Olympic Coast National Marine Sanctuary Regulations; Final Rule DEPARTMENT OF COMMERCE

SUMMARY: The National Oceanic and Atmospheric Administration (NOAA), by

the Designation Document contained in this document, and as required by

section 205(a)(4) of Public Law No. 100-627, designates an

approximately 2,500 square nautical mile area of coastal and ocean

waters, and the submerged lands thereunder, off the Olympic Peninsula

of Washington State, including the waters of the Strait of Juan de Fuca

eastward to Koitlah Point, as the Olympic Coast National Marine

Sanctuary (Sanctuary). This document publishes the final Management

Plan detailing the goals and objectives, management responsibilities,

research activities, interpretive and educational programs, and

enforcement, including surveillance, activities for the Sanctuary.

Further, NOAA, by this document, issues final regulations to

implement the designation by regulating activities affecting the

Sanctuary consistent with the provisions of the Designation Document.

The intended effect of these regulations is to protect the

conservational, recreational, ecological, historical, research,

educational, and aesthetic resources and qualities of the Sanctuary.

Effective Dates: Pursuant to section 304(b) of the Marine Protection,

Research, and Sanctuaries Act (16 U.S.C. 1434(b)), the Governor of the

State of Washington has 45 days of continuous session of Congress

beginning on the day on which this notice is published to review the

designation and regulations before they take effect. After 45 days, the

designation and regulations automatically become final and take effect.

However, if the Governor of the State of Washington certifies within

the 45-day period to the Secretary of Commerce that the designation or

any of its terms are unacceptable, the designation or the unacceptable

terms cannot take effect in the area of the Sanctuary lying within the

seaward boundary of the State. If the Secretary considers that such

disapproval will affect the designation in a manner that the goals and

objectives of the Sanctuary cannot be fulfilled, the Secretary may

withdraw the designation. A document announcing the effective date will

be published in the Federal Register.

ADDRESSES: Copies of the Final Environmental Impact Statement and

Management Plan (FEIS/MP) prepared for the designation are available

upon request from the Sanctuaries and Reserves Division, Office of

Ocean and Coastal Resource Management, National Ocean Service, National

Oceanic and Atmospheric Administration, 1305 East West Highway, Silver

Spring, MD 20910, (301) 713-3125.

FOR FURTHER INFORMATION CONTACT: Nina Garfield, (301) 713-3141.

SUPPLEMENTARY INFORMATION:

I. Background

Section 303 of the Marine Protection, Research, and Sanctuaries

Act, as amended (the ``Act'' or ``MPRSA''), 16 U.S.C. 1433), provides

that the Secretary may designate any discrete area of the marine

environment as a National Marine Sanctuary if the Secretary determines

that such designation will fulfill the purposes and policies of the Act

as set forth in section 301(b) (16 U.S.C. 1431(b)) and finds that:

(1) The area is of special national significance due to its

resource or human-use values;

(2) Existing state and Federal authorities are inadequate or should

be supplemented to ensure coordinated and comprehensive conservation

and management of the area, including resource protection, scientific

research, and public education;

(3) Designation of the area as a national marine sanctuary will

facilitate the coordinated and comprehensive conservation and

management of the area; and

(4) The area is of a size and nature that will permit comprehensive

and coordinated conservation and management.

The authority of the Secretary to designate national marine

sanctuaries and administer the other provisions of the Act has been

delegated to the Under Secretary of Commerce for Oceans and Atmosphere

by DOC Organization Order 10-15, section 3.01(z), January 11, 1988. The

authority to administer the other provisions of the Act has been re-

delegated to the Assistant Administrator of NOAA for Ocean Services and

Coastal Zone Management by NOAA Circular 83-38, Directive 05-50,

September 21, 1983, as amended.

The coastal and ocean waters off the Olympic Coast were recognized

for their high natural resource and human use values and placed on the

National Marine Sanctuary Program Site Evaluation List (SEL) in August

of 1983 (48 FR 35568). In 1988, Congress reauthorized and amended the

Act and directed the Secretary to designate the Olympic Coast National

Marine Sanctuary (Pub. L. 100-627, section 205(a)). In report language

accompanying this legislation, Congress noted that the Olympic Coast

possesses a unique and nationally significant collection of flora and

fauna, and that adjacency of the area to the Olympic National Park

merits the designation of this area as a national marine sanctuary (H.

Rep. No. 4210, 100th Cong., 1st. Sess., 1988).

NOAA held four scoping meetings in Washington State April 10-13,

1989, to solicit public comments on the designation: Aberdeen on April

10, Port Angeles on April 11, Forks on April 12, and Seattle on April

13 (45 FR 10398, March 13, 1989).

On September 20, 1991, NOAA published a proposed Designation

Document and proposed implementing regulations and announced the

availability of the Draft Environmental Impact Statement/Management

Plan (DEIS/MP) (56 FR 47836). Public hearings to receive comments on

the proposed designation, proposed regulations, and DEIS/MP were held

on November 6th in Port Angeles, November 7th in Seattle, November 12th

in Olympia, November 13th in Aberdeen, November 14th in Seaview, and

November 20th in Washington DC. On November 14th, 1991, the period for

submitting public comments was extended from November 27th, 1991 to

December 13th, 1991 pursuant to requests from the State of Washington

and the coastal counties (56 FR 57869). All comments received by NOAA

in response to the Federal Register notice and at the public hearings

were considered and, where appropriate, incorporated in the final

regulations and FEIS/MP. A summary of the comments on the proposed

regulations and the regulatory elements of the DEIS/MP and NOAA's

responses to them follow.

II. Comments and Responses

Issue: Boundaries

Boundary Alternative 1

Comment: NOAA should choose boundary alternative 1 because: (1) it

contains most of the unique ecological features off the Washington

Coast; (2) NOAA can offer greater protection to the coastal features

than the resources further offshore in the event of a spill of

hazardous materials; and (3) vessel traffic would be least affected,

thereby ensuring safer seas.

Response: NOAA disagrees. Boundary alternative 1 contains most of

the ecological features visible above the sea surface. However, a

marine sanctuary should encompass a discrete ecological unit with

definable boundaries (16 U.S.C. 1433 (b)(1)(F)). The marine mammals and

seabirds that transit the waters off the Olympic Peninsula and colonize

the offshore rocks and islands forage in the rich waters and benthic

communities over and on the continental shelf. The shelf is broad off

the Strait of Juan de Fuca. The seaward extent of the shelf coupled

with the upwelling produced from the Juan de Fuca Canyon are the

physical parameters that support the food chain from the plankton to

the marine mammals and seabirds. The offshore rocks and intertidal

communities are only one habitat within the marine ecosystem off the

Olympic Coast. Therefore, the marine sanctuary should encompass the

ecologically significant offshore waters.

With respect to NOAA's ability to protect the offshore waters in

the event of a spill, NOAA agrees that there is little that can be done

once a spill has occurred. The high seas would most likely render

response capabilities ineffective. However, NOAA will coordinate with

the U.S. Coast Guard, the Washington State Office of Marine Safety, and

the coastal tribes to ensure that there is an adequate response

capability for the coastal waters, intertidal regions, and beaches

along the sanctuary including seabird and marine mammal rescue

capabilities.

Extension of the Sanctuary boundary to the shelf edge provides a

buffer area for protecting the coastal resources. NOAA is working with

the U.S. Coast Guard to develop a proposal for an Area to be Avoided

(ATBA) from the shoreward boundary to 25 nautical miles offshore of the

Olympic Peninsula. This ATBA is designed to provide sufficient time to

respond to a vessel that loses power off the Olympic Peninsula. The

ATBA is compatible with many of the existing voluntarily adhered to

traffic patterns along the coast and thus adds only minimal time and

distance to transits between the Strait of Juan de Fuca and

destinations to the south.

Boundary Alternative 2

Comment: NOAA should choose boundary alternative 2 as the preferred

alternative.

Response: NOAA disagrees for the same reasons stated in response to

the previous comment. The seaward extent of boundary alternative 2,

which approximates the 50 fathom isobath, has no relation to the

seaward extent of the coastal ecosystem.

Boundary Alternative 3

Comment: NOAA should choose boundary alternative 3 as the preferred

alternative.

Response: Boundary Alternative 3 excludes the Juan de Fuca Canyon,

which is one of the richest regions of the offshore oceanic ecosystem.

It also excludes some of the highest concentrations of human uses which

threaten the health of the marine ecosystem off the Olympic Peninsula.

Comment: NOAA should not choose boundary alternative 3 as the

preferred alternative because it will be too restrictive for vessel

traffic.

Response: NOAA is proposing no regulations that will unduly

restrict vessel traffic. (See response to comment on boundary

alternative 1).

Boundary Alternative 4

Comment: NOAA should select boundary alternative 4 as the preferred

alternative because:

(1) Many of the unique unspoiled ecological resources that might be

significantly impacted by oil are located in the physically complex

area north of Pt. Grenville including areas of submarine canyons,

productive fishing grounds, and coastal features that are critical

habitat;

(2) Sanctuary status in the southern portion of the study area

would conflict with state managed activities such as dredged material

disposal, while most of the shoreline in the north has little

commercial activity; and

(3) NOAA can enlarge the boundary in the future.

Response: NOAA agrees. One of the most valuable qualities of the

Olympic Peninsula is that it is undeveloped and relatively pristine.

NOAA recognizes that the southern portion of the boundary is much more

developed, especially with respect to the harbor maintenance activities

in Grays Harbor. Further, the rocky intertidal habitats in the north

are much more sensitive to pollution from oil and gas compared to the

sandy beach environments in the southern portion of the study area. In

the event of a spill of hazardous materials, experts predict that it

would take years for intertidal communities of rocky intertidal

environments to become reestablished, whereas it would take an order of

months for the sandy intertidal communities to recolonize. Lastly, NOAA

can expand Sanctuary boundary 4 in the future, in accordance with the

requirements of the Marine Protection, Research, and Sanctuaries Act

(MPRSA), the National Environmental Policy Act (NEPA), and the

Administrative Procedure Act (APA), if deemed necessary.

Comment: NOAA should not choose boundary alternative 4 because:

(1) It is not scientifically defensible for it fails to protect the

important and environmentally delicate estuaries along the southern

coast;

(2) It would render ineffective NOAA's resource monitoring and

sanctuary enforcement mandates; and

(3) It will be too restrictive for vessel traffic.

Response: The boundary of a marine sanctuary should approximate the

most identifiable boundaries of a marine ecosystem. The Site Evaluation

List (SEL), from which sites are selected for consideration as marine

sanctuaries, identified the coastal offshore islands as the core of the

proposed Olympic Coast National Marine Sanctuary (originally identified

as the Western Washington Outer Coast). With this focus, NOAA has

determined that the boundaries of the ecosystem are encompassed by

boundary alternative 4. NOAA recognizes that the coastal estuaries are

ecologically valuable and that many organisms that exist within, or

transit through boundary alternative 4, depend on the estuaries.

However, while the estuaries and outer coast are ecologically linked,

the productivity of the two environments is a function of very distinct

environmental processes.

NOAA believes that protection of the estuaries could be best

achieved through possible inclusion of these areas in programs

targeting estuarine management such as, the National Estuarine Research

Reserve System, the National Estuary Program, or the Coastal Zone

Management Program.

NOAA believes that the size of the sanctuary encompassed by

boundary alternative 4 is manageable with respect to research and

monitoring initiatives.

As discussed above, NOAA is working with the U.S. Coast Guard to

develop a proposal for an ATBA off the northern Olympic Peninsula. It

is designed to be as compatible with existing customary practices among

mariners as possible. NOAA is not promulgating vessel traffic

regulations with designation.

Boundary Alternative 5

Comment: NOAA should choose boundary alternative 5 because:

(1) Activities that are, or could occur, in the southern portion of

the study area can affect the resources in the north;

(2) The entire study area is ecologically connected;

(3) The management needs are greatest in the south;

(4) The sanctuary management regime would complement existing

management initiatives (Willapa Bay watershed planning processes,

Columbia and Snake River Salmon Recovery Planning, State National

Heritage Plans); and

(5) Expansion of the Sanctuary boundary in the future will be too

time-consuming.

Response: NOAA's preferred boundary alternative is based on an

ecologically identifiable boundary. The northern and southern portions

of the study area are distinct with respect to their coastal and

offshore ecology. NOAA can protect Sanctuary resources from outside

activities through the prohibition on discharges outside the Sanctuary

boundary that enter and injure Sanctuary resources. NOAA will be

involved in planning activities that could potentially threaten

Sanctuary resources outside its boundary. The boundary can be expanded

in the future if needed.

Comment: NOAA should not choose boundary alternative 5 because it

is not necessary to encompass the entire Washington coastline as a

marine sanctuary, and it would eliminate any future development of the

coastal areas.

Response: NOAA agrees. See response to previous comment.

Comment: A more detailed analysis of the impacts of sanctuary

designation must be undertaken before seriously considering boundary

alternative 5.

Response: NOAA has undertaken an extensive analysis of the uses and

ecology of the southern portion of the study area and believes that the

ecologically sensitive estuarine environments are adequately protected.

Alternative Boundary Suggestions

Comment: NOAA should establish a series of smaller site-specific

areas surrounding unique marine resources, such as ocean waters

immediately adjacent to already protected terrestrial ecosystems such

as wildlife refuges and the Olympic National Park. This alternative

would afford sanctuary status to marine resources while maintaining

provisions for compatible ocean uses.

Response: NOAA disagrees. Smaller site-specific areas would not

encompass an ecosystem for the reasons stated above. Further,

designation of the marine sanctuary would allow for the continuation of

pre-existing and compatible uses.

Comment: NOAA's analysis of the resources within the study area

identified the southern portion as highly important in terms of

wildlife and fishery values, particularly the areas in and surrounding

Willapa Bay. NOAA should consider modifying boundary alternative 4 by

adding a satellite site encompassing the estuarine environment and the

offshore waters of Willapa Bay.

Response: NOAA's analysis confirmed that the estuarine areas in the

southern portion of the study area are significant natural resources

and that many of the resources utilize the waters off the northern

coast as well. However, NOAA has determined that the estuarine

ecosystems are distinct from the higher energy marine environment of

the northern portion of the study area. In addition, the activities in,

and adjacent to Grays Harbor are managed pursuant to an existing

estuarine management plan promulgated pursuant to the Washington State

Shorelands Management Act. The residents living in the watersheds of

Willapa Bay are currently preparing an estuarine management plan.

Comment: NOAA should consider the creation of a north and south

Olympic Coast National Marine Sanctuary with separate but coordinated

management regimes.

Response: The Act requires the designation of one sanctuary on the

Western Washington Outer Coast with the offshore Islands and coastal

areas of the northern Olympic Peninsula as the core area of the

sanctuary. In carrying out this mandate, NOAA examined the seaward,

northerly, southerly, and easterly extent of the ecosystem that has as

its core the intertidal communities of the outer coast.

Comment: The boundary of the Sanctuary should be modified as

further cetacean information is available.

Response: NOAA can modify the boundary in the future, in accordance

with the requirements of the MPRSA, the NEPA and the APA, as more

information becomes available.

Modification of the Western Boundary

Comment: The outer boundary of the sanctuary should extend westward

to a point that minimizes restrictions and needless re-routing of

vessel traffic and harbor maintenance activities at the opening of

Grays Harbor. To accomplish this objective, the outer limit of the

sanctuary should be set at a distance between 2 and 10 miles from

shore.

Response: Sanctuary boundaries are not established based on vessel

traffic routes, particularly because routes are subject to change. NOAA

will work with existing regulatory agencies to minimize impacts. While

vessel traffic is in the scope of sanctuary regulations, NOAA is not

promulgating vessel traffic regulations at this time.

Comment: The outer boundary should be established at either the 100

or 500 fathom isobath.

Response: NOAA has established the boundary at the 100 fathom

isobath because it is generally recognized to be the seaward extent of

the continental shelf, the area where photosynthetic activity is

greatest.

Comment: Clarify the rationale for establishing the western

boundary of alternatives 4 and 5.

Response: See response to previous comment.

Modification of the Shoreline Boundary

Comment: The shoreline boundary should be established at the lower

low water mark to preclude interference with carefully crafted beach

management plans regulating beach traffic, razor clam harvests and

emergency aircraft landings.

Response: The shoreline boundary of the Sanctuary is located at the

higher high water line where adjacent to Federally-owned land

(including the Olympic National Park and the U.S. Fish and Wildlife

refuges) and the lower low line mark when adjacent to State-owned land.

Thus, the boundary does not interfere with beach management plans.

Razor clam harvests within the intertidal zone of the Sanctuary will be

managed by existing authorities such as the Washington State Department

of Natural Resources, the Quinault Indian Tribe, and the National Park

Service. Emergency aircraft landings are permissible in the Sanctuary.

Comment: The shoreline boundary should cut across the mouths of all

rivers, streams and estuaries because there are sufficient management

plans in place providing protection of inland environments such as the

Washington State Coastal Zone Management Program and the Grays Harbor

Estuary Management Plan.

Response: The shoreline boundary of the Sanctuary has been modified

to cut across the mouths of all rivers, streams and estuaries.

Comment: Clarify why the shoreward boundary distinguishes between

adjacency to tribal and non-tribal lands.

Response: The Tribes have jurisdiction to the mean lower low water

line. Both the Tribes and the State have requested that the Sanctuary

boundary not overlap with tribal and State lands. Therefore, the

coastal boundary has been modified so that it is at mean lower low

water when adjacent to tribal and State owned lands and at mean higher

high water when adjacent to Federally owned lands.

Comment: Existing National Park Service standards, regulations, and

policies must not be diminished as a result of dual designation as a

National Park and National Marine Sanctuary. The majority of the

intertidal areas of the Olympic National Park are Federally designated

Wilderness Area and must be managed accordingly.

Response: The Sanctuary boundary overlaps with the boundary of the

Olympic National Park. NOAA will not diminish the standards,

regulations and policies currently applying to the intertidal areas of

the Olympic National Park. The existing standards, regulations and

policies of the intertidal areas will remain. NOAA will enhance the

protection of these intertidal areas by working with the Coast Guard to

ensure a safer vessel traffic environment, and the upland users of the

watershed to monitor and minimize the impacts of non-point source

pollution. Additionally, NOAA will support research and resource

monitoring initiatives in the intertidal areas and may seek

compensation for damages if an accident were to occur that injures

Sanctuary resources.

Inclusion of the Strait of Juan de Fuca

Comment: The northeastern boundary of the sanctuary should extend

further into the Strait of Juan de Fuca to either: (1) The Lyre River;

(2) the Clallam County Marine Sanctuary at Salt Creek; (3) Low Point;

(4) Crescent Bay/Agate Beach; or (5) Pillar Point. Omission of the

Strait of Juan de Fuca from the Sanctuary excludes the head of the Juan

de Fuca Canyon from the boundary of the Sanctuary, and thus represents

a boundary not based upon an ecological rationale.

Response: NOAA has examined the resources of the Strait of Juan de

Fuca and the FEIS/MP has been revised accordingly. Sections III and IV

(Alternatives, and Environmental Consequences) examine the benefits and

consequences of various alternatives in the Strait of Juan de Fuca.

NOAA believes that the existence of a functional biotic community

characteristic of the marine environment extends into the Strait of

Juan de Fuca to Observatory Point. Eastward of Observatory Point, the

ecosystem is more characteristic of an estuarine environment.

Despite the ecological arguments that support inclusion of the

Strait of Juan de Fuca in the Sanctuary boundary, NOAA does not believe

that the public has had ample opportunity to analyze and comment on the

proposal to add the Strait. Since the Strait of Juan de Fuca lies

entirely in state waters, the Strait of Juan de Fuca cannot be included

without the approval of the Governor of Washington State. However, NOAA

will pursue expanding the boundary if supported by the State of

Washington.

Comment: The boundary of the Sanctuary should be contiguous with

that of the proposed Northwest Straits Sanctuary. A gap between these

two proposed sanctuaries would cause confusion for commercial shipping

and fishing interests and government managing agencies.

Response: At this time, the future and nature of the proposed

Northwest Straits National Marine Sanctuary is uncertain and cannot

serve as a deciding factor in the determination of the eastern boundary

of the Olympic Coast National Marine Sanctuary. The boundary of the

Olympic Coast National Marine Sanctuary must be determined based on

ecological and human use factors. NOAA can modify the boundary in the

future if it is deemed appropriate. NOAA will coordinate with existing

managing agencies to ensure that the Olympic Coast National Marine

Sanctuary and the proposed Northwest Straits National Marine Sanctuary

do not unduly disrupt the management of vessel traffic and fishing.

Comment: The boundary of the Sanctuary should not encompass the

waters of the Strait of Juan de Fuca because closely-monitored vessel

traffic lanes already exist.

Response: The MPRSA encourages multiple uses of the Sanctuary as

long as they are compatible with the resource protection goals of the

Sanctuary. Clearly, the Coordinated Vessel Traffic System in the Strait

of Juan de Fuca is in the best interest of the vessel traffic industry

and the environment. NOAA would not interfere with the vessel traffic

management regime in the Strait of Juan de Fuca if the Governor of the

State of Washington supported inclusion of the Strait of Juan de Fuca

in the Sanctuary boundary.

Northern Boundary

Comment: The northern boundary of the Sanctuary should be adjacent

to the international border and include vessel traffic lanes to

facilitate the establishment of a cooperative international sanctuary

and coordinated vessel traffic management regime.

Response: The northern boundary is adjacent to the international

boundary.

Inclusion of the Estuaries

Comment: NOAA recognized both the high resource values of the

estuaries and the high level of point source discharges. By including

the estuaries in the boundary NOAA would be in a position to work with

the Washington Department of Ecology (WDOE) to correct the sources of

pollution.

Response: NOAA has been working with the Washington Department of

Ecology to address pollution problems in the coastal estuaries. The

Grays Harbor Estuary Management Plan was supported by funding provided

pursuant to the Washington Shorelands Management Act. NOAA agrees that

the estuaries are extremely valuable environments with high levels of

point source discharges. However, NOAA believes that the estuaries are

ecologically distinct from the offshore waters of the Olympic

Peninsula, which is the core area of the Sanctuary. Inclusion in the

National Estuarine Research Reserve System (NERRS) is a more

appropriate management framework for NOAA involvement in estuarine

management.

Comment: The estuaries should be excluded from the Sanctuary

boundary because the Washington State Coastal Zone Management Program

and the Grays Harbor Management Plan offer sufficient protection to the

estuaries.

Response: NOAA agrees. The estuaries are excluded from the

preferred boundary of the Sanctuary.

Consideration of Other National Marine Sanctuaries and National

Estuarine Research Reserves (NERRS)

Comment: Some commenters believed that NOAA should designate the

estuaries as NERR's if they are not included in the boundary of the

Sanctuary because of their natural resource values. Other commenters

believed that NERR status is inadequate since it does not include the

marine environment. Clarification is needed on the specific elements of

the NERRS:

(1) The degree of protection that the NERRS would provide to Grays

Harbor and Willapa Bay;

(2) The process of designation;

(3) Timetable for designation;

(4) Assurances that designation would occur; and

(5) The degree of protection to the estuaries that would be

provided in comparison to sanctuary status.

Response: The terms of designation as a NERR are determined between

the State and NOAA. The process begins with the nomination of an

estuary, or portion thereof, to NOAA for inclusion in the NERRS by the

Governor of the State. The State holds scoping meetings in the region

nominated for inclusion to solicit public input. The State then

prepares a draft environmental impact statement and management plan

(DEIS/MP) where boundary, management, and regulatory alternatives are

assessed and a preferred alternative is decided upon. The DEIS/MP must

demonstrate that the key core land and water areas are adequately

protected by the state. Once the DEIS/MP is completed, public hearings

are held in the region. After a comment period of one month, the State

must produce a Final Environmental Impact Statement/Management Plan

(FEIS/MP) incorporating the public comments. Once NOAA approves the

FEIS/MP the Reserve is officially designated. The entire process

requires approximately three years. Designation is contingent upon

available funding.

Comment: NOAA should encourage sanctuary designations in Northern

Puget Sound, Hood Canal, Southern Oregon and Northern California.

Response: NOAA is working with the State of Washington to study the

feasibility of a sanctuary in Northern Puget Sound. New candidates for

sanctuary status are selected from NOAA's SEL. Sites in southern Oregon

and Northern California are presently on the SEL.

Harbor Exclusion/Inclusion

Comment: How will sanctuary designation influence the disposal of

dredge material from harbor maintenance and development activities that

occur in the Port of La Push, the mouth of the Quilleute River, and

Neah Bay?

Response: No dredge spoil disposal will be permitted within the

Sanctuary, except when used in connection with beach nourishment

projects related to harbor maintenance activities. Harbors are excluded

from the Sanctuary boundary. Therefore, maintenance and development

activities can occur, but disposal of dredge material must be either on

land or outside the boundary of the Sanctuary.

Growth Management

Comment: The Sanctuary should help to limit population growth.

Response: The sanctuary program has no control over population

growth adjacent to the Sanctuary boundary. Rather, the program exists

to ensure that human uses resulting from growth do not have a negative

impact on Sanctuary resources.

Comment: Private land owners should not lose development rights to

their land, nor should they have the value of their land significantly

decreased by regulation without due compensation for that loss.

Response: NOAA is issuing no regulations that will diminish the

development rights of private property owners.

Opposition to Sanctuary Designation

Comment: The marine sanctuary should not be designated because: (1)

It would shut down the fishing industry; (2) existing legislation and

management regimes offer adequate protection; (3) potential industrial

interests would be stifled because the sanctuary would over-regulate

the local economy and its growth; (4) the ecological/aesthetic values

of Washington's coastline are not permanently threatened; (5) local

airports in Aberdeen and Ocean Shores would close due to insurance

problems; and (6) the Olympic National Park has too much control over

the Olympic Peninsula already.

Response: The Sanctuary will not shut down the fishing industry.

Fishing is not within the scope of Sanctuary regulation; the regulation

of fishing would remain with existing management regimes. Further, the

Sanctuary will ensure greater protection from risks due to oil, gas and

mineral development and vessel traffic accidents.

NOAA disagrees that existing legislation offers adequate protection

of the offshore resources. The threats from such things as vessel

traffic, oil and gas development, sand and gravel mining and Navy

practice bombing of Sea Lion Rock have not been addressed through a

comprehensive management regime that recognizes the value and fragility

of the marine ecosystem off the Olympic Peninsula. NOAA does not

believe that the Sanctuary will over-regulate the local economy since

the main source of income in the region is from tourism, fishing and

timber production-none of which will be negatively affected by the

Sanctuary. Tourism and fishing will likely benefit from Sanctuary

status due to the increased protection of the marine environment.

Issue: Alteration of/or Construction on the Seabed

Comment: The regulation pertaining to alteration or construction of

the seabed may be interpreted as prohibiting such activities as

geologic research, the placement of current meters, sediment traps and

similar research equipment, all of which might be necessary if

environmental studies were to be conducted in the Mineral Management

Service (MMS) Washington-Oregon planning area. To clarify the intent of

this prohibition, ``Government sponsored environmental studies'' should

be added in the second sentence of this section as one of the

activities for which this prohibition does not apply.

Response: NOAA supports research within the Sanctuary. However, the

prohibition on alteration of, or construction on the seabed applies to

all research activities, including those conducted by governmental

agencies. All research activities conducted within the Sanctuary that

violate a Sanctuary regulation must be undertaken pursuant to a

Sanctuary research permit to ensure that the impacts from the research

are minimal and temporary.

Comment: The prohibition on the alteration of, or construction on

the seabed should not interfere with current or future harbor

maintenance or fishing activities including: (1) Jetty and groin

construction; (2) permitted dredging of channels and harbors; (3) the

use of dredge spoils for underwater berm construction; (4) construction

and improvement of boat launching and marine facilities adjacent to

reservations; (5) the retrieval of fishing gear (including crab pots)

and sunken vessels; (6) bottom trawling and scallop dredging; and (7)

tribal fin and shellfish operations. NOAA needs to clarify the

exemption of activities incidental to routine fishing and vessel

operations. The exemptions for harbor maintenance and fishing

activities should read: ``attempting to alter the seabed for any

purpose other than anchoring vessels, normal fishing operations to

include commercial bottom trawling and crab pot recovery, and routine

harbor maintenance.''

Response: Ports and harbors are not included within the boundary of

the Sanctuary. The boundary of the Sanctuary adjacent to the Port of La

Push is congruent with the Colreg lines at the mouth of the harbors.

Further, there is the following exception to the alteration-of-the-

seabed regulation: ``Harbor maintenance in the areas necessarily

associated with Federal Projects in existence on the effective date of

Sanctuary designation, including dredging of entrance channels and

repair, replacement or rehabilitation of breakwaters and jetties.'' The

noted activities incidental to fishing have been exempted from the

Sanctuary regulations.

Comment: NOAA should prohibit all dredging and removal of sand and

gravel within the Sanctuary boundary.

Response: NOAA has prohibited all dredging and removal of sand and

gravel within the Sanctuary boundary except as an incidental result of

harbor maintenance activities. These activities threaten the integrity

of the benthic community and the food source of many fish, marine

mammals and seabirds.

Comment: NOAA should not subject the exploration and development of

offshore mineral activities to the same restrictions proposed for the

exploration and development of Outer Continental Shelf (OCS) oil and

gas.

Response: All of these activities injure the benthic communities in

the Sanctuary and NOAA does not believe that there is cause for

exceptions.

Comment: Clarify NOAA's policy on establishing artificial reefs

within the Sanctuary.

Response: There are no artificial reefs in the Sanctuary as of the

date of designation. The creation of new artificial reefs would be

prohibited pursuant to the prohibition on alteration of, or

construction on, the seabed.

Comment: NOAA should prohibit the construction of pipelines on the

sea floor.

Response: The regulation prohibiting the alteration of, or

construction on, the seabed would prohibit the construction of

pipelines on the sea floor.

Issue: Cultural and Historic Resources

Comment: NOAA should prohibit moving, injuring, or possessing

historic resources within the Sanctuary.

Response: NOAA agrees that it is necessary to protect and manage

historical and cultural resources within the Sanctuary boundary. NOAA

has included a prohibition on moving, removing, possessing, injuring,

or attempting to move, remove, or injure these resources, except as

resulting incidentally from traditional fishing operations. If NOAA

determines that fishing activities are resulting in injury to Sanctuary

historic and cultural resources, NOAA may amend the Sanctuary

regulations to abolish the exemption for these activities.

Comment: The proposed regulations dealing with cultural resources

fail to preserve the tribes' ability to control access to, and removal

of, their cultural heritage. Therefore, NOAA should add a new

Sec. 925.5(a)(8) prohibiting: ``removal or attempted removal of any

Indian cultural resource or artifact, or entry onto a significant

cultural site designated by a tribal governing body with the

concurrence of the Director, except with the express written consent of

the governing body of the tribe or tribes to which such resource,

artifact, or cultural site pertains.'' NOAA should pursue a cooperative

agreement with the tribes to coordinate management of cultural

artifacts of tribal significance.

Response: The MPRSA provides NOAA with the authority to control

access to cultural artifacts within the Sanctuary thereby helping to

ensure their preservation. Accordingly, anyone proposing to remove a

cultural or historic resource must apply for and obtain a sanctuary

permit from NOAA. NOAA acknowledges the interest of the coastal tribes

in preserving their cultural heritage and, in particular, those

cultural artifacts of tribal significance found within the Sanctuary.

NOAA considers its objective of preserving the historical and cultural

resources of the Sanctuary to be compatible with the coastal tribes'

desire to preserve their cultural heritage. Therefore, NOAA has

modified Sec. 925.9(j) to state: ``The Director or designee shall

obtain the express written consent of the governing body of an Indian

tribe prior to issuing a permit, if the proposed activity involves or

affects resources of cultural or historical significance to the

tribe.'' NOAA has also added Sec. 925.9(k) which states: ``removal, or

attempted removal of any Indian cultural resource or artifact may only

occur with the express written consent of the governing body of the

tribe or tribes to which such resource or artifact pertains, and

certification by the Director that such activities occur in a manner

that minimizes damage to the biological and archeological resources.

Prior to permitting entry into a significant cultural site designated

by a tribal governing body, the Director shall acquire the express

written consent of the governing body of the tribe or tribes to which

such cultural site pertains.'' NOAA will enter into a cooperative

agreement with the tribes and the State of Washington that clarifies

the process by which permits will be granted to conduct research or

salvage operations on historical and cultural resources of tribal

significance.

Comment: Current management of cultural resources is agreed upon

between the Bureau of Indian Affairs (BIA) and the tribes. The BIA

supports the tribes in the management of their cultural resources.

Response: See response to previous comment.

Comment: The regulation as proposed in the DEIS/MP is duplicative

of State law. There already exists state and Federal antiquities acts

to protect coastal archeological and historical sites that occur on or

near the median high tide boundary. The State archeologist already

coordinates archeological matters.

Response: The MPRSA is not duplicative of existing laws protecting

historical and cultural resources. The MPRSA is more comprehensive in

that it provides enforcement authority, including civil penalties, for

the destruction or injury of historical and cultural resources.

The Abandoned Shipwreck Act of 1987 gives states the title to

certain abandoned shipwrecks in state waters. Under the MPRSA, NOAA has

trustee responsibilities for abandoned shipwrecks and other historical

and cultural resources within national marine sanctuaries, including

those located in state waters, for the purpose of protecting them. NOAA

will coordinate with State agencies to ensure that historical and

cultural resources within the Sanctuary are protected, and that the

policies affecting historical and cultural resources in State waters

are consonant with the policies in the Federal waters of the Sanctuary.

Issue: Discharges

Ocean Dumping

Comment: NOAA should not prohibit the use of dredged material

disposal sites off Grays Harbor, Willapa Bay, the Columbia River, or on

the north jetty and breakwater of the Port of La Push.

Response: The Sanctuary boundary does not extend south of Copalis

Beach and excludes ports and harbors. Therefore, the maintenance

activities at La Push and the use of the dredge disposal sites south of

the boundary is not prohibited. In addition, the use of dredged spoil

within the Sanctuary for beach nourishment in connection with harbor

maintenance activities is exempt from the regulatory prohibition.

Comment: No ocean dumping should be allowed in proximity to the

major submarine canyons.

Response: The regulations prohibit ocean dumping within the

Sanctuary, and outside the Sanctuary if the material enters and injures

Sanctuary resources or qualities.

Point Source Discharges

Comment: Prohibit discharges of toxics, plastic, and municipal

garbage and sewage into the marine environment.

Response: The dumping of municipal garbage, toxics and plastics is

prohibited within the Sanctuary by Sanctuary regulations and by

regulations promulgated pursuant to the Act to Prevent Pollution from

Ships (33 U.S.C. 1901 et seq.) and the Marine Plastic Pollution

Research and Control Act of 1987, which implements Annex V of MARPOL

73/78 in the U.S. Point source discharges are allowed provided such

discharge is certified by NOAA in accordance with Sec. 925.10 or

approved by NOAA in accordance with Sec. 925.11. After expiration of

current permits, discharges from municipal treatment plants will be

subject to the review process of Sec. 925.11. At a minimum, secondary

treatment will be required.

Comment: Current regulations are adequate. NOAA has not proven that

the proposed regulations will enhance the recreational or aesthetic

appeal, and water quality.

Response: Current regulations do not protect the area from the

cumulative impacts of various types of discharges, including: (1) Some

ocean dumping; (2) sewage receiving only primary treatment; and (3)

non-point source discharges. NOAA's ocean disposal regulation offers

protection to the offshore environment that does not otherwise exist.

NOAA will work with existing tribal, State and Federal authorities to

ensure that the quality of the water and Sanctuary resources are

maintained.

Comment: Clarify how discharges from drilling and production rigs

may be addressed if oil and gas leasing were to occur in the future.

Response: The regulations prohibit oil and gas exploration,

development, and production activities within the Sanctuary. NOAA will

work with the Environmental Protection Agency (EPA) to ensure that best

available technology is implemented on any drilling rigs located

outside of the Sanctuary to ensure that no discharges enter and injure

Sanctuary resources and qualities.

Comment: Depositing or discharging from any location within the

Sanctuary or from beyond the Sanctuary should be prohibited.

Response: The mandate of the National Marine Sanctuary Program is

to facilitate multiple uses that are compatible with resource

protection. Depositing or discharging most materials within the

boundary of the Sanctuary, or from beyond the boundary of the Sanctuary

if such material subsequently enters the Sanctuary and injures

Sanctuary resources or qualities is prohibited. NOAA will work with

EPA, the tribes and the State of Washington to maintain water quality.

NOAA may require special terms and conditions, including (but not

limited to) improved effluent quality, on EPA permits to ensure

Sanctuary resources and qualities are protected.

Non-Point Source Discharges

Comment: NOAA should not require at a minimum secondary treatment

and sometimes tertiary or more for non-point source pollution. It is

virtually impossible to subject runoff to these levels of treatment.

Response: NOAA does not require such treatment for non-point source

pollution. NOAA will monitor non-point source pollution and work with

those living and working in the coastal watersheds to minimize runoff

into the Sanctuary.

Comment: It should be stated that there is no intent to regulate

forest practices by Sanctuary administrators. There is no research or

evidence which would justify the statement made in the proposed DEIS

that the ``greatest source of non-point discharge is the forest.'' This

statement needs clarification and tree farmers must be assured that

they can continue to grow and harvest trees pursuant to Washington's

Forest Practices Act, one of the most stringent in the country.

Response: NOAA's Strategic Assessment Branch has analyzed existing

watershed data from the National Coastal Pollutant Discharge Inventory

to determine sources of runoff. Summaries of pollution discharges for

total volumes of nitrogen, lead, and all suspended solids combined

indicate that with the exception of suspended solids discharged by

paper mills, the greatest source of sediments discharged into sanctuary

waters is from natural forest runoff.

Despite this evidence, NOAA will not be directly regulating upland

uses. However, NOAA will coordinate with the upland user groups, and

managing agencies to minimize non-point source impacts on Sanctuary

resources.

Comment: The suggestion that excessive erosion from clear cutting

practices is the source of most non-point source pollution from forests

supports the need for further study of this common practice and the

issuance of more stringent controls due to the steep and unstable

slopes and amount of rainfall.

Response: NOAA agrees and will conduct monitoring and research

initiatives in coordination with those living and working in the

watersheds to minimize the impacts from timbering activities.

Discharges Outside the Sanctuary

Comment: Clarify to what extent the ``sphere of influence'' of the

discharge regulation extends, to what degree it may affect coastal

communities including the tribes, and who determines if injury to a

Sanctuary resource has occurred. Would a community such as Ocean Shores

or an Indian tribe face increased water quality regulations or

enforcement? Further, does the discharge prohibition apply to

particulates that are discharged into the air from pulp mills and

subsequently enter the Sanctuary and harm Sanctuary resources and

qualities.

NOAA should not impose additional restrictions, beyond the existing

requirements of the Federal Water Pollution Control Act (FWPA), on the

discharge of effluent and dredge spoils into marine waters. There is no

evidence that additional restrictions on these activities are required

to protect water quality in the proposed sanctuary.

Response: The MPRSA protects Sanctuary resources and qualities

(including water quality) from the impacts of discharges from within

and outside the boundary of a Sanctuary whether airborne or waterborne.

NOAA is responsible for determining injury to Sanctuary resources.

Discharges pursuant to existing permits may be continued subject to the

certification requirements of Sec. 925.10. New permits are subject to

the review process of Sec. 925.11. At a minimum, secondary treatment

will be required for any treatment plants discharging directly into the

Sanctuary. With respect to airborne or waterborne discharges outside

the Sanctuary, NOAA may condition such permits only if it is

established that the discharges are entering the Sanctuary and injuring

Sanctuary resources or qualities. NOAA will work closely with all to

ensure that none is unduly burdened by permitting requirements related

to discharges. NOAA will coordinate with the State's Air Quality Board

and Department of Ecology to monitor air and water quality over and in

the Sanctuary.

Application of Discharge Regulations to Vessel Traffic

Comment: The application of this regulation should prohibit organic

and inorganic discharges from fishing vessels and submarines (including

bilge), aircraft. The prohibition should apply to all naval operations.

Response: The Sanctuary regulations specify the fishing and vessel

related activities exempted from the discharge prohibition

(Sec. 925.5(a)(2)(i)-(iv)). Discharges and deposits from vessels are

prohibited except for specific discharges intended to provide for

traditional fishing activities, such as fish wastes resulting from

traditional fishing operations in the Sanctuary, and for allowed vessel

operations in the Sanctuary, namely biodegradable effluent incidental

to vessel use and generated by approved marine sanitation devices,

water generated by routine vessel operations, and engine exhaust. Such

discharges are determined to be of minimal threat to the Sanctuary and

are important for the safe and effective functioning of fishing and

other vessels. Other discharges from vessel operations are prohibited.

If in the future NOAA determines that increased protection for

Sanctuary resources and qualities from these exempted activities is

warranted, the Sanctuary regulations could be revised.

Comment: Clarify acceptable and unacceptable discharges from

fishing vessels.

Response: See response to previous comment.

Economic Impacts of Discharge Regulations

Comment: Banning the use of approved dredge disposal sites would

impose severe economic impacts on marine navigation and commerce, and

ultimately to the coastal communities.

Response: The boundary of the Sanctuary does not encompass the

approved dredge disposal sites off of Grays Harbor, Willapa Bay, and

the Columbia River. However, no new dredge disposal sites may be

located within the Sanctuary boundary.

Comment: NOAA must examine the economic impacts of the discharge

regulations on existing industries. There are currently 72 identified

dischargers in the study area. It is unclear if the proposed Sanctuary

would impact the continued operation of the pulp mill's NPDES permitted

discharge near Grays Harbor.

Response: The Sanctuary's boundary does not extend south of Copalis

Beach. Therefore, the only discharge regulation that would apply to

dischargers in Grays Harbor would be the prohibition on discharges from

outside the boundary that subsequently enter and injure Sanctuary

resources or qualities. NOAA will need to establish that effluents from

pulp mills are injuring Sanctuary resources or qualities before it

would impose terms and conditions on the pulp mill's NPDES permit. If

this situation were to occur, NOAA would work with the discharger, the

State of Washington, and EPA to minimize the economic impacts of

reducing the impacts.

Issue: Oil and Gas Development

Comment: NOAA's failure to offer as an alternative an outright, no

conditions ban on hydrocarbon development within the Sanctuary is

contrary to NEPA regulations, 40 CFR 1502.14 which states that the

alternatives section is the heart of the environmental impact

statement. NOAA should permanently ban oil and gas exploration,

development, and production activities.

Response: Section 2207 of the Oceans Act of 1992 prohibits oil and

gas exploration, development and production within the Sanctuary. The

Sanctuary regulations repeat this prohibition.

Comment: NOAA should designate a buffer zone based on ocean

currents and local seabed geography to prevent damage from external

mineral operations.

Response: NOAA believes that the Sanctuary is large enough to

buffer the sensitive canyon and coastal ecosystems from negative

impacts of mineral development. Further, NOAA's authority to regulate

discharges from outside the Sanctuary boundary that subsequently enter

and injure Sanctuary resources or qualities provides additional

protection over mineral activities.

Comment: NOAA should commit in the FEIS/MP and Record of Decision

to the preparation of an EIS before lifting the prohibition.

Response: As previously discussed, the Oceans Act of 1992 prohibits

oil and gas explorations, development and production within the

Sanctuary. This prohibition may only be lifted by an Act of Congress.

Comment: The oil companies should be excluded from voicing an

opinion regarding the Sanctuary because this privilege should be

extended only to those who have spent time enjoying the State of

Washington coastline.

Response: The Sanctuary program does not and cannot discriminate

against any individual, agency, or interest group. All individuals have

the right to voice an opinion.

Comment: Has NOAA come across any proposal for offshore wind

generated power?

Response: NOAA is not aware of any proposal for offshore wind

generated power.

Comment: The President's decision to postpone OCS activities off

the coasts of Washington and Oregon until after the year 2,000 should

expire at that time unless affirmatively extended.

Response: Section 2207 of the Oceans Act of 1992 indefinitely bans

oil and gas exploration, development and production within the boundary

of the Sanctuary. These prohibitions could only be lifted by an Act of

Congress.

Contingency Plans

Comment: The Sanctuary should establish a contingency plan in

coordination with existing state and Federal contingency plans. Efforts

should be made to coordinate with the State of Washington Departments

of Wildlife, Fisheries, Ecology, and Natural Resources and pursue data

sharing opportunities.

Response: The FEIS/MP identifies existing oil spill contingency

plans and efforts in the State of Washington to cover the Strait of

Juan de Fuca and Outer Coast. NOAA will coordinate closely with the

existing agencies involved in contingency and emergency response

planning, particularly the U.S. and Canadian Coast Guard and the State

of Washington Office of Marine Safety (OMS). However, NOAA agrees that

the Sanctuary requires its own contingency plan to ensure that

resources are protected during events that threaten the environment. A

prototype Sanctuary Contingency Plan is being tested at the Channel

Islands National Marine Sanctuary. Once implementation experience has

been gained, the plan will be adapted to other sites, including the

Olympic Coast National Marine Sanctuary. To implement successfully an

organized emergency response, NOAA will incorporate state and Federal

legislation as well as local efforts into the Sanctuary Contingency

Plan.

Comment: NOAA needs to provide for better oil spill response

planning.

Response: NOAA is coordinating with the regional response

committees of the OMS to ensure that the equipment is available to

address an emergency that would threaten Sanctuary resources.

Comment: An Oil Spill Response Center should be sited in close

proximity to the Sanctuary to address small spills north of Grays

Harbor where there is currently a lack of oil spill response

capability.

Response: NOAA is promoting this idea in its participation on the

regional response subcommittee whose jurisdiction is the Strait of Juan

de Fuca and the Outer Coast. However, priority will be placed on the

stationing of tugs and barges dedicated to emergency response.

Comment: The tribes should be properly funded to handle resource

damage assessment as well as other activities where an oil spill could

impact their subsistence and ceremonial harvest and cultural values.

Response: The reservations are not within the Sanctuary boundary.

Therefore, the Sanctuary cannot dedicate funds to the Tribes for the

purpose of damage assessment pursuant to a spill of hazardous

materials.

Comment: NOAA should request that the oil industry's Marine Spill

Response Corporation station a tractor/tug response vessel at Neah Bay.

Response: NOAA has made the recommendation to the subcommittee on

emergency response for the Strait of Juan de Fuca and the Outer Coast.

NOAA is actively participating in formulating the recommendation to the

State, and will coordinate with the Makah Tribe in their planning

initiative to expand their marina to plan to accommodate a tug or

emergency response vessel that is of appropriate size to service the

Outer Coast and the Strait of Juan de Fuca.

Comment: NOAA should ensure that drills are conducted for the Clean

Sound Cooperative with outside evaluation.

Response: NOAA intends to hire an operations manager immediately

after designation to address issues related to vessel traffic and

contingency planning. One of the priorities of this position will be to

encourage the Coast Guard to focus on the Sanctuary during its

emergency response drills.

Comment: NOAA should propose the examination of extending unlimited

liability for spills to the shipping companies and the original firms

providing the original source materials involved in the polluting

activities.

Response: The MPRSA only provides NOAA with the authority to

collect $100,000 per day for each violation pursuant to 16 U.S.C.

1437(c)(1), and damages to Sanctuary natural resources pursuant to 16

U.S.C. 1443.

Issue: Sealion Rock

Comment: NOAA should prohibit, or at least condition, the Navy's

practice bombing activities over Sealion Rock due to the impact on

seabirds, depositing of metal objects in the Sanctuary, and because the

military environment does not require such a sensitive area to be used

for such purposes. At the very least, NOAA should prohibit the practice

bombing during the breeding season. Section 7 consultations with the

Department of Commerce and the Department of the Interior should not be

construed as sufficient mitigation because these processes do not

address impacts to non-endangered species.

Response: NOAA agrees that the Navy practice bombing of Sealion

Rock is inconsistent with the goals of the Sanctuary program. Because

the permit under which the Navy conducted its activities over Sealion

Rock was rescinded by the Secretary of the Interior in August, 1993,

NOAA may prohibit outright all bombing activities within the Sanctuary

and has determined to do so. The regulation adopted by NOAA prohibits

all practice bombing and provides that no exemption from the

prohibition will be granted.

Comment: NOAA does not have the authority to prohibit or condition

the Navy's activities.

Response: Because the Navy's authorization from the Secretary of

Interior was rescinded, NOAA now has the authority to not only

condition but also prohibit the Navy's practice bombing activities.

Comment: NOAA should place the Navy's bombing activities within the

scope of regulation to allow future regulation if necessary. To not

list military activities is in conflict with the primary goal of

resource protection.

Response: NOAA has addressed Navy activities in Sec. 925.5(d) of

the regulations.

Comment: NOAA should investigate the history of the Navy's

activities over Sealion Rock to determine if a grandfather clause is

warranted.

Response: The history of the Navy's activities and the permit that

authorized its activities has been outlined in the FEIS/MP. The Navy's

authority to conduct practice bombing activities has been rescinded and

thus consideration of a grandfather clause is irrelevant.

Comment: Clarify how Navy bombing of Sealion Rock at 200 feet is

less disruptive than commercial overflights.

Response: NOAA does not assert that the Navy's low flying

activities are less disruptive than commercial or non-commercial

overflights. NOAA's differing regulations in the DEIS/MP applying to

Navy and non-military overflights resulted from limitations placed on

NOAA by the MPRSA with respect to terminating pre-existing leases and

permits.

Issue: Protection of Treaty Rights

Comment: NOAA's regulations do not formally recognize the Federal

Government's trust responsibility to the coastal Tribes. The

regulations contain no provision which formally requires the Director

to consider and protect tribal interests when ruling on permit

applications to conduct development activities within the Sanctuary. To

address this issue, the following modifications to the Sec. 925.8

should be made:

The Director * * * may issue a permit * * * to conduct an

activity otherwise prohibited by Sec. 925.5(a)(2)-(7), if the

Director finds that the activity will: further research related to

Sanctuary resources: * * * or promote the welfare of any Indian

Tribe adjacent to the Sanctuary. In deciding whether to issue a

permit, the Director shall consider such factors as * * * the

impacts of the activity on adjacent Indian Tribes. Where the

issuance or denial of a permit is requested by the governing body of

an Indian Tribe, the Director shall consider and protect the

interests of the Tribe to the fullest extent practicable in keeping

with the purposes of the Sanctuary and his or her fiduciary duties

to the Tribe * * *

Response: NOAA agrees that the designation of the Olympic Coast

National Marine Sanctuary is subject to the Federal government's

general fiduciary responsibility to the coastal tribes. Accordingly,

NOAA has modified Sec. 925.9(d) of the regulations to incorporate the

recommended language.

Comment: NOAA's regulation prohibiting the taking of marine mammals

and seabirds conflicts with treaty rights to fish and hunt marine

mammals in tribal usual and accustomed fishing grounds.

Response: NOAA recognizes that, given the standard for abrogating

treaty rights enunciated by the Supreme Court in United States v. Dion,

476 U.S. 734 (1985), the provisions of the MPRSA do not abrogate the

coastal Tribes' treaty fishing and hunting rights. However, it is

unclear whether Congress intended the MMPA and the Endangered Species

Act (ESA) to abrogate these rights. Recently, the Makah Tribe has

pursued clarification regarding the applicability of the Marine Mammal

Protection Act (MMPA) and ESA to its treaty rights to hunt whales and

seals. The issue is currently being examined by the tribes and the

National Marine Fisheries Service (NMFS). Given the concerns raised by

the coastal tribes, Sec. 925.5(a)(6) has been revised to read as

follows:

Taking any marine mammal, sea turtle, or seabird in or above the

Sanctuary, except as authorized by the National Marine Fisheries

Service or the United States Fish and Wildlife Service under the

authority of the Marine Mammal Protection Act, as amended (MMPA), 16

U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA),

16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as

amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to any treaty

with an Indian Tribe to which the United States is a party, provided

that the treaty right is exercised in accordance with the MMPA, ESA,

and MBTA, to the extent that they apply.

In addition, Sec. 925.5(a)(8) has been modified similarly. The

revised language recognizes the coastal Tribe's treaty right to hunt

whales and seals. However, the regulation also requires that the right

be exercised in accordance with the provisions of the MMPA, ESA, and

MBTA. If the MMPA, ESA or MBTA is determined to abrogate or otherwise

restrict the Tribe's exercise of its right to hunt whales and seals,

then that determination shall apply to the Tribe's exercise of those

rights within the boundary of the Sanctuary.

Comment: The regulations fail to preserve tribal control of their

cultural heritage. NOAA should amend Sec. 925.5(a)(8) to read as

follows:

Removal or attempted removal of any Indian cultural resource or

artifact, or entry onto a significant cultural site designated by a

Tribal governing body with the concurrence of the Director, except

with the express written consent of the governing body of the Tribe

or Tribes to which such resource, artifact, or cultural site

pertains.

Response: The MPRSA provides NOAA with the authority to control

access to cultural or historical artifacts within the Sanctuary thereby

helping to ensure their preservation. Accordingly, anyone proposing to

remove a cultural or historical resource must apply for and obtain a

Sanctuary permit from NOAA. NOAA also acknowledges the coastal Tribes'

desire to preserve their cultural heritage and, in particular, those

cultural artifacts of tribal significance found within the Sanctuary.

NOAA considers its objective of preserving the historical and cultural

resources of the Sanctuary to be compatible with the coastal Tribes'

desire to preserve their cultural heritage. Accordingly, Sec. 925.9(j)

has been modified and Sec. 925.9(k) has been added to address the

coastal tribe's concerns.

Comment: The regulation prohibiting overflights under 1,000 ft.

except for valid law enforcement purposes conflicts with the treaty

secured rights to access certain reservation lands such as Tatoosh

Island and Ozette, which are only accessible by helicopter in the

winter months, and to conduct aerial timber cruises and engage in

helicopter logging on portions of the reservation abutting the

Sanctuary. Therefore the following amendment to Sec. 925.5(7) is

proposed:

Flying motorized aircraft at less than 1,000 feet above the

Sanctuary within one nautical mile of the coastal boundary of the

Sanctuary and the Flattery Rocks, Quilleute Needles, and Copalis

National Wildlife Refuges, except for valid law enforcement purposes

or where authorized by a governing body of an Indian Tribe to

provide access to reservation lands.

Response: NOAA acknowledges the Tribes' concerns and does not

intend to interfere with tribal rights to access reservation lands.

Also, for the reasons discussed below, the minimum altitude has been

changed to 2000 ft. In order not to interfere with Tribal access to

reservation lands, the prohibition on flying has been changed to read:

Flying motorized aircraft at less than 2,000 feet above the

Sanctuary within one nautical mile of the Flattery Rocks, Quillayute

Needles, or Copalis National Wildlife Refuge, and within one

nautical mile seaward from the coastal boundary of the Sanctuary,

except as necessary for valid law enforcement purposes, for

activities related to tribal timber operations conducted on

reservation lands, or to transport persons or supplies to or from

reservation lands as authorized by a governing body of an Indian

Tribe.

Comment: NOAA should apply the management plan equally to tribal

and non-tribal governmental entities within the adopted boundary

equally.

Response: NOAA is legally bound to recognize treaty secured rights

and has no intention to interfere with these rights. As such, there

will be circumstances in which Sanctuary regulations will apply to

tribal and non-tribal members differently.

Issue: Vessel Traffic

Comment: Route tankers and barges as far away from near-shore reefs

and islands as possible. Clarify what types of vessels can transit

close to shore.

Response: There exists a Cooperative Vessel Traffic Management

System (CVTMS) established and jointly managed by the United States and

Canada. The CVTMS is a mandatory regime and consists of all navigable

waters of the Strait of Juan de Fuca and its offshore approaches,

southern Georgia Strait, the Gulf and San Juan Archipelagos, Rosario

Strait, Boundary Pass, Haro Strait, and Puget Sound, bounded on the

west by longitude 147 deg.W. latitude 48 deg.N., and on the northeast

by a line along 49 deg.N. from Vancouver Island to Semiamoo Bay.

The rules of the CVTMS are intended to enhance safe and expeditious

vessel traffic movement, to prevent groundings and collisions, and to

minimize the risk of property damage and pollution to the marine

environment. The rules apply to:

a. Each vessel of 30 meters or more in length; and

b. Each vessel that is engaged in towing alongside or astern, or in

pushing ahead, one or more objects, other than fishing gear, where:

(1) The combined length of the vessel towing, the towing apparatus,

and the vessel or object towed is 45 meters or more; or

(2) The vessel or object towed is 20 meters or more in overall

length.

Both the Canadian and the United States Coast Guards are studying

methods to improve the CVTMS in the area. Items being studied include

replacement of outdated equipment, elimination of gaps in coverage, and

increasing operator training and assignment length.

The Oil Pollution Act of 1990 (OPA 90) requires the U.S. Coast

Guard to conduct a national Tanker Free Zone Study. This study is

nearing completion and will recommend regulations requiring tank

vessels to remain offshore during coastal transits.

Further, NOAA has recommended to the U.S. Coast Guard that an

International Maritime Organization (IMO) approved ATBA be established

within the proposed Sanctuary boundary. This would request that vessels

transporting hazardous materials remain at least 25 nautical miles

offshore while in the vicinity of Sanctuary waters or until making

their approach to the Strait of Juan de Fuca using the established

CVTMS traffic separation scheme. Although ATBA's are not compulsory for

foreign flag vessels, a maritime state may make such an area compulsory

for domestic vessels transiting the waters under its jurisdiction.

Comment: Clarify ``commercial vessel'' and distinguish between

various sizes, uses, and types of vessels.

Response: ``Commercial vessel'' means any vessel operating in

return for payment or other type of compensation. Clarification between

sizes, uses, and types of vessels would require more space than is

available in this document. Rather than attempt to hold to a general

definition of ``commercial vessel'', reference will be made to specific

types of vessels, i.e., tank vessels, bulk carriers, fishing vessels,

pleasure craft, etc., wherever required.

Comment: The Sanctuary boundary should be published on navigational

charts.

Response: NOAA agrees and will submit the Sanctuary boundary to the

Nautical Charting Division of the National Ocean Service. The boundary

will be delineated on the next update of the appropriate navigational

chart.

Comment: Spill containment and cleanup measures should be part of

appropriate mitigation requirements for vessels operating within the

Sanctuary.

Response: OPA 90 mandates that tank vessel contingency plans be

prepared for a worst-case discharge, and that vessel plans be reviewed

and approved by the U.S. Coast Guard. OPA 90 also stipulates that each

responsible party for a vessel from which oil is discharged, or which

poses the substantial threat of a discharge of oil into or upon the

navigable waters or adjoining shorelines or the exclusive economic

zone, is liable for the removal costs and damages resulting from such

an incident.

Further, Washington State law (title 88 section 46 Revised Code of

Washington) requires the owner or operator of a tank vessel to prepare

and submit an oil spill prevention plan prior to the vessel's entry

into a Washington port. The law also requires that each tank vessel,

cargo vessel of greater than three hundred or more gross tons, or

passenger vessel of greater than three hundred or more gross tons have

a contingency plan for the containment and cleanup of oil spills from

such vessel into the waters of the State.

Comment: NOAA should provide a more complete explanation of how

implementation of each of the regulations would put U.S. shipping

companies at an economic disadvantage in relation to foreign vessels.

Precisely what would be the estimated cost in dollars, time,

inconvenience, and ultimate impact upon U.S. shipping companies.

Response: NOAA is promulgating no regulations that will adversely

affect domestic vessels.

Comment: NOAA should put forth a vessel traffic management plan,

spearheaded by the U.S. Coast Guard, that addresses research needs,

vessel traffic monitoring and communication systems, and future

regulatory alternatives. The management plan should be proactive, and

establish a timetable for considering new vessel traffic regulations in

the future.

Response: NOAA is working with the U.S. Coast Guard, which has the

primary authority for vessel traffic regulation, to determine the need

for additional measures to ensure protection of Sanctuary resources and

qualities. In addition, NOAA will work with the U.S. Army Corps of

Engineers (COE) and the EPA regarding vessel traffic activities

resulting from the transport of dredged material through the Sanctuary

for disposal outside the Sanctuary. These consultations will aim to

determine which resources are most at risk, which vessel traffic

practices are most threatening, and which regulations or restrictions

would be most appropriate to alleviate such risk.

NOAA agrees that an improved vessel traffic monitoring and

communication system along the coast is desirable. OPA 90 requires the

Secretary of Transportation to complete a comprehensive study on the

impact of installation, expansion, or improvement of vessel traffic

servicing systems. NOAA will work with the State of Washington's OMS,

the U.S. Coast Guard, and appropriate public agencies during the

development of these monitoring studies to determine an appropriate

system for the Sanctuary and the need for any additional site-specific

protective measures.

Vessel traffic monitoring and research and coordination on this

subject have been incorporated into the Sanctuary management plan.

Comment: Allow only double-hulled vessels in the Sanctuary.

Response: OPA 90 establishes double hull requirements for tank

vessels. Most tank vessels over 5,000 gross tons will be required to

have double hulls by 2010. Vessels under 5,000 gross tons will be

required to have a double hull or a double containment system by 2015.

All newly constructed tankers must have a double hull (or double

containment system if under 5,000 gross tons), while existing vessels

are phased out over a period of years.

As previously stated, the U.S. Coast Guard is completing a study of

a tanker free zone where tank vessels would be required to remain

offshore during coastal transits. Further, a proposal to establish an

ATBA within the Sanctuary boundary has been developed and will be

submitted to the International Maritime Organization (IMO) for approval

at the earliest possible date which, in accordance with IMO's

procedures, is June, 1994. Both actions will serve to ensure that

hazardous material laden vessels will remain an appropriate distance

offshore.

Comment: Require vessels to have a pilot aboard.

Response: Requirements for pilots are set forth in both Federal and

state regulations. NOAA will monitor and review vessel traffic in the

Sanctuary and make recommendations to the appropriate regulatory

agencies, state and Federal, regarding the need for additional pilotage

requirements. Pilotage is currently compulsory for all vessels except

those under enrollment or engaged exclusively in the coasting trade on

the West Coast of the continental United States (including Alaska) and/

or British Columbia. Port Angeles has been designated as the pilotage

station for all vessels enroute to or from the sea.

OPA 90 requires the U.S. Coast Guard to designate U.S. waters where

a second licensed officer must be on the bridge of a coastwise seagoing

tanker over 1,600 gross tons. Under the Ports and Waterways Safety Act,

the U.S. Coast Guard also is proposing to require a second officer on

foreign flag tankers over 1,600 gross tons and on U.S. registered

tankers over 1,600 gross tons.

Comment: Establish a tonnage limit within three nautical miles of

shore except for those making a port call.

Response: All types of vessels and traffic patterns will be

reviewed by NOAA, the U.S. Coast Guard, and the State of Washington OMS

to determine any appropriate action to be taken. In conducting this

review, attention will be paid to vessel type, cargo carried, and

vessel size.

Comment: Require all vessels to have English speaking bridge

personnel.

Response: All vessels required to participate in the Juan de Fuca

region CVTMS are required to make all reports in English.

Comment: Curtail traffic during poor weather conditions.

Response: NOAA will work with the state, U.S. Coast Guard, and

appropriate public agencies to determine the need for further vessel

traffic regulations to specifically address vessel traffic during

adverse weather conditions.

During conditions of vessel congestion, adverse weather, reduced

visibility, or other hazardous circumstances in the area of the Juan de

Fuca Region CVTMS, the Cooperative Vessel Traffic Management Center may

issue directions to control and supervise traffic. They may also

specify times when vessels may enter, move within or through, or depart

from ports, harbors, or other waters of the CVTMS Zone.

Further, the U.S. Coast Guard's Navigation Rules, International and

Inland, speak specifically to the conduct of vessels while at sea. Rule

6 of the International and Inland Steering and Sailing Rules states

that ``Every vessel shall at all times proceed at a safe speed so that

she can take proper and effective action to avoid collision and be

stopped within a distance appropriate to the prevailing circumstances

and conditions.''

Comment: Prohibit engine powered water craft of any type.

Response: A fundamental objective of the sanctuary program is ``to

facilitate, to the extent compatible with the primary objective of

resource protection, all public and private uses of the resources of

these marine areas not prohibited pursuant to other authorities'' (16

U.S.C. 1431(b)(5)). NOAA will consider the threats from all types of

vessels--power driven, sailing, or paddle propelled--as a continuing

analysis of vessel traffic within the sanctuary boundaries.

Comment: Manage the off-loading or exchange of cargo or oil.

Response: No offloading or exchange of oil occurs within the

boundary of the Sanctuary. This activity generally occurs in ports

which are located outside of the Sanctuary boundary. Further, this type

of activity is addressed by both OPA 90 and programs being established

by the recently created Washington State OMS.

Comment: Prohibit shipment of reclaimed spent nuclear fuel from

foreign reactors through the Sanctuary.

Response: As previously noted, NOAA has recommended to the U.S.

Coast Guard that an IMO approved ATBA be established within the

Sanctuary boundary. This would require vessels transporting hazardous

materials to remain at least 25 nautical miles offshore while in the

vicinity of Sanctuary waters or until making their approach to the

Strait of Juan de Fuca using the established CVTMS traffic separation

scheme.

NOAA will also work with the State of Washington's OMS and both the

U.S. and Canadian Coast Guards to be informed of, and alerted to, in a

timely and regular manner, all hazardous cargo carriers transiting near

Sanctuary waters. Further, through participation in regular meetings of

the Washington State Regional Marine Safety Committees and discussions

with the U. S. Coast Guard, NOAA will ensure that contingency plans

adequately address such transport issues.

Comment: Prohibit commercial vessel anchorages within the

Sanctuary, particularly off Makah Bay, except in emergencies.

Response: The use of the Makah Bay anchorage by vessels waiting

either for an available pilot at Port Angeles or instructions from

their home office, has been examined. Currently, its use as a temporary

anchorage has been agreed upon by both the U.S. and Canadian Coast

Guards. This is viewed as a more favorable alternative than having such

vessels continuously underway within, and off the entrances to, the

Strait. Vessels at anchor are subject to MARPOL, U.S. Federal law, and

Sanctuary regulations regarding discharges. The use of this anchorage

is monitored by Tofino Vessel Traffic Service which can also educate

such vessels regarding the Sanctuary and its regulations.

Comment: Clarify NOAA's authority to regulate vessel traffic within

State of Washington waters.

Response: Section 303 of the MPRSA gives NOAA the authority to

promulgate regulations to implement the designation, including

regulations necessary to achieve resource protection.

Comment: The State and Federal government have appropriated $75

million to expand and enhance maritime activity at Grays Harbor through

waterway dredging and port terminal development programs. If vessel

traffic is restricted, one branch of the government would be defeating

the purpose of other parts of the government.

Response: NOAA has studied vessel traffic along the Washington

coast. The result of the analysis was the recommendation for the

previously mentioned ATBA. This proposal, if adopted, would add

approximately 17 nautical miles on a transit from Grays Harbor to the

entrance of the Straits of Juan de Fuca and approximately 21 nautical

miles on a transit from the entrance of the Straits to Grays Harbor. In

comparison to the costs of cleanup, legal fees, liability, fines, loss

of cargo, and vessel and environmental damages, the proposals to

establish the ATBA seem reasonable.

Comment: Double-hulled proposals are not economically sensible in

the foreseeable future.

Response: Congress has mandated (OPA 90) national double hull

requirements for tank vessels.

Issue: Overflights

Comment: Establish the boundary for overflights at the beach rather

than one (1) mile inland.

Response: The boundary for overflights is at the shoreline and not

one (1) mile inland.

Comment: Establish a 2,500 foot minimum flight altitude over the

sanctuary.

Response: To be consonant with current regulations regarding

flights over charted National Park Service Areas, U.S. Fish and

Wildlife Service Areas, and U.S. Forest Service Areas, NOAA is

prohibiting the flying of motorized aircraft at less than 2,000 feet

above the Sanctuary within one nautical mile of the Flattery Rocks,

Quillayute Needles, or Copalis National Wildlife Refuge, and at less

than 2,000 feet above the Sanctuary within one nautical mile seaward

from the coastal boundary of the Sanctuary, except as necessary for

valid law enforcement purposes, for activities related to tribal timber

operations conducted on reservation lands, or to transport persons or

supplies to or from reservation lands as authorized by a governing body

of an Indian Tribe. NOAA will work with the Federal Aviation

Administration (FAA) on how best to reflect this limitation on

aeronautical charts.

Comment: Permit search and rescue at all times by whatever aircraft

is needed to accomplish the task.

Response: The prohibitions set forth in the Sanctuary regulations

do not apply to activities necessary to respond to emergencies

threatening life, property, or the environment pursuant to

Sec. 925.5(c) of the regulations. Thus, in any emergency, search and

rescue aircraft are allowed to perform whatever tasks are required

within the Sanctuary boundary.

Comment: When necessary to bring a research flight into the area

below the Sanctuary prescribed ceiling, regulations should require the

plane's engine be kept at or below a reasonable decibel level as heard

from the ground.

Response: FAA regulations (14 CFR part 36) codify noise standards

for aircraft operating within U.S. airspace. Adherence to these

standards is already required. When research is to be conducted within

the Sanctuary boundary, aircraft operators will be required to obtain a

permit and conduct such research in such a manner so as to minimize

disturbance yet remain within safe aircraft operating parameters.

Issue: Living Resource Extraction

Fishing

Comment: NOAA should not restrict access to fishing grounds or

catch-ability. Crab fishing and razor clam digging must be allowed.

Response: The regulation of fishing is not authorized by the

Designation Document. NOAA has determined that existing fishery

management authorities are adequate to address fishery resource issues.

As with all other fisheries that occur within the Sanctuary, crab

fishing and razor clam digging remain under the regulatory authority of

existing Federal, state, tribal and regional fishery authorities. NOAA

does not view fishing as contrary to the goals of the Sanctuary. The

sanctuary program is by law mandated ``to facilitate to the extent

compatible with the primary objective of resource protection, all

public and private uses of the resources * * * .'' (including fishing)

(16 U.S.C. 1431(b)(5)).

Existing fishery management agencies are primarily concerned with

the regulation and management of fish stocks for a healthy fishery. In

contrast, the National Marine Sanctuary Program has a different and

broader mandate under the MPRSA to protect all Sanctuary resources on

an ecosystem-wide basis. Thus, while fishery agencies may be concerned

about certain fishing efforts and techniques in relation to fish stock

abundance and distribution, the Marine Sanctuary Program is also

concerned about the potential incidental impacts of specific fishery

techniques on all Sanctuary resources including benthic habitats or

marine mammals as well as the role the target species plays in the

health of the ecosystem. In the case of the Olympic Coast, fish

resources are already extensively managed by existing authorities and

NOAA does not envision a fishery management role for the Sanctuary

Program. Accordingly, fishing activities have not been included in the

list of activities in the Designation Document subject to regulation as

part of the Sanctuary regime. However, the Sanctuary Program will

provide research results and recommendations to existing fishery

management agencies in order to enhance the protection of fishery and

other resources within the Sanctuary.

Comment: No additional fisheries management or regulation is needed

in the Sanctuary. Commercial, recreation, and subsistence fishing can

be compatible with sanctuary designation, and the existing regulatory

framework is adequate at this time.

Response: See response to previous comment. The Designation

Document places kelp harvesting within the scope of future regulation

since there is no existing management plan for kelp harvesting.

Comment: Clarify the language associated with commercial fishing

practices near sunken vessels, rocks and reefs in the proposed

sanctuary to insure continuance of historical and customary fishing

practices. Existing Federal and state regulations adequately protect

archeological treasures, man-made reefs, and natural rock and reef

formations. The FEIS should acknowledge and permit prevailing

practices.

Response: Commercial fishing vis-a-vis historical resources is an

exempted activity under the prohibition against disturbance of

historical resources. However, the exemption is only for incidental

disturbance and therefore does not allow deliberate disturbance.

Comment: Fishing should either be regulated, or placed in the scope

of regulation, because there may be a time in the future when fishing

needs to be regulated by the Sanctuary.

Response: NOAA believes that existing authorities are adequate to

regulate fishing. Should the need arise to regulate fishing as part of

the Sanctuary management regime, the Designation Document could be

amended.

Comment: Proposed regulations should result in the gradual

reduction of fishing, aquaculture, kelp harvesting and waterfowl

hunting to insure that no commercial activity threatens the integrity

of any resources in the proposed Sanctuary. Some commenters believed

that the Sanctuary should ban all commercial fishing activities except

Native American fishing activities.

Response: A blanket reduction of resource-use activities across the

Sanctuary could not be imposed without credible evidence that each

resource affected is threatened by a population decrease or stock

failure. Absent such evidence, the Act requires that existing uses be

facilitated to the extent compatible with the primary objective of

resource protection.

Comment: True refugia should be established where all consumptive

uses are prohibited for a period of time.

Response: The determination of whether refugia are established in

the Sanctuary will be done in coordination with the NMFS, PFMC,

Washington Department of Fisheries (WDF), the tribes, environmental

groups, and industry. The Sanctuary Advisory Committee (SAC) will be an

important forum to address this issue. If, in coordination with other

governmental agencies, it is determined that establishment of refugia

is a desirable alternative, NOAA will analyze the alternative through

the preparation of an environmental impact statement/management plan

and solicitation of public input pursuant to the NEPA and the APA.

Comment: Driftnets, trawling, and all dragnet fisheries should be

banned from the proposed Sanctuary as inconsistent with the regulation

prohibiting alteration of, or construction on, the seabed.

Response: The only net gear used in fisheries in the Sanctuary are

trolling gear (for salmon) and trawling gear (for groundfish). The

regulatory prohibition on altering the seabed includes an exception for

incidental disturbance resulting from traditional fishing operations.

NMFS has conducted a limited study of the impact of trawl gear on the

benthos and has not identified any resulting systematic destruction.

However, the regulations could be modified to regulate any activity

that is shown to cause significant disturbance of the seabed. This

reflects adherence to the MPRSA's goals of preserving natural and

human-use qualities of a marine area.

High-seas driftnets, defined as nets greater than 1.5 miles long,

have been banned pursuant to United Nations resolution 46/215. While

gillnets and setnets are currently used in the inland waters of the

State of Washington, they are not used in Sanctuary waters.

Comment: NOAA should facilitate the regulation of resource

extraction within the Sanctuary under a regulatory framework that is

controlled by a single agency.

Response: Regulatory authority over resources and resource

extraction industries is expressly granted by state and Federal

statute. NOAA does not have the primary regulatory authority over

resource extraction. NOAA can act to coordinate the various regulators

and can impose additional regulations, but cannot reassign itself or

other agencies regulatory authority.

Comment: NOAA must clarify and acknowledge all tribal treaty

fishing rights in the FEIS/MP, and the interaction of Sanctuary

regulations with the right of tribes to fish in their Usual and

Accustomed fishing areas.

Response: This issue is clarified in the Designation Document and

in Part II (under Socio-Demographic profile and Land Use). In addition,

the coastal tribe's treaty rights are acknowledged in several sections

of the regulations.

Comment: The entire study area must be considered as a ``fishing

area'' since fish migrate along the entire Washington coast.

Response: NOAA recognizes that fish ``know no boundaries in the

sea.'' The fishing areas identified in the FEIS/MP only represent known

locations where certain fishery activity is concentrated. The fishing

areas displayed in the FEIS/MP are not related to regulatory

jurisdiction in any way. They are simplified visual aids to complement

the discussion of resources off the coast of Washington.

Aquaculture

Comment: Clarify NOAA's intention to regulate, condition, or

prohibit aquaculture activities throughout the Sanctuary and adjacent

to Indian reservations.

Response: The Sanctuary regulations do not directly prohibit

aquaculture operations within the Sanctuary boundary. However,

discharge of matter into the Sanctuary, or alteration of or

construction on the seabed in connection with aquaculture activities

are prohibited. It is unlikely that permits would be granted for

aquaculture activities in the Sanctuary that violate these

prohibitions. This determination is based upon U.S. Army Corps of

Engineers (COE) guidance related to permits for fish pen mariculture

operations, which prohibits fish farms in Federal natural resource

areas, such as national seashores, wilderness areas, wildlife refuges,

parks or other areas designated for similar purposes (e.g., national

marine sanctuaries).

Comment: NOAA should change the proposed regulation governing

alteration of or construction on the seabed to ``maintenance and

development of approved aquaculture operations'', and strike ``existing

prior to the effective date of these regulations.'' Eliminating future

aquaculture development off the Olympic Coast would preclude

opportunities for both private shellfish and finfish production and for

public enhancement. Technology is being developed which would result in

minimal environmental imbalance, and would afford employment for

regional communities.

Response: See response to previous comment.

Comment: The Sanctuary should not regulate aquaculture activities

because there are sufficient regulations in place.

Response: See response to previous comment.

Comment: The Sanctuary should provide mutually agreed upon

requirements for aquaculture activities among the oyster growers of

Willapa Bay.

Response: The boundary of the Sanctuary does not include Willapa

Bay.

Comment: The discussion in the FEIS/MP on the impacts of

aquaculture needs to be expanded and the proposal to not regulate

aquaculture in the Sanctuary should be re-assessed. The FEIS/MP needs

to address the use of drugs in farm-raised fish.

Response: The discussion of aquaculture within the Sanctuary is

intended only to evaluate the current status of the industry in the

study area--it is not intended to measure aggregate impacts. The

request for expanded discussion of resources does not identify specific

issues of discussion. A reassessment of aquaculture vis-a-vis the

Sanctuary reveals that the industry is adequately regulated by existing

state and Federal requirements. However, any discharges from such

operations into the Sanctuary would be prohibited. The Sanctuary has no

jurisdiction over the use of drugs in aquaculture--such determinations

are under the purview of the Washington State Department of Health

(WDH) and the Federal Food and Drug Administration (FDA).

Comment: All aquaculture should be banned from within the

Sanctuary.

Response: See responses to previous comments regarding aquaculture.

Comment: Kelp harvesting should be banned or regulated within the

Sanctuary.

Response: At present there is no kelp harvesting within the

Sanctuary. While kelp harvesting was proposed to be included within the

scope of activities listed in the Designation Document as subject to

potential regulation under the Sanctuary Program, the final Designation

Document does not list kelp harvesting. Kelp is only found within the

state waters of the Sanctuary. Because the Washington Department of

Natural Resources (DNR) has promulgated regulations for the management

of kelp which should adequately protect the kelp, NOAA does not believe

it necessary to list kelp as being subject to potential Sanctuary

Program regulation. If the state regulations do not adequately protect

the kelp within the Sanctuary, the Sanctuary Designation Document could

be amended following the same procedures used to promulgate this

Designation Document to authorize the regulation of kelp.

Issue: Marine Mammals, Sea Turtles and Seabirds

Comment: Clarify ``takings''. The prohibition on the taking of

marine mammals and seabirds within the Sanctuary is redundant with the

ESA, the MMPA and the MBTA, and what further impact it will have on the

fishing community.

Response: ``Taking'' is defined in section 925.3 of the regulations

to mean: (1) For any marine mammal, sea turtle or seabird listed as

either endangered or threatened pursuant to the ESA to harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or

to attempt to engage in any such conduct and, (2) for any other marine

mammal, sea turtle, or seabird, the term means to harass, hunt,

capture, kill, collect or injure, or to attempt to engage in any such

conduct. While marine mammals, seabirds and endangered and threatened

species are protected under the MMPA, ESA and MBTA, NOAA believes that

the higher penalties afforded under the MPRSA will provide a stronger

deterrent.

The MBTA sets maximum criminal fines at either $500 or $2,000 per

violation, depending on the violation. The MMPA sets maximum civil

penalties at $10,000 and maximum criminal fines at $20,000. The ESA

sets maximum civil penalties at $500, $12,000 or $25,000 per violation,

depending on the violation; maximum criminal fines are set at $50,000.

(All three statutes also provide for imprisonment for criminal

violations.)

Section 307 of the MPRSA allows NOAA to assess civil penalties as

high as $100,000 for each violation. In addition, monies collected

under the MPRSA are available for use by the National Marine Sanctuary

Program.

Comment: The MBTA would not allow any taking of migratory birds in

the sanctuary, thus providing even stronger prohibition than sanctuary

status can provide.

Response: See above response. Section 925.5(a)(6) of the Sanctuary

regulations prohibits the taking of migratory birds within the

Sanctuary. Including a prohibition on ``taking'' marine birds in the

Sanctuary regulations allows such violations to be subject to the civil

penalties authorized by the MPRSA which far exceed those authorized by

the MBTA.

Comment: Prohibit all takings of marine mammals and seabirds,

regardless of military or fishing exemptions.

Response: Section 925.5(a)(6) of the Sanctuary regulations

prohibits the taking of marine mammals and seabirds in or above the

Sanctuary except as authorized by the NMFS or the United States Fish

and Wildlife Service under the authority of the MMPA, as amended, 16

U.S.C. 1361 et seq., the ESA, as amended, 16 U.S.C. 1531 et seq., and

the MBTA, as amended, 16 U.S.C. 703 et seq., or pursuant to any treaty

with an Indian tribe to which the United States is a party, provided

that the treaty right is exercised in accordance with the MMPA, ESA,

and MBTA, to the extent that they apply. Exemptions include a limited

five-year incidental take of marine mammals provided by interim

regulations promulgated pursuant to the MMPA, which are in effect until

October, 1993. The ESA also has a limited incidental take exemption.

See 16 U.S.C. section 1539(a)(2)B(i). NMFS, in conjunction with

environmental groups and the fishing industry, is developing a

permanent management regime to be implemented upon expiration of the

MMPA interim regulations.

If in the future NOAA determines that the existing regulations

promulgated under MMPA, ESA, MBTA or any other state or Federal statute

are not adequate to ensure the coordinated and comprehensive management

of marine mammals and seabirds, changes to the Sanctuary regulations

would be undertaken in accordance with the requirements of the MPRSA,

NEPA and APA.

Comment: Exclude from [takings] prohibition birds considered game.

Response: The only birds Sec. 925.5(a)(6) prohibits the taking of

are seabirds--seabirds are not considered game species.

Comment: Section 925.5(a)(6) of the proposed regulations would

prohibit the taking of marine mammals or seabirds unless affirmatively

permitted by regulations promulgated under authority of the ESA, MMPA,

or MBTA. Because these regulations do not expressly permit any takings

by treaty Indians, the proposed sanctuary regulations would effectively

prohibit the Makah Tribe from exercising their treaty rights to take

marine mammals. The proposed regulations would also hinder the tribe's

ability to exercise its fishing rights by precluding fisheries which

result in the incidental taking of marine mammals and seabirds.

The DEIS/MP offers no conservation justification for imposing

restrictions on the taking of marine mammals and seabirds which go

beyond the restrictions imposed by the ESA and MMPA. The DEIS/MP

concedes that the purpose of the proposed sanctuary regulations is not

to protect particular species from extinction. According to the DEIS,

the purpose of these additional prohibitions in the proposed

regulations is to ``extend protection for sanctuary resources on an

environmentally holistic basis.'' This goal does not permit

infringement of treaty rights. Therefore, the regulations should be

amended by adding ``or in accordance with any treaty to which the

United States is a party.''

Response: The regulatory prohibitions do not abrogate or obstruct

any rights under an existing treaty. The regulations have been changed

by adding ``or pursuant to any treaty with an Indian tribe to which the

United States is a party, provided that the treaty right is exercised

in accordance with the MMPA, ESA and MBTA, to the extent that they

apply.'' The treaty between the Makah Tribe and the United States

explicitly assures the ``right of taking fish and of whaling or sealing

at usual accustomed grounds and stations.'' (Article 4, Treaty of Neah

Bay, 1855).

Incidental takes of marine mammals can legally occur under permit

and exemption provisions of the MMPA. Currently, Washington coastal

tribes apply for and receive exemption certificates from NMFS for the

incidental taking of marine mammals during fishing. Fees for this

exemption are waived for tribes.

Further, tribes cannot be denied entry into any fishery based on

the likelihood or occurrence of seabird or marine mammal takings.

Comment: Change the wording of the regulation to read ``as

authorized or permitted by NMFS or [the U.S. Fish and Wildlife Service]

USFWS under the authority of the MMPA and ESA.'' NMFS suggests that the

preamble and/or regulations clarify that Sanctuary permits will not be

required for activities authorized or permitted by NMFS or USFWS under

MMPA or ESA. Such clarification would relieve many concerns over the

possibility of overlapping and potentially duplicative permitting

requirements.

Response: NOAA has amended the regulation by adding ``as authorized

by the National Marine Fisheries Service or the United States Fish and

Wildlife Service under the authority of the Marine Mammal Protection

Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species

Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird

Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq. * * *.'' The

inclusion of ``as authorized or permitted'' is viewed by NOAA as

redundant.

Issue: Sanctuary Administration

Regulations/Permits

Comment: NOAA should use economic incentives rather than

regulations to ensure that activities do not impact resources.

Response: NOAA does not have sufficient authority to provide

economic incentives to ensure that activities do not impact Sanctuary

resources. Even regulations, which include economic disincentives such

as monetary penalties, are not sufficient to ensure that any activity

does not impact resources.

Comment: Clarify the statement: ``When a conflict with a sanctuary

regulation related to specific [non-sanctuary] regulations occurs, the

one more protective of sanctuary resources will prevail.'' NOAA

regulations should not override those of the local jurisdictions. NOAA

needs to clarify:

(1) The application of this policy to fishing;

(2) Types of conflicts the statement applies to;

(3) Who determines whether a conflict exists; and

(4) The process for resolving a conflict.

Response: NOAA agrees that the statement as written in the DEIS/MP

is unclear. Accordingly, the statement has been deleted in the FEIS/MP.

Essentially, the statement meant that if two regulations exist covering

an activity in the Sanctuary, one promulgated by NOAA under the MPRSA

authority and the other by another agency under a different statute,

compliance with the less restrictive regulation will not relieve the

obligation to comply with the other more restrictive one.

Comment: NOAA should follow the guidelines of NEPA when proposing

any change in regulations that are listed in the scope of regulations.

This is especially applicable to vessel traffic and discharge

regulations. Also, clarification is needed on the rulemaking and

amendment processes.

Response: Listing activities in the scope of regulation reflects

that the issues and alternatives were addressed in the FEIS/MP, public

hearings were held, and public comments were solicited regarding the

activities. If NOAA later proposes the regulation of an activity listed

in the scope of regulations in the Designation Document but not

regulated at the time of Sanctuary designation, NOAA will request

public comments on the proposal. When NOAA plans to amend a rule that

has been promulgated, an analysis of the issues, affected environment,

alternatives and consequences will be completed and public comments

solicited. NOAA will then modify the proposal if necessary and respond

to public comments when taking the final action.

Comment: A procedure must be established to disagree with

management and issue an appeal if permits to conduct research are

denied.

Response: Section 925.12 of the Sanctuary regulations set forth the

procedures for appealing denials of Sanctuary permits. The appeal

process involves a written statement by the appellant to the Assistant

Administrator of NOAA. The Assistant Administrator may conduct a

hearing on the appeal.

Comment: Clarify the procedure for obtaining permits for low-flying

aircraft engaged in ongoing species monitoring studies and damage

assessment studies in response to an incident such as an oil spill.

Activities authorized by the NMFS and USFWS should not require a

Sanctuary permit because the requirements for permits would be

duplicative.

Response: All flights engaged in monitoring or research activities

that fly below 2,000 feet are required to obtain a Sanctuary permit,

or, if the activity is already pursuant to a permit, to have that

permit certified. Permits are not required for overflights necessary to

respond to emergencies threatening life, property or the environment.

Comment: NOAA should not grandfather existing uses if otherwise

prohibited by sanctuary regulations.

Response: Section 304(c)(1)(B) of the MPRSA specifies that NOAA may

not terminate any valid lease, permit, license, or right of subsistence

use or of access, if the lease, permit, license, or right ``is in

existence on the date of designation of any national marine sanctuary *

* *.''

Comment: Treaty secured rights should not require sanctuary

certification. Further, NOAA should obligate federal regulators to

consider and protect tribal interests when issuing permits which may

affect those interests.

Response: Treaty secured rights do not require certification by the

Sanctuary program pursuant to Sec. 925.5(g). NOAA agrees that pursuant

to its trust responsibility to the tribes, it should consider and

protect tribal interests when issuing permits. Therefore, Secs. 925.9

and 925.11 have been modified accordingly. While NOAA as a trustee

urges all other Federal agencies to consider and protect tribal

interests, it does not have the legal authority to require other

Federal agencies to consider and protect tribal interests when issuing

permits pursuant to other regulatory authorities.

Comment: The regulations, exemptions and authority to place

conditions on existing permitted activities are unclear.

Response: Section 304(c)(2) of the MPRSA provides NOAA with the

right to regulate the exercise of a lease, permit, license, or right of

subsistence use or of access existing on the effective date of

Sanctuary designation.

Comment: Sanctuary management should be formally coordinated with

tribal regulatory and law enforcement authorities through cooperative

agreements.

Response: Cooperative agreements will be developed as necessary

between NOAA and the tribes regarding regulatory and law enforcement

activities.

Comment: The Sanctuary should offer increased enforcement which

should be conducted by Sanctuary personnel rather than the U.S. Coast

Guard. Clarify the enforcement procedures.

Response: There will be enforcement of Sanctuary regulations

through cooperative agreements with the U.S. Coast Guard, NMFS, WDF,

the coastal tribes, USFWS, and the National Park Service (NPS).

Considering fiscal constraints, level of use, and availability of

enforcement personnel working in the field already, NOAA has determined

that it is not a high immediate priority to hire Sanctuary enforcement

personnel. The Sanctuary must first become fully staffed and

operational, and a determination must be made whether additional

enforcement personnel are needed. The enforcement procedures will be

determined pursuant to the cooperative agreements that are established.

Comment: The broad scope of the discharge prohibition will require

a well-coordinated enforcement operation to monitor all discharge and

disposal activities from sources on land as well as in offshore,

coastal and inland waters over large areas outside of the Sanctuary

boundary. It may be impossible to determine the origin of discharges or

deposits found in the Sanctuary after the dumping activity has

occurred.

Response: The prohibition on discharges from outside the boundary

relates to discharges that enter and injure Sanctuary resources. NOAA

must establish that discharges not only enter, but injure the resources

before enforcement actions will be taken. It will, therefore be

desirable for NOAA to undertake a comprehensive monitoring program by

which it can determine ecosystem health and use impacts.

Comment: NOAA should impose unlimited liability for spills extended

to shipping companies and firms providing original source materials

involved in polluting activities.

Response: NOAA is permitted to seek penalties of up to $100,000 per

day for a violation pursuant to section 307(c)(1) of the MPRSA (16

U.S.C. 1437(c)(1)), and for natural resource damages pursuant to

section 312 of the MPRSA (16 U.S.C. 1443).

Transboundary Coordination

Comment: NOAA should coordinate with other Federal and Canadian

authorities to regulate vessel traffic, reduce the risk of oil spills,

and eliminate oil and gas drilling in Canadian waters adjacent to the

proposed sanctuary. NOAA should encourage an adjacent sanctuary along

the west coast of Vancouver Island.

Response: NOAA agrees and is working with the Canadian Coast Guard,

the U.S. Coast Guard and the Washington OMS to reduce the risk of oil

spills. The regulation of vessel traffic will currently remain with the

U.S. and Canadian Coast Guards and the OMS. NOAA will support any

Canadian initiative to designate a marine protected area in Canadian

waters on the Pacific Coast.

Beach Management Policies

Comment: NOAA should grandfather in the existing beach management

policies including allowable beach driving activities.

Response: The boundary of the Sanctuary does not encompass beaches

where beach driving is permitted.

Advisory Committee/Decision Making

Comment: NOAA and the State of Washington should work together to

determine the composition of the Sanctuary Advisory Committee (SAC).

The SAC should include representatives from private landowners, local

industry, the county and tribes. The SAC should be based at the local

level to oversee operations and help maintain strong local input.

Response: NOAA will work with local user and interest groups and

state and local governments to obtain broad representation on the SAC.

The law limits the SAC to no more than 15 members.

Comment: The SAC should have the power to direct the Sanctuary

manger and set priorities for funding. The SAC decisions should be

binding. If the decisions are not binding, then the manager should at

least provide a rationale for any actions taken which are directly

contrary to the recommendations of the SAC.

Response: The SAC recommendations to the manager will be

instrumental in guiding the manager with respect to prioritizing

actions. If the manager chooses not to pursue the recommendations of

the SAC, a rationale will be provided to the members of the SAC.

Comment: One of the first tasks of the SAC should be to review and

update the State of Washington's coastal zone management program to

ensure consistency with the Sanctuary management plan. The Sanctuary

management plan goals and objectives should also be reviewed.

Response: Prior to designation, the State of Washington will review

the FEIS/MP as part of its consistency determination as it relates to

Washington's approved coastal zone management program. The WDOE has

jurisdiction for the Shoreline Management Act. The SAC will not share

that jurisdiction, rather, the SAC will be responsible for reviewing

the Sanctuary management plan goals and objectives. The SAC's first

priority will be to help determine the five-year Sanctuary operating

plan establishing priorities for education, research, monitoring,

facilities siting and administration.

Miscellaneous

Comment: Firearms should be controlled or banned within the

Sanctuary.

Response: Possession and use of firearms is regulated by State law

for public safety purposes. The primary purpose of Sanctuary

designation is resource protection.

Management Alternatives/Strategies

Comment: The administrative models being discussed in the Northwest

Straits proposal should be considered.

Response: The administrative model identifying NOAA as the lead

agency in managing the sanctuary with guidance and assistance from the

SAC (which will represent State and local interests) will be

implemented in the Olympic Coast National Marine Sanctuary. The

administrative model which involves joint administration between NOAA

and the State of Washington was not considered for the Olympic Coast

National Marine Sanctuary because the Sanctuary is predominately in

Federal waters. One model suggested for the proposed Northwest Straits

National Marine Sanctuary focuses on joint administration because the

Sanctuary would be located entirely within State waters. NOAA will work

closely with the state and counties and other Federal agencies in the

administration of the Olympic Coast National Marine Sanctuary.

Comment: The management plan needs to account for tribal

sovereignty and jurisdiction with respect to cultural resources, law

enforcement and research practices. NOAA needs to recognize the need to

coordinate with each tribal entity in the same manner as with the state

and its management agencies.

Response: NOAA acknowledges the importance of tribal sovereignty.

Nothing in the designation will impact the treaty rights of the coastal

tribes. NOAA will consult closely with the tribes on any action that

may potentially impact tribal rights or interests.

Comment: NOAA should choose management plan alternative 1 which

proposes to gradually phase in program activities and staffing. Staff

could be co-located with another Federal agency in Port Angeles, with

satellite sites in Klaloch or La Push. National concerns with fiscal

restraint support this choice.

Some commenters supported management plan alternative 2 which

proposes to set up the sanctuary headquarters and immediately provide

full-staffing. Sanctuary headquarters should be located on the coast.

The former Makah Air Force Station is one possible location.

Response: NOAA is experiencing the fiscal constraints that all

Federal programs are experiencing. NOAA proposes to balance the needs

for resource protection and fiscal restraint by phasing in staffing and

maximizing cooperative relationships with other agencies and

jurisdictions working in the area (e.g., NPS, U.S. Coast Guard, the

tribes, and the USFWS) to implement the management plan. The Sanctuary

manager will have an office on the Olympic Coast with administrative

support facilities in Seattle.

Comment: Implementation of the final management plan must be

adequately funded in order to prevent pollution and resource damage.

Response: The level of funding for the first year after Sanctuary

designation will depend upon the Sanctuary Program's funding which is

authorized and appropriated by Act of Congress. However, the reality of

the program's funding situation will require the manager and SAC to

identify alternative sources of funding for Sanctuary programs.

Comment: A volunteer program, coordinated by a full-time volunteer

coordinator, should be established to assist in implementation of the

management plan.

Response: NOAA agrees that the establishment of a volunteer program

can assist in implementation of the management plan. The SAC will be

influential in determining the priority of hiring a volunteer

coordinator.

Comment: The management alternatives should more accurately

describe NOAA's comprehensive planning as implemented through a

combination of legal management authority over certain specific

Sanctuary activities and advisory coordination with other entities

managing the remaining essential components.

Response: NOAA agrees. The FEIS/MP outlines the regulations which

NOAA is promulgating. The FEIS/MP also outlines the role of the SAC,

whose composition is aimed at enhancing the coordination with other

entities with management jurisdiction in the Sanctuary.

Comment: The Sanctuary manager should have a great deal of

responsibility for setting the Sanctuary budget, as well as assigning

funds to local governments for assistance in implementing management

plans.

Response: The Sanctuary manager will have primary responsibility

for recommending the Sanctuary budget to headquarters. The Sanctuaries

and Reserves Division has responsibility for the entire National Marine

Sanctuary Program budget, and will work with the site manager to

develop the annual program budget. The manager has the discretion to

earmark funds to local governments or groups to implement Sanctuary

programs.

Comment: Zoning plans should be implemented which accommodate the

varying resource management needs within the Sanctuary. Some zoning

examples include allowing for the needs of ports to the south,

designating areas which would be closed to all consumptive uses on a

rotating basis, and zoning specific areas within the sanctuary for the

sole purposes of research, recreational use, commercial use and no use.

Response: Zoning is not anticipated as part of the FEIS/MP for the

Sanctuary. If NOAA, in consultation with the SAC, believes that zoning

would better meet the needs of the program, the management plan and

regulations can be amended in accordance with the requirements of the

MPRSA, the NEPA and the APA.

Research/Education Protocol

Comment: Research results and data should be shared through

existing databases with Federal and state agencies and tribes. The

sharing of data should be formalized through cooperative agreements.

Response: NOAA agrees that research results and data should be

shared and will pursue appropriate cooperative agreements to ensure

this coordination.

Comment: It is unnecessary to severely restrict or eliminate

activities such as fishing, commercial vessel activity, dredging and

aircraft operation in order to carry out the Sanctuary goals of

promoting research and public education.

Response: The primary goal of sanctuary designation is the

comprehensive long-term protection of marine resources. Some

restrictions are necessary to accomplish this goal. Of the above

activities, only dredging is being eliminated within the Sanctuary

boundary. Research and education provide additional means to promote

the goal of marine resource protection.

Comment: Geophysical exploration should not be prohibited, as the

information gathered from this research can benefit coastal communities

and academic institutions.

Response: NOAA's emphasis on research within the Sanctuary allows

for research which may involve an otherwise prohibited activity (such

as alteration of or construction on the seabed) as long as researchers

obtain a research permit pursuant to Sec. 925.9 of the Sanctuary

regulations. NOAA will determine the environmental consequences of the

proposed research, including short and long term effects on marine

biota (such as noise which may interfere with cetacean communication)

in deciding whether to issue a permit.

Comment: The research program should stress applied research such

as research which can facilitate fisheries management, provide

information on long-term environmental trends, and provide links

between the marine systems and the adjacent terrestrial systems.

Providing research results to decision makers at the various

governmental levels would be an important link in addressing marine

resource problems.

Response: NOAA agrees and has clarified this point in the research

section of the management plan.

Comment: Criteria for acceptable research within the Sanctuary

should be established prior to formal designation of the Sanctuary. The

criteria should be used in review of research permit applications, and

an appeal process should be established in the case of research permit

application denial.

Response: Research permit applications will be reviewed on a case-

by-case basis and evaluated to determine the potential short and long

term impacts of the proposed activities. In addition, Sec. 925.12 of

the regulations sets forth the procedures for appealing to the

Assistant Administrator the denial of a research permit.

Comment: NOAA should conduct research into the effects of fishing

activities on the entire marine system. Fish stocks, species abundance,

and monitoring information should be presented to the PFMC.

Response: The National Ocean Service (which includes the

Sanctuaries and Reserves Division) and the NMFS have entered into a

Memorandum of Understanding outlining the working relationship between

the Sanctuary Program and the NMFS. The PFMC will be involved in this

agreement, through its relationship with the NMFS. Research which

benefits the overall goal of resource protection is addressed within

this agreement by highlighting the need for interagency coordination,

research and monitoring.

Comment: The benefits of sanctuary designation to the fishing

community and others should be clearly articulated. Additionally,

connections between the regulations and resource protection should be

integrated in the education plan (e.g., establishing warning signs at

popular access sites to alert boaters and hikers to the effect of

disturbance of pelagic birds and marine mammals.)

Response: NOAA agrees and has clarified the education goals in the

Sanctuary management plan. NOAA has articulated the benefits of the

Sanctuary program for the fishing community. NOAA will coordinate with

the USFWS and the NPS to post warning signs around critical marine bird

and mammal habitat.

Comment: NOAA should provide for increased education and

interpretation of the shoreline through a variety of media. Educational

materials and outreach programs should be developed by pre-existing

facilities and organizations on the Olympic Peninsula.

Response: Sanctuary designation will provide for increased

education and interpretation of the entire Sanctuary ecosystem.

Education materials and outreach programs will be developed in

cooperation with existing Federal, tribal, state and local entities.

Issue: Informational Amendments of the DEIS/MP

Biological Amendments

Comment: The discussion of the neretic and shelf edge environments

in the DEIS/MP needs to be expanded. The resource assessment must

stress the biological richness of the area.

Response: The resource assessment describing the ecosystem of the

Sanctuary study area has been expanded in the FEIS/MP.

Comment: Biological resources need to be discussed in terms of

ecosystem interactions and not single species descriptions.

Response: NOAA has expanded the discussion to include a description

of the study area from an ecosystem perspective.

Socioeconomic

Comment: The FEIS/MP must contain a socioeconomic impact study of

the regulations on the affected coastal communities and Tribes. Failure

to consider and mitigate these impacts violates the NEPA and Federal

Trust responsibility to Indians.

Response: An economic analysis has been included within the FEIS/

MP. NOAA is not promulgating regulations that will unduly burden the

tribes. The regulations have provisions that recognize treaty secured

rights. In addition, NOAA will consult with the Tribes when considering

permits affecting proposed development activities in the Sanctuary.

NOAA believes that the regulations do not conflict with the economic

interests of the Tribes since the regulations offer increased

protection for those natural resources critical to the tribal economy.

Comment: The Federal government should investigate the possibility

of tax breaks to offset economic impacts of the management plan.

Response: NOAA's actions do not add economic burdens to the area.

The issue of tax breaks should be addressed to an individual's

representatives in Congress. NOAA does not have the legislative

authority to address tax laws.

Supplemental Draft Environmental Impact Statement

Comment: NOAA should submit a supplemental Draft Environmental

Impact Statement for the following reasons: (1) The DEIS/MP lacks a

satisfactory examination of the socioeconomic impacts of the

regulations on the coastal communities; (2) the DEIS/MP contains

erroneous information related to port activities in Grays Harbor; (3)

some information is missing, outdated, or inaccurate; (4) inadequate

definition of the unique environment deserving protection that is

identified by the SEL.

Response: NOAA has determined that the matters for which an SEIS

has been requested can be addressed in the FEIS/MP. The FEIS/MP

addresses the socioeconomic impacts of regulations that could

potentially affect the coastal communities in the alternatives and

consequences section. Further, the vessel traffic section has been

amended substantially to provide a detailed description of the

significance of vessel traffic to the coastal communities.

Additionally, the description of the marine environment under

consideration has been expanded greatly.

Management

Comment: NOAA needs to address or recognize a number of current

local and state regulatory controls in place within the shoreline

areas.

Response: NOAA has addressed local and state regulatory controls

within the shoreline areas. These controls are listed in appendix J.

The following sets forth the text of the Designation Document for

the Olympic Coast National Marine Sanctuary.

Designation Document for the Olympic Coast National Marine

Sanctuary

Under the authority of Title III of the Marine Protection,

Research, and Sanctuaries Act of 1972, as amended (the ``Act''), 16

U.S.C. 1431 et seq., the waters off the Olympic Coast of Washington

State including the U.S. portion of the Strait of Juan de Fuca west of

Koitlah Point, and the submerged lands thereunder, as described in

Article II, are hereby designated as the Olympic Coast National Marine

Sanctuary for the purposes of protecting and managing the conservation,

ecological, recreational, research, educational, historical and

aesthetic resources and qualities of the area.

Article I. Effect of Designation

The Act authorizes the issuance of such final regulations as are

necessary and reasonable to implement the designation, including

managing and protecting the conservation, recreational, ecological,

historical, research, educational, and aesthetic resources and

qualities of the Olympic Coast National Marine Sanctuary. Section 1 of

Article IV of this Designation Document lists activities that either

will be regulated on the effective date of designation or may have to

be regulated at some later date in order to protect Sanctuary resources

and qualities. Listing does not necessarily mean that a type of

activity 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 to include the type of activity by the same

procedures by which the original designation was made.

Article II. Description of the Sanctuary Area

The Olympic Coast National Marine Sanctuary boundary encompasses

approximately 2500 square nautical miles (approximately 8577 sq.

kilometers) of coastal and ocean waters, and the submerged lands

thereunder, off the central and northern coast of the State of

Washington. The Sanctuary boundary extends from Koitlah Point due north

to the United States/Canada international boundary seaward to the 100

fathom isobath. The seaward boundary of the Sanctuary approximates the

100 fathom isobath in a southerly direction from the U.S./Canada

international boundary to a point due west of the Copalis River,

cutting across the heads of Nitnat, Juan de Fuca, and Quinault Canyons.

The shoreward boundary of the Sanctuary is the mean lower low water

line when adjacent to Indian reservations and State and county lands.

When adjacent to Federally managed lands, the coastal boundary extends

to the mean higher high water line. The coastal boundary cuts across

the mouths of all rivers and streams. The precise boundary of the

Sanctuary is set forth in Appendix A of this Designation Document.

Article III. Characteristics of the Sanctuary Area That Give It

Particular Value

The Sanctuary is a highly productive, nearly pristine ocean and

coastal environment that is important to the continued survival of

several ecologically and commercially important species of fish,

seabirds, and marine mammals. Its rugged and undeveloped coastline

makes the region one of the more dramatic natural wonders of the

coastal United States, paralleling the majestic splendor of such

terrestrial counterparts as Yosemite National Park and the Grand

Tetons. The region's high biological productivity is fueled by seasonal

enhanced upwelling along the edge of the continental shelf, especially

at submarine canyons, during periods of high solar radiation.

The diversity of habitats that make up the Sanctuary support a

great variety of biological communities. This unusually large range of

habitat types include: Offshore islands and rocks; some of the most

diverse kelp beds in the world; intertidal pools; erosional features

such as rocky headlands, seastacks, and arches; interspersed exposed

beaches and protected bays; submarine canyons and ridges; the

continental shelf, including a broad shallow plateau extending from the

mouth of the Juan de Fuca canyon; and continental slope environments.

The numerous seastacks and rocky outcrops along the Sanctuary

shoreline, coupled with a large tidal range and wave splash zone,

support some of the most diverse and complex intertidal zones in the

United States.

The Sanctuary provides an essential habitat for a wide variety of

marine mammals and birds, and is of particular interest due to the

presence of endangered and threatened species that live or migrate

through the region. Twenty seven species of marine mammals are reported

to breed, rest within, or migrate offshore of the Olympic Peninsula. Of

particular interest is the migration route of the endangered California

gray whale, the threatened northern sea lion, the occasional presence

of the endangered right, fin, sei, blue, humpback, and sperm whales,

and the reintroduced resident population of sea otters.

In addition, the seabird colonies of Washington's outer coast are

among the largest in the continental United States and include a number

of species listed as endangered or threatened including the short-

tailed albatross, peregrine falcon, brown pelican, Aleutian Canada

goose, marbled murrelet, and one of the largest populations of bald

eagles in the continental United States.

The high biological productivity of the coastal and offshore waters

in the Sanctuary support valuable fisheries that contribute

significantly to the State and tribal economies. The commercially

important species of fish include five species of salmon, groundfish,

and shellfish.

In addition to the Sanctuary's value with respect to its biological

resources, the region encompasses significant historical resources

including Indian village sites, ancient canoe runs, petroglyphs, Indian

artifacts, and numerous shipwrecks.

The diversity and richness of marine resources suggests that the

marine sanctuary designations will provide exceptional opportunities

for scientific research in the areas of species interactions,

population dynamics, physiological ecology, linkages between

terrestrial and aquatic ecosystems, and marine anthropology. The

scientific research encouraged by the Sanctuary management plan will,

in turn, help support an intensive public education and awareness

program that will address the diverse, complex, and sensitive

ecosystems in Washington's coastal and oceanic environments.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation

The following activities are subject to regulation, including

prohibition, to the extent necessary and reasonable to ensure the

protection and management of the conservation, ecological,

recreational, research, educational, historical and aesthetic resources

and 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 solid matter of commercial

value) within the Sanctuary;

b. Discharging or depositing from within the boundary of the

Sanctuary, any material or other matter;

c. Discharging or depositing, from beyond the boundary of the

Sanctuary, any material or other matter;

d. Taking, removing, moving, catching, collecting, harvesting,

feeding, injuring, destroying or causing the loss of, or attempting to

take, remove, move, catch, collect, harvest, feed, injure, destroy or

cause the loss of, a marine mammal, sea turtle, seabird, historical

resource or other Sanctuary resource;

e. Drilling into, dredging, or otherwise altering the seabed of the

Sanctuary; or constructing, placing, or abandoning any structure,

material or other matter on the seabed of the Sanctuary;

f. Possessing within the Sanctuary a Sanctuary resource or any

other resource, regardless of where taken, removed, moved, caught,

collected or harvested, that, if it had been found within the

Sanctuary, would be a Sanctuary resource;

g. Flying a motorized aircraft above the Sanctuary;

h. Operating a vessel (i.e., watercraft of any description in the

Sanctuary;

i. Interfacing with, obstructing, delaying or preventing an

investigation, search, seizure or disposition of seized property in

connection with enforcement of the Act or any regulation or permit

issued under the Act.

Section 2. Emergencies

Where necessary to prevent or minimize the destruction of, loss of,

or injury to a Sanctuary resource or quality, or minimize the imminent

risk of such destruction, loss or injury, any and all activities,

including those not listed in Section 1 of this Article, 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 Act, 16 U.S.C. 1434(c)(1), no

valid lease, permit, license, or other authorization issued by any

Federal, State, or local authority of competent jurisdiction, or any

right of subsistence use of access, may be terminated by the Secretary

of Commerce or designee as a result 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) Exploration for, development 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)(2) 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); (3) the disposal of

dredged material within the Sanctuary other than in connection with

beach nourishment projects related to harbor maintenance activities; or

(4) bombing activities within the Sanctuary. Any purported

authorizations issued by other authorities after the effective date of

Sanctuary designation for any of these activities within the Sanctuary

shall be invalid.

Article VI. Alteration of This Designation

The terms of designation, as defined under Section 304(a) of the

Act, may be modified only by the same procedures by which the original

designation is made, including public hearings consultation with

interested Federal, State, and local agencies, review by the

appropriate Congressional committees and the Governor of the State of

Washington, and approval by the Secretary of Commerce or designee.

Appendix A.--Olympic Coast National Marine Sanctuary Boundary

Coordinates.

[Based on North American Datum of 1983]

------------------------------------------------------------------------

2500 square nautical miles

Point -------------------------------

Latitude Longitude

------------------------------------------------------------------------

1....................................... 47 deg.07'45'' 124 deg.11'02'

'

2....................................... 47 deg.07'45'' 124 deg.58'12'

'

3....................................... 47 deg.35'50'' 125 deg.00'00'

'

4....................................... 47 deg.40'05'' 125 deg.04'44'

'

5....................................... 47 deg.50'01'' 125 deg.05'42'

'

6....................................... 47 deg.57'13'' 125 deg.29'13'

'

7....................................... 48 deg.07'33'' 125 deg.38'20'

'

8....................................... 48 deg.14'46'' 125 deg.40'59'

'

9....................................... 48 deg.20'12'' 125 deg.22'59'

'

10...................................... 48 deg.27'49'' 125 deg.06'04'

'

11...................................... 48 deg.29'59'' 124 deg.59'13'

'

12...................................... 48 deg.30'19'' 124 deg.50'42'

'

13...................................... 48 deg.29'38'' 124 deg.43'41'

'

14...................................... 48 deg.27'50'' 124 deg.38'13'

'

15...................................... 48 deg.23'17'' 124 deg.38'13'

'

------------------------------------------------------------------------

III. Summary of Final Management Plan

The FEIS/MP for the Olympic Coast National Marine Sanctuary sets

forth the Sanctuary's location and provides details on the most

important resources and uses of the Sanctuary. The FEIS/MP describes

the resources and uses of the Sanctuary. The FEIS/MP describes the

resource protection, research, education and interpretive programs, and

establishes goals and objectives to be accomplished by each program.

The FEIS/MP includes a detailed discussion, by program area, of agency

roles and responsibilities.

The goals and objectives for the Sanctuary are:

Resource Protection

The highest priority management goal is to protect the marine

environment, resources and qualities of the Sanctuary. The specific

objectives of protection efforts are to:

(1) Coordinate policies and procedures among agencies sharing

responsibility for protection and management of resources;

(2) Encourage participation by interested agencies and

organizations in the development of procedures to address specific

management concerns (e.g., monitoring and emergency-response programs);

(3) Develop an effective and coordinated program for the

enforcement of Sanctuary regulations;

(4) Enforce Sanctuary regulations in addition to other regulations

already in place;

(5) Promote public awareness of, and voluntary compliance with,

Sanctuary regulations and objectives, through an educational/

interpretive program stressing resource sensitivity and wise use;

(6) Ensure that the water quality of the coastal and ocean waters

off the Olympic Peninsula is maintained at a level consonant with

Sanctuary designation;

(7) Establish mechanisms for coordination among all the agencies

participating in Sanctuary management;

(8) Ensure that the appropriate management agencies incorporate

research results and scientific data into effective resource protection

strategies; and

(9) Reduce threats to Sanctuary resources and qualities.

Research Program

Effective management of the Sanctuary requires the implementation

of a Sanctuary research program. The purpose of Sanctuary research

activities is to improve understanding of the marine environment off

the Olympic peninsula, its resources and qualities, and to resolve

specific management problems, some of which may involve resources

common to both the marine and upland freshwater environments. Research

results will be used in interpretive programs for visitors, for those

living on the Peninsula, and working adjacent to or in the Sanctuary,

others interested in the Sanctuary, as well as for protection and

management of resources and qualities.

Specific objectives of the research program are to:

(1) Establish a framework and procedures for administering research

to ensure that research projects are responsive to management concerns

and that results contribute to improve management of the Sanctuary;

(2) Incorporate research results into the interpretive/education

program in a format useful for the general public;

(3) Focus and coordinate data collection efforts on the physical,

chemical, geological and biological oceanography of the Sanctuary;

(4) Encourage studies that integrate research from the variety of

coastal habitats with nearshore and open ocean processes;

(5) Initiate a monitoring program to assess environmental changes

as they occur due to natural and human processes;

(6) Identify the range of effects on the environment that would

result from predicted changes in human activity or natural phenomena;

and

(7) Encourage information exchange among all the organizations and

agencies undertaking management-related research in the Sanctuary to

promote more informed management.

Education Program

The goal for the education program is to improve public awareness

and understanding of the significance of the Sanctuary resources and

qualities to foster a heightened sense of stewardship for Sanctuary

resources and qualities.

The management objectives designed to meet this goal are to:

(1) Provide the public with information on the Sanctuary and its

goals and objectives, with an emphasis on the need to use Sanctuary

resources and qualities wisely to ensure their long-term viability;

(2) Broaden support for the Sanctuary management by offering

programs suited to visitors with a range of diverse interests;

(3) Foster public involvement by encouraging feedback on the

effectiveness of education programs, collaboration with Sanctuary

management staff in extension and outreach programs, and participation

in other volunteer programs; and

(4) Collaborate with other organizations to provide educational

services complementary to the Sanctuary program.

Visitor Use

The Sanctuary goal for visitor management is to facilitate, to the

extent compatible with the primary objective of resource protection,

public and private uses of the resources of the Sanctuary not

prohibited pursuant to other authorities.

Specific management objectives are to:

(1) Provide relevant information about Sanctuary regulations, use

policies and standards;

(2) Collaborate with public and private organizations in promoting

compatible uses of the Sanctuary;

(3) Encourage the public who use the Sanctuary to respect sensitive

Sanctuary resources and qualities; and

(4) Monitor and assess the levels of use to identify and control

potential degradation of resources and qualities and minimize potential

user conflicts.

The Sanctuary headquarters will be located in Port Angeles, WA with

an initial satellite office near Forks, WA.

IV. Summary of Regulations

The regulations set forth the boundary of the Sanctuary; prohibit a

relatively narrow range of activities; set forth procedures for

applying for national marine sanctuary permits to conduct prohibited

activities; set forth certification procedures for existing leases,

licenses, permits, other authorizations or rights authorizing the

conduct of a prohibited activity; set forth notification and review

procedures for applications for licenses, permits, or other

authorizations to conduct a prohibited activity; set forth the maximum

per-day penalties for violating Sanctuary regulations; and set forth

procedures for administrative appeals.

The regulations are codified in part 925 of title 15, Code of

Federal Regulations.

Section 925.1 sets forth as the purpose of the regulations to

implement the designation of the Olympic Coast National Marine

Sanctuary by regulating activities affecting the Sanctuary consistent

with the terms of that designation in order to protect and manage the

conservation, ecological, recreational, research, educational,

historical and aesthetic resources and qualities of the area.

Section 925.2 and Appendix A following Sec. 925.12 set forth the

boundary of the Sanctuary.

Section 925.3 defines various terms used in the regulations. Other

terms appearing in the regulations are defined at 15 CFR 922.2 and/or

in the MPRSA.

Section 925.4 allows all activities except those prohibited by

Sec. 925.5 to be undertaken subject to the requirements of any

emergency regulation promulgated pursuant to Sec. 925.6, subject to all

prohibitions, restrictions and conditions validly imposed by any other

authority of competent jurisdiction, and subject to the liability

established by Section 312 of the Act.

Section 925.5 prohibits a variety of activities and thus makes it

unlawful for any person to conduct them or cause them to be conducted.

However, any of the prohibited activities except for:

(1) The exploration for, development or production of oil, gas or

minerals in the Sanctuary;

(2) The discharge of primary-treated sewage within the Sanctuary

(except pursuant to certification under Sec. 925.10, of a valid

authorization in existence on the effective date of Sanctuary

designation and issued by other authorities of competent jurisdiction);

(3) The disposal of dredged material within the Sanctuary other

than in connection with beach nourishment projects related to harbor

maintenance activities; and

(4) Bombing activities within the Sanctuary could be conducted

lawfully if:

(1) The activity is necessary to respond to an emergency

threatening life, property, or the environment (not applicable to the

prohibitions against takings and interference with law enforcement);

necessary for valid law enforcement purposes; authorized by a National

Marine Sanctuary permit issued under Sec. 925.9 (not applicable to the

prohibition against interference with law enforcement); or authorized

by a Special Use Permit issued under Section 310 of the Act (not

applicable to the prohibition against interference with law

enforcement);

(2) With regard to Department of Defense activities: (A) the

activity is an existing military activity including hull integrity

tests and other deep water tests; live firing of guns, missiles,

torpedoes, and chaff; activities associated with the Quinault Range

including the in-water testing of non-explosive torpedoes; and anti-

submarine warfare operations, or (B) the activity is a new activity and

exempted by the Director of the Office of Ocean and Coastal Resource

Management or designee after consultation between the Director or

designee and the Department of Defense. The regulations require that

the Department of Defense carry out its activities in a manner that

avoids to the maximum extent practicable any adverse impact on

Sanctuary resources and qualities and that it, in the event of

threatened or actual destruction of, loss of, or injury to a Sanctuary

resource or quality resulting from an untoward incident, including but

not limited to spills and groundings, caused by it, promptly coordinate

with the Director or designee for the purpose of taking appropriate

actions to respond to and mitigate the harm and, if possible, restore

or replace the Sanctuary resource or quality. The final regulation

regarding Department of Defense activities differs from the proposed

regulation principally by prohibiting all bombing activities within the

Sanctuary;

(3) The activity is authorized by a certification by the Director

of the Office of Ocean and Coastal Resource Management or designee

under Sec. 924.10 of a valid lease, permit, license or other

authorization issued by any Federal, State or local authority of

competent jurisdiction and in existence on (or conducted pursuant to

any valid right of subsistence use or access in existence on) the

effective date of this designation, subject to complying with any terms

and conditions imposed by the Director or designee as he or she deems

necessary to achieve the purposes for which the Sanctuary was

designated, except that treaty rights of a Federally recognized Indian

tribe may be exercised by the tribe without certification by the

Director or designee;

(4) The activity is authorized by a valid lease, permit, license,

or other authorization issued by any Federal, State or local authority

of competent jurisdiction after the effective date of Sanctuary

designation, provided that the Director of the Office of Ocean and

Coastal Resource Management or designee was notified of the application

in accordance with the requirements of Sec. 925.11, the applicant

complies with the requirements of Sec. 925.11, the Director or designee

notifies the applicant and authorizing agency that he or she does not

object to issuance of the authorization, and the applicant complies

with any terms and conditions the Director or designee deems necessary

to protect Sanctuary resources and qualities.

The first activity prohibited is exploring for, developing or

producing oil, gas or minerals within the Sanctuary. With regard to oil

and gas, this regulation implements the requirements of Section 2207 of

the Oceans Act of 1992 which prohibits ``oil or gas leasing or pre-

leasing activity [from being] conducted within the area designated as

the Olympic Coast National Marine Sanctuary * * *.'' The resources and

qualities of the coastal and offshore waters of the Olympic Peninsula,

particularly the sea birds and pinnipeds that use the haul-out sites,

kelp forests and rocks along the Olympic Coast, and the high water

quality of the area, are especially vulnerable to oil and gas

activities in the area. A prohibition on oil and gas exploration,

development and production activities within the Sanctuary boundary

partially protects Sanctuary resources and qualities from oil and gas

activities. Only partial protection will be provided due to the

remaining threat from oil and gas from vessel traffic transiting

through and near the Sanctuary, particularly oil tankers not operating

in accordance with the voluntary agreement of the Western States

Petroleum Association to remain 50 nautical miles from shore. A

prohibition on mineral activities within the Sanctuary is consistent

with the prohibition on alteration of or construction on the seabed as

discussed below. ``Mineral'' is defined to mean clay, stone, sand,

gravel, metalliferous ore, nonmetalliferous ore, or any other solid

material or other solid matter of commercial value. The prohibition on

oil, gas and mineral activities additionally will prevent the negative

effects of physical and possible chemical disturbances associated with

extraction activities, e.g., destruction of benthic biota; resuspension

of fine sediments; interference with filtering, feeding and respiratory

functions of marine organisms; loss of food sources and habitats; and

lowered photosynthesis and oxygen levels.

The second activity prohibited is depositing or discharging from

within the boundary of the Sanctuary any material or other matter

except:

(1) Fish, fish parts, chumming materials or bait used in or

resulting from traditional fishing operations in the Sanctuary;

(2) Biodegradable effluent incidental to vessel use and generated

by marine sanitation devices approved in accordance with Section 312 of

the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C.

1322 et seq.;

(3) Water generated by routine vessel operations (e.g., cooling

water, deck wash down and graywater as defined by Section 312 of the

FWPCA) excluding oily-wastes from bilge pumping;

(4) Engine exhaust; and

(5) Dredge spoil in connection with beach nourishment projects

related to harbor maintenance activities.

This prohibition is necessary to protect Sanctuary resources and

qualities from the effects of pollutants deposited or discharged into

the Sanctuary.

After expiration of current permits, discharges from municipal

treatment plants will be subject to the review process of Sec. 925.11.

At a minimum, secondary treatment will be required. Depending on the

risk to Sanctuary resources and qualities, greater treatment may be

required. The intent of this prohibition is to protect Sanctuary

resources and qualities from the effects of land and sea originating

pollutants.

The third activity prohibited is depositing or discharging, from

beyond the boundary of the Sanctuary, any material or other matter that

subsequently enters the Sanctuary and injures a Sanctuary resource or

quality, except for the five exclusions discussed above for the second

prohibited activity.

The fourth activity prohibited is moving, removing or injuring or

attempting to move, remove or injure a Sanctuary historical resource.

Historical resources in the marine environment are fragile, finite and

non-renewable. This prohibition is designed to protect these resources

so that they may be researched and information about their contents and

type made available for the benefit of the public. This prohibition

does not apply to moving, removing or injury resulting incidentally

from traditional fishing operations.

Historical resources located within the Sanctuary that are of

significance to an Indian tribe(s) (e.g., submerged Indian villages)

will be managed so as to protect other Sanctuary resources and the

interests of the governing body of an Indian tribe(s) in such

historical resources. If an Indian tribe determines that a historical

resource of tribal significance may be researched, excavated or

salvaged, the Sanctuary manager may issue a Sanctuary permit if the

criteria for issuance have been met (See Sec. 925.9). Removal or

attempted removal of any Indian cultural resource or artifact may only

occur with the express written consent of the governing body of the

tribe or tribes to which such resource or artifact pertains.

The fifth activity prohibited is drilling into, dredging or

otherwise altering the seabed of the Sanctuary; or constructing,

placing or abandoning any structure, material or other matter on the

seabed of the Sanctuary, except if any of the above results

incidentally from: (1) Anchoring vessels; (2) traditional fishing

operations; (3) installation of navigation aids; (4) harbor maintenance

in the areas necessarily associated with Federal Projects in existence

on the effective date of Sanctuary designation, including dredging of

entrance channels and harbors, and repair, replacement or

rehabilitation of breakwaters and jetties; (5) construction, repair,

replacement, enhancement or rehabilitation of boat launches, docks or

piers and associated breakwaters and jetties; or (6) beach nourishment

projects related to harbor maintenance activities. Federal projects are

any water resources development projects conducted by the U.S. Army

Corps of Engineers or operating under a permit or authorization issued

by the Corps of Engineers and authorized by Federal law.

The intent of this prohibition is to protect the resources and

qualities of the Sanctuary from the harmful effects of activities such

as, but not limited to, archaeological excavations, drilling into the

seabed, strip mining, laying of pipelines and outfalls, and offshore

commercial development, which may disrupt and/or destroy sensitive

marine benthic habitats, such as kelp beds, invertebrate populations,

fish habitats and estuaries.

The sixth activity prohibited is taking marine mammals, sea turtles

or seabirds in or above the Sanctuary, except as authorized by NMFS or

USFWS under the authority of the Marine Mammal Protection Act, as

amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as

amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty

Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to a treaty

with an Indian tribe to which the United States is a party, provided

that the treaty right is exercised in accordance with the MMPA, ESA and

MBTA, to the extent that they apply. The term ``taking'' includes all

forms of harassment. The MMPA, ESA and MBTA prohibit the taking of

species protected under those acts. The prohibition overlaps with the

MMPA, ESA and MBTA but also extends protection for Sanctuary resources

on an environmentally holistic basis and provides a greater deterrent

with civil penalties of up to $100,000 per taking. The prohibition

covers all marine mammals, sea turtles and seab

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