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APPENDIX
B: Existing Federal and State Authorities Relevant to Management
Jurisdiction
Introduction
Appendix
B presents an overview of the various Federal and State management
authorities which provide statutory responsibility for protecting
marine resources in the area of the proposed Stellwagen Bank
National Marine Sanctuary. The following discussion describes
relevant legislative mandates, and administrative measures taken
to implement those mandates.
Federal
Authorities
Federal
statutes vary greatly in scope and approach, ranging from broad-based
legislation addressing resource conservation and environmental
protection (such as the Magnuson Fishery Conservation and Management
Act), to regulation of specific activities and resources.
Magnuson
Fishery Conservation and Management Act (MFCMA), 16 U.S.C.
§ 1801 et seq.
The
MFCMA provides for the conservation and management of all fishery
resources between 3 and 200 nm (5.6 and 370 km) offshore. The
National Marine Fisheries Service (NMFS), NOAA, Department of
Commerce is charged with establishing guidelines for and approving
fishery management plans (FMPs) prepared by regional fishery
management councils for selected fisheries. These plans determine
the levels of commercial and sport fishing consistent with achieving
and maintaining the optimum yield of each fishery. The waters
of the study area are within the jurisdiction of the New England
Fishery Management Council (NEFMC).
Benthic
continental shelf fishery resources located outside state waters,
such as lobster and crabs, are subject to management under the
MFCMA. Within Federal waters the MFCMA is enforced by the U.S.
Coast Guard (USCG) and NMFS. The Act empowers the Secretary
of Commerce to enter into agreements with any State agency for
enforcement purposes in State waters. Such an agreement exists
between the CDFG and NMFS whereby both parties have been deputized
to enforce each other's laws. As a result, NEFMC fishery plan
enforcement personnel can now enforce State law within 3 nm
(5.6 km) and State officers can enforce Federal laws between
3 and 200 nm (5.6 and 370 km).
The
waters of the proposed Stellwagen Bank National Marine Sanctuary
are within the primary jurisdiction of the New England Regional
Fishery Management Council (NEFMC); some FMP's developed by
the Mid-Atlantic Fishery Management Council and the Atlantic
States Fishery Management Council are also applicable to fisheries
occurring within the proposed Sanctuary.
FMP's
are currently in place for: American lobster; Atlantic sea scallop;
northern shrimp; multi-species (covering cod, haddock, pollack,
redfish, yellowtail flounder, winter flounder, American plaice,
witch flounder, windowpane flounder, white hake, red hake, silver
hake, and ocean pout); Atlantic salmon; bluefish; summer flounder;
butterfish; squid; quahog; surf clam; and mackerel.
Atlantic
Tunas Convention Act of 1975 (16 USC § 971 et. seq.).
The
Atlantic Tunas Convention Act authorizes the Secretary of Commerce
to implement the recommendations of the International Commission
for the Conservation of Atlantic Tunas (ICCAT). This authority
has been delegated to the Assistant Administrator for Fisheries.
Established in 1969, the Convention is responsible for the management
of the Atlantic bluefin tuna (Thunnus thynnus)
in the Atlantic Ocean and adjacent seas. After national quotas
and other management measures are established by ICCAT, the
National Marine Fisheries Service establishes U.S. quotas and
regulations for commercial and recreational fishing.
Atlantic
Fisheries Act of 1942, as amended.
This
act authorized the creation of the Atlantic States Marine Fisheries
Commission. The Commission is composed of all Atlantic coastal
states, each represented by the head of the fisheries administrative
agency, a legislative appointee, and a governor's appointee,
The Commission provides a forum for discussion and resolution
of common fishery problems. Under Amendment I of its charter,
the states can develop joint management regulations for fishery
resources primarily in state waters and shared by one or more
states. Under contract from the NMFS, the Commission administers
the Federally-funded Interstate Fisheries Management Program.
Interstate fisheries management plans include northern shrimp,
lobster, striped bass, and summer flounder.
Endangered
Species Act (ESA), 16 U.S.C. §§ 1531-1543.
The
Federal Endangered Species program provides protection for listed
species of animals and plants in both State waters and the waters
beyond. The U.S. Fish and Wildlife Service (FWS) and NMFS determine
which species need protection and maintain a list of endangered
and threatened species. One of the most significant protections
provided by the Endangered Species Act is the prohibition on
taking. The term "take" is defined broadly to mean "harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or attempt to engage in any such conduct" (16 USC §1532(19)).
The FWS regulations define the term "harm" to mean an act which
actually kills or injures wildlife, including significant habitat
modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering. The regulations define
the term "harass" to mean "an intentional or negligent act or
omission which creates the likelihood of injury to wildlife
by annoying it to such an extent as to significantly disrupt
normal behavioral patterns which include, but are not limited
to, breeding, feeding or sheltering" (50 CFR 17.3).
The
Endangered Species Act also provides for the indirect protection
of endangered species and their habitats by establishing a consultation
process designed to insure that projects authorized, funded
or carried out by Federal agencies are not likely to jeopardize
the continued existence of endangered or threatened species,
or "result in the destruction or modification of habitat of
such species which is determined adverse... to be critical"
(16 USC §1536). Critical habitat areas for endangered species
are designated by the FWS and NMFS. The 1978 amendments to the
Act establish a Cabinet level committee authorized to exempt
Federal agencies (through an elaborate review process) from
compliance with their responsibilities with regard to the jeopardy
standard and critical habitat.
Several
endangered marine mammal species occur within the proposed Sanctuary
area, including: the humpback whale, fin whale, northern right
whale, sei whale, and blue whale. Listed species of marine reptiles
include: the leatherback sea turtle (E), loggerhead sea turtle
(T), Kemp's (or Atlantic) ridley sea turtle (E), and green sea
turtle (T). Marine mammals and marine reptiles listed under
the ESA are the responsibility of the National Marine Fisheries
Service. Listed species of birds occurring within the proposed
Sanctuary area are: the peregrine falcon (E), bald eagle (E),
roseate tern (E), and piping plover (T). These species are the
responsibility of the Fish and Wildlife Service.
Although
no critical habitat area occurring within the proposed Sanctuary
has been established for any of these species, the Right Whale
Recovery Team has petitioned the National Marine Fisheries Service
to establish critical habitat for the northern right whale in
waters incorporating part of the proposed Sanctuary (55 FR
28670, July 12, 1990).
Marine
Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361
et seq.
The
MMPA provides protection to marine mammals in both State waters
and the waters beyond. It is designed to protect all species
of marine mammals. As specified in the MMPA, the Department
of Interior, U.S. Fish and Wildlife Service (FWS), is responsible
for the management of polar bears, walrus (a pinniped), northern
and southern sea otters, three species of manatees, and dugong;
and Department of Commerce, National Marine Fisheries Service
(NMFS), is responsible for all other marine mammals. The Marine
Mammal Commission advises these implementing agencies and sponsors
relevant scientific research. The primary management features
of the Act include: 1) a moratorium on "taking" of marine mammals;
2) the development of a management approach designed to achieve
an "optimum sustainable population" (OSP) for all species or
population stocks of marine mammals; and 3) protection of populations
determined to be "depleted".
MMPA
defines "take" broadly to include "harass, hunt, capture, or
kill, or attempt to harass, hunt, capture, or kill any marine
mammal" (16 USC §1362(12)). The term "harass" has been
interpreted to encompass acts unintentionally adversely affecting
marine mammals, such as operation of motor boats in waters in
which these animals are found. The MMPA allows certain exceptions
to the moratorium. First, the Secretary may issue permits for
public display or scientific research. Second, the Secretary
may grant exemptions for takes of small numbers of marine mammals
incidental to other lawful activities. Third, the Secretary
may make a special waiver of the moratorium on taking for particular
species or populations of marine mammals provided that the species
or population being considered is at or above its determined
optimum sustainable population. No such waiver, however, has
been granted concerning any marine mammal found in the area
under consideration.
Marine
mammal species whose population is determined to be depleted
receive additional protection. Under only limited circumstances
may permits be issued for the taking of any marine mammal determined
to be depleted, including but not limited to scientific research
and enhancing the survival or recovery of a species or stock
of depleted species.
The
1988 amendments to the MMPA added requirements that observers
be carried aboard commercial fishing vessels to determine levels
of incidental take of marine mammals. Commercial fishing activities
are divided into categories on the basis of gear-type and associated
levels of potential incidental take of marine mammals. For example,
Category 1 vessels such as gillnetters may have to carry an
observer if requested by NMFS and the Secretary of Commerce
may place observers on vessels in Categories 2 and 3 with the
consent of the vessel owner. This observer program has been
in operation since early 1990 and although the authority for
its management is with the NMFS the day-to-day operational management
may be delegated to state and local authorities.
Marine
mammal species whose populations are determined to be "depleted"
receive additional protection under the MMPA. With the exception
of scientific research permits, no permits for taking depleted
species may be issued. Species occurring within the area of
the proposed Sanctuary which have been determined to be depleted
include the humpback whale, fin whale, northern right whale,
sei whale, and blue whale, based on their "endangered" status
under the Endangered Species Act.
Migratory
Bird Treaty Act (MBTA) (16 USC §703 et seq.)
The
essential provision of the Migratory Bird Treaty Act, which
implements conventions with Great Britain, Mexico, the USSR
and Japan makes it unlawful except as permitted by regulations
"to pursue, hunt, take, capture, kill... any migratory bird,
any part, nest or egg" or any product of any such bird protected
by the Convention (16 USC §703). The Secretary of the Interior
is charged with determining when, and to what extent, if at
all, and by what means to permit these activities. Each treaty
establishes a "closed season" during which no hunting is permitted.
A distinction is made between game and nongame birds. The closed
season for migratory birds other than game birds is year-round.
Clean
Water Act (CWA), 33 U.S.C. §§ 1251 et seq.
It
is the goal of the CWA to restore and maintain the chemical,
physical, and biological integrity of the nation's waters. To
varying degrees, navigable waters of the United States, the
contiguous zone, and the oceans beyond are subject to requirements
of the CWA.
The
CWA's chief mechanism for preventing and reducing water pollution
is the National Pollutant Discharge Elimination System (NPDES),
administered by the Environmental Protection Agency (EPA). Under
the NPDES program, a permit is required for the discharge of
any pollutant from a point source into the navigable waters
of the United States, the waters of the contiguous zone, or
ocean waters.
Since
oil and gas development pursuant to Federal lease sales occur
beyond State waters, an NPDES permit from EPA is required for
discharges associated with this activity. EPA generally grants
NPDES permits for offshore oil and gas developments based on
published effluent guidelines (40 CFR Part 435). Other conditions
beyond these guidelines may, however, be imposed by the Regional
Administrator on a case-by-case basis.
The
CWA prohibits the discharge of oil or hazardous substances in
quantities that may be harmful to the public health or welfare
or the environment, including but not limited to fish, shellfish,
wildlife, and public and private property, shorelines and beaches
into or upon the navigable waters of the U.S., adjoining shorelines,
or into or upon the waters of the contiguous zone, or in connection
with activities under the Outer Continental Shelf Lands Act
or the Deepwater Port Act of 1974, or which may affect natural
resources belonging to, appertaining to, or under the exclusive
management authority of the U.S., except, in the case of such
discharges into or upon the waters of the contiguous zone or
which may affect the above-mentioned natural resources, where
permitted under the Protocol of 1978 Relating to the International
Convention for the Prevention of Pollution from Ships.
When
harmful discharges do take place, the National Contingency Plan
(NCP) for the removal of oil and hazardous substance discharges
(40 CFR Part 300), which is designed to minimize the impacts
on marine resources, takes effect. The USCG, in cooperation
with EPA, administers the NCP. The NCP establishes the organizational
framework whereby oil and hazardous substance spills are to
be cleaned up. To carry out the NCP, regional plans have been
established; the USCG has issued such a plan for Federal Region
IX which encompasses the study area. Under the plan, Coast Guard
personnel are to investigate all reported offshore spills, notify
the party responsible (if known) of its obligation to clean
up the spill, and supervise the clean-up operation. The Coast
Guard retains final authority over the procedures and equipment
used in the cleanup. If the party responsible for the spill
does not promptly begin cleanup operations, the Coast Guard
may hire private organizations.
The
CWA also requires that publicly owned sewage treatment works
meet effluent limitations based on effluent reductions attainable
through the application of secondary treatment by July 1, 1977
[33 USC §1311(b)(1)]. EPA does have the authority, however,
to waive the July 1, 1977 deadline for secondary treatment for
discharges into marine waters under certain circumstances (33
USC §1311(h)). Due to the unusual depth of marine waters
off the California coast, some municipal sewage treatment works
in California discharging into marine waters have requested
waivers from secondary treatment requirements (43 F.R. 17484
(4/25/78)).
Permits
from the Army Corps of Engineers, (COE) which are based on EPA
guidelines, are required prior to the discharge of dredged or
fill materials into navigable waters that lie inside the baseline
from which the territorial sea (defined to be three nautical
miles of shore) is measured and fill materials into the territorial
sea (33 USC § 1344; 40 CFR 230.2).
Finally,
the CWA requires vessels to comply with marine sanitation regulations
issued by EPA and enforced by the USCG (33 USC § 1322).
Rivers
and Harbors Act of 1899 (RHA), 33 U.S.C. §§ 401
et seq.
Section
10 (33 USC 403) prohibits the unauthorized obstruction of navigable
waters of the United States. The construction of any structure
or any excavation or fill activity in the navigable waters of
the U.S. is prohibited without a permit from the COE. Section
13 (33 U.S.C. 407) prohibits the discharge of refuse into navigable
waters of the U.S., but has been largely superseded by the CWA,
discussed above.
Ports
and Waterways Safety Act (PWSA), 33 U.S.C. §§
1231 et seq.
The
Ports and Waterways Safety Act (PWSA), as amended by the Port
and Tanker Safety Act of 1978 ( and the Oil Pollution Act of
1990), is designed to promote navigation and vessel safety and
the protection of the marine environment. The PWSA applies both
in state waters and the waters beyond out to 200 nautical miles.
The
PWSA authorizes the U.S. Coast Guard to construct, operate,
maintain, improve or expand vessel traffic services and control
vessel traffic in ports, harbors, and other waters subject to
congested vessel traffic. The Oil Pollution Act of 1990 amends
the PWSA to mandate that the USCG "require appropriate vessels
which operate in the area of a vessel traffic service to utilize
or comply with that service."
In
addition to vessel traffic control, the U.S. Coast Guard regulates
other navigational and shipping activities. It has promulgated
numerous regulations relating to vessel design, construction,
and operation designed to minimize the likelihood of an accident
and reduce vessel source pollution.
The
1978 amendments of the PWSA establish a comprehensive program
for regulating the design, construction, operation, equipping,
and banning of all tankers using U.S. ports to transfer oil
and hazardous materials. These requirements are, for the most
part, in agreement with protocols (passed in 1978) to the International
Convention for the Prevention of Pollution from Ships, 1973,
and the International Convention on Safety of Life at Sea, 1974.
The
U.S. Coast Guard is also vested with the primary responsibility
for maintaining boater safety, including the tasks of conducting
routine vessel inspections and coordinating rescue operations.
Under
the PWSA, the Coast Guard establishes vessel traffic services
and systems for ports, harbors and other waters subject to congested
vessel traffic. Within the area of the proposed Sanctuary, a
vessel traffic separation scheme (VTSS) has been established
directly across Stellwagen Bank, to service the major port of
Boston. PWSA regulations also address vessel design, construction,
and operation, and are designed to reduce vessel accidents and
vessel source pollution.
Act
to Prevent Pollution from Ships (APPS), 33 U.S.C. §§
1901 et seq.
The
International Convention for the Prevention of Pollution of
the Sea by Oil, 1954, and the Oil Pollution Act of 1961 have
been superseded by the International Convention for the Prevention
of Pollution from Ships, 1973, as modified by the 1978 Protocol
relating thereto (MARPOL 73/78) and implemented by the Act to
Prevent Pollution from Ships, 1980, as amended in 1982, 1987
(APPS). APPS, in implementing Annex I of MARPOL 73/78, regulates
the discharge of oil and oily mixtures from seagoing ships,
including oil tankers. APPS, in implementing Annex II of MARPOL
73/78, regulates the discharge of noxious liquid substances
from seagoing ships. Enforcement of the Act is the responsibility
of the USCG.
When
more than 12 nautical miles from the nearest land, any discharge
of oil or oily mixtures into the sea from a ship subject to
APPS other than an oil tanker or from machinery space bilges
of an oil tanker subject to APPS is prohibited except when:
1) the oil or oily mixture does not originate from cargo pump
room bilges; 2) the oil or oily mixture is not mixed with oil
cargo residues; 3) the ship is not within a Special Area (the
study area is not a Special Area for purposes of APPS); 4) the
ship is proceeding en route; 5) the oil content of the effluent
without dilution is less than 100 parts per million (ppm); and
6) the ship has in operation oily-water separating equipment,
a bilge monitor, bilge alarm or combination thereof. 33 CFR
151.10(a).
The
restrictions on discharges 12 nautical miles or less from the
nearest land are more stringent. When within 12 nautical miles
of the nearest land, any discharge of oil or oily mixtures into
the sea from a ship other than an oil tanker or from machinery
space bilges of an oil tanker is prohibited except when: 1)
the oil or oily mixture does not originate from cargo pump room
bilges; 2) the oil or oily mixture is not mixed with oil cargo
residues; 3) the oil content of the effluent without dilution
does not exceed 15 ppm; 4) the ship has in operation oily-water
separating equipment, a bilge monitor, bilge alarm, or combination
thereof; and 5) the oily-water separating equipment is equipped
with a 15 ppm bilge alarm. NOTE: In the navigable waters of
the U.S., the CWA, section 311(b)(3) and 40 CFR 110 govern all
discharges of oil and oily mixtures. 33 CFR 151.10(b).
A
tank vessel subject to APPS may not discharge an oily mixture
into the sea from a cargo tank, slop tank or cargo pump bilge
unless the vessel: 1) is more than 50 nautical miles from the
nearest land; 2) is proceeding en route; 3) is discharging at
an instantaneous rate of oil content not exceeding 60 liters
per nautical mile; 4) is an existing vessel and the total quantity
of oil discharged into the sea does not exceed 1/15000 of the
total quantity of the cargo that the discharge formed a part
(1/30000 for new vessels); 5) discharges, with certain exceptions,
through the above waterline discharge point; 6) has in operation
a cargo monitor and control system that is designed for use
with the oily mixture being discharged; and 7) is outside the
Special Areas.
33
CFR 157.37.
APPS
is amended by the Marine Plastic Pollution Research and Control
Act of 1987 (MPPRCA), which implements Annex V of MARPOL 73/78
in the U.S. The MPPRCA and implementing regulations at 33 CFR
151.51 to 151.77 apply to U.S. Ships (except warships and ships
owned or operated by the U.S.) everywhere, including recreational
vessels, and to other ships subject to MARPOL 73/78 while in
the navigable waters or the Exclusive Economic Zone of the U.S.
They prohibit the discharge of plastic or garbage mixed with
plastic into any waters and the discharge of dunnage, lining
and packing materials that float within 25 nautical miles of
the nearest land. Other unground garbage may be discharged beyond
12 nautical miles from the nearest land. Other garbage ground
to less than one inch may be discharged beyond three nautical
miles of the nearest land. Fixed and floating platforms and
associated vessels are subject to more stringent restrictions.
"Garbage" is defined as all kinds of victual, domestic and operational
waste, excluding fresh fish and parts thereof, generated during
the normal operations of the ship and liable to be disposed
of continuously or periodically except dishwater, graywater
and certain substances. 33 CFR 151.05.
Oil
Pollution Act of 1990 (OPA) (P.L. 101-380, 33 USC 2701 et
seq.)
The
Oil Pollution Act of 1990 (OPA) creates a comprehensive prevention,
response, liability, and compensation regime for dealing with
vessel and facility-caused oil pollution. The OPA provides for
environmental safeguards in oil transportation greater than
those existing before its passage by: setting new standards
for vessel construction, crew licensing, and manning; providing
for better contingency planning; enhancing Federal response
capability; broadening enforcement authority; increasing penalties;
and authorizing multi-agency research and development. A one
billion dollar trust fund is available to cover clean-up costs
and damages not compensated by the spiller.
Title
I creates a liability and compensation regime for tank vessel
and facility-source oil pollution. Any party responsible for
the discharge, or the substantial threat of discharge, of oil
into navigable waters or adjoining shorelines or the Exclusive
Economic Zone is liable for the removal costs and damages, including
assessment costs; for injury, destruction, loss or loss of use
of natural resources, injury to, or economic losses resulting
from destruction of real or personal property; subsistence use
of natural resources, net lost government revenues, lost profits
or impairment of earning capacity; and net costs of providing
increased or additional public services during or after removal
activities. NOAA has the responsibility of promulgating damage
assessment regulations and following the regulations will create
a rebuttable presumption in favor of a given assessment. Sums
recovered by a trustee for natural resource damages will be
retained in a revolving trust account to reimburse or pay costs
incurred by the trustee with respect to those resources.
Title
II makes numerous amendments to conform to other Federal statutes,
particularly section 311 of the Clean Water Act, to the provisions
of the Oil Pollution Act.
Title
III encourages the establishment of an international inventory
of spill removal equipment and personnel.
Title
IV is divided into three subtitles: A) Prevention; B) Removal;
and C) Penalties and Miscellaneous. Subtitle A gives added responsibility
to the Coast Guard regarding merchant marine personnel, including
the review of alcohol and drug abuse and review of criminal
records prior to issuance and renewal of documentation. It also
amends the Ports and Waterways Safety Act to: require the Coast
Guard to "require appropriate vessels which operate in an area
of a vessel traffic service to utilize or comply with that service."
and 2) authorize the construction, improvement and expansion
of vessel traffic services.
Further,
Subtitle A establishes double hull requirements for tank vessels.
Most tank vessels over 5,000 gross tons will be required to
have double hulls by 2010, while vessels under 5,000 gross tons
will be required to have a double hull or double containment
systems by 2015. All newly constructed tankers must contain
a double hull (or double containment system if under 5,000 gross
tons), while existing vessels are phased out over a period of
years.
Subtitle
B amends subsection 311(c) of the Clean Water Act, requiring
the Federal Government to ensure effective and immediate removal
of a discharge, and mitigation or prevention of a substantial
threat of a discharge, of oil or a hazardous substance into
or on the navigable waters, on the adjoining shorelines, into
or on the waters of the Exclusive Economic Zone, or that may
affect natural resources belonging to, appertaining to, or under
the exclusive management authority of the U.S. It also requires
a revision and republication of the National Contingency Plan
within one year which will include, among other things, a Fish
and Wildlife response plan developed in consultation with NOAA
and U.S. Fish and Wildlife Service. Nothing in Subtitle B preempts
the rights of States to require stricter standards for removal
actions.
Subtitle
C alters and increases civil and administrative penalties for
illegal discharges and violations of regulations promulgated
under the Clean Water Act.
Title
VII authorizes an oil pollution research and technology development
program, including the establishment of an interagency coordinating
committee that is chaired by Department Of Transportation and
composed of representatives from the Departments of Energy,
the Interior, Transportation, Commerce (including NOAA), and
Defense, Environmental Protection Agency, Federal Emergency
Management Agency, National Aeronautics and Space Administration,
as well as such other Federal agencies as the President may
designate.
Title
IX amends the Oil Spill Liability Trust Fund and increases from
$500 million to $1 billion the amount that can be spent on any
single oil spill incident, of which no more than $500 million
may be spent on natural resource damage, assessments and claims.
Federal
Aviation Act (49 USC §§1301 et. seq.)
The
Federal Aviation Act gives the Secretary of Transportation broad
powers to promote air commerce and to regulate the use of navigable
airspace to ensure aircraft safety and efficient use of such
airspace. In furtherance of this mandate, the Federal Aviation
Administration, within the Department of Transportation publishes
aeronautical charts which provide a variety of information to
pilots, including the location of sensitive areas which should
be avoided.
Clean
Air Act (CAA) (42 USC §7401 et seq.)
The
Clean Air Act (CAA) sets general guidelines and minimal air
quality standards on a nationwide basis in order to protect
and enhance the quality of the Nation's air resources. States
are responsible for developing comprehensive plans for all regions
within their boundaries.
Outer
Continental Shelf Lands Act OCSLA (43 USC §1331 et
seq.)
The
Outer Continental Shelf Lands Act, (OCSLA) as amended in 1978
and 1985, establishes Federal jurisdiction over the mineral
resources of the Outer Continental Shelf (OCS) beyond 3 nm (5.6
km) and gives the Secretary of Interior primary responsibility
for managing OCS mineral exploration and development. The Secretary's
responsibility has been delegated to the Minerals Management
Service (MMS).
In
unique or special areas, MMS may impose special lease stipulations
designed to protect specific geological and biological phenomena.
These stipulations may vary among lease sale tracts and sales.
Lessees
are required to include, in exploration and development and
production plans, specific information concerning emissions
and their potential impacts on coastal areas. Such authority
includes the enforcement of regulations made pursuant to the
OCSLA (30 CFR Parts 250 and 256) and the enforcement of stipulations
applicable to particular leases.
In
addition to DOI, both the Army Corps of Engineers (COE) and
the U.S. Coast Guard (USCG) have responsibility over OCS mineral
development to the extent that such development affects navigation.
(43 USC 1333) COE is responsible for ensuring, through a permit
system, that OCS structures, including pipelines, platforms,
drill ships, and semi-submersibles, do not obstruct navigation.
USCG ensures that structures on the OCS are properly marked
and that safe working conditions are maintained onboard.
MMS
is also charged with supervising OCS operations, including approval
of exploration and development and production plans and applications
for pipeline rights of way on the OCS.
Title
I of the Marine Protection, Research, and Sanctuaries Act
(MPRSA) (33 USC §§1401 et seq.).
Title
I of the Marine Protection, Research, and Sanctuaries Act (MPRSA),
also known as the Ocean Dumping Act, prohibits: 1) any person
from transporting, without a permit, from the U.S. any material
for the purpose of dumping it into ocean waters (defined to
mean those waters of the open seas lying seaward of the baseline
from which the territorial sea is measured) and 2) in the case
of a vessel or aircraft registered in the U.S. or flying the
U.S. flag or in the case of a U.S. agency, any person from transporting,
without a permit, from any location any material for the purpose
of dumping it into ocean waters. Title I also prohibits any
person from dumping, without a permit, into the "territorial
sea," or the contiguous zone extending 12 nautical miles seaward
from the baseline of the territorial sea to the extent that
it may affect the territorial sea or the territory of the U.S.,
any material transported from a location outside of the U.S.
EPA regulates, through the issuance of permits, the transportation,
for the purpose of dumping, and the dumping of all materials
except dredged material; COE, the transportation, for the purpose
of dumping, of dredged material. The COE permits are subject
to EPA review and approval.. Title I also makes it unlawful
after December 31, 1991, for any person to dump into ocean waters,
or to transport for the purposes of dumping into ocean waters,
sewage sludge or industrial waste.
National
Historic Preservation Act (NHPA) (16 USC §§ 470
et seq.)
The
National Historic Preservation Act authorizes the Secretary
of the Interior to maintain a National Register of "districts,
sites, buildings, structures, and objects significant in American
history, architecture, archeology, and culture". Sites have
been listed on the National Register which include or are composed
entirely of ocean waters and submerged lands within state waters
or on the Outer Continental Shelf.
Any
federal agency conducting, licensing, or assisting an undertaking
which may affect a property listed or eligible for listing on
the National Register must prior to the action take into account
the effect of the undertaking on the property and provide the
Advisory Council on Historic Preservation a reasonable opportunity
to comment on the proposed action (16 USC §470f). The basic
criterion applied by the Council is whether the undertaking
will change the quality of the site's historic, architectural,
archeological, or cultural character (36 CFR Part 800).
Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) (42 USC §§ 9601 et seq.)
The
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), whose principal purpose in the cleanup of hazardous
waste sites, consists of four fundamental elements. First, it
creates an information-gathering and evaluation system to help
Federal and state governments categorize hazardous waste sites
and prioritize responses. Second, CERCLA provides Federal authority
to respond to releases of hazardous substances. Response actions
are carried out pursuant to the National Contingency Plan (NCP).
Third, CERCLA establishes a Hazardous Substance Trust Fund to
pay for removal and remedial actions and related costs. Finally,
CERCLA makes persons responsible for hazardous substance releases
liable for costs of removal or remedial action incurred by the
Federal or state government; other necessary costs of response
incurred by others; damages for injury, destruction or loss
of natural resources; and costs of any health assessment or
health effects study carried out pursuant to the Act.
State
Authorities
Because
the proposed National Marine Sanctuary is located entirely outside
State territorial waters, few State agencies have jurisdiction
over the area proposed to be included in the boundary. However,
certain State agencies do have jurisdiction over activities
that occur within, or may be proposed for, the Sanctuary.
Massachusetts
Coastal Zone Management Act of 1978 (Mass. General Laws
Chapter 21A, Chapter 6A, Sections
2-7; 16 USC §§ 1451 et seq.)
MCZM
is the principal planning and policy agency of the Commonwealth.
Its jurisdiction of particular relevance here is all State territorial
waters and any activity seaward of State territorial waters
that will likely have a direct effect on the coastal zone. The
MCZM Plan is embodied in a series of 27 program policies which
direct activities proposed for the coastal waters and areas
adjacent thereto. The policies deal with a broad range of issues,
from protection of critical areas, to port and harbor operations,
to offshore oil and gas development. Currently, the program
policies are being rewritten in an effort to update the management
plan. Ocean policy is an area that will likely see significant
attention in the updated management plan.
Massachusetts
Ocean Sanctuaries Act (Massachusetts General Laws Chapter
132A, Sections 13-16, 18)
The
purpose of the Ocean Sanctuaries Program is to protect the five
State-designated Ocean Sanctuaries from any exploitation, development,
or activity which would seriously alter or otherwise endanger
the ecology and appearance of the ocean, the seabed, or the
subsoil of the seabed, or the Commonwealth waters adjacent to
the Cape Cod National Seashore. The program is administered
by the Massachusetts Department of Environmental Management,
and is primarily implemented through coordination with State
licensing and permitting agencies. Activities specifically prohibited
in Ocean Sanctuaries include the building of any structure on
the seabed or under the subsoil; the construction or operation
of offshore electrical generating stations; the removal of sand
and gravel; oil and gas exploration and exploitation; and the
dumping or discharge of commercial or industrial waste.
Massachusetts
Division of Marine Fisheries (Massachusetts General Law
Chapter 130, Section 1-104)
The
function of the Massachusetts Division of Marine Fisheries is
to manage and regulate all activities associated with the taking
of fish and shellfish in the waters of the Commonwealth. The
Division also reviews and comments on proposals for activities
in coastal and nearshore waters to insure that adverse impacts
to marine resources are minimized. While the jurisdiction of
the DMF is generally limited to State territorial waters, they
are actively involved in a number of regional fisheries management
programs which directly affect the Sanctuary.
A
number of State agencies have jurisdiction over activities which,
while located outside the proposed Sanctuary, could adversely
affect Sanctuary resources or qualities.
Wetlands
Protection Act (Massachusetts General Laws Chapter 131,
Section 40)
This
authority is exercised primarily through the city or town conservation
commission, with appeal to the Massachusetts Department of Environmental
Protection. The Act protects wetland resource issues and attributes
relevant to the Sanctuary, including fisheries, land containing
shellfish, prevention of pollution, and wildlife habitat, and
applies to any activity which involves "dredging, filling, altering,
or removing" within the resource area. As a part of this review,
The State's Natural Heritage and Endangered Species Program,
evaluates the possible effects of the proposed activity on State-listed
rare, threatened, and endangered species.
Massachusetts
Environmental Policy Act (Massachusetts General Laws Chapter
30, Sections 62-62H)
The
Massachusetts Environmental Policy Act (MEPA) provides for a
coordinated State review of generally large and complicated
projects, allowing more efficient collection of essential information
covering a wide range of potential adverse environmental impacts.
The information collected during the MEPA process is to be used
by regulatory agencies in their regulatory reviews. For example,
dredging projects involving volumes of dredged material greater
than 10,000 cubic yards would be reviewed by MEPA.
Massachusetts
Public Waterfront Act (Massachusetts General Laws Chapter
91)
This
authority is primarily involved in the licensing of fill and
structures in the tidelands of the Commonwealth, with a principal
regulatory interest in preserving safe navigation and public
access.
Massachusetts
Clean Waters Act (Massachusetts General Laws Chapter 21,
Section 27)
Along
with delegated authority under provisions of the Clean Water
Act at Section 401, the Department of Environmental Protection,
Division of Water Pollution Control (DEP-DWPC) reviews discharges
into waters of the Commonwealth. Their principal interest is
the protection of water quality.
Massachusetts
Board of Underwater Archaeological Resources (Massachusetts
General Laws Chapter 6, Sections 179-180; Chapter 9, Section
26; Chapter 12, Section 11D; Chapter 30, Section 61; Chapter
91, Sections 63, 72)
The
Board of Underwater Archaeological Resources (BUAR) is responsible
for the protection and preservation of underwater archaeological
resources in the waters of the Commonwealth. A permit from the
Board is required for activities which affect resources under
their jurisdiction.
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