[Federal Register Volume 76, Number 106 (Thursday, June 2, 2011)]
[Proposed Rules]
[Pages 32026-32063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13381]
[[Page 32025]]
Vol. 76
Thursday,
No. 106
June 2, 2011
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Wildlife and Plants: Proposed Rulemaking To
Revise Critical Habitat for Hawaiian Monk Seals; Proposed Rule
Federal Register / Vol. 76 , No. 106 / Thursday, June 2, 2011 /
Proposed Rules
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 110207102-1136-01]
RIN 0648-BA81
Endangered and Threatened Wildlife and Plants: Proposed
Rulemaking To Revise Critical Habitat for Hawaiian Monk Seals
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 Hawaiian monk seal
(Monachus schauinslandi) by extending the current designation in the
Northwestern Hawaiian Islands (NWHI) out to the 500-meter (m) depth
contour and including Sand Island at Midway Islands; and by designating
six new areas in the main Hawaiian Islands (MHI), pursuant to section 4
of the Endangered Species Act (ESA). Specific areas proposed for the
MHI include terrestrial and marine habitat from 5 m inland from the
shoreline extending seaward to the 500-m depth contour around: Kaula
Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai,
Maui, and Molokai), and Hawaii (except those areas that have been
identified as not included in the designation). We propose to exclude
the following areas from designation because the national security
benefits of exclusion outweigh the benefits of inclusion, and exclusion
will not result in extinction of the species: Kingfisher Underwater
Training area in marine areas off the northeast coast of Niihau;
Pacific Missile Range Facility Main Base at Barking Sands, Kauai;
Pacific Missile Range Facility Offshore Areas in marine areas off the
western coast of Kauai; the Naval Defensive Sea Area and Puuloa
Underwater Training Range in marine areas outside Pearl Harbor, Oahu;
and the Shallow Water Minefield Sonar Training Range off the western
coast of Kahoolawe in the Maui Nui area. We solicit comments 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 on this proposed rule to designate critical habitat
must be received no later than August 31, 2011. A public hearing will
be held promptly if any person so requests by August 16, 2011. Notice
of the date, location, and time of any such hearing will be published
in the Federal Register not less than 15 days before the hearing is
held.
ADDRESSES: You may submit comments identified by 0648-BA81 by any one
of the following methods:
Electronic Submissions: Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
Mail or hand-delivery: Submit written comments to
Regulatory Branch Chief, Protected Resources Division, National Marine
Fisheries Service, Pacific Islands Regional Office, 1601 Kapiolani
Blvd., Suite 1110, Honolulu, HI, 96814, Attn.: Hawaiian monk seal
proposed critical habitat.
Instructions: Comments must be submitted to one of these two
addresses to ensure that the comments are received, documented, and
considered by NMFS. Comments sent to any other address or individual,
or received after the end of the comment period, may not be considered.
All comments received are a part of the public record and will
generally be posted to http://www.regulations.gov without change. All
Personal Identifying Information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
Confidential Business Information or otherwise sensitive or protected
information. We will accept anonymous comments (enter ``NA'' in the
required fields if you wish to remain anonymous). Attachments to
electronic comments will be accepted in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only. The petition, 90-day
finding, 12-month finding, draft biological report, draft economic
analysis report, draft 4(b)(2) report, and other reference materials
regarding this determination can be obtained via the NMFS Pacific
Islands Regional Office Web site: http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html or by submitting a request to the Regulatory
Branch Chief, Protected Resources Division, National Marine Fisheries
Service, Pacific Islands Regional Office, 1601 Kapiolani Blvd., Suite
1110, Honolulu, HI 96814, Attn: Hawaiian monk seal proposed critical
habitat. Background documents on the biology of the Hawaiian monk seal,
the July 2, 2008, petition requesting revision of its critical habitat,
and documents explaining the critical habitat designation process, can
be downloaded from http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html, or requested by phone or e-mail from the NMFS staff in
Honolulu (area code 808) listed under FOR FURTHER INFORMATION CONTACT.
The October 3, 2008, 90-day finding (73 FR 57583), the public comments
received on the 90-day finding, and the June 12, 2009, 12-month finding
(74 FR 27988), can be viewed at http://www.regulations.gov by searching
for docket number ``NOAA-NMFS-2008-0290''.
FOR FURTHER INFORMATION CONTACT: Jean Higgins, NMFS, Pacific Islands
Regional Office, (808) 944-2157; Lance Smith, NMFS, Pacific Islands
Regional Office, (808) 944-2258; or Marta Nammack, NMFS, Office of
Protected Resources (301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
The Hawaiian monk seal (Monachus schauinslandi) was listed as
endangered throughout its range under the ESA in 1976 (41 FR 51611;
November 23, 1976). In 1986, critical habitat for the Hawaiian monk
seal was designated at all beach areas, sand spits and islets,
including all beach crest vegetation to its deepest extent inland,
lagoon waters, inner reef waters, and ocean waters out to a depth of 10
fathoms (18.3 m) around Kure Atoll, Midway Islands (except Sand
Island), Pearl and Hermes Reef, Lisianski Island, Laysan Island,
Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa
Island in the NWHI (51 FR 16047; April 30, 1986). In 1988, critical
habitat was expanded to include Maro Reef and waters around previously
designated areas out to the 20 fathom (36.6 m) isobath (53 FR 18988;
May 26, 1988).
On July 9, 2008, we received a petition dated July 2, 2008, from
the Center for Biological Diversity, Kahea, and the Ocean Conservancy
(Petitioners) to revise the Hawaiian monk seal critical habitat
designation (Center for Biological Diversity, 2008) under the ESA. The
Petitioners sought to revise critical habitat by adding the following
areas in the MHI: key beach areas; sand spits and islets, including all
beach crest vegetation to its deepest extent inland; lagoon waters;
inner reef waters; and ocean waters out to a depth of 200 m. In
addition, the Petitioners requested that designated critical habitat in
the NWHI be extended to include Sand Island at Midway, as well as ocean
waters out to a depth of 500 m (Center for Biological Diversity, 2008).
[[Page 32027]]
On October 3, 2008, we announced in our 90-day finding that the
petition presented substantial scientific information indicating that a
revision to the current critical habitat designation may be warranted
(73 FR 57583; October 3, 2008). On June 12, 2009, in the 12-month
finding, we announced that a revision to critical habitat is warranted
because of new information available regarding habitat use by the
Hawaiian monk seal, and we announced our intention to proceed toward a
proposed rule (74 FR 27988; June 12, 2009). Additionally, in the 12-
month finding we identified the range of the species as throughout the
Hawaiian Archipelago and Johnston Atoll (74 FR 27988; June 12, 2009).
Although petitioned to designate areas identified by specific
boundaries or concepts (i.e., ``key'' areas), we evaluated habitat
needs for the species, including all areas within the identified range
to best realize the conservation goals and needs of the species. This
proposed rule describes the proposed critical habitat designation,
including supporting information on Hawaiian monk seal biology,
distribution, and habitat use, and the methods used to develop the
proposed designation.
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. We have 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 was excluded from the designation) outweigh the benefits of
designation (i.e., the conservation benefits to the Hawaiian monk seal
if an area was designated), so long as exclusion of the area will not
result in extinction of the species. This evaluation process introduces
various alternatives to the revision of designated critical habitat for
the Hawaiian monk seal, all of which we considered. The alternative of
not revising the designated critical habitat for Hawaiian monk seals
would impose no additional economic, national security, or other
relevant impacts, but would not provide any additional 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 based on
the best available science. The alternative of designating all
potential critical habitat areas (i.e., no areas excluded) also was
considered and rejected because, for several areas, the national
security benefits of exclusion outweighed the benefits of designation,
and we determined that exclusion of these areas would not significantly
impede conservation or result in extinction of the species.
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. 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 is subject to the
Secretary's discretion after the impacts have been evaluated in
accordance with section 4(b)(2) of the ESA. This evaluation was
conducted for each area and is described in detail in the draft ESA
4(b)(2) report (NMFS, 2010b). Under this preferred alternative we
propose to exclude 5 particular areas within the areas considered. We
determined that the exclusion of these areas would not significantly
impede the conservation of Hawaiian monk seals nor result in extinction
of the species. We selected this as the preferred alternative because
it results in a critical habitat designation that provides for the
conservation of the Hawaiian monk seal while reducing the national
security impacts. This alternative also meets ESA and joint NMFS and
U.S. Fish and Wildlife Service (USFWS) regulations concerning critical
habitat at 50 CFR part 424.
Hawaiian Monk Seal Natural History and Ecology
In the following sections, we describe the natural history of the
Hawaiian monk seal as it relates to the habitat needs of the species.
Hawaiian monk seals are members of the Phocidae family, also known as
the true seals, which are characterized by a lack of external ear and
an inability to draw the hind-flippers under the body for movement on
land. The Hawaiian monk seal falls within the primitive genus Monachus.
Only two other species of seal occur in this genus, the recently
extinct Caribbean monk seal (M. tropicalis) and the critically
endangered Mediterranean monk seal (M. monachus). These three monk seal
species were widely dispersed geographically (i.e., in the Hawaiian
Archipelago, the Caribbean, and the Mediterranean), and disagreement
remains regarding the historical biogeography of the monachine seals'
origin and dispersal (Repenning and Ray, 1977; Fyler et al., 2005;
Arnason et al., 2006). Regardless of the debate over geographic origin
or chronology, the closure of the Central American Seaway would
indicate that Hawaiian monk seals were separated from the Caribbean
species at least 3 million years ago (mya) (Fyler et al., 2005). At
this time period geologically, Hawaiian monk seals would have been able
to exploit habitat in the NWHI as well as utilize some habitat in the
MHI, including Kauai and Niihau, which were forming as early as 5 and
4.9 mya, respectively (Juvik and Juvik, 1998).
Hawaiian monk seals are wide-ranging, air-breathing aquatic
carnivores that spend a majority of their time in the ocean, but
continue to rely on terrestrial habitat. Monk seals utilize aquatic
habitat for foraging, socializing, mating, resting, and traveling.
Adept at propulsion in the water, individual monk seals may travel
hundreds of miles in a few days (Littnan et al., 2006) and dive to more
than 500 m (1,600 ft) (Parrish et al., 2002). Although a majority of
its time is spent in the water, like many other pinnipeds, the Hawaiian
monk seal utilizes terrestrial habitat to rest, avoid predators, molt,
pup (give birth), and nurse. In contrast to commonly recognized
pinnipeds such as sea lions, walrus, and harbor seals, which often haul
out in groups of larger numbers, the Hawaiian monk seal is considered
solitary, often hauling out individually. The solitary nature extends
both on land and in the water; however, monk seals may congregate in
small numbers (e.g., males may haul out with and guard females, or
several animals may be found hauled out in relative proximity to one
another) in favorable haul-out areas (Antonelis et al., 2006).
Adult monk seals reach a length of 2.3 m (7.5 ft) and weigh up to
273 kg (600 lb). On average the adult males are smaller in size than
females (NMFS, 2007a). It is thought that Hawaiian monk seals have a
lifespan of up to 30 years in the wild (NMFS, 2007a). Females reach
breeding age at about 5 to 11 years of age (NMFS, 2010d) depending on
their condition. Little is known regarding the sexual maturation of
males of the species, but behavior and size suggest similar maturation
rates to that of the females (Antonelis et al., 2006). Mating occurs at
sea, and gestation is thought to be approximately 11 months. Females
typically will haul out on land near the birth site and give birth to a
single pup (Johanos et al., 1994). Monk seal births are most common
between February and August, but births have been documented at all
times of the year (NMFS, 2007a). Upon birth the female will nurse the
pup for
[[Page 32028]]
approximately 6 weeks; throughout this time period the mother remains
with the pup usually fasting and decreasing in mass (Kenyon and Rice,
1959). The nursing period concludes with an abrupt weaning when the
mother returns to the marine environment to forage, leaving the pup on
its own (Johanos et al., 1994). Females will mate about 3-4 weeks after
weaning her pup, and 5-6 weeks after mating she will haul out to molt
(NMFS, 2007a). The weaned pups are left to teach themselves to
successfully forage. While their foraging skills develop, they depend
on fat stores built up during the nursing period, resulting in
considerable weight loss (NMFS, 2007a). Juveniles (up to 3 years old)
are typically longer but thinner than recently-weaned pups, and
juveniles in the NWHI typically do not regain their post-weaning weight
until approximately 2 years of age (Johanos et al., 1994).
Adult seals appear silvery white ventrally with dark silvery tinged
brown or slate gray pelage (fur) dorsally, and as the hair ages, the
ventral pelage takes on a yellow tinge while the dorsal pelage may
appear dull brown or darker (Kenyon and Rice, 1959). When monk seals
stay at sea for an extensive period, they may develop a red or green
tinge from algal growth on their pelage (Kenyon and Rice, 1959). Monk
seals undergo an annual molt, which is termed a catastrophic molt
because the entire layer of pelage (skin and hair) is shed, leaving a
new silvery grey coat underneath. During their annual molt, Hawaiian
monk seals may haul out on land, staying ashore 10-14 days or more
(NMFS, 2007a). At birth, pelage is black and may occasionally be marked
with small white patches, referred to as natural bleaches (Kenyon and
Rice, 1959). The black pelage is lost during the postnatal molt, which
occurs around the time of weaning.
Range
In the 12-month finding (74 FR 27988; June 12, 2009), we identified
the range of the Hawaiian monk seal to include habitat throughout the
Hawaiian Archipelago and Johnston Atoll. This determination was based
on pupping (birth) and sighting data from the Hawaiian Archipelago
collected by the NMFS Pacific Islands Fisheries Science Center (PIFSC),
Protected Species Division (PSD). Verified past accounts from Johnston
Atoll were used to determine that the Atoll may be considered as part
of the geographical area occupied by the species (NMFS, 2001).
Unconfirmed sightings of Hawaiian monk seals from Palmyra Atoll (1,800
km south of NWHI); Wake Island (2,000 km southwest of NWHI); Bikini
Atoll and Mejit Island in the Marshall Islands (2,400 km southwest of
NWHI) (NMFS, 2010c) were recognized, but substantial evidence was not
found to incorporate these areas into the species' range. In discussing
the range of the species, we also acknowledged that animals have been
historically relocated to manage serious threats to the population or
individual animals. Relocations include: 21 males from the NWHI to the
MHI, three females from the MHI to the NWHI, 11 males from the NWHI to
Johnston Atoll, and 1 male from the MHI to Johnston Atoll. Female
Hawaiian monk seals have not been relocated to the MHI.
Population Status and Trends
The current Hawaiian monk seal population is estimated at 1,161
individuals (NMFS, 2009). The estimate includes the sum of estimated
abundances at the six main NWHI breeding subpopulation sites, an
extrapolation of counts at Necker and Nihoa Islands, and an estimate of
minimum abundance in the MHI (NMFS, 2009). Minimum population estimates
for 2008 based on the number of seals identified from the six main NWHI
subpopulations was 913 seals, and for the MHI, 113 seals (NMFS, 2009).
Additional information regarding the methods used to determine
estimates may be found in the NMFS annual stock assessment reports. The
breeding subpopulations identified are geographically separated, but
re-sights of identified animals indicate seal movement among the NWHI,
among the MHI, and, on rare occurrence, from the NWHI to the MHI
(Littnan et al., 2006; NMFS, 2009). The complete history of Hawaiian
monk seal population status and trends is unknown; however, data and
historical accounts do indicate impacts to population trends from human
exploitation and disturbance. The following is a review of pertinent
information and trends with regard to population status.
The first beach counts of Hawaiian monk seals in the NWHI occurred
in the late 1950s, but prior to that time period human-influenced
declines in population can be inferred from historical accounts. The
first written accounts during Lisianski's exploration in the 1800s
indicated seals of the NWHI being exploited for oil, pelts, or food
(Ragen, 1993). Reports from the end of the same century highlight the
impact of early human exploitation on the seal population, with
accounts of no seals being seen on extended visits to Midway and
Laysan, areas where numerous seal sightings were indicated in the past
(Ragen, 1999). Following the period of exploitation in the 1800s, areas
in the NWHI were settled for entrepreneurial and military reasons.
Descriptions of seal sightings at this time indicate behavioral
changes, including seals showing a habitat preference for sites less
accessible to human inhabitants (Ragen, 1999). Starting in the late
1950s, counts were made at the islands almost every year, with a high
count of 1,206 seals recorded in the spring of 1958 (NMFS, 1983).
Although these counts do not provide a total population estimate
(because the proportion of the total included in the count was not
determined), the beach counts do demonstrate a decline between the late
1950s and mid-to-late 1970s. Counts in the 1970s ranged from 500-600
seals, less than half the high counts from the late 1950s (NMFS, 1983).
This decrease was most evident in the western portions of the range and
has been associated with human disturbance related to military
settlement (Kenyon and Rice, 1959; Ragen, 1993). Military activities
and presence eventually ceased at these sites, and the islands have
been managed as a refuge; in 2006 the islands and surrounding waters
were incorporated into the Northwestern Hawaiian Islands Marine
National Monument, now renamed Papahanaumokuakea Marine National
Monument. Periods of decline and stability have been documented since
the area has been managed as a refuge, with the most recent period of
decline beginning in 2001 (NMFS, 2007a). In 2008, beach counts of
juveniles and adults (i.e., all seals except pups) were 68 percent
lower than those of the late 1950s (NMFS, 2009). Total abundance at the
six primary NWHI sites (French Frigate Shoals, Laysan, Lisianski, Pearl
and Hermes, Midway, and Kure) is declining at a rate of about 4.5
percent per year (NMFS, 2009). While the earlier declines are marked by
human exploitation and disturbance, the current declines in the NWHI
may be driven by food limitations and other sources of mortality, which
disproportionally impact juvenile seal survival and consequently reduce
recruitment into breeding age classes. With fewer adults of breeding
age, the current age structures of the NWHI subpopulations indicate
that declines are likely to continue for at least the next decade
(Baker et al., 2010). A detailed account of the Hawaiian monk seal
population status and trends in the NWHI is provided in the recovery
plan (NMFS, 2007a).
[[Page 32029]]
It is generally accepted that Hawaiian monk seals are native to the
islands of the northwest, as discussed earlier; however, conflicting
views remain regarding Hawaiian monk seal historical use of the MHI.
The lack of seal references in the Hawaiian oral tradition has led some
to believe that Hawaiian monk seal use of this region is a recent
phenomenon. However, fossil remains of seal bones discovered at an
archeological site from the Island of Hawaii dating from 1,400-1,760
years ago (Rosendahl, 1994) has led support to an alternate view
suggesting that Hawaiian monk seals may have been forced to peripheral
habitat by exploitation or disturbance during early Polynesian
settlement (Ragen, 1993; Baker, 2004; Baker and Johanos, 2004).
Anecdotal evidence, including the Polynesian extirpation of other avian
species during early settlement (Olson and James, 1982; Diamond et al.,
1989), the availability of coastal habitat (Juvik and Juvik, 1998), and
the monk seal presence in the Pacific basin well before the Polynesian
settlement, lends additional credence to this theory (Olson and James,
1982; Diamond et al., 1989; Juvik and Juvik, 1998; Athens et al., 2002;
Kirch et al., 2004; Fyler et al., 2005). Thus, Polynesian settlement of
the MHI may have driven Hawaiian monk seals to the NWHI, where human
settlements were limited by the availability of fresh water (Ragen,
1999; Baker and Johanos, 2004). In summary, this view presents the
current growth and dispersal of the Hawaiian monk seal population in
the MHI as a re-colonization event.
More recent MHI history provides the historical accounts of seal
sightings indicating the occasional presence of seals, including
sightings from as early as 1900 and later accounts spanning into the
1950s throughout the MHI (Bailey, 1952; Kenyon and Rice, 1959). Niihau
residents reported that seals appeared regularly after 1970 (Baker and
Johanos, 2004), and NMFS PIFSC's records from 1980-1986 reveal 125 seal
sightings recorded throughout the MHI (NMFS, 2010e). These sightings do
not represent a discrete number of seals, because the sightings are
incidental and seal identification is unknown; however, it does reveal
the presence of seals throughout the islands in the early 1980s prior
to the first critical habitat designation. By as early as 1994, a small
naturally-occurring population of male and female monk seals was
present in the MHI. Since the mid-1990s, an increasing number of
documented sightings and annual births of monk seal pups have occurred
in the MHI. Estimates using systematic surveys or sightings of uniquely
identified individuals within the MHI indicate an increase in numbers
as demonstrated by the following estimates: 45 individuals reported in
2000, 77 individuals in 2005, and 113 individuals in 2008 (NMFS, 2007b;
NMFS, 2009). The growth in numbers in the MHI is not likely to be a
consequence of increased migration from the NWHI, since only 5 seals
have been documented to have migrated from the NWHI to the MHI since
the 1980s when regular tagging efforts began (Baker et al., 2010). It
is likely that seals in the MHI are growing in numbers due to the
increase in births and have been dispersing from under-documented areas
(such as Niihau) to the rest of the chain (Baker and Johanos, 2004).
Northwestern Hawaiian Islands vs. Main Hawaiian Islands
There is no genetic evidence suggesting monk seals occurring in any
part of the archipelago are genetically distinct from monk seals
elsewhere in the range (Schultz et al., 2009); thus, the Hawaiian monk
seal consists of one population distributed throughout the Hawaiian
Archipelago. While the population is not genetically distinct in the
NWHI and MHI, differences between Hawaiian monk seal population status,
habitat, research efforts, and threats to the seals utilizing these two
regions support a separate approach to management and conservation
efforts (Baker et al., 2010). The following discussion summarizes some
of the differences identified between the two management areas and
refers to the seals in these geographic areas as separate populations
due to these differences.
Recruitment trends differ between the NWHI and MHI. In the NWHI,
many of the reproductive subpopulations are experiencing a decline in
breeding subpopulations that is attributed primarily to food limitation
(NMFS, 2007a). The impacts resulting from food limitation are most
strongly expressed in poor juvenile condition and survival, and low
age-specific reproductive rates (delayed maturity) (Antonelis et al.,
2006; NMFS, 2007a). High juvenile mortality rates result in fewer
females achieving reproductive maturity, thereby causing an imbalanced
age structure, which in turn contributes to the continued decline. In
contrast, the MHI portion of the population is increasing. This is
evident by the growing number of identified individuals and number of
pups born annually (Baker and Johanos, 2004). In addition to the
difference in population growth, monk seals in the MHI appear to be in
better physical condition than those in the NWHI. In general, MHI
females begin reproducing at a younger age, and attain higher birth
rates than females in the NWHI (Baker et al., 2010). In 2008, a 4 year
old MHI female became the youngest documented Hawaiian monk seal of
known age to pup (NMFS, 2010f). The successfully reproducing females of
the MHI are also producing robust pups. Measurements from axillary
girths and standard lengths of weaned pups from the MHI were
significantly greater in comparison to the same measurements from
weaned pups from the NWHI, which are thought to have better foraging
conditions for the mothers in the MHI (Baker and Johanos, 2004; Baker
et al., 2006). Additionally, the estimated survival from weaning to age
1 is 77 percent in the MHI, which is much higher than the 42-57 percent
survival estimated for breeding subpopulations in the NWHI. This
disparity in population status between the two regions is well
reflected in recent efforts to estimate population growth and decline
of monk seals in the separate areas. If demographic trends continued at
the current rates, the MHI and NWHI portions of the population would
equalize in 15 years (Baker et al., 2010).
Factors influencing foraging success may explain the disparity
between the two regions. These factors can be attributed to an inequity
in ecological competition on several levels. First, low numbers of monk
seals in the MHI may point to a greater per capita availability of prey
than in the NWHI (Baker and Johanos, 2004). Specifically, the lower
number of seals in the MHI across a large expanse of available foraging
habitat allows for less intra-specific competition for food resources.
Secondly, the NWHI is located within the Papahanaumokuakea Marine
National Monument, one of the largest and best-protected marine areas
in the world, where commercial fishing efforts have been minimized in
past years and recently completely ceased. The protected ecosystem of
the NWHI, in comparison to the MHI, has a greater number of large
predators. The sharks, jacks, and other demersal fish that have been
observed to compete directly with monk seals in the NWHI are much less
abundant in the MHI. In other words, inter-specific competition is
likely lower in the MHI (Baker and Johanos, 2004; Parrish, 2008).
Additionally, competition between humans and monk seals may be limited
in the MHI because seals prefer small (usually less than 20 cm, or 8
in) eels, wrasses, and other benthic species not commonly sought
[[Page 32030]]
by fishermen (Parrish et al., 2000). All of these factors appear to
positively influence the population status of monk seals in the MHI at
this time, but these favorable dynamics may shift as the population
grows in the MHI.
Additional differences between the two regions are further
reflected in the threats to the species, and, consequently, in the
management priorities and activities for each population, which are
discussed in detail in the Hawaiian Monk Seal Recovery Plan (NMFS,
2007a). One of the threats discussed includes that of habitat loss
(NMFS, 2007a). The low-lying islets and islands of the NWHI are
particularly susceptible to sea level rise, an impact that results from
several factors associated with climate change, including thermal
expansion of the warming oceans and melting of glaciers and ice caps
(Baker et al., 2006). In the 20th century sea levels rose 15 cm, and
increases are expected to continue (Baker et al., 2006). As a result of
sea level rise, important pupping and haul-out habitat may be lost
(Baker et al., 2006). While the threat of sea level rise may be
accelerated by anthropogenic forces, human activities which influence
this threat are considered to be of a complex global scale. Management
efforts in the NWHI area would more likely focus on the preservation of
specific areas for pupping and hauling out and may include regular
monitoring for changes in elevation at the various islets and islands.
Long-term mitigation planning at specific sites may also play a role in
conserving habitat in the NWHI (Baker, 2006). In the MHI, habitat loss
is equally a threat, but in the MHI, coastal anthropogenic development
plays a pronounced role by exacerbating the threat to coastal habitat.
Like most other coastal states, Hawaii's dependence on coastal
resources has led to increased development of shorelines. In response
to natural erosion processes, urban shorelines were often hardened to
protect assets. Efforts to harden shorelines alter the natural
hydrodynamic system of waves and currents, affecting sand transport
rates that control the erosion-accretion process of beaches (Defeo et
al., 2009). Consequences of armoring vary depending on the placement of
the structure and the surrounding hydrodynamics, but have included
passive erosion on the armored beach, flanking erosion of shorelines
adjacent to engineered structures, and possibly the enhanced erosion on
protected coasts (Venter et al., 2006). On Oahu past reliance on
shoreline armoring to mitigate coastal erosion has resulted in
widespread beach narrowing and sand loss (Fletcher et al., 1997).
Current management measures in the MHI are aimed at coastal setbacks
(i.e., planning development inland from the water's edge and the threat
of erosion), but the increased demand for the use of coastal areas for
industry, recreation, and private use may put continued pressure on
developers to increase access to ``new'' beach areas. In the future,
remote beaches may be squeezed between seaward directed development and
rising sea levels, leaving no room for natural sediment dynamics (Defeo
et al., 2009). As the number of Hawaiian monk seals increases in the
MHI and development continues, available habitat for hauling out and
pupping will become increasingly important.
Direct anthropogenic threats from activities within the
Papahanaumokuakea Marine National Monument have been minimized through
management measures aimed at protecting the unique resources within the
NWHI. Despite being located in this highly protected area, the Hawaiian
monk seals continue to face threats in the NWHI that require
management. Twenty years of robust population monitoring data in the
NWHI aids in making these management decisions. Data reflecting poor
juvenile survival has focused management efforts towards positively
influencing population trajectories by increasing efforts which support
monk seal health during the fragile first years. Conversely, the MHI
population is only in the early stages of scientific monitoring
efforts, as previous research efforts were concentrated towards NWHI.
Currently, a great deal of information regarding MHI seals is received
from a growing volunteer network, and management efforts in the MHI
have been focused on threats centered on anthropogenic influences.
Growth in seal numbers in the MHI has increased human and seal
interaction, and many coastal residents and visitors are unfamiliar
with the specific needs of the species. This increased overlap in use
of coastal and marine habitat has led to fishery interactions (hookings
and entanglements), disturbance and harassment of seals, and sometimes
injuries to humans (Baker et al., 2010). Impacts from pollution and
runoff into the aquatic environment also pose health hazards to the
species in the MHI; these threats are not factors considered in the
NWHI (Littnan et al., 2006). In addition to these unintentional
anthropogenic threats, three seals were recently documented shot and
killed in the MHI.
As discussed above, differences between the NWHI and MHI portions
of the population present unique research and management challenges for
the Hawaiian monk seal. With the continued decline in numbers and the
fragile status of reproductive classes in the NWHI, the survival of the
species as a whole may become increasingly dependent on the success of
the portion of the population in the MHI along with management efforts
taken to ensure that success.
Habitat
The Hawaiian monk seal depends on aquatic environments as well as
terrestrial environments for survival. While Hawaiian monk seals spend
a majority of their time in the water, the terrestrial component of
their habitat plays a vital role throughout all life stages. Monk seals
utilize terrestrial habitat to haul out for resting, molting, pupping,
nursing and avoiding predators. Since monk seals may remain at sea for
several days or more at a time, resting on land is essential to
conserve energy. Resting commonly occurs on sandy beaches, but may also
occur on rocky shores, rock ledges, emergent reefs, and even shipwrecks
(Antonelis et al., 2006). While on shore, monk seals may take shelter
from wind and rain under shoreline vegetation. When ocean conditions
are rough, monk seals may spend a greater proportion of time resting on
land. Resting on land may be for a few hours to several days at a time
(Antonelis et al., 2006).
Terrestrial habitat is essential for pupping and nursing of pups.
Pupping and nursing areas are usually sandy beaches adjacent to shallow
protected water (Westlake and Gilmartin, 1990). Individual females
appear to favor certain pupping locations, returning to them year after
year. Pregnant females come ashore a few days before giving birth to a
pup weighing approximately 16 kg (35 lb). Pups nurse for 5 to 6 weeks
(Johanos et al., 1994) and weigh 50-100 kg (110-220 lb) at weaning.
During nursing, mother and pup remain in close proximity to each other,
and the mother is protective of her pup. Although the pup is able to
swim at birth, nursing is done on land and the mother-pup pair usually
remains on land for the first few days after the pup is born. The
mother gradually begins swimming with her pup in the shallows,
returning to the general area around the pupping site. As weaning
approaches, the mother-pup pair spends more time in the water,
venturing further away from the pupping site. After weaning, pups
typically remain in the shallows near their nursing areas for several
[[Page 32031]]
weeks before venturing into deeper foraging areas (Kenyon and Rice,
1959; Henderson, 1988). Hauling out on land is also required for
molting, when old pelage is shed. Monk seals usually remain on land
during the annual molting; the process lasts approximately 1 to 2 weeks
(Kenyon and Rice, 1959).
Hawaiian monk seals utilize the aquatic components of their
environment for thermoregulating, resting, interacting, mating, and
foraging. Observation of 24 adult male monk seals wearing animal-borne
video cameras showed that greater than 50 percent of the time spent
underwater was spent resting or interacting with other seals and that
much of these activities were spent in shallower depths (Parrish, 2000;
Parrish, 2004). Resting may also occur at sea or in shallow, submerged
caves. Little has been observed regarding monk seals' mating behavior
in the marine environment; however, gains in foraging research provide
new insight into monk seal foraging since the time of the previous
critical habitat designation.
Previous understandings of monk seal foraging assumed monk seals
were feeding on localized prey species on near shore coral reef
structures and on offshore banks surrounding the haul-out areas in the
NWHI (NMFS, 1983). Although transit and deeper diving behavior was
acknowledged in the 1983 recovery plan, little was known regarding monk
seal foraging behavior at deeper depths, and the extent and frequency
of foraging transits were not well understood. Information from
satellite transmitter studies began to transform these concepts by
regularly demonstrating seals transiting to neighboring banks (Parrish
and Littnan, 2007). Additionally, digestion studies began to illustrate
that scat found on the beach might only represent prey from close reefs
and not the seals' entire diet (Goodman-Lowe, 1998; Goodman-Lowe et
al., 1999; Parrish and Littnan, 2007). Later, Crittercam footage (or
head-mounted cameras) revealed seals ignoring reef fish in the coral
shallows in favor of foraging on deeper atoll slopes and neighboring
banks. Additionally, depth recordings from these animals demonstrated
foraging at depths greater than previously recognized (Parrish et al.,
2000; Stewart, 2006). These data combined have reshaped the knowledge
of how seals utilize their foraging habitat and where seals are
feeding.
Today monk seals are considered to be foraging generalists
consuming a wide variety of prey species. Goodman and Lowe (1998)
identified inshore, benthic, and offshore teleosts as the most
represented prey items in monk seal scat, followed by cephalopods and
crustaceans. From the 940 scats sampled, the study was able to identify
31 families of teleosts and 13 families of cephalopods (Goodman and
Lowe, 1998). Additionally, fatty acid analysis of the monk seal diet
has begun to identify an even broader number of prey species consumed
by the Hawaiian monk seal (Iverson, 2006). Fatty acid analysis studies
have also demonstrated substantial variation in diet among individuals,
demographic groups (between juveniles and adults/sub adults), and
locations (Iverson, 2006), indicating that individual monk seal
foraging preferences and capabilities play a role in selection of
foraging habitat. Recently increased resolution of regurgitation
samples has identified the remains of morid cod, which are a species
typically found at subphotic depths or depths greater than 95 m
(Longnecker et al., 2006). These dietary analyses, that indicate
individual seal foraging preferences and seals foraging at greater
depths, are consistent with seal foraging ecology studies discussed
below.
Recent studies using new advances in technology have demonstrated
that Hawaiian monk seals forage in marine habitats anywhere from a
meter to several hundred meters in depth. Time-depth recorders from
several studies revealed a large portion of effort at depths between 50
and 300 m (164-984 ft), which coincides with the bank and slope
habitats used by prey species often detailed in monk seals' diets
(Parrish 2004; Parrish and Abernathy 2006). Foraging studies by Parrish
describe these preferred foraging habitat as low-relief substrates such
as sand and talus in areas of habitat uniformity at greater depths than
previously considered for critical habitat (Parrish and Littnan, 2007;
Parrish, 2008), where adult seals are able to move large, loose talus
fragments found in the premium foraging habitat to reach the prey
hiding underneath (Parrish et al., 2000). Although these sites are
often greater distances from haul-out sites, it appears that the less
sheltered prey in the uniform habitat may make this area energetically
preferable to the seals (Parrish et al., 2000). Studies in the NWHI
(Parrish et al., 2002; Stewart, 2006) have also shown that adult monk
seals may forage at 300-500 m (1,000-1,600 ft), sometimes visiting
patches of deep corals (Parrish 2004; Parrish et al., 2002). A summary
of telemetry data from 37 male and female adults tagged throughout the
NWHI revealed that 17 seals appeared to be specializing in subphotic
foraging (Parrish 2004). This calculates out to 46% of the adults
tracked, which Parrish (2004) extrapolated out to be about a fourth of
the entire population. The use of these deeper habitats may reflect
monk seals taking advantage of readily available prey in a habitat with
decreased inter-specific competition (Parrish, 2008). The maximum depth
at which seals have been documented to forage is around 500 m (1640 ft)
(Parrish 2004); however, monk seals are almost certainly capable of
exceeding depths of 550 m and the extent of foraging depth may still be
unknown (Parrish 2004; Stewart et al. 2006).
Foraging studies with instrumented juvenile monk seals (1-3 years
old) in the NWHI illustrated foraging behavior similar to that of adult
monk seals. Feeding occurred both within shallow atoll lagoons 10-30 m
(33-98 ft) and on deep reef slopes (50-100 m/160-325 ft), usually over
sand rather than talus (Parrish et al., 2005). Video footage of
juvenile seal foraging showed seals moving along the bottom, flushing
prey with a variety of techniques, including probing the bottom with
their nose, using their mouth to squirt streams of water at the
substrate, and flipping small rocks with their heads and shoulders
(Parrish et al., 2005). While juvenile seals are able to dive to depths
similar to adults, the smaller seals likely do not yet have the size or
experience to engage in the successful large talus-foraging behavior
exhibited by adults (Parrish et al., 2005). In addition to the
preferred habitat, limited data also indicate that juvenile seals may
occasionally forage at the deeper ranges used by adults (Parrish 2004).
Although much less information is available regarding monk seals
foraging in the MHI, 11 juvenile and adult monk seals were tracked in
2005 using satellite-linked radio transmitters showing location and
summaries of dive depths. This study indicated that seals usually
remained in near shore waters within the 200 m (650 ft) isobath
(Littnan et al., 2006). Since that study, recent tracking of Hawaiian
monk seals with cell phone tags in the MHI demonstrates some diving
depths up to 489 m (1,555 ft) (NMFS, 2010g).
In general, the selection of foraging habitat by monk seals may be
influenced by many factors, including environmental conditions that
influence abundance and composition of prey assemblages; conditions
that influence prey availability and capture success such as intra-
specific and inter-specific competition; as well as individual
circumstance including size and age class, preferred prey, and
individually
[[Page 32032]]
favored foraging tactics. These variables all influence where and how
Hawaiian monk seals utilize foraging habitat within the marine
environment.
In summarizing monk seal habitat, features that support resting,
reproduction, molting, predator avoidance, and foraging are essential
for the conservation of this species. Therefore, Hawaiian monk seal
critical habitat must include terrestrial and marine areas. Terrestrial
areas include a sanctuary for hauling out for resting, molting,
pupping, nursing, and avoiding predators. Terrestrial habitat consists
of near shore or emergent surfaces where monk seals can haul out. Those
areas preferred for pupping consist of a subset of haul-out habitat and
are usually on sandy beaches adjacent to shallow marine areas. These
shallow marine areas provide protection for pups while they become
accustomed to unaccompanied life in the marine environment and begin
learning to forage on their own. The marine habitat includes areas used
for thermoregulating, resting, interacting, mating, and foraging.
Foraging habitat for Hawaiian monk seals has been demonstrated to be at
depths as great as 500 m in the NWHI. Recent declines in the Hawaiian
monk seal population point to food limitations in the NWHI, especially
for juvenile monk seals, making marine foraging areas particularly
critical components of monk seal habitat.
Critical Habitat
Section 4(b)(2) of the ESA requires us 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.'' However, the
Secretary 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.''
Once critical habitat is designated, section 7 of the ESA requires
Federal agencies to insure 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 insure 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
revision. In accordance with section 4(b)(2) of the ESA and our
implementing regulations (50 CFR Part 424), this proposed rule is based
on the best scientific information available.
To assist with the revision of Hawaiian monk seal critical habitat,
we convened a critical habitat review team (CHRT) consisting of seven
biologists from NMFS PIFSC and the Pacific Islands Regional Office
(PIRO). The CHRT members had experience and expertise in Hawaiian monk
seal biology, distribution and abundance, and management. The CHRT used
the best available scientific data and their best professional judgment
to: (1) Identify the physical and biological features essential to the
conservation of the species that may require special management
considerations or protection; (2) identify specific areas within the
occupied area containing those essential physical and biological
features; (3) evaluate the conservation value of each specific area;
and (4) identify activities that may affect any designated critical
habitat. The evaluations and conclusions are described in detail in the
following sections. We concur with these conclusions.
Physical or Biological Features Essential for Conservation
Joint NMFS-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 protections.'' 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 require the agencies to ``focus on the principal biological
or physical constituent elements within the defined area that are
essential to the conservation of the species. Known primary constituent
elements shall be listed with the critical habitat description. Primary
constituent elements may include, but are not limited to, the
following: roost sites, nesting grounds, spawning sites, feeding sites,
seasonal wetland or dryland, water quality or quantity, host species or
plant pollinator, geological formation, vegetation type, tide, and
specific soil types.'' For the purposes of this proposed rule, the
essential features are the same as primary constituent elements.
In the 12-month finding (74 FR 27988; June 12, 2009), we identified
five preliminary essential features in order to identify to the public
areas that may be under consideration for the critical habitat. For
this proposed rule, we used the best available scientific information
to modify and supplement the essential features announced in the 12-
month finding to best describe those elements or areas essential for
the conservation of the Hawaiian monk seal. The following six essential
features were identified.
(1) Areas With Characteristics Preferred by Monk Seals for Pupping and
Nursing
Hawaiian monk seals have been observed to give birth and nurse in a
variety of terrestrial coastal habitats; however, certain beaches may
be preferred for pupping at the various atolls and islands within the
range. Preferred pupping areas generally include sandy, protected
beaches located adjacent to shallow, sheltered aquatic areas (Westlake
and Gilmartin, 1990). Terrestrial pupping habitat may include various
substrates such as sand, shallow tide-pools, coral rubble, or rocky
substrates, as long as these substrates provide accessibility for seals
for hauling out. Characteristics of preferred sites may also
incorporate areas with low lying vegetation utilized by the pair for
shade or cover (Antonelis et al., 2006). Preferred coastal areas may
attract multiple mothers to the same area year after year for birthing
(Antonelis et al., 2006); however, due to
[[Page 32033]]
the solitary nature of the species, some mothers may prefer to return
to a lesser used location year after year. As discussed in the natural
history of the species, female Hawaiian monk seals nurse their pups for
approximately 6 weeks, then abruptly abandon the pup (Johanos et al.,
1994). This dramatic weaning leaves the pup independent, subsisting on
fat stores until it learns to successfully forage on its own (NMFS,
2007a). The preferred habitat for pupping and nursing provides area
necessary for normal behavior, growth, and survival through the time
period when pups are dependent on the mothers for sustenance and
protection. These areas also provide a familiar sanctuary for the
weaned pup during its transition to independence.
(2) Shallow, Sheltered Aquatic Areas Adjacent to Coastal Locations
Preferred by Monk Seals for Pupping and Nursing
Preferred pupping and nursing sites are often adjacent to shallow,
sheltered aquatic areas (Westlake and Gilmartin, 1990). These sheltered
marine areas provide protection for the mom and pup pair from predators
and extreme weather events, as well as habitat for thermoregulatory
cooling and swimming (Westlake and Gilmartin, 1990; NMFS, 2007a). Upon
weaning, the newly independent pup will utilize the sheltered marine
area to acclimate to life on its own, utilizing the habitat for
swimming, exploring, socializing, thermoregulatory cooling, and the
first attempts at foraging. Characteristics of the sheltered aquatic
sites may include reefs, tide pools, gently sloping beaches, and
shelves or coves that provide refuge from storm surges and predators.
Marine habitat adjacent to preferred pupping and nursing areas provides
area necessary for the normal behavior, growth, and survival during
early juvenile development for the Hawaiian monk seal.
(3) Marine Areas From 0 to 500 m in Depth Preferred by Juvenile and
Adult Monk Seals for Foraging
Food limitation is identified in the recovery plan as a critical
threat to the Hawaiian monk seal; therefore, foraging grounds within
the marine environment are an essential component in the recovery and
conservation of the species. As identified in the habitat section of
this report, Hawaiian monk seals forage in marine habitat anywhere from
0 to 500 m. This habitat includes barrier reefs of atolls, leeward
slopes of reefs and islands, sites along the Hawaiian Islands
Archipelago's submarine ridge, nearby seamounts, and submerged reefs
and banks (Stewart, 2006). Preferred foraging habitat of adult monk
seals is characterized by sand terraces and talus slopes that may range
in depths of 50-100 m (160-325 ft) deep around their home atoll or
island (Parrish and Littnan, 2007). These habitats provide substrate
and materials for preferred benthic and cryptic prey species to hide.
While the slopes are characterized as preferred feeding areas, recent
diving, camera, and fatty acid analysis studies demonstrate that seals
are feeding at depths greater than previously believed (300 m-500 m)
(Parrish et al., 2002; Iverson, 2006; Stewart, 2006). The use of these
deeper habitats may reflect monk seals taking advantage of readily
available prey in a habitat with decreased inter-specific competition
(Parrish, 2008). Habitat at these greater depths may be comprised of
deep water coral beds or the barren habitats prey species move between
(Parrish et al., 2002). Fatty acid analysis studies have demonstrated
substantial variation in diet among individuals, demographic groups
(between juveniles and adults/sub adults), and locations (Iverson,
2006). Thus, individual monk seal foraging preferences and capabilities
play a role in selection of foraging habitat. The steady decline of the
species (attributed mainly to food limitation) coupled with individual
foraging tactics and prey preferences, reveals a need for protection
that incorporates the features found in these foraging areas for this
species.
(4) Areas With Low Levels of Anthropogenic Disturbance
Hawaiian monk seals utilize terrestrial habitat to haul out for
resting, pupping and nursing, molting, and as a refuge from predators
(NMFS, 2007a). The high energetic demands of life in the marine
environment make resting behavior essential to the fitness of
individual animals and the overall population. Human interactions with
monk seals have the potential to cause disturbance and subsequent
abandonment of a favored haul-out site or pupping area for less
suitable locations. New locations may lack refuge characteristics,
leaving the seals more vulnerable to predation or other environmental
threats. Generally, Hawaiian monk seals seek areas that are undisturbed
by large numbers of humans or human induced interactions (such as
interactions with dogs or vehicles). Hawaiian monk seal intolerance of
human disturbance is best documented in the NWHI following human
settlement on specific islands throughout the various atolls (NMFS,
2007a). Kenyon (1972) documented changes in seal haul-out patterns at
the human settled islands at Midway Islands, French Frigate Shoals, and
Kure Atoll. Changes observed included seals avoiding human inhabited
islands during day time hours and seals hauling out on the islands or
islets less frequented by humans (Kenyon, 1972). At Kure Atoll the
population experienced depressed rates of reproduction and decreased
juvenile survival during this period of human settlement. Kenyon (1972)
related the poor juvenile survival to female adults either selecting
inferior pupping habitat prior to birth or prematurely abandoning or
weaning young, as a response to human disturbance. The preference for
less disturbed areas is also evident in monk seal selection of many of
the favored haul-out sites in the MHI, which consequently are located
in the less populated areas (Baker and Johanos, 2004).
(5) Marine Areas With Adequate Prey Quantity and Quality
Food limitation is identified in the recovery plan as a critical
threat to the Hawaiian monk seal; therefore, prey quantity and quality
within the marine foraging habitat is an essential component in the
recovery and conservation of the species. Monk seals are considered
foraging generalists, feeding on a wide variety of prey species.
Goodman and Lowe (1998) identified inshore, benthic, and offshore
teleosts as the most represented prey items in monk seal scat, followed
by cephalopods and crustaceans. From the 940 scats sampled, the study
was able to identify 31 families of teleosts and 13 families of
cephalopods (Goodman and Lowe, 1998). Additionally, fatty acid analysis
of the monk seal diet has identified a broad number of prey species
consumed by the Hawaiian monk seal (Iverson, 2006). While the broad
number of prey species makes identifying an individual prey species for
specific protections difficult, the foraging habits of seals help to
identify areas and habitat types that are regularly utilized, including
the sand terraces, talus slopes, submerged reefs and banks, nearby
seamounts, barrier reefs, slopes of reefs and islands, and deep coral
beds. Within these habitats, conditions, such as water quality,
substrate composition, and available habitat, should support growth and
recruitment of prey species to the extent that monk seal populations
are supported. Current evidence from shrinking seal subpopulations in
the NWHI indicates that prey quantity and quality are essential to
recovery, but further research is necessary to identify direct
correlations to specific threats to the
[[Page 32034]]
prey species as well as to identify appropriate management actions.
(6) Significant Areas Used by Monk Seals for Hauling Out, Resting, or
Molting
Hawaiian monk seals utilize terrestrial habitat to haul out for
resting, pupping and nursing, molting, and as a refuge from predators
(NMFS, 2007a). Energetic requirements of life in the marine environment
make resting behavior important, and, consequently, terrestrial haul-
out areas are an essential component for conservation. These haul-out
sites are generally characterized by sandy beaches, sand spits, or low
shelving reef rocks accessible to seals, but many substrates may be
used including emergent reef (Antonelis et al., 2006). Favored sites
may also reflect areas remote in nature or with low levels of human
disturbance. Although Hawaiian monk seals are considered to be a
solitary species (in comparison to other gregarious pinnipeds, such as
sea lions), they may still haul out in small numbers (Antonelis et al.,
2006) and are likely to frequent general areas utilized by other seals
due to the preferences for accessible and remote habitat.
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 and to identify specific areas within this geographically
occupied area that contain at least one of the essential features that
may require special management considerations or protection. As
discussed in the Range section above, the range of the Hawaiian monk
seal was defined in the 12-month finding on June 12, 2009 (74 FR 27988;
June 12, 2009), as throughout the Hawaiian Archipelago and on Johnston
Atoll. Using the identified range, we identified ``specific areas''
within the geographical area occupied by the species that may be
eligible for critical habitat designation under the ESA. For an
occupied area to meet the criteria of critical habitat, it must contain
specific areas with one or more of the essential features that may
require special management or protection. We identified areas that met
the criteria of critical habitat within the range of the species,
including areas in the NWHI and the MHI. Johnston Atoll was considered
for potential critical habitat, but we determined that the lack of
recent seal use, the remote nature of the atoll from the Hawaiian
Archipelago, and the hazardous conditions associated with past human
use (including contamination, erosion, and debris (communication with
USFWS staff)) rendered the features in this area inadequate for seal
conservation. Each specific area was selected to reflect current seal
use as well as anticipated habitat needs for recovery for the species.
These specific areas are identified across the range, but areas have
been grouped according to the NWHI and MHI management units to express
similarities in population status, essential features present, and the
activities that may affect the essential features such that special
management considerations or protections are needed. The draft
Biological Report (NMFS, 2010a; available via our Web site at
http:[sol][sol]www.fpir.noaa.gov/PRD/prd_critical_habitat.html, via
the Federal eRulemaking Web site at http:[sol][sol]www.regulations.gov,
or upon request (see ADDRESSES)) describes in detail the methods used
to assess the specific areas and provides the biological information
supporting the assessment. The following paragraphs provide a brief
description of the essential features in each area and additional
detail regarding the methods for delineating the specific areas.
Specific Areas in the NWHI
While identifying specific areas in the NWHI, we first considered
areas incorporated in the current (1988) designation of critical
habitat and agreed that the identified areas in the NWHI continue to
meet the definition of critical habitat under the ESA. Although omitted
from the current designation, we also identified that Sand Island at
Midway Islands provides essential features, including pupping and
nursing areas and haul-out areas for Hawaiian monk seals. The human
occupation of this island presents a need for special management and
protections; thus, Sand Island meets the criteria for critical habitat.
In considering Sand Island for the proposed designation, we recognized
that the Midway Harbor located on Sand Island did not incorporate the
essential features identified and that this area should not be included
in the designation. We determined that for all specific areas in the
NWHI, unless otherwise noted, all beach areas, sand spits and islets,
including all beach crest vegetation to its deepest extent inland,
lagoon waters, inner reef waters and ocean waters are included out to
the seaward boundary of the 500-m depth contour.
Specific Area 1: Kure Atoll's center point is defined at
28[deg]25'11.00'' N/178[deg]19'45.00'' W. Located at the northwestern
end of the archipelago, the coral atoll is comprised of the major
island, Green Island, and a few small sand spits. Kure is one of the 6
major breeding subpopulations described for the NWHI, and population
declines were described for this area in 2009 (Center, 2009). All six
essential features are present within the specific area.
Specific Area 2: Midway Islands' center point is defined at
28[deg]14'12.00'' N/177 2206.00'' W. Located at approximately 2,100 km
northwest of Honolulu, the grouping consists of three islands, Sand,
Eastern, and Spit, located within the circular-shaped atoll. Today Sand
Island supports a full time refuge staff, including residents that
support and maintain a runway, and a visitor program. Considered one of
the 6 major breeding subpopulations, the monk seal population in the
Midway Islands was reported as declining in 2009 (Center, 2009). The
specific area incorporates 88 mi\2\ (227.9 km\2\) of terrestrial and
marine habitat, and all six essential features are present within it.
Midway Harbor does not meet the definition of critical habitat. The
boundaries of Midway Harbor were delineated to incorporate the inner
harbor and hardened shorelines of the harbor. The polygon that bounds
Midway Harbor includes the area bounded by the point at the seaward
edge of the northern breakwater at the harbor entrance
(28[deg]12'44.31'' N/177[deg]21'35.64'' W) then north along the
breakwater to where the breakwater meets the coastline at
28[deg]12'54.06'' N/177[deg]21'38.69'' W then west to 28[deg]12'56.63''
N/177[deg]22'18.42'' W then south to 28[deg]12'30.88'' N/
177[deg]22'23.89'' W then east to 28[deg]12'32.68'' N/
177[deg]21'44.63'' W then north to the seaward edge of the southern
breakwater at the harbor entrance (28[deg]12'39.99'' N/
177[deg]21'38.04'' W) and a line back to meet the seaward edge of the
northern breakwater at Midway Harbor's entrance.
Specific Area 3: Pearl and Hermes Reef center point is defined at
27[deg]50'37.000'' N/175[deg]50'32.00'' W. The first land area
southeast of Midway, this coral atoll consists of numerous islets,
seven of which are above sea level. The total land area in the Atoll is
approximately 80 acres (32.4 hectares), but the surrounding reef area
is extensive. The specific area was estimated to be 242 mi\2\ (626.8
km\2\). One of the 6 major breeding subpopulations, Pearl and Hermes
Reef's monk seal population has been declining in recent years (Center,
2009); however, all six essential features are present within the
specific area.
Specific Area 4: Lisianski Island center point is defined at
26[deg]03'49.00'' N/173[deg]58'00.00'' W. The single island is
[[Page 32035]]
located at about 1,667 km northwest of Honolulu, and is a low sandy
island measuring approximately 1.8 km long and 1.0 km wide (NMFS,
1983). Though the island is small, a large reef area called Neva Shoals
is located to the southeast. One of the 6 major breeding
subpopulations, Lisianski's population has been declining in recent
years (Center, 2009). However, the island and surrounding marine waters
continue to support Hawaiian monk seals by providing all six essential
features. The specific area was estimated to be 558 mi\2\ (626.8
km\2\).
Specific Area 5: Laysan Island center point is defined at
25[deg]46'11.00'' N/171[deg]43'57.00'' W. The second largest land area
in the NWHI, the coral-sand island encloses a hyper-saline lake in the
middle of the island. The island is about 1.5 miles long (2.4 km) and 1
mile (1.6 km) wide and is partially surrounded by a fringing reef. The
island lies approximately 213 km east of Lisianski Island and supports
a small field camp. The Laysan monk seal population is the second
largest of the 6 major breeding subpopulations, and the 2009 report
concluded that the population is still in decline (Center, 2009). The
specific area including and surrounding Laysan Island was estimated to
be 294 mi\2\ (761 km2) and all six essential features are present in
this area.
Specific Area 6: Maro Reef center point is defined at
25[deg]25'27.00'' N/170[deg]35'19.00'' W. Maro Reef is the largest
coral reef in the NWHI, located on top of a seamount. The reef is a
complex maze of linear reefs that radiate out from the center and
provide foraging habitat for the Hawaiian monk seal. Additionally, this
area provides relatively undisturbed habitat with prey species present.
This specific area incorporates approximately 960 mi\2\ (2,486 km\2\)
of marine habitat.
Specific Area 7: Gardner Pinnacles center point is defined at
25[deg]0'00.00'' N/167[deg]59'55.00'' W. Gardener Pinnacles consists of
two pinnacles of volcanic rock between Maro Reef and French Frigate
Shoals. Underwater shelves surround the pinnacles, and land and the
marine habitat extending within this specific area was estimated to be
approximately 1,489 mi\2\ (3,857 km\2\). Home to a wide variety of prey
species, Gardner Pinnacles provides relatively undisturbed marine
foraging habitat and haul-out area for the Hawaiian monk seal (NMFS,
1983).
Specific Area 8: French Frigate Shoals center point is defined at
23[deg]45'31.00'' N/166[deg]14'37.00'' W. This coral atoll is open to
the west and partially enclosed by a crescent-shaped reef to the east.
It lies about midpoint in the Hawaiian Archipelago and consists of
several small sandy islets, the largest of which is Tern Island, where
a year round field staff is present. French Frigate Shoals has provided
habitat for a number of years to the largest breeding subpopulation of
Hawaiian monk seals; however, this subpopulation has also experienced a
tremendous decline in population attributed to poor juvenile survival
(Antonelis et al., 2006). This downward trend is expected to continue
due to poor recruitment into the breeding class (Antonelis et al.,
2006). This specific area was determined to be approximately 469 mi\2\
(1,215 km\2\) and all six essential features are present within the
specific area.
Specific Area 9: Necker Island center point is defined at
23[deg]34'36.00'' N/164[deg]42'01.00'' W. The island also known as
Mokumanamana is a small basalt island that is about 46 acres (19
hectares) in size. Habitat utilized by Hawaiian monk seals includes
accessible rocky benches for hauling out, and pupping has been recorded
at this site. In contrast to other areas in the NWHI, counts of
Hawaiian monk seals at Necker have indicated an increasing trend in
recent years (Center, 2009). Although the island is small in size,
marine habitat surrounding the island is large, and the specific area
was estimated to be approximately 900 mi\2\ (2,331 km\2\) including
land and marine habitat. All six essential features are present within
the specific area. This island is uninhabited, but research crews do
occasionally visit.
Specific Area 10: Nihoa Island center point is defined at
23[deg]03'23.00'' N/161[deg]55'18.99'' W. Nihoa is the easternmost
island described in the NWHI and consists of a remnant volcanic peak
with large foot cliffs, basalt rock surface, and a single beach.
Hawaiian monk seals utilize the single beach and some accessible rock
ledge areas for hauling out. The single beach is also used by multiple
mothers for pupping and nursing. Similar to Necker, beach counts at
Nihoa have indicated an increasing trend in recent years (Center,
2009). All six essential features are present within the specific area,
and the specific area is estimated to be approximately 547 mi\2\ (1,417
km\2\) incorporating all land and marine habitat.
Specific Areas in the MHI
In considering specific areas for the MHI, we recognized that data
(including birth records and sighting information) indicate that each
of the islands located within the MHI chain offers at least one of the
essential features that fit the criteria for Hawaiian monk seal
critical habitat. Additionally, human activities associated with human
use and development of coastal habitats and marine waters surrounding
these islands may require special management or protections. The
recovery needs of the species become especially important when
considering the current status of the Hawaiian monk seal in the NWHI.
The poor juvenile recruitment in the NWHI over the past decade will
contribute to continued decline in the breeding subpopulations for some
time. Thus, MHI habitat, where seals are experiencing favorable
conditions, has become vital to the survival of the species as a whole.
In considering the MHI habitat, we recognized that designating
critical habitat in the MHI based on current seals' beach preference
would fail to take into account enough area to support the growing
population or, more importantly, a recovered population. The recovered
population identified by the Recovery Plan for the Hawaiian Monk Seal
(NMFS, 2007a) set the population goal in the MHI at 500 individuals.
This number is well above the estimated 150 individuals in the MHI. We
considered that Hawaiian monk seals are unlike pinniped species that
congregate in large numbers at specific or discrete sites (e.g.,
rookeries or colonies). The species is considered solitary and wide
ranging, which results in individuals spreading out and utilizing a
large range of areas in the terrestrial and marine environment. Monk
seal habitat preferences vary greatly between individuals, and
additionally may change throughout the life span of the animal. With
this consideration in mind, the number of seals currently utilizing the
MHI is small; however, this small group occupies the entire MHI chain,
and both observation and tracking data demonstrate that seals utilize
terrestrial habitat around the perimeter of all of the islands.
While some seals may be well recognized at specific haul-out sites,
these same seals are using multiple haul-out sites around an island or
multiple islands. Seals may move around and between islands over the
course of a day, several days, weeks, or several months. Basing our
critical habitat designation on only currently recognized or favored
Hawaiian monk seal haul-out sites may only reflect individual monk seal
preference, rather than accurately characterize essential features for
survival and recovery of the species as a whole. In conjunction with
this concern is the fact that data gathered in the MHI are currently
[[Page 32036]]
dependent mostly on voluntary sighting information, and this may not
accurately depict monk seal habitat use and preferences. For example,
seals arriving in an area such as Poipu Beach, Kauai, which is
frequented by human activity, are likely to be reported; however, seals
utilizing more remote areas such as Laau Point, Molokai, having similar
habitat characteristics, are likely to go unreported. We believe that a
more expansive designation of critical habitat that includes areas
where the species is likely to be found meets the needs of this wide
ranging species and the conservation goals of the ESA. In addition to
these factors, as a coastally dependent species, the Hawaiian monk seal
will be impacted by sea level rise throughout its range. Habitat loss
at low lying atolls in the NWHI will continue, and coastal habitats in
the MHI may be impacted as well. This type of threat is not easily
managed, and only a proactive approach to habitat protection will
temper future losses and provide area for the recovery of the species.
In identifying the terrestrial boundaries for the MHI, we
recognized that terrestrial habitat in the MHI is not consistent with
the small islands of the NWHI, in that the MHI represent much larger
land masses, many of which are not accessible to the Hawaiian monk
seal. Not all terrestrial habitat in the MHI is equal in seal
accessibility and use, and portions of the MHI coastal habitat can be
considered hardened shorelines or developed areas that do not have the
essential features and would not support Hawaiian monk seal
conservation. These areas identified include boat harbors, cliffs,
active lava, and large bays with extensive runoff. These locations are
identified under each specific area as regions that are not proposed to
be designated as critical habitat. Other stretches of hardened
shoreline do exist in the MHI; these stretches are often positioned
between accessible haul-out locations, and identification of every area
would cause a piecemeal delineation. Such areas have been included in
the designation area with the understanding that terrestrial areas with
manmade structures (e.g., docks, fishponds, seawalls, piers, roads,
pipelines), and the land on which they are located, in existence prior
to the effective date of the rule are not essential to the conservation
of the species and do not meet the definition of critical habitat.
To determine the marine boundaries in the MHI, we reviewed foraging
information for the Hawaiian monk seal. Current foraging information
from the MHI indicates that foraging monk seals have a smaller range
than seals foraging in the NWHI, but recent tracking data indicate that
some seals are utilizing habitat in deeper areas (NMFS, 2010g). As
discussed earlier, in the NWHI vs. MHI section, the MHI may provide
less inter-specific as well as intra-specific competition for foraging
monk seals. As populations increase in the MHI and intra-specific
competition increases, seals will likely be forced to greater foraging
depths and ranges to meet foraging needs. Thus, foraging patterns will
begin to mimic foraging patterns of seals tracked in the NWHI. With
this consideration in mind, we identified that foraging habitat for
each specific area should be consistent with that in the NWHI to
reflect the growing needs of the population and what is known regarding
the species as a whole.
Specific areas in the MHI, identified by number below, include
terrestrial habitat 5 m inland from the shoreline, described as upper
reaches of the wash of the waves, other than storm or seismic waves, at
high tide during the season in which the highest wash of the waves
occurs, usually evidenced by the edge of vegetation growth or the upper
limit of debris, through the shoreline into the marine environment out
to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu,
Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii
(except those portions of the areas that have been identified as not
included in the designation).
Specific Area 11: Kaula Island is located 23 miles (37 km) west-
southwest of Kawaihoa Point on Niihau. The island is the second largest
offshore islet found in the MHI, after Lehua, and is the eroded result
of a tuff crater. The crater wall creates a small bay along the inside
curve, and a rock terrace or bench sits along this inner edge, ranging
in width from 3.1 m to 24 m and providing haul-out habitat for Hawaiian
monk seals. Limited access surveys from the island have demonstrated
that multiple seals use the bench area for hauling out. Surveys have
recorded as many as 15 individuals in 2006 and 6 individuals in 2009.
Near the outer side of the crater along the northwest side of the
island is a large sea cave where Hawaiian monk seals have been sighted.
The islet is surrounded by 39 mi\2\ (101 km\2\) of marine habitat that
falls within the 500-m depth contour and is located on a shoal that
supports a large variety of marine life. The U.S. Navy has
jurisdictional control over the island and the 3 nautical mile (nm)
(5.6 km) danger zone surrounding it, and uses the island for target
practice with inert ordnances. The State of Hawaii identifies the as a
State Seabird Sanctuary. No seal births have been recorded from the
limited access surveys that have been done on the island. Kaula Island
provides preferred haul-out areas, marine foraging habitat with
available prey species, and relatively undisturbed areas.
Specific Area 12: Niihau Island is located 17 miles (27 km) off the
southwest coast of Kauai. Access to Niihau is limited to Niihau
residents, the U.S. Navy, and invited guests. This specific area also
includes Lehua Island, a tuff crater located a half mile (0.8 km) north
of Niihau that provides shelves and benches for Hawaiian monk seals to
haul out. The general coastline of Niihau is approximately 90 miles
(145 km) and the specific area incorporates 200 mi\2\ (518 km\2\) of
marine habitat. Lehua is administered by the U.S. Coast Guard, and
activities are subject to Hawaii Department of Land and Natural
Resources regulations because it is a Hawaii State Seabird Sanctuary.
Hawaiian monk seals utilize the coast of Niihau for hauling out, and a
total of 24 births have been documented on the island despite limited
surveys due to restricted access. Single day aerial surveys of the
island have produced the highest count of seals recorded in the MHI,
with 47 individuals, and residents have acknowledged that seals were
regularly seen on the island since the 1970s (Baker and Johanos, 2004).
The less disturbed coastlines and marine areas surrounding the island
of Niihau provide all of the essential features for the Hawaiian monk
seal critical habitat.
Specific Area 13: Kauai is the oldest of the islands in the MHI.
The specific area incorporates 326 mi\2\ (844 km\2\) of marine habitat,
and the island has approximately 90 miles (145 km) of coastline.
Kauai's beaches and coastline are utilized by Hawaiian monk seals for
hauling out and for pupping and nursing. Although few births were
recorded on Kauai prior to 1999, since that time 40 births have been
recorded on the island. All six essential features are present within
the specific area.
Areas within this specific area that do not meet the definition of
critical habitat are defined as the following locations and are
delineated by the identified boundaries: Hanalei Bay delineated by all
terrestrial coastline areas located between the Makahoa Point
(22[deg]12'49.48'' N/159[deg]31'01.82'' W) east to 22[deg]12'56.10'' N/
159[deg]29'52.82'' W and all waters located inshore of a line drawn
between those two points; Kikiaola Harbor delineated by all terrestrial
coastline areas from 21[deg]57'34.92'' N/159[deg]41'36.36'' W east to
21[deg]57'28.89'' N/159[deg]41'34.91'' W and all
[[Page 32037]]
harbor waters located inshore of the line drawn between the seaward
edge of western breakwater at the harbor's entrance (21[deg]57'28.58''
N/159[deg]41'36.57'' W) and the seaward edge of eastern breakwater at
the harbor's entrance (21[deg]57'27.19'' N/159[deg]41'41.34'' W);
Kilauea Point Cliff area delineated by all terrestrial coastlines
located between 22[deg]13'50.27'' N/159[deg]24'07.42'' W east around to
22[deg]13'50.97'' N/159[deg]24'05.68'' W; Na Pali coast cliffs
delineated by the mouth of the Hanakapiai stream (22[deg]12'30.35'' N/
159[deg]35'53.00'' W) south west to the mouth of the Kalalau Stream
(22[deg]10'43.33'' N/159[deg]39'03.42'' W); Nawiliwili Harbor
delineated as all terrestrial coastlines between Kukii Point Light
(21[deg]57'23.80'' N/159[deg]20'52.70'' W) south to where the southern
breakwater meets the shoreline (21[deg]56'54.65'' N/159[deg]21'03.15''
W) and all waters inshore of a line drawn from Nawiliwili Harbor
Breakwater Light (21[deg]57'11.68'' N/159[deg]20'54.94'' W) east to
Kukii Point Light (21[deg]57'23.80'' N/159[deg]20'52.70'' W) (i.e., the
harbor's USCG defined COLREG line); Hanapepe Bay and Port Allen
delineated by all terrestrial coastlines between the Hanapepe Light
(21[deg]53'34.55'' N/159[deg]36'15.55'' W) east to where the Hanapepe
breakwater meets the shoreline to the east (21[deg]53'54.97'' N/
159[deg]35'14.50'' W) and all waters inshore of the line drawn from
Hanapepe Light (21[deg]53'34.55'' N/159[deg]36'15.55'' W) east to
Hanapepe Bay Breakwater (21[deg]53'49.10'' N/159[deg]35'27.25'' W)
(i.e., the harbor's USCG defined COLREG line); Waikaea Canal delineated
by all terrestrial coastline, structures and waters inshore of the line
drawn from the seaward edge of the southern breakwater at the mouth of
the canal (22[deg]04'14.7'' N/159[deg]18'58.98'' W) north to the
seaward edge of the northern breakwater at the mouth of the canal
(22[deg]04'16.41'' N/159[deg]18'58.00'' W); Wailua Canal delineated as
all coastline and waters located inshore of the bridge crossing the
Wailua River or a line drawn between 22[deg]02'41.13'' N/
159[deg]20'11.95'' W south to 22[deg]02'44.27'' N/159[deg]20'10.93'' W.
Specific Area 14: Oahu is the third largest island in the MHI
chain. The specific area incorporates 697 mi\2\ (1,805 km\2\) of marine
habitat and the island has approximately 111 miles (179 km) of general
coastline. Oahu's beaches, coastline and offshore islets are utilized
by Hawaiian monk seals for hauling out and for pupping and nursing.
Since 1991, 18 births have been recorded for the area. All six
essential features are present within the specific area.
Areas within this specific area that do not meet the definition of
critical habitat are defined as the following locations and are
delineated by the identified boundaries: Pearl Harbor to Kapua Channel
delineated by all terrestrial coastlines between Keahi point
(21[deg]18'57.95'' N/157[deg]58'42.82'' W) east to eastern edge of the
Kapua channel (21[deg]15'28.77'' N/157[deg]49'07.51'' W) and all waters
out to depth of the 3 fathoms (5.4864 m) between the line drawn from
Keahi point (21[deg]18'57.95'' N/157[deg]58'42.82'' W) to meet the 3
fathom (5.4864 m) contour following the 3-fathom (5.4864 m) contour
east to a line drawn from the eastern edge of the Kapua channel
(21[deg]15'28.77'' N/157[deg]49'07.51'' W) out to meet the 3 fathom
(5.5 m) contour; Haleiwa Harbor delineated by all terrestrial
coastlines between where the eastern breakwater meets the coastline
(21[deg]35'47.44'' N/158[deg]06'16.15'' W) west to where the western
breakwater meets the coastline (21[deg]35'42.59 N/158[deg]06'25.19'' W)
and all waters in the harbor inshore of the line drawn between
breakwater Light 6 (21[deg]35'47.63'' N/158[deg]06'22.42'' W) and the
seaward edged of the eastern breakwater (21[deg]35'47.44'' N/
158[deg]06'16.15'' W); Maunalua Bay and Hawaii Kai Harbor delineated as
all coastline and waters located inshore of the line drawn between
21[deg]16'53.22'' N/157[deg]43'21.77'' W east to the point
21[deg]15'49.13'' N/157[deg]42'41.45'' W; Kalaeloa Barbers Point
delineated as all coastline and waters located inshore of the line
drawn between the harbor's entrance channel Light 6 (21[deg]19'19.07''
N/158[deg]07'16.08'' W) north to harbor entrance channel Light 7
(21[deg]19'23.81'' N/158[deg]07'19.82'' W); Kaneohe Bay delineated as
all coastlines and waters located inshore of the line drawn from
Pyramid Rock Light (21[deg]27'44.12'' N/157[deg]45'48.69'' W) through
the center of Mokolii Island to the shoreline (21[deg]30'59.27'' N/
157[deg] 50'10.01'' W) (i.e., the bay's USCG defined COLREG line);
Waianae Small Boat harbor delineated by all coastlines between northern
point where the breakwater meets the coastline 21[deg]27'4.15'' N/
158[deg]11'54.59'' W south through to the range front light
(21[deg]26'55.57'' N/158[deg]11'46.70'' W) and all waters inside the
harbor located inshore of the line drawn between the range front light
(21[deg]26'55.57'' N/158[deg]11'46.70'' W) west to the breakwater Light
1 described by the USCG at (21[deg]26'50.68'' N/158[deg]11'48.90'' W).
Specific Area 15: Maui Nui includes the islands Molokai, Lanai,
Kahoolawe, and Maui and the surrounding marine waters. This specific
area incorporates 2,510 mi\2\ (6,500 km\2\) of marine habitat, 119 mi
(192 km) of general coastline on Maui, 88 miles (142 km) of general
coastline on Molokai, 47 miles (76 km) of coastline on Lanai, and 29
miles (47 km) of general coastline on Kahoolawe. Since 1995, 53 births
have been recorded on the island of Molokai, 7 on the island of
Kahoolawe, and 6 on the island of Maui. All six essential features are
present within the specific area.
Areas within this specific area that do not meet the definition of
critical habitat are defined as the following locations and are
delineated by the identified boundaries: Hana wharf and ramp, Maui is
delineated by all terrestrial coastlines from 20[deg]45'18.53'' N/
155[deg]58'56.32'' W east to 20[deg]45'19.93'' N/155[deg]58'54.12'' W;
Kahului Harbor is delineated by all terrestrial coastline between where
the hardened shoreline meets the beach to the west of the harbor
(20[deg]53'53.05'' N/156[deg]28'47.87'' W) east to where the hardened
shoreline meets the beach to the east of the harbor (20[deg]53'49.07''
N/156[deg]27'38.84'' W) and all waters located inshore of the line
drawn between the west breakwater Light 4 (20[deg]54'01.16'' N/
156[deg]28'26.82'' W) east to the east breakwater Light 3
(20[deg]54'02.36'' N/156[deg]28'17.43'' W) (i.e., the harbor's USCG
defined COLREG line); Kihei boat ramp, Maui is delineated by all
terrestrial coastlines between 20[deg]42'31.34'' N/156[deg]26'46.95'' W
south to 20[deg]42'27.19'' N/156[deg]26'46.13'' W and all waters in the
harbor located inshore of the line drawn between 20[deg]42'31.34'' N/
156[deg]26'46.95'' W west to the seaward edge of the northern point on
the breakwater at the harbor entrance (20[deg]42'30.29'' N/
156[deg]26'48.46'' W); Lahaina harbor, Maui is delineated by all
terrestrial coastlines between 20[deg]52'21.63'' N/156[deg]40'44.05'' W
south to 20[deg]52'11.67'' N/156[deg]40'38.53'' W and all waters in the
harbor located inshore of the line drawn from 20[deg]52'21.63'' N/
156[deg]40'44.05'' W to the seaward edge of the breakwater at the
harbor entrance (20[deg]52'18.18'' N/156[deg]40'45.33'' W); Maalaea
Harbor is delineated by all terrestrial coastlines between where the
western hardened shoreline meets the coast (20[deg]47'23.65'' N/
156[deg]30'49.85'' W) east to where the eastern hardened shoreline
meets the coast (20[deg]47'32.07'' N/156[deg]30'34.24'' W) and all
waters in the harbor located inshore of the line drawn from the seaward
edge of the west breakwater at the harbor entrance (20[deg]47'24.74''
N/156[deg]30'39.18'' W) east to the seaward edge of the east breakwater
at the harbor entrance (20[deg]47'24.59'' N/156[deg]30'36.41'' W); Mala
wharf and ramp, Maui is delineated by all hardened structures and
coastline between the point where the hardened
[[Page 32038]]
structures of the wharf meets the coastline on the south side of the
wharf (20[deg]53'05.20'' N/156[deg]41'12.47'' W) north to the southern
edge of the Kahoma stream (20[deg]53'07.86'' N/156[deg]41'10.78'' W);
Nakalahale cliff region, Lanai is delineated by all coastline between
20[deg]44'31.86'' N/156[deg]52'46.92'' W east to 20[deg]45'05.8458'' N/
156[deg]52'00.8214'' W; Kaholo cliff region, Lanai is delineated by all
coastline between 20[deg]46'40.33'' N/156[deg]59'19.02'' W south to
20[deg]44'17.52'' N/156[deg]58'03.36'' W; Manele Harbor, Lanai is
delineated by all terrestrial coastlines from where the Manele Harbor
breakwater meets the coastline (20[deg]44'29.34'' N/156[deg]53'15.88''
W) north to 20[deg]44'34.95'' N/156[deg]53'15.45'' W and all waters
located inshore of a line drawn between the seaward extension of the
breakwater (20[deg]44'30.38'' N/156[deg]53'16.33'' W) north to
20[deg]44'34.95'' N/156[deg]53'15.45'' W; Kamalapau Harbor, Lanai is
delineated by all terrestrial coastline between 20[deg]47'29.37'' N/
156[deg]59'20.04'' W south to 20[deg]47'07.94'' N/156[deg]59'21.51'' W;
Haleolono Harbor, Molokai is delineated by all hardened structures and
coastline between 21[deg]05'13.04'' N/157[deg]15'03.68'' W east to
21[deg]05'04.43'' N/157[deg]14'54.82'' W and all waters located inshore
of the line drawn between the seaward edge of the west breakwater
21[deg]05'01.21'' N/157[deg]14'58.95'' W east to the seaward edge of
the east breakwater 21[deg]05'04.43'' N/157[deg]14'54.82'' W;
Kaunakakai Pier, Molokai is delineated by all terrestrial coastline
between 21[deg]05'14.83'' N/157[deg]01'30.42'' W east to
21[deg]05'09.12'' N/157[deg]01'23.05'' W; and Kalaupapa Harbor is
delineated by all terrestrial coastline between 21[deg]11'26.09'' N/
156[deg]59'04.76'' W south to 21[deg]11'23.57'' N/156[deg]59'04.12'' W.
Specific Area 16: Hawaii is the largest island in the MHI, with a
general coastline of 265 miles (426 km), and the specific area
incorporates approximately 1,015 mi\2\ (2,629 km\2\) of marine habitat.
Since 2001, 9 births have been recorded on the island of Hawaii. All
six essential features are present within the specified area.
Areas within this specific area that do not meet the definition of
critical habitat are defined as the following locations and are
delineated by the identified boundaries: Hilo harbor delineated by all
water inshore of a line drawn from the seaward extremity of the Hilo
Breakwater 265[deg] true (as an extension of the seaward side of the
breakwater) (19[deg]44'34.53'' N/155[deg]04'29.98'' W) west to the
shoreline 0.2 nautical mile (0.4 km) north (19[deg]44'28.74'' N/
155[deg]05'23.80'' W) of Alealea Point or the harbor's USCG defined
COLREG line and delineated by all terrestrial coastlines between 0.2
nautical mile (0.4 km) north (19[deg]44'28.74'' N/155[deg]05'23.80'' W)
of Alealea Point east to 19[deg]43'55.88'' N/155[deg] 03'01.68'' W;
Honokohau harbor delineated by all terrestrial coastlines and waters
inshore and inland of the line drawn between the Honokohau entrance
channel Light 3 (19[deg]40'11.52'' N/156[deg]01'37.84'' W) and the
Honokohau entrance channel Light 4 (19[deg]40'09.41'' N/
156[deg]01.35.90'' W) Kailua-Kona Wharf delineated by all coastlines
and waters located inshore of the line drawn between 19[deg]38'17.09''
N/155[deg]59'53.05'' W east to 19[deg]38'17.69'' N/155[deg]59'39.43''
W; Kawaihae Harbor all coastlines and hardened structures located
between Kawaihae Light (20[deg]02'29.12'' N/155[deg]49'58.21'' W) south
to 20[deg]01'42.29'' N/155[deg]49'25.20'' W and all waters located
inshore of the line drawn between Kawaihae Light (20[deg]02'29.12'' N/
155[deg]49'58.21'' W) and the seaward extremity of the Kawaihae
breakwater Light 6 (20[deg]02'14.21'' N/155[deg]50'02.00'' W); Keauhou
boat harbor all terrestrial coastlines between 19[deg]33'39.63'' N/
155[deg]57'45.06'' W east to 19[deg]33'42.89'' N/155[deg]57'42.69'' W;
Mahukona Harbor all coastlines and structures located between
20[deg]10'59.62'' N/155[deg]54'03.57'' W east to 20[deg]11'02.21'' N/
155[deg]54'01.99'' W; and the active lava flow areas along the
coastline.
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 Hawaiian monk seals that may be essential
for the conservation of the species.
Special Management Considerations or Protections
Joint NMFS and USFWS regulations at 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.''
Activities that may require special management or protection were
identified by reviewing the threats identified in the Hawaiian Monk
Seal Recovery Plan (NMFS, 2007a) as either impacting the seal or the
essential features of the habitat. Threats identified as impacting the
individual seal were considered jeopardy threats that are addressed
with protections put in place with the listing of the species. Threats
impacting the essential features of habitat were considered to be
potential threats to critical habitat. In some cases, threats were
considered both a threat to the species and to the habitat, and these
threats were examined from a habitat perspective. Human activities with
potential for generating or contributing to the habitat related threats
were then identified in order to determine special management
considerations or protections that may be necessary. Past PIRO ESA
section 7 consultations were also reviewed to further identify
activities that occur in the Hawaiian Islands that may impact the
essential features. Additionally, threats recognized in the Petition
(Center for Biological Diversity, 2008) were reviewed for possible
associated activities that may impact the essential features. Human
activities identified as having the potential to threaten the essential
features such that special management considerations or protection may
be necessary were then organized into categories for consideration
during the 4(b)(2) analysis.
Major categories of activities that are related to habitat were
defined as the following: (1) In water and coastal construction; (2)
dredging and disposal of dredged material; (3) energy development
(renewable energy projects); (4) activities that generate water
pollution; (5) aquaculture; (6) fisheries; (7) oil spills and vessel
groundings response activities; and (8) military activities. All of the
identified activities have the potential to affect one or more of the
essential features by altering the amount of the physical habitat
available for Hawaiian monk seals, the quality of that area available
(e.g., increasing the level of anthropogenic disturbance), or the
marine environment in such a way that the prey quantity or quality, is
negatively impacted. This is not an exhaustive or complete list of
potential effects, but rather a description of the primary concerns and
potential effects that we are aware of at this time and that should be
considered in the analysis of these activities under section 7 of the
ESA. These activities are described briefly in Table 1 below. The draft
Biological Report (NMFS, 2010a) and
[[Page 32039]]
draft Economic Analysis Report (ECONorthwest 2010) provide a more
detailed description of the potential effects of each category of
activities and threats on the essential features. For example,
activities such as in-water and coastal construction, dredging and
disposal of dredged materials, energy projects, aquaculture projects,
and military activities may have adverse impacts on preferred pupping
and nursing areas, marine areas associated with pupping and nursing
areas, marine foraging areas, or significant haul-out areas by
decreasing the amount of available space in these areas. Increased
activities such as those mentioned, located in remote sites, also have
the potential to impact the level of anthropogenic disturbance such
that Hawaiian monk seals abandon preferred pupping and nursing areas
and significant haul-out sites. In-water and coastal construction,
dredging and disposal of dredged materials, energy projects,
aquaculture projects, and activities that generate water pollution may
result in impacts to water quality such that the quantity and/or
quality of available prey species are impacted.
Table 1--Information on Activities That May Affect Hawaiian Monk Seal Habitat Essential Features, Including the
Specific Areas in Which the Activity Is Located, the Essential Features That Activity Could Affect and the
Nature of That Threat, and the Possible Modifications to the Activity Due to the Hawaiian Monk Seal Critical
Habitat Revision
----------------------------------------------------------------------------------------------------------------
Essential features and Possible modifications to
Activity Specific areas nature of the threat the activity
----------------------------------------------------------------------------------------------------------------
In water and coastal 2, 8, 13, 14, 15, Preferred pupping and Restriction on the spatial
construction. 16. nursing areas, marine areas and temporal extent of the
adjacent to preferred project. Limitations on
pupping and nursing areas, the size, and numbers of
significant haul-out areas, heavy equipment brought
and marine foraging areas-- into the area. Increased
development on or near monitoring efforts
these areas may reduce the regarding seal behavior
amount or quality of the and response to
available habitat. disturbance. Increased
Adequate quantity or quality education efforts for the
of prey--construction may public. Increased
impact water quality by education efforts for
release of contaminants or project personnel.
increased sedimentation, Monitoring efforts to
resulting in impacts to the identify impacts to
quantity and quality of benthic community or prey
prey species. species. Limitations on
Low levels of anthropogenic access to and from the
disturbance--development in area. Monitoring efforts
remote or less disturbed regarding seal foraging
areas may increase the behavior.
potential for disturbance,
making monk seals avoid or
abandon preferred areas.
Dredging........................ 2, 13, 14, 15, 16.. Preferred pupping and Restriction on the spatial
nursing areas, marine areas and temporal extent of the
adjacent to preferred project. Limitations on
pupping and nursing areas, the size, and numbers of
significant haul-out areas, heavy equipment brought
and marine foraging areas-- into the area. Increased
dredging or disposing in or monitoring efforts
near these areas may reduce regarding seal behavior
the amount or quality of and response to
the available habitat. disturbance. Increased
Adequate quantity or quality education efforts for
of prey--dredging or project personnel.
disposing may impact water Monitoring efforts to
quality by release of identify impacts to
contaminants or increased benthic community or prey
sedimentation, resulting in species. Limitations on
impacts to the quantity and access to and from the
quality of prey species. area.
Low levels of anthropogenic
disturbance--dredging or
disposal in remote or less
disturbed areas may
increase the potential for
disturbance, making monk
seals avoid or abandon
preferred areas.
Energy Development (renewable 13, 14, 15, 16..... Preferred pupping and Restriction on the spatial
energy projects). nursing areas, marine areas and temporal extent of the
adjacent to preferred project. Limitations on
pupping and nursing areas, the size, and numbers of
significant haul-out areas, heavy equipment brought
and marine foraging areas-- into the area. Increased
development on or near monitoring efforts
these areas may reduce the regarding seal behavior
amount or quality of the and response to
available habitat. disturbance. Increased
Adequate quantity or quality education efforts for the
of prey--construction may public. Increased
impact water quality by education efforts for
release of contaminants or project personnel.
increased sedimentation, Monitoring efforts to
resulting in impacts to the identify impacts to
quantity and quality of benthic community or prey
prey species. species. Limitations on
Low levels of anthropogenic access to and from the
disturbance--development in area. Monitoring efforts
remote or less disturbed regarding seal foraging
areas may increase the behavior.
potential for disturbance,
making monk seals avoid or
abandon preferred areas.
Activities that generate water 13, 14, 15, 16..... Adequate quantity or quality Restriction on the location
pollution. of prey--release of or amount of discharge.
contaminants, pollutants, Increased monitoring
or increased sediment may efforts to identify
result in degradation of impacts to benthic
water quality, causing community or prey species.
declines in prey quantity Where Federal permits are
and/or quality. necessary, ensure that
discharge meets standards
other than existing
Federal standards and
regulations.
[[Page 32040]]
Aquaculture..................... 13, 14, 15, 16..... Preferred pupping and Restriction on the spatial
nursing areas, marine areas and temporal extent of the
adjacent to preferred project. Limitations on
pupping and nursing areas, the size, and numbers of
significant haul-out areas, heavy equipment brought
and marine foraging areas-- into the area. Increased
development of facilities monitoring efforts
on or near these areas may regarding seal behavior
reduce the amount or and response to
quality of the available disturbance. Increased
habitat. education efforts for
Adequate quantity or quality project personnel.
of prey--construction and Monitoring efforts to
effluent release may impact identify impacts to
water quality by release of benthic community or prey
contaminants or increased species. Limitations on
sedimentation, resulting in access to and from the
impacts to the quantity and area. Monitoring efforts
quality of prey species. regarding seal foraging
Low levels of anthropogenic behavior. Where Federal
disturbance--development of permits are necessary,
facilities in remote or ensure that discharge
less disturbed areas may meets standards other than
increase the potential for existing Federal standards
disturbance, making monk and regulations.
seals avoid or abandon
preferred areas.
Fisheries....................... 12, 13, 14, 15, 16. Adequate quantity or quality Restriction on the spatial
of prey--overlap between or temporal extent of
prey species and commercial fishing areas. Increased
fisheries may impact the monitoring efforts to
amount of available prey identify ecosystem impacts
species. to prey species.
Oil spills and vessel groundings Due to vessel Preferred pupping and Limitations on the size,
response activities. traffic any nursing areas, marine areas and numbers of heavy
specific area may adjacent to preferred equipment brought into the
be impacted, but pupping and nursing areas, area. Increased monitoring
more developed significant haul-out areas, efforts regarding seal
areas may be at and marine foraging areas-- behavior and response to
higher risk: 12, oil spills or groundings on disturbance. Increased
13, 14, 15, and 16. or near these areas may education efforts for the
reduce the amount or public. Increased
quality of the available education efforts for
habitat. project personnel.
Adequate quantity or quality Monitoring efforts to
of prey--oil spills or identify impacts to
chemical releases from benthic community or prey
groundings may impact water species. Limitations on
quality, resulting in access to and from the
impacts to the quantity and area. Monitoring efforts
quality of prey species. regarding seal foraging
Additionally, removal of behavior.
vessels may increase
sedimentation, impacting
water quality and prey
species.
Low levels of anthropogenic
disturbance--oil spills or
vessel groundings in remote
or less disturbed areas may
increase the potential for
disturbance, making monk
seals avoid or abandon
preferred areas.
Military activities............. 10, 12, 13, 14, 15, Preferred pupping and Restriction on the spatial
16. nursing areas, marine areas and temporal extent of the
adjacent to preferred project. Increased
pupping and nursing areas, monitoring efforts
significant haul-out areas, regarding seal behavior
and marine foraging areas-- and response to
military activities in or disturbance. Monitoring
near these areas may reduce efforts to identify
the amount or quality of impacts to benthic
the available habitat. community or prey species.
Monitoring efforts
regarding seal foraging
behavior.
Adequate quantity or quality
of prey--certain activities
may impact the quantity and
quality of prey species.
Low levels of anthropogenic
disturbance--certain
activities in remote or
less disturbed areas may
increase the potential for
disturbance, making monk
seals avoid or abandon
preferred areas.
----------------------------------------------------------------------------------------------------------------
We also considered impacts to essential features presented by the
petitioner, specifically, the threat of global warming as described in
the petition by the processes including sea level rise, warming ocean
temperatures, and ocean acidification. A discussion of these threats
may be found in the draft Biological Report (NMFS, 2010). We
acknowledge that impacts as a result of global warming or global
climate change are threats to Hawaiian monk seal habitat and,
therefore, may threaten the survival and conservation of the Hawaiian
monk seal. In evaluating these threats, we recognize that rising sea
levels have the potential to diminish the number and size of available
pupping and nursing areas, as well as haul-out areas, and that this
threat exists in both the NWHI and the MHI. Additionally, sea level
rise not only has the potential to impact haul-out areas, but resulting
changes in ocean biochemistry and currents, coupled with increased
ocean temperatures and ocean acidification, may affect Hawaiian monk
seal foraging habitat by impacting prey species. It is expected that
climatic shifts may result in changes to the range and distribution
[[Page 32041]]
of prey species, as well as to the composition and dynamics of the
surrounding marine systems (Parmesan, 2006); however, the time scale
and extremity in which impacts to marine ecosystems will be realized
are still uncertain. These current limitations in predicting the
specific changes to the ecosystem prevent us from predicting the
resulting impacts to Hawaiian monk seals with any certainty. Given the
complex and uncertain impacts of climate change, this threat is best
addressed during the individual consultation process across all
activities undergoing consultation. In this manner we will be able to
incorporate special management considerations to specific activities as
the extent of impacts from this threat are demonstrated or better
understood. We request any additional information with regard to the
threats associated with global climate change and known impacts to
Hawaiian monk seal critical habitat, including its essential features
(see ``Public Comments Solicited'').
Military Areas Ineligible for Designation (4(a)(3) Determinations)
The Sikes Act of 1997 (Sikes Act, 16 U.S.C. 670a) requires military
installations with ``land and water suitable for the conservation and
management of natural resources'' to complete an integrated natural
resource management plan (INRMP). The plans are meant to integrate
implementation of the military mission of the installation with the
stewardship of the natural resources found on site. Each INRMP
includes: An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species; a
statement of goals and priorities; a detailed description of management
actions to be implemented to provide for these ecological needs; and a
monitoring and adaptive management plan. Each INRMP must to the extent
appropriate and applicable, provide for: Fish and wildlife management;
fish and wildlife habitat enhancement or modification; wetland
protection, enhancement, and restoration where necessary to support
fish and wildlife or plants; and enforcement of applicable natural
resource laws. INRMPs are prepared in cooperation with the USFWS and
the appropriate state fish and wildlife agency, and are subject to
review no less than every 5 years.
Section 4(a)(3)(B)(i) of the ESA states: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We contacted the Department of Defense (DOD) and requested
information on all INRMPs for DOD facilities that overlap with the
specific areas considered for designation as critical habitat and that
might provide a benefit for Hawaiian monk seals. Both the U.S. Marine
Corps (USMC) and the Navy provided us with INRMPs for review under
4(a)(3)(B)(i) of the ESA. The USMC provided an INRMP covering the years
2006-2011 for the Marine Corps Base Hawaii (MCBH). Areas subject to the
MCBH INRMP that overlap with the areas under consideration for critical
habitat include: Marine Corps Base Hawaii, Kaneohe Bay (MCBH-KB), and
the 500-yard buffer zone in marine waters surrounding the Mokapu
Peninsula, Oahu; Marine Corps Training Area Bellows (MCTAB) Waimanalo,
Oahu; and Puuloa Training Facility, on the Ewa coastal plain, Oahu.
The Navy identified two INRMPs as relevant to this review process:
The Pacific Missile Range Facility (PMRF) INRMP and the Naval Station
Pearl Harbor INRMP, now referred to as the Joint Base Pearl Harbor-
Hickam INRMP. The Navy has been working with cooperating partners, in
accordance with the SIKES Act (Sikes Act, 16 U.S.C. 670a), to revise
both documents and multiple drafts of the documents and relevant
materials were presented to NMFS for review. Areas subject to the PMRF
INRMP that overlap with the areas under consideration for critical
habitat include: PMRF Main Base at Barking Sands, Kauai; and Kaula
Island. Although the 2001 Naval Station Pearl Harbor INRMP only covers
those areas in the Pearl Harbor Complex that are not included in the
areas under consideration, the Navy has identified that the Joint Base
Pearl Harbor-Hickam INRMP will include the following areas that overlap
with the proposed designation: The Navy Defensive Sea Area (NDSA), and
the marine reserved zone outside Pearl Harbor and Navy retained lands
at Kalaeloa (Nimitz Beach and White Plains Beach), Oahu.
To determine whether a plan provides a benefit to the species, we
evaluated each plan with regard to the potential conservation benefits
to the species, the past known implementation of the management
efforts, and the management effectiveness of the plan. Plans determined
to be a benefit to the species demonstrated strengths in all three
areas of the review. During consideration of the criteria, we
determined that an effective management plan must have a structured
process to gain information (through monitoring and reporting), a
process for recognizing program deficiencies and successes (review),
and a procedure for addressing any deficiencies (allowing for adaption
for conservation needs).
In review, the MCBH INRMP demonstrated potential conservation
benefits for the species, a strong history of plan implementation, and
a clear structure to ensure plan effectiveness; thus, the plan was
found to be a benefit to the species. Conservation measures outlined in
the ecosystem based plan included: Debris removal; prohibitions against
lay nets and gill nets in the 500-yard buffer zone; enforcement of
established rules via a Conservation Law Enforcement Officer;
interagency cooperation for rehabilitation events; use of established
procedures for seal haul out and pupping events; educational outreach
(including classroom briefs, Web page, news articles, brochures,
service projects, and on-site signage and monitoring); ecological
assessment and inventories; and water quality projects (minimizing
erosion and pollution). Implementation of past efforts was clearly
outlined in the appendices for the plan through reports and a schedule
of accomplishments. Management effectiveness was demonstrated by: The
organized manner in which the plan and appendices outline the goals and
objectives; reports and monitoring efforts; the plan's implementation;
and the achievement of the goals and objectives. Based on these
benefits provided for the Hawaiian monk seal, we determined that the
areas covered under the MCBH INRMP on Oahu are not eligible for
designation as critical habitat.
Preliminary review of the PMRF INRMP identifies essential elements
of a successful conservation program that will benefit the species
including: Marine debris removal, monitoring, and prevention; trapping
of feral pigs, cats, and dogs; pet restrictions; restriction of public
access; protocols to prevent disturbance; public education; training to
prevent ship groundings; and compliance and restoration programs for
contaminants. Additionally, the Main Base at Barking Sands presents a
history of plan implementation and management effectiveness. NMFS is
currently working with the Navy to make revisions to the draft plan's
performance monitoring element at
[[Page 32042]]
Kaula Island and other sites, which will help ensure consistent and
effective plan implementation under the PMRF INRMP.
Preliminary review of draft plans for the Joint Base Pearl Harbor-
Hickam INRMP demonstrates potential conservation benefits for the
species including: Marine debris removal, monitoring, and prevention;
pet restrictions; restriction of access; protocol to prevent
disturbance during naval activities; public education; training to
prevent ship groundings; and compliance and restoration programs for
contaminants. Currently, the Navy is working to address concerns raised
by NMFS regarding consistent monitoring and management efforts across
all sites subject to the INRMP, and working to add a performance
monitoring element that will aid in addressing management
effectiveness.
If the PMRF or the Joint Base Pearl Harbor-Hickam INRMPs are
revised and finalized, meeting the identified concerns, and determined
to provide a benefit to Hawaiian monk seals, as described under section
4(a)(3)(B) of the ESA, then the areas would be ineligible for
designation. Therefore, a determination on whether the areas warrant
exclusion under 4(b)(2) of the ESA based on national security impacts
would no longer be necessary. However, for this proposed rule, areas
subject to the Navy's INRMPs were separately evaluated to determine the
impacts that the proposed designation may have on National Security to
meet the considerations established under 4(b)(2) of the ESA. These
considerations are discussed in the draft ESA section 4(b)(2) report
(NMFS, 2010b) and summarized further under the ``Exclusions Based on
Impacts on National Security'' section of this proposed rule.
ESA Section 4(b)(2) Analysis
Section 4(b)(2) of the ESA requires the Secretary to consider the
economic, national security, and any other relevant impacts of
designating any particular area as critical habitat. Any particular
area may be excluded from critical habitat if the Secretary determines
that the benefits of excluding the area outweigh the benefits of
designating the area. The Secretary may not exclude a particular area
from designation if exclusion will result in the extinction of the
species. Because the authority to exclude is discretionary, exclusion
is not required for any areas. In this proposed designation, the
Secretary has applied statutory discretion to exclude five occupied
areas from critical habitat where the benefits of exclusion outweigh
the benefits of designation.
The first step in conducting the ESA section 4(b)(2) analysis is to
identify the ``particular areas'' to be analyzed. The ``particular
areas'' considered for exclusion are defined based on the impacts
identified. Where we considered economic impacts and weighed the
economic benefits of exclusion against the conservation benefits of
designation, we used the same biologically-based ``specific areas'' we
had identified under section 3(5)(A) (e.g., Niihau, Kauai, Oahu).
Delineating the ``particular areas'' as the same units as the
``specific areas'' allowed us to most effectively consider the
conservation value of the designation. We also considered exclusions
based on impacts on national security and other relevant impacts (i.e.,
for this designation, impacts on FWS). Delineating particular areas
based on impacts on national security or other relevant impacts was
based on land ownership or control (e.g., land controlled by the DOD
within which national security impacts may exist or land owned or
controlled by the USFWS). We request information on other relevant
impacts that should be considered (see ``Public Comments Solicited'').
The next step in the ESA section 4(b)(2) analysis involves
identification of the impacts of designation (i.e., the benefits of
designation and the benefits of exclusion). We then weigh the benefits
of designation against the benefits of exclusion to identify areas
where the benefits of exclusion outweigh the benefits of designation.
These steps and the resulting list of areas proposed for exclusion from
designation are described in detail in the sections below.
Impacts of Designation
The primary impact of a critical habitat designation stems from the
requirement under section 7(a)(2) of the ESA that Federal agencies
insure that their actions are not likely to result in the destruction
or adverse modification of critical habitat. Determining this impact is
complicated by the fact that section 7(a)(2) contains the overlapping
requirement that Federal agencies must also insure their actions are
not likely to jeopardize the species' continued existence. One
incremental impact of the designation is the extent to which Federal
agencies modify their actions to insure their actions are not likely to
destroy or adversely modify the critical habitat of the species, beyond
any modifications they would make because of the listing and the
jeopardy requirement. When a modification would be required due to
impacts to both the species and critical habitat, the impact of the
designation is considered co-extensive with the ESA listing of the
species. Additional impacts of designation include state and local
protections that may be triggered as a result of the designation and
the benefits from educating the public about the importance of each
area for species conservation. Thus, the impacts of the designation
include conservation impacts for Hawaiian monk seal and its habitat,
economic impacts, impacts on national security, and other relevant
impacts that may result from the designation and the application of ESA
section 7(a)(2).
In determining the impacts of designation, we focused on the
incremental change in Federal agency actions as a result of critical
habitat designation and the adverse modification provision, beyond the
changes predicted to occur as a result of listing and the jeopardy
provision. Following a line of recent court decisions, including:
Arizona Cattle Growers Association v. Salazar, 606 F. 3d 1160 (9th Cir.
2010)) (Arizona Cattle Growers); Home Builders Association of Northern
California et al., v. U.S. Fish and Wildlife Service, 616 F.3d 983 (9th
Cir. 2010) (Home Builders); and Cape Hatteras Access Preservation
Alliance v. Norton, 344 F. Supp. 2d 108 (D.D.C. 2004)) (Cape Hatteras),
economic impacts that occur regardless of the critical habitat
designation are treated as part of the regulatory baseline and are not
factored into the analysis of the effects of the critical habitat
designation. In other words, consistent with Cape Hatteras, Arizona
Cattle Growers, and Home Builders decisions, we focus on the potential
incremental impacts beyond the impacts that would result from the
listing and jeopardy provision. In some instances, potential impacts
from the designation could not be distinguished from protections that
may already occur under the baseline (i.e., protections already
afforded Hawaiian monk seals under its listing or under other Federal,
state, and local regulations). For example, the project modifications
to prevent the disturbance to an area of critical habitat may be
similar to the project modifications necessary to prevent jeopardy to
the species in an area. The extent to which these modifications differ
may be project specific, and the incremental changes or impacts to the
project may be difficult to tease apart without further project
specificity. Thus, the analysis may include some impacts or project
[[Page 32043]]
modifications that may have been required under the baseline regardless
of the critical habitat rule.
Once we determined the impacts of the designation, we then
determined the benefits of designation and the benefits of exclusion
based on the impacts of the designation. The benefits of designation
include the conservation benefits for Hawaiian monk seals and their
habitat that result from the critical habitat designation and the
application of ESA section 7(a)(2). The benefits of exclusion include
the economic impacts, impacts on national security, and other relevant
impacts (e.g., impacts on Native lands) of the designation that would
be avoided if a particular area were excluded from the critical habitat
designation. The following sections describe how we determined the
benefits of designation and the benefits of exclusion and how those
benefits were weighed as required under section 4(b)(2) of the ESA, to
identify particular areas that may be eligible for exclusion from the
designation. We also summarize the results of this weighing process and
determinations of the areas that may be eligible for exclusion.
Benefits of Designation
The primary benefit of designation is the protection afforded under
section 7 of the ESA, requiring all Federal agencies to insure their
actions are not likely to destroy or adversely modify designated
critical habitat. This is in addition to the requirement that all
Federal agencies insure their actions are not likely to jeopardize the
continued existence of the species. In addition to the protections
described above, the designation may also result in other forms of
benefits as discussed in detail in the draft Economic Analysis Report
(ECONorthwest, 2010), including, but not limited to: educational
awareness and outreach benefits, benefits to tourism and recreation,
and improved or sustained habitat quality.
Most of these benefits are not directly comparable to the costs of
designation for purposes of conducting the section 4(b)(2) analysis
described below. Ideally, benefits and costs should be compared on
equal terms (e.g., apples to apples); however, there is insufficient
information regarding the extent of the benefits and the associated
values to monetize all of these benefits. We have not identified any
available data to monetize the benefits of designation (e.g., estimates
of the monetary value of the essential features within areas designated
as critical habitat, or of the monetary value of education and outreach
benefits). Further, section 4(b)(2) also requires that we consider and
weigh impacts other than economic impacts that do not lend themselves
to quantification in monetary terms, such as the benefits to national
security of excluding areas from critical habitat. Given the lack of
information that would allow us either to quantify or monetize the
benefits of the designation for Hawaiian monk seals discussed above, we
determined that conservation benefits should be considered from a
qualitative standpoint.
In determining the benefits of designation, we considered a number
of factors. We took into account the essential features present in the
area, the habitat functions provided by each area, and the importance
of protecting the habitat for the overall conservation of the species.
In doing so, we recognized that Hawaiian monk seal habitat throughout
the Hawaiian Archipelago is irreplaceable due to the remote nature of
the Hawaiian Islands from other areas of suitable habitat. This is
especially true of the newly proposed areas within the MHI, since these
areas represent not only habitat where the species is currently
thriving, but also a geologically younger area that is under less
threat from natural erosion processes and rising sea levels in
comparison to available habitat in the NWHI. Therefore, factors
attributed to the benefits of the designation of areas were
individually considered within each particular area during the
exclusion discussions.
Benefits of Exclusion Based on Economic Impacts and Proposed Exclusions
The economic benefits of exclusion are the economic impacts that
would be avoided by excluding particular areas from the designation. To
determine these economic impacts, we identified activities within each
specific area that may affect Hawaiian monk seal and its critical
habitat. The eight categories of activities are identified in the
``Special Management Considerations and Protections'' section above. We
then considered the range of modifications that we might seek in these
activities to avoid destroying or adversely modifying Hawaiian monk
seal critical habitat (identified in Table 1). Where possible, we
focused on changes beyond those that may be required to prevent
jeopardy to the continued existence of the species (i.e., protections
in place resulting from listing the species). We relied on information
from other ESA section 7 consultations and NMFS expertise to determine
the types of activities and potential range of changes. Although the
project modifications have been identified, we were unable to identify
sufficient information to accurately monetize the estimated economic
benefits of exclusion beyond the administrative costs of the section 7
consultation, but we recognize that additional economic costs may
exist. These costs may vary widely depending on the project scope,
location of the project, number of essential features present, as well
as the extent of the anticipated impact from the activity.
We contacted a number of Federal and state agencies that are often
involved in actions that require section 7 consultations to identify
potential projects in areas proposed for designation and the potential
economic impacts of the identified project modifications. Agencies
contacted were unable to predict specific projects intended for the
areas of overlap with the proposed designation, but agreed that there
was potential for future projects in these areas. The inability of
these agencies to identify potential projects may be in part because
most projects tend to occur in highly developed areas that are outside
the proposed designation areas. These highly developed harbors and
ports (e.g., Pearl Harbor) were not included in the designation because
these areas either lack the essential features or the quality of
essential features that would be considered essential to the
conservation of the Hawaiian monk seal. Another possible explanation is
the uncertainty associated with projects that are still in the
conceptual phase. Agencies identified that planned projects may take
several years to move from conception to completion. The scope and
locations which overlap with the proposed designation may not be fully
realized; therefore, the costs associated with project modifications
have not yet been recognized.
Additionally, agencies identified that many projects have best
management practices or standards to protect natural resources. The
identified project modifications associated with the proposed
designation may overlap with some of these best management practices.
Until the difference between the best management practices and
identified project modifications are realized in the field, the exact
costs of the designation are difficult to determine. For example, a
Federal project currently planned may incorporate certain practices to
prevent disturbance to wildlife species. If the project were located
within the critical habitat designation, measures taken to prevent
disturbance may be increased due to the presence of essential features
at the site (e.g., a preferred pupping
[[Page 32044]]
beach), resulting in additional costs. Until specifications, such as
the scope and location, of the project are determined, the variation
between project modifications to prevent disturbance for critical
habitat and the baseline protections taken to prevent wildlife
disturbance at some of these sites is difficult to tease apart; thus,
the additional costs are difficult to discern. This inability to
realize the costs of projects modifications may also demonstrate the
lack of experience with marine critical habitat designations in the
developed areas of the Pacific Island region. The proposed Hawaiian
monk seal designation represents the first critical habitat designation
in the marine environment of the highly developed areas of the MHI.
In reviewing the factors associated with economic costs of the
designation, we considered that the economic administrative costs of
designation appear relatively low across the MHI where the majority of
the incremental effects of the designation should be felt. The economic
costs of designation in the NWHI are expected to remain similar, since
consultations in this area (where critical habitat is already
designated for the Hawaiian monk seal) have been subject to adverse
modification considerations since 1988, and additional marine areas are
not expected to increase the number of consultations for this region.
An exception to this may include activities at Sand Island at Midway
Islands because Sand Island was not included in the original
designation. However, we have not been made aware of activity plans for
Sand Island that may impact essential features. A discussion of impacts
at Sand Island may be found under ``Other Relevant Impacts.''
Throughout the proposed critical habitat areas, we found that the
activities of concern are already subject to multiple environmental
laws, regulations, and permits which afford the proposed essential
features a high level of baseline protections, but we also believe that
despite these protections, uncertainty remains regarding the true
extent of the impacts that some activities may have on the essential
features. This uncertainty makes estimating economic impacts of the
designation difficult to determine, since, as noted above, project
modifications may be considered speculative. The draft Economic
Analysis Report (ECONorthwest, 2010) indicates that impacts may be felt
most strongly by in-water and coastal construction activities and the
disposal of dredge materials. Beyond these impacts, the potential
exists for greater economic impacts to activities associated with water
quality control and fishing activities as we better understand the
impacts that these activities have on the essential features of
Hawaiian monk seal critical habitat.
To conduct the ESA 4(b)(2) analysis we considered the
aforementioned impacts of designation against the benefits of
designating critical habitat for the Hawaiian monk seal in these areas.
The Economic Analysis clearly demonstrates the potential for benefits
in the tourism industry and through the values that people place on
Hawaiian monk seals and the environment in Hawaii, but we focused on
what this designation means for the Hawaiian monk seal. In doing so, we
acknowledged first that the Hawaiian monk seal population is on the
decline (NMFS, 2009). Secondly, we acknowledged that rises in sea level
continue to present a threat to the species, especially in the habitat
previously designated in the NWHI, and we recognized that the growing
population in the MHI represents the best hope for conserving the
population. As discussed earlier, the benefits associated with the
designation of critical habitat stem from our ability to identify the
features that are essential not only for the conservation of the
species but also for its recovery. The proposed rule, if finalized as
proposed, will in turn provide protections for those essential features
through ESA section 7(a)(2) consultations. Specifically designating
critical habitat within the MHI provides a means to protect those
essential features in an area where the features are most threatened by
expansion and development; this will be especially important as the
population of seals increases in the MHI. In summary, at this time, we
have not identified a particular area where the benefits of exclusion
from the designation due to economic impacts outweigh the benefits of
designation of Hawaiian monk seal critical habitat; therefore, no areas
are proposed for exclusion due to economic impacts.
Exclusions Based on Impacts to National Security
The national security benefits of exclusion are the national
security impacts that would be avoided by excluding particular areas
from the designation. We contacted representatives of DOD and the
Department of Homeland Security to request information on potential
national security impacts that may result from the designation of
particular areas as critical habitat for the Hawaiian monk seal. In
response to the request, the U.S. Air Force, the U.S. Army, and the
U.S. Coast Guard made no requests for exclusion from the critical
habitat areas under consideration. Both the U.S. Navy and the USMC
identified sites that overlap with the areas under consideration. Both
requested that we exclude all identified sites of overlap that met the
definition of critical habitat (i.e., areas that contain essential
features that may require special management or protection) from the
Hawaiian monk seal critical habitat designation. Sites identified by
the USMC subject to the MCBH INRMP (MCBH-KB and the 500-yard (457.2 m)
buffer zone in marine waters surrounding the Mokapu Peninsula, Oahu;
MCTAB Waimanalo, Oahu; and Puuloa Training Facility, on the Ewa coastal
plain, Oahu) are not eligible for critical habitat in accordance with
4(a)(3) of the ESA (See Military Areas Ineligible for Designation
(4(a)(3) determinations) above).
Consultation and discussion with the Navy and USMC resulted in the
identification of 13 areas (See Table 2) that may warrant exclusion
based on national security impacts. As in the analysis of economic
impacts, we weighed the benefits of exclusion (i.e., the impacts to
national security that would be avoided) against the benefits of
designation. The Navy and USMC provided information regarding the
activities that take place in each area, and they assessed the
potential for a critical habitat designation to adversely affect their
ability to conduct operations, tests, training, and other essential
military activities. The possible impacts to national security
summarized by both groups included restraints and constraints on
military operations, training, research and development, and
preparedness vital for combat operations for around the world.
The primary benefit of exclusion is that the DOD would not be
required to consult with NMFS under section 7 of the ESA regarding DOD
actions that may affect critical habitat, and thus potential delays or
costs associated with conservation measures for critical habitat would
be avoided. To assess the benefits of exclusion, we evaluated the
intensity of use of the particular area by the DOD, the likelihood that
DOD actions in the particular area would affect critical habitat and
trigger an ESA section 7 consultation, and the potential conservation
measures that may be required and that may result in delays or costs
that affect national security. We also considered the level of
protection provided to critical habitat by existing DOD safeguards,
such as regulations to control public access and use of the area
[[Page 32045]]
and other means by which the DOD may influence other Federal actions in
the particular area.
The primary benefit of designation is the protections afforded
Hawaiian monk seals under the ESA section 7 critical habitat
provisions. To evaluate the benefit of designation for each particular
area, we considered what is known regarding Hawaiian monk seal use of
the particular area, the size of the particular area when compared to
the specific area and the total critical habitat area, and the
likelihood that other Federal actions occur in the area that may affect
critical habitat and trigger a consultation.
As discussed in ``The Benefits of Designation'' section, the
benefits of designation may not be directly comparable to the benefits
of exclusion for purposes of conducting the section 4(b)(2) analysis,
because neither may be fully quantified. We identified that Hawaiian
monk seal use of the area and conservation need for the habitat should
be most heavily considered against the impacts (i.e., project
modification costs) that the proposed designation, if finalized, may
have on DOD activities; however, all factors discussed played a role in
the decision. Table 2 outlines the determinations made for each
particular area identified and the factors that weighed significantly
in that process.
Table 2--Summary of the Assessment of Particular Areas Requested for Exclusion by the DOD Based on Impacts on
National Security. Listed for Each Particular Area Are: DOD Site and Agency Requesting Exclusion; the Specific
Area That the Particular Area Occurs in; Whether Exclusion Based on National Security Impacts Is Warranted, and
the Weighing Factors Found To Be Significant in Making the Determination
----------------------------------------------------------------------------------------------------------------
Overlapping specific
DOD site (size mi\2\, or km\2\) and area (size mi\2\, or Exclude(?) Significant weighing
agency km\2\) factors
----------------------------------------------------------------------------------------------------------------
(1) Kaula Island and the 3-mile Area 11--Kaula (39 No..................... Site was determined to be
danger zone (20 mi\2\, or 52 mi\2\, 101 or km\2\). highly used by Hawaiian
km\2\)--Navy. monk seals. Navy
activities are not likely
to impact essential
features given current
protocols; therefore,
there is no impact to
national security that
can be avoided through
exclusion.
(2) Niihau, including all waters 0- Area 12--Niihau (200 No..................... Area requested for
12 nmi offshore (200\+\ mi\2\, or mi\2\, or 518 km\2\). exclusion included the
518\+\ km\2\)--Navy. entire specific area
which is currently the
highest used area by
Hawaiian monk seals in
the MHI and therefore
very important to monk
seal conservation. The
benefits of designation
outweigh the benefits of
exclusion.
(3) Kingfisher Underwater Training Area 12--Niihau (200 Yes.................... The site is located near
Area off of Niihau (2 mi\2\, or 5 mi\2\, or 518 km\2\). an important area used by
km\2\)--Navy. monk seals; however, the
particular area requested
is relatively small in
comparison to the
specific area proposed
for designation. Navy
protocol currently
provides some protection
for seals utilizing this
habitat. Impacts to
national security may
result from section 7
consultations specific to
the construction and
maintenance of the
training range. The
benefits of exclusion
outweigh the benefits of
designation for this
area.
(4) PMRF, Main Base at Barking Area 13--Kauai (90 mi, Yes.................... Impacts from amphibious
Sands, Kauai (8 mi, or 13 km)-- or 145 km). landings may impact
Navy. essential features;
therefore, national
security impacts may
result from section 7
consultations. Although
the area is used by monk
seals, current protocols
in place and base
regulations provide
protections for monk
seals in this area. The
benefits of exclusion
outweigh the benefits of
designation for this
area.
(5) PMRF Offshore areas (including: Area 13--Kauai (326 Yes.................... Essential features may be
PMRF restricted area, Barking mi\2\, or 844 km\2\). impacted by the
Sands Tactical Underwater Range installation of
(BARSTUR), and the Shallow Water hydrophones across the
Training Range (SWTR)) (99 mi\2\, range; therefore,
or 256 km\2\)--Navy. national security impacts
may result from section 7
consultations. Although
the area is used by monk
seals, current protocols
in place provide
protections for monk
seals in this area. The
benefits of exclusion
outweigh the benefits of
designation for this
area.
(6) Barbers Point/Kalaeloa Navy Area 14--Oahu (697 No..................... No activities were
retained areas--White Plains (15 mi\2\, or 1,805 demonstrated for this
acres, or 6 hectares) and Nimitz km\2\). area; therefore there is
(21 acres, or 8.5 hectares) no impact to national
Beaches--Navy. security that could be
avoided through
exclusion.
(7) Naval Defensive Sea Area (NDSA) Area 14--Oahu (697 Yes.................... Essential features may be
and Puuloa Underwater Training mi\2\, or 1,805 impacted by activities on
Range (<20 mi\2\, or 52 km\2\)-- km\2\). site, and the location
Navy. provides a training area
that is only found in one
other location
nationwide. National
security impacts may
result from section 7
consultations. Area is
not highly used by
Hawaiian monk seals. The
benefits of exclusion
outweigh the benefits of
designation.
(8) Commercial Anchorages B, C, D; Area 14--Oahu (697 No..................... Area is open for
(1 mi\2\, or 2.6 km\2\)--Navy. mi\2\, or 1,805 commercial anchorage
km\2\). purposes. It is unlikely
that Navy activities will
impact essential features
at this site; therefore,
there is no impact to
national security that
may be avoided through
exclusion.
[[Page 32046]]
(9) Fleet Operational Readiness Area 14--Oahu (697 No..................... It is unlikely that Navy
Accuracy Check Site (FORACS) (12 mi\2\, or 1,805 activities will impact
mi\2\, 31 km\2\)--Navy. km\2\). essential features at
this site; therefore,
there is no impact to
national security that
could be avoided through
exclusion. Area is
utilized frequently by
Hawaiian monk seals.
(10) Barbers Point Underwater Range Area 14--Oahu (697 No..................... Navy activities at this
and Ewa Training Minefield (9 mi\2\, or 1,805 site may impact the
mi\2\, or 23 km\2\)--Navy. km\2\). essential features of
critical habitat;
however, this area is
highly used by Hawaiian
monk seals and important
to monk seal
conservation. The
benefits of designation
outweigh the benefits of
exclusion.
(11) Marine Corps Training Area Area 14--Oahu (697 No..................... It is unlikely that Navy
Bellows Offshore--Navy and USMC mi\2\, or 1,805 activities will impact
(size not estimated). km\2\). essential features at
this site; therefore,
there is no impact to
national security that
would be avoided through
exclusion.
(12) Shallow Water Minefield Sonar Area 15--Maui Nui Yes.................... Although the site is
Training Range off Kahoolawe (4 (2,510 mi\2\, or located near an important
mi\2\, or 10 km\2\)--Navy. 6,500 km\2\). area used by monk seals,
the area requested is
relatively small in
comparison to the
specific area. Navy
protocol currently
provides some protection
for seals utilizing this
habitat. Impacts to
national security may
result from section 7
consultations specific to
the construction and
maintenance, which may
impact essential
features. The benefits of
exclusion outweigh the
benefits of designation
for this area.
(13) Kahoolawe Danger Zone (68 Area 15--Maui Nui No..................... Area is well used by
mi\2\, or 176 km\2\)--Navy. (2,510 mi\2\, or Hawaiian monk seals and
6,500 km\2\). supports pupping and
nursing areas. Activities
demonstrated for this
area are a matter of
public safety; therefore,
there is no impact to
national security that
would be avoided through
exclusion.
----------------------------------------------------------------------------------------------------------------
Other Relevant Impacts
Section 4(b)(2) of the Act also allows for the consideration of
``other relevant impacts'' associated with the designation of critical
habitat. Comments received following the 90-day finding indicated that
both the NPS and the USFWS anticipated impacts as a result of the
designation. Both agencies were contacted in preparation for the
proposed rule with information regarding the areas under consideration
for the revision to Hawaiian monk seal critical habitat and asked to
identify relevant impacts to their agencies, as well as to identify
measures or protections that were in place to protect the Hawaiian monk
seal or the essential features. The NPS concluded that a request for
exclusion was not necessary, after corresponding with NMFS regarding
impacts of the designation. Exclusion was requested by the USFWS for
Sand Island at Midway Islands. USFWS identified economic and
administrative burdens from the proposed designation and stated that
the designation is an unnecessary burden since the Papahanaumokuakea
Marine National Monument already afforded the Hawaiian monk seal the
highest levels of protection and conservation. The USFWS did not
quantify economic burdens but did identify that administrative
requirements would not only have economic impacts but would detract
from staff time, which in turn would detract from conservation
initiatives being properly overseen and implemented on site.
As with the national security exclusions, the primary benefit of
excluding Sand Island is that the USFWS organization would not be
required to consult with NMFS under section 7 of the ESA regarding
actions that may affect critical habitat, and thus potential delays or
costs associated with conservation measures for critical habitat would
be avoided. To assess the benefits of excluding Sand Island, we
evaluated the relative proportion of the area requested for exclusion,
the intensity of use of the area, and the likelihood that actions on
site will destroy or adversely modify habitat requiring additional
section 7 delays, costs, or burdens. We also considered the likelihood
of consultation with the agency in this area and the level of
protection provided to critical habitat by existing USFWS safeguards.
The primary benefit of designation is the protections afforded
Hawaiian monk seals under the ESA section 7 critical habitat
provisions. To evaluate the benefit of designation for each particular
area, we considered what is known regarding Hawaiian monk seal use of
the particular area, the size of the particular area compared to the
specific area and the total critical habitat area, and the likelihood
that other Federal actions may occur in the area that may affect
critical habitat and trigger a consultation.
In reviewing this information, we found that Sand Island at Midway
Islands provides habitat with the essential features of preferred haul-
out areas and preferred pupping areas in the northwestern end of the
chain. These features are very important to the declining population of
the NWHI. USFWS acknowledged that its management plans provide
protections for Hawaiian monk seals from disturbance, but revealed no
additional plans that may impact the essential features of Hawaiian
monk seal critical habitat. In considering the above listed factors, we
were not able to identify any activities that the USFWS wished to
engage in at this site that would impact the essential features of
Hawaiian monk seal critical habitat. We acknowledge that consultation
of activities on site will continue to be necessary due to listing of
the species but cannot
[[Page 32047]]
anticipate additional burdens on the agency without the identification
of activities that may generate impacts to the essential features.
Thus, there appears to be no benefit of exclusion. At this time, and
with the present information, we do not recommend Sand Island at Midway
Islands for exclusion. We solicit information from the public regarding
any additional areas that may overlap with and may warrant exclusion
from critical habitat for Hawaiian monk seals (see ``Public Comments
Solicited'').
Critical Habitat Designation
This rule proposes to designate approximately 11,140 mi\2\ (28,853
km\2\) of habitat throughout the Hawaiian Archipelago within the
geographical area presently occupied by the Hawaiian monk seal. These
critical habitat areas contain physical or biological features
essential to the conservation of the species that may require special
management considerations or protection. This rule proposes to exclude
from the designation the following areas: Kingfisher Underwater
Training area in marine areas off the northeast coast of Niihau;
Pacific Missile Range Facility Main Base at Barking Sands, Kauai;
Pacific Missile Range Facility Offshore Areas in marine areas off the
western coast of Kauai; the Naval Defensive Sea Area and Puuloa
Underwater Training Range in marine areas outside Pearl Harbor, Oahu;
and the Shallow Water Minefield Sonar Training Range off the western
coast of Kahoolawe in the Maui Nui area. Based on our best scientific
knowledge and expertise, we conclude that the exclusion of these areas
will not result in the extinction of the species, nor impede the
conservation of the species.
Lateral Extent of Critical Habitat
The lateral extent of the proposed critical habitat designation
offshore is defined by the 500-m depth contour relative to the line of
mean lower low water (MLLW) and shoreward to 5 m inland (in length)
from the shoreline described by the upper reaches of the wash of the
waves, other than storm or seismic waves, at high tide during the
season in which the highest wash of the waves occurs, usually evidenced
by the edge of vegetation growth or the upper limit of debris (except
those areas that are indicated with boundaries as not included in the
designation listed with the identified areas and manmade structures
existing within the boundaries prior to the effective date of the
rule). The textual descriptions of critical habitat in the section
titled ``226.221 Critical habitat for the Hawaiian monk seal (Monachus
schauinslandi)'' are the definitive source for determining the critical
habitat boundaries. The overview maps provided in ``226.221 Critical
habitat for the Hawaiian monk seal (Monachus schauinslandi)'' are
provided for general guidance purposes only and not as a definitive
source for determining critical habitat boundaries. As discussed in
previous critical habitat designations, human activities that occur
outside of designated critical habitat can destroy or adversely modify
the essential features of these areas. This designation will help to
insure that Federal agencies are aware of the impacts that activities
occurring outside of the proposed critical habitat area (e.g., coastal
development, activities that generate water pollution) may have on
Hawaiian monk seal habitat.
Effects of Critical Habitat Designation
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, 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. When a species is listed or critical
habitat is designated, Federal agencies must consult with us on any
agency action 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 evaluate the agency action to determine whether the
action may adversely affect listed species or critical habitat and
issue our finding in a biological opinion. 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 are defined in 50 CFR 402.02 as
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 at 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 re-initiation of
consultation or conference with us on actions for which formal
consultation has been completed, if those actions may affect designated
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., a
section 10(a)(1)(B) permit from NMFS) or some other Federal action,
including funding (e.g., Federal Highway Administration (FHA) or
Federal Emergency Management Agency (FEMA) funding). ESA section 7
consultation would not be required for Federal actions that do not
affect listed species or critical habitat, nor for actions on non-
Federal and private lands that are not carried out, funded, or
authorized by a Federal agency.
Activities That May Be Affected
ESA section 4(b)(8) requires, to the maximum extent practicable, in
any proposed regulation to designate critical habitat, an evaluation
and brief description of those activities (whether public or private)
that may adversely modify such habitat or that may be affected by such
designation. A wide variety of activities may affect Hawaiian monk seal
critical habitat and may be subject to the ESA section 7 consultation
processes when carried out, funded, or authorized by a Federal agency.
The activities most likely to be affected by this critical habitat
designation once finalized are: (1) In-water and coastal construction;
(2) dredging and disposal of dredged material; (3) energy development
(renewable energy projects); (4) activities that generate water
pollution; (5) aquaculture ; (6) fisheries; (7) oil spills and vessel
groundings response activities; and (8) military activities. Private
entities may also be affected by this critical habitat designation if a
Federal permit is required, Federal funding is received, or the entity
is involved in or receives benefits from a Federal project. These
activities would need to be evaluated with respect to their potential
to destroy or adversely modify critical habitat. Changes to the actions
to minimize or avoid destruction or adverse modification of designated
critical habitat may result in changes to some activities. Please see
the draft Economic Analysis Report (ECONorthwest, 2010) for more
details
[[Page 32048]]
and examples of changes that may need to occur in order for activities
to minimize or avoid destruction or adverse modification of designated
critical habitat. Questions regarding whether specific activities would
constitute destruction or adverse modification of critical habitat
should be directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION
CONTACT).
References Cited
A complete list of all references cited in this rule making may be
found on our Web site at http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html, and is available upon request from the NMFS (see
ADDRESSES).
Public Comments Solicited
To ensure the final action resulting from this proposal will be as
accurate and effective as possible, we solicit comments and suggestions
from the public, other concerned governments and agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. Specifically, public comments are sought
concerning: (1) Information regarding potential impacts of designating
any particular area, including the types of Federal activities that may
trigger an ESA section 7 consultation and the possible modifications
that may be required of those activities as a result of section 7
consultation; (2) information regarding the benefits of excluding
particular areas from the critical habitat designation; (3) current or
planned activities in the areas proposed for designation and their
possible impacts on proposed critical habitat; (4) impacts to Native
Hawaiian organizations resulting from the designation or Native
Hawaiian activities that may be affected in areas other than those
specifically owned by the organization; (5) additional information
regarding the threats associated with global climate change and known
impacts to Hawaiian monk seal critical habitat and/or Hawaiian monk
seal essential features (6) any foreseeable economic, national
security, Tribal, or other relevant impacts resulting from the proposed
designations. With regard to these described impacts, we request that
the following information be provided to inform our ESA section 4(b)(2)
analysis: (1) A map and description of the affected area (e.g.,
location, latitude and longitude coordinates to define the boundaries,
extent into waterways); (2) a description of activities that may be
affected within the area; (3) a description of past, ongoing, or future
conservation measures conducted within the area that may protect
Hawaiian monk seal habitat; and (4) a point of contact.
You may submit your comments and materials by any one of several
methods (see ADDRESSES). The proposed rule, maps, references, and other
materials relating to this proposal can be found on our Web site at
http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html on the Federal
eRulmaking Portal at http://www.regulation.gov, or can be made
available upon request. We will consider all comments and information
received during the comment period for this proposed rule in preparing
the final rule.
Public Hearings
Regulations at 50 CFR 424.16(c)(3) require the Secretary to
promptly hold at least one public hearing if any person requests one
within 45 days of publication of a proposed rule to designate critical
habitat. Requests for a public hearing must be made in writing (see
ADDRESSES) by August 16, 2011. 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 specific hearing locations and times will
also be posted on our Web site at http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html. These hearings provide the opportunity for
interested individuals and parties to comment, exchange information and
opinions, and engage in a constructive dialogue concerning this
proposed rule. We encourage the public's involvement in such ESA
matters.
Classification
Information Quality Act and Peer Review
On December 16, 2004, the Office of Management and Budget (OMB)
issued its Final Information Quality Bulletin for Peer Review
(Bulletin). The Bulletin was published in the Federal Register on
January 14, 2005 (70 FR 2664), and went into effect on June 16, 2005.
The primary purpose of the Bulletin is to improve the quality and
credibility of scientific information disseminated by the Federal
government by requiring peer review of ``influential scientific
information'' and ``highly influential scientific information'' prior
to public dissemination. Influential scientific information is defined
as ``information the agency reasonably can determine will have or does
have a clear and substantial impact on important public policies or
private sector decisions.'' The Bulletin provides agencies broad
discretion in determining the appropriate process and level of peer
review. Stricter standards were established for the peer review of
``highly influential scientific assessments,'' defined as information
whose ``dissemination could have a potential impact of more than $500
million in any one year on either the public or private sector or that
the dissemination is novel, controversial, or precedent-setting, or has
significant interagency interest.'' The draft Biological Report (NMFS,
2010a) and draft Economic Analysis report (ECONorthwest, 2010)
supporting this rule proposing to designate critical habitat for the
Hawaiian monk seal are considered influential scientific information
and subject to peer review. These two reports were distributed to three
independent reviewers for review before the publication date of this
proposed rule. The peer reviewer comments will be compiled into a peer
review report to be made available to the public at the time the
Hawaiian monk seal critical habitat designation is finalized.
Regulatory Planning and Review (E.O. 12866)
This proposed rule has been determined to be significant for
purposes of E.O. 12866. A draft Economic Analysis report and draft ESA
section 4(b)(2) report (NMFS, 2010b) have been prepared to support the
exclusion process under section 4(b)(2) of the ESA and our
consideration of alternatives to this rulemaking as required under E.O.
12866. The draft Economic Analysis report (ECONorthwest, 2010) and
draft ESA section 4(b)(2) report (NMFS, 2010b) are available on the
Pacific Islands Region Web site at http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html, on the Federal eRulemaking Web site at http://www.regulations.gov, or upon request (see ADDRESSES).
Regulatory Flexibility Act
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). An initial
regulatory flexibility analysis (IRFA) has been prepared, which is
included as
[[Page 32049]]
Appendix C to the draft 4(b)(2) report (NMFS, 2010b). This document is
available upon request (see ADDRESSES), via our Web site at http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html or via the Federal
eRulemaking Web site at http://www.regulations.gov.
We identified the impacts to small businesses by considering the
eight activities that were identified as most likely impacted by the
designation: (1) In-water and coastal construction; (2) dredging and
disposal of dredged material; (3) energy development (renewable energy
projects); (4) activities that generate water pollution; (5)
aquaculture; (6) fisheries; (7) oil spills and vessel groundings
response activities; and (8) military activities. Due to the inherent
uncertainty involved in predicting possible economic impacts that could
result from future consultations, we acknowledge that other
unidentified impacts may occur, and we invite public comment on those
impacts. As discussed in the ``Benefits of Exclusion Based on Economic
Impacts and Proposed Exclusions'' section of this proposed rule, we
were not able to find sufficient information to accurately monetize the
estimated economic benefits of exclusion beyond the administrative
costs of the ESA section 7 consultation, and found overall that
administrative economic costs of the designation appear to be low.
Activities most likely to be impacted by this rule, if finalized as
proposed, include construction projects happening in-water or along the
coastline that overlap with the proposed designation. In reviewing
impacts to small businesses, we recognized that impacts may result from
actions that a small business carries out within the boundaries of the
proposed critical habitat areas that are permitted by the Federal
Government, or funded by the Federal Government. In both cases the
small business may be responsible for bearing the cost of project
modifications or administrative work resulting from a section 7
consultation. In addition, small businesses may be impacted indirectly
if the company's earnings are dependent on Federal actions that undergo
section 7 consultations as a result of the designation (e.g.,
contractors that are hired to carry out Federal actions). Ideally we
would be able to monetize these potential impacts, but insufficient
information is available to determine the extent, scope, and location
of activities that may be carried out by small businesses in the areas
of overlap or to what extent small businesses are dependent on earnings
from Federal actions that may undergo section 7 consultation within the
areas of the proposed designation. The inability to identify future
projects in the area of overlap with the proposed designation may be in
part because most projects in the MHI that are subject to the
consultation requirements of ESA tend to occur in highly developed
areas, and these areas were not included in the designation due to the
lack of, or poor quality of, essential features (e.g. Pearl Harbor).
Thus, many projects in the planning stages may still only overlap with
areas not included in the designation. Additionally, the full extent of
impacts may not yet be realized because there is currently no critical
habitat designation in the marine environment of the MHI, and,
therefore, no history with which to predict those impacts due to
inexperience in dealing with marine critical habitat designations in
the MHI.
In accordance with the requirements of the RFA, as amended, this
analysis considered various alternatives to the critical habitat
designation for the Hawaiian monk seal. The alternative of not
designating critical habitat for the Hawaiian monk seal was considered
and rejected because such an approach does not meet the legal
requirements of the ESA. We considered the alternative of designating
all specific areas (i.e., no areas excluded); however, in some cases
the benefits of excluding particular areas based on national security
impacts outweighed the benefits of including them in the designation.
Thus, we also considered the alternative of designating all specific
areas, but excluding particular areas based on the impacts to national
security. This alternative may help to reduce the indirect impact to
small businesses that are economically involved with military
activities in these areas; however, there is insufficient information
to monetize the benefits of these exclusions at this time. In
conclusion, we were unable to determine significant economic impacts
(NMFS, 2010b) based on this designation; and, current information does
not suggest that small businesses will be disproportionately affected
by this designation. We solicit additional information regarding the
impacts to small businesses that may result from this proposed
designation, and we will consider any additional information received
in developing our final determination to designate or exclude areas
from critical habitat for the Hawaiian monk seal.
Clarity of the Rule
Executive Order (E.O.) 12866 requires each agency to write
regulations and notices that are easy to understand. We invite-your
comments on how to make this proposed rule easier to understand,
including answers to questions such as the following: (1) Are the
requirements in the rule clearly stated? (2) Does the rule contain
jargon that interferes with its clarity? (3) Does the format of the
rule (grouping and order of section, use of headings, paragraphing,
etc.) aid or reduce its clarity? (4) Would the rule be easier to
understand if it were divided into more (but shorter) sections? (5) Is
the description of the rule in SUPPLEMENTARY INFORMATION section of the
preamble helpful in understanding the rule? (6) What else could we do
to make the rule easier to understand? You may submit comments on how
we could make this proposed rule easier to understand by any one of
several methods (see ADDRESSES).
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act, we make the
following findings:
(A) This proposed rule will not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local,
Tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
The designation of critical habitat does not impose an enforceable duty
on non-Federal government entities or private parties. The only
regulatory effect of a critical habitat designation is that Federal
agencies must insure that their actions do not destroy or adversely
modify critical habitat under ESA section 7. Non-Federal entities who
receive funding, assistance, or permits from Federal agencies or
otherwise require approval or authorization from a Federal agency for
an action may be indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program; however,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
to State governments.
(B) Due to the prohibition already in place against take of the
Hawaiian monk seal both within and outside of the designated areas, we
do not anticipate that this proposed rule will significantly or
uniquely affect small governments. As such, a Small Government Agency
Plan is not required.
Takings
Under E.O. 12630, Federal agencies must consider the effects of
their actions
[[Page 32050]]
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 that
substantially affect its value or use. In accordance with E.O. 12630,
this proposed rule does not have significant takings implications. A
takings implication assessment is not required. The designation of
critical habitat generally affects only those activities and projects
that are authorized, funded, or carried out by a Federal agency. This
proposed rule would not increase or decrease the current restrictions
on private property concerning take of Hawaiian monk seals, nor do we
expect the proposed critical habitat designation to affect property
values, or impose additional burdens on land use or landowner actions
that do not require Federal funding or permits. Additionally, the
proposed critical habitat designation does not preclude the development
of Habitat Conservation Plans and issuances 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
Hawaiian monk seals.
Federalism
E.O. 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). Pursuant to the
Executive Order on Federalism, E.O. 13132, the Assistant Secretary for
Legislative and Intergovernmental Affairs will provide notice of the
proposed action and request comments from the governor of the State of
Hawaii.
Civil Justice Reform
In accordance with E.O. 12988, the Department of Commerce has
determined that this proposed rule does not unduly burden the judicial
system and meets the requirements of section 3(a) and 3(b)(2) of the
Order. We are proposing critical habitat in accordance with the
provisions of the ESA. This proposed rule uses standard property
descriptions and identifies the essential features within the
designated areas to assist the public in understanding the habitat
needs of the Hawaiian monk seal.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain new or revised information
collections that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act. This proposed rule will
not impose recordkeeping or reporting requirements on State or local
governments, individuals, businesses or organizations. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act (NEPA)
We have determined that an environmental analysis as provided for
under the NEPA 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).
Coastal Zone Management Act of 1972 (CZMA)
The CZMA emphasizes the primacy of state decision-making regarding
the coastal zone. Section 307 of the CZMA (16 U.S.C. 1456), called the
Federal consistency provision, is a major incentive for states to join
the national coastal management program and is a powerful tool that
states use to manage coastal uses and resources and to facilitate
cooperation and coordination with Federal agencies.
Federal consistency is the CZMA requirement where Federal agency
activities that have reasonably foreseeable effects on any land or
water use or natural resource of the coastal zone (also referred to as
coastal uses or resources and coastal effects) must be consistent to
the maximum extent practicable with the enforceable policies of a
coastal state's Federally approved coastal management program. We have
determined that this proposed critical habitat designation is
consistent to the maximum extent practicable with the enforceable
policies of the approved Coastal Zone Management Program of Hawaii.
This determination will be submitted for review by the Hawaii Coastal
Zone Management Program.
Government to Government Relationship 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 towards 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. E.O.
13175--Consultation and Coordination with Indian Tribal Governments--
outlines the responsibilities of the Federal Government in matters
affecting Tribal interests. Federally recognized Tribe means an Indian
or Alaska Native Tribe or community that is acknowledged as an Indian
Tribe under the Federally Recognized Indian Tribe List Act of 1994, 25
U.S.C. 479a. In the list published annually by the Secretary, there are
no Federally recognized Tribes in the State of Hawaii (74 FR 40218;
August 11, 2009). Therefore, while we value information on the effects
of this rule on the interests of Native Hawaiians, Native Hawaiian
lands are not Tribal lands for purposes of the requirements of the
President's Memorandum or the Department Manual. However, we recognize
that Native Hawaiian organizations have the potential to be impacted by
Federal regulations and, as such, that consideration of these impacts
may be evaluated as other relevant impacts from the designation. We
have opened communication with some Native Hawaiian organizations, and
at this time have not been made aware of anticipated impacts resultant
from the designation. We seek comments regarding areas of overlap with
the designation that may warrant exclusion from critical habitat for
the Hawaiian monk seal. We also seek information from affected Native
Hawaiian organizations concerning other Native Hawaiian activities that
may be affected in areas other than those specifically owned by the
organization (e.g. marine areas)(see Public Comments Solicited and
ADDRESSES).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: May 24, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, this rule proposes to
amend part 226, title 50 of the Code of Federal Regulations as set
forth below:
[[Page 32051]]
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
2. Add Sec. 226.221, to read as follows:
Sec. 226.221 Critical habitat for the Hawaiian monk seal (Monachus
schauinslandi).
Critical habitat is designated for Hawaiian monk seals 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) Critical habitat boundaries.
(1) Northwestern Hawaiian Islands: The Hawaiian monk seal critical
habitat areas located in the Northwestern Hawaiian Islands include all
beach areas, sand spits, and islets, including all beach crest
vegetation to its deepest extent inland, lagoon waters, inner reef
waters, and ocean waters out to the 500-m depth contour around the
following (except those areas that have been identified as not included
in the designation):
(i) Kure Atoll--center coordinates: 28[deg]25'11.00'' N./
178[deg]19'45.00'' W.
(ii) Midway Islands--center coordinates: 28[deg]14'12.00'' N./177
22'06.00'' W. (Midway Harbor is not included in the designation. The
boundaries of Midway Harbor were delineated to incorporate the inner
harbor and hardened shorelines of the harbor. The polygon includes the
area bounded by the point at the seaward edge of the northern
breakwater at the harbor entrance (28[deg]12'44.31'' N./
177[deg]21'35.64'' W.) then north along the breakwater to where the
breakwater meets the coastline at 28[deg]12'54.06'' N./
177[deg]21'38.69'' W. then west to 28[deg]12'56.63'' N./
177[deg]22'18.42'' W. then south to 28[deg]12'30.88'' N./
177[deg]22'23.89'' W. then east to 28[deg]12'32.68'' N./
177[deg]21'44.63'' W. then north to the seaward edge of the southern
breakwater at the harbor entrance (28[deg]12'39.99'' N./
177[deg]21'38.04'' W.) and a line back to meet the seaward edge of the
northern breakwater at Midway Harbor's entrance.)
(iii) Pearl and Hermes Reef--center coordinates: 27[deg]50'37.000''
N./175[deg]50'32.00'' W.
(iv) Lisianski Island--center coordinates: 26[deg]03'49.00'' N./
173[deg]58'00.00'' W.
(v) Laysan Island--center coordinates: 25[deg]46'11.00'' N./
171[deg]43'57.00'' W.
(vi) Maro Reef--center coordinates: 25[deg]25'27.00'' N./
170[deg]35'19.00'' W.
(vii) Gardner Pinnacles--center coordinates: 25[deg]0'00.00'' N./
167[deg]59'55.00'' W.
(viii) French Frigate Shoals--center coordinates: 23[deg]45'31.00''
N./166[deg]14'37.00'' W.
(ix) Necker Island--center coordinates: 23[deg]34'36.00'' N./
164[deg]42'01.00'' W.
(x) Nihoa Island--center coordinates: 23[deg]03'23.00'' N./
161[deg]55'18.99'' W.
(2) Main Hawaiian Islands: Hawaiian monk seal critical habitat
areas surrounding the following islands listed below are defined in the
marine environment by a seaward boundary that extends from the 500-m
depth contour line (relative to mean lower low water), through the
water's edge into the terrestrial environment where the inland boundary
extends 5 m inland (in length) from the shoreline described by the
upper reaches of the wash of the waves, other than storm or seismic
waves, at high tide during the season in which the highest wash of the
waves occurs, usually evidenced by the edge of vegetation growth or the
upper limit of debris (except those areas that are indicated with
boundaries as not included in the designation listed with each
identified area). Terrestrial areas not included have a seaward
boundary of a line that marks mean lower low water between the two
identified points.
(i) Kaula Island.
(ii) Niihau Island.
(iii) Kauai Island--Areas identified as not included in the
designation of this specific area are defined as the following
locations and are delineated by the identified boundaries: Hanalei Bay
delineated by all terrestrial coastline areas located between the
Makahoa Point (22[deg]12'49.48'' N./159[deg]31'01.82'' W.) east to
22[deg]12'56.10'' N./159[deg]29'52.82'' W. and all waters located
inshore of a line drawn between those two points; Kikiaola Harbor
delineated by all terrestrial coastline areas from 21[deg]57'34.92''
N./159[deg]41'36.36'' W. east to 21[deg]57'28.89'' N./
159[deg]41'34.91'' W. and all harbor waters located inshore of the line
drawn between the seaward edge of western breakwater at the harbor's
entrance (21[deg]57'28.58'' N./159[deg]41'36.57'' W.) and the seaward
edge of eastern breakwater at the harbor's entrance (21[deg]57'27.19''
N./159[deg]41'41.34'' W.); Kilauea Point Cliff area delineated by all
terrestrial coastlines located between 22[deg]13'50.27'' N./
159[deg]24'07.42'' W. east around to 22[deg]13'50.97'' N./
159[deg]24'05.68'' W.; Na Pali coast cliffs delineated by the mouth of
the Hanakapiai stream (22[deg]12'30.35'' N./159[deg]35'53.00'' W.)
south west to the mouth of the Kalalau Stream (22[deg]10'43.33'' N./
159[deg]39'03.42'' W.); Nawiliwili Harbor delineated as all terrestrial
coastlines between Kukii Point Light (21[deg]57'23.80'' N./
159[deg]20'52.70'' W.) south to where the southern breakwater meets the
shoreline (21[deg]56'54.65'' N./159[deg]21'03.15'' W.) and all waters
inshore of a line drawn from Nawiliwili Harbor Breakwater Light
(21[deg]57'11.68'' N./159[deg]20'54.94'' W.) east to Kukii Point Light
(21[deg]57'23.80'' N./159[deg]20'52.70'' W.) (i.e., the harbor's USCG
defined COLREG line); Hanapepe Bay and Port Allen delineated by all
terrestrial coastlines between the Hanapepe Light (21[deg]53'34.55''
N./159[deg]36'15.55'' W.) east to where the Hanapepe breakwater meets
the shoreline to the east (21[deg]53'54.97'' N./159[deg]35'14.50'' W.)
and all waters inshore of the line drawn from Hanapepe Light
(21[deg]53'34.55'' N./159[deg]36'15.55'' W.) east to Hanapepe Bay
Breakwater (21[deg]53'49.10'' N./159[deg]35'27.25'' W.) (i.e., the
harbor's USCG defined COLREG line); Waikaea Canal delineated by all
terrestrial coastline, structures and waters inshore of the line drawn
from the seaward edge of the southern breakwater at the mouth of the
canal (22[deg]04'14.7'' N./159[deg]18'58.98'' W.) north to the seaward
edge of the northern breakwater at the mouth of the canal
(22[deg]04'16.41'' N./159[deg]18'58.00'' W.); Wailua Canal delineated
as all coastline and waters located inshore of the bridge crossing the
Wailua River or a line drawn between 22[deg]02'41.13'' N./
159[deg]20'11.95'' W. south to 22[deg]02'44.27'' N./159[deg]20'10.93''
W.
(iv) Oahu--Areas identified as not included in the designation of
this specific area are defined as the following locations and are
delineated by the identified boundaries: Pearl Harbor to Kapua Channel
delineated by all terrestrial coastlines between Keahi point
(21[deg]18'57.95'' N./157[deg]58'42.82'' W.) east to eastern edge of
the Kapua channel (21[deg]15'28.77'' N./157[deg]49'07.51'' W.) and all
waters out to depth of the 3 fathoms between the line drawn from Keahi
point (21[deg]18'57.95'' N./157[deg]58'42.82'' W.) to meet the 3 fathom
contour following the 3 fathom contour east to a line drawn from the
eastern edge of the Kapua channel (21[deg]15'28.77'' N./
157[deg]49'07.51'' W.) out to meet the 3 fathom contour ; Haleiwa
Harbor delineated by all terrestrial coastlines between where the
eastern breakwater meets the coastline (21[deg]35'47.44'' N./
158[deg]06'16.15'' W.) west to where the western breakwater meets the
coastline (21[deg]35'42.59 N./158[deg]06'25.19'' W.) and all waters in
the harbor inshore of the line drawn between breakwater Light 6
[[Page 32052]]
(21[deg]35'47.63'' N./158[deg]06'22.42'' W.) and the seaward edged of
the eastern breakwater (21[deg]35'47.44'' N./158[deg]06'16.15'' W.);
Maunalua Bay and Hawaii Kai Harbor delineated as all coastline and
waters located inshore of the line drawn between 21[deg]16'53.22'' N./
157[deg]43'21.77'' W. east to the point 21[deg]15'49.13'' N./
157[deg]42'41.45'' W.; Kalaeloa Barbers Point delineated as all
coastline and waters located inshore of the line drawn between the
harbor's entrance channel Light 6 (21[deg]19'19.07'' N./
158[deg]07'16.08'' W.) north to harbor entrance channel Light 7
(21[deg]19'23.81'' N./158[deg]07'19.82'' W.); Kaneohe Bay delineated as
all coastlines and waters located inshore of the line drawn from
Pyramid Rock Light (21[deg]27'44.12'' N./157[deg]45'48.69'' W.) through
the center of Mokolii Island to the shoreline (21[deg]30'59.27'' N./
157[deg] 50'10.01'' W.) (i.e., the bay's USCG defined COLREG line);
Waianae Small Boat harbor delineated by all coastlines between northern
point where the breakwater meets the coastline 21[deg]27'4.15'' N./
158[deg]11'54.59'' W. south through to the range front light
(21[deg]26'55.57'' N./158[deg]11'46.70'' W.) and all waters inside the
harbor located inshore of the line drawn between the range front light
(21[deg]26'55.57'' N./158[deg]11'46.70'' W.) west to the breakwater
Light 1 described by the USCG at (21[deg]26'50.68'' N./
158[deg]11'48.90'' W.).
(v) Maui Nui--Areas identified as not included in the designation
of this specific area are defined as the following locations and are
delineated by the identified boundaries: Hana wharf and ramp, Maui is
delineated by all terrestrial coastlines from 20[deg]45'18.53'' N./
155[deg]58'56.32'' W. east to 20[deg]45'19.93'' N./155[deg]58'54.12''
W.; Kahului Harbor is delineated by all terrestrial coastline between
where the hardened shoreline meets the beach to the west of the harbor
(20[deg]53'53.05'' N./156[deg]28'47.87'' W.) east to where the hardened
shoreline meets the beach to the east of the harbor (20[deg]53'49.07''
N./156[deg]27'38.84'' W.) and all waters located inshore of the line
drawn between the west breakwater Light 4 (20[deg]54'01.16'' N./
156[deg]28'26.82'' W.) east to the east breakwater Light 3
(20[deg]54'02.36'' N./156[deg]28'17.43'' W.) (i.e., the harbor's USCG
defined COLREG line); Kihei boat ramp, Maui is delineated by all
terrestrial coastlines between 20[deg]42'31.34'' N./156[deg]26'46.95''
W. south to 20[deg]42'27.19'' N./156[deg]26'46.13'' W. and all waters
in the harbor located inshore of the line drawn between
20[deg]42'31.34'' N./156[deg]26'46.95'' W. west to the seaward edge of
the northern point on the breakwater at the harbor entrance
(20[deg]42'30.29'' N./156[deg]26'48.46'' W.); Lahaina harbor, Maui is
delineated by all terrestrial coastlines between 20[deg]52'21.63'' N./
156[deg]40'44.05'' W. south to 20[deg]52'11.67'' N./156[deg]40'38.53''
W. and all waters in the harbor located inshore of the line drawn from
20[deg]52'21.63'' N./156[deg]40'44.05'' W. to the seaward edge of the
breakwater at the harbor entrance (20[deg]52'18.18'' N./
156[deg]40'45.33'' W.); Maalaea Harbor is delineated by all terrestrial
coastlines between where the western hardened shoreline meets the coast
(20[deg]47'23.65'' N./156[deg]30'49.85'' W.) east to where the eastern
hardened shoreline meets the coast (20[deg]47'32.07'' N./
156[deg]30'34.24'' W.) and all waters in the harbor located inshore of
the line drawn from the seaward edge of the west breakwater at the
harbor entrance (20[deg]47'24.74'' N./156[deg]30'39.18'' W.) east to
the seaward edge of the east breakwater at the harbor entrance
(20[deg]47'24.59'' N./156[deg]30'36.41'' W.); Mala wharf and ramp, Maui
is delineated by all hardened structures and coastline between the
point where the hardened structures of the wharf meets the coastline on
the south side of the wharf (20[deg]53'05.20'' N./156[deg]41'12.47''
W.) north to the southern edge of the Kahoma stream (20[deg]53'07.86''
N./156[deg]41'10.78'' W.); Nakalahale cliff region, Lanai is delineated
by all coastline between 20[deg]44'31.86'' N./156[deg]52'46.92'' W.
east to 20[deg]45'05.8458'' N./156[deg]52'00.8214'' W.; Kaholo cliff
region, Lanai is delineated by all coastline between 20[deg]46'40.33''
N./156[deg]59'19.02'' W. south to 20[deg]44'17.52'' N./
156[deg]58'03.36'' W.; Manele Harbor, Lanai is delineated by all
terrestrial coastlines from where the Manele Harbor breakwater meets
the coastline (20[deg]44'29.34'' N./156[deg]53'15.88'' W.) north to
20[deg]44'34.95'' N./156[deg]53'15.45'' W. and all waters located
inshore of a line drawn between the seaward extension of the breakwater
(20[deg]44'30.38'' N./156[deg]53'16.33'' W.) north to 20[deg]44'34.95''
N./156[deg]53'15.45'' W.; Kamalapau Harbor, Lanai is delineated by all
terrestrial coastline between 20[deg]47'29.37'' N./156[deg]59'20.04''
W. south to 20[deg]47'07.94'' N./156[deg]59'21.51'' W.; Haleolono
Harbor, Molokai is delineated by all hardened structures and coastline
between 21[deg]05'13.04'' N./157[deg]15'03.68'' W. east to
21[deg]05'04.43'' N./157[deg]14'54.82'' W. and all waters located
inshore of the line drawn between the seaward edge of the west
breakwater 21[deg]05'01.21'' N./157[deg]14'58.95'' W. east to the
seaward edge of the east breakwater 21[deg]05'04.43'' N./
157[deg]14'54.82'' W.; Kaunakakai Pier, Molokai is delineated by all
terrestrial coastline between 21[deg]05′14.83'' N./
157[deg]01'30.42'' W. east to 21[deg]05'09.12'' N./157[deg]01'23.05''
W.; and Kalaupapa Harbor is delineated by all terrestrial coastline
between 21[deg]11'26.09'' N./156[deg]59'04.76'' W. south to
21[deg]11'23.57'' N./156[deg]59'04.12'' W.
(vi) Hawaii--Areas identified as not included in the designation of
this specific area are defined as the following locations and are
delineated by the identified boundaries: Hilo harbor delineated by all
water inshore of a line drawn from the seaward extremity of the Hilo
Breakwater 265[deg] true (as an extension of the seaward side of the
breakwater) (19[deg]44'34.53'' N./155[deg]04'29.98'' W.) west to the
shoreline 0.2 nautical mile north (19[deg]44'28.74'' N./
155[deg]05'23.80'' W.) of Alealea Point or the harbor's USCG defined
COLREG line and delineated by all terrestrial coastlines between 0.2
nautical mile north (19[deg]44'28.74'' N./155[deg]05'23.80'' W.) of
Alealea Point east to 19[deg]43'55.88'' N./155[deg] 03'01.68'' W.;
Honokohau harbor delineated by all terrestrial coastlines and waters
inshore and inland of the line drawn between the Honokohau entrance
channel Light 3 (19[deg]40'11.52'' N./156[deg]01'37.84'' W.) and the
Honokohau entrance channel Light 4 (19[deg]40'09.41'' N./
156[deg]01'35.90'' W.) Kailua-Kona Wharf delineated by all coastlines
and waters located inshore of the line drawn between 19[deg]38'17.09''
N./155[deg]59'53.05'' W. east to 19[deg]38'17.69'' N./
155[deg]59'39.43'' W.; Kawaihae Harbor all coastlines and hardened
structures located between Kawaihae Light (20[deg]02'29.12'' N./
155[deg]49'58.21'' W.) south to 20[deg]01'42.29'' N./155[deg]49'25.20''
W. and all waters located inshore of the line drawn between Kawaihae
Light (20[deg]02'29.12'' N./155[deg]49'58.21'' W.) and the seaward
extremity of the Kawaihae breakwater Light 6 (20[deg]02'14.21'' N./
155[deg]50'02.00'' W.); Keauhou boat harbor all terrestrial coastlines
between 19[deg]33'39.63'' N./155[deg]57'45.06'' W. east to
19[deg]33'42.89'' N./155[deg]57'42.69'' W.; Mahukona Harbor all
coastlines and structures located between 20[deg]10'59.62'' N./
155[deg]54'03.57'' W. east to 20[deg]11'02.21'' N./155[deg]54'01.99''
W.; and the active lava flow areas along the coastline.
(b) Essential Features: The essential features for the conservation
of the Hawaiian monk seal are:
(1) Areas with characteristics preferred by monk seals for pupping
and nursing. Preferred pupping areas generally include sandy, protected
beaches, which are located adjacent to shallow sheltered aquatic areas.
Terrestrial pupping habitat may incorporate various substrates
including sand, shallow tide-pools, coral rubble, or rocky substrates
as long as these substrates provide accessibility to seals
[[Page 32053]]
for hauling out. Characteristics of preferred sites may also
incorporate areas with low lying vegetation utilized by the pair for
shade or cover.
(2) Shallow, sheltered aquatic areas adjacent to coastal locations
preferred by monk seals for pupping and nursing. Sheltered marine areas
provide protection for the mom and pup pair from predators and extreme
weather events, as well as provide protected habitat necessary for
newly weaned pups to learn to forage. Characteristics of the sheltered
aquatic sites may include reefs, tide pools, gently sloping beaches,
and shelves or coves that provide refuge from storm surges and
predators.
(3) Marine areas from 0 to 500 m in depth preferred by juvenile and
adult monk seals for foraging. Foraging habitat is necessary for the
growth, and viability of all life stages. Foraging habitat may range
from barrier reefs, leeward slopes of reefs and islands, submarine
ridges, nearby seamounts, submerged reefs and banks, and deep coral
beds. Preferred foraging habitat of adult monk seals is characterized
by sand terraces and talus slopes. These habitats provide substrate and
materials for preferred benthic and cryptic prey species to hide.
(4) Areas with low levels of anthropogenic disturbance. Areas with
low levels of anthropogenic disturbance are necessary to prevent the
abandonment of preferred haul-out sites essential for pupping and
nursing, and hauling out.
(5) Marine areas with adequate prey quantity and quality. Food
resources of adequate abundance and safe from contaminants are required
for the growth and survival of all of the life stages of the Hawaiian
monk seal. Prey resources may include a variety of species including
some benthic and offshore teleosts, cephalopods, and crustaceans.
(6) Significant areas used by monk seals for hauling out, resting
or molting. Haul-out sites are generally characterized by sandy
beaches, sand spits, or low shelving reef rocks accessible to seals.
Sites favored by seals may also reflect areas that are remote in nature
or with low levels of human disturbance. Haul out areas provide
necessary habitat for normal behavior, growth, and viability of all
life stages. Critical habitat does not include manmade structures
(e.g., docks, seawalls, piers, fishponds, roads, pipelines) and the
land on which they are located existing within the boundaries on the
effective date of this rule.
(c) Overview maps of Hawaiian monk seal critical habitat follow:
BILLING CODE 3510-22-P
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[FR Doc. 2011-13381 Filed 6-1-11; 8:45 am]
BILLING CODE 3510-22-C