Conducting Consultations Pursuant to Section 304(d) of the National Marine Sanctuaries Act

Thank you for the opportunity to comment on the National Oceanic and Atmospheric Administration's ("NOAA") solicitation of comments entitled Conducting Consultations Pursuant to Section 304(d) of the National Marine Sanctuaries Act ("NMSA"). 73 Fed. Reg. 50259 (August 26, 2008). These comments are submitted on behalf of the Center for Biological Diversity ("the Center"), a non-profit public interest conservation organization with nearly 60,000 members nationally. The Center is dedicated to protecting imperiled species and their habitats by combining scientific research, public organizing, and administrative and legal advocacy. NOAA should develop regulations to clarify the consultation requirements under Section 304(d). The Center for Biological Diversity supports the creation of regulations to implement the consultation requirements under Section 304(d) of the NMSA. The NMSA provides NOAA with the authority to review all federal agency actions that may potentially affect sanctuary resources and with authority to recommend alternatives to the federal agency action. NOAA should adopt regulations clarifying the circumstances triggering the consultation requirement, the actions necessary to comply with the consultation requirement and the mandatory duty to restore or replace any sanctuary resource damaged by a federal agency action. In recognition of the inherent difficulty of replacing or restoring sanctuary resources and their values to a national marine sanctuary once damage has taken place, the interagency consultation provision was added to the NMSA in order to prevent damage to sanctuary resources before it occurred. H.R. Rep. 102-565, at 7 (1992). In addition, by requiring a federal agency to replace or restore any sanctuary resource damaged by an agency action even after going through Section 304(d) consultation, the consultation provision acts as an additional deterrent to damaging sanctuary resources. Unfortunately, to date, the consultation requirement has not effectively prevented federal agency actions that are likely to damage sanctuary resources. Implementing regulations clarifying the consultation requirement could make the consultation provision an effective tool to proactively protect sanctuary resources. Section 304(d) regulations should establish a mandatory consultation process similar to the Endangered Species Act Section 7 consultation process. The section 304(d) regulations should make clear that any federal agency planning to undertake an activity that may affect NMS resources must initiate consultation with NOAA regarding the effect of the activity on sanctuary resources by providing a reasonably detailed written description of the proposed activity and its anticipated effects on sanctuary resources. The regulations should further clarify that if the action agency fails to provide such a description, or otherwise fails to properly initiate consultation, that NOAA has the authority to require the action agency to initiate consultation. Furthermore, consistent with consultation requirements, the regulations should establish that the action agency bears the burden of showing that its proposed action will not adversely impact sanctuary resources. Finally, the regulations should specify that the agency shall not make any irreversible or irretrievable commitment of resources until consultation is complete. Section 304(d) regulations must be consistent with the unambiguous statutory requirement that consultation is mandatory for federal agency actions both internal and external to a national marine sanctuary. The NMSA requires consultation on federal agency actions "internal or external to a national marine sanctuary . . . that are likely to destroy, cause the loss of, or injury any sanctuary resource." 16 U.S.C. § 1434(2)(d)(1)(A). The legislative history of the NMSA further clarifies that the consultation provision applies to: "(1) activities inside sanctuary boundaries affecting sanctuary re…