4170 Federal Register / Vol. 77, No. 17 / Thursday, January 26, 2012 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 0808061067–1664–03] 

RIN 0648–AX06 

Endangered and Threatened Species: 

Final Rule To Revise the Critical 

Habitat Designation for the 

Endangered Leatherback Sea Turtle 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), issue a final 

rule to revise the current critical habitat 

for the leatherback sea turtle 

(Dermochelys coriacea) by designating 

additional areas within the Pacific 

Ocean. 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 designated areas comprise 

approximately 41,914 square miles 

(108,558 square km) of marine habitat 

and include waters from the ocean 

surface down to a maximum depth of 

262 feet (80 m). Other Pacific waters 

within the U.S. Exclusive Economic 

Zone (EEZ) were evaluated based on the 

geographical area occupied by the 

species, but we determined that they 

were not eligible for designation, as they 

do not contain the feature identified as 

essential to the conservation of the 

species. The total estimated annualized 

economic impact associated with this 

designation is estimated to range 

between $188,000 and $9.1 million U.S. 

dollars. 

DATES: This rule becomes effective 

February 27, 2012. 

ADDRESSES: This final rule and 

supporting documents (Economic 

Report, Endangered Species Act (ESA) 

Section 4(b)(2) Report and Biological 

Report) are available electronically on 

the NMFS Web site at http:// 

www.nmfs.noaa.gov/pr/species/turtles/ 

leatherback.htm#documents, or at the 

Federal eRulemaking Portal http:// 

www.regulations.gov. Hard copies are 

available by contacting: Chief, Marine 

Mammal and Sea Turtle Conservation 

Division, NMFS, Office of Protected 

Resources, 1315 East West Highway, 

Silver Spring, MD 20910. 

FOR FURTHER INFORMATION CONTACT: Sara 

McNulty, NMFS, Office of Protected 

Resources, (301) 427–8402; Elizabeth 

Petras, NMFS Southwest Region, (562) 

980–3238; Steve Stone, NMFS 

Northwest Region, (503) 231–2317. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the ESA, we are responsible for 

determining whether certain species, 

subspecies, or distinct population 

segments (DPS) are threatened or 

endangered and for designating critical 

habitat for those species (16 U.S.C. 

1533). The leatherback sea turtle was 

listed as endangered throughout its 

range on June 2, 1970 (35 FR 8491). 

Pursuant to a joint agreement, the U.S. 

Fish and Wildlife Service (USFWS) has 

jurisdiction over sea turtles on the land 

and NMFS has jurisdiction over sea 

turtles in the marine environment. The 

USFWS initially designated critical 

habitat for leatherbacks on September 

26, 1978 (43 FR 43688). This critical 

habitat area consists of a strip of land 

0.2 miles (0.32 kilometers) wide (from 

mean high tide inland) at Sandy Point 

Beach on the western end of the island 

of St. Croix in the U.S. Virgin Islands. 

On March 23, 1979, NMFS designated 

the marine waters adjacent to Sandy 

Point Beach as critical habitat from the 

hundred fathom (182.9 meters) curve 

shoreward to the level of mean high tide 

(44 FR 17710). 

On October 2, 2007, we received a 

petition from the Center for Biological 

Diversity (CBD), Oceana, and Turtle 

Island Restoration Network to revise the 

leatherback critical habitat designation 

by adding areas in the Pacific Ocean. On 

December 28, 2007, we announced a 90- 

day finding that the petition provided 

substantial scientific information 

indicating that the petitioned action 

may be warranted (72 FR 73745). On 

January 5, 2010 we published a 

combined 12-month finding and 

proposed rule to revise the critical 

habitat designation for this species (75 

FR 319), followed by a notification of 

public hearings (75 FR 5015, February 1, 

2010), and a notification of the 

extension of the public comment period 

for an additional 45 days, (75 FR 7434, 

February 19, 2010). As proposed, this 

rule identified eight specific geographic 

areas in the U.S. EEZ off the U.S. West 

Coast as critical habitat for the 

leatherback turtle, based on the 

presence in these areas of certain 

biological or physical features essential 

to conservation of the species for which 

special management consideration or 

protection might be required. In 

determining the areas that may be 

eligible for designation as critical 

habitat, regulations published at 50 CFR 

424.12(a)–(b) direct the Secretary to 

consider those physical or biological 

features that are essential to 

conservation of the species and that may 

require special management 

considerations or protection; and to 

focus on the principal biological or 

physical constituent elements within 

the area that are essential to the 

conservation of the species. Primary 

constituent elements (PCE’s) in the 

proposed rule included migratory 

pathway conditions (i.e., the state of the 

areas through which leatherbacks 

traverse for feeding and reproduction), 

and the separate PCE of quality and 

quantity of prey. 

This final rule describes the final 

critical habitat designation, including 

responses to comments, a summary of 

changes from the proposed rule, and 

supporting information on leatherback 

sea turtle biology, distribution, and 

habitat use, and the methods used to 

develop the final designation. Based on 

review and evaluation of the comments 

received this final designation differs 

from our proposed designation in the 

following ways. We: (1) Eliminated 

‘‘migratory pathway conditions’’ as a 

primary constituent element (PCE); (2) 

clarified the prey PCE to explicitly 

identify density of prey as a 

characteristic of the PCE; and (3) revised 

the boundaries of the specific areas in 

which the PCE is found. As a result of 

these changes, several occupied areas no 

longer meet the definition of critical 

habitat, and we have eliminated those 

areas from consideration in this final 

rule. These changes are reflected 

throughout the rule, and are described 

in detail below in the section ‘‘Summary 

of Changes from the Proposed Rule.’’ 

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 before 

making a final designation. The 

Secretary has discretion to exclude an 

area otherwise meeting the definition of 

critical habitat from the designation if 

the benefits of the exclusion (i.e., the 

impacts that would be avoided if an area 

was excluded from the designation) 

outweigh the benefits of the designation 

(i.e., the conservation benefits to 

leatherbacks if an area was designated), 

so long as exclusion of the area will not 

result in extinction of the species. 

This evaluation process introduced 

various alternatives for the revision of 

designated critical habitat for the 

leatherback sea turtle, all of which we 

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considered. The first alternative, not 

designating critical habitat for 

leatherbacks, would impose no 

economic, national security, or other 

relevant impacts, but would not provide 

any conservation benefit to the species. 

This alternative was considered and 

rejected because such an approach does 

not meet the legal requirements of the 

ESA and would not provide for the 

conservation of the species to the extent 

such benefits could be gained through 

designation. 

The second alternative, designating a 

subset of the areas that meet the 

definition of critical habitat and are 

therefore eligible for designation, our 

preferred alternative in the proposed 

rule, was also rejected. In our proposed 

rule we identified 8 particular areas 

meeting the definition of critical habitat 

and concluded that 5 out of these 8 

areas were eligible for exclusion based 

on the ESA section 4(b)(2) analyses. We 

then proposed to exclude all 5 areas 

from the critical habitat designation. 

However, as detailed in subsequent 

sections of this final rule, after 

reviewing the public comments and 

subsequently eliminating the migratory 

conditions PCE, and making boundary 

adjustments that resulted in the 

addition of area 9, we concluded that 6 

areas, including the 5 areas identified 

for exclusion in the proposed rule, did 

not contain the prey PCE and thus did 

not meet the definition of critical 

habitat. We confirmed that the three 

areas initially identified as critical 

habitat and proposed for designation 

continue to meet the definition of 

critical habitat. Our final 4(b)(2) analysis 

was revised to address only the three 

areas that meet the definition of critical 

habitat. 

The third alternative, designating the 

three areas as meeting the definition of 

critical habitat (i.e., no areas excluded), 

was considered and selected. We 

selected this alternative after conducting 

an ESA section 4(b)(2) analysis, and 

determining that the benefits of 

exclusion, including the avoidance or 

reduction of economic impacts, did not 

outweigh the conservation benefits to 

the species. The total estimated 

annualized economic impact associated 

with this designation is estimated to 

range between $188,000 and $9.1 

million U.S. dollars. However, as 

explained below and detailed in the 

ESA Section 4(b)(2) Report (see 

ADDRESSES), the conservation benefit to 

the species outweighs these costs. We 

selected this third alternative because it 

would result in a critical habitat 

designation that provides for the 

conservation of the species and meets 

joint NMFS and USFWS regulations 

concerning critical habitat designation 

under the ESA (50 CFR part 424). 

Leatherback Natural History 

The leatherback is the sole remaining 

member of the taxonomic family 

Dermochelyidae. All other extant sea 

turtles belong to the family Cheloniidae. 

Leatherbacks are the largest marine 

turtle, with a curved carapace length 

(CCL) often exceeding 150 cm and front 

flippers that can span 270 cm (NMFS 

and USFWS, 1998). The leatherback’s 

slightly flexible, rubber-like carapace is 

distinguishable from other sea turtles 

that have carapaces with bony plates 

covered with horny scutes. In adults, 

the carapace consists mainly of tough, 

oil-saturated connective tissue raised 

into seven prominent ridges and tapered 

to a blunt point posteriorly. The 

carapace and plastron are barrel-shaped 

and streamlined. Leatherbacks display 

several unique physiological and 

behavioral traits that enable this species 

to inhabit cold water, unlike other sea 

turtle species. These include a 

countercurrent circulatory system (Greer 

et al., 1973), a thick layer of insulating 

fat (Goff and Lien, 1988; Davenport et 

al., 1990), gigantothermy that limits heat 

loss (Paladino et al., 1990), and the 

ability to elevate body temperature 

through increased metabolic activity 

(Southwood et al., 2005; Bostrom and 

Jones, 2007). These adaptations also 

enable leatherbacks to have a larger 

geographic range than other species of 

sea turtle. 

Leatherbacks have the most extensive 

range of any living reptile and have 

been reported circumglobally 

throughout the oceans of the world 

(Marquez, 1990; NMFS and USFWS, 

1998). Leatherbacks can forage in the 

cold temperate regions of the oceans, 

occurring at latitudes as high as 71° N. 

and 47° S.; however, nesting is confined 

to tropical and subtropical latitudes. In 

the Pacific Ocean, significant nesting 

aggregations occur primarily in Mexico, 

Costa Rica, Indonesia, the Solomon 

Islands, and Papua New Guinea. In the 

Atlantic Ocean, significant leatherback 

nesting aggregations have been 

documented on the west coast of Africa, 

from Guinea-Bissau south to Angola, 

with dense aggregations in Gabon. In the 

wider Caribbean Sea, leatherback 

nesting is broadly distributed across 36 

countries or territories with major 

nesting colonies (>1000 females nesting 

annually) in Trinidad, French Guiana, 

and Suriname (Dow et al., 2007). In the 

Indian Ocean, nesting aggregations are 

reported in South Africa, India and Sri 

Lanka. Leatherbacks have not been 

reported to nest in the Mediterranean 

Sea. 

Migratory routes of leatherbacks are 

not entirely known. However, recent 

satellite telemetry studies have 

documented transoceanic migrations 

between nesting beaches and foraging 

areas in the Atlantic and Pacific Ocean 

basins (Ferraroli et al., 2004; Hays et al., 

2004; James et al., 2005; Eckert, 2006; 

Eckert et al., 2006; Benson et al., 2007a; 

Benson et al., 2011). In a single year, a 

leatherback may swim more than 10,000 

kilometers (Eckert, 2006; Eckert et al., 

2006; Benson et al., 2007a; Benson et 

al., 2011). Leatherbacks nesting in 

Central America and Mexico migrate 

thousands of miles into tropical and 

temperate waters of the South Pacific 

(Eckert and Sarti, 1997; Shillinger et al., 

2008). After nesting, females from 

Jamursba-Medi, Indonesia, make longdistance migrations into the central and 

eastern North Pacific, westward to the 

Sulawasi and Sulu and South China 

Seas, or northward to the Sea of Japan 

(Benson et al., 2007a; Benson et al., 

2011). Turtles tagged after nesting in 

July at Jamursba-Medi arrived in waters 

off California and Oregon during JulyAugust (Benson et al., 2007a; 2011) 

coincident with the development of 

seasonal aggregations of jellyfish 

(Shenker, 1984; Suchman and Brodeur, 

2005; Graham, 2009). Other studies 

similarly have documented leatherback 

sightings along the Pacific coast of 

North America during the summer and 

fall months, when large aggregations of 

jellyfish form (Bowlby, 1994; Starbird et 

al., 1993; Benson et al., 2007b; Graham, 

2009). Leatherbacks primarily forage on 

cnidarians (jellyfish and siphonophores) 

and, to a lesser extent, tunicates 

(pyrosomas and salps) (NMFS and 

USFWS, 1998). Leatherbacks forage 

widely in temperate and tropical waters 

and exploit diverse open-ocean and 

coastal habitats characterized by oceanic 

processes that aggregate prey, such as 

convergence zones, coastal retention 

areas, or mesoscale eddies (Morreale et 

al., 1994; Eckert, 1998; 1999; Benson et 

al., 2011). 

Summary of Comments and Responses 

We requested comments on the 

proposed rule and associated supporting 

reports to revise the critical habitat 

designation for leatherback sea turtles 

on January 5, 2010 (75 FR 319), and on 

February 19, 2010 (75 FR 7434), we 

extended the comment period through 

April 23, 2010. We held two public 

hearings to facilitate public 

participation, we made the proposed 

rule available on the NMFS Web site, 

and we accepted comments via standard 

mail, facsimile, and through the Federal 

eRulemaking portal. We received over 

57,000 comments on the proposed rule 

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from private, local, state, tribal and 

Federal entities. We also received peer 

review comments on the economic 

report and biological report. Comments 

ranged from general support of the rule 

to specific concerns regarding the 

analysis of threats. We have considered 

all public comments and peer review 

comments, and those that are responsive 

to the designation are addressed in this 

final rule in the following summary. We 

have assigned comments to major issue 

categories, and where appropriate, have 

combined similar comments. 

Peer Review Comments 

In August 2009, a draft biological 

report developed by the critical habitat 

review team (CHRT) was provided to 

five external scientists with expertise in 

leatherback sea turtles and leatherback 

prey species. All peer review comments 

were incorporated into the proposed 

rule and associated supplementary 

documents prior to publication in the 

Federal Register. Therefore, no peer 

review comments regarding the 

biological report will be detailed in this 

rule. 

As a result of public comments on 

several sections of the draft biological 

report and the proposed rule, we 

updated the final biological report by 

adding detailed information on the 

presence of the prey feature considered 

a PCE in each of the areas identified in 

the proposed rule, as well as adding 

analysis and discussion on the usage of 

each area by leatherbacks for foraging. 

A draft of the economic report was 

sent out to four peer reviewers in 

October of 2009. Many of the responses 

received prior to the publication of the 

proposed rule were incorporated into 

the economic report. The comments 

detailed below were received after the 

publication of the proposed rule, and 

have been addressed in this final rule. 

Comment 1: One peer reviewer asked 

if there was a way to make the oil spill 

costs variable across areas, based on 

historical spill or area size. 

Response: In response to this and 

other comments, we reviewed 

additional data from the U.S. Coast 

Guard and NOAA Office of Response 

and Restoration on oil spill response to 

determine if costs could be broken 

down further; however, due to vast 

uncertainties in the size and location of 

oil spills, and the absence of existing 

data on the effect of U.S. West Coast 

critical habitat designations on the cost 

or even the extent of a potential spill 

response, we have decided it is not 

feasible to provide meaningful 

quantitative estimates of the 

incremental cost of oil spill response 

due to this leatherback critical habitat 

designation. As such, the oil spill 

response cost estimates provided in the 

initial economic report and the 

proposed rule have been omitted from 

this final rule. In our final economic 

report we have detailed a qualitative 

discussion regarding potential economic 

impacts to oil spill response. This 

revision (i.e., replacing quantitative 

costs with a qualitative discussion of 

economic impacts to oil spill response 

activities) as a result of the high level of 

uncertainty is consistent with NMFS’ 

economic analysis for the recently 

designated critical habitat for black 

abalone (76 FR 66806; October 27, 

2011). 

Comment 2: One peer reviewer 

questioned how our economic analysis 

treated proposed desalination plants, 

which may not ultimately be permitted 

or constructed. Specifically, each 

specific area evaluated has different 

ratios of existing to proposed 

desalination plants, so their ranking 

could be affected if you discounted the 

proposed plants in some way. 

Response: In our analysis, we 

identified desalination plants as a 

potential threat to leatherback critical 

habitat in two areas (Areas 1 and 7) off 

the coast of California. We contacted 

Dean Reynolds and Ray Hoagland at the 

California Coastal Commission in order 

to obtain information on the probability 

that proposed desalination plants will 

be permitted and constructed. They 

conveyed that they do not have any 

statistical information on probability of 

proposed desalination plants being 

permitted or built. They also said that 

there are a wide variety of 

environmental, economic and political 

factors that affect whether a proposed 

desalination project is permitted. Also, 

although some desalination projects 

listed in the economic analysis may not 

ever be finalized, others will be 

proposed in the future, so they felt the 

economic analysis was sufficient given 

the available information. Therefore, we 

did not revise the analysis of 

desalination plants. 

Public Comments 

Comments on Specific Area Boundaries 

Comment 3: Several commenters 

questioned the delineation of area 

boundaries with respect to prey 

abundance. Overall the comments on 

this topic appeared to seek additional 

information on how the area boundaries 

were created and whether the 

abundance of prey contributed to the 

location of area boundaries and the 

subsequent designation, particularly in 

the areas south of Point Sur, California. 

Response: Many factors were used in 

determining the proposed area 

boundaries, including geographic and 

oceanographic features, leatherback 

presence, and leatherback prey 

concentration. 

Neritic waters off the central 

California coast were included to 

encompass a prominent oceanographic 

front that occurs between cool, 

nearshore upwelling-modified waters 

and warmer offshore waters of the 

California Current. The front is located 

within 60 miles of the coast, providing 

a mechanism for aggregating leatherback 

prey, primarily brown sea nettles that 

have been advected from neritic central 

California waters, and moon jellies 

(Aurelia sp.; Benson, unpublished). The 

southern and offshore areas have been 

used by foraging leatherback turtles 

equipped with satellite-linked 

transmitters (Benson et al., 2011) and 

are part of a contiguous marine 

bioregion that extends from Cape 

Mendocino to Point Arguello, 

California. 

In response to this and other 

comments, we have reviewed all 

boundaries of our proposed specific 

areas and made several adjustments. 

These changes are detailed in the final 

biological report and below in the 

section, ‘‘Summary of Changes from the 

Proposed Designation.’’ 

Comment 4: A number of commenters 

stated that our proposed Area 7, which 

is located nearshore and offshore from 

Point Arena, to Point Vicente, 

California, should be modified to 

exclude the area south of Point 

Arguello, California due to the different 

ocean conditions and lack of jellyfish in 

the area. Other commenters questioned 

the offshore boundary of Area 7, which 

extended to a line connecting 38°57′14′′ 

N./126°22′55′′ W. and 33°44′30′′ N./ 

121°53′41′′ W. 

Response: As stated above, based on 

this and other comments related to the 

usage and boundaries of Area 7, we reevaluated the features within this area 

and determined that it was appropriate 

to revise the boundaries for this area 

and provide a more detailed 

justification for these new boundaries. 

Due to differences in the geography, 

oceanography, and usage by 

leatherbacks between the northern and 

southern portions of our proposed Area 

7, the southern portion of Area 7 (south 

of Point Arguello, California) is now 

identified as a separate area, Area 9. 

This separation of the southern and 

northern portions of our proposed Area 

7 allowed us to look at areas with more 

uniform value in terms of leatherback 

habitat. Additionally, in an effort to be 

consistent with other area boundaries 

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marked by geographic features, the 

offshore boundary of Area 7 has been 

moved east to the 3,000 m isobaths. 

Additional information on changes to 

the area boundaries can be found in the 

section ‘‘Summary of Changes from the 

Proposed Designation.’’ 

Comments on Areas Included or 

Excluded From the Designation 

Comment 5: Many commenters 

specifically suggested that NMFS 

should designate Areas 4, 5, 6, and 8 (or 

a subset of these four areas) as critical 

habitat for leatherback turtles because 

they are important migratory corridors 

necessary to gain access to the coastal 

foraging areas, and others stated that 

these offshore areas should be 

designated to be precautionary and 

account for oceanographic variability. 

Other commenters provided general 

suggestions that since leatherbacks do 

not have predictable migration routes 

NMFS should designate large sections of 

ocean as critical habitat, if those areas 

are used by leatherbacks during their 

migrations. 

Some commenters also suggested that 

Area 5 should be included for its 

importance as a secondary foraging area, 

as well as its importance for access to 

both the northern and southern coastal 

foraging areas, while another group of 

commenters suggested that Area 8 

should be designated, as it is an area in 

which leatherbacks wait for upwelling 

to subside and water in Area 7 to warm, 

and because it is used as a passage to 

and from coastal foraging areas. 

Response: We grouped these 

comments together, as they all 

recommended inclusion of offshore 

areas in this designation, many with 

particular interest in designating 

migration routes or areas that allow 

leatherbacks to access coastal foraging 

areas. In response to these comments 

and concerns, we re-evaluated the 

occupied areas within the U.S. West 

Coast EEZ, the boundaries of each of the 

areas, and the criteria used to determine 

whether the areas are eligible for 

designation as critical habitat and 

finally whether they were eligible for 

possible exclusions. Through this 

process, we detailed how each of the 

offshore areas are used by leatherbacks. 

This evaluation resulted in some 

adjustments to the area boundaries to 

better reflect the geographic and 

oceanographic features, leatherback 

presence, and prey concentrations, as 

well as the addition of a ninth area. 

These changes are detailed below in the 

section ‘‘Summary of Changes from the 

Proposed Designation.’’ 

In response to the comments focusing 

on the need to designate offshore areas 

for their value as migratory areas or 

corridors, we re-evaluated our analysis 

of all areas in terms of our proposed 

migratory pathway PCE. In our 

proposed rule, we recognized that to 

complete their life history, leatherback 

turtles must migrate through the 

offshore areas to access nearshore 

foraging areas; therefore, we proposed 

that an essential feature of leatherback 

habitat is ‘‘migratory pathway 

conditions.’’ We acknowledged, 

however, that based on the most current 

scientific information it was difficult to 

define specific migratory corridors, and 

we were therefore not able to provide 

any detail about what physical, 

biological, or hydrographic features 

specifically define ‘‘migratory pathway 

conditions.’’ We solicited additional 

information on this PCE during the 

public comment period. However, peer 

review and public comments did not 

provide any additional information 

leading us to identify such features, and 

many commenters agreed that available 

evidence indicates that leatherback 

turtles do not have predictable 

migration routes. While water 

temperature gradients may influence 

leatherback migration pathways, at this 

time we cannot identify any known or 

consistent physically defined migratory 

corridors or associated specific areas 

that would consistently contain features 

of a migratory corridor for leatherbacks 

off the U.S. West Coast. As such, we 

have eliminated the migratory pathway 

PCE from this critical habitat 

designation. Additional information 

detailing this change and the analysis 

can be found in the final Biological 

Report and below in the section 

‘‘Summary of Changes from the 

Proposed Designation.’’ 

Given the elimination of the migratory 

pathway PCE, we then focused our 

response to this comment on the prey 

PCE and the foraging activity that was 

occurring in offshore areas. In our 

proposed rule, we noted that there is a 

distinct difference between nearshore 

and offshore areas with regard to 

leatherback foraging behavior and the 

availability of the prey PCE to 

leatherbacks. The intention of our prey 

PCE in the proposed rule was to 

differentiate between foraging areas and 

determine which areas truly contain the 

prey feature essential to the 

conservation of the species. Through 

discussions evaluating these public 

comments, we determined that our 

evaluation of the prey PCE should more 

systematically consider the quality, 

quantity, and density of prey in each 

area. As such, we have added the term 

‘‘density’’ to the prey PCE definition in 

order to explicitly recognize that density 

of the prey is a critical characteristic of 

the prey PCE. Further clarification with 

respect to the components of the prey 

PCE is provided in later sections of this 

rule (see ‘‘Summary of Changes from the 

Proposed Designation’’). 

Based on the elimination of the 

migratory pathway PCE, and the more 

systematic consideration of our prey 

PCE, we re-evaluated each area to 

determine if it contains the prey feature 

(including density) identified as 

essential to the conservation of the 

species. In our proposed rule, we made 

the determination that the prey PCE was 

present in every area. This 

determination was made based on 

information that leatherbacks forage 

periodically and opportunistically 

during migrations. However, during the 

proposed rule analysis we did not look 

further at the type of prey they forage on 

in those instances, and if that level of 

foraging is expected to support 

leatherback individual and population 

growth, reproduction, and development, 

as defined in our PCE. We found that 

the offshore areas 4, 5, 6, and 8 (in 

addition to nearshore areas 3 and 9) do 

not contain the prey PCE, and therefore 

do not meet the definition of critical 

habitat. Additional information on this 

analysis can be found in the final 

Biological Report and below in the 

section ‘‘Summary of Changes from the 

Proposed Designation.’’ 

In response to the comments 

suggesting that Area 5 should be 

designated based on its use as a 

secondary foraging area, as described 

above, we specifically looked at 

leatherback behavior and foraging 

within Area 5, and found that although 

some foraging activity has been 

documented in this area, this activity 

has been brief and inconsistent and the 

available evidence does not indicate this 

areas contains the prey PCE. Therefore, 

Area 5 does not meet the definition of 

critical habitat and will not be included 

in the final designation. 

Comment 6: Several commenters 

suggested that the area proposed for 

designation is too large and should be 

reduced to include only the primary 

coastal foraging areas (Areas 1 and 6). 

Response: In response to this and 

other comments, and as stated above, 

we re-evaluated our area boundaries and 

made several changes to better reflect 

the geographic and oceanographic 

features that contribute to use by 

leatherbacks, as well as leatherback 

presence and prey concentration in each 

area. Also, as mentioned above, we 

eliminated the proposed migratory 

pathway PCE, and therefore based our 

final designation on the prey PCE alone. 

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The resulting final designation is 

approximately 41,914 square miles, 

which is smaller than the proposed 

designation. The final designation 

focuses on the known and consistent 

coastal foraging areas that leatherbacks 

rely on after long migrations across the 

Pacific Ocean. 

The decrease in size of the designated 

critical habitat is largely due to the 

offshore boundary change for Area 7. 

This change was initiated in response to 

commenters that questioned how 

boundaries were drawn and the overall 

size of Area 7. Area 7 was adjusted to 

reflect the oceanographic differences 

north and south of Point Conception, 

California. The Biological Report 

includes detailed discussion of this 

change. The final designation of Areas 

1, 2, and 7, with adjustments to the area 

boundaries from the proposed rule, 

better represents the coastal foraging 

areas that are used by leatherback sea 

turtles and that contain the prey PCE. 

Comment 7: The Ocean Conservancy 

and several other commenters 

questioned the exclusion of Area 3, and 

provided information that stated Area 3 

is necessary as critical habitat as it 

encompasses the area between to the 

proposed Areas 1 and 2, and is part of 

the California Current System. 

Commenters also noted that it is 

possible that leatherbacks may shift 

their distribution and make greater use 

of Area 3 for foraging due to the El Nin ̃ o 

Southern Oscillation events and global 

warming. The commenters also noted 

that Cape Blanco, within Area 3 is a 

major upwelling center, and is 

described as an area of persistent 

jellyfish abundance north and south of 

Cape Blanco. Other commenters 

suggested that the designation of Area 3 

would allow for a contiguous band of 

critical habitat along the coast, and 

would ensure that there was not any gap 

in coverage for current coastal foraging 

areas. 

Response: In response to comments, 

we re-evaluated the features found in 

Area 3 and determined that the 

boundary between Area 3 and Area 2 

should be moved south to Cape Blanco, 

Oregon, as this area appears to be a 

more appropriate transition zone based 

on oceanographic features and data on 

leatherback presence. However, Area 3, 

the area between Cape Blanco, Oregon, 

and Point Arena, California, is 

characterized by cold, newly up-welled 

water. These waters provide nutrient 

input for phytoplankton production and 

subsequent energy transfer to higher 

trophic levels further south and 

offshore. However, these same waters 

are typically avoided by leatherbacks 

(Benson et al., 2011). Although moon 

jellies can be abundant in this region, 

aggregations of sea nettles, the preferred 

prey of leatherbacks and prey of higher 

caloric value, are less common. For 

example, Graham (1993, 1994 in 

Suchman and Brodeur (2005)) 

hypothesized that brown sea nettles, the 

preferred prey of leatherbacks, remain 

in areas where a warm, low-chlorophyll 

shadow of water persists shoreward of 

the upwelling front such as in Monterey 

Bay. Such features are not known to 

regularly occur along such parts of the 

Oregon coastline. Furthermore, although 

leatherbacks are able to tolerate cold 

waters through a physiological 

mechanism that allow them to elevate 

body temperature through increased 

metabolic activity, occupying colder 

waters is expected to have energetic 

costs for leatherbacks when prey are less 

abundant or contain fewer calories per 

individual jellyfish species (i.e., the 

calories expended to maintain body 

temperature in cold waters may not be 

offset by consumption of low calorie 

moon jellies versus the higher calorie 

sea nettles). Our review of leatherback 

turtle telemetry data and multiple aerial 

surveys indicates that leatherbacks 

forage in warmer upwelled-modified 

waters where sea nettles are abundant 

and excessive energy is not lost trying 

to regulate body temperature (Benson et 

al., 2011). Available data suggest that 

the waters north of Cape Blanco (now 

within Area 2) and the waters south of 

Point Arena (within Area 1) are used 

regularly for foraging. In contrast, the 

area between Cape Blanco and Point 

Arena (Area 3), is generally avoided by 

leatherbacks and does not provide ideal 

habitat for the production of their 

preferred prey species (i.e., sea nettles). 

As such, we have determined that 

Area 3 does not contain the prey PCE. 

Therefore, this area is not eligible for 

designation as critical habitat. 

Comment 8: Several commenters 

stated that there was no biological 

reason to expand critical habitat south 

of Point Sur, California since the 

available biological data indicate that 

leatherbacks rarely occupy that area, 

and this will result in a much greater 

critical habitat area than necessary. 

Response: We agree with the 

commenters that data indicate that 

leatherbacks are more likely to occur in 

higher densities north of Point Sur, 

California than in areas to the south. 

However, leatherbacks have been 

tracked in the waters south of Point Sur 

(Benson et al. 2011); therefore, it is 

considered an occupied area and should 

therefore be considered as potential 

critical habitat. 

As noted above, and in response to 

this and other comments, we reevaluated the southern portion of Area 

7, and determined that the waters south 

of Point Arguello, California are 

substantially different than the waters to 

the north; thus, we identified the waters 

south of Point Arguello to be a new area, 

Area 9. NMFS then evaluated Area 9 for 

its usage by leatherback sea turtles and 

for the presence of the prey PCE. It was 

found that Area 9 does not contain the 

prey PCE, as detailed below in the 

section ‘‘Summary of Changes from the 

Proposed Designation,’’ and thus does 

not meet the definition of critical 

habitat. 

Comments on Tribal Lands 

Comment 9: The Makah and Quileute 

tribes in Northwest Washington 

expressed concerns about the manner in 

which NMFS engaged them through the 

critical habitat designation process prior 

to the proposed rule. Each tribe objected 

to the proposed designation of critical 

habitat in marine areas identified as 

tribal usual and accustomed fishing 

grounds and requested that NMFS 

provide them an opportunity for 

government-to-government consultation 

to discuss the implications of the 

designation. The Quileute tribe also 

raised concerns about our consideration 

of areas beyond those addressed in the 

petition as well as the limited 

information supporting our proposed 

rule. Additionally, the National Ocean 

Service (NOS) and the Pacific Fisheries 

Management Council (PFMC) raised 

similar concerns and requested that 

NMFS clarify the impacts of this critical 

habitat designation on the Northwest 

tribes. 

Response: As described in the 

proposed rule and documentation 

supporting this final rule, we 

acknowledge that the best available 

information on habitat use by 

leatherback turtles in the northeast 

Pacific Ocean is limited. We reviewed 

maps indicating that some Indian lands 

along the Washington coast likely 

overlap with areas under consideration 

as critical habitat for leatherback turtles. 

These overlapping areas consist of a 

narrow intertidal zone associated with 

several coastal Indian reservations, from 

the line of mean lower low water (an 

average of lower low water heights 

observed over a given period) to the 

extent of tribal land demarcated by the 

line of extreme low water (the lowest 

water height recorded for a given 

section of shoreline). In consideration of 

Executive Order 13175 ‘‘Consultation 

and Coordination with Indian Tribal 

Governments’’ and the 1997 Secretarial 

Order, ‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities 

and the Endangered Species Act,’’ we 

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contacted senior tribal staff early in the 

process of preparing our proposed rule 

and discussed with them the nature of 

the designation. To further coordinate 

with tribal governments, we discussed 

leatherback critical habitat during a 

regular annual meeting with the 

Northwest Indian Fisheries Commission 

and member tribes in August 2008. 

Between the time of our proposed rule 

and this final rule we made numerous 

additional attempts to arrange meetings 

between the NMFS Northwest Region’s 

Deputy Regional Administrator and 

members of all the coastal tribes in the 

U.S. northwest. Although we met with 

the tribes, the leatherback critical 

habitat topic was removed from the 

meeting agendas because the tribes 

identified other fishery management 

issues as having a higher priority. We 

were able to have a government-togovernment meeting with the Makah 

tribe on June 9, 2011, to discuss the 

designation and the tribe’s concerns 

with a senior NMFS administrator and 

lead agency staff working on the critical 

habitat designation. 

Between the proposed and final rule, 

we re-assessed several spatial and 

biological elements of the proposed 

critical habitat designation and 

determined that the line of extreme low 

water more accurately depicted the 

shoreward extent of areas occupied by 

leatherback turtles (i.e., they are 

foraging in these waters and not 

accessing the beaches). Given this 

boundary change, there is no longer an 

overlap between designated areas and 

areas that meet the definition of Indian 

lands. 

NMFS acknowledges the presence of 

tribal usual and accustomed fishing 

grounds within Area 2. We considered 

the tribal concerns and concluded that 

the benefits of excluding these 

particular usual and accustomed fishing 

areas do not outweigh the benefits of 

designating these areas as critical 

habitat for leatherback turtles. The tribes 

have not identified any treaty-related 

activities in their usual and accustomed 

fishing areas that are likely to affect 

jellyfish and therefore likely to be 

affected by a critical habitat designation. 

Moreover, usual and accustomed fishing 

areas, while vitally important to the 

exercise of treaty-secured fishing rights, 

are not reserved by the United States for 

the exclusive use of a tribe, nor are they 

subject to the sovereign authority of a 

tribal government, as is the case with 

Indian lands. For these reasons, we 

conclude there are no impacts from this 

critical habitat designation on treatysecured fishing rights, and little impact 

to tribal sovereignty and selfgovernance. 

During the government-to-government 

consultation, the Makah tribe expressed 

concern for their ability to engage in 

cooperative projects, such as future 

alternative energy development, within 

their usual and accustomed fishing 

grounds, if designated as critical habitat. 

Through that discussion we informed 

the Makah tribe that the designation of 

critical habitat will not preclude such 

projects from moving forward; however, 

any projects that are federally funded or 

authorized and that may impact 

leatherback sea turtles or the PCE will 

be required to undergo an ESA section 

7 consultation to evaluate the impact of 

the project on listed species and 

designated critical habitat. 

We acknowledge that the Makah 

Indian Tribe disagrees with our 

assessment and is concerned about 

potential impacts to the tribe’s fishing 

rights. We will continue to coordinate 

with the tribe as we implement our 

responsibilities under section 7 with 

respect to leatherback turtles and 

address any conflicts, if they arise, in a 

government-to-government 

consultation. 

Comments on Exclusions for National 

Security 

Comment 10: The Department of 

Defense (DOD) commented that the 

proposed critical habitat area would 

overlap with sea space used by the Navy 

at the Point Mugu Sea Range, the 

Northwest Training Range Complex, 

and the Naval Undersea Warfare Center 

Keyport Range Complex. The Navy 

identified national security impacts if 

critical habitat were to be designated for 

the areas identified above, as critical 

habitat may restrict or prohibit 

implementation of required training and 

result in impacts to the Navy’s readiness 

and ability to perform its mission. 

Therefore, the Navy requested that 

NMFS exclude these areas through the 

4(b)(2) analyses. Additionally, The 

Oregon Military Department also 

identified areas offshore of Camp Rilea 

and recommended that NMFS not 

designate those waters as critical 

habitat. 

Response: In response to the Navy’s 

comments, multiple informal 

discussions occurred between NMFS 

and Department of Defense (DOD). 

During this time frame NMFS revised its 

critical habitat designation to include 

only one PCE, the prey PCE. As required 

by section 4(b)(8) of the ESA, we briefly 

evaluate and describe in this final rule 

to the maximum extent practicable, 

those activities that might occur within 

the areas designated and that may 

destroy or adversely modify critical 

habitat designated or be affected by such 

designation. We conclude that the 

Navy’s present training activities are not 

the types of activities that may 

adversely modify critical habitat 

designated for the leatherback, 

specifically the prey PCE, or likely to be 

affected by the designation. As a result, 

we conclude that the present Navy 

training activities are not likely to be 

affected by this designation of critical 

habitat. Because designation is not 

likely to affect Navy activities, we 

conclude that the designation would 

have no appreciable impact on national 

security. Through our ESA section 

4(b)(2) analysis, we determined that the 

benefits to national security of exclusion 

do not outweigh the benefits of 

designation. Therefore, Navy training 

ranges and the waters referenced by the 

Oregon Military Department will not be 

excluded for this designation. 

Comment 11: We received comments 

that indicated that there are numerous 

military and government installations 

located within the proposed critical 

habitat. The commenter further stated 

that three military installations within 

the proposed designation are, or have 

recently, been subject to Integrated 

Natural Resource Management Plans, or 

INRMPs, including Vandenberg Air 

Force Base, Presidio of Monterey, and 

the Naval Post-Graduate School. 

Overall, the commenter expressed 

concern that critical habitat would 

negatively impact military and law 

enforcement actions along the U.S. West 

Coast. 

Response: The commenter is correct 

in that there are existing INRMPs for 

military installations within the areas 

under consideration as critical habitat. 

However, under the ESA we must be 

able to conclude that a particular 

INRMP provides a benefit to the species 

at issue, and only then can a particular 

site associated with the INRMP be 

considered ineligible for designation. 

We reviewed the existing INRMPs but 

have determined that none contain 

sufficient information on direct and 

indirect effects on leatherback sea 

turtles, their prey, or the areas occupied 

to conclude that the INRMP would 

provide a benefit to the species. 

Therefore, we considered the areas 

associated with these INRMPs to be 

eligible for consideration as leatherback 

critical habitat. 

Comments on Primary Constituent 

Elements 

Comment 12: Several commenters 

indicated that NMFS should designate 

as critical habitat the passage corridors 

that leatherback turtles use to gain 

access to jellyfish concentrations in 

nearshore waters. Other commenters 

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stated that NMFS did not accurately 

evaluate the migratory pathway PCE of 

each area, as they were given the same 

score when rated for their passage 

conservation value. 

Response: As noted above, in 

response to numerous comments 

regarding migratory corridors, we reevaluated the migratory pathway PCE. 

In our proposed rule, we recognized that 

leatherback turtles must migrate through 

the offshore areas to access foraging 

areas in the nearshore environment; 

however, we acknowledged that it is 

difficult to define specific migratory 

corridor conditions. At this time, we 

cannot identify any known and 

consistent geographically defined 

migratory corridors or discrete areas that 

would consistently contain the features 

that define a migratory corridor for 

leatherbacks off the U.S. West Coast, 

and we have therefore eliminated the 

migratory pathway PCE from this 

critical habitat designation. 

Both NMFS and the USFWS have 

identified some form of passage or 

migration corridors as PCEs in other 

critical habitat designations, but the 

species and the habitat involved differ 

significantly from leatherback sea 

turtles. For example, ‘‘migratory 

corridor’’ was identified as a PCE in 

NMFS’ final critical habitat designation 

for the threatened southern distinct 

population segment (DPS) of North 

American green sturgeon. Through 

tagging studies and fisheries bycatch 

information, researchers found that 

green sturgeon are primarily associated 

with bottom habitats in the ocean and 

travel along the coast in a migration 

corridor that is defined by bathymetry 

(specifically, a 60 fathom contour) (74 

FR 52300; October 9, 2009). Unlike 

green sturgeon, leatherback sea turtles 

are not well associated with bottom 

habitat or bathymetry, travel thousands 

of miles, and occupy the entire U.S. 

EEZ. 

The final critical habitat designation 

for the DPS of Southern Resident killer 

whales (SRKW) identified ‘‘passage 

conditions to allow for migration, 

resting, and foraging’’ as a PCE (71 FR 

229; November 29, 2006). For the 

SRKW, one specific area primarily 

defined by the passage feature was the 

Strait of Juan de Fuca, a relatively 

narrow marine corridor, through which 

all members of this DPS of killer whales 

must pass on their migrations between 

open ocean and coastal waters and 

inland waters and in which all of the 

members of this DPS forage in the late 

spring through the fall. Unlike this DPS 

of killer whales, leatherback sea turtles 

are able to use vast areas within the 

open ocean for migration. 

In addition, the characteristics that 

cause leatherbacks to use an area for 

passage (i.e., the specific biological or 

physical features of habitat) are largely 

unknown. At this time, NMFS cannot 

identify any known and consistent 

geographically-defined migratory 

corridors for leatherbacks off the U.S. 

West Coast. 

Without specific physical or 

biological features predictably occurring 

within a defined geographic area to 

define a passage corridor, such as depth, 

or even a specific location where many 

individuals are likely to pass through to 

access foraging areas, NMFS concludes 

that our previously defined passage PCE 

does not meet the statutory criteria in 

the ESA section 3(5)(A)(i) as 

implemented by our regulatory 

guidance for determining a PCE (50 CFR 

424.12(b)). 

Comment 13: Several commenters 

recommended that NMFS should 

identify water quality as a PCE, with 

specific concerns regarding the impact 

of non-point source pollution, storm 

water runoff, agricultural land runoff, 

plastic debris, trash, and heavy metals 

on leatherbacks and their prey. The 

Center for Biological Diversity (CBD) 

and Defenders of Wildlife expressed 

particular concern about the potential 

impacts of ocean acidification on 

leatherbacks, and cited a number of 

possible impacts ranging from changes 

in prey physiology to food web changes 

that might affect prey availability for 

leatherbacks. 

Alternatively, other commenters 

suggested that water quality should not 

be identified as a PCE, as there is little 

or no information on the effects of water 

quality on sea turtles. 

Response: In response to both 

perspectives, we re-evaluated whether 

to identify water quality as a separate 

PCE. At the proposed rule stage we 

reviewed available literature and 

previous agency determinations 

regarding water quality, and as a result 

did not identify water quality as a 

separate PCE. In our proposed rule we 

specifically requested comments and 

available data on this topic. In response 

to comments, we reviewed literature for 

new information, and we again 

conclude that we currently lack 

information to determine the relative 

impact and importance of water quality 

directly on the health of leatherback sea 

turtles. Thus, we do not identify water 

quality as an independent and separate 

PCE in this final designation. As more 

research is completed, and we learn 

more of the biological and ecological 

requirements of leatherbacks off the U.S. 

West Coast and how water quality and 

specific toxins and contaminants impact 

leatherbacks, we may determine that 

water quality should be a PCE. In our 

proposed rule we specified that the 

quality of the prey PCE is essential to 

the conservation of leatherback turtles 

and that this factor may depend on 

water quality. Adverse modification of 

leatherback critical habitat would result 

from actions that affect prey populations 

to the extent that they cannot provide 

for the conservation needs of 

leatherbacks. 

To ensure that our interpretation of 

water quality as a PCE was appropriate, 

we reviewed all recent NMFS critical 

habitat designations. Of note, the critical 

habitat designations for two marine 

mammals, the Cook Inlet beluga whale 

and the SRKW distinct population 

segment, include water quality as a 

feature essential to the conservation of 

the species. Both of these marine 

mammals have relatively small 

populations that forage on a seasonal 

basis in core areas, such as narrow inlets 

or inland waters adjacent to urban areas 

with large human populations or 

industrialization. Cook Inlet belugas are 

not known to migrate, and little is 

known of the offshore movements of 

SRKWs following their summer/fall 

residency in ‘‘core’’ inland areas. 

Research has shown that killer whales 

accumulate high concentrations of 

contaminants, including PCBs, DDT, 

heavy metals and flame retardants, 

which may induce immune suppression 

or reproductive impairment and this 

may be having population level effects 

and impeding their recovery. NMFS 

determined that water ‘‘free of toxins’’ 

was essential to the conservation of the 

Cook Inlet beluga and ‘‘water quality to 

support growth and development’’ was 

essential to the conservation of the 

SRKWs given these species’ limited 

range during all or parts of the year. 

In contrast to SRKWs, leatherbacks 

are wide ranging, and the population as 

a whole does not depend on one or 

more ‘‘core’’ areas to access their prey. 

In addition, leatherbacks do not use 

inland waterways, where land-based 

and nearshore sources of pollution may 

present a greater threat to their recovery. 

In response to specific concerns 

regarding ocean acidification, we 

acknowledge that there is growing 

concern that rising concentrations of 

atmospheric carbon dioxide will change 

the ocean’s carbonate chemistry system 

(e.g., acidification/declining pH), and 

that those changes are expected to affect 

various biological and geochemical 

processes in the marine environment 

(Kleypas et al. 2006, Fabry et al. 2008). 

However, relating those changes to 

impacts on leatherback turtles and their 

prey remains speculative. For example, 

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Attrill et al. (2007) recently analyzed 

data from the North Sea and noted 

increased jellyfish occurrence in years 

where the water was more acidic. They 

suggested that increasing acidity may be 

detrimental to calcareous, skeletonforming plankton and thus allow 

proliferation of jellyfish/gelatinous 

organisms into those niches. On the 

other hand, Richardson and Gibson 

(2008) reviewed this work and analyzed 

a larger geographic area, but they found 

no significant relationships between 

jellyfish abundance and acidic 

conditions in any of the regions 

investigated. These authors concluded 

that it would be tenuous to assign a 

specific role to pH in structuring 

zooplankton communities, and also 

noted that it is possible that more acidic 

conditions could have negative effects 

on jellyfish. However, even those effects 

are speculative: Recent work by Winans 

and Purcell (2010) concluded that moon 

jelly polyps are quite tolerant of acidic 

conditions; surviving and reproducing 

asexually even at the lowest tested pH. 

Given these recent reviews and studies, 

it is not clear what if any impacts ocean 

acidification may have on jellyfish, and 

there is much less information available 

on the potential impacts of ocean 

acidification directly on leatherback sea 

turtles. Therefore, it would be equally 

speculative to suggest that we can 

presently identify tangible management 

considerations to address ocean 

acidification’s influence on leatherback 

turtles or their prey. 

Comments on the Economic Analysis 

Comment 14: One commenter 

questioned NMFS’ use of the ‘‘costeffectiveness’’ analysis. The commenter 

cited two sources (Loomis 2006 and 

Kroeger 2004) to help NMFS use a 

common metric to be able to estimate 

economic benefits rather than 

conservation benefits. Additionally, the 

commenter stated that for leatherback 

turtles the conservation benefits are no 

more difficult to measure than costs. 

The commenter suggested a specific 

methodology in papers by Loomis 

(2006) and Kroeger (2004), which would 

be applicable to valuing the benefits of 

designating critical habitat for 

leatherbacks. The commenter also noted 

that the approach used in the proposed 

rule compared apples and oranges 

within the context of economic costs 

and conservation benefits. 

Response: As discussed in Section 

1.2.1 of the economic analysis report, 

we used a form of cost-effectiveness 

analysis, which develops an ordinal 

measure of the benefits of critical 

habitat designation. Since it is difficult 

to monetize or quantify benefits of 

critical habitat designation, expert 

judgment is used to classify habitat 

areas based on their estimated relative 

value to the conservation of the species. 

For example, habitat areas can be rated 

as having a high, medium, or low 

biological value. A qualitative ordinal 

ranking, which can be done with 

available information, may better reflect 

the state of the science for the 

geographic scale considered here rather 

than a quantitative measure which 

depends on several assumptions. The 

ESA section 4(b)(2) analysis discusses 

the cost comparison process when 

evaluating whether to exclude areas 

from the designation. 

We question the claim that the 

benefits of a critical habitat designation 

for leatherback turtles are no more 

difficult to measure than costs, and that 

the methodology in the referenced 

papers by Loomis (2006) and Kroeger 

(2004) would be applicable to valuing 

the benefits of designating critical 

habitat for leatherbacks. The referenced 

papers both rely on a benefits transfer 

approach to obtain a monetary value of 

policy measures. Kroeger (2004) 

provides a list of conditions that must 

be met in order for the benefits transfer 

methodology to be valid. 

Benefit transfer methodology is used 

in Loomis (2006) to measure the value 

of increasing the number of sea otters in 

a clearly defined geographic range of the 

California Coast, and in Kroeger (2004), 

to measure the value of improved lynx 

conservation and conservation of 

natural landscapes. In both cases, the 

type and magnitude of the expected 

policy impacts are simple to describe 

with respect to the nature of the 

impacts, the geographic region where 

they would be realized, and the 

population which would be directly 

affected. By contrast, the anticipated 

type and magnitude of expected policy 

impacts due to critical habitat 

designation for leatherbacks are far less 

certain. 

The vast uncertainty regarding the 

scope of a potential conservation benefit 

from this designation calls into question 

whether the policy context can be 

defined to a level of precision that meets 

Kroeger’s (2004) qualifications. 

By contrast, potential costs of 

regulatory measures are relatively easier 

to assess, due to the existence of 

financial data for entities impacted by 

previous critical habitat designations. 

There are numerous precedents for 

using cost effectiveness analysis or 

similar approaches, including economic 

analysis to measure regulatory impacts 

of critical habitat designation for salmon 

and steelhead, and for green sturgeon. 

We further note that the criticism of 

the use of an ‘‘apples and oranges’’ 

comparison of economic costs of 

designation with the biological benefits 

of designation ignores a similar problem 

with the benefits transfer approach 

utilized in the Loomis (2006) and 

Kroeger (2004) studies. The benefits 

transfer methodology relies on benefit 

estimates from stated preference 

valuation studies, which assign a 

monetary value to a policy change using 

data from a survey that asks respondents 

to make an ‘‘apples and oranges’’ 

comparison between a hypothetical 

monetary cost of the policy change 

(their ‘‘willingness to pay’’) and the 

biological benefits the policy is 

supposed to create. It is unclear that 

asking untrained survey participants to 

report the subjective monetary cost they 

would be willing to bear in exchange for 

complicated and uncertain biological 

benefits will automatically result in a 

better policy assessment than relying on 

trained experts to subjectively compare 

biological benefits to monetary cost 

estimates. 

Comment 15: One commenter 

questioned the framework and 

assumptions for the analysis of the 

range in total administrative 

consultation costs. Specifically, the 

costs are based on national data as 

opposed to data based solely on U.S. 

West Coast marine-related species. The 

commenter also stated that there was no 

explanation provided in order to justify 

the assumptions given for each category 

of costs. 

Response: We do not have sufficient 

data for administrative costs specific to 

the U.S. West Coast to support 

statistically meaningful statements. We 

therefore used the best available data, 

which was based on a national level 

sample. 

Section 1.3.2 of the economic analysis 

discusses the assumptions made with 

regard to administrative costs of ESA 

section 7 consultations. For example, 

costs associated with re-initiation of 

consultation, which would occur solely 

because of the critical habitat 

designation, are assumed to be 

attributed wholly to the critical habitat 

designation, and further assumed to be 

approximately half the cost of the 

original consultation that considered 

only jeopardy to the ESA listed species. 

We feel this is a valid assumption 

because re-initiations are less timeconsuming, since the groundwork for 

the project has already been considered 

in terms of its impact on the species. We 

feel this is also a valid assumption due 

to the efficiencies in conducting an ESA 

section 7 consultation on both jeopardy 

to the species and adverse modification 

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4178 Federal Register / Vol. 77, No. 17 / Thursday, January 26, 2012 / Rules and Regulations 

to critical habitat at the same time (e.g., 

in staff time saved for project review 

and report writing). Because leatherback 

sea turtles are already listed as 

endangered, the critical habitat 

designation adds only incremental 

administrative costs when considering 

adverse modification in consultations 

that are already required under the ESA 

for the species. 

Comment 16: One commenter 

questioned how the ‘‘additional indirect 

impacts’’ were calculated and stated 

that the property value impacts in the 

draft economic analysis were incorrectly 

measured and overstated. The 

commenter also stated that there will 

not be an impact on individual land 

owners since the property value is 

marine-based and that research 

indicates that property values actually 

increase as a result of critical habitat 

designation. 

Response: While the designated 

critical habitat is located in the marine 

environment, some of the activities 

analyzed in the economic analysis are 

land-based (such as National Pollution 

Discharge Elimination System (NPDES) 

permitted facilities, agricultural 

pesticides, power plants, and 

desalination plants). It is the perceived 

limitations and restrictions of the landbased economic activities that are 

assumed to reduce the market value of 

property adjacent to critical habitat in 

comparison to property that is not 

adjacent to critical habitat. Further 

research has described a positive impact 

on property values due to residential 

and commercial development. Our 

economic analysis does not include 

either the potential reduced or increased 

market value of property in our 

estimation of the total economic impact 

of this critical habitat designation. 

Therefore, we have not revised our cost 

estimates in response to this comment. 

Comment 17: One commenter 

disagreed with the draft economic 

analysis’ method for assessing 

incremental impacts. One comment 

states that NMFS’ consideration of all 

potential project modifications that may 

be required under section 7 of the ESA, 

regardless of whether those changes 

may also be required under the jeopardy 

provision, appears to be contrary to the 

reasoning of the N.M. Cattle Growers 

Association v. U.S. Fish and Wildlife 

Service, 248 F.3d 1277, 1283 (10th Cir. 

2001), Ariz. Cattle Growers Association 

v. Kempthorne, 534 F. Supp. 2d 1013 

(D. Ariz. 2008) and Cape Hatteras 

Access Pres. Alliance v. U.S. 

Department of the Interior, 344 F. Supp. 

2d 108 (D.D.C. 2004) court decisions 

that the effects of listing and the 

jeopardy provision should not be 

considered as part of the impacts of a 

designation in the ESA 4(b)(2) analysis 

for a critical habitat designation. 

Another comment noted that the draft 

economic analysis did not adequately 

describe the methodology of how the 

incremental scores were developed and 

therefore appeared to result in arbitrary 

conclusions. Specifically, the economic 

analysis needed more explanation 

regarding the percentages attributed to 

the incremental scoring. 

Response: As outlined in Section 1.3 

of the economic report, the analysis 

does not attribute all potential project 

modifications required under section 7 

to the critical habitat designation. 

Rather, it compares the state of the 

world with and without the designation 

of critical habitat for leatherbacks. This 

approach has been reviewed and 

determined legally valid by the courts 

(see Arizona Cattle Growers v. Salazar, 

606F. 3d 1160 (9th Cir. 2010)). The 

‘‘without critical habitat’’ scenario 

represents the baseline for the analysis, 

considering habitat protections already 

afforded leatherbacks under its Federal 

listing or under other Federal, State, and 

local regulations, including those 

afforded leatherbacks due to other listed 

species, such as green sturgeon, West 

Coast salmon and steelhead, delta smelt, 

and marine mammal species. The ‘‘with 

critical habitat’’ scenario attempts to 

describe the incremental impacts 

associated specifically with leatherback 

critical habitat designation. NMFS has 

put forth its best effort to consider the 

incremental cost of this critical habitat 

designation as compared to the world 

without this critical habitat designation. 

Although some level of protection 

would already be expected to exist 

under the listing of leatherbacks, we 

were unable to completely separate 

those costs. Section 1.4.4 of the 

economic analysis report discusses how 

incremental scores were developed. In 

response to this comment, we added 

information to this section to further 

clarify how the incremental scores were 

derived for each activity in each area. 

To assign incremental scores, we first 

systematically reviewed existing laws 

and regulations, overlap with previously 

designated critical habitat and other 

relevant information for each activity in 

each of the three specific areas of the 

leatherback critical habitat. The output 

of this analysis resulted in qualitative 

ratings (high, medium, low) for each of 

the seven economic activities in each 

area. This process and results are 

discussed in our economic report. Based 

on these ratings, we then relied on the 

best professional judgment of the CHRT, 

to calculate the probability that 

leatherback critical habitat would be the 

primary driver of project modifications 

identified for each economic activity in 

each area. This probability is dependent 

upon a number of factors, including the 

details of current and potential projects 

and conservation efforts and the number 

of sensitive species present. By 

excluding impacts for which 

leatherback critical habitat is not a key 

reason for a conservation effort, this 

analysis focuses the quantification of 

impacts on those associated specifically 

with leatherback habitat conservation. 

Because the probability that any given 

conservation effort is being driven by 

leatherback conservation as opposed to 

other laws or regulations is uncertain, 

the economic analysis report presents a 

sensitivity analysis for these 

assumptions. Appendix C of the 

economic analysis describes alternative 

results assuming the extreme case that 

leatherbacks are always a primary driver 

of the conservation efforts (e.g., that 100 

percent of the time fish screens are 

installed, it is primarily due to 

leatherback conservation needs). 

Comment 18: One commenter states 

the 7 percent discount rate assumed in 

measuring costs is unreasonable and 

instead should utilize a ‘‘social’’ 

discount rate of 2–3 percent. 

Response: In applying discount rate, 

we relied on guidance issued by the 

Office of Management and Budget 

(OMB) in Circular A–94, which states 

that a 7 percent discount rate should be 

used as a base-case for regulatory 

analysis to approximate the marginal 

pre-tax rate of return on an average 

investment in the private sector in 

recent years (before 1992). We also 

followed OMB Circular A–4, which 

indicates that estimates using a 3 

percent discount rate should also be 

provided for regulatory analyses. Thus, 

our analysis provides present 

discounted values using discount rates 

of 3 and 7 percent. Given the present 

low interest rate environment, we 

consider the present values discounted 

at 3 percent to better reflect current 

economic conditions. 

Comment 19: One commenter 

questioned NMFS’ description of how 

various economic activities would 

impact the PCEs. Furthermore, the 

commenter stated that NMFS’ 

estimation of the likelihood that such 

activities would require potential 

project modifications was also very 

weak. 

Response: Due to a limited 

consultation history associated with 

many of the activities described, the 

CHRT was not able to estimate the 

likelihood of modifications to economic 

activities as a result of this critical 

habitat revision. Section 1.4.4 clarifies 

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how the uncertainty in identifying: (1) 

Which particular projects will in fact 

take place in critical habitat areas; and 

(2) which projects action agencies may 

consider to potentially result in the 

adverse modification or destruction of 

designated critical habitat for 

leatherbacks, leads to the assumption 

that all projects will go forward and all 

projects will require modification. Thus, 

the analysis is conservative, i.e., more 

likely to overestimate impacts to critical 

habitat rather than underestimate them. 

Comment 20: One commenter stated 

that the assumption made that all 

NPDES capital costs are incurred in first 

year is not correct. 

Response: Section 2.1.3 of the 

economic analysis provides a revised 

discussion of how the cost estimates for 

major NPDES-permitted facilities were 

developed. Note that capital costs 

originally presented were presented in 

value form, thus no additional 

discounting was needed. Costs are now 

presented in annual terms; however, 

note that the per-facility-cost remains 

the same. 

Comment 21: One commenter 

disagreed with the draft economic 

report’s method for assessing 

agricultural pesticide application. The 

commenter stated the draft economic 

report analyzed impacts from 

agricultural pesticide application on the 

leatherback prey and not to the 

leatherbacks themselves. Also, the 

commenter disagreed with the 

assumption that similar restrictions 

would be imposed on pesticide use to 

protect turtle habitat as are imposed to 

protect salmon habitat. Lastly, the 

commenter disagrees with the 

assumption that all crops will be lost as 

a result of restrictions on pesticide 

application. 

Response: In estimating the economic 

impact of designating critical habitat, 

we must estimate the incremental costs 

associated with the designation and 

thus consider activities that may impact 

the essential features of the critical 

habitat. Impacts of an activity on 

leatherbacks themselves are not 

appropriate for us to consider when 

estimating the cost of designating this 

critical habitat. In this case we have 

identified the leatherback’s prey, 

jellyfish, as the essential feature of the 

habitat. Therefore, our economic report 

considers how each activity may impact 

the quality, quantity, and density of 

prey. The project modifications and the 

methodology used in the leatherback 

critical habitat economic analysis were 

similar to that used in the salmon/ 

steelhead and green sturgeon critical 

habitat analyses to calculate costs (i.e., 

foregone value from crop sales). 

However, in light of this comment, we 

reviewed this analysis and considered 

the series of Biological Opinions that 

have been issued by NMFS on various 

pesticides. 

Reasonable and prudent alternatives 

of recent Biological Opinions that 

considered the effects of pesticides on 

listed salmonids indicate that total crop 

loss is not a realistic outcome. We also 

considered the recent economic analysis 

conducted in support of the critical 

habitat designation for black abalone 

along U.S. West coast areas (76 FR 

66806; October 27, 2011). This analysis 

acknowledged that concentrations and 

effects of pesticide ingredients in 

marine waters are unknown. Based on 

this information, we cannot assume 

total crop loss is a reasonable outcome 

of any project modification due to 

leatherback critical habitat. There is 

currently insufficient data to determine 

what, if any, project modification would 

be required. Therefore, we have revised 

our economic analysis to include a 

qualitative discussion of potential 

impacts of pesticides and have removed 

the estimated costs associated with this 

activity. 

Comment 22: One commenter states 

the total costs of power plants in Area 

7 are not estimated correctly. The 

commenter refers NMFS to other 

sources that provide costs of retrofitting 

power plant facilities. 

Response: In response to this 

comment, we reevaluated information 

regarding the impact of power plants on 

the leatherback critical habitat and 

concluded that the impact to the 

leatherback prey from thermal effluent 

is so uncertain that it is not reasonable 

to attribute the project modifications 

suggested in the Tetra Tech (2008) and 

Enercon (2009) documents and their 

associated costs to the designation of 

leatherback critical habitat. The costs 

found in these documents are associated 

with drastic transformations of the 

facilities that are not expected to be 

imposed on the plants as a result of an 

ESA section 7 consultation on 

leatherback critical habitat. With no 

other potential costs to use in our 

analysis, we determined that a 

qualitative approach would be the best 

way to address power plants. 

Comment 23: One commenter states 

that while the Diablo Canyon Nuclear 

Power Plant’s (DCNPP’s) NPDES permit 

allows the use the auxiliary salt water 

biofouling control system and the 

‘‘firewall,’’ the DCNPP does not in fact 

utilize it. The comment also noted that 

while freshwater is occasionally added 

to the discharge, freshwater has never 

been used as an anti-biofouling 

technique. 

Response: While the DCNPP does not 

currently utilize the auxiliary salt water 

biofouling control system and the 

‘‘firewall,’’ the fact remains that it is still 

in place and thus it could potentially be 

used at some point in the future. NMFS 

will work with the operators of the 

DCPP and the Federal permitting agency 

to aid in assessing impacts and to 

determine whether to re-initiate 

consultation on its NPDES permit due to 

adverse modification to critical habitat. 

Comment 24: One commenter states 

that the desalination plant at the DCPP 

should not require project modifications 

to protect leatherback critical habitat, 

since impingement and entrainment are 

low at the DCPP. The commenter also 

states that the amount of water that 

flows through the DCPP desalination 

intake pump is insignificant. 

Response: NMFS will work with the 

operators of the DCNPP as they assess 

whether re-initiation of consultation is 

necessary. 

Comment 25: One commenter 

questions the use of costs for 

desalination plant impacts, due to their 

uncertainty. 

Response: We acknowledge that there 

is uncertainty; however, we relied on 

the best available data in order to 

develop an estimated cost. We provide 

further discussion of the assumptions 

made in the economic report. 

Comment 26: One commenter 

questions the draft economic analysis’ 

use of the potential cost estimate of 

future tidal and wave energy projects; 

specifically, where identified facilities 

overlap with green sturgeon critical 

habitat. 

Response: Although there are no tidal 

and wave energy projects currently in 

the specific areas identified, the 

economic analysis attempts to measure 

the scope of the potential impacts over 

a 20-year time frame. This involves 

predicting the occurrence and impacts 

of future projects. 

All of the projects listed are in some 

sort of proposed stage and have not 

actually been built yet. It is uncertain 

which projects will actually be built and 

the number of future projects that may 

be proposed. The projects identified in 

the economic analysis are our best 

approximation of the number of tidal 

and wave energy projects that will exist 

in the applicable time period, based on 

available information. The economic 

report describes the methods we used to 

develop our estimates. 

Comment 27: One comment provided 

additional information on the location 

of tidal and wave energy projects. The 

comment specifically describes one 

additional alternative energy project 

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permit that had been issued since the 

proposed rule was published. 

Response: The economic analysis now 

includes an up-to-date list of projects, 

including the one described by the 

commenter. 

Comment 28: Several comments state 

that wind energy should be considered 

for its impacts to both prey and passage 

PCEs because it ‘‘may’’ require special 

management consideration or 

protections. One commenter questions 

NMFS’ treatment of wind energy in 

relation to other activities that were 

discussed qualitatively. Another 

commenter provides additional 

information on the location of two 

proposed wind energy projects. 

Response: As described elsewhere in 

this notice, we have eliminated the 

passage PCE and thus the response to 

this comment will only pertain to the 

prey PCE. After reviewing the 

information on the two proposed wind 

energy projects, NMFS has concluded 

that there is a project, the Principal 

Power Offshore Wind Project, which is 

currently being proposed in Oceanside 

and Netarts, OR (Area 2). The second 

proposed wind energy project identified 

by the commenter, the Grays Harbor 

Ocean Energy and Coastal Protection 

project, missed the submittal of the 

Notice of Intent, and the Federal Energy 

Regulatory Commission (FERC) 

cancelled the preliminary permit in 

September 2010. 

Section 2.6 of the Economic Report 

provides a revised discussion. The 

‘‘Tidal and Wave Energy’’ activity is 

now known as ‘‘Tidal, Wave, and Wind 

Energy.’’ Leatherback sea turtles 

primarily use the west coast neritic 

waters for foraging, with the greatest 

density of turtles off the California coast 

within the 200 m isobath. Therefore, 

some overlap may be expected between 

the prey PCE and potential coastal wind 

energy projects. 

Comment 29: One commenter 

suggests that assignment of the 

economic thresholds be given more 

explanation in the economic analysis. 

Response: In the proposed rule, we 

compared the economic costs and 

conservation benefit of 8 areas, and we 

determined that 4 thresholds (high, 

medium, low and ultra low) would be 

necessary to adequately compare costs 

and benefits of these areas. The 

economic thresholds were determined 

by looking at a combination of values 

for each area, both total revenue for the 

activities identified in the proposed 

rule, as well as the costs we associated 

with the designation of critical habitat 

in each area. The high threshold was 

determined based on the revenue of 

each area, and we calculated the total 

revenue for each activity by area. The 

area with the highest revenue was Area 

7; therefore, we took 3% of the total 

revenue for this area, which was 

between $20 million and $30 million. 

We then listed the high threshold at $20 

million, assuming that any costs greater 

than 3% of total revenue would 

potentially be considered high 

economic costs to the industry. The 

other thresholds were determined based 

on area costs for this critical habitat 

designation. 

The economic thresholds were reevaluated during the final rule 

development and it was determined that 

the thresholds were appropriate for use 

in this final rule. Please see the section 

below, ‘‘Exclusion of Particular Areas 

Based on Economic Impacts,’’ for 

additional information. 

Comment 30: Some commenters 

stated that they were unclear regarding 

the comparative analysis, specifically in 

the offshore areas where the relative 

value of migratory passage PCE is high 

and the economic costs are low. 

Response: As noted earlier in this 

final rule, NMFS has eliminated the 

migratory pathway PCE, and has 

determined that the offshore areas do 

not meet the definition of critical habitat 

when evaluated for the presence of the 

prey PCE. Therefore, economic costs for 

the offshore areas are not evaluated in 

this final designation. 

Comments on Activities That May 

Require Modification Through a Section 

7 Consultation 

Fishing and Fishing Gear 

Comment 31: Oregon Governor 

Kulongoski commented that, in 

December 2009, the Oregon Fish and 

Wildlife Commission terminated a 

program that allowed use of large mesh 

drift gillnet gear targeting swordfish in 

Oregon waters. There had been no drift 

gillnet fishing under the permit program 

since 2004. 

Response: This has been noted. NMFS 

appreciates the information. 

Comment 32: The National Park 

Service commented that NMFS should 

consider the interaction between 

leatherback sea turtles and crab pots in 

the region of Point Reyes. 

Response: The impact of crab pots on 

leatherbacks constitutes a direct take of 

turtles. Most pot fisheries along the U.S. 

West Coast are state fisheries and 

therefore a direct Federal nexus 

requiring an ESA section 7 consultation 

on the jeopardy standard is not present. 

If state pot fisheries are known to 

interact with leatherback turtles via 

entanglement, the states should apply 

for an ESA section 10(a)(1)(B) incidental 

take permit. The take of leatherback sea 

turtles without exemption provided by 

an Incidental Take Statement developed 

through formal section 7 consultation 

for a Federal action or authorization 

under a section 10(a)(1)(B) Incidental 

Take Permit for a non-Federal action 

constitutes an unauthorized take under 

section 9 of the ESA. 

Comment 33: Several commenters, 

including the California Coastal 

Commission, Defenders of Wildlife, 

CBD, and several other organizations, 

commented that the regulation of the 

fishing industry is an activity that 

affects the proposed PCE passage. These 

and other commenters also urged NMFS 

to consider prohibiting use of drift 

gillnets or longlines within designated 

critical habitat for the protection of the 

species. Commenters stated that the use 

of fishing gear within critical habitat 

would greatly restrict migration and 

adversely modify the habitat. 

Response: We acknowledge that 

fishing gear has the potential to capture, 

entangle and kill leatherback sea turtles. 

Federal fisheries that operate within 

U.S. waters, where leatherbacks are 

known to occur, are subject to ESA 

section 7 consultation for their direct 

and indirect impacts to the species. As 

mentioned above, the take of 

leatherback sea turtles by a Federal or 

state fishery without an Incidental Take 

Statement through formal section 7 

consultation or a section 10(a)(1)(B) 

permit, respectively, constitutes an 

unauthorized take under section 9 of the 

ESA. NMFS has placed observers on 

Federal and state gillnet fisheries in 

order to monitor bycatch of sea turtles, 

marine mammals and other species. The 

take of turtles in longline fisheries (e.g., 

entanglement or hooking) occurs in 

fisheries that target highly migratory 

species (e.g., tuna, sharks, and 

swordfish). The use of longline gear to 

target highly migratory species is not 

allowed within the U.S. West Coast EEZ 

under the existing west coast fisheries 

management plans, therefore concern 

over possible interactions with this gear 

are unwarranted. There is limited use of 

bottom set longline gear to target ground 

fish. However, this gear is not the same 

type as is used for highly migratory 

species. The gear is set with only two 

vertical lines, and hooks are not 

suspended in the water column but 

rather rest on the bottom of the water so 

the bait is not an attractant to 

leatherbacks or other turtles. As such, 

the risk of entanglement is much lower 

than in other longline fisheries, and 

NMFS knows of no interactions between 

bottom-set longline gear and leatherback 

sea turtles. 

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As a result of this critical habitat 

designation, all Federal activities that 

occur within areas designated as 

leatherback critical habitat and that may 

impact the prey PCE will require 

consultation under ESA section 7. A 

critical habitat designation is not 

intended to determine which activities 

can and should occur within the 

designated area; rather, it provides a 

protective measure requiring 

consultation with NMFS to determine 

the impact to the habitat and any 

modifications of specific activities to 

avoid the adverse modification or 

destruction of critical habitat. 

Further, as stated in response to 

comments above, and fully detailed in 

the section, ‘‘Summary of Changes from 

the Proposed Rule,’’ NMFS has 

eliminated the migratory pathway PCE 

from this critical habitat designation 

and analysis. We received no 

information during public comment that 

fisheries may affect leatherback prey. 

Therefore, we conclude that Federal 

fisheries will not have an impact on the 

leatherback prey PCE, and we have not 

considered the impact of fisheries on 

leatherback critical habitat in this final 

rule. 

Comment 34: Several commenters, 

including the Pacific Fishery 

Management Council, West Coast 

Seafood Processors Association, and 

Alliance of Communities for Sustainable 

Fisheries, and the California Wetfish 

Producers Association (CWPA), 

commented that existing regulations are 

adequately protective of leatherback 

turtles in California, Oregon, and 

Washington waters. Fishermen and their 

organizations commented that fishing is 

not an activity that NMFS should 

include in the list of activities that affect 

the proposed PCEs, for the following 

reasons: (1) Fisheries have no impact on 

jellyfish or oceanographic conditions 

that may impact foraging habitat; and (2) 

fisheries do not impact migratory 

pathways, as the fishing industry has 

already worked to protect leatherbacks 

through modifications to the fisheries as 

a result of the ESA Section 7 process. 

Response: We agree that existing 

regulations on the Federal fisheries 

provide protections to leatherback sea 

turtles in the U.S. West Coast EEZ. 

NMFS further agrees that while sea 

turtles may be directly affected through 

interactions with gear, we have no 

information to indicate that fisheries are 

likely to adversely impact the prey PCE. 

As explained in the economic report, we 

could find no evidence of impact from 

fisheries on leatherback prey; there are 

no jellyfish fisheries, and jellyfish are 

not a substantial bycatch species in 

existing fisheries. Additionally, as 

stated above, we have eliminated the 

migratory pathway PCE from this 

analysis. Therefore, we will not be 

discussing impacts to leatherback 

migration from fisheries. 

Shipping Traffic and Oil Spills 

Comment 35: Several commenters, 

including Defenders of Wildlife and 

CBD, stated that the proposed 

designation should include 

consideration of potential impacts to the 

shipping industry through the 

designation of critical habitat, as it is an 

activity that diminishes the quality of 

leatherback turtle habitat. Another 

commenter stated that NMFS failed to 

consider the U.S. Department of 

Transportation’s plans to expand 

America’s marine highway, and the 

commenter stated that this designation 

may hinder shipping to and from the 

U.S. West Coast. 

Response: We agree that ship strikes 

result in sea turtle mortality. However, 

as mentioned previously, we have 

eliminated the migratory pathway PCE; 

therefore, this critical habitat 

designation will not further evaluate the 

impact of shipping on sea turtle 

migration. We could not determine any 

means by which shipping would affect 

the prey PCE. As such, and given the 

elimination of the PCE passage, we did 

not further investigate the impacts of the 

shipping industry on leatherback 

critical habitat. 

As additional information related to 

these comments, NMFS is engaged in 

the development of traffic separation 

schemes (TSS), which are voluntary 

shipping lanes. The TSS are developed 

by the United States Coast Guard 

(USCG), and thus represents a Federal 

action that may be subject to evaluation 

under section 7 of the ESA. NMFS has 

worked closely with the USCG on the 

development of their port access route 

studies for the Long Beach and Los 

Angeles area and the San Francisco area 

to provide technical assistance on the 

presence and abundance of various 

protected species, including leatherback 

sea turtles. The USCG has been advised 

of their responsibilities as a Federal 

agency taking an action that may affect 

species listed on the ESA and 

designated critical habitat. Thus, when 

and if the USCG proposes changes to the 

existing TSS, we anticipate that NMFS 

will conduct an ESA section 7 

consultation. 

With regard to the comment on 

America’s marine highways, as a 

Federal agency, the Department of 

Transportation is already required to 

initiate consultation with NMFS if its 

actions, such as increasing shipping 

traffic, may impact listed species and 

designated critical habitat, such as 

leatherback sea turtles. 

Question 36: Several commenters, 

including the Minerals Management 

Service (now referred to as BOEM, 

Bureau of Ocean Energy Management), 

commented on the discussion in the 

proposed rule regarding the response to 

oil spills, such as the use of dispersants, 

booms, or skimmers, and the potential 

for these activities to affect leatherback 

turtles and their habitat. Commenters, 

including the NOS, also questioned the 

evaluation of oil spills and oil spill 

response, and the costs associated with 

such response. 

Response: In response to the 

comments specifically addressing oil 

spill response and the way this activity 

type was evaluated in the draft 

economic report and the proposed rule, 

we expanded our research on this 

subject and met with the USCG to better 

understand the costs associated with oil 

spill response and the potential impacts 

on both leatherback sea turtles and their 

prey species. We also focused effort on 

determining the differences between oil 

spill responses in nearshore areas versus 

the offshore areas. As noted previously, 

we have determined that offshore areas 

do not contain the prey PCE as we have 

defined it. However, we did spend time 

trying to understand the likelihood of 

response in offshore and nearshore areas 

in order to address these questions. The 

results of that research are provided 

below. 

Oil spill response is guided by Area 

Contingency Plans (ACPs) and Regional 

Contingency Plans (RCPs), developed by 

the USCG in coordination with state and 

Federal partners, and usually focuses on 

nearshore waters and coastlines. While 

the plans may have some strategies for 

response in open ocean areas, 

specifically in situations where there is 

a threat to land and sensitive shoreline 

resources, there are no existing 

protocols for offshore oil spill response, 

and the decision on how and whether 

to respond is left to the Federal On 

Scene Coordinator. 

There are many factors that influence 

the decision to respond to an oil spill, 

including the feasibility and efficacy of 

responding to a spill, particularly in 

offshore areas where weather, ocean 

conditions, and other factors can 

significantly restrict response options 

which the USCG must consider. A 

number of options are considered by the 

USCG regarding the type of response, 

but the most common method for 

controlling and eliminating surface oil 

wherever it is found is via the use of oil 

skimming vessels (referred to as 

mechanical recovery). In rare cases 

where the seas are relatively flat, in-situ 

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burning may be employed. The 

operational effectiveness of both 

mechanical recovery and in-situ burning 

operations dramatically decreases with 

sea states above a 2-foot chop or 5- to 

6-foot swell. Sea states off the U.S. West 

Coast, particularly in the offshore areas, 

often preclude the use of mechanical 

recovery techniques, thus the use of 

chemical dispersants is usually the 

preferred option in offshore waters. In 

general, the use of dispersants may 

temporarily increase the risk to the 

plankton community in the upper 

several meters of the water column but 

this risk is likely to be short-term and 

geographically limited (California 

Dispersant Plan, 2008). The impact of 

dispersants and dispersed oil on 

jellyfish is not well known, but putting 

oil into the water column via 

dispersants may actually be more 

detrimental to jellyfish than not 

applying dispersants; therefore a 

response in offshore waters may not 

necessarily benefit critical habitat for 

leatherbacks. In fact, the best approach 

in terms of impacts to prey PCE may be 

to not respond to the spill and instead 

rely on natural means such as 

evaporation to remove the oil and keep 

it out of the water column. 

As mentioned previously, we have 

eliminated the migratory pathway PCE, 

and have determined that the offshore 

areas do not contain the prey PCE, as 

defined in this final rule. Therefore, the 

offshore areas are not eligible for 

designation as critical habitat. As such, 

this final designation only evaluates oil 

spill response and its potential impact 

on our prey PCE in Areas 1, 2, and 7. 

Since these areas are in the nearshore 

environment, it is likely that USCG will 

respond to a spill that occurs in these 

areas. In our proposed rule, we made 

the assumption that if critical habitat 

were designated, then the USCG may be 

more likely to launch a response to 

clean up the oil using chemical 

dispersants or other response 

techniques, and we developed 

associated costs for response based on 

this assumption. However, after 

additional research on oil spill 

response, we have determined that 

making this assumption does not 

necessarily reflect what is likely to 

occur in the event of an oil spill in 

Areas 1, 2 and 7. That is, the existence 

of leatherback critical habitat is likely to 

play a small part in the decision making 

on whether to respond and how to 

respond. Each spill is unique, and 

response is determined based on many 

complex factors, such as the type of oil, 

sea state, availability of mechanical or 

chemical materials, and risk to 

resources, particularly shoreline 

resources. Along the U.S. West Coast, 

NMFS is becoming more actively 

engaged in oil spill response planning 

and is reviewing ACPs and RCPs and 

providing information on protected 

species, including leatherbacks. Oil spill 

response is not like other Federal 

activities considered in this final rule. 

The ESA section 7 consultation occurs 

after the Federal activity (spill response) 

has occurred, through emergency 

consultation procedures, so there is 

limited opportunity to change activities 

during a response if a finding of 

jeopardy or adverse modification/ 

destruction is made. NMFS’ engagement 

at the ACP and RCP level is likely the 

optimal means of raising awareness of 

leatherback critical habitat and working 

within the spill response community to 

make changes to response protocols to 

protect critical habitat. At this time, we 

do not know what types of activities we 

would request that USCG modify to 

protect critical habitat during an oil 

spill response; therefore, we are unable 

to assign a dollar value to this activity. 

In the proposed rule and draft 

economic report, the costs associated 

with spill response were based upon a 

model developed and published by 

Etkin (1999). The costs associated with 

spill clean-up using the model were 

quite low, less than $100,000. Since 

publication of the proposed rule, and as 

discussed above, we thoroughly 

evaluated several different options for 

oil spill costs, but there is no way to 

reliably predict what incremental effect, 

if any, critical habitat for leatherbacks 

would have on these costs. Accordingly, 

this rule includes no quantitative 

estimates of the incremental costs of 

critical habitat designation for 

leatherbacks on the cost of oil spill 

response. 

Comment 37: Representative Woolsey 

noted that Area 3 is currently being 

considered by the Department of 

Interior for an oil lease, and requested 

that this be considered as an activity 

that may require modification through a 

section 7 consultation. 

Response: We acknowledge that we 

did not directly consider oil leasing in 

our proposed designation, and intended 

to include this proposed leasing action 

in our final designation. However, we 

have since determined that Area 3, the 

location for the potential leasing is not 

eligible for designation as critical 

habitat as it does not contain the prey 

PCE. Therefore, further analysis of 

potential oil leasing in this area is not 

necessary. 

With regard to existing oil platforms, 

we included the consideration of oil 

spills and leaks associated with existing 

platforms in our analysis of oil spill 

response. 

Comment 38: Commenters expressed 

uncertainty about the occurrence of 

point source pollutants and pesticides 

residue in marine waters, and 

recommended that we consider the 

potential high risk of a shipping-related 

oil spill in the final designation. 

Response: As described above, we 

have further explored the potential for 

oil spills in the marine environment. 

Please see our response to Comment 37. 

Comment 39: Commenters 

specifically mentioned that NMFS failed 

to consider activities such as fishing and 

shipping traffic in areas 4 and 5 when 

excluding these areas from designation 

based on oil spill costs alone. 

Commenters suggested that offshore 

areas, specifically Areas 6 and 8, scored 

high on passage PCE but the overall 

conservation score decreased because of 

a low score for the prey PCE, then were 

eliminated because of economic costs. 

Commenters stated ‘‘it is difficult to see 

NMFS’s rationale for excluding these 

areas in the proposed rule.’’ 

Response: As mentioned previously, 

we have eliminated the migratory 

pathway PCE, and we re-evaluated 

Areas 4, 5, 6 and 8, as well as our new 

Area 9, to determine if they contain the 

prey PCE. We found that Areas 4, 5, 6, 

8, and 9 do not contain the prey PCE 

and therefore do not meet the definition 

of critical habitat and are not eligible for 

designation as critical habitat. 

Therefore, the ESA section 4(b)(2) 

analysis has been modified accordingly 

and now focuses on Areas 1, 2, and 7. 

Please see responses above for more 

specific information on shipping and 

fishing and impacts on prey PCE. 

Comment 40: The U.S. West Coast 

National Marine Sanctuaries office 

noted that the entrance to the Strait of 

Juan de Fuca is an area of concern for 

oil spills due to vessel traffic and urged 

NMFS to consider this in final analysis. 

Response: The southern portion of the 

entrance to the Strait of Juan de Fuca is 

included in Area 2. As noted above, we 

have re-evaluated the assumptions made 

in the proposed rule about oil spill 

response costs and we have considered 

the potential for oil spills to occur in 

this area. As described above, we have 

looked at the potential for oil spills to 

occur in coastal areas and determined 

that we can not quantify the costs of 

changes that would be made as we do 

not, at this time, know the types of 

changes that may be necessary to protect 

critical habitat during an oil spill 

response. We therefore provide only 

qualitative analysis of the changes. 

Please see our response to Comment 37. 

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Sanctuaries and Marine Reserves 

Comment 41: The National Park 

Service, California Coastal Commission, 

the CWPA, and California Department 

of Fish and Wildlife urged NMFS to 

recognize protections provided to 

leatherback sea turtles and their habitats 

through existing networks of marine 

protected areas along the California, 

Oregon, and Washington coasts. 

Established Marine Protected Areas 

should be considered in economic 

analysis. 

Response: Through the California 

Marine Life Protection Act, Marine 

Protected Areas (MPAs) in California 

state waters are primarily chosen to be 

formed due to the known or potential 

impact of overharvesting fish and to 

protect fish habitat to allow stocks to 

grow. As a result of these comments, we 

further considered the beneficial 

impacts of existing MPAs within the 

three specific areas, through the process 

of developing incremental scores and, if 

warranted, adjusted them accordingly. 

Comment 42: The National Ocean 

Service commented that the addition of 

critical habitat for leatherbacks along 

the west coast is complementary, not 

duplicative of the authorities of the 

National Marine Sanctuary Act. 

Response: NMFS agrees, and this 

clarification has been made in the final 

rule. 

Comment 43: Some commenters 

noted that NMFS should acknowledge 

that the primary neritic foraging areas 

along the central California coast are 

already encompassed through the 

existence of marine reserves. 

Response: NMFS agrees, and this 

acknowledgement has been made in the 

final rule. 

Comment 44: CWPA commented that 

there was little or no input from 

NOAA’s Sustainable Fisheries Division 

(SFD) and no consideration of stateimplemented species and habitat 

protections, specifically California’s 

Marine Life Protection Act, which 

provides protection for high biodiversity 

areas along the California coast. 

Response: NMFS’ SFD works closely 

with the Pacific Fishery Management 

Council. Members of the CHRT attended 

a Council meeting and gave several 

presentations on proposed leatherback 

critical habitat designation to the full 

Council, Management Teams and 

Advisory Subpanels and the Science 

and Statistical Committee, many of 

whose members include staff from the 

SFD. In addition, SFD staff attended the 

leatherback critical habitat public 

hearing held in Carlsbad, California in 

February, 2010 to hear public 

comments. 

Existing protections at the Federal, 

State, and local level were incorporated 

into the analysis via the incremental 

scores developed for economic analysis. 

Comment 45: Several commenters, 

including CWPA, indicate that 

California has implemented marine 

protected areas precisely in upwelling 

and retention areas where leatherback 

sea turtles are found. They also 

questioned why additional protection 

(i.e., critical habitat designation) of 

these same areas is necessary. 

Response: MPAs that have been 

designated off the coast of California 

specify the restrictions placed on users 

of the areas that may pose a threat to 

particular species and/or their habitat. 

We are not aware of any restrictions that 

are included in such MPAs to protect 

and maintain the quality and density of 

leatherback prey, the PCE we have 

identified in revising leatherback 

habitat. The ESA requires that we 

evaluate critical habitat based on 

specific criteria, and the existence of 

other statutes or protected areas does 

not preclude the ability or our 

requirement to designate critical habitat. 

However, we acknowledge that existing 

protections are important and they are 

taken into consideration during the 

incremental scoring process as part of 

the existing baseline. 

Comment 46: Some commenters 

noted that Monterey Bay and Gulf of 

Farallones are two important sites for 

leatherback foraging along the central 

California coast that are already 

encompassed in National Marine 

Sanctuaries and the State of California 

MPAs, and that therefore critical habitat 

in these areas is duplicative and 

unnecessary. 

Response: Please see our previous 

responses to comments 41 and 45 

regarding Marine Protected Areas. 

Offshore Alternative Energy and 

Undersea Cables 

Comment 47: The Defenders of 

Wildlife, CBD, and Pacific Gas & 

Electric commented on the potential 

effects of offshore tidal and wave energy 

and other alternative energy facilities on 

leatherback turtle habitat. In addition, 

BOEM questioned our analysis of how 

alternative energy structures would 

affect leatherback turtle migration 

corridors. 

Response: The effects of wave energy 

and other alternative energy facilities on 

sea turtles or jellyfish is not fully 

understood, particularly because many 

facilities are still in the design phase, 

making it difficult to predict how an 

activity proposed in designated critical 

habitat might require changes to protect 

the leatherback prey PCE. It will be 

necessary for research in this area to 

produce data and analysis that can be 

used during ESA section 7 

consultations. These consultations may 

include modifications to facilities to 

limit or avoid adverse modification or 

destruction of critical habitat. As 

discussed in other sections of this final 

rule, we have eliminated the migratory 

pathway condition PCE; therefore, we 

have not further discussed how 

permanent structures may impact 

leatherback migrations. 

Comment 48: The North American 

Submarine Cable Association 

commented that the activities of their 

member companies have no effect on 

leatherback turtle prey and, accordingly, 

NMFS should state that ESA section 7 

consultations on these activities will not 

be required after NMFS designates 

critical habitat. The Association 

questioned how projects may affect 

benthic stages of jellyfish, especially 

since we lack a thorough description of 

benthic habitat needed for jellyfish and/ 

or a description of where this habitat 

exists off the U.S. West Coast. 

Response: NMFS cannot say which 

activities would not require ESA section 

7 consultation. It is the responsibility of 

the agency taking the action to 

determine if their actions impact listed 

species or designated critical habitat 

and therefore are subject the ESA 

section 7 consultation. We agree with 

the comment regarding the lack of 

information on the specific type and 

location of habitat important to the early 

polyp stages of jellyfish. It is reasonable 

to conclude that some activities that 

involve disturbing benthic substrates 

(like undersea cable installation/ 

maintenance) could affect jellyfish 

particularly in the nearshore areas 

where polyp beds are expected to occur. 

However, given the current best 

available science, we are unable to 

describe such benthic habitat and where 

it may occur. 

General Comments 

Comment 49: Some commenters 

suggested that because the population 

trend for leatherback sea turtles in the 

Western Pacific is unknown, NMFS 

cannot say that excluding areas would 

not cause extinction. 

Response: We acknowledge that the 

overall population trend of leatherback 

sea turtles in the Western Pacific is 

unknown. In our proposed rule, we 

determined that exclusion of specific 

areas based on economic costs would 

not impede conservation or result in the 

extinction of the species. This 

determination was based on the best 

data available regarding the potential 

conservation benefits of the proposed 

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designation in comparison to the 

current level of species protection in 

those areas. Following our review and 

consideration of public comments, we 

made several modifications to the 

proposed rule, which are detailed in 

‘‘Summary of Changes from the 

Proposed Designation.’’ As a result of 

these changes, our analysis under 

section 4(b)(2) of the ESA was also 

revised. In this final rule, we do not 

exclude any areas meeting the definition 

of critical habitat. 

Comment 50: Some commenters 

asserted that designating CH will 

promote data collection and analysis to 

aid in planning for ‘‘resource uses’’ in 

the areas and will become more 

important as the agency implements 

marine spatial planning. 

Response: We agree and are already 

supporting research on the effects of 

contaminants on jellyfish as an 

indicator of health for leatherback sea 

turtles. 

Comment 51: Some commenters 

contended that NMFS’ assertion that 

only permanent or long-term structures 

should be considered for their potential 

to affect habitat and the passage PCE 

was arbitrary and capricious. They 

asserted that such a notion contradicts 

ESA requirements and marks an 

unreasoned departure from past critical 

habitat designations in marine waters, 

where fishing gear and other ‘‘nonpermanent’’ structures are considered to 

have an effect on foraging or migration. 

They concluded that NMFS would be 

setting a harmful new precedent for 

excluding clear threats to critical habitat 

functions in future critical habitat 

designations. 

Response: As described previously, 

we have removed the migratory 

pathway PCE conditions, and we have 

evaluated each area based on the prey 

PCE. Therefore, we will not further 

evaluate the type of structures that may 

impact passage. Please see our response 

to Comment 12 for additional 

information on this topic. 

Comment 52: A commenter suggested 

that we use adaptive management in the 

final designation to ‘‘deal with 

uncertain environmental variation.’’ 

Response: ‘‘Adaptive management’’, 

or the iterative process of evaluating and 

modifying a management decision over 

time to optimize results and address 

uncertainties, is a useful tool for the 

conservation of endangered and 

threatened species and their habitat; 

however the ESA requires that we 

designate critical habitat through a 

regulatory process that requires us to 

make decisions based upon the best 

available information at the time. When 

or if new information becomes 

available, including the effects of 

environmental variation on current 

designated critical habitats, we will 

evaluate the information and determine 

if a revision to this critical habitat 

designation is necessary. 

Summary of Changes From the 

Proposed Designation 

Based on the comments received and 

our review of the proposed rule, we (1) 

eliminated ‘‘migratory pathways’’ as a 

PCE; (2) refined the description of the 

prey PCE specifically to clarify that 

density is an important element of the 

feature; (3) revised the boundaries of the 

areas in which the PCE may be found; 

and (4) re-evaluated each area for the 

presence of the PCE and determined 

which areas meet the definition of 

critical habitat and are thus eligible for 

designation. The following discussion 

describes in detail the rationale for these 

changes. 

(1) Eliminated as a PCE ‘‘migratory 

pathway conditions to allow for safe 

and timely passage and access to/from/ 

within high use foraging areas.’’ 

Several comments focused on 

migration routes as a PCE and our 

economic and biological analyses 

associated with that PCE. Such 

comments triggered our re-evaluation of 

this PCE. We reviewed available data 

and literature, evaluated public 

comments, and reevaluated the validity 

of the PCE based on applicable statutory 

and regulatory definitions and criteria. 

We explain our analysis in more detail 

below. In our proposed rule, we 

explained that while leatherbacks are 

known to migrate great distances on a 

seasonal basis across the Pacific Ocean 

to arrive at known foraging areas in the 

near-shore marine environment within 

the U.S. EEZ, the actual migratory 

routes to those areas are not wellknown. We reviewed public comments 

to determine whether additional data 

were available to support our approach 

in the proposed rule. Our review of 

public comments and available data on 

leatherback turtle migration confirmed 

our general assumptions in the 

proposed rule regarding the seasonal 

migratory and forage behavior of 

leatherback sea turtles migrating long 

distances from nesting beaches and 

over-wintering areas in the western 

Pacific Ocean to arrive during the 

summer and fall off the U.S. West Coast 

to forage in areas of dense prey 

concentrations associated with the 

California Current Ecosystem. In other 

words, NMFS confirmed the existence 

of valid and useful data on the general 

migration of leatherbacks to and their 

occurrence in the geographic areas 

considered for designation as critical 

habitat. However, our review of public 

comments and the best available 

scientific data did not resolve the 

uncertainty regarding the occurrence 

and presence of any specific biological 

or physical features indicating that a 

given area constitutes a migratory 

pathway or provides defined migratory 

pathway conditions for leatherback sea 

turtles from offshore areas to near-shore 

high-use forage areas, movement within 

those areas, and transit among those 

areas. 

In our proposed rule, we relied 

primarily on data indicating the 

presence of leatherbacks within the 

specified areas as a proxy for 

determining migratory pathway 

conditions (e.g., satellite telemetry, 

aerial surveys, nearshore ship-based 

research). While we recognized the 

importance of leatherback migration, we 

did not identify specific migratory 

pathway conditions, and acknowledged 

uncertainty regarding their occurrence 

and presence. Public comments and 

agency inquiry did not develop 

additional meaningful data to establish 

the occurrence or presence of such 

indicative conditions. Thus, while the 

general proxy approach was useful in 

identifying and framing the importance 

of leatherback seasonal migration to 

geographic areas off the U.S. West Coast, 

without further specific data regarding 

biological or physical features 

influencing migration to, from and 

among forage areas, it did not allow us 

to identify specific migratory conditions 

in any area under consideration. Rather, 

this approach indicated that the entire 

U.S. EEZ could be considered as a 

migratory corridor. 

A PCE is a biological or physical 

feature essential to the conservation of 

the species for which special 

management consideration or protection 

might be required. These features must 

be reasonably specific and identifiable 

in order to be protected. Our analysis of 

migratory pathway conditions did not 

produce a reasonable description of the 

physical and biological feature 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 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. In 

addition, it presents the possibility of 

resulting in an over-designation of 

critical habitat. Accordingly, the 

migratory pathway conditions do not 

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meet the requirements of the ESA, and 

we decided to remove it as a PCE. 

Both NMFS and the USFWS have 

identified passage as a PCE in other 

critical habitat designations; however, 

the species and habitats involved 

differed significantly from leatherback 

sea turtles. In those instances, passage 

was more narrowly defined, and it was 

essential that the species have access to 

passage through a discrete and 

identifiable section of habitat. Please see 

our responses to Comments 12 and 13 

for additional information. 

We considered the impact of 

removing migratory pathway conditions 

as a PCE and the possible effects on 

conservation of leatherbacks. If there 

were threats to leatherback passage 

through the open ocean, and there were 

a federal nexus to those threats, they 

could potentially be mitigated through a 

section 7 consultation on the species. 

For example, some commenters cited 

ship strikes and fishing gear 

entanglement as a threat to passage. 

These threats do not alter habitat 

features as defined in this rule; 

however, because they pose a direct 

threat to the species, these threats can 

be addressed through a jeopardy 

analysis. We also note that in the 

proposed rule we had concluded, after 

conducting a 4(b)(2) analysis for each 

area, that offshore areas containing the 

migratory pathway conditions PCE, but 

low or medium ratings for the prey PCE 

due to low levels of quality prey, should 

be excluded from the designation (i.e., 

Areas 4, 5, 6, and 8). While the 

migratory pathway PCE would have 

been found in Areas 1, 2 and 7, we only 

identified a single activity type, 

construction of long-term or permanent 

structures (e.g., alternative energy 

projects), that might trigger section 7 

consultation and project modifications 

to protect the passage feature. Section 7 

consultation would likely still be 

required for such activities to consider 

effects to the species under the jeopardy 

standard as well as adverse modification 

of the prey PCE. 

At this time, and in light of the data 

and analysis described above, the 

migratory pathway conditions PCE, as 

defined in the proposed rule, lacks the 

required defined physical and biological 

features and specific passage locations, 

and we cannot demonstrate that this 

feature is ‘‘essential to conservation of 

the species.’’ Nor can we determine 

whether and where such pathway 

conditions might reasonably be 

‘‘known’’ to occur within the nine 

specific areas evaluated for designation. 

Based on this re-evaluation, we 

conclude that this feature fails to meet 

the regulatory guidance for determining 

a PCE and cannot serve to qualify 

geographic areas as critical habitat 

under the ESA, section 3(5)(A)(i). 

(2) Refinement of the prey PCE. We 

have added the term density to our 

definition of the prey PCE to reaffirm 

the importance of this quality to the 

feature. In our proposed rule, we 

associated the prey PCE with each area 

given the general co-occurrence of 

leatherbacks with prey species and the 

corresponding likelihood of foraging 

activity. At the same time we recognized 

that certain areas, particularly the nearshore areas, are more heavily used for 

foraging and are of greater conservation 

value to the species. As we discussed in 

the proposed rule, prey is a feature off 

the U.S. West Coast that is essential to 

the conservation of leatherback sea 

turtles. In our proposed rule, we 

recognized that all areas containing the 

prey PCE were not equal in terms of the 

quantity and type of prey available and 

in their value for conservation of the 

species. We also provided data and 

analysis indicating that the areas where 

dense aggregations of prey occurred 

were the most important forage habitats 

for the species. We acknowledged a 

significant distinction between the 

conservation value of nearshore areas 

and offshore areas in relation to this 

feature, noting that some areas were of 

marginal conservation value due to the 

absence of prey in sufficient density to 

make forage energetically efficient for 

migrating turtles (e.g., Areas 4, 5, 6, 8 

and 9). Specific nearshore areas were 

shown to have significant conservation 

value as they displayed a high density 

of prey species and corresponding 

patterns of regular leatherback use for 

sustained forage (e.g., Areas 1, 2 and 7). 

At the same time, we proposed finding 

that the prey PCE was present in all 

eight areas evaluated for designation. 

The proposed rule did so, without 

reflecting sufficiently the importance of 

density of prey species as a 

characteristic of the PCE due to 

differences in dense aggregations of prey 

species and predicted use by 

leatherbacks for sustained foraging. 

During public hearings on the 

proposed critical habitat, we received 

questions about the amount or density 

of prey species necessary for an area to 

be considered critical habitat. We also 

received written public comments 

suggesting that any area in which 

scyphomedusae may be found in the 

U.S. West Coast EEZ should be 

designated as critical habitat. 

In evaluating these comments and 

reviewing data related to the occurrence 

of prey species in specific areas and 

leatherback use of such areas for 

foraging, we have decided in the final 

rule to specifically include ‘‘density’’ in 

the prey PCE, thus reaffirming its 

biological significance as an element of 

the habitat feature considered essential 

to conservation of leatherbacks. This 

refinement is consistent with the 

available literature, including recent 

work by Benson et al. (2011) and 

Benson et al. (2007) that highlights the 

importance of prey aggregations to 

foraging leatherbacks. 

We further revised the eight areas 

evaluated for designation to ensure 

those areas took into account density in 

evaluating the prey PCE. While we 

cannot quantitatively describe the 

density of prey (e.g., number of jellyfish 

per square mile) necessary to support 

the energetic needs of leatherbacks that 

travel across the Pacific Ocean to forage 

off the U.S. West Coast, based on the 

available information, we know that not 

all areas in which jellyfish may be 

found provide sufficient condition, 

distribution, diversity, abundance and 

density to support leatherback 

individual and population growth, 

reproduction, and development. Please 

see (4) below for additional information 

on how the prey PCE was evaluated in 

each area. 

(3) Adjustment to area boundaries and 

the addition of Area 9. 

In our proposed rule, we identified 

the overall area occupied by the species. 

This did not change in the final rule. 

The proposed rule then identified eight 

specific areas within the U.S. West 

Coast EEZ, the limit of our regulatory 

authority for designating critical habitat, 

for evaluation to determine whether 

they qualified as critical habitat. We 

evaluated each of these areas to 

determine whether they contained a 

PCE, in which case the area would 

qualify as critical habitat. In our 

proposed rule, we explained that the 

boundaries for these areas were based 

on a best estimate of where leatherback 

sea turtles transition from migrating to 

foraging, and where there are changes in 

the composition or abundance of prey 

species. The boundaries were intended 

to reflect substantial data demonstrating 

leatherback presence in marine waters 

as well as oceanographic, hydrological 

and physical features that impact the 

location of prey. 

During the public comment period, 

we received comments that questioned 

our rationale for drawing the original 

area boundaries. In response to these 

comments, we reviewed the literature 

and data available on leatherback 

foraging and movements, as well as new 

information on leatherback movements, 

to determine if the boundaries were 

drawn appropriately. After reviewing 

relevant oceanographic processes and 

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physical features, we made three 

changes to the area boundaries to better 

reflect documented breaks in coastal 

ocean biological and physical 

properties. Our approach in drawing 

these boundaries did not depart from 

the stated objective in the proposed 

rule. Rather, it reflected what we believe 

to be a more accurate depiction of the 

oceanographic, hydrological and 

physical features impacting the location 

of prey and likely use by leatherbacks. 

Boundary changes include the 

following: (1) We moved the offshore 

boundary of Area 7 east to the 3,000 

meter isobath to better reflect where 

foraging is known to occur off the coast 

of central and southern California, and 

to better distinguish between nearshore 

and offshore habitat. Additionally, in an 

effort to be consistent with other area 

boundaries marked by geographic 

features, the offshore boundary of Area 

7 has been moved east to the 3,000 m 

isobath. This boundary change resulted 

in a decreased overall size of Area 7 

from 46,100 sq. mi to 13,102 sq. mi. (2) 

We moved the boundary between Areas 

2 and 3 from the Umpqua River south 

to Cape Blanco. Cape Blanco is a welldocumented ‘‘break’’ in coastal ocean 

physical and biological properties due 

to differences in primary bottom types 

and current patterns that influence the 

dispersal and retention of larval fishes 

and invertebrates (Barth et al., 2000; 

McGowan et al., 1999; Peterson and 

Keister, 2002); therefore, it was 

determined to be an appropriate 

oceanographic boundary to distinguish 

between these two areas. This boundary 

change resulted in the increased overall 

size of Area 2 from 24,500 sq. mi. to 

25,004 sq. mi. (3) We created a new 

Area 9 from the southern portion of the 

proposed Areas 7 and 8. Due to 

differences in the geography, 

oceanography, and usage by 

leatherbacks between the northern and 

southern portions of our proposed Areas 

7 and 8, the creation of Area 9 allowed 

us to look at areas with more uniform 

value in terms of leatherback habitat. 

The following paragraphs describe 

each final area (shown in Figure 1) and 

summarize the data used to determine 

each area occupied by leatherbacks: 

Area 1: Neritic waters between Point 

Arena and Point Sur, California 

extending offshore to the 200 meter 

isobath. The specific boundaries are the 

area bounded by Point Sur (36° 18′22′′ 

N./121° 54′9′′ W.), then north along the 

shoreline following the line of mean 

lower low water to Point Arena, 

California (38° 57′14′′ N./123° 44′26′′ 

W.), then west to 38° 57′14′′ N./123° 

56′44′′ W., then south along the 200 

meter isobath to 36° 18′46′′ N./122° 

4′43′′ W., then east to the point of origin 

at Point Sur. As described in our final 

Biological Report, leatherback presence 

is based on aerial surveys, telemetry 

studies, and fishery interactions. This 

area is a principal California foraging 

area (Benson et al. 2007b), characterized 

by high densities of primary prey 

species, brown sea nettle (C. 

fuscescens), particularly within 

upwelling shadows and retention areas 

(Graham 1994). 

Area 2: Nearshore waters between 

Cape Flattery, Washington, and Cape 

Blanco, Oregon extending offshore to 

the 2000 meter isobath. The specific 

boundaries are the area bounded by 

Cape Blanco (42° 50′4′′ N./124° 33′44′′ 

W.) north along the shoreline following 

the line of mean lower low water to 

Cape Flattery, Washington (48° 23′10′′ 

N./124° 43′32′′ W.), then north to the 

U.S./Canada boundary at 48° 29′38′′ N./ 

124° 43′32′′ W., then west and south 

along the line of the U.S. EEZ to 47° 

57′38′′ N./126° 22′54′′ W., then south 

along a line approximating the 2,000 

meter isobath that passes through points 

at 47° 39′55′′ N./126° 13′28′′ W., 45° 

20′16′′ N./125° 21′ W. to 42° 49′59′′ N./ 

125° 8′ 10′′ W., then east to the point of 

origin at Cape Blanco. As described in 

our final Biological Report, leatherback 

presence is based on aerial surveys, 

telemetry studies, and fishery 

interactions. This area is the principal 

Oregon/Washington foraging area and 

includes important habitat associated 

with the Columbia River Plume, and 

Heceta Bank, Oregon. Great densities of 

primary prey species, brown sea nettle 

(C. fuscescens), occur seasonally north 

of Cape Blanco (Suchman and Brodeur 

2005; Reese 2005; Shenker 1984). 

Jellyfish densities south of Cape Blanco 

appear to be dominated by moon jellies 

(Aurelia labiata) and egg yolk jellies 

(Phacellophora camtschatica; Suchman 

and Brodeur 2005; Reese 2005). Cape 

Blanco is a well-documented ‘‘break’’ in 

coastal ocean physical and biological 

properties due to differences in primary 

bottom types and current patterns that 

influence the dispersal and retention of 

larval fishes and invertebrates (Barth et 

al., 2000; McGowan et al., 1999; 

Peterson and Keister, 2002). 

Area 3: Nearshore waters between 

Cape Blanco, Oregon and Point Arena, 

California extending offshore to the 

2000 meter isobath. This line runs from 

42°49′59′′ N./125°8′10′′ W. through 

42°39′3′′ N./125°7′37′′ W., 42°24′49′′ N./ 

125°0′13′′ W., 42°3′17′′ N./125°9′51′′ W., 

40°49′38′′ N./124°49′29′′ W., 40°23′33′′ 

N./124°46′32′′ W., 40°22′37′′ N./ 

154°44′19′′ W., to 38°57′14′′ N./ 

124°11′50′′ W., then east to Point Arena. 

As described in our final Biological 

Report, leatherback presence is based on 

aerial surveys, telemetry studies, and 

fishery interactions. This area includes 

upwelling centers between Cape Blanco, 

Oregon and Point Arena, California and 

is characterized by cold sea surface 

temperatures (<13° C). High densities of 

jellyfish have been documented 

between Cape Blanco and the OregonCalifornia border; however, species 

composition is dominated by moon 

jellies (A. labiata) and egg yolk jellies 

(Phacellophora camtschatica; Suchman 

and Brodeur 2005; Reese 2005). Aerial 

surveys of leatherbacks and jellyfish 

prey indicate that moon jellies are also 

the dominant jelly species north of 

Point Arena, California. 

Area 4: Offshore waters west and 

adjacent to Area 2. Includes waters west 

of the 2000 meter isobath line to the 

U.S. EEZ from 47°57′38′′ N./126°22′54′′ 

W. south to 43°44′59′′ N./125°16′55′′ W. 

As described in our final Biological 

Report, leatherback presence is based on 

aerial surveys, telemetry studies, and 

fishery interactions. This area is used 

primarily as a region of passage to/from 

Area 2 (see above). No information is 

available regarding presence of jellyfish 

in this area; however, due to its distance 

from the coast and lack of persistent 

frontal habitat, prey species are likely 

limited to low densities of moon jellies 

(A. labiata) and salps. 

Area 5: Offshore waters south and 

adjacent to Area 4, and north of a line 

consistent with the California/Oregon 

border. Includes all U.S. EEZ waters 

west of the 2000-meter isobath. As 

described in our final Biological Report, 

leatherback presence is based on aerial 

surveys, telemetry studies, and fishery 

interactions. The eastern edge of this 

polygon is strongly influenced by an 

oceanographic front west of Cape 

Blanco, Oregon. The position and 

intensity of the front is variable, 

dependent on the strength of upwelling 

at Cape Blanco, and can be located 

within the extreme eastern edge of Area 

5 during strong upwelling events. The 

front likely acts as an aggregation 

mechanism for zooplankton; however, 

no information is available about 

jellyfish densities. Given its distance 

offshore, jellyfish densities are likely 

variable and dominated by moon jellies 

that may be advected from nearby 

coastal waters (Suchman and Brodeur 

2005; Reese 2005), therefore, importance 

as a foraging area to leatherbacks is 

secondary. This area is also a region of 

passage to/from Area 2 (see above). 

Area 6: Offshore waters south and 

adjacent to Area 5, west and adjacent to 

the southern portion of Area 3 (see 

above) offshore to a line connecting 

N42.000/W129.000 and N38.95/ 

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W126.382, with the eastern boundary 

beginning at the 2000 meter isobath 

(42°3′6′′ N./125°9′53′′ W.). As described 

in our final Biological Report, 

leatherback presence is based on aerial 

surveys, telemetry studies, and fishery 

interactions. Offshore waters south of 

the Mendocino Escarpment are 

characterized by frontal habitat created 

by the Cape Mendocino upwelling 

center. Similar to Area 5, frontal 

intensity is variable and dependent on 

the strength of upwelling at Cape 

Mendocino (Castelao et al. 2006). No 

information is available about jellyfish 

densities in the Area 6, however, given 

its distance offshore, jellyfish densities 

are likely low, dominated by moon 

jellies, and of secondary importance to 

leatherbacks as a foraging area. 

Area 7: Offshore waters between the 

200–3000 meter isobaths from Point 

Arena to Point Sur, California and 

waters between the coastline and the 

3000 meter isobath from Point Sur to 

Point Arguello, California. This area 

includes waters surrounding the 

northern Santa Barbara Channel Islands 

(San Miguel, Santa Rosa, Santa Cruz, 

and Anacapa Islands). As described in 

our final Biological Report, leatherback 

presence is based on aerial surveys, 

telemetry studies, and fishery 

interactions. Offshore waters beyond the 

200 meter isobath in this area are 

characterized by persistent ocean frontal 

habitat created by mesoscale retentive 

eddies and meanders associated with 

offshore-flowing squirts and jets 

anchored at coastal promontories 

between Point Arena and Point Sur, 

creating linkages between nearshore 

waters of Area 1 and offshore waters of 

the California Current. The recurrent 

oceanographic features at the edge of the 

continental shelf are occupied by 

aggregations of moon jellies (A. labiata) 

and lower densities of brown sea nettles 

(C. fuscescens). Telemetry data indicate 

that these offshore waters are commonly 

utilized by leatherbacks when jellyfish 

availability in Area 1 is poor, and as a 

region of passage to/from Area 1. Neritic 

waters between Point Sur and Point 

Arguello are also strongly influenced by 

coastal upwelling processes. Point 

Arguello is a well-documented ‘‘break’’ 

in coastal ocean physical and biological 

properties along the U.S. West Coast, 

separating newly upwelled waters of the 

central California coast from upwelledmodified and warm, lower salinity 

waters of the southern California Bight. 

The southern portion of the region 

includes Morro and Avila Bays, where 

large densities of brown sea nettles have 

been observed seasonally in fisheries 

monitoring surveys and trawl surveys. 

Area 8: Offshore waters west and 

adjacent to Area 6, and west of the 3000 

meter isobath adjacent to Areas 7, and 

9 between Point Arena, California and 

the U.S. EEZ/Mexico maritime border. 

As described in our final Biological 

Report, leatherback presence is based on 

aerial surveys, telemetry studies, and 

fishery interactions. Although eddies 

and meanders originating from coastal 

capes and headlands may be present in 

this region after particularly strong 

upwelling events, frontal features are 

not persistent or abundant and the 

region is primarily characterized by 

warm, low salinity offshore waters. Due 

to its distance from the coast and lack 

of persistent frontal habitat, prey species 

are likely limited to low densities of 

moon jellies (A. labiata) and salps. Area 

8 is primarily a region of passage for 

leatherbacks to/from Area 7 (see above). 

Area 9: Southern California Bight 

waters extending from the coast to the 

3000 meter isobath between Point 

Arguello and Point Vicente, and from 

Point Vicente to N32.589/W117.463 

extending to the 3000 meter isobath. As 

described in our Final Biological Report, 

leatherback presence is based on aerial 

surveys, telemetry studies, and fishery 

interactions. Upwelling originating from 

Point Conception creates offshore 

frontal near the northern Santa Barbara 

Channel Islands (San Miguel, Santa 

Rosa, Santa Cruz, and Anacapa) 

extending to San Nicolas Island; 

however, most of this region is 

characterized by warm, low salinity 

waters. Little information is available 

about the presence of jellies in the area; 

however, trawl samples performed by 

the California Cooperative Fisheries 

Investigations (CalCOFI) suggest that 

moon jellies are the dominant 

scyphomedusae; therefore, this area is of 

secondary importance to leatherbacks as 

a foraging area. Leatherbacks use this 

area primarily as a region of passage to 

Area 7, particularly during the spring 

and early summer months. This area 

was created in recognition of the 

southern California Bight biogeographic 

region (Parrish et al. 1981) that lies 

south of Point Arguello/Point 

Conception extending to the U.S./ 

Mexico maritime border and west to the 

3000 meter isobath. 

Additionally, as mentioned in our 

response above, the shoreward extent of 

the areas was moved from the mean 

lower low water line to the extreme low 

water line. In our proposed rule, we 

identified the mean lower low water 

line as the shoreward boundary for this 

designation; however, leatherbacks are 

unlikely to pursue prey beyond the 

extent of extreme low water (S. Benson, 

NMFS, September 2000, unpublished 

data). In light of this information, we 

determined that extreme low water is a 

more appropriate boundary for the 

shoreward extent of this critical habitat. 

As depicted in Figure 1, NMFS’s 

adjustment of boundaries in the final 

rule do not either increase or decrease 

the total geographic area evaluated for 

potential designation as critical habitat 

identified in the proposed rule. Areas 1, 

2 and 7 were identified for designation 

in the proposed rule. Areas 1, 2 and 7 

are also included in the final 

designation though the boundaries for 

those areas have been adjusted as 

explained above. While the boundaries 

to Areas 1 and 2 remain largely 

unchanged from the proposed rule, the 

final rule’s adjustment to the boundaries 

of Area 7 results in a substantial 

decrease in the spatial extent of the final 

designation when compared with the 

proposed rule. 

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BILLING CODE 3510–22–C 

(4) Determining which areas meet the 

definition of critical habitat after the 

elimination of our migratory pathway 

PCE and using our refined prey PCE. 

As described above, we eliminated 

our proposed migratory pathway PCE 

and therefore re-examined each of our 

areas to determine if the prey PCE, as 

refined in this final rule to include 

density, could be found within each of 

the nine areas. For each of the nine 

occupied areas, we evaluated the cooccurrence of leatherback turtles and 

their prey species based on the best 

available data. We specifically evaluated 

each area to predict whether and where 

the prey jellyfish could be consistently 

found in sufficient abundance, 

condition, distribution, diversity and 

density to provide for foraging that is 


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essential to the conservation of the 

species. 

Coastal nutrient input, high 

productivity, and shallow waters (less 

than 1000 meters depth) are favorable 

for the life history of many species of 

scyphomedusae. The consistent 

availability of abundant prey in 

relatively small geographic areas 

associated with fixed or recurrent 

physical features influenced by coastal 

geomorphology is likely a key factor 

causing leatherbacks to travel to the U.S. 

West Coast to forage. In contrast to 

coastal areas, prey patches in open 

ocean regions are likely more dynamic, 

ephemeral, and unpredictable and do 

not have consistent conditions that 

produce the abundance and densities 

necessary for providing sufficient 

energy for foraging leatherbacks. 

In addition, a telemetry and 

behavioral study has become available 

since the proposed rule was published 

(Benson et al. 2011). This study 

provides information and locations of 

high occurrences of leatherback foraging 

(described in the paper as area restricted 

search or ARS), and these foraging areas 

closely align with Areas 1, 2, and 7. 

The proposed rule described the 

general co-occurrence of leatherback 

turtles and their prey species in areas 

offshore, including Areas 3, 4, 5, 6 and 

8, as well as the southern and offshore 

portion of Area 7. Based on the available 

data, we could not identify or 

reasonably predict whether or where the 

refined PCE could be consistently found 

in sufficient abundance, condition, 

distribution, diversity and density to 

provide for foraging that is essential to 

the conservation of the species in areas 

3, 4, 5, 6, 8 and 9, in a manner 

consistent with our definition and 

explanation of the prey PCE in this final 

rule. As such these areas do not meet 

the definition of critical habitat and 

therefore are not eligible for further 

consideration in this designation. Please 

see our more specific evaluation of each 

area below. 

Area 1. The preferred prey of 

leatherback sea turtles, brown sea 

nettles (C. fuscescens), are found in 

abundance and high densities in this 

area particularly within upwelling 

shadows and retention areas. This area 

has been identified as the principal 

foraging area off the coast of California 

and contains features that produce 

abundant prey of sufficient condition, 

distribution, diversity and density to 

provide for foraging that is essential to 

the conservation of the species. Thus, 

this area meets the definition of critical 

habitat and is eligible for designation. 

Area 2. The preferred prey of 

leatherback sea turtles, brown sea 

nettles (C. fuscescens), are found in 

abundance and high densities in this 

area. This area is the principal foraging 

area off of Oregon and Washington as 

great densities of brown sea nettles are 

found to seasonally associate with the 

Columbia River Plume and Heceta Bank 

in Oregon, north of Cape Blanco. Based 

upon the best available scientific 

information, these features produce prey 

of sufficient condition, distribution, 

diversity abundance and density to 

provide for foraging that is essential to 

the conservation of the species. Thus 

this area meets the definition of critical 

habitat and is eligible for designation. 

Area 3. This area has features that 

produce an abundance of jellies, 

particularly during seasonal upwelling. 

However, south of Cape Blanco, Oregon 

to the Oregon-California border the area 

is dominated by moon jellies and egg 

yolk jellies. South of the OregonCalifornia border and north of Point 

Arena, moon jellies are the dominant 

species of jellies. These species are not 

the preferred prey for leatherbacks, 

although they may be consumed when 

brown sea nettles are not available. A 

recent publication analyzing movement 

of leatherbacks along the U.S. West 

Coast indicates that foraging behavior 

was not observed in Area 3 (Benson et 

al., 2011). The water in this area (i.e., 

south of Cape Blanco, the boundary 

between Area 2 and Area 3) is colder 

than waters in adjacent Areas 1 and 7 

to the south and Area 2 to the north 

(Huyer, 1983; Brodeur et al., 2004). 

Cape Blanco is a coastal promontory 

that protrudes farther to the west than 

any other feature in the relatively 

straight coastline of the U.S. Northwest. 

The environmental variability 

associated with this feature suggests 

habitat partitioning between prey 

species. For example, Suchman and 

Brodeur (2005) found that brown sea 

nettles were more likely to be caught in 

waters north of Cape Blanco, while 

south of Cape Blanco, moon jellies were 

more prevalent. Thus, Area 3 may not 

be utilized by leatherbacks as a foraging 

region because it is energetically 

inefficient for leatherbacks to consume 

low caloric content prey (i.e., moon 

jellies) while maintaining their core 

body temperatures through swimming. 

Densities of brown sea nettles are likely 

insufficient to support regular foraging 

in the cold waters of Area 3. Based upon 

the best available scientific information, 

the oceanographic features of this area 

do not produce prey of sufficient 

condition, distribution, diversity, 

abundance and density to provide for 

foraging that is essential to the 

conservation of the species. Thus this 

area does not meet the definition of 

critical habitat. 

Area 4. This area has been 

characterized as primarily a region of 

passage to/from Area 2; therefore, we 

evaluated it in terms of the prey PCE. 

Although there is limited information 

available regarding the presence of 

jellyfish in this area, the recent study by 

Benson et al. (2011) indicates that 

jellyfish feeding occurs in the area. Due 

to distance from the coast and lack of 

persistent frontal habitat, prey species 

are likely limited to low densities of 

moon jellies (A. labiata) and salps. 

Small densities of low caloric prey 

resources in Area 4 may be sufficient for 

counteracting calorie loss but are likely 

not necessary for leatherbacks to reach 

Area 2. Further, it is unlikely that the 

densities of brown sea nettles within 

Area 4 are sufficient to provide adequate 

energy for leatherback growth or 

reproduction. Based upon the best 

available scientific information, the 

oceanographic features of this area do 

not produce prey of sufficient condition, 

distribution, diversity, abundance and 

density to provide for foraging that is 

essential to the conservation of the 

species. Thus, this area does not meet 

the definition of critical habitat. 

Area 5. This area was defined based 

on its use as passage for leatherbacks 

from far offshore waters to foraging sites 

in Area 2 and between Areas 1 and 2. 

The eastern edge of the area is 

influenced by an oceanographic front 

west of Cape Blanco, Oregon that is 

variable and dependent on the strength 

of upwelling at Cape Blanco. Although 

the front may act as an aggregation 

mechanism for zooplankton, no 

information is available on its impact on 

jellyfish densities or if it acts as a 

transport mechanism for jellyfish. 

Similar to other distant offshore areas, 

jelly densities are likely variable and 

dominated by moon jellies. Recent work 

by Benson et al. (2011) indicates that no 

foraging behavior was observed in Area 

5 during their study period, 2000 

through 2008. While prey may be 

present in Area 5, based upon the best 

available scientific information, we 

could not find areas that had prey of 

sufficient condition, distribution, 

diversity, abundance and density to 

provide for foraging that is essential to 

the conservation of the species. Thus, 

this area does not meet the definition of 

critical habitat. 

Area 6. Similar to Area 5, frontal 

intensity is variable and dependent on 

the strength of upwelling at Cape 

Mendocino (Castelao et al. 2006). No 

information is available about jelly 

densities in the Area 6; however, given 

its distance offshore, jelly densities are 

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likely low, dominated by moon jellies. 

Recent work by Benson et al. (2011) 

showed that no leatherbacks foraged in 

Area 6 during their study period 2000 

through 2008. While prey may be 

present in Area 6, based upon the best 

available scientific information, we 

could not find areas that have prey of 

sufficient condition, distribution, 

diversity, abundance and density to 

provide for foraging that is essential to 

the conservation of the species. Thus, 

this area does not meet the definition of 

critical habitat. 

Area 7. A quasi-stationary front 

occurs in this area near the 2000 m to 

3000 m isobaths as warm offshore 

waters meet cooler coastal upwelled 

water. As upwelling winds relax, this 

front moves closer to the coast and 

likely aggregates sea nettles that have 

been advected from nearby coastal 

waters (Area 1). The neritic waters 

between Point Sur and Point Arguello 

are also strongly influenced by coastal 

upwelling processes that produce 

abundant and dense aggregations of 

leatherback prey. Telemetry data 

indicate that these offshore waters are 

utilized for foraging by leatherbacks 

(Benson et al. 2011), particularly if 

foraging opportunities in Area 1 are 

poor, as evidenced by leatherbacks 

spending more time engaged in ARS 

behavior in this area than in Areas 3, 4, 

5,6, 8 or 9. Based upon the best 

available scientific information, the 

oceanographic features of this area 

produce prey of sufficient condition, 

distribution, diversity, abundance and 

density to provide for foraging that is 

essential to the conservation of the 

species. Thus, this area meets the 

definition of critical habitat. 

Area 8. This area has been identified 

primarily as an area of passage for 

leatherbacks moving from distant 

offshore waters to nearshore foraging 

Areas 1 and 7. Unlike Area 7, frontal 

features are less abundant and more 

ephemeral in Area 8. The region is 

primarily characterized by warm, low 

salinity offshore waters. Due to the great 

distance from the coast, prey species are 

likely limited to low densities of moon 

jellies (A. labiata) and salps. Recent 

work by Benson et al. (2011) indicates 

that foraging behavior is rare and 

inconsistent in this area. Additional 

information from Benson (unpublished 

data, 2008) indicated that during a shipbased survey within these waters, an 

offshore front was observed over 100 

miles from shore. Brown nettles were 

found in poor condition (small and 

dying) that were likely advected from 

coastal waters to the offshore front. 

Although leatherbacks could potentially 

attempt to feed in this area, the 

relatively low densities and poor 

condition of brown sea nettles in this 

area would likely not provide adequate 

energy for leatherback growth and 

reproduction. Based upon the best 

available scientific information, the 

oceanographic features of this area do 

not produce prey of sufficient condition, 

distribution, diversity, abundance and 

density to provide for foraging that is 

essential to the conservation of the 

species. Thus, this area does not meet 

the definition of critical habitat. 

Area 9. This area was identified as 

primarily an area of passage in our 

proposed rule. Therefore, we reevaluated it in terms of the prey PCE. 

Most of this area is characterized by 

warm, low salinity waters, although 

upwelling originating from Point 

Conception creates offshore fronts near 

the northern Santa Barbara Channel 

Islands and extending south to San 

Nicolas Island. Little information is 

available regarding the presence of 

jellyfish in the area; however, trawl 

samples suggest that moon jellies are the 

dominant scyphomedusae. A recent 

report on telemetry work on 

leatherbacks indicates some limited 

foraging behavior around the Channel 

Islands, and within the southern 

California Bight by a single individual 

during spring while moving toward 

Areas 1 and 7 (Benson et al. 2011). Area 

9 was primarily used for passage to 

Areas 1 and 7 by turtles that entered the 

California Current during the spring. We 

have no information to indicate whether 

brown sea nettles are found in sufficient 

abundance or density to allow for 

efficient foraging by leatherbacks. Based 

upon the best available scientific 

information we could not conclude that 

this area contained the prey PCE. Thus, 

this area does not meet the definition of 

critical habitat. 

Critical Habitat Identification and 

Designation 

The ESA defines critical habitat under 

section 3(5)(A) as: ‘‘(i) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed 

* * *, on which are found those 

physical or biological features (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by the species at the time it is listed 

* * * upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species.’’ 

If critical habitat is designated, 

section 7 of the ESA requires Federal 

agencies to insure they do not fund, 

authorize, or carry out any actions that 

will result in the adverse modification 

or destruction of that habitat. This 

requirement is in addition to the section 

7 requirement that Federal agencies 

insure their actions do not jeopardize 

the continued existence of listed 

species. 

In the following sections, we describe 

our methods for evaluating the areas 

considered for designation as critical 

habitat, our final determinations, and 

the final critical habitat designation. 

This description incorporates the 

changes described above in response to 

public comments and peer reviewer 

comments. 

Methods and Criteria Used To Identify 

Critical Habitat 

In accordance with section 4(b)(2) of 

the ESA and our implementing 

regulations (50 CFR 424.12(a)), this final 

rule is based on the best scientific 

information available regarding 

leatherback sea turtles’ present and 

historical range, habitat and biology, as 

well as threats to its habitat. 

To assist with the consideration of 

revising leatherback critical habitat, we 

convened a CHRT consisting of 

biologists and managers from NMFS 

Headquarters, the Southwest and 

Northwest Regional Offices, and the 

Southwest Fisheries Science Center. 

The CHRT members had experience and 

expertise on leatherback biology, 

distribution and abundance of the 

species along the U.S. West Coast as it 

relates to oceanography, ESA section 7 

consultations and management, and/or 

the critical habitat designation process. 

The CHRT used the best available 

scientific data and their best 

professional judgment to: (1) Verify the 

geographical area occupied by the 

leatherbacks at the time of listing; (2) 

identify the physical and biological 

features essential to the conservation of 

the species that may require special 

management considerations or 

protection; (3) identify specific areas 

within the occupied area containing 

those essential physical and biological 

features; (4) evaluate the conservation 

value of each specific area; and (5) 

identify activities that may affect any 

designated critical habitat. The CHRT 

evaluation and conclusions are 

described in detail in the following 

sections. 

Physical or Biological Features Essential 

for Conservation 

Joint NMFS and USFWS regulations 

(50 CFR 424.12(b)) state that in 

determining what areas are critical 

habitat, the agencies ‘‘shall consider 

those physical and biological features 

that are essential to the conservation of 

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a given species and that may require 

special management considerations or 

protection.’’ Features to consider may 

include, but are not limited to: ‘‘(1) 

Space for individual and population 

growth, and for normal behavior; (2) 

Food, water, air, light, minerals, or other 

nutritional or physiological 

requirements; (3) Cover or shelter; (4) 

Sites for breeding, reproduction, rearing 

of offspring, germination, or seed 

dispersal; and generally; (5) Habitats 

that are protected from disturbance or 

are representative of the historic 

geographical and ecological 

distributions of a species.’’ Id. The 

regulations also require agencies to 

‘‘focus on the principal biological or 

physical constituent elements’’ (i.e., 

PCEs) within the specific areas 

considered for designation that are 

essential to conservation of the species. 

PCEs may include, but are not limited 

to, the following: spawning sites, 

feeding sites, water quality or quantity, 

geological formation, and tide. 

Primary Constituent Elements 

We have identified one PCE essential 

for the conservation of leatherbacks in 

marine waters off the U.S. West Coast: 

The occurrence of prey species, 

primarily scyphomedusae of the order 

Semaeostomeae (e.g., Chrysaora, 

Aurelia, Phacellophora, and Cyanea), of 

sufficient condition, distribution, 

diversity, abundance and density 

necessary to support individual as well 

as population growth, reproduction, and 

development of leatherbacks. 

As described above in the section 

‘‘Summary of changes from the 

proposed designation,’’ public 

comments led us to take a closer look 

at the prey PCE to better describe the 

characteristics that make the PCE 

essential to the conservation of 

leatherbacks. Leatherbacks have high 

caloric needs, and their preferred 

gelatinous prey have low nutritional 

value individually, but consumed in 

large amounts can satisfy the energetic 

needs of subadult and adult leatherback 

sea turtles. As noted in our proposed 

rule, leatherbacks must consume 20 to 

30 percent of their body weight each 

day, or roughly 50 large jellyfish. Adult 

leatherbacks (250–450 kg) may consume 

70–90 kg of jellyfish per day to meet 

their energetic needs (Wallace et al. 

2006). Leatherback sea turtles may 

opportunistically feed in areas with low 

densities of jellyfish, but these patches 

of prey are not sufficient to support the 

energetic needs to promote individual 

and population growth, reproduction 

and development. Telemetry studies 

and aerial surveys by Benson et al. 

(2011 and 2007) confirm that 

leatherbacks are most often found 

foraging in retention areas that are 

created by points and headlands, and at 

dynamic mesoscale features including 

fronts, eddies, and regions of low eddy 

kinetic energy. 

Therefore, we have refined our 

description of the leatherback prey PCE 

to specifically include density, along 

with sufficient condition, distribution, 

diversity, and abundance described in 

our proposed rule. Our approach is 

similar to the agency’s designation of 

critical habitat for North Pacific right 

whales. Baleen whales and leatherback 

turtles both forage on relatively small 

prey. Baleen whales rely on dense 

aggregations of small fish and krill to 

satisfy their caloric needs, in the same 

way as leatherbacks rely on dense 

aggregations of jellyfish. For the North 

Pacific right whale critical habitat 

designation, we identified prey as the 

sole PCE. Although North Pacific right 

whales’ preferred prey, copepods, are 

ubiquitous in the North Pacific, we 

identified the need for a certain density 

of prey, and located an area in the ocean 

where physical forcing mechanisms 

concentrate copepods in sufficient 

densities to allow for efficient feeding 

by whales (79 FR 19000, April 8, 2008). 

Geographical Area Occupied and 

Specific Areas 

One of the first steps in this critical 

habitat review process was to define the 

geographical area occupied by the 

species at the time of listing. As 

described above, leatherbacks are 

distributed throughout the oceans of the 

world including along the U.S. West 

Coast within the U.S. EEZ. The CHRT 

reviewed available data sources to 

identify locations within and adjacent to 

the petitioned area that contain the prey 

PCE. Information reviewed included: 

Turtle distribution data from nearshore 

aerial surveys (Peterson et al., 2006; 

Benson et al., 2006; 2007b; 2008; NMFS 

unpublished data); offshore ship 

sightings and fishery bycatch records 

(Bowlby, 1994; Starbird et al., 1993; 

Bonnell and Ford, 2001; NMFS SWR 

Observer Program, unpublished data); 

satellite telemetry data (Benson et al., 

2007a; 2007c; 2008; 2009; NMFS 

unpublished data); distribution and 

abundance information on the preferred 

prey of leatherbacks (Peterson et al., 

2006; Harvey et al., 2006; Benson et al., 

2006; 2008); bathymetry (Benson et al., 

2006; 2008); and regional oceanographic 

patterns along the U.S. West Coast 

(Parrish et al., 1983; Shenker, 1984; 

Graham, 1994; Suchman and Brodeur, 

2005; Benson et al., 2007b). 

Joint NMFS and FWS regulations 

provide that areas outside of U.S. 

jurisdiction not be designated as critical 

habitat (50 CR 424.12(h)), so any areas 

outside of the U.S. EEZ were excluded 

from our analysis. Thus, the occupied 

geographic area under consideration for 

this designation was limited to areas 

along the U.S. West Coast within the 

U.S. EEZ from the Washington/Canada 

border to the California/Mexico border. 

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.’’ In our proposed rule we stated 

that we did not identify any specific 

areas outside the geographic area 

occupied by leatherbacks that may be 

essential for the conservation of the 

species. We did not receive any public 

or peer review comments on this topic, 

therefore, no unoccupied areas will be 

included in this analysis. 

Special Management Considerations or 

Protections 

An occupied area may be designated 

as critical habitat only if it contains 

physical or biological features essential 

to the conservation of the species that 

‘‘may require special management 

considerations or protection.’’ Joint 

NMFS and USFWS regulations (50 CFR 

424.02(j)) define ‘‘special management 

considerations or protection’’ to mean 

‘‘any methods or procedures useful in 

protecting physical and biological 

features of the environment for the 

conservation of listed species.’’ We have 

identified a number of activities that 

may threaten or adversely impact our 

identified PCE. In our proposed rule, we 

grouped these activities into eight 

activity types: Aquaculture, pollution 

from point sources (e.g., National 

Pollution Discharge Elimination System 

(NPDES)); runoff from agricultural 

pesticide use; oil spill response; power 

plants; desalination plants; tidal, wave, 

and wind energy projects; and liquefied 

natural gas (LNG) projects. 

In our proposed rule, aquaculture was 

described as an activity that may 

adversely impact our migratory pathway 

PCE. With the removal of that PCE, 

aquaculture is no longer considered an 

activity that may impact this critical 

habitat designation. As such, the 

remaining seven activity types have 

been evaluated for their potential to 

impact the prey PCE by altering prey 

abundance or prey contamination levels 

with Areas 1, 2, and 7. Based on the 

present and potential impacts from 

these activities, we have determined 

that the prey feature may require special 

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management consideration or 

protection. 

TABLE 1—SUMMARY OF OCCUPIED SPECIFIC AREAS, SURFACE AREA COVERED AND ACTIVITIES THAT MAY AFFECT THE

PREY PCE IN EACH AREA SUCH THAT SPECIAL MANAGEMENT CONSIDERATIONS OR PROTECTION MAY BE REQUIRED

[Please see the economic report for additional details] 

Specific area Est. area (sq. mi) Activities that may impact the PCE Prey 

Area 1 .............................................. 3,807 (9,862 sq. km) ..................... Point pollution (NPDES permitting), pesticide application, oil spill response, power plants, desalination plants, tidal and wave energy 

projects. 

Area 2 .............................................. 25,004 (64,760 sq. km) ................. Point pollution (NPDES permitting), pesticide application, oil spill response, tidal, wave and wind energy projects, LNG. 

Area 7 .............................................. 13,102 (33,936 sq. km) ................. Point pollution (NPDES permitting), pesticide application, oil spill response, power plants, desalination plants. 

ESA Section 4(b)(2) Analysis 

Section 4(b)(2) of the ESA requires the 

Secretary of Commerce (Secretary) to 

designate critical habitat based on the 

best scientific data available, after taking 

into consideration the economic impact, 

impacts on national security and any 

other relevant impact, of specifying any 

particular area as critical habitat. 

Section 4(b)(2) further states that the 

Secretary may exclude any area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of designation, unless he 

determines that failure to designate will 

result in the extinction of the species. 

The ESA does not define what 

‘‘particular area’’ means in the context 

of section 4(b)(2), or the relationship of 

particular areas to ‘‘specific areas’’ that 

meet the statute’s definition of critical 

habitat. 

In previous sections of this final rule, 

we detailed the 9 occupied areas, within 

the geographic range of the species, that 

were initially evaluated for eligibility as 

critical habitat. Through that process, 

we determined that Areas 1, 2 and 7 are 

eligible for designation as critical 

habitat. As there was no biological basis 

to further subdivide these three 

‘‘specific areas’’ into smaller units, we 

treated these areas as the ‘‘particular 

areas’’ for our initial consideration of 

the impacts of designation. The 

following sections detail the analysis 

that was done to consider economic and 

other impacts from this designation to 

determine if any particular areas should 

be excluded. 

Benefits of Designation 

As described above, section 4(b)(2) of 

the ESA requires that we balance the 

benefit of designation against the benefit 

of exclusion for each particular area. 

The primary benefit of a critical habitat 

designation is the protection afforded 

under section 7 of the ESA, which 

requires that all Federal agencies insure 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

designated critical habitat. This is in 

addition to the requirement that all 

Federal agencies ensure that their 

actions are not likely to jeopardize the 

continued existence of any listed 

threatened or endangered species. The 

designation of critical habitat also 

provides other benefits, such as 

improving education and outreach by 

informing the public about areas and 

features important to species 

conservation. At this time, we lack 

information that would allow us to 

quantify or monetize the benefits of 

designating critical habitat for 

leatherback sea turtles and have instead 

relied on a qualitative review of the 

potential benefits. 

In our proposed rule, we used the 

overall conservation value ratings that 

were developed for each area to 

represent the qualitative benefit of 

designation, and we requested public 

comments on methods for pursuing a 

quantitative analysis of the benefits of 

designation. Public comments suggested 

that there are examples of true cost and 

benefit analyses for other species, 

although the intrinsic value of a 

leatherback sea turtle and its habitat 

have not been quantified or given a 

specific monetary value. These 

comments prompted a review of the 

analysis done in the proposed rule to 

determine the overall benefit of 

designation. 

The benefit of designation depends on 

several factors, including the 

conservation value of the area to the 

species, the seriousness of the threats to 

that conservation value, and the extent 

to which an ESA section 7 consultation 

or the educational aspects of 

designation will address those threats. 

We began this process by re-examining 

the conservation value of each specific 

area based upon the new area 

boundaries for Areas 2 and 7, as well as 

the elimination of the migratory 

pathway PCE. We reviewed the best 

available information to specifically 

evaluate each particular area in terms of 

density of prey, prey species 

composition, prey aggregating 

mechanisms within the area, and interannual variability (e.g., El Nin ̃ o (Barber 

and Chavez, 1983), or Pacific Decadal 

Oscillation cycles (McGowan et al., 

1998; 2003)) to determine the 

conservation value of each area. 

Through this evaluation (see Table 2), 

we determined that all three areas have 

a high conservation value for 

leatherback turtles. We then evaluated 

the extent to which an ESA section 7 

consultation and the educational 

aspects of designation will address 

threats to the PCE from the activity 

types identified as having the potential 

to impact critical habitat. Lastly, we 

incorporated available information on 

leatherback foraging use of each area to 

determine our final conservation benefit 

of designation score for each area. The 

following sections further detail this 

process. 

Conservation Value 

As mentioned above, to determine the 

conservation value of each area based 

on the prey PCE, we scored each area for 

its importance in four main prey 

categories: Density of prey; composition 

of prey species; aggregation mechanism 

present; and inter-annual variation. We 

also acknowledge that these categories 

should be weighted for their relative 

importance in creating optimal foraging 

habitat. Therefore, density of prey was 

weighted at 40 percent of the total area 

conservation score, while prey species 

composition, aggregation mechanism, 

and inter-annual variability were 

weighted at 25 percent, 25 percent, and 

10 percent, respectively. 

We first scored each area from 1 to 5 

for each prey category, with 5 

representing a very high conservation 

value. Then each score was weighted 

based on its particular category. For 

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example, in Area 1, prey concentration 

was given a score of 5, meaning that it 

has a very high concentration of prey. 

The prey concentration category is 

weighted at 40 percent importance 

overall, so the weighted score for prey 

concentration in Area 1 is 2. All 

weighted scores across categories were 

added to calculate a total weighted score 

for each area, as shown in Table 2. 

Finally, the conservation value was 

assigned to each area based on the total 

weighted score. Scores from 4.0 to 5.0 

were given a high conservation value, 

scores from 3.0 to 3.9 were given a 

medium conservation value, and all 

scores of 2.9 or lower were given a low 

conservation value. All three of our 

particular areas scored a high 

conservation value, which is consistent 

with scientific literature and 

observations of a high level of 

leatherback foraging in these areas. 

TABLE 2—THE SCORES FOR EACH AREA BASED ON THE FOUR PREY CATEGORIES, THE WEIGHTED ADJUSTMENT TO

SCORES BASED ON THE OVERALL IMPORTANCE OF EACH PREY CATEGORY, AND THE CONSERVATION RATING

Area 

Density of 

prey 

(0.4) 

Prey species 

composition 

(0.25) 

Aggregating 

mechanism 

(0.25) 

Inter-annual 

variability 

(0.1) 

Total weighted 

score 

Conservation 

value 

1 ................................................................ 5 (2.0) 5 (1.25) 5 (1.25) 4 (0.4) 4 .9 High. 

2 ................................................................ 4 (1.6) 5 (1.25) 4 (1) 4 (0.4) 4 .25 High. 

7 ................................................................ 4 (1.6) 4 (1) 4 (1) 4 (0.4) 4 High. 

ESA Section 7 Benefits 

When considering the extent to which 

an ESA section 7 consultation will 

benefit the species in an area designated 

as critical habitat, we considered the 

importance of the area and the types of 

threats to the PCE that may be addressed 

through such consultation. Under ESA 

section 7, Federal agencies must insure 

that their actions will not result in 

destruction or adverse modification of 

critical habitat. 

Educational Benefits 

Educational benefits are included in 

this analysis to recognize that a critical 

habitat designation may provide 

educational benefits to leatherbacks, 

especially if it raises the awareness of 

Federal, state and local agencies that 

engage in or authorize activities that 

may affect the species or its habitat. 

Such awareness may lead to protective 

regulations or policies at the state or 

local levels that in turn help to educate 

the general public. After considering the 

types of activities that may affect 

leatherback habitat we believe that it is 

more likely that nearshore coastal areas 

would yield greater educational benefits 

than offshore areas simply due to their 

proximity and accessibility to the 

public. 

U.S. West Coast states maintain 

jurisdiction offshore to 3 nm wherein 

occurs the vast majority of human 

activities in the marine environment 

(e.g., fishing, swimming, boating). All 

three states have agencies and entities 

that provide education and encourage 

public conservation of coastal resources, 

including marine species habitats. For 

example, the California Coastal 

Commission has active public education 

and outreach efforts focused on coastal 

beaches and waters, including an 

‘‘Adopt-a-Beach’’ program and 

‘‘California Coastal Cleanup Day’’ that 

annually draws tens of thousands of 

participants. The California Department 

of Fish and Game is actively involved in 

implementing the state’s Marine Life 

Protection Act and the identification of 

Marine Protected Areas. Similar 

agencies, programs, and strategies exist 

in Washington and Oregon, including: 

the Washington Department of Ecology 

Coastal Zone Management Program; 

Oregon Division of State Lands Coastal 

Management Program; Oregon Coastal 

Zone Management Association; and the 

Oregon Nearshore Marine Resources 

Management Strategy (Oregon 

Department of Fish and Wildlife, 2006), 

which defines the ‘‘nearshore ocean’’ as 

the area from the coastal high tide line 

offshore to the 30-fathom (180 feet or 55 

meter) depth contour (i.e., well within 

the Area 2 boundary). All of these 

agencies and entities produce and 

distribute numerous brochures, maps, 

and educational resources that 

emphasize actions to protect habitats in 

the nearshore coastal zone used by 

leatherbacks. 

Leatherback Foraging Use 

Leatherbacks in the Pacific expend 

tremendous time and energy migrating 

to and along the U.S. West Coast to 

forage on jellyfish. To gain insights into 

potential preferences, we reviewed the 

available data and literature to help 

quantify the use of each specific area for 

foraging. NOAA’s Southwest Fisheries 

Science Center, (Benson et al. 2011), has 

been investigating leatherback use of the 

coastal waters of California, Oregon, and 

Washington. Satellite transmitters have 

been applied to leatherback sea turtles 

at western Pacific nesting beaches and 

at California foraging grounds. Benson 

et al. (2011), modeled the daily position 

estimates for tagged animals and then 

used movement data from each 

independent transmitter to infer if the 

turtle was engaged in ‘‘Area Restricted 

Search’’ (foraging) or ‘‘Transit’’ (directed 

travel between areas). This new 

research, in coordination with other 

data on foraging behavior, has provided 

additional information regarding the 

usage of each specific area and is 

summarized below. 

Area 1: Satellite data indicate foraging 

behavior between Bodega Bay and 

northern Monterey Bay, and between 

Bodega Bay and Point Arena when 

warmer water extends northward from 

Point Reyes (usually during September). 

Data were used from individuals that 

were captured off the central California 

coast, and that returned the following 

year. 

Area 2: Satellite data indicate foraging 

in shelf waters between the 200 m and 

2000 m isobaths. These data come from 

four individuals that moved into this 

area one year after the transmitters were 

deployed at Jamursba-Medi (Papua 

Barat, Indonesia). While this is a small 

sample size, it reflects the best available 

data at this time. 

Area 7: Satellite data indicate that 

foraging behavior occurred near the 

2000 meter isobath, west of Monterey 

Bay and Big Sur, and west of Morro and 

Avila Bays. Foraging typically occurs in 

Area 7 during the spring and early 

summer, when neritic waters are cool. 

Turtles that foraged in this area 

eventually moved further east or north, 

into Area 1 during the late summer. 

Benefit of Designation Summary 

When evaluating the overall Benefit of 

Designation, we considered the three 

factors outlined above: Conservation 

Value, Foraging Behavior, and Section 7 

and Educational Benefits. Each factor 

was scored as high, medium or low for 

each particular area. We than assigned 

a number to each score, with high = 3, 

medium = 2 and low = 1. Therefore each 

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area had a potential total Benefit of 

Designation between 3 and 9. A total 

score of 3 and 4 indicates a low Benefit 

of Designation, scores from 5 to 7 

indicate a medium Benefit of 

Designation, and scores 8 and 9 indicate 

a high Benefit of Designation. 

Areas 1, 2 and 7 all scored high (3) for 

each factor. These areas have a high 

conservation value, as determined in 

Table 2, they also have a high value for 

foraging, as documented in the 

literature, and due to their proximity to 

the coastline and the number of activity 

types that may impact the habitat, and 

they also have a high section 7 and 

educational benefit. 

TABLE 3—BENEFIT OF DESIGNATION WAS DETERMINED BASED ON THE CONSERVATION VALUE OF EACH AREA, 

LEATHERBACK FORAGING BEHAVIOR, AND THE EXPECTED BENEFITS AFFORDED THROUGH THE DESIGNATION OF CRITICAL HABITAT FROM ESA SECTION 7 AND EDUCATIONAL PROGRAMS

Area Conservation value Foraging behavior Section 7 and educational 

benefit Benefit of designation 

1 ......................................... High (3) ............................. High (3) ............................. High (3) ............................. 9—High. 

2 ......................................... High (3) ............................. High (3) ............................. High (3) ............................. 9—High. 

7 ......................................... High (3) ............................. High (3) ............................. High (3) ............................. 9—High. 

Economic Benefits of Excluding 

Particular Areas (Economic Impacts of 

Designation) 

The economic report, supplemental to 

this final rule, details the specific costs 

and calculations used to determine the 

anticipated economic impacts or costs 

of the critical habitat designation, and 

therefore the economic benefit of 

excluding particular areas from 

designation. To determine the economic 

costs associated with the designation of 

each particular area, we first accounted 

for the baseline level of protection 

afforded to leatherbacks and their 

habitat. To determine the baseline we 

considered three major factors, (1) the 

overlap of previously designated critical 

habitat for other species within 

leatherback critical habitat, (2) the 

presence of other listed species and 

protected marine mammals within 

leatherback critical habitat, and (3) the 

Federal, State and local protections 

already in place to conserve and protect 

marine resources. Using these factors we 

assigned a qualitative rating of ‘‘high’’, 

‘‘medium’’ or ‘‘low’’ to each activity 

type in each area. The activities in each 

of the three specific areas received 

either a ‘‘high’’ or ‘‘medium’’ rating. 

Further discussion of how these ratings 

were assigned is presented in section 

1.4.3 of our economic report. 

Once we determined the baseline 

protections for each activity in each 

specific area, we assigned incremental 

scores to each activity in each area to 

estimate the portion of costs expected to 

be attributed to this critical habitat 

designation. The incremental scores 

were assigned based on the qualitative 

estimates of the baseline protections 

rating of high, medium or low. In areas 

where baseline protections were 

considered to be high, the portion of any 

project modification costs attributable to 

leatherback critical habitat designation 

would be low and thus the assigned 

incremental score was low. In areas 

where lower baseline protections exist, 

it is expected that the majority of any 

project modification costs would be 

associated with the leatherback critical 

habitat designation; thus the assigned 

incremental score should be high. Given 

the uncertainty of project modifications 

and associated costs, we used a 

conservative approach that would 

potentially over rather than underestimate costs associated with 

leatherback critical habitat. For 

activities and areas with more existing 

protections (e.g., areas with marine 

sanctuaries or designated critical habitat 

for other listed species) and thus a 

‘‘high’’ level of baseline protection, we 

estimated that 30 percent of any project 

modification costs would be attributable 

to leatherback critical habitat. Thus an 

incremental score of 0.3 was applied to 

these activities. For activities that occur 

in areas with fewer existing protections 

(e.g., areas overlapping the range of 

other listed species but not their critical 

habitat), and rated as having a 

‘‘medium’’ level of baseline protections, 

we assumed that 50 percent of costs 

would be attributable to designation of 

leatherback critical habitat, and 

assigned an incremental score of 0.5. 

Sections 1.4.3 and 1.4.4 of our economic 

report provide more detail on 

incremental scoring. 

For each potentially affected 

economic activity, we estimated the 

number of potentially affected projects 

and identified project modifications that 

may be necessary to avoid destruction 

or adverse modification of specific areas 

considered for designation as 

leatherback critical habitat. Where 

possible we also estimated the costs of 

potential project modifications. The 

majority of activity costs were projected 

20 years into the future and, where 

applicable, costs were adjusted for 

inflation to reflect $2009 values (with a 

3 and 7 percent discount rates applied 

to future costs). We then calculated low 

and high cost scenarios based on spatial 

considerations for activities that occur 

on land (e.g., agriculture pesticide 

application). Where applicable, the high 

cost scenario estimated costs for 

activities within 5 miles of the coastline; 

the low cost scenario estimated costs for 

activities within 1 mile of the coastline 

(i.e., a smaller subset of potential 

activities). Projections of future 

activities were developed using 

geographic information systems and 

other published data on existing, 

pending, or future actions (e.g., FERC 

permit license data for LNG projects). 

Estimated costs were calculated for all 

activities except power plants, wind 

energy projects, and LNG facilities and 

oil spill response; for these we relied on 

a qualitative assessment. The mid-point 

value between the high and low cost 

scenarios was used as the estimated 

incremental cost for the designation of 

each area. 

Exclusion of Particular Areas Based on 

Economic Impacts 

The benefit of designation is not 

directly comparable to the economic 

benefit of excluding a particular area 

(i.e., avoiding economic costs). We had 

sufficient information to monetize the 

estimated economic benefits of 

exclusion, but were not able to monetize 

the conservation benefit of designation. 

To qualitatively scale the economic cost 

estimates in the same manner as the 

conservation benefit of designation, we 

created economic thresholds (see Table 

4) and assigned each area an economic 

rating based on the mid-point of the 

estimated annualized costs. 

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TABLE 4—ECONOMIC THRESHOLDS

AND CORRESPONDING ECONOMIC

BENEFIT OF EXCLUSION

Threshold Economic 

rating 

$20,000,000 or more .................. High. 

$700,000–$19,999,999 ............... Medium. 

$25,000–$699,999 ...................... Low. 

$0–$24,999 ................................. Very Low. 

As shown in Table 4 above, we did 

not change our economic thresholds 

from the analysis done in our proposed 

rule; however, the calculations behind 

these thresholds were re-evaluated to 

make sure they remained appropriate. 

The high economic threshold was set 

at $20 million or more, based on an 

estimate of 3 percent of total revenue for 

activities associated with Area 2, the 

area with the highest estimated 

revenues and costs in this final 

designation. The economic threshold 

between medium and low economic 

costs was set at $700,000 based on the 

mid-point cost per area. A very low cost 

threshold was set at less than $25,000. 

Each of the three areas evaluated were 

rated as having a medium economic 

impact (see Table 5). The dollar 

thresholds do not represent a judgment 

that areas with medium conservation 

value are worth no more than 

$19,999,999, or that areas with very low 

conservation value ratings are worth no 

more than $24,999. These thresholds 

represent the levels at which we believe 

the economic impact associated with a 

particular area would outweigh the 

conservation benefits of designating that 

area. 

Our selection of dollar thresholds was 

intended to create an efficient process 

and not because of a judgment about 

absolute equivalence between a certain 

dollar amount and the benefit of 

designation. The statute directs us to 

balance dissimilar interests, and it 

emphasizes the discretionary nature of 

the weight to give any impact and the 

decision to exclude. 

To weigh the benefits of designation 

against the benefits of exclusion, we 

compared the conservation benefit of 

designation against the economic 

benefit of exclusion. Areas were 

determined to be eligible for exclusion 

based on economic impacts using one 

simple decision rule: An area was 

eligible for exclusion based on 

economic impacts if the economic 

benefit of exclusion is greater than the 

conservation benefit of designation. The 

dollar thresholds and decision rule 

provided a relatively simple process for 

identifying specific areas warranting 

consideration for exclusion. Table 5 

below provides information regarding 

each area’s eligibility for exclusion 

based on our analysis. 

As shown in Table 5, Areas 1, 2, and 

7 are not eligible for exclusion based on 

economic benefits of exclusion, as these 

benefits do not directly outweigh the 

conservation benefit of designation. 

Areas 1, 2 and 7 all scored a high 

Benefit of Designation score. Area 1 

scored a medium Economic Benefit of 

Exclusion, and Areas 2 and 7 scored a 

low Economic Benefit of Exclusion. 

Therefore for each of these areas the 

Benefit of Designation outweighs the 

Economic Benefit of Exclusion. NMFS 

has therefore determined that these 3 

areas are not Eligible for exclusion 

based on economic impacts. 

TABLE 5—COMPARISON OF THE ECONOMIC BENEFITS OF EXCLUSION AND THE CONSERVATION BENEFITS OF

DESIGNATION, INDICATING WHICH AREAS ARE ELIGIBLE FOR EXCLUSION BASED ON ECONOMIC IMPACTS. 

Areas 

Mid-point of 

annualized 

cost 

Economic benefit of exclusion Conservation benefit of 

designation 

Eligible for exclusion based 

on economic impacts? 

1 ............................................. $4,125,000 Medium .................................. High ........................................ No. 

2 ............................................. 238,000 Low ........................................ High ........................................ No. 

7 ............................................. 276,000 Low ........................................ High ........................................ No. 

Note: The cost estimates above do not include estimated costs for oil spill response, power plants, LNG or wind energy projects. See the economic report for more details. 

Exclusions Based on Impacts on 

National Security 

Section 4(b)(2) of the ESA directs the 

Secretary to consider possible impacts 

on national security when determining 

critical habitat. Discussions with the 

DOD indicated that there is an overlap 

between the areas originally proposed as 

critical habitat and areas off the 

Washington State and Southern 

California coasts where the U.S. Navy 

conducts training exercises. DOD 

proposed exclusion of the overlap areas 

from critical habitat designation based 

on national security. During this time 

frame NMFS revised its critical habitat 

designation to include only one Primary 

Constituent Element (PCE), the prey 

PCE. As required by section 4(b)(8) of 

the ESA, NMFS briefly evaluated and 

described in this final rule to the 

maximum extent practicable, those 

activities that might occur within the 

areas designated that may destroy or 

adversely modify critical habitat 

designated or be affected by such 

designation. NMFS concluded that the 

Navy’s present training activities are not 

the types of activities which may 

adversely modify critical habitat 

designated for the leatherback, 

specifically the prey PCE, or likely to be 

affected by the designation. As a result, 

NMFS found that the present Navy 

training activities are not likely to be 

affected by this designation of critical 

habitat. Because designation is not 

likely to affect Navy activities, NMFS 

concluded that the designation of 

critical habitat will not cause an 

appreciable impact on national security, 

and therefore the benefits of exclusion 

do not outweigh the benefits of 

designation. No exclusion based on 

impacts to national security was 

warranted. 

Exclusions Based on Other Relevant 

Impacts 

As noted, we are required to consider 

other relevant impacts of designating a 

particular area as critical habitat before 

a final designation. In the proposed rule, 

we explained that impacts to tribes, 

particularly those related to tribal 

sovereignty over management of natural 

resources on tribal lands and 

maintenance of relationships for 

cooperative conservation of such 

resources, were relevant impacts for 

evaluation in the ESA 4(b)(2) analysis to 

determine whether tribal lands were 

eligible for exclusion. We considered 

the impacts to tribal lands and resources 

and the relationship between the agency 

and affected Tribes. Based on comments 

from and coordination and consultation 

with federally recognized indian tribes 

in response to the proposed rule, we reevaluated the potential impacts to 

affected Tribes with a focus on tribal 

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lands and access to usual and 

accustomed areas for fishing in 

accordance with established treaty 

rights. 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and agreements, 

which differentiate tribal governments 

from the other entities that deal with, or 

are affected by, the Federal Government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Tribes and the application of fiduciary 

standards of due care with respect to 

Indian lands, tribal trust resources, and 

the exercise of tribal rights. Pursuant to 

these authorities lands have been 

retained by Indian Tribes or have been 

set aside for tribal use. These lands are 

managed by Indian Tribes in accordance 

with tribal goals and objectives within 

the framework of applicable treaties and 

laws. Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments, outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. Indian lands are those defined 

in the Secretarial Order ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997), 

including: (1) Lands held in trust by the 

United States for the benefit of any 

Indian tribe; (2) land held in trust by the 

United States for any Indian Tribe or 

individual subject to restrictions by the 

United States against alienation; (3) fee 

lands, either within or outside the 

reservation boundaries, owned by the 

tribal government; and (4) fee lands 

within the reservation boundaries 

owned by individual Indians. When we 

consult with Tribes on matters affecting 

tribal interests including land and 

natural resources, we must do so on a 

government-to-government basis in 

recognition of the 1997 Secretarial 

Order. 

As described in the proposed rule and 

documentation supporting this final 

rule, we acknowledge that the best 

available information on habitat use by 

leatherback turtles in the northeast 

Pacific Ocean is limited. As such we 

reviewed maps indicating that some 

Indian lands along the Washington coast 

likely overlap with areas under 

consideration as critical habitat for 

leatherback turtles. These overlapping 

areas consist of a narrow intertidal zone 

associated with several coastal Indian 

reservations, from the line of mean 

lower low water (the shoreward extent 

of the proposed critical habitat) to the 

extent of tribal land demarcated by the 

line of extreme low water. In 

consideration of Executive Order 13175 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ and the 

1997 Secretarial Order, ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities and the 

Endangered Species Act,’’ we made 

numerous additional attempts to meet 

with members of the Makah and 

Quileute tribes. A government-togovernment meeting with the Makah 

tribe was held in June 2011 to discuss 

the designation. 

Between the proposed and final rule, 

we re-assessed several spatial and 

biological elements of the proposed 

critical habitat designation and 

determined that the line of extreme low 

water more accurately depicts the 

shoreward extent of areas occupied by 

leatherback turtles (i.e., they are 

foraging in these waters and not 

accessing the beaches). Given this 

boundary change, there is no longer an 

overlap between designated areas and 

areas that meet the definition of Indian 

lands. Thus, the benefits of exclusion 

identified in the proposed rule related 

to avoidance of impacts to tribal lands 

and related tribal sovereignty and 

management of resources are 

substantially reduced or avoided 

altogether with the absence of tribal 

lands in the final designation. 

NMFS acknowledges the presence of 

tribal usual and accustomed fishing 

grounds within Area 2. We considered 

the tribal concerns and concluded that 

the benefits of excluding these 

particular usual and accustomed fishing 

areas do not outweigh the benefits of 

designating these areas as critical 

habitat for leatherback turtles. The tribes 

have not identified any treaty-related 

activities in their usual and accustomed 

fishing areas that are likely to affect 

jellyfish and therefore likely to be 

affected by a critical habitat designation. 

Moreover, usual and accustomed fishing 

areas, while vitally important to the 

exercise of treaty-secured fishing rights, 

are not reserved by the United States for 

the exclusive use of a tribe, nor are they 

subject to the sovereign authority of a 

tribal government, as is the case with 

Indian lands. 

As required by section 4(b)(8) of the 

ESA, NMFS briefly evaluated and 

described in this final rule, to the 

maximum extent practicable, those 

activities that might occur within the 

areas designated that may destroy or 

adversely modify critical habitat 

designated or be affected by such 

designation. NMFS concluded that the 

tribes’ present fishing activities are not 

the types of activities that may 

adversely modify critical habitat 

designated for the leatherback, 

specifically the prey PCE, or likely to be 

affected by the designation. 

For these reasons, we conclude there 

is no impact of a critical habitat 

designation to treaty-secured fishing 

rights, and little impact to tribal 

sovereignty and self-governance. Given 

the high conservation value of Area 2, 

we have determined that the benefits of 

excluding the area overlapping with 

usual and accustomed fishing grounds 

do not outweigh the benefits of 

including this area in the final 

designation. We are making no 

exclusions under 4(b)(2) based on other 

relevant impacts. 

Critical Habitat Designation 

Based on the information provided 

below, the public comments received 

and the further analysis that was done 

since the proposed rulemaking, we 

hereby designate as critical habitat for 

leatherbacks Areas 1, 2, and 7, which 

include approximately 41,913 square 

miles (108,558 square km) of marine 

habitat in California, Oregon, and 

Washington and offshore Federal 

waters. The designated critical habitat 

areas contain the physical or biological 

feature—prey species—essential to the 

conservation of the species that may 

require special management 

considerations or protection. We are not 

exercising our discretion to exclude any 

areas from this designation based on 

economic, national security or other 

relevant impacts. 

Effects of Critical Habitat Designation 

Section 7(a)(2) of the ESA requires 

Federal agencies to insure that any 

action authorized, funded, or carried out 

by the agency (agency action) does not 

jeopardize the continued existence of 

any threatened or endangered species or 

destroy or adversely modify designated 

critical habitat. When a species is listed 

or critical habitat is designated, Federal 

agencies must consult with NMFS on 

any agency actions to be conducted in 

an area where the species is present and 

that may affect the species or its critical 

habitat. During the consultation, we 

would evaluate the agency action to 

determine whether the action may 

adversely affect listed species or critical 

habitat and issue our findings in a 

biological opinion or concurrence letter. 

If we conclude in the biological opinion 

that the agency action would likely 

result in the destruction or adverse 

modification of critical habitat, we 

would also recommend any reasonable 

and prudent alternatives to the action. 

Reasonable and prudent alternatives 

(defined in 50 CFR 402.02) are 

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alternative actions identified during 

formal consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid the destruction or adverse 

modification of critical habitat. 

Regulations (50 CFR 402.16) require 

Federal agencies that have retained 

discretionary involvement or control 

over an action, or where such 

discretionary involvement or control is 

authorized by law, to reinitiate 

consultation on previously reviewed 

actions in instances where: (1) Critical 

habitat is subsequently designated; or 

(2) new information or changes to the 

action may result in effects to critical 

habitat not previously considered in the 

biological opinion. Consequently, some 

Federal agencies may request 

reinitiation of a consultation or 

conference with us on actions for which 

formal consultation has been completed, 

if those actions may affect designated 

critical habitat or adversely modify or 

destroy critical habitat. Activities 

subject to the ESA section 7 

consultation process include activities 

on Federal lands and activities on 

private or state lands requiring a permit 

from a Federal agency (e.g., an ESA 

section 10(a)(1)(B) permit from NMFS) 

or some other Federal action, including 

funding (e.g., Federal Highway 

Administration (FHA)). ESA section 7 

consultation would not be required for 

Federal actions that do not affect listed 

species or critical habitat and for actions 

on non-federal and private lands that 

are not federally funded, authorized, or 

carried out. 

Activities That May Be Affected 

Section 4(b)(8) of the ESA requires, to 

the maximum extent practicable, in a 

final regulation to designate or revise 

critical habitat, an evaluation and brief 

description of those activities (whether 

public or private) that may destroy or 

adversely modify such habitat or that 

may be affected by such designation. A 

variety of activities may affect 

leatherback critical habitat and, when 

carried out, funded, or authorized by a 

Federal agency, will require an ESA 

section 7 consultation. These Federal 

actions and/or regulated activities 

(detailed in the economic report and in 

previous sections of this rule) include: 

regulation of point source pollution, 

particularly NPDES facilities and 

pesticide application (e.g., EPA); oil 

spill response (e.g., U.S. Coast Guard 

and EPA have response authorities); 

power plants (e.g., Nuclear Regulatory 

Commission (NRC) regulates 

commercial nuclear power); 

desalination plants (e.g., EPA regulates 

discharge/USCG and U.S. Army Corps 

of Engineers are involved with 

permitting or approving structures or 

placing fill that may affect navigation); 

tidal/wave/wind energy (e.g., FERC or 

BOEM permitting, licensing or leasing); 

and LNG projects (e.g., FERC or USCG 

permitting requirement). Private 

entities’ implementation of activities 

related to the foregoing categories could 

be affected to the extent those activities 

rely on federal funding, permitting or 

other authorization. These activities 

would need to be evaluated with respect 

to their potential to destroy or adversely 

modify critical habitat. Formal 

consultation under section 7(a)(2) of the 

ESA could result in changes to the 

activities to minimize adverse impacts 

to critical habitat or avoid destruction or 

adverse modification of such habitat. 

We believe this final rule will provide 

Federal agencies, private entities, and 

the public with clear notification of 

critical habitat for leatherback sea 

turtles and the boundaries of such 

habitat. This designation will also allow 

Federal agencies and others to evaluate 

the potential effects of their activities on 

critical habitat to determine if an ESA 

section 7 consultation with NMFS is 

needed. 

Information Quality Act and Peer 

Review 

The data and analyses supporting this 

designation have undergone a predissemination review and have been 

determined to be in compliance with 

applicable information quality 

guidelines implementing the 

Information Quality Act (IQA) (Section 

515 of Public Law 106–554). In 

December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review pursuant to the IQA. The 

Bulletin established minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation with regard to certain 

types of information disseminated by 

the Federal Government. The peer 

review requirements of the OMB 

Bulletin apply to influential or highly 

influential scientific information 

disseminated on or after June 16, 2005. 

To satisfy our requirements under the 

OMB Bulletin, we obtained independent 

peer review of the Biological and 

Economic Reports that support the 

designation of critical habitat for the 

leatherback sea turtle and incorporated 

the peer review comments prior to and 

within this rulemaking. 

Classification 

Regulatory Planning and Review 

The Office of Management and Budget 

(OMB) has determined that this final 

rule is significant under Executive 

Order 12866. An economic report and 

4(b)(2) report have been prepared to 

support the exclusion process under 

section 4(b)(2) of the ESA and our 

consideration of alternatives to 

rulemaking. 

National Environmental Policy Act 

We have determined that an 

environmental analysis as provided for 

under the National Environmental 

Policy Act of 1969 for critical habitat 

designations made pursuant to the ESA 

is not required. See Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995), 

cert. denied, 116 S.Ct 698 (1996). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency publishes a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis describing 

the effects of the rule on small entities 

(i.e., small businesses, small 

organizations, and small government 

jurisdictions). We have prepared a final 

regulatory flexibility analysis (FRFA). 

This document is available upon request 

(see ADDRESSES), via our Web site 

http://www.nmfs.noaa.gov/pr/species/ 

turtles/leatherback.htm#documents, or 

via the Federal eRulemaking web site at 

http://www.regulations.gov. The results 

of the FRFA are summarized below. A 

description of the action, why it is being 

considered, and the objectives of and 

legal basis for this action are contained 

in the preamble of this rule. 

The impacts to small businesses were 

assessed for the following six activities: 

NPDES activities; agriculture; oil spills; 

power plants; tidal, wave, and wind 

energy projects; and LNG projects. The 

impacts on small entities were not 

assessed for desalination plants 

facilities due to lack of information. 

At the present time, little information 

exists regarding the cost structure and 

operational procedures and strategies in 

the sectors (noted above) that may be 

directly affected by the critical habitat 

designation. In addition, a great deal of 

uncertainty exists with regard to how 

potentially regulated entities will 

attempt to avoid the destruction or 

adverse modification of critical habitat. 

This is because relatively little data 

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4198 Federal Register / Vol. 77, No. 17 / Thursday, January 26, 2012 / Rules and Regulations 

exist on the effects to leatherback sea 

turtles and their prey from aspects of the 

activities identified. With these 

limitations in mind, we considered 

which of the potential economic 

impacts we analyzed might affect small 

entities. These estimates should not be 

considered exact estimates of the 

impacts of potential critical habitat to 

individual businesses. 

Small entities are defined by the 

Small Business Administration size 

standards for each activity type. We 

identified a total of 3,385 entities as 

small businesses involved in the 

activities listed above that would most 

likely be affected by the critical habitat 

designation. The majority (≤ 97 percent) 

of these entities would be considered 

small entities. The estimated economic 

impacts on small entities vary 

depending on the activity type and 

location. The estimated annualized 

costs associated with ESA section 7 

consultations incurred per small entity 

range from $0 to $25,350 per areaactivity type combination, with the 

largest annualized impacts estimated for 

entities involved in tidal and wave 

energy projects ($0 to $25,350). These 

amounts are most likely overestimates, 

as they are based on assumptions that 

such actions may not be able to proceed 

if a consultation finds that the project 

adversely modified critical habitat. 

As required by the RFA (as amended 

by the SBREFA), we considered various 

alternatives to the critical habitat 

designation for the leatherback. The first 

alternative, not designating critical 

habitat for leatherbacks, would impose 

no economic, national security, or other 

relevant impacts, but would not provide 

any conservation benefit to the species. 

This alternative was rejected because 

such an approach does not meet the 

legal requirements of the ESA and 

would not provide for the conservation 

of the species if such benefits could be 

gained through designation. 

The second alternative, designating a 

subset of the areas eligible as critical 

habitat, was also rejected. The 

determination of which particular areas 

to exclude, if any, is subject to the 

Secretary’s discretion after 

consideration of impacts of the 

designation in accordance with section 

4(b)(2) of the ESA. After evaluating each 

of our particular areas through a ESA 

section 4(b)(2) analysis, it was 

determined that the economic benefits 

of exclusion did not outweigh the 

conservation benefit to the species of 

designation, therefore, we determined 

that no exclusions would be made. 

The third alternative, our preferred 

alternative, of designating all potential 

critical habitat areas (i.e., no areas 

excluded) was considered and accepted. 

We accepted this alternative after 

conducting an ESA section 4(b)(2) 

analysis, and determining that the 

economic benefits of exclusion did not 

outweighed the conservation benefit to 

the species. We selected this third 

alternative because it would result in a 

critical habitat designation that provides 

for the conservation of the species, and 

meets ESA and joint NMFS and USFWS 

regulations concerning critical habitat at 

50 CFR part 424. 

Coastal Zone Management Act 

Section 307(c)(1) of the Federal 

Coastal Zone Management Act of 1972 

requires that all Federal activities that 

affect land or water use or natural 

resources of the coastal zone be 

consistent with approved state coastal 

zone management programs to the 

maximum extent practicable. We have 

determined that this designation of 

critical habitat is consistent to the 

maximum extent practicable with the 

enforceable policies of approved Coastal 

Zone Management Programs of 

California, Oregon, and Washington. 

The determination was submitted for 

review by the responsible agencies in 

the aforementioned states, and no 

objections were received. 

Federalism 

Executive Order 13132 requires 

agencies to take into account any 

Federalism impacts of regulations under 

development. It includes specific 

consultation directives for situations 

where a regulation will preempt state 

law, or impose substantial direct 

compliance costs on state and local 

governments (unless required by 

statute). We have determined that the 

designation of critical habitat for the 

leatherback sea turtle under the ESA 

does not have federalism implications. 

Consistent with the requirements of 

Executive Order 13132, recognizing the 

intent of the Administration and 

Congress to provide continuing and 

meaningful dialogue on issues of mutual 

state and Federal interest, and in 

keeping with Department of Commerce 

policies, the Assistant Secretary for 

Legislative and Intergovernmental 

Affairs has provided notice of this 

designation and requested comments 

from the appropriate officials in states 

where leatherback sea turtles occur. 

Paperwork Reduction Act 

This final rule does not contain a 

collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act, we make the 

following findings: (a) The designation 

of critical habitat does not impose an 

‘‘enforceable duty’’ on state, local, tribal 

governments or the private sector and 

therefore does not qualify as a Federal 

mandate. In general, a Federal mandate 

is a provision in legislation, statute, or 

regulation that would impose an 

‘‘enforceable duty’’ upon non-federal 

governments, or the private sector and 

includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

Under the ESA, the only regulatory 

effect is that Federal agencies must 

ensure that their actions do not 

jeopardize the continued existence of 

the species or destroy or adversely 

modify critical habitat under section 7. 

While non-federal entities that receive 

Federal funding, assistance, permits or 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid jeopardy 

and the destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonfederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply; (b) We 

conclude that this final rule would not 

significantly or uniquely affect small 

governments because it is not likely to 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. In addition, the designation of 

critical habitat imposes no obligations 

on local, state or tribal governments. 

Therefore, a Small Government Agency 

Plan is not required. 

Takings 

Under Executive Order 12630, Federal 

agencies must consider the effects of 

their actions on constitutionally 

protected private property rights and 

avoid unnecessary takings of property. 

A taking of property includes actions 

that result in physical invasion or 

occupancy of private property, and 

regulations imposed on private property 

that substantially affect its value or use. 

In accordance with Executive Order 

12630, the critical habitat designation 

does not pose significant takings 

implications. A takings implication 

assessment is not required here. This 

designation affects only Federal agency 

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actions (i.e., those actions authorized, 

funded, or carried out by Federal 

agencies). Therefore, the critical habitat 

designation does not affect landowner 

actions that do not require Federal 

funding or permits. Additionally, this 

final critical habitat designation does 

not preclude the development of Habitat 

Conservation Plans and issuance of 

incidental take permits for non-Federal 

actions. 

Government to Government 

Relationships With Tribes 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and agreements, 

which differentiate tribal governments 

from the other entities that deal with, or 

are affected by, the Federal Government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Indian Tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, tribal trust 

resources, and the exercise of tribal 

rights. Executive Order 13175, 

Consultation and Coordination with 

Indian Tribal Governments, outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. If NMFS issues a regulation 

with tribal implications (defined as 

having a substantial direct effect on one 

or more Indian tribes, on the 

relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes) we must 

consult with those governments or the 

Federal Government must provide funds 

necessary to pay direct compliance costs 

incurred by tribal governments. 

The critical habitat designation does 

not overlap with Indian lands (see 

Exclusions for Indian Lands section 

above). However, we acknowledge the 

presence of tribal usual and accustomed 

fishing grounds within Area 2. During 

both the public comment period and the 

government-to-government consultation 

process we heard the concerns of coastal 

tribes related to the overlap of critical 

habitat and the tribal usual and 

accustomed fishing areas. NMFS briefly 

evaluated and described in this final 

rule, to the maximum extent practicable, 

those activities that might occur within 

the areas designated that may destroy or 

adversely modify critical habitat 

designated or be affected by such 

designation. NMFS concluded that the 

tribes, present fishing activities are not 

the types of activities that may 

adversely modify critical habitat 

designated for the leatherback, 

specifically the prey PCE, or likely to be 

affected by the designation. 

For these reasons, we considered the 

tribal concerns and concluded that the 

benefits of excluding these particular 

usual and accustomed fishing areas do 

not outweigh the benefits of designating 

these areas as critical habitat for 

leatherback turtles. The tribes have not 

identified any treaty-related activities in 

their usual and accustomed fishing 

areas that are likely to affect jellyfish 

and therefore likely to be affected by a 

critical habitat designation. Moreover, 

usual and accustomed fishing areas, 

while vitally important to the exercise 

of treaty-secured fishing rights, are not 

reserved by the United States for the 

exclusive use of a tribe, nor are they 

subject to the sovereign authority of a 

tribal government, as is the case with 

Indian lands. Additionally, other 

activities may occur within the tribal 

usual and accustomed fishing areas that 

may require a section 7 consultation for 

leatherback critical habitat; therefore, 

we conclude there is no impact of a 

critical habitat designation to treatysecured fishing rights, and little impact 

to tribal sovereignty and selfgovernance. 

We acknowledge that the Makah 

Indian Tribe disagrees with our 

assessment and is concerned about 

potential impacts to the Tribe’s fishing 

rights. We will continue to coordinate 

with the Tribe as we implement our 

responsibilities under section 7 with 

respect to leatherback turtles, in the 

event a conflict does in fact arise 

between conservation of leatherback 

critical habitat and the exercise of tribal 

rights. 

Energy Effects 

Executive Order 13211 requires 

agencies to prepare a Statement of 

Energy Effects when undertaking a 

‘‘significant energy action.’’ According 

to Executive Order 13211, ‘‘significant 

energy action’’ means any action by an 

agency that is expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under Executive Order 12866 and 

is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. We have considered the 

potential impacts of this action on the 

supply, distribution, or use of energy 

(see economic report). Activities 

associated with the supply, distribution, 

or uses of energy that may be affected 

by the critical habitat designation 

include the operation of: (1) Power 

plants; (2) proposed and potential tidal, 

wave and wind energy projects; and (3) 

liquefied natural gas projects. 

The final economic analysis identified 

seven power plants that may be affected 

by this critical habitat designation. 

Future management and required 

project modifications for leatherback 

critical habitat related to power plants 

under ESA section 7 consultation 

include: cooling of thermal effluent 

before release to the environment; 

treatment of any contaminated waste 

materials; and modifications associated 

with permits issued under NPDES. All 

of the power plants are located on the 

California coast and are subject to 

existing regulations through the NRC 

and California Energy Commission. 

The economic analysis identified 

eleven tidal, wave, or wind energy 

projects that may be affected by this 

critical habitat designation. Nine of 

these energy projects have received 

preliminary permits from the FERC, one 

of the projects has a pending application 

and one of the projects is proposed. 

Given the necessary timeframes for 

project construction, it may be 

reasonable to assume that this set of 

projects will incur modification costs 

related to leatherback critical habitat 

within the next 20 years. However, it 

should also be noted that other new 

permit applications are likely to be filed 

in the future, and that rate of 

application may be increasing. 

Given that these projects are in their 

preliminary stages, it is not clear what 

effects the projects will have on habitats 

and natural resources, nor what effects 

a critical habitat designation would 

have on these projects. The exact nature 

of habitat impacts is difficult to predict; 

however, possible impacts to features of 

the potential leatherback critical habitat 

include disturbance to prey species 

during their benthic polyp stage. 

The economic analysis identified two 

LNG projects that may be affected by 

leatherback critical habitat. FERC 

regulates LNG projects, and there is one 

proposed LNG project and one potential 

LNG project within the analyzed areas. 

Like the alternative energy projects, 

there is a high degree of uncertainty 

regarding whether these proposed 

projects will be implemented. As a 

result, it is unclear at this time what 

effects a critical habitat designation 

would have on these proposed LNG 

projects. However, available information 

indicates that project modifications may 

include: biological monitoring; spatial 

restrictions on project installation; and 

specific measures to respond to 

catastrophes. We have determined that 

the energy effects of this rule are 

unlikely to exceed the energy impact 

thresholds identified in Executive Order 

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4200 Federal Register / Vol. 77, No. 17 / Thursday, January 26, 2012 / Rules and Regulations 

13211 and that this rulemaking is, 

therefore, not a significant energy 

action. 

References Cited 

A complete list of all references cited 

in this rule making can be found on our 

Web site at http://www.nmfs.noaa.gov/ 

pr/species/turtles/ 

leatherback.htm#documents, and is 

available upon request from the NMFS 

[see ADDRESSES]. 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: January 11, 2012. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, this final rule amends part 

226, title 50 of the Code of Federal 

Regulations as set forth below: 

PART 226—DESIGNATED CRITICAL 

HABITAT 

■ 1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. Revise § 226.207, to read as follows: 

§ 226.207 Critical habitat for leatherback 

turtles (Dermochelys coriacea). 

Critical habitat is designated for 

leatherback turtles as described in this 

section. The textual descriptions of 

critical habitat in this section are the 

definitive source for determining the 

critical habitat boundaries. The 

overview map is provided for general 

guidance purposes only and not as a 

definitive source for determining critical 

habitat boundaries. 

(a) The waters adjacent to Sandy 

Point, St. Croix, U.S. Virgin Islands, up 

to and inclusive of the waters from the 

hundred fathom curve shoreward to the 

level of mean high tide with boundaries 

at 17°42′12′′ N. and 64°50′00′′ W. 

(b) All U.S. coastal marine waters 

within the areas in paragraphs (b)(1) and 

(2) of this section and as described in 

paragraphs (b)(3) and (4) of this section 

and depicted in paragraph (b)(5) of this 

section: 

(1) California. 

(i) The area bounded by Point Sur 

(36°18′22′′ N./121°54′9′′ W.) then north 

along the shoreline following the line of 

extreme low water to Point Arena, 

California (38°57′14′′ N./123°44′26′′ W.) 

then west to 38°57′14′′ N./123°56′44′′ W. 

then south along the 200 meter isobath 

to 36°18′46′′ N./122°4′43′′ W. then east 

to the point of origin at Point Sur. 

(ii) Nearshore area from Point Arena, 

California, to Point Arguello, California 

(34°34′33′′ N./120°38′41′′ W.), exclusive 

of Area 1 (see above) and offshore to a 

line connecting 38°57′14′′ N./124°18′36′′ 

W. and 34°34′32′′ N./121°39′51′′ W along 

the 3000 meter isobath. 

(2) Oregon/Washington. The area 

bounded by Cape Blanco, Oregon 

(42°50′4′′ N./124°33′44′′ W.) north along 

the shoreline following the line of 

extreme low water to Cape Flattery, 

Washington (48°23′10′′ N./124°43′32′′ 

W.) then north to the U.S./Canada 

boundary at 48°29′38′′ N./124°43′32′′ W. 

then west and south along the line of 

the U.S. Exclusive Economic Zone to 

47° 57′38′′ N./126° 22′54′′ W. then south 

along a line approximating the 2,000 

meter isobath that passes through points 

at 47° 39′55′′ N./126°13′28′′ W., 

45°20′16′′ N./125°21′ W. to 42°49′59′′ N./ 

125°8′10′′ W. then east to the point of 

origin at Cape Blanco. 

(3) Critical habitat extends to a water 

depth of 80 meters from the ocean 

surface and is delineated along the 

shoreline at the line of extreme low 

water, except in the case of estuaries 

and bays where COLREGS lines 

(defined at 33 CFR part 80) shall be used 

as the shoreward boundary of critical 

habitat. 

(4) Primary Constituent Elements. The 

primary constituent element essential 

for conservation of leatherback turtles is 

the occurrence of prey species, 

primarily scyphomedusae of the order 

Semaeostomeae (Chrysaora, Aurelia, 

Phacellophora, and Cyanea), of 

sufficient condition, distribution, 

diversity, abundance and density 

necessary to support individual as well 

as population growth, reproduction, and 

development of leatherbacks. 

(5) A map of critical habitat for 

leatherback sea turtles follows. 

mstockstill on DSK4VPTVN1PROD with RULES3

Federal Register / Vol. 77, No. 17 / Thursday, January 26, 2012 / Rules and Regulations 4201 

[FR Doc. 2012–995 Filed 1–20–12; 11:15 am] 

BILLING CODE 3510–22–P 


mstockstill on DSK4VPTVN1PROD with RULES3ER26JA12.016</GPH>