19922 Title 15-Commerce and Foreign Trade CHAPTER IX-NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE PART 921-ESTURAINE SANCTUARY GUIDELINES The National Oceanic and Atmospheric Administration (NOAA) March 7. 1974, proposed guidelines (15 CFR Part $21) pursuant to section 312 of the Coastal Zone Management Act of 1972 (Pub. L. 92-583, 85 Etat. 1280), hereinafter referred to as the "Act," for the purpose of establishing the policy and procedures for the nomination, selection and managemmat ng estuarine sanctuaries. Written me: ts were to be submitted to the Office of Coastal Environment (now the Offre of Coasta' Zone Manager.ont National Gear and Atmospheric Arimbal ion, fore April 8, 1974, end const maka beza given thes com mente, management programa i, Wias use of the resources of the cast"" ane, and the Act authorizes Federal gown to the States for these purposes (ectious 305 and 306). In addition, under section 312 of the Act. the Secretary of Commerce is authorized to make available to a coastal State grants of up to 50 per centum of the cost of acquisition, development and operation of estuarine sanctuaries. The guidelines contained in this part are for grants under section 312. In general, section 312 provides that grants may be awarded to States on matching basis to acquire, develop and operate natural areas as estuarine sanctuaries in order that scientists and students may be provided the opportunity to examine over a period of time ecological relationships within the area. The purpose of these guidelines is to establish the rules and regulations for implementation of this program. RULES AND REGULATIONS the proposed regulations and presents the rationale for the responses made. Section 9212 Definitions. Three comments requested that the term “estuary” be defined. Although the term is defined in the Act and also in the regulations dealing with Coastal Zone Management Program Development Grants (Part 920 of this chapter) published November 29, 1973, it has been added to these regulations and broadened slightly to include marine lagoons with restricted freshwater input such as might occur along the south Texas coast. Two other comments requested that the "primary purpose" referred to in 921.2(b) be clearly defined. Although elaborated upon in § 921.3(a), for the purpose of clarity this change has been made. Section 921.3 Objectives and Imple mentation. Several comments suggested that the estuarine sanctuary program objectives were too narrowly defined and specifically that they should be broadaned to include the acquisition and preservation of unique or endangered estuaries for wildlife or ecological reasons. Although the Act (section 302) declares it the nation's policy to preserve, protect, develop, and where possible, to restore or enhance coastal resources, this is percered to be achievable through State actions pursuant to sections 305 and 305. While it is recognized that the creation of ar. estuarine sanctuary may in fact serve to preserve or protect an area or biologica! community, the legislative history of section 313 clearly indicates the ectuarine sanctuary program was not intended to duplicate existing broad purpose Federal preservation programs, such as might be accommodated by use of the Land and Water Conservation Fund Act. Instead, both in the Act as well as its legislative history, the objective is deaned as preserving representative estuarine areas for long-term research and educational uses. Three other comments suggested the objectives of the program should be enlarged to include the restoration of enVironmentally degraded areas. This, too. is perceived to be a State requirement separate from section 312. In addition, adequate authority for restoring degraded water areas now exists (for example, Pub. L. 92-500 in addition to No significant additional benefit would sections 302, 305 and 306 of the Act). appear to result from declaring an area an estuarine sanctuary for the purposes of restoration. The National Oceanic and Atmospheric Administration is publishing herewith the final regulations describing the procedures for applications to receive grants for estuarine sanctuaries under section 312 of the Act. The final regulations and criteria were revised from the proposed guidelines based on the comments reA few comments indicated that the ceived. A total of fifty (50) States, agenexamples of sanctuary use were too heavcies, organizations and individuals sub-ly weighted toward scientific uses to mitted responses to the proposed section 312 guidelines published in the FEDERAL REGISTER on March 7, 1974. Of those responses received, eight (8) of fered no comment or were wholly favor able as to the nature and content of the guidelines as originally proposed. Fortytwo (42) commentators submitted suggestions concerning the proposed section 312 guidelines. The following summary analyzes key comments received on various sections of the exclusion of educational uses. Public education concerning the value and benents of, and the nature of confict within the coastal zone, will be essential to the success of a coastal zone management program. The section has been changed to reflect an appropriate concern for educational use. Some commentators suggested changes in or additions to the speciâc examples of sanctuary uses and purposes. These examples were taken from the Senate and House Committee Reports and are considered sumcient to reflect the kinds of uses intended within an estuarine sanctuary. Several comments were received pertaining to 1921.3(c) involving the restrictions against overemphasis of destructive or manipulative research. Ten comments indicated that the section was too weak and would not provide sumcient long-term protection for the sanctuary ecosystem. Several commentators speciacally recommended deleting the words "would not normally be permitted" and inserting in their place "will not be permitted." In contrast. three respondents indicated that the potential use of estuarine sanctuaries for manipulative or destructive research was too restricted. and that these uses should be generally permitted if not encouraged. The legislative history of section 312 clearly indicates that the intent of the estuarine sanctuary program should be to preserve representative estuarine areas so that they may provide longterm (virtually permanent) scientiae and educational use. The uses perceived are compatible with what has been defined as "research natural areas." In an era of rapidly degrading estuarine environments, the estuarine sanctuary program will ensure that a representaLive series of natural areas will be available for scientific or educational uses dependent on that natural character, for example, for baseline studies, for use in understanding the functioning of natural ecological systems, for controls against which the impacts of development in other areas might be compared, and as interpretive centers for educational purposes. Any use, research or otherwise. which would destroy or detract from the natural system, would be inappropriate under this program. In general, the necessity of or benefit from permitting manipulative or destructive research within an estuarine sanctuary is unclear. While there is a legitimate need for such kinds of research, ample opportunity for manipulative or destructive research to assess directly man's impact or stresses on the estuarine environment exists now withbut the need for creation or use of an estuarine sanctuary for this purpose. In contrast. a clear need exists for natural dive research or research on altered areas to serve as controls for manipula systems. The section on manipulative research has been changed to reflect the concern for continued maintenance of the area as a natural system. However, the modider "normally" has been retained because, within these limits, it is not felt necessary to preclude all such uses; the occasion may rarely arise when because of a thoroughly demonstrated direct beneft, such research may be permitted. Several comments suggested that the program should include degraded estuarine systems, rather than be limited to areas which are "relatively undisturbed by human activities." Such areas would permit research efforts designed to restore an estuarine area. As indicated FEDERAL REGISTER, VOL. 39, NO. 108-TUESDAY, JUNE 4, 1974 above, an ample legislative mandate to restore environmentally degraded areas already exists; the beneâts to be derived from declaring such areas estuarine sanctuaries would be marginal. Indeed, it would appear that if restoration efforts cannot occur without estuarine sanctuary designation, then, given the limited resources of this program, such efforts would not be feasible. A few commentators suggested that the phrase (§ 921.3(e)) "if sumcient permanence and control by the State can be assured, the acquisition of a sanctuary may involve less than the acquisition of a fee simple interest" be more clearly defined. Explanatory language has been added to that section. Section 921.4 Zoogeographic Classification. Because the classification scheme utilized plants as well as animals, two commentators suggested that zoogeographic be changed to biogeographic. This change is reflected in the final regulations. One comment suggested that selection of sanctuaries should depend on the pressures and threats being brought to bear upon the natural areas involved even if this meant selecting several sanctuaries from one classification and nons from another. The legislative history of section 312 clearly shows the intent to select estuarine sanctuaries on a rational basis which would refect regional differentis tion and a variety of ecosystems. The biogeographic classification system, which refects geographic, hydrographic, and biologic differences, fulfils that intention. A scheme which would abandon that system, or another similar one, and would not fulfil the requirements of providing regional differentiation and variety of ecosystems, would not be consistent with the intended purpose of the Act. A few comments received suggested that the biogeographic classification scheme be enlarged by the addition of a new class refecting an area or State of special concern or interest to the spondent. (No two commentators gested the same area.) It is felt adequate national representation is provided by the biogeographic scheme proposed, and that the changes offered we in most cases examples of sub-categories that might be utilized. One comment suggested a speciac change in the definition of the "Great Lakes" category. Portions of that suggestion have been incorporated into the final rules. Two commentators requested assurance that sub-categories of the biogeographic scheme will in fact be utilized. The final language substitutes will be developed and utilized" for "may be developed and utilized.” Section 921.5 Multiple Use. Several comments were received pertaining to the multiple use concept. Three commentators suggested that the multiple use directive was contrary to or absent from the Act and should be omitted. Ten respondents felt the concept should be more explicitly defined and restricted so RULES AND REGULATIONS that the primary purpose of the sanc- 19923 Grants. Two comments requested that the souros and nature of acceptable matching funds should be explicitly identifed. OMB Circular A÷102 generally defines and identifies legitimate "match" for Federal grant projects. In general, reference should be made to that document. However, the section has been expanded in response to some specific and frequent questions. While recognizing that it is not always possible to accommodate more than a single use in an environmentally sensitive area, it is not the intention to un- Two comments stressed the need for necessarily preclude the uses of sanc- increased availability of research funds tuary areas where they are clearly com- to adequately utilize the potential of espatible with and do not detract from the tuarine sanctuaries. While not an aplong-term protection of the ecosystem.propriate function of the estuarine sancfor scientific and educational purposes. tuary program, the Office of Coastal Zone The language of § 921.5 has been changed Management is discussing the necessity accordingly. of adequate funding with appropriate agencies. Section 921.6 Relationship to Other The relationship between the two paces. need for swift action by both State and A few co ments sought reassurance SUBPART BAPPLICATION FOR GRANTS indicated uncertainty about which State vidual States may vary in the choice of Appropriate language has been in- Section 921.11 Initial Application for One comment suggested that the term "legal description" of the sanctuary (921.11(a)) is not appropriate for all categories of information requested. The word "legal", has been omitted. Those reviewers indicated that the Act as no basis for consideration of \-scenomais impacts (§ 921.11 (1) ) that this criterion seemed inapproja selecting estuarine sanctuaries. arently these reviewers misunderad the intention of this requirement. nisforamation in this section is necesfor preparation of an environmental et statement which will be prepared want to NEPA. Although required in the application, such information is not a part of the selection criteria, which are addressed in Subpart C, § 921.20. One similar comment was received with regard to consideration of existing and potential uses and conflicts (§ 921.selection criteris (1921.20 (h)). It is in11(h)). This item is also discussed under tended that this criterion will only be considered when choosing between two or more sanctuary applications within the same biogeographic category which are of otherwise equal merit. One comment drew attention to an apparent typographic error in § 921.11 (m) where the term "marine estuaries" seems out of context. This has been corrected. Two commentators suggested that public hearings should be required in the development of an estuarine sanctuary application. Although such a hearing is deemed desirable by the Office of Coastal Zone Management, it would not always seem to be necessary. The language in 920.11(1) has been changed to reflect the sincere concern for the adequate involvement of the public, which is also addressed under a new § 920.21. One respondent suggested that a new section be added requiring the applicant to discuss alternative methods of acquisition or control of the area, including the designation of a marine sanctusanctuary. A new section (§ 920.11(n)) ary, in place of establishing an estuarine has been added for this purpose. Section 921.12 Subsequent Application for Development and Operation Grants. Three commentators expressed concern that the intent of § 921.12 be more clearly expressed. Appropriate changes have been made. FEDERAL REGISTER, VOL. 39, NO. 108 TUESDAY, JUNE 4, 1974 19924 One com was made that a provision should be ineinded to use existing Federally owned land for the purpose of the estuarine sanctuary program. A tion has been added for that purpose. Section 921.20 Criteria for Selection. One comment suggested that the consideration of conflict with existing or potential competing uses should not be included as a salection criterion. As d cussed above, this criterion is considered appropriate. Another reviswer suggested the addion of a new criterion, consideration of “The used to protać a particular estua from harmful developmerŠ.” cussed earlier, this criterion is not sidered appropriate. Suck a basis determining selection world lead to reactionary, random series of estuarios sanctuaries, rather tim 1 thy rationaly chosen representat.ve ́sories Blandat od in the legislative history. Two reviewers commented that: limitation on the Federal sauss ($2,000,000 for each sanctuary) was too low and would severely restrics the usefulness of the program. However, this limite is provided by the Act. RULES AND REGULATIONS Two commentators expressed concern for enforcement capabilities and activiHes to ensure protection of the estuarine sanctuaries. A new section has been added which addresses this issue. Finally, one suggestion was received that a vehicle for change in the management policy or research programs should be provided. A new section has been added for that purpose. Accordingly, having considered the Effective date: June 3, 1974. Another commentator sizgested that ́121.4 {922.20(g) was unnecesr ziły restrictive in that it might prevede selecting an estuarine sanctuary in an ares adjacent existing preserved lands where the conjunction might be mutually bengd. . 121.10 dal. The language of i 921.30(8) not preclude such action, but has changed to specidcally permit this sibility. Two commen tors inquired whether the reference to a “draft" environmental impact statement (§ 921.20, last parsgraph) indicated an intention to avoid further compliance with NEPA. It is Arm intention of the Offes of Co 121.11 ROBERT M. WHITE. Subpert A General Policy and objectives. Objectives and implementation Biogeographie classifcation. Multiple usS. Zelationship to other provisions the Ars and wo marine sanctuaries. 921.30 Subpart ComSelection Criteria Subpart D-Operation 121.30 General. Zone Management to fully comply in all 321.31 Changes in the sanctuary boundary, Three reviewers addressed the problems of providing adequate public parHeipation in the review and selection process In addition to the change in § 920.11(1), a new section has been added to address this issue. SUBPART DOPERAZION Section 921.30 General. One commen tator suggested that during contract negotiations, there should be a meeting between the applicant agency and posed sanctuary management team, representatives of the Office of Coastal Zone Management. The general provisions have been broadened to provide for this suggestion. Two comments were submitted which urged that some discretion be exercised in the use and access to the sanctuary by scientists and students. Two other comments were received which requested specifc protection for use by the general public. The guidelines have been changed to include these suggestions. One comment was received suggesting language to clarify | 921.30(g), This was incorporated into the guidelines. management policy or research $21.33 Program review. AUTHORIST: Sec. 312 of the Coastal Zone Subpart A-Ganerai The estuarine sanctuaries program will provide grants to States on a matching basis to acquire, develop and operate natural areas as estuarine sanctuaries in order that scientists and students may be provided the opportunity to examine over a period of time the ecological relationships within the ares. The purpose of these guidelines is to establish the rules and regulations for implementation of the program. § 921.2 Definitions. (a) In addition to the definitions found in the Act and in the regulations dealing with Coastal Zone Management Program Development Grafts published November 29, 1973 (Part 920 of this chapter) the term "estuarine sanctuary as defined in the Act, means a research area which may include any part or all of an estuary, adjoining transitional areas, and adjacent uplands, constituting to the extent feasible a natural unit, seš aside to provide scientists and students the opportunity to examine over a period of time the ecological relationships within the area. (b) For the purposes of this section, “estuary” means that part of a river or stream or other body of water having unimpared connection with the open where the seawater is measurably diluted with freshwater derived from land drain58. The term includes estuary-type areas of the Great Lakes as well as la goons in more arid coastal regions. (c) The term “multiple use" as used in this section shall mean the simultaneous utilization of an ares or resource for a variety of compatible purposes or to provide more than one beneit. The term implies the long-term, continued uses of such resources in such a fashion that other uses will not interfere with, diminish or prevent the primary purpose, which is the long-term protection of the ares for scientific and educational use. § 921.3 Objectives and implementation of the program. (a) General. The purpose of the tuarine sanctuaries program is to creat natural field laboratories in which ather data and make studies of natural and human processes occurri within the estuaries of the coastal This shall be accomplished by the est Hehment of a series of estuarine tuaries which will be designated so at least one representative of each of estuarine ecosystem will endure into the future for scientide and educational purposes. The primary use of estuaring anctuaries shall be for research educational purposes, especially to vide some of the information essential coastal zone management decision-making. Specific examples of such purposes and uses include but are not limited to: (1) To gain a thorough understanding of the ecological relationships within the estuarine environment. (2) To make baseline ecological measurements. (3) To monitor significant or vital changes in the estuarine environment. (4) To assess the effects of man's stresses on the ecosystem and to forecast and mitigate possible deterioration from human activities. (5) To provide a vehicle for increasing public knowledge and awareness of the complex nature of estuarine system their values and benedts to man and ture, and the problems which confront them. (b) The emphasis within the program will be on the designation as estuarine sanctuaries of areas which will serve as natural Caid laboratories for studies and investigations over an extended period. The ares chosen as an estuarine sanctuary shall, to the extent feasible, include water and land masses constituting a natural ecological unit. (c) In order that the estuarine sanc tuary will be available for future studies. research involving the destruction of any portion of an estuarine sanctuary which would permanently alter the nature of the ecosystem shall not normally be FEDERAL REGISTER, VOL 39, NO. 108 TUESDAY, JUNE 4, 1974 permitted. In the unusual circumstances where permitted, manipulative fald research shall be carefully controlled. No experiment which involves manipulative research shall be initiated until the ter mination date is specified and evidence given that the environment will be returned to its condition which existed prior to the experiment. (d) It is anticipated that most of the areas selected as sanctuaries will be relatively undisturbed by human activities at the time of acquisition. Therefore, most of the areas selected will be areas with a minimum of development, industry or habitation. (e) If sumcient permanence and control by the State can be assured, the acquisition of a sanctuary may involve less than the acquisition of a fee simple interest. Such interest may be, for example, the acquisition of a conservation easement, "development rights", or other partial interest suficient to assure the protection of the natural system. Leasing, which would not assure permanent protection of the system, would not be an acceptable alternative. 8921.4 Biogeographic classification. (a) It is intended that estuarine sanctuaries should not be chosen at random, but should redect regional differentiation and a variety of ecosystems so to cover all significant variations. To ensure adequate representation of all tuarine types reflecting regional differentiation and a variety of ecosystems; selections will be made by the Secretary from the following biogeographic classifications: 1. Arcadian. Northeast Atlantic south to Cape Cod, glaciated shoreline subJest to winter icing; well developed algal fors: boreal biota. 2. Virginian. Middle Atlantic coast from Cape Cod to Cape Hatteras: lowland streams, coastal marshes and muddy bottoms; characteristics transitional between 1 and 3: blots primarily temperate with some boreal representatives. 3. Carolinian. South Atlantic coast, from Cape Hatteras to Cape Kennedy: extensive marshes and swamps; waters turbid and productive: biota temperate with seasonal tropical elements. 4. West Indian. South Florida coast from Cape Kennedy to Cedar Key; and Caribbean Islands: ahoreland low-lying limestone: calcareous sands, maris and coral reefs: coastal marshes and mangroves; tropical biota. 6. Louisianian. Northern Gulf of Mexico, from Cedar Key to Mexico; characteristics of 3, with components of 4; strongly induenced by terrigenous factors; biota primarily temperate. 6. Californien. South Pacific coast from Mexico to Cape Mendocino; shoreland infuenced by coastal mountains, rocky coasts with reduced fresh-water runof; general absence of marshes and swamps; blots temperate. 7. Oolumbian. North Pacific coast from Cape Mendocino to Canada; mountaineous shoreland; rocky coasts; extensive algal communities: biota primarily temperate with some boreal. 8. Flords. South coast Alaska and Aleutians; precipitous mountains, deep estuaries, ome with glaciers; shoreline heavily in 11. Great Lakes. Great Lakes of North America: blur-dune or rocky, glaciated shoreline; limited wetlands; freshwater only: blots a mixture of boreal and temperate species with anadromous species and some marine invaders. (b) Various sub-categories will be developed and utilized as appropriate. 921.5 Multiple use. tuarine sanctuaries is to provide long(a) While the primary purpose of esterm protection for natural areas so that they may be used for scientific and educational purposes, multiple use of eat arine sanctuaries will be encouraged to the extent that such use is compatible with this primary sanctuary purpose. The capacity of a given sanctuary to ac commodate additional uses, and the kinds and intensity of such use, will be determined on a case by case basis. While it is anticipated that compatible may generally include activities such as low intensity recreation, fishing, hunt ing. and wildlife observation, it is reas ognized that the exclusive use of an area for scientiae or educational purposes may provide the optimum benent to coastal zone management and resource use and may on occasion be necessary. (b) There shall be no effort to balance or optimize uses of an estuarine sanctu ary on economic or other bases. All additional uses of the sanctuary are clearly secondary to the primary purpose and uses, which are long-term maintenance of the ecosystem for scientific and educational uses. Non-compatible uses, including those uses which would cause signincant short or long-term ecological change or would otherwise detract from or restrict the use of the sanctuary as a natural feld laboratory, will be prohibited. 8921.6 Relationship to other provisions of the act and to marine sanctuaries. The estuarine sanctuary program must interact with the overall coastal zone management program in two ways: (1) the intended research use of the sanctuary should provide relevant data and conclusions of assistance to coastal zone management decision-making, and (2) when developed, the State's coastal sone management program must recognize and be designed to protect the estuarine sanctuary: appropriate land and water use regulations and planning considerations must apply to adjacent lands. Although estuarine sanctuaries should be incorporated into the State coastal zone management program, their designation need not await the development and approval of the management program where operation of the estuarine sanctuary would aid in the development of a program. 19925 (b) The estuarine sanctuaries program will be conducted in close cooperation with the marine sanctuaries program (Title II of the Marine Protection, Research Act of 1972, Pub. L. 92-532, which is also administered by the Office of Coastal Zone Management, NOAA). which recognizes that certain areas of the ocean waters, as far seaward as the outer edge of the Continental Shelf, or other coastal waters where the tide ebbs and fows, or of the Great Lakes and their connecting waters, need to be preserved or restored for their conservation. recreational, ecologic or esthetic values. It is anticipated that the Secretary on occasion may establish marine sanctuaries to complement the designation by States of estuarine sanctuaries, where this thay be mutually beneficial Subpart B Application for Grants § 921:10 General. Section 312 authorizes Federal grants to coastal States so that the States may establish panctuaries according to regulations promulgated by the Secretary. Coastal States may file applications for grant with the Director, Omce of Coastal Zone Management, National Oceanic and Atmospheric Administration, U.S. Department of Commerce, Rockville, Maryand 20852. That agency which has been certified to the Office of Coastal Zone Management as the entity responsible for administration of the State coastal zone management program may either submit an application directly, or must endorse and approve applications submitted by other agencies within the State. 8921.11 Application for initial acquisi tion, development and operation grants. (a) Grants may be awarded on a matching basis to cover the costs of acquisition, development and operation of estuarine sanctuaries. States may use donations of land or money to satisfy all or part of the matching cost requirements. (b) In general, lands acquired pursuant to this section, including State owned lands but not State owned submerged lands or bay bottoms, that occur within the proposed sanctuary boundary are legitimate costs and their fair market value may be included as match. However, the value of lands donated to or by the State for inclusion in the sanctuary may only be used to match other costs lands already exist in a protected status. of land acquisition. In the event that their value cannot be used as match for sanctuary development and operation grants, which will require their own matching funds. (c) Development and operation costs may include the administrative expenses necessary to monitor the sanctuary, to ensure its continued viability and to protect the integrity of the ecosystem. Research will not normally be funded by Section 312 grants. It is anticipated that other sources of Federal, State and FEDERAL REGISTER, VOL. 39, NO. 108-TUESDAY, JUNE 4, 1974 |