[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Notices]
[Pages 41436-41438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17531]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 100625269-0269-02]
RIN 0648-XW94


Endangered and Threatened Wildlife; Notice of 90-Day Finding on a 
Petition to Revise Critical Habitat for the Endangered Leatherback Sea 
Turtle Under the Endangered Species Act (ESA)

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, NMFS announce a 90-day finding on a petition to revise 
critical habitat for the endangered leatherback sea turtle under the 
Endangered Species Act (ESA). We find that the petition does not 
present substantial scientific information indicating that the 
petitioned action may be warranted for leatherback sea turtles and 
their habitat under our jurisdiction.

FOR FURTHER INFORMATION CONTACT:  Dennis Klemm, NMFS, Southeast 
Regional Office, Protected Resources Division, [email protected], 
(727)824-5312; or Marta Nammack, NMFS, Office of Protected Resources, 
[email protected], (301)713 1401.

SUPPLEMENTARY INFORMATION:

Background

    On February 23, 2010, we received a petition from the Sierra Club 
asking us and the United States Fish and Wildlife Service (USFWS) to 
revise, pursuant to the ESA, critical habitat for the endangered 
leatherback sea turtle. Under the ESA, NMFS and USFWS each have 
respective areas of jurisdiction over sea turtles, as clarified by the 
1977 Memorandum of Understanding Defining the Roles of the U.S. Fish 
and Wildlife Service and the National Marine Fisheries Service in Joint 
Administration of the Endangered Species Act of 1973 as to Marine 
Turtles. NMFS has jurisdiction over sea turtles and their associated 
habitats in the marine environment, while USFWS has jurisdiction when 
sea turtles are on land. Thus, if Federal agencies are involved in 
activities that may affect sea turtles involved in nesting behavior, or 
may affect their nests or their nesting habitats, those Federal 
agencies are required to consult with the USFWS under section 7 of the 
ESA to ensure that their activities are not likely to jeopardize the 
continued existence of the sea turtles. If a Federal action may affect 
sea turtles while they are in the marine environment, feeding and 
migrating for example, the Federal agency involved must engage in a 
section 7 consultation with NMFS, to ensure that the action is not 
likely to jeopardize the continued existence of the sea turtles. 
Similarly, if critical habitat has been designated, and Federal actions 
may affect such habitat, an ESA section 7 consultation would be 
required to ensure that the Federal action is not likely to destroy or 
adversely modify the critical habitat; if the habitat has been 
designated on land the consultation would be with USFWS, and if the 
habitat has been designated in the marine environment, the consultation 
would be with NMFS. This 90-day finding is responsive only to aspects 
of the petition that fall under our jurisdiction.
    The portion of the petitioned critical habitat that falls under 
NMFS' jurisdiction is described in the petition 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 de San Juan, and 
Arrecifes de la Cordillera Nature Reserves.'' The petition also asserts 
that the beaches of the Northeast Ecological Corridor of Puerto Rico

[[Page 41437]]

(which would fall under the separate jurisdiction of USFWS) are 
``centrally important to the U.S. Caribbean leatherback population, and 
should be designated as critical habitat,'' and also maintains that the 
near-shore coastal waters off those beaches (which would fall under 
NMFS' jurisdiction) ``provide room for turtles to mate and access the 
beaches, and for hatchlings and adults to leave the beaches.'' It 
likewise asserts that the coastal zone within the Northeast Ecological 
Corridor (the ``corridor'') is particularly vulnerable to developmental 
pressure and to the growing impacts of climate change, and so warrants 
protection as critical habitat.

ESA Statutory Provisions and Policy Considerations

    Section 4(b)(3)(D) of the ESA of 1973, as amended (16 U.S.C. 1533 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receiving a petition to revise a critical habitat designation, 
the Secretary of Commerce (Secretary) make a finding as to whether the 
petition presents substantial scientific information indicating that 
the revision may be warranted. The finding is to be published promptly 
in the Federal Register. If it is found that substantial information 
indicating that the petitioned action may be warranted is presented in 
the petition, the Secretary shall determine how he intends to proceed 
with the requested revision within 12 months after receiving the 
petition and shall promptly publish notice of such intention in the 
Federal Register. Joint ESA-implementing regulations issued by NMFS and 
the USFWS (50 CFR 424.14(b)) define ``substantial information'' as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In making 
this finding on a petition to revise critical habitat to include 
additional areas, the Secretary must consider whether the petition 
contains information indicating that areas petitioned to be added to 
critical habitat contain physical and biological features essential to, 
and that may require special management to provide for, the 
conservation of the species involved (50 CFR 424.14(c)(2)(i)). Thus, in 
reviewing a petition to revise critical habitat we consider the 
information presented on three aspects of critical habitat as defined 
in the ESA: the physical or biological features identified; the 
explanation of how such features may be essential to a species' 
conservation; and how those features may require special management 
considerations.

Analysis of Petition

    The petition asserts that the revision of leatherback critical 
habitat to include the waters off the Northeast Ecological Corridor of 
Puerto Rico is necessary to protect leatherback sea turtles. The 
petitioner cites a number of studies about the population status of 
leatherback sea turtles in the Pacific Ocean, and concludes that 
populations of leatherback sea turtles in the Atlantic Ocean could 
experience a similar decline if their habitat is not protected.
    The petition identifies the nesting beaches and the open water 
space off the nesting beaches as the essential features of critical 
habitat. The petition accurately states what little is known from a few 
accounts of leatherback mating behavior, that it seems to occur, at 
least in part, in areas adjacent to nesting beaches. The petition 
states `` the near-shore coastal waters provide room for turtles to 
mate and to access the beaches, and for hatchlings and adults to leave 
the beaches after nesting. If these waters are disturbed, reproductive 
success is likely to decline.'' Open marine space to access beaches for 
the purposes of nesting may be relevant to USFWS' review of the 
petition because nesting activities, and section 7 consultations 
regarding impacts to such activities are under their jurisdiction.
    For leatherback sea turtles, we cannot identify, nor has the 
petitioner presented, any specific values, ranges, or qualities of 
``open space,'' or any thresholds for the quantity of ``open space'' 
necessary for hatchling access to open water or for courtship and 
mating by adults that explains how such space is ``essential'' to the 
conservation of the species. The petition merely identifies an area and 
suggests that all the space therein that could be occupied by 
leatherback sea turtles should be included in the critical habitat 
designation. As explained below, this lack of differentiation of 
habitat used by leatherback sea turtles does not provide substantial 
information to either identify physical or biological features, or 
explain how such features could be essential to the species' 
conservation.
    The petition describes the open space feature as all of the marine 
environment from the coastline of the Northeast Ecological Corridor of 
Puerto Rico extending to the hundred fathom contour or 9 nautical 
miles, whichever is further. The 9 nautical mile boundary is based 
simply on the political boundary of Puerto Rico's territorial waters 
but has no demonstrated scientific/ecological basis as defining a 
boundary for a biological or physical feature to be included in a 
critical habitat designation. The ``space'' within this area is too 
varied and undefined to comprise a tangible physical feature, and 
instead seems to comprise simply all of the space that leatherback sea 
turtles could theoretically occupy between the shore and the 9 nautical 
mile or 100 fathom boundary. A critical habitat designation requires 
the identification of some parameters or values for physical or 
biological features included in a designation, so that the features can 
be effectively and meaningfully protected by a designation, including 
through section 7 consultations evaluating the effects of Federal 
agency actions on critical habitat through application of the 
destruction or adverse modification standard. This petition, however, 
includes no information that would provide a basis for implementing 
section 7 consultations on impacts to designated critical habitat, 
because no sufficiently defined features of the habitat have been 
identified, so there is no habitat aspect that could be identified as 
being impacted by a proposed Federal action, and thus no trigger for 
section 7 consultation. As discussed above, our regulations at 50 CFR 
424.14(c)(2) specifically direct us to consider whether a petition 
contains this information.
    The petition also cites our 1979 designation of critical habitat 
off the nesting beaches of Sandy Point, St. Croix (50 CFR 226.207; 44 
FR 17711, March 23, 1979) as rationale for likewise designating the 
waters off the Northeast Ecological Corridor of Puerto Rico. However, 
that designation did not identify physical or biological features that 
are essential to the leatherback's conservation with any degree of 
specificity. As explained in our consultation handbook (USFWS NMFS 
1998, at 4-39), many early critical habitat designations were issued 
without identification of constituent elements or habitat qualities 
essential to a species' conservation. The 1979 critical habitat 
designation off of St. Croix did not identify essential features for 
the leatherback's conservation, and thus that designation alone does 
not provide substantial information establishing that features meeting 
the ESA's definition of critical habitat exist in the nearshore waters 
off the Northeast Ecological Corridor of Puerto Rico.
    Even if open space in the nearshore waters off the Northeast 
Ecological corridor out to either the 9 nautical mile or 100-fathom 
boundary could be viewed as a tangible physical feature, there is not 
substantial scientific or

[[Page 41438]]

commercial information to indicate that this feature is essential to 
the conservation of leatherback sea turtles. In other words, there is 
not substantial information to indicate that the successful 
conservation of leatherback sea turtles requires including this open 
space feature in a designation of critical habitat. The petition's 
discussions of the status of leatherback sea turtles rely primarily on 
Pacific population assessments to illustrate the precarious situation 
for leatherback sea turtles. More recent, readily available sources of 
information specific to Atlantic populations were not cited. The Turtle 
Expert Working Group published An Assessment of the Leatherback Turtle 
Population in the Atlantic Ocean in 2007 (NOAA Technical Memorandum 
NMFS-SEFSC-555) that characterizes the Atlantic population as stable or 
increasing overall. That assessment characterizes the nesting trend for 
the North Caribbean stock, which includes Puerto Rico, as increasing. 
Further, this assessment concludes that inter-nesting threats 
throughout the North Caribbean for those rookeries are generally 
``low'' in a range including ``low,'' ``medium,'' and ``high.'' No new 
or substantial information is presented to support the petitioner's 
assertions that leatherback populations in the Atlantic, or in the 
North Caribbean, have seriously declined in the years since the 
original critical habitat designation in St. Croix, or that the 
Atlantic populations are likely to follow the Pacific population 
trajectory if critical habitat is not revised to include open marine 
space off the Northeast Ecological corridor.
    As discussed above, the petitioner provided no information, nor is 
any available in the literature and other material readily available in 
our files, to prescribe some parameters of an open space feature off 
the Northeast Ecological Corridor that is essential to the leatherback 
sea turtle's conservation, thus there is not substantial scientific 
information indicating that habitat features may exist that meet the 
first two criteria of the definition of critical habitat. Without such 
parameters there is no basis on which to conclude that such a feature 
may require special management considerations or protections, to 
address potential threats or impacts to the feature, or management 
needs of the feature, to provide for the conservation of leatherback 
sea turtles. Thus, there is not substantial scientific information 
indicating the third aspect of the definition of critical habitat may 
be met that special management considerations may be required to 
protect essential physical or biological features to provide for the 
conservation of the species.

Petition Finding

    After considering the petition, the information cited by the 
petitioner, and relevant information readily available in our files, we 
conclude that, with respect to areas under NMFS' jurisdiction, the 
petition does not present substantial scientific information indicating 
that the petitioned revision of designated critical habitat for 
leatherback sea turtles may be warranted.

Authority

    The authority for this action is the ESA, as amended (16 U.S.C. 
1533 et seq.).

    Dated: July 14, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-17531 Filed 7-15-10; 8:45 am]
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