November 3, 2022

Leo Miranda-Castro
Regional Director, Southeast Region
Fish and Wildlife Service
Southeast Region
1875 Century Boulevard
Atlanta, GA 30345
Leopoldo_Miranda@fws.gov

Re: Cruise Ships Threaten Wildlife and Habitat in Culebra, Puerto Rico

On behalf of the Center for Biological Diversity and CORALations, it has come to our attention
that there are commercial cruises listing Culebra, and the National Refuge Cay Culebrita, Puerto
Rico, on their itineraries. We have significant concerns that the Fish and Wildlife Service has
failed to adequately protect threatened corals, endangered sea turtles and marine mammals from
potential harm from ships. The Service must use its full authority to protect the Culebra National
Wildlife Refuge, protected species, and their habitat. The Service is urged to hold a public
comment period and to ensure that any permits fully comply with the law.

Risks from Cruise Ship Activities at Culebra

Corals are threatened from anchoring. Anchoring results in significant decreases in coral cover. 1
A study in the US Virgin Islands found that coral colonies were 40% smaller and 60% less dense
at sites with frequent anchoring. 2 Species richness and complexity was also harmed. Culebra has
numerous threatened coral species listed under the Endangered Species Act. Among the threats
to corals are vessel impacts such as breakage and damage from anchoring and vessel pollution. 3
The waters around Culebra and Culebrita are also designated critical habitat for staghorn and
elkhorn corals, 4 and proposed critical habitat for other listed corals. 5 The waters around Culebra
and Culebrita are also designated critical habitat for green sea turtles (Chelonia mydas),
protecting sea grasses, with the agency further listing specific seagrass areas as Resource Cat 1,
non-mitigatable, and considered irreparable if destroyed. 6

1
Flynn RL, Forrester GE. 2019. Boat anchoring contributes substantially to coral reef degradation in the British
Virgin Islands. PeerJ 7:e7010 https://doi.org/10.7717/peerj.7010
2
Id.
3
https://www.federalregister.gov/d/2014-20814
4
https://www.federalregister.gov/d/E8-27748
5
https://www.federalregister.gov/d/2020-21229
6
FWS, Resource Category 1 Designation: The Seagrass Beds of Culebra Island, Puerto Rico (Sept. 1992).
North shore beaches of Culebra and Culebrita and the nearby south facing beach of the adjacent
cay of Cayo Norte, are listed critical habitat for Hawksbill seaturtles (Eretmochelys imbricata),
with decades of subsequent data collected regarding their importance to nesting giant leatherback
sea turtles (Dermochelys coriacea). 7 Nassau grouper also has proposed critical habitat around
Culebra. 8

Whales are well-known victims of the ship strikes and noise pollution caused by increases in
maritime shipping. Ship strikes serve as a primary cause of mortality for large whales
worldwide. 9 For imperiled populations, death from vessel collisions may be a significant
impediment to population growth and recovery. 10 Vessels also contribute to ocean noise, which
can mask essential sounds produced and heard by marine animals and fish. 11 Acoustic pollution
is of special concern for cetaceans (whales, dolphins, and porpoises), a very vocal taxonomic
group that depends on sound not only as their principal sense, but in critical areas of their social
and sensory biology. 12 Vessel strikes are also the primary threat to the vulnerable West Indian
manatee. 13 Collisions with watercraft are currently considered one of the leading causes of West
Indian manatee mortality. 14 One study assessing manatee mortality in Puerto Rico found that,
over a five year period, nearly one-half (45.8%) of all recorded manatee deaths were attributable
to human interaction, with watercraft collisions representing half of these instances. 15

National Wildlife Refuge site lists migratory sea birds that nest near Culebrita. Birds, including
the roseate tern, may be considered among the species most susceptible to health complications
caused by air pollutants, including pollution from vessels. The avian respiratory system,
characterized by unidirectional airflow and cross-current gas exchange, improves the efficiency
of respiration to levels beyond any other terrestrial vertebrate. 16 Therefore, birds are more likely
to be susceptible to high concentrations of reactive gases and aerosols in the air than other
species. 17 Birds are also susceptible to light pollution, and there are numerous birds on Culebra
and Culebrita. 18 Artificial light is also known to disorient birds; anthropogenic light acts as a

7
50 CFR 17.95; Carr, T., and N. Carr, Dermochelys coreacea (leatherback sea turtle) copulation. Herpetological
Review 17:24-25 (1986).
8
https://www.federalregister.gov/d/2022-22195
9
Rockwood, R. Cotton et al. 2017. High Mortality of Blue, Humpback and Fin Whales from Modeling of Vessel
Collisions on the U.S. West Coast Suggests Population Impacts and Insufficient Protection, PLoS ONE 12(8):
e0183052.
10
Id.
11
Heenehan et al., 2019, supra note 81.
12
L.S. Weilgart. The impacts of anthropogenic ocean noise on cetaceans and implications for management.
Canadian Journal of Zoology. 85(11): 1091-1116. https://doi.org/10.1139/Z07-101. Quoting Tyack and Miller,
2002.
13
Cloyed CS, Hieb EE, Collins MK, DaCosta KP and Carmichael RH. 2019. Linking Use of Ship Channels by West
Indian Manatees (Trichechus manatus) to Seasonal Migration and Habitat Use. Front. Mar. Sci. 6:318.
https://www.frontiersin.org/articles/10.3389/fmars.2019.00318/full#B6.
14
Id.
15
Mignucci-Giannoni, Antonio A., et al. 2000. "Manatee mortality in Puerto Rico." Environmental Management
25.2: 189-198. DOI: 10.1007/s002679910015.
16
Olivia V Sanderfoot and Tracey Holloway. 2017. Air pollution impacts on avian species via inhalation exposure
and associated outcomes. Environ. Res. Lett. 12 083022. IOP Publishing Ltd. https://doi.org/10.1088/1748-
9326/aa8051.
17
Id., quoting Brown et al., 1997.
18
Wetmore, M. Birds of Culebra Island, Puerto Rico (1917).
strong false orientation cue that can trap or mislead birds. 19 Nocturnal migrants are the most
vulnerable to this issue, since light obstructs orientation. 20 Visual pigments of migratory birds
are bleached by artificial light, causing them to lose sight of the horizon. 21 This can result in
exhaustion or collision with the light source. 22 Artificial light can also cause the deviation of
birds away from the correct migration routes towards harmful city landscapes at night, as
evinced by the large numbers of bird deaths due to collisions with illuminated structures every
year. 23 Among the additional species of concern include white cheeked pintail (Anas
bahamensis), ruddy duck (Oxyura jamaicensis), Caribbean coot (Fulica caribaea), least grebe
(Tachybaptus dominicus), white-crowned pigeon (Patagioenas leucocephala), and slippery-
backed mabuya (Mabuya mabouya).

There are also concerns that the habitats for resident and migratory birds will be adversely
affected, including boulder forest habitat, mangroves, and wetlands. Important nesting sites for
seabirds include sensitive small patches of deciduous, semievergreen forest consisting of Bursera
simaruba, Pisonia subcordata, Bourreria succulent, and Exostema caribaeum.

Waters where cruise ships pass, anchor, and disembark passengers are in waters that bear
“warnings” on NOAA nautical navigation charts as they are littered with hazardous unexploded
ordnance (UXO.) While the charts don’t place some of the warnings near Culebrita the areas
adjacent to the Cay are heavily littered with UXO. The adjacent cay of Cayo Botella and Playa
Tortuga on Culebrita have been focus areas for repeat UXO clean-up activities. Unfortunately,
due to the dynamic nature of shifting sands these cleanup activities can never affirm that an area
is “clean.” No active clean-up is authorized for underwater benthic areas due to protected
resources and where DRNA permitted Sea Dream Cruise ships to anchor.

First, the Service must ensure that the activities are compatible with Refuge purposes. There are
significant concerns that disembarking, traffic, pollution, anchoring, and habitat degradation
from the proposed activities are incompatible with Refuge purposes.

The National Wildlife Refuge System Administration Act of 1996, as amended by the National
Wildlife Refuge System Improvement Act of 1997, (Refuge Improvement Act) governs the
management of the U.S. National Wildlife Refuge System (Refuge System). 24 The Refuge
Improvement Act identifies the purpose of the Refuge System as “to administer a national
network of lands and waters for the conservation, management, and where appropriate,
restoration of the fish, wildlife, and plant resources and their habitats . . . for the benefit of
present and future generations of Americans.” 25 Accordingly, FWS must, among other things,
“provide for the conservation of fish, wildlife, and plants, and their habitats within the System”
and “ensure that the biological integrity, diversity, and environmental health of the System are

19
Id., quoting Verheijen, 1985.
20
Id., quoting Gauthreaux and Belser, 2006; Watson et al., 2016; Mahr et al., 2012.
21
Id.
22
Id., quoting Florida Fish and Wildlife Conservation Commission.
23
Id.
24
See generally 16 U.S.C. § 668dd.
25
Id. § 668dd(a)(2).
maintained.” 26 The Act defines both “conservation” and “management” to mean “to sustain and,
where appropriate, restore and enhance, healthy populations of fish, wildlife, and plants.” 27
To meet the goals of the Refuge System and individual refuges, the Refuge Improvement Act
requires FWS to issue a comprehensive conservation plans for each refuge and update it at least
every 15 years. 28 After FWS completes a comprehensive conservation plan, it “shall manage the
refuge . . . in a manner consistent with the plan and shall revise the plan at any time if . . .
conditions that affect the refuge . . . have changed significantly.” 29

Each refuge must be managed “to fulfill the mission of the System” and to fulfill “the specific
purposes for which that refuge was established.” 30 If an apparent conflict exists between the
purposes of an individual refuge and the mission of the System, “the conflict shall be resolved in
a manner that first protects the purposes of the refuge, and, to the extent practicable, that also
achieves the mission of the system.” 31

While wildlife-dependent recreation 32 like fishing or wildlife photography is a “legitimate and

appropriate general public use” of the Refuge System, such recreation must be “compatible” with
the mission of the Refuge System and the individual refuge. 33 “Compatibility” of refuge uses
plainly entails compatibility with conservation of wildlife and healthy habitat. 34 A use is
“compatible” if, “based on sound professional judgment, [it] will not materially interfere with or
detract from the fulfillment of the Refuge System mission or the purposes of the national wildlife
refuge.” 35 Even appropriate, wildlife-dependent uses may be precluded from a refuge where they
significantly impact FWS’s management of its resources. 36

26
Id. § 668dd(a)(4)(A)–(B).
27
Id. § 668ee(4).
28
Id. § 668dd(e)(A).
29
Id. § 668dd(e)(E).
30
Id. § 668dd(a)(3)(A).
31
Id. § 668dd(a)(4)(D).
32
Wildlife dependent recreation means “a use of a refuge involving hunting, fishing, wildlife observation and
photography, or environmental education and interpretation” Id. § 668ee(2).
33
Id. § 668dd(a)(3)(B); see also id. § 668dd(d)(1)(A) (authorizing the Secretary to permit hunting, fishing, and
public recreation in the Refuge System on the condition that “he determines that such uses are compatible with
the major purposes for which such areas were established”).
34
See generally id. § 668dd(a)(2); (a)(4)(A)–(C), (F). For example, agency regulations specifically state that
permitting hunting in a refuge is subject to a determination by the Secretary that hunting “will be compatible
with the principles of sound wildlife management.” 50 C.F.R. § 32.1; see also 603 FW 1.3A (agency policy
explaining that while hunting is considered an “appropriate” use in the Refuge System, the refuge manager must
still determine whether it is compatible).
35
603 FW 2.6B.
36
Agency policy provides the following example: “The removal of a number of individual animals from a refuge
through regulated hunting, trapping, or fishing would, in many instances, help the refuge manager manage to
improve the health of wildlife populations. However, the take of even one individual of a threatened or
endangered species could significantly impact the refuge’s ability to manage for and perpetuate that species.
Likewise, wildlife disturbance that is very limited in scope or duration may not result in interference with
fulfilling the System mission or refuge purposes. However, even unintentional minor harassment or disturbance
during critical biological times, in critical locations, or repeated over time may exceed the compatibility
threshold.” 603 FW 2.11B(2).
However, all proposed Refuge uses must be affirmatively found compatible by the Service
before they are permitted to occur. 37 Here, we urge the Service to fully explore the potential
harm to fish and wildlife and their habitat from the proposed action and ensure that it is fully
mitigated. Culebra’s original purpose is as “a refuge and breeding ground for native birds,” as
well as management of migratory birds. 38 Moreover, National Wildlife Refuges are for the
“conservation, management, and . . . restoration of the fish, wildlife, and plant resources and
their habitats.” 39

Culebra National Wildlife Refuge’s management plan aims to control access and use of
Culebrita beaches to ensure conservation purposes 40. Moreover, there is insufficient staff and
administration to ensure the compatible uses of the island. According to the plan, “Access to
portions of these islands and other refuge sites is limited because of potential wildlife conflicts,
unsafe terrain, and unexploded ordnance hazards.” 41The Service has never ensured
infrastructure, staff, planning, and management to have such uses compatible. For example, the
management plan notes specific requirements that are needed:

Access trails at the mangroves and boulder forests will require elevated boardwalks. Sites for
observation towers/blinds will be identified during the design phase of this project. Interpretive
information will be provided on all trails with an information kiosk provided at the high-
visitation area on Culebrita. Additionally, unexploded ordinance poses an additional risk to
visitors and makes the use of the area dangerous and incompatible.

Second, the Service must comply with the National Environmental Policy Act. The Service’s
issuance of a permit requires NEPA compliance. To the extent that the Service attempts to rely
on the Environmental Assessment and Finding of No Significant Impact for its Comprehensive
Conservation Plan, that reliance is flawed.

NEPA is to “ensure that Federal agencies consider the environmental impacts” in the decision-
making process.88 It requires federal agencies to take a “hard look” at the environmental
consequences of their actions before taking action.89 In this way, NEPA ensures that federal
agencies “will have available, and will carefully consider, detailed information concerning
significant environmental impacts” and that such information “will be made available to the
larger [public] audience that may play a role in both the decision making process and the
implementation of the decision.”90

To that end, NEPA requires federal agencies to prepare an EIS for all “major Federal actions
significantly affecting the quality of the human environment.”91 NEPA’s implementing
regulations define “major federal action” to include the “[a]pproval of specific projects, such as

37
16 U.S.C. § 668dd(d)(3)(A)(i).
38 CCP at 9.
39 Id.
40
CNWR Management Plan at 49.
41
Id. at 60.
 construction or management activities located in a defined geographic area” and specify that
“[p]rojects include actions approved by permit.”92

NEPA’s implementing regulations specify that in determining whether an action may have
“significant” impacts on the environment, an agency must consider the affected environment and
the degree of effects of the action and connected actions.93 The agency should consider the area
and its resources, including ESA listed species and critical habitat,94 among other things.95

Here, several significant factors are raised that should trigger the preparation of an EIS, and at
minimum an Environmental Assessment. These environmental impacts include potential harm to
corals from anchoring, water pollution from vessel discharges, and vessel disturbance and
collision of wildlife. Additionally, there are newly listed corals and proposed critical habitat
since that review. Additionally, there is significant new information about the impacts of vessels
on the environment, among other information.

Third, the Service must consult under the Endangered Species Act because the activities may
affect listed corals, manatees, sea turtles, and critical habitat. Section 7(a)(2) of the Endangered
Species Act requires federal agencies to “insure that any action authorized, funded, or carried out
by such agency . . . is not likely to jeopardize the continued existence of any endangered species
or threatened species or result in the adverse modification of habitat of such species . .
.determined . . . to be critical . . . .” 42 To accomplish this goal, agencies must consult with the
delegated agency of the Secretary of Commerce or Interior whenever their actions “may affect” a
listed species. 43

The Endangered Species Act’s consultation requirement applies to Federal agencies taking any
action. 44 “Action means all activities or programs of any kind authorized, funded, or carried out,
in whole or in part, by Federal agencies in the United States or upon the high seas” including
“the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid.” 45
The Supreme Court noted that the Act’s section 7 command to Federal agencies “admits of no
exception." 46 Moreover, the use of the word “shall” in a statute indicates Congress’ intent to
impose a mandatory duty. 47

The project may affect listed species such corals, manatees, roseate tern, leptocereus grantianus,
Culebra Island giant anole, sea turtles, Nassau grouper and their critical habitat and must engage
in consultation with the National Marine Fisheries Service and Fish and Wildlife Service.

Sincerely,
Miyoko Sakashita

42
16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
43
16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
44
16 U.S.C. § 1536(a)(2).
45
50 C.F.R. § 402.02 (emphasis added).
46
Tenn. Valley Auth., 437 U.S. v. Hill, 437 U.S. 153, 173 (1978). See also Pacific Rivers Council v. Thomas, 30 F.3d
1050, 1054-55 (9th Cir. 1994). (recognizing that Congress intended “agency action” to be interpreted broadly,
admitting of no limitations.)
47
Bennett v. Spear, 520 U.S. 154, 172 (1997) (use of “shall” creates a “categorical requirement”).