National Marine Sanctuary Program Policy on Permit Applications for Artificial Reef Development, 57127-57130 [05-19502]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57127-57130]
From the Federal Register Online via the Government Printing 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 https://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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