[Federal Register Volume 63, Number 200 (Friday, October 16, 1998)]
[Rules and Regulations]
[Pages 55553-55557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27733]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE47
Endangered and Threatened Wildlife and Plants; Final Rule to
Establish an Additional Manatee Sanctuary in Kings Bay, Crystal River,
Florida
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: With this final rule, the Fish and Wildlife Service (Service)
establishes an additional West Indian manatee (Trichecus manatus)
sanctuary in Citrus County, Florida, adjacent to Kings Bay/Crystal
River at the confluence of the Three Sisters Spring run with a
residential canal, and prohibits all waterborne activities in the
sanctuary for a period of November 15 through March 31 of each year.
This final action will prevent the taking of manatees by harassment
resulting from waterborne activities ``which includes, but is not
limited to swimming, diving (including skin and scuba diving),
snorkeling, water skiing, surfing, fishing, the use of water vehicles,
and dredging and filling operations'' during the winter months. This
increases the number of sanctuaries in Kings Bay from six to seven and
has been initiated to prevent harassment caused by increasing public
use at this site. This action is taken under the authority of the
Endangered Species Act of 1973, as amended, and the Marine Mammal
Protection Act of 1972, as amended.
DATES: This rule is effective November 16, 1998.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Jacksonville Field
Office, U.S. Fish and Wildlife Service, 6620 Southpoint Drive South,
Suite 310, Jacksonville, Florida 32216-0912.
FOR FURTHER INFORMATION CONTACT: Robert O. Turner at the above address,
(904/232-2580, ext.117); or Vance Eaddy, Senior Resident Agent, U.S.
Fish and Wildlife Service (813/893-3651); or Elizabeth Souheaver,
Refuge Manager, Chassahowitzka National Wildlife Refuge, U.S. Fish and
Wildlife Service (352/563-2088).
SUPPLEMENTARY INFORMATION:
Background
Crystal River is a tidal river on the west coast of Florida.
Forming the headwaters of Crystal River is Kings Bay, a lake-like body
of water fed by numerous freshwater springs. The Kings Bay springs
constitute one of the most important natural warm-water refuges for
manatees, a federally listed endangered species. More than 250 animals
may seek refuge in the Bay's warm waters during winter cold periods.
With the winter presence of manatees and its sheltered, warm and clear
waters. Kings Bay also attracts large numbers of waterborne users
(boaters, recreational divers, snorkelers, and swimmers) most of whom
seek out manatees for a close viewing experience. The influx of
visitors, primarily there to see and interact with manatees, provides a
major economic impact to the Crystal River community.
Large aggregations of manatees apparently did not exist in Kings
Bay until recent times (Beeler and O'Shea 1988). The first careful
counts were made in the late 1960s. Since then manatee numbers have
increased significantly. In 1967-1968, Hartman (1979) counted 38
animals. By 1981-1982, the maximum winter count increased to 114
animals (Powell and Rathbun 1984). In December 1994, the count was 271
(U.S. Fish and Wildlife Service, unpublished data) and in January 1998,
the count was 298. Both births and immigration of animals from other
areas have contributed to the increases in manatee numbers at Crystal
River.
The second revision of the Florida Manatee Recovery Plan (U.S. Fish
and Wildlife Service, 1995) identifies the need to minimize disturbance
and harassment of manatees in the wild. This concern for the welfare of
manatees in Kings Bay has resulted in the establishment of a series of
sanctuary areas to protect manatees from any potential negative impacts
of human activities. The first three sanctuaries were created in 1980,
encompassing a total of about 10 acres in Kings Bay. These were closed
to all human access
[[Page 55554]]
each winter from November 15 to March 31 and provided manatees with
areas where they could retreat from waterborne users. To better
administer and protect the Bay's manatee habitat, the Service purchased
several islands associated with the sanctuaries in 1983 and established
the Crystal River National Wildlife Refuge. During the 1980's, the
number of manatees and divers increased steadily, resulting in the need
for additional manatee sanctuaries. In 1994, the Service established
three additional sanctuaries and expanded an existing sanctuary. The
six sanctuaries encompass approximately 39 acres within Kings Bay.
The Kings Bay manatee sanctuary system provides significant
protection to the more than 250 manatees that use this area as a winter
warm-water refuge. With the large number of manatees using Kings Bay
and an increasing number of recreational divers and snorkelers coming
to Crystal River to seek close encounters with manatees, another
problem area outside the existing sanctuary system has been identified.
Since the establishment of the three most recent sanctuaries,
reports of waterborne users harassing manatees and causing manatees to
leave the Three Sisters Spring run area has been documented by
researchers, refuge staff and concerned citizens. The Save the Manatee
Club and the U.S. Marine Mammal Commission have urged the Service to
act to protect manatees utilizing the Three Sisters Spring run area.
Dive shop operations have acknowledged that there is a manatee
harassment problem in the area around Three Sisters Spring.
Prior to the winter of 1996-97, the Service and local interest
groups met separately with local dive shop owners to discuss the
harassment issue and the feasibility of establishing a new sanctuary.
There was a consensus that a sanctuary was needed and that it would be
more effective if it was developed through a local city or county
ordinance. Representatives of each of the local dive shops wrote
letters recognizing the need for a small sanctuary near Three Sisters
Spring and recommended that the regulations be promulgated locally. To
date, the local government has not adopted regulation(s) to establish a
sanctuary at this site.
The Service funded a manatee and human interaction study at Three
Sisters Spring (January 23-February 17, 1997) which confirmed that
harassment was occurring and documented instances in which manatees
left the warm waters at the confluence of the spring run and the
residential canal when divers, snorkelers and/or swimmers arrived
(Wooding 1997). The Service is concerned that these animals may be
leaving earlier than if they were left undisturbed.
Reasons for Determination
In deciding to implement the emergency rule and proceed with a
proposed rule, the Service carefully assessed the best available
information, including the aforementioned study to evaluate manatee and
human interactions at Three Sisters Spring. The study clearly
documented a manatee harassment problem at the site. With more than 250
manatees using the sanctuary system along with an increasing number of
visitors who seek close encounters with manatees, manatees are
experiencing more frequent disturbance at Three Sisters Spring. Without
sufficient space to rest free from harassment, a significant proportion
of the manatees depending upon the Kings Bay springs could be at
considerable risk should they be driven away from essential warm water
areas. Based on this evaluation, the preferred action is to establish
an additional sanctuary at the confluence of the Three Sisters Spring
run and a residential canal in Kings Bay, Crystal River, Citrus County,
Florida.
Due to insufficient time to complete preparations for establishing
a permanent sanctuary before cold weather would arrive in November
1997, the Service proceeded with an emergency rule (November 26, 1997
(62 FR 63036)) that established an interim manatee sanctuary at Three
Sisters Spring for the November 24, 1997, through March 23, 1998, time
period. The emergency sanctuary was marked with a buoy system similar
to the other sanctuaries. To date, weekly aerial surveys by refuge
biologists have documented that manatee use of the sanctuary has
remained consistent and public use has remained at high numbers. The
public has respected the boundaries as is reflected by few enforcement
violations at the sanctuary.
A proposed rule to establish a permanent manatee sanctuary at Three
Sisters Spring was simultaneously published on November 26, 1997 (62 FR
63062) with the emergency rule. The proposed rule offered a public
hearing, if requested, and announced a 60-day public comment period
that ended January 28, 1998. Also, on November 17 and 28, 1997, legal
notices were placed in the Citrus County Chronicle and The St.
Petersburg Times Citrus Edition, respectively, advertising the
emergency and proposed rules and soliciting public comment.
The authority to establish manatee protection areas is provided by
the Endangered Species Act of 1973, as amended, and the Marine Mammal
Protection Act of 1972, as amended, and is codified in 50 CFR part 17,
subpart J. Under subpart J, the Director may establish, by regulation,
manatee protection areas whenever he/she determines there is
substantial evidence that there is imminent danger of a taking
(including harassment) of one or more manatees, and that such
establishment is necessary to prevent such a taking.
The sanctuary is located on the west side of the confluence of
Three Sisters Spring run and the residential canal, Kings Bay, Crystal
River, Citrus County, Florida. The sanctuary is less than one quarter
acre in size. A standard survey of the sanctuary area has been
performed. The new area will be delineated with buoys, as are the
existing sanctuaries.
Summary of Comments and Recommendations
We received a total of seven letters during the comment period. All
were supportive and recommended that the Service establish a permanent
sanctuary as proposed. The U.S. Marine Mammal Commission's letter
supported the Service's proposal, but stated that they were concerned
that establishing the sanctuary through local efforts (city, county)
would create the potential for inconsistencies in rule provisions and
enforcement actions, such as the amounts of penalties for violation.
Although the Service indicated in the proposed rule that it would leave
the option open for local government to establish a sanctuary at Three
Sisters Spring, this did not occur and the Service has proceeded with
this final rule. The Marine Mammal Commission letter also commended the
Service for the progress it is making to address manatee harassment
problems at Kings Bay and suggested several additional measures to
address the harassment issue. To further reduce harassment, the Service
has increased public outreach efforts designed to educate boaters,
swimmers, and divers on how they can avoid harassing or disturbing
manatees. The Service has established a Manatee Education Center
located near Crystal River at the Homossassa Springs State Park. The
Service, in cooperation with the Save the Manatee Club and the
Professional Association of Diving Instructors, has developed a new
educational brochure entitled If You Love Me, Don't Disturb Me. This
brochure specifically addresses the
[[Page 55555]]
issue of swimmer interactions with manatees. It is expected that over
50,000 copies will be distributed to the public during 1998.
In light of the supportive comments received from the media,
citizens, and local dive shops, and the fact that local city and county
governments did not step forward to establish the sanctuary themselves,
the Service has concluded that it is in the best interest of the
manatee to make the emergency sanctuary permanent. This is needed to
accommodate the increase in the number of manatees using the Three
Sisters Spring area as a warm water refuge, and to offset harassment
from the increasing public use. The sanctuary system is essential to
ensure adequate undisturbed natural areas in Kings Bay, where manatees
can meet their needs, including warm water, food, and areas for resting
and socializing. No changes to the proposed rule are necessary or
warranted and, since there was no request for a public hearing, the
Service is proceeding with this final rule action.
National Environmental Policy Act
The Service has determined this action qualifies as a categorical
exclusion in accordance with 516 DM 2, Appendix 1 and 516 DM 5,
Appendix 1. No further National Environmental Policy Act documentation
will, therefore, be made.
Required Determinations
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action and was not subject to review by
the Office of Management and Budget.
a. This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit and economic
analysis is not required. It is not expected that any significant
impacts would result from the establishment of a sanctuary of less than
one quarter acre in size at Three Sisters Spring. The dive shops, tour
operators and public are supportive of the sanctuary and respected the
boundaries of the emergency rule, as was reflected by few enforcement
violations at the emergency sanctuary.
b. This rule will not create inconsistencies with other agencies'
actions. The precedent to establish manatee sanctuaries in Kings Bay
was established when the first three sanctuaries were created in 1980,
encompassing a total of about 10 acres in Kings Bay. These were closed
to all human access each winter from November 15 to March 31 and
provided manatees with areas where they could retreat from waterborne
users. In 1994, the Service established three additional sanctuaries
and expanded an existing sanctuary. The six sanctuaries encompass
approximately 39 acres within Kings Bay. The Service does not believe
that the establishment of a seventh manatee sanctuary at Three Sisters
Spring, which will be less than one quarter acre in size, would
conflict with existing or proposed human activities or hinder public
utilization of the Three Sisters Spring area. Over 400 acres of
waterways in Kings Bay are available for public use. The emergency
sanctuary was marked with a buoy system similar to the other
sanctuaries from November 26, 1997, until March 26, 1998. Weekly aerial
surveys by refuge biologists documented that manatee use of the
sanctuary remained consistent and that the public use also remained at
high numbers. The public respected the boundaries as was reflected by
few enforcement violations at the sanctuary.
c. This final rule will not materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients. There are minimal restrictions to existing human uses of
the Three Sisters Spring area as a result of this rule, but the
restriction has been shown to enhance manatee viewing opportunities. No
entitlements, grants, user fees, loan programs or the rights and
obligations of their recipients are expected to occur.
d. This rule will not raise novel legal or policy issues. The
Service has previously established six other manatee sanctuaries in
Kings Bay--three in 1980, their expansion and the creation of the
Crystal River National Wildlife Refuge in 1983 and three new
sanctuaries and the expansion of an existing sanctuary in 1994. This
final action will reduce the need for enforcement actions to prevent
the taking of manatees by harassment resulting from human-related
waterborne activities such as swimming, diving, snorkeling, fishing,
the use of water vehicles and dredging and filling operations in the
Three Sisters Spring area.
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Neither a Regulatory Flexibility Analysis nor a Small Entity
Compliance Guide is required. The additional manatee sanctuary in
King's Bay will be less than one quarter acre in size, bringing the
total area of seasonally-restricted manatee sanctuaries in King's Bay
to approximately 40 acres. Over 400 acres of waterways in King's Bay
are available for public use and local dive shops have expressed
support for an additional manatee sanctuary at Three Sisters Spring.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule will restrict
waterborne activities seasonally in less than one quarter acre of
waterway. This will bring the total acreage in seasonally restricted
sanctuaries in Kings Bay to approximately 40 acres, leaving over 400
acres in Kings Bay available for public use. Thus, this rule should
have little or no effect on local dive shops, etc. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. County and
local governments abstained from developing a local sanctuary ordinance
and opted for the Service to establish the sanctuary.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year, i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. The sanctuary is located over state owned submerged
bottoms. This sanctuary, as have the previous six manatee sanctuaries
that are adjacent to private lands, allows property owners navigational
access to their property
[[Page 55556]]
during the November 15 through March 31 closures.
Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. This rule will not have substantial direct effects on the
States, in their relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. The Service coordinated with the State of
Florida on the development of a manatee sanctuary at Three Sisters
Spring.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and does not meet the requirements of sections 3(a) and
3(b)(2) of the Order.
Paperwork Reduction Act
This regulation does not contain collections of information that
require approval by the Office of Management and Budget under 44 U.S.C.
3501 et seq. The regulation does not impose record keeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated possible
effects on Federally recognized Indian tribes and have determined that
there are no effects.
References Cited
Beeler, E.I. and T.J. O'Shea. 1988. Distribution and mortality of
the West Indian manatee (Trichechus manatus) in southeastern United
States: a compilation and review of recent information. Prepared by
the U.S. Fish and Wildlife Service for the U.S. Army Corps of
Engineers. U.S. Natl. Tech. Info. Serv., Springfield, Virginia PB
88-207 980/AS. 613 pp.
Hartman, D.S. 1979. Ecology and behavior of the manatee (Trichechus
manatus) in Florida. Am. Soc. Mamm. Spec. Pub. No. 5. 153 pp.
Powell, J.A. and G.B. Rathbun. 1984. Distribution and abundance of
manatees along the northern coast of the Gulf of Mexico. Northeast
Gulf Sci. 7:1-2.
Wooding, J. 1997. An assessment of manatee behavior relative to
interactions with humans at Three Sisters Springs, Crystal River,
Florida. A report submitted to the U.S. Fish and Wildlife Service,
Jacksonville, Florida. 65 pp.
U.S. Fish and Wildlife Service. 1995. Florida Manatee Recovery Plan
Second Revision. U.S. Fish and Wildlife Service, Atlanta, Georgia.
160 pp.
Author
The primary author of this final rule is Robert O. Turner, Manatee
Coordinator (see ADDRESSES section above).
Authority
The authority to establish manatee protection areas is provided by
the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.), and the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-
1407), as amended.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, the Service amends part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub.L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.108 by adding paragraph (a)(7) and revising the
map at the end of the section to read as follows:
Sec. 17.108 List of designated manatee protection areas.
(a) * * *
(7) A tract of submerged land, lying in Section 28, Township 18
South, Range 17 East, Tallahassee Meridian, Citrus County, Florida,
more particularly described as follows: For a point of reference,
commence at the southwest corner of said Section 28 (N-1651797.56 E-
463846.96) Florida Coordinate System, West Zone, NAD 1983, N.G.S.
adjustment of 1990 (expressed in U.S. survey feet); thence N.
40 deg.08'47'' E., 5551.65 feet (5551.57 feet grid distance) to an
aluminum monument stamped ``PSM 3341 1998'' (N1656009.01 E-
467449.35) marking the Point of Beginning; thence N. 77 deg.06'49''
E., 71.84 feet to an aluminum monument stamped ``PSM3341 1998'' (N-
1656025.04, N-467519.38); thence S. 04 deg.37'09'' W., 29.88 feet to
an aluminum monument stamped ``PSM 3341 1998'' (N-1655995.26 E-
467516.98); thence N. 78 deg.29'57'' W., 69.01 feet to the point of
beginning; to be known as the Three Sisters Spring Sanctuary.
* * * * *
BILLING CODE 4310-55-P
[[Page 55557]]
[GRAPHIC] [TIFF OMITTED] TR16OC98.000
Dated: October 8, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-27733 Filed 10-15-98; 8:45 am]
BILLING CODE 4310-55-C