19922 Title 15-Commerce and Foreign Trade CHAPTER IX-NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE PART 921-ESTURAINE SANCTUARY GUIDELINES 62 RULES AND REGULATIONS the proposed regulations and presents the rationale for the responses made. Section 921.2 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 south Texas coast. The National Oceanic and Atmospheric Administration (NOAA) on 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 Stat. 1280), hereinafter referred to as the "Act," for_the the purpose of establishing the policy and procedures for the nɔmination, selection and manager at ng estuarine sanctuaries. Written me ts were to be submitted to the Office of Coestal Environnient (now the Offle of Coasta' Zone Management National Cocant and Atmospheric Arinta aion for April 8, 1974, «nd const? *ka benn given thes ́ commente, The act reconizes zone is rich in a variety o mercial, recieɛtions?, esthetic resOTICES Of War tential value to p well-being of the nation couraged to develɔr management program: i. Wias use of the resources of the caste' zane, and the Act authorizes Federal gato the States for these parpones (a sus 305 and 306). 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 Implementation. Several comments suggested that the estuarine sanctuary program objectives were too narrowly defined and specifically that they should be broadJaned 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 far. estuarine sanctuary may in fact serve to preserve or protect an area or biologica! community, the legislative his tory of section 313 clearly indicates the estuarine sanctuary program was not in tended 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. 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 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 ecological relationships within the area. The purpose of these guidelines is to establish the rules and regulations for implementation of this program. 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 sections 302, 305 and 306 of the Act). No significant additional benefit would 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 received. A total of fifty (50) States, agencies, organizations and individuals sub-ily mitted responses to the proposed section 312 guidelines published in the FEDERAL REGISTER on March 7, 1974. Of those responses received, eight (8) offered 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 A few comments indicated that the examples of sanctuary use were too heav weighted toward scientific uses to the exclusion of educational uses. Public education concerning the value and benefits of, and the nature of conflict within the coastal zone, will be essential to the success of a coastal zone management program. The section has been changed to refect an appropriate concern for educational use. Some commentators suggested changes in or additions to the speciac 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 i921.3(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 specifically 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) scientinc 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 scientiac 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 beneft 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 areas to serve as controls for manipulative research or research on altered 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 modifer "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 benedts 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 none from another. The legislative history of section 312 clearly shows the intent to select estuarine sanctuaries on a rational basis which would refect regional differentia tion and a variety of ecosystems. The bio geographic classification system, whi refects geographic, hydrographic, 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 new class reflecting an area or State of special concern or interest to the respondent. (No two commentators suggested the same area.) It is felt that adequate national representation is provided by the biogeographic scheme proposed, and that the changes offered were 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 sug gestion have been incorporated into the final rules. Two commentators requested assurance that sub-categories of the blogeographic 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 use that the primary purpose of the sanc- Section 921.6 Relationship to Other The relationship between the two) päños Three commentators discussed the A few co ments sought reassurance that the estuarine sanctuaries program will in fact be coordinated with the Marine Sanctuaries Program (Title III. Pub. L. 92-532). The guidelines have been changed to reflect that both programs will be administered by the same omice. SUBPART B-APPLICATION FOR GRANTS indicated uncertainty about which State Appropriate language has been in- Section 921.11 Initial Application for 19923 Grants. Two comments requested that the souros and nature of acceptable matching funds should be explicitly identified. 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. Two comments stressed the need for increased availability of research funds to adequately utilize the potential of estuarine sanctuaries. While not an appropriate function of the estuarine sanctuary program, the Office of Coastal Zone Management is discussing the necessity of adequate funding with appropriate agencies. One comment suggested that the term "legal description" of the sanctuary († 921.11(a)) is not appropriate for all categories of information requested. The zword “legal”, has been omitted. Truse reviewers indicated that the Act par zilas no basis for consideration of >-economic impacts (921.11(1) ) that this criterion seemed inapproe to selecting estuarine sanctuaries. Marently these reviewers misunderad the intention of this requirement. nisɗorazation in this section is neces for preparation of an environmental et statement which will be prepared pondant to NEPA. Although required in the application, such information is not a part of the selection criteria, which are addressed in Subpart C, i 921.20. One similar comment was received with regard to consideration of existing and potential uses and conficts (§ 921.11(h)). This item is also discussed under selection criteria (921.20 (h)). It is intended 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 bearing is deemed desirable by the Office of Coastal Zone Management, it would not always seem to be necessary. The language in 1920.11(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 comment was made that a provision should be included to use existing Federally owned land for the purpose of the estuarine sanctuary program. A sec tion has been added for that purpose. Section 921.30 Criteria for Selection. One comment suggested that the consideration of conflict with existing or potential competing uses should not be included as a selection criterion. As d cussed above, this criterion is considered appropriato. Another reviewer suggested the addion of a new criterion, consideration of “the used to protect a particular estuar from harmful developmars” As dia cussed earlier, this criterion is not sidered appropriate, Suck a basis determining selection would lead in reactionary, random series of estuaring sanctuaries, rather tim 1 thứ rationaly chasen representative series manda's in the legislative history. Two reviewers_commented that the limitation on tho Federal xaus€ ($2,000,000 for each sanctuary) was too low and would severely restrits the usefulness of the program. However, this limite is provided by the Act. Another commentator suggested {921.20(g) was unnecess; ziły restrictive in that it might prevede selecting an astuarine sanctuary bi an sres adjacent existing preserved lands where the njunction might be mutually bengd.. The language of § 921.30(g) does not preclude' such action, but has changed to specifically permit this dbility. Two commentators inquired whether the reference to a “draft" environmental impact statement († 921.20, last parzraph) indicated an intention to svaid further compliance with NEPA. It is Arm intention of the Omes of Co Zone Management to fully comply in all respects with NEPA. The word "draft" has been struck. 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 DOPERATION Section 921.30 General. One commentator suggested that during contract negotiations, there should be a meeting between the applicant agency and posed sanctuary management team, representatives of the Once of Coastal Zone Management. The general provisions have been broadened to provide for this suggestion. Two comments were submitted which urged that soms discretion be exercised in the use and access to the sanctuary by scientists and students. Two other comments were received which requested specific 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. 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 comments received and other relevant information, the Secretary concludes by adopting the final regulations describing the procedure for applications to receive estuarine sanctuary grants under section 312 of the Act, as modifed and set forth below. Erective date: June 3, 1974. Dated: May 31, 1974. 921.10 121.11 ROBERT M.WHITE. Subpert A-General Policy and objectives. Biogeographie classifestion. Zelationship to other provisions of $21.13 Federally owned lands. 121.20 921.21 121.30 $21.31 Subpart ComSelection Criteria Critaria for selection. Public participation. Subpart D-Operation General. Changes in the sanctuary boundary, AUTHORITY: Sec. 313 of the Coastal Zone Subpart A-General 921.1 Policy and Objectives. 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 relation ships within the area. 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 Graffts 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, consuturing to the extent feasible a natural unit, set aside to provide scientists and students the opportunity to examine over a period of time the ecological relationships within the ares. (b) For the purposes of this section, “estuary" means that part of a river stream or other body of water having unimpared connection with the open sea. where the seawater is measurably diluted with freshwater derived from land drain 58. The term includes estuary-type areas of the Great Lakes as well as lagoons in more arid coastal regions. (c) The term “multiple use" as used in this section shall mean the simultaneous utilization of an ares or resoures for a variety of compatible purposes to provide more than one beneft. 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 programi. (a) General. The purpose of the estuarine sanctuaries program is to create natural field laboratories in which gather data and make studies of natural and human processes occurri within the estuaries of the coasta This shall be accomplished by the lishment of a series of estuarine tuaries which will be designated at least one representative of of estuarine ecosystem will endur the future for scientide and educatio purposes. The primary use of estuarine sanctuaries shall be for research and educational purposes, aspecially to provide some of the information essential to 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 ecologicsi relationships within the estuaring 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 systems, their values and beneêts to man and naure, 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 fald laboratories for studies and investigations over an extended period. The ares chosen as an estuarine sanctuary shail, to the extent feasible, include water and land masses constituting a natural ecological unit. (c) In order that the estuarine sanctuary 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 faid research shall be carefully controlled. No experiment which involves manipulative research shall be initiated until the termination 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 (Xample, 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. § 921.4 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 as 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: Northeast Atlantic 1. Arosdian. south to Cape Cod, glaciated shoreline subject to winter icing; well developed nigal flors: 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; biota 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; shoreland 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. Californian. South Pacific coast from Mexico to Cape Mendocino; shoreland induenced by coastal mountains, rocky coasts with reduced fresh-water runoff; general absence of marshes and swamps; biota temperate. 7. Columbian. North Pacific coast from Cape Mendocino to Canada; mountaineous shoreland; rocky coasts; extensive signi communities: biota primarily temperate with some boreal 8. Flords. South coast Alaska and Aleutians; precipitous mountains; deep estuaries, some with glaciers; shoreline heavily in 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. (b) Various sub-categories will be de- It is anticipated that the Secretary on veloped and utilized as appropriate. § 921.5 Multiple use. occasion may establish marine sanctu- Application for Grants § 92140 General tuarine sanctuaries is to provide long- (b) There shall be no effort to balance or optimize uses of an estuarine sanctuary 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 significant short or long-term ecological change or would otherwise detract from or restrict the use of the sanctuary as a natural field laboratory, will be prohibited. 921.6 Relationship to other provisions of the act and to marine sanctuaries. (a) 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 zone 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. § 921.11 Application for initial acquisition, 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 of land acquisition. In the event that lands already exist in a protected status, 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 |