E6-10340. Notice of Intent To Conduct Restoration Planning

AGENCY:

National Oceanic and Atmospheric Administration (NOAA), Commerce.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA), along with the other natural resource trustees, has determined that the impacts of the November 26, 2004, discharge of crude oil from the M/T ATHOS I (Athos), over which such trustees have jurisdiction, warrant conducting a natural resource damage assessment that will include restoration planning. NOAA is hereby providing notice of efforts to plan restoration actions for injuries resulting from this incident. The purpose of this restoration planning is to evaluate potential injuries to natural resources and services, and use that information to determine the need for and scale of restoration actions.

FOR FURTHER INFORMATION CONTACT:

For further information, contact Jim Hoff at: NOAA, Damage Assessment Center, Room 10218, 1305 East-West Highway, Silver Spring, MD 20910-3281, 301-713-3038, x 188 (ph), 301-713-4387 (fax), [e-mail].

SUPPLEMENTARY INFORMATION:

On November 26, 2004, the Athos, registered under the flag of Cyprus, owned by Frescati Shipping Company, Ltd., and operated by Taskos Shipping and Trading, discharged approximately 264,000 gallons of crude oil into the Delaware river and nearby tributaries. The owner and operator of the vessel may be “Responsible Parties” for this incident as defined by the Oil Pollution Act (OPA) 33 U.S.C. 2701 et seq. The final determination of liability for this incident is being considered by the U.S. Coast Guard. Numerous natural resources, including aquatic habitat and animals and the recreational uses they support, were exposed to the toxic and smothering effects of the oil discharged from the Athos. Adult and larval fish and shellfish, including the federally-endangered shortnose sturgeon winter in certain areas of the Delaware River, and the waters around Little Tinicum Island are known to contain high numbers of pre-spawn and spawning striped bass in April and May. Delaware Bay supports commercial and natural oyster beds, commercial blue crab, horseshoe crab, and whelk fisheries, as well as a variety of recreational fisheries. Several rare tidal marsh plants are also found in the region, including wild rice, waterhemp ragweed, Walter's barnyard grass, swamp-beggar-ticks, and marsh fleabane. Fresh to saltwater wetlands wild rice marshes, sand beaches, mud flats, and tidal creeks are among the environmentally important shorelines potentially affected by the spill. Bird and wildlife resources at risk include migrating marsh birds, egret and heron rookeries, eagles and osprey, and migratory shorebirds. The federally-threatened piping plover inhabits the Lower Delaware Bay. There are also a variety of mink, otter, turtles, and terrestrial fauna that use the affected area. Many types of recreation are also popular along the Delaware River in the areas affected by the spill, waterfowl hunting, boating, fishing, crabbing, as well as beach and other shoreline use.

Under OPA, state and Federal agencies and Indian tribes are designated as natural resource trustees, responsible for assessing natural resource losses and restoring those losses to baseline conditions, i.e., the condition that would have been had the incident not occurred. Trustees for the Athos incident are the U.S. Department of Commerce, NOAA; U.S. Department of the Interior (DOI), Fish and Wildlife Service; Commonwealth of Pennsylvania, Department of Conservation and Natural Resources, Department of Environmental Protection, Game Commission, and Fish and Boat Commission; State of New Jersey, Department of Environmental Protection; and State of Delaware, Department of Natural Resources and Environmental Control. By agreement of the trustees, NOAA is serving as the lead administrative trustee. The trustees are designated pursuant to 33 U.S.C. 2706(b), Executive Order 12777, and the National Contingency Plan, 40 CFR 300.600 and 300.605. State laws (7 Del. C. Chapters 60, 62, and 91; N.J.S.A. § 13:lD—9f and 9q,; N.J.S.A. § 58:10-23.11 et seq.; N.J.S.A. § 58:1OA-1 et seq; 35 P.S. § 6020.301(14); 30 Pa. C.S.A. § 2506; 35 P.S. § 691.605; 71 P.S. § 1340.101 et seq.) describe state trust resources, including the following: vegetated wetlands, surface waters, ground waters, air, soil, wildlife, aquatic life, and the appropriate habitats on which they depend. DOI, through the involvement of the U.S. Fish and Wildlife Service, is trustee for natural resources described within the National Contingency Plan, 40 CFR 300.600(b)(2) and (3), which include the following and their supporting ecosystems: migratory birds, anadramous fish, endangered species and marine mammals, federally owned minerals, certain federally managed water resources, and natural resources located on, over, or under land administered by the DOI. NOAA's trust resources include, but are not limited to, commercial and recreational fish species, anadramous and catadromous fish species, marshes and other coastal habitats, marine mammals, and endangered and threatened marine species.

Immediately following the spill, the trustees initiated a number of preassessment data collection activities, pursuant to OPA, to make an initial determination as to whether natural resources or services have been injured or are likely to be injured by the discharge. Specific preassessment activities included shoreline (aerial and ground) and resource (e.g., bird and wildlife, horseshoe crab, etc.) surveys and ephemeral data collection (e.g., water, sediment, and fish and shellfish tissue samples). The trustees' Preassessment Data Report details these preassessment data collection efforts, and provides laboratory results and supporting information. This Preassessment Data Report is available for review at: http://www.darrp.noaa.gov/​northeast/​athos/​index.html.

Findings from the preassessment efforts demonstrate or suggest four general areas of natural resource injuries: (1) Shorelines (marshes, sandy and coarse gravel beaches, tidal flats, etc.); (2) aquatic resources, particularly subtidal benthic habitat; (3) birds and wildlife; and (4) lost interim use of public services (fishing, hunting, and boating). The trustees have implemented or are developing studies to assess the extent of these injuries.

Trustee Determinations: Following the notice of the discharge, the natural resource trustees have made the following determinations required by 15 CFR 990.41(a):

The natural resource trustees have jurisdiction to pursue restoration pursuant to OPA, 33 U.S.C. 2702 and 2706(c); 40 CFR part 300, the OPA Natural Resource Damage Assessments Final Rule, 15 CFR part 990, 61 FR 440 (January 6, 1996); 7 Del. C. Chapters 60, 62, and 91; N.J.S.A. § 13:lD—9f and 9q, N.J.S.A. § 58:10-23.11 et seq.; N.J.S.A. § 58:1OA-1 et seq.; 35 P.S. § 6020.301(14); 30 Pa. C.S.A. § 2506; 35 P.S. § 691.605; 71 P.S. § 1340.101 et seq.

The trustees have further determined that the discharge of crude oil into the Delaware River and its tributaries on November 26, 2004, was an incident, as defined in 15 CFR 990.30.

This discharge was not permitted under state, Federal, or local law.

The discharge was not from a public vessel.

The discharge was not from an onshore facility subject to the Trans-Alaska Pipeline Authority Act, 43 U.S.C. 1651, et seq.

Natural resources under the trusteeship of the natural resource trustees listed above may have been injured as a result of the incident. The crude oil discharged contains components that may be harmful to aquatic organisms, birds, wildlife, and vegetation. Vegetation, birds, and or aquatic organisms may have been exposed to the oil from this discharge, and injury to some flora and fauna and lost ecological services may have resulted from this incident.

Because the conditions of 15 CFR 990.41(a) were met, as described above, the trustees made the further determination pursuant to 15 CFR 990.41(b) to proceed with preassessment. The owner and operator, at the invitation of the trustees, pursuant to 15 CFR 990.14(c), agreed to participate in the preassessment.

Determination To Conduct Restoration Activities

For the reasons discussed below, the natural resource trustees have made the determinations required by the 15 CFR 990.42(a) and are providing notice pursuant to 15 CFR 990.44 that they intend to conduct restoration planning in order to develop restoration alternatives that will restore, replace, rehabilitate, or acquire the equivalent of natural resources injured and/or natural resource services lost as a result of this incident.

Injuries have resulted from this incident, the extent of which has not been fully determined at this time. The trustees base this determination upon data presented in the Preassessment Data Report, which were collected and analyzed pursuant to 15 CFR 990.43, which demonstrate that resources and services have been injured from this incident including, but not limited to, the following:

(A) Shorelines: Preassessment shoreline surveys documented oil over 115 river miles (280 miles of shoreline) from the Tacony-Palmyra Bridge to south of the Smyrna River in Delaware. Data have been collected on types of shorelines impacted and degree(s) of oiling that will be used to define the extent and degree of impact.

(B) Birds and Wildlife: Aerial and ground surveys were conducted following the incident assess the species composition and abundance of birds in the spill area, as well as the extent and degree of oiling of non-recovered wildlife. By May 2005, a number of oiled birds were observed; 206 wild birds were collected dead, died at the rehabilitation center, or were unable to be released to the wild, and 337 birds were rehabilitated and released alive. Recovered wildlife that were collected dead or died at the rehabilitation center included three turtles, one squirrel, one opossum, one red fox, and one woodchuck. Two turtles were unable to be released to the wild and were placed domestically. The trustees have developed studies to determine the impact of the incident on birds and wildlife.

(C) Aquatic resources: Oil was observed suspended though the water column and on the river bottom. The trustees collected numerous water, sediment, and fish and shellfish tissue samples that will be used to assess the effect of the incident on aquatic resources during the damage assessment.

(D) Lost Use: Following the incident, hunting and boating advisories were issued in Delaware and New Jersey, closing certain areas. In Delaware, state lands were closed to hunting as far south as Cedar Swamp Wildlife Area. In New Jersey, the hunting advisory included most areas within five miles of the River from the Tacony-Palmyra Bridge to the nuclear power facility in Salem, NJ. The advisories were in effect for about two weeks.

Although response actions were pursued, the nature of the discharge and the sensitivity of the environment precluded prevention of injuries to some natural resources. The trustees believe that injured natural resources could return to baseline through natural or enhanced recovery, but interim losses have occurred and will continue to occur until a return to baseline is achieved.

Feasible compensatory restoration actions exist to address injuries from this incident. Restoration actions that could be considered may include, but are not limited to: Replanting native wetland vegetation in appropriate areas, creation, enhancement or protection of marsh or other habitat with similar service flows, protection of endangered species, removal of dams and installation of fishways to enhance propagation of migratory fish, creation of oyster reef habitat, creation of submerged aquatic vegetation habitat, and creation of bird colony areas.

Assessment procedures are available to evaluate the injuries and define the appropriate type and scale of restoration for the injured natural resources and services. Among these procedures are bird and marsh habitat injury assessment studies to be used in conjunction with the Resource Equivalency Analysis (REA) and Habitat Equivalency Analysis (HEA), respectively, to determine compensation for injuries to birds and marsh habitats. Models, comparisons to observations of injury resulting from similar incidents, or other methodologies are available for evaluating injuries to the ecosystem.

Public Involvement: Pursuant to 15 CFR 990.44(c), the trustees seek public involvement in restoration planning for this incident, through public review of and comments on the documents contained in the administrative record.. The record is on file at the NOAA Damage Assessment Center in Silver Spring, Maryland, and can be viewed electronically at: http://www.darrp.noaa.gov/​northeast/​athos/​index.html.

NOAA, as the Lead Administrative Trustee, and on behalf of the natural resource trustees of the [the other trustees], pursuant to the determinations made above and in accordance with 15 CFR 990.44(d), hereby provides this Notice of Intent to Conduct Restoration Planning and invites its participation in conducting the restoration planning for this incident.

Dated: June 27, 2006.

Ken Barton,

Acting Director, Office of Response and Restoration, National Ocean Service, National Oceanic and Atmospheric Administration.