[Senate Report 111-64]
[From the U.S. Government Publishing Office]
111th Congress Report
SENATE
1st Session 111-64
_______________________________________________________________________
Calendar No. 147
GULF OF THE FARALLONES AND CORDELL BANK NATIONAL MARINE SANCTUARIES
BOUNDARY MODIFICATION AND PROTECTION ACT
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 212
August 4, 2009.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eleventh congress
first session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota JOHN ENSIGN, Nevada
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey JOHNNY ISAKSON, Georgia
MARK PRYOR, Arkansas DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri SAM BROWNBACK, Kansas
AMY KLOBUCHAR, Minnesota MEL MARTINEZ, Florida
TOM UDALL, Colorado MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
Ellen Doneski, Chief of Staff
James Reid, Deputy Chief of Staff
Bruce Andrews, General Counsel
Christine Kurth, Republican Staff Director and General Counsel
Brian Hendricks, Republican Chief Counsel
Todd Bertoson, Republican Senior Counsel
Calendar No. 147
111th Congress Report
SENATE
1st Session 111-64
======================================================================
GULF OF THE FARALLONES AND CORDELL BANK NATIONAL MARINE SANCTUARIES
BOUNDARY MODIFICATION AND PROTECTION ACT
_______
August 4, 2009.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 212]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 212) to expand the boundaries
of the Gulf of the Farallones National Marine Sanctuary and the
Cordell Bank National Marine Sanctuary, and for other purposes,
having considered the same, reports favorably thereon with
amendments and recommends that the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 212, the Gulf of the Farallones and Cordell
Bank National Marine Sanctuaries Boundary Modification and
Protection Act, is to extend the boundaries of the Gulf of
Farallones National Marine Sanctuary and the Cordell Bank
National Marine Sanctuary, strengthen the protections that
apply to the Sanctuaries, educate the public regarding the
ecological value and national importance of those marine
environments, and manage uses of the Sanctuaries under the bill
and the National Marine Sanctuaries Act (NMSA, 16 U.S.C. 1431
et seq.).
Background and Needs
In 1972, Congress passed the Marine Protection, Research, and
Sanctuaries Act (MPRSA) of 1972 (16 U.S.C. 1431 et seq.). Title
III of that statute authorized the Secretary of Commerce
(Secretary) to designate and permanently protect areas of
national significance within the marine environment due to the
importance of their conservation, recreational, ecological,
historical, scientific, cultural, archeological, educational,
or aesthetic qualities. In 1992, under title II of the Oceans
Act (P. L. 102-587), the NMSA amended the MPRSA process for
considering sanctuary designation standards and procedures.
Currently, a total of thirteen national marine sanctuaries and
four national marine monuments encompass approximately 150,000
square miles of marine and Great Lakes waters. Sanctuaries vary
in size from one square mile to 137,792 square miles.
The NMSA established the National Marine Sanctuary Program
(NMSP), which is responsible for identifying, designating, and
managing ocean and Great Lakes areas as national marine
sanctuaries. The NMSP has the authority to issue regulations
for each sanctuary to specify the types of activities that can
and cannot occur within sanctuary boundaries, which have the
effect and enforceability of law. A designation document is
prepared as part of a sanctuary's designation process, which
defines: (1) the area of the sanctuary; (2) the characteristics
of the area that give it value; and (3) the types of activities
that will be subject to regulation to protect those
characteristics. The National Oceanic and Atmospheric
Administration (NOAA) is authorized to both recover damages
from responsible parties that injure sanctuary resources and to
assess civil penalties for violations of sanctuary regulations.
Most sanctuaries generally prohibit material discharges into
the sanctuary, the disturbance of seabed and cultural
resources, and exploration and development of oil, gas, and
minerals within the sanctuary.
The NMSP also establishes management plans, develops
conservation policy, issues permits, and undertakes strategic
planning for each sanctuary. Each sanctuary has a community-
based Sanctuary Advisory Council, which is comprised of
representatives from various public interest organizations,
scientific and educational organizations, and commercial and
recreational user groups including fishermen, government
agencies, and local businesses. The Sanctuary Advisory Council
advises the sanctuary manager on the designation and/or
operation of a national marine sanctuary.
Regulatory changes most often occur during a five-year
Management Plan Review. During this process, Sanctuary Advisory
Councils, working groups, and the public may identify issues
that could lead to the decision to restrict or prohibit certain
activities in the sanctuary.
The NMSA has been amended and reauthorized six times, most
recently in 2000, which authorized funding through the end of
fiscal year 2005. The 2000 reauthorization of the NMSA included
a provision that placed a limitation on the creation of new
sanctuaries in an effort to address the impact of decreasing
appropriations on the ability to provide sufficient maintenance
and operation capabilities for established sanctuaries.
However, the limitation does not prevent the expansion of
existing sanctuaries.
The existing 13 national marine sanctuaries and one national
marine monument have been added to the program through three
different processes: (1) the NMSP process; (2) Congressional
designation; and (3) Executive Order. The majority of the
national marine sanctuaries were added to the System through
the NMSP process. However, the Hawaiian Islands Humpback Whale
National Marine Sanctuary and the Stellwagen Bank National
Marine Sanctuary were designated by provisions included in the
Oceans Act of 1992, and the Florida Keys National Marine
Sanctuary and Protection Act designated the Florida Keys
National Marine Sanctuary, which enveloped the existing Key
Largo and Looe Key National Marine Sanctuaries in 1996. The
Executive Branch used authorities provided by the Antiquities
Act of 1906 (16 U.S.C. 431) to designate the Papahanaumokuakea
National Monument, the Marianas Trench Marine National
Monument, the Pacific Remote Islands National Monument, and the
Rose Atoll Marine National Monument as a marine national
monuments. Paphanaumokuakea National Monument is also a
national marine sanctuary. To date, the Congress also has
enacted legislation to expand the boundaries of one existing
sanctuary. The National Marine Sanctuaries Preservation Act of
1996 added Stetson Bank to the Flower Garden Banks National
Marine Sanctuary.
The Gulf of the Farallones National Marine Sanctuary,
established in 1981, is 948 square nautical miles off the coast
of California just west of San Francisco and is part of the
United Nations' Golden Gate Biosphere Reserve. It is a breeding
ground for resident harbor seals, elephant seals, harbor
porpoises, Pacific white-sided dolphins, rockfish, and
seabirds, including the Tufted Puffin. Thirty-six species of
marine mammals migrate through the Sanctuary, including gray
whales, and the Sanctuary contains a resident blue whale
population, and serves as a feeding ground for both blue and
humpback whale populations. The Gulf of the Farallones National
Marine Sanctuary has the largest concentration of breeding
seabirds in the continental United States.
The Cordell Bank National Marine Sanctuary contains an
offshore granitic bank 4.5 miles wide by 9.5 miles long and
comprises 399 nautical square miles of the northern California
coast. It is characterized by dynamic ocean conditions and
complex undersea topography due to the prevailing California
current that flows southward along the coast. The Cordell Bank
National Marine Sanctuary contains about 240 fish species, 69
species of seabirds, and 28 marine mammal species.
Expanding the two Sanctuaries would protect their source
water, areas of biological diversity, and conserve habitat for
seabirds, marine mammals, and fisheries. The existing Gulf of
the Farallones and Cordell Bank National Marine Sanctuaries lie
within one of only four coastal upwelling ecosystems on Earth,
the only such area within the United States. Upwelling
ecosystems are the most productive ocean ecosystems and provide
nutrients and food that support local and migratory marine life
in the Sanctuaries. Currently, the center of upwelling that
provides the source waters for the Gulf of the Farallones and
Cordell Bank National Marine Sanctuaries lies outside the
existing Sanctuaries' boundaries. The expansion from Point
Arena to Bodega Bay in California would include the upwelling
center. The Cordell Bank National Marine Sanctuary expansion
area would include Bodega Canyon, a specialized habitat for a
variety of species, including deepwater corals. Krill living
within the Canyon are an important part of the Cordell Bank
food web and are the primary diet for endangered blue whales
and a dietary staple for rockfishes and coho and king salmon.
Oil and gas development activities are currently prohibited
within the boundaries of both sanctuaries through regulations.
This bill would place a statutory prohibition on all oil and
gas leasing and permitting within the sanctuaries including
transporting by pipeline.
Summary of Provisions
S. 212 would modify the existing Sanctuaries' boundaries to
add approximately 1,521 square nautical miles to the Gulf of
the Farallones Sanctuary and 354 square nautical miles to the
Cordell Bank Sanctuary. The expansion would extend the existing
Sanctuaries' prohibition of the leasing, exploration,
development, production, or transporting by pipeline of
minerals or hydrocarbons.
The bill would direct the Secretary of Commerce to complete:
(1) a draft supplemental management plan for each Sanctuary not
later than 24 months after the date of enactment of the Act;
and (2) a revised comprehensive management plan for each of the
Sanctuaries at the conclusion of the first management review
for the Sanctuaries initiated after the date of enactment of
the legislation. The existing regulations for the Gulf of the
Farallones National Marine Sanctuary and the Cordell Bank
National Marine Sanctuary, including any changes made as a
result of a joint management plan review for the Sanctuaries,
would apply to the expansion areas. The bill would provide the
Secretary with 24 months to assess and change any necessary
regulations and direct the Secretary to consider appropriate
regulations in the Sanctuaries for the deposit or release or
introduced species and the alteration of stream and river
drainage into the sanctuaries.
Legislative History
The Gulf of the Farallones and Cordell Bank National Marine
Sanctuaries Boundary Modification and Protection Act, S. 212,
was introduced by Senator Boxer on January 12, 2009. On May 20,
2008, the Committee considered a manager's amendment to this
bill in an open executive session. The Committee, on voice
vote, ordered S. 212 to be reported favorably, as amended.
Senators Hutchison, Thune, Wicker, Isakson, and Johanns were
recorded as voting against the bill.
Staff assigned to this legislation are Kristen Sarri,
Democratic Professional Staff, and Todd Bertoson, Republican
Senior Counsel.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
June 15, 2009.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 212, the Gulf of the
Farallones and Cordell Bank National Marine Sanctuaries
Boundary Modification and Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Aurora
Swanson.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 212--Gulf of the Farallones and Cordell Bank National Marine
Sanctuaries Boundary Modification and Protection Act
Summary: S. 212 would expand the boundaries of the Gulf of
the Farallones National Marine Sanctuary and the Cordell Bank
National Marine Sanctuary; both are located off the coast of
northern California and are managed by the National Oceanic and
Atmospheric Administration (NOAA).
Assuming appropriation of the amounts specified in the bill
for sanctuary management and estimated to be necessary for
vessel construction and acquisition activities as authorized,
CBO estimates that implementing S. 212 would cost $20 million
over the 2010-2014 period. Enacting the bill would have no
effect on revenues or direct spending.
S. 212 contains no intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA) and would impose no
costs on state, local, or tribal governments.
S. 212 would impose private-sector mandates, as defined in
UMRA, by prohibiting or restricting certain commercial and
recreational activities in the areas added to the Gulf of the
Farallones and Cordell Bank National Marine Sanctuaries. Based
on information from NOAA, CBO estimates that the cost of the
mandates would fall below the annual threshold established in
UMRA for private-sector mandates ($139 million in 2009,
adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 212 is shown in the following table. The
costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year in millions of dollars--
--------------------------------------------------
2010 2011 2012 2013 2014 2010-2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Additional Sanctuary Operating Costs:\a\
Authorization Level...................................... 3 3 3 3 3 15
Estimated Outlays........................................ 3 3 3 3 3 15
Vessel Acquisition and Construction:
Estimated Authorization Level............................ 4 1 0 0 0 5
Estimated Outlays........................................ 0 2 2 1 0 5
Total Spending Under S. 212:
Estimated Authorization Level............................ 7 4 3 3 3 20
Estimated Outlays........................................ 3 5 5 4 3 20
----------------------------------------------------------------------------------------------------------------
\a\Average annual appropriations to manage the two marine sanctuaries at their current size total about $2
million.
Basis of estimate: For this estimate, CBO assumes that S.
212 will be enacted by the end of fiscal year 2009 and that the
amounts specifically authorized or estimated to be necessary
will be appropriated for each year. The bill authorizes the
appropriation of $3 million for each of fiscal years 2010
through 2014 to manage the areas added to the two sanctuaries.
The bill also would authorize the appropriation of $4
million for 2009 and whatever sums are necessary for 2011
through 2014 to construct or acquire an additional vessel to
manage the expanded sanctuaries. Based on information provided
by NOAA, CBO estimates that an additional $1 million would be
needed in 2011 to complete the acquisition of the new vessel,
which is estimated to cost about $5 million. Estimated outlays
are based on historical spending patterns for NOAA programs and
also reflect the assumption that NOAA would not be able to
start building or acquiring a new vessel until it received full
funding for the project in 2011.
Estimated impact on state, local, and tribal governments:
S. 212 contains no intergovernmental mandates as defined in
UMRA and would impose no costs on state, local, or tribal
governments.
Estimated impact on the private sector: S. 212 would extend
current regulations and any subsequent modifications to those
regulations to the areas added to the sanctuaries by the bill.
Some of those regulations would impose private-sector mandates,
as defined in UMRA, by prohibiting or restricting certain
commercial and recreational activities that could injure
sanctuary resources. Based on information from NOAA about
activities in the areas that would be added and existing
regulations for the sanctuaries, CBO estimates that the cost of
complying with the mandates would fall below the annual
threshold established in UMRA for private-sector mandates ($139
million in 2009, adjusted annually for inflation).
Estimate prepared by: Federal Costs: Aurora Swanson; Impact
on State, Local, and Tribal Governments: Shannon Fairchild and
Leo Lex; Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
The reported bill would not authorize any new regulations,
and therefore, will not subject any individuals or businesses
to new regulations.
ECONOMIC IMPACT
The bill, as reported, may have a slight positive impact on
the nation's economy by increasing tourism and expanding
sanctuary designation for conservation of living marine
resources. However, the bill would prohibit or restrict certain
commercial activities that could injure Sanctuary resources,
and therefore, may have a slight negative impact on the
nation's economy.
PRIVACY
The reported bill would not have any adverse impact on the
personal privacy of individuals.
PAPERWORK
The reported bill would not increase paperwork requirements
for the private sector. The bill would require the Secretary of
Commerce to produce updated National Oceanic and Atmospheric
Administration nautical charts for the areas in which the
Sanctuaries are located and complete an interim supplemental
management plan for the Sanctuaries to include the expansion
areas.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides the
following identification of congressionally directed spending
items contained in the bill, as reported:
Section-by-Section Analysis
Section 1. Short Title.
This section would provide that the legislation may be cited
as the ``Gulf of the Farallones and Cordell Bank National
Marine Sanctuaries Boundary Modification and Protection Act.''
Section 2. Findings.
The findings would describe the existing national marine
sanctuaries and the national and international significance of
the sanctuaries to the marine environment.
Section 3. Policy and Purpose.
This section would provide that it is the policy of the
United States in this Act to protect and preserve living and
other resources of the Gulf of the Farallones and Cordell Bank
marine environments by: (1) extending the boundaries of the
Gulf of the Farallones National Marine Sanctuary and the
Cordell Bank National Marine Sanctuary; (2) strengthening the
protections that apply in the sanctuaries; and (3) managing
uses of the sanctuaries. The section also states that nothing
in this Act is intended to alter any existing authorities
regarding the conduct and location of fishing activities in the
sanctuaries.
Section 4. Definitions.
This section would define several terms as they apply to this
Act, including: (1) Cordell Bank NMS; (2) Farallones NMS; (3)
Sanctuaries; and (4) Secretary.
Section 5. National Marine Sanctuary Boundary Adjustment.
This section would expand the Gulf of the Farallones National
Marine Sanctuary and the Cordell Bank National Marine Sanctuary
by describing the adjusted boundaries for each Sanctuary. The
areas that would be included are all submerged lands and
waters, including living marine and other resources within and
on those lands and waters, from the mean high water line to the
boundary. The section would provide for the expansion areas to
be managed as part of the National Marine Sanctuary System. In
addition, this section would direct the Secretary of Commerce
to produce updated National Oceanic and Atmospheric
Administration nautical charts for the areas in which the
Sanctuaries are located and include on those nautical charts
the boundaries of the Sanctuaries, as revised by the Act.
Section 6. Prohibition of Oil and Gas Leasing and Permitting.
This section would prohibit the issuance of a lease or permit
that authorizes exploration, development, production, or
transporting by pipeline of minerals or hydrocarbons within the
Sanctuaries as modified by section 5.
Section 7. Management Plans and Regulations.
This section would direct the Secretary of Commerce to
complete a draft supplemental management plan for the
Sanctuaries by not later than 24 months after the date of
enactment of the Act that focuses on management in the areas
added to the sanctuaries under this Act. The supplemental plan
could not weaken existing resource protections. In addition,
the Secretary would issue a revised comprehensive management
plan for the Sanctuaries during the first management review
initiated after the date of the enactment of this Act under
section 304(e) of the National Marine Sanctuaries Act (16
U.S.C. 1434(e)) for the Sanctuaries, and issue such final
regulations as may be necessary.
The section would require that revisions to each
comprehensive management plan: (1) facilitate all appropriate
public and private uses of the sanctuaries to which each
respective plan applies consistent with the primary objective
of sanctuary resource protection; (2) establish temporal and
geographical zoning if necessary to ensure protection of
sanctuary resources; (3) identify priority needs for research;
(4) establish a long-term ecological monitoring program and
database; (5) identify alternative sources of funding needed to
fully implement the plan's provisions and supplement
appropriations under section 313 of the MPRSA (16 U.S.C. 1444);
(6) ensure coordination and cooperation between sanctuary
superintendents and other federal, state, and local authorities
with jurisdiction over areas within or adjacent to the
Sanctuaries to deal with issues affecting the Sanctuaries; (7)
promote cooperation with farmers and ranchers operating in the
watersheds adjacent to the Gulf of Farallones National Marine
Sanctuary and establish voluntary best management practice
programs; (8) promote cooperative and educational programs with
fishing vessel operators and crews operating in the waters of
the Sanctuaries, and (9) promote education and public
awareness.
This section would permit the regulations for the Gulf of the
Farallones National Marine Sanctuary (15 C.F.R. 922, subpart H)
and the Cordell Bank National Marine Sanctuary (15 C.F.R. 922,
subpart K), including any changes made as a result of a joint
management plan review for the Sanctuaries conducted pursuant
to section 304(e) of the National Marine Sanctuaries Act (16
U.S.C. 1434(e)), to apply to the areas added to each Sanctuary,
respectively, until the Secretary modifies such regulations.
The section would direct the Secretary to carry out an
assessment of necessary revisions to the regulations for the
Sanctuaries in a manner that ensures the protection of the
resources of the Sanctuaries consistent with the purposes and
policies of the NMSA and the goals and objectives for the new
areas added to each Sanctuary under section 5 of this Act. This
section would require the assessment and any corresponding
regulatory changes be complete within 24 months of the date of
enactment of this Act. In revising the regulations for the
Sanctuaries pursuant to this subsection, the Secretary would be
required to consider appropriate regulations for the following
activities: the deposit or release of introduced species, and
the alteration of stream and river drainage into the
Sanctuaries.
In addition, when revising the regulations for the
Sanctuaries, the Secretary would consider exempting from
further regulation under the NMSA and this Act discharges that
are permitted under a National Pollution Discharge Elimination
System permit in effect on the date of enactment of this Act,
or under a new or renewed National Pollution Discharge
Elimination System permit that does not increase pollution in
the Sanctuaries and that originates in the Russian River
Watershed outside the boundaries of the Gulf of the Farallones
National Marine Sanctuary; or from the Bodega Marine
Laboratory. The Secretary would provide for participation by
the general public in the revision of the comprehensive
management plans and relevant regulations under this section.
Section 8. Authorization of Appropriations.
This section would authorize $3,000,000 for each of fiscal
years 2010 through 2014 for activities other than construction
and acquisition activities. In addition, the section would
authorize $3,500,000 for fiscal year 2010 and such sums as may
be necessary for each of fiscal years 2011 through 2014 for
construction and acquisition activities.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, the Committee states that the bill as
reported would make no change to existing law.