[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Proposed Rules]
[Pages 25660-25662]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10956]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 110407235-1242-01]
RIN 0648-XA349
Endangered and Threatened Wildlife; Notice of 90-Day Finding on a
Petition to Revise Critical Habitat for the Endangered Leatherback Sea
Turtle Under the Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Notice of 90-day petition finding.
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SUMMARY: We, NMFS, announce a 90-day finding on a petition to revise
critical habitat for the endangered
[[Page 25661]]
leatherback sea turtle under the Endangered Species Act (ESA). We find
that the petition presents substantial scientific information
indicating that the petitioned action may be warranted for leatherback
sea turtles and their habitat under our jurisdiction.
FOR FURTHER INFORMATION CONTACT: Dennis Klemm, NMFS, Southeast Regional
Office, Protected Resources Division, dennis.klemm@noaa.gov, (727) 824-
5312; or Lisa Manning, NMFS, Office of Protected Resources,
marta.nammack@noaa.gov, (301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
On November 3, 2010, we received a petition, dated November 2,
2010, from the Sierra Club asking NMFS and the United States Fish and
Wildlife Service (USFWS) to revise, pursuant to the ESA, critical
habitat for the endangered leatherback sea turtle. The November 3,
2010, petition is the second petition submitted by the Sierra Club; the
first petition submitted by the Sierra Club, dated February 22, 2010,
was found not to present substantial scientific information indicating
the petitioned revision may be warranted (75 FR 41436, July 16, 2010).
Under the ESA, NMFS, and USFWS each have respective areas of
jurisdiction over sea turtles, as clarified by the 1977 ``Memorandum of
Understanding Defining the Roles of the U.S. Fish and Wildlife Service
and the National Marine Fisheries Service in Joint Administration of
the Endangered Species Act of 1973 as to Marine Turtles.'' NMFS has
jurisdiction over sea turtles and their associated habitats in the
marine environment, while USFWS has jurisdiction when sea turtles are
on land. Thus, if Federal agencies are involved in activities that may
affect sea turtles involved in nesting behavior, or their nests or
their nesting habitats, those Federal agencies are required to consult
with the USFWS under section 7 of the ESA to ensure that their
activities are not likely to jeopardize the continued existence of the
sea turtles. If a Federal action may affect sea turtles while they are
in the marine environment, feeding and migrating for example, the
Federal agency involved must engage in section 7 consultation with
NMFS, to ensure that the action is not likely to jeopardize the
continued existence of the sea turtles. Similarly, if critical habitat
has been designated, and Federal actions may affect such habitat, an
ESA section 7 consultation would be required to ensure that the Federal
action is not likely to destroy or adversely modify the critical
habitat. If the habitat has been designated on land the consultation
would be with USFWS, and if the habitat has been designated in the
marine environment, the consultation would be with NMFS.
The petitioner requests that we designate critical habitat for
leatherback turtles in the waters off the coastline of the Northeast
Ecological Corridor of Puerto Rico,\1\ sufficient to protect
leatherback turtles using the Northeast Ecological Corridor, and
extending at least to the hundred fathom contour, or 9 nautical miles
offshore, whichever is further, and including the existing marine
extensions of the Espiritu Santo, Cabezas de San Juan, and Arreceifes
de la Cordillera Nature Reserves. This portion of the petitioned
critical habitat, which falls under NMFS' jurisdiction, is described by
the petitioner as having three primary constituent elements: (1)
``Migratory pathway conditions to allow for safe and timely passage and
access to/from/within nesting sites at San Miguel, Paulinas, and
Convento Beaches in the Northeast Ecological Corridor of Puerto Rico;''
(2) ``Migratory pathway conditions and open ocean conditions to allow
for safe and timely passage and access to/from/within breeding sites
offshore of the nesting sites at San Miguel, Paulinas, and Convento
Beaches in the Northeast Ecological Corridor of Puerto Rico;'' and (3)
``Water quality to support normal growth, reproduction, development,
viability, and health.'' The petitioner defined the minimum requested
boundaries of the critical habitat by the following coordinates:
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\1\ The Northeast Ecological Corridor is an over 3,000 acre
coastal area along Puerto Rico's northeastern shoreline that
encompasses nearshore marine habitats as well as forests, wetlands,
and one of the most important nesting beaches for leatherback
turtles within the United States.
65.807[deg] W, 18.425[deg] N;
65.697[deg] W, 18.601[deg] N;
65.489[deg] W, 18.581[deg] N;
65.435[deg] W, 18.400[deg] N;
65.631[deg] W, 18.276[deg] N.
As argued in Sierra Club's first petition dated February 22, 2010,
this petition asserts, that the beaches of the Northeast Ecological
Corridor of Puerto Rico, which fall under USFWS' jurisdiction, are
``centrally important to the U.S. Caribbean leatherback population, and
should be designated as critical habitat,'' and that the near-shore
coastal waters off those beaches, which fall under NMFS' jurisdiction,
``provide room for turtles to mate and access the beaches, and for
hatchlings and adults to leave the beaches.'' The petition also asserts
that the coastal zone within the Northeast Ecological Corridor is
particularly vulnerable to pressure from development and to the growing
impacts of climate change, and so warrants protection as critical
habitat. Additional information and details were provided in the
Petition to Supplement associated with the Sierra Club's February 22,
2010, petition, which was incorporated by reference.
ESA Statutory Provisions and Policy Considerations
Section 4(b)(3)(D) of the ESA of 1973, as amended (16 U.S.C. 1533
et seq.), requires, to the maximum extent practicable, that within 90
days of receiving a petition to revise a critical habitat designation,
the Secretary of Commerce (Secretary) make a finding as to whether the
petition presents substantial scientific information indicating that
the revision may be warranted. The finding is to be published promptly
in the Federal Register. The Secretary must then determine how he
intends to proceed with the requested revision within 12 months after
receiving the petition and promptly publish notice of such intention in
the Federal Register. Joint ESA-implementing regulations issued by NMFS
and the USFWS (50 CFR 424.14(b)) define ``substantial information'' as
the amount of information that would lead a reasonable person to
believe that the measure proposed in the petition may be warranted. In
making this finding on a petition to revise critical habitat to include
additional areas, the Secretary must consider whether the petition
contains information indicating that areas petitioned to be added to
critical habitat contain physical and biological features essential to,
and that may require special management to provide for, the
conservation of the species involved (50 CFR 424.14(c)(2)(i)). Thus, in
reviewing a petition to revise critical habitat we consider the
information presented on the following three aspects of critical
habitat as defined in the ESA: The physical or biological features
identified, the explanation of how such features may be essential to a
species' conservation, and how those features may require special
management considerations.
Analysis of Petition
The petition asserts that the revision of leatherback critical
habitat to include the waters off the Northeast Ecological Corridor of
Puerto Rico is necessary to protect leatherback sea turtles. In
contrast to the February 22, 2010, petition, the Sierra Club's second
petition proposes three primary constituent elements and specific
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boundaries of the critical habitat, as detailed above. The petition
also supports the proposed critical habitat revision by reporting what
is known from existing accounts of leatherback mating behavior: Mating
seems to occur, at least in part, in areas adjacent to nesting beaches.
The information from satellite tagging studies of six leatherback
turtles indicates heavy use by those turtles of the area described in
the petition. The petitioner also cited the proposed Pacific
leatherback critical habitat (75 FR 319; January 5, 2010), which has
some similarities to the ``open space'' feature petitioned for
designation off Puerto Rico. The petitioner states that the second
primary constituent element cited in the proposed Pacific leatherback
critical habitat rule (i.e., migratory pathway conditions to allow for
safe and timely passage and access to/from/within high use foraging
areas) is ``for all intents and purposes, identical to the area
`sufficient to protect leatherbacks using the Northeast Ecological
Corridor' which the Sierra Club identified.'' The petition also states
that the marine environment in which the proposed critical habitat
would be designated is subject to ``substantial development and
degradation threats.'' Thus, the additional information presented in
this petition supports the required determination that the ``areas
petitioned to be added to critical habitat contain physical and
biological features essential to, and that may require special
management to provide for, the conservation of the species involved.''
50 CFR 424.14(c)(2)(i).
Petition Finding
After considering the petition, the information cited by the
petitioner, and relevant information readily available in our files, we
conclude that, with respect to areas under NMFS' jurisdiction, the
petition presents substantial scientific information indicating that
the petitioned revision of designated critical habitat for leatherback
sea turtles may be warranted.
Authority
The authority for this action is the ESA, as amended (16 U.S.C.
1533 et seq.).
Dated: April 28, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2011-10956 Filed 5-4-11; 8:45 am]
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