[Federal Register Volume 88, Number 164 (Friday, August 25, 2023)]
[Proposed Rules]
[Pages 58123-58145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18271]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 230807-0185]
RIN 0648-BL31
Proposed Chumash Heritage National Marine Sanctuary
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service, National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce.
ACTION: Proposed rule; notification of availability of draft
environmental impact statement and draft management plan; request for
public comment.
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SUMMARY: NOAA proposes to designate Chumash Heritage National Marine
Sanctuary (CHNMS) in the waters along and offshore of the coast of
central California to recognize the national significance of the area's
ecological, historical, archaeological, and cultural resources and to
manage this special place as part of the National Marine Sanctuary
System. The sanctuary boundary would encompass 5,617 square miles
(mi\2\) (4,242 nmi\2\) of submerged lands and marine waters from
Monta[ntilde]a de Oro State Park in San Luis Obispo County to Naples
along the Gaviota Coast in Santa Barbara County. NOAA proposes to
establish the terms of designation for CHNMS and proposes regulations
to implement the national marine sanctuary designation. NOAA is also
publishing a draft environmental impact statement (draft EIS) and draft
management plan, and soliciting public comment on the proposed rule,
draft EIS, and draft management plan.
DATES:
Comments due: NOAA will consider all comments received by October
25, 2023.
Public comment meetings: NOAA will host two in-person public
comment meetings and one virtual public comment meeting on the
following dates and times:
Meeting #1: Monday, September 25, 2023; Time: 5 p.m.;
Location: San Luis Obispo, CA.
Meeting #2: Wednesday, September 27, 2023; Time: 5 p.m.;
Location: Lompoc, CA.
Meeting # 3: Thursday, October 12, 2023; Time: 1 p.m.
Pacific Time; Location: Virtual.
ADDRESSES:
Comments: You may submit comments on this document, identified by
NOAA-NOS-2021-0080, by any of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov
and search for docket NOAA-NOS-2021-0080. Follow the instructions for
sending comments.
Mail: Send any hard copy public comments by mail to Paul
Michel, Regional Policy Coordinator, 99 Pacific Street, Suite 100F,
Monterey, CA 93940.
Public Meetings: Provide oral comments during a public
meeting, as described under DATES. Webinar registration details and
additional information about how to participate in these public scoping
meetings is available at: https://sanctuaries.noaa.gov/chumash-heritage/.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NOAA. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NOAA will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous). Copies
of the proposed rule, draft EIS, and draft management plan can be
downloaded or viewed on the internet at www.regulations.gov (search for
docket # NOAA-NOS-2021-0080). Copies can also be obtained by contacting
the person identified under FOR FURTHER INFORMATION CONTACT.
Meetings: The meetings will be held in the following
locations:
Meeting #1: County of San Luis Obispo Board of Supervisors
Hearing Room, 1055 Monterey Street, San Luis Obispo, CA 93408.
Meeting #2: Dick DeWees Community Center, 1120 West Ocean
Avenue, Lompoc, CA 93436.
Meeting #3: Virtual, please see https://sanctuaries.noaa.gov/chumash-heritage/ for details.
NOAA may substitute a virtual meeting platform rather than a public
meeting if public safety concerns remain to prevent the spread of
COVID-19. NOAA may take audio recordings of the public meetings,
including the public comment portion of the meetings. Please check
https://sanctuaries.noaa.gov/chumash-heritage/ for updated information
on public meetings.
FOR FURTHER INFORMATION CONTACT: Paul Michel, Regional Policy
Coordinator, 99 Pacific Street, Suite 100F, Monterey, CA 93940, 831-
647-6450, [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Background
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate and
protect as national marine sanctuaries areas of the marine environment
that are of special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archaeological, educational, or esthetic qualities. Day-to-day
management of national marine sanctuaries has been delegated by the
Secretary to ONMS. The primary objective of the NMSA is to protect the
resources of the National Marine Sanctuary System.
[[Page 58124]]
NOAA proposes to designate CHNMS in the waters along and offshore
of the coast of central California to recognize the national
significance of the area's ecological, historical, archaeological, and
cultural resources and to manage this special place as part of the
National Marine Sanctuary System. The proposed sanctuary boundary would
encompass 5,617 mi\2\ (4,242 nmi\2\) of submerged lands and marine
waters from Monta[ntilde]a de Oro State Park in San Luis Obispo County
to Naples along the Gaviota Coast in Santa Barbara County. This
boundary reflects NOAA's preferred alternative, which is described in
the draft environmental impact statement (draft EIS) as Alternative 2
(Cropped Bank to Coast) and Sub-alternative 5b (Gaviota Coast
Extension). NOAA has also proposed in the draft management plan a
framework to provide collaborative management with the Chumash and
Salinan tribes in this area for CHNMS.
The specific area proposed for national marine sanctuary
designation includes the coastline of central California from Hazard
Canyon Reef at the north end of Monta[ntilde]a de Oro State Park, south
along the San Luis Obispo County coast and a portion of Santa Barbara
County to approximately two miles south of Dos Pueblos Creek near the
township of Naples along the Gaviota Coast. Roughly 134 miles of the
mainland coast (163 miles if including the shoreline of offshore rocks
and islands) are part of the area proposed for sanctuary designation.
The sanctuary's proposed boundaries also include the offshore marine
waters from the western end of Channel Islands National Marine
Sanctuary (CINMS), northwards to within approximately 2.5 miles of the
southern end of Morro Bay Wind Energy Area (WEA; as referenced in the
Bureau of Ocean Energy Management (BOEM)'s Final Sale Notice for
Pacific Wind Lease Sale 1, 87 FR 64093, October 21, 2022), and then
east and southeast to the point of origin at Hazard Canyon Reef. This
area out to approximately 66 miles (50 nmi) from shore includes
numerous offshore features including the Santa Lucia Bank, portions of
its escarpment, Rodriguez Seamount, Arguello Canyon, and other offshore
features and resources. Coastal watersheds drain into this area via
multiple outlets, including the Santa Maria and Santa Ynez river mouths
and several other coastal streams and rivers. Strong coastal winds
drive seasonal upwelling which fuels the area's high biological
productivity, supporting dense aggregations of marine life.
Specifically, winds offshore of Point Arguello/Point Conception
initiate a powerful upwelling process that nourishes other nearby
productive ecosystems such as CINMS. The presence of a biogeographic
transition zone around Point Conception, where temperate waters from
the north meet waters from the subtropics, creates an area of
nationally-significant biodiversity in sea birds, marine mammals,
invertebrates, and fishes.
For more than 10,000 years, the productive and diverse ecosystems
in the region have been essential to the way of life of Indigenous
peoples in the region, in particular the Chumash, one of the few ocean-
going bands among the First Peoples of the Pacific Coast. The Salinan
tribes have also relied on marine resources along the coast in this
region Tribes' connections to the region include their traditional and
ancestral homelands, customary uses of marine resources for food and
cultural connections, and stewardship of resources and ecosystems
within their ancestral homelands and waters. Coastal landscapes and
seascapes, including viewsheds, are integral and sacred elements of
Native American cultural connections to the region''). Additionally,
during the last glacial maximum, the region's coastline extended beyond
the present-day coast to include now-submerged areas that were likely
inhabited by ancestors of California Tribes before the last sea level
rise. As ocean-going Indigenous people on the California coast, the
Chumash traveled to sea, to the Channel Islands, and along the coast in
traditional redwood plank canoes called ``tomols.'' Coastal Chumash
traditionally harvested an array of marine resources such as abalone
and other shellfish, Olivella shells, fish, kelp and other seaweeds,
and marine mammals. Today, Chumash Peoples undertake ocean voyages in
tomol canoes to honor their ancestors' crossings to the offshore
islands and to continue to honor ceremonial sites within their historic
areas.
The marine environment of the proposed sanctuary has provided and
continues to provide a special sense of place to its changing coastal
communities and visitors because of its historical, archaeological,
cultural, aesthetic, and biological resources. The Indigenous peoples
along this coast were the first people living in present-day California
to have contact with Europeans when Spanish explorers arrived on the
Pacific Coast in the mid-1500s. Subsequent waves of Spanish, Mexican,
English, Russian, and American explorers and settlers traveled to this
region over the next 300 years. The region was shaped by development of
a mission system from San Diego to San Francisco, the California gold
rush in the mid-1800s, ranching for cattle and the hide/tallow trade,
military training and operations, a coastal and offshore oil boom, and,
more recently, coastal and offshore renewable energy development.
Maritime shipping has been prominent in this portion of California,
with treacherous weather and currents leading to over 200 reported ship
and aircraft wrecks; at least 20 prominent shipwrecks alone have been
found in the area between Point Conception and Point Sal. Two
shipwrecks that lie within the proposed sanctuary--the Yankee Blade and
the McCulloch--have been listed on the National Register of Historic
Places; the Montebello, also on the National Register, lies just beyond
the proposed sanctuary's boundaries.
Coastal tourism, recreational activities, and commercial fishing
are prominent components of the coastal and marine economy in this
region, particularly in San Luis Obispo County. Coastal and offshore
energy and military activities are more prominent in the portion of
this region along the Santa Barbara County coastline. More public
access is available for the portion of the area proposed for the
sanctuary in San Luis Obispo County than in Santa Barbara County, where
access is more limited due to the large military base and private land
holdings along this stretch of coast. Marine research is a small but
growing sector of the ocean uses in this area.
B. Need for Action
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate national
marine sanctuaries to meet the purposes and policies of the NMSA,
including:
``to identify and designate as national marine sanctuaries
areas of the marine environment which are of special national
significance and to manage these areas as the National Marine Sanctuary
System'' (16 U.S.C. 1431(b)(1));
``to provide authority for comprehensive and coordinated
conservation and management of these marine areas, and activities
affecting them, in a manner which complements existing regulatory
authorities'' (16 U.S.C. 1431(b)(2));
``to facilitate to the extent compatible with the primary
objective of resource protection, all public and private uses of the
resources of these marine areas not prohibited pursuant to other
authorities'' (16 U.S.C. 1431(b)(6));
``to develop and implement coordinated plans for the
protection and
[[Page 58125]]
management of these areas with appropriate Federal agencies, State and
local governments, Native American tribes and organizations,
international organizations, and other public and private interests
concerned with the continuing health and resilience of these marine
areas'' (16 U.S.C. 1431(b)(7)); and,
``to create models of, and incentives for, ways to
conserve and manage these areas, including the application of
innovative management techniques'' (16 U.S.C. 1431(b)(8)).
The nationally-significant natural resources, physical features and
habitats, and the cultural and historical resources within the proposed
sanctuary warrant long-term protection and management to reduce threats
that would adversely affect their historical, cultural, archaeological,
recreational, and educational value. For example, many threatened or
endangered species, such as blue whales, snowy plovers, black abalone,
white sharks, and leatherback sea turtles, rely on habitats, physical
features, or prey found in the proposed sanctuary rely on habitats,
physical features, or prey found in the proposed sanctuary. This area
also contains hundreds of known or suspected shipwrecks of historical
importance, including several on the National Register of Historic
Places. Moreover, this region and its abundant resources have been home
to coastal, ocean-going Indigenous tribes for tens of thousands of
years, and submerged village sites may exist along paleoshorelines in
the submerged lands of the proposed sanctuary. Several key threats to
these natural, cultural, and historical resources include: various
levels of human development and activity from: offshore energy
development; decommissioning and removal of coastal and offshore
industrial facilities; sound, discharges and whale strikes from vessel
traffic; plastics, marine debris and pollutants from coastal runoff;
and most of all, acute and cumulative impacts of climate change.
Accordingly, NOAA is proposing to designate this area as a national
marine sanctuary to: (1) manage and protect nationally-significant
natural resources, physical features and habitats, and cultural and
historical resources through a regulatory and nonregulatory framework;
(2) document, characterize, monitor, study, and conserve these
resources; (3) provide interpretation of their natural, cultural,
historical, and educational value to the public; (4) promote public
stewardship and responsible use of these resources for various purposes
to the extent compatible with the sanctuary's principal goal of
resource protection; (5) develop a coordinated, community-based,
ecosystem-based management regime with partner Federal agencies, State
and local governments, and Indigenous tribes and tribal organizations;
and (6) develop and carry out an innovative collaborative management
structure to involve Indigenous communities, including federally-
recognized tribes and other tribal groups and organizations, in
important management programs and initiatives of the sanctuary.
Designating a new national marine sanctuary along the coast of
central California would allow NOAA to complement and supplement
existing Federal and State resource management programs, policies, and
regulations. For instance, proposed discharge regulations to establish
more comprehensive water quality protection across the geographic range
proposed for sanctuary protection under NMSA would bolster existing
authorities under the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.).
NOAA has well-regarded and successful programs to conduct outreach,
education, and communication that would recognize and promote this
area's nationally-significant natural, historical, and cultural
properties. NOAA could assist the region's scientific expertise and
technological resources to enhance ongoing research, and provide a hub
for the coordination of these activities. Through its focus on various
initiatives benefiting the marine and coastal economy, NOAA's
designating the area as a national marine sanctuary would enhance and
facilitate public stewardship of natural, historical, and cultural
resources. Lastly, designating this proposed national marine sanctuary
would provide expanded conservation of key resources within the
California Current Large Marine Ecosystem, and create a collaborative
framework to involve Indigenous communities in region-wide management.
C. Designation Process
1. Notice of Intent To Designate a National Marine Sanctuary
In July 2015, a broad community consortium led by the Northern
Chumash Tribal Council submitted a nomination through the Sanctuary
Nomination Process. The nomination identified opportunities for NOAA to
expand upon existing local and State efforts to study, interpret, and
manage the area's unique cultural and biological resources. The
nomination also highlighted the maritime history and cultural heritage
of the Chumash tribal nation, who, along with other Native American
tribes, have deep cultural connections to this area of central
California. NOAA completed its review of the nomination and, on October
5, 2015, added the area to the inventory of successful nominations
eligible for designation. All nominations submitted to NOAA can be
found at: https://www.nominate.noaa.gov/nominations.
On November 10, 2021, NOAA began the sanctuary designation process
for the proposed CHNMS by publishing a notice of intent (86 FR 62512)
to prepare a draft EIS as well as other pertinent designation materials
such as a draft management plan, terms of designation, and this
proposed rule, as required by NMSA and the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et seq.). The notice of intent also
announced NOAA's intent to fulfill its responsibilities under the
requirements of the National Historic Preservation Act (NHPA; 54 U.S.C.
300101 et seq.) and Executive Order 13175.
Following the notice of intent, NOAA conducted three virtual public
meetings, hearing oral comments from 100 participants, and received
thousands of written comments during an 83-day public comment period.
The majority of comments supported the goals of sanctuary designation,
including protecting the cultural heritage of Chumash tribal
communities and protecting the coastal California ecosystem's health
and resilience. Many commenters also noted the importance of managing
the area to promote recreation and tourism to support the local
economy, to foster education and research programs, and to establish a
shared management approach with Indigenous communities. Commenters also
voiced concerns about overlapping existing and potential uses of the
area such as fishing and offshore energy development. Overall, comments
covered a diversity of other topics including views on: the proposed
boundary and name for the proposed sanctuary; alternatives to consider
for the boundary and name for the proposed sanctuary; activities that
should be regulated; what non-regulatory programs the proposed
sanctuary should have; and different ways to structure collaborative or
co-management with Native American tribes. More detail about the
scoping comments are contained in the draft EIS, section 3.11 and
appendix A.
2. Development of Proposed Terms of Designation and Proposed
Regulations
Section 304(a)(4) of the NMSA requires that the terms of
designation
[[Page 58126]]
include the geographic area proposed to be included within the
sanctuary; the characteristics of the area that give it conservation,
recreational, ecological, historical, research, educational, or
aesthetic value; and the types of activities that would be subject to
regulation by the Secretary to protect these characteristics. Section
304(a)(4) also specifies that the terms of designation may be modified
only by the same procedures by which the original designation was made.
The purpose and need for the sanctuary provide the overarching
basis for developing the proposed regulations. NOAA developed this
proposed rulemaking and the proposed sanctuary terms of designation
based on information received during public scoping comments,
cooperating agency review, and government-to-government consultation
with Tribal Nations under Executive Order 13175, as well as on
information from analysis of issues in the draft EIS, interagency
coordination, and internal staff analysis and expertise. Scoping
comments from tribal representatives, governmental agencies, users such
as the fishing industry and offshore wind energy industry, other
interested organizations, and the public addressed the need for
regulations and exemptions for certain activities. NOAA consulted with
the Pacific Fishery Management Council as required under NMSA section
304(a)(5). NOAA also considered existing regulations for other west
coast national marine sanctuaries, including Monterey Bay, Greater
Farallones, Channel Islands, and Olympic Coast national marine
sanctuaries, and developed terms of designation and a set of proposed
regulations that are generally consistent with other sanctuary
provisions in similar resource areas. In developing the proposed
regulations, NOAA evaluated resource sensitivity, industry practices,
and feasibility of implementing certain regulations, to balance
resource protection regulations with existing and future compatible
activities that may occur in the sanctuary.
A detailed discussion of the proposed regulations is contained
below in section II, subsections A through I. The proposed terms of
designation are in section VI below and appendix B to the draft EIS,
and would ultimately be incorporated as an appendix to the sanctuary
management plan upon completion of designation.
3. Development of Draft Management Plan and Framework for Tribal
Collaborative Management
When designating a national marine sanctuary, NOAA also develops
and presents a management plan that describes the management activities
and initiatives that it proposes to conduct. The draft management plan
for the proposed designation of CHNMS describes actions that NOAA will
take to manage the sanctuary, summarized in 11 action plans, such as
research and monitoring, education and outreach, sanctuary resource
protection, and sanctuary operations, as well as practical programs to
address certain issue areas, such as climate change, offshore energy,
water quality, and wildlife disturbance. NOAA has developed the draft
management plan for the largest boundary alternative as noted in the
notice of intent and analyzed in the draft EIS as the ``Initial
Boundary Alternative,'' so the public may evaluate the full suite of
management measures for the proposed sanctuary; however, the final
management plan could include fewer or reduced management actions if a
boundary smaller than the Initial Boundary Alternative is ultimately
designated.
In addition to engaging in government-to-government consultation
with the only federally-recognized tribe in the area, the Santa Ynez
Band of Chumash Indians (SYBCI), as described in section V,
Classification, below, NOAA has conducted meetings with non-federally-
recognized tribes and tribal organizations along the central California
coast, including the Northern Chumash Tribal Council, yak tityu tityu
yak ti[lstrok]hini Northern Chumash Tribe, Coastal Band of the Chumash
Nation, Xolon Salinan Tribe, Salinan Tribe of Monterey and San Luis
Obispo Counties, Wishtoyo Chumash Foundation, and Barbare[ntilde]o/
Venture[ntilde]o Band of Mission Indians. Close, deliberate
collaboration between NOAA and these tribes has been an essential
element of this sanctuary designation process. NOAA intends to
incorporate input from interested federally-recognized Indian tribes
and all interested tribal entities, into the sanctuary designation
process, as well as sanctuary management after the proposed
designation. The draft management plan includes an Indigenous Cultural
Engagement Action Plan that describes how sanctuary management would
involve tribal perspectives and collaboration in a number of specific
sanctuary management actions.
Additionally, NOAA is proposing a framework for collaborative
management with Native American tribes and tribal groups for the
proposed CHNMS. A detailed explanation of that proposed framework and
an outline of opportunities for tribal collaboration in management of
the proposed sanctuary are found in the introduction to the draft
management plan. In summary, the proposed framework, built upon
extensive input from SYBCI, non-federally-recognized tribes, and tribal
organizations in this area of coast, envisions relying on government-
to-government consultation with federally-recognized Indian tribes; an
Intergovernmental Policy Council involving federally-recognized Indian
tribes and the State of California; a Sanctuary Advisory Council (to be
established after designation) that has one or more voting seats for
federally-recognized Indian tribes and one or more voting seats to
represent the knowledge, history, and culture of Indigenous
communities; and an Indigenous Cultures Advisory Panel, as a working
group of the Sanctuary Advisory Council, to provide advice to the
Sanctuary Advisory Council, with coordination and communication with
other groups as appropriate, about cultural issues important to these
coastal tribes. NOAA also envisions a role for one or more non-profit
foundations to support joint projects between NOAA and federally-
recognized Indian tribes and/or non-federally recognized tribes. The
proposed framework was presented to SYBCI and other tribes in meetings
during August 2022 and separately shared with the public in a workshop
held on August 26, 2022. NOAA welcomes further comment on the proposed
framework, as described in the draft management plan, through this
rulemaking process.
4. Draft Environmental Impact Statement
In accordance with NEPA (42 U.S.C. 4321 et seq.) and the NMSA (16
U.S.C. 1434), NOAA is releasing a draft EIS for the proposed national
marine sanctuary designation in conjunction with the publication of
this proposed rule. The draft EIS (https://sanctuaries.noaa.gov/chumash-heritage) describes the purpose and need for the proposed
action of designating a national marine sanctuary in the coastal and
offshore waters of central California--the purpose of this proposed
regulatory action--and evaluates the potential environmental
consequences of the proposed designation of a national marine
sanctuary; identifies a range of alternatives, including the preferred
alternative; includes a comparison of the beneficial and adverse
impacts among alternatives; and provides an assessment of resources and
uses in the area.
[[Page 58127]]
The draft EIS analyzes the Initial Boundary Alternative (7,573
mi\2\; 5,718 nmi\2\; 152 miles of mainland coast), which generally
represents the boundary identified in the notice of intent (86 FR
62512) but with some adjustments that are described in section 3.2 of
the draft EIS, and four alternatives that are smaller than the Initial
Boundary Alternative, including:
Alternative 1, Bank to Coast, which focuses management
from the Santa Lucia Bank to the coast (6,098 mi\2\; 4,605 nmi\2\; 152
miles of mainland coast);
Alternative 2, Cropped Bank to Coast (5,553 mi\2\; 4,194
nmi\2\; 115 miles of mainland coast), largely copies Alternative 1,
however it excludes the waters from Cambria to Hazard Canyon Reef,
which would be the most direct path to shore for the installation of
subsea electrical transmission lines from the Morro Bay WEA;
Alternative 3, Diablo to Gaviota Creek, also excludes more
(relative to Alternative 2) northern waters that BOEM has identified
for potential offshore wind development by removing the Diablo Canyon
Call Area from the boundaries of the proposed sanctuary, and focuses
management on the area from the Diablo Canyon Call Area and nuclear
power plant south to Gaviota Creek (5,952 mi\2\; 4,494 nmi\2\; 99 miles
of mainland coast), but it includes offshore waters west of the Santa
Lucia Bank;
Alternative 4, Combined Smallest, excludes both the
western and northern offshore areas focusing management on the smallest
area (4,476 mi\2\; 3,380 nmi\2\; 99 miles of mainland coast).
The draft EIS also analyzes two small expansion areas:
Sub-alternative 5a, Morro Bay Estuary (2.5 mi\2\; 1.9
nmi\2\; 11 miles of mainland coast), would include the tidally-
influenced portions of Morro Bay Estuary and could be added to the
Initial Boundary Alternative or Alternative 1 (but would not be added
to alternatives 2-4);
Sub-alternative 5b, Gaviota Coast Extension (64 mi\2\; 48
nmi\2\; 18 miles of mainland coast), would include in the proposed
sanctuary the State waters from Gaviota Creek to the township of
Naples, a potential addition to any of the action alternatives.
The draft EIS also includes a ``No Action Alternative'' in which
NOAA would not designate the area as a national marine sanctuary.
NOAA has identified as the Agency-Preferred Alternative in the
draft EIS the combination of Alternative 2 and Sub-alternative 5b. This
is the boundary alternative that is reflected in this proposed rule.
Based on public comments received on the draft designation
documents and NOAA's experience administering the national marine
sanctuary program, pursuant to NEPA and the Administrative Procedure
Act, NOAA may choose to select a new alternative in the final rule and
final EIS that is within the geographic and regulatory scope of these
alternatives currently considered in the draft EIS, and that is a
logical outgrowth of this proposed rule. See, for example, sections
3.1.1 and 3.9.2 of the draft EIS.
The draft EIS evaluates and considers the potential impacts of
implementing the proposed regulations that would be adopted as part of
the preferred alternative and conducting the various management
programs and initiatives described in the draft management plan.
The draft EIS focuses on eight issue areas: physical resources;
biological resources; commercial fishing and aquaculture; cultural
heritage and maritime heritage resources; socioeconomics, human uses,
and environmental justice; offshore energy; marine transportation; and
homeland security and Department of Defense (DoD) activities.
The BOEM, the Bureau of Safety and Environmental Enforcement
(BSEE), the DoD and the Santa Ynez Band of Chumash Indians (SYBCI) are
all cooperating agencies for the NEPA review.
5. Agency-Preferred Alternative
In accordance with NEPA (42 U.S.C. 4321 et seq.), NOAA is
identifying as its preferred alternative the combination of Alternative
2, ``Cropped Bank to Coast,'' and Sub-alternative 5b, ``Gaviota Coast
Extension.'' Section 5.4.9 of the draft EIS provides a map (Figure 5-1)
and additional information regarding the reasons for identifying this
alternative as the Agency-Preferred Alternative. NOAA has met with
cooperating agencies for this action and considered their input. NOAA
has also conducted formal government-to-government consultation with
the SYBCI, and has held informational meetings with other bands of the
Chumash and two bands of the Salinan Tribe. NOAA developed its
preferred alternative from among the suite of alternatives analyzed
after considering their views as well as those of cooperating agencies,
including the SYBCI, the input from outreach meetings, and after
weighing the NEPA analysis.
The Agency-Preferred Alternative (i.e., preferred alternative)
would provide numerous beneficial impacts on various issue areas, such
as physical resources; biological resources; commercial fishing and
aquaculture; cultural heritage and maritime heritage resources;
socioeconomics, human uses, and environmental justice; offshore energy;
and homeland security and DoD activities; largely through sanctuary
regulations that would limit the scale and scope of offshore
development activities and other human uses that could harm natural,
historical, and cultural resources. NOAA has considered the potential
adverse impacts of the preferred alternative and finds them to be not
significant while also allowing an acceptable balance between resource
use and conservation of sanctuary resources. This alternative would
also limit adverse impacts on offshore wind development and would
lessen adverse impacts on marine transportation compared to the Initial
Boundary Alternative analyzed in the draft EIS.
In identifying the preferred alternative, NOAA has considered which
boundary alternatives NOAA could effectively manage while allowing for
compatible uses and providing increased protection and conservation for
sanctuary resources, which is the proposed sanctuary's principal
purpose. As such, the preferred alternative reflects NOAA's
consideration of key issues, including those pertaining to subsea
electrical transmission cables and the name of the proposed sanctuary.
The sanctuary boundary proposed under the preferred alternative would
allow NOAA to focus its management on key areas historically important
to the Chumash Peoples and natural resources important to their
heritage, while appropriately managing for other resources and uses.
NOAA's identification of Alternative 2 rather than Alternative 1 as
part of the preferred alternative (in addition to Sub-alternative 5b,
discussed below) is based on two principal concer ns about designating
the area from Monta[ntilde]a de Oro north to Cambria as a sanctuary.
The first concern, described in more detail in section 5.4.9 of the
draft EIS, derives from BOEM's estimation that offshore wind
development in the Morro Bay WEA could require up to 20-30 subsea
electrical transmission cables and possibly floating substations in the
area offshore of Morro Bay. While NOAA's proposed regulations contain a
permit process that could be used to allow for the placement and
continued presence of subsea electrical transmission cables within the
sanctuary boundaries (for additional details please refer to part III,
section D below), provided that the applicable
[[Page 58128]]
criteria and requirements are met and that any permit conditions can be
satisfied by developers, the disturbance of submerged lands and
associated potential impacts on biological resources that could result
from development on this scale would likely be unprecedented in a
national marine sanctuary. In excluding this area, NOAA anticipates
developers will be able to plan infrastructure for this area, which may
minimize the potential requests to use other parts of the proposed
sanctuary. Therefore, Alternative 2 would exclude some of the areas
where subsea electrical transmission cables are expected to be placed
from the proposed sanctuary. NOAA has evaluated the impacts of the
proposed action on infrastructure in the draft EIS. NOAA additionally
requests comment on any planned infrastructure in the area, as well as
any potential impacts (including cost) that the sanctuary may have on
this infrastructure.
The second consideration for NOAA's choice of Alternative 2 as part
of the preferred alternative relates to the lack of agreement regarding
the name for the portion of the proposed sanctuary from roughly Cambria
to south of Morro Bay. During the scoping process and informational
meetings, the Salinan bands objected to naming the sanctuary
``Chumash'' in that area which they identify as being part of their
ancestral homeland. Chumash bands have also considered this section of
coast part of their ancestral homeland. The Xolon Salinan have
expressed support for sanctuary designation of this area, provided it
had a different name. Chumash bands were unwavering in their view that
the entirety of the sanctuary should be named ``Chumash Heritage.''
Alternative 2 is responsive to Indigenous community input by
delineating a geographic option that would ameliorate these concerns.
Including the Gaviota Coast Extension (Sub-alternative 5b) within
the preferred alternative would provide additional protection to
important coastal resources. It would include waters off three popular
State beaches and parks--Gaviota, Refugio and El Capitan--and include
all of Kashtayit and Naples State Marine Conservation Areas within the
sanctuary. It would include additional beaches, kelp forests, and rocky
and soft substrate reefs. As discussed in detail in section 4.5 of the
draft EIS, that portion of the Gaviota Coast was home to numerous,
large Chumash villages at the time of European first contact.
Conservation of these resources is an important benefit to including
this sub-alternative in the preferred alternative. Offshore structures
including those necessary for existing oil and gas production in this
area, such as pipelines and cables related to the Santa Ynez Unit,
could be accommodated via the certification process included in the
proposed regulations. Repair, replacement, or removal of the structures
necessary for existing oil and gas production could be considered via
an ONMS authorization process. For more details regarding the proposed
permitting, authorization, and certification processes for existing oil
and gas production and repair, maintenance, and removal of oil and gas
structures, please refer below to section III.D.1., as well as section
III.H.
II. Proposed Terms of Designation for Chumash Heritage National Marine
Sanctuary
Section 304(a)(4) of NMSA as amended, 16 U.S.C. 1434(a)(4),
requires that the terms of designation be described at the time a new
sanctuary is designated, including the geographic area proposed to be
included within the sanctuary, the characteristics of the area that
give it conservation, recreational, ecological, historical, research,
educational, or aesthetic value, and the types of activities that will
be subject to regulation to protect those characteristics.
The following represents the proposed terms of designation:
Preamble
Under the authority of the NMSA, approximately 5,600 mi\2\ (4,200
nmi\2\) of the coast of central California's San Luis Obispo and Santa
Barbara counties are hereby designated as a National Marine Sanctuary
for the purpose of providing long-term protection and management of the
ecological, cultural, and historical resources and the conservation,
recreational, scientific, educational, and aesthetic qualities of the
area.
Article I: Effect of Designation
The NMSA authorizes the issuance of such regulations as are
necessary and reasonable to implement the designation, including
managing and protecting the ecological, cultural, and historical
resources and the conservation, recreational, scientific, educational,
and aesthetic qualities of Chumash Heritage National Marine Sanctuary
(the ``Sanctuary''). Section 1 of article IV of these terms of
designation lists those activities that may have to be regulated on the
effective date of designation, or at some later date, in order to
protect Sanctuary resources and qualities. Listing an activity does not
necessarily mean that it will be regulated. However, if an activity is
not listed it may not be regulated, except on an emergency basis,
unless section 1 of article IV is amended by the same procedures by
which the original Sanctuary designation was made.
Article II: Description of the Area
CHNMS covers approximately 5,600 mi\2\ (4,200 nmi\2\) in central
California. The Sanctuary's shoreline is approximately 130 miles long
along the mainland, and 163 miles long when also counting the shoreline
of offshore rocks and islands. The boundary begins at the mean high
water line (MHWL) at Hazard Canyon Reef in Monta[ntilde]a de Oro State
Park, in San Luis Obispo County, and extends to the south along the
MHWL to approximately two miles east of Dos Pueblos Canyon near the
township of Naples along the Gaviota Coast, in Santa Barbara County.
The boundary then shifts due south offshore to the State waters line,
then to the west along the State waters line to approximately the
outfall of Gaviota Creek, then in a southwest direction along the
western end of Channel Islands National Marine Sanctuary, southward to
include Rodriguez Seamount and shifting to the northwest in an arc
reaching approximately 47 miles due west of Purisima Point and another
arc reaching a distance approximately 54 miles due west of Morro Rock,
then approximately 2.5 miles to the north, then approximately 15 miles
due east, and finally to the southeast approximately 39 miles to the
point of origin at MHWL at Hazard Canyon Reef. The private marina at
Diablo Canyon Power Plant and Port San Luis are not included in the
Sanctuary. The Sanctuary includes offshore waters and seafloor features
such as Rodriguez Seamount, Arguello Canyon, and the Santa Lucia Bank.
The boundary coordinates are defined by regulation (see 15 CFR 922.230
and appendix A to 15 CFR part 922, subpart V).
Article III: Special Characteristics of the Area
For well over 10,000 years, First Peoples along North America have
resided on the coast and in inland valleys adjacent to central
California. Caves and other village sites at the nearby Channel Islands
indicate occupation in this region as much as 13,000 years before
present. At that time, due to glaciation at northern latitudes, the sea
level was as much as 10 miles offshore from the present coastline.
Paleoshorelines may exist in this area that could provide further
evidence of early human occupation. The Native Americans who live in
this
[[Page 58129]]
coastal area today, the Chumash and Salinan, can trace generations of
family lineages in this region, that, when coupled with other
historical accounts and archaeological data, show this coast and ocean
area have supported their people, cultures, and heritage for thousands
of years.
The special characteristics of the coast east of Point Conception,
consisting of a south-facing coast with a channel sheltered by offshore
islands, allowed Chumash to develop and make use of the plank canoe,
called a ``tomol,'' for fishing and trade with other Chumash groups.
Chumash villages north of Point Conception could not make use of the
plank canoe in the rough waters and instead relied on the abundance of
shellfish in this area and reed canoes. There were approximately 14
Chumash villages within the area of the sanctuary at the time of
contact with Europeans, nearly 500 years ago. The largest Chumash
village on the California coast at that time was ``Mikiw,'' located on
the west bluff of Dos Pueblos Canyon. Most of the inhabited sites were
located at the mouths of rivers or along the seashore where there was
an abundance of food. The range of sites documented along or near the
Sanctuary's coast includes rock art, shrines, village sites, camp
sites, cemeteries, organic remains, evidence of trade systems, and
evidence of various forms of subsistence, including hunting, fishing,
and extraction.
Serial use and development along this coastline, beginning with
Indigenous peoples, then Spanish exploration and occupation, Russian
fur trading, ranching and the trade for hides and tallow, discovery of
gold, commercial fishing, and onshore and offshore oil and gas
development have all had a hand in shaping this region's coast and
human use of resources. All of these uses have been dependent on marine
transportation, and as a result over 200 ship and aircraft wrecks are
recorded in this area, including several of national significance such
as the Yankee Blade. Commercial fishing for numerous abundant fish
stocks and commercial fishermen are also part of the rich maritime
heritage in the central coast region.
The natural resources of the ocean have been a principal element of
most of the human occupation and exploitation of the region. Strong and
persistent coastal winds drive upwelling, an oceanographic process
critical to the highly productive marine ecosystem. Large kelp forests,
vast sandy beaches, rocky shorelines, shallow and deep reefs, and
coastal wetlands are interconnected, co-dependent biological
communities prominent in this region. Important, large-scale features
include the Santa Lucia Bank, a highly productive, approximately 1,000-
square mile area in the heart of the Sanctuary, and thriving deep sea
communities at Rodriguez Seamount and in Arguello Canyon. These
productive waters complement other protected portions of the California
Current by serving as critical foraging habitat for huge populations of
shearwaters from New Zealand, humpback whales born offshore of Central
America, leatherback sea turtles that migrate from and back to
Indonesian islands, and albatross from Hawaii. More sedentary, local
species depend on healthy communities in the Sanctuary, including the
endangered snowy plover and black abalone, and commercially-important
fish species like Dungeness crab, sablefish, spot prawn, squid, salmon,
and lingcod. An estimated 33 species of marine mammals are found in the
area, 18 of which can be seen on a regular basis. The Sanctuary is
considered a seabird hot spot, with a higher richness of bird species
than other sanctuaries offshore California. At least 400 species of
fish have been documented in the area, which is also a higher richness
of species than in nearby areas, likely because the Sanctuary includes
warmer waters south and east of the ecological transition zone around
Point Conception--Point Arguello and colder waters to the north.
The nationally significant ecological transition zone in the area
around Point Conception--Point Arguello, where species more common in
sub-tropical waters to the south meet with species more common in
colder temperate waters to the north, is a central feature of the
Sanctuary. The northern range of many warmer water species and the
southern range of many colder water species meet in the area between
Point Conception and Point Arguello. Increasing ocean temperatures and
other impacts from climate change intensify the need to study
biogeographic shifts in this area and affirm the importance of
protecting the habitats on which these species depend.
Rodriguez Seamount, 38 nmi southwest of Point Conception, formed
10-12 million years ago through volcanic activity. It rises more than a
mile above the seafloor to a relatively shallow depth of around 2,000
ft. below sea level. Scientists consider it to be relatively rare in
that it may once have been an island, rising to possibly 200 ft. above
sea level; due to sea level rise and seafloor subsidence, the seamount
is now fully submerged. From its time as an island, it has remnants of
sandy beach features and from its time as a seamount, it has large
coral and sponge colonies. Preliminary studies indicate a high
percentage of invertebrate species as well as fish species found on
Rodriguez Seamount that are not found on other nearby seamounts. Some
surveys have uncovered substantial aggregations of coral colonies, with
large individuals likely decades old, indicating a low level of
disturbance to date. A special management zone for Rodriguez Seamount
has been designated by Sanctuary regulations to allow for special
protection in the water column 500 ft. above the seamount and to
complement regulations adopted separately under the Magnuson-Stevens
Fishery Conservation and Management Act (MSA) to protect benthic
habitats.
The area contains dramatic coastlines consisting of rocky
shorelines, large bluffs, and sweeping sandy beaches. Other than an
approximately 10-mile stretch of urban development along the coast from
Port San Luis through Oceano, most of the 134 miles of Sanctuary
coastline is undeveloped due to State and county park ownership, a
large stretch owned by the U.S. Government as a military installation,
and private landholdings of large and small ranches or dispersed
single-family dwellings. This lack of development creates a sense of
wildness and highly-valued aesthetics of a natural coastal setting
worthy of national marine sanctuary designation.
Article IV: Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation, including
prohibition, as may be necessary to ensure the protection and effective
management of the ecological, cultural, historical, conservation,
recreational, scientific, educational, or aesthetic resources or
qualities of the area:
a. Exploring for, developing, or producing oil, gas, or minerals
(e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous
ores, or any other solid material or other physical matter of
commercial value) within the Sanctuary;
b. Discharging or depositing, from within or into the boundary of
the Sanctuary, or from beyond the boundary of the Sanctuary, any
material or other matter;
c. Taking, removing, moving, catching, collecting, harvesting,
feeding, injuring, destroying, attracting, possessing, or causing the
loss of, or attempting to take, remove, move, catch,
[[Page 58130]]
collect, harvest, feed, injure, destroy, attract, or cause the loss of,
a marine mammal, sea turtle, bird, historical resource, or other
Sanctuary resource;
d. Drilling into, dredging, or otherwise altering the submerged
lands of the Sanctuary; or constructing, placing, or abandoning any
structure, material, or other matter on or in the submerged lands of
the Sanctuary;
e. Flying a motorized aircraft above the Sanctuary;
f. Operating a vessel (i.e., water craft of any description) within
the Sanctuary;
g. Aquaculture or kelp harvesting within the Sanctuary;
h. Introducing or otherwise releasing from within or into the
Sanctuary an introduced species; and,
i. Interfering with, obstructing, delaying, or preventing an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the NMSA or any regulation or permit
issued under the NMSA.
Listing an activity here means that Secretary of Commerce can
regulate the activity, after complying with all applicable regulatory
laws, without going through the designation procedures required by
paragraphs (a) and (b) of section 304 of the NMSA, 16 U.S.C. 1434(a)
and (b). No term of designation issued under the authority of the NMSA
may take effect in California State waters within the Sanctuary if the
Governor of California certifies to the Secretary of Commerce that such
term of designation is unacceptable within the review period specified
in the NMSA.
Section 2. Emergencies
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or to minimize the
imminent risk of such destruction, loss, or injury, any and all
activities, including those not listed in section 1, are subject to
immediate temporary regulation, including prohibition.
Article V: Effect on Leases, Permits, Licenses, and Rights
Pursuant to section 304(c)(1) of the NMSA, no valid lease, permit,
license, approval, or other authorization issued by any Federal, State,
or local authority of competent jurisdiction, or any right of
subsistence use or access, may be terminated by the Secretary of
Commerce or designee as a result of this designation or as a result of
any Sanctuary regulation if such authorization or right was in
existence on the effective date of this designation. The Secretary of
Commerce or designee, however, may regulate the exercise (including,
but not limited to, the imposition of terms and conditions) of such
authorization or right consistent with the purposes for which the
Sanctuary is designated.
In no event may the Secretary or designee issue a permit
authorizing, or otherwise approve: (1) The exploration for, development
of, or production of oil, gas, or minerals within the Sanctuary except
for existing oil and gas production of existing reservoirs under
production prior to the effective date of Sanctuary designation from
Platform Irene and Platform Heritage; (2) the discharge of primary-
treated sewage except for regulation, pursuant to section 304(c)(1) of
the Act, of the exercise 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 dredged material
within the Sanctuary other than at sites authorized by the U.S.
Environmental Protection Agency (EPA) prior to the effective date of
designation. The disposal of dredged material does not include the
beneficial use of dredged material. Any purported authorizations issued
by other authorities after the effective date of Sanctuary designation
for any of these activities within the Sanctuary shall be invalid.
Article IV does not authorize the direct regulation of lawful
fishing activities within the Sanctuary, such as setting catch quotas,
establishing spatial closures for fishing, or setting fishing seasons.
However, all activities listed in article IV could apply to a person
engaged in the act of fishing, such as but not limited to vessel
operations, wildlife disturbance, discharges, introduction of an
introduced species, or disturbance of cultural or historical resources.
Aquaculture and kelp harvesting are not subject to this limitation and
are subject to regulation under these terms of designation. Fishing in
the Sanctuary may be regulated by other Federal or State authorities of
competent jurisdiction, and designation of the Sanctuary shall have no
effect on any fishery management regulation, permit, or license issued
thereunder.
Article VI: Alteration of This Designation
The terms of designation, as defined under section 304(a)(4) of the
NMSA, may be modified only by the same procedures by which the original
designation is made, including public hearings, consultations with
interested Federal, State, Tribal, regional, and local authorities and
agencies, review by the appropriate congressional committees, and
approval by the Secretary of Commerce, or his or her designee.
[End of terms of designation]
III. Summary of Proposed Regulations
A. Adding New Subpart V
NOAA is proposing to amend 15 CFR part 922 by adding a new subpart
(subpart V) that contains site-specific regulations for the proposed
sanctuary. This subpart would include the proposed boundary, contain
definitions of common terms used in the new subpart, identify
prohibited activities and exceptions, and establish procedures for
certification of existing uses and permitting otherwise prohibited
activities.
B. Proposed Sanctuary Boundary
NOAA proposes to designate Chumash Heritage National Marine
Sanctuary, consisting of an area of approximately 5,600 square miles
(mi\2\) (4,200 square nautical miles (nmi\2\)) of coastal and ocean
waters along the central coast of California and the submerged lands
thereunder. The northern boundary would commence at Hazard Canyon Reef
within Monta[ntilde]a de Oro State Park at the mean high water line
(MHWL) and extend for 134 miles south along the MHWL through the
remainder of San Luis Obispo County coast, excluding the private marina
at Diablo Canyon Power Plant and Port San Luis (at the port's boundary
for International Regulations for Preventing Collisions at Sea
(COLREGS) demarcation line (33 CFR 80.1130)), and then further south
and east to include the coast of western Santa Barbara County to
approximately two miles east of Dos Pueblos Canyon along the Gaviota
Coast near the township of Naples. The boundary then shifts due south
offshore to the State waters line, to the west along the State waters
line to approximately Gaviota Creek, then in a southwest direction
along the western end of CINMS, southward to include Rodriguez Seamount
and shifting to the northwest in an arc reaching approximately 47 miles
due west of Purisima Point and another arc reaching a distance
approximately 54 miles due west of Morro Rock, then approximately 2.5
miles to the north, then approximately 15 miles due east, and finally
to the southeast approximately 39 miles to the point of origin at MHWL
at Hazard Canyon Reef.\1\
---------------------------------------------------------------------------
\1\ The proposed boundary would bisect Hazard Canyon Reef at
MHWL. The detailed legal boundary description is included in Sec.
922.230 and the coordinates are located in 15 CFR part 922, subpart
V, appendix A.
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[[Page 58131]]
C. Definitions
This proposed rule incorporates and adopts common terms defined in
the national regulations at 15 CFR 922.11. In addition, NOAA proposes
to include two site-specific definitions.
NOAA has proposed to define ``beneficial use of dredged material''
to distinguish between suitable dredge material that is discharged into
the sanctuary for the purpose of protecting or restoring habitat of the
sanctuary, which could be permitted, versus disposal of dredge material
at a new disposal site within the sanctuary for purposes other than
habitat protection or restoration, which would not be permittable.
Dredged material eligible for this definition can come from a public
harbor adjacent to the sanctuary, which for the Agency-Preferred
Alternative would mean Port San Luis. Beneficial use of dredged
material is not disposal of dredged material.
NOAA is proposing a definition for the ``Rodriguez Seamount
Management Zone'' to define the special marine area immediately on top
of, around, and adjacent to the Rodriguez Seamount. This definition is
necessary because NOAA is proposing a regulation that specifically
prohibits the collection or other injury of any sanctuary resource
below 1,500 ft. water depth in this area from any activity other than
from lawful fishing. This corresponds to the water depth about 500 ft.
above the very top of the seamount. Existing fishing regulations,
separately established under the Magnuson-Stevens Fishery Conservation
and Management Act (MSA), already restrict bottom trawling in much of
the Rodriguez Seamount Management Zone. This special area, entirely
within the boundaries of the proposed sanctuary, is bounded by geodetic
lines connecting a heptagon generally centered on the top of the
Rodriguez Seamount, and consists of approximately 570 mi\2\ (430
nmi\2\) of ocean waters and the submerged lands thereunder. The
northeast corner of this zone is located approximately 27 mi southwest
of Point Conception off the coast of Santa Barbara County. Exact
coordinates for the Rodriguez Seamount Management Zone boundary are
provided in appendix B to subpart V.
D. Prohibited and Regulated Activities
NOAA is proposing to supplement and complement existing management
of this area by proposing the following regulations in Sec. 922.232 to
protect sanctuary resources and qualities.
1. Prohibition on Exploring for, Developing, or Producing Oil, Gas, or
Minerals
The central California coast has hosted offshore oil and gas
development for over 60 years and the area proposed for designation as
a national marine sanctuary has hosted oil and gas development for
nearly 40 years. There have been oil spills from platforms and
pipelines in this area, and spills from onshore development and onshore
pipeline transportation, all of which have caused significant
environmental harm. Additional information about these spill incidents
is contained in section 4.7 of the draft EIS. NOAA is proposing to
prohibit exploration, development, and production of offshore oil and
gas resources within the sanctuary to reduce the risk of offshore
spills from oil and gas development in the area. Continued oil and gas
production of existing reservoirs under production prior to the
effective date of sanctuary designation from Platform Irene (as part of
the Point Pedernales Unit development) and Platform Heritage (as part
of the Santa Ynez Unit development), including well abandonment, and
including transportation in pipelines of product to shore, would be
allowed to continue after sanctuary designation until those fields are
exhausted and/or the developer ends operation. However, this regulation
would prevent development of new reservoirs from these existing
platforms.
Constructing and operating offshore platforms and pipelines also
can cause direct impacts on natural, historical, and cultural
resources, particularly from disturbance to the seafloor and benthic
species. Those impacts would also be prevented because this regulation
would not allow new oil and gas exploration, development, or
production. Any construction, repair, replacement, or removal of
existing pipelines would require a ONMS authorization or other approval
in order to allow disturbance to the submerged lands.
Most if not all of the platforms and pipelines within the sanctuary
are likely to be decommissioned and removed within 5-10 years of
sanctuary designation. The prohibition on new oil and gas development
would not preclude the removal of these structures and restoration, if
necessary, of any damage caused by removal, although a sanctuary
permit, authorization, or other approval would be required in order to
allow disturbance to the submerged lands during decommissioning,
removal, and restoration activities. NOAA would be integrally involved
in the planning and conduct of such decommissioning, removal, and
restoration activities for structures within the sanctuary.
This prohibition would also not allow for development, including
exploratory activities, of any seafloor minerals. While seafloor mining
has not been proposed in this area, this regulation would ensure that
the disturbance to benthic habitat and species likely to result from
seafloor mining would not occur in the sanctuary.
2. Prohibition on Discharges
This proposed prohibition on discharges has three main elements:
prohibition on any discharge within or into the sanctuary; discharge
from beyond the sanctuary boundary that subsequently enters and injures
sanctuary resources; and discharges from cruise ships. Each is
explained in separate paragraphs below. All three sub-elements of this
prohibition are consistent with discharge prohibitions in adjacent
national marine sanctuaries.
The proposed prohibition on discharges within or into the sanctuary
is proposed in recognition that various substances can be discharged
from vessels or from infrastructure or individuals along the shoreline
that can harm sanctuary resources or quality. The proposed discharge
regulations would bolster existing authorities such as the Clean Water
Act (CWA; 33 U.S.C. 1251 et seq.) that provide some, yet incomplete,
protection of resources from the adverse effects of discharges.
Establishing a cohesive regulatory framework across the full range of
the geography proposed for sanctuary protection would provide value to
boaters and others using sanctuary waters. Section 4.2.1 of the draft
EIS contains a detailed discussion of water quality and discharges that
constitute key sources of water pollution in the area, and a brief
summary of key points is provided here. While sewage is largely well-
regulated from onshore facilities, and while the EPA has established a
No Discharge Zone within three miles of the California coastline,
NOAA's proposed prohibition would complement this regulatory framework
and apply throughout the entire geographic region of the proposed
sanctuary; it would also provide additional enforcement authority to
protect sanctuary resources. Moreover, NOAA would commit staff time
towards education and outreach to help promote compliance with this
important regulation. Furthermore, the prohibition would extend
throughout the sanctuary to ensure discharge of sewage from vessels
does not cause acute or
[[Page 58132]]
cumulative impacts on natural resources or water quality.
Oil discharged from vessels or from shore can cause acute toxicity
in organisms, and can foul feathers of seabirds leading to illness or
death. Discharging other debris from vessels, by accident or on
purpose, can lead to long-term impacts on resources. A chronic
accumulation of plastics in marine ecosystems, for instance, can lead
to an accumulation of plastic in marine organisms including those that
are eventually ingested by humans.
NOAA is proposing some exceptions for this prohibition consistent
with those exceptions at adjacent sanctuaries. For instance, NOAA is
proposing to except discharge of fish, fish parts, chumming materials,
or bait used in and resulting from lawful fishing activities within the
sanctuary. NOAA is also proposing to except discharge of sewage waste
that has been treated by a Type I or Type II marine sanitation device,
as these systems provide effective treatment for sewage as to mitigate
any impact their discharge can have on marine resources. Normal vessel
operations can also involve washing down the deck or the anchor, which
is exempted provided the wash down qualifies as ``clean'' per the
definition at 15 CFR 922.11. There are also normal discharges from
operating motorized vessels that are excepted, such as clean vessel
engine cooling water, clean vessel generator water, and clean bilge
water, as well as exhaust from an engine or generator. Provided that
these discharges are clean, they may be discharged within or into the
sanctuary. The more common threat to sanctuary resources can come from
oily bilge water, soiled by oil that drips or leaks into an engine
compartment. Oily bilge water may not be discharged into the sanctuary
under this proposed prohibition, and would have to be disposed of at
onshore pumpout stations. NOAA will coordinate with harbormasters to
ensure existing onshore pumpout facilities remain operable, and, if
necessary, to explore if other facilities are needed.
NOAA is proposing to except the disposal of dredged material within
the proposed sanctuary at disposal sites approved by the EPA prior to
designation. The proposed sanctuary boundaries do not include the two
known EPA-approved dredge disposal sites used for Morro Bay dredging.
NOAA is not aware of any other such sites. Nonetheless, this exception
would allow an agency to demonstrate, after sanctuary designation, that
a disposal site approved by the EPA existed prior to sanctuary
designation.
Within the proposed sanctuary, NOAA would also consider allowing
via permit the beneficial use of material removed from dredging Port
San Luis, specifically to protect or restore habitat such as a sandy
beach. The beneficial use of dredged material for habitat protection or
restoration purposes is different from the disposal, or discarding, of
dredged material. A proposed project involving the beneficial use of
dredged material from Port San Luis may be eligible for approval by
NOAA if the project demonstrates a sanctuary habitat protection or
restoration purpose and if the permit requirements and criteria are
met.
NOAA is proposing an exception for routine discharges from U.S.
Coast Guard operations. One part of the exception would allow U.S.
Coast Guard vessels that lack sufficient holding tank capacity and lack
a Type I or II marine sanitation device to discharge sewage and non-
clean graywater beyond 3 nmi from shore. A second part of the exception
would allow discharge of ammunition, pyrotechnics, and other material
directly related to training from beyond 12 nmi from shore from U.S.
Coast Guard vessels and aircraft conducting training activities for
search and rescue and live ammunition fire in the sanctuary. NOAA
recognizes that these exceptions are necessary to ensure existing U.S.
Coast Guard patrols, operations, and training can be maintained in the
new sanctuary. U.S. Coast Guard patrol vessels provide a tremendous
benefit to NOAA by assisting with enforcement of national marine
sanctuary regulations. Moreover, the U.S. Coast Guard is an essential
element of marine safety to all mariners operating offshore in central
California, and they also provide enforcement of other Federal laws,
conduct drug smuggling interdiction activities, and protect the
homeland. ONMS has developed plans with U.S. Coast Guard District 11
leadership through informal discussions and NMSA section 304(d)
consultation to limit discharges into other west coast national marine
sanctuaries and anticipates similar approaches could be explored for
U.S. Coast Guard operations in the proposed sanctuary. Therefore, NOAA
considers the proposed discharge exception for U.S. Coast Guard vessels
appropriate.
Finally, NOAA is proposing an exception that would allow discharges
incidental and necessary to normal oil and gas production activities
from Platforms Irene and Heritage into reservoirs already in
production. These could include drill cuttings and mud to maintain well
pressure and control during drilling as well as other materials
necessary to force oil and gas products from one part of the reservoir
into producing wells. The last step in the life of an oil and gas well
is to abandon the well, with the operator pumping cement into the well
to prevent release of hydrocarbons in the future; this activity would
be part of the proposed exception. Use of the depleted reservoirs for
injection or storage of any material not considered incidental and
necessary to normal oil and gas production would not be covered by the
exception yet could be considered via proposed permit processes.
Discharges from beyond the boundary of the sanctuary would also be
prohibited when those discharges subsequently enter the sanctuary and
harm a sanctuary resource or quality. An example of this could be a
spill from an onshore oil pipeline that flows down a creek, enters the
sanctuary at the MHWL, and injures seabirds, fish, algae, or the
sanctuary seafloor or other habitat. Unlike a discharge directly within
or into the sanctuary, for a discharge to violate this prohibition, the
discharge must injure a sanctuary resource or quality. This prohibition
could also be applied to a spill or other discharge that originated
from the marine environment and subsequently entered the sanctuary and
injured a sanctuary resource or quality. The same exceptions that are
proposed for the sub-element prohibiting discharge directly within or
into the sanctuary would also apply for a discharge from beyond the
boundary, except for the exception for dredge disposal and the
exception for discharges incidental and necessary to oil and gas
production. NOAA intends that dredge disposal discharges beyond the
boundary of the sanctuary need to be designed in such a manner that
they do not enter the sanctuary and injure sanctuary resources or
qualities.
The third sub-element of this discharge regulation would prohibit
discharge from cruise ships. Across most national marine sanctuaries,
NOAA has applied consistent regulations that allow for fewer exceptions
for cruise ship discharges than for other vessel discharges within or
into sanctuaries because cruise ships can generate very large volumes
of waste or other discharges. Even if treated, the volume of sewage and
graywater, for instance, on a cruise ship of more than 2,000 passengers
can reach several million gallons a day. Sewage discharge may contain
bacteria or viruses that can cause disease in humans and wildlife, and
can cause excessive growth and decomposition of
[[Page 58133]]
oxygen-depleting plant life, resulting in harm or death to organisms.
Section 4.2.1 of the draft EIS provides additional detail on these
sorts of discharges. The only exceptions proposed for cruise ships
discharging within CHNMS would be for clean vessel engine cooling
water, clean vessel generator cooling water, vessel engine or generator
exhaust, clear bilge water, or anchor wash; in essence, discharges
directly linked to propelling and operating the vessel itself.
3. Prohibition on Drilling Into or Altering the Submerged Lands
The seabed is a large and important habitat in the ecosystem within
the proposed sanctuary, and NOAA proposes to prohibit activities that
would drill into, dredge, or otherwise alter or disturb the submerged
lands of the sanctuary. This prohibition would include constructing,
placing or abandoning any structure, material, or other matter on the
submerged lands. This is a common regulatory prohibition that NOAA has
applied to most national marine sanctuaries. The purpose is to prevent
activities that cause harm to habitat and species on or near the
seafloor, such as drilling into or dredging into the seafloor. The
proposed regulation includes exceptions for certain activities
including disturbance during the conduct of lawful fishing activities,
kelp harvesting, or anchoring a vessel. NOAA also proposes to except
from this prohibition the installation of an aid to navigation, as well
as the repair, replacement, or other maintenance on existing
structures, specifically docks, piers, breakwaters, or jetties. Also,
NOAA proposes an exception for maintenance dredging of the entrance
channels for Port San Luis in existence at the time the sanctuary is
designated. Vandenberg Space Force Base periodically conducts dredging
near its coastal loading dock, with onshore disposal of the sand, but
that dredging disturbance would be exempted with the general exemption
for existing Department of Defense activities. NOAA has also proposed
an exception to allow for drilling, maintaining, and abandoning wells
incidental and necessary to normal oil and gas production activities
within or into existing reservoirs in production at the time of
sanctuary designation from Platforms Irene or Heritage.
In proposing these exceptions, NOAA has considered both the
anticipated level of disturbance to the submerged lands and the purpose
of the specified activities, most of which are related to maritime
safety. The proposed exceptions are intended to further the policy of
the NMSA to facilitate public and private uses of sanctuary resources
to the extent compatible with the primary objective of resource
protection. However, in order to conserve and protect populations of
coral and sponge colonies, NOAA proposes to not apply any of these
exceptions within the Rodriguez Seamount Management Zone. The only
exception that would apply within the Rodriguez Seamount Management
Zone is the exception for seabed disturbance conducted during lawful
fishing activity as regulated under the MSA. Note, however, that most
of the Rodriguez Seamount Management Zone has been designated by the
Pacific Fishery Management Council as groundfish essential fish habitat
under the MSA, and areas in and around the zone are currently closed to
bottom trawling under regulations at 50 CFR part 660, subpart C.
Certain currently proposed or contemplated future activities could
result in disturbance to the submerged lands in the area proposed for
sanctuary designation. Procedures described below in the section on
General Permits, Authorizations, Certifications, and Special Use
Permits could be used to allow such an activity that is otherwise
prohibited, provided that the applicable criteria and requirements are
met and that any permit conditions can be satisfied by developers.
Examples of such activities that would be prohibited by the proposed
seabed disturbance regulation unless a sanctuary general permit, ONMS
authorization, or certification were issued include construction and
operation of subsea electrical transmission cables from wind
development in Federal waters beyond the sanctuary, or construction and
operation of wind platforms in State waters near Vandenberg Space Force
Base. Disturbance of submerged lands during repair and maintenance of
existing structures not listed as being exempted, such as oil pipelines
to shore from Platform Irene, or trans-oceanic fiber-optic
telecommunications cables, would also require a permit, authorization,
or certification from NOAA before proceeding.
With respect to subsea electrical transmission cables, BOEM cannot
issue leases, rights of way, or easements for wind development within
national marine sanctuaries per the Outer Continental Shelf Lands Act
(OCSLA), 43 U.S.C. 1337(p)(10). As discussed in the draft EIS, NOAA
intends to coordinate with BOEM on potential integration of NMSA
authorities and BOEM's OCSLA authorities for the purposes of specific
wind development projects contemplated adjacent to and within the
proposed sanctuary. Although the details of any individual permit or
authorization would be project-specific and would depend upon NOAA's
consideration of the permit application(s) for any particular project,
NOAA believes that the most likely permitting approach for activities
associated with subsea electrical transmission cables is as follows.
To allow the site assessment and characterization
activities that must be conducted prior to cable installation, NOAA
could consider issuing a sanctuary general permit for research purposes
under 15 CFR part 922, subpart D, and 15 CFR 922.233 of the proposed
rule.
For the installation of a subsea electric transmission
cable on the outer continental shelf within the proposed sanctuary,
NOAA could consider issuing an ONMS authorization of a permit issued by
the U.S. Army Corps of Engineers (USACE) under section 10 of the Rivers
and Harbors Act (33 U.S.C. 403), under 15 CFR 922.36 and 922.232(e) of
the proposed rule.
For installation of cables within State waters of the
proposed sanctuary, NOAA could similarly consider authorizing a lease
issued by the State Lands Commission or a coastal development permit
issued by the California Coastal Commission, under 15 CFR 922.36 and
922.232(e) of the proposed rule.
To authorize the continued presence of the cable on or in
the seabed within the proposed sanctuary, NOAA could then consider
issuing a special use permit under section 310 of the NMSA.
To allow any necessary maintenance and repair associated
with the cable that might cause a disturbance of the submerged lands of
the sanctuary, NOAA could consider several potential options. These
could include relying on the initial ONMS authorization of the USACE
section 10 permit and/or State permit for the cable installation
(depending on the duration of that permit and whether it included
future repair and maintenance), or issuing an ONMS authorization of a
separate USACE and/or State permit that is issued specifically for the
maintenance and repair activity.
NOAA has coordinated with USACE regarding this approach in Federal
waters, and intends to continue that coordination throughout the
designation process and as plans for cabling in the area are developed.
Regular coordination with State agencies has occurred in the past and
NOAA would conduct specific coordination meetings related to cable
permitting as necessary. That said, NOAA's proposed regulations
[[Page 58134]]
contain several permitting mechanisms (see section H of this preamble
below and section 3.2.2 of the draft EIS) that would provide NOAA with
flexibility in its approach to any individual permitting request.
Decommissioning and removal activities that would disturb the
sanctuary seabed, such as oil and gas platform removal or
decommissioning of the outfall at the Diablo Canyon Power Plant, would
require a permit, authorization, or certification from NOAA before
proceeding. Further, NOAA has already commented, or could comment in
the future as appropriate, to Federal, State, and local agencies
leading regulatory review of these actions; also, some of these
examples have been discussed with BOEM and BSEE, as cooperating
agencies under NEPA for this designation, given the relevance to their
authorities.
4. Prohibition on Possessing, Moving, Removing, or Injuring or
Attempting To Possess, Move, Remove, or Injure a Sanctuary Historical
Resource
NOAA is proposing to prohibit possessing, moving, removing, or
injuring, or attempting to possess, move, remove, or injure a sanctuary
historical resource, as defined at 15 CFR 922.11. This prohibition aims
to reduce the risk of direct harm to sanctuary historical and cultural
resources. ``Moving'' and ``injuring'' would include any changes to the
position or state of historical resources, as well as covering,
uncovering, moving, or taking artifacts from a shipwreck, even if the
artifacts are not located directly on a shipwreck. Sanctuary historical
resources include cultural and archaeological resources and artifacts.
This sanctuary prohibition would apply within both State and Federal
waters of the sanctuary and is necessary to ensure conservation of
historical resources on the more than 200 ship and aircraft wrecks
thought to exist in the sanctuary, as well as other known or unknown
historical resources, such as resources that may be associated with
submerged Native settlements.
5. Prohibition on Taking Any Marine Mammal, Sea Turtle or Bird Within
or Above the Sanctuary
This prohibition is proposed to ensure conservation of important
populations of marine mammals, sea turtles, and birds that are found in
or above the sanctuary. The regulation would not apply should a person
be authorized to take a marine mammal, sea turtle, or bird by NOAA or
the U.S. Fish and Wildlife Service pursuant to the Marine Mammal
Protection Act (MMPA), the Endangered Species Act (ESA), or the
Migratory Bird Treaty Act (MBTA). The term ``take'' including
``taking'' is defined in the national sanctuary regulations at 15 CFR
922.11.
6. Prohibition on Possessing Within the Sanctuary (Regardless of Where
Taken, Moved, or Removed From) Any Marine Mammal, Sea Turtle, or Bird
This regulation is a companion to the preceding prohibition and is
proposed to restrict a person's ability to possess any marine mammal,
sea turtle, or bird within the sanctuary, except as allowed by the
MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
7. Prohibition on Deserting a Vessel Aground, at Anchor, or Adrift in
the Sanctuary or Leaving Harmful Matter Aboard a Grounded or Deserted
Vessel in the Sanctuary
Other adjacent national marine sanctuaries, similar to the proposed
CHNMS, have considerable boating traffic along the coast and from local
harbors. NOAA has responded to dozens of vessel sinkings, groundings,
and discharges each year in national marine sanctuaries throughout the
National Marine Sanctuary System, many with significant response and
restoration costs and damage to sanctuary resources. Along with
responding to those incidents, NOAA has adopted this regulation as a
means to prevent a vessel's sinking, grounding, or other incident,
given that prevention is much less expensive than responding to
incidents and can optimally prevent impacts and damage to sanctuary
resources as well as to private property. NOAA proposes prohibiting
deserting a vessel aground within the sanctuary for the same reasons.
In the definition of the term ``deserting'' in the national sanctuary
regulations at 15 CFR 922.11, NOAA has clarified conditions that
constitute deserting a vessel. Finally, with this proposed regulation
NOAA also proposes prohibiting leaving harmful matter aboard a grounded
or deserted vessel in the sanctuary; the intent would be to minimize
additional damage to sanctuary resources. The sanctuary regulations at
15 CFR 922.11 also define ``harmful matter.''
8. Prohibition on Attracting Any White Shark Within the Sanctuary
White sharks function as a key species in coastal ecosystems in
three broad areas in the world, with California and Baja California
forming one of those population centers. Several different areas within
the proposed sanctuary have important populations of adult and sub-
adult white sharks, and may offer linkage to other white shark
aggregation areas in CINMS, Monterey Bay National Marine Sanctuary
(MBNMS), and Greater Farallones National Marine Sanctuary (GFNMS).
Including this proposed regulation would provide similar levels of
protection to these central California white shark aggregation sites
within CHNMS by preventing harm or behavioral disturbance to white
sharks. The proposed regulation would apply the definition of
``attract'' in the national sanctuary regulations at 15 CFR 922.11. The
prohibition against attracting white sharks is intended to address
harassment and disturbance related to human interaction from research
activities directed at white sharks or shark diving programs known
generally as adventure tourism, or from recreational boaters who may
approach a white shark. NOAA has concluded these activities can degrade
the natural environment, impacting the species as a whole, or adversely
impacting individual sharks from repeated encounters with humans and
boats. A similar prohibition against attracting great white sharks was
promulgated for MBNMS in 1996 and GFNMS in 2008, and NOAA has not had
issues at those sanctuaries with lawful fishing activities
inadvertently attracting white sharks. NOAA would have the ability to
issue permits for activities that involve attracting a white shark if
the permit procedures and requirements are met, as described below.
9. Prohibition on Moving, Removing, Taking, Collecting, Catching,
Harvesting, Disturbing, Breaking, Cutting or Otherwise Injuring a
Sanctuary Resource Located Below 1,500 ft. Water Depth Within the
Rodriguez Seamount Management Zone; Prohibition on Possessing any
Sanctuary Resource, the Source of Which Is Below 1,500 ft. Water Depth
With the Rodriguez Seamount Management Zone
NOAA is proposing a regulatory framework for Rodriguez Seamount
that is similar to its approach for Davidson Seamount in MBNMS. With
the CHNMS regulations, NOAA proposes to create the Rodriguez Seamount
Management Zone to ensure conservation of diverse and rare resources
found on the seamount, including coral and sponges and other
invertebrates, or living in the water column immediately above it. The
seamount has seafloor features that suggest it may have been exposed
above sea level millions of years ago, and its uncommon geomorphologic
and benthic habitat features could be damaged without further
protection. The top of the seamount is at approximately 2,000
[[Page 58135]]
ft. water depth, so under the proposed regulation there would be a
buffer of 500 ft. above the top of the seamount to protect organisms
that migrate above the seamount diurnally.
This prohibition would not apply to lawful fishing activity that is
regulated under the MSA and its implementing regulations. NOAA, through
conservation actions under the MSA, has prohibited bottom trawling on
and around Rodriguez Seamount since June 2006. Additional protections
provided to the seamount by the proposed sanctuary regulations would
protect the high biodiversity and deep-sea habitat on the seamount.
Long life histories and slow growth of deep-sea communities mean that
these habitats have long recovery times following injuries and adverse
impacts; additional protections for resources 1,500 ft. below sea level
(roughly 500 ft. above the top of the seamount) would add critical
additional risk mitigation for these sensitive resources.
10. Prohibition on Introducing or Otherwise Releasing From Within or
Into the Sanctuary an Introduced Species, Except Striped Bass Released
During Catch and Release Fishing Activity
NOAA is proposing to prohibit introducing or otherwise releasing an
introduced species into the sanctuary. NOAA has adopted the same
introduced species regulation at other national marine sanctuaries
offshore of California to prevent the incidental or deliberate release
of an introduced species into the sanctuary. Releases and subsequent
spreading of introduced species have devastated marine ecosystems
across the globe; most notably the alga Sargassum horneri has become a
disruptive introduced species at nearby CINMS and has the potential to
cause ecological and economic harm. This and other introduced species
are potentially spread by vessels and have proliferated in the Santa
Barbara Channel. Removing or otherwise eradicating introduced species
once they have established local populations is extremely difficult;
hence NOAA prefers to rely on prevention measures and deterring
introducing such species within national marine sanctuaries. The
proposed exemption for catch and release of striped bass recognizes the
State of California has size limits for striped bass, an introduced but
now established species harvested by recreational fishermen. Releasing
a striped bass would not be a violation of this prohibition.
11. Prohibition on Interfering With, Obstructing, or Preventing an
Investigation, Search, or Other Enforcement Activity
NOAA proposes a regulation, similar to regulations at other local
national marine sanctuaries, to prohibit interfering with various
sanctuary enforcement activities. This regulation would assist in
NOAA's enforcement of the sanctuary regulations and strengthen
sanctuary management.
E. Exemption for Emergencies
The proposed prohibitions for CHNMS would not apply to any activity
necessary to respond to emergencies that threaten life, property, or
the environment. However, this proposed exemption for emergencies would
not apply to the prohibitions on the development of oil, gas, or
minerals; attracting a white shark; introducing an introduced species;
or interfering with an investigation or other enforcement activity.
F. Department of Defense Exemption
NOAA has proposed a broad exemption to allow existing activities
carried out or approved by the various branches of the Department of
Defense as specifically identified in chapter 4.9 or appendix I to the
draft EIS. NOAA has coordinated with the Department of Defense, a
cooperating agency under NEPA, to include in appendix I to the draft
EIS a list of the activities that occur in the area proposed for
sanctuary designation.
The area overlaps with the Point Mugu sea range and is adjacent to
Vandenberg Space Force Base, which conducts both military missions from
the base as well as hosting commercial space launches. All launches
from the base or within the proposed sanctuary that are carried out or
approved by DoD would be included in this exemption. With respect to
commercial and civil launches from the base and associated activities,
DoD has informed NOAA that:
DoD approval is required for these activities.
DoD conducts NEPA reviews for these activities. Other
Federal agencies, such as the Federal Aviation Administration and/or
the U.S. Coast Guard, may be cooperating agencies for purposes of these
NEPA reviews.
DoD also conducts all required natural and cultural
resource consultations for these activities.
Civil partners and commercial providers conducting these
activities are required to comply with DoD best management practices.
NOAA advises that based on public comments received, additional
coordination with DoD, and NOAA's experience administering the national
marine sanctuary system, pursuant to NEPA and the Administrative
Procedure Act, the final rule and final EIS may reflect any
modifications to the DoD exemption that are a logical outgrowth of the
proposed rule and that do not constitute a substantial change to the
proposed action relevant to environmental concerns.
New DoD activities that would not otherwise be prohibited by the
CHNMS regulations would not require an amendment to the list of
exempted activities. For those new DoD activities that would otherwise
be prohibited by the CHNMS regulations, NOAA has proposed a process
whereby the ONMS Director, upon consultation with the appropriate
counterpart at the Department of Defense, can also exempt such new
activities carried out by the Department of Defense.
An activity is considered to be a new activity, and not covered by
the exemption for existing Department of Defense activities, if, as
determined by NOAA, the activity is new or modified in any way
(including change in location, frequency, duration, or technology used)
from the activities described or listed in section 4.9 or appendix I,
and the activity is likely to cause adverse effects on sanctuary
resources or qualities that are substantially greater or different in
kind than the effects of the activities described or listed in section
4.9 or appendix I.
A new activity that is not covered by the exemption for existing
Department of Defense activities could be conducted if a sanctuary
general permit or ONMS authorization, as applicable, were issued for
the proposed activity.
In addition, NOAA commits to working with the Department of Defense
to consider exempting new activities from the CHNMS regulatory
prohibitions through subsequent rulemaking procedures, for instance in
subsequent management plan and regulatory review processes for CHNMS.
Any changes to the list of exempted Department of Defense activities
could only occur after compliance with all applicable laws, such as the
Administrative Procedure Act and NEPA, as necessary, and after public
notice and comment, as applicable.
NOAA is willing to work with the Department of Defense to create a
mechanism whereby new activities that are likely to injure sanctuary
resources, and thereby also require section 304(d)
[[Page 58136]]
consultation, could be handled in a single, consolidated review.
This proposed regulation also contains language common to
regulations for other national marine sanctuaries about obligations of
the Department of Defense in the event an incident results in
threatened or actual destruction, loss of, or injury to a sanctuary
resource or quality. NOAA recognizes that this broad exemption is
necessary to ensure military readiness for the Department of Defense to
conduct existing training, operations, and military readiness
activities in the area proposed to be designated as a national marine
sanctuary. The United States military has been able to maintain
readiness and conduct training and other operations in other national
marine sanctuaries based on similar broad exemptions.
G. Emergency Regulations
NOAA is not proposing any sanctuary-specific regulation to allow
for development of emergency regulations to address urgent threats to
sanctuary resources. Rather, the emergency regulation provision
included in the regulations of general applicability, which apply to
all national marine sanctuaries (see 15 CFR 922.7), would also apply to
CHNMS. Emergency regulations are used when there is an imminent risk to
sanctuary resources and a temporary regulation or prohibition is
necessary to prevent or minimize the destruction or loss of those
resources, or otherwise minimize the imminent risk of such destruction,
loss, or injury.
H. General Permits, Certifications, Authorizations, and Special Use
Permits
1. Sanctuary General Permits
NOAA is proposing to include authority to issue sanctuary general
permits to allow certain activities that would otherwise violate
prohibitions in the proposed sanctuary's regulations. NOAA's proposal
would not allow issuance of a sanctuary general permit for oil, gas, or
mineral exploration, development, or production; introducing an
introduced species; or interfering with an investigation or other
enforcement activity; or as further limited in Sec. 922.232(f) of the
proposed regulations. National marine sanctuary program-wide
regulations describe, at 15 CFR 922.30, different purposes for which a
sanctuary general permit could be issued, three of which would apply to
this proposed sanctuary: ``Research--activities that constitute
scientific research or scientific monitoring of a national marine
sanctuary resource or quality,'' ``Education--activities that enhance
public awareness, understanding, or appreciation of a national marine
sanctuary or national marine sanctuary resource or quality,'' and
``Management--activities that assist in managing a national marine
sanctuary.''
NOAA is proposing to add to the list at Sec. 922.30, an additional
purpose specific to CHNMS for which a sanctuary general permit could be
issued: ``Native American cultural or ceremonial activities--activities
within Chumash Heritage National Marine Sanctuary that will promote or
enhance local Native American cultural or ceremonial activities; or
will promote or enhance education and training related to local Native
American cultural or ceremonial activities.'' NOAA is proposing this
general permit category to address a need identified during scoping.
Specifically, NOAA received a scoping comment letter stating that
indigenous peoples should be allowed to conduct the following cultural
activities in the proposed sanctuary, subject to all other applicable
law: collecting culturally-significant resources including bones,
feathers, shells, animals, and plants; burials of cremated remains in
biodegradable receptacles; survey and other work at submerged
indigenous living sites, like villages or caves, including collecting
artifacts like stone bowls or pestles. ONMS may be able to allow some
of these activities to occur within the proposed sanctuary under
existing authorities and the current general permit categories at Sec.
922.30 (e.g., a research or education permit may be appropriate to
authorize survey activities at submerged indigenous living sites);
however, ONMS is proposing this additional general permit category for
CHNMS to ensure that activities to promote or enhance Native American
cultural or ceremonial activities may be allowed to occur within the
proposed sanctuary, consistent with the purpose and need of the
proposed action. The proposed permit category would be recipient
neutral; i.e., any person, as that term is defined in 15 CFR 922.11,
would be able to apply for a permit under the proposed category.
However, permits may only be issued for those activities that will
promote or enhance local Native American cultural or ceremonial
activities or education and training related to such activities. NOAA
has determined that this proposed permit category would further the
purposes and policies of the NMSA by facilitating uses of sanctuary
resources compatible with the primary objective of resource protection,
and by enhancing public awareness, understanding, appreciation, and
wise and sustainable use of the historical, cultural, and
archaeological resources of the proposed sanctuary.
The proposed regulations would require compliance with 15 CFR part
922, subpart D, in the national regulations for permit application
processes, review procedures, amendments, and other permitting
stipulations. These national permitting regulations include a list of
factors NOAA considers in deciding whether or not to issue the permit,
such as whether the activity must be conducted within the sanctuary, or
whether the activity will be compatible with the primary objective of
protection of sanctuary resources and qualities. NOAA would be able to
impose specific terms and conditions through a permit as appropriate.
2. Certifications
Pre-existing activities specifically authorized by a valid Federal,
State, or local lease, permit, license, or rights of subsistence use or
access might be occurring within the proposed CHNMS area that would
otherwise be prohibited by sanctuary regulations. Therefore, NOAA
proposes including Sec. 922.234 to describe the process by which it
could certify an existing valid lease, permit, license, or right of
subsistence use or access within the proposed sanctuary boundaries,
consistent with 16 U.S.C. 1434(c) and 15 CFR 922.10. In compliance with
the NMSA, the regulations at Sec. 922.234 would state that
certification is the process by which such activities existing prior to
the designation of the sanctuary that violate sanctuary prohibitions
may be allowed to continue. NOAA may, however, further regulate the
exercise of such activities by applying additional terms and conditions
as a condition of the certification to achieve the purposes for which
the sanctuary would be designated. Requests for certifying permitted
existing uses would have to be received by NOAA within 90 days of the
effective date of the designation.
3. ONMS Authorizations
Pursuant to Sec. 922.36 in the national regulations and Sec.
922.232(e) in the CHNMS regulations, NOAA would have the authority to
consider allowing an activity otherwise prohibited by Sec. 922.232 if
such activity is specifically authorized by any valid Federal, State,
or local lease, permit, license, approval, or other authorization
issued after the effective date of sanctuary designation. This ``ONMS
authorization authority''
[[Page 58137]]
would apply to most of the proposed prohibitions as outlined in Sec.
922.232(e) and as limited in Sec. 922.232(f). However, NOAA could not
issue an authorization to allow for exploration, development, or
production of oil, gas, or minerals, or for interfering with an
investigation or other enforcement action. In general, an ONMS
authorization could not be issued to allow for an introduction of an
introduced species; however, NOAA proposes a process by which an ONMS
authorization for aquaculture projects raising an introduced species
approved in concert with the State of California could be issued after
making certain findings. NOAA has previously adopted a memorandum of
agreement (MOA) with the State of California for considering
aquaculture projects raising an introduced species in State waters of
MBNMS and intends to update that MOA to address future aquaculture
projects raising an introduced species that may be proposed within
CHNMS.
4. Special Use Permits
NOAA has the authority under the NMSA to issue special use permits
(SUPs) at national marine sanctuaries, as established by section 310 of
the NMSA (16 U.S.C. 1441) and by 15 CFR 922.31. SUPs can be used to
authorize specific activities in a sanctuary if such authorization is
necessary to establish conditions of access to, and use of, any
sanctuary resource or to promote public use and understanding of a
sanctuary resource. Section 310 of the NMSA establishes four
requirements for SUPs: (1) activities must be compatible with the
purposes for which the sanctuary is designated and with protection of
sanctuary resources; (2) SUPs shall not authorize the conduct of any
activity for a period of more than five years unless otherwise renewed;
(3) activities carried out under the SUP must be conducted in a manner
that does not destroy, cause the loss of, or injure sanctuary
resources; and (4) permittees are required to purchase and maintain
comprehensive general liability insurance, or post an equivalent bond,
against claims arising out of activities conducted under the SUP and to
agree to hold the United States harmless against such claims. The NMSA
authorizes NOAA to assess and collect fees for the conduct of any
activity under an SUP, including costs incurred, or expected to be
incurred, in issuing the permit and the fair market value use of
sanctuary resources; for instance, for use of the seabed to protect a
buried cable from anchor damage. Implementing regulations at 15 CFR
922.35 provide additional detail on assessment of fees for SUPs. Like
with sanctuary general permits, NOAA can place conditions on SUPs
specific to the activity being permitted.
The activities that may qualify for a SUP are set forth in the
Federal Register (78 FR 25957 (May 3, 2013); 82 FR 42298 (Sept.7,
2017)). Categories of SUPs may be changed or added to through public
notice and comment, and no SUP may be issued for any category of
activity unless ONMS has published a notice in the Federal Register
that such category of activity is subject to the requirements of
section 310 of the NMSA. NOAA is not proposing any new SUP category as
part of the designation of CHNMS. However, SUP categories that are
potentially relevant to known activities at the proposed CHNMS include
the continued presence of commercial subsea cables, discharge of
cremated human remains, and discharges from fireworks displays.
I. Other Conforming Amendments
The general regulations in 15 CFR part 922, subpart A, for general
information and 15 CFR part 922, subpart D, for National Marine
Sanctuary permitting would also have to be amended so that the
regulations are accurate and up-to-date. The modified sections to
conform to adding a new sanctuary are:
Section 922.1 Purposes and applicability of the regulations
Section 922.4 Boundaries
Section 922.5 Allowed activities
Section 922.6 Prohibited or otherwise regulated activities
Section 922.30 National Marine Sanctuary general permits
Section 922.36 National Marine Sanctuary authorizations
Section 922.37 Appeals of permitting decisions
IV. Request for Comments
NOAA requests comments on this proposed rule including the terms of
designation and proposed regulations, the draft EIS including the range
of alternatives, and the draft management plan for the proposed CHNMS.
NOAA will publish the final EIS and final management plan following
public review and comment on this proposed rule and following NOAA's
consideration of substantive comments received. NOAA also requests
comments on the Regulatory Flexibility Act certification and economic
analysis (see section V.F). All substantive comments received, or
comprehensive summary of all public comments on these documents as
applicable, along with responses to comments, will be included in the
final EIS.
Sensitive personally identifiable information, such as account
numbers and Social Security numbers, should not be included with the
comment. Comments that are not related to the proposed Chumash Heritage
National Marine Sanctuary or that contain profanity, vulgarity,
threats, or other inappropriate language will not be considered.
V. Classification
A. National Marine Sanctuaries Act
NOAA has determined that the designation of Chumash Heritage
National Marine Sanctuary (CHNMS) will not have a negative impact on
the National Marine Sanctuary System and that sufficient resources
exist to effectively implement sanctuary management plans and to update
site characterizations. The preliminary finding for NMSA section 304(f)
is available on the proposed sanctuary's website at: https://sanctuaries.noaa.gov/chumash-heritage/. In addition, NOAA consulted
with the Pacific Fishery Management Council (PFMC) as required in
accordance with NMSA section 304(a)(5). Through this consultation, NOAA
provided the PFMC with the opportunity to recommend any fishing
regulations it deemed necessary to implement the proposed sanctuary
designation, and participated in two public meetings with the PFMC in
September 2022 and November 2022 as the Council deliberated on this
issue. At its hearing on November 6, 2022, the PFMC decided not to
recommend any fishing regulations to implement the proposed designation
but expressed a willingness to reconsider in the future should new
information about the need for fishing regulations arise. The PFMC
documented this decision in a letter to ONMS West Coast Regional Office
dated December 1, 2022. NOAA accepts the PFMC's response relative to
the proposed designation of CHNMS.
B. National Environmental Policy Act
As described in section I above, NOAA prepared a draft EIS to
evaluate the impacts of this proposed action of designating a national
marine sanctuary, which considered alternatives for the proposed
designation of a national marine sanctuary along and offshore of the
coast of central California. Copies of the draft EIS and related draft
management plan are available at the address and website listed in the
ADDRESSES section of this proposed rule. NOAA is also soliciting public
comments on the draft EIS and draft management plan. Responses to
comments received on this proposed
[[Page 58138]]
rule as well as on the draft EIS and draft management plan will be
published in the final EIS and preamble to the final rule.
C. Executive Order 12866: Regulatory Impact
The Office of Management and Budget (OMB) has determined this
proposed rule is significant action under Executive Order 12866,
``Regulatory Planning and Review,'' 58 FR 190 (Oct 4, 1993), as
supplemented and reaffirmed E.O. 14094, ``Modernizing Regulatory
Review,'' 88 FR 21879 (April 11, 2023). Based upon the information
provided in NOAA's accompanying Cost-Benefit Analysis (draft EIS
appendix D), this proposed rule would not meet the criteria for a
significant regulatory action as defined in section 3(f)(1) of E.O.
12866, as supplemented and reaffirmed by E.O. 14094. This means the
estimated annual effect is less than $200 million, and the action would
not adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. Therefore, NOAA did not prepare the full regulatory impact
analysis under E.O. 12866. However, NOAA requests public comment on all
the costs and benefits discussed in the accompanying Cost-Benefit
Analysis.
D. Executive Order 13132: Federalism Assessment
NOAA has concluded that this regulatory action does not have
federalism implications sufficient to warrant preparation of a
federalism assessment under Executive Order 13132 because NOAA
supplements and complements Federal, State, and local laws under the
NMSA rather than supersedes or conflicts with them. NOAA has
coordinated with State partners in the development of this proposed
rule. NOAA has aimed for consistent regulations throughout sanctuary
waters including those within State and Federal jurisdiction.
E. Executive Order 13175 Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13175 of November 6, 2000, Federal
departments and agencies are charged with engaging in regular and
meaningful consultation and collaboration with officials of federally-
recognized Tribal Nations on the development of Federal policies that
have tribal implications. The Executive order identifies fundamental
principles guiding agencies in formulating or implementing policies
that have tribal implications, including working with federally-
recognized Tribal Nations on a government-to-government basis to
address issues concerning Indian tribal self-government, tribal trust
resources, and Indian tribal treaty and other rights, recognizing the
right of Indian tribes to self-government, and supporting tribal
sovereignty and self-determination. NOAA implements Executive Order
13175 through the NOAA Administrative Order 218-8 (Policy on
Government-to-Government Consultation with Federally Recognized Indian
Tribes and Alaska Native Corporations), and the NOAA Tribal
Consultation Handbook. Under these policies and procedures, NOAA offers
affected federally-recognized Tribal Nations government-to-government
consultation at the earliest practicable time it can reasonably
anticipate that a proposed policy or initiative may have Tribal
implications.
NOAA identified the Santa Ynez Band of Chumash Indians (SYBCI) as
the only federally-recognized Tribe in the area of the proposed
sanctuary. To date, five formal consultation meetings have been
conducted, on January 27, 2022, April 14, 2022, August 12, 2022,
September 1, 2022, and December 19, 2022, as well as one informational
meeting with NOAA leadership on April 28, 2022. In the course of this
consultation, NOAA has shared relevant portions of the draft EIS and
the draft management plan with the SYBCI and incorporated comments
received and information exchanged in consultation to revise and update
the draft EIS. NOAA's government-to-government consultation with the
SYBCI for the purpose of designating the new national marine sanctuary
is still ongoing.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) requires
Federal agencies to prepare an analysis of a rule's impact on small
entities whenever the agency is required to publish a notice of
proposed rulemaking, unless the agency certifies, pursuant to 5 U.S.C.
605, that the action will not have significant economic impact on a
substantial number of small entities. The RFA requires agencies to
consider, but not necessarily minimize, the effects of proposed rules
on small entities. The goal of the RFA is to inform the agency and
public of expected economic effects of the proposed rule and to ensure
the agency considers alternatives that minimize the expected economic
effects on small entities while meeting applicable goals and
objectives.
Pursuant to section 605(b) of the RFA, the Chief Counsel for
Regulation of the Department of Commerce certified to the Chief Counsel
for Advocacy of the Small Business Administration (SBA) that this
proposed rule, if adopted, would not have a significant economic impact
on a substantial number of small entities. The purpose, context, and
statutory basis for this action is described above and not repeated
here. The analysis below discusses the potential effects of the
proposed designation of a Chumash Heritage National Marine Sanctuary
and serves as the factual basis for the certification. In summary, with
this proposed rulemaking, small businesses (commercial fishing, for-
hire charter operations) are not expected to experience significant
impacts. The extent of costs imposed on businesses would be for those
seeking a general sanctuary permit of $172.
I. Description of Small Entities to Which the Initial Boundary
Alternative Would Apply
NOAA has identified commercial and for-hire fishing vessels and the
non-consumptive recreational industry, which includes for-hire
operations such as wildlife viewing, as small entities impacted by the
Initial Boundary Alternative. Each relevant small business category is
based on the most recent size standards published by the U.S. Small
Business Administration (SBA) (2022). Size standards are based upon the
average annual receipts (all revenue) or the average employment of a
firm. The commercial size standard is $25.0 million for finfish fishing
(North American Industry Classification System [NAICS] code--114111),
$14.0 million for shellfish fishing (NAICS code--114112), and $11.5
million for other marine fishing (NAICS code--114119). Water-based
scenic and sightseeing transportation operations (NAICS code--487210),
such as for-hire recreational fishing operations and dive/snorkeling
for-hire operations, have size standards of $14.0 million. All
businesses within the industries analyzed here are small businesses,
which include commercial and recreational fishing and non-consumptive
recreational businesses. There are other businesses that operate within
the study area; however, they are not considered small businesses
(e.g., cruise ships). These large entities are discussed in the Cost-
Benefit Analysis (draft EIS appendix D).
All commercial fishing and for-hire fishing vessel count data
presented in this section are derived from California Department of
Fish and Wildlife (CDFW) data. NOAA calculated the potential number of
vessels that may be
[[Page 58139]]
impacted by the proposed rule--as implemented in the Agency-Preferred
Alternative (Alternative 2 and Gaviota Coast Extension (Sub-alternative
5b)) in the draft EIS--based on the number of vessels reporting
activity, from 2016-2020, within the CDFW statistical areas that best
align with the proposed sanctuary boundary. Statistical areas were
included in the analysis if their center is located within the proposed
boundary. In total, 53 statistical areas were included in the area
analyzed--meaning if a fishing vessel landed at least one pound of
commercial fish species within one of the 53 statistical areas within
the study period, that vessel was considered in this analysis. Further
information, including maps of the statistical areas included may be
found in Eynon, 2023. Estimates of the number of vessels that operate
within the proposed sanctuary boundaries are provided below. Data for
non-consumptive industries are not publicly available, so information
was collected from personal communication with NOAA staff.
i. Commercial Fishing
All commercial fishing vessels were determined to be small
businesses based on the SBA size standards. On average (2016-2020),
250.6 vessels landed at least one pound of marine life within the area
analyzed each year and 3,057.6 commercial fishing vessels operated
within the State (CDFW, 2020a, 2021, 2020b, 2019, 2018, 2017).
ii. For-Hire Recreational Fishing
For-hire recreational fishing includes both charter boats and
headboats. Charter boats are fishing vessels that are typically hired
to take up to six anglers on a fishing trip. In general, charter boats
charge on a per-trip basis. Headboats usually operate on a schedule and
may provide several trips in a single day, taking multiple fishing
parties per trip and charging on a per-person basis. Headboats are
usually larger and able to accommodate more anglers than a charter
boat. All recreational fishing operations were determined to be small
businesses. From 2016-2020, there was an annual average of 18.8 for-
hire recreational fishing vessels operating within the proposed
sanctuary boundaries annually and 532 vessels on average each year
operating within the State (CDFW, 2020c, 2021, 2020b, 2019, 2018,
2017).
iii. Non-Consumptive Recreation Industry
Businesses considered to operate in the non-consumptive recreation
industry include dive and snorkel operations, rental equipment
operations, wildlife viewing operations, and other businesses that
either utilize or whose customers utilize, but do not take, sanctuary
resources.
There are several harbors within the study area that support non-
consumptive recreation businesses. Santa Barbara, Morro Bay, and Avila
Beach all have been identified to have operations that use the harbors.
Across these three harbors, NOAA identified nine operations that are
likely to use the proposed sanctuary waters to support their operations
for whale watching and other wildlife viewing (NOAA personal
communication). All of these businesses were determined to be small
businesses. No operations visiting the proposed sanctuary for white
shark tours were identified.
II. Analysis of Small Entities
The proposed regulatory action would establish new reporting and
recordkeeping requirements for small entities that apply for sanctuary
general permits, certifications, or authorizations (see 15 CFR part 922
and the description in part III, section H above). As a result of this
proposed action, only a minimal increase in the number of permits
(approximately 5-15 permits per year) is expected, and these
requirements would have a minimal impact on small entities because few
operators in the area would need to apply for a permit in order to
continue their activities. Minimal reporting and recordkeeping
requirements are expected because lawful commercial and recreational
fishing and recreational activities would be allowed to continue in the
proposed sanctuary without a permit (with certain exceptions discussed
below). An operator would be required to obtain a permit only if they
wish to conduct activities that would be prohibited in the proposed
sanctuary; for example, if a research operation or commercial activity
was likely to result in damage to the seabed, a permit would be
required unless an exception or exemption applies.
As discussed below, in section G., the public reporting burden for
ONMS general permits is estimated to average three responses with an
average of 1.5 hours per response, to include application submission, a
cruise or flight log (or some other form of activity report), and a
final summary report after the activity is complete. The only expected
costs are related to permitting. The total cost estimate for reporting
a permit is $171.68 based on an hourly rate of $38.15 (see Paperwork
Reduction Act OMB control number (0648-0141 \2\)). All small and large
entities would be subject to the same permitting and reporting
requirements, and no unique professional skills are necessary to meet
these reporting requirements. Therefore, the reporting and
recordkeeping requirements resulting from this proposed rule would not
have a significant impact on a substantial number of small entities.
---------------------------------------------------------------------------
\2\ Many of the permit applicants are from academic
institutions; thus, ONMS' information collection renewal uses the
Bureau of Labor Statistics (BLS) Occupational Employment and Wages
(May 2020) for ``Life, Physical, and Social Science Occupations.''
For this group, BLS estimated a mean hourly wage of $38.15 (https://www.bls.gov/oes/current/oes190000.htm).
---------------------------------------------------------------------------
The proposed rule does not propose to regulate commercial fishing
or recreational fishing. The proposed rule is not likely to impact
commercial fishermen's operations or profits within the statistical
areas corresponding to the proposed sanctuary designation. Although
vessels would not be permitted to discharge within the proposed
sanctuary boundary, they are still permitted to discharge outside of
sanctuary boundaries. As discussed in the supporting draft EIS (section
4.2.3), this regulation is unlikely to have an adverse impact on
vessels, provided they plan accordingly to discharge outside of the
sanctuary or use appropriate facilities near shore. Additionally,
vessels are unlikely to be impacted by the seabed disturbance
prohibition. If a vessel did need to engage in seabed disturbance, the
small business could seek a permit from NOAA.
It is also likely that increased name recognition, marketing, and
outreach of the proposed sanctuary would result in increased demand for
the services offered by small businesses that utilize sanctuary
resources. This is described in more detail in the economic review of
the potential impacts; see appendix D of the draft EIS.
As described above, NOAA does not expect a significant reduction in
profits, as the only expected costs are for permitting ($172 per
permit). No duplicative, overlapping, or conflicting Federal rules have
been identified for this proposed rule. Therefore, NOAA has concluded
that the proposed rule would not have a significant impact on a
substantial number of small entities operating in the area of the
proposed sanctuary due to the minimal permitting costs. Therefore, an
Initial Regulatory Flexibility Analysis is not required.
G. Paperwork Reduction Act
Notwithstanding any other provisions of the law, no person is
required to
[[Page 58140]]
respond to, nor shall any person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., unless that
collection of information displays a currently valid Office of
Management and Budget (OMB) control number.
NOAA has an OMB control number (0648-0141) for the collection of
public information related to the processing of ONMS permits across the
National Marine Sanctuary System. NOAA's proposal to create a national
marine sanctuary along the coast of central California would likely
result in a minimal increase in the number of requests for ONMS general
permits, special use permits, certifications, and authorizations
because this action proposes to add those approval types for this
proposed sanctuary. A large increase in the number of permit requests
would require a change to the reporting burden certified for OMB
control number 0648-0141. While not expected, if such permit requests
do increase, a revision to this control number for the processing of
permits would be requested.
In the most recent Information Collection Request revision and
approval for national marine sanctuary permits (dated November 30,
2021), NOAA reported approximately 424 national marine sanctuary
permitting actions each year, including applications for all types of
ONMS permits, requests for permit amendments, and the conduct of
administrative appeals. Of this amount, CHNMS is expected to add 5 to
15 permit requests per year. The public reporting burden for national
marine sanctuaries general permits is estimated to average three
responses with an average of 1.5 hours per response, to include
application submission, a cruise or flight log (or some other form of
activity report), and a final summary report after the activity is
complete. Therefore, the total annual burden hours would be expected to
increase by approximately 22.5 to 67.5 hours.
Please send any comments regarding the burden estimate for this
data collection requirement or any other aspect of this data
collection, including suggestions for reducing the burden, to NOAA (see
ADDRESSES above). Comments can also be submitted to www.reginfo.gov/public/do/PRAMain. Before an agency submits a collection of information
to OMB for approval, the agency shall provide 60-day notice in the
Federal Register, and otherwise consult with members of the public and
affected agencies concerning each proposed collection of information,
to solicit comments to:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
H. National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA, 54
U.S.C. 306108) requires Federal agencies to take into account the
effects of their undertakings on historic properties and afford the
Advisory Council on Historic Preservation (ACHP) a reasonable
opportunity to comment with regard to the undertaking. ``Historic
property'' means any prehistoric or historic district, site, building,
structure, or object included in or eligible for inclusion in the
National Register of Historic Places maintained by the Secretary of the
Interior. This term includes artifacts, records, and material remains
that are related to and located within such properties, including
properties of traditional religious and cultural importance to an
Indigenous nation or tribe or Native Hawaiian organization. 36 CFR
800.16(l).
The regulations implementing section 106 of the NHPA (36 CFR part
800) establish a process requiring Federal agencies to: (i) determine
whether the undertaking is a type of activity that could affect
historic properties, (ii) identify historic properties in the area of
potential effects, (iii) assess potential adverse effects, and (iv)
resolve adverse effects. The regulations require that Federal agencies
consult with States, tribes, and other interested parties when making
their effect determinations.
NOAA has determined that the designation of a national marine
sanctuary and related rulemaking for sanctuary-specific regulations
meet the definition of an undertaking as defined at Sec. 800.16(y).
In fulfilling its responsibilities under section 106 of the NHPA,
NOAA is seeking to identify potential consulting parties in addition to
the State Historic Preservation Officer (SHPO), and will complete the
identification of historic properties in the area of potential effects
and the assessment of the effects of the undertaking on such properties
in consultations with those identified parties. By this notice of
proposed rulemaking, NOAA seeks public input, particularly in regard to
the identification of historic properties within the proposed area of
potential effect. Pursuant to 36 CFR 800.16(l)(1),\3\ the term
``historic property'' means ``any prehistoric or historic district,
site, building, structure or object included in, or eligible for
inclusion in, the National Register of Historic Places maintained by
the Secretary of the Interior.'' The term includes ``artifacts,
records, and remains that are related to and located within such
properties'' as well as ``properties of traditional religious and
cultural importance to an Indian tribe . . . that meet the National
Register criteria.'' If you, your organization(s), or business(es)
would like to be considered a ``consulting party'' under section 106
please contact the individual listed under the heading FOR FURTHER
INFORMATION CONTACT; include contact information for the principal
representative for the consultation; and describe you or your party's
interest in the proposed designation. In accordance with 36 CFR
800.3(f)(3), NOAA will consider all ``consulting party'' requests but
has ultimate discretion in determining and inviting additional
consulting parties.
---------------------------------------------------------------------------
\3\ https://www.ecfr.gov/current/title-36/chapter-VIII/part-800/subpart-C/section-800.16.
---------------------------------------------------------------------------
I. Sunken Military Craft Act
The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title
XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects
from unauthorized disturbance all sunken military craft that are owned
by the United States Government, as well as foreign sunken military
craft that lie within United States waters, as defined in the SMCA.
Thousands of U.S. sunken military craft lie in waters around the world,
many accessible to looters, treasure hunters, and others who may cause
damage to them. These craft, and their associated contents, represent a
collection of non-renewable and significant historical resources that
often serve as war graves, carry unexploded ordnance, and contain oil
and other hazardous materials. By protecting sunken military craft, the
[[Page 58141]]
SMCA helps reduce the potential for irreversible harm to these
nationally important historical and cultural resources.
There are seven known U.S. Navy destroyers that ran aground and
sunk near Point Honda in 1923 within the proposed CHNMS. The proposed
CHNMS may also include sunken military craft that have yet to be
discovered. Sunken military craft fall under the jurisdiction of a
number of Federal agencies such as the U.S. Navy and the U.S. Coast
Guard. The USCGC McCulloch is an example of a known sunken military
craft in the proposed National Marine Sanctuary that is under the
jurisdiction of the U.S. Coast Guard, per the SMCA. NOAA would
coordinate with the U.S. Navy, the U.S. Coast Guard and any other
applicable Federal agency, or State agency if found within State
waters, regarding activities directed at sunken military craft
discovered within the sanctuary.
J. Coastal Zone Management Act (CZMA)
Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C.
1456) requires Federal agencies to consult with a State's coastal
program on potential Federal agency activities that affect any land or
water use or natural resource of the coastal zone. Because the proposed
sanctuary lies partially within State waters, NOAA intends to submit a
copy of this proposed rule and supporting documents, including the
draft EIS, to the California Coastal Commission for evaluation of
Federal consistency under the CZMA. NOAA will publish the final rule
and designation only after completion of the Federal consistency
process under the CZMA.
K. Executive Order 12898: Environmental Justice
Executive Order 12898 directs Federal agencies to identify and
address disproportionately high and adverse effects of their actions on
human health and the environment of minority or low-income populations.
The designation of national marine sanctuaries by NOAA helps to ensure
the enhancement of environmental quality for all populations in the
United States. The proposed sanctuary designation would not result in
disproportionate negative impacts on any minority or low-income
population. In addition, many of the potential impacts from designating
the proposed sanctuary would result in long-term or permanent
beneficial impacts by protecting sanctuary resources, which may have a
positive impact on communities by providing employment and educational
opportunities, and potentially result in improved ecosystem services.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Cultural
resources, Historic preservation, Marine protected areas, Marine
resources, National marine sanctuaries, Recreation and recreation
areas, Reporting and recordkeeping requirements, Shipwrecks.
Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management,
National Ocean Service, National Oceanic and Atmospheric
Administration.
For the reasons set forth above, NOAA proposes to amend part 922,
title 15 of the Code of Federal Regulations as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
0
1. The authority citation for part 922 continues to read as follows:
Authority: 16 U.S.C. 1431 et seq.
0
2. Amend Sec. 922.1 by revising paragraph (a)(2) to read as follows:
Sec. 922.1 Purposes and applicability of the regulations.
(a) * * *
(2) To implement the designations of the national marine
sanctuaries, for which specific regulations appear in subpart F through
subsequent subparts of this part, by regulating activities affecting
them, consistent with their respective terms of designation, in order
to protect, restore, preserve, manage, and thereby ensure the health,
integrity, and continued availability of the conservation,
recreational, ecological, historical, scientific, educational,
cultural, archaeological, and aesthetic resources and qualities of
these areas.
* * * * *
0
3. Revise Sec. 922.4 to read as follows:
Sec. 922.4 Boundaries.
Subpart F and subsequent subparts of this part set forth the
boundaries for all national marine sanctuaries.
0
4. Revise Sec. 922.6 to read as follows:
Sec. 922.6 Prohibited or otherwise regulated activities.
Subpart F and subsequent subparts of this part set forth site-
specific regulations applicable to the activities specified therein.
0
5. Amend Sec. 922.30 by:
0
a. Revising paragraph (a)(2);
0
b. Removing the word ``and'' at the end of paragraph (b)(5);
0
c. Removing the period at the end of paragraph (b)(6) and adding ``;
and'' in its place; and
0
d. Adding paragraph (b)(7).
The addition reads as follows:
Sec. 922.30 National Marine Sanctuary general permits.
(a) * * *
(2) The permit procedures and criteria for all national marine
sanctuaries in which the proposed activity is to take place in
accordance with relevant site-specific regulations appearing in subpart
F and subsequent subparts of this part.
(b) * * *
(7) Native American cultural or ceremonial activities--activities
within Chumash Heritage National Marine Sanctuary that will promote or
enhance local Native American cultural or ceremonial activities; or
will promote or enhance education and training related to local Native
American cultural or ceremonial activities.
0
6. Amend Sec. 922.36 by revising paragraphs (a) and (b)(1)(ii) to read
as follows:
Sec. 922.36 National Marine Sanctuary authorizations.
(a) Authority to issue authorizations. The Director may authorize a
person to conduct an activity otherwise prohibited by subparts L
through P, or subparts R through V, of this part, if such activity is
specifically allowed by any valid Federal, State, or local lease,
permit, license, approval, or other authorization (hereafter called
``agency approval'') issued after the effective date of sanctuary
designation or expansion, provided the applicant complies with the
provisions of this section. Such an authorization by the Office of
National Marine Sanctuaries (ONMS) is hereafter referred to as an
``ONMS authorization.''
(b) * * *
(1) * * *
(ii) Notification must be sent to the Director, Office of National
Marine Sanctuaries, to the attention of the relevant Sanctuary
Superintendent(s) at the address specified in subparts L through P, or
subpart R through V, of this part as appropriate.
* * * * *
0
7. Amend Sec. 922.37 by revising paragraph (a)(2) to read as follows:
Sec. 922.37 Appeals of permitting decisions.
(a) * * *
(2) An applicant or a holder of a National Marine Sanctuary permit
issued pursuant to Sec. 922.30 or pursuant to site-specific
regulations appearing in subparts F through V of this part;
* * * * *
[[Page 58142]]
0
8. Add subpart V to read as follows:
Subpart V--Chumash Heritage National Marine Sanctuary
Sec.
922.230 Boundary.
922.231 Definitions.
922.232 Prohibited or otherwise regulated activities.
922.233 Permit procedures.
922.234 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or other rights to conduct a
prohibited activity.
Appendix A to Subpart V of Part 922--Chumash Heritage National
Marine Sanctuary Boundary Description and Coordinates
Appendix B to Subpart V of Part 922--Coordinates for Rodriguez
Seamount Management Zone
Sec. 922.230 Boundary.
Chumash Heritage National Marine Sanctuary (CHNMS) consists of an
area of approximately 5,617 square miles (mi\2\) (4,242 square nautical
miles (nmi\2\)) of coastal and ocean waters along the central coast of
California and the submerged lands thereunder. The northern boundary
would commence at Hazard Canyon Reef within Monta[ntilde]a de Oro State
Park at the mean high water line (MHWL) and extend for 134 miles south
along the MHWL through the remainder of the San Luis Obispo County
coast, excluding the private marina at Diablo Canyon Power Plant and
Port San Luis (at the port's boundary for International Regulations for
Preventing Collisions at Sea (COLREGS) demarcation line (33 CFR
80.1130)), and then further south and east to include the coast of
western Santa Barbara County to approximately two miles east of Dos
Pueblos Canyon along the Gaviota Coast near the township of Naples. The
boundary then shifts due south offshore to the State waters line, then
to the west along the State waters line to approximately 3 nmi offshore
of Gaviota Creek, then in a southwest direction along the western end
of Channel Islands National Marine Sanctuary, southward to include
Rodriguez Seamount and shifting to the northwest in an arc reaching
approximately 47 miles due west of Purisima Point and another arc
reaching a distance approximately 54 miles due west of Morro Rock, then
approximately 2.5 miles to the north, then approximately 15 miles due
east, and finally to the southeast approximately 39 miles to the point
of origin at MHWL at Hazard Canyon Reef.
Sec. 922.231 Definitions.
In addition to the definitions found in Sec. 922.11, the following
terms are defined for purposes of this subpart:
Beneficial use of dredged material means the use of dredged
material removed from the public harbor adjacent to the Sanctuary (Port
San Luis) that is determined by the Director to be suitable as a
resource for habitat protection or restoration purposes. Beneficial use
of dredged material is not disposal of dredged material.
Rodriguez Seamount Management Zone means the area bounded by
geodetic lines connecting a heptagon generally centered on the top of
the Rodriguez Seamount, and consists of approximately 570 mi\2\ (430
nmi\2\) of ocean waters and the submerged lands thereunder. The
northeast corner of this zone is located approximately 27 miles
southwest of Point Conception off the coast of Santa Barbara County.
Exact coordinates for the Rodriguez Seamount Management Zone boundary
are provided in appendix B to this subpart.
Sec. 922.232 Prohibited or otherwise regulated activities.
(a) Except as specified in paragraphs (b) through (e) and paragraph
(g) of this section, the following activities are prohibited and thus
are unlawful for any person to conduct or to cause to be conducted:
(1) Exploring for, developing, or producing oil, gas, or minerals
within the Sanctuary, except for continued oil and gas production,
which includes well abandonment, of existing reservoirs under
production prior to the effective date of Sanctuary designation
([EFFECTIVE DATE OF FINAL RULE]) from Platform Irene and Platform
Heritage.
(2)(i) Discharging or depositing from within or into the Sanctuary,
other than from a cruise ship, any material or other matter, except:
(A) Fish, fish parts, chumming materials, or bait used in or
resulting from lawful fishing activities within the Sanctuary, provided
that such discharge or deposit is during the conduct of lawful fishing
activities within the Sanctuary;
(B) For a vessel less than 300 gross registered tons (GRT), or a
vessel 300 GRT or greater without sufficient holding tank capacity to
hold sewage while within the Sanctuary, clean effluent generated
incidental to vessel use by an operable Type I or II marine sanitation
device (U.S. Coast Guard classification) approved in accordance with
section 312 of the Federal Water Pollution Control Act, as amended
(FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine
sanitation devices in a manner that prevents discharge or deposit of
untreated sewage;
(C) Clean vessel deck wash down, clean vessel engine cooling water,
clean vessel generator cooling water, clean bilge water, or anchor
wash;
(D) For a vessel less than 300 GRT, or a vessel 300 GRT or greater
without sufficient holding capacity to hold graywater while within the
Sanctuary, clean graywater as defined by section 312 of the FWPCA;
(E) Vessel engine or generator exhaust;
(F) Beyond 3 nautical miles from shore, sewage and non-clean
graywater as defined by section 312 of the FWPCA generated incidental
to vessel use by a U.S. Coast Guard vessel without sufficient holding
tank capacity and without a Type I or II marine sanitation device; and
beyond 12 nautical miles from shore, ammunition, pyrotechnics, or other
materials directly related to training for search and rescue and live
ammunition activities conducted by U.S. Coast Guard vessels and
aircraft;
(G) Dredged material deposited at disposal sites within the
Sanctuary authorized by the U.S. Environmental Protection Agency (EPA),
in consultation with the U.S. Army Corps of Engineers, prior to the
effective date of Sanctuary designation ([EFFECTIVE DATE OF FINAL
RULE]); or
(H) Discharges incidental and necessary to oil and gas production
within or into existing reservoirs under production prior to the
effective date of Sanctuary designation ([EFFECTIVE DATE OF FINAL
RULE]) from Platform Irene or Platform Heritage, including well
abandonment.
(ii) Discharging or depositing from within or into the Sanctuary
any material or other matter from a cruise ship except clean vessel
engine cooling water, clean vessel generator cooling water, vessel
engine or generator exhaust, clean bilge water, or anchor wash.
(iii) Discharging or depositing from beyond the boundary of the
Sanctuary any material or other matter that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality, except material
or other matter listed in paragraphs (a)(2)(i)(A) through (F) and
(a)(2)(ii) of this section.
(3) Drilling into, dredging, or otherwise altering the submerged
lands of the Sanctuary; or constructing, placing, or abandoning any
structure, material, or other matter on or in the submerged lands of
the Sanctuary, except as incidental and necessary to:
[[Page 58143]]
(i) Conduct lawful fishing activities or lawful kelp harvesting;
(ii) Anchor a vessel;
(iii) Install or maintain an authorized navigational aid;
(iv) Repair, replace, or rehabilitate an existing dock, pier,
breakwater, or jetty;
(v) Conduct maintenance dredging of entrance channels for harbors
in existence prior to the effective date of Sanctuary designation
([EFFECTIVE DATE OF FINAL RULE]); or,
(vi) Drill, maintain, or abandon a well necessary for purposes
related to oil and gas production within or into existing reservoirs
under production prior to the effective date of Sanctuary designation
([EFFECTIVE DATE OF FINAL RULE]) from Platform Irene or Platform
Heritage.
(vii) The exceptions listed in paragraphs (a)(3)(ii) through (vi)
of this section do not apply in the Rodriguez Seamount Management Zone,
the boundary of which is defined in appendix B to this subpart.
(4) Moving, removing, or injuring, or attempting to move, remove,
or injure, a Sanctuary historical resource; or possessing or attempting
to possess a Sanctuary historical resource, except as necessary for
valid law enforcement purposes. This prohibition does not apply to,
moving, removing, or injury resulting incidentally from lawful kelp
harvesting or lawful fishing activities.
(5) Taking any marine mammal, sea turtle, or bird within or above
the Sanctuary, except as authorized by the Marine Mammal Protection
Act, as amended (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act,
as amended (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as
amended (MBTA), 16 U.S.C. 703 et seq., or any regulation promulgated
under the MMPA, ESA, or MBTA.
(6) Possessing within the Sanctuary (regardless of where taken,
moved, or removed from), any marine mammal, sea turtle, or bird, except
as authorized by the MMPA, ESA, MBTA, by any regulation promulgated
under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement
purposes.
(7) Deserting a vessel aground, at anchor, or adrift in the
Sanctuary or leaving harmful matter aboard a grounded or deserted
vessel in the Sanctuary.
(8) Attracting any white shark within the Sanctuary.
(9)(i) Moving, removing, taking, collecting, catching, harvesting,
disturbing, breaking, cutting, or otherwise injuring, or attempting to
move, remove, take, collect, catch, harvest, disturb, break, cut, or
otherwise injure, any Sanctuary resource located more than 1,500 ft.
below the sea surface within the Rodriguez Seamount Management Zone, as
defined in appendix B to this subpart. This prohibition does not apply
to lawful fishing, which is regulated pursuant to 50 CFR part 660.
(ii) Possessing any Sanctuary resource, the source of which is more
than 1,500 ft. below the sea surface within the Rodriguez Seamount
Management Zone, except as necessary for valid law enforcement
purposes. This prohibition does not apply to possession of fish
resulting from lawful fishing, which is regulated pursuant to 50 CFR
part 660.
(10) Introducing or otherwise releasing from within or into the
Sanctuary an introduced species, except striped bass (Morone saxatilis)
released during catch and release fishing activity.
(11) Interfering with, obstructing, delaying, or preventing an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the Act or any regulation or permit
issued under the Act.
(b) The prohibitions in paragraphs (a)(2) through (7) and (9) of
this section do not apply to an activity necessary to respond to an
emergency threatening life, property, or the environment.
(c)(1) The prohibitions in paragraphs (a)(2) through (7) and (9)
and (10) of this section do not apply to existing activities carried
out or approved by the Department of Defense that were conducted prior
to the effective date of this designation ([EFFECTIVE DATE OF FINAL
RULE]), as specifically identified in section 4.9 or appendix I to the
final environmental impact statement for Chumash Heritage National
Marine Sanctuary (for availability, see https://sanctuaries.noaa.gov/chumash-heritage/). New activities may be exempted from the
prohibitions in paragraphs (a)(2) through (7) and (9) and (10) of this
section by the Director after consultation between the Director and the
Department of Defense. All Department of Defense activities must be
carried out in a manner that avoids to the maximum extent practicable
any adverse impacts on Sanctuary resources and qualities.
(2) In the event of threatened or actual destruction of, loss of,
or injury to a Sanctuary resource or quality resulting from an untoward
incident, including but not limited to spills and groundings caused by
the Department of Defense, the Department of Defense shall promptly
coordinate with the Director for the purpose of taking appropriate
actions to respond to and mitigate the harm and, if practicable,
restore or replace the Sanctuary resource or quality.
(d) The prohibitions in paragraphs (a)(2) through (9) of this
section do not apply to any activity conducted under and in accordance
with the scope, purpose, terms, and conditions of a National Marine
Sanctuary general permit issued pursuant to subpart D of this part and
Sec. 922.233, or a special use permit issued pursuant to subpart D of
this part.
(e) The prohibitions in paragraphs (a)(2) through (9) of this
section, and paragraph (a)(10) of this section regarding any introduced
species of shellfish that NOAA and the State of California have
determined is non-invasive and will not cause significant adverse
effects to Sanctuary resources or qualities, and that is cultivated in
State waters as part of commercial shellfish aquaculture activities, do
not apply to any activity authorized by any lease, permit, license,
approval, or other authorization issued after the effective date of
Sanctuary designation ([EFFECTIVE DATE OF FINAL RULE]) and issued by
any Federal, State, or local authority of competent jurisdiction,
provided that the applicant complies with Sec. 922.36, the Director
notifies the applicant and authorizing agency that the Director does
not object to issuance of the authorization, and the applicant complies
with any terms and conditions the Director deems necessary to protect
Sanctuary resources and qualities. Amendments, renewals, and extensions
of authorizations in existence on the effective date of designation
constitute authorizations issued after the effective date of Sanctuary
designation.
(f)(1) Notwithstanding paragraphs (d) and (e) of this section, in
no event may the Director issue a National Marine Sanctuary general
permit under subpart D of this part and Sec. 922.233, or an ONMS
authorization or special use permit under subpart D of this part
authorizing, or otherwise approve:
(i) The exploration for, development, or production of oil, gas, or
minerals within the Sanctuary;
(ii) The discharge of untreated or primary-treated sewage within
the Sanctuary (except by certification, pursuant to Sec. Sec. 922.10
and 922.234, of valid authorizations in existence prior to the
effective date of designation ([EFFECTIVE DATE OF FINAL RULE]) and
issued by other authorities of competent jurisdiction); or
(iii) The disposal of dredged material within the Sanctuary other
than at sites authorized by the U.S. Environmental Protection Agency
prior to the effective date of designation ([EFFECTIVE DATE
[[Page 58144]]
OF FINAL RULE]). For the purposes of this subpart, the disposal of
dredged material does not include the beneficial use of dredged
material, as defined at Sec. 922.231, related to dredging activity at
Port San Luis.
(2) Any purported authorizations issued by other authorities within
the Sanctuary shall be invalid.
(g) A person may conduct an activity prohibited by paragraphs
(a)(2) through (10) of this section within the Sanctuary if such
activity is specifically authorized by a valid Federal, State, or local
lease, permit, license, or right of subsistence use or of access that
is in existence on the effective date of Sanctuary designation
([EFFECTIVE DATE OF FINAL RULE]) and within the sanctuary designated
area and complies with Sec. 922.10, provided that the holder of the
lease, permit, license, or right of subsistence use or of access
complies with the certification procedures for CHNMS as outlined in
Sec. 922.234.
Sec. 922.233 Permit procedures.
(a) A person may conduct an activity prohibited by Sec.
922.232(a)(2) through (9), if such activity is specifically authorized
by, and conducted in accordance with the scope, purpose, terms, and
conditions of, a sanctuary general permit issued under this section and
subpart D of this part.
(b) Applications for permits should be addressed to the West Coast
Regional Office, Office of National Marine Sanctuaries; ATTN:
Superintendent, Chumash Heritage National Marine Sanctuary, 99 Pacific
Street, Suite 100F, Monterey, CA 93940.
Sec. 922.234 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or other rights to conduct a
prohibited activity.
(a) To obtain a certification of an activity that is specifically
authorized by a valid Federal, State, or local lease, permit, license,
or right of subsistence use or access in existence on the effective
date of Sanctuary designation ([EFFECTIVE DATE OF FINAL RULE]) and
within the sanctuary designated area, pursuant to Sec. Sec. 922.10 and
922.232(g), the holder of such authorization, permit, or right shall:
(1) Notify the Director, in writing, within 90 days of the
effective date of Sanctuary designation ([EFFECTIVE DATE OF FINAL
RULE]) of the existence and location of such authorization or right and
requests certification of such authorization or right; and
(2) Comply with any terms and conditions on the exercise of such
authorization or right imposed as a condition of certification, by the
Director, to achieve the purposes for which the Sanctuary was
designated.
(b) The holder shall address any requests for certifications to:
West Coast Regional Office, Office of National Marine Sanctuaries;
ATTN: Superintendent, Chumash Heritage National Marine Sanctuary, 99
Pacific Street, Suite 100F, Monterey, CA 93940, or send by electronic
means as defined in the instructions for the ONMS permit application. A
copy of the lease, permit, license, or right of subsistence use or of
access must accompany the request.
(c) A holder requesting certification of an authorization or right
described in Sec. 922.232(g) may continue to conduct the activity
without being in violation of Sanctuary prohibitions pending the
Director's review of and decision regarding the holder's certification
request, provided the holder is otherwise in compliance with this
section.
(d) The Director may request additional information from the
certification requester as the Director deems reasonably necessary to
condition appropriately the exercise of the certified authorization or
right to achieve the purposes for which the Sanctuary was designated.
The Director must receive the information requested within 45 days of
the date of the Director's request for information. Failure to provide
the requested information within this time frame may be grounds for
denial by the Director of the certification request.
(e) In considering whether to issue a certification, the Director
may seek and consider the views of any other person or entity, within
or outside the Federal Government, and may hold a public hearing as
deemed appropriate by the Director.
(f) Upon completion of review of the authorization or right and
information received with respect thereto, the Director shall
communicate, in writing, any decision on a certification request or any
action taken with respect to any certification made under this section,
in writing, to both the holder of the certified lease, permit, license,
approval, other authorization, or right, and the issuing agency, and
shall set forth the reason(s) for the decision or action taken.
(g) The Director may amend, suspend, or revoke any certification
issued under this section whenever continued operation would otherwise
be inconsistent with any terms or conditions of the certification. Any
such action shall be forwarded in writing to both the certification
holder and the agency that issued the underlying lease, permit,
license, or right of subsistence use or of access, and shall set forth
reason(s) for the action taken.
(h) The Director may amend any certification issued under this
section whenever additional information becomes available that the
Director determines justifies such an amendment.
(i) The holder may appeal any action conditioning, amending,
suspending, or revoking any certification in accordance with the
procedures set forth in Sec. 922.37.
(j) Any time limit prescribed in or established under this section
may be extended by the Director for good cause.
(k) It is unlawful for any person to violate any terms and
conditions in a certification issued under this section.
Appendix A to Subpart V of Part 922--Chumash Heritage National Marine
Sanctuary Boundary Description and Coordinates
Coordinates listed in this appendix are unprojected (Geographic)
and based on the North American Datum of 1983.
------------------------------------------------------------------------
Point ID Longitude Latitude
------------------------------------------------------------------------
1....................................... -121.81352 35.39844
2....................................... -121.56586 35.39742
3 *..................................... -120.88251 35.28952
4 *..................................... -120.85694 35.20600
5 *..................................... -120.85605 35.20671
6 *..................................... -120.74984 35.15602
7 *..................................... -120.72509 35.17425
8 *..................................... -119.93333 34.43590
9....................................... -119.93333 34.37859
10...................................... -119.93822 34.38126
11...................................... -119.94270 34.38391
12...................................... -119.94657 34.38362
13...................................... -119.95046 34.38354
14...................................... -119.95292 34.38358
15...................................... -119.95496 34.38367
16...................................... -119.95698 34.38381
17...................................... -119.95900 34.38401
18...................................... -119.96257 34.38451
19...................................... -119.96946 34.38575
20...................................... -119.97406 34.38677
21...................................... -119.97601 34.38729
22...................................... -119.97815 34.38794
23...................................... -119.98047 34.38872
24...................................... -119.98274 34.38959
25...................................... -119.98497 34.39053
26...................................... -119.98715 34.39154
27...................................... -119.98928 34.39263
28...................................... -119.99136 34.39379
29...................................... -119.99319 34.39491
30...................................... -119.99514 34.39621
31...................................... -119.99731 34.39713
32...................................... -119.99962 34.39823
33...................................... -120.00168 34.39930
34...................................... -120.00386 34.40054
35...................................... -120.00625 34.40107
36...................................... -120.00882 34.40173
37...................................... -120.01178 34.40261
38...................................... -120.01409 34.40339
39...................................... -120.01636 34.40425
40...................................... -120.01878 34.40527
41...................................... -120.02094 34.40628
42...................................... -120.02320 34.40744
[[Page 58145]]
43...................................... -120.02641 34.40752
44...................................... -120.02955 34.40774
45...................................... -120.03246 34.40806
46...................................... -120.03569 34.40855
47...................................... -120.03855 34.40907
48...................................... -120.04137 34.40971
49...................................... -120.04394 34.41040
50...................................... -120.04667 34.41126
51...................................... -120.04870 34.41100
52...................................... -120.05096 34.41077
53...................................... -120.05323 34.41062
54...................................... -120.05528 34.41054
55...................................... -120.05733 34.41052
56...................................... -120.05961 34.41056
57...................................... -120.06188 34.41068
58...................................... -120.06392 34.41084
59...................................... -120.06679 34.41046
60...................................... -120.06927 34.41021
61...................................... -120.07175 34.41004
62...................................... -120.07424 34.40997
63...................................... -120.07984 34.40990
64...................................... -120.08368 34.41002
65...................................... -120.08666 34.40991
66...................................... -120.08964 34.40992
67...................................... -120.09352 34.41011
68...................................... -120.09739 34.41051
69...................................... -120.09987 34.41088
70...................................... -120.10255 34.41138
71...................................... -120.10677 34.41203
72...................................... -120.10941 34.41251
73...................................... -120.11288 34.41331
74...................................... -120.11729 34.41453
75...................................... -120.11919 34.41509
76...................................... -120.12107 34.41571
77...................................... -120.12292 34.41639
78...................................... -120.12474 34.41711
79...................................... -120.12733 34.41802
80...................................... -120.13068 34.41937
81...................................... -120.13314 34.42030
82...................................... -120.13678 34.42183
83...................................... -120.14015 34.42266
84...................................... -120.14124 34.42285
85...................................... -120.14365 34.42227
86...................................... -120.14631 34.42173
87...................................... -120.14922 34.42126
88...................................... -120.15216 34.42091
89...................................... -120.15458 34.42039
90...................................... -120.15725 34.41992
91...................................... -120.16108 34.41942
92...................................... -120.16493 34.41913
93...................................... -120.16857 34.41904
94...................................... -120.17221 34.41913
95...................................... -120.17583 34.41941
96...................................... -120.17943 34.41986
97...................................... -120.18173 34.41968
98...................................... -120.18378 34.41957
99...................................... -120.18583 34.41952
100..................................... -120.18788 34.41952
101..................................... -120.19038 34.41961
102..................................... -120.19288 34.41978
103..................................... -120.19514 34.42001
104..................................... -120.19763 34.42034
105..................................... -120.20103 34.42014
106..................................... -120.20468 34.42010
107..................................... -120.21923 34.42062
108..................................... -120.22203 34.41994
109..................................... -120.22509 34.41933
110..................................... -120.22818 34.41885
111..................................... -120.23141 34.41849
112..................................... -120.23501 34.41819
113..................................... -120.23821 34.41806
114..................................... -120.24012 34.41788
115..................................... -120.24279 34.41768
116..................................... -120.24551 34.41758
117..................................... -120.24801 34.41758
118..................................... -120.25140 34.41735
119..................................... -120.26775 34.38689
120..................................... -120.32691 34.33744
121..................................... -120.37560 34.30480
122..................................... -120.41671 34.27979
123..................................... -120.53987 34.20486
124..................................... -120.60041 34.18182
125..................................... -120.64208 34.10208
126..................................... -120.73023 34.07464
127..................................... -120.85081 33.87643
128..................................... -120.90550 33.82377
129..................................... -121.21320 33.83184
130..................................... -121.34958 33.85137
131..................................... -121.40902 33.91005
132..................................... -121.40925 34.08467
133..................................... -121.49111 34.16932
134..................................... -121.49220 34.21050
135..................................... -121.49681 34.26897
136..................................... -121.50604 34.32128
137..................................... -121.51066 34.37975
138..................................... -121.51681 34.41821
139..................................... -121.52704 34.45284
140..................................... -121.56178 34.54049
141..................................... -121.57941 34.57950
142..................................... -121.59010 34.59446
143..................................... -121.62378 34.64285
144..................................... -121.63763 34.65978
145..................................... -121.65637 34.67837
146..................................... -121.66652 34.69012
147..................................... -121.68042 34.70722
148..................................... -121.69538 34.72486
149..................................... -121.70340 34.74143
150..................................... -121.70500 34.76227
151..................................... -121.69966 34.78952
152..................................... -121.58778 35.00443
153..................................... -121.57744 35.02331
154..................................... -121.57606 35.03601
155..................................... -121.58377 35.06135
156..................................... -121.59758 35.10429
157..................................... -121.61148 35.13903
158..................................... -121.61469 35.14972
159..................................... -121.65301 35.23983
160..................................... -121.65744 35.24965
161..................................... -121.66492 35.25607
162..................................... -121.67721 35.26729
163..................................... -121.70874 35.28974
164..................................... -121.81352 35.35424
165..................................... -121.81352 35.39844
------------------------------------------------------------------------
Note 1 to appendix A: The coordinates in the table marked with
an asterisk (*) are not a part of the sanctuary boundary. These
coordinates are landward reference points used to draw a line
segment that intersects with the shoreline.
Appendix B to Subpart V of Part 922--Coordinates for Rodriguez Seamount
Management Zone Within the Sanctuary
Coordinates listed in this table are unprojected (Geographic)
and based on the North American Datum of 1983.
------------------------------------------------------------------------
Point ID Longitude Latitude
------------------------------------------------------------------------
1....................................... -120.75816 34.02873
2....................................... -120.85081 33.87643
3....................................... -120.90550 33.82377
4....................................... -121.21320 33.83184
5....................................... -121.25782 33.83812
6....................................... -121.25937 34.13926
7....................................... -120.75892 34.14264
8....................................... -120.75816 34.02873
------------------------------------------------------------------------
[FR Doc. 2023-18271 Filed 8-24-23; 8:45 am]
BILLING CODE 3510-NK-P