Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XT64

# AGENCY:

National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce.

# ACTION:

Notice of intent to prepare a supplemental environmental impact statement; request for comments.

# SUMMARY:

                        NOAA, as a member of the                         *Exxon Valdez*                         Oil Spill Trustee Council (Council), announces the intent of the Council to prepare a supplement to the existing environmental impact statement (EIS) on the Council's restoration efforts, in accordance with the National Environmental Policy Act of 1969, (NEPA). This supplemental EIS (SEIS) is necessary to respond to significant new circumstances bearing on the Council's restoration efforts as assessed in the original EIS. Specifically, as the restoration funds remaining from the Exxon Valdez settlement diminish, the Council seeks a more discrete and efficient funding mechanism by which to direct the remaining funds. The SEIS would assess the environmental impacts of the Council's proposal to narrow and refine the scope of the Council's restoration efforts to five defined restoration categories: herring; lingering oil; long-term monitoring of marine conditions; harbor protection and marine restoration; and habitat acquisition and protection. Cooperating agencies are the Alaska Departments of Law, Environmental Conservation, and Fish and Game, and the U.S. Forest Service, U.S. Department of Agriculture, Office of the Secretary, U.S. Department of the Interior.                    

# DATES:

                        Written comments on the intent to prepare and the scope of a SEIS will be accepted on or before April 1, 2010. A draft SEIS will be released for public comment by spring 2010. Specific dates and times for future events will be publicized on the EVOSTC website,                         *http://www.evostc.state.ak.us*, when scheduled.                    

# ADDRESSES:

                        Written comments on suggested alternatives and potential impacts should be sent to Laurel Jennings,                         *Exxon Valdez*                         Oil Spill Trustee Council, 441 West 5th Avenue, Suite 500, Anchorage, AK 99501. Emailed comments will be received at                         *dfg.evos.nepacomments@alaska.gov*.                    

# FOR FURTHER INFORMATION CONTACT:

Laurel Jennings (888.654.EVOS).

# SUPPLEMENTARY INFORMATION:

## Background

                    In 1992, the                     *Exxon Valdez*                     Oil Spill Trustee Council was formed by six trustees, three State of Alaska trustees and three federal trustees, to oversee restoration of the natural resources and ecosystem damaged by the 1989 oil spill. The                     *Exxon Valdez*                     Oil Spill Trustee Council was funded by settlement of civil claims brought against Exxon Companies by the State of Alaska and the United States. The Council initiated an extensive public process to begin the work of restoration using these joint trust funds and, in 1994, adopted a Restoration Plan to guide restoration through research and monitoring, habitat protection and general restoration. The Restoration Plan also established a Restoration Reserve recognizing that recovery from the spill would not occur for decades.                

                    As part of this effort, the Council also adopted an official list of resources and services injured by the spill. When the 1994 Plan was drafted, the distinction between the effects of the spill and those of other natural or human-caused stressors on injured resources or services was not clearly understood. Through the hundreds of studies conducted over the last twenty years, the Council has come to recognize that ecosystem restoration is not easily addressed. The interactions between a changing environment and the injured resources and services are only beginning to be understood, and, as time passes, the ability to distinguish the effects of the oil from other factors affecting fish and wildlife populations becomes more difficult. These complexities and the difficulties in measuring the continuing impacts from the spill result in some inherent                           ( print page 3707)                        uncertainty in defining the status of a resource or service through a specific list.                

The 1994 Plan also outlined an ecosystem approach to restoration, a more integrated view that has become increasingly recognized as essential. Even before the Plan was final, the Council began efforts to better understand the marine ecosystem. This approach has provided and continues to provide an abundance of information on fish, marine birds, and mammals.

## Meetings Times and Dates

                    Preliminary public scoping meetings are scheduled as follows; updates or changes to the meeting times or dates, due to weather or other factors, can be found at                     *http://www.evostc.state.ak.us*:                

1. February 16, 2010 from 6:00 p.m. to 8:00 p.m. at the Alaska Islands and Oceans Visitor Center, 95 Sterling Highway, Homer, AK 99603.

2. February 17, 2010 from 6:00 p.m. to 8:00 p.m. at Dena´ina Civic & Convention Center, 600 West Seventh Avenue, Anchorage, AK 99501.

3. February 18, 2010 from 7:00 p.m. to 9:00 p.m. at the Cordova Public Library, 622 First Street, Cordova, AK 99574.

4. March 16, 2010 from 6:00 p.m. to 8:00 p.m. at the K.M. Rae Building, 125 Third Avenue, Seward, AK 99664.

5. March 17, 2010 from 6:00 p.m. to 8:00 p.m. at the Valdez City Council Chambers, 206 Pioneer Drive, Valdez, AK 99686.

6. March 18, 2010 from 6:00 p.m. to 8:00 p.m. at the Kodiak Refuge Visitor Center, 402 Center Street, Kodiak AK 99615.

## Proposed Action

Of the approximately $780 million of joint trust funds initially funding the Council, over $180 million has been used for research, monitoring and general restoration and over $375 million has funded habitat protection. Council annual program development, implementation and administration have cost over $45 million dollars. Approximately $76 million remains available for research, monitoring and general restoration and $24 million remains available for habitat acquisition and protection. Recognizing that funding for future restoration is limited and that it is becoming increasingly difficult to distinguish between spill impacts and other effects in measuring recovery, the Council is considering an organized and strategic transition to a modest program which would focus the remaining funds on a few specific programs and habitat protection.

Long-term management of species and resources initially injured by the spill lies with the agencies and entities that have the mandate and resources to pursue these long-term goals. To support natural restoration and to enable management consistent with this long-term restoration, the Council has increasingly directed funds toward research that provides information that is critical to monitor and support the healthy functioning of the spill ecosystem.

Building on its past efforts, the Council has identified five areas of focus for its remaining work: (1) herring; (2) lingering oil; (3) long-term monitoring of marine conditions; (4) harbor protection and marine restoration; and (5) habitat acquisition and protection. The following paragraphs elaborate on the details of each of these proposed areas of focus.

### 1. Herring

                    The Council has classified the Prince William Sound (PWS) population of Pacific herring (                    *Clupea pallasi*) as a resource that has not recovered from the effects of the 1989 oil spill. The PWS herring population was increasing prior to 1989 with record harvests reported just before the spill. The 1989 year class was one of the smallest cohorts of spawning adults recorded and by 1993 the fishery had collapsed with only 25% of the expected adults returning to spawn. The PWS fishery was closed from 1993 to 1996, but reopened in 1997 and 1998, based on an increasing population. Numbers again declined in 1999, and the fishery remains closed today. The 1993 collapse can be explained by several competing hypothesis; however, data uncertainty makes it unlikely that the reasons will be known.                

The Council recognizes the uncertainty with regard to the role of the 1989 spill and the current depressed state of the PWS herring population. However, herring are considered a keystone species in the marine ecosystem and play a vital role in the food chain of many injured species. Thus, rebuilding the herring population has the potential to support the restoration of these injured species. In addition, supporting a healthy herring population may compensate for some of the losses in fishing opportunities that resulted from the spill and its damage to salmon and species other than herring. In April 2006, prompted by public comments about the continuing impacts to communities and commercial fishermen from herring losses, the Council convened scientists and researchers, commercial and subsistence fishermen, and natural resource managers for a herring workshop. One of the most important outcomes of the workshop was the consensus that a long-term strategic herring restoration program was needed if viable herring recovery activities were to be implemented. From 2006 to 2008, Council representatives met with natural resource managers, commercial fishers, scientists, the Public Advisory Committee (PAC) and Alaska Native residents of spill-area communities to gain sufficient input to draft a cost-efficient, scientifically credible, and coordinated program. This effort produced the first draft of the Integrated Herring Restoration Program (IHRP) in December 2008.

The goal of the IHRP is to determine what, if anything, can be done to successfully restore PWS herring; to determine what steps can be taken to examine the reasons for the continued decline of herring in the Sound; to identify and evaluate potential recovery options; and to recommend a course of action for restoration. The document is currently being reviewed and updated with new information and will serve as a general road map for the Council's herring-related funding decisions. The Council has proposed to fund $20 million for research in this area over a twenty-year period.

### 2. Lingering Oil

One of the most surprising revelations from two decades of research and restoration efforts since the 1989 spill is the persistence of subsurface oil in a relatively un-weathered state. This oil, estimated to be around 97.2 metric tons (or 23,000 gallons), is contained in discontinuous patches across beaches that were initially impacted by the spill. The patches cannot be visually identified on the beach surface, but their presence may be a source for continued exposure to oil of sea otters and birds that seek food in sediments where the oil persists and remains a concern and a perception of contamination by subsistence users. The survey work completed to date indicates that the oil is decreasing at a rate of zero to four percent per year, with only a five percent chance that the rate is as high as four percent. As a result, it may persist for decades.

                    Passive and subsistence uses were significantly impacted by the spill and this has affected the overall health of the communities in Prince William Sound. The lingering oil has also impacted the public's perception of the spill area as the pristine environment that was present before the spill occurred. This perception has continued to preclude full recovery for some passive and subsistence uses. It may require                           ( print page 3708)                        additional resources to evaluate, monitor, and redress the impact of lingering oil on these uses in the spill-area. An important function of this information gathering would be to pass this information back to the communities and the general public.                

                    In an effort to address the issue of lingering oil, the governments developed a restoration plan under the terms of the Reopener provision in the Consent Decree with Exxon (                    *http://www.evostc.state.ak.us/​facts/​reopener.cfm*). Efforts to date include the development of a spatial probability model to identify beach segments with a high likelihood of persistent oil, and investigations of the reasons for the persistence of oil as a means to consider options that may accelerate the oil degradation. Under the lingering oil initiative, the Council envisions completion of the studies underway to reach a decision point on further efforts for active remediation. Upon receiving additional lingering oil information from these current lingering oil studies and the resolution of the Reopener, the Council will evaluate the need for restoration of related services and thus no prospective funding amount has been proposed.                

### 3. Long-term Monitoring of Marine Conditions

                    In the twenty years since the                     *Exxon Valdez*                     oil spill, it has become apparent that the ocean ecosystem can undergo profound changes and such changes likely preclude a return to pre-spill conditions. The 1994 Restoration Plan (Plan) recognized that recovery from the spill would likely take decades. A Restoration Reserve was created from the Plan in part to provide for long-term observation of injured resources and services and provide for appropriate restoration actions into the future. To further this effort, in 1999 the Council also supported the development of a long-term research and monitoring program.                

Long-term monitoring has two components: monitoring the recovery of resources from the initial injury and monitoring how factors other than oil may inhibit full recovery or adversely impact recovered resources. This second type of monitoring collects data on environmental factors that drive ecosystem-level changes. The information that is produced from such monitoring may be used to manage individual injured species and resources. However, such data is increasingly valuable in illuminating the larger ecosystem shifts that impact and influence a broad variety of species and resources injured by the spill.

By monitoring these changes, agencies and interested parties may be able to adjust their own activities and management strategies to adapt to what may lie ahead and to further support injured resources in these quickly-shifting marine ecosystems. The Council has a history of supporting oceanographic monitoring by helping to establish and fund long-term data collections. In this initiative, the Council envisions seeking partnerships with scientific entities or consortiums able to maintain those collections and that can demonstrate an ability to leverage this support and develop science-based products to inform the public of changes in the environment and the impacts of these changes on injured resources and services. The Council proposes to fund this effort with approximately $25 million, to be spent over a twenty-year period.

### 4. Harbor Protection and Marine Restoration

#### a. Storm Water, Wastewater, and Harbor Projects

Many coastal communities in the spill area have a limited ability to collect and properly dispose of waste, such as oily bilge water, used engine oil, paints, solvents, and lead-acid batteries. Improper disposal of these wastes in landfills adversely affects the quality of nearby marine waters through runoff and leaching. In some cases, these wastes are discharged directly into marine waters. Chronic marine pollution stresses fish and wildlife resources, possibly delaying recovery of resources injured by the oil spill. For example, with regard to the worldwide mortality of seabirds, the effects of chronic marine pollution are believed to be at least as important as those of large-scale spills.

The Council has approved the funding of several projects to prepare waste management plans and has contributed to their implementation. These projects resulted in the acquisition of waste oil management equipment and the construction of environmental operating stations for the drop-off of used oil, household hazardous waste and recyclable solid waste in Cordova, Valdez, Chenega Bay, Tatitlek and Whittier, Kodiak and lower Cook Inlet. The Council seeks to further reduce pollution in the marine environment to contribute to the recovery of injured natural resources or services and is considering funding this effort with $10 million.

#### b. Marine Debris Removal

Marine debris is an issue in the marine and near-shore environment in Alaska, where it is likely that thousands of tons of marine debris exist within three nautical miles of the Alaska coastline. Marine fish and wildlife become entangled in and ingest debris from foreign and domestic sources that may be a day or decades old and that range from small plastic items to very large fishing nets. Approximately 175 metric tons of debris was collected from Alaska coasts by citizen cleanup projects in 2007. Marine debris removal projects can result in an immediate improvement to the coastal habitat.

Coastal communities are effective in marine debris cleanups due to their intimate knowledge of the locations of debris accumulation. In addition, when communities participate in marine debris cleanups, they often alter the common practices that led to marine debris as their awareness of the effects of the debris on their coastline and the fisheries upon which they depend increases. Marine debris removal reduces marine pollution affecting injured resources and services and thus further supports natural restoration. The Council proposes to fund marine debris removal with approximately $3 million.

#### c. Response, Damage Assessment and Restoration Implications 

Damage to natural resources occurs not only with an initial oil spill, but additional damage can also be caused by spill response efforts. Damage assessment from the 1989 spill has yielded information that can assist in mitigating damage from spill response activities in future spills. Skilled damage assessment also quantifies the extent of injury and allows for the accurate monitoring and measurement of restoration after a spill. Organizing, preserving, and passing on such information will help responders and those conducting future damage assessments. These efforts ensure that restoration efforts are truly effective. Outreach efforts could include a conference or series of papers sharing information to be used by future responders, including natural resource assessment, the long-term costs of high-pressure washing, use of dispersants in the near-shore, sub-arctic environment, and the effects of potential burning scenarios. The Council proposes to fund this effort with $1 million.

### 5. Habitat Acquisition and Protection

                    The protection of habitat is an important component of the Exxon Valdez oil spill restoration program. The                           ( print page 3709)                        acquisition of private lands or partial interests in private lands promotes the natural recovery of spill-injured resources and associated services by removing the threat posed by additional development impacts. The program is implemented by state and federal resource agencies, often in partnership with non-governmental organizations. The habitat program has protected approximately 650,000 acres of valuable habitat through a variety of purchases of various property rights, ranging from fee simple acquisition to conservation and timber easements. The goals of the habitat protection program remain viable. Resource and land management agencies, such as the Alaska Department of Natural Resources, Alaska Department of Fish and Game, U.S. Fish and Wildlife Service, National Park Service and U.S. Forest Service, continue to receive parcel nominations for Council consideration. Approximately $24 million remains within the habitat subaccount for future habitat protection efforts. The Council is considering alternatives for allocation of these funds. For example, half of the funds remaining may be allocated to the purchase of large parcels within a period of two to three years, and the remaining half to a program spanning a 12-year period focused on the protection of small parcels less than 1,000 acres or $1 million in price. The Council proposes to utilize the approximately $24 million remaining to continue the habitat program. A variety of administrative options, funding allocations, time frames, and management strategies will be considered.                

## Public Involvement

Scoping is an early and open process for determining the scope of issues to be addressed in a SEIS and for identifying if there are significant environmental effects or issues related to the proposed action. A principal objective of the scoping and public involvement process is to identify a range of reasonable alternatives that will delineate critical issues and provide a clear basis for distinguishing among those alternatives and selecting a preferred alternative. Through this Notice, the Council notifies the public that a NEPA analysis and decision-making process has been initiated so that interested or affected people may participate and contribute to the final decision.

                    Through this scoping process, the Council is seeking input and feedback on the areas, issues and projects proposed above, as well as possible alternatives to these proposals. The Council seeks public involvement in the development of the SEIS and encourages members of the public to submit comments in writing at the address shown above (see                     **ADDRESSES**                    ). Written comments should be as specific as possible to be the most helpful. Written comments received during the scoping process, including the names and addresses of those submitting them, will be considered part of the public record on this proposal and will be available for public inspection.                

                    The Council also invites the public to participate in the scoping meetings shown above (see                     **DATES**                    ). When the lead federal agency considers a change to a proposed action analyzed in an environmental impact statement (EIS), or new information relevant to the action becomes available, the federal agency must determine whether a supplement to the EIS (also referred to as a “supplemental EIS”) or a new EIS is appropriate. In this instance, NOAA, as the lead agency, has determined that a SEIS is appropriate and will be prepared under the authority and in accordance with the requirements of NEPA, Council on Environmental Quality Regulations (40 CFR parts 1500-1508), other applicable federal laws and regulations, and NOAA's established policies and procedures for compliance with those regulations. A SEIS must consider all reasonable alternatives, including the preferred action and the no action alternative. Even the most straightforward actions may have alternatives, often considered and rejected in early stages of project development that should be discussed. Opportunities for public comment are provided through public review and comment on documents contained in the Administrative Record as well as on the Public Review Document, Draft and Final Environmental Impact Statement when prepared.                

                    In compliance with 15 CFR 990.45, the Council will prepare an Administrative Record (Record). The Record will include documents that the Council relied upon during the development of the SEIS. After preparation, the Record will be on file at the                     *Exxon Valdez*                     Oil Spill Trustee Council office in Anchorage, AK and duplicate copies will be maintained at the following website:                     *http://www.evostc.state.ak.us.*

Dated: January 15, 2010.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

[FR Doc. 2010-1201 Filed 1-21-10; 8:45 am]

BILLING CODE 3510-12-S