[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-652]
Department of Commerce
National Oceanic and Atmospheric Administration
15 CFR Part 922
Channel Islands National Marine Sanctuary Regulations; Final Rule
Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 080311420-9008-02]
Channel Islands National Marine Sanctuary Regulations
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Final rule.
SUMMARY: The National Oceanic and Atmospheric Administration (NOAA)
publishes this rule to finalize the regulations for the Channel Islands
National Marine Sanctuary (CINMS or Sanctuary). This final rule revises
the regulations to implement prohibitions on: Exploring for,
developing, or producing minerals within the Sanctuary; abandoning
matter on or in Sanctuary submerged lands; taking marine mammals, sea
turtles, or seabirds within or above the Sanctuary; possessing within
the Sanctuary any marine mammal, sea turtle, or seabird; marking,
defacing, damaging, moving, removing, or tampering with Sanctuary
signs, monuments, boundary markers, or similar items; introducing or
otherwise releasing from within or into the Sanctuary an introduced
species; and operating motorized personal watercraft within waters of
the Sanctuary that are coextensive with the Channel Islands National
Park. NOAA also makes additional changes to the grammar and wording of
several sections of the regulations to ensure clarity. Finally, NOAA
publishes the Sanctuary's revised terms of designation.
DATES: Effective Date: Pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised terms of
designation and regulations shall take effect and become final after
the close of a review period of forty-five days of continuous session
of Congress beginning on January 16, 2009. Announcement of the
effective date of the final regulations will be published in the
ADDRESSES: Copies of the final management plan (FMP) and final
environmental impact statement (FEIS) are available at Channel Islands
National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara,
California and on the Web at http://channelislands.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Michael Murray at (805) 884-1464.
Pursuant to section 304(e) of the National Marine Sanctuaries Act
(NMSA; 16 U.S.C. 1434(e)), NOAA conducted a review of the management
plan and regulations for the Channel Islands National Marine Sanctuary
(CINMS or Sanctuary), located off Santa Barbara and Ventura counties in
southern California. As a result of the review, NOAA determined that it
was necessary to revise the management plan and regulations for the
Sanctuary and subsequently published a draft revised management plan,
proposed rule, and draft environmental impact statement (71 FR 29096;
May 19, 2006). NOAA later published a supplemental proposed rule and
supplemental draft environmental impact statement (73 FR 16580; March
The revised management plan for the Sanctuary contains a series of
action plans that outline management, research, education, operational,
and evaluation activities for the next five years. The activities are
designed to address specific issues facing the Sanctuary and, in doing
so, help achieve the mandates of the NMSA and the Sanctuary's
designation. NOAA has also revised several sections of the Sanctuary's
terms of designation. This final rule publishes these revisions, as
well as revisions to Sanctuary regulations. These revisions are
described below in the ``Terms of Designation'' and ``Summary of the
Regulatory Amendments'' sections and are analyzed in the FEIS. The FMP
and FEIS are available at http://channelislands.noaa.gov or may be
obtained by contacting the individual listed under the heading FOR
FURTHER INFORMATION CONTACT.
A. Marine Reserves and Conservation Areas
In 2002, NOAA considered merging the environmental review processes
for management plan review and the consideration of marine zones within
the Sanctuary, but subsequently determined that it was more appropriate
to proceed with two separate processes for these actions because of
differing process needs regarding coordination with the State of
California and Pacific Fishery Management Council. Consequently, NOAA
prepared a separate DEIS and proposed rule (71 FR 46134; August 11,
2006) and FEIS and final rule (72 FR 29208; May 24, 2007) to address
marine zones in the Sanctuary. As such, that process is outside the
scope of this rule.
B. Sanctuary Environment
Designated on October 2, 1980 (45 FR 65200), the Sanctuary consists
of an area off the coast of southern California of approximately 1470
square statute miles (1110 square nmi) \1\ adjacent to the following
islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa
Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and
Castle Rock (the Islands) extending seaward to a distance of
approximately six nmi. The Sanctuary is located within the upper
portion of the Southern California Bight (SCB), which is formed by a
transition in the California coastline wherein the north-south trending
coast begins to trend east to west. The SCB stretches from Point
Conception in the north to Punta Eugenia (Mexico) in the south. Due to
the oceanographic features of the SCB, its two biogeographic provinces
or bioregions (areas characterized by distinct patterns of species
abundance and distribution) and a transition zone between them, and the
complex bottom topography and diversity of habitats found at the
Islands, the Sanctuary has a great diversity of marine life.
\1\ From 1980 to 2007, the area of CINMS was described as
approximately 1252.5 square nautical miles. However, in 2007 NOAA
re-calculated the original CINMS area as approximately 1113 square
nautical miles (72 FR 29208). Also in 2007, NOAA designated the
federal portion of the Channel Islands MPA network, consisting of
eight marine reserves and one marine conservation area within the
CINMS (72 FR 29208). The marine reserves are distributed throughout
the CINMS and extend slightly beyond the original boundaries of the
CINMS in four locations, increasing the overall size of the
Sanctuary by approximately 15 square nautical miles. This change
allowed the boundary of four of the marine reserves to be defined by
straight lines projecting outside the original CINMS boundary,
allowing for better enforcement of the marine reserves. Since then,
adjusting for technical corrections and using updated technologies,
NOAA has re-calculated the CINMS area as approximately 1470 square
statute miles (1110 square nmi). This change does not constitute a
change in the geographic area of the Sanctuary, but rather an
improvement in the estimate of its size.
Numerous important habitats are represented within the Sanctuary
including kelp forests, surfgrass and eelgrass, intertidal, nearshore
subtidal, deep-water benthic, and pelagic habitats.
The Sanctuary's cultural values stem largely from its rich array of
maritime heritage resources (paleontological remains, prehistoric
archaeological sites and their associated artifacts, shipwrecks,
aircraft wrecks, and material associated with wharves, piers
and landings). Carbon dating indicates that humans were present at the
Islands as early as 13,000 years ago. The Islands and surrounding
Sanctuary contain an abundance of prehistoric Native American Chumash
artifacts and are still revered as part of the traditional homeland by
contemporary Chumash. Historical remains may exist from as early as
Juan Rodriguez Cabrillo's voyage (1542 to 1543) through modern times.
Known historical remains are represented in an inventory of over 140
shipwrecks and aircraft wrecks documented as existing in the Sanctuary
since 1853. The uniqueness of the Sanctuary region and its proximity to
several major ports and harbors along the mainland coast has made it a
popular destination for numerous recreational and commercial
activities. Sportfishing, diving, snorkeling, whale watching, pleasure
boating, kayaking, surfing, and sightseeing are all popular pastimes
within the Sanctuary, which is often referred to as ``the Galapagos of
the north.'' Commercial activities include fishing, whale watching,
chartered tours, and maritime shipping.
The Sanctuary is located near an area of southern California
coastline that has experienced a dramatic increase in population.
Whereas the population of southern California (Imperial, Los Angeles,
Orange, Riverside, San Bernardino, San Diego, Santa Barbara, and
Ventura counties) was approximately 13.5 million in 1980, population
levels now reach nearly 20 million. This represents a regional increase
in population of approximately 43%. Aerial and on-water surveys
indicate that visitation to CINMS has increased significantly since
1980. With continued technological innovations such as global
positioning systems (GPS) and improved watercraft design, it is likely
that there will be continued increasing visitation to the Sanctuary and
added pressure on its resources. With its proposed revised management
plan and regulations, NOAA continues to protect CINMS for appreciation
and appropriate use by current and future generations. For a more
detailed description of the Sanctuary environment, please refer to the
final environmental impact statement available on the Sanctuary Web
site at http://channelislands.noaa.gov.
II. Changes to the Sanctuary Terms of Designation
Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that,
in designating national marine sanctuaries, NOAA specify the
sanctuary's ``terms of designation.'' The NMSA requires that each
sanctuary's terms of designation include:
1. The geographic area proposed to be included within the
2. The characteristics of the area that give it conservation,
recreational, ecological, historical, research, educational, or
esthetic value; and
3. The types of activities that will be subject to regulation by
the Secretary to protect those characteristics.
The CINMS terms of designation were originally published in 1980
upon establishment of the Sanctuary and revised in 2007 (45 FR 65198,
published October 2, 1980; and 72 FR 29208, published May 24, 2007,
NOAA is revising the Sanctuary's terms of designation as follows:
1. Modifying the characteristics that give the Sanctuary particular
value (Article III) to clarify that the submerged lands at CINMS are
legally part of the Sanctuary and are included in the boundary
description. At the time the Sanctuary was designated in 1980, Title
III of the Marine Protection, Research, and Sanctuaries Act (now also
known as the NMSA) characterized national marine sanctuaries as
consisting of coastal and ocean waters but did not expressly mention
submerged lands thereunder. NOAA has consistently interpreted its
authority under the NMSA as extending to submerged lands, and
amendments to the NMSA in 1984 (Pub. L. 98-498) clarified that
submerged lands may be designated by the Secretary of Commerce as part
of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, NOAA is
updating the terms of designation and the boundary description, and is
also replacing the term ``seabed'' with ``submerged lands of the
Sanctuary.'' In addition, NOAA is clarifying the description of the
Sanctuary's shoreline boundary demarcation as the Mean High Water Line
(MHWL) of Island shores.
2. Modifying the scope of activities that may be subject to
regulation (Article IV) to authorize regulation of:
a. Exploring for, developing, or producing minerals within the
b. Discharging or depositing from beyond the boundary of the
Sanctuary any material or other matter that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality;
c. Placing or abandoning any structure, material, or other matter
on or in the submerged lands of the Sanctuary;
d. Moving, injuring, possessing, or attempting to move, injure, or
possess a Sanctuary historical resource;
e. Taking any marine mammal, sea turtle, or seabird within or above
f. Possessing within the Sanctuary (regardless of where taken from,
moved, or removed from) any marine mammal, sea turtle or seabird;
g. Marking, defacing, damaging, moving, removing, or tampering with
any sign, notice, or placard, whether temporary or permanent, or any
monument, stake, post, or other boundary marker related to the
h. Introducing or otherwise releasing from within or into the
Sanctuary an introduced species.
These substantive revisions to and addition of new activities
subject to Sanctuary regulation enable new and emerging resource
management issues to be addressed, and are necessary in order to ensure
the protection, preservation, and management of the conservation,
recreational, ecological, historical, cultural, educational,
archeological, scientific, and esthetic resources and qualities of the
3. Ensuring consistency of the sections on international law and
emergency regulations with the NMSA and ONMS program-wide regulations
(sections 2 and 3 of Article IV).
4. Updating the explanation of the effect of Sanctuary authority on
preexisting leases, permits, licenses, and rights (section 3 of Article
5. Updating Article VI, ``Alterations to This Designation'', to
reflect the NMSA as currently written.
6. Making other minor editorial changes in order to conform wording
of the Sanctuary's terms of designation, where appropriate, to wording
used in the NMSA and for more recently designated sanctuaries.
NOAA is not making any changes to the ``Fishing'' and ``Defense
Activities'' sections within Article V (Relation to Other Regulatory
Programs) of the terms of designation as part of this action.
Revised Terms of Designation for the Channel Islands National Marine
Article I. Effect of Designation
The Channel Islands National Marine Sanctuary was designated on
October 2, 1980 (45 FR 65200). Section 308 of the National Marine
Sanctuaries Act, 16 U.S.C. 1431 et seq., (NMSA) authorizes the issuance
of such regulations as may be necessary to implement the designation,
including managing, protecting and preserving the conservation,
recreational, ecological, historical, cultural, archeological,
scientific, educational, and esthetic
resources and qualities of the Channel Islands National Marine
Sanctuary (Sanctuary). Section 1 of Article IV of this Designation
Document lists activities of the types that are to be regulated on the
effective date of designation or may be regulated at some later date in
order to protect Sanctuary resources and qualities. Listing does not
necessarily mean that a type of activity will be regulated; however, if
a type of activity is not listed it may not be regulated, except on an
emergency basis, unless Section 1 of Article IV is amended to include
the type of activity by the same procedures by which the original
designation was made.
Article II. Description of the Area
The Sanctuary consists of an area of approximately 1,110 square
nautical miles (nmi) of coastal and ocean waters, and the submerged
lands thereunder, off the southern coast of California. The Sanctuary
boundary begins at the Mean High Water Line of and extends seaward to a
distance of approximately six nmi from the following islands and
offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa
Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and
Castle Rock (the Islands). The seaward boundary coordinates are listed
in an Appendix to 15 CFR 922 subpart G.
Article III. Characteristics of the Area That Give It Particular Value
The Islands and surrounding ecosystems are unique and highly
valued, as demonstrated by, for example, several national and
international designations. The Islands and surrounding ecosystems are
characterized by a unique combination of features including: Complex
oceanography, varied bathymetry, diverse habitats, remarkable
biodiversity, rich maritime heritage, remote yet accessible location,
and relative lack of development. These features yield high existence
values as well as human use values for research, education, recreation,
The Islands are located within a 300-mile long oceanographic region
known as the Continental Borderland, a unique region of the continental
shelf characterized by basins and elevated ridges. Within this region,
the confluence of the cool California Current and warm Southern
California Countercurrent creates two distinct bioregions in and around
the Sanctuary: The cold Oregonian bioregion and the warm Californian
bioregion. There is also a transition zone between the two regions. The
overlap of these bioregions results in a unique and highly diverse
array of marine life within the Sanctuary, including cold water species
at the southern end of their range and warm water species at the
northern end of their range. In addition, the Sanctuary is located
offshore from Point Conception, the southernmost major upwelling center
on the west coast of the United States. Upwelling yields increased
primary productivity essential to the marine food web.
Diverse bathymetry and habitats are also important and unique
characteristics of the Islands and surrounding ecosystems. The
Sanctuary contains many important and varied physical and geological
features including a complex of plateaus, continental slope, gyres,
banks, subsea canyons, and rocky reefs. The diversity of accentuated
bottom relief, abrupt change in depth, and varied substrate provide a
spectrum of marine habitats. Some of the key marine habitats are sandy
beach, rocky intertidal, kelp forest, rocky reef, and sandy bottom.
The Sanctuary's oceanographic and physical features support a great
diversity of marine species, many of which are extremely rare and
afforded special protection by federal and state law. At least 33
species of cetaceans are found within the Sanctuary, including blue,
gray, and humpback whales and numerous dolphin species. While seven
species of pinnipeds have been found historically throughout or in
certain areas of the Sanctuary, at least four species maintain
important rookery and/or haul out sites on the Islands. Following the
1987 to 1990 translocation of southern sea otters to San Nicolas
Island, rare sea otter sightings have been reported in the Sanctuary.
Over 60 species of seabird occur within the Sanctuary, eleven of which
utilize breeding habitat at the Islands. In addition, over 400 species
of fish and more than 5,000 species of invertebrates are found in the
Sanctuary. Stranding data indicate that green, loggerhead, olive
Ridley, and leatherback sea turtles may also be found within the
Sanctuary. Finally, numerous marine algae and plant species occur
within the Sanctuary, the most notable among these being giant kelp and
The quality and abundance of natural resources at the Islands and
surrounding waters have attracted man from the earliest prehistoric
times to the present. As a result, the Sanctuary contains significant
prehistoric and historic maritime heritage resources. Prehistoric
maritime heritage resources include submerged Native American Chumash
sites, the significance of which is underscored by a terrestrial Island
site with human remains dated to 13,000 years ago. Historic maritime
heritage resources date back as far as 1542 and include over 140
historic shipwreck and aircraft sites. These wrecks reveal the diverse
range of activities and nationalities that have traversed the Santa
Barbara Channel. Following the mission era, human occupation of the
Islands transitioned from significant Chumash Native American villages,
to land grant and ranching settlements, and finally to joint public-
private ownership and management aimed at resource conservation and
compatible public use. Today's Chumash people continue to value and
enjoy the Islands and surrounding Sanctuary waters, working to keep and
revitalize their ancient Chumash maritime heritage. Despite this long
history of human presence on the Islands, they remain remote yet
accessible, and undeveloped relative to the burgeoning populations of
nearby mainland southern California.
The physical, biological, and cultural characteristics of the
Sanctuary combine to provide outstanding opportunities for appropriate
scientific research, education, recreation, commerce, and natural and
maritime heritage resource protection, preservation, and management.
The Islands and surrounding Sanctuary are the subject of extensive
research, primarily in the following categories: Physical and
biological science research; socioeconomic, cultural, and historic
research; and political science research. Since its designation in
1980, the Sanctuary has played an important role in marine science
education for all ages on a local, regional, national, and
international scale. Popular Sanctuary recreation activities include
wildlife viewing, boating, sailing, kayaking, diving, and sportfishing.
Commercial activities within the Sanctuary include maritime shipping,
oil and gas activities (three leases units pre-date the Sanctuary),
kelp harvesting, and commercial fishing. Some of the state's most
valuable commercial fisheries occur within the Sanctuary. County,
state, and federal agencies manage the resources of the Islands and
surrounding area and human uses thereof.
Several special designations recognize the Islands' and surrounding
ecosystems' unique value. In 1980, the United States designated both
the Channel Islands National Marine Sanctuary, as well as the islands
of Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa Rosa and
125,000 acres of submerged lands surrounding them as the Channel
Islands National Park. In addition, the United Nations
Educational, Scientific and Cultural Organization's (UNESCO) Man and
the Biosphere Program designated the Sanctuary as a Biosphere Reserve
Article IV. Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation, including
prohibition, as may be necessary to ensure the management, protection,
and preservation of the conservation, recreational, ecological,
historical, cultural, archeological, scientific, educational, and
esthetic resources and qualities of this area:
a. Exploring for, developing, or producing hydrocarbons or minerals
within the Sanctuary;
b. Discharging or depositing from within or into the Sanctuary any
material or other matter;
c. Discharging or depositing from beyond the boundary of the
Sanctuary any material or other matter that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality;
d. Drilling into, dredging, or otherwise altering the submerged
lands of the Sanctuary; or constructing, placing, or abandoning any
structure, material, or other matter on or in the submerged lands of
e. Operating a vessel (i.e., watercraft of any description) within
the Sanctuary except fishing vessels or vessels traveling within a
Vessel Traffic Separation Scheme or Port Access Route designated by the
Coast Guard outside of 1 nmi from any Island;
f. Disturbing a marine mammal or seabird by an overflight below
g. Within a marine reserve, marine park, or marine conservation
area, harvesting, removing, taking, injuring, destroying, possessing,
collecting, moving, or causing the loss of any Sanctuary resource,
including living or dead organisms or historical resources, or
attempting any of these activities;
h. Within a marine reserve, marine park, or marine conservation
area, possessing fishing gear;
i. Moving, removing, injuring, possessing, or attempting to move,
remove, injure, or possess a Sanctuary historical resource;
j. Taking any marine mammal, sea turtle, or seabird within or above
k. Possessing within the Sanctuary (regardless of where taken from,
moved, or removed from) any marine mammal, sea turtle, or seabird;
l. Marking, defacing, damaging, moving, removing, or tampering with
any sign, notice, or placard, whether temporary or permanent, or any
monument, stake, post, or other boundary marker related to the
m. Introducing or otherwise releasing from within or into the
Sanctuary an introduced species.
Section 2. Consistency With International Law
The regulations governing the activities listed in Section 1 of
this article shall be applied in accordance with generally recognized
principles of international law, and in accordance with treaties,
conventions, and other agreements to which the United States is a
party. No regulation shall apply to or be enforced against a person who
is not a citizen, national, or resident alien of the United States,
unless in accordance with: Generally recognized principles of
international law; an agreement between the United States and the
foreign state of which the person is a citizen; or an agreement between
the United States and the flag state of a foreign vessel, if the person
is a crewmember of the vessel.
Section 3. Emergency Regulations
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or minimize the imminent
risk of such destruction, loss, or injury, any and all activities,
including those not listed in section 1 of this Article, are subject to
immediate temporary regulation, including prohibition, consistent with
the Administrative Procedure Act.
Article V. Relation to Other Regulatory Programs
Section 1. Fishing
The regulation of fishing is not authorized under Article IV,
except within portions of the Sanctuary designated as marine reserves,
marine parks, or marine conservation areas established pursuant to the
goals and objectives of the Sanctuary and within the scope of the State
of California's Final Environmental Document ``Marine Protected Areas
in NOAA's Channel Islands National Marine Sanctuary'' (California
Department of Fish and Game, October 2002), certified by the California
Fish and Game Commission. However, fishing vessels may be regulated
with respect to discharges in accordance with Article IV, Section 1,
paragraphs (b) and (c), and aircraft conducting kelp bed surveys below
1000 feet can be regulated in accordance with Article IV, Section 1,
paragraph (f). All regulatory programs pertaining to fishing, including
particularly regulations promulgated under the California Fish and Game
Code and Fishery Management Plans promulgated under the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et
seq., shall remain in effect. All permits, licenses and other
authorizations issued pursuant thereto shall be valid within the
Sanctuary unless authorizing any activity prohibited by any regulation
implementing Article IV. Fishing as used in this article and in Article
IV includes kelp harvesting.
Section 2. Defense Activities
The regulation of those activities listed in Article IV shall not
prohibit any activity conducted by the Department of Defense that is
essential for national defense or because of an emergency. Such
activities shall be consistent with the regulations to the maximum
Section 3. Effect on Leases, Permits, Licenses, and Rights
Pursuant to section 304(c) of the NMSA, 16 U.S.C. 1434(c), no valid
lease, permit, license, approval, or other authorization issued by any
federal, state, or local authority of competent jurisdiction, or any
right of subsistence use or access, may be terminated by the Secretary
of Commerce or designee as a result of this designation or as a result
of any Sanctuary regulation if such authorization or right was in
existence on the effective date of this designation. The Secretary of
Commerce, or designee, however, may regulate the exercise (including,
but not limited to, the imposition of terms and conditions) of such
authorization or right consistent with the purposes for which the
Sanctuary is designated.
Article VI. Alterations to This Designation
The terms of designation, as defined under section 304(a) of the
NMSA, may be modified only by the same procedures by which the original
designation is made, including public hearings, consultation with
interested federal and state agencies and the Pacific Fishery
Management Council, approval by the Secretary of Commerce or designee,
and after the close of a review period of forty-five days of continuous
session of Congress.
III. Summary of the Regulatory Amendments
This section describes the changes NOAA is making to the CINMS
1. Clarify and update Sanctuary boundary.
This rule clarifies that ``submerged lands'' are within the
Sanctuary boundary, i.e., part of the Sanctuary. This updates the
boundary regulation to make it consistent with the revised terms of
designation. (See discussion above for more information.) This rule
also clarifies the description of the shoreline boundary to make clear
that the shoreline boundary is the Mean High Water Line (MHWL) of
2. Revise oil and gas regulation, and add mineral regulation.
This rule modifies the oil and gas regulation by removing the oil
spill contingency equipment requirements and modifying exceptions to
this prohibition. The equipment requirements are outdated and
unnecessary since Minerals Management Service lease agreement terms
prescribe more stringent mandatory oil spill contingency plans.
This rule also prohibits exploring for, developing, or producing
minerals within the Sanctuary, except producing by-products incidental
to hydrocarbon production allowed under the regulations. ``Mineral'' is
defined by the ONMS-wide regulations as clay, stone, sand, gravel,
metalliferous ore, non-metalliferous ore, or any other solid material
or other matter of commercial value (15 CFR 922.3). Mineral extraction
activities could involve scraping the Sanctuary's seabed surface and/or
excavation of pits and tunnels into the seabed. This prohibition
protects Sanctuary resources and qualities from potentially damaging
effects of offshore mineral activities, including (but not limited to):
Destruction and direct smothering of the benthic biota; alteration of
the seabed surface profile; potential harm to fisheries; introduction
of substances (e.g., drill cuttings and mud) that could cause
interference with the filtering, feeding, or respiratory functions of
marine organisms; loss of food sources and habitat for some species;
possible lowered photosynthesis and oxygen levels; and degraded
appearance of the water itself. Finally, prohibition of mineral
activities within the Sanctuary reduces the risk of potential
disturbance to underwater historical resources either through physical
disturbance or increased turbidity, which will result in direct long-
term beneficial impact to historical resources. A prohibition on
mineral activities within the Sanctuary is consistent with the
prohibition on alteration of or construction on or in the submerged
lands discussed below.
3. Revise regulations on discharge/deposit.
This rule also clarifies and otherwise modifies the regulations
prohibiting discharging or depositing any material or other matter as
a. Clarify that the regulation applies to discharges and deposits
``from within or into the Sanctuary.'' Using the word ``into'' is
intended to make clear that it applies to not only discharges and
deposits originating in the Sanctuary (including from vessels in the
Sanctuary), but also to, e.g., discharges and deposits from aircraft
above the Sanctuary, from docks and piers extending over the Sanctuary,
and from cliffs and other land adjacent to the Sanctuary.
b. Clarify that the exception for fish, fish parts, or chumming
materials (bait) applies only to such discharges or deposits that were
used in or resulting from lawful fishing activity within the Sanctuary
and provided that such discharges or deposits are during the conduct of
lawful fishing activity in the Sanctuary.
c. Remove the exception for discharging or depositing biodegradable
effluents generated by meals onboard vessels. Coast Guard regulations
prohibit discharge/deposit of food wastes (garbage) within three nmi
and prohibit discharge/deposit of food wastes unless ground to less
than one inch within three to twelve nmi. The Sanctuary regulations are
modified to mirror the Coast Guard regulations within three nmi and,
beyond three nmi, provide increased protection to Sanctuary resources
d. Clarify NOAA's original intent of prohibiting untreated sewage
discharge/deposit within the Sanctuary. The exception for biodegradable
effluent discharges/deposits from marine sanitation devices is now
explicit in its application only to operable Type I or II marine
sanitation devices approved by the United States Coast Guard in
accordance with the Federal Water Pollution Control Act, as amended.
e. Prohibit discharges/deposits of treated and untreated sewage and
graywater from vessels 300 gross registered tons (GRT) or greater,
except oceangoing ships without sufficient holding tank capacity to
hold sewage and graywater, respectively, while within the Sanctuary.
Cruise ships (larger than 300 GRT) are not provided an exception and,
therefore, are prohibited from discharging/depositing treated or
untreated sewage and graywater in the Sanctuary.
These revisions address NOAA's concerns about possible impacts from
large volumes of sewage discharges in the Sanctuary, whether treated or
not, from large vessels (such as cruise ships). Vessel sewage
discharges are more concentrated than domestic land-based sewage. They
may introduce disease-causing microorganisms (pathogens), such as
bacteria, protozoans, and viruses, into the marine environment (EPA
2007). They may also contain high concentrations of nutrients that can
lead to eutrophication (the process that can cause oxygen-depleted
``dead zones'' in aquatic environments), and may yield unpleasant
esthetic impacts to the Sanctuary (diminishing Sanctuary resources and
its ecological, conservation, esthetic, recreational and other
Graywater can contain a variety of substances including (but not
limited to) detergents, oil and grease, pesticides and food wastes
(Eley 2000). Very little research has been done on the impacts of
graywater on the marine environment, but many of the chemicals commonly
found in graywater are known to be toxic (Casanova et al. 2001). These
chemicals have been implicated in the occurrence of cancerous growths
in bottom-dwelling fish (Mix 1986). Furthermore, studies of graywater
discharges from large cruise ships in Alaska (prior to strict state
effluent standards for cruise ship graywater discharges) found very
high levels of fecal coliform in large cruise ship graywater (well
exceeding the federal standards for fecal coliform from Type II MSDs).
These same studies also found high mean total suspended solids in some
graywater sources (exceeding the federal standards for total suspended
solids from Type II MSDs). While many older ships have been modified to
allow graywater retention, some must still discharge graywater directly
as it is produced. Similarly, some older ships have very limited
holding tank capacity for sewage. Consequently, given that many older
vessels are still in operation, NOAA provides exceptions for sewage and
graywater discharge from oceangoing ships without sufficient holding
tank capacity to retain sewage or graywater, respectively, while in the
Treated sewage and graywater discharge from small vessels, and from
oceangoing ships without sufficient holding tank capacity to hold
sewage and graywater while within the Sanctuary, is anticipated to have
a less than significant adverse impact on the Sanctuary's physical,
biological, and esthetic resources. Most oceangoing ships have
sufficient holding tank capacity to hold sewage and graywater while
within the Sanctuary. As for other oceangoing ships, given the much
number of people on oceangoing ships (as noted in the FEIS section 3.0,
on average oceangoing ships carry crews of approximately twenty people,
but may range from five to fifty people), the treated sewage and
graywater generated by such ships is far less in quantity as compared
to that from cruise ships, and is therefore not expected to contain the
larger volume of possible harmful nutrients, pathogens, and chemicals
that can be found in cruise ship treated sewage and graywater.
Additional details on the potential impacts to Sanctuary resources
from graywater and treated sewage discharges/deposits are provided in
f. Provide a definition of ``graywater'' that reads as follows:
``Graywater means galley, bath, or shower water.'' Other discharges,
such as those from laundry facilities, are not included in this
definition, which is based on section 312 of the CWA. In May 2006,
NOAA's proposed rule (71 FR 29096; May 19, 2006) referred to the
definition of graywater codified by the CWA; however, due to comments
received, NOAA added a free-standing definition for graywater, rather
than referring to the CWA.
g. Adopt, for consistency purposes, in relevant part, the existing
California Clean Coast Act definition of ``oceangoing ship''
(California Public Resources Code sec. 72410(j)). The definition of
``oceangoing ship'' is added to the CINMS regulations to read as
follows: ``Oceangoing ship means a private, commercial, government, or
military vessel of 300 gross registered tons or more, not including
The California Clean Coast Act definition is the same with one
additional phrase at the end: ``Calling on California ports or
places.'' The Sanctuary definition excludes this phrase since ships of
this general description may traverse the Santa Barbara Channel TSS,
and thereby the Sanctuary, without stopping in California ports or
h. Adopt a definition of ``cruise ship.'' The definition of
``cruise ship'' is added to the CINMS regulations as follows: ``Cruise
ship means a vessel with 250 or more passenger berths for hire.''
i. Prohibit discharging or depositing any material or other matter
from beyond the boundary of the Sanctuary that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality. ``Sanctuary
resource'' is defined at 15 CFR 922.3 as ``any living or non-living
resource of a National Marine Sanctuary that contributes to the
conservation, recreational, ecological, historical, research,
educational, or aesthetic value of the Sanctuary, including, but not
limited to, the substratum of the area of the Sanctuary, other
submerged features and the surrounding seabed, carbonate rock, corals
and other bottom formations, coralline algae and other marine plants
and algae, marine invertebrates, brine-seep biota, phytoplankton,
zooplankton, fish, seabirds, sea turtles and other marine reptiles,
marine mammals and historical resources.'' ``Sanctuary quality'' is
defined at 15 CFR 922.3 as ``any of those ambient conditions, physical-
chemical characteristics and natural processes, the maintenance of
which is essential to the ecological health of the Sanctuary,
including, but not limited to, water quality, sediment quality and air
quality.'' This modification provides consistency with the regulatory
language of other more recently designated sanctuaries, and helps to
protect Sanctuary resources and qualities from negative influences
originating outside the boundaries of the CINMS.
4. Clarify and update regulation on disturbing Sanctuary areas.
This rule modifies the existing prohibition against altering the
seabed of the Sanctuary or constructing a structure thereon. The term
``seabed'' is replaced with ``submerged lands'' to be consistent with
language used in the NMSA. In addition, this rule expands the
geographic extent of this regulation from the first 2 nmi offshore to
the entire area of the Sanctuary in order to ensure protection of the
diverse accentuated bottom relief, varied substrate, and concomitant
benthic habitats of the Sanctuary, and wording is conformed with
similar regulations at more recently designated sanctuaries. Another
change modifies the exception for ``bottom trawling from a commercial
vessel'' to provide an exception for activities incidental and
necessary to ``conduct lawful fishing activity.'' This exception
encompasses other bottom-touching gear types, such as pots and traps.
This change removes any uncertainty about the existing exception's
applicability to such gear types.
This rule also specifies that abandoning--by which is meant leaving
without intent to remove, any structure, material, or other matter on
or in the submerged lands of the Sanctuary--is prohibited. This change
makes the CINMS regulations consistent with regulations at more
recently designated sanctuaries and helps protect the Sanctuary from,
for example, debris abandoned by Sanctuary users.
5. Modify vessel approach regulation.
NOAA also modifies the vessel approach regulation so that the
prohibition against vessel operation within 1 nmi of any of the Islands
also applies to all vessels 300 gross registered tons or more
(excluding fishing and kelp harvesting vessels). The former regulation
prohibiting vessel operation within 1 nmi of any of the Islands applied
only to vessels engaged in the trade of carrying cargo and those
engaged in the trade of servicing offshore installations. The intent of
this modification is to protect the sensitive nearshore areas off the
Islands, including kelp forests, rocky reefs, and other areas, from the
potential impacts of large-vessel groundings and collisions, including,
but not limited to, cruise ships. NOAA modified this prohibition to
more directly address its concern that large vessels put at risk
sensitive nearshore areas of the Sanctuary regardless of their purpose
for operating in nearshore Sanctuary waters.
6. Clarify and update regulation on disturbing historical
This rule also includes a modification to the prohibition on
removing or damaging any historical or cultural resource. The rule adds
``moving'' and ``possessing'' to the prohibition; replaces ``damage''
with ``injure,'' a term defined at 15 CFR 922.3; and adds
``attempting'' to move, remove, injure, or possess as a prohibition.
The intent of this modification is to provide added protection to these
fragile, finite, and non-renewable resources so they may be studied,
and so appropriate information about them may be made available for the
benefit of the public. The rule also replaces ``historical or cultural
resource'' with ``Sanctuary historical resource'' to be consistent with
regulatory language used at several other more recently designated
national marine sanctuaries. ``Historical resource'' is defined in NMSP
program-wide regulations as ``any resource possessing historical,
cultural, archaeological or paleontological significance, including
sites, contextual information, structures, districts, and objects
significantly associated with or representative of earlier people,
cultures, maritime heritage, and human activities and events.
Historical resources include `submerged cultural resources', and also
include `historical properties', as defined in the National Historic
Preservation Act, as amended, and its implementing regulations, as
amended.'' (15 CFR 922.3).
7. Prohibit take and possession of certain species.
This rule implements a new prohibition on take of marine mammals,
sea turtles, and seabirds, except as authorized by the MMPA, ESA, MBTA,
or any regulation, as amended, promulgated under one of these acts. The
intent of this regulation is to bring a special focus to protection of
the diverse and vital marine mammal and seabird populations and the sea
turtles of the Sanctuary. This area-specific focus is complementary to
the prohibitions against taking promulgated by other resource
protection agencies, especially given that other federal and state
authorities must spread limited resources over much wider geographic
areas. This regulation is consistent with regulations for several other
more recently designated national marine sanctuaries, and provides a
greater deterrent due to the higher civil penalties afforded under the
NMSA than the penalties provided by the MMPA, ESA, and MBTA. Further,
the prohibition covers all marine mammals, sea turtles, and seabirds
within or above the Sanctuary. The Sanctuary's regulations do not apply
if an activity (including fishing in a federally or state-approved
fishery) that results in the take of marine mammals, sea turtles, or
seabirds has been authorized under the MMPA, ESA, or MBTA or an
implementing regulation. Therefore, under this rule, if NMFS or the
USFWS issues a permit for, or otherwise authorizes, the take of a
marine mammal, sea turtle, or seabird, such taking would not be
prohibited and therefore would not require a permit from the Sanctuary
Superintendent unless the activity would violate another provision of
the Sanctuary's regulations.
``Take'' is defined in the NMSP program-wide regulations at 15 CFR
The prohibition on take of marine mammals, sea turtles, and
seabirds complements the regulation already prohibiting disturbing
seabirds or marine mammals by flying motorized aircraft at less than
1000 feet over the waters within one nmi of any Island. That regulation
provides a special focus on a specific type of activity, operation of
motorized aircraft, within the particularly sensitive environments of
This rule also prohibits possessing within the Sanctuary
(regardless of where taken from, moved, or removed from) any marine
mammal, sea turtle, or seabird, except as authorized by the MMPA, ESA,
MBTA, or any regulation, as amended, promulgated under the MMPA, ESA,
or MBTA. This provision provides a greater deterrent against violations
of existing laws protecting marine mammals, sea turtles, and seabirds
than that offered by those other laws alone. This provision is also
consistent with NOAA's regulations for other more recently designated
national marine sanctuaries and enhances protection provided by the
prohibition on the take of marine mammals, sea turtles, and seabirds
8. Prohibit damaging signs and markers.
This rule also prohibits marking, defacing, damaging, moving,
removing, or tampering with any sign, notice or placard, whether
temporary or permanent, or any monument, stake, post, or other boundary
marker related to the Sanctuary. This prohibition is designed to
protect Sanctuary property used for purposes including demarcation,
enforcement, regulatory information, education, outreach, and research.
This new regulation is consistent with NOAA's regulations for other
9. Prohibit release of introduced species.
This rule also prohibits introducing or otherwise releasing from
within or into the Sanctuary an introduced species, except striped bass
(Morone saxatilis) released during catch and release fishing activity.
``Introduced species'' is defined to mean: (1) Any species (including
but not limited to any of its biological matter capable of propagation)
that is non-native to the ecosystems of the Sanctuary; or (2) any
organism into which altered genetic matter, or genetic matter from
another species, has been transferred in order that the host organism
acquires the genetic traits of the transferred genes. This prohibition
is designed to help reduce the risk from introduced species, including
but not limited to their seeds, eggs, spores, and other biological
matter capable of propagating. The intent of the prohibition is to
prevent injury to Sanctuary resources and qualities, to protect the
biodiversity of the Sanctuary ecosystems, and to preserve the native
functional aspects of the Sanctuary ecosystems, all of which are put at
risk by introduced species. Introduced species may become a new form of
predator, competitor, disturber, parasite, or disease that can have
devastating effects upon ecosystems. For example, introduced species
impacts on native coastal marine species of the Sanctuary could
include: Replacement of a functionally similar native species through
competition; reduction in abundance or elimination of an entire
population of a native species, which can affect native species
richness; inhibition of normal growth or increased mortality of the
host and associated species; increased intra- or interspecies
competition with native species; creation or alteration of original
substrate and habitat; hybridization with native species; and direct or
indirect toxicity (e.g., toxic diatoms). Changes in species
interactions can lead to disrupted nutrient cycles and altered energy
flows that ripple with unpredictable results through an entire
ecosystem. Exotic species may also pose threats to endangered species,
and native species diversity. A number of non-native species now found
in the Sanctuary region were introduced elsewhere on the west coast but
have spread through accidental introductions, such as hull-fouling and
ballast water discharges.
The introduced species regulation includes an exception for striped
bass (Morone saxatilis) released during catch and release fishing
activity. Striped bass were intentionally introduced in California in
1879, and in 1980 the California Department of Fish and Game initiated
a striped bass hatchery program to support the striped bass sport
fishery, which according to the California Department of Fish and Game
is one of the most important fisheries on the Pacific Coast. The
California Department of Fish and Game manages the striped bass fishery
through a Striped Bass Management Conservation Plan. This provision is
intended to acknowledge that striped bass are the focus of an
established state-managed sport fishery and, since they consequently
may be caught within the Sanctuary, allow for an exception for striped
bass released during catch and release fishing activity.
10. Regulate Motorized Personal Watercraft (MPWC).
This rule also prohibits operating a MPWC within waters of the
Sanctuary that are coextensive with the Channel Islands National Park
(CINP), established by 16 U.S.C. 410(ff). The CINP includes San Miguel
and Prince Islands, Santa Rosa, Santa Cruz, Anacapa and Santa Barbara
Islands, including the rocks, islets, submerged lands, and waters
within one nmi of each island. For the precise coordinates and a map of
the CINP, refer to the FEIS. This provision mirrors an existing
National Park Service ban on use of MPWC within waters of the CINP and
many other units of the National Park System, and is intended to
provide added deterrence for purposes of ensuring protection of the
Sanctuary's sensitive nearshore marine wildlife and habitats. The CINP
staff have observed an increase in use of MPWC within the park over the
last several years, and park staff issue several dozen warnings per
year for violation of this ban. For
consistency (including enforcement), this rule adopts the National Park
Service definition of MPWC (36 CFR 1.4(a)) for the Sanctuary, which
reads as follows:
``Motorized personal watercraft'' means 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. The length is measured from end to
end over the deck excluding sheer, meaning a straight line
measurement of the overall length from the foremost part of the
vessel to the aftermost part of the vessel, measured parallel to the
centerline. Bow sprits, bumpkins, rudders, outboard motor brackets,
and similar fittings or attachments, are not included in the
measurement. Length is stated in feet and inches.
MPWCs operate in a manner unique among recreational vessels and pose a
threat to wildlife. Their shallow draft enables them to penetrate areas
not available to conventional motorized watercraft (NPS 2000, MOCZM
2002). The high speed and maneuverability of MPWCs, along with the
tendency to operate them near the shore and in a repeated fashion
within a confined area, results in recurring disturbance to animals and
habitats (Rodgers and Smith 1997, Snow 1989). Studies have shown that
the use of MPWCs in nearshore areas can increase flushing rates, reduce
nesting success of certain bird species, impact spawning fish, and
reduce fishing success (Burger 1998, Snow 1989). The National Park
Service (2000, 2004) identified several of these impacts along with
interruption of normal activity, avoidance and displacement, loss of
habitat use, interference with movement, direct mortality, interference
with courtship, alteration of behavior, change in community structure,
elevated noise levels, and damage to aquatic vegetation. Further,
offshore marine mammals or surfacing birds may be unaware of the
presence of these vehicles due to their low frequency sound; when the
inability to detect the vehicles is combined with their high speed and
rapid and unpredictable movements, both animals and operators are at
risk (Snow 1989).
MPWC manufacturers have made efforts to reduce emissions and noise
through use of more efficient four-stroke engines as well as other
technology (e.g., Bombardier Recreational Products, Inc. 2005a, 2005b;
Personal Watercraft Industry Association 2005). However, it is not
clear that such improvements have rendered MPWC-caused wildlife
disturbance impacts insignificant. While industry sponsored studies
indicate that MPWCs are no louder than similar motorized vessels under
analogous conditions, other studies indicate that because MPWCs often
travel repeatedly in the same area, continually leaving and reentering
the water, they can create rapid cycles of noise that disturb humans
and wildlife (MOCZM 2002). Industry improvements in noise and other
emissions do not address impacts associated with the high speed,
maneuverability, shallow draft, and nearshore operation of MPWC.
The area within one nmi of island shores experiences the greatest
visitor use and impact to sensitive nearshore Sanctuary marine
resources. The new provisions implemented through this final rule serve
as an added deterrent to illegal MPWC use within the nearshore area and
other waters of the Channel Islands National Park.
11. Revise regulation on military activities.
This rule modifies regulations stating that all activities
currently (i.e., at the time of designation in 1980) carried out by the
Department of Defense within the Sanctuary are essential for the
national defense and, therefore, not subject to the prohibitions
contained within the other Sanctuary regulations. As part of this
modification, the list of exempt military activities occurring within
the Sanctuary is updated to include present military activities if
specifically identified in the Final Environmental Impact Statement
(FEIS) for this rule. In addition, the rule adds language consistent
with the NMSA, stating that mitigation and restoration or replacement
of Sanctuary resources and qualities is required when Department of
Defense activity results in their injury, destruction, or loss. All
Department of Defense activities are required to be carried out in a
manner that avoids to the maximum extent practicable any adverse
impacts on Sanctuary resources and qualities.
This rule also adds one exception pertaining to vessels of the
Armed Forces to the two discharge/deposit regulations discussed
earlier. Namely, an exception is made for discharges allowed under
section 312(n) of the Federal Water Pollution Control Act. Section
312(n), which was enacted in 1996, provides for uniform national
standards for discharges, other than sewage, incidental to normal
operation of vessels of the Armed Forces.
12. Revise permit regulations.
This rule also modifies the Sanctuary's permit regulations by: (a)
Augmenting and clarifying the list of activities for which the Director
of NOAA's ONMS (Director) \2\ may issue a permit; (b) clarifying which
prohibitions are eligible for a permit from the Director for the
conduct of a particular activity; (c) expanding and clarifying the
criteria the Director must use in reviewing permit applications; (d)
clarifying the application requirements for permits; and (e) requiring
that all permittees hold the United States government harmless against
claims arising from permitted activities.
\2\ The Director has delegated the responsibility for the review
of most permit applications and the decision making for most permits
to the Sanctuary Superintendents.
The modifications clarify that the Director may issue permits for
salvage activities pertaining to both abandoned shipwrecks (invoking
maritime heritage resource protection concerns) and recent air or
marine casualties (invoking prompt response concerns). The
modifications also allow the Director to issue permits for activities
that would assist Sanctuary management, but that do not fall into the
categories of research, education, or salvage. For example, the
Director may issue Sanctuary management permits for activities such as
repairing or replacing piers that help facilitate Sanctuary operations.
The updated list of otherwise prohibited activities that may be
conducted pursuant to a permit is necessary given the addition of
several new prohibitions and the recent addition of marine reserves and
conservation area regulations, and given the need to specify those
activities for which a permit may in no circumstances be granted.
The modifications to the permit regulations also strengthen and
augment the criteria that the Director must consider when evaluating
permit applications. The modifications now expressly indicate to
prospective permit applicants what type of information they are
required to include in their application. The modifications also
modernize the permit regulations by expressly requiring that the
permittee agree to hold the United States harmless against any claims
arising out of the permitted activities.
In summary, the overall intent of the revised permit regulations
is: To clarify, standardize, and make express the permit requirements
and procedures, rendering them easier for permit applicants to comply
with and for the Director and Sanctuary staff to implement; to ensure
that permitted projects are appropriate for the Sanctuary; and to
provide a mechanism for issuing permits for activities that
may further Sanctuary management but would otherwise be prohibited.
13. Make non-substantive revisions to regulations on marine
reserves and conservation areas.
This rule makes non-substantive revisions to the regulations on
marine reserves and conservation areas to remove some unnecessary
language and to better integrate the regulations with the rest of the
IV. Response to Comments
This section provides NOAA's response to comments received between
May and July 2006 on the proposed rule and during two hearings on the
proposed rule and associated DEIS, and to comments received between
March and May 2008 on a second proposed rule and associated
supplemental DEIS (or SDEIS). NOAA received over 700 comments on the
DEIS, SDEIS, and proposed rules. NOAA summarized the comments according
to the content of the statement or question put forward in the letters,
emails, and written and oral testimony at the public hearings on this
action because many of the comments touched upon the same or similar
issue and could be answered with one response.
Abandoning Matter--Fishing Gear
1. Comment: The proposed prohibition on abandoning is too broad and
may cause an unnecessary burden on existing lawful fishing activities
by appearing to render illegal the inadvertent loss of fishing gear.
The proposed regulation should clarify the specific materials and
situations prohibited, or exempt fishing gear lost during lawful
fishing operations--if the owner or operator attempts to recover the
gear with the equipment available to them at the time of the loss.
Response: In the rule's summary of regulatory amendments, NOAA has
stated that ``abandoning'' refers to ``leaving without intent to
remove.'' NOAA is not providing an exception for lost fishing gear.
However, NOAA would consider the efforts made by fishermen to retrieve
any deployed fishing gear in determining whether the loss of fishing
gear constituted the abandonment of matter on or in the submerged lands
of the Sanctuary.
2. Comment: The abandoning prohibition is overly broad and could be
a detriment to safety of life at sea in that the threat of penalty may
cause a master to delay abandonment of his sinking vessel beyond what
is prudent and which could result in unnecessary loss of life. This
section of the regulations should be much more narrowly drafted to
allow for a master's judgment in extremis.
Response: The regulation includes an exception for ``an activity
necessary to respond to an emergency threatening life, property, or the
Abandoning Matter--Abandoned Vessels vs. Historical Resources
3. Comment: The proposed abandoning prohibition eliminates
continuation of a historic record by making it illegal to leave
historic vessels in the Sanctuary after they have sunk. NOAA should
establish guidelines delineating the difference between an abandoned
vessel and an historical or archaeological resource.
Response: NOAA does not automatically consider newly sunken vessels
as historical resources to be protected. The extent to which removal of
a sunken vessel would be required is based on several factors,
including guidelines set by National Historic Preservation Act (NHPA)
criteria (16 U.S.C. 470 et seq.) for determining historical
Acoustic Impacts--General Action Recommendations
4. Comment: The FMP's Resource Protection Action Plan should
include an acoustics strategy that identifies underwater noise as an
issue, explains potential sources of noise (e.g., seismic testing and
sonar) and their effects on marine life, and explains NOAA's plans for
noise evaluation and response in the Sanctuary.
Response: The FMP's Resource Protection Action Plan identifies
human-induced acoustic impacts as a resource protection issue, explains
potential sources of noise and their potential effects on marine life,
and explains how NOAA is evaluating and responding to this issue in the
5. Comment: Given increasing shipping traffic and its associated
noise in the CINMS region, the FMP's Conservation Science Action Plan
should provide strategies for tracking and/or quantifying vessel
traffic through the Sanctuary and, if needed, mitigating or minimizing
Response: NOAA has added to the FMP's Conservation Science Action
Plan a new Strategy CS.8 on Automated Identification System (AIS)
Vessel Tracking. This strategy explains NOAA's long-term plan for large
vessel tracking within and around the Sanctuary. See also FMP Strategy
CS.3 for related information on acoustic monitoring in the Sanctuary,
and the FMP's Resource Protection Action Plan (Description of the
Issues) for related information on addressing human-induced acoustic
6. Comment: CINMS should formally consider energetic discharges
from human activities as pollutants in the same manner in which organic
and chemical discharges are considered. Several precedents for this
already exist, including California state law (the California Thermal
Plan), federal law (the Clean Water Act), and international law (UN
Convention on the Law of the Sea).
Response: While NOAA does not consider noise discharge as a
``pollutant,'' any impacts resulting from noise on marine mammals and
other endangered species are regulated under the Marine Mammal
Protection Act and the Endangered Species Act. At this time, NOAA
believes these measures are sufficient to address the threat of human-
induced sound on these sensitive species.
7. Comment: NOAA should establish a voluntary ``speed limit'' for
commercial ship traffic passing through or near the Sanctuary during
blue and fin whale inhabitation to reduce the noise impacts on these
Response: Since 2007, NOAA and the U.S. Coast Guard have issued
Local Notices to Mariners containing a request that large vessels
transiting the Santa Barbara Channel voluntarily reduce their speed to
ten knots or less when aggregations of large cetaceans are present.
NOAA and the U.S. Coast Guard may issue future notices as conditions
warrant them. Although the rationale for these notices is to help
reduce the risk of ship strikes on whales, ancillary benefits of
reduced ship speeds generally include reduced vessel noise.
8. Comment: NOAA should consult with the Minerals Management
Service (MMS) on future proposed seismic survey activities in the
Channel and with the Navy to ascertain the likelihood of any active
sonar exercises in range of the CINMS to ensure they cause minimal
disruption to the migration or reproduction of Sanctuary species.
Response: Section 304(d) of the NMSA requires any federal agency to
consult with the NMSP on activities that are likely to destroy, cause
the loss of, or injure any Sanctuary resource (whether or not those
activities are conducted within a national marine sanctuary). This
would of course apply to both seismic and sonar activities.
Furthermore, regarding seismic activities within the Sanctuary, CINMS
regulations prohibit exploring for, developing, or producing
9. Comment: NOAA should create CINMS noise regulations and/or ban
sonar testing to help protect Sanctuary wildlife, and/or make the
enter-injure clause of the discharge regulation applicable to noise
Response: NOAA and its partners are researching underwater noise in
the Sanctuary. Currently, the available site-specific acoustic data is
insufficient to justify the need for more stringent regulations on
underwater noise than those promulgated by NMFS pursuant to the Marine
Mammal Protection Act (MMPA; 50 CFR 216.101-216.108 et seq. ). Except
in a small grandfathered lease area, CINMS regulations preclude seismic
exploration for hydrocarbons within the Sanctuary, as they prohibit
exploring for, developing, or producing hydrocarbons within the
Sanctuary. Any activities that may exceed a certain noise threshold are
subject to rigorous review under NMFS' MMPA authority, which includes
mitigation measures when deemed necessary.
While NOAA is not pursuing special noise regulations for CINMS at
this time, NOAA will continue to use its authority under section 304(d)
of the NMSA (16 U.S.C. 1434(d)) to help protect marine mammals from the
impacts of noise. Section 304(d) of the NMSA requires any federal
agency to consult with the NMSP on activities that are likely to
destroy, cause the loss of, or injure any Sanctuary resource. This
consultation requirement requires NOAA to provide recommendations to
these agencies to protect Sanctuary resources, including marine
mammals. If an agency fails to follow a recommendation and its action
results in injury to a Sanctuary resource, the agency must restore or
replace the Sanctuary resource. In addition, if a noise-producing
project is not authorized by NMFS under its MMPA authority and harms
marine mammals within the Sanctuary, the CINMS's new regulation
prohibiting the take of marine mammals, sea turtles, and seabirds would
10. Comment: NOAA staff should advocate for domestic and
international attention to and action on the current gaps in
understanding and regulation of underwater noise.
Response: As a federal agency, under federal law NOAA staff may not
advocate for legislative action. However, research and monitoring on
underwater noise in the Sanctuary is shared within NOAA and as such can
influence Executive Branch actions and decision-making related to this
issue. NOAA staff also help raise international attention to noise
impacts by participating in and sharing knowledge at conferences on
this issue. For example, NOAA sponsored a symposium with the shipping
industry on the topic of ship-quieting technology in 2004, and again in
Acoustic Impacts--Research and Monitoring
11. Comment: The FMP should explain NOAA's plans for noise research
and monitoring in the Sanctuary, which should include: Promoting
research on anthropogenic noise impacts on Sanctuary resources;
documenting and improving understanding of Sanctuary baseline and new
acoustic conditions; identifying significant sources and levels of
noise within the Sanctuary; and promoting dialogue and collaboration
between the Sanctuary, the shipping industry, and other relevant
regional and national agencies.
Response: Increasing research efforts, such as those recommended
within the National Academies' National Research Council's recent
reports on the impacts of noise on marine mammals, will assist NOAA in
continuing to evaluate the agency's management responses to this issue.
NOAA has revised the FMP's Conservation Science Action Plan to include
details on current and potential future acoustic research and
monitoring plans in the CINMS. In addition, NOAA has addressed
promoting dialogue and collaboration between relevant agencies and the
shipping industry in the Resource Protection Action Plan (see the
Description of the Issues section on Human-induced Acoustic Impacts).
NOAA's Acoustics Program, based at the NOAA Headquarters Office, is
investigating all aspects of marine animal acoustic communication,
hearing, and the effects of sound on behavior and hearing in protected
marine species. For additional information, see http://www.nmfs.noaa.gov/pr/acoustics/.
12. Comment: The FMP's Conservation Science Action Plan should
include a ``stranding strategy'' for addressing potential noise induced
marine mammal stranding events. It should address: Funding, monitoring,
data reporting (including from stranding, necropsies, and noise
events), and public involvement.
Response: NOAA has not added a stranding strategy to the
Conservation Science Action Plan. However, the Resource Protection
Action Plan (Description of the Issues section on Marine Mammal
Strikes) describes CINMS's role in responding to and reducing the risk
of future stranding events (e.g., those caused by ship strikes) in the
Sanctuary. The Action Plan reflects that in 2008, CINMS, NMFS, and the
U.S. Coast Guard, with input from the Sanctuary Advisory Council,
developed a Prevention and Emergency Response Plan for Reducing Ship
Strikes on Blue Whales and Other Large Cetaceans in the CINMS and Santa
Barbara Channel. This prevention and response plan helps NOAA and the
U.S. Coast Guard respond to stranding events and helps the agencies
coordinate with partners authorized to assist including the Santa
Barbara Museum of Natural History, and the Santa Barbara Marine Mammal
Center. NMFS manages marine mammal stranding events and administers the
Marine Mammal Stranding Network program. This program addresses funding
for stranding teams, monitoring marine mammal stranding events,
reporting on stranding causes (including those from acoustics), and
managing public involvement in necropsies. In addition, NMFS
administers the Marine Mammal Protection Act and Endangered Species
Act, and would be responsible for acquiring information on all possible
causes of stranding events. With regard to monitoring for stranding
events, the Sanctuary's Aerial Monitoring and Spatial Analysis Program
(SAMSAP) provides an important stranding detection capability that
provides important information for estimating time and location of a
large whale mortality. SAMSAP also provides details that can be used by
NMFS to coordinate a stranding response, including a necropsy, if
possible and appropriate, to determine the cause of death.
13. Comment: NOAA should incorporate into the Conservation Science
Action Plan the Advisory Council acoustic report's research and
Response: NOAA has incorporated the report by referencing it and a
summary of its findings in the FMP Resource Protection Action Plan's
Description of the Issues section. Additionally, a description of
acoustic monitoring, which was recommended in the report, has been
added to the Conservation Science Action Plan's list of monitoring
activities CINMS intends to support (Strategy CS.3). NOAA has also
referred to specific research and monitoring recommendations within
relevant activities in strategies CS.3, and CS.8.
14. Comment: The Sanctuary Aerial Monitoring and Spatial Analysis
Program (SAMSAP) program should be explicitly linked to the
Conservation Science Program so that SAMSAP's capabilities can be
analyzed with respect to more specific science and monitoring needs.
For example, SAMSAP could provide a current spatial dataset depicting
marine mammal and bird hotspots, and areas of concentrated use of large
vessels, personal watercraft, squid boat lighting, sources of major
acoustic emanations, etc.
Response: In the past, due to limited resources, SAMSAP has been
predominantly a data collection program with only limited analyses
taking place on an as-needed and time allowed basis. Since the draft
management plan was released, NOAA has devoted more resources to SAMSAP
and in depth analyses are taking place with both recently collected
data and the full SAMSAP historical database. For example, NOAA
analyzed SAMSAP vessel traffic data used in socioeconomic impact
studies related to marine zoning. NOAA is also analyzing changes in
visitor use patterns, and in partnership with the Scripps Institute of
Oceanography is combining data from SAMSAP, acoustic monitoring, and
the regional Automated Identification System (which tracks vessel
traffic) to study the impacts of vessel traffic noise on large
cetaceans. Given available funding and resources, SAMSAP will continue
to be increasingly used as a tool to assist in implementation of the
strategies in the FMP's Conservation Science Action Plan.
15. Comment: NOAA should remove the language regarding disturbing
seabirds or marine mammals from the prohibition on disturbing seabirds
or marine mammals via operating aircraft below 1000 ft within one nmi
of the Islands, thereby prohibiting the activity itself without the
enforcement challenge of proving disturbance.
Response: NOAA is currently consulting with the Federal Aviation
Administration, the primary agency of the U.S. Government with
authority to regulate safe and efficient use of U.S. airspace, to
determine the best approach to regulating impacts of aircraft on
Sanctuary resources. If removing the language in the referenced
prohibition is determined to be appropriate, NOAA will revise its
16. Comment: NOAA should justify the one nmi limitation for the
overflight disturbance regulation based on information about the
location and seabird and marine mammal concentrated use areas within
the Sanctuary (such as emergent rocks). If one of the purposes of
limiting overflights is to protect seabirds and marine mammals, it
would seem that they will be impacted beyond one nmi of the Islands and
the regulation should apply to the entire Sanctuary.
Response: Some small offshore rocks beyond one nmi from San Miguel
Island and Santa Rosa Island are emergent during lower periods of the
tidal cycle. However, the presence of these rocks is ephemeral because
most are submerged during the remainder of the tidal cycle, some are
consistently awash from wave action, and others may be completely
submerged during neap tide cycles when tides are relatively weak.
Hence, the role of such rocks as nesting, breeding, or permanent haul
out habitat is limited. Low aircraft overflights (below 1000 feet)
within these more remote offshore areas is limited, and NOAA does not
at this time regard these areas as needing the specific protection
provided by this regulation. However, all aircraft flight is also
subject to the prohibition on unauthorized take of marine mammals, sea
turtles and seabirds (Prohibition 7), which applies throughout the
17. Comment: NOAA should include in the FEIS a description of the
Energy Policy Act of 2005.
Response: NOAA has added information about the Energy Policy Act of
2005 to the FEIS cumulative effects section, and to the FEIS discussion
of federal law pertaining to offshore energy sources and mineral
exploration and development.
18. Comment: The FMP must provide clear, specific, strategic
guidelines to CINMS staff to carry out resource protection
responsibilities with regard to open finfish aquaculture, including
consulting with prospective fish farm operators and permitting
agencies, and maintaining adequate enforcement effort to ensure that
offshore aquaculture activities, even if located outside Sanctuary
boundaries, do not violate CINMS regulations such as the discharge
prohibition's ``enter-and-injure'' clause, and the prohibition on
introduction of species.
Response: The FMP does not contain guidelines dedicated to
aquaculture. However, a number of management tools already in place,
such as the permit process and consultation requirements, provide CINMS
staff with a robust means of addressing any potential issues regarding
open ocean finfish aquaculture in the Sanctuary. In addition, CINMS
existing regulations prohibit, for example, discharges in the
Sanctuary, and the new regulations prohibit introduced species into the
Sanctuary. If offshore aquaculture activities are proposed in the
Sanctuary region, NOAA's ONMS and NMFS would work closely with the
California Coastal Commission, California Department of Fish and Game,
and other relevant regulatory agencies on analyzing the associated
potential impacts and their effects on the Sanctuary. NOAA will also
use the Sanctuary Advisory Council's 2007 report and recommendations on
open ocean aquaculture, in support of any future management decisions
on this issue in the Sanctuary. Regarding maintaining enforcement
effort, see the responses to comments 118 and 120.
19. Comment: NOAA should develop management strategies for
addressing and mitigating potential impacts from aquaculture on the
Sanctuary's marine resources. NOAA should also analyze the adverse
impacts to marine resources and water quality from finfish aquaculture
farms, including genetic pollution from escaped fish, the introduction
and propagation of fish diseases and parasites, the discharge of
nutrients, antibiotics and other chemicals, the use of anti-predation
devices and the potential for space conflicts with existing commercial
and recreational activities.
Response: NOAA will continue to track the wide range of research
projects (and their associated results) currently underway along the
west coast of the United States and elsewhere analyzing the impacts of
aquaculture. NOAA would apply the results from these research efforts,
as necessary and appropriate, in decisions it may make regarding any
future aquaculture activities in the Sanctuary. Regarding management
strategies for addressing potential impacts from aquaculture, see the
response to comment 18.
20. Comment: The prohibition on altering the seafloor may conflict
with existing artificial reef programs if the Sanctuary is extended to
the mainland coast.
Response: NOAA is not making any changes to the CINMS boundary at
this time. The prohibition on altering submerged lands of the Sanctuary
precludes installation of an artificial reef without a CINMS permit.
Proposals to construct artificial reefs in CINMS
will be considered, as before, in accordance with the ``Policy
Statement of the National Marine Sanctuary Program: Artificial Reef
Permitting Guidelines.'' CINMS permit regulations would require an NMSP
determination that any proposed artificial reef: (a) Furthers the
understanding of Sanctuary resources and qualities; (b) furthers the
educational value of the Sanctuary; (c) furthers salvage or recovery
operations in or near the Sanctuary in connection with a recent air or
marine casualty; (d) assists in the management of the Sanctuary; or (e)
furthers salvage or recovery operations in connection with an abandoned
shipwreck in the Sanctuary. For more information on the procedures and
issuance criteria for Sanctuary permits, see 15 CFR part 922.
21. Comment: NOAA should prohibit rigs-to-reefs projects within
Sanctuary waters, and should consult with project applicants and
permitting agencies before such projects are allowed outside Sanctuary
boundaries if they have any potential to negatively affect Sanctuary
Response: Because there are both a national policy guiding the
consideration of artificial reefs and other CINMS regulations relevant
to artificial reefs in the Sanctuary (see the response to comment 20),
NOAA is not specifically addressing rigs-to-reefs projects in the CINMS
regulations. In addition, there are currently no oil platforms in the
Sanctuary. If in the future an applicant proposes a rigs-to-reefs
project outside the Sanctuary, CINMS staff would consult with all
relevant permitting agencies as part of the process to best understand
any potential impacts to the Sanctuary from such a proposal. Federal
agency actions, including private activities authorized by licenses,
leases, or permits, that are likely to destroy, cause the loss of, or
injure a Sanctuary resource are subject to consultation with NOAA per
section 304(d) of the NMSA.
22. Comment: NOAA should provide an exception to the abandoning
prohibition for materials intended to be used for artificial reefs,
especially if subsequent Sanctuary boundary changes cause an existing
platform(s) on the Pacific OCS to be included within the Sanctuary.
Response: As explained in the response to comment 20, NOAA has
developed Artificial Reef Permitting Guidelines. At this time, NOAA is
not adding a reef materials exception to the regulation on abandoning
matter in the Sanctuary because NOAA prefers to evaluate the efficacy
of artificial reef proposals on a case-by-case basis rather than to
provide a blanket exception that would allow any artificial reef
project anywhere within the Sanctuary.
23. Comment: The FMP/FEIS should be updated to note that the
Biogeographic Assessment has been completed, and should also explain
that the assessment ranked boundary concept 1 first for ecological
significance, and boundary concept 2 second.
Response: Text on the completion of the Sanctuary's biogeographic
assessment has been added to the FMP's Boundary Evaluation Action Plan,
the FMP's Appendix D, and the Introduction of the FEIS. For details
about the findings of the assessment, including details about the
various boundary concepts and their rankings, see http://ccma.nos.noaa.gov/products/biogeography/cinms/.
24. Comment: Boundary Concept 1 best meets the goals and objectives
of the National Marine Sanctuaries Act and the CINMS, is the only one
that truly meets the ecosystem protection goals of the Act, provides
clear and effective management, facilitates increased public
participation and support for the Sanctuary, provides more meaningful
education and research about marine resources and habitats, ensures
greater protection from harmful impacts, provides a coastal interface
that is part of the Channel Islands ecosystem, provides additional
protection from offshore oil and gas development, and will result in
partnerships that will increase marine resource and water quality
Response: As stated in the FMP's Appendix D (``Supporting
Information on Boundary Evaluation''), NOAA is not considering any
changes to the CINMS boundary as part of this management plan review.
However, NOAA will further analyze the boundary concepts in a separate
process sometime in the future. This process will include public review
and comment in accordance with legal requirements.
25. Comment: NOAA should begin the environmental review process for
boundary change alternatives now or as soon as the management plan
process is finalized.
Response: As indicated in the FMP's Boundary Evaluation Action
Plan, NOAA will further analyze the boundary concepts in a future
environmental review process.
26. Comment: NOAA might garner a lot more support for Sanctuary
boundary expansion by proposing to limit oil and gas activities while
supporting pre-existing, sustainable, commercial and recreational uses,
as opposed to re-allocating the natural resources within the Sanctuary.
Response: When NOAA considers Sanctuary boundary expansion, it will
evaluate a wide variety of potential threats to and uses of Sanctuary
resources, as well as various management measures that best address
these issues. When designating new or expanding existing sanctuaries,
NOAA will evaluate oil and gas development, as well as other commercial
and recreational uses. NOAA will consider the impacts of these uses on
Sanctuary resources, as well as the impacts of CINMS management
measures on users.
27. Comment: During the future consideration of CINMS boundary
expansion, NOAA should allow for enough public review of this action to
encompass two meetings of the Pacific Fishery Management Council (PFMC)
and allow for full PFMC deliberation and comment development.
Response: NOAA is aware of the PFMC decision-making process and
will consider providing a public review period that encompasses two
28. Comment: NOAA should address the fact that industrialized uses
could have the prospect of limiting boundary expansion.
Response: NOAA believes it is premature to include in the FMP and
FEIS conclusive statements about how CINMS boundary alternatives and
industrialized uses may relate to one another. NOAA will analyze the
relationship between industrialized uses and Sanctuary boundary
alternatives in a future environmental review process.
29. Comment: NOAA should indicate the number of comments received
that were not in favor of boundary expansion.
Response: NOAA has revised text in the FMP to indicate the number
of scoping comments received that did not support an expanded Sanctuary
30. Comment: The NCCOS Biogeographic study should not be described
as providing any new information about marine species because it using
Response: Although new data was not collected for the NCCOS
biogeographic study, it integrated data sets from various sources and
provided new statistical and spatial analyses that characterize
biological and oceanographic patterns of the Channel Islands marine
31. Comment: If incorporation of biodiversity and protection of
entire ecosystems is a goal in boundary reformulation, then the
boundaries should be extended because they do not
correspond well to existing marine ecosystem extents.
Response: Once NOAA determines that an evaluation of the CINMS
boundary is appropriate, several factors will be incorporated into the
associated environmental analysis, including the spatial extent of
regional ecosystems and areas of complex biodiversity.
32. Comment: NOAA should add to the management plan information
about the spirituality and spiritual energy of the Channel Islands, and
the Chumash connection to surrounding waters.
Response: NOAA has added text to the FMP Human Setting section, the
FMP Maritime Heritage Resources Action Plan, and the FEIS Affected
Environment/Maritime Heritage Resources section to emphasize the
spiritual significance of the Channel Islands to Chumash people.
33. Comment: Members of the Chumash community, not NOAA, should
initiate any joint paddling excursions directly with the Makah Nation.
Response: NOAA has revised the FMP's Maritime Heritage Action Plan
to clarify that NOAA's intent is not to initiate paddling excursions,
but rather to support such excursions initiated by Chumash and other
34. Comment: Information about submerged Chumash cultural resources
should be referenced to and provided by Chumash scholars and Chumash
Response: In the FMP and FEIS, NOAA has upheld the standard of
using the best available scientific information, including the best
available anthropological and archeological information regarding
submerged Chumash cultural resources. CINMS staff consulted with a
Chumash community member and expert to improve referencing and ensure
35. Comment: It is important that DMP p. 28 states that,
``Archaeologists suggest the Sanctuary may have once been the site of
Chumash villages * * *,'' because there are sites now submerged due to
changing sea level.
Response: Comment noted.
36. Comment: The management plan should explain how Chumash people
are involved in monitoring artifacts, and what federal, state and local
regulations pertain to Chumash monitoring of artifacts.
Response: NOAA has added an activity to FMP Strategy MH.4 that
describes how the NOAA will consult with the Sanctuary Advisory Council
and ask for the assistance of its Chumash Community Working Group in
clarifying existing requirements and discussing best practices
regarding protection and handling of Chumash artifacts.
37. Comment: NOAA should increase funding and planned efforts for
Strategy MHR.6 on Promoting Public Education of Chumash Native American
Response: NOAA will continue to contribute staff time and vessel
support toward the implementation of this Strategy (now referred to as
MH.6), and will continue to support the Sanctuary Advisory Council's
Chumash Community Working Group. NOAA will allocate additional
resources as funding allows.
38. Comment: NOAA should hire Chumash staff to properly implement
the Maritime Heritage Resources Action Plan.
Response: Should NOAA add any new staff positions at CINMS, such
positions must be open to all qualified individuals. In addition, NOAA
encourages individuals from all local communities to participate in the
Sanctuary's Maritime Heritage Resources Volunteer Program (see strategy
39. Comment: NOAA should establish an internship for Chumash high
school and/or college students.
Response: NOAA initiated a Chumash internship at the Sanctuary in
2008. NOAA values this internship for improving coordination and
partnership building between CINMS and the Chumash community, and as a
means to introduce Chumash students to marine conservation education
and resource protection professions. NOAA looks forward to continuing
the internship as resources allow.
40. Comment: NOAA should separate shipwreck information from
Chumash cultural information in the Maritime Heritage Resources Action
Response: The majority of the strategies contained in this action
plan bear relevance to researching, protecting, and conducting outreach
and education not only on shipwrecks, but also on Chumash cultural
sites and artifacts. However, given that NOAA regards Chumash culture,
past and present, as a special part of the Sanctuary's maritime
heritage, the FMP's planned activities to support education about
Chumash heritage are contained in a separate strategy.
41. Comment: A cave in Oregon has been recently determined to house
the oldest human remains found in North America; therefore the
reference to Santa Rosa Island as such should be revised.
Response: NOAA has revised FMP and FEIS text accordingly.
Chumash--Inclusion Across Tribal, Political, and Social Groupings
42. Comment: The documents should reflect that there are many
Chumash tribal, political and social groupings. The Chumash Maritime
Association should not be the only Chumash group considered in DMP
Strategy MHR.6 activities on Promoting Public Education of Chumash
Native American History.
Response: NOAA has added information about various Chumash bands,
tribal, political, and social groupings to the FMP Human Setting
section, and elsewhere within the FMP/FEIS documents. NOAA has listed
the Sanctuary Advisory Council's Chumash Community Working Group as the
Chumash community partner in Strategy MH.6 activities. The Chumash
Community Working Group is open to membership from the entire Chumash
community, and its purpose is to advise the Sanctuary Advisory Council,
and in turn the Sanctuary, regarding matters related to the Chumash
community. NOAA has also replaced the detailed activity and program
ideas within MH.6 with a new activity that outlines a plan to work with
the Chumash community (via the Chumash Community Working Group) to
identify mutual objectives for supporting public education about
43. Comment: NOAA should explore a government-to-government
relationship with the Chumash.
Response: As the Santa Ynez Band of Chumash Indians is a federally
recognized tribe, any interaction between the Santa Ynez Band and NOAA
occurs in the context of a relationship between two government
entities, and within the limits of the Santa Ynez Band's and the
Sanctuary's respective jurisdictions and authorities.
44. Comment: Portions of the Draft Management Plan should be
rewritten, especially under the Maritime Heritage Resources Action
Plan, because the text contains many examples of ``word and meaning
biases and conflicts.'' NOAA should work collaboratively with the
Chumash before developing the final versions of the documents.
Response: Although the Sanctuary Advisory Council's Chumash
Community Working Group was not available for meetings during the time
the final text was being prepared, CINMS staff consulted with a Chumash
community member and expert and have worked to fully respond to the
Chumash community comments received. NOAA looks forward to continuing
to partner with the Chumash community on implementation of activities
described within the FMP.
45. Comment: The Draft Management Plan contains several examples of
culturally biased language creating the perception of diminished Native
Chumash history, presence, participation and responsibility, and some
of the language conveys a patriarchal nature of the relationship
between the NOAA and the wider Chumash community. It brings an
otherwise unaware reader to the conclusion that the Sanctuary is in the
role of a necessary savior of native Chumash traditions and teachings.
Response: Text in the DMP was crafted to indicate that NOAA's role
will be one of assisting, supporting, and helping in Chumash efforts
aimed at cultural revitalization that also align with the mission of
the CINMS. NOAA staff have consulted with a Chumash community member
and expert and have worked to fully respond to the Chumash community
comments received, including by clarifying CINMS's intended role as a
supporter of Chumash initiated efforts in supporting public awareness
and understanding of Chumash heritage. NOAA looks forward to continuing
to partner with the Chumash community on implementation of activities
described within the FMP.
46. Comment: A reference to educating Chumash community members on
such topics as respectful gathering skills reflects a sense of
arrogance and difference in world view. No matter who NOAA partners
with, it cannot teach me to be respectful.
Response: Text in the DMP (strategy MHR.6, activity 3) indicated
that the CINMS role in this activity would be to help the Chumash
Maritime Association and Chumash Community Working Group provide
education and outreach opportunities for the larger regional community
regarding Chumash and environmental issues. The text also indicated
that this program would be designed primarily for Chumash people to
educate their fellow Chumash and others about Chumash heritage.
However, in an effort to ensure broader Chumash community input NOAA
has replaced this specific activity in FMP strategy MH.6 with
activities that now describe a process for working together to identify
mutual education and outreach objectives.
47. Comment: NOAA should revise text that refers to ``descendents
of'' Chumash, since such people identify themselves as Chumash, not
Response: NOAA has replaced references to ``descendants of
Chumash'' with ``Chumash.''
48. Comment: The DMP's description (at Part II-C, The Human
Setting) of the importance of the Channel Islands and surrounding
waters to humans for thousands of years is confusing and unclear.
Response: NOAA has revised this text within the FMP's section II-C.
See also the response to comment 44 for information on NOAA's efforts
to develop Chumash related text.
49. Comment: NOAA should add information about the forced
relocation of Island Chumash people.
Response: NOAA has added information to the FMP Human Setting
section, the Maritime Heritage Resources Action Plan's Description of
the Issues section, and the FEIS Affected Environment/Maritime Heritage
Resources section about forced relocation of island Chumash to the
mainland. See also the response to comment 44 for information on NOAA's
efforts to develop Chumash related text.
50. Comment: The MHR Action Plan refers to ``Native American
Artifacts,'' but the artifacts are specific to the Chumash people.
Response: NOAA has changed the text referring specifically to
Native American artifacts found in the Channel Islands to refer to such
artifacts as Chumash Native American artifacts.
51. Comment: Text about Juan Rodriguez Cabrillo's voyage of
discovery (1542-1543) improperly suggests that Cabrillo ``discovered''
the already inhabited Channel Islands.
Response: Although the text did not state that Cabrillo discovered
the Channel Islands, NOAA recognizes that the reference to Cabrillo's
``voyage of discovery'' could be construed to mean this, and as such
NOAA has revised the text accordingly.
52. Comment: NOAA should revise text that refers to Chumash people
in the past tense, because there has been no discontinuation of the
Chumash people. NOAA should also revise Strategy MHR.6 title,
``Promoting Public Education of Chumash Native American History,'' by
removing the word ``history.''
Response: NOAA made a directed effort to refer to contemporary
Chumash in the DMP and DEIS, and to ensure that there are no improper
references to Chumash people in the past tense within the FMP and FEIS.
See also the response to comment 44 for information on NOAA's efforts
to develop Chumash related text. Regarding the title of Strategy MH.6,
NOAA has changed the strategy title and text, which now describe the
Sanctuary's efforts to support public education of Chumash Native
American maritime heritage.
53. Comment: The NMSP is positioning itself for growth in any way
that it can, including by gaining the ability to assess new civil
penalties. Current law prohibiting certain activities does not provide
the potential of financial benefit for the CINMS.
Response: NOAA has maintained the authority to assess civil
penalties for violations of CINMS regulations since those regulations
took effect in the early 1980s. Congress defines the parameters of
civil penalties during the authorization and subsequent reauthorization
of the NMSA. The actual penalties levied for violations vary in
proportion to the severity of the incident and other case-specific
factors. NOAA is issuing this final rule to provide NOAA enforcement
officers and enforcement partners with enhanced regulatory tools
designed to improve protection of Sanctuary resources.
54. Comment: NOAA should not make the proposed changes to the
Sanctuary's designation document, because they are unnecessary and NOAA
has not followed the procedures required for granting CINMS new
Response: In accordance with section 304(a)(4) of the NMSA (16
U.S.C. 1434(a)(4)), the terms of designation of a sanctuary include:
(1) The geographic area included within the sanctuary; (2) the
characteristics of the area that give it conservation, recreational,
ecological, historical, research, educational, or esthetic value; and
(3) the types of activities that will be subject to regulation by the
Secretary to protect those characteristics. Under the National Marine
Sanctuaries Act, a sanctuary's terms of designation may only be
modified by following the same procedures by which the sanctuary was
designated. NOAA has followed this process to modify the CINMS terms of
designation, including the publication of a draft environmental impact
statement, proposed regulations, and draft terms of designation. NOAA
also explained why the proposed changes are necessary and analyzed each
change thoroughly in the EIS.
55. Comment: NOAA's ability to protect Sanctuary resources is
overly limited by the CINMS Designation Document. Identifying and
proposing regulations to protect Sanctuary
resources, including by extending the CINMS scope of authority is
required to fulfill the duty Congress assigned to the National Marine
Response: National marine sanctuary terms of designation typically
express the types of activities subject to sanctuary regulation in
general terms. Recognizing that environmental conditions in a sanctuary
change over time, this is necessary to allow NOAA to make appropriate
modifications to existing regulations or to regulate additional
activities that are impacting or may impact sanctuary resources (i.e.,
to allow for adaptive management). NOAA is revising the CINMS terms of
designation as necessary to provide the authority to implement its
revised proposed regulations.
56. Comment: NOAA should include an explicit ban on dumping oily
bilge water (treated or not).
Response: Although NOAA provides certain exceptions to the CINMS
discharge regulation, the discharge of oily bilge water is prohibited
by existing regulations and is also prohibited under the new
regulations. See the FEIS for additional information on and revisions
to the discharge regulation.
57. Comment: NOAA should clarify that the discharge regulation
allows for the common practice of filleting fish during the trip back
Response: NOAA considers tossing scraps overboard from filleting
fish caught in the Sanctuary during the trip back to port to be part of
the exception for fish, fish parts, or chumming materials (bait).
58. Comment: Several commenters expressed support for the proposed
exception for fish, fish parts, or chumming materials (bait) to the
CINMS discharge regulation.
Response: Comment noted.
59. Comment: Commenter is concerned about compliance with the
discharge regulation (e.g., feeding wildlife food scraps).
Response: In an effort to increase compliance with CINMS
regulations, NOAA will use an educational approach to raise awareness
of the regulation and the problems associated with feeding wildlife. An
educational approach to the issue can also be implemented through the
Public Awareness and Understanding Action Plan strategy AU.3 (Team
OCEAN) activities, including those pertaining to ocean etiquette. See
also the response to comment 120 for an explanation of how Sanctuary
regulations are enforced.
60. Comment: The exception to the enter-and-injure regulation as it
relates to discharge of fish and fish parts and chumming materials is
unnecessary, and could potentially undermine the effect, perception,
and credibility of this otherwise sound and necessary measure.
Response: NOAA is not considering removing the exception to the
CINMS discharge regulation for fish, fish parts, or chumming material
(bait) used in or resulting from lawful fishing activity beyond the
boundary of the Sanctuary. NOAA believes that such activities do not
currently pose a threat to Sanctuary resources; if in the future such
activities were to harm Sanctuary resources, then NOAA would re-
evaluate the scope of this exception.
61. Comment: A number of commenters expressed support for the
proposed prohibition on discharging or depositing from beyond the
boundary of the Sanctuary any material or other matter that
subsequently enters the Sanctuary and injures a Sanctuary resource or
Response: Comments noted.
62. Comment: The proposed prohibition on discharging or depositing
from beyond the boundary of the Sanctuary is problematic because it
enables the Sanctuary to regulate activities outside its jurisdiction;
is an unwarranted and improper extension of the Sanctuary boundaries;
the term ``injury'' is not defined, thus inviting numerous
interpretations and the potential for litigation; and the process by
which injury would be determined is not described.
Response: In order for a violation to occur of the regulation
prohibiting discharge or deposit from beyond the Sanctuary, the matter
that is discharged or deposited from beyond the Sanctuary must also
injure a Sanctuary resource or quality, except for the exceptions
listed in the regulations. Thus, operations and activities taking place
beyond the Sanctuary are only subject to this regulation if the
discharge or deposit of the matter is shown to injure a Sanctuary
resource or quality within the Sanctuary, and this regulation is not an
extension of the Sanctuary's boundary.
Injure, as defined at 15 CFR 922.3, means to change adversely,
either in the short or long term, a chemical, biological or physical
attribute of, or the viability of. This includes, but is not limited
to, to cause the loss of or destroy.
63. Comment: NOAA should apply heightened restrictions on polluting
vessels, including large vessels, watercraft and cruise ships, in the
Santa Barbara Channel, or tighten the exceptions to the discharge and
deposit prohibition with the goal of better protecting Sanctuary waters
Response: NOAA's revised Sanctuary regulations strengthen
protections against pollution from vessels by clarifying that
discharges allowed from marine sanitation devices apply only to Type I
and Type II marine sanitation devices, and by limiting graywater and
treated sewage exceptions to apply only to vessels less than 300 gross
registered tons (GRT), and oceangoing ships (not including cruise
ships) without sufficient holding tank capacity to hold graywater or
sewage while within the CINMS.
64. Comment: To best protect Sanctuary resources, the new CINMS
regulations should ban dumping hazardous waste into the Sanctuary.
Response: CINMS regulations prohibit discharging or depositing from
within or into the Sanctuary any material or other matter, with a list
of exceptions. Discharging or depositing any material or other matter
that is not included in the list of exceptions, including hazardous
waste, is prohibited.
65. Comment: Several commenters expressed support for NOAA's
proposal to prohibit discharging or depositing from within or into the
Sanctuary meals on board vessels.
Response: Comments noted.
66. Comment: The discharge and deposit regulation requires that
vessel operators must lock all marine sanitation devices in a manner
that prevents discharge of untreated sewage, without defining what is
meant by ``lock.''
Response: Locking means securing the device such that removal of a
locking mechanism (e.g., padlock, combination lock, or cable tie) is
required to enable the system to discharge raw sewage overboard. In the
case of a Y valve that toggles toilet bowl discharge between a
treatment system/holding tank and an overboard outlet, the valve handle
would need to be in the closed position for overboard discharge and
locked to prevent inadvertent and unopposed opening of the valve.
67. Comment: A number of commenters indicated that the proposed
discharge and deposit regulation does not provide the same level of
protection as California Clean Coast Act.
Response: NOAA revised the proposed CINMS discharge/deposit
regulation to prohibit the discharge of sewage from all vessels 300 GRT
or more, and the discharge of graywater from vessels 300 GRT or more,
except for oceangoing ships without sufficient holding tank capacity
for graywater. This is consistent with the Clean Coast Act. These
regulatory changes were analyzed in a Supplemental EIS (March 2008).
68. Comment: A number of commenters, including the U.S. EPA and the
California State Water Resources Control Board, expressed support for
the revised proposed discharge regulation as analyzed in the SDEIS.
Response: Comment noted.
69. Comment: One commenter supported CINMS for not providing a
sewage discharge exemption for ships greater than 300 GRT, as has been
proposed by the Northern California sanctuaries, but objected to the
revised proposed discharge regulation exceptions for graywater and
treated sewage from vessels less than 300 GRT, and graywater from
oceangoing ships without sufficient holding tank capacity to hold
graywater within the Sanctuary.
Response: NOAA acknowledges support for the revised proposed
discharge/deposit regulation as analyzed in the SDEIS; however, NOAA
has concluded that an exception for treated sewage discharge/deposit
from oceangoing ships without sufficient holding tank capacity
(excluding cruise ships) is warranted at this time. See the response to
comment 72 for more information. CINMS is maintaining the treated
sewage exception for vessels less than 300 GRT. The rationale for the
treated sewage exceptions is provided in the response to comment 70.
The exception for oceangoing ships without sufficient holding tank
capacity to hold graywater while within the Sanctuary is implemented
because, unlike cruise ships and newer oceangoing ships, some older
oceangoing ships are designed without the ability to retain graywater,
and, as such, must discharge graywater directly as it is produced. As
explained in FEIS section 4, graywater discharge from small vessels,
and from oceangoing ships without sufficient holding tank capacity to
hold graywater while within the Sanctuary, is anticipated to have a
less than significant adverse impact on the Sanctuary's physical,
biological, and esthetic resources.
70. Comment: NOAA should phase-in a total wastewater discharge ban
for all ocean-going vessels in CINMS.
Response: NOAA is not planning to phase in a total wastewater
discharge ban for all oceangoing vessels in the Sanctuary at this time
because available data do not suggest that the excepted sewage and
graywater discharges within the Sanctuary pose an unacceptable risk to
Sanctuary resources and qualities. Should information to the contrary
become available, NOAA may consider further regulation.
71. Comment: Regulations applying to large vessels should also
apply to vessels servicing those larger vessels (e.g., barges that may
be used to transfer sewage from an anchored vessel to outside of the 3-
Response: The regulations prohibit discharging from within or into
the Sanctuary sewage (treated and untreated) and graywater from vessels
300 GRT or more (unless the vessel is an oceangoing ship without
sufficient holding tank capacity--this does not apply to cruise ships).
NOAA interprets this regulation to prohibit the discharge of such
sewage or graywater even if the sewage or graywater were transferred to
a second vessel, regardless of the second vessel's size. Furthermore,
transferring sewage from an anchored large vessel seems implausible
since vessels 300 GRT or more are not known to anchor within the
72. Comment: The proposed revisions of the Sanctuary's discharge
prohibition should be consistent with the California Clean Coast Act
and include the exception for ocean going vessels without sufficient
holding tank capacity to hold treated blackwater (sewage) while within
Response: To be consistent with the California Clean Coast Act, as
well as with regulations for the Monterey Bay, Cordell Bank, and Gulf
of the Farallones national marine sanctuaries, NOAA is providing an
exception for treated sewage discharges from oceangoing ships that do
not have sufficient holding tank capacity while within the CINMS.
73. Comment: Adequate education on the proposed discharge
restrictions will ensure that oceangoing ships retain all discharges to
the greatest extent possible within the Sanctuary.
Response: Outreach and education to the shipping industry about the
Sanctuary's revised regulations is important, and NOAA will apply
educational resources toward that purpose, including outreach to the
Pacific Merchant Shipping Association.
74. Comment: The management plan fails to recognize or provide an
incentive for the use and further development of advanced wastewater
treatment systems currently installed on cruise ships, and instead,
encourages ships to construct and utilize large holding tanks and
discharge elsewhere. The targeting of cruise ships and ban on
discharges promotes older, cheaper, less advanced technology and the
use of holding tanks. The proposed discharge regulations amount to a
wholesale ban on discharges creating a disincentive to further
research, development and installation of systems that produce clean
and scientifically acceptable effluent. If discharges are harmful,
transferring them to another location would simply be transferring the
Response: The management plan recognizes the use of advanced
wastewater treatment systems by cruise ships. The SDEIS and FEIS both
acknowledge the use of these systems and their ability to dramatically
improve the quality of effluent discharged in Alaska. Currently,
however, advanced wastewater treatment systems on cruise ships do not
always function properly and even when they do, they do not always
effectively remove all contaminants. NOAA encourages the development of
new technologies to address these issues.
Similarly, the management plan does not encourage or promote
retrenchment to older, cheaper, less advanced technology. The
regulations prohibit cruise ships from discharging sewage and graywater
from within or into a particular area afforded special protection due
to its nationally significant resources. NOAA believes that
transferring discharges outside of the Sanctuary is an appropriate
resource protection measure.
75. Comment: There is no credible reason to ban cruise ship
discharges from Type II MSDs and advanced wastewater treatment systems,
and such discharges should be allowed in general, or when discharged
while the vessel is moving at or above six knots. Cruise ship Type II
MSDs meet or exceed U.S. Coast Guard standards and pose little or no
threat to the environment. The revised proposed discharge regulation
assumes that any sewage and gray water discharges, no matter the
quality, are likely to have adverse environmental impacts on the
receiving water and ambient air based on their sheer volume. NOAA
should consult with the EPA and Alaska Department of Environmental
Conservation since they have done an exceptional amount of work
regarding cruise ship effluent discharges.
Response: NOAA is not aware of any EPA or other reports showing
that treated sewage discharges from cruise ships would not pose any
discernable effect within the Sanctuary. As discussed in the SDEIS (p.
22), it is important to note that many dilution studies only consider
effluent from properly functioning MSDs, which is not necessarily the
condition of MSDs on all or most vessels. The revised regulation
addresses NOAA's concerns about failure of conventional MSDs on large
vessels to adequately treat sewage waste streams, and lack of
monitoring of those waste streams.
Regarding use of Coast Guard approved Type II MSDs, Coast Guard
standards for MSDs pertain to the design and construction of MSDs, and
procedures for certifying MSDs prior to sale, introduction or delivery
into interstate commerce, or import into the United States for sale or
resale. The Coast Guard does not test the effluent from certified MSDs
once installed onboard a vessel (except in Alaska). Simply having a
Coast Guard approved MSD on board a ship does not guarantee that a
ship's sewage discharges meet EPA discharge requirements, as
demonstrated by cruise ship sampling data in Alaska prior to
institution of more stringent discharge standards, monitoring,
inspection, and reporting requirements there.
The SDEIS and FEIS analysis of the potential impacts of cruise ship
discharges is based on both the quality and volume of sewage and
graywater discharges. Even when sewage and graywater discharges meet
MSD Type II standards for fecal coliform and total suspended solids,
there are other qualities of sewage and graywater discharges that may
be harmful, such as chemicals used to treat sewage and graywater, and
high nutrient levels, especially when discharged in large volumes. As
noted in the SDEIS and FEIS, results of cruise ship graywater sampling
in Alaska indicate that in the absence of water quality standards and
monitoring, graywater is similar to sewage in terms of fecal coliform
and total suspended solids. The SDEIS and FEIS do not analyze cruise
ship sewage and graywater discharge impacts on ambient air.
Regarding cruise ships that transit Alaska, and that use advanced
wastewater treatment systems, see the response to comment 76.
76. Comment: Rather than a ban, NOAA should consider drafting
regulations that mirror requirements in other jurisdictions, such as
Alaska, which permit sewage and gray water discharges at levels
scientifically acceptable through discharge criteria.
Response: As stated in the SDEIS and FEIS, the results of cruise
ship blackwater samples taken in Alaska indicate that blackwater from
vessels without advanced treatment systems (and not subject to
mandatory monitoring, inspection, and reporting) may contain levels of
fecal coliform and total suspended solids that exceed federal standards
for MSDs, as well as a variety of other pollutants. Unlike Alaska, NOAA
is not planning on instituting a CINMS cruise ship sewage and graywater
discharge monitoring, inspection, and reporting program. Effluent
monitoring would be cost prohibitive and infeasible, particularly for
vessels underway (large vessels do not customarily stop in the
Sanctuary). Additionally, ship discharge audits often reveal that a
discharge occurred but do not contain information on contaminant
levels. Currently, advanced waste water treatment systems on cruise
ships do not always function properly and even when they do, they do
not always effectively remove all contaminants. Therefore NOAA believes
that prohibiting cruise ship sewage and graywater discharges is the
most effective and enforceable regulation. The SDEIS and FEIS both
acknowledge the use of advanced wastewater treatment systems and their
ability to improve the quality of effluent discharged in Alaska.
However, the program adopted in Alaska is a complex arrangement
requiring issuance of a permit, prior demonstration that the ships can
meet water quality standards based on independent contractor
evaluation, environmental compliance fees, wastewater sampling and
testing protocols, record keeping and reporting protocols, on-board
observers, and a tax per passenger to fund the administration of the
program. Such a program is inherently difficult to monitor and enforce
and the NMSP has no mechanism in place for recouping the necessary
funds needed to administer it. Also, the EPA studies indicate that
although advanced wastewater treatment systems remove most of the
priority pollutants of concern they do not adequately reduce discharge
of ammonia and metals. For these reasons, the CINMS regulations
prohibit discharges from advanced wastewater treatment systems. Cruise
ships have sufficient holding tank capacity to hold their discharge as
they transit the Sanctuary.
77. Comment: CINMS should not implement new sewage discharge
regulations for small vessels because (1) existing laws prohibit the
discharge of untreated sewage from small vessels within three nautical
miles of shore; (2) existing requirements should be better enforced
instead of adding new requirements; (3) no significant water quality
issues have been noted for discharges by vessels under 150 GRT with
certified MSDs Type I, II, or III; (4) requiring untreated sewage to be
discharged further offshore would turn ``good guys'' into ``bad guys'';
(5) using the Coast Guard regulations as the standard for sewage
discharges from vessels less than 300 GRT would facilitate Channel
Islands National Park operations (i.e., kelp forest monitoring,
submerged cultural resources monitoring); (6) Coast Guard regulations
are easier to enforce since most boaters are familiar with them; (7)
prohibiting untreated sewage discharge within the entire Sanctuary
would present a trade-off between having untreated sewage discharged
further from shore and environmental impacts such as pollution costs
(including from fuel production and transportation) and energy waste
from the fuel burned to get there; and (8) a requirement to discharge
untreated sewage further offshore presents time and fuel costs to
Response: NOAA recognizes that other federal regulations prohibit
the discharge of untreated sewage within three nmi from shore; however,
CINMS regulations have prohibited the discharge of untreated sewage
within the entire Sanctuary since 1981 (the FEIS clarifies this
existing regulation). NOAA is concerned about the pathogens, nutrients,
and esthetic impacts that untreated sewage could introduce if
discharged within the Sanctuary. To date, untreated sewage discharges
have not been definitively linked to significant water quality problems
in the Sanctuary; however, this rule will ensure that such problems do
not occur in the future.
CINMS partners closely with Channel Islands National Park (CINP) on
marine operations including research, monitoring, and enforcement.
Based on NOAA's analysis of Park and CINMS vessel operations, NOAA does
not expect the clarifications to the sewage discharge regulation to
significantly impede Park operations.
Enforcement of regulations, including discharge regulations, is
important to ensure their effectiveness. NOAA intends to consider
enforcement needs during the development of the Sanctuary's water
quality protection program (see FMP strategy WQ.2). Additional outreach
and education regarding Sanctuary discharge regulations is warranted,
and NOAA intends to work with the Coast Guard,
CINP, and other key agencies to develop effective outreach tools.
NOAA believes all boaters can reasonably adapt to comply with this
regulation and practice clean boating within the Sanctuary, as was the
case when similar or more stringent regulations were adopted in other
large areas of U.S. waters (e.g., the Great Lakes, state marine waters
in the Florida Keys, and Chesapeake Bay). With proper trip planning,
necessary equipment and maintenance, and attention to sewage holding
capacity and needs, NOAA expects that boaters can take steps to avoid
special trips beyond the Sanctuary's six nmi boundary solely to
discharge sewage (after which they would continue boating within the
Sanctuary). For example, there are compact commode and portable sewage
storage systems widely available on the market.
78. Comment: NOAA should prohibit sewage sludge from large vessels
because it is produced in large quantities by cruise ships and included
in the California Clean Coast Act's prohibitions.
Response: Sewage sludge discharges/deposits are prohibited
throughout the Sanctuary.
79. Comment: CINMS should revise the discharge regulation to mirror
existing law pertaining to vessel sewage and graywater discharges and
fully prohibit graywater, sewage (untreated and treated) and sewage
sludge discharges from cruise ships and other large oceangoing vessels
throughout the Sanctuary.
Response: Regarding mirroring existing laws on vessel sewage and
graywater discharges, see the response to comment 67. The revised
discharge and deposit regulation now prohibits graywater discharges
from vessels 300 GRT or more (except oceangoing ships without
sufficient holding tank capacity to hold graywater while within the
Sanctuary); it also prohibits treated sewage discharges from all
vessels 300 GRT or more throughout the Sanctuary (except oceangoing
ships without sufficient holding tank capacity to hold sewage while
within the Sanctuary), and prohibits untreated sewage from all vessels
within the Sanctuary. The Sanctuary's discharge regulation does not
provide an exception for sewage sludge discharges.
80. Comment: The Sanctuary should not exempt military vessels from
the discharge and deposit prohibition, as they are included in the
California Clean Coast Act's sewage and sewage sludge prohibitions.
Response: NOAA believes the DOD discharge requirements under CWA
section 312(n) are sufficient to protect Sanctuary resources.
81. Comment: NOAA should delete the discharge regulation's
Response: NOAA believes there is no need to prohibit graywater
discharges from vessels less than 300 GRT within the Sanctuary at this
time. However, Sanctuary regulations would now prohibit graywater
discharges from vessels 300 GRT or more, except from oceangoing ships
without sufficient holding tank capacity to hold graywater while within
82. Comment: NOAA's discharge regulation should reflect the
California Coastal Commission's recommendation to prohibit vessels of
300 GRT or more from discharging sewage or graywater into the waters of
Response: NOAA has revised the CINMS discharge regulation to
reflect the California Coastal Commission's recommendation and prohibit
the discharge of sewage from all vessels 300 GRT or more, as well as
the discharge of graywater from vessels 300 GRT or more. Exceptions
would be consistent with the California Clean Coast Act, allowing
graywater and treated sewage from oceangoing ships without sufficient
holding tank capacity to hold these discharges while within the
83. Comment: Due to the volume of their discharges, cruise ships
should be directed around the Sanctuary.
Response: Rather than direct cruise ships around the Sanctuary,
NOAA is excluding cruise ships from the CINMS sewage and graywater
exceptions, thereby prohibiting their discharge within the Sanctuary.
84. Comment: Unless NOAA is able to institute a rigorous monitoring
and sampling program for sewage effluent from ships as Alaska has done,
it is prudent to adopt a no-discharge policy that mirrors the state of
Response: Although NOAA may implement some discharge monitoring in
partnership with other agencies, NOAA is not currently planning to
institute a comprehensive sewage effluent monitoring and sampling
program in the Sanctuary similar to Alaska's program (see also the
response to comment 75). Regarding adopting a policy that mirrors
California's law, see the response to comment 67.
85. Comment: All vessels, ships, or large vessels should hold
either all waste or sewage until they can discharge it into pump out
stations for disposal or treatment on land.
Response: The revised CINMS discharge regulation prohibits
discharging untreated sewage within the Sanctuary from vessels less
than 300 GRT, and prohibits discharging sewage (whether treated or
untreated) within the Sanctuary from vessels 300 GRT or more, except
for oceangoing ships that do not have sufficient holding tank capacity
to hold sewage while within the Sanctuary.
86. Comment: NOAA should either include sewage sludge in the
definition of ``sewage'' or explicitly prohibit sewage sludge in the
Response: Existing CINMS regulations do not provide an exception
for sewage sludge discharge/deposit; as such, these discharges/deposits
87. Comment: The prohibition of sewage sludge should be
incorporated in outreach documents.
Response: CINMS staff will consider this comment when developing
outreach products about the revised Sanctuary regulations.
88. Comment: Commenter supports the marine sanitation device
clarification in the revised proposed discharge regulation.
Response: Comment noted.
89. Comment: Commenter supports the proposed definitions of
``graywater,'' ``oceangoing ship,'' and ``cruise ship,'' as well as the
Sanctuary's effort to provide greater regulatory consistency and
clarity by establishing formal definitions for important concepts
relevant to CINMS resource conservation and management.
Response: Comment noted.
Ecosystem Based Management
90. Comment: The Management Plan refers to Ecosystem Based
Management, but there is no mention of Ecosystem Based Management in
Response: The Management Plan Introduction section refers to
ecosystem-based management and the NMSA, and it specifies the sections
of the NMSA that NOAA believes support the use of ecosystem-based
management. As stated therein, NOAA believes that ecosystem-based
management is in keeping with the NMSA's primary objective of resource
protection. Section 301(b) of the NMSA, which provides the purposes and
policies of the national marine sanctuary system, provides CINMS and
the other national marine sanctuaries with a solid framework for
ecosystem-based management. Section 301 provides that it is the purpose
of the NMSA to, among other things: (a) Maintain the natural biological
communities of the national marine sanctuaries, and to protect, and
where appropriate, restore and enhance natural habitats, populations,
processes; (b) develop and implement coordinated plans for the
protection and management of these areas with appropriate Federal
agencies, State and local governments, Native American tribes and
organizations, international organizations, and other public and
private interests concerned with the continuing health and resilience
of the sanctuaries; and (c) to create models of, and incentives for,
ways to conserve and manage these areas, including the application of
innovative management techniques. Maintaining biological communities,
and protecting, restoring, and enhancing habitats, populations, and
ecological processes (see clause a above), along with addressing the
health and resiliency of national marine sanctuaries (see clause b
above), are endeavors best suited to an ecosystem-based approach. Such
an approach is consistent with applying innovative management
techniques (see clause c above).
91. Comment: NOAA should replace the management plan's Grumbine
(1994) definition of Ecosystem Based Management with the definition
from the Scientific Consensus Statement on Marine Ecosystem Based
Management released in March 2005 (by authors including Jenn Casselle,
Jennie Dugan, Ben Halpern, Jeremy Jackson, Satie Airame, and Hunter
Response: Text in the FMP has been revised to reflect the
definition of marine ecosystem-based management from NOAA's New
Priorities for the 21st Century (NOAA's strategic plan for 2006-2011),
rather than the definition provided by Grumbine (1994). NOAA's
definition of an ecosystem approach to management is consistent with
the 2005 Scientific Consensus Statement on Marine Ecosystem-Based
Management, which is available on line at http://www.compassonline.org/marinescience/solutions_ecosystem.asp.
Education and Outreach
92. Comment: Commenters indicated support for the management plan's
education and outreach goals and objectives and the Public Awareness
and Understanding Action Plan.
Response: Comment noted.
93. Comment: Through the Public Awareness and Understanding Action
Plan NOAA should ensure that all employees and crew of Channel Islands
National Park concessionaires who bring visitors to the Sanctuary are
aware of and understand CINMS regulations and resource conservation
issues. Anecdotal evidence suggests that even major concessionaires are
not aware of CINMS regulations on matters such as vessel sewage and
wastewater discharge. NOAA should also provide an incentive for
concessionaires to participate in an education program.
Response: CINMS staff work directly with Channel Islands National
Park staff responsible for educating concessionaires through the
strategic plan mentioned in the FMP Public Awareness & Understanding
Action Plan (Strategy AU.2 activity 3). As part of the Ocean Etiquette
Outreach program (AU.3, activity 4), which promotes communication and
coordination between California ocean users and Federal and State
agencies, CINMS staff plan to engage concessionaires and other boaters
in Ocean Etiquette workshops. As the Park reviews and awards
concessionaire licenses to various operators, CINMS staff will continue
to communicate with the Park on interests and concerns regarding
concessionaire compliance with Sanctuary regulations, such as those
pertaining to clean boating practices, as well as possible compliance
94. Comment: NOAA should work with the City of Santa Barbara to
increase opportunities for effective signage and publicity.
Response: NOAA worked with the City of Santa Barbara (City) in the
mid-1990s on several CINMS interpretive signs that are located in Santa
Barbara's Shoreline Park. NOAA also works with the City each year by
participating in the annual Harbor and Seafood Festival, and serving
alongside the City, U.S. Forest Service, National Park Service and
Santa Barbara Maritime Museum as a partner in the Outdoors Santa
Barbara Visitor Center in the Santa Barbara Harbor (see the Public
Awareness and Understanding Action Plan strategy AU.7--Visitor Center
Support & Development for more information).
NOAA is currently working with the City Waterfront Department to
place signs at the Santa Barbara Harbor fuel dock and along the Santa
Barbara Harbor Fish Walk. These signs focus on CINMS, CINP, and marine
zoning, and are part of a larger NMSP sponsored initiative called the
California Signage Plan. Sanctuary interactive kiosks, like signs, are
also an important outreach tool that can help provide CINMS publicity
at various locations, such as at the City Waterfront Department office.
For information about interactive kiosks, see Public Awareness and
Understanding strategy AU.7.
95. Comment: The management plan did not indicate how NOAA would
assess the effectiveness of strategies AU.1 through AU.8.
Response: NOAA understands the importance of evaluating the
effectiveness of its programs. FMP Strategy EV.1 (Measuring Sanctuary
Performance Over Time) details how each education program or product
will be evaluated, and FMP Table 16 shows specific strategies,
objectives, performance measures and metrics for measuring
effectiveness of the Public Awareness and Understanding Action Plan.
Also, NOAA is working at CINMS to meet the NMSP's system-wide
performance measure related to education, which states that ``By 2010
all education programs implemented in national marine sanctuaries will
be assessed for effectiveness against stated program goals and
objectives and appropriate National and State education standards.''
96. Comment: NOAA should clarify for each program whether there are
plans to assure that strategies AU.1, and AU.3-AU.9 are reaching a
Response: NOAA strives to reach diverse audiences with its CINMS
education and outreach programs and materials. FMP Strategy AU.9
describes how CINMS will build multicultural elements into existing
education programs and materials, and activity 5 describes in detail
the implementation of a comprehensive multicultural education strategic
plan for Santa Barbara and Ventura Counties.
97. Comment: NOAA should consider best education practices in the
development of Strategy AU.1.
Response: NOAA education staff at CINMS use best practices when
developing educational programming. CINMS educators stay abreast of
current issues and changes in science and environmental education
content standards by participating in annual education conferences and
workshops put on by leaders in science education.
98. Comment: Given the changing make-up of our population, NOAA
should create strategies to create a diverse pool of interns and
volunteers, and should create career paths for interns from ethnic
groups under-represented in resource sciences. The latter would help
create a pool of qualified future resource scientists, technicians,
managers and leaders.
Response: As mentioned in Strategy AU.9 of the FMP's Public
Awareness & Understanding Action Plan, CINMS implements the MERITO
Hispanic Students Internship Program. Text in FMP Strategy AU.2 has
been changed to reflect these CINMS internship strategies for under-
represented youth as defined in Strategy AU.9.
99. Comment: The management plan refers to the Los Marineros
program, without explaining that this program is now defunct.
Response: NOAA and the Santa Barbara Museum of Natural History
(Museum) started the Los Marineros Program in 1987. The Museum took
over administration of the program in the mid 1990s. The Museum decided
not to continue the program after 2005, which is now reflected in the
FMP. NOAA is now working to build Sanctuary stewardship and increase
understanding of ocean related threats within the Hispanic community of
Santa Barbara and Ventura counties through strategy AU.9, Multicultural
Education. A component of this strategy is the MERITO Academy which
targets 5th-8th grade teachers and students and provides a meaningful
watershed experience through field trips to the beach and Sanctuary.
100. Comment: NOAA should mention a shift to a philosophy of
sustainability in its CINMS education programs.
Response: Since its designation in 1980, CINMS staff has been
educating the community about human impacts on the ocean environment
and working to foster a sense of personal ownership and responsibility
for care of Sanctuary resources.
101. Comment: NOAA should incorporate into education and outreach
action plans some specific programs directly facilitating compatible
use, such as brochures with simple charts indicating best places to
scuba dive, fish, kayak, view wildlife, and so forth.
Response: NOAA's ``Protecting Your Channel Islands'' brochure shows
popular anchorages, diving spots and wildlife areas (for pinnipeds and
seabirds), and provides tips for watching wildlife and a synopsis of
sanctuary and park regulations. Members of the boating and fishing
communities participated in the development of this brochure through
the Sanctuary Advisory Council and the Sanctuary Education Team. NOAA
will continue to work with boaters, fishers, and other interested
community members to develop useful brochures and other education
materials regarding responsible ways to enjoy Sanctuary resources.
102. Comment: NOAA should support or sponsor contests or festivals
that celebrate use of the Sanctuary, such as photo contests, harbor
seafood festivals, sailing regattas, and whale festivals.
Response: As indicated in FMP Public Awareness & Understanding
Action Plan Strategy AU.6, CINMS staff participation in outreach events
is identified as a tool to provide Sanctuary information to a widely
diverse audience. CINMS staff and volunteers participate in over 30
regional outreach events annually, spanning from Santa Barbara County
to Los Angeles County, serving a diverse number of constituents. Events
include whale festivals, harbor festivals, boat shows, fishing
conventions, and dive industry events.
103. Comment: NOAA education staff at CINMS should establish closer
contact with researchers whose work forms the information base used by
Sanctuary education programs.
Response: NOAA education and research program staff at CINMS work
closely together on many different Sanctuary management issues. One
example is the ongoing ``From Shore to Sea'' lecture series sponsored
by CINMS and CINP, which brings scientists studying the Channel Islands
to venues in Santa Barbara and Ventura one night per month for a public
presentation about their research. CINMS research and education staff
also collaborate on other programs and products including interpreting
research data for presentation on the CINMS Web site, annual research
summaries, and the CINMS Teacher at Sea program.
104. Comment: The management plan should mention the `Follow That
Fish!' curriculum and aquarium exhibit, which is a program that
highlights the results of fish movement studies in the Sanctuary
conducted by the Pfleger Institute of Environmental Research (PIER)
using an acoustic received array.
Response: In 2006, PIER removed its acoustic receivers and
discontinued its fish movement study project. Consequently, NOAA is not
highlighting this project in the FMP's description of educational
105. Comment: NOAA should develop a means for more timely response
to oil spills within the Sanctuary by: (1) Identifying vessels (e.g.,
local or Sanctuary vessels) capable of boom deployment and skimming
systems, (2) investigating the feasibility of the Sanctuary becoming a
Clean Seas client, and (3) providing spill cleanup/response equipment
cached at various locations in the Channel Islands.
Response: NOAA staff take an active role in spill response
preparation by representing CINMS on the Area Contingency Plan (ACP)
committee for U.S. Coast Guard Region IX. CINMS staff are also
instrumental in helping to revise the ACP to create more effective
response to spills, specifically in the area of resource protection.
The ACP is a ``cookbook'' for oil spill response that includes contact
information for responders, agencies, cleanup contractors, and vessel
and equipment resources. This information is constantly updated. Clean
Seas LLC has response vessels in place that can quickly respond to
spills within the Sanctuary. Another regional organization with vessels
and trained crew capable of responding to spills is the Ventura County
Commercial Fishermen's Association's Fishermen's Oil Response Team, or
FORT. Equipment caches kept on the islands would need to be authorized
by the National Park Service. Obtaining and placing any spill equipment
would be best done through an agency/responder partnership with those
organizations, such as the USCG and Clean Seas LLC, that have dedicated
staff with expertise in spill response and all associated equipment and
assets. For more information about how CINMS is involved in and
addresses emergencies such as oil spills, see FMP Strategy EE.1.
106. Comment: NOAA should look into whether oil facilities can
store cleanup equipment, inventory equipment already there, and
consider whether it can develop an agreement between oil companies and
sanctuaries to use that equipment.
Response: Currently oil platforms in the Santa Barbara Channel
store various quantities of booming and skimming equipment and
dispersants. Full inventory lists are kept and supplied to various
Federal, State, and local agencies involved in oil spill response, and
these lists are accessible by CINMS staff as needed. Equipment use
requires specialized training, and oil companies work with spill
response co-ops such as Clean Seas LLC, to provide equipment and
personnel for cleanup. Additionally, agencies such as the U.S. Coast
Guard can ``federalize'' (place a spill under the jurisdiction of the
Federal government if the responsible party is not responding
appropriately) an oil spill and then call in authorized, trained
contractors to help respond to the spill.
107. Comment: NOAA should look towards the future of emergency
response and find funding for Clean Seas. Currently oil spill response
is paid for by oil companies, so if oil and gas facilities are
decommissioned then Clean Seas is not likely to be here.
Response: Although CINMS staff could contribute to planning ideas
for maintaining oil spill response capabilities provided by Clean Seas,
such an effort would most likely be spearheaded by other NOAA offices
(such as NOAA HAZMAT) as well as
Federal, State, and local agencies whose primary mission is oil spill
108. Comment: Commenter expressed support for the management plan
review addressing emerging issues.
Response: Comment noted.
109. Comment: The management plan should provide a stronger link
between the Emerging Issues and Conservation Science action plans by
directing research towards evaluating emerging issues.
Response: Research coordination and integration are very important
to the evaluation of emerging issues. Within the Conservation Science
Action Plan, NOAA has added details about the link between emerging
issues and conservation science within the Conservation Science Action
Plan Overview and Strategy CS.3, as well as in Strategy RP.1. As
explained in RP.1, input from the Advisory Council, the science
community, and the public informs CINMS efforts at identifying and
assessing current and emerging issues at all stages, including
identification of issues, assessment of threats, and tracking and
responding to issues.
110. Comment: The management plan should clarify whether each
emerging issue is: (a) Forecasted to, but not presently harming
Sanctuary resources; or (b) already causing harm to Sanctuary
resources. NOAA should also develop criteria to determine when an issue
is emerging vs. when it has emerged.
Response: The FMP includes a Resource Protection Action Plan in
which NOAA has clarified and augmented information on the status of
each issue previously listed as an ``emerging issue.'' The Resource
Protection Action Plan also articulates how CINMS addresses current
issues and how it will address emerging issues. Since NOAA has outlined
how it plans to identify, assess, prioritize, and address both current
and emerging resource protection issues, it is not necessary to develop
criteria for determining when an issue has ``emerged.'' Rather, it is
NOAA's intent that CINMS track, assess, prioritize, and determine how
best to respond to all issues relevant to protecting Sanctuary
111. Comment: Strategy EI.1 could be sufficient for ``emerging
issues''--issues that have yet to cause significant harm to Sanctuary
Response: NOAA will implement Strategies RP.1 and RP.2 in
identifying, assessing, and responding to all current and emerging
112. Comment: NOAA should dedicate funding to emerging issues so as
not to depend on volunteers to research such issues, and should specify
who is responsible for implementing Strategy EI.1.
Response: The NMSP dedicates and funds policy analysts, an advisory
council coordinator, a team of research and monitoring staff, a boat
crew, and education and outreach staff to identify, assess, and respond
to emerging issues. The implementation of the Resource Protection
Action Plan relies on this existing staff structure, as noted in the
implementation section of Strategy RP.1. When an emerging issue
requires community input and/or is beyond CINMS's capabilities either
technically or fiscally, staff rely on the expertise and knowledge of
the Sanctuary Advisory Council and agency partners. For complex
emerging issues that require a CINMS response, staff have in the past
and can in the future reallocate staff time and budget, as well as
leverage other agency resources to adequately address an issue.
113. Comment: The Track Emerging Issues activity of strategy EI.1
should require that CINMS staff relay the findings of their issue
tracking activities to the Advisory Council, with whom they
collaboratively identified and prioritized the issues.
Response: CINMS staff have provided and will continue to provide
regular updates to the Advisory Council on emerging issues.
114. Comment: NOAA should define how it will ``track'' emerging
Response: The Resource Protection Action Plan identifies the ways
in which CINMS will identify and track emerging issues in the
115. Comment: NOAA should include marine bioprospecting, offshore
energy projects (e.g., wind and wave energy), global greenhouse gas
emissions, global warming, and squid boat lights in its list of
Response: NOAA has included marine bioprospecting, offshore energy
projects, climate change, and wildlife disturbance caused by artificial
lighting as emerging issues in the FMP's Resource Protection Action
116. Comment: The DMP's Emerging Issues Action Plan defers
Sanctuary resource protection to a bureaucratic process with no
allocated funding, and offers minimal specificity as to when or how
management effort will be deployed to mitigate or eliminate impacts
from emerging issues.
Response: All CINMS activities ultimately contribute to resource
protection, which is the primary purpose of the National Marine
Sanctuaries Act. The FMP's Resource Protection Action Plan outlines
processes for tracking, assessing, prioritizing, and determining how to
respond to current and emerging resource protection issues (processes
previously contained in an Emerging Issues Action Plan). These
processes are essential to determining how to respond to a given issue
at a given point in time, based on the best available information, and
depending on available funding and the level of risk or priority for a
given issue. Unfortunately, NOAA cannot predict when an issue will
become a high priority and what the appropriate response at that time
might be. Should, for example, NOAA determine that a given issue
warrants development of a new action plan strategy, or perhaps even a
new action plan, NOAA's plan for action would be articulated in those
Regarding funding, while the Resource Protection Action Plan's
estimated cost table does not reflect potential future investments in
CINMS resource protection issues, CINMS does request additional funds
to address high priority resource protection issues in a given year as
part of its annual budget planning process. Further, the budget table
does not show base budget funding (e.g., staff salaries) which is
critical to tracking, assessing, prioritizing, and determining how to
respond to current and emerging resource protection issues.
117. Comment: DMP Strategy EI.2 includes several constructive
options for addressing resource protection issues, which if implemented
could reduce impacts to Sanctuary resources from resource protection
Response: Comment noted.
118. Comment: NOAA should ensure that sufficient funds/resources
are available for enforcement and increase available funding for
Response: NOAA recognizes resource limitations and necessary
program and partner developments may limit implementation of all of the
activities in the management plan. NOAA will continue to work with the
Department of Commerce, Office of Management and Budget, and Congress
in developing supporting justifications when preparing budget
submissions. NOAA allocates funds provided by Congress through annual
appropriations for national marine sanctuaries and from other sources
of funding (e.g., settlement funds) to enforcement of the NMSA and
implementing regulations. In doing so, however, NOAA must balance the
need for increased enforcement with other
management needs (e.g., science and monitoring, education). NOAA uses
these funds to leverage additional investments in enforcement by
partner agencies (CDFG, NPS, USCG) to have an effective on-the-water
presence in the Sanctuary. NOAA's Office for Law Enforcement, which is
funded separately from the Sanctuary budget, also assigns a law
enforcement agent to the Sanctuary region.
119. Comment: Team OCEAN should be deleted from the Expanding
Enforcement Efforts section, Strategy EE.2 and included in the Public
Awareness and Understanding Action Plan.
Response: In addition to traditional enforcement, NOAA employs
interpretive enforcement through Team OCEAN, a program that reaches out
to boaters to help them understand and comply with CINMS regulations.
Team OCEAN will not be administered as a substitute for law
enforcement, but can complement those efforts. Team OCEAN will remain
in the Emergency Response and Enforcement Action Plan because it is an
important tool for both emergency response and enforcement. While Team
Ocean is mentioned briefly as an activity within strategy EE.2, it is
explained in detail in the Public Awareness and Understanding Action
Plan (Strategy AU.3).
120. Comment: NOAA must ensure the regulations for CINMS are
legally binding and enforceable, must have a dedicated/exclusive
enforcement program for the CINMS, and/or must establish formal
partnerships with as many enforcement agencies as possible.
Response: Primary law enforcement responsibilities for NOAA
regulations are carried out by the NOAA Office for Law Enforcement
(OLE). An enforcement officer stationed in Long Beach conducts
investigations into violations of the National Marine Sanctuaries Act
and regulatory prohibitions in coordination with State, local and other
Federal law enforcement counterparts. In addition, NOAA signed
agreements with the State of California, the National Park Service, and
the U.S. Coast Guard that provide authorization for local enforcement
personnel from these agencies to enforce Sanctuary regulations. They
work with NOAA to conduct patrols and investigate potential violations.
For example, the U.S. Coast Guard conducts air and sea surveillance
within the sanctuary and has broad Federal enforcement authority. NOAA
OLE also works with the U.S. Fish and Wildlife Service, the U.S.
Environmental Protection Agency, and the Federal Bureau of
Investigation (FBI) to investigate violations of environmental laws
within national marine sanctuaries. More information about enforcement
of NOAA regulations can be found at http://www.nmfs.noaa.gov/ole/index.html.
The CINMS regulations are legally binding and enforceable. They
were drafted with extensive input from NOAA's Office of General
Counsel, NOAA Office of Law Enforcement, and our enforcement partners--
CDFG, NPS and USCG. NOAA's Office of General Counsel for Enforcement
and Litigation also establishes a penalty schedule that outlines
recommended penalties for violations under the NMSA. This penalty
schedule provides notice to the public and provides guidance to the
prosecutors as to a general range of penalties for specific violations.
The penalty schedule reflects sanctions that NOAA believes will
encourage compliance and deter violations; however, in every case, NOAA
retains the ability to assess a penalty up to the statutory maximum of
$130,000. The NMSA penalty schedule is publicly available and can be
accessed through this link: http://www.gc.noaa.gov/schedules/58-NMSA%20Penalty%20Schedule%209-06.pdf.
121. Comment: NOAA should not issue the new regulations for CINMS
and should instead rely on existing regulations and authorities for
Response: NOAA carefully examined existing CINMS and other relevant
regulations as part of the management plan review, and determined that
in some cases strengthening of Sanctuary regulations was warranted, as
described in section 2 of the FEIS. NOAA often relies on other
agencies' regulations to help protect sanctuary resources. However,
sometimes the scope of these regulations is not broad enough to protect
sanctuary resources, or may need to be reinforced with parallel
sanctuary regulations, which allow for additional enforcement options.
NOAA always works very closely with other agencies to minimize
potential management conflicts and to promote compliance with sanctuary
regulations and the regulations of other agencies.
122. Comment: NOAA should increase, rather than maintain at current
levels, vessel and aircraft surveillance operations.
Response: NOAA will pursue opportunities to expand vessel and
aircraft based surveillance, but will first focus efforts on
maintaining access to existing opportunities and platforms for this
activity. To better reflect this NOAA has changed the activity title to
``Maintain Effective Vessel and Aircraft Surveillance Operations.''
123. Comment: To ensure that CINMS discharge regulations are being
complied with, NOAA should conduct snapshot water quality monitoring,
perhaps immediately following cruise ship transits through the CINMS,
as well as at other key times of high vessel traffic.
Response: CINMS will consider snapshot water quality monitoring
during implementation of FMP Strategy WQ.2--Water Quality Protection
124. Comment: Commenter strongly supports additional efforts by
CINMS to expand enforcement efforts in order to ensure compliance with
new and existing Sanctuary regulations, as well as other federal and
state laws and regulations.
Response: Comment noted.
125. Comment: Several commenters expressed concern about regulating
fishing activities under the CINMS regulations and NMSA, making one or
more of the following points: There is no connection between the
overall management of CINMS as both a Sanctuary under the NMSP and an
EFH designation under NMFS.
NOAA should utilize the Magnuson-Stevens process for fishery
management, and the Pacific Fishery Management Council should be the
body to adopt fishery regulations within the Sanctuary and to ratify
any marine reserves designation.
NOAA has no functional MOU between the NMSP and NMFS concerning
marine zoning, fishery management planning, and ecosystem based
NOAA should revise each of the CINMS prohibitions to provide
exemptions for all lawfully conducted state and federal fisheries.
The CINMS has no need or the resources necessary to be involved in
Response: NOAA considers both the National Marine Sanctuaries Act
(NMSA) and the Magnuson-Stevens Fishery Conservation and Management Act
(MSA) to be tools that can be used exclusively or in conjunction to
regulate fishing activities to meet Sanctuary goals and objectives.
NOAA evaluates regulatory options on a case by case basis to determine
the most appropriate regulatory approach to meet the stated goals and
objectives of a sanctuary. If NOAA determines additional regulations on
fishing within CINMS are necessary, NOAA will follow the process for
developing such regulations
in consultation with the PFMC and State, and as directed under section
304(a)(5) of the NMSA.
For example, the recently designated marine reserves in the CINMS
resulted from a coordinated regulatory effort among the Pacific Fishery
Management Council, NMFS and NMSP. Under the MSA, bottom contact gear
is prohibited in these zones. The NMSA was used to create no take zones
and complement the bottom contact gear prohibition by prohibiting all
other extractive activities, including fishing.
NOAA strives for cooperative and adaptive management among its
various offices including NMFS and the NMSP, and does not typically
establish MOUs for this purpose. The NMSP and NMFS regularly
collaborate to integrate zoning and fishery management by jointly
participating in Sanctuary Advisory Council and Regional Fishery
Management Council meetings, information and data exchanges, and
cooperative enforcement of zoning and fishery regulations within
national marine sanctuaries.
Where NOAA has deemed it appropriate, the CINMS regulations provide
exceptions for lawful fishing activities.
NOAA has the expertise to determine the goals and objectives
necessary to protect the nationally significant resources of national
marine sanctuaries. This responsibility extends beyond fishery
resources to conservation, recreational ecological, historical,
cultural archeological, scientific, educational and esthetic qualities
of national marine sanctuaries. If NOAA, in consultation with advisory
councils and other stakeholders, determines that fishing regulations
are needed to further sanctuary goals and objectives, section 304(a)(5)
of the NMSA requires that the Sanctuary provide the appropriate Fishery
Management Council the opportunity to prepare draft sanctuary fishing
regulations for the Exclusive Economic Zone that will fulfill the
Sanctuary's goals and objectives.
126. Comment: NOAA should add wording to protect rights to fish and
recreate in Sanctuary waters in the emergency regulations.
Response: NOAA is not modifying the emergency regulations section
of the terms of designation for the purpose mentioned. In the case of
an emergency within the Sanctuary, fishing or recreating may
temporarily not be appropriate or possible in certain areas. For
example, when Alaska Airlines Flight 261 crashed in the Sanctuary in
January 2000, a temporary navigational closure was established around
the crash site. These emergency provisions are not used lightly, can
only be in place temporarily (as long as necessary to respond to the
emergency), and are subject to extensive administrative review. Many
federal and state agencies have authority to issue temporary emergency
regulations in response to emergency situations, such as natural or
127. Comment: NOAA has completely ignored its commitment to the
fishing community at CINMS from the public awareness goal.
Response: NOAA continues to carry out its education and outreach
commitment to the fishing community at CINMS. NOAA has engaged the
fishing community in the development and delivery of several outreach
tools, for example: Regulatory brochures, signage at harbors, and guest
speaking opportunities to the Sanctuary Advisory Council and general
128. Comment: NOAA should recognize the CINMS fishing community as
a cultural resource.
Response: NOAA recognizes the importance of the fishing community
and provides opportunities for its involvement in Sanctuary research,
education, and resource protection activities, such as in development
of outreach tools (see also the response to comment 127), and in
advising CINMS through the Commercial Fishing and Recreational Fishing
seats on the Sanctuary Advisory Council. Moreover, NOAA believes
healthy fisheries within a national marine sanctuary are an indication
of a healthy ecosystem protected by that sanctuary. NOAA has already
incorporated, and will continue to incorporate, fishing themes into
CINMS education and outreach efforts, such as public lectures and
weather kiosks. CINMS staff will also continue to work with the fishing
community to develop additional fishing-related programs and products.
129. Comment: Reductions in commercial and recreational fishing
vessels can result in economic impacts, including impacts on boat
owners, the fuel dock, boatyard, and Port District.
Response: In the FEIS, NOAA has concluded that recreational and
commercial fishing should experience no significant adverse impacts
from implementation of the revised CINMS regulations. Furthermore,
these regulations would not result in a ``reduction'' in commercial and
recreational fishing vessels. A number of the regulations provide
specific exceptions to accommodate lawful fishing activities. In
addition, the management plan includes a number of programs that
support boating in general (e.g., safe boating brochure, the Protecting
Your Channel Islands brochure), and that should also be helpful to
boaters engaged in fishing.
130. Comment: General support expressed for the changes and updates
proposed in the management plan, and the associated background
information and environmental analysis.
Response: Comment noted.
131. Comment: Broad support expressed for resource conservation and
protection, and acknowledgement that the Sanctuary is ``moving in the
right direction.'' NOAA should not, however, over-regulate or adopt
regulations that are inconsistent with other agencies.
Response: Comment noted.
132. Comment: General support indicated for DEIS Alternative 1 due
to concern about increased use of the Santa Barbara channel by cruise
ships, interest in long-term protection of resources and existing
Sanctuary uses, and concern about protection against predicted future
increases in industrialization of the Santa Barbara Channel area.
Response: Comments noted. For additional context, see the responses
to comment 283 regarding support for Alternative 1 as it relates to
water quality, comment 78 regarding support for the Alternative 1
discharge regulation, comment 176 regarding support for the Alternative
1 lightering regulation, and comment 221 regarding support for the
Alternative 1 nearshore vessel approach regulation.
133. Comment: Support expressed for CINMS to retain its current
role focusing on and facilitating public and scientific attention on
the Channel Islands area, and prohibiting certain industrial extractive
activities within the Sanctuary.
Response: Comments noted.
134. Comment: The DMP and DEIS are so large and burdensome that
they prohibit real public input.
Response: NOAA believes that the length of the documents is
appropriate and necessary to explain the justification for, and analyze
alternatives to, the revisions to the Management Plan and associated
regulations, as required by the NMSA, the National Environmental Policy
Act (NEPA), and other relevant authorities including the Administrative
Procedure Act. NOAA believes the organizational structure should allow
readers to find information pertinent to their specific interests.
135. Comment: NOAA must update the current policies and programs at
CINMS to develop a plan that will
enhance protection of Sanctuary resources for future generations, and
succeed in achieving the goals and objectives of the National Marine
Response: NOAA implemented changes that will update current CINMS
policies and programs, and enhance protection of Sanctuary resources.
136. Comment: Commenters indicated that they would like to
incorporate by reference, and/or support all or a subset of the
Sanctuary Advisory Council's Conservation Working Group comments.
Response: Please refer to responses to the Conservation Working
Group's comments, listed in the table at the beginning of the FEIS
response-to-comments appendix under ``Krop, Linda'' and dated July 7,
137. Comment: NOAA should invest (fiscally or through dedicated
personnel) in the National Park Service's long-term kelp forest
monitoring program or other marine-based resource monitoring programs
to further knowledge of the ecosystem.
Response: NOAA values the kelp forest monitoring program
implemented by the National Park Service, and intends to continue
providing vessel and staff support to this important program as
resources allow. NOAA strongly supports cooperative management of
Sanctuary resources by promoting and coordinating the efforts of
outside research groups whose work increases understanding of Channel
Islands biological and cultural resources. Enforcement, monitoring,
education, and outreach efforts are achieved through partnerships with
various state and federal agencies, universities, private institutions
and non-profit organizations. CINMS provides its partners with
opportunities onboard its research platforms, including the R/V
Shearwater and, historically, the Seawolf aircraft. In 2006, CINMS
research vessels were at sea for more than 200 days conducting projects
on seabirds, marine mammals, kelp forests, oceanography, intertidal
monitoring, and geology in and around the Sanctuary. Further, a
proportion of the CINMS annual budget has been and continues to support
partner research, monitoring and enforcement activities.
138. Comment: NOAA should consider and be guided by the special and
unique nature of the islands and surrounding waters in crafting the
Management Plan, regulations, and programs.
Response: The special and unique characteristics of the Islands and
surrounding waters were significant factors in the decision to
designate the waters surrounding the Islands as a national marine
sanctuary, and remain the overarching reason for revising CINMS
regulations and implementing a variety of programs.
139. Comment: NOAA should provide adequate resources and funding
levels to implement the management plan, especially given increased
requirements from the recently designated Channel Islands MPA Network.
Response: NOAA recognizes that resource limitations as well as the
necessary program and partner developments may limit implementation of
all of the activities in the various management plans. NOAA will
continue to work with the Department of Commerce, Office of Management
and Budget, and Congress in developing supporting justifications when
preparing budget submissions. The Management Plan articulates the full
suite of potential CINMS actions for the next five to ten years.
However, CINMS's budget may not allow for a high level of
implementation of every planned activity. NOAA has described the
planned implementation level of each activity in various future funding
scenarios (see the FMP Action Plan Summary Table). Regarding funding
and marine protected areas see the response to comment 118.
140. Comment: Language in the management plan is subjective and
Response: NOAA has been as specific and transparent as possible in
describing planned actions in the CINMS management plan and EIS. As a
federal resource management agency, NOAA must meet federal standards of
objectivity and transparency in describing the actions and rationale
for planned management actions within national marine sanctuaries.
141. Comment: NOAA does not identify the new threats used to
justify regulation changes.
Response: NOAA has described threats to Sanctuary resources and
qualities that warrant new and revised CINMS actions in the beginning
of each action plan under the header ``Description of the Issues,'' as
well as throughout the Sanctuary's FEIS and in this preamble to the
142. Comment: NOAA should focus on practical, precise, and prudent
CINMS management actions and enforcement, rather than expanding
Sanctuary authority beyond its means. Additional changes should only be
seriously discussed or considered if these efforts indicate further
need of beneficial adjustment.
Response: NOAA considered such concepts prior to proposing the
CINMS revised management plan, revised authority and regulations. Per
the National Marine Sanctuaries Act, NOAA is required to evaluate
sanctuary management plans and regulations at regular intervals. During
the course of management plan reviews, NOAA solicits public and agency
input to help determine the extent to which sanctuary management plan
changes may be warranted, as well as to help determine the nature of
any such changes.
143. Comment: Despite a new Sanctuary office building to be built
on the campus of UCSB, NOAA should continue to maintain a public CINMS
presence at the waterfront, which is heavily used by both residents and
visitors. Most members of the public will not be exposed to the offices
at UCSB, because they do not travel there regularly, because of high
parking fees, and for various other reasons.
Response: NOAA plans to keep a CINMS office in the Santa Barbara
Harbor to support operations of the R/V Shearwater, and to maintain a
public access contact point at the Santa Barbara Harbor through
educational signage and a brochure rack (currently part of Santa
Barbara Harbor office). NOAA has also installed a Sanctuary interactive
kiosk at the Santa Barbara Harbor and plans to continue a partnership
with the Harbor's Outdoors Santa Barbara Visitor Center. In partnership
with the Santa Barbara Maritime Museum at the Santa Barbara Harbor,
NOAA also intends to maintain and develop public education exhibits
relating to maritime heritage.
144. Comment: Support expressed for NOAA's development and support
of on-going CINMS partnerships with a variety of local institutions, as
well as a focus on water quality and teacher training, all of which is
a benefit to the community.
Response: Comment noted.
145. Comment: NOAA should explain how a subset of the NMSA purposes
and policies were selected and listed in the management plan's
Introduction section, as opposed to listing all of the NMSA's purposes
Response: The list of purposes and policies provided in the FMP is
a complete, verbatim list of the purposes and policies of the NMSA.
NOAA has revised the text introducing the list to clarify that it is a
complete and verbatim list.
146. Comment: Did NOAA review the original management plan, did it
work, and why or why not?
Response: Sanctuary staff thoroughly reviewed the 1983 management
plan's goals and objectives, and assessed the extent to which they were
accomplished, as well as the continuing relevancy of each. Staff then
engaged in a similar discussion with the Sanctuary Advisory Council in
1999. In general, NOAA has made progress towards accomplishing the
broad goal areas of the original CINMS plan: Resource protection,
research, interpretation, and visitor use. Through enforcement of
regulations and collaboration with other agencies and constituents NOAA
has enhanced protection of Sanctuary resources. NOAA has made strides
towards directing research efforts to resolving management concerns and
increasing understanding of the Sanctuary environment and resources,
including through use of the Sanctuary's research vessels. NOAA has
developed interpretative programs that enhance public awareness and
understanding of the significance of the Sanctuary and the need to
protect its resources. NOAA has encouraged commercial and recreational
use of the Sanctuary that is compatible with protection of its
significant resources, such as placing trained naturalists on board
commercial whale watching vessels. Within the Introduction to the FMP,
NOAA has added text to describe the review of the 1983 CINMS management
147. Comment: NOAA has used science to support the notion of new
threats in CINMS that is so selective it does not meet basic ethical
standards for science. NOAA should provide data to support new threats
such as: Declines in bird populations, evidence that nutrient cycles
are disrupted relative to humans visiting, kelp forests being in
decline in fished areas, and showing that predator prey relationships
govern ecosystem functions and are compromised with any size frequency
data on harvested populations.
Response: NOAA must comply with all federal standards, such as the
National Environmental Policy Act, the Administrative Procedure Act,
and the Data Quality Act, regarding the use of science. NOAA did not
make any of the statements mentioned about Sanctuary resources
(declines in bird populations, etc.) in the CINMS management plan.
Similarly, NOAA has not made statements in the management plan about a
new threat from evidence that nutrient cycles are disrupted relative to
humans visiting. However, in the FEIS NOAA does discuss and provide
references for information indicating that sewage and graywater
discharges have the potential to disrupt nutrient cycles. Finally, NOAA
has not made statements in the management plan indicating that predator
prey relationships govern ecosystem functions and are compromised with
any size frequency data on harvested populations.
148. Comment: NOAA should develop a Man in the Biosphere program
Response: The Sanctuary Advisory Council is the body that develops
working groups to discuss Sanctuary issues. NOAA recommends that the
commenter provide this suggestion directly to the Sanctuary Advisory
149. Comment: NOAA should create a budget for an independent
community GIS program to foster social justice and oppose NMSP
Response: The NMSA does not direct NOAA to develop social justice
programs, and such efforts would be outside the scope of actions
proposed in the CINMS management plan. NOAA disagrees with the
commenter's assertion that the NMSP is engaged in ``neocolonialism.''
150. Comment: NOAA should not refer to life forms as ``resources''
in the text of the management plan.
Response: ``Resource'' is a broadly defined term in the Office of
National Marine Sanctuaries' program wide regulations (15 CFR 922.3) to
include all components within a sanctuary that contribute to the
conservation, recreational, ecological, historical, research,
educational, or aesthetic value of the Sanctuary (15 CFR 922.3). The
use of this term does not intend to connote that sanctuary components
are valued solely on the basis of their potential for human use or
151. Comment: Since people go to the islands to enjoy them, NOAA
should regulate without excluding the public, such as dive charter
vessels, and without restricting where vessels moor.
Response: Consistent with purposes and policies of the NMSA, NOAA
facilitates public and private uses of the national marine sanctuaries
to the extent that such uses are compatible with the primary goal of
resource protection, and not prohibited by other authorities. The
revised CINMS regulations prohibit most vessels 300 GRT or more from
approaching within one nmi of island shores. Such vessels are
consequently precluded from mooring at the Islands. Sanctuary users
must also comply with all applicable regulations while in the
Sanctuary, not only with CINMS regulations. The California Department
of Fish and Game and Channel Islands National Park seasonally limit
access to certain nearshore areas of the Islands during seabird
152. Comment: NOAA should use forward thinking and the best
environmental protections to protect the Channel Islands from an array
of new threats and pressures, especially since new threats may emerge
before the next management plan review.
Response: Strong environmental protections are necessary for the
Sanctuary, and the management plan should be forward thinking. The NMSA
requires NOAA to review national marine sanctuary management plans at
regular intervals. Should any threats to Sanctuary resources arise
between management plan review cycles, NOAA can take action to address
such threats without engaging in a management plan review process,
consistent with applicable authorities (see Resource Protection Action
Plan Strategy RP.2).
153. Comment: The CINMS management plan should connect management
of coastal resources with the Sanctuary, recognizing that there is
connectedness between a lot of pelagic fish species and the Sanctuary.
NOAA should not manage the Sanctuary as if it is isolated from these
Response: NOAA manages CINMS resources with the understanding that
the Sanctuary exists in a coastal ocean environment within which
administrative boundaries do not provide a barrier between resources
inside and outside of the Sanctuary. Pelagic fisheries in the Sanctuary
region are managed by NMFS (with recommendations from the Pacific
Fishery Management Council) under the MSA, as well as by the California
Department of Fish and Game. CINMS consults with these and other
partner resource agencies regarding any implications for Sanctuary
resources that may result from management actions both within and
outside of the Sanctuary. In addition, the NMSP West Coast Region works
to integrate strategies and programs across west coast national marine
sanctuary sites, and also to coordinate efforts with other federal,
state, local, and regional ocean management agencies. See also the
response to comment 31 for information about marine ecosystem extents
and expanding the Sanctuary.
154. Comment: NOAA should demonstrate, through specific CINMS
programs, that it encourages compatible use. This is an important
component in boosting CINMS's image as being friendly to local
Response: NOAA encourages compatible use through several CINMS
program areas. Education and outreach programs, for example, develop
and distribute the ``Protecting Your Channel Islands,'' ``Boating &
Safety,'' and the ``Protecting Our Seabirds'' brochures with this
purpose in mind (see also the response to comment 101). These
brochures provide information and helpful tips about various activities
people may enjoy in the Sanctuary, such as diving and fishing, and how
to do so in a safe and responsible manner. In addition, several pages
on the CINMS Web site provide information about how to get to the
islands, as well as information about the best times of year to engage
in certain activities. The CINMS Maritime Heritage Program provides
information to divers about recommended shipwreck dive sites, while
Research and Monitoring Program staff work closely with researchers
from all over the world to facilitate appropriate research within the
Sanctuary. The Sanctuary Advisory Council includes members from diverse
user groups, several of which have active working groups.
155. Comment: Frustration expressed that NOAA, at the time the DMP/
DEIS was released, was still only at the stage of developing a process
for dealing with marine reserves and boundary expansion issues, both of
which have received strong public support in the Ventura and Santa
Response: NOAA believes in ensuring that the best available science
is used in national marine sanctuary decision making, and in dedicating
sufficient resources to each environmental review project. NOAA values
the public support for processes to consider establishing marine
reserves within the Sanctuary, and to evaluate the Sanctuary boundary.
NOAA has since completed implementation of a network of marine reserves
and marine conservation areas within the Sanctuary (72 FR 29208). NOAA
determined that the best manner in which to evaluate the CINMS boundary
was to first conduct a comprehensive biogeographic assessment of the
Sanctuary and surrounding environment. Now that the biogeographic
assessment is complete, given sufficient resources, NOAA plans to
initiate the environmental review process for boundary evaluation at an
appropriate time in the future.
156. Comment: The management plan update process that started in
1999 has been very lengthy and the remaining steps of converting the
draft plan to final should be completed as expediently as possible.
Response: NOAA values the efforts of everyone involved in the CINMS
management plan review to date. The length of this review is due to
many factors, including that the CINMS management plan review was the
first comprehensive management plan review the NMSP initiated for the
national marine sanctuaries designated prior to 1995. The CINMS
management plan review was also lengthened in order to address issues
concerning large vessel discharge raised by the California Coastal
Commission and others during the public comment period on the DMP/DEIS.
NOAA determined that addressing such issues required development of an
SDEIS, and providing a supplemental public comment period.
157. Comment: The management plan's action plans should be both
well funded and adequately staffed, perhaps with the assistance of the
NMSP's West Coast Region, to carry out the Sanctuary's programs and
Response: As part of the management plan review process, CINMS
staff worked to prioritize the strategies and activities in the
management plan's action plans (see Appendix A1 of the FMP for a table
identifying how each activity will be maintained or implemented in the
future). Staff from the West Coast Regional Office (WCRO) work on
management issues that are primarily regional in scope; they also work
with individual sanctuaries on priority management activities that
would benefit from the WCR staffs' expertise.
158. Comment: The management plan should include a Memorandum of
Understanding (MOU) between various Federal and State agencies,
including the Coastal Commission, to better respond to current water
quality issues and conditions. The MOU should reflect the Plan for
California's Nonpoint Source Pollution Control Program.
Response: Although NOAA does not envision drafting an MOU among
various Federal and State agencies as a direct activity associated with
this CINMS management plan review, the agency recognizes the important
role of MOUs in better articulating roles and responsibilities among
the multitude of management authorities that typically exist within
national marine sanctuary regions (see Strategy OP.3 in the FMP for a
description of how the NMSP formalizes relationships with other
authorities). The NMSP has implemented several MOUs across the
sanctuary system (including several at CINMS) and, if appropriate, may
do so again in the CINMS region sometime in the future. This could
involve MOUs related to water quality protection. NOAA recognizes the
importance of state agency partners, and the value of consistency among
respective programs to the extent practicable.
159. Comment: The management plan's Action Plan activity ``status''
descriptions should be explained in more detail to include specific
dates, if possible, or at least be revised to include some definition
of the phrase ``years 1-5.''
Response: NOAA has included specific dates, where possible, to
describe the status of activities in the FMP. NOAA has added
information to explain the meaning of years 1-5, which now appears in
the FMP's Action Plan Background section entitled, ``How Are Action
160. Comment: The DMP's description of the Sanctuary Setting could
be augmented by recent information that has been recently made
available through the NCCOS Biogeographic Assessment report.
Response: NOAA has revised FMP text to reference the biogeographic
assessment (NCCOS 2005).
161. Comment: The islands are special, unique, and Congressionally
recognized as a place for extra protections, whereas there are other
areas to take large vessels and personal watercraft.
Response: Comment noted.
Global Climate Change
162. Comment: NOAA should address climate change/global warming and
its effects on Sanctuary resources. NOAA should: (1) Formally
acknowledge the threat of global warming and work to better understand
how global warming may affect Sanctuary resources, (2) reduce
greenhouse gas emissions associated with CINMS operations, and (3)
advocate, through appropriate administrative channels, for the
deployment of a national response to global warming to reduce its
impacts on the climate, and thus on CINMS resources.
Response: NOAA has added language to the FMP's Resource Protection
Action Plan that explains how the NMSP and NOAA are assessing potential
climate change impacts on national marine sanctuaries and how such
impacts may be mitigated. NOAA has also added a strategy to the FMP's
Operations Action Plan that discusses how CINMS is working to green its
operations. Finally, NOAA has added information to the FMP's
Conservation Science Action Plan strategy CS.3, about pursuing
development and future monitoring of a carbon budget for the Sanctuary.
NOAA would consider data and findings from this work as part of its
collective scientific efforts to inform climate policy.
163. Comment: NOAA should explain why the old and new CINMS goals
are so different.
Response: In general, goals from the 1983 CINMS management plan are
encompassed within the new goals articulated in this FMP. NOAA revised
the CINMS management plan to better explain that the original goals are
missing several important concepts and nuances encompassed in the
National Marine Sanctuaries Act and reflected in the new goals for the
Sanctuary (as revised for the FMP).
164. Comment: NOAA should clarify if the CINMS goals presented in
the management plan are new, and who decided upon them.
Response: NOAA determined that CINMS goals should directly reflect
the overarching mission of the ONMS and be derived from the purposes
and policies of the NMSA, as enacted by Congress. All of the seven
goals provided in the DMP were paraphrased from section 301 of the
NMSA. NOAA has since decided to use language taken directly from NMSA
section 301, rather than to paraphrase it. NOAA has also added two
goals that contain concepts from NMSA section 301 that were previously
missing from the CINMS goals, and additional explanation regarding goal
165. Comment: CINMS goal four (i.e., provide comprehensive and
coordinated conservation and management of these marine areas, as well
as the activities affecting them, in a manner complementing existing
regulatory authorities) has yielded new prohibitions that are vague and
enabling, duplicate other regulations, and are inconsistent with the
CINMS charter. NOAA should rewrite the goal to state ``* * *
complementing, but not duplicating * * *.''
Response: The new prohibitions are not inconsistent with the CINMS
terms of designation (referred to above as the ``charter'').
Furthermore, the NMSA provides authority for, among other things, ``* *
* comprehensive and coordinated conservation and management of these
marine areas, and activities affecting them, in a manner which
complements existing regulatory authorities.'' The CINMS terms of
designation acknowledge that the NMSA ``authorizes the promulgation of
such regulations as are reasonable and necessary to protect the values
of the Sanctuary.'' As evidenced by the analysis in the FEIS, the new
prohibitions meet this criterion.
While CINMS may have similar regulatory prohibitions as another
agency, NOAA has crafted CINMS regulations to be complementary.
Further, the NMSA provides a different suite of penalties than
available under another regulatory authority.
166. Comment: Ecosystem-based management is adaptive, but given
that it has been 25 years since the last management plan, it is not
clear whether Sanctuary goals are adaptive.
Response: CINMS goals directly reflect the findings and purposes
and policies of the NMSA. These findings, purposes and policies are
very broad, encompass all of the actions identified in the FMP, and
have been adapted several times during reauthorization of the NMSA by
Congress. In turn, the CINMS goals are broad enough that CINMS can
adapt its management actions as necessary.
167. Comment: NOAA should make the CINMS goals more consistent with
the NMSA by using the word ``facilitate'' instead of ``allow'' in goal
six, by encouraging compatible public and private commercial and
recreational use, and by adding goals for science and monitoring.
Response: NOAA has revised the CINMS goals to make them more
consistent with the NMSA. A new goal three regarding support for
science and monitoring has also been included.
168. Comment: CINMS has not honored its commitments to programs
and stonewalled basic data management. CINMS goals five, six, and seven
are empty promises with no budget.
Response: FMP Strategy CS.2 is dedicated to comprehensive data
management. Regarding goal five (now six), NOAA believes the CINMS
marine zoning process demonstrates strong models for conserving and
managing national marine sanctuaries and applying innovative management
techniques. Regarding goal six (now seven), CINMS provides education
and outreach materials aimed at facilitating public and private uses of
resources that are compatible with resource protection. These materials
help Sanctuary users understand and learn about activities they may
enjoy within the Sanctuary, and where certain types of activities are
prohibited. Regarding goal seven (now eight), CINMS cooperates
regularly with national and international programs encouraging
conservation of marine resources. CINMS frequently hosts international
delegates interested in learning about Sanctuary issues and how CINMS
is addressing them. CINMS staff also represent the ONMS and NOAA in
exchanges with marine resource management agencies in other countries,
and participate in international conferences focused on marine
conservation. CINMS staff also often cooperate with national programs
encouraging conservation of marine resources (see the FMP for specific
examples). The FMP does not describe a budget for each goal. Budgets
are developed for action plans, which are designed to meet CINMS goals.
169. Comment: Commenters support the Sanctuary's new introduced
species prohibition, efforts to prevent the release of introduced
species in the Sanctuary, and the exemption under this prohibition for
striped bass released during catch and release fishing.
Response: Comment noted.
170. Comment: The prohibition on releasing introduced species may
conceivably put an angler in a position of non-compliance with
regulations from other entities if the angler catches an introduced
species that is not legal to catch (per such other entities), but the
angler cannot release it due to the CINMS prohibition. The final
regulation should leave an angler with a safe and legal course of
Response: NOAA is not aware of any state or federal fishing
regulations that would require an angler to release an introduced
species caught in the Sanctuary. Thus, complying with this regulation
on releasing introduced species would not place an angler in a position
of non-compliance with regulations from other entities. Furthermore,
NOAA encourages recreational anglers to assist in collecting
information about introduced species by keeping specimens and sharing
them with NOAA and other resource management agencies, such as the
California Department of Fish and Game.
171. Comment: The regulation prohibiting the introduction of
introduced species should have an exemption for aquaculture or
mariculture activities pursuant to a valid lease, permit, license, or
Response: Intentionally introducing species or experimenting with
new introduced species is not an appropriate activity in national
marine sanctuaries because introduced species may threaten the
diversity or abundance of native species or the ecological stability of
waters in which they occur. They may also threaten commercial or
recreational activities dependent on sanctuary waters. The California
Department of Fish and Game (CDFG) asserts ``invasive species are the
number two threat to rare, threatened or endangered species nationwide,
second only to habitat destruction,'' (Leet et al. 2001). Although
national marine sanctuaries retain authority to address this threat to
sanctuary resources, the NMSP would work very closely with the
State of California regarding any aquaculture proposals that might
arise in the Sanctuary area.
172. Comment: NOAA should add a specific action plan in the
Education and Outreach area to educate Sanctuary users how to comply
with the prohibition on introduced species, such as a ``Keep your boat
bottom clean!'' information brochure.
Response: Education, especially boater education, about introduced
species is important. Introduced species in the Sanctuary are an
emerging resource protection issue. The FMP action plans are meant to
be living documents that incorporate the most current resource issues
in the Sanctuary into our plans and programs. NOAA has not added a
separate action plan on introduced species; however, CINMS plans to
incorporate education about introduced/invasive species into education
programs and materials. The Long-term Monitoring and Experiential
Training for Students (LiMPETs) program (Strategy AU.1, activity 5)
monitors algal and invertebrate species on the Channel Islands and may
be a program where invasive species education can be incorporated.
CINMS staff also participate in annual efforts sponsored by the Santa
Barbara Waterfront Department and California Department of Fish and
Game to remove the invasive Japanese kelp, Undaria.
FMP Strategy AU.6, activity 1 (Boater Safety Tips Brochure) also
addresses introduced species by including information related to
boating safety, regulations on discharge in the ocean and sanctuary,
clean boating practices, and local marine refuse stations.
Additionally, as explained in Strategy AU.6, activity 5, CINMS
participates in a variety of outreach events each year including whale
festivals, harbor festivals, boat shows, and dive industry events.
These events include boater outreach where education about a variety of
CINMS regulations and issues, including aquatic nuisance/invasive
species, is shared with the public and boaters. Any tool or product
mentioned under Strategy AU.6 will be updated to reflect any changes to
173. Comment: NOAA should explain how Sanctuary research vessels
are going to comply with the new prohibition on introduced species,
especially given that they are docked in a port containing invasive
Response: CINMS regularly inspects and cleans its vessels and
equipment in order to minimize the risk of our activities being a
vector for introduction of invasive species. CINMS is also working with
the Santa Barbara Waterfront Department to assess and mitigate the
threat of invasive Japanese kelp in Santa Barbara Harbor.
174. Comment: Given that the proposed Sanctuary prohibition on
introduced species is largely redundant of State regulation, the
Sanctuary should support the existing, spatially comprehensive
authorities that are addressing the invasive species problem,
especially where the Sanctuary is at risk.
Response: NOAA supports existing regulatory authorities on
introduced species. However, the CINMS regulation for introduced
species differs from similar laws and regulations in that it: (1)
Provides place-based protections specifically for CINMS; (2) prohibits
transgenic species introductions in both state and federal waters of
the Sanctuary; and (3) prohibits introducing or otherwise releasing
species beyond the one nmi offshore Channel Islands National Park
boundary. Furthermore, the introduced species regulation establishes a
deterrent against intentional and unintentional introductions or other
releases of introduced species into the Sanctuary through civil penalty
(up to $130,000 per incident, per day) under the NMSA. Finally, this
regulation prohibits introductions of species native to California but
not native to the ecosystems of the Sanctuary.
175. Comment: NOAA should clarify the burden of proof for enforcing
the prohibition on introducing introduced species by adding an ``intent
to release'' provision.
Response: NOAA enforcement personnel maintain prosecutorial
discretion in determining whether or not to prosecute violators of
CINMS regulations. NOAA is not incorporating ``intent to release'' into
the language of the prohibition because it does not think there should
be a requirement of intent in the regulation.
176. Comment: NOAA should adopt the prohibition on lightering
included in Alternative 1 to further Sanctuary resource protection,
protect against lightering related oil spill impacts, and further
protect water quality.
Response: NOAA has decided not to include the lightering
prohibition in the CINMS regulations at this time because large scale
vessel lightering does not occur in the Sanctuary, and NOAA does not
believe it is likely to become a common practice given the Sanctuary's
geographic location (i.e., its distance from major ports), the Area to
Be Avoided that advises large vessels to avoid the majority of the
Sanctuary (excluding the TSS), and the established traffic patterns
within the Sanctuary (e.g., large vessels typically transit the
Sanctuary through the TSS). Regarding smaller vessels, NOAA understands
that the occasional practice of sharing fuel between boats (also a form
of lightering) may occur, and that this practice may help prevent other
possible problems such as vessel groundings. For now, existing
prohibitions against discharges into the Sanctuary will be used to
address spills associated with small-boat to small-boat fuel transfers.
Should lightering become an issue that NOAA deems necessary to regulate
in the future, NOAA may consider proposing a Sanctuary lightering
regulation. Although NOAA is not prohibiting lightering activities at
this time, all vessels must still comply with the CINMS discharge and
177. Comment: The lightering prohibition in Alternative 1 should
include an exception for emergencies. For example, if a vessel loses
power, drifts into and becomes embedded in the islands, it would need
to be lightered.
Response: NOAA is not including the lightering prohibition in the
CINMS regulations at this time (see the response to comment 176).
However, note that the lightering prohibition described in Alternative
1, as with most Sanctuary regulations, includes an exception for ``an
activity necessary to respond to an emergency threatening life,
property, or the environment.''
Liquefied Natural Gas
178. Comment: NOAA should prohibit Liquid Natural Gas projects
within CINMS boundaries. NOAA should also address impacts from LNG
projects outside the Sanctuary boundary through early consultation with
project applicants and permitting agencies. If such projects would harm
Sanctuary resources, they should not be permitted. NOAA should also
maintain adequate enforcement effort so that if LNG projects violate
CINMS regulations, such as the discharge regulation's ``enter and
injure'' clause, or the introduced species regulation, the violations
are prosecuted and properly mitigated.
Response: CINMS regulations include prohibitions on disturbing the
seabed, and discharging or depositing within the Sanctuary in the
absence of a Sanctuary permit. Installing and operating LNG terminals
within CINMS would likely involve such activities. If an LNG project
applicant were to seek permits for activities that would otherwise be
prohibited by CINMS regulations, it is unlikely that such a
project could meet the criteria for issuance of a CINMS permit.
The presence of the Sanctuary is recognized as important in
decisions regarding permits for LNG projects in the region, and was
recently cited by the Governor of California as part of his rationale
for denying the Cabrillo Port LNG proposal. Any LNG project proposed
outside the Sanctuary, but in the Sanctuary region, would likely be
subject to consultation per section 304(d) of the NMSA, which requires
that federal agency actions internal or external to a national marine
sanctuary, including private activities authorized by licenses, leases,
or permits, that are likely to destroy, cause the loss of, or injure
any Sanctuary resource, are subject to consultation with the NMSP. This
provision of the NMSA provides NOAA with the opportunity to formally
recommend alternative courses of action for the applicant. NEPA, the
APA, and the Deepwater Ports Act also provide opportunity for inter-
agency consultation. In addition, the Sanctuary prohibition on
discharging or depositing from beyond the boundary of the Sanctuary any
material or other matter that subsequently enters the Sanctuary and
injures a Sanctuary resource or quality would apply to discharges/
deposits from LNG projects located outside the Sanctuary.
NOAA law enforcement efforts for CINMS will continue per the
cooperative mechanisms currently implemented in the Sanctuary. For more
detail on cooperative enforcement efforts, see the response to comment
179. Comment: In the DMP, NOAA inappropriately identified as
``marine bioprospecting'' a research project that was funded by MMS in
conjunction with the University of California at Santa Barbara (UCSB)
This term as used in the DMP implies a sustained removal or harvesting
of a marine resource. However, the UCSB project was a limited time
sampling of marine organisms on oil and gas platforms, the purpose of
which was to isolate compounds with anti-cancer and anti-inflammatory
potential for further research. Ultimately, the goal of any such
successful compounds would be synthesis of the new drugs in
laboratories rather than purification of these from collecting.
Response: The referenced project was appropriately identified as
marine bioprospecting. As stated in the DMP and in the FMP, marine
bioprospecting is the activity of seeking a useful application,
process, or product in nature. However, NOAA has added further
explanation of the MMS-UCSB research project to the FMP.
180. Comment: The FMP's Offshore Water Quality Monitoring Strategy
should include systematic monitoring of anthropogenic marine debris,
per a recommendation in the Sanctuary Advisory Council's 2005 report: A
Water Quality Needs Assessment for the Channel Islands National Marine
Response: NOAA has been working and will continue to work in
partnership with the marine debris researchers from the University of
California Davis and the Algalita Marine Research Foundation to conduct
surveys of and remove marine debris from the Sanctuary. The NOAA Marine
Debris Program has supported some of this work, and CINMS staff look
forward to pursuing additional opportunities to work with this Program.
For more information about CINMS's future plans to address water
quality issues, including marine debris, see the response to comment
181. Comment: The impact of marine debris and derelict fishing gear
on natural and cultural resources in the CINMS is not well understood
and deserves to be investigated.
Response: As mentioned in the FMP's Maritime Heritage Action Plan
(Strategy MH.1, Activity 2), during regular monitoring of cultural
resource sites, divers will remove marine debris and derelict fishing
gear when it is feasible and safe to do so. With regard to
understanding impacts on natural resources, NOAA is supporting marine
debris removal work within CINMS (see the response to comment 180) that
is improving our understanding of the extent and potential impacts of
lost fishing gear.
182. Comment: General support expressed for NOAA's efforts to
complete the establishment of the Channel Islands MPA network.
Response: Comment noted.
183. Comment: A crucial data gap exists for marine reserve
monitoring in that a spatially explicit data set of commercial and
recreational fishing does not exist, or is poor. NOAA should analyze
the potential of the Sanctuary's aerial survey program for filling this
gap by providing all or part of a spatial depiction of current fishing
Response: NOAA has analyzed the Sanctuary's aerial survey data, in
conjunction with other spatially explicit relevant information to
depict current fishing effort. NOAA provided this analysis in the FEIS
on marine reserves (http://channelislands.noaa.gov/marineres/main.html).
184. Comment: NOAA should aggressively defend the NMSP's
jurisdiction over the establishment and management of marine reserves
within the existing Sanctuary boundaries.
Response: In 2007, NOAA completed a Final EIS and Final Rule that
established a network of marine zones, including marine reserves, in
the federal waters of the Sanctuary (three nmi to six nmi) (72 FR
185. Comment: The management plan indicates a bias toward area
closures over other forms of management (see DMP strategies CS.6 and
MZ.2). Closures purported to be precautionary are questionable. In
addition to area closures, NOAA should consider the effectiveness of
methods to attain resource protection goals, improve and recover
habitat and fisheries, such as: Restricting trawling and other bottom
tending gear, restricting fishing during spawning seasons, size/slot
limits, bag limits, catch and release, and closure of a particular
fishery for a period of time (successful with Atlantic striped bass,
and Gulf of Mexico Red Drum). NOAA should also take a more
comprehensive management based approach, which would protect all areas
within the Sanctuary. This could include integrating the results of
various research components to assist all management strategies, not
just marine reserves.
Response: NOAA considered a wide range of management measures in
developing the FMP and associated regulations. Marine zoning is an
important and effective marine management tool that, when coupled with
other management tools, provides the Sanctuary and its resource
management partners a wide range of management approaches. The NMSP
action related to marine reserves is addressed in a separate NEPA
action, see http://channelislands.noaa.gov/marineres/main.html. Full
consideration and review was given to existing and traditional fishery
management approaches to marine resource management. NOAA determined
that existing and traditional fishery management approaches are not
sufficient to meet the Sanctuary's goals. The State of California
reached a similar conclusion in adopting the state waters portions of
186. Comment: Regarding strategy CS.6 (Marine Reserves Monitoring),
the Pacific Fishery Management Council would be a valuable source of
information on management measures
that have been successful in protection of both habitat and fisheries.
Response: Comment noted. The NMSP has consulted with the PFMC
extensively and will continue to engage the PFMC for their fishery
management information and expertise. The NMSP also formally consults
with the PFMC on matters concerning fishing regulations and Sanctuary
resources through NMSA sections 304(d) and 304(a)(5).
187. Comment: Regarding strategy CS.6 (Marine Reserves Monitoring),
the intent of the activity entitled, ``Utilize Existing CINMS Research
and Monitoring Programs in Support of Marine Reserves,'' is unclear.
The programs listed in the activity are programs to document the status
of all of the sanctuary. It is difficult to see how such activities
``support'' marine reserves. It also seems to imply that CINMS, prior
to completing the marine reserves designation process in federal
waters, expects to promote such reserves as a means to address habitat,
seabird and kelp preservation.
Response: Marine reserves are expected to have both direct and
indirect effects within and outside their borders. Many of the existing
CINMS research and monitoring programs were originally designed to
broadly measure change and gauge the overall health of Sanctuary
resources. However, in some cases they can be adjusted to specifically
monitor marine reserve performance as well as the sanctuary as a whole.
For example, the Channel Island National Park's and PISCO's kelp forest
ecosystem monitoring programs' sampling designs have been modified to
increase their ability to measure change over time in marine reserves
in comparison to nearby control areas.
188. Comment: DMP Strategy MZ.2 (Consideration of Marine Reserves
and Conservation Areas) contains language in the activity that is
unclear regarding the purpose of Pacific Fishery Management Council
(PFMC) regulations because it seems to suggest that a marine reserve
determination has already been made.
Response: Language in the DMP was not intended to suggest that a
final determination about federal marine reserves designation within
CINMS had been made prior to conclusion of the consultative process
with the PFMC. In May 2005, NOAA presented the PFMC, per section
304(a)(5) of the NMSA, with an opportunity to prepare draft fishing
regulations to meet the goals of the CINMS marine zones. Section
304(a)(5) requires that the relevant Fishery Management Council be
given the opportunity to prepare draft fishing regulations within the
Exclusive Economic Zone (EEZ) of the sanctuary (the CINMS EEZ is from 3
to 6 nm offshore the northern Channel Islands). The PFMC responded and
recommended that fishing regulations for the CINMS marine zones in
federal waters be implemented through the existing authorities of the
MSA and the State of California. In November 2005, the PFMC directed
its staff to work with NMFS to implement fishery closures within the
CINMS zones consistent with California law.
In 2006, to mitigate fishing impacts to groundfish essential fish
habitat (EFH), the PFMC approved Amendment 19 of the Pacific Coast
Groundfish Fishery Management Plan that, in part, recommended
designation of the CINMS as EFH and the existing and proposed CINMS
marine zones as Habitat Areas of Particular Concern (which have
corresponding regulations to prohibit fishing). Based on a review of
the existing factual and scientific evidence, NOAA promulgated
regulations prohibiting the use of bottom-contact fishing gear in these
areas under the MSA.
The NMSA was used to complement the bottom contact gear prohibition
and create no take zones that prohibit all other extractive activities,
including fishing. The FMP has been updated to reflect the conclusion
of the designation process for the Channel Islands MPA Network.
189. Comment: Commenter supports both activities outlined under the
DMP's General Marine Zoning Strategy (MZ.1).
Response: Comment noted. This strategy is now RP.3 in the FMP's
Resource Protection Action Plan.
190. Comment: The management plan's Marine Zoning Action Plan
should provide a spatial representation of all restrictions/zones, and
regulations with a spatial feature in the Sanctuary.
Response: NOAA has augmented the discussion of existing zones
within the Sanctuary in the FMP's Resource Protection Action Plan
(Strategy RP.3 background section). Although NOAA agrees that a spatial
database of various marine zones, data, and features is important and
useful for Sanctuary management, a map that attempts to show the
complex spatial management and regulatory regimes within CINMS would be
overwhelming and complicated to display, and may not prove useful for
coastal managers or the general public. NOAA has been developing a
spatial database of management zones within and adjacent to CINMS, as
well as biological and socioeconomic monitoring activities.
191. Comment: NOAA should consider using marine zoning for:
Derelict/abandoned fishing gear, vessel traffic, light pollution,
corals and structure-forming organisms, and bottom-tending fishing
Response: Bottom-tending fishing gear is now prohibited within the
marine zones designated as marine reserves and marine conservation
areas in the Sanctuary. NOAA is not establishing additional marine
zones to address the remainder of the issues mentioned at this time for
reasons including insufficient information available to support such
action, non-zoning measures already in place, or pre-existing zones.
NOAA does, however, regard marine zoning as an important tool for
consideration and application where appropriate. As described in the
FMP's Resource Protection Action Plan, NOAA will identify, track, and
where appropriate, respond to Sanctuary resource protection issues. For
some issues, the evaluation process may include consideration of marine
zoning, where appropriate.
192. Comment: The Department of Defense should not continue to be
exempt from CINMS rules because it has a bad record of disturbing,
harming, and killing endangered species with underwater sonar, which
should not happen in the Sanctuary.
Response: The NMSP works closely with NMFS regarding assessment of
the potential impacts of DOD activities on Sanctuary resources, and how
DOD should address such potential impacts. As the revised CINMS
regulations state, in the event of destruction of, loss of, or injury
to a Sanctuary resource or quality resulting from an incident,
including, but not limited to, discharges, deposits, and groundings,
caused by a DOD activity, DOD, in coordination with the Director, must
promptly prevent and mitigate further damage and must restore or
replace the Sanctuary resource or quality in a manner approved by the
Director. Furthermore, all DOD activities must be carried out in a
manner that avoids to the maximum extent practicable any adverse
impacts on Sanctuary resources and qualities.
193. Comment: NOAA should remove the exception for military vessel
discharge of sewage and sewage sludge from the discharge prohibition.
Response: NOAA has determined that the regulation of DOD vessel
discharges by section 312(n) of the FWPCA (Clean Water Act) is
sufficient at this time.
194. Comment: Commenter supports the proposed prohibition on mining
activities within the Sanctuary.
Response: Comment noted.
Motorized Personal Watercraft (MPWC)
MPWC--Inappropriate Use of Studies
195. Comment: Studies cited and information used to support the
proposed MPWC prohibition were outdated, inaccurate, of poor quality,
biased, and/or from locations other than the Channel Islands.
Response: NOAA consulted a variety of sources in developing the
prohibition on MPWC operation within one nmi of the Channel Islands.
The sources comprise available literature on MPWC impacts, as well as
existing enforcement data from CINP Rangers and other enforcement
agencies. NOAA is not aware of any MPWC impact studies conducted in the
Channel Islands. This is not surprising, given that the National Park
Service has banned the use of MPWC in the Channel Islands since 2000.
Given this lack of site-specific data for MPWC impacts, the data and
observations from other locations (including the Monterey Bay National
Marine Sanctuary) are relevant to CINMS, especially data on flushing of
nesting birds and disturbance of marine mammals. NOAA has received
written and oral reports of MPWC users disturbing sea otters, harbor
seals, porpoises, dolphins and other wildlife in various areas of the
Monterey Bay National Marine Sanctuary since implementation of the
regulation in 1993. Sometimes, due to high surf conditions, operators
are unaware of their disturbance of wildlife.
196. Comment: In citing information from the Massachusetts Office
of Coastal Zone Management Personal Watercraft Management Guide (MOCZM
2002), CINMS irresponsibly selected particular passages that support a
PWC ban, from a document that advocates managing PWC use and provides
much data to support management tactics short of bans. In addition, the
MOCZM document was published in 2002 and could not, at that time,
include the most up-to-date technological innovations. CINMS should
seek the most current, accurate and peer reviewed data.
Response: Regarding the MOCZM document advocating managing MPWC
use, this document proposed a variety of different management
techniques regarding MPWCs, including an outright ban for particularly
sensitive or difficult enforcement areas. CINMS fits both of these
criteria, with many rare, endangered or sensitive species and a remote
environment which makes behavior-based enforcement impossible without
extensive enforcement resources. Moreover, CINMS is not banning MPWC
throughout the Sanctuary, but only in the sensitive nearshore zone from
zero to one nmi offshore. The amount of scientific research conducted
on the topic of MPWCs and wildlife disturbance has not increased
significantly since 2002. However, additional information on MPWC use
was added to the FEIS Affected Environment, Human Uses, Nonconsumptive
Recreation and Tourism section on Motorized Personal Watercraft for
197. Comment: NOAA should not prohibit MPWC from operating within
one nautical mile of the Channel Islands.
Response: As explained in the response to comment 200 NOAA believes
that the Sanctuary prohibition on MPWCs within one nautical mile of the
Channel Islands will assist in achieving the NMSP's primary mandate of
resource protection. Because the NPS already prohibited MPWC operation
within one nautical mile of the islands in 2000, the Sanctuary MPWC
prohibition will not result in adverse socioeconomic impacts. NOAA does
not prohibit any individuals from visiting the Sanctuary or the
Islands, and this prohibition is not designed to keep some members of
the public from doing so.
198. Comment: NOAA should not ban MPWC use beyond one nmi in the
Sanctuary because this would prohibit MPWC use at a known tow-in
Response: NOAA is not prohibiting MPWC use beyond one nmi. NOAA is
aware of tow-in surfing activities off San Miguel Island; however, the
tow-in surfing location is beyond one nmi and as such would not be
affected by the Sanctuary prohibition.
199. Comment: NOAA should address/prohibit unacceptable MPWC
operator behavior, and/or wildlife disturbance (except for fishing)
rather than prohibit MPWC use.
Response: NOAA is not considering the ideas suggested as an
alternative to the prohibition on MPWC use within one nmi of the
Channel Islands because the use of MPWC in this zone has already been
prohibited by the NPS since 2000.
200. Comment: NOAA should not duplicate the existing NPS regulation
that prohibits MPWC operation within one nmi of the Channel Islands.
Response: The use of MPWC within one nmi of the Channel Islands has
been prohibited by the NPS since 2000. NOAA is mirroring the existing
MPWC prohibition to provide an added deterrent to illegal MPWC use
within the nearshore areas of the CINMS and CINP (the CINMS regulation
carries a maximum civil penalty of $130,000 per incident, per day). The
CINMS MPWC prohibition provides an additional legal authority through
which to prosecute violators of the MPWC prohibition.
201. Comment: NOAA's characterization of MPWCs as producing high
emissions, being noisy, and/or being hazardous to the ocean and
environment is incorrect. New MPWC designs are clean and quiet.
Response: The MPWC industry has reduced noise and emissions with 4-
stroke engines, and NOAA has revised the description of MPWC in the
DEIS. See the updated FEIS Affected Environment, Human Uses,
Nonconsumptive Recreation and Tourism section on Motorized Personal
Watercraft for revisions. However, NOAA is not aware of studies that
have demonstrated the extent to which these improvements have reduced
wildlife disturbance. NOAA's prohibition on the operation of MPWC
within one mile of the islands is due primarily to the potential for
wildlife disturbance rather than concerns about emissions. While
emissions and noise from MPWC have been reduced, it is not clear that
they are now insignificant. NOAA is still concerned about the effects
of oscillating sound caused by persistent throttling of the engine
during repeated acceleration/deceleration within the surf zone, which
is often necessary to avoid capsizing and rolling. Research and
observations have shown that this frequent oscillating sound pattern is
particularly disruptive to wildlife. Finally, NOAA is unaware of
information indicating the immediate breakdown of oil from MPWCs.
202. Comment: MPWCs have less of an impact on kelp and aquatic
vegetation than do other vessel types, as discussed in the
Massachusetts Office of Coastal Zone Management Personal Watercraft
Management Guide (MOCZM 2002).
Response: The potential for damage to aquatic vegetation is reduced
in MPWCs as compared with that for propeller
driven vessels. However, the referenced document (MOCZM 2002) also
makes the following statement about PWC operation: ``However, PWC are
frequently operated in ways that enhance their capacity to damage
seagrass communities. For example, PWC are often used in shallow water
areas, where their jet wash is more likely to kick up sediments. PWC
also tend to kick up more sediment when operators are performing
acrobatic maneuvers, traveling at slower speeds or rapidly
accelerating. These activities tilt PWC back into the water column and
direct their jet wash downward into underlying sediments and seagrass
beds. PWC-related seagrass damage may also be exacerbated if PWC
operation is spatially and/or temporally concentrated. Multiple PWC
circling about in that same vicinity may have a greater impact than a
single PWC traveling through the same area.'' With respect to MPWC
impacts on kelp beds, the enclosed propulsion system of MPWC will not
cut through kelp as will vessels with conventional outboard motors. The
EIS text referring to impacts on kelp has been revised to reflect this
203. Comment: The National Park Service EIS's on personal
watercraft use found that these craft cause no adverse or lasting
impact. NOAA's EIS did not discuss the National Park Service's
Response: There are 21 units in the national park system (generally
national recreation areas or national sea/lakeshores) where the
legislative purpose of the unit may permit use of MPWCs. In those units
which have considered authorization of MPWC use, impacts were
identified and requirements identified to mitigate the impacts to
acceptable levels for those units. These findings were site-specific
and generally included substantial limits on the operation of MPWCs.
However, the NPS, via regulation, has determined that MPWC use is
generally inappropriate in units of the National Park system due to
likely ecological or visitor impacts. Under NPS regulations finalized
in 2000 and revised in March 2007 (36 CFR sec. 3.9(a)), Channel Islands
National Park is closed to MPWC use.
MPWC--Extend Ban Beyond 1 NMi Offshore
204. Comment: NOAA should extend the prohibition beyond one nmi to
include the entirety of CINMS waters (i.e., six nmi from the Islands),
consider prohibiting MPWC use in certain sensitive areas outside the
one nmi limit, such as near emergent rocks or other resource-attracting
features, or consider a temporal ban on MPWC outside of one nmi to
protect pinnipeds and birds.
Response: NOAA is not extending the prohibition on MPWC beyond one
nmi of the Islands (defined in the CINMS terms of designation as San
Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island,
Santa Barbara Island, Richardson Rock, and Castle Rock) at this time,
and believes that the one nmi ban provides the appropriate level of
compatible use consistent with the protection of Sanctuary resources.
The new prohibition on taking a marine mammal, sea turtle or seabird
allows sufficient enforcement flexibility for activities occurring
outside the one nmi MPWC ban area. Additionally, overlaying the
existing CINP ban provides important benefits for cooperative
enforcement. NOAA, in conjunction with the CDFG and other partners,
will continue to monitor the use of MPWC within other areas of the
Sanctuary. If this monitoring indicates adverse impacts to wildlife or
other Sanctuary resources, NOAA could consider additional management
actions as part of an adaptive approach to managing the Sanctuary. Any
future regulatory actions taken by NOAA would be subject to the
appropriate environmental analysis under the National Environmental
Policy Act (NEPA) and public review and comment per the requirement of
the Administrative Procedure Act.
205. Comment: NOAA is focusing too much on the semantics of the
definition of a Motorized Personal Watercraft.
Response: As explained in the FEIS, the CINMS regulations provide a
definition of MPWC that is the same as that used by the NPS. This is
important so that the CINMS regulation is consistent with the NPS ban
on MPWC use in effect in the Channel Islands.
206. Comment: The process leading to the creation of the MPWC
prohibition did not allow for public input, and/or NOAA should consult
with more state officials, emissions experts, manufacturers, and actual
users, before committing to such a ban.
Response: Per requirements of the National Marine Sanctuaries Act,
the National Environmental Policy Act, and the Administrative Procedure
Act, NOAA has followed federal requirements for notifying, and
soliciting input from, the public, along with relevant state and
federal agencies about the MPWC prohibition and all other actions that
are part of the CINMS management plan review. Public input on the
management plan has been extensive through the Sanctuary Advisory
Council, public hearings, and the public comment period.
207. Comment: MPWC owners are cautious, use good judgment, and are
considerate of the environment, and/or the demographics of MPWC owners
have shifted to ``a little older, more affluent and more responsible
Response: Despite the changes in MPWC user demographics described
by the commenters, NOAA believes that the prohibition will assist CINMS
in achieving its primary mandate of resource protection. Furthermore,
the use of MPWC within one nmi of the Channel Islands has been
prohibited by the NPS since 2000.
208. Comment: The plan does not mention that as of 2004 the
California Air Resource Board (CARB) has prohibited the sale of two-
stroke marine engines. There are no two-stroke engines being sold of
any kind for marine use.
Response: NOAA is not aware of any CARB regulation banning the sale
of two-stroke engines. CARB did restrict the type of two-stroke engine
to only direct injection as of 2001. In addition there are many pre-
2001 two-stroke powered MPWC in operation and there are no prohibitions
on the use, replacement, or resale of the older carbureted or non-
direct injected two-stroke engines in these craft.
209. Comment: NOAA should explain why it is prohibiting Personal
Watercraft, when the agency seems to realize the benefits of these type
of boats for emergency response and law enforcement.
Response: NOAA notes a distinction between recreational use and
emergency response/enforcement. There is a tradeoff between potential
environmental impacts and the benefit of emergency response and
enforcement. The prohibition on MPWC use does not apply to (1) an
activity necessary to respond to an emergency threatening life,
property, or the environment; and (2) an activity necessary for valid
law enforcement purposes in the Sanctuary. For a response to commenters
who indicated that they are opposed to the Sanctuary's MPWC regulation,
see the response to comment 197.
210. Comment: NOAA should have reasonable boating regulations such
as the generally applicable access restrictions, closures and boating
rules set forth in existing Sanctuary regulations, and/or regulations
that require an age limit, educational program, and a licensing system
for MPWC use; or NOAA should establish
best management practices to resolve problems with MPWC use.
Response: Given that the use of MPWC within one nmi of the Channel
Islands has been prohibited by the NPS since 2000, NOAA is not
considering the ideas suggested as an alternative to the prohibition on
MPWC use in this zone. Regarding rider age limits and licensing
systems, these are boating safety and registration issues more
appropriately managed by State and Federal boat licensing agencies.
211. Comment: Based on the definition of personal watercraft in the
DEIS, it appears that the intent of the MPWC prohibition is not to
regulate fishing. If this is correct, the prohibition does not directly
affect fishing, fishing vessels, fish stocks, or fish habitat.
Response: While the intent of this regulation is not to regulate
fishing per se, it does prohibit the use of MPWC within one nmi of the
islands, even if the MPWC were being used to conduct an otherwise
lawful fishing activity.
212. Comment: NOAA should implement boater education programs to
reduce MPWC accidents and injuries, which would render the ban on MPWC
Response: Education and safety regulations can increase MPWC
safety. However, the intent of the one nmi prohibition is primarily to
protect wildlife, and the existing NPS ban eliminates the utility of an
educational program for MPWC operators in that zone. NOAA would
consider partnering with another agency or organization for the
purposes of developing educational programs to address MPWC use from
one nmi to six nmi offshore in the sanctuary, should circumstances
warrant it. NOAA welcomes input from the California Department of
Boating and Waterways and the California Boating and Waterways
Commission on education and outreach for MPWC users and all boaters
regarding the Sanctuary.
213. Comment: NOAA should explain how the one mile limit for the
MPWC prohibition was determined.
Response: NOAA believes that the one nmi limit is reasonable for
preventing wildlife disturbance from MPWC in the sensitive nearshore
area of the Sanctuary, especially considering the number of emergent
rocks within the one nmi offshore zone of the islands. Additionally,
this zone directly overlays the existing National Park Service ban on
MPWC within Channel Islands National Park, facilitating cooperative
enforcement of both the NPS and NOAA MPWC regulations.
214. Comment: The California Department of Boating and Waterways
(CDBW) commented that they would be happy to help CINMS staff in
delivering a message to the boaters that they come into contact with.
Response: NOAA looks forward to working with the CDBW on boater and
MPWC education and outreach and has benefitted from partnering with the
CDBW and others involved in the California Ocean Communicators Alliance
``Thank You Ocean'' campaign. The CDBW featured this campaign in an
article in its April 2007 Changing Tide newsletter, including campaign
advertisements and logos on the front and back cover of the issue. In
recognition that 8,200 copies of this newsletter are circulated to
marinas, yacht clubs, boat supply stores, boat repair facilities, other
state agencies, clean boating network members, boat shows and events,
NOAA greatly appreciates opportunities to partner with CDBW to conduct
outreach to boaters. NOAA also appreciates the CDBW assistance with
distribution of a CINMS boater safety brochure to registered boat
owners throughout Ventura County, and looks forward to partnering on
future boater outreach.
215. Comment: NOAA should keep the waterways open for responsible
Response: This action keeps the Sanctuary open for all public uses
compatible with the CINMS's primary objective of resource protection,
and not prohibited pursuant to other authorities.
MPWC--Other Agencies Regulate Boating
216. Comment: The CDBW was not consulted or asked to participate
during the planning process. NOAA should have also consulted with the
U.S. Coast Guard because they have the authority to promulgate
regulations regarding recreational boats in federal waters.
Response: NOAA provided scoping and noticing of this action in
accordance with NEPA, APA, and NMSA requirements. The U.S. Coast Guard
and the California Resources Agency (the parent agency of the CDBW)
each hold seats on the CINMS Sanctuary Advisory Council, and as such
have been aware of and involved in this management plan development
since its inception. In addition, prior to release of the DMP and DEIS,
the NMSP's West Coast Region informed the California Boating and
Waterways Commission of plans to consider an MPWC regulation at CINMS.
NOAA remains open to working with the CDBW in the Channel Islands on
topics of mutual interest in the future. Regarding consultation with
the U.S. Coast Guard and enforcement, in addition to its involvement
throughout the management plan review as an agency member of the
Advisory Council, the USCG is also a Sanctuary cooperative enforcement
partner. NOAA believes that the USCG is well suited to help enforce
CINMS regulations, including the prohibition on MPWC, and as such CINMS
coordinates enforcement with the USCG and other enforcement agencies.
217. Comment: The California Department of Boating and Waterways
and the U.S. Coast Guard have the authority to regulate boating. Any
federal regulations related to recreational boating (i.e., MPWC use)
proposed in the management plan should be adopted, if needed, by the
U.S. Coast Guard, the federal agency with historical boating expertise
and appropriate enforcement responsibilities.
Response: Although boating regulations could be developed by
another agency, such as the USCG, NOAA thinks that in this case using
Sanctuary authority would be the most efficient and logical means of
achieving enhanced Sanctuary protection. Additionally, this regulation
is an overlay of an existing National Park Service ban. NOAA works
cooperatively with the NPS, USCG, and CDFG to enforce Sanctuary
regulations, including regulations pertaining to recreational boaters
that have been in effect for over twenty-five years. NOAA is interested
in exploring opportunities for CDBW to assist with marine enforcement
within the state waters portion of the Sanctuary.
218. Comment: The maximum penalty of $130,000 for violation of the
Sanctuary's MPWC prohibition is too high. Given this high fine, NOAA
should mark the one nmi boundary with buoys and signs about the
Response: The penalty of $130,000 is a maximum penalty for any
violation as decided upon by Congress during the authorization and
subsequent reauthorizations of the National Marine Sanctuaries Act. The
actual penalties levied for NMSA violations vary in proportion to the
severity of the incident and other case-specific factors. NOAA's Office
of General Counsel for Enforcement and Litigation establishes a penalty
schedule that outlines recommended penalties for violations under the
NMSA. This penalty schedule provides notice to the public and provides
guidance to the prosecutors as to a general range of penalties for
specific violations. The penalty schedule reflects sanctions that NOAA
believes will encourage compliance and
deter violations; however, in every case, NOAA retains the ability to
assess a penalty up to the statutory maximum of $130,000. The NMSA
penalty schedule is publicly available and can be accessed through this
It is the responsibility of Sanctuary users to know where they are
within the Sanctuary, and what laws and regulations apply in a given
area. CINMS education and outreach materials are designed to help users
understand regulations. Physical signs can enhance awareness and
compliance, but it is neither logistically nor financially feasible for
NOAA to install a system of signs along the one nmi boundary warning of
the MPWC ban.
MPWC--Relation to Other Boats
219. Comment: The MPWC prohibition unfairly singles out and/or
discriminates against MPWC, especially in terms of described
environmental impacts, and/or access rights or regulations.
Response: NOAA has already established a precedent for regulating
some users, such as large vessels and aircraft, differently than others
in the one nmi offshore zone due to concerns about their potential
impacts. NOAA acknowledges that MPWC are not alone in their potential
for wildlife disturbance. However, scientific research and studies
across the United States (e.g. California, New Jersey, Florida) have
produced strong evidence that MPWC present a significant and unique
disturbance to marine mammals and birds different from other
watercraft. Though some other studies have found few differences
between MPWC and small motor-powered boats, they have not presented
evidence to invalidate the studies detecting significant impacts. In
1994, NOAA commissioned a review of recreational boating activity in
the Monterey Bay NMS. The review provided statistics on MPWC use and
operating patterns in the Sanctuary at the time and identified issues
of debate from the research community regarding MPWC impacts on
wildlife, but it made no formal conclusion or recommendation. At this
time, NOAA has determined that the unique properties and operating
characteristics of MPWC (which allow for high speed, repetitive
nearshore operations, and are further described in the FEIS) make them
prone to present a significantly higher risk of wildlife disturbance
than other vessel types. As such, NOAA thinks that MPWC are
incompatible with resource protection within the one nmi offshore zone
of the Sanctuary. Operation of MPWC in the CINMS is still allowed
outside of the one nmi offshore area.
Regarding comments asserting that MPWC should be regulated in the
same manner as other boats, NOAA believes that for other types of
boaters, and for MPWC operating beyond the one nmi offshore zone,
enforcement of the restrictions presented in Prohibition 9 (Taking a
Marine Mammal, Sea Turtle or Seabird) provide for sufficient resource
protection at this time. However, NOAA could in the future propose
additional restrictions on other Sanctuary users, with public input and
review, should protecting Sanctuary resources warrant such action. With
regard to MPWC rights to access, please note that the MPWC regulation
overlays an existing NPS ban on MPWC use within one nmi of the islands
that has been in place since 2000. Neither the NPS nor CINMS
regulations ban MPWCs for a six mile area surrounding the park. Rather,
both ban MPWC use only in the one nmi offshore zone. Concerning
emissions and water quality issues among MPWC and other boats, NOAA's
objection to the operation of MPWC within one mile of the islands is
due more to their potential for wildlife disturbance than concerns
about emissions (see also the response to comment 201). In terms of
whether or not there are differences in engine types between MPWC and
other craft, the justification for the prohibition is not related to
the engine type, but rather to the craft's unique capabilities and use
For information about NOAA's use of the best available information
as it relates to the rationale for this prohibition, see response to
220. Comment: NOAA should prohibit the use of MPWC within one nmi
from the islands, as proposed in the preferred alternative.
Response: NOAA is implementing the preferred alternative MPWC
Nearshore Vessel Approach
221. Comment: NOAA should adopt the nearshore vessel approach
prohibition in Alternative 1 in order to: Reduce the risk of grounding
and collision accidents; to provide additional protection for sensitive
near-shore areas; exclude a greater number of potentially harmful large
vessels (those 150 GRT or more) than the Proposed Action (those 300 GRT
or more); and reduce the likelihood of discharges and other impacts
from relatively large vessels, including cruise ships. Additionally,
NOAA should provide an exception allowing large vessels to operate in
the shipping lanes.
Response: Like Alternative 1, the Proposed Action directly
addresses the NOAA's concern that, with limited exceptions, large
vessels should not approach and put at risk sensitive nearshore areas
of the Sanctuary. NOAA is not aware of more than a few vessels between
150 to 299 GRT that occasionally visit the Sanctuary area within one
nmi of the Islands. Using Automated Identification System (AIS) data,
which will soon be available for the entire Sanctuary, NOAA plans to
enhance vessel traffic monitoring in the nearshore area. If the number
of vessels between 150 to 299 GRT increases significantly, and/or the
incident of vessel accidents increases, NOAA can revisit this
regulatory issue. Cruise ships are typically much larger than 300 GRT,
and industry trends show increasing vessel sizes. The shipping lanes do
not come within one nmi of Island shores, and thus an exception
allowing large vessels to operate in the shipping lanes is not
222. Comment: NOAA should remove the fishing vessel exception to
the nearshore vessel approach regulation under both the Proposed Action
and Alternative 1. Additionally, NOAA should assess the costs and
benefits of removing the exception for fishing vessels of these sizes,
including the regulatory burden of gaining a permit for such activity,
and the rationale for the exception.
Response: NOAA is not removing the nearshore vessel approach
regulation's exception for fishing vessels at this time. NOAA is not
aware of fishing vessels greater than 150 GRT using Sanctuary waters,
including within one nmi of the Islands, nor aware of any emerging
fisheries trends suggesting that vessels of this size are planning to
use Sanctuary waters. Using AIS data, which will soon be available for
the entire Sanctuary, NOAA will enhance vessel monitoring in the
nearshore area. NOAA also monitors vessel use of the Sanctuary via
aerial surveys. Should fishing vessels 150 GRT begin to use the
Sanctuary, NOAA can revisit the associated risks and determine how to
NOAA does not believe that the requirements for obtaining a permit
are burdensome. Sanctuary staff regularly process a variety of permits
and work to maintain an efficient and streamlined process. Furthermore,
few vessels that routinely visit the Channel Islands nearshore area are
300 GRT or more.
223. Comment: Support is expressed for the Proposed Action
modification of the nearshore vessel approach regulation to prevent
large (300 GRT or more) non-fishing vessels from traveling within one
nmi of island shores in the Sanctuary.
Response: Comment noted.
224. Comment: NOAA should not limit the large vessel nearshore
approach prohibition to one nautical mile from island shores, but
instead should expand it to the Sanctuary's outer boundary.
Response: The International Maritime Organization has already
designated the majority of the Sanctuary, excluding the portion that
overlaps the TSS, as an Area To Be Avoided (ATBA). NOAA seldom observes
large vessels within the ATBA, and as such NOAA has not deemed it
necessary at this time to prohibit large vessel use beyond one nmi from
225. Comment: NOAA should completely ban cruise ships inside the
Sanctuary's six nautical mile boundary because of poor dumping
Response: CINMS regulations prohibit cruise ships 300 GRT or more
(cruise ships are typically much larger than 300 GRT) from approaching
within one nmi of the Islands, and prohibit them from discharging
sewage and graywater in the Sanctuary. Based upon the best available
information, NOAA has determined that it is not necessary to ban cruise
ships within the entire Sanctuary at this time.
Oil and Gas
226. Comment: NOAA should continue to prohibit any oil and gas
development within the Sanctuary given the short- and long-term human
and environmental impacts from oil spills, and the relatively high
probability that they will occur. NOAA should also take necessary
measures to protect Sanctuary resources from oil development in the
Response: NOAA is maintaining the prohibition on exploring for,
developing, or producing hydrocarbons within the Sanctuary. NOAA also
comments on oil and gas related projects in the region that have the
potential to affect Sanctuary resources.
227. Comment: Commenter supports the Proposed Action Alternative's
prohibition 1 on oil and gas that maintains current prohibitions on oil
and gas development while removing outdated exemptions.
Response: Comment noted.
228. Comment: The Conservation Science Action Plan's performance
measures should include not only funding levels and quantitative
measures of monitoring and research efforts, but metrics of a given
activity's completeness, efficiency and quality.
Response: The FMP's Performance Evaluation Action Plan contains
performance targets for all eight of the Conservation Science Action
Plan's strategies, all of which address at least one of the criteria
identified by the commenter (completeness, efficiency, and quality). As
CINMS staff implement the management plan, these targets may be updated
or modified to more clearly articulate these criteria, and to more
closely align the specific CINMS performance targets with those
identified for the national program (there are currently 21 program
performance measures for the NMSP).
229. Comment: Requirements for specific quantitative performance
measures may impede CINMS's ability to implement programmatic and
regulatory improvements that may have more qualitative benefits.
Response: CINMS staff have developed both quantitative and
qualitative performance targets for the strategies in each of the FMP's
action plans. Quantitative performance targets are typically used to
track outputs (or products), but may also be used to identify certain
qualitative achievements (such as the percentage of increased knowledge
within a particular user group). Performance targets are developed in
response to, rather than as an impetus for, identification of a
management activity. In other words, sanctuary-specific performance
targets do not ``drive'' the development of management activities;
rather, they are the means by which a sanctuary tracks it progress
towards the achievement of sanctuary-specific and NMSP goals and
objectives. As such, NOAA does not believe that quantitative
performance targets will impede development of any regulatory or non-
regulatory management actions that may have qualitative benefits for
230. Comment: The management plan should include a baseline water
quality characterization, and its Performance Evaluation Action Plan
should include a performance metric that actually measures whether
Sanctuary water quality is being improved via physical measurements of
pollution levels and environmental health.
Response: Strategy WQ.2 includes an activity to complete a CINMS
water quality characterization report. Regarding water quality
performance metrics, since revision of the CINMS management plan began,
the NMSP has developed a set of program level performance measures that
set management targets for the sanctuary system. One of these targets
is the ``Number of sites in which water quality, based on long-term
monitoring data, is being maintained or improved.'' Criteria for
measuring this target have been developed through the NMSP's
conservation science program, and a tracking plan for how each
sanctuary will meet these criteria has been implemented across the
system. CINMS staff are currently working to provide Sanctuary-specific
data on these criteria, which will eventually be included in a system-
wide report on the status of NMSP performance targets.
231. Comment: Sanctuary goals are lacking an MOU for procedural
review of the protection at CINMS that defines data gaps, survey design
and data streams connected to budgets that facilitate management
decisions. CINMS has no functional management culture that can assess
the status of the resources to use as a foundation for working with the
fishing community. It is not bound by any peer review protocol or data
management performance criteria.
Response: The FMP's Conservation Science Action Plan identifies the
myriad ways in which NOAA and its partners have collected, and continue
to collect, assess, and apply, information on the status of CINMS
resources. Although no general MOU exists between CINMS and its
partners on research in the Sanctuary, there are a variety of MOUs
planned or in place for specific research and management activities
(such as implementation of the marine reserves). In addition, MOUs are
often not needed for collaboration on management and monitoring of
marine resources with many agencies and organizations--for example,
CINMS collaborates extensively with NMFS, and existing statutes allow
for extensive coordination with the Pacific Fishery Management Council.
Identifying data gaps and survey design are an inherent part of nearly
all CINMS research initiatives and decisions to implement any research
project are always linked to budgetary considerations. With regard to
performance criteria, see the response to comment 230 for an example of
how the NMSP is moving forward on this issue.
232. Comment: NOAA has recently dramatically improved the
scientific research permitting process. The process is straightforward
and reasonably quick, much improved over the past.
Response: Comment noted.
233. Comment: NOAA should provide transparency for the CINMS permit
process, including provisions for public notice, review and comment on
issuance and monitoring of Sanctuary permits.
Response: NOAA does not currently envision a public notification
and review provision for all CINMS permits. Existing NMSP regulations
(15 CFR 922.48) identify the permit issuance criteria for all national
marine sanctuaries, which provide a rigorous set of parameters under
which NOAA can permit an activity that is otherwise prohibited. It
should be noted that when receiving a permit application, the CINMS
Superintendent may request additional information from the applicant
and, if appropriate, may hold a public hearing to obtain more
information. If a permit holder acts in violation of the terms and
conditions of any permit, NOAA may amend, suspend, or revoke the
permit. Projects that would result in the preparation of an
environmental impact statement under the National Environmental Policy
Act would be subject to public review and comment.
234. Comment: If a permit applicant will be using vessels for hire
or soliciting related assistance for his/her proposed project, NOAA
should require the applicants to use appropriately licensed vessels and
Response: Individuals or entities conducting activities under a
CINMS permit must still comply with all federal, state and local laws
and regulations that are applicable to that activity.
235. Comment: In the FMP NOAA should provide an explanation or
examples of what types of research would and would not require a
Response: NOAA has updated FMP Strategy OP.2 (Permitting and
Activity Tracking) with examples of the types of research and other
activities that do and do not require a Sanctuary permit.
Research and Monitoring
236. Comment: The Channel Islands National Marine Sanctuary has an
admirable scientific research program, primarily in partnership with
colleges and universities in the area. This scientific research should
be continued and expanded to increase understanding of the unique
ecosystem of the Santa Barbara Channel and Channel Islands.
Response: CINMS research staff continue to look for opportunities
to build partnerships and collaborate on research. Through research
outreach efforts, such as presentations at conferences and workshops,
publication of scientific papers, and distribution of reports, staff
inform the research community of our efforts and needs. CINMS staff
also solicit research projects in the Sanctuary through our request-
for-vessel process while continuing to identify funding opportunities
through grants and partnerships.
237. Comment: The management plan properly identifies the
importance of data management and dissemination to the overall
effectiveness of the Conservation Science Action Plan. It also
addresses the highly collaborative and partnership-based nature of the
biological research process and the need for extensive collaboration
with partners at other agencies and entities.
Response: Comment noted.
238. Comment: NOAA should find additional funding for monitoring
programs so that the scientific community does not lose its integrity
by not being able to fulfill monitoring requirements. The funding
amount for Conservation Science Action Plan should be increased at
least two-fold, to match the level of funding dedicated to Education
and Outreach. NOAA should also fund structural support for the
cooperative research program.
Response: NOAA recognizes that resource limitations as well as the
necessary program and partner developments may limit implementation of
all of the activities in the management plan, including the
Conservation Science Action Plan. NOAA will continue to work with the
Department of Commerce, Office of Management and Budget, and Congress
in developing supporting justifications when preparing budget
submissions. Sanctuary staff will continue to look for opportunities
for funding through other federal programs, private grants, and
partnerships with agencies, universities, and private and non-profit
organizations. NOAA supports the cooperative research program and will
fund it as the CINMS budget allows, including through the funding
opportunities listed above. Estimated costs shown for the Conservation
Science Action Plan and the Public Awareness and Understanding Action
Plan are not directly comparable. The Conservation Science Action Plan
budget does not include contributions from partners and collaborators,
nor does it include the large amount of funding to staff and operate
vessels, which is estimated in the FMP's Operations Action Plan. In
addition to these contributions, NOAA continues to seek additional
funding opportunities as listed above. NOAA has also revised some of
the cost estimates for Conservation Science Action Plan strategies.
239. Comment: NOAA should prioritize science relevant to management
and apply it to existing and emerging resource protection issues. The
Conservation Science Action Plan should include an explicit goal for
the application of scientific research to the understanding and
mitigation of identified or emerging threats. NOAA should consider how
it can best orient its scientific research programs to better translate
research results to management decisions.
Response: NOAA recognizes that sanctuaries should ensure that their
research and monitoring programs are effectively prioritized to produce
scientific information that can be applied to the understanding,
mitigation, and management of identified or emerging threats. Through
the NMSP's System-Wide Monitoring Program (SWiM) reports, CINMS staff
will provide status updates on the condition of Sanctuary resources to
local, regional, and national policy makers. The NMSP holds an annual
research coordinators' meeting at which research staff discuss research
issues and needs across the program. The ONMS West Coast Region
coordinates research and monitoring efforts within the region to
address regional management and resource protection issues.
The purpose of the research department at CINMS is to support
management decision making with conservation science. NOAA has
emphasized this point in the FMP's revised Overview to the Conservation
Science Action Plan. CINMS research staff regularly collaborate with
partners, including other federal and state agencies, universities,
private institutions, and non-profit agencies. The Research Activities
Panel, a working group of the Sanctuary Advisory Council, provides
oversight to the monitoring programs in the Sanctuary. The status of
monitoring programs is reported to regional and national offices
through internal documents.
240. Comment: Overall research/science coordination and data
management are important, necessary, and the greatest conservation
science needs within the Sanctuary.
Response: CINMS research staff coordinate conservation science by
being in close contact with researchers, tracking and requiring updates
on their research activities, and working with joint-jurisdiction
agencies. Staff also develop research partnerships to address research
gaps, and receive input from the RAP on research and monitoring
CINMS staff continue to strive towards better research coordination
and comprehensive data management as funding and staffing allows.
241. Comment: Sanctuary Aerial Monitoring Spatial Analysis Program
(SAMSAP) graphical data must be included in the online database
architecture proposed in DMP Strategy CS.2, and become publicly
Response: SAMSAP data have been, and continue to be, analyzed and
used in a wide variety of spatial and statistical projects ranging from
marine zoning to emergency response applications. The majority of
SAMSAP data are already in a format easily importable into a variety of
common database formats. As noted in the revised Strategy CS.2, rather
than developing a new online database, CINMS will work with regional
partners already running established web-based data warehouses to
identify the most appropriate data warehouses to best disseminate
particular data types. The end result will make SAMSAP data available
and integrated with the publicly-accessible Sanctuary Integrated
Monitoring Network (SIMoN, http://www.sanctuarysimon.org) that will be
expanded to CINMS.
242. Comment: Many existing programs (e.g., SAMSAP) could be used
to meet a greater variety of research needs. The CINMS Research
Coordinator should take an active role in expanding or redirecting
internal CINMS research activity and make strategic decisions about the
allocation of Sanctuary support among existing external research
Response: CINMS research staff use the Management Plan and other
annual research prioritization documents to set priorities and direct
and fund CINMS research activities. In recent years SAMSAP data have
been analyzed and are now being used, among other things, in
socioeconomic impact studies related to marine zoning.
243. Comment: The Conservation Science Action Plan's Comprehensive
Data Management strategy does not include enough analysis and synthesis
to help formulate a general research plan. Data management must be more
than a simple means to provide information to the public and others; it
should reveal important gaps and trends, and can be used strategically
to guide future research and to answer specific questions mandated by
Response: Data management can be used strategically to guide future
research and to answer specific questions. The FMP's comprehensive data
management strategy is focused on integrating CINMS data into existing
regional and national data management programs to facilitate enhanced
conservation science-based decision-making. While this strategy focuses
on data management, inherent in the Resource Protection Action Plan is
a need to analyze data. Complementing the data management strategy, the
FMP's Resource Protection Action Plan identifies a variety of current
and emerging resource protection issues and it is expected that for
each issue a number of science-based questions may emerge. Answers to
these questions will guide and drive data analysis activities and
research planning in a manner consistent with the comment. Thus, data
analysis and synthesis occur as part of management plan implementation,
and are also manifested in Sanctuary annual operating plans, as well as
through annual research vessel allocation decisions.
244. Comment: Strategy CS.2 (Comprehensive Data Management) should
be elevated to a high level of planned implementation as shown in the
management plan's Appendix A1. If CINMS could serve as a clearinghouse
for data, such as through the Sanctuary Integrated Monitoring Network
(SIMoN), interested researchers would be able to assist the Sanctuary
even in the absence of a comprehensive research and monitoring plan.
Response: NOAA has elevated the planned implementation level of
activities within Strategy CS.2 to high. See revised Strategy CS.2 for
updated information on how CINMS staff plans to use existing data
management tools, like SIMoN.
245. Comment: Support expressed for the Collaborative Marine
Research Program as a highly innovative effort to bring potential
resources, knowledge and cost savings to bear on the process of
biological marine research and monitoring. The Collaborative Marine
Research Program is also: Uniquely capable of monitoring species not
easily detected by traditional monitoring techniques; an excellent
example of applying limited Sanctuary resources to known gaps and
limitations that should be routinely assessed; an important outreach
and research program.
Response: The Collaborative Marine Research Project is a valuable
program. NOAA will continue to support this program as funding allows.
For additional information about funding see the response to comment
246. Comment: Support expressed for development of collaborative
research programs coupled with socioeconomic monitoring programs, and
as part of an integrated research plan, rather than developing in
Response: Collaborative marine research projects need to be
integrated into the overall research and monitoring plan. As noted in
the background of Strategy CS.4, efforts will be made to ensure that
collaborative marine research does not duplicate existing research
efforts, but rather complements them by filling research gaps and
building new knowledge to assist resource managers. NOAA believes that
the Sanctuary Advisory Council's Research Activities Panel (RAP) is a
key player in providing Sanctuary management with advice to help ensure
that research programs are integrated.
247. Comment: NOAA should donate R/V Shearwater vessel time to
support the National Audubon Society's Christmas Bird Count.
Response: Written proposals must be submitted in order for NOAA to
consider any vessel undertaking. NOAA will assign priority to those
proposals that take place within Sanctuary boundaries and address
various management plan priorities. See the response to comment 249 for
additional information about the vessel allocation process.
248. Comment: The support of the R/V Shearwater to the local
research community has been invaluable and CINMS should continue this
Response: The R/V Shearwater will continue to support those efforts
that address various FMP action plan strategies, to the greatest extent
allowable given financial and logistical constraints inherent to field
249. Comment: Regarding the management plan's Operations Action
Plan, the process by which CINMS research vessel time is allocated
remains obscure, and research operations would benefit from an open and
transparent set of rules by which allocation decisions are reached.
Response: NOAA has revised text in the FMP's Operations Action
Plan, Strategy OP.4 to include clarification of the annual sea-day
allocation and scheduling processes that occur each autumn.
250. Comment: NOAA should include a plan for deepwater site
characterization and deepwater MPA monitoring in Strategy CS.3--Support
Existing Site Characterization and Monitoring Programs.
Response: NOAA has updated text in Strategy CS. 3 of the FMP to
include an activity on deep water monitoring for the CINMS MPA network.
251. Comment: SAMSAP surveys should be expanded (provided increased
funding). There is an unmet
need to quantify fishing pressure in and around Sanctuary waters.
Additionally, SAMSAP surveys would benefit from review by statisticians
to optimize their design and usefulness.
Response: NOAA is actively working to increase SAMSAP funding at
CINMS. Reduced availability of NOAA aircraft requires CINMS staff to
seek alternative aircraft options, such as contract aircraft, which
cost much more to fund than NOAA aircraft, and partner agency aircraft.
CINMS has been working with socioeconomic statisticians and economists
since 2007 to analyze and improve SAMSAP survey methodology and
252. Comment: NOAA should continue supporting seafloor mapping
within the Sanctuary, which has uses for education and outreach,
research and monitoring, and historical resources (finding shipwrecks).
Response: Comment noted.
253. Comment: Existing ongoing research activities in the CINMS are
described in varying amounts of detail in the Conservation Science
Action Plan; many are mentioned in passing or not mentioned at all.
Response: NOAA describes projects in varying amounts of detail and
has elected not to describe every research project in great detail.
There are some small, short-term projects (for example, graduate
student work, or projects that may last three years or less), that
while important, NOAA concluded did not warrant detailed descriptions
in the plan. Programs that fall within Sanctuary priorities, but are
not described, are not necessarily precluded from Sanctuary support.
Likewise, the Sanctuary remains open to supporting new projects that
254. Comment: The management plan's Conservation Science Action
Plan information on marine reserves monitoring does not mention the
large acoustic receiver array maintained by the Pfleger Institute of
Environmental Research (PIER). PIER's monitoring of fish movement
relative to the reserve boundaries is one of very few projects that are
specifically designed to investigate questions of reserve efficacy.
Response: NOAA acknowledges important contributions the PIER
project has brought to marine reserves research. Although this project
ended in 2006, Sanctuary staff look forward to the analysis of existing
data and are interested in seeing this project or similar acoustic
tagging projects return, should funding allow. As mentioned in the
Conservation Science Action Plan at CS.6, specific marine reserves
biological monitoring programs are described in the Channel Islands
Marine Protected Area Monitoring Plan, a multi-agency document
developed by the California Department of Fish and Game (California
Resources Agency, CDFG 2004).
255. Comment: The CINMS Conservation Science Action Plan should do
more than simply track external programs. Importantly, as programs grow
and research activity intensifies, a policy of generally supporting all
existing programs will not suffice.
Response: The Conservation Science Action Plan is not limited to
tracking external programs. The Sanctuary is directly involved in a
number of research programs (e.g., SAMSAP, and seabird monitoring),
explained in the Conservation Science Action Plan, and for which the
Sanctuary provides support in the form of staff, vessel time, and/or
funding. NOAA does not have a policy of ``supporting all existing
programs'' at the CINMS. There are limits to the amount of support the
Sanctuary can provide, and NOAA uses a strategic approach to planning
Sanctuary research and monitoring, allocating resources in accordance
with Sanctuary research priorities that are determined on an annual
256. Comment: The Conservation Science Action Plan's performance
evaluation criteria are not satisfactory, including the performance
targets for the marine reserves monitoring strategy (CS.6). By
specifying very narrow performance targets without an integrated
research plan, CINMS staff effort is focused too quickly on small
steps. NOAA should identify: (1) What the Sanctuary specifically wants
to monitor, (2) what the targets for management are, and (3) whether
those targets are being met.
Response: NOAA acknowledges that the Conservation Science Action
Plan's performance evaluation criteria, while tangible and able to be
quantifiably tracked, are not alone fully informative for overall
management effectiveness. NOAA understands that a variety of assessment
methods will be needed to ensure that the Conservation Science Action
Plan is effective. Additional specific performance measures have been
developed and are listed in the Description of the Issues section of
the Performance Evaluation Action Plan within the FMP. These
performance measures establish targets for understanding the status and
trends of Sanctuary water quality, habitats and living marine
resources, and will help guide prioritization and implementation of
strategies and activities within the Conservation Science Action Plan.
NOAA will work with the Research Activities Panel and other partners to
refine assessment methods during management plan implementation, and
will refine these methods over time.
257. Comment: CINMS staff should partner with ongoing research and
coordination efforts via California Sea Grant, the Southern California
Coastal Ocean Observing System (SCCOOS), and the California North Coast
Ocean Observing System (CNCOOS).
Response: The NMSP's West Coast Region has been the lead on
coordinating ocean observing systems within west coast national marine
sanctuaries. With its support, CINMS staff continue to work with the
Partnership for Interdisciplinary Studies of Coastal Oceans (PISCO) to
help fund their oceanographic buoys.
258. Comment: NOAA should initiate an ecosystem based co-management
seat on the research activities panel.
Response: As is the case with all Sanctuary Advisory Council
working groups, the Research Activities Panel decides upon its
membership, and does not at this time have seats dedicated to specific
ideologies or user groups. NOAA recommends that the commenter make this
general suggestion directly to the Research Activities Panel.
259. Comment: Success of the Comprehensive Data Management strategy
will rely heavily on identifying a highly capable CINMS Research
Response: In 2007, NOAA hired Dr. Steve Katz as the Sanctuary's new
260. Comment: NOAA should initiate research on the impacts of
increasing CO2 and ocean acidification on Sanctuary resources.
Response: CINMS staff and the Sanctuary Advisory Council have begun
to examine increasing CO2, ocean acidification, and related
climate change issues. For example, CINMS staff and the Sanctuary
Advisory Council are collaborating on a carbon budget and greening
project that aims to raise awareness and understanding of the
Sanctuary's carbon cycle and carbon inputs from human activity in the
Sanctuary and surrounding environment. The NMSP is working with the
NOAA Climate Office to pursue funding for detecting climate change
impacts in each national marine sanctuary, including the Channel
Islands. With regard to ocean acidification and its potential effects
on Sanctuary resources, the Advisory Council's Conservation and
Commercial Fishing working groups are collaborating on development of a
comprehensive report on ocean acidification, and related
recommendations for the Sanctuary and NMSP. (See also new information
added to the FMP's Resource Protection Action Plan). The results of
this work are anticipated in 2008, and will include review and comments
from the Advisory Council and its Research Activities Panel.
261. Comment: Commenter concurred with the comments offered by the
Research Activities Panel.
Response: Please refer to responses to the Research Activities
Panel's comments, listed in the table at the beginning of the FEIS
response-to-comments appendix under ``Warner, Robert.''
262. Comment: NOAA should develop a Resource Protection Action Plan
within the management plan, to incorporate but go beyond the Emerging
Issues Action Plan. A resource protection action plan should: link
resource protection issues with management responses; require funding
for staff time dedicated to issue-response measures; and articulate
that CINMS may play a leadership role in, rather than relying
excessively on other parties for, scientific and resource protection
efforts. Resource protection issues could include: LNG, aquaculture,
sea otter migration, artificial lighting (e.g. from squid boats), ship
strikes, introduced and invasive species, artificial reefs, plumes of
non-point source pollution from mainland rivers during storm events,
and atmospheric deposition of air pollutants into Sanctuary waters.
Response: NOAA has revised several strategies and background
information from the DMP to develop a new Resource Protection Action
Plan in the FMP. This action plan articulates how NOAA addresses
existing CINMS resource protection issues, as well as how emerging
issues will be addressed. Each of the issues suggested as resource
protection issues are noted in either the FMP's Resource Protection or
Water Quality action plans. NOAA has explained the various steps it may
take in responding to Sanctuary resource protection issues within
Strategy RP.2 (``Responding to Identified Issues''). Due to the
complexity and evolving nature of resource protection issues, NOAA
maintains that it would be inappropriate to link specific ``triggers''
with specific ``responses'' in advance. The CINMS Resource Protection
Coordinator and Sanctuary Advisory Council Coordinator are primarily
responsible for implementing the activities in this action plan (with
assistance from other staff). As permanent, full-time positions, each
is allocated specific funding. NOAA also leverages and maximizes
resources available through collaborative partnerships.
263. Comment: NOAA should take additional, or in some cases,
immediate management measures to address critical resource management
issues including: Underwater noise, aquaculture, artificial reefs, oil
and gas development, wildlife protection, fisheries management, global
warming and liquefied natural gas proposals. NOAA should establish a
specific process to address these CINMS issues as part of the
management plan review.
Response: The CINMS staff work closely with fishery management
agencies (NMFS and the California Department of Fish and Game) to
address Sanctuary concerns about fisheries impacts. The Sanctuary has
expanded its discussion of wildlife protection, oil and gas
development, and global warming in the FMP's Resource Protection Action
Plan, which also discusses aquaculture and artificial reefs. This
action plan describes a process for addressing resource protection
issues. Threats from oil and gas development, and activities to address
them, are discussed in the FMP's Emergency Response and Enforcement
Action Plan, as well as the Water Quality Action Plan (which outlines a
process for developing a comprehensive Water Quality Management Program
to address all Sanctuary water quality issues).
264. Comment: NOAA should consider placing permanent moorings at
popular island anchorages to prevent seafloor damage and protect
resources from boaters who possess poor anchoring skills.
Response: NOAA has supported and permitted the installation and
maintenance of permanent moorings at Santa Rosa, Santa Cruz and Anacapa
islands anchorages, which are used by the NPS and its concessionaire
vessels. The Sanctuary Advisory Council has discussed, and NOAA has
considered the possible need for and appropriateness of additional
moorings; however, at this time, NOAA has not reached a decision on
this issue as it is still gathering information. NOAA will continue
discussing this with the NPS, the Sanctuary Advisory Council and
others. NOAA will use the activities in the Resource Protection Action
Plan to track, assess, and determine how to address seafloor damage
Sanctuary Advisory Council Involvement
265. Comment: NOAA's federalism assessment statement within the
proposed rule improperly and inaccurately suggested that the current
Sanctuary Advisory Council supports the regulatory action.
Response: NOAA's intent was to provide information explaining that
NOAA has consulted with various entities, including the Sanctuary
Advisory Council, throughout the development of the regulatory action.
The Sanctuary Advisory Council was very closely involved from 1999
through 2002, at which point the proposed regulatory action entered
NOAA's internal review process. NOAA acknowledges that individuals who
joined the Advisory Council since 2002 were not as closely involved in
the development of the proposed regulatory action, and as such NOAA has
revised the statement accordingly.
266. Comment: The FMP and FEIS should discuss the connection
between water quality, sea otter health, nearshore marine ecosystem
health, and human health.
Response: Text in FEIS Appendix C now includes discussion about
research on the connection between these concerns.
267. Comment: In the FEIS, NOAA should acknowledge and support the
reality of future sea otter migration into Sanctuary habitats and not
identify this as a potential ``issue,'' ``conflict,'' or ``problem'' to
be dealt with. Also, it should be acknowledged in the FEIS that NOAA
has taken a position on the expanding range of the sea otter by
commenting in support of Alternative 3C in the U.S. Fish and Wildlife
Service (2006) DSEIS.
Response: NOAA does consider future sea otter migration into
Sanctuary habitats as an ``issue'' to be addressed. NOAA has not
equated issues with problems, but rather issues constitute the range of
topics that must be addressed by Sanctuary actions. Because sea otters
have not been present in significant numbers within the Sanctuary since
its designation, the expansion of their current range to include the
Sanctuary is a change in Sanctuary conditions. NOAA believes that this
change would warrant Sanctuary attention and may potentially warrant
future actions by Sanctuary staff (e.g., in the Resource Protection,
Research, and Education programs). NOAA has updated and augmented
information on this issue in the FMP's
Resource Protection Action Plan, Description of the Issues, under the
sub-header Termination of the Sea Otter Translocation Program. The NMSP
has taken a position on the expansion of the sea otter range in
southern California, and this is a matter of public record.
268. Comment: The documents should not use the phrase ``possible
future sea otter migration into Sanctuary habitats,'' since sea otters
are currently found within the Sanctuary, albeit not in large numbers
(both at San Nicolas Island and in other parts of the Sanctuary) or
necessarily as permanent residents. However, at some unknown time, sea
otters will probably reoccupy this historic habitat as permanent
Response: NOAA has updated the management plan text in the FMP's
Resource Protection Action Plan with information about the status of
sea otters in the Sanctuary and surrounding region, using information
from the USFWS 2005 Draft Supplemental Environmental Impact Statement
on translocation of southern sea otters. San Nicolas Island is one of
the Channel Islands, but is not part of the Sanctuary.
269. Comment: NOAA should consult with researchers at USGS (Brian
Hatfield) and FWS (Lilian Carswell) to revise the mention of ``rare
sightings'' of sea otters in the FEIS.
Response: NOAA has revised text in the FEIS based on the USFWS
(2005) Draft Supplemental Environmental Impact Statement, which
includes current information on the presence of sea otters in Sanctuary
waters and the study area. Based on USFWS (2005) information on the
abundance and distribution of California sea otters, sea otters are not
expected to have any effect on CINMS resources within 10 years, and
while there are rare sightings, they have yet to recolonize the CINMS.
Submerged Lands Disturbance
270. Comment: Commenters indicated their support for the proposed
modification of the prohibition on altering submerged lands of the
Sanctuary, which extends this protection of the seabed to the entire
Response: Comment noted.
271. Comment: If bottom trawling occurs in a sanctuary, it should
not be called a sanctuary.
Response: The purposes and policies of the NMSA provide for
facilitating public and private use of national marine sanctuaries
compatible with their primary goal of resource protection. Pursuant to
existing federal and state regulations, bottom trawling is highly
restricted in existing Sanctuary waters. It is prohibited inside one
nmi of the islands, throughout the network of ten marine reserves and
two conservation areas, and in several fisheries.
Take and Possession of Marine Mammals, Sea Turtles and Seabirds
272. Comment: Support expressed for prohibitions 9 and 10 (taking
and possessing, respectively, any marine mammal, sea turtle, or
seabird), but recommend that the regulation include or reference
language specifically stating that commercial fishing or certain
research activities which may involve the occasional take of these
species may lawfully operate as such under authorizations granted
pursuant to the Marine Mammal Protection Act, Endangered Species Act,
or Migratory Bird Treaty Act.
Response: NOAA has not added the specifically requested language to
these regulations. These prohibitions already include an exception for
authorizations granted by the Marine Mammal Protection Act, Endangered
Species Act, or Migratory Bird Treaty Act. As the DEIS (sections 2.1.10
and 2.1.11, 4.1.9 and 4.1.10) explained, the Sanctuary's proposed
regulation would not apply if an activity (including a federally or
state-approved fishery) that does or might cause take of marine
mammals, sea turtles or seabirds has been authorized to do so under the
MMPA, ESA, or MBTA or any implementing regulation promulgated under
these acts. NOAA believes it has clearly described and helped the
reader understand the nature, extent, applicability and intent of the
exception to prohibitions 9 and 10.
273. Comment: Sanctuary prohibitions 9 and 10 (taking and
possessing, respectively, any marine mammal, sea turtle, or seabird)
are duplicative of existing regulations, unnecessary, confusing as to
whether the intent is to track other laws, and could unnecessarily
prohibit certain fisheries in the Sanctuary. NOAA should add language
specifically acknowledging take exemptions found in other existing
authorities, including PFMC Fishery Management Plans.
Response: NOAA has carefully crafted these regulations to be
complementary in nature, with an area-specific focus on marine mammals,
sea turtles, and seabirds in the Sanctuary, and to provide a different
suite of penalties than available under other regulatory agencies'
authority. The regulations as written acknowledge take and possession
exemptions found in the Marine Mammal Protection Act (MMPA), Endangered
Species Act (ESA), Migratory Bird Treaty Act (MBTA) or any regulation
promulgated under the MMPA, ESA, or MBTA. NOAA understands that lawful
fishing operations that are likely to take a marine mammal, sea turtle,
or seabird are typically provided with exemptions for such take, and
therefore would be excepted from this Sanctuary regulation. NOAA
believes that the NMSA civil penalty schedule provides a valuable
deterrent to illegal take and possession of these species. In addition,
this regulation is consistent with those in place at the Monterey Bay,
Stellwagen Bank, Olympic Coast, and Florida Keys national marine
274. Comment: Concern expressed about the Sanctuary's prohibition
on take of marine mammals, sea turtles, and seabirds, as it might apply
to unintentional hooking of these animals while lawfully fishing. The
regulation would impede a fisherman's ability to release, remove,
unhook, or untangle any marine mammal that is inadvertently caught or
snagged during lawful fishing operations in the CINMS. NOAA should
revise the regulation to provide an exception for unintentional
hooking. NOAA should also consider if USFWS and CDFG regulations have
such an exception.
Response: NOAA understands that lawful fishing operations that are
likely to take a marine mammal, sea turtle, or seabird are typically
provided with exemptions for such take, and therefore are excepted from
275. Comment: NOAA should improve NMSP enforcement of the Marine
Mammal Protection Act with respect to emissions of underwater noise,
especially now that NOAA is proposing to add a CINMS prohibition on
marine mammal ``take'' within Sanctuary boundaries.
Response: The NMSP does not have enforcement authority with regard
to the Marine Mammal Protection Act. Should NOAA conclude that
unauthorized take has occurred within the Sanctuary, NOAA would ensure
that appropriate enforcement actions are taken by NOAA's Office for Law
Enforcement, the branch of NOAA charged with enforcing both the NMSA
276. Comment: Why is NOAA only now proposing a regulation to
prohibit take of a turtle or marine mammal, when that is one of the
basic protections that people expect?
Response: Take of these species has always been prohibited in the
Sanctuary, and in U.S. waters in general, under the protections
afforded by the Marine Mammal Protection Act, and the Endangered
Species Act. At this time NOAA has determined that
overlaying these regulations with Sanctuary regulations is warranted to
provide an added civil penalty deterrent against such already illegal
277. Comment: NOAA should explain why CINMS Designation Document
Article IV indicates that operating a vessel (i.e., watercraft of any
description) within the Sanctuary is subject to regulation, including
prohibition. At an Advisory Council meeting CINMS staff discussed
regulation of MPWCs, but this language makes it possible for the
Sanctuary to prohibit all vessels and NOAA should remove it.
Response: NOAA is not removing this language because since its
inception, CINMS has had general authority to regulate the navigation
of vessels. To date, NOAA has utilized this authority to regulate the
operation of cargo vessels and vessels servicing offshore installations
within one nmi of the Islands, and now, to regulate motorized personal
watercraft within that same area. While a given activity may be within
the Sanctuary's scope of regulations, any new Sanctuary action
(including regulation) that could significantly affect the environment
(including the human environment) would be subject to legal
requirements under the National Environmental Policy Act, and
Administrative Procedure Act, which ensure an open public review
process regardless of the scope of regulations within the CINMS terms
278. Comment: NOAA should prohibit cruise ships and industrial
activities such as LNG and associated traffic within the entire
Sanctuary to protect the Sanctuary from noise impacts and discharges.
Response: At this time, NOAA's primary concerns with cruise ships
pertain to nearshore approach and waste discharge/deposit in the
Sanctuary. The new CINMS regulations prohibit cruise ships 300 GRT or
more (cruise ships are typically much larger than 300 GRT, and industry
trends show increasing vessel sizes) from approaching within one nmi of
the Islands, and prohibit them from discharging sewage and graywater
anywhere in the Sanctuary. Based upon the best available information,
NOAA has determined that it is not necessary to ban cruise ships within
the entire Sanctuary at this time.
The Sanctuary is already protected from industrial activities
through regulations protecting the seabed and water quality, and a
prohibition on hydrocarbon activities. The regulation changes add a
prohibition on mineral activities. The International Maritime
Organization designated the majority of the Sanctuary, excluding the
portion that overlaps the Traffic Separation Scheme, as an Area To Be
Avoided (ATBA). NOAA seldom observes large vessels within the ATBA, and
as such has not deemed it necessary at this time to prohibit large
vessel use beyond one nmi from the Islands. NOAA has been actively
involved in commenting on proposed LNG projects adjacent to the
Sanctuary. Regarding discharges from industrial traffic, Sanctuary
regulations provide strong protections against pollution and
discharges. Regarding noise impacts, see the response to comment 9.
279. Comment: DMP Strategy CS.2--Comprehensive Data Management must
include data on commercial shipping dynamics via the Automated
Identification System, and CINMS staff must consider taking a
leadership role in bringing this system online.
Response: CINMS staff have taken a lead role in working with the
Navy, U.S. Coast Guard, and The Marine Exchange of Southern California
to install an AIS transceiver station on Santa Cruz Island or Anacapa
Island and integrate the data with an AIS transceiver station on San
Nicolas Island. Once completed, NOAA will work with partners to
facilitate the distribution and management of incoming AIS data. For
more information about CINMS AIS activities see FMP Strategy CS.8
(Automated Identification System (AIS) Vessel Tracking).
280. Comment: On SDEIS pages five and seven, 6,980 and 7,000 are
both used to present the same information about ship transits, but one
number should be used consistently.
Response: NOAA did not use two different numbers to present the
same information about ship transits. One number presents a general
statement about yearly ship transits through the Santa Barbara Channel
being ``nearly 7,000,'' while the other number presents a statistic
about Santa Barbara Channel ship transits in 2006 being ``an estimated
281. Comment: NOAA should incorporate the Santa Barbara Channel
into the Sanctuary and reroute commercial ship traffic west of the
Response: NOAA is not changing the CINMS boundary as part of this
management plan review. However, NOAA will further analyze the boundary
concepts in a separate environmental review process sometime in the
The shipping lanes were designated by the International Maritime
Organization (IMO) and any modification of these lanes would be decided
by this international body, not unilaterally by the United States or
its executive branch agencies such as NOAA. Should the United States
determine that the placement of the shipping lanes warrants
reconsideration (for example, to reduce the risk of ship strikes on
whales), the appropriate federal representatives would bring this
information to the IMO.
Water Quality--Enhanced Protection
282. Comment: The final management plan and sanctuary regulations
should make certain that the sanctuary is protected beyond minimum
state and Federal pollution requirements.
Response: Both the existing and modified Sanctuary regulations go
beyond state and other federal standards for the prohibition of
283. Comment: The EPA recommends the selection of NOAA's
Alternative 1, which provides additional protections for water quality,
including prohibiting the discharge of treated sewage from larger
vessels and the at-sea transfer of petroleum-based products, materials
or other matter (`lightering') within CINMS.
Response: Certain aspects of Alternative 1 are more protective to
CINMS resources and qualities. However, at this time, in order to be
consistent with the California Clean Coast Act, as well as with
regulations proposed by the Monterey Bay, Cordell Bank, and Gulf of the
Farallones national marine sanctuaries, NOAA is providing an exception
for treated sewage discharges from oceangoing ships that do not have
sufficient holding tank capacity to hold sewage while within the CINMS.
See the FEIS for additional text and analysis on large vessel sewage
discharge in the Sanctuary. With regard to the prohibition of
lightering, NOAA maintains that such a prohibition is not warranted at
this time (see the response to comment 176). Regarding Alternative 1,
see the response to comment 132.
284. Comment: $20,000 per year, as indicated in the DMP, will not
be commensurate with the workload associated with the Water Quality
Protection Planning Strategy.
Response: The estimated costs for this strategy do not include
staff time, which will be the principal cost of water quality program
development. This strategy is focused on developing a plan
for water quality protection, rather that implementation of specific
tasks. Furthermore, as explained in the strategy's background text, the
NMSP's West Coast Regional Office is playing a significant role in
helping to develop a CINMS water quality protection plan (and is not
reflected in estimated site costs for implementing this strategy).
CINMS will continue to work to leverage partner resources, including
funds, as appropriate.
Water Quality--Incorporate SAC Recommendations
285. Comment: The management plan should be updated to indicate
that the CINMS Advisory Council adopted the water quality needs
assessment report in 2005, and that it is thus a product of the full
Advisory Council rather than just the Conservation Working Group.
Response: NOAA has updated the FMP to note and describe the
Sanctuary Advisory Council's adopted Water Quality Needs Assessment for
the Channel Islands National Marine Sanctuary.
286. Comment: NOAA should incorporate the Advisory Council's water
quality report recommendations into the management plan.
Response: NOAA has updated the FMP's Water Quality Action Plan,
which now refers to the Sanctuary Advisory Council's 2005 report A
Water Quality Needs Assessment for the Channel Islands National Marine
Sanctuary, and the recommendations it contains. NOAA will work with the
CINMS Advisory Council, its working groups, and other partners to
implement the water quality strategy in the management plan, and to
develop a detailed Sanctuary water quality protection plan that will
describe knowledge and management gaps and how they may be addressed.
287. Comment: Comments support: CINMS' continued efforts to address
water quality concerns in the Sanctuary; the heightened attention to
specific threats to Sanctuary water quality; the management plan
placing a high value on monitoring and improving water quality; and the
regulations providing needed enhancements to CINMS water quality
protection. Support also expressed for evaluating and understanding
localized and large-scale spatial and temporal impacts from
oceanographic and climatic changes, and coastal and offshore impacts
from human population increases.
Response: Comment noted.
288. Comment: The Central Coast Water Board implements programs
that address many of the priority sub-issues identified in the DMP and
welcomes the opportunity to work cooperatively and proactively with the
Sanctuary on water quality issues.
Response: NOAA appreciates the Central Coast Water Board's support
on Sanctuary water quality issues.
289. Comment: The DMP/DEIS should incorporate a broad-based
approach and goals of the Ocean and Coastal Water Quality section of
the five-year strategic plan of the California Ocean Protection Council
Response: The CINMS Water Quality Action Plan provides the
foundation for a broad based approach and outlines the process for
developing a Sanctuary water quality protection plan. Sanctuary water
quality goals will be developed as part of this process, and may
include some of the goals identified in the OPC's five-year strategic
290. Comment: Water quality conservation is one of the most
critical issues facing Sanctuary managers in the coming five years and
beyond. While the three activities and updated regulations proposed in
Strategy WQ.2 are a good start toward meeting this objective, growing
threats to Sanctuary water quality warrant a much more proactive and
aggressive approach by CINMS.
Response: Once strategy WQ.2 is implemented and CINMS has a water
quality protection plan, NOAA will consider the future actions it will
need to take to best implement the activities identified in the plan to
address threats to Sanctuary water quality.
291. Comment: CINMS should convene a conference of Santa Barbara
Channel-area water quality experts to catalyze the action planning
process and facilitate the identification of issues that drive water
quality action planning.
Response: As described in the background to Strategy WQ.2 in the
FMP, CINMS will consult with area water quality experts as part of the
process to develop a water quality protection plan.
292. Comment: The Water Quality Protection Planning strategy should
explicitly assign a greater level of responsibility and leadership on
initiating short term water quality protection to the Sanctuary
Response: The NMSP and its managers have a responsibility to
address Sanctuary water quality. NMSP and CINMS leadership are also
accountable to NMSP performance measures, one of which calls for
sanctuaries to maintain or improve water quality based on long term
293. Comment: There are way too many people on this coastline, the
ocean is affected, and I'm sure it's going to affect the Sanctuary.
Response: Implementing the management plan's Water Quality Action
Plan will enable CINMS, by working in close coordination with other
area water quality managers, to better identify and address water
quality threats to the Sanctuary.
294. Comment: The DMP should include discharges from ship
accidents, and natural oil and gas seeps as important possible sources
affecting Sanctuary water quality.
Response: NOAA has revised the FMP's Water Quality Action Plan to
incorporate natural oil and gas seeps and discharges from vessel
accidents in the discussion of possible sources of pollution affecting
Sanctuary water quality.
295. Comment: Two commenters indicated that they agreed with or
supported the water quality comments submitted by the Sanctuary
Advisory Council's Conservation Working Group.
Response: Please refer to responses to the Conservation Working
Group's comments, listed in the table at the beginning of the FEIS
response-to-comments appendix under ``Krop, Linda.''
Water Quality--Research and Monitoring
296. Comment: Commenter encourages continued CINMS support for
Plumes and Blooms project and an assessment of its management
implications, and continued CINMS support for the Southern California
Bight Regional Monitoring surveys.
Response: Comment noted. NOAA plans to continue support for these
programs as described in the FMP.
297. Comment: NOAA should process and analyze water quality samples
from the Bight '03 survey and the Pac Baroness shipwreck exploration.
Response: ACINMS samples taken during the Bight '03 survey have
been lab processed, and the results are publicly available on the Web
site of the Southern California Coastal Water Research Project. In
addition, lab tests on sediment samples taken from the wreck site of
the Pac Baroness have been completed and some preliminary analysis work
was done in 2007, yielding no striking results.
298. Comment: CINMS research effort should aim to determine the
issues that will drive Sanctuary water quality action planning, and
this should be included in the water quality monitoring strategy.
Response: CINMS staff will work with water quality experts and
researchers, as appropriate, to identify and assess water quality
issues during the process of developing a water quality protection
program. These assessments will help set priorities for water quality
research and monitoring efforts.
299. Comment: Water quality sampling of anchorage areas within the
Sanctuary should be continued beyond the current pilot phase in order
to provide a more comprehensive picture of potential water quality
impacts associated with recreational boating around the Channel
Islands. The sampling should be expanded to better assess high-use
conditions by sampling more often during weekends and holidays. In
addition, the monitoring protocol should be adapted based on results
from the pilot phase. The management plan should reflect a commitment
to this continued monitoring, and specify the subsequent research and
management steps CINMS staff will take based on monitoring results.
Response: Monitoring of select anchorages and other sites within
the Sanctuary took place in 2006, with Santa Barbara Channel Keeper
performing the work under agreement with CINMS. In 2007, a report was
produced by Santa Barbara Channel Keeper detailing the results of this
monitoring effort. In the future, CINMS may continue and potentially
expand this type of monitoring within the Sanctuary, as resources allow
and upon further consideration of the efficacy of this approach. See
activity 3 of Strategy WQ.1 for a description of CINMS water quality
300. Comment: The management plan's Water Quality Action Plan
Strategy WQ.1 should provide additional specificity to identify or at
least propose specific measures CINMS staff can take to physically or
institutionally support storm water plume researchers, such as with
vessel time, lab space, human resources, etc. As written, the activity
is too general with respect to existing information, SAC consensus,
CINMS participation, and resource protection needs. The management plan
should also articulate CINMS support for future Bight Surveys by first
allocating specific funding to analyze existing samples (and organize
that data for public availability), and then by planning funding and
human resources for extensive sampling, processing and water quality
data management in upcoming Bight Surveys.
Response: Strategy WQ.1 now notes the importance of better
understanding stormwater plumes and how they may affect Sanctuary water
quality and living resources. Additional details with regard to
specific new monitoring measures to be taken have not yet been
developed, but are expected to result from implementation of the
broader strategy to develop a water quality protection plan (WQ.2).
Regarding the Bight '03 survey data, all CINMS samples taken during
that project have been lab processed, and the results are publicly
available on the Web site of the Southern California Coastal Water
Research Project. Furthermore, as the Water Quality Action Plan states,
CINMS intends to continue support for future Bight Surveys.
301. Comment: NOAA should provide for systematic monitoring of
anthropogenic marine debris.
Response: Marine debris is included in the description of water
quality issues to be addressed through the Water Quality Action Plan,
and NOAA may consider the suggestion of a systematic monitoring program
for marine debris during the water quality protection planning process.
302. Comment: The Matilija Dam (Ventura County) is scheduled to be
removed, potentially impacting CINMS resources through increased
sedimentation. Monitoring should be implemented to understand the
impact of this dam removal.
Response: The Matilija Dam is scheduled to be gradually removed
starting in 2012. According to recent environmental assessments of dam
removal, short term sediment stabilization will result in approximately
30% increase in coarse (sand and bigger) sediment at the associated
beach over 50 years, which will be released gradually over 20-30 years,
depending upon climate and hydrology. Fine sediments removed from the
reservoir will be slurried downstream and placed within the 100 year
floodplain. There is an estimate of potential increase in fine sediment
plume from the river, but quantitatively this will be insignificant
since the dam currently passes 100% of the fine sediment. At this time,
NOAA will rely on the relevant federal and state authorities to monitor
and report on increased sedimentation from dam removal, while also
continuing to support related water quality, sediment and plume studies
(see the response to comment 300).
Water Quality--Specify Plans in More Detail
303. Comment: The management plan needs more specificity regarding
corrective actions for managing water quality impacts in the Sanctuary.
The Water Quality Action Plan is relying almost entirely on a long-term
bureaucratic process subject to Congressional funding, and the success
or failure of Staff recruitment at the NMSP's regional level. This is
particularly troubling given the array of documented water quality
threats facing Channel Islands today, and the suite of relatively low-
cost, actionable water quality conservation recommendations delivered
from the Advisory Council to the Sanctuary Superintendent in 2005.
Response: The Water Quality Action Plan describes a future process
that will build on the best available information, engage stakeholders
and experts, identify and prioritize gaps in Sanctuary water quality
protection, and propose management actions to address threats. NOAA
understands that there are known issues and many specific
recommendations that have been put forth by various individuals and the
Sanctuary Advisory Council, and intends to build on those ideas. CINMS
staff have added recent information to the Water Quality Action Plan,
drawing on documents such as the water quality needs assessment
endorsed by the Sanctuary Advisory Council. At this time, however, full
details of what the water quality protection program would entail have
not yet been decided upon, and will be determined through the process
described in the Water Quality Action Plan.
304. Comment: NOAA should expeditiously hire a new West Coast
Region Water Quality Coordinator.
Response: The hiring of a regional water quality coordinator or
other positions related to CINMS water quality protection planning will
be considered as appropriate, and as resources allow. NOAA recognizes
that resource limitations as well as the necessary program and partner
developments may limit implementation of all of the activities in the
various action plans. NOAA will continue to work with the Department of
Commerce, Office of Management and Budget, and Congress in developing
supporting justifications when preparing budget submissions.
305. Comment: NOAA should consider creating a water quality
specialist position at CINMS.
Response: As CINMS water quality protection program continues to
evolve, NOAA will consider a new staff position. Any new position
would, however, be contingent upon the availability of resources and
needs required for addressing identified issues and actions.
Water Quality--Watershed Approach
306. Comment: Given that land-based activities can have a dramatic
effect on water quality, the Sanctuary should take a watershed approach
in coordination with other agencies and groups involved in water
Response: A watershed approach and coordination with other agencies
is important when addressing CINMS water quality issues. NOAA will work
in close collaboration with area water quality partners in the
development of the CINMS water quality protection plan, and will
consider the task force suggestion.
Water Quality--Working Group
307. Comment: The management plan should establish a Water Quality
Working Group within the SAC. Any Water Quality Protection Program the
working group develops should be similar to that at the Monterey Bay
National Marine Sanctuary.
Response: CINMS staff and Advisory Council members have been
discussing the potential formation of a Water Quality Working Group for
several years. As CINMS implements Strategy WQ.2, staff will revisit
this idea with the Advisory Council. Process approaches, such as the
possible formation of a Working Group, will be defined at that point.
Stakeholder and expert participation is a hallmark of the Sanctuary's
management approach, and will be part of the overall process to develop
a water quality protection program. As Strategy WQ.2 notes, CINMS will
use, to the extent appropriate, the existing Monterey Bay National
Marine Sanctuary Water Quality Protection Program as a model.
V. Changes From the Proposed Rule
NOAA published a proposed rule for this action on May 19, 2006 (71
FR 29096). This final rule incorporates changes to the 2006 proposed
rule based on comments received during the 2006 public comment period,
comments received during the 2008 public comment period (regarding
large vessel sewage and graywater discharge), and NOAA's subsequent
Between May and July of 2006, NOAA received public comment and held
two hearings on the proposed rule and associated DEIS. Between March
and May 2008, NOAA received public comment on a supplemental proposed
rule for discharges/deposits from within or into the Sanctuary and
associated supplemental DEIS (SDEIS). NOAA received over 700 comments
on the DEIS, SDEIS, and proposed rules.
Regulation changes between the proposed and final rules include the
Discharge and deposit regulation: Modified graywater
exception applies to vessels less than 300 gross registered tons (GRT),
and oceangoing ships 300 GRT or more without sufficient holding tank
capacity to hold graywater while within the CINMS.
Discharge and deposit regulation: Modified treated sewage
exception applies to vessels less than 300 GRT, as well as to
oceangoing ships without sufficient holding tank capacity to hold
treated sewage while within the Sanctuary.
Added definitions for ``cruise ship,'' ``oceangoing
ship,'' and ``graywater''.
Discharge and deposit regulation: Modified the exception
for fish, fish parts and chumming materials to clarify that it applies
to the lawful practice of discarding fish scraps used in or resulting
from lawful fishing.
Removed the proposed outer boundary coordinate
corrections, and removed the proposed corrections to the legal
description of the Sanctuary area based on recalculations of the
As NOAA explained in the March 2008 proposed rule and SDEIS, after
receiving comments on the 2006 proposed rule and DEIS, NOAA modified
the Sanctuary's proposed discharge regulation to better address
potential impacts of sewage and graywater discharges from large
vessels. In addition, based on comments received on the 2008 proposed
rule and SDEIS, NOAA further modified the discharge regulation as it
pertains to treated sewage discharges from large vessels. The final
rule's discharge regulation provides that the exception for treated
sewage is applicable to small vessels (less than 300 GRT), as well as
to oceangoing ships (defined in the regulations as private, commercial,
government, or military vessels of 300 gross registered tons or more,
not including cruise ships) without sufficient holding tank capacity to
hold sewage while within the Sanctuary. The final rule's discharge
regulation as it pertains to graywater provides that the exception for
graywater is only applicable to small vessels (less than 300 GRT), and
to oceangoing ships without sufficient holding tank capacity to hold
graywater while within the Sanctuary.
In 2007, NOAA made technical corrections to the CINMS boundary
coordinates, re-calculated the original CINMS area as approximately
1,113 square nautical miles (72 FR 29208), and increased the Sanctuary
area by approximately 15 square nautical miles to allow the boundary of
four marine reserves to be defined by straight lines projecting outside
the original CINMS boundary, allowing for better enforcement of the
marine reserves. This change did not constitute a significant change in
the geographic area of the Sanctuary (other than the approximately 15
square nautical miles referred to above) but rather an improvement in
the estimate of its size. NOAA originally intended to make technical
corrections to the Sanctuary boundary coordinates and re-calculate the
CINMS area (provided at 15 CFR 922.70) as part of this rule. However,
since NOAA made the technical corrections to Sanctuary boundary
coordinates and re-calculated the CINMS area in 2007 as part of the
FEIS and final rule to establish marine reserves and conservation areas
within the Sanctuary, these aspects of clarifying the Sanctuary
boundary description are reflected in, but not established by this
VI. Miscellaneous Rulemaking Requirements
National Marine Sanctuaries Act
Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that
the procedures specified in section 304 for designating a National
Marine Sanctuary be followed in modifying any term of designation.
Because this action revises the terms of designation, NOAA must comply
with the requirements of section 304(a)(5). All requirements have been
National Environmental Policy Act
When changing a term of designation of a National Marine Sanctuary,
section 304 of the NMSA (16 U.S.C. 1434(a)(2)(A)) requires the
preparation of an environmental impact statement (EIS), as defined by
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),
and that the draft EIS be made available to the public. NOAA prepared a
draft EIS (DEIS) and supplemental DEIS (SDEIS) on the proposal, and
copies are available at the address and Web site listed in the Address
section of this final rule. Responses to comments received on the DEIS,
SDEIS and proposed rule were published in the final EIS and are also
provided in this final rule.
Coastal Zone Management Act
The California Coastal Commission has concurred that this action is
consistent to the maximum extent
practicable with the California Coastal Management Program.
Executive Order 12866: Regulatory Impact
This final rule has been determined to be not significant within
the meaning of Executive Order 12866.
Executive Order 13132: Federalism Assessment
NOAA has concluded that this regulatory action does not have
federalism implications, as that term is defined in Executive Order
13132, to warrant preparation of a federalism assessment. Through the
course of the development of the management plan and regulatory changes
NOAA consulted with members of the Sanctuary Advisory Council, the
California Resources Agency, California Department of Fish and Game,
and the California Coastal Commission, California Department of Boating
and Waterways, California Department of Fish and Game, California State
Lands Commission, and California Resources Agency. Also, in 2003, NOAA
consulted in writing with the above mentioned state agencies in
addition to: The Office of the Governor of California, the California
Department of Parks and Recreation, the California Department of Water
Resources, the California Department of Conservation, the California
Environmental Protection Agency, the California State Water Resources
Control Board, and the California Assembly Committee on Natural
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that the proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The factual basis for this certification appears in the proposed rule
and is not repeated here. There were no comments received on the
certification, and comments related to the economic impacts of this
rule do not change the basis of the certification. As a result, a final
regulatory flexibility analysis was not required and none was prepared.
Paperwork Reduction Act
This rule does not contain any new information collection
requirements or revisions to the existing information collection
requirement that was approved by OMB (OMB Control Number 0648-0141)
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act, unless that collection of information
displays a currently valid OMB control number.
A complete list of all references cited herein is available upon
request (see ADDRESSES section).
Dated: January 9, 2009.
Associate Assistant Administrator for Management and CFO/CAO, Ocean
Services and Coastal Zone Management.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Historic
preservation, Intergovernmental relations, Marine resources, Natural
resources, Penalties, Recreation and recreation areas, Reporting and
recordkeeping requirements, Wildlife.
Accordingly, for the reasons set forth above, 15 CFR part 922 is
amended as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
1. The authority citation for part 922 continues to read as follows:
Authority: 16 U.S.C. 1431 et seq.
2. Sections 922.70 through 992.74 are revised to read as follows:
922.72 Prohibited or otherwise regulated activities--Sanctuary-wide.
922.73 Additional prohibited or otherwise regulated activities--
marine reserves and marine conservation area.
922.74 Permit procedures and issuance criteria.
Sec. 922.70 Boundary.
The Channel Islands National Marine Sanctuary (Sanctuary) consists
of an area of approximately 1,110 square nautical miles (nmi) of
coastal and ocean waters, and the submerged lands thereunder, off the
southern coast of California. The Sanctuary boundary begins at the Mean
High Water Line of and extends seaward to a distance of approximately
six nmi from the following islands and offshore rocks: San Miguel
Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa
Barbara Island, Richardson Rock, and Castle Rock (the Islands). The
seaward boundary coordinates are listed in Appendix A to this subpart.
Sec. 922.71 Definitions.
In addition to those definitions found at 15 CFR 922.3, the
following definitions apply to this subpart:
Cruise ship means a vessel with 250 or more passenger berths for
Graywater means galley, bath, or shower water.
Introduced species means any species (including but not limited to
any of its biological matter capable of propagation) that is non-native
to the ecosystems of the Sanctuary; or any organism into which altered
genetic matter, or genetic matter from another species, has been
transferred in order that the host organism acquires the genetic traits
of the transferred genes.
Motorized personal watercraft means 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. The length is measured from end to end over the deck
excluding sheer, meaning a straight line measurement of the overall
length from the foremost part of the vessel to the aftermost part of
the vessel, measured parallel to the centerline. Bow sprits, bumpkins,
rudders, outboard motor brackets, and similar fittings or attachments,
are not included in the measurement. Length is stated in feet and
Oceangoing ship means a private, commercial, government, or
military vessel of 300 gross registered tons or more, not including
Pelagic finfish are defined as: Northern anchovy (Engraulis
mordax), barracudas (Sphyraena spp.), billfishes (family
Istiophoridae), dolphinfish (Coryphaena hippurus), Pacific herring
(Clupea pallasi), jack mackerel (Trachurus symmetricus), Pacific
mackerel (Scomber japonicus), salmon (Oncorhynchus spp.), Pacific
sardine (Sardinops sagax), blue shark (Prionace glauca), salmon shark
(Lamna ditropis), shortfin mako shark (Isurus oxyrinchus), thresher
sharks (Alopias spp.), swordfish (Xiphias gladius), tunas (family
Scombridae), and yellowtail (Seriola lalandi).
Stowed and not available for immediate use means not readily
accessible for immediate use, e.g., by being securely covered and
lashed to a deck or bulkhead, tied down, unbaited, unloaded, or
partially disassembled (such as spear shafts being kept separate from
Sec. 922.72 Prohibited or otherwise regulated activities--Sanctuary-
(a) Except as specified in paragraphs (b) through (e) of this
section, the following activities are prohibited and thus unlawful for
any person to conduct or cause to be conducted:
(1) Exploring for, developing, or producing hydrocarbons within the
Sanctuary, except pursuant to leases executed prior to March 30, 1981,
and except the laying of pipeline pursuant to exploring for,
developing, or producing hydrocarbons.
(2) Exploring for, developing, or producing minerals within the
Sanctuary, except producing by-products incidental to hydrocarbon
production allowed by paragraph (a)(1) of this section.
(3)(i) Discharging or depositing from within or into the Sanctuary
any material or other matter except:
(A) Fish, fish parts, or chumming materials (bait) used in or
resulting from lawful fishing activity within the Sanctuary, provided
that such discharge or deposit is during the conduct of lawful fishing
activity within the Sanctuary;
(B) For a vessel less than 300 gross registered tons (GRT), or an
oceangoing ship without sufficient holding tank capacity to hold sewage
while within the Sanctuary, biodegradable effluent generated incidental
to vessel use by an operable Type I or II marine sanitation device
(U.S. Coast Guard classification) approved in accordance with section
312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33
U.S.C. 1321 et seq. Vessel operators must lock all marine sanitation
devices in a manner that prevents discharge or deposit of untreated
(C) Biodegradable matter from:
(1) Vessel deck wash down;
(2) Vessel engine cooling water;
(3) Graywater from a vessel less than 300 gross registered tons;
(4) Graywater from an oceangoing ship without sufficient holding
tank capacity to hold graywater while within the Sanctuary;
(D) Vessel engine or generator exhaust;
(E) Effluent routinely and necessarily discharged or deposited
incidental to hydrocarbon exploration, development, or production
allowed by paragraph (a)(1) of this section; or
(F) Discharge allowed under section 312(n) of the FWPCA.
(ii) Discharging or depositing from beyond the boundary of the
Sanctuary any material or other matter that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality, except those
listed in paragraphs (a)(3)(i)(B) through (F) of this section and fish,
fish parts, or chumming materials (bait) used in or resulting from
lawful fishing activity beyond the boundary of the Sanctuary, provided
that such discharge or deposit is during the conduct of lawful fishing
(4) Drilling into, dredging, or otherwise altering the submerged
lands of the Sanctuary; or constructing or placing any structure,
material, or other matter on or in the submerged lands of the
Sanctuary, except as incidental to and necessary to:
(i) Anchor a vessel;
(ii) Install an authorized navigational aid;
(iii) Conduct lawful fishing activity;
(iv) Lay pipeline pursuant to exploring for, developing, or
producing hydrocarbons; or
(v) Explore for, develop, or produce hydrocarbons as allowed by
paragraph (a)(1) of this section.
(5) Abandoning any structure, material, or other matter on or in
the submerged lands of the Sanctuary.
(6) Except to transport persons or supplies to or from any Island,
operating within one nmi of any Island any vessel engaged in the trade
of carrying cargo, including, but not limited to, tankers and other
bulk carriers and barges, any vessel engaged in the trade of servicing
offshore installations, or any vessel of three hundred gross registered
tons or more, except fishing or kelp harvesting vessels.
(7) Disturbing a seabird or marine mammal by flying a motorized
aircraft at less than 1,000 feet over the waters within one nmi of any
Island, except (if allowed under paragraph (a)(9) of this section):
(i) To engage in kelp bed surveys; or
(ii) to transport persons or supplies to or from an Island.
(8) Moving, removing, injuring, or possessing, or attempting to
move, remove, injure, or possess a Sanctuary historical resource.
(9) Taking any marine mammal, sea turtle, or seabird within or
above the Sanctuary, except as authorized by the Marine Mammal
Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered
Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird
Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any
regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
(10) Possessing within the Sanctuary (regardless of where taken
from, moved, or removed from) any marine mammal, sea turtle, or
seabird, except as authorized by the MMPA, ESA, MBTA, or any
regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
(11) Marking, defacing, damaging, moving, removing, or tampering
with any sign, notice, or placard, whether temporary or permanent, or
any monument, stake, post, or other boundary marker related to the
(12) Introducing or otherwise releasing from within or into the
Sanctuary an introduced species, except striped bass (Morone saxatilis)
released during catch and release fishing activity.
(13) Operating a motorized personal watercraft within waters of the
Sanctuary that are coextensive with the Channel Islands National Park,
established by 16 U.S.C. 410(ff).
(b)(1) The prohibitions in paragraphs (a)(3) through (13) of this
section and in Sec. 922.73 do not apply to military activities carried
out by DOD as of the effective date of these regulations and
specifically identified in section 3.5.9 (Department of Defense
Activities) of the Final Channel Islands National Marine Sanctuary
Management Plan/Final Environmental Impact Statement (FMP/FEIS), Volume
II: Environmental Impact Statement, 2008, authored and published by
NOAA (``pre-existing activities''). Copies of the document are
available from the Channel Islands National Marine Sanctuary, 113
Harbor Way, Santa Barbara, CA 93109. Other military activities carried
out by DOD may be exempted by the Director after consultation between
the Director and DOD.
(2) A military activity carried out by DOD as of the effective date
of these regulations and specifically identified in the section
entitled ``Department of Defense Activities'' of the FMP/FEIS is not
considered a pre-existing activity if:
(i) It is modified in such a way that requires the preparation of
an environmental assessment or environmental impact statement under the
National Environmental Policy Act, 42 U.S.C. 4321 et seq., relevant to
a Sanctuary resource or quality;
(ii) It is modified, including but not limited to changes in
location or frequency, in such a way that its possible adverse effects
on Sanctuary resources or qualities are significantly greater than
previously considered for the unmodified activity;
(iii) It is modified, including but not limited to changes in
location or frequency, in such a way that its possible adverse effects
on Sanctuary resources or qualities are significantly different in
manner than previously considered for the unmodified activity; or
(iv) There are new circumstances or information relevant to a
Sanctuary resource or quality that were not addressed in the FMP/FEIS.
(3) In the event of destruction of, loss of, or injury to a
Sanctuary resource or quality resulting from an incident, including,
but not limited to, discharges, deposits, and groundings, caused by a
DOD activity, DOD, in coordination with the Director, must promptly
prevent and mitigate further damage and must restore or replace the
Sanctuary resource or quality in a manner approved by the Director.
(4) All DOD activities must be carried out in a manner that avoids
to the maximum extent practicable any adverse impacts on Sanctuary
resources and qualities.
(c) The prohibitions in paragraphs (a)(3) through (10), (a)(12),
and (a)(13) of this section and in Sec. 922.73 do not apply to any
activity conducted under and in accordance with the scope, purpose,
terms, and conditions of a National Marine Sanctuary permit issued
pursuant to 15 CFR 922.48 and 922.74.
(d) The prohibitions in paragraphs (a)(3) through (11) and (a)(13)
of this section and in Sec. 922.73 do not apply to any activity
necessary to respond to an emergency threatening life, property, or the
(e) The prohibitions in paragraphs (a)(3) through (11) and (a)(13)
of this section and in Sec. 922.73 do not apply to any activity
necessary for valid law enforcement purposes in the Sanctuary.
Sec. 922.73 Additional prohibited or otherwise regulated activities--
marine reserves and marine conservation area.
(a) Marine reserves. Unless prohibited by 50 CFR part 660
(Fisheries off West Coast States), the following activities are
prohibited and thus unlawful for any person to conduct or cause to be
conducted within a marine reserve described in Appendix B to this
subpart, except as specified in paragraphs (b) through (e) of Sec.
(1) Harvesting, removing, taking, injuring, destroying, collecting,
moving, or causing the loss of any Sanctuary resource, or attempting
any of these activities.
(2) Possessing fishing gear on board a vessel unless such gear is
stowed and not available for immediate use.
(3) Possessing any Sanctuary resource, except legally harvested
fish on board a vessel at anchor or in transit.
(b) Marine conservation area. Unless prohibited by 50 CFR part 660
(Fisheries off West Coast States), the following activities are
prohibited and thus unlawful for any person to conduct or cause to be
conducted within the marine conservation area described in Appendix C
to this subpart, except as specified in paragraphs (b) through (e) of
(1) Harvesting, removing, taking, injuring, destroying, collecting,
moving, or causing the loss of any Sanctuary resource, or attempting
any of these activities, except:
(i) Recreational fishing for pelagic finfish; or
(ii) Commercial and recreational fishing for lobster.
(2) Possessing fishing gear on board a vessel, except legal fishing
gear used to fish for lobster or pelagic finfish, unless such gear is
stowed and not available for immediate use.
(3) Possessing any Sanctuary resource, except legally harvested
Sec. 922.74 Permit procedures and issuance criteria.
(a) A person may conduct an activity prohibited by Sec.
922.72(a)(3) through (10), (a)(12), and (a)(13), and Sec. 922.73, if
such activity is specifically authorized by, and conducted in
accordance with the scope, purpose, terms, and conditions of, a permit
issued under Sec. 922.48 and this section.
(b) The Director, at his or her sole discretion, may issue a
permit, subject to terms and conditions as he or she deems appropriate,
to conduct an activity prohibited by Sec. 922.72(a)(3) through (10),
(a)(12), and (a)(13), and Sec. 922.73, if the Director finds that the
(1) Is appropriate research designed to further understanding of
Sanctuary resources and qualities;
(2) Will further the educational value of the Sanctuary;
(3) Will further salvage or recovery operations in or near the
Sanctuary in connection with a recent air or marine casualty;
(4) Will assist in managing the Sanctuary; or
(5) Will further salvage or recovery operations in connection with
an abandoned shipwreck in the Sanctuary title to which is held by the
State of California.
(c) The Director may not issue a permit under Sec. 922.48 and this
section unless the Director also finds that:
(1) The proposed activity will have at most short-term and
negligible adverse effects on Sanctuary resources and qualities;
(2) The applicant is professionally qualified to conduct and
complete the proposed activity;
(3) The applicant has adequate financial resources available to
conduct and complete the proposed activity;
(4) The duration of the proposed activity is no longer than
necessary to achieve its stated purpose;
(5) The methods and procedures proposed by the applicant are
appropriate to achieve the goals of the proposed activity, especially
in relation to the potential effects of the proposed activity on
Sanctuary resources and qualities;
(6) The proposed activity will be conducted in a manner compatible
with the primary objective of protection of Sanctuary resources and
qualities, considering the extent to which the conduct of the activity
may diminish or enhance Sanctuary resources and qualities, any
potential indirect, secondary, or cumulative effects of the activity,
and the duration of such effects;
(7) The proposed activity will be conducted in a manner compatible
with the value of the Sanctuary as a source of recreation and as a
source of educational and scientific information, considering the
extent to which the conduct of the activity may result in conflicts
between different users of the Sanctuary and the duration of such
(8) It is necessary to conduct the proposed activity within the
(9) The reasonably expected end value of the proposed activity
furthers Sanctuary goals and purposes and outweighs any potential
adverse effects on Sanctuary resources and qualities from the conduct
of the activity; and
(10) Any other matters the Director deems appropriate do not make
the issuance of a permit for the proposed activity inappropriate.
(d) Applications. (1) Applications for permits should be addressed
to the Director, Office of National Marine Sanctuaries; ATTN: Manager,
Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa
Barbara, CA 93109.
(2) In addition to the information listed in Sec. 922.48(b), all
applications must include information the Director needs to make the
findings in paragraphs (b) and (c) of this section.
(e) In addition to any other terms and conditions that the Director
deems appropriate, a permit issued pursuant to this section must
require that the permittee agree to hold the United States harmless
against any claims arising out of the conduct of the permitted
[FR Doc. E9-652 Filed 1-15-09; 8:45 am]
BILLING CODE 3510-NK-P