Rule2024-23607
Chumash Heritage National Marine Sanctuary
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 16, 2024
Effective
October 16, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NOAA is designating Chumash Heritage National Marine Sanctuary (CHNMS) in the waters along and offshore of the coast of central California to recognize the national significance of the area's ecological, historical, archaeological, and cultural resources and to manage this special place as part of the National Marine Sanctuary System. The sanctuary boundary encompasses 4,543 square miles (mi\2\) (3,431 square nautical miles (nmi\2\)) of submerged lands and marine waters from approximately two miles southeast of the marina at Diablo Canyon Power Plant in San Luis Obispo County to Naples along the Gaviota Coast in Santa Barbara County. NOAA is establishing the terms of designation for CHNMS and the regulations to implement the national marine sanctuary designation. NOAA has also published a final environmental impact statement (final EIS), final management plan, and Record of Decision.
Full Text
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<title>Federal Register, Volume 89 Issue 200 (Wednesday, October 16, 2024)</title>
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[Federal Register Volume 89, Number 200 (Wednesday, October 16, 2024)]
[Rules and Regulations]
[Pages 83554-83600]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23607]
[[Page 83553]]
Vol. 89
Wednesday,
No. 200
October 16, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 922
Chumash Heritage National Marine Sanctuary; Final Rule
Federal Register / Vol. 89 , No. 200 / Wednesday, October 16, 2024 /
Rules and Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 240829-0230]
RIN 0648-BL31
Chumash Heritage National Marine Sanctuary
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service, National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce.
ACTION: Final rule.
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SUMMARY: NOAA is designating Chumash Heritage National Marine Sanctuary
(CHNMS) in the waters along and offshore of the coast of central
California to recognize the national significance of the area's
ecological, historical, archaeological, and cultural resources and to
manage this special place as part of the National Marine Sanctuary
System. The sanctuary boundary encompasses 4,543 square miles (mi\2\)
(3,431 square nautical miles (nmi\2\)) of submerged lands and marine
waters from approximately two miles southeast of the marina at Diablo
Canyon Power Plant in San Luis Obispo County to Naples along the
Gaviota Coast in Santa Barbara County. NOAA is establishing the terms
of designation for CHNMS and the regulations to implement the national
marine sanctuary designation. NOAA has also published a final
environmental impact statement (final EIS), final management plan, and
Record of Decision.
DATES: Effective Date: Pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the designation and
regulations shall take effect and become final after the close of a
review period of forty-five days of continuous session of Congress,
beginning on the date on which this Federal rulemaking is published,
which is October 16, 2024. During that same review period, the Governor
of the State of California may certify to the Secretary of Commerce
that the designation or any of its terms are unacceptable, in which
case the designation or the unacceptable term will not take effect in
State waters of the sanctuary. The public can track days of
Congressional session at the following website: <a href="https://www.congress.gov/days-in-session">https://www.congress.gov/days-in-session</a>. NOAA will publish an announcement of
the effective date of the final regulations in the Federal Register.
ADDRESSES: Copies of the final EIS and management plan described in
this rule and the Record of Decision (ROD), and additional background
materials are available at: <a href="https://sanctuaries.noaa.gov/chumash-heritage/">https://sanctuaries.noaa.gov/chumash-heritage/</a>.
FOR FURTHER INFORMATION CONTACT: Laura Ingulsrud, West Coast Regional
Policy Analyst, 99 Pacific Street, Suite 100F, Monterey, CA 93940, 831-
647-6450, <a href="/cdn-cgi/l/email-protection#c7aba6b2b5a6e9aea9a0b2abb4b5b2a387a9a8a6a6e9a0a8b1"><span class="__cf_email__" data-cfemail="7c101d090e1d5215121b09100f0e09183c12131d1d521b130a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Background
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate and
protect as national marine sanctuaries areas of the marine environment
that are of special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archaeological, educational, or esthetic qualities. Day-to-day
management of national marine sanctuaries has been delegated by the
Secretary to ONMS.
NOAA is designating CHNMS in the waters along and offshore of the
coast of central California to recognize the national significance of
the area's ecological, historical, archaeological, and cultural
resources and to manage this special place as part of the National
Marine Sanctuary System. The sanctuary boundary will encompass 4,543
mi\2\ (3,431 nmi\2\) of submerged lands and marine waters from
approximately two miles southeast of the Diablo Canyon marina in San
Luis Obispo County to Naples along the Gaviota Coast in Santa Barbara
County. This boundary reflects NOAA's Final Preferred Alternative,
which is described in the final environmental impact statement (final
EIS) as Alternative 4 (Combined Smallest) and Sub-Alternative 5b
(Gaviota Coast Extension), plus a small area (151 mi\2\, 114 nmi\2\) in
the center of the Santa Lucia Bank analyzed as part of the Initial
Boundary Alternative, thereby creating a straight line across the
northern section of the new sanctuary. NOAA has also included in the
final management plan a framework to provide collaborative co-
stewardship with the local Tribes and Indigenous communities \1\ in
this area for CHNMS.
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\1\ This rule uses ``Tribes and Indigenous communities'' and
other related phrases to refer broadly to federally recognized
Tribes, Native American Tribes that are not federally recognized,
and other Indigenous groups and organizations. When appropriate to
reference the federally recognized Tribe in this area, the Santa
Ynez Band of Chumash Indians, the rule specifically names that
Tribe. When appropriate to reference federally recognized Tribes
more broadly, the EIS uses the terms ``federally recognized
Tribe(s)'' or ``federally recognized Tribal Nation(s).'' As such,
use of the term ``Tribe'' or ``Tribal'' is not intended to refer
only to federally recognized Tribes unless otherwise specified.
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The specific area being designated as a national marine sanctuary
includes the coastline of central California from approximately two
miles southeast of Diablo Canyon marina, south along the San Luis
Obispo County coast and a portion of Santa Barbara County to
approximately two miles south of Dos Pueblos Creek near the township of
Naples along the Gaviota Coast. Roughly 116 miles of the mainland coast
(132 miles if including the shoreline of offshore rocks and islands)
are part of the sanctuary designation. The sanctuary's boundaries also
include the State waters off the Gaviota coast, the offshore marine
waters from the western end of Channel Islands National Marine
Sanctuary (CINMS), and northwards, including about half of the Santa
Lucia Bank, to approximately 55 miles west of the Santa Maria River
mouth, and then east and then north to the point of origin at south of
the Diablo Canyon marina. This area out to approximately 60 miles (51
nmi) from shore includes numerous offshore features such as the Santa
Lucia Bank, portions of its escarpment, Rodriguez Seamount, Arguello
Canyon, and other offshore features and resources. Coastal watersheds
drain into this area via multiple outlets, including the Santa Maria
and Santa Ynez river mouths and several other coastal streams and
rivers. Strong coastal winds drive seasonal upwelling which fuels the
area's high biological productivity, supporting dense aggregations of
marine life. Specifically, winds offshore of Point Arguello/Point
Conception initiate a powerful upwelling process that nourishes other
nearby productive ecosystems, such as those located within CINMS. The
presence of a biogeographic transition zone around Point Conception,
where temperate waters from the north meet waters from the subtropics,
creates an area of nationally-significant biodiversity in sea birds,
marine mammals, invertebrates, and fishes.
For more than 10,000 years, the productive and diverse ecosystems
in the region have been essential to the way of life of Indigenous
Peoples in the region, in particular the Chumash, one of the few ocean-
going bands among the First Peoples of the Pacific Coast. Tribal
connections to the region include traditional and ancestral homelands,
customary uses of marine resources for food and cultural connections,
and
[[Page 83555]]
stewardship of resources and ecosystems within ancestral waters.
Coastal landscapes and seascapes, including viewsheds, are integral and
sacred elements of Native American cultural connections to the region.
Additionally, during the last glacial maximum, the region's coastline
extended beyond the present-day coast to include now-submerged areas
that were likely inhabited by ancestors of California Tribes before the
last sea level rise. As ocean-going Indigenous peoples on the
California coast, the Chumash traveled to sea, to the Channel Islands,
and along the coast in traditional redwood plank canoes called
``tomols.'' Coastal Chumash traditionally harvested an array of marine
resources such as abalone and other shellfish, Olivella shells, fish,
kelp and other seaweeds, and marine mammals. Today, Chumash Peoples
undertake ocean voyages in tomol canoes to honor their ancestors'
crossings to the offshore islands and to continue to honor ceremonial
sites within their historic areas.
The marine environment of the sanctuary has provided and continues
to provide a special sense of place to its changing coastal communities
and visitors because of its historical, archaeological, cultural,
aesthetic, and biological resources. The Indigenous peoples along this
coast were the first people living in present-day California to have
contact with Europeans when Spanish explorers arrived on the Pacific
Coast in the mid-1500s. Subsequent waves of Spanish, Mexican, English,
Russian, and American explorers and settlers traveled to this region
over the next 300 years. The region was shaped by development of a
mission system from San Diego to San Francisco, the California gold
rush in the mid-1800s, ranching for cattle and the hide/tallow trade,
military training and operations, a coastal and offshore oil boom, and,
more recently, coastal and offshore renewable energy development.
Maritime shipping has been prominent in this portion of California,
with treacherous weather and currents leading to over 200 reported ship
and aircraft wrecks; at least 20 prominent shipwrecks alone have been
found in the area between Point Conception and Point Sal. Two
shipwrecks that lie within the sanctuary--the Yankee Blade and the
McCulloch--have been listed on the National Register of Historic
Places; the Montebello, also on the National Register, lies to the
north of the sanctuary's boundaries.
Coastal tourism, recreational activities, and commercial fishing
are prominent components of the coastal and marine economy in this
region, particularly in San Luis Obispo County. Coastal and offshore
energy and military activities are more prominent in the portion of
this region along the Santa Barbara County coastline. Public access to
the sanctuary, in particular through State and local parks, is
available along the coastline of both counties, as well as from public
harbors in Morro Bay, Port San Luis and Santa Barbara. Private land
holdings in both counties and a large military base in Santa Barbara
County limit access as well as human use and exploitation of natural
habitats. Marine research is a small but growing sector of the ocean
uses in this area.
B. Need for Action
The NMSA authorizes the Secretary to designate national marine
sanctuaries to meet the purposes and policies of the NMSA, which are
available at 16 U.S.C. 1431(b), including:
<bullet> To identify and designate as national marine sanctuaries
areas of the marine environment which are of special national
significance and to manage these areas as the National Marine Sanctuary
System;
<bullet> To provide authority for comprehensive and coordinated
conservation and management of these marine areas, and activities
affecting them, in a manner which complements existing regulatory
authorities;
<bullet> To facilitate to the extent compatible with the primary
objective of resource protection, all public and private uses of the
resources of these marine areas not prohibited pursuant to other
authorities;
<bullet> To develop and implement coordinated plans for the
protection and management of these areas with appropriate Federal
agencies, State and local governments, Native American Tribes and
organizations, international organizations, and other public and
private interests concerned with the continuing health and resilience
of these marine areas; and,
<bullet> To create models of, and incentives for, ways to conserve
and manage these areas, including the application of innovative
management techniques.
The nationally significant natural resources, physical features and
habitats, and the cultural and historical resources within the
sanctuary warrant long-term protection and management to reduce threats
that would adversely affect their historical, cultural, archaeological,
ecological, recreational, and educational value. For example, many
threatened or endangered species, such as blue whales, snowy plovers,
black abalone, white sharks, and leatherback sea turtles, rely on
habitats, physical features, or prey found in the sanctuary. This area
also contains hundreds of known or suspected shipwrecks of historical
importance, including several on the National Register of Historic
Places. Moreover, this region and its abundant resources have been home
to coastal, ocean-going Indigenous Peoples for tens of thousands of
years, and submerged village sites may exist along paleoshorelines in
the submerged lands of the sanctuary. Various levels of human
development and activity can cause harm to these natural, cultural and
historical resources from: new offshore energy development;
decommissioning and removal of coastal and offshore industrial
facilities; sound, discharges and whale strikes from vessel traffic;
plastics, marine debris and pollutants from coastal runoff; and most of
all, acute and cumulative impacts of climate change.
Accordingly, NOAA is designating this area as a national marine
sanctuary to: (1) manage and protect nationally-significant natural
resources, physical features and habitats, and cultural and historical
resources through a regulatory and nonregulatory framework; (2)
document, characterize, monitor, study, and conserve these resources;
(3) provide interpretation of their natural, cultural, historical, and
educational value to the public; (4) promote public stewardship and
responsible use of these resources for various purposes to the extent
compatible with the sanctuary's principal goal of resource protection;
(5) develop a coordinated, community-based, ecosystem-based management
regime with partner Federal agencies, State and local governments, the
federally recognized Tribe, and other Indigenous organizations; and (6)
develop and carry out an innovative collaborative management structure
to involve Indigenous communities, including federally recognized
Tribes, other Indigenous groups and organizations, and individuals and
communities with knowledge of Indigenous culture, history, and
environment, in important management programs and initiatives of the
sanctuary.
Designating a new national marine sanctuary along the coast of
central California allows NOAA to complement and supplement existing
Federal and State resource management programs, policies, and
regulations. For instance, discharge regulations to establish more
comprehensive water quality protection across the geographic range for
sanctuary protection under NMSA will bolster existing authorities under
the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.). NOAA has well-
regarded and
[[Page 83556]]
successful programs to conduct outreach, education, and communication
that will recognize and promote this area's nationally-significant
natural, historical, and cultural properties. NOAA can assist the
region's scientific expertise and technological resources to enhance
ongoing research, and provide a hub for the coordination of these
activities. Through its focus on various initiatives benefiting the
marine and coastal economy, NOAA's designation of the area as a
national marine sanctuary enhances and facilitates public stewardship
of natural, historical, and cultural resources. Lastly, designating
this national marine sanctuary provides expanded conservation of key
resources within the California Current Large Marine Ecosystem, and
creates a collaborative framework to involve Indigenous communities in
region-wide management.
C. Designation Process
1. Notice of Intent To Designate a National Marine Sanctuary
In July 2015, a broad community consortium led by the Northern
Chumash Tribal Council submitted a nomination through the Sanctuary
Nomination Process. The nomination identified opportunities for NOAA to
expand upon existing local and State efforts to study, interpret, and
manage the area's unique cultural and biological resources. The
nomination also highlighted the maritime history and cultural heritage
of Chumash Peoples, who, along with other Indigenous communities, have
deep cultural connections to this area of central California. NOAA
completed its review of the nomination and, on October 5, 2015, added
the area to the inventory of successful nominations eligible for
designation. All nominations submitted to NOAA can be found at: <a href="https://www.nominate.noaa.gov/nominations">https://www.nominate.noaa.gov/nominations</a>.
On November 10, 2021, NOAA began the sanctuary designation process
for the proposed CHNMS by publishing a notice of intent (86 FR 62512)
to prepare a draft EIS as well as other pertinent designation materials
such as a draft management plan, terms of designation, and a proposed
rule, as required by NMSA and the National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.). The notice of intent also announced
NOAA's intent to fulfill its responsibilities under the requirements of
the National Historic Preservation Act (NHPA; 54 U.S.C. 300101 et seq.)
and Executive Order 13175.
Following the notice of intent, NOAA conducted three virtual public
meetings, hearing oral comments from 100 participants, and received
thousands of written comments during an 83-day public comment period.
The majority of comments supported the goals of sanctuary designation,
including protecting the cultural heritage of Chumash Tribal
communities and protecting the coastal California ecosystem's health
and resilience. Many commenters also noted the importance of managing
the area to promote recreation and tourism to support the local
economy, to foster education and research programs, and to establish a
shared management approach with Indigenous communities. Commenters also
voiced concerns about overlapping existing and potential uses of the
area such as fishing and offshore energy development. Overall, comments
covered a diversity of other topics including views on: the proposed
boundary and name for the proposed sanctuary; alternatives to consider
for the boundary and name for the proposed sanctuary; activities that
should be regulated; what non-regulatory programs the proposed
sanctuary should have; and different ways to structure collaborative or
co-management with Native American Tribes. More detail about the
scoping comments is contained in the final EIS, section 3.11 and
Appendix B.
2. Public Comment on Draft Designation Materials
After the close of the public scoping process, NOAA engaged in an
18-month process to evaluate the comments received; to determine which
activities might require regulations, which should best be addressed
through non-regulatory actions of the management plan, and which
warranted no action; and to assess the potential environmental impacts
of sanctuary designation on the natural and human environment. NOAA
held public meetings and workshops to gain information on certain
areas, such as research and monitoring, wildlife disturbance,
recreation and tourism, education, and water quality. NOAA held formal
government-to-government consultation meetings with the one federally
recognized Tribe in the region, the Santa Ynez Band of Chumash Indians
(SYBCI), and also held engagement meetings with other non-federally
recognized Tribes and Indigenous organizations in the region. Three
documents were released for public comment on August 25, 2023--a draft
management plan,\2\ a proposed rule with terms of designation and
proposed regulations (88 FR 58123), and a draft environmental impact
statement.\3\ The Department of Defense (DoD), the Bureau of Ocean
Energy Management (BOEM), the Bureau of Safety and Environmental
Enforcement (BSEE) and SYBCI served as cooperating agencies in
reviewing and assisting with their expertise in development of the
draft EIS. NOAA held three public workshops in September 2023 (two in-
person and one virtual) to present the recommended actions, explain its
analysis, and answer questions, and it held three public comment
meetings in September and October 2023 (two in-person and one virtual)
to receive oral public comments on the draft designation materials. The
public comment period closed on October 25, 2023; comments were
received orally at public meetings, in writing, via email, and through
the comment portal <a href="http://regulations.gov">regulations.gov</a> (docket #NOAA-NOS-2021-0080). On
request, NOAA also conducted meetings with several stakeholder groups
following the close of the public comment period for the express and
limited purpose of receiving clarifications, primarily on technical
issues, regarding the public comments submitted by the groups. Meeting
summaries are available on the public rulemaking docket at
<a href="http://regulations.gov">regulations.gov</a> (docket #NOAA-NOS-2021-0080).
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\2\ <a href="https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/chumash/2023-proposed-chumash-heritage-nms-draft-management-plan.pdf">https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/chumash/2023-proposed-chumash-heritage-nms-draft-management-plan.pdf</a>.
\3\ <a href="https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/chumash/2023-proposed-chumash-heritage-nms-deis.pdf">https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/chumash/2023-proposed-chumash-heritage-nms-deis.pdf</a>.
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In total, NOAA received 2,292 separate oral and written public
comment submissions, that totaled more than 110,500 comments including
campaign letters and petition signatures. NOAA reviewed all comments,
organizing them into nearly 500 separate, substantive issues that each
received a written response (see Appendix A of the final EIS, Response
to Comments and section V of this final rule). The comments and NOAA's
responses to those comments have guided development of the final terms
of designation and regulations as outlined in this final rule, the
final management plan, and the final EIS. Each of those documents are
outlined in sections below, including a discussion of the Final
Preferred Alternative.
3. Development of Terms of Designation and Regulations
Section 304(a)(4) of the NMSA requires that the terms of
designation
[[Page 83557]]
include the geographic area included within the sanctuary; the
characteristics of the area that give it conservation, recreational,
ecological, historical, research, educational, or aesthetic value; and
the types of activities that would be subject to regulation by the
Secretary to protect these characteristics. Section 304(a)(4) also
specifies that the terms of designation may be modified only by the
same procedures by which the original designation was made.
The purpose and need for the sanctuary provide the overarching
basis for developing the regulations. NOAA developed this rulemaking
and the sanctuary terms of designation based on information received
during public scoping comments, cooperating agency review, and
government-to-government consultation with Tribal Nations under
Executive Order 13175, as well as feedback from interagency
coordination, comments received through the public comment process on
the draft designation materials, from analysis of issues and potential
impacts as explained in the final EIS, and internal staff analysis and
expertise.
Comments from the scoping and the public review processes from
Tribal representatives, representatives of other Indigenous groups,
governmental agencies, users such as the fishing industry and offshore
wind energy, telecommunications and oil and gas industries, other
interested organizations, and the public addressed the need for
regulations and exemptions for certain activities. NOAA consulted with
the Pacific Fishery Management Council as required under NMSA section
304(a)(5). NOAA also considered existing regulations for other west
coast national marine sanctuaries, including Monterey Bay, Greater
Farallones, Channel Islands, and Olympic Coast national marine
sanctuaries, and developed terms of designation and a set of
regulations that are generally consistent with other sanctuary
provisions in similar resource areas. In developing the regulations,
NOAA evaluated resource sensitivity, industry practices, and
feasibility of implementing certain regulations, to balance resource
protection regulations with existing and future compatible activities
that may occur in the sanctuary.
Following publication of the proposed rule, in consideration of
public comments and further review, NOAA made changes to the terms of
designation and the regulations which are described in detail in
section III of this final rule. NOAA provides a detailed discussion of
the final regulations in section IV, subsection A through I, of this
rule. The text of the final regulations are presented at the end of
this rule.
4. Development of Final Management Plan and Framework for Tribal
Collaborative Co-Stewardship
When designating a national marine sanctuary, NOAA also develops
and presents a management plan that describes the management activities
and initiatives that it proposes to conduct. The final management plan
for the designation of CHNMS describes actions that NOAA will take to
manage the sanctuary, summarized in 12 action plans, such as research
and monitoring, education and outreach, sanctuary resource protection,
and sanctuary operations, as well as practical programs to address
certain issue areas, such as climate change, offshore energy, water
quality, and wildlife disturbance. NOAA has developed the final
management plan for the Final Preferred Alternative it is designating.
In addition to engaging in government-to-government consultation
with the federally recognized SYBCI, as described in section VI
Classification below, NOAA has conducted meetings with non-federally
recognized Tribes and Indigenous organizations along the central
California coast, including the Northern Chumash Tribal Council, yak
tityu tityu yak ti[lstrok]hini Northern Chumash Tribe, Coastal Band of
the Chumash Nation, Xolon Salinan Tribe, Salinan Tribe of Monterey and
San Luis Obispo Counties, Wishtoyo Chumash Foundation, and
Barbare[ntilde]o/Venture[ntilde]o Band of Mission Indians. After the
draft designation materials were released, NOAA also met with many of
these same organizations as part of consultations conducted under
Section 106 of the National Historic Preservation Act, in which some of
these organizations participated as additional consulting parties.
Close, deliberate collaboration between NOAA and these Indigenous
organizations has been an essential element of this sanctuary
designation process. NOAA has incorporated input from federally
recognized Indian Tribes and all interested Indigenous community
entities throughout the sanctuary designation process, as well as
toward sanctuary management after designation. The final management
plan includes an Indigenous Cultural Heritage Action Plan that
describes how sanctuary management would involve Tribal and Indigenous
perspectives and collaboration in a number of specific sanctuary
management actions.
Additionally, NOAA is including in the final management plan a
framework for collaborative co-stewardship of the new sanctuary with
federally recognized Native American Tribes and non-federally
recognized Indigenous groups. A detailed explanation of that framework
and an outline of opportunities for Tribal and Indigenous community
collaboration in management of the sanctuary are found in the
introduction to the final management plan. In summary, the framework,
revised based on the public comments, has built upon extensive input
from representatives from the SYBCI and non-federally recognized
Indigenous organizations in this coastal area. NOAA envisions relying
on government-to-government consultation with federally recognized
Tribes; an Intergovernmental Policy Council involving federally
recognized Tribes and the State of California; and a Sanctuary Advisory
Council (to be established after designation) that has one or more
voting seats for federally recognized Tribes and one or more voting
seats to represent the knowledge, history, and culture of Indigenous
communities more broadly. NOAA also intends to work with the Sanctuary
Advisory Council, after sanctuary designation, on the establishment of
an Indigenous Cultures Advisory Panel as a working group of the
Sanctuary Advisory Council. The Indigenous Cultures Advisory Panel will
provide advice to the Sanctuary Advisory Council, with coordination and
communication with other groups as appropriate, about cultural issues
important to these coastal Tribes and Indigenous groups. NOAA also
envisions a role for one or more non-profit foundations to support
joint projects between NOAA and federally recognized Tribes and/or non-
federally recognized Indigenous groups.
The following substantive changes were made to the draft management
plan, as reflected in the final management plan and described in more
detail in EIS Section 3.2.3:
<bullet> The Framework for Indigenous Collaborative Co-Stewardship
in the Introduction was revised to clarify collaborative management
roles and responsibilities;
<bullet> Nearly all action plans were enhanced with new or
clarified activities, or potential partners, based on public comments;
and
<bullet> A Boundary Adjustment Action Plan was added that calls for
a process to consider, analyze, and support future decision-making on
possible expansion of the boundary of the sanctuary, or expansion of
Monterey Bay National Marine Sanctuary (MBNMS), or designation of a new
sanctuary, to
[[Page 83558]]
protect resources to the north (up to the MBNMS boundary), offshore
(west of CHNMS), and within Morro Bay Estuary. Strategy RP-7 regarding
consideration of expanded conservation in Morro Bay Estuary, was
removed from the Resource Protection Action Plan and integrated into
the Boundary Adjustment Action Plan. Implementation of this action plan
would not in and of itself result in an expansion of the sanctuary
boundaries, but rather would set the stage for NOAA to gather
information to ultimately decide if pursuing such a change is
warranted. Any subsequent boundary adjustments would be guided by
Section 304 of the NMSA and would require a separate public process
under the NMSA and NEPA.
5. Final Environmental Impact Statement
In accordance with NEPA (42 U.S.C. 4321 et seq.) and the NMSA (16
U.S.C. 1434), NOAA has released a final EIS for the national marine
sanctuary designation in advance of the publication of this final rule.
The final EIS (<a href="https://sanctuaries.noaa.gov/chumash-heritage">https://sanctuaries.noaa.gov/chumash-heritage</a>) has been
revised based on public comment and interagency consultation. The final
EIS describes the purpose and need for the proposed action of
designating a national marine sanctuary in the coastal and offshore
waters of central California--the purpose of this regulatory action--
and evaluates the potential environmental consequences of the
designation of a national marine sanctuary; identifies a range of
alternatives, including the preferred alternative; includes a
comparison of the beneficial and adverse impacts among alternatives;
and provides an assessment of resources and uses in the area.
The final EIS analyzed the Initial Boundary Alternative (7,573
mi\2\; 5,718 nmi\2\; 152 miles of mainland coast), which generally
represented the boundary identified in the original nomination and in
the notice of intent (86 FR 62512) but with some adjustments described
in section 3.2 of the final EIS, and four alternatives that are smaller
than the Initial Boundary Alternative, including:
<bullet> Alternative 1, Bank to Coast, which focused management
from the Santa Lucia Bank to the coast (6,098 mi\2\; 4,605 nmi\2\; 152
miles of mainland coast);
<bullet> Alternative 2, Cropped Bank to Coast (5,553 mi\2\; 4,194
nmi\2\; 115 miles of mainland coast), largely copied Alternative 1,
however it excluded the waters from Cambria to Hazard Canyon Reef,
which would be the most direct path to onshore points of
interconnection at Morro Bay for the installation of subsea electrical
transmission lines from the Morro Bay WEA;
<bullet> Alternative 3, Diablo to Gaviota Creek, excluded more
(relative to Alternative 2) northern waters that BOEM had identified
for potential offshore wind development by removing the Diablo Canyon
Call Area from the boundaries of the proposed sanctuary, and focused
management on the area from the Diablo Canyon Call Area and nuclear
power plant south to Gaviota Creek (5,804 mi\2\; 4,382 nmi\2\; 98 miles
of mainland coast), but it included offshore waters west of the Santa
Lucia Bank (based on public comment, the boundary for Alternative 3 was
adjusted slightly smaller nearshore, south of Diablo Canyon Power Plant
(DCPP), to ensure its original intent could be achieved; see Section
III.B for more information);
<bullet> Alternative 4, Combined Smallest, excluded both the
western and northern offshore areas focusing management on the smallest
area (4,328 mi\2\; 3,268 nmi\2\; 98 miles of mainland coast) (based on
public comment, the boundary for Alternative 4 was adjusted slightly
smaller nearshore, south of DCPP, to ensure its original intent could
be achieved; see Section III.B for more information).
The final EIS also analyzed two small expansion areas:
<bullet> Sub-Alternative 5a, Morro Bay Estuary (2.5 mi\2\; 1.9
nmi\2\; 11 miles of mainland coast), would include the tidally-
influenced portions of Morro Bay Estuary and could be added to the
Initial Boundary Alternative or Alternative 1 (but would not be added
to alternatives 2-4);
<bullet> Sub-Alternative 5b, Gaviota Coast Extension (64 mi\2\; 48
nmi\2\; 18 miles of mainland coast), would include in the proposed
sanctuary the State waters from Gaviota Creek to the township of
Naples, a potential addition to any of the action alternatives.
The final EIS also included a ``No Action Alternative'' in which
NOAA would not designate the area as a national marine sanctuary. NOAA
also identified a Final Preferred Alternative in the final EIS (see
Section 5.4.9 in the final EIS and subsection 6 below). NOAA indicated
in the proposed rule and the draft EIS (e.g., sections 3.1.1 and 3.9.2)
that, based on public comments received on the draft designation
documents and NOAA's experience administering the National Marine
Sanctuary System, pursuant to NEPA and the Administrative Procedure
Act, NOAA may choose to select a new alternative in the final rule and
final EIS that is within the geographic and regulatory scope of these
alternatives considered in the draft EIS, and that is a logical
outgrowth of the proposed rule.
The final EIS evaluated and considered the potential impacts of
implementing the final regulations and conducting the various
management programs and initiatives described in the final management
plan.
The final EIS focused on eight issue areas: physical resources;
biological resources; commercial fishing and aquaculture; cultural
heritage and maritime heritage resources; socioeconomics, human uses,
and environmental justice; offshore energy; marine transportation; and
homeland security and Department of Defense (DoD) activities.
NOAA has provided a section in the final EIS (see Section 1.5) to
outline the substantive changes it made between the draft and the final
EIS. A brief summary of some of those changes include:
<bullet> Changing the preferred alternative;
<bullet> Minor changes to the boundary for Alternative 3 and
Alternative 4 south of Diablo Canyon Nuclear Power Plant to ensure the
intent behind those alternatives can be met;
<bullet> Excluding the small harbor area at Vandenberg Space Force
Base;
<bullet> Clarifying regulations to reflect that oil and gas
leaseholders are excepted from certain regulations, regardless of
whether they are producing oil and gas at the time of sanctuary
designation, to align with the scope of oil and gas rights under
existing leases or lease units;
<bullet> Changes to streamline and clarify the certification
process;
<bullet> Pulling together into one section in Chapter 4.6 the
information about submarine fiber optic cables that had been
distributed throughout the draft EIS; and
<bullet> Changes to various appendices to the EIS, including the
addition of Appendix A, Response to Comments.
6. Final Preferred Alternative
In accordance with NEPA (42 U.S.C. 4321 et seq.) and based on
public comments on the draft designation materials and further review,
NOAA has revised its Agency-Preferred Alternative from the draft EIS
and has selected its Final Preferred Alternative as Alternative 4, plus
Sub-Alternative 5b, plus a small area analyzed as part of the Initial
Boundary Alternative in the center of the Santa Lucia Bank, thereby
creating a straight line across the northern section of the new
sanctuary (see Figure 5-1a in the final EIS). The
[[Page 83559]]
Final Preferred Alternative covers 4,543 mi\2\ of coastal and ocean
waters, and spans 116 miles of California coast off the counties of San
Luis Obispo and Santa Barbara. The sanctuary spans a maximum distance
of 60 miles from shore, and reaches a maximum depth of 11,580 feet
below sea level. Describing the boundary in a clockwise fashion, the
Final Preferred Alternative starts along the coast two miles southeast
of the breakwater for the Diablo Canyon Power Plant marina, then runs
south along the mean high water line through San Luis Obispo County and
northern and western Santa Barbara County to the eastern end of the
Naples Marine Conservation Area on the Gaviota Coast. Along this
stretch, the harbor areas at Port San Luis and Vandenberg Space Force
Base near Point Arguello are excluded from the sanctuary. Offshore, the
boundary extends from the western edge of Channel Islands National
Marine Sanctuary, around important features like Rodriguez Seamount,
most of Arguello Canyon, and about half of the Santa Lucia Bank and
part of its escarpment. At a point approximately 55 miles offshore of
the Santa Maria River mouth, the boundary extends east 43 miles, then
due north for 12 miles to the point of origin south of the Diablo
Canyon Power Plant marina.
NOAA has evaluated the adverse and beneficial impacts from the
Initial Boundary Alternative, as well as the various alternatives that
considered smaller and larger boundaries. This evaluation has included
careful review of over 110,000 comments submitted on the draft
designation materials (see final EIS Appendix A, Response to Comments).
The Final Preferred Alternative provides significant beneficial impacts
on cultural heritage and maritime heritage resources through inclusion
of Sub-Alternative 5b along the Gaviota Coast. It provides other
beneficial but less-than-significant impacts in nearly all resource
areas, such as: physical resources; biological resources; commercial
fishing and aquaculture; cultural heritage and maritime heritage
resources; socioeconomics, human uses, and environmental justice; and
DoD and homeland security activities, largely through sanctuary
regulations that would limit the scale and scope of offshore
development activities and other human uses that could harm natural,
historical, and cultural resources. NOAA has considered the adverse
impacts of the Final Preferred Alternative and finds them to be an
acceptable balance between resource use and conservation of sanctuary
resources. This alternative has no significant adverse impacts and the
least amount of adverse but less-than-significant impacts on
development of offshore renewable energy, and telecommunications and
submarine fiber optic cables, as well as on marine transportation
(compared to the Initial Boundary Alternative and all other action
alternatives).
NOAA has reconsidered offshore wind industry concerns regarding the
sanctuary in the particular context of the Morro Bay leases, in
conjunction with existing infrastructure and competing uses of the
proposed sanctuary area (see Figure 5-2 in the final EIS), and in light
of the purposes and policies of the NMSA and Administration priorities.
Adopting the Final Preferred Alternative allows offshore wind
developers to complete siting and permitting for subsea electrical
transmission cables from the three Morro Bay offshore wind leases to
landing sites at both Morro Bay and Diablo Canyon without having to
route cables through the new sanctuary. The Final Preferred Alternative
is the most manageable boundary at this time and will allow NOAA to
focus on numerous core activities outlined in the management plan
without the need to focus resources on myriad permitting issues related
to offshore wind development. This avoids any perception of risk that a
sanctuary permit review of proposed cables could delay or otherwise
interfere with development of these renewable energy projects.
Additionally, accommodating cable routes to landing sites at both Morro
Bay and Diablo Canyon would allow space for the cable routes to make
siting adjustments (``micro siting'') to avoid sensitive resources or
certain seafloor features or hazards. See also the discussion in
subsection B to this section of the final rule and response to Comment
BO-1 in Appendix A for additional explanation of NOAA's identification
of the Final Preferred Alternative.
As explained further in subsection III.F of the final rule, NOAA
anticipates initiating a process, ``Phase 2,'' to consider establishing
additional sanctuary protection 5-7 years after designation consistent
with NOAA's timeline for the first management plan review process,
which is also a reasonable period of time for developers to obtain
permits and easements from other agencies for subsea electrical
transmission cables. This Phase 2 process would commence no later than
January 2032 and would inform NOAA's consideration of future options
for sanctuary protection of this area (see also the Boundary Adjustment
Action Plan in the final management plan). Any future sanctuary
designation or expansion could then recognize any existing cables or
other permitted structures as existing structures via a sanctuary
certification process.
Including the Gaviota Coast extension within the Final Preferred
Alternative would provide additional protection of important coastal
resources. It would include waters off three popular State beaches and
parks--Gaviota, Refugio, and El Capit[aacute]n--and would ensure that
Kashtayit and Naples State Marine Conservation Areas are entirely
within the sanctuary. It would include beaches, kelp forests, and rocky
and soft substrate reefs. As discussed in Section 4.5 of the final EIS,
that portion of the Gaviota Coast was home to numerous, large Chumash
villages at the time of European first contact. Ensuring conservation
of these resources is an important benefit to including this sub-
alternative in the Final Preferred Alternative. The continued presence
and use of offshore structures and development in this area, such as
pipelines and cables related to the Santa Ynez Unit oil and gas
development, could be accommodated via the certification process
included in the regulations. Repair, replacement, or removal of the
structures necessary for existing oil and gas production could be
considered via an ONMS authorization process.
In identifying the Final Preferred Alternative, NOAA considered
which boundary alternative would be most manageable while
simultaneously maximizing the principal purposes for the proposed
sanctuary. The Final Agency-Preferred Alternative includes numerous
coastal, nearshore, and offshore living resources and habitats of
national significance, including a large portion of the Santa Lucia
Bank, most of Arguello Canyon and all of the Rodriguez Seamount. The
Final Preferred Alternative allows NOAA to focus its management on some
of the key areas historically important to the SYBCI and other Chumash
bands and natural resources important to their heritage.
The draft EIS and the proposed rule provided notice to the public
that, based on public comments received on the draft designation
materials and NOAA's experience administering the national marine
sanctuary program, pursuant to NEPA and the Administrative Procedure
Act, NOAA may choose to identify an alternative in the final rule and
final EIS that is within the geographic and regulatory scope of the
alternatives considered in the draft EIS and that is
[[Page 83560]]
a logical outgrowth of the proposed rule. Alternative 4 and Sub-
Alternative 5b, plus the small additional area in the center of the
Santa Lucia Bank (and part of the Initial Boundary Alternative), and
impacts associated with these alternatives, are thoroughly discussed in
the draft EIS and summarized in the proposed rule. NOAA received public
comments on these Alternatives that it carefully considered in
identifying the Final Preferred Alternative.
II. Terms of Designation for Chumash Heritage National Marine Sanctuary
Section 304(a)(4) of NMSA as amended, 16 U.S.C. 1434(a)(4),
requires that the terms of designation be described at the time a new
sanctuary is designated, including the geographic area to be included
within the sanctuary, the characteristics of the area that give it
conservation, recreational, ecological, historical, research,
educational, or aesthetic value, and the types of activities that will
be subject to regulation to protect those characteristics.
The following represents the terms of designation:
Preamble
Under the authority of the NMSA, approximately 4,500 mi\2\ (3,400
nmi\2\) of the coast of central California's San Luis Obispo and Santa
Barbara counties are hereby designated as a National Marine Sanctuary
for the purpose of providing long-term protection and management of the
ecological, cultural, and historical resources and the conservation,
recreational, scientific, educational, and aesthetic qualities of the
area.
Article I: Effect of Designation
The NMSA authorizes the issuance of such regulations as are
necessary and reasonable to implement the designation, including
managing and protecting the ecological, cultural, and historical
resources and the conservation, recreational, scientific, educational,
and aesthetic qualities of Chumash Heritage National Marine Sanctuary
(the ``Sanctuary''). Section 1 of article IV of these terms of
designation lists those activities that may have to be regulated on the
effective date of designation, or at some later date, in order to
protect Sanctuary resources and qualities. Listing an activity does not
necessarily mean that it will be regulated. However, if an activity is
not listed it may not be regulated, except on an emergency basis,
unless section 1 of article IV is amended by the same procedures by
which the original Sanctuary designation was made.
Article II: Description of the Area
Chumash Heritage National Marine Sanctuary covers approximately
4,500 mi\2\ (3,400 nmi\2\) in central California. The Sanctuary's
shoreline is approximately 116 miles long along the mainland, and 132
miles long when also counting the shoreline of offshore rocks and
islands. The boundary begins at the mean high water line approximately
two miles southeast of Diablo Canyon marina in San Luis Obispo County,
and extends to the south along the mean high water line to
approximately two miles east of Dos Pueblos Canyon near the township of
Naples along the Gaviota Coast, in Santa Barbara County. The boundary
then shifts due south offshore to the State waters line, then to the
west along the State waters line to approximately the outfall of
Gaviota Creek, then in a southwest direction along the western end of
Channel Islands National Marine Sanctuary, southward to include
Rodriguez Seamount and shifting to the northwest in an arc reaching
approximately 60 miles due west of Purisima Point and, at a distance
approximately 55 miles west of the Santa Maria River mouth, it turns
due east for 43 miles then due north for 12 miles to the point of
origin at mean high water line at the coastline approximately two miles
southeast of the Diablo Canyon marina. Port San Luis and the small
harbor area at Vandenberg Space Force Base are not included in the
Sanctuary. The Sanctuary includes offshore waters and seafloor features
such as Rodriguez Seamount, Arguello Canyon, and large portions of the
Santa Lucia Bank. The boundary coordinates are defined by regulation
(see 15 CFR 922.230 and appendix A to 15 CFR part 922, subpart V).
Article III: Special Characteristics of the Area
For well over 10,000 years, First Peoples along North America have
resided on the coast and in inland valleys adjacent to central
California. Caves and other village sites at the nearby Channel Islands
indicate occupation in this region as much as 13,000 years before
present. At that time, due to glaciation at northern latitudes, the sea
level was as much as 10 miles offshore from the present coastline.
Paleoshorelines may exist in this area that could provide further
evidence of early human occupation. The Native Americans who live in
this coastal area today, the Chumash and Salinan, can trace generations
of family lineages in this region, that, when coupled with other
historical accounts and archaeological data, show this coast and ocean
area have supported their people, cultures, and heritage for thousands
of years.
The special characteristics of the coast east of Point Conception,
consisting of a south-facing coast with a channel sheltered by offshore
islands, allowed Chumash to develop and make use of the plank canoe,
called a ``tomol,'' for fishing and trade with other Chumash groups.
Chumash villages north of Point Conception could not as easily make use
of the plank canoe in the rougher waters, but relied on the abundance
of shellfish in this area and reed canoes, also used by Salinans.
Between the Santa Maria River through the Gaviota Coast, 14 Chumash
villages existed at the time of contact with Europeans, nearly 500
years ago. The largest Chumash village on the California coast at that
time was ``Mikiw,'' located on the west bluff of Dos Pueblos Canyon.
Numerous sites exist further north along the Sanctuary's coast, many on
private lands and undisclosed. Most of the inhabited sites were located
at the mouths of rivers or along the seashore where there was an
abundance of food. The range of sites documented along or near the
Sanctuary's coast includes rock art, shrines, village sites, camp
sites, cemeteries, organic remains, evidence of trade systems, and
evidence of various forms of subsistence, including hunting, fishing,
and extraction.
Serial use and development along this coastline, beginning with
Indigenous Peoples, then Spanish exploration and occupation, Russian
fur trading, ranching and the trade for hides and tallow, discovery of
gold, commercial fishing, and onshore and offshore oil and gas
development have all had a hand in shaping this region's coast and
human use of resources. All of these uses have been dependent on marine
transportation, and as a result over 200 ship and aircraft wrecks are
recorded in this area, including several of national significance such
as the Yankee Blade. Commercial fishing for numerous abundant fish
stocks and commercial fishermen are also part of the rich maritime
heritage in the central coast region.
The natural resources of the ocean have been a principal element of
most of the human occupation and exploitation of the region. Strong and
persistent coastal winds drive upwelling, an oceanographic process
critical to the highly productive marine ecosystem. Large kelp forests,
vast sandy beaches, rocky shorelines, shallow and deep reefs, and
coastal wetlands are interconnected, co-dependent biological
communities
[[Page 83561]]
prominent in this region. Important, large-scale features include the
Santa Lucia Bank, a highly productive, approximately 1,000-square mile
area about half of which is within the Sanctuary, and thriving deep sea
communities at Rodriguez Seamount and in Arguello Canyon. These
productive waters complement other protected portions of the California
Current by serving as critical foraging habitat for huge populations of
shearwaters from New Zealand, humpback whales born offshore of Central
America, leatherback sea turtles that migrate from and back to
Indonesian islands, and albatross from Hawaii. More sedentary, local
species depend on healthy communities in the Sanctuary, including the
endangered snowy plover and black abalone, and commercially-important
fish species like Dungeness crab, sablefish, spot prawn, squid, salmon,
and lingcod. An estimated 33 species of marine mammals are found in the
area, 18 of which can be seen on a regular basis. The Sanctuary is
considered a seabird hot spot, with a higher richness of bird species
than other sanctuaries offshore California. At least 400 species of
fish have been documented in the area, which is also a higher richness
of species than in nearby areas, likely because the Sanctuary includes
warmer waters south and east of the ecological transition zone around
Point Conception--Point Arguello and colder waters to the north.
The nationally significant ecological transition zone in the area
around Point Conception--Point Arguello, where species more common in
sub-tropical waters to the south meet with species more common in
colder temperate waters to the north, is a central feature of the
Sanctuary. The northern range of many warmer water species and the
southern range of many colder water species meet in the area between
Point Conception and Point Arguello. Increasing ocean temperatures and
other impacts from climate change intensify the need to study
biogeographic shifts in this area and affirm the importance of
protecting the habitats on which these species depend.
Rodriguez Seamount, 45 mi southwest of Point Conception, formed 10-
12 million years ago through volcanic activity. It rises more than a
mile above the seafloor to a relatively shallow depth of around 2,000
ft. below sea level. Scientists consider it to be relatively rare in
that it may once have been an island, rising to possibly 200 ft. above
sea level; due to sea level rise and seafloor subsidence, the seamount
is now fully submerged. From its time as an island, it has remnants of
sandy beach features and from its time as a seamount, it has large
coral and sponge colonies. Preliminary studies indicate a high
percentage of invertebrate species as well as fish species found on
Rodriguez Seamount that are not found on other nearby seamounts. Some
surveys have uncovered substantial aggregations of coral colonies, with
large individuals likely decades old, indicating a low level of
disturbance to date. A special management zone for Rodriguez Seamount
has been designated by Sanctuary regulations to allow for special
protection in the water column 500 ft. above the seamount and to
complement regulations adopted separately under the Magnuson-Stevens
Fishery Conservation and Management Act to protect benthic habitats.
The area contains dramatic coastlines consisting of rocky
shorelines, large bluffs, and sweeping sandy beaches. Other than an
approximately 10-mile stretch of urban development along the coast from
Port San Luis through Oceano, most of the 116 miles of Sanctuary
coastline is undeveloped due to State and county park ownership, a
large stretch owned by the U.S. Government as a military installation,
and private landholdings of large and small ranches or dispersed
single-family dwellings. This lack of development creates a sense of
wildness and highly-valued aesthetics of a natural coastal setting
worthy of national marine sanctuary designation.
Article IV: Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation, including
prohibition, as may be necessary to ensure the protection and effective
management of the ecological, cultural, historical, conservation,
recreational, scientific, educational, or aesthetic resources or
qualities of the area:
a. Exploring for, developing, or producing oil, gas, or minerals
(e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous
ores, or any other solid material or other physical matter of
commercial value) within the Sanctuary;
b. Discharging or depositing, from within or into the boundary of
the Sanctuary, or from beyond the boundary of the Sanctuary, any
material or other matter;
c. Taking, removing, moving, catching, collecting, harvesting,
feeding, injuring, destroying, attracting, possessing, or causing the
loss of, or attempting to take, remove, move, catch, collect, harvest,
feed, injure, destroy, attract, or cause the loss of, a marine mammal,
sea turtle, bird, historical resource, or other Sanctuary resource;
d. Drilling into, dredging, or otherwise altering the submerged
lands of the Sanctuary; or constructing, placing, or abandoning any
structure, material, or other matter on or in the submerged lands of
the Sanctuary;
e. Flying a motorized aircraft above the Sanctuary;
f. Operating a vessel (i.e., water craft of any description) within
the Sanctuary;
g. Aquaculture or kelp harvesting within the Sanctuary;
h. Introducing or otherwise releasing from within or into the
Sanctuary an introduced species; and,
i. Interfering with, obstructing, delaying, or preventing an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the NMSA or any regulation or permit
issued under the NMSA.
Listing an activity here means the Secretary of Commerce can
regulate the activity, after complying with all applicable regulatory
laws, without going through the designation procedures required by
paragraphs (a) and (b) of section 304 of the NMSA, 16 U.S.C. 1434(a)
and (b). No term of designation issued under the authority of the NMSA
may take effect in California State waters within the Sanctuary if the
Governor of California certifies to the Secretary of Commerce that such
term of designation is unacceptable within the review period specified
in the NMSA.
Section 2. Emergencies
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or to minimize the
imminent risk of such destruction, loss, or injury, any and all
activities, including those not listed in section 1, are subject to
immediate temporary regulation, including prohibition.
Article V: Effect on Leases, Permits, Licenses, and Rights
Pursuant to section 304(c)(1) of the NMSA, no valid lease, permit,
license, approval, or other authorization issued by any Federal, State,
or local authority of competent jurisdiction, or any right of
subsistence use or access, may be terminated by the Secretary of
Commerce or designee as a result of this designation or as a result of
any Sanctuary regulation if such authorization or right was in
existence on the effective date of this designation.
[[Page 83562]]
The Secretary of Commerce or designee, however, may regulate the
exercise (including, but not limited to, the imposition of terms and
conditions) of such authorization or right consistent with the purposes
for which the Sanctuary is designated.
In no event may the Secretary or designee issue a permit
authorizing, or otherwise approve: (1) The exploration for, development
of, or production of oil, gas, or minerals within the Sanctuary; (2)
the discharge of primary-treated sewage except for regulation, pursuant
to section 304(c)(1) of the Act, of the exercise of valid
authorizations in existence on the effective date of Sanctuary
designation and issued by other authorities of competent jurisdiction;
or (3) the disposal of dredged material within the Sanctuary other than
at sites authorized by the U.S. Environmental Protection Agency prior
to the effective date of designation. The disposal of dredged material
does not include the beneficial use of dredged material. Any purported
authorizations issued by other authorities after the effective date of
Sanctuary designation for any of these activities within the Sanctuary
shall be invalid.
Article IV does not authorize the direct regulation of lawful
fishing activities (commercial and recreational) within the Sanctuary,
such as setting catch quotas, establishing spatial closures for
fishing, or setting fishing seasons. However, all activities listed in
article IV could apply to a person engaged in the act of fishing, such
as, but not limited to, vessel operations, wildlife disturbance,
discharges, introduction of an introduced species, or disturbance of
cultural or historical resources. Aquaculture and kelp harvesting, by
contrast, are subject to direct regulation under these terms of
designation. Fishing in the Sanctuary may be regulated by other Federal
or State authorities of competent jurisdiction, and designation of the
Sanctuary shall have no effect on any fishery management regulation,
permit, or license issued thereunder.
Article VI: Alteration of This Designation
The terms of designation, as defined under section 304(a)(4) of the
NMSA, may be modified only by the same procedures by which the original
designation is made, including public hearings, consultations with
interested Federal, State, Tribal, regional, and local authorities and
agencies, review by the appropriate congressional committees, and
approval by the Secretary of Commerce, or his or her designee.
[End of terms of designation]
III. Changes From Proposed to Final Rule
Based on public comments received between August 25 and October 25,
2023, NOAA's responses to those comments, internal deliberations,
interagency consultations, and Tribal consultation, NOAA has made the
following changes to the proposed rule and, where appropriate,
corresponding changes to the final EIS and management plan.
A. Sanctuary Boundary and Preferred Alternative
NOAA has revised its Agency-Preferred Alternative from the draft
EIS and now identifies its Final Preferred Alternative as Alternative
4, plus Sub-Alternative 5b, plus a small area analyzed as part of the
Initial Boundary Alternative in the center of the Santa Lucia Bank,
thereby creating a straight line across the northern section of the new
sanctuary (see Figure 5-1a in the final EIS). The reasons for selecting
this as the Final Preferred Alternative are discussed in detail in
Section I, subsection C.6 of this final rule, Section 5.4.9 in the
final EIS, and in various responses to comments, in particular response
to Comment BO-1 (see Appendix A of the final EIS).
B. Changes to Boundaries for Alternatives 3 and 4, and Exclusion of the
Harbor Area at Vandenberg Space Force Base
An original primary purpose of Alternative 3 (and Alternative 4,
which is a composite smallest boundary that omits the ocean areas
excluded from either Alternative 1 or 3) was to exclude areas from the
sanctuary identified or potentially necessary for offshore wind
development, specifically an additional potential wind energy area
(WEA) in Federal waters and corridors to allow subsea electrical
transmission cables to connect to both Morro Bay and Diablo Canyon grid
connections without passing through the sanctuary. Following public
comment on the draft designation materials, pursuant to NEPA, minor
alterations were made to the nearshore boundary of Alternative 3 (and
Alternative 4) to ensure the intent of this alternative could be met.
Concerns that drove this change include consideration of the following
clarifying information received in public comments: the need for access
to the Diablo Canyon grid connections and necessary landing site
sufficient to allow for gentle turns (rather than sharp angles) for
cables; the ability to cross existing submarine fiber optic cables at
roughly right angles; regulatory challenges routing cables through the
special marine protected areas in State waters; space to make minor
siting adjustments (``micro siting'') to cable routes to avoid
sensitive resources or certain seafloor features or hazards; and space
to achieve the offshore wind industry's intent for the distance between
cables to be at least three times the water depth, in line with
recommendations of the International Cable Protection Committee. The
resulting changes to the boundary include shifting the boundary that
first intercepts the coast in the north one mile to the southeast so
that it originates now about two miles southeast of the Diablo Canyon
marina breakwater. The boundary also is shifted due south from this
coastal point and then due west to create more space in which cables
could be planned and permitted without needing to pass through the
sanctuary. This same shift was made for Alternative 4. In both
alternatives, these shifts reduce the potential size of the sanctuary
by 148 square miles, and reduce the total distance along the coast by
one mile. These changes are consistent with the intent of these
Alternatives and with the purposes and goals of the draft designation
materials. See maps in Chapter 3 of the final EIS, and see sections 3.5
and 3.6 of the final EIS for more information on why these boundary
adjustments constitute minor variations qualitatively within the
geographic and regulatory scope of alternatives assessed in the draft
EIS.
NOAA also intended to exclude from the sanctuary the waters of all
harbors, which typically host and require activities that can be
inconsistent with sanctuary regulations. Morro Bay, the private marina
at Diablo Cove and Port San Luis were all excluded in boundary
alternatives. NOAA inadvertently failed to exclude the military harbor
area at Vandenberg Space Force Base from sanctuary alternatives. The
exclusion area would be roughly 0.1 square miles, and would be defined
by the breakwater at the harbor area, and a line 0.1 mile due east, and
then turning due north until it intercepts the MHWL at the coast. NOAA
is excluding this small area from the final sanctuary boundary. This is
a technical correction that is consistent with the purposes and goals
of the draft designation materials. See maps in Chapter 3 of the final
EIS, and see Section 3.2.1 of the final EIS, footnote 3, for more
information.
C. Terms of Designation
NOAA made changes to the final terms of designation based on public
comment and responses to those
[[Page 83563]]
comments, changes to other designation materials to ensure consistency,
and its final actions on this designation. First NOAA modified Article
II to describe the area being designated in conformance with the Final
Preferred Alternative (rather than the Agency-Preferred Alternative
from the draft phase). NOAA made changes to Article III to more
accurately describe the Indigenous communities' historical uses of the
area, including the number and general area of known or suspected
historical village sites. In that section, NOAA has also clarified that
about half of the Santa Lucia Bank will be in the final boundary,
rather than nearly all of it as described in the proposed rule. In
Article V, NOAA is removing a clause that could create confusion
regarding its limitation on future permit decisions, and in particular
removing unnecessary language about permitting existing oil and gas
activities. In this section of the Terms of Designation in the proposed
rule, NOAA had inadvertently included language from the regulations
describing existing oil and gas activities that would not require a
permit. However, Article V mandates that certain activities can not
receive a permit for any reason, and one of those activities is oil,
gas or mineral development, new or existing. The language explaining
what activity constitutes existing oil and gas development, that would
be exempt from permitting, is irrelevant in this section and has been
removed. Were that language included in the final rule, it would imply
NOAA intends to issue permits for existing oil and gas production, and
it does not; rather, it is excepting existing oil and gas production
from sanctuary permitting. Note, however, that construction, repair,
replacement, or removal of existing oil and gas infrastructure that
would disturb the submerged lands or potentially lead to discharges
would still require an ONMS authorization or other approval. Lastly,
NOAA is adding clarification in this section that NOAA's use of the
term ``fishing'' means both commercial and recreational fishing.
D. Final Regulations
NOAA's intent with designation of this sanctuary has been to allow
existing oil and gas production to continue after sanctuary
designation. Based on public comments and interagency discussion, NOAA
is clarifying the exception to the prohibition on oil, gas and mineral
exploration, development, and production (922.232(a)(1)) to reflect
that leaseholders can continue to develop oil and gas resources as
allowed under existing leases and lease units. The language in the
proposed rule had limited this exception to production from reservoirs
under production from Platforms Irene and Heritage at the time of
sanctuary designation. The revised language will now read: ``(1)
Exploring for, developing, or producing oil, gas, or minerals within
the Sanctuary, except for oil and gas production, which includes well
abandonment, pursuant to leases or lease units in effect upon the
effective date of Sanctuary designation''. This change ensures that any
reservoir that was temporarily shut in at the time of designation, or
any reservoir not yet developed but within a lease or lease unit in
effect on the date of Sanctuary designation could still be developed
pursuant to such lease or lease unit and meet this exception to the
regulatory prohibition on oil, gas or mineral development in the
sanctuary.
NOAA has also made a technical clarifying revision to 15 CFR
922.232(a)(2)(iii) to more accurately describe the nature of exceptions
to this regulation. This change is a minor conforming amendment
consistent with the intent, purposes, and policies of the proposed
rule.
Because the prohibition on discharges within or into the sanctuary
(922.232(a)(2)(i)) has similar language to allow through regulatory
exception discharges into reservoirs that are incidental and necessary
to oil and gas production, NOAA revised the exception to this discharge
prohibition to now read: ``H. Discharges incidental and necessary to
oil and gas production within or into reservoirs contained within
existing leases or lease units in effect on the effective date of
Sanctuary designation from Platform Irene or Platform Heritage,
including well abandonment''. 15 CFR 922.232(a)(2)(i)(H). This
clarification ensures sanctuary designation will not require oil and
gas developers to seek sanctuary approval for discharges into
reservoirs incidental and necessary to oil and gas development allowed
under existing leases or lease units. Discharges from platforms or
pipelines into the sanctuary are not covered by this exception and
would require sanctuary review and approval; existing, permitted
discharges at the time of sanctuary designation can be certified as an
existing activity.
The prohibition on disturbance of the submerged lands of the
sanctuary (922.232(a)(3)) also has an exception to describe existing
oil and gas development. Consistent with other exceptions, NOAA revised
the exception to allow for drilling, maintaining, or abandoning a well
necessary for purposes related to oil and gas production pursuant to
existing leases or lease units in effect on the effective date of
Sanctuary designation from Platform Irene or Platform Heritage. 15 CFR
922.232(a)(3)(vi). These changes reflect technical corrections and
clarifications, based on discussions with the expert agency (Department
of the Interior) that are consistent with the proposed rule and that
reflect the intended scope of the proposed rule.
In response to public comment and to implement technical and
procedural corrections and clarifications consistent with the purposes
of the proposed rule, NOAA made changes to the Certification Process
(922.234) to allow existing, permitted activities in effect at the time
the sanctuary is designated. These changes include clarifying that
applicants/permit holders have 120 days after the effective date of
sanctuary designation to notify NOAA regarding any Federal-, State- or
locally-issued lease, permit, license, approval, other authorization or
right of subsistence use or access. NOAA also clarified that when
considering imposing any conditions on a certification, the ONMS
Director may seek and consider the views of other persons or entities,
but will not hold a public hearing. NOAA added a clause to clarify that
the ONMS Director can amend, suspend or revoke the certification when
the underlying permit is amended, suspended or revoked, but NOAA also
removed language that allowed an already-issued certification to be
reopened at any time. While these revisions constitute changes from
certification procedures at some other sanctuary sites, they have been
made in response to site-specific needs and concerns, including the
anticipated number of certification requests. NOAA will coordinate with
the Federal, State or local agency that issued an underlying permit
should concerns arise in the future about an existing activity.
Based on interagency coordination, NOAA is including a section of
the regulations describing two memorandums of agreement NOAA will enter
into for interagency coordination to address regulatory or statutory
issues--introduced species aquaculture projects and the Sunken Military
Craft Act. See Section IV, subsection H of this final rule for a
description of these memoranda of agreement. This addition is a
clarification of intended agency procedures on coordination and
constitutes a minor technical and procedural update that is consistent
with the purposes and policies of the proposed rule.
[[Page 83564]]
E. Finalizing the Name for the Sanctuary
The draft designation materials indicated that the name for the
sanctuary was not yet final and would depend on the final boundary
selected, among other factors. NOAA's assessment has shown it is
reasonably and historically accurate to consider the final boundary
identified for this sanctuary, extending from just south of Diablo
Canyon in the north through most of the Gaviota Coast, as lying along
the coastline that has historically been considered the ancestral lands
of Chumash Peoples. Given the extensive public comment in support of
the name ``Chumash Heritage,'' and given that this boundary is least
likely to overlap with ancestral lands and waters of Salinan Peoples,
NOAA is designating this sanctuary with the name ``Chumash Heritage
National Marine Sanctuary.''
F. Phase 2 for Considering Sanctuary Conservation in This Region
NOAA is adding this section to the final rule to express the
importance of and its commitment to ``Phase 2,'' to evaluate and
consider establishing additional sanctuary protection 5-7 years after
designation consistent with NOAA's timeline for the first sanctuary
management plan review process. As noted elsewhere, the selection of
the Final Preferred Alternative, while providing significant beneficial
impacts for marine conservation, is the boundary least likely to create
potential regulatory uncertainty perceived by offshore wind developers
because they are not expected to require sanctuary permits for subsea
electrical transmission cables to shore. NOAA anticipates initiating
the review process to consider expanding sanctuary protections 5 to 7
years after designation consistent with NOAA's timeline for the first
management plan review process. This timeframe would provide a
reasonable amount of time for offshore wind developers to obtain
permits and easements from other agencies to develop their subsea
electrical transmission cables, and possibly install some of those
cables. NOAA has included a Boundary Adjustment Action Plan in the
final management plan that envisions commencing, in January 2032,
formal consideration of expanding sanctuary conservation for resources
north of the current boundary up to the MBNMS boundary, west of the
current boundary to include areas within the Initial Boundary
Alternative, and into Morro Bay Estuary. Sanctuary conservation in the
future, if warranted, could involve expanding CHNMS boundaries,
shifting the boundaries for MBNMS, or designating a new sanctuary, or
some combination of these. A future designation or expansion would
require a separate public process under the NMSA and NEPA.
NOAA acknowledges that some important studies may need to begin
soon after CHNMS designation to help collect information on the
nationally-significant resources in these areas, the potential threats
to those resources, and the appropriateness of a national marine
sanctuary to address those threats. As resources are available, NOAA
will begin those studies and characterizations.
This approach allows NOAA to work more closely with the Salinan and
northern Chumash Tribes and Indigenous communities, and other
interested parties, on various conservation options for the resources
in this region. NOAA considers these steps and other potential actions
to be part of ``Phase 2 Sanctuary Conservation'' for this region.
IV. Summary of Final Regulations
A. Adding New Subpart V
NOAA is amending 15 CFR part 922 by adding a new subpart (subpart
V) that contains site-specific regulations for the sanctuary. This
subpart includes the boundary, contains definitions of common terms
used in the new subpart, identifies prohibited activities and
exceptions, and establishes procedures for certification of existing
uses and permitting otherwise prohibited activities.
B. Sanctuary Boundary
NOAA's designation of Chumash Heritage National Marine Sanctuary
consists of an area of approximately 4,500 square miles (mi\2\) (3,400
square nautical miles (nmi\2\) of coastal and ocean waters along the
central coast of California and the submerged lands thereunder. The
northern boundary commences approximately two miles southeast of the
Diablo Canyon marina at the mean high water line (MHWL) and extends for
116 miles south along the MHWL through the remainder of San Luis Obispo
County coast, excluding Port San Luis (at the port's boundary for
International Regulations for Preventing Collisions at Sea (COLREGS)
demarcation line (33 CFR 80.1130), and then further south and east to
include the coast of western Santa Barbara County, excluding the small
harbor area at Vandenberg Space Force Base (as defined by the existing
breakwater to a point 0.1 mile due east of the end of the breakwater
and then due north to the MHWL at the shoreline), to approximately two
miles east of Dos Pueblos Canyon along the Gaviota Coast near the
township of Naples. The boundary then shifts due south offshore to the
State waters line, to the west along the State waters line to
approximately Gaviota Creek, then in a southwest direction along the
western end of CINMS, southward to include Rodriguez Seamount and
shifting to the northwest in an arc reaching approximately 60 miles due
west of Purisima Point and, at a distance approximately 55 miles west
of the Santa Maria River, it turns due east for 43 miles and then due
north for 12 miles to the point of origin at MHWL at the coastline
approximately two miles southeast of Diablo Canyon marina.\4\
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\4\ The boundary would initiate approximately two miles
southeast of the breakwater at the private marina at Diablo Canyon
Power Plant at MHWL. The detailed legal boundary description is
included in Sec. 922.230 and the coordinates are located in 15 CFR
part 922, subpart V, appendix A.
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C. Definitions
This rule incorporates and adopts common terms defined in the
national regulations at 15 CFR 922.11. In addition, NOAA is including
two site-specific definitions.
NOAA is defining ``beneficial use of dredged material'' to
distinguish between suitable dredge material that is discharged into
the sanctuary for the purpose of protecting or restoring habitat of the
sanctuary, which could be permitted, versus disposal of dredge material
at a new disposal site within the sanctuary for purposes other than
habitat protection or restoration, which would not be permittable.
Dredged material eligible for this definition can come from a public
harbor adjacent to the sanctuary, which is Port San Luis. Beneficial
use of dredged material is not disposal of dredged material.
NOAA is defining the ``Rodriguez Seamount Management Zone'' to
define the special marine area immediately on top of, around, and
adjacent to the Rodriguez Seamount. This definition is necessary
because NOAA is including a regulation that specifically prohibits the
collection, or other injury, of any sanctuary resource below 1,500 ft.
water depth in this area from any activity other than from lawful
fishing. This corresponds to the water depth about 500 ft. above the
very top of the seamount. Existing fishing regulations, separately
established under the Magnuson-Stevens Fishery Conservation and
Management Act (MSA), already restrict bottom trawling in much of the
Rodriguez Seamount Management Zone. This special area,
[[Page 83565]]
entirely within the boundaries of the sanctuary, is bounded by geodetic
lines connecting a heptagon generally centered on the top of the
Rodriguez Seamount, and consists of approximately 570 mi\2\ (430
nmi\2\) of ocean waters and the submerged lands thereunder. The
northeast corner of this zone is located approximately 27 miles
southwest of Point Conception off the coast of Santa Barbara County.
Exact coordinates for the Rodriguez Seamount Management Zone boundary
are provided in appendix B to subpart V.
D. Prohibited and Regulated Activities
NOAA is supplementing and complementing existing management of this
area by adopting the following regulations in Sec. 922.232 to protect
sanctuary resources and qualities.
1. Prohibition on Exploring for, Developing, or Producing Oil, Gas, or
Minerals
The central California coast has hosted oil and gas development for
over 100 years and the area being designated as a national marine
sanctuary has hosted oil and gas development for nearly 40 years. There
have been oil spills from platforms and pipelines in this area, and
spills from onshore development and onshore pipeline transportation,
all of which have caused significant environmental harm. Additional
information about these spill incidents is contained in section 4.7 of
the final EIS. NOAA is prohibiting exploration, development, and
production of offshore oil and gas resources within the sanctuary to
reduce the risk of offshore spills from oil and gas development in the
area. Oil and gas production pursuant to existing leases and lease
units in effect on the effective date of sanctuary designation,
specifically from Platform Irene (as part of the Point Pedernales Unit
development) and Platform Heritage (as part of the Santa Ynez Unit
development), including well abandonment, and including transportation
in pipelines of product to shore, would be allowed to continue after
sanctuary designation until those leases and lease units are
terminated.
Constructing and operating offshore platforms and pipelines also
can cause direct impacts on natural, historical, and cultural
resources, particularly from disturbance to the seafloor and benthic
species. Those impacts would also be prevented because this regulation
would not allow new oil and gas exploration, development, or
production. Any construction, repair, replacement, or removal of
existing oil and gas infrastructure that would disturb the submerged
lands or potentially lead to discharges would require an ONMS
authorization or other approval.
Most if not all of the platforms and pipelines within the sanctuary
are likely to be decommissioned and removed within 10 years of
sanctuary designation.\5\ The prohibition on new oil and gas
development would not preclude the removal of these structures and
restoration, if necessary, or any damage caused by removal, although a
sanctuary permit, authorization, or other approval would be required in
order to allow disturbance to the submerged lands during
decommissioning, removal, and restoration activities. If any structures
were proposed to be left behind after facilities removal, NOAA would
need to approve that structure through a sanctuary permit or
authorization. NOAA would be integrally involved in the planning and
conduct of such decommissioning, removal, and restoration activities
for structures within the sanctuary.
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\5\ Final Programmatic EIS for Oil and Gas Decommissioning
Activities on the Pacific OCS (BSEE & BOEM, 2023)
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This prohibition would also not allow for development, including
exploratory activities, of any seafloor minerals. While seafloor mining
has not been proposed in this area, this regulation would ensure that
the disturbance to benthic habitat and species likely to result from
seafloor mining would not occur in the sanctuary.
2. Prohibition on Discharges
This prohibition on discharges (NOAA uses ``discharge'' in this
rule to refer to both ``discharge and deposit'' as used in the
regulation) has three main elements: prohibition on any discharge
within or into the sanctuary; discharge from beyond the sanctuary
boundary that subsequently enters and injures sanctuary resources; and
discharges from cruise ships. Each is explained in separate paragraphs
below. All three sub-elements of this prohibition are consistent with
discharge prohibitions in adjacent national marine sanctuaries.
The prohibition on discharges within or into the sanctuary is in
recognition that various substances can be discharged from vessels or
from infrastructure or individuals along the shoreline that can harm
sanctuary resources or quality. The discharge regulations bolster
existing authorities such as the Clean Water Act (CWA; 33 U.S.C. 1251
et seq.) that provide some, yet incomplete, protection of resources
from the adverse effects of discharges. Establishing a cohesive
regulatory framework across nearshore and offshore waters of the
sanctuary will provide value to boaters and others using sanctuary
waters. Section 4.2.1 of the final EIS contains a detailed discussion
of water quality and discharges that constitute key sources of water
pollution in the area, and a brief summary of key points is provided
here. While sewage is largely well-regulated from onshore facilities,
and while the EPA has established a No Discharge Zone within three
miles of the California coastline, NOAA's prohibition will complement
this regulatory framework and apply throughout the entire geographic
region of the sanctuary; it will also provide additional enforcement
authority to protect sanctuary resources. Moreover, NOAA will commit
staff time towards education and outreach to help promote compliance
with this important regulation. Furthermore, the prohibition would
extend throughout the sanctuary to ensure discharge of sewage from
vessels does not cause acute or cumulative impacts on natural resources
or water quality.
Oil discharged from vessels or from shore can cause acute toxicity
in organisms, and can foul feathers of seabirds, leading to illness or
death. Discharging other debris from vessels, by accident or on
purpose, can lead to long-term impacts on resources. A chronic
accumulation of plastics in marine ecosystems, for instance, can lead
to an accumulation of plastic in marine organisms including those that
are eventually ingested by humans.
NOAA is including some exceptions for this prohibition consistent
with those exceptions at adjacent sanctuaries. For instance, NOAA is
excepting discharge of fish, fish parts, chumming materials, or bait
used in and resulting from lawful fishing activities within the
sanctuary. NOAA is also excepting discharge of sewage waste from a
vessel that has been treated by a Type I or Type II marine sanitation
device, as these systems provide effective treatment for sewage as to
mitigate any impact their discharge can have on marine resources.
Normal vessel operations can also involve washing down the deck or the
anchor, which is excepted provided the wash down qualifies as ``clean''
per the definition at 15 CFR 922.11. There are also normal discharges
from operating motorized vessels that are excepted, such as clean
vessel engine cooling water, clean vessel generator water, and clean
bilge water, as well as exhaust from an engine or generator. Provided
that these discharges are clean, they may be discharged within or into
the sanctuary. The more common threat to sanctuary
[[Page 83566]]
resources can come from oily bilge water, soiled by oil that drips or
leaks into an engine compartment. Oily bilge water may not be
discharged into the sanctuary under this prohibition, and would have to
be disposed of at onshore pumpout stations. NOAA will coordinate with
harbormasters to ensure existing onshore pumpout facilities remain
operable, and, if necessary, to explore if other facilities are needed.
NOAA is excepting the disposal of dredged material within the
sanctuary at disposal sites approved by the EPA prior to designation.
The sanctuary boundaries do not include the two known EPA-approved
dredge disposal sites used for Morro Bay dredging. NOAA is not aware of
any other such sites within the sanctuary. Nonetheless, this exception
would allow an agency to demonstrate, after sanctuary designation, that
a disposal site approved by the EPA existed prior to sanctuary
designation.
Within the sanctuary, NOAA will also consider allowing via permit
the beneficial use of material removed from dredging Port San Luis,
specifically to protect or restore habitat such as a sandy beach. The
beneficial use of dredged material for habitat protection or
restoration purposes is different from the disposal, or discarding, of
dredged material. A proposed project involving the beneficial use of
dredged material from Port San Luis may be eligible for approval by
NOAA if the project demonstrates a sanctuary habitat protection or
restoration purpose and if the permit requirements and criteria are
met.
NOAA is excepting routine discharges from U.S. Coast Guard
operations, which is consistent with NOAA's approach at two other
national marine sanctuaries offshore California, Cordell Bank and
Greater Farallones National Marine Sanctuaries. One part of the
exception would allow U.S. Coast Guard vessels that lack sufficient
holding tank capacity and lack a Type I or II marine sanitation device
to discharge sewage and non-clean graywater beyond 3 nmi from shore. A
second part of the exception would allow discharge of ammunition,
pyrotechnics, and other material directly related to training from
beyond 12 nmi from shore from U.S. Coast Guard vessels and aircraft
conducting training activities for search and rescue and live
ammunition fire in the sanctuary. NOAA recognizes that these exceptions
are necessary to ensure existing U.S. Coast Guard patrols, operations,
and training can be maintained in the new sanctuary. U.S. Coast Guard
patrol vessels provide a tremendous benefit to NOAA by assisting with
enforcement of national marine sanctuary regulations. Moreover, the
U.S. Coast Guard is an essential element of marine safety to all
mariners operating offshore in central California, and they also
provide enforcement of other Federal laws, conduct drug smuggling
interdiction activities, and protect the homeland. ONMS has developed
plans with U.S. Coast Guard District 11 leadership through informal
discussions and NMSA section 304(d) consultation to limit discharges
into other west coast national marine sanctuaries and anticipates
similar approaches could be explored for U.S. Coast Guard operations in
the sanctuary. Therefore, NOAA considers the discharge exception for
U.S. Coast Guard vessels appropriate.
Finally, NOAA is including an exception that would allow discharges
incidental and necessary to normal oil and gas production activities
from Platforms Irene and Heritage into reservoirs of existing leases
and lease units in effect at the time of sanctuary designation. These
could include drill mud to maintain well pressure and control during
drilling as well as other materials necessary to force oil and gas
products from one part of the reservoir into producing wells. The last
step in the life of an oil and gas well is to abandon the well, with
the operator pumping cement into the well to prevent release of
hydrocarbons in the future; this activity would be part of the
exception. Use of the depleted reservoirs for injection or storage of
any material not considered incidental and necessary to normal oil and
gas production would not be covered by the exception but could be
considered via permit processes.
Discharges from beyond the boundary of the sanctuary would also be
prohibited when those discharges subsequently enter the sanctuary and
harm a sanctuary resource or quality. An example of this could be a
spill from an onshore oil pipeline that flows down a creek, enters the
sanctuary at the MHWL, and injures seabirds, fish, algae, or the
sanctuary seafloor or other habitat. Unlike a discharge directly within
or into the sanctuary, for a discharge to violate this prohibition, the
discharge must injure a sanctuary resource or quality. This prohibition
could also be applied to a spill or other discharge that originated
from the marine environment and subsequently entered the sanctuary and
injured a sanctuary resource or quality. The same exceptions that are
included for the sub-element prohibiting discharge directly within or
into the sanctuary would also apply for a discharge from beyond the
boundary, except for the exception for dredge disposal and the
exception for discharges incidental and necessary to oil and gas
production. NOAA intends that dredge disposal discharges beyond the
boundary of the sanctuary need to be designed in such a manner that
they do not enter the sanctuary and injure sanctuary resources or
qualities.
The third sub-element of this discharge regulation would prohibit
discharge from cruise ships. Across most national marine sanctuaries,
NOAA has applied consistent regulations that allow for fewer exceptions
for cruise ship discharges than for other vessel discharges within or
into sanctuaries because cruise ships can generate very large volumes
of waste or other discharges. Even if treated, the volume of sewage and
graywater, for instance, on a cruise ship of more than 2,000 passengers
can reach several million gallons a day. Sewage discharge may contain
bacteria or viruses that can cause disease in humans and wildlife, and
can cause excessive growth and decomposition of oxygen-depleting plant
life, resulting in harm or death to organisms. Section 4.2.1 of the
final EIS provides additional detail on these sorts of discharges. The
only exceptions for cruise ships discharging within CHNMS would be for
clean vessel engine cooling water, clean vessel generator cooling
water, vessel engine or generator exhaust, clear bilge water, or anchor
wash; in essence, discharges directly linked to propelling and
operating the vessel itself.
3. Prohibition on Drilling Into or Altering the Submerged Lands
The seabed is a large and important habitat in the ecosystem within
the sanctuary, and NOAA is prohibiting activities that would drill
into, dredge, or otherwise alter or disturb the submerged lands of the
sanctuary. This prohibition would include constructing, placing or
abandoning any structure, material, or other matter on the submerged
lands. This is a common regulatory prohibition that NOAA has applied to
most national marine sanctuaries. The purpose is to prevent activities
that cause harm to habitat and species on or near the seafloor, such as
drilling into or dredging into the seafloor. The regulation includes
exceptions for certain activities including disturbance during the
conduct of lawful fishing activities, kelp harvesting, or anchoring a
vessel. NOAA is also excepting from this prohibition the installation
of an aid to navigation, as well as the repair, replacement, or other
maintenance on existing structures, specifically docks, piers,
[[Page 83567]]
breakwaters, or jetties. Also, NOAA is including an exception for
maintenance dredging of the entrance channels for Port San Luis in
existence at the time the sanctuary is designated. Vandenberg Space
Force Base periodically conducts dredging near its coastal loading
dock, within and adjacent to the small harbor excluded from the
sanctuary, and typically relies on onshore disposal of the sand. Future
dredging disturbance beyond the harbor exclusion, thus within the
sanctuary, would be exempted with the general exemption for existing
Department of Defense activities as well as via this exception for
harbor maintenance dredging. NOAA has also included an exception to
allow for drilling, maintaining, and abandoning wells incidental and
necessary to normal oil and gas production activities pursuant to
existing leases or lease units in effect at the time of sanctuary
designation from Platforms Irene or Heritage.
For these exceptions, NOAA has considered both the anticipated
level of disturbance to the submerged lands and the purpose of the
specified activities, most of which are related to maritime safety. The
proposed exceptions are intended to further the policy of the NMSA to
facilitate public and private uses of sanctuary resources to the extent
compatible with the primary objective of resource protection. However,
in order to conserve and protect populations of coral and sponge
colonies, NOAA will not apply any of these exceptions within the
Rodriguez Seamount Management Zone. The only exception that would apply
within the Rodriguez Seamount Management Zone is the exception for
seabed disturbance conducted during lawful fishing activity as
regulated under the MSA. Note, however, that most of the Rodriguez
Seamount Management Zone has been designated by the Pacific Fishery
Management Council as groundfish essential fish habitat under the MSA,
and areas in and around the zone are currently closed to bottom
trawling under regulations at 50 CFR part 660, subpart C.
Certain currently proposed or contemplated future activities could
result in disturbance to the submerged lands in the area proposed for
sanctuary designation. Procedures described below in the section on
General Permits, Authorizations, Certifications, and Special Use
Permits could be used to allow such an activity that is otherwise
prohibited, provided that the applicable criteria and requirements are
met and that any permit conditions can be satisfied by developers.
Examples of such activities that would be prohibited by the seabed
disturbance regulation unless a sanctuary general permit, ONMS
authorization, or certification were issued include construction and
operation of subsea electrical transmission cables from wind
development in Federal waters beyond the sanctuary, or construction and
operation of wind platforms in State waters near Vandenberg Space Force
Base. Disturbance of submerged lands during repair and maintenance of
existing structures not listed as being exempted, such as oil pipelines
to shore from Platform Irene, or trans-oceanic fiber optic
telecommunications cables, would also require a permit, authorization,
or certification from NOAA before proceeding.
With respect to subsea electrical transmission cables, BOEM cannot
issue leases, rights of way, or easements for wind development within
national marine sanctuaries per the Outer Continental Shelf Lands Act
(OCSLA), 43 U.S.C. 1337(p)(10). As discussed in the final EIS, if,
despite the boundaries selected for CHNMS, offshore wind developers
require cable routing through the new sanctuary, NOAA intends to
coordinate with BOEM on potential integration of NMSA authorities and
BOEM's OCSLA authorities. NOAA has well-tested procedures to review and
allow scientific collection, site assessment, and characterization
activities through a sanctuary general permit for research purposes
under 15 CFR part 922, subpart D, and 15 CFR 922.233 of this rule. NOAA
is revising its 2011 Policy and Permitting Guidelines for Submarine
Cables \6\ and should be releasing those in advance of any permit needs
for subsea electrical transmission cables in this region, should
developers propose cable routes within CHNMS (see Section IV.H.4 of
this final rule preamble for more information). Wind developers and the
public will have a chance to comment on those guidelines. Otherwise,
NOAA's selection of the Final Preferred Alternative provides the best
opportunity to reduce the permitting needs and the risks offshore wind
developers perceive with the sanctuary permit process.
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\6\ <a href="https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/subcable_final_guidance_2011.pdf">https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/subcable_final_guidance_2011.pdf</a>.
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NOAA acknowledges that the telecommunications industry has already
made a large investment in submarine fiber optic cables in the area,
with more cables being possible in the future. The following most
likely permitting approach would be relevant to telecommunications
cables that may be proposed or presently lie within the final sanctuary
boundary. The following would also be relevant to any other type of
submarine cable that may be proposed within the final sanctuary
boundary. Sanctuary general permits, authorizations, and special use
permits are only issued after satisfaction of permit review criteria
and necessary reviews under NEPA, NHPA, and other environmental
compliance processes are completed.
<bullet> For existing submarine cables within the sanctuary, NOAA
could issue a certification of the existing Federal-, State- or
locally-issued permit. If that underlying permit allows for repair and
maintenance, or subsequent removal, NOAA can certify the permitted
activity(ies) and avoid further permit review unless the underlying
project or permit significantly changes.
<bullet> For the installation of a submarine cable on the outer
continental shelf within the sanctuary, NOAA could issue an ONMS
authorization of a permit issued by the U.S. Army Corps of Engineers
(USACE) under section 10 of the Rivers and Harbors Act (33 U.S.C. 403),
under 15 CFR 922.36 and 922.232(e) of this rule. NOAA is also
evaluating whether there may be additional valid Federal, State, or
local permits, licenses, or approvals that may also be authorized in
this context.
<bullet> For installation of cables within State waters of the
sanctuary, NOAA could similarly consider authorizing, under 15 CFR
922.36 and 922.232(e) of this rule, a lease issued by the State Lands
Commission or a coastal development permit issued by the California
Coastal Commission.
<bullet> Because historically USACE permits have had a limited time
period and not applied to the entire lifetime of a cable project, NOAA
has relied on the special use permit under section 310 of the NMSA to
authorize the continued presence of the cable on or in the seabed
within the sanctuary. However, as described in Section IV.H.4 of this
final rule preamble, NOAA issued a Federal Register Notice on August
16, 2024 (89 FR 66689) date that modified the SUP category for the
continued presence of commercial subsea cables in the following way:
for a two-year period beginning on August 16, 2024, the SUP category
does not apply to sanctuaries designated after August 16, 2024,
including Chumash Heritage National Marine Sanctuary. In other words,
for the duration specified in the notice (and subject to extension),
the continued presence of commercial subsea cables in Chumash Heritage
National Marine Sanctuary is not subject to the
[[Page 83568]]
requirements of section 310 of the NMSA.
<bullet> To allow any necessary maintenance and repair associated
with a cable that might cause a disturbance of the submerged lands of
the sanctuary, NOAA could rely on the initial ONMS authorization of the
USACE section 10 permit and/or State permit for the cable installation
depending on whether it included future repair and maintenance.
Alternatively, NOAA could issue an ONMS authorization of a separate
USACE and/or State permit that is issued specifically for the
maintenance and repair activity. As a third option for repair and
maintenance of cables that pre-existed the sanctuary designation, NOAA
could rely on its certification of the underlying permit if that permit
authorized repair to and maintenance of the cable.
NOAA has coordinated with USACE regarding this approach in Federal
waters, and intends to continue that coordination throughout the
designation process and as plans for cabling in the area are developed.
Regular coordination with State agencies has occurred in the past and
NOAA would conduct specific coordination meetings related to submarine
cable permitting as necessary. In sum, NOAA's final regulations contain
several permitting mechanisms that provide NOAA with flexibility in its
approach to any individual permitting request (see also section H of
this preamble below and section 3.2.2 of the final EIS).
Decommissioning and removal activities that would disturb the
sanctuary seabed, such as oil and gas platform removal, would require a
permit, authorization, or certification from NOAA before proceeding.
Further, NOAA has already commented, or could comment in the future as
appropriate, to Federal, State, and local agencies leading regulatory
review of these actions; also, some of these examples have been
discussed with BOEM and BSEE, as cooperating agencies under NEPA for
this designation, given the relevance to their authorities.
4. Prohibition on Possessing, Moving, Removing, or Injuring or
Attempting To Possess, Move, Remove, or Injure a Sanctuary Historical
Resource
NOAA is prohibiting possessing, moving, removing, or injuring, or
attempting to possess, move, remove, or injure a sanctuary historical
resource, as defined at 15 CFR 922.11. This prohibition reduces the
risk of direct harm to sanctuary historical and cultural resources.
``Moving'' and ``injuring'' include any changes to the position or
State of historical resources, as well as covering, uncovering, moving,
or taking artifacts from a shipwreck, even if the artifacts are not
located directly on a shipwreck. Sanctuary historical resources include
cultural and archaeological resources and artifacts. This sanctuary
prohibition would apply within both State and Federal waters of the
sanctuary and is necessary to ensure conservation of historical
resources on the more than 100 ship and aircraft wrecks thought to
exist in the sanctuary, as well as other known or unknown historical
resources, such as resources that may be associated with submerged
Native settlements.
5. Prohibition on Taking Any Marine Mammal, Sea Turtle or Bird Within
or Above the Sanctuary
This prohibition ensures conservation of important populations of
marine mammals, sea turtles, and birds that are found in or above the
sanctuary. The regulation would not apply should a person be authorized
to take a marine mammal, sea turtle, or bird by NOAA or the U.S. Fish
and Wildlife Service pursuant to the Marine Mammal Protection Act
(MMPA), the Endangered Species Act (ESA), or the Migratory Bird Treaty
Act (MBTA). The term ``take'' including ``taking'' is defined in the
national sanctuary regulations at 15 CFR 922.11.
6. Prohibition on Possessing Within the Sanctuary (Regardless of Where
Taken, Moved, or Removed From) Any Marine Mammal, Sea Turtle, or Bird
This regulation is a companion to the preceding prohibition and
would restrict a person's ability to possess any marine mammal, sea
turtle, or bird within the sanctuary, except as allowed by the MMPA,
ESA, or MBTA, or as necessary for valid law enforcement purposes.
7. Prohibition on Deserting a Vessel Aground, at Anchor, or Adrift in
the Sanctuary or Leaving Harmful Matter Aboard a Grounded or Deserted
Vessel in the Sanctuary
Other adjacent national marine sanctuaries, similar to the proposed
CHNMS, have considerable boating traffic along the coast and from local
harbors. NOAA responds to dozens of vessel sinkings, groundings, and
discharges each year in some of these national marine sanctuaries, many
with significant response and restoration costs and damage to sanctuary
resources. Along with responding to those incidents, NOAA has adopted
this regulation as a means to prevent a vessel's sinking, grounding, or
other incident, given that prevention is much less expensive than
responding to incidents and can optimally prevent impacts and damage to
sanctuary resources as well as to private property. NOAA is prohibiting
deserting a vessel aground within the sanctuary for the same reasons.
In the definition of the term ``deserting'' in the national sanctuary
regulations at 15 CFR 922.11, NOAA has clarified conditions that
constitute deserting a vessel. Finally, with this proposed regulation
NOAA is prohibiting leaving harmful matter aboard a grounded or
deserted vessel in the sanctuary; the intent is to minimize additional
damage to sanctuary resources. The sanctuary regulations at 15 CFR
922.11 also define ``harmful matter.''
8. Prohibition on Attracting Any White Shark Within the Sanctuary
White sharks function as a key species in coastal ecosystems in
three broad areas in the world, with California and Baja California
forming one of those population centers. Several different areas within
the sanctuary have important populations of adult and sub-adult white
sharks, and may offer linkage to other white shark aggregation areas in
CINMS, MBNMS, and Greater Farallones National Marine Sanctuary (GFNMS).
Including this regulation provides similar levels of protection to
these central California white shark aggregation sites within CHNMS by
preventing harm or behavioral disturbance to white sharks. The
regulation applies the definition of ``attract'' in the national
sanctuary regulations at 15 CFR 922.11. The prohibition against
attracting white sharks is intended to address harassment and
disturbance related to human interaction from research activities
directed at white sharks or shark diving programs known generally as
adventure tourism, or from recreational boaters who may approach a
white shark. NOAA has concluded these activities can degrade the
natural environment, impacting the species as a whole, or adversely
impacting individual sharks from repeated encounters with humans and
boats. A similar prohibition against attracting great white sharks was
promulgated for MBNMS in 1996 and GFNMS in 2008, and, at those
sanctuaries, NOAA has not observed the inadvertent attraction of white
sharks from lawful fishing activities. NOAA would have the ability to
issue permits for activities that involve attracting a white shark if
the permit procedures and requirements are met, as described below.
[[Page 83569]]
9. Prohibition on Moving, Removing, Taking, Collecting, Catching,
Harvesting, Disturbing, Breaking, Cutting or Otherwise Injuring a
Sanctuary Resource Located Below 1,500 ft. Water Depth Within the
Rodriguez Seamount Management Zone; Prohibition on Possessing Any
Sanctuary Resource, the Source of Which Is Below 1,500 ft. Water Depth
Within the Rodriguez Seamount Management Zone
NOAA is adopting a regulatory framework for Rodriguez Seamount that
is similar to its approach for Davidson Seamount in MBNMS. With the
CHNMS regulations, NOAA is creating the Rodriguez Seamount Management
Zone to ensure conservation of diverse and rare resources found on the
seamount, including coral and sponges and other invertebrates, or
living in the water column immediately above it. The seamount has
seafloor features that suggest it may have been exposed above sea level
millions of years ago, and its uncommon geomorphologic and benthic
habitat features could be damaged without further protection. The top
of the seamount is at approximately 2,000 ft. water depth, so under the
regulation there will be a buffer of 500 ft. above the top of the
seamount to protect organisms that migrate above the seamount
diurnally.
This prohibition does not apply to lawful fishing activity that is
regulated under the MSA and its implementing regulations. NOAA, through
conservation actions under the MSA, has prohibited bottom trawling on
and around Rodriguez Seamount since June 2006. Additional protections
provided to the seamount by the sanctuary regulations would protect the
high biodiversity and deep-sea habitat on the seamount. Long life
histories and slow growth of deep-sea communities mean that these
habitats have long recovery times following injuries and adverse
impacts; additional protections for resources 1,500 ft. below sea level
(roughly 500 ft. above the top of the seamount) will add critical
additional risk mitigation for these sensitive resources.
10. Prohibition on Introducing or Otherwise Releasing From Within or
Into the Sanctuary an Introduced Species, Except Striped Bass Released
During Catch and Release Fishing Activity
NOAA is prohibiting introducing or otherwise releasing an
introduced species, as that term is defined in the national sanctuary
regulations at 15 CFR 922.11, into the sanctuary. NOAA has adopted the
same introduced species regulation at other national marine sanctuaries
offshore of California to prohibit the release of an introduced species
into the sanctuary. Releases and subsequent spreading of introduced
species have devastated marine ecosystems across the globe; most
notably the alga Sargassum horneri has become a disruptive introduced
species at nearby CINMS and has the potential to cause ecological and
economic harm. This and other introduced species are potentially spread
by vessels and have proliferated in the Santa Barbara Channel. Removing
or otherwise eradicating introduced species once they have established
local populations is extremely difficult; hence, preventative and
deterrence measures offer added benefits against the harms caused from
introducing such species within national marine sanctuaries. The
exemption for catch and release of striped bass recognizes the State of
California has size limits for striped bass, an introduced but now
established species harvested by recreational fishermen. Releasing a
striped bass will not be a violation of this prohibition.
11. Prohibition on Interfering With, Obstructing, or Preventing an
Investigation, Search, or Other Enforcement Activity
NOAA adopts a regulation, similar to regulations at other local
national marine sanctuaries, to prohibit interfering with various
sanctuary enforcement activities. This regulation will assist in NOAA's
enforcement of the sanctuary regulations and strengthen sanctuary
management.
E. Exemption for Emergencies
The prohibitions for CHNMS would not apply to any activity
necessary to respond to emergencies that threaten life, property, or
the environment. However, this exemption for emergencies does not apply
to the prohibitions on the development of oil, gas, or minerals;
attracting a white shark; introducing an introduced species; or
interfering with an investigation or other enforcement activity.
F. Department of Defense Exemption
NOAA is establishing a broad exemption to allow existing activities
carried out or approved by the various branches of the Department of
Defense (DoD) as specifically identified in Chapter 4.9 or Appendix I
to the final EIS. NOAA has coordinated with the DoD to include in
Appendix I to the final EIS a list of the existing activities that
occur in or immediately adjacent to the sanctuary that would qualify
for this exemption.
The area overlaps with the Point Mugu sea range and is adjacent to
Vandenberg Space Force Base, which conducts both military missions from
the base as well as hosting commercial space launches. All launches
from the base or within the proposed sanctuary that are carried out or
approved by DoD would be included in this exemption. With respect to
commercial and civil launches from the base and associated activities,
DoD has informed NOAA that:
<bullet> DoD approval is required for these activities.
<bullet> DoD conducts NEPA reviews for these activities. Other
Federal agencies, such as the Federal Aviation Administration and/or
the U.S. Coast Guard, may be cooperating agencies for purposes of these
NEPA reviews.
<bullet> DoD also conducts all required natural and cultural
resource consultations for these activities.
<bullet> Civil partners and commercial providers conducting these
activities are required to comply with DoD best management practices.
NOAA advises that based on public comments received, additional
coordination with DoD, and NOAA's experience administering the National
Marine Sanctuary System, pursuant to NEPA and the Administrative
Procedure Act, final EIS Appendix I reflects minor changes to the list
of exempted activities based on DoD's administrative record of
environmental compliance for the exempted activities. These minor
conforming changes were made to ensure that the list of exempted
activities in Appendix I reflects the most current information as to
the existing activities that DoD carries out or approves and includes
references to the environmental compliance materials that DoD provided.
As such, these minor changes are consistent with the purposes of the
proposed rule and do not alter the no adverse impacts conclusion in
final EIS Section 4.9.
New DoD activities that would not otherwise be prohibited by the
CHNMS regulations would not require an amendment to the list of
exempted activities. For those new DoD activities that would otherwise
be prohibited by the CHNMS regulations, NOAA has included in the
regulations a process whereby the ONMS Director, upon consultation with
the appropriate counterpart at the DoD, can also exempt such new
activities carried out by the DoD. An activity is considered to be a
new activity, and not covered by the exemption for existing DoD
activities, if the activity is new or modified in any
[[Page 83570]]
way (including change in location, frequency, duration, or technology
used) from the activities described or listed in section 4.9 or
Appendix I, and the activity is likely to cause adverse effects on
sanctuary resources or qualities that are substantially greater or
different in kind than the effects of the activities described or
listed in section 4.9 or Appendix I.
A new activity that is not covered by the exemption for existing
DoD activities could be conducted if a sanctuary general permit or ONMS
authorization, as applicable, were issued for the proposed activity. In
addition, NOAA commits to working with the DoD to consider exempting
new activities from the CHNMS regulatory prohibitions through
subsequent rulemaking procedures, for instance in subsequent management
plan and regulatory review processes for CHNMS. Any changes to the list
of exempted DoD activities could only occur after compliance with all
applicable laws, such as the Administrative Procedure Act and NEPA, as
necessary, and after public notice and comment, as applicable.
NOAA is willing to work with the DoD to create a mechanism whereby
new activities that are likely to injure sanctuary resources, and
thereby also require section 304(d) consultation, could be handled in a
single, consolidated review.
This final regulation also contains language common to regulations
for other national marine sanctuaries about obligations of the DoD in
the event an incident results in threatened or actual destruction, loss
of, or injury to a sanctuary resource or quality. NOAA recognizes that
this broad exemption is necessary to ensure military readiness for the
DoD to conduct existing training, operations, and military readiness
activities in the area proposed to be designated as a national marine
sanctuary. The United States military has been able to maintain
readiness and conduct training and other operations in other national
marine sanctuaries based on similar broad exemptions.
G. Emergency Regulations
NOAA is not including any sanctuary-specific regulation to allow
for development of emergency regulations to address urgent threats to
sanctuary resources. Rather, the emergency regulation provision
included in the regulations of general applicability, which apply to
all national marine sanctuaries (see 15 CFR 922.7), would also apply to
CHNMS. Emergency regulations are used when there is an imminent risk to
sanctuary resources and a temporary regulation or prohibition is
necessary to prevent or minimize the destruction or loss of those
resources, or otherwise minimize the imminent risk of such destruction,
loss, or injury.
H. General Permits, Certifications, Authorizations, Special Use
Permits, Memorandums of Agreement
1. Sanctuary General Permits
NOAA is including authority to issue sanctuary general permits to
allow certain activities that would otherwise violate prohibitions in
the sanctuary's regulations. This language would not allow issuance of
a sanctuary general permit for oil, gas, or mineral exploration,
development, or production; introducing an introduced species; or
interfering with an investigation or other enforcement activity; or as
further limited in Sec. 922.232(f) of the proposed regulations.
National marine sanctuary program-wide regulations describe, at 15 CFR
922.30, different purposes for which a sanctuary general permit could
be issued, three of which would apply to this proposed sanctuary:
``Research--activities that constitute scientific research or
scientific monitoring of a national marine sanctuary resource or
quality,'' ``Education--activities that enhance public awareness,
understanding, or appreciation of a national marine sanctuary or
national marine sanctuary resource or quality,'' and ``Management--
activities that assist in managing a national marine sanctuary.''
NOAA is adding to the list at Sec. 922.30, an additional purpose
specific to CHNMS for which a sanctuary general permit could be issued:
``Native American cultural or ceremonial activities--activities within
Chumash Heritage National Marine Sanctuary that will promote or enhance
local Native American cultural or ceremonial activities; or will
promote or enhance education and training related to local Native
American cultural or ceremonial activities.'' NOAA has adopted this
general permit category to address a need identified during scoping.
Specifically, NOAA received a scoping comment letter stating that
Indigenous peoples should be allowed to conduct the following cultural
activities in the proposed sanctuary, subject to all other applicable
law: collecting culturally-significant resources including bones,
feathers, shells, animals, and plants; burials of cremated remains in
biodegradable receptacles; survey and other work at submerged
Indigenous living sites, like villages or caves, including collecting
artifacts like stone bowls or pestles. ONMS may be able to allow some
of these activities to occur within the proposed sanctuary under
existing authorities and the current general permit categories at Sec.
922.30 (e.g., a research or education permit may be appropriate to
authorize survey activities at submerged Indigenous living sites).
However, ONMS is including this additional general permit category for
CHNMS to ensure that activities to promote or enhance Native American
cultural or ceremonial activities may be allowed to occur within the
sanctuary, consistent with the purpose and need of the designation. The
permit category will be recipient neutral; i.e., any person, as that
term is defined in 15 CFR 922.11, would be able to apply for a permit
under the proposed category. However, permits may only be issued for
those activities that will promote or enhance local Native American
cultural or ceremonial activities or education and training related to
such activities. NOAA has determined that this permit category would
further the purposes and policies of the NMSA by facilitating uses of
sanctuary resources compatible with the primary objective of resource
protection, and by enhancing public awareness, understanding,
appreciation, and wise and sustainable use of the historical, cultural,
and archaeological resources of the proposed sanctuary.
The regulations will require compliance with 15 CFR part 922,
subpart D, in the national regulations for permit application
processes, review procedures, amendments, and other permitting
stipulations. These national permitting regulations include a list of
factors NOAA considers in deciding whether or not to issue the permit,
such as whether the activity must be conducted within the sanctuary, or
whether the activity will be compatible with the primary objective of
protection of sanctuary resources and qualities. NOAA will be able to
impose specific terms and conditions through a permit as appropriate.
2. Certifications
Under 16 U.S.C. 1434(c), NOAA may not terminate any valid lease,
permit, license or right of subsistence use or access (``permit or
right'') that is in existence on the date of designation of a
sanctuary. However, NOAA may regulate the exercise of such permit or
right consistent with the purposes for which the sanctuary is
designated. Pre-existing activities specifically authorized by a valid
Federal, State, or local lease, permit, license, or rights of
subsistence use or access might be
[[Page 83571]]
occurring within CHNMS that would otherwise be prohibited by sanctuary
regulations. Therefore, NOAA has included Sec. 922.234 to describe the
process by which it could certify an existing valid lease, permit,
license, or right of subsistence use or access within the sanctuary
boundaries, consistent with 16 U.S.C. 1434(c) and 15 CFR 922.10. In
compliance with the NMSA, the regulations at Sec. 922.234 State that
certification is the process by which such activities existing prior to
the designation of the sanctuary that violate sanctuary prohibitions
may be allowed to continue. NOAA may, however, further regulate the
exercise of such activities by applying additional terms and conditions
as a condition of the certification to achieve the purposes for which
the sanctuary would be designated. Requests for certifying permitted
existing uses would have to be received by NOAA within 120 days of the
effective date of the designation. As referenced in the proposed rule
preamble, NOAA further clarifies that pre-existing structures on the
submerged lands of the sanctuary, including pipelines, cables, and oil
and gas structures, are subject to the certification requirements.
3. ONMS Authorizations
Pursuant to Sec. 922.36 in the national regulations and Sec.
922.232(e) in the CHNMS regulations, NOAA will have the authority to
consider allowing an activity otherwise prohibited by Sec. 922.232 if
such activity is specifically authorized by any valid Federal, State,
or local lease, permit, license, approval, or other authorization
issued after the effective date of sanctuary designation. This ``ONMS
authorization authority'' will apply to most of the proposed
prohibitions as outlined in Sec. 922.232(e) and as limited in Sec.
922.232(f). However, NOAA could not issue an authorization to allow for
exploration, development, or production of oil, gas, or minerals, or
for interfering with an investigation or other enforcement action. In
general, an ONMS authorization could not be issued to allow for an
introduction of an introduced species; however, NOAA proposes a process
by which an ONMS authorization for aquaculture projects raising an
introduced species approved by the State of California could be issued
after making certain findings. NOAA has previously adopted a memorandum
of agreement (MOA) with the State of California for considering
aquaculture projects raising an introduced species in State waters of
MBNMS and intends to update that MOA to address future aquaculture
projects raising an introduced species that may be proposed within
CHNMS.
4. Special Use Permits
NOAA has the authority under the NMSA to issue special use permits
(SUPs) at national marine sanctuaries, as established by section 310 of
the NMSA (16 U.S.C. 1441) and by 15 CFR 922.31. SUPs can be used to
authorize specific activities in a sanctuary if such authorization is
necessary to establish conditions of access to, and use of, any
sanctuary resource or to promote public use and understanding of a
sanctuary resource. Section 310 of the NMSA establishes four
requirements for SUPs: (1) activities must be compatible with the
purposes for which the sanctuary is designated and with protection of
sanctuary resources; (2) SUPs shall not authorize the conduct of any
activity for a period of more than five years unless otherwise renewed;
(3) activities carried out under the SUP must be conducted in a manner
that does not destroy, cause the loss of, or injure sanctuary
resources; and (4) permittees are required to purchase and maintain
comprehensive general liability insurance, or post an equivalent bond,
against claims arising out of activities conducted under the SUP and to
agree to hold the United States harmless against such claims. The NMSA
authorizes NOAA to assess and collect fees for the conduct of any
activity under an SUP, including costs incurred, or expected to be
incurred, in issuing the permit and the fair market value use of
sanctuary resources; for instance, for use of the seabed to protect a
buried cable from anchor damage. Implementing regulations at 15 CFR
922.35 provide additional detail on assessment of fees for SUPs. Like
with sanctuary general permits, NOAA can place conditions on SUPs
specific to the activity being permitted.
The activities that may qualify for a SUP are set forth in the
Federal Register (78 FR 25957 (May 3, 2013); 82 FR 42298 (Sept. 7,
2017)). Categories of SUPs may be changed or added to through public
notice, and no SUP may be issued for any category of activity unless
ONMS has published a notice in the Federal Register that such category
of activity is subject to the requirements of section 310 of the NMSA.
NOAA is not proposing any new SUP category as part of the designation
of CHNMS.
However, as memorialized in a Federal Register Notice issued on
August 16, 2024 date (89 FR 66689), NOAA modified the SUP category for
the continued presence of commercial subsea cables in the following
way: for a two-year period beginning on August 16, 2024 date, the SUP
category does not apply to sanctuaries designated after August 16, 2024
date. In other words, via this notice, NOAA informed the public that
for the duration specified in the notice, the continued presence of
commercial subsea cables in sanctuaries designated after August 16,
2024 date is not subject to the requirements of Section 310 of the
NMSA. The duration specified in the notice may be further extended via
subsequent Federal Register Notices. The purpose of this modification
is to afford NOAA adequate time to evaluate the need for updating this
SUP category, to publish any proposed updates to the category and/or to
implement guidance for the category, to consider and respond to public
comment, and to finalize any updates to the category. NOAA will publish
Federal Register Notices of any such subsequent proposed or final
updates. See the Notice (89 FR 66689) for more information. (Need to
update based on content of FRN).
As further described in the August 16, 2024 date Federal Register
Notice, the modification of the SUP category for the continued presence
of commercial subsea cables was effective immediately, however, at the
time of modification, NOAA also initiated a request for public comments
on its evaluation of this SUP category generally. Any comments received
pursuant to that request will be considered and addressed when NOAA
publishes any proposed updates to the SUP category and/or to
implementing guidance for the category. See 89 FR 66689 for additional
information.
SUP categories that are potentially relevant to known activities at
the proposed CHNMS include the discharge of cremated human remains, and
discharges from fireworks displays.
5. Memoranda of Agreement
NOAA is including a section of the regulations describing two
memoranda of agreement it will enter into for interagency coordination
to address regulatory or statutory issues--introduced species
aquaculture projects and the Sunken Military Craft Act. Regarding
introduced species, NOAA has previously established an agreement to
coordinate with State agencies on review of aquaculture projects that
could include introduced species into MBNMS and GFNMS. NOAA would
revise and update that to include CHNMS. This regulation also
acknowledges that sunken military craft in CHNMS will continue to be
administered by the respective Secretary concerned pursuant to the
Sunken Military Craft Act. NOAA will enter into
[[Page 83572]]
a Memorandum of Agreement with the appropriate agencies regarding
collaboration on implementing the Sunken Military Craft Act. The ONMS
Director will request approval from the respective Secretary concerned
for any terms and conditions of ONMS authorizations that may involve
sunken military craft in CHNMS.
I. Other Conforming Amendments
The general regulations in 15 CFR part 922, subpart A, for general
information and 15 CFR part 922, subpart D, for National Marine
Sanctuary permitting are also amended so that the regulations are
accurate and up-to-date. The modified sections to conform to adding a
new sanctuary are:
<bullet> Section 922.1 Purposes and applicability of the regulations
<bullet> Section 922.4 Boundaries
<bullet> Section 922.5 Allowed activities
<bullet> Section 922.6 Prohibited or otherwise regulated activities
<bullet> Section 922.30 National Marine Sanctuary general permits
<bullet> Section 922.36 National Marine Sanctuary authorizations
<bullet> Section 922.37 Appeals of permitting decisions
V. Response to Comments
This final rule includes NOAA's responses to some comments from
Appendix A of the final EIS. These comments and responses are included
in this preamble because they address the significant issues raised in
public comments on the proposed rule and offer additional information
about why certain changes were made to the rule, the terms of
designation, the regulations, or the management plan. The final rule
retains the numbering/naming of the comment from Appendix A so readers
can track the comments that have been included in this preamble and
more efficiently find other related comments/responses in Appendix A
that have not been included in this preamble. As such, cross-references
have been retained here for completeness. For a full scope of all of
the comments received on the draft designation documents, including the
draft EIS and the draft management plan, and their responses, please
review Appendix A of the final EIS.
1. Comment GN-1: An overwhelming majority of comments (>98%) voiced
support for the proposed sanctuary, its goals and objectives, and the
proposed regulations. Commenters encouraged NOAA to proceed with the
sanctuary designation process due to the importance of resources in the
study area and the need to provide additional protection of these
resources.
Response: NOAA agrees with the view that this sanctuary area
contains nationally significant natural, historical, and cultural
resources worthy of protection. Numerous opportunities exist to
collaborate on the management of this area with a diversity of Native
American Tribes and Indigenous organizations. The new sanctuary would
help both the State and Federal governments achieve their biodiversity
conservation goals that have been established. The sanctuary would
promote various forms of engagement with and use of the sanctuary and
its resources (e.g., cultural activities, fishing, recreation, and
research), while establishing additional regulations and non-regulatory
programs to conserve the area's nationally-significant resources. It
would help promote mitigation and adaptations in response to climate
change, from establishing conservation actions, to promoting ``blue
carbon'' ecosystem components, such as kelp forests and whale
populations.\7\ NOAA, working in collaboration with partners, would
bring outreach activities, education programs, and research and
monitoring to aid our understanding of the area and promote co-
stewardship.
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\7\ <a href="https://www.fisheries.noaa.gov/feature-story/whales-and-carbon-sequestration-can-whales-store-carbon">https://www.fisheries.noaa.gov/feature-story/whales-and-carbon-sequestration-can-whales-store-carbon</a>.
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2. Comment GN-2: General opposition to the overall sanctuary
process was expressed for a variety of reasons, including the potential
that it could lead to additional regulations or potentially restricted
access.
Response: NOAA has followed a very deliberate public process for
designation of the new sanctuary. The process is consistent with NOAA's
contemporary practice for designating other national marine sanctuaries
and consistent with the provisions of the NMSA, in particular Section
304 (Procedures for Designation and Implementation), 16 U.S.C. 1434.
Preceding the designation process, NOAA conducted an extensive public
review at the five-year interval for the original nomination of the
sanctuary; the proposed designation process began in November, 2021
with publication of the Notice of Intent (NOI) to conduct scoping and
prepare an EIS, which provided for additional opportunity for public
input during the scoping phase. NOAA received more than 14,300 comments
and 22,000 comments, respectively, in these two public processes,
nearly all in favor of designation and additional protections. Many of
the comments formed the basis of alternatives and regulations proposed
for designation. NOAA continued this highly public process with various
public workshops preceding the release of the draft designation
documents. More than 110,000 comments were received on the draft
designation materials. NOAA has diligently reviewed, considered, and
responded to the issues raised in those comments throughout this
appendix.
The designation materials include the rule, the final EIS and the
final management plan. These materials have been revised through the
extensive public process outlined above. Only the regulations that are
necessary to address threats to sanctuary resources are included in the
designation. See also the Regulations and Permitting section of
comments and responses. Regarding concerns about restricted access,
NOAA's sanctuary regulations impose no limits on public access to
sanctuary waters (see response to Comment SE-8), and will encourage
responsible use and enjoyment of the sanctuary (see, for example, the
management plan's Blue Economy Action Plan).
3. Comment GN-6: There is a concern that once NOAA is given
control, nothing can stop it from imposing more restrictions like
eliminating recreational uses that belong to everyone. No specific
human uses should be banned. Most of what NOAA says it will allow can
be done right now, without giving NOAA control of the oceans and
beaches that belong to everyone.
Response: NOAA has only developed regulations for the sanctuary to
restrict or eliminate human activities that can harm sanctuary
resources. Any limits on recreation or other activities would be to
reduce harm to resources, such as discharge of untreated sewage from a
recreational vessel. Sensible exceptions are included in the
regulations for activities that on their face could be prohibited, but
for which NOAA has concluded they could nonetheless continue, such as
exceptions to the submerged lands disturbance regulation for anchoring
a vessel. The proposed exceptions are intended to facilitate public and
private uses of sanctuary resources to the extent compatible with the
primary objective of resource protection. Any future change in these
regulations would require that NOAA conduct a public review process
that mirrors the extensive process it has undertaken for this initial
designation of the sanctuary.
4. Comment BO-1: NOAA should close the gap created between Cambria
and Monta[ntilde]a de Oro, including the waters off Morro Rock, by
designating the final sanctuary with the Initial Boundary Alternative
or Alternative 1 rather than the Agency-Preferred Alternative. Many
reasons were given
[[Page 83573]]
including the area's important ecological characteristics and
connectivity to other sanctuaries, sacred significance to Indigenous
communities, and the importance for NOAA to have regulatory oversight
for offshore wind and other types of uses or development and overall
resource protection in this area.
Response: NOAA acknowledges that a final sanctuary boundary that
originates at the southern end of MBNMS (at Cambria) and extends
southward, ``closing the gap,'' as achieved by the Initial Boundary
Alternative or Alternative 1, would protect important ecological
characteristics, historical resources, and sacred Indigenous heritage
resources in that area. However, as discussed in detail in Section
5.4.9 in the final EIS, NOAA has included a Final Preferred Alternative
with the coastal boundary and offshore waters of Alternative 4, plus
Sub-Alternative 5b, plus a small area to more fully protect the Santa
Lucia Bank that had been part of the Initial Boundary Alternative (see
Figure 5-1 in Section 5.4.9 of the final EIS). This alternative has
been identified after thorough consideration of public and Indigenous
community comments, NOAA's responses to those comments, Administration
priorities, and consultation among Federal agencies.
The reasons for further reducing the final sanctuary boundary at
this time center around clarifying information provided by the three
Morro Bay offshore wind energy lease holders during the public comment
period, and NOAA's consideration of this information in light of
renewable energy and conservation goals, the purposes and policies of
the NMSA, and the purpose and need of the proposed sanctuary. NOAA also
considered public comments supporting offshore wind energy development,
as well as the State of California's support for sanctuary designation
and the State's goal for transitioning to 100% clean energy. In public
comments, the leaseholders identified a need to develop between 15-24
subsea electrical transmission cables between offshore leases and two
landing sites at Morro Bay and Diablo Canyon grid connections.
Presently they estimate landing roughly half of the cables at each grid
connection. The three leaseholders' current design requirements may
mean they will seek access to a portion of the seabed between 30-45
miles wide, narrowing as cables approach land and shallower water.
Their comments on the draft EIS note that subsea electrical
transmission cables need broad gradual bends (rather than sharp turns)
and need to cross other cables at largely 90-degree angles. With these
parameters, all of the boundaries analyzed in the EIS for CHNMS would
be expected to require cable routing from the Morro Bay leases through
the sanctuary to shore, except for Alternative 4. While the draft EIS
anticipated the leaseholders may need to route cables to DCPP and that
NOAA could rely on its permitting process to review such cable
placement, the lease holders expressed persistent concerns. Several of
the Morro Bay leaseholders expressed persistent concerns with the NOAA
permit process for submarine cables and whether or not, in the end,
they would be able to obtain permit approvals from NOAA to construct
15-24 subsea electrical transmission cables within the sanctuary from
the offshore leases to onshore grid connections. They also expressed
concerns that existing sanctuary permitting procedures could jeopardize
their ability to obtain financing for their development, and they
sought to avoid the introduction of any permitting risk that NOAA might
be unable in the future to approve one, several or all permit requests
for cables in the sanctuary.
In considering an area for designation, the NMSA requires NOAA to,
``enhance public awareness, understanding, appreciation, and wise and
sustainable use of the marine environment . . .,'' 16 U.S.C.
1431(b)(4), and to evaluate, among other factors, the manageability of
the area, the negative impacts produced by management restrictions on
resources development, and socioeconomic effects of sanctuary
designation. 16 U.S.C. 1433(b). At this final designation phase, NOAA
has reconsidered offshore wind industry concerns regarding the
sanctuary in the particular context of the Morro Bay leases, in
conjunction with existing infrastructure and competing uses of the
proposed sanctuary area, and in light of the purposes and policies of
the NMSA as referenced above. including any potential, negative impacts
produced by Sanctuary management restrictions on resources development,
as well as the sustainable use of the marine resources to support
renewable energy, climate change mitigation, and conservation goals.
NOAA has identified this adjusted boundary, which would further the
purpose and need of the sanctuary designation while also supporting
renewable energy goals of the Administration and the State of
California through allowing offshore wind developers to complete siting
and permitting for subsea electrical transmission cables from the three
Morro Bay offshore wind leases to landing sites at both Morro Bay and
Diablo Canyon without having to route cables through the new sanctuary,
given their permitting uncertainty concerns as described above. The
Final Preferred Alternative would be the most manageable boundary at
this time and would allow the new sanctuary to focus on numerous core
activities outlined in the management plan without the need to focus
resources on myriad permitting issues related to offshore wind
development. If NOAA decides to adopt sanctuary protections at a later
time for additional areas (see the final management plan's Boundary
Adjustment Action Plan), such a process would be informed by an
improved, more certain understanding of offshore wind development in
this area.
The Final Preferred Alternative meets the purposes and need for the
designation as described in Chapter 2 of the final EIS, and it meets
the designation standards identified in Section 303 of the NMSA. NOAA
also acknowledges and affirms its commitment to respecting Indigenous
Knowledge and promoting co-stewardship in this area while advancing
climate and conservation goals. This final sanctuary boundary would
allow protection of nationally-significant natural, ecological,
historical, and cultural resources along 116 miles of the California
coast, out to nearly 60 miles from shore and a maximum depth of 11,580
feet. The total area within the Final Preferred Alternative is 4,543
square miles, making it one of the largest national marine sanctuaries
in the National Marine Sanctuary System, if the Final Preferred
Alternative is selected.
The draft EIS and the proposed rule provided notice to the public
that, based on public comments received on the draft designation
documents and NOAA's experience administering the National Marine
Sanctuary System, pursuant to NEPA and the Administrative Procedure
Act, NOAA may choose to identify an alternative in the final rule and
final EIS that is within the geographic and regulatory scope of the
alternatives considered in the draft EIS. Alternatives 4 and 5b along
with the small, additional area included over the Santa Lucia Bank
(analyzed in the Initial Boundary Alternative), and impacts associated
with these alternatives, are thoroughly discussed in the draft EIS.
NOAA received public comments on these alternatives that it carefully
considered in identifying the Final Preferred Alternative. As explained
in Section 3.6 of the final EIS, the minor variation in the boundary
for
[[Page 83574]]
Alternative 4 south of DCPP is also within the scope of alternatives
discussed in the draft EIS and does not result in environmental impacts
not previously considered. The Final Preferred Alternative is thus
within the geographic and regulatory scope of the alternatives
considered in the draft EIS. Based on this information, NOAA has
determined that there are no substantial changes to the proposed action
that are relevant to environmental concerns, nor are there significant
new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts. As such, preparation of
a supplemental EIS is not required.
NOAA considers the Final Preferred Alternative to be Phase 1 for
establishing national marine sanctuary protection for this important
coastline and these nationally-significant resources. At the first
management plan review process beginning on or before January 2032,
NOAA commits to evaluating and considering the need for and suitability
of several potential boundary adjustments to protect additional areas,
including moving the CHNMS boundary to the southern end of MBNMS.
Resources worthy of and requiring sanctuary protection would be
assessed at that time and the appropriateness of expanding the
sanctuary would be evaluated. Any subsequent boundary adjustments would
be guided by Section 304 of the NMSA and would require a separate
public process under the NMSA and NEPA. A ``Boundary Adjustment Action
Plan'' has been added to the final management plan.
5. Comment BO-4: NOAA should protect the waters from Morro Rock
north because, as it has noted for other sections of the proposed
sanctuary, this area includes numerous State parks--Morro Bay, Estero
Bluffs, Harmony Headland--as well as other State conservation areas,
such as Morro Strand State Beach Campground, Cayucos State Beach and
White State Marine Conservation Area, all of which could benefit from
adjacent sanctuary protection. By protecting adjacent areas, a larger
overall protected zone is created, each side supporting the other.
Response: NOAA will consider future protection of this area as part
of the Phase 2 process, which will inform NOAA's consideration of
future options for sanctuary protection of this area (see Boundary
Adjustment Action Plan under EIS Section 3.2.3 and Section 5.4.9 for
more information on Phase 2). As contemplated in the new ``Boundary
Adjustment Action Plan'', NOAA anticipates conducting studies about
resources that may warrant sanctuary protection prior to 2032, when it
will formally initiate a process to consider adjusting the sanctuary's
boundary.
6. Comment BO-5: NOAA should not close the gap at this time, rather
create a sanctuary expansion action plan to consider expanding the
sanctuary over that area in the future, after offshore cables are built
and can be certified by NOAA as an acceptable, existing use.
Response: NOAA agrees with the premise of the comment and has
included a new ``Boundary Adjustment Action Plan'' in the final
management plan for the sanctuary.
7. Comment BO-6: NOAA should include the Gaviota Coast Extension
(Sub-Alternative 5b) in the final sanctuary boundary because of
important biological and cultural resources, and the value that area
holds for coastal recreation.
Response: The boundary for the Final Preferred Alternative includes
the Gaviota Coast Extension (Sub-Alternative 5b). The EIS recognizes
that there are important resources in this area that would benefit from
sanctuary protection, such as biological resources, cultural resources,
and coastal recreation.
8. Comment BO-7: NOAA should include Morro Bay Estuary (Sub-
Alternative 5a) in the final sanctuary boundary as it is important to
Indigenous communities and is an important part of the overall
ecosystem.
Response: At this time, NOAA is not including the estuary within
the sanctuary and will consider if future sanctuary protection of the
estuary is warranted as part of the new ``Boundary Adjustment Action
Plan.'' NOAA is open to considering a future boundary expansion to
include the Morro Bay Estuary through a separate process under Section
304 of the NMSA.
9. Comment BO-9: Any final boundary needs to include the deep water
portions removed by Alternatives 1, 2 and 4, because that area is a
newly-discovered ecological hotspot, is important to bird species, and
may hold important seafloor habitats not yet discovered.
Response: NOAA considered the inclusion of these areas in the
Initial Boundary Alternative. The Final Preferred Alternative for the
sanctuary does not include the area west of the Santa Lucia Bank,
beyond approximately 65 miles from shore. NOAA fully considered
existing resource information for this area. The public comments did
not provide substantial new information about why that area should be
included in the final sanctuary boundary relative to the reasons NOAA
provided for excluding it in Section 5.4.9 in the draft EIS. NOAA still
has concerns about the extra management burden without existing
evidence regarding clearly nationally-significant natural or maritime
heritage resources in the area. Data are also unclear as to the threats
to resources found in this area and NOAA lacks information that would
support why a sanctuary designation is the proper management tool to
protect these resources. As outlined in the new ``Boundary Adjustment
Action Plan'' in the final management plan, if new data demonstrate
that significant living marine, submerged maritime heritage and/or
cultural resources in this area would benefit from sanctuary
protections, NOAA could consider a boundary expansion in the future.
See also the response to Comment BR-5.
10. Comment BO-14: NOAA should create an exclusion zone for the
existing harbor area off Vandenberg Space Force Base (VSFB) so that the
military's current harbor-related activities are not within the
sanctuary.
Response: NOAA's intent is to exclude existing coastal harbors from
the boundaries of the sanctuary in recognition that there can be
numerous activities and structures necessary within a harbor that may
otherwise be inconsistent with a national marine sanctuary and are best
managed by local authorities. The Initial Boundary Alternative in the
draft EIS excluded three harbors--Morro Bay, the private marina at
Diablo Canyon Power Plant and all of Port San Luis, and should have
also excluded an area that contains the existing harbor activities at
VSFB. The analysis of all alternatives in the final EIS and the
boundary for the Final Preferred Alternative excludes this small area
from the sanctuary (see final EIS Figure 3-3). This is a technical
correction that is consistent with the purposes and goals of the draft
designation materials. This change is also a minor variation of the
boundary alternatives previously presented, the impacts of which are
encompassed in the scope of alternatives in the draft EIS, and is thus
qualitatively within the spectrum of alternatives assessed in the draft
EIS. Based on this information, NOAA has determined that there are no
substantial changes to the proposed action that are relevant to
environmental concerns, nor are there significant new circumstances or
information relevant to environmental concerns and bearing on the
proposed action or its impacts. As such, preparation of a supplemental
EIS is not required for this minor change. See final EIS Section 4.9
for more information.
[[Page 83575]]
11. Comment BO-16: NOAA should reconsider an alternative that it
rejected that would have created buffer zones around the harbors and
along their shorelines so that harbor-related activities would not
occur within the sanctuary.
Response: As explained in the draft EIS, NOAA considered but
eliminated from detailed study the request for large exclusion zones
around the two main public harbors in the study area--Morro Bay and
Port San Luis (see EIS Section 3.9.6). None of the facts have changed
related to consideration of exclusion areas for those harbors. In the
Final Preferred Alternative, NOAA is excluding all waters and the
submerged lands that fall within the two existing harbors along this
stretch of coast (Port San Luis and Vandenberg Space Force Base). Note
the waters off Morro Bay Harbor and Diablo Canyon Power Plant marina
are not part of the Final Preferred Alternative. Activities that occur
within the harbors are not affected by sanctuary regulations (with
limited exceptions--e.g., the ``enter and injure'' element of the
discharge regulation could be relevant if, for instance, a hazardous
discharge originated within a harbor and flowed beyond the harbor into
the sanctuary and injured resources). Further, all existing dredge
material disposal sites authorized by the USEPA are being excepted by
regulation (see 15 CFR 922.232(a)(2)(i)(G)); presently NOAA is only
aware of dredge material disposal sites offshore Morro Bay that would
meet this regulatory exception; but as noted above, the waters off
Morro Bay Harbor are not included in the Final Preferred Alternative.
Other regulations have exceptions for activities that are often
commonplace in a sanctuary near a harbor, such as: maintenance dredging
of harbor entrance channels; anchoring a vessel; installing or
maintaining an authorized navigational aid; discharging fish or fish
parts during the conduct of lawful fishing activities. NOAA believes
that the final boundary and the regulations, with appropriate
exceptions, accommodate existing harbor activities and this alternative
is not necessary. See also response to Comment BO-27.
12. Comment BO-17: NOAA should exclude the entire area of the State
tidelands granted to Port San Luis Harbor District (along the shoreline
from Point San Luis to approximately South Palisades Park in Shell
Beach to three miles offshore). The Harbor District has authority for
uses of the submerged lands within this area and applying sanctuary
regulations would create an unnecessary redundancy.
Response: NOAA has already excluded from the sanctuary a very large
area within (shoreward of) the COLREGS line for Port San Luis,
approximately 1.6 square miles under the Initial Boundary Alternative,
alternatives 1-4, and the Final Preferred Alternative. No specific
plans or development proposals have been provided to NOAA to indicate
that the sanctuary's overlapping State tidelands granted to Port San
Luis Harbor District would create conflicts. The State of California
has granted certain State tidelands to various locally-organized harbor
districts for the purposes of creating public access for commercial or
recreational activities through harbor facilities. The State's mandate
for use of these areas is not concentrated on resource conservation,
research and monitoring, education and outreach and the other various
mandates Congress has established for the National Marine Sanctuary
System. Thus, the regulations and other sanctuary management programs
that NOAA could pursue in these waters are not redundant with the
purpose of the waters and State tidelands granted to Port San Luis
Harbor District by the State. See also response to Comment BO-27.
13. Comment BO-18: NOAA should designate the final boundary for the
sanctuary with an exclusion zone along the coast of Pismo Beach, out to
two miles offshore.
Response: NOAA considered but did not conduct a detailed analysis
of this alternative because there was inadequate justification as to
why a separate, special exclusion area was needed for the coastal
waters and submerged lands off the city of Pismo Beach. In the absence
of such justification, this broad exclusion would not meet the purpose
and need of the sanctuary (see EIS Section 3.9.6). Note that NOAA has
included a regulatory exception for any disturbance of the submerged
lands that might occur due to repair and maintenance of any existing
pier or dock in the sanctuary (see 15 CFR 922.232(a)(3)(iv)), so any
repair and maintenance of the Pismo Pier would not require a permit
review by the sanctuary. Many national marine sanctuaries include the
waters and submerged lands offshore of coastal cities and have
developed numerous successful collaborative programs with those local
governments. For example, the Water Quality Action Plan for CHNMS
includes strategies, modeled off similar successful programs in
Monterey Bay National Marine Sanctuary (MBNMS), that showcase
collaboration with cities and other municipalities to help ensure
healthy and safe marine water quality for public enjoyment and for
marine species such as those caught by recreational fishermen. See also
response to Comment BO-27.
14. Comment BO-20: NOAA should designate a new ``Alternative 6''
limited to the shoreline boundary of Alternative 4 but only extending
offshore to 120 ft water depth, deep enough to include the likely
location of paleoshorelines to concentrate the new sanctuary on coastal
features important to local Indigenous Peoples.
Response: NOAA is not adopting this suggestion in the final
sanctuary action because ``Alternative 6'' would not meet the purpose
and need of designating a new sanctuary. The purpose and need includes
not just protection and conservation of cultural heritage features, but
also protection of ecological and ecosystem resources of the area. Note
however that the Final Preferred Alternative adopts a portion of the
request from this comment--the shoreline boundary is Alternative 4
(with a minor modification described in Section 3.5.1 of the final
EIS), with the addition of the shoreline of Sub-Alternative 5b.
15. Comment BO-22: The proposed sanctuary boundary is too large.
Just because cultural artifacts may exist somewhere within its broad
borders does not seem to be a good use of taxpayer money. Significant
cultural sites should first be identified and studied to determine if
special protections are warranted, then a small sanctuary could be
proposed to protect those unique and culturally historic sites.
Response: NOAA disagrees with the premise of the comment. The
purposes of the sanctuary include much more than conservation of
individual, submerged cultural sites. The EIS identifies other
purposes, including conservation of nationally-significant ecological
resources, protecting important physical oceanographic processes,
promoting multiple uses of the sanctuary, conserving and studying
historical shipwrecks, and creating a framework for ecosystem-based and
community-based conservation. Nonetheless the Final Preferred
Alternative does adopt largely the ``Combined Smallest'' boundary, with
several small additions included.
16. Comment BO-27: Special boundary exclusions should be minimized,
as they will distract from NOAA's ability to manage the whole of the
ecosystem and result in adjacent development that can harm sanctuary
resources.
Response: Largely, NOAA agrees with the comment. Numerous small,
special
[[Page 83576]]
exclusions within a sanctuary for different purposes and needs could
create significant challenges managing the ecosystem as a whole and
could complicate enforcement. This practice generally is avoided in
national marine sanctuaries. To aid overall management, the Final
Preferred Alternative does not have small inclusion or exclusion areas
that were recommended in other comments, other than the existing
coastal harbors, as has been the practice for many other national
marine sanctuaries. These areas are excluded in recognition that there
can be numerous activities and structures necessary within a harbor
that may otherwise be inconsistent with a national marine sanctuary and
are best managed by local authorities.
17. Comment PN-2: NOAA should provide more justification for the
sanctuary designation, including: specific requests and documentation
of the benefits of the sanctuary to the Federal government;
documentation of consistency with designation criteria; and
justification for the national significance of resources throughout the
geographic extent of the sanctuary.
Response: NOAA documented the anticipated beneficial impacts of the
proposed sanctuary on the appropriate resources and sectors in Chapter
4 of the EIS. Regarding documentation of the designation criteria, NOAA
has determined that the sanctuary would effectively manage and conserve
nationally-significant biological, ecological, physical, cultural, etc.
resources consistent with NOAA's mandate under the NMSA. In particular,
Chapter 2 of the EIS describes the national significance of the
resources in the sanctuary area, with reference to the national
significance criteria that NOAA applied in considering the nomination
of CHNMS. Further discussion of the nationally significant resources in
the Initial Boundary Alternative (in other words, the full geographic
extent of the area considered for sanctuary designation) is contained
throughout Chapter 4. NOAA's documentation of the affected environment
demonstrates the presence and importance of nationally-significant
resources throughout the Initial Boundary Alternative. As explained in
the EIS, an assessment and basis for why the proposed sanctuary meets
the designation standards and factors is discussed throughout the EIS;
in particular, see chapters 2 and 3 and Appendix E.1.
While current technical/scientific/cultural surveys do not permit
the level of mapping detail requested by one commenter at this time, it
is also not necessary to generate this information and not required by
the NMSA or NEPA. NOAA has extensively demonstrated the national
significance of resources throughout the area. The entirety of the area
supports ecosystem connectivity necessary for the health of the
biological resources, and NOAA has learned from Tribes and Indigenous
groups about the cultural significance throughout the area.
18. Comment RP-1: Stronger regulations should be adopted, including
restrictions on fishing, speed limits for ships, designating areas to
be avoided, regulation of recreational activities, imposing a
requirement to decommission and dismantle all offshore energy platforms
and turbines, and removing exceptions for existing oil and gas
production. Providing exceptions or exemptions would increase the risk
of damage to the marine environment. The proposed regulations are not
strong enough to meet the purposes of the NMSA or the need for the
proposed sanctuary, and activities which could be harmful to the
sanctuary should not be granted permits.
Response: Under the NMSA, a purpose and policy of sanctuaries is to
``facilitate to the extent compatible with the primary objective of
resource protection, all public and private uses of the resources of
these marine areas not prohibited pursuant to other authorities.'' 16
U.S.C. 1431(b)(6). NOAA believes that the regulations effectively
balance resource protection goals while allowing for compatible uses in
the sanctuary, and therefore, the regulations meet the purpose and need
of the sanctuary. Once designated, NOAA will monitor and evaluate
threats to sanctuary resources and consider, where appropriate, the
need to propose additional regulatory actions. The management plan
identifies many non-regulatory, programmatic measures (e.g., voluntary
vessel speed reduction) whereby NOAA would address threats to sanctuary
resources. See topic-specific comments and responses (e.g., fishing,
oil, and gas) for additional details regarding specific regulations.
Regarding decommissioning of oil and gas platforms, NOAA's regulations
would accommodate the processes and requirements of the State and of
the Bureau of Safety and Environmental Enforcement (BSEE) (see response
to Comment OG-15). Although the regulations prohibit abandoning
structures on the submerged lands of the sanctuary, as well as other
activities that could occur during and after decommissioning, NOAA
could issue permits, authorizations, or certifications (as appropriate)
to enable the removal and/or disposal, in a manner compatible with the
sanctuary's purposes, of structures related to oil and gas development.
Regarding OSW turbines, BOEM, BSEE, or California State requirements
may govern decommissioning and removal, and NOAA would also, in
reviewing any permit proposals for such structures, consider terms and
conditions reasonably necessary to protect sanctuary resources (see
responses to Comments RP-2 and RP-11).
See Section 3.9.7 of the final EIS for NOAA's explanation on why
the regulations do not address issues regarding fishing restrictions,
vessel speed limits, designating areas to be avoided, and regulation of
recreational activities.
19. Comment RP-5: The proposed regulations would duplicate other
Federal and State laws (e.g., Clean Water Act, CEQA) and duplicate
authorities of other councils and government agencies (e.g., California
Coastal Commission, California State Lands Commission, USACE). These
overlapping authorities are burdensome, difficult for members of the
public to understand, and a waste of governmental resources. Rather
than adding layers of regulation, NOAA needs to coordinate and
collaborate within the existing regulatory system. In addition,
existing regulations are already enforced by the California Department
of Fish and Wildlife (CDFW) and Pacific Fisheries Management Council
(PFMC).
Response: In developing sanctuary regulations, NOAA carefully
considers the role that existing State and Federal laws and authorities
play with relation to the sanctuary's purpose, including those listed
in Appendix F of the EIS. NOAA is guided by the NMSA, which in Section
301(b)(2) states that one purpose of national marine sanctuaries is
``to provide authority for comprehensive and coordinated conservation
and management of these marine areas, and activities affecting them, in
a manner which complements existing regulatory authorities.'' 16 U.S.C.
1431(b)(2). Through successful coordinated management of CINMS, MBNMS,
and Greater Farallones National Marine Sanctuary (GFNMS), NOAA has
decades of experience implementing and refining sanctuary regulations
that harmonize with and augment California State laws and
jurisdictions, as well as Federal laws and authorities. Further, the
proposed regulations are largely modeled off of and consistent with
regulations for other California national marine sanctuaries.
[[Page 83577]]
NOAA looks forward to continued partnership with State and Federal
agencies to leverage resources and achieve greater resource management
effectiveness and efficiencies. NOAA does not consider sanctuary
regulations to be overly burdensome, and has provided several logical
exceptions and permitting options to allow the continuation of
activities that are compatible with the sanctuary's goals. Non-
regulatory programs at CHNMS will be a central focus of how NOAA
manages the new sanctuary, for instance various education and outreach
initiatives to help the public understand and support the protections
put in place for the new sanctuary (see the Education and Outreach
Action Plan in the final management plan). Also, see responses to
comments GN-2 (opposition to sanctuary), GN-11, and WQ-9 (duplicative
regulations), and final EIS Section 2.2.1. Final EIS Section 2.2.1
provides a detailed discussion of why a comprehensive management
approach offered by national marine sanctuary designation is needed to
protect the resources of this area, including specific examples of the
sanctuary regulatory and non-regulatory programs that could help fill
existing gaps in protection and management.
20. Comment RP-6: Shipwrecks do not need additional protections.
Response: NOAA believes that providing supplemental, coordinated
management (consistent with the NMSA) of historical resources,
including shipwrecks, will provide more comprehensive protection for
these nationally-significant maritime heritage resources. Protection of
shipwrecks under complementary statutes (e.g., NMSA and Sunken Military
Craft Act) and programs are not mutually exclusive. Also, the State of
California's protection of shipwrecks only extends to 3 nautical miles
(nmi) from shore, while the Federal protection provided by sanctuary
regulations (see 15 CFR 922.232(a)(4) extends much further offshore, up
to 59 miles (depending on the boundary alternative). See also Section
4.5.3 of the final EIS, which provides a detailed discussion of the
beneficial impacts that sanctuary designation would provide for
maritime heritage resources, stemming from additional regulatory
protection to prevent harm to these resources, as well as improved
coordination, research and monitoring, and enhancing community
collaboration.
21. Comment RP-7: The proposed prohibition on drilling into or
altering submerged lands should be removed.
Response: The seabed protection regulation (15 CFR 922.232(a)(3))
will provide core protection to the sanctuary's submerged lands. It is
central to addressing known and future threats to sanctuary resources
and thus to meeting the resource protection and management needs of the
sanctuary. NOAA provides important exceptions to this prohibition, such
as for conducting lawful fishing activities or kelp harvesting,
anchoring a vessel, dredging entrance channels for existing harbors,
and maintaining an existing dock, pier, breakwater or jetty. For other
activities, with some exceptions, that might disturb the seabed, NOAA
may issue a permit to allow the activity to occur. For more information
about sanctuary permits, see Section 3.2.2 of the final EIS and
regulations at 15 CFR 922 Subpart D. See also responses to Comments OG-
13 and OG-14.
22. Comment OG-1: The final regulations and management plan must
permanently prohibit any and all oil and gas development or mining,
current or in the future. The sanctuary should require cancellation of
existing leases, and hasten decommissioning of existing platforms,
pipelines, and other infrastructure. Continued oil and gas activities
risk harmful oil spills and harm endangered species. No permits or
authorizations for any oil and gas or mining should ever be allowed in
the new sanctuary.
Response: NOAA lacks authority to terminate valid leases, permits,
licenses, or rights of subsistence use or access that exist at the time
of sanctuary designation, although NOAA may regulate the exercise of
those leases, permits, licenses, and rights consistent with the
purposes for which the sanctuary is designated. See 16 U.S.C. 1434(c).
Final sanctuary regulations do not prohibit oil and gas development
pursuant to leases in effect at the time of sanctuary designation. Oil
and gas operators have rights to that development, as set forth in
lease agreements pursuant to OCSLA.
Sanctuary regulations will, however, otherwise prohibit new oil and
gas exploration, production, or development after sanctuary
designation. Likewise, the regulations will prohibit exploring for,
producing, or developing minerals in the sanctuary, and thus no mining
in the sanctuary would be allowed. Furthermore, the regulations will
provide that NOAA cannot issue permits or authorizations that would
allow for any further exceptions to the prohibition on exploring for,
producing, or developing oil, gas, or minerals in the sanctuary (see 15
CFR 922.232(f)).
23. Comment OG-2: Any platforms that are no longer producing at the
time the sanctuary is designated, regardless of the reason, should be
decommissioned, not restarted. For instance, Exxon is working to
restart offshore oil platforms that are outside all alternative
boundaries, but the infrastructure (i.e., pipelines) is located within
the boundaries of Sub-Alternative-5b (Gaviota Coast Extension). The
sanctuary should evaluate the safety of restarting this shut down
pipeline within its boundaries, in particular because operators of
those platforms have had spills in the past and there is risk of spills
in the future.
Response: NOAA will coordinate with operators and BSEE and any
State agencies as appropriate to ensure development from an existing
oil and gas platform that may recommence after sanctuary designation
does so in a manner that minimizes the risk of oil spills or any other
potential impact on sanctuary resources. See also response to Comment
OG-1.
24. Comment OG-3: NOAA's final rule needs to make clear that
exploration for oil and gas reserves includes any high energy seismic
testing and is thus prohibited.
Response: NOAA has always considered exploration for oil and gas
reserves to include high energy seismic survey testing from equipment
towed behind a vessel or operated autonomously from a vessel or from
shore for the purpose of locating oil and gas reserves in the submerged
lands. That activity would be prohibited in the sanctuary. However,
other seismic survey work would not be prohibited if its purpose was
for identifying other geological features such as a fault. Thus, the
purpose for the survey work matters. Note however that any high energy
survey work for purposes other than exploration for oil and gas
reserves might be a violation of the sanctuary's regulations if that
activity might take, harm or otherwise disturb a marine mammal, sea
turtle or bird (see 15 CFR 922.232(a)(5)).
25. Comment OG-4: The final sanctuary regulations should ban any
and all oil-related pipelines that could be proposed to cross the
sanctuary borders.
Response: Any new oil or gas pipeline, except within the limited
exception described in the response to Comment OG-1, would be
prohibited within sanctuary boundaries and could not be permitted. The
prohibition on oil and gas development (15 CFR 922.232(a)(1)) extends
to ancillary facilities related to exploration or development of
hydrocarbons within the sanctuary. NOAA does not consider this
prohibition to apply per se to
[[Page 83578]]
abandonment, decommissioning or removal of existing pipelines, which
can be permitted. Nor does this prohibition extend to disturbance of
the seabed due to repair and maintenance of existing pipelines, for
which the proposed sanctuary regulations would allow NOAA to issue a
permit.
26. Comment OG-8: NOAA's proposed regulations impermissibly
terminate the development potential of the Santa Ynez Unit leases by
limiting existing oil and gas development to reservoirs under
development at the time of designation. The leaseholder has a right to
develop any reservoir within that lease area and the regulations need
to be changed to reflect this. If NOAA is concerned about seafloor
penetrations, it could limit development to only those seafloor
penetrations at the time of designation.
Response: Leases (and lease units) issued to Exxon to develop the
Santa Ynez Unit (and Freeport-McMoRan to operate the Point Pedernales
project) allow development of any reservoir or geological formation
within the boundary of the lease (or lease unit). Therefore, NOAA has
amended the proposed language for the exception to the general
prohibition on oil and gas development to remove the term ``existing
reservoirs under production prior to the effective date of Sanctuary
designation'' and replaced it with ``existing leases or lease units in
effect on the effective date of Sanctuary designation'' (see 15 CFR
922.232(a)(1)). Accordingly, production can continue pursuant to any
lease or lease unit in effect at the time of designation through this
exception to the prohibition on oil and gas development.
27. Comment OG-14: The regulatory exceptions for certain oil and
gas activities should be expanded to include platform abandonment and
decommissioning. Discharges during decommissioning and removal would be
analogous to those that occur during regular oil and gas operations,
which have an exception. No rationale is provided why this should
require permits when other activities are excepted. Both BSEE and
California State Lands Commission leases assert a lessee has a right to
abandonment and decommissioning.
Response: As stated in responses to other comments, NOAA is
granting an exception to allow existing oil and gas activities
including discharges or drilling into reservoirs far below the seabed.
Discharges or drilling within or into such reservoirs are not expected
to cause any direct impact on living marine resources. Conversely,
discharges within or into the sanctuary waters, or disturbance directly
onto or in the upper layers of the submerged lands could harm such
sanctuary resources, and thus are activities that NOAA believes are
important to regulate in order to further the purposes of the
sanctuary. Therefore, NOAA is not providing an exception for those
discharges or disturbances to the submerged lands. Abandonment,
decommissioning, and removal activities for oil and gas platforms and
pipelines could have discharges within or into sanctuary waters and
disturbance directly onto or in the upper layers of the submerged
lands, activities for which NOAA is consistently exercising regulatory
control and not allowing via regulatory exception. New discharges that
have not been permitted at the time of sanctuary designation, including
those which may be necessary during abandonment, decommissioning, and
removal activities or from routine oil and gas production activities,
would require a sanctuary general permit or ONMS authorization. Like
other Federal and State agencies, NOAA is interested in seeing these
facilities ultimately removed and their past development sites
restored. It is important that NOAA has the ability to review those
activities within the sanctuary to ensure potential impacts on
sanctuary resources are avoided or feasibly mitigated. See also
response to Comment OG-12.
28. Comment OG-20: NOAA should require full removal of all oil and
gas development platforms, other infrastructure such as pipelines and
cables, and any remaining residue, like shell mounds and debris, as
required by lease agreements and Federal law.
Response: As stated in revised Section 4.7.1 of the final EIS, NOAA
understands that the baseline position of Federal and State agencies
responsible for decommissioning and removal of facilities for oil and
gas development is to require full removal. NOAA has no objections to
this as the baseline assumption. NOAA also anticipates that
alternatives to full removal for all facilities will be analyzed once
specific plans for facilities are completed. See also response to OG-
21.
29. Comment OW-1: All aspects of offshore wind development are
incompatible with a national marine sanctuary and the regulations and
management plan need to clearly explain that such development is
inherently incompatible with a national marine sanctuary. These are
industrial facilities, like oil and gas platforms and pipelines, that
can harm myriad sanctuary resources in diverse ways during
construction, operation, and removal. There has been no research on
adverse impacts and no proof of safe installation and operation
methods.
Response: NOAA's final designation materials (response to comments,
final EIS, final management plan) for the sanctuary do not make any
policy statements that offshore wind development is inherently
incompatible with the sanctuary. Any decision about whether a
particular offshore wind development project is compatible with the
sanctuary will be made on a case-by-case basis, as needed, for a
particular proposed project or permit reviews. For instance, in
anticipation of sanctuary designation, NOAA is participating in the
review with other State and Federal agencies of the CADEMO offshore
floating wind project, in State waters off Vandenberg Space Force Base.
Based on that review and consultation with agency partners, if the
sanctuary is designated, NOAA will make a final decision on the
compatibility of that project's offshore wind platforms and subsea
electrical transmission cables to shore. Depending on the final
boundary for the sanctuary and the design of cable routes to shore,
NOAA may also request to serve as a cooperating agency with BOEM when
it initiates environmental review of the construction and operation
plan(s) for the wind farm leases off Morro Bay. Participating and
coordinating in these review processes will allow NOAA to ensure that
any potential impacts on sanctuary resources are well understood and
effectively mitigated.
There is precedent for NOAA approval of submarine cables (mostly
fiber optic cables) that are within a national marine sanctuary or that
pass through a sanctuary. The final designation materials make clear
that NOAA believes subsea electrical transmission cables, like
submarine fiber optic cables in this and other sanctuaries, can be
compatible with a sanctuary and can be approved subject to sufficient
environmental review, mitigation, and consultation with partner
agencies and provided an applicant satisfies permit review criteria.
30. Comment OW-3: Offshore floating wind platforms within the
sanctuary are incompatible with a sanctuary and can not be permitted.
However, the subsea electrical transmission cables that bring power to
shore from wind farms beyond the sanctuary boundary are possibly
compatible and could be approved provided NOAA exercises control over
the siting, environmental review, and permitting of those cables for
portions within the sanctuary.
[[Page 83579]]
Response: The final EIS indicates that future development of a
large wind farm within Federal waters of the area proposed for
sanctuary designation is not reasonably foreseeable, and is in fact
highly unlikely. Upon sanctuary designation, such development in
Federal waters would likely be excluded. The Outer Continental Shelf
Lands Act (OCSLA) prohibits BOEM from leasing areas within sanctuary
waters (see EIS Section 4.7.3). NOAA does not have authority under the
NMSA to provide a leasing mechanism to allow offshore wind platforms
within a national marine sanctuary.
The State of California retains authority to issue leases for wind
platforms in State waters of the sanctuary. As noted in responses to
comments OW-1 and OW-33, NOAA is participating in the environmental
review for the CADEMO project in State waters where four offshore
floating wind platforms are proposed. That review process will provide
NOAA appropriate, project-specific information and the opportunity to
coordinate with State agency partners on the appropriate action for
that proposal.
NOAA concurs with the comment that subsea electrical transmission
cables transporting power to shore from wind farms beyond the
sanctuary, where such cables pass through the sanctuary, can be
permitted and can be considered compatible with the sanctuary subject
to proper siting, environmental review, and collaboration with partner
agencies and provided an applicant satisfies permit review criteria.
31. Comment OW-14: The Agency-Preferred Alternative does not
provide an adequate space to allow for subsea electrical transmission
cable construction that avoids the need for a sanctuary permit.
Moreover, the industry standard for the distance between cables is
three times (3x) water depth. So with the new industry projection of up
to 24 subsea electrical transmission cables, the exclusion area must be
vastly larger than allowed in the Agency-Preferred Alternative.
Response: NOAA understands that the offshore wind industry has a
goal to plan and route cables from the three Morro Bay wind leases to
shore and not pass through a national marine sanctuary, to avoid
seeking a permit from NOAA. NOAA concurs that the draft Agency-
Preferred Alternative would not exclude enough space to achieve
industry's objective to avoid passing any cables through the sanctuary,
given clarifying comments received in this rulemaking about the number
of cables, distance needed between cables, need to plan for broad
curves in subsea cables rather than sharp turns, space to plan crossing
other cables at right angles, and shoreside landing sites. Other
comments suggest that the boundary alternative proposed by American
Clean Power would exclude enough space to achieve the objective of
avoiding sanctuary waters. The three leaseholders have since
acknowledged that the American Clean Power alternative would not
exclude enough space, and they instead believe NOAA should adopt
Alternative 4 to achieve the goal of maximizing flexibility in cable
routing to avoid this or other national marine sanctuaries.
NOAA has identified the Final Preferred Alternative for reasons
explained in more detail in Section 5.4.9 of the final EIS, in part to
allow the offshore wind industry to achieve its goals with respect to
the Morro Bay leases. If in the future, offshore wind developers
propose subsea electrical transmission cables to pass through this or
another sanctuary, NOAA is confident that it has an adequate permit
process to review, consider, and ultimately approve, as appropriate,
subsea electrical transmission cables. See also the response to
Comments OW-1, BO-1, and BO-11.
32. Comment OW-16: The regulatory approach for offshore wind-
related cable installation, repair, maintenance, operations and removal
articulated in the draft EIS is not clear, well-defined, or timely. The
lack of clarity in the permitting option(s) presents complications for
subsea electrical transmission cables, and would add an additional
layer of uncertainty for offshore wind projects. Since submarine cables
can be built and operated consistent with the protection of sanctuary
resources, it is important to maintain regulatory flexibility and
ensure a reasonable regulatory pathway exists for studying, installing,
and operating submarine cables within the sanctuary. NOAA needs to
better explain the permitting process and requirements for offshore
energy transmission cables in the sanctuary, including the terms and
conditions, standards for evaluating permits, and mitigation measures.
Reliance on the special use permit, which can only be issued for five
years, creates uncertainty for offshore wind development.
Response: Responses to numerous comments in this rulemaking provide
additional detail that indicate NOAA's willingness to permit submarine
cables--both subsea electrical transmission cables and submarine fiber
optic cables--upon satisfaction of permit review criteria and
environmental review, and that it has a fair and robust process for
considering and approving such permits. In 2011, NOAA published a
document providing policy and permitting guidance for submarine cables
within national marine sanctuaries (hereafter ``cable permitting
guidelines''; NOAA 2011). That document provides considerable detail
about how a developer can apply for a permit, what permit is required
for different types of cables based on their purpose, and what can be
expected regarding potential standard conditions, monitoring
expectations, and other requirements. While the original impetus for
that document centered around submarine fiber optic cables, the cable
permitting guidelines are written to generally apply to any submarine
cable project proposed within a national marine sanctuary. As described
in sections 4.7.1 and 4.7.3 of the final EIS, at this time NOAA's cable
permitting guidelines indicate that an ONMS authorization of a USACE
permit to install a subsea electrical transmission cable would be the
most likely and appropriate permitting approach. NOAA's current cable
permitting guidelines contemplate that NOAA has the discretion to issue
a special use permit to authorize the continued presence of the cable
on or in the seabed within the sanctuary, however, NOAA has modified
the special use permit category for such cables so that it does not
apply to sanctuaries designated after August 16, 2024, as described
below.
In 2024, NOAA plans to update the cable permitting guidelines in an
action, subject to public review and comment, separate from this
sanctuary designation. NOAA announced this commitment in a Federal
Register Notice on August 16, 2024 (89 FR 66689). With this notice,
NOAA also announced that the special use permit category for the
continued presence of commercial subsea cables is modified such that,
for a two-year period, it does not apply to sanctuaries designated
after August 16, 2024, including CHNMS. During this timeframe, the
continued presence of subsea cables in CHNMS will not be subject to
special use permit requirements. The temporary suspension affords NOAA
time to re-evaluate the need for updating the special use permit
category, publish any proposed updates to the category and/or implement
guidance for the category, consider and respond to public comment, and
finalize any updates to the category. NOAA will publish Federal
Register Notices for any subsequent updates (see final EIS Chapter 3,
Section 3.2.2). During this
[[Page 83580]]
temporary suspension, NOAA will not have discretion to require or issue
special use permits for submarine cables in newly designated
sanctuaries.
The CHNMS regulations on disturbance of the submerged lands are
modeled off, and largely consistent with, the comparable regulations
for other sanctuaries offshore California. NOAA considers it preferable
to provide consistent, system-wide cable permitting clarifications and
guidance through the separate action described above, rather than alter
the CHNMS regulations through this CHNMS-specific designation.
As addressed in responses to Comments BO-1, OW-8, OW-10, OW-14 and
others, NOAA is nonetheless identifying a Final Preferred Alternative
that would adjust the CHNMS boundary to largely eliminate the need for
any of the developers of wind leases offshore Morro Bay to route a
cable through and seek a permit from NOAA.
33. Comment OW-21: The regulatory prohibition on developing oil,
gas or minerals needs to be clear that it would not restrict
development of ``green hydrogen.'' Specifically, the regulations should
exempt development of green hydrogen and its transport to shore via
pipelines through the sanctuary.
Response: The final CHNMS regulations prohibit the exploration and
development of oil and gas specifically, as well as ``minerals.'' NOAA
does not consider ``green hydrogen'' to be oil, gas, or minerals. The
sanctuary regulations are not intended to create an absolute
prohibition on offshore dev
[…truncated; see source link]Indexed from Federal Register on October 16, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.