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Q&As: Final Rule to Designate Marine Critical Habitat for the Loggerhead Sea Turtle Northwest Atlantic DPS

What is critical habitat?

Critical habitat is defined by the Endangered Species Act (ESA). It is the geographic area(s) that contains features that are essential to the conservation of a threatened or endangered species and that may require special management considerations or protection.

What features are considered to determine critical habitat?

Under the ESA, critical habitat is defined by areas that have those physical or biological features essential to the conservation of a listed species and which may require special management considerations or protections.

The essential features may include, but are not limited to:

Do listed species in critical habitat areas receive more protection?

A critical habitat designation does not set up a refuge or sanctuary for the species, and has no specific regulatory impact on activities that do not require a federal permit, receive federal funding, or require some other action by a Federal agency. Designation of critical habitat also alerts the public to the importance of these areas and can help focus conservation activities for a listed species by identifying areas that contain habitat features that are essential to the conservation of the species.

How is critical habitat designated?

Critical habitat designations are guided by principles and conditions set forth in the ESA, and U.S. Fish & Wildlife Service and NOAA Fisheries joint regulations (50 CFR 424.12(b)).

To determine critical habitat, NOAA Fisheries first takes into consideration the biological needs of the species by identifying the essential features of critical habitat relevant to the species and the areas that would incorporate those essential features that may require special management or protection. Once these areas are identified, economic impacts, national security impacts and other relevant impacts of the designation must be considered. NOAA Fisheries may exclude any area from critical habitat if the benefits of the exclusion outweigh the benefits of designation, as long as the exclusion would not result in the extinction of the species.

A critical habitat designation is made available for public comment at the proposed rule stage and NOAA Fisheries takes into consideration any concerns and information before releasing a final designation. The proposed designation for loggerhead sea turtles was published in July 2013, and three public hearings were held in response to requests. All comments were considered when developing the final rule.

Who will be affected by this critical habitat designation?

Only Federal agencies are directly affected; however, non-federal entities will be affected if their activity involves federal funding, permitting, or authorization. For actions that affect loggerheads, federal agencies must already consult with NOAA Fisheries to ensure that their actions do not jeopardize the species' continued existence. The designation of critical habitat will mean that those agencies must also assess effects of their actions to the critical habitat. The requirement to consult does not apply to an activity that does not involve federal funding, permitting, or authorization.

While the Services make a case-by-case determination on the particular facts including cumulative impacts, because this designation is broad, if an action is relatively small, adverse modification critical habitat is be an issue. For example, in the case of these turtles, a single dredge channel being made through a (large) listed critical habitat area would not be likely to reach the level of "adverse modification."

Furthermore, in almost all instances, reasonable and prudent alternatives can be developed and the action goes forward. Thus, the Endangered Species Act as implemented provides significant leeway for action agencies and third parties permitted by them.

What happens during the consultation process?

If a formal consultation is needed, NOAA Fisheries will develop a biological opinion based on the best available science. If there are adverse effects to listed species, NOAA Fisheries will work with the action agency to minimize those impacts. If NOAA Fisheries determines there is likely to be jeopardy of the species, or destruction or adverse modification of critical habitat, the biological opinion will include reasonable and prudent alternatives to the proposed action.

What is a reasonable and prudent alternative?

Reasonable and prudent alternatives refer to alternative actions or modification to the proposed project that can be implemented in a manner consistent with the intended purpose of the action and are consistent with the federal permitting agency's legal authority and jurisdiction. Reasonable and prudent alternatives provided by NOAA on federal projects must be economically and technologically feasible and are designed to avoid jeopardizing the continued existence of listed species or destroying or adversely modifying the critical habitat. NMFS generally gives deference to the action agency in determining what is feasible.

Updated: July 9, 2014