Part I: INTRODUCTION

I. Introduction

The National Marine Sanctuary Program

The National Marine Sanctuaries Act (NMSA), 16 U.S.C. § 1431 et seq., authorizes the Secretary of Commerce to designate areas of the marine environment of special national, and in some instances international, significance as National Marine Sanctuaries due to their conservation, recreational, ecological, historical, research, educational, or aesthetic resources and qualities.

Consistent with the mission of developing a system of National Marine Sanctuaries for the long-term conservation and management of their resources, and for the present and future benefit and enjoyment of these areas by the public, the following purposes and policies are established by the NMSA:

to identify and designate as national marine sanctuaries areas of the marine environment which are of special national and sometimes international significance;
to provide authority for comprehensive and coordinated conservation and management of these marine areas, and the activities affecting them, in a manner which complements existing regulatory authorities;
to support, promote, and coordinate scientific research on, and monitoring of, the resources of these marine areas, especially long-term monitoring of these areas;
to enhance public awareness, understanding, appreciation, and wise use of the marine environment;
to facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities;
to 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 these marine areas;
to create models of, and incentives for, ways to conserve and manage these areas;
to cooperate with global programs encouraging conservation of marine resources; and
to maintain, restore, and enhance living resources by providing places for species that depend upon these marine areas to survive and propagate.

Fourteen National Marine Sanctuaries have been designated since the Program's inception in 1972 (Figure 1):

Figure 1: National Marine Sanctuary Program Sites

The Monitor National Marine Sanctuary serves to protect the wreck of the Civil War ironclad, USS Monitor. The circular site (diameter of 1 nautical mile) was designated in January 1975, and is located 16 miles southeast of Cape Hatteras, North Carolina.
The Channel Islands National Marine Sanctuary, designated in September 1980, encompasses 1,252 square nautical miles of offshore, nearshore, and intertidal habitats roughly 20 nautical miles offshore of Santa Barbara, California. The waters of the sanctuary support breeding habitat for five species of seals and sea lions and thousands of seabirds. Over 20 additional species of whales and dolphins occur in the sanctuary. Large nearshore forests of giant kelp provide a nutrient rich environment for teeming populations of fish and invertebrates. Several endangered species inhabit the sanctuary including the gray, blue, humpback, and sei whales, southern sea otters, Guadeloupe fur seals, California brown pelicans, and California least terns. The ocean floor contains a wealth of prehistoric artifacts from the Chumash Indians and the remains of over 100 historic shipwrecks.
The Gray's Reef National Marine Sanctuary, designated in January 1981, is a submerged live bottom coral reef located in 50-70 feet of water on the South Atlantic continental shelf 17.5 nautical miles east of Sapelo Island, Georgia. The Sanctuary encompasses 17 square nautical miles. Gray's reef consists of limestone outcroppings and ledges up to six feet in height which support a host of sessile invertebrates. It is recognized as a highly productive and unusual habitat for a wide variety of species including corals, tropical fish, and sea turtles.
The Gulf of the Farallones National Marine Sanctuary, designated in January 1981, encompasses 948 square nautical miles off the California coast north of San Francisco. It provides a habitat for a diverse array of marine mammals, including California's largest breeding population of harbor seals, along with California sea lions and elephant seals. Several species of whales and dolphins live in or migrate through the sanctuary. The Farallon Islands are home to one of the largest concentrations of breeding marine birds in the continental United States. Nurseries and spawning grounds for commercially valuable species of fish such as Dungeness crab, Pacific herring, and rockfish are within the sanctuary.
The Fagatele Bay National Marine Sanctuary in American Samoa was designated in August 1986. This 0.28 square nautical mile sanctuary surrounding an eroded volcano crater on the island of Tutuila, contains deepwater coral terrace formations that are unique to the high islands of the tropical Pacific. It serves as habitat for a diverse array of marine flora and fauna including the endangered hawksbill sea turtle and the threatened green sea turtle.
The Cordell Bank National Marine Sanctuary, designated in May 1989, encompasses 397 square nautical miles off the central California coast, contiguous with the northern boundary of the Gulf of the Farallones National Marine Sanctuary. Due to a rare combination of oceanic conditions and undersea topography, in a discrete well-defined area, Cordell Bank and its surrounding waters provide a highly productive marine environment for a rich variety of benthic organisms as well as fish, marine mammals, and seabirds.
The Florida Keys National Marine Sanctuary was Congressionally designated on November 16, 1990, by the Florida Keys National Marine Sanctuary and Protection Act (P.L. 101-605). The Act designated an area of coastal waters off the Florida Keys encompassing approximately 2,800 square nautical miles. This area includes the world's third largest barrier reef. The primary purpose of the designation is to protect Florida's coral reefs, one of the most diverse ecosystems in the world, from harmful activities such as vessel groundings and pollution. The Key Largo and Looe Key National Marine Sanctuaries, designated in 1975 and 1981, respectively, have been incorporated into the Florida Keys National Marine Sanctuary as existing management areas.
The Flower Garden Banks National Marine Sanctuary was designated in November 1991. The Sanctuary is partitioned into the East and West Flower Garden Bank. The East Flower Garden Bank component, encompassing 19.2 square nautical miles of ocean waters and submerged lands, is located approximately 120 nautical miles south southwest of Cameron, Louisiana. The West Flower Garden Bank, encompassing 22.5 square nautical miles of ocean waters and submerged lands, is located 110 miles southeast of Galveston, Texas. This site represents a complex, biologically productive reef community noted for outstanding fragile coral development and the only known oceanic brine seep on the continental shelf of the Atlantic Ocean. The banks lie on the extreme northern edge of the zone in which extensive reef development can occur.
The Monterey Bay National Marine Sanctuary was designated in September 1992. The Sanctuary encompasses an area of approximately 4,024 square nautical miles off the central California coast, between San Francisco and Cambria. Monterey Bay lies in the center of the Sanctuary and is California's second largest bay and one of the few major bays along the entire Pacific Coast. The bay's most significant feature is the Monterey Canyon, the deepest and largest submarine canyon incising the continental shelf of North America. The nutrient-rich waters of the Sanctuary support extensive fish, invertebrate, seabird, and marine mammal populations. The area supports several endangered and threatened species of marine mammals such as the California sea otter. The world's entire population of ashy storm-petrels feed above the Monterey Canyon during summer and fall months.
Stellwagen Bank National Marine Sanctuary was Congressionally designated in November 1992 (P.L. 102-587). The Sanctuary encompasses 638 square nautical miles of Federal waters situated on and around the submerged Stellwagen Bank located 6.3 nautical miles north of Cape Cod, Massachusetts. The Bank supports a seasonal abundance of several cetacean species, including the largest high-latitude population of humpback whales in the contiguous United States. Biologically productive Sanctuary waters also provide important feeding and nursery grounds for fin, minke, and northern right whales and several smaller cetacean species. Commercially and recreationally fished since colonial times, the Bank also supports a growing whalewatch industry.
The Hawaiian Islands Humpback Whale National Marine Sanctuary was Congressionally designated in November 1992, pursuant to the Hawaiian Islands National Marine Sanctuary Act (Subtitle C, Title II of P.L. 102-587). The primary purposes of the Sanctuary are to protect humpback whales and their habitat, and to provide for the identification of marine resources and ecosystems of national significance for possible inclusion in the Sanctuary. Other resources inhabiting the waters of Hawaii include several additional cetacean species (sperm, pilot, false killer, pygmy killer, melon headed, Pacific bottlenose dolphins, and many others), a majority of the Hawaiian population of juvenile and adult green sea turtles, the endangered leatherback and olive ridley sea turtles, and the highly endangered Hawaiian monk seal. There are a number of seabird colonies in Hawaii as well. Hawaii also supports an extensive coral reef ecosystem and commercially valuable fisheries.
Olympic Coast National Marine Sanctuary was designated in July 1994. The Sanctuary encompasses 2,560 square nautical miles of Federal and State waters offshore of the Olympic Peninsula of Washington. The site encompasses a wide range of habitats from high energy rocky coasts and sand beaches to sea stacks to open water over a broad, shallow continental shelf. The seabird colonies of the outer coast are among the largest in the continental United States. Twenty-nine species of marine mammals breed, rest, or migrate through the Sanctuary, including a re-introduced population of the endangered sea otter. Significant historical and cultural resources in or near the Sanctuary include Native American villages and artifacts, ancient canoe runs, petroglyphs, and numerous shipwrecks. The commercial uses of the Sanctuary include vessel traffic and important subsistence, commercial, and recreational fishing.

Monterey Bay National Marine Sanctuary

In recognition of the national significance of the unique marine environment centered around Monterey Bay, California, the Monterey Bay National Marine Sanctuary (MBNMS or Sanctuary) was designated on September 18, 1992 (Figure 2). SRD issued final regulations, effective January 1, 1993, to implement the Sanctuary designation (15 C.F.R. Part 922, Subpart M; see Appendix A).

The MBNMS regulations at 15 C.F.R. § 922.132(a) prohibit a relatively narrow range of activities to protect Sanctuary resources and qualities, including oil, gas and mineral activities; take of marine mammals, seabirds, or sea turtles; discharge or deposit of materials; removal of a Sanctuary historical resource; alteration of the seabed; overflights in certain areas of the Sanctuary; operation of motorized personal watercraft in parts of the Sanctuary; and attraction of white sharks in certain areas of the Sanctuary.

The Final Environmental Impact Statement/Management Plan (FEIS/MP) for the MBNMS was issued in June 1992. This Final Supplemental Environmental Impact Statement/Management Plan (FSEIS/MP) prepared for the change to the regulations and Designation Document supplements the FEIS/MP but contains sufficient information to be used as a stand-alone document.

History of the Jade Collection Issue

The region within the Sanctuary known as the Jade Cove area (Figure 3) consists of a series of small coves located south of Big Sur, near Gorda, California. Jade occurs in veins in the serpentine bedrock formation, extending from inland mountains, down the cliffs and into the seabed.

The coastal area is very dynamic, subject to strong waves and tides, which erode the veins and sometimes free the jade. Jade is found primarily as pebbles or larger stones on the shore and seabed, and as revealed deposits on the seafloor.

For a number of years prior to the designation of the MBNMS, tourists and local residents routinely visited the Jade Cove area to explore for and collect pieces of the naturally occurring jade. Collecting primarily consisted of searching for and taking small, loose pebbles from the shore. However, underwater collecting of jade also occurred. The size of jade

Figure 2: MBNMS boundaries and adjacent areas

Figure 3: Jade Cove area of the MBNMS (Adapted from Crippen, 1951)(Not to scale) pieces collected ranged from small pebbles to boulders as large as 9,000 pounds extracted from the seabed by the use of chisels, lift bags, and other tools.

The regulations implementing the MBNMS designation prohibit exploring for, developing or producing oil, gas or minerals within the Sanctuary (15 C.F.R. § 922.132(a)(1)). Further, the regulations and Designation Document for the Sanctuary prohibit the Secretary of Commerce, Director of the Office of Ocean and Coastal Resource Management, or any designee from issuing a permit or otherwise approving such activities within the Sanctuary (15 C.F.R. § 922.132(f)); Designation Document, Article V). Therefore, exploring for, developing or producing oil, gas or minerals is absolutely prohibited within the Sanctuary. Mineral is defined as "clay, stone, sand, gravel, metalliferous ore, non-metalliferous ore, or any other solid material or other matter of commercial value" (15 C.F.R. § 922.3). Consequently, the prohibition encompasses collection of jade from the Jade Cove area.

In late 1993 NOAA was asked by a user coalition to allow the "continued" collection of jade from the Jade Cove area. After a site visit and collection of pertinent information, NOAA decided to maintain the regulation. The main factors for the decision were:

Jade is a Sanctuary resource, which NOAA has a statutory responsibility to protect.
Under California State laws, extraction of jade from Jade Cove without a permit was trespassing on State land and theft of State property. Maintaining the regulation was consistent with State laws and with Los Padres National Forest regulations prohibiting mineral extraction without a lease.

The user coalition subsequently contacted the Sanctuary Advisory Council (Council), and asked for Council support for "continued" jade collection. The Council created a jade working group to investigate the issue and provide recommendations. Information was presented to the Council by a geologist from the U.S. Geological Survey supporting that the jade veins appear to be plentiful. The Council ultimately sent a recommendation to NOAA, asking that NOAA find a way to allow small-scale recreational, educational, and artisan collection of jade to continue.

NOAA published an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register on August 9, 1995. The ANPR announced that NOAA was considering changing the subject regulation to allow limited, small scale collection of loose jade pieces in a manner that would not degrade the jade resource, nor injure other Sanctuary resources, and sought advice, recommendations, and information about this issue. About 195 comments were received, with over 90% of them coming from individuals. About 88% supported jade collection with no restrictions; however, the vast majority of these letters were copied from a newsletter that contained significant misinformation about the issue. The newsletter erroneously asserted that no restrictions exist on jade collection and that NOAA's current action was to impose restrictions. Another 9% of the commenters supported provisions similar to those in the preferred alternative and the remaining 3% believed that no jade collection should be allowed.

NOAA issued a proposed rule on June 13, 1997 (62 FR 32320), to inform the public of NOAA's proposed course of action and to invite comments from interested parties. The comment period closed August 12, 1997, with 246 written comments received. A public hearing was held on July 30, 1997, with eight oral comments received. All the comments were supportive of the proposed rule; of these, 96% were from individuals, 3% from organizations, and 1% from other government agencies.

Purpose and Need of This FSEIS/MP

Article V of the MBNMS Designation Document prohibits the Secretary of Commerce from issuing a permit or otherwise approving the exploration, development, or production of oil, gas, or minerals within the Sanctuary. Consequently, any change to the prohibition against exploration for, development of or production of oil, gas, or minerals to allow jade collection would constitute a change of a term of designation. Pursuant to section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)), changing a term of designation requires SRD to follow the same procedures by which the original designation was made, including preparation of an Environmental Impact Statement/Management Plan, consultation with the State, convening at least one public hearing, and allowing for gubernatorial non-objection to the proposal as it pertains to State waters within the Sanctuary. Consequently, for this proposed action, NOAA prepared a DSEIS/MP on its proposal to amend the Designation Document and regulations to allow jade collecting in the Sanctuary. This FSEIS/MP takes into account and responds to comments on the DSEIS/MP (see Appendix C).

This FSEIS/MP has been developed pursuant to section 304(a)(2) of the NMSA, 16 U.S.C. 1434(a)(2), consistent with, and in fulfillment of, the requirements of the National Environmental Policy Act of 1969, and regulations thereunder.

Consultations

Resource Assessment Report

Section 303(b)(3) of the NMSA requires preparation of a resource assessment report documenting present and potential uses of the area; here the Jade Cove area. Consultation with the Department of Defense (DOD), Department of the Interior (DOI), Department of Energy (DOE), Department of Transportation (DOT), and the Environmental Protection Agency (EPA) is conducted. A comprehensive resource assessment was prepared during the original Sanctuary designation and is contained in Part II of the FEIS/MP for the Sanctuary. However, DOD, DOE, DOI, DOT, and EPA were consulted once again for the purposes of this document. DOD, DOE, and DOT did not provide any comments during the consultation or on the DSEIS/MP. DOI commented during the consultation (summarized in the DSEIS/MP), but not on the DSEIS. EPA commented during the consultation (summarized in the DSEIS/MP) and filed a "lack of objection" to the DSEIS. The EPA also made a number of suggestions, including that NOAA undertake a determination of how much jade is left in the Jade Cove area, institute a reporting requirement for anyone who removes jade from the Jade Cove area, and consider seasonal closures of jade collection activities.

Endangered Species Act (ESA)

Pursuant to Section 7 of the ESA, the U.S. Fish and Wildlife Service (USFWS), DOI was consulted and determined that a formal consultation is not necessary for this action, as it would not adversely affect endangered or threatened species currently under the jurisdiction of USFWS. The National Marine Fisheries Service (NMFS) of the Department of Commerce was consulted and determined that a formal consultation is not necessary for this action as it would not adversely affect any listed or proposed species or critical habitat currently under the jurisdiction of NMFS.

Federal Consistency Determination

Section 307 of the Coastal Zone Management Act of 1972, as amended, requires that each Federal Agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved state management programs. The California Coastal Commission (CCC) had previously determined that the designation of the MBNMS was consistent, to the maximum extent practicable, with the State's Coastal Management Plan. CCC concurred with NOAA's determination that NOAA's preferred alternative will not affect the coastal zone.

State Agencies

Upon finalizing an exception to the MBNMS regulations to allow small scale jade collection, a State permit will still be required to authorize jade collection under State law. The California State Lands Commission (SLC) was consulted before the SEIS/MP was released. SLC indicated that, if NOAA proceeds with its proposed regulatory change, it would consider proposing regulations which provide for a recreational collection permit. During consultation with SLC during preparation of this FSEIS, the SLC stated that its position remained unchanged (teleconference with Peter Pelkofer, SLC Senior Counsel, August, 1997).

The Governor of California has also been notified of SRD's proposed action. Under the NMSA, the Governor will have 45 days continuous session of Congress to object to the proposed amendment to allow limited, small-scale jade collection in the Sanctuary. Should the Governor object to the amendment, it shall not take effect and the original prohibition will remain.