Regulating the Marine Environment

7/30/2019 Regulating the Marine Environment

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Coastal Marine Spatial Planning and the

Endangered Species Act Two Case Studies

Paper by: Karen Schmidt

Regulating the Marine Environment

Professor Wroth

Fall 2011


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Abstract: This paper presents an analysis of the potential conflict between the Coastal ZoneManagement Act (and its practical implementation through Coastal Marine Spatial Planning) and

the holistic approach to ecosystem-based management espoused by the Endangered Species Act.In particular, this paper focuses on the interplay between these laws and then utilizes a few

specific examples/locations where this conflict may arise. This paper also addresses the use of

critical habitat designations under the Endangered Species Act and how the use of Marine SpatialPlanning may benefit or harm critical habitat designations, thereby requiring Endangered SpeciesAct consultation. Front page photograph taken by Karen Schmidt in Fajardo Puerto Rico, on a

beach area proposed for Endangered Species Act Critical Habitat designation.

I. INTRODUCTIONNearly half of the entire global population resides within one hundred kilometers of a

shoreline.1

With global populations projects to rise to nine billion people by 2050, increased

population will likely affect coastal ecosystems at a disproportionate rate. Human populations

depend on the important ecosystem benefits derived from coastal regions, thereby presenting amajor management challenge of maintaining this delicate resource in the future in the face ofincreased population and development pressures. Moreover, management of coastal ecosystems

is further stressed by increased offshore energy development and increased shipping traffic.

The convergence of a multitude of human pressures on the worlds coastal ecosystemsrequires important attention to the use of management tools and how local and national

government intend to use these management tools for either the preservation or exploitation thecoastal regions. In fact, the current movement towards use of spatial planning as a joined

approach that marries the seemingly competing interests for ocean and coastal resources andspace, such as environment, tourism, fisheries, and energy generation

2may present the

opportunity for regulatory competition between uses with certain uses given vast governmental

priority. The present regulatory trend attempting to account for multiple anthropogenic uses ofland and resources within the coastal regions is based on the use of marine spatial planning toachieve Ecosystem-Based Management (EBM). Marine spatial planning as a tool for achieving

EBM has garnered much enthusiasm over the past five years, without much accounting for itsactual long-term successes and limitations. While the goals of EBM are lofty, practically

speaking they may be more difficult to implement. This paper analyzes the more practicalimplications of EBM as a goal and marine spatial planning as the tool for achieving this goal.

Lawmakers tout the use of EBM to deal with vast coastal management problems such asoverfishing, pollution, and unplanned urban development.

3The idea is that by managing the

interior lands, coastal development, and ocean development and use in a more holistic manner,

better decisions will be made for preservation of the entire ecosystem considered as a while.Specifically, lawmakers provide the following reasons when describing the need for EBM:conflicts between various uses, conflicts between the cultures of different user groups, conflicts

between jurisdictions charged with management, fragmentation of jurisdictions, and

1Christopher Small & Robert J. Nicholls,A Global Analysis of Human Settlement in Coastal Zones, 19 J. Coastal

Research 584 (2003).2

UNEP, Taking Steps toward Marine and Coastal Ecosystem-Based Management An Introductory Guide (2011)

at 6.


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fragmentation of decision-making.4

As such, EBM is defined as an approach that goes beyondexamining single issues, species, or ecosystem functions in isolation. Instead it recognizes

ecological systems for what they are: a rich mix of elements that interact with each other inimportant ways.

5

This paper will first discuss two potential methods of coastal EBM implementation underU.S. law and regulationsthe Endangered Species Act (ESA) and the Coastal Zone

Management Act (CZMA). This paper will then utilize two case studies to demonstrate howthese two separate and overlapping regulatory schemes may be used to further the goals of

multiple uses under EBM or, by contrast, to preserve entire ecosystems. Finally, the paperanalyzes the successes and challenges of both approaches towards furthering the goal of marine

species protection and coastal ecosystem preservation.

II. STATUTORY FRAMEWORK FOR ECOSYSTEM-BASED MANAGEMENTWithin the context of U.S. coastal management law, two statutes present the potential for

utilization of EBM principlesthe Endangered Species Act (ESA) and the Coastal Zone

Management Act (CZMA). This section first describes the relevant portions of these laws andunderlying regulations and how use of these laws may further the implementation of EBM.Second, this section will describe the interplay between these two statutory frameworks and how

they complement each other in a manner furthering whole ecosystem management. Anunderstanding of the interplay of these two statutes is essential for the analysis of case studies

implementing EBM through these two regulatory schemes.

Coastal Marine Spatial Planning under the Coastal Zone Management Act

as a means of achieving Ecosystem-Based Management

On July 19, 2010, President Obama signed Executive Order 13547, establishing anational policy explicitly endorsing the use of coastal marine spatial planning as an ecosystem-

based approach to managing ocean and coastal development. Specifically, the order seeks toensure:

the protection, maintenance, and restoration of the health of ocean,

coastal, and Great Lakes ecosystems and resources, enhance thesustainability of ocean and coastal economies, preserve our

maritime heritage, support sustainable uses and access, provide foradaptive management to enhance our understanding of and

capacity to respond to climate change and ocean acidification, andcoordinate with our national security and foreign policy interests.

6

To achieve these goals, this Executive Order explicitly promotes the use of marine spatialplans to build on local, federal, and regional decisionmaking and ocean planning processes inorder to manage the oceans for sustainable multiple uses across sectors.7 Furthermore, the

3Id.

4Id. at 8.

5Id.

6Exec. Order No. 13547 (July 19, 2010).

7Id.


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Executive Order defines coastal marine spatial planning as a comprehensive, adaptive,integrated, ecosystem-based, and transparent spatial planning process, based on sound science,

for analyzing current and anticipated uses of ocean, coastal . . . identify[ing] areas most suitablefor various types or classes of activities in order to reduce conflicts among uses, reduce

environmental impacts, facilitate compatible uses, and preserve critical ecosystem services to

meet economic, environmental, security, and social objectives.

8

The Executive Order tasks theNational Ocean Council to guide and implement the orders recommendations. The NationalOcean Council is thus following up on this directive through issuance of Strategic Action Plans

and stakeholder meetings, including one on the topic of marine spatial planning.

In discussing the need for use of marine spatial planning, lawmakers generally citeemerging issues such as increased traditional and renewable energy development in coastal

waters, increased shipping, aquaculture, and emerging global security issues.9

Lawmakers,scientists, policy experts, and Congress have thereby emphasizes the need for ecosystem-based

management in order to manage the increased conflicts among these types of ocean uses, greaterdemand for use and occupancy of ocean space, and greater need for conservation.

10Despite a

movement towards use of marine spatial planning over the past few years, implementation of theexecutive order is still forthcoming.

It is still unknown where use of coastal marine spatial planning will be codified federally.

Therefore, analysis of marine spatial planning is largely confined to state law implementation ofthis principle as a management tool. In particular, Rhode Island and Massachusetts have led the

way towards implementation of marine spatial planning tools as a means to develop oceanmanagement plans.

11However, use of state law aimed at implementing marine spatial planning

is only applicable to the states jurisdictional waters, generally up to three nautical miles from theshoreline.

However, federal involvement and actions may overlap with state ocean management

plans through the Coastal Zone Management Act (CZMA) consistency requirement. States mayincorporate ocean management plans into its approved coastal management program under theCZMA.

12Once the National Oceanic and Atmospheric Administration (NOAA) approves the

incorporation of an ocean plan utilizing marine spatial planning into the state management plan,the enforceable policies contained in the state ocean management plan may be applied to federal

actions in federal waters through the CZMA federal consistency provision.13

It is important tonote that NOAA incorporation of amendments to a states ocean plan is not a federal action

warranting review under the National Environmental Policy Act (NEPA) or the ESA. However,later federal actions occurring within state waters in accordance to a states ocean plan willtrigger these additional statutory regimes. As discussed below in the case study relating to

8Id.

9The Future of Ocean Governance: Building Our National Ocean Policy: Hearing before the Subcommittee on

Oceans, Atmosphere, Fisheries, and Coast Guard, 111th Cong. 56409 (2010) (statement of Hon. Nancy H.

Sutley, Chair, White House Council on Environmental Quality).10

Id.11

Id.12

Office of Ocean and Coastal Resource Management, State Jurisdiction and Federal Waters: State Coastal

Management Programs, Ocean Management, and Coastal and Marine Spatial Planning, at 2 (2011).13

Id.


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Massachusetts, NOAA has fully awarded the state incorporation of its ocean plan utilizingmarine spatial planning.

The Endangered Species Act and Critical Habitat Designation

as a means of Ecosystem-Based Management

When Congress passed the Endangered Species Act in 1973, it recognized that habitatloss through degradation and human encroachment was the primary threat to endangered speciespopulations. Specifically Congress noted that, If the protection of endangered and threatened

species depends in large measure on the preservation of the species' habitat, then the ultimateeffectiveness of the Endangered Species Act will depend on the designation of critical habitat.

14

In fact, the plain language of the ESA gives clear priority to the need for critical habitatdesignations as a means of species preservation and ecosystem conservation. The statute itself

states that the purposes of this Act are to provide a means whereby the ecosystem upon whichendangered species and threatened species dependmay be conserved.

15

Thereby, Congress was ahead of the game with respect to entire ecosystem management

when it drafted the ESA. Critical Habitat designation was developed as a legal tool beforedevelopment of EBM as a concept. This early acknowledgement of the importance of entire

ecosystems highlights the importance of such habitats before the use of in-depth planning andmapping techniques. By developing such strong statutory language, Congress recognized that

some areas are too special to allow for other uses, and therefore should be designated asprotected with higher priority given to the species inhabiting these areas.

Under the ESA, Critical Habitat is defined as the specific areas within the geographical

area occupied by the species, at the time it is listed . . . , on which are found those physical orbiological features (I) essential to the conservation of the species and (II) which may require

special management considerations or protection.16

Furthermore, Critical Habitat designations

may also include specific areas outside the geographical area occupied by the species at thetime it is listed that Fish and Wildlife Service (FWS) and/or the National Marine FisheriesService (NMFS) may determine are essential for the conservation of the species.

17

Designation of Critical Habitat for a species shall be designated by FWS or NMFSconcurrently with a listing of endangered or threatened under ESA.

18When determining the

location and extent of Critical Habitat designation and expansions of designations, FWS andNMFS are required to use the best scientific data available . . . after taking into consideration

the economic impact, and any other relevant impact, of specifying any particular area as criticalhabitat.

19Furthermore, when making the determination as to what areas constitute Critical

Habitat, FWS and NMFS consider the physical and biological features that are essential to the

conservation of a given species.

20

These features may include space for population growth and

14H.R. Rep. No. 887 at 3 (1976).

1516 U.S.C. 1531(b) (2006) (emphasis added).

1616. U.S.C. 1532(5)(A)(i) (2006).

1716 U.S.C. 1532(5)(A)(ii) (2006).

1816 U.S.C. 1533(a)(3)(A) (2006).

1916 U.S.C. 1533(b)(2) (2006).

2050 C.F.R. 424.12 (2010).


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species behavior, food, water, air, light, minerals, cover, shelter, breeding sites, reproductionsites, and historical habitat ranges.

21In delineating Critical Habitat, FWS and NMFS are

required to designate specific limits using reference points and lines found on standardtopographic maps of the area.

22Physical delineation and definitions of critical habitat may be

especially difficult to effectively obtain for marine species, even those that heavily utilize the

coastal regions, due to the highly migratory nature of marine species. The importance ofutilizing coastal marine spatial planning as the best available scientific data available toimprove designations is discussed below in the case study relating the Leatherback Sea Turtle

proposed Critical Habitat designation.

Moreover, any interested person may petition FWS or NMFS for a designation ofcritical habitat for any species listed or proposed to be listed.

23Additionally, interested persons

may petition for expansion of Critical Habitat designations if such areas contain physical andbiological features essential to, and that may require special management to provide for, the

conservation of the species involved.24

This provision allows for extensive public participationin the process of habitat preservation. In fact, a multitude of lawsuits are initiated every year to

force FWS or NMFS to designate critical habitat or to revise boundaries of critical habitatdesignations. The importance of allowing for public participation in this process is discussed

below in the case study relating to the Leatherback Sea Turtle proposed Critical Habitatdesignation.

Once Critical Habitat is designated for listed species, certain federal protections apply to

these designated areas. The ESA requires that all federal agencies engage in consultation withFWS and/or NMFS to insure that any action authorized, funded, or carried out by such agency .

. . is not likely to . . . result in the destruction or adverse modification of habitat of such specieswhich is determined by the Secretary . . . to be critical.

25Under this heightened federal

protection, agencies must insure that their actions or authorizations will not cause direct orindirect alteration that appreciably diminishes the value of critical habitat.

26Importantly for the

purposes of management of the coastal region, these heightened protections are triggeredwhenever federal authorization for a project is required. Some examples of this include

increased ship traffic authorizations, private construction projects located in river, harbors,wetlands, and mangroves, authorization for offshore energy development projects, and oil and

minerals mining leases. With clearly defined habitat designations, federal agencies and privateproject proponents have clear foresight into when actions will trigger ESA consultation

requirements to ensure that designated Critical Habitat is not adversely modified.

Interplay between ESA and CZMA Statutory Frameworks

Authorizations of state ocean management plans by NOAA are not federal actions

triggering the requirements of NEPA or ESA. In fact, because ocean plans do not contain anyon the water activities ocean plan approval does not trigger consultation under the ESA or

2150 C.F.R. 424.12(b)(1)(5) (2010).

2250 C.F.R. 424.12(c) (2010).

2350 C.F.R. 424.14 (2010).

2450 C.F.R. 424.14 (c)(2)(i) (2010).

2516 U.S.C. 1536(a)(2) (2006).

2650 C.F.R. 402.02 (2010).


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development of NEPA planning documents.27

Consultations under ESA and NEPA do not occuruntil there is a specific project under review.

28Thereby, these additional statutes are triggered

for all federal agency activities, all federal licensing or permit activities, Outer Continental Shelfplans developed by the Bureau of Ocean Energy Management, Regulation, and Enforcement,

and for programs involving federal assistance to state and local governments.29

Therefore, ocean

management plans adopted by states to implement marine spatial planning may prove integral tocompliance with NEPA and ESA. Furthermore, if states keep an eye towards compliance withthese statutory schemes while developing an ocean management plan utilizing marine spatial

planning, legal challenges may be limited in the future.

This paper will analyze whether it is more efficient to wait until a federal action triggers

the ESA requirement as a result from developmental allowances under a states marine spatialplanning determinations or whether a more efficient means of ESA compliance would be to

conduct ESA consultation at the time NOAA decides to incorporate a states use of marinespatial planning into its state ocean plan. As this paper will show, Massachusetts declined to

conduct any ESA consultation when developing its marine spatial plans for incorporation intothe Massachusetts Ocean Plan, despite the presence of designated Critical Habitat for one of the

worlds most endangered whale species. This oversight may have devastating consequences fordevelopment of coastal energy sources and for allowing increased shipping traffic into this

species required habitat.

III. EXAMPLE OF EXTENSIVE USE OF MARINE SPATIAL PLANNING MASSACHUSETTSOCEAN PLAN AND THE CRITICAL HABITAT DESIGNATION FOR THE NORTHERN

RIGHT WHALE

The Right Whale and its Present Critical Habitat Designation

The Northern Right Whale (Eubalaena glacialis) is a large baleen whale, measuring

between 45 and 55 feet in length, with generally black coloration and with two rows of longbaleen plates hanging from the upper jaw.30

Historically, Right Whales have occurred in all ofthe worlds oceans, from temperate to subpolar latitudes.

31The whales are more commonly

found within coastal or shelf waters, following the movement of prey distribution.32

The Northern Right Whale (Eubalaena glacialis) is one of the planets most rare largewhales and was thereby listed as endangered under the ESA in 1970.

33The population is

currently believed to contain only about 300 individuals.34

There has been no apparent sign ofrecovery in the last 15 years and the species may be rarer and more endangered than previously

thought.35

The eastern North Atlantic Right Whale population probably numbers only in the low

27Natl Marine Fisheries Serv. & Natl Oceanic & Atmospheric Adm. Northeast Regional Office, Marine Spatial

Planning Working Session, 12 (2009), available at:http://www.msp.noaa.gov/_pdf/NROC_MSP_Proceedings_Oct2009.pdf28

Id.29

16 U.S.C. 1456(c)(d) (2006).30

Natl Marine Fisheries Serv., Recovery Plan for the North Atlantic Right Whale, at IB (2005).31

Id at IC-1.32

Id.33

Id. at 1A-1. See also, 35 Fed. Reg. 8495 (June 2, 1970).34

Id.35

Id.


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tens of individuals at best, and very well may be functionally extinct.36

Moreover, the possibilityof biological extinction of the entire species within the next century is very real.

37The most

common threats to the species includes: ship collisions and fishing gear entanglements, habitatdegradation, noise, contaminants, underwater bombing activities, climate and ecosystem change,

and commercial exploitation.38

In its 5-year recovery plan for the species, NMFS states that numerous proactive stepsare needed by a variety of public and private entities in order to prevent the very near biological

extinction of the North Atlantic Right Whale.39

Furthermore, all Federal agencies are required toconsult with NMFS for actions authorized, funded, or carried out by such agencies that may have

an impact on the North Atlantic Right Whale designated Critical Habitat, including any impactsthat may affect prey availability and the quality of nursery areas.

40

In 1994, NMFS designated the Cape Cod Bay and Great South Channel as Critical

Habitat for the Right Whale due to the species high use of this area throughout the year.41

RightWhales have been sighted in the waters off Massachusetts in most months.

42This area is of

particular concern due to the high presence of the species in the area and the high level of shiptraffic, particularity because the leading cause of Right Whale mortality results from collisions

with ships.43

Nearly ten years ago, NMFS received a petition to increase the Right WhaleCritical Habitat designation; however, the agency found that revision was not warranted.

44

The Massachusetts Ocean Plan

One of the nations first attempts at incorporating coastal marine spatial planning is found

in the state of Massachusetts. The Massachusetts Ocean Act of 2008 explicitly grants theauthority for use of marine spatial planning, stating: The ocean waters and ocean-based

development of the commonwealth, within the ocean management planning area described inthis section, shall be under the oversight, coordination and planning authority of the secretary of

energy and environmental affairs . . . [to] develop an integrated ocean management plan, whichmay include maps, illustrations and other media.

45In developing its Ocean Management Plan,

Massachusetts noted a multitude of competing coastal uses such as recreation and tourism,fishing and shellfishing, shipping and trade, and scientific research, offshore liquefied natural gas

facilities, fiber optic and electrical cables, and natural gas pipelines.46

36Id.

37Id.

38

Id. at IG-1.39Id. at IA-1.

40Id. at ID.

41Id. at ID. See also, 59 Fed. Reg. 28793 (June 1994).

42Id. at IC-2.

43Id. at IG-1.

44Id at ID.

45Mass. Gen. Laws ch. 21A, 4(C) (2008).

46Commonwealth of Massachusetts,Massachusetts Ocean Management Plan Vol. 1 Management and

Administration, at 1-1 (2009).


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The Ocean Management Plan establishes three categories of management areas: (1)prohibited areas; (2) renewable energy areas designated for wind and wave energy development;

and (3) a multi-use area that includes activities such as aquaculture, laying of cables andpipelines, extraction of sand and gravel for beach nourishment, large-scale wind energy

development projects, large-scale wave and tidal energy facilities.47

As shown in Figure2 attached, the prohibited area does not include the Right WhaleCritical Habitat designation, rather the Right Whales critical habitat is included as a multi-use

area. Massachusetts stresses the non-federal nature of the Oceans Plan and conducts noconsultation with NMFS when developing its ocean plan and marine spatial planning modeling.

In fact, the Right Whale is only briefly mentioned in the Ocean Plan. This is despite of thepresence of designated Right Whale Critical Habitat within the states jurisdictional waters.

On September 23, 2011, NOAA's Office of Coastal and Ocean Management approved

the formal adoption of theMassachusetts Ocean Management Plan and theMassachusetts Officeof Coastal Zone Management Policy Guide - October 2011.

48For the purposes of federal

consistency review, the new Policy Guide includes the enforceable policies of the Ocean Plan,updates to underlying legal authorities, and reinstating certain Federal Energy Regulatory

Commission authorizations on the list of federal license or permit activities reviewed withoutprior approval.

49This plan acknowledges that future all future federal developments as a result

of newly adopted management areas off the coast of Massachusetts may present the need for

review under the Endangered Species Act.50

IV. EXAMPLE OF USE OF CRITICAL HABITAT EXPANSION AS A MEANS OF PROTECTION PROPOSAL FOR EXPANSION OF LEATHERBACK SEA TURTLE CRITICAL HABITAT

DESIGNATION IN THE NORTHEAST ECOLOGICAL CORRIDOR IN PUERTO RICO

T he L eatherback Sea T urt le and its Present C rit ical H abitat D esignation

The Leatherback Sea Turtle (Dermochelys coriacea) is the largest living turtle in the

world, measuring approximately 155 centimeters long.51

Nesting grounds and marine habitat forthe Leatherback Sea Turtle is located around the globe.

52Puerto Rico and the U.S. Virgin

Islands support most significant Leatherback Sea Turtle nesting colonies within the UnitedStates.

53Nesting female turtles prefer mostly continental shorelines with high-energy beaches

and deep, unobstructed access.54

Nesting in such locations means that eggs are particularlyvulnerable to beach erosion.

55Most Leatherback females return to the same beach for nesting

47Commonwealth of Massachusetts,Massachusetts Ocean Management Plan Vol. 1 Management and

Administration, at 2-12-3 (2009).48

http://www.mass.gov/czm/49Id.

50Massachusetts Office of Coastal Zone Management, Policy Guide, at Appendix 4 (2011), available at:

http://www.mass.gov/czm/plan/docs/czm_policy_guide_october2011.pdf.51

Natl Marine Fisheries Serv. & U.S. Fish & Wildlife Serv., Recovery Plan for Leatherback Sea Turtle in the U.S.Caribbean, Atlantic, and Gulf of Mexico, at 1 (1992).52

Id.53

Id. at 3.54

Id. at 6.55

Id. at 7.


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each season.56

Eggs incubate in sandy nests for approximately 60 days before hatching.57

Thetemperature of nest incubation strongly influences the sex ratio of hatchlings.

58Juvenile turtles

are extremely small at hatching, quickly moving into the waters to avoid predation. Not much isknown about juvenile distribution in the waters after hatching.

59

The Leatherback Sea Turtle has been listed as endangered under the federalEndangered Species Act since 1970.60 Currently, the only designated Critical Habitat for the

Leatherback Sea Turtle is located both in the coastal waters61

adjacent to Sandy Point, St. Croix,U.S. Virgin Islands and the sandy beach itself.

62Since this Critical Habitat designation,

Leatherback Sea Turtle nesting on this beach has grown an estimated 13% per year between theyears 1994 to 2001.63

Leatherback Sea Turtle populations face threats from competing coastal and marine uses

within the turtles prime nesting beaches and within the ocean environment. In particular,Leatherback nesting beaches are adversely affected by development and tourism, construction of

buildings and pilings, beach armoring and renourishment, sand extraction, and presence ofartificial lights adjacent to nesting beaches.

64These activities cause increased hatchling

mortality, increased erosion of sandy beaches, decreases of available nesting habitat, and directloss of breeding habitat.

65FWS fears these threats will increase in severity and location within

the next 25 years due to population growth and migration of humans towards coastal regions.66

Additional threats to the turtle include egg collection, boat strikes, ingestion of plastics, and

incidental catch mortality resulting from indiscriminate fishing methods.67

Proposed Expansion of Critical Habitat Designation to Include the

Northeast Ecological Corridor in Puerto Rico

In Puerto Rico, the primary nesting areas for the Leatherback Sea Turtle are located along

the islands northeast corner in the Municipality of Fajardo, in an area known as the Northeast

Ecological Corridor.

68

Nesting has increased in this area from a minimum of nine recorded nestsin 1978 to a minimum of approximately 500 nests recorded per year between the years 2000 and2005 (see Figure 5).

69This level of observed nesting activity is approximately the same in

56Id. at 8

57Id. at 8.

58Id. at 8.

59Id. at 27.

60Id. at 6. See also, 35 Fed. Reg. 8491 (June 2, 1970). Also note that FWS and NMFS share joint jurisdiction over

sea turtle ESA listings and Critical Habitat designations. In accordance with a memorandum of understanding

between the two agencies, FWS maintains jurisdiction over sea turtles nesting above the mean high tide line while

NMFS maintains jurisdiction over sea turtles while shoreward of the mean high tide line and in the open waters.61

Id. at 6, See also, 44 Fed. Reg. 17710 (March 23, 1979), designation of Critical Habitat in open waters by NMFS.62Id. at 6. See also, 43 Fed. Reg. 12050 (March 23, 1978), designation of Critical Habitat on sandy beaches by

FWS.63

Natl Marine Fisheries Serv. & U.S. Fish & Wildlife Serv., Leatherback Sea Turtle 5-Year Review, at 4 (2007).64

Id. at 32.65

Id.66

Id. at 33.67

Id. at 3438.68

Natl Marine Fisheries Serv. & U.S. Fish & Wildlife Serv., Leatherback Sea Turtle 5-Year Review, at 15 (2007).69

Id.


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numbers as that found at the turtles designated Critical Habitat location in St. Croix (see Figure4).

70The Northeast Ecological Corridor contains approximately 5.43 miles of sandy beaches

supporting prime Leatherback Sea Turtle nesting habitat.71

On February 22, 2010, the Sierra Club petitioned both FWS and NMFS for revision of

Critical Habitat designation for the Leatherback Sea Turtle to include the Northeast EcologicalCorridor of Puerto Rico due to the recorded nesting activity in the area and because the area is

particularly vulnerable to developmental pressure.72

On August 4, 2011, FWS issued its 12-month finding for this petition, finding that the petition presented substantial scientific

information warranting a Critical Habitat revision and that it would proceed accordingly withdesignation.73 The area identified for designation of listing includes: The coastline of the

Northeast Ecological Corridor of Puerto Rico, running from Luquillo, Puerto Rico, to Fajardo,Puerto Rico, including the beaches known as San Miguel, Paulinas, and Convento, and extending

at least .025 mile (132 feet) inland from the mean high tide line.74

In addition to outlining the substantial nesting activity occurring at this beach location,the Sierra Clubs petition for revision of Critical Habitat discusses the vast developmental

pressures pushing onto this pristine undeveloped beach region. In 2007, the former governor ofPuerto Rico, Anibal Acevedo Vila, declared the 3,200 acre Northeast Ecological Corridor region

a nature reserve by executive order.75

This executive order was in response to calls for long-termprotection of the coastal region, which is also home to native forests, vast wetlands and lagoons,

untouched beaches, coral reefs, and bioluminescent lagoons supporting over 50 rare, threatened,endangered and endemic species.

76However, with a change in governorship, the newly elected

governor, Luis Fortuo, rescinded this executive order and reopened large areas of private landcontained in the initial nature reserve designation to development.

77Presently, two large resorts

the San Miguel Four Seasons and the Dos Mares J.W. Marriott are planned for developmentwithin the pristine wetlands and forests of the area, pushing directly against the most important

Leatherback Sea Turtle breeding habitat on the entire island (see Figures 5 and 6).78

Despite FWSs determination that Critical Habitat expansion for the Leatherback SeaTurtle is warranted for the Northeast Ecological Corridor and that it will proceed with

designation accordingly, due to fiscal constraints on the agency, the Critical Habitat expansionwill likely be delayed substantially. FWS has determined that it must first conduct a status

review for the Leatherback Sea Turtle, scheduled for some time in 2012, before it can proceedwith the rulemaking process for revision of Critical Habitat.

79In the meantime, the 12-month

70Id.

7190-Day Finding and 12-Month Determination on a Petition to Revise Critical Habitat for the Leatherback Sea

Turtle, 76 Fed. Reg. 47133, 47137 (notice Aug. 4, 2011) (to be codified at 50 C.F.R. pt. 17).72

Id. at 47133.73Id.

74Id. at 47135.

75Sierra Club Petition for Corridor Critical Habitat Designation, at 31. See also, Executive Order 2007-37, available

at: http://app.estado.gobierno.pr/Ordenes_Ejecutivas/2007/OE-2007-37.pdf.76

Id. at 7.77

Id. at 31. See also, Executive Order 2009-42, available at:

http://app.estado.gobierno.pr/Ordenes_Ejecutivas/2009/OE-2009-42.pdf78

Id.79

Id. at 47139.


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determination that a revision of Critical Habitat is warranted holds no legal power under theESA. Therefore, the developmental pressures that concerned the Sierra Club and prompted it to

pursue Critical Habitat designation for this region may continue unabated by federal ESAprotections for the species.

While a Critical Habitat designation for the Northeast Ecological Corridor would not stopthese development projects as such, these development projects would likely require a CZMAconsistency permit as well as a 404 wetlands dredge and fill permit from the Army Corps of

Engineers, thereby triggering the requirement that any federal approval of construction withinthis region would not directly or indirectly adversely modify the pristine beach nesting habitat.

This would prove to be a strong burden for private developers, given the sensitive nature of thishighly interconnected coastal ecosystem.

V. ANALYSIS OF SUCCESSES AND CHALLENGES OF BOTH APPROACHES TOWARDSMARINE SPECIES PROTECTION AND ECOSYSTEM BASED MANAGEMENT

Ability of Marine Spatial Planning to complement

Endangered Species Act Critical Habitat Designations

While use of marine spatial planning as a best scientific data available tool for furtherunderstanding ocean ecosystems in order to produce more significant and increased Critical

Habitat designations seems like a worthy use of this tool, in practice it seems that the regulatoryscheme is reluctant to produce this result. In fact, with respect to the ESA, the National Ocean

Council suggests the inversethat the use of Critical Habitat designations should be used toinform marine spatial planning. The National Ocean Council states that the scientific and

technical information included in past ESA Section 7 consultations and recovery plans should beused to inform coastal marine spatial planning, to the extent allowing for the use of formal

programmatic consultations under Section 7.80

Calling for the use of programmatic ESA Section 7 consultations as a means of avoidingmore exacting studies in the face of increased coastal and offshore development projects would

have devastating impacts to insuring sensitive species habitat is not adversely affected by theseprojects. Upon codification of marine spatial planning into federal law, Congress has the

opportunity to apply ESA consultation requirements to approval of ocean management planincorporations by NOAA. Though it is unlikely that they will do, this action could prove

beneficial to the increased information and best science that marine spatial planning should beutilizing when devising spatial plans for multiple coastal uses.

Potential to Increase Critical Habitat designations in Coastal Waters

NMFS has never designated Critical Habitat within lastly open ocean areas.81 In fact,compared to FWSs list of almost 2,000 threatened and endangered species, NMFS has only

80Natl Ocean Council,Legal Authorities Relating to the Implementation of Coastal and Marine Spatial Planning,

at 11 (2011).81

Emily Brand, Considering Open Ocean Critical Habitat Under the Endangered Species Act: Does Critical

Habitat Actually Help Protect the Pacific Leatherback Sea Turtle?, 1 Sea Grant Law & Policy Journal 40, 61

(2008).


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listed 19 species as endangered and 12 as threatened.82

NMFS generally does not designateCritical Habitat under the ESA; however, recent trends over the past ten years show that NMFS

has become increasingly willing and able to designate Critical Habitat for marine species. AllCritical Habitat designations by NMFS have proven to be in localities with substantial

connections to the coastal regionsfor the Northern Right Whale in Massachusetts, for Staghorn

and Elkhorn coral colonies surrounding Puerto Rico, for the Southern Resident Killer Whale inWashington States inland sound waters, and for the Leatherback Sea Turtle immediately off thecoast of St. Croix.

83In each of these situations, the designated Critical Habitat was easily

identified and heavily utilized by the species. Furthermore, the close ecological connectionbetween the coastal region and the open waters in these situations presented NMFS with a more

readily attained determination that designation of Critical Habitat was essential for protection ofthese species. These trends suggest that use of Critical Habitat designations as a tool for coastal

regional planning may be more useful in the coming years.

Moreover, with the increasing call towards EBM for coastal regions, FWS and NMFS

can potentially play an important role in joint management of endangered species and CriticalHabitat issues. Through promulgation of joint policy initiatives and Memorandums of

Understanding, these two agencies could play a large role in developing expanded CriticalHabitat designations with an aim towards full-ecosystem management.

VI. CONCLUSIONThe convergence of a multitude of human pressures on the worlds coastal ecosystems

requires important attention to the use of management tools and how local and national

government intend to use these management tools for either the preservation or exploitation thecoastal regions. The potential to utilize Critical Habitat designations under the ESA congruently

with coastal marine spatial planning presents an unprecedented opportunity for seriousadvancements in the use of marine planning to further conservation goals. However, as of now,

in practice marine spatial planning is not required to address heightened federal ESA protections.This could present serious problems and conflicts between offshore and onshore development

projects and species conservation.

82U.S. Commission on Ocean Policy,An Ocean Blueprint for the 21

stCentury, at 309 (2004).83

Id.


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Coastal Marine Spatial Planning and the

Endangered Species Act Two Case Studies

Figures and Pictures

Figure 1: Critical Habitat Designation

for Northern Right Whale

Source: NOAA

Figure 2: Management areas under MA

Ocean Plan. Blue stripped areas aredesignated as multiple use.

Source: MA Ocean Plan Map 2-1


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Figure 4: Designated Critical Habitat forLeatherback Sea Turtle

Source: NOAA

Figure 3: Increased Leatherback Sea TurtleNesting in the Northeast Ecological CorridorSource: Sierra Club Petition for Critical

Habitat Designation


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Figures 5 and 6: Threatened development projects located in the NortheastEcological Corridor

Source: Sierra Club Petition to expand Critical Habitat Designation


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Figure 7: Proposal for the Nature Reserve for the

Northeast Ecological Corridor

Source: Sierra Club


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Regulating the Marine Environment

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