Endangered and Threatened Species: Proposed Rule To Revise the Critical Habitat Designation for the Endangered Leatherback Sea Turtle, 319-335 [E9-31310]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Proposed Rules]
[Pages 319-335]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-31310]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0808061067-91396-01]
RIN 0648-AX06


Endangered and Threatened Species: Proposed 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: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose 
revising the current critical habitat for the leatherback sea turtle 
(Dermochelys coriacea) by designating additional areas within the 
Pacific Ocean. Specific areas proposed for designation include two 
adjacent marine areas totaling approximately 46,100 square miles 
(119,400 square km) stretching along the California coast from Point 
Arena to Point Vincente; and one 24,500 square mile (63,455 square km) 
marine area stretching from Cape Flattery, Washington to the Umpqua 
River (Winchester Bay), Oregon east of a line approximating the 2,000 
meter depth contour. The areas proposed for designation comprise 
approximately 70,600 square miles (182,854 square km) of marine 
habitat. Other Pacific waters within the U.S. Exclusive Economic Zone 
(EEZ) were evaluated based on the geographical area occupied by the 
species, but it was decided to exclude those areas from the critical 
habitat designation because the potential costs outweighed the benefits 
of critical habitat designation and exclusion would not result in the 
extinction of the species. We are soliciting comments from the public 
on all aspects of the proposal, including information on the economic, 
national security, and other relevant impacts. We will consider 
additional information received prior to making a final designation.

DATES: Comments and information regarding this proposed rule must be 
received by March 8, 2010.

ADDRESSES: You may submit comments, identified by RIN 0648-AX06, 
addressed to: David Cottingham, Chief, Marine Mammal and Sea Turtle 
Conservation Division, by any of the following methods:

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     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal https://www.regulations.gov.
     Facsimile (fax): 301-713-4060, Attn: David Cottingham.
     Mail: Chief, Marine Mammal and Sea Turtle Conservation 
Division, NMFS, Office of Protected Resources, 1315 East West Highway, 
Silver Spring, MD 20910.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to https://www.regulations.gov without change. NMFS may elect not to post comments 
that contain obscene or threatening content. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only. The proposed rule, list of references and supporting 
documents, including the biological report, economic report, IRFA 
analysis, and 4(b)(2) report, are also available electronically at 
https://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents.

FOR FURTHER INFORMATION CONTACT: Sara McNulty, NMFS, Office of 
Protected Resources, 301-713-2322; Elizabeth Petras, NMFS Southwest 
Region, 562-980-3238; Steve Stone, NMFS Northwest Region, 503-231-2317.

SUPPLEMENTARY INFORMATION:

Background

    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). The 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, Oceana, and Turtle Island Restoration Network 
(``Petitioners'') to revise the leatherback critical habitat 
designation. The Petitioners sought to revise the designation to 
include the area currently managed under the authority of the Magnuson-
Stevens Fishery Conservation and Management Reauthorization Act to 
reduce leatherback interactions in the California/Oregon drift gillnet 
fishery targeting swordfish and thresher sharks. This area encompasses 
roughly 200,000 square miles (321,870 square km) of the U.S. EEZ from 
45[deg] N. latitude about 100 miles (160 km) south of the Washington/
Oregon border southward to Point Sur, California and along a diagonal 
line due west of Point Conception, California, and west to 129[deg] W. 
longitude. Under the current regulations implementing the Highly 
Migratory Species Fishery Management Plan, the use of large mesh drift 
gillnet gear is prohibited in this area from August 15th through 
November 15th (50 CFR 660.713).
    On December 28, 2007, we announced our 90-day finding that the 
petition provided substantial scientific information indicating that 
the petitioned action may be warranted (72 FR 73745). We did not meet 
the statutory deadline of October 2, 2008 for deciding whether to 
proceed with a proposed designation and the Petitioners filed a lawsuit 
seeking to compel that decision. Per the settlement agreement, we 
agreed to submit this finding to the Federal Register by December 4, 
2009. We were then granted an extension to submit this finding by 
December 31, 2009.
    When initially evaluating the petition to designate critical 
habitat off the U.S. West Coast, we reviewed a variety of data sources 
to identify specific areas within and adjacent to the petitioned area 
that might warrant consideration as critical habitat. Due to the 
extensive movements of leatherback sea turtles throughout the U.S. West 
Coast within the U.S. EEZ, we determined that areas adjacent to the 
petitioned area should also be considered. Additionally, the petitioned 
area included waters outside the U.S. EEZ, however, 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. Therefore, this CH 
analysis evaluated approximately 292,600 square miles (757,833 square 
km) of Pacific waters within the U.S. West Coast EEZ.
    We considered various alternatives to the critical habitat 
designation for the leatherback sea turtle. The alternative of 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. The alternative of designating all potential critical 
habitat areas (i.e., no areas excluded) also was considered and 
rejected because, for a number of areas, the economic benefits of 
exclusion outweighed the benefits of inclusion, and we determined that 
exclusion of these areas would not significantly impede conservation or 
result in extinction of the species. The total estimated annualized 
economic impact associated with the designation of all potential 
critical habitat areas would be $3.8 million to $25.5 million 
(discounted at 7 percent) or $3.5 million to $25 million (discounted at 
3 percent). An alternative to designating critical habitat within all 
of the areas considered for designation is the designation of critical 
habitat within a subset of those areas. 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. NMFS has the discretion to exclude an area from 
designation as critical habitat if the benefits of exclusion (i.e., the 
impacts that would be avoided if an area were excluded from the 
designation) outweigh the benefits of designation (i.e., the 
conservation benefits if an area were designated), so long as exclusion 
of the area will not result in extinction of the species. Exclusion 
under section 4(b)(2) of the ESA of one or more of the particular areas 
considered for designation would reduce the total impacts of 
designation. The determination of which particular areas and how many 
to exclude depends on NMFS' ESA 4(b)(2) analysis, which is conducted 
for each area and described in detail in the 4(b)(2) report. Under the 
preferred alternative, we propose to exclude 5 out of 8 areas 
considered. The total estimated economic impact associated with this 
proposed rule is $3.1 million to $20.4 million (discounted at 7 
percent) or $2.8 million to $20 million (discounted at 3 percent).

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We believe that the exclusion of these areas would not significantly 
impede conservation or result in the extinction of the leatherback sea 
turtle. We selected this alternative because it would result in a 
critical habitat designation that provides for the conservation of the 
species while reducing the economic impacts on entities. This 
alternative also meets ESA and joint NMFS and USFWS regulations 
concerning critical habitat.

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 chelonid 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 
(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 enable leatherbacks to extend their 
geographic range farther than other species of sea turtles.
    The leatherback life cycle is broken into several stages: (1) Egg/
hatchling; (2) post-hatchling; (3) juvenile; (4) sub-adult; and (5) 
adult. There is still uncertainty regarding the age at first 
reproduction. The most recent study, based on skeletochronological data 
from scleral ossicles, suggests that leatherbacks in the western North 
Atlantic may not reach maturity until 29 years of age (Avens et al., 
2009), which is longer than earlier estimates (Pritchard and Trebbau, 
1984: 2-3 years; Rhodin, 1985: 3-6 years; Zug and Parham, 1996: 13-14 
years for females; Dutton et al., 2005: 12-14 years for leatherbacks 
nesting in the U.S. Virgin Islands). The average size of reproductively 
active females is generally 150-162 cm CCL for Atlantic, western 
Pacific, and Indian Ocean populations, and 140-150 cm CCL for eastern 
Pacific populations (Hirth et al., 1993; Starbird and Suarez, 1994; 
Benson et al., 2007a; Benson et al., 2007d). However, females as small 
as 105-125 cm CCL have been observed nesting at various sites (Stewart 
et al., 2007). Rhodin et al. (1996) speculated that extreme rapid 
growth may be possible in leatherbacks due to a mechanism that allows 
fast penetration of vascular canals into the fast growing cartilaginous 
matrix of their bones. Whether the vascularized cartilage in 
leatherbacks serves to facilitate rapid growth, or some other 
physiological function, has not yet been determined.
    Female leatherbacks typically nest on sandy, tropical beaches at 
intervals of 2 to 4 years (McDonald and Dutton, 1996; Garcia and Sarti, 
2000; Spotila et al., 2000). Females lay clutches of approximately 100 
eggs several times during a nesting season, typically at 8-12 day 
intervals. Female leatherbacks appear to exhibit more variable nesting 
site fidelity than cheloniids and may nest at more than one beach in a 
single season (Eckert et al., 1989a; Keinath and Musick, 1993; 
Steyermark et al., 1996; Dutton et al., 2005). This nesting behavior 
has been observed in the western Pacific Ocean; one female nesting on 
Jamursba-Medi, Indonesia was observed nesting approximately 30 km east 
on Wermon, Indonesia a few weeks later (S. Benson, NMFS, April 2006, 
pers. comm.).
    A comparison of sex ratios between Atlantic and some Pacific 
nesting populations suggests that Pacific populations may be more 
female biased (Binckley et al., 1998) than Atlantic populations 
(Godfrey et al., 1996; Turtle Expert Working Group, 2007). However, 
caution is necessary when making basin-wide comparisons because only 
one study was conducted in the Pacific (Binckley et al., 1998) and sex 
ratios may vary by beach or even clutch. Chevalier et al. (1999) 
compared temperature-dependent sex determination patterns between the 
Atlantic (French Guiana) and the Pacific (Playa Grande, Costa Rica) and 
found that the range of temperatures producing both sexes was 
significantly narrower for the Atlantic population.
    Reliable estimates of survival and mortality at different life 
history stages are not easily obtained. The annual mortality for 
leatherbacks that nested at Playa Grande, Costa Rica, was estimated to 
be 34.6 percent in 1993-1994 and 34.0 percent in 1994-1995 (Spotila et 
al., 2000). Leatherbacks nesting in French Guiana and St. Croix had 
estimated annual survival rates of 91 percent (Rivalan et al., 2005b) 
and 89 percent (Dutton et al., 2005) respectively. For the St. Croix 
population, the average annual juvenile survival rate was estimated to 
be approximately 63 percent, and the total survival rate from hatchling 
to first year of reproduction for a female was estimated to be between 
0.4 and 2 percent, given an assumed age at first reproduction between 9 
and 13 years (Eguchi et al., 2006). Spotila et al. (1996) estimated 
first year survival rates for leatherbacks at 6.25 percent. Individual 
female leatherbacks have been observed to reproduce as long as 25 years 
(Hughes, 1996; D. Dutton, Ocean Planet Research, Inc., August 2009, 
pers. comm.). The data suggest that leatherbacks follow a life history 
strategy similar to many other long-lived species that delay age of 
maturity, have low and variable survival in the egg and juvenile 
stages, and have relatively high and constant annual survival in the 
subadult and adult life stages (Spotila et al., 1996; 2000; Crouse, 
1999; Heppell et al., 1999; 2003; Chaloupka, 2002).
    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[deg] N. and 47[deg] 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 (> 1,000 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). In a single year, a leatherback may swim more than 10,000 
kilometers (Eckert, 2006; Eckert et al., 2006). Leatherbacks

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nesting in Central America and Mexico migrate thousands of miles into 
tropical and temperate waters of the South Pacific (Eckert and Sarti, 
1997). After nesting, females from Jamursba-Medi, Indonesia, make long-
distance migrations across the equator either to the eastern North 
Pacific, westward to the Sulawasi and Sulu and South China Seas, or 
northward to the Sea of Japan (Benson et al., 2007a). One turtle tagged 
after nesting in July at Jamursba-Medi arrived in waters off Oregon in 
August (Benson et al., 2007a) coincident with seasonal maxima 
aggregations of jellyfish (Shenker, 1984; Suchman and Brodeur, 2005). 
Other studies similarly indicate that leatherbacks arrive 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). Largely 
pelagic, leatherbacks forage widely in temperate waters and exploit 
convergence zones and upwelling areas in the open ocean along 
continental margins and in archipelagic waters (Morreale et al., 1994; 
Eckert, 1998; 1999).

Critical Habitat

    Section 4(b)(2) of the ESA requires NMFS to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' This section also grants the Secretary of Commerce 
(Secretary) discretion to exclude any area from critical habitat if he 
determines ``the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat.'' The Secretary's 
discretion is limited, as he may not exclude areas that ``will result 
in the extinction of the species.''
    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
The specific areas within the geographical area occupied by the 
species, at the time it is listed * * *, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed * * 
* upon a determination by the Secretary that such areas are essential 
for the conservation of the species.''
    If critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that will destroy or adversely modify that habitat. This 
requirement is additional to the section 7 requirement that Federal 
agencies ensure their actions do not jeopardize the continued existence 
of listed species.

Methods and Criteria Used To Identify Critical Habitat

    In the following sections, we describe the relevant definitions and 
requirements in the ESA, our implementing regulations, and the key 
information and criteria used to prepare this proposed critical habitat 
designation. In accordance with section 4(b)(2) of the ESA and our 
implementing regulations (50 CFR 423.12(a)), this proposed rule is 
based on the best scientific information available.
    To assist with the revision of leatherback critical habitat, we 
convened a critical habitat review team (CHRT) consisting of biologists 
from NMFS Headquarters, the Southwest and Northwest Regional Offices, 
and the Southwest and Northwest Fisheries Science Centers. 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, 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's 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 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.'' The 
regulations also require agencies to ``focus on the principle 
biological or physical constituent elements'' (hereafter referred to as 
``Primary Constituent Elements'' or PCEs) within the specific areas 
considered for designation, which may include, but are not limited to, 
the following: spawning sites, feeding sites, water quality or 
quantity, geological formation, and tide.
    The northeastern Pacific Ocean is a highly variable environment 
where the habitat upon which leatherbacks and other marine species 
depend can change rapidly. Although some relatively permanent features 
are present, transient oceanographic features, such as eddies or 
fronts, are strong drivers of ecological interactions. The major 
current of the region is the southward-flowing California Current, 
which is the eastern boundary current within the North Pacific Ocean 
(Huyer, 1983; Hickey, 1979; 1998). The California Current is subject to 
significant variations in seasonal (Barber and Smith, 1981; Hutchings 
et al., 1995; Castelao et al., 2006), inter-annual (e.g. El 
Ni[ntilde]o: Barber and Chavez, 1983), and decadal (e.g. Pacific 
Decadal Oscillation (PDO) cycles: McGowan et al., 1998; 2003) time 
scales, adding variability to local productivity resulting from 
upwelling (Longhurst, 1996).
    Wind-driven coastal upwelling drives primary productivity within 
waters off the U.S. West Coast. As nutrient-rich water comes to the 
surface, phytoplankton blooms occur and are transported offshore. 
Productivity dissipates as upwelled waters move offshore (away from 
regions of upwelling) and phytoplankton deplete available nutrients 
(Thomas and Strub, 2001). Episodic intrusions of offshore, nutrient 
depleted water and offshore movement of nutrient-rich water occur 
throughout the year. The characteristics of coastal upwelling vary over 
the extent of the California Current, with upwelling north of Cape 
Blanco (~42.8[deg] N.) confined to a narrower band than upwelling 
farther south (Huyer, 1983;

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Brodeur et al., 2004). Seasonally, upwelling begins earlier and lasts 
longer in the southern California Current. The peak time of sea turtle 
sightings (July-September) in neritic waters corresponds to the period 
when intermittent relaxation of upwelling causes sea surface 
temperatures to increase to their warmest annual levels. During these 
relaxation events, there is less mixing of nutrient rich upwelled 
waters and greater retention of these waters near the coast.
    Eddy and frontal features are also critical elements of regional 
productivity. The interaction of the California Current and topographic 
features, such as banks, canyons, and other submerged features, as well 
as shoreline features, such as Cape Blanco, result in the formation of 
eddies, jets, and squirts (Barth et al., 2000). The most prominent 
regional eddy is the Juan de Fuca Eddy, which develops offshore of 
northern Washington at the mouth of the Strait of Juan de Fuca as a 
result of wind-driven current interaction with the continental slope 
(Hickey and Banas, 2003). The eddy is persistent from the spring 
through the fall and delivers nutrient-rich waters to the surface 
(Freeland and Denman, 1982; Hickey and Banas, 2003). Where eddy 
features interact with coastal waters, oceanic fronts are often found. 
Off Oregon and Washington, these frontal features tend to reoccur in 
the same places, such as near Cape Blanco in Oregon or off Vancouver 
Island and the coast of Washington (Freeland and Denman, 1982).
    Leatherbacks are often described as a pelagic species; however, it 
is becoming increasingly evident that they aggregate in productive 
coastal areas to forage on preferred jellyfish prey (scyphomedusae) 
(Houghton et al., 2006; Benson et al., 2007b; Witt et al., 2007). While 
their range spans the entire Pacific, occupation of the California 
Current is highly seasonal. Most of our current knowledge of 
leatherback turtle use of the California Current comes from recent and 
ongoing telemetry studies, aerial surveys, and ship-based research 
conducted primarily in the nearshore areas off central California. The 
telemetry work has documented trans-Pacific migrations between the 
western tropical Pacific and the California Current; however, it is 
difficult to define specific migratory corridors.
    There is likely an important temporal component to the arrival and 
departure of leatherbacks to and from key nearshore foraging areas. 
Current research has shown that leatherbacks clearly target the dense 
aggregations of brown sea nettle (Chrysaora fuscescens) that occur near 
the central California coast and north through Washington during summer 
and fall (Peterson et al., 2006; Harvey et al., 2006; Benson et al., 
2006; 2008). Leatherbacks have also been observed foraging on other 
scyphomedusae in this area, particularly moon jellies (Aurelia labiata) 
(Eisenberg and Frazier, 1983; S. Benson, NMFS, September 2007, pers. 
comm.). The CHRT hypothesized that leatherbacks are primarily 
transiting through offshore areas to get to these dense nearshore 
aggregations of scyphomedusae, and that the boundary between primary 
coastal foraging habitat and the offshore areas may vary seasonally and 
inter-annually with changing oceanographic conditions. In some years, 
the primary foraging habitat may be poor, or oceanographic features may 
deter migration into the nearshore habitat (Benson et al., 2007c), 
resulting in a more diffuse or offshore leatherback distribution.
    Although jellyfish blooms are seasonally and regionally 
predictable, their fine-scale local distribution is patchy and 
dependent upon oceanographic conditions. Some descriptive studies have 
been conducted on the distribution of scyphomedusae along the west 
coast of North America; however, much more information is needed to 
characterize the temporal variability from seasonal patterns to long-
term climate-linked variations. Moreover, it is ultimately the benthic 
polyp stages that contribute to seasonal and annual population 
variation of the adult medusae, and little information exists on their 
populations in open coastal systems, including the California Current 
upwelling system (W.M. Graham, University of South Alabama, September 
2009, pers. comm.). Graham et al. (2001) found that jellyfish tend to 
collect along boundaries: mesoscale oceanic fronts, local circulation 
patterns, thermoclines, haloclines, etc., and that scyphomedusae 
(specifically C. fuscescens) are closely linked to the physical 
structure of the water column and the dynamics of upwelling-related 
circulations. An important example is the Columbia River plume which 
can act to aggregate and retain jellyfish in the northern California 
Current (Shenker, 1984). These hydrographic features can be persistent 
or recurrent (seasonally) in space and time (Castelao et al., 2006).
    Prey concentrating forces may also be fixed in space and time 
associated with geomorphologic features (e.g. headlands, capes, 
seamounts, and canyons). Upwelling shadows (e.g. north Monterey Bay) 
are areas of sustained high productivity (Graham and Largier, 1997) and 
these areas are favorable for leatherback prey (Graham, 1994; Benson et 
al., 2007b). Features such as the Monterey Bay upwelling shadow often 
persist longer than other coastal fronts of similar length scale 
(Graham, 1993). C. fuscescens are highly abundant north of Cape Blanco 
off the Oregon Coast (Suchman and Brodeur, 2005; Reese, 2005) where 
leatherback occurrence has been documented from sighting records and 
telemetry studies (Bowlby, 1994; Benson et al., 2007a; 2007c). Reese 
(2005) found that A. labiata was frequently abundant south of Cape 
Blanco, off the coast of Crescent City, CA (~42[deg] N). Reese (2005) 
also described areas of persistent jellyfish abundance north and south 
of Cape Blanco and farther north along the Oregon coast inshore of 
Heceta Bank (~44[deg] N), all inshore of the 100m isobath line. The 
abundance of jellyfish close to shore may be enhanced by their need for 
substrate during the benthic stage of their lifecycle (Suchman and 
Brodeur, 2005). Jellyfish are largest and most abundant in coastal 
waters of California, Oregon, and Washington during late summer-early 
fall months (Shenker, 1984; Suchman and Brodeur, 2005; Graham, 2009), 
which overlaps with the time when turtles are most frequently sighted 
near Monterey Bay (Starbird, 1993; Benson et al., 2007b) and in Oregon 
and Washington waters (Bowlby, 1994).
    There is evidence that prey-concentrating hydrographic features can 
be influenced by El Nino and other climate forcing. Survey data has 
shown a poleward and offshore re-distribution of C. fuscescens during 
El Nino events (Lenarz et al., 1995). However, it is likely that the 
reliable availability of prey associated with fixed or recurrent 
physical features is the reason for the leatherbacks trans-Pacific 
migration from Western Pacific nesting beaches and their presence in 
neritic west coast waters during summer and fall.
    Jellyfish, and to a lesser extent tunicates (pyrosomas and salps), 
have a low nutritive value per unit biomass, although the nutritional 
value of the entire organism can be quite high in the case of large 
scyphomedusae (Doyle et al., 2007). Davenport and Balazs (1991) debated 
the hypothesis that the source of nutrients for leatherbacks may be 
from the stomach contents of the prey, rather than from the medusae and 
tunicates themselves. Leatherbacks consuming C. fuscescens might also 
ingest additional prey items found in the stomach contents of this 
jellyfish (Suchman et al., 2008). Regardless, leatherbacks must eat a 
massive amount of jellyfish per day, approximately 20-

[[Page 324]]

30 percent of their body weight compared to cheloniids, which eat 
approximately 2-3 percent of their body weight (Davenport and Balazs, 
1991). It has been estimated that an adult leatherback would need to 
eat about 50 large jellyfish (equivalent to approximately 200 liters) 
per day to maintain its nutritional needs (Bjorndal, 1997). 
Leatherbacks have been observed at or near the surface consuming C. 
fuscescens within upwelling shadows or oceanographic retention areas 
within neritic waters off central California (Benson et al., 2003; 
2007b); however, satellite-linked time-depth recorders suggest foraging 
can also occur at deeper offshore waters of the U.S. West Coast (S. 
Benson, NMFS, February 2006, pers. comm.). Leatherbacks likely select 
C. fuscescens as prey over other scyphomedusae species in neritic 
central California waters because C. fuscescens is larger and more 
nutritionally beneficial than other available scyphomedusae species 
(Graham, 2009). The CHRT considered areas as primary foraging habitat 
if they contain great densities of C. fuscescens; secondary foraging 
habitat if they contain A. labiata and some scattered C. fuscescens; 
and tertiary foraging habitat if they contain only scattered A. 
labiata.
    Although leatherbacks are capable of deep diving (Lutcavage and 
Lutz, 1997; Hays et al., 2004), the majority of their time is spent at 
or near the surface. Depth profiles developed for four leatherbacks 
tagged and tracked from Monterey Bay in 2000 and 2001 (using satellite-
linked dive recorders) showed that most dives were to depths of less 
than 100 meters and leatherbacks spent most of their time shallower 
than 80 meters. Dutton (NMFS, January 2004, pers. comm.) estimated that 
leatherbacks spend 75-90 percent of their time at depths of less than 
80 meters based on preliminary data analysis. Within neritic central 
California waters, leatherbacks spend approximately 50 percent of their 
time at or within one meter of the surface while foraging and over 75 
percent of their time within the upper five meters of the water column 
(Benson et al., 2007b). Leatherback turtles also appear to spend almost 
the entire dive time traveling to and from maximum depth, suggesting 
that efficient transit of the water column is of paramount importance 
(Eckert et al., 1989b). Leatherbacks have been observed periodically 
resting on the surface, presumably to replenish oxygen stores after 
repeated dives (Harvey et al., 2006; Benson et al., 2007b).

Primary Constituent Elements (PCEs)

    Based on the aforementioned information, the CHRT identified two 
PCEs essential for the conservation of leatherbacks in marine waters 
off the U.S. West Coast: (1) Occurrence of prey species, primarily 
scyphomedusae of the order Semaeostomeae (Chrysaora, Aurelia, 
Phacellophora, and Cyanea) of sufficient condition, distribution, 
diversity, and abundance to support individual as well as population 
growth, reproduction, and development; (2) Migratory pathway conditions 
to allow for safe and timely passage and access to/from/within high use 
foraging areas.
    When evaluating the second identified PCE, migratory pathway 
conditions or passage, the CHRT considered the type of activities that 
could affect or impede the passage of a leatherback turtle. After 
reviewing several potential types of impediments, the CHRT determined 
that only permanent or long-term structures that alter the habitat 
would be considered as having potential effects on passage. Given this 
determination, the CHRT did not consider fishing gear or vessel traffic 
as potential threats to passage.
    The CHRT considered a third PCE--water quality to support normal 
growth, development, viability, and health. This PCE would encompass 
bioaccumulation of contaminants and pollutants in prey and subsequent 
accumulation in leatherbacks as well as direct ingestion and contact 
with contaminants and pollutants. The CHRT eliminated this option 
because knowledge on how water quality affects scyphomedusae was 
lacking, and, where data were available, the CHRT believed prey 
condition, distribution, diversity, and abundance would encompass water 
quality considerations regarding bioaccumulation. The CHRT also felt 
that direct ingestion and contact with contaminants and pollutants 
would be encompassed in a direct effects analysis for the listed 
species. We encourage public comment on the exclusion of water quality 
as a PCE (see ADDRESSES).

Geographical Area Occupied and Specific Areas

    One of the first steps in the critical habitat revision process was 
to define the geographical area occupied by the species at the time of 
listing. As described above, leatherbacks are distributed 
circumglobally throughout the oceans of the world, and along the U.S. 
West Coast (including the petitioned area) within the U.S. EEZ. The 
CHRT reviewed a variety of data sources to identify specific areas 
within and adjacent to the petitioned area that contain one or more PCE 
requiring special management considerations or protection. 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.
    The CHRT recognized that leatherback habitat use appears to vary 
seasonally and spatially. The boundaries chosen to define each specific 
area represent the CHRT's best estimate of where these turtles 
transition from foraging to migrating or where prey composition or 
abundances change. Most leatherback sightings occur in marine waters 
within the neritic zone. The species may pursue prey as far as the 
extent of mean lower low water (S. Benson, NMFS, September 2000, 
unpublished) so the CHRT considered this as the shoreward extent of 
distribution in those specific areas with documented nearshore 
distribution.
    The following paragraphs describe each specific area (shown on 
Figure 1) and summarize the data used to determine that each area is 
occupied by leatherbacks:
    Area 1: Nearshore area from Point Arena (peninsula where the Point 
Arena Lighthouse is located) to Point Sur California and offshore to 
the 200 meter isobath. The specific boundaries are the area bounded by 
Point Sur (36[deg]18'22'' N./121[deg]54'9'' W.) then north along the 
shoreline following the line of mean lower low water to Point Arena, 
California (38[deg]57'14'' N./123[deg]44'26'' W.) then west to 
38[deg]57'14'' N./123[deg]56'44'' W. then south along the 200 meter 
isobath

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to 36[deg]18'22'' N./122[deg]4'13'' W. then east to the point of origin 
at Point Sur. Leatherback presence is based on aerial surveys, 
shipboard sightings, and telemetry studies. This area is a principal 
California foraging area (Benson et al., 2007b) with high densities of 
primary prey species C. fuscescens occurring here seasonally from April 
to November (Graham, 1994).
    Area 2: Nearshore area from Cape Flattery, Washington, to Umpqua 
River (Winchester Bay), Oregon and offshore to a line approximating the 
2000 meter isobath. The specific boundaries are the area bounded by 
Winchester Bay, Oregon (at the tip of the south jetty) north along the 
shoreline following the line of mean lower low water to Cape Flattery, 
Washington (48[deg]23'10'' N./124[deg]43'32'' W.) then north to the 
U.S./Canada boundary at 48[deg]29'38'' N./124[deg]43'32'' W. then west 
and south along the line of the U.S. EEZ to 47[deg]57'38'' N./
126[deg]22'54'' W. then south along a line approximating the 2,000 
meter isobath that passes through points at 47[deg]39'55'' N./
126[deg]13'28'' W., 45[deg]20'16'' N./125[deg]21' W. to 43[deg]40'8'' 
N./125[deg]17' W. then east to the point of origin at Winchester Bay. 
Leatherback presence is based on aerial surveys, shipboard surveys, 
fishery interaction data, and telemetry studies. This area is the 
principal Oregon/Washington foraging area and includes important 
habitat associated with Heceta Bank, Oregon. The greatest densities of 
a primary prey species C. fuscescens occur north of Cape Blanco, Oregon 
and in shallow inner shelf waters (Suchman and Brodeur, 2005).
    Area 3: Nearshore area south of Area 2 from Umpqua River 
(Winchester Bay), Oregon, to Point Arena, California, shoreward of a 
line approximating the 2000 meter isobath. This line runs from 
43[deg]40' N./125[deg]17' W. through 43[deg]24'10'' N./125[deg]16' W., 
42[deg]39'3'' N./125[deg]7'37'' W., 42[deg]24'49'' N./125[deg]0'13'' 
W., 42[deg]3'17'' N./125[deg]9'51'' W., 40[deg]49'38'' N./
124[deg]49'29'' W., 40[deg]23'33'' N./124[deg]46'32'' W., to 
38[deg]57'14'' N./123[deg]56'44'' W. then east to Point Arena. 
Leatherback presence is based on aerial survey data. This area includes 
major upwelling centers between Cape Blanco, Oregon and Cape Mendocino, 
California and is characterized by cold sea surface temperatures 
(<13[deg] C) and great densities of the prey species A. labiata. 
Although leatherback use is limited, this area could experience greater 
use during warm water episodes such as an El Nino event.
    Area 4: Offshore area west and adjacent to Area 2 (see above). 
Includes waters west to a line from 47[deg]57'38'' N./126[deg]22'54'' 
W. southwest to 43[deg]40'8'' N./129[deg]1'30'' W. Leatherback presence 
is based on aerial surveys. This area is used primarily as a region of 
passage to/from Areas 2 and 5 (see below) although prey species are 
present and it is used as a secondary foraging area. This area contains 
large numbers of A. labiata and some C. fuscescens, with greater 
densities of C. fuscescens found east of Area 4 in Area 2.
    Area 5: Offshore area south and adjacent to Area 4 and west and 
adjacent to the northern portion of Area 3 (see above). This area 
includes all waters north of a line consistent with the California/
Oregon border and west to the boundary of the U.S. EEZ. Leatherback 
presence is based on aerial surveys, telemetry studies, and fishery 
interaction data. This area includes prey species within primary 
offshore foraging habitat and passage to Areas 2, 3 and 4 (see above).
    Area 6: Offshore area south and adjacent to Area 5 and west and 
adjacent to the southern portion of Area 3 (see above) offshore to a 
line connecting 42[deg] N./129[deg] W. and 38[deg]57'14'' N./
126[deg]22'55'' W. Leatherback presence is based on aerial surveys, 
telemetry studies, and fishery interaction data. This area includes 
prey species within secondary foraging habitat west of Cape Mendocino 
and passage between Area 5 (see above) and Area 7 (see below).
    Area 7: Nearshore area from Point Arena, California, to Point 
Vicente, California (35[deg]44'30'' N./118[deg]24'44'' W.), exclusive 
of Area 1 (see above) and offshore to a line connecting 38[deg]57'14'' 
N./126[deg]22'55'' W. and 33[deg]44'30'' N./121[deg]53'41'' W. This 
area includes waters surrounding the northern Santa Barbara Channel 
Islands (San Miguel, Santa Rosa, Santa Cruz, and Anacapa Islands). 
Leatherback presence is based on aerial surveys, telemetry studies, and 
fishery interaction data. This area includes prey species within 
secondary foraging areas characterized by ocean frontal zones west of 
the continental shelf that are occupied by aggregations of A. labiata 
and lower densities of C. fuscescens. The frontal zones are created by 
a series of quasi-permanent, retentive eddies or meanders, associated 
with offshore-flowing squirts and jets anchored at coastal promontories 
between Point Reyes and Point Sur, which create linkages between 
nearshore waters of Area 1 and offshore waters of the California 
Current. Telemetry data indicate that this area is commonly utilized by 
leatherbacks, particularly when jellyfish availability in Area 1 is 
poor. This area also provides passage to/from foraging habitat in Areas 
1, 5, and 6 (see above), often through the northern Santa Barbara 
Channel Islands during the spring and early summer months.
    Area 8: Extreme offshore area west and adjacent to Areas 6 and 7 
from the California/Oregon border then south of Area 7, including areas 
closer to the coast, along the U.S. EEZ to the U.S./Mexico border. The 
western and southern borders of Area 8 are the U.S. EEZ. This area 
includes waters surrounding the southern Santa Barbara Channel Islands 
(San Nicholas, Santa Barbara, Catalina, and San Clemente Islands). 
Leatherback presence is based on aerial surveys, telemetry studies, and 
fishery interaction data. This area includes prey species within 
tertiary foraging habitat characterized by warm, low salinity offshore 
waters and passage to/from foraging habitat in Areas 1, 5, 6, and 7 
(see above).
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TP05JA10.012

BILLING CODE 3510-22-C

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA authorizes designation of ``specific 
areas outside the geographical areas occupied by the species at the 
time it is listed'' if those areas are determined to be essential to 
the conservation of the species. Joint NMFS and USFWS regulations (50 
CFR 424.12(e)) emphasize that the agency shall designate as critical 
habitat areas outside the geographical area presently occupied by a 
species only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species. At the present 
time we have not identified additional specific areas outside the 
geographic area occupied by leatherbacks that may be essential for the 
conservation of the species.

Special Management Considerations or Protections

    An occupied area may be designated as critical habitat if it 
contains physical and biological features 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.'' The CHRT 
identified a number of activities that may threaten the identified 
PCEs, as impacts to the PCEs also impact the physical and biological 
features. The CHRT grouped these activities into eight

[[Page 327]]

activity types: Pollution from point sources (e.g. National Pollution 
Discharge Elimination System (NPDES)); runoff from agricultural 
pesticide use; oil spills; power plants; aquaculture; desalination 
plants; tidal energy or wave energy projects; and liquid natural gas 
(LNG) projects. All of these activities have the potential to affect 
the PCEs by altering prey abundance, prey contamination levels, and 
free passage between and within specific areas (Table 1). Some of these 
activities may also have the potential to impact PCEs positively (e.g. 
infrastructure for aquaculture may provide substrate and habitat for 
the benthic polyp stages of medusae).
    The CHRT initially considered impacts to PCE's from potential 
offshore wind energy projects, but due to lack of data and uncertainty 
regarding the potential for offshore wind energy projects off the U.S. 
West Coast, they did not have enough information to fully evaluate 
costs and effects of wind projects alongside the analysis on tidal 
energy and wave energy projects. Therefore, the CHRT recommended that 
we exclude wind energy from this analysis and solicit public comment on 
this issue (see ADDRESSES).
    The CHRT also considered impacts to PCE's from commercial fishing 
activities, but ultimately determined that commercial fisheries would 
not impact PCE's. When considering the prey PCE, the CHRT looked at 
potential fisheries that would target jellyfish, but no such fishery 
was anticipated, within the evaluated areas, in the foreseeable future. 
The bycatch of jellyfish in existing commercial fisheries was also 
considered, but it was determined that the level of bycatch was 
limited. When considering impacts to the passage PCE, the team 
considered whether fishing gear could be considered an impediment to 
the passage of leatherbacks to and from their foraging areas, and if 
the presence of that gear altered the habitat. It was determined that 
only permanent or long-term structures would be considered for their 
potential to affect habitat and the passage PCE. Additionally, the 
direct take of the species in fishing gear is more appropriately 
considered under the jeopardy standard in ESA section 7 consultations. 
Therefore, the CHRT recommended that we exclude commercial fishing 
activities from our analysis and solicit public comment on this issue 
(see ADDRESSES).
    The CHRT also considered ocean acidification (and myriad 
contributing activities) as possibly affecting the prey PCE. The Class 
Scyphozoa, which includes C. fuscescens and A. labiata, has calcium 
sulfate hemihydrate statoliths, which may be affected by acidification. 
Winans and Purcell (in review) found no pH effect on production of new 
medusae (ephyrae); statoliths were not decreased in number, but were 
smaller in low pH. Iglesias-Rodriquez et al. (2008) found increases in 
biogenic calcification in phytoplankton with increased CO2 
using methods they argued were more realistic than those used in 
previous studies that showed decreased calcification with increasing 
PCO2. Attrill et al. (2007) suggested that lower pH in parts 
of the North Sea opened an ecological niche leading to an increase in 
jellyfish abundance. Yet, Richardson and Gibbons (2008) repeated and 
expanded the work of Attrill et al. (2007) and found no correlation 
between ocean acidification and scyphomedusae abundance. Given 
equivocal or sparse data, the CHRT recommended that we exclude ocean 
acidification and the contributing activities from our analysis and 
solicit public comment on this issue (see ADDRESSES).

  Table 1--Summary of Occupied Specific Areas, Surface Area Covered, the PCEs Present, and Activities That May
   Affect the PCEs Within Each Area Such That Special Management Considerations or Protection May Be Required
----------------------------------------------------------------------------------------------------------------
           Specific area               Est. area (sq. mi)        PCE(s) present               Activities
----------------------------------------------------------------------------------------------------------------
Area 1.............................  4,700 (12,173 sq. km).  Prey, Passage.........  Prey--point pollution,
                                                                                      pesticides, oil spills,
                                                                                      power plants, desalination
                                                                                      plants, tidal wave/energy
                                                                                      projects, aquaculture.
                                                                                     Passage--oil spills, tidal
                                                                                      wave/energy projects,
                                                                                      aquaculture.
Area 2.............................  24,500 (63,455 sq. km)  Prey, Passage.........  Prey--point pollution,
                                                                                      pesticides, oil spills.
                                                                                     Passage--oil spills.
Area 3.............................  11,600 (30,044 sq. km)  Prey, Passage.........  Prey--point pollution,
                                                                                      pesticides, oil spills,
                                                                                      tidal wave/energy
                                                                                      projects, LNG.
                                                                                     Passage--oil spills, tidal
                                                                                      wave/energy projects.
Area 4.............................  30,000 (77,700 sq. km)  Prey, Passage.........  Prey--oil spills.
                                                                                     Passage--oil spills.
Area 5.............................  24,500 (63,455 sq. km)  Prey, Passage.........  Prey--oil spills.
                                                                                     Passage--oil spills.
Area 6.............................  34,200 (88,578 sq. km)  Prey, Passage.........  Prey--oil spills.
                                                                                     Passage--oil spills.
Area 7.............................  46,100 (119,398 sq.     Prey, Passage.........  Prey--point pollution,
                                      km).                                            pesticides, oil spills,
                                                                                      power plants, desalination
                                                                                      plants, tidal wave/energy
                                                                                      projects, LNG,
                                                                                      aquaculture.
                                                                                     Passage--oil spills, tidal
                                                                                      wave/energy projects,
                                                                                      aquaculture.
Area 8.............................  117,000 (303,030 sq.    Prey, Passage.........  Prey-- oil spills, LNG,
                                      km).                                            aquaculture.
                                                                                     Passage--oil spills,
                                                                                      aquaculture.
----------------------------------------------------------------------------------------------------------------

Military Areas Ineligible for Designation

    Recent amendments to the ESA preclude the Secretary from 
designating military lands as critical habitat if those lands are 
subject to an Integrated Natural Resource Management Plan (INRMP) under 
the Sikes Act and the Secretary certifies in writing that the plan 
benefits the listed species (Section 4(a)(3), Pub. L. 108-136). We are 
not aware of any INRMPs in the areas under

[[Page 328]]

consideration for designation as critical habitat.

ESA Section 4(b)(2) Analysis

    Section 4(b)(2) of the ESA requires us to use the best scientific 
information available in designating critical habitat. It also requires 
that before we designate any ``particular areas,'' we must consider the 
economic impacts, impacts on national security, and any other relevant 
impacts. The ESA does not define what ``particular areas'' 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. As there was no biological basis to further subdivide the 
eight ``specific areas'' identified within the occupied geographical 
area into smaller units, we treated these areas as the ``particular 
areas'' for our initial consideration of impacts of designation. Once 
impacts are determined, we decide whether to consider exercising 
discretion to exclude any areas. If we consider exercising such 
discretion, we are to weigh the benefits of excluding any particular 
area (avoiding the economic, national security or other costs) against 
the benefits of designating it (the conservation benefits to the 
species). If we conclude that the benefits of exclusion in any 
particular area outweigh the benefits of designation, we have 
discretion to exclude areas, so long as exclusion will not result in 
extinction of the species. We determined to proceed with evaluating the 
benefits of designation.

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7 of the ESA, requiring all Federal agencies to ensure their 
actions are not likely to destroy or adversely modify 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 the species. The designation of critical habitat also provides other 
benefits such as improved education and outreach by informing the 
public about areas and features important to species conservation.
    For the purposes of conducting the 4(b)(2) analysis, it was not 
possible to directly compare the benefits to the costs of designation. 
For a direct comparison, the benefits would need to be monetized, but 
we are unaware of available data that would allow us to monetize the 
benefits expected from ESA section 7 consultations, education, and 
outreach for the considered areas. As an alternative approach, we used 
the overall conservation value ratings that were calculated for each 
area by the CHRT to represent the qualitative conservation benefit of 
designation.
    In evaluating the conservation value of each specific area, the 
CHRT assessed how leatherbacks use each area, the frequency and 
duration of that use, and the quality and quantity of prey species 
within each area. After reviewing the best available information, the 
CHRT determined that the eight specific areas varied in terms of 
potential conservation value for leatherback turtles. The CHRT used 
professional judgment to assign a relative biological importance score 
of 1, 2, or 3 (3 representing the highest importance) to each area for 
each of our two identified PCEs. Scores were then summed and used to 
assign an overall conservation rating of ``Very Low'', ``Low'', 
``Medium'', or ``High'' for each specific area. Summed numeric 
equivalents for each conservation rating were: Very Low = 3 or less; 
Low = 4; Medium = 5; High = 6. The scoring criteria, parameter scores, 
and overall conservation rating for each specific area are summarized 
in Table 2.

   Table 2--Summary of Presence (Yes/No) of Primary Constituent Elements and the Resultant Conservation Value
                           Ratings for Specific Areas Occupied by Leatherback Turtles
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                   PCE Condition & Frequency
                                 1 = Preferred prey rare or absent and passage conditions to/
                                   from/within high use foraging areas needed infrequently or
                                                         inconsistently
         Specific area            2 = Preferred prey present but not consistently abundant or  Overall
                                   not well distributed and passage conditions to/from/within   conservation
                                     high use foraging areas are needed more frequently and     rating
                                                          consistently
                                       3 = Preferred prey consistently abundant and well
                                   distributed and passage conditions to/from/within high use
                                       foraging areas needed frequently and consistently
                                --------------------------------------------------------------------------------
                                 Prey..............      Value  Passage...........      Value  Total
----------------------------------------------------------------------------------------------------------------
Area 1.........................  Yes...............          3  Yes...............          3  High.
Area 2.........................  Yes...............          3  Yes...............          3  High.
Area 3.........................  Yes...............          2  Yes...............          1  Very Low.
Area 4.........................  Yes...............          2  Yes...............          3  Medium.
Area 5.........................  Yes...............          2  Yes...............          3  Medium.
Area 6.........................  Yes...............          1  Yes...............          3  Low.
Area 7.........................  Yes...............          2  Yes...............          3  Medium.
Area 8.........................  Yes...............          1  Yes...............          3  Low.
----------------------------------------------------------------------------------------------------------------

Economic Benefits of Exclusion

    To determine the economic benefits of excluding particular areas 
from designation, we estimated the potential cost of designation 
associated with each area. To do this we first accounted for the 
baseline level of protection afforded to leatherbacks based on existing 
Federal and state regulations. When calculating baseline cost 
estimates, the CHRT heavily relied on information from the draft 
economic reports supporting critical habitat designations for the 
southern resident killer whale (Industrial Economics Incorporated, 
2006), green sturgeon (Industrial Economics Incorporated, 2008), and 
the final economic report for salmon and steelhead (NMFS, 2005). The 
level of future activities was developed using GIS data and other 
published data on existing, pending, or future actions (e.g. Federal 
Energy Regulatory Commission (FERC) permit license data for LNG 
projects).
    In areas where listed species coexist with leatherbacks 
(particularly green sturgeon), a portion of affected future activities 
modifications (and associated costs) are expected to occur regardless 
of leatherback critical habitat designation. Thus, after estimating the 
number of projects that may potentially

[[Page 329]]

require modifications, the CHRT applied an ``incremental score'' to 
more accurately represent the portion of the projects that would be 
affected solely by leatherback critical habitat designation. For 
activities that occur in areas with more existing protections (e.g. 
areas with Marine Sanctuaries or overlapping critical habitat with 
other listed species), the CHRT estimated that 30 percent of costs 
would be attributable to designated leatherback critical habitat. For 
activities that occur in areas with fewer existing protections (e.g. 
areas with other listed species), the CHRT estimated that 50 percent of