Endangered and Threatened Species: Final Rule To Revise the Critical Habitat Designation for the Endangered Leatherback Sea Turtle, 4170-4201 [2012-995]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Rules and Regulations]
[Pages 4170-4201]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-995]



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Vol. 77

Thursday,

No. 17

January 26, 2012

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 226





Endangered and Threatened Species: Final Rule To Revise the Critical 
Habitat Designation for the Endangered Leatherback Sea Turtle; Final 
Rule

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

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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.

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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 https://www.nmfs.noaa.gov/pr/species/turtles/leatherback.htm#documents, or at 
the Federal eRulemaking Portal https://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[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 (>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 long-distance 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 July-August (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[deg]57'14'' 
N./126[deg]22'55'' W. and 33[deg]44'30'' N./121[deg]53'41'' W.
    Response: As stated above, based on this and other comments related 
to the usage and boundaries of Area 7, we re-evaluated 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 Ni[ntilde]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 re-
evaluated 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

[[Page 4175]]

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-to-government 
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 treaty-secured 
fishing rights, and little impact to tribal sovereignty and self-
governance.
    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

[[Page 4176]]

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 re-evaluated 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,

[[Page 4177]]

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, skeleton-forming 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 ``cost-
effectiveness'' 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 time-consuming, 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

[[Page 4178]]

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 land-based 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