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Part
III Table of Contents
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; or
B) 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.
Table
24: Potential impacts of sanctuary regs
Table
24 (Cont.)
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 220ö and a line extending from 2.0 nmi north of Pescadero
Point on a southwesterly heading of 240ö; (2) from mean high
water out to three nmi between a line extending from the Carmel
River mouth on a westerly heading of 270ö and a line extending
due east along latitude 35ö33' 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.
Figure
37: Overflights
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 r |
