PART
III: ALTERNATIVES, INCLUDING THE PREFERRED ALTERNATIVE
II.
Section: Regulatory Alternatives
II. Section: Regulatory Alternatives
A. Introduction [Part III TOC]
Regulatory alternatives governing different types of potential or current uses of the Sanctuary (oil, gas and mineral activities; discharges and deposits; moving, removing or injury of historical resources; alteration of or construction on the seabed; taking of marine mammals, turtles and seabirds; overflights; "personal water craft"; vessel traffic; fishing; kelp harvesting; and aquaculture) were evaluated in terms of need and effectiveness for resource protection.
In formulating the proposed Sanctuary regulatory regime, NOAA first, analyzed the resources and human uses of the Monterey Bay environment; second, analyzed the existing regulatory regime with regard to protection of the resources and qualities of the Monterey Bay area from possible harmful human activities; third, proposed alternative regulatory regimes, including relying on the existing regulatory regime, to protect the proposed Sanctuary's resources and qualities; fourth, analyzed the environmental consequences of each regulatory alternative, including no additional action with Sanctuary designation, to the resources and qualities of the Monterey Bay area; and fifth, proposed regulations based on the preferred course of action, the one deemed necessary to protect Sanctuary resources and qualities.
The choice of proposed regulations was based on the environmental consequences of each action and the constraints set by the MPRSA, which states in Section 304(c):
(1) Nothing in this title shall be construed as terminating or granting to the Secretary the right to terminate any valid lease, permit, license, or right of subsistence use or of access if the lease, permit, license, or right -(A) was in existence on the date of enactment of the Marine Sanctuaries Amendments of 1984, with respect to any national marine sanctuary designated before that date; orB) is in existence on the date of designation of any national marine sanctuary, with respect to any national marine sanctuary designated after the date of enactment of the Marine Sanctuaries Amendments of 1984.
(2)The exercise of a lease, permit, license, or right is subject to regulation by the Secretary consistent with the purposes for which the sanctuary is designated.
The prohibitions set forth in the proposed Sanctuary regulations would not apply to (see the regulations themselves for the exact provisions):
1) Any activity authorized by any valid lease, permit, license, approval, or other authorization in existence on the effective date of Sanctuary designation and issued by any Federal, State of local authority of competent jurisdiction, or by any valid right of subsistence use or access in existence on the effective date of Sanctuary designation, provided that the holder of such authorization or right complies with Sanctuary regulations regarding the certification of such authorizations and rights (e.g., notifies the Secretary or designee of the existence of, requests certification of, and provides requested information regarding such authorization or right) and complies with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification by the Secretary or designee as he or she deems necessary to achieve the purposes for which the Sanctuary was designated.Pending final agency action on the certification request, such holder may exercise such authorization or right without being in violation of any prohibitions set forth in the Sanctuary regulations, provided the holder is in compliance with Sanctuary regulations regarding certifications.
The National Oceanic and Atmospheric Administration (NOAA) has entered into a Memorandum of Agreement (MOA) with the State of California, the U.S. Environmental Protection Agency and the Association of Monterey Bay Area Governments regarding the regulations on water quality within State waters within the Sanctuary (See Appendix G). With regard to permits, the MOA encompasses the following:
(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 certification process of this section will be administered within State waters within the Sanctuary in coordination with the State permit program.
2) Any activity authorized by any valid lease, permit, license, approval or other authorization issued after the effective date of Sanctuary designation by any Federal, State or local authority of competent jurisdiction, provided that the applicant complies with Sanctuary regulations regarding notification and review of applications (e.g., notifies the Secretary or designee of the application for such authorization and provides requested information regarding the application), the Secretary or designee notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Secretary or designee deems necessary to protect Sanctuary resources and qualities. Amendments, renewals and extensions of authorizations in existence on the effective date of Sanctuary designation constitute authorizations issued after the effective date.
The authority granted the Director to object to or impose terms or conditions on the exercise of any valid lease, permit, license, approval or other authorization issued after the effective date of Sanctuary designation may not be delegated or otherwise assigned to other Federal officials below his or her level.
NOAA has entered into a Memorandum of Agreement (MOA) with the State of California, the U.S. Environmental Protection Agency and the Association of Monterey Bay Area Governments regarding the regulations on water quality within State waters within the Sanctuary. With regard to permits, the MOA encompasses the following: (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 process of this section will be administered within State waters within the Sanctuary in coordination with the State permit program.
3) Any activity conducted in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued by the Secretary or his or her designate in accordance with the Sanctuary regulations. Such permits may only be issued if the Secretary or designee finds that the activity for which the permit is applied will have only negligible, short-term adverse effects on Sanctuary resources and qualities and will: further research related to Sanctuary resources; further the educational, natural or historical resource value of the Sanctuary; further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; assist in managing the Sanctuary; or further salvage or recovery operations in connection with an abandoned shipwreck in the Sanctuary title to which is held by the State of California.
4) Any activity conducted in accordance with the scope, purpose, terms, and conditions of a Special Use permit issued by the Secretary or designee in accordance with Sec. 310 of the Act. When the preferred Sanctuary action is to rely on the status quo to govern the activity either by including the activity in the scope of regulations but not regulating with designation (i.e. kelp harvesting, aquaculture and vessel traffic), or by excluding the activity from the scope of regulations entirely, the activity would continue to be subject to regulations of other authorities.
5) Any activity necessary to respond to emergencies threatening life, property or the environment.
6) With regard to Department of Defense activities: All Department of Defense activities shall be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. The prohibitions in paragraphs (a)(2)-(9) of section 944.5 of the regulations do not apply to existing military activities carried out by the Department of Defense ,as specifically identified in this Final Environmental Impact Statement and Management Plan for the Proposed Monterey Bay National Marine Sanctuary. New activities may be exempted from the prohibitions in paragraphs (a)(2)-(9) of that section by the Director of the Office of Ocean and Coastal Resource Management or designee after consultation between the Director or designee and the Department of Defense.
Notwithstanding the above in no event under the proposed Sanctuary regulations would the Secretary or designee be allowed to issue a permit authorizing, or otherwise approve, (1) the exploration for, development or production of oil, gas or minerals within the Sanctuary, (2) the discharge of primary-treated sewage within the Sanctuary (except for certification, pursuant to section 944.10 of valid authorizations in existence on the effective date of Sanctuary designation and issued by other authorities of competent jurisdiction), or (3) the disposal of dredge material within the Sanctuary other than at sites existing on the effective date of designation. Any purported authorizations issued by other authorities after the effective date of Sanctuary designation for any of these activities within the Sanctuary would be invalid.
Each type of activity proposed to be regulated by the Sanctuary is stated below and described in terms of its impact to resources and uses. The status quo is also given in terms of existing laws, regulations and their impacts to the resources and uses of the Monterey Bay area. Table 24a & 24b summarizes these potential impacts in comparative form.
B. Oil, Gas and Mineral Activities [Part III TOC]
1. Status Quo [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
Under this alternative the resource protection regime would rely on the Department of the Interior's Outer Continental Shelf (OCS) Natural Gas and Oil Comprehensive Program 1992-1997, and existing Federal statutes to provide protection to the Sanctuary's resources.
Department of the Interior, MMS, final rule for oil and gas and sulphur operations in the OCS (30 CFR Parts 250 and 256) provides the regulatory regime for more performance standards and new and updated requirements for operational and environmental safety. The Director of MMS shall require " on all new drilling and production operations and, wherever practicable, on existing operations, the use of the Best Available and Safest Technologies, which the Director determines to be economically feasible, where ever failure of equipment would have a significant effect on safety, health, or the environment, except where the Director determines that the incremental benefits are clearly insufficient to justify the incremental costs of utilizing such technologies." (30 CFR 250.22). Numerous regulations exist to help prevent blowouts during the different phases of oil and gas activities and which require adequately trained personnel during OCS operations.
Environmental review and the opportunity for public comment take place prior to any hydrocarbon production under the provisions of the Outer Continental Shelf Lands Act and the National Environmental Policy Act. In addition, all lease sale activities in the OCS would require consistency with the State of California Coastal Zone Management Plan. Oil, gas and mineral leasing, including but not limited to sand mining, in State waters would have to undergo a similar process involving State environmental review under the California Environmental Quality Act (CEQA). ((Appendix C provides more information about many of these authorities).
b. Impact to Resources [Part III TOC]
Future Lease Sale Plans in the central California Planning area and associated development may occur close to shore, near sensitive haul-out areas and in highly productive marine waters that are all part of the Monterey Bay area ecosystem. The nationally recognized, sensitive marine resources of the Monterey Bay area, however, warrant more comprehensive, long-term protection from adverse environmental effects of oil spills, discharges and noise and visual disturbance.
For example, a group of Año Nuevo Basin tracts off San Mateo County, approximately 10 nautical miles due west of Año Nuevo, was scheduled to be included in MMS's Lease Sale #119 and are known to be of high oil and gas resource potential (Mullins and Nagel, 1982) (Figure 17). Due to the unique nature and environmental sensitivity of areas such as those off of Año Nuevo it seems additional safeguards are necessary to protect the proposed Sanctuary's resources and qualities. Presently, no administrative mechanism exists to permanently set aside such an important area. For each sale, all tracts not already leased are reconsidered.
A recent NAS study (NAS, The Adequacy of Environmental Information for Continental Shelf Oil and Gas Decisions: Florida and California, 1989) as well as past EPA (1983) and NAS (1985) studies have all examined whether there is adequate information available to determine the effects of oil and gas activities on the marine environment. Although many uncertainties still exist, experience from recent oil spills shows massive destruction to all levels of the marine environment from coating of rocks and subsequent loss of encrusting organisms, to fouling of birds, pinnipeds and sea otters resulting in loss of thermoregulatory ability, poisoning from ingestion and death.
c. Impact to Uses [Part III TOC]
Development of the Central California OCS for oil and gas resources would introduce a number of offshore platforms into the area for the first time. Associated with this direct development would be numerous indirect increases in human activities such as increase in vessel traffic, either servicing the platforms or transporting oil (unless pipelines are used to offload the discovered resources), increases in overflights from helicopters, increasing levels of discharges, and increased urban development. It is possible for this potential development to have a negative impact on fishing in the area and on recreational and tourist activities.
2. Sanctuary Alternative 1 [Part III TOC]
a. Sanctuary Action [Part III TOC]
Under this alternative, a regulation could be promulgated prohibiting oil, gas and mineral activities within discrete areas in the Sanctuary. These areas could include, but are not limited to, geographical zones around Areas of Special Biological Significance, State Reserves, beaches, parks or other marine areas and habitats that are especially fragile and vulnerable to the effects of oil and gas activities. In addition, hydrocarbon activities may be restricted and only permitted if executed with discharge and/or monitoring requirements. The monitoring requirement would be similar to the following:
Within specified areas of the Sanctuary the operator (lessee) is required to submit a monitoring plan to assess the effects of oil and gas exploration, development and operations on the biotic communities and historical resources of the Sanctuary. Monitoring investigations are to be conducted by qualified, independent scientific personnel, these personnel and all required equipment must be available at the time of operations. The monitoring team must submit its findings to the Minerals Management Service Regional Director (RD) (Pacific OCS Office) and the SRD in accordance with a pre-established schedule. The findings must be submitted immediately in case of imminent danger to the biota or historical resources of the Sanctuary resulting from drilling or other operations. If it is determined by the RD, in consultation with the SRD, that surface disposal of drilling fluids presents no danger to the Sanctuary, no further monitoring of that particular well or platform is required. If, however, the monitoring program indicates that the biota or historical resources of the Sanctuary are being harmed, or if there is any likelihood that a particular well or platform may cause harm to the biota or historical resources of the Sanctuary, the RD and SRD shall require implementation of mitigating measures, such as: (1) the disposition of all drill cuttings and fluids by barging, or by shunting the material through a down pipe that terminates an appropriate distance, but no more that 10 meters, from the bottom, or (2) other appropriate operational restrictions.
This regulation would also require that a formal interagency consultation process between the SRD and MMS be established to oversee the monitoring process with the Sanctuary.
b. Impact to Resources [Part III TOC]
Many of the impacts discussed above under the Status Quo regime would still apply although particularly sensitive areas would be protected by eliminating development in specific zones around resources most at risk.
c. Impact to Uses [Part III TOC]
Increases in human activities associated with offshore oil and gas development would still occur although at potentially reduced magnitudes. Conversely, the predicted negative impacts to fishing and recreational activities would be reduced.
3. Sanctuary Alternative 2 (Preferred) [Part III TOC]
a. Sanctuary Action [Part III TOC]
Exploring for, developing, or producing oil, gas or minerals is prohibited in the Sanctuary
b. Impact to Resources [Part III TOC]
The resources and qualities of the Monterey Bay area, particularly sea otters, sea birds, and pinnipeds that use the haul- out sites, kelp forests and rocks along the Monterey Bay coast, and the high water quality of the area, are especially vulnerable to oil and gas activities in the area. A prohibition on oil and gas activities within the proposed Sanctuary boundary would provide partial protection from oil and gas activities for the resources and qualities within the proposed boundary. Only partial protection would be provided due to the remaining threat from oil and gas activities outside of the Sanctuary boundaries and from vessel traffic, particularly oil tankers, transiting through and near the Sanctuary. A prohibition on mineral activities within the proposed Sanctuary is consistent with the prohibition on alteration of or construction on the seabed as discussed below.
The proposed regulation would prohibit activities in the Sanctuary which might otherwise result in chronic discharges, catastrophic oil spills, and various other activities associated with petroleum development which may harm wildlife (including many endangered species) within some of the primary foraging waters surrounding the major bird and pinniped rookeries and resting places in the area. The proposed prohibition of hydrocarbon activities would ensure continued absence of leasing in the currently deferred Federal OCS areas off Monterey and Big Sur and deferred state waters and add an additional layer of protection to especially environmentally sensitive areas such as off Año Nuevo.
While it is clear that the natural resources and qualities of Monterey Bay are of national significance and value, scientific evidence and public opinion are still divided regarding the effects of oil and gas activities on these natural resources and qualities. Due to the mandate of the MPRSA to protect these nationally significant natural resources and qualities and the identified risks to these resources, NOAA is proposing to eliminate concern for any adverse environmental impacts that may occur in the Sanctuary from oil and gas activities by prohibiting these activities within the preferred Sanctuary boundary (approximately 4024 square miles).
c. Impact to Uses [Part III TOC]
There is presently no oil and gas development taking place in the study area. Lease Sale 119 has been canceled and no additional Lease Sale activity is proposed through the year 2000. The proposed Sanctuary prohibition would eliminate all potential future direct and indirect oil and gas industry activities in the area. However, activities such as tourism and fishing should be beneficially impacted.
C. Discharges or Deposits [Part III TOC]
1. Status Quo [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
Numerous laws and regulations administered by many local, state and Federal agencies exist governing the contamination of coastal and ocean waters by discharges and deposits from a variety of sources, including, but not limited to: 1) discharges from point sources, which require a National Pollutant Discharge Elimination System (NPDES) permit (e.g. power, industrial, desalination and municipal wastewater treatment plants and oil and gas platforms); 2) discharges from non-point sources, (e.g. urban and agricultural runoff); 3) discharges of oil and hazardous substances (e.g. oil from vessel bilges and toxic chemicals) and overboard trash disposal (e.g. discarded fishing nets and plastic trash) and 4) ocean dumping (e.g. dredge material from harbor channels).
The primary Federal, state and local laws, policies and plans governing discharges include but are not limited to: the Federal Water Pollution Control Act (the "Clean Water Act", CWA); Title I of the Marine Protection, Research, and Sanctuaries Act (MPRSA); the Coastal Zone Management Act (CZMA); the Rivers and Harbors Act; the Act to Prevent Pollution from Ships, (which implements MARPOL 73/78, Annexes I and II); the Marine Plastic Pollution Research and Control Act (which amends the Act to Prevent Pollution from Ships and implements Annex V of MARPOL 73/78); the Oil Pollution Act (OPA); the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (which, together with section 311 of the CWA, provides for the National Contingency Plan); EPA's Administrative Regulations; the State of California Water Code, including but not limited to the California Porter-Cologne Water Quality Act; the California Fish and Game Code; the California Harbors and Navigation Code; the California Ocean Plan; the California Enclosed Bays and Estuaries Plan; the Water Quality Control Plan-San Francisco Bay Basin Region (2); the Water Quality Control Plan-Central Coast Basin Region (3). (Many of these authorities are discussed in more detail in Appendix C).
Responsible agencies for implementing appropriate regulations and plans include but are not limited to, the National Oceanic and Atmospheric Administration (NOAA), the U.S. Environmental Protection Agency (EPA), the U.S. Corps of Engineers (COE), the U.S. Coast Guard (USCG), the California State Water Resources Control Board (SWRCB), the California Regional Water Quality Control Board, Central Coast Region (RWQCB, Central Coast Region), the California Regional Water Quality Control Board, San Francisco Bay Region, (RWQCB, San Francisco Bay Region), the California Coastal Commission (CCC), and the Association of Monterey Bay Area Governments (AMBAG).
(1) Point Source Discharges [Part III TOC]
NPDES permits are required by all dischargers, municipal and industrial, that discharge pollutants from a point source into navigable waters of the U.S., the waters of the contiguous zone, or ocean waters. The SWRCB and the RWQCBs are responsible for the protection of the quality of the State's waters through the development of water quality control plans and the issuance of waste discharge orders. Pursuant to Section 402 of the CWA and Section 13370 of the California Water Code, EPA has approved the State's program to issue and enforce NPDES permits to ensure, to the greatest extent possible, that discharges to surface waters do not adversely affect the quality and beneficial uses of the such waters. The State issues NPDES permits in accordance with a Memorandum of Agreement (MOA) between the EPA and the State Board. Regional Board staff prepare the permit and the State Board and EPA may comment upon, or object to the issuance of, a permit or the terms and conditions therein. Neither the State Board not the regional Boards adopt or issue an NPDES permit until all objections have been resolved pursuant to 40 CFR 123.44 and the MOA.
(2) Non-Point Source Discharges (NPS) [Part III TOC]
EPA has provided the State of California guidance on implementing the provisions of EPA's Antidegradation Policy (40 CFR 131.12) which is applicable to Non-Point Source (NPS) Pollution as well as Point Source Pollution. Specifically, "where high quality waters constitute an outstanding National resource, such as waters of National and State Parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected" (40 CFR 131.12 (a)(3)). The NPS provisions of the CWA 205(j), 208, 303(e) and 319 are subject to the antidegradation policy and EPA is developing additional guidance in this area.
AMBAG has prepared a Non-Point Source Pollution Program Manual pursuant to the CWA 208 studies, with recommendations to guide local governments and other agencies in preparing effective control ordinances and BMPs for erosion and sedimentation, and urban and agricultural runoff, and is continuing to manage studies on non-point source pollution under the CWA 205(j).
The State of California's 319 Non-Point Source Pollution Plan approved by EPA pursuant to the CWA identifies the SWRCB to take the lead for coordination of NPS efforts with other agencies such as the U.S. Agricultural Stabilization and Conservation Service, U.S. Soil Conservation Service and California Department of Transportation. Under the 319 Plan it is predicted that the Regional Boards will develop policy for NPS from (1) voluntary implementation of Best Management Practices (BMP) (such as those enumerated for NPS agricultural and urban issues in the Report to Congress: "NPS Pollution in the United States, Report to Congress, 1984"), (2) regulatory based encouragement of BMP's, and (3) effluent limitations.
The CCC retains permanent jurisdiction and requires a coastal development permit for actions over lands of the coastal zone including the immediate shoreline (tidelands, submerged lands, and public trust lands) under the provisions of the California Coastal Act (CCA) of 1976 (Cal. Pub. Res. Code 3000 et seq.) pursuant to the authority of the CZMA. In addition, the CCC retains appeal jurisdiction for certain types of development in certain areas where a local government has a certified Local Coastal Program (LCP). Several of the CCC policies provide special consideration to the resources and qualities of the Sanctuary including but not limited to, (1) providing special protection to areas and species of special biological or economic significance, and requiring that uses of the marine environment shall be carried out in a manner that will maintain biological productivity (CCA, Section 30230), (2) limits dredging and filling in coastal waters to situations where "there is no feasible less environmentally damaging alternative" and where related to specific listed purposes (CCA, Section 30233), (3) authorizes the protection of environmentally sensitive habitat areas "against any significant disruption of habitat values" and against impacts from adjacent development which would "significantly degrade" the area (CCA, Section 30240), and (4) considers the secondary impacts resulting from the increase in power production needs for desalination plants (CCA, Section 30253(4).
Finally, the Omnibus Budget Reconciliation Act, 1990, P.L. 101- 508, Section 6217(g) requires the Administrator of EPA in consultation with the Secretary of Commerce and the U.S. Fish and Wildlife Service and other Federal agencies, to publish guidance for specifying management measures for sources of NPS in coastal water; and Section 6217(b) requires each state with an approved coastal zone management program to provide for implementation, at a minimum, of management measures in conformity with the guidance of (g) and implemented through the State coastal zone management program under the CZMA and the section 319 program under the CWA to protect coastal waters from non-point source pollution from adjacent coastal land uses, and to protect designated critical areas through additional management measures.
(3) Hazardous waste, oil and trash disposal [Part III TOC]
Discharges of oil and hazardous substances are regulated under the CWA, OPA and CERCLA, with discharges of oil, oily mixtures and noxious liquid substances by seagoing ships also regulated under the Act to Prevent Pollution from Ships. The CWA and CERCLA provide for the National Contingency Plan (40 CFR Part 300), under which the Coast Guard serves as the lead agency for responding to discharges of oil and hazardous substances.
Discharge of plastics and other ship-generated garbage by ships is regulated under the Act to Prevent Pollution from Ships by the Coast Guard (regulations appear at 33 § CFR 151.51 to 151.77).
(4) Ocean dumping [Part III TOC]
The COE has permitting authority, with EPA review and approval, over dumping of dredged material in waters lying seaward of the baseline from which the territorial sea is measured (Title I, section 103 of the MPRSA). COE also issues permits for discharge of dredged material into navigable waters inside the baseline (section 404 of the CWA). EPA has permitting authority for ocean dumping of materials other than dredged materials (Title I, section 102 of the MPRSA).
The regulations under Title I of the MPRSA provide for special recognition of nationally significant marine areas, such as marine sanctuaries under Title III.
b. Impact to Resources [Part III TOC]
Although water quality in the Monterey Bay area is considered to be good, there is evidence of potential water quality problems in limited segments and there exists an increasing public demand to address the decline in the health and productivity of our Nation's coastal and ocean resources. It has been recommended by the U.S. Office of Technology Assessment that it is necessary to identify waterbodies needing additional management such as the Monterey Bay area where increased population pressure on the coastal zone and associated point and non-point sources of pollution such as toxics and nutrients threaten the water quality and all resources of the Monterey Bay area without additional deliberate protection.
Monterey Bay water quality has been the topic of much concern as a result of domestic wastewater and industrial discharges into the Bay. Freshwater inflows are also carrying agricultural, industrial and domestic wastes and sediments into the Bay. High concentrations of nutrient buildups, algae blooms, and fecal coliform bacteria have been identified in certain pockets of the Bay. Benthic habitats will continue to be threatened by proposed designation and use of ocean disposal dump sites in the Sanctuary. Water quality is threatened from existing and proposed nutrient and metal loading from sewage treatment plants. Point and non-point source pollution has also caused the closure of shellfishing beds in the Monterey Bay area and continues to threaten productive coastal habitats such as estuaries and sloughs through eutrophication and toxic loadings of metals, pesticides and herbicides. Coastal and offshore species of fish, seabirds and marine mammals, particularly the sea otter, are threatened from garbage and disease from contaminated food and contact with pathogenic organisms. Similarly, elevated levels of DDT, PCB , lead and other toxins and carcinogens are believed to have caused reproduction failures in certain marine mammals.
Proposed desalination plants in the Monterey Bay area would cause a variety of potential environmental impacts depending on the final location and type of operation. A seawater desalination plant requires a coastal groundwater or ocean source of water, a means of disposing of the waste brine (which may require an outfall pipe), and a distribution system of the potable product water.
Operation of a desalination plant causes a complex discharge to the ocean environment from pre-treatment of the feedwater, effluent from pipeline flushing, Reverse Osmosis (R/O) membrane cleaning solutions, and the disposal of concentrated brines. According to the DEIR for the City of Santa Barbara's Temporary Emergency Desalination Project there are several chemicals used during the desalination process which could pose a hazard to the environment including, chlorine, sulfur dioxide, sodium hydroxide, ferric chloride, carbon dioxide, antiscalent, zinc orthophosphate, and polyelectrolyte.
Pretreatment of feedwater involves not only filtering to remove sand and other particulate matter but also addition of chlorine and carbon dioxide for Ph reduction and ferric chloride for coagulation of suspended solids. Frequent (once every three days) filter backwashing and membrane cleaning with alkaline cleaners remove organic fouling. Brine disposal involves discharge of seawater at approximately 1.8 times background seawater salinity.
The discharge from the plume, as well as any pipelines may also alter the natural currents in the area. Air emission would also increase due to the production of energy for use in desalination plants.
c. Impact to Uses [Part III TOC]
The status quo would continue to provide for increasing urban and agricultural use adjacent to the Monterey Bay area which in turn will cause additional sources of point and non-point source pollution. Urban population increases are predicted in the coastal zone of Monterey Bay and agricultural land use is expected to continue at least at current levels under the status quo. The status quo regime for discharges will not negatively impact these uses of the Monterey Bay area based on considerations of the cumulative impact of these activities on the resources and qualities of the Monterey Bay area ecosystem.
Desalination plants not only have the impact of producing freshwater for local communities but may also have the side-effect of disturbing recreational activities in the area. In addition, proposals to mix the discharge effluent with existing municipal discharges may cause difficulties with enforcement because the recipient of the desalination discharge permit will become responsible for the compliance with the regulatory requirements.
2. Sanctuary Alternative (Preferred) [Part III TOC]
a. Sanctuary Action [Part III TOC]
Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter is prohibited except:
(i) fish, fish parts, chumming materials or bait used in or resulting from traditional fishing operations in the Sanctuary;
(ii) biodegradable effluent incidental to vessel use and generated by marine sanitation devices approved in accordance with Section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA) 33 U.S.C. 1322 et seq.;
(iii) water generated by routine vessel operations (e.g., cooling water, deck wash down and graywater as defined by Section 312 of the FWPCA) excluding oily wastes from bilge pumping;
(iv) engine exhaust; or
(v) dredged material deposited at disposal sites authorized prior to 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 existing on the effective date of Sanctuary designation.
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 is prohibited except those listed in (i - iv) above and dredged material deposited at the authorized disposal sites described in Appendix IV of Sanctuary Regulations -- see Appendix B, provided that the dredged material disposal is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval.
b. Impact to Resources [Part III TOC]
The intent of this prohibition is to protect the Sanctuary resources and qualities from the harmful effects of land and sea- generated point and non-point source pollution, such as but not limited to, trash and oil disposal by vessels and pollutant loading from adjacent urban and rural land use practices.
By maintaining the high water quality of the Monterey Bay area the organisms responsible for primary productivity at the base of the food chain will be protected. Coastal wetland, slough and estuarine habitats will be protected from the direct effects of pollutant loadings. Benthic biota will be protected especially from smothering and turbidity increases from the dumping of dredge material. Fish, seabirds, turtles and marine mammals will be protected from direct negative impacts such as entanglement in discarded trash and infection from degraded water quality and benefit from the indirect effects of protected habitats and enhanced prey abundance
c. Impact to Uses [Part III TOC]
Overall the impact of this regulation on human uses as well as the Sanctuary resources and qualities is expected to be beneficial. No existing human uses will be terminated with designation and in the long-term, many activities such as fishing, mariculture and tourism will continue to benefit from the maintenance of the high water quality of the area.
In accordance with section 304(c)(1) of the MPRSA, 16 U.S.C. 1- 434(c)(1), NOAA may regulate existing permits through certification which may include imposition of terms and conditions consistent with the purposes for which the Sanctuary is designated. Permits issued after the date of designation are subject to a review process which may include added terms and conditions or objection to issuance, as necessary to protect Sanctuary resources and qualities. Any application for an amendment, renewal or extension to an existing permit is considered a new permit.
NOAA will work within the existing process, rather than create an entirely new regulatory review and approval procedure, governing discharge activities in the Monterey Bay NMS area and coastal watersheds. NOAA intends to minimize any additional administrative burden on those dischargers that are required to obtain a National Pollutant Discharge Elimination System (NPDES) permit or a Waste Discharge Requirement (WDR) permit for discharges that affect or may affect the Monterey Bay NMS, while at the same time, ensure that the existing process addresses the special concerns of the Sanctuary and its resources and qualities. In addition, a close working relationship between the Sanctuary and existing authorities and affected users will necessitate the identification and exchange of information relevant to the parties' mutual goals for the maintenance of the area's high water quality and the protection and conservation of resources and qualities of the Monterey Bay area.
NOAA and EPA and the State have developed a Memorandum of Agreement (MOA) between Federal, state and local water quality management agencies to provide specific procedures and develop a mechanism to achieve the goals of the Sanctuary by using the existing discharge permitting process (see Appendix G). The MOA specifies how the NOAA regulations on certification of existing discharge permits and review of new discharge permits will be administered within State waters within the Sanctuary in coordination with the State permit program. Consistent with the MPRSA primary objective of protecting the Sanctuary and its resources, (Section 301(b)(5) of the MPRSA, 16 U.S.C. § 1431(b)(5)), the Sanctuary regulations address discharges within the Sanctuary boundary (15 CFR 944.5(a)(2)) as well as those discharges outside of the Sanctuary boundary that enter and injure Sanctuary resources and qualities (15 CFR 944.5(a)(3)).
Specific impacts to uses of the area that involve discharge into the Sanctuary area are discussed in more detail below.
(1) Vessels [Part III TOC]
The impact of this regulation on vessel operations is expected to be minor. Oil discharges are presently regulated under, e.g., the Clean Water Act, Oil Pollution Act and the Act to Prevent Pollution from Ships.
Non-biodegradable and other potentially harmful trash would have to be kept on boats and disposed of at proper facilities, most likely on the mainland. The exemptions from this regulation are designed to allow continued use of the Sanctuary by vessels that do not appear to threaten Sanctuary resources and qualities. Thus, fish, fish parts, chumming materials and bait used in or resulting from traditional fishing operations within the Sanctuary, exhaust, vessel cooling waters, and approved marine sanitation wastes are specifically exempted from the prohibition.
(2) Dredge Disposal Activities [Part III TOC]
The regulation would allow existing disposal of dredge material at existing disposal sites off of Moss Landing, and new disposal at those sites if approved by NOAA, and only prohibit designation/use of new dump sites within the Sanctuary.
NOAA is consulting with EPA, COE, the State Water Resources Board and Regional Water Quality Control Board and Harbor Masters regarding existing dredge and disposal activities within the vicinity of the proposed Sanctuary. Dredging activities in harbors would not be affected by Sanctuary designation as harbors (with the exception of a portion of Moss Landing) are not included within the Sanctuary boundary and dredging of entrance channels in the Sanctuary is exempt from the Sanctuary prohibition.
As indicated above, the regulation would prohibit the designation and use of any new dredged material disposal sites within the Sanctuary. NOAA intends to work closely with COE and EPA to determine the need for any additional measures in their regulatory program necessary to insure protection of Sanctuary resources and qualities from future dredged material disposal activities.
With regard to dredged material disposal activities:
(a) Those activities located within the Sanctuary boundary would 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, would also be subject to the NOAA review process of section 944.11 of the Sanctuary regulations.
(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 currently underway would not be regulated under the Sanctuary regulatory regime, but instead would be regulated primarily under Section 103 of the MPRSA and Section 404 of the Clean Water Act. Because of the intensive environmental evaluation of disposal sites by the 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 would not apply to dredged material deposited outside the Sanctuary at existing disposal sites off of the Golden Gate and would not apply to dredged material deposited outside the Sanctuary at the duly 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 of the Sanctuary regulations . When that site is authorized, Appendix IV of the Sanctuary regulations would be amended to indicate its precise location. The COE will coordinate closely with NOAA concerning the management of dredged material disposal activities at the new site.
(3) Point Source Discharges [Part III TOC]
Discharges and deposits from point sources directly or indirectly into the Sanctuary, pursuant to any valid permit existing on the effective date of these regulations, are allowed subject to all prohibitions, restrictions and conditions validly imposed by any other authority of competent jurisdiction, provided, however, that NOAA may regulate the exercise of these existing permits as necessary to achieve the purposes for which the Sanctuary was designated. NOAA has entered into a Memorandum of Agreement (MOA) with the State of California, the U.S. Environmental Protection Agency and the Association of Monterey Bay Area Governments regarding the NOAA regulations on 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.
In consultation with scientific institutions and local, State and regional organizations such as the Association of Monterey Bay Area Governments, NOAA would consult with the permittees and the relevant permitting authorities of these activities to determine means of achieving the Sanctuary purposes. If additional constraints are necessary, NOAA will work with the permittees and permitting authorities to determine the necessary level of terms and conditions to provide adequate protection of the Sanctuary's resources and qualities.
The requirement of NOAA certification of existing permits for, e.g., municipal sewage, industrial and power plants will ensure NOAA consideration of potential impacts on Sanctuary resources and qualities. The NOAA certification process will be coordinated with EPA and State and Regional Water Quality Control Boards through the terms of the MOA (see Appendix G).
New proposals for permits, licenses, or other authorizations after the effective date of Sanctuary designation, e.g., allowing the discharge of municipal sewage, industrial, power, or desalination effluent would be subject to Sanctuary review to ensure that Sanctuary resources and qualities are protected from injury.
When existing permits are submitted for renewal, they would be reviewed as a new permit, and NOAA would evaluate the activity to determine whether there would be any negative effects to water quality or resources and whether the permittee has complied with its permit standards and if necessary, decreased its discharge and increased its performance due to the presence of a National Marine Sanctuary.
After expiration of current permits, the Sanctuary will require secondary treatment or greater for municipal treatment plants, as necessary depending on the risk to Sanctuary resources and qualities. Secondary treatment removes over 70% more Biochemical Oxygen Demand than primary treatment as well as twice the Total Suspended Solids and a far greater proportion of metals and organics (DEIR, Cities of Gilroy and Morgan Hill, January, 1990). (The MOA provides that, as the City of Watsonville is in the process of obtaining a CWA 301(h) waiver renewal as the Sanctuary designation is being finalized, the City of Watsonville may be allowed a one time renewal with a timeline for compliance with secondary standards requirements. This one time renewal allows the City of Watsonville until November 1, 1998 to achieve secondary treatment.)
This regulation could thus result in additional costs to existing and future dischargers if the Sanctuary were to determine that a higher level of treatment or other, more expensive disposal methods were preferable in order to ensure Sanctuary resources and qualities are protected. However, the requirement of Sanctuary certification or approval of permits for point source dischargers would ensure that these potentially harmful activities receive special consideration from the Sanctuary viewpoint.
(4) Non-Point Source Discharges (NPS)
Land-based NPS discharges within watersheds adjacent to the Sanctuary that drain into the Sanctuary would be monitored to ensure the activity is consistent with the goals of the Sanctuary and that Sanctuary resources and qualities are protected. If evidence arises that Sanctuary resources and qualities are threatened, NOAA intends to work with existing regulatory agencies and responsible parties to determine appropriate measures to prevent the threat of injury to Sanctuary resources and qualities.
D. Historical Resources [Part III TOC]
1. Status Quo [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
Under this alternative any historical resources (as defined by Sanctuary Program and Sanctuary regulations to include, inter alia, archeological, paleontological, or cultural resources) would remain subject only to the existing management regime, including the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. 470 et seq., the Archeological and Historical Preservation Act of 1974, 16 U.S.C. 469 et seq., the Abandoned Shipwreck Act (ASA) of 1987, 43 U.S.C. 2101 et seq., and the Archeological Resources Protection Act of 1979 (ARPA), 16 U.S.C. 470aa et seq., and with permits provided by the State Lands Commission for those historic resources under its jurisdiction in State waters, pursuant to the Shipwreck and Historic Maritime Resources Program of 1989, enacted by the State legislature as Chapter 732, in accordance with the ASA.
b. Impact to Resources [Part III TOC]
Existing regulatory authorities provide some protection for underwater historical resources in the proposed Sanctuary. California can register sites as either "points of interest" or "land marks", and the latter designation provides some protection to sites in State waters. Further, the California Shipwreck and Historic Maritime Resources Program provides for civil and criminal penalties for unpermitted damage or disturbance of underwater historical objects in State waters. It also provides for a State submerged historical resources management plan.
Guidelines published by the National Park Service assist the states and Federal agencies in developing legislation and regulations to carry out their management responsibilities regarding shipwrecks in accordance with the provisions of the ASA.
The NHPA mandates that federal agencies consult with the Advisory Council on Historic Preservation before engaging in any undertaking that could affect historic resources. Consultation with the expertise of this Council provides Federal agencies with an opportunity to ensure their proposed activities are technically adequate and that any plans to salvage historical resources take into account preservation requirements for the long-term protection of the resources.
The State Lands Commission (SLC) in association with the State Historic Preservation Office (SHPO) can nominate appropriate sites and vessels for listing on the National Register of Historic Resources. In an agreement with the University of California the SLC has begun a computer inventory of historic sites and shipwrecks in State waters to provide further research on these sites and vessels to determine their historic significance. Under this alternative, there would be minimal protection of other associated resources and the site's environmental integrity, such as benthic biota and fish communities.
c. Impact to Uses [Part III TOC]
Salvage operations in State waters are also subject to permits by the State Lands Commission. Registration on the National Register of Historic Sites provides protection only against Federal and not private activities such as wreck divers and treasure salvors.
2. Sanctuary Alternative (Preferred) [Part III TOC]
a. Sanctuary Action [Part III TOC]
Moving, removing or injuring, or attempting to move, remove or injure, a Sanctuary historical resource is prohibited. This prohibition does not apply to moving, removing or injury resulting incidentally from kelp harvesting, aquaculture or traditional fishing operations.
b. Impact to Resources [Part III TOC]
Under this alternative, moving, removing or injuring or attempting to move, remove, or injure a Sanctuary historical resource would be prohibited without NOAA approval (see the introduction to Part III). Sanctuary management of historical resources under the authority of the MPRSA shall be consistent, to the extent practicable, with the Federal archeological program by consulting the Uniform Regulations, ARPA (43 CFR Part 7), the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716, Sept. 29, 1983) and other relevant Federal regulations. NOAA also intends to work closely with the California State Lands Commission and the SHPO regarding approval to move or remove abandoned shipwrecks title to which is held by the State of California.
Any historical resources known to be within the proposed Sanctuary, especially those that are on the National Register listing under the National Historic Preservation Act, would be carefully monitored by Sanctuary staff. In addition, any activity that could lead to the discovery of historical resources would be carefully monitored. The Sanctuary Manager would try to ensure that adequate information is available regarding the national significance of these resources and appropriate management measures are in place.
This regulation is necessary in order to protect these valuable resources for research and interpretation. In addition, during its review of a request for a Sanctuary permit, NOAA would consider the impacts of the proposed activity on adjacent Sanctuary resources and qualities such as benthic communities and associated fish populations.
c. Impact to Uses [Part III TOC]
Human activities that "take" a historical resource would require Sanctuary approval (however, see exception in regulation for certain fishery activities). Such approval would only be given under specific circumstances such as for research or education purposes. Where this responsibility overlaps with other state and Federal agencies the Sanctuary would coordinate its review with the appropriate agency. As only a few uses "take" historical resources, such as Navy, treasure salvors and recreational divers, the impact of this regulation on uses is expected to be minor.
E. Alteration of or Construction on the Seabed [Part III TOC]
1. Status Quo [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
The most relevant legislation pertaining to the alteration of or construction on the seabed includes section 10 of the Rivers and Harbors Act; Section 404 of the Clean Water Act; Title I of the Marine Protection, Research, and Sanctuaries Act; the Submerged Lands Act; the Outer Continental Shelf Lands Act; the State Porter-Cologne Water Quality Act; and the California Coastal Act (Appendix C gives additional information about many of these activities).
The primary Federal agencies affected include, but are not limited to, the U.S. Corps of Engineers and EPA; and the primary state agencies include but are not limited to, the State Lands Commission and the California Coastal Commission (CCC).
b. Impact to Resources [Part III TOC]
Under this alternative, the benthic resources and the various substrates of the Sanctuary would continue to be protected only by the existing management regime. Existing State and Federal regulations governing activities on the seabed would still apply. There would be no special emphasis on the importance of the seabed as an environment that provides a variety of habitats that in turn supports the rich colonies of kelp and other algae, benthic invertebrates and associated organisms dependent upon these habitat assemblages.
For example, desalination, municipal, power and industrial plant operation can cause seafloor disturbance, increased turbidity and damage to kelp beds during pipeline construction and maintenance. Construction impacts from desalination and municipal plants could result in disturbance to seabirds and marine mammals; air pollution emissions; obstruction of views caused by machinery, piping or tall structures; loud noises; disturbance to archaeological and paleontological resources; erosion; non-point source pollution; and disturbance of dune, surf zone and sea floor ecology. The building of harbor breakwaters, piers and jetties can smother benthic habitat and alter current patterns in the immediate vicinity.
Finally, sand mining (recently terminated below mean high water), dredging and dredge disposal activities cause loss of sediment and associated disruptions in benthic communities from erosion of habitat and smothering of organisms from increased turbidity and particle deposition.
Although, the CCC limits dredging and filling in coastal waters to situations where "there is no feasible less environmentally damaging alternative" and where it is related to specific listed purposes, under the status quo, no one agency reviews the impacts of these activities on a cumulative basis or from the holistic perspective of the Sanctuary ecosystem.
c. Impact to Uses [Part III TOC]
Harbor maintenance activities are predicted to increase, including expansion, and dredging and disposal of material from slips and navigation channels. The construction of pipelines and outfalls into the ocean is predicted to increase.
Continued alteration of the seabed can interfere with public access and recreation and loss of fish habitat and fishing grounds. Erosion of dunes and beaches from sand mining may not only impact nature viewers and recreationists but may also interfere with long- term coastal development projects in the area.
2. Sanctuary Alternative (Preferred) [Part III TOC]
a. Sanctuary Action [Part III TOC]
Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the seabed of the Sanctuary, is prohibited except as an incidental result of: (i) anchoring vessels; (ii) aquaculture, kelp harvesting or traditional fishing operations; (iii) installation of navigation aids; (iv) harbor maintenance in the areas necessarily associated with Federal Projects in existence on the effective date of Sanctuary designation, including dredging of entrance channels and repair, replacement or rehabilitation of breakwaters and jetties; or (v) construction, repair, replacement or rehabilitation of docks or piers.
b. Impact to Resources [Part III TOC]
The intent of this prohibition is to protect the resources and qualities of the Sanctuary from the harmful effects of activities such as, but not limited to, archeological excavations, drilling into the seabed, strip mining, laying of pipelines and outfalls, ocean mineral extraction (including but not limited to sand mining), dumping of dredge spoils and offshore commercial development that may disrupt and/or destroy sensitive marine benthic habitats such as kelp beds, invertebrate populations, fish habitats, and estuaries and sloughs.
c. Impact to Uses [Part III TOC]
Existing permitted activities that result through alteration of, or construction on the seabed, would continue but be regulated by the Sanctuary to ensure the activity is consistent with the purposes for which the Sanctuary was designated in accordance with Section 944.10.
New activities, for example, development of new breakwaters, new applications or requests for offshore commercial development projects such as, but not limited to, artificial reefs, would be regulated by the Sanctuary, in consultation with appropriate existing authorities and users, to ensure that Sanctuary resources and qualities are protected in accordance with Section 944.11.
As harbors (with the exception of a portion of Moss Landing) are excluded from the Sanctuary boundary, all harbor activities within the exclusion zones would be excluded from the scope of the regulation. In addition, harbor activities beyond the boundary of the Sanctuary are exempted from this regulation. No designation of new dredge disposal sites would be allowed in the Sanctuary. New dredge disposal at existing sites would be regulated by NOAA in accordance with section 944.11.
Consistent with the first prohibition on oil, gas and mineral activities within the Sanctuary, no new sand mining would be allowed in the Sanctuary and requests for new permits or permit renewals for sand mining would be disapproved.
F. Taking Marine Mammals, Turtles and Seabirds [Part III TOC]
1. Status Quo [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
The Marine Mammal Protection Act (MMPA), Endangered Species Act (ESA), and the Migratory Bird Treaty Act (MBTA) are the principal authorities for the protection and conservation of marine wildlife. Agencies involved in the administration of these measures include the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, and the State Department of Fish and Game (Appendix C gives additional information about these statutes).
b. Impact to Resources [Part III TOC]
Under this alternative the MMPA and the ESA would provide protection to the marine mammals, turtles and seabirds of the Sanctuary--both prohibit the taking (broadly defined to include harass, hunt, capture or kill or to attempt to do so) of specific species protected under those Acts.
The MBTA codifies a series of conventions between the U.S. and Great Britain, Mexico, Japan and the USSR providing protection of the migratory birds, and their nests and eggs from taking, killing, possessing, selling and other specified forms of exploitation. Such acts are permitted only via permits. (Regarding marine mammals except sea otters, see the discussion of fishing for information on the five year incidental take exemption for commercial fishermen established by the 1988 amendments to the MMPA.) These resources would continue to be protected on a species basis but not under the special purview of the Sanctuary management regime.
c. Impact to Uses [Part III TOC]
All users of the Monterey Bay area are prohibited from taking any marine mammal or endangered or threatened seabirds and turtles unless in possession of a permit. For instance, incidental taking of an endangered species in the course of fishing is prohibited except under special circumstances. All taking of migratory birds is prohibited by the MBTA without a permit, and permits are not granted for taking in the course of fishing.
2. Sanctuary Alternative (Preferred) [Part III TOC]
a. Sanctuary Action [Part III TOC]
Taking any marine mammal, sea turtle or seabird in or above the Sanctuary, except as permitted by regulations as amended, promulgated under the Marine Mammal Protection Act (MMPA) as amended, the Endangered Species Act (ESA), as amended, and the Migratory Bird Treaty Act (MBTA), as amended, is prohibited. The term "taking" is defined broadly to include harass, hunt, capture or kill, or to attempt to harass, hunt, capture or kill any marine mammal.
b. Impact to Resources [Part III TOC]
The proposed prohibition would overlap with the MMPA, MBTA and ESA but also extend protection for Sanctuary resources on an environ- mentally holistic basis. It would include all marine mammals, sea turtles and seabirds in or above the Sanctuary.
This regulation would not affect any users other than those already regulated. However, upon violation of this Sanctuary regulation the MPRSA (Section 307) allows NOAA to assess civil penalties as high as $50,000 for each violation. The status quo sets maximum sanctions as follows: The MBTA sets maximum criminal fines at either $500 or $2000 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 and maximum criminal fines at $50,000 (the statutes also provide for imprisonment for criminal violations). Thus this sanctuary regulation may further deter violations. In addition, since civil penalties for violation of sanctuary regulations go back into the Marine Sanctuary Program, a more directed effort can be implemented to protect these valuable natural resources.
c. Impact to Uses [Part III TOC]
As indicated above, this regulation would not affect any users other than those already regulated.
G. Overflights [Part III TOC]
1. Status Quo [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
The primary regulatory mechanisms for aircraft overflight include Federal Aviation Administration regulations located at FAR 91 et seq. and State Department of Fish and Game regulations for particular sensitive areas.
b. Impact to Resources [Part III TOC]
FAR regulations are intended to provide for the safe operation and maintenance of aircraft rather than for protection of the environment. Low level overflights of ecologically sensitive coastal areas are known to cause disturbance and even fatalities of marine wildlife such as sea otters, pinnipeds and seabirds. Migrating and foraging cetaceans are also known to change their behavior patterns when approached by aircraft flying at low levels. Some protection is provided by the State to areas such as the Año Nuevo Reserve, Point Lobos Reserve and the California Sea Otter Game Refuge by the Department of Fish and Game with overflight prohibitions below 1000 feet.
c. Impact to Uses [Part III TOC]
FAR regulations require safe operating altitudes and distances and specify that pilots are required to be more than 500 feet over water and higher than 500 feet within 500 feet of shore (FAR 91.119). Seaplane and floatplane operations in water are governed by the Coast Guard maritime regulations and by FAR's when airborne.
In addition, FAR regulations address careless and reckless operations, aircraft speeds, minimum altitudes and distances and right-of-way rules as well as prohibitions on dropping of objects, alcohol and drugs and operation near other aircraft.
2. Sanctuary Alternative (Preferred) [Part III TOC]
a. Sanctuary Action [Part III TOC]
Flying motorized aircraft, except as necessary for valid law enforcement purposes, at less than 1000 feet above any of the four designated zones within the Sanctuary is prohibited. The four zones are: (1) from mean high water out to three nautical miles between a line extending from Point Santa Cruz on a southwesterly heading of 220š and a line extending from 2.0 nmi north of Pescadero Point on a southwesterly heading of 240š; (2) from mean high water out to three nmi between a line extending from the Carmel River mouth on a westerly heading of 270š and a line extending due east along latitude 35š33' 17.5612 off of Cambria; (3) from mean high water and within a five nmi arc drawn seaward from a center point at the end of Moss Landing Pier; and (4) over the waters of Elkhorn Slough east of the Highway One bridge to Elkhorn Road.
b. Impact to Resources [Part III TOC]
The area-specific prohibition on overflights below 1000 feet (305 m) is designed to limit potential noise impacts, particularly those that might startle hauled-out seals and sea lions, sea otters or birds nesting along the shoreline margins of the Sanctuary. Intrusive overflights during sensitive biological periods would thus be minimized. The "1000 foot" regulation was chosen because it would complement existing State ASBS ceiling regulations and would also aid in particular enforcement situations (identification numbers on aircraft are readily detectable at the 1000 foot level). This regulation is similar to the approach recommended by the National Marine Fisheries Service and is currently in use at the Gulf of the Farallones and Channel Islands National Marine Sanctuaries. The four zones were chosen because they represent sensitive areas around estuaries and haul-out areas. Specifically, the southern zone overlaps with California Fish and Game overflight restriction zone over the California Sea Otter Refuge. The central zones encompass the sensitive marsh and bird habitat around Elkhorn Slough (a National Estuarine Research Reserve) and the mouth of the Pajaro and Salinas Rivers. The northern zone extends protection around the remainder of the kelp forest range and the principal pinniped haul- out area up to Año Nuevo and Pescadero Marsh (Figure 37).
c. Impact to Uses [Part III TOC]
The prohibition zones were designated in part to minimize impacts to areas where frequent overflights occur at less than 1000 feet especially over areas without high concentrations of marine resources. Thus, aircraft landing at or taking off from airports would not be affected and neither would seaplanes landing at or taking off from ocean moorings at Santa Cruz City Wharf and potentially in the future from the Monterey Harbor area.
In addition, overflights below 1000 ft within these zones would still be allowed if necessary to respond to an emergency threatening, life, property or the environment or for valid law enforcement purposes.
Aircraft that need to fly below 1000 feet within these zones for research purposes would require a Sanctuary research permit. Overflights conducted by the Department of Defense within these zones would be subject to the Sanctuary regulation on Department of Defense activities, as discussed earlier.
H. Operation of "Personal Water Craft" [Part III TOC]
1. Status Quo [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
By "Personal Water Craft", NOAA means any motorized vessel which is less than fifteen feet in length as manufactured, is capable of exceeding a speed of fifteen knots, and has the capacity to carry not more than the operator and one other person while in operation. The term includes but is not limited to jet skis, wet bikes, surf jets, miniature speed boats, air boats and hovercraft. Local ordinances can regulate the operation of personal water craft. In addition, the California Department of Boating and Waterways is responsible for boating facilities and regulation of such activities. The City of Santa Cruz prohibits the operation of personal watercraft within a Special Use Zone extending 300 yards offshore between the eastern boundary of the City of Santa Cruz and to the Pajaro River, excluding the City of Capitola and except when launching and landing
b. Impact to Resources [Part III TOC]
The use of personal water craft poses a serious threat to the resources of the Monterey Bay area. There is a potential for collisions with marine mammals, turtles and birds, injury to kelp beds, injury to mud flats and eelgrass and disturbance due to noise and exhaust to organisms near and on the surface in proximity to the craft.
c. Impact to Uses [Part III TOC]
Personal water craft operation interferes with the safe use of near shore ocean waters by other recreational users such as surfers, swimmers, recreational fishermen and other users.
2. Sanctuary Alternative (Preferred) [Part III TOC]
a. Sanctuary Action [Part III TOC]
Operation of personal water craft within the Sanctuary except within the four designated areas and access routes within the Sanctuary is prohibited. The four areas and access routes are:
(1) The approximately 1 sq. nmi. zone off of Pillar Point Harbor from launch ramp (37š 30' N, 122š 29' W) through harbor entrance to northern boundary of Zone One bounded by (a) 37š 29.6' N (breakwater buoy), 122š 29' W; (b) 37š 28.8' N (bell buoy), 122š 28.9' W; (c) 37š 28.8' N, 122š 28' W; and (d) 37š 29.6' N, 122š 28' W;(2) The approximately 3 sq. nmi. zone off of Santa Cruz Small craft Harbor ramp from 36š 57.4' N along a 100 yd wide access route due south along 122š W to the northern boundary of Zone Two (marked by the whistle buoy at 10 fathom curve) bounded by (a) 36š 55' N, 122š 02' W; (b) 36š 55' N, 121š 58' W; (c) 36š 56.5' N, 121š 58' W; and (d) 36š 56.5' N, 122š 02' W;
(3) The approximately 5 sq. nmi. zone off of Moss Landing Harbor/Elkhorn Yacht Club Launch Ramp from 36š 48.5' N along a 100 yd wide access route due west along harbor entrance to the eastern boundary of Zone Three bounded by (a) 36š 50' N, 121š 49.3' W; (b) 36š 50' N, 121š 50.8' W; (c) 36š 46.7' N, 121š 50.8' W; (d) 36š 46.7' N, 121š 49' W; (e) 36š 47.8' N, 121š 48.2' W; and (f) 36š 48.9' N, 121š 48.2' W; and
(4) The approximately 6 sq. nmi. zone off of the U.S. Coast Guard Pier (Monterey Harbor) Launch Ramp from 36š 36.5' N, 121š 53.5' W along a 100 yd wide access route due north to the southern boundary of Zone Four bounded by (a) 36š 38.5' N, 121š 55.5' W; (b) 36š 36.9' N, 121š 52.3' W; (c) 36š 38' N, 121š 51' W; and (d) 36š 40' N, 121š 54.3' W (Figure 38).
b. Impact to Resources [Part III TOC]
This regulation is designed to provide enhanced resource protection by addressing a major gap in the regulatory regime governing activities in the area. Operations of personal water craft would be prohibited generally beyond the 10 fathom contour and thus include protection to all State Parks, Reserves, Ecological Reserves, Refuges, Areas of Special Biological Significance, and Elkhorn Slough National Estuarine Research Reserve. In addition, areas of high marine mammal and seabird concentrations, kelp forest areas, river mouths, estuaries, lagoons and other similar areas within the Sanctuary would be protected. The definition of personal water craft was chosen to carefully include those craft that pose a threat to Sanctuary resources and to avoid inclusion of other craft (e.g., dive boats, zodiacs).
The increase in craft length from 13 feet (in the Draft EIS) to 15 feet (in the Final EIS) was based on the need to include additional types of craft that pose a threat to sanctuary resources. The change in craft speed from 20 mph (in the Draft EIS) to 15 knots (in the Final EIS) is based on the approximate conversion from land speed terminology/units to marine speed.
NOAA received overwhelming public comment to prohibit or restrict the craft in particular zones where there is evidence of threats to resources (e.g., injury to otters) or evidence of threats to persons engaged in other uses of the marine environment (e.g., interference with divers or surfers). The four zones and access routes were chosen: 1) to protect kelp forests, otters and other marine life; 2) to protect other users of the marine environment; and 3) to provide access to and encompass areas of traditional use by personal water craft operators.
c. Impact to Uses [Part III TOC]
A zoned approach to the use of personal water craft would still allow this activity to continue albeit only in specified areas. These areas and access routes were designated to not only avoid injury to Sanctuary resources (see H.1.b. above) but to minimize conflicts with other uses and allow use of areas where personal water craft operation has traditionally taken place.
This regulation would also reduce conflicts, and thus potentially positively impact, other beneficial uses of the Sanctuary such as surfing, sailing, recreational fishing and diving. Operation of personal water craft outside of these zones would be allowed if necessary to respond to an emergency threatening, life, property or the environment.
Those craft not included within the definition of "personal water craft" would be exempt from this prohibition (e.g., speed boats greater than or equal to 15 feet and sailboats). However, should the need arise in the future, these now-exempted vessels may need to be regulated by the Sanctuary to address threats to Sanctuary resources and qualities.
I. Vessel Traffic [Part III TOC]
1. Status Quo (Preferred) [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
The principal legislation and conventions governing vessel traffic includes: Oil Pollution Act, 1990 (P.L. 101-380); Act to Prevent Pollution from Ships which implements MARPOL 73/78 and its Annexes I, II, and V, Ports and Waterways Safety Act, International Convention to Prevent Collisions at Sea, and California Oil Spill Prevention, Abatement, and Removal Act, 1990, (SB 2040). The primary responsible agencies are the United States Coast Guard, International Maritime Organization, Department of Fish and Game, State Lands Commission (Appendix C provides more information about many of these statutes). NOTE: NOAA defines "vessel" to mean a watercraft of any description capable of being used as a means of transportation in/on the waters of the Sanctuary. As personal water craft have been discussed in the previous section, this section addresses other watercraft.
b. Impact to Resources [Part III TOC]
Although the area has had a long history of safe vessel traffic there may be a threat to the resources of the Monterey Bay area from possible collisions both between vessels and between vessels and resources of the Sanctuary, disturbances by vessels of resources of the Sanctuary and possible spills of oil and hazardous materials (Figure 39).
The probability and magnitude of a spill from all sources of vessel traffic remain uncertain. The U.S. Coast Guard is currently working with the Fish and Wildlife Service on a section 7 consultation regarding possible impacts on threatened species, specifically the Southern Sea Otter, from rerouting vessel traffic off the coast of California.
Once this information is available, NOAA will work with the U.S. Coast Guard as well as other Federal, State and local agencies to ensure that all the resources and qualities of the proposed Sanctuary are accounted for in the investigation and that future plans such as those for rerouting of vessel traffic off the coast of California and other preventative measures, take into account the purposes of the Sanctuary. In addition, NOAA will maintain close communication with the U.S. Coast Guard to evaluate the need for any necessary mitigative measures such as new or improved emergency response plans and equipment or additional studies and plans such as monitoring studies.
Action deemed appropriate would be submitted to the International Maritime Organization for its approval and adoption. For example, under MARPOL, "Special Areas" are designated with additional protection (in comparison with other open seas) with
Figure 39: Oil spills/Sea Otter range
respect to vessel discharges of oil (MARPOL, Annex I), noxious liquid substances (MARPOL, Annex II) and garbage (MARPOL, Annex V). In summary, discharge requirements in Special Areas designated via the IMO are considerable stricter than discharge requirements in other open sea areas under MARPOL.
Also, the IMO can designate "Particularly Sensitive Areas", that meet specific ecological, social, cultural, economic, scientific and educational criteria. In some circumstances, a proposed Particularly Sensitive Area may include a buffer zone and a core area for which particular protection from shipping is sought. In addition to the protection afforded by relevant MARPOL Annexes described above for "Special Areas", a Particularly Sensitive Area can include; (1) Areas to be Avoided (which closes an area for ships or certain classes of ships); (2) Routing measures (such as separation zones, precautionary areas, etc.,) and; (3) Vessel Traffic Services (VTS) such as reporting systems, navigation assistance and controlling of traffic.
c. Impact to Uses [Part III TOC]
At present only a few, large commercial vessels (the term "commercial vessel" is used to mean any vessel engaged in the trade of carrying cargo, including but not limited to tankers and other bulk carriers and barges) visit Monterey Bay ports, mainly to dock at Moss Landing. Almost all of the commercial vessel traffic within the proposed Sanctuary passes through the western edge of the preferred boundary. The navigation aids on geographic coastal points and the deep offshore water assist to minimize the possibility of groundings.
In addition, recent Federal and State legislation (Federal Oil Pollution Act (OPA) and California State Oil Spill Prevention, Abatement, and Removal Act (SB 2040) have focused directly on improving the status quo with regard to environmental protection from commercial vessel traffic (See Appendix C). For example, OPA establishes specific provisions for oil pollution liability, penalties and compensation as well as procedures regarding prevention of oil spills and removal of oil in case of an accident. Double hulls are required for most tankers in a phased approach over time as well as regulations regarding vessel communication equipment. In addition, California's SB 2040 emphasizes preventative measures as well as new response procedures including: expanded oil tanker inspection and safety programs, tugboat escorts in hazardous waters and comprehensive oil spill prevention plans for all tankers and terminals. SB 2040 creates a new state oil spill response unit, mandatory insurance requirements for tankers and an Emergency Fund for Clean Up.
Non-commercial vessel traffic is usually for specific purposes within the Monterey Bay area, such as research surveys in specific areas or fishing over specific fishing grounds. Such activities are regulated based on the special activity conducted rather than the transiting of the vessel through the area.
2. Sanctuary Alternative [Part III TOC]
a. Sanctuary Action [Part III TOC]
Under this alternative, a regulation would be promulgated with designation prohibiting or otherwise regulating operation of vessel traffic. Regulation of this activity is included in the scope of potential future regulations but the preferred alternative is not to regulate with designation. The preferred alternative, to give NOAA the authority to regulate vessel traffic in the future but to rely on the status quo with designation, will give NOAA the flexibility to work immediately with the U.S. Coast Guard on appropriate courses of action to protect the resources and qualities of Monterey Bay. As the preferred Sanctuary boundary encompasses the Golden Gate, any Sanctuary regulations governing vessel traffic would consider necessary vessel transit through the Golden Gate. Future regulations and/or other actions by others and/or NOAA that could impact vessel traffic may include but are not limited to one or a combination of the following: (1) designation of Areas to be Avoided (i.e., coast- wise vessel traffic be routed outside the boundary of the Sanctuary); (2) designation of Areas of Special Biological Significance (ASBS) (i.e., vessels are liable for high financial penalties if they cause injury to resources or qualities in an ASBS); (3) designation of vessel traffic lanes, separation schemes or fairways (i.e., all "large" vessels inbound to and outbound from Monterey Bay be restricted to port access route(s)); (4) the Monterey Bay National Marine Sanctuary be designated a "Tanker Exclusion Zone", (in accordance with OPA, Section 4111(b)(7)); (5) oil barge traffic be prohibited within the Sanctuary; (6) special technical designs be required (e.g., require double hulls, for petroleum and other hazardous substance transport vessels in the Sanctuary); (7) special planning procedures be implemented (e.g., emergency response plans be prepared or acquisition and installation of additional emergency response equipment be initiated); and (8) operational requirements (e.g., minimum number of staff on bridge and watches when entering a port in the Sanctuary).
b. Impact to Resources [Part III TOC]
Nearshore coastal resources, within three nautical miles of the coast, could be protected by creating zones around specially environmentally sensitive areas such as ASBS's, rookeries, colonies, haulout areas, and estuaries and sloughs. However, offshore resources, such as cetacean, fish and seabird populations, and foraging grounds may not be adequately protected by such coastal buffers. In addition, coastal resources would still be at risk from large spills within the Sanctuary but outside any proposed zones, that drift onto the coast with onshore currents and winds.
c. Impact to Uses [Part III TOC]
The primary user group affected would be vessel owners and operators. NOAA's regulations would impact these user groups by potentially causing vessels to travel greater distances around the Sanctuary, follow specific operation procedures not usually executed and use special equipment.
Regulation under this alternative may distinguish between restrictions on commercial vessels versus other types of vessels in the Monterey Bay area such as recreational (e.g., speed boats, yachts), fishing (including e.g., kelp cutters) and research (including e.g., geophysical surveys), based on the threats of the vessel type to the resources and qualities of the Monterey Bay area.
Recreational users of the area and commercial fishermen would potentially benefit from such regulations if the action were to reduce the likelihood of spills, groundings and other accidents that may injure aesthetic qualities and natural resources of the Sanctuary.
However, such regulatory action would be taken unilaterally by NOAA without the advice and expertise of the U.S. Coast Guard. For example, USCG current, and proposed regulations address construction standards for vessels as well as officer competency and bridge organization. Given the difficulty in regulating staffing and construction standards for vessels in discrete areas, the on-going USCG study of traffic lanes and proposed regulations, new State and Federal laws, and the speculative nature of the projected vessel traffic increase associated with OCS leasing, it seems premature to propose Marine Sanctuary regulations to deal with these issues. These problems are more effectively dealt with on a nationwide basis in coordination with the international shipping regulatory regime.
J. Fishing, Kelp Harvesting and Aquaculture [Part III TOC]
1. Status Quo (Preferred) [Part III TOC]
a. Existing Regulatory Framework [Part III TOC]
Principal fishing legislation and regulations include: California Fish and Game Code, Fishery Management Plans, Magnuson Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq. Responsible agencies include, the Pacific Fishery Management Council, National Marine Fisheries Service (NOAA), and Department of Fish and Game. (See Appendix C for more information).
b. Impact to Resources [Part III TOC]
Fishing activities are extensive in the Monterey Bay area. The productive fish stocks support an economically valuable fishery. To ensure healthy stocks and minimization of adverse environmental impacts, commercial fisheries are already heavily regulated.
Fishing in Monterey Bay waters is regulated by the groundfish and salmon Fishery Management Plans. In the FMP's, the PFMC establishes catch limits for groundfish and specifies the duration of the fishing season and catch and size limits for salmon. Commercial fishing-gear restrictions are specified for both the groundfish and salmon fisheries. The Magnuson Fishery Conservation and Management Act (MFCMA) provides for enforcement of FMP's prepared by the Pacific Fishery Management Council and approved by the Secretary of Commerce after review by the NMFS.
In addition, the CDF&G enforces State regulations for fishing activities, kelp harvesting and aquaculture (See Appendix C). Recent State initiatives, relevant to certain parts of the Monterey Bay area, include prohibition on the use of drift and set gill nets targeted to specific areas (Figure 40).
In general, fishing activity is extensively regulated to not only ensure continuous production of fish stocks for long-term harvest (Table 25) but also to reduce potential conflict with marine mammals and seabirds.
The gill net fishery has been regulated since 1984 by the State and Federal governments because of the mortality of seabirds and sea otters that became entangled in the nets. Approximately 6 to 15 boats participate in this fishery off Monterey Bay (pers. comm., Marine Resources Division, Monterey Bay area, CDF&G, March 1990). This method of fishing is now restricted to waters deeper than 20 fathoms. In April 1989 the halibut gill net fishing was closed inside 40 fathoms due to the incidental capture of over 40 harbor porpoises (Edward Melvin, pers. comm., 1989). The current regulations on this fishery prevent gill-netters from fishing within 30 fathoms and would effectively move the current gill-net inshore fishery beyond the zone of distribution of shore birds and coastal marine mammals.
Figure 40: State restrictions on commercial fishing
Table 25: Catch restrictions for commercial fish
The 1988 Amendments to the Marine Mammal Protection Act established a five year exemption for commercial fishermen to take marine mammals incidental to their fishing activities. The taking of sea otters was specifically excluded from the five year interim incidental take exemption for commercial fishing operations and no incidental takes are authorized. (Note: Marine mammals, except sea otters, may be taken incidentally to commercial fishing pursuant to 16 U.S.C. § 1383a until October 1993, after which rulemaking pursuant to 16 U.S.C. §§ 1371, 1373 and 1374 may be required.) The amendments require the NMFS to establish an exemption, observer, and reporting system to document incidental captures of marine mammals by fishermen that are expected to take marine mammals. Based on reports of the fishermen, the NMFS is to submit to Congress its recommendations to manage commercial fishing activities in a way that reduces adverse impacts to marine mammals.
The NMFS has registered fishermen in fisheries known to capture marine mammals, including the following fisheries operating in the vicinity of the proposed Monterey Bay NMS: --Gillnet fisheries for thresher shark, angel shark, swordfish, halibut, white sea bass, yellow tail, soupfin shark, white croaker, and bonito/flying fish, and --Purse seine fisheries for herring, anchovy, mackerel, tuna, sardines, and squid.
Fishermen began reporting incidental captures to NMFS under these amendments on July 1, 1989.Results so far for Category I boats, including all large mesh (6" or greater) halibut nets, indicate that, for the 24 sets observed in the Monterey Bay area (out of 622 total for all of California) from July, 1990 to end of December, 1990, 6 harbor seals, 15 california sea lions and 3 northern elephant seals, were killed (NMFS, pers. Comm. April, 1991). Data on seabird mortality from this reporting system is collected by the CDF&G.
The trawler fishery has also been extensively regulated and no trawlers are currently allowed within 3 nautical miles of the coast (pers. comm., Marine Resources Division, Monterey Bay area, CDF&G, March 1990). Approximately 8 boats participate in this fishery using a mixture of otter trawls and roller trawls. No data exists on amount of incidental take of birds and marine mammals from the trawler fishery beyond three nautical miles. It is unlikely that trawling will cause incidental take of marine mammals and seabirds as the gear is only deployed over short periods of time and covers small areas of the ocean floor. Also, this type of activity occurs outside of three nautical miles which is beyond the range of most of the nearshore diving birds and sea otters. Finally, during an experimental period of 5 years, two trawlers were permitted to fish within three nautical miles and during this experimental period there was no incidental take of marine mammals or seabirds (pers. comm., CDF&G, Marine Resources Division, March 1990).
There is almost no data regarding the effects of roller trawling, or the one to two boat trap-fishery, to resources near and on the bottom such as benthic organisms and habitats (Edward Melvin, pers. comm., March, 1990). However, preliminary estimates from the few boats that roller trawl and trap would indicate very minimal impact (pers. comm., CDFG, March 1990).
The CDF&G has management responsibility for the development of mari- and aquaculture under Section 1700(f) of the California Fish and Game Code. The by-catch of Nereocystis leutkeana is restricted to 5% of the entire load. The reproductive part of the plant is located on the surface and harvest is limited. CDF&G manages kelp harvesting and designates specific areas for use. Almost all of the harvesting takes place within a four to five mile area near Point Sur. Currently no studies exist regarding the effects of harvesting this species.
c. Impact to Uses [Part III TOC]
Fishing in the Sanctuary would be regulated other than under the Sanctuary regulatory regime by Federal and State authorities of competent jurisdiction. ("Fishing regulation" means a regulation that is directed specifically at fishing activities or fishing vessels. This does not include a regulation that is applicable to all types of vessels or activities.)
Under the Status Quo fishing would continue without any additional regulation under the Sanctuary regulatory regime. As a result of other sanctuary regulations aimed at improving water quality and fish habitat it is expected that the Sanctuary would have a positive impact on fishing activities.
The proposed final Sanctuary regulations include four regulations that (if written without the exemption) could potentially indirectly affect fishing activities. However, each of the four regulations specifically exempts traditional fishing activities from the scope of the prohibitions to the extent consistent with existing other State and Federal regulations.
The four regulations are: (1) discharges and deposits (Including by fishing vessels) are prohibited except for stated discharges and deposits including ones intended to allow traditional fishing activities; (2) moving, removing, or injuring or attempting to move, remove, or injure a Sanctuary historical resource is prohibited, except incidentally resulting from traditional fishing operations; (3) drilling through, dredging or otherwise altering the seabed of the Sanctuary or constructing, placing or abandoning any structure, material or other matter on the seabed of the Sanctuary is prohibited except resulting incidentally from traditional fishing operations ie., traps and bottom trawls; and (4) taking of marine mammals, sea turtles and seabirds is prohibited except as permitted by regulations promulgated under the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA) and the Migratory Bird Treaty Act (MBTA). Thus each regulation otherwise potentially affecting traditional fishing activities is specifically designed to exclude such activities from the effect of the regulation. However, if in the future NOAA determines that these exemptions are resulting in injury to Sanctuary resources or qualities from aquaculture, kelp harvesting or traditional fishing activities, changes to the Sanctuary regulations would be undertaken pursuant to the Administrative Procedure Act's (APA) notice-and-comment rulemaking process and the applicable requirements of NEPA and the MPRSA.
Kelp harvesting and aquaculture activities would also be unaffected by the regulatory regime. NOAA will work with the CDF&G and kelp harvesting and aquaculture industries if new activities are proposed or increases in current levels to determine the impacts, if any, of the activity on the resources and qualities of the Monterey Bay area.
There are many existing regulations and restrictions on fishing activities in the Monterey Bay area that are designed to protect the long-term health of the fisheries as well as other resources and qualities of the Monterey Bay area. Therefore NOAA does not believe it necessary to promulgate any additional regulations. In its evaluation of this issue, NOAA considered whether, under the present regulatory structure, sufficient protection for Sanctuary resources existed. NOAA has determined, after consultation with the Fish and Wildlife Service, NOAA's National Marine Fisheries Service (NMFS), the Pacific Fisheries Management Council (PFMC) and the California Department of Fish and Game (CDF&G) that fishing in the Sanctuary, including fishing for shellfish and invertebrates, shall not be regulated as part of the Sanctuary management regime. Monterey Bay fish resources are already extensively managed by existing authorities and NOAA does not envision a fishery management role for the Sanctuary at this time. Instead the Sanctuary will provide research results and recommendations to existing fishery management agencies in order to enhance the protection of fishery and other Sanctuary resources.
Furthermore, in its decision advising NOAA to proceed with the preparation of a Draft EIS for the proposed Sanctuary, the Pacific Fisheries Management Council (PFMC) also recommended that the regulation of fishery resources remain under the jurisdiction of the State of California, the National Marine Fisheries Service (NMFS) and the PFMC.
Kelp harvesting and aquaculture have been added to the scope of potential future regulations. There is little data to show whether current levels of activities are negatively impacting the Sanctuary area. There is a concern that future intensive use of areas of the coast for aquaculture may degrade water quality and disrupt benthic habitats as well as impact other user groups. Kelp harvesting may negatively impact kelp bed habitat although little data exists regarding this impact. Addition of these activities to the scope of potential future regulation anticipates any necessary action that the Sanctuary may have to take once data become available and after working with relevant agencies and affected parties.
2. Sanctuary Alternative [Part III TOC]
a. Sanctuary Action [Part III TOC]
Consistent with the provisions of the MPRSA (Section 305(a)(5)) the Sanctuary shall first provide the Pacific Fisheries Regional Management Council (PFMC) with the opportunity to prepare draft regulations for fisheries within the Exclusive Economic Zone should the need arise to protect Sanctuary resources and qualities from specific fishing activities. Any changes to Sanctuary regulations must be undertaken under the APA's notice-and-comment rulemaking process and the applicable requirements of the NEPA and MPRSA. In the future the Sanctuary would work with the fishermen and the local management agencies as well as California Department of Fish and Game and the PFMC to determine any additional management measures that may be necessary to protect the resources and qualities of the Monterey Bay area. Such actions would be submitted in draft for public review and comment on any specific measures taken to address threats from fishing to Sanctuary resources and qualities. Finally an MOA has been prepared between NMFS and NOS regarding fisheries and protection of Sanctuary resources (see Appendix I).
b. Impact to Resources [Part III TOC]
Actions promulgated under this authority would be targeted at protecting specific resources, qualities and habitats shown to be injured by fishing activities, aquaculture or kelp harvesting. Such injury could include but is not limited to destruction of benthic habitat from bottom trawling, incidental take of marine mammals and seabirds from gill-nets, evidence of a reduction in fish stock size, reduction in water quality and disruption of the seabed from aquaculture and negative impacts to sea otter habitat during kelp harvesting operations.
c. Impact to Uses [Part III TOC]
Under this alternative NOAA would work with the affected fishing, aquaculture and kelp harvesting entities to determine the level of impact to their activities. Actions would be taken to minimize negative consequences and burdens while at the same time addressing any threat to Sanctuary resources and qualities.
