[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Proposed Rules]
[Pages 319-335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31310]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 0808061067-91396-01]
RIN 0648-AX06
Endangered and Threatened Species: Proposed Rule To Revise the
Critical Habitat Designation for the Endangered Leatherback Sea Turtle
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose
revising the current critical habitat for the leatherback sea turtle
(Dermochelys coriacea) by designating additional areas within the
Pacific Ocean. Specific areas proposed for designation include two
adjacent marine areas totaling approximately 46,100 square miles
(119,400 square km) stretching along the California coast from Point
Arena to Point Vincente; and one 24,500 square mile (63,455 square km)
marine area stretching from Cape Flattery, Washington to the Umpqua
River (Winchester Bay), Oregon east of a line approximating the 2,000
meter depth contour. The areas proposed for designation comprise
approximately 70,600 square miles (182,854 square km) of marine
habitat. Other Pacific waters within the U.S. Exclusive Economic Zone
(EEZ) were evaluated based on the geographical area occupied by the
species, but it was decided to exclude those areas from the critical
habitat designation because the potential costs outweighed the benefits
of critical habitat designation and exclusion would not result in the
extinction of the species. We are soliciting comments from the public
on all aspects of the proposal, including information on the economic,
national security, and other relevant impacts. We will consider
additional information received prior to making a final designation.
DATES: Comments and information regarding this proposed rule must be
received by March 8, 2010.
ADDRESSES: You may submit comments, identified by RIN 0648-AX06,
addressed to: David Cottingham, Chief, Marine Mammal and Sea Turtle
Conservation Division, by any of the following methods:
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Electronic Submissions: Submit all electronic comments via
the Federal eRulemaking Portal http://www.regulations.gov.
Facsimile (fax): 301-713-4060, Attn: David Cottingham.
Mail: Chief, Marine Mammal and Sea Turtle Conservation
Division, NMFS, Office of Protected Resources, 1315 East West Highway,
Silver Spring, MD 20910.
Instructions: No comments will be posted for public viewing until
after the comment period has closed. All comments received are a part
of the public record and will generally be posted to http://www.regulations.gov without change. NMFS may elect not to post comments
that contain obscene or threatening content. All Personal Identifying
Information (for example, name, address, etc.) voluntarily submitted by
the commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
NMFS will accept anonymous comments (enter N/A in the required
fields, if you wish to remain anonymous). You may submit attachments to
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF
file formats only. The proposed rule, list of references and supporting
documents, including the biological report, economic report, IRFA
analysis, and 4(b)(2) report, are also available electronically at
http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents.
FOR FURTHER INFORMATION CONTACT: Sara McNulty, NMFS, Office of
Protected Resources, 301-713-2322; Elizabeth Petras, NMFS Southwest
Region, 562-980-3238; Steve Stone, NMFS Northwest Region, 503-231-2317.
SUPPLEMENTARY INFORMATION:
Background
The leatherback sea turtle was listed as endangered throughout its
range on June 2, 1970 (35 FR 8491). Pursuant to a joint agreement, the
U.S. Fish and Wildlife Service (USFWS) has jurisdiction over sea
turtles on the land and NMFS has jurisdiction over sea turtles in the
marine environment. The USFWS initially designated critical habitat for
leatherbacks on September 26, 1978 (43 FR 43688). The critical habitat
area consists of a strip of land 0.2 miles (0.32 kilometers) wide (from
mean high tide inland) at Sandy Point Beach on the western end of the
island of St. Croix in the U.S. Virgin Islands. On March 23, 1979, NMFS
designated the marine waters adjacent to Sandy Point Beach as critical
habitat from the hundred fathom (182.9 meters) curve shoreward to the
level of mean high tide (44 FR 17710).
On October 2, 2007, we received a petition from the Center for
Biological Diversity, Oceana, and Turtle Island Restoration Network
(``Petitioners'') to revise the leatherback critical habitat
designation. The Petitioners sought to revise the designation to
include the area currently managed under the authority of the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act to
reduce leatherback interactions in the California/Oregon drift gillnet
fishery targeting swordfish and thresher sharks. This area encompasses
roughly 200,000 square miles (321,870 square km) of the U.S. EEZ from
45[deg] N. latitude about 100 miles (160 km) south of the Washington/
Oregon border southward to Point Sur, California and along a diagonal
line due west of Point Conception, California, and west to 129[deg] W.
longitude. Under the current regulations implementing the Highly
Migratory Species Fishery Management Plan, the use of large mesh drift
gillnet gear is prohibited in this area from August 15th through
November 15th (50 CFR 660.713).
On December 28, 2007, we announced our 90-day finding that the
petition provided substantial scientific information indicating that
the petitioned action may be warranted (72 FR 73745). We did not meet
the statutory deadline of October 2, 2008 for deciding whether to
proceed with a proposed designation and the Petitioners filed a lawsuit
seeking to compel that decision. Per the settlement agreement, we
agreed to submit this finding to the Federal Register by December 4,
2009. We were then granted an extension to submit this finding by
December 31, 2009.
When initially evaluating the petition to designate critical
habitat off the U.S. West Coast, we reviewed a variety of data sources
to identify specific areas within and adjacent to the petitioned area
that might warrant consideration as critical habitat. Due to the
extensive movements of leatherback sea turtles throughout the U.S. West
Coast within the U.S. EEZ, we determined that areas adjacent to the
petitioned area should also be considered. Additionally, the petitioned
area included waters outside the U.S. EEZ, however, joint NMFS and FWS
regulations provide that areas outside of U.S. jurisdiction not be
designated as critical habitat (50 CR 424.12(h)), so any areas outside
of the U.S. EEZ were excluded from our analysis. Therefore, this CH
analysis evaluated approximately 292,600 square miles (757,833 square
km) of Pacific waters within the U.S. West Coast EEZ.
We considered various alternatives to the critical habitat
designation for the leatherback sea turtle. The alternative of not
designating critical habitat for leatherbacks would impose no economic,
national security, or other relevant impacts, but would not provide any
conservation benefit to the species. This alternative was considered
and rejected because such an approach does not meet the legal
requirements of the ESA and would not provide for the conservation of
the species. The alternative of designating all potential critical
habitat areas (i.e., no areas excluded) also was considered and
rejected because, for a number of areas, the economic benefits of
exclusion outweighed the benefits of inclusion, and we determined that
exclusion of these areas would not significantly impede conservation or
result in extinction of the species. The total estimated annualized
economic impact associated with the designation of all potential
critical habitat areas would be $3.8 million to $25.5 million
(discounted at 7 percent) or $3.5 million to $25 million (discounted at
3 percent). An alternative to designating critical habitat within all
of the areas considered for designation is the designation of critical
habitat within a subset of those areas. Under section 4(b)(2) of the
ESA, we must consider the economic impacts, impacts to national
security, and other relevant impacts of designating any particular area
as critical habitat. NMFS has the discretion to exclude an area from
designation as critical habitat if the benefits of exclusion (i.e., the
impacts that would be avoided if an area were excluded from the
designation) outweigh the benefits of designation (i.e., the
conservation benefits if an area were designated), so long as exclusion
of the area will not result in extinction of the species. Exclusion
under section 4(b)(2) of the ESA of one or more of the particular areas
considered for designation would reduce the total impacts of
designation. The determination of which particular areas and how many
to exclude depends on NMFS' ESA 4(b)(2) analysis, which is conducted
for each area and described in detail in the 4(b)(2) report. Under the
preferred alternative, we propose to exclude 5 out of 8 areas
considered. The total estimated economic impact associated with this
proposed rule is $3.1 million to $20.4 million (discounted at 7
percent) or $2.8 million to $20 million (discounted at 3 percent).
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We believe that the exclusion of these areas would not significantly
impede conservation or result in the extinction of the leatherback sea
turtle. We selected this alternative because it would result in a
critical habitat designation that provides for the conservation of the
species while reducing the economic impacts on entities. This
alternative also meets ESA and joint NMFS and USFWS regulations
concerning critical habitat.
Leatherback Natural History
The leatherback is the sole remaining member of the taxonomic
family Dermochelyidae. All other extant sea turtles belong to the
family Cheloniidae. Leatherbacks are the largest marine turtle, with a
curved carapace length (CCL) often exceeding 150 cm and front flippers
that can span 270 cm (NMFS and USFWS, 1998). The leatherback's slightly
flexible, rubber-like carapace is distinguishable from other sea
turtles that have carapaces with bony plates covered with horny scutes.
In adults, the carapace consists mainly of tough, oil-saturated
connective tissue raised into seven prominent ridges and tapered to a
blunt point posteriorly. The carapace and plastron are barrel-shaped
and streamlined. Leatherbacks display several unique physiological and
behavioral traits that enable this species to inhabit cold water,
unlike other chelonid species. These include a countercurrent
circulatory system (Greer et al., 1973), a thick layer of insulating
fat (Goff and Lien, 1988; Davenport et al., 1990), gigantothermy
(Paladino et al., 1990), and the ability to elevate body temperature
through increased metabolic activity (Southwood et al., 2005; Bostrom
and Jones, 2007). These adaptations enable leatherbacks to extend their
geographic range farther than other species of sea turtles.
The leatherback life cycle is broken into several stages: (1) Egg/
hatchling; (2) post-hatchling; (3) juvenile; (4) sub-adult; and (5)
adult. There is still uncertainty regarding the age at first
reproduction. The most recent study, based on skeletochronological data
from scleral ossicles, suggests that leatherbacks in the western North
Atlantic may not reach maturity until 29 years of age (Avens et al.,
2009), which is longer than earlier estimates (Pritchard and Trebbau,
1984: 2-3 years; Rhodin, 1985: 3-6 years; Zug and Parham, 1996: 13-14
years for females; Dutton et al., 2005: 12-14 years for leatherbacks
nesting in the U.S. Virgin Islands). The average size of reproductively
active females is generally 150-162 cm CCL for Atlantic, western
Pacific, and Indian Ocean populations, and 140-150 cm CCL for eastern
Pacific populations (Hirth et al., 1993; Starbird and Suarez, 1994;
Benson et al., 2007a; Benson et al., 2007d). However, females as small
as 105-125 cm CCL have been observed nesting at various sites (Stewart
et al., 2007). Rhodin et al. (1996) speculated that extreme rapid
growth may be possible in leatherbacks due to a mechanism that allows
fast penetration of vascular canals into the fast growing cartilaginous
matrix of their bones. Whether the vascularized cartilage in
leatherbacks serves to facilitate rapid growth, or some other
physiological function, has not yet been determined.
Female leatherbacks typically nest on sandy, tropical beaches at
intervals of 2 to 4 years (McDonald and Dutton, 1996; Garcia and Sarti,
2000; Spotila et al., 2000). Females lay clutches of approximately 100
eggs several times during a nesting season, typically at 8-12 day
intervals. Female leatherbacks appear to exhibit more variable nesting
site fidelity than cheloniids and may nest at more than one beach in a
single season (Eckert et al., 1989a; Keinath and Musick, 1993;
Steyermark et al., 1996; Dutton et al., 2005). This nesting behavior
has been observed in the western Pacific Ocean; one female nesting on
Jamursba-Medi, Indonesia was observed nesting approximately 30 km east
on Wermon, Indonesia a few weeks later (S. Benson, NMFS, April 2006,
pers. comm.).
A comparison of sex ratios between Atlantic and some Pacific
nesting populations suggests that Pacific populations may be more
female biased (Binckley et al., 1998) than Atlantic populations
(Godfrey et al., 1996; Turtle Expert Working Group, 2007). However,
caution is necessary when making basin-wide comparisons because only
one study was conducted in the Pacific (Binckley et al., 1998) and sex
ratios may vary by beach or even clutch. Chevalier et al. (1999)
compared temperature-dependent sex determination patterns between the
Atlantic (French Guiana) and the Pacific (Playa Grande, Costa Rica) and
found that the range of temperatures producing both sexes was
significantly narrower for the Atlantic population.
Reliable estimates of survival and mortality at different life
history stages are not easily obtained. The annual mortality for
leatherbacks that nested at Playa Grande, Costa Rica, was estimated to
be 34.6 percent in 1993-1994 and 34.0 percent in 1994-1995 (Spotila et
al., 2000). Leatherbacks nesting in French Guiana and St. Croix had
estimated annual survival rates of 91 percent (Rivalan et al., 2005b)
and 89 percent (Dutton et al., 2005) respectively. For the St. Croix
population, the average annual juvenile survival rate was estimated to
be approximately 63 percent, and the total survival rate from hatchling
to first year of reproduction for a female was estimated to be between
0.4 and 2 percent, given an assumed age at first reproduction between 9
and 13 years (Eguchi et al., 2006). Spotila et al. (1996) estimated
first year survival rates for leatherbacks at 6.25 percent. Individual
female leatherbacks have been observed to reproduce as long as 25 years
(Hughes, 1996; D. Dutton, Ocean Planet Research, Inc., August 2009,
pers. comm.). The data suggest that leatherbacks follow a life history
strategy similar to many other long-lived species that delay age of
maturity, have low and variable survival in the egg and juvenile
stages, and have relatively high and constant annual survival in the
subadult and adult life stages (Spotila et al., 1996; 2000; Crouse,
1999; Heppell et al., 1999; 2003; Chaloupka, 2002).
Leatherbacks have the most extensive range of any living reptile
and have been reported circumglobally throughout the oceans of the
world (Marquez, 1990; NMFS and USFWS, 1998). Leatherbacks can forage in
the cold temperate regions of the oceans, occurring at latitudes as
high as 71[deg] N. and 47[deg] S.; however, nesting is confined to
tropical and subtropical latitudes. In the Pacific Ocean, significant
nesting aggregations occur primarily in Mexico, Costa Rica, Indonesia,
the Solomon Islands, and Papua New Guinea. In the Atlantic Ocean,
significant leatherback nesting aggregations have been documented on
the west coast of Africa, from Guinea-Bissau south to Angola, with
dense aggregations in Gabon. In the wider Caribbean Sea, leatherback
nesting is broadly distributed across 36 countries or territories with
major nesting colonies (> 1,000 females nesting annually) in Trinidad,
French Guiana, and Suriname (Dow et al., 2007). In the Indian Ocean,
nesting aggregations are reported in South Africa, India and Sri Lanka.
Leatherbacks have not been reported to nest in the Mediterranean Sea.
Migratory routes of leatherbacks are not entirely known. However,
recent satellite telemetry studies have documented transoceanic
migrations between nesting beaches and foraging areas in the Atlantic
and Pacific Ocean basins (Ferraroli et al., 2004; Hays et al., 2004;
James et al., 2005; Eckert, 2006; Eckert et al., 2006; Benson et al.,
2007a). In a single year, a leatherback may swim more than 10,000
kilometers (Eckert, 2006; Eckert et al., 2006). Leatherbacks
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nesting in Central America and Mexico migrate thousands of miles into
tropical and temperate waters of the South Pacific (Eckert and Sarti,
1997). After nesting, females from Jamursba-Medi, Indonesia, make long-
distance migrations across the equator either to the eastern North
Pacific, westward to the Sulawasi and Sulu and South China Seas, or
northward to the Sea of Japan (Benson et al., 2007a). One turtle tagged
after nesting in July at Jamursba-Medi arrived in waters off Oregon in
August (Benson et al., 2007a) coincident with seasonal maxima
aggregations of jellyfish (Shenker, 1984; Suchman and Brodeur, 2005).
Other studies similarly indicate that leatherbacks arrive along the
Pacific coast of North America during the summer and fall months, when
large aggregations of jellyfish form (Bowlby, 1994; Starbird et al.,
1993; Benson et al., 2007b; Graham, 2009). Leatherbacks primarily
forage on cnidarians (jellyfish and siphonophores) and, to a lesser
extent, tunicates (pyrosomas and salps) (NMFS and USFWS, 1998). Largely
pelagic, leatherbacks forage widely in temperate waters and exploit
convergence zones and upwelling areas in the open ocean along
continental margins and in archipelagic waters (Morreale et al., 1994;
Eckert, 1998; 1999).
Critical Habitat
Section 4(b)(2) of the ESA requires NMFS to designate critical
habitat for threatened and endangered species ``on the basis of the
best scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical
habitat.'' This section also grants the Secretary of Commerce
(Secretary) discretion to exclude any area from critical habitat if he
determines ``the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat.'' The Secretary's
discretion is limited, as he may not exclude areas that ``will result
in the extinction of the species.''
The ESA defines critical habitat under section 3(5)(A) as: ``(i)
The specific areas within the geographical area occupied by the
species, at the time it is listed * * *, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed * *
* upon a determination by the Secretary that such areas are essential
for the conservation of the species.''
If critical habitat is designated, section 7 of the ESA requires
Federal agencies to ensure they do not fund, authorize, or carry out
any actions that will destroy or adversely modify that habitat. This
requirement is additional to the section 7 requirement that Federal
agencies ensure their actions do not jeopardize the continued existence
of listed species.
Methods and Criteria Used To Identify Critical Habitat
In the following sections, we describe the relevant definitions and
requirements in the ESA, our implementing regulations, and the key
information and criteria used to prepare this proposed critical habitat
designation. In accordance with section 4(b)(2) of the ESA and our
implementing regulations (50 CFR 423.12(a)), this proposed rule is
based on the best scientific information available.
To assist with the revision of leatherback critical habitat, we
convened a critical habitat review team (CHRT) consisting of biologists
from NMFS Headquarters, the Southwest and Northwest Regional Offices,
and the Southwest and Northwest Fisheries Science Centers. The CHRT
members had experience and expertise on leatherback biology,
distribution and abundance of the species along the U.S. West Coast as
it relates to oceanography, consultations and management, and/or the
critical habitat designation process. The CHRT used the best available
scientific data and their best professional judgment to: (1) Verify the
geographical area occupied by the leatherbacks at the time of listing;
(2) identify the physical and biological features essential to the
conservation of the species that may require special management
considerations or protection; (3) identify specific areas within the
occupied area containing those essential physical and biological
features; (4) evaluate the conservation value of each specific area;
and (5) identify activities that may affect any designated critical
habitat. The CHRT's evaluation and conclusions are described in detail
in the following sections.
Physical or Biological Features Essential for Conservation
Joint NMFS and USFWS regulations (50 CFR 424.12(b)) state that in
determining what areas are critical habitat, the agencies ``shall
consider those physical and biological features that are essential to
the conservation of a given species and that may require special
management considerations or protection.'' Features to consider may
include, but are not limited to: ``(1) Space for individual and
population growth, and for normal behavior; (2) Food, water, air,
light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of
offspring, germination, or seed dispersal; and generally; (5) Habitats
that are protected from disturbance or are representative of the
historic geographical and ecological distributions of a species.'' The
regulations also require agencies to ``focus on the principle
biological or physical constituent elements'' (hereafter referred to as
``Primary Constituent Elements'' or PCEs) within the specific areas
considered for designation, which may include, but are not limited to,
the following: spawning sites, feeding sites, water quality or
quantity, geological formation, and tide.
The northeastern Pacific Ocean is a highly variable environment
where the habitat upon which leatherbacks and other marine species
depend can change rapidly. Although some relatively permanent features
are present, transient oceanographic features, such as eddies or
fronts, are strong drivers of ecological interactions. The major
current of the region is the southward-flowing California Current,
which is the eastern boundary current within the North Pacific Ocean
(Huyer, 1983; Hickey, 1979; 1998). The California Current is subject to
significant variations in seasonal (Barber and Smith, 1981; Hutchings
et al., 1995; Castelao et al., 2006), inter-annual (e.g. El
Ni[ntilde]o: Barber and Chavez, 1983), and decadal (e.g. Pacific
Decadal Oscillation (PDO) cycles: McGowan et al., 1998; 2003) time
scales, adding variability to local productivity resulting from
upwelling (Longhurst, 1996).
Wind-driven coastal upwelling drives primary productivity within
waters off the U.S. West Coast. As nutrient-rich water comes to the
surface, phytoplankton blooms occur and are transported offshore.
Productivity dissipates as upwelled waters move offshore (away from
regions of upwelling) and phytoplankton deplete available nutrients
(Thomas and Strub, 2001). Episodic intrusions of offshore, nutrient
depleted water and offshore movement of nutrient-rich water occur
throughout the year. The characteristics of coastal upwelling vary over
the extent of the California Current, with upwelling north of Cape
Blanco (~42.8[deg] N.) confined to a narrower band than upwelling
farther south (Huyer, 1983;
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Brodeur et al., 2004). Seasonally, upwelling begins earlier and lasts
longer in the southern California Current. The peak time of sea turtle
sightings (July-September) in neritic waters corresponds to the period
when intermittent relaxation of upwelling causes sea surface
temperatures to increase to their warmest annual levels. During these
relaxation events, there is less mixing of nutrient rich upwelled
waters and greater retention of these waters near the coast.
Eddy and frontal features are also critical elements of regional
productivity. The interaction of the California Current and topographic
features, such as banks, canyons, and other submerged features, as well
as shoreline features, such as Cape Blanco, result in the formation of
eddies, jets, and squirts (Barth et al., 2000). The most prominent
regional eddy is the Juan de Fuca Eddy, which develops offshore of
northern Washington at the mouth of the Strait of Juan de Fuca as a
result of wind-driven current interaction with the continental slope
(Hickey and Banas, 2003). The eddy is persistent from the spring
through the fall and delivers nutrient-rich waters to the surface
(Freeland and Denman, 1982; Hickey and Banas, 2003). Where eddy
features interact with coastal waters, oceanic fronts are often found.
Off Oregon and Washington, these frontal features tend to reoccur in
the same places, such as near Cape Blanco in Oregon or off Vancouver
Island and the coast of Washington (Freeland and Denman, 1982).
Leatherbacks are often described as a pelagic species; however, it
is becoming increasingly evident that they aggregate in productive
coastal areas to forage on preferred jellyfish prey (scyphomedusae)
(Houghton et al., 2006; Benson et al., 2007b; Witt et al., 2007). While
their range spans the entire Pacific, occupation of the California
Current is highly seasonal. Most of our current knowledge of
leatherback turtle use of the California Current comes from recent and
ongoing telemetry studies, aerial surveys, and ship-based research
conducted primarily in the nearshore areas off central California. The
telemetry work has documented trans-Pacific migrations between the
western tropical Pacific and the California Current; however, it is
difficult to define specific migratory corridors.
There is likely an important temporal component to the arrival and
departure of leatherbacks to and from key nearshore foraging areas.
Current research has shown that leatherbacks clearly target the dense
aggregations of brown sea nettle (Chrysaora fuscescens) that occur near
the central California coast and north through Washington during summer
and fall (Peterson et al., 2006; Harvey et al., 2006; Benson et al.,
2006; 2008). Leatherbacks have also been observed foraging on other
scyphomedusae in this area, particularly moon jellies (Aurelia labiata)
(Eisenberg and Frazier, 1983; S. Benson, NMFS, September 2007, pers.
comm.). The CHRT hypothesized that leatherbacks are primarily
transiting through offshore areas to get to these dense nearshore
aggregations of scyphomedusae, and that the boundary between primary
coastal foraging habitat and the offshore areas may vary seasonally and
inter-annually with changing oceanographic conditions. In some years,
the primary foraging habitat may be poor, or oceanographic features may
deter migration into the nearshore habitat (Benson et al., 2007c),
resulting in a more diffuse or offshore leatherback distribution.
Although jellyfish blooms are seasonally and regionally
predictable, their fine-scale local distribution is patchy and
dependent upon oceanographic conditions. Some descriptive studies have
been conducted on the distribution of scyphomedusae along the west
coast of North America; however, much more information is needed to
characterize the temporal variability from seasonal patterns to long-
term climate-linked variations. Moreover, it is ultimately the benthic
polyp stages that contribute to seasonal and annual population
variation of the adult medusae, and little information exists on their
populations in open coastal systems, including the California Current
upwelling system (W.M. Graham, University of South Alabama, September
2009, pers. comm.). Graham et al. (2001) found that jellyfish tend to
collect along boundaries: mesoscale oceanic fronts, local circulation
patterns, thermoclines, haloclines, etc., and that scyphomedusae
(specifically C. fuscescens) are closely linked to the physical
structure of the water column and the dynamics of upwelling-related
circulations. An important example is the Columbia River plume which
can act to aggregate and retain jellyfish in the northern California
Current (Shenker, 1984). These hydrographic features can be persistent
or recurrent (seasonally) in space and time (Castelao et al., 2006).
Prey concentrating forces may also be fixed in space and time
associated with geomorphologic features (e.g. headlands, capes,
seamounts, and canyons). Upwelling shadows (e.g. north Monterey Bay)
are areas of sustained high productivity (Graham and Largier, 1997) and
these areas are favorable for leatherback prey (Graham, 1994; Benson et
al., 2007b). Features such as the Monterey Bay upwelling shadow often
persist longer than other coastal fronts of similar length scale
(Graham, 1993). C. fuscescens are highly abundant north of Cape Blanco
off the Oregon Coast (Suchman and Brodeur, 2005; Reese, 2005) where
leatherback occurrence has been documented from sighting records and
telemetry studies (Bowlby, 1994; Benson et al., 2007a; 2007c). Reese
(2005) found that A. labiata was frequently abundant south of Cape
Blanco, off the coast of Crescent City, CA (~42[deg] N). Reese (2005)
also described areas of persistent jellyfish abundance north and south
of Cape Blanco and farther north along the Oregon coast inshore of
Heceta Bank (~44[deg] N), all inshore of the 100m isobath line. The
abundance of jellyfish close to shore may be enhanced by their need for
substrate during the benthic stage of their lifecycle (Suchman and
Brodeur, 2005). Jellyfish are largest and most abundant in coastal
waters of California, Oregon, and Washington during late summer-early
fall months (Shenker, 1984; Suchman and Brodeur, 2005; Graham, 2009),
which overlaps with the time when turtles are most frequently sighted
near Monterey Bay (Starbird, 1993; Benson et al., 2007b) and in Oregon
and Washington waters (Bowlby, 1994).
There is evidence that prey-concentrating hydrographic features can
be influenced by El Nino and other climate forcing. Survey data has
shown a poleward and offshore re-distribution of C. fuscescens during
El Nino events (Lenarz et al., 1995). However, it is likely that the
reliable availability of prey associated with fixed or recurrent
physical features is the reason for the leatherbacks trans-Pacific
migration from Western Pacific nesting beaches and their presence in
neritic west coast waters during summer and fall.
Jellyfish, and to a lesser extent tunicates (pyrosomas and salps),
have a low nutritive value per unit biomass, although the nutritional
value of the entire organism can be quite high in the case of large
scyphomedusae (Doyle et al., 2007). Davenport and Balazs (1991) debated
the hypothesis that the source of nutrients for leatherbacks may be
from the stomach contents of the prey, rather than from the medusae and
tunicates themselves. Leatherbacks consuming C. fuscescens might also
ingest additional prey items found in the stomach contents of this
jellyfish (Suchman et al., 2008). Regardless, leatherbacks must eat a
massive amount of jellyfish per day, approximately 20-
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30 percent of their body weight compared to cheloniids, which eat
approximately 2-3 percent of their body weight (Davenport and Balazs,
1991). It has been estimated that an adult leatherback would need to
eat about 50 large jellyfish (equivalent to approximately 200 liters)
per day to maintain its nutritional needs (Bjorndal, 1997).
Leatherbacks have been observed at or near the surface consuming C.
fuscescens within upwelling shadows or oceanographic retention areas
within neritic waters off central California (Benson et al., 2003;
2007b); however, satellite-linked time-depth recorders suggest foraging
can also occur at deeper offshore waters of the U.S. West Coast (S.
Benson, NMFS, February 2006, pers. comm.). Leatherbacks likely select
C. fuscescens as prey over other scyphomedusae species in neritic
central California waters because C. fuscescens is larger and more
nutritionally beneficial than other available scyphomedusae species
(Graham, 2009). The CHRT considered areas as primary foraging habitat
if they contain great densities of C. fuscescens; secondary foraging
habitat if they contain A. labiata and some scattered C. fuscescens;
and tertiary foraging habitat if they contain only scattered A.
labiata.
Although leatherbacks are capable of deep diving (Lutcavage and
Lutz, 1997; Hays et al., 2004), the majority of their time is spent at
or near the surface. Depth profiles developed for four leatherbacks
tagged and tracked from Monterey Bay in 2000 and 2001 (using satellite-
linked dive recorders) showed that most dives were to depths of less
than 100 meters and leatherbacks spent most of their time shallower
than 80 meters. Dutton (NMFS, January 2004, pers. comm.) estimated that
leatherbacks spend 75-90 percent of their time at depths of less than
80 meters based on preliminary data analysis. Within neritic central
California waters, leatherbacks spend approximately 50 percent of their
time at or within one meter of the surface while foraging and over 75
percent of their time within the upper five meters of the water column
(Benson et al., 2007b). Leatherback turtles also appear to spend almost
the entire dive time traveling to and from maximum depth, suggesting
that efficient transit of the water column is of paramount importance
(Eckert et al., 1989b). Leatherbacks have been observed periodically
resting on the surface, presumably to replenish oxygen stores after
repeated dives (Harvey et al., 2006; Benson et al., 2007b).
Primary Constituent Elements (PCEs)
Based on the aforementioned information, the CHRT identified two
PCEs essential for the conservation of leatherbacks in marine waters
off the U.S. West Coast: (1) Occurrence of prey species, primarily
scyphomedusae of the order Semaeostomeae (Chrysaora, Aurelia,
Phacellophora, and Cyanea) of sufficient condition, distribution,
diversity, and abundance to support individual as well as population
growth, reproduction, and development; (2) Migratory pathway conditions
to allow for safe and timely passage and access to/from/within high use
foraging areas.
When evaluating the second identified PCE, migratory pathway
conditions or passage, the CHRT considered the type of activities that
could affect or impede the passage of a leatherback turtle. After
reviewing several potential types of impediments, the CHRT determined
that only permanent or long-term structures that alter the habitat
would be considered as having potential effects on passage. Given this
determination, the CHRT did not consider fishing gear or vessel traffic
as potential threats to passage.
The CHRT considered a third PCE--water quality to support normal
growth, development, viability, and health. This PCE would encompass
bioaccumulation of contaminants and pollutants in prey and subsequent
accumulation in leatherbacks as well as direct ingestion and contact
with contaminants and pollutants. The CHRT eliminated this option
because knowledge on how water quality affects scyphomedusae was
lacking, and, where data were available, the CHRT believed prey
condition, distribution, diversity, and abundance would encompass water
quality considerations regarding bioaccumulation. The CHRT also felt
that direct ingestion and contact with contaminants and pollutants
would be encompassed in a direct effects analysis for the listed
species. We encourage public comment on the exclusion of water quality
as a PCE (see ADDRESSES).
Geographical Area Occupied and Specific Areas
One of the first steps in the critical habitat revision process was
to define the geographical area occupied by the species at the time of
listing. As described above, leatherbacks are distributed
circumglobally throughout the oceans of the world, and along the U.S.
West Coast (including the petitioned area) within the U.S. EEZ. The
CHRT reviewed a variety of data sources to identify specific areas
within and adjacent to the petitioned area that contain one or more PCE
requiring special management considerations or protection. Information
reviewed included: turtle distribution data from nearshore aerial
surveys (Peterson et al., 2006; Benson et al., 2006; 2007b; 2008; NMFS
unpublished data); offshore ship sightings and fishery bycatch records
(Bowlby, 1994; Starbird et al., 1993; Bonnell and Ford, 2001; NMFS SWR
Observer Program, unpublished data); satellite telemetry data (Benson
et al., 2007a; 2007c; 2008; 2009; NMFS unpublished data); distribution
and abundance information on the preferred prey of leatherbacks
(Peterson et al., 2006; Harvey et al., 2006; Benson et al., 2006;
2008); bathymetry (Benson et al., 2006; 2008); and regional
oceanographic patterns along the U.S. West Coast (Parrish et al., 1983;
Shenker, 1984; Graham, 1994; Suchman and Brodeur, 2005; Benson et al.,
2007b).
Joint NMFS and FWS regulations provide that areas outside of U.S.
jurisdiction not be designated as critical habitat (50 CR 424.12(h)),
so any areas outside of the U.S. EEZ were excluded from our analysis.
Thus, the occupied geographic area under consideration for this
designation was limited to areas along the U.S. West Coast within the
U.S. EEZ from the Washington/Canada border to the California/Mexico
border.
The CHRT recognized that leatherback habitat use appears to vary
seasonally and spatially. The boundaries chosen to define each specific
area represent the CHRT's best estimate of where these turtles
transition from foraging to migrating or where prey composition or
abundances change. Most leatherback sightings occur in marine waters
within the neritic zone. The species may pursue prey as far as the
extent of mean lower low water (S. Benson, NMFS, September 2000,
unpublished) so the CHRT considered this as the shoreward extent of
distribution in those specific areas with documented nearshore
distribution.
The following paragraphs describe each specific area (shown on
Figure 1) and summarize the data used to determine that each area is
occupied by leatherbacks:
Area 1: Nearshore area from Point Arena (peninsula where the Point
Arena Lighthouse is located) to Point Sur California and offshore to
the 200 meter isobath. The specific boundaries are the area bounded by
Point Sur (36[deg]18'22'' N./121[deg]54'9'' W.) then north along the
shoreline following the line of mean lower low water to Point Arena,
California (38[deg]57'14'' N./123[deg]44'26'' W.) then west to
38[deg]57'14'' N./123[deg]56'44'' W. then south along the 200 meter
isobath
[[Page 325]]
to 36[deg]18'22'' N./122[deg]4'13'' W. then east to the point of origin
at Point Sur. Leatherback presence is based on aerial surveys,
shipboard sightings, and telemetry studies. This area is a principal
California foraging area (Benson et al., 2007b) with high densities of
primary prey species C. fuscescens occurring here seasonally from April
to November (Graham, 1994).
Area 2: Nearshore area from Cape Flattery, Washington, to Umpqua
River (Winchester Bay), Oregon and offshore to a line approximating the
2000 meter isobath. The specific boundaries are the area bounded by
Winchester Bay, Oregon (at the tip of the south jetty) north along the
shoreline following the line of mean lower low water to Cape Flattery,
Washington (48[deg]23'10'' N./124[deg]43'32'' W.) then north to the
U.S./Canada boundary at 48[deg]29'38'' N./124[deg]43'32'' W. then west
and south along the line of the U.S. EEZ to 47[deg]57'38'' N./
126[deg]22'54'' W. then south along a line approximating the 2,000
meter isobath that passes through points at 47[deg]39'55'' N./
126[deg]13'28'' W., 45[deg]20'16'' N./125[deg]21' W. to 43[deg]40'8''
N./125[deg]17' W. then east to the point of origin at Winchester Bay.
Leatherback presence is based on aerial surveys, shipboard surveys,
fishery interaction data, and telemetry studies. This area is the
principal Oregon/Washington foraging area and includes important
habitat associated with Heceta Bank, Oregon. The greatest densities of
a primary prey species C. fuscescens occur north of Cape Blanco, Oregon
and in shallow inner shelf waters (Suchman and Brodeur, 2005).
Area 3: Nearshore area south of Area 2 from Umpqua River
(Winchester Bay), Oregon, to Point Arena, California, shoreward of a
line approximating the 2000 meter isobath. This line runs from
43[deg]40' N./125[deg]17' W. through 43[deg]24'10'' N./125[deg]16' W.,
42[deg]39'3'' N./125[deg]7'37'' W., 42[deg]24'49'' N./125[deg]0'13''
W., 42[deg]3'17'' N./125[deg]9'51'' W., 40[deg]49'38'' N./
124[deg]49'29'' W., 40[deg]23'33'' N./124[deg]46'32'' W., to
38[deg]57'14'' N./123[deg]56'44'' W. then east to Point Arena.
Leatherback presence is based on aerial survey data. This area includes
major upwelling centers between Cape Blanco, Oregon and Cape Mendocino,
California and is characterized by cold sea surface temperatures
(<13[deg] C) and great densities of the prey species A. labiata.
Although leatherback use is limited, this area could experience greater
use during warm water episodes such as an El Nino event.
Area 4: Offshore area west and adjacent to Area 2 (see above).
Includes waters west to a line from 47[deg]57'38'' N./126[deg]22'54''
W. southwest to 43[deg]40'8'' N./129[deg]1'30'' W. Leatherback presence
is based on aerial surveys. This area is used primarily as a region of
passage to/from Areas 2 and 5 (see below) although prey species are
present and it is used as a secondary foraging area. This area contains
large numbers of A. labiata and some C. fuscescens, with greater
densities of C. fuscescens found east of Area 4 in Area 2.
Area 5: Offshore area south and adjacent to Area 4 and west and
adjacent to the northern portion of Area 3 (see above). This area
includes all waters north of a line consistent with the California/
Oregon border and west to the boundary of the U.S. EEZ. Leatherback
presence is based on aerial surveys, telemetry studies, and fishery
interaction data. This area includes prey species within primary
offshore foraging habitat and passage to Areas 2, 3 and 4 (see above).
Area 6: Offshore area south and adjacent to Area 5 and west and
adjacent to the southern portion of Area 3 (see above) offshore to a
line connecting 42[deg] N./129[deg] W. and 38[deg]57'14'' N./
126[deg]22'55'' W. Leatherback presence is based on aerial surveys,
telemetry studies, and fishery interaction data. This area includes
prey species within secondary foraging habitat west of Cape Mendocino
and passage between Area 5 (see above) and Area 7 (see below).
Area 7: Nearshore area from Point Arena, California, to Point
Vicente, California (35[deg]44'30'' N./118[deg]24'44'' W.), exclusive
of Area 1 (see above) and offshore to a line connecting 38[deg]57'14''
N./126[deg]22'55'' W. and 33[deg]44'30'' N./121[deg]53'41'' W. This
area includes waters surrounding the northern Santa Barbara Channel
Islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa Islands).
Leatherback presence is based on aerial surveys, telemetry studies, and
fishery interaction data. This area includes prey species within
secondary foraging areas characterized by ocean frontal zones west of
the continental shelf that are occupied by aggregations of A. labiata
and lower densities of C. fuscescens. The frontal zones are created by
a series of quasi-permanent, retentive eddies or meanders, associated
with offshore-flowing squirts and jets anchored at coastal promontories
between Point Reyes and Point Sur, which create linkages between
nearshore waters of Area 1 and offshore waters of the California
Current. Telemetry data indicate that this area is commonly utilized by
leatherbacks, particularly when jellyfish availability in Area 1 is
poor. This area also provides passage to/from foraging habitat in Areas
1, 5, and 6 (see above), often through the northern Santa Barbara
Channel Islands during the spring and early summer months.
Area 8: Extreme offshore area west and adjacent to Areas 6 and 7
from the California/Oregon border then south of Area 7, including areas
closer to the coast, along the U.S. EEZ to the U.S./Mexico border. The
western and southern borders of Area 8 are the U.S. EEZ. This area
includes waters surrounding the southern Santa Barbara Channel Islands
(San Nicholas, Santa Barbara, Catalina, and San Clemente Islands).
Leatherback presence is based on aerial surveys, telemetry studies, and
fishery interaction data. This area includes prey species within
tertiary foraging habitat characterized by warm, low salinity offshore
waters and passage to/from foraging habitat in Areas 1, 5, 6, and 7
(see above).
BILLING CODE 3510-22-P
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[GRAPHIC] [TIFF OMITTED] TP05JA10.012
BILLING CODE 3510-22-C
Unoccupied Areas
Section 3(5)(A)(ii) of the ESA authorizes designation of ``specific
areas outside the geographical areas occupied by the species at the
time it is listed'' if those areas are determined to be essential to
the conservation of the species. Joint NMFS and USFWS regulations (50
CFR 424.12(e)) emphasize that the agency shall designate as critical
habitat areas outside the geographical area presently occupied by a
species only when a designation limited to its present range would be
inadequate to ensure the conservation of the species. At the present
time we have not identified additional specific areas outside the
geographic area occupied by leatherbacks that may be essential for the
conservation of the species.
Special Management Considerations or Protections
An occupied area may be designated as critical habitat if it
contains physical and biological features that ``may require special
management considerations or protection.'' Joint NMFS and USFWS
regulations (50 CFR 424.02(j)) define ``special management
considerations or protection'' to mean ``any methods or procedures
useful in protecting physical and biological features of the
environment for the conservation of listed species.'' The CHRT
identified a number of activities that may threaten the identified
PCEs, as impacts to the PCEs also impact the physical and biological
features. The CHRT grouped these activities into eight
[[Page 327]]
activity types: Pollution from point sources (e.g. National Pollution
Discharge Elimination System (NPDES)); runoff from agricultural
pesticide use; oil spills; power plants; aquaculture; desalination
plants; tidal energy or wave energy projects; and liquid natural gas
(LNG) projects. All of these activities have the potential to affect
the PCEs by altering prey abundance, prey contamination levels, and
free passage between and within specific areas (Table 1). Some of these
activities may also have the potential to impact PCEs positively (e.g.
infrastructure for aquaculture may provide substrate and habitat for
the benthic polyp stages of medusae).
The CHRT initially considered impacts to PCE's from potential
offshore wind energy projects, but due to lack of data and uncertainty
regarding the potential for offshore wind energy projects off the U.S.
West Coast, they did not have enough information to fully evaluate
costs and effects of wind projects alongside the analysis on tidal
energy and wave energy projects. Therefore, the CHRT recommended that
we exclude wind energy from this analysis and solicit public comment on
this issue (see ADDRESSES).
The CHRT also considered impacts to PCE's from commercial fishing
activities, but ultimately determined that commercial fisheries would
not impact PCE's. When considering the prey PCE, the CHRT looked at
potential fisheries that would target jellyfish, but no such fishery
was anticipated, within the evaluated areas, in the foreseeable future.
The bycatch of jellyfish in existing commercial fisheries was also
considered, but it was determined that the level of bycatch was
limited. When considering impacts to the passage PCE, the team
considered whether fishing gear could be considered an impediment to
the passage of leatherbacks to and from their foraging areas, and if
the presence of that gear altered the habitat. It was determined that
only permanent or long-term structures would be considered for their
potential to affect habitat and the passage PCE. Additionally, the
direct take of the species in fishing gear is more appropriately
considered under the jeopardy standard in ESA section 7 consultations.
Therefore, the CHRT recommended that we exclude commercial fishing
activities from our analysis and solicit public comment on this issue
(see ADDRESSES).
The CHRT also considered ocean acidification (and myriad
contributing activities) as possibly affecting the prey PCE. The Class
Scyphozoa, which includes C. fuscescens and A. labiata, has calcium
sulfate hemihydrate statoliths, which may be affected by acidification.
Winans and Purcell (in review) found no pH effect on production of new
medusae (ephyrae); statoliths were not decreased in number, but were
smaller in low pH. Iglesias-Rodriquez et al. (2008) found increases in
biogenic calcification in phytoplankton with increased CO2
using methods they argued were more realistic than those used in
previous studies that showed decreased calcification with increasing
PCO2. Attrill et al. (2007) suggested that lower pH in parts
of the North Sea opened an ecological niche leading to an increase in
jellyfish abundance. Yet, Richardson and Gibbons (2008) repeated and
expanded the work of Attrill et al. (2007) and found no correlation
between ocean acidification and scyphomedusae abundance. Given
equivocal or sparse data, the CHRT recommended that we exclude ocean
acidification and the contributing activities from our analysis and
solicit public comment on this issue (see ADDRESSES).
Table 1--Summary of Occupied Specific Areas, Surface Area Covered, the PCEs Present, and Activities That May
Affect the PCEs Within Each Area Such That Special Management Considerations or Protection May Be Required
----------------------------------------------------------------------------------------------------------------
Specific area Est. area (sq. mi) PCE(s) present Activities
----------------------------------------------------------------------------------------------------------------
Area 1............................. 4,700 (12,173 sq. km). Prey, Passage......... Prey--point pollution,
pesticides, oil spills,
power plants, desalination
plants, tidal wave/energy
projects, aquaculture.
Passage--oil spills, tidal
wave/energy projects,
aquaculture.
Area 2............................. 24,500 (63,455 sq. km) Prey, Passage......... Prey--point pollution,
pesticides, oil spills.
Passage--oil spills.
Area 3............................. 11,600 (30,044 sq. km) Prey, Passage......... Prey--point pollution,
pesticides, oil spills,
tidal wave/energy
projects, LNG.
Passage--oil spills, tidal
wave/energy projects.
Area 4............................. 30,000 (77,700 sq. km) Prey, Passage......... Prey--oil spills.
Passage--oil spills.
Area 5............................. 24,500 (63,455 sq. km) Prey, Passage......... Prey--oil spills.
Passage--oil spills.
Area 6............................. 34,200 (88,578 sq. km) Prey, Passage......... Prey--oil spills.
Passage--oil spills.
Area 7............................. 46,100 (119,398 sq. Prey, Passage......... Prey--point pollution,
km). pesticides, oil spills,
power plants, desalination
plants, tidal wave/energy
projects, LNG,
aquaculture.
Passage--oil spills, tidal
wave/energy projects,
aquaculture.
Area 8............................. 117,000 (303,030 sq. Prey, Passage......... Prey-- oil spills, LNG,
km). aquaculture.
Passage--oil spills,
aquaculture.
----------------------------------------------------------------------------------------------------------------
Military Areas Ineligible for Designation
Recent amendments to the ESA preclude the Secretary from
designating military lands as critical habitat if those lands are
subject to an Integrated Natural Resource Management Plan (INRMP) under
the Sikes Act and the Secretary certifies in writing that the plan
benefits the listed species (Section 4(a)(3), Pub. L. 108-136). We are
not aware of any INRMPs in the areas under
[[Page 328]]
consideration for designation as critical habitat.
ESA Section 4(b)(2) Analysis
Section 4(b)(2) of the ESA requires us to use the best scientific
information available in designating critical habitat. It also requires
that before we designate any ``particular areas,'' we must consider the
economic impacts, impacts on national security, and any other relevant
impacts. The ESA does not define what ``particular areas'' means in the
context of section 4(b)(2), or the relationship of particular areas to
``specific areas'' that meet the statute's definition of critical
habitat. As there was no biological basis to further subdivide the
eight ``specific areas'' identified within the occupied geographical
area into smaller units, we treated these areas as the ``particular
areas'' for our initial consideration of impacts of designation. Once
impacts are determined, we decide whether to consider exercising
discretion to exclude any areas. If we consider exercising such
discretion, we are to weigh the benefits of excluding any particular
area (avoiding the economic, national security or other costs) against
the benefits of designating it (the conservation benefits to the
species). If we conclude that the benefits of exclusion in any
particular area outweigh the benefits of designation, we have
discretion to exclude areas, so long as exclusion will not result in
extinction of the species. We determined to proceed with evaluating the
benefits of designation.
Benefits of Designation
The primary benefit of designation is the protection afforded under
section 7 of the ESA, requiring all Federal agencies to ensure their
actions are not likely to destroy or adversely modify critical habitat.
This is in addition to the requirement that all Federal agencies ensure
that their actions are not likely to jeopardize the continued existence
of the species. The designation of critical habitat also provides other
benefits such as improved education and outreach by informing the
public about areas and features important to species conservation.
For the purposes of conducting the 4(b)(2) analysis, it was not
possible to directly compare the benefits to the costs of designation.
For a direct comparison, the benefits would need to be monetized, but
we are unaware of available data that would allow us to monetize the
benefits expected from ESA section 7 consultations, education, and
outreach for the considered areas. As an alternative approach, we used
the overall conservation value ratings that were calculated for each
area by the CHRT to represent the qualitative conservation benefit of
designation.
In evaluating the conservation value of each specific area, the
CHRT assessed how leatherbacks use each area, the frequency and
duration of that use, and the quality and quantity of prey species
within each area. After reviewing the best available information, the
CHRT determined that the eight specific areas varied in terms of
potential conservation value for leatherback turtles. The CHRT used
professional judgment to assign a relative biological importance score
of 1, 2, or 3 (3 representing the highest importance) to each area for
each of our two identified PCEs. Scores were then summed and used to
assign an overall conservation rating of ``Very Low'', ``Low'',
``Medium'', or ``High'' for each specific area. Summed numeric
equivalents for each conservation rating were: Very Low = 3 or less;
Low = 4; Medium = 5; High = 6. The scoring criteria, parameter scores,
and overall conservation rating for each specific area are summarized
in Table 2.
Table 2--Summary of Presence (Yes/No) of Primary Constituent Elements and the Resultant Conservation Value
Ratings for Specific Areas Occupied by Leatherback Turtles
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
PCE Condition & Frequency
1 = Preferred prey rare or absent and passage conditions to/
from/within high use foraging areas needed infrequently or
inconsistently
Specific area 2 = Preferred prey present but not consistently abundant or Overall
not well distributed and passage conditions to/from/within conservation
high use foraging areas are needed more frequently and rating
consistently
3 = Preferred prey consistently abundant and well
distributed and passage conditions to/from/within high use
foraging areas needed frequently and consistently
--------------------------------------------------------------------------------
Prey.............. Value Passage........... Value Total
----------------------------------------------------------------------------------------------------------------
Area 1......................... Yes............... 3 Yes............... 3 High.
Area 2......................... Yes............... 3 Yes............... 3 High.
Area 3......................... Yes............... 2 Yes............... 1 Very Low.
Area 4......................... Yes............... 2 Yes............... 3 Medium.
Area 5......................... Yes............... 2 Yes............... 3 Medium.
Area 6......................... Yes............... 1 Yes............... 3 Low.
Area 7......................... Yes............... 2 Yes............... 3 Medium.
Area 8......................... Yes............... 1 Yes............... 3 Low.
----------------------------------------------------------------------------------------------------------------
Economic Benefits of Exclusion
To determine the economic benefits of excluding particular areas
from designation, we estimated the potential cost of designation
associated with each area. To do this we first accounted for the
baseline level of protection afforded to leatherbacks based on existing
Federal and state regulations. When calculating baseline cost
estimates, the CHRT heavily relied on information from the draft
economic reports supporting critical habitat designations for the
southern resident killer whale (Industrial Economics Incorporated,
2006), green sturgeon (Industrial Economics Incorporated, 2008), and
the final economic report for salmon and steelhead (NMFS, 2005). The
level of future activities was developed using GIS data and other
published data on existing, pending, or future actions (e.g. Federal
Energy Regulatory Commission (FERC) permit license data for LNG
projects).
In areas where listed species coexist with leatherbacks
(particularly green sturgeon), a portion of affected future activities
modifications (and associated costs) are expected to occur regardless
of leatherback critical habitat designation. Thus, after estimating the
number of projects that may potentially
[[Page 329]]
require modifications, the CHRT applied an ``incremental score'' to
more accurately represent the portion of the projects that would be
affected solely by leatherback critical habitat designation. For
activities that occur in areas with more existing protections (e.g.
areas with Marine Sanctuaries or overlapping critical habitat with
other listed species), the CHRT estimated that 30 percent of costs
would be attributable to designated leatherback critical habitat. For
activities that occur in areas with fewer existing protections (e.g.
areas with other listed species), the CHRT estimated that 50 percent of
costs would be attributable to designation of leatherback critical
habitat (see economic report for more details).
Annual costs were estimated for each activity in each area and then
modified by the incremental score percentage to determine the estimated
costs for project modifications due to leatherback critical habitat
designation. The majority of activity costs were projected 20 years
into the future and where applicable, costs were adjusted for inflation
to reflect 2009 values (with a 7 percent discount rate applied to
future costs). The CHRT calculated low and high cost scenarios based on
spatial considerations for activities that occur on land (e.g.
agriculture pesticide application) and the likelihood of modifications
to existing activities. Where applicable, the high cost scenario
estimated costs for activities within 5 miles of the coastline; the low
cost scenario estimated costs for activities within 1 mile of the
coastline. Estimated costs were determined for all activities except
LNG and aquaculture, therefore only a qualitative assessment was
possible for these activities. The median value between the high and
low cost scenarios was used as the estimated incremental cost for the
designation of each area (see economic report for more details).
Exclusion of Particular Areas Based on Economic Impacts
The conservation benefit to the species resulting from the
designation of a particular area is not directly comparable to the
economic benefit resulting from the exclusion of that particular area.
As explained above, we had sufficient information to monetize the
estimated economic benefits of exclusion, but were not able to monetize
the conservation benefits of designation. To qualitatively scale the
economic cost estimates in the same manner as the conservation value
ratings, we created economic thresholds (see Table 3) and assigned each
area an economic rating based on its median annualized cost.
Table 3--Economic Thresholds and Corresponding Economic Ratings
------------------------------------------------------------------------
Threshold Economic rating
------------------------------------------------------------------------
$20,000,000 or more........................ High.
$700,000-$19,999,999....................... Medium.
$25,000-$699,999........................... Low.
$0-$24,999................................. Very Low.
------------------------------------------------------------------------
As shown in Table 3 above, we set the high economic threshold at
$20 million or more in costs, based on an estimate of 3 percent of
total revenue for activities associated with Area 7, the area with the
highest estimated revenues and costs. The economic threshold between
medium and low economic costs was set at $700,000 based on the median
value of cost per area. A very low estimated cost threshold was set at
less than $25,000, based on the presumed insignificant distributed
burden this would place on affected activities. No areas currently
under review as potential leatherback critical habitat have either high
or very low economic costs using this economic scale (see the economic
and ESA section 4(b)(2) reports for more details).
The dollar thresholds do not represent a judgment that areas with
medium conservation value are worth no more than $19,999,999, or that
areas with very low conservation value ratings are worth no more than
$24,999. These thresholds represent the levels at which we believe the
economic impact associated with a particular area would outweigh the
conservation benefits of designating that area.
To weigh the benefits of designation against the benefits of
exclusion, we compared the conservation value ratings against the
economic ratings. Areas were determined to be eligible for exclusion
based on economic impacts using three decision rules: (1) Areas with
conservation value ratings of ``high'' or ``medium'' were eligible for
exclusion only if they had an economic rating above the conservation
rating, unless decision rule 3 applies; (2) Areas with conservation
value ratings of ``low'' or ``very low'' were eligible for exclusion if
they had an economic rating equal to or above the conservation value
rating; and (3) Offshore areas with oil spills as the only activity
that may affect PCEs are eligible for exclusion regardless of
conservation value or economic ratings (see explanation below). We seek
public comment on these decision rules (see ADDRESSES).
The dollar thresholds and decision rules provided a relatively
simple process for identifying specific areas warranting consideration
for exclusion. See Table 4 for a summary of the information used to
determine which areas are eligible for exclusion based on economic
impacts.
Table 4--Median Annual Costs and Ratings by Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Median annualized Activities types Conservation value Eligible for exclusion
Areas cost that may affect Economic rating rating based on economic
PCEs impacts?
--------------------------------------------------------------------------------------------------------------------------------------------------------
7.................................... * $6,820,450 8 Medium.................. Medium.................. No.
1.................................... * 3,581,850 6 Medium.................. High.................... No.
3.................................... * 2,739,800 5 Medium.................. Very Low................ Yes.
2.................................... * 1,345,950 3 Medium.................. High.................... No.
4.................................... 46,650 ** 1 Low..................... Medium.................. Yes.
5.................................... 46,650 ** 1 Low..................... Medium.................. Yes.
6.................................... 46,650 ** 1 Low..................... Low..................... Yes.
8.................................... * 46,650 3 Low..................... Low..................... Yes.
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* Cost estimates for LNG and Aquaculture were not available so were not included in these estimates. See the economic report for more details.
** Oil spill is only activity.
Based on this analysis, Areas 3, 4, 5, 6 and 8 were identified as
eligible for exclusion based on economic impacts. The Secretary may
exclude any area from critical habitat if he determines that the
benefits of exclusion outweigh
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the benefits of designating such an area as critical habitat, unless he
determines that failure to designate will result in the extinction of
the species concerned. Therefore, the CHRT considered whether the
exclusion of Areas 3, 4, 5, 6, and 8 would result in the extinction of
the endangered leatherback sea turtle.
The CHRT evaluated this question based on the information reviewed
when addressing the conservation value ratings and activities that may
impact PCEs, and determined that exclusion of Areas 3, 4, 5, 6, and 8
is not likely to cause the extinction of leatherbacks. The CHRT also
evaluated whether excluding any of these areas would significantly
impede the conservation of the species. After examining relevant
scientific and commercial information, the CHRT determined that the
exclusion of these areas would not significantly impede conservation.
For Area 3 the CHRT based this determination in part on the area's
limited overall prey abundance, distribution of preferred prey species,
and use of the area by leatherbacks. For Areas 6 and 8 the CHRT based
this determination on the fact that these areas have relatively few
threats and offer only secondary and tertiary foraging habitat,
respectively.
Given their medium conservation value ratings, special attention
was given to Areas 4 and 5 to ensure that exclusions would not
significantly impede conservation. The CHRT found that although these
areas received a medium conservation value rating, oil spills are the
only identified activity that may affect PCEs. Based on NOAA's records
since the late 1950s, there have been very few and relatively small oil
spills documented in these two areas. In general, vessels transiting
offshore are widely dispersed and less vulnerable to collisions with
one another or with man-made or natural structures. In addition, there
has been limited or no response to offshore oil spills when they have
occurred off the U.S. West Coast. Therefore, the CHRT reasoned that
exclusion of these areas would not impede conservation of leatherback
sea turtles since there are few activities within Areas 4 and 5 likely
to require special management afforded by critical habitat designation.
Based on the best scientific data currently available, we propose
to exclude Areas 3, 4, 5, 6, and 8 from critical habitat designation
because the benefits of exclusion outweigh the benefits of inclusion
and exclusion will not impede conservation or result in the extinction
of the species. We recognize that the lack of documented evidence of
leatherbacks in some of these areas may be the result of inadequate
monitoring and encourage directed surveys in both offshore and
nearshore areas to increase our knowledge of leatherback use of the
waters of the U.S. West Coast. We will evaluate any new information in
the final rule stage and encourage public comment on these proposed
exclusions (see ADDRESSES).
Exclusions Based on Impacts on National Security
The Secretary must consider possible impacts on national security
when determining critical habitat. Discussions with the Department of
Defense (DOD) indicate that there is overlap between the areas proposed
here as critical habitat and areas off southern California and
Washington where the U.S. Navy conducts training exercises. The Navy
provided letters to NMFS detailing the operations areas that they
believe should be excluded from critical habitat due to national
security. We will continue working with the DOD to identify impacts to
national security and to determine whether any military areas are
eligible for exclusion from the proposed critical habitat designation.
We encourage the public to see Appendix 1 of the 4(b)(2) report for
additional information.
Exclusions for Indian Lands
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and the
application of fiduciary standards of due care with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights.
Pursuant to these authorities lands have been retained by Indian Tribes
or have been set aside for tribal use. These lands are managed by
Indian Tribes in accordance with tribal goals and objectives within the
framework of applicable treaties and laws. Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the responsibilities of the Federal Government in matters affecting
tribal interests. Indian lands are those defined in the Secretarial
Order ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' (June 5, 1997),
including: (1) Lands held in trust by the United States for the benefit
of any Indian tribe; (2) land held in trust by the United States for
any Indian Tribe or individual subject to restrictions by the United
States against alienation; (3) fee lands, either within or outside the
reservation boundaries, owned by the tribal government; and (4) fee
lands within the reservation boundaries owned by individual Indians.
We reviewed maps indicating that several areas along the Washington
coast under consideration as critical habitat overlap with Indian
lands. These overlapping areas consist of a narrow intertidal zone
associated with Indian lands, from the line of mean lower low water to
extreme low water, for the following federally recognized tribes (73 FR
18553, April 4, 2008): The Hoh, Makah, Quileute, and Quinault tribes.
To assess the exclusion of Indian lands under section 4(b)(2) of
the ESA, we compared the benefits of designation to the benefits of
exclusion. The benefits of exclusion include: (1) The furtherance of
established national policies, our Federal trust obligations and our
deference to the tribes in management of natural resources on their
lands; (2) the maintenance of effective long-term working relationships
to promote species conservation on an ecosystem-wide basis; (3) the
allowance for continued meaningful collaboration and cooperation in
scientific work to learn more about the conservation needs of the
species on an ecosystem-wide basis; and (4) continued respect for
tribal sovereignty over management of natural resources on Indian lands
through established tribal natural resource programs. Given that the
affected Indian lands represent a very small proportion of the total
critical habitat area and, moreover, the high benefits of exclusion, we
determined that the benefits of exclusion outweigh the benefits of
designation. We also determined that these proposed exclusions will not
result in extinction, or impede conservation, of leatherback turtles.
Therefore, we propose the exclusion of the identified Indian lands from
the proposed critical habitat designation for leatherback turtles. The
4(b)(2) report provides a more detailed description of our assessment
and determination for Indian lands.
Critical Habitat Designation
We proposed to designate areas 1, 2, and 7, which includes
approximately 70,600 square miles (182,854 square km) of marine habitat
in California, Oregon, and Washington and offshore Federal waters. The
proposed critical habitat areas contain the physical or biological
features essential to the conservation of
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the species that may require special management considerations or
protection. We propose to exclude from designation areas 3, 4, 5, 6,
and 8, for which the benefits of exclusion outweigh the benefits of
designation. We conclude that the exclusion of these areas will not
result in the extinction of the species, nor impede conservation of the
species.
Effects of Critical Habitat Designation
Section 7(a)(2) of the ESA requires Federal agencies to insure that
any action authorized, funded, or carried out by the agency (agency
action) does not jeopardize the continued existence of any threatened
or endangered species or destroy or adversely modify designated
critical habitat. Federal agencies are also required to confer with us
regarding any actions likely to jeopardize a species proposed for
listing under the ESA, or likely to destroy or adversely modify
proposed critical habitat, pursuant to section 7(a)(4). A conference
involves informal discussions in which we may recommend conservation
measures to minimize or avoid adverse effects. The discussions and
conservation recommendations are to be documented in a conference
report provided to the Federal agency. If requested by the Federal
agency, a formal conference report may be issued; including a
biological opinion prepared according to 50 CFR 402.14. A formal
conference report may be adopted as the biological opinion when the
species is listed or critical habitat designated, if no significant new
information or changes to the action alter the content of the opinion.
When a species is listed or critical habitat is designated, Federal
agencies must consult with NMFS on any agency actions to be conducted
in an area where the species is present and that may affect the species
or its critical habitat. During the consultation, we would evaluate the
agency action to determine whether the action may adversely affect
listed species or critical habitat and issue our findings in a
biological opinion or concurrence letter. If we conclude in the
biological opinion that the agency action would likely result in the
destruction or adverse modification of critical habitat, we would also
recommend any reasonable and prudent alternatives to the action.
Reasonable and prudent alternatives (defined in 50 CFR 402.02) are
alternative actions identified during formal consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that would avoid the destruction or
adverse modification of critical habitat. Regulations (50 CFR 402.16)
require Federal agencies that have retained discretionary involvement
or control over an action, or where such discretionary involvement or
control is authorized by law, to reinitiate consultation on previously
reviewed actions in instances where: (1) Critical habitat is
subsequently designated; or (2) new information or changes to the
action may result in effects to critical habitat not previously
considered in the biological opinion. Consequently, some Federal
agencies may request reinitiation of a consultation or conference with
us on actions for which formal consultation has been completed, if
those actions may affect designated critical habitat or adversely
modify or destroy proposed critical habitat. Activities subject to the
ESA section 7 consultation process include activities on Federal lands
and activities on private or state lands requiring a permit from a
Federal agency (e.g. an ESA section 10(a)(1)(B) permit from NMFS) or
some other Federal action, including funding (e.g. Federal Highway
Administration (FHA)). ESA section 7 consultation would not be required
for Federal actions that do not affect listed species or critical
habitat and for actions on non-federal and private lands that are not
federally funded, authorized, or carried out.
Activities That May Be Affected
Section 4(b)(8) of the ESA requires that we describe briefly and
evaluate, in any proposed or final regulation to designate critical
habitat, those activities that may destroy or adversely modify such
habitat or that may be affected by such designation. A wide variety of
activities may affect critical habitat and, when carried out, funded,
or authorized by a Federal agency, will require an ESA section 7
consultation. These Federal actions and/or regulated activities
(detailed in the economic report) include: regulation of point source
pollution, particularly NPDES facilities and pesticide application
(e.g. EPA); oil spills (e.g. U.S. Coast Guard (USCG) and EPA have
response authorities); power plants (e.g. Nuclear Regulatory Commission
(NRC) regulates commercial nuclear power); desalination plants (e.g.
EPA regulates discharge/USCG and U.S. Army Corps of Engineers (USACE)
are involved with permitting or approving structures or placing fill
that may affect navigation); tidal/wave energy (e.g. FERC permitting or
licensing); LNG projects (e.g. FERC or USCG permitting requirement),
and aquaculture (e.g. USACE, EPA, or Minerals Management Service
permitting requirements). We believe this proposed rule will provide
Federal agencies, private entities, and the public with clear
notification of critical habitat for leatherback sea turtles and the
boundaries of such habitat. This designation will also allow Federal
agencies and others to evaluate the potential effects of their
activities on critical habitat to determine if ESA section 7
consultation with NMFS is needed. Questions regarding whether specific
activities will constitute destruction or adverse modification of
critical habitat should be directed to NMFS (see ADDRESSES).
Information Quality Act and Peer Review
The data and analyses supporting this proposed action have
undergone a pre-dissemination review and have been determined to be in
compliance with applicable information quality guidelines implementing
the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In
December 2004, the Office of Management and Budget (OMB) issued a Final
Information Quality Bulletin for Peer Review pursuant to the IQA. The
Bulletin established minimum peer review standards, a transparent
process for public disclosure of peer review planning, and
opportunities for public participation with regard to certain types of
information disseminated by the Federal Government. The peer review
requirements of the OMB Bulletin apply to influential or highly
influential scientific information disseminated on or after June 16,
2005. To satisfy our requirements under the OMB Bulletin, we obtained
independent peer review of the scientific information that supports the
proposal to designate critical habitat for the leatherback sea turtle
and incorporated the peer review comments prior to dissemination of
this proposed rulemaking.
Public Comments Solicited
We solicit comments or suggestions from the public, other concerned
governments and agencies, the scientific community, industry, non-
governmental organizations, or any other interested party concerning
the proposed designation and exclusions, the biological report, the
economic report, IRFA analysis, and the 4(b)(2) report. We are
particularly interested in comments and information in the following
areas: (1) Information describing the abundance, distribution, and
habitat use of leatherback sea turtles in the eastern Pacific Ocean;
(2)
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Information on the identification, location, and the quality of
physical or biological features and PCEs which may be essential to the
conservation of the species, including whether water quality should be
a PCE; (3) Information regarding potential benefits of designating any
particular area of the proposed critical habitat, including information
on the types of Federal actions that may affect the designated critical
habitat, the physical and biological features, and/or the PCEs; (4)
Information regarding potential impacts of designating any particular
area, including the types of Federal actions that may trigger an ESA
section 7 consultation and the possible modifications that may be
required of those activities; (5) Information regarding the benefits of
excluding a particular area of the proposed critical habitat; (6)
Current or planned activities in the area proposed as critical habitat
and costs of potential modifications to those activities due to
critical habitat designation; (7) Any foreseeable economic, national
security, or other relevant impact resulting from the proposed
designation; (8) Information on water quality, ocean acidification and
projected global climate change impacts in the proposed areas and their
potential effects on the physical and biological features, and/or the
PCEs; (9) Information regarding commercial fishing activities and their
potential effects on the physical and biological features, and/or the
PCEs; (10) Information on the potential for wind energy projects off
the U.S. West Coast, including potential economic costs and effects on
the physical and biological features, and/or the PCEs.
You may submit your comments and materials concerning this proposal
by any one of several methods (see ADDRESSES). Copies of the proposed
rule and supporting documentation, including the biological report,
economic analysis, IRFA analysis, and the 4(b)(2) report, can be found
on the NMFS Web site http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents. We will consider all comments pertaining to
this designation received during the comment period in preparing the
final rule. Accordingly, the final decision may differ from this
proposal.
Public Hearings
Joint NMFS and USFWS regulations (50 CFR 424.16(c)(3)) state that
the Secretary shall promptly hold at least one public hearing if any
person requests one within 45 days of publication of a proposed
regulation to list a species or to designate critical habitat. Requests
for public hearings must be made in writing (see ADDRESSES) by February
19, 2010. If a public hearing is requested, a notice detailing the
specific hearing location and time will be published in the Federal
Register at least 15 days before the hearing is to be held. Information
on the specific hearing locations and times will be posted on our Web
site at http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents. Such hearings provide the opportunity for
interested individuals and parties to give comments, exchange
information and opinions, and engage in a constructive dialogue
concerning this proposed rule. We encourage the public's participation
and involvement in ESA matters.
Classification
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
proposed rule is significant under Executive Order 12866. An economic
report and 4(b)(2) report have been prepared to support the exclusion
process under section 4(b)(2) of the ESA.
National Environmental Policy Act
We have determined that an environmental analysis as provided for
under the National Environmental Policy Act of 1969 for critical
habitat designations made pursuant to the ESA is not required. See
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. Denied,
116 S.Ct 698 (1996).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis describing the effects
of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). We have prepared an
initial regulatory flexibility analysis (IRFA). This document is
available upon request (see ADDRESSES), via our Web site http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, or via
the Federal eRulemaking Web site at http://www.regulations.gov. The
results of the IRFA are summarized below. A description of the action,
why it is being considered, and the objectives of and legal basis for
this action are contained in the preamble of this proposed rule.
At the present time, little information exists regarding the cost
structure and operational procedures and strategies in the sectors that
may be directly affected by the potential critical habitat designation.
In addition, a great deal of uncertainty exists with regard to how
potentially regulated entities will attempt to avoid the destruction or
adverse modification of critical habitat. This is because relatively
little data exist on the effects to leatherback sea turtles and their
prey from aspects of the activities identified (i.e., water quality,
water temperature, etc.). With these limitations in mind, we considered
which of the potential economic impacts we analyzed might affect small
entities. These estimates should not be considered exact estimates of
the impacts of potential critical habitat to individual businesses.
The impacts to small businesses were assessed for the following six
activities: NPDES activities; agriculture; oil spills; power plants;
tidal/wave energy projects; and LNG projects. The impacts on small
entities were not assessed for desalination plants and aquaculture
facilities due to lack of information.
Small entities were defined by the Small Business Administration
size standards for each activity type. The majority (> 97 percent) of
entities affected within each specific area would be considered a small
entity. A total of 3,458 small businesses involved in the activities
listed above would most likely be affected by the proposed critical
habitat designation. The estimated annualized costs associated with ESA
section 7 consultations incurred per small entity range from $0 to
$281,800, with the largest annualized impacts estimated for entities
involved in agricultural pesticide application ($5,500 to $281,800) and
tidal/wave energy projects ($11,300 to $236,600). These amounts are
most likely overestimates, as they are based on assumptions that such
actions may not be able to proceed if a consultation found that the
project adversely modified critical habitat. The total estimated
annualized cost of section 7 consultation incurred by small entities is
estimated to be about $930,000. The estimated economic impacts on small
entities vary depending on the activity type and location.
As required by the RFA (as amended by the SBREFA), we considered
various alternatives to the proposed critical habitat designation for
the leatherback. We considered and rejected the alternative of not
designating critical habitat for the leatherback because such
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an approach does not meet the legal requirements of the ESA. Because
the benefits of exclusion for particular areas appear to outweigh the
benefits of designation, NMFS is proposing to exclude those areas from
the designation; however, NMFS is seeking comments on the alternative
of designating all potential critical habitat areas (i.e., no areas
excluded), and will evaluate comments received.
We have considered and evaluated each of these alternatives in the
context of the ESA section 4(b)(2) process of weighing benefits of
exclusion against benefits of designation, and we believe that the
current proposal provides an appropriate balance between conservation
needs and the associated economic and other relevant impacts. It is
estimated that small entities will avoid $578,300 in compliance costs,
due to the proposed exclusions made in this designation. We seek
information regarding the information in the economic analysis and the
impacts to small entities (see ADDRESSES).
Coastal Zone Management Act
Section 307(c)(1) of the Federal Coastal Zone Management Act of
1972 requires that all Federal activities that affect the land or water
use or natural resource of the coastal zone be consistent with approved
state coastal zone management programs to the maximum extent
practicable. We have determined that this proposed designation of
critical habitat is consistent to the maximum extent practicable with
the enforceable policies of approved Coastal Zone Management Programs
of California, Oregon, and Washington. The determination has been
submitted for review by the responsible agencies in the aforementioned
states.
Federalism
Executive Order 13132 requires agencies to take into account any
Federalism impacts of regulations under development. It includes
specific consultation directives for situations where a regulation will
preempt state law, or impose substantial direct compliance costs on
state and local governments (unless required by statute). We have
determined that the proposed rule to designate critical habitat for the
leatherback sea turtle under the ESA is a policy that does not have
federalism implications. Consistent with the requirements of Executive
Order 13132, recognizing the intent of the Administration and Congress
to provide continuing and meaningful dialogue on issues of mutual state
and Federal interest, and in keeping with Department of Commerce
policies, the Assistant Secretary for Legislative and Intergovernmental
Affairs will provide notice of the proposed action and request comments
from the appropriate officials in states where leatherback sea turtles
occur.
Paperwork Reduction Act
This proposed rule does not contain a collection-of-information
requirement for the purposes of the Paperwork Reduction Act.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act, we make the
following findings: (a) The designation of critical habitat does not
impose an ``enforceable duty'' on state, local, tribal governments or
the private sector and therefore does not qualify as a Federal mandate.
In general, a Federal mandate is a provision in legislation, statute,
or regulation that would impose an ``enforceable duty'' upon non-
federal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
Under the ESA, the only regulatory effect is that Federal agencies must
ensure that their actions do not jeopardize the continued existence of
the species or destroy or adversely modify critical habitat under
section 7. While non-federal entities who receive Federal funding,
assistance, permits or otherwise require approval or authorization from
a Federal agency for an action may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
jeopardy and the destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply. (b) We do
not believe that this proposed rule would significantly or uniquely
affect small governments because it is not likely to produce a Federal
mandate of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. In addition, the designation of critical habitat imposes no
obligations on local, state or tribal governments. Therefore, a Small
Government Agency Plan is not required.
Takings
Under Executive Order 12630, Federal agencies must consider the
effects of their actions on constitutionally protected private property
rights and avoid unnecessary takings of property. A taking of property
includes actions that result in physical invasion or occupancy of
private property, and regulations imposed on private property that
substantially affect its value or use. In accordance with Executive
Order 12630, the proposed critical habitat designation does not pose
significant takings implications. A takings implication assessment is
not required. This proposed designation affects only Federal agency
actions (i.e. those actions authorized, funded, or carried out by
Federal agencies). Therefore, the critical habitat designation does not
affect landowner actions that do not require Federal funding or
permits. This designation would not increase or decrease the current
restrictions on private property concerning take of leatherback sea
turtles, nor do we expect the final critical habitat designation to
impose substantial additional burdens on land use or substantially
affect property values. Additionally, the final critical habitat
designation does not preclude the development of Habitat Conservation
Plans and issuance of incidental take permits for non-Federal actions.
Owners of areas included within the proposed critical habitat
designation would continue to have the opportunity to use their
property in ways consistent with the survival of listed leatherback sea
turtles.
Government to Government Relationships With Tribes
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal Government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States toward Indian Tribes and the
application of fiduciary standards of due care with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights.
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, outlines the responsibilities of the Federal Government in
matters affecting tribal interests. If NMFS issues a regulation with
tribal implications (defined as having a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal
[[Page 334]]
Government and Indian tribes) we must consult with those governments or
the Federal Government must provide funds necessary to pay direct
compliance costs incurred by tribal governments. The proposed critical
habitat designation does not have tribal implications. The proposed
critical habitat designation excludes tribal lands (see Exclusions for
Indian Lands section above) and does not affect tribal trust resources
or the exercise of tribal rights.
Energy Effects
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects when undertaking a ``significant energy action.''
According to Executive Order 13211, ``significant energy action'' means
any action by an agency that is expected to lead to the promulgation of
a final rule or regulation that is a significant regulatory action
under Executive Order 12866 and is likely to have a significant adverse
effect on the supply, distribution, or use of energy. We have
considered the potential impacts of this action on the supply,
distribution, or use of energy (see economic report). Activities
associated with the supply, distribution, or use of energy that may be
affected by the critical habitat designation include the operation of:
(1) Power plants; (2) proposed and potential tidal, wave and wind
energy projects; (3) LNG projects.
The economic analysis identified seven power plants that may be
affected by the potential critical habitat designation. Future
management and required project modifications for leatherback critical
habitat related to power plants under ESA Section 7 consultation
include: Cooling of thermal effluent before release to the environment;
treatment of any contaminated waste materials; and modifications
associated with permits issued under NPDES. All of the power plants are
located on the California coast and are subject to existing regulations
through the NRC and California Energy Commission.
The economic analysis identified twelve tidal/wave energy projects
that may be affected by the potential critical habitat designation.
Eight of these energy projects have received preliminary permits from
the FERC and four of the projects have pending applications. Given the
necessary timeframes for project construction, it may be reasonable to
assume that this set of projects will incur project modification costs
related to leatherback critical habitat within the next 20 years.
However, it should also be noted that other new permit applications are
likely to be filed in the future, and that rate of application may be
increasing. We seek comment on the likely number of projects within the
timeframe of this analysis (see ADDRESSES). Relevant information
received will inform our final analysis of energy effects.
Given that these projects are in their preliminary stages, it is
not clear what effects the projects will have on habitats and natural
resources, nor what effects a critical habitat designation would have
on these projects. The exact nature of habitat impacts is difficult to
predict; however, possible impacts to features of the potential
leatherback critical habitat include obstruction of passage or
migration and disturbance to prey species during their benthic, polyp
stage. It is unknown whether the passage PCE could also be affected by
the electromagnetic fields generated by these types of projects.
The economic analysis identified seven LNG projects that may be
affected by potential leatherback critical habitat. FERC regulates LNG
projects. There are three proposed LNG projects and four potential LNG
projects within the analyzed areas. Like the alternative energy
projects, there is a high degree of uncertainty regarding whether these
proposed projects will be implemented. As a result, it is unclear at
this time what effects a critical habitat designation would have on
these proposed LNG projects; however, using available information,
project modifications may include: biological monitoring; spatial
restrictions on project installation; and specific measures to respond
to catastrophes. We seek information on the nature and extent of likely
modifications from LNG projects resulting from the designation of
leatherback critical habitat (see ADDRESSES). Relevant information
received will inform our final analysis.
We have determined that the energy effects of this proposed rule
are unlikely to exceed the energy impact thresholds identified in
Executive Order 13211 and that this proposed rulemaking is, therefore,
not a significant energy action (see economic report).
References Cited
A complete list of all references cited in this rule making can be
found on our Web site at http://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, and is available upon request from the NMFS
(see ADDRESSES).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: December 30, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, we propose to amend 50 CFR
part 226 to read as follows:
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
2. Revise Sec. 226.207, to read as follows:
Sec. 226.207 Critical habitat for leatherback turtles (Dermochelys
coriacea).
Critical habitat is designated for leatherback turtles as described
in this section. The textual descriptions of critical habitat in this
section are the definitive source for determining the critical habitat
boundaries. The overview maps are provided for general guidance
purposes only and not as a definitive source for determining critical
habitat boundaries.
(a) The waters adjacent to Sandy Point, St. Croix, U.S. Virgin
Islands, up to and inclusive of the waters from the hundred fathom
curve shoreward to the level of mean high tide with boundaries at
17[deg]42'12'' N. and 64[deg]50'00'' W.
(b) All U.S. coastal marine waters within the areas in paragraphs
(b)(1) and (2) of this section and as described in paragraphs (b)(3)
and (4) of this section and depicted in paragraph (b)(5) of this
section:
(1) California.
(i) The area bounded by Point Sur (36[deg]18'22'' N./121[deg]54'9''
W.) then north along the shoreline following the line of mean lower low
water to Point Arena, California (38[deg]57'14'' N./123[deg]44'26'' W.)
then west to 38[deg]57'14'' N./123[deg]56'44'' W. then south along the
200 meter isobath to 36[deg]18'22'' N./122[deg]4'13'' W. then east to
the point of origin at Point Sur.
(ii) Nearshore area from Point Arena, California, to Point Vicente,
California (35[deg]44'30'' N./118[deg]24'44'' W.), exclusive of Area 1
(see above) and offshore to a line connecting 38[deg]57'14'' N./
126[deg]22'55'' W. and 33[deg]44'30'' N./121[deg]53'41'' W.
(2) Oregon/Washington. The area bounded by Winchester Bay, Oregon
(43[deg]39'58'' N./124[deg]13'06'' W.) north along the shoreline
following the line of mean lower low water to Cape Flattery, Washington
(48[deg]23'10'' N./124[deg]43'32'' W.) then north to the U.S./Canada
boundary at 48[deg]29'38'' N./124[deg]43'32'' W. then west and south
along the line of the U.S. Exclusive Economic Zone to 47[deg]57'38''
N./126[deg]22'54'' W. then south along a line approximating the 2,000
[[Page 335]]
meter isobath that passes through points at 47[deg]39'55'' N./
126[deg]13'28'' W., 45[deg]20'16'' N./125[deg]21' W. to 43[deg]40'8''
N./125[deg]17' W. then east to the point of origin at Winchester Bay.
(3) Critical habitat extends to a water depth of 80 meters from the
ocean surface and is delineated along the shoreline at the line of mean
lower low water, except in the case of estuaries and bays where COLREGS
lines (defined at 33 CFR part 80) shall be used as the shoreward
boundary of critical habitat.
(4) Primary Constituent Elements. The primary constituent elements
essential for conservation of leatherback turtles are:
(i) Occurrence of prey species, primarily scyphomedusae of the
order Semaeostomeae (Chrysaora, Aurelia, Phacellophora, and Cyanea) of
sufficient condition, distribution, diversity, and abundance to support
individual as well as population growth, reproduction, and development.
(ii) Migratory pathway conditions to allow for safe and timely
passage and access to/from/within high use foraging areas.
(5) A map of proposed critical habitat for leatherback sea turtles.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TP05JA10.013
[FR Doc. E9-31310 Filed 12-31-09; 11:15 am]
BILLING CODE 3510-22-C