HOPE Helping Our Peninsula's Environment
Box 1495, Carmel, CA 93921                     Info(at)1hope.org 
831/624-6500                                                                   www.1hope.org

Robert Traynor,
Calif. Dept. of Fish and Game

Friday, February 9, 2001

Kelp Regulations DEIR Comments

Table Of Contents:

Introduction

Processes

Facts

Law

Reasoning / Conclusions

__________________

I. Introduction

Kelp D-EIR

Information And Expertise Missing

Quantification Missing

Significant Environmental Impacts In Addition To User-Conflicts

II. Processes

Inadequate Purpose

Internally Inconsistent Purpose

Theme Upside Down

Baseline

III. Facts

Stellar Sea Lion (Eumetopias Jubata) Overlooked

Sea Otters

Whale Habitat

Rockfish Declines

Abalone Impacts Overlooked

White Abalone Highly Endangered

Kelp Biology

Kelp Destruction Is Unstable

Ecosystem

Ecosystem Services

Biomass Loss

Noise Impacts On Listed Species Unrecognized

Distance Offshore Regulation Needed

Depth Restriction Needed

Air Pollution

Misc.

IV. Law

* CEQA Finding Of Significant Impact Required for Range Reduction

* ESA & MMPA Take Are Also Significant Impacts

Biological Opinions Needed

Consultation Required

V. Reasoning

Cumulative Impacts Admitted But Unaddressed

Sewage Cumulative Impact

California Sewage

Chlorine

Mitigation

Mitigations Vs Alternatives

Alternatives Too Limited

No Project Alternative

__________________

I. Introduction:

KELP D-EIR

The 22 pages of citations summarized in this Kelp DEIR is generally very good. Although the DEIR missed mentioning the officially Endangered and protected Stellar Sea Lion and Abalone and the legal requirement to make two specific findings of significant impact, this is the first environmental document I've reviewed in a long time where I learned of new environmental impacts (such as fish using the kelp forest as a reference point). All too often, the burden of providing relevant research data and citations is improperly placed on the public. Thank you for your efforts.

But, the alarming, precipitous collapse of animals interdependent upon kelp forests including marine mammals, abalone, rockfish and perhaps other families which is well documented and officially recognized, should be a big red flag. The huge cumulative damage of overfishing, sewage and natural climate variation added to the wholly preventable kelp extraction impacts should make it obvious that it is time to pause and say "Enough" to even more man-made damage until we genuinely begin to permanently reverse the impacts we are causing here.

INFORMATION AND EXPERTISE MISSING

In spite of extensive citations some expert rationale is missing and needed. Vital consultations with federal experts on the ESA & MMPA listed species involved will greatly improve the scientific information needed and would provide meaning to the data to allow making the best decision here. Without those Biological Opinions this document is missing significant relevant information and reasoning which prevent making a reasonable decision.

QUANTIFICATION MISSING

Except for the few paragraphs on noise (which we do appreciate) there is little relevant quantification of potentially significant environmental impacts.

Please disclose all quantitative criteria the DEIR uses to determine the threshold for a potentially significant environmental impact (i.e. baseline, thresholds of significance, percent of resource remaining).

SIGNIFICANT ENVIRONMENTAL IMPACTS IN ADDITION TO USER-CONFLICTS

This controversy is not simply a user-conflict (p 6-1).

Our Kelp Forest Ecotone harbors the greatest density of biomass, the most productive communities and the greatest biodiversity in the North Pacific. There is widespread public concern about any removal of large areas of vital and critical habitat - habitat for a host of threatened, endangered legally protected and keystone species (e.g. the beloved Southern Sea Otter, Stellar Sea Lion and gray whale calves) and other sea life. It is our opinion almost all Californians prefer to have the kelp forest wholly protected rather than harmed and lost by selling it to industrial extractors.

II. Processes:

INADEQUATE PURPOSE

The DEIR purpose (p 2-4) related to protecting natural phenomena is only stated in the negative - it does not state positively or clearly what the goal is. Without a clear purpose no one can determine whether the purpose is ever met.

By doing so it implies that kelp cutting is a natural event when is clearly is not. This may be because the theme is backwards as described below.

* Please rewrite the project purpose to state positively what is proposed related to protecting natural phenomena.

INTERNALLY INCONSISTENT PURPOSE

"One-fourth ... shall remain unleased..." yet that fourth is available for new commercial use. If that fourth is used - it no longer remains open.

One can't have both - a fourth either remains open or is used.

Please recraft this so that it is internally consistent.

THEME UPSIDE DOWN

The DEIR often analyzes only what is restricted - not on what is allowed. The far bigger picture is what kelp extraction is allowed under these proposed regulations.

The "No action" alternative uses this novel view and implies it is the same as a no-project Alternative. This is not correct.

BASELINE

The baseline also improperly attempts to sell this concept. Since the Agency has the authority to prevent all kelp extraction, the baseline is not continued kelp extraction, it is zero kelp extraction.

All potentially significant environmental impacts of regulations must be compared to zero kelp extraction. The impacts SHOULD NOT, as the DEIR attempts, be compared to continued kelp extraction.

III. Facts

STELLAR SEA LION (EUMETOPIAS JUBATA) OVERLOOKED

This species is known to inhabit Monterey Bay, to use Kelp forests and to frequent Monterey Coast Guard pier. It is an indicator species. The DEIR did not mention this Endangered Species. This species was listed as Threatened under FESA in 1990, and given heightened protection as "Endangered" FESA status in 1996. Its population has dropped from 140,000 in 1960 to some 16,000 in 1998. They eat bottom dwelling fish such as pollock.

SEA OTTERS

Sea Otters use Kelp beds (Giant Kelp - Macrocystis pyrifera & Bull kelp - Nereocystis leutkeana) as refuge from predators including white sharks and winter storms, to define territory and as nursery areas for females with pups. Sea otters feed on various invertebrates that exist in kelp forests (Foster and Schiel, 1985).

The Southern Sea Otter (enhydra lutris nereis) was federally protected under the Endangered Species Act as a Federally listed Threatened species in 1977. It is also protected under the Marine Mammal Protection Act. The Marine Mammal Protection Act 1972, USC 16 establishes a moratorium on the taking ("harass, hunt, capture or kill") and importation of marine mammals and marine mammal products, with exceptions for scientific research, allowable incidental taking, exemptions for subsistence activities by Alaskan natives and hardship exemptions (16 U.S.C. 1371). The MMPA requires all private or public actions that intentionally

take marine mammals to get a permit.

MMPA is administered by US-FWS to protect sea otters.

Monterey County coastal waters contain the largest concentration of the Southern Sea Otter. It lives in nearshore kelp beds out to the 100 meter depth contour and occurs from Ano Nuevo in Santa Cruz County to the north to approximately Pt. Conception in the south. A small number (17 - 25 individuals) were relocated to San Nicholas Island. It is a keystone species (Miller 9 8) that keeps sea urchins from depleting kelp beds.

"As one of the few marine representatives of the order Carnivora, the sea otter evolved to inhabit a narrow ecological zone adapting to the near shore community and preferring a rocky shoreline with kelp beds." FWS, Draft Southern Sea Otter Recovery Plan June 1996

"Otters feed in both rocky and soft sediment nearshore areas, as well as in the kelp understory and canopy." US-Fish & Wildlife Service, "The Southern Sea Otter. Its Biology, Life Habits and History"

"Otters live in waters with temperatures between 35 and 60 degrees F." Ibid.

Removal of kelp canopy can change the water temperature by changing sunlight reaching the mid and bottom seawater column, decreased insulation that kelp provides, and allowing increased surface disturbance by wind.

WHALE HABITAT

Migrating gray whales, especially the young, stick close to kelp forests for protection. Gray Whales have been observed entering kelp forests to escape predation from killer whales (Orcinus orca, Baldridge, 1972) and also to feed on invertebrates such as midwater crustacean swarms (Nerini, 1984)."

ROCKFISH DECLINES

Young fish, such as rockfish and surf perch, graze on plankton found in the top several feet of a kelp canopy. The Monterey Bay rockfish populations experienced a significant decline in the 1990's.

ABALONE IMPACTS OVERLOOKED

Abalone, Sea Urchins, Sea Otters and Kelp forests are all closely interdependent. Their complex relationships are poorly understood. White, Black, Pink and Green Abalone have all experienced catastrophic declines in recent years resulting in a complete ban on commercial take. The decline of abalone correlates with kelp harvesting. These parallel declines may be a coincidence, but it is possible the extraction of kelp forests plays a significant role in the cause of Abalone declines.

WHITE ABALONE HIGHLY ENDANGERED

DF&G Banned harvest of White Abalone in 1995. Calif. Fish & Game Code 5521. "A moratorium is imposed on the taking, possessing, or landing of abalone (genus Haliotis) for commercial or recreational purposes in ocean waters of the state south of a line drawn due west magnetic from the center of the mouth of the San Francisco Bay, including all islands offshore the mainland of California, including, but not limited to, the Farallon Islands and the Southern California Channel Islands. It is unlawful to take, possess, or land abalone for commercial or recreational purposes in those ocean waters while the moratorium is in effect."

The White abalone (Haliotis soreni) is an endangered species. This abalone has declined by 99.9% in the last thirty years. The White abalone occurs from near Point Conception (near Santa Barbara) to Punta Eugenia, Baja California, Mexico. It lives at a depth of 80-300 feet, feeds on marine algae and can live up to 40 years. Within the lifetime of single abalone, the entire species has declined from between two to four million individuals, to between 600 and 1,600 individuals. In the last 33 three years, it has not successfully reproduced on a broad scale. Though other factors may be preventing reproduction, over fishing is rapidly driving it to extinction. The Southwest Center for Biological Diversity filed a petition on 4-28-99 to list the White abalone (Haliotis soreni) as an endangered species.

Selling for $20 to $22 per pound in 1999 White Abalone has attracted poachers who have been caught at Point Pinos at night. (Herald July 25 1999 p A7)

KELP IMPACTS

We do appreciate the DEIR's recognition of impact shifting (p 1-2). But the claim "Cut canopy will be restored from young fronds beneath the surface" (p 4-12) is misleading at best, false at worst. Kelp grows up from the ocean bottom, it does not grow from the top. When cut at or near the surface that frond stops growing. Cut kelp might as well have been cut from the bottom as it essentially kills that 30 to 60 to 100 foot frond.

Do you deny or agree with this?

Page 4-18 2nd paragraph: "mainly from growth of new fronds from below." Does this mean fronds from the same stipe or from others?

Cutting Kelp at the surface can result in kelp tips no closer than four to eight feet below the surface. Kelp is typically commercially cut at low tide and stretched to the surface. When not stretched it leans over due to currents. When adding the currents and high tide the top of the cut kelp can easily be 4 to 8 feet below the surface.

Do you deny or agree with this?

KELP DESTRUCTION IS UNSTABLE

"One common phenomena occurring in areas where surface canopies have been removed is the recruitment of the brown alga Desmarestia ligulata (Foster, 1982a; Reed and Foster, 1984). This species forms a dense subsurface canopy which can inhibit recruitment of other algal species including giant kelp (Dayton et all, 1992)." - Monterey Bay National Marine Sanctuary Kelp Management Plan Jan 14 2000

When kelp forests are removed, sea otters must move to other kelp canopies. When Sea otters move north the area where they eat sea urchins move north. When sea urchins reach a certain population they can turn the ocean bottom into "barren grounds." P 3-29 Barren grounds do not allow kelp to regenerate. Sewage can worsen the impacts on kelp forests by increasing the number of sea urchins. p 3-49

Because of the extremely threatened state of Abalone it seems highly wise and reasonable to restrict extraction of all species which are closely interdependent until threatened and endangered species (e.g. Abalone, Sea Otters, Stellar Sea Lions) are clearly recovering.

KELP ECOSYSTEM

Kelp (Giant Kelp - Macrocystis pyrifera & Bull kelp - Nereocystis leutkeana) forests provide habitat for a large variety of invertebrates, fishes, birds, and mammals which are distributed among the three different regions of the forests; the surface canopies, the midwater and the substrate (Foster and Schiel, 1985).

"Fish diversity and abundance decrease in areas where the kelp canopies have been removed (Bodkin, J. of Exp. Mar. Bio. Ecology 1988). Variations in fish abundance may have significant impacts on other communities. For example juvenile rockfishes associated with kelp forests in Monterey bay can reduce the amount of barnacle larvae reaching the intertidal to 2% of the level found in the absence of fish (Gaines and Roughgarden, 1998)." - Monterey Bay National Marine Sanctuary Kelp Management Plan Jan 14 2000

"The floating canopy is thick enough to provide footing for birds as large as the great blue heron. The forests provide a nursery, feeding grounds, and shelter, so it is not surprising that large numbers and a great diversity of invertebrates and fish are found in association with the forests." A number of mammals (California Sea Lion, gray whale, harbor seal, and sea otter frequent the forests. At least 13 birds species use the Giant Kelp as feeding ground (pigeon, guillemot, brown pelican, pelagic cormorant, snowy egret, great blue heron, western grebe, western gull, eared grebe, Brandt's cormorant, surf scooter, common loon, common murre, elegant tern). - California an Environmental Atlas and Guide, Bern Kreissman, 1991 p 68

Page 4-19 says "...plants had been lost during the winter in the experimentally harvested area but not in the unharvested control."

Didn't this kelp cutting impair a Giant kelp bed?

Page 4-18 says "...cut fronds grew very little after harvesting..."

Didn't this kelp cutting impair a Giant kelp bed? If not please explain what criteria you use to determine a Giant kelp bed is impaired?

Page 4-21 says "...any activity that removes the pnuematocyst and blades results in the death of that [Bull Kelp] plant as well as loss of regenerative and reproductive material."

Doesn't this mean kelp cutting impairs a Bull kelp bed? If not please explain what criteria you use to determine a Bull kelp bed is impaired?

BIOMASS LOSS

A Kelp forest, like every other ecosystem, exists in a dynamic equilibrium. It is not a wholly closed system, but its biomass is wholly recycled and used by biota living in and near it.

This action would allow a huge permanent and irrevocable statewide loss of Kelp Biomass. It is a colossal loss of biomass in a fragile ecotone. There is abundantly officially-recognized evidence of the ecological collapse of the kelp-ecosystem. That includes alarming, precipitous declines of keystone and indicator animals dependent upon kelp forests including sea otters, abalone, and rockfish.

Adding the wholly preventable kelp extraction impacts to the huge cumulative damage of overfishing, sewage and natural climate variation is an insult. It should be overwhelming obvious that it is time to say "Enough" to additional, preventable man-made damage until we genuinely begin to permanently reverse the impacts we are causing here.

Please quantify the yearly biomass loss expected with these new regulations.

Please prepare real mitigation for the loss of biomass.

Please prepare a regulation trigger at that level of biomass loss to stop all further harvesting that year.

There is clear evidence that multiple kelp cutting extractions per year can "cause the loss of 'plants' and reduced production of biomass."

Please create a regulation to prohibit multiple kelp cutting extractions per year. A model would be the British Columbia regulation which only allows extraction of 20 percent of the standing stock per year (with other conditions). (p 4-22)

KELP FOREST FRAGMENTATION AND EDGE EFFECTS

Kelp Extraction is admittedly designed to cause kelp forest fragmentation and increase edge effect impacts.

"Conservation Biology's central tenets are not hard to grasp. For a natural habitat to be viable (and for a conservation strategy to succeed) there is a handful of general rules: bigger is better; a single large habitat is usually better than several small, isolated ones; large native carnivores are better than none; intact habitat is preferable to artificially disturbed habitat; and connected habitats are usually better than fragmented ones." Sierra Magazine Sept./Oct 1995 p 97

"Edge habitats have been well-demonstrated to differ from core habitats in several ecological systems." US-FWS Marbled Murrelet 1997

EDGE EFFECTS & WEATHER

"Edge effect" describes how kelp at a newly cut edge of a forest are exposed to much higher wave surges - which can stress them prematurely, increase the number pulled out by storms, and cause the loss of marine wildlife and biodiversity necessary to sustain a healthy kelp forest.

Kelp forests near induced edges, for example, may have a higher density but lower diversity of fish than the interior. "A number of studies in land forests have shown increased predation of songbird and quail eggs near forest edges." - Mitch Lansky "Beyond the Beauty Strip"

NEW LINEAR EDGES

Please identify and map the lengths of each existing and potential edge of kelp forest and analyze the impacts of kelp forest fragmentation and edge effects.

Please identify and map the length of the new edges created for each numbered kelp bed after the proposed extraction that were previously unaffected by edge.

Please describe the health of the forest when it is reduced to "Islands" (where there may no longer be any true forest interior).

If Kelp Extraction is allowed, a regulation needs to minimise fragmentation and edge effect impacts.

NOISE IMPACTS ON LISTED SPECIES UNRECOGNIZED

Thank you for providing atmospheric noise levels for kelp extraction equipment and the noise significance threshold of 65 dBA.

We recognize that acoustics, both atmospheric and underwater, are complex and require careful recognition of references. In light of this the following noise impacts need to be further analyzed because -

1. Noise above the ocean surface can be confined in a reflective layer (like a light tube) and consequently travel many miles without appreciable reduction. The DEIR recognizes noise variance with atmospheric conditions (4-14) - but only when it enhances noise reduction. It fails to recognize "certain atmospheric" conditions which increase noise impacts.

2. Noise levels underwater are louder than air noise levels at the same distance from a source. Underwater spreading loss and attenuation losses are much lower than in air. Compared to noise above the surface, underwater noise travels about six times faster (1,470 m/s vs. 340 m/s at typical California temperatures) and travel much farther before reducing to insignificant levels (noise is substantially louder at greater distances underwater).

As an example Oil Tankers often generate in excess of 200 dBA underwater (ATOC FEIS 1996), yet your table only recognizes a tiny fraction of their noise impact by limiting its analysis to the atmospheric noise of a "Tanker" at 80 dBA.

Please measure actual underwater noise of the kelp extraction vessels at 15 meters, 100 meters and at 1000 meters to determine empirical sound pressure diminishment, if detectable.

3. Above and below surface noise impacts on listed species.

Noise Impacts on Wildlife

Kelp cutting boats admittedly disturb Sea Otters (p 4-9).

Please describe, and measure in meters how far sea otters move from their locations in kelp before the kelp extraction vessels arrive.

The noise from boat engines and mechanical kelp extraction equipment can disturb Sea Otters -

"Effects [of noise] on animals have not been studied extensively. These [effects] are analogous to those in humans. There is auditory loss which deprives the animal of signals of danger or the presence of prey. Animals depend on hearing in territorial stakeouts, courtship, mating. Noise which masks natural sounds can be detrimental to survival. Impulse noises produce startle, violent escape efforts, and panic. Noise around construction work, factories, and airports disrupt habitats. Such responses have caused injuries to domestic cattle and horses in stalls. Animals migrate from such conditions when an alternate area can be found." (Environmental Protection, Emil Chanlett 1979), citing "Effect of Noise on Wildlife and other Animals," EPA-NTID 300.5, J.Fletcher, 1971 a. The underwater noise will exceed table 4.1 baseline values (i.e. 78, 76 dBA at 50 feet).

b. The underwater noise at distances farther than 50 feet will remain higher than in air.

c. The underwater noise will remain significantly higher than the 65 dBA threshold at "sensitive locations".

Please analyze the impacts of noise on listed species.

We expect that any objective analysis will find a potentially significant impact of noise on the listed species.

Page 4-14 "impacts of the proposed project 'on' noise levels,..." The word "On" is incorrect and we hope it is a typographical error only. The impacts are "Of" or "from" the proposed project's noise levels "ON" recreation...

DISTANCE OFFSHORE REGULATION NEEDED

The noise analysis does not recognize any kelp extraction closer to shore than 2,600 feet. However, there is no condition or regulation to enforce this. Thus it would be perfectly legal to extract kelp up to the shoreline.

Please create a regulation to prohibit use of kelp extraction vessels closer to shore than 2640 feet. Otherwise the DEIR noise analysis needs to be revised to include noise impacts closer than 2640 feet from shore.

DEPTH RESTRICTION NEEDED

The DEIR claims Kelp extractors do not operate in waters shallower than 30 feet. p 4-11 However, there is no condition or regulation to enforce this. Thus it would be perfectly legal to extract kelp up to the shoreline.

Please describe how close to shore 31 foot deep kelp beds can be. For example at Lover's Point in Pacific Grove kelp beds deeper than 30 feet grow within a stone's throw of the rocky point.

Please create a regulation prohibiting use of kelp extraction in water depths of less than 30 feet.

AIR POLLUTION

We appreciate the Diesel and Gasoline emission tables. No significance thresholds for air pollution are given. Please do so for each air pollutant.

Table 4-2, 3 and 4 are not meaningful because of the bizarre use of units of measure. Thousandths of a ton is clearly not a common unit of measure and is difficult to convert without paper. Pounds of Carbon Monoxide is far more meaningful to the average reader as they are familiar with the concept of suicide by a few ounces of CO in an enclosed garage.

Please change Table 4-2,3 & 4 so they are more meaningful. We request you change "Emission rate" to pounds per hour from tons/day.

MISC.

p 4-14 "appreciable" does not make sense. Please use another word.

p 4-18 2nd paragraph: Please replace "affect" with effect"

p 4-18 states "removal of the canopy eliminates it as a source of food,..."

To which species does a "source of food" refer? Fish?

p 4-19 Please define "Haptera" and "hapteral growth" since there is no index or glossary.

While you're at it - please include an index and a glossary.

IV. Law

CEQA REQUIRES FINDING OF SIGNIFICANT IMPACT

CEQA Guideline 15065 "Mandatory Findings of Significance" states -

"A lead agency shall find that a project may have a significant effect on the environment and thereby require an EIR to be prepared for the project where any of the following conditions occur:"

"(a) The project has the potential to ... reduce the number or restrict the range of a an endangered, rare or endangered plant or animal threatened species, ..."

This means that if the range of species is reduced in any amount (one-quarter acre was enough in the controlling case) a finding of significant environmental impact must be made.

The DEIR admits ESA listed Sea Otters, MMPA listed Gray Whales, California Sea Lions, Elephant Seals, and Harbor seals use the kelp forest as habitat. pg 3-43

All whales, sea lions, harbor seals and sea otters are protected under the Marine Mammal Protection Act.

Migrating gray whales, especially the young, stick close to kelp forests for protection. Gray Whales have been observed entering kelp forests to escape predation from killer whales (Orcinus orca, Baldridge, 1972) and also to feed on invertebrates such as midwater crustacean swarms (Nerini, 1984)."

Sea Otters use Kelp beds (Giant Kelp - Macrocystis pyrifera & Bull kelp - Nereocystis leutkeana) as refuge from predators including white sharks and winter storms, to define territory and as nursery areas for females with pups. Sea otters feed on various invertebrates that exist in kelp forests (Foster and Schiel, 1985).

We conclude that the widepread removal of tens of square miles of kelp habitat for these listed species is a legally mandated significant impact.

Because of these mandatory significant impacts, the DEIR must analyze mitigations and alternatives.

* Please make a finding of significant impact for the listed species habitat and range loss, re-write the DEIR, prepare alternatives and mitigations and recirculate it as a revised DEIR.

ESA & MMPA TAKE ARE SIGNIFICANT IMPACTS

The presence of Kelp cutting boats admittedly disturbs Sea Otters (p 4-9 and 6-2 "less disruption of sea otters in occupied beds"). Harassment, ESA "take" of a listed species, includes influencing its behavior by human presence. Both the ESA and MMPA forbid harassment of listed species. This is take of ESA & MMPA listed species. The noise from boat engines and mechanical equipment also disturbs Sea Otters, as does the removal of kelp which serves as their protection from predators including sharks. Any harassment of an ESA listed species is "take", a violation of Section 9 of the U.S. Endangered Species Act.

Activities authorized by this project which violate a federal environmental law are significant environmental impacts.

Since the Dept is also charged with enforcing Federal ESA, it seems perfectly appropriate to have all California Department of Fish and Game regulations prohibit any activity which could result in take of a listed species.

Please re-write the DEIR to recognize this significant environmental impact.

Please re-write the regulations to avoid this significant environmental impact.

Because of these significant impacts, the DEIR must analyze mitigations and alternatives.

BIOLOGICAL OPINIONS NEEDED

Federal experts are available and required to comment on this document which has federal involvement. We do not understand why there is no Consultation or Biological Opinion.

Is California Department of Fish and Game legally prohibited from having US-Fish & Wildlife Service or US-National Marine Fisheries Service consult on this?

* Please obtain a Biological Opinion on this project's impacts on the potential take under the ESA and MMPA of Southern Sea Otter (enhydra lutris nereis).

* Please obtain a Biological Opinion on this project's impacts on the potential take under the ESA and MMPA of the Stellar Sea Lion (Eumetopias jubata).

The DEIR laments not having a way to measure a precautionary approach (p 6-2). The Dept., also charged with enforcing Federal ESA, can create regulations which use all measures necessary to avoid potential take as one threshold to a precautionary approach and which is minimally consistent with federal ESA law.

CONSULTATION REQUIRED

National Marine Sanctuaries Act requires Federal Lead agency to consult with Dept. of Commerce on any activities "that are likely to destroy, cause the loss of or injure any sanctuary resource." (16 USC Sec 1434 (d)) We believe that NOAA is this project's federal lead agency. But whether it is or not it is CDF&G should initiate consultation.

V. Reasoning

CUMULATIVE IMPACTS ADMITTED BUT UNADDRESSED

The document oddly claims it "fully discloses potential cumulative impacts". This is admittedly false. There is substantial evidence that the Kelp forest ecosystem is potentially near collapse. But alarming, precipitous declines in marine mammals, abalone, rockfish and perhaps other families should be a big red flag. The huge cumulative damage of overfishing, sewage and natural climate variation added to kelp extraction impacts should make it obvious that it is time to say - Enough.

The DEIR admits "The numerical relationship of species in some kelp beds has changed due to [human] removal of dominant kelp inhabitants by various sources." p 2-4

This admits there are cumulative significant environmental impacts on kelp inhabiting species. But instead of analyzing this impact as a cumulative impact it is dismissed because, it claims, kelp destruction plays a "minor" role.

Even if kelp destruction plays a minor role in impacts on kelp dependent or inhabiting species kelp extraction contributes to this serious cumulative impact and must legally be analyzed in that context.

ECOSYSTEM SERVICES

Seagrass/algae beds provide approx. $19,000 in Ecosystem services per hectare per year. -"The value of the worlds ecosystem services and natural capital" by Costanza et all, Nature 15 May 1997 pg 256. Those services include: Species protection (think of what it costs to keep an endangered animal alive in a zoo, compared to a native habitat), storm protection, and other aspects of habitat response to environmental variability mainly controlled by vegetation structure, prevention of loss by wind, or other removal processes, nutrient cycling, waste treatment, pollution control, detoxification, atmospheric gas regulation, climate regulation, pollination, dynamic regulation of populations, reduction of herbivory by top predators, habitat for resident and transient populations, food, fuel and fodder production; medicine products, genes for disease resistance, ornamental species, eco-tourism, sport fishing, and other outdoor activities, aesthetic, artistic, educational, spiritual and scientific values.

How many total square miles of kelp are there in California?

How many square miles of kelp could be cut by this project?

(Please count the square miles of each cut separately.)

* Please list and quantify the loss of ecosystem services due to this project.

Please explain and quantify how kelp cutting is in the public interest.

Please obtain, review and incorporate facts from "The Ecology of Giant Kelp Forests in California: A Community Profile. Slidell, Louisiana: US-Fish & Wildlife Service, 1985, Fisher, Michael S. and Scheil, David R.

SEWAGE CUMULATIVE IMPACT

"A variety of influences can adversely affect the great kelp, but sewage pollution is a specific peril, as was demonstrated by the loss of a large forest off the Palos Verdes Peninsula in Los Angeles County and disappearances off several other sites in southern California in the 1950s." California an Environmental Atlas and Guide, Bern Kreissman, 1991 p 68

CALIFORNIA SEWAGE

"In 1998, beaches statewide were closed for a combined total of 3,273 days, compared to 745 days in 1991, according to the most recent data available from the Natural Resources Defense Council. Sewage spills and urban runoff caused the majority of the closures." AP May 28, 2000

PACIFIC GROVE

The Pacific Grove sewer system spilled some 70,000 gallons of sewage directly into the Monterey Bay National Marine Sanctuary in January 2000. This violated the Clean Water Act, California Water Code and possibly the Endangered Species Act. As a result the Regional Water Quality Control Board fined Pacific Grove a mere $75,000 (out of a possible $700,000) with the warning from staff counsel and board members that "next time there would be a much sterner fine." The four criteria for assessing penalties - History of violations, Ability to Pay, Culpability, Economic Benefit - all were found NOT to justify assessing less than maximum civil liability.

Monterey County Environmental Health Dept. closed Pacific Grove's Lover's Point Beach seven (7) times between January 2000 and May 2000 - four times because of sewage spills and thrice for high bacteria levels. The increased detection of health problems is directly related to increased testing. In Summer 1999 testing began on a weekly basis.

Monterey County Environmental Health Dept. closed Lover's Point Beach in Oct 99 due to an observed 1000 gallon sewage spill. That week, fecal coliform levels exceeded state health standards at San Carlos Beach, Del Monte Beach, Asilomar Beach, Spanish Bay and Stillwater Cove.
 
 
 
 

PEBBLE BEACH

Monterey County Health Dept. closed the Spanish Bay beach "for a few days to a week" beginning on March 22 2000 because of a sewage spill from a broken sewer main. Herald Mar 23 2000

"Contamination shuts Stillwater Cove" headline Herald Apr 6 2000 "High levels of fecal coliform have been found...coming from a storm sewer that drains the famous Pebble Beach Golf Links, said Walter Wong, the county's director of Environmental Health."

CARMEL

"About 1,000 gallons of sewage spilled into Mission Trail Park in Carmel early Thursday evening." From the park it flowed into nearby Mission Trail creek, than about half a mile down to the Carmel River and into the Carmel River Lagoon and the Carmel Bay. "Emergency crews flushed the spill area with bleach and about 1000 gallons of water." Herald, Mar 24, 2000

HUNTINGTON BEACH

Huntington Beach was closed for more than 60 peak summer days due to elevated bacteria levels. AP May 28, 2000

CHLORINE

Chlorine bleach is the standard application after a spill. Chlorine is extremely toxic and reactive itself. Chlorine can harm and kill kelp and its reproductive cells.

* Please analyze the widespread cumulative impacts of sewage and chlorine on kelp forests.

* Please analyze the cumulative environmental impacts of all related activities on kelp as habitat.

* Please analyze the cumulative environmental impacts of all related activities on kelp related species.

MITIGATION

Reading Chapter 5 on Mitigation, felt like it had turned my thought processes into a Klein bottle (a 3 dimensional Mobius strip). It confuses Mitigations and Alternatives. That is certainly excusable because not many people clearly understand the difference. Let me try to explain.

MITIGATIONS VS ALTERNATIVES

Mitigation means doing the same project, but changing how you implement that project.

Alternatives means doing a different project with the same goal.

Example: Three experts tell a woman she should walk across an icy river. Toxicologist says she should wade because the water isn't toxic - just cold. Cardiologist says she can mitigate the cold by wearing a wetsuit. Hydrologist says its OK because other rivers aren't more than 4 feet deep. To their shock - the woman refuses. "Why?" they ask. "Because there's a bridge just upstream."

(adapted from Mary O'Brien's Making Better Environmental Decisions)

The difference between Mitigations and Alternatives is generally that Alternatives involve the entire goal of the project (to get to the other side by walking across a bridge versus wading across a river) while Mitigations deal with subsets of the proposed project (how to minimize freezing if wading the river).

For this project real alternatives would include finding alternative sources for algin and abalone food.

ALTERNATIVES TOO LIMITED

The DEIR is not correct in saying "The only alternatives to regulating the take of kelp would be to allow harvest without restriction or to prohibit consumptive use of these resources." P 5-1

To analyze alternatives properly one must understand the goal.

"Sustainable harvest" and insuring "a supply of kelp" are not necessarily in the public interest or valid goals. Without a valid goal no one can determine whether the goal is ever met.

There seem to be only two different products for which kelp is extracted - algin and abalone food. If alternative sources for products to use in place of algin and abalone food are found there is no need to allow any kelp extraction.

* Please prepare a list and analysis of alternative sources for algin.

* Please prepare a list and analysis of alternative sources for abalone food.

There is no analysis of an alternative which protects the kelp bed habitat used by the ESA listed Southern Sea Otter (enhydra lutris nereis).

There is no analysis of an alternative which avoids take of ESA listed species.

* Please analyze an alternative which avoids take and protects all kelp bed habitat potentially used by the ESA listed species Southern Sea Otter, Gray Whale and the Stellar Sea Lion.

INCLUDE A GENUINE NO-PROJECT ALTERNATIVE

As explained above the DEIR claims that the "No action" alternative is the same as a no-project Alternative. This is not correct.

What is the text of the findings that were made to limit the take of Bull kelp north of Point Arguello?

* Please analyze an alternative which prohibits all extraction of all kelp beds in California. Clearly, this would be the environmentally preferred alternative.

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Please put us on your list of "Interested Parties" so we get all notices of the proposed project (if for no other reason than we ask under authority of CEQA Sections: 21092.(b)(3) and 21092.2)

Incidental Take Permits

Please put us on your list of "Interested Parties" so we get all notices of any Incidental Take Application and copies of all related Biological Reports related in any way to this project or this property.

Please send us a copy of the staff report and the FEIR for this item.

If you do not adopt the issues raised in this letter, please send us a copy of the approval as soon as it is signed.

Please also send us the Notice of Determination or Exemption as soon as it is filed. If it is not filed within 5 days of the signed decision, please notify us of that.

Please let us know immediately if you feel we have not yet exhausted our Administrative remedies or that we do not have standing.

If this is the case please let us know what actions you feel are necessary for us to have standing and to have exhausted our Administrative remedies prior to your final decision.

Please acknowledge receipt of this letter within 5 days.

We look forward to your substantive, written response to the issues raised here within 10 days. If any of this is in the slightest way unclear please contact us ASAP by phone, email or mail.

With all due Respect,

David Dilworth, Acting Secretary and Trustee 831/624-6500