NOAA’s Organizational Structure for Consultations, Permits, and Authorizations Environmental Compliance Training

ESA, MMPA, EFHNMSA, CZMA

Terminology/Nomenclature for NOAA Compliance Processes Statute or RegulationSectionTerminologyNOAA OfficeAdditional Info Endangered Species Act (ESA) 7ConsultationNMFS Office of Protected Resources (OPR) HQ (or regional office) Receive a Biological Opinion w/Incidental Take Statement (formal) Letter of Concurrence (informal). Conducted for Federal activities. ESA10(a)(1)PermitNMFS OPR HQProvided for scientific research or non-Federal activities Marine Mammal Protection Act (MMPA) 101(a)(5)AuthorizationNMFS OPR HQResults in an Incidental Take Authorization (either IHA or LOA) MMPA104PermitNMFS OPR HQPermit for activities directed at marine mammals Magnuson-Stevens Act Essential Fish Habitat Subpart JConsultationNMFS Office of Habitat Conservation Required for Federal activities that may affect EFH National Marine Sanctuaries Act (NMSA) 304(d)ConsultationNOS Office of National Marine Sanctuaries Required for Federal activities that are likely to injure sanctuary resources or may affect Stellwagen Bank NMS resources. National Marine Sanctuary Regulations 15 CFR Part 922 General permit and Authorization NOS Office of National Marine Sanctuaries Permit or authorization for activities that are otherwise prohibited. Authorizations are linked to a separate federal, state or local approval. NMSA310Special use permitNOS Office of National Marine Sanctuaries Required for certain categories of activities published in Federal Register.

National Marine Sanctuaries Permits and Consultations USGC Training – Washington, DC June 10, 2015 Vicki Wedell Acting Chief for Policy and Planning 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 Bridge 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 permit Activities prohibited by ONMS regulations Permit categories All sites – except HIHW Authorization Activities prohibited by ONMS regulations Nexus to other federal, state or local permit 6 sites Special use permit Authority granted in NMSA 7 categories of activities No injury of sanctuary resources All sites – except HIHW

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 summer 2015

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 Categories 1.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: 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 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

Vicki Wedell NOAA Office of National Marine Sanctuaries 1305 East West Highway Silver Spring, MD Phone: ext