[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57127-57130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19502]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
National Marine Sanctuary Program Policy on Permit Applications
for Artificial Reef Development
AGENCY: National Marine Sanctuary Program (NMSP), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Commerce.
ACTION: Policy statement; response to comments.
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SUMMARY: The National Marine Sanctuary Program (NMSP) has developed a
final policy and permitting guidelines for applications to establish
artificial reefs within National Marine Sanctuaries. The NMSP is
releasing its final policy and permitting guidelines, and responding to
comments on the interim final policy.
DATES: This notice is effective as a final policy as of September 30,
2005.
ADDRESSES: You can download a copy of the final policy from the NMSP's
Web site at http://sanctuaries.nos.noaa.gov/library/library.html. You
may also request a copy of the NMSP's final policy on artificial reefs
and submit written comments on the policy by contacting John Armor,
National Marine Sanctuary Program, 1305 East West Highway (N/ORM6),
11th floor, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: John Armor at (301) 713-3125.
SUPPLEMENTARY INFORMATION:
Background
The National Marine Sanctuary Program (NMSP) manages a system of
thirteen National Marine Sanctuaries (NMSs or Sanctuaries) and the
Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve that protect
special, nationally significant areas of the marine environment under
the authority of the National Marine Sanctuaries Act (NMSA; 16 U.S.C.
1431 et seq.). Sanctuaries protect a variety of marine areas including
coral reefs, mangrove forests, and seagrass beds in the Florida Keys
National Marine Sanctuary; deep-sea canyons, kelp beds, and hardbottom
habitats in the Monterey Bay National Marine Sanctuary; and historic
shipwrecks in the Thunder Bay National Marine Sanctuary and Underwater
Preserve.
In the last few years the NMSP has experienced an increased number
of permit applications to establish artificial reefs inside NMS
boundaries, particularly in the Florida Keys National Marine Sanctuary.
Because NMSP regulations generally prohibit placing structures on
sanctuary submerged lands, any individual who wishes to establish an
artificial reef inside a NMS must first get approval from the NMSP
through the onsite sanctuary manager.
To ensure that applications to establish artificial reefs in
sanctuaries are reviewed consistently and in a manner that adheres to
the NMSA and NMSP regulations (15 CFR Part 922), the NMSP developed
permitting guidelines specific for such applications. The guidelines
build on lessons learned from past experience permitting artificial
reefs within sanctuaries and apply knowledge from other sources of
information. They are intended to guide decision makers as they review
proposals for artificial reefs in sanctuaries. They clarify how
decision making criteria contained in NMSP regulations will be applied
specifically to permit applications for artificial reef development.
Response to Comments
On July 18, 2003, NOAA published a notice of availability of the
NMSP's Artificial Reef Policy and Permitting Guidelines in the Federal
Register (68 FR 42690, Jul. 18, 2003). The policy and permitting
guidelines have been implemented on an interim-final basis since that
date. NOAA also requested comments on the policy and permitting
guidelines through September 16, 2003. The following are NOAA's
responses to the comments received.
Comment 1. Many commenters felt that the policy prohibited or was
overly restrictive of artificial reef development within national
marine sanctuaries.
Response: NOAA disagrees. The NMSP's regulations prohibit
artificial reef development in NMSs by prohibiting the placement of
structures on the submerged lands. This policy creates a framework to
allow artificial reefs under specific conditions (i.e., when a project
is expected to benefit NMS management and would not have a detrimental
effect on NMS resources). The policy applies higher standards of
resource protection to artificial reef projects within NMSs than would
apply to projects outside NMSs or other protected areas. More
protective requirements are appropriate given the nature and purpose of
the NMSs.
Comment 2. Several commenters suggested expanding the policy or
definition of artificial reefs to address specific issues, such as
coral reef restoration and reef balls.
Response: The primary purpose of the policy is to guide decision
making related to placement of artificial reefs within the Sanctuary
System. The policy is intended to apply to all types of artificial reef
projects, and not to direct the policy to a specific type of artificial
reef. The policy appropriately and specifically excludes natural reef
restoration projects from application of this policy because such
projects are addressed by the NMSP in a much different manner.
Comment 3. A few commenters felt that artificial reefs should not
be placed in sanctuaries under any circumstances.
Response: See response to comment number 1.
Comment 4. A few commenters stated that all or part of the policy
conflicted with the National Fishing Enhancement Act of 1984 (NFEA).
Response: NOAA disagrees. While the NFEA encourages artificial reef
development it does not, under any circumstance, require their use. Any
regulatory or statutory requirement that prohibits or imposes more
restrictive requirements on artificial reef development is not in
direct conflict with that statute. The NMSP's artificial reef policy is
written pursuant to the NMSA and the regulations promulgated
thereunder. Because the primary objective of the NMSA is resource
protection, it is entirely appropriate that the NMSP's policy be more
protective than the policy applicable to non-sanctuary waters under the
NFEA.
Comment 5. Some commenters felt that the NMSP's policy imposes more
burdens on an applicant than the requirements of the National
Artificial Reef Plan (NARP).
Response: NOAA agrees. The policy does exceed the requirements of
the NARP in several respects including the types of monitoring and
insurance required. As discussed in the response to comment number 4,
these more stringent requirements are consistent with the purposes and
policies of the NMSA and are appropriate for NMSs.
Comment 6. One commenter suggested that the section on the
definition of an artificial reef should refer to applying the policy to
oil rigs and existing structures that may end up being used as
artificial reefs in the future.
[[Page 57128]]
Response: NOAA does not feel abandoning existing oil rigs would
qualify as artificia1 reef development within a NMS as it is defined in
the NMSP policy, because the policy is not meant to address the
abandonment of existing structures inside NMSs. If presented with an
application to abandon an oil rig inside a NMS, the NMSP would use
certain aspects of its artificial reef policy during its review of such
a proposal, if appropriate.
Comment 7. Several commenters provided information about artificial
reefs they felt should be included or in some manner referenced in the
policy.
Response: NOAA appreciates the additional information provided by
some commenters. However, none of it necessitated changes in the
procedures for reviewing permit applications for artificial reef
development in NMSs.
Comment 8. One commenter asked if a complete proposal submitted to
the NMSP would have to include a U.S. Army Corps of Engineers (ACOE) or
relevant state permits. The commenter also asked if the NMSP would
review and approve a proposal before those permits are obtained.
Response: NOAA will begin reviewing permit applications to
establish artificial reefs inside NMSs prior to the issuance of an ACOE
or required state permit. During this review period, the NMSP will
confer with all tribal, local, State, and Federal agencies with
jurisdiction. The NMSP will not take final action on any such permit
until it understands the positions of all relevant agencies. Nothing in
the policy or in the NMSP regulations, however, precludes the NMSP from
issuing its permit prior to the permittee receiving other required
permits.
Comment 9. One commenter requested that the diagram illustrating
the review process indicate that public review of the application would
occur before a decision would be made.
Response: The public review process is sufficiently represented in
the National Environmental Policy act process on the diagram. As stated
in section 2.4.1 of the policy (page 15), the NMSP will prepare a draft
environmental assessment or impact statement and will release the
document for public comment prior to making a final decision on the
application.
Comment 10. One commenter requested an independent assessment,
inspection, or certification of material proposed to be used in
artificial reef development to ensure contaminant risk has been
adequately researched and minimized.
Response: NOAA agrees that these types of assessments are
appropriate, particularly for artificial reef projects using an
obsolete vessel as the material. The Environmental Protection Agency
and/or United States Coast Guard inspect and certify vessels proposed
to be deployed as artificial reefs. However, such an assessment might
not be necessary for artificial reef projects using other types of
material. Therefore, NOAA does not feel independent inspection will be
necessary in all cases.
Comment 11. One commenter wanted an independent assessment of the
deployment and stabilization plan for each permit.
Response: The NMS manager or superintendent and other NMSP staff
will review every permit application (including the deployment and
stabilization plans) for artificial reef development within NMS
boundaries. The NMSP's assessment is independent of the permit
applicant's. In some cases NMSP may obtain outside expertise to assist
in its assessment.
Comment 12. One commenter felt that the NMSP should not put itself
in a sponsorship or permittee role for any artificial reef project.
Response: As a permitting agency, the NMSP will not sponsor any
artificial reef project for which it is processing a permit application
or expects to receive a permit application in the future. The NMSP will
also not co-apply for any such permit.
Comment 13. One commenter wanted clarification as to why NOAA would
consider an applicant eligible for a permit and allow him/her to go
through the effort of submitting a proposal, knowing that NOAA was not
going to approve the request?
Response: The NMSP's permitting process does not prevent an
applicant from submitting an application to conduct activities within
sanctuaries. After receiving and reviewing an application, the NMSP
will decide whether or not to approve the activity. Based on the
nature, scope, and complexity of the proposal, the review process and
need for additional information may vary. In some cases, it may be
possible for the NMSP to dismiss an application without asking for
additional information from the applicant. In others, the NMSP may need
this additional information to make a final determination.
Comment 14. One commenter stated that NMSP should require copies of
data and reports, and that the projects should make management
recommendations with justifications.
Response: The NMSP has monitoring and reporting components
described within the policy. The NMSP will assess results and make
adjustments to management practices when warranted by information
obtained from the monitoring reports.
Comment 15. One commenter felt that the policy should allow for
involvement of all stakeholders and that it should not have special
provisions for Native American tribes.
Response: Special provisions related to Native American Tribes are
warranted in circumstances such as when tribal treaty rights or NMSP
regulations provide involvement of tribes in permit decisionmaking. In
general this only applies to the Olympic Coast National Marine
Sanctuary but will be considered on a case-by-case basis for other
NMSs.
Comment 16. One commenter was concerned that the section in the
policy on ``Authorizations'' was the weakest. They felt the process
described in this section was a means to circumvent requirements of
NMSA and that proposals should still be held to the same regulations,
including enhancing resources.
Response: The NMSP reviews artificial reef projects with the same
level of scrutiny, whether they are being considered under
authorizations or other forms of approval.
Comment 17. One commenter did not agree with the five-year duration
for special use permits.
Response: The five-year duration for special use permits is
mandated by the NMSA. When a special use permit is issued, the permit
cannot be issued for a period longer than five years, but may be
renewed.
Comment 18. One commenter wanted clarification on what type of
monitoring NOAA was referring to in the section of the policy that
describes evaluating the effects of a project.
Response: NOAA was referring to all forms of monitoring required
under a permit and described in section 2.2.2 (page 10) of the policy.
Comment 19. One commenter questioned why NOAA was requiring the
permittee to prove that there are funds available to remove the reef if
something goes wrong.
Response: NOAA was primarily referring to problems encountered
during installation. In the event of a problem, NOAA must be certain
the applicant has funds to ensure there will be no damage to NMS
resources, which may include removal of the artificial reef.
Additionally, should pieces separate from the main structure of the
artificial reef, NOAA may require the permittee to remove them from the
Sanctuary.
Comment 20. One commenter wanted to know if bonds would be
retroactive
[[Page 57129]]
to cover materials already in the Florida Keys NMS (FKNMS).
Response: Bonds will not be required retroactively for preexisting
materials within the Sanctuary.
Comment 21. One commenter wanted to know how long the NMSP
considered to be the life of a project.
Response: The duration of a project is as long as the artificial
reef is within the Sanctuary.
Comment 22. Some commenters felt that it is difficult to obtain a
bond for monitoring.
Response: A bond is not necessarily the only way to demonstrate
that an applicant has financial resources available. When discussing
the issue of obtaining a bond for monitoring purposes, the policy is
referring to the permittee providing some form of financial security.
If a bond is not a practical form of financial security, the permittee
may find another method. The policy has been revised to better express
this point.
Comment 23. One commenter expressed concerns about an artificial
reef releasing toxic materials or other pollutants into the water after
it is placed on the bottom. The commenter suggested that the policy
should address the issue more directly.
Response: The NMSP agrees artificial reefs placed inside NMSs must
not release into the water pollutants of any kind that have the
potential to adversely affect sanctuary resources. This issue is
discussed in Appendix B to the guidelines as an issue that the NMSP
should consider when reviewing applications to establish artificial
reefs. Furthermore, potential pollutants must be disclosed in the
permit application as specified in Appendix C. The NMSP will consult
with the Environmental Protection Agency to consider this information
and to assess the impacts it would have on sanctuary resources.
Comment 24: Several comments were received on how NOAA will
evaluate the effects of removal of an artificial reef.
Response: If an artificial reef is not permanent and NOAA requires
removal as part of the project, the effects of that removal process
will be evaluated before a permit is issued. NOAA may also conduct a
supplemental analysis immediately prior to removal of the artificial
reef to consider whether removal is inappropriate.
Comment 25. One commenter felt that Executive Order 13089 on Coral
Reef Protection should have been included in the NEPA Documentation and
Interagency Consultation section of the policy.
Response: The policy applies to all NMSs (most of which do not have
coral reef resources). Therefore, Executive Order 13089 will not apply
to every artificial reef proposal for every NMS. When the requirements
of Executive Order 13089 apply to a proposed artificial reef
development project, the NMSP will take the required steps to ensure
the Executive Order is followed.
Comment 26. One commenter thought that the NMSP should provide an
analysis of each alternative that the applicant is allowed to pursue
under the National Environmental Policy Act (NEPA).
Response: As indicated in Appendix C to the policy, a permit
application to establish an artificial reef in a NMS must include all
information necessary for the NMSP to prepare the appropriate NEPA
documentation. In determining the completeness of the permit
application, the NMSP will ensure the applicant has submitted
sufficient information to fully analyze the full range of reasonable
alternatives as required by NEPA and its implementing regulations.
Comment 27. One commenter pointed out that the NMSP does not have
to prepare and release a draft NEPA analysis document for public
comment for artificial reef projects that do not require the
preparation of an environmental impact statement.
Response: Section 5.02(b)(1) of NOAA Administrative Order 216-6
encourages NOAA programs to release a draft environmental assessment to
the public to the extent possible. NOAA realizes that this action is
not required under NEPA, but has determined that it is appropriate in
cases involving the establishment of artificial reefs in NMSs.
Comment 28. One commenter wanted the policy to recognize that
artificial reefs may be beneficial for Essential Fish Habitat (EFH).
Response: It is not the role of the NMSP to artificially create new
EFH (as defined in the Magnuson-Stevens Fishery Conservation and
Management Act). The NMSP, in consultation with NOAA Fisheries, will
consider the extent that any proposed artificial reef may adversely
affect EFH that naturally occurs in the vicinity of the project.
Comment 29. One commenter suggested that biological monitoring be
specifically included in the monitoring requirements.
Response: In general, some form of biological monitoring will
always be required although the exact monitoring requirements (e.g.,
parameters to be studied, frequency of data collection) will vary from
permit to permit.
Comment 30. One commenter felt that the monitoring of a reef and
the placement of a reef are separate projects and should have separate
proposals.
Response: NOAA disagrees. Monitoring is an integral part of
proposing to place an artificial reef within a NMS. A permittee should
not propose to establish an artificial reef inside a NMS unless they
are prepared to collect quantifiable monitoring data and have
sufficient resources to do so. As discussed in section 2.5.1.1. there
are several different types of monitoring that would be part of any
artificial reef project. Some will be designed to determine the
effectiveness of the artificial reef project in meeting goals and
providing benefits to the Sanctuary. Other forms of monitoring will be
designed to determine the effects of the project on the resources of
the Sanctuary.
Comment 31. One commenter did not agree with the discussion
regarding lifetime monitoring.
Response: Stability monitoring will be conducted as long as the
artificial reef is in NMS waters. Other forms of monitoring may vary in
length depending on the expected life of the project, the questions the
monitoring is designed to answer, and other factors.
Comment 32. Some commenters inquired as to what would happen if a
permittee were to withdraw from the permitting agreement. Inquiries
were also made on how permits will be enforced.
Response: Before the NMSP issues a permit, it must be satisfied
that the applicant has sufficient resources to comply with all permit
terms and conditions, including the funding of long-term monitoring.
The nature of this assurance will vary from permit to permit and is
detailed in the policy.
A permittee cannot unilaterally withdraw from a permit agreement
without violating the permit or NMSP regulations. If a permittee
violates a term or condition of his/her permit, the permittee is
subject to possible civil penalties under the NMSA.
Comment 33. Some comments questioned the types of building
materials that would be approved in a potential artificial reef permit.
Response: NOAA regulations do not currently discriminate among
materials. The policy gives guidance on which materials are better than
others. NOAA will consult with the United States Army Corps of
Engineers, Environmental Protection Agency, and relevant state agencies
on a case-by-case basis to ensure that hazardous materials are not
used. Compliance with a sanctuary permit does not necessarily
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relieve the permittee of his/her obligation to comply with all other
applicable Federal, State, and local laws.
Dated: September 23, 2005.
Richard W. Spinrad,
Assistant Administrator, Ocean Services and Coastal Zone Management,
National Oceanic and Atmospheric Administration.
[FR Doc. 05-19502 Filed 9-29-05; 8:45 am]
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