Comment from Andrea Treece, Center for Biological Diversity

Thank you for the opportunity to comment on the National Oceanic and Atmospheric Administration’s (“NOAA”) solicitation of comments entitled Conducting Consultations Pursuant to Section 304(d) of the National Marine Sanctuaries Act (“NMSA”). 73 Fed. Reg. 50259 (August 26, 2008). These comments are submitted on behalf of the Center for Biological Diversity (“the Center”), a non-profit public interest conservation organization with nearly 60,000 members nationally. The Center is dedicated to protecting imperiled species and their habitats by combining scientific research, public organizing, and administrative and legal advocacy. NOAA should develop regulations to clarify the consultation requirements under Section 304(d). The Center for Biological Diversity supports the creation of regulations to implement the consultation requirements under Section 304(d) of the NMSA. The NMSA provides NOAA with the authority to review all federal agency actions that may potentially affect sanctuary resources and with authority to recommend alternatives to the federal agency action. NOAA should adopt regulations clarifying the circumstances triggering the consultation requirement, the actions necessary to comply with the consultation requirement and the mandatory duty to restore or replace any sanctuary resource damaged by a federal agency action. In recognition of the inherent difficulty of replacing or restoring sanctuary resources and their values to a national marine sanctuary once damage has taken place, the interagency consultation provision was added to the NMSA in order to prevent damage to sanctuary resources before it occurred. H.R. Rep. 102-565, at 7 (1992). In addition, by requiring a federal agency to replace or restore any sanctuary resource damaged by an agency action even after going through Section 304(d) consultation, the consultation provision acts as an additional deterrent to damaging sanctuary resources. Unfortunately, to date, the consultation requirement has not effectively prevented federal agency actions that are likely to damage sanctuary resources. Implementing regulations clarifying the consultation requirement could make the consultation provision an effective tool to proactively protect sanctuary resources. Section 304(d) regulations should establish a mandatory consultation process similar to the Endangered Species Act Section 7 consultation process. The section 304(d) regulations should make clear that any federal agency planning to undertake an activity that may affect NMS resources must initiate consultation with NOAA regarding the effect of the activity on sanctuary resources by providing a reasonably detailed written description of the proposed activity and its anticipated effects on sanctuary resources. The regulations should further clarify that if the action agency fails to provide such a description, or otherwise fails to properly initiate consultation, that NOAA has the authority to require the action agency to initiate consultation. Furthermore, consistent with consultation requirements, the regulations should establish that the action agency bears the burden of showing that its proposed action will not adversely impact sanctuary resources. Finally, the regulations should specify that the agency shall not make any irreversible or irretrievable commitment of resources until consultation is complete. Section 304(d) regulations must be consistent with the unambiguous statutory requirement that consultation is mandatory for federal agency actions both internal and external to a national marine sanctuary. The NMSA requires consultation on federal agency actions “internal or external to a national marine sanctuary . . . that are likely to destroy, cause the loss of, or injury any sanctuary resource.” 16 U.S.C. § 1434(2)(d)(1)(A). The legislative history of the NMSA further clarifies that the consultation provision applies to: “(1) activities inside sanctuary boundaries affecting sanctuary resources that occur within the boundaries of a sanctuary; and (2) activities outside sanctuary boundaries that affect sanctuary resources while those resources are within the sanctuary.” H.R. Rep. No. 102-565, at 15. Therefore, any regulations adopted by NOAA to implement Section 304(d) consultation must be consistent with the requirement that actions external to the sanctuary that are likely to affect a sanctuary resource trigger the consultation requirement. Activities external to a sanctuary that would likely effect sanctuary resources include a wide variety of actions, such as the discharge of waste and other materials near or in the current of a sanctuary, and activities creating noise pollution near a sanctuary. NOAA’s regulations should make clear to federal agencies that these types of activities, although external to the sanctuary, must undergo Section 304(d) consultation. The “potential effects” of an agency action on sanctuary resources must include direct, indirect as well as cumulative effects of the action. Section 304(d)(1)(B) specifies that an action agency must provide a written statement to the Secretary “describing the action and its potential effects on sanctuary resources.” 16 U.S.C. § 1434 (2)(d)(1)(B). NOAA should adopt regulations clarifying the “potential effects” that must be included as part of the action agency’s consultation statement. The legislative history of the enactment demonstrates that Congress intended “potential effects” to include not only direct effects on sanctuary resources but also the cumulative and secondary effects on sanctuary resources resulting from the agency action. The House Report states, “that agency actions encompass all actions that are reasonably likely to affect sanctuary resources while those resources are within sanctuary boundaries, including the cumulative and secondary effects of such actions.” H.R. Rep. No. 102-565, at 12. Federal agencies could benefit from clearer guidelines from NOAA on what must be included in its “potential effects” statement in order to fulfill this statutory mandate. Regulations authorizing a single consultation on a series or class of actions similar in type and effect would be inconsistent with the NMSA. The NMSA requires an agency to determine whether a federal action, inside of or outside of the sanctuary is likely to negatively effect any sanctuary resources. These effects include not only the direct effects of such action but also indirect and cumulative effects. Programmatic consultations authorizing a series or class of actions may be appropriate in certain limited circumstances where the effects of the actions are well-known and strong monitoring and management measures are in place to ensure that the actions’ effects do not exceed expectations. For example, such a programmatic consultation may be appropriate for wildlife-watching operations. It would not be appropriate for fisheries operations, where the effects of on-going fishing must be continually monitored and assessed before any changes in fishing operations can be authorized. Any regulations NOAA proposes to authorize a single consultation for a series or class of actions should be narrowly tailored to take into account the agency’s duty to carefully consider direct, indirect, and cumulative impacts of each action. Compliance with consultation requirements under other relevant statutes may not substitute for compliance with the procedural and substance requirements of NMSA Section 304(d). While a number of environmental statutes require federal agencies to go through some type of consultation before undertaking actions they may effect the environment, each of these statutes impose different procedural and substantive obligations on the action agency and the agency being consulted. For the sake of efficiency, an agency may choose to undertake required consultations in parallel. However, the triggers for consultation, analyses undertaken, and standards used to determine the effects of the proposed action must comply with each applicable statute. For example, a “no jeopardy” determination made in a biological opinion pursuant to the Endangered Species Act may not substitute for a determination whether the proposed action is likely to cause the loss or destruction of or injury to sanctuary resources. Because NMSA carries its own discrete substantive and procedural requirements, compliance with the requirements of other environmental statutes cannot be counted as compliance with NMSA. NOAA should adopt regulations to implement the statutory duty to mitigate and restore or replace any sanctuary resource destroyed, lost or injured by a federal agency action. Under Section 304(d)(4), if a federal agency takes an action not recommended by the Secretary, and the result is destruction, loss of, or injury to a sanctuary resource, the agency has a duty to prevent and mitigate further damage and also to replace or restore the sanctuary resource. NOAA should adopt regulations clarifying this statutory duty. The regulations should specify that replacement or restoration must include replacement or restoration of all the values the sanctuary resource contributed to the given sanctuary. These values include conservation, recreational, ecological, historical, educational, cultural, archeological, scientific and/or aesthetic. Thank you very much for your consideration of these comments. Please contact me if you have any questions or concerns.