[Federal Register Volume 77, Number 107 (Monday, June 4, 2012)]
[Rules and Regulations]
[Pages 32909-32913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13528]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 120521436-2436-01]
RIN 0648-XA998
Listing Endangered and Threatened Wildlife and Designating
Critical Habitat; 12-Month Determination on How To Proceed With a
Petition To Revise Designated Critical Habitat for the Endangered
Leatherback Sea Turtle
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of 12-month determination.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce our
12-month determination on how to proceed with a petition to revise the
critical habitat designation for leatherback sea turtles pursuant to
the Endangered Species Act (ESA) of 1973, as amended. The petition from
Sierra Club requested a revision of the existing critical habitat
designation for the leatherback sea turtle by adding the coastline and
offshore waters of the Northeast Ecological Corridor in Puerto Rico.
Based on the lack of reasonably
[[Page 32910]]
defined physical or biological features that are essential to the
leatherback turtle's conservation and that may require special
management considerations or protection, we are denying the petitioned
revision.
DATES: The finding announced in this document was made on June 4, 2012.
ADDRESSES: Information and supporting documentation that we used in
preparing this finding are available for public inspection by
appointment, during normal business hours (9:00 a.m.-5:00 p.m. EDT) at
the NMFS, Southeast Regional Office, Protected Resources Division, 263
13th Ave. South, St. Petersburg, FL 33701-5505.
FOR FURTHER INFORMATION CONTACT: Dennis Klemm, NMFS, Southeast Regional
Office, at the address above, by phone (727) 824-5312, or email
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On November 3, 2010, we received a petition from Sierra Club to
revise designated critical habitat for leatherback sea turtles to
include certain marine areas off the coast of Puerto Rico. This was a
second, more detailed petition submitted by Sierra Club following our
finding that a previous petition received on February 23, 2010, did not
present substantial information indicating the petitioned revision may
be warranted (negative 90-day finding; 75 FR 41436, July 16, 2010). On
May 5, 2011, we published a positive 90-day finding concluding that the
second petition presented substantial scientific information indicating
the requested revision may be warranted (76 FR 25660).
ESA Statutory and Regulatory Provisions on Petitions To Revise Critical
Habitat
Critical habitat is defined in section 3(5)(A) of the ESA (16
U.S.C. 1532(3)) as: (1) 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 (2) specific areas outside
the geographical area occupied by the species at the time it is listed
* * * upon a determination by the Secretary [of Commerce] that such
areas are essential for the conservation of the species. Section
4(a)(3)(A)(i) of the ESA (16 U.S.C. 1533(a)(3)(A)(i)) requires that
critical habitat shall be initially designated at the time of listing a
species as threatened or endangered. The ESA further provides that NMFS
may revise critical habitat from time-to-time as appropriate (section
4(a)(3)(A)(ii); 16 U.S.C. 1533(a)(3)(A)(ii)), and allows interested
persons to petition for revisions (section 4(b)). Section 4(b)(3)(D) of
the ESA (16 U.S.C. 1533(b)(3)(D)), requires, to the maximum extent
practicable, that within 90 days of receiving a petition to revise a
critical habitat designation, the Secretary of Commerce (Secretary)
make a finding as to whether the petition presents substantial
scientific information indicating that the revision may be warranted.
The Secretary must then determine how he intends to proceed with the
requested revision within 12 months after receiving the petition and
promptly publish notice of such intention in the Federal Register. In
contrast to the ESA's requirements for findings on petitions to list
species, there are no guidelines or required findings in the ESA or
implementing regulations that govern the substance of NMFS' decision on
how to proceed with a petition to revise critical habitat. Thus, NMFS
has broad discretion in determining when and whether to revise critical
habitat.
Status and Biology of the Leatherback Sea Turtle
On June 2, 1970, the leatherback sea turtle was listed as
endangered throughout its entire range under the Endangered Species
Conservation Act of 1969, a precursor to the ESA (35 FR 8491).
Leatherback sea turtles are the largest living turtles and range
farther than any other sea turtle species. Leatherbacks are widely
distributed throughout the oceans of the world and are found in waters
of the Atlantic, Pacific, and Indian Oceans (Ernst and Barbour, 1972).
The large size of adult leatherbacks and their tolerance of relatively
low temperatures allows them to occur in northern waters such as off
Labrador and in the Barents Sea (NMFS and U.S. Fish and Wildlife
Service (USFWS), 1995). The leatherback is the only sea turtle that
lacks a hard, bony shell. A leatherback's top shell (carapace) is
approximately 1.5 inches (4 cm) thick and consists of leathery, oil-
saturated connective tissue overlaying loosely interlocking dermal
bones. The carapace has seven longitudinal ridges and tapers to a blunt
point. Adult leatherbacks forage in temperate and subpolar regions from
71[deg] N to 47[deg] S latitude in all oceans and undergo extensive
migrations to and from their tropical nesting beaches. Leatherbacks are
deep divers, with recorded dives to depths in excess of 1,000 m (Eckert
et al., 1989; Hays et al., 2004). When the hatchlings leave the nesting
beaches, they move offshore but eventually use both coastal and pelagic
waters. Very little is known about the pelagic habits of hatchlings and
juveniles, and they have not been documented to be associated with
Sargassum areas as are other sea turtle species.
The most recent assessment of leatherback populations in the
Atlantic Ocean divided the rookeries into seven stocks based on nesting
beach: Florida, Northern Caribbean (including Puerto Rico), Western
Caribbean, Southern Caribbean/Guianas, Brazil, West Africa, and South
Africa (Turtle Expert Working Group (TEWG), 2007). The population
estimate derived from the recent assessment for the North Atlantic
stocks ranges between 34,000 and 90,000 adult turtles, including 20,000
to 56,000 adult females (TEWG, 2007). While data for leatherbacks in
much of the Pacific Ocean indicate low population numbers and a
substantial declining trend, the data for leatherbacks in the Atlantic
Ocean indicate an overall trend of stable or increasing abundance. The
data indicate long-term stable or increasing nesting populations for
all of the stocks except West Africa (no long-term data are available)
and the Western Caribbean (a slightly-declining post-1990 trend; TEWG,
2007).
Existing Critical Habitat and the Petition To Revise Leatherback
Critical Habitat
Critical habitat for the leatherback sea turtle was designated by
the USFWS at Sandy Point Beach, St. Croix, U.S. Virgin Islands on March
23, 1978 (43 FR 12050), and subsequently offshore of that beach on
March 23, 1979, by NMFS (44 FR 17710). These designations occurred
without identifying physical or biological features that are essential
to the leatherback's conservation with specificity, as was the case for
other early critical habitat designations. More recently, we designated
critical habitat for leatherback sea turtles in the Pacific Ocean (77
FR 4170; January 26, 2012). This designation includes approximately
16,910 square miles (43,798 square km) stretching along the California
coast from Point Arena to Point Arguello east of the 3,000 meter depth
contour; and 25,004 square miles (64,760 square km) stretching from
Cape Flattery, Washington to Cape Blanco, Oregon east of the 2,000
meter depth contour. The areas designated as critical habitat in the
Pacific Ocean contain a single identified essential biological
feature--the leatherback's specific prey,
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primarily scyphomedusae of the order Semaeostomeae (Chrysaora, Aurelia,
Phacellophora, and Cyanea).
On February 23, 2010, we received a petition from Sierra Club
asking us and the USFWS to revise critical habitat for the endangered
leatherback sea turtle. The portion of the petitioned critical habitat
under our jurisdiction was described as ``the waters off the coastline
of the Northeast Ecological Corridor of Puerto Rico, sufficient to
protect leatherbacks using the Northeast Ecological Corridor, and
extending at least to the hundred fathom contour, or 9 nautical miles
offshore, whichever is further, and including the existing marine
extensions of Espiritu Santo, Cabezas the San Juan, and Arrecifes de la
Cordillera Nature Reserves.'' The petition also stated that these near
shore waters ``provide room for turtles to mate and access the beaches,
and for hatchlings and adults to leave the beaches.'' We found that the
petition did not present substantial scientific information indicating
that the petitioned revision may be warranted, in part because in our
judgment specific qualities were required to explain how the proposed
open space features in the marine environment off of Puerto Rico are
essential to the leatherback's conservation, and how or why the
features themselves may require special management considerations or
protection (75 FR 41,436; July 16, 2010).
Sierra Club submitted a second petition on November 3, 2010, that
contained additional information and incorporated the earlier petition
by reference. The petition describes the area as containing the
following three essential features (which the petitioner refers to as
primary constituent elements (PCEs):
(i) Migratory pathway conditions to allow for safe and timely
passage and access to/from/within nesting sites at San Miguel,
Paulinas, and Convento Beaches in the Northeast Ecological Corridor of
Puerto Rico.
(ii) Migratory pathway conditions and open ocean conditions to
allow for safe and timely passage and access to/from/within breeding
sites offshore of the nesting sites at San Miguel, Paulinas, and
Convento Beaches in the Northeast Ecological Corridor of Puerto Rico.
(iii) Water quality to support normal growth, reproduction,
development, viability, and health.
The petition also describes the minimum requested boundaries of the
critical habitat by the following coordinates:
(1) 65.807[deg] W, 18.425[deg] N
(2) 65.697[deg] W, 18.601[deg] N
(3) 65.489[deg] W, 18.581[deg] N
(4) 65.435[deg] W, 18.400[deg] N
(5) 65.631[deg] W, 18.276[deg] N
The petition states that the identified coastal waters must be
designated as critical habitat to ``provide room for turtles to mate
and access the beaches, and for hatchlings and adults to leave the
beaches.'' The petition also cites our proposed rule to designate
critical habitat for leatherback sea turtles in the Pacific Ocean (75
FR 319; January 5, 2010) as support for the existence of similar
essential features off of Puerto Rico. Specifically, the petition
states that the ``migratory pathway conditions to allow for safe and
timely passage and access to/from/within high use foraging areas'' in
that proposed rule are ``for all intents and purposes, identical to the
area `sufficient to protect leatherbacks using the Northeast Ecological
Corridor' which the Sierra Club identified.'' The petition provides
information on adult leatherback use of the petitioned area consisting
of satellite tagging data from 1998-2003 on 10 turtles. On May 5, 2011,
we published our determination that the second petition presented
substantial information indicating that the revision may be warranted
and that further review was required to determine how to proceed with
the petition (76 FR 25660).
Analysis of the Petition
The ESA provides us with broad discretion with respect to revising
designated critical habitat, allowing us to determine when revisions
are appropriate and how to respond to petitions to revise critical
habitat designations. Consideration of the following threshold factors
was determinative in our decision on how to proceed with Sierra Club's
petition: whether the petitioned areas meet the definition of critical
habitat under the ESA and if so, the potential conservation benefit of
the petitioned revision; and the time required to complete a revision
and how that might impact other ongoing or planned conservation
activities that would also benefit leatherbacks.
We first considered whether the available information for
leatherbacks indicates that areas petitioned contain discernible
physical or biological features that are essential to the leatherback's
conservation and which may require special management considerations or
protection. In other words, we looked at whether the petitioned area
meets the ESA's definition of critical habitat in section 3(5)(A). As
discussed in further detail below, we determined that there is
insufficient information to adequately identify essential features
within the area petitioned for leatherbacks.
Of the three proposed essential features in the petition, two
consist of ``migratory pathway conditions,'' to, from and within
nesting and breeding sites respectively. Sierra Club's argument for
designation of these essential features is based largely on adult
leatherback presence in those waters and general information on what
the leatherbacks may be doing in those areas, rather than on any
specific qualities of the physical and biological features of the
habitat. According to the petitioner, the request for revision
``focuses on protecting migration space, here to allow leatherbacks to
reach the Corridor nesting beaches. Because, as NOAA acknowledges,
leatherbacks appear to mate `in areas adjacent to nesting beaches,' it
also seeks to protect space for these activities.'' The petition then
cites 50 CFR 424.12(b), which states that NMFS ``shall consider sites
for breeding, reproduction, [and] rearing of offspring as critical
habitat.'' As further support for designation of the ``migratory
pathway'' features, the petition draws an analogy with one of the
essential features in the proposed critical habitat designation for
leatherback sea turtles in the Pacific Ocean (75 FR 319,330; January 5,
2010).
In the proposed designation of critical habitat in the Pacific
Ocean, we identified ``migratory pathway conditions to allow for safe
and timely passage and access to/from/within high use foraging areas''
as an essential feature. This essential feature was proposed in
recognition of the fact that in order to complete their life history
leatherback turtles must migrate through the offshore areas to access
nearshore foraging areas. However, the ``migratory pathway conditions''
essential feature was removed from the final rule designating critical
habitat for leatherback sea turtles in the Pacific Ocean (77 FR 4170;
January 26, 2012). We concluded in the final rule that without further
data regarding specific, geographically defined migratory corridors or
the biological or physical features influencing migration to, from and
among forage areas, we could not identify specific migratory conditions
in any area under consideration. Based on a lack of information
received, and on peer review and other comments, we found that there
was insufficient information to produce a reasonable description of the
physical and biological feature(s) itself, allow a reasonable
demonstration of how the feature is essential to conservation of the
leatherback sea turtle, provide an effective basis for identifying
``specific
[[Page 32912]]
areas'' on which the feature is found, or inform our identification of
the types of activities that might presently or prospectively pose a
threat to the feature such that special management consideration or
protections might be necessary. Similar considerations led to our
determination not to proceed with Sierra Club's petition, as discussed
below.
In their petition, Sierra Club identifies an area off of a known
nesting beach, delineated by the presence of tagged individual turtles,
and states the general understanding in the scientific community that
leatherbacks mate off of or near nesting beaches, and therefore
concludes that the space within the delineated area is an essential
feature. We reviewed the available satellite tag data, which
demonstrate that there is some leatherback use of the waters in the
area, as would be expected given the proximity to a nesting beach and
leatherback use of Caribbean waters in general. Sierra Club states that
the data, from 10 total turtles over a 5-year period, show that areas
in the vicinity of nesting beaches constitute areas occupied by turtles
during the internesting period. Sierra Club's comment in the petition
(footnote 9, page 7) that ``nesting and monitoring data show that
leatherbacks shift between the Corridor and Culebra beaches indicating
that ``the utilization area is probably broader than these data
suggests, extending to embrace both regions,'' indicates that
leatherback nest site fidelity is not fixed and that internesting areas
are not confined to the waters immediately off the nesting beach. A
review of satellite tracking research by Godley et al. (2008) and the
studies they cited, demonstrates that leatherback sea turtles, more so
than the hardshell sea turtle species, often use extensive areas
between each nesting activity (Eckert, 2006; Eckert et al., 2006;
Georges et al., 2007; Hitipeuw et al., 2007), thus also raising
questions about the importance of the petitioned area as internesting
habitat. Leatherback internesting movements, in fact, can cover
continental shelf waters over several hundred kilometers (Keinath and
Music, 1993), increasing the difficulty of discerning what physical or
biological features are associated with the interesting stage or
interesting behaviors or needs. Witt et al. (2008) specifically cites
the wide-ranging internesting movements of leatherbacks as a
significant impediment to designing effective marine protected areas or
other protective measures for leatherback rookeries. Most importantly,
while providing occurrence and movement information, the available data
do not indicate whether there are any physical or biological features
in the petitioned areas with specific, defining qualities, parameters
or values that help explain how or why any such features are essential
to the leatherback's conservation. All the space within an area
delineated by the presence of tagged adult turtles does not necessarily
meet the ESA's definition of critical habitat. As with the adult
leatherbacks, the petition does not indicate what specific feature of
the habitat utilized by hatchlings is essential to the leatherback's
conservation and may require special management considerations or
protections, and thus would constitute critical habitat.
As support for the third proposed essential feature, ``water
quality to support normal growth, reproduction, development, viability,
and health,'' the petitioner cites the prevalence of marine debris
ingestion by leatherbacks, along with preliminary data showing that
some leatherbacks have high organochlorine and heavy metal
concentrations, and speculation that low hatching success on a French
Guiana beach may be explained by high levels of organochlorines found
in the sand. While this information indicates that pollutants and
contaminants can cause harm to leatherbacks, it does not describe
parameters of water quality itself that are needed for the conservation
of leatherback sea turtles: we currently lack information to determine
the relative impact and importance of water quality directly on the
behavior, growth or health of leatherback sea turtles. We also note
that habitats used for internesting activities off nesting beaches like
those in the petition are not long-term residence habitats nor do they
serve as important foraging grounds (if any foraging occurs at all),
and therefore the petitioned area would not constitute an area of
significant exposure to such contaminants. While ingestion of marine
debris and potential chemical pollutant accumulation is a recognized
source of adverse impacts to leatherbacks, they are a wide ranging
species. The problem is more one of accumulation throughout their life
cycle, especially from foraging on prey that has accumulated the
pollutants, and not short-term exposure in any given location.
The existence of leatherback sea turtles in the waters of the
Northeast Ecological Corridor is not, in and of itself, a physical and
biological feature essential to the conservation of the species. The
petition does not indicate the specific, identifiable habitat features
of these waters that are essential to the leatherback sea turtle's
conservation, other than their proximity to the nesting beach and the
need for ``room'' to travel, nor does it identify how any such specific
features may require special management considerations or protection.
Given these shortcomings in meeting the ESA's definition of critical
habitat, we also concluded that little conservation benefit to
leatherback sea turtles would result from accepting Sierra Club's
petition; for example, the lack of distinct essential habitat features
would not provide a basis for meaningful analysis of future federal
actions under section 7 of the ESA. In light of these factors, we do
not believe that dedication of ESA program time and resources to
further work on Sierra Club's petition is appropriate. Further work on
this petition would divert resources from ongoing work expected to
provide significant benefits to sea turtle species including
leatherbacks, such as ongoing scoping and rulemaking to reduce turtle
capture and mortality in a variety of fisheries.
How We Intend To Proceed With the Petitioned Revision of Critical
Habitat
Based on our review as summarized above, we have decided to deny
the petition. However, we and the USFWS have planned to jointly conduct
a series of status reviews for each listed sea turtle (except Kemp's
ridley). As part of these reviews, we will consider whether designation
or revision of critical habitat (as applicable to the species) is an
appropriate exercise of our discretion to take these actions. However,
should the listing classification for leatherbacks be changed through
rulemaking subsequent to the status review to include distinct
population segments, we would be required to designate critical habitat
to the maximum extent prudent and determinable. Conducting a review of
critical habitat for leatherback sea turtles in this context will allow
a more holistic, thorough examination of all in-water habitats to
identify appropriate critical habitat across the species' range.
References Cited
A complete list of references cited is available upon request from
the NMFS Southeast Regional Office (see FOR FURTHER INFORMATION
CONTACT).
Authority: The authority for this action is the ESA, as amended
(16 U.S.C. 1533 et seq.).
[[Page 32913]]
Dated: May 30, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
[FR Doc. 2012-13528 Filed 6-1-12; 8:45 am]
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