National Marine Sanctuaries Permits and Consultations

USGC Training – Oakland, CAJune 4, 2014

Vicki WedellNational Coordinator for Permitting, Consultations and NEPA

Office of National Marine Sanctuaries

Overview

• National Marine Sanctuaries

• US Coast Guard Actions

• 3 Forms of Approval– General permits– Authorizations– Special use permits

• Sanctuary Consultation – NMSA 304(d)

National Marine Sanctuaries

“Areas of the marine environment with special conservation, recreational, ecological, historical,

cultural, archeological, or esthetic qualities…” (NMSA Sec. 301)

National Marine Sanctuaries Act

• Primary purpose is resource protection.

• Comprehensive management of uses of the National Marine Sanctuary System

• Regulations, permitting, enforcement, research, monitoring, education and outreach.

US Coast Guard Actions• Marine event permits• Construction• Aids to Navigation• Updates to Area Contingency Plans• Emergency response actions• Training – e.g., live fire exercises• Coast Guard regulations

– Vessel routing measures– Ballast water– Marine sanitation devices

ONMS – USCG Coordination

• Memorandum of Understanding– e.g., Olympic Coast NMS

• ONMS authorization of USCG permits

• ONMS superintendent’s permit

• Regulatory coordination

• Response actions

• Consultation inquiry

National Marine Sanctuary Forms of Approval

General Permits

• A general permit is required to conduct activities that are otherwise prohibited by sanctuary regulations (15 CFR Part 922).

• Prohibitions are sanctuary-specific, but commonly include: – disturbance of submerged lands– discharges.

Permit Criteria and Procedures

• Regulations establish categories of sanctuary general permits.– e.g., research, education, and management

• Regulations also establish permit review criteria and procedures.

• Permit application review primarily occurs at sanctuary.

Authorizations• Six sanctuaries currently have this approval

authority in ONMS regulations.

• To allow otherwise prohibited activities.

• Nexus to other federal, state, or local permits, licenses, authorizations, leases, or approvals.– FKNMS authorize USCG marine event permit for

temporary buoy placement.

Authorizations

• Review of requests for authorizations primarily occurs at sanctuary.

• Consider regulatory permit review criteria.

• Can apply NMSA-specific terms and conditions.

ONMS Permit/Authorization Regulations Revision

• Proposed rule published Jan. 28, 2013

• Consolidates permit regulations into system-wide section.

• Updates permit categories and review criteria, among other things.

• Estimate final will be published Sept. 2014

Special Use Permit

NMSA section 310 grants the authority to issue an SUP to:

1.establish conditions of access to and use of any sanctuary resource or

2.promote public use and understanding of a sanctuary resource.

Activity can not injure sanctuary resources.

SUP Categories1. The placement and recovery of objects associated

with public or private events on non-living substrate of the submerged lands.

2. The placement and recovery of objects related to commercial filming.

3. The continued presence of commercial submarine cables on or within the submerged lands .

4. The disposal of cremated human remains.

5. Recreational diving near the USS Monitor.

6. Fireworks displays.

7. The operation of aircraft below the minimum altitude in restricted zones of national marine sanctuaries.

SUP Fees

1. Administrative costs

2. Implementation and monitoring costs

3. Fair market value

SUP fee guidance is currently being updated and will go out for public comment (estimated late summer 2014).

Sanctuary Permit Info on the Web

• For more information on sanctuary permits including FAQs, applications, and instructions, go to:

http://sanctuaries.noaa.gov/management/permits/welcome.html

Sanctuary Consultation:NMSA Section 304(d)

• Requires interagency consultation on federal actions “likely to destroy, cause the loss of, or injure a sanctuary resource.” (AKA “likely to injure”)

• “Actions” include direct federal actions and federal authorization of private activities through licenses, leases, or permits. Also includes actions external to sanctuary.

• Federal agencies are also required to consult on actions that “may affect” the resources of Stellwagen Bank National Marine Sanctuary.

Sanctuary Consultation Overview Document on the Web

• http://sanctuaries.noaa.gov/management/consultations/welcome.html

• General information/educational purposes only.

Basic Consultation Process

• Work collaboratively with ONMS staff.

• Engage at the earliest practicable time.

• Identify actions that require consultation.

• Consider less harmful alternatives.

• The first points of contact for questions are the appropriate sanctuary superintendent or me.

Three General Phases

Pre-Consultation• Who is required to consult?

– Federal agencies

• When is consultation required?– Likely to injure sanctuary resource– May affect resources in SBNMS

• What is a sanctuary resource statement?– Describes action and potential effects

Sanctuary Resource

“any living or nonliving resource of a national marine sanctuary that contributes to the conservation, recreational, ecological, historical, educational, cultural, archeological, scientific, or aesthetic value of the sanctuary” (NMSA; 16 U.S.C. § 1432(8))

Determining Injury

• Is likely to injure a sanctuary resource

• May affect a resource of the Stellwagen Bank NMS

• Injury must occur while sanctuary resources are inside the boundaries.

Definition of Injure

To “change adversely, either in the short or long term, a chemical, biological or physical attribute of, or the viability of. This includes, but is not limited to, to cause the loss of or destroy.” (15 CFR Part 922)

NMSA and MMPA “Injure”

• ONMS regulatory definition of “injure” is very broad compared to other statutes.

• Includes both behavioral harassment (Level B) and physical harm (Level A) as defined by MMPA.

• MOU under development with NMFS Marine Mammal Incidental Take Program.

Initiate Consultation

• Agency submits sanctuary resource statement

• Not necessarily a separate document– Could be included in an EA or

EIS

Sanctuary Resource Statement

• Purpose is to understand the activity and its potential impacts.– Description of the activity– Alternatives considered, including location

outside sanctuaries– Analysis of the impacts

Sanctuary Resource Statement

•Timeframe ~45 days– Submit at the earliest practicable time– But at least 45 days before the final

approval of the action– Unless agree to a different schedule

Consultation

• ONMS evaluation of resource statement

• Develop recommended alternatives– Location– Timing– Methods

Consultation

• Agency response to recommendations– Full or partial implementation– Complete rejection

• Written explanation describing rationale

Post-Consultation

• Monitoring the action

• Injured sanctuary resources– Prevent further damage– Develop and implement

mitigation measures– Restore or replace resources

Integrating Permitting and Consultations

• Regulations– Apply to everyone– Permits may be

required

• Consultations– Apply to federal

agencies

• Integrate processes

Exemption from Permit Requirements

• Regulatory exemptions from certain prohibitions

• Does not exempt from sanctuary consultation.

NEPA and Other Consultations

Environmental impacts

ESA listed species determination

Essential fish habitat (EFH) assessment

DEIS or

draft EA

Sanctuary resource statement

NEPA process

Agency decision

FEIS or EA

Record of Decision or

FONSI

Agency action

NMSA consultationNMS

alternatives

Magnuson-Stevens Act EFH consultation

EFH conservation

recommendations

ESA biological opinion

ESA Section 7 consultation

Comments on DEIS

Environmental impacts

ESA listed species determination

Essential fish habitat (EFH) assessment

DEIS or

draft EA

Sanctuary resource statement

NEPA process

Agency decision

FEIS or EA

Record of Decision or

FONSI

Agency action

NMSA consultationNMS

alternatives

Magnuson-Stevens Act EFH consultation

EFH conservation

recommendations

ESA biological opinion

ESA Section 7 consultation

Comments on DEIS

http://sanctuaries.noaa.gov

Vicki WedellNOAA Office of National Marine Sanctuaries

1305 East West Highway

Silver Spring, MD 20910

Phone: 301-713-3125 ext. 237

Email: Vicki.Wedell@noaa.gov

http://sanctuaries.noaa.gov