1, prcdg pfl material disposal 



First, the proposed boundary alternative (#2) is inconsistent with the preferred 

 regulatory alternative for dredged material disposal. The DEIS states, "boundary 

 alternative #2 does not encompass any of the Massachusetts Bay Disposal Site 

 (MBDS), as currently-proposed for designation by EPA" {p.l31). Yet, the preferred 

 regulatory alternative for dredged material disposal, "disposal allow/ed at MBDS 

 under sanctuary oversight" (p. 136), is based on the premise that dredged material 

 disposal activity is to occur within the boundary of the sanctuary. While we support 

 NOAA's intent to monitor dumping activities at MBDS; NOAA does not state how 

 it intends to monitor or regulate dumping activities at the MBDS if the dumpsite is 

 outside of sanctuary boundaries. In our view, there is no appropriate regulatory 

 alternative to including the MBDS within sanctuary boundaries. 



Based upon the amount of toxic material already present at the MBDS site and 

 the great volume of dredged material targeted for the site, the MBDS is a significant 

 potential threat to sanctuary resources and uses. We cannot safely conclude that 

 continued use of MBDS or the existing contamination at the site does not adversely 

 affect the surrounding environment. For example, the original dumpsite, which is 

 located approximately one nm north of the Boston Foul Ground (BFG) and was 

 used from 1963 to 1975, was not sampled during COE and EPA studies to assess the 

 level of contamination at the BFG and the MBDS. Since ocean dumping at the time 

 the first site was in use was unregulated, it is unknown what types of waste were 

 dumped at the site. The effects of the earlier site on the environment, therefore, are 

 largely unknown. Furthermore, it is premature to conclude that bioaccumulation at 

 the site is inconsequential because animals which may have the highest 

 concentrations of contaminants, i.e., animals at higher levels of the food-chain 

 which could biomagnify contaminants, have not been sampled for contaminant 

 levels. Finally, some animals which have been sampled at the MBDS show PCB 

 contamination levels above the FDA's action level of 2 ppm (wet weight). 



We agree wiA the COE's and EPA's recommendation to designate the MBDS a 

 permanent dumpsite for dredged materials; and we agree with their conclusion that 

 the overall impact of these sites on the surrounding environment is minimal. 

 However, MBDS and other dumpsites in Stellwagen Bank have the potential to 

 harm sanctuary resources and uses. Therefore, NOAA should make continued 

 research on these sites and monitoring of future dumping activity at MBDS a top 

 priority. We believe that NOAA can best accomplish these objectives, objectives 

 which are consistent with the overall goab of the sanctuary program, by selecting a 

 boundary alternative which includes the MBDS, and other dumpsites in Stellwagen 

 Basin, within the sanctuary boundary. This, we think, is the same conclusion that 

 the DEIS draws in the discussion of the preferred regulatory alternative for dredged 

 material disposal (p. 136). However, because the preferred boundary altenxative (#2) 

 does not presently include the MBDS or other dumpsites, boundary alternative #3 

 should be selected as the permanent sanctuary boundary so that NOAA may 

 implement its preferred regulatory alternative for dredged material disposal. 



2. See generic responses D.l. and D.4. 

 Additionally, see expanded discussion of 

 the MBDS at PART THREE, Section 

 Il.C.l.a. NOAA is currently pursuing the 

 development of a protocol, or memorandum 

 of agreement with EPA and COE regarding 

 review of disposal permit applications 

 for the MBDS, and monitoring efforts to 

 determine any adverse effects of dis- 

 posal activities on Sanctuary resources 

 or qualities. 



3. 



4 



2. Offshorp nil and pas development 



Currently, offshore oil and gas development is an activity placed withm the 

 proposed sanctuary's scope of regulation. Clearly, offshore oil and gas development 

 is inconsistent with the protection of resources and uses within the sanctuary. 

 Because oil and gas exploration is inconsistent with the protection of sanctuary 

 resources and uses, this activity should be prohibited. Furthermore, by failing to 

 prohibit oil and gas development activity as part of the original designation terms, 

 and only reserving the right to do so in the future, NOAA may open the door to 

 legal challenges in the event of a later prohibition on oQ and gas development The 

 attempt to accomplish this goal by regulation may run afoul of the Marine 

 Sanctuaries Acfs requirement that amendments to the sanctuary designation terms 

 must be made in the same manner as the original terms were approved, i.e., the 

 entire designation process must be repeated. NOAA should, at the least, obtain an 

 opinion from its Office of General Counsel to the effect that listing an activity for 

 regulatory purposes encompasses the future categorical prohibition of that activity. 



3. M^ricvltvre , ., .u . 

 Because mariculture is an exclusive use of sanctuary resources and poses a threat 



to other resources and uses, it should be prohibited within the sanctuary. 



Sanctuaries, by definition, should support and protect compatible uses. Mariculture 



operations could exclude, or present obstacles to, other sanctuary uses, such as 



commercial fishing, recreational fishing, whale-watching, shipping, and other, 



compatible, sanctuary uses. Furthennore, mariculture operations pose an 



entanglement threat to marine mammals. For these reasons, we believe that 



mariculture should be prohibited within the sanctuary. 



3. See generic response E. By listing 

 this activity as "subject to Sanctuary 

 regulation", NOAA has identified it as 

 being within the scope of Sanctuary 

 regulation. Should the need to regulate 

 hydrocarbon activities within the 

 Sanctuary arise in the future, NOAA 

 would not be required to repeat the 

 entire NEPA process, but could issue a 

 Notice of Proposed Rulemaking, which 

 would also be open to public review and 

 participation. 



4. See generic response G. 



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