August 23, 2013
Division of Environmental Planning & Management
California State Lands Commission
100 Howe Ave., Suite 100-South
Sacramento, CA 95825
Email: CEQAcomments@slc.ca.gov
Subject: OGPP Update Comments
Dear Mrs. Lucchesi:
I thank the CSLC for their preparation of the Initial Study and Proposed Mitigated Negative Declaration (MND) for their update of the Offshore Geophysical Permit Program (OGPP). I appreciate the opportunity to send my comments and suggestions. As a point of reference, I am a former energy planner for San Luis Obispo County Planning Department and have been active in protecting the local ocean environment since 1990.
I have many concerns, most of which have been or will be addressed by other groups or individuals in our area. These concerns include lack of mitigation for fishermen, direct and indirect impacts by 'Low Energy" surveys on MPA's and Marine Sanctuaries, and impacts on humans while recreating in ocean waters. I would like to focus on three items I consider of significant concern.
1) Lack of definition of Low Energy — missing in the glossary, the document and appendices
2) Analysis approach based on Typical surveys: "The approach taken in this analysis is based on a single survey activity scenario developed through review of recent survey history." (line 22, ES-12)
3) Technology assessments of impacts fail to address, except for air guns, simultaneous use of multiple pieces of equipment 2-13
1) Lack of definition of Low Energy
There is no clear, articulated definition for the term "Low Energy" to be found in the document or appendices. The definition of "Low Energy" first defined by CSLC in 1984 as lower than 2 joules is either missing or has been removed. Thus, the public and various organizations have no meaningful gauge by which to measure the staff's assumptions, collected data, tables, conclusions and referenced studies supporting the assumptions, collected data, tables, conclusions. This may be a significant or fatal flaw that could require that this document be resubmitted as a draft for public comment with an EXACT definition not only including energy input of equipment but also decibel output and dissipating wave energy radii. By providing such a definition, the public may easily study the staff's assumptions, collected data, tables, conclusions and referenced studies supporting the assumptions, collected data, tables, conclusions.
2) Analysis approach based on Typical surveys: "The approach taken in this analysis is based on a single survey activity scenario developed through review of recent survey history." (line 22, ES-12)
While I do not disagree with a discussion covering 'typical' surveys, I am concerned that the 'typical' survey is the basis for all surveys given the impacts of the survey found in Table A-1: Estero Bay to Pt. Sal II 8/20/2012-11/20/2012 47 Boomer (2kJ).
This was not 'typical.' The survey lasted several weeks and was strong enough to create 3-d imaging. This survey created significant 'take' observed by many in the local fishery and ocean environmental community.
As soon as this survey began, whales that had been feeding in Avila harbor departed. The local pattern of sea bird feeding was so significantly disrupted that over 90 per cent of the Brown Pelicans in San Luis Bay left the area and did not return until 11 months later. This is time period when San Luis Bay becomes one of the densest, if not the densest, Brown Pelican populations in the state until breeding season on the Channel Islands. The cormorant population also nearly disappeared. Other sea bird populations also were radically reduced. Death of sea otters increased as well. There were greatly enhanced numbers of bat ray bodies on shore in local coves, witnessed by kayakers.
One fisherman informed me that the survey greatly disrupted the 'garden'. Local fishing nearshore was greatly reduced.
The 'take' from this survey and the 11 months of recovery are in a statistically separate universe than the statistical universe suggested in the MND and its referenced studies. Such impacts must be foreseen and not repeated.
For more details on 'take' from this survey see:
A) California Coastal Commission Denied Permit for PG&E's High Energy Seismic Survey
B) The Importance of Updating California's Offshore Low-Energy Geophysical Survey Program
In August 2012, the humpback whales feeding in the San Luis Bay harbor area made international news. They were easy to photograph given closeness to the beach and piers. The community and tourists were delighted to watch thriving marine life.
However, when the Pacific Star LESS boat arrived in late August 2012, the whales disappeared along with other sea mammals and sea birds in the area of the Harford Pier, Port San Luis. Individuals, workers, and business owners in Avila Beach and Pismo Beach reported the departure of the sea birds as well.
No official observers or scientific baseline was provided. However, many ocean observers noticed the most significant die off of marine life offshore SLO than they could recall ever happening before. Later, we learned the Pacific Star was pulling an array, but the seismic equipment, frequencies, and dB were not listed on the GSP.
From a group of ocean swimmers in Avila: Everyone concurs that the sea life all disappeared suddenly when the big ship appeared. This group was cautiously and studiously checking conditions before swimming at this time because of the greatly increased numbers of species in the area, including the humpback whales. The swimmers' worry was sharks. When the LESS activity began, they said the sea life abundance immediately disappeared; suddenly it was like winter.
Many (naturalists, nature photographers, surfers, swimmers, and others recreating nearshore or offshore) reported mammal deaths, including at least eight Morro Bay Harbor Porpoises, three dolphins, four sea otters, and four harbor seals. These observations demonstrate the need to have provided mammal observers during and after LESS.
We are concerned that the Migratory Bird Treaty Act was not observed during LESS. After the LESS activity nearshore and offshore SLO from the end of August through most of September, nearly all the endangered Brown Pelicans left their rocks and did not return to Pismo Beach and Avila Beach. There were no pelicans on Morro Rock, a designated state bird sanctuary. In between, along the Pecho Coast, kayakers reported much less sea bird life, particularly the populous cormorants and Brown Pelicans.
Other kayak observations were that from Pismo Beach to Cambria, Brown Pelican and cormorant populations were between almost none to substantially down. An out of state tourist familiar with Cambria's sea life abundance reported observing much less sea life than expected given previous summer visits. From end of summer through late autumn is the period when our area has the densest Brown Pelican population in the state.
The resident cormorants also left Shell Beach and elsewhere. They have not returned as of mid January. Just these two species' 'take' numbers are way out of bounds regarding 'acceptable' take under level B, which was proposed for HESS. We were predicting level A for HESS, not expecting to witness level A 'take' with LESS.
Bat Rays
Another kayaker observation was that of bat rays. The usual observation is seeing one bat ray a year washed ashore dead. At the end of August, four were observed dead washed ashore at the Shell Beach launch site. Another eight bat rays were seen dead in the ocean's only access coves in Shell Beach. How many more were killed or injured unobserved onshore or never having reached the shore? This also indicates many bottom dwelling species were greatly impacted, killed, or injured.
Nearshore fishermen have discussed with us a variety of anomalies after LESS, including a report of no sea life off Purisima Point in September, that it was a dead zone. Another reported pulling up dead spider crabs after LESS. He pointed to San Luis Bay (this was outside the CCC hearing) and said, "The garden is dead, but nothing is lost as it will all come back."
More importantly, some testified before the CCC at the January meeting in Pismo Beach of significant loss of catch because of LESS. One fisherman, Travis Evans, told the commissioners that he had to layoff some of his crew, and that his catch was down 60 percent.
See: Low Energy Seismic Surveys (LESS) Produce High Decibels Is LESS Actually HESS?
3) Technology assessments of impacts fail to address, except for air guns, simultaneous use of multiple pieces of equipment (2-13)
The usual evolution of technological increased efficiencies of equipment should give staff some pause as to just prohibiting air guns for "Low Energy' surveys. The equipment today is much stronger than those of even a decade ago. Decibel levels must be considered and made part of the 'Low Energy' definition.
The above damage mentioned in concern two, was caused by an array of boomers, not air guns. This survey was scaled to gather 2d and 3d images. The latter imaging means the impacts to the ocean ecosystem were significant because the acoustic impacts went miles deep into the strata below the ocean floor. The unusual number of dead bat rays more than suggests such an impact in the vertical water column below the equipment.
Also note 'take' for whales in appendix I, page i-24 listed by equipment in APPENDIX I METHODOLOGY FOR ESTIMATION OF MARINE MAMMAL TAKE AND PROJECT-SPECIFIC WEIGHTING OR CORRECTION FACTORS, Your list of impacts fails to mention whales.
On page I-25 note on level b take — 21 sea otters, 27 harbor porpoise, etc; there is zero with mitigations for level b. As equipment evolves in greater powers and as they are used in arrays or lines, these numbers may get worse.
Again, as equipment evolves in greater powers and as they are used in arrays or lines, these numbers may get worse.
Thank your for the opportunity to address this issue.
Sincerely,
Karl Kempton
California Central Coast Marine Sanctuary Alliance
August 22, 2013
Division of Environmental Planning & Management
California State Lands Commission
100 Howe Ave., Suite 100-South
Sacramento, CA 95825
Email: CEQAcomments@slc.ca.gov
Subject: OGPP Update Comments
Dear Mrs. Lucchesi:
We thank the CSLC for their preparation of the Initial Study and Proposed Mitigated Negative Declaration (MND) for their update of the Offshore Geophysical Permit Program (OGPP). We appreciate the opportunity to send our 15 questions with comments and suggestions to improve your intent of the Update: "The intent of the Update is to establish consistent guidance, limitations, and permit conditions to ensure that the activities of permittees do not result in a significant effect on the environment." (p. ES-3)
The California Central Coast Marine Sanctuary Alliance has reviewed the more than 428-page MND for the OGPP Update, and we have vital concerns and suggestions.
Our main concerns are having a regulatory standard for Low Energy, having individual survey permits, and having best practice mitigations to avoid negative biological impacts to humans, marine mammals, and other marine life.
The 2kJ energy input is deleted on page 2-5 of the MND. The MND lacks any limiting criteria to define the difference between Low Energy and High Energy. Clearly defining Low Energy is essential for defining OGPP, for issuing Low Energy Geophysical Permits, for determining needed warnings for public safety, and for providing adequate mitigations for marine life, Marine Protected Areas, National Marine Sanctuaries, commercial fishermen, and submerged Native American cultural heritage.
The one-year and proposed three-year blanket geophysical permits are not adequate to meet the goals of best practice mitigations. Surveys need to consider seasonal and geographic exclusions to avoid noise-producing geophysical surveys from critical habitats during important biological activity.
CSLC expects only 10 individual offshore geophysical surveys each year. While individual surveys are expected to last one to four days, several surveys lasted from 20 to 54 days during the last five years. According to the California Coastal Commission 2005 comments, "The Effects of Anthropogenic Sound on Marine Mammals," by Sara Wan, "Fundamentally, the primary goal of any management system must be to reduce or eliminate the intensity, and thus the potential for negative impacts, of noise sources by either not undertaking these activities to begin with, or through modifications to those activities (including the use of alternative, quieter technologies), and geographic and seasonal restrictions or exclusions. "
Blanket permits for several surveys do not meet this management goal.
Definition of Low Energy Geophysical Survey
Why is there no definition to be found in the document for 'Low Energy?' We think the fact that this definition is missing may present a fatal flaw in the document because the public has no reference point by which to evaluate the staff's data and references and to determine the accuracy of the staff's conclusions.
1 — What is your new definition of Low Energy that specifically quantifies the distinctions between High and Low Energy Geophysical Surveys.
The "2.0 kilojoule threshold " for Low Energy has been removed ("The proposed OGPP Update no longer applies this 2kJ threshold," page 2-5). Therefore, seismic equipment could input more power.
2 — Why is the 2 kJ energy input removed from the definition of Low Energy?
The focus of the EIR is Low Energy Testing, yet no parameters or thresholds were discussed related to Low Energy dB levels nor was there a level defined as to what is beyond Low Level dB into dB levels of High Energy.
3 — What is the decibel level limit that the seismic equipment is allowed to produce for Low Energy Geophysical Surveys?
The MND states decibel levels produced were up to 230 dB during the last 5 years of Low Energy Geophysical Surveys (chart page 2-13). Newer equipment will be able to produce higher levels of decibels creating stronger pressure shock waves.
4 — Since LESS has produced up to 230 dB, is 230 dB the decibel limit for Low Energy?
Permits for Low Energy Geophysical Surveys
5 — Why are you not requiring decibel levels produced by each piece of seismic equipment be stated on the individual permits the Harbor Masters receive about 2 weeks before each geophysical survey?
Decibel levels are currently required to be printed on the individual permits the Harbor Masters receive; however, the Update does not include this requirement. It should be noted that most permits posted or found in local harbors fail to include dB levels.
6 — Why do you propose to issue one-year and three-year blanket permits for Low Energy Geophysical Surveys rather than issuing individual survey permits?
An EIR and an individual permit needs to be required for each geophysical survey because you have not quantified the difference between low and high energy. Therefore, we can assume, some surveys with new technologically advanced equipment will be in the high-energy zone without having been properly mitigated. We are concerned that you propose to provide three-year "blanket permits" when you expect only 10 individual surveys each year.
There is no plan for incorporating the new acoustic standards that the National Oceanic and Atmospheric Administration (NOAA) is currently updating.
CSLC is using NOAA's 1998 underwater noise level standards to design the safety/exclusion zones for marine mammals. These NOAA standards are being updated, according to Amy Scholik-Schlomer, a biologist for NOAA fisheries, Washington Post - Health Science - Noise from Seismic Air Guns Could be Skirmish Before War Over Offshore Drilling , "NOAA is updating its standards for the level of noise that is harmful to sea life, and they expect to be completed by the end of 2013 or by the beginning of 2014. "
Adequate Mitigations for Human Safety
7 — Why have you not planned a safety zone for humans?
Please establish a safety/exclusion zone of 145 dB for humans. If you are unable to establish that decibels of no more than 144 dB can possibly reach a human in the water, then you must require the beach area to be closed to humans entering the water.
Thank you for including the diver research showing humans receive damaging physical impacts beginning with received decibels of 145 dB (Recreation 3.3.14 page 3-265). We are concerned that you have inadequately mitigated for human safety.
Adequate Mitigations for Marine Mammals
8 — Why are whales not listed as possibly receiving negative impacts with mitigations?
Please include impacts to whales in your charts of level A and B Takes. Impacts to whales are not included in your charts of Level A and B Takes.
9 — What is the biological difference between one acoustic impact as compared to multiple acoustic impacts occurring once every 4 seconds continuously for 10 hours each day?
The MND quoted research that used one impact to mammals.
10 — Will you consider planning a one-year study of the future geophysical surveys to validate the assumption of no significant impacts with proposed mitigations?
The assumptions for Level A and B Takes to marine mammals resulting in no significant impacts
(p. 3-106 MND) assumes the OGPP survey will be of short duration, no whales in the ocean, perfect visibility, and all mitigations will be effective.
The MND has two charts on pp. 3-168 & 3-167. The first chart estimates the Level A Take impacts to marine mammals. The second chart assumes there will be no impacts to marine mammals with new mitigations.
We are concerned that Marine Wildlife Monitors (MWMs) will not be able to spot the marine mammals and sea turtles in limited visibility in the Pacific Ocean.
Division of Environmental Planning & Management August 22, 2013
California State Lands Commission
100 Howe Ave., Suite 100-South
Sacramento, CA 95825
Email: CEQAcomments@slc.ca.gov
RE: OGPP Update Comments (subject line of email)
Dear Mrs. Lucchesi:
The Northern Chumash Tribal Council (NCTC) is located in San Luis Obispo California, and was formed under the guidelines of California Senate Bill 18 April 26, 2006 as a California State Recognized Tribal Government by the California Native American Heritage Commission, organized and dedicated to preservation of the California Native American Chumash Culture, and Sacred Sites. NCTC is dedicated to meaningful consulting with Federal, State, local governments and agencies, consulting with the development community, and supporting tribal community well-being.
We appreciate the opportunity to send our comments and suggestions from the 428 page MND document, the Northern Chumash Tribal Council (NCTC) has vital concerns, please find our comments following.
On page 3-196 & 197 CSLC states that there will be no impacts to cultural resources, respectfully we disagree. In your endeavor to describe us the Chumash Nation, you understandably rely on doctrines of the established bureaucratic-scientific worlds, which accept main stream anthropological research, data and documentation as a very safe, reliable data base to incorporate as a base line of understanding and justification. NCTC respectful disagrees with all of the conclusion and wax museum anthropology, colonial theory's, unsubstantiated data conclusion, and completely inaccurate population and villages definitions. We the Chumash Peoples are alive, we have always been here, we are still here, and as experts of our history through Collective Community Memory, we know who we are today, and yesterday.
NCTC believes that a balanced input of information is necessary for a more harmonious outcome when working with Native Americans, and that establishment sanctioned and approved experts and academicians often have personal agendas at odds with the view of Native people and that the voice of an individual establishment-selected tribal member cannot represent and negate all of the legitimate concerns of the descendants and present tribal representatives of our buried ancestors.
Unfortunately, this sometimes leads to overlooking Native Americans concerns about the way we look at life, the sacredness of our cultural resources, our ancestors and our heritage and the way in which we understand the connectivity to all things in Time and Space – as One Continuum.
The relationship of indigenous people to the land, to our ancestors, to our cultural heritage is in many ways foreign to the society in which we find ourselves, and is complicated and difficult to explain to others. This fact is made harder to overcome by the disadvantages endured by native peoples in the past and continuing to the present time.
In most cases Native Americans do not have the PhDs or Master Degrees, or even any education to speak of in comparison to government employees, or anthropological communities companies or employees, and in most cases this leads to the discarding of our opinions or the way we feel about certain issues, because society has passed us by, disregarded what we think about life or how life in our eyes it is all connected, this way of thinking is not recognized by the established government or the product of government and its society.
Any and all effects of the environment are impacts to cultural resources, the thriving California Kelp Forest and all the living animals and systems along our Sacred Coast are extremely important to the wellbeing of the Chumash Nation, the area in which proposed testing, within regions I & II, is extremely important to the Chumash Peoples and we are dedicated to the nurturing of relationships to Nature and the Ocean in the deepest ways possible. The Chumash understanding and culture-based respect for Nature comes from their long and profound relationships with coastal marine ecosystems.
The proposed testing area embodies internationally and nationally significant oceanographic features, habitat and sacred Chumash onshore and submerged sites, some as far as13 miles offshore. Codependent onshore resources include the high coastal dunes, wetlands and Chumash Sacred sites continuously occupied for 9,000 or more years.
Other significant features include: the major offshore Santa Lucia Bank with benthic communities of world-wide significance where13 species of whales and dolphins gather and feed; three major upwelling's, one of which is persistent, bringing up nutrient-rich water to feed marine life that also enhances the ecosystems of the two adjacent Sanctuaries; a 3,000 meter deep five-fingered submarine canyon through which the west coast's only persistent upwelling flows; cetacean gathering areas and migration lanes.
Additionally, there are a significant percentage of the California sea otter population; thriving kelp forests; rocky intertidal regions with world-class fish diversity and densities; large numbers of pinnipeds including pupping areas and a significant percentage of harbor seals; spawning areas and rookeries; nurseries; three estuaries; high coastal dunes; magnificent views and vistas; and, the splendid waters of Morro, Estero and San Luis Bays.
This area of proposed project MND, between the Channel Islands National Marine Sanctuary and the Monterey Bay National Marine Sanctuary and out to the western slope of the Santa Lucia Bank, warrants protection for the purpose of embracing the Chumash concept of "thrivability" wherein a deep understanding of this unique and precious marine environment is embodied within its local human inhabitants.
The proposed project will affect the pristine coastline and the submerged Chumash Sacred sites ranging from villages to solstice alignments 6 to 13 miles offshore these Sacred Sites and animals that live there must be protect, they are our cultural resources. Chumash records suggest occupation of the central coast area for 20,000 years with two recorded dates of:
* 18,000 years at Point Conception, an extremely important Chumash Sacred Place
* 14,500 years on the Channel Islands
North of Point Conception, Jalama is a Sacred Chumash village site. Other significant Chumash sites associated with the ocean ecology are found along the adjacent coastal terrain north to Point Sal including two 10,000 year-old sites within Vandenberg AFB.
Onshore San Luis Bay are four major Chumash Sacred sites – three known to have been occupied for 9,000 years:
* The site for which the City of Pismo Beach is named
* The site where the Chumash people return to renew the Traditional Ritual Ceremony Cycle
* The old Chumash Capital in the area of Avila Beach, now partially covered by sea level rise
* The Chumash Sacred site at Diablo Cove along the coastline of the Pecho Coast
Continuing north are the Chumash Village Sacred site in Los Osos, hundreds of Chumash Sacred sites ringing Morro Bay, the Chumash village Sacred site of Cayucos (continuously occupied for 8,000 years), other large sites found in the area to a mile north of Pt. Estero, and two Chumash village Sacred sites in Cambria (continuously occupied for 10,000 years).
The Chumash Peoples population was far greater then suggested in your document, possible ten times your numbers. In your MND document you speak of our Tomol, Chumash handmade plank canoe, this vessel was not invented, and we still handcraft them today.
The UN Declaration of the Rights of Indigenous Peoples must be recognized and adhered too, and NCTC does not give you permission for any acoustic testing in our Sacred Waters for any reason.
Adopted by General Assembly Resolution 61/295 on 13 September 2007
The General Assembly,
Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfillment of the obligations assumed by States in accordance with the Charter,
Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,
Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind,
Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,
Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind,
Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,
Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,
Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States,
Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur,
Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,
Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment,
Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world,
Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child,
Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character,
Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States,
Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights (2) and the International Covenant on Civil and Political Rights,2 as well as the Vienna Declaration and Programme of Action,(3) affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development,
Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law,
Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith,
Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned,
Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples,
Believing that this Declaration is a further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant activities of the United Nations system in this field,
Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples,
Recognizing that the situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration,
Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual respect:
The UN Declaration of the Rights of Indigenous Peoples is a document that states to the world that the old way of recognizing the Indigenous Peoples of the world must be changed, we are a race of Peoples, and we do not need anthropologist to tell us who we are.
The national Advisory Council on Historic Preservation (ACHP) President appointed, chairman Milford Wayne Donaldson, former California SHPO, has stated the following March 2013:
"The Advisory Council on Historic Preservation (ACHP) formally endorsed a plan to support the United Nations Declaration on the Rights of Indigenous Peoples at its winter business meeting on March 1, 2013.
I believe this is an opportunity to promote better stewardship and protection of Native American historic properties and sacred sites and in doing so helps to ensure the survival of indigenous cultures. The Declaration reinforces the ACHP's policies and goals as contained in our Native American initiatives including the Traditional Cultural Landscapes Action Plan and our participation in the interagency memorandum of understanding on the protection of sacred sites as well as in our oversight of the Section 106 review process.
The plan calls for the ACHP to raise awareness about the Declaration within the preservation community; post information about the Declaration on its Web site; develop guidance on the intersection of the Declaration with the Section 106 process; reach out to the archaeological community about the Declaration and the conduct of archaeology in the United States; and generally integrate the Declaration into its initiatives.
The ACHP oversees the Section 106 review process which requires federal agencies to take into account the impacts of their actions on historic properties. In carrying out the Section 106 process, federal agencies are required to consult with Indian tribes, Alaska Natives, and Native Hawaiian organizations when historic properties of religious and cultural significance to them may be affected. The ACHP has an Office of Native American Affairs that provides assistance to federal agencies, Indian tribes, Alaska Natives, and Native Hawaiian organizations and others. The ACHP, among many other efforts, has also published extensive guidance regarding tribal and Native Hawaiian consultation.
The ACHP encourages federal agencies, State Historic Preservation Officers, the historic preservation community, and the general public to become familiar with the United Nations Declaration on the Rights of Indigenous Peoples. It is important because it expresses both the aspirations of indigenous peoples around the world and those of States in seeking to improve their relations with indigenous peoples.
In 2010, the United States reversed its position and announced that it supports the Declaration. U.S. support goes hand in hand with the U.S. commitment to address the consequences of a history in which, as President Obama recognized, "few have been more marginalized and ignored by Washington for as long as Native Americans-our First Americans." That commitment is reflected in the many policies and programs being implemented by federal agencies, including the ACHP."
Any decision made by CSLC will affect the Federal Migratory Treaties and other many and varied Federal nexus in our Coastal Water.
Additionally, NCTC incorporates the findings, questions and comments of the California Central Coast Marine Sanctuary Alliance in its entirety please see below:
Our main concerns are having a regulatory standard for Low Energy, having individual survey permits, and having best practice mitigations to avoid negative biological impacts to humans, marine mammals, and other marine life.
The 2kJ energy input is deleted on page 2-5 of the MND. The MND lacks any limiting criteria to define the difference between Low Energy and High Energy. Clearly defining Low Energy is essential for defining OGPP, for issuing Low Energy Geophysical Permits, for determining needed warnings for public safety, and for providing adequate mitigations for marine life, Marine Protected Areas, National Marine Sanctuaries, commercial fishermen, and submerged Native American cultural heritage.
The one-year and proposed three-year blanket geophysical permits are not adequate to meet the goals of best practice mitigations. Surveys need to consider seasonal and geographic exclusions to avoid noise-producing geophysical surveys from critical habitats during important biological activity.
CSLC expects only 10 individual offshore geophysical surveys each year. While individual surveys are expected to last one to four days, several surveys lasted from 20 to 54 days during the last five years. According to the California Coastal Commission 2005 comments, "The Effects of Anthropogenic Sound on Marine Mammals," by Sara Wan, http://www.coastal.ca.gov/energy/comments-mmc-12-2005.pdf "Fundamentally, the primary goal of any management system must be to reduce or eliminate the intensity, and thus the potential for negative impacts, of noise sources by either not undertaking these activities to begin with, or through modifications to those activities (including the use of alternative, quieter technologies), and geographic and seasonal restrictions or exclusions. "
Blanket permits for several surveys do not meet this management goal.
Definition of Low Energy Geophysical Survey
Why is there no definition to be found in the document for 'Low Energy'? We think the fact that this definition is missing may present a fatal flaw in the document because the public has no reference point by which to evaluate the staff's data, references and to determine the accuracy of the staff's conclusions.
1 — What is your new definition of Low Energy that specifically quantifies the distinctions between High and Low Energy Geophysical Surveys?
The "2.0 kilojoule threshold " for Low Energy has been removed ("The proposed OGPP Update no longer applies this 2kJ threshold," page 2-5). Therefore, seismic equipment could input more power.
2 — Why is the 2 kJ energy input removed from the definition of Low Energy?
The focus of the EIR is Low Energy Testing, yet no parameters or thresholds were discussed related to Low Energy dB levels nor was there a level defined as to what is beyond Low Level dB into dB levels of High Energy.
3 — What is the decibel level limit that the seismic equipment is allowed to produce for Low Energy Geophysical Surveys?
The MND states decibel levels produced were up to 230 dB during the last five years of Low Energy Geophysical Surveys (chart page 2-13). Newer equipment will be able to produce higher levels of decibels creating stronger pressure shock waves.
4 — Since LESS has produced up to 230 dB, is 230 dB the decibel limit for Low Energy?
Permits for Low Energy Geophysical Surveys
5 — Why are you not requiring decibel levels produced by each piece of seismic equipment be stated on the individual permits the Harbor Masters receive about 2 weeks before each geophysical survey?
Decibel levels are currently required to be printed on the individual permits the Harbor Masters receive; however, the Update does not include this requirement. It should be noted that most permits posted or found in local harbors fail to include dB levels.
6 — Why do you propose to issue one-year and three-year blanket permits for Low Energy Geophysical Surveys rather than issuing individual survey permits?
An EIR and an individual permit needs to be required for each geophysical survey because you have not quantified the difference between low and high energy. Therefore, we can assume, some surveys with new technologically advanced equipment will be in the high-energy zone without having been properly mitigated. We are concerned that you propose to provide 3-year "blanket permits" when you expect only 10 individual surveys each year.
There is no plan for incorporating the new acoustic standards that the National Oceanic and Atmospheric Administration (NOAA) is currently updating.
CSLC is using NOAA's 1998 underwater noise level standards to design the safety/exclusion zones for marine mammals. These NOAA standards are being updated, according to Amy Scholik-Schlomer, a biologist for NOAA fisheries. (See: Washington Post.com - National Health Science: Noise-From-Seismic-Air-Guns-Could-Be-Skirmish-Before-War-Over-Offshore-Drilling)
"NOAA is updating its standards for the level of noise that is harmful to sea life, and they expect to be completed by the end of 2013 or by the beginning of 2014. "
Adequate Mitigations for Human Safety
7 — Why have you not planned a safety zone for humans?
Please establish a safety/exclusion zone of 145 dB for humans. If you are unable to establish that decibels of no more than 144 dB can possibly reach a human in the water, then you must require the beach area to be closed to humans entering the water.
Thank you for including the diver research showing humans receive damaging physical impacts beginning with received decibels of 145 dB (Recreation 3.3.14 page 3-265). We are concerned that you have inadequately mitigated for human safety.
Adequate Mitigations for Marine Mammals
8 — Why are whales not listed as possibly receiving negative impacts with mitigations? Please include impacts to whales in your charts of level A and B Takes. Impacts to whales are not included in your charts of Level A and B Takes.
9 — What is the biological difference between one acoustic impact as compared to multiple acoustic impacts occurring once every 4 seconds continuously for 10 hours each day? The MND quoted research that used one impact to mammals.
10 — Will you consider planning a one-year study of the future geophysical surveys to validate the assumption of no significant impacts with proposed mitigations?
The assumptions for Level A and B Takes to marine mammals resulting in no significant impacts
(p. 3-106 MND) assumes the OGPP survey will be of short duration, no whales in the ocean, perfect visibility, and all mitigations will be effective.
The MND has two charts on pp. 3-168 & 3-167. The first chart estimates the Level A Take impacts to marine mammals. The second chart assumes there will be no impacts to marine mammals with new mitigations.
We are concerned that Marine Wildlife Monitors (MWMs) will not be able to spot the marine mammals and sea turtles in limited visibility in the Pacific Ocean.
11 — Why have you not proposed more mitigation for sea otters?
Your Initial Study of the last 5 years of Low Energy Geophysical Surveys indicates that Level A and B impacts to mammals have occurred, and you propose mitigations that you expect will result in no significant impacts. You did not provide the obvious mitigation: lower the threshold of power the equipment can produce.
Sea Otter population strandings increased during LESS
The sea otter declining trend south of Cayucos, a perplexing pattern that may be more related to shifts in causes of sea otter mortality. In particular, a dramatic increase in shark-bite deaths over the past 5 years in the areas between Estero Bay and Pismo Beach is likely contributing to the lack of growth in this region.
http://www.werc.usgs.gov/ProjectSubWebPage.aspx?SubWebPageID=22&ProjectID=91
Adequate Mitigations for Marine Protected Areas
12 — Why are the MPAs not on your California Geophysical Regions map, and why don't you require an individual permit for a survey within or near an MPA?
Please add the MPAs to your California Geophysical Zone map and require an individual permit for a survey that will go within an MPA. The permit process ignores the MPA's by issuing the blanket permits before considering the survey area within an MPA and trusts the survey company will also receive any necessary permits from CA F&W.
This is the section from the MND concerning MPAs:
Low Energy Offshore Geophysical Permit Program Update MND, July 2013, page 3-190, section MMBIO-9
Limitations on Survey Operations in Select Marine Protected Areas (MPAs) — Prior to commencing survey activities, geophysical operators shall coordinate with the CSLC and CA Department of Fish and Wildlife (CDGW) regarding proposed operations within MPAs. The scope and purpose of each survey proposed within a MPA shall be defined, and the applicability to the survey to the allowable MPA activities shall be conducted. No Offshore Geophysical Permit Program surveys shall be allowed within special closure areas. If deemed necessary by CDRW, geophysical operators will pursue a scientific collecting permit, or other appropriate permit to secure approval to work within a MPA< and shall provide a copy of such authorization to the CSLC as part of the required 15-day notification. CSLC and/or CDFW may impose further restrictions on survey activities as conditions of approval.
Adequate Mitigations for National Marine Sanctuaries
13 — Why are National Marine Sanctuaries not on your California Geophysical Regions map, and why do you not require an individual permit for a survey within or near a National Marine Sanctuary?
The MND provides no considerations for National Marine Sanctuaries. Surveys within and adjacent to Sanctuaries must be prohibited or negotiated with the National Marine Sanctuary. Marine Sanctuary resources must be considered and protected.
Mitigations for fish and birds
14 — What are the mitigations for fish and birds?
The tables provided on pages 3-168 and 3-171 recognize Level A and Level B Take associated with OGPP technologies. Tables provided on pages 3-169 and 3-172 go on to describe how Take would be "less than significant with mitigations" such as the addition of surface observers. As written in the MND, the observers will reduce impacts on birds and marine mammals that hunt fish Table 3-25 recognizes an "Area of Concern" for fish within 20m of the survey source.
Using a vessel traveling at 4.0 knots, the survey area would have covered over 3 million square feet of lateral ocean area (a horizontal water column of over 4600 cubic meters) in one hour. This entire sub-surface ocean area is unmitigated in the MND and directly impacts hunting opportunities for marine mammals and fish. This feedback mechanism of Level A and Level B Take of fish, and its impact on the food source for marine mammals and birds, should be added to potential impacts in the MND.
Adequate Mitigations for Commercial Fishermen
15 — Why are you not planning to mitigate impacts to the fishermen and others who are displaced from a survey that lasts more than 5 days?
The MND provides no mitigation for commercial fishermen. Yet the former Low Energy Surveys have a system for mitigation to fishermen. We suggest you work with the CA Dept. of Fish and Wildlife to better understand the fishing regulations, especially for nearshore fishermen.
NCTC would like to thank you for the opportunity to comment on the MND and for the OGPP Update, we sincerely hope that you will consider our comments and concerns, this is a time for change, and the California Native American Communities have a wonderful perspective of the environment, we have been taking care of this land forever. In the last 150 years we have seen great destruction to our lands and environment, all for the greed of our precious resources, CSLC needs to pay attention to the preservation of our great land or we will have nothing left for the future generations to come.
Respectfully,
Fred Collins
Tribal Administrator
Northern Chumash Tribal Council
