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Appendix B. Proposed Notice of Designation and Final Rule Making
Section I: Background

EIS Navigation

Cover
Table of Contents
List of Figures
List of Tables
Part I:
Executive Summary
Part II:
The Affected Environment
  I. Regional Context
  II. Sanctuary Resources
  III. Human ActivitiesI
  IV. Existing Resource Protection Regime
Part III:
Alternatives Including The Preferred Alternative
  I. Boundary Alternatives
  II.Regulatory Alternatives
  III. Management Alternatives
Part IV
Environmental Concequences
  I. Boundary Alternatives
  II. Regulatory Alternatives
  III. Management Alternative Consequences
  IV. Unavoidable Adverse Environmental or Socioeconomic Effects
  V. Relationship Between Short-term Uses of the Environment and the Maintenance and Enhancement of Long-term Productivity
Part V:
Sanctuary Management Plan
  I. Introduction
  II. Resource Protection
  III. Research
  IV. Education
  V. Administration
Part VI:
List of Preparers and Alternatives
Part VII:
List of Agencies, Organizations, and Persons Receiving Copies
Part VIII:
References
Part IX
Appendices
Appendix B TOC

I. Background

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
3510-08-M

15 CFR Chapter IX, Subchapters A and B and Part 944

[Docket No. 900122-2020] RIN 0648-AC63

Monterey Bay National Marine Sanctuary Regulations

AGENCY:

Office of Ocean and Coastal Resource Management (OCRM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final Rule; National Marine Sanctuary Designation; and Summary of Final Management Plan.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA), by the Designation Document contained in this document, and as required by Section 205(a)(3) of Pub. L. 100-627, designates an approximately 4,024 square nautical mile area of coastal and ocean waters, and the submerged lands thereunder, in and surrounding Monterey Bay off the coast of central California as the Monterey Bay National Marine Sanctuary. This document publishes the Designation Document for the Sanctuary and summarizes the final management plan for it. The final management plan details the goals and objectives, management responsibilities, research activities, interpretive and educational programs, and enforcement, including surveillance, activities for the Sanctuary.

Further, NOAA, by this notice, issues final regulations to implement the designation by regulating activities affecting the Sanctuary consistent with the provisions of the Designation Docu- ment. The intended effect of these regulations is to protect the conservation, recreational, ecological, historical, research, educational and esthetic resources and qualities of the Monterey Bay National Marine Sanctuary.

EFFECTIVE DATE:

Pursuant to Section 304(b) of the Marine Protection, Research, and Sanctuaries Act, Congress and the Governor of the State of California have forty-five days of continuous session of Congress beginning on the day on which this document is published to review the designation and regulations before they take effect. After forty-five days, the designation (and any of its terms not disapproved by Congress through enactment of a joint resolution) and regulations automatically become final and take effect. Further, if the Governor of the State of California certifies within the forty-five-day period to the Secretary of Commerce that the designation or any of its terms is unacceptable, the designation or the unacceptable terms cannot take effect in the area of the Sanctuary lying within the seaward boundary of the State. If the Secretary considers that any disapproval will affect the designation in a manner that the goals and objectives of the Sanctuary cannot be fulfilled, the Secretary may withdraw the entire designation. A document announcing the effective date will be published in the Federal Register.

ADDRESSES:

Copies of the Final Environmental Impact Statement/ Management Plan (FEIS/MP) prepared for the designation are available upon request to the Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1825 Connecticut Avenue, N.W., Suite 714, Washington, D.C. 20235.

FOR FURTHER INFORMATION CONTACT: Mark Murray-Brown, 202/606- 4126.

SUPPLEMENTARY INFORMATION:

I. Background

Title III of the Marine Protection, Research, and Sanctuaries Act, as amended (the "Act" or "MPRSA"), 16 U.S.C. 1431 et seq., authorizes the Secretary of Commerce to designate discrete areas of the marine environment as national marine sanctuaries if, as required by Section 303 of the Act (16 U.S.C. 1433), the Secretary finds, in consultation with Congress, a variety of specified officials, and other interested persons, that the designation will fulfill the purposes and policies of the Act (set forth in Section 301(b) (16 U.S.C. 1431(b))) and: (1) the area proposed for designation is of special national significance due to its resource or human-use values; (2) existing state and Federal authorities are inadequate to ensure coordinated and comprehensive conservation and management of the area, including resource protection, scientific research and public education; (3) designation of the area as a national marine sanctuary will facilitate the coordinated and comprehensive conservation and management of the area; and (4) the area is of a size and nature that will permit comprehensive and coordinated conservation and management. Before the Secretary may designate an area as a national marine sanctuary, Section 303 (16 U.S.C. 1433) requires him or her to make the above described findings and Section 304 (16 U.S.C. 1434), setting forth the procedures for designation, requires him or her to publish in the Federal Register regulations implementing the designation and to advise the public of the availability of the FEIS/MP. The authority of the Secretary to designate national marine sanctuaries and administer the other provisions of the Act has been delegated to the Under Secretary of Commerce for Oceans and Atmosphere by DOC Organization Order 10-15, section 3.01(z), January 11, 1988. The authority to administer the other provisions of the Act has been redelegated to the Assistant Administrator for Ocean Services and Coastal Zone Management of NOAA by NOAA Circular 83-38, Directive 05-50, September 21, 1983, as amended.

The State of California nominated the Monterey Bay area in 1977, along with nine other offshore marine areas, for consideration for designation as national marine sanctuaries. In response to these nominations, NOAA selected the Channel Islands, the Point Reyes-Farallon Islands, and the Monterey Bay areas for further consideration. In December 1978, NOAA released an issue paper on these three sites, presenting several boundary and regulatory options for each site. Public hearings were held and, based on the responses, NOAA, on August 10, 1979, declared all three sites as active candidates for designation as national marine sanctuaries.

On September 21, 1980, the Channel Islands National Marine Sanctuary was designated and on January 16, 1981, the Point Reyes- Farallon Islands National Marine Sanctuary (later renamed the Gulf of the Farallones National Marine Sanctuary) was designated. On December 14, 1983 (see 48 FR 56253), NOAA removed the Monterey Bay area from the list of active candidates.

On November 7, 1988, Pub. L. No. 100-627, which amends and authorizes appropriations for Title III of the Act, was signed into law. Section 205(a)(3) of Pub. L. No. 100-627 directs that the Secretary of Commerce designate the Monterey Bay National Marine Sanctuary.

On January 6, 1989, NOAA announced (54 FR 448) that the Monterey Bay area had again become an active candidate for desig- nation as a national marine sanctuary. On January 25 and 26, 1989, NOAA sponsored two public scoping meetings in Monterey and Santa Cruz to solicit public comment on the scope and significance of issues involved in designating the Sanctuary. The public response was extremely favorable to proceeding with the evaluation.

On August 3, 1990 NOAA published a proposed Designation Document and proposed implementing regulations and announced the availability of the Draft Environmental Impact Statement/Management Plan (DEIS/MP) (55 FR 31786). Public hearings to receive comments on the proposed designation, proposed regulations, and DEIS/MP were held on September 12, 1990 in Monterey; on September 13, 1990 in Santa Cruz; and on September 14, 1990 in Half Moon Bay, California. All comments received by NOAA in response to the Federal Register notice and at the public hearings were considered and, where appropriate, were incorporated. A summary of the significant comments on the proposed regulations and the regulatory elements of the DEIS/MP and NOAA's responses to them follow. The comments are both presented and responded to in greater detail in Appendix F of the FEIS/MP.

(1) Comment: NOAA should extend its preferred Boundary Alternative 2 both north and south and choose Boundary Alternative 5. Boundary Alternative 5 would protect critical nesting and migratory paths between Monterey and San Mateo County coasts, create a continuous protected management regime between the Gulf of the Farallones National Marine Sanctuary and the proposed Monterey Bay National Marine Sanctuary, provide a greater buffer to sensitive areas such as Año Nuevo and the Fitzgerald Marine Reserve, and protect a greater area of the southern California sea otter range and habitat.

Response: NOAA agrees. The FEIS/MP-preferred Boundary Alternative 5 incorporates a north and south extension of the DEIS/MP-preferred Boundary Alternative 2. Boundary Alternative 5 received the vast majority of support from the public during the public comment period. Boundary Alternative 5 has been chosen as preferred because it integrates important coastal, nearshore and deep-ocean canyon resource zones under one management regime. These zones include the Monterey submarine canyon - the focal point of the Sanctuary; Monterey Bay itself; the Big Sur and San Mateo coastal area, including Año Nuevo and the Fitzgerald Marine Reserve; the adjacent continental shelf, slope and rise; certain highly productive shoreline and intertidal areas, such as Pescadero Marsh and Elkhorn Slough; and the deep ocean environments of the Ascension, Monterey Bay, Big Sur and Partington Canyon complexes.

The boundary expansion excludes a small area of approximately 71 square nautical miles off the north coast of San Mateo County and the City and County of San Francisco. The excluded area encompasses the anticipated discharge plume of the combined sewer overflow component of the City and County of San Francisco's sewage treatment program, the shipping channel providing access to and from San Francisco Bay, and the Golden Gate dredged material disposal site associated with this channel. NOAA has determined that the nature and level of these activities are not appropriate for inclusion within a national marine sanctuary. By excluding this small area from the Sanctuary, NOAA will be able to focus Sanctuary management on the long-term protection of other areas that contain nationally significant resources and qualities and are less heavily impacted by human activity. By excluding the anticipated discharge plume of the combined sewer overflow from the Sanctuary, a buffer zone has been created protecting Sanctuary resources and qualities from the discharge.

The boundary expansion not only encompasses additional resources but also will provide enhanced protection from potential human threats to the north and south. For example, to the north, off of the San Mateo coast, potential new dredged material disposal and oil and gas development activities are under consideration within the Sanctuary boundary. To the south, the pristine area of the Big Sur coast and sea otter habitat would be encompassed and protected by the Sanctuary regime.

(2) Comment: Oil and gas development within the Sanctuary should either be prohibited or regulated. Concerns range from impacts of potential toxic wastes released from oil-drilling platforms, reduced tourism due to diminished scenic views, lack of adequate emergency oil response capabilities, to catastrophic blow outs. Response: NOAA agrees. The regulations prohibit exploring for, developing or producing oil or gas throughout the entire Sanctuary. Such economic development and construction of man-made structures would severely disrupt the natural and aesthetic qualities of the area and be inconsistent with the purposes of the Sanctuary. Although certain man-made structures may be permissible in the future for limited purposes such as research or natural resource protection, the threats from oil and gas activities to Sanctuary resources and qualities warrant prohibition. Threats include not only catastrophic events such as oil spills associated with blow-outs, rupture of pipelines or loading of tankers but also long-term chronic events such as discharge of drilling fluids, cuttings and air emissions. Offshore oil and gas activities have never been conducted in the Monterey Bay area. The area would suffer aesthetic disturbance ranging from the presence of offshore rig structures to building of shore facilities and the necessary transportation of personnel and equipment to and from the offshore rigs.
(3) Comment: NOAA should either regulate or prohibit vessel traffic within the Sanctuary area. Specifically: 1) traffic should be prohibited unless vessels are bound for a destination within the Sanctuary; 2) size of vessels to be regulated or prohibited from the Sanctuary area should be clarified; 3) vessels should either be routed offshore and avoid the Sanctuary area completely, or traffic lanes should be developed along the Sanctuary edges; and 4) vessels traveling along the Sanctuary boundary should be limited to specific port access routes and shipping lanes established by the United States Coast Guard (USCG) and NOAA.

Response: The Designation Document lists vessel operations as being subject to Sanctuary regulation. However, upon designation only the operation of personal water craft is being regulated as part of the Sanctuary regime (see comment responses 18 and 19). There are no Sanctuary regulations planned at this time for the traffic regulation of other vessels. NOAA is currently working with the USCG, the primary source of vessel traffic regulation, to determine the need for additional measures to ensure protection of Sanctuary resources and qualities from vessel traffic. These consultations aim to determine which resources are most at risk, which vessel traffic practices are most threatening and which regulations or restrictions would be most appropriate to alleviate potential threats, including those, if any, from foreign vessels. Because the disposal of dredged material outside the Sanctuary (see Comment/Response (9) below) will necessitate the transport of these materials through the Sanctuary, NOAA will also work closely with the U.S. Army Corps of Engineers (COE) and U.S. Environmental Protection Agency (EPA) on such transport activities.

These ongoing consultations build upon recent Federal and State legislation (since publication of the DEIS/MP in August 1990) that further protects Sanctuary resources and qualities from vessel traffic. Specifically, the National Oil Pollution Act of 1990 establishes double hull requirements for tank vessels. Most tank vessels over 5,000 gross tons will be required to have double hulls by 2010, while vessels under 5,000 gross tons will be required to have a double hull or a double containment system by 2015. All newly constructed tankers must contain a double hull (or double containment system if under 5,000 gross tons), while existing vessels are phased out over a period of years. In addition, SB 2040, California's Oil Spill Prevention and Response Act, requires numerous prevention as well as mitigation measures aimed at protecting marine resources from oil spills particularly from tankers.

Vessel traffic separation zones off of San Francisco, implemented by the USCG, also help protect Sanctuary resources and qualities.

If it appears that regulation of vessel traffic as part of the Sanctuary regime may be necessary, NOAA will make such determination in consultation with the USCG, COE, EPA, other affected Federal and State agencies and the International Maritime Organization (IMO) through the USCG. If it is determined that such regulation is necessary, NOAA will develop the necessary regulations, also in coordination with those agencies. Coordination among agencies is intended to focus ongoing efforts to provide adequate protection to the Sanctuary and to emphasize the sensitivity of Sanctuary resources and qualities.

(4) Comment: If spills cannot be prevented entirely, a contingency plan should exist for emergency response and cleanup. To facilitate response action, NOAA should work with, and build upon, the efforts of other organizations and agencies already developing plans for the area. Response: NOAA agrees and will work with, and build upon, the efforts of others. The FEIS/MP identifies existing oil spill contingency plans and efforts in the Monterey Bay area. The Monterey Bay National Marine Sanctuary requires its own contingency plan to ensure that resources are protected during events that threaten the environment. A prototype sanctuary contingency plan is almost complete, and will be tested at the Channel Islands National Marine Sanctuary. Once implementation experience has been gained, the plan will be adapted to other sanctuary sites, including Monterey Bay.
(5) Comment: Agreements should be established between various local, regional, State, and Federal agencies to ensure adequate cleanup response. Response: Under the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR Part 300, the USCG serves as the Federal on-scene coordinator to organize all containment, removal and disposal efforts, and resources during a spill event. If a spill occurs, NOAA will take an active role, to the extent allowable, to participate, coordinate, and actively protect natural resources. During the planning phase, NOAA will work with the existing response mechanism, and will cooperate with local government, industry, organizations and interested individuals to implement a comprehensive contingency plan. A top priority for the Sanctuary Manager will be to meet with those involved with contingency planning to coordinate Sanctuary roles and responsibilities during an emergency response situation.
(6) Comment: Depositing or discharging from any location within the boundary of the Sanctuary or from beyond the boundary of the Sanctuary should be prohibited. The regulation of discharges to improve water quality is a significant concern.

Response: The regulations prohibit depositing or discharging most material and other matter from any location within the boundary of the Sanctuary, and from beyond the boundary of the Sanctuary if such matter subsequently enters the Sanctuary and injures resources or qualities.

NOAA has entered into a Memorandum of Agreement (MOA) with the State of California, EPA and the Association of Monterey Bay Area Governments regarding the Sanctuary regulations relating to water quality within State waters within the Sanctuary. With regard to permits, the MOA encompasses (i) National Pollutant Discharge Elimination System (NPDES) permits issued by the State of California under section 13377 of the California Water Code and (ii) Waste Discharge Requirements issued by the State of California under section 13263 of the California Water Code. The MOA specifies how the Sanctuary certification process for existing permits and review process for new or revised (including renewal) permits will be administered within State waters within the Sanctuary in coordination with the State permit program. The MOA also addresses integration and coordination of research and monitoring efforts and the development of a comprehensive water quality protection program for the Sanctuary.

(7) Comment: NOAA should clarify in the FEIS/MP what harbors will be excluded and why. Response: The FEIS/MP includes a specific section on harbors. Pillar Point, Santa Cruz, Moss Landing (except waters, and submerged lands thereunder, of Elkhorn Slough east of the U.S. Highway One bridge to the boundary of the Elkhorn Slough National Estuarine Research Reserve), and Monterey harbors shoreward from their respective International Collision at Sea regulation (Colreg.) demarcation lines are not part of the Sanctuary. NOAA excluded these harbor areas from the Sanctuary because they do not possess resources and qualities warranting Sanctuary protection.
(8) Comment: Dredging is essential to maintaining viable working harbors. However, because of potential degradation to the environment, dredging should be prohibited within the Sanctuary. NOAA should clearly state how regulations will affect current dredging activities in the Sanctuary. Response: Most harbor areas do not lie within the Sanctuary (see Comment/Response (7) above) and therefore are not affected by the Sanctuary dredging prohibitions. In addition, existing activities relating to the maintenance of the harbors have been exempted from Sanctuary regulation. NOAA will work closely with COE and EPA to ensure that Sanctuary resources and qualities are protected, while allowing essential dredging activities to be conducted.
(9) Comment: Ocean dumping is a threat to the marine environment and should be entirely prohibited within the Sanctuary area. NOAA should also specify whether Federally authorized dredged material disposal sites SF-12 and SF-14 will remain available for future dredging projects that would otherwise qualify for State and Federal permits.

Response: The Sanctuary regulations prohibit the designation and use of any new ocean dredged material disposal sites within the Sanctuary. The ocean disposal of dredged material is subject to stringent regulation under Title I of the MPRSA. NOAA will work closely with COE and EPA to ensure Sanctuary resources and qualities are protected from future dredged material disposal activities.

With regard to the COE dredged material disposal activities:

(a) Those activities located within the Sanctuary boundary will continue to be regulated under Section 103 of the MPRSA and Section 404 of the Clean Water Act. These activities have previously undergone intense public scrutiny and environmental oversight by EPA. Any proposed new activities at existing sites, i.e., activities not pursuant to and in compliance with an existing permit or approval, will be subject to the review process of § 944.11.

(b) Those activities located at existing sites outside the Sanctuary boundary and at the authorized disposal site that will result from the disposal site study underway on the effective date of Sanctuary designation will be regulated primarily under Section 103 of the MPRSA and Section 404 of the Clean Water Act and will not be regulated under the Sanctuary regulatory regime. Because of the intensive environmental evaluation of disposal sites and disposal activities by COE and EPA, NOAA does not anticipate that any site designated for disposal of dredged material will impact Sanctuary resources. Therefore, the Sanctuary regulatory prohibition on discharges does not apply to dredged material deposited outside the Sanctuary at existing disposal sites off of the Golden Gate (see Appendix IV to the regulations) and will not apply to dredged material deposited outside the Sanctuary at the authorized disposal site that will result from the disposal site study underway on the effective date of Sanctuary designation, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval. The future disposal site will be located within one of the Long-Term Management Strategy Ocean Study Areas described in Appendix IV. When that site is authorized, Appendix IV will be updated to incorporate its precise location. COE will coordinate closely with NOAA concerning the management of dredged material disposal activities at the new site.

(10) Comment: The regulatory regime for aquaculture and kelp harvesting activities within the Sanctuary remains unclear. Currently, aquaculture development is the responsibility of the California Department of Fish and Game (CDF&G), and because of this, aquaculture operations requiring seabed alterations should be excluded from Sanctuary regulations, and allowed to continue. Response: Neither kelp harvesting nor aquaculture is being regulated as part of the Sanctuary regime upon designation. Both activities are included in the Designation Document as activities subject to future regulation should the need arise. NOAA will coordinate with the CDF&G, which is responsible for managing kelp harvesting and aquaculture operations.
(11) Comment: The Sanctuary should include all waters in the Elkhorn Slough National Estuarine Research Reserve (ESNERR), and this relationship should be formalized. It is important to create a link between the Monterey Bay Sanctuary and the Reserve, even if this means exempting Moss Landing Harbor. An agreement should be developed between NOAA and the Moss Landing Harbor District to ensure the success of the two programs as well as coordinating the management plans and objectives of both sites.

Response: NOAA agrees it is important to coordinate closely with the ESNERR to ensure the success of both sites. The Sanctuary includes all waters, and submerged lands thereunder, in the Slough up to the ESNERR boundary. NOAA agrees that links should be fostered since missions and goals are similar. NOAA supports the exchange of information, research, education and staff expertise between the two programs. Meeting the objectives for both sites, as well as implementing the management plans, can be coordinated through the Sanctuary Advisory Committee and the ESNERR Advisory Committee. NOAA encourages Sanctuary and ESNERR staff to participate actively in this process.

However, regardless of their similarities, the two programs must remain separate because the National Estuarine Reserve Research System Program regulations prohibit the inclusion of reserves within sanctuaries (15 CFR 921.4(c)).

After consultation with the Moss Landing Harbor District, NOAA has determined the most appropriate method of linking the two sites is to exclude from the Sanctuary Moss Landing Harbor east of the Colregs. line and west of the Highway One bridge, and to include the waters of Elkhorn Slough east of the Highway One bridge to the boundary of the ESNERR with overlapping jurisdiction with the Moss Landing Harbor District over the Moss Landing Harbor.

(12) Comment: There is a need for landward protection and controls on nearshore development. Adequate protection of the ocean environment must include management of the adjacent coastal and upland zones. NOAA should extend its jurisdiction to include beaches, dunes, uplands, and wetland habitats adjacent to the proposed Sanctuary. Response: NOAA agrees that protection and management of the land portion of the coastal zone is necessary for adequate protection of the ocean environment. NOAA will coordinate with existing coastal management authorities, such as COE, EPA, the California Coastal Commission, State Water Resources and Regional Water Quality Control Boards and State Lands Commission, regarding potential land- and water-based threats and impacts to the Sanctuary. The physical boundary of this sanctuary encompasses ocean and coastal waters up to the mean high-water line. NOAA intends to protect the Sanctuary from the impacts of coastal development via its regulation of discharges or deposits from beyond the boundary of the Sanctuary that subsequently enter the Sanctuary and injure a Sanctuary resource or quality.
(13) Comment: NOAA should clarify whether it will limit the amount of silt in the sand used for beach nourishment. Even though the sand may be placed above the high tide mark, erosion may move silt into the Bay. Response: NOAA will work with COE, EPA and other appropriate authorities to determine the impacts of beach nourishment programs. If it should appear that a particular project would injure Sanctuary resources or qualities, NOAA may impose terms and conditions pursuant to 15 CFR 944.10 and 944.11.
(14) Comment: Protection of historical and cultural resources within the Sanctuary is a significant concern. NOAA should prohibit moving, injuring, or possessing historical resources within the Sanctuary. However, Sanctuary regulations should not apply to activities permitted by the State within State waters under the Shipwreck and Historic Maritime Resources Program.

Response: NOAA agrees that it is necessary to protect and manage historical and cultural resources within the Sanctuary boundary. The regulations include a prohibition on moving, removing, possessing or injuring, or attempting to move, remove or injure these resources.

The Abandoned Shipwreck Act of 1987 gives States the title to certain abandoned shipwrecks in State waters. Under the MPRSA, the Sanctuaries and Reserves Division, NOAA, has managerial responsibilities for abandoned shipwrecks within National Marine Sanctuaries, including those located in State waters, for the purpose of protecting them. NOAA will coordinate with State agencies to ensure that historical and cultural resources, as well as living marine resources, within the Sanctuary are protected.

(15) Comment: The prohibition on the taking of marine mammals and seabirds within the Sanctuary is redundant with the Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA) and the Migratory Bird Treaty Act (MBTA).

Response: While marine mammals, migratory seabirds and endangered species are protected under these acts, NOAA believes that the higher penalties afforded under the MPRSA will provide a stronger deterrent.

The MBTA sets maximum criminal fines at either $500 or $2,000 per violation, depending on the violation. The MMPA sets maximum civil penalties at $10,000 and maximum criminal fines at $20,000. The ESA sets maximum civil penalties at $500, $12,000 or $25,000 per violation, depending on the violation; maximum criminal fines are set at $50,000. (All three statutes also provide for imprisonment for criminal violations.)

The MPRSA (under §307) allows NOAA to assess civil penalties as high as $50,000 for each violation. In addition, monies collected under the MPRSA are available to enhance the National Marine Sanctuary Program.

(16) Comment: Many commenters stated fishing should not be prohibited within the Sanctuary. Instead, fisheries resource regulation should remain under the jurisdiction of the State of California, the National Marine Fisheries Service (NMFS) and the Pacific Fisheries Management Council (PFMC). Other commenters requested NOAA to regulate harmful fishing activities such as gill-netting and shark finning. NOAA's position should be clarified in the FEIS/MP.

Response: Fishing is not being regulated as part of the Sanctuary regime and is not included in the Designation Document as an activity subject to future regulation. Fisheries management will remain under the existing jurisdiction of the State of California, NMFS and PFMC. Sanctuary prohibitions that may indirectly affect fishing activities have been written to explicitly exempt aquaculture, kelp harvesting and traditional fishing activities.

Existing fishery management agencies are primarily concerned with the regulation and management of fish stocks for a healthy fishery. In contrast, the sanctuary program has a different and broader mandate under the MPRSA to protect all sanctuary resources on an ecosystem wide basis. Thus, while fishery agencies may be concerned about certain fishing efforts and techniques in relation to fish stock abundance and distribution the Sanctuary program is also concerned about the potential incidental impacts of specific fishery technique on all sanctuary resources including benthic habitats or marine mammals as well as the role the target species plays in the health of the ecosystem. In the case of the Monterey Bay area fish resources are already extensively managed by existing authorities.

Should problems arise in the in the future NOAA would consult with the State, PFMC and NMFS as well as the industry to determine an appropriate course of action.

(17) Comment: Many commenters requested NOAA to prohibit motorized aircraft from flying over the Sanctuary. Other commenters stated Federal Aviation Regulations (FARs) already adequately protect Sanctuary resources from aircraft impacts, making additional regulations unnecessary. In addition, new regulations may hinder cooperative emergency response plans, routine helicopter operations, and rescue attempts.

Response: The regulations prohibit flying motorized aircraft at less than 1,000 feet above the Sanctuary within four zones. Generally, these zones are from Point Santa Cruz north, Carmel Bay south (overlapping the California Sea Otter Game Refuge), and around Moss Landing and Elkhorn Slough (see Appendix II for specific zones).

NOAA recognizes that overflights are regulated under the FARs. Unlike the FARs, however, Sanctuary overflight regulations are intended to protect the living marine resources of the Sanctuary from disturbance by low-flying aircraft and in this case require flying at higher altitudes than normally required by the FARs. The prohibition does not apply to overflights that: 1) are necessary to respond to an emergency threatening life, property or the environment; 2) are necessary for valid law enforcement purposes; or 3) conducted by the Department of Defense and specifically exempted by NOAA after consultation with that Department.

(18) Comment: A more precise definition of "thrill craft" is needed

Response: NOAA has changed the term "thrill craft" in the proposed regulations to "motorized personal water craft" (MPWC) in the final regulations and revised the definition to include vessels up to fifteen feet. This category of vessel was selected because of the threat posed to Sanctuary resources by their operation.

(19) Comment: Thrill craft should be prohibited throughout the Sanctuary. The danger these craft pose to the biological resources of the area, such as marine mammals and kelp beds, as well as other users of the area such as divers and surfers necessitates a prohibition or regulation of personal water craft. In addition, MPWC should be prohibited in "areas of biological significance," including those with high human-use levels such as beaches; diving, swimming and surfing areas; state parks; and reserves. Beside the potential danger to recreationists, MPWC disrupt low-intensity area uses. In addition, many commenters found the operation of MPWC to be incompatible with the existence of the Sanctuary for reasons unquantifiable.

Response: NOAA recognizes the threat posed by MPWC operation to the conservational, recreational, ecological and esthetic resources and qualities of the Sanctuary. As a result, the regulations have been revised to prohibit the operation of MPWC within the Sanctuary, except within four zones and access routes (15 CFR 944.5(a)(8)). Generally, these areas are located off the harbors of Pillar Point, Santa Cruz, Moss Landing, and Monterey. They were chosen to avoid injury to kelp beds, sea otters and other marine mammals, seabirds and other marine life and to minimize conflicts with other recreational users and because these areas are accessible from launch areas and encompass areas traditionally used by MPWC. Restriction of MPWC operation to these areas of the Sanctuary will also reduce esthetic disturbance.

A prohibition of MPWC operation in the Sanctuary except in the four areas is designed to increase resource protection while still allowing opportunities for this form of recreation in the Sanctuary. There has been at least one reported collision in the Monterey Bay area between a jet ski and sea otters. Collisions with and other disturbance of marine mammals elsewhere from MPWC have also occurred. The small size, maneuverability and high speed of these craft is what causes these craft to pose a threat to resources. Resources such as sea otters and seabirds are either unable to avoid these craft or are frequently alarmed enough to significantly modify their behavior such as cessation of feeding or abandonment of young. Also other, more benign, uses of the Sanctuary such as sailing, kayaking, surfing and diving are interfered with during the operation of MPWC. Further, as indicated above, restriction of operation of MPWC to the specified zones and access routes will reduce esthetic disturbance. The zones and access routes where the MPWC can still operate allow the MPWC operators to continue this form of recreation albeit in areas away from those other forms of recreation and beyond those areas inhabited by marine mammals and seabirds and other sensitive marine life. By establishing defined MPWC operating areas, this approach provides for more effective enforcement to protect sensitive marine life and for less confusion to MPWC operators and other recreationists than would the establishment of minimum approach distances governing approaches by MPWC to sensitive marine life or other recreational users. NOAA intends to install buoys to mark the boundaries of the MPWC operating areas.

(20) Comment: NOAA should choose DEIS/MP management plan alternative 2, which proposes that full-time staffing be implemented immediately after designation. The Sanctuary is important, and the commitment of a full-time and immediate staff is necessary to initiate Sanctuary programs. Response: NOAA's preferred management plan is a variation of alternative 2. This plan would establish the Sanctuary headquarters soon after designation and immediately provide full-time staffing of approximately five personnel to ensure that the Sanctuary program is implemented quickly and efficiently. NOAA's preferred management plan will build upon public support from the designation process and will increase opportunities for interpretation and research programs soon after designation. Additional staff and satellite facilities will be phased in after designation.
(21) Comment: NOAA should clearly identify how the Sanctuary Advisory Committee (SAC) will be set up, who will be on it, and how it will function Response: One of the Sanctuary Manager's first priorities will be to create the SAC according to the process and guidelines of the Federal Advisory Committee Act (FACA). See Appendix A of the FEIS/MP. It is NOAA's goal to have wide representation on the SAC, and the Manager will consider the comments of all interested parties. NOAA will draft a charter, make membership recommendations, which will include appropriate governmental and non-governmental representatives, to the Secretary of Commerce, and coordinate with the General Services Administration's review of the SAC formation and accomplishments. The SAC will function strictly in an advisory capacity. Once the Sanctuary Manager is selected, terms of office, committee composition and function will be defined in accordance with FACA
(22) Comment: NOAA should clarify the relationship between Department of Defense (DOD) national defense exemptions from prohibited activities and oil and gas activities. Response: The Minerals Management Service (MMS) in the Department of the Interior (DOI) is responsible for hydrocarbon development lease sales in Federal waters, not DOD. While the Sanctuary regulations allow DOD to conduct certain prohibited activities, they do not allow DOD to conduct any oil, gas or mineral activity in the Sanctuary.

Appendix

Appendix B Table of Contents

B. Proposed Notice of Designation and Final Rule Making
  I: Background
  II: Designation Document
  III: Summary of Final Management Plan
  IV: Summary of Regulations
  V. Miscellaneous Rulemaking Requirements

 

URL: http://montereybay.noaa.gov/intro/mp/archive/original_eis/appendixB_sI.html    Reviewed: March 05, 2014
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