Endangered and Threatened Species: Final Rulemaking To Revise Critical Habitat for Hawaiian Monk Seals

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 110207102-5657-03]

RIN 0648-BA81

Endangered and Threatened Species: Final Rulemaking To Revise Critical Habitat for Hawaiian Monk Seals

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

We, the National Marine Fisheries Service (NMFS), issue a final rule to revise the critical habitat for the Hawaiian monk seal (

Neomonachus schauinslandi

) pursuant to the Endangered Species Act. Specific areas for designation include sixteen occupied areas within the range of the species: ten areas in the Northwestern Hawaiian Islands (NWHI) and six in the main Hawaiian Islands (MHI). These areas contain one or a combination of habitat types: Preferred pupping and nursing areas, significant haul-out areas, and/or marine foraging areas, that will support conservation for the species. Specific areas in the NWHI include all beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and including marine habitat through the water's edge, including the seafloor and all subsurface waters and marine habitat within 10 meters (m) of the seafloor, out to the 200-m depth contour line around the following 10 areas: Kure Atoll, Midway Islands, Pearl and Hermes Reef, Lisianski Island, Laysan Island, Maro Reef, Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa Island. Specific areas in the MHI include marine habitat from the 200-m depth contour line, including the seafloor and all subsurface waters and marine habitat within 10 m of the seafloor, through the water's edge 5 m into the terrestrial environment from the shoreline between identified boundary points on the islands of: Kaula, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii. In areas where critical habitat does not extend inland, the designation ends at a line that marks mean lower low water. Some terrestrial areas in existence prior to the effective date of the rule within the specific areas lack the essential features of Hawaiian monk seal critical habitat because these areas are inaccessible to seals for hauling out (such as cliffs) or lack the natural areas necessary to support monk seal conservation (such as hardened harbors, shorelines or buildings) and therefore do not meet the definition of critical habitat and are not included in the designation. In developing this final rule we considered public and peer review comments, as well as economic impacts and impacts to national security. We have excluded four areas because the national security benefits of exclusion outweigh the benefits of inclusion, and exclusion will not result in extinction of the species. Additionally several areas are precluded from designation under section 4(a)(3) of the ESA because they are managed under Integrated Natural Resource Management Plans that we have found provide a benefit to Hawaiian monk seals.

DATES:

This final rule becomes effective September 21, 2015.

ADDRESSES:

The final rule, maps, and other supporting documents (Economic Report, Endangered Species Act (ESA) Section 4(b)(2) Report, and Biological Report) can be found on the NMFS Pacific Island Region's Web site at

http://www.fpir.noaa.gov/PRD/prd_critical_habitat.html.

FOR FURTHER INFORMATION CONTACT:

Jean Higgins, NMFS, Pacific Islands Regional Office, (808) 725-5151; Susan Pultz, NMFS, Pacific Islands Regional Office, (808) 725-5150; or Dwayne Meadows, NMFS, Office of Protected Resources (301) 427-8403.

SUPPLEMENTARY INFORMATION:

Background

The Hawaiian monk seal (

Neomonachus schauinslandi

) was listed as endangered throughout its range under the ESA in 1976 (41 FR 51611; November 23, 1976). In 1986, critical habitat for the Hawaiian monk seal was designated at all beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 10 fathoms (18.3 m) around Kure Atoll, Midway Islands (except Sand Island), Pearl and Hermes Reef, Lisianski Island, Laysan Island, Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa Island in the NWHI (51 FR 16047; April 30, 1986). In 1988, critical habitat was expanded to include Maro Reef and waters around previously designated areas out to the 20 fathom (36.6 m) isobath (53 FR 18988; May 26, 1988).

On July 9, 2008, we received a petition dated July 2, 2008, from the Center for Biological Diversity, Kahea, and the Ocean Conservancy (Petitioners) to revise the Hawaiian monk seal critical habitat designation (Center for Biological Diversity 2008) under the ESA. The Petitioners sought to revise critical habitat by adding the following areas in the MHI: Key beach areas; sand spits and islets, including all beach crest vegetation to its deepest extent inland; lagoon waters; inner reef waters; and ocean waters out to a depth of 200 m. In addition, the Petitioners requested that designated critical habitat in the NWHI be extended to include Sand Island at Midway, as well as ocean waters out to a depth of 500 m (Center for Biological Diversity 2008).

On October 3, 2008, we announced a 90-day finding that the petition presented substantial scientific information indicating that a revision to the current critical habitat designation may be warranted (73 FR 57583; October 3, 2008). On June 12, 2009, in the 12-month finding, we announced that a revision to critical habitat is warranted because of new information available regarding habitat use by the Hawaiian monk seal, and we announced our intention to proceed toward a proposed rule (74 FR 27988). Additionally, in the 12-month finding we identified the range of the species as throughout the Hawaiian Archipelago and Johnston Atoll.

Following the 12-month finding, we convened a critical habitat review team (CHRT) to assist in the assessment and evaluation of critical habitat. Based on the recommendations provided in the draft biological report, the initial Regulatory Flexibility Analysis and section 4(b)(2) analysis (which considers exclusions to critical habitat based on economic, national security and other relevant impacts), we published a proposed rule on June 2, 2011 (76 FR 32026) to designate sixteen specific areas in the Hawaiian archipelago as Hawaiian monk seal critical habitat. In accordance with the definition of critical habitat under the ESA, each of these sixteen areas contained physical or biological features essential to conservation of the species, and which may require special management consideration or protections. In the proposed rule, we described the physical or biological features that support the life history needs of the species as essential features, which included (1) areas with characteristics preferred by monk seals for pupping and nursing, (2) shallow, sheltered aquatic areas adjacent to coastal locations preferred by monk

seals for pupping and nursing, (3) marine areas from 0 to 500 m in depth preferred by juvenile and adult monk seals for foraging, (4) areas with low levels of anthropogenic disturbance, (5) marine areas with adequate prey quantity and quality, and (6) significant areas used by monk seals for hauling out, resting, or molting. We requested public comments through August 31, 2011, on the proposed designation and then published a notification of six public hearings (76 FR 41446; July 14, 2011). In response to requests, we reopened the public comment period for an additional 60 days and accepted all comments received from June 2, 2011 through January 6, 2012 (76 FR 68710l; November 7, 2011).

During the public comment periods, we received comments that indicated that substantial disagreement existed over the identification of the essential features in the MHI. On June 25, 2012, we announced a 6-month extension for the final revision of critical habitat for the Hawaiian monk seal and committed to evaluating information provided through comments and additional information from over 20 GPS-equipped cellular transmitter tags deployed on seals in the MHI (new MHI GPS tracking information) to aid in resolving the disagreement (77 FR 37867).

The CHRT was reconvened to review comments, information used to support the proposed rule, and newly available information, including new MHI GPS tracking information. This final rule describes the final critical habitat designation, including the responses to comments, CHRT recommendations, a summary of changes from the proposed rule, supporting information on Hawaiian monk seal biology, distribution, and habitat use, and the methods used to develop the final designation.

For a complete description of our proposed action, including the natural history of the Hawaiian monk seal, we refer the reader to the proposed rule (76 FR 32026; June 2, 2011).

Statutory and Regulatory Background for Critical Habitat

The ESA defines critical habitat under section 3(5)(A) as: “(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . , on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.”

Section 4(a)(3) of the ESA precludes military land from designation, where that land is covered by an Integrated Natural Resource Management Plan that the Secretary has found in writing will benefit the listed species.

Section 4(b)(2) of the ESA requires us to designate critical habitat for threatened and endangered species “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” This section also grants the Secretary of Commerce (Secretary) discretion to exclude any area from critical habitat if she determines “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” However, the Secretary may not exclude areas that “will result in the extinction of the species.”

Once critical habitat is designated, section 7 of the ESA requires Federal agencies to insure they do not fund, authorize, or carry out any actions that will destroy or adversely modify that habitat. This requirement is additional to the section 7 requirement that Federal agencies insure their actions do not jeopardize the continued existence of listed species.

Summary of Changes From the Proposed Critical Habitat Designation

After considering public comments received and updating the best scientific information available, we have (1) eliminated “areas with low levels of anthropogenic disturbance” as an essential feature; (2) combined the marine and terrestrial essential features that describe Hawaiian monk seal reproduction and rearing sites to clarify how these habitats are interconnected in supporting Hawaiian monk seal conservation; (3) clarified the location of pupping and nursing areas essential to Hawaiian monk seals by providing further description for the term “preferred;” (4) clarified the location of haul-out areas essential to Hawaiian monk seals by providing further description for the term “significant;” (5) combined the marine areas and prey features that support Hawaiian monk seal foraging areas to describe better how these features are interrelated; (6) refined the boundaries for depth and height of marine foraging areas to describe better those areas that support the foraging ecology and conservation of the Hawaiian monk seal; (7) refined the description of critical habitat areas in the NWHI to eliminate areas that are inaccessible to seals or manmade structures that do not support monk seal conservation, such as hardened harbors and shorelines or buildings, and (8) refined the boundaries of preferred pupping and nursing areas and significant haul-out habitats. These changes from the proposed rule are discussed further below.

1. The essential feature “areas with low levels of anthropogenic disturbance” was included in the proposed rule to protect habitat areas used by Hawaiian monk seals, which are sensitive to disturbance caused by human activity. Public comments received about this essential feature requested clarification about what role this feature plays in Hawaiian monk seal ecology; some noted that this feature does not appear to align with monk seal behavior or habitat use in the MHI, and other comments questioned whether development or access would be restricted in areas with low anthropogenic disturbance that are not used by seals. Such comments triggered a reevaluation of this proposed essential feature. To consider the significance of this feature to Hawaiian monk seal conservation the CHRT re-examined the information that was used to support this feature in the NWHI and considered the information available regarding monk seal habitat use in the MHI. The historical examples from military settlement in the NWHI highlight that chronic disturbance in sensitive monk seal habitat, such as pupping and nursing sites or important haul-out areas, can alter the conservation value of these areas. In the proposed rule we also noted that three aerial surveys of the MHI in 2000 and 2001 indicate that seals showed a preference for more remote areas (Baker and Johanos 2004). However, since 2004, seal use of the MHI has continued to increase and review of the more recent sighting and cell phone tracking data indicate that monk seals regularly haul-out in both highly trafficked and relatively remote areas of the MHI. For example, Kaena point experiences relatively low levels of human activity in comparison with White Plains Beach, yet both of these areas remain important haul-out sites for seals on Oahu. Upon further consideration of available information, the CHRT was unable to define the service or function that “areas with low levels of anthropogenic disturbance” would provide to Hawaiian monk seal conservation as a singular or stand-alone feature. We agree that this feature does not appear to provide a service or function for monk seal conservation, which would support identification as

an independent essential feature. We have removed this as an essential feature for monk seal conservation, but recognize that this may be a characteristic important to some preferred pupping and nursing areas or significant haul out areas.

2. The proposed rule identified two essential features that support reproduction: “areas with characteristics preferred by monk seals for pupping and nursing” and “shallow sheltered aquatic areas adjacent to coastal locations preferred by monk seals for pupping and nursing.” Public comments expressed criticism about the description of where these two areas exist and the role these two areas play in supporting Hawaiian monk seals. Comments suggested that we should identify known areas of significance for pupping and nursing, because these areas are limited based on available information and that a more precise designation would ensure that protections are focused on those important areas. Other comments suggested that “shallow, sheltered aquatic areas” could be found throughout the State and that the current description was insufficient to identify areas that were important to Hawaiian monk seal reproduction. The CHRT determined that these two proposed essential features describe a terrestrial and marine component of a single area that supports Hawaiian monk seal reproduction and growth. The CHRT recommended, and we agreed, that combining these two features would better identify these areas as interconnected habitats that support Hawaiian monk seal mothers and pups through birth, lactation and weaning. The revised feature is now described as, “Terrestrial areas and the adjacent shallow sheltered aquatic areas with characteristics preferred by monk seals for pupping and nursing.”

3. After considering public comments, the CHRT also examined how “preferred” pupping areas may be better defined for the species. As identified in the proposed rule (76 FR 32026; June 2, 2011), monk seals generally return to the same site year after year for birthing, and those sites with characteristics including a shallow and sheltered area protected from predators and weather, may draw multiple females to the same site. Still, some females prefer to use more solitary locations for pupping, returning to these sites multiple times throughout their reproductive lifetime to birth and rear pups. The CHRT determined that both of these types of favored reproductive sites remain essential to Hawaiian monk seal conservation to support reproduction and population growth. After considering public comments requesting a more accurate location for these areas in the MHI, the CHRT reviewed pupping data from throughout the range to consider how these two types of reproductive sites may be best described to match the description from the proposed rule.

In the NWHI, terrestrial pupping areas are well established and over 30 years of data identify pupping areas on the various islands and islets. Records indicate that some pupping areas support multiple mothers in any given year, while other pupping areas may support a single female for multiple years and/or multiple females spanning multiple generations. In the MHI, pupping habitat has not been clearly established for all the specific areas. For example, data indicate that some MHI mothers have given birth in one location and have chosen an alternative birth site in subsequent years. To avoid applying unnecessary protections to areas that monk seals found unsuitable for repeat pupping, the CHRT recommended that preferred pupping and nursing areas be defined as those areas where multiple females have given birth or where a single female has given birth in more than one year. This allows for the protection of areas that are used by multiple mothers year after year, and protection of those areas where individual females have returned to a more solitary pupping site. We agree that this description of “preferred” provides clarity to the public about which areas are likely to support Hawaiian monk seal conservation and also helps to conserve sufficient habitat to support Hawaiian monk seal recovery.

4. The proposed rule incorporated all coastal terrestrial areas from the water's edge to 5 m inland of the shoreline in the MHI, with the exception of those areas that are manmade structures (

e.g.,

harbors or seawalls) and/or inaccessible to seals (

e.g.,

cliffs), to ensure that all existing “significant haul-out areas” would be captured in the designation. We relied upon this approach, rather than using voluntary MHI monk seal data to identify favored haul-out areas, due to concerns we expressed in the proposed rule regarding potential biases associated with the collection of MHI voluntary monk seal sighting information (

i.e.,

highly trafficked areas by humans are likely to report monk seal sightings more often than remote areas that seals may still use) and the limited information available regarding habitat use in areas with a small number of seals (76 FR 32026; June 2, 2011). Public comments expressed criticism of this expansive approach. In particular, comments pertaining to terrestrial essential features suggested that the 2011 proposed designation was too broad, and that all areas of MHI coastline could not possess the features “essential” to Hawaiian monk seal conservation. Some comments suggested that there was insufficient analysis to support the identification of all areas of coastline for the designation, as monk seal habitat use indicates that not all coastlines in the MHI can be accessed by seals and therefore not all habitat should be considered essential. Other comments suggested that the analysis was insufficient because the designation does not match known habitat use patterns of Hawaiian monk seals in various areas of the MHI, nor does it identify habitat that will support recovery of the population.

In reviewing these comments and considering the available data, the CHRT agreed that the 2011 proposal was too broad for stakeholders to be able to distinguish those features that are essential to Hawaiian monk seal conservation from other areas of coastline, and that available data suggest that significant haul-out areas and preferred pupping areas may be described with more precision. The CHRT acknowledged that, although Hawaiian monk seals may use many accessible areas of coastline to haul-out, not all haul-out areas of the MHI are of the same value to Hawaiian monk seal conservation and not all areas would be described as essential. To be responsive to comments requesting more precision in identifying the essential features and to use the best available information for describing the essential features, the CHRT re-evaluated information relied upon in the proposed rule to describe significant haul-out areas. As indicated in the proposed rule, Hawaiian monk seals do not congregate in large numbers at particular sites like some other pinnipeds such as sea lions. However, Hawaiian monk seals reliably return to stretches of coastline that are favored for resting, molting, and socializing, and multiple individuals are likely to use the same stretches of coastline around a particular island. Identifying the combination of characteristics that are common to stretches of coastline that monk seals favor for hauling out is difficult, because habitat characteristics are not uniform from one favored haul-out area to another. For example, the relatively remote stretches of beach along Laau point on Molokai do not display all of the same characteristics as the beaches along Oahu's busy southwestern shoreline; however, both

of these areas are consistently used by monk seals for hauling out and are recognized by scientists, managers, and the public as important haul-out habitat. For this reason, the CHRT determined that stretches of coastline that maintain a combination of characteristics favored by monk seals for resting, molting and socializing may best be identified by evaluating actual monk seal usage of each island and using the frequency of use as a proxy for identifying those areas with significant characteristics. Since the June 2, 2011 publication of the proposed rule (76 FR 32026), the number of monk seals instrumented with cell phone tracking devices has doubled and this information supplements information regarding MHI monk seal habitat use in the MHI that was available at the time that the proposed areas were delineated. Spatial comparisons of these available data sets demonstrate that the voluntary sighting data successfully captures areas frequented by monk seals throughout the MHI, alleviating our previous concerns that significant haul-out areas may be missed due to the remote nature of a particular site (or the lack of human reporting). To describe better where significant haul-out areas exist using the available data, the CHRT reviewed spatial patterns of monk seal locations by mapping available cell phone tracking data, the past voluntary sighting information, and aerial survey data from across the MHI. The mapped data displayed where seal sightings were concentrated and allowed the CHRT to evaluate areas of higher use and importance to Hawaiian monk seals.

The CHRT determined that the number of seals using each particular island varies; therefore, the importance of particular habitats also varies from island to island. To account for this variation and to ensure that significant areas used by monk seals for hauling out and thus essential to monk seal conservation were included for each specific area, the CHRT defined “significant” as those areas where monk seals use is at least 10 percent or greater than the area(s) with highest seal use for each island. This description of significant haul-out areas allows for inclusion of contiguous stretches of coastline regularly used by monk seals where experts agree that monk seals are more likely to haul-out, accounts for data that may be underrepresented in frequency due to a lower likelihood of reporting, and, in areas with lower seal numbers, provides sufficient habitat for monk seals to use as the population expands to meet recovery goals. A detailed description of the evaluation of the information used to refine the description of this essential feature may also be found in the biological report (NMFS 2014).

5. Comments raised questions regarding how foraging areas were described in the proposed rule. First, comments from Hawaii's Department of Land and Natural Resources (DLNR) identified that “marine areas from 0 to 500 m in depth preferred by juvenile and adult monk seals for foraging” and “marine areas with adequate prey quantity and quality” are two features describing the same type of area and should be combined. Having reviewed this comment, the CHRT acknowledged, and we agree, that these features were both proposed to provide protection for monk seal foraging areas which support prey items important to Hawaiian monk seal conservation. After considering this comment and to provide clarity regarding those features that support Hawaiian monk seal conservation, we have combined these two overlapping features into a single feature that describes important Hawaiian monk seal foraging areas.

6. Numerous comments expressed disagreement with the scope of the designation in marine habitat, stating that the designation was too broad and did not adequately take into account the best available information about monk seal foraging in the MHI to describe those foraging depths that are “essential” to the conservation of the species. Comments questioned the depths at which Hawaiian monk seals forage, and the types of activities that may affect Hawaiian monk seal foraging features.

With regard to the depths at which monk seals forage, one commenter suggested that the current information indicates that depths out to 200 m are the primary foraging habitats for monk seals in the MHI, not 500 m in depth. In addition, new MHI cell phone tracking information that supplemented information examined for the proposed rule indicates that deeper areas are used less frequently by monk seals in the MHI. This suggests that deeper foraging areas may not play as significant a role in Hawaiian monk seal conservation as previously thought. After considering these comments, the CHRT reviewed the information from the proposed rule and information received since 2011 from seals tracked throughout the MHI to re-evaluate the information that describes marine foraging areas that are essential to Hawaiian monk seal conservation.

As noted in the proposed rule, Hawaiian monk seals exhibit individual foraging preferences and capabilities (Iverson 2006), but the species has adapted to the low productivity of a tropical marine ecosystem by feeding on a wide variety of bottom-associated prey species across a wide expanse of habitat. The 2011 proposed rule relied on maximum dive depths demonstrated in the NWHI and limited diving data available from the MHI to identify the outer boundaries of where Hawaiian monk seal foraging areas exist. The proposed designation focused on incorporating adequate areas to support the conservation of a food-limited population in the NWHI and a growing population in the MHI.

In the NWHI the best available information indicates that monk seals are regularly feeding at depths that are deeper than 20 fathoms (approximately 37 m), the depth boundary for the 1988 critical habitat designation. From 1996 to 2000 a total of 147 seals were tracked for several months at a time in the NWHI using satellite-linked radio transmitters (Stewart

et al.

2006). Additionally, at French Frigate Shoals, seals were outfitted for shorter time periods with Crittercams (mounted cameras) to provide more information about monk seal foraging ecology. Dive data throughout the NWHI indicate that seals spend a great deal of time in waters less than 40 m, but that in most areas seals are regularly diving at depths greater than 40 m, sometimes even exceeding depths of 550 m (Stewart

et al.

2006). From Crittercam observations, Parrish

et al.

(2000) describe greater than 50 percent of seal behavior as sleeping or socially interacting and note that these behaviors are exhibited at depths as deep as 80 m. While seals with Crittercams displayed active foraging behavior at various depths, at deeper depths behaviors were focused on foraging,

i.e.,

seals spent more time actively searching along or near the bottom for prey at these depths (Parrish

et al.

2000). Specifically, Parrish

et al.

(2000) observed most feeding between 60-100 m at French Frigate Shoals, with seals focusing on the uniform habitat found along the slopes of the atoll and neighboring banks. A low percentage of dives also occurred in the subphotic habitats greater than 300 m. Across the NWHI, Stewart

et al.

(2006) described various modes represented in the dive data that suggest depth ranges where foraging efforts may be focused, but describe a majority of diving behavior occurring at depths less than 150 m. The deeper diving behavior was exhibited at French Frigate Shoals, Kure, Midway, Lisianski, and Laysan, where seals displayed various modes at deeper depth ranges, many of which occurred

at less than 200 m in depth (Abernathy 1999, Stewart and Yochem 2004a, Stewart and Yochem 2004b). However, modes also occurred at 200 to 400 m at Midway and Laysan and at 500 m at Kure (Abernathy 1999, Stewart and Yochem 2004a, Stewart and Yochem 2004b). Although these modes in the data suggest a focus around particular depth ranges in the various locations, the deeper areas are used less frequently; data from French Frigate Shoals, Laysan, and Kure demonstrate that less than 10 percent of all diving effort recorded in these areas occurred in depths greater than 200 m (Abernathy 1999, Stewart and Yochem 2004a, Stewart and Yochem 2004b). The NWHI data demonstrate that seal foraging behavior is focused beyond the boundary of the 1988 designation and that depths beyond 100 m provide important foraging habitat for this species. While foraging areas deeper than 100 m remain important to the species' conservation, the variation in diving behavior displayed among the NWHI subpopulations made the significance of these areas difficult to determine.

Information from the MHI taken across multiple years indicates that monk seal foraging behavior is similar to the behavior of seals in the NWHI, but that foraging trip duration and average foraging distance in the MHI is shorter (Cahoon 2011). Although a few monk seals have been recorded as diving to depths around 500 m in the MHI, these dives are rare and do not describe the majority of diving behavior in the MHI (NMFS 2012). Cell phone tracking data received within the last 2 years in the MHI indicate that approximately 95 percent of all recorded dives in the MHI have occurred at 100 m or less, and that approximately 98 percent of dives occur at 200 m or less (NMFS 2012). These numbers indicate a relatively low frequency of use for foraging areas between 100 m and 200 m; however, monk seal population numbers in the MHI are acknowledged to be low but increasing.

Although the frequency of use of deeper foraging areas is different from the NWHI, seal foraging behavior in the MHI is described as similar in nature to their NWHI counterparts, with seals' core areas focused over submerged banks and most seals focusing efforts close to their resident islands (Cahoon 2011). Baker and Johanos (2004) suggest that monk seals in the MHI area are experiencing favorable foraging conditions due to decreased competition in these areas, which is reflected in the healthy size of animals and pups in the MHI. This theory is supported by Cahoon's (2011) recent comparisons of foraging trip duration and average foraging distance data. For both the recommendations for proposed and final rules, the CHRT indicated that marine foraging areas that are essential to Hawaiian monk seal conservation are the same depth in the NWHI and in the MHI. Although MHI monk seal foraging activity currently occurs with less frequency at depths between 100-200 m than their NWHI counterparts, MHI seal numbers are still low (approximately 153 individuals) and expected to increase (Baker

et al.

2011). As seal numbers increase around resident islands in the MHI, seals' foraging ranges are expected to expand in order to adjust as near-shore resources are shared by more seals whose core foraging areas overlap. Given that 98 percent of recorded dives are within 200 m depth in the MHI, and the lack of information supporting a 500 m dive depth, we are satisfied that the 200 m depth boundary provides sufficient foraging habitat to support a recovered population throughout the range.

Accordingly, we have revised the foraging areas' essential feature to reflect the best available information about monk seal foraging to, “Marine areas from 0 to 200 m in depth that support adequate prey quality and quantity for juvenile and adult monk seal foraging.”

After considering public comments, we recognize that many activities occur in the marine environment and are unlikely to cause modification to the bottom-associated habitat and prey that make up essential Hawaiian monk seal foraging areas. As noted in the proposed rule and the biological report (NMFS 2014a), monk seals focus foraging efforts on the bottom, capturing prey species located on the bottom within the substrate of the bottom environment or within a short distance of the bottom (such that the prey may be easily pinned to the bottom for capture). In other words, the proposed rule recognized that the features that support Hawaiian monk seal foraging exist on and just above the ocean floor. The proposed rule identified foraging areas as essential to the Hawaiian monk seal and not those marine areas where monk seals travel and socialize. To clarify for the public where Hawaiian monk seal essential features exist and where protections should be applied, we have revised the delineation to incorporate the seafloor and marine habitat 10 m in height from the bottom out to the 200 m depth contour. That portion of the water column above 10 m from the bottom is not included within the critical habitat designation.

7. All terrestrial areas in the NWHI, with the exception of Midway harbor, were included in the proposed designation; however, in the MHI we identified that major harbors and areas that are inaccessible to seals or that have manmade structures that lack the essential features of Hawaiian monk seal critical habitat were not included in the designation. We received comments indicating that the NWHI, similar to the MHI, also have areas that are inaccessible to seals or that have manmade structures that do not support monk seal conservation (such as, seawalls and buildings), and that these areas should similarly not be included in the designation. We agree and have revised the designation of the final rule to acknowledge that areas that are inaccessible to seals and/or have manmade structures that lack the essential features are not included in the designation for Hawaiian monk seal critical habitat throughout all sixteen specific areas.

8. Last, to ensure that the boundaries of the designation reflect the revisions to the definitions of preferred pupping and nursing areas and significant haul-out habitats we reviewed NMFS Pacific Islands Fisheries Science Center (PIFSC) records from the NWHI and the MHI. These records indicate that seals in the NWHI have preferred pupping and nursing sites and significant haul-out areas on the islands and islets of eight of the ten areas designated in the 1988 designation. Since the low-lying islands and islets of the NWHI provide characteristics (

e.g.,

sandy sheltered beaches, low-lying vegetation, and accessible shoreline) that support terrestrial essential features, we have included the entire land areas in the designation (with the exception of inaccessible areas and/or manmade structures as stated above). Identification of where these features exist in the specific areas may be found in the biological report (NMFS 2013). We identified significant haul-out areas using sighting and tracking information mapped across the MHI displaying frequency of seal use as described above. Final areas of terrestrial critical habitat within the MHI were delineated to include all significant haul-out areas and preferred pupping and nursing sites. Segments of the coastline in the MHI that include these features and which are delineated and included in this final designation are described in the Critical Habitat Designation section below.

Summary of Comments and Responses

We requested comments on the proposed rule and associated supporting

reports to revise critical habitat for the Hawaiian monk seal as described above. The draft biological report and draft economic analysis were also each reviewed by three peer reviewers. We received 20,898 individual submissions in response to the proposed rule (including public testimony during the six hearings). This included 20,595 form letter submissions in support of revising Hawaiian monk seal critical habitat and 303 unique submissions. The majority of comments concerned economic and other impacts for consideration for exclusions, the regulatory process for critical habitat designation, legal issues, essential features, additions to critical habitat and biological issues. Additionally, among the 303 submissions we received multiple petitions in opposition and support of the proposed rule; in all we received 2,950 signatures in opposition to the proposed rule and 5,872 signatures in support.

We have considered all public and peer reviewer comments, and provide responses to all significant issues raised by commenters that are associated with the proposed revision to Hawaiian monk seal critical habitat.

We have not responded to comments or concerns outside the scope of this rulemaking. For clarification purposes, a critical habitat designation is subject to the rulemaking provisions under section 4 of the ESA (16 U.S.C. 1533). When finalized, a critical habitat designation creates an obligation for Federal agencies under section 7 of the ESA to insure that actions which they carry out, fund, or authorize (permit) do not cause destruction or adverse modification of critical habitat. Research and management activities for endangered species are subject to provisions described under section 10 of the ESA, which requires the issuance of a Federal permit to allow for activities that may otherwise be prohibited under section 9 of the ESA. Because the research and management actions in the PEIS are carried out by a Federal agency and they require Federal permitting, these actions have been reviewed in accordance with section 7 to ensure that the actions would not jeopardize the continued existence of a listed species or cause destruction or adverse modification to critical habitat. Accordingly, critical habitat designations in no way authorize research and management activities to occur and do not ease or secure the authorization of such activities.

Peer Review

Comment 1:

One peer reviewer questioned whether there are temporal differences in the use of Hawaiian monk seal habitat features. The reviewer suggested that if temporal aspects exist, such as changes in prey abundance or availability, variations in weather or environmental conditions, which make some areas inaccessible or less preferable to seals, or seasonal differences that may influence human-seal interactions, that we describe these aspects in more detail in the biological report.

Response:

Factors that influence when Hawaiian monk seals use habitat features are described in the Habitat section of the biological report (NMFS 2014). Life-history stages influence when and how Hawaiian monk seals use habitat features; consequently, annual changes in habitat use may reflect the demographics of the resident population of seals. Differences, or peaks, in habitat use of preferred pupping areas or significant haul-out areas may occur when resident seals are reproductively active or experiencing their molt. Some preferred pupping areas may be used more frequently by females and pups during common birthing months between February and August (Johanos

et al.

1994, NMFS 2007). Additionally, significant haul-out areas may be used more as resident animals of various ages and each sex undergo their annual molt (see NMFS 2014a).

Little information is available to indicate that monk seal use of foraging areas is influenced annually by seasonal variations in weather. Stewart

et al.

(2006) noted seasonal variation in core foraging areas for individual seals, but not for others tracked during a single year at Pearl and Hermes reef. Cahoon (2011) tested the summer and winter diets of seals and found no statistical differences in composition between seasons. However, in both studies sample sizes are limited and additional data may provide more clarity.

No information suggests that there is a seasonality associated with human-seal interactions, or that Hawaiian monk seal habitat use is currently influenced in a seasonal way by human activities. Historical factors associated with human-use of the NWHI and impacts to Hawaiian monk seal habitat use are discussed in the Population Status and Trends section of the biological report (NMFS 2014).

Comment 2:

Several peer review comments suggested that we provide additional information about the ecology of Hawaiian monk seals to better demonstrate how habitat supports behaviors that are important to Hawaiian monk seal conservation. Specifically, reviewers requested that additional information be provided about resting, molting, and socializing behaviors.

Response:

We have added additional information to the Habitat section of the biological report (NMFS 2014a) to better identify how specific habitat features support Hawaiian monk seal behaviors, such as resting, molting, and socializing and to describe the significance of these activities to Hawaiian monk seals. With regard to the significance of these behaviors, we provide the following information. Resting provides energetic benefits by allowing these phocids' recovery from the energetically demanding marine environment (Brasseur

et al.

1996). Molting is considered a metabolically demanding process whereby pinnipeds renew skin, fur, and hair for critical waterproofing and insulation purposes. Studies indicate that seals may minimize energetic costs of heat loss during this demanding transition by hauling-out on land (Boily 2002). Monk seals are a relatively solitary species, and the most substantial social bonding occurs between the mother and pup throughout the nursing period, which is important for early nourishment and protection. In addition to this early pairing, Hawaiian monk seals do socialize from time to time with other conspecifics. In later years pairing activities are directed towards reproductive output. In summary, seals haul-out for a variety of reasons including rest, thermoregulation, predator avoidance, social interaction, molting and pupping and nursing. Generally, the objective of natural behaviors is believed to enhance the animals' fitness by providing energetic, survival, and reproductive benefits to the species.

Comment 3:

A peer reviewer questioned what studies are being done on monk seal prey species and whether changes in Hawaiian monk seal prey abundance have been recorded.

Response:

It is still difficult to determine the relative importance of particular prey items given the variation that is seen in the diets of Hawaiian monk seals and the dynamic nature of the marine ecosystem across the range of the Hawaiian monk seal. To better characterize Hawaiian monk seal foraging ecology, NMFS' Hawaiian Monk Seal Research Program directs foraging research towards evaluating monk seal diet, foraging behavior and habitat use, and understanding linkages between foraging success and changing oceanographic conditions. Information gained from the foraging program is discussed throughout the Habitat section of the biological report (NMFS 2014a).

Generally, climate patterns (

e.g.,

El Nino) drive changes in temperatures and/or ocean mixing that result in changes to ocean productivity. This influence extends up the food web, altering prey abundance for top predators like the Hawaiian monk seal, which eventually affects juvenile survival (Baker

et al.

2012). Researchers found that variation in Hawaiian monk seal abundance trends across the NWHI appears to reflect shifts in ocean productivity that are driven by various climate patterns (Polovina

et al.

1995; Polovina & Haight 1999; Antonelis

et al.

2003; Baker

et al.

2007; Baker

et al.

2012). The final biological report provides updated information about Hawaiian monk seal foraging ecology and additional information on how various climate patterns may influence productivity and prey abundance.

Comment 4:

One peer reviewer expressed concerns that NMFS had overlooked discussing the adverse effects of anthropogenic noise on Hawaiian monk seal habitat. The reviewer stated that literature documents the adverse effects of underwater activities (

e.g.,

military training, dredging, and pile driving) as well as in-air acoustics (

e.g.,

jet landing and takeoff, boats, construction related, and live firings) on pinnipeds, including responses such as avoidance, startle, generalized disturbance, and auditory damage. The reviewer recommended including information in the biology section of the report and in other sections as appropriate.

Response:

We have updated the Natural History section of the biological report to provide additional information about the hearing capabilities and vocalizations of Hawaiian monk seals. Limited information suggests that Hawaiian monk seal hearing is less sensitive than that of other pinnipeds (Southall

et al.

2007). Seals communicating in the airborne environment rely largely on short-range signals to alert conspecific animals, or to keep them informed of a signaler's location or general behavioral state (Miller and Job 1992). In addition, vocalization occurs between moms and pups, but studies indicate that females do not distinguish their pups' vocalizations from other pups (Job

et al.

1995). Note that impacts to Hawaiian monk seals, including those associated with sound, are already analyzed in accordance with obligations to avoid jeopardy during ongoing section 7 consultation.

Comment 5:

Several peer reviewers commented that marine debris is a threat to Hawaiian monk seals and their habitat and requested that additional information about this threat be provided in the biological report. Specifically, reviewers commented that lost fishing nets and gear may affect Hawaiian monk seal foraging areas by reducing the abundance of prey species due to entanglement or habitat loss. A reviewer also commented that lost fishing gear washing ashore in critical habitat areas could impact either where seals haul out or cause injury and mortality if they become entangled in debris onshore.

Response:

We agree that marine debris is a threat to Hawaiian monk seals and their critical habitat and that fishery associated debris may affect Hawaiian monk seal foraging areas by reducing the abundance of prey species due to entanglement or habitat loss. We have added additional information about this threat and the activities associated with this threat into the Special Management Considerations or Protections section of the biological report (NMFS 2014a) under fisheries activities and environmental response activities.

Fisheries related debris can affect Hawaiian monk seal critical habitat and this threat is prevalent in the NWHI where the combination of prevailing ocean currents (in the North Pacific Subtropical Gyre) and wind patterns causes marine debris, including fishing gear from fisheries throughout the Pacific Rim, to accumulate. Lost fishing gear may be snagged in coral reefs causing damage to these areas and/or entangling monk seal prey species within Hawaiian monk seal foraging areas. Additionally, marine debris may accumulate on land, reducing the quality or availability of terrestrial habitat. Although some gear is lost from Hawaii's fisheries, a majority of the gear observed from the NWHI marine debris removal efforts includes trawl netting, monofilament gillnet, and maritime line from other Pacific Rim fisheries (Donohue

et al.

2001). Similar gear also accumulates around the main Hawaiian Islands; areas of heavy accumulation include the windward coasts of many of the islands (PIFSC 2010). Due to the widespread nature of these problems, and the number of species and ecosystems affected by this threat, the NOAA Marine Debris Response Program encourages partnerships among agencies to address marine debris response.

Comment 6:

One reviewer commented that the biological report should make a distinction between impacts from initial construction versus the on-going operation of new energy-generating devices. This reviewer also questioned whether short-term activities would be allowed within critical habitat areas or if the vulnerability of the population would forbid all activities due to the lack of experimental research on the response of Hawaiian monk seals to such activities.

Response:

We agree that energy development projects may have impacts associated both with construction and with on-going operations and we have revised the Special Management Considerations or Protections section of the biological report (NMFS 2014a) to reflect these potential impacts to essential features.

Protections for critical habitat are applied under section 7 of the ESA. In Federal section 7 consultations, the Services (NMFS and the U.S. Fish and Wildlife Service (USFWS), the agencies that implement the ESA) may recommend specific measures or actions to prevent or reduce the likelihood of impacts to the important resources in designated areas. Recommendations to protect critical habitat depend on how a project or activity might affect the quantity, quality, or availability of essential features, and this is determined through a thorough review of the action to identify any environmental stressors and to assess the responses to exposure and risk from the activity. Generally, if short term impacts are anticipated, the section 7 process will assist in minimizing those impacts. For projects in which impacts of the activity are more uncertain, Federal agencies are still held to the same standards to avoid destruction and adverse modification. During section 7 consultations, agencies meet this standard by using the best available information to determine the likely impacts of the activity on a listed species and its critical habitat.

Comment 7:

Peer review comments indicated that an expansive designation meets the biological needs of the species, but questioned how large areas would be managed adequately. Among these comments, a reviewer questioned if regulations would be in place to limit new structures built right up to the shoreline in critical habitat.

Response:

Protections for critical habitat are applied under section 7 of the ESA as described above in the response to comment 6. The designation does not establish new regulations specific to a type of activity, such as building a structure on the shoreline.

Comment 8:

Peer review comments stated that the draft economic analysis (ECONorthwest 2010) did not clearly describe the overall impacts of the proposed designation with regard to the spatial distribution of expected impacts and the types of activities. One reviewer

questioned whether impacts are uniformly distributed.

Response:

The draft economic analysis (ECONorthwest 2010) did note that potential impacts are expected to be largely associated with in-water and construction activities; however, we agree that the discussion of spatial distribution of the expected impacts resulting from the proposed designation could be improved. The final economic analysis (Industrial Economics 2014) has been revised to describe more clearly the spatial distribution of economic impacts associated with the designation as well as how individual activities are expected to be affected.

Comment 9:

A peer reviewer questioned whether impacts associated with the 1988 designation were used to inform the economic analysis. The reviewer recommended that the economic analysis more clearly identify the types of activities that occur within the current designation and use past consultation history from these areas to inform the full analysis.

Response:

Since the 1988 designation, there is a limited history of activities in the NWHI from which to inform the revised designation, because little human activity occurs within the NWHI. This is due to the remoteness of the region as well as the fact that the areas have received environmental protections as a national wildlife refuge and then later as a national monument. The economic analysis uses NMFS' section 7 consultation history to anticipate the types, number, and location of activities that may occur within the areas designated for this final rule. This includes those areas from the 1988 designation in the NWHI, where consultations have already considered the effects of actions on Hawaiian monk seal critical habitat. After considering this and other comments, the final economic analysis (Industrial Economics 2014) was revised to articulate more clearly the impacts anticipated for each specific area, including those areas in the NWHI. Activities in these areas are described in Chapter 12 of the economic analysis as research permits, education activities, recreation management, and maintenance of existing structures (Industrial Economics 2014). Annual anticipated impacts range from less than $177 per year at Nihoa Island to $1,090 per year at French Frigate Shoals.

Public Comments

Legal Comments

Comment 10:

We received comments questioning why NMFS did not prepare an Environmental Impact Statement (EIS) and/or an Environmental Analysis (EA) in compliance with the National Environmental Policy Act (NEPA). Comments voiced concerns that NMFS completed an EIS for the original 1986 designation, which analyzed the impacts of five alternatives, but did not complete an equivalent NEPA analysis for the current proposed designation. One of the comments further noted that the proposed critical habitat expansion to the main Hawaiian Islands has potential for greater social, cultural, and economic impacts than the original designation, and that the sheer number of section 7 consultations and associated biological opinions with this designation could be debilitating to the State. An additional comment questioned NMFS' reliance on

Douglas County

v.

Babbitt

48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698 (1996), to determine that an environmental analysis as provided for under NEPA compliance was not required. This comment noted that NEPA requirements associated with critical habitat designations remain unsettled because the 10th circuit's decision in

Catron County Board of Commissioners

v.

United States Fish & Wildlife Service

75 F.3d 1429, 1433 (10th Cir. 1996) required the U.S. Fish and Wildlife Service to prepare an Environmental Assessment for the Mexican Spotted Owl designation.

Response:

We disagree that NMFS is required to complete analysis under NEPA for the current designation. In 1980, when we first considered providing habitat protections for the Hawaiian monk seal we wished to evaluate the benefits and impacts associated with either designating a sanctuary under the National Marine Sanctuaries Act (NMSA), or critical habitat under the ESA in the NWHI. Section 304 of the NMSA requires the Secretary to prepare a draft EIS, in compliance with NEPA, when proposing to designate a national marine sanctuary; therefore, a draft EIS was prepared to evaluate this option for Hawaiian monk seal habitat protection. The alternatives were presented to the public in 1980 in compliance with the NMSA and NEPA. Comments received mostly supported the designation of critical habitat under the ESA; however, the boundaries for designation remained undecided and we postponed further action to await recovery team recommendations (51 FR 16047; April 30, 1986). In 1985, in accordance with recommendations from the 1983 recovery plan, NMFS proposed critical habitat for the Hawaiian monk seal under the ESA and then finalized the action in 1986. The 1986 final rule (51 FR 16047; April 30, 1986) determined that NEPA was not necessary to move forward with the designation of critical habitat under the ESA. Nonetheless, however, we elected to complete the EIS process since a draft and supplemental report had already been prepared to meet the requirements of NMSA.

Since the original designation of monk seal critical habitat, in

Douglas County

v.

Babbitt

48 F.3d 1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698 (1996), the Ninth Circuit Court of Appeals directly addressed the question of whether NEPA applies to critical habitat designations. The Ninth Circuit held that because it was apparent that Congress intended the comprehensive ESA procedures for designating critical habitat to replace the NEPA requirements, NEPA does not apply to critical habitat designations. In particular, the Ninth Circuit noted that ESA procedures for critical habitat designations, including a “carefully crafted congressional mandate for public participation” through extensive public notice and hearing provisions, renders NEPA procedures superfluous. Although we recognize that the 10th Circuit Court of Appeals disagrees with the

Douglas County

decision, we note that recently in

Bear Valley Mutual Water Company, et. al.,

v.

Jewell,

F.3d, 2015 WL 3894308 (9th Cir. June 26, 2015), the Ninth Circuit reaffirmed its decision in

Douglas County

as controlling law. Accordingly, NMFS was not required to prepare an environmental impact statement for the revision of monk seal critical habitat.

Comment 11:

Several comments suggested NMFS did not comply with various legal requirements associated with other laws while preparing this rulemaking, including the National Historic Preservation Act (NHPA), the Clean Water Act, and the Hawaii Environmental Policy Act, Chapter 343, HRS, as amended by Act 50. Comments regarding the NHPA either indicated that Native Hawaiians or indigenous people were not consulted in accordance with section 106 prior to this proposal or requested that Native Hawaiian organizations be a part of a consultation process.

Response:

The designation of critical habitat merely establishes an additional consideration to existing Federal ESA section 7 consultation processes. The designation would not alter the physical characteristics of areas within the boundaries and would not authorize a specific project, activity, or program to occur. As stated above, the critical habitat designation only establishes additional consultation considerations

for Federal agencies to ensure that actions undertaken do not destroy or adversely affect Hawaiian monk seal critical habitat. Accordingly, the designation and associated consultation has no potential to alter the characteristics of any historic properties, or otherwise authorize the discharge of pollutants that may degrade the water; therefore, the requirements of the above-referenced authorities are not triggered. Notably, any future Federal actions that are subject to section 7 consultations would remain subject to the consultation provisions of section 106 of the NHPA, provided such action has the potential to cause effects to historic properties.

Furthermore, the associated ESA section 7 consultation process does not preclude any applicable protections or requirements associated with the Clean Water Act. Finally, while HEPA does not directly apply to NMFS' designation of critical habitat, applicants for state permits in designated critical habitat areas must continue to comply with all applicable Hawaii state requirements.

Comment 12:

One comment indicated that NOAA's declaration of critical habitat in the State's ocean resources constitutes a taking of resources.

Response:

We disagree. Executive Order (E.O.) 12630 requires Federal agencies to consider the impact of proposed actions on private property rights. The Classification section of this rule and the proposed rule provides a summary of our determination on E.O. 12630 with regard to takings. This final rule does not result in a physical invasion of private property, nor does it substantially affect the value or use of private property. Rather, in designating critical habitat for Hawaiian monk seals, this final rule establishes obligations on Federal agencies to consider the impact of their proposed actions, and to avoid destroying or adversely modifying areas designated as critical habitat. Accordingly, we disagree that this designation would constitute a taking of resources.

Need To Designate

Comment 13:

Several comments indicated that we are not required to designate critical habitat for the Hawaiian monk seal, because the species was listed in 1976 prior to the 1978 amendment to the ESA (which required critical habitat be designated concurrent with listing). These comments cited

Southwest Florida Conservancy

v.

United States Fish and Wildlife Service

(citation: No. 11-11915) (11th Cir. 2011), which upheld the USFWS' discretion to not designate critical habitat for the Florida panther because the species was listed prior to 1978. One of these comments indicated that this case proves we incorrectly identified in public meetings that the petition gave us no choice but to declare critical habitat for the Hawaiian monk seal.

Response:

The comments correctly identify that the Hawaiian monk seal was listed in 1976, prior to the 1978 amendment to the ESA, which required to the maximum extent prudent and determinable that critical habitat be designated for newly listed species. However, we do have the discretion to designate critical habitat for species listed before the amendment, and we exercised that discretion in 1986 (51 FR 16047; April 30, 1986). Due to the existing monk seal critical habitat designation, our obligations under the ESA are different than those of the USFWS in the case of the Florida panther, in which critical habitat was never designated for the species. Under the 1982 amendments to the ESA, the Services “may” revise critical habitat designations “from time-to-time . . . as appropriate.” 16 U.S.C. 1533(a)(3)(A).

Although the Services are not compelled to revise critical habitat for a listed species, we were required by the petition response process under the ESA to make a decision as to whether substantial scientific information indicates that a revision may be warranted (U.S.C. 1533(b)(D)(i)). As we announced in our 12-month finding, new information about Hawaiian monk seal foraging and habitat use in the MHI indicates that physical and biological features essential to the conservation of the Hawaiian monk seal (which may require special management considerations or protections) are located outside of the boundaries of the 1988 critical habitat designation and throughout the Hawaiian Archipelago (74 FR 27988; June 12, 2009). Consistent with the standards for announcing our 12-month finding (U.S.C. 1533(b)(D)(ii)) we announced our intention to proceed with the requested revision. As we noted in public meetings, applying the best available science, we believe that a revision is necessary to define more accurately the essential features and areas that support Hawaiian monk seal conservation. Additionally, we believe that this revision will facilitate better Federal, State, and local planning for monk seal recovery.

Comment 14:

A number of comments maintained that a revised critical habitat designation was unnecessary because existing protections both on the Federal and State level already adequately protect Hawaiian monk seals. Among these comments Hawaii's DLNR identified such existing management measures as those provided for under the ESA (including section 7), the existing critical habitat designation, protections under the MMPA, and State zoning and land use protections in place for Special Management Areas under the Coastal Zone Management Act (CZMA). Additionally, some of the comments questioned the need for the designation because they did not understand how protections for critical habitat would differ from those protections that already exist.

Response:

The ESA defines critical habitat in relevant part, as “the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection,” 16 U.S.C. 1532(5)(A)(i). The phrase “may require” indicates that critical habitat includes features that may now, or at some point in the future, be in need of special management or protection.

As explained in the proposed rule, we determined that each essential feature may require special management considerations or protections. We agree that certain laws and regulatory regimes already protect, to different degrees and for various purposes, the essential features identified for Hawaiian monk seals. However, in determining whether essential features may require special management considerations or protection, we do not base our decision on whether management is currently in place, or whether that management is adequate. That is, we cannot read the statute to require that “additional” special management be required before we designate critical habitat (See

Center for Biological Diversity

v.

Norton,

240 F.Supp.2d 1090 (D. Ariz. 2003)). That habitat may be under an existing conservation program is not determinative of whether it meets the definition of critical habitat.

Moreover, we do not believe that existing laws and regulations adequately ensure that current and proposed Federal actions will not adversely modify or destroy Hawaiian monk seal critical habitat, currently or into the future. While the MMPA provides protections to Hawaiian monk seals, the MMPA offers little direct protection to the features upon which their survival and recovery depend. Additionally, while Hawaii's Special Management Areas may provide some protections for Hawaiian monk seal habitat, they do not inform Federal agency decisions that

may directly affect monk seal essential features.

Under the ESA, Hawaiian monk seals receive other protections for the species itself. “Take” of the species is broadly prohibited unless authorized by a permit or incidental take statement, and Federal agencies must ensure that their activities do not result in “jeopardy” to the species. In some circumstances “take” may be described as harm, which may include habitat modifications, but ESA prohibitions apply only when the modification or degradation is significant and “actually kills or injures” the species by “significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering,” (See 50 CFR 222.102).

The revision and expansion of critical habitat for this species also informs Federal agencies, State and local governments, and the public of the importance of these areas to the species' recovery. Additionally, the designation helps to ensure that Federal activities are planned and conducted in a manner that safeguards Hawaiian monk seal essential features, and becomes one tool in a suite of conservation measures to support recovery goals for this species (NMFS 2007a). Finally, the consultation process under section 7 of the ESA will provide NMFS with a powerful tool with which to propose project modifications and, as appropriate, reasonable and prudent alternatives, before adverse impacts occur.

Comment 15:

Some commenters asserted that the proposed critical habitat designation is unnecessary, misguided, and/or will be ineffective, because the designation would not address the major threats to the species in either the NWHI or the MHI, including those identified in the recovery plan. Among these comments Hawaii's DLNR expressed that the designation would provide no additional benefits to the species than already exist, and suggested that we should concentrate our efforts on more active or valid management techniques that address the major threats to the species, including those threatening the status of the seals in the NWHI, such as juvenile food limitations, shark predation, and mobbing. Similarly, another comment suggested the designation would not address the main management problem for monk seals, which is the destruction of the monk seals' main food source by the commercial lobster fishery in the NWHI, and proposed enhancing lobster stocks as a solution. An additional comment stated that the most detrimental threats to the species cannot be addressed through the designation because the threats are not caused by federally funded, authorized, or permitted activities, or because they are not issues of habitat. Another comment stated that the proposed designation did not align with our recovery plan for the species, and this commenter stated that the designation would fail to remove the “sociological problems” that the recovery plan lists as threats to the MHI seals.

Response:

The Hawaiian Monk Seal Recovery Plan (NMFS 2007a) acknowledges multiple threats to the species, and ranks those threats as crucial, serious, and moderate. The plan additionally provides prioritized recommendations on conservation actions or programs that support recovery. Generally, conservation actions that address crucial threats are given top priority. We recognize that a revision to critical habitat does not necessarily address all of the crucial threats that are outlined in the recovery plan, such as food limitation, entanglement, and shark predation; however, we disagree with comments that suggest that the revision to critical habitat provides no benefit to this species and/or does not align with the goals of the recovery plan.

Because just over a thousand Hawaiian monk seal individuals remain in the population, priority management actions and recommendations in the Hawaiian monk seal recovery plan focus on diminishing the population-limiting threats, such as food limitations, entanglement, and shark predation in the NWHI. While management actions to address crucial threats are necessary to ensure the survival of the species, other management actions are also necessary to plan for and accomplish recovery of the species throughout its range. In the Recovery Plan, habitat loss is considered a serious threat to the species, and the recovery plan provides recommendations, which received priority 2 ranking, to maintain protections for existing critical habitat with possible expansions as information is available (NMFS 2007a). Accordingly, contrary to comments received, the revision to critical habitat does align with the recovery plan.

With regard to the benefits of the designation, critical habitat uniquely protects the essential features that a listed species needs to survive and recover. These protections are applied through Federal section 7 consultation when an activity carried out, funded or authorized by a Federal agency may affect critical habitat. During consultation the activity is carefully planned in order to avoid impacts to the essential features, such that the critical habitat areas remain functional for the species' use now and in the future. While a critical habitat designation may not be able to prevent the priority threats to the Hawaiian monk seal, it is a valuable tool that helps to ensure that Federal planning and development does not limit recovery for the species.

As stated in our response to Comment 13, we were required to respond to the 2008 petition to revise critical habitat. Moreover, we believe that any effective, broad-based conservation program must address threats not only to the listed species but also to the habitat upon which the species depends. We believe that a revision to critical habitat will support recovery of the species because it will provide information about and protections for habitat and resources that are not exclusively detailed and protected under the 1988 critical habitat designation.

In addition to revising critical habitat for the species, we plan to continue to work towards addressing other obstacles to recovery through other directed research, management, and educational initiatives.

With regard to the comment about lobsters in the NWHI; we acknowledge that food limitations appear to limit juvenile survival in the NWHI; however, we do not have information to confirm the commenter's theory that the declines in the Hawaiian monk seal population are a direct result of the decreased lobster population. Moreover, we note that all commercial fishing within the Papahanaumokuakea Marine National Monument, including crustacean fishing, ceased in 2011, removing competition for those resources by commercial fishermen.

Current information indicates that Hawaiian monk seals are foraging generalists feeding on a wide variety of species; the relative importance of lobster in the diet is not clear. Alternatively, both of these populations may have experienced similar declines due to changes in productivity in the region associated with climate and ocean variability following periods of overexploitation (Schultz

et al.

2011), and seal declines may have occurred regardless of any influence that lobsters have on the diet. In addition, by referring to “sociological problems” we assume the commenter was referring to obstacles associated with improving co-existence between humans and monk seals in the MHI. We recognize that successful recovery efforts for monk seals in the MHI depends on cooperation from Hawaii's communities and we have been and will continue to work with the public to address

concerns that hinder monk seal conservation and peaceful co-existence in the MHI.

Comment 16:

Some of the comments stated that the proposed expansion of critical habitat was not justified, or that it was unnecessary for reasons relating to the status of the species. Specifically, some of these comments stated that the 1988 critical habitat designation has proven to be unnecessary or ineffective, because the species is declining within critical habitat in the NWHI and increasing in the MHI, where critical habitat is not designated. One such comment stated that NMFS had not adequately demonstrated that the existing critical habitat in the NWHI had contributed to conservation and recovery of the monk seal, nor demonstrated how the revision would contribute to the recovery goals of the species. Another comment stated that the proposed designation did not meet the definition of critical habitat, because the proposed areas were not essential to the conservation of the species and that the 1988 designation has not proven to be essential to the recovery of the species. Additional comments stated that the increasing numbers and the health of the population in the MHI suggest that seals are adequately protected and that no additional protection is necessary in the MHI.

Response:

As noted in the biological report (NMFS 2014a), the difference in the status between these two areas of the Hawaiian monk seal's range is believed to be a reflection of the differences in environmental conditions between these two regions. Evidence evaluating seal health, growth, survival and fecundity in various regions of the NWHI indicates that food limitations may be influencing the lack of recovery in this region (Craig and Ragen 1999; Harting

et al.

2007; Baker 2008). Researchers suggest that climate-ocean variability leads to variable ocean productivity, which in turns affects these top predators (Polovina

et al.

1995; Polovina and Haight 1999; Antonelis

et al.

2003; Baker

et al.

2007; Baker

et al.

2012). We recognize that protections established under a critical habitat designation have not and will not alone ameliorate the primary threat of food limitations in the NWHI. However, this does not mean that critical habitat protections are not an important component of an effective recovery program. Critical habitat protections are designed to protect a listed species' habitat from Federal activities that may result in destruction or adverse modification. Therefore, the success or effectiveness of each particular designation may only be measured by determining how agencies were able to minimize the impacts of their activities, or prevent adverse modification or destruction of critical habitat. Contributions to Hawaiian monk seal conservation resulting, at least in part, from the 1988 designation include the continued existence of monk seal essential features in the NWHI and the various measures that Federal agencies have taken over the past 26 years to mitigate or minimize the potential impacts to this habitat. We believe that this revision to critical habitat is supported by new information that is available regarding the ecological needs of the Hawaiian monk seal and that a revised designation will support Federal agencies (as well as State and local governments) in planning for the protection of resources for Hawaiian monk seal conservation.

The comment that stated that the proposed areas did not meet the definition of critical habitat has incorrectly applied the definition of unoccupied habitat to the areas proposed for designation. The ESA defines critical habitat in part, as “the specific areas within the geographical area occupied by the species . . . on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” 16 U.S.C. 1532(5)(A)(i). Critical habitat includes areas outside of the geographical areas occupied by the species if such areas are essential for the conservation of the species. 16 U.S.C. 1532(5)(A)(ii). Habitat proposed for Hawaiian monk seal critical habitat designation within the MHI meets the definition of occupied critical habitat. Specifically, these areas are within the range used by the species, have features essential to conservation of the species, and these features may require special management considerations or protections from certain activities, as outlined in the biological report (NMFS 2014a). Regarding the comment that suggested that the previous designation has not proven to be essential to recovery of the Hawaiian monk seal, we think this statement fails to appreciate the complexity of recovering a species from a depleted status. We maintain that recovery for a listed species most often requires a suite of recovery actions and that critical habitat is just one tool that maintains the habitat to support the recovered population, as intended by Congress (see our response to comment 4). We refer back to our previous discussion about calculating the effectiveness of the 1988 designation and maintain that the former designation has played a role in conserving the essential features within the NWHI portion of the species range. Further, we believe that by expanding the 1988 designation to other significant areas of the Hawaiian monk seals' range, we can more effectively conserve the habitat that is necessary to support a recovered population.

Concerning comments that suggest that increasing numbers of seals in the MHI indicate that additional protections are unnecessary, we refer back to our responses to comments 15 and 16, which describe how the best available information indicates that Hawaiian monk seal essential features exist throughout the MHI and that they require special management or protection. Therefore, we believe a revised critical habitat designation including habitat throughout the species' range will help to safeguard resources Hawaiian monk seals will need for recovery.

Comment 17:

Several comments appear to confuse the protections that monk seals are afforded under a critical habitat designation with those that currently exist to protect the species under the MMPA and other parts of the ESA, or other habitat protections. One comment stated that the critical habitat designation was not warranted because “human-seal interaction” and enforcement in the MHI was too low to clearly establish a need for additional regulations. Other comments suggested that there was not information to indicate a need for a reserve or for the Federal government to own the land. Still other comments suggested that the designation was unnecessary because of the thousands of square miles that are already protected within the National Marine Monument and the Sanctuary.

Response:

The comments indicate that at least some protections for critical habitat may be misunderstood and/or misconstrued. We have grouped these comments in an effort to clarify the protections that exist with a critical habitat designation and to express how critical habitat protections differ from other forms of protections that were mentioned.

Critical habitat designations identify those areas where features exist that are essential to the conservation of the species and which may require special management considerations or protection. Protections for critical habitat are applied under section 7 of the ESA (see Statutory and Regulatory Background section). These designations are used as a planning tool for Federal agencies to protect the essential features such that the areas may support survival and recovery of

the listed species. In section 7 consultation, the Services may recommend specific measures or actions to prevent or reduce the likelihood of impacts to the important resources in these areas. Recommendations to prevent harm to critical habitat depend on how a project or activity might impact the essential features, and for this reason, recommendations may be project or activity specific.

A critical habitat designation does not create a reserve or a preserve. Critical habitat designations do not change the ownership of land, and they do not change the other local or State jurisdiction over a particular area. A critical habitat designation generally has no effect on property where there is no Federal agency involvement; for example, a private landowner undertaking a project that involves no Federal funding or permit.

We assume that the comment referencing “human-seal interaction” and enforcement is referring to incidents of “take” where people interact with seals on the beaches or in the water, resulting in harm or disturbance to the species. The commenter is suggesting that low “take” enforcement records in Hawaii implies that critical habitat protections are unnecessary. To clarify, a critical habitat designation protects essential features and habitat; it does not regulate day to day “human-seal interaction” where take may occur, nor does it change the existing regulations that prevent take or harassment of monk seals under the ESA or the MMPA.

The Papahanaumokuakea Marine National Monument was established by Executive Order in 2006 to protect the exceptional array of natural and cultural resources that include the NWHI and the surrounding marine resources. The area is managed jointly by the State, NOAA, and the USFWS. The 1988 monk seal critical habitat designation, as well as the proposed expansion in the NWHI, falls entirely within the boundaries of Papahanaumokuakea. We agree that the Hawaiian monk seal and the essential features of its critical habitat receive some protections from the ecosystem approach to management that is used by the Papahanaumokuakea Marine National Monument. However, these areas continue to meet the definition of critical habitat for the species because the essential features exist within these areas and they require special management or protection. The ecosystem in this area has experienced a great deal of perturbation and it falls on the managing agencies to ensure that current and future management efforts support the vast array of species that use this habitat, including the Hawaiian monk seal. A revision to critical habitat and acknowledgment of its existence within these protected areas, at a minimum, provides the management authorities with the information necessary to responsibly plan for the specific protection of monk seal critical habitat essential features, while using the ecosystem approach to management.

The Hawaiian Islands Humpback Whale National Marine Sanctuary (HIHWNMS) was established in 1992 and is jointly managed by NOAA and the State of Hawaii. While covering key areas that are significant to the humpback whale, HIHWNMS waters do not encompass the entirety of areas in the MHI that support Hawaiian monk seal essential features. Management within HIHWNMS waters currently focuses on providing protections for humpback whales and their habitat. Recently the National Ocean Service proposed to expand the boundaries and scope of the HIHWNMS to include an ecosystem-based management approach, including providing specific regulatory protections for various locations. Although existing protections and proposed measures, if finalized, may provide some form of protection for Hawaiian monk seal essential features; they do not, ensure that current and proposed actions will not adversely modify or destroy Hawaiian monk seal critical habitat within the HIHWNMS boundaries.

Natural History

Comment 18:

Multiple comments referenced the historical use of MHI habitat by Hawaiian monk seals, and the proposed designation in these areas. These comments expressed divergent perspectives including the belief that Hawaiian monk seals are not native to the MHI, or the belief that MHI habitat has supported Hawaiian monk seals for many years.

We received many comments referring to Hawaiian monk seals as not native, as introduced, or as invasive in the MHI. Some of these comments questioned the origin of the name, and whether it is an indigenous species due to a lack of Hawaiian cultural references. Other comments attributed the increase in the number of seals in the MHI and their use of MHI habitat to historical translocation efforts. Additionally, a couple of comments speculated that seals were not found historically in the MHI, because Hawaiians would likely have extirpated the seals to prevent competition for resources.

In contrast, other comments acknowledged that Hawaiian monk seals exist throughout the Hawaiian Islands, and that historical accounts of monk seals in the MHI indicate that the species has been using the habitat for longer periods of time than previously acknowledged. A couple of these comments indicated that the seals' use of the Main Hawaiian Islands predates human presence in Hawaii, and other comments expressed the importance of educating the public about the historical information that is available. One of these comments theorized that seals were driven from the MHI due to hunting pressures. One comment acknowledged that they were unsure about historical monk seal use of the MHI, but noted that the current increase in the number of seals in the MHI signifies that MHI habitat does not have the same problems for monk seal growth as NWHI habitat; consequently, monk seals are going to continue to use the MHI habitat. This commenter also noted that the MHI was part of the same chain as the NWHI and that these areas represent the same ecosystem.

Response:

We recognize these conflicting views regarding the Hawaiian monk seal's historical use of the MHI in the biological report (NMFS 2014a); however, we agree with comments that note that Hawaiian monk seals are native to the Hawaiian Islands and a natural part of the ecosystem in this region.

An invasive or non-native species most commonly refers to species that are human-introduced in some manner to an ecosystem. However, Hawaiian monk seals have been in the Pacific basin for millions of years and express ecological adaptations to Hawaii's tropical marine environment in their foraging ecology, reproductive behavior, and metabolism. “Hawaiian” describes the geographical area where the species, found nowhere else on earth, was first recorded by European explorers in the late 1800s and fossils have been found on the Island of Hawaii dating back 1,400-1,760 years ago, well before any of the historically written accounts of seals (Rosendahl, 1994). Early historical accounts of seals in the MHI, the fossil evidence, and the similarities in ecology between the NWHI and the MHI, indicate that MHI habitat is within the species' natural range.

As noted in the biological report, we translocated 21 males to the MHI in 1994 to alleviate male aggression issues at Laysan Island. However, Hawaiian monk seals were already established in the MHI prior to the 1994 translocation efforts. This is corroborated by reports of seals on Niihau in the 1970s and public sighting reports received throughout the MHI in the 1980s (Baker

and Johanos 2004), which included eight seal births in the MHI prior to the male-only translocation effort in 1994. Hawaiian monk seal numbers in the MHI have continued to grow naturally with births on seven of the MHI. While some of the 1994 translocated males may have sired pups in the MHI, the naturally occurring female monk seals in the MHI are responsible for the propagation of seals in the MHI.

Comment 19:

We received multiple comments that questioned the accuracy of the description of monk seal use of the MHI habitat. In general these comments questioned how seals arrived in the MHI, how many seals are moving on their own to the MHI, whether the species is migratory, and whether we have ever translocated seals to the MHI in the past, or present.

Response:

As noted in the biological report (NMFS 2014a), the current population of monk seals in the MHI is believed to have been founded by seal dispersal from the NWHI to under-documented areas of the MHI, such as Niihau or Kaula. Local accounts from Niihau indicate that seals were regularly using the Island as early as the 1970s (Baker and Johanos 2004). In the past 40 years seal numbers have grown in the MHI and seals have begun to utilize habitat throughout the MHI. Since early tagging efforts began in the NWHI in the 1980s, only a small number of seals have been documented moving from the NWHI to the MHI. The growth of the MHI seal population cannot be explained by this small number of migrations; instead, the population is growing due to high survival and reproduction of the local MHI population. As noted in our response to comment 18, 21 male seals were translocated to the MHI to manage an aggression problem at Laysan Island, but female seals have not been translocated to the MHI.

Comment 20:

We received several comments regarding Hawaiian monk seal foraging behaviors. Some of these comments expressed concerns or stated that monk seals may be damaging to the reef environment or competing directly with humans for fishing resources. Other comments wished to clarify what monk seals eat, and how much they eat to better understand their impacts on various resources.

Response:

The biological report (NMFS 2014a) provides information about Hawaiian monk seal foraging behavior and preferences that we summarize here.

Video footage of foraging monk seals indicates that the species uses a variety of techniques to capture prey species, including probing the bottom with their nose and vibrissae, using their mouth to squirt streams of water at the substrate, and flipping small loose rocks with their heads or shoulders in uniform bank, slope, and sand habitats (Parrish

et al.

2005). However, there is no evidence to suggest that these natural seal foraging behaviors that may cause some disturbance to the bottom are causing damage to the coral reefs or the surrounding environment. In fact, the largest numbers of seals exist in the NWHI (around 900 animals) and the reefs in this area of the Archipelago are generally understood to be more diverse and less degraded than in the MHI (Friedlander

et al.

2009).

In general, Hawaiian monk seals are considered foraging generalists that feed on a wide variety of bottom-associated prey species. Goodman and Lowe (1998) identified inshore, benthic, and offshore teleost or bony fishes, as the most represented prey items in monk seal scat, followed by cephalopods (squid, octopus and cuttlefish); from the 940 scats sampled, the study identified 31 families of teleosts or bony fishes and 13 families of cephalopods. It is difficult to precisely determine the degree of overlap between MHI fisheries and the Hawaiian monk seal diet, because the available data only show the families of fishes that monk seals eat and the species of fish caught by MHI fisheries. These data do not clarify whether competition exists for the same types or size of fish, in the same geographic areas, or at the same depths or time. Importantly, pelagic fisheries, such as tunas, mahi-mahi, and wahoo, which make up a majority of commercial and recreational landings in Hawaii, are not considered in competition with Hawaiian monk seals because seals focus on much smaller, bottom-associated prey species found closer to shore.

To consider how monk seal prey items may overlap with Hawaii's near-shore commercial and recreational fisheries Sprague

et al.

(2013) compared fish families landed in the Hawaiian monk seal diet with the most prevalent fish families found in the near-shore commercial and recreational fisheries. This evaluation excluded pelagic species, which make up 95 percent of commercially reported landings and 90 percent of recreational landings, and are not Hawaiian monk seal prey species. Of the 32 fish families found in the Hawaiian monk seal diet or in commercial or recreational near-shore landings, there was overlap in 15 families (Cahoon 2011; Sprague

et al.

2013). With all pelagic landings excluded, these 15 families make up about 27 percent of the remaining reported commercial fishery landings by weight, and 39 percent of the remaining reported recreational fishery landings by weight (Cahoon 2011; Sprague

et al.

2013). In other words, only about 27 percent of the near-shore commercial fishery landings and 39 percent of the near-shore recreational fishery landings are from families of fish also known to be eaten by monk seals. In summary, based on currently available data, it appears that Hawaiian monk seals are not likely to have a large impact on the available biomass in the MHI.

Sprague

et al.

(2013) also estimated that the maximum current MHI population of about 200 seals consumes around 1300kg/day (2900 lbs/day, or about 15lbs/day per seal); this is about 0.009 percent of the estimated available prey biomass in the near-shore waters (<30 meters) around the MHI. Spread out over their likely foraging habitat in the MHI (out to 200 m depth), the estimate above translates to about 0.17 kg per square kilometer per day (or about 1 lb/square mile per day). In perspective, apex predatory fishes in the MHI are estimated to consume at least 50 times more biomass daily and recreational and commercial fisheries in the MHI (excluding pelagic species) are estimated to land approximately three times more near-shore marine resources than are consumed by the current monk seal population (Sprague

et al.

2013).

Comment 21:

One comment stated that the proposed rule process was presenting misinformation regarding the seals' population and their pending extinction. This comment goes on to cite a 2007 report, that presented the number of seals at about 1,200 animals with a computer generated decline of 4 percent and a 2011 report that gives the numbers as 1,100 with a decline again given as 4 percent. This commenter concluded that the projected extinction has no bearing in fact, and that the population has been essentially constant over the last five years.

Response:

We disagree with the commenter's conclusion, because the commenter has incorrectly applied information presented on the NWHI population to the entire monk seal population estimates and has associated an incorrect time scale to the data presented. The population estimates and percent decline estimates referred to in the comment are taken from the annual Stock Assessment Reports (SARs). The approximate 4.5 percent decline (2009 SARs) referred to in the proposed rule is based solely on the six NWHI subpopulations (using a log-linear regression of estimated abundance on year for the past 10 years) and does not represent a percent decline

for the entire population. The population numbers presented by the commenter are for the entire population of seals located throughout the Archipelago, including estimates for Necker, Nihoa, and the MHI. The proposed rule did not use the decline rate for the NWHI to predict the extinction of the species, but rather to demonstrate the status of the declining population in the NWHI in comparison with the increasing MHI population. Population projections of the Hawaiian monk seal indicate that these two populations could equalize in less than 15 years (Baker

et al.

2011). We believe the different trajectories between these two sub-populations expresses the critical role that the MHI population plays in supporting the survival of this species and emphasizes the importance of protecting MHI habitat.

Essential Features

Comment 22:

We received several comments regarding the essential feature describing low levels of anthropogenic disturbance. Some comments suggested that human activity in MHI habitat makes some or all of MHI areas not conducive to monk seal population recovery because the areas do not offer low levels of anthropogenic disturbance. One comment suggested that the 1986 designation did not include the MHI, because the NWHI areas were sparsely populated by humans in comparison to the MHI.

Response:

After considering these and other comments, we further evaluated the role that areas with low levels of anthropogenic disturbance play in supporting monk seal conservation. We have determined that low levels of anthropogenic disturbance are not a physical or biological feature that is essential to Hawaiian monk seal conservation because they do not independently provide a service or function for Hawaiian monk seal conservation. Instead we find that low levels of anthropogenic disturbance may be a characteristic that describes some Preferred pupping and nursing areas or significant haul-out areas, which are the two terrestrial features that were found to be essential to Hawaiian monk seal conservation (see Summary of Changes from the Proposed Designation section above for more details).

Areas designated as critical habitat for Hawaiian monk seals in the MHI support the three essential features: Preferred pupping areas, significant haul-out areas, and/or foraging areas. In response to the comment regarding the 1986 designation, the areas identified as part of the 1986 designation in the NWHI were included due to the existence of five essential features found throughout these areas (51 FR 16047; April 30, 1986), based on the then-available scientific information, not because the area is sparsely populated by humans.

Comment 23:

We received a couple of comments that questioned how the boundaries of critical habitat were determined and/or what data support the designation. One of these comments questioned why the 1988 boundary of 20 fathoms could not also apply to the revised designation.

Response:

As identified in the proposed rule and the biological report (NMFS 2014a), we identified habitat features essential to the conservation of Hawaiian monk seals, and delineated specific areas within the geographical area occupied (or range) which contain at least one essential feature. Since the proposed designation, and after considering public comments, we have refined our description of the essential features to identify more precisely those areas where these features exist. As described in the Changes from the Proposed Designation section of this rule, we believe that depths up to 200 m, used by monk seals for foraging, support features essential to Hawaiian monk seal conservation. At this time, we do not have sufficient available information to conclude that waters deeper than 200 m support these essential features. Consequently, the boundaries of this designation are set at 200 m depth to encompass this refined essential feature. The terrestrial boundaries are set to encompass preferred pupping and nursing areas as well as significant haul-out areas. The information that supports the designation is described more fully in the Habitat section of the biological report (NMFS 2014a) and includes information on foraging ecology to describe where preferred marine foraging areas exist and monk seal sighting and tracking information to describe where preferred pupping and nursing areas and significant haul-out areas exist.

The 20 fathom (37 m) boundary in marine areas in the NWHI was established in 1988 at a time when our understanding of monk seal foraging ecology was limited. Advances in technology since the 1980s has led to a better understanding of Hawaiian monk seal ecology and we believe that the best available information indicates that foraging areas essential to Hawaiian monk seal conservation exist outside the 20 fathom (37 m) boundary established for the 1988 designation. For example, data from the NWHI indicates that seals are regularly diving at depths greater than 40 m, that at deeper depths behaviors are focused on foraging and that a majority of deeper diving behavior is captured at depths less than 200 m (Parrish

et al.

2000; Stewart

et al.

2006).

Comment 24:

The DLNR submitted comments stating that the detail provided and/or the analysis associated with five of the proposed six essential features was inadequate to meet the regulatory requirements of the ESA to establish critical habitat. In these comments the DLNR identified that pupping and nursing areas appear to meet the definition of “essential,” but that shallow aquatic sites occur everywhere and that these sites can be decreased in number based on the occurrence of pupping and nursing areas. The DLNR also suggested that two of the essential features regarding foraging habitat are identical in nature and should be consolidated. Additionally, they contend that the designation of critical habitat is not necessary because adequate protections are in place in the MHI where Hawaiian monk seal food availability is not constrained. The DLNR also identified that haul-out areas need to be physically accessible to seals and that areas such as high cliff shorelines should not be included in the proposed designation. The DLNR concluded that in considering this information that the designation should be revised to reduce the coastal areas proposed.

Response:

We agree with the DLNR and other comments suggesting that some of the essential features could be refined or combined to eliminate unnecessary duplication. To address these comments, we reconvened the CHRT to review comments, information used to support the proposed rule, and newly available information, including more recent MHI GPS tracking information. The Summary of Changes from the Proposed Designation section of this rule provides more specific information about refinements to the essential features.

We note that these comments indicate some confusion about the role of certain essential features in Hawaiian monk seal ecology. The proposed rule may have contributed to that confusion by identifying certain habitat features as separate essential features, even though they defined similar features that are used by monk seals to support a specific life-history stage or ecological function. For example, in the proposed designation “areas with characteristics preferred by monk seals for pupping and nursing” described the terrestrial component and “shallow sheltered

aquatic areas adjacent to coastal locations preferred by monk seals for pupping and nursing” described the marine component of the areas that support Hawaiian monk seal mothers and pups throughout birth, lactation and weaning. To simplify and clarify the role of this habitat in Hawaiian monk seal ecology we have combined the two features in this final rule to describe the entire area that supports Hawaiian monk seal reproduction and rearing as, “Terrestrial areas and the adjacent shallow, sheltered, aquatic areas with characteristics preferred by monk seals for pupping and nursing. Similarly, we have combined the two proposed essential features that described marine foraging areas that are essential to Hawaiian monk seal conservation as a single feature.”

With regard to the comment that the critical habitat designation is unnecessary where existing habitat protections exist, we incorporate the response to comment 14. The purpose of critical habitat is to identify the occupied areas that contain features that are essential to the conservation of a listed species and the unoccupied areas that are essential to the conservation of the species. The best available information indicates that marine foraging areas out to 200 m are essential to support conservation of the Hawaiian monk seal throughout its range. While the ESA provides NMFS with broad discretion to exclude areas from designation based on consideration of national security, economic, and other relevant impacts, it does not provide authority to exclude areas where essential features are found merely because those areas may be subject to existing conservation measures.

Finally, we agree with the DLNR that haul-out areas need to be physically accessible to seals. In the proposed designation we indicated that those areas in the MHI that were inaccessible, such as cliffs, were not considered to meet the definition of Hawaiian monk seal critical habitat. However, as noted in the Summary of Changes From the Proposed Rule section, we did not clearly state that these areas are not included in the NWHI portion of the designation. Accordingly, we have revised the final rule to clarify that areas found within the boundaries of this final designation that are inaccessible to monk seals, such as cliffs and manmade structures, are not designated Hawaiian monk seal critical habitat because they do not meet the statutory definition.

Comment 25:

One comment argued that the low survival rate of pups and juvenile monk seals is the primary factor contributing to the decline of the population in the NWHI and recommended that the essential features focus on the habitat requirements of pups and juveniles, not adults. This comment went on to recommend that critical habitat in the MHI be revised to depths between 0-100 m to match preferred juvenile foraging habitat. Additionally, this comment went on to acknowledge if the 500 m depth is considered “essential” on the basis of a few dive records from the MHI, then NMFS should equally include all shoreline and adjacent marine areas with previous records of monk seal haul outs as these would also be considered essential, including Waikiki Beach, Kaneohe Bay, and Hanalei Bay.

Response:

The ESA defines critical habitat to include occupied areas that contain those physical or biological features essential to the conservation of the species, and which may require special management considerations or protections. We believe that providing protections only to those features that provide a service to a particular life-history stage of the species, without regard to the habitat needs of the listed species as a whole, is inconsistent with the ESA.

With regard to the depth contour selected for the designation, we have re-evaluated NWHI dive data and supplementary MHI tracking and dive data after considering this and other comments received regarding the clarity of the described essential features (see Summary of Changes from the Proposed Designation section of this rule). We have determined that foraging habitat that supports all age classes of Hawaiian monk seals and is essential to the conservation of the species is best described as foraging areas out to a depth of 200 m. This depth boundary encompasses foraging habitat that supports a majority of diving behavior throughout the island chain and includes foraging habitat that will support recovery of seals in the MHI. Additionally, in the Critical Habitat Review Team Process section of the biological report (NMFS 2014a) we have clearly described the significant haul-out areas essential feature to better describe those coastal areas that support important terrestrial habitat for Hawaiian monk seal conservation.

Comment 26:

One comment agreed that pupping and nursing areas are essential features for Hawaiian monk seals, but disagreed that haul out areas may be described as equally essential and contended that identifying most of the coastline as critical habitat is misleading or inadequate. This comment asserted that seal terrestrial use is most sensitive during pupping and rearing stages, and that seal haul out locations are not as resource/site specific or sensitive. The comment went on to further state that areas with no known seal activity cannot be assumed to be critical habitat and that haul-out habitat and reproductive habitat need to be delineated and mapped.

Response:

We agree with the commenter that pupping and nursing areas are an essential feature for Hawaiian monk seal critical habitat, but maintain that the evidence shows that haul-out areas are an essential feature as well. A feature is essential if it provides an essential service or function to the conservation of the listed species and may require some form of management or protection. As noted in the biological report, monk seals use haul-out areas for resting, molting, and as a refuge from predators. Additionally, frequented haul-out areas provide space for social interactions with other seals and support behaviors associated with mating and reproduction. Although monk seals may use a variety of accessible areas of coastline for hauling out, there are areas of coastline where monk seal haul out activity is more prevalent, and we believe these areas are essential to promote natural monk seal behaviors. In the proposed rule, we recognized that preferred pupping and nursing areas and significant haul-out areas do not occur continuously along the coastlines and, after considering public comments, we recognized that we could provide greater clarity on where features are found (see Summary of Changes from the Proposed Designation section of this rule). These more precise descriptions were then used to identify where the essential features exist within each specific area and we have revised the boundaries of the designation to reflect more accurately those areas that meet the definition of Hawaiian monk seal critical habitat. We are satisfied that this approach has identified sufficient haul-out habitat to meet the needs of a recovered monk seal population in the MHI.

Comment 27:

One comment asserted that the proposed rule failed to take into account the “Hawaii reef strategy: Priorities for the management in the main Hawaiian Islands 2010-2020” (State of Hawaii 2010) when considering food limitations in the NWHI as a basis for including marine foraging areas as an essential feature. The commenter indicated that the State of Hawaii (2010) publication states that standing fish stock in the NWHI is 260 percent greater than in the MHI, and that most of the dominant species that are present, regardless of trophic level, are nearly

always larger in the NWHI than in the MHI. The commenter questioned whether food limitations were a threat to the species.

Response:

We believe that the commenter incorrectly equates the numbers presented in the Hawaii reef strategy to available prey resources for monk seals. These numbers are taken from a study by Friedlander and DeMartini (2002), which compared density, size, and biomass of reef fishes between the NWHI and the MHI to consider how fishing has affected assemblages in the MHI. The NWHI numbers include the apex predator biomass, which was reported as 54 percent of the total fish biomass in the NWHI (Friedlander and DeMartini 2002), as well as other fish species that are generally not considered prey resources for Hawaiian monk seals. While we agree that total fish biomass is greater in the NWHI than the MHI, this difference in biomass does not equate to available prey resources for monk seals and does not take into account the number of predators competing for those resources.

As noted in the proposed rule, the best scientific information available, including evidence of seal health, growth, survival, and fecundity in the NWHI (Baker 2008), indicates that food limitations are primarily responsible for the decline of the monk seal population in the NWHI.

Comment 28:

We received a few comments in agreement with the proposed essential features, and these comments identified the important role that critical habitat plays in providing protections for features and habitat to support recovery. Among these comments, the Marine Mammal Commission asserted that the descriptions of the physical and biological features are adequate and that the list of habitat types are complete and appropriate for consideration as essential.

Response:

We acknowledge these comments. We have further evaluated the role that each proposed feature plays in monk seal survival and recovery and have made minor clarifications to resolve confusion over differences between identified features, the importance of specific habitat areas, and the characteristics which describe these areas. We refer to the Summary of Changes from the Proposed Designation section of this rule and our responses to the comments regarding the essential features 35-39 for additional details.

Best Available Science

Comment 29:

A commenter argued that the rationale behind the 500 m depth boundary in the MHI was inconsistent with section 4(b)(2) of the ESA requiring the use of the best available information. This comment went on to note that current diving information indicates that monk seals forage within the 200 m isobaths in the MHI and that the unpublished MHI diving data presented in the proposed rule is limited and only demonstrates that monk seals are capable of diving to these depths, not that these depths are “preferred.” This commenter also argued that there is no literature to indicate that intra-specific competition plays a role in food limitation in the NWHI; therefore, NMFS' rationale for expanding MHI boundaries to 500 m to accommodate both population increase and intra-specific competition in the MHI is speculative.

Response:

We have re-evaluated the information used to support the proposed essential feature for marine foraging areas and agree that only those marine foraging areas in water depths of 0 to 200 m are essential to the conservation of the Hawaiian monk seal (see discussion in the Summary of Changes from the Proposed Designation section of this rule for further information).

As noted in the proposed rule, decline of the monk seal population in the NWHI has been attributed to food limitations, and evidence supporting this conclusion has been demonstrated by evaluating seal health, growth, survival, and fecundity in the NWHI (Baker 2008). Several factors may influence the availability of prey resources and intraspecific competition (competition between the same species) has been one of the factors indicated in the literature as playing a role in food limitations in the NWHI. For example, Craig and Ragen (1999) indicated that an earlier population boom at French Frigate Shoals Atoll may have led to more pronounced declines in juvenile survival in the late 1980s-1990s in comparison to Laysan Island's subpopulation, because juvenile seals at French Frigate Shoals faced more competition during periods of low productivity. We believe that the substantial overlap demonstrated in the generalized home ranges of seals within resident areas of the NWHI (Stewart

et al.

2006) indicate that these seals are using similar resources and that some degree of intraspecific competition is occurring. The literature also indicates that interspecific competition with other predatory fishes is occurring (Parrish

et al.

2008) and that changes in overall abundance and distribution of prey due to climate-ocean factors is influencing food availability for Hawaiian monk seals in the NWHI (Polovina

et al.

1999, 1995; Antonelis

et al.

2003, Baker

et al.

2007; Baker

et al.

2012). Within the complexity of ecosystem dynamics it is difficult to measure how much any one of these factors is influencing food limitations for Hawaiian monk seals; however, all factors contribute to Hawaiian monk seals' ability to successfully forage.

As noted earlier, dive data collected in the MHI indicate that seals are using areas from 100-200 m less frequently than their NWHI counterparts; however, Hawaiian monk seals are capable of diving and foraging at depths exceeding 550 m (Stewart

et al.

2006). Available scientific information indicates that foraging behaviors in the MHI are similar to seals in the NWHI in that seals' foraging focuses on submerged banks and most seals focus their foraging efforts close to their resident island (Cahoon 2011). Baker and Johanos (2004) suggest that monk seals in the MHI area are experiencing favorable foraging conditions due to decreased competition (both interspecific and intraspecific) in these areas, which is reflected in the healthy size of animals and pups in the MHI. This theory is supported by Cahoon's (2011) recent comparisons of foraging trip duration and average foraging distance data between these two areas, which indicates that MHI seals do not travel as far or as long as NWHI seals.

In both the proposed and this final rule, we noted that marine foraging areas that are essential to Hawaiian monk seal conservation are at the same depth in the NWHI and in the MHI. Although a majority of MHI monk seal foraging activity currently occurs at depths that are shallower than their NWHI counterparts, MHI seal numbers are still low (approximately 153 individuals) and expected to increase (Baker

et al.

2011). We anticipate that as seal numbers increase around resident islands in the MHI, seals' foraging ranges will expand in order to adjust as near-shore resources become shared by more seals whose core foraging areas may overlap. As density-dependent factors are known to influence large mammals and have been shown to influence pinnipeds within specified geographic areas (Kuhn

et al.

2014), NMFS is satisfied that foraging areas out to 200 m depth are essential for monk seal conservation throughout the species' range.

Comment 30:

We received one comment that NOAA had not met its obligations for decision making under the ESA to use the best available scientific information because the CHRT considered factors such as economic

and societal impacts in the biological report.

Response:

The commenter is misinformed about the role of the CHRT and the biological report in our decision making process. Our decision to designate critical habitat is consistent with the requirements of section 4(b)(2) of the ESA, which requires that we designate critical habitat using the best scientific data available after taking into consideration economic, national security and other relevant impacts. Our CHRT, consisting of biologists from NMFS PIFSC and PIRO with expertise in Hawaiian monk seal research and management, was responsible for using the best available scientific data to identify the features that are essential to Hawaiian monk seal conservation and this information was summarized in the biological report (NMFS 2014a), which was peer reviewed by independent scientific experts. A complete economic analysis was separately conducted by consultants with expertise in economics and reported in an economic analysis report (Industrial Economics 2014). The draft economic analysis report was subjected to rigorous review by three independent peer reviewers, and the report was revised for this designation in response to comments received from peer reviewers and the public. Our decision to designate critical habitat was based on a thorough consideration of public comments as well as all information contained in the biological report, the economic report, national security impacts identified by the DOD or Department of Homeland Security, and other relevant impacts, and the weighing process for this is outlined in the 4(b)(2) report as well as this final rule.

Areas Proposed

Comment 31:

Several comments questioned the rationale behind expanding the critical habitat designation to the MHI because of differences in environmental conditions between the NWHI and the MHI. Some of these comments question the seals' ability to recover in areas of high human use, when they are not recovering in the “pristine” areas of the NWHI. Still other comments propose that the inability to survive in a “pristine” environment indicates that the seals are naturally headed towards extinction.

Response:

Our response to comment 15 clearly outlines the regulatory and scientific rationale that generated this revision. Additionally, as previously stated, the proposed critical habitat areas were selected by identifying those areas that have the features essential for monk seal conservation, in accordance with the definition under the ESA.

Habitat throughout the MHI meets the definition of critical habitat because it contains features essential to Hawaiian monk seal conservation, including preferred pupping and nursing areas, and foraging areas. Since the 1988 designation of critical habitat, Hawaiian monk seals have naturally increased in numbers in the MHI. The continued growth and health of monk seals in these areas demonstrate that monk seals are doing well in MHI habitat, despite any perceived conflicts with human uses. As indicated in the Hawaiian monk seal recovery plan (NMFS 2007a), MHI habitat must support a minimum of 500 seals as part of the recovered population for this species. Critical habitat provides a mechanism to protect some of the habitat necessary for this recovering population.

We disagree with comments that imply that the decline of the Hawaiian monk seal is a natural progression to extinction because the decline is occurring in a “pristine” environment. Although often portrayed as pristine, the NWHI ecosystem has been subject to intense anthropogenic perturbations including harvesting of seabirds, turtles, monk seals, sharks, fish, invertebrates, and island resources (Schultz

et al.

2011), which have impacted the integrity of this complex marine ecosystem. Historical records of extraction give a rough estimate of the difference in biological assemblages of commercially sought after species, but there is not enough information to understand how key relationships in this environment may have been altered. However, the lack of recovery in certain species such as Hawaiian monk seals, pearl oysters, and two lobster species (Schultz

et al.

2011) provides evidence that the current assemblage of species continues to reflect an altered system. While human extraction has been mostly eliminated as a threat in the NWHI, historical perturbations left remnants of these populations to survive in a habitat that was undoubtedly altered by human activities. Small population size leads to instability in population dynamics, which leaves small populations more vulnerable to the changes that occur within their ecosystem, especially to changes in resource availability (Copenhagen 2000). Although the current decline in the NWHI monk seal population appears to be a result of resource limitations that may be associated with climate and ocean variability (Baker

et al.

2012), the populations' natural ability to withstand ecological shifts in their environment was most likely altered by earlier human exploitation. Describing the decline of the Hawaiian monk seal as a natural event overlooks the impacts that historical human exploitation has had on this population and its environment.

Regardless of the cause of the decline, the ESA requires that we work to mitigate the threats to this species to assist in its survival and recovery. Recovery in the NWHI may require additional time for the ecosystem to stabilize, but active management efforts are important to bolster the resilience of the monk seal population. As previously stated in our response to comment 15, we recognize that a critical habitat designation will not alone mitigate these problems in the NWHI; however, the designation is required by the ESA and is expected, along with other conservation efforts, to facilitate the survival and recovery of the monk seal.

Comment 32:

Hawaii's DLNR submitted comments stating the proposed designation was overly broad and not consistent with the actual physical and biological needs of the Hawaiian monk seal. They suggested that NMFS take a more targeted approach to designate critical habitat by identifying the “best available habitat” that can be protected and managed for the species. The DLNR identified six qualities important for targeted areas. These included: (1) Relatively intact off-shore coral beds for feeding; (2) relatively secluded beaches and shorelines to provide haul-out; (3) resting, loafing, and pup rearing sites; (4) areas with low levels or potential for discharge of urban and industrial pollutants, erosion, and mammalian disease pathogens (they suggested we investigate Class AA water and exclude Class A waters identified by the State Department of Health to meet this quality criterion); (5) areas with low or infrequent human use of beach, ocean recreation, and surface boat traffic; and (6) areas where the above activities can be controlled. They additionally suggested directing management efforts towards those targeted areas to tie into the overall recovery efforts. Additional comments from the DLNR, received during the second public comment period, provided more detail about this targeted approach, noting that 34 percent of Hawaii's coastlines and adjacent reef habitat could provide more than enough high quality habitat and food for the Hawaiian monk seal consistent with the goals of the Federal recovery plan.

Response:

After considering this and other comments, we have further evaluated the proposed essential features and have refined them to better

describe how these features provide a service or function to the conservation of the Hawaiian monk seal. Additionally, we have revised the delineation of the designation to accurately reflect where these essential features exist, providing more precision to the designation. Some of the qualities recommended by the DLNR are already incorporated in the designation, including resting and pupping sites. However, other qualities recommended by the DLNR focused on the human-use of the area and, although we did consider human-uses when conducting our exclusion analyses for national security, economic, and other relevant impacts under our section 4(b)(2), we believe that the approach described by DLNR does not adequately consider the ecology of the species or the best scientific information available regarding Hawaiian monk seal habitat use, as required by the ESA. In particular, under the ESA, if the occupied habitat contains those features that are essential to conservation of the species and NMFS determines that they may require special management considerations or protection, then the habitat area is subject to critical habitat designation, unless an appropriate exclusion applies, regardless of human use of the area. We disagree that the ESA would have us designate only a portion of occupied habitat where there might be sufficient forage, haul-out, and area to support the needs of the species within that habitat area, particularly when there are sizeable undesignated areas of occupied habitat that contain essential features outside that area. Moreover, we believe that the DLNR's assessments are unlikely to reflect the foraging needs of a recovered population of the Hawaiian monk seal, because their assessment includes all available biomass and focuses on fish species that have limited overlap with the Hawaiian monk seal diet.

Focusing on the ecological patterns and needs of the species, we have identified preferred pupping areas, significant haul-out areas, and foraging areas to 200 m. The areas designated meet the definition of critical habitat and this designation will support Federal agencies (as well as State and local agencies) in planning for the protection of resources for Hawaiian monk seal conservation throughout the areas designated.

Comment 33:

A few comments requested that additional occupied areas be considered for inclusion in the proposed designation to provide further protections for areas that monk seals use or for important habitat features.

A couple of these comments noted that monk seals currently occupy beaches with disturbance and manmade structures, including Waikiki and Maunalua Bay on Oahu, and one comment even noted that a monk seal pup had been born at the Honolulu airport on property not proposed for designation. These comments suggested adding such areas to the designation because they are important to monk seals despite the presence of manmade structures.

One comment requested that we include marine areas a specific distance from land rather than at a specified depth. This comment expressed concern that the 500 m depth contour is reached quickly off the Island of Hawaii, and that monk seals have been seen in these areas and should be protected. Another comment recommended including areas further inland than 5 meters in order to provide adequate vegetative habitat for monk seals to use as shelter. Lastly, a comment recommended that areas with poor habitat quality be included in the designation, and questioned whether improved water quality and other factors could make an area eligible for designation.

Response:

The definition of critical habitat requires us to identify the specific areas within the geographical area occupied by the species at the time of listing that contain physical and biological features essential to the conservation of the Hawaiian monk seal, and which may require special management considerations or protections, or identify those specific areas outside the geographical area occupied by the species at the time of listing which are essential to conservation of the species. We did not include in this designation portions of the coastline that include large stretches with manmade structures, such as Waikiki, because these areas do not support features essential to the conservation of Hawaiian monk seals (not because these areas are high human use areas). We acknowledge that individual monk seals may use some manmade areas throughout the range for various purposes because these areas are accessible to seals; however, monk seal sighting data indicate that these areas are used at a lower frequency than other areas, and do not have the same importance to monk seal ecology. Monk seals still receive protections under the ESA throughout their range (see response to comment 11), including in areas with manmade structures that are not included in the designation; however, these areas would not receive the protections provided by a section 7 consultation to ensure that critical habitat is not likely to be destroyed or adversely modified by an action with a Federal nexus.

The marine boundary for the critical habitat designation is set to encompass those areas where essential features exist; specifically, in the marine environment this includes preferred foraging areas to a depth of 200 m. While we acknowledge that monk seals may use habitat outside of these depth boundaries and at various distances from shore throughout its range, we have not identified the existence of essential features in other areas of the range. Because monk seals' preferred prey species are bottom-associated, essential foraging areas are described using the depth contour where monk seals' preferred prey species and foraging areas exist. Tracking information from across the MHI, including off the Island of Hawaii, indicates that a majority of diving behavior occurs within the 200 m depth boundary. In some areas, such as areas off the Island of Hawaii, the bathymetric gradient increases quickly; however, we have no information to indicate that deeper areas are essential to Hawaiian monk seals or that features a specific distance from shore are in some way essential to the ecology of the Hawaiian monk seal.

We have considered the request to include areas further inland than 5 m from the shoreline to provide adequate vegetative habitat as shelter for Hawaiian monk seals; however, we have determined that the areas 5 m inland from the shoreline provide adequate space to encompass significant haul-out and preferred pupping areas as features that are essential for the conservation of Hawaiian monk seals. Monk seals occasionally haul out under vegetation, presumably for shelter; however, we have not determined that vegetation is itself an essential feature, although it is certainly a characteristic found in certain preferred areas.

Lastly, with regard to the comment about poor habitat quality, we emphasize that areas that were not included in the designation lack the features essential for monk seal conservation. Nevertheless, we are not precluded from revising the designation in the future should information indicate that features (which may require special management) essential to Hawaiian monk seal conservation, such as natural preferred pupping areas, or significant haul out areas, exist outside of the areas designated as critical habitat.

Comment 34:

One comment expressed concern that the exclusion of manmade structures and its description in the

proposed rule is vague, and may lead to unintended adverse impacts on monk seal critical habitat. This comment recommended that we be more explicit that new Federal actions in the vicinity of such manmade structures may still trigger consultation requirements.

Response:

We acknowledge that our list of potential existing manmade structures is not exhaustive, but that it is important for providing effective notice to recognize that these structures do not have the features essential to Hawaiian monk seal conservation. To provide further clarity we have included a more complete list of examples to include docks, seawalls, piers, fishponds, roads, pipelines, ramparts, jetties, groins, buildings, and bulkheads. With regard to concerns about unintended impacts to critical habitat, we anticipate that most Federal actions will already be undergoing consultation to consider the effects that the activities may have on Hawaiian monk seals. Accordingly, in most cases, we will be able to identify any potential impacts to critical habitat during the existing consultation process. Even so, we recognize that protection for these features includes continued outreach and we have noted in this designation that activities that are carried out, funded, or authorized by a Federal agency which have the potential to affect Hawaiian monk seal critical habitat are subject to section 7 consultation under the ESA.

Comment 35:

One comment stated that the proposed rule's exemption of military bases, Waikiki Beach, and Kaneohe Bay “implies that there is no specific critical habitat as proposed, to be

essential to the conservation of the Hawaiian monk seal”

(emphasized by commenter). The comment goes on to state that Waikiki beach is an excellent haul out and pupping area and that the exemption of this area suggests that it is to avoid consultation for sand replenishment activities for the State of Hawaii. The comment states that monk seals haul out, pup, and occupy waters wherever they choose, so specifically exempting areas is unrealistic.

Response:

As indicated in our response to comment 14, within occupied habitat, the definition of critical habitat includes those areas where features exist essential to the conservation of the species which may require special management consideration or protection. We note that the features, not the area in which they are found, are what are considered essential to conservation of the species, and a critical habitat designation identifies those features that are to be protected from destruction or adverse modification. As identified in the biological report, monk seals may use accessible terrestrial habitat throughout their range for the purposes of hauling out or pupping; however, we have included only those areas that meet the definition of critical habitat in the designation; in other words, those areas that contain features that are essential to the conservation of the species.

Waikiki was not included in the proposed designation because this area does not contain those essential features of Hawaiian monk seal critical habitat,

i.e.,

the area does not have features that support a preferred pupping area or significant haul-out area. As noted in the

Summary of Changes From the Proposed Critical Habitat Designation

section, we have refined the description of preferred pupping areas and significant haul-out areas to clarify the roles that these features play in Hawaiian monk seal ecology and to identify better where these features are located. Although monk seals may occasionally haul out along Waikiki, monk seal sighting information indicates low use of the area in comparison to other areas on Oahu, such that it does not meet the criteria established for a significant haul-out area. Contrary to the commenter's assertion, we have no record of pupping occurring on Waikiki beach. Further, large portions of this coastline contain manmade structures, such as harbors, seawalls, groins or buildings that do not support monk seal conservation and are not included in the designation. This final designation includes portions of marine habitat in Kaneohe Bay that support Hawaiian monk seal foraging areas; however, the 500-yard buffer of marine area that surrounds the Marine Corps Base Hawaii (MCBH) on the Mokapu peninsula is ineligible for designation under 4(a)(3) of the ESA (see the

Military Areas Ineligible for Designation (4(a)(3) Determinations

section of this rule). In conclusion, we have not exempted these areas due to the human activities associated with these sites; rather we have not included these areas because either they lack the features that are essential to monk seal conservation, or they have been precluded from designation under 4(a)(3) of the ESA.

Comment 36:

Several comments suggested that the proposed designation was inappropriate due to the excessive size of the designation. Among these, a couple of the comments also indicated that the proposed designation was contrary to section 3(5)(C) of the ESA. A comment received by the State DLNR argued that critical habitat should not include the entire geographic area of the State of Hawaii, and that the designation of all marine habitat everywhere is an abdication of responsibility to make an affirmative judgment regarding which areas are best suited for recovery and then actively manage those areas. Additionally, another comment indicated that the designation of critical habitat is limited to habitat that is essential for the conservation of a species that may require special management or protection, and that the entire area occupied may not be designated unless determined necessary by the Secretary. The comment argues that the Secretary must be discriminating when designating critical habitat and the decision must be supported by conclusive evidence.

Response:

According to section 3(5)(C) of the ESA, “critical habitat shall not include the entire geographical area which can be occupied,” by the listed species, except in rare circumstances where determined necessary. In other words, we are generally prevented from designating all occupied (

i.e.,

the current range) and unoccupied areas as critical habitat. The range for the Hawaiian monk seal includes the entire Hawaiian Archipelago and Johnston Atoll. The proposed designation was limited to 16 specific areas within the Hawaiian Archipelago, including foraging areas in greater depths. Therefore, we did not designate the entire geographical area which can be occupied by the Hawaiian monk seal.

In addition, as more fully explained in the biological report (NMFS 2014a), we have refined the essential features to account for supplemental information regarding habitat use in the MHI, and to clarify the description and location of essential features after considering public comment. These targeted changes have further reduced the overall size of the designation, while ensuring that the features identified in the original proposal as essential for monk seal conservation receive the full protection of critical habitat designation. We are satisfied that the final designation will appropriately meet the ecological needs of this wide-ranging species. As we have not designated the entire range of the species, nor have we designated any unoccupied critical habitat, the designation complies with section 3(5)(c) of the ESA.

With regard to the comment which suggests that habitat must be “essential,” we refer to our response to comment 14, and note that the definition of occupied critical habitat requires that the areas contain those physical or biological features that are essential to the conservation of the species and which may require special

management considerations or protection. These essential features are identified in this rule and in the biological report (NMFS 2014a), and the information about where those features exist provides evidence of why areas are designated as critical habitat that will support the survival and recovery of the species.

Comment 37:

A few comments stated that MHI habitat was not suitable for designation because seals will face more threats in these developed areas of the archipelago. The commenters identified that increasing seal numbers in the MHI would increase the likelihood that seals will encounter or be affected by these threats and that the MHI habitat may be of poor quality due to pollution, risk of disease transferred from domestic animals, and increased risk of human interactions. One of these comments suggested that the negative impacts make MHI habitat not qualify as critical habitat. Another comment suggested that the designation is based on the narrow-sighted view that it is “better” for the monk seals to live and reproduce in the MHI. The last of these comments stated that the population of tiger sharks has increased due to an increase in turtles around the MHI, and that these sharks would be likely to prey on juvenile monk seals.

Response:

We disagree that MHI habitat is unsuitable for designation. As noted in our response to comment 14, MHI areas were included in the designation with NWHI areas because all of these areas meet the definition of critical habitat. In the biological report and the 2007 recovery plan, we acknowledge that some threats differ between the MHI and the NWHI. The threats facing seals in the MHI may be significant, but this fact alone does not indicate that the habitat is of such poor quality that it does not meet the definition of critical habitat. In fact, the monk seal population in the MHI is increasing despite identified threats and in contrast to their NWHI counterparts. We believe this growth is attributable to favorable environmental conditions (see response to comment 16).

By designating critical habitat in the MHI, we are not suggesting that it is “better” for seals to live and reproduce in the MHI; rather, we have determined that essential features exist within occupied areas of the MHI which are important to monk seal survival and recovery, and that these features may require special management considerations or protection. As noted in the 2007 recovery plan for the species, healthy populations of seals will be necessary in both the NWHI and the MHI to meet recovery goals. Accordingly, critical habitat protections in both of these areas will assist in conservation efforts for this species.

Comment 38:

A number of comments suggest that expansion of critical habitat to the MHI is inappropriate or not beneficial to recovery, because the promotion of seal populations in the MHI increases the risk of harmful impacts to people and/or seals. Some of these comments expressed concern that seals will behave aggressively towards people, either harming residents and tourists, or stealing food from fishermen, especially as seal numbers increase. Other comments suggested that aggressive seal behavior or increased restrictions will create animosity towards seals and may cause people to retaliate, consequently increasing the risk of harm to seals and hindering recovery efforts. Additional comments suggested that increased seal numbers in the MHI would increase the number of predatory sharks found in MHI waters, which may result in more shark attacks on people. One additional comment suggested that seals may affect people by bringing disease.

Response:

See our above discussion of the rationale for finding that HMS critical habitat exists in the MHI and recovery benefits of MHI critical habitat. With regard to effects of Hawaiian monk seal critical habitat and seals in the MHI on people, see our response to comment 37.

With regard to challenges associated with human interactions in the MHI, all scientific evidence, field observations, and public reports to date indicate that public safety risks associated with Hawaiian monk seals in the wild are extremely low. Monk seals are not aggressive by nature and only exhibit aggressive behavior toward humans when they feel threatened or when previous interactions have been encouraged, causing the animal to seek out human contact. Through our MHI management efforts and planning we will continue to conduct activities to prevent and mitigate these human-seal interactions, and work with the public to increase awareness and understanding to foster peaceful coexistence in Hawaii's coastal areas. With regard to the concern about sharks, there is currently no evidence that more monk seals in the MHI will lead to more shark attacks on humans. While the monk seal population has increased in the MHI over the past 10 years, incidents of shark attacks on people have shown no corresponding increase. Additionally, there is no evidence that the population growth of Hawaiian monk seals in the MHI presents an increased disease risk to humans.

Activities Affected by the Designation

Comment 39:

The National Defense Center of Excellence for Research in Ocean Research (CEROS) program requested that categorical exceptions be considered for routine ocean science field activities, which they suggested could be seriously affected by the proposed designation. CEROS requested clarification about the procedural steps associated with the section 7 consultation process and noted concerns that the procedure could include reviews or public comment periods that may make it impossible for the research to be carried out within the 12-month contracted period of performance.

Response:

In designating critical habitat we are not able to provide categorical exceptions from section 7 obligations for specific activities. Although section 4(b)(2) of the ESA allows for the consideration of exclusion for particular areas where the benefits of exclusion may outweigh the benefits of designation, impacts to these types of activities are expected to be low (Industrial Economics 2014). Therefore, we did not exclude areas where these activities are prevalent (see also response to comment 52).

For clarification, procedural steps associated with the Section 7 process may be found at the following Web site:

http://www.fpir.noaa.gov/PRD/prd_esa_section_7.html.

A final critical habitat designation does not create new or unknown procedures, nor does it create a new public comment period associated with Federal actions. The final critical habitat designation creates an additional obligation for Federal agencies under section 7 of the ESA to insure that actions that they carry out, fund, or authorize (permit) are not likely to destroy or adversely modify critical habitat. As consultation is already required for federally funded research activities under the jeopardy standard, we do not anticipate the additional consultation standard of destruction or adverse modification of critical habitat to result in significant, additional project delays.

Comment 40:

Comments requested that restrictions be placed on jet skis, long-term camping and permanent structures, such as homes with leaking septic systems, to prevent disturbance and pollution in critical habitat areas.

Response:

Protections for critical habitat are established under section 7 of the ESA and are specific to Federal activities that may affect Hawaiian monk seal critical habitat, including those activities that are authorized, funded or carried out by a Federal

agency. Private activities, such as jet skiing or camping that are not linked to a Federal activity are not subject to section 7 consultation requirements. See our response to comment 14 for further information on the protections that critical habitat provides for a listed species.

Comment 41:

We received comments from the Center for Biological Diversity and KAHEA: The Hawaiian-Environmental Alliance expressing concerns and providing details about the threats of sea level rise, global warming and ocean acidification to monk seal critical habitat. The comment asserted that the global scope of these threats did not excuse the need to manage anthropogenic greenhouse gas contributions that are affecting monk seals and their habitat.

Response:

The biological report (NMFS 2014a) recognizes that processes associated with global climate change may alter the availability of coastal habitat and/or the range and distribution of Hawaiian monk seal prey species. Unfortunately, at this time, the scope of existing science does not allow us to predict the resultant impacts to Hawaiian monk seal critical habitat with any certainty. We recognize the need to manage for this threat and as impacts from these forces are better understood, activities that exacerbate impacts to the essential features will be further scrutinized and associated management efforts may be pursued. At this time, no single activity has been identified as contributing specifically to these threats in the economic analysis (Industrial Economics 2014). Nonetheless, climate change impacts will be accounted for through the individual consultation process when individual project details are known.

Comment 42:

One comment stated that the proposed critical habitat and the 2007 Hawaiian Monk Seal Recovery Plan do not adequately factor future critical habitat loss to erosion and global sea level rise, especially in the low elevation of the NWHI. This comment suggested that the recovery plan must be revised before implementing critical habitat.

Response:

We disagree. Both the 2007 Hawaiian Monk Seal Recovery Plan and the critical habitat designation consider the impacts of habitat loss to erosion and sea level rise, based on the best available science at the time of publication. The Hawaiian monk seal recovery plan (NMFS 2007) recognizes the threat of habitat loss to Hawaiian monk seal habitat and provides recommendations to assist in conserving habitat throughout the species' range. Among these, the plan recommends maintaining and expanding the current ESA critical habitat designation and recommends exploring habitat restoration in the low lying areas of the NWHI.

For this critical habitat designation we considered the threat of habitat loss linked to erosion and sea level rise in both the proposed rule (74 FR 27988; June 12, 2009) and the biological report (NMFS 2014), and how these threats may affect the features essential to Hawaiian monk seal conservation. Specifically, we considered how habitat in the NWHI and the MHI may be affected by this threat and we incorporated features that will support recovery for the Hawaiian monk seal in this predominantly low-lying coastal and marine habitat.

The low lying areas of the NWHI experience erosion and saltwater inundation throughout the year due to storm activity and storm surges, and we anticipate flooding and inundation from future storm activities and/or future variations in sea level (Baker 2006). With these considerations in mind, we determined that essential features exist across these low-lying and dynamic islands and islets and we included all islands and islets existing within the specific areas previously designated in 1988. In the MHI where coastal habitat may not shift as dramatically, we have determined that essential features exist within a relatively short distance from the shoreline, where Hawaiian monk seals haul out to rest, molt, or pup. We included habitat 5 m inland of the shoreline to ensure that terrestrial habitat inland of the shoreline which provides space for hauling out remains incorporated in the designation.

We believe that we have considered the threats identified in the comment using the best available information to inform this designation. We find no reason to support delaying the critical habitat revision until such time that the Recovery Plan is updated. A revised designation assists recovery efforts by providing protections from some activities that may exacerbate threats associated with habitat loss and provides important planning information for government agencies. Further, should additional information become available regarding features or areas that are essential to conservation of the Hawaiian monk seal outside of this designation we may revise the designation to protect those features or areas.

Comment 43:

A few comments requested clarification about whether the following activities may be subject to section 7 consultations as a result of the proposed designation: all Army Corps of Engineers Clean Water Act section 401 and section 404 permits, National Pollutant Discharge Elimination System (NPDES) permits, Federal highway projects in proximity to the ocean or which cross waters flowing to the ocean, state programs that are funded by Federal money such as the Dingell-Johnson funds, open ocean effluent dumping, and federally funded community and education programs. One comment questioned whether consultation could result in delays in funding or if permitting or increased fees were possible. Additionally, this commenter asked whether NMFS has the capacity to process such permits or consultations.

Response:

The requirement for section 7 consultation is triggered when an activity is (1) carried out, funded, or authorized by a Federal agency (

i.e.

, a Federal nexus is established), (2) the agency retains discretionary involvement or control over the activity, and (3) the activity may affect an ESA-listed species or its designated critical habitat. In some cases, Federal agencies may determine that the action will have no effect on a listed species or its critical habitat, in which case the agencies' obligations under section 7 are satisfied. The activities identified in the comment have a Federal nexus and therefore must undergo section 7 consultation.

As noted in the economic report (Industrial Economics 2014), Clean Water Act section 404 permits are issued by the Army Corps of Engineers for the discharge of dredged or fill material into wetlands and other waters of the U.S. Any Federal permit or license authorizing a discharge into the waters of the United States also requires a Clean Water Act section 401 Certification from the State of Hawaii indicating that State water quality standards have been met. Activities subject to this type of federal permit and which may have the potential to impact Hawaiian monk seal essential features are described under three activity categories in the economic report: in-water and coastal construction, dredging and disposal of dredged materials, and energy projects (discussions about these activities may be found in Chapters 3, 5, and 6 of the economic report respectively). Federal highway projects in proximity to the ocean or which cross waters flowing to the ocean are also discussed under Chapter 3, in-water and coastal construction. Impacts to these three activities (in Chapters 3, 5, and 6) from the consultation process are described as largely administrative in nature; however, depending on the location and scope of the project (

e.g.

,

adjacent to preferred pupping and nursing areas) additional project modifications may be required to avoid impacts to Hawaiian monk seal critical habitat.

As identified in Chapter 9 of the economic report (Industrial Economics 2014), the EPA has delegated its authority to implement and enforce the Clean Water Act to the Hawaii Department of Health Clean Water Branch (CWB), which includes the issuance of NPDES permits. Once EPA has approved a state's NPDES permitting program and transfers responsibility for issuing water pollution permits to that state, section 7 will not apply to permitting decisions. Recognizing this, the EPA signed a Memorandum of Agreement with the Fish & Wildlife Service and NMFS (66 FR 11202, February 22, 2001) through which the EPA, in exercising its continuing oversight of state permitted discharges, may communicate and address protected species concerns to state pollution permitting agencies and work collaboratively to reduce the detrimental impacts of those permits. In appropriate circumstances, and where consistent with the EPA's CWA authority, EPA may object to and federalize the permit. However, in no circumstances are states bound to dire

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