Loggerhead Sea Turtles:

1. Loggerhead Sea Turtles: The Endangered Species Act and the USF&WS’s Critical Habitat Designation Proposal. What does it all mean for the Loggerhead Sea Turtle, Property Owners, Local Governments, and the State? Greg “rudi” Rudolph

2. ESA = Endangered Species Act Rules of the Road ESA (1973) – 18 sections. Provides for the conservation* of species that are endangered or threatened throughout all or a significant portion of their range, and the conservation of the ecosystems on which they depend. conservation* = management; preservation = status quo Endangered vs. Threatened = on the brink of extinction vs. likely to be at the brink in the near future. * Ideally all protections are afforded by ESA for endangered, not so for threatened. * But section 4(d) of ESA allows agencies to implement special regulations to reduce or expand the normal protections for threatened species, if the Secretary of the Interior deems the special regulations are necessary and advisable to conserve the species. Such special regulations cannot be developed for endangered species. * Thus there is little difference between either designation.

3. ESA Rules of the Road From the USF&WS (http://www.fws.gov/endangered/what-we-do/critical-habitats.html) “….the Service must consider whether there are areas of habitat believed to be essential to the species' conservation. Those areas may be proposed for designation as "critical habitat." The determination and designation of critical habitat is one of the most controversial and confusing aspects of the ESA.” Critical Habitat Designation (both E & T) Sec. 3 & 4 = Does not set up a preserve or refuge per se. Applies when Federal funding, permits, or projects are involved. (1) Specific areas within the geographical area occupied by the species at the time of listing, if they contain physical or biological features essential to conservation, and those features may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species if the agency determines that the area itself is essential for conservation. ***

4. Loggerhead Turtle (Caretta caretta) Management / Regulatory Governance “ON THE LAND” • Federal (USF&WS) • States • (NCWRC, Florida Fish & Wildlife Conservation Commission, SCDNR Marine Turtle Conservation Program, etc.). Shore Protection Threats Hard Structures – inhibit/prohibits nesting Nourishment(twofold) equipment & construction area inhibit/prohibits nesting equipment & construction area could result in mortality (take)

5. Loggerhead Turtle (Caretta caretta) Management / Regulatory Governance “IN THE WATER” - Federal (NMFS) Shore Protection Threats Nourishment – dredging, dredging, dredging Hopper – responsible for almost all turtle takes. Pipeline – very few if any takes. Pipeline Hopper

6. “In the Water” • turtle exclusion devices mounted on dragheads, • trawling in advance/ahead of hopper dredges and relocation outside of the borrow area, • full-time endangered species personnel on vessels, • silent inspector, and • regional biological opinions resulting in turtle moratoriums. http://www.saj.usace.army.mil/Divisions/Engineering/DOCS/CADD/appentit/01355/deflector.PDF Existing Conservation Measures

7. Early 1990s – Regulations developed requiring TEDs (turtle excluder devices) in shrimp trawls. 2001 – National Marine Fisheries Service began developing the Strategy for Sea Turtle Conservation and Recovery by compiling all it knows about sea turtle distribution, bycatch, fisheries efforts, existing regulations and other information into a geographical information system database. Based on this information, the agency prioritized gears for development of management measures. 2003 – Establishment of the N.C.Marine Fisheries Commission Sea Turtle Advisory Committee (STAC) including 10 representatives from commercial/recreational fisheries, scientific community, federal agencies, conservation community, and academia. 2010- North Carolina implemented new restrictions on the use of large-mesh gill nets in coastal waters for the protection of threatened and endangered sea turtles. “The regulations followed nearly a year of events – starting with increased federal observer coverage of the fishery in Core Sound and ending with a lawsuit settlement agreement where the issue of gill net interactions with sea turtles took center stage in state fisheries management.” IN THE WATER (FISHERIES) http://www.seaturtle.org/groups/ncwrc/coldstuns.jpg

8. “On the Land” (nesting) • turtle monitors during beachfill activities, • nest relocation programs, • sediment texture (size, color, mineralogical composition) considerations when evaluating borrow sources, • N.C. Wildlife Resources Commission (The NC Sea Turtle Project) • Very active volunteer networks – DAILY MONITORING • N.C. Aquariums • Karen Beasley Center (http://www.seaturtlehospital.org/) Existing Conservation Measures Bogue Inlet Pier, Emerald Isle, NC (March 2005)

9. Loggerhead Critical Habitat Designation (proposed - RIN 1018-AY71) 739 miles of beaches as nesting loggerhead turtle critical habitat in the States of North Carolina, South Carolina, Georgia, Florida, Alabama, and Mississippi.    All in all, these beaches account for 48 % percent of an estimated 1,531 miles of coastal beach shoreline that were evaluated, and account for approximately 84 percent of the documented nesting (numbers of nests) within these six States.   Proposed critical habitat is located in Brunswick, Carteret, New Hanover, Onslow, and Pender Counties within North Carolina, and all of Bogue Banks totaling 96 MILES. 

10. Loggerhead Critical Habitat Designation (proposed - RIN 1018-AY71)

12. Loggerhead Critical Habitat Designation (HOW DID WE GET HERE?) 1978- Originally listed as threatened. No critical habitat. 2007– USF&WS and NMFS receives a petition from the Center of Biological Diversity, Turtle Island Restoration Network, and Oceana (PETITIONERS) to list loggerheads as endangered. 2007 & 2008 – NMFS agrees additional action maybe warranted in Federal Register. 2009 – PETITIONERS send 60-day notice of intent to sue USF&WS & NMFS (the SERVICES) for failure to make 12-months findings. 2009 - PETITIONERS filed a Complaint for Declaratory and Injunctive Relief to compel the SERVICES to complete 12-month findings. 2009 - PETITIONERS and the SERVICES reach settlement in which SERVICES agree to submit to the Federal Register a 12-month finding before February 19, 2010. 2010 - the SERVCIES publish a combined 12-month findings to divide the loggerhead worldwide population into nine Distinct Population Segments (DPSs). The North Pacific populations and the Northwest Atlantic populations of the loggerhead are proposed to be listed as endangered.

13. Loggerhead Critical Habitat Designation (HOW DID WE GET HERE?) 2011– SERVICES jointly publish the final rule revising the loggerhead's listing from a single worldwide threatened species to nine DPSs listed as either endangered or threatened species. At this time, the SERVICES lacked the information necessary to identify and describe the terrestrial and marine habitats of the loggerhead and found critical habitat to be “not determinable.” However, the SERVICES stated they would later propose to designate critical habitat for the two DPSs (Northwest Atlantic Ocean and North Pacific Ocean) in which loggerheads occur within the United States' jurisdiction. 2012 & 2013– PETITIONERS file a notice of intent to sue on October 11, 2012, and a complaint for declaratory and injunctive relief on January 8, 2013, to the SERVCIES for failure to designate critical habitat. Note: As of March 1, 2013, critical habitat has been designated for 661 of the 1,499 U.S. species listed as threatened or endangered.

14. Loggerhead Critical Habitat Designation (Quotes – Fact or Fiction?) "Only occupied habitat is being proposed as we determined this is adequate for the conservation of the species," Sandy MacPherson, the national sea turtle coordinator for the U.S. Fish and Wildlife Service, told reporters Friday. "We do not envision additional landowner use restrictions that will result from this critical habitat designation," she said, adding most coastal landowners are aware of state and federal rules designed to protect sea turtles. "It's an informative process that identifies the habitats necessary for the recovery of the species," said Jennifer Koches, a spokeswoman for the Fish and Wildlife Service in Charleston. “What happens with a critical habitat designation is an additional layer of protection for the species in that designated area,” said Ken Warren, Service spokesman for the South Florida office. “When a federal agency is involved in any kind of project, permitting or funding that might adversely affect that designated habitat, we have to add a couple more steps into reviewing it.” "Anytime there is a federal project such as beach renourishment or dredging activities - things that are funded or permitted by the federal government - applicants have to consult for impacts on federal species."

15. Loggerhead Critical Habitat Designation (The Real Story) “Under the ESA and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the loggerhead sea turtle in areas occupied at the time of listing, focusing on the features' primary constituent elements (PCEs).” Primary Constituent Element 1 - Suitable nesting beach habitat that has (a) relatively unimpeded nearshore access from the ocean to the beach for nesting females and from the beach to the ocean for both post-nesting females and hatchlings and (b) is located above mean high water to avoid being inundated frequently by high tides. Primary Constituent Element 2 - Sand that (a) allows for suitable nest construction, (b) is suitable for facilitating gas diffusion conducive to embryo development, and (c) is able to develop and maintain temperatures and a moisture content conducive to embryo development. Primary Constituent Element 3 - Suitable nesting beach habitat with sufficient darkness to ensure nesting turtles are not deterred from emerging onto the beach and hatchlings and post-nesting females orient to the sea.

16. WHAT ARE FEDERAL AGENCY ACTIONS & CONSULTATIONS? (It’s section 7 of ESA) • Section 7 stipulates that Each Federal agency shall insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. • “Federal action” includes both U.S. Corps of Engineers civil works and regulatory projects. • “Federal action” includes rebuilding under FEMA. • “Federal action” includes the National Flood Insurance Program. • “Federal action” includes anything that associated with federal appropriations and grants.

17. THE TWELVE CATEGORIES (it’s everything – page 18009 of the proposed rule) “When designating critical habitat, we (USF&WS) assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features essential to the conservation of the species which may require special management considerations or protection. We have determined not only that special management considerations or protection may be required, but that they are required within critical habitat areas to address these threats to the essential features of loggerhead sea turtle terrestrial habitat.” “We have grouped the primary threats that may impact the habitat, thus necessitating special management or protection, into 12 categories:”

18. THE TWELVE CATEGORIES (it’s everything) (1) Recreational beach use (beach cleaning, human presence (e.g., dog beach, special events, piers, and recreational beach equipment)); (2) Beach driving (essential and nonessential off-road vehicles, all-terrain vehicles, and recreational access and use); (3) Predation (depredation of eggs and hatchlings by native and nonnative predators); (4) Beach sand placement activities (beach nourishment, beach restoration, inlet sand bypassing, dredge material disposal, dune construction, emergency sand placement after natural disaster, berm construction, and dune and berm planting); (5) In-water and shoreline alterations (artificial in-water and shoreline stabilization measures (e.g., in-water erosion control structures, such as groins, breakwaters, jetties), inlet relocation, inlet dredging, nearshore dredging, and dredging and deepening channels);

19. THE TWELVE CATEGORIES (it’s everything) (6) Coastal development (residential and commercial development and associated activities including beach armoring (e.g., sea walls, geotextile tubes, rock revetments, sandbags, emergency temporary armoring); and activities associated with construction, repair, and maintenance of upland structures, stormwater outfalls, and piers); (7) Artificial lighting (direct and indirect lighting, skyglow, and bonfires); (8) Beach erosion (erosion due to aperiodic, short-term weather-related erosion events, such as atmospheric fronts, northeasters, tropical storms, and hurricanes); (9) Climate change (includes sea level rise); (10) Habitat obstructions (tree stumps, fallen trees, and other debris on the beach; nearshore sand bars; and ponding along beachfront seaward of dry beach);

20. THE TWELVE CATEGORIES (it’s everything) • (11) Human-caused disasters and response to natural and human-caused disasters (oil spills, oil spill response including beach cleaning and berm construction, and debris cleanup after natural disasters); and • (12) Military testing and training activities (troop presence, pyrotechnics and nighttime lighting, vehicles and amphibious watercraft usage on the beach, helicopter drops and extractions, live fire exercises, and placement and removal of objects on the beach).

21. CONCLUSIONS This is not about turtle protection – we’re doing a fantastic job. PERIOD. This is a power grab. (Q) What additional protections do the loggerhead need? (Q) Why the critical habitat designation then? Arbitrary designations – why no Wrightsville Beach, why no Ocean Isle, why no Myrtle Beach? The more nests – the more critical habitat that was designated (????). USF&WS gave a pass to communities that had protection plans (HCPs). They COMPLETELY IGNORED everything we have in place and the NCWRC efforts. Section 4(b)(2) of ESA requires economic impact analysis – not completed yet.

22. CONCLUSIONS This proposal will add ANOTHER LAYER OF REVIEW. PERIOD. The Petitioners will get involved again if they feel that the Services are not upholding the ESA as it pertains to critical habitat, equating to MORE LAWSUITS. *See the history of this rule and the Cape Hatteras ORV issue. The USF&WS clearly state they consider Coastal Development, Recreation, Shore Protection, and Beach Driving as a THREAT and anything (including insurance, construction, etc.) will be scrutinized – new federal actions pertaining to this could be forthcoming. (Q) How will this impact local and Stateordinances pertaining to building, lighting, recreation, ORV, etc.? (A) Not sure – lawsuit by 501c3’s might force everyone’s hand….insurance could be seen as fostering development, which is a threat to the loggerhead habitat. It could go in a thousand different directions. Most of them BAD.

23. WHERE IS THE STATE? This is State “public trust beach” in every instance – private beach in some, totally State-owned in others.

24. WHERE IS THE STATE? • The USF&WS used NCWRC’s data. • Did they solicit NCWRC’s input regarding the designation? • What does the NCWRC think about the proposed rule? • N.C. Division of Coastal Management & Division of Marine Fisheries. • NCDCM works hard to gain consensus when creating coastal development rules, and now they could be fleeced. • What does NCDCM think about the proposed rule? Is it consistent with their Coastal Management Program? • NCDMF (next slide). • NCDENR & General Assembly. • Proposed rule has huge impacts to State Parks as well, legal ramifications, funding ramifications, and host of other issues. What is their response? They should be vehemently opposed to this. PUBLIC COMMENT – Due May 24, 2013. PUBLIC HEARING –ESA provides for one or more public hearings if requested within 45 days after the publication date. That’s May 8, 2013. This is State “public trust beach” in every instance – private beach in some, totally State-owned in others.

25. Loggerhead Turtles (the final frontier – the water) • National Marine Fisheries Service is next. • Plans to designate critical habitat in the water later this year! • Will this be in the sound? Will the designation be limited to State ocean waters (3 miles)? Include the entire OCS out to the EEZ (200 miles)? • (3) The fisherman (commercial and recreation perhaps) could be incredibly impacted. • (4) Where will the State (NCDMF & NCDENR) fall on this? • Could get real ugly. • Oceana March 25th press release - “Turtles in water are often caught in fishing gear struck by moving vessels, or risk ingesting debris such as plastic bags by mistake,” said Amanda Keledjian, a marine scientist at Oceana. “The National Marine Fisheries Service must follow upon this action and designate off-shore areas as well as waters directly adjacent to nesting beaches if they want these vulnerable populations to recover.”