[Federal Register Volume 71, Number 127 (Monday, July 3, 2006)]
[Notices]
[Pages 37908-37910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10340]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE


Notice of Intent To Conduct Restoration Planning

AGENCY: National Oceanic and Atmospheric Administration (NOAA), 
Commerce.

SUMMARY: The National Oceanic and Atmospheric Administration (NOAA), 
along with the other natural resource trustees, has determined that the 
impacts of the November 26, 2004, discharge of crude oil from the M/T 
ATHOS I (Athos), over which such trustees have jurisdiction, warrant 
conducting a natural resource damage assessment that will include 
restoration planning. NOAA is hereby providing notice of efforts to 
plan restoration actions for injuries resulting from this incident. The 
purpose of this restoration planning is to evaluate potential injuries 
to natural resources and services, and use that information to 
determine the need for and scale of restoration actions.

FOR FURTHER INFORMATION CONTACT: For further information, contact Jim 
Hoff at: NOAA, Damage Assessment Center, Room 10218, 1305 East-West 
Highway, Silver Spring, MD 20910-3281, 301-713-3038, x 188 (ph), 301-
713-4387 (fax), [email protected].

SUPPLEMENTARY INFORMATION: On November 26, 2004, the Athos, registered 
under the flag of Cyprus, owned by Frescati Shipping Company, Ltd., and 
operated by Taskos Shipping and Trading, discharged approximately 
264,000 gallons of crude oil into the Delaware river and nearby 
tributaries. The owner and operator of the vessel may be ``Responsible 
Parties'' for this incident as defined by the Oil Pollution Act (OPA) 
33 U.S.C. 2701 et seq. The final determination of liability for this 
incident is being considered by the U.S. Coast Guard. Numerous natural 
resources, including aquatic habitat and animals and the recreational 
uses they support, were exposed to the toxic and smothering effects of 
the oil discharged from the Athos. Adult and larval fish and shellfish, 
including the federally-

[[Page 37909]]

endangered shortnose sturgeon winter in certain areas of the Delaware 
River, and the waters around Little Tinicum Island are known to contain 
high numbers of pre-spawn and spawning striped bass in April and May. 
Delaware Bay supports commercial and natural oyster beds, commercial 
blue crab, horseshoe crab, and whelk fisheries, as well as a variety of 
recreational fisheries. Several rare tidal marsh plants are also found 
in the region, including wild rice, waterhemp ragweed, Walter's 
barnyard grass, swamp-beggar-ticks, and marsh fleabane. Fresh to 
saltwater wetlands wild rice marshes, sand beaches, mud flats, and 
tidal creeks are among the environmentally important shorelines 
potentially affected by the spill. Bird and wildlife resources at risk 
include migrating marsh birds, egret and heron rookeries, eagles and 
osprey, and migratory shorebirds. The federally-threatened piping 
plover inhabits the Lower Delaware Bay. There are also a variety of 
mink, otter, turtles, and terrestrial fauna that use the affected area. 
Many types of recreation are also popular along the Delaware River in 
the areas affected by the spill, waterfowl hunting, boating, fishing, 
crabbing, as well as beach and other shoreline use.
    Under OPA, state and Federal agencies and Indian tribes are 
designated as natural resource trustees, responsible for assessing 
natural resource losses and restoring those losses to baseline 
conditions, i.e., the condition that would have been had the incident 
not occurred. Trustees for the Athos incident are the U.S. Department 
of Commerce, NOAA; U.S. Department of the Interior (DOI), Fish and 
Wildlife Service; Commonwealth of Pennsylvania, Department of 
Conservation and Natural Resources, Department of Environmental 
Protection, Game Commission, and Fish and Boat Commission; State of New 
Jersey, Department of Environmental Protection; and State of Delaware, 
Department of Natural Resources and Environmental Control. By agreement 
of the trustees, NOAA is serving as the lead administrative trustee. 
The trustees are designated pursuant to 33 U.S.C. 2706(b), Executive 
Order 12777, and the National Contingency Plan, 40 CFR 300.600 and 
300.605. State laws (7 Del. C. Chapters 60, 62, and 91; N.J.S.A. Sec.  
13:lD--9f and 9q,; N.J.S.A. Sec.  58:10-23.11 et seq.; N.J.S.A. Sec.  
58:1OA-1 et seq; 35 P.S. Sec.  6020.301(14); 30 Pa. C.S.A. Sec.  2506; 
35 P.S. Sec.  691.605; 71 P.S. Sec.  1340.101 et seq.) describe state 
trust resources, including the following: vegetated wetlands, surface 
waters, ground waters, air, soil, wildlife, aquatic life, and the 
appropriate habitats on which they depend. DOI, through the involvement 
of the U.S. Fish and Wildlife Service, is trustee for natural resources 
described within the National Contingency Plan, 40 CFR 300.600(b)(2) 
and (3), which include the following and their supporting ecosystems: 
migratory birds, anadramous fish, endangered species and marine 
mammals, federally owned minerals, certain federally managed water 
resources, and natural resources located on, over, or under land 
administered by the DOI. NOAA's trust resources include, but are not 
limited to, commercial and recreational fish species, anadramous and 
catadromous fish species, marshes and other coastal habitats, marine 
mammals, and endangered and threatened marine species.
    Immediately following the spill, the trustees initiated a number of 
preassessment data collection activities, pursuant to OPA, to make an 
initial determination as to whether natural resources or services have 
been injured or are likely to be injured by the discharge. Specific 
preassessment activities included shoreline (aerial and ground) and 
resource (e.g., bird and wildlife, horseshoe crab, etc.) surveys and 
ephemeral data collection (e.g., water, sediment, and fish and 
shellfish tissue samples). The trustees' Preassessment Data Report 
details these preassessment data collection efforts, and provides 
laboratory results and supporting information. This Preassessment Data 
Report is available for review at: http://www.darrp.noaa.gov/northeast/athos/index.html.
    Findings from the preassessment efforts demonstrate or suggest four 
general areas of natural resource injuries: (1) Shorelines (marshes, 
sandy and coarse gravel beaches, tidal flats, etc.); (2) aquatic 
resources, particularly subtidal benthic habitat; (3) birds and 
wildlife; and (4) lost interim use of public services (fishing, 
hunting, and boating). The trustees have implemented or are developing 
studies to assess the extent of these injuries.
    Trustee Determinations: Following the notice of the discharge, the 
natural resource trustees have made the following determinations 
required by 15 CFR 990.41(a):
    The natural resource trustees have jurisdiction to pursue 
restoration pursuant to OPA, 33 U.S.C. 2702 and 2706(c); 40 CFR part 
300, the OPA Natural Resource Damage Assessments Final Rule, 15 CFR 
part 990, 61 FR 440 (January 6, 1996); 7 Del. C. Chapters 60, 62, and 
91; N.J.S.A. Sec.  13:lD--9f and 9q, N.J.S.A. Sec.  58:10-23.11 et 
seq.; N.J.S.A. Sec.  58:1OA-1 et seq.; 35 P.S. Sec.  6020.301(14); 30 
Pa. C.S.A. Sec.  2506; 35 P.S. Sec.  691.605; 71 P.S. Sec.  1340.101 et 
seq.
    The trustees have further determined that the discharge of crude 
oil into the Delaware River and its tributaries on November 26, 2004, 
was an incident, as defined in 15 CFR 990.30.
    This discharge was not permitted under state, Federal, or local 
law.
    The discharge was not from a public vessel.
    The discharge was not from an onshore facility subject to the 
Trans-Alaska Pipeline Authority Act, 43 U.S.C. 1651, et seq.
    Natural resources under the trusteeship of the natural resource 
trustees listed above may have been injured as a result of the 
incident. The crude oil discharged contains components that may be 
harmful to aquatic organisms, birds, wildlife, and vegetation. 
Vegetation, birds, and or aquatic organisms may have been exposed to 
the oil from this discharge, and injury to some flora and fauna and 
lost ecological services may have resulted from this incident.
    Because the conditions of 15 CFR 990.41(a) were met, as described 
above, the trustees made the further determination pursuant to 15 CFR 
990.41(b) to proceed with preassessment. The owner and operator, at the 
invitation of the trustees, pursuant to 15 CFR 990.14(c), agreed to 
participate in the preassessment.

Determination To Conduct Restoration Activities

    For the reasons discussed below, the natural resource trustees have 
made the determinations required by the 15 CFR 990.42(a) and are 
providing notice pursuant to 15 CFR 990.44 that they intend to conduct 
restoration planning in order to develop restoration alternatives that 
will restore, replace, rehabilitate, or acquire the equivalent of 
natural resources injured and/or natural resource services lost as a 
result of this incident.
    Injuries have resulted from this incident, the extent of which has 
not been fully determined at this time. The trustees base this 
determination upon data presented in the Preassessment Data Report, 
which were collected and analyzed pursuant to 15 CFR 990.43, which 
demonstrate that resources and services have been injured from this 
incident including, but not limited to, the following:
    (A) Shorelines: Preassessment shoreline surveys documented oil over 
115 river miles (280 miles of shoreline) from the Tacony-Palmyra Bridge 
to

[[Page 37910]]

south of the Smyrna River in Delaware. Data have been collected on 
types of shorelines impacted and degree(s) of oiling that will be used 
to define the extent and degree of impact.
    (B) Birds and Wildlife: Aerial and ground surveys were conducted 
following the incident assess the species composition and abundance of 
birds in the spill area, as well as the extent and degree of oiling of 
non-recovered wildlife. By May 2005, a number of oiled birds were 
observed; 206 wild birds were collected dead, died at the 
rehabilitation center, or were unable to be released to the wild, and 
337 birds were rehabilitated and released alive. Recovered wildlife 
that were collected dead or died at the rehabilitation center included 
three turtles, one squirrel, one opossum, one red fox, and one 
woodchuck. Two turtles were unable to be released to the wild and were 
placed domestically. The trustees have developed studies to determine 
the impact of the incident on birds and wildlife.
    (C) Aquatic resources: Oil was observed suspended though the water 
column and on the river bottom. The trustees collected numerous water, 
sediment, and fish and shellfish tissue samples that will be used to 
assess the effect of the incident on aquatic resources during the 
damage assessment.
    (D) Lost Use: Following the incident, hunting and boating 
advisories were issued in Delaware and New Jersey, closing certain 
areas. In Delaware, state lands were closed to hunting as far south as 
Cedar Swamp Wildlife Area. In New Jersey, the hunting advisory included 
most areas within five miles of the River from the Tacony-Palmyra 
Bridge to the nuclear power facility in Salem, NJ. The advisories were 
in effect for about two weeks.
    Although response actions were pursued, the nature of the discharge 
and the sensitivity of the environment precluded prevention of injuries 
to some natural resources. The trustees believe that injured natural 
resources could return to baseline through natural or enhanced 
recovery, but interim losses have occurred and will continue to occur 
until a return to baseline is achieved.
    Feasible compensatory restoration actions exist to address injuries 
from this incident. Restoration actions that could be considered may 
include, but are not limited to: Replanting native wetland vegetation 
in appropriate areas, creation, enhancement or protection of marsh or 
other habitat with similar service flows, protection of endangered 
species, removal of dams and installation of fishways to enhance 
propagation of migratory fish, creation of oyster reef habitat, 
creation of submerged aquatic vegetation habitat, and creation of bird 
colony areas.
    Assessment procedures are available to evaluate the injuries and 
define the appropriate type and scale of restoration for the injured 
natural resources and services. Among these procedures are bird and 
marsh habitat injury assessment studies to be used in conjunction with 
the Resource Equivalency Analysis (REA) and Habitat Equivalency 
Analysis (HEA), respectively, to determine compensation for injuries to 
birds and marsh habitats. Models, comparisons to observations of injury 
resulting from similar incidents, or other methodologies are available 
for evaluating injuries to the ecosystem.
    Public Involvement: Pursuant to 15 CFR 990.44(c), the trustees seek 
public involvement in restoration planning for this incident, through 
public review of and comments on the documents contained in the 
administrative record.. The record is on file at the NOAA Damage 
Assessment Center in Silver Spring, Maryland, and can be viewed 
electronically at: http://www.darrp.noaa.gov/northeast/athos/index.html.
    NOAA, as the Lead Administrative Trustee, and on behalf of the 
natural resource trustees of the [the other trustees], pursuant to the 
determinations made above and in accordance with 15 CFR 990.44(d), 
hereby provides this Notice of Intent to Conduct Restoration Planning 
and invites its participation in conducting the restoration planning 
for this incident.

    Dated: June 27, 2006.
Ken Barton,
Acting Director, Office of Response and Restoration, National Ocean 
Service, National Oceanic and Atmospheric Administration.
[FR Doc. E6-10340 Filed 6-30-06; 8:45 am]
BILLING CODE 3510-JE-P