Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361
Overview of the Act
Section 1371 places a moratorium on the “taking” of marine mammals, including a complete cessation of harassing, hunting, capturing, or killing, except as approved under the Act. 1
Exceptions are granted through permits “issued for the taking and importation [of marine mammals] for purposes of scientific research and for public display if . . . the taking proposed in the application for any such permit, or the importation proposed to be made, is first reviewed by the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals.” 16 U.S.C. § 1371(1).
Section 1371(5)(A) allows U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region, the “incidental, but not intentional, taking by citizens while engaging in that activity within that region of small numbers of marine mammals of a species or population stock that is not depleted . . . .” 16 U.S.C. § 1371(5)(A).
Activity and site-specific regulations can only be issued on request, and following notice and comment rulemaking under the Administrative Procedure Act.
Although specific, regulations neither address nor permit individual operations. A Letter of Authorization (LOA) is required for individual operations.
At present, no approved state Coastal Management Program includes LOAs among the activities requiring consistency review. Although the issue has been raised (but not resolved) in Alaska, there are at least three reasons why LOA applications should not require consistency certifications:
An LOA is not a permit to conduct an activity, it merely authorizes certain impacts on marine mammals in the event they occur as a result of activities already permitted by other federal agencies.
Given the rigorous standards which must be met before the LOA can issue, any effect authorized by an LOA could not “affect a land or water use or natural resource of the coastal zone.”
Most activities for which LOAs are requested will have been subject to consistency review during review of the applicable plan of exploration or development and production plan.
Endangered Species Act (1973), 16 U.S.C. § 1531 et seq.
Overview of the Act
The Act requires that federal agencies consult with the secretary of commerce in order to ensure that any action will not likely jeopardize the continued existence of any endangered or threatened marine species.
Prohibition Against “Taking” Members of Endangered or Threatened Species
It is unlawful for any person subject to U.S. jurisdiction to “take” any “endangered species of fish or wildlife” within the United States, in its territorial sea, and on the high seas. 16 U.S.C. §1538(a)(1)(B) and (C).
The term “take” is defined to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).
Harass means “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to breading, feeding or sheltering.” 50 C.F.R. § 17.3.
Harm means “an act which actually kills or injures wildlife. Such act may include significant habitat
The “harassment” portion of the definition is troublesome and has been broadly construed (at least by those opposed to offshore operations) to include almost any activity that would, or could, elicit a behavioral response.
Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.
OCR for page 69
AN ASSESSMENT OF TECHNIQUES FOR REMOVING OFFSHORE STRUCTURES Appendix D Regulations Governing Removal of Offshore Structures FEDERAL STATUTES Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 Overview of the Act Section 1371 places a moratorium on the “taking” of marine mammals, including a complete cessation of harassing, hunting, capturing, or killing, except as approved under the Act. 1 Exceptions are granted through permits “issued for the taking and importation [of marine mammals] for purposes of scientific research and for public display if . . . the taking proposed in the application for any such permit, or the importation proposed to be made, is first reviewed by the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals.” 16 U.S.C. § 1371(1). Section 1371(5)(A) allows U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region, the “incidental, but not intentional, taking by citizens while engaging in that activity within that region of small numbers of marine mammals of a species or population stock that is not depleted . . . .” 16 U.S.C. § 1371(5)(A). Activity and site-specific regulations can only be issued on request, and following notice and comment rulemaking under the Administrative Procedure Act. Although specific, regulations neither address nor permit individual operations. A Letter of Authorization (LOA) is required for individual operations. At present, no approved state Coastal Management Program includes LOAs among the activities requiring consistency review. Although the issue has been raised (but not resolved) in Alaska, there are at least three reasons why LOA applications should not require consistency certifications: An LOA is not a permit to conduct an activity, it merely authorizes certain impacts on marine mammals in the event they occur as a result of activities already permitted by other federal agencies. Given the rigorous standards which must be met before the LOA can issue, any effect authorized by an LOA could not “affect a land or water use or natural resource of the coastal zone.” Most activities for which LOAs are requested will have been subject to consistency review during review of the applicable plan of exploration or development and production plan. Endangered Species Act (1973), 16 U.S.C. § 1531 et seq. Overview of the Act The Act requires that federal agencies consult with the secretary of commerce in order to ensure that any action will not likely jeopardize the continued existence of any endangered or threatened marine species. Prohibition Against “Taking” Members of Endangered or Threatened Species It is unlawful for any person subject to U.S. jurisdiction to “take” any “endangered species of fish or wildlife” within the United States, in its territorial sea, and on the high seas. 16 U.S.C. §1538(a)(1)(B) and (C). The term “take” is defined to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). Harass means “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to breading, feeding or sheltering.” 50 C.F.R. § 17.3. Harm means “an act which actually kills or injures wildlife. Such act may include significant habitat 1 The “harassment” portion of the definition is troublesome and has been broadly construed (at least by those opposed to offshore operations) to include almost any activity that would, or could, elicit a behavioral response.
OCR for page 69
AN ASSESSMENT OF TECHNIQUES FOR REMOVING OFFSHORE STRUCTURES modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. Exceptions and Exemptions: Permit: granted for “any taking otherwise prohibited . . . if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B). Exemption on Taking of Endangered Species: exemption granted by vote of not less than five members of the Endangered Species Committee if it determines on the record that the benefits of such action clearly outweigh the benefits of alternative courses of action. 16 U.S.C. § 1536(h)(1)(A)(ii). Any taking in compliance with the terms and conditions specified in an “incidental take” statement in a biological opinion issued under Section 7 of the ESA. 16 U.S.C. § 1536(0)(2). ESA § 7: Interagency Cooperation and Consultation Federal agencies should not perform “actions” that “jeopardize the continued existence of any endangered species or threatened species” and are likely to “result in the destruction of adverse modification of habitat ” of endangered or threatened species. 16 U.S.C. § 1536(a)(2). “Actions” affecting fish and animals should be reported to the Fish and Wildlife Service (FWS). “Actions” affecting plant-life should be reported to the National Oceanic and Atmospheric Administration (NOAA). Following consultation with the affected agency, FWS or NOAA will issue a “biological opinion” detailing how the agency action affects the species or its critical habitat. 16 U.S.C. § 1536(b)(3)(A). FWS and/or NOAA will issue an Incidental Take Statement with the biological statement under the following circumstances: FWS and/or NOAA decide the action will not jeopardize a species reasonable and prudent alternatives to the action will avoid jeopardy incidental taking of the species will not result in jeopardy if the species is a marine mammal whose taking is authorized under the Marine Mammal Protection Act Incidental Take Statements shall detail the “terms and conditions“ the agency must follow. Incidental Take Statement. Section 7(b)(4) of the Endangered Species Act requires that when a proposed agency action is found to be consistent with Section 7(a)(2) of the Act and the proposed actions may incidentally take individuals of listed species, National Marine Fisheries Service (NMFS) will issue a statement that specifies the impact (amount or extent) of such incidental taking. Incidental taking by the federal agency or applicant that complies with the specified terms and conditions of this statement is authorized and exempt from the taking prohibitions of the Act. Based on stranding records, incidental captures aboard commercial shrimp vessels, and historical data, five species of sea turtles are known to occur in northern Gulf of Mexico waters. Current available information on the relationship between sea turtle mortality and the use of high-velocity explosives to remove oil platforms indicates that injury or death of sea turtles may result from the proposed actions. Therefore, pursuant to Section 7(b)(4) of the Endangered Species Act, an incidental take (by injury or mortality) level of one documented Kemp's ridley, green, hawksbill, or leatherback turtle or ten loggerhead turtles is set for all removal operations conducted under the terms and conditions of this Incidental Take Statement. The level of taking specified here is cumulative for all removals covered by this consultation. If the incidental take meets or exceeds this specified level, Minerals Management Service (MMS) must reinitiate consultation. The Southeast Region NMFS will cooperate with MMS in the review of the incident take to determine the need for developing further mitigation measures. The reasonable and prudent measures that NMFS believes are necessary to minimize the impact of incidental takings have been discussed with MMS and will be incorporated in the removal design for “standard ” structure removals. The following terms and conditions are established for these removals to implement the identified mitigation measures and to document the incidental take should such take occur: Qualified observer(s), as approved by NMFS, must be used to monitor the area around the site prior to, during, and after detonation of charges. Observer coverage will begin 48 hours prior to detonation of charges. If sea turtles are observed in the vicinity of the platform and thought to be resident at the site, pre- and post-detonation diver surveys must be conducted. On days that blasting operations occur, a 30-minute aerial survey must be conducted within 1 hour before and 1 hour after each blasting episode. The NMFS-approved observer or NMFS on-site personnel (NMFS employee only) must be used to check for the presence of turtles and, if possible, to identify species. If weather conditions (fog, excessive winds, etc.)
OCR for page 69
AN ASSESSMENT OF TECHNIQUES FOR REMOVING OFFSHORE STRUCTURES make it impossible to conduct aerial surveys, blasting activities may be allowed to proceed if approved by the NMFS or MMS personnel on site. If sea turtles are observed in the vicinity of the platform (within 1,000 yards of the site) prior to detonating charges, blasting will be delayed until attempts are successful in removing them at least 1,000 yards from the blast site. The aerial survey must be repeated prior to resuming detonation of charges. Detonation of explosives will occur no sooner than 1 hour following sunrise and no later than one hour prior to sunset. However, if it is determined by NMFS or MMS on-site personnel that special circumstances justify a modification of these time restrictions and that such modification is not likely to adversely impact listed species, blasting may be allowed to proceed outside of this time frame. During all diving operations (working dives as required in the course of the removals), divers will be instructed to scan the subsurface areas surrounding the platform (blasting) sites for turtles and marine mammals. Any sightings must be reported to the NMFS or MMS on-site personnel. Upon completion of blasting, divers must report and attempt to recover any injured or dead sea turtles or marine mammals that are sighted. Charges must be staggered (0.9 second or 900 milliseconds apart) for each group of structures to minimize the cumulative effects of the blasts. If a removal operation involves multiple groupings of structures, the interval between detonation of charges for each group should be minimized to avoid the “chumming” effect. Whenever such intervals exceed 90 minutes, the aerial survey must be repeated. The use of scare charges should be avoided to minimize the “chumming effect.” Use of scare charges may be allowed only if approved by the NMFS or MMS on-site personnel. A report summarizing the results of the removal and mitigation measures must be submitted to the MMS Gulf of Mexico Region within 15 working days of the removal. A copy of the report must be forwarded to NMFS, Southeast Region. This Incidental Take Statement applies only to endangered and threatened sea turtles. In order to allow an incidental take of a marine mammal species, the taking must be authorized under Section 101(a)(5) of the Marine Mammal Protection Act of 1972. Although interest has been expressed in obtaining an exception authorizing a limited take of dolphins incidental to abandonment activities, no marine mammal take is authorized until appropriate small take regulations are in place and related “letters of authorization” are issued. Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. Overview of the Act The Outer Continental Shelf Lands Act (OCSLA) mandates that the subsoil and seabed of the outer continental shelf are subject to the jurisdiction, control, and power of the United States (43 U.S.C. § 1332(1)). The OCSLA assists states and their affected local governments in protecting their coastal zones from the temporary or permanent adverse affects of exploration, development, and production of the minerals of the outer continental shelf (43 U.S.C. § 1332(4)(A)). The OCSLA requires that all “operations in the Outer Continental Shelf should be conducted in a safe manner by well-trained personnel using technology, precautions, and techniques sufficient to prevent or minimize the likelihood of blowouts, loss of well control, fires, spillages, physical obstruction to other users of the waters or subsoil and seabed . . . .” (43 U.S.C. § 1332(6)). Laws and Regulations The OCSLA states that all artificial islands and fixed structures erected on the outer continental shelf shall be subject to the laws of the state which it would be within if its boundaries were extended seaward to the outer margin of the outer continental shelf (43 U.S.C. § 1333(a)(2)(A)). The civil and criminal laws of each state governing portions of the outer continental shelf must be consistent with other federal laws and regulations of the secretary of the interior that are in effect. The OCSLA grants authority to the secretary of transportation to promulgate and enforce Coast Guard regulations with respect to lights and other warning devices, safety equipment, and other matters relating to the promotion of safety of life and property on artificial islands and installations (43 U.S.C. § 1333(d)(1)). Administration of Leasing The secretary of the interior must cooperate with the relevant departments and agencies of the federal government and of the affected states in the enforcement of safety, environmental, and conservation laws and regulations (43 U.S.C. § 1334(a)).
OCR for page 69
AN ASSESSMENT OF TECHNIQUES FOR REMOVING OFFSHORE STRUCTURES Suspension or temporary prohibition of any operation or activity pursuant to any lease or permit may ensue if “there is a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life), to property, . . . or mineral deposits ” in the outer continental shelf (43 U.S.C. § 1334(a)(1)). Permit cancellation may result if, after a hearing, the secretary of the interior determines that there is: serious harm or damage to life, property, mineral, national security or defense, or to the marine, coastal, or human environment threat of harm or damage that will not disappear or decrease to an acceptable extent within a reasonable period of time any advantages to cancellation that outweigh the advantages of continuing such lease or permit force (43 U.S.C. § 1334(a)(2)(A)(i-iii)) Minerals Management Service Regulations Removal of Platforms: 30 C.F.R. Part 250.143 “The lessee shall remove all structures in a manner approved by the Regional Supervisor to assure that the locations have been cleared of all obstructions to other activities in the area.” “All platforms (including casing, wellhead equipment, templates, and pilings) shall be removed by the lessee to a depth of at least 15 feet below the ocean floor or to a depth approved by the Regional Supervisor based upon the type or structure or ocean-bottom conditions. ” “The lessee shall verify by appropriate means that the location has been cleared of all obstructions. The results of the location clearance survey shall be submitted to the Regional Supervisor by means of a letter from the company performing the work certifying that the area was cleared of all obstructions, the date the work was performed, the extent of the area surveyed, and the survey method used.” Abandonment of Wells and Site Clearance: 30 C.F.R. §§ 250.110-.114 The goal of this section is to abandon wells in a manner assuring “downhole isolation of hydrocarbon zones, protec- tion of freshwater aquifers, clearance of sites so as to avoid conflict with other uses of the [OCS], and prevention of migration of formation fluids within the wellbore or to the seafloor” (§ 250.110). Lessee must have MMS district supervisor's prior approval to begin abandonment; must file Form MMS-124 in advance and a report on the same form within 30 days after abandonment work has been completed (§ 250.111). Lessee shall verify site clearance after abandonment by one or more of the following methods as approved by the district supervisor: drag a trawl in two directions across the location perform a diver search around the well bore scan across the location with a side-scan or bottom-scan sonar Form MMS-124 must include certification that the area was cleared of all obstructions, the date the work was performed, and the extent of the area searched around the location (30 C.F.R. § 250.114(b)). Notice To Lessees (NTL) No. 92-022 Notice to Lessees and Operators of Federal Oil and Gas Leases in the Outer Continental Shelf, Gulf of Mexico OCS Region. Minimum Interim Requirements for Site Clearance (and Verification) of Abandoned Oil and Gas Structures in the Gulf of Mexico.3 All abandoned wells and platforms must be cleared of all obstructions relating to oil and gas activities in the following locations: exploratory or delineation walls drilled with a mobile offshore drilling unit, the area covered by a 300-foot radius circle centered on the well platforms, the area covered by a 1,320-foot radius circle centered on the platform geometric center single-well caissons and well protectors, the area covered by a 600-foot radius circle centered on the well Lessees must develop procedural plans for site clearance verification 4 of platform or structure abandonment, to be submitted with permit applications for platform or structure removal to MMS regional supervisor (field operations). High-frequency sonar searches shall be conducted over all exploratory or delineation wells, platforms, and 2 NTL No. 92-02 is provided pursuant to the authority prescribed in 30 C.F.R. § 250.4(b). 3 These interim procedures will remain in effect from the date of issue until revoked, modified, or superseded by revised regulations. 4 Vessels used for site clearance verification operations shall be equipped with a navigational positioning system capable of providing position accuracy of ±30 feet.
OCR for page 69
AN ASSESSMENT OF TECHNIQUES FOR REMOVING OFFSHORE STRUCTURES single-well caissons and well protectors. This procedure may be waived by the regional supervisor. Platforms and single-well caissons and well protectors located in water depths of less than 300 feet shall have their locations trawled over 100 percent of their limits in two directions. The trawling contractor may not be associated with the company performing the salvage work. Trawling contractors performing site clearance verification must possess valid commercial trawling licenses from either Louisiana, Texas, Mississippi, Alabama, or Florida, and must have at least two consecutive years of experience. Trawling vessels must be equipped with a navigational system and plotter that will produce a realtime track plot of the vessel. Trawling nets must have a maximum stretched mesh size of 6 inches and may not be equipped with turtle excluder devices. Maximum drag time is 30 minutes. Lessees should contact former pipeline owners to determine whether or not the line will cause an obstruction to unrestricted trawling operations. Trawling should not be conducted closer than 300 feet to any existing shipwreck. Active pipelines, which are buried and for which no above-grade obstructions (such as valves) exist, are to be trawled without any restrictions placed on the trawling procedure or pattern. Trawling shall be carried out no closer than 100 feet to unburied active pipelines greater than 8 inches in diameter. Trawling in the direction of the line shall be carried out for unburied active pipelines smaller than 8 inches in diameter. Modifications to trawling requirements must be approved by the regional supervisor, field operations. District supervisors must receive at least 48 hours notice prior to conducting the clearance survey. Site clearance-verification must be completed within 60 days of completion of platform or structure removal or abandonment operations. Verification letters from the company performing the salvage work and the trawling contractor shall be submitted with the subsequent sundry notices and reports on well, platform, or structure removal, and must include sufficient detail. Approximately six abandoned structure sites will be selected by the regional supervisor, field operations, for expanded clearance and verification coverage to confirm that extent of debris is limited to platforms and well caissons. Magnuson Fishery Conservation and Management Act of 1976 (FWCA), 16 U.S.C. § 1802 et seq. Overview of the Act The FWCA, 16 U.S.C. § 1801, et seq., promotes domestic commercial and recreational fishing under sound conservation and management principles. The Act strives to “consider the effects of fishing on immature fish and [to] encourage [the] development of practical measures to avoid unnecessary waste of fish . . . .” The term “fishing” is defined as the “catching, taking, or harvesting of fish; the attempted catching, taking, or harvesting of fish; any other activity which can reasonably be excepted to result in the catching, taking, or harvesting of fish; . . . .” 16 U.S.C. § 1802(10)(A),(B), and (C) [emphasis added]. Section 1811 establishes a fishery conservation zone that runs contiguous to the territorial sea of the United States. Section 1812(a)(1) grants the United States exclusive fishery management authority over all fish within the fishery conservation zone. Section 1851 (a)(1) sets national standards for fishery conservation and management whose measures “shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry.” Eight regional fishery management councils (FMCs) were created by the Act. FMCs have the discretion to prescribe “measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery. ” 16 U.S.C. § 1853(b)(8). Clean Water Act (CWA), 33 U.S.C. § 1251 et seq. Overview of the Act The CWA, 33 U.S.C. § 1251 et seq., states that the objective of this Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Furthermore, “it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife” be established. Section 102(a) of the act authorizes the administrator the Environmental Protection Agency to prepare and develop comprehensive programs for preventing, reducing, or eliminating the pollution of navigable waters and ground waters. In addition, these comprehensive programs shall consider necessary improvements to “conserve such waters for the protection and propagation of fish and aquatic life and wildlife. ”
OCR for page 69
AN ASSESSMENT OF TECHNIQUES FOR REMOVING OFFSHORE STRUCTURES National Fishing Enhancement Act of 1984, 33 U.S.C. § 2101 et seq. Overview of the Act The purpose of the Act is to promote and facilitate the development of artificial reefs that will enhance fishery resources and commercial and recreational fishing (33 U.S.C. § 2101(b)). Section 2102 establishes broad artificial-reef development standards, including those which will: enhance fishery resources to the maximum extent practicable minimize environmental risks and risks to personal health and property be consistent with generally accepted principles of international law and shall not create any unreasonable obstruction to navigation (33 U.S.C. § 2102(1),(4), and (5)) National Artificial Reef Plan The secretary of commerce will provide leadership in developing and publishing a long-term plan that identifies criteria for siting artificial reefs, design and construction criteria, methodologies for monitoring compliance and managing the use of artificial reefs, and provide a synopsis of existing information and future research needs (33 U.S.C. § 2103 (1-6)). Permits for Construction and Management of Artificial Reefs The secretary of the army will issue permits for reef development projects in compliance with the National Artificial Reef Plan, and regional, state, and local criteria (33 U.S.C. § 2104(b)). Permits subject to this section shall specify the design, location for reef construction, and construction materials. Permits shall specify terms and conditions for the construction and maintenance of the artificial reef as are necessary for compliance with all applicable provisions of law. Persons holding permits shall not be liable for damages caused by activities required to be undertaken by the terms and conditions of the permit. (33 U.S.C. § 2104(c)(1)). Persons holding permits shall be liable if damages arise from operations outside the terms and conditions of the permit. (33 U.S.C. § 2104(c)(2)). Persons violating any provision of a permit shall be liable to the United States for a civil penalty not to exceed $10,000 for each violation. (33 U.S.C. § 2104(e)). Coast Guard Regulations Aids to Navigation on Artificial Islands and Fixed Structures Artificial islands and structures that are erected on or over the seabed and subsoil of the outer continental shelf must be equipped with obstruction lights and fog signals meeting the requirements of (33 C.F.R. Part 67). Marking of Structures, Sunken Vessels, and Other Obstructions “Structures” mean any fixed or floating obstruction, intentionally placed in the water, which may interfere with or restrict marine navigation. (33 C.F.R. § 64.06). Upon abandonment of a lease, if a platform is only partly removed or is converted to an artificial reef, 33 C.F.R. Part 64 may require that the submerged “structure” be marked with lights or signals. Section 64.11 mandates that the owner of a vessel, raft, or other craft wrecked and sunk in a navigable channel shall mark it immediately with a buoy or daymark during the day and with a light at night. Prior to establishing a structure, the owner/operator must apply to the Coast Guard for authorization to mark it. (33 C.F.R. § 64.21). U.S. Department of Commerce—National Oceanic and Atmospheric Administration Regulations (Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. § 1431 et seq.) NOAA has certain restrictions with regard to the use of explosives at marine sanctuaries that are found in 15 C.F.R. Part 943. The rule was finalized on February 24, 1995 (60 F.R. 10312), and adopted the rule that was proposed on December 5, 1991 (57 F.R. 63634). The final rule states in 15 C.F.R. Part 943.5(a)(14), “Prohibited Activities,” that the following activity is prohibited and thus unlawful for any person to conduct or cause to be conducted: “Possessing, except for valid enforcement purposes, or using explosives or releasing electrical charges within the sanctuary.” There are two marine sanctuaries in the Gulf of Mexico at this time: East Flower Garden Bank and West Flower Garden Bank. These are located in a small area of the southern portion
OCR for page 69
AN ASSESSMENT OF TECHNIQUES FOR REMOVING OFFSHORE STRUCTURES of the High Island planning area. The provision would only affect a small number of platforms (2 to 3), which are adjacent to the marine sanctuary. INTERNATIONAL LAW Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention or LC), done December 29, 1972, 26 U.S.T. 2403, T.I.A.S. No. 8165. Article III defines dumping to include “any deliberate disposal at sea of . . . platforms or other man-made structures” but to exclude “matter incidental to . . . the normal operations of . . . platforms” and matter placed in the sea “for a purpose other than the mere disposal thereof . . . .” As a general matter, the parties to the LC agree to prohibit the dumping of wastes and other matter, except as allowed under the LC. (LC Art. IV). The United States has advised the secretariat of the International Maritime Organization of its view that constructive abandonment, toppling, or other sea disposal of platforms, for no purpose other than disposal, is “dumping” governed by the LC. The United States views the conversion of platforms to other uses, such artificial reefs, and the toppling of structures by natural causes not to be “dumping.” Convention on the Continental Shelf, in force June 10, 1964, 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311 (the 1958 Convention on the Continental Shelf) Article 5, Part One: “The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the resources of the sea . . . .” Article 5, Part Two: “[T]he coastal State [i.e., nation] is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the exploitation of its natural resources . . . .” Article 5, Part Five: “Any installations which are abandoned or disused must be entirely removed.” “Thus, the Convention requires the complete removal of oil and gas structures which have been abandoned or are no longer being used. It is our view that oil and gas structures purposely left in place for use as artificial fishing reefs do not fall within the requirement of the Convention.” Customary International Law The U.N. Convention on the Law of the Sea (1982 UNCLOS), 21 International Legal Materials 1261 (1982), has not been ratified by the United States. 18 Weekly Comp. Pres. Doc. 887 (1982). Nevertheless, the United States accepts many of its provisions as reflective of customary international law. Article 60 of the 1982 UNCLOS prescribes that any installations or structures that are abandoned or disused shall be removed to ensure safety of navigation, taking into account any generally accepted international standards established in this regard by the competent international organization, and that such removal shall also have due regard to fishing, protection of the marine environment, and the rights and duties of other States. Citing the principle of law in Article 60 as its authority, the Maritime Safety Committee of the International Maritime Organization (IMO) issued Guidelines and Standards for the Removal of Offshore Installations and Structures on the Continental Shelf and in the Exclusive Economic Zone (IMO Removal Guidelines) on May 4, 1988 (M.S.C. Circ. 490). With minor changes, the Assembly of the IMO adopted them in 1989. IMO Removal Guidelines, Part 1.1: “Abandoned or disused offshore installations or structures on any continental shelf or in any exclusive economic zone are required to be removed, except where non-removal or partial removal is consistent with the following guidelines and standards.” IMO Removal Guidelines basically call for a case-by-case review of the effects of nonremoval on navigation and the environment, the feasibility of removal, and the desirability of allowing a new use. For example, IMO Removal Guidelines, Part 3.1, calls for the complete removal of an abandoned platform “standing in less than 75 meters of water and weighing less than 4,000 tons in air, excluding the deck and superstructure . . . .” But Part 3.4 allows such a platform to remain “wholly or partially in place” if it will serve a new use. STATE LAW Louisiana Artificial Reef Initiative Act The emplacement of oil and gas platforms off the Louisiana coast has resulted in an extensive artificial reef system providing prime recreational fishing areas. Removal of oil and gas platforms could result in major losses of revenue for Louisiana fishermen. The Louisiana Artificial Reef Initiative was created to compensate for this potential loss of habitat and involves representatives from the university, state, federal, and industry levels. The Louisiana Artificial Reef Plan contains guidelines for implementation of a state artificial reef program, which will be periodically updated through the Louisiana Artificial Reef Council. Phase 1 of the Reef Program is composed of nine
OCR for page 69
AN ASSESSMENT OF TECHNIQUES FOR REMOVING OFFSHORE STRUCTURES areas. The state must obtain permits from the U.S. Army Corps of Engineers, which operates in conjunction with other federal and state agencies. Permits authorizing the use of aids to navigation must be obtained from the U.S. Coast Guard. Permit for coastal zone activities must be obtained from the Louisiana Department of Natural Resources. Artificial reef plans approved by the Louisiana Senate and House Natural Resources Committees are implemented by the Louisiana Department of Wildlife and Fisheries after general implementation requirements are fulfilled. Artificial reef complexes are supervised by the Louisiana Department of Wildlife and Fisheries, the Louisiana Geological Survey, and the Center for Wetland Resources at Louisiana State University. The Special Artificial Reef Site (SARS) program was designed to provide the Artificial Reef Planning Councils of Louisiana's Artificial Reef Program the flexibility to include in the reef program selected artificial reefs that have arisen outside of designated planning areas. SARS must meet general criteria, including the following: The SARS site must have historical or biological significance; for example, the site provides good fishery habitat. The site is a cooperative effort between the Louisiana Artificial Reef Program and other state, federal, or private groups. The site contains unremovable shipwrecks or derelicts that are environmentally beneficial. The site is part of an experimental project undertaken by the Louisiana Artificial Reef Program. Establishing a SARS requires drafting a SARS proposal depicting relevant site information for submission to the Louisiana Artificial Reef Council. Necessary permits for accepted proposals are obtained by Artificial Reef Coordinators, and are signed with Deeds of Donations by the secretary of wildlife and fisheries. Texas Artificial Reef Fishery Management Plan The Texas Artificial Reef Act of 1989 promoted the enhancement of artificial reef potential in state and federal waters adjacent to Texas. The Texas Artificial Reef Plan was developed in accordance with the Texas Parks and Wildlife Department code and is a product of a process designed to maximize input of various interest groups who comprise the Texas Artificial Reef Advisory Committee. The state 's Artificial Reef Act of 1989 provided guidance for planning and developing cost-effective and environmentally sound artificial reefs. All Texas artificial reefs are sited, constructed, maintained, monitored, and managed according to specified criteria listed in the plan. Several recommendations developed in the Artificial Reef Plan have been made to guide the department's artificial reef program.