November 22, 2013

Residents protest designation of offshore
waters as loggerhead critical habitat


Facing the prospect of yet more regulation off their beaches, Outer Banks residents at a hearing Thursday in Manteo took to appealing directly to agency officials for relief.

The National Oceanic and Atmospheric Administration is proposing to designate northern North Carolina offshore waters as critical habitat for loggerhead turtles. The U.S. Fish and Wildlife Service has a separate proposed rule for the land-based habitat.

“We have already lost income because of some of the other environmental studies,” Marianne O’Neal of Hatteras told NOAA staff conducting the meeting at the county administrative building.  “We are asking for your help to keep the environmental special interest groups at bay. Please reconsider. Please.”

In a brief presentation about the proposed rule, NOAA biologist Susan Pultz explained that the loggerhead has been listed on the Endangered Species Act as threatened since 1978, prior to implementation of the critical habitat rule. But when the listing was revised in 2011, the agency was compelled by law to designate critical habitat, which defines areas crucial to conservation of the species that may require special management considerations or protection.

But a lawsuit filed in January by the Center for Biological Diversity, Oceana, and the Turtle Island Restoration Network against the National Marine Fisheries Service –a branch of NOAA –and Fish and Wildlife created further pressure to get the rules published.

Pultz said that federal management of the turtles has already included numerous agencies, and she does not anticipate that a critical habitat designation would involve any additional management beyond minor paperwork.

“We have considered habitat every time we have consulted with the other agencies already,” she said.

NOAA Fisheries has jurisdiction of the turtles in the water, where they migrate and forage, corresponding with beach habitat that Fish and Wildlife has proposed to designate. Although the agencies are working separately on their proposed rules, Pultz said they intend to release them concurrently.

The ESA requires the designation for threatened or endangered species on the basis of the best scientific data available, taking into consideration impacts on the economy. But the law also has wiggle room. The Secretary of Commerce has the discretion –unless it would cause species extinction --to exclude areas if it is determined that the benefits of exclusion outweigh those of a critical habitat designation.

That seemed to be the opening that inspired several speakers at the hearing to ask the agency to leave North Carolina out of critical habitat areas, especially considering the low turtle activity off its coast compared with Florida.

“The fact that the state of Florida has 90 percent of nesting, and the state of North Carolina accounts for 1 percent of nesting, ought to be a very clear sign that you don’t belong here,” said Jim Keene, past president of the North Carolina Beach Buggy Association.
“That’s what you give us – bad science,” he added. “It’s incomplete science.”

Another layer of regulation on top of ever increasing regulations on fishing, beach driving, and shoreline management is intolerable, said the 20 or so speakers, all of whom were opposed to the designation.  In his remarks, State Rep. Paul Tine from Kitty Hawk questioned the lack of “up-to-date, good data.”

U.S. Sens. Kay Hagan, D-N.C., and Richard Burr, R-N.C.,  as well as U.S. Rep. Walter Jones, R-N.C., also oppose critical habitat in the state.

“Critical habitat is something that we deal with day in and day out,” said John Couch, president of Outer Banks Preservation Association, referring to the piping plover.

 “At some point, somebody in the government is going to have to stand up (to litigious environmental groups) and say, “Enough is enough.”

NOAA’s proposal analyzed offshore –oceanic-- and nearshore – neritic-- habitats in determining critical habit for loggerheads. Both encompass sargassum habitat.

The nearshore habitat includes areas where turtles breed, swim, forage, migrate and winter, and where hatchlings swim. The shoreline from the Florida-Georgia border to southern Virginia make up the northern recovery unit for nearshore turtle reproductive habitat, based largely on the location of nesting beaches.

According to the draft document detailing the proposed designation, an area south of Cape Hatteras is an important wintering area for the turtles because of the proximity of the warm Gulf Stream waters.  Data also shows that many turtles migrate south in the winter in a narrow corridor along the continental shelf off the Outer Banks.

Areas extending one mile off a high-density nesting beach were identified as essential to conservation of loggerheads, the document said, “because nearshore waters pose the greatest opportunity for disruption of the habitat functions” for hatchlings and nesting females.

An economic survey that will be incorporated into the final document found that the designation would have a low economic impact, resulting in none of the 36 proposed marine areas in the Northwest Atlantic Distinct Population Segment, which includes the Outer Banks, being considered for exclusion.

The economic analysis found that the cost impact over the next 10 years would total $750,000, most of it for administrative costs. It also did not forecast any changes to the scope, scale, or management of fisheries or related activities because of the critical habitat rule. But because of unknowns involved in future projects, such as dredging and beach nourishment, estimates on those construction costs and conservation impacts were less certain.

The document said that the agency “anticipates that projects that alter the habitat in such a way to impact transit back and forth from the nearshore waters to the beach for nesting loggerhead sea turtles may result in additional conservation efforts due to the designation of critical habitat.

No specific projects that would constitute an adverse modification had been identified by NOAA Fisheries, it said.

“Project proponents may experience indirect effects of the designation including costs associated with project delay due to litigation and the increased length of time it will take (NOAA Fisheries) to review projects,” the report said.

Even with the assurances from NOAA’s Pultz that the designation would result in little, if any, change in management, Dare County Board of Commissioners Chairman Warren Judge said the problem is not the agency as much as the environmental groups’ lawsuits.

Currently, there are at least two pending legal actions affecting Dare County brought by environmental organizations, and a recently resolved suit has limited beach driving.

“Most of us in this room know what will happen,” he said. That is, NOAA would be sued.  “We in Dare County are living examples to that very process.”

As a proactive measure, Judge suggested that NOAA allow the county to build a turtle hatchery.

Russell Overman, the county manager for Carteret County, said that his county does not believe that the designation will do anything to improve conservation of loggerheads, and it is not warranted in North Carolina.

But what the designation would do, Overman said, is add “significant costs to already significant costs” for beach projects and harm tourism.
Bobby Smith, a charter boat captain, said he makes 200 trips a year, most of them two or three miles off the beach.

“A mile out would crush the fleet of charter boats,” he said. “The main problem I have is your impact study. I don’t know who did it, but nobody talked to me.”


Comments will be accepted through Nov. 29. Submit comments by:

Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to!docketDetail;D=NOAA-NMFS-2013-0079, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

Mail: Submit written comments to Susan Pultz, NMFS, Office of Protected Resources, 1315 East West Highway, Silver Spring, MD 20910.
Fax: 301-713-0376; Attn: Susan Pultz.

To view documents on the critical habitat proposal, see:

For a related story on the U.S. Fish and Wildlife Service’s proposal for land-based critical  habitat for loggerhead turtles, go to    

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