On January 5, 2010, the National Marine Fisheries Service ("NMFS") issued a proposed rule designating 70,600 square miles of critical habitat for endangered leatherback sea turtles (Dermochelys coriacea) along the West Coast, covering portions of Washington, Oregon, and California. Section 4 of the Endangered Species Act ("ESA") requires NMFS to designate critical habitat for threatened and endangered species on the basis of the best available scientific data, after taking into consideration economic, national security, and other impacts. The designation of critical habitat does not create a wildlife preserve, but Section 7 of the ESA requires that federal agencies ensure that federally authorized projects, such as wave or tidal energy projects, do not destroy or adversely modify critical habitat.

The leatherback sea turtle is a pelagic species with a range that spans the entire Pacific Ocean. Leatherbacks aggregate in productive coastal areas to forage on jellyfish and, for this reason, they seasonally occupy portions of the California current along the West Coast. The leatherback sea turtle was listed as "endangered" in 1970. In 1978, critical habitat was initially designated for the turtle in and around portions of the island of St. Croix in the U.S. Virgin Islands. In October, 2007, NMFS received a petition from environmental advocacy groups to designate additional critical habitat along the West Coast.

In the proposed rule, NMFS proposes to designate portions of the area petitioned by the environmental groups. The basis for the designation is evidence suggesting that leatherback sea turtles may occupy offshore areas to prey on jellyfish. Areas proposed for designation are areas thought to support jellyfish populations and areas thought to provide migration corridors for turtles to access prey. NMFS declined to designate certain areas along the West Coast on the basis that economic and national security considerations outweigh the benefits of the designation in those particular areas. The proposed rule, along with a map showing the areas proposed for designation, is available at the link above .

The proposed designation may have ramifications for offshore energy developers planning tidal, wave, or LNG projects. Under Section 7 of the ESA, FERC must ensure that any such projects occurring in areas designated as critical habitat do not destroy or adversely modify the habitat. Stoel Rives has a broad depth of experience covering all aspects of the ESA, including advising on critical habitat issues and issues involving leatherback sea turtles.