REDEFINING THE SCOPE OF WATERS PROTECTED UNDER THE CLEAN WATER ACT

PROPOSED RULE

 

Title: Definition of “waters of the United States” – Recodification of Pre-existing rules

Docket ID: CEO-2017-0005

Agency: EPA, DOD - Army Corps of Engineers

Comments Close: September 27, 2017 (extended from August 28, 2017)

 

 

Summary Index (select section title to go to section)

  1. Purpose
  2. Notice Details 
  3. Context: (1) Definition of "waters of the United States" and the Clean Water Act, (2) Evolution of the current definition through relevant court cases, (3) The Clean Water Rule.

 

 

PURPOSE:

In 2015, the Environmental Protection Agency and the Department of the Army published the Clean Water Rule: Definition of `Waters of the United States'. The agencies now propose to replace the 2015 definition of “waters of the United States”, and reinstate the definition of "waters of the United States" 'that existed prior to the 2015 rule, to reflect the current legal regime under which the agencies are operating.' This is in compliance with the February 28, 2017 Executive Order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.”Changing the definition of "waters of the United States" changes the waters which fall under the provisions of the Clean Water Act. 

 

 

 

NOTICE DETAILS:

'In this proposed rule, the agencies would rescind the 2015 Clean Water Rule,' and replace it with the definition of "waters of the United States" used prior to the Clean Water Rule. This is the definition currently being implemented by the EPA and the Army Corps of Engineers. 

While the proposal merely establishes a definition, and not any regulatory requirements or mandated actions, 'by changing the definition of “waters of the United States,” the proposed rule would change the waters where other regulatory requirements ...come into play,' such as when a permit would be required to dump waste into a certain body of water. 'The consequence of a water being deemed non-jurisdictional is simply that [Clean Water Act] provisions no longer apply to that water.'

In the text, the agencies note that 'a decision to rescind and revise the regulatory definition of the "waters of the United States" need not be based upon a change of facts or circumstances. A revised rulemaking based “on a re-evaluation of which policy would be better in light of the facts” is “well within an agency's discretion,” and “[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal” of its regulations and programs.'

'Nothing in this proposed rule restricts the ability of States to protect waters within their boundaries by defining the scope of waters regulated under State law more broadly than the federal law definition.'

 

 

 

CONTEXT:

The legal definition for “waters of the United States” greatly impacts how the Environmental Protection Agency (EPA) implements the Clean Water Act. The Clean Water Act, or CWA, was established to prevent, reduce, and eliminate pollution in the nation’s water in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” and to eliminate discharge of pollutants in “navigable waters” (section 101(a); section 502(7)). Additionally, the CWA establishes permit systems, programs, and standards, to meet its defined goals, among which includes the dredge or fill discharge permit program (section 404(a)). This program prohibits any discharge of dredged or fill materials into “navigable waters”, defined as “waters of the United States”, unless authorized by a permit issued by the Army Corps of Engineers.

How "waters of the United States" is defined directly effects "the scope of CWA jurisdiction, [which] is an issue of great national importance." This definition has changed several times since the CWA was established.

 

Evolution of the current definition of "waters of the United States"

Congressional Research Service

U.S. v. Riverside Bayview Homes 1985

The US Army Corps of Engineers issued a regulation to interpret the dredge or fill discharge permit program of the CWA to include “adjacent wetlands” as waters of the United States, and defined “adjacent wetlands” as “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions”.

 This expansion of the “waters of the United States” was upheld by the Supreme Court in a 1985 court case. Bayview Homes, Inc. began placing fill materials on its property near Lake St. Clair, Michigan and the Corps issued a suit to prevent Bayview Homes from filling its property without applying for the required permit.

Ultimately, the Supreme Court deferred to the Corps’ judgment that adjacent wetlands are “inseparably bound up” with waters to which they are adjacent, and upheld the inclusion of adjacent wetlands in the regulatory definition of “waters of the United States”.

 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) 2001

In 1986, the Army Corps of Engineers attempted to clarify its jurisdiction stating that the definition of “waters of the United States” extends to intrastate waters that provide habitat for migratory birds, as migratory birds are a form of interstate commerce. This was dubbed the “Migratory Bird Rule” (FRL-7439-9). Ultimately, the Supreme Court ruled the use of ‘isolated’ non-navigable intra-state ponds by migratory birds was an insufficient basis for federal regulation. This decision did not call into question previous rulings for wetlands ‘adjacent’ to navigable waterways, but did introduced a concept that it is a ‘significant nexus’ which informs the Courts reading of the CWA jurisdiction over non-navigable waters.

 This ruling came from a court case following the Solid Waste Agency of Northern Cook County selection of an abandoned sand and gravel pit as a solid waste disposal site. This pit, after being unused for a long period, had evolved into permanent and seasonal ponds. The operation required some of the ponds to be filled, which required a landfill permit from the Army Corps of Engineers. The Corps refused to issue the permit on the basis of the Migratory Bird Rule. Even though lower courts had sustained the Rule for the 15 years since the Rule was implemented, this case went to the Supreme Court, which threw out the Rule.

 Rapanos v. United States (Rapanos) 2006

In 1989 the petitioner, John A. Rapanos, backfilled wetlands on a parcel of land he owned and sought to develop in Michigan. The parcel included land with sometimes-saturated conditions, though the nearest navigable water body was 11 to 20 miles away. Rapanos was informed his land included ‘waters of the United States’ even though they were not navigable waterways.

It was determined that a critical factor in the CWA’s coverage is whether the water has ‘significant nexus’ to downstream ‘traditional navigable waters’ – in other words, is the water important to protecting the chemical, physical, or biological integrity of navigable waters? A guidance was issued in 2008 by the EPA and Corps for clarification, but the agencies did not officially change or codify the definition.

 

The Clean Water Rule

The EPA and the Corps were ask to replace the 2008 guidance (above) with a regulation to provide more clarity by a range of organizations, including Congress, developers, farmers, state and local governments, environmental organizations, and energy companies. The agencies published a final rule defining the scope of the “waters of the United States” protected under the CWA: the 2015 Clean Water Rule: Definition of “Waters of the United States”The definition established in this rule incorporated the Supreme Court Decisions of Riverside, SWANCC, and Rapanos, in addition to agencies’ experience, expertise, scientific review, and public comment periods.

The 2015 Clean Water Rule established eight types of waterways and the extent of the legal power to regulate those waters under the CWA.

“Waters of the United States,” regulated under the CWA:

.

  • Traditional navigable waterways, interstate waters, and impoundments of jurisdictional waters
  • Other waterways which have a “significant nexus” to navigable waters, interstate waters, or territorial seas. This includes: (1) tributaries, (2) adjacent waters that are “bordering, contiguous, or neighboring” navigable waterways, interstate waters, and impoundments, (3) adjacent waters separated by constructed dikes, barriers, natural river berms, and beach dunes.”  
  • Streams that are “intermittent, ephemeral, or headwaters”

Not “Waters of the United States”: Waters that are not classified as navigable waterways, interstate waters, impoundments, tributaries, or adjacent waters, which includes:

  • Converted cropland
  • Waste treatment systems
  • Ditches that are not modified tributaries
  • Groundwater
  • Erosional features

This rule also established a "significant nexus" standard which allows agencies to interpret the scope of the “waters of the United States” if the waters in question significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstates waters, or territorial seas - either alone, or in combination with similarly situated waters in the region. So any of the excluded waters above are subject to a case-specific analysis to determine if a "significant nexus" exists, and if it does, that specific water body is regulated under the Clean Water Rule. 

 

Stay of the Clean Water Rule by the Sixth Circuit Court

After publication of the final Clean Water Rule, thirteen States and additional parties sought judicial review about the Rule’s scope and legal authority. In State of North Dakota et al. v. US EPA the Sixth Circuit court of appeals paused the implementation of the Clean Water Rule until the Supreme Court could hear the case and make a decision on its legality. As of August 2017, the EPA and the Corps use the pre-Clean Water Rule definition of “waters of the United States” to implement the Clean Water Act.

 

Review of the Clean Water Rule by Executive Order

An executive order was issued on February 28, 2017 (Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule) which called for a review of the 2015 Clean Water Rule by the Administrator of the EPA and Assistant Secretary of the Army for Civil Works to ensure “the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress” and to rescind or revise any rules, orders, regulations, guidelines, or policies that do not comply with these goals. Additionally, it states the definition of “navigable waters” will be interpreted as defined by 33 U.S.C. 1362(7) “in a manner consistent with Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006),” who expressed concern over the Corps' broadening of the definition of "waters of the United States" as regulatory overreach. 

 

 

 

Contributor: MS Student, Aquatic and Fishery Sciences

EPA WITHDRAWAL OF PROPOSED DETERMINATION FOR PEBBLE DEPOSIT AREA

Notice

 

Title: Proposal To Withdraw Proposed Determination To Restrict the Use of an Area as a Disposal Site; Pebble Deposit Area, Southwest Alaska

Docket ID: EPA-R10-OW-2017-0369

Agency: EPA - Region 10 Office

Comments Close: October 17, 2017

Pebble Deposit Location. Source: The Pebble Partnership

Summary Index (select section title to go to section)

  1. Purpose
  2. Notice Details
  3. Context: (I) Bristol Bay Watershed and the Pebble Deposit, (II) 2014 Proposed Determination and Section 404(c) of the Clean Water Act,  (III) Lawsuit and Settlement. 
  4. Debate: (I) Against Withdrawal, (II) In Favor of Withdrawal
  5. Glossary

 

 

PURPOSE:

‘The Environmental Protection Agency (EPA) Administrator and Region 10 Regional Administrator are requesting public comment on this proposal to withdraw the EPA Region 10 July 2014 Proposed Determination. The 2014 Determination would have restricted the use of certain waters in the South Fork Koktuli River, North Fork Koktuli River, and Upper Talarik Creek watersheds in southwest Alaska as disposal sites for dredged or fill material associated with mining the Pebble deposit, a copper-, gold-, and molybdenum-bearing ore body. The EPA agreed to initiate this withdrawal process as part of a May 11, 2017 settlement agreement with the Pebble Limited Partnership, whose subsidiaries own the mineral claims to the Pebble deposit. The EPA is accepting comments from the public on the rationale for the proposed withdrawal.’

 

 

NOTICE DETAILS:

‘The proposal reflects the Administrator's decision to provide the Pebble Limited Partnership with additional time to submit a permit application to the Army Corps and potentially allow the Army Corps permitting process to initiate without having an open and unresolved section 404(c) review.’ The Pebble Limited Partnership needs a permit from the Army Corps of engineers to discharge dredged or fill material into US waters. Although the Pebble Limited Partnership can submit a permit application to the Army Corps while a section 404(c) review is open, the Army Corps cannot issue a final decision on the permit. The 2014 Proposed Determination was one step in an open 404(c) review process. 

‘A withdrawal of the Proposed Determination would remove any uncertainty, real or perceived, about [Pebble Limited Partnership]'s ability to submit a permit application and have that permit application reviewed. Because the Agency retains the right under the settlement agreement to ultimately exercise the full extent of its discretion under section 404(c), including the discretion to act prior to any potential Army Corps authorization of discharge of dredged or fill material associated with mining the Pebble deposit, the Agency believes that withdrawing the Proposed Determination now, while allowing the factual record regarding any forthcoming permit application to develop, is appropriate at this time for this particular matter.’

The EPA is specifically seeking public comment on:

  1. Whether to withdraw the July 2014 Proposed Determination at this time for the reasons stated above; and

  2. If a final withdrawal decision is made following this comment period, whether the Administrator should review and reconsider the withdrawal decision.

 

 

CONTEXT:

Timeline of events related to Pebble Mine Determination

For more detailed timeline, refer to this graphic by the Bristol Bay Native Corporation. 

 

Bristol Bay Watershed & the Pebble Deposit

Bristol Bay is where the Bering Sea meets the expansive floodplain of Southwest Alaska. The complex hydrography of the region, with its numerous rivers, streams, and lakes, provides healthy habitat for wildlife such as salmon, bears, moose, and waterfowl. Every year, up to 40 million sockeye salmon return to this watershed to reproduce, and their migration supports the livelihoods of human communities in Alaska. The Yupik, Alutiiq, and Dena’ina peoples have called Bristol Bay home since time immemorial; for these groups, subsistence fishing, hunting, and gathering are important livelihood and cultural activities. The contributions of the Bristol Bay fishery to the vibrancy of Southwest Alaska was formally recognized in 1972, when Senator Jay Hammond and the Alaska Legislature established the Bristol Bay Fisheries Reserve, in order to protect the area from the potentially harmful effects of oil and gas development.

In addition to its ecological and cultural wealth, Bristol Bay also contains substantial mineral deposits; the Pebble deposit is among them.  Approximately 90 million years ago (around the time T. rex was alive!), as the Pacific tectonic plate slid beneath the North American plate, magma containing dissolved copper, gold, molybdenum, and silver, deposited these metals into the Pebble region.  In the late 1980’s, the mining company Teck conducted explorations in the area and discovered these mineral deposits. The deposits are very large but they are considered “low-grade”, meaning that the desired copper, gold, and molybdenum minerals are “sprinkled throughout the rock like fine grains of sand” ("The Deposit," Pebble Partnership).

At present, the land on which the Pebble Deposit is located is owned by the State of Alaska. However, all mineral rights to the Pebble deposit are held by Northern Dynasty Minerals Ltd, a mining company based in Vancouver, British Columbia. Northern Dynasty’s principal asset is the Pebble Mine Project ("Company Overview," Northern Dynasty Minerals Ltd.).

 

Original Proposed Determination & Section 404(c) of the Clean Water Act

In 2014, the EPA Office for the Pacific Northwest (Region 10) published a Notice of Proposed Determination, filed under the Clean Water Act. The Proposed Determination was to “restrict the use of certain waters in the South Fork Koktuli River, North Fork Koktuli River, and Upper Talarik Creek watersheds (located within the larger Bristol Bay watershed) as disposal sites for dredged or fill material associated with mining the Pebble deposit.” The Notice of Proposed Determination stated that the discharge of dredge or fill material into the nearby network of streams, lakes and wetlands “would result in complete loss of fish habitat due to elimination, fragmentation, and dewatering of streams, wetlands, and other aquatic resources. In addition, water withdrawal and capture, storage, treatment, and release of wastewater associated with the mine would significantly impair the fish habitat functions of other streams, wetlands, and aquatic resources.”

The EPA determined that the sum of these impacts could result in “unacceptable adverse effects on fishery areas (including spawning and breeding areas),” and it was not “demonstrated to the satisfaction of EPA Region 10 that no unacceptable adverse effect(s) will occur.” Section 404(c) of the Clean Water Act authorizes the EPA to “prohibit, restrict, or deny the use of any defined area in waters of the United States for specification as a disposal site” when “unacceptable adverse effects” are expected on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. While a section 404(c) review process is ongoing, the Army Corps of engineers can not issue a final decision on a permit to allow dredged or fill material to be discharged into US waters.

A two-month public comment period was held from July 21-Sept 19 2014, and received over 670,000 written comments. Over 830 community members attended 7 hearings in southwest Alaska during the week of August 11, 2014, delivering over 300 oral statements.

 

Pebble Limited Partnership v. EPA Lawsuit

In response to the Proposed Determination, the Pebble Limited Partnership filed litigation against the EPA. The case challenged the EPA’s “interpretation that it has the statutory authority to conduct a review... in order to veto mining-related activities on State land currently open to mining, even though no permit applications for mine development have been filed” (Geraghty & Heese, Pebble Limited Partnership v. United States Environmental Protection Agency).  

On May 11, 2017 the EPA entered into a settlement agreement with Pebble Limited Partnership, which ended litigation. The settlement agreement allows Pebble Limited Partnership to apply for a Clean Water Act dredge and fill permit from U.S. Army Corps of Engineers before the EPA can specify restrictions to the discharge of dredged and fill material associated with mining. Specifically, the EPA must wait 48 months from the settlement date - or until the U.S. Army Corps of Engineers issues its final environmental impact statement -before it issues a determination. As a result, EPA has agreed to initiate withdrawing the current Proposed Determination within 60 days of the settlement. Other terms of the settlement include the Pebble Limited Partnership dismissing all lawsuits against the EPA, the Pebble Limited Partnership agreeing to withdraw and not file any more Freedom of Information Act requests or lawsuits regarding Bristol Bay for a specified period, and that the EPA may use the scientific Bristol Bay Watershed Assessment without any limitation.

 

 

THE DEBATE:

Against Withdrawal (pro-Determination)

Within a few hours after the EPA announced its plans to withdraw its 2014 Proposed Determination, the National Resources Defense Council put out a statement that reflected the frustration not only of many environmental groups and NGOs, but also of Bristol Bay residents, Native Alaskan communities, and commercial fishermen: “First, the facts have not changed… Second, the science has not changed… Most important, the opposition has not changed.” So what are the facts, the science, and the opposition?

To quote the EPA’s own publication of the 2014 Proposed Determination in the Federal Register,  “After three years of study, two rounds of public comment, and independent, external peer review,” the EPA determined that “the extraction, storage, treatment, and transportation activities associated with” Pebble Mine operations “would pose significant risks to the unparalleled ecosystem that produces one of the greatest wild salmon fisheries left in the world. In simple terms, the infrastructure necessary to mine the Pebble deposit jeopardizes the long-term health and sustainability of the Bristol Bay ecosystem.” Even with under smallest-scale mining scenario, this includes total habitat losses of “more than 1,200 acres of wetlands, lakes and ponds,” the equivalent of “more than 350 football fields.” The size of the mining operations is expected to be so expansive because (1) low-grade mineral deposits like the Pebble deposit require the processing of large quantities of raw material, and (2) none of the necessary infrastructure currently exists to contain hazardous mining waste, such as a power plant, deep-water harbor, roads, pipelines, and multiple tailings dams.

Under Section 404(c) of the Clean Water Act, the EPA is authorized to prohibit or otherwise restrict the use of a any waters as a disposal site after it determines that the discharge of dredged or fill material will have an “unacceptable adverse effect” on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. The EPA asserts that it has used this authority “judiciously and sparingly,” having completed only 13 Section 404(c) actions in the 42 years since the Clean Water Act was established. The most recent prior use of Section 404(c) actions was in 2011, to withdraw the use of certain streams and wetlands within West Virginia, "as a disposal site for dredged or fill material in connection with construction, operation, and reclamation" of a surface mining operation (Final Determination of the Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, WV).

Adult sockeye salmon

Source: Environmental Protection Agency

The long-term health and sustainability of the Bristol Bay ecosystem is critical enough for the EPA to use its Section 404(c) authority because the ecosystem provides “unparalleled” ecological, social and economic value. The watershed boasts “salmon diversity and productivity unrivaled anywhere in North America,” which contributes to thriving commercial and sport fisheries, Alaska Native communities, and tourism. The sockeye and Chinook salmon runs are some of the world’s largest and they are also entirely wild, making Bristol Bay “remarkable as one of the last places on Earth with such bountiful and sustainable harvests of wild salmon.” “The Bristol Bay watershed's ecological resources generated nearly $480 million in direct economic expenditures and sales and provided employment for over 14,000 full- and part-time workers in 2009” The commercial salmon fishery comprises 62.5% of this direct economic expenditures and sales, and 78.6% of the employment. The watershed supports “a more than 4,000-year-old subsistence-based way of life for Alaska Natives.” In a letter sent by tribal government representatives of the EPA’s Regional Tribal Operations Committee representing the Bristol Bay area, the representatives cite how salmon support “ a traditional way of life that has endured for millennia and thrives today. EPA has a trust responsibility to ensure that these communities are protected.”

Renewed opposition to the project includes the Sustaining Bristol Bay Fisheries (SBBF) project, an initiative by the United Tribes of Bristol Bay to collaborate directly with the commercial fishing industry (Lill & Dillingham, Alaska Public Media), and a citizens initiative for the 2018 ballot that would add protections for salmon habitat in the face of big projects like the proposed Pebble mine (Herz, N. Alaska Dispatch News).

 

In Favor of Withdrawal (anti-Determination)

The EPA’s issuance of a Proposed Determination in 2014 was described as “extraordinary conditions” by the Pebble Limited Partnership CEO because it could be described as outside of the “normal permitting and review process.” The EPA placed restrictions on mine development before a permit had been sought for the project; the Pebble Limited Partnership was not even given the opportunity “to present a detailed mine plan, file for permits, or initiate the state and federal permitting process” (“EPA Period for Public Comment Open Until Sept.19,” The Pebble Partnership).  

The Pebble Limited Partnership CEO also cited the importance of the mining project to the economic development of Alaskan communities, as “this project represents the potential for billions of dollars of investment, thousands of long-term, high-wage jobs and the potential for significant economic activity while at the same time providing revenue for local, state, and federal governments.” (“Pebble, EPA Reach Resolution in Long Standing Dispute,” The Pebble Partnership).

These economic benefits were quantified in a study completed by IHS Global Insight, an economic analysis and forecasting firm, which used ongoing engineering plans to serve as a proxy for a definitive development plan. The the construction phase of the project (years 1-5) would generate 16,175 jobs annually and the initial production phase (years 5-29) would generate 15,000 jobs annually; although only 4,725 and 2,890 employment positions, respectively, would be held by Alaskans. The remaining ~11,000 positions would be created in the lower 48 states. The mine would also generate approximately $726.7 million to $1.7 billion in total annual revenue from copper production. This would increase total US copper production by 20% above the 2011 production level, contributing to the Trump administration’s goal of advancing national resource extraction in order to decrease United States’ reliance on foreign imports.

In response to concerns raised by Alaskan communities, the CEO asserts that the Pebble Limited Partnership is introducing “several new initiatives in the coming year that will more clearly define how the project will benefit residents of Bristol Bay and Alaska. Our project will be significantly smaller with demonstrable environmental protections. Chief among these is protecting the important salmon resource in Bristol Bay.”

 

 

 
 
GLOSSARY:

EPA - Environmental Protection Agency

PLP - Pebble Limited Partnership. The Pebble Limited Partnership’s subsidiaries own the mineral claims to the Pebble mineral deposit. The Partnership is owned by Northern Dynasty Minerals Limited.

EPA Region 10 - The EPA has 10 regional offices across the country, each of which is responsible for several states, territories and/or special environmental programs. Region 10 covers the states of Idaho, Oregon, Washington, and Alask

Section 404(c) - A section of the Clean Water Act which authorizes the EPA to “prohibit, restrict, or deny the use of any defined area in waters of the United States for specification as a disposal site” when “unacceptable adverse effects” are expected to occur “on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas” ("Clean Water Act Section 404(c)," Environmental Protection Agency) 

Section 404 permit - “Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged or fill material into the waters of the United States, including wetlands. Activities in waters of the United States regulated under this program include fill for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports) and mining projects. Section 404 requires a permit before dredged or fill material may be discharged into waters of the United States” ("Section 404 Permit Program," EPA).

 

 

 

 

 


Sources:

Environmental Protection Agency. “Clean Water Act Section 404(c): Restriction of disposal sites.” Accessed July 23, 2017 at https://www.epa.gov/cwa-404/clean-water-act-section-404c-restriction-disposal-sites

Environmental Protection Agency. “Section 404 Permit Program.” Accessed July 23, 2017 at https://www.epa.gov/cwa-404/section-404-permit-program

Environmental Protection Agency. (2011, Jan. 19). "Final Determination of the Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, WV." Published in The Federal Register 76(12):3126-3128. 

Geraghty, M.C. & Heese, R.H. Motion to Intervene in Pebble Limited Partnership v. United States Environmental Protection Agency (District Court for the District of Alaska).

Herz, N. (2017, May 26). Habitat Protection would turn tables on miners. Alaska Dispatch News. Accessed from The Bristol Bay Times on July 23, 2017 at http://www.thebristolbaytimes.com/article/1721habitat_protection_would_turn_tables_on

IHS Global Insight. (May 2013). The Economic and Employment Contributions of a Conceptual Pebble Mine to the Alaska and United States Economies. Prepared for The Pebble Limited Partnership. Access on July 23, 2017 at https://corporate.pebblepartnership.com/files/documents/study.pdf

Letter from the EPA Region 10 Regional Tribal Operations Committee to Administrator Gina McCarthy. Accessed on July 23, 2017 at https://www.regulations.gov/document?D=EPA-R10-OW-2014-0505-1951

Lill, A & Dillingham, K. (2017, June 21). Advocates opposed to mining in Bristol Bay region ramp up summer outreach. Alaska Public Media. Accessed July 23, 2017 at http://www.alaskapublic.org/2017/06/21/advocates-opposed-to-mining-in-bristol-bay-region-ramp-up-summer-outreach/

Northern Dynasty Minerals Ltd. “Company Overview.” Accessed July 23, 2017 at http://www.northerndynastyminerals.com/ndm/CompanyOverview.asp

The Pebble Partnership. “Geography: The Deposit.” Accessed July 23, 2017 at https://www.pebblepartnership.com/geology.html#section-deposit

The Pebble Partnership. (August 22, 2014). “EPA Period for Public Comment Open until Sept. 19.” Accessed on July 23, 2017 at https://corporate.pebblepartnership.com/news-article.php?s=epa-period-for-public-comment-open-until-sept-19

The Pebble Partnership. (May 12, 2017). “Pebble, EPA Reach Resolution in Long Standing Dispute.” Accessed on July 23, 2017 at https://corporate.pebblepartnership.com/news-article.php?s=pebble-epa-reach-resolution-in-long-standing-dispute

 

 

 

 

 

 

 

Contributors: Assistant Professor, Aquatic Ecology; PhD Candidate, Aquatic & Fishery Sciences; PhD Student, Aquatic and Fishery Sciences; MS Student, Aquatic and Fishery Sciences. 

REVIEW OF CERTAIN NATIONAL MONUMENTS

notice

 

Title: Review of Certain National Monuments Established Since 1996; Notice of Opportunity for Public Comment

Docket ID: DOI-2017-0002

Agency: DOI - Office of the Secretary

Comments Close: July 10, 2017

 

PURPOSE: 

The purpose for this notice is to review certain National Monuments in order to implement Executive Order 13792.  The Secretary of the Interior will use the review to "determine whether each designation or expansion conforms to the policy stated in the Executive Order and to formulate recommendations for Presidential actions, legislative proposals, or other appropriate actions to carry out that policy." The notice calls for public comments that address factors the Secretary should consider for the review.

 

 

CONTEXT: 

Executive Order 13792 directs the Secretary of the Interior to review all Presidential designations or expansions of designations of national monuments made since January 1, 1996 under the Antiquities Act, where the designation (before or after expansion) covers more than 100,000 acres, or where the Secretary determines that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders.

 In particular, the Secretary is directed to consider whether reservations of land “not exceed the smallest area compatible” called for in the Antiquities Act; “whether designated lands are appropriately classified under the [Antiquities] Act as ‘historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest’”; the effects of designation as it relates to the multiple-use policy section of the Federal Land Policy and Management Act; and “such other factors as the Secretary deems appropriate.”

Note that the period for public comment for the review of Bears Ears National Monument in Utah is closed as of May 26th, 2017.

 

 

NOTICE DETAILS:

The national monuments under review include 20 areas over 100,000 acres in Arizona, California, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, and Washington. It also includes the Katahadin Woods and Waters National Monument in Maine, which was determined to be a recently established National Monument that was created where “the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders”. The Secretary will also take comments pertaining to five Marine National Monuments under review as directed by Section 4 of Executive Order 13795, “Implementing an America-First Offshore Energy Strategy”. A full list of the National Monuments under review is available on the designated site at regulations.gov.
 

The Department of the Interior invites comments to inform the review of the National Monuments and Marine National Monuments of interest. The Department of the Interior “seeks public comments related to: (1) whether national monuments in addition to those listed above should be reviewed because they were designated or expanded after January 1, 1996 ‘without adequate public outreach and coordination with relevant stakeholders’; and (2) the application of factors (i) through (vii) [of Executive Order 13792] to the listed national monuments or to other Presidential designations or expansions of designations meeting the criteria of the Executive Order." Those factors are: 

(i) The requirements and original objectives of the Act, including the Act's requirement that reservations of land not exceed “the smallest area compatible with the proper care and management of the objects to be protected”;

(ii) whether designated lands are appropriately classified under the Act as “historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest”;

(iii) the effects of a designation on the available uses of designated Federal lands, including consideration of the multiple-use policy, as well as the effects on the available uses of Federal lands beyond the monument boundaries;

(iv) the effects of a designation on the use and enjoyment of non-Federal lands within or beyond monument boundaries;

(v) concerns of State, tribal, and local governments affected by a designation, including the economic development and fiscal condition of affected States, tribes, and localities;

(vi) the availability of Federal resources to properly manage designated areas; and

(vii) such other factors as the Secretary deems appropriate.

 

Contributor: PhD Student, Quantitative Ecology and Management

PERMITS FOR MARINE MAMMAL TAKE DURING SEISMIC SURVEYS FOR OIL AND GAS EXPLORATION IN THE ATLANTIC OCEAN

NOTICE

 

Title: Taking of marine mammals incidental to specified activities; taking marine mammals incidental to geophysical surveys in the Atlantic Ocean.

Docket ID: NOAA-NMFS-2017-11542

Agency: DOC-NOAA, National Marine Fisheries Service

Comments Close: July 21, 2017 (extension from original close date July 6, 2017)

 

PURPOSE: 

'Five applicants propose to conduct deep penetration seismic surveys using airgun arrays... Seismic surveys are one method of obtaining geophysical data used to characterize the subsurface structure, in this case in support of hydrocarbon exploration.' Company-specific plans are available in the original text of the notice. 'All companies requested authorization for the incidental harassment of marine mammals,' which will cover 'the statutory maximum of one year from the date of issuance.'

 

 

CONTEXT: 

This document provides notice of the proposed authorization of “take” of marine mammals for five separate companies. The National Marine Fisheries Service (NMFS) has grouped these authorizations together 'because the specified activity, specified geographic region, and proposed dates of activity are substantially similar for the five separate requests for authorization;' however, they do 'consider the potential impacts of the specified activities independently and make preliminary determinations specific to each request for authorization.'

In this context, “take” refers to the harassment of marine mammals. Under the Marine Mammal Protection Act, “harassment is defined as: “Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).” NMFS can grant authorization for incidental take of marine mammals if they find that the taking 'will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses,' and if mitigation, monitoring and reporting of take meet requirements.

The authorization process was initiated when NMFS received individual applications from four companies between August 18, 2014, and September 5, 2015. NMFS posted the applications for public review and sought public input in July of 2015. A fifth company applied after this comment period, so was published separately for public comment.

After the public comment period closed, NMFS received revised versions of several applications, and determined that 'these applications are adequate and complete at this time and are substantially similar to other applications previously released for public review.'

In addition to authorization under the Marine Mammal Protection Act, the seismic survey proposals were subject to a required Programmatic Environmental Impact Statement by the Bureau of Ocean Energy Management, with participation by NMFS. Under the National Environmental Policy Act, programmatic environmental impact statements evaluate the effects of broad proposals or planning-level decisions.

 

 

NOTICE DETAILS:

Finalization of the National Marine Fisheries’ Service proposal will issue incidental harassment authorizations for the take of marine mammals during seismic survey activities by five companies that 'provide services, such as geophysical data acquisition, to the oil and gas industry.' The proposed seismic surveys utilize air guns for hydrocarbon exploration 'within the US Exclusive Economic Zone from Delaware to approximately Cape Canaveral, Florida,' in the Bureau of Ocean Energy Management’s Mid-Atlantic and South Atlantic planning areas.

'The five applicants propose to conduct deep penetration seismic surveys using airgun arrays as an acoustic source. Seismic surveys are one method of obtaining geophysical data used to characterize the subsurface structure, in this case in support of hydrocarbon exploration. The proposed surveys would be 2D surveys, designed to acquire data over large areas.'

The temporal extent of the survey activities vary by company, ranging from 155 days (CGG) to 208 days (Western) of seismic operations. During each day, operations would typically occur for the full 24 hours.

Mitigation plans are described fully in the notice. Some measures that will be taken include 'monitoring by independent, dedicated, trained marine mammal observers' as well as acoustic monitoring.  NMFS 'also include measures that might not be required for other activities (e.g., time-area closures specific to the proposed surveys discussed here) but that are warranted here given the proposed spatiotemporal scope of these specified activities and associated potential for population-level effects and/or take of large numbers of individuals of certain species.' Additionally, exclusion zones will be in effect for all marine mammals except small dolphins under certain circumstances. 'An exclusion zone is a defined area within which occurrence of a marine mammal triggers mitigation action intended to reduce potential for certain outcomes, e.g., auditory injury. If a marine mammal appears within, enters, or appears on a course to enter this zone, the acoustic source must be shut down (i.e., power to the acoustic source must be immediately turned off).'

Request for Comments: NMFS is specifically asking for comments that are 'relevant to marine mammal species that occur in U.S. waters of the Mid- and South Atlantic and the potential effects of geophysical survey activities on those species and their habitat.' Any 'comments indicating general support for or opposition to hydrocarbon exploration or any comments relating to hydrocarbon development (e.g., leasing, drilling) are not relevant to this request for comments and will not be considered.'

 

 

THE DEBATE: 

Environmental groups (e.g. the NRDC, Oceana, National Geographic) along with many scientists have come out against these seismic surveys because of the potential impact on marine life. Several scientific groups have written to the presidential administration since this permitting process was initiated. In 2014, 75 marine scientists sent a letter to the Obama administration expressing concern of “significant, long-lasting, and widespread” harm to East Coast marine mammal and fish populations. According to these scientists, “The Interior Department’s decision to authorize seismic surveys along the Atlantic coast is based on the premise that these activities would have only a negligible impact on marine species and populations. Our expert assessment is that the Department’s premise is not supported by the best available science. On the contrary, the magnitude of the proposed seismic activity is likely to have significant, long-lasting, and widespread impacts on the reproduction and survival of fish and marine mammal populations in the region.” Another letter from a different group of scientists in 2016 specifically addressed concerns about the endangered North Atlantic right whale population in the region.

While impacts on marine mammals tend to generate the most attention in the media, “seismic surveys have been shown to displace commercial species of fish, with the effect in some fisheries of dramatically depressing catch rates. Airguns can also cause mortality in fish eggs and larvae, induce hearing loss and physiological stress, interfere with adult breeding calls, and degrade anti-predator response: raising concerns about potentially massive impacts on fish populations. In some species of invertebrates, such as scallops, airgun shots and other low-frequency noises have been shown to interfere with larval or embryonic development.” To this end, various fishing groups and Fishery Management Councils (South, Mid-Atlantic and New England) have also expressed concern about the seismic surveys. According to a news release from Oceana, there are “125 East Coast municipalities, over 1,200 elected officials, numerous commercial and recreational fishing interests, and an alliance representing over 41,000 businesses and 500,000 fishing families that have publicly opposed offshore drilling and/or seismic air-gun blasting."

A recently published peer-reviewed paper in Nature Ecology and Evolution has caused further concern among scientists and environmental groups. In a statement about the study, the lead author explained: “Zooplankton underpin the health and productivity of global marine ecosystems and what this research has shown is that commercial seismic surveys could cause significant disruption to their population levels.” 

 

On the other hand, the oil and gas industry are pushing for the surveys in order to map potential drilling sites. This would contribute to the fulfillment of President Trump’s April executive order aimed at expanding drilling in the Arctic and Atlantic Oceans. Exploratory seismic surveys are necessary for future drilling operations in this region because no surveys have been conducted in the area for at least 30 years. Oil and gas companies will use the information obtained by the seismic surveys “to make informed business decisions regarding oil and gas reserves, engineering decisions regarding the construction of renewable energy projects, and informed estimates regarding the composition and volume of marine mineral resources. This information would also be used to ensure the proper use and conservation of OCS energy resources and the receipt of fair market value for the leasing of public lands.” (Bureau of Ocean Energy Management).

The motivation for the aforementioned executive order is to reduce the United States’ dependence on foreign oil imports.  According to the US Energy Information Administration, while US net imports (net imports = imports – exports) of petroleum from foreign countries in 2015 were at the lowest level since the 1970s, net imports were still approximately 25% of US petroleum consumption.

The National Marine Fisheries Service has address scientific concerns about the impacts of the seismic surveys on marine life by using the Programmatic Environmental Impact Statement, existing seismic mitigation protocols, and available scientific literature to adjust the suite of mitigation measures proposed by the applicants in order to “reflect what we believe to be the most appropriate suite of measures to satisfy the requirements of the [Marine Mammal Protection Act].”

The Programmatic Environmental Impact Statement (PEIS) "considers potential impacts on 13 different types of resources (e.g., marine mammals, fish, benthic communities, and cultural resources), as well as cumulative effects from oil and gas exploration and other human activities in these areas. The PEIS also considers the potential effects from 11 different ‘impact producing factors’ on these resources. Of these factors, sound from geophysical survey sources presents the highest potential for impacts.” (Bureau of Ocean Energy Management). In response, the Bureau of Ocean Energy Management worked with NMFS and several other agencies to develop a comprehensive mitigation strategy that, according to their report, focuses on “(1) avoiding injury from exposure of air gun sound sources to marine animals in close proximity to the source; and (2) reducing the potential for behavioral disruption.” The preferred course of action identified in the PEIS includes “aggressive” mitigation measures.

The industry groups themselves not only cite the extensive mitigation measures as reason to move forward, but also point out the fact that seismic surveys have been conducted in the US and around the world for decades with few negative impacts (per 2014 testimony by Dr. James Knapp for the U.S. House Subcommittee on Energy and Mineral Resources Oversight).

 

 

 

 

 

Contributors: M.S. Student in Arctic Ecology, M.S. Student in Aquatic & Fishery Sciences

 

 

 

 

 

 

Sources

Bureau of Ocean Energy Management. Atlantic Geological and Geophysical (G&G) Activities Programmatic Environmental Impact Statement (PEIS). https://www.boem.gov/Atlantic-G-G-PEIS/

Clark, C. et al. (2016, April 14). A letter to President Obama on the impact of seismic surveys on whales. Retrieved from: https://nicholas.duke.edu/about/news/letter-to-obama-seismic-effects-whales

Daly, M. (2017, June 5). Trump admin proposes seismic surveys for Atlantic drilling. Baltimore Sun. Retrieved from http://www.baltimoresun.com/news/maryland/environment/bs-md-atlantic-offshore-drilling-20170605-story.html

Huelsenbeck, M. et al. (2014, Feb. 20). Use the best available science before permitting seismic surveys for offshore oil and gas in the Mid- and South Atlantic. Retrieved from: http://oceana.org/sites/default/files/Marine_Scientist_Sign_on_Letter_Use_Acoustic_Guidelines_for_Seismic_Surveys_in_Mid_and_South_Atlantic.pdf

McCauley, RD et al. (2017) Widely used marine seismic survey air gun operations negative impact zooplankton. Nature Ecology & Evolution 1. doi:10.1038/s41559-017-0195.

U.S. Energy Information Administration. Frequently Asked Questions. https://www.eia.gov/tools/faqs/faq.php?id=32&t=6

Knap, J.H. (10 January 2014(.  “The Science behind Discovery: Seismic Exploration and the Future of the Atlantic OCS." Hearing for the U.S. House Subcommittee on Energy and Mineral Resources Oversight. http://docs.house.gov/meetings/II/II06/20140110/101594/HHRG-113-II06-Wstate-KnappJ-20140110.pdf

National Resources Defense Council. (2017, June 5). Trump administration prpooses seismic testing for oil drilling in Atlantic. https://www.nrdc.org/trump-watch/trump-administration-proposes-seismic-testing-oil-drilling-atlantic

 

 

PROPOSED ANNUAL NORTHERN FUR SEAL SUBSISTENCE HARVEST NEEDS FOR 2017 - 2019

NOTICE

 

Title: Subsistence Taking of Northern Fur Seals on the Pribilof Islands; Summary of Fur Seal Harvests for 2014-2016 and Proposed Annual Subsistence Harvest Needs for 2017-2019

Docket ID: NOAA-NMFS-2017-0018

Agency: DOC-NOAA

Comments Close: June 16, 2017

 

PURPOSE: 

The National Marine Fisheries Service (NMFS) provides both summaries of past fur seal harvests by Alaska Natives and “proposes annual estimates of northern fur seal subsistence harvest on the Pribilof Islands for 2017-2019”. 

 

CONTEXT:

“The Eastern Pacific stock of northern fur seals (fur seals) is considered depleted under the Marine Mammal Protection Act.”  This means that any form of subsistence hunting is highly regulated. Lower and upper limits are established for communities relying on this resource. “If the harvest reaches the lower level and the Pribilovians have not met their subsistence harvest needs [the community] must obtain the concurrence of NMFS before harvesting up to the upper level."

“Based on the most recent fur seal stock assessment report (2016), NMFS estimates that the current abundance of the eastern Pacific fur seals stock is 648,534. The potential biological removal (PBR) level is 11,802 animals (Muto et al. 2016)"; this is the "maximum number of animals, not including natural mortalities, that may be removed from the stock while allowing the stock to reach or maintain its optimum sustainable population level."

The total annual fur seal subsistence harvests for St. Paul and St. George Island "have never exceeded the upper limit of the proposed subsistence need, and have only exceeded the lower limit three times; in 1991 on both islands and in 1993 on St. George." Reported harvest in 2016 for St. Paul was 309 animals and for St. George Island was 83 (Melovidov et al. 2017, Lekanof 2017).

“NMFS has already restricted the subsistence harvest of fur seals on the Pribilof Islands to sub-adult male fur seals less than 124.5 cm in length during a 47-day season (from June 23 to August 8) on the Pribilof Islands” to “(1) limit the take of fur seals to a sustainable level that provides for the subsistence requirements of Pribilovians, and (2) restrict taking by sex, age, location, and season to ensure conservation of the species.”

“The subsistence harvest of fur seals provides a local, affordable source of fresh and frozen meat for the communities' consumption. Fresh store-bought meat is not available on either St. Paul or St. George Islands. Subsistence hunting and fishing are the primary means by which the communities meet their dietary needs. No other fish and wildlife species are predictably available to replace fresh fur seal meat. In addition, marine mammals such as fur seals are the culturally-preferred meat resource for Aleuts and other coastal Alaska Natives.”

“NMFS has contacted the tribal governments of St. Paul and St. George Islands and their respective local Native corporations (Tanadgusix and Tanaq) about setting the next three years' harvest estimates and received and considered their input” as is required by Executive Order 1317 (Native Consultation).

For additional information, two Final Environmental Impact Statements (EIS) and one Draft EIS are available from the Alaska Fisheries Science Center

 

NOTICE ACTIONS:

Comments are invited on the proposed harvest levels for the Northern Fur Seals for the 2017-2019 seasons. 

The 2017-2019 harvest levels are unchanged from 2014-2016 (300 to 500 for St. George and 1,645 to 2,000 for St. Paul).

 

Contributor: M.S. Student, Arctic Ecology

TAKING MARINE MAMMALS INCIDENTAL TO U.S. NAVY LOW FREQUENCY ACTIVE SONAR OPERATIONS

NOTICE

 

Title: Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar

Docket ID: NOAA-HQ-2017-0037

Agency: DOC-NOAA, National Marine Fisheries Service

Comments Close: May 30, 2017

 

PURPOSE: 

The National Marine Fisheries Service has received a request from the U.S. Navy for authorization to take marine mammals, by harassment, incidental to conducting operations of Surveillance Towed Array Sensor System Low Frequency Active sonar in areas of the world's oceans (with the exception of Arctic and Antarctic waters and certain geographic restrictions), from August 15, 2017, through August 14, 2022. The Navy's activities are considered military readiness activities in accordance with the Marine Mammal Protection Act. In accordance with the Marine Mammal Protection Act, the National Marine Fisheries Service is requesting comments on its proposal to issue regulations to govern the incidental take of marine mammals by Level B harassment during the Navy's activities.

 

CONTEXT:

The Marine Mammal Protection Act of 1972 allows, upon request, the incidental take of marine mammals by U.S. citizens if certain findings are made and regulations are issued, or if the taking is limited to harassment. Under the Marine Mammal Protection Act, harassment is defined as "any act of pursuit, torment or annoyance which has the potential to either: a. injure a marine mammal in the wild, or b. disturb a marine mammal by causing disruption of behavioral patterns..." This proposed regulation involves both Level A and Level B harassment; Level A harassment has the potential to injure a marine mammal or marine mammal stock in the wild, whereas Level B harassment has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, but does not have the potential to injure a marine mammal or marine mammal stock in the wild.

This will be the National Marine Fisheries' Service's fourth rule making for the Surveillance Towed Array Sensor System Low Frequency Active sonar operations under the Marine Mammal Protection Act.

 

NOTICE ACTIONS:

For this fourth rule making, the Navy is proposing to conduct the same types of sonar activities in the proposed rulemaking as they have conducted over the past fourteen years in the previous three rule makings with the exceptions of updating the LFA sonar duty cycle from 20 percent to 7.5-10 percent based on historical data. In addition, the Navy is proposing a Preferred Alternative (Alternative 2) in their DSEIS that would transmit a maximum number of 255 hours of LFA sonar per vessel per year, as opposed to the previously authorized 432 hours of LFA sonar per vessel per year.

The Navy states that these training, testing, and routine military activities may expose some of the marine mammals present in the operational areas to sound from low-frequency active sonar sources. Because marine mammals may be harassed due to noise disturbance incidental to the use of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS) Low Frequency Active sonar during training, testing, and routine military operations, the Navy utilized the most recent National Marine Fisheries Service acoustic Technical Guidance (NMFS 2016) to analyze potential takes of marine mammals. The Navy requests authorization to take individuals of 104 species of marine mammals by Level B Harassment. Further, the Navy states that the probability of taking marine mammals by Level A Harassment is less than 0.001 percent. However, because the probability is not zero, the Navy has included a small number of Level A harassment in its authorization request as a precautionary measure.

 

The Navy will also be including a suite of proposed mitigation measures for marine mammal take that could potentially be affected during SURTASS Low Frequency Active sonar operations.

 
 

Contributor: PhD Candidate, Aquatic and Fishery Sciences

PETITION TO ESTABLISH SAN JUAN ISLAND PROTECTION ZONE FOR SOUTHERN RESIDENT KILLER WHALES

PROPOSED RULE

 

Title: Endangered and Threatened Species; Petition for Rulemaking To Establish a Whale Protection Zone for Southern Resident Killer Whales

Docket ID: NOAA-NMFS-2017-00437

Agency: DOC-NOAA, National Marine Fisheries Service

Comments Close: April 13, 2017

 

PURPOSE:

National Marine Fisheries Service (NMFS) received a petition for rulemaking to establish a whale protection zone to reduce noise and disturbance in the San Juan Islands, Washington, to support recovery of endangered Southern Resident killer whales. The whale protection zone proposed would extend three-quarters of a mile offshore of San Juan Island. NMFS is requesting comments on the petition and will consider all comments and available information when determining whether to accept the petition and proceed with the suggested rulemaking. 

 

CONTEXT:

The National Marine Fisheries Service (NMFS) proposed and finalized vessel traffic regulations that prohibit parking vessels in the path of whales and included an approach rule with the whales. A protected area was originally included in these regulations, but was eventually excluded because of the degree of public opposition. 

Since these regulations, NMFS has conducted a public workshop and communicated with interested groups (including the petitioners). NOAA's Northwest Fisheries Science Center has conducted further research on the impact of vessel traffic on Southern Resident killer whales.

The current petition in question was filed in November 2016 by the Orca Relief Citizen's Alliance, Center for Biological Diversity, and Project Seawolf. The area proposed by petitioners is similar to, but wider and longer than the protected area previously proposed by NMFS. Petitioners also propose that NMFS include a one quarter-mile wide buffer adjacent to the whale protection zone.

The petitioners base their arguments on the Endangered Species Act (ESA). ESA prohibits any “take” on endangered populations. The petitioners argue that “take”, which can be defined as harassment, harm, pursuit, or any attempt to engage, occurs when commercial and private motorized vessels follow the Southern Resident Killer Whales. If this proposed rule were accepted, NMFS would utilize authorities under the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA).

 

NOTICE ACTIONS:

The National Marine Fisheries Service is soliciting information from the public, governmental agencies, Tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the petitioned action. They request that all information be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications. Comments are specifically invited on the following subjects:

  1. If there is the need for regulations to establish a whale protection zone (and if it is advisable).
  2. Any scientific and commercial information regarding the effects of vessels on killer whales and their habitat.
  3. If the proposed geographic scope of the regulated whale protection zone is appropriate.
  4. If there are alternative management options for regulating vessel interactions with killer whales.
  5. Any information regarding potential economic effects of regulating vessel interactions.
  6. Any additional relevant information that should be considered prior to the agencies accepting the petition.
 
 

Contributor: M.S. Student, Arctic Ecology