) The Director or designee may request additional information
from the certification requester as he or she deems necessary to
condition appropriately the exercise of the certified authorization or
right to achieve the purposes for which the Sanctuary was designated.
The information requested must be received by the Director or designee
within 45 days of the postmark date of the request. The Director or
designee may seek the views of any persons on the certification
request.
(f) The Director or designee may amend any certification made under
this Sec. 925.10 whenever additional information becomes available
justifying such an amendment.
(g) The Director or designee shall communicate any decision on a
certification request or any action taken with respect to any
certification made under this Sec. 925.10, in writing, to both the
holder of the certified lease, permit, license, approval, other
authorization or right, and the issuing agency, and shall set forth the
reason(s) for the decision or action taken.
(h) Any time limit prescribed in or established under this
Sec. 925.10 may be extended by the Director or designee for good cause.
(i) The holder may appeal any action conditioning, amending,
suspending or revoking any certification in accordance with the
procedures set forth in Sec. 925.12.
(j) Any amendment, renewal or extension not in existence on the
effective date of Sanctuary designation of permit, license, approval,
other authorization or right is subject to the provisions of
Sec. 925.11.
Sec. 925.11 Notification and review of applications for leases,
licenses, permits, or other authorizations to conduct a prohibited
activity.
(a) The prohibitions set forth in paragraphs (a) (2) through (8) of
Sec. 925.5 do not apply to any activity authorized by any valid lease,
permit, license, or other authorization issued after the effective date
of Sanctuary designation by any Federal, State or local authority of
competent jurisdiction, provided that:
(1) The applicant notifies the Director or designee, in writing, of
the application for such authorization (and of any application for an
amendment, renewal or extension of such authorization) within fifteen
(15) days of the date of application or of the effective date of
Sanctuary designation, whichever is later;
(2) The applicant complies with the other provisions of this
Sec. 925.11;
(3) The Director or designee notifies the applicant and authorizing
agency that he or she does not object to issuance of the authorization
(or amendment, renewal or extension); and
(4) The applicant complies with any terms and conditions the
Director or designee deems necessary to protect Sanctuary resources and
qualities.
(b) Any potential applicant for a lease, permit, license or other
authorization from any Federal, State or local authority (or for an
amendment, renewal or extension of such authorization) may request the
Director or designee to issue a finding as to whether the activity for
which an application is intended to be made is prohibited by paragraphs
(a) (2) through (8) of Sec. 925.5.
(c) Notifications of filings of applications and requests for
findings should be addressed to the Director, Office of Ocean and
Coastal Resource Management; ATTN: Sanctuaries and Reserves Division,
Office of Ocean and Coastal Resource Management, National Ocean
Service, National Oceanic and Atmospheric Administration, 1305 East
West Highway, Building 4, Silver Spring, MD 20910. A copy of the
application must accompany the notification.
(d) The Director or designee may request additional information
from the applicant as he or she deems necessary to determine whether to
object to issuance of such lease, license, permit, or other
authorization (or to issuance of an amendment, extension or renewal of
such authorization), or what terms and conditions are necessary to
protect Sanctuary resources and qualities. The information requested
must be received by the Director or designee within 45 days of the
postmark date of the request. The Director or designee may seek the
views of any persons on the application.
(e) The Director or designee shall notify, in writing, the agency
to which application has been made of his or her review of the
application and possible objection to issuance. After review of the
application and information received with respect thereto, the Director
or designee shall notify both the agency and applicant, in writing,
whether he or she has an objection to issuance and what terms and
conditions he or she deems necessary to protect Sanctuary resources and
qualities. The Director or designee shall state the reason(s) for any
objection or the reason(s) that any terms and conditions are deemed
necessary to protect Sanctuary resources and qualities. Where the
applicant is the governing body of an Indian tribe, the Director shall
consider and protect the interests of the tribe to the fullest extent
practicable in keeping with the purposes of the Sanctuary and the
United States' trust responsibility to the affected tribes.
(f) The Director or designee may amend the terms and conditions
deemed necessary to protect Sanctuary resources and qualities whenever
additional information becomes available justifying such an amendment.
(g) Any time limit prescribed in or established under this section
may be extended by the Director or designee for good cause.
(h) The applicant may appeal any objection by, or terms or
conditions imposed by, the Director or designee to the Assistant
Administrator or designee in accordance with the procedures set forth
in Sec. 925.12.
Sec. 925.12 Appeals of administrative action.
(a) Except for permit actions taken for enforcement reasons (see
subpart D of 15 CFR part 904 for applicable procedures), an applicant
for, or a holder of, a Sec. 925.9 National Marine Sanctuary permit, an
applicant for, or a holder of, a section 310 of the Act Special Use
permit, a Sec. 925.10 certification requester or a Sec. 925.11
applicant (hereinafter appellant) may appeal to the Assistant
Administrator or designee:
(1) The grant, denial, conditioning, amendment, suspension or
revocation by the Director or designee of a National Marine Sanctuary
or Special Use permit;
(2) The conditioning, amendment, suspension or revocation of a
certification under Sec. 925.10; or
(3) The objection to issuance or the imposition of terms and
conditions under Sec. 925.11.
(b) An appeal under paragraph (a) of this Sec. 925.12 must be in
writing, state the action(s) by the Director or designee appealed and
the reason(s) for the appeal, and be received within 30 days of receipt
of notice of the action by the Director or designee. Appeals should be
addressed to the Assistant Administrator, Office of Ocean and Coastal
Resource Management, ATTN: Sanctuaries and Reserves Division, Office of
Ocean and Coastal Resource Management, National Ocean Service, National
Oceanic and Atmospheric Administration, 1305 East-West Highway,
Building 4, Silver Spring, MD 20910.
(c) While the appeal is pending, appellants requesting
certification pursuant to Sec. 925.10 who are in compliance with such
section may continue to conduct their activities without being in
violation of the prohibitions in paragraphs (a) (2) through (8) of
Sec. 925.5 with regard to which they are requesting certification. All
other appellants may not conduct their activities without being subject
to the prohibitions in paragraphs (a) (1) through (9) of Sec. 925.5.
(d) The Assistant Administrator or designee may request the
appellant to submit such information as the Assistant Administrator or
designee deems necessary in order for him or her to decide the appeal.
The information requested must be received by the Assistant
Administrator or designee within 45 days of the postmark date of the
request. The Assistant Administrator may seek the views of any other
persons. The Assistant Administrator or designee may hold an informal
hearing on the appeal. If the Assistant Administrator or designee
determines that an informal hearing should be held, the Assistant
Administrator or designee may designate an officer before whom the
hearing shall be held. The hearing officer shall give notice in the
Federal Register of the time, place and subject matter of the hearing.
The appellant and the Director or designee may appear personally or by
counsel at the hearing and submit such material and present such
arguments as deemed appropriate by the hearing officer. Within 60 days
after the record for the hearing closes, the hearing officer shall
recommend a decision in writing to the Assistant Administrator or
designee.
(e) The Assistant Administrator or designee shall decide the appeal
using the same regulatory criteria as for the initial decision and
shall base the appeal decision on the record before the Director or
designee and any information submitted regarding the appeal, and, if a
hearing has been held, on the record before the hearing officer and the
hearing officer's recommended decision. The Assistant Administrator or
designee shall notify the appellant of the final decision and the
reason(s) therefore in writing. The Assistant Administrator or
designee's decision shall constitute final agency action for the
purposes of the Administrative Procedure Act.
(f) Any time limit prescribed in or established under this
Sec. 925.12 other than the 30-day limit for filing an appeal may be
extended by the Assistant Administrator, designee or hearing officer
for good cause.
Sec. 925.13 Consultation with the state, affected Indian tribes and
other affected local authorities.
The Director shall regularly consult with the State of Washington,
the governing bodies of tribes with reservations adjacent to the
Sanctuary, and adjacent county governments regarding areas of mutual
concern, including Sanctuary programs, permitting, activities,
development, and threats to Sanctuary resources. The Director shall,
when requested by such governments, enter into a memorandum of
understanding regarding such consultations.
Appendix A to Part 925--Olympic Coast National Marine Sanctuary Boundary
Coordinates
[Based on North American Datum of 1983]
------------------------------------------------------------------------
2500 square nautical miles
Point -------------------------------
Latitude Longitude
------------------------------------------------------------------------
1....................................... 47 deg.07'45'' 124 deg.11'02'
'
2....................................... 47 deg.07'45'' 124 deg.58'12'
'
3....................................... 47 deg.35'05'' 125 deg.00'00'
'
4....................................... 47 deg.40'05'' 125 deg.04'44'
'
5....................................... 47 deg.50'01'' 125 deg.05'42'
'
6....................................... 47 deg.57'13'' 125 deg.29'13'
'
7....................................... 48 deg.07'33'' 125 deg.38'20'
'
8....................................... 48 deg.14'46'' 125 deg.40'59'
'
9....................................... 48 deg.20'12'' 125 deg.22'59'
'
10...................................... 48 deg.27'49'' 125 deg.06'04'
'
11...................................... 48 deg.29'59'' 124 deg.59'13'
'
12...................................... 48 deg.30'19'' 124 deg.50'42'
'
13...................................... 48 deg.29'38'' 124 deg.43'41'
'
14...................................... 48 deg.27'50'' 124 deg.38'13'
'
15...................................... 48 deg.23'17'' 124 deg.38'13'
'
------------------------------------------------------------------------
[FR Doc. 94-11389 Filed 5-10-94; 8:45 am]
BILLING CODE 3510-08-P