[Federal Register Volume 65, Number 66 (Wednesday, April 5, 2000)]
[Rules and Regulations]
[Pages 17786-17804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8394]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 991116305-0083-02; I.D. No. 110599D][A]
RIN 0648-AL82
Designated Critical Habitat: Critical Habitat for Johnson's
Seagrass
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS is designating critical habitat for Johnson's seagrass
(Halophila johnsonii) pursuant to section 4 of the Endangered Species
Act (ESA). Johnson's seagrass is found on the east coast of Florida
from Sebastian Inlet to central Biscayne Bay. Within this range, 10
areas are being designated as critical habitat: a portion of the Indian
River Lagoon, north of the Sebastian Inlet Channel; a portion of the
Indian River Lagoon, south of the Sebastian Inlet Channel; a portion of
the Indian River Lagoon near the Fort Pierce Inlet; a portion of the
Indian River Lagoon, north of the St. Lucie Inlet; a portion of Hobe
Sound; a site on the south side of Jupiter Inlet; a site in central
Lake Worth Lagoon; a site in Lake Worth Lagoon, Boynton Beach; a site
in Lake Wyman, Boca Raton; and a portion of Biscayne Bay. NMFS is
modifying various aspects of the proposed rule, including the removal
as critical habitat of the Intracoastal Waterway (ICW) channel in the
designated areas, and enlarging the Lake Wyman site.
The designation of critical habitat provides explicit notice to
Federal agencies and the public that these areas and features are vital
to the conservation of the species.
DATES: This rule is effective May 5, 2000.
FOR FURTHER INFORMATION CONTACT: Layne Bolen, NMFS, Southeast Region,
850-234-6541 ext 237, or Marta Nammack, NMFS, Office of Protected
Resources, 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
NMFS published a proposed rule to list Johnson's seagrass as a
threatened species on September 15, 1993 (58 FR 48326), and a proposed
rule to designate critical habitat on August 4, 1994 (59 FR 39716). A
public hearing on both the proposed listing and critical habitat
designation was held in Vero Beach, Florida, on September 20, 1994. As
a result of public input during the comment period, NMFS postponed
further action on listing. In order to update the original status
report (Kenworthy, 1993) and to include information from new field and
laboratory research on species distribution, ecology, genetics and
phylogeny, NMFS convened a workshop on the biology, distribution, and
abundance of H. johnsonii. The results of this workshop were summarized
in the proceedings (Kenworthy, 1997) submitted to NMFS on October 15,
1997. NMFS reopened the comment period for the proposed listing on
April 20, 1998 (63 FR 19468). The final rule to list Johnson's seagrass
as a threatened
[[Page 17787]]
species was published by NMFS on September 14, 1998 (63 FR 49035).
Section 4(a)(3)(A) of the ESA requires that, to the maximum extent
prudent and determinable, NMFS designate critical habitat concurrently
with a determination that a species is endangered or threatened. At the
time of final listing, critical habitat was not determinable because
new information needed to perform the required analysis was not yet
available. On February 23, 1999, NMFS established and convened a
recovery team to prepare a recovery plan and develop recommendations
for critical habitat for Johnson's seagrass. Based on these
recommendations and the best available scientific data on the
distribution, ecology, and genetics of this species, NMFS published a
re-proposed rule on December 2, 1999 (64 FR 67536), to designate
critical habitat for Johnson's seagrass. This final rule takes into
consideration the new information and comments received in response to
this re-proposed rule.
The final designation identifies those physical and biological
features of the habitat that are essential to the conservation of the
species and that may require special management consideration or
protection. The economic and other impacts resulting from designating
critical habitat, over and above those that result from listing the
species, are expected to be minimal.
The use of the term ``essential habitat'' within this document
refers to critical habitat as defined by the ESA and should not be
confused with the requirement to describe and identify Essential Fish
Habitat pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. 1801 et seq.
Definition of Critical Habitat
Critical habitat is defined in section 3(5)(A) of the ESA as ``(i)
the specific areas within the geographical area occupied by the
species...on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and (ii) specific
areas outside the geographical area occupied by the species...upon a
determination by the Secretary of Commerce (Secretary) that such areas
are essential for the conservation of the species.'' The term
``conservation'' as defined in section 3(3) of the ESA, means ``...to
use and the use of all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to this Act are no longer
necessary.''
In designating critical habitat, NMFS must consider the
requirements of the species, including: (1) space for individual and
population growth, and for normal behavior; (2) food, water, air,
light, minerals, or other nutritional or physiological requirements;
(3) cover or shelter; (4) sites for breeding, reproduction, or rearing
of offspring; and, generally, (5) habitats that are protected from
disturbance or are representative of the historic geographical and
ecological distributions of the species (50 CFR 424.12(b)).
In addition, NMFS must focus on and list the known physical and
biological features (primary constituent elements) within the
designated area(s) that are essential to the conservation of the
species and that may require special management considerations or
protection. These essential features may include, but are not limited
to, food resources, water quality or quantity, and vegetation and
sediment types and stability (50 CFR 424.12(b)).
Benefits of Designating Critical Habitat
The designation of critical habitat does not, in itself, restrict
state or private activities within the area or mandate any specific
management or recovery actions. A critical habitat designation
contributes to species conservation primarily by identifying important
areas and describing the features within those areas that are essential
to the species, thus alerting public and private entities to the
importance of the area. Under the ESA, the only regulatory impact of a
critical habitat designation is through the provisions of ESA section
7. Section 7 applies only to actions with Federal involvement (e.g.,
authorized, funded, or conducted by a Federal agency) and does not
affect exclusively state or private activities.
Under the ESA section 7 provisions, a designation of critical
habitat would require Federal agencies to ensure that any action they
authorize, fund, or carry out is not likely to destroy or adversely
modify the designated critical habitat. Activities that destroy or
adversely modify critical habitat are defined as those actions that
``appreciably diminish the value of critical habitat for both the
survival and recovery'' of the species (50 CFR 402.02). Regardless of a
critical habitat designation, Federal agencies must ensure that their
actions are not likely to jeopardize the continued existence of the
listed species. Activities that jeopardize a species are defined as
those actions that ``reasonably would be expected, directly or
indirectly, to reduce appreciably the likelihood of both the survival
and recovery''of the species (50 CFR 402.02). Using these definitions,
in most cases activities that are likely to destroy or adversely modify
critical habitat would also be likely to jeopardize the species.
Therefore, in most cases the protection provided by a critical habitat
designation generally duplicates the protection provided under the
section 7 jeopardy provision. Critical habitat may provide additional
benefits to a species in cases where areas outside of the species'
current range have been designated. In these cases, Federal agencies
are required to consult with NMFS under section 7 (50 CFR 402.14 (a))
when these designated areas may be affected by their actions. The
effects of these actions on designated areas may not have been
recognized but for the critical habitat designation.
A designation of critical habitat provides Federal agencies with a
clearer indication as to when consultation under section 7 of the ESA
is required, particularly in cases where the action would not result in
direct mortality, injury, or harm to individuals of a listed species
(e.g., an action occurring within the critical habitat area when or
where Johnson's seagrass is not present). The critical habitat
designation, in describing the essential features of the habitat, also
helps determine which activities conducted outside the designated area
are subject to ESA section 7 (i.e., activities that may affect
essential features of the designated area). For example, disposal of
waste material in water adjacent to a critical habitat area may affect
an essential feature of the designated habitat (water quality) and
would be subject to the provisions of section 7 of the ESA.
A critical habitat designation also assists Federal agencies in
planning future actions because the designation establishes, in
advance, those habitats that will be given special consideration in ESA
section 7 consultations. This is particularly true in cases where there
are alternative areas that would provide for the conservation of the
species and the success of the action. With a designation of critical
habitat, potential conflicts between Federal actions and endangered or
threatened species can be identified and possibly avoided early in the
agency's planning process.
Another indirect benefit of designating critical habitat is that it
helps focus Federal, state and private conservation and management
efforts in those areas. Recovery efforts may address special
considerations needed in critical habitat areas, including
[[Page 17788]]
conservation regulations that restrict private as well as Federal
activities. No additional conservation regulations are associated with
this critical habitat designation, however. Any future proposal would
require a full, separate rulemaking. Other Federal, state and local
laws or regulations, such as zoning or wetlands protection, may also
provide special protection for critical habitat areas.
Consideration of Economic and Other Factors
The economic, environmental, and other impacts of a designation
must also be evaluated and considered. NMFS must identify present and
future activities that may adversely modify designated critical habitat
or be affected by a designation. An area may be excluded from a
critical habitat designation if NMFS determines that the overall
benefits of exclusion outweigh the benefits of designation, unless the
exclusion will result in the extinction of the species (16 U.S.C.
1533(b)(2)).
The impacts considered in this analysis are only those incremental
impacts that specifically result from designating critical habitat
above the economic and other impacts attributable to listing the
species or resulting from other authorities. These incremental impacts
are expected to be minimal (see Benefits of Designating Critical
Habitat section). In general, the designation of critical habitat
highlights geographical areas of concern and reinforces the substantive
protection resulting from the listing itself.
Section 9 of the ESA prohibits certain activities that directly or
indirectly affect endangered species. These prohibitions apply to all
persons and entities subject to U.S. jurisdiction. Section 9
prohibitions apply automatically to endangered species; however, this
is not the case for threatened species. Section 4(d) of the ESA directs
the Secretary to implement regulations ``to provide for the
conservation of [threatened] species'' that may include extending any
or all of the prohibitions of section 9(a)(2) to threatened species.
Section 9(a)(2)(E) of the ESA also prohibits violations of
protective regulations for threatened species of plants implemented
under section 4(d). NMFS may issue protective regulations pursuant to
section 4(d) for Johnson's seagrass in a future rulemaking.
Impacts attributable to listing also include those resulting from
the responsibility of all Federal agencies under section 7 of the ESA
to ensure that their actions are not likely to jeopardize endangered or
threatened species. An action could be likely to jeopardize the
continued existence of a listed species through the destruction or
adverse modification of its habitat, whether or not that habitat has
been designated as critical.
Need for Special Management Consideration or Protection
NMFS has determined that the essential areas and features described
here are at risk and may require special management consideration or
protection. Special management may be required because of the following
activities: (1) Vessel traffic and the resulting propeller dredging and
anchor mooring; (2) dredging; (3) dock, marina, and bridge construction
and shading from these structures; (4) water pollution; and (5) land
use practices including shoreline development, agriculture, and
aquaculture. Activities associated with recreational boat traffic
account for the majority of human use associated with the critical
habitat areas. The destruction of the benthic community due to boating
activities, propeller dredging, anchor mooring, and dock and marina
construction was observed at all sites during a study by NMFS from 1990
to 1992. These activities severely disrupt the benthic habitat,
breaching root systems, severing rhizomes, and significantly reducing
the viability of the seagrass community. Propeller dredging and anchor
mooring in shallow areas are a major disturbance to even the most
robust seagrasses. This destruction is expected to worsen with the
predicted increase in boating activity. Trampling of seagrass beds, a
secondary effect of recreational boating, also disturbs seagrass
habitat. Populations of Johnson's seagrass inhabiting shallow water and
water close to inlets, where vessel traffic is concentrated, will be
most affected.
The constant sedimentation patterns in and around inlets require
frequent maintenance dredging, which could either directly remove
essential seagrass habitat or indirectly affect it by redistributing
sediments, burying plants and destabilizing the bottom structure.
Altering benthic topography or burying the plants may remove them from
the photic zone.
Permitted dredging of channels, basins, and other in-and on-water
construction projects cause loss of Johnson's seagrass and its habitat
through direct removal of the plant, fragmentation of habitat, and
shading. Docking facilities that, upon meeting certain provisions, are
exempt from state permitting also contribute to loss of Johnson's
seagrass through construction impacts and shading. Fixed add-ons to
exempt docks (such as finger piers, floating docks, or boat lifts) have
recently been documented as an additional source of seagrass loss due
to shading (Smith and Mezich, 1999).
Decreased water transparency caused by suspended sediments, water
color, and chlorophylls could have significant detrimental effects on
the distribution and abundance of the deeper water populations of
Johnson's seagrass. A distribution survey in Hobe and Jupiter Sounds
indicates that the abundance of this seagrass diminishes in the more
turbid interior portion of the lagoon where reduced light limits
photosynthesis.
Other areas of concern include seagrass beds located in proximity
to rivers and canal mouths where low salinity, highly colored water is
discharged. Freshwater discharge into areas adjacent to seagrass beds
may provoke physiological stress upon the plants by reducing the
salinity levels. Additionally, colored waters released into these areas
reduce the amount of sunlight available for photosynthesis by rapidly
attenuating shorter wavelengths of Photosynthetically Active Radiation.
Also, continuing and increasing degradation of water quality due to
increased land use and water management threatens the welfare of
seagrass communities. Nutrient over-enrichment caused by inorganic and
organic nitrogen and phosphorous loading via urban and agricultural
land run-off stimulate increased algal growth that may smother
Johnson's seagrass, shade rooted vegetation, and diminish the oxygen
content of the water. Low oxygen conditions have a demonstrated
negative impact on seagrasses and associated communities.
Special consideration and protection for these and other habitat
features are evaluated in the ESA section 7 consultation process.
Special management needs and the protection of these habitat features
are being addressed in the development and implementation of the
recovery plan.
Activities That May Affect Critical Habitat
A wide range of activities funded, authorized or carried out by
Federal agencies may affect the essential habitat requirements of
Johnson's seagrass. These include authorization by the COE for beach
nourishment, dredging, and related activities including construction of
docks and marinas; bridge construction projects funded by the Federal
Highway Administration; actions by the U.S. Environmental Protection
Agency and the COE to manage freshwater discharges into
[[Page 17789]]
waterways; regulation of vessel traffic by the U.S. Coast Guard (USCG);
management of national refuges and protected species by the U.S. Fish
and Wildlife Service; management of vessel traffic (and other
activities) by the U.S. Navy; approval of changes to Florida's coastal
zone management plan by NOAA's National Ocean Service; and management
of commercial fishing and protected species by NMFS.
Expected Impacts of Designating Critical Habitat
This designation will identify specific habitat areas that have
been determined to be essential for the conservation of Johnson's
seagrass and that may be in need of special management considerations
or protection. It will require Federal agencies to evaluate their
activities with respect to the critical habitat of this species and to
consult with NMFS pursuant to section 7 of the ESA before engaging in
any action that may affect the critical habitat.
As discussed in the section on activities that may impact essential
habitat and features, the Federal activities that may affect critical
habitat are the same activities that may affect the species itself. For
plants, this is particularly true when analyzing the impacts of
designating critical habitat. For example, the activities that affect
water quality, an essential feature of critical habitat, will also be
considered in terms of how they affect the species itself.
Federal agencies will continue to engage in ESA section 7
consultations to determine if the actions they authorize, fund or carry
out are likely to jeopardize the continued existence of Johnson's
seagrass; however, with designation, they would also need to address
explicitly impacts to the species' critical habitat. This is not
expected to affect materially the scope of future consultations or
result in greater economic impacts, since most impacts to Johnson's
seagrass habitat will already be considered in ESA section 7
consultations.
The economic costs to be considered in a critical habitat
designation are the incremental costs of designation above the economic
impacts attributable to listing or attributable to authorities other
than the ESA. NMFS has determined that there are few, if any,
incremental net costs for areas within the species' current
distribution, and no areas outside the current range are being
designated as critical habitat.
Critical Habitat of Johnson's Seagrass
The biology of Johnson's seagrass is discussed in the final rule to
list the species as threatened (63 FR 49035, September 14, 1998) and
includes information on the current status of the species, its life
history characteristics and habitat requirements, as well as projects,
activities and other factors affecting the species. The physical
habitat that supports Johnson's seagrass includes both shallow
intertidal and deeper subtidal zones. The species prospers and is able
to colonize and maintain stable populations either in water that is
clear and deep (2-5 m) or in water that is shallow and turbid. In tidal
channels, it inhabits coarse sand substrates.
Based on published reports and discussions with seagrass experts,
the distributional range of Johnson's seagrass is limited to the east
coast of Florida from central Biscayne Bay (25 deg.45' N. lat.) to
Sebastian Inlet (27 deg.51' N. lat.). There have been no reports of
healthy populations of this species outside the presently known range.
Although the species occurs throughout the Indian River Lagoon and
Lake Worth, the designated critical habitat areas encompass the largest
known contiguous populations of Johnson's seagrass, those areas known
to have persistent populations, those populations known to have
persistent flowering, those populations found to have unique genetic
variability, and/or populations that include the northern and southern
limits of the species' range.
The species is distributed in patches within its range. The
dimensions of patches range from a few square centimeters to
approximately 327 square meters (sq.m). The survival of the species
likely depends on maintaining its existing viable populations,
especially the areas where the larger patches are found. The Sebastian
Inlet population is believed to be the northern limit of its
distribution and includes flowering patches that have a known
persistence of at least 10 years. Ft. Pierce Inlet and Jupiter Inlet
are also found to have persistent and flowering populations. The other
designated critical habitat areas represent the core range of the
species where Johnson's seagrass is found to be abundant compared to
other parts of its range, exhibits unique genetic make-up, or comprises
the southern limit of its range.
Spread of the species into new areas is limited by its reproductive
potential. Johnson's seagrass possesses only female flowers; thus
vegetative propagation, most likely through asexual branching, appears
to be its only means of reproduction and dispersal. If an established
community is disturbed, regrowth and reestablishment are extremely
unlikely. If extirpated from an area, it is doubtful that the species
would be capable of repopulation. This species' method of reproduction
impedes the ability to increase distribution as establishment of new
vegetation requires considerable stability in environmental conditions
and protection from human-induced disturbances.
Based on the best available information, general physical and
biological features of the critical habitat areas include adequate
water quality, salinity levels, water transparency, and stable,
unconsolidated sediments that are free from physical disturbance. The
specific areas occupied by Johnson's seagrass are those with one or
more of the following criteria: (1) Locations with populations that
have persisted for 10 years; (2) locations with persistent flowering
populations; (3) locations at the northern and southern range limits of
the species; (4) locations with unique genetic diversity; and (5)
locations with a documented high abundance of Johnson's seagrass
compared to other areas in the species' range. Explanations for these
criteria are:
1. Persistent populations. Surveys of H. johnsonii distribution and
abundance in the Indian River Lagoon indicate that populations
fluctuate dramatically. In some areas populations disappear and re-
appear on both intra- and inter-annual time scales (Virnstein et al.,
1997). Some populations have disappeared and not returned. Since sexual
reproduction and seed dispersal are unknown, this species may rely on
vegetative fragmentation for recruitment and establishment of new
populations. Recruitment from fragmentation and migration are random
processes which do not guarantee the persistence of the species in any
one location. Perennial populations which have persisted for 10 years
exist in several locations, including Sebastian Inlet, Fort Pierce
Inlet, Jupiter Inlet, and Hobe Sound. Environmental characteristics of
these sites appear favorable to the species, while in other locations
in the lagoon, populations have disappeared. Locations where
populations have persisted have been designated as critical habitat.
2. Persistent flowering populations. The existence of male flowers
or recruitment by seed have not been documented for H. johnsonii. These
observations suggest that this species does not reproduce sexually, and
if it
[[Page 17790]]
does, it is a very rare event. Yet, large clones of mature female
plants flower prolifically at several locations, including Sebastian
Inlet, Fort Pierce Inlet, Jupiter Inlet, and Lake Worth Lagoon. The
environmental conditions at these sites appear to be suitable for
flowering, and if there are any males present, these would be likely
habitats for successful reproduction. Locations where there are
persistent flowering populations have received critical habitat
designation.
3. Northern and southern ranges of the populations. The
geographical limits of the distributional range of a species can
indicate a reduction or expansion of the species' range. Greater
adaptative stresses can occur at the limits of the species' range. If
the range extension were shrinking, the edges should be protected to
prevent further loss. In the alternative, the distribution limits may
be a point where the populations are expanding and invading new
environments. The unique phenotypic and genotypic characteristics of
these populations could be an important reservoir for characteristics
resistant to extinction and conducive to survival and growth. The
northern and southern ranges of Johnson's seagrass are defined as
Sebastian Inlet and central Biscayne Bay, respectively. Portions of
these limits to the species' range have been designated as critical
habitat for Johnson's seagrass.
4. Populations with unique genetic variability. The Boca Raton and
Boynton Beach sites have populations which are distinguished by a
higher index of genetic variation than any of the central and northern
populations examined to date. These two sites possibly represent a
genetically semi-isolated group which could be the reservoir of a large
part of the overall genetic variation found in this species.
Information is lacking on the geographic extent of this genetic
variability. Locations with populations that have unique genetic
variability have been designated as critical habitat.
5. Areas of abundance. The Lake Worth Lagoon and Palm Beach County
seagrass populations represent an abundant core of Halophila species,
including Johnson's seagrass. Previously a freshwater lake, Lake Worth
was transformed into a lagoon beginning in 1877 when an ocean inlet was
stabilized. With dredging of the ICW, shoreline development, and sewage
disposal, the lagoon was permanently altered. Presently, there are
about 2000 acres of seagrass in the lagoon covering 35 percent of the
bottom. It is estimated that between 20 and 25 percent of the seagrass
coverage is comprised of mixed assemblages of H. decipiens and H.
johnsonii. This is proportionately more Halophila coverage than occurs
elsewhere along the southeast coast of Florida. Presently, conditions
within Lake Worth Lagoon and in Palm Beach County in general appear to
be conducive to the survival of H. johnsonii. Three locations within
Lake Worth Lagoon have been designated as critical habitat. The
critical habitat area in Lake Worth Lagoon, near Bingham Island,
consists of the largest recorded contiguous patch of Johnson's
seagrass: a 30-acre meadow of Johnson's seagrass intermixed with sparse
coverage of H. decipiens and Halodule wrightii (Smith and Mezich, 1991
and 1999).
NMFS is not including in the final designation any areas outside
the species' currently known geographical range. NMFS has concluded
that, at this time, proper management of the essential features of the
areas around Sebastian and Ft. Pierce Inlet, Hobe Sound, Jupiter Inlet,
Lake Worth, Boca Raton, and northern Biscayne Bay will be sufficient to
provide for the survival and recovery of this species. NMFS may
reconsider this evaluation and propose additional areas for critical
habitat at any time. Johnson's seagrass occurs in numerous locations
throughout its range in areas outside of those currently being
designated as critical habitat. Information on genetic variability and
persistence of Johnson's seagrass is currently lacking in these areas.
Future research, however, involving genetic studies and comprehensive,
long-term field surveys, could identify additional areas that are
essential to the conservation of the species and require special
management considerations, and would, therefore, warrant designation as
critical habitat. Long-term surveys of the distribution of Johnson's
seagrass may allow further refinement of the Biscayne Bay critical
habitat area in the future. Additional areas that may be considered for
critical habitat in future rulemaking include locations between Ft.
Pierce Inlet and St. Lucie Inlet, west of the Jupiter Inlet, near the
Boynton Beach Inlet and other areas of Lake Worth Lagoon. Also, if a
male flower of Johnson's seagrass is identified in an area, this area
should be designated as critical habitat.
The regulatory description of critical habitat for Johnson's
seagrass can be found at the end of this Federal Register document.
Summary of Responses
Two public hearings were held on the proposed action: one in West
Palm Beach, Florida, on December 16, 1999, and one in Miami, Florida,
on January 31, 2000. Thirty-seven individuals provided oral testimony
at the public hearings. Forty-nine comments were submitted in response
to the proposed rule. Many comments were in support of designating
critical habitat for Johnson's seagrass. However, the majority of
comments were concerned about economic impacts from the designation.
New information and comments received in response to the proposed rule
are summarized here.
1. Economic Considerations
Many commenters believed that critical habitat designation would
create a substantial economic burden that could delay projects and
possibly prohibit certain activities, including recreational boating.
The COE commented that critical habitat would place an unnecessary
significance to these areas and an additional coordination and
consultation burden that would be costly both in terms of the project
delay and the cost directly associated with the consultation.
Additional commenters believed that the designation would impose
additional requirements or economic impacts upon small and/or private
entities beyond those which may accrue from section 7 of the ESA.
Response: The designation of critical habitat highlights
geographical areas of concern and reinforces the substantive protection
resulting from the listing itself. Incremental costs are expected to be
no greater than those which occurred at the time of listing (See
Consideration of Economic and Other Factors).
ESA section 7 applies only to Federal actions and requires Federal
agencies to ensure that any action they carry out, authorize, or fund
is not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of habitat
determined to be critical. The consultation requirements of section 7
are non-discretionary and are effective at the time of species'
listing. Therefore, Federal agencies must consult with NMFS to ensure
their actions do not jeopardize a listed species, regardless of whether
critical habitat is designated.
Most of the effect on non-Federal interests will result from the
no-jeopardy requirement of section 7 of the ESA, which is a function of
listing a species, not designating its critical habitat. Whether or not
critical habitat is designated, non-Federal interests must conduct
their actions in a manner consistent with the requirements of the ESA.
If the activity is funded, permitted, or authorized by a Federal
agency, that agency must comply with the non-jeopardy mandate of
section 7 of the ESA, which results from listing a
[[Page 17791]]
species, not from designating its critical habitat. Once critical
habitat is designated, the agency must avoid actions that destroy or
adversely modify that critical habitat. However, pursuant to NMFS' ESA
implementing regulations, in most cases any action that destroys or
adversely modifies critical habitat is also likely to jeopardize the
continued existence of the species (See the definitions in 50 CFR
402.02). Therefore, NMFS does not anticipate that the designation will
result in significant additional requirements for non-Federal
interests.
Notwithstanding its lack of economic impact, the designation of
critical habitat remains important because it identifies habitat that
is essential for the continued existence of a species and, therefore,
indicates habitat that may require special management attention. This
facilitates and enhances Federal agencies' ability to comply with
section 7 of the ESA by ensuring that they are aware when their
activities may affect listed species and habitats essential to support
them. In addition to aiding Federal agencies in determining when
consultations are required pursuant to section 7(a)(2) of the ESA,
critical habitat can aid an agency in fulfilling its broader obligation
under section 7(a)(1) to use its authority to carry out programs for
the conservation of listed species.
On September 1, 1998, NMFS completed a conference opinion (CO) with
the U.S. Army Corps of Engineers (COE) on maintenance dredging which
concluded that normal maintenance dredging activities and routine
operations on ports are not likely to jeopardize the continued
existence of Johnson's seagrass or adversely modify proposed critical
habitat. If requested by the COE, NMFS will review the CO, and, if no
significant changes have occurred in the action as planned or in the
information used during the conference, NMFS will confirm the CO as the
biological opinion on the project and no further section 7 consultation
will be necessary. NMFS expects that maintenance dredging will not be
negatively impacted by this final critical habitat designation.
2. Permitting Delays
Various commenters voiced concern that dredging projects, including
maintenance dredging, would be impaired and possibly prohibited in
these areas. Concerns were that the designation would: (a) disrupt the
COE permitting process and result in major permitting delays from the
section 7 consultation process; (b) impair Palm Beach Harbor expansion
projects and Lake Worth Lagoon clean-up efforts; (c) prevent or slow
down and make more costly, a dredging project to remove contaminated
sediments of the Miami River; (d) essentially stop the maintenance
dredging of inlets, the ICW, and many private marina facilities; and
(e) further delay and possibly impede FDOT bridge construction and
other projects due to the section 7 process.
Response: NMFS expects that normal maintenance dredging activities
and routine operations on ports will not be negatively impacted by this
critical habitat designation. The COE has already conferred with NMFS
on the proposed designation for maintenance dredging. Furthermore,
there are fewer delays in permitting because the Federal agency knows
in the planning process where designated critical habitat areas are for
the species (See Benefits of Designating Critical Habitat). The
critical habitat areas account for approximately 7 percent of the
entire range of the species, and the designation assists Federal
agencies (or those delegated to represent Federal lead agencies) in
planning future actions because the designation establishes, in
advance, those habitats that will be given special consideration in ESA
section 7 consultations. Individual permits issued by the COE are being
dealt with through the ESA section 7 process and in review by the COE's
Nationwide Permit process. These projects will be examined
programmatically by waterbody and/or project type.
As noted earlier, excluding an area from critical habitat does not
exclude it from consultation under ESA section 7, based on expected
impacts to the species. The species has been listed since September
1998, and Federal agencies have been required to confer on impacts to
this species since it was proposed for listing in 1994. The designation
would not impair or prohibit the timely and economical maintenance of
the ICW or other federally-funded projects. The requirement for a
Federal action agency to consult on actions which may affect a listed
species occurs at the time the species is listed.
3. Stop or Prohibit Projects/Activities
Many commenters believed that the outcome of critical habitat
designation and the intention of NMFS is to stop or prohibit projects
or activities. One commenter believed that NMFS seeks to ``kill the
public's recreational use of Biscayne Bay.''
Response: The designation of critical habitat does not, in and of
itself, restrict human activities within an area or mandate any
specific management or recovery action. The designation of critical
habitat helps alert public and private entities to the area's
importance, and under section 7 provisions, a critical habitat
designation requires Federal agencies to ensure that any action they
authorize, fund, or carry out is not likely to adversely modify or
destroy critical habitat. The designation assists agencies in planning
future actions. It is not the intention of NMFS to prohibit boating or
other activities in the range of Johnson's seagrass.
The designation of critical habitat allows for early consultation
and development of project alternatives. The Section ``Need For Special
Management Considerations'' provides an overview of recognized impacts
or threats to the species and its primary constituent elements (such as
water quality and substrate stability) that may require special
management considerations. Special consideration and protection for
these and other habitat features are evaluated in the ESA section 7
consultation process. Special management needs and the protection of
these habitat features are being addressed in the development and
implementation of the recovery plan.
4. Intracoastal Waterway and Maintenance Dredging
This is a subset of the concerns raised earlier. A number of
commenters felt that the inclusion of the channel of the ICW was
unnecessary for the conservation of the species and an economic burden
to maintenance dredging of the waterway and that it would impair and
probably prohibit the proper maintenance of the ICW. Similar comments
were that the proposed designation would potentially decrease or
possibly eliminate maintenance dredging of the ICW in Martin County,
substantially impacting public safety and Martin County's economy, and
that loss of ICW maintenance dredging may include total prohibition of
boating activity within the critical habitat limits.
Response: After re-evaluation of the information, feedback from
Recovery Team members with expertise in the distribution, abundance and
habitat needs for the species, and public input, NMFS has determined
that the (approximately 18.5 km) Federally marked navigation channel of
the ICW occurring in the critical habitat areas will be excluded from
critical habitat designation. NMFS has determined that the exclusion of
the channel of the ICW is possible while still allowing for
conservation of the species. The exclusion of the ICW channel occurs in
[[Page 17792]]
the following critical habitat areas: (1) An interior portion of the
Indian River Lagoon, north of the St. Lucie Inlet; (2) Hobe Sound; (3)
the site in central Lake Worth Lagoon near Bingham Island; (4) a site
in Lake Worth Lagoon, Boynton Beach; (5) a site in Lake Wyman, Boca
Raton; and (6) a portion of Biscayne Bay Aquatic Preserve.
As stated earlier, the COE requested formal conference with NMFS
when the species was proposed for listing in order to address and plan
for the maintenance dredging projects. The NMFS' CO, issued September
1, 1998, concluded that the maintenance dredging of the ICW and ports
in the range of Johnson's seagrass is not likely to jeopardize the
continued existence of the species, and is not likely to destroy or
adversely modify its proposed critical habitat. Johnson's seagrass is
known to occur in parts of the ICW, but the exclusion of the ICW
channel in the designated area will not affect NMFS' ability to review
and prohibit adverse impacts to the species. The CO contains pre-
dredging survey guidelines which provide that the number and severity
of impacts to the species be tracked over time in conjunction with
other impacts affecting the species in its range. New dredging or
expansion projects will be reviewed separately under section 7.
5. Exclusion of Other Project Types or Areas
Some commenters requested exclusion of other project types or areas
besides that of the ICW channel, including: (a) the ICW right-of-way in
addition to the channel; (b) all Florida Department of Transportation
right-of-way and Submerged Land Easements which encompass existing
bridges; (c) current docks, canals, and areas requiring dredging and
boat use; (d) public boat ramps and existing basins; (e) any access
channels and public and private maintenance of existing channels and
piers and docking facilities; (f) public navigation channels; (g) areas
adjacent to the Town of Jupiter; (h) Sealine Marina Yachting Center
basin; (i) clean-up dredging of the Miami River. One commenter
recommended exclusion of: (1) a 500-ft. (152.4 m) buffer adjacent to
all privately-owned uplands, (2) the ICW and its adjacent right-of-way,
(3) all areas within the preempted area of State submerged land leases,
easements, consents of use or other State proprietary authorizations,
(4) all marina facilities in existence at the time of listing, and (5)
all existing access channels.
Response: The ICW channel has been excluded from critical habitat
since it involves ongoing maintenance of a disturbed area. The CO
developed for these ICW and ports maintenance projects analyzed the
impacts of these activities on Johnson's seagrass. The CO did not
consider new ICW dredging or expansion projects involving deepening or
widening of the right-of-way. Because of the additional adverse impacts
these projects will have on the species and habitat, above those
considered in the CO, these projects will be considered separately in
the ESA section 7 process. With regard to other areas, the critical
habitat designation may be revised in the future as data become
available. Critical habitat designation should have no effect on
currently existing structures such as docks, marinas, and basins in
designated critical habitat unless Federal authorization is required.
NMFS would review, at that time, any proposed changes to those
structures or facilities. In Biscayne Bay, the Miami River, the Little
River, and the Oleta River are excluded from Johnson's seagrass
critical habitat beyond its mouth. Any proposed dredging projects of
this river that are authorized, funded, or carried out by a Federal
agency may be reviewed under the section 7 process for impacts to
listed species under NMFS purview.
6. Submerged Land Lease Holding
One commenter, representing a private party holding the lease to
submerged lands included in critical habitat designation, questioned
how this party would be compensated for loss of this land.
Response: The land designated as critical habitat is not a taking
of private property. A critical habitat designation does not impose any
additional burdens on private property rights than those imposed by the
species listing. A private landowner continues to be free to use his
land as he sees fit, using care that his land management does not
violate any ESA 4(d) regulations. The critical habitat designation
simply clarifies the areas within which one's activity may impact
Johnson's seagrass. The designation may affect such property if there
is a Federal action that triggers the section 7 process.
7. Biscayne Bay Comments
There were numerous comments on the size of Biscayne Bay compared
to the other areas proposed for designation in the north and central
part of its range. Some commenters supported the designation. Comments
opposed to the size of the designation included: (a) the area should
not be so big because it is highly industrialized, with heavy commerce
and recreational boating and development; (b) the area is too large as
most of it is already dredged and seawalled; (c) the size of the area
is not scientifically supported and is overreaching; and (d) the
designation will stall and frustrate the orderly expansion of
facilities to support recreation in the Bay. Those in support of the
designation believed it to be beneficial to the species where the risk
of development is great. One commenter suggested a more focused
approach in Biscayne Bay Aquatic Preserve.
Response: NMFS believes that this designation, based upon criteria
for Johnson's seagrass critical habitat, is currently appropriate and
necessary for the survival of Johnson's seagrass in its southern range.
Based on comments received, this critical habitat area was re-evaluated
by NMFS and by members of the Recovery Team.
The species, by nature, is patchily distributed. Johnson's seagrass
occurs in approximately a 2-percent abundance in comparison to all
species of seagrass throughout its range. In Biscayne Bay, a highly-
impacted system, Johnson's seagrass is not known to occur in the same
abundance or to be as widely distributed as in areas of its northern
and middle range. Larger seagrasses, predominantly Thalassia, begin to
out-compete Johnson's seagrass in this area. Eiseman and McMillan
(1980) documented Johnson's seagrass in the vicinity of Virginia Key,
Key Biscayne (Lat 25 deg.45'); this location is considered to be the
southern limit of the species range. There have been no reports of this
species further south of the currently known southern distribution.
The presence of Johnson's seagrass in northern Biscayne Bay (north
of Virginia Key) is well documented. In addition to localized surveys,
the presence of Johnson's seagrass has been documented by various field
experiences and observations of the area by Federal, state and county
entities. Johnson's seagrass has been documented in various COE and
USCG permit applications reviewed by NMFS. The Dade County Department
of Environmental Resources has mapped a general seagrass coverage of
Biscayne Bay, and a wide-range, long-term monitoring program for
Johnson's seagrass is recommended.
Development, man-made impacts, and human use of the submerged lands
in this waterbody are heavy and there is a management need to protect
critical habitat for Johnson's seagrass based on this pressure.
Protection of the northern and southern ranges of the species is
identified as a criteria essential to the protection of Johnson's
seagrass. Genetic diversity in its southern range may be
[[Page 17793]]
greater than in the north or central parts of the range and unique from
either the north or central range. The unique phenotypic and genotypic
characteristics of these populations could be an important reservoir
for characteristics resistant to extinction and conducive to survival
and growth.
The State of Florida designated Biscayne Bay as an aquatic
preserve, recognizing it as ``an exceptional area of submerged bay
lands and natural waterways tidally connected to the bay'' (Florida
Administrative Code 18-18). Concurrently, the section of Biscayne Bay
Aquatic Preserve designated as critical habitat for Johnson's seagrass
is considered by NMFS to be essential to the survival of the species.
Final critical habitat designation may be revised as new data become
available. New information, possibly through a long-term, wide-range
monitoring program and increased ground-truthing of seagrass species in
the Bay, could identify the distribution, abundance, and persistence of
Johnson's seagrass. This new information could allow NMFS, in the
future, to further refine areas in the southern end of the species'
range. The species may not occur in 100 percent of the area. However,
protection of Johnson's seagrass throughout this area is considered by
NMFS to be essential to the conservation and survival of the species.
8. Additional Areas Recommended For Critical Habitat Designation
Various parties recommended the increase in the size and/or the
addition of sites in the north and central parts of the range.
Commenters believed that the modest acreage proposed, representing only
about 7 percent of the species' range, does not fully represent the
area occupied by the respective beds over time. The following areas
were recommended for expansion: (a) Sebastian Inlet, (b) Fort Pierce
Inlet, (c) Jupiter Inlet, (d) Jupiter Sound, (e) Lake Worth/Bingham
Island, and (f) Lake Wyman.
The following new areas were recommended to be added as new
critical habitat: (a) The entire area of Indian River Lagoon, from Ft.
Pierce Inlet to St. Lucie Inlet; (b) Herman's Bay, St. Lucie County;
(c) three sites in the Loxahatchee River/Estuary; (d) a site south of
Lake Worth Inlet and Peanut Island; (e) a site at Royal Park Bridge,
Palm Beach County; (f) two sites south of Boynton Inlet; and (g)
site(s) in Broward County. A few commenters believed that the 10-year
persistence criterion eliminates significant populations from critical
habitat consideration, and that it is too strict. They recommended
reduction in the time frame to 3 years to identify a persistent
population of Johnson's seagrass.
Response: Five criteria for designating Johnson's seagrass critical
habitat were developed by the members of the recovery team (See
Critical Habitat for Johnson's seagrass). The size of the areas in the
north and central part of the species range were based on the criteria
for persistent and flowering populations and indicate the shoals of
persistent beds. These areas have been studied for 10 years and have
shown the ability to persist where other areas in the general vicinity
have not. Johnson's seagrass is patchily distributed, has rapid growth
and turnover, and migrates across the sea floor. Recruitment from
fragmentation and migration are random processes which do not guarantee
the persistence of the species in any one location. The areas
designated in Indian River Lagoon, Hobe Sound, Jupiter Inlet, and Lake
Worth Lagoon indicate populations that have persisted and flowered for
10 years despite these species characteristics. Environmental
characteristics of these sites appear favorable to the species, while
in other locations in the lagoon, populations have disappeared. Based
upon the Recovery Team recommendations, NMFS believes that 10-year
persistence is a valid criterion for designating critical habitat for
Johnson's seagrass. Refinement of these areas was possible due to the
information from permanent transects, genetic information, State of
Florida marina siting and dock shading studies, and Palm Beach County
Lake Worth Lagoon surveys.
The Lake Wyman site is a critical area for the existing genetic
variability of Johnson's seagrass found in the central part of its
range. With a re-examination and further interpretation from Florida
Fish and Wildlife Conservation Commission's (FFWCC) marina survey and
dock shading data, NMFS concurs that the proposed designation of 3.3
acres excluded the contiguous and dense beds of Johnson's seagrass
southward. As a result, NMFS has expanded the southern boundary of this
area approximately 1500 ft. (457.2 m) in order to more adequately
protect this genetic variability in the central range, particularly
from stochastic events.
Some of the recommendations to add new areas were based on reducing
the criterion for persistence from 10 years to 3 years. However, NMFS
believes, based on Recovery Team recommendations, that the 10-year time
period most accurately identifies persistent areas of Johnson's
seagrass. The Loxahatchee Estuary, just west of the Jupiter Inlet,
holds a large monotypic population of Johnson's seagrass. However,
historical survey data on the persistence of Johnson's seagrass in this
area do not currently exist. Future data on the ability of Johnson's
seagrass to persist in this euryhaline (wide range of salinity)
environment, with its extreme changes in salinity, may indicate this to
be a unique site for Johnson's seagrass. NMFS may, therefore, consider
this site as critical habitat in future rulemaking based on its unique
environmental characteristics.
Comments were made that there should be more than two areas
proposed for critical habitat designation in Lake Worth Lagoon, which
is an essential area of abundance for Halophila species. Further
analysis from FFWCC, and a re-evaluation of the data provided by Palm
Beach County and State of Florida marina siting surveys and dock
studies, support the addition of a critical habitat site in Lake Worth
Lagoon, south of Lake Worth Inlet and Peanut Island. The population of
Johnson's seagrass in this area is well-documented as an abundant,
persistent (at least 10 years) and flowering population of mixed
Halophila and monotypic Johnson's seagrass. Any additions or revisions
that may be made in the future to this final rule will go through
another proposed and final rule process with public input.
9. Protection of All Seagrasses/ecosystem
Many individuals expressed support for the designation and voiced
the need to protect all seagrasses, emphasizing the ecological benefits
(such as a nursery/spawning ground) of seagrass conservation, not only
for a single species, but for the ecosystem. Many commenters expressed
concerns about massive releases of freshwater by the COE from Lake
Okechobee and threats to the entire system from development.
Response: NMFS supports efforts and plans to conserve and manage
ecosystems and appreciates the role that the ESA can take in protecting
those species most threatened or endangered in these systems. NMFS'
authority is under the ESA in protecting listed species, and NMFS
believes that the ESA section 7 consultation process benefits the
protection of other seagrasses and the diversity of the shallow
estuarine ecosystem. NMFS appreciates the opportunity to participate in
the Lake Worth Lagoon project, Indian River Lagoon Management Plan,
Biscayne Bay initiative and the South Florida Ecosystem Restoration
Plan.
[[Page 17794]]
10. Lack of Scientific Information
A few commenters suggested that critical habitat was not
determinable and should not be designated at this time. Reasons given
included: (a) a lack of information on how the species propagates; (b)
the need for further study on habitat preferences; and (c) a lack of
essential information determining the physical and biological features
that are essential to the conservation of a given species.
Response: These factors were considered in the decision to list the
species. Essential information does exist for Johnson's seagrass, as
provided at the time of listing. The range of the species has been
delineated and there is a clear understanding of how the species grows
and propagates (Kenworthy, 1999, 1997). Since its listing, further
information in terms of genetic variability, patch dynamics,
persistence and abundance, and transplanting capabilities has been
found for Johnson's seagrass. Further studies will be valuable in
answering questions about the species' patch and population dynamics,
dispersion, and transplanting capabilities. However, NMFS believes that
sufficient and conclusive information exists at this time for the
designation of critical habitat for Johnson's seagrass.
11. Critical Habitat is Only to be Designated Where Species Physically
Occurs
Some commenters interpreted the ESA definition of ``critical
habitat'' (section 3 (5)(i); ``The specific areas within the geographic
area occupied by the species'') as meaning that critical habitat can
only be designated where the species physically occurs.
Response: A species does not have to occupy 100 percent of a
critical habitat area. This would be similar to drawing a ``box''
around a plant or animal but not providing it with its requirements for
space, population growth, normal behavior, food, or other
physiological, nutritional, and reproductive requirements (See
Definition of Critical Habitat). NMFS must focus on the primary
constituent elements within the designated areas that are essential to
the conservation of the species and that may require special management
considerations or protection, and not only the space taken up by the
species. This final rule designates ``critical habitat'', as defined by
the ESA, for Johnson's seagrass.
12. Existing Regulations
Some commenters questioned the current regulations for the
protection of seagrass habitat and whether these were not enough to
assure the protection of Johnson's seagrass.
Response: This concern was also covered at the time the species was
listed. Despite existing Federal and Florida State laws aimed to
conserve and protect seagrass habitat, there is a continued and well
documented loss of seagrass habitat in the United States. NMFS
acknowledges that many portions of the proposed critical habitat for
Johnson's seagrass overlap with other special areas, such as the Indian
River Lagoon and Biscayne Bay Aquatic Preserves. The critical habitat
designation will underscore and strengthen the protective goals of
these areas.
Changes to the Proposed Rule
Based on comments and new information received on the proposed
rule, NMFS is modifying the proposed critical habitat designation for
Johnson's seagrass as follows:
(1) Exclusion of Federal navigation channels of the ICW that occur
in critical habitat areas. This includes the following areas: (a) An
interior portion of the Indian River Lagoon, north of the St. Lucie
Inlet; (b) Hobe Sound; (c) the site in central Lake Worth Lagoon near
Bingham Island; (d) a site in Lake Worth Lagoon, Boynton Beach; (e) a
site in Lake Wyman, Boca Raton; and the portion of Biscayne Bay
designated as critical habitat.
(2) Extension of Lake Wyman critical habitat area by 1500 ft.
(457.2 m) south from the proposed area.
(3) Exclusion of the Miami River and Little River beyond their
mouths at Biscayne Bay.
Maps are provided for reference purposes to guide Federal agencies
and other interested parties in locating the general boundaries of the
critical habitat. They do not constitute the definition of the
boundaries of critical habitat. Persons must refer to the regulations
at 50 CFR 226.213 for the actual boundaries of the designated critical
habitat. Figures 1 through 9 illustrate the ten areas being designated
as critical habitat for Johnson's seagrass. These maps do not
illustrate the exclusion of the ICW channel.
References
The complete citations for the references used in this document are
available upon request (see FOR FURTHER INFORMATION CONTACT).
Classification
NMFS has determined that Environmental Assessments or an
Environmental Impact Statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared for
this critical habitat designation. See Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
NMFS is designating ten areas in the range of Johnson's seagrass as
critical habitat. This designation will not impose any additional
requirements or economic effects upon small entities beyond those which
may accrue from section 7 of the ESA. Section 7 requires Federal
agencies to ensure that any action they carry out, authorize, or fund
is not likely to jeopardize the continued existence of any listed
species or to result in the destruction or adverse modification of
critical habitat (ESA section 7(a)(2)). The consultation requirements
of section 7 are nondiscretionary and are effective at the time of
species' listing. Therefore, Federal agencies must consult with NMFS to
ensure that their actions do not jeopardize a listed species,
regardless of whether critical habitat is designated.
In the future, should NMFS determine that designation of additional
habitat areas in the species' range and/or outside the species' current
range is necessary for conservation and recovery, NMFS will analyze the
incremental costs of the action and assess its potential impacts on
small entities, as required by the Regulatory Flexibility Act.
Accordingly, the Chief Counsel for Regulation of the Department of
Commerce has certified to the Chief Counsel for Advocacy of the Small
Business Administration that the critical habitat designation would not
have a significant economic impact on a substantial number of small
entities, as described in the Regulatory Flexibility Act.
The Assistant Administrator for Fisheries, NOAA, has determined
that the designation is consistent to the maximum extent practicable
with the approved Coastal Zone Management Program of the State of
Florida. This determination has been submitted for review by the
responsible State agency under section 307 of the Coastal Zone
Management Act.
The Assistant Administrator for Fisheries, NOAA, has determined
this rule is not significant for purposes of E.O. 12866.
This final rule does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act.
In accordance with E.O. 13132, NMFS has prepared the following
federalism summary impact statement. When
[[Page 17795]]
NMFS issued a proposed rule to designate critical habitat for Johnson's
seagrass in 1994, NMFS began consulting with the State of Florida.
While the state expressed support for protection of Johnson's seagrass,
it also expressed concern over the possible economic impacts of a
critical habitat designation. NMFS understands the concerns of the
state regarding timely maintenance of state and Federal navigation
channels, ports, and inlets, and NMFS' goal is to protect the species
with minimal effects to these activities. Concerns regarding possible
economic impacts of a critical habitat designation are addressed in the
preamble to this final rule. In addition, NMFS has completed a
conference opinion with the COE on the effects of maintenance dredging
on Johnson's seagrass and its critical habitat. NMFS expects that
maintenance dredging will not be negatively impacted by this final
critical habitat designation.
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: March 30, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 226 is
amended as follows:
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation for part 226 continues to read as
follows:
Authority: 16 U.S.C. 1533.
2. Section 226.213 is added to part 226 to read as follows:
Sec. 226.213 Critical habitat for Johnson's seagrass.
Critical habitat is designated to include substrate and water in
the following ten portions of the Indian River Lagoon and Biscayne Bay
within the current range of Johnson's seagrass.
(a) A portion of the Indian River, Florida, north of Sebastian
Inlet Channel, defined by the following coordinates:
Northwest corner: 27 deg.51'15.03"N, 80 deg.27'55.49"W
Northeast corner: 27 deg.51'16.57"N, 80 deg.27'53.05"W
Southwest corner: 27 deg.51'08.85"N, 80 deg.27'50.48"W
Southeast corner: 27 deg.51'11.58"N, 80 deg.27'47.35"W
(b) A portion of the Indian River, Florida, south of the Sebastian
Inlet Channel, defined by the following coordinates:
Northwest corner: 27 deg.51'01.32"N, 80 deg.27'46.10"W
Northeast corner: 27 deg.51'02.69"N, 80 deg.27'45.27"W
Southwest corner: 27 deg.50'59.08"N, 80 deg.27'41.84"W
Southeast corner: 27 deg.51'01.07"N, 80 deg.27'40.50"W
(c) A portion of the Indian River Lagoon in the vicinity of the
Fort Pierce Inlet. This site is located on the north side of the
entrance channel just west of a small mangrove vegetated island where
the main entrance channel bifurcates to the north. The area is defined
by the following coordinates:
Northwest corner: 27 deg.28'06.00"N, 80 deg.18'48.89"W
Northeast corner: 27 deg.28'04.43"N, 80 deg.18'42.25"W
Southwest corner: 27 deg.28'02.86"N, 80 deg.18'49.06"W
Southeast corner: 27 deg.28'01.46"N, 80 deg.18'42.42"W
(d) A portion of the Indian River Lagoon, Florida, north of the St.
Lucie Inlet, from South Nettles Island to the Florida Oceanographic
Institute, defined by the following coordinates and excluding the
Federally-marked navigation channel of the Intracoastal Waterway (ICW):
Northwest corner: 27 deg.16'44.04"N, 80 deg.14'00.00"W
Northeast corner: 27 deg.16'44.04"N, 80 deg.12'51.33"W
Southwest corner: 27 deg.12'49.70"N, 80 deg.11'46.80"W
Southeast corner: 27 deg.12'49.70"N, 80 deg.11'02.50"W
(e) Hobe Sound beginning at State Road 708 (27 deg.03'49.90"N,
80 deg.07'20.57"W) and extending south to 27 deg.00'00.00"N,
80 deg.05'32.54"W and excluding the federally-marked navigation channel
of the ICW.
(f) Jupiter Inlet at a site located just west of the entrance to
Zeek's Marina on the south side of Jupiter Inlet and defined by the
following coordinates (note a south central point was included to
better define the shape of the southern boundary):
Northwest corner: 26 deg.56'43.34"N, 80 deg.04'47.84"W
Northeast corner: 26 deg.56'40.93"N, 80 deg.04'42.61"W
Southwest corner: 26 deg.56'40.73"N, 80 deg.04'48.65"W
South central point: 26 deg.56'38.11"N, 80 deg.04'45.83"W
Southeast corner: 26 deg.56'38.31"N, 80 deg.04'42.41"W
(g) A portion of Lake Worth, Florida, just north of Bingham Island
defined by the following coordinates and excluding the Federally-marked
navigation channel of the ICW:
Northwest corner: 26 deg.40'44.00"N, 80 deg.02'39.00"W
Northeast corner: 26 deg.40'40.00"N, 80 deg.02'34.00"W
Southwest corner: 26 deg.40'32.00"N, 80 deg.02'44.00"W
Southeast corner: 26 deg.40'33.00"N, 80 deg.02'35.00"W
(h) A portion of Lake Worth Lagoon, Florida, located just north of
the Boynton Inlet, on the west side of the ICW, defined by the
following coordinates and excluding the Federally-marked navigation
channel of the ICW:
Northwest corner: 26 deg.33'28.00"N, 80 deg.02'54.00"W
Northeast corner: 26 deg.33'30.00"N, 80 deg.03'04.00"W
Southwest corner: 26 deg.32'50.00"N, 80 deg.03'11.00"W
Southeast corner: 26 deg.32'50.00"N, 80 deg.02'58.00"W
(i) A portion of northeast Lake Wyman, Boca Raton, Florida, defined
by the following coordinates and excluding the Federally-marked
navigation channel of the ICW:
Northwest corner: 26 deg.22'27.00"N, 80 deg.04'23.00"W
Northeast corner: 26 deg.22'27.00"N, 80 deg.04'18.00"W
Southwest corner: 26 deg.22'05.00"N, 80 deg.04'16.00"W
Southeast corner: 26 deg.22'05.00"N, 80 deg.04'18.00"W
(j) A portion of Northern Biscayne Bay, Florida, defined by the
following: The northern boundary of Biscayne Bay Aquatic Preserve, NE
163rd Street, and including all parts of the Biscayne Bay Aquatics
Preserve as defined in 18-18.002 of the Florida Administrative Code
(F.A.C.) excluding the Oleta River, Miami River and Little River beyond
their mouths, the federally-marked navigation channel of the ICW, and
all existing federally authorized navigation channels, basins, and
berths at the Port of Miami to the currently documented southernmost
range of Johnson's seagrass, Central Key Biscayne (25 deg.45'N).
BILLING CODE 3510-22-F
[[Page 17796]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.000
[[Page 17797]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.001
[[Page 17798]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.002
[[Page 17799]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.003
[[Page 17800]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.004
[[Page 17801]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.005
[[Page 17802]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.006
[[Page 17803]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.007
[[Page 17804]]
[GRAPHIC] [TIFF OMITTED] TR05AP00.008
[FR Doc. 00-8394 Filed 4-4-00; 8:45 am]
BILLING CODE 3510-22-C