Stellwagen Bank National Marine Sanctuary Final Environmental Impact Statement/ Management Plan Volume II: Appendices U.S. Department of Commerce National Oceanic and Atmospheric Administration tuaries and rves Division e ^^^^^^-^^o. ^^*Vtti o« ^ \ / Original Cover Artwork by Margie B. Scanlon, 1990 |^^ tr r^ 1 m m *-■ cr 5 ~-~ o , S 1-^ I □ m ^^ □ o *^«T«0» UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Admlnlatration Office of the Chief Scienciat Washington. DC. 20230 /\LJ6 27 1993 Dear Reviewer: In accordance with the provisions of Section 102(2) (C) of the National Enviromental Policy Act of 1969, we are enclosing for your review and consideration the Final Environmental Impact Statement/Management Plan on the Stellwagen Bank National Marine Sanctuary, prepared by the Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administra- tion (NOAA) , Department of Commerce. The responsible Federal official for this project is W. Stanley Wilson, Assistant Administrator for Ocean Services and Coastal Zone Management, National Ocean Service, NOAA. Any written comments or questions you may have should be submitted to the contact person identified below by October 4, 1993. Also, one copy of your comments should be sent to me in Room 6222, U.S. Department of Commerce, Washington, D.C. 20230. CONTACT PERSON Mr. Randall Schneider, Regional Manager Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Ocean Service 1305 East West Highway, 12th Floor Silver Spring, Maryland 20910 Thank you for your cooperation in this matter. Sincerely, ir if^tjL iUuiuA ' David Cottingham Director Ecology and Conservation Office Stellwagen Bank National Marine Sanctuary Final Environmental Impact Statement/ Management Plan Volume II: Appendices WCCDS HOLE G Sanctuaries and Reserves Division 1305 East-West Highway Silver Spring, MD 20910 July 1993 OC.- • _.^..;;3;:;3TiTUTlOri U.S. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Sanctuaries and Reserves Division '*»EMT Of APPENDICES Stellwagen Bank FEIS/MP Appendices Page Al APPENDIX A: DESIGNATION DOCUMENT AND REGULATIONS DESIGNATION DOCUMENT FOR THE STELLWAGEN BANK NATIONAL MARINE SANCTUARY On November 4, 1992, the Oceans Act of 1992 became law (Pub. L. 102-587). Section 2202 of Title II of that Act, known as the National Marine Sanctuaries Program Amendments Act of 1992 ('NMSPAA'J, designated an area of waters and submerged lands, including the Uving and non-living resources within those waters, as described in Article n, as the Stellwagen Bank National Marine Sanctuary. Article I. Effect of Designation Title ni of the Marme Protection, Research and Sanctuaries Act of 1972, as amended (the ')\ct"or •MPRSA*), 16 U.S.C. 1431 et seg. authorizes the issuance of such fmal regulations as are necessary and reasonable to implement the designation, including managing and protecting the conservation, recreational, ecological, historical, research, educational and esthetic resources and qualities of the Stellwagen Bank National Marine Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the type that either are to be regiilated, or may have to be regulated subsequently in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed it may not be regulated, except on an emergency basis, unless Section 1 of Article IV is amended to include the type of activity by the procedures outlined in section 304(a) of the MPRSA. Article 11: Description of the Area The Stellwagen Bank National Marine Sanctuary (the 'Sanctuary'5 boundary encompasses a total of approximately 638 square nautical miles (approximately 2181 square kilometers) of ocean waters, and the submerged lamds thereunder, over and surrounding the submerged Stellwagen Bank and additional submerged features, offshore the Commonwealth of Massachusetts. The boundary encompasses the entirety of Stellwagen Bank; Tillies Bank to the northeast of Stellwagen Bank; and southern portions of Jeffreys Ledge, to the north of Stellwagen Bank. Portions of the Sanctuiuy are adjacent to three coastal ocean areas designated by the Commonwealth of Massachusetts as Ocean Sanctuaries. The northwestern border coincides with the North Shore Ocean Sanctuary. The southern border coincides with the seaward Umit of Commonwealth jurisdictional waters adjacent to the Cape Cod Bay Ocean Sanctuary; and is also tangential to the Cape Cod Ocean Sanctuary. The western border of the Stellwagen Bank Sanctuary occurs approximately 25 miles east of Boston, Massachusetts. Appendix I to this Designation Document sets the precise Sanctuary boimdary. Article HI: Characteristics of the Area That Give It Particular Value Stellwagen Bank is a glacially-deposited, primarily ssindy feature measuring nearly twenty miles in length, occurring in a roughly southeast-to-northwest direction between Cape Cod and Cape Aim, Massachusetts. It is located at the extreme southwestern comer of the Gulf of Maine, and forms a partial 'feateway"to Cape Cod Bay, situated shoreward and southwest of the Bank. The presence of the Bank feature contributes to a particular combination of physical and ocesmographic characteristics which results in two distinct peak productivity periods annually, when overturn and mixing of coastal waters with nutrient-rich waters from deeper strata produce a complex system of overlapping mid-water and benthic habitats. From the time of Colonial settlement, this area has supported an abundant and varied array of fisheries, which continue to provide livelihoods for an active commercial fleet. Important fisheries include bluefin tuna, herring, cod, haddock, winter and summer flounder, silver hake, pollack, ocean pout, lobster, shrimp, surf dam and sea scallop. The commercial value of fish caught (exclusive of bluefin tuna) within Stellwagen Bank FEIS/MP Appendices Page A2 Sanctuary waters exceeded $15 million in 1990. The biological productivity of the Bank also attracts a seasonal variety of large and small cetaceans, several of which are classified as endangered species. The Stellwagen Bank environment provides feeding and nursery areas for humpback, fm, and northern right whales, the latter being the most critically-endangered of all large cetacean species. The photo-identification at Stellwagen Bank of 100 or more individual right whales from a total North Atlantic population estimated in 1990 at approximately 300 to 350 indicates the importance of the Bank to this species. The predictable seasonal presence of these and other cetacean species has generated a growing commercial whalewatch industry, involving more than 40 vessels (over 1.5 million passengers), and producing revenues in excess of $17 million in 1988. A vessel traffic separation scheme (VTSS) crosses directly over Stellwagen Bank, and accommodates approximately 2,700 commercial vessels annually in and out of Boston, Massachusetts. Existing or potential additional human activities involving the Stellwagen Bank environment include dredged materials disposal; sand and grave! extraction; offshore maricultiu-e development; and offshore fixed artificial platform construction. The uniqueness of the Stellwagen Bank environment as well as its accessibility draws the continuing interest of area scientific institutions, including the Center for Coastal Studies, Cetacean Research Unit, University of Massachusetts, Woods Hole Oceanographic Institution, Marine Biological Laboratory, Manomet Bird Observatory, New England Aquarium, University of Rhode Island and the National Marine Fisheries Service (NOAA). In light of the increasing levels of human activities, several issues such as: interactions between marine mammals and commercial/recreational vessels; immediate, long-term and cumulative impacts on marine mammals from whale-watching vessel activity; and the immediate, long-term and cumulative effects of discharge/disposal operations on the Bank§ resources and qualities require coordinated and comprehensive monitoring and research. Article IV. Scope of Regulations Section 1. Activities Subject to Regulation The following activities are subject to regulation under the Act, including prohibition, to the extent necessary and reasonable to ensiu-e the protection and management of the conservation, recreational, ecological, historical, research, educational or esthetic resources and qualities of the area: a. Disch2irging or depositing, from within the boundary of the Sanctuary, any material or other matter; b. Discharging or depositing, from beyond the boimdary of the Sanctuary, any material or other matter; c. Exploring for, developing, or producing oil, gas or minerals (e.g. clay, stone, sand, gravel, metalliferous ores and nonmetalliferous ores or any other solid material or other matter of commercial value ['Industrial materials']) in the Sanctuary; d. Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the seabed of the Sanctuary; e. Development or conduct in the Sanctuary of mariciJture activities; f. Taking, removing, moving, catching, collecting, harvesting, feeding, injuring, destroying or causmg the loss of, or attempting to take, remove, move, catch, collect, harvest, feed, injure, destroy or cause the loss of, a marine meunmal, marine reptile, seabird, historical resource or other Sanctuary resource; Stellwagen Bank FEIS/MP Appendices Page A3 g. Transferring of petroleum-based products or materials from vessel-to-vessel or "lightering", in the Sanctuary, h. Operation of a vessel (Le, water craft of any description capable of being used as a means of transportation) in the Sanctuary; i. Possessing within the Sanctuary a Sanctuary resource or any other resource, regardless of where taken, removed, moved, caught, collected or harvested, that, if it had been found within the Sanctuary, would be a Sanctuary resource; j. 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. Section 2. Emergencies Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality; or minimize the imminent risk of such destruction, loss or injury, any activity, including those not listed in Section 1 of this Article , is subject to immediate temporary regulation, including prohibition. Article V. Effect on Leases. Permits. Licenses, and Rights If any valid regulation issued by any Federal, State or local authority of competent jurisdiction, regardless of when issued, conflicts with a Sanctuary regulation, the regulation deemed by the Director, Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, or his or her designee to be more protective of Sanctuary resources and qualities shall govern. Pursuant to section 304(c)(1) of the Act, 16 U.S.C. § 1434(c)(1), 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 his or her designee, as a result of this designation, or as a resuh of any Sanctuary regulation, if such authorization or right was in existence on the effective date of this designation. However, the Secretary of Commerce, or designee, may regulate the exercise (mcluding, 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 approving: (1) the exploration for, development of, or production of industrial materials within the Sanctuary; or (2) the disposal of dredged material within the Sanctuary (except by a certification, pursuant to Section 940.10, of vahd authorizations in existence on the effective date of Sanctuary designation). 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 VI. Alteration of this Designation The terms of designation, as defmed under Section 304(a) of the Act, may be modified only by the procedures outlined in section 304(a) of the MPRSA, including public hearings, consultation with interested Federal, State, and local agencies, review by the appropriate Congressional committees, and Governor of the Commonwealth of Massachusetts, and approval by the Secretary of Commerce or designee. Stellwagen Bank FEIS/MP Appendices Page A4 Accordingly, for the reasons set forth above, 15 CFR Chapter IX is amended as set forth below. 1. A subchapter B heading is added to read as follows: Subchapter B - Ocean and Coastal Resource Management 2. A new part 940 is added to subchapter B to read a follows: PART 940 - STELLWAGEN BANK NATIONAL MARINE SANCTUARY Section 940.1 Purpose. 940.2 Boundary. 940.3 Definitions. 940.4 Allowed activities. 940.5 Prohibited activities. 940.6 Emergency regulations. 940.7 Penalties for violations of regulations. 940.8 Response costs and damages. 940.9 National Marine Sanctuary permits - application procedures and issuance criteria. 940.10 Certification of pre-existing leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity. 940.11 Notification and review of applications for leases, licenses, permits, approvals, or other authorizations to conduct a prohibited activity. 940.12 Appeals of administrative action. Appendix I to Part 940 - Stellwagen Bank National Marine Sanctuary Boundary Coordinates Authority: Sections 302, 303, 304, 305, 307, 310 and 312 of Title III of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq. § 940.1 Purpose. The purpose of the regulations in this Part is to implement the designation of the Stellwagen Bank National Marine Sanctuary by regulating activities affecting the Sanctuary consistent with the terms of that designation in order to protect and manage the conservation, ecological, recreational, research, educational, historical. Stellwagen Bank FEIS/MP Appendices Page A5 cultural, and esthetic resources and qualities of the area. § 940.2 Boundary. The Stellwagen Bank National Marine Sanctuary consists of an area of approximately 638 square nautical miles of Federal marine waters and the submerged lands thereunder, over and around Stellwagen Bank and other submerged features off the coast of Massachusetts. The boundary encompasses the entirety of Stellwagen Bank; Tillies Bank, to the northeast of Stellwagen Bank; and portions of Jeffreys Ledge, to the north of Stellwagen Bank. The Sanctuary boundary is identified by the following coordinates, indicating the most northeast, southeast, southwest, west-northwest, and north-northwest points: 42°45'59.83"N x 70°13'01.77"W (NE); 42°05'35.5rN x 70°02'08.14"W (SE); 42''07'44.89-N x 70°28'15.44"W; (SW); 42'32'53.52"N x 70°35'52.38"W (Wm\'); and 42°39'04.08"N x 70'30'11.29"W (NNW). The western border is formed by a straight line connecting the most southwest and the west-northwest points of the Sanctuary. At the most west-northwest point, the Sanctuary border follows a line contiguous with the three-mile jurisdictional boundary of Massachusetts to the most north- northwest point. From this point, the northern border is formed by a straight line connecting the most north- northwest point and the most northeast point. The eastern border is formed by a straight line connecting the most northeast and the most southeast points of the Sanctuary. The southern border follows a straight line between the most southwest point and a point located at 42°06'54.57"N x 70°16'42.71"W. From that point, the southern border then continues in a west-to-east direction along a Hne contiguous with the three-mile jurisdictional boundary of Massachusetts until reaching the most southeast point of the Sanctuary. The boundary coordinates of the Sanctuary, provided in latitude/longitude and LORAN, appear in Appendix I following section 940.12. § 940.3 Dennitions. (a)(1) Act means Title III of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, 16U.S.C. 1431 et leg. (2) Administrator or Under Secretary means the Administrator of the National Oceanic and Atmospheric Administration/Under Secretary of Commerce for Oceans and Atmosphere. (3) Assistant Administrator means the Assistant Administrator for Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration. (4) Director means the Director of the Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration. (5) Effective date of Sanctuary designation means the enactment date of Public Law 102-587, or November 4,1992. (6) Fish wastes means waste materials resulting from commercial fish processing operations. (7) Historical resource means a resource possessing historical, cultural, archaeological, or paleontological significance, including sites, structures, districts, and objects significantly associated with or representative of earlier people, cultures, and human activities and events. Historical resources also include "historical properties', as defined in the National Historic Preservation Act, as amended, and implementing regulations, as amended. (8) Industrial material means clay, stone, sand, gravel, metalliferous ore, nonmetalliferous ore or any other solid material or other matter of commercial value. Stellwagen Bank FEIS/MP Appendices Page A6 (9) Injure means to change adversely, either b the long or short term, a chemical, biological, or physical attribute of, or the viability of. To "injure" therefore includes, but is not limited to, to cause the loss of and to destroy. (10) Lightering means the at-sea transfer of petroleum-based products or materials from vessel to vessel. (11) Person means any private individual, partnership, corporation, or other entity; or any officer, employee, agent, department, agency, or instrumentality of the Federal Government or of any State, regional, or local unit of government, or any foreign government. (12) Sanctuary means the Stellwagen Bank National Marine Sanctuary. (13) Sanctuary qualitv means a particular and essential characteristic of the Sanctuary, including but not hmited to, water quality, sediment quality and air quality. (14) Sanctuary resource means any living or non-living resource of the Sanctuary that contributes to its conservation, recreational, ecological, historical, research, educational or esthetic value, including, but not limited to, the substratum of the Stellwagen Bank and other submerged features, and the surrounding seabed, phytoplankton, zooplankton, invertebrates, fish, marine reptiles, marine mammals, seabirds, and historical and cultural resources. (15) Take or taking means the following: (i) For any marine reptile, marine mammal or seabird listed as either endangered or threatened pursuant to the Endangered Species Act, the term means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or to attempt to engage in any such conduct; (ii) For any other marine reptile, marine mammal or seabird, the term means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or to attempt to engage in any such conduct. For the purpose of both subsections (i) and (ii), the term includes, but is not hmited to, any of the following activities: collecting any dead or injured marine reptile, marine mammal or seabird, or any part thereof; restraining or detaining any marine reptile, marine mammal or seabird, or any part thereof, no matter how temporarily; tagging any marine reptile, marine mammal or seabird; operating a vessel or aircraft or doing any other act that results in the disturbing or molesting of any marine reptile, marine mammal or seabird. (16) Traditional fishing means those commercial or recreational fishing methods which have been conducted m the past within the Sanctuary. (17) Vessel means a watercraft of any description capable of being used as a means of transportation in/on the waters of the Sanctuary. (b) Other terms appearing in the regulations in this Part are defined at 15 CFR 922.2, and/or in the Marine Protection, Research and Sanctuaries Act of 1972, as amended, 33 U.S.C. 1401 etieg. and 16 U.S.C. 1431 et seq. Stellwagen Bank FEIS/MP Appendices Page A 7 § 940.4 Allowed activities. All activities except those prohibited by § 940.5 may be undertaken subject to any emergency regulations promulgated pursuant to § 940.6, subject to all prohibitions, restrictions, and conditions validly imposed by any other authority of competent jurisdiction, and subject to the liability established by Section 312 of the Act (see § 940.8). If any valid regulation issued by any Federal, State, or local authority of competent jurisdiction, regardless of when issued, conflicts with a Sanctuary regulation, the regulation deemed by the Director or designee as more protective of Sanctuary resources and qualities shall govern. Fishing activities are allowed and there are no fishing regulations under § 940.5. As required by § 304(a)(5) of the Act, the appropriate Regional Fishery Management Council shall be provided with the opportunity to prepare draft regulations applicable to fishing within the Sanctuary, and shall have the opportunity to incorporate sucii regulations in any existing Fishery Management Plan and implementing regulations. The Secretary shall prepare the fishing regulations in accordance with 15 CFR § 922.31, which implements the requirements for drafting fishing regulations. § 940.5 Prohibited activities. (a) Except as specified in paragraphs (c) through (g) of this § 940.5, the following activities are prohibited and thus unlawful for any person to conduct or cause to be conducted: (1) Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter except: (i) fish, fish wastes, chumming materials or bait used in or resulting from traditional fishing operations in the Sanctuary; (ii) biodegradable effluent incidental to vessel use and generated by marine sanitation devices approved in accordance with Section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322 et seq.: (iii) water generated by routine vessel operations (e.g.. cooling water, deck wash down and graywater as defined by Section 312 of the FWPCA) excluding oily wastes from bilge pumping; or (iv) engme exhaust. (2) Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except those listed in paragraph (a)(l)(i) - (iv) above, that subsequently enters the Sanctuary and injure?, a Sanctuary resource or quality; (3) Exploring for, developing, or producing industrial materials in the Sanctuary; (4) Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure or material or other matter on the seabed of the Sanctuary, except as an incidental result of: (i) anchoring vessels; Stellwagen Bank FEIS/MP Appendices Page A8 (ii) traditional fishing operations; or (iii) installation of navigation aids. (5) Moving, removing, or injuring, or attempting to move, remove, or injure, a Sanctuary historical resource. This prohibition does not apply to moving, removing, or injury resulting incidentally from traditional fishing operations. (6) Taking any marine reptile, marine mammal, or seabird in or above the Sanctuary, except as permitted by regulations, as amended, promulgated under the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seg., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et^ea., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 etjeg. (7) Lightering in the Sanctuary. (8) Possessing within the Sanctuary (regardless of where taken, moved or removed from), except as necessary for vahd law enforcement purposes, any historical resource, or any marine mammal, marine reptile or seabird taken in violation of regulations, as amended, promulgated imder the MMPA, ESA, or MBTA. (9) 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 regulations m this Part shall be apphed to foreign persons and foreign vessels in accordance with generally recognized principles of international law, and in accordance with treaties, conventions and other international agreements to which the United States is a party. (c) The prohibitions in paragraphs (a)(l)-(2) and (4)-(9) of this § 940.5 do not apply to any activity necessary to respond to an emergency threatening life, property, or the environment. (d)(1) All Department of Defense miUtary activities shall be carried out m a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. Department of Defense military activities may be exempted from the prohibitions in paragraphs (a)(l)-(2) and (4)-(8) of this § 9403 by the Director or designee after consultation between the Director or designee and the Department of Defense. If it is determined that an activity may be carried out, such activity shall be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and quaUties. Civil engineering and other civil works projects conducted by the U.S. Army Corps of Engineers are excluded from the scope of this paragraph (d)(1). (2) In the event of threatened or actual destruction of, loss of, or injury to a Sanctuiiry 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 or designee for the purpose of taking appropriate actions to respond to and mitigate the harm and, if possible, restore or replace the Sanctuary resource or quaUty. (e) The prohibitions in paragraphs (a)(l)-(2) and (4)-(8) do not apply to any activity executed in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to § 940.9 or a Special Use permit issued pursuant to Section 310 of the Act. (f) The prohibitions in paragraph (a)(l)-(2) and (4)-(8) do not apply to any activity authorized by a valid Stellwagen Bank FEIS/MP Appendices Page A9 lease, permit, license, approval or other authorization in existence on the effective date of Sanctuary designation and issued by any Federal, State or local authority of competent jurisdiction, or by any valid right of subsistence use or access in existence on the effective date of Sanctuary designation, provided that the holder of such authorization or right compUes with § 940.10 and with any terms and conditions on the exercise of such authorization or right imposed by the Director or designee as a condition of certification as he or she deems necessary to achieve the purposes for which the Sanctuary was designated. (g) The prohibitions in paragraphs (a)(l)-(2) and (4)-(8) of this § 940.5 do not apply to any activity authorized by any lease, permit, Ucense, approval or other authorization issued after the effective date of Sanctuary designation and issued by any Federal, State or local authority of competent jurisdiction, provided that the applicant compUes with § 940.11, the Director or designee notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the appUcant compUes with any terms and conditions the Director or designee 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. (h) Notwithstanding paragraphs (e) emd (g) of this § 940.5, in no event may the Director or designee issue a permit under § 940.9 of these regulations, or under Section 310 of the Act, authorizing, or otherwise approving, the exploration for, development or production of mdustrial materials within the Sanctuary, or the disposal of dredged material within the Sanctuary (except by a certification, pursuant to § 940.10, of valid authorizations in existence on the effective date of Sanctuary designation) and 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. § 940.6 Emergency Regulations. 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, are subject to immediate temporary regulation, including prohibition. § 940.7 Penalties for violations of regulations. (a) Each violation of the Act, any regulation in this Part, or any permit issued pursuant thereto, is subject to a civil penalty of not more than $100,000. Each day of a continuing violation constitutes a separate violation. (b) Regulations setting forth the procedures governing the administrative proceedings for assessment of civil penalties, permit sanctions and denials for enforcement reasons, issuance and use of written warnings, and release or forfeiture of seized property appear at 15 CFR Part 904. § 940.8 Response costs and damages. Under Section 312 of the Act, any person who destroys, causes the loss of, or injures any Sanctuary resource is liable to the United States for response costs and damages resulting from such destruction, loss or injury, and any vessel used to destroy, cause the loss of, or injure any Sanctuary resource is liable in rem to the United States for response costs and damages resulting from such destruction, loss, or injury. § 940.9 National Marine Sanctuary permits - application procedures and issuance criteria. (a) A person may conduct an activity prohibited by paragraphs (a)(l)-(2) and (4)-(8) of § 9403 if Stellwagen Bank FEIS/MP Appendices Page AlO conducted in accordance with the scope, purpose, manner, terms and conditions of a permit issued under this § 940.9. (b) Applications for such permits should be addressed to the Director of the Office of Ocean and Coastal Resource Management; ATTN: Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910. An appUcation must include a detailed description of the proposed activity including a timetable for completion of the activity and the equipment, personnel and methodology to be employed. The qualifications and experience of all personnel must be set forth in the application. The application must set forth the potential effects of the activity, if any, on Sanctuary resources and Sanctuary qualities. Copies of all other required Ucenses, permits, approvals or other authorizations must be attached. (c) Upon receipt of an appUcation, the Director or designee may request such additional information from the apphcant as he or she deems necessary to act on the application and may seek the views of any persons. (d) The Director or designee, at his or her discretion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by paragraphs (a)(l)-(2) and (4)-(8) of § 940.5, if the Director or designee finds that the activity will have only negUgible short-term adverse effects on Sanctuary resources and qualities and will: further research related to Sanctuary resources and qualities; further the educational, natural or historical resource value of the Sanctuary; further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; assist in managing the Sanctuary. In deciding whether to issue a permit, the Director or designee may also consider such factors as: the professional qualifications and fmancial ability of the appUcant as related to the proposed activity; the duration of the activity and the duration of its effects; the appropriateness of the methods and procedures proposed by the applicant for the conduct of the activity; the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; and the end value of the activity. In addition, the Director or designee may consider such other factors as he or she deems appropriate. (e) A permit issued pursuant to this § 940.9 is nontransferable. (f) The Director or designee may amend, suspend or revoke a permit issued pursuant to this § 940.9 for good cause. The Director or designee may deny a permit application pursuant to this § 940.9, in whole or in part, if it is determined that the permittee or applicant has acted in violation of the terms or conditions of a permit or of these regulations or for other good cause. Any such action shall be communicated in writing to the permittee or apphcant by certified mail and shall set forth the reason(s) for the action taken. Procedures governing permit sanctions and denials for enforcement reasons are set forth in Subpart D of 15 CFR Part 904. (g) It shall be a condition of any permit issued that the permit or a copy thereof be displayed on board all vessels or aircraft used in the conduct of the activity. (h) The Director or designee may, inter aha, make it a condition of any permit issued that any data or information obtained under the permit be made available to the pubUc. (i) The Director or designee may, inter aha, make it a condition of any permit issued that a NOAA official be allowed to observe any activity conducted under the permit and/or that the permit holder submit one or more reports on the statxis, progress or results of any activity authorized by the permit. Stellwagen Bank FEIS/MP Appendices Page All (j) The applicant for or holder of a National Marine Sanctuary permit may appeal the denial, conditioning, amendment, suspension or revocation of the permit in accordance with the procedures set forth in § 940.12. § 940.10 Certification of pre-existing leases, licenses, permits, approvals, other authorizations, or rights to conduct a prohibited activity. (a) The prohibitions in paragraphs (a)(l)-(2) and (4)-(8) of § 940.5 do not apply to any activity authorized by a vahd lease, permit, Ucense, approval or other authorization in existence on the effective date of Sanctuary designation and issued by any Federal, State or local authority of competent jurisdiction, or by any vahd right of subsistence use or access in existence on the effective date of Sanctuary designation, provided that: 1) the holder of such authorization or right notifies the Director or designee, in writing, within 90 days of the effective date of Sanctuary regulations, of the existence of such authorization or right and requests certification of such authorization or right; 2) the holder comphes with the other provisions of this § 940.10; and 3) the holder comphes with any terms and conditions on the exercise of such authorization or right imposed as a condition of certification, by the Director or designee, to achieve the purposes for which the Sanctuary was designated. (b) The owner or holder of a vahd lease, permit, hcense, approval or other authorization in existence on the effective date of Sanctuary designation and issued by any Federal, State or local authority of competent jurisdiction, or of any vahd right of subsistence use or access in existence on the effective date of Sanctuary designation, authorizing an activity prohibited by paragraphs (a)(l)-(2) and (4)-(8) of § 940.5 may conduct the activity without being in violation of § 940.5, pending fmal agency action on his or her certification request, provided the holder is in comphance with this § 940.10. (c) Any holder of a vahd lease, permit, Ucense, approval or other authorization in existence on the effective date of Sanctuary designation and issued by any Federal, State or local authority of competent jurisdiction, or any holder of a vahd right of subsistence use or access in existence on the effective date of Sanctuary designation may request the Director or designee to issue a finding as to whether the activity for which the authorization has been issued, or the right given, is prohibited under paragraphs (a)(l)-(2) and (4)-(8) of §940.5. (d) Requests for fmdings or certifications should be addressed to the Director, Office of Ocean and Coastal Resource Management; ATTN: Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic Jind Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910. A copy of the lease, permit, Ucense, approval or other authorization must accompany the request. (e) The Director or designee may request additional information from the certification requester as he or she deems necessary to condition appropriately the exercise of the certified authorization or right to achieve the purposes for which the Sanctuary was designated. The information requested must be received by the Director or designee within 45 days of the postmark date of the request. The Director or designee may seek the views of any persons on the certification request. (f) The Director or designee may amend any certification made under this § 940.10 whenever additional information becomes available justifying such an amendment. (g) The Director or designee shaL communicate any decision on a certification request or any action taken with respect to any certification made under this § 940.10, in writing, to both the holder of the certified lease, permit, Ucense, approval, other authorization or right, and the issuing agency, and shaU set forth the reason(s) for the decision or action taken. Stellwagen Bank FEIS/MP Appendices Page A12 (h) Any time limit prescribed in or established imder this § 940.10 may be extended by the Director or designee for good cause. (i) The holder may appeal any action conditioning, cimending, suspending or revoking any certification in accordance with the procedures set forth in § 940.12. (j) Any amendment, renewal or extension not in existence on the effective date of Sanctuary designation of a lease, permit, Ucense, approval, other authorization or right is subject to the provisions of § 940.11. § 940.11 Notincation and review of applications for leases, licenses, permits, approvals, or other authorizations to conduct a prohibited activity. (a) The prohibitions set forth in paragraphs (a)(l)-(2) and (4)-(8) of § 940.5 do not apply to any activity authorized by any vahd lease, permit, hcense, approval or other authorization issued after the effective date of Sanctuary designation by any Federal, State or local authority of competent jurisdiction, provided that: 1) the apphcant notifies the Director or designee, in writing, of the application for such authorization (and of any apphcation for an amendment, renewal or extension of such authorization) within fifteen (15) days of the date of apphcation or of the effective date of Sanctuary regulations, whichever is later; 2) the apphcant comphes with the other provisions of this § 940.11; 3) the Director or designee notifies the apphcant and authorizing agency that he or she does not object to issuance of the authorization (or amendment, renewal or extension); and 4) the apphcant comphes with any terms and conditions the Director or designee deems necessary to protect Sanctuary resources and quahties. (b) Any potential apphcant for a lease, permit, hcense, approval or other authorization from any Federal, State or local authority (or for an amendment, renewal or extension of such authorization) may request the Director or designee to issue a fmding as to whether the activity for which an apphcation is intended to be made is prohibited by paragraphs (a)(l)-(2) juid (4)-(8) of § 940.5. (c) Notification of filings of apphcations and requests for findings should be addressed to the Director, Office of Ocean and Coastal Resource Management; ATTN: Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910. A copy of the apphcation must accompany the notification. (d) The Director or designee may request additional information from the apphcant as he or she deems necessary to determine whether to object to issuance of such lease, hcense, permit, approval or other authorization (or to issuance of an amendment, extension or renewal of such authorization), or what terms and conditions are necessary to protect Sanctuary resources and quahties. The information requested must be received by the Director or designee within 45 days of the postmark date of the request. The Director or designee may seek the views of any persons on the apphcation. (e) The Director or designee shall notify, in writing, the agency to which application has been made of his or her review of the apphcation and possible objection to issuance. After review of the apphcation and information received with respect thereto, the Director or designee shaU notify both the agency and apphcant, in writing, whether he or she has an objection to issuance and what terms and conditions he or she deems necessary to protect Sanctuary resources and quahties. The Director or designee shall state the reason(s) for any objection or the reason(s) that any terms and conditions are deemed necessary to protect Sanctuary resources and quahties. Stellwagen Bank FEIS/MP Appendices Page A13 (f) The Director or designee may amend the terms and conditions deemed necessary to protect Sanctuary resources and quaUties whenever additional information becomes available justifying such an amendment. (g) Any time limit prescribed in or established under this § 940.11 may be extended by the Director or designee for good cause. (h) The applicant may appeal any objection by, or terms or conditions imposed by, the Director or designee to the Assistant Administrator of designee in accordance with the provisions set forth in § 940.12. § 940.12 Appeals of administrative action. (a) Except for permit actions taken for enforcement reasons (see Subpart D of 15 CFR Part 904 for applicable procedures), an applicant for, or a holder of, a § 940.9 National Marine Sanctuary permit, an appUcant for, or a holder of, a Section 310 of the Act Special Use permit, a § 940.10 certification requester or a § 940.11 apphcant (hereinafter appellant) may appeal to the Assistant Administrator or designee: 1) the grant, denial, conditioning, amendment, suspension or revocation by the Director or designee of a National Marine Sanctuary or Special Use permit; 2) the conditioning, amendment, suspension or revocation of a certification under § 940.10; or 3) the objection to issuance or the imposition of terms and conditions under § 940.11. (b) An appeal under paragraph (a) of this § 940.12 must be in writing, state the action(s) by the Director or designee appealed and the reason(s) for the appeal, and be received within 30 days of receipt of notice of the action by the Director or designee. Appeals should be addressed to the Assistant Administrator, Office of Ocean and Coastal Resource Management, ATTN: Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910. (c) While the appeal is pending, appellants requesting certification pursuant to § 940.10 who are in compliance with such section may continue to conduct their activities without being in violation of the prohibitions in paragraphs (a)(l)-(2) and (4)-(8) of § 940.5. All other appellants may not conduct their activities without being subject to the prohibitions in paragraphs (a)(l)-(2) and (4)-(9) of § 940.5. (d) The Assistant Administrator or designee may request the appellant to submit such information as the Assistant Administrator or designee deems necessary in order for him or her to decide the appeal. The information requested must be received by the Assistant Administrator or designee within 45 days of the postmark date of the request. The Assistant Administrator may seek the views of any other persons. The Assistant Administrator or designee may hold an informal hearing on the appeal. If the Assistant Administrator or designee determines that an informal hearing should be held, the Assistant Administrator or designee may designate an officer before whom the hearing shall be held. The hearing officer shall give notice in the Federal Register of the time, place, and subject matter of the hearing. The appellant and the Director or designee may appear personally or by counsel at the hearing and submit such material and present such jirguments as deemed appropriate by the hearing officer. Within 60 days after the record for the hearing closes, the hearing officer shall recommend a decision in writing to the Assistant Administrator or designee. (e) The Assistant Administrator or designee shall decide the appeal using the same regulatory criteria as for the initial decision jmd shall base the appeal decision on the record before the Director or designee and any information submitted regarding the appeal, and, if a hearing has been held, on the record before the hearing officer and the hearing officer S recommended decision. The Assistant Administrator or designee shall notify the appellant of the final decision and the reason(s) therefor in writing. The Assistant Stellwagen Bank FEIS/MP Appendices Fage A14 Administrator or designee S decision shall constitute final agency action for the purposes of the Administrative Procedure Act. (f) Any time Umit prescribed in or established under this § 940.12 other than the 30 day Umit for filing appeal may be extended by the Assistant Administrator, designee, or hearing officer for good cause. an Stellwagen Bank FEIS/MP Appendices Page A15 Appendix I to Part 940 - Stellwagen Bank National Marine Sanctuary Boundary Coordinates. (Appendix Based on North American Datum of 1927). 638 Square Nautical Miles LORAN LATITUDE LONGITUDE 9960W 9960X El 42 45 59.83 70 13 01.77 13,607.19 25,728.57 E2 42 05 35.51 70 02 08.14 D,753.39 25,401.78 E3 42 06 18.25 70 03 17.55 13,756.72 25,412.46 E4 42 06 29.53 70 04 03.36 13,760.30 25,417.53 E5 42 07 02.70 70 05 13.61 13,764.52 25,427.27 E6 42 07 13.80 70 06 23.75 13,770.54 25,434.45 E7 42 07 35.95 70 07 27.89 13,775.08 25,442.51 E8 42 07.42.33 70 08 26.07 13,780.35 25,448.27 E9 42 07 59.94 70 09 19.78 13,784.24 25,455.02 ElO 42 08 04.95 70 10 24.40 13,790.27 25,461.28 Ell 42 07 55.19 70 11 47.67 13,799.38 25,467.56 E12 42 07 59.84 70 13 03.35 13,806.58 25,474.95 E13 42 07 46.55 70 14 21.91 13,815.52 25,480.62 E14 42 07 27.29 70 15 22.95 13,823.21 25,484.05 E15 42 06 54.57 70 16 42.71 13,833.88 25,487.79 E16 42 07 44.89 70 28 15.44 13,900.14 25,563.22 E17 42 32 53.52 70 35 52.38 13,821.60 25,773.51 E18 42 33 30.24 70 35 14.96 13,814.43 25,773.54 E19 42 33 48.14 70 35 03.81 13,811.68 25,774.28 E20 42 34 30.45 70 34 22.98 13,803.64 25,774.59 E21 42 34 50.37 70 33 21.93 13,795.43 25,770.55 E22 42 35 16.08 70 32 32.29 13,787.92 25,768.31 E23 42 35 41.80 70 31 44.20 13,780.57 25,766.25 E24 42 36 23.08 70 30 58.98 13,772.14 25,766.14 E25 42 37 15.51 70 30 23.01 D,763.69 25,768.12 E26 42 37 58.88 70 30 06.60 13,758.09 25,771.07 E27 42 38 32.46 70 30 06.54 13,755.07 25,774.58 E28 42 39 04.08 70 30 11.29 13,752.75 25,778.35 Stellwagen Bank FEIS/MP Appendices Pqge Bl APPENDIX B: EXISTING FEDERAL AND STATE AUTHORITIES RELEVANT TO MANAGEMENT JURISDICTION Introduction Appendix B presents an overview of the various Federal and State management authorities which provide statutory responsibility for protecting marine resources in the area of the proposed Stellwagen Bank National Marine Sanctuary. The following discussion describes relevant legislative mandates, and administrative measures taken to implement those mandates. Federal Authorities Federal statutes vary greatly in scope and approach, ranging from broad-based legislation addressing resource conservation and environmental protection (such as the Magnuson Fishery Conservation and Management Act), to regulation of specific activities and resources. Magnuson Fishery Conservation and Management Act (MFCMA), 16 U.S.C. § 1801 et seq. The MFCMA provides for the conservation and management of all fishery resources between 3 and 200 nm (5.6 and 370 km) offshore. The National Marine Fisheries Service (NMFS), NOAA, Department of Commerce is charged with establishing guidelines for and approving fishery management plans (FMPs) prepared by regional fishery management councils for selected fisheries. These plans determine the levels of commercial and sport fishing consistent with achieving and maintaining the optimum yield of each fishery. The waters of the study area are within the jurisdiction of the New England Fishery Management Council (NEFMC). Benthic continental shelf fishery resources located outside state waters, such as lobster and crabs, are subject to management under the MFCMA. Within Federal waters the MFCMA is enforced by the U.S. Coast Guard (USCG) and NMFS. The Act empowers the Secretary of Commerce to enter into agreements with any State agency for enforcement purposes in State waters. Such an agreement exists between the CDFG and NMFS whereby both parties have been deputized to enforce each other's laws. As a result, NEFMC fishery plan enforcement personnel can now enforce State law within 3 nm (5.6 km) and State officers can enforce Federal laws between 3 and 200 nm (5.6 and 370 km). The waters of the proposed Stellwagen Bank National Marine Sanctuary are within the primary jurisdiction of the New England Regional Fishery Management Council (NEFMC); some FMP's developed by the Mid-Atlantic Fishery Management Council and the Atlantic States Fishery Management Council are also appUcable to fisheries occurring within the proposed Sanctuary. FMP's are currently in place for: American lobster; Atlantic sea scallop; northern shrimp; multi-species (covering cod, haddock, pollack, redfish, yellowtail flounder, winter flounder, American plaice, witch flounder, windowpane flounder, white hake, red hake, silver hake, and ocean pout); Atlantic salmon; bluefish; summer floimder; butterfish; squid; quahog; surf clam; and mackerel. Atlantic Tunas Convention Act of 1975 (16 USC § 971 et. seq.). The Atlantic Timas Convention Act authorizes the Secretary of Commerce to implement the recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT). This authority has been delegated to the Assistant Administrator for Fisheries. Established in 1969, the Convention is responsible for the management of the Atlantic bluefm tuna (Thunnus thvimus) in the Atlantic Ocean and adjacent seas. After national quotas and other management measures are established by ICCAT, the National Marine Fisheries Stellwagen Bank FEIS/MP Appendices Page B2 Service establishes U.S. quotas and regulations for commercial and recreational fishing. Atlantic Fisheries Act of 1942. as amended. This act authorized the creation of the Atlantic States Marine Fisheries Commission. The Commission is composed of all Atlantic coastal states, each represented by the head of the fisheries administrative agency, a legislative appointee, and a governor's appointee, The Commission provides a forum for discussion and resolution of common fishery problems. Under Amendment I of its charter, the states can develop joint management regulations for fishery resources primarily in state waters and shared by one or more states. Under contract from the NMFS, the Commission administers the Federally-funded Interstate Fisheries Management Program. Interstate fisheries management plans include northern shrimp, lobster, striped bass, ^lnd summer flounder. Endangered Species Act (ESA). 16 U.S.C. §§ 1531-1543. The Federal Endangered Species program provides protection for hsted species of animals and plants in both State waters and the waters beyond. The U.S. Fish and Wildlife Service (FWS) and NMFS determine which species need protection and maintain a hst of endangered and threatened species. One of the most significant protections provided by the Endangered Species Act is the prohibition on taking. The term "take" is defmed broadly to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct" (16 USC §1532(19)). The FWS regulations defme the term "harm" to mean an act which actually kills or injures wildlife, including significant habitat modification or degradation where it actually kills or injures wildhfe by significantly impairing essentieil behavioral patterns, including breeding, feeding or sheltering. The regulations defme the term "harass" to mean "an intentional or negligent act or omission which creates the likelihood of injury to wildUfe by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering" (50 CFR 17.3). The Endangered Species Act also provides for the indirect protection of endangered species and their habitats by estabhshing a consultation process designed to insure that projects authorized, funded or carried out by Federal agencies are not likely to jeopardize the continued existence of endangered or threatened species, or "result in the destruction or modification of habitat of such species which is determined adverse... to be critical" (16 USC §1536). Critical habitat areas for endangered species are designated by the FWS and NMFS. The 1978 amendments to the Act establish a Cabinet level committee authorized to exempt Federal agencies (through an elaborate review process) from compliance with their responsibihties with regard to the jeopardy standard and critical habitat. Several endangered marine mammal species occur within the proposed Sanctuary area, including: the humpback whale, fm whale, northern right whale, sei whale, and blue whale. Listed species of marine reptiles include: the leatherback sea turtle (E), loggerhead sea turtle (T), Kemp's (or Atlantic) ridley sea turtle (E), and green sea turtle (T). Marine mammals and marine reptiles listed under the ESA are the responsibihty of the National Marine Fisheries Service. Listed species of birds occurring within the proposed Sanctuary area are: the peregrine falcon (E), bald eagle (E), roseate tern (E), and piping plover (T). These species are the responsibility of the Fish and Wildlife Service. Although no critical habitat area occurring within the proposed Sanctuary has been established for any of these species, the Right Whale Recovery Team has petitioned the National Marine Fisheries Service to estabUsh critical habitat for the northern right whale in waters incorporating part of the proposed Sanctuary (55 FR 28670, July 12, 1990). Stellwagen Bank FEIS/MP Appendices Pqge B3 Marine Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361 et seg. The MMPA provides protection to marine mammals in both State waters and the waters beyond. It is designed to protect all species of miirine mammals. As specified in the MMPA, the Department of Interior, U.S. Fish and Wildlife Service (FWS), is responsible for the management of polar bears, walrus (a pinniped), northern and southern sea otters, three species of manatees, and dugong; and Department of Commerce, National Marine Fisheries Service (NMFS), is responsible for all other marine mammals. The Marine Mammal Commission advises these implementing agencies and sponsors relevant scientific research. The primary management features of the Act include: 1) a moratorium on "taking" of marine mammals; 2) the development of a management approach designed to achieve an "optimum sustainable population" (OSP) for all species or population stocks of marine mammals; and 3) protection of populations determined to be "depleted". MMPA defines "take" broadly to include "harass, hunt, capture, or kill, or attempt to hEirass, hunt, capture, or kill any marine mammal" (16 USC §1362(12)). The term "harass" has been interpreted to encompass acts unintentionally adversely affecting marine mammals, such as operation of motor boats in waters in which these animals are found. The MMPA aUows certain exceptions to the moratorium. First, the Secretary may issue permits for public display or scientific research. Second, the Secretary may grant exemptions for takes of small numbers of marine mammals incidental to other lawful activities. Third, the Secretary may make a special waiver of the moratorium on taking for particular species or populations of marine mammals provided that the species or population being considered is at or above its determined optimum sustainable population. No such waiver, however, has been granted concerning any marine mammal found in the area under consideration. Marine mammal species whose population is determined to be depleted receive additional protection. Under only limited circumstances may permits be issued for the taking of any marine mammal determined to be depleted, including but not limited to scientific research and enhancing the survival or recovery of a species or stock of depleted species. The 1988 amendments to the MMPA added requirements that observers be carried aboard commercial fishing vessels to determine levels of incidental take of marine mammals. Commercial fishing activities are divided into categories on the basis of gear-type and associated levels of potential incidental take of marine mammals. For example. Category 1 vessels such as gillnetters may have to carry an observer if requested by NMFS and the Secretary of Commerce may place observers on vessels in Categories 2 and 3 with the consent of the vessel owner. This observer program has been in operation since early 1990 and although the authority for its management is with the NMFS the day-to-day operational management may be delegated to state and local authorities. Marine mammal species whose populations are determined to be "depleted" receive additional protection under the MMPA. With the exception of scientific research permits, no permits for taking depleted species may be issued. Species occurring within the area of the proposed Sanctuary which have been determined to be depleted include the humpback whale, fm whale, northern right whale, sei whale, and blue whale, based on their "endangered" status under the Endangered Species Act. Migratory Bird Treaty Act (MBTA) (16 USC §703 et seg.) The essential provision of the Migratory Bird Treaty Act, which implements conventions with Great Britain, Mexico, the USSR and Japan makes it unlawful except as permitted by regulations "to pursue, hunt, take, capture, kill... any migratory bird, any part, nest or egg" or any product of any such bird protected by the Convention (16 USC §703). The Secretary of the Interior is charged with determining when, and to what extent, if at all, and by what means to permit these activities. Each treaty establishes a "closed season" during which no hunting is permitted. A distinction is made between game and nongame birds. The closed season for Stellwagen Bank FEIS/MP Appendices Pqge B4 migratory birds other than game birds is year-round. Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seg. It is the goal of the CWA to restore and maintain the chemical, physical, and biological integrity of the nation's waters. To varying degrees, navigable waters of the United States, the contiguous zone, and the oceans beyond are subject to requirements of the CWA. The CWA's chief mechanism for preventing and reducing water pollution is the National Pollutant Discharge EUmination System (NPDES), administered by the Environmental Protection Agency (EPA). Under the NPDES program, a permit is required for the discharge of any pollutant from a point source into the navigable waters of the United States, the waters of the contiguous zone, or ocean waters. Since oil and gas development pursuant to Federal lease sales occur beyond State waters, an NPDES permit from EPA is required for discharges associated with this activity. EPA generally grants NPDES permits for offshore oil and gas developments based on pubUshed effluent guidelines (40 CFR Part 435). Other conditions beyond these guidelines may, however, be imposed by the Regional Administrator on a case-by-case basis. The CWA prohibits the discharge of oil or hazardous substances in quantities that may be harmful to the public health or welfare or the environment, including but not limited to fish, shellfish, wildlife, and pubUc and private property, shorehnes and beaches into or upon the navigable waters of the U.S., adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the U.S., except, in the case of such discharges into or upon the waters of the contiguous zone or which may affect the above-mentioned natural resources, where permitted under the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships. When harmful discharges do take place, the National Contingency Plan (NCP) for the removal of oil and hazardous substance discharges (40 CFR Part 300), which is designed to minimize the impacts on marine resources, takes effect. The USCG, in cooperation with EPA, administers the NCP. The NCP establishes the organizational framework whereby oil and hazardous substance spills are to be cleaned up. To carry out the NCP, regional plans have been established; the USCG has issued such a plan for Federal Region IX which encompasses the study area. Under the plan. Coast Guard personnel are to investigate all reported offshore spills, notify the party responsible (if known) of its obhgation to clean up the spill, and supervise the clean-up operation. The Coast Guard retains final authority over the procedures and equipment used in the cleanup. If the party responsible for the spill does not promptly begin cleanup operations, the Coast Guard may hire private organizations. The CWA also requires that publicly owned sewage treatment works meet effluent limitations based on effluent reductions attainable through the apphcation of secondary treatment by July 1, 1977 [33 USC §1311(b)(l)]. EPA does have the authority, however, to waive the July 1, 1977 deadline for secondary treatment for discharges into marine waters under certain circumstances (33 USC §Dll(h)). Due to the unusual depth of marine waters off the CaUfornia coast, some municipal sewage treatment works in CaUfornia discharging into marine waters have requested waivers from secondary treatment requirements (43 F.R. 17484 (4/25/78)). Permits from the Army Corps of Engineers, (COE) which are based on EPA guidelines, are required prior to the discharge of dredged or fill materials into navigable waters that he inside the baseline from which the territorial sea (defined to be three nautical miles of shore) is measured and fill materials into the territorial sea (33 USC § 1344; 40 CFR 230.2). Stellwagen Bank FEIS/MP Appendices Pa^ B5 Finally, the CWA requires vessels to comply with marine sanitation regulations issued by EPA and enforced by the USCG (33 USC § 1322). Rivers and Harbors Act of 1899 (RHA), 33 U.S.C. §§ 401 et seq. Section 10 (33 USC 403) prohibits the unauthorized obstruction of navigable waters of the United States. The construction of any structure or any excavation or fdl activity in the navigable waters of the U.S. is prohibited without a permit from the COE. Section 13 (33 U.S.C. 407) prohibits the discharge of refuse into navigable waters of the U.S., but has been largely superseded by the CWA, discussed above. Ports and Waterwavs Safety Act (PWSA), 33 U.S.C. §§ 1231 et seg. The Ports and Waterways Safety Act (PWSA), as amended by the Port and Tanker Safety Act of 1978 ( and the Oil Pollution Act of 1990), is designed to promote navigation and vessel safety and the protection of the marine environment. The PWSA appUes both in state waters and the waters beyond out to 200 nautical miles. The PWSA authorizes the U.S. Coast Guard to construct, operate, maintain, improve or expand vessel traffic services and control vessel traffic in ports, harbors, and other waters subject to congested vessel traffic. The Oil Pollution Act of 1990 amends the PWSA to mandate that the USCG "require appropriate vessels which operate in the area of a vessel traffic service to utilize or comply with that service." In addition to vessel traffic control, the U.S. Coast Guard regidates other navigational and shipping activities. It has promulgated numerous regulations relating to vessel design, construction, and operation designed to minimize the likelihood of an accident and reduce vessel source pollution. The 1978 amendments of the PWSA estabUsh a comprehensive program for regulating the design, construction, operation, equipping, and banning of all tankers using U.S. ports to transfer oil and hazardous materials. These requirements are, for the most part, in agreement with protocols (passed in 1978) to the International Convention for the Prevention of Pollution from Ships, 1973, and the International Convention on Safety of Life at Sea, 1974. The U.S. Coast Guard is also vested with the primary responsibility for maintaining boater s£ifety, including the tasks of conducting routine vessel inspections and coordinating rescue operations. Under the PWSA, the Coast Guard estabhshes vessel traffic services and systems for ports, harbors and other waters subject to congested vessel traffic. Within the area of the proposed Sanctuary, a vessel traffic separation scheme (VTSS) has been established directly across Stellwagen Bank, to service the major port of Boston. PWSA regulations also address vessel design, construction, and operation, and are designed to reduce vessel accidents and vessel soiuce pollution. Act to Prevent Pollution from Ships (APPS), 33 U.S.C. §§ 1901 et ^eg. The International Convention for the Prevention of Pollution of the Sea by Oil, 1954, and the Oil Pollution Act of 1961 have been superseded by the Internationjd Convention for the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol relating thereto (MARPOL 73/78) and implemented by the Act to Prevent Pollution from Ships, 1980, as amended m 1982, 1987 (APPS). APPS, in implementing Annex I of MARPOL 73/78, regulates the discharge of oil and oily mixtures from seagoing ships, including oil tjmkers. APPS, in implementing Annex II of MARPOL 73/78, regulates the discharge of noxious Uquid substances from seagoing ships. Enforcement of the Act is the responsibility of the USCG. Stellwagen Bank FEIS/MP Appendices Pa^ B6 When more than 12 nautical miles from the nearest land, any discharge of oil or oily mixtures into the sea from a ship subject to APPS other than an oil tanker or from machinery space bilges of an oil tanker subject to APPS is prohibited except when: 1) the oil or oily mixture does not originate from cargo pump room bilges; 2) the oil or oily mixture is not mixed with oil cargo residues; 3) the ship is not within a Special Area (the study area is not a Special Area for purposes of APPS); 4) the ship is proceeding en route; 5) the oil content of the effluent without dilution is less than 100 parts per million (ppm); and 6) the ship has in operation oily- water separating equipment, a bilge monitor, bilge alarm or combination thereof. 33 CFR 151.10(a). The restrictions on discharges 12 nautical miles or less from the nearest land are more stringent. When within 12 nautical miles of the nearest land, any discharge of oil or oily mixtures into the sea from a ship other than an oil tanker or from machinery space bilges of an oil tanker is prohibited except when: 1) the oil or oily mixture does not originate from cargo pump room bilges; 2) the oil or oily mixture is not mixed with oU cargo residues; 3) the oil content of the effluent without dilution does not exceed 15 ppm; 4) the ship has in operation oily-water separating equipment, a bilge monitor, bilge alarm, or combination thereof; and 5) the oily-water separating equipment is equipped with a 15 ppm bilge alarm. NOTE: In the navigable waters of the U.S., the CWA, section 311(b)(3) and 40 CFR 110 govern all discharges of oil and oily mbrtures. 33 CFR 151.10(b). A tank vessel subject to APPS may not discharge an oily mixture into the sea from a cargo tank, slop tank or cargo pump bilge unless the vessel: 1) is more than 50 nautical miles from the nearest land; 2) is proceeding en route; 3) is discharging at an instantaneous rate of oil content not exceeding 60 hters per nautical mile; 4) is an existing vessel and the total quantity of oil discharged into the sea does not exceed 1/15000 of the total quantity of the cargo that the discharge formed a part (1/30000 for new vessels); 5) discharges, with certain exceptions, through the above waterline discharge point; 6) has in operation a cargo monitor and control system that is designed for use with the oily mixture being discharged; and 7) is outside the Special Areas. 33 CFR 157.37. APPS is amended by the Marine Plastic Pollution Research and Control Act of 1987 (MPPRCA), which implements Annex V of MARPOL 73/78 in the U.S. The MPPRCA and implementing regulations at 33 CFR 151.51 to 151.77 apply to U.S. Ships (except warships and ships owned or operated by the U.S.) everywhere, including recreational vessels, and to other ships subject to MARPOL 73/78 while in the navigable waters or the Exclusive Economic Zone of the U.S. They prohibit the discharge of plastic or garbage mixed with plastic into any waters and the discharge of dunnage, hning and packing materials that float within 25 nautical miles of the nearest land. Other unground garbage may be discharged beyond 12 nautical miles from the nearest land. Other garbage ground to less than one inch may be discharged beyond three nautical miles of the nearest land. Fixed and floating platforms and associated vessels are subject to more stringent restrictions. "Garbage" is defined as all kinds of victual, domestic and operational waste, excluding fresh fish and parts thereof, generated during the normal operations of the ship and Uable to be disposed of continuously or periodically except dishwater, graywater and certain substances. 33 CFR 151.05. Oil Pollution Act of 1990 (OPA) (P.L. 101-380, 33 USC 2701 et seg.) The Oil Pollution Act of 1990 (OPA) creates a comprehensive prevention, response, Uability, and compensation regime for dealing with vessel and faciUty-caused oil pollution. The OPA provides for environmental safegu2irds in oil transportation greater than those existing before its passage by: setting new standards for vessel construction, crew licensing, and manning; providing for better contingency planning; enhancing Federal response capabiUty; broadening enforcement authority; increasing penalties; and authorizing multi-agency research and development. A one biUion dollar trust fund is available to cover clean-up costs and damages not compensated by the spiller. Title I creates a Uabihty and compensation regime for tank vessel and facihty-source oil pollution. Any party Stellwagen Bank FEIS/MP Appendices Pqge B7 responsible for the discharge, or the substantial threat of discharge, of oil into navigable waters or adjoining shorelines or the Exclusive Economic Zone is liable for the removal costs and damages, including assessment costs; for injury, destruction, loss or loss of use of natural resources, injury to, or economic losses resulting from destruction of real or personal property; subsistence use of natural resources, net lost govenmient revenues, lost profits or impairment of earning capacity; and net costs of providing increased or additional public services during or after removal activities. NOAA has the responsibility of promulgating damage assessment regulations and following the regulations will create a rebuttable presumption in favor of a given assessment. Sums recovered by a trustee for natural resource damages will be retained in a revolving trust account to reimburse or pay costs incurred by the trustee with respect to those resources. Title II makes numerous amendments to conform to other Federal statutes, particularly section 311 of the Clean Water Act, to the provisions of the Oil Pollution Act. Title III encourages the estabUshment of an international inventory of spill removal equipment and personnel. Title IV is divided into three subtitles: A) Prevention; B) Removal; and C) Penalties and Miscellaneous. Subtitle A gives added responsibihty to the Coast Guard regarding merchant marine personnel, including the review of alcohol and drug abuse and review of criminal records prior to issuance and renewal of documentation. It also amends the Ports and Waterways Safety Act to: require the Coast Guard to "require appropriate vessels which operate in an area of a vessel traffic service to utilize or comply with that service." and 2) authorize the construction, improvement and expansion of vessel traffic services. Further, Subtitle A establishes double hull requirements for tank vessels. Most tank vessels over 5,000 gross tons will be required to have double hulls by 2010, while vessels under 5,000 gross tons will be required to have a double hull or double containment systems by 2015. All newly constructed tankers must contain a double hull (or double containment system if under 5,000 gross tons), while existing vessels are phased out over a period of years. Subtitle B amends subsection 311(c) of the Clean Water Act, requiring the Federal Government to ensure effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a hazardous substance into or on the navigable waters, on the adjoining shorelines, into or on the waters of the Exclusive Economic Zone, or that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the U.S. It also requires a revision and repubUcation of the National Contingency Plan within one year which will include, among other things, a Fish and Wildlife response plan developed in consultation with NOAA and U.S. Fish and Wildlife Service. Nothing in Subtitle B preempts the rights of States to require stricter standards for removal actions. Subtitle C alters and increases civil and administrative penalties for illegal discharges and violations of regulations promulgated under the Clean Water Act. Title VII authorizes an oil pollution research and technology development program, including the establishment of an interagency coordinating committee that is chaired by Department Of Transportation and composed of representatives from the Departments of Energy, the Interior, Transportation, Commerce (including NOAA), and Defense, Environmental Protection Agency, Federal Emergency Management Agency, National Aeronautics and Space Administration, as well as such other Federal agencies as the President may designate. Title IX amends the Oil Spill Liability Trust Fund and increases from $500 million to $1 billion the amount that can be spent on any single oil spill incident, of which no more than $500 miUion may be spent on natural resource damage, assessments and claims. Stellwagen Bank FEIS/MP Appendices Pa^ B8 Federal Aviation Act (49 USC §§1301 et. seg.) The Federal Aviation Act gives the Secretary of Transportation broad powers to promote air commerce and to regulate the use of navigable airspace to ensure aircraft safety and efficient use of such airspace. In furtherance of this mandate, the Federal Aviation Administration, within the Department of Transportation pubUshes aeronautical charts which provide a variety of information to pilots, including the location of sensitive areas which should be avoided. Clean Air Act (CAA) (42 USC §7401 et seg.) The Clean Air Act (CAA) sets general guidelines and minimal air quality standards on a nationwide basis in order to protect and enhance the quahty of the Nation's air resources. States are responsible for developing comprehensive plans for all regions within their boimdaries. Outer Continental Shelf Lands Act OCSLA (43 USC §1331 et seg.) The Outer Continental Shelf Lands Act, (OCSLA) as amended in 1978 and 1985, establishes Federal jurisdiction over the mineral resources of the Outer Continental Shelf (OCS) beyond 3 nm (5.6 km) and gives the Secretary of Interior primary responsibility for managing OCS mineral exploration and development. The Secretary's responsibility has been delegated to the Minerals Management Service (MMS). In unique or special areas, MMS may impose special lease stipulations designed to protect specific geological and biological phenomena. These stipulations may vary among lease sale tracts and sales. Lessees are required to include, in exploration and development and production plans, specific information concerning emissions and their potential impacts on coastal areas. Such authority includes the enforcement of regulations made pursuant to the OCSLA (30 CFR Parts 250 and 256) and the enforcement of stipulations appUcable to particular leases. In addition to DOI, both the Army Corps of Engineers (COE) and the U.S. Coast Guard (USCG) have responsibility over OCS mineral development to the extent that such development affects navigation. (43 USC 1333) COE is responsible for ensuring, through a permit system, that OCS structures, including pipelines, platforms, drill ships, and semi-submersibles, do not obstruct navigation. USCG ensures that structures on the OCS are properly marked and that safe working conditions aie maintained onboard. MMS is also charged with supervising OCS operations, including approval of exploration and development and production plans and appUcations for pipeline rights of way on the OCS. Title I of the Marine Protection. Research, and Sanctuaries Act (MPRSA) (33 USC §§1401 et seg.'). Title I of the Marine Protection, Research, and Sanctuaries Act (MPRSA), also known as the Ocean Dumping Act, prohibits: 1) any person from transporting, without a permit, from the U.S. any material for the purpose of dumping it into ocean waters (defined to mean those waters of the open seas lying seaward of the baseline from which the territorial sea is measured) and 2) in the case of a vessel or aircraft registered in the U.S. or flying the U.S. flag or in the case of a U.S. agency, any person from transporting, without a permit, from any location any material for the purpose of dumping it into ocean waters. Title I also prohibits any person from dumping, without a permit, into the "territorial sea," or the contiguous zone extending 12 nautical miles seaward from the baseUne of the territorial sea to the extent that it may affect the territorial sea or the territory of the U.S., any material transported from a location outside of the U.S. EPA regulates, through the issuance of permits, the transportation, for the purpose of dumping, and the dumping of all materials except dredged Stellwagen Bank FEIS/MP Appendices Pa^ B9 material; COE, the transportation, for the purpose of dumping, of dredged material. The COE permits are subject to EPA review and approval.. Title I also makes it unlawful after December 31, 1991, for any person to dump into ocean waters, or to transport for the purposes of dumping into ocean waters, sewage sludge or industrial waste. National Historic Preservation Act (NHPA) (16 USC §§ 470 et seq.;) The National Historic Preservation Act authorizes the Secretary of the Interior to maintain a National Register of "districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, and culture". Sites have been listed on the National Register which include or are composed entirely of ocean waters and submerged lands within state waters or on the Outer Continental Shelf. Any federal agency conducting, licensing, or assisting an undertaking which may affect a property Usted or eligible for listing on the National Register must prior to the action take into account the effect of the undertaking on the property and provide the Advisory Council on Historic Preservation a reasonable opportunity to comment on the proposed action (16 USC §470f). The basic criterion apphed by the Council is whether the undertaking will chcmge the quahty of the site's historic, architectural, archeological, or cultural character (36 CPK Part 800). Comprehensive Environmental Response. Compensation, and Liabilitv Act (CERCLA) (42 USC §§ 9601 et seq.) The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), whose principal purpose in the cleanup of hazardous waste sites, consists of four fundamental elements. First, it creates an information-gathering and evaluation system to help Federal and state governments categorize hazardous waste sites and prioritize responses. Second, CERCLA provides Federal authority to respond to releases of hazardous substances. Response actions are carried out pursuant to the National Contingency Plan (NCP). Third, CERCLA estabHshes a Hazardous Substance Trust Fund to pay for removal and remedial actions and related costs. Finally, CERCLA makes persons responsible for hazardous substance releases liable for costs of removal or remedial action incurred by the Federal or state government; other necessary costs of response incurred by others; damages for injury, destruction or loss of natural resources; and costs of any health assessment or health effects study carried out pursuant to the Act. State Authorities Because the proposed National Marine Sanctuary is located entirely outside State territorial waters, few State agencies have jurisdiction over the area proposed to be included in the boundary. However, certain State agencies do have jurisdiction over activities that occur within, or may be proposed for, the Samctuary. Massachusetts Coastal Zone Management Act of 1978 (Mass. General Laws Chapter 21A, Chapter 6A, Sections 2-7; 16 USC §§ 1451 et seq.1 MCZM is the principal planning and policy agency of the Commonwealth. Its jurisdiction of particular relevance here is all State territorial waters and any activity seaward of State territorial waters that will likely have a direct effect on the coastal zone. The MCZM Plan is embodied in a series of 27 program policies which direct activities proposed for the coastal waters and areas adjacent thereto. The policies deal with a broad range of issues, from protection of critical areas, to port and harbor operations, to offshore oil and gas development. Currently, the program policies are being rewritten in an effort to update the management plan. Ocean policy is an area that will likely see significant attention in the updated management plan. Stellwagen Bank FEIS/MP Appendices P^ BIO Massachusetts Ocean Sanctuaries Act (Massachusetts General Laws Chapter D2A, Sections 13-16, 18) The purpose of the Ocean Sanctuaries Program is to protect the five State-designated Ocean Sanctuaries from any exploitation, development, or activity which would seriously alter or otherwise endanger the ecology and appearance of the ocean, the seabed, or the subsoil of the seabed, or the Commonwealth waters adjacent to the Cape Cod National Seashore. The program is administered by the Massachusetts Department of Environmental Management, and is primarily implemented through coordination with State licensing and permitting agencies. Activities specifically prohibited in Ocean Sanctuaries include the building of any structiu-e on the seabed or under the subsoil; the construction or operation of offshore electrical generating stations; the removal of sand and gravel; oil and gas exploration and exploitation; and the dumping or discharge of commercial or industrial waste. Massachusetts Division of Marine Fisheries (Massachusetts General Law Chapter 130, Section 1-104) The function of the Massachusetts Division of Marine Fisheries is to manage and regulate all activities associated with the taking of fish and shellfish in the waters of the Commonwecdth. The Division also reviews and comments on proposals for activities in coastal and nearshore waters to insure that adverse impacts to marine resources are minimized. While the jurisdiction of the DMF is generally limited to State territorial waters, they are actively involved in a number of regional fisheries management programs which directly affect the Sanctuary. A number of State agencies have jurisdiction over activities which, while located outside the proposed Sanctuary, could adversely affect Sanctuary resources or qualities. Wetlands Protection Act (Massachusetts General Laws Chapter 131, Section 40) This authority is exercised primarily through the city or town conservation commission, with appeal to the Massachusetts Department of Environmental Protection. The Act protects wetland resource issues and attributes relevant to the Sanctuary, including fisheries, land containing shellfish, prevention of pollution, and wildlife habitat, and appUes to any activity which involves "dredging, filling, altering, or removing" within the resource area. As a part of this review. The State's Natiual Heritage and Endangered Species Program, evaluates the possible effects of the proposed activity on State-listed rare, threatened, and endangered species. Massachusetts Environmental Policy Act (Massachusetts General Laws Chapter 30, Sections 62-62H) The Massachusetts Environmental PoUcy Act (MEPA) provides for a coordinated State review of generally large and complicated projects, allowing more efficient collection of essential information covering a wide range of potential adverse enviroimiental impacts. The information collected during the MEPA process is to be used by regulatory agencies in their regulatory reviews. For example, dredging projects involving volumes of dredged material greater than 10,000 cubic yards would be reviewed by MEPA. Massachusetts Pubhc Waterfront Act (Massachusetts General Laws Chapter 91) This authority is primarily involved in the licensing of fill and structures in the tidelands of the Commonwealth, with a principal regulatory interest in preserving safe navigation and public access. Massachusetts Clean Waters Act (Massachusetts General Laws Chapter 21, Section 27) Along with delegated authority under provisions of the Clean Water Act at Section 401, the Department of Environmental Protection, Division of Water Pollution Control (DEP-DWPC) reviews discharges into waters of the Commonwealth. Their principal interest is the protection of water quahty. Stellwagen Bank FEIS/MP Appendices R^ Bll Massachusetts Board of Underwater Archaeological Resources (Massachusetts General Laws Chapter 6, Sections 179-180; Chapter 9, Section 26; Chapter 12, Section IID; Chapter 30, Section 61; Chapter 91, Sections 63, 72) The Board of Underwater Archaeological Resources (BUAR) is responsible for the protection and preservation of underwater archaeological resources in the waters of the Commonwealth. A permit from the Board is required for activities which affect resources under their jurisdiction. Stellwagen Bank FEIS/MP Appendices Pa^Cl APPENDIX C: ABBREVIATIONS APPS - Act to Prevent Pollution from Ships (33 USC §§ 1901 et seg.) BOM - Bureau of Mines, U.S. Department of the Interior BLM - Bureau of Land Management, U.S. Department of the Interior CERCLA - Comprehensive Environmental Response, Compensation and Liability Act COE - U.S. Corps of Engineers CWA - Clean Water Act (33 USC §§ 1251 et ieg.) CZMA - Coastal Zone Management Act of 1972 (16 USC §§ 1451 et seg.) CZMP - Coastal Zone Management Plan (CZMA) DAMOS - Disposal Area Monitoring Study (COE) DEIS/MP - Draft Environmental Impact Statement/Management Plan (SRD) DMF - Division of Marine Fisheries (Commonwealth of Massachusetts) DOD - U.S. Department of Defense DOI - U.S. Department of the Interior EIS - Environmental Impact Statement EOEA - Executive Office of Environmental Affairs (Commonwealth of Massachusetts) EPA - U.S. Environmental Protection Agency ESA - Endangered Species Act (16 USC §§ L531 - 1543) FADS - Foul Area Disposal Site (EPA/COE) FMC - Fishery Management Council FMP - Fishery Management Plan FWS - Fish and Wildlife Service, U.S. Department of the Interior HMGNE - Historic Maritime Group of New England ICCAT - International Convention for the Conservation of Atlantic Tunas LRA - List of Recommended Areas MAFMC - Mid Atlantic Fishery Management Council MBDS - Massachusetts Bay Disposal Site (EPA/COE) MBP - Massachusetts Bays Program MCZM - Massachusetts Coastal Zone Management Program MFCMA - Magnuson Fishery Conservation and Management Act (16 USC §§ 1801 et seg.) MMPA - Marine Mammal Protection Act (16 USC §§ 1361 et seg.) MMS - Minerals Management Service, U.S. Department of the Interior MP - Management Plan MPRSA - Marine Protection, Research and Sanctuaries Act (33 USC §§ 1401 et seg., 16 USC §§ 1431 et seg.) MWRA - Massachusetts Water Resources Authority NEFMC - New England Fishery Management Coimcil NEP - National Estuary Program NEPA - National Environmental Policy Act (42 USC §§ 4321 et seg.) NHPA - National Historic Preservation Act (16 USC §§ 470) NMFS - National Marine Fisheries Service, NOAA, U.S. Department of Commerce NMSP - National Marine Sanctuary Program (SRD) NOAA - National Oceanic and Atmospheric Administration, U.S. Department of Commerce NOMES - New England Offshore Mining Enviroimiental Study (DOI) NPDES - National Pollutant Discharge Elimination System NPS - National Park Service, U.S. Department of the Interior NRP - National Research Plan (SRD) OCRM - Office of Ocean and Coastal Resource Management, NOAA, U.S. Department of Commerce OCS - Outer Continental Shelf Stellwagen Bank FEIS/MP Appendices Pa^C2 OCSLA - Outer Continental Shelf Lands Act (43 USC §§ 1331 et sefl.) ODA - Ocean Dumping Act (Title I of MPRSA), (33 USC §§ 1401 et sefl.) OPCA - OU Pollution Control Act (33 U.S.C. § 2701) OSA - Ocean Sanctuaries Act (Commonwealth of Massachusetts) PDP - Program Development Plan (SRD) PWSA - Ports and Waterways Safety Act (33 USC §§ 1221 et sea.) RFP - Request for Proposals RHA - Rivers and Harbors Act of 1899 (33 USC §§ 402 et seq.'t SAC - Sanctuary Advisory Committee SBNMS - Stellwagen Bank National Marine Sanctuary SEL - Site Evaluation List SPD - Sanctuary Programs Division, NOAA, U.S. Department of Commerce (now called Sanctuaries and Reserves Division) SRD - Sanctuaries and Reserves Division SRP - Sanctuary Research Plan USCG - United States Coast Guard, U.S. Department of Transportation USGS - United States Geological Survey, U.S. Department of the Interior VTSS - Vessel Traffic Separation Scheme ZSF - Zone of Siting Feasibility (EPA) Stellwagen Bank FEIS/MP Appendices Pc^Dl APPENDIX D: NATIONAL REGISTER OF HISTORIC PLACES CRITERIA NATIONAL REGISTER OF HISTORIC PLACES CRITERIA Criterion A: A property may be registered if it is associated with events that have made a significant contribution to the broad patterns of our history. Criterion B: A property may be registered if it is associated with the hves of persons significant in oiu- past. Criterion C: A property may be registered if it embodies the characteristics of a type, period, or method or construction, represents the work of a master, possesses high artistic values, or represents a significant and distinguishable entity whose components may lack individual distinction. Criterion D: A property may be registered if it has yielded, or may be likely to yield information important in prehistory or history. Stellwagen Bank FEIS/MP Appendices Page El APPENDIX E: REFERENCES Ainley, D.G. 1980. Birds as Marine Organisms: A Review. CalCOFI Rept. 21:48-52. Cited from: Powers, K. D. 1983. Pelagic Distributions of Marine Birds Off the Northeastern United States.NOAA Technical Memorandum NMFS-F/NEC-27. Woods Hole, Massachusetts. Anon. 1979. Apparent Feeding by the Fin Whale and Humpback Whale on the American Sand Lance in the Northwest Atlantic. Fishery Bulletin. Atlantic States Marine Fisheries Commission. 1986. Fishery Management Plan for Northern Shrimp. Azarovitz, T. R. and M. D. Grosslein. 1987. Fishes and Squids, Chapter 30, Georges Bank. Massachusetts Institute of Technology Press. Bachus, R. and D. Bourne. 1987. Georges Bank. Massachusetts Institute of Technology Press. Baglin, R. E., Jr. 1982. Reproductive Biology of Western Atlantic bluefm tuna. Fishery Bulletin, 80(1):121-134. Barber, R. 1979. Volume II - Archaeology and Palaeontology, Summary and Analysis of Cultural Resources Information on the Continental Shelf from the Bay of Fundy to Cape Hatteras, Final Report. Cambridge, Massachusetts: Institute for Conservation Archaeology, Harvard University. Barr, B. W. 1987. The Dredging Handbook: A Primer for Dredging in the Coastal Zone of Massachusetts. Massachusetts Coastal Zone Management Program. Barr, B. W. 1990. "Management of the Stellwagen Bank National Marine Sanctuary: Opportunities and Obstacles", presented at Stellwagen Bank Conference, University of Massachusetts, Boston Campus, April. 26-27, 1990. Battelle Ocean Sciences. 1987. Draft Environmental Impact Report for the Identification of Dredged Material Disposal sites m Cape Cod Bay, Massachusetts. Prepared under contract to Massachusetts Department of Environmental Management, Division of Waterways. Beach, D. and M. T. Weinrich. 1989. "Watching the Whales". Oceanus, Vol. 32, No. 1. Berman, B. 1972. Encyclopedia of American Shipwrecks. Boston: Mariners Press. Bettencourt, Sofia U., and James L. Anderson. 1990. "Pen-Reared Salmonid Industry in the Northeastern United States." NRAC Publication No. 100. Northeastern Regional Aquaculture Center, Southeastern Massachusetts University, South Dartmouth, MA, and Cooperative Extension Service, University of Rhode Island, Kingston, RI. Bigelow, H. B. and W. C. Schroeder. 1953. Fishes of the Gulf of Maine. Fishery Bulletm of the Fish and Wildlife Service, Vol. 53. U.S. Department of the Interior, Fish and Wildlife Service. Bigford, T. E., NMFS/NER. April 1991. "Comments on Stellwagen Bank National Marine Sanctuary Draft Environmental Impact Statement". Bohlen, J.T. 1988. Demystifying the Right Whale, Defenders Magazine. Stellwagen Bank FEIS/MP Appendices Page E2 Brown, C.W., and H. E. Winn. 1989. "Relationship Between the Distribution Pattern of Right Whales, Eubala'ena Glacialis. and Satellite-Derived Sea Surface Thermal Structure in the Great South Channel", Continental Shelf Research, Vol, 9, No. 3. Bumpus, D. F. 1974. Review of Physical Oceanography of Massachusetts Bay. NMFS contract 03-3-043-40. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Northeast Fisheries Center, Woods Hole, Massachusetts. Campbell, D. E. 1987. System Ecology of the Gulf of Maine. Contract NA-83-FA-C-00047 between U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service and State of Maine, Department of Marine Resources. Cape Cod Times. 1989. Steamship Authority Approves Boston-to-Islands Summer Ferry - New Ferry Endangers Whales, Groups Say. Center for Coastal Studies. 1991. Comments in Response to DEIS/MP on Proposed Stellwagen Bank National Marine Sanctuary, NOAA. Center for Marine Conservation and Office of Protected Species, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce. 1988. Proceedings of the Workshop to Review and Evaluate Whale Watching Programs and Management Needs. Monterey, California. Chase, Bradford C. 1991. Progress Report of the Massachusetts Bluefm Tuna Fishery Investigation: 1989 Season Summary. Massachusetts Division of Marine Fisheries. Docimient No. STAP 91-101. Chase, Bradford C. 1991. Preliminary Report of the Massachusetts Bluefin Tuna Fishery Investigation: 1990 Season Summary. Massa-chusetts Division of Marine Fisheries. Document No.STAP 91-03. Clapham, P. J. 1989. Occurrence and Distribution of Marine Mammals in the Stellwagen Bank Region: A Summary. Center for Coastal Studies. Provincetown, Massachusetts. Clapham, PJ., C. A. Mayo. 1987. "Reproduction and Recruitment of Individually Identified Humpback Whales, Mepaptera novaeangliae. Observed in Massachusetts Bay, 1979- 1985", CanJ.Zool. Vol. 65. Clark, S. H. & V.C. Anthony. 1981. An Assessment of the Gulf of Maine Northern Shrimp Resource. Cohen, E.B. 1975. An Overview of the Plankton Communities of the Gulf of Maine. ICNAF Res. Doc. 75/106. Collins, J.W. 1890. Suggestions for the Employment of Improved Types of Vessels in Market Fisheries. Washington, D.C.: Government Printing Office. Collins, J.W. 1889. The Bean-Trawl Fishery of Great Britian. Washington, D.C.: Government Printing Office. Cram, W. B. 1980. Picture History of New England Passenger Vessels. Hampden Highlands, Maine: Burntcoat Corp. Crtiickshank, M., J. P. Flanagan, B. Holt, J. W. Padan. 1987. Marine Mining on the Outer Continental Shelf. U.S. Department of the Interior, Minerals Management Service, OCS Report 87-0035. Stellwagen Bank FEIS/MP Appendices Page E3 Curtis, William R. and H. Michael Mardis. 1984. Data from Studies of Previous Radioactive Waste Disposal in Massachusetts Bay. U.S. Environmental Protection Agency, Office of Radiation Programs, Washington, DC. EPA 520/1-84-031. Danton, C. and R. Prescott. 1988. Kemp's Ridley in Cape Cod Bay, Massachusetts- 1987 Field Research. Jn: Schroeder, BA.(compiler), "Proceedings of the Eighth Aimual Workshop on Sea Turtle Conservation and Biology." NOAA Tech. Memo. ^fMFS-SEFC-214. Darnell, R.M. 1976. Impacts of Construction Activities in Wetlands of the United States. EPA 600/3-76-045. Davis, J. D. and D. Merriman, eds. 1984. "Observations on the Ecology and Biology of Western Cape Cod Bay, Massachusetts", in Lecture Notes on Coastal and Estuarine Studies. Springer-Verlag, New York. DeGroot, SJ. 1979. An Assessment of the Potential Environmental Impact of Large-Scale Sand Dredging for the Building of Artificial Islands in the North Sea. Ocean Management 5:211-232. Dorsey, E. M. 1990. "Pollution from Dumping in Stellwagen Basin", presented at Stellwagen Bank Conference, University of Massachusetts, Boston Campus, April 26-27, 1990. Dumont, W. H. and G. T. Sunderstrom. 1961. Commercial Fishing Gear of the United States. U.S. Department of the Interior, Fish and Wildlife Service, Bureau of Commercial Fisheries, Washington, D.C. Fish and Wildlife Circulju" 109. Erickson, V. O. 1978. "Maliseet-Passamaquoddy", pp. 123-136, in Bruce G. Trigger, Editor, Handbook of North American Indians, Northeast, Volume 15. Washington, D.C: Smithsonian Institution. Essig, R. J., John F. Witzig and Mark C. HoUiday. 1991. Marine Recreational Fishery Statistics Survey, Atlantic and Gulf Coasts, 1987-1989. Current Fisheries Statistics Number 8904. U.S. Department of Commerce, National Marine Fisheries Service, Fisheries Statistics Division, Silver Spring, MD. Fish, J. S. 1989. Unfmished Voyages, A Chronology of Shipwrecks m the Northeastern United States. Orleans, Massachusetts: Lower Cape Publishing. Fish, C. J. and M. W. Johnson. 1937. The Biology of the 2^oplankton Population in the Bay of Fundy and the Gulf of Maine With Special Reference to Production and Distribution. J. Biol. Board Can. 3:189-322 Fisher, J., and R. M. Lockley. 1954. Sea-birds. Fitzgerald, D.M., J.B. Smith and S.L. Goodbred. 1990. Exploration and Inventory of Sand and Gravel Resources Offshore Boston Harbor. Prepared imder Contract to the Massachusetts Office of Coastal Zone Management, Boston University Marine Research Group, DepcU'tment of Geology, Technical Report No. 2. Foster, S.C., and Charles A. Mayo. 1982. Nomination of Potentid National Marine Sanctuary Candidate, Unpubl. Funk, R. E. 1978. "Post-Pleistocene Adaptations", jn Bruce G. Trigger, Editor, Handbook of North American Indians, Northeast, Volume 15. Washington, D.C: Smithsonian Institution. Stellwagen Bank FEIS/MP Appendices Page E4 Gardner, G. B. 1990. Physical Oceanographic Profile of Stellwagen Bank, in Proceedings of the Stellwagen Bank Conference, University of Massachusetts, April 26-27, 1990. GilUs, R., Esq., Gillis & CampbeU, April 1991. Godshall, F. A., R. G. Williams, J. M. Bishop, F. Everdale, and S. W. Fehler. 1980. A Climatologic and Oceanographic Analysis of the Georges Bank Region of the Outer Continental Shelf. U.S. Department of the Interior, Bureau of Land Management. Interagency Agreement AA551-IA8-14 with Marine Environmental Assessment Division, Center for Environmental Assessment Services, National Oceanic and Atmospheric Administration, U.S. Department of Commerce. Greenbaum, D.S. and A. O'Donnell, 1987. 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Pew PI Stellwagen Bank FEIS/MP Appendices APPENDIX F- NEW ENGLAND HSHERY MANAGEMEr^ ^SH^i^li; ^''°^'^ '"'' "'"'^ ^^^^ CONSULTATION UNDER SECTION 305(b)(5) OF TITLE IE New England Fishery Management Council 5 Broaoway • Saugus. MassacMusens 01906 (617) 231-0422 FTS 835-8457 Chairman Eiaojcve ^.rectcr jamts L Warrtn Douglas G Marsr.ajl June S, 1990 Mr. Joseph A. L'ravitch, Chief Manne and Esrjaruie Management Division National Ocean Service, NO.A.A Washington, D.C. 20235 Dear Vlr. L'ravitch: The New England Fishery Management Council appreciates the opportunity to prepare draft fish.mg regulations within ±e proposed Stellwagen Bank National Marine Sanctuary as defined under Section 305 (b) (5) of the Sanctuaries Act. Pursuant to that paragraph, the Councl has made the determination that fishing regulations are not necessary to fulfill the goals and objectives of the proposed designation. Because of the complex narure of fisheries management and conservation in the Northwest Atlantic, the Council has concluded that existing reg^ulatory mechanisms developed by the Council under the Magnuson Fishery Conservation and Management Act, provide the most effective measures for conserving and managing fishery resources within the proposed sanctuary. In the Northwest Atlantic, including the area encompassing the proposed sanctuary, the New England Council in coordination with the Secretary of Commerce, currently oversees the implementation of several fishery management plans. These plans include the Northeast Multispedes Plan, the Atlantic Sea Scallop Fishery Management Plan, the American Lobster Plan and the Atlantic Salmon Plan. An Atlantic Herring Plan is being developed and the New England Council has requested lead Council status over the Stimpson dam fishery that currently takes place on Stellwagen Bank. The Coundl requests that these plans, any future amendments to them, and any future Plans that may be developed by this Council apply to the waters within the proposed Sanctuary. We have forwarded copies of all current plans and the regulations that implement all management measures to Ms. Sherrard Foster of your office. The New England Council looks forward to providing further input as the designation process continues. Please feel free to contact the Coundl staff if we can be of further assistance , , ^ . j , n »^ - Sincerely, "'..■■''■ James Warrer(Y^,X ■ •■■ V \.- Chairman ^ Stellwagen Bank FEIS/MP Appendices Page Gl Appendix G: Responses to Comments Received on the DEIS/MP TABLE OF CONTENTS PAGE I. INTRODUCTION G3 II. ISSUES RAISED IN RESPONSE TO DEIS/MP A. Sanctuary Designation G3 B. Sanctuary Boundary G4 1. Alternatives/Extensions G4 2. Identification by LORAN-C G5 C. Discharges G5 1. Bilge Pumping Activities G5 2. MWRA Municipal Outfall G5 D. Disposals: Massachusetts Bay Disposal Site G6 1. Include MBDS in Sanctuary G6 2. Phase Out, or Close the MBDS G6 3. Move MBDS Further Away from Sanctuary G7 4. MBDS Management is Adequate; No Need for Additional Regulation G7 E. Gydrocarbon Activities G7 F. Lightering Activities G8 G. Mariculture G8 H. Ocean Incineration G9 I. Artificial Platforms/Islands G9 J. Alteration of/Construction on the Seabed G9 K. Vessel Operation GIO 1. Speed Limits on Charterboats/Recreational Vessels GIO 2. Seasonal/Year-Round Speed Limits on Commercial Ships GIO Stellwagen Bank FEIS/MP Appendices Page G2 L. Taking of Seabirds Gil M. Sand and Gravel Extraction G12 N. Fishing Activities G13 O. Sanctuary Advisory Committee G14 1. Representation of all Fisheries on SAC G14 2. Influence on Sanctuary management G14 ni. INDIVIDUAL NOAA RESPONSES A. Federal/State Agencies G15 B. Organizations G48 C. Business Interests G93 Table 1: ABBREVIATIONS G113 Table 2: INDIVIDUAL COMMENTERS G114 A. Governments, Agencies G114 B. Institutions, Business Interests G114 C. Organizations G114 D. Elected Officials G115 E. Individuals G1L5 Table 3: PUBLIC HEARINGS G123 Table 4: PETITIONS G126 Stellwagen Bank FEIS/MP Appendices Page G3 I. INTRODUCTION Appendix G to the Final Environmental Impact Statement/Management Plan document (FZIS/MP) for the Stellwagen Bank National Marine Sanctuary provides a summary of comments received on the Draft Environmental Impact Statement/ Management Plan document (DEIS/MP), and NOAA's responses to those comments. The 60-day public comment period on the DEIS/MP extended from February 8 to April 9, 1991. During that period, over 860 wTitten comments were received by NOAA. Additionally, at five public hearings held by NOAA (March 11- 18, 1991), 65 persons testified on the proposed Sanctuary. Finally, petitions including approximately 22,850 names were submitted to NOAA in support of Sanctuary designation. These comments provided significant contributions to NOAA's development of policies regarding the proposed Sanctuary. Appendix G identifies issues raised by commenters, and presents NOAA's position on various activities involving the proposed Stellwagen Bank National Marine Sanctuary. Issues which were raised by a large number of commenters, or which involved policy/management determinations are separately identified in the Table of Contents. Responses to other, individual comments have either been incorporated into FEIS text where appropriate, or are responded to individually in Appendbc G, under heading "III. Individual NOAA Responses." II. ISSUES RAISED IN RESPONSE TO DEIS/MP A. SANCTUARY DESIGNATION No Designation Action Should Be Taken By NOAA. A few commenters opposed any national marine sanctuary designation of Stellwagen Bank by NOAA. Generally, these commenters believe Sanctuary designation would create an additional layer of Federal authority and regulation over existing authorities affecting a variety of activities, involving both living and non-living resources of the Stellwagen Bank system. The commenters do not believe NOAA has provided an adequate justification for the need for additional managemeni and/or regulation of the Stellwagen Bank area. One commenter, the East Coast Tuna Association, recommended that Federal funds available for a Stellwagen Bank National Marine Sanctuary should be used instead to supplement planning and enforcement capabilities of existing authorities. (presumably such as those of the National Marine Fisheries Service and the New England Fishery Management Council). The same commenter stated that Sanctuary designation would provide some organizations with a "menacing regulator*' vehicle." NOAA Response: Section 2202(a) of the NMSPAA, designated the Stellwagen Bank National Marine Sanctuary. Designation of this area as a national marine sanctuary docs not duplicate existing regulatory authorities; rather it enhances. those authorities. Designation of an ocean area a"^ a national marine sanctuary recognizes the national significance of special marine systems, and provides for comprehensive and coordinated conservation and management of that system, to ensure the long- term viabiUty of Sanctuary resources for compatible multiple use. A necessary component of such management is the regulatory authority to address comprehensive resource protection from an ecosystem perspective. In its consideration of the Stellwagen Bank designation proposal, NOAA identified threats to the Bank environment for which there currently is either insufficient protection or no protection. For example, designation of this area as a national marine sanctuary and implementing regulations will protect the habitats and ecosystem upon which species rely, without interfering with other regulatory regimes. A primary intent of a national marine sanctuary designation is to fill such existing regulatory gaps, and to enhance the existing regulatory authorities of other agencies. NOAA does not agree, therefore, that de.signaiion of the Stellwagen Bank National Marine Sanctuary is unwarranted. Stellwagen Bank FEIS/MP Appendices Page G4 B. SANCTUARY BOUNDARY 1. Alternatives/Extensions A large number of commenters supported designation of boundary alternative 3 (encompassing approximately 702 square nautical miles), over boundary alternative 2, identified as the preferred alternative in the DEIS/MP. Primary among the reasons stated for this position were the desire to: a) provide the largest area possible for the protection of whales; and b) encompass and control the activities of the Massachusetts Bay Disposal Site (MBDS). Many commenters also supported boundary alternative 3 because it would include Tillies Bank (northeast of Stellwagen Bank), and southern portions of Jeffreys Ledge (north of Stellwagen Bank). These areas are also utilized by fishermen and cetaceans. NOAA Response: Section 2202 of NMSAA established the boundary for the Stellwagen Bank Naional Marine Sanctuary. Prior to that enactment, NOAA gave careful consideration to the potential advantages and disadvantages of adopting boundary alternative 3 for Sanctuary designation. The several facets of this consideration have been guided by the overall purpose of national marine sanctuary designation: to provide a comprehensive and integrated long-term management program for the Stellwagen Bank area, in order to ensure the continued vitality of the site's conservation, recreational, ecological, historical, research, educational, and esthetic values. The Sanctuary management plan is designed to protect the habitats and ecosystems which collectively make this area nationally significant. Sanctuary boundaries, therefore, should not be determined on the basis of single or limited benefits. Boundary alternative 3 includes additional important habitat areas for cetaceans, fish and invertebrates. These habitat areas are also important to commercial and recreational fishermen and whalewatchers. An additional feature of the boundary alternative 3 configuration is the increased potential for close coordination between NOAA and the Commonwealth of Massachusetts' Ocean Sanctuaries Program toward the common objective of comprehensive coastal ocean management and planning. During its consideration of boundary alternatives. NOAA also determined that the disposal of dredged materials within a national marine sanctuary h essentially incompatible with the purposes of Sanctuary designation and MPRSA pohcy. (See additional discussion following NOAA response regarding disposal activities at the MBDS.) The MBDS will be regulated by EPA and the Army Corps of Engineers (COE). Under EPA regulations, the presence of a designated national marine sanctuary in close proximity to an existing disposal site requires a higher level of research and monitoring to prevenl harm to Sanctuary resources. NOAA will cooperate with EPA and COE to prevent harm to Sanctuary resources and qualities through existing permit processes. In addition. Section 2202 of NMSPAA requires EPA and COE to consult with the Secretary of Commerce regarding proposed disposal activities prior to the issuance of disposal permits. Thus, NOAA has authority under Title III to protect Sanctuary resources and qualities. Therefore, it is not necessary to include the MBDS within Sanctuary boundaries in order to protect Sanctuary resources and qualities form possible negative effects of disposal activities. The preferred boundary alternative, depicted in the FEIS/MP as boundary alternative 5 and described at 15 CFR Part 940.2 is consistent with the Sanctuary boundary established by Section 2202(b) of NMSPAA. The boundary includes the natural resources found in boundary alternative 3, but excludes the MBDS, as proposed for permanent designation by EPA. The adoption of boundary alternative 5 will both encompass identified habitat areas important to the living and non-living resources of the Stellwagen Bank area and exclude incompatible disposal activities at the MBDS site. 2. Identification by LORAN-C A few commenters, including the New England Fishery Management Council, Gloucester Fishermen's Program, Gloucester Fishermen's. Stellwagen Bank FEIS/MP Appendices Page G5 Wives Association, and two fishing vessel captains, supported boundary alternative 4, encompassing 330 square nautical miles, and marked by LORAN-C lines. Commenters stated that LORAN-C is the prevailing means utilized by most vessel captains to locate and navigate; and that latitude/longitude coordinates are not useful to vessel operators. NOAA Response: Boundary alternative 4 would establish a Sanctuary area sufficient to provide protection and management of the Bank feature itself. However, boundary alternative 4, like alternative 1, would not fully encompass important habitat areas for invertebrate, fish and cetacean species; thus, system protection and management would not be fully possible with the adoption of either boundary alternative 1 or 4. NOAA agrees with commenters that identification of sanctuary boundaries should be provided in a way that is useful to both on- and off-site sanctuary users, as well as to sanctuary management. To facilitate identification of the Sanctuary boundary, NOAA has therefore provided both LORAN-C lines and latitude/longitude coordinates for the Sanctuary. C. DISCHARGES 1. Bilge Pumping Activities Several commenters, including the New England Fishery Management Council, Massachusetts Executive Office of Environmental Affairs, and the U.S. Coast Guard, commented that the Sanctuary regulation proposed in the DEIS/MP prohibiting discharge from vessel bilge pumps would preclude smaller vessels (recreational or charterboat) from routine pumping activities necessary to maintain vessel buoyancy. Additionally, some commenters stated that discharge from commercial ship bilge pumps is already prohibited by MARPOL's "50-mile rule", which prohibits any such discharge within 50 nautical miles of shore. NOAA Response: The regulatory language regarding discharge from vessel bilge pumps has been clarified to indicate NOAA's intended consistency with existing Coast Guard requirements. With regard to regulation of water discharges associated with vessel operation, the Sanctuary will permit discharge of cooling water, deck wash down and "gray water" (as defined by Section 312 of the Federal Water Pollution Control Act, as amended). Discharge of oily wastes from vessel bilges will be prohibited in the Sanctuary, consistent with existing Coast Guard requirements. The prohibitions do not apply to emergency situations, where life, property or the environment are threatened [see § 940.5(c)]. 2. MWRA Municipal Outfall A large number of commenters were generically opposed to the construction, placement and operation of the Massachusetts Water Resources Authority (MWRA) municipal outfall, and slated their concern about possible adverse effects ol tlie outfall on the Sanctuary's water quality and livin;;, resources. Several commenters stated that if the MWRA outfall is constructed, the Sanctuary should have oversight responsibility for its operations. A similar comment was that joint monitoring of the outfall's effects on Sanctuary resources should be established. NOAA Response: The new wastewater treatment facility is currently being constructed on Deer Island, which when completed will include an ocean outfall pipe discharging secondarily-treated wastewater at a point approximately 12 nautical miles from the Sanctuary. Sanctuary regulations protect resources and qualities from such activities by prohibiting discharges either directly into the Sanctuary, or discharges outside the Sanctuary which subsequently enter the Sanctuary and cause harm to its resources or qualities. Moreover, in coordination with the Massachusetts Bays Program (MBP), the Sanctuary will provide a larger contextual framework for far-field monitoring to determine possible effects from the MWRA outfall. In this manner, NOAA intends to be involved in continuing investigations necessary to ensuring the protection of Sanctuary resources and qualities. In the event that outfall effluent enters the Sanctuary and harms its resources, the MWRA outfall would be in violation of Sanctuary regulations, and subject to Title III actions. Stellwagen Bank FEIS/MP Appendices Page G6 NOAA agrees with commenters that some form of joint monitoring should be considered to determine any possible effects resulting from the MWRA outfall. The MWRA has stated its commitment to ongoing study and monitoring of the outfall's impacts on Massachusetts Bay, and to its active participation in the Massachusetts Bays Program. Additionally, the EPA and NMFS will study potential effects of the MWRA outfall activities. The National Ocean Service (NOS) plans to be involved in these efforts by coordinating with EPA and NMFS to ensure protection of Sanctuary resources and qualities. D. DISPOSALS: MASSACHUSETTS BAY DISPOSAL SITE L MBDS Should Be Included Within The Sanctuary. A large number of commenters stated their belief that the Massachusetts Bay Disposal Site (MBDS) should be included in the Sanctuary so that NOAA would have greater control over disposal activities and the future of the disposal site itself. Included in this group are the National Marine Fisheries Service, Nantucket Land Council, Environment Department of City of Boston, Barnstable County Assembly of Delegates, Center for Coastal Studies, International Wildlife Coalition, New England Aquarium, Cetacean Research Unit, Atlantic Cetacean Research Center, Conservation Law Foundation, Center for Marine Conservation, Stellwagen Bank Coalition and Urban Harbors Institute/University of Massachusetts at Boston. An additional comment was that the MBDS should be included within the Sanctuary so that NOAA, through the Sanctuary, could shut down the disposal site if environmental harm resulting from disposal activities is demonstrated. NOAA Response: Ocean disposal activities within a Sanctuary are generally not compatible with the purposes of Sanctuary designation and the policies of the MFRSA. Sanctuary boundaries should primarily be based upon the existence of nationally significant resources. Protection of Sanctuary resources does not require the inclusion of ocean disposal sites. EPA/COE regulations are designed to avoid the designation and use of areas which are rich in resources. EPA/COE regulations are also designed to prevent harm to Sanctuary resources. Sanctuary regulations prohibit disposal activities outside the Sanctuary which result in the entry of disposed materials into the Sanctuary and injury to Sanctuary resources or qualities. NOAA and EPA agree that dredged material disposal permits should not be authorized if there is a potential for those materials to cause harm to Sanctuary resources or quahties. The COE may issue permits for disposal of dredged materials under §103 of MPRSA only with EPA concurrence. In addition, the MPRSA mandates consultation with the Secretary of Commerce prior to COE issuance of MBDS permits. There is therefore no need to include the MBDS site within the Sanctuary boundary. In any event, the Sanctuary boundary was established by Section 2202(b) of NMSPAA.' Future proposed uses of the MBDS will be reviewed by NOAA to ensure that disposal activities are consistent with the purposes of the Sanctuary. If NOAA finds that harm to Sanctuary resources oi qualities has occurred as a result of disposal activities, then it will take additional management measures, but only as is appropriate and necessary for meeting its mandate of resource protection and comprehensive management under Title III. 2. Use Of The MBDS Should Be Phased Out, or Closed. A few commenters, including the Massachusetts Association of Conservation Commissions, stated that use of the MBDS should be phased out, or thai the site should be closed. NOAA Response: Sanctuary designation will preclude ocean disposal in the Sanctuary. Certification of ocean disposal outside the Sanctuary is not necessary, because studies indicate disposed materials do not enter the Sanctuary and injure Sanctuary resources or qualities. NOAA will cooperate with EPA and COE to ensure no injury to Sanctuary resources or qualities will result from such dredging activites. 3. The MBDS Should Be Moved Further Away From The Sanctuary. Stellwagen Bank FEIS/MP Appendices Page G7 A few commenters suggested that the MBDS should be moved to a location further away from the Sanctuary, to avoid possible conflicts. NOAA Response: NOAA agrees that there should be appropriate distance between ocean dumping sites and national marine sanctuaries to avoid possible conflicts and to ensure resource protection. The MBDS, like other ocean disposal sites, is designated by EPA under Title I of the MPRSA. Subsequent permitting of dredged material disposal activities at such sites is the responsibility of the COE, in conformance with EPA guidelines. As part of its current designation process under NEPA, EPA has considered alternative locations for a permanent dredged materials disposal site in its Final Environmental Impact Statement published in July 1992. As indicated in response to comments D.l and D.4, studies demonstrate that dredged materials disposed at the MBDS do not enter the Sanctuary and cause injury to Sanctuary resources. Further, NOAA plans to work with EPA and COE to ensure that ocean disposal does not harm Sanctuary resources or qualities. 4. Current Management of MBDS Is Adequate To Protect Sanctuary Resources; NOAA Has Not Demonstrated The Need For Additional Regulation. Two commenters, the Environmental Protection Agency (Region I) and the U.S. Army Corps of Engineers (New England Division), stated that current management of the MBDS is adequate to protect Sanctuary resources and qualities, and that NOAA has not demonstrated the need for additional regulation under Title III. Sanctuary or harm Sanctuary resources, therefore, NOAA certification of COE disposal permits does not appear necessary at this time. NOAA will cooperate with EPA and COE to ensure that these disposal activities do not harm the Sanctuar). NOAA will also scrutinize the current COE proposal to dispose contaminated sediments at MBDS, as part of a capping demonstration project for Boston Harbor. NOAA and EPA agree thai permits for disposal of dredged materials at the MBDS should not be issued if there is a potential for those materials to cause harm to Sanctuary resources or qualities. Additionally, COE must consult with the Secretary of Commerce if permitted activities at the MBDS are likely to harm Sanctuary resources. E. HYDROCARBON ACTIVITIES Offshore Hydrocarbon Activities Should Be Prohibited In The Sanctuary. Many commenters stated that offshore oil and gas, or hydrocarbon, activities should be prohibited in the Sanctuary. The sentiment was alsi.i voiced that hydrocarbon activities are inappropriate inside any national marine sanctuary. Some commenters believed that reliance on the current Presidential moratorium (extending to the year 2000) for protection of resources at Stellwagen Bank is inadequate, because such moratorium could be altered or negated immediately, leaving the area available for exploration, development, and production activities. Commenters voiced support for a permanent prohibition on such activities, rather than listing the activity as "subject to regulation" in the proposed Sanctuary's regulations. NOAA Response: Title I and its regulations establish a comprehensive framework for the management and regulation of dredged material disposal activities, and are designed to avoid harm to Sanctuary resources. However, NOAA's stewardship and comprehensive management responsibilities under Title III provide an appropriate supplementary role for protecting Sanctuary resources and qualities, as well as addressing problems between conflicting uses of the Sanctuary. Current studies indicate the dredged materials disposed at MBDS do not enter the NOAA Response: NOAA agrees that oil and gas development is usually an incompatible use of a national marine sanctuary. NOAA has considered the effects of and the need for imposing a prohibition on hydrocarbon activities within the Sanctuary. Among the factors considered by NOAA were the historically low industry interest in the Stellwagen Bank area, based upon low estimates of recoverable oil and gas resources; the current Presidential moratorium on such activities, effective until the year 2000; and the ability of NOAA to protect the Sanctuary's living and non-living Stellwagen Bank FEIS/MP Appendices Page G8 resources by listing the activity as "subject to regulation" at the time of Sanctuary designation. Moreover, the general regulatory prohibitions against alteration of, or construction on, the seabed and discharges into the Sanctuary would prohibit most of the activities involved in exploration, development, and production of hydrocarbon resources. Based upon these considerations, there appears to be little or no reason to specifically prohibit oil and gas activities in the Sanctuary at this time. Should proposals be forwarded in the future for hydrocarbon activities involving the Stellwagen Bank area, NOAA will be able to analyze the need to specifically prohibit or otherwise restrict such activities at that time, by initiating a rulemaking process, which is open to public review and comment. Listing this activity in the designation document as "subject to regulation" provides NOAA the abihty to take such actions should the necessity arise in the future. In order to prevent the necessity of repeating the entire Title III designation process to institute a new Sanctuary regulation, NOAA must identify this type of activity in the designation document as "subject to regulation" at the time of Sanctuary designation, which it has done. F. LIGHTERING Lightering Should Not Be Permitted Inside The Sanctuary. Many commenters expressed concern that lightering activities (transfer of petroleum products from one vessel to another) to allow smaller vessels to transport such products into Boston Harbor could cause harm to Sanctuary resources and qualities. NOAA Response: Prior to development of the FEIS/MP document, NOAA was unaware that lightering ever occurred in proximity to the Sanctuary. Investigation into the occurrence of this activity has indicated that lightering may occasionally occur outside the entrance to Boston Harbor area. Because there is apparently at least some incidence of lightering occurring infrequently in the general area of the Sanctuary, and because of the threat of harm to Sanctuary resources from accidental spillage, NOAA agrees with commenters that lightering should not be permitted within the Sanctuary boundary. NOAA has thus prohibited lightering in the Sanctuary. G. MARICULTURE ACTIVITIES Mariculture Activities Should Be Prohibited In the Sanctuary. Many commenters supported a prohibition on any mariculture-related activities within the Sanctuary. Several reasons were stated for this position, including: potential conflict with vessel traffic: possible adverse impacts on marine mammals and seabirds resulting from entanglement in nets; ami possible negative effects on water quality generall>. Commenters supporting a prohibition on mariculture activities in the Sanctuary included: Urban Harbors Institute/University of Massachusetts at Boston; Town of Dennis; Center for Marine Conservation; Stellwagen Bank Coalition; Cape Ann Vessel Association; Atlantic Cetacean Research Center; Massachusetts Marine Educators; Save the Harbor/Save the Bay: Gloucester Fishermen's Program; Gloucester Fishermen's Wives Association; Cetacean Research Unit; New England Aquarium; American Cetacean Society; and two fishing vessel captains. Additionally, many individual citizens commented in support of prohibiting this activity in the Sanctuary. Some commenters also raised objections to mariculture activities because they constitute a "private use" of public waters within the Exclusive Economic Zone, thereby preventing other uses, sucii as fishing. NOAA Response: NOAA has listed this activity as subject to Sanctuary regulation. Both the existing permit requirements for construction and operation of an offshore mariculture facility, and the current status of the American Norwegian Fish Farm, Inc. proposal for establishment of two mariculture facilities have resulted in NOAA's determination that the granting of permits for conducting this activity in a national marine sanctuary are extremely unlikely. This determination is based upon COIL guidance related to permits for fish pen mariculture operations, which prohibits fish farms in Congressionally, Presidentially, or Federally Stellwagen Bank FEIS/MP Appendices Page G9 established natural resource areas, such as national seashores, wilderness areas, wildlife refuges, parks or other areas designated for similar purposes (e.g.. national marine sanctuaries). (See additional discussion at Part Two, Section 11.11, Mariculture). By listing this potential activity as subject to Sanctuary regulation, NOAA reserves the ability to determine the need for regulation, including prohibition, should the establishment of a mariculture operation within the Sanctuary boundary be proposed in the future. General prohibitions against discharge and deposits of matter in the Sanctuary may be sufficient to prevent this activity from harming Sanctuary resources. H. OCEAN INCINERATION Ocean Incineration Activities Should Be Prohibited In tlie Sanctuary. Several commenters, including the New England Fishery Management Council, National Marine Fisheries Service, Massachusetts Audubon Society, Gloucester Fishermen's Program, two fishing vessel captains, Gloucester Fishermen's Wives Association, Cetacean Research Unit, the New England Aquarium, and many private individuals, supported a Sanctuary prohibition on ocean incineration activities. NOAA Response: NOAA agrees and has prohibited this activity within the Sanctuary or outside the Sanctuary if there is a discharge or deposit which enters the Sanctuary and harms Sanctuary resources. Under current existing authorities, ocean incineration activities may only occur pursuant to "interim" or "research" permits, issued by EPA under Title I of the MPRSA. To date, no ocean incineration sites have been designated by EPA. In designating such sites, EPA is required by Title I regulations to avoid sensitive areas, such as national marine sanctuaries. It is therefore unlikely that an ocean incineration site would be designated within a designated national marine sanctuary. NOAA agrees that incineration activities should not occur in national marine sanctuaries. Although the environmental effects of such activities may not be well understood currently, at a minimum, the aesthetic impacts are clearly negative to Sanctuar)' qualities. In its consideration of alternatives, NOAA determined that the Sanctuary regulation prohibiting discharge or deposit of matter within the Sanctuary will preclude any future designation of incineration sites within the Sanctuary, and leave no question regarding the possible occurrence of future incineration activities. Thus, although ocean incineration is generally prohibited by existing law, identifying ocean incineration as discharge and deposit activities prohibited by Sanctuary regulations will provide supplemental enforcement authority and penalties for violators. I. FIXED ARTIFICIAL PLATFORMS Large Fixed or Floating Platforms Should Not Bf Permitted Within The Sanctuary. Several commenters voiced opposition to the construction, placement, and operation of the fixed artificial platforms or "islands" of the type proposed previously for Stellwagen Bank (known as "Gugel's Arabian Nights"), within the Sanctuary boundary. Among the concerns raised are conflict with vessel traffic lanes, interference with fishing areas, increased hazards to marine mammals from resulting additional vessel traffic and noise, potential entanglement for marine mammals and seabirds, degradation of water quality, and privatization of Federal waters. NOAA Response: The current status of the proposed artificial platform remains very uncertain, pending the satisfactory response by the applicant to numerous additional questions raised by the COE, including the identification of financial support for this project. However, regardless of the apphcant's successful completion of necessary applications, NOAA shares the concerns of commenters regarding this project. In general, the presence of an artificial fixed platform over or around Stellwagen Bank is not an activity which reasonably could be described as "compatible with the primary objective of resource protection". Construction and placement of man-made structures within the Sanctuary may alter natural ecosystem functions, as well as the esthetics of the Sanctuary. Notwithstanding conditions which might be placed Stellwagen Bank FEIS/MP Appendices Page GIO on the design, construction and operation of a fixed artificial platform, the potential impacts on both Using and non-living resources within the Sanctuary are significant. NOAA's prohibition on alteration of, construction on, placement on or abandonment of any structure, material or other matter on the seabed effectively precludes the possibility of any fixed artificial platform being established within the Sanctuary. J. ALTERATION OF. CONSTRUCTION ON THE SEABED A few commenters raised concerns regarding the proposed prohibition on any alteration of, or construction on, the seabed. In particular, commenters were concerned about the effects of this proposed prohibition on "traditional fishing activities" in the Sanctuary, e.g.. those current fisheries involving dredge gear. Two commenters objected to this proposed prohibition, as well as the proposed prohibition on installation or placement of cables and pipelines in the Sanctuary, because they would be precluded from the possibility of placing electrical transmission cables through the Sanctuary. Commenters stated this activity is environmentally safe, and that an outright prohibition is inappropriate, because there is no demonstration of possible adverse impacts. NOAA Response: The regulation prohibiting alteration of, or construction on, the seabed specifically exempts vessel anchoring, traditional fishing operations, and installation of navigation aids. These alterations do not appear to harm Sanctuary resources; and fishing operations are regulated by NMFS. NOAA does not agree with commenters that the installation of electrical transmission cables poses no potential for environmental damage. Significant concerns with the installation of cables or pipelines include possible leaks, disruption of spawning areas, conflicts with fishing gear or the movement of bottom-dwelling species, and disturbance or damage to archeological sites. A NOAA objective is the maintenance of a natural habitat, and therefore the avoidance of facilitating man-made permanent structures in the Sanctuary. K. VESSEL OPERATION L Speed Limits Should Be Imposed on Charterboats and Recreational Vessels. A number of commenters stated that speed limits should be established for charterboats and recreational vessels operating in the Sanctuary. Limiting vessel speed inside the Sanctuary to between 15 and 18 knots was suggested by the Cape Ann Vessel Association, Atlantic Cetacean Researcli Center, Gloucester Fishermen's Program, Gloucester Fishermen's Wives Association, two vessel captains, and the Cetacean Research Unil. Additionally, a large number of individual commenters, as well as other organizations, supported generally Sanctuary regulation of recreational and other small vessel speeds. All comments reflected the concern for potential vessel collisions with marine mammals, particularly cetaceans. One commenter supported a prohibition on all private boating activities in the Sanctuary, with an exception being provided for commercial fishing vessels. NOAA Response: Existing NMFS whalewatcli guidelines applicable to all vessels operating in proximity to cetaceans address vessel speeds generally when vessels are intentionally engaged in whalewatching activity. While whalewatch vessel operators appear to adhere generally to these guidelines, other recreational vessels often are unaware of the guidelines. Pending national whalewatch regulations will address vessel speeds in proximity to cetaceans, and will be enforceable, as opposed to the NMFS guidelines. While NOAA/NOS agrees with commenters that vessel collisions with cetaceans may be a problem, it does not believe thi.^ imposition of regulatory speed limits on charterboats or recreational vessels is presently necessary. Among the Sanctuary's research and educational objectives will be the quantifiable identification, via coordination with NMFS an(i other involved organizations, of vessel/cetacean interactions and the further education of the recreational boating public. If these investigations Stellwagen Bank FEIS/MP Appendices Page Gil demonstrate the need for vessel speed restrictions to reduce marine mammals/vessel interactions, then NOAA will propose a Sanctuary regulation restricting vessel speeds. The activity of vessel operation is therefore listed as "subject to Sanctuary regulation." 2. Year-Round or Seasonal Speed Limits Should Be Imposed On Commercial Ships. A few commenters stated that NOAA should limit the speed of commercial ships in the Sanctuary, either on a year-round basis, or during the seasons when cetaceans are present. Concern was also raised, however, by the U.S. Coast Guard, that any future Sanctuary regulation limiting commercial vessel speed or changing vessel traffic patterns affecting "safe navigation of vessels on the high seas" must be first approved by both the U.S. Coast Guard and, with respect to foreign vessels, the International Maritime Organization (IMO). NOAA Response: NOAA is listing the operation of all vessels in the Sanctuary as an activity "subject to regulation." This action will allow NOAA to propose specific regulation of commercial ship operation in the future, if the need to do so is demonstrated. The reduction of commercial vessel collision-related cetacean mortalities is identified as a priority objective in the Draft Right Whale Recovery Plan (NMFS, 1990). Two recommendations are made to address this objective: a) collection and analysis of additional data on the areas and seasons of potential vessel/cetacean conflict; and b) investigation into strategies for reduction of ship/cetacean collisions. Among specific actions being considered to obtain this objective is the restriction of vessel speed in "high risk" areas during "high risk" seasons. In addition, the possibility of on-board lookouts; shifts in traffic lanes; on-board acoustical warning devices; detection technologies (such as side-scan sonar); alternative vessel designs; and satellite-tracking of transmitter-tagged cetaceans are also discussed in the Right Whale Recovery Plan. Although this plan focuses only on the Northern Right Whale, the objective of reducing vessel collisions with any marine mammal is clearly an objective to be pursued by both NMFS and the Sanctuary. The NOS intends to work with NMFS in the implementation of measures identified in the Northern Right Whale Recovery Plan, the Humpback Whale Recovery Plan, and other measures identified to reduce vessel collision-related injury and mortality of cetaceans. NOAA will also work with the Coast Guard and the IMO to investigate appropriate measures to reduce incidence of vessel collisions. L. TAKING OF SEABIRDS The Proposed Prohibition On Taking Of Seabirds Conflicts With Permits Issued Under Tli^f Migratory Bird Treaty Act. A few commenters, including DOI, stated that the Sanctuary prohibition on taking of seabirds potentially conflicts with certain provisions of the Migratory Bird Treaty Act, which allow for licensed hunting of migratory birds, including sea ducks. Additionally, some commercial fishermen voiced concern at public hearings on the proposed Sanctuary that seabirds caught incidentally in fishing nets would constitute a violation of the proposed Sanctuary prohibition on taking. NOAA Response: NOAA is unaware of the Sanctuary area being used for the hunting of se;i ducks. However, the wording of the prohibition on taking of seabirds has been modified to exclude any such taking occurring pursuant to the provisions of the Migratory Bird Treaty Act. Additionally, the Migratory Bird Treaty Act has been included in NOAA's discussion of existing Federal authorities (see Appendbc B). Consultation with DOI's Regional Fish and Wildlife Service office has provided indication that the Migratory Bird Treaty Act makes no provision for incidental take of migratory birds, and thus any such unpermitted incidental take in fishing nets is a violation of the MBTA. However, the number of such incidentally caught birds is extremely low, and no endangered species appear to be involved. Seabirds are Sanctuary resources which should h^: protected from harm or destruction. NOAA would Stellwagen Bank FEIS/MP Appendices Page G12 not, however, pursue a natural resource damage civil suit for incidental take which results in only negligible harm to the Sanctuary or the species. NOAA will coordinate with the USFAVS (DOI) in any enforcement activities involving endangered or threatened seabird species, or related to MBTA violations. M. SAND AND GRAVEL EXTRACTION ACTIVITIES Sand And Gravel Extraction Activities Should Be Listed As Subject To Sanctuary Regulation; A Blanket Prohibition Is Not Necessary Or Appropriate. The DOI commented that NOAA's proposed prohibition on sand and gravel extraction activities within the Sanctuary is inappropriate and not necessary at this time. DOI states that NOAA's prohibition on development of industrial materials (e.g.. sand and gravel) is not based on "an analysis of how or whether such activities would harm to specific resources that influenced the selection of this area [Stellwagen Bank] as a proposed NMS." DOI suggests that potential sand and gravel extraction activities be examined on a "case-by-case" basis by NOAA to determine any necessary controls or prohibitions in instances where mitigation of harmful effects would "prove difficult." NOAA Response: Section 2202(d) of NMSPAA prohibits the exploration for and mining of sand and gravel and other minerals in the Sanctuary. Moreover, NOAA does not agree that the extraction of sand and gravel resources from within the Sanctuary should be permitted on a case-by-case basis. Notwithstanding the fact that no specific proposals to conduct sand and gravel extraction activities are presently being considered by DOI (through the Minerals Management Service), and that "extensive geological, geomorphic, physical, oceanographic, and environmental factors" would have to be analyzed before actual mining activities could commence, sufficient documentation has been presented regarding the negative environmental impacts of such operations on Stellwagen Bank and its surrounding ecosystems as to warrant a prohibition on this activity. Moreover, sand mining would remove the Sanctuary resource which is at the core of the designation of this Sanctuary; protecting the Bank feature and its ecosystem. Negative impacts of sand and gravel extraction activities include alteration of the Stellwagen Bank feature, which may affect continuation of seasonal upwelling cycles caused by the Bank's presence, which in turn supports the biological productivity of the Stellwagen Bank ecosystem. Potential associated impacts include alterations and disruptions in population and migratory patterns (involving fish, invertebrate, and cetacean species) resulting from introduction of pollutants or undesirable nutrients; degradation of water quality; vessel noise; disruption or destruction of spawning areas (especially those of Ammodvtes americanu?. or sand lance, primary prey for humpback and fin whales); and loss of food sources and habitat foi planktonic, invertebrate, and fish species (includin;.', the copepod Calanus finmarchicus. primary prey for northern right whales). Ultimately, the commercial, recreational, and scientific importance of the Bank system would be adversely and permanently affected by sand and gravel mining activities. Statements that "mitigating measures" could be undertaken to minimize the environmental effects of sand and gravel extraction do not address the significance of the Bank feature, and thus the intern, of this national marine sanctuary designation. National marine sanctuaries are designated to recognize and provide long-term protection loi nationally significant, discrete marine systems, which in this case is the Stellwagen Bank feature and it.s ecosystem. While one of Title Ill's goals is to facilitate multiple uses of sanctuary areas, the nature and effects of such uses must be in conformance with the primary statutory objective of resource protection. Sand and gravel are basic elements of the Stellwagen Bank feature and are thus of primary importance to the continued biological productivity made possible by the Bank's presence. Alteration or removal of this core Sanctuary resource undermines and conflicts wiih the purposes of designation. "Mitigating measures' to lessen the adverse impacts of sand and gravel extraction would still result in an ecosystem permanently altered by human activities manipulating natural habitats and ecosystem processes. Stellwagen Bank FEIS/MP Appendices Page G13 Finally, NOAA's analysis of this issue presents information that the projected need for these materials does not indicate that extraction of sand and gravel from Stellwagen Bank is even necessary. None of the large public works projects currently underway in the metropolitan Boston area (MWRA wastewater treatment facility in Boston Harbor, MDPW Central Artery project and MDPW Third Harbor Tunnel project) has identified a need for sand and gravel resources from Stellwagen Bank. Moreover, completion of these projects will not, according to a recent report to the New England Governors Conference, create a shortage of sand and gravel resources. To the extent sand and gravel are subsequently needed for construction projects, there are alternate sources on land and sea, including the use of dredged material. Use of dredged material for construction aggregate would further the missions of DOI and COE without threatening a disturbance of the natural balance at Stellwagen Bank. On balance, therefore, NOAA has determined that the proposed prohibition on sand and gravel extraction activities is a warranted and supportable means of ensuring the long-term protection mandated by Title III. N. nSHING ACTIVITIES Management of Commercial and Recreational Fisheries Should Be The Sole Responsibility Of The National Marine Fisheries Service And The New England Fishery Management Council. The New England Fishery Management Council (NEFMC), as well as several commercial fishermen's organizations, commented that regulation of fisheries in the Sanctuary should remain entirely the responsibility of NMFS and the NEFMC. In particular, the NEFMC stated that NOAA should permanently exempt fishing activities from any Sanctuary regulation. Additionally, the NEFMC stated its belief that the Magnuson Fishery Conservation and Management Act (MFCMA) provides exclusive authority for fisheries management within the Exclusive Economic Zone to NMFS and Regional Fishery Management Councils. Additionally, the NEFMC commented that the regulatory language in the proposed Sanctuary Designation Document (Article VI, § 2 of App. A of the DEIS/MP), contradicts the intent of the MFCMA, by providing that "if any valid regulation issued by any Federal, State, or local authority . . . conflicts with a Sanctuary regulation, the regulation deemed by the Director [of OCRM] to be more protective of Sanctuary resources and qualities shall govern." NOAA Response: NOAA agrees that the MFCM/v provides comprehensive authority for management, including regulation, over fisheries to Regional Fishery Management Councils and NMFS. Moreover, NOAA/NOS agrees with the Council's determination, made in response to NOAA's consultation early in the Sanctuary designation process, that adequate legal mechanisms exist tii provide appropriate management of fisheries in general, and thus no supplementary fishing regulations currently appear to be necessary to address Sanctuary resource protection concerns. During the process of its consideration of Stellwagen Bank for Sanctuary designation, NOAA/NOS has identified fisheries as a resource of national significance, and is therefore obligated under Title III of the Marine Protection, Research and Sanctuaries Act (MPRSA) to ensure adequate mechanisms exist to properly manage and protect the long-term viability of this resource within the Sanctuary. In meeting this obligation, NOAA/NOS has further defined and discussed the current status of fishery stocks and the present fisheries management structure in the Sanctuary area. (See FEIS, at Part Two, Section II.C.l., Commercial Fishing). NOAA/NOS has determined that while the regulatory structure for management of fisheries is adequate, current implementation of that structure is not fully attaining the objectives mandated under MFCMA. The NEFMC and NMFS are currently responding to a Court order to revise the FTvlP's for groundfish species, so as to design a rebuilding program for those stocks. NOAA/NOS believes this is an appropriate mechanism to address the current problems related to groundfish stocks. Therefore, NOAA/NOS is neither regulating Stellwagen Bank FEIS/MP Appendices Page G14 fishing, nor listing fishing as an activity subject to Sanctuary regulation. NOAA/NOS intends to work closely with the NfEFMC and NMFS to establish, via the Sanctuary, a broad forum representing multiple sources of possible assistance to the NEFMC and l^fMFS in the attainment of mutual objectives; NOAA/NOS will also work with these entities on the impacts of fishing upon other Sanctuary resources and other Sanctuary users. NOAA does not agree that the regulatory language in the proposed Sanctuary Designation Document (Article VI, § 2) contradicts the intent of the MFCMA or that the MFCMA precludes the regulation of fishing within sanctuaries under Title III of the MPRSA. The intent of the Designation Document language is that the Sanctuary shall be governed by valid regulations which are the most protective of Sanctuary resources and qualities. This is wholly consistent with Title III and does not conflict with the MFCMA. 0. SANCTUARY ADVISORY COMMITTEE 1. The Sanctuary Advisory Committee Should Be Heavily Representative Of The Commercial Fishing Industry; All Individual Fisheries Should Be Represented On The Committee. Comments from some individual fishermen and the Stellwagen Bank Commercial Fisheries Cooperative stated that the proposed Sanctuary Advisory Committee should be "heavily-seated" with representatives of historic user groups. NOAA Response: A Sanctuary Advisory Committee will be established in accordance with §315 of Title III, which provides authority to the Secretary of Commerce to appoint up to fifteen individuals as Committee members. Recommendations for Committee membership will be developed by the Office of Ocean and Coastal Resource Management and forwarded to the Secretary of Commerce. NOAA intends that appropriate user groups be fully represented on a Sanctuary Advisory Committee. NOAA will solicit recommendations from the public for membership on the Advisory Committee. See additional discussion on advisory committees at part Two, Section IV (Administration). 2. The Sanctuary Advisory Committee Should Have Direct Control Of Sanctuary Management. A few commenters stated that the Sanctuary Advisory Committee should be directly involved in management of the Sanctuary. NOAA Response: The primary function of a Sanctuary Advisory Committee is to provide the on- site Sanctuary Manager with advice on a \ariety of distinct issues or programs, in order to ensure better management overall of the Sanctuary. To accomplish this objective, it is appropriate to bring together interested individuals with particular interests and expertise, to assist the Sanctuary Manager and the rest of NOAA in making necessary determinations for sound managemenl. NOAA anticipates that the Sanctuary Advisory Committee would form subcommittees, to focus on particular issues. While the work of the Advisory Committee is vitally important to the attainment and maintenance of Sanctuary objectives, it is only advisory in nature, as final Sanctuary policies are determined by NOAA. As trustee for the Sanctuary's resources and qualities, NOAA must retain full management authority over the Sanctuary and its operation. Stellwagen Bank FEIS/MP Appendices Page G15 III. INOrVlDUAL NOA.A RESPONSES A. FEDERAL/STATE AGENCIES Advisory Council On Historic Preservation The Old Post OfficB Building 1100 Pennsyivanja Ayenue. NVV. #809 Washinston. DC 20OO4 9 i9SI Mr. Joseph A. Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resources Management National Ocean Service/NCAA 1825 Connecticut Avenue, N.W. Suite 714 Washington, D.C. 20235 RE: Draft Environmental Impact Statement/Manageaent Plan Stellwagen Bank National Marine Sanctuary, Massachusetts Dear Mr. Uravitch: Thank you for the opportunity to review the referenced DEIS, have completed our review and have the following comments to offer: We 2- 3. 1. The DEIS did not evidence consultation with the Massachusetts State Historic Preservation Office. Accordingly, we reconaend that you begin Section 106 consultation as soon as possible. We also remind you that the subsequent management of this National Marine Sanctuary will convey Section 110 responsibilities as well . 2. The definition of "Historic Resource" included in the DEIS does not reference eligibility for the National Register of Historic Places. This is a key component of the definition of "Historic Property" in the Council's regulations, "Protection of Historic Properties" (36 CFR Part 800) . The inconsistency between the definitions could lead to confusion in Sections 106 and 110 consultations. We recommend that NOAA adopt the definition as provided in the Council's regulations. 3. The section on the National Historic Preservation Act suggests that only impacts to Register-listed historic properties would be subject to Section 106 compliance. We remind you that Section 106 requires that agencies take into account the effect of undertakings on properties that are eligible for the National Register; thus, ensuring consideration of effects to all historic properties, not only those that are listed on the Register. Sections 106 and 110 of the National Historic Preservation Act recognize that Federal oversight of property is beneficial in that it conveys a responsibility on Federal agencies to appropriately manage and use historic properties under their direction. Thus, we believe that the establishment of the Stellwagen Bank National Marine Sanctuary is an undertaking that has the potential to protect historic properties. If we can be of further assistance, please contact Valerie DeCarlo at (202) 786-0505. rely. ADVISORY COUNCIL ON HISTORIC PRESERVATION 1. The Sanctuary occurs entirely in Federal waters, and is not subject to the jurisdiction of the Massachusetts Historical Commission. However, a copy of the DEIS was reviewed by the Commission, which stated that if it had jurisdiction, it would find "no effect/no adverse effect", within the review process under § 106 of the National Historic Preservation Act. 2. The proposed definition of "his- torical resource" has been revised to encompass those resources which are defined as "historic properties" by the National Historic Preservation Act and implementing regulations at 36 CFR Part 800. 3. Comments noted. NOAA understands its responsibilities under the NHPA, parti- cularly the need to consider the effect of Sanctuary designation and subsequent activities on properties which are eligible for listing on the National Register of Historic Places. Klima Eastern Office Project Review Page G16 DEPARTMENT OF THE AIR FORCE MEADOUARTEUS UNITED STATES AIR FORCE WASHINGTON. D.C 20330 i- 2. DEPARTMEKT OF THE AIR FORCE 1. Correction made. 1 ::i M-- Mr. Joseph A. Uravitch Chief, Sanctuaries and Reserves Division Office of Ocean and Coastal Resources Management National Ocean Service/NCAA 1825 Connecticut Avenue, N.W. Suite 714 Washington, D.C. 20235 Dear Mr. Uravitch: Our office recently received your Draft Environmental Impact Statement/Management Plan for establishment of the "Stellwagen Bank National Marine Sanctuary". We appreciate the opportunity to review and respond to this initiative. After review of the draft EIS, we have the following comments for your use: a. Page 75, f°'"- Mr. Uravitch: •mis letter supplements our earlier coinnents on th.e pre-release Draft Environnental Impact Statement/Management Plan for the proposed Stellwagon Bank National Marine Sar.ctuary (see letter dated 9 Nove.-ber 1990) . Our positions on the Sanctuary are as follcr.-'s: Page G17 ^ NED si^ports the sanctuary designation and the preferred sanctuary bourdary alternative identified in the DEIS, but believes that existing regulations on the ocean disposal of dredged material are protective of the environment (See Corps of Engineers' Site Evaluation Docurent and E3>A's Environmental Impact Stater^nt for the Massachusetts Bay Disposal Site) and sufficient to protect sanctuary resources. "ITie DEIS proposes a sanctuary certification process (i.e. a permit) to insure that dredged naterial disposal is consistent with sanctuary regulations but does not define the guidelines or criteria that would be used by NOAA to- determine consistency. NOM has not clearly de-Tonstrated the need for additional regulations. Instead we propose the development of a me-iiorandim of u.Tderstanding (MOU) among COE, EPA and NOAA which will achieve the purpose of assuring coordinated and ccrprehensive management of Sanctuary resources without the extra layer of regulation. NED currently coordinates disposal activities at KEDS with EPA, NOAA/NMFS, and USFWS. We welccme increased participation by NQAA/Sanctuaries m the e-xisting revie"v process and recommend that the NCAA review nc7.v vested in NKFS te e.Npanded to include NOAA/Sanctuaries. This participation alcng with the >DC' will facilitate corpre^iensive and coordinated na.'-agament of the Sanctuary. As NOAA develops a monitoring strategy for the Sanctuary, NED will provide technical assistance on issues dealing with dredged material disposal. We believe the results of this monitoring prcgra-Ti should be used to assess adequacy of e-xisting management practices. Attached is some reconmended language for the portion of the FEZS dealirq with dredged material disposal. We lool< for.vard to working with your staff on the Final Environnental Iirpact State.Tient and to the development of the M3U. DEPARTMENT OF THE ARMY New England Division, Corps of Engineers 1. No response necessary. 2. See generic response D.4. NOAA intends to pursue the development of a MOU with COE and EPA to identify NoL's role in the review process for disposal permit applications, and to involve NOAA m continuing monitoring of the MBDS No response necessary- sincerely Q}i\i^ Ftiilip R.l Colonel, Cbrps of Engineers Division Engineer , UNITED STATES OEPAPtTMENT OF COMtVIERCE National Oceanic and Atmospheric Administration NATIONSL MARINE fISMERIES SEHVrtCE jNortheast Region Habitat and Protected Resources Division One Blackburn Drive Gloucester, HA 01930-2298 April 8, 1991 Joseph Uravitch NOAA, National Ocean Service OCRM, Sanctuaries and Reserves Division 1825 Connecticut Avenue, NW, Suite 714 Washington, DC 20235 Ba; Conments - Stellwagen Bank National Marine Sanctuary Draft Environmental Impact Statement Dear Mr. Oravitch: Thank you for the opportunity to provide comments on the proposed designation of Stellwagen Bank as a National Marine Sanctuary. We support the concept, and offer the following comments to strengthen the document. Before our specific comments, I want to applaud the document preparation process adopted by SARD for this site. Susan Durden's office did an excellent job of involving agencies and special interest groups, and ensuring that their perspectives were incorporated into the planning documents. Much of the credit belongs to Sherrard Foster, but I realize that GCOS, Office of Legislative Affairs, and others contributed. Based on over 12 years of observing the active candidate and designation process, I can attest that Ms. Foster's personal efforts were outstanding. She cultivated excellent working relationships as she worked with the fishery management council, embraced state participation, net with all parties, and spearheaded the process. Regardless of anyone's position on designation, SARD'S solid staff work has certainly enhanced the process. I hope future sanctuary and reserve proposals will be supported by similar commitments to the planning phase and to personal liaisons with field contacts. Page G18 1 GEMZRAL COMMENTS Sanctuary Designation "The NHFS Northeast Region supports designation of Stellwagen Bank as a National Marine Sanctuary. Its creation would establish a franewoDc for managenient, regulation, enforcement, education, and research that will hopefully =°'°Pl«»«"t' "^^Jj",!^^" ^S^f • if^' s that of the NMFS. Sanctuary endeavors should help NMFS fill gaps I in its living marine resource programs, and foster creative [icosystei approaches to both proactive and reactive management. PEIS The DEIS does a fair job of characterizing the Bank's complex enCironmen? and current regulatory structure. Complete descrictions are given of proposed regulations. The Sanctuary ^"fd prohibit soL activities (discharge -'^ .^fP^^^ °f„^. ,, ,, materials in the Sanctuary, sand and gravel mining, alterat-on ot ^e seabed placement of pipelines and cables, interference with h'^^toricaVcSltural resources and taking marine mammals, ^^ ^:E5e rto°re^"tIon'-(dis=h:rge^:n^ deposit of materials outside the sanctuary, oil and gas development, and operation of commercial vessels) . In concert with existing programs. Sanctuary regulations will help to^otect Bank resources. However, we suggest several additions to strengthen the overall program: 1 Oil and gas development (from exploration to shipment ashore) ought to be prohibited outright This activity deserves to be addressed with the same language as sand and gravel mining. 2 Aouaculture and whalewatch/charterboats should be identified as subject to regulation. If NOAA chooses tighten language against specific private "f^=- "^/"^^"^^ aeneric approach (i.e., limit privatization) rather than ar to generic approach ( endless list of possible activities. r 3 At-sea incineration and hazardous cargo lightering, both ^. of which represent shipboard activities which should not be conducted over the Bank. r^lso the discussion on the Massachusetts Bay Disposal Site should address recent confirmation that many containers of unknown wastes have been dumped near the proposed MBDS. Sanctuary plans should weigh the benefits of surveying the region to quantify the wastes and the possibility of covering such containers. Commercial Fishing 'The DEIS should not present a holistic, ecosystem approach, which must include further information on fish and associated fisheries. At times, the document sounds more like a sanctuary for commercial fishermen and whalewatchers, rather than for the living marine resources that support these activities. This causes awkwardness, as the DEIS tries to ignore the current dire state of fisheries resources and still present the ecosystem-wide nanagement concept. To support a sanctuary that relies on the New England Fishery Management Council to manage fish, the DEIS must summarize existing plans and regulations, and convince readers that the FMPs now in place are sufficient to allow that holistic approach. If gaps remain, they should be addressed through other Sanctuary initiatives. If those needs can not be net, a realistic discussion will be needed to complete the presentation. The Sanctuary could be an objective forum within which fresh and objective approaches to fishery management are voiced, even if formal management authority is retained by the New England Fishery Management Council. The Council is openly seeking suggestions on management directions, and might appreciate support from a broad interest group like the Sanctuary or its Advisory Committee. A good source of information which discusses the many problems faced by NMFS and the Council is the "Needs Assessment of the National Marine Fisheries Service by the National Fish and Kildlife Foundation" published in 1990. NFWF offers recommendations to improve fishery management and to generate necessary research information and enforcement support. DEPARTMENT OF COMMERCE National Marine Fisheries Service Northeast Region 1. No response necessary. 2. See generic response E. 3. See generic responses G and K. 4. See generic response H. 5. The FEIS discussion of disposal activities identifies the previous use of areas near the MBDS for dis- posal of industrial waste materials. NOAA intends that Sanctuary manage- ment will include cooperation with EPA and COE in surveying these areas, and in developing appropriate monitor- ing and management measures to ensure protection of the Stellwagen Bank environment. 6. The FEIS section on commercial fishing has been expanded to discuss the status of fisheries. See PART FOUR, Section I.B.l.n. Page G19 Boundary Alternatives ^. Boundary alternative #3, the largest, should be the preferred alternative rather than the smaller 12. The immediate area of Stellwagen Bank is not an independently functioning system, and as such a large buffer area as possible is needed for adequate protection. The reason given by the DEIS for choosing #2 over {3 is the higher costs of administering a vast area. However, administration efforts could focus on a core area as has been done for the Looe Key National Marine Sanctuary, Biscayne National Park, and numerous other special management areas. At some later date. Sanctuary programs could expand. In that sense, a larger area would act liXe a buffer as needed. The Massachusetts Bay Disposal Site (MBDS) should be encompassed by the Sanctuary boundary. If the MBDS is outside of the Sanctuary, regulation can occur only after MBDS-related environmental damage has occurred. This approach is exclusively reactive. Instead, we should rely on scientific evidence that certain disposal activities might affect marine resources and act accordingly to limit such impacts. There are currently several large disposal projects proposed for the MBDS that could affect resources within the proposed Sanctuary. Capping contaminated material as a management option is being proposed by the New England Division of the Corps of Engineers. These issues can and should be addressed by the Sanctuary documents. Acruaculture Aquaculture is one of eight objectives in the NMFS Strategic Plan, and has recently developed into a viable industry for New England waters. Culture fish could help to meet domestic demand for seafood and reduce the current seafood trade deficit. Aquaculture relates to the Sanctuary in two ways, rirst, successful husbandry is dependent on clean waters and efficient operations. With those goals, aquaculturists have a special interest in maintaining a viable marine environment. Second, recent proposals to locate fish farms in offshore waters suggest that the private sector may propose to use waters on or near the Sanctuary to raise fish. The implications to other users can not be ignored. However, until monitoring and research near active farms can determine the extent of environmental impacts, we probably do not have the information to ban aquaculture from any offshore area. To summarize, the treatment of aquaculture in the DEIS is inadequate. Discussions are limited to the current American Norwegian Fish Farm proposals for inshore (Rockport) and offshore (27 miles east of Cape Ann) facilities. While the Sanctuary cannot terminate a permit for these facilities, if granted by the time the Sanctuary is designated, renewal may be denied if they are shown to adversely affect the resources of the Bank. Future use of the Sanctuary for aquaculture needs to be addressed. Several people at the recent public meeting opposed aquaculture. Their remarks were that aquaculture facilities take up space and will increase marine mammal entanglements. These comments seem motivated by reasons of economic competition and conjecture, especially since certain fish gear and fishing activities currently impose identical effects on resources. Marine mammal entanglements are certainly a potential problem. However, for existing inshore facilities, interactions with marine mammals are limited to predation by seals rather than entanglement. Plans to monitor the offshore facility may answer questions for that site. There are many valid reasons to be concerned about aquaculture 's Impact on the Bank ecosystem. Because of this, plus public and agency interest, acpjaculture's known and potential environmental impacts should be objectively evaluated. Aquaculture, like other private enterprises that restrict public use of the ocean or bottom, should be identified by the Sanctuary as an activity subject to future regulation. The Sanctuary might consider a policy of experimental leasing. Such decision-making would help foster attitudes of proactive management. 7. See generic response B.l. 8. See generic response D.l. 9. See expanded discussion of mariculture at PART TWO, Section II.C.ll. Based on current guidelines for- siting net pen finfish facilities it is ^Kf^^.^"^^ ^" operation will e;er be established within the Sanctuary NOA^ proposes to list this activity as subject to regulation. to. Alteration of. or Construction on. the Seabed This prohibition does not apply to "normal fishing operations." Rather than "normal", this should state "traditional", and should apply consistently to trawling, dredging, and any other gear that could contact the ocean bottom. 10. NOAA has changed "normal fishing operations" to "traditional fishing operations", with regard to the proposed prohibition on alteration of the seabed. Page G20 i;j 13. 14. IB. "within that realn, the Sanctuary document must consider the -l^ps^" cLb fishery, which is not traditional ^"^ may cause damage to the seabed. Currently, there is one boat ^^^ing for clams on the Bank. However, there may be plans for two "o" boats (Don Mason, NMFS Port Agent, personal communication, 1991). This fishery should be deemed experimental and its impacts evaluated. At the very least, the DEIS should acJcnowledge the potential impact of the fishery to the seabed. Offshor" Hydrocarbon Dfvplopment The outright prohibition of industrial materials development Isand and gravel mining), as opposed to the relaxed attitude toward oil and gas development is not sufficiently justified. The effects of oil and gas exploration, development, and shipment cSuld be as severe to bith the physical structure of the ban)c and its living marine resources as sand and gravel mining. Despite the Presidential moratorium and lack of evidence of hydrocarbons in the area, this activity should be prohibited. Such a prohibition would be consistent with those for placement of submerged pipelines and cables and alteration of or construction on, the seabed, including "drilling and ocean mineral extraction", in the Sanctuary. These activities are closely related to oil and gas development. Would their prohibition by nature prevent oil and gas development. "rajcina of Marine ReP^i^es■ Marine Mammals, and Seabirds The preferred alternative would prohibit the taking of these animals. Although this is duplicative with the ESA and MMPA, such protection is allowed under these acts as long as it is more restrictive (Gene Martin, NOAA GCKE, personal communication). However, the claim of the DEIS that "[T]he regulation demonstrates the intent of the MPRSA to protect Sanctuary resources on a holistic, or system-wide basis" is not supported. (Webster's dictionary defines holistic as "emphasizing the organic or functional relation between parts and wholes." According to the DEIS "[T]he preferred regulatory alternative would provide such protection (holistic or system-wide) by effectively including all seabirds, marine reptiles, and marine mammals in the Sanctuary." Apparently the additional protection here is for seabirds, which are already protected by the Migratory Bird Treaty Act. No mention is made of endangered fish or invertebrates, so that in reality the Sanctuary regulation covers fewer species than the ESA. The regulation prohibits taking unless conducted pursuant to a "Sanctuary permit, or otherwise permitted under the MMPA or ESA." Such a permit could not be issued alone, without appropriate MMPA or ESA permits (Gene Martin, NOAA GCNE, personal communication) . The DEIS should also identify the purpose and benefits of such a permit. Whalewatching may be an activity that should be licensed (see specific comments on whalewatching, below) . Whalewatch. Commercial Charter Boats, and Private Craft Whalewatch and other charter boats often approach whales during their normal operations. The Sanctuary would benefit from efforts to educate and enforce vessel approach guidelines or regulations. The idea of a Sanctuary permit to conduct whalewatching activities on Stellwagen bank should be explored. Whether such a permit is warranted should be contingent on an assessment of vessel traffic and the success of Sanctuary education and enforcement programs. Thus, commercial charter boat and whalewatch activities should be identified as an activity which may be regulated in the future. The same attitude may be appropriate for small, private craft but we lack the information to offer any comments beyond anecdotal accounts that such vessels may affect marine mammal behavior. Enforcement USCG and NMFS enforcement offices are currently pressed to fulfill commitments under the Magnuson Act, marine debris/MAilPOL laws, and other marine law. The Sanctuary document should clarify that program intent is to augment that enforcement capability, not dilute it. You should also specify that the Sanctuary Manager will enlist help from established enforcement offices to hire qualified officers and to assign them to priority Issues. Sanctuary Officers) We agree that the Sanctuary needs an office, and suggest that satellite offices/booths would help acquaint the public with the Sanctuary and its objectives. The m2in office and any other offices should be: located in accessible towns/cities; coordinated with related Stellwagen Bank activities like fishing ports or whalewatch hubs; and integrated with other protection programs like parks or education programs. 11. As noted at PART TWO, Section II.C.l., the New England Fishery Management Council has requested the lead role in developing a FMP for the Stimpson clam. During the course of developing such FMP, NOAA would ex- pect to investigate the potential effects of such fishery upon the seabed within the Sanctuary. 12. See generic response E. 13. The necessity of appropriate MMPA or EPA permits for taking of marine mammals or endangered species will not be changed by Sanctuary designation. The proposed Sanctuary prohibition on taking of marine mammals, marine reptiles, or seabirds, although duplicative to existing protections under the ESA, MMPA, and MBTA, will enable NOAA to provide an additional level of regulatory protection to these species. NOAA has determined that this is appropriate, given the importance of marine mammal, marine reptile, and seabird species to the overall vitality of the Stellwagen Bank system. Identi- fication of the purpose and benefits of EPA or MMPA permits could be addressed through the Sanctuary education/inter- pretation programs. 14. See generic response K. The discus- sion at PART TWO, Section II. C. 2. raises the possibility that one reason for the occasional harassment of cetaceans may be an excessive number of whalewatch vessels in close proximity to the cetaceans. In addition to focused Sanctuary research into this activity, NOAA intends to coordinate with NMFS in the implementation of whalewatch regulations, which could address the number of whalewatch vessels if it is documented as a causal factor in harassment of cetaceans. 15. NOAA is aware that NMFS and the USCG are fully committed to existing responsibilities under the Magnuson Act, marine debris/MARPOL statutes, and other marine laws. As identified in PART TWO, Section IV. B., the intention of the Sanctuary Program is to promote coordination and enhancement of appropriate enforcement capabilities of NFMS and USCG. Page G21 /4. 17. IS". (9, Advisory Committee The Advisory Connnittee is an excellent idea. Conunittee nembership should be sufficiently broad to include representatives of all user groups, but not so inclusive to have a member from each fishery, each recreational vessel category, each research interest, etc. Considering the different gear types, target species, vessel sizes, etc., the prospects of a huge Committee seem real and scary. Of equal importance is how the Committee will relate to the sanctuary Manager and the Council. Must decisions or recommendations by the Committee be accepted by the Sanctuary. Will fishing industry representatives on the Committee have special standing in any decisions or recommendations? Emergencies Section 940.6 of the regulations addresses emergency actions. The Council will suggest, and we agree, that they should be afforded an opportunity to approve any emergency regulations that might affect their special role in fishery management. Catastrophic Spills The Sanctuary documents should recommend a contingency plan(s) to deal with the possibility of an oil spill, explosion, etc. that could affect the area. Perhaps the plan should include removal of hazardous materials from the old disposal site. Fishery Management Outsidp the Council's Jurisdiction We continue to wonder how a Sanctuary will address fishery management issues (habitat, harvests, conflicts, etc.) related to stocks not covered by an approved fishery management plan. Existing conditions for tuna and pelagics plus possible fisheries for the Stimpson clam, herring, and sand lance could place the Sanctuary in the fishery management arena. Stimpson clams may be the first test. 16. See expanded discussion on Sanctuary Advisory Committee at PART TWO, Section IV. A. 4. 17. In the event of a necessity for emergency Sanctuary regulations (pursuant to § 940.6) which directly affect fishing activities, consultation with both NMFS and the NEFMC will precede the implementation of such regulations, contingent upon time constraints. In such instances, however, the decision to impose emergency regulations rests with NOAA. 18. A National Marine Sanctuary Program contingency and response plan is cur- rently in development by SRD. Individual contingency plans will also be developed for each national marine sanctuary, including Stellwagen Bank. 19. See generic response N. SPECIFIC COMMENTS page xi, paragraph B, Endangered Species Act fESAl : The shortnose sturgeon fAcipenser brevirostruml is a federally endangered anadromous fish that occurs in the Merrimack River. Although we are unaware of any shortnose sturgeon being caught in any of the Sanctuary boundary alternatives, the proximity of this population merits inclusion on the list of species that could occur in the area. page 1, paragraph 5: The last sentence in this paragraph should read, "In addition to these operations, possible sand/gravel mining and dredged material disposal may affect Stellwagen Bank resources." Otherwise it implies that previous activities mentioned (commercial fishing, whale watching, recreational fishing, research, and commercial shipping) do not have the potential to affect the Bank's resources. page 8, paragraph 4: Somewhere in this paragraph mention should be made of the geographical location of Cordell Bank National Marine Sanctuary. page 23, paragraph 2: The sentence "Like Stellwagen Bank lying along its eastern and northeastern borders, the Stellwagen Basin is elliptical in configuration, with a long axis trending in a northeast direction" should read trending in a "northwest" direction. page 36, paragraph 3: Insert the word "extant" into the following sentence. "The largest and heaviest of all 'extant' reptiles, leatherbacks may grow to 11 feet in length and weigh up to 1,900 pounds." Some mention should be made regarding leatherback entanglement and lobster pots. NOAA Technical Memorandum NMFS- SEFC-214 "Proceedings of the Eighth Annual Workshop on Sea Turtle Conservation and Biology" contains supporting information. pages 37 through 40, Endangered Cetaceans: The population estimates given should be updated with information contained in the draft "Endangered Whales: Status Dpdate, A Report on the 5- Year Status of Stocks Review under the 1978 Amendments to the O.S. Endangered Species Act". For northwest Atlantic humpbacks, fin whales, and sei whales, the figures given in the DEIS are all less than those in the Status Review. A figure is also availjible in the Status Review for the current population of north Atlantic blue whales, which is not stated in the DEIS. Also, the Weinrich (1990) citation for the current population of fin whales is not referenced. Page G22 1. -1 u,^v,r,r- PoTtjoise: The population estimate of page 42, P^"^"?^^^' fP^ffl^fff^ varioGs%tudies , all of 16,000 IS one of several °^"Yf%;" _. decree (see attached Which are considered ""relxable t= =o»e^gree (s^^^^.^^ ^^^^^^ discussion of harbor PO'T"^^^' : „ ^^^"^ of harbor porpoise of NMFS is planning °" =°"f =^^"^, ^J^^y^ccurate nu^er. The this sm^er that should give | "^^^^^^^^^^^ declining due in part possibility exists ^hat this species = Y fishery. NMFS is to entanglement in the Gulf "^^^^^^^xl^^tion Progran and gillnet ^^^^^^^^^^^^^ S: b!-The"ha^^o^ p^r^Sile/luin^t int^^ac^ifn°i^^n%::^: o ^ =r concern and sh^ld be a priority for sanctuary research and education/ interpretation. cage 43 paragraphs 1 and 2 , Harhor Seal: Please edit the page 4J, P^"^ .r^^., breeding range for northwestern -i-tH^harb r^i^tgx^nds fro. ice free -tic^waters^south ^^:^l^. aferr^oith^as Cape Cod Bay ^-currently are only seasonal residents in southern New England (f-om late September until late May)." /he second sentence implies that t..e first should read you are referring to historic range. page 44, g. ^^^^Xd., paragraph 1= For the sentence.^^Vari^ r^d'Is f^tlo^s-'-Var o^s s^:birds"re often specialized in their "^ding behavio^, resulting in little overlap of Preferred prey. I^-iter^ f-nd-n"?hf c-^^ori:In^ Sgior (Pow^rf a^%rown. 1983) . ■r., 1. t.-=^=r,(- nav F^'i'-ina: Discussions of present day Technical Memorandum NMFS-F/NEC-72 ""atus of the Fishery Resources Off the Northeastern United States for 1989 , and is available from the Northeast Fisheries Center of the NMFS. The 1991 update should be published soon. page 59: The American eel is erroneously listed as an invertebrate. page 65, paragraph 1, last sentence: My copy of the ESA gives a lop criminal fine of S50,000. The DEIS gives fines of up to $10,000. page 73, paragraph 4: A discussion of MARPOL and marine debris should be in a separate section from commercial shipping. This is because the conditions of MARPOL and the Marine Plastic Pollution Research and Control Act of 1987, the U.S. law which implements MARPOL, are applicable to ALL vessels, including those used in commercial fishing, whalewatching, and sportfishing. Placing this discussion under commercial shipping does not give the issue the attention it deserves as a broad-based problem. The impacts of marine debris to the environment, including ingestion by or entanglement of endangered species and other B^^ine life: fouling of props and gear, and ghost fishing by lost gear should be mentioned. page 74, paragraph 2 and page 154 Commercial ghipoinq: As with MARPOL and marine debris, vessel collisions with endangered species must be discussed in a separate section from commercial shipping. All boats have the potential to collide with these animals The DEIS admits on page 154 that "Further data are necessary to detennine the level of vessel collisions with cetaceans". However, by placing this concern in discussions of commercial shipping it is implied to be a problem unique to that industry. A section labelled "General Vessel Activity" would more accurately present problems common to all boating activity on Stellwagen Bank. page 96, 13. Recreational Activities/Tourism: This _ information overlaps with sections on whalewatching and sportfishing and should be incorporated into those discussions. A more appropriate subject for this title would be recreational sailing and Dotorboating activities that occur on the bank. Although unquantified, several participants in the Stellwagen Bank Sanctuary Coalition contend that recreational boaters represent a threat to cetaceans and overall boater safety. Those problems are posed by the number and speeds of boats. page 99, 2nd paragraph, .Tnint State/Federal Programs: The first sentence should read "As an Estuary of National Significance encompassing Massachusetts Bay, Cape Cod Bay, and Boston Harbor, EPA and Massachusetts are developing a single Comprehensive Conservation and Management Plan (CCMP) for this area." Page G23 „, c^nctuarv »H„-i.=r.,^ rnnmittee: The Sanctuary Advisory ^^'^^■11 ■ Cni ad^se^r^search Coordinator and the Sanctuary Conunittee "^J;l^°^^=^_^3j."h needs. Whether any NMFS personnel arH^L^rs'o ^is c^^^tttee^or not, habitat and protected s^^pf research and education needs whic^^^ ^rrin^de^^tf for'effec:iie'.Lage»ent of Stellwagen Bank. oaae 136-137, n..Hr,.ci Mater j^1 nisoosal: The DEIS is inconsistent the MBDS. Again, thanks for the °PP°>^tunity to comment on the DEIS and alsociated documents. Please call Linda f^awFTS 837 9251^ or me (FTS 837-9209) if you wish to discuss anything related to the Sanctuary. Sincer&ly, Thomas E. Bigfor Division Chief Page G24 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY J.F. KENNEDY FEDERAL BUILDING. 30STON. MASSACHUSETTS 02203-2211 1. 2. April 9, 1991 Ms. Sharrard Foster Stellwagen Bank Project Manager Office of Ocean and Coastal Resource Management National Ocean Service/NCAA 1825 Connecticut Avenue, N.W., Suite 714 Washington, D.C. 20235 Dear Ms. Foster: In accordance with our responsibilities under the National Environmental Policy Act (NEPA) and Section 309 of the Clean Air Act, we have reviewed the National Oceanic and Atmospheric Administration's (NCAA) Draft Environmental Impact Statement (DEIS) for the proposed designation of Stellwagen Bank as a National Marine Sanctuary. Stellwagen Bank is located 6 miles northwest of Provincetown and approximately 30 nautical miles east of Boston, Massachusetts. It is a glacially deposited, primarily sandy submerged feature measuring 18.5 miles in length, roughly 6.25 miles across at its widest point, and from 65 to more than 300 feet in depth. Stellwagen Bank is a biologically rich area, supporting a large variety of commercially important fisheries and providing important feeding and nursery grounds for an abundance of endangered cetacean species. NOAA's preferred boundary alternative for the sanctuary would cover a 453-square-nautical-mile area surrounding the Bank. NOAA states that the designation of Stellwagen Bank as a marine sanctuary would "....provide a long-term integrated program of resource protection, research, and interpretation/education to assure comprehensive management and protection of the Stellwagen Bank system" (p. i) . Several alternatives to the proposed action are considered in the DEIS, including various boundary alternatives, non-regulatory management alternatives, and No- Action (or status quo) . Because the DEIS serves as a draft Management Plan for the sanctuary, six regulations are also proposed in the DEIS that would prohibit or otherwise restrict numerous activities within and around the sanctuary. Regulated activities would include discharges, including dredged material, wastewater effluent, fish wastes, trash and other debris; aquaculture operations; industrial materials extraction (sand & gravel mining) ; oil and gas extraction; historical/cultural resources exploitation; placement of fixed or tethered platforms; submerged pipeline and cable installation; commercial shipping; commercial charterboating (whalewatching and sportfishing vessels) ; and taking of marine mammals, marine reptiles, and seabirds. EPA supports the designation of Stellwagen Bank as a marine sanctuary and believes that this designation would benefit the protection of marine resources therein. Marine sanctuaries help put into context both the larger physical, chemical, and biological relationships that exist within a marine area identified as having special significance and the human uses of the resources within that area. By identifying such relationships, marine sanctuaries provide opportunities to establish public constituencies for the marine resource that can play a valuable role in its overall protection. Moreover, the additional research and public education opportunities provided by marine sanctuary designations further increase the opportunities for protection. With regard to the potential boundaries for the sanctuary site, EPA supports the approval of NOAA's preferred boundary alternative. As the DEIS indicates, this alternative would encompass some of the most important feeding and nursery habitat for endangered cetaceans that migrate into this area. With regard to other alternatives and the proposed sanctuary regulations examined in the DEIS, we recommend that the Final EIS include further discussion on a number of issues, as follows. Alternatives Status Quo Alternative fNo Action) : Several issues are examined when considering an area for marine sanctuary designation, including whether that area is unique (and thus of special value) and whether existing regulations adequately protect those qualities that give the area its uniqueness. ENVIRONMENTAL PROTECTION AGENCY Region I 1. NOAA does not currently propose to regulate mariculture activities; offshore hydrocarbon development activities; commercial shipping; or commercial charterboating activities. NOAA proposes to list these activities as "subject to Sanctuary regulation", which enables NOAA to propose regulation of these activities in the future, should such action be warranted. 2. No response necessary. 3. No response necessary. Page G25 the sting ction DEIS, that fined ithin se of icant (P- While there is little debate on the value of Stellwagen Bank Status Quo Alternative discussion argues that the exi regulatory framework does not provide the level of prote. required for marine sanctuary resources. According to the the primary reason for the lack of adequate protection is " individual agency or program missions are often de narrowly, without consideration of the larger ecosystem w which they operate." (p. 123) It further states that, becau the fragmented regulatory framework, there remain " signil gaps in the protection of the overall Stellwagen Bank system. 123) We recommend that NOAA identify and perhaps provide examples in the EIS of the problems caused by the "gaps" in regulated activity within the proposed sanctuary, particularly in terms of harm caused to marine resources therein. Where there is scientific uncertainty about the degree of harm caused by an activity, we suggest that NOAA describe how that issue would be better dealt with under a marine sanctuary management regine versus existing scientific research efforts. , ^- rrT,H«.i- the Preferred Regulatory ppq^natory Alternatives; ^„„°"='" ..^ties that take place on Alternative a "^"^/J^i^Hr^ady fali^der state and Federal Stellwagen Bank some of "^^^^^^^^^^^^^f ^regulation by NOAA. With regulation, would come under 3dd^'^^°"^j-.„rr^:aterial disposal , we regard to proposed regulations for ^^^%^5f„^^"^„^„^t support NoJu^•s believe that the ^"^^^^^^ ''l^^^t.Jfn! Protection, -Research and l^nciul^^es^c^ J^ll^.. ^^^^^ ^^^-^^U^^l^rZ resources and request that farther information be proviaea, discussed below. AS the DEIS discusses, EPA is required under Title I of the HPRSA to designate sites suitable for °=-" //^^^"^^^^J^Y Final site ^:!^^-tird:er^o-^ti^ ip ^o £of^ in^^thtfTn^d^"luaT"ev?:5-o?V%o%"ed"^!^:| individual proposal for ocean disposal will "J /^^^'itlt ,rnFi p?oject-by-project basis by the U.S. Army Con^s of ^nginee" (COE) Shich has responsibility for issuing ocean disposal permits unde. Section 103 of the MPRSA. AS you know, EPA is currently investigating, through the JfEPA process, a rknge of alternatives for the designation of a dredged material disposal site in Massachusetts Bay 0^°"" " ^.he Massachusetts Bay Disposal Site, or the MBDS) . The =1^^ currently proposed by EPA for designation does not overlap with NOAA s proposed sanctuary boundary for Stellwagen Bank. Under NOAA's preferred RegulatVry Alternative, however, if "^=, ,"^°^ ""^,i°"^:^ inside the sanctuary, disposal ^=tivity would be prohibited anywhere within the sanctuary other than at the MB°S. Dredged maCrial disposal would be allowed at the MBDS, but NOAA would assume the authority to review permit applications deny certification or require additional conditions on any disposal activity at the site. we believe that NOAA has not provided in the DEIS a technical basis for its premise that the application of environmental protection standards under Title I of the MPRSA on any. ocean disP°"l activities will not adequately protect marine "sources even those resources of "special national significance.- (P/^ ^^'""f ' . *f presented, the principle justification for the additional Regulation of ocean disposal activities is the assumption of an inherent conflict between the two agencies' programs, both of which have environmental protection as their primary intent and b°th of which originated from the same environmental statute. We request that NOAA indicate what additional activities it would request or undertake if, as the EIS states, NOAA believes that EPA and the COE are already "....aggressively pursuing the maintenance of state of-the-art research on dredged material disposal. (p. u^J In addition to regulation of disposal activity within the Sanctuary boundary, NOAA proposes to regulate disposal activity outside the boundary if it determines that discharged material has " entered the Sanctuary and injured a Sanctuary resource or quality, or if it may reasonably be expected at the time of such discharge that the material will enter the Sanctuary and injure^ a Sanctuary resource..." (p. 137) EPA has determined in its EIS for the proposed KBDS designation that, using the proposed management practices, dredged material disposal at the KBDS will not adversely affect marine resources. Given this, we request that NOAA clarify how and under what circumstances it envisions NOAA's regulatory authority being applied to dredge material disposal activities. We further request that NOAA detail the technical standards by which an adverse change to Sanctuary resources would be judged and whether it believes these are more protective than current regulatory standards for disposal activities. 4. NOAA believes the FEIS provides an adequate description of the status of living and non-living resources and human activities, and the potential environmental results of human activi- ties absent Sanctuary designation and management. NOAA has identified several current or potential activities for which there are either inadequate or non-existing mech- anisms for resource protection. For example, see FEIS discussions on sand and gravel activities; lightering; offshore fixed artificial platforms; mariculture; at-sea incineration; and submerged pipelines and cables. The scope and intent of Title III extends beyond resource protection which may or may not be adequately provided under various existing authorities. Imple- mentation of Title III focuses on national recognition of significant marine systems deserving of special protective management. This encom- passing mission is not found in any other single authority. The success of such management clearly depends on coordination with existing authorities. 5. See generic response D.4. As pre- viously noted, NOAA intends to pursue the development of a MOU with COE and EPA to identify NOAA's role in the review process for disposal permit applications, and to involve NOAA in continuing monitoring of the MBDS. Identification of specific technical standards by which adverse change to Sanctuary resources or qualities would be judged should be addressed as part of the inter-agency consultation described above . Page G26 c 7. ., ■^i.-h NOAA the COE, and any other EPA would be pleased to work "^,"1^^°! 'di^osal at the MBDS to agency involved with /f«'^g«;^^Jf^^tiould clarify the respective develop a Menorandma °f . ^^^""^"^^^ocean disposal activities and roles of our agencies in 7"="^"^„ding of the issues of concern, form the basis for a mutual understanaing oi ,^.hivities we recomnend that NOAA With regard to aquaculture ==tivities ^ential affects provide additional discussion in the EIS opportunities that of such activities on »^""f„"=°Yd provide to regulate potential a marine sanctuary designation would pro ^^^^ states, an impacts. This issue is of =°"=^^ been proposed offshore Cape Ann expensive aquaculture \^'^\^'^iy^\^^^\^^°^ ^o at least one of the by American Norwegian Fish ^ann ' ^J^;;^ in the DEIS. Though EPA is sanctuary boundaries being considered in ^ ^^^^ facility, we reviewing the permit application ^°^^^l^-^\^l^^ quality impacts are authorized to review only ^he potenci ^^^^^^^^g^^, however, of these activities. As the " lated and we perceive that aquaculture operations are not f^^^^ /=? from these operations do o?her non-water-quality-related impacts from ^^^ ^^^.^^_ not receive the benefit °f.\""/,f impacts on indigenous fish Potential impacts include biological -^ Jl , ^^e „ith commercial populations as a result of es'=^P^"^"„;i^" "pacts. We thus see an fishing operations; and =°"°:^=°"^"p'^og^a'^ to provide for a more opportunity for the Marine Sanctuary Program F^ operations that comprehensive regulatory °''"=^5ht of aquae ^^^^^^_ would address the full range of environment — AA\ tional regulations for Tinally, we note that NOAA .P"P°=" "°the DEIS identifies as the commercial fishing .^-^^^X'^'.^^f the many human activities that most economically i^PO^^ant o£ tne i ^^ recommend that directly exploit S^ellwagen Bai^ s reso ^.^^^3 of fishery NOAA include in the Final EIS = 'i^^^"^^^",, ^ the DEIS identifies resources within Stellwagen BanK. "" . commercial fishing numerous fish species that support an ==J^ ^ ^^^^ additional industry along Stellwagen Bank, we ,-►,= -relative abundance of the fish stocks information detailing ^^^^^^^^^^^^^t regulations have demonstrated over recent years and whether current regu ^^^^^ ^^ ^ ^^^^^^ an effectiveness in addressing any «^^=\^°^^ „ould be helpful in l3al"a\=rnrS^:'^cv^"\\"le^?rof"^^^^^^ Based on our review and for the^e_asons^discussed ^above,^^we^have rated this project and EIS V"^' -^^j, our national rating insufficient information," m accordance with ^^^^^ ^^^ your system. An explanation of this rating information. sincerely. Lncerely, i , /I ^ ^ Elizabeth Higgins Cong^ram, Assistant Director 6. The discussion of mariculture activities has been expanded (see PART TWO, Section II.C.ll., and PART THREE, Section II. C. 5.). NOAA proposes to list this activity as "subject to Sanctuary regulation. " 7 NOAA has expanded the discussion of fishing activities to include the status of fisheries. See PART TWO, Section II C.l. See also generic response N. Office of Environmental Review United States Department of the Interior OFFICE OF THE SECRETARY WASHINGTON, DC. 20240 in Reply Refer To: ER 91/164 APR 29 National Ocean Service/NOAA 1825 Connecticut Avenue, H.W., Suite Washington, D.C. 20235 Dear Mr. Dravitch: The Department of the Inferior has reviewed the Draft ^^^ ^n^ir^^ental I^P-^^f^tio'narMlrTne sinctuiry (NMS) : «« proposed stellwagen Bank National Mar consideration; !^f:Il^rc^^^nts"Lrin"ie:dTn"the^nc^osure. The Draft EIS characterizes the ma^orMological^and^physical resources and human "^^^^^^^^^.'tnfo^ation as presented sanctuary area, generally, the inror^ natural resources and substantiates that "ellwagen Bank conta^ ^^^ ^^^^^ Stellwagen associated human uses that are of sign candidate for Bank is nationally recognized and is a sui designation as a marine sanctuary. Page G27 Certain features of the proposed regulatory regime for managing the sanctuary and its resources are inconsistent, and therefore, are of concern. In our view, these apparent inconsistencies would preclude achieving the intent of the Marine Protection, Research and Sanctuaries Act to protect Sanctuary resources on a holistic, or systera-wide basis. A consistent regulatory approach needs to be devised for the proposed sanctuary. Thank you for the opportunity to comment on this Draft ZIS for the Proposed Stellwagen Bank NMS. Sincerely, "^^2^^^ >^»rrT-^nh- This paragraph notes that p.^. n^ First '-^"r^T-^'-_V^7^^"nf;iir irH--- are a potential collisions between vessels and right^ ^^ percent of the 200 problem, and that Kr^^^ t^^^^' /f?°^if ication catalogue exhibit Shales in the right "^ale photo identiri ^^^.^^ ^^^ j,„^3 marks indicative °' ="f =°""^^iSiiography . Also, it would be 1988, needs to be added to ^^^"^''^^fl^enci (Kraus 1990) reports useful to note that a "°^^"""^t whale mortalities in the that 20 percent of the '^°'^. "^^t wnai ^^ ^^ animals) westerr. Horth Atlantic °ver the past 2°/^^^ ^^^ ^^^,^ National is attributable t° vessel collisions a ^^^^ „^„ ship rollI^fonrCit^^^rfpecLf t^"=re and faster ships cross Stellwagen Bank. provides a brief description of =^n=^^^^ ^hat studies to be monitoring. Among other P°^"";.^^ Monitoring studies, and undertaken would ^"=1"=^^ "?°i^"^^ics as indicators of species' studies on species P°P"?;^^^°"^f^^^^reats to the Bank's response to natural or human-caused thr ^^^^^^ ^formation for -tdingia^ct-^ --- ^^ ^l^Lte^^^^^^ - -- Saftrfan^^o'^tdLSl/tnf ct^ry^o^t'^U^ose studies related to "? marine maiiiiiia.ls ma^ ^iib *M** — • ■ - ,«-^nn- This section provides a p^gp^ 111 t- ■'^^, ^'^"^"'^:--^rf~7i framework for nanaging the description of the administrative ir^ ^.^^ responsibilities that proposed sanctuary, ^^^es li* sanctuaries and Reserves would be assumed by =t=" °| "tuary Manager, a Sanctuary Division headquarters, the sanctuary ^^y^^ ^^^ ^^^^^ agencies Advisory Committee, and other teaejr • ^(on.= The list is very helpful in explaining the and organizations. The list i i responsible for duties ^d interrelationships of tno ^^ditional point that administering the P^pos^d ^"Ctuary ^^ sanctuaries and ^-^^rv^^ -e^stf a^ a^ £.^ "-^L^u^Sfk^S^arera^d^ ^rfg?t^ha^e^,^?^t?':rc^r=S!^tn't^nroposed^anctuary. ^..M^^l^^^^^-^^^^i^^^^^^k .f^lt^a^l^^hed to notes that a Sanctuary Advisory comm important provide e^-f ,=^^^^ttee^ouirprovlde a vlluable means of issues, such a Committee couiapt ^ sanctuary experts likely to be members. 4.^ .r,^ B«.<;erves Division: This section notes p.^» m. sanrtn^rles ="^_^"^7^"nx i_inn irnnlrl retain resources. Therefore, y^^^J^TiT-.rT^irerves Division to work that the intent of the Sanctuary and K^^^!^^|„°^council and other closely with the New England Fishery Managem ^i3e„here in regional fisheries °^g=""f ^°"! applies to the description of ^:p^°^^!lltierfor"?::^sLl^"r^^Sin:ger which also appears on this page of the docximent. discusses regulatory alternatives for "^^^" activity, a "no ?^at may affect ""^^"^"^ ""^[rr;guUto" alte^Itiv;s are action- and one or more P°tential ^^^^°^^ ^^^^^^ regulatory discussed. The "=^°" =^°"i^d rec«t?ional fishing. In this alternatives ff "™^f ^^^'S^alton document (pages 186-187) regard, *'^"°^=,^^^^!^^'^"shing would not be regelated, indicates that '=°'?"=^="Jht'-reaulatory or non-regulatory Without a discussion of the f^^^^^^^^itematives considered in alternatives, including ^^e no action altern^ ^^^^^^ ^^^^^^^ ^^^ reaching this decision, it is not possj^ decision is appropriate. . ,. *->,o,-B is clear evidence that commercial AS noted above, there is clear ^^ ^^ proposed fishing may directly »"^^^f^"=ies. including right whales and sanctuary's =°=t endangered species^ in 1^^^ significance of sea turtles. I"^'"^; ,f ^^^i^g „ay be as great or greater than effects from =°™»"'r^ti^"' United States Coast Guard wundignxi DC 2059J-OOO1 SianSyiTOoi G-MEP-l BwM (202) 267-0504 16004 1. APR I I 1991 Mr Joseph A. Uravitch Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Ocean Service/NOAA 1825 Connecticut Avenue, N.W. Washington, D.C. 20235 Dear Mr. Uravitch: The U S. Coast Guard has reviewed the Notice of Proposed Ru!e"aklng of February 8. 1991. and the <*"" ^^^^^°™tCagen I.pact Statement/Management Plan on *^-,P-P°=^^i:^i^"I?: Bank National Marine Sanctuary. The toiiowmy submitted for your consideration. Generally the Draft Environmental Impact Statement ;•< DEIS ) for Ste!"agen Bank does not Justify the "^^"^ °^^^f ["^^"^Lting vessel operations as cited in the proposed "^"^^^l P"'" ^^t^^^^ vessel wastewater discharges ^^^^^''^''l,^^^^ ^Zllll' could -ti-i;^a?^:^t-hni:bil^trorMa-J hS f £ cial ^^ t^^t^-/T^ ?rtL^p:o^osir^anc^;:ry.^ NCAA is proposing solutions to a P^^^^" . ^^^^^f="„'f Research adequately defined and based on scientific "^f ^•„^^°^^4"^^^'''' needs to be done to document that the P"^^"^,^""^" ^^^'^^^^ near Stellwagen Bank has been detrimental. Also there is insufficient evidence that the present regulations are inadequate to protect the natural resourc=:S xu the a-eo. The draft Section 940.5 of the proposed rule regarding discharge prohibitions conflicts with Annex V of the Internationa Convention on the Prevention of Pollution from Ships, 1973, as modified by the 1978 Protocol relating thereto as amended (MARPOL 73/78), to which the United States is a party. It also conflicts with the regulations contained in Title 33 Code of Federal Regulaltlons, Section 151.69 (33 CFR 151.69) which implement this convention in U.S. regulation. We, tnerefore recommend that the wording be changed to that used in 15 CFR 924.3(i) for the Monitor Marine Sanctuary, "Discharging waste material into the water in violation of any Federal statute or regulation." Since this sanctuary is within a traffic separation scheme (TSS), the Coast Guard is concerned that future regulations might' be considered to limit vessel speed or change the traffic patterns. Any regulations affecting the safe navigation of vessels on the high seas, must be endorsed by the International Maritime Organization before it can apply to foreign vessels. Therefore, any future regulation to change the speed of foreign vessels transiting Stellwagen Bank or their traffic pattern would need international endorsement to be enforceable. The responsibility of Iteeping the Massachusetts ports navigable should remain the purview of the New England Division of the Army Corps of Engineers (ACOE). Contrary to the first sentence of the second paragraph on page 2 of the DEIS, that states this sanctuary designation would not change the authority of any other agency; NOAA could modify the ACOE's ability to dispose dredge spoils at the MBDS. A better management policy of dredge spoils is alternative two vice three on page 136 of the DEIS. The present twenty year planning proposal for the dredging of Boston Harbor would be further delayed if the MBDS cannot be used. DEPARTMENT OF TRANSPORTATION United States Coast Guard 1. NOAA does not propose to prohibit the discharge from vessels of wastewater materials such as: fish, fish parts, chumming materials or bait used in or resulting from traditional fishing operations; biodegradable effluents incidental to vessel use generated by marine sanitation devices approved by the U.S. Coast Guard; water generated by routine vessel operations (e.g., cooling water, deck washdown, and graywater, as defined by the FWPCA) ; and engine ex- haust. (See proposed 15 CFR 940.5.). Excluded from these exceptions are oily wastes from bilge pumping. NOAA does not intend, or believe there to be, any conflict between its proposed regulation at 15 CFR Part 940.5 and Annex V of the International Convention on the ^ Prevention of Pollution from Ships (MARPOL 73/78) , implemented by the Act to Prevent Pollution from Ships (APPS) . 2. Comment noted. NOAA has added refer- ence to the necessity of endorsement by the International Maritime Organization (IMO) of any proposed Sanctuary regu- lation affecting navigation of vessels on the high seas before it may be ap- plied to foreign vessels. See PART THREE, Section II.C.9. 3. Sanctuary designation will not invalidate or alter authorities imple- mented by the COE to maintgain navigable ports in Massachusetts. However, NOAA maintains that disposal activities at the MBDS are subject to Sanctuary oversight. See generic response D.2. Page G37 "The DEIS does not define the Coast Guard's enforcement role. IT. ^oast'culrd resources for -^-f -^ "^^^^^^^^n^'S^rKload. ^rrs^Sti^r^^is ^^^ ^dSi^r^n^rfu d n. sources anticipated. ^ ^ -„ rn nrovide comments on the rte!?Siren^--"a??rnirMa^nrsLctuary OEIS/.anagement Plan. V. T. WIT ofTM, U.S. eo»ST euKi OUEF, WJIM WliaOweiTM. ^MTICnM OIVISICK IT oitEcnon V m cvMuawr Q USDeoorrmenT of Tror^soonanon Montime Adminisrrarion 4C3 S»ventn Sifeef S .v February 13, 1991 1. 4. NOAA recognizes the full commitments already assumed by the U.S. Coast Guard for a variety of coastal and marine safety and other activities. NOAA intends to initiate discussion with the USCG to determine ways in which the regulatory and enforcement activities of each may be enhanced. .2. Mr. Joseph A. Uravitch Chief, Sanctuaries and Reserve Division National Ocean Service National Oceanic and Atmospheric Administration 1825 Connecticut Avenue, N.W. Washington, D.C. 20235 Dear Mr. Uravitch: This letter is in response to your request of January 31, 1991, for our review and consideration of the Draft Environmental Impact Statement and Management Plan on the Proposed Stellwagen BanJc National Marine Sanctuary. Overall, we have found this document to be highly informative and well-written and the proposed action plan to be sensible and workable. Our only substantive comment concerns the discussion on page 135 concerning discharges from ships . Polluting discharges from ships are regulated in the United States under the provisions of the 1980 Act to Prevent Pollution from Ships (APPS), as amended. The APPS is the implementing legislation for the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 (MARPOL 73/78), as amended. MARPOL 73/78 currently has five annexes dealing with the prevention and control of pollution by oil (Annex I), noxious liquid substances in bulk (Annex II), packaged or containerized harmful substances (Annex III), sewage (Annex IV), and garbage (Annex V) . Annexes I, II, and V are presently in force in the United States, and the U.S. Coast Guara has promulgated implementing regulations . We appreciate the opportunity to review and comment on this document . Sincerely, PAUL B. MENT2 Director, Office of Technology Assessment DEPARTMENT OF TRANSPORTATION Maritime Administration 1. No response necessary. 2. Comments regarding discharges from ships noted. NOAA has incorporated corrective language at PART THREE, Section II.C.l. Page G38 Sancfjaries and Reserves Division Office of Ocean and Coastal Resource Management National Ocean Service/NOAA 13;5 Connecticut Ave. NW Suite 714 Wasnmgton, DC 20235 March 25, 1991 Gtv of Bosion The Environmeni Attn: Mr. Joseph A. Uravitch, Chief Dcpinmcnt gg . stellwagen" Bank .Mational Marine Sanctuary DEIS/.tP RjvmonJ L. Rvnn ^ .... Mjvof Ds^r ^^ • Uravitch: Lorrj.nt M. Dovvncv The City of Boston Environment Department has reviewed the Dircc:or Stellwaae-. Bann Draft Environmental Impact Statement and Master Plan and hereoy submits tne following comments pertaining t.hereto: Bo»iun Tin HllLRoum 8ni 7. c2. The environmental resources of Stellwacen Bank have lone contributed to biological richness and diversity in tne southern portion of the Gulf of Maine, and this valuaole area has in turn both supported the regional economy and instilled an aporeciation of Che natural heritage of the ocean into the people of New England. Althouoh the existing regulatory framework provides seme protection for t.his precious natural resource, the designation and diligent implementation of a Sanctuary will allow the corprehensive and well-integrated management necessary to protect tne area from the ever-increasing pressures which now threaten it. In general, the DEIS/.M? adequately establishes the framework for successful husbandry of this resource area. However, there are some issues which should be more fully discussed in the FEIS/M?. Efforts to clean up the polluted Boston Harbor environment must be given a high priority. One key portion of the harbor cleanup effort is the construction of the Massachusetts Water Resource Authority's Deer Island Wastewater Treatment Facility. The outfall for this important facility will be located approximately 23 k:n from the Stellwagen Study Area. The DEIS/.^ i.mplies agree.T.ent with the Deer Island EIR/EIS conclusion that "a ciff user-type outfall located in the [general Stellwagen] area... would be environmentally acceptable" (DEIS/M? p. 85). Given the demonstrated importance of the Deer Island facility to improved conditions in Boston Harbor, the FEIS/MP should state explicitly that the creation of the Stellwagen Sanctuary in no way conflicts with construction, operation, and/or maintenance of the outfall planned by MWRA. The City of Boston's enthusiasm for the creation a the Sanctuary is conditional upon its full compatibility with the cleanup of Boston Harbor. Protection of one area must not interfere with restoration of another. The question of boundary alternatives should be more fully discussed in the FEIS/MP. NOAA has stated a preference for boundary alternative (2, but does not provide enough information on the relative environmental impacts of choosing these boundaries over those delineated in alternative 13. NOAA does express interest in coordinating management of the general area with the Commonwealth of Massachusetts; alternative #3 would seem to allow the greatest degree of coordination since it would create both a northern and southern boundary with waters under the jurisdiction of the Commonwealth. CITY OF BOSTON The Environment Department 1. No response necessary. 2. Designation of the Sanctuary will have no direct effect on the construc- tion, operation, and/or maintenance of the MWRA diffuser-type outfall for municipal waste materials. The MWRA has suggested that adverse impacts on Sanc- tuary resources resulting from the outfall are extremely unlikely, given in particular the distance from the outfall to the Sanctuary boundary. In general, however, NOAA has proposed a prohibition on discharges into the Sanctuary, or on discharges from outside the Sanctuary which enter the Sanctuary and cause harm to Sanctuary resources or qualities. In the unlikely event of discharges from the MWRA outfall entering the Sanctuary and causing such adverse impacts on resources or qualities, NOAA maintains the authority to impose additional con- ditions on outfall activity, or to stop the outfall activity altogether. 3. See generic response B.l. Alternative #3 would include the Massachusetts Bay Di Site within its boundaries, but as stated in the DEIS granting of an exemption to the prohibition of dumpin this portion of the Sanctuary would be consistent wit policies in Sanctuary areas already in existence. In of this site within the Sanctuary boundaries would al NOAA an more prominent position in managing disposal dredged materials in the area, thereby affording extr insurance that the site will be operated in an environmentally sensitive manner. soosal •y? the c in h elusion so give of a Page G39 i The Environment Department generally supports the preferred regulatory alternatives proposed by NOAA, with the exception of proposed regulation of Offshore Hydrocarbon Development. The NOAA prefers to categorize this type of development as "subject to Sanctuary Regulation." After the moratorium on hydrocarbon development in the area e.xpires, discovery of additional reserves could create economic pressures favoring exploration and development in the Sanctuary area. In addition, the federal government, to the extent that it has an energy policy, seems to encourage exploitation of previously undeveloped hydrocarbon sources rather than emphasize conservation and alternative energy sources. This policy has the potential for creating future development pressures on hydrocarbon reserves in the Stellwagen Bank area. To protect this vital resource against the potentially disastrous consequences of future oil and gas exploitation, this Department recommends the outright prohibition of all oil and gas related activities in the Stellwagen Sanctuary. This point should be discussed more Cully in the FEIS/M?. 4. See generic response E. The designation of Stellwagen 3ank and surrounding waters as a National Marine Sanctuary within the appropriate regulatory framework will help protect the environmental and true economic assets of the area, and will complement the cleaner future envisioned for Boston Harbor. The Environraen: Deoartment looks forward to reviewing the FE:s/.«.?, and to the eventual designation of the Stellwagen Bank National Marine Sanctuary as part of a compre.hensive strategy to restore and protect the waters of the Commonwealth. I t.hank you for your time and consideration on this matter. Sincerely, Lorraine Downey Director '^L /I '/-U'-'l^- 'iy WILLIAM F WELD GOVERNOR ARGcO PAUL CELLUCCJ LIEU TENANT GOVfONOa SUSAN F TIERnEV tecnrTARv (617) 727-9800 1 April, 1991 Mr. Joseph A. Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resources Management National Ocean Service/NOAA 1&25 Connecticut Avenue, N'.K. Suite 714 Washington, D.C. 20235 Dear Mr. Uravitch: On behalf of the Commonwealth of Massachusetts, the Massachusetts Executive Office of Environmental Affairs (EOEA) submits these comments on the Draft Environmental Impact Statement and Management Plan (DEIS/MP) for the proposed Stellwagen Bank National Marine Sanctuary. The comments were developed, in large part, by the EOEA Stellwagen Bank Ad Hoc Working Group, comprised of representatives of agencies within EOEA, including the Coastal Zone Management Office, the Department of Environmental Managenent's Ocean Sanctuary Office and the Massachusetts Division of Marine Fisheries, which have some interest or responsibilities with respect to the regulation or management of the nearshore and offshore waters of the Commonwealth. These comments are organized into five sections: 1) document structure, 2) document adequacy, 3) sanctuary boundary, management, and coordination, 4) regulations, and 5) page-by-nage coc-nents. Page G40 i structure of the DEIS and Management Plan We appreciate the difficulties of preparing a single document to meet the National Environmental Policy Act (NEPA) requirements and, at the same time, include a draft management plan. However as reviewers, we found the organir.ation of the report confusing and recommend that the Final Environmental Impact Statement (FEIS) follow the NEPA guidelines more closely, and that the management plan sections be separate from, rather than incorporated into, the text of the environmental assessment. For example, the current document discusses management issues before the boundary alternatives are presented. This is confusing since each boundary alternative has differing management considerations. Throughout the following comments we refer to the FEIS, rather than separating our comments between the environmental impact statement and the management plan. Adequacy of the DEIS and Management Plan affec Massa FEIS. 2.. designation' and subsequent management plan One purpose served by an Environmental impact statement is to provide a detailed discussion o f the issues on which a decision can be based. COMMONWEALTH OF MASSACHUSETTS Executive Office of Environmental Affairs 1. Structure and format of the DEIS and FEIS documents have been determined by NOAA and DOC General Counsel to meet the requirements of NEPA. However, SRD recognizes the potential for confusion to reviewers, and is currently consider- ing development of a new format for future NEPA documents. 2. Comments noted. FEIS discussions regarding management and regulatory mechanisms have been expanded where warranted by the identification of existing or potential management de- ficiencies. NEPA documents developed on a proposed national marine sanctuary are intended to provide a general overview of the marine area under consideration, including the identification of existing and potential uses of that area. The overall intention of a national marine sanctuary designation is to provide a cohesive management structure for the designated area, through coordination with existing management authorities and implementation of Sanctuary manage- ment where the need has been identified. NOAA believes it has adequately identi- fied and addressed those areas in the FEIS. 3. 4 Absent in the DEIS is a discussion of the current structure for fisheries conservation and management. While the draft management plan specifies that fisheries management will continue as it is at present, i.e. will be unaffected by the Sanctuary designation, there should be a discussion in the FEIS on how fishery resources are managed at present, and how and why the current objectives of fisheries management by the New England Fishery Management Council (NEFMC) and National Marine Fisheries Service (NMFS) satisfy the purposes of the designation. The FEIS should include a copy of the letter the New England Fishery Management Council has sent to NOAA, as provided for under the provisions of Title III of the Marine Protection, Research and Sanctuaries Act (MPRSA) . 2. There should be a more detailed discussion of fishing activity, including seasonality of the fishery, gear types, and the target species. This information is important to the evaluation of the management alternatives. " 3. In the discussion of management alternatives, the FEIS should include a better analysis of the options for sanctuary management of offshore oil and gas activities. The reason for listing the activity as "subject to Sanctuary regulation" seems to be centered on the Presidential moratorium on hydrocarbon development activities in the George's Bank area, to remain in effect until after the year 2000. However, this approach does little to clarify why the existing regulatory structure surrounding this activity is or is not adequate to protect sanctuary resources. \ 3. Comments noted. The FEIS discussion of commercial fisheries has been ex- panded (see PART TWO, Section II.C.l.). See also generic response N. A copy of the NEFMC s response to NOAA's consultation under Section 305(b)(5) of Title III has been included in the FEIS, at Appendix F. 4. FEIS discussion of offshore hydro- carbon activities has been expanded (see PART TWO, Section II. C. 6.). See also generic response E. Page G41 5. 4 The FEIS should include a more detailed analysis of the necessity of prohibiting activities in the sanctuary as opposed to Identifying the activity as one subject to sanctuary regulation. As an example, the discussion of oil and gas activities appears to indicate that the current management regime is adequate and would be appropriate with sanctuary oversight. At present, sand and gravel mining is managed under the same regulatory regime, yet is identified as an activity to be prohibited in the sanctuary. Another example of an activity to be prohibited in the sanctuary, where the discussion of the reasons is inadequate, is the placement of pipelines and cables. 5. FEIS discussions regarding the necessity of Sanctuary regulation of several activities have been expanded. NOAA does not agree, however, that "Sanctuary oversight" of the current management of offshore hydrocarbon activities is adequate or appropriate for sound management of the Sanctuary. NOAA proposes to list offshore hydrocarbon activities as "subject to Sanctuary regulation" in part because currently, there is no planned OCS leasing activity within the proposed Sanctuary's boundaries, following expiration of the moratorium in the year 2000. In addition, NOAA does not believe the imposition of a regulatory prohibition is warranted at this time in light of demonstrated lack of both viable quantities of oil and gas resources and industry interest in development. This position does not imply a lack of concern by NOAA over the environmental threats posed by offshore hydrocarbon activities to Sanctuary resources and qualities. As stated in PART THREE, Section II. C. 8., should circumstances related to recoverable resources and/or industry interest in development change in the future, NOAA will be able to make necessary deter- minations regarding the necessity for a prohibition on offshore hydrocarbon activities within Sanctuary boundaries at that time. See also generic response E. Regarding the placement of submerged pipelines and cables, see generic response J. ~ Certain activities are identified as being prohibited, however there has been no documentation as to the significance of the threat or likelihood that the activity will occur. In addition, this section of the FEIS should analyze the enforcement capabilities, both current and future, and the amount of resources needed for enforcement. Often, a regulatory program is quite adequate if it is enforced. 5. The FEIS should include a more thorough analysis of the existing enforcement regime for the Stellwagen Bank region. The analysis should discuss the strengths and weaknesses of the present system, and identify more explicitly how a sanctuary enforcement presence will improve upon this. 6. NOAA agrees that existing regulatory programs in many instances would be ade- quate if enforcement capabilities were sufficient to provide full implementa- tion. However, both the U.S. Coast Guard and the National Marine Fisheries Service have commented that their en- forcement personnel are fully utilized. In this regard, it is NOAA's intention to enhance enforcement capabilities in the area of the Sanctuary. It is anti- cipated that this objective will be addressed through the development of cooperative agreements, or memoranda of understanding among involved agencies. The development of such agreements would require a more detailed analysis of existing enforcement capabilities. See also PART TWO, Section III.B.5. 6. The FEIS should clarify NOAA's intent to regulate aquaculture within the marine sanctuary. The DEIS does include a discussion of aquaculture activities, but it does not clearly identify the preferred management alternative. While the draft regulations appear to prohibit intensive aquaculture, albeit indirectly, through the Sanctuary's proposed regulation of discharges, extensive aquacultural activities, where additional food is not supplied to the organisms being cultured (and therefore no discharge is involved) , would not appear to be subject to any sanctuary regulation. 7. See expanded discussion of mariculture activities at PART TWO, Section II.C.ll. See also generic response G. Page G42 z 7. The FEIS should clarify whether the intent of the sanctuary is to allow only clean material for disposal at the Massachusetts Bay Disposal Site. r ' -land cu la surv . in the section on management alternatives for historical Itural resources, the FEIS should clarify if the conducting vey of these resources will be allowed in the- sanctuary. 8. NOAA's Sanctuary boundary does* not include any portion of the proposed MBDS. Existing authorities and guidelines relating to the nature of materials to be disposed at the MBDS will not be directly affected by Sanctuary designation. However, as discussed more fully at PART THREE, Section II.C.l., and at generic re- sponses D.'l and 4., NOAA maintains its authority under Title III to regulate disposal activities occurring outside the Sanctuary, if the results of those activities enter the Sanctuary and cause harm to Sanctuary resources or quali- ties. Within this context, NOAA intends to pursue the development of a protocol among EPA, COE, and NOAA which specifi- cally identifies NOAA's role in the existing process of disposal permit review, and in monitoring of the effects of disposal activities at the MBDS on Sanctuary resources and qualities. 9. Comment noted. NOAA intends to prohibit the removing, taking, or injuring of historical or cultural resources within Sanctuary boundaries. The conduct of surveys to locate and identify potentially historic and/or cultural resources within the Sanctuary, whether carried out by NOAA or by private individual or institution, will require a National Marine Sanctuary permit. See Proposed Designation Document, Article V. ("Effect on Other Regulations, Leases, Permits, Licenses, and Rights") . 9. The figures in the FEIS should be of a higher quality than those reproduced in the DEIS. The figures have valuable ,_ information on them but are difficult to read. In addition, the 'O. p£js should include a figure that clearly shows the sanctuary boundaries, the Massachusetts Bay Disposal Site (MBDS) , and the location of the proposed Massachusetts Water Resources Authority (MWRA) outfall. Boundary, Management, and Coordination 10. Comment noted. NOAA has attempted to improve the quality of figures and charts in the FEIS. //. a Boundary ;^fter reviewing the description of the environment and the boundary discussion in the DEIS, Massachusetts supports boundary alternative /3. From an ecological perspective, this alternative is more satisfactory because it encompasses the whole of Tillies Bank and Stellwagen Basin. The discussion in the DEIS indicates that Tillies and Stellwagen Banks and the Stellwagen Basin may be functionally related in that sediment transport may occur between the Bank and the Basin. This alternative will also allow for a greater degree of coordination with the Massachusetts Ocean Sanctuaries Program and the Massachusetts Bays Program. Maximizing the area of Massachusetts Bay to be included within the sanctuary will provide for more cooperative protection of important resources and their habitats from potential adverse environmental impacts. Management The DEIS makes clear the importance of Stellwagen Bank to the state, as Massachusetts citizens are the primary users of the Bank and its resources. These resources, particularly the economically important fish species and endangered marine mammals, move inshore and offshore without regard to geopolitical boundaries. The link between state and federal waters underscores the important role Massachusetts has in the management a Stellwagen Bank marine sanctuary. The FEIS should provide a more detailed discussion of the federal consistency authority exercised by Massachusetts through the Massachusetts Coastal Zone Management (MC2M) Program. Since Congress has clarified states' federal consistency jurisdiction over activities seaward of state territorial waters, Massachusetts strongly believes that the DEIS and Management Plan should clearly state that all activities that are regulated by the Sanctuary would also be subject to federal consistency jurisdiction. Federal 11. No response necessary. See FEIS discussion at PART THREE, Section II. A. 2. 12. In addition to a statement regarding Federal Consistency Determination (see "Note to Reader", part D, page xvii) , an expanded discussion of Federal consis- tency authority has been incorporated at PART TWO, Section IV. A. 6. Page G43 /3. 14. 15 consistency is an unparalleled and powerful tool in effective Icoastal and ocean resource managenent, and firmly linking federal consistency and Sanctuary regulation can only serve to better protect the waters of Stellwagen Bank. Massachusetts evaluates federal licenses, permits and direct federal activities against State coastal policies that address a broad range of resources and interests. The MC2M Program incorporates the policies and regulations of a number of State laws, including the Ocean Sanctuaries Act, the Minerals Resources Act, and the Wetlands and Waterways Acts. Thus, the Program is comprehensive in its focus. The FEIS should include a managenent alternative that assesses cooperative state/federal management. While the Sanctuary is proposed for Federal waters, it is adjacent to state waters that are designated as Ocean Sanctuaries and as critical habitat for the northern right whale. Management of Stellwagen Bank as a marine sanctuary may be more effective through a ^oint, cooperative effort between Massachusetts and NOAA. This alternative should include an evaluation of the ways in which the state's federal consistency authority and the state's management role in the Massachusetts Bays Program can be linked with the Sanctuaries and Reserves Division to manage the sanctuary. Further, this discussion in the FEIS should evaluate the benefits of a cooperative agreement on enforcement between the state and NOAA. In these times of dwindling resources, Massachusetts feels we have no choice but to take full advantage of such opportunities. This cooperative state/federal management alternative should also evaluate the possibility of joint permitting at some time in the future, perhaps using federal consistency as the vehicle for that coordination. A mechanism similar to that utilized by the Environmental Protection Agency (EPA) and the states in the National Pollutant Discharge Elimination System (NPDES) program might be used as a model. As the management of the sanctuary matures, on-site evaluation and permitting is likely to occur and joint permitting would provide for a more predictable management system. The FEIS should also include in this management alternative a discussion of the role of the state in developing research and monitoring objectives, and in formulating the public outreach and education program. These are significant elements of a management plan that must be addressed in a joint management alternative. Coordination Massachusetts supports the establishment of a formally chartered advisory committee with broad representation of the principal users of the Sanctuary. The FEIS should include a draft charter that explicitly describes the advisory committee's responsibilities and provide the committee with a true policy function in the management of the sanctuary. The FEIS should also provide more detail on the composition of the advisory committee. Massachusetts believes the advisory cor.mittee should not be too large but should provide for relevant non-governmental participation. In order to provide for close coordination between fisheries management and management of the sanctuary, Massachusetts believes that the New England Fishery Management Council should be represented on the advisory committee. Massachusetts recommends that NOAA evaluate the charter and functions of the Cape Cod National Seashore Advisory Committee, as a model for the Stellwagen Bank Marine Sanctuary Advisory Committee. While Massachusetts applauds the intent expressed in the DEIS that the sanctuary designation will provide a mechanism for coordination among the various programs and interests in this region, the FEIS should provide more detail on how this will be accomplished. In addition to their normal management, research, and regulatory functions, NOAA and EPA have made significant commitments to resource management in this region in supporting the Gulf of Maine Initiative and the Massachusetts Bays Program. The sanctuary management plan will need to be closely integrated with these two programs, and the FEIS should discuss some of the ways in which this could be accomplished. An important element of all three of these programs is their research and monitoring components. The Massachusetts Bays Program has established a research agenda and has funded studies over the past two years. The Gulf of Maine Council has completed an environmental monitoring plan, and will initiate a pilot program this year. The FEIS should include an evaluation of how the sanctuary's research and monitoring program will be integrated with existing programs. The FEIS should also describe the basic approaches the program will take, i.e. if monitoring is pursued, that the purposes and goals will be clearly articulated, and the program will include, when possible, testable hypotheses, and reflect anticipated funding. 13. NOAA intends that Sanctuary manage- ment include cooperative coordination with the Commonwealth of Massachusetts. To this end, NOAA anticipates that through avenues such as the Massa- chusetts Bays/NEP and the Ocean Sanctuaries Program, where similar objectives are shared with the Stellwagen Bank National Marine Sanctuary, a strong and permanent link between NOAA and the Commonwealth will be established. Because the proposed Sanctuary would be established pursuant to Federal statute, total responsibility for its management rests with NOAA. However, because of the obvious physical and programmatic links, following designation, NOAA will explore ways in which cooperative management efforts could be initiated. 14. The FEIS includes an expanded discussion of the proposed Sanctuary Advisory Committee, (see PART TWO, Section IV. A. 4.). See generic responses 0.1. and 0.2. 15. A more detailed discussion of mechanisms for coordination between the Sanctuary and various programs supported presently by NOAA and EPA for Gulf of Maine resource management (e.g., the Gulf of Maine Initiative and the Massachusetts Bays Program) , will be developed via implementation of the Sanctuary Management Plan, following designation. Specific discussions of research and monitoring priorities and objectives also will be developed on both an annual basis, and on a multi- year planning basis, following designation. Page G44 Regulations Massachusetts is pleased to see the draft regulations included in the DEIS since it gives reviewers the opportunity to see how the management objectives will be executed. Our parallel review of the DEIS and draft regulations point out the need for additional clarification in the regulations. IL r '• " [defined i; normal fishing operations" and "fish wastes" should be in the definitions section of the regulations. 2. "discharge" should be defined in the definitions section of the regulations. 3. the definition of "taking any marine mammal, etc" needs so-e clarification, perhaps in the management plan, as to whether this neans whalewatching vessels will require, and be allowed, permits. ^O. 21. :22. 4. The definition of "taking any marine mammal, etc." implies that seabird hunting, as regulated by the U.S. Fish and Wildlire Service, would require a permit if conducted within the sanctuary. There should be an exemption for this regulated activity. In addition, it say be helpful to define "seabird" - does this refer only to pelagic species, or does it include eiders, cormorants, etc. = 5. Under Article VI, there needs to be clarification between Sections 1 and 2 with regard to fishing activities. If there is a conflict between the regulation and management of fisheries and the sanctuary, does the sanctuary regulation supersede that of fisheries? "" 6. Section 940.5 "Prohibited Activities" should be revised to allow for the routine discharge from bilge pumping on smaller vessels. As this section is worded, most all recreational and commercial fishing vessels, charter boats and whalewatching vessels would not legally be allowed to operate within the sanctuary. Routine bilge pumping helps to keep these vessels from sinking. If the intent to prohibit a tanker or barge from cleaning its storage tanks and discharging that waste, the regulations should so state. 7. Section 940.7 (d) should be clarified with regard to Commonwealth title to an abandoned shipwreck. Massachusetts can only hold title to historical and cultural resources located within state waters. Page by Page Comments Page 1: The conversions, throughout the document, from square nautical miles to square statute miles to square kilometers appear to be incorrect. We would suggest that the following conversions be used: square nautical miles x 1.32 = square statute miles; square statute miles x 2.59 = square kilometers; square nautical miles X 3.43 = square kilometers. Page 16: The distance of the Bank from Provincetown listed on this page does not agree with that provided on Page i. Page 60: Table 3: the landing and value figures for invertebrates seems low, since this figure includes lobster landings. If this figure reflects only those landings reported from federal waters, the FEIS should state that fact. Page 63: the northern shrimp fishery is managed through the Atlantic States Marine Fisheries Commission, not the New England Fishery Management Council. Page 68: clarify "private rental boats" measuring 20 feet or more, as to whether these vessels are active on Stellwagen Bank. Page 69: We question whether recreational fishing for lobster and scallops takes place on Stellwagen Bank. The statement that the value of recreational fishing exceeds that of commercial fishing needs further elaboration, by at least definition: Massachusetts contends that if a fish is sold, that activity is commercial fishing. In addition there is a license designation for commercial and recreational fishing. Page 76: what is the reference used to determine the reasons for a decrease in interest in offshore oil and gas activity in the North Atlantic? Industry representatives interviewed for a Congressional study into the failure of Lease Sale 82 indicated that low interest was due primarily to. low resource potential. 16. "Normal fishing operations" has been changed in the FEIS to "traditional fishing operations". "Fish wastes" has been defined in the proposed Sanctuary- regulations (see Appendix A, at 15 CFR § 940.3(a) (6)) . 17. NOAA does not agree that the term "discharge" needs specific definition in the definitions section of the proposed Sanctuary regulations. The term "dis- charge" is used within the context of definitions found in the Clean Water Act. 18. NOAA does not agree that the term "taking any marine mammal" needs further definition beyond what is currently proposed as Sanctuary regulation. NOAA intends to coordinate closely with NMFS in implementation of pending national whalewatch regulations, which could address the number of whalewatch vessels if it is documented, through Sanctuary or other research, as a causal factor in harassment of cetaceans. 19. See generic response L. 20. See Article V. of the proposed Designation Document. In the event of a conflict between a fisheries regulation issued by other authority and a fisheries regulation issued by the Sanctuary, the regulation deemed by the Director of OCRM to be more protective of Sanctuary resources and qualities shall govern within the Sanctuary. Note, however, that NOAA 'does not propose to regulate fishing in the Sanctuary. See also generic response N. 21. See generic response C.l. 22. Proposed § 940.7 has been revised to delete reference to Commonwealth title to abandoned shipwrecks occurring within Federal waters. Page G45 Page 82: the FEIS should include a brief summary of the findings of the Army Corps of Engineers' DAMOS project, since these are relevant to the future management of the sanctuary. The FEIS should describe what the environmental issues are presently with regard to the MBDS and how the Corps and EPA are attempting to resolve these issues. Page 89: We recommend the following modification to the discussion of the Ocean Sanctuaries Act: " The Massachusetts Ocean Sanctuaries Act prohibits any new discharge of wastewater into ocean sanctuaries (which encompass all of the Massachusetts coast except for the area between .Marshfield and Lynn.) A recent amendment adds a variance procedure to the Act to allow increases in discharge volumes from existing wastewater treatment plants if a strict set of criteria are met." Page 96: The FEIS should include a discussion in its section on the management plan on the existing NCAA and EPA programs in the Gulf of Maine region, such as the NMFS resource assessment program, and other research and monitoring activities. Page 96: Some attempt should be made to use the same numbers, whether a range or an average, for reporting whalewatching revenues. The previous reference, on page 64, is for a different year and a different amount. Page 98: Under regional management, the New England Fishery Management Council should be referenced here. Page 102: The proposed prohibition on the laying of cables is presumably not predicated on eliminating the "potential pipeline leaks." This should be clarified. Page 103: The FEIS should make reference to the fact that the Oil Pollution Act of 1990 requires that vessels prepare contingency plans. Page 103: We suggest that a timetable be established for the completion of a site-specific contingency plan for the Sanctuary. Page 105: Under surveillance and enforcement: the Division of Environmental Law Enforcement, within the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement, has enforcement responsibilities, not the Division of Marine Fisheries. Page 126: The FEIS should also stste here thst the Division of Marine Fisheries participates in the management of fishery resources in federal waters, through the New England Fishery Management Council. Page 139: This section infers that all disposal activities are overseen by an on-board Corps observer. This should be verified with the Corps for the FEIS. It is our understanding that this is not always the case. Page 144: The DEIS mentions the importance of coordination with the Massachusetts Bays Program on the management of wastewater discharges into Massachusetts and Cape Cod Bays. Perhaps even more important would be close coordination with the Massachusetts Department of Environmental Management's Ocean Sanctuary Office, given that new or increased discharges are prohibited in the state- designated ocean sanctuaries except through a variance procedure. Page 146: Under the discussion of the preferred alternative for alteration of, or construction on, the seabed, the FEIS should clarify whether bottom trawling includes scalloping and shellfish dredging. Page 159: Under g. Fishing Activities: the FEIS should clarify what is meant by the statement: "Indirectly, environmental consequences of the status quo alternative may be the gradual deterioration of the environment in which fishing occurs." Page 173: Boundary /2 does not coincide with the Cape Cod Bay Ocean Sanctuary, nor is Boundary #3 contiguous with the South Essex Ocean Sanctuary. These statements should be corrected in the FEIS. Page 183: In Article II of the Designation Document, the text should be changed to state that "portions of the Sanctuary's southern borders are contiguous with the Cape Cod Ocean Sanctuary." Page G46 The Massachusetts Coastal Zone Management Office will initiate a formal Federal Consistency Review for the DEIS/MP upon a receipt :f^°a"ditJr...nation that the S-ctu_ary_a^e^s.gnaJ..o^n^^.s ^consistent Review Coordinator, at (617) 727-9530 x 41 Sincerely, Susan F. Tierrfey CJ Secretary Page G47 Stellwagen Bank FEIS/MP Appendices ^^S^ G48 R. ORGANTZATIONS American Cetacean Society April 7, 1991 Mr. Joseph A. Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Ocean Service/NOAA 1825 Connecticut Ave., N.W. Suite 714 Washington, D.C. 20235 Dear Mr. Uravitch, On behalf of the American Cetacean Society I an pleased to offer the following comments on the Draft Environnental Impact Statement (DEIS) for the proposed Stellwagen Bank National Marine Sanctuary. As Co-chairman of the NMFS Humpback Whale Recover Team and a member of the Right Whale Recovery Team, I know firsthand the challenge of preparing a document like this DEIS, and I complement your division. Project Manager Sherard Foster, Program Specialist Patmarie Maher and Bradley Barr (Massachusetts Critical Zone Management Office) for preparing a well-organized, comprehensive and carefully-edited document. The American Cetacean Society, founded in 1967, is the oldest cetacean conservation organization in the United States. The ACS mission embraces education, research and conservation of cetaceans and their habitats. On behalf of our 3,000 members, now representing 37 countries, I wish to register our strong support 2_ for the creation of a Stellwagen Bank Sanctuary within the National Marine Sanctuary Program. The DEIS adequately summarizes the desirability and need for this designation. Simply put, Stellwagen Bank is extraordinary. Other places also have high fisheries productivity and abundant populations of cetaceans and seabirds, but nowhere else on the U.S. east coast are these resources located so close to major metropolitan areas. Geographic proximity and an existing infrastructure make it possible for over a million people to visit Stellwagen Bank each year, introducing them to the Bank's marine fauna and some of the issues involved in conserving them. Naturalist interpretation on whale watch tours offers outstanding potential for marine education. The whales, dolphins and porpoises are Stellwagen Bank's most visible animals, attracting most of its visitor^sand thereby generating much of the Bank's current economic va'lue for the surrounding region. The current presence of these animals serves as an indicator that productivity at all trophic levels is also high and that environmental quality is satisfactory. Maintaining those conditions will be necessary for whales to continue using Stellwagen Bank in the future. It is possible to imagine Stellwagen Bank with productive fisheries and no whales, but the region would be poorer economically and opportunities for education would decrease. The Bank would lose much of its appeal to the average citizen. Therefore, education and management initiatives dedicated to maintaining healthy cetacean populations and a clean, productive Stellwagen Bank habitat will benefit all of us and all of the organisms in that ecosystem. Management supervision by a Sanctuary Manager and Advisory Committee, as specified in the DEIS, will help guarantee that Stellwagen Bank will always remain the special place that it is today. ACS offers the following specific comments on the DEIS. 1 With regard to sanctuary boundaries, the ACS strongly supports Alternative /3. As stated in the DEIS (p. 173), management planning under that alternative would be developed more from the perspective of ecosystem relationships and interdependence. In our opinion, that is exactly how it should be done. The benefits of borders contiguous with the North Ocean Sanctuary, South Essex Ocean Sanctuary, Cape Cod Bay Ocean Sanctuary and Cape Cod Ocean Sanctuary; and cooperative management with agencies overseeing those adjacent state sanctuaries are extremely valuable. Those benefits outweigh the marginal costs of administering a larger sanctuary. Since Alternative /3 is still much smaller than some sanctuaries already existing within the National Marine Sanctuary System, we have full confidence that Boundary Alternative /3 can be successfully managed. Boundary Alternative #3 includes the Massachusetts Bay Dump Site (MBDS) within Sanctuary borders. We would not oppose continued use of the MBDS overseen by Sanctuary managers and other involved agencies. The DEIS makes a strong case for this option. AMERICAN CETACEAN SOCIETY 1. No response necessary. 2. See generic response B.l. Page G49 3 2. With regard to management alternatives, the ACS favors alternative /3. Initial nomination of Stellwagen Bank as a national marine sanctuary was made in 1983. If management alternative /3 is adopted, the new sanctuary would certainly be headquartered and staffed by the beginning of 1993. A decade is a long time to have waited, but given past circumstances, we would feel satisfied if the sanctuary were fully operational by that time. In contrast. Alternative /2 offers no certain time by which the sanctuary would be fully staffed and operational. This is not acceptable in our view. 3. We recommend location of the primary Sanctuary headquarters either at Boston or Plymouth, with satellite offices at Gloucester and Provincetown. Headquarters at Boston would provide a geographically central location, a politically central location facilitating coordination between offices of the State of Massachusetts and various Federal agencies; and easy access for many people. Headquarters at Plymouth would also be reasonably central geographically, less central politically, but would be nearer to Stellwagen BanX itself. Location at Plymouth could also take advantage of the large number of visitors to the Plymouth Plantation/Mayflower site, and planned construction of a new whale museum coordinated by the New Bedford Whaling Museum. Whichever location were Elected, satellite offices should be located at Gloucester and Provincetown. Those towns are the major ports of access to Stellwagen Bank, via numerous scheduled whalewatch trips and fishing trips. They will be effective sites for research, education and interpretive activities. 4. ACS is in general agreement with regulatory alternatives recommended as "preferred" in the DEIS, with the following comments or exceptions: a. Discussion of the potential impact of sand and gravel mining (pp.7£) should mention the importance of the sandy substratum to sand lance. Those fish burrow in the sand during the day and possibly during longer periods of inactivity at the end of summer or possibly at other seasons. Deleterious effects on populations caused by disruption of the substratum could cause serious detrimental effects to cetaceans, seabirds and fish populations used by commercial or sport fishermen. b. Aemaculture should be prohibited within the Sanctuary, recognizing potential entrapment or entanglement of cetaceans, production of waste-products, or pre-emption of other desirable activities. "b. Offshore hydrocarbon development should be prohibited within the Sanctuary. It is not compatible with other essential Sanctuary uses identified in the DEIS. c. Removing, taking or injuring historical or cultural resources should not be prohibited. Instead these activities i S. (>. ?. should be allowed subsequent to receipt of a permit issued by the Sanctuary Manager in concert with other involved agencies. It is possible to envision circumstances under which removal might be a preferred alternative for purposes of display, scientific study, or other reasons. d. Operation of vessels. ACS agrees with DEIS preferred alternatives for managing commercial vessels and charter boats. However, some provision for managing recreational boats should also be enacted. The Sanctuary Management team may have enough to do during initial years without actively "managing" the numerous small vessels that visit the sanctuary. However, the plan should include provision for such actions at an appropriate time, depending on need. However, an informational program for owners and operators of such boats should be initiated immediately to minimize their impact on ^etaceans and to promote other Sanctuary goals. 5. The Reference List should include sources for all documents cited in the text. A number of government documents were cited, but not listed, including the NMFS Humpback Recovery Plan, NKFS Right Whale Recovery Plan; NMFS Whale watching Guidelines; U.S. Army Corps of Engineers (1988); and DAMOS documents. Listing in L: References will enable the reader to obtain those documents when needed. S<.- does its need for protection and coordinated, multiple-use managsseat. However, effective multiple-use management of an offshore area such as Stellwagen requires careful and detailed planning. While NOA.* has succeeded in producing an admirable document in the DEIS/MP for Stellwagen, we would like to suggest some areas of concern for which additional consideration may be required. 1. Boundary Alternatives: Along with the Stellwagen Bank Coalition, the Center for Coastal Studies recoiMends that Boundary Alternative S3 be chosen as the final boundary for the designated sanctuary. khile NOAA's preferred Alternative il complies to aooie degree with the DEIS' stated goal of encompassing identified important marine habitats related to cyclic upwelling, marine mammal and seabird feeding habitats, spawning areas for sand lance, and vital commercial fisheries resources (page 129), we feel that far more effective protection could be undertaken with the larger boundary. Expansion of the boundary to Alternative #3 would allow for protection of the fisheries resources on Tillie's Bank and on southern Jeffrey's Ledge. The latter area is also an important seasonal feeding ground for the harbor porpoise, Phocoena phocoena. currently under consideration by the National Marine Fisheries Service for listing as a depleted population under the Marine Maamal Protection Act or as a threatened or endangered species under the Endangered Species Act (Fed. Reg, 2/13/91). Title Ill's directive that the purposes and policies of National Marine Sanctuaries are "to provide authority for comprehensive and coordinated conservation and management of these marine areas that will cooplement existing regulatory authorities" [Sec. 301 (b) ( 2 ) ] can be best net by Alternative #3. If designated with boundaries established under Alternative -3, the Sanctuary will abut the North Shore, South Essex and Cape Cod State Ocean Sanctuaries, thus best establishing the potential for cooperative federal and state ocean management. The National Marine Sanctuary Program Regulations (15 CFR 922) recommend that sanctuaries can assist in the formation of "a management umbrella over a fragmented system to help coordinate and strengthen diverse, but related efforts." We feel that only Alternative #3 adequately fulfills this approach. In fact, NO.A.A clearly recognizes that "Adoption of Boundary Alternative #3 would also establish the potential for Marine Sanctuary and Commonwealth cooperative ocean management planning through the Massachusetts Ocean Sanctuary Program and the Massachusetts Bays Program." (page 131). He do not feel that the larger sanctuary size of 702 square nautical miles encompassed by Alternative #3 should present additional difficulty in enforcement or management, particularly in light of the fact that NOAA currently nanages two other earine sanctuaries of con3iderabiy larger size: the Channel Islands (1252 square nautical ailes), and the Gulf of the Faxallones (948 square nautical ailes), and has recently designated the Florida Keys National Marine Sanctuary, which will cover 2600 square nautical ailes. The inclusion of the Massachusetts Bay Disposal Site (MBDS) within the sanctuary boundaries, as defined in Alternative #3, will allow for cooperative oversight of the MBDS by NOAA. Future management of the MBDS, and the potential for disposal of contaminated aaterial at the site, is a major cause of concern for all the aembers of the Stellwagen Bank Coalition, auch of the fishing coamunity, and the general public (see below). CENTER FOR COASTAL STUDIES 1. See generic response B.l. »2. Maoageaent Alternatives: The Center for Coastal Studies supports Manageaent Alternative «3. which would establish a central Sanctuary headquarters within six nonths after designation. This headquarters should be fully staffed with a Sanctuary Manager, research coordinator, education coordinator, two enforceaent officers, and a clerical assistant. In addition, we suggest that NOAA consider locating this office in a central location with good visitation potential, i.e. Plyaouth. We also feel that satellite offices should be established as quickly as possible, preferably within the first year after designation. The Stellwagen Bank National Marine Sanctuary, if designated with Boundary Alternative J3, would stretch froo the Massachusetts Bay North Shore to the tip of Cape Cod - a linear distance of approxiaately 40 ailes. Satellite offices in Gloucester and in Provincetown would be particularly effective in adding the aaxiaua possible exposure for the Sanctuary prograa, since Provincetown and Gloucester are currrently the two largest centers of coamercial whalewatching and recreational boating to the Stellwagen Bank area. Provincetown also receives the treaendous added tourisa component of the Cape Cod National Seashore, the Bost visited National Park in the United States. Any educational or public relations prograas at a centrally-located headquarters office (for exaople, on Boston's South Shore) would be likely to aiss this huge user group. A single staff person, focusing on educational outreach, in each of these two satellite areas, would greatly increase Sanctuary visibility. In addition, recreational fishing targeted at the blue-fin tuna aarket is generally concentrated on Stellwagen's northwest and southwest corners; aany of the boaters involved in this fishery use Provincetown and Gloucester as seasonal hoae ports. Boater education prograas regarding Sanctuary regulations are likely to be best served through Sanctuary personnel located in these two ports. NOAA's justifies its preferred Manageaent Alternative 12 based on its being the aost cost-effective alternative (page 133). However, we believe that two satellite offices, aaintalned with one representative each, could be established for an additional $85,000 in rY1992, a relatively saall cost considering the potential benefits. This proposed additional budget is 2. Comments noted. See PART THREE, Section II. B. Page G52 based on the following estiaated costs: Education/enforceaent staff X 2 140,000 Office lease X 2 $10,000 (in reality, we feel it may be possible to have the necessary apace donated at each location, or to use existing NOAA space) Office equipment 12 $10,000 Addition to Manager's Fund $25,000 Activities having a potentially negative impact on the Sanctuary's resources are increasing daily. Establishing satellite offices quickly, m the two areas where most visitor use is likely to originate, can only benefit the Sanctuary's goals of resource protection, education, research, and multiple- use. In addition, local involvement in the Sanctuary and its programs is likely to increase with the addition of these satellite offices. We strongly concur with NOAA's intention to establish a ijanctuarv Advisory Committee (page 112) to assist in all phases of Sanctuary management. This committee should be comprised of members of the various Stellwagen Bank user groups, including the whalewatching and fishing industries, representatives of the environmental community, and institutions that have conducted research on Stellwagen Bank. 3. Comments noted. See PART TWO, Section IV. A. 4. 4 Commercial and Hecreational Fishing He concur with NOAA's recommendation that commercial and recreational fishing ..hall not be regulated as part of the Sanctuary management regime (page 186). Existing fishery management authority under the New England Fishery Hanageaent Council and the National Marine Fisheries Service should continue to regulate all fishing activity within the Sanctuary. However, we do feel that sanctuary designation can provide assistance to these agencies in terms of educational programs for both recreational and commercial fishermen. Sanctuary enforcement staff can also serve to enforce existing regulations passed by the Management Council under the Magnuson Fishery Conservation and Management Act 16 U.S.C. 1801. The additional environmental protection afforded by sanctuary designation should prove to be helpful in assuring the future of fish stocks as well. 4. See generic response N. s Discharge or Disposal Activities. We fully support NOAA's preferred regulatory discharges o alternative of prohibiting all s port NUAA s prererreg reguiaLorv ait.ct;ia,.i .^ ^>. — ^ n -t--, r deposits from any location within the boundaries of the Sanctuary. We concur with the fact that the prohibition should also apply to the deposition or discharge, from beyond the boundaries of the Sanctuary, of materials or substances of any kind that subsequently enter the Sanctuary and injure a Sanctuary resource or quality (page 135). This position is also supported by the Stellwagen Bank Coalition. Dredged Material Disposal We concur with NOAA's preferred alternative of continued disposal at the MBDS under Sanctuary oversight, but prohibited elsewhere (page 136). Considering all the economic and environmental factors, we feel that this is, in fact, the only acceptable alternative. While the concept of a dredged disposal dump site within a National Marine Sanctuary may on the surface appear to be in contradiction to the general goals of sanctuary designation, we understand that the existing site is considered by the Army Corps of Engineers (COE) and EPA to be the most feasible site. It is not our intention to halt the disposal of clean dredged material within Massachusetts Bay, any material that passes the strictest interpretation of the EPA's 1989 protocols for clean dredge spoils should prove harmless to sanctuary resources. Under these circumstances, we see no difficulty in continuing the use of the MBDS under Sanctuary oversight. In addition, we see no reason why the other agencies involved (MCZM, EPA, or COE) should have any objection to this arrangement. However, future plans for development in the Boston area that are likely to require the disposal of large quantities of contaminated material continue to raise concerns regarding the nature of that disposal. Sediments which do not meet the standards set by the 1989 regional protocols established by the COE, EPA, NMFS, and the Fish and Wildlife Service (FWS) should clearly not be permitted at the MBDS under any circumstances, and will meet with strong objections from the Center for Coastal Studies regardless of Sanctuary status. If it is the intention of the other regulatory agencies to dispose of nothing but clean material at the site, we see no reason to designate a smaller sanctuary for the sole purpose of excluding the MBDS from its boundaries. Regulations under 40 CFR 228.10, Criteria for the Management of Disposal Sites for Ocean Dumping, provide special consideration of the effects of disposal activities on nearby National Marine Sanctuaries. Consistency dictates that the same reasoning used by NOAA in relation to wastewater discharge - "Given that this area contains a number of highly sensitive resources and is subject to intensive human use, even relatively small impacts can produce significant environmental changes" (page U3) - be applied to disposal of dredge spoils. We hope that "relatively small impacts" will be detected early through any additional monitoring of the disposal site provided through the Sanctuary program. 5. See generic responses B.l. and D.l. Page G53 L We question NOAA's interpretation of potential for regulation of dredge disposal activites outside of the boundary as possible only "if it is deterained by NOAA . . . that this naterial has entered the Sanctuary and injured a Sanctuary resource or quality" (paje 137). Under 40 CFR 228.11, the effects of activities at the disposal site shall be categoriied in Impact Category I if "There is identifiable progressive movement or accumulation, in detectable concentrations above normal ambient values, of any waste or waste constituent from the disposal site within 12 nautical Biles of any shoreline, marine sanctuary designated under Title III of the Act, or critical area designated under section 102(c) of the Act." Our legal consultants have interpreted this language to indicate that any disposal activity within 12 miles of the Stellwagen Bank Sanctuary can be regulated by NOA.A. Both Boundary Alternatives #2 and »3 would thusly require co-management of the MBDS by NOAA, COE, and EPA. Wastewater Discharges uv » t We support NOAA's preferred regulatory alternative of prohibition of wastewater di-^rharges into the Sanctuary (page 143). This is also the preferred regulatory alternative of the Stellwagen Banii Coalition. Clearly, the Clean Water Act does not provide for permit analysis of cumulative impacts of wastewater discharge into coastal waters; in a meeting held on October 31, 1990, in the Hyannis, Massachusetts, office of Congressman Gerry Studds, this very shortcoming in the Clean Water Act was discussed by representatives from the EPA in relation to the wastewater outfall planned by the Massachusetts Water Resources Authority (MWRA). 6. No response necessary. See generic response C.2. t Aquaculture Activities ,_., -^ . --u ►», We believe that aquaculture activities should be prohibited within the Sanctuary. Construction of large fish farms, such as the one recently permitted for construction east of Gloucester, Massachusetts, would be in violation of the proposed prohibition on alteration of, or construction on, the seabed. In addition, the relatively large areas required for such activities result in exclusive use of open ocean space; we feel that this exclusion of all other users to areas within the Sanctuary would be contrary to the purposes for which Marine Sanctuaries are designated. 7. See generic response G. Alteration of, or Construction on, the Seabed We fully support NOAA's preferred alternative of prohibitton of alteration of. or constrrution on. the seabed, other than those exceptions listed on OI . or COn3Lrt-UI- mil mi t \.\\^ jcnm^vJt w w..^. page 146 of the DEIS/MP. As noted in the DEIS/MP, existing regulations _ leave considerable gaps in seabed protection for this special area. This is the recommendation of the Stellwagen Bank Coalition as well. 8. See generic response J. Offshore Hydrocarbon Development We do not agree with NOAA's recommendation that offshore hydrocarbon development within the Sanctuary be identified as subject to regulation (page 149). We feel that any hydrocarbon development within a National Marine Sanctuary cannot under any circumstances be considered to be amenable to the purposes of sanctuary designation, and such activities should therefore be prohibited. This is also the recommendation of the Stellwagen Bank Coalition. ative impacts on Sanctuary resources from a drilling or accident are obvious, as noted on page 149 of the DEIS/MP. agree that the current moratorium on hydrocarbon area would result in duplicative regulation. In light of 's recently released National Energy Policy, which e hydrocarbon development, we feel it is particularly e activities to be prohibited within the Sanctuary from The disastrous neg transport-related However, we do not development in the the Administration encourages offshon important for thes designation. A precedent exists Sanctuaries at the hydrocarbon activi for prohibition of hydrocarbon development within Marine Channel Islands National Marine Sanctuary, where ties were prohibited on new leases at designation. /O. lining and other Offshore Industrial Materials Development We fully support NOAA's recommendation that sand and travel industrial development be prohibited (page 151). The Stellwagen Bank Coalition also supports NOAA's recommendation on this issue. There is no doubt that such activities would change the very nature of the Bank, and destroy the delicate fabric of this ecosystem. 9. Comments noted, response E. See generic 10. See generic response M. Vessel Traffic The Center for Coastal Studies has obtained data from the vessel registry maintained by the Commonwealth of Massachusetts which indicate that registration of vessels under 40 feet has increased drastically within the past decade. During 1989 the Commonwealth registered 250,115 vessels, an increase of 26,000 over the previous year, and an increase of 39,688 since 1986. Of these, the majority (188,430 or 75.31) are vessels of under 40 feet driven by inboard or outboard engines (auxiliary sailing vessels not included). While it is impossible, based on e-xisting data, to determine what percentage of these boats use the Stellwagen Bank area, we can most likely assume that many of them are used in Massachusetts coastal waters, and that those in the 16-40 foot range (86,153 or 34.41) are easily capable of travel to within the proposed sanctuary boundaries. A number of the Page G54 rc:~:Uh'(Lt. Cdr. Gold, U.S.C.G.. P-^^ =---^^2 y t "^ data do not include any documented vessels, and therefore are likely represent mininium sanctuary usage numbers. While the DEIS/MP discusses in some detail vessel '^^"'^."^f '^ J° commercial whalewatching {pp. 63-681, sportfishing (pp. ^^'f ' ' * „„,^„,^., commercial shipping (pp. 69-75), little attention is given to he potential impact on sanctuary resources of recreational boaters. The DEIS/MP : ommenSs including commercial shipping traffic -'hin he scope of future re%"";,1.Hnn as well. We do not agree that including such traffic w thin the sc^e of regulat on would be any more duplicative page 155) than NOM-s proposarto lisrcom.ercial shipping traffic as . regulated activity. The whalewatching regulations currently being developed "^ ^he Jlational Marine Fisheries Service will cover both commercial and P^'y^^^J^^^^^^^ engaged in whalewatching. However, we have no evidence 'hat whalewatching "ssels and shipping traffic are the only —« = ^^^^'" i^f, , ° '''''' whales. Since regulation of recreational, sportfishing, commercial shtppt^g, or ferry service vessels simply traversing the Bank """Id be ^u sue if the scope of the proposed whalewatching "^^^'-^'^f^J^'" ^ „ vessel traffic regulation may be required. The recommendation of the Center for Coastal Studies that both commerical shipping and recreational vessel traffic be subject to regulation is the recommended position of tne Stellwagen Bank Coalition. Thank you again for the opportunity to comment on the proposed designation of^he Stellwagen Bank National Marine Sanctuary. We will continue to follow its progress with great interest, in the hope that future designat on wtll provide "he overall management and protection that this area so richly deserves. 11. Comments noted, and information referenced at PART TWO, Section II. C. 3, See generic responses K.l. and K.2. Sincerely, Kpi-'OLo (y^ X-^' Ct.oL" Steuer of Conservation and Educational Programs Page G55 A: Humpback whale "Neige" 5/14/89 and 8/6/90 B: Humpback whale "Wink" 1/4/91 fThis whale was sighted pre-vessel strike as a calf in 1989). ,£^^: Humpback whale "Vibes" 6/28/89. 7/29/89 and 8/10/90. Humpback whale "Headlight" 4/21/89. 10/24/89. and 8/8/90. Al pivtos CenlcT lor Coislal Sludlei I -• B A: Humpback whale "Bandit" 10/24/89 (This whale was sighted pre-vessel strike earlier in 1989). B; Fin whale 'G-notch" 6/30/84 (This whale was first sighted in 1982 with existing scar). C: fin whale "Furrow" 9/14/85 with fresh wound. Pholo: Aibnlc Cclacian Resurcn Center A; Fin whale "Ladders" 9/6/84 and 6/20/85. B: Fin whale "Braid" 6/22/80 (This whale was first sighted in 1980 with existing scars). Fin whale "GSC-0733" 9/9/88 with fresh wound and possible older scar. Page G56 J. & Center for Marine Conservation April 9. 1991 Joseph A. Uravitch, Chief Washington, D.C 20235 Conunen. on D.a. Hn-onn,en:^ I.pa« ^^^^Z^^'^^^^^^l^^lT^^^ |?o'S'^LT8:^99rp'agt/2S^3iaSosed S.eOwagen Ban. Na.onal 58, Dear Mr. Uravitch: /r\Ar\ a national non-profit ciuzens The Center for Marine Consetvanon (CMc; ^^^^^^_ welcomes th^ organization dedicated to conserving manne ^^-=' ^^^^^^j.uons on the DEIS/MP opportunity to offer the f°"°-"g/°!^"3fr^ne Sanctuary (SBNMS). TTus letter for the proposed Stellwagen Bank Nat>on=a Manne ^^y ^^,^ ^,^^, 13 expands upon our oral tesumony P^""'f? ^^'j, jg ?, Washingtoiv DC. Your careful „„,^t„„ 1991 in D^bury, Massachusetts ^^'^ °" j^'f 'Vsion in the administrative record is CENTER FOR MARINE CONSERVATION consideration of these comments and their mclusio appreciated. ^ Uo response necessary. - ^ ,ou .ow. CMC has ^ n year .usj of aoi^^^^voWement o^issues concerning marine protected are^ ^^^,^f J^P^^^mental in organizing the Sanctuary Prograrn (NMSP). 7^=^"'" * coordinate its activities. As strong Stellwagen Bank Coabuon and ,'^°;"""'sVVe Xleheartedly support the Stellwagen believers in and proponents of the NMSP^e w^o^ considerable work that you and Bank National Marine Sanctuary. We contend tne ^^ ^^ ^^ your staff have devoted to ^^is effort thus ^ar^ m ^^ p^gram in his President Bushs stated support of ^= X°y^,^uonal Conference on Underv^ater Janua.7 31, 1991 letter to a«endan^/' %™;™^°,, sanctuaries and other Educadon. His letter stated that, m ^^J'^'^^ safegi^arding the marine protected areas offer one of the b"t ■ne'hod^, 3^ Jt = ^^^^ comments to Environment.- With thrs .5^'^'""' '" ^^c^;,*^ prmecion that this area deserves. ensure that sanctuary designation does secure tne p While we feel that it, general ^ou have Put forth a respor^^^^D^^^^^^^^^ are key areas " *= sanctuarys boj^^^l^ ^^.^^^d that your proposal fails to Disposal Site (MBDS) to "^"i *'"' ^° " *''^e long-tenn. comprehensive resource pnimdaries The national significance and --''^^J^'^^.Sr^T.'eSor^^^^^^^^^ demands that it be afforded ^f V''°Hfr^ dteSve' #3 ^Se boundary for the strongly urges NOAA to ad°P'. bound^ alternanve #^ a^ ^^ ^^^ SteUwagen Bank Nfonal Manne Sand^^^ bound^altemative. Indeed, of aU the and manageability favor the adoption of J^ boun^ ^, ^^^^ ^^ opportumty to Sr ir^ proS'^-d Jo'i'preit management of the SteUwagen Bank system emphasized in your plan. I, , it,, renter for Marine Conservation Sanctuary. 2 See generic response B.l. K^t, we dispute *e app^ent^-cli^io^^^^^^^^^^ ^th^ ^^E^S/MP ^at e ^ preferred boundary alteniat.ve (alternauve #2) m^ ^^ ^^^ ^ j^g focal habitats f°^,»"^,^7 fi/h/^.^SmHi e ™38, 63. and 57). the Stellwagen to infonnation addressed m the ^EIS/MK ^i.e^P » Stellwagen Bank Bank cotiference proceedings (i.e. P^S". ^^ .^j.^^^^se resources move in and out of technical report document ^-'J^gl'^^^.'S'^,"^ from year to year. Although these boundaries seasonably and ""''" f "= "^ boundaries that encompass all „ ^k-7 3. of JefEre/s Ledge. Both the DEIS/MP and the EPA's July 1990 Draft Environmental Impact Statement for the Designation of Dredging Material Disposal Site in Massachusetts Bay (pages 5-7), identify these areas as being heavily utilized for ' , feeding, nursery and spawning purposes by the same marine mammals and fishery populations that frequent Slellwagen Bank. Inclusions of these key areas would greatly increase the ability to comprehensively protect important sanctuary resources without greatly increasing its size. The DEIS/MP seems to recognize this on page 131. Secondly, boundary alternative #3 extends to and abuts four state ocean sanctuaries. TTie DEIS/MP states on page 173 that NOAA supports the link between the Marine Sanctuary and the Cape Cod Ocean Sanctuary because "possibilities for coordinated approaches to this objective should result in better, more cost-efficient management of the overall Stellwagen Bank/Cape Cod Bay system." The Center agrees with this statement and believes that links between the Marine Sanctuary and the other three Ocean Sanctuaries which alternative #3 offers will also result in achieving the same benefits for the entire area. We also believe these links will be effective in improving management since the Commonwealth of Massachusetts has officially expressed its support for boimdary alternative #3 and has voiced its desire to actively partidpate in the management of this sanctuary. Thirdly, alternative #3 encompasses all of the proposed Massachusetts Bay Disposal Site. This inclusion will allow for adequate monitoring of the resources, if this site continues to be used. It will also provide another level of protection to ensure that this activity does not damage the sanctuary's marine resources. NOAA's "preferred" boundary alternative #2 does not encompass all of the area's critical resources and habitats. The DEIS/MP seems to recognize this on page 173 and 131. In addition, because many of the resources do move in and out of these areas, boundary alternative #2 does not adequately protect the resources it suggests it will from several activities that threaten them. These activities include the alteration and dismrbance of the sea bed (through the development of artificial islands or mining), hydrocarbon development, aquaculrure and the leaking of pipelines. If the intent is to ensure that vital sanctuary habitats are provided with comprehensive protection, and not, as it appears in the DEIS/MP, to make allowances for EPA and the Army Corps of Engineers with the Massachusetts Bay Disposal Site and Minerals Management Service for industrial materials and hydrocarbon development, then at a minimum you must include the area's habitats that are highly frequented by the areas marine manmials and fish, allow for the sanctuary to be adjacent to the four state ocean sanctuaries and include the MBDS in the boundary. Prohibitions /Reeulations The Center strongly endorses four of the six prohibitions NOAA proposes for the Stellwagen Bank National Marine Sanctuary. These include the prohibition of: o dredging, excavation, or any other alteration of, or construction on, the seabed within the sanctuary; o all phases of developmental activities coimected with the extraction of industrial materials (e.g., sand and gravel resources); o the installation of pipelines and cables within the Sanctuary; and o the removal, alteration, or damage (or the attempt to cause the removal, alteration, or damage) to any historical or cultural resource within the Sanctuary. The Center finds the remaining proposed regulations deficient in that they are ambiguous and/or inadequate to offer the level of protection this area and its resources deserve. Discharge /Deposit: While NOAA proposes a prohibition on the discharge or 3^ ggg PART TWO, Section II. C. 8. and deposit of materials or substance (this does not include routine vessel operations) particularly the discussion* at PART either from within or outside Sanctuary boundaries that will affect the Sanctuary's THREE Section II C 1 A resources, NOAA is unclear as to what such a prohibition would mean, and in ' particular, what it would mean with regard to the continued use the Massachusetts Bay Disposal Site (MBDS). NOAA should clarify this to ensure that it is consistent with protecting the sanctuary's resources from the effects of pollution within the Sanctuary and outside the sanctuary where it might adversely impact the sanctuary. CMC reconmiends that NOAA take the position that EPA do further studies to locate a site that does not endanger the resources. If such studies fail to locate such a site and a decision is made to continue dumping at the MBDS, NOAA, as the agency responsible for protection and management of the area's national significance of marine resources, should be actively involved in these derisions regardless of whether the site is located within or adjacent to the sanctuary. Permits should be rigorously conditioned with respect to cleanliness and volimie of dumped materials. With increased spoils of over 4 imllion cubic yards from activities including the D <-• c o development of the third anery turmel projert and several large dredging projects fage GOo there is a great danger of too much material and contaminated materials being dumped in the site because of the bck of an alternative plan for excess and contaminated materials. i An adequate monitoring program should be implementet^ to deect any adverse impacts on san^a.7 resources or qualities. In addition, it should be clearly stated, tot^ mat er if 7c MBDS be in sanctuary boundaries or outs.de the burden of nroof^U blon the discharger to show that sanctuary resources w,U not be damaged SXre a peLt/certification'can be given. In th.s regard, the sonctuon. program should pay special attention to the potential for cumulauve unpacts. NOAA should be required to officially "approve" or "disapprove" a permit or certification request. The requirement will allow NOAA to achieve its goa^ of prmertng "he resources so as to avoid creating a situation where an actmty ma^t be ^ r^^el because "no action" was taken by the ag-^^ This -'^ ^^^^^^ "^^'^ bi the Memorandum of Agreement between NOAA. EPA and COE. The sanctuary monageVand the sanctuaiyadvisory committee should be very aa.ve m these decisions. The sanctuary program should be used as a vehicle to improve and moriitor water qu^iw^n thVaVea. We look to NOAA to work with existmg water quality ma^lemem entities to ensure that established water quality standards for already "e^^ted point source discharges are fiercely enforced -f^ -° -"°-J--"'='^- ^" addition, NOAA should vigorously pursue and encourage the best avmlable mi^a°emenVand monitoring practices to minimize pollution associated ««h land STedi^urces including effluent outfall tunnels. We are especially concerned with Sr Massachusetts Water Resources Authority (^"^^^'Z^lT ' - which will spew out 500 million gallons of pnmary treated effluent mio Massachusetts Bav daily for at least four years - will have on the resources. Tliere is s^a ^^at^oncL ailong many scientist of the impacts this amount of increased nutrients will have on this fragile ecosystem. Vessel Traffic- CMC is in support of NOAA's recommendation to place commerda] Sh^the scope_ofreg^Lo._and to research tins a^^^^ We s c I tramc unaer ine scope ui icgumuuiL^ .^- ~ ' " , . „ .„, lu, ,._„, ^c also recommend that recreational vessel traffic be placed "^.'l" .'^^^^^"P' °' _ . by regulations and researched immediately. Suffiaent informanon has been coUerted by orSn^rLluding the Center for Coastal Studies, New Englaijd Aquanum, arid C?^ Research Unit indicating that most vessel strikes on *bales n^y becat^ed bv relatively small boats. The DEIS/MP also pomts out on page 74 that 60% of the 200 whales in the New England Aquarium's photographic catalog exhibit markings presumed to be charaaeristics of vessel collisions. ' The DEIS/MP states (page 70) that future shipping in the area will "be dominated bv the movement of petroleum". However it also reports thatlhe ■possibility of oil spills resulting from vessel collisions is very mimmal. |he Center disputes Uiis statetiient especially because Boston is one of the top ten U.S. ports m the quantity of oa it handles. The Center would like to see NOAA discuss probabilities of oil spills for the area in the FEIS/MP. TTiis mformation can be avanable from the Coast Guard, NOAA's Ocean and Manne Assessment^d Minerals Management Service. Events including oil spills that ocoirred off the coasts of Alaska, Rhode Island. Delaware, and Texas, the last three occurring dunng a single dav in June 1989 demonstrate that accidents do occur and can result m extensive d^age to marine resources. The Center recommends that NOAA support efforts to monitor the movement of commercial cargo vessels in the area to alleviate vessel collisions and other events that may lead to oil spUls. A suggestion is to develop a Vessel Traffic System for the area. Off^hor. r... ,M Oil Development: The DEIS/>^ states on page 96 that "the ?. hghest management priority for the proposed sanctuary is long-term protection of the S and non-Uving Resources of the Stellwagen Bank system." 1° *-^"g '°*^^„ this goal, CMC recommends that NOAA permanently prohibit offshore hydrocarbon activities within the boundaries of the sanctuary. We strongly disagree with NOAAs stated approach to only list this activity within the scope of r^g^l^t^- ^1= moratorium on the development of hydrocarbons unul the year 2000 for the ^ Stellwaoen Bank area does not provide the long-term protection that the areas resources deserve especially as a national marine sanctuary. NOAA recogmzes on pace 169 the dangers of gas and oH development. It also recogmzes on the same paie that "the biological resources of the Stellwagen Bank system, "P^'^^J ^J; m^e mammals and the commercially-important fishenes. will always be vulnerable to the effects of oil and gas development activities". A prohibition on oil and gas activities within the Sanctuary's boundaries would provide peirnanent protection to these and other resources. This prohibition would not be a duplicauon of the moratorium since a prohibition wnll provide long-term protection for the resources. This prohibition is consistent with NOAAs goal; to protect the areas resources. AfluaoillUK: Aquaculmre facilities are a navigational hazard, increase the potentiffC^eXunal entanglements and o»«tn.««dmona^^ us«o Je indudine commercial fishing. This activity is not compatible with protectmg me Snt^feSr« CMC urges NOAA to prohibit aquaculmre activines in the sanctuary. Bank 4. See generic response C.2. 5. See expanded discussion at PART THREE, Section II.C.ll. and 12. See also generic response K. 6. Given the safety record of commercial shipping operations within the Vessel Traffic Separation Scheme in and out of Boston, NOAA has not found coinpelling reasons at this point to develop detailed discussions on the probabilities of an oil spill within the Stellwagen Bank area. However, development of the Sanctuary's contingency plan will address these areas of investigation. 7. See generic response E. 8. See generic response G. Page G59 10. r" Marine Mammals and Seahirds: The Center strongjy supports NOAA'S proposal to provide additional protection to marine mammak, marine reptiles and sea birds within the SBNMS. We endorse NOAA's proposal to incorporate prohibitions on the taking of marine mammals, reptiles and seabirds. already afforded under the Marine Mammal Protection Aa (MMPA) and Endangered Species Act (ESA), into sanctuary regulations, as stated on page 195. We further suppon NOAA's intent to extend a prohibition on takings to species not covered by either of those statutes, as stated on page 153. However, the full meaning of the proposed regulation on taking, as written on page 195, is not entirely dear to us. In particular, we are concerned that the proposed rule, as written, may not accomplish the stated objective (page 153) of extending protection to species not already covered under MMPA or ESA. This concern can be addressed by rewriting the proposed rule on page 195 to read: Taking of any marine reptile, marine mammal or seabird in or above the sanctuary, except as permitted by regulations promulgated under the Marine Manunal Protection Act (MMPA), the Endangered Species Act (ESA), and the Migratory Bird Treaty An (MBTA). The inclusion of the MBTA would extend the ban on takings to non- endangered seabirds. Certainly, the MBT.A is relevant to protection of sanctuary resources and should be discussed in the DEIS/MP. Fisheries: Overall, the Center believes that recreational and commerdal fishing activities can be compatible with sancmary designation. Nonetheless, fishing activities do have important effects on sanctuary resources and should be considered while developing a management plan for a sancmary. Sanctuary DEIS/\fFs should evaluate the existing fishing regulations and management regime and whether they can be improved by sanctuary specific regulations. In the case of SteUwagen Bank, it appears that the existing framework of federal and state regulations govenu'ng fisheries provides a better mechanism for managing fisheries than the sanctuary and consequently we recommend no additional fisheries regulations for the SBNMS. We remain concerned about problems in the region's fisheries, but feel that the sanctuary is not the appropriate mecham'sm for addressing them. Because fish are vital components of the marine ecosystem, at the very least we would encourage NOAA, as pari of its research program for the SBNMS, to monitor the status of local fisheries as well as the effect these activities may be having on other sanctuary resources. Because fishing aaivities are also a long- standing and important economic activity in the region, every effort should aJso be made to consult with the fishing community with respect to these assessments. Finally we would encourage NOAA to lend some of its resources to strengthem'ng present surveillance/enforcement capabilities so vital to ensuring the sustained use of fishery resources and for preventing damage associated with harmful fishing practices. 9. Comments noted. Corrections have been made to the proposed Sanctuary regulation regarding taking of marine reptiles, marine mammals, and seabirds. Discussion of the MBTA is provided in Appendix B. 10. See expanded discussion of fisheries issues at PART TWO, Section Il.c.l. See also generic response N. 12. Management Issues Management/Budget: Given the location and current high level of use of the SteUwagen Bank area by both tourists and residents, CMC strongly urges that management alternative #3 be implemented. This plan ensures rapid implementation of the sanctuary program in the SteUwagen Bank area through the fuU funding, fuU staffing and establishment of local sanctuary headquarters as weU as at least two "sateUite" information centers. SateUite offices would enhance all facets of the program including education, research and management Staff should include at a minimum a sanctuary manager, a research coordinator, an educational coordinator, two or more enforcement officers, one staff member for each satelhte office, and a secretary. Cost will not be high for the additional sateUite offices since most Ukely space may be donated or leased at a low price from other government agencies or private organizations. Additional funding should be added to the educational program and to the manager's fund to assist in the management and educational programs for the satellite offices. The budget of $570,000 proposed in the prospectus accompanying the DEIS/MP would not allow for full staffing or adequate management, educational, and research programs. If the Admim'stration is indeed committed to this program, a realistic budget should be developed. Please see the attached budget for a proposed sanctuary budget Proper funding is essential if the program is to fulfill its congressional mandate to provide long-term, comprehensive proteaion to the nationally significant marine treasures of this region. Education: Ultimately, the protection of the SteUwagen Bank area's rich natural heritage will depend on a knowledgeable and caring public made up of both residents and visitors alike. Thus, the SBNMS educational component is very important The sanctuary program is unique in its ability to promote a national and regional view within local educational settings. In addition to promoting respect for and wise stewardship of our marine heritage, we encourage the SBNMS program to develop and utUize educational materials that draw clear coimections for people between resource values and any regulations develop to enhance resource protection. In addition, we encourage NOAA to work closely with private organizations, and programs including the Massachusetts Estuaries Program, the Gulf of Maine effort and non-profit organizations. 11. Comments noted. See PART THREE, Section II. B. NOAA intends that at a minimum, a Sanctuary Manager and office facility will have been selected by the time of final designation. Remaining Sanctuary staff will be hired shortly thereafter. Available funding for Sanctuary staff, facilities, and programs is contingent upon Congressional appropriations to the National Marine Sanctuary Program. 12. Comments noted. NOAA recognizes the importance of education/interpretation programs to the overall success of the Sanctuary. Page G60 12. 14. 15. lU Research: Regarding research activities, emphasis should be placed on "applied" research, directed at monitoring long term environmental trends, cumulative impacts and in fashioning remedial measures for any problems identified. These problems include the affects of recreational and commercial traffic, the outfall tunnel and the NfBDS. To the extent that data exists but has yet to be put to use in addressing problems, the sanctuary program could serve as an important vehicle for linking researchers and their results with decision makers and their authorities. Because fish are vital components of the manne ecosystem, at the very least we would encourage NOAA, as pan of its research program for the SBNMS, to monitor the status of local fisheries as weU as the effea these activities may be having on other sanctuary Resources. /^rfvi-^nrv rnmmittee: We endorse NOAA's proposal to establish a -sanctuary advisory comminee" (SAC) to assist interested groups in participaung m the sancniary program for the Stellwagen Bank areas and advise NOAA on a range of issues affecting sancmarv management, education and research. This committee, made up of individuals in suppon of the sanctuary, should be strictly advisory in namre, with NOAA retaining full responsibility for the administration and management of the sanctuarv and its resources. Moreover, a fiiU range of perspectives, e.xpertise, and experience should be represented. Given the high level of interest and suppon this effon has received from the Stellwagen Bank Coalition and its vigorous paniapation in the designation process, we feel that it would be only proper that members of the Coalition which include members of the fishing, academic and research commumties be thoroughly represented on the committee. In addition, given the Center's long history of involvement in this and other sanctuary proposals, we would apprenate the opportunity to participate on the SAC. Other Ts.sues We have identified several inconsistences in the DEIS/NfP. These inconsistencies send an unclear message in several of your recommendations. For example, on page i and 102 of the DEIS/MP NOAA proposes the prohibition of the installation of pipelines and cables within the sanctuary. Yet on page 2 and page 195 and other areas of the document this prohibition is not included. Although NOAA may assume that it is implied in several of the other prohibitions, this is not clear. The Center supports this prohibition and recommends that NOAA clarify its recommendations. In the abstract and page 10 the DEIS/MP states that the principal human activity dependent on the Bank's resources is commercial fishing. According to several studies including information collected from the Stellwagen Bank Conference, whale watching is also a major artivity in the area both monetarily and as a user of the area. This activity also enhances education of the areas resources. 'The Center recommends that whale watching be included in discussions about the principal human activities dependent on the Bank's resources (i.e. page 1). The Center hopes that you will find these comments and suggestions useful. We look to NOAA to be responsive to pubic comment in preparing the final document and recommendations for the SBNMS. Indeed, we look to you to embrace the challenge and the opportunity to provide this truly remarkable region with the long-lasting protection it so richly deserves. Please keep us fully apprised of the status of this proposal. Sincerely, "V^^ Jetuiifer McCann Marine Protected Areas Specialist, Habitat Conservation Program cc Interested Parties 13. Comments noted. Sanctuary research will include topics addressing manage- ment needs, as well as monitoring efforts to determine effects of various human activities on Sanctuary resources and qualities. 14. Comments noted. See PART TWO, Section IV. A. 4. for expanded discussion of Sanctuary Advisory Committee. See also generic response 0. 15. Noted inconsistencies have been corrected at PART TWO, Section III.B.2. and PART FOUR, Section I.B.I. 16. NOAA has revised the FEIS Abstract and PART ONE,F. to reflect the commer- cial importance of whalewatch activities. l725DeSa)esSlreet.NW ttSshingtoa DC 2(X)3o (2021 429-5609 •fe-efax (2021 872-0619 Page G61 Proposed Budget for the SteUwagen Bank National Marine Sanctuary PERSONNEL Sanctuary Manager $ 51,000 Research Coordinator 39,000 Educational Coordinator 39,000 Enforcement Officer 30,000 Enforcement Assistant 20,000 Eoforcement Assistant 20.000 Oerical 20.000 Satellite Coordinator 26.000 Satellite Coordinator 26,000 TOTAL PERSONNEL $271,000 DIRECT COSTS Fadlities and Equipment $ 90.000 Resource Protection (includes vessel) 270,000 Research 100.000 Education 100,000 Manager's Fund 75,000 TOTAL DIRECT COSTS $635,000 TOTAL BUDGET $906,000 Cetacean Research Unit April 5. 1991 Joseph A. Uravltch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Ocean Servlce/NOAA 1825 Connecticut Avenue. N.W.. Suite 714 Washington. D.C. 20235 Comments regarding the Drafl Envlroruiiental Impact Statement/Management Plan DEIS/MP (February 1991) and Proposed Regulations (Federal Register. Volume 58. No. 27. February 8. 1991. pps. 5282-5295). proposed SteUwagen Bank National Marine Sanctuary. Dear Mr. Uravltch. The Cetacean Research Unit (CRtJ). a non-profit research, education, and conservation organization dedicated to the studies of cetaceans and their environment, welcomes this opportunity to comment on the DEIS/MP for the proposed SteUwagen Bank National Marine Sanctuary (SBNMS). Thes'efeinarks expand on our oral comments presented at ■ '^■;>.'^''j-'i^ ::-..'■- -X,'. J-' ■••--.}..--, the pubUc hearings held on March 1 1 and March 12. in Gloucester and Portsmouth respectively. . .•■'."■■% ■^^T^-'C'-'ir.-- ' '•"; CRU has conducted research on cetaceans In New England for the'past 11 years, and our CETACEAN RESEARCH UNIT studies have contributed to a growing body of kriowledge concerning these animals. Our primary study area is the region within a 25 mile radius pYcioucester. MA, which ^ • ^° response necessary. .Includes most of the proposed SBNMS. We strongly support the" establishment of this sanctuary, and thank you and your staff for your efforts to' this end. We agree that the SteUwagen Bank region Is of national sIgnlScancei and wish to see appropriate protection from the many threats, both actual and potential, that could result in harm to this vital " - to (or inclusion in) the SBNMS underscores the need for extensive monitoring of the materials to be deposited to eliminate the threat of harm to the resources of the SBNMS. Alternative #3 encompasses the entire MBDS, and would therefore provide additional protection for the SBNMS, Management considerations also suggest that alternative #3 would be more suitable for the proposed sanctuary. State ocean sanctuaries would abut the SBiVMS if alternative #3 were adopted, and this would provide the opportunity for Joint, comprehensive efforts by local and federal ofEclals. This could be of particular Importance with regard to the Introduction of pollutants Into the SBNMS from land sources. In addition, the larger boundary alternative would recognize the dynamics of the ecosystem, specifically that the significant resources of the region, both physical and biological, are not limited to the bank feature itself, nor are the sources of Influence on the bank. We feel the larger area presented by alternative #3 represents the most appropriate boundaries for protection of the "SteUwagen Bank region". PROHIBITIONS/REGULATIONS CRU Is In support of the following prohibitions as delineated In the DEIS/MP: • dredging. excavaUoa or any other alteration of. or construction on. the seabed within the sanctuary. Elxcluded for this prohibition are temporary alterations to the seabed which result from normal fishing operations • all aspects of exploration for, or extraction of. Industrial materials (e.g.. sand, gravel, clay) from the SBNMS • the removal, alteration, or damage to (or attempt to cause the same) to any historical or cultural resource within the sanctuary • the installation of pipelines or submarine cables within the SBNMS (listed in the DEIS, but not in several other areas including pg. 7 of the prospectus). "There are several other areas where CRU finds the DEIS/MP either unclear or not protecUve enough of the SBNMS. Page G63 f s Discharges/Deposits: One of our greatest concerns Is the Issue of the MBDS. particularly the decision-making process for determining what materials are appropriate for deposition. The DEIS proposes a prohibition on the discharge or deposit of materials from without or outside of the sanctuary (with the exception of normal vessel operations) that would have an adverse effect on the resources of the SBNMS. What is not clear enough is how NOAA, the EPA. the COE. and the MBDS officials will determine what Is "clean". We feel the strictest protocols should be employed when making this determination. This Is particularly Important considering the major projects in Boston Harbor which will Involve major dredging/dumping (scheduled dredging of Boston Harbor, construction of the new harbor tunnel, etc.) in the next decade. The sediments from this region are known to contain slgnliicant concentrations of toxic materials which could represent an equally significant threat to the resources of the bank. Further, permanent designation of the MBDS would result In deposits over the long term and. therefore, the greatest threat could result from the accumulated toxins over time. NOAA should be Involved In all phases of this process to actively Insure that materials deposited are consistent with the goals and purpose of the SBNMS. In addition. NOAA should immediately Institute an aggressive monitoring program to pursue these alms. Current plans for monitoring only extend 200 yards from the dump site. We feel this should be extended to a Tninimum of 1/2 mile. Similarly, the new Massachusetts Bay outfall tunnel will Introduce hundreds of millions of gallons of treated sewage into Mass Bay dally. Studies of the dominant currents prevailing in Mass Bay strongly suggest that these materials will pass through the SBNMS. The Introduction of these organlcs. as well as the dissolved toxins also Involved, could have dramatic effects on the bank. NOAA should coordinate efforts with appropriate agencies In seeking the highest quality e£Quent possible. This should include insistence on at least secondary level treatment of the sewage as soon as possible. Vessel Traffic: CRU concurs with NOAA's recommendation to put corcmerclal traffic under the scope of regulations and to research this type of activity. We feel that recreational trafEc should also be subject to these regulations, and similarly researched. Our data, and the research of several other organizations in the area, demonstrate that an increasing number of whales have been struck by the propeller blades of boats. Based on the size and spacing of the scars, many of these Injuries appear to have been the result of collisions with smaB vessels. In some cases, vessel strikes of whales have resulted In very serious injury, or death. The rapidly growing number of boats registered In state waters (nearly 40.000 registered since 1987). as well as the general Increase In the speeds of boats using the Stellwagen Bank region, could lead to more Incidents of these whale/vessel collisions. In addition, the risk of a collision is increased by the very heavy use of the northern and southern extremities of the bank by sport fishing boats (esp. tuna boats), as well as by whales. Many of these sport boats move Into position at night or In poor light, or at high speeds or both. This only raises the risk of a collision and the severity of the injury. We recommend that NOAA consider Imposing a 'speed limit' within the sanctuary. Discussions among many user groups. Including maritime captains, has resulted in agreement that 18 knots would be an acceptable maximum speed. Presently there are many vessels that routinely travel at 20 - 30 knots in these waters. With regard to commercial shipping traffic, the DEIS notes that this traffic will "be dominated by the movement of petroleum". In light of the significant spills in recent years in U.S. waters, and considering the distinct possibility of an accident In the Stellwagen Bank region at some point, we feel it would be Imperative for sanctuary officials to recognize this possibility and become Invohwd in formalizing an emergency action plan, including the instjollaiion of the necessary equipment in the Immediate area, to respond to such an occurrence within, or adjacent to, the SBNMS. A vessel traffic system, analogous to an Air Traffic Control Tower system, may be worthy of investigation for the purpose of minimizing the risks of collisions In the sanctuary, particularly with the major shipping lane already established there. For example, this tnay be useful In alerting large vessels of the presence of concentrated groups of whales or fishing boats. 3. See PART THREE, Section II. C. See also generic response D.4. l.A. 4. See generic response C.2. 5. See generic responses K.l. and K. T^T B% ^u"^^^°" '^^ PA^T TWO, Secti III. B. 3. The Sanctuary contingency plan will address the issues of f!^f!f?^rP''^P^"'^^==' including installation of necessary equipment at appropriate Ip^^^r^^^ ^ 7. €. Gas and OU Development; We do not understand, nor agree with. NOAA's suggested altemaUve to list these actlviues under the scope of regulaUons. We fed that these activities should be prohibited from the outset 'Hie risk to the biological resources of the bank region does not JustLfy these activities. Although there Is presenUy a moratorium on the development of hydrocarbons in this area until the year 2000. this is a relatively short period of time, and the establishment of the SB^fMS is a plan for the long term. Further, this restriction could be lifted at any time by an act of congress. It therefore seems more appropriate to recognize all of these acUviUes as Inconsistent with the goals of the sanctuary, and prohibit them now, rather than go through the entire process again later. It would also seem that the proposed prohibitions on the use of pipelines and/or construction/alteration on the seabed would preclude many hydrocarbon activities. We urge NOAA to simply prohibit these acUvlUes. Marine Mammals. Reptiles, and Seablrds: We are In full support of NOAA's Intent to protect marine mammals, reptiles, and seablrds within the sanctuary. However, we are not clear on how the protection of non-endangered seablrds would affect normal fishing operaUons. Moreover, reference to e-xlsUng protection under the Migratory Bird Treaty Act should be added to the discussion on pp. 152-153. This act also prohibits exceptions to sanctuary regulation for commercial fisheries" Incidental catches of seablrds listed in the Federal Register notice. Both of the management actions we favor are delineated in Management Option #3. as listed on pp. 133-134 of the DEIS. We favor adoption of this opUon as the preferred alternative. Aquaculture: We do not see the need to place such a structure within the boundaries of the sanctuary. It would present a significant hazard to marine m^mmal.s and reptiles, and possibly seablrds as well. It would also be an additional hazard to navigation, and with the amount of baffle already utilizing the area, establishment of a mariculture facility would make more sense outside of the SBNMS. Other: There have been unconfirmed reports of •fuel tanker lightering- (moving fuel from one vessel to another) within the proposed SBNMS region. Our understanding Is that In general, there Is always some spillage during this type of operaUon. and the possibility exists of an accident, which could cause severe damage to the ecosystem. Boston Harbor Is not considered a very deep harbor, and the construction of a new harbor tunnel will preclude the possibility of that changing with regard to tanker fraiEc. As tankers become larger, and their drafts increase (as has been the general trend), there may be an Increasing "need- to move fuel (or other cargo) from one vessel to another. We would recommend that this activity be prohibited within the sanctuary. [InclneraUon: The possibility has been raised of permitting incineraUon of trash In the U SteUwagen region (page 86). We recommend a prohlbiUon on this acUvity within the SBNMS. 10. //. See generic reponse E. 8. See generic response L. 9. Comment noted. See PART THREE, Section II. B. NOAA intends to have selected a Sanctuary Manager and offic facility by the time of final designa- tion. Remaining Sanctuary staff will b hired shortly thereafter. 10. See generic response G. 11. See generic response F. 12. See generic response H. JSE MANAGEMENT "This entire area Is heavily frequented by tourists. Including many who visit the SteUwagen Baiik area. Sanctuary headquarters should be placed In a locaUon that takes Into consideration the Vide arc of access to the sanctuary", stretching from Cape Ann on the north to Cape Cod on the south. A central locaUon would make the most sense. If there Is to be only one office. However, the concept of -sateUlte offices- (or InformaUon centers) offers many posslblUUes which could greaUy enhance educational programming, contact with the pubUc. and coordination of such efforts with edstlng research. educaUonal. and conservaUon organlzaUons scattered around the perimeter of the bay. We lavor this latter alternative. Page G65 12. We recommend that NOAA adopt a management plan that Includes fuU time research and education coordinators In addition to the sanctuary manager and enforcement officers. If satellite centers are utilized. staiEng for those needs to be added as well. Due to the already considerable responsfbiliUes of the Coast Guard, we feel It Important to have enforcement officers whose responslbillUes are dedicated to the sanctuary program. With regard to research efforts within the sanctuary, we agree that more complete information Is needed on Interactions of marine mammals with vessels. dlstrtbuUon and '-?. density of species, as well as many other areas of import. We also recommend that studies of toxin levels throughout the ecosystem be undertaken to better assess their Impact on sanctuary resources. Fisheries: We are In agreement with the proposal to leave fishery matters In the hands of the New England Fishery Council, as delineated by the Magnuson Fishery and Conservation Management Act. However, for flshertes that are not presenUy covered by any FMP (such as sand lance, or Stlmson clam), we would like to see the sanctuary program specifically empowered to authorize temporary protective or managerlaJ measures untU a management plan Is developed. We also recommend that research acUvitles within the sanchjary Include monitoring programs to help better understand the dynamics of these fish populations with the rest of the ecosystem and the fishing Industries (recreational, sport, and commercial). Emergency Regulations: There Is very little discussion of these In the document. We jvould like to see specifics with regard to time and scope for these In the FEIS. ""Advisory Committee: We concur with NOAA's recommendation for the establishment of a formal advisory committee. This should provide a mechanism for a broad representation of e-xperience. e.^ertlse. and interests to aid the sanctuary office In many areas of decision making. Miscellaneous; A few corrections for the document In the Interest of accuracy: on page 171. we (CRU) should be Included In the list of educational organizations coordination efforts. On page 179. we should be listed under National and Regional Interest Organizations. In that same list, the Gloucester Fisherman's Museum should be deleted, as they went out of business In 1986. In closing, we would like to commend your staff for their efforts In producing this document, and thank you in advance for your careful consideration of these remarks. We look forward to publication of the FEIS/MP. Sincerely. Mark Schilling Cetacean Research Unit P.O. Box 159 • Gloucester MA 01930 • 508 2S1-6351 A Don-proru orEanizalion emphasizing whale research and education li IB 13. See generic response N. 14. Provision for emergency regulations is made in the proposed Designation Document, at Article IV. Section 2, and at proposed 15 CFR § 940.6. See Appendix A. 15. See generic response 0. Page G66 CLF Conservation Law Foundation of New England, Inc. 3 Joy Slreel Boston. Massachusetts 02109-1497 (617) 742 2540 Fax. (617)5ZW019 April 3, 1991 Joseph A. Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Ocean Service National Oceanic and Atmospheric Administration 1825 Connecticut Avenue, NW, suite 714 Washington, D.C. 20235 RE: Federal Register, Vol. 56, No. 27, pp. 5232-5295 1 J. 3. 4 S. c. Dear Mr. Uravitch: The Conservation Law Foundation (CLF) is pleased to have the opportunity to comment on the proposed designation document, proposed regulations, and Draft Environmental Ir.pact Stateme.nt/Management Plan (DEIS/MP) for a National Marine sanctuary at Steilwagen Bank. CLF supports designation of Stellwagen Bank as a National Marine Sanctuary and recommends adoption of the following alternatives for boundaries, management, and regulation. CLF recommends that the boundaries for the sanctuary be selected either as proposed alternative i1 or as "alternative #4" (proposed by regional fishing organizations, but not included in the DEIS/MP; boundary alternative #4 is defined by the latitude and lonaitude coordinates that result in boundaries corresponding to Loran C lines 13750, 13870, 44140, and 44295). The reason for CLF recommending either alternative S3 or alternative S4 is that both alternatives include the Massachusetts Bay Disposal Site (MBDS) within sanctuary boundaries. This inclusion would allow greater sanctuary oversight of disposal of dredged materials at MBDS, which CLF supports. We consider the question of the relative location of MBDS and the sanctuary to be the most pressing issue with regard to sanctuary boundaries. CLF supports a combination of management alternatives S2 and #3. We would like sanctuary staff to include both an education coordinator and a research coordinator, and we would like to see satellite centers established because of the many points of access from land to the sanctuary. However, a phased- in approach to staffing, as proposed in management alternative S2, may well be efficient and cost-effective. CLF supports most of the regulations as proposed and most of the preferred regulatory alternatives in the DEIS/MP, with the following recommended changes. Because of the serious threat of toxic contamination to the marine environment, the exploration, development and lightering (transfer from vessel to vessel) of oil and gas should be completely prohibited within the sanctuary. This prohibition should be added to § 940.5 (h) of the proposed regulations. In addition, the incineration of waste material within the sanctuary should be prohibited. If possible under existing law, an exemption to the prohibition on taking marine reptiles and seabirds in § 940.5 (a) (6) should be allowed for takings that are incidental to normal fishing operations. This exemption would be comparable to the exemptions granted to fishing operations in paragraphs (4) and (5) of § 940.5, which CLF supports. — Section 940.6 on emergency regulations has some serious deficiencies. First, it does not specify who has the authority to issue emergency regulations. NOAA's intent was probably to give that authority to the Director of the Office of Ocean and Coastal Resource Management at NOAA, rather than to the Governor of Massachusetts or the President of the United States, b^t it needs to be specified. It is possible that authority should lie with a more senior position within NOAA or the Department of Commerce than the Director of OCRM. Second, no limit is set on the duration of emergency regulations. A maximum of 90 days, with a single extension for an additional 90 days, as allowed under the Magnuson Fisheries Conservation and Management Act, might be advisable. Third, there is no requirement for public hearings soon after promulgation of emergency regulations; CLF recommends the addition of such a requirement. CONSERVATION LAW FOUNDATION 1. No response necessary. 2. See generic responses B.l. and B.2. In addition, see generic response D.l. 3. Comments noted. NOAA intends that tt Sanctuary be fully staffed as appro- priate to the needs of the site. It is anticipated that one or more satellite offices will be established within a reasonable period of time following establishment of a Sanctuary head- quarters facility. 4. See generic responses E. and H. 5. Under existing authorities (ESA anc MBTA) , any taking of marine reptiles c migratory birds within the Sanctuary : illegal, unless sanctioned by permit issued under those authorities. Exemp- tions under Title III for incidental take of these species during the cour; of normal fishing operations would conflict with existing, valid authorities. 6. The authority to issue emergency regulations under proposed § 94 0.6 is vested in the Director of OCRM. No limit is set on the duration of emergency regulations; NOAA retains discretionary authority to deter- mine the necessity of emergency regulations and their duration. NOAA will take appropriate actions to ensu the public is aware of the need for a emergency regulations imposed in the Sanctuary. p^gg g67 7. Cn the qusEticr. of the regulaticn cf dredged aaterial disposal within sanctuary boundaries, CLF strongly supports the preferred alternative in the DEIS/MP — allowing disposal at MBDS with sanctuary oversight, but prohibiting it elsewhere. CLF believes that there is no unacceptable harm from the open ocean disposal of dredged material that is clean, but dredged material containing persistent, toxic contaminants can present a threat to the marine environment if dispersed in the ocean. The current regulations governing the open ocean disposal of dredged material leave considerable latitude in judging what level of contaminants is acceptable, and CLF believes that it would be beneficial to the Stellwagen Bank region to have oversight by a NOAA office for which the primary concern is protection of marine resources. 7. See generic responses D.l. and D.4. ?- ?. Finally, we recommend that the following three activities be added to the list of activities subject to regulation under Article IV (Scope of Regulations) of the designation document: (1) operation of recreational vessels (2) lightering of hydrocarbon products (oil and gas) (3) incineration of waste materials. I would like to note, in closing, that CLF has no objection to the regulatory revisions proposed by the New England Fishery Management Council pertaining to management authority for activities subject to the Kagnusc.-. Act. Thank you for your consideration of these comments. Sincerely, C-^ia-r^— >^ y^L. Eleanor M. Dorsey Staff scientist 8 . See generi c responses K.I., f. and H. 9. See generic response N. THE GLOUCESTER FISHERMEN'S PROGRAM a branch o/ OiiUrfni Fntrrui oW fijniii\ Sfn-i« SocifO o/ ^^<: S'onh Shore. Inc. Broun's Mall ■ 1S6 Main Sctret Ciouc«ter, Massachusens 019)0 ■ 503-:33-:5O4 April 5, 1991 Joseph A. Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal resource Management National Ocean Service /NOAA 1825 Connecticut Avenue, NW. Suite 714 Washington, D.C. 20235 Dear Mr. Uravitch: Participating in the review of the proposed National Marine Sanctuary status for Stellwagen Bank as a member of the Stellwagen Bank Coalition representing the Gloucester Fishermen's Program has been very inspiring. The Gloucester Fishermen's Program is a program under a social Service agency. It is our duty to assist fishermen and their families during times of crisis in their lives. It is also our responsibility, to help protect their economical wellbing. Economic stability plays an important part in the strengthening of a family live. In upholding our commitment to the fishermen and their families we must take issue with the proposed designation for Stellwagen Bank as a National Marine Sanctuary. The Gloucester Fishermen's Program endorses the designation of Stellwagen Bank as a National Marine Sanctuary. Enclosed is a summery of our recommendations to be considered in the regulations. We are very pleased to have been given the opportunity to work very close with Ms. Sherrad Foster and Mr. Thomas Bickfor of your agency and Mr. Brad Barr of the Massachusetts Coastal Zone Management office. We feel that with the proper guide lines the designation of Stellwagen Bank as a National Marine Sanctuary is going to benefit the weellbeing of our fishermen and their families. Sincerely yours, Page G68 Angela Sanfilippo ' X' Program Coordinator '-7\ ^UuoiU'i "PuAmmtM-'i IVlMi /fiiaetaf/M April 5, 1991 3 Beauport Ave, Gloucester, MA 01930 Joseph A. Dravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Ocean Service/NOAA 1825 Connecticut Avenue, hfW. Suite 714 Washington, D.C. 20235 Dear Kr . Dravitch: The last yea experience in par proposed designat Marine Sanctuary. We vant to e contact that Ms. r agency and Mr . Management office proposed designat It is with m Sanctuary designa inform you of our The Gloucest on March 25, 1991 r and a half have been a great educational ticipating in the review process of the ion of Stellwagen Bank as a National xpress our appreciation for the constant Sherrad Foster, Mr. Thomas Bickford of you Brad Barr of the Mass. Coastal Zone ,kept wit us during the process of this ion. uch knowledge of what a National Marine tion for Stellwagen Bank means that we position. er Fishermen's Wives Association Inc. voted to support the proposed designation. Enclose you will find recommendations which we want to see implemented in the final designation. We are committed to support the designation of Stellwagen Bank as a National Marine Sanctuary if and only the intention is to protect the area from activities (Excluding commercial and sport fishing activities) that can cause environmental destruction and Commercial and Sport fishing is allowed without the interference of the Sanctuary Managers. Sincerely Yours, Angela Sanfilippo, Pres. COMMENTS TO THE DRAFT E.I.S. MANAGEMENT PLAN TO DESIGNATE STELLWAGEN BANK A NATIONAL MARINE SANCTUARY. GLOUCESTER FISHERMEN'S PROGRAM GLOUCESTER FISHERMEN'S WIVES ASSOCIATION 1. 1. We support the comments recommended by the New England Fisheries Management Council in regard to fisheries management for Stellwagen Bank designation as National Marine Sanctuary. 1. See expanded discussion at PART THREE, Section II.C.14. Also see generic response N. NOAA does propose any Sanctuary regulation of fishing activities; nor does NOAA propose to list fishing as an activity "subject to Sanctuary regulation." In the event of any future identified need to consider additional regulation of fishing activities, the New England Fishery Management Council will continue to exercise its mandates under the FCMA; and NMFS will continue to implement any FMP or fishing regulation developed via the Council. NOAA intends to work closely with both the NEFMC and NMFS to assist with the attainment of fisheries management objectives within the Sanctuary. Page G69 2. We support the "Commercial Fishermen's Boundary Line" which is Alternative 4. Loran C. coordinates are 13750, 13870, 44140, 44295. 3. Any boundary for the Sanctuary must include the Mass Bay Disposal Site to receive our full support for final designation. 2. See generic responses B.l. and-"B.2. "[_ mus r5| 4. All ocean disposal, including industrial fish wastes, -' -jst be prohibited within the Sanctuary. 4. S ■5. Any existing permits for Aquaculture operation within the Sanctuary must be phased out and practice prohibited. We feel that a National Marine Sanctuary should be for the benefit of all; no privatization of the Sanctuary's resources should be allowed. 6. Offshore hydrocarbon exploitation must be prohi Tl . All vessels, commerci (^.allowed to exceed a 15-lcno |_Sanctuary . [s. Lightering, the trans /■j_ship to ship, must be proh oTs. Offshore incineration |_Sanctuary . and mineral exploration and bited within the Sanctuary. al and recreational , must not be t speed limit within the fer of hydrocarbon products from ibited within the Sanctuary. nust be prohibited withing the 10. All tankers must repo Sanctuary and must give thi will remain in the Sanctua accessible to the commerci radio station set up by Ma rt their intention to enter the e approximate length of time they ry. This information must be al and recreational fleets over a ssport . /Q "11. Sanctuary research and educational programs must not interfere, disrupt, or halt any commercial or recreational activities . 12. The Sanctuary designation must be fully funded at the time of implementation. 13. One Sanctuary office must be located on the North Shore and the other on Cape Cod. 114. A Sanctuary Advisory Committ appointed advisors must be fisher fisherman currently fishing. ee must be created. The ries representative and /or He look forward to your acceptance of these recommendations . 3. NOAA proposes to prohibit disposal of all substances and materials, including fish processing wastes, within the Sanctuary. Exceptions to this prohibi- tion are noted at proposed 15 CFR § 940.5(a) (see Appendix A). 4. See generic response G. 5. See generic response E. 6. See generic responses K.l. and K.2. 7. See generic response F. 8. See generic response H. 9. NOAA does not intend to require prior notification by commercial tankers, or by any vessel, of intent to enter Sanctuary waters and to indicate in- tended length of time within Sanctuary boundaries. While the primary objective of Sanctuary management is resource protection, multiple uses compatible with that objective are encouraged in Sanctuaries. Part of Sanctuary manage- ment, however, will encompass monitoring of vessel activities, to ensure that compatibility is maintained. NOAA will coordinate with existing authorities and interests, such as Massport, in these management efforts. 10. Existing uses of Sanctuary waters, such as commercial and recreational uses, will not be precluded by Sanctuary designation, or by subsequent Sanctuary research and/or educational programs. In the event of an emergency situation threatening Sanctuary resources and/or qualities, or human safety, NOAA may determine the need to close off areas of the Sanctuary for limited periods of time. 11. The level of Federal funding avail- able to the proposed Sanctuary is depen- dent upon Congressional appropriations to the National Marine Sanctuary Pro- gram. It is NOAA's intention that the Sanctuary be adequately funded at the time of designation. 12. Comments noted. NOAA has selected Plymouth as the location for the Sanctuary headquarters facility. One or more "satellite" offices are also con- templated following establishment and staffing of the headquarters. At the time of final designation, NOAA intends that a Sanctuary Manager will have been hired, and a Sanctuary headquarters facility identified. 13. See generic response 0. Page G70 INTERNATIONAL WILDUFE COALITION April 3, 1991 Mr. Joseph Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Oceanic and Atmospheric Association 1825 Connecticut Avenue, NW, Suite 714 Washington, D.C. 20235 Dear Mr. Uravitch, On behalf of the International Wildlife Coalition, representing a membership of 235,000, I would like to offer the following comments pertaining to the Stellwagen Bank National Marine Sanctuary Draft Environmental Impact Statement/Management Plan. Stellwagen Bank exceeds all criteria established by NCAA as an area of special significance and is deserving of National Marine Sanctuary designation. The area is the basis for a rich commercial fishing industry which is important^ culturally, historically and economically. Protection offered by the Sanctuary will ensure that the area s fishing heritage will flourish for generations to come. Stellwagen Bank is also a high use, perhaps critical area for many species of marine mammals, including endangered species such as right, fin and humpback whales. Despite its ecological and economic importance, the Bank is threatened by many current and proposed activities. We believe that many of the regulations proposed by NCAA in its Draft Environmental Impact Statement for Stellwagen Bank offer excellent protection for the Bank and its resources. Specifically, we would like to support NCAA's prohibitions on alteration of or construction on the seabed industrial materials development installation of pipelines and cables the taking of marine reptiles, mammals and seabirds the disposal of dredged materials 1) 2) 3) 4) 5) J. We would particularly like to support NCAA's decision to impose no separate Sanctuary restrictions on commercial fishing activities. However, there are also several areas in which we believe that the Sanctuary regulations preferred by NCAA are insufficient to protect the Bank and its resources. INTERNATIONAL WILDLIFE COALITION 1. No response necessary. 2. See generic response N. 3. 1) The boundary for the proposed sanctuary. We support the adoption of option #3 for the Sanctuary boundary. As boundary #2 is contained wholly within boundary #3, all benefits of the second option also apply to our preferred boundary. There are however, important benefits provided by boundary |3 which are not inherent to boundary »2. NOAA's preferred boundary (#2) fails to take advantage of the potential for an ecosystems approach to management. The boundary of option |3 would form a nearly contiguous link with existing waters protected by the state of Massachusetts. This would provide the type of comprehensive protection and management which is the strength of the Sanctuary program. We also believe that NOAA's preferred option (boundary #2) has serious drawbacks associated with the Massachusetts Bay Disposal Site (MBDS) . In an effort to move the MBDS outside of Sanctuary waters, the Envirnmental Protection Agency (EPA) has proposed to shift the location of the site to overlie the existing Industrial Waste Site (IWS) and its 1,000's of barrels of radioactive and toxic waste. The original EPA decision to separate the two dump sites was made to allow for the monitoring of the IWS and the possible taking of remedial action at a future date. Placing the MBDS on top of the IWS would make these actions impossible. 3. See generic responses B.l. and D.l. Page G71 r £ Our preferred option, boundary #3, would not necessitate the moving of the MBDS, because both the MBDS and the IWS are located within this boundary. This would allow monitoring of the IWS and make future remedial action possible. It would also provide the Sanctuary manager with a voice concerning the type, quantity and quality of material to be disposed of at the MBDS, a feature which we consider to be beneficial and extremely important. 2) The Massachusetts Bay Disposal Site. The relationship between the MBDS and the Sanctuary is difficult and problematic. As stated above, we believe that the MBDS should be located within the boundary of the Stellwagen Bank National Marine Sanctuary. This would allow the Sanctuary manager and staff to monitor the type, quantity and quality of the disposal material. At a minimum, any materials disposed of at the MBDS (wether its location is within or outside of Sanctuary boundaries) should meet the most recent and stringent EPA ocean dumping guidelines. Proper monitoring procedures, as determined by the Sanctuary manager and advisory committee should be inplemented to insure that such activities do not harm Sanctuary resources. If the MBDS is located outside of the Sanctuary, the Sanctuary manager should be involved in all decisions pertaining to the use of the site. 3) The operation of recreational vessels in Sanctuary waters. We recommend that recreational vessels operating in Sanctuary waters be subject to regulation. Data collected by the Center for Coastal Studies strongly suggests that increasing numbers of right, humpback and fin whales are being struck by recreational vessels and that these vessels can and do pose a risk to the well being of these endangered species. Regulations pertaining to maximum speed (we suggest an 18 knot maximum) and high speed, "jackrabbit" starts would add important protection to marine mammals and reptiles in Sanctuary waters. It would also safeguard human users of the Sanctuary. "4) Offshore hydrocarbon activities. We would also strongly encourage NCAA to prohibit offshore hydrocarbon activities within the sanctuary and that the process of transferring hydrocarbon products from one ship to another (lightering) be prohibited. These activities can have only negative impacts on sanctuary resources and are not consistent with needed protection. 5) Aquaculture activities. The IWC and its membership believe that aquaculture is not an activity compatible with sanctuary designation. Aquaculture activities not only threaten marine mammals, seabirds and marine reptiles with entanglement, but also represent an exclusive use of Sanctuary resources which would significantly impact traditional forms of commercial fishing. Aquaculture containment structures also represent a significant hazard to navigation. 6) The removal of sunken vessels. He recommend that the section requiring boat owners to be responsible for the removal of sunken vessels be amended to state that boat owners convicted of willfully disposing of their vessels in Sanctuary waters be responsible for the removal of such vessels. 4. See generic response K.l. 5. See generic response E. 6. See generic response G. 7. Proposed Sanctuary regulations do not specifically require vessel owners to assume responsibility for the removal of such vessels which sink within the Sanctuary. ^. 7) Sanctuary Advisory Committee. We recommend that the Sanctuary management plan include the formation of an advisory committee. This committee will act to provide the Sanctuary manager with information and insight to be used in the decision making process 8) Staffing and program support. The International Wildlife Coalition supports full and immediate staffing of the Stellwagen Bank Marine Sanctuary office. We believe that such staffing should include a Sanctuary manager, research director, education director and enforcement personnel. The effective operation of this staff will directly depend upon the financial support provided to the Sanctuary. We support maximum funding for enforcement, education, research and monitoring programs. Ke suggest a primary site be located in the town of Plymouth, Massachusetts because of its central location in relation to the Sanctuary and neighboring population centers, established reputation as a tourism center with whale watching and a whale museum and the availability of inexpensive on or near water of fice\visitor facilities. Ke also support the creation of "satellite" information centers in the towns of Gloucester and Provincetown. 8. See generic response O. 9. It is NOAA's intention that the Sanctuary be fully funded at the time of designation. At the time of final desig- nation, NOAA intends that a Sanctuary Manager will have been hired, and that a Sanctuary headquarters facility will be located in Plymouth, MA. Page G72 Thank you for the opportunity to comnent. If you have any questions pertaining to these comments please feel free to contact our office. Sincerely, David Wiley Project Director International Wildlife Coalition 634 Mor.h Falmouth Highway. P^O Box 388 ho.th Falmouth. ^l'=="':f'"""= °2",^„°^,^® 508-554.9980 Fax 508-563-2843 A 1 Massachusetts Audubon Society South Great Road Lincoln, Massachusetts 01773 (617) 259-9500 29 March 1991 Mr. Joseph Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource ManagemenC National Oceanographic & Atmospheric Administration 1825 Connecticut Ave. NW Suite 714 Washington, DC 20235 RE: Draft Environmental Impact Statement/Management Plan for the proposed SCellwagen Bank National Marine Sanctuary (Federal Register, Vol. 58, No. 27, February 8, 1991). Dear Mr. Dravitch, Massachusetts Audubon Society, a statewide environmental organization representing 49,000 Massachusetts households, strongly supports NOAA's recommendation to designate Stellwagen Bank as a National Marine Sanctuary. Stellwagen Bank and its associated ecosystem are deserving of the national recognition and protection afforded through the landmark National Marine Sanctuary Program. Massachusetts Audubon strongly supports many of the recommendations contained in the Draft Environmental Impact Statement /Management Plan (DEIS/MP) . Of particular interest are those recommendations intended to maintain the ecological integrity and biodiversity of Stellwagen Bank. The Society applauds the five prohibitive activities cited in the draft which include dredging, excavation of industrial material, installation of pipelines, alteration of any historical resource and the re-tioval of threatened marine organisms (i.e. turtles). The Society commends NCAA for their efforts in preparing the DEIS/MP. It is a well-prepared and thorough document. However, the Society wishes to express its reservations regarding the following elements within the DEIS/MP and submits the following recommendations for NOAA's consideration: Sanctuary Boundary - Massachusetts Audubon supports Alternative « 3 as the preferred boundary delineation for the Sanctuary as opposed to NOAA's preferred alternative. Alternative # 3 will provide for a more complete protective management plan by linking with state water boundaries. The physical, chemical and biological components of the Stellwagen Bank ecosystem are closely linked to the surrounding waters of Massachusetts bays and the Atlantic Ocean, and thereby should be included within the protective sanctuary boundaries to provide for a more comprehensive environmental management plan. Alternative # 3 encompasses Tillie's Bank and Jeffrey's Ledge which play an important role for marine mammals and fin fish who visit Massachusetts bays. Both areas serve as feeding and spawning grounds, respectively. MASSACHUSETTS AUDUBON SOCIETY 1. No response necessary. 2. See generic responses B.l. and D.l. Page G73 3. 5 C. The Massachusetts Bay Disposal Site (MBDS) lies within Alternative # 3's boundary lines. The threats posed by prior disposal activities and future projects nnjst seriously be examined by leading federal and state environmental agencies. Efforts must be made to ensure that Stellwagen Bank's ecological integrity is protected from adverse activities not only from within the sanctuary boundaries but also from outside sources. Therefore by including the MBDS as proposed in Alternative 3, there will be a guarantee of greater awareness and careful screening for future disposal efforts. MBDS's close proximity to the banJc may ultimately pose significant threats to the health of Stellwagen Bank's biological communities. Only, uncontaminated and biologically non-threatening material should be considered for disposal at the MBDS. An adequate monitoring program should be developed to monitor post-disposal effects. Vessel traffic - Efforts must be considered which will monitor the effects of vessel traffic throughout the sanctuary. Of greater concern is the risk of accidental collisions or vessel emergencies which may ultimately pose threats to Stellwagen Bank. Legislative initiatives have been adopted within other states (i.e. Alaska and Rhode Island) to expand a satellite monitoring system (e g. Global Positioning System). The programs are designee to track commercial vessels transporting hazardous cargoes, thereby preventing possible vessel collisions or groundings. NOAA should examine and consider these programs in an effort to protect Stellwagen Bank and the other marine sanctuary sites. To protect the sanctuary a contingency plan needs to be included in the EIS/MP to address vessel emergencies (e.g. oil spills). The contingency plan should provide a framework and guidelines for a quick and effective response. Hydrocarbon exploration, drilling and transfer - Stellwagen Bank lies within the North Atlantic Planning Area of the Atlantic OCS Region. Leases for exploration have been considered for this region. Even though a Presidential order canceling the lease sales has been in place since June 1990, Massachusetts Audubon recommends that the EIS/MP include a prohibition of any activity which will increase the probability of hydrocarbon contamination. Therefore, all hydrocarbon exploration, drilling or fuel transfer (i.e. lightering) should be prohibited within the sanctuary. Ocean Waste Incineration and Diacbarge - There is significant evidence available to show that ocean incineration and discharge of wastewater/sludge pose significant threats to marine systems. Massachusetts Audubon strongly recommends that all waste discharges and incineration ventures be prohibited within the sanctuary. In addition, research must be expanded to evaluate and monitor the cumulative impacts of current and future wastewater discharges and their long term impact on Stellwagen Bank. As reported in the DEIS/MP, steps are being taken by Massachusetts communities to lengthen wastewater outfalls and increase discharge volumes to Massachusetts bays (e.g. Gloucester, South Essex Sewer District, Plymouth and MWRA) . These along with future proposals must be carefully examined in a comprehensive manner. Management Alternative - Massachusetts Audubon strongly favors management alternative # 3 as a method for implementing the sanctuary management plan. The implementation of an effective public information program will enhance the EIS/MP goals and objectives, in addition to establishing a strong constituency who will work to support the long term efforts of the Marine Sanctuary program. The 'satellite center' concept is an ideal method for disseminating sanctuary information to the public. Massachusetts Audubon strongly supports NOAA efforts to provide the necessary protection to insure that Stellwagen Bank's ecological integrity is preserved for the future. We appreciate the opportunity to respond and we hope that the Society's comments and recommendations are useful in completing the final EIS/MP. Thank you for your careful consideration. 3. See generic response K.2. 4. See discussion at PART TWO, Section III.B.3. The Sanctuary contingency plan will address the issues of emergency preparedness, including installation of necessary equipment at appropriate locations. Additionally, the Sanctuary contingency plan will be coordinated with the existing National Contingency Plan, to further ensure mechanisms for quick and effective response to emergency situations. 5. See generic response E. 6. See generic response H. 7. Comments noted. See PART THREE, Section II. B. NOAA intends that a Sanctuary Manager and office facility will have been selected by the time of final designation. Remaining Sanctuary staff should be hired shortly thereafter. Sincerely, jerard A. Bertrand President Page G74 Massachusetts Wildlile Federation The Slate Affiliate of National Wildlife Federation 71 Cliff Road Uiellesley Hills, MR 02181 10 Maixh 1991 1 c2 Joseph fl. Urauitch, Chief Sanctuaries and Reserues Diuision Office of Ocean and Coastal Resource Management National Ocean Serulce/NOflfl 1825 Connecticut fluenue, NU), Suite 714 lUashington, DC 20235 Subject:Stellujagen Bank National Marine Sanctuary/ Draft EIS/MgtPlan Dear Mr. Urauitch: The Massachusetts lUildlife Federation, Inc., the state affiliate of National Ulildlife Federation, heartily endorses the concept of The Stelliuagen Bank National Marine Sanctuary. Homeuer, we offer the comments beloo* on the subject Draft EIS/MP dated January 1991. Discrepancies eHist betuieen the Prohibited/Subject-to-Regulation flctiuities on p2 (EHecutiue Summary), plQ2-103 (Draft Mgt plan), pl85 (Designation Document), and pl94-l95 (Proposed Amendment to 15 CFR Chapter IH). Since the Rmendment to 15 CFR mill be the end result of the sanctuary designation process, I will comment only upon that document. § 940.2 Boundaries In place of NORR preferred altematiue #2 described on page 129-130, MUJF recommends that the Sanctuary be defined by Loran C Coordinates 13750, 13870, 44140, 44295 and their Latitude/Longitude equiualents. These coordinates outline an area just slightly larger than the NORR preferred one, but has the aduantage that all of the Mass Bag Disposal Site mould be in the sanctuary and hence subject to direct sanctuary control. The Loran Coordinates mould allom any uessel to easily deter- mine the sanctuary boundaries. ( See attached sketch.) "flithough the Draft EIS/MP(pl86) states that Management of the Fisheries mithin the sanctuary remain the prouince of the NEFMC, the proposed amended §940 does not address this Issue. Therefore, me rec- ommend thot a section be included in §940 to state: Fishing RegulatJons, licenses and PermHs. Fishing in the Sanctuary, in- cluding fishing for shellfish and inuertebrates, shall not be regulated as part of the Sanctuary management regime authorized by the Ret. Homeuer, fishing In the Sanctuary mag be regulated other than under the Ret by Federal and Stole authorities of competent Jurisdiction, and designation of the Sanctuary shall haue no effect on any regulation, permit or license issued thereunder.e.g. regulations implementing Fishery Management Plans promulgated under the Magnuson Fishery Conseruation and Management Ret, 16 U.S.C. 1801 et seg. MASSACHUSETTS WILDLIFE FEDERATION 1. No response necessary. 2. See generic responses B.l. and B. 3. See generic response N. Page G75 § 940.5 Prohibited Hctiuities This section should be eKpanded to add the folloiuing: (7) The installation of pipelines and cables luithin the Sanctuary Is pro- hibited to eliminate the possibility of damage to Sanctuary resources both during construction and as a result of potential pipeline leaks. ^8). flquaculture actiuities luithin the Sanctuary are prohibited. (TUe J prime habitat for a mild fishery should not be displaced by a domesti- cated fishery.) (9). Hydrocarbon (oil and gas) eKploration, production and lightering (transfer of hydrocarbon products from ship-to-ship) are prohibited in the Sonctuary area. jTlO). nt-»eo-incinerotion of luoste moteriol is prohibited in the '• [sanctuary area. § 940.H R section should be added entitled Hctiuities Subject to Regulation. (t).Operatlon of all uessels, commercial, recreational, and research shall be subject to possible regulation when ujithin the Sanctuary. § 94a.>iH fl section should be added to formalize the Sanctuary Rduisory Committee. (1). n Sanctuary Rduisory Committee luill be establlshedto assist inter- ested groups In participating In the day-to-day management of the Sanctuary. Meetings to be held on a scheduled basis will be open to the public. MIUF Inc. appreciates the opportunity to comment on the subject Draft EIS/MP. If additional clariricatlon of our position is required please contact the writer. 4. NOAA believes its proposed regulation regarding the installation of pipelines or cables within Sanctuary boundaries adequately addresses NOAA's intention to protect the Sanctuary's seabed. See generic response J. 5. See generic response G. 6. See generic responses E. and F. 7. See generic response H. 8. See generic responses K.l. and K.2. 9. See generic response 0.2. See also expanded discussion of the Sanctuary Advisory Committee at PART TWO, Section IV. A. 4. /\o^JUi^ Sincerely; Kemp Maples Chairman, Marine and Coastal Issues (617)235-6926 AlTlttNATIVE 4 (NOTPEBENTDfTm DEIS/MP) • mrampisso ippron- ouitly 35! Sim cats to fiolilaie tiu ttteiufiauon o( ihe SincTuary twundane by Tesels usng clu uc • iniulo clLTt MDSS I- ."^ J'-. vjii'Oi urn Page G76 April 6, Ij"'': S.r. Off .Toseph Uravitch. Cheit j .-(.uarles and Reserves Division , ice of ocean and Coastal Resource Managexent U-.nal oceanic and Atmospheric AtJtnirvlstration -; Connecticut Avenue NW, Suite 714 ■ Ington, D.C. 20235 ■ j r; ',1 r Mr. Uravitch, ! or we find the descriptions of -fishrng S^^" ^--ft^^^^,' IK. DEI3/MP for the proposed StelWagen Ban< oa..ctuar> AS promised, ve have rewritten "tne^ and propose th* 1-uing as a substitute. . ' , "''-'- 'ott.^ Trawl - Conic,! net towed alon, the s-- " conical 'net used In conjunct Scottish Seine - ..w,..*. ':'^ ■ ^i„ ^, with long-T^s used to herd fish into the r,- along the seabed ; . Puxse Se^ - An encircling net^u.e. tomcat- , ; 0 b,= \o:< c ■•■ 1. a i i c 3 D. Scallop Dredge - Metal framea - harvest shellfish on the , seabed E. Clam Dredge - Met.-,! .fra.^ed device us = . to he shellfish under the seabed "'"Vhoo. and Line - Hand hel^ gear usei for tot. fish or tuna i i - j „ , i Tub Tra-.ns - Multiple hooks attatcned on a ) line used for groundf ish ; Fish Traps - Stationary devices usea .or ha. groundfish , \ ^ i ..-a fr^,- £obster Trans - Stationar'y devices us^d for harvesting lobsters and drabs Sink Gillnets - Stationary nets ano-.ored on ilJbed used for harvestirig grcundfisa Harpoo:-.s - used priniariiy on bluefin tuna • '-••irg 3. ,i•^G REGULATIO."JS - The New England Fishery ^'^"^3e^.Gnt C must have control over fishing rdgula t ions vi .hin t. ■• sanctuary. As the draft isV^^itten now, tne sanctu.-.r the final say. Ke support the regulatory language 5- by the NEFMC in their publld comrJGnt. ; . ••„M, ADVISORY COMMITTEE - We want a;forr.al C0T:nct>on, r^Sa^dless °: when issVeS^onflKts with a Sanctuary regulation, the regulator, "^^^^ P'°"«'-- °< ^e Sanctuar^ resources and quaUties shall govern" (Fed^Reg. V°l . 5o, No^T^P. S^S) Such language contradicts not only the intent of the regulanon descnbed m t-.e Tremble but addirionally may be inconsistent with the Magnuson Fishery Srva'tion and Management Act of 1976 (Magnuson Act) which P;°vides the exc^ive authority for regulating fishing activities in the exclusive economic zone. The Council strongly urges the follo.ving language as an alternative m order to fulfill the intent of thVproposed rule. Our support or S-^uary des.gnanon is contingent upon redesignating paragraphs §§ 5f'-=<^^^<^l^„| ,f,°-; Jer skble respectively and adding the following subparagraph as § 940.:)(e) o^ °''^^J^t""° Sage L gives regional management Councils the opportunity to develop sanctuary-related regulations that affect fishing activities: The prohibitions in paragraph (a) of this section do not apply to any S authorized bv or subject to a vaUd lease, pemut. hcense approv^, riehT relation or other authorization promulgated or issued under the Soritfof the Magnuson Fishery and Conservaaon Act Ovlagnu^on Act), 16 U.S. C. § 1801 et Sq., or any activity subject to the authority of the Magnuson Act. ™ e^ftion^fishinlacdvities necessary to protect the proposed Sanctuary to the regional management Councils and the Magnuson Act process. The Council further recommends that § 940.6, pertaining to emergency reeulations should also be amended to include the sentence: For any such Sbdo^'related to fishing activities, subject to *e authority of the Magnuson A«. s^chemereencv regulations shall be effective for 45 days, after which une _ wfcurencevSih 1^ New England Fishery Managem_ent Counal shall be required to extend such emergency regulations beyond 45 days . Although it is not contained in the proposed rule, the Council wishes to support the Sanctuary boundaries recommended by New England fishermen and otherwise refen^d to^Boundary Alternative 4. The Loran C Unes are 13750, 138.0, 44140 and 44295 We recognize the potential difficulties in using Loran in regulatory language, th;refore as an^temative we suggest equivalent Latitude/Longitude coordinates. «• 34 4'N 70° 25.VW; 42° 11.2'N, 70° 06.3^; 42° 06.6'N, 70° 22SVJ; and 42° 28.4 N 70° 40 O'W. Most importantly, this boundary includes the Mass Bay Disposal Site and will allow closer monitoring, regulaHon and possible remediation of an area that could pose significant threats to fish habitat. ~ The Council is also fully supportive of a formal advisory Committee. As stated in pre^oi^ correspondence, con^erdal and recreational fishing '"'""'^^f ""^"^ ^ represented and at least one member of the New England Counal should be included on the Committee. ' A number of fishermen's organizations have pointed out that descriptions of the fishlnes^ some gear types afe out of date and inaccurate. We -^Sf. y° "/l^lf.f with knowledgeabll people within the fishing industry to update this mformation rJice Ae Environmental Impact Statement/Management Plan wm form the basis for future education programs and outreach efforts, should a Sanctuary be designated. KEW ENGLAND FISHERY MANAGEMENT COUNCIL 1 NOAA recognizes the existing mandate and authority of NMFS and the NEFMC to promulgate fishing management plans, including regulations, pursuant to the FCMA. Designation of the Stellwagen Bank National Marine Sanctuary will not alter that mandate and authority. The fish resources of the Stellwagen Bank system have been recognized as a resource of national significance, within the context of Title III. NOAA is therefore concerned that fish resources are main- tained within the Sanctuary, as an integral part of its mandate under Title III. NOAA has determined during the designation process, however, that the existing structure for the management of fishery resources is adequate. NOAA is also aware that current FMPs are not fully meeting their objective of stock maintenance. However, NOAA does not propose to regulate fishing activities; nor does it propose to list fishing as an activity "stibject to Sanctuary regulation." See expanded discussion at PART THREE, Section II.C.14. 2. NOAA does not agree with NEFMC 's recommendation to limit Sanctuary emergency regulations affecting fishing activities to 45 days, following which any extension to emergency regulations would be dependent upon concurrence by the NEFMC. The duration of any Sanctuary emergency regulation is determined by the Director of OCRM, as part of his or her responsibilities under Title III. However, the development, implemen- tation, and duration of any emergency Sanctuary regulation affecting fishing activities would be closely coordinated with the NEFMC and NMFS. NOAA antici- pates that the NEFMC would be directly involved in determining the necessity for any such regulation. 3. See generic responses B.l. and B.2. See also generic responses D.l- and D.4. 4. See generic response O, 5. NOAA has incorporated improved infor- mation regarding specific fishing gear utilized in the Stellwagen Bank region. Page G81 L 7. ^. ■ As currently listed under prohibited activities, § 940.S (1) iii, bilge pumping would not be allowed. We have been informed that there is now an awareness within the Sanctuaries and Reserves DivUion of the potential problems with this provision. The Coundl recommends deletion of the section since prohibitions on discnargmg from vessels already exist under MARPOL. With regard to other dumping activides, the Council supports prohibitions on ocean dumping (except as allowed within the Mass Bay Disposal Site and accomplished with Sanctuary approval), sewer outfalls and other discharges that adverseW affect fisheries habitaB and resources within the sanctuary. Vessds may be Sated with respect to discharges or deposits within the sanctuary, but the Council has endorsed specific vessel exemptions contained in other sanctuary management plans; those plans referenced "fish, fish parts or chumming materials, water Cding cooling water), and other biodegradable effluents madental to vessel use in the sanctuary generated by marine sanitation devices; routine vessel maintenance; engine exhaust or meals on board"; ' As stated in earlier comments to your office, we support the prohibiHons as proposed on sand, gravel and mineral mining, pipelines and cables, fb->. David N. Viley inrerr.ational Wildlife Coalition Members of The St-gllwaoen Bank Coalition as of 4/91 ORGANIZATIONS Cetacean Research Unit * Center for Marine Conservation * Center for Coastal Studies * International Wildlife Coalition * Massachusetts Wildlife Federation » University of Massachusetts, Boston * Stellwagen Bank Commercial Fisheries Cooperative New England Aquarium * Northeast Charterboat Captain's Assoc. * Capt. John Boats, Inc. * Gloucester Fishermans Program* Mass. Audubon Society Manomet Bird Observatory Cetacean Society International American Littoral Society Fishermen's Wives Association The Coastlines Project New England Whalewatch, Inc. National Aquarium in Baltimore Whale and Dolphin Conservation Society Save our Harbor/Save our Bay Mass Bay Consortium MIT Sea Grant College Program Compact of the C.C. Conservation Trusts, Inc. City of Boston, The Environment Department Assoc, for the Preservation of Cape Cod, Inc. Woods Hole Oceanographic Institution, Coastal Research Center Delaware Nature Society Salt Water Sportsman Capt. Tim Brady and Sons, Inc. Cape Outdoor Discovery New England Wildlife Center Atlantic Cetacean Research Center CONT. ACTS M. Schilling J. McCann K. Steuer D. Morast K. Maples R. Delaney ' J. Anderson A. Goldowsky C. Jones S. Travares A. Sanf ilippo P. Brady F. V onKrustiern R. Barstow D. Bourne W. Sargent S. Mercer Ml Nichols J. Perkins B. Erland J. Kaufman M. Arbor M. Robinson B. Glascock D. Van Luven B. Tripp L. Fleming R. Cunningham T. Brady D. Dyer R. Horton S. Frohock Page G87 Tiverton Garden Club Mingan Island Cetacean Society The World Society for the Protection of Animals SWIM Boston Shipping Association Sierra Club (New England Chapter) League of Woman Voters (N.E. Chapter) Waquoit Bay National Estuarine Research Reserve The New England Wildlife Center Plymouth Marine Mammal Research Center International Fund for Animal Welfare Gloucester Inshore fisheries Assoc. Cape Cod Museum of Natural History A.C.E. (Acting to Comserve Earth) Barnstable Conservation Foundation Marine Mammal Conservation Program Blue Water Pursuits Scuba Club Southampton Elementary School New England Hebrew Academy Hull Public Schools Regis College Earth Club Cape Cod Aquarium-Atlantic Education Center Cape Cod National Sea Shore Massachusetts Bays Program South Shore National Science Center Aquaculture and Bio-Marine Resources-AVA Peabody Muesum Outdoor Environmental Education Center M. Larson J. Wil liamson J. Walsh P. Bradley B. Calder B. Fegan B. Fegan C. Gault R. Horton D. Wiley A. Roell J. Testaverde M. Bell K. Homola J. Barton J. Rioux A. Eraser C. Chase J. Helman R. Burwood E. 0 ' Connor I. McMi 1 1 an D. Manski M. Liebman B. Easterday R. Hawes R. Moer R. Abrams INDIVIDUALS Rsp. Daniel Bosley Ames Colt, (U.Mass) Lindsay Henry Mary Sather, Allison Blake (Cape Cod Times) Elin Carey Jessica Langsam Mimi Kugler Christina Anderson Alice Cutwater Susan Kaufman Michael Moore Peg Collins (Pollard Middle School) Sally McCann Liz Kaplan Scott Jones Gi Gi Greenlees John Moore (MIT Marine Industry Collequium) Mary Wheeler (Dept. of Environ Quality Engineering) Eleanor MacLellan Leo Axtin, Jr. (N.K. Seacoast Cruiese, Inc. John Barlow (Maine Maritime Academy) John Lope: (National Park Service) Margie Scanlon Bob Bowman Joan Hawley Gerald K. Barros Cameron Sanders Janelle Dietrich Lisa Laurencot Sonja Boynton Linda Holland (Nantucket Land Council) Michelle Brandt Capt. Alan Circeo (A.C Cruise Line Inc.) Mrs. Clifford McAleenan Edith Emery-Addor Marge Larson Tundi Agardy (Marine Policy Center, WHOI) Ben Wilcox Armand Michaud Beth Hayden Barbara L. Williams E. Jane Gordon Jeff Babson David Barbara Dana Burslie Susan M. Wythe Dr. Howard E. Winn Patrick Ryan Rich Eich Carole M. Smith Michael Brody Tom Horton Kiraberly Difer Charles Duncan (Institute for Field Ornithology, Oniv. of ME) Stephen M. Keane James Serach Page G88 John Fiorentir.o 5,n--n„^ Madeline Walsh (Urban Harbors Ir.szi-.ute , U. M=ss . . Bos.o..) Winifred Pisar: Sam Knighi Petsr Kube ('J.S. Army Corps of Engineers) Deirdre Kimball Douglas Franklin Dr. David Kcrinoto (Regis College; Dr. Larry Kelts (Merrimack College Joan Mai 1 STELLWAGi::; BANK COMMEP.CI.AL FISHERIES COOPZHATIVE Box 396 Scituate, Massachusetts o:s66 March 13, Mr. Joseph Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Oceanic and Atmospheric Administration 1825 Connecticut Avenue NW, Suite 714 Washington, D.C. 20235 1991 1. ^. Dear Mr. Uravitch, Thank-you for giving me an opportunity to comment on the DEIS/DMP for the proposed Stellvagen Bank National Marine Sanctuary. I have been working on the Stelluagen Bank Sanctuary issue for over a year now and have been in direct contact with fishermen and their association representatives concerning this process. Commercial fishermen have harvested the Stellvagen area for generations. They care deeply about their resource, water quality and habitat protection. The fishermen remain skeptical about a marine sanctuary in their home fishing grounds. They wonder whether a marine sanctuary will really be beneficial or just more of the bureaucratic game. The quality and strength of your revisions to the final designation documents will determine their support or non-support. Fishermen endorse stronger language on some aspects of the draft, as do many others. If a sanctuary is designated at Stellvagen Bank, they support full funding of the sanctuary, with an on-site manager, education coordinator, research coordinator and appropriate enforcement capabilities. They do not support a paper sanctuary. Fishermen are very concerned with how increased awareness and use of a marine sanctuary on Stellwagen will affect their ability to fish the 'Middle Bank'. They want to have a part in the management process for their sanctuary. They endorse the idea of a formal advisory committee, heavily seated with historic user groups, including several members of the distinct and seperate major commercial fisheries taking place at Stellwagen. This advisory committee should represent the people directly _involved with the sanctuary daily. It is disappointing to see the draft stop short on oil and gas exploration. NOAA should recommend a prohibition of offshore hydrocarbon exploration and development now. •~ The political hot potato of where the boundary should be in relation to the Massachusetts Bay Disposal Site is ludicrous. Irregardless of where the western boundary is drawn, water and habitat quality in Stellwagen Basin will be affected by inappropriate uses of the MBDS or inadequate treatment of effluent from the STELLWAGEN BANK COMMERCIAL FISHERIES COOPERATIVE 1. At the time of final Sanctuary designation, NOAA intends to have hired a Sanctuary Manager, and to have identi- fied a Sanctuary headquarters. Shortly thereafter, NOAA anticipates the hiring of additional Sanctuary staff, including a research coordinator, an education coordinator, and one or more enforcement officers. Additionally, NOAA has been directed by Congress to consider estab- lishment of a "satellite" office in Provincetown, Gloucester or Hull, MA. 2. See generic response 0. 3. See generic response E. 4. See generic responses C.2., D.I., and D.2. Boston Harbor 0 activities need 3 sanctuary sho alternative all but prohibited preferred bound Commercial met with member Committee and f to discuss the should be defin Dr. Stormy Mao, present. NOAA' study area. Th defined in Lora Site. This div NOAA. These Lo link up with wa as the Cape Cod from this meeti of the letter s effort and shou utfall Pipe. Ocean disposal and discharge the monitoring and higher level of scrutiny uld provide. Fishermen support the preferred owing disposal at the MBDS under sanctuary oversight, elsewhere. Fishermen do not support NCAA's ary and are suggesting a fourth boundary alternative. fishermen, representing many different fisheries of the Stellwagen Bank Coalition Steering ederal and state representatives i-n June, 1990, boundary. Fishernen explained why the boundary ed in Loran C lines for ease of navigation. who suggested the 'study area' initially, was s preferred boundary alternative is this very at day, the group came up with a sanctuary area n C and encompassing the entire Mass. Bay Disposal erse group agreed to recommend this boundary to ran C lines can easily be extended Southerly to ters designated by the Commonwealth of Massachusetts Ocean Sanctuary. I am submitting the minutes ng, including a list of participants, and a copy ent to NOAA. This was a significant and successful Id not be ignored. 5. See generic responses B.l. and B.2. Page G89 c 2. 9. There are some technical portions of the DEIS which must "^ "^Landings data and general information on the fisheries is poor. I find the description of fishing gear on pages 62-63 to be emotional, haphazard and technically incorrect. ^1='^^ and mobUe gear fishermen are willing to worK with ^°- ^l'°\llll\^ a more accurate description of fishing techniques at Stellwagen. - Another technicality involves number eight of the regulatory alternatives on page 152. The Migratory Bird Treaty Act should be cited in context with the Marine Mammal Protection and the Endangered Species Act. I. therefore, question the l°g>;= °f ifl including seabirds in the scope of regulations for this """^Although commercial cargo traffic is included under ^^t^^ities that may be subject to regulations in the future, it seems that recreational vessel traffic should also be included in the scope of future regulations for the same reasons. Several fishing organizations have been a pa-- =£ '^"e public process for designation of this sanctuary, /^^ff^ include the following organizations in your list o. National and Regional Interest Organizations: Massachusetts Lobstermen's Association Massachusetts Inshore Draggermen's Association New England Gillnetter's Association Stellwagen Bank Commercial Fisheries Cooperative Fishermen are loolcing for the good this sanctuary can bring but are afraid the draft documents fall short due to compromise on the most important environmental issues. Sincerely, 6. Information on fisheries landings and fishing gear in the Stellwagen Bank area have been updated and revised in the FEIS at PART TWO, Section II.C.l. 7. A discussion of the Migratory Bird Treaty Act (HBTA) has been added to the FEIS at Appendix B. See also generic response L. 8. See generic response K.l. 9. Conunent noted. NOAA has added these organizations to the FEIS distribution list. i inctji e J. V , /Janice Comeau Anderson general aanager ^oaIotv. .J^oAAocAuAelii. 0S-/25 -3393 Urban Harbors Institute/Envirorunental Sciences Program 4/1/91 Mr. Joseph A. Uravitch, Chief Sanctuaries and Reserves Division Office of Ocean and Coastal Resource Management National Ocean Service/NOAA 1825 Connecticut Ave., N.W. Suite 714 Washington, DC 20235 Dear Mr. Uravitch, 1. The following are comments regarding the Draft Environmental Impact Statement/Management Plan on the designation of Stellwagen Bank as a National Marine Sanctuary. First, we would like to conunend NOAA on its proposed regulations to prohibit (1) offshore industrial materials development, (2) the taking of marine reptiles, marine mammals, and seabirds, (3) wastewater discharges within the sanctuary, (4) the alteration of, or construction to, the seabed, (5) the placement of submerged pipelines and cables, (6) the removal, taking or injuring of historical or oiltural resources, and (7) the discharge of trash and other debris. These regulatioriS provide NOAA witii a strong regulatory foundation wiJi which it can effectively manage and protect sanctuary resources and uses. Furthermore, we agree with NOAA's preferred management alternatives of placing the operation of commercial vessels and charterboats as activities subject to future regulation. The potential impact of these activities on sanctuary resources and uses may be very significant, but is not currently well understood. We recommend study and research as part of the proposed sanctuary management plan to assess this impact However, we think boundary alternative «2, NOAA's preferred alternative, and proposed regulations for: (1) dredged material disposal, (2) oil and gas development, (3) mariculture, and (4) recreational vehicle activity are inadequate to meet the primary goal of the sanctuary program— enhanced protection of resources and uses. UNIVERSITY OF MASSACHUSETTS/ BOS TON, URBAN HARBORS INSTITUTE/ENVIRONMENTAL SCIENCES PROGRAM 1. No response necessary. Page G90 1, prcdgpfl material disposal First, the proposed boundary alternative (#2) is inconsistent with the preferred regulatory alternative for dredged material disposal. The DEIS states, "boundary alternative #2 does not encompass any of the Massachusetts Bay Disposal Site (MBDS), as currently-proposed for designation by EPA" {p.l31). Yet, the preferred regulatory alternative for dredged material disposal, "disposal allow/ed at MBDS under sanctuary oversight" (p. 136), is based on the premise that dredged material disposal activity is to occur within the boundary of the sanctuary. While we support NOAA's intent to monitor dumping activities at MBDS; NOAA does not state how it intends to monitor or regulate dumping activities at the MBDS if the dumpsite is outside of sanctuary boundaries. In our view, there is no appropriate regulatory alternative to including the MBDS within sanctuary boundaries. Based upon the amount of toxic material already present at the MBDS site and the great volume of dredged material targeted for the site, the MBDS is a significant potential threat to sanctuary resources and uses. We cannot safely conclude that continued use of MBDS or the existing contamination at the site does not adversely affect the surrounding environment. For example, the original dumpsite, which is located approximately one nm north of the Boston Foul Ground (BFG) and was used from 1963 to 1975, was not sampled during COE and EPA studies to assess the level of contamination at the BFG and the MBDS. Since ocean dumping at the time the first site was in use was unregulated, it is unknown what types of waste were dumped at the site. The effects of the earlier site on the environment, therefore, are largely unknown. Furthermore, it is premature to conclude that bioaccumulation at the site is inconsequential because animals which may have the highest concentrations of contaminants, i.e., animals at higher levels of the food-chain which could biomagnify contaminants, have not been sampled for contaminant levels. Finally, some animals which have been sampled at the MBDS show PCB contamination levels above the FDA's action level of 2 ppm (wet weight). We agree wiA the COE's and EPA's recommendation to designate the MBDS a permanent dumpsite for dredged materials; and we agree with their conclusion that the overall impact of these sites on the surrounding environment is minimal. However, MBDS and other dumpsites in Stellwagen Bank have the potential to harm sanctuary resources and uses. Therefore, NOAA should make continued research on these sites and monitoring of future dumping activity at MBDS a top priority. We believe that NOAA can best accomplish these objectives, objectives which are consistent with the overall goab of the sanctuary program, by selecting a boundary alternative which includes the MBDS, and other dumpsites in Stellwagen Basin, within the sanctuary boundary. This, we think, is the same conclusion that the DEIS draws in the discussion of the preferred regulatory alternative for dredged material disposal (p. 136). However, because the preferred boundary altenxative (#2) does not presently include the MBDS or other dumpsites, boundary alternative #3 should be selected as the permanent sanctuary boundary so that NOAA may implement its preferred regulatory alternative for dredged material disposal. 2. See generic responses D.l. and D.4. Additionally, see expanded discussion of the MBDS at PART THREE, Section Il.C.l.a. NOAA is currently pursuing the development of a protocol, or memorandum of agreement with EPA and COE regarding review of disposal permit applications for the MBDS, and monitoring efforts to determine any adverse effects of dis- posal activities on Sanctuary resources or qualities. 3. 4 2. Offshorp nil and pas development Currently, offshore oil and gas development is an activity placed withm the proposed sanctuary's scope of regulation. Clearly, offshore oil and gas development is inconsistent with the protection of resources and uses within the sanctuary. Because oil and gas exploration is inconsistent with the protection of sanctuary resources and uses, this activity should be prohibited. Furthermore, by failing to prohibit oil and gas development activity as part of the original designation terms, and only reserving the right to do so in the future, NOAA may open the door to legal challenges in the event of a later prohibition on oQ and gas development The attempt to accomplish this goal by regulation may run afoul of the Marine Sanctuaries Acfs requirement that amendments to the sanctuary designation terms must be made in the same manner as the original terms were approved, i.e., the entire designation process must be repeated. NOAA should, at the least, obtain an opinion from its Office of General Counsel to the effect that listing an activity for regulatory purposes encompasses the future categorical prohibition of that activity. 3. M^ricvltvre , ., .u . Because mariculture is an exclusive use of sanctuary resources and poses a threat to other resources and uses, it should be prohibited within the sanctuary. Sanctuaries, by definition, should support and protect compatible uses. Mariculture operations could exclude, or present obstacles to, other sanctuary uses, such as commercial fishing, recreational fishing, whale-watching, shipping, and other, compatible, sanctuary uses. Furthennore, mariculture operations pose an entanglement threat to marine mammals. For these reasons, we believe that mariculture should be prohibited within the sanctuary. 3. See generic response E. By listing this activity as "subject to Sanctuary regulation", NOAA has identified it as being within the scope of Sanctuary regulation. Should the need to regulate hydrocarbon activities within the Sanctuary arise in the future, NOAA would not be required to repeat the entire NEPA process, but could issue a Notice of Proposed Rulemaking, which would also be open to public review and participation. 4. See generic response G. Page G91 5. i^?^S^SS^f^.on.an.e.^^^^^^^^ 3. see generic response K.l. V ^' '"'^ch d^s^o fb^a^ ;: ;; ^e^e^^^^ '° --- mammals We STnLber of recreational ^oa. ^ the -a -^^^^^^^ °mS-rmr:.°e;S^a:f.ur^^^^^ "^,c inTsanctuary. If further research demons^ates that recreanonal boating ^s [mammals. Jack H. Archer ^ Cyl J. McKay A^odate Professor, ESP ESP ^ Senior Assodate, UHI Page G92 Stellwagen Bank FEIS/MP Appendices Page G93 C. BUSINESS INTERESTS THE GUGEL GROUP 'liic 8»ii«jc! S»r»nj5 i.u„.u,i^„M^ Acl /'^,x^\ a^w •/ 1,^.^ eso g,irrf»-« V -^ --^ ' - / ^ vr- ^ ^ '^ ^ Page G94 ^yJU^ '^""^^(T n fjB fti^ ^ cw^ ,^1^ '^LJ.^^ — r*^ "^'^^' 1. The purpose of NOAA nautical charts is to provide navigational guidance to vessel operators. Stellwagen Bank measures approximately 18.75 miles in length, and 6.25 miles in width, at its widest point. The center of the Bank is located at approximately 42"15'N x 70'15'W. Page G95 .?. 2. Questions regarding actions taken by the Corps of Engineers in response to your application for establishment of a fixed offshore artificial platform should be addressed to the Corps of Engineers. The COE is responsible for review of offshore construction applications. Page G96 ^X^LM.-^ ^ ^ 1_ ,a:J^ A-^ ^ ^^ Page G97 ,-A^M>- ^^^'^'^ ^^^ji^ Page G98 A^^ ,-v..*-.^ ^-IM^ ^i^^^^ r*t^' . •« I^U^-t-O Page G99 ^^^"^^^ ^^J^ ^jc..^ .'-^^ r^ Page GlOO 3. 4. U^ M^ ^^ ^^^t.^^ O-V.^ JUS if^ '-^^_ . „ , • u,...;^^ -'-*'- «/JJZ- 3. The purpose of the proposed Stellwagen Bank National Marine Sanctuary is to provide long-term protection and management for the nationally-significant marine re- sources found within the Bank system. To the extent they are compatible with the overall objective of resource pro- tection, human activities within the Sanctuary are encouraged. National marine sanctuaries are not closed to the public. Page G102 4. •iAii^^^"*^ ,? ^1^^ QyjJJjLC^ /UlA-w€o /v%.-(»-'?X