[Federal Register Volume 68, Number 68 (Wednesday, April 9, 2003)]
[Rules and Regulations]
[Pages 17292-17307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8546]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AC91


Personal Watercraft Use at Lake Mead National Recreation Area

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule designates areas where personal watercraft (PWC) may 
be used in Lake Mead National Recreation Area, Nevada and Arizona. This 
rule implements the provisions of the National Park Service (NPS) 
general regulation authorizing parks to allow the use of PWC by 
promulgating a special regulation. The NPS Management Policies 2001 
provides that individual parks should determine whether PWC use is 
appropriate for a specific park area based on an evaluation of that 
area's enabling legislation, resources and values, other visitor uses, 
overall management objectives, and consistent with the criteria of the 
NPS for managing visitor use. This rule authorizes the use of PWC at 
Lake Mead National Recreation Area consistent with the Record of 
Decision for Lake Management Plan.

EFFECTIVE DATE: This rule becomes effective April 9, 2003.

ADDRESSES: Mail Inquiries to: Jim Holland, Management Assistant, Lake 
Mead National Recreation Area, 601 Nevada Way, Boulder City, Nevada 
89005.

FOR FURTHER INFORMATION CONTACT: Kym Hall, Regulations Program Manager, 
National Park Service, 1849 C Street, NW., Room 7413, Washington, DC 
20240. Phone: (202) 208-4206.

SUPPLEMENTARY INFORMATION:

Personal Watercraft Use and Regulatory Background

    In May 1998 the Bluewater Network, a coalition of more than 70 
organizations, filed a petition urging the National Park Service to 
initiate the rulemaking process to prohibit PWC use throughout the 
National Park System. In response to the petition, the NPS proposed a 
specific PWC regulation premised on the notion that PWC use should be 
evaluated by the individual park area to determine if the use is an 
appropriate use of the park (63 FR 49312, Sept. 15, 1998).
    The NPS envisioned the servicewide regulation as an opportunity to 
evaluate impacts from PWC use before authorizing the use. The preamble 
to the servicewide regulation calls the regulation a ``conservative 
approach to managing PWC use'' considering the resource concerns, 
visitor conflicts, visitor enjoyment, and visitor safety. During a 60-
day comment period, the NPS received nearly 20,000 comments.
    After reviewing the public comments and further review, the NPS 
promulgated a final regulation that prohibited PWC use in all units, 
until the individual park areas determine PWC appropriateness for 
continued use (36 CFR 3.24(a), 65 FR 15077-90, Mar. 21, 2000). The 
final rule provided a 2-year grace period for 21 parks. Specifically, 
the regulation allowed the NPS to designate PWC areas and to continue 
PWC use by promulgating a special regulation in park areas, including 
Lake Mead National Recreation Area. Ten NRA's were given an additional 
option of authorizing PWC use through the units' superintendents' 
compendium (36 CFR 3.24(b)), but only if the requirements of 36 CFR 1.5 
were met. This additional designation method was provided for in the 
units because of their congressional designation as national recreation 
areas and specific congressional intent to provide for motorized 
watercraft use in these parks.
    In response to the PWC final regulation, Bluewater Network sued the 
NPS. The organization challenged the National Park Service decision to 
provide a 2-year grace period allowing continued PWC use in 21 park 
units while prohibiting PWC use in other park units. In addition, the 
organization also disputed the National Park Service decision to allow 
10 park units the additional option of authorizing continued PWC use 
after 2002 using the procedures of the superintendents' compendium (36 
CFR 1.5), which would not require the opportunity for public input 
through a notice and a comment rulemaking process.
    In response to the suit, the National Park Service and the 
environmental group negotiated a settlement. The resulting settlement 
agreement accepted by the court on April 12, 2001, required each of 
those parks authorizing continued PWC use must promulgate a park-
specific special regulation. The settlement agreement acknowledged that 
the NEPA analysis must, at a minimum, evaluate PWC impacts on water 
quality, air quality, soundscapes, wildlife, wildlife habitat, 
shoreline vegetation, visitor conflicts, and visitor safety.
    In 2001 the National Park Service adopted its revised NPS 
Management Policies (NPS 2001) for the National Park System. The policy 
document included a provision addressing PWC use in park units and the 
need for proper evaluation before authorizing use in a specific park 
unit (8.2.3.3). The policy states that the use should be evaluated 
based on the park's enabling legislation, resources, values, other park 
uses, and overall management strategies.
    On September 5, 2002, the National Park Service published a draft 
rule for the operation of PWC at Lake Mead NRA (67 FR 56785-94). The 
proposed rule for PWC use was based on alternative C (the preferred 
alternative) in the Draft Environment Impact Statement/Lake Management 
Plan (DEIS/LMP). The 60-day public comment period on the proposed rule 
ran from September 5 to November 4, 2002.

Overview of Recreational Use and Personal Watercraft

    The NPS is granted broad statutory authority under various acts of 
Congress to manage and regulate water activities in areas of the 
National Park System, 16 U.S.C. 1, 1a-2(h) and 3. The NPS Organic Act, 
16 U.S.C. 1 et seq., authorizes the NPS to ``* * * regulate the use of 
Federal areas known as national parks, monuments, and reservations * * 
* by such means and measures as conform to the fundamental purpose of 
the said parks * * * which purpose is to conserve the scenery and the 
natural and historic objects and the wildlife therein and to provide 
for the enjoyment of the same in such manner and by such means as will 
leave them unimpaired for the enjoyment of future generations.'' 
Congress has also emphasized that the ``* * * authorization of 
activities shall be construed and the protection, management, and 
administration of these areas shall be conducted in light of the high 
public value and integrity of the national park system and shall not be 
exercised in derogation of the values and purposes for which these 
various areas have been established, except as may have been or shall 
be directly and specifically provided by Congress.'' 16 U.S.C. 1a-1. 
The appropriateness of a visitor use or recreational activity will

[[Page 17293]]

vary from park to park. NPS Management Policies states that ``* * * the 
laws do give the Service the management discretion to allow impacts to 
park resources and values when necessary and appropriate to fulfill the 
purposes of a park, so long as the impact does not constitute 
impairment of the affected resources and values'' (1.4.3). NPS 
Management Policies provide further that, ``* * * preserving park 
resources and values unimpaired is the core, or primary responsibility 
of NPS managers * * *. In cases of doubt as to impacts of activities on 
park natural resources, the Service will decide in favor of protecting 
the natural resources.'' (4: 1).
    The Organic Act and the other statutory authorities of the NPS vest 
us with substantial discretion in determining how best to manage park 
resources and provide for park visitors. ``Courts have noted that the 
Organic Act is silent as to the specifics of park management and that 
under such circumstances, the NPS has broad discretion in determining 
which avenues best achieve the Organic Act's mandate * * *. Further, 
the NPS is empowered with the authority to determine what uses of park 
resources are proper and what proportion of the park resources are 
available for each use'' Bicycle Trail Council of Marin v. Babbitt, 82 
F.3d 1445, 1454 (9th Cir. 1996), quoting National Wildlife Federation 
v. National Park Service, 669 F. Supp. 384, 390 (D. Wyo. 1987). In 
reviewing a challenge to NPS regulations at Everglades National Park, 
the court stated, ``The task of weighing the competing uses of Federal 
property have been delegated by Congress to the Secretary of the 
Interior * * *. Consequently, the Secretary has broad discretion in 
determining how best to protect public land resources.'' Organized 
Fisherman of Florida v. Hodel, 775 F.2d 1544, 1550 (11th Cir. 1985), 
cert. denied, 476 U.S. 1169 (1986).
    Over the years, NPS areas have been impacted with new, and what 
often prove to be controversial, recreational activities. These 
activities tend to gain a foothold in NPS areas in their infancy, 
before a full evaluation of the possible impacts and ramifications that 
expanded use will have on the area can be initiated, completed and 
considered. PWC use fits this category.
    PWC use is a relative new recreational activity at Lake Mead NRA. 
PWC, primarily stand-up models, were first observed on Lakes Mead and 
Mohave in the mid-1970s. In the 1980s, the first sit-down models were 
available with one-or two-person capacities. During this time, PWC were 
manufactured by four companies, the first PWC magazines were published 
and the typical cost of a PWC was $6,600.
    From the mid-1980s through the 1990s, sales grew rapidly, then 
leveled off starting in the mid-1990s. According to visitor use surveys 
in 1993, the use of PWCs at Lake Mead NRA during this time constituted 
15% of the boats on the water at any one time. A rapid increase in PWCs 
was observed in 1994, when their use jumped to 30% of the boats on the 
water at any one time.
    Today monitoring shows that PWC use constitutes 35% of the boats on 
the water at any one time. There are 11,000 PWC registered in Clark 
County, Nevada and thousands more in the region surrounding Lake Mead 
NRA. The highest densities are observed in the urban interface areas of 
Lake Mead and in the southern portions of Lake Mohave.

Changes to the Final Rule

    Some changes have been made in the Lake Management Plan/Final 
Environmental Impact Statement. Five percent of the park waters will be 
managed for primitive and semiprimitive recreational settings. This is 
an increase of three percent over the acreage in the draft rule. PWC 
use is prohibited in primitive and semiprimitive zones.
    Bonelli Bay in the southern portion of the Virgin Basin was added 
to the semiprimitive zone on Lake Mead, as was the Lake Mead confluence 
with the Muddy River. These two areas account for the increased acreage 
in the semiprimitive zoning over the draft plan. The Overton Wildlife 
Management Area boundary defines the semiprimitive area of the Muddy 
River confluence and it is presently managed during the waterfowl 
hunting season as a flat wake area. This revision prohibits the use of 
PWC in the Overton Wildlife Management Area year-round.
    The recreational zoning in Black Canyon has been modified to allow 
additional boating access for five days per week during the peak 
boating season between Memorial Day and Labor Day each year. During 
this period the canyon will be managed as rural natural zone with no 
special speed or horsepower restrictions. PWC use in the canyon is 
authorized during this period. The remainder of the year Black Canyon 
will be managed for semiprimitive conditions with a 65-horsepower 
maximum. As proposed in the LMP/DEIS, Black Canyon will be managed as a 
primitive setting two days per week (Sunday and Monday) year round.
    In response to comments from the States of Arizona and Nevada, the 
proposed 100-foot flat wake zone around the entire lakes has been 
revised to a 200-foot flat wake zone around beaches occupied by 
bathers, around boats at the shoreline and a person in the water or at 
the shoreline. This revision is more closely aligned with existing 
Nevada boating law and allows the NPS to move toward the goal of 
providing unified boating law for the interstate waters of Lakes Mead 
and Mohave.
    There are a number of actions that will require subsequent 
rulemaking in the implementation of the Lake Management Plan. This rule 
has been tailored specifically to address PWC operation in response to 
the general regulation in 36 CFR 3.24 prohibiting PWC use except by 
special regulation. The National Park Service focused specifically on 
PWC to prevent or minimize the period that PWC use would be restricted 
at Lake Mead NRA. It is the National Park Service's intention to move 
ahead with the additional rulemaking that will apply the flat-wake rule 
to all watercraft and to implement other aspects of the approved Lake 
Management Plan (LMP).

Discussion of Economic Effects of PWC Use

    From an economic perspective, both alternative C (the continued use 
of PWC in 95% of Lake Mead and other restrictions as presented in this 
rulemaking) and alternative D, which would permit all two stroke 
engines and PWC in all of Lake Mead, resulted in the highest quantified 
net benefits, with alternative D resulting in a slightly higher amount 
of net quantified benefits. However, the National Park Service chose 
alternative C because certain costs could not be quantified in the net 
economic benefits. Those costs, relating to non-PWC use, aesthetics, 
ecosystem protection, human health and safety, congestion, or non-use 
values, would likely be greater for alternative D than for alternative 
C. Given that the quantified net benefits of alternatives C and D are 
already similar (see the table below), further inclusion of these non-
quantified costs could reasonably result in alternative C having the 
greatest level of net benefits. Therefore, based on these factors, 
alternative C was considered to provide the greatest level of net 
benefits.

Benefits

    Alternative A, the no action alternative, represents the baseline 
conditions of this rulemaking. Under that alternative, all PWC use 
would be

[[Page 17294]]

prohibited from the park. Alternatives B and C would permit PWC use 
with certain restrictions, and alternative D would permit PWC use as 
currently managed in the park. The benefits of any alternative are 
measured relative to the baseline conditions, which are represented by 
alternative A. Therefore, there are no incremental benefits associated 
with alternative A. The primary beneficiaries of alternatives B, C, and 
D would be the park visitors who use PWCs and the businesses that 
provide services to PWC users such as rental shops, restaurants, gas 
stations, and hotels. Additional beneficiaries include individuals who 
use PWCs outside the park where PWC users displaced from the park may 
decide to ride if PWC use within the park were prohibited. Benefits 
accruing to individual PWC users are called consumer surplus gains, and 
those accruing to businesses are called producer surplus gains. 
Consumer surplus measures the net economic benefit obtained by 
individuals from participating in their chosen activities, while 
producer surplus measures the net economic benefit obtained by 
businesses from providing services to individuals. These benefits, 
projected over a 10-year horizon, are summarized in the table below.

            Present Value of Projected Incremental Benefits Under Alternatives B, C, and D, 2002-2012
                                                    [dollars]
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                                  PWC users          Businesses                          Total
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Alternative B:
    Discounted at 3%.........      74,112,030  2,031,990-11,232,060    76,144,020-85,344,090
    Discounted at 7%.........      59,006,910  1,617,850-8,942,800     60,624,760-67,949,710
Alternative C:
    Discounted at 3%.........     100,580,610  2,477,690-12,863,370    103,058,300-113,443,980
    Discounted at 7%.........      80,080,800  1,972,710-10,241,630    82,053,510-90,322,430
Alternative D:
    Discounted at 3%.........     105,874,320  2,597,680-13,426,400    108,472,000-119,300,720
    Discounted at 7%.........      84,295,580  2,068,240-10,689,900    86,363,820-94,985,480
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Costs

    As with the benefits described above, the costs of any alternative 
are measured relative to the baseline conditions, which are represented 
by alternative A. Therefore, there are no incremental costs associated 
with alternative A. The primary group that would incur costs under 
alternatives B, C, and D are the park visitors who do not use PWCs and 
whose park experiences would be negatively affected by PWC use within 
the park. At Lake Mead, non-PWC uses include boating, canoeing, 
fishing, and hiking. Additionally, the public could incur costs 
associated with impacts from alternatives B, C, and D to aesthetics, 
ecosystem protection, human health and safety, congestion, and non-use 
values. However, these costs could not be quantified for all 
alternatives due to a lack of available data.
    There are other costs associated with alternatives B, C, and D 
relating to NPS enforcement of PWC restrictions. Those costs, projected 
over a 10-year horizon, are summarized in the table below.

 Present Value of Project NPS Enforcement Costs Under Alternatives B, C,
                            and D, 2001-2012
                                [dollars]
------------------------------------------------------------------------
 
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Alternative B:
    Discounted at 3%.......................................    3,523,950
    Discounted at 7%.......................................    2,793,080
Alternative C:
    Discounted at 3%.......................................    4,195,180
    Discounted at 7%.......................................    3,325,090
Alternative D:
    Discounted at 3%.......................................    5,202,030
    Discounted at 7%.......................................    4,123,110
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Quantified Net Benefits

    The quantified net benefits associated with alternatives B, C, and 
D are presented in the table below. These net benefits do not account 
for the costs to non-PWC users, or those relating to aesthetics, 
ecosystem protection, human health and safety, congestion, or non-use 
values due to a lack of available data. Therefore, these net benefit 
estimates do not represent all costs. If all costs could be 
incorporated, the indicated net benefits for each alternative would be 
lower. Nevertheless, these estimates present a likely range of net 
benefits that can be estimated from available information.

Present Value of Quantified Net Benefits Under Alternatives B, C, and D,
                                2002-2012
                                [dollars]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Alternative B:
  Discounted at 3%........................  72,620,070-81,820,140
  Discounted at 7%........................  57,831,680-65,156,630
Alternative C:
  Discounted at 3%........................  98,863,120-109,248,800
  Discounted at 7%........................  78,728,420-86,997,340
Alternative D:
  Discounted at 3%........................  103,269,970-114,098,690
  Discounted at 7%........................  82,240,710-90,862,370
------------------------------------------------------------------------

Summary of Comments

    A proposed rule was published for public comment on September 5, 
2002 (67 FR 56785-94), with the comment period lasting until November 
4, 2002. The NPS received 1,696 timely written responses regarding the 
proposed regulation. Of the responses, 1,636 were form letters in 3 
separate form letter formats and 60 were individual letters. There were 
1,060 electronic mailings. Responses received included 51 from 
individuals, 2 from businesses, 5 from organizations and 2 from public 
agencies.
    Within the analysis, the term ``commenter'' refers to an 
individual, business, or organization that responded. The term 
``comments'' refers to statements made by a commenter.

General Comments

    1. There were a variety of commenters, including the Personal 
Watercraft Industry Association and United States Coast Guard (USCG), 
who

[[Page 17295]]

proposed the flat wake zone should apply to all motorized vessels.
    NPS Response: The National Park Service concurs with the 
commenters. The preferred alternative in the LMP has been modified and 
clearly applies the flat wake zone to all motorized vessels. The 
intention of the flat wake zone is to provide a safe shoreline 
environment for water recreation. The Lake Management Plan has been 
modified based on public comment and consultation with the respective 
states of Nevada and Arizona to read, ``A 200-foot flat wake zone will 
be applied to all beaches occupied by bathers, boats at the shoreline, 
swimmers in the water or persons at the shoreline.'' A future 
rulemaking will extend this provision to all boats.
    2. The PWIA requested that PWC used for water-skiing and 
wakeboarding be permitted to launch from the shoreline like other 
motorized boats.
    NPS Response: The NPS agrees. The intention the Lake Management 
Plan is to afford PWC the same setting for beach starts for water-
skiing purposes as other motorized boats. Persons operating boats would 
need to be at flat wake speed only if they are within 200-feet of a 
beach occupied by bathers, a boat at the shoreline or a person in the 
water or at the shoreline. It is the intention to apply this rule to 
all boats and this will be accomplished with a separate rulemaking as 
described in the preceding comment response.
    3. There were a number of comments stating that restricted PWC use 
should be permitted in Black Canyon.
    NPS Response: The preferred alternative in the final environmental 
impact statement (EIS) has been revised for recreational use of Black 
Canyon, allowing restricted PWC use. The final EIS states, ``In this 
area, temporal zoning would be applied, providing a range of 
recreational settings. The area would be managed for a primitive 
setting two days per week on a year-round basis. Between Labor Day and 
Memorial Day, the area would be managed for a semiprimitive setting 
five days per week. During the summer months between Memorial Day and 
Labor Day, the area would be managed for a rural natural setting with 
only houseboats, waterskiing, and wakeboarding prohibited. PWC use is 
consistent with the rural natural setting. However, due to the narrow 
canyon setting in Black Canyon (zones 8 and 9), PWC use would be 
monitored during this period and restricted if the safety of lake users 
becomes an issue. This would be determined by observed/reported 
conflict information and boating incidents.'' This authorization has 
been specifically included in the final rulemaking.
    4. Numerous commenters stated that the National Park Service is 
suggesting that one type of recreational experience is more meaningful 
than another.
    NPS Response: The NPS disagrees that we place a higher value on a 
one type of recreational experience over another. The implication is 
that we place less value on PWC use than other forms of recreation. The 
Organic Act and the Lake Mead enabling legislation are the standards by 
which the National Park Service manages recreational activities. For 
Lake Mead NRA we have evaluated PWC use and are authorizing their 
continued use throughout 95% of the park waters.
    5. Many commenters believed they should be able to use their USCG 
legal boat in every waterway where similar motorized boating activity 
occurs (i.e. water skiing, wake boarding, speed boating, etc.) They 
suggested the Lake Mead regulation should be based on engine type not 
hull design.
    NPS Response: The National Park Service definition of PWC as noted 
in the draft and final EIS under the ``Purpose of and Need for the 
Plan'' chapter, ``Background'' section under ``Personal Watercraft Use 
Regulatory Background'' is as follows: Personal watercraft refers to a 
vessel, usually less than 16-feet in length, which uses an inboard, 
internal combustion engine powering a water jet pump as its primary 
source of propulsion. The vessel is intended to be operated by a person 
or persons sitting, standing, or kneeling on the vessel, rather than 
within the confines of the hull.
    As presented in the description of the alternatives in the draft 
and final EIS, the National Park Service evaluated and chose the best 
regulatory approach in the preferred alternative in order to maintain 
the opportunities for various types of recreation while protecting the 
resources of the Lake Mead NRA. Some elements of the final EIS modified 
preferred alternative/final rule, such as the proposed recreational 
opportunity zoning, regulate PWC separately from other motorcraft, 
while other aspects, such as the flat wake zone and phase-out of old 
engine technology, regulates engine type instead of hull design.
    6. We received numerous comments citing the Organic Act and the 
mission of the National Park Service to leave the resources and 
wildlife under its care ``unimpaired for the enjoyment of future 
generations.'' We received a number of letters stating, federal law 
clearly prohibits activities that impair or derogate the NPA's 
resources or values.
    NPS Response: The ``Introduction'' section of the ``Environmental 
Consequences'' chapter under ``Summary of Laws and Policies'' in the 
draft and final EIS summarizes the three overarching laws which guide 
the NPS in making decisions concerning protection of park resources. 
These laws, as well as others, are also reflected in the NPS Management 
Policies. In addition, in the ``Methodology'' section under the heading 
``Impairment Analysis,'' the EIS explains how the NPS applied these 
laws and policies to analyze the effects of PWC on Lake Mead park 
resources and values.
    An impairment to a particular park resource or park value occurs 
when in the professional judgment of the responsible NPS manager the 
impact would harm the integrity of park resources or values, including 
the opportunity that otherwise would be present for the enjoyment of 
those resources or values. In making these determinations, the NPS 
managers must consider the provisions of the park's enabling 
legislation. For each resource topic, the draft and final EIS 
establishes thresholds or indicators of magnitude of impact. Should the 
impact approach a ``major'' level of intensity, it is one indication 
that impairment could result. For each impact topic, when the intensity 
approached ``major,'' the team would consider mitigation measures to 
reduce the potential for ``major'' impacts, thus reducing the potential 
for impairment.
    In response to growing concern regarding potential impacts from 
PWC, the National Park Service began an extensive review and regulation 
process. While comments were received opposing continued use of the 
vessel within units of the park system, other comments supported its 
use with certain conditions designed to protect park resources and 
values. Recognizing that some units needed to complete more local 
planning and analysis of impact was needed, the final servicewide PWC 
regulation provided for specified local decision-making on a park by 
park basis.
    The servicewide regulation recognized the need for park areas 
wishing to continue PWC use to undertake and complete an analysis of 
the impacts to park resources and values that could result from 
continued use.
    In the draft and final EIS, three of the four alternatives analyzed 
various PWC scenarios, along with other vessel management and 
recreational objectives. The alternatives also consider means to 
mitigate the effects of PWC on park resources and values, including 
limiting use in areas where management

[[Page 17296]]

objectives strive to create a visitor experience without these vessels 
or where sensitive park resources must be protected. The modified 
preferred alternative in the final EIS includes mitigation measures to 
protect other park users from potential conflicts with PWC (see the 
modified preferred alternative in the ``Environmental Consequences'' 
section of the FEIS), as well as other measures to protect species of 
special concern, water, and air resources.
    The conclusion of the modified preferred alternative in the final 
EIS, was that continued PWC use, would not result in an impairment of 
park resources and values for which the Lake Mead Recreation Area was 
established to protect for future generations.
    7. We received one comment from an individual who suggested we 
establish a Citizens Recreational Taskforce to address the future 
management of recreational use at Lake Mead NRA.
    NPS Response: The rule takes a balanced approach to the management 
of PWC use within Lake Mead NRA. It takes into consideration resource 
impacts, conflicts with other visitors' use and enjoyment and safety 
concerns. It requires promulgation of park-specific regulation which is 
the same regulatory approach the National Park Service has taken to 
manage off-road vehicle use (36 CFR 4.10), aircraft, including 
powerless hang-gliders (36 CFR 2.17), and use of bicycles outside of 
developed areas (36 CFR 4.30(b)). This rule prohibits PWC use in areas 
where their use is inconsistent with the management objectives based on 
the Organic Act, enabling legislation, resources, values, and other 
visitor uses.
    The National Park Service met with a wide variety of user groups 
concerning the management of recreational use of park waters. A listing 
of these meetings and organizations is included in the final EIS. These 
meetings represent the National Park Service approach to seeking 
specific user group input into the planning and decision making 
process. Because the park plans to continue this process, we do not 
think that a citizen's recreational taskforce is necessary.

Comments Related to Socioeconomic Resources

    8. There were one or more commenters who expressed concern for the 
impact of the rule on the local economies of Laughlin/Bullhead City and 
the Las Vegas area.
    NPS Response: The estimates (under alternative C) presented in the 
Economic Analysis of Personal Watercraft Regulations in Lake Mead NRA 
(NPS 2002), use 2012 as engine phase-in date when all two-stroke and 
four-stroke engines would have to become fuel injected, in accordance 
with EPA regulations. This date would cover the current life expectancy 
specified by the Personal Watercraft Industry Association of 5 to 7 
years and the EPA estimate of 10 years. Under alternative C (the 
modified preferred), the National Park Service assumes that, as a 
result of PWC restrictions, businesses could experience a 5% reduction 
in PWC sales, service, and rentals related to the park. Some of this 
impact could occur as a result of engine-type restrictions, but there 
are also geographic restrictions proposed under this alternative that 
were taken into account. However, even under alternative A, as detailed 
in the draft and final EIS, where there would be a 100% reduction in 
PWC revenues related to the park, the impact on the regional economy 
would be very small, less than 0.1% of total economic activity.
    The National Park Service expects that by 2012, most boat owners 
would already be in compliance with the 2006 EPA marine engine 
standards. The impact from the engine standards on boat owners is 
expected to be minimal. PWC manufacturers currently offer some models 
that are compliant with EPA's 2006 standards and PWC purchased after 
2006 would be made compliant. Because the life of a PWC is estimated at 
5 to 10 years (see final EIS, the ``Introduction'' section in the 
``Purpose and Need for the Plan'' chapter), it is expected that the 
majority of noncompliant PWCs would no longer be in operation when the 
engine restrictions proposed under alternative C take effect in 2012. 
In addition, according to industry reports, it appears that the trend 
for conversion is toward the four-stroke model engines instead of 
direct injection two-stroke models. According to the PWIA, the two top 
selling PWC models for 2002 incorporated the four-stroke technology. 
Also, in discussions with PWC retailers in the vicinity of Lake Mead, 
NPS has been informed that the majority of new PWC purchases have been 
four-stroke engines.
    It may be reasonable to assume that people shopping before 2006 for 
new watercraft would only consider purchasing those models with 
compliant engines in response to the public announcement that only 
2006-compliant engines would be allowed at Lake Mead NRA after 2012. It 
is the NPS intention that the 10-year advance notice will provide ample 
opportunity for people to consider engine compliance when making a 
purchase.

Comments Related to Safety and Visitor Conflicts

    9. There were numerous comments stating that ``much attention has 
been given to so-called `cleaner and quieter' PWC.'' They say these 
machines do not solve all problems associated with the PWC and cite 
recent research studies that find that the new technology emits as much 
or more carbon monoxide and nitrogen oxide.
    NPS Response: The NPS agrees that the new technology will not solve 
all the problems, but they do provide major improvements in a number of 
areas specifically in air quality and water quality. Although the 
cleaner four-stroke and two-stroke direct injected engines will emit 
more nitrogen oxide due to a higher ratio of fuel actually being 
burned, they emit less hydrocarbons, which reduces the likelihood of 
ozone formation. The newer engine technology will not reduce impacts to 
wildlife from factors such as noise or use of the craft in close 
proximity to wildlife but this problem is common to all vessels to 
various extents. However, phasing in of the new technology would reduce 
impacts to aquatic and shoreline species by greatly reducing the 
discharge of fuel components such as benzene, toluene, ethyl benzene, 
and BTEX into the water as stated in the draft and final EIS in the 
``Methodology'' section in the ``Environmental Consequences'' chapter.
    The safety record of PWC at Lake Mead can be improved by measures 
such as boater safety education. The preferred alternative in the draft 
EIS and the modified preferred alternative in the final EIS proposes a 
requirement of boater safety training for all vessel operators born 
after 1983. States such as California report operator inexperience as 
the leading cause of PWC-related accidents (NTSB 1998). Boater 
education incorporating PWC-specific instruction has been shown to 
reduce PWC accidents in Connecticut and Michigan (NTSB 1998).
    The industry's conversion to the four-stroke technology and the use 
of resonators is reducing the noise. Manufacturers are using noise 
absorbing foam and rubber padding in the construction of PWCs. 
Consequently, the newer technology used in PWC construction is 
addressing noise concerns and improvements are being observed at Lake 
Mead NRA.
    10. There were additional comments concerning the safety record of 
PWC.

[[Page 17297]]

    NPS Response: Safety is an issue for all boaters, including PWC 
users. Boating safety issues for the Lake Mead NRA are described in the 
``Recreational Use of the Lake'' section of the ``Affected 
Environment'' of the FEIS. Under the modified preferred alternative, 
unified boating laws for Lake Mead and Lake Mohave are proposed, 
including the requirement of boater safety education for any boater 
born after 1983. When applicable, the operator of a boat/vessel would 
be required to have in his/her possession, proof of completion of a 
safety course meeting the requirements of the National Association of 
Boating Law Administrators while operating a boat/vessel.
    Safety is further addressed under the modified preferred 
alternative in the final EIS, where a 200-foot flat wake zone would 
apply to beaches occupied by swimmers, boats at the shoreline, and 
people at the shoreline or in the water. Coordination with the states 
of Nevada and Arizona would be required in order to achieve the desired 
uniformity of the proposed boating regulations.
    When implemented, these safety measures would increase the safety 
of participating in all forms of recreation at Lake Mead NRA. 
Consequences of the preferred alternative in relation to PWC safety are 
described in the ``Environmental Consequences'' section of the draft 
and final EIS.
    11. We received comments that cited user conflicts. Specific 
incidents included conflicts between PWC and kayakers, fishermen, and 
swimmers. A few PWC supporters said these conflicts resulted from a 
minority of inconsiderate PWC operators and that we should regulate 
inappropriate behavior or enforce existing regulations rather than 
prohibit PWC use.
    NPS Response: The National Park Service is pursuing specific 
measures to provide a safe shoreline environment and to minimize 
conflict between user groups. Specifically, a 200-foot flat wake zone 
is proposed around beaches occupied by bathers, boats at the shoreline 
and people in the water or at the water's edge. This rule is designed 
to improve the shoreline environment on both reservoirs.
    In addition, 5% of the park waters have been zoned as primitive or 
semiprimitive where the management objectives are for a more quiet and 
tranquil setting. Visitors seeking this environment can visit these 
areas with some expectation of slower speeds and quieter boat 
operations. In these areas PWCs are prohibited and other boating use 
will be limited to flat wake speeds and/or electric trolling motors.

Comments Related to the Phaseout of Carbureted Two-Stroke Engines

    12. Some commenters cited the inefficiency of the carbureted two-
stroke engines.
    NPS Response: We are concerned about pollution in any form, and 
exhaust gasses from two-stroke marine engines is no exception. We 
recognize that a certain amount of exhaust smoke and smell is inherent 
with any two-cycle engine and that the comments addressed excessive 
amounts from PWC. We acknowledge the findings of the Environmental 
Protection Agency's (EPA) 1991 study that indicate two-stroke engines 
lose roughly 25% of the fuel they consume unburned into the water, 
resulting in high levels of hydrocarbon emissions from these engines. 
The excessive smoke and smell from PWC could be attributed to unique 
operational characteristics of those vessels. PWCs are often operated 
with throttle settings that transition from idle to full throttle and 
back to idle, typically in a rapid and repeated sequence. In response 
to these concerns, the rule will phase out the carbureted two-stroke 
engines over a 10-year period.
    13. There were comments that suggested the 2012 prohibition on 
carbureted two-stroke engines is unnecessary.
    NPS Response: As noted in alternative C in the draft and final EIS, 
two-stroke PWC and outboard vessels would be barred from Lake Mead NRA 
beginning in 2012 as a result of the prohibition on carbureted two-
stroke engines. However, even with the increasing availability of new 
technology four-stroke and direct injection two-stroke engines, it is 
estimated by EPA that by 2012, they would only comprise approximately 
50 percent of PWC in use at that time.
    According to the Personal Watercraft Industry Association, PWC 
models on the market today include the new technology reduced-emissions 
vessels (http://www.pwia.org facts--release.htm#qa) and the two top 
selling models in 2002 were four-stroke models. The NPS has also 
learned in discussion with local PWC retailers that the majority of new 
PWC purchases have been four-stroke engines. The industry shows this 
trend, combined with the relatively short operating life of PWC, which 
range from 5 to 10 years (depending on the source), would result in 
only a small number of PWC users who would be displaced when the 
restrictions go into effect. The NPS hopes the industry prediction is 
correct. But if less than 100% of the PWCs in 2012 are the new 
technology reduced emission PWCs, then the PWC restriction will take 
effect and ensure that the resources of the park will be protected.

Comments Related to General Environmental Impacts

    14. Some commenters were concerned that the Service often lacks 
site-specific studies upon which to base a sound judgement on PWC use 
at Lake Mead. The commenters also pointed out that the National Park 
Service appears to overlook important studies which detail the damage 
these machines cause to the environment and wildlife.
    NPS Response: The NPS utilized site specific studies to evaluate 
air quality, water quality, cultural resources and visitor use in the 
LMP/FEIS. Shoreline vegetation in this arid setting is primarily 
composed of exotic salt cedar so site specific inventories were limited 
to sensitive inflow areas. Specific studies were not initiated for the 
wildlife and soundscape analyses.
    The NPS determined that site-specific studies of PWC impacts on 
wildlife were not necessary given the limited extent of native 
shoreline vegetation and its limited value to wildlife. As stated in 
the ``Natural and Cultural Resources'' section of the ``Affected 
Environment'' chapter of the draft and final EIS ``* * * the majority 
of the shoreline in the recreation area contains nonnative salt cedar 
(Tamarix spp.), with relatively few areas supporting native vegetation. 
Fluctuating water levels along the shoreline make restoration of 
vegetation communities impossible in most situations.''
    In those few areas where there is shoreline habitat that is 
valuable for wildlife, such as in the willow scrub inflow areas of the 
Virgin and Muddy Rivers where neotropical migratory songbirds 
potentially nest, primitive and semiprimitive zones are proposed under 
the modified preferred alternative which would prohibit PWC use, 
waterskiing, and wakeboarding. Given the overall lack of wildlife 
habitat along most of the remainder of the National Recreational Area's 
shoreline, and the fact that PWC would be prohibited in the few areas 
that are deemed valuable for wildlife, the park has identified 
sensitive vegetation and shoreline habitat and has incorporated 
appropriate mitigation measures into the modified preferred alternative 
in the final EIS. Regarding fisheries of Lake Mead NRA, the modified 
preferred alternative in the final EIS proposes to use temporal 
shoreline zonings to

[[Page 17298]]

reduce and/or prevent impacts to shallow water spawning areas.
    The U.S. Fish and Wildlife Service Biological Opinion is included 
in the final EIS in Appendix F. The biological opinion has concurred 
with the National Park Service determination that the preferred 
alternative is not likely to jeopardize the continued existence of the 
Southwestern willow flycatcher, bonytail chub, razorback sucker, or 
desert tortoise, and is not likely to destroy or adversely modify 
designated critical habitat for bonytail, razorback, or tortoise. In 
addition, the U.S. Fish and Wildlife Service agreed with the 
determination of no effect on the bald eagle and Yuma clapper rail. The 
mitigation adopted under the modified preferred alternative in the 
final EIS includes measures to protect spawning and nesting areas.
    There is no definitive literature describing scientific 
measurements of PWC noise (see DEIS, p. 144). To address this lack of 
scientific data, the National Park Service contracted noise 
measurements of motorized vessels, including PWC, at Glen Canyon in 
2001. The noise source data from this study was used in the Lake Mead 
draft and final EIS soundscape analysis because the results were not 
dependent upon or influenced by park geology or other environmental 
factors.
    At Glen Canyon, sound measurements were made of a number of boats 
and PWC as they passed by a microphone mounted above the front of an 
instrumented boat. As stated in the technical report (NPS, 2002 or 
HMMH, 2002--Draft Technical Report on Noise: Personal Watercraft and 
Boating Activities at Glen Canyon National Recreation Area), controlled 
pass-by measurements of three PWC and one motorboat were conducted at 
several different speeds. Many boats and PWC were also randomly 
measured. In all cases, a radar gun was used to determine speed and a 
laser range finder was used for distance. After normalizing 
measurements to a common distance, maximum sound levels were computed 
both for 15 and 25 meters, the distance at which National Park Service 
watercraft noise emission regulations apply. One of the conclusions 
from the measurements at Glen Canyon was that, except for the boats 
with V-8 engines (which were louder), no significant differences were 
found in the sound levels produced by PWC and the other boats that were 
measured in the study.

Comments Related to Water Quality

    15. Some comments expressed concern about the amount of raw fuel 
spilled into the water or on the shoreline when PWC were refueled by 
owners/operators at sites other than fuel docks.
    NPS Response: The refueling of boats at the shoreline is legal. 
Illegal refueling occurs when the refueling results in the pollution or 
contamination of park waters. As noted in the final EIS under 
alternative C, ``Resource Protection'' section, the spillage of fuel 
during shoreline operations is a concern at Lakes Mead and Mohave. 
Polluting or contaminating park waters during refueling, including fuel 
spillage, is a citable offense under 36 CFR, 2.14(a)(6). Safe refueling 
practices need to be included in boating safety courses. The National 
Park Service will recommend the States of Nevada and Arizona include 
these procedures as part of the boating education curriculum.
    16. A single commenter stated, the proposed rule, at page 56790, 
states that ``based on fuel consumption estimates, between 1\1/2\ and 3 
gallons of fuel is discharged into the water during a two-hour ride on 
a PWC.'' The rule goes on to say that during the summer weekends in 
high use areas, there are as many as 1,700 PWCs on the lakes, which 
``could result in 1,275 and 3,400 gallons of unburned fuel discharged 
per hour into Lakes Mead and Mohave combined.'' The commenter goes on 
to say that these statements are nonsense and supported by no technical 
information.
    NPS Response: The National Park Service is concerned about 
pollution in any form and exhaust gasses from two-stroke marine engines 
is no exception. We recognize that a certain amount of exhaust smoke 
and smell is inherent with any two-stroke engine and that the comment 
addressed excessive amounts from PWC. We acknowledge the findings of 
the Environmental Protection Agency's (EPA) 1991 study that indicate 
two stroke engines lose roughly 25% of the fuel they consume unburned 
into the water, resulting in high levels of hydrocarbon emissions from 
these engines. The smoke and smell from PWC could be attributed to 
unique operational characteristics of those vessels. PWC are often 
operated with throttle settings that transition from idle to full 
throttle and back to idle, typically in a rapid and repeated sequence. 
These are the basis for the above analysis. While some PWC are 
converting to the new technology, the percentage of the PWC fleet has 
not yet made the conversion to the more efficient models. Consequently, 
the calculation of the potential discharge is valid.
    17. One comment stated, the primary water quality concern that has 
been identified regarding continued PWC use is the discharge of 
unburned gasoline and gasoline additives from conventional carbureted 
two-stroke engines, as well as the spilling of such components during 
refueling (National Park Rulemaking at page 56790, DLMP/EIS (Lake 
Management Plan/Draft EIS) at pages 102, 133, 124, 188). PWC emissions 
in the Lake Mead area have already been reduced 25% below the 1998 
baseline conditions.
    NPS Response: We agree that water quality impacts from PWC and 
other carbureted two-stroke engines have declined since 1998 due to the 
conversion of carbureted two-stroke engine technology to cleaner 
technology. However, our goals for the reduction of emissions cannot be 
achieved without the proposed 2012 restrictions.
    The final EIS addresses impacts from PWC use as well as all 
watercraft on Lake Mead and Lake Mohave. Four alternatives were 
analyzed. Alternative A would continue the prohibition of use of PWC in 
the Lake Mead NRA. Alternative B would prohibit all carbureted two-
stroke engines beginning in 2004. Alternative C assumes a ban on two-
stroke carbureted engines for all vessels, including PWC, after 2012. 
Alternative D assumes that no ban would take place and that two-stroke 
engines would be converted in accordance with the Environmental 
Protection Agency's assumptions (40 CFR parts 89-91, ``Air Pollution 
Control; Gasoline Spark-Ignition and Spark-Ignition Engines, 
Exemptions;'' rule, 1996). Alternative C (the modified preferred 
alternative) is compared to alternative D because alternative D allows 
for a mix of older model-two stroke carbureted engines with the EPA 
compliant cleaner engine models (two stroke fuel injected and four 
stroke engines) through the life of the plan. A brief summary of the 
analysis of surface water quality impacts to Lakes Mead and Mohave 
found in the Final EIS for alternatives C and D are described below.
    The approach to evaluating surface water quality impacts is found 
in Appendix G of the Final EIS. Engine conversion, restriction by 
engine type, and the total boating capacity used to calculate impacts 
varies between alternatives C and D. Alternative C uses a combined 
total boating capacity of boats for both Lakes Mead and Mohave of 5,055 
boats at one time, while alternative D uses a combined total boating 
capacity of 5,800 boats at one time. These boating capacities reflect 
the heaviest use period of the summer. The threshold volumes required 
to meet water quality standards at Lake Mead

[[Page 17299]]

under alternative C are 48% less than alternative D in 2012. The 
threshold volumes required to meet water quality standards at Lake 
Mohave under alternative C are 61% less than alternative D in 2012 
because of the combination of fewer boats on the water in alternative C 
and the ban on two-stroke carbureted engines after 2012. Complete 
results of the water quality analysis are found in the water quality 
section of the Environmental Consequences section of the Final EIS and 
in appendix H of the Final EIS.

                  Impacts of All Watercraft on Surface Water Quality--Threshold Volume of Water Needed to Meet Water Quality Standards
                                                                     [In acre-feet]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Ecological benchmark                                      Arizona           Human health criteria
                 ---------------------------------------------------------------------------------------  standards for  -------------------------------
                                                                                                               fish
                                                                                                           consumption
    Alt/Year      Benzo (a)pyrene                           1-methyl                                    ----------------- Benzo (a)pyrene
                     (fuel and         Naphthalene         Naphthalene        Benzene          MTBE      Benzo (a)pyrene      (fuel and       Benzene
                      exhaust)                                                                               (fuel and        exhaust
                                                                                                             exhaust)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Lake Mead
                                 (assuming minimum pool elev. 1,150 feet, volume above thermocline 2,085,000 acre-feet)
--------------------------------------------------------------------------------------------------------------------------------------------------------
        C-2004            4,047               1,602               4,554          1,836             58           28,331           12,878        198,900
        D-2004            4,593               1,818               5,167          2,083             66           32,149           14,613        225,702
        C-2012            1,754                 694               1,973            795             25           12,275            5,580         86,179
        D-2012            3,371               1,334               3,793          1,529             48           23,597           10,726        165,662
-----------------
                                                                       Lake Mohave
                                   (assuming minimum pool elev. 634 feet, volume above thermocline 687,800 acre-feet)
--------------------------------------------------------------------------------------------------------------------------------------------------------
        C-2004            3,352               1,326               3,771          1,520             48           23,461           10,664        164,706
        D-2004            3,925               1,553               4,416          1,780             56           27,473           12,488        192,874
        C-2012            1,035                 410               1,165            470             15            7,247            3,294         50,877
        D-2012            2,652               1,049               2,983          1,203             38           18,561            8,437        130,307
--------------------------------------------------------------------------------------------------------------------------------------------------------

    18. One commenter stated, EPA has confirmed that studies show most 
unburned gasoline and gasoline additives emitted from two-stroke marine 
engines evaporate from water within the first hour and 15 minutes after 
they are released. More specifically, at 86 degrees Fahrenheit 84% of 
the unburned gasoline/additive mix released into the water evaporated 
within 75 minutes.
    NPS Response: We generally agree with this comment. The commenter 
includes a quantitative discussion of the volatility of many of the 
components found in gasoline and gasoline additives emitted from 
carbureted two-stroke engines. As stated in the Final Environmental 
Impact Statement, many organic pollutants that are initially dissolved 
in the water volatilize to the atmosphere, especially if they have high 
vapor pressures, are lighter than water, and mixing occurs at the air/
water interface (Final EIS, Methodology section, under Water Resources, 
Assumptions for Evaluating Impacts from Marine Engines, Including 
Personal Watercraft). Therefore, NPS analyses accounts for evaporative 
rates in its methodology and believes it has accurately portrayed 
potential effects to water quality.
    19. There were a number of commenters concerned that the changeover 
to four-stroke and two-stroke direct injection PWC engines to meet the 
requirements of the EPA 2006 and CARB 2008 emission standards is 
occurring much more rapidly than EPA and National Park Service has 
estimated. Amounts of unburned fuel released at Lake Mead and Lake 
Mohave will accordingly continue to decline rapidly, achieving a 
reduction of approximately 90% from the 1998 baseline levels by 2012.
    NPS Response: In the water quality analysis presented in the Final 
EIS, the assumption was made that clean technology engines (any engine 
not using carbureted two-stroke technology) would be 90% cleaner than 
the carbureted two-stroke engines. Under alternative C, conversion to 
all clean technology engines would be completed by 2012, while 
alternative D uses the rate of conversion of the engines from 
carbureted two-stroke to clean engines consistent with the EPA rule, 
``Final Rule for New Gasoline Spark-Ignition Marine Engines'' (US EPA, 
1996). The NPS used the EPA data where it was assumed that 21.6% of the 
carbureted two-stroke engines in use in 1998 would be replaced by 2004 
and that 58.4% would be replaced by 2012. One of the commenter's 
(Personal Watercraft Industry Association) assertion is principally 
based on confidential, proprietary PWC sales and forecast data prepared 
by PWC manufacturers. This proprietary data was not supplied with the 
comment, and therefore has not been available to the NPS.
    The commenter states that the data indicates that the conversion of 
PWC models to cleaner engines is occurring more rapidly than 
anticipated in the 1996 EPA analysis of the effects of the conversion 
rule. While the National Park Service has no reason to doubt that PWC 
conversions and sales may be proceeding at a greater rate than forecast 
by EPA, there is no survey or similar data available at this time that 
indicates that the engine mix at Lake Mead is proceeding at a faster or 
slower rate than the EPA forecast. Therefore, use of the EPA rates is 
considered appropriate in disclosing potential impacts to water 
quality.
    20. One commenter stated the National Park Service committed to 
investigate the extent of oil and gas spills at refueling operations in 
the Lake Mead NRA, and to mitigate the impacts from these activities. 
This will further reduce the amount of unburned fuel released into the 
waters of the Lake Mead NRA from PWC use. Expected

[[Page 17300]]

reductions in PWC emission of unburned fuel and mitigation to limit 
spills from refueling operations will serve to alleviate any continuing 
concern regarding the possibility of surface oil sheen in areas of 
concentrated boating activity.
    NPS Response: As stated in the Final EIS in the Environmental 
Consequences section, under Impacts of Alternatives A, B, C, and D, 
Water Resources, Impacts, the National Park Service provides best 
management practices for the handling of fueling areas and boat 
maintenance for concessioners and the boating public. The purpose of 
these practices is to reduce the pollutants entering the lakes due to 
fueling and boat maintenance activities. With the management 
requirements and public education reducing the levels of these impacts, 
the impacts would be expected to be minor. NPS has agreed to evaluate 
the operations of all fueling facilities on Lakes Mead and Mohave.
    21. One commenter was concerned that the USGS sampling data showed 
the presence of the gasoline additive MTBE. The federal government, 
Nevada or Arizona have not established standards or maximum contaminant 
levels for MTBE. EPA has adopted an advisory level of 20-40 [mu]g/l for 
drinking water. The highest sample measured by USGS was 4.16 [mu]g/l, 
well below this EPA advisory level. The reduction in PWC engine 
emissions (as well as emissions from other marine engines) at Lake Mead 
since the sample was measured in 1999 is not likely to be repeated.
    NPS Response: The water intake that delivers drinking water to the 
Las Vegas Valley is located at an elevation of 1,050 feet above mean 
sea level in Lake Mead, while the elevation of the lake surface is 
usually above 1,180 feet. This puts the intake at a depth of 130 feet 
or more. Gasoline compounds have not been detected in water samples 
regularly taken near the water intake by staff of the Southern Nevada 
Water System. In addition, the testing at water intake facilities has 
shown that levels of these compounds do not exceed advisory standards.
    In the analysis presented in the Final EIS in Table 50, Toxicity 
Benchmarks, the ecological benchmark for MTBE, which is considered 
preliminary chronic water quality criteria, of 51,000 [mu]g/l was used. 
The table found in response to Comment Number 17 shows a negligible 
impact from MTBE under the modified preferred alternative (alternative 
C) and the baseline (alternative D). We are aware California has 
mandated removal of MTBE from gasoline by next year, and the EPA is 
considering doing the same within the near future.
    22. One commenter is concerned that recent studies show that PAH 
emissions might increase as carbureted two-stroke PWC engines are 
replaced by direct injection two-stroke models and that increased PAH 
emissions will have adverse impacts on aquatic organisms in the Lake 
Mead NRA. The Kado study measured only PAH air emissions from the test 
chamber while the outboard engine ran in a water tank. The study says 
nothing about what levels of PAHs were deposited in water. It therefore 
can provide no basis whatsoever for suggesting that the use of current 
and future direct injection two-stroke PWC engines present a risk to 
aquatic organisms or will impair water resources in the Lake Mead NRA.
    NPS Response: PAHs were addressed in the draft and final EIS in the 
issues and impact topics and water quality section of Environmental 
Consequences. Text in the draft EIS impact analysis (alternatives B, C 
and D) was changed in the final EIS to read, ``* * * changing from 
carbureted two-stroke engines to two-stroke fuel-injected engines may 
result in increases of airborne particulate-associated PAH. Further 
research, outside the scope of this planning effort, is needed to 
identify what impact this would have on PAH concentrations in water.'' 
However, the preferred alternative, which bans two-stroke carbureted 
engines after 2012, would greatly reduce the impact of petroleum 
emissions on water quality. PWC would contribute 19% of total 
hydrocarbon pollution in Lake Mead in 2012. Given the volume of 
available water in Lake Mead for mixing these compounds, NPS concludes 
the impact to water quality and aquatic organisms is minor and would 
not result in impairment to park resources.
    In addition, according to industry reports, it appears that the 
trend for conversion is toward the four-stroke model engines instead of 
direct injection two-stroke models. According to the PWIA, the two top 
selling PWC models for 2002 incorporated the four-stroke technology, 
which have shown to produce fewer PAH emissions. Also, in discussions 
with PWC retailers in the vicinity of Lake Mead, NPS has been informed 
that the majority of new PWC purchases have been four-stroke engines. 
If this trend in sales is realized and it continues, PAH emissions 
would be less than indicated in the analysis.

Comments Related to Air Quality

    23. One commenter stated the National Park Service analysis does 
not reflect the dramatic decrease in PWC hydrocarbon plus nitrogen 
oxides (HC+NOX) emissions projected to occur over the next 
ten years that strongly suggests that the National Park Service's 
proposed ban on the use of carbureted two-stroke models after 2012 is 
unnecessary.
    NPS Response: As part of the Final Environmental Impact Statement 
(EIS) for the Lake Management Plan, the National Park Service prepared 
a quantitative analysis of air quality impacts for each of the proposed 
alternatives. The Final EIS analysis addressed emissions of all 
watercraft, including PWC, on Lakes Mead and Mohave. Four alternatives 
were analyzed. Alternative A would continue the prohibition of PWC in 
the Lake Mead NRA. Alternative B would prohibit all carbureted two-
stroke engines beginning in 2004. Alternative C assumes a ban on two-
stroke carbureted engines for all vessels, including PWC, after 2012. 
Alternative D assumes that no ban would take place and that two-stroke 
engines would be converted in accordance with the Environmental 
Protection Agency's assumptions (40 CFR parts 89-91, ``Air Pollution 
Control; Gasoline Spark-Ignition and Spark-Ignition Engines, 
Exemptions;'' rule, 1996 ). The Final EIS emission projections for HC 
and NOX for alternatives C and D are shown in the table 
below. Emission forecasts for other pollutants and for alternatives A 
and B are included in the Final EIS.

[[Page 17301]]



                                      Estimated Hydrocarbon and Nitrogen Oxides Emissions for Alternatives C and D
                                                                     [Tons per year]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Alternative C 1                           Alternative D 2                  Difference 3
                                                --------------------------------------------------------------------------------------------------------
                                                         2004                 2012                 2004                 2012                 2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent of carbureted two-stroke engines                      21.6%                 100%                21.6%                58.4%
 replaced......................................


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    All                  All                  All                   All                  All
                   Pollutant                    watercraft    PWC    watercraft    PWC    watercraft     PWC    watercraft    PWC    watercraft    PWC
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hydrocarbons (HC).............................        904       689        360       199        918        701        659       467        299       268
Nitrogen oxides (NOX).........................        159        16        186        40        161         16        174        28        -12       -12
HC+NOX........................................       1063       705        546       239       1079        717        833       495        287      256
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Alternative C (modified preferred alternative): After 2012, all boats on the lakes would be compliant with the EPA 2006 emission standards.
\2\ Alternative D (baseline alternative): By 2012, 58.4% of carbureted two-stroke engines on the lakes would be compliant with the EPA 2006 emission
  standards. Using EPA's assumptions, by 2025, 75% of engines on the lakes would be compliant with the EPA emission standards.
\3\ Difference between alternative C and alternative D in 2012. Negative values indicate an increase in NOX emissions.

    Note that in 2004 the conversion of carbureted two-stroke engines 
to cleaner engines is assumed to be the same for both alternatives C 
and D, but the emissions for alternative D would be higher than for 
alternative C. This would occur because alternative D would allow more 
watercraft to be in operation, compared to alternative C. The important 
result shown in the above table is that in 2012, alternative C would 
result in 287 fewer tons per year of HC+NOX than alternative 
D. Alternative C proposed elimination of these annual emissions through 
the life of the plan (2003 through 2023) would be a significant 
contribution to the efforts to reduce ozone concentrations in the 
region. This is because even though the cleaner four-stroke and two-
stroke direct injected engines will emit more NOX due to a 
higher ratio of fuel actually being burned, they emit less hydrocarbons 
which reduces the likelihood of ozone formation.
    Emission levels shown in the table above are not directly 
comparable with the emission levels submitted by the commenter because 
the National Park Service--Air Quality Division calculates emissions on 
an annual basis, and the commenter's calculations are for an average 
boating day during the boating season. Some assumptions made for 
National Park Service calculations are more conservative than those 
used for commenter's calculations. The National Park Service assumed 
that the conversions from carbureted two-stroke engines to cleaner 
engines would occur at the rate forecast by the Environmental 
Protection Agency. As shown in the table above for tons per year of 
estimated hydrocarbon and nitrogen oxides emissions for alternatives C 
and D, 21.6% conversion is assumed from 1998 levels by 2004, and 58.4% 
conversion by 2012. The commenter assumes a faster conversion. The 
commenter assumes that emissions would be reduced because a significant 
portion of PWC would be cleaner than EPA requirements due to compliance 
with the more restrictive California requirements. However, our goals 
for the reduction of emissions can not be achieved without the proposed 
2012 restrictions.
    24. One commenter expressed concern that PWC emissions are 
declining faster than forecast by the EPA. The existing fleet of PWC 
has achieved a 25% reduction in the pre-1999 baseline of 
HC+NOX emissions, and will achieve over an 80% reduction by 
2012.
    NPS Response: The comment is principally based on two assumptions 
made by the commenter. The first is based on confidential, proprietary 
PWC sales and forecast data prepared by PWC manufacturers. No 
supporting data was supplied with the comment. The commenter states 
that the data indicates that the conversion of PWC models to cleaner 
engines is occurring more rapidly than anticipated in the 1996 EPA 
analysis of the effects of the conversion rule. While the National Park 
Service has no reason to doubt that PWC conversions and sales may be 
proceeding at a greater rate than forecast by EPA, there is no survey 
or similar data available at this time indicating the engine conversion 
at Lake Mead is proceeding at a faster or slower rate than the EPA 
forecast. Therefore, use of the EPA rates is considered appropriate--
and use of an accelerated rate may be considered speculative without 
additional supporting data.
    The second assumption by the commenter is that 75% of the PWC at 
Lake Mead will have engines that comply with the California (CARB) 
conversion rule for all years, which requires that marine engine 
emission reductions targeted by the EPA for 2006 be achieved in 
California by 2001. The California rule then requires further emission 
reductions by 2004 and 2008 (title 13, California Code of Regulations, 
sections 2440-2448). The commenter assumes that 50% of the PWC users at 
Lake Mead will be from California and all will have CARB-compliant 
watercraft, and that, because of manufacturing and sales efficiencies 
outside of California, an additional 25% of the Lake Mead PWC users 
will have CARB-compliant watercraft. The National Park Service concurs 
that many watercraft users at Lake Mead have California-registered PWC, 
and that they will meet the California Air Resources Board standards.
    There is no data relative to PWC at Lake Mead to confirm the 75% 
figure assumed by the commenter. The National Park Service emissions 
calculations are conservative only in the sense that it does not 
specifically account for watercraft that have already or will be 
converted to meet California Air Resources Board standards. This is not 
considered ``overly'' conservative because 50% of the park visitors 
originate from California, and a certain percentage of these visitors 
will have PWC that are compliant with the EPA 2006 rule. There is 
currently no data to support or refute this 75% estimate. Under the 
preferred alternative, the engines would be 100% compliance after 2012.
    25. One commenter stated that PWC emissions of HC+NOX at 
Lake Mead during the boating season were 3.9 tons per day prior to 
1999, and are estimated at 2.9 tons per day for 2002 and 0.7 tons per 
day in 2012. Clark County, Nevada emissions are estimated at 450 tons 
per day. Therefore, PWC emissions at Lake Mead pose no public health 
risks.
    NPS Response: The NPS-estimated emissions are a small fraction of 
Clark

[[Page 17302]]

County emissions. The NPS-estimated emissions are on the same order of 
magnitude as those presented by the commenter, even though the NPS 
estimates a larger amount of emissions. The argument that a single 
source has negligible impact because of its small size compared to all 
the sources in the region is not valid. This point was effectively 
stated in Kings County Farm Bureau v. City of Hanford, a 1990 
California case that has been widely publicized and used in subsequent 
environmental analyses. The Kings County case also addressed the 
impacts of ozone-forming pollutants, and emphasized that each source is 
important when considering cumulative impacts.
    Clark County is currently in attainment of the federal 1-hour ozone 
standard. The EPA has not yet made attainment designations for the 8-
hour ozone standard that was promulgated in 1997 but was delayed by 
litigation in implementation. Preliminary data indicates that Clark 
County might not attain the 8-hour ozone standard (http://www.epa.gov/ttn/naaqa/ozone/areas/maps/nv8hr.gif). Therefore, reduction of 
emissions from all sources in the county is an issue.
    As shown in the previous responses, the proposed elimination of 
two-stroke carbureted engines from Lake Mead NRA after 2012 would 
result in a substantial reduction in emissions, and would contribute to 
the improvement of air quality in Clark County.
    26. National Park Service notes that recent studies suggest 
changing from two-stroke carbureted to two-stroke direct injection PWC 
engines might increase PAH emissions. A study by Norman Y. Kado et al, 
Airborne Particle Emissions from 2- and 4-stroke Outboard Marine 
Engines: Polycyclic Aromatic Hydrocarbon and Bioassay Analysis, (Kado 
study) quantified PAH concentrations in airborne particulate emissions. 
The Kado study showed that the PAH emissions from the direct-injected 
two-stroke engines tested were greater than from carbureted two-stroke 
engines. The direct-injected two-stroke outboard engine used in that 
study was a 1999 model and represented very early technology, and the 
results of the study are not applicable to newer model direct-injection 
outboard engines, much less PWC engines.
    NPS Response: The commenter rejects the applicability of the Kado 
study to newer engines including PWC engines. However, since no 
comparable data for newer engines was presented, and many older engines 
would be allowed to operate at the recreation area through 2012, the 
Kado study is relevant. NPS acknowledges in the final EIS that further 
research is needed to identify what effect the conversion of two-stroke 
carburated engines to two stroke fuel injected engines would have on 
PAH concentrations in water.
    In speaking with local PWC businesses the NPS was informed that the 
majority of newer PWC models being sold are four-stroke engines, not 
two-stroke fuel injected engines, but no specific data is available. 
These comments concerning four-stroke sales are consistent with 
statements made by PWIA that nationally the two top-selling PWC models 
are four-stroke models. Nevertheless, while conversion of some 
carbureted two-stroke engines to direct-injected two-stroke engines 
would result in increased PAH emissions, the concurrent conversion to 
four-stroke engines would result in reduced PAH emissions. As shown by 
the commenter, using Kado data, the combined PAH emissions of one 
direct-injected two-stroke engine and one four-stroke engine would be 
slightly less than the PAH emissions of the two carbureted two-stroke 
engines that would be replaced. Therefore, the increase or decrease of 
PAH emissions as carbureted two-stroke engines are converted to cleaner 
engine types would depend on the relative numbers of the types of 
cleaner engines. The speculation of the mix of engine types would not 
appreciably change NPS conclusions made in the final EIS.
    27. Continued PWC use on Lake Mead under the proposed rule will not 
pose any adverse health risks for park visitors under even the ``worst 
case'' airborne PAH concentrations that could theoretically be 
generated by the vessels.
    NPS Response: A relevant study concluded that there are some health 
effects associated with PAH emissions. (See Environmental and 
Occupational Exposure to Toxic Air Pollutants from Winter Snowmobile 
Use in Yellowstone National Park (Kado, Kuzmicky, and Okamoto)). 
Therefore the NPS cannot support a conclusion as the commenter 
suggests, that PWC use at Lake Mead would pose no adverse health risks 
from toxic air pollutant emissions; however the final EIS does 
acknowledge that the impact would likely be minor.

Comments Related to Wildlife and Wildlife Habitat

    28. One commenter questions the occurrence of the Southwestern 
willow flycatcher at the inflow areas of the Muddy and Virgin Rivers 
and stated that no Southwestern willow flycatchers nest within Lake 
Mead NRA.
    NPS Response: Southwestern willow flycatchers have been recorded 
within Lake Mead NRA, and are known to nest in certain areas. 
Monitoring has been conducted by the San Bernardino County Museum, the 
Bureau of Reclamation, and the National Park Service. The most recent 
published report (McKernan and Braden 2002) for the 2001 field season 
found flycatchers at the Virgin River-Lake Mead delta. In addition, 
since 1997, flycatchers have been observed breeding along the lower 
Muddy River on the Overton Wildlife Management Area, within Lake Mead 
NRA. There have also been flycatchers observed in the lower Grand 
Canyon, adjacent to the recreation area, in suitable habitat at Lake 
Mohave.
    As stated in the draft and final EIS under the ``Affected 
Environment'' section, much of the shoreline areas of Lakes Mead and 
Mohave have riparian stands that are comprised of non-native tamarisk, 
or are too young to provide suitable nesting habitat. However, several 
areas have been determined suitable, and nest sites have been located. 
Of particular importance are the sensitive inflow areas, which will be 
protected by zoning for primitive and semi-primitive settings. In 
addition, if surveys find nesting pairs elsewhere along Lakes Mead and 
Mohave, closing the area under temporal zoning could be implemented to 
protect these sites.
    29. One commenter takes issue with the impact discussion on 
shorebirds and other wildlife. They state, ``on the basis of anecdotal 
evidence (chiefly testimony from park staff) the proposed rule 
concludes that PWCs could disturb wildlife through the interruption of 
normal activities, alarm or flight, avoidance and displacement of 
habitat, and nest abandonment. The term ``could'' demonstrates that 
National Park Service has not obtained evidence that such disturbance 
actually occurs at Lake Mead NRA.''
    NPS Response: There are many studies that relate to the impacts of 
motorized vessels, including PWC, on shorebirds, bald eagles, and other 
wildlife. These studies were considered in the development of the draft 
and final EIS. Buffer zones to protect foraging and loafing waterbirds 
from disturbance by personal watercraft in Florida (Rodgers 2000) 
determined that a buffer zones for motorized vessels would protect 
waterbirds. Effects of Motorboats and Personal Watercraft on Flight 
Behavior over a Colony of Common Terns (Burger 1998) showed disturbance 
responses from the use of motorized vessels, and recommended speed and 
distance restrictions close to tern colonies. Effects of Recreational 
Activities on Wintering Bald Eagles (Stalmaster and Kaiser 1998) showed 
that high

[[Page 17303]]

recreational use, including foot traffic and motorized vessels, can 
disrupt feeding activities.
    In addition, National Park Service biologists provided information 
related to disturbance from motorized vessels to birds and other 
wildlife, and information pertaining to the sensitive shoreline areas 
around Lakes Mead and Mohave. This information was used in the draft 
and final EIS for developing mitigation and monitoring activities, and 
in establishing protective measures for wildlife within the recreation 
area. These measures, including establishing primitive and semi-
primitive zones in the selected shoreline areas, will protect sensitive 
bird species from disturbance associated with the use of motorized 
vessels, including noise that flushes the birds, and wakes that disrupt 
nests.
    30. There was concern expressed about the occurrence of the Yuma 
clapper rail. One commenter references the draft rule where it states 
that while the inflow areas of the Muddy and Virgin Rivers contain 
habitat that might support the endangered Yuma clapper rail, no 
confirmed sightings have occurred within the recreation area. The EIS 
concurs with this statement. However, on page 56788, the proposed rule 
contradicts itself, and states incorrectly that the Yuma clapper rail 
resides at Lake Mead NRA.
    Clearly, the Yuma clapper rail cannot be said to ``occupy'' the 
shoreline or habitat of Lake Mead NRA if no one has ever seen it at the 
lake. This mistake should be corrected in the final rule.
    NPS Response: Suitable habitat for the Yuma clapper rail does occur 
within the recreation area, in particular, in the inflow areas of the 
Muddy and Virgin Rivers. The commenter is correct that no Yuma clapper 
rail have been recorded within the recreation area. They have been 
recorded nearby in the Virgin River area. This has been corrected in 
the final rule.
    31. There was one comment on the razorback sucker. The commenter 
points out the proposed rule states that biologists have studied the 
effect of motorized vessels on razorback sucker spawning areas at Lake 
Mead NRA for 10 years, and have concluded that such vessels, when 
passing through these areas interrupt spawning and generally interfere 
with the reproductive process. Nor do they include the studies or their 
data as appendices. As a result, the public and other scientists have 
no ability to determine whether the conclusions drawn by the 
``biologists'' are valid. This is poor science. In addition, it appears 
that the proposed rule may be overstating the effects of PWCs and other 
vessels on the spawning habitats of the razorback sucker, given that 
the fish spawn between January and April, when few people visit Lake 
Mead NRA.
    NPS Response: Fish species have been shown to be negatively 
affected by motorized watercraft emissions (Oris, et al. 1998). As 
stated in the draft and final EIS, temporary disturbance to spawning 
razorback suckers from the use of motorized vessels has been observed 
by biologists conducting fish monitoring activities (Marsh 2001). 
Visitation is currently low during spawning, and is likely to remain 
low between January and April, when the fish are spawning. Therefore, 
the impact from the continued use of motorized vessels is considered 
not likely to adversely affect the razorback sucker, and is not likely 
to jeopardize the continued existence of this species. In addition, 
under the mitigation outlined in the U.S. Fish and Wildlife Service 
Biological Opinion and in the draft and final EIS, biologists from Lake 
Mead NRA will continue to work with the Native Fish Work Group to 
monitor fish species and visitation to determine if temporal zoning of 
spawning areas is necessary to further protect razorback suckers and 
their habitat. The Native Fish Workgroup is composed of representative 
of Federal and State agencies as well as scientists with the respective 
state universities.
    32. One commenter noted the proposed rule claims that use of 
motorized vessels, including PWCs ``likely'' disturbs bonytail chubs 
attempting to spawn in Lake Mead NRA. Again, no technical studies have 
been conducted to support these hypotheses.
    NPS Response: According to the U.S. Fish and Wildlife Service 
Biological Opinion, appendix G of the final EIS, the largest remaining 
populations of bonytail chub in the wild are in Lake Mohave and in Lake 
Havasu. Both populations are the result of stocking young fish born 
from the existing broodstock into the declining wild populations. 
Efforts are underway by the U.S. Fish and Wildlife Service and the 
Bureau of Reclamation to refine rearing techniques and develop 
additional rearing facilities to increase production.
    While it is true that no technical studies have been conducted to 
study the impacts of recreational use on the bonytail chub, as stated 
in the draft and final EIS, scientists who have studied native fish in 
the recreation area in the past 10 years have observed that motorized 
use around spawning areas of razorback suckers can temporarily disrupt 
spawning activities, and the same is likely true for bonytail chub 
(Marsh 2001). Since bonytail chub are known to spawn in April and May, 
it can be hypothesized that some disturbance impacts from recreational 
use could temporarily affect the bonytail chub spawning activities. In 
addition, bony tail chub are known to spawn in the southern portion of 
Lake Mohave, just north of Katherine Landing. This area receives 
increased use starting in May, when spawning activities are known to 
occur.
    Fish species have also been shown to be negatively affected by 
motorized watercraft emissions (Oris, et al. 1998). Reduced water 
quality could harm aquatic organisms through algae blooms, suspended 
solids and turbidity, and oxygen depletion. However, Lake Mohave holds 
an immense amount of water, with a large volume of water flowing 
through the system. Therefore, even though there are contaminants 
entering the system from motorized vessels and from other sources such 
as fuel spills and parking lot runoff, these contaminants have not been 
recorded at concentrations that are known to result in impairment to 
the aquatic system or to human health.
    The National Park Service is required by law and policy to survey 
for, protect, and strive to recover all species native to the national 
park system units that are listed under the Endangered Species Act 
(Management Polices 2001). The policy further states that the National 
Park Service will undertake active management programs to inventory, 
monitor, restore, and maintain listed species' habitats, including 
controlling detrimental visitor access, and enhancing critical habitat. 
The National Park Service and the U.S. Fish and Wildlife Service have 
determined that the temporal zoning which could be imposed around 
spawning habitat would protect these species, and could enhance 
critical habitat. As stated in the Biological Opinion, the use of 
temporal zoning will not be imposed until recommended by Federal 
biologists working in consultation with the Native Fish Workgroup.

Comments Related to Soundscape

    33. One commenter suggested the National Park Service should insist 
that all watercraft have the quieter four-stroke engines.
    NPS Response: The final rule would phase out the carbureted two-
stroke engines over a 10-year period. The rule would only allow the use 
of direct injection two-stroke engines and four-stroke engines. Direct 
inject two-stroke and four-stroke engines have been shown to be quieter 
than the carbureted two-stroke engines. The NPS does not

[[Page 17304]]

believe it is necessary to require only four-stroke engines.
    34. We received a number of comments citing a variety of concerns 
over the noise associated with PWC use. In almost all cases this noise 
was characterized as ``annoying''. Specific concerns included the 
constant and repeated fluctuation in engine tone and pitch as PWCs 
enter and exit the water while jumping wakes, changing speed and 
performing other quick maneuvers along with the persistent noise 
associated with remaining in one general location rather than traveling 
from point-to-point.
    NPS Response: National Park Service Management Policies for 
Soundscapes, as stated in Management Policies 2001 (4.9), require 
superintendents to ``identify what levels of human-caused sound can be 
accepted within the management purposes of parks. The sound considered 
acceptable will vary throughout the park, being generally greater in 
developed areas and generally lesser in undeveloped areas * * *. The 
service will take action to prevent or minimize all noise that * * * 
exceeds levels that have been identified as being acceptable to, or 
appropriate for, visitor uses at the sites being monitored.'' 
Management Policies for Visitor Use (8.2) indicate that unless mandated 
by statute, the National Park Service will not allow visitors to 
conduct activities that would unreasonably interfere with the 
atmosphere of peace and tranquility, or the natural soundscape 
maintained in wilderness and natural, historic, or commemorative 
locations within the park.
    As written in the enabling legislation, the management purpose of 
Lake Mead is to provide public recreation, benefit, and use in a manner 
that will preserve, develop, and enhance, so far as practicable, the 
recreation potential and preserve the scenic, historic, scientific, and 
important features of the area. Recreational uses specifically listed 
in the act include bathing, boating, camping, and picnicking. Various 
levels of sound are associated with some of those uses, such as boating 
and PWC, and are consistent with the park's purpose as defined by the 
legislation.
    To provide a ``peaceful and tranquil'' experience in some 
locations, PWC use would be prohibited within the primitive and 
semiprimitive recreational opportunity zones. These zones also place 
restrictions on wake speed and identify acceptable motor types, such as 
electric trolling motors in primitive zones. These prohibitions or 
restrictions in alternatives B and C (the preferred alternative) of the 
draft and final EIS and the modified preferred alternative of the final 
EIS would provide for a peaceful and tranquil visitor experience. In 
areas such as Black Canyon, where a diverse range of visitors use a 
variety of nonmotorized and motorized watercraft, the National Park 
Service would temporally zone this unique area to accommodate all users 
and provide experiences that range from tranquil to more rural and 
mechanized. All alternatives include plans and policies for enforcement 
of noise regulations. These elements of the Environmental Impact 
Statement are consistent with NPS Management Policies.
    35. One commenter stated, testing at the Glen Canyon National 
Recreation Area indicate that the maximum noise levels for PWC are 
lower than the maximum noise levels for other motorized vessels.
    NPS Response: It is more appropriate to say that maximum noise 
levels for PWC were found to be similar to outboards and inboards of 
similar size and power. The Glen Canyon test data show that, except 
boats with V-8 engines (V-8 ``muscle boats''), which were clearly 
louder than all other craft, at a given speed, the noise levels of PWC 
were sometimes greater and sometimes less than those of other 
watercraft.
    36. One commenter stated, since 1998, PWC engine sound levels have 
been reduced by up to 70%.
    NPS Response: NPS has acknowledged that the newer model PWC are 
quieter than the older models. One might interpret a reduction from 100 
to 30 decibels (dBA) as a 70% reduction. A noise level reduction of 5.2 
dBA results from a 70% reduction in noise sources, for example if one 
had 10 like machines running, and turned off 7 of them. It is commonly 
accepted that people perceive a 10 dBA reduction in noise as about half 
(50%) as loud, such that a 70% reduction by perception would be 
something greater than 10 dBA. However the NPS can not state the exact 
percentage of sound emissions between the various models.
    37. The commenter notes opponents of PWC have claimed that the 
vessels emit noises as high as 102 decibels, without specifying 
distances or the method of sound measurement. These unsubstantiated 
claims are refuted by the National Park Service's recent testing at 
Glen Canyon, and cannot be reproduced under accepted sound measurement 
standards.
    NPS Response: As noted in the comment, no distance was specified 
for the 102-decibel (dBA) measurement. A noise source of 76 dBA at 82 
feet, which was measured for a PWC, would be 102 dBA at 4 feet. Other 
conditions that could contribute to PWC noise of 102 dBA at distances 
greater than 4 feet would be PWC operation without a muffler or with a 
faulty muffler, and if the noise was measured when the PWC was 
airborne. This response is not to imply that 102 dBA is a typical PWC 
noise, but to indicate that while a data point of 102 dBA without 
description is of little value.
    38. One commenter stated, ``The National Marine Manufacturers 
Association has published a Model Noise Act for use by state 
legislatures or other agencies with jurisdiction over the manufacture 
and operation of watercraft. The Model Noise Act promotes regulation or 
legislation that would prohibit the operation of watercraft in a manner 
to exceed 75 dBA at the shoreline. The model noise act would also 
promote regulation or legislation that would prohibit the manufacture 
of watercraft that could not operate in compliance with the 75 dBA 
standard.''
    NPS Response: The 75 dBA shoreline noise level limit is consistent 
with a relatively recent state of Nevada standard that will be enforced 
at Lake Mead (Nevada Administrative Code Section 488.460). The National 
Park Service is currently revising boating regulations and is proposing 
to adopt the 75 dBA standard and will encourage the state of Arizona to 
adopt a similar standard.

Drafting Information

    The principal authors of this final rule are: Jim Holland, 
Management Assistant, Lake Mead NRA; Kevin Hendricks, Assistant Chief 
Ranger, Lake Mead NRA; Nancy Hendricks, Resource Management Specialist, 
Lake Mead NRA; Kym Hall, Regulations Program Manager, National Park 
Service; and Michael Tiernan, Office of the Solicitor, Department of 
the Interior.

Compliance with Other Laws

Regulatory Planning and Review (Executive Order 12866)

    This document is a significant rule and has been reviewed by the 
Office of Management and Budget under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This determination is based upon the findings in a report 
prepared by the National Park Service entitled

[[Page 17305]]

``Economic Analysis of Personal Watercraft Regulations in Lake Mead 
National Recreation Area'' (Law Engineering and Environmental Services, 
Inc., March 2002). The focus of this study was to document the impact 
of this rule on a variety of small entities including PWC dealerships 
and repair shops, PWC rental business, and other local businesses that 
provide services to PWC users. The Economic Analysis may be viewed on 
the Lake Mead Web site at http://www.nps.gov/lame.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. Actions 
taken under this rule will not interfere with other agencies or local 
government plans, policies, or controls. This is an agency specific 
rule.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. This rule will have no effects on entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. No grants or other forms of monetary supplements are 
involved.
    (4) This rule raises novel legal or policy issues. This rule is 
among the first of its kind for managing PWC use in National Park Units 
and the first for managing use in a National Recreation Area. The 
National Park Service published general regulations (36 CFR 3.24) in 
March 2000, requiring individual park areas to adopt special 
regulations to authorize PWC use. The implementation of the 
requirements of the general regulation continues to generate interest 
and discussion from the public concerning the overall effect of 
authorizing PWC use and National Park Service policy and park 
management.

Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The preferred alternative C, which would allow PWC use in 95% of Lake 
Mead, is expected to result in net economic benefits to those small 
businesses in the Lake Mead area that rent or sell personal watercraft. 
This net benefit is compared to the baseline, or alternative A, which 
is a complete ban of PWC in the Lake Mead National Recreation Area.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. The National Park Service 
has completed an economic analysis to make this determination. This 
rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have a significant adverse effect on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector. This rule is an 
agency specific rule and imposes no other requirements on other 
agencies, governments, or the private sector.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A taking implication assessment is 
not required. No taking of personal property will occur as a result of 
this rule.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This proposed rule only affects use of NPS 
administered lands and waters. It has no outside effects on other areas 
by allowing PWC use in specific areas of the park.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I is not required.

National Environmental Policy Act

    The National Park Service has analyzed this rule in accordance with 
the criteria of the National Environmental Policy Act and has prepared 
a draft Environmental Impact Statement (EIS). The draft EIS was made 
available for public review and comment on April 24, 2002, and the 
final EIS was made available for public review on January 10, 2003. A 
copy of the LMP/FinalEIS is available on the Lake Mead NRA Web page 
(http://www.nps.gov/lame/planning), at regional libraries or a copy may 
be obtained by contacting the Superintendent, Lake Mead NRA.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government to Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2: We have evaluated potential 
effects on federally recognized Indian tribes and have determined that 
there are no potential effects.

Administrative Procedures Act

    This final rule will be effective upon publication in the Federal 
Register. In accordance with the Administrative Procedures Act, 
specifically, 5 U.S.C. 553 (d)(1), this rule (36 CFR 7.48 (g)) is 
exempt from the requirement of publication of a substantive rule not 
less than 30-days before its effective date.
    As discussed in the preamble of this rule, the final rule is a part 
7 special regulation for Lake Mead National Recreation Area that 
relieves the restrictions imposed by the general regulation, 36 CFR 
3.24. The general regulation, 36 CFR 3.24, prohibits the use of 
personal watercraft in units of the national park system unless an 
individual park area has designated the use of personal watercraft by 
adopting a part 7 special regulation. The proposed rule was published 
in the Federal Register (67 FR 56,785) on September 5, 2002, with a 60-
day period for notice and comment consistent with the requirements of 5 
U.S.C. 553 (b). The Administrative Procedures Act, pursuant to the 
exception in (d)(1), waives the section 553 (d) 30-day waiting period 
when the published rule ``grants or recognizes an exemption or relieves 
a restriction.'' In this rule the NPS is authorizing the use of PWCs, 
which is otherwise prohibited by 36 CFR 3.24. As a result, the 30-day 
waiting period does not apply to the Lake Mead National Recreation Area 
final rule.

[[Page 17306]]

    The Attorney General's Manual on the Administrative Procedures Act, 
explained that the ``reason for this exception would appear to be that 
the persons affected by such rules are benefited by them and therefore 
need no time to conform their conduct so as to avoid the legal 
consequences of violation. The fact that an interested person may 
object to such issuance, amendment, or repeal of a rule does not change 
the character of the rule as being one ``granting or recognizing 
exemption or relieving restriction'', thereby exempting it from the 
thirty-day requirement.'' This rule is within the scope of the 
exception as described by the Attorney General's Manual and the 30-day 
waiting period should be waived. See also, Independent U.S. Tanker 
Owners Committee v. Skinner, 884 F.2d 587(DC Cir. 1989). In this case, 
the court found that (d)(1) is a statutory exception that applies 
automatically for substantive rules that relieves a restriction and 
does not require any justification to be made by the agency. ``In sum, 
the good cause exception must be invoked and justified; the (d)(1) 
exception applies automatically'' at 591. The facts are that Lake Mead 
National Recreation Area is promulgating this special regulation for 
the purpose of relieving the restriction, prohibition of PWC use, 
imposed by 36 CFR 3.24 and therefore, the (d)(1) exception applies to 
this rule.
    In accordance with the Administrative Procedures Act, this rule is 
also excepted from the 30-day waiting period by 5 U.S.C. 553 (d)(3) and 
is effective upon publication in the Federal Register. As discussed 
above, the purpose of this rule is to comply with 36 CFR 3.24 
requirement for authorizing PWC use in park areas by promulgating a 
special regulation. ``The legislative history of the APA reveals that 
the purpose for deferring the effectiveness of a rule under section 
553(d) was `to afford persons affected a reasonable time to prepare for 
the effective date of a rule or rules or to take other action which the 
issuance may prompt.' S.Rep. No. 752, 79th Cong., 1st Sess.15 (1946); 
H.R. Rep. No. 1980, 79th Cong., 2d Sess. 25 (1946).'' United States v. 
Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977). The persons affected 
by this rule are PWC users and delaying the implementation of this rule 
for 30-days will not benefit them; but instead will be 
counterproductive by denying them, for an additional 30-days, the 
benefits of the rule.
    The rule has been developed in full compliance with section 553(b) 
and (c) rulemaking requirements. The proposed rule was published in the 
Federal Register and provided 60 days for public comments. The public 
comments received are summarized and analyzed in this rule. Also as 
part of this process, the park prepared an environmental impact 
statement (EIS) that was made available to the public on April 24, 
2002, for public review and comment. The EIS evaluated the various 
alternatives for managing PWC use at Lake Mead, including an 
alternative with no PWC use. This rule will now implement the preferred 
alternative identified in the EIS with some changes as a result of the 
public comments received on both the proposed rule and the draft EIS.
    ``In determining whether to invoke the exception, the agency is 
`required to balance the necessity for immediate implementation against 
principles of fundamental fairness which require that all affected 
persons be afforded a reasonable time to prepare for the effective date 
of its ruling.' '' The Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 
752 (10th Cir. 1987). Since the primary purpose of the 30-day waiting 
period is so the public can prepare for the changes caused by the new 
rule. This rule authorizes the continued use of PWCs at Lake Mead 
National Recreation Area and will not require any changes that will 
require a 30-day waiting period for the public to prepare itself. 
Because of the ongoing grace period, PWC use has been allowed to 
continue at Lake Mead despite the prohibition in 36 CFR 3.24. The 
intent of the grace period was to provide time for parks, such as Lake 
Mead National Recreation Area, to promulgate special regulations 
without having the prohibition of 36 CFR 3.24 take effect and, for 
other parks that decided not to promulgate special regulations 
authorizing PWC use such as Cape Cod National Seashore and Delaware 
Water Gap National Recreational Area, to give people additional time to 
adjust their recreational use patterns, i.e., find alternative places 
to use their PWCs. There is no need to utilize the 30-day waiting 
period for the benefit of the affected parties, instead there is good 
cause for making this rule effective upon publication so that affected 
parties can continue using PWCs.

List of Subjects in 36 CFR Part 7

    District of Columbia, National parks, Reporting and recordkeeping 
requirements.

0
In consideration of the foregoing, the National Park Service amends 36 
CFR part 7 as follows:

PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM

0
1. The authority citation for part 7 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); sec. 7.96 also 
issued under DC Code 8-137(1981) and DC Code 40-721 (1981).


0
2. Section 7.48 is amended by adding paragraph (g) to read as follows:


Sec.  7.48  Lake Mead National Recreation Area.

* * * * *
    (g) Personal Watercraft (1) A person may launch and operate a 
personal watercraft in park waters or beach a personal watercraft on 
park lands, except in the following areas:
    (i) In the designated Primitive area known as the Gypsum Beds, 
which is described as Arizona T31N; R20W Portions of sections 2, 3, 10 
and 11; and
    (ii) In the designated Primitive area known as the Virgin River, 
which is described as Nevada T36N; R68E Portions of Sections 25, 26, 
34, 35, 36; and
    (iii) In the designated Primitive/Semiprimitive area in Black 
Canyon, from the Willow Beach Harbor to Hoover Dam, prohibited from the 
first Tuesday following Labor Day weekend through Friday of Memorial 
Day weekend; and prohibited only on Sundays and Mondays from the Sunday 
of Memorial Day weekend through the Monday of Labor Day weekend, which 
is described as Nevada T22S; R65E Portions of Sections 32; T23S; R65E 
Portions of Sections 5, 8, 17, 20, 21, 28, 29, 34; T23\1/2\S; R65E 
Portions of Sections 34; T23S; R65E Portions of Sections 1, 2, and 12. 
Arizona T30N; R23W Portions of Sections 3, 10, 15, 22, 27, 34; T29N; 
R23W Portions of Sections 2, 12, 13; T29N; R22W Portions of Sections 
18, 19, 20, 29; and
    (iv) In the designated Semiprimitive area known as the Muddy River 
Confluence with Lake Mead (Overton Wildlife Management Area), which is 
described as Nevada T16S; R68E Portions of Sections 28, 29, 32, 33 and 
34 and T17; R68E; and
    (v) In the designated Semiprimitive area known as Grand Wash Bay, 
which is described as Arizona T33N; R16W Portions of Sections 16, 17, 
21, 22, 27, 28, 29, 33 and 34, and T32\1/2\ N; R16W Portions of 
Sections 32 and 33; and
    (vi) In the designated Semiprimitive area known as Bonelli Bay, 
which is described as Arizona T31N; R20W Portions of Sections 4, 5, 7, 
8, 9, 16, 17, 18, 19, 20, 21, 29 and 30.
    (2) A person may not operate a personal watercraft at a speed in 
excess

[[Page 17307]]

of flat wake speed within 200 feet of any beach occupied by bathers, 
boats at the shoreline, or persons in the water or at the shoreline.
    (3) After December 31, 2012, no one may operate a personal 
watercraft that does not meet the 2006 emission standards set by EPA 
for the manufacturing of two-stroke engines. A person operating a 
personal watercraft that meets the EPA 2006 emission standards through 
the use of direct-injection two-stroke or four-stroke engines, or the 
equivalent thereof, is not subject to this prohibition and will be 
allowed to operate as described in this section.
    (4) The Superintendent may limit, restrict, or terminate access to 
the areas designated for PWC use after taking into consideration public 
health and safety, natural and cultural resource protection, and other 
management activities and objectives.
* * * * *

    Dated: March 28, 2003.
Paul Hoffman,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-8546 Filed 4-8-03; 8:45 am]
BILLING CODE 4310-70-P