Pilots Could Face Six-Figure Fines For Overflights Of Marine Sanctuaries

Overflight of certain marine sanctuaries below 1,000 feet msl, or in some cases below 2,000 feet msl, could result in fines of up to $100,000 imposed by NOAA, according to the AOPA. The accusation can be made based on observations by persons with no aviation background, and the burden of proof is on the pilot to show he or she did not disturb any wildlife during the flights.

The new rules have been published in the Federal Register and go into effect February 27th. The are nearly unchanged from the NPRM, which was opposed by many of aviation's "letter groups," including AOPA.

In the regulations, the FAA, which did not oppose the rules, cedes to NOAA the authority to place flight restrictions over certain marine sanctuaries. The rule as published in the Federal Register states "The National Marine Sanctuaries Act (NMSA) authorizes NOAA to prohibit or otherwise regulate activities to prevent or minimize the destruction of, loss of, or injury to a resource of a national marine sanctuary (16 U.S.C. 1436(1)).

"Regulations for the Monterey Bay, Channel Islands, Gulf of the Farallones and Olympic Coast National Marine Sanctuaries all restrict low altitude overflights within specified zones in each sanctuary (subject to certain exceptions) in order to protect marine mammals and seabirds from disturbance by aircraft. At Monterey Bay, Channel Islands, and Gulf of the Farallones, flights below 1000 feet are prohibited within the designated zones.

"At Olympic Coast, flights below 2000 feet are prohibited within one nautical mile of Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuge, or within one nautical mile seaward from the coastal boundary of the sanctuary. These regulations vary slightly with each sanctuary. The regulations for the Monterey Bay and Olympic Coast sanctuaries prohibit overflights below a certain level within designated zones— 1000 feet in Monterey Bay and 2000 feet in Olympic Coast, as noted above— without requiring a specific showing that marine mammals or seabirds have been disturbed. The regulations for the Channel Islands and the Gulf of the Farallones prohibit disturbing marine mammals or seabirds by flying below 1000 feet within specified zones of the sanctuaries.

"With this final rule, NOAA has standardized these regulations by adopting a single, consistent and clear regulatory approach regarding overflights in these sanctuaries. The regulations for each sanctuary now establish a rebuttable presumption that flying motorized aircraft below the existing minimum altitudes within any of the existing zones results in the disturbance of marine mammals or seabirds. This means that if a pilot were observed flying below the established altitude within a designated zone, it would be presumed that marine mammals or seabirds had been disturbed and that a violation of sanctuary regulations had been committed. This presumption of disturbance could be overcome by contrary evidence that disturbance did not, in fact, occur (e.g., evidence that no marine mammals or seabirds were present in the area at the time of the low overflight). Adding a rebuttable presumption to these regulations is justified by ample evidence in the administrative records that were developed for the designations of these sanctuaries. These administrative records describe the need to protect
nearshore and offshore resources from unnecessary disturbance, and explain how low altitude overflights can disrupt various marine mammal and seabird
behavior patterns, including breeding and nesting.

"Low overflights in these sites clearly pose a risk of harmful disturbance to marine mammals and seabirds, including movement and evacuation in response to low overflights where the young (pups, chicks, eggs) are crushed during an evacuation or exposed to predation as a consequence of loss of parental protection. Indeed, given the connection between low overflights and disturbance, the Southwest Region of the National Marine Fisheries Service developed marine mammal viewing guidelines for its region (which includes the three California sanctuaries), recommending that aircraft avoid flying below 1000 feet over marine mammals.

"Similarly, the State of California prohibits overflights less than 1000 feet above designated wildlife habitat areas within the state waters of each sanctuary off of California. In the Olympic Coast National Marine Sanctuary, offshore islands of the Flattery Rocks, Quillayute Needles, and Copalis National Wildlife Refuges have high pinnacles that provide important habitats for 14 species of seabirds, warranting the prohibition on flights below 2000 feet in this sanctuary to better protect these sanctuary resources. This prohibition is further consistent with an advisory published by the Federal Aviation Administration (FAA) that applies to these same areas (FAA Advisory Circular AC 91–36D). The existing NOAA overflight regulations are not indicated on current FAA aeronautical charts. The FAA has advised NOAA that with the promulgation of this final rule, it will revise the notation on current aeronautical charts to indicate the sanctuaries’ overflight regulations. The notation on FAA aeronautical charts in no way imposes additional FAA obligations on aircraft operators. Rather, NOAA expects that the revised notation will likely result in improved compliance and thereby help to ensure the protection of resources under
NOAA’s stewardship."

FMI: www.gpo.gov/fdsys/pkg/FR-2012-01-26/pdf/2012-1593.pdf