Group seeks clarification in inlet jurisdiction

An Alaska environmental group wants three federal agencies to clarify which is in charge of permitting for industrial activities in Alaska’s Outer Continental Shelf.

Cook Inlet Keeper raised this and other issues earlier this month when it sent e-mailed comments to the regional directors of the U.S. Minerals Management Service (MMS) and the National Oceanic and Atmospheric Administration (NOAA) regarding a seismic survey permit issued to Veritas DGC, the company hired by ConocoPhillips to survey its Cosmopolitan Unit off Anchor Point.

Keeper Director Bob Shavelson said Veritas “apparently relied on various Army Corps’ (of Engineers) stipulations to manage its operations.”

The Corps had issued a nationwide permit pursuant to the federal Clean Water Act, Shavelson said.

“However, Keeper is unaware of any federal law that grants the Corps jurisdiction over these activities,” Shavelson said in his comments.

He then requested clarification why the National Marine Fisheries Service (part of NOAA) and the MMS apparently turned over jurisdiction on the Outer Continental Shelf to the Corps in this permit matter.

Opinions on the issues seemed diverse.

“I would suspect that the Corps does have jurisdiction, said Jon Kurland, assistant regional administrator for habitat conservation with the National Marine Fisheries Service. The only “jurisdiction” his agency would have, he said, would be triggered by the actions of another federal agency, such as the Corps, and that would amount to consultation.

However, Rance Wall, regional supervisor for resource evaluation with MMS, said he was not aware that the Corps had any jurisdiction in federal waters. In any case, he added, “It didn’t have any impact on how we dealt with this (permit).”

Jack Hewitt, project manager with the Corps in Anchorage, said the Corps had jurisdiction in tidal waters. He also said he was not sure just how far out into the inlet that definition actually applied.

“Jurisdiction depends on the activities involved,” Hewitt said. “Seismic testing may or not have Clean Water Act implications.”

If there were a discharge of fill material, he said, the Corps would have jurisdiction under the Clean Water Act and under the Rivers and Harbors Act. If no fill were discharged, then the only jurisdiction would be under Rivers and Harbors.

“I suspect that’s the case in this instance, assuming that if it’s seismic survey activity, there is probably no discharge material,” he said. “There would be no Clean Water Act link, only Rivers and Harbors.”

Veritas’ permit was issued by MMS on July 15. The survey conducted this fall used high-pressure air guns to produce sound waves in the water and measured their reflections off the seafloor to determine its geological structure.

The company requested an extension of that permit through Dec. 15, but withdrew that request Nov. 14. A company spokesman said Veritas had acquired all the data it needed from the federal waters’ portion of the survey area and no longer needed the extension. Survey work will continue into December in state waters off Anchor Point.

Veritas’ federal permit extension request was still under consideration when Shavelson requested the jurisdictional clarification Nov. 10.

Keeper, a nonprofit organization that watchdogs industrial activities within the Cook Inlet watershed, also raised other issues, including whether Veritas was meeting its survey permit’s marine mammal safety requirements.

Onboard marine mammal ob-servers required by the permit were to be approved by the National Marine Fisheries Service (NMFS) prior to all operations, something Shavelson said apparently did not occur. He also questioned the experience and qualifications of some of the observers.

Wall, however, said the fisheries service did set observer qualifications and “checked them out.”

Shavelson also said observers might not have been aboard two of the three ships involved in the survey. That, he said, drew “into question Veritas’ capacity to truly observe marine mammal interactions or harassments.”

Following an inspection in late October, the fisheries service recommended adding more observers, and another was added to the crew, Wall said.

Other concerns raised by Keeper surrounded the size of the marine mammal safety zone and whether its expanse would allow for adequate monitoring of the effects of seismic testing on marine mammals.

Keeper said Veritas and ConocoPhillips did not have incidental harassment authorization under the Marine Mammal Protection Act for the survey area, raising “serious legal questions why NMFS and MMS allowed such activities to ensue without appropriate authorizations.”

Veritas General Manager Jeff Hastings said the permit application went through the proper channels and met all the MMS requirements.

There is a nationwide Corps permit involved, he said, adding that for Veritas, it was not specific just to the Anchor Point area, but also other areas of interest in Cook Inlet.

As for the observers, Hastings said the permit required two, enough to make observations any time of day if seismic activities were under way. He confirmed that a third observer was added in response to the NMFS recommendation.

“There were all sorts of stipulations about what they’d have to do,” he said. “We were following exactly those stipulations.”

Hastings said the observers were deployed on two of the three vessels used in the survey — the ones towing the sound generators. One was not necessary on the third vessel, he said. Observations at night were done with the aid of night-vision binoculars, he added.

Survey work is to continue in state waters through the rest of this week, Hastings said.