Coastal Marine Spatial Planning and the Endangered Species Act Two Case Studies

Paper by: Karen Schmidt Regulating the Marine Environment Professor Wroth Fall 2011

Abstract: This paper presents an analysis of the potential conflict between the Coastal Zone Management 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 Spatial Planning may benefit or harm critical habitat designations, thereby requiring Endangered Species Act 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.

INTRODUCTION

Nearly 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 a major management challenge of maintaining this delicate resource in the future in the face of increased 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 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 the coastal 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 and space, such as environment, tourism, fisheries, and energy generation 2 may 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 of land and resources within the coastal regions is based on the use of marine spatial planning to achieve 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 its actual 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 practical implications 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 as overfishing, pollution, and unplanned urban development.3 The 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
1

Christopher 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.

fragmentation of decision-making. 4 As such, EBM is defined as an approach that goes beyond examining 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 in important ways.5 This paper will first discuss two potential methods of coastal EBM implementation under U.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 how these 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 paper analyzes 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 MANAGEMENT

Within 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 and underlying 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. An understanding 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 a national policy explicitly endorsing the use of coastal marine spatial planning as an ecosystembased approach to managing ocean and coastal development. Specifically, the order seeks to ensure: the protection, maintenance, and restoration of the health of ocean, coastal, and Great Lakes ecosystems and resources, enhance the sustainability of ocean and coastal economies, preserve our maritime heritage, support sustainable uses and access, provide for adaptive management to enhance our understanding of and capacity to respond to climate change and ocean acidification, and coordinate with our national security and foreign policy interests.6 To achieve these goals, this Executive Order explicitly promotes the use of marine spatial plans to build on local, federal, and regional decisionmaking and ocean planning processes in order to manage the oceans for sustainable multiple uses across sectors.7 Furthermore, the
3 4

Id. Id. at 8. 5 Id. 6 Exec. Order No. 13547 (July 19, 2010). 7 Id.

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 suitable for 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 the National Ocean Council to guide and implement the orders recommendations. The National Ocean 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 cite emerging 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, greater demand for use and occupancy of ocean space, and greater need for conservation.10 Despite a movement towards use of marine spatial planning over the past few years, implementation of the executive 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 of this 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 ocean management plans. 11 However, 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 the shoreline. However, federal involvement and actions may overlap with state ocean management plans through the Coastal Zone Management Act (CZMA) consistency requirement. States may incorporate ocean management plans into its approved coastal management program under the CZMA. 12 Once 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 to note 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 will trigger these additional statutory regimes. As discussed below in the case study relating to
8 9

Id. The 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.

Massachusetts, NOAA has fully awarded the state incorporation of its ocean plan utilizing marine 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 habitat loss through degradation and human encroachment was the primary threat to endangered species populations. 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 ultimate effectiveness 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 habitat designations 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 which endangered species and threatened species depend may 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 before development 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 and mapping 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 as protected 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 or biological 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 the time it is listed that Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (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 NMFS concurrently with a listing of endangered or threatened under ESA.18 When determining the location and extent of Critical Habitat designation and expansions of designations, FWS and NMFS 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 critical habitat.19 Furthermore, 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
14 15

H.R. Rep. No. 887 at 3 (1976). 16 U.S.C. 1531(b) (2006) (emphasis added). 16 16. U.S.C. 1532(5)(A)(i) (2006). 17 16 U.S.C. 1532(5)(A)(ii) (2006). 18 16 U.S.C. 1533(a)(3)(A) (2006). 19 16 U.S.C. 1533(b)(2) (2006). 20 50 C.F.R. 424.12 (2010).

species behavior, food, water, air, light, minerals, cover, shelter, breeding sites, reproduction sites, and historical habitat ranges. 21 In delineating Critical Habitat, FWS and NMFS are required to designate specific limits using reference points and lines found on standard topographic maps of the area.22 Physical 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 of utilizing coastal marine spatial planning as the best available scientific data available to improve 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 of critical habitat for any species listed or proposed to be listed.23 Additionally, interested persons may petition for expansion of Critical Habitat designations if such areas contain physical and biological 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 participation in 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 habitat designations. 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 Habitat designation. 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 with FWS 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 species which is determined by the Secretary . . . to be critical.25 Under this heightened federal protection, agencies must insure that their actions or authorizations will not cause direct or indirect alteration that appreciably diminishes the value of critical habitat.26 Importantly for the purposes of management of the coastal region, these heightened protections are triggered whenever 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 private project 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 any on the water activities ocean plan approval does not trigger consultation under the ESA or
21 22

50 C.F.R. 424.12(b)(1)(5) (2010). 50 C.F.R. 424.12(c) (2010). 23 50 C.F.R. 424.14 (2010). 24 50 C.F.R. 424.14 (c)(2)(i) (2010). 25 16 U.S.C. 1536(a)(2) (2006). 26 50 C.F.R. 402.02 (2010).

development of NEPA planning documents.27 Consultations under ESA and NEPA do not occur until there is a specific project under review.28 Thereby, these additional statutes are triggered for all federal agency activities, all federal licensing or permit activities, Outer Continental Shelf plans 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 to compliance with NEPA and ESA. Furthermore, if states keep an eye towards compliance with these 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 spatial planning 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 marine spatial 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 into the 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 for development of coastal energy sources and for allowing increased shipping traffic into this species required habitat. III. EXAMPLE OF EXTENSIVE USE OF MARINE SPATIAL PLANNING MASSACHUSETTS OCEAN 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 long baleen plates hanging from the upper jaw. 30 Historically, Right Whales have occurred in all of the worlds oceans, from temperate to subpolar latitudes.31 The 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 large whales and was thereby listed as endangered under the ESA in 1970.33 The population is currently believed to contain only about 300 individuals. 34 There has been no apparent sign of recovery 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
27

Natl 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.pdf 28 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.

tens of individuals at best, and very well may be functionally extinct.36 Moreover, the possibility of biological extinction of the entire species within the next century is very real.37 The most common threats to the species includes: ship collisions and fishing gear entanglements, habitat degradation, 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 steps are 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 to consult 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 impacts that 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 Right Whales have been sighted in the waters off Massachusetts in most months.42 This area is of particular concern due to the high presence of the species in the area and the high level of ship traffic, 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 Whale Critical 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 the authority for use of marine spatial planning, stating: The ocean waters and ocean-based development of the commonwealth, within the ocean management planning area described in this 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, which may include maps, illustrations and other media.45 In 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

36 37

Id. Id. 38 Id. at IG-1. 39 Id. at IA-1. 40 Id. at ID. 41 Id. at ID. See also, 59 Fed. Reg. 28793 (June 1994). 42 Id. at IC-2. 43 Id. at IG-1. 44 Id at ID. 45 Mass. Gen. Laws ch. 21A, 4(C) (2008). 46 Commonwealth of Massachusetts, Massachusetts Ocean Management Plan Vol. 1 Management and Administration, at 1-1 (2009).

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 and pipelines, 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 Whale Critical 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 no consultation 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 the presence 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 the Massachusetts Ocean Management Plan and the Massachusetts Office of Coastal Zone Management Policy Guide - October 2011.48 For 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 without prior approval.49 This 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 The Leatherback Sea Turtle and its Present Critical Habitat Designation 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 for the Leatherback Sea Turtle is located around the globe.52 Puerto Rico and the U.S. Virgin Islands support most significant Leatherback Sea Turtle nesting colonies within the United States.53 Nesting female turtles prefer mostly continental shorelines with high-energy beaches and deep, unobstructed access.54 Nesting in such locations means that eggs are particularly vulnerable to beach erosion. 55 Most Leatherback females return to the same beach for nesting
47

Commonwealth of Massachusetts, Massachusetts Ocean Management Plan Vol. 1 Management and Administration, at 2-12-3 (2009). 48 http://www.mass.gov/czm/ 49 Id. 50 Massachusetts 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.

each season. 56 Eggs incubate in sandy nests for approximately 60 days before hatching. 57 The temperature of nest incubation strongly influences the sex ratio of hatchlings. 58 Juvenile turtles are extremely small at hatching, quickly moving into the waters to avoid predation. Not much is known about juvenile distribution in the waters after hatching. 59 The Leatherback Sea Turtle has been listed as endangered under the federal Endangered 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. 62 Since this Critical Habitat designation, Leatherback Sea Turtle nesting on this beach has grown an estimated 13% per year between the years 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 of artificial lights adjacent to nesting beaches.64 These activities cause increased hatchling mortality, increased erosion of sandy beaches, decreases of available nesting habitat, and direct loss of breeding habitat.65 FWS 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 nests in 1978 to a minimum of approximately 500 nests recorded per year between the years 2000 and 2005 (see Figure 5).69 This level of observed nesting activity is approximately the same in
56 57

Id. at 8 Id. at 8. 58 Id. at 8. 59 Id. at 27. 60 Id. 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. 62 Id. 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.

numbers as that found at the turtles designated Critical Habitat location in St. Croix (see Figure 4).70 The 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 Ecological Corridor 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 12month finding for this petition, finding that the petition presented substantial scientific information warranting a Critical Habitat revision and that it would proceed accordingly with designation. 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 of Puerto 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-term protection 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.76 However, with a change in governorship, the newly elected governor, Luis Fortuo, rescinded this executive order and reopened large areas of private land contained in the initial nature reserve designation to development.77 Presently, two large resorts the San Miguel Four Seasons and the Dos Mares J.W. Marriott are planned for development within 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 Sea Turtle 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 expansion will 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 proceed with the rulemaking process for revision of Critical Habitat.79 In the meantime, the 12-month
70 71

Id. 90-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. 73 Id. 74 Id. at 47135. 75 Sierra 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.pdf 78 Id. 79 Id. at 47139.

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determination that a revision of Critical Habitat is warranted holds no legal power under the ESA. 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 ESA protections for the species. While a Critical Habitat designation for the Northeast Ecological Corridor would not stop these development projects as such, these development projects would likely require a CZMA consistency 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 within this 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 this highly interconnected coastal ecosystem. V. ANALYSIS OF SUCCESSES AND CHALLENGES OF BOTH APPROACHES TOWARDS
MARINE 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 further understanding 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 regulatory scheme 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 to inform 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 be used 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 avoiding more 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 these projects. Upon codification of marine spatial planning into federal law, Congress has the opportunity to apply ESA consultation requirements to approval of ocean management plan incorporations 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 be utilizing 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
80

Natl 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 designate Critical 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. All Critical 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 in Washington States inland sound waters, and for the Leatherback Sea Turtle immediately off the coast of St. Croix.83 In each of these situations, the designated Critical Habitat was easily identified and heavily utilized by the species. Furthermore, the close ecological connection between 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 of these 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 Critical Habitat issues. Through promulgation of joint policy initiatives and Memorandums of Understanding, these two agencies could play a large role in developing expanded Critical Habitat designations with an aim towards full-ecosystem management. VI. CONCLUSION

The 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 the coastal regions. The potential to utilize Critical Habitat designations under the ESA congruently with coastal marine spatial planning presents an unprecedented opportunity for serious advancements 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.

82 83

U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century, at 309 (2004). 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 are designated as multiple use. Source: MA Ocean Plan Map 2-1

Figure 3: Increased Leatherback Sea Turtle Nesting in the Northeast Ecological Corridor Source: Sierra Club Petition for Critical Habitat Designation

Figure 4: Designated Critical Habitat for Leatherback Sea Turtle Source: NOAA

Figures 5 and 6: Threatened development projects located in the Northeast Ecological Corridor Source: Sierra Club Petition to expand Critical Habitat Designation

Figure 7: Proposal for the Nature Reserve for the Northeast Ecological Corridor Source: Sierra Club