Chumash Heritage National Marine Sanctuary

Federal RegisterOct 16, 2024

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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.

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

) (3,431 square nautical miles (nmi

)) 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:

https://www.congress.gov/days-in-session

. 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:

https://sanctuaries.noaa.gov/chumash-heritage/

FOR FURTHER INFORMATION CONTACT:

Laura Ingulsrud, West Coast Regional Policy Analyst, 99 Pacific Street, Suite 100F, Monterey, CA 93940, 831-647-6450,

laura.ingulsrud@noaa.gov

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

(3,431 nmi

) 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

, 114 nmi

) 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

in this area for CHNMS.

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.

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

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:

• 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;

• 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;

• 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;

• 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,

• 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

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:

https://www.nominate.noaa.gov/nominations

On November 10, 2021, NOAA began the sanctuary designation process for the proposed CHNMS by publishing a notice of intent (86 FR 62512) to prepare a draft EIS as well as other pertinent designation materials such as a draft management plan, terms of designation, and 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,

a proposed rule with terms of designation and proposed regulations (88 FR 58123), and a draft environmental impact statement.

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

regulations.gov

(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

regulations.gov

(docket #NOAA-NOS-2021-0080).

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-deis.pdf.

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

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 tiłhini 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 Barbareño/Ventureño 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:

• The Framework for Indigenous Collaborative Co-Stewardship in the Introduction was revised to clarify collaborative management roles and responsibilities;

• Nearly all action plans were enhanced with new or clarified activities, or potential partners, based on public comments; and

• 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

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 (

https://sanctuaries.noaa.gov/chumash-heritage

) 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

; 5,718 nmi

; 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:

• Alternative 1, Bank to Coast, which focused management from the Santa Lucia Bank to the coast (6,098 mi

; 4,605 nmi

; 152 miles of mainland coast);

• Alternative 2, Cropped Bank to Coast (5,553 mi

; 4,194 nmi

; 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;

• 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

; 4,382 nmi

; 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);

• Alternative 4, Combined Smallest, excluded both the western and northern offshore areas focusing management on the smallest area (4,328 mi

; 3,268 nmi

; 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:

• Sub-Alternative 5a, Morro Bay Estuary (2.5 mi

; 1.9 nmi

; 11 miles of mainland coast), would include the tidally-influenced portions of Morro Bay Estuary and could be added to the Initial Boundary Alternative or Alternative 1 (but would not be added to alternatives 2-4);

• Sub-Alternative 5b, Gaviota Coast Extension (64 mi

; 48 nmi

; 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:

• Changing the preferred alternative;

• 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;

• Excluding the small harbor area at Vandenberg Space Force Base;

• 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;

• Changes to streamline and clarify the certification process;

• 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

• 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

Final Preferred Alternative covers 4,543 mi

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 Capitán—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

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

(3,400 nmi

) 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

(3,400 nmi

) 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

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.

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

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.

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

) (3,400 square nautical miles (nmi

) 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.

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 § 922.230 and the coordinates are located in 15 CFR part 922, subpart V, appendix A.

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,

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

(430 nmi

) 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 § 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.

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.

Final Programmatic EIS for Oil and Gas Decommissioning Activities on the Pacific OCS (BSEE & BOEM, 2023)

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

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,

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

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.

https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/library/pdfs/subcable_final_guidance_2011.pdf

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.

• 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.

• 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.

• 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.

• 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

requirements of section 310 of the NMSA.

• 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.

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:

• DoD approval is required for these activities.

• DoD conducts NEPA reviews for these activities. Other Federal agencies, such as the Federal Aviation Administration and/or the U.S. Coast Guard, may be cooperating agencies for purposes of these NEPA reviews.

• DoD also conducts all required natural and cultural resource consultations for these activities.

• Civil partners and commercial providers conducting these activities are required to comply with DoD best management practices.

NOAA advises that based on public comments received, additional coordination with DoD, and NOAA's experience administering the National Marine Sanctuary System, pursuant to NEPA and the Administrative Procedure Act, 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

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 § 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 § 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 § 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

occurring within CHNMS that would otherwise be prohibited by sanctuary regulations. Therefore, NOAA has included § 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 § 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 § 922.36 in the national regulations and § 922.232(e) in the CHNMS regulations, NOAA will have the authority to consider allowing an activity otherwise prohibited by § 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 § 922.232(e) and as limited in § 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

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:

• Section 922.1 Purposes and applicability of the regulations

• Section 922.4 Boundaries

• Section 922.5 Allowed activities

• Section 922.6 Prohibited or otherwise regulated activities

• Section 922.30 National Marine Sanctuary general permits

• Section 922.36 National Marine Sanctuary authorizations

• Section 922.37 Appeals of permitting decisions

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.

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.

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.

https://www.fisheries.noaa.gov/feature-story/whales-and-carbon-sequestration-can-whales-store-carbon

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).

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.

Comment BO-1:

NOAA should close the gap created between Cambria and Montaña 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

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

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.

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.

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.

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.

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.

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.

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 caug

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