Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Northwest Atlantic Ocean Distinct Population Segment of the Loggerhead Sea Turtle

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2012-0103; 4500030114]

RIN 1018-AY71

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Northwest Atlantic Ocean Distinct Population Segment of the Loggerhead Sea Turtle

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, designate specific areas in the terrestrial environment of the U.S. Atlantic and Gulf of Mexico coasts as critical habitat for the Northwest Atlantic Ocean distinct population segment of the loggerhead sea turtle (

Caretta caretta

) under the Endangered Species Act of 1973, as amended. In total, approximately 1,102 kilometers (685 miles) fall within the boundaries of the critical habitat designation.

DATES:

This rule is effective on August 11, 2014.

ADDRESSES:

This final rule and the associated final economic analysis are available on the Internet at

http://www.regulations.gov

and

http://www.fws.gov/northflorida.

Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at

http://www.regulations.gov.

All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, North Florida Ecological Services Office (see

FOR FURTHER INFORMATION CONTACT

).

The coordinates, plot points, or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at

http://www.fws.gov/northflorida,

at

http://www.regulations.gov

at Docket No. FWS-R4-ES-2012-0103, and at the North Florida Ecological Services Office (see

FOR FURTHER INFORMATION CONTACT

). Any additional tools or supporting information that we developed for this critical habitat designation will also be available at the Fish and Wildlife Service Web site and Field Office listed above, and may also be included in the preamble of this rule and at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

For general information about this rule, and information about the final designation in northeastern Florida, contact Jay B. Herrington, Field Supervisor, U.S. Fish and Wildlife Service, North Florida Ecological Services Office, 7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256; telephone 904-731-3336; facsimile 904-731-3045. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

For information about the final designation in Alabama, contact Bill Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office, 1208 Main Street, Daphne, AL 36526; telephone 251-441-5181; facsimile 251-441-6222.

For information about the final designation in southern Florida, contact Craig Aubrey, Field Supervisor, U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office, 1339 20th Street, Vero Beach, FL 32960; telephone 772-469-4309; facsimile 772-562-4288.

For information about the final designation in northwestern Florida, contact Catherine Philips, Acting Field Supervisor, U.S. Fish and Wildlife Service, Panama City Ecological Services Field Office, 1601 Balboa Avenue, Panama City, FL 32405; telephone 850-769-0552; facsimile 850-763-2177.

For information about the final designation in Georgia, contact Don Imm, Field Supervisor, U.S. Fish and Wildlife Service, Coastal Georgia Ecological Services Field Office, 4980 Wildlife Drive NE., Townsend, GA 31331; telephone 912-832-8739; facsimile 912-832-8744.

For information about the final designation in Mississippi, contact Stephen Ricks, Field Supervisor, U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office, 6578 Dogwood View Parkway, Suite A, Jackson, MS 39123; telephone 601-965-4900; facsimile 601-965-4340.

For information about the final designation in North Carolina, contact Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office, Post Office Box 33726, Raleigh, NC 33726; telephone 919-856-4520; facsimile 919-856-4556.

For information about the final designation in South Carolina, contact Thomas McCoy, Acting Field Supervisor, U.S. Fish and Wildlife Service, South Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 200, Charleston, SC 29407; telephone 843-727-4707; facsimile 843-727-4218.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.

Under the Endangered Species Act (Act), when we determine that a species is endangered or threatened, we are required to designate critical habitat, to the maximum extent prudent and determinable. Designations of critical habitat can only be completed by issuing a rule. The U.S. Fish and Wildlife Service (USFWS or Service) and the National Marine Fisheries Service (NMFS) listed the Northwest Atlantic Ocean distinct population segment (DPS) of the loggerhead sea turtle as threatened on September 22, 2011 (76 FR 58868). The USFWS and NMFS share jurisdiction under the Act for the protection and conservation of sea turtles, including the loggerhead. USFWS has jurisdiction over sea turtles on the land; NMFS has jurisdiction over sea turtles in the water.

This rule consists of:

A final rule designating areas in the terrestrial environment as critical habitat for the Northwest Atlantic Ocean DPS of the loggerhead sea turtle. NMFS will be designating areas in the marine environment as critical habitat for the DPS and, consistent with their distinct authority with respect to such areas, will designate such areas in a separate rulemaking. In this rule, “critical habitat” refers to the areas we are designating in the DPS's terrestrial environment unless otherwise specified.

The areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Northwest Atlantic Ocean DPS of the loggerhead sea turtle. We are designating:

• In total, approximately 1,102 kilometers (km) (685 miles (mi)) of loggerhead sea turtle nesting beaches as critical habitat in the States of North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi. These beaches account for 45 percent of an estimated 2,464 km (1,531 mi) of coastal beach shoreline and approximately 84 percent of the documented nesting (numbers of nests) within these six States. The critical habitat is located in Brunswick, Carteret, New Hanover, Onslow, and Pender Counties, North Carolina; Beaufort, Charleston, Colleton, and Georgetown Counties, South Carolina; Camden, Chatham, Liberty, and

McIntosh Counties, Georgia; Bay, Brevard, Broward, Charlotte, Collier, Duval, Escambia, Flagler, Franklin, Gulf, Indian River, Lee, Manatee, Martin, Monroe, Palm Beach, Sarasota, St. Johns, St. Lucie, and Volusia Counties, Florida; Baldwin County, Alabama; and Jackson County, Mississippi.

• We are exempting the following Department of Defense (DOD) installations from critical habitat designation because their integrated natural resources management plans (INRMPs) incorporate measures that provide a benefit for the loggerhead sea turtle: Marine Corps Base Camp Lejeune (Onslow Beach), North Carolina, and Cape Canaveral Air Force Station, Patrick Air Force Base, and Eglin Air Force Base (Cape San Blas), Florida.

• Under section 4(b)(2) of the Act, we are excluding from critical habitat designation areas in St. Johns, Volusia, and Indian River Counties, Florida, that are covered under a habitat conservation plan (HCP), because the Secretary finds that the benefits of excluding these areas outweigh the benefits of including them in the critical habitat designation.

• We are not excluding any additional areas from critical habitat based on economic, national security, or other relevant impacts.

We have prepared an economic analysis of the designation of critical habitat.

In order to consider economic impacts under 4(b)(2) of the Act, we prepared an economic analysis of the critical habitat designations and related factors. We announced the availability of the draft economic analysis (DEA) in the

Federal Register

on July 18, 2013 (78 FR 42921), and sought comments from the public. We have incorporated the comments and have completed the final economic analysis (FEA) concurrently with this final determination.

Peer review and public comment.

We sought comments from four independent specialists to ensure that our designation is based on scientifically sound data and analyses. We requested opinions from these four knowledgeable individuals on our technical assumptions, analysis, and whether or not we had used the best available information. We received responses from three of the peer reviewers. These peer reviewers concurred with our methods and conclusions, and provided additional information, clarifications and suggestions to improve this final rule. Information we received from peer review is incorporated in this final designation. We also considered all comments and information received from the public during the two comment periods and three public hearings.

Previous Federal Actions

Please refer to the final rule revising the loggerhead sea turtle's listing from a single worldwide threatened species to nine DPSs, published in the

Federal Register

on September 22, 2011 (76 FR 58868), for a detailed description of previous Federal actions concerning this species and protection under the Act.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the Northwest Atlantic Ocean DPS of the loggerhead sea turtle during two comment periods. The first comment period opened with the publication of the proposed rule on March 25, 2013 (78 FR 17999), and closed on May 24, 2013. The second comment period, during which we requested comments on the proposed critical habitat designation and associated draft economic analysis (DEA), opened on July 18, 2013 (78 FR 42921), and closed on September 16, 2013. We held three public hearings in August 2013: Wilmington, North Carolina; Morehead City, North Carolina; and Charleston, South Carolina. We also contacted appropriate Federal, State, county, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and the DEA during these comment periods.

During the first comment period, we received 19,969 comment letters addressing the proposed critical habitat designation. The majority of these comments were form letters and letters with multiple signatures. During the second comment period, we received 2,206 comment letters addressing the proposed critical habitat designation, the DEA, or both. The majority of these comments were also form letters and letters with multiple signatures. Comments on the proposed critical habitat rule were also submitted to NMFS during the comment period for its proposed designation of critical habitat in the marine environment for the Northwest Atlantic Ocean DPS. During the three public hearings held on August 6, 7, and 8, 2013, 47 individuals or organizations made comments on the proposed designation or DEA. Comments received were grouped into general issues specifically relating to the proposed designation. These and other substantive information are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise that included familiarity with the loggerhead sea turtle and its terrestrial habitat, biological needs, and threats. We received responses from three of the peer reviewers.

We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the proposed designation. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve this final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

(1)

Comment:

One peer reviewer commented on the justification for our proposed exemption of military installations and exclusion of areas with existing habitat conservation plans (HCPs), emphasizing the importance of all areas to the recovery of the species.

Our Response:

The USFWS acknowledges that all nesting beaches support the conservation and recovery of the species. All areas including military installations and areas with existing HCPs were evaluated according to the selection criteria. Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) was amended in 2004 through the National Defense Authorization Act of 2004 (Pub. L. 108-136) to provide that: “The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”

The USFWS analyzed the INRMPs developed by military installations located within the range of the proposed critical habitat designation for the loggerhead sea turtle to determine if they would meet the exemption criteria under section 4(a)(3) of the Act. Marine Corps Base Camp Lejeune, Cape Canaveral Air Force Station, Patrick Air Force Base, and Eglin Air Force Base are DOD lands with completed INRMPs that provide benefits to the loggerhead sea

turtle. Accordingly, we are exempting those areas from the designation.

Regarding areas with existing HCPs, per section 4(b)(2) of the Act the Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute, as well as the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. The USFWS conducted this analysis on the areas with existing HCPs and did decide to exclude three areas covered by HCPs. We provide additional details later in this final rule (see Exclusions section).

(2)

Comment:

One peer reviewer commented on the availability of recent study results, ongoing work, and information on loggerhead sea turtles.

Our Response:

The final rule has been updated as appropriate throughout the document with the new information.

(3)

Comment:

One peer reviewer commented on the difficulty to assess the analysis and assumptions without the specific datasets available in the proposed rule.

Our Response:

As stated in the proposed rule, all supporting documentation, such as the nesting densities used in the critical habitat selection process, were available during the open comment periods for the proposed rule and are currently available for public inspection on

http://www.regulations.gov,

or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, North Florida Ecological Services Office (see

FOR FURTHER INFORMATION CONTACT

).

General Comments Provided by Multiple Commenters

(4)

Comment:

A number of Federal and State agencies, local municipalities, and several other commenters expressed concern about the economic impacts of the critical habitat designation.

Our Response:

As described in Section 2.3.2 of the FEA, it is unlikely that the critical habitat designation will result in additional management efforts resulting from future section 7 consultations with the USFWS. Nesting loggerhead turtles, their nests, eggs, and hatchlings, as well as any of their nesting habitat not designated as critical habitat, are still protected under the Act regardless of whether or not critical habitat is designated. They receive protection via section 7 where they may be the subject of conservation actions and regulatory protection, ensuring Federal agency actions do not jeopardize their continued existence, and via section 9, which prohibits “take” of individuals, including take caused by actions that affect the DPS' habitat. Take can only be authorized through the processes provided in sections 7 and 10 of the Act, and their implementing regulations. In the FEA, we considered whether additional or different conservation measures would be needed to avoid destruction or adverse modification of critical habitat above and beyond those measures already needed to avoid jeopardizing the continued existence of the species, and found this to be unlikely. As a result, the quantified direct incremental impacts of the designation are expected to be limited to additional administrative costs to the USFWS, Federal agencies, and third parties of considering critical habitat as part of future section 7 consultations. These costs are borne by the USFWS, the Federal action agency, and the third-party participants (generally the project proponents), including State and local governments and private parties. In the areas proposed as critical habitat designation, these costs were estimated to total approximately $1,200,000 over the next 10 years ($160,000 annualized).

In addition, the FEA acknowledges that, in some cases, critical habitat may generate indirect impacts including costs associated with project delay due to third-party litigation against the USFWS or the Federal action agency and the increased length of time it will take for the USFWS to review projects. Forecasting the likelihood of third-party litigation and potential length of associated project delays is considered too speculative to be quantified in the FEA. However, delays attributable to the additional time to consider critical habitat as part of future section 7 consultations, if any, would most likely be minor. This is because potential impacts to critical habitat are considered at the same time as impacts to the species.

(5)

Comment:

A number of commenters expressed concern that areas outside of the critical habitat designation will receive less protection.

Our Response:

A critical habitat designation does not signal that habitat outside the designated area is unimportant or may not support the conservation of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, may continue to be the subject of conservation actions implemented under section 7(a)(1) of the Act. Turtles in those areas are subject to the regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and section 9 of the Act's prohibitions on taking any individual of the species, including take caused by actions that affect habitat. Take can be authorized only through the processes provided in sections 7 and 10 of the Act, and their implementing regulations.

Federal Agency Comments

(6)

Comment:

The National Aeronautics and Space Administration (NASA) commented that the proposed rule does not provide additional protection to loggerheads within the limits of the Kennedy Space Center's (KSC) coastline and that KSC meets the exemption criteria since NASA implements comprehensive conservation and habitat management plans that incorporate measures that provide a benefit for the conservation of the loggerheads.

Our Response:

Unlike DOD lands with approved INRMPs, there is no categorical exemption under the Act for areas with other types of habitat management plans.

(7)

Comment:

The U.S. Army Corps of Engineers (USACE) expressed concern that the critical habitat designation will financially impact congressionally authorized projects and associated dredging activities for ports, navigation channels, and coastal storm damage reduction projects. Their concern extends to increased timeframes for consultations.

Our Response:

As described in section 2.3.2 of the FEA, it is unlikely that the critical habitat designation will result in additional management efforts resulting from future section 7 consultations with the USFWS. The USFWS considered whether additional or different conservation measures would be needed to avoid destruction or adverse modification of critical habitat above and beyond those measures needed to avoid jeopardizing the continued existence of the species, and found this to be unlikely. As outlined in our response to Comment (4), designation of critical habitat delays attributable to the additional time to consider critical habitat as part of future section 7 consultations, if any, would most likely be minor. Also, see our response to Comment (4), and the Economic Impacts portion of this rule, below, for a

discussion of indirect impacts associated with critical habitat designation.

(8)

Comment:

The USACE expressed concern that if operation and maintenance dredging projects were determined to adversely modify critical habitat, it could result in substantial economic consequences. The USACE believes that these projects should be identified as “manmade structures” and excluded from critical habitat designation. The USACE's responsibility is to maintain safe and adequate configurations and depths for commercial and recreational navigation, national defense, safety and refuge, and national economic development. “Excluding” these congressionally authorized projects will enable USACE to fulfill is responsibilities efficiently and effectively.

Our Response:

We considered the economic impact, national security impact, and any other relevant impact of designating as critical habitat areas with projects that occur within operation and maintenance areas. In evaluating whether any such areas should be excluded due to economic impacts, we concluded that no change in economic activity levels or the management of economic activities, including dredging projects, is expected to result from the critical habitat designation. A key conclusion of the analysis is that the listing of the DPS may lead to additional conservation efforts that would not have been required otherwise. However, as outlined in our response to Comment (4), designation of critical habitat is not anticipated to generate additional conservation measures for the DPS beyond those generated by the species' listing. Section 7 consultation is required in occupied habitat with or without a critical habitat designation. Most of the forecast costs reflect additional administrative effort as part of future section 7 consultations in order to consider the potential for activities to result in adverse modification of critical habitat. That having been said, we acknowledge it is unlikely additional conservation measures beyond those identified to avoid jeopardy for the DPS would be required to avoid adverse modification.

State Agency Comments

Section 4(i) of the Act states: “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” The designation of critical habitat for the DPS includes beaches in the States of Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina. Comments from the States of North Carolina, South Carolina, Georgia, Florida, and Mississippi regarding the proposal to designate critical habitat for the loggerhead sea turtle are addressed below.

(9)

Comment:

A number of States, State agencies, and municipalities believe that USFWS should undergo a consistency determination under the Coastal Zone Management Act (CZMA; 16 U.S.C. 1451

et seq.

) for the proposed designation of critical habitat in each State that has a CZMA program.

Our Response:

The USFWS has determined that the designation of critical habitat does not require a consistency review under CZMA. Federal agencies are responsible for ensuring that consistency review under CZMA is completed as needed for each action they fund, authorize, or carry out. The designation of critical habitat is not a “Federal agency activity” as defined in the CZMA implementing regulations at 15 CFR 930.31(a), but rather an establishment of Federal agency responsibility related to the conservation of federally protected endangered or threatened species. Thus, the designation is not an agency activity itself, but results in a requirement that Federal agencies ensure that any action they fund, authorize, or carry out is not likely to result in the destruction or adverse modification of designated critical habitat of any endangered or threatened species. Therefore, while we understand the commenters' position, the Service has determined that consistency review is not needed.

(10)

Comment:

The North Carolina Department of Environment and Natural Resources (NCDNER) disagrees with the USFWS' assessment that “designation of critical habitat in areas currently occupied by the loggerhead sea turtle may impose nominal additional regulatory restrictions to those currently in place and, therefore, may have little incremental impact on State and local governments and their activities.” Similarly, while the North Carolina Wildlife Resources Commission (NCWRC) understands there is large uncertainty regarding “special management considerations” or additional protections that may ensue from the critical habitat designation, it expresses concern that such management considerations or protections may have far-reaching consequences that could reduce or restrict the effectiveness of the robust conservation measures already in place and may affect the public's ability to access and use existing public trust resources, including beaches and waterways. These agencies, as well as several other commenters, believe the USFWS should clarify the potential range of additional management efforts, regulatory reviews, and/or operational conditions that may be placed upon those activities listed as “threats” to designated critical habitats.

Our Response:

Section 7(a)(2) of the Act and its implementing regulations at 50 CFR part 402 require Federal agencies to consult with the USFWS to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. Only projects that have a Federal nexus (e.g., projects that are funded, authorized, or carried out by Federal agencies) are subject to this requirement under section 7 consultation. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private land and does not require implementation of restoration, recovery, or enhancement measures by non-Federal parties. Where the States, local communities, or a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7 would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the non-Federal party is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

We identified 12 categories of threats that may require special management considerations or protection in the proposed critical habitat units. Most, if not all, of these threats already undergo special management considerations by Federal action agencies and have done so since the loggerhead sea turtle was initially listed in 1978. There are a number of options for management efforts determined to be necessary and will be considered on a unit by unit basis. Operational conditions can be incorporated into a project description or permit conditions to avoid or minimize these threats. However, the determination of which measure or combination of measures will depend on the site conditions; nature of the proposed action; duration and magnitude of potential impacts from the project; conservation measures already in place; and other site- and action-specific considerations. If additional

measures are determined to be necessary, they will be considered in order to minimize the impacts to the listed DPS and the nesting beach. Critical habitat will not, as noted in our proposed designation, change the consultation process (see also response to Comment (4)), nor would it likely make it more difficult to move a project forward within an area designated as critical habitat, or conversely make it easier to do so on nesting beaches outside such a designation.

We do not expect the designation of critical habitat to result in changes to how the conservation efforts are currently implemented. Our proposal to designate critical habitat did not reflect an assessment that current nesting beach sea turtle conservation efforts are insufficient. Quite the opposite is true. Our focus is on those locations with the greatest nesting densities and, therefore, highest conservation value to loggerhead recovery and conservation. Most of the beaches proposed for designation have active sea turtle conservation efforts by Federal, State, local governments; private conservation organizations; and individuals within coastal communities.

(11)

Comment:

The NCDNER and North Carolina Coastal Resources Commission (NCCRC) recommend that the USFWS prepare a comprehensive economic analysis of the potential impacts to coastal communities and stakeholders as a result of the additional management efforts the designation may require.

Our Response:

The Service's focus on the incremental impacts of the critical habitat rule is consistent with the U.S. Office of Management and Budget's (OMB's) guidelines for best practices concerning the method of conducting an economic analysis of Federal regulations. As described in section 2.1 of the FEA, OMB guidelines direct Federal agencies to measure the costs of a regulatory action against a baseline, which it defines as the “best assessment of the way the world would look absent the proposed action.” The baseline utilized in the FEA is the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat

absent

the designation of critical habitat. The baseline includes protections afforded the species under the Act, as well as under other Federal, State, and local laws and guidelines.

In recognition of the divergent opinions of the courts and to address the Presidential memorandum dated February 28, 2012, the Service promulgated final regulations specifying that the impact analysis of critical habitat designations should focus on incremental effects (78 FR 53058; August 28, 2013). This regulation now codifies the process of impact analysis for proposed critical habitat by completing an “incremental analysis.” This method of determining the probable impacts of the designation seeks to identify and focus solely on the impacts over and above those resulting from existing protections.

Accordingly, the FEA employs “without critical habitat” (baseline) and “with critical habitat” (incremental) scenarios. The analysis qualitatively describes how baseline conservation efforts for the DPS may be implemented across the proposed designation, and, where possible, provides examples of the potential magnitude of costs of these baseline conservation efforts (Chapter 3). The FEA focuses, however, on the incremental analysis, describing and monetizing the incremental impacts due specifically to the designation of critical habitat for the DPS (Chapter 4). Sections 2.2 and 2.3 of the FEA describe in detail how the analysis defines and identifies incremental effects of the proposed designation.

The incremental approach employed by the Service in its analyses of proposed critical habitat designations does not necessarily limit impacts to administrative costs of consultation. In some cases designation of critical habitat does result in new project modifications that need to be implemented to avoid possible adverse modification of the habitat. The costs of these project modifications would then be counted in the incremental analysis, regardless of who incurs the cost. In the case of the DPS, the entire proposed critical habitat is occupied by the species, and therefore any project modifications will be required even absent critical habitat (i.e., in the baseline) to avoid possibly jeopardizing the species' existence (see response to Comment (4)).

(12)

Comment:

The NCDNER and NCCRC believe the USFWS should provide additional information on the data utilized for the proposed designations in North Carolina.

Our Response:

Supporting documentation we used in preparing the proposed and final rules, as well as comments and materials we received during the two public comments periods, is available for public inspection on

http://www.regulations.gov,

or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, North Florida Ecological Services Office (see

FOR FURTHER INFORMATION CONTACT

).

(13)

Comment:

The South Carolina Department of Parks, Recreation, and Tourism recommends language used in the proposed rule be refined to address all ambiguities and more clearly specify and define permissible and non-permissible activities in order to avoid unnecessary legal disputes. Specifically, in the sections pertaining to

Special Management Considerations or Protection,

the language is often ambiguous or vague, leaving it open to interpretation. For example, the language used for activities listed as primary threats, especially coastal development and beach renourishment, needs to be more clearly specified in terms of activity definitions and circumstances in order to prevent any party from using this rule change to unnecessarily impede non-threatening activities through legal action. These types of delays can ultimately drive up costs for ongoing beach preservation efforts and negatively impact local communities and their economies. In addition, in the aftermath of a severe tropical storm or hurricane, this language may be used to prevent rebuilding previously existing structures on public beaches such as Edisto Beach, effectively shutting off the beach for public use. Similarly, in the section regarding “Human Presence,” while the majority of this section pertains to human presence at night, the statement referring to human foot traffic may also be interpreted to mean that protecting these habitats necessitates the removal of all human presence, regardless of time.

Our Response:

The USFWS has revised the language in this final rule to clarify the discussion and description of

Special Management Considerations or Protection

and threats to critical habitat.

(14)

Comment:

South Carolina Department of Natural Resources (SCDNR) notes an apparent lack of clarity as to what critical habitat designation means. The agency is uncertain of the actual impact to properties titled to the State of South Carolina and would like further clarification as to what changes would occur if such designation is finalized and accepted.

Our Response:

See our response to Comment (10), above.

(15)

Comment:

The Mississippi Development Authority commented that the reasoning for critical units along the shoreline of Mississippi was not apparent as there are far fewer nests compared to the southeast coast of Florida. They questioned the

significance of the two Mississippi units to the conservation of the species.

Our Response:

We understand that the beaches in Mississippi have lower nesting densities than in some of the other parts of the DPS's nesting range. The beaches that met the critical habitat criteria not only had the highest nesting densities within each of the four recovery units, but also represented a good spatial distribution that will help ensure the protection of genetic diversity, and collectively provide a good representation of total nesting. The distribution of designated critical habitat will conserve the habitat of this DPS by:

• Maintaining their existing nesting distribution;

• Allowing for movement between beach areas depending on habitat availability (response to changing nature of coastal beach habitat) and supporting genetic interchange;

• Allowing for an increase in the size of each recovery unit to a level where the threats of genetic, demographic, and normal environmental uncertainties are diminished; and

• Maintaining their ability to withstand local or unit level environmental fluctuations or catastrophes.

(16)

Comment:

The Florida Fish and Wildlife Conservation Commission (FWC) commented that to provide more regulatory certainty, it would be helpful if the USFWS would provide details on what standards will be used to determine if a project will result in adverse modification. Some Florida stakeholders have expressed concern regarding the uncertainty of how this designation affects the section 7 review and approval process. To that end, FWC requests additional details on how the USFWS' section 7 consultation process will differ in areas that are designated as critical habitat as compared to those areas that are not designated. The FWC believes the USFWS should consider the effects of the designation of critical habitat on the State's ability to restore and maintain sandy beaches and maintain functioning inlets.

Our Response:

Federal action agencies, in coordination with the USFWS, will assess each project during the section 7 consultation process to determine whether the project may adversely modify the designated critical habitat (see Effects of Critical Habitat Designation). These determinations generally are project specific and dependent on the conservation measures incorporated in the project design. For some projects, such as sand placement and groin and jetty repair and replacement, the USFWS has determined that the terms and conditions incorporated in the Florida Statewide Programmatic Sand Placement Biological Opinion for the DPS and other listed species would also ensure that sand placement projects, including emergency response, would not adversely modify critical habitat. See also our response to Comments (4) and (10).

(17)

Comment:

The FWC recommends further coordination between the USFWS and the Florida Department of Environmental Protection (FDEP) to avoid unintended consequences of the proposed critical habitat designation and existing State rules. In particular, current Florida law allows for the installation of coastal armoring protecting beachfront dwellings and infrastructure at risk to high frequency storms. However, the FDEP, through Florida Administrative code rule 62B-41.0055, prohibits coastal armoring in any location that is federally designated as critical habitat for sea turtles. As such, if the proposed critical habitat is established, the State may need to consider revising this rule.

Our Response:

The USFWS is aware of the State regulation and is willing to work with the FDEP to provide any additional information needed regarding impacts to loggerhead sea turtles. If the State of Florida rescinds the regulation, the USFWS will also work with any Federal agency that may fund, construct, or authorize a coastal armoring project and to determine the need to undergo section 7 consultation.

Public Comments

General

(18)

Comment:

Several commenters, many from municipalities within proposed critical habitat units, requested that the USFWS extend the comment period to allow sufficient time to provide comments that balance the environmental and economic effects of the proposed rule.

Our Response:

After the close of the initial comment period, the USFWS reopened the comment period for an additional 60 days on July 18, 2013 (78 FR 42921), with the announcement of the availability of the DEA of the proposed rule. We also held three public hearings to accept comments following announcement and reopening of the comment period.

(19)

Comment:

The USFWS should make its final determination of loggerhead critical habitat on nesting beaches in conjunction with the NMFS designation in the marine environment. There is concern that the independent actions of the agencies may result in inconsistent designations that do not reflect the importance of the connection between the marine and terrestrial environments.

Our Response:

Although the proposed rules for critical habitat in the terrestrial and marine environments were not published at the same time, the USFWS and NMFS have been coordinating our efforts and sharing information throughout the rulemaking process. The agencies will continue to do so, and it is anticipated that the final rules for critical habitat in both the terrestrial and marine environments will be published, and become effective, simultaneously.

(20)

Comment:

USFWS' failure to prepare an environmental impact statement (EIS) in connection with designating critical habitat is a violation of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321

et seq.

), as designation of critical habitat significantly affects the quality of the human environment.

Our Response:

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the NEPA in connection with designating critical habitat under the Act. See the Required Determinations section of the rule below for more about USFWS's position.

(21)

Comment:

The USFWS should provide a detailed description of additional regulatory requirements associated with the planning, implementation, and maintenance of shoreline and inlet projects within the critical habitat area designation.

Our Response:

The USFWS does not anticipate any additional regulatory requirements associated for any inlet or shoreline projects within the critical habitat units over and above those that would be required for the listed DPS (see our response to Comment (4)).

(22)

Comment:

The USFWS should provide a complete assessment of existing sea turtle management efforts by local, State, and Federal jurisdictions (including the USACE) affected by the proposed critical habitat designation area.

Our Response:

Within each critical habitat unit description, the USFWS identifies conservation or management plans that benefit the loggerhead sea turtle. We also identify specific sea turtle management efforts conducted on public lands as identified in the Federal, State and local management plans within that critical habitat unit. If a Federal agency is conducting, funding, or authorizing a project in the unit, we will, during section 7 consultation, include in the biological opinion terms

and conditions as appropriate to minimize the impacts of the project.

(23)

Comment:

The USFWS should conduct an analysis as to whether assumptions used in the Statewide Programmatic Biological Opinion (SPBO) covering the state of Florida, including the reasonable and prudent measures, are truly satisfactory to avoid adverse modification of critical habitat.

Our Response:

The USFWS used the most updated information in the SPBO to minimize the impact of the sand placement projects on the loggerhead sea turtle and other listed species. Our responsibility for analysis of impacts includes the nesting beach. Since the listed sea turtle species must use the nesting beach for laying their nests, incubating their eggs, and the emergence and movement of hatchlings from the nest to the ocean, the terms and conditions in our SPBO also address minimizing impacts to the nesting beach. As the beaches designated as critical habitat are all nesting beaches, these terms and conditions will also minimize impacts to critical habitat.

Economic Impacts

(24)

Comment:

The Town of Edisto Beach, South Carolina, requests that the USFWS withdraw the rule or eliminate the prohibitions due to significant adverse economic effects.

Our Response:

With regard to the commenter's reference to “prohibitions,” we clarify that the 12 activities described in the rule as primary threats do not equate to prohibitions of the continued and future implementation of such activities. These primary threats are categories of activities that may impact the habitat and may require special management considerations or protection. However, this rule designating critical habitat does not dictate what those special management or protection measures will be. Rather, such measures will be considered project specific and will depend on the measures already in place or incorporated into proposed projects, and the potential impacts of a proposed Federal action (or an action that is funded or permitted by a Federal agency) to the critical habitat. We have revised the language in the

Special Management Considerations or Protection

section of this final rule to clarify this.

In addition, the DEA did not indicate that there would be significant economic effects from the proposed designation (see our response to Comment (4)).

(25)

Comment:

There are economic impacts to creating loggerhead habitat in the Gulf of Mexico shoreline of Florida. With the regional biological opinion for hopper dredging in the Gulf, communities and the USACE are able to dredge and restore beaches in Florida during the summer months. There is a prohibition of summer dredging elsewhere (in order to protect turtles). If critical habitat is designated, it is not clear if summer construction will be permitted to continue. Thus greater competition for dredges during the winter will occur and result in an increase in prices for shore protection efforts.

Our Response:

The regional biological opinion, which was prepared by NMFS to cover the offshore (marine) dredging portion of beach nourishment projects, includes terms and conditions intended to minimize impacts to sea turtles and other listed species in the Gulf of Mexico. Additionally, the USFWS' SPBO covers the onshore (terrestrial) portion of beach nourishment and also includes measures to minimize impacts of the sand placement on the nesting beach on sea turtles and other listed species. Neither set of terms and conditions is expected to change as a result of critical habitat designation because, due to the presence of the listed species, the required terms and conditions are expected to also avoid adverse modification of critical habitat.

Exclusions

(26)

Comment:

The USFWS should minimize exclusions from critical habitat. Although economic impacts must be considered, the ultimate designation decision must be based on the biological and physical needs of the species and not economics. The commenter encourages the USFWS to fully consider the economic benefits of loggerhead critical habitat designation, including the tourism benefits of sea turtle habitat protection.

Our Response:

We are required by section 4(b)(2) of the Act to take into account national security, economic, and other relevant impacts of critical habitat designation. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

The primary goal of this critical habitat designation for the Northwest Atlantic Ocean DPS of the loggerhead sea turtle is to support its long-term conservation and recovery. Conservation and recovery of the DPS may result in benefits, including use benefits (wildlife-viewing), non-use benefits (existence values), and ecosystem service benefits (e.g., water quality improvements and enhanced habitat conditions for other species). In this rule, the economic analysis did evaluate such benefits of the proposed critical habitat designation but was unable to monetize their value. Since we do not anticipate that critical habitat designation will change the level or types of conservation efforts undertaken over and above those efforts already required for the listed species, we have no information on the incremental benefits that may be realized. Absent information on the incremental change in loggerhead population or recovery potential associated, we are unable to monetize associated incremental use and non-use benefits.

When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. The exclusions we identified in the proposed critical habitat rule were based on the presence of HCPs. When we evaluate the existence of a conservation or management plan when considering the benefits of exclusion, we consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.

(27)

Comment:

A number of commenters believe that the USFWS should not exclude six of the proposed units (numbered in the proposed rule as LOGG-T-FL-01, LOGG-T-FL-02, LOGG-T-FL-03, LOGG-T-FL-04, LOGG-T-FL-05, and LOGG-T-FL-10 in St. Johns, Volusia, and Indian River Counties, Florida) pursuant to section 4(b)(2) of the Act (16 U.S.C. 1533(b)(2)). The proposed rule identified these units

as being considered for exclusion based on the rationale that they are covered by HCPs (78 FR 18000; March 25, 2013). Two commenters believe that although the HCPs are commendable, case law does not support this basis for exclusion (e.g.,

Cape Hatteras Access Pres. Alliance

v.

U.S. Dep't of Interior,

731 F. Supp. 2d 15, 28 (D.D.C. 2010), quoting

Natural Res. Def. Council,

113 F.3d at 1127: “. . . the [Act] does not authorize `nondesignation of habitat when designation would be merely less beneficial to the species than another type of protection' ”). Mandatory consultation for Federal actions is a valuable benefit for the species. Additionally, HCPs expire over time and are vulnerable to cut-backs. Many commenters believe that protections in the areas covered by HCPs are inadequate. For example, the St. Johns County HCP only covers beach driving; it does not include or protect against all the possible dangerous activities that occur on these beaches.

Commenters further state that unlike DOD lands with approved INRMPs, there is no categorical exemption under the Act for areas with HCPs and there is no indication that the Secretary similarly has determined in writing that such a plan provides a benefit to the species for which critical habitat is proposed for designation. Because these plans can change over time, and assuming they meet the necessary biological criteria, all such areas should be included in the designation of critical habitat.

Our Response:

Using information collected during the public comment periods, as well as the HCP's annual reports and information already in our files, we evaluated whether these or other lands in the proposed critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. We evaluated whether the benefits of excluding the particular area outweigh the benefits of their inclusion, based on the “other relevant factor” provisions of section 4(b)(2) of the Act.

We find that the St. Johns, Volusia, and Indian River Counties' HCPs meet the above criteria for exclusion. Therefore, we are excluding non-Federal lands covered by these HCPs in proposed Units LOGG-T-FL-01, LOGG-T-FL-02, LOGG-T-FL-03, LOGG-T-FL-04, LOGG-T-FL-05, and LOGG-T-FL-10 because those HCPs adequately provides for the long-term conservation of the loggerhead and the Secretary has determined that the benefits of excluding these areas outweigh the benefits of including them in critical habitat. (For further information, see Exclusions, below.)

(28)

Comment:

Indian River County should be included in the designation of critical habitat, including currently unoccupied habitat, because a portion of the Archie Carr National Wildlife Refuge occurs in the County. According to NMFS' Web site (

http://www.nmfs.noaa.gov/pr/species/turtles/loggerhead.htm

), this refuge provides habitat for 25 percent of nesting loggerheads in the United States.

Our Response:

As discussed above (see our response to Comment (27)), non-Federal lands in Indian River County are covered by a county-wide HCP and are being excluded from critical habitat. However, a portion of Archie Carr National Wildlife Refuge, which is located in Indian River County but not within the HCP, is included in the critical habitat (Units LOGG-T-FL-07 and LOGG-T-FL-08).

Recommendations for Expansion of Critical Habitat Designation

(29)

Comment:

The USFWS must expand its proposal to include all areas containing the primary constituent elements that are essential to the conservation of the species. The USFWS's methodology of selecting the top 25 percent nesting density beaches and those adjacent to them does not appear to designate all areas occupied by the species on which the biological features essential to the conservation of the species are present. The USFWS must explain how its selection of more limited areas satisfies this legal requirement and provides for the conservation and recovery of the species.

Our Response:

Section 3(5)(C) of the Act states that “[e]xcept in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the . . . species.” Further, the USFWS is not required to designate all areas on which physical or biological features supporting the species are found. An area occupied by the species at the time of listing is eligible for designation of critical habitat if it contains “physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection” (section 3(5)(A)(i) of the Act).

All terrestrial units considered for designation as critical habitat are currently occupied by the loggerhead sea turtle and occur within the species' geographical range. They contain the physical and biological features essential to the conservation of the species and may require special management considerations or protection, and they contain the primary constituent elements sufficient to support the terrestrial life-history processes of the species sufficient for the conservation of the population. Of these beaches, the ones we designated are those that have the highest nesting densities within each of the four recovery units, have a good spatial distribution that will help ensure the protection of genetic diversity, and collectively provide a good representation of total nesting. The beaches adjacent to the primary high-density nesting beaches also currently support loggerhead nesting and can serve as expansion areas should the high-density nesting beaches be significantly degraded or temporarily or permanently lost through natural processes or upland development. Thus, the amount and distribution of critical habitat we are designating for terrestrial habitat will conserve recovery units of this DPS as described in our response to Comment (15).

(30)

Comment:

The USFWS should consider designation of areas that would provide for resilience to the threat of climate change, especially sea level rise and increased temperatures. The USFWS should consider sea level rise and its effects on the loggerhead sea turtle. While accounting for the level of sea rise is a complex task, there is a broad consensus in the scientific community that sea level rise is imminent. This will pose a significant threat to the beaches the loggerhead sea turtles need for continuation of the species.

Our Response:

As the comment acknowledges, specific forecasts related to climate change are difficult. Furthermore, habitat is dynamic, and nesting beaches may accrete and erode over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not support the conservation of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, may continue to be the subject of conservation actions, regulatory protections, and prohibitions on taking of the species, including taking caused by actions that affect habitat. The USFWS acknowledges that we cannot fully address the significant, long-term threat of climate change to

loggerhead sea turtles. However, we can determine how we respond to the threat of climate change by providing protection to the known nesting sites of the turtle. We can also identify measures to protect nesting turtles and their habitat from the actions (e.g., coastal armoring, sand placement) undertaken to respond to climate change that may potentially impact the DPS. As more specific forecasts become available in the future, a revision of critical habitat may be required to more effectively provide for the conservation of the species. At this time, however, such forecasts are unavailable. For more information on our assessment of climate change, see the

Climate Change

discussion within the of the

Special Management Considerations or Protection

section of this rule.

(31)

Comment:

Broward County Natural Resource Planning and Management Division and several other commenters believe that all or portions of Broward County should be considered for inclusion in the designation of critical habitat. Large areas of sea turtle nesting habitat exist in the County, particularly in the Fort Lauderdale, Dania Beach, North Hollywood Beach, and Hallandale areas. There is considerable nesting activity for the beaches between Hillsboro Inlet and Port Everglades. With a few exceptions (e.g., Port Everglades), the coastline has the appropriate physical and biological features as well as the primary threats requiring management. For example, in 2012, a volunteer organization in the County documented 20,000 disoriented hatchlings.

Commenters believe that Broward County should be listed as critical habitat because Florida has the most nesting habitat in the world for loggerhead sea turtles, which makes this area extremely important. Furthermore, beach nourishment is allowed to continue through May, which is both mating and nesting season for this species. Due to over-development of the coastal areas, the dunes have been removed, causing more beach erosion. Lastly, designation of critical habitat will help facilitate quicker compliance with the lighting laws and will ensure all future lights are up to code; critical habitat designation will help bring the County under one universal lighting code, which will help with enforcement.

Our Response:

The USFWS acknowledges the importance of the beaches in Broward County, including Fort Lauderdale, Dania Beach, North Hollywood Beach, and Hallandale Beach. However, only Unit LOGG-T-FL-14—Boca Raton Inlet-Hillsboro Inlet in Palm Beach and Broward Counties met the selection criteria (see our responses to Comments (15) and (29), above), with a nesting density greater than 83 nests per kilometer. The adjacent beach selected to serve as an expansion area for this unit is Unit LOGG-T-FL-13—Boyton Inlet-Boca Raton Inlet in Palm Beach County. Other nesting beaches in Broward County did not meet the critical habitat selection criteria because the nesting density was not high enough. However, loggerhead sea turtle nesting along these beaches will continue to be protected, as the DPS is listed as threatened under the Act and Federal agencies are required to consult with the USFWS to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of listed species.

(32)

Comment:

The USFWS should consider beaches from Doctor's Pass to Gordon Pass and Marco Island in Collier County, Florida, and the eastern end of Sanibel Island in Lee County, Florida, for inclusion in critical habitat. While these beaches are not the same nesting density as other beaches proposed for designation, they are currently occupied and do appear to contain the physical and biological features and PCEs. They have suitable nesting habitat that has relatively unimpeded access (PCE 1), appropriate sands to allow for nest building (PCE 2), and, when existing sea turtle protection ordinances are observed, sufficient darkness (PCE 3). Additionally, these beaches have supported considerable nesting and would support the USFWS's goal of designating beaches for resiliency and redundancy.

Our Response:

The USFWS acknowledges the importance of the beaches in Lee and Collier Counties. However, only Unit LOGG-T-FL-28—Keewaydin Island and Sea Oat Island from Gordon Pass to Big Marco Pass in Collier County met the selection criteria (see our responses to Comments (15) and (29) above) with a nesting density greater than 14.2 nests per km. The adjacent beach selected to serve as an expansion area for this unit is Unit LOGG-T-FL-27—Clam Pass to Doctors Pass in Collier County. Other nesting beaches in Lee and Collier Counties, such as the east end of Sanibel Island and Marco Island, did not meet the critical habitat selection criteria because the nesting density was not high enough. However, the loggerhead sea turtle nesting along these beaches will continue to be protected, as the DPS is listed as threatened under the Act and consultation between Federal action agencies and the USFWS is still required.

(33)

Comment:

Additional areas should be designated as critical habitat for Georgia. Specifically, the commenter recommends inclusion of Little St. Simons and Jekyll islands in critical habitat.

Our Response:

These beaches (Little St. Simons and Jekyll islands) did not meet the critical habitat selection criteria because the nesting density was not high enough (greater than 11.34 nests per km) or the island was not adjacent to a high density nesting beach. The beaches that are being designated as critical habitat represent over 80 percent of loggerhead sea turtle nesting in Georgia based on nest monitoring data from 2006 to 2011 provided by the State of Georgia.

(34)

Comment:

A few comments encourage the USFWS to expand the designation areas in North Carolina and include more habitat in the designation. One comment suggests that the USFWS considers other factors as well as those described in the proposed rule, such as those listed as PCEs (e.g., unimpeded near-shore access located above mean high water mark, suitable sand, and suitable nesting beach habitat). Alternatively, the USFWS could broaden the habitat by selecting the top 50 percent of high-density areas instead of adding beaches based on adjacency. The commenter also recommends that additional areas be designated as critical habitat for South Carolina. Specifically, the commenter recommends inclusion of the following beaches and islands: Bay Point, Hilton Head, North, Pritchards, Bull, and Hunting.

Similarly, other comments recommend the inclusion of Cape Hatteras, Cape Lookout, Figure 8 Island, Ocean Isle, and Sunset Beach, North Carolina. They maintain that focusing on areas of greatest nest density per kilometer of beach ignores larger areas such as Cape Hatteras and Cape Lookout National Seashores, which have the highest total number of nests per beach in North Carolina.

Another comment asked that areas to the north of Bogue Banks, North Carolina, be designated, as nesting is anticipated to increase in the north both due to warming and range expansion expected with an increasing population.

Our Response:

The USFWS acknowledges the importance of all loggerhead sea turtle nesting beaches. The recommended beaches did not meet the critical habitat selection criteria either because the nesting density was not high enough (greater than 2.38 nests per kilometers in North Carolina; greater than 13.97 nests per kilometer in South

Carolina) or the island was not adjacent to a high density nesting beach. The selected high density beaches and adjacent beaches represent over 75 and 96 percent of loggerhead nesting in North Carolina and South Carolina, respectively, based on data from 2006-2011. Loggerhead nests will continue to be protected along beaches that are not designated as critical habitat because the DPS is listed as threatened under the Act (see our responses to Comments (15) and (29), above).

(35)

Comment:

It is important that the USFWS consider the benefits of designating critical habitat in Louisiana and Texas despite the current low number of nests because this designation requires agencies to ensure that their actions are “not likely to jeopardize the continued existence of [the loggerhead sea turtle] . . . or result in the destruction or adverse modification of habitat of [the loggerhead sea turtle].” If proactive measures are not taken to save the habitat of this species in Louisiana and Texas, the number of nests and turtles in these States may dwindle, causing further damage to this species.

Another commenter asked that Chesapeake Bay and Delaware Bay be included in the final rule as critical habitat because they are specific regions within the geographical area occupied by loggerhead sea turtles that are essential to conservation and require special management consideration.

Our Response:

The USFWS agrees that nesting in the northern and western extent of the nesting range of the DPS is important to the conservation and recovery of the species. Louisiana, Texas, Virginia, and Delaware are not included in the designation based on the very low number of nests known to be laid in these States (less than 10 annually in each State from 2002 to 2011). However, protective measures are in place to protect the loggerhead sea turtle in these States because the species is listed under the Act. Federal agencies are already required to consult with the USFWS to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of loggerhead sea turtles.

Recommendations of Areas To Exclude From Critical Habitat Designation

(36)

Comment:

The Town of Holden Beach, North Carolina, contends that the specific areas proposed to be designated as critical habitat for the loggerhead sea turtle in North Carolina are arbitrary and capricious because (1) North Carolina's beaches' nesting density is low compared to South Carolina, Georgia, and Florida, and (2) the USFWS did not provide any basis that North Carolina nesting beaches are required to provide genetic diversity. Other commenters contend that loggerhead sea turtle nesting density data do not support designation of critical habitat for any of North Carolina's beaches, and particularly not Bogue Banks, compared to South Carolina, Georgia, and Florida. Further, loggerhead sea turtle nesting in North Carolina represents a small fraction (approximately 1 percent) of not only the nesting by loggerhead sea turtles in the Northwest Atlantic Ocean DPS, but also within the Northern Recovery Unit (approximately 13 percent) of the Northwest Atlantic Ocean DPS.

Our Response:

We understand that the beaches in North Carolina have lower nesting densities than in some of the other parts of the species' nesting range. However, for recovery of the DPS, it is important to conserve:

• Beaches that have the highest nesting densities, by State or region within a State;

• Beaches that have a good spatial distribution to ensure protection of genetic diversity;

• Beaches that collectively provide a good representation of total nesting; and

• Beaches adjacent to the high-density nesting beaches that can serve as expansion areas.

North Carolina falls within the Northern Recovery Unit. Within this Recovery Unit, we divided beach nesting densities into quartiles (four equal groups) by State and selected beaches that were within the upper quartile for designation as critical habitat. The reason we determined high nesting density beaches within each State (rather than the entire Northern Recovery Unit) was that it allowed for the inclusion of beaches near the northern extent of the range (North Carolina) that would otherwise be considered low density when compared with beaches in Georgia and South Carolina. This ensures good spatial distribution.

(37)

Comment:

The Town of Edisto Beach, South Carolina, requests to be excluded from the designation of critical habitat because the beach supports an average of only 80 nests a year and the typical sand on the beach is medium-sized and coarse and does not fit the USFWS's description of “deep, clean, relatively loose sand above high-tide level.”

Our Response:

The beaches within the Town of Edisto Beach, South Carolina, meet the criteria for critical habitat described in the

Criteria Used to Identify Critical Habitat

section of the proposed and final rule, and specifically, the Northern Recovery Unit (i.e., unit supports expansion of nesting from an adjacent unit that has high-density nesting of loggerhead sea turtles in South Carolina, was occupied at the time of listing and is currently occupied, and contains all the physical or biological features and primary constituent elements). We note that “sand” in the proposed rule is defined as “. . . material predominately composed of carbonate, quartz, or similar material with a particle size distribution ranging between 0.062 mm and 4.76 mm (0.002 in and 0.187 in) (Wentworth and ASTM classification systems).” Medium and coarse sand meets this definition. We have no other information to support excluding the beaches within the Town of Edisto Beach under section 4(b)(2) of the Act.

(38)

Comment:

The Village of Bald Head Island, North Carolina, requests that the USFWS exclude Bald Head Island from critical habitat designation under section 4(b)(2) of the Act. The commenter explains that although not recognized in the proposed rule, Bald Head Island has a well-established and respected sea turtle protection program and as such believes the Island should be excluded, as similar consideration is being given to St. Johns, Volusia, and Indian River Counties, Florida, based on established habitat conservation plans. As one of NMFS's “index beaches,” Bald Head Island is nationally recognized for its sea turtle nesting activity, and for the Bald Head Island Conservancy's efforts to protect this resource. At this point, no additional benefit would be gained by the designation, and additional regulatory burdens may hinder local efforts.

Our Response:

The beaches of Bald Head Island meet the criteria for critical habitat described in the

Criteria Used to Identify Critical Habitat

section of the proposed and final rule, and specifically, the Northern Recovery Unit (i.e., the unit has high-density nesting by loggerhead sea turtles in North Carolina, was occupied at the time of listing and is currently occupied, and contains all the physical or biological features and primary constituent elements). While Bald Head Island, like many of the beaches in this designation, has in place active sea turtle conservation efforts by Federal, State, local governments; private conservation organizations; and individuals, we have no knowledge of any plans that commit to dedicated funding of such efforts or that this program provides comprehensive sea turtle protection. Example programs could include beachfront lighting regulations,

managed beach access, beach and dune habitat protection and restoration programs, or coastal development regulations. We recognize the efforts on Bald Head Island, but are not excluding the area, because the benefits of designating critical habitat outweigh the benefits of exclusion.

(39)

Comment:

The Escambia County Community and Environmental Department believes the areas jurisdictional to Escambia County on Perdido Key, Florida, within the Northern Gulf of Mexico Recovery Unit, should be considered for exclusion under section 4(b)(2) of the Act due to a pending programmatic HCP consistent with other communities such as St. Johns, Volusia, and Indian River Counties.

Our Response:

The beaches of Escambia County meet the criteria for critical habitat. Although an area may be excluded if it is covered by an HCP, we must assess each HCP to determine whether the implementation of the conservation efforts benefits loggerhead sea turtles. Since this HCP has not yet been approved by the USFWS, or implemented in accordance with a permit, we are not excluding units within the proposed HCP coverage area.

Best Available Information and Methods

(40)

Comment:

The USFWS must include the most current nesting data through 2012.

Our Response:

The Northwest Atlantic Ocean loggerhead sea turtle DPS was listed in 2011 (76 FR 58868). We have defined the terrestrial portion of the geographical area occupied for the loggerhead sea turtle as those U.S. areas in the Northwest Atlantic Ocean DPS where nesting has been documented for the most part annually for the 10-year period from 2002 to 2011, as this time period represents the most consistent and standardized nest count surveys throughout the DPS' nesting range. Consistent with this definition, in the Northern Recovery Unit, Peninsular Florida Recovery Unit, and Northern Gulf of Mexico Recovery Unit (Florida and Alabama), we used loggerhead nests counts from 2006-2011 to calculate mean nest density for each beach and select the high density nesting beaches within each recovery unit. However, even though we did not rely on the 2012 nesting data in the proposed rule, we now find that they support the high density nesting beaches selected using the 2006-2011 mean nest density.

(41)

Comment:

The USFWS must incorporate any evidence about the impact of recent management changes, for example, the Cape Hatteras National Seashore Off-Road Vehicle Management Plan and Special Regulation, which was implemented in 2012.

Our Response:

While the USFWS may use information from management plans in discussing special management or protection considerations, we did not propose any critical habitat units within the Cape Hatteras National Seashore (CHNS). Therefore, discussion of the management changes at CHNS was not necessary because the changes do not affect any of the units in the designation.

(42)

Comment:

One commenter concurred with the identification of the physical and biological features of critical habitat, the primary constituent elements of critical habitat, and the listed threats. However, the commenter believes the information cited is stale and sometimes cited references have been misinterpreted or their incorporation is misleading.

Our Response:

The USFWS updated the final rule with additional literature we received during the comment period and peer review. The USFWS collaborated with State technical advisors on the nesting data analysis. The peer review of the proposed rule did not indicate any of the references we used were misinterpreted or are misleading.

(43)

Comment:

It seems awkward that the USFWS did not seek peer review before submitting the proposed rule for public comment. It is acknowledged that as a result, the final rule may differ significantly from what is proposed. The commenter asks whether the public will get a second chance to comment on the next version of a rule, especially if there are significant changes.

Our Response:

The USFWS conferred with scientific experts, including State technical advisors, during the development of the proposed rule and used the best scientific information available. Moreover, as discussed above, the peer review comments did not reflect suggestions for major changes to the rule. All revisions based on information we received during the public comment period are outlined in this final rule and do not represent any significant changes from the proposed rule.

(44)

Comment:

The discussion of the effects of coastal structures is narrow and biased. The quoting of Kaufman and Pilkey (1979) demonstrates a narrow understanding of the use of coastal structures. While there are outfalls within the State of Florida, they are outdated facilities designed prior to our modern understanding of coastal biology and engineering. The outfalls are few and their impacts are insignificant to the health of the large-scale sea turtle nesting habitat. The FDEP and FWC utilize existing regulatory programs where possible to reduce the impact of existing outfalls. New outfalls are prohibited by rule (62b-33, Florida Administrative Code).

Our Response:

The USFWS verified that the information cited in Kaufman and Pilkey (1979) reflected our current understanding of coastal systems. There are existing outfalls along the loggerhead sea turtle nesting beach that create localized erosion channels, prevent natural dune establishment, and wash out sea turtle nests. The USFWS agrees that the design of new outfalls minimize the localized erosion; however, this impact continues for existing outfalls with the outdated design and is considered an impact to sea turtle nests.

(45)

Comment:

The USFWS should provide a scientific basis for the argument that “the presence of groins and jetties may . . . concentrate predatory fishes, resulting in higher probabilities of hatchling predation.” While natural hard-bottom fishing piers and coastal structures may lead to higher concentrations of predatory fishes, there is little data (if any) that demonstrate that the concentration of predatory fishes leads to an increase in predation of recent hatchlings. With many of the beaches yielding low densities of hatchlings and coastal structures being sparse in Florida, the overlay of the probabilities of increased predation must be small or insignificant. Further, the concentration of predatory fishes by structures must indicate an abundant food source for them as sea turtle hatching occurs for just a short period of time throughout the year along any unit length of beach. For example, some Gulf of Mexico beaches may have nesting densities in the 10 nests per mile range, or 1 per 500 feet. With shore-perpendicular coastal structures being only approximately 50 feet, in effect, the number of nests near any structure is only 0.1 nests per structure. The 0.1 nest will hatch on one night providing food for the predatory fish for, at most, that one night. For the remainder of the year, the predatory fish must be eating something else besides sea turtle hatchlings.

Our Response:

The USFWS has updated this rule to include additional citations to support the proposition that the concentration of predatory fish increases due to the presence of groins and jetties.

(46)

Comment:

Given that the critical habitat designation is based solely upon a numerical standard, such as nest density, it is imperative that the USFWS

publicly discloses the data as well as cutoff top quartile thresholds that it used to determine designated areas.

Our Response:

Supporting documentation we used in preparing the proposed and final rules, as well as comments and materials we received during the two public comment periods, are available for public inspection on

http://www.regulations.gov,

or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, North Florida Ecological Services Office (see

FOR FURTHER INFORMATION CONTACT

).

(47)

Comment:

Critical habitat units as proposed for Lee County, Florida, are flawed. Portions of these proposed units, in their natural state, do not contain the physical and biological features essential to conservation. Specifically, in the absence of directed human activity in the form of dredge spoil placement and beach nourishment, they did not and would not contain a beach sufficient to support a successful marine turtle nest. This PCE is only present because of designed and constructed public works projects of the type listed in the proposed rule as potential threats to loggerhead sea turtle conservation. This is a fundamental inconsistency that must be corrected.

Our Response:

The natural state of these beaches would consist of shoreline that does not contain any human-related development that would keep the dynamic coastal process from occurring (erosion and accretion). However, when the shoreline has been fixed in place because of human development, the natural dynamics of the shoreline are unable to occur. Therefore, beach nourishment and similar projects take the place of the natural process. As indicated in previous responses to comments, we have acknowledged the results of these activities as a physical and biological feature. As stated in both the proposed rule and this final rule: “we identify natural coastal processes or activities that mimic these natural processes to be a physical or biological feature for this species. It is important that loggerhead nesting beaches are allowed to respond naturally to coastal dynamic processes of erosion and accretion or mimic these processes.” Accordingly, the units in Lee County meet the selection criteria and contain one or more of the PCEs.

(48)

Comment:

The USFWS should be more consistent in its use of 20-km segments to break up beach segments that are overly large in some areas for an accurate assessment of nesting densities.

Our Response:

Beach segments were identified as barrier islands or mainland beaches separated by creeks, inlets, or sounds. For beach segments that were overly large in some area, such as the Florida Peninsular Recovery Unit (excluding the Florida Keys) and the Northern Gulf of Mexico Recovery Unit (except Mississippi), we used nest site fidelity information to break up these beaches into 20-km segments. Calculating nesting densities for overly large areas would have resulted in some high-density nesting beaches not being identified because they would be averaged in with adjacent lower density nesting beaches. Segmenting these larger areas ensured the high density nesting beaches were represented throughout the DPS' nesting range. See also the descriptions for each recovery unit in the Critical Habitat section of this rule for further explanation of the methodology used to identify beach segments within each recovery unit.

(49)

Comment:

Commenters expressed their concern on the method for selecting the entire 38.9-km shoreline of Bogue Banks in North Carolina as a critical habitat unit, because it is adjacent to a high-density nesting beach.

Our Response:

Loggerhead sea turtles nest on dynamic ocean beaches that may be significantly degraded or lost through natural processes (erosion) or development. We designated beaches adjacent to the high-density nesting beaches as critical habitat to ensure the availability of nesting habitat if the high-density nesting beaches are temporarily or permanently lost. Loggerhead sea turtles are known to exhibit high site fidelity to individual nesting beaches. In a study in Georgia, 55 percent (12 of 22) of nesting females tracked during the inter-nesting period used a single island for nesting while 40 percent (9 of 22) used two islands (Scott 2006). Protecting individual beaches adjacent to high-density nesting beaches should provide sufficient habitat to accommodate nesting females whose primary nesting beach has been lost. We selected the adjacent beaches by designating one beach to the north and one beach to the south of each of the high-density beaches as critical habitat. See also our response to Comment (36).

Erosion Management and Sand Placement

(50)

Comment:

One commenter is concerned that this and other regulations do not make a distinction between erosion management structures that are harmful (e.g., “hard forms” such as seawalls, revetments, and groins) and those that are beneficial (e.g., erosion control structures such as breakwaters and some groin designs) to sea turtles. This is important because beneficial structures may not only facilitate habitat restoration efforts that might otherwise not be economically feasible due to high erosion rates in front of existing seawalls. It should also be considered that viable sand sources for beach nourishment are finite, and carefully designed erosion control structures reduce, and in some cases may eliminate, the need for future beach nourishment.

Our Response:

For this rule, we are unable to make such distinctions because these projects may vary considerably with corresponding positive and negative effects. Most projects with the appropriate conservation measures incorporated minimize negative effects to nesting sea turtles and may provide overall benefits (e.g., maintenance of nesting habitat) if properly designed, installed, and maintained.

(51)

Comment:

One comment states that properly done and well-scrutinized beach nourishment should not pose major threats to the species, and, therefore, the critical habitat designation will not affect the nourishment efforts taken by coastal towns. By looking at the nesting density data in North Carolina, it can be observed that most of the designated high-density beaches have been nourished in the past years. With the exception of Bear Island (a State park), all other designated high-density islands have been heavily nourished in the past.

Our Response:

The USFWS agrees that properly implemented, appropriate conservation measures incorporated in beach nourishment projects minimize impacts to loggerhead sea turtles and their habitat. As we have indicated in our response to Comment (4), we do not anticipate additional conservation measures over and above those already implemented for the listed DPS.

(52)

Comment:

The USFWS is urged to include beach restoration as an approved “special management consideration.” Climate change is causing sea levels to rise and the rate of sea level rise may accelerate over the next century due to increased levels of carbon dioxide, which will increase with global warming. Higher sea levels cause beaches to erode and retreat, threatening habitat that is currently suitable for nesting of loggerhead sea turtles. Beach restoration and periodic nourishment restores and maintains nesting habitat and remains the most effective form of “special management considerations” over the next 50 years for managing the impacts of climate change. If the new critical habitat areas

are designated and rules imposed in those areas inhibit the continuation of cost-effective beach nourishment programs, the net impacts to the loggerhead sea turtles and their nests would be negative given the current and future projections of climate change.

Our Response:

Beach suitability depends mainly on four environmental factors (slope, temperature, moisture, and salinity). Both natural and human impacts to beaches affect their suitability for sea turtle nesting and egg incubation. For loggerhead sea turtle terrestrial habitat, special management considerations focus on reducing the threats to the suitability of the nesting beach. Human-altered beaches do have direct, indirect, and cumulative impacts to sea turtles and thus are not considered a “special management consideration.” However, the USFWS acknowledges that properly implemented appropriate conservation measures in beach nourishment projects minimize impacts to sea turtles.

(53)

Comment:

One commenter recommended that the USFWS consider the need for continued nourishment and structures as part of the community's efforts to protect critical habitat on Bald Head Island, North Carolina.

Our Response:

The USFWS has considered and taken into account the beneficial effects of beach nourishment and other beach stabilization projects as provided in our identification of PCE 4, which is “natural coastal processes or artificially created or maintained habitat mimicking natural conditions” (see also response to Comment (47)).

(54)

Comment:

USFWS failed to use the best scientific data available. For example, in analyzing the potential impacts of beach sand placement activities, USFWS relied on publications from as long as 26 years ago. More recent studies analyzing beach placement activities are available, and USFWS failed to rely on these studies.

Our Response:

For the final rule, we used the best and most current available data relevant to beach sand placement. We have defined the terrestrial portion of the geographical area occupied for the loggerhead sea turtle as those U.S. beaches in the Northwest Atlantic Ocean DPS where nesting has been documented for the most part annually for the 10-year period from 2002 to 2011, as this time period represents the most consistent and standardized nest count surveys throughout the DPS' nesting range. See also our response to Comment (40).

Additionally, we received scientific references and literature from the peer reviewers and in comments from the public. Additions or updates to the rule using this information are summarized in the Summary of Changes From Proposed Rule section. The additional information did not change the critical habitat selection criteria or the units in the critical habitat designation.

(55)

Comment:

The USFWS should consider changes in North Carolina's political environment that may soon reduce or eliminate existing laws that safeguard the terrestrial ecosystem along the coast. For example, legislation has been proposed that would repeal long-standing restrictions on the construction of jetties and groins. If this bill becomes law, structures that impede the natural flow of sand and alter the migration of barrier islands—and that present physical barriers to nesting turtles—may become commonplace along the oceanfront.

Our Response:

Federal agencies are required to consult with the USFWS to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat (see our response to Comment (4)). Projects that have a Federal nexus (e.g., projects that are funded, authorized, or carried out by Federal agencies) are subject to this requirement under the consultation provisions of section 7 of the Act. This would include construction of groins and jetties, which must be permitted by the USACE under appropriate Federal laws regardless of State law. Moreover, even where critical habitat has not been designated, loggerhead sea turtle nesting along these beaches will continue to be protected, as the DPS is listed under the Act notwithstanding the presence or absence of protections under State law.

(56)

Comment:

Brevard County, Florida, and other commenters are concerned that the critical habitat designation may complicate or increase the cost of existing successful turtle-friendly coastal management projects or traditional use of the beach. The County believes that it could be confusing to list beach sand placement and recreational beach use as primary threats to the species, but also as a tool that defends against increased harm by other primary threats such as erosion and beach armoring. The County encourages USFWS to make clear and reinforce statements about beach nourishment and beach sand placement. They also believe that specific recreational activities should be addressed differently (i.e., beach cleaning and driving versus human foot traffic). Brevard County urges the USFWS to take all steps necessary to assure the critical habitat designation cannot be cited in a lawsuit to justify restrictions to traditional public use of the beach.

St. Lucie County, Florida, asks if special management considerations and protection will be consistently applied throughout a recovery unit even though there may be varying nesting densities and beach nourishment frequencies within that unit, or if the actual habitat conditions (i.e., specific nesting conditions) will drive the process.

Our Response:

Only projects that have a Federal nexus (e.g., projects that are funded, authorized, or carried out by Federal agencies) are subject to the requirement for consultation under section 7 of the Act. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to restrict access to the beach. See also our response to Comment (10).

In the proposed rule, we identified 12 categories of threats that may require special management considerations or protection in the critical habitat units. Threats in each critical habitat unit differ, therefore the special management considerations and protections will vary.

Clarifications and Corrections

(57)

Comment:

The USFWS should clarify that while critical habitat does not include “developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the loggerhead sea turtle,” it does include human-altered beaches that still contain the PCEs identified for successful nesting.

Our Response:

The USFWS acknowledges that human-altered or engineered beaches may still contain the PCEs identifies for successful nesting. The final rule has been revised to include further explanation on human-altered beaches in the

Primary Constituent Elements for the Northwest Atlantic Ocean DPS of the Loggerhead Sea Turtle

section. See also our responses to Comments (50) and (51), above.

(58)

Comment:

It is not clear why the USFWS is not designating the critical habitat throughout the range of all global DPSs, especially the two DPSs (Northwest Atlantic and North Pacific) that can be found in the United States (terrestrial or aquatic).

Our Response:

Critical habitat may only be designated in areas under U.S. jurisdiction per the regulations implementing the Act at 50 CFR 424.12(h). The USFWS has jurisdiction

over sea turtles on the land, and loggerhead sea turtles come on land only to nest; therefore, the only terrestrial habitat they use is for nesting. Because critical habitat can only be designated in areas under U.S. jurisdiction and because loggerhead sea turtle nesting in the United States occurs only within the Northwest Atlantic Ocean DPS, we are only designating specific areas in the terrestrial environment as critical habitat for this one DPS. Since no loggerhead nesting occurs within U.S. jurisdiction for the North Pacific Ocean DPS, no critical habitat has been proposed for that DPS in the terrestrial environment. Similarly, NMFS has jurisdiction over sea turtles in the water. On July 18, 2013 (78 FR 43006), NMFS published proposed critical habitat for the marine environment for the Northwest Atlantic Ocean DPS and reviewed potential areas within U.S. jurisdiction for critical habitat in the North Pacific Ocean loggerhead DPS (no areas met the definition of critical habitat in this DPS; therefore none was proposed); again because these are the only DPSs that occur in areas under U.S. jurisdiction.

(59)

Comment:

The USFWS needs to explain why critical habitat is not being designated for all recovery units of the Northwest Atlantic Ocean DPS. Contrary to the Executive Summary, which states “[t]his is a proposed rule by the [USFWS] to designate specific areas in the terrestrial environment as critical habitat for the Northwest Atlantic Ocean [DPS] of the loggerhead sea turtle,” the proposed designation does not include any within the range of the Caribbean recovery unit and evidently nothing within the Caribbean was considered.

Our Response:

The Greater Caribbean Recovery Unit includes all nesting assemblages within the Greater Caribbean, which includes Puerto Rico and the U.S. Virgin Islands. No loggerhead sea turtle nesting has ever been documented in Puerto Rico (Diez 2012, pers. comm.). Only two loggerhead sea turtles have been documented as nesting in the U.S. Virgin Islands, both on Buck Island Reef National Monument off the north coast of St. Croix (Pollock

et al.

2009, entire), where nesting has been documented since 2003. Therefore, although some loggerhead sea turtle nesting has been documented on beaches under U.S. jurisdiction within the Greater Caribbean Recovery Unit, we did not propose to designate any critical habitat in this unit due to the very low number of nests laid there.

(60)

Comment:

The Town of Holden Beach, North Carolina, and other commenters believes the USFWS should reassess its prudency determination pursuant to regulations implementing the Act (50 CFR 424.12(a)(1)). Holden Beach believes a determination of “not prudent” is appropriate because there are already adequate measures in place to ensure the survival and recovery of the loggerhead sea turtle and designation would adversely impact these successful programs resulting in loss of habitat and an increase in the degree of threat to the species. Other commenters are concerned that the critical habitat designation is not prudent because it would make it more difficult for local governments and others to conduct active coastal shore damage reduction projects and that existing successful conservation programs will be burdened with additional and unnecessary measures and will become more costly to implement.

Our Response:

Our regulations (50 CFR 424.12(a)(1)) describe the conditions in which critical habitat could be determined to be “not prudent;” essentially, the designation of critical habitat is not prudent if the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the threat, or because designation of critical habitat would not be beneficial to the species.

There is currently no identified imminent threat of take attributed to collection or vandalism of nesting beaches within the DPS, and identification and mapping of specific areas in the terrestrial environment as critical habitat is not expected to create or increase any such threat. On the other hand, potential benefits of designation include: (1) Focusing conservation activities on the most essential features and areas; (2) providing educational benefits to State or county governments or private entities; and (3) preventing people from causing inadvertent harm to the species and beaches with active nesting. Therefore, we found that designation of critical habitat is prudent for the Northwest Atlantic Ocean DPS of the loggerhead sea turtle.

The proposal to designate critical habitat did not reflect an assessment that current nesting beach sea turtle conservation efforts are insufficient. Most of the beaches proposed for designation have active sea turtle conservation efforts by Federal, State, local governments; private conservation organizations; and individuals within coastal communities. Most, if not all, beach projects already under go special management considerations by Federal action agencies and have since the species was listed. We do not expect the designation to result in changes to how the conservation efforts are currently implemented or project conservation measures (see our response to Comment (4)).

(61)

Comment:

Several commenters contend that the specific areas proposed to be designated as critical habitat for the loggerhead sea turtle do not contain features that, now or in the future, may require special management considerations or protection measures beyond those that are already in place. The USFWS failed to adequately consider existing regulations and programs that ensure that loggerhead sea turtle habitat is protected and maintained, and failed to analyze the impacts of designating critical habitat on the effectiveness of these successful programs as required by the Act.

Our Response:

All of the beaches that we proposed for critical habitat designation contain the physical or biological features consisting of a beach that is:

• Capable of supporting a high density of nests or serving as an expansion area for beaches with a high density of nests and the beaches;

• Well distributed within each State or region within a State;

• Representative of total nesting; and

• Support natural coastal processes or activities that mimic these natural processes.

All of the beaches have one or more threats that may require special management considerations or protection measures. Further, the statement of “beyond those that are already in place” reflects an incorrect understanding of the Act. The proposal did not reflect an assessment that current nesting beach sea turtle conservation efforts are insufficient. Most of the beaches proposed for designation have active sea turtle conservation efforts by Federal, State, local governments; private conservation organizations; and individuals within coastal communities. Most, if not all, beach projects already under go special management considerations by Federal action agencies and have since the species was listed. We are designating as critical habitat those locations that met the selection criteria and, therefore, represent the highest conservation value to loggerhead sea turtle recovery and conservation.

(62)

Comment:

The location of the Intracoastal Waterway shown on the map of Units LOGG-T-FL-23, 24, 25, and 26 is inaccurate and should be

corrected for accuracy or removed from the map.

Our Response:

We understand that the critical habitat as depicted on the background layer of the maps may not appear to align with the shoreline or other features such as the Intracoastal Waterway. The background layer shown in the rule is for display purposes only and may not accurately represent these features because of the dynamic coastal process and the inability of mapping data acquisition efforts to keep up with the changes. The data layers defining map units were created using Google Earth imagery, then refined using Bing imagery, and unit descriptions were then mapped using North America Lambert Conformal Conic coordinates; maps generated in this way do not provide a legible print in black and white as printed in the

Federal Register

. However, the coordinates, plot points, or both on which each map is based are available to the public at the USFWS's Internet site at

http://www.fws.gov/northflorida,

at

http://www.regulations.gov

at Docket No. FWS-R4-ES-2012-0103, and at the North Florida Ecological Services Office (see

ADDRESSES

).

Summary of Changes From Proposed Rule

The following changes have been made to the final rule from the proposed rule:

1. Based on comments from peer and public review, we have updated the information in the

Background, Physical or Biological Features,

and

Special Management Considerations or Protection

sections with updated information from recommended literature.

2. In response to concerns and confusion regarding beach stabilization projects, we have added a fourth PCE to the final rule:

Natural coastal processes or artificially created or maintained habitat mimicking natural conditions.

3. In accordance with section 4(b)(2) of the Act, based on the information provided in the HCP annual reports, as well as additional public comments received and information in our files, we are excluding all or portions of proposed Units LOGG-T-FL-01, LOGG-T-FL-02, LOGG-T-FL-03, LOGG-T-FL-05, and LOGG-T-FL-10 in St. Johns, Volusia, and Indian River Counties, Florida, that are covered under those HCPs. (See Exclusions section below for more explanation).

4. We have made changes to maps, units, and the rule itself. In total, the final critical habitat designation has decreased from the proposed rule by 87.8 km (54.5 mi). The new unit descriptions are provided below in the Final Critical Habitat Designation section:

• For the units in Florida, the originally numbered Units LOGG-T-FL-01 to LOGG-T-FL-47 have been renumbered in the final rule as Units LOGG-T-FL-01 to LOGG-T-FL-45 by shifting up one to two numbers. This is due to the exclusion of the entire originally proposed Units LOGG-T-FL-02 and LOGG-T-FL-05 based on their inclusion in HCPs (see above). In addition, these exclusions resulted in a decrease from the proposed rule of 87.2 km (54.3 mi) of designated critical habitat for the DPS (see Table 2 in the Exclusions section).

• Based on information we received from the NPS regarding Garden Key in the LOGG-T-FL-34—Dry Tortugas, Monroe County, Florida, we revised the unit description and corresponding map to more accurately reflect the availability of nesting habitat for the DPS. This revision resulted in a 0.6 km (0.2 mi) decrease in the total length of the unit.

Background

It is our intent to discuss in this final rule only those topics directly relevant to the designation of critical habitat. Please refer to the final listing rule for the DPS published on September 22, 2011 (76 FR 58868), and proposed critical habitat designation for the DPS published March 25, 2013 (78 FR 18000), for a summary of the species and habitat information. Additional information on the associated draft economic analysis for the designation was published in the

Federal Register

on July 18, 2013 (78 FR 42921). For more information on the taxonomy, biology, and ecology of the loggerhead sea turtle, refer to the Recovery Plan for the Northwest Atlantic Population of the Loggerhead Sea Turtle (

Caretta caretta

) (NMFS and USFWS 2008, entire), which is available from the North Florida Ecological Services Office (see

FOR FURTHER INFORMATION CONTACT

).

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated take.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure that, in consultation with USFWS or NMFS, any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific

and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Physical or Biological Features

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features (PBFs) that are essential to the conservation of the species and which may require special management considerations or protection. These 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, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographic, and ecological distributions of a species.

We derive the specific PBFs essential for the loggerhead sea turtle from studies of this species' habitat, ecology, and life history as described below. Additional information can be found in the final listing rule published in the

Federal Register

on September 22, 2011 (76 FR 58868), and the Recovery Plan for the Northwest Atlantic Population of the Loggerhead Sea Turtle (

Caretta caretta

) (NMFS and USFWS 2008, entire).

Shaffer and Stein (2000, pp. 307-314) identify a methodology for conserving imperiled species known as the “three Rs”: Representation, resiliency, and redundancy. Representation, or preserving some of everything, means conserving not just a species but its associated habitats. Resiliency and redundancy ensure there is enough of a species so it can survive into the future. Resiliency means ensuring that the habitat is adequate for a species and its representative components. Redundancy ensures an adequate number of sites and individuals. This methodology has been widely accepted as a reasonable conservation strategy (Tear

et al.

2005, p. 841). In applying this strategy, we have determined that it is important to conserve:

(1) Beaches that have the highest nesting densities (representation);

(2) Beaches that have a good spatial distribution to ensure protection of genetic diversity (resiliency and redundancy);

(3) Beaches that collectively provide a good representation of total nesting (representation); and

(4) Beaches adjacent to the high density nesting beaches that can serve as expansion areas and provide sufficient habitat to accommodate and provide a rescue effect for nesting females whose primary nesting beach has been lost (resiliency and redundancy).

Therefore, we have determined that the following PBFs are essential for the loggerhead sea turtle.

PBF 1—Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring

The production of the next generation of loggerhead sea turtles results from a synergism of the effects of the ecological conditions in the foraging area on the energetics of the female and of the beach environmental conditions on

development of the embryos. To be successful, reproduction must occur when environmental conditions support adult activity (e.g., sufficient quality and quantity of food in the foraging area, suitable beach structure for digging, nearby inter-nesting habitat) (Georges

et al.

1993, p. 2). The environmental conditions of the nesting beach must favor embryonic development and survival (i.e., modest temperature fluctuation, low salinity, high humidity, well drained, well aerated) (Mortimer 1982, p. 49; Mortimer 1990, pp. 809, 811). Additionally, the hatchlings must emerge to onshore and offshore conditions that enhance their chances of survival (e.g., less than 100 percent depredation, appropriate offshore currents for dispersal) (Georges

et al.

1993, p. 2).

Terrestrial nesting habitat is the supralittoral zone (area above the spring high tide line) of the beach where oviposition (egg laying), embryonic development, and hatching occur. Loggerheads nest on ocean beaches and occasionally on estuarine shorelines with suitable sand. For a beach to serve as nesting habitat, a nesting turtle must be able to access it. However, anthropogenic structures (e.g., groins, jetties, breakwaters), as well as natural features (e.g., offshore sand bars), can act as barriers or deterrents to adult females attempting to access a beach (Witherington

et al.

2006, entire). Adult females approaching the nesting beach may encounter these structures and either crawl around them, abort nesting for that night, or move to another section of beach to nest. Nests are typically laid between the high tide line and the dune front (Routa 1968, p. 293; Witherington 1986, pp. 16, 27; Hailman and Elowson 1992, p. 5).

Wood and Bjorndal (2000, entire) evaluated four environmental factors (slope, temperature, moisture, and salinity) and found that slope had the greatest influence on loggerhead nest-site selection on a beach in Florida. Loggerheads appear to prefer relatively narrow, steeply sloped, coarse-grained beaches, although nearshore contours may also play a role in nesting beach site selection (Provancha and Ehrhart 1987, p. 42).

Nest sites typically have steeper slopes than other sites on the beach, and steeper slopes usually indicate an area of the beach with a higher elevation (Wood and Bjorndal 2000, p. 126). Wood and Bjorndal (2000, p. 126) speculated that a higher slope could be a signal to turtles that they have reached an elevation where there is an increased probability of hatching success of nests. This is related to the nests being laid high enough on the beach to be less susceptible to repeated and prolonged tidal inundation and erosion. Nests laid at lower beach elevations are subject to a greater risk of repeated and prolonged tidal inundation and erosion, which can cause mortality of incubating egg clutches (Foley

et al.

2006, pp. 38-39). Regardless, loggerheads will use a variety of different nesting substrates and beach slopes for nesting. They will also scatter their nests over the beach, likely to ensure that at least some nest sites will be successful as “placement of nests close to the sea increases the likelihood of inundation and egg loss to erosion whereas placement of nests farther inland increases the likelihood of desiccation, hatchling misorientation, and predation on nesting females, eggs, and hatchlings” (Wood and Bjorndal 2000).

Loggerhead sea turtles spread their reproductive effort both temporally and spatially. Spatial clumping occurs because loggerheads concentrate their nesting to a few primary locations that are augmented by lower density, satellite sites. In addition, a few isolated, low-density sites are known (Miller

et al.

2003, p. 126). Loggerheads show a high degree of nesting site fidelity (Miller

et al.

2003, p. 127). Once an adult female has returned to the region where it hatched and selected a nesting beach, she will tend to re-nest in relatively close proximity (0-5 km (0-3 mi)) during successive nesting attempts within the same and subsequent nesting seasons, although a small percentage of turtles will utilize more distant nesting sites in the general area (Addison 1996, p. 76; Miller

et al.

2003, pp. 127-128). On a regional level, in the southeastern U.S., nesting density can also be influenced by the distance to the Gulf Stream System (Putman

et al.

2010, p. 4). Thus, a high-density nesting beach is the product of the distance from the Gulf Stream, site fidelity and nesting success. A spatiotemporal analysis of the Florida Index Nesting Beaches concluded that fine scale high and low density nesting zones were consistent over the 17-year time series. This suggests that nesting density distribution is a product of both nest site fidelity and specific beach attributes (Witherington

et al.

2009, entire). A high-density nesting beach produces a large number of hatchlings that are recruited to the population resulting in a relatively higher number of females that will return to nest on those same beaches.

Sea turtles must have “deep, clean, relatively loose sand above the high-tide level” for successful nest construction (Hendrickson 1982, p. 54). Sand is classified as material predominately composed of carbonate, quartz, or similar material with a particle size distribution ranging between 0.062 mm and 4.76 mm (0.002 in and 0.187 in) (Wentworth and ASTM classification systems). Sea turtle eggs require a high-humidity substrate that allows for sufficient gas exchange for development (Mortimer 1990, p. 811; Miller 1997, pp. 67-68; Miller

et al.

2003, pp. 129-130). Ackerman (1980, p. 575) found that the rate of growth and mortality of sea turtle embryos is related to respiratory gas exchange with embryonic growth slowing and mortality increasing in environments where gas exchange is reduced below naturally occurring levels.

Moisture conditions in the nest influence incubation period, hatching success, and hatchling size (McGehee 1990, pp. 254-257; Mortimer 1990, p. 811; Carthy

et al.

2003, pp. 147-149). Laboratory experiments have shown that hatching success can be affected by unusually wet or dry hydric conditions (McGehee 1990, pp. 254-255). Proper moisture conditions are necessary for maximum hatching success (McGehee 1990, p. 251). In addition, water availability is known to influence the incubation environment of the embryos of turtles with flexible-shelled eggs by affecting nitrogen excretion (Packard

et al.

1984, pp. 198-201), mobilization of calcium (Packard and Packard 1986, p. 404), mobilization of yolk nutrients (Packard

et al.

1985, p. 571), and energy reserves in the yolk at hatching (Packard

et al.

1988, p. 122).

Loggerhead nests incubate for variable periods of time depending on sand temperatures (Mrosovsky and Yntema 1980, p. 272). The length of the incubation period (commonly measured from the time of egg deposition to hatchling emergence) is inversely related to nest temperature, such that between 26.0 °C and 32.0 °C (78.8 °F and 89.6 °F), a change of 1 °C (33.8 °F) adds or subtracts approximately 5 days (Mrosovsky 1980, p. 531). The warmer the sand surrounding the egg chamber, the faster the embryos develop (Mrosovsky and Yntema 1980, p. 272).

Sand temperatures prevailing during the middle third of the incubation period also determine the gender of hatchling sea turtles (Mrosovsky and Yntema 1980, p. 276; Yntema and Mrosovsky 1982, pp. 1014-1015). The pivotal temperature (i.e., the incubation temperature that produces equal numbers of males and females) in loggerheads is approximately 29.0 °C (84.2 °F) (Limpus

et al.

1983, p. 3; Mrosovsky 1988, pp. 664-666; Marcovaldi

et al.

1997, pp. 758-759).

Incubation temperatures near the upper end of the tolerable range produce only female hatchlings while incubation temperatures near the lower end of the tolerable range produce only male hatchlings.

Loggerhead hatchlings pip (break through the egg shell) and escape from their eggs over a 1- to 3-day interval and move upward and out of the nest over a 2- to 4-day interval (Christens 1990, p. 400). The time from pipping to emergence ranges from 4 to 7 days with an average of 4.1 days (Godfrey and Mrosovsky 1997, p. 583). Hatchlings emerge from their nests en masse almost exclusively at night, likely using decreasing sand temperature as a cue (Hendrickson 1958, pp. 513-514; Mrosovsky 1968, entire; Witherington

et al.

1990, pp. 1166-1167; Moran

et al.

1999, p. 260). After an initial emergence, there may be secondary emergences on subsequent nights (Carr and Ogren 1960, p. 23; Witherington 1986, p. 36; Ernest and Martin 1993, pp. 10-11; Houghton and Hays 2001, p. 134).

Hatchlings use a progression of sea-finding orientation cues to guide their movement from the nest to the marine environments (Lohmann and Lohmann 2003, entire). Hatchlings first use light cues to find the ocean. On natural beaches without artificial lighting, ambient light from the open sky creates a relatively bright horizon compared to the dark silhouette of the dune and vegetation landward of the nest. This contrast guides the hatchlings to the ocean (Daniel and Smith 1947, pp. 414-415; Limpus 1971, p. 387; Salmon

et al.

1992, pp. 72-75; Witherington and Martin 1996, pp. 5-12; Witherington 1997, pp. 311-319). After reaching the surf, hatchlings swim and are swept through the surf zone, after which wave orientation occurs in the nearshore area and later magnetic field orientation as they proceed further toward open water (Lohmann and Lohmann 2003, entire).

Both nesting and hatchling sea turtles are adversely affected by the presence of artificial lighting on or near the beach (Witherington and Martin 1996, pp. 2-5, 12-13). Artificial lighting deters adult female loggerheads from emerging from the ocean to nest, and loggerheads emerging onto a beach abort nesting attempts at a greater frequency in lighted areas (Witherington 1992, pp. 34-37). Because adult females rely on visual brightness cues to find their way back to the ocean after nesting, those turtles that nest on artificially lighted beaches may become disoriented by artificial lighting and have difficulty finding their way back to the ocean (Witherington 1992, p. 38). Hatchling sea turtles have a robust sea-finding behavior guided by visual cues (Mrosovsky and Carr 1967, pp. 228-230; Mrosovsky and Shettleworth 1968, pp. 214-218; Dickerson and Nelson 1989, entire; Witherington and Bjorndal 1991, pp. 146-148; Salmon

et al.

1992, pp. 72-75; Witherington and Martin 1996, pp. 6-12; Lohmann

et al.

1997, pp. 110-116; Lohmann and Lohmann 2003, pp. 45-47). Hatchlings unable to find the ocean, or delayed in reaching it, due to the presence of artificial beachfront lighting are likely to incur high mortality from dehydration, exhaustion, or predation (Carr and Ogren 1960, pp. 33-46; Ehrhart and Witherington 1987, pp. 97-98; Witherington and Martin 1996, pp. 12-13).

Since loggerheads nest on dynamic ocean beaches that may be significantly degraded or lost through natural processes (e.g., erosion) or human-related actions (e.g., development, armoring, lighting), the designation of currently occupied nesting beaches adjacent to the highest density nesting beaches as critical habitat will help ensure the availability of nesting habitat if the high-density nesting beaches are temporarily or permanently lost.

Therefore, based on the information above, we identify extra-tidal or dry sandy beaches from the mean high water (MHW) (see definition at

http://tidesandcurrents.noaa.gov/datum_options.html

) line to the toe of the secondary dune that are capable of supporting a high density of nests or serving as an expansion area for beaches with a high density of nests and well distributed within the four recovery units in which critical habitat is being designated and are representative of total nesting to be a PBF for the species.

PBF 2—Habitats Protected From Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species

Sea turtle nesting habitat is part of the highly dynamic and continually shifting coastal system, which includes oceanfront beaches, barrier islands, and inlets. These geologically dynamic coastal regions are controlled by natural coastal processes or activities that mimic these natural processes, including littoral or longshore drift (the process by which sediments move along the shoreline), onshore and offshore sand transport (natural erosion or accretion cycle), and tides and storm surge. The integrity of the habitat components depends upon daily tidal events; these processes are associated with the formation and movement of barrier islands, inlets, and other coastal landforms throughout the landscape.

There has been considerable loss or degradation of such habitats by humans from development, armoring, sand placement, and other activities to prevent or forestall erosion or inundation from shifting shorelines, as well as coastal storms and sea level rise resulting from climate change. Coastal dynamic processes are anticipated to accelerate due to sea level rise and an increase in frequency and intensity of coastal storms as a result of climate change (Daniels

et al.

1993, pp. 380-384; Fuentes

et al.

2009, pp. 136-137; Poloczanska

et al.

2009, pp. 160-161; Bender

et al.

2010, p. 458).

Since sea turtles evolved in this dynamic system, they are dependent upon these ever-changing features for their continued survival and recovery. Sea turtles require nesting beaches where natural coastal processes or activities that mimic these natural processes will be able to continue well into the future to allow the formation of suitable beaches for nesting (Hawkes

et al.

2009, pp. 139-140; Poloczanska

et al.

2009, p. 169).

Coastal processes happen over a wide range of spatial and temporal scales. Wind, waves, tides, storms, and stream discharge are important driving forces in the coastal zone (Dingler 2005, p. 163). Thus, it is important that, where it can be allowed, the natural processes be maintained or any projects that address erosion or shoreline protection contain measures to reduce negative effects or are temporary in nature.

Therefore, based on the information above, we identify natural coastal processes or activities that mimic these natural processes to be a PBF for this species. It is important that loggerhead nesting beaches are allowed to respond naturally to coastal dynamic processes of erosion and accretion or mimic these processes.

Primary Constituent Elements for the Northwest Atlantic Ocean DPS of the Loggerhead Sea Turtle

Under the Act and its implementing regulations, we are required to identify the PBFs essential to the conservation of the loggerhead sea turtle in areas occupied at the time of listing, focusing on the features' primary constituent elements (PCEs). We consider PCEs to be those specific elements of the PBFs that provide for a species' life-history processes and are essential to the conservation of the species.

Based on our current knowledge of the PBFs and habitat characteristics required to sustain the species' life-history processes, we determine that the terrestrial PCEs specific to the DPS are the extra-tidal or dry sandy beaches

from the mean high-water line to the toe of the secondary dune, which are capable of supporting a high density of nests or serving as an expansion area for beaches with a high density of nests and that are well distributed within each State, or region within a State, and representative of total nesting, consisting of four components:

(1) PCE 1—

Suitable nesting beach habitat that has (a) relatively unimpeded nearshore access from the ocean to the beach for nesting females and from the beach to the ocean for both post-nesting females and hatchlings and (b) is located above mean high water to avoid being inundated frequently by high tides.

(2) PCE 2—

Sand that (a) allows for suitable nest construction, (b) is suitable for facilitating gas diffusion conducive to embryo development, and (c) is able to develop and maintain temperatures and a moisture content conducive to embryo development.

(3) PCE 3—

Suitable nesting beach habitat with sufficient darkness to ensure nesting turtles are not deterred from emerging onto the beach and hatchlings and post-nesting females orient to the sea.

(4) PCE 4—

Natural coastal processes or artificially created or maintained habitat mimicking natural conditions.

This includes artificial habitat types that mimic the natural conditions described in PCEs 1 to 3 above for beach access, nest site selection, nest construction, egg deposition and incubation, and hatchling emergence and movement to the sea. Habitat modification and loss occurs with beach stabilization activities that prevent the natural transfer and erosion and accretion of sediments along the ocean shoreline. Beach stabilization efforts that may impact loggerhead nesting include beach nourishment, beach maintenance, sediment dredging and disposal, inlet channelization, and construction of jetties and other hard structures. However, when sand placement activities result in beach habitat that mimics the natural beach habitat conditions, impacts to sea turtle nesting habitat are minimized.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features essential to the conservation of the species and which may require special management considerations or protection.

For loggerhead sea turtle terrestrial habitat, the features essential to the conservation of this species may require special management considerations or protection to reduce the following threats, which we have grouped into 12 categories:

(1) Recreational beach use (beach cleaning, human presence (e.g., dog beach, special events, piers, and recreational beach equipment));

(2) Beach driving (essential and nonessential off-road vehicles, all-terrain vehicles, and recreational access and use);

(3) Predation (depredation of eggs and hatchlings by native and nonnative predators);

(4) Beach sand placement activities (beach nourishment, beach restoration, inlet sand bypassing, dredge material disposal, dune construction, emergency sand placement after natural disaster, berm construction, and dune and berm planting);

(5) In-water and shoreline alterations (artificial in-water and shoreline stabilization measures (e.g., in-water erosion control structures, such as groins, breakwaters, jetties), inlet relocation, inlet dredging, nearshore dredging, and dredging and deepening channels);

(6) Coastal development (residential and commercial development and associated activities including beach armoring (e.g., sea walls, geotextile tubes, rock revetments, sandbags, emergency temporary armoring); and activities associated with construction, repair, and maintenance of upland structures, stormwater outfalls, and piers);

(7) Lights on land or in the adjacent water, which can deter nesting and disorient hatchlings and nesting females, direct or indirect lighting visible from the nesting beach, including skyglow and bonfires, particularly artificial lighting that has an unshielded lamp and a short wave length (below 540 nm).

(8) Beach erosion (erosion due to aperiodic, short-term weather-related erosion events, such as atmospheric fronts, northeasters, tropical storms, and hurricanes);

(9) Climate change (includes sea level rise);

(10) Habitat obstructions (tree stumps, fallen trees, and other debris on the beach; nearshore sand bars; and ponding along beachfront seaward of dry beach);

(11) Human-caused disasters and response to natural and human-caused disasters (oil spills, oil spill response including beach cleaning and berm construction, and debris cleanup after natural disasters); and

(12) Military testing and training activities (troop presence, pyrotechnics and nighttime lighting, vehicles and amphibious watercraft usage on the beach, helicopter drops and extractions, live fire exercises, and placement and removal of objects on the beach).

The threats described above do not equate to prohibitions of the continued and future implementation of such activities. These primary threats are categories of activities that may impact the habitat and its physical or biological features, and may require special management considerations or protection. Such measures will be considered on a unit by unit basis and will be dependent on what measures are already in place and the potential impacts to the habitat by a proposed Federal action (or an action that is funded or permitted by a Federal agency).

Recreational Beach Use

Beach cleaning:

There is increasing demand in the southeastern U.S., especially in Florida, for beach communities to carry out beach cleaning operations to improve the appearance of beaches for visitors and residents. Beach cleaning occurs on private beaches and on some municipal or county beaches that are used for nesting by loggerhead sea turtles. Beach cleaning activities effectively remove “seaweed, fish, glass, syringes, plastic, cans, cigarettes, shells, stone, wood, and virtually any unwanted debris” (H. Barber and Sons 2012, entire). This can include wrack material (organic material that is washed up onto the beach by surf, tides, and wind), the removal of which reduces the natural sand-trapping abilities of beaches and contributes to their destabilization. As beach cleaning vehicles and equipment move over the sand, sand is displaced downward, lowering the substrate. Although the amount of sand lost due to single sweeping actions may be small, it adds up considerably over a period of years (Neal

et al.

2007, p. 219). In addition, since the beach cleaning vehicles and equipment also inhibit plant growth and open the area to wind erosion, the beach and dunes may become unstable. Beach cleaning “can result in abnormally broad unvegetated zones that are inhospitable to dune formation or plant colonization, thereby enhancing the likelihood of erosion” (Defeo

et al.

2009, p. 4). This is also a concern because dunes and vegetation play an important role in minimizing the impacts of artificial beachfront lighting, which causes disorientation of sea turtle hatchlings and nesting turtles, by creating a barrier that prevents

residential and commercial business lighting from being visible on the beach.

Beach cleaning occurs in a few locations in South Carolina and Alabama, but the most extensive beach cleaning activities occur in Florida, particularly southern Florida. However, a FDEP permit, which includes conditions to protect sea turtles, is required. These permit conditions restrict the timing and nature of beach cleaning to ensure these activities avoid or minimize the potential for impacts to sea turtles and their nesting habitat.

Human presence:

Human presence on the beach at night during the nesting season can reduce the quality of nesting habitat by deterring or disturbing nesting turtles and causing them to avoid otherwise suitable habitat. In addition, human foot traffic can make a beach less suitable for nesting and hatchling emergence by increasing sand compaction and creating obstacles to hatchlings attempting to reach the ocean (Hosier

et al.

1981, p. 160).

Some beach communities, local governments, and State and Federal lands have management plans or agreements that include addressing human disturbance to minimize impacts to nesting and hatchling loggerhead sea turtles. Other beach communities and Federal, State, and local governments have addressed human disturbance and presence on the beach with generally successful “Share the Beach” educational campaigns. The educational message in the campaigns focuses on beach user behavior when encountering a turtle on the beach—enjoy the experience but do not disturb the turtle.

Recreational beach equipment:

The use and storage of lounge chairs, cabanas, umbrellas, catamarans, and other types of recreational equipment on the beach at night can also make otherwise suitable nesting habitat unsuitable by hampering or deterring nesting by adult females and trapping or impeding hatchlings during their nest-to-sea migration. The documentation of non-nesting emergences (also referred to as false crawls) at these obstacles is becoming increasingly common as more recreational beach equipment is left on the beach at night. Sobel (2002, p. 311) describes nesting turtles being deterred by wooden lounge chairs that prevented access to the upper beach.

Some beach communities, local governments, and State and Federal lands have management plans, agreements, or ordinances that address recreational equipment on the beach to minimize impacts to nesting and hatchling loggerhead sea turtles. Other beach communities and Federal, State, and local governments address recreational beach equipment with generally successful “Leave No Trace” and “Share the Beach” educational campaigns. The educational message in the campaigns focuses on removing recreational equipment from the nesting beach each night during the nesting season.

Beach Driving

Beach driving has been found to reduce the quality of loggerhead nesting habitat in several ways. In the southeastern U.S., vehicle ruts on the beach have been found to prevent or impede hatchlings from reaching the ocean following emergence from the nest (Hosier

et al.

1981, p. 160; Cox

et al.

1994, p. 27; Hughes and Caine 1994, p. 237). Sand compaction by vehicles has been found to hinder nest construction and hatchling emergence from nests (Mann 1977, p. 96). Vehicle lights and vehicle movement on the beach after dark results in reduced habitat suitability, which can deter females from nesting and disorient hatchlings. If driving occurs at night, sea turtles could be run over and injured. Additionally, vehicle traffic on nesting beaches contributes to erosion, especially during high tides or on narrow beaches where driving is concentrated on the high beach and foredune.

Beach driving is prohibited on the majority of nesting beaches in the southeastern U.S. by law, regulation, management plan, or agreement. However, some vehicular driving is still allowed on private, local, State, and Federal beaches for recreation, commercial, or beach and natural resource management activities. In 1985, the Florida Legislature severely restricted vehicular driving on Florida's beaches, except for cleanup, repair, or public safety. Five counties were exempted from the legislation and are allowed to continue vehicular access on coastal beaches due to the availability of less than 50 percent of its peak user demand for off-beach parking. The counties affected by this exception are Volusia, St. Johns, Gulf, Nassau, and Flagler Counties, as well as Walton County, which allows limited vehicular access on beaches for boat launching. Volusia and St. Johns Counties developed HCPs that minimize and mitigate the impacts of County-regulated driving and USFWS issued incidental take permits under section 10(a)(1)(B) of the Act. Gulf County has submitted an HCP to the USFWS in conjunction with an application for a section 10(a)(1)(B) permit that minimizes and mitigates the impacts of County-regulated driving on the beach.

Predation

Predation of sea turtle eggs and hatchlings by native and nonnative species occurs on almost all nesting beaches. Predation by a variety of predators can considerably decrease sea turtle nest hatching success. The most common predators in the southeastern U.S. are ghost crabs (

Ocypode quadrata

), raccoons (

Procyon lotor

), feral hogs (

Sus scrofa

), foxes (

Urocyon cinereoargenteus

and

Vulpes vulpes

), coyotes (

Canis latrans

), armadillos (

Dasypus novemcinctus

), and fire ants (

Solenopsis invicta

) (Stancyk 1982, p. 145; Dodd 1988, p. 48). In the absence of nest protection programs in a number of locations throughout the southeastern U.S., raccoons may depredate up to 96 percent of all nests deposited on a beach (Davis and Whiting 1977, p. 20; Stancyk

et al.

1980, p. 290; Talbert

et al.

1980, p. 712; Hopkins and Murphy 1981, p. 67; Schroeder 1981, p. 35; Labisky

et al.

1986, pp. 14-15). In addition, nesting turtles harassed by predators (e.g., coyotes, red foxes) on the beach may abort nesting attempts (Hope 2012, pers. comm.). Thus, the presence of predators can affect the suitability of nesting habitat.

The longest standing beach management programs in the southeastern U.S. have focused on reducing the destruction of nests by natural and introduced predators. Most major nesting beaches in the southeastern U.S. employ some type of lethal (trapping, hunting) or nonlethal (screen, cage) control of mammalian predators to reduce nest loss. Overall, nest protection activities have substantially reduced loggerhead nest depredations, although the magnitude of the reduction has not been quantified.

Beach Sand Placement Activities

Substantial amounts of sand are deposited along Gulf of Mexico and Atlantic Ocean beaches to protect coastal properties in anticipation of preventing erosion and what otherwise would be considered natural processes of overwash and island migration. Constructed beaches tend to differ from natural beaches in several important ways for sea turtles. They are typically wider, flatter, and more compact, and the sediments are moister than those on natural beaches (Nelson

et al.

1987, p. 51; Ackerman

et al.

1991, p. 22; Ernest and Martin 1999, pp. 8-9). On severely eroded sections of beach, where little or no suitable nesting habitat previously existed, sand placement can result in increased nesting (Ernest and Martin 1999, p. 37). The placement of sand on a beach with reduced dry foredune

habitat may increase sea turtle nesting habitat if the placed sand is highly compatible (i.e., grain size, shape, color, etc.) with naturally occurring beach sediments in the area, and compaction and escarpment remediation measures are incorporated into the project. In addition, a nourished beach that is designed and constructed to mimic a natural beach system may benefit sea turtles more than an eroding beach it replaces. However, beach sand placement projects conducted under the USFWS's SPBO for the USACE planning and regulatory sand placement activities (including post-disaster sand placement activities) in Florida and other individual biological opinions throughout the loggerhead's nesting range include required terms and conditions that minimize incidental take of turtles.

There are, however, a few important ephemeral impacts associated with beach sand placement activities. In most cases, a significantly larger proportion of turtles emerging on engineered beaches abandon their nesting attempts than turtles emerging on natural or pre-nourished beaches, even though more nesting habitat is available (Trindell

et al.

1998, p. 82; Ernest and Martin 1999, pp. 47-49; Herren 1999, p. 44; Brock

et al.

2009, p. 302), with nesting success approximately 10 to 34 percent lower on nourished beaches than on control beaches during the first year post-nourishment. This reduction in nesting success is most pronounced during the first year following project construction and is most likely the result of changes in physical beach characteristics (beach profile, sediment grain size, beach compaction, frequency and extent of escarpments) associated with the nourishment project (Ernest and Martin 1999, p. 48; Mota 2009, p. 129). During the first post-construction year, the time required for turtles to excavate an egg chamber on untilled, hard-packed sands increases significantly relative to natural beach conditions. Also during the first post-construction year, nests on nourished beaches are deposited significantly more seaward of the toe of the dune than nests on natural beaches. More nests are washed out on the wide, flat beaches of the nourished treatments than on the narrower steeply sloped natural beaches. This phenomenon may persist through the second post-construction year and result from the placement of nests near the seaward edge of the beach berm where dramatic profile changes, caused by erosion and scarping, occur as the beach equilibrates to a more natural contour (Ernest and Martin 1999, p. 85).

In-Water and Shoreline Alterations

Many navigable mainland or barrier island tidal inlets along the Atlantic and Gulf of Mexico coasts are stabilized with jetties or groins. Breakwaters placed parallel to the shore have been used as well. Jetties are built perpendicular to the shoreline and extend through the entire nearshore zone and past the breaker zone to prevent or decrease sand deposition in the channel (Kaufman and Pilkey 1979, pp. 193-195). Groins are also shore-perpendicular structures that are designed to trap sand that would otherwise be transported by longshore currents and can cause downdrift erosion (Kaufman and Pilkey 1979, pp. 193-195).

These in-water structures have profound effects on adjacent beaches (Kaufman and Pilkey 1979, p. 194). Jetties and groins placed to stabilize a beach or inlet prevent normal sand transport, resulting in accretion of sand on updrift beaches and acceleration of beach erosion downdrift of the structures (Komar 1983, pp. 203-204; Pilkey

et al.

1984, p. 44). Witherington

et al.

(2005, p. 356) found a significant negative relationship between loggerhead nesting density and distance from the nearest of 17 ocean inlets on the Atlantic coast of Florida. The effect of inlets in lowering nesting density was observed both updrift and downdrift of the inlets, leading researchers to propose that beach instability from both erosion and accretion may discourage loggerhead nesting.

Following construction, the presence of groins and jetties may interfere with nesting turtle access to the beach, result in a change in beach profile and width (downdrift erosion, loss of sandy berms, and escarpment formation), trap hatchlings, and concentrate predatory fishes, resulting in higher probabilities of hatchling predation. In addition to decreasing nesting habitat suitability, construction or repair of groins and jetties during the nesting season may result in the destruction of nests, disturbance of females attempting to nest, and disorientation of emerging hatchlings from project lighting (Kaufman and Pilkey 1979, p. 194; Komar 1983, p. 191; National Research Council 1987, pp. 73-74; Howard and Davis 1999, pp. 6-7).

However, groins and jetties constructed in appropriate high erosion areas, or to offset the effects of shoreline armoring, may reestablish a beach where none currently exists, stabilize the beach in rapidly eroding areas and reduce the potential for escarpment formation, reduce destruction of nests from erosion, and reduce the need for future sand placement events by extending the interval between sand placement events. USFWS includes terms and conditions in its biological opinions for groin and jetty construction projects to eliminate or reduce impacts to nesting and hatchling sea turtles, sea turtle nests, and sea turtle nesting habitat.

Nesting beach may be lost due to the dredging of spits that have accreted and become a hindrance to navigation. The sand may not be lost from the system if appropriate best management practices are used. For example, sand elsewhere in the system will continue to play a role in downdrift habitat protection.

Coastal Development

Coastal development not only causes the loss and degradation of suitable nesting habitat, but can result in the disruption of powerful coastal processes, accelerating erosion and interrupting the natural shoreline migration. This may in turn cause the need to protect upland structures and infrastructure by armoring, which causes changes in, additional loss of, or impact to the remaining sea turtle habitat.

In the southeastern U.S., numerous armoring or erosion control structures (e.g., bulkheads, seawalls, soil retaining walls, rock revetments, sandbags, geotextile tubes) that create barriers to nesting have been constructed to protect upland residential and commercial development. Armoring is any rigid structure placed parallel to the shoreline on the upper beach to prevent both landward retreat of the shoreline and inundation or loss of upland property by flooding and wave action (Kraus and McDougal 1996, p. 692). Although armoring structures may provide short-term protection to beachfront property, they do little to promote or maintain sandy beaches used by loggerhead sea turtles for nesting. These structures influence natural shoreline processes and the physical beach environment, but the effects are not well understood. However, it is clear that armoring structures prevent long-term recovery of the beach and dune system (i.e., building of the back beach) by physically prohibiting dune formation from wave uprush and wind-blown sand. The proportion of coastline that is armored is approximately 3 percent (9 km (5.6 mi)) in North Carolina (Godfrey 2013, pers. comm.), 12 percent (29 km (18.0 mi)) in South Carolina (Griffin 2009, pers. comm.), 9 percent (14 km (8.7 mi)) in Georgia (Dodd 2013, pers. comm.), 18 percent (239 km (148.4 mi)) in Florida (Schroeder and Mosier 2000, p. 291), 6 percent (7.5 km (4.7 mi)) in

Alabama (Morton and Peterson 2005, entire), and 0 percent along the Mississippi barrier islands (Morton and Peterson 2005, entire).

In addition to coastal armoring, there are a variety of other coastal construction activities that may affect sea turtles and their nesting habitat. These include construction, repair, and maintenance of upland structures and dune crossovers; installation of utility cables; installation and repair of public infrastructure (such as coastal highways and emergency evacuation routes); and construction equipment and lighting associated with any of these activities. Many of these activities alter nesting habitat, as well as directly harm adults, nests, and hatchlings. Most direct construction-related impacts can be avoided by requiring that nonemergency activities be performed outside of the nesting and hatching season. However, indirect effects can also result from the post-construction presence of structures on the beach. The presence of these structures may cause adult females to return to the ocean without nesting, deposit their nests lower on the beach where they are more susceptible to frequent and prolonged tidal inundation, or select less suitable nesting sites.

Coastal development also contributes to habitat degradation by increasing light pollution. Both nesting and hatchling sea turtles are adversely affected by the presence of artificial lighting on or near the beach (Witherington and Martin 1996, pp. 2-5). See the threat category for

Artificial lighting

below for additional information.

Stormwater and other water source runoff from coastal development, including beachfront parking lots, building rooftops, roads, decks, and draining swimming pools adjacent to the beach, is frequently discharged directly onto Northwest Atlantic beaches and dunes either by sheet flow, through stormwater collection system outfalls, or through small-diameter pipes. These outfalls create localized erosion channels, prevent natural dune establishment, and wash out sea turtle nests (FWC, unpublished data).

Artificial Lighting

Experimental studies have shown that artificial lighting deters adult female turtles from emerging from the ocean to nest (Witherington 1992, pp. 36-38). Witherington (1986, p. 71) also found that loggerheads aborted nesting attempts at a greater frequency in lighted areas. In addition, because adult females rely on visual brightness cues to find their way back to the ocean after nesting, those turtles that nest on lighted beaches may become disoriented by artificial lighting and have difficulty finding their way back to the ocean. Although loggerhead turtles prefer dark beaches for nesting, many do nest in lighted areas. In doing so, they place the lives of their offspring at risk as artificial lighting can impair the ability of hatchlings to properly orient to the ocean once they leave their nests (Witherington and Martin 1996, pp. 7-13). Hatchlings, unable to find the ocean or delayed in reaching it, are likely to incur high mortality from dehydration, exhaustion, or predation (Carr and Ogren 1960, p. 23; Ehrhart and Witherington 1987, pp. 66-67; Witherington and Martin 1996, p. 11).

Based on hatchling orientation index surveys at nests located at 23 representative beaches in 6 counties around Florida in 1993 and 1994, Witherington

et al.

(1996, entire) found that, by county, approximately 10 to 30 percent of nests showed evidence of hatchlings disoriented by lighting. From this survey and from measures of hatchling production (FWC, unpublished data), the actual number of hatchlings disoriented by lighting in Florida is likely in the hundreds of thousands per year. Mortality of disorie

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