NOTICE TO LESSEES AND OPERATORS OF FEDERAL OIL, GAS,
AND SULPHUR LEASES AND PIPELINE RIGHT-OF-WAY HOLDERS
IN THE OUTER CONTINENTAL SHELF, GULF OF MEXICO OCS REGION

Structure Removal Operations

This Notice to Lessees and Operators and Pipeline Right-of-way Holders (NTL) is issued pursuant to 30 CFR 250.103 to provide guidance and clarification on structure removal operations requirements in the Gulf of Mexico OCS (GOM). It supersedes and replaces NTL 2001-G08, “Structure Removal Applications,” dated October 9, 2001, and provides additional information on Federal requirements for protecting endangered and threatened species and marine mammals and guidance for conducting explosive removals of OCS structures following expiration of the Marine Mammal Protection Act (MMPA) incidental take regulations for removal activities. Despite expiration of these incidental take regulations, MMS will continue to require timely removal of structures in accordance with the regulations in 30 CFR 250.

Background

Subpart Q of 30 CFR 250 contains the requirements for decommissioning OCS structures. These structures include, but are not limited to, well casings and casing stubs, production platforms, well protectors, caissons, pipeline accessory platforms, and other bottom-founded structures installed during exploration, development, or production activities. Pursuant to 30 CFR 250.1703(f), these structures must be decommissioned in a manner that does not cause undue or serious harm to the marine environment.

Using explosives during structure removal operations in the GOM may adversely impact endangered and threatened species and marine mammals. Some marine mammals and all sea turtles are listed under the Endangered Species Act (ESA), and all marine mammals are protected under the MMPA. Depending upon the strength of the blast and its proximity to animals, explosions may injure or kill sea turtles and marine mammals.

Biological Opinions for Removals Using Explosives

In compliance with Section 7 of the ESA, MMS and the National Oceanic and Atmospheric Administration Fisheries Service (NOAA Fisheries) formally consulted on measures to protect endangered sea turtles and marine mammals, and to allow a small number of "takes" of sea turtles incidental to explosive removal operations. These "takes" are authorized only for explosive removal operations that meet the criteria specified in the NOAA Fisheries Biological Opinion (BiOp) for this consultation (commonly called the "generic consultation"), issued on July 25, 1988. These criteria require you to:

1. Use high velocity explosives (those with detonation rates greater than 7,600 meters per second);

2. Use a maximum of eight individual blasts per group of detonations;

3. Provide an interval of 0.9 seconds (900 milliseconds) between individual blasts;

4. Set the charges at a minimum depth of 15 feet below the sediment surface; and

5. Limit the maximum amount of explosives per detonation to 50 pounds.

In the context of the Incidental Take Statement included in the BiOp for this "generic consultation," a "take" means harassment, injury, or death of a sea turtle. A copy of this 1988 “generic consultation” BiOp is found on the MMS Internet website at http://www.gomr.mms.gov/homepg/regulate/environ/generic-consultation.pdf.

In June of 2003, MMS requested that NOAA Fisheries establish a minimum or “de minimus” explosive weight limit of 5 pounds to reflect the decreased impact zone and limited mitigation needed to ensure adequate protection of sea turtles and sperm whales. An effective mitigation for explosive removal is to reduce the net explosive weight. The MMS believed that a “de minimus” limit would also provide you with an incentive to design and use smaller, but more efficiently shaped, explosive charges. NOAA Fisheries entered into an informal Section 7 consultation with MMS and then issued a new BiOp on October 10, 2003, that offers you the opportunity to reduce mitigation and conduct your own pre-detonation monitoring (in lieu of NOAA Fisheries staff and aerial surveys) if you choose to use explosive charges of 5 pounds or less. A copy of this 2003 “de minimus consultation” BiOp is found on the MMS Internet website at http://www.gomr.mms.gov/homepg/regulate/environ/de-minimus-consultation.pdf.

Monitoring Removals Using Explosives

When you use explosives during structure removal operations in the GOM, NOAA Fisheries requires you to monitor for the presence of sea turtles and marine mammals and to conduct explosive operations in a manner that will minimize the likelihood of harm to sea turtles and marine mammals.

If you use explosive charges with a weight greater than 5 pounds and not exceeding 50 pounds (under the “generic consultation” BiOp), NOAA Fisheries included specific measures in the Incidental Take Statement of the BiOp that require you to:

1. Use qualified, NOAA Fisheries-approved observers to monitor the site visually before, during, and after the detonation of charges and to conduct diver surveys if observed sea turtles are thought to be resident at the site;

2. Conduct aerial surveys before and after each blast episode;

3. Delay detonations until observed sea turtles and/or marine mammals are more than 1,000 yards from the site;

4. Limit blasts to daylight hours (between one hour after sunrise and one hour before sunset);

5. Instruct all divers who dive during the course of removal operations to scan the subsurface areas around the removal site for the presence/absence of sea turtles and marine mammals;

6. Avoid the use of scare charges; and

7. Submit a post-removal report (currently prepared by NOAA Fisheries observers).

If you use explosive charges with a weight of 5 pounds or less (under the “de minimus consultation” BiOp), NOAA Fisheries has established the following specific mitigations in lieu of using NOAA Fisheries staff observers and conducting aerial surveys:

1. Your observers must be employees (operators or removal contractors) who have attended observer training courses offered by private or government entities.

2. Your observers must be stationed in a small water craft and/or on an elevated platform on a derrick barge.

3. Your observers must survey for sea turtles and marine mammals in the impact zone (an area with a 700-foot radius centered on the detonation site) in Beaufort Sea States 0 through 3. Adequate environmental conditions must exist to allow for observations of the animals in the impact zone.

4. In all water depths, observations for sea turtles must begin at least 30 minutes before each detonation. In water depths greater than 200 meters (656 feet), observations for marine mammals must begin at least 60 minutes before each detonation.

5. Observations for sea turtles and marine mammals must not commence earlier than 20 minutes after sunrise. Therefore, no detonation in water depths 200 meters (656 feet) or less can occur until at least 50 minutes following sunrise, and no detonation in water depths greater than 200 meters (656 feet) can occur until at least 80 minutes following sunrise.

6. All pre-detonation survey requirements for sea turtles and/or marine mammals must be fully completed at least one hour before sunset. Therefore, all detonations must be completed at least one hour before sunset.

Trip Report for Explosive Removals under the “De Minimus” Consultation BiOp

If you use explosive charges with a weight of 5 pounds or less (under the “de minimus consultation” BiOp), NOAA Fisheries requires that you prepare a trip report that details the type and net explosive weight of the charges you used, targets severed, time of day pre- and post-observations were initiated and terminated, and information on any protected species (sea turtles or marine mammals) you observed inside or outside of the impact zone. Within 15 working days after you complete the removal operations, submit two (2) copies of this post-detonation trip report to:

Minerals Management Service, GOMR
Regional Supervisor, Leasing and Environment
Environmental Assessment Section (MS 5410)
1201 Elmwood Park Boulevard
New Orleans, Louisiana 70123

Additional Endangered Species Act (ESA) Section 7 Consultations

The GOMR MMS must initiate a new ESA Section 7 consultation with NOAA Fisheries for the following types of explosive structure removal method applications:

1. An application proposing an explosive structure removal operation that does not comply with the criteria and terms and conditions of the ESA Section 7 "generic” or “de minimus” consultations noted above.

2. An application proposing the use of explosives with a weight greater than 5 pounds in water depths 200 meters (656 feet) or greater.

The formal ESA Section 7 consultation process requires MMS and NOAA Fisheries to evaluate the proposed activity and the potential impact(s) on the listed species on the basis of the best scientific information available. Following review and consideration of the consultation and any measures proposed to mitigate the impacts, the NOAA Fisheries would issue a BiOp. The BiOp would include a determination of whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. If the BiOp results in a jeopardy determination, NOAA Fisheries must include reasonable and prudent alternatives to the proposed action, if any. The BiOp may include mitigation measures that are mandatory. The BiOp may also include conservation measures that, if implemented, would mitigate impacts to listed species. Implementation of conservation measures are subject to Agency discretion. The consultation process typically takes three to six months to complete.

Expired Marine Mammal Protection Act (MMPA) Incidental Take Regulations

On February 2, 2004, MMPA regulations in Subpart M (50 CFR 216.141-147) expired, and you can no longer acquire Letters of Authorization (LOA) for the incidental take (by harassment) of bottlenose and spotted dolphin during decommissioning operations using either explosive or non-explosive methods. Despite expiration of these incidental take regulations, MMS will continue to require timely removal of structures in accordance with the regulations in 30 CFR 250. However, the mitigation requirements designed to protect sea turtles (provided in the “generic consultation” and “de minimus consultation” BiOp’s) also protect marine mammals. In more than 18 years of NOAA Fisheries observer monitoring and reporting on every explosive removal operation (more than 1,750), no “take” of a marine mammal has ever been recorded. Therefore, MMS will continue to approve explosive removals, subject to those same mitigations, until NOAA Fisheries issues new incidental take regulations.

"Takes" and Penalties under the MMPA and the ESA

Any "take" of a marine mammal is a violation of the MMPA. “Take" means to harass, harm, injure or kill any marine mammal. Additionally, any "take" of an endangered marine mammal, such as the sperm whale, is a violation of the ESA.

Penalties for a "take" are authorized by both the MMPA and the ESA. Under the MMPA, violators may be assessed a civil penalty of as much as $10,000 per violation. Each "take" is a separate violation. Persons who knowingly violate the MMPA may be assessed as much as $20,000 per violation, or as much as a year in prison, or both (16 U.S.C. 1375). Under the ESA, a person who knowingly violates the provisions of the statute, regulations, or permit may be assessed a civil penalty of as much as $25,000 per violation or may be prosecuted as a criminal and fined as much as $50,000, or imprisoned for as long as a year, or both (16 U.S.C. 1540). The ESA also authorizes citizen suits against alleged violators or against the Federal government to enforce ESA requirements.

Paperwork Reduction Act Statement

The information collection provisions referred to in this NTL are intended to provide clarification, description, or interpretation of requirements contained in regulations and statutes. The Office of Management and Budget (OMB) has approved the referenced information collection requirements and assigned the following pertinent OMB control numbers: 1010-0058 for 30 CFR 250, subpart I, regulations; 1010-0045 for form MMS-124; and 0648-0230 and 0648-0151 for NOAA Fisheries reporting requirements relative to incidental takes. This NTL does not impose additional information collection requirements subject to the PRA.

Contact

Please address any questions on this NTL to Mr. T. J. Broussard at (504) 736-3245.

 

Chris C. Oynes
Regional Director