Via Electronic Submittal

Shore Protection Manager Greg L. Rudolph Tel: (252) 393.2663 Fax: (252) 393.6639 rudi@carteretcountygov.org May 22, 2013 Via Electronic Submittal Public Comments Processing, Attn: FWS-R4-ES-2012-0103 Division of Policy and Directives Management U.S. Fish and Wildlife Service 4401 N. Fairfax Drive, MS 2042-PDM Arlington, VA 22203 Re: Comments in Response to Proposed Designation of Critical Habitat for Loggerhead Sea Turtle Docket No. FWS-R4-ES-2012-0103 Dear Sir/Madam, Carteret County appreciates the opportunity to comment on the United States Fish and Wildlife Service s (USF&WS s) proposed rule; Designation of Critical Habitat for the Northwest Atlantic Ocean Distinct Population Segment of the Loggerhead Sea Turtle (Caretta caretta) dated March 25, 2013. As a local government with beaches subjected to the proposed rule, we have a vital interest in this proposal and offer the following. 1. The proposed designation of critical habitat for the loggerhead sea turtle is not prudent for Carteret County (Bogue Banks) nor for the remaining portion of North Carolina being considered. As set forth in the proposed rule, designation of critical habitat is not prudent when one or both of the following situations exist: (i) the species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or (ii) such designation of critical habitat would not be beneficial to the species. 50 C.F.R. 424.12(a)(1). For the reasons discussed below, designation of critical habitat is not prudent. We believe the designation will actually increase the degree of threat to loggerhead sea turtles by making it much more difficult for local governments and others to conduct active coastal shore damage reduction projects, which serve to increase and enhance loggerhead sea turtle nesting area and habitat. Designation of critical habitat would impact a wide variety of coastal projects involving federal action, including, but not limited to projects (i.e., shore damage reduction projects) that enhance loggerhead sea turtle habitat and benefit their survival and recovery. If critical habitat is designated for the loggerhead sea turtle, these existing, successful programs will be burdened with additional and unnecessary measures and will become more costly and difficult to implement, which increases the threat to the loggerhead sea turtle and its

2 habitat. Furthermore, designating critical habitat may cause a backlash that would jeopardize recovery and would adversely impact the USF&WS s relationship with state agencies. While characterizing beach sand placement activities as a primary threat to loggerhead sea turtle habitat, the USF&WS also recognizes that sand placement can result in increased nesting and a nourished beach that is designed and constructed to mimic a natural beach system may benefit sea turtles more than an eroding beach it replaces. 78 Fed. Reg. 18000 (Mar. 25, 2013). If these projects are not implemented as a result of critical habitat designation, not only will our beaches continue to erode and lose habitat, more intrusive measures may be the only alternative to protect public and private infrastructure and small businesses resulting in barriers or deterrents to adult female loggerhead sea turtles attempting to access the beach. We conduct coastal shore damage reduction projects pursuant to stringent state and federal regulations, including a thorough environmental review, consultation with federal and state agencies, sediment criteria, mandated construction windows, tilling requirements, and other provisions ensuring habitat for threatened and endangered species, including the loggerhead sea turtle, are protected before, during and after the renourishment events. Regulations and measures are in place with respect to our shore protection projects to ensure renourished beaches resembles a natural beach (slope, sediment compatibility, tilling requirements, etc.). Local volunteers, in coordination with the North Carolina Wildlife Resources Commission, also conduct a sea turtle management program. Through this program sea turtle activity is monitored daily during nesting season, and volunteers assist in protecting nesting sites before and during hatching; and assist in tending to and collecting data with respect to stranded sea turtles. In addition to the programs and measures discussed above, there is also a Recovery Plan for the Northwest Atlantic Population of the Loggerhead Sea Turtle that is in place to identify and guide the species recovery needs. The recovery plan identifies and discusses the recovery actions necessary to ensure the recovery unit meets the established recovery criteria and that protections under the Endangered Species Act (ESA) are no longer necessary. These actions include measures to ensure beach sand placement projects are conducted in a manner that accommodates loggerhead sea turtle needs and does not degrade or eliminate nesting habitat. Designation of critical habitat for the loggerhead sea turtle is not necessary to implement these measures and achieve the stated goal. Because there are already adequate measures in place to ensure the survival and recovery of the loggerhead sea turtle; the proposed designation would adversely impact these successful programs resulting in loss of habitat, and increase the degree of threat to the species. Therefore the designation of critical habitat for the loggerhead sea turtle is not prudent. 2. The specific areas proposed to be designated as critical habitat for the loggerhead sea turtle do not contain features, which now or in the future, may require special management considerations or protection. In the proposed rule, the USF&WS 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. 78 Fed. Reg. at 18009. The USF&WS identified the following broad categories of primary threats that may impact critical habitat and therefore require special management or protection;

3 (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);beach sand placement activities, including beach renourishment, inlet sand bypassing, dredge material disposal, and emergency sand placement after natural disaster; (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); (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). Prior to designating critical habitat, the USF&WS is required to consider relevant management plans, conservation partnerships, and other measures that would be impacted by the designation of critical habitat. See 16 U.S.C. 1533(b)(2) (requiring Secretary of Interior to consider the economic impact, the impact on national security, and any other relevant impacts prior to designating critical habitat). The USF&WS not only failed to adequately consider existing regulations and programs that ensure that loggerhead sea turtle habitat is protected and maintained, it failed to analyze the impacts of designating critical habitat on the effectiveness of these successful programs as required by the ESA. The USF&WS failed to recognize existing regulations and measures that are in place to address the primary threats alleged by the USF&WS. For example, local ordinances are in

4 place to regulate recreational beach equipment on the beach and beach driving. The local volunteer sea turtle program described above, includes (among other things) measures to prevent predation of sea turtle nests. Further beach renourishment activities are conducted pursuant to stringent federal and state regulations and oversight that address some of the other primary threats listed by the USF&WS, including beach erosion and climate change. In addition, with the exception of a limited number of terminal groins, the North Carolina Coastal Area Management Act ( CAMA ) does not permit hardened structures along its ~325-mile long ocean shoreline, including oceanfront beaches and frontal dunes. North Carolina s coastal regulatory agencies, the North Carolina Division of Coastal Management and Division of Marine Fisheries, impose significant restrictions on coastal development, commercial fishing, and beach management activities, which ensure that strong protections are in place to protect loggerhead sea turtles and their habitat. If critical habitat is designated, these successful programs will be adversely impacted. Further, some of these primary threats identified by the USF&WS are outside its jurisdiction (i.e., inlet dredging, nearshore dredging, and dredging and deepening channels). The USF&WS has excluded other high-density nesting beaches because adequate management and protective measuring are in place. For example, the USF&WS excluded Onslow Beach, which is considered by USF&WS as a high-density nesting beach, because its Integrated Natural Resources Management Plan (INRMP) includes implementation of sea turtle nesting surveys, nest marking, and beach management to protect nesting and hatchling loggerhead sea turtles from anthropogenic sources. 78 Fed. Reg. at 18041-42. The INRMP includes the following management and protective measures; (i) conduct nightly or morning ground sea turtle nest surveys on Onslow Beach during nesting season; (ii) conduct aerial surveys for sea turtle nests on Brown s Island and North Onslow Beach; (iii) protect sea turtle nest sites with cages and restrictive signage; (iv) move sea turtle nests that are in the amphibious training beach; (v) impose driving restrictions on Onslow Beach during the sea turtle nesting season; (vi) rake ruts in front of sea turtle nests; (vii) reduce sources of artificial lighting; and (viii) monitor recreational or training impacts to Onslow Beach during sea turtle nesting season. 78 Fed. Reg. at 18042. While the ESA prohibits critical habitat designation on lands controlled by the Department of Defense that are subject to an approved INRMP, our local sea turtle management program and local ordinances contain similar features. Therefore, the USF&WS is required to evaluate the impacts of critical habitat designation on these programs and consider excluding our beaches from critical habitat designation on this basis. Not only are there existing measures in place to address these threats, the USF&WS has recognized that special management or protections are not required to address these threats to essential features of loggerhead sea turtle habitat. The USF&WS has stated that designation of critical habitat is not anticipated to affect beach renourishment projects because protection measures are already in place. The USF&WS cannot have it both ways. It cannot claim that special management or protection is required to address a very broad list of threats to features of loggerhead habitat and at the same time claim that designation of critical habitat will have little impact to these threats and the economy. Because the features of loggerhead habitat that are essential to conservation of the species do not, now or in the future, require special management or protection measures beyond those that are already in place, the USF&WS proposed designation of critical habitat is arbitrary and capricious.

5 3. Designating critical habitat for the loggerhead sea turtle will have significant economic impacts on the national, state, and local economies. Prior to designating critical habitat, the USF&WS must consider the economic impact, the impact on national security, and any other relevant impact. 16 U.S.C. 1533(b)(2). In the proposed rule, the USF&WS acknowledges it is preparing an economic analysis of the proposed designation of critical habitat and indicated it may decide to exclude additional areas from the final rule based on information received during the public comment period. 78 Fed. Reg. at 18001. Because designation of critical habitat will likely have a significant impact on the national, state, and local economies, the USF&WS should not designate critical habitat for the loggerhead sea turtle. Designation of critical habitat would impact a wide variety of coastal projects involving federal action, including, but not limited to, coastal and inlet management activities (i.e., dredging and beach renourishment) permitted, funded or implemented by the United States Army Corps of Engineers, hurricane recovery activities funded by the Federal Emergency Management Agency, implementation of the National Flood Insurance Program, and federal grants for public access and infrastructure projects. If critical habitat is designated, coastal projects and development, recreational use of the beach, and our economy would be directly and adversely impacted by a number of measures to address the perceived threats to loggerhead habitat, including recreational use of the beach, beach driving, predation, beach sand placement activities, in-water shoreline alterations, coastal development, artificial lighting, beach erosion, climate change, habitat obstructions, human-caused disasters, and military testing and training activities. Our beaches and inlets make a substantial contribution to the national, state, and local economies. Beach tourism creates significant tax revenue to the federal government, while creating jobs and unlike other industries; beach travel and tourism cannot be outsourced. The beach economy in Carteret County alone that would be impacted by critical habitat designation includes figures as a high as; (i) a domestic tourism economic impact of $278.74 million; (ii) more than 2,960 jobs that are directly attributable to travel and tourism; (iii) a $48.77 million travel/tourism payroll, and (iv) state and local tax revenues from travel amounting to $30.58 million (all 2011 data). Bogue Banks (~25-miles long) in particular is the only developed beach to accommodate this type of tourism economy within the middle 115 miles of the entire North Carolina shoreline. To the north are the undeveloped shorelines of the Cape Lookout & Cape Hatteras National Seashore (roughly 75 miles of shoreline) Hatteras Village is the next oceanfront municipality. To the south are the undeveloped beaches of Bear Island (State Park) and the military islands of Brown s Island and Onslow Beach (collectively 15 miles of shoreline) North Topsail beach is the next oceanfront municipality. Beach erosion is the number one concern that tourists have about beaches and is a threat to our local economy as well as the national economy. Restoring beaches through beach renourishment and other shore protection measures provides critical protection and benefits to public and private infrastructure, small businesses, the tourism industry, public recreation, and state and local tax bases, and also maintains and enhances habitat for loggerhead sea turtles. As mentioned earlier, these coastal storm damage reduction projects are conducted pursuant to stringent federal and state regulations that already ensure habitat for threatened and endangered species, including the loggerhead sea turtle, is protected before, during and after these events. In addition, the State s Wildlife Resources Commission already coordinates a comprehensive turtle monitoring and recovery program that is augmented with a dedicated volunteer network that is widely publicized in addition to numerous state and federal regulations and policies specifically-aimed at loggerhead sea turtle protection.

6 If critical habitat is designated for the loggerhead sea turtle, these existing, successful programs will be burdened with additional and unnecessary measures and will become more costly and difficult to implement, which will threaten our national, state and local economies and thereby increase the threat to the loggerhead sea turtle and its habitat. The USF&WS recognized that [r]easonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. 78 Fed. Reg. at 18040. To avoid these significant and unnecessary economic impacts and because the benefits of not designating critical habitat outweigh the benefits of designating such habitat, USFWS should not designate critical habitat for the loggerhead sea turtle. 4. The specific areas proposed to be designated as critical habitat for the loggerhead sea turtle in North Carolina are arbitrary and capricious. The USF&WS has indicated that it is important to conserve; (i) beaches that have the highest nesting densities (by State or region within a State); (ii) beaches that have a good geographic spatial distribution to ensure protection of genetic diversity; (iii) beaches that collectively provide a good representation of total nesting; and (iv) beaches adjacent to high density nesting beaches. 78 Fed. Reg. at 18008. None of these features support designating critical habitat along the 96 miles of North Carolina s beaches, including Carteret County s our beaches. The proposed designation is therefore is arbitrary and capricious. To select specific areas for critical habitat, the USF&WS analyzed nesting densities by State or regions within a State to ensure good spatial distribution of critical habitat. 78 Fed. Reg. at 18014-15. The USF&WS divided beach nesting densities into four equal groups and selected beaches that were within the top 25 percent (highest nesting densities) for designation as critical habitat. The USF&WS however failed to provide nesting data for each unit. Without this information, it is difficult to evaluate the USF&WS methodology. Nonetheless in determining high-density beaches within each State, rather than the entire Northern Recovery Unit, the USF&WS acknowledged North Carolina beaches would otherwise be low density when compared with beaches farther south (Georgia and South Carolina). Based on the 2012 nesting data provided by the North Carolina Wildlife Resources Commission, the South Carolina Department of Natural Resources, and the Georgia Wildlife Resources Commission; North Carolina, South Carolina, and Georgia had 1,074, 4,615, and 2,241 loggerhead sea turtle nests, respectively. Accounting for the length of shoreline in these states and based on the 2012 data, North Carolina, South Carolina, and Georgia have the following loggerhead sea turtle nest densities (nest/mile/year); 3.25, 24.8, and 24.0, respectively. Furthermore, based on the data provided by the Florida Fish and Wildlife Conservation Commission for 2012, the State of Florida had 98,601 loggerhead sea turtle nests with a density of 120.0. Clearly, the number of loggerhead sea turtle nests and density do not support designation of critical habitat in North Carolina. The USF&WS also indicated good spatial distribution is important to ensure protection of genetic diversity (resiliency and redundancy). 78 Fed. Reg. at 18006. The USF&WS however failed to provide any basis that loggerhead sea turtle nests in North Carolina are required to provide genetic diversity. The USF&WS also designated our beaches as critical habitat adjacent to high density beaches to support expansion of nesting. With respect to the Northern Recovery Unit, the USF&WS selected one island to the north and one island to the south, where appropriate, of each of the high-density nesting beaches.... 78 Fed. Reg. at 18015. Designating an entire island as critical habitat because it is adjacent to high density nesting beaches (especially

7 considering the nesting density in North Carolina) is arbitrary and capricious. For example, Bogue Banks was designated because it is adjacent to Bear Island, which contains high density nesting beaches. Bogue Banks is 24.2 miles long, while Bear Island is 4.1 miles long. With respect to the areas designated because they are adjacent to high-density nesting beaches in the Peninsular Florida and Northern Gulf of Mexico Recovery Units, the USF&WS selected adjacent beaches approximately 12.4 miles on either side of the high-density beach. Because North Carolina s beaches nesting density is so low compared to South Carolina, Georgia, and Florida; and because the USF&WS failed to provide any basis that North Carolina nesting beaches are required to provide genetic diversity, designating North Carolina beaches as critical habitat is arbitrary and capricious. 5. USF&WS failure to prepare an environmental impact statement in connection with designating critical habitat is a violation of the National Environmental Policy Act, 42 U.S.C. 4321, et seq. ( NEPA ). Citing Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), USFWS has taken the position that outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, USFWS is not required to prepare environmental analyses pursuant to NEPA in connection with designating critical habitat. 78 Fed. Reg. at 18047. Courts outside the Tenth Circuit, however, have held that the USFWS is required to determine the extent of the impacts of critical habitat designation in compliance with NEPA. See, e.g., Cape Hatteras Access Preservation Alliance v. U.S. Dep t of Interior, 344 F.Supp.2d 108 (D.D.C. 2004). Designation of critical habitat for the loggerhead sea turtle significantly affects the quality of the human environment, and USFWS is required to determine the extent of these impacts in compliance with NEPA. 6. USF&WS failure to make a consistency determination in connection with designating critical habitat is in violation of the Coastal Zone Management Act, 16 U.S.C. 1451, et seq. ( CZMA ). The proposed designation of critical habitat for the loggerhead sea turtle is subject to review by the North Carolina Division of Coastal Management (and other affected coastal states) pursuant to the CZMA. Federal agencies must determine if the proposed activity could be reasonably be expected to affect any land or water use or natural resource of the state s coastal zone. 15 C.F.R. 930.33. Whether consistency applies is not dependent on the type of federal activity, but on reasonably foreseeable coastal effects. 65 Fed. Reg. 77124, 77130 (Dec. 8, 2000). Federal agencies are to determine effects by looking at reasonably foreseeable direct and indirect effects of any coastal use or resource. 15 C.F.R. 930.33(a)(1). If such affects are reasonably foreseeable, the federal agency must then submit a consistency determination to the affected state no later than 90 days before the final federal action on the proposed activity. 15 C.F.R. 930.34. Even beneficial effects trigger the need for a consistency determination, unless the state and federal agency have agreed to exclude such activities. 15 C.F.R. 930.33(a)(4). Designation of critical habitat by USFWS will have reasonably foreseeable direct and indirect effects on any coastal use or resource of the affected states, including North Carolina. In fact, the National Marine Fisheries Service ( NMFS ) has recognized its obligations pursuant to the CZMA and routinely provides consistency determinations for its designations of critical habitat. USFWS failure to make a consistency determination in connection with designating critical habitat for the loggerhead sea turtle is in violation of the CZMA and its implementing regulations.

8 7. In proposing critical habitat for the loggerhead sea turtle, the USF&WS failed to use the best scientific data available. Federal agencies are required to designate critical habitat on the basis of the best scientific data available. 16 U.S.C. 1533(b)(2). In proposing to designate critical habitat for the loggerhead sea turtle, USFWS failed to comply with this mandate. For example, in analyzing the potential impacts of beach sand placement activities, the USF&WS relied on publications from as much as 26 years ago. 78 Fed. Reg. at 18010 (citing Nelson et al. 1987, Ackerman et al. 1991, and Ernest and Martin 1999). More recent studies analyzing beach placement activities are available [need examples], and USFWS failed to rely on these studies. We look forward to your responses, a public hearing, and changes to the proposed rule in the upcoming months. We are equally as hopeful the USF&WS will not designate any of North Carolina s beaches under the guise of loggerhead critical habitat when the final rule is released. Respectfully, Greg rudi Rudolph Shore Protection Manager cc: Richard Burr, United States Senate Kay Hagan, United States Senate Walter B. Jones, United States House of Representatives Mike McIntyre, United States House of Representatives Barbara Boxer, Chair Senate Committee on Environment and Public Works David Vitter, Ranking Member Senate Committee on Environment and Public Works Doc Hastings, Chair House Committee on Natural Resources Edward J. Markey, Ranking Member House Committee on Natural Resources Pat McCrory, Governor of the State of North Carolina Pat McElraft, N.C. Representative Norman W. Sanderson, N.C. Senator John E. Skvarla, III, Secretary of the North Carolina Dept. of Environment & Natural Resources Braxton Davis, Director, North Carolina Division of Coastal Management Louis Daniel, Director, North Carolina Division of Marine Fisheries d: /spm correspondences/2013/turtles/public comment USFWS