[Federal Register Volume 66, Number 162 (Tuesday, August 21, 2001)]
[Notices]
[Pages 43885-43896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21069]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Interim Strategy on Section 7 Consultations under the Endangered
Species Act for Watercraft Access Projects in Florida That May
Indirectly Affect the Florida Manatee
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final interim strategy document.
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SUMMARY: We, the Fish and Wildlife Service (Service), announce the
final interim strategy to comply with the provisions of the Endangered
Species Act of 1973, as amended (ESA), on actions resulting in
increased watercraft access in Florida. This final interim strategy
represents our guidance regarding conservation measures that should be
incorporated into watercraft access facility designs in order that, in
some cases, projects would not likely cause incidental take of the
Florida manatee (Trichechus manatus). This final interim strategy
document does not address all of the ways in which a watercraft access
project could have indirect effects which constitute an incidental take
of manatees as defined by the ESA and Marine Mammal Protection Act
(MMPA). Instead, this final interim strategy document focuses on one
particular form of potential incidental take--the increased likelihood
of manatee mortalities and injuries as a result of collisions with
watercraft.
We believe that increased manatee speed zone enforcement is the
primary conservation measure through which proposed projects could
reduce the incidental take associated with watercraft collisions to an
unlikely to occur level. Since publication of the draft interim
strategy, we have become aware that the State of Florida has refocused
its existing law enforcement efforts, as well as deployed additional
law enforcement officers specifically to enforce manatee protection
laws. The State's law enforcement initiative will result in a more
effective means to address the indirect effects of watercraft access
development on manatees. We, therefore, have modified the draft interim
strategy to eliminate the contribution because the State has come
forward with an initiative that resolves law enforcement issues in
manatee waters and we have determined that the contribution portion of
the interim strategy is no longer necessary. As appropriate, we
considered and incorporated comments received during
[[Page 43886]]
the public review period in order to finalize the interim strategy.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in preparation of this document, will be available
for public inspection, by appointment, during normal business hours at
the South Florida Ecological Services Office, 1339 20th Street, Vero
Beach, Florida 32960.
FOR FURTHER INFORMATION CONTACT: Kalani Cairns, telephone 561/562-3909
extension 240, facsimile 561/562-4288, or electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Background
A coalition of environmental and animal rights groups sued us and
the U.S. Army Corps of Engineers (Corps)in January 2000. This lawsuit
claimed that we were not fulfilling our obligations to protect the
endangered Florida manatee under the ESA and the Marine Mammal
Protection Act (MMPA). Settlement of the Save the Manatee Club et al v.
Ballard case in January 2001 avoided unnecessary litigation. In the
settlement, we agreed to a general time line for accomplishing specific
tasks including publishing a revised manatee recovery plan; completing
a review of and publishing our decision regarding federal designation
of manatee protection areas; developing and publishing Incidental Take
Regulations pursuant to the MMPA; and addressing shortfalls in law
enforcement.
On March 14, 2001, we announced the availability of a draft interim
strategy to comply with the provisions of the ESA on actions resulting
in increased watercraft access in Florida (66 FR 14924). This draft
interim strategy represented our guidance regarding conservation
measures that could be incorporated into watercraft access facility
designs such that, in some cases, projects would not likely cause
incidental take of the Florida manatee. We called this document an
``interim'' strategy because it was designed to provide guidance
relating to the indirect effects of watercraft access development on
manatees only during the time period while incidental take regulations
under the MMPA were being promulgated.
The draft interim strategy was not designed as a means to allow
projects to circumvent formal consultation under section 7 of the ESA,
which is required whenever a project is likely to adversely affect a
federally-listed species or its critical habitat. We will continue to
fulfill our section 7 consultation responsibilities regarding the
Florida manatee. All determinations made during informal and formal
consultation will be made in accordance with the ESA, our regulations
implementing section 7 (50 CFR part 402), and our March 1998 Endangered
Species Consultation Handbook.
The draft interim strategy document reflected our findings on the
conditions under which we could conclude that a proposed watercraft
access facility is unlikely to cause a ``take'' of manatees, as defined
in the ESA Sec. 3(18) and 50 CFR 17.3. It also included measures that
an individual seeking permission to build a watercraft access facility
could incorporate into the design of a project in order to reduce the
likelihood of incidental take to a level of not likely to occur.
The draft interim strategy document did not authorize incidental
take of manatees. Incidental take of manatees without authorization is
unlawful and such authorization cannot occur until and unless we issue
appropriate regulations under the MMPA. It is also important to stress
that the draft interim strategy document did not address all of the
ways in which a watercraft access project could have indirect effects
which constitute an incidental take of manatees as defined by the ESA
and MMPA. However, we must consider, as with all consultations, other
direct and indirect effects to the manatee and its habitat, such as sea
grasses.
ESA regulations require the Federal action agency to submit a
description of the effects of the action on the listed species and/or
its habitat and an analysis of any cumulative effects, a thorough
analysis of the effects of the proposed action on manatees, manatee
habitat, and manatee critical habitat.
Instead, the draft interim strategy document focused on one
particular form of potential incidental take, that is, the increased
likelihood of manatee mortalities and injuries as a result of
collisions with watercraft. Watercraft-related mortality is the number
one cause of human-related manatee deaths. Adult survival rates are one
of the key criteria we consider in gauging success of our recovery
efforts, and we believe that an increased presence of on-the-water
speed zone enforcement is the most effective means to significantly
impact overall adult manatee survival rates.
Previous Federal Action
On March 14, 2001, we published in the Federal Register (66 FR
14924) a notice of availability of a draft interim strategy on section
7 consultations under the ESA for watercraft access projects in Florida
that may indirectly affect the Florida manatee. In addition, we held
eight public meetings throughout Florida in the following locations--
Miami on April 16, 2001; Fort Myers on April 17; St. Petersburg on
April 18; Marco Island on April 19; Jacksonville on April 23; Daytona
Beach on April 24; Melbourne on April 25; and West Palm Beach on April
26. The comment period closed on May 14, 2001.
In the Federal Register notice, we requested information, views,
and opinions from the public related to this draft interim strategy,
the supporting analyses, and proposed implementation. We contacted
State and Federal agencies, Tribes, county governments, scientific
organizations, and other interested parties and invited them to
comment. In addition, we published notices announcing the public
meetings and inviting public comments in the following newspapers--
Bradenton Herald, Charlotte Sun Herald, The Citizen (Key West), Citrus
County Chronicle, Florida Today (Brevard County), Florida Times-Union
(Jacksonville), Fort Pierce Tribune, Miami Herald, Naples Daily News,
News Herald (Panama City), News Journal (Daytona Beach), News-Press
(Fort Myers), Orlando Sentinel, Palatka Daily News, Palm Beach Daily
Business Review, Palm Beach Daily News, Palm Beach Post, Press Journal
(Vero Beach), Sarasota Herald-Tribune, South Florida Sun-Sentinel (Ft.
Lauderdale), St. Augustine Record, St. Petersburg Times, Stuart News,
Tallahassee Democrat, and the Tampa Tribune.
Summary of Comments and Recommendations
We received approximately 2,000 written and oral comments pertinent
to the draft interim strategy from elected officials, individuals,
government agencies, private industries, and organizations. In general,
public comment on the draft interim strategy was supportive of the law
enforcement concept, but was not supportive of the process.
Following is a summary of the comments received. Comments of a
similar nature have been grouped together.
Comment 1: The Florida Fish and Wildlife Conservation Commission
(Commission) and other commenters were concerned that the draft interim
strategy would not be effective in counties where comprehensive manatee
speed zones are not yet established and that the draft interim strategy
does not provide alternatives for applicants if additional speed zones
cannot be established.
[[Page 43887]]
Response: We recognize that some counties do not have established
manatee speed zones. In developing the draft interim strategy, we
assessed regional manatee populations, manatee ecology, and watercraft-
related manatee mortality to determine relative risk of watercraft-
related manatee losses and have delineated three relative risk areas
throughout Florida. We defined these risk areas (= counties) as high
(averaged one or more watercraft-related manatee mortalities per year
during the past ten years); medium (averaged less than one, but more
than zero, watercraft-related manatee mortality per year during the
same time period); and low (no documented watercraft-related
mortality). In addition to these risk areas, we have developed a reach-
by-reach analysis, outlined in the response to Comment 4, in evaluating
a watercraft access project's effects on manatees.
Of the 14 Florida counties totally within high risk manatee areas,
four counties currently have either no speed zones or only site-
specific speed zones. Within these counties, where speed zones are
currently lacking or inadequate, it must be shown that appropriate
speed zones are in place in the areas anticipated to be affected by a
project, speed zone signage is adequate throughout these areas, and
that adequate levels of speed zone enforcement will occur throughout
these areas before we can determine that a proposed watercraft access
facility is unlikely to cause incidental take of manatees.
These types of determinations will need to be made on a case-by-
case basis, that is, based on the specific circumstances and
conservation needs present in the area. If it is determined that the
existing speed zones are not adequate to reduce incidental take to an
unlikely to occur level or that the speed zones will not be adequately
enforced even with conservation measures incorporated into the project
design, we would not be able to conclude that the project is not likely
to incidentally take manatees through watercraft collisions.
Of the 15 counties in medium risk areas only, nine have countywide
or site-specific speed zones. The remaining six medium risk counties
have no enforceable speed zones. As with high risk counties, we will
make case-by-case determinations as to whether a project is likely to
contribute to the incidental take of manatees through watercraft
collisions, in light of manatee mortality history and trends in the
area, as well as any conservation measures incorporated into the
project's design. In those areas where speed reduction is necessary yet
no speed zones currently exist and/or speed zones will not be
sufficiently enforced to render watercraft collisions in the affected
area unlikely to occur (despite any conservation measures incorporated
into the project's design), we believe that we would not be able to
concur with a determination that the project is not likely to adversely
affect manatees.
Comment 2: The Commission and other commenters were also concerned
that the draft interim strategy does not consider land use decisions,
local Manatee Protection Plans, or other state or local conservation
laws as solutions to reducing watercraft-related manatee mortality.
Response: We consider land use decisions the responsibility of
local governments and not the Federal government. Although we do
consider land use decisions, local Manatee Protection Plans, and other
state or local conservation laws, in the section 7 process in
evaluating a watercraft access project's effects on manatees, these
local land planning tools may or may not affect the final outcome of a
biological rationale presented in a Service concurrence letter or
biological opinion. While land use decisions are not the responsibility
of the Federal government, we recognize the right of local and State
governments to be more restrictive in imposing measures for manatee
conservation, and recommend that proposed projects comply with such
measures. The draft interim strategy provided a way to guide projects
to include offsetting measures, specifically increased law enforcement,
that applicants could use to reduce the likelihood of incidental take
of manatees. Instead of concentrating on local decisions and law, the
focus of the draft interim strategy was on appropriately located
manatee speed zones that are adequately posted, coupled with sufficient
levels of law enforcement in place before the project moved forward.
Comment 3: The Commission and other commenters believe the draft
interim strategy encourages a piecemeal approach to establishing and
posting manatee speed zones based on the needs of a single project
rather than on an ecosystem level.
Response: Contrary to a piecemeal approach, we viewed the draft
interim strategy as a statewide approach to evaluating the potential
effects of new watercraft access projects on manatees and their
habitat. The draft interim strategy did not authorize incidental take
of manatees and incidental take is unlawful without authorization and
such authorization cannot occur without appropriate regulations under
MMPA. The draft interim strategy provided conservation measures,
primarily increased manatee speed zone enforcement statewide, to ensure
that the incidental take of manatees associated with new watercraft
access facilities was reduced to an unlikely to occur level. In
addition, the draft interim strategy established four prerequisites
(adequate speed zone designations, signage, and on-the-water
enforcement, including the requirement that such measures be in place
prior to project implementation) which must be evaluated prior to
concluding that incidental take was unlikely to occur.
Multi-slip projects are evaluated on a case-by-case basis in medium
and high risk counties to determine whether a proposed watercraft
project is likely to result in the incidental take of manatees or
whether specific conditions in the project area as well as measures
incorporated into the project's design are such that we can reasonably
conclude that the project is not likely to result in the incidental
take of manatees.
Overall, we believe that the State and other law enforcement
initiatives as well as the continuing analysis (as new information
becomes available) to evaluate the adequacy of manatee speed zones will
result in an effective statewide means to address the indirect effects
referenced by the draft interim strategy on manatees on a landscape-
scale.
Comment 4: The Commission and other commenters stated that the
draft interim strategy does not identify a method or criteria for
determining the adequacy of a speed zone, signage, and/or enforcement.
Response: While the draft interim strategy does not set forth
criteria for determining the adequacy of speed zone designations,
signage and/or enforcement, we do include the basis for our
determinations in our concurrence letters and biological opinions to
the Army Corps of Engineers' (Corps). In making these determinations,
we rely on the best scientific and commercial data available, including
manatee mortality data for a particular area, potential impacts to
manatee habitat such as seagrasses, information regarding boater
compliance with speed zones in the area, the anticipated beneficial
effect of any conservation measures incorporated into the project's
design, including the degree to which such measures are anticipated to
increase speed zone enforcement in the area, etc. We will continue to
rely on these and other site-specific criteria such as watercraft and
manatee travel patterns, as available, to make determinations on the
adequacy of
[[Page 43888]]
speed zones, signage and/or enforcement.
Recognizing the responsibilities and commitments by both agencies
on many overlapping issues regarding the manatee, we are currently
working with the Commission and local governments to ensure speed zone
placement, signage, and enforcement are or will be appropriate and
adequate. While manatee mortality in some areas has been high, we
expect that the State's law enforcement initiative will help reduce
incidental take as the result of watercraft collisions.
We accept this comment as a valid concern and have modified the
interim strategy to incorporate manatee speed zone criteria in the
Reach-by-Reach analysis already conducted by us as well as any new
information that becomes available during project review.
To analyze the effects of watercraft access projects on manatees,
we reviewed the baseline conditions for each of the manatee
subpopulations by county and by ``reach'' based on a combination of
information available to us including the Corps' Reach Characterization
Analysis Geographic Information System (GIS) database. We used counties
as a basic geographic analysis area because many factors important to
manatee protection are provided at the county level. Manatee Protection
Plans are produced by counties, manatee speed zones are designated by
the State with county participation or by counties on a county level,
and county sheriff's departments provide enforcement within county
boundaries. These factors make county-by-county and reach-by-reach
review the most logical and manageable way to analyze data and provide
recommended courses of action. This county-by-county and reach-by-reach
review approach provides a more holistic evaluation of speed zones than
a piecemeal project-by-project review.
To evaluate the adequacy of existing manatee speed zones throughout
Florida, we used information from the Corps' Reach Characterization
Analysis combined with the most current information available regarding
manatee use, manatee habitat, manatee mortality and harassment. The
Corps compiled existing data relevant to the evaluation of the
potential effects of watercraft access projects on manatees. The
information contained in the Reach Characterization Analysis included
manatee use data such as aerial surveys and radio telemetry; manatee
habitat characteristics such as warmwater sites, seagrass distribution,
and bathymetry; human use characteristics such as relative dock
densities, boat densities, and navigation channels; and existing
manatee protection measures (boating speed zones). Throughout Florida,
the Corps defined 80 ``reaches'' based on manatee use, manatee habitat
characteristics, and human use characteristics. The Corps compiled this
information into its GIS database.
In some areas, we feel that changes of the Corps reach boundaries
would provide a better characterization of the effects of regulated
activities on manatees, and our analysis reflects these
recommendations. We view the Reach Characterization Analysis as a
dynamic process, and will continue to recommend changes to Corps
reaches based on new information regarding manatees, boating
activities, and the interaction of manatees and boating that affect
manatees. To ensure the use of the best scientific and commercial data
available, we supplemented the Reach Characterization Analysis
information with 2000 and 2001 manatee mortality data from the Florida
Marine Research Institute, and other information such as information
from the Service's Division of Law Enforcement regarding the adequacy
of speed zone signage in certain areas.
To reduce the likelihood of incidental take associated with any new
multi-slip watercraft access projects, the Interim Strategy provides
four prerequisites, that: (1) Adequate speed zones must exist in areas
anticipated to have increased watercraft traffic as a result of the
proposed development; (2) signage is adequate to ensure that boaters
are aware of the existing speed zones; (3) enforcement in the vicinity
of the proposed development is, or with project conservation measures
will be, sufficient to prevent watercraft collisions with manatees; and
(4) these measures be in place prior to implementation of the project.
In reviewing the baseline, we looked at existing speed zones,
levels of enforcement, manatee aggregation areas, warmwater refugia,
freshwater sources, seagrass beds, and other biological factors to
determine if speed zones or levels of enforcement were sufficient to
minimize the risk of manatee mortality. We focused on manatee mortality
because this is the only form of take for which quantitative data are
available. We assume that the available information regarding
watercraft-related manatee mortality is a reliable indicator of other
forms of incidental take, including injury and harassment. In areas
where speed zones are appropriately designated and signed, increased
enforcement provided by the State's Law Enforcement Initiative and
other law enforcement efforts would improve compliance with manatee
speed zones, reducing risk of watercraft collisions with manatees. The
decrease in manatee-watercraft collisions would result in a stable or
decreasing trend in watercraft-related manatee mortality.
Speed zones are designated by the Commission under Rule and
published in the Florida Administrative Code (FAC). Types of zones
designated include motorboat no entry zones (year-round), idle speed
zones (year-round), idle speed zones (November 15 through April 30),
slow speed zones (year-round), slow speed zones (November 15 through
April 30), and maximum 25 mph/slow speed buffer zones (year-round). In
addition, some speed zones include or specifically exclude navigational
channels in the vicinity. In areas where manatee mortality has
decreased or been stable since manatee speed zones were designated,
signed, and enforced, we assumed that designation of manatee speed
zones will protect manatees as required in prerequisite 1 above.
Speed zone enforcement cannot be implemented in an area unless the
zones are well marked and the regulatory codes authorizing the zones
are also on the signs (FAC 2001). The Florida Department of
Environmental Protection (FDEP) and Florida Inland Navigational
District (FIND) or West Coast Inland Navigation District (WCIND)
provide installation and maintenance of speed zone signs. Manatee speed
zone areas are inspected annually or after storm events by FIND or
WCIND to ensure that adequate marking is present, and that no hazards
to navigation exist. In areas where FIND, WCIND, the State, and/or
counties regularly monitor and replace signs, we assumed that manatee
speed zone signage will protect manatees as required in prerequisite 2
above.
Data from the Commission's Division of Law Enforcement were used to
assess a per-slip level of current law enforcement to boater ratio in
waters within Florida in the Interim Strategy. The estimated ratio of
law enforcement officers to registered watercraft in Florida is one
enforcement officer per 1,356 watercraft. Dividing the total number of
annual work hours (2,080) by registered watercraft (1,356) yields a
current average of 1.50 hours of enforcement per registered watercraft
per year. This figure represents an index of the level of law
enforcement potentially available throughout the State and does not
reflect the total amount of law enforcement at a particular location.
Enforcement of posted speed zones may be provided by
[[Page 43889]]
the Service, the State, county sheriff's officers, city or other
municipalities, and other entities with on-the-water enforcement
capabilities such as the National Marine Sanctuaries Squad. The Coast
Guard and the Service also provide speed zone enforcement through
special task force events. We calculated the amount of law enforcement
provided by the State's Law Enforcement Initiative and the Corps'
estimated number of slips likely to be permitted by county to ensure
that an amount of enforcement per slip currently provided by all law
enforcement efforts is consistent with the Interim Strategy. The
State's Initiative results in an up-front, permanent commitment of
officers; administration is simplified and carried out by the State.
Based on our analysis, the State's Initiative will cover approximately
370,000 watercraft access projects (= boat slips) over 32 coastal
counties where manatees occur for the next ten years. On average, the
construction of approximately 5,000 slips is authorized annually in
Florida's waters. The State's Initiative provides for a significantly
higher level of on-the-water manatee protection and law enforcement
than what would be provided under our draft interim strategy. In Corps
reaches where the State's law enforcement initiative and other on-the-
water enforcement exceed the per slip enforcement in the Interim
Strategy, we assumed speed zone law enforcement will protect manatees
as required in prerequisites 3 and 4 above.
We reviewed all of the above information to evaluate speed zone
designation, signage, and enforcement currently in place for the
various reaches defined by the Corps. During our review, we located
areas where current speed zones are either non-existent or
inappropriately designated to minimize risk of manatee-watercraft
collisions as areas with increasing and/or ongoing mortality.
Additional enforcement in such areas would not decrease take to a ``not
likely to occur'' level and these were identified as ``areas with
inadequate protection.'' Implementation of additional speed zones,
signage, and/or enforcement were determined to be necessary if:
1. Manatee mortality data indicate on-going recovery of watercraft-
related mortality manatee carcasses within the reach within the last 10
years, particularly in years since speed zones and signs have been in
place with enforcement;
2. Speed zones, signage, and/or enforcement levels are not provided
to assume manatees are protected as described above; and/or
3. Available information indicate ongoing mortality and harassment
of manatees at warmwater sites.
``Areas with inadequate protection'' were examined per the above
criteria, to determine whether the deficiencies affected entire reaches
or portion of reaches in question. For example, some areas that
currently lack manatee speed zones, signage, and enforcement affect
only a portion of the Corps reach and are not located along primary
watercraft travel corridors. In such instances, we concluded that
increases in boat traffic within certain areas would adversely affect
manatees and identified that portion of the reach as an ``area with
inadequate protection.''
Conversely, other areas currently lack adequate manatee speed
zones, signage, and enforcement over entire reaches, and/or are located
along primary watercraft travel corridors. In these areas, we
reasonably assumed a high likelihood that increases in watercraft
access anywhere within the reach or reaches would increase boat
traffic, increasing risks to manatees, and designated the reach or
reaches as an ``area with inadequate protection.''
We will continue to review new multi-slip watercraft access
projects in medium and high risk counties. Additional watercraft access
projects in ``areas with inadequate protection'' may result in take of
manatees and cannot be consistent with the final Interim Strategy. We
believe that these projects would require separate review and potential
authorization for incidental take under the MMPA. Should appropriate
speed zones be created or modified to provide additional protection for
manatees, the designation of an reach or portion of a reach as an
``area with inadequate protection'' could be modified to reflect a
change in the baseline.
Comment 5: The Commission and other commenters disagreed with the
draft interim strategy, in which the Corps and/or the applicant is
required to perform the analysis on the effects of a watercraft access
project on the manatee. It was recommended by one commenter that the
Service should proactively solicit the comments and views of other
experts who do not share the project applicant's self-interest in
project approval, e.g., the Commission, Save the Manatee Club and other
conservation groups, the Marine Mammal Commission, and independent
scientists.
Response: ESA regulations require the Federal action agency to
submit a description of the effects of the action on the listed species
and/or its habitat and an analysis of any cumulative effects. The Corps
may require the applicant to provide the biological evaluation. It is
our responsibility to determine if all the information required by the
regulations has been provided by the Federal action agency and whether
the information includes the best scientific and commercial data
available.
We have worked closely with the groups stated above, as well as
other environmental and industry groups, that do not share the project
applicant's interests. We typically coordinate with state agencies in
our review of individual projects. In addition, we frequently solicit
the comments and advice of conservation organizations, state and local
governments, and other experts on broad manatee conservation issues
(e.g., recovery plan). We will not always be able to resolve issues
from such diverse groups to everyone's satisfaction. Therefore, we will
continue to obtain and consider the best scientific and commercial data
available in our reviews and evaluations.
Comment 6: Another commenter listed several concerns with the draft
interim strategy which are discussed in the following paragraphs.
A. The first concern emphasizes that incidental take of manatees
cannot occur until and unless we promulgate MMPA rules, and that the
draft interim strategy is not and cannot be a mechanism for authorizing
take. The commenter further states that the draft interim strategy must
be designed and must be implemented in a fashion which ensures that no
Corps-permitted project proceeds which may take manatees in any
fashion. The commenter agreed with the Commission that the proposed
strategy encourages piecemeal approaches to establishing and posting
speed zones based on the needs of a single development rather than
ecosystem level needs.
Response: We have addressed these concerns in our responses to
Comments 3 and 4 above.
B. The second concern is that the draft interim strategy should not
be used as a means to bypass formal consultation. The commenter states
that since adoption of the draft interim strategy, we have bypassed
formal consultation on more than 100 Corps permits, and have not
entered formal consultation on any project, and that we should abide by
the four basic prerequisites set forth in the draft interim strategy
for finding that incidental take from watercraft collisions is unlikely
to occur as a result of a particular project.
Response: The draft interim strategy was not designed to bypass
formal
[[Page 43890]]
consultation. Using the manatee key to guide its effect determinations,
the Corps has requested and we have completed consultation for a number
of watercraft access projects that incorporated conservation measures
consistent with the draft interim strategy in areas that meet the four
prerequisites. Consultation is completed informally for projects that
are ``may affect, but not likely to adversely affect'' with issuance of
the Service's concurrence letter. Each of our concurrence letters
addresses the four prerequisites which must be satisfied for us to
determine that incidental take is unlikely to occur as a result of the
project. The ultimate decision on whether a permit will be issued for a
project after consultation with the Service rests entirely with the
Corps.
In those cases when the four prerequisites cannot be met in an area
or when incorporation of conservation measures into project designs
will not reduce the potential for adverse effects including incidental
take to an unlikely to occur level, consultation cannot be completed
informally, and formal consultation will be required. We have also
addressed these concerns in our response to Comments 3 and 4 above.
C. The third concern is that we should make clear in the draft
interim strategy that we will, in every case, analyze whether a
proposed project is inconsistent with siting policies embodied in local
Manatee Protection Plans or other state and local conservation laws,
and most important, will not give concurrence on any project which is
inconsistent with any such plan or ordinance designed to protect
manatees. The commenter further states that, in areas of high manatee
mortality and injury, water access projects should not be permitted to
proceed until and unless effective ``take reduction'' strategies have
been adopted, implemented, and are producing empirical effects in terms
of actual reductions of manatee deaths and injuries.
Response: We addressed comments involving local Manatee Protection
Plans and other State or local conservation laws under Comment 2 above.
Regarding areas that support manatee concentrations coupled with high
manatee mortality, we emphasize that, in all probability, the
incorporation of conservation measures into a project design will not
reduce the likelihood of incidental take to an unlikely to occur level.
Hence, we cannot concur that the project is unlikely to result in
incidental take of manatees.
We believe that the draft interim strategy, which identified the
four prerequisites and the need for increased law enforcement to reduce
incidental take to an unlikely to occur level, was a proactive take
reduction strategy. As presented in the response to Comment 4, we
evaluated areas that are experiencing a consistently high level of
manatee mortality and injuries and identified these areas as ``Areas of
Inadequate Protection''. In some ``Areas of Inadequate Protection''
areas, where speed zone designation, signage, and/or enforcement are
inadequate, addressing one or all of these factors may result in ``take
reduction.'' In other words, the four prerequisites and the State's
increased law enforcement initiative represent what we believe is a
``take reduction strategy.'' In other ``Areas of Inadequate
Protection'', where manatee and watercraft use are consistently high,
there may be no strategies to reduce take and incidental take cannot be
evaluated under ESA until and unless special regulations are
promulgated under MMPA.
The draft interim strategy also addressed the need and provided for
continual program monitoring and evaluation, and called for changes if
the increased law enforcement was not resulting in reduced manatee-
watercraft collisions.
D. The fourth concern relates to the formula used to calculate the
amount of increased law enforcement that a new watercraft access
project will have to provide in order for the project to not likely
result in incidental take of manatees. The commenter states that there
is no scientific evidence to support the formula. The commenter further
states that the Service's approach omits, but should include
considerations of ``carrying capacity'' (the maximum number of boats
that can be permitted in any habitat used by manatees without making
adverse effects to the species inevitable, irrespective of the number
of speed zones and amount of enforcement taking place).
Response: We explained in the draft interim strategy the basis for
the formula used to calculate the amount of increased law enforcement
that a new watercraft access project would provide in the ``Determining
the amount of increased law enforcement hours necessary'' section of
the draft interim strategy. We explained that the current statewide
average of Commission officers to registered watercraft plus an
additional ten percent was the basis for the formula. The rationale was
that new watercraft access facilities must provide for the maintenance
of the current law enforcement to watercraft ratio plus ten percent in
order to assure that manatee mortality would not increase due to the
increase of new watercraft resulting in less enforcement available per
watercraft. We agree that there may be other methods to calculate
``adequate'' increased enforcement, but none have been offered. We have
encouraged any entity with such information to provide that information
and to work with the Service.
With regard to the ``[boat] carrying capacity'' issue, we do not
know of a formula to calculate the maximum number of boats that can be
permitted in any habitat used by manatees without making adverse
effects to the species inevitable, irrespective of the number of speed
zones and amount of enforcement taking place. There are currently areas
with higher watercraft and manatee use that experience lower
watercraft-related manatee mortality, and other areas with lower
watercraft and manatee use that experience higher watercraft-related
manatee mortality. We encourage individuals or organizations who have
information or have developed such a ``[boat] carrying capacity''
formula to work with the Service. We believe that watercraft operating
in a safe and legal manner in waters inhabited by manatees,
particularly in manatee speed zones, are unlikely to result in the take
of manatees. We support and encourage compliance with all local zoning
laws or Manatee Protection Plans which protect manatees.
Comment 7: Several commenters thought the draft interim strategy
applied to existing watercraft access facilities or to the replacement
or repair of existing facilities or to non-watercraft access facilities
such as fishing piers.
Response: We clarified during the public meetings and in the final
interim strategy that the draft interim strategy applied only to new
facilities that facilitate watercraft access to Florida's waters and
did not apply to existing structures or their replacement or repair.
Comment 8: Several commenters challenged the Service's involvement
with the Corps' regulatory process in permitting new watercraft access
projects.
Response: Section 7(a)(2) of the ESA states that any Federal agency
shall, in consultation with us, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of listed species or result in the destruction or adverse modification
of designated critical habitat. When the Corps processes permit
applications for watercraft access projects, they are required to
consult with us for potential effects to manatees and their habitats.
Comment 9: Several commenters asked if there were areas where the
[[Page 43891]]
Corps may not issue permits to construct new watercraft access
facilities.
Response: In addition to the reach-by-reach analysis outlined in
the response to Comment 4 above, there are consultation tools, in
particular the Corps' revised manatee key and associated maps, which
will identify areas where additional actions may be needed in order for
the Corps to issue permits for new multi-slip watercraft access
facilities. The maps are our current interpretation of the criteria
used to make a determination on the individual reaches and will be
reviewed and revised periodically. As the maps are revised, they will
be available at: http://verobeach.fws.gov/manatee_issues/interim_strategy.htm.
The manatee key identifies areas with ``In-water Construction
Windows'' and ``Areas with Inadequate Protection.'' In some of these
areas, permits may be issued with special conditions that remove the
likelihood of take of manatees. For example, a new facility proposed
within an In-Water Construction Window area could be permitted only if
construction was proposed outside of the window.
Areas with Inadequate Protection, fall into one of two categories;
designation based on a lack of one of the four prerequisites, or
designation because the prerequisites will not reduce incidental take
to an unlikely to occur level. If inadequate speed zones, signage, or
enforcement are corrected for areas designated because of a deficiency,
the Corps could initiate consultation with us. If consultation is
initiated, we will evaluate the specific conditions in an area expected
to be affected by the project, as well as the project design, in
determining whether the project is likely to result in incidental take
due to watercraft collisions. The four basic prerequisites necessary to
ensure that incidental take is unlikely to occur are: (1) Adequate
speed zones exist in the areas reasonably anticipated to have increased
watercraft traffic as a result of the project; (2) signage in these
areas is adequate to ensure that boaters are aware of speed zones; (3)
speed zone enforcement in these areas sufficient to prevent watercraft
collisions from occurring as a result of the project; and (4) these
measures must be in place prior to project implementation. If these
prerequisites are met, we may find that a new facility would be
unlikely to result in the incidental take of manatees. In areas
designated because the four prerequisites will not reduce incidental
take to an unlikely to occur level, we cannot provide an incidental
take statement to the Corps for a facility under ESA until and unless
incidental take is authorized under MMPA.
A special regulation promulgated under MMPA could authorize
incidental take that has a negligible effect on reproduction. We would
then consider this information to determine if incidental take could be
authorized under ESA in areas currently designated because the four
prerequisites will not reduce incidental take to an unlikely to occur
level. An Advance Notice of Proposed Rulemaking was published in the
Federal Register on March 12, 2001 (Volume 66, Number 48, pages 14352-
14354) advising the public we are initiating our process for developing
these Incidental Take Regulations. Public comments were requested and
received on the advance notice process at that time. There will also be
opportunity for public comment on the proposed regulations once they
are formulated and published in the Federal Register, but before they
are finalized.
If we anticipate that incidental take may occur as a result of a
project, we must determine whether or not that incidental take is
likely to jeopardize the continued existence of the species. For such
projects which we determine will not result in jeopardy or adverse
modification of critical habitat, yet in our opinion are likely to
result in the incidental take of manatees, we intend to exercise our
authority under section 7 of the ESA to issue biological opinions that
make clear that the project may contribute to incidental take of
manatees and that incidental take may not be exempted in the absence of
MMPA incidental take regulations. Subsequently, it is the Corps'
responsibility to decide whether or not to issue a permit for a
particular project.
Comment 10: Several commenters asked why the draft interim strategy
wasn't considering all forms of incidental take.
Response: In determining whether to concur with a not likely to
adversely affect determination, or in issuing a biological opinion
addressing the potential for incidental take, we must consider all
potential forms of incidental take. Watercraft-related mortality is the
most significant factor that we can effectively address at this time to
aid in manatee recovery. The purpose of the interim strategy is to
focus on the potential for manatee-watercraft collisions, but we must
and will continue to consider all other forms of potential effects to
manatees in the consultation process.
Comment 11: Several commenters felt that the draft interim strategy
was inequitable in that new watercraft access projects were responsible
for additional law enforcement rather than distributing the cost of
increased enforcement among all boaters. On this issue, a number of
commenters suggested alternatives for more equitable means of providing
increased law enforcement, such as increased vessel registration fees.
Response: We believe that increased manatee speed zone enforcement
is the primary conservation measure through which proposed projects
could reduce the incidental take associated with watercraft collisions
to an unlikely to occur level. We recognize that increased vessel
registration fees may be another way to accomplish this goal. At the
time, the draft interim strategy represented the only mechanism by
which some applicants could move forward with their projects in the
absence of incidental take regulations. However, the State has come
forward with an initiative that has significantly improved law
enforcement in manatee waters and we have determined that the
contribution portion of the interim strategy is no longer necessary.
Comment 12: Other commenters questioned whether the contributions
were sufficient to adequately fund increased law enforcement.
Response: Based on our analysis of existing levels of law
enforcement provided by the State and the amount of increased
enforcement needed to ensure that a new watercraft access project would
not likely cause the incidental take of manatees, we believe that the
contribution amount is sufficient to provide the increase in on the
water enforcement. With the State's law enforcement initiative, we have
determined that the contribution portion of the interim strategy is no
longer necessary.
Comment 13: A number of commenters stated that the draft interim
strategy was a form of extortion in that funds were required in
proposing an appropriate conservation measure as part of an applicant's
project design.
Response: We believe that the increased presence of on-the-water
enforcement is the single most effective means to accomplishing manatee
conservation. To that end, we developed two voluntary options by which
increased enforcement could be provided as part of an applicant's
project design: one option was the establishment of an agreement or
contract with a local law enforcement agency and the other option was
for applicants to contribute to the Manatee Conservation Fund. Without
either of these two options incorporated as part of a project's design,
it was our opinion
[[Page 43892]]
that the project was likely to result in the incidental take of
manatees. Because manatees are also protected by the MMPA, we cannot
exempt incidental take for manatees under ESA, until and unless
incidental take regulations are promulgated under MMPA. However, with
the State's Law Enforcement Initiative, we have determined that the
contribution portion of the interim strategy is no longer necessary.
Comment 14: Several commenters believed that the draft interim
strategy requires the preparation of an Environmental Assessment or an
Environmental Impact Statement under the National Environmental Policy
Act.
Response: This action is categorically excluded in accordance with
NEPA requirements [per 516 DM 6, Appendix 1.4(A)(3)].
Comment 15: Several commenters questioned why the draft interim
strategy was needed since the manatee population was increasing.
Response: We are pleased with this year's manatee count and see
these numbers as indicative of the success of many long-term
conservation efforts. However, collisions with watercraft continue to
impact manatees. Whether or not the manatee population grows or
declines is primarily dependent on the survival rate of adult manatees.
The interim strategy is designed to help ensure sufficient adult
survival and aid in recovery of this species. The State's Law
Enforcement Initiative will also help in reaching these goals.
Comment 16: Several commenters asked if the increase in manatee
mortality was the reason for the draft interim strategy.
Response: Watercraft-related mortality is the number one cause of
human-related deaths. The interim strategy is our guidance to any
person or organization regarding conservation measures that could be
incorporated into watercraft access facility designs such that, in some
cases, projects would not likely cause ``incidental take'' of the
manatee. The strategy is defined as an ``interim'' strategy because it
is designed to provide guidance relating to the indirect effects of
watercraft access projects on manatees only during the time period
while ``incidental take'' regulations under MMPA are being developed.
The draft interim strategy would have offered us an opportunity to
implement sound, effective risk-reduction management actions, such as
increased manatee speed zone enforcement, during the time period while
incidental take regulations under the MMPA are being promulgated. Adult
survival rates are one of the key criteria we consider in gauging
success of our recovery efforts. Increased manatee speed zone
enforcement also is expected to have a significant impact on overall
adult manatee survival rates.
Comment 17: Many commenters asked, if 25 percent of manatee
mortality is human-related, why the Service is not doing anything to
reduce the 75 percent of manatee mortality that was not human-related.
Response: We are aware that the largest percentage of manatee
deaths can be attributed to other categories such as natural or
perinatal or even undetermined causes. We also recognize that these
types of manatee mortality cannot be directly controlled by agency
actions. Indeed, included in the remaining 75 percent are deaths due to
natural causes. However, one effective approach to recover the manatee
is to control human-related mortality. See the response to Comment 18
below.
Comment 18: Several commenters asked what is the long-term strategy
for manatee conservation.
Response: We believe that manatee speed zone enforcement is the
most effective means of conserving the manatee by reducing adult
mortality. However, it is only part of the total recovery needs of the
manatee. Numerous conservation activities are ongoing to recover the
manatee, such as implementation of the recovery plan and any subsequent
modifications, development of incidental take regulations under the
MMPA, review of federally-designated manatee sanctuaries and refuges,
adjustment of speed zone locations, assessment of deregulation of power
plants as warmwater refugia, and assessment of the effectiveness of law
enforcement and public awareness efforts in decreasing or eliminating
watercraft-related manatee mortality.
State of Florida's Manatee Law Enforcement Initiative
For several months, we have coordinated with the Governor's Office
regarding the State's participation in manatee protection measures.
Governor Jeb Bush informed us in writing on May 29, 2001, that the 2001
Florida Legislature approved 25 additional law enforcement positions to
be deployed throughout those coastal counties where manatees are at a
high risk of death or injury due to human-related causes. In addition
to these new officers, Governor Bush's letter also states that 23 desk-
assigned officers will be redeployed to water patrol activities. The
Governor's letter further states that, for 2001, increased manatee
speed zone enforcement efforts by the State resulted in reversing a 3-
year trend of increasing manatee deaths due to watercraft collisions
for the same period prior to 2001. Coupled with the increase in
enforcement, the Governor and the Cabinet voted on July 25, 2000, not
to approve new or expanding marina facilities in those counties that do
not have an approved Manatee Protection Plan. The letter concluded with
the Governor requesting us to withdraw the draft interim strategy in
light of the fact that additional and adequate enforcement necessary to
protect manatees has been provided by the State of Florida.
Additional discussions with the Governor's Office indicate that the
Commission has reassigned 23 law enforcement officers and hired 25
additional officers to increase and improve enforcement of manatee
protection laws, including manatee speed zones. The Commission has also
reorganized 313 existing law enforcement officers in addition to the
increase in officers listed above to refocus a portion of their
activities toward manatee protection. Furthermore, the State has
allocated $2 million for those officers willing to work overtime, which
translates into additional hours of manatee protection. Finally, the
State is also considering adding a number of new officers for manatee
protection next year. Hence, the State proposed that we withdraw the
draft interim strategy because the increase in law enforcement that
would be provided in accordance with its implementation has been
provided for up-front by the State's Initiative.
Final Interim Strategy
Introduction
This final interim strategy represents our guidance regarding
conservation measures that should be incorporated into watercraft
access facility designs in order that, in some cases, projects would
not likely cause incidental take of the Florida manatee.
We believe that the State's Initiative removes the need for
implementation of the contributions for increased law enforcement.
Therefore, we have removed the contributions for law enforcement from
our final interim strategy. The State's Initiative results in an up-
front, permanent commitment of officers; administration is simplified
and carried out by the State. Based on our analysis, the State's
Initiative will cover approximately 370,000 watercraft access projects
(= boat slips) over 32 coastal counties where manatees occur for the
next ten years. On average, the construction of approximately 5,000
slips is authorized annually in Florida's
[[Page 43893]]
waters. The State's Initiative provides for a significantly higher
level of on-the-water manatee protection and law enforcement than what
would be provided under our draft interim strategy.
We also believe that the State's Initiative will effectively and,
under today's conditions, adequately staff manatee-inhabited waters
with the necessary allocation of enforcement officers, thereby
eliminating the need for applicants of watercraft access projects to
either establish an agreement or contract with a local law enforcement
agency or contribute to the Manatee Conservation Fund as options in
providing increased enforcement as part of their project design.
Our draft interim strategy would have resulted in incremental and
temporary implementation of increased enforcement as new watercraft
access projects were permitted. With the State's Initiative, law
enforcement will be provided up-front and on a guaranteed annual basis
versus a temporally distributed deployment of efforts under the draft
interim strategy. We believe this increased early-on deployment prior
to MMPA regulations promulgation is far superior to the phased-in
deployment that would have occurred under the draft interim strategy.
The State's Initiative will result in a more effective means to address
the indirect effects of watercraft access development on manatees.
Interim Strategy
This final interim strategy applies to any new watercraft access
activity that could result in adverse effects on manatees. Specific
manatee conservation measures proposed as part of a project must be
found to reduce to an unlikely to occur level any adverse effects
associated with increased access. Specific conservation measures
proposed for any project must be based on a biological evaluation
submitted by the applicant or the action agency. This biological
evaluation must include a description of the proposed action; a
description of manatee habitat and any manatee critical habitat
affected by the proposed action; a thorough analysis of the effects of
the proposed action on manatees, manatee habitat, and manatee critical
habitat. From this biological evaluation, individuals, local
governments, State agencies, and Federal agencies can develop
acceptable manatee conservation measures(s). Once the measures have
been developed, we can review and provide additional advice as
necessary to ensure that the proposed project will reduce the potential
for watercraft collisions to an unlikely to occur level.
The Corps will provide a copy of this final interim strategy to the
applicant for use in designing their proposed action to comply with the
provisions of the ESA. The Corps will provide a letter to us with a
complete project description, including any conservation measures, and
request that we review the proposed action for compliance with the ESA.
The specific conservation measures necessary in any given situation
will vary according to mortality risk in the area of the proposed
project.
In developing the interim strategy, we assessed regional manatee
populations, manatee ecology, and historic watercraft-related manatee
mortality to determine relative risk of watercraft-related manatee
losses and have delineated three relative risk areas throughout
Florida. After examining manatee mortality data from 1974 through 2000,
including five-year mortality increments and watercraft-related
mortality trends, we have categorized these risk areas as high, medium
and low (Table 1).
Table 1.--High, Medium, and Low Risk Areas By County in Florida
------------------------------------------------------------------------
Subpopulation County
------------------------------------------------------------------------
HIGH RISK AREA
------------------------------------------------------------------------
Atlantic............................... Duval \1\
Clay \1\
St. Johns \1\
Volusia \1\
Brevard
Indian River
Martin
Palm Beach
Broward
Miami-Dade
Monroe \2\
Southwest.............................. Collier
Lee
Charlotte
Sarasota
Manatee
Hillsborough
Northwest.............................. Citrus
------------------------------------------------------------------------
MEDIUM RISK AREA
------------------------------------------------------------------------
Upper St. Johns........................ St. Johns \1\
Putnam
Lake
Seminole
Volusia \1\
Atlantic............................... Nassau
Clay \1\
Flagler
St. Lucie
Southwest.............................. Glades
Hendry
Pinellas
Northwest.............................. Pasco
Hernando
Levy
Dixie
Taylor
Wakulla
------------------------------------------------------------------------
LOW RISK AREA
------------------------------------------------------------------------
Atlantic............................... Monroe \2\
Okeechobee
Southwest.............................. DeSoto
Northwest.............................. Jefferson
Franklin
Gulf
Bay
Walton
Okaloosa
Santa Rosa
Escambia
------------------------------------------------------------------------
\1\ In Northeast Florida, the portions of the St. Johns River north
(downstream) of a line drawn across the river at the Shands Bridge
(State Route 16) in St. Johns County are included with the high risk
area of Duval County. The J. Turner Butler (Sollee) Bridge (State
Route 202) across the Atlantic Intracoastal Waterway in southeast
Duval County is the demarcation between the high risk area to the
north of the bridge and the medium risk area to the south. The Nassau
River and its tributaries in Duval County are medium risk areas. The
coastal waterways of Volusia County (including the Tomoka River) are
in the high risk category, and the St. Johns River in Volusia, Lake
and Seminole Counties are in the medium risk category.
\2\ The area in Monroe County to the east and north of the Seven Mile
Bridge is considered a high risk region for manatees; whereas the area
west and south of the Seven Mile Bridge is considered a low risk
region for manatees.
We defined high risk (= counties) areas as those averaging one or
more watercraft-related manatee mortalities per year during the past
ten years; medium risk areas averaged less than one, but more than
zero, watercraft-related manatee mortality per year; and low risk (the
remainder of the manatee's range in the southeastern U.S.) had no
documented watercraft-related mortality.
Our final interim strategy utilizes high, medium and low risk
counties coupled with the Corps' revised manatee key and associated
maps to identify areas where the Service believes there is adequate
manatee protection. For all multi-slip projects in high and medium risk
counties, we will evaluate the specific conditions in the area expected
to be affected by the project, using a Reach-by-Reach analysis, in
determining whether the project is likely to contribute to incidental
take due to watercraft collisions. These maps identify areas or reaches
that we believe have adequate or inadequate protection. These maps
[[Page 43894]]
have been developed by us utilizing the reach by reach analysis
presented below. The maps are our current interpretation of the
criteria used to make a determination on the individual reaches and
will be reviewed and revised periodically. The current maps, and as
these maps are revised, will be available at: http://verobeach.fws.gov-manatee-issues/interim-strategy.htmor may be obtained from our
Jacksonville, Florida Field Office (telephone 904/232-2580) or our Vero
Beach, Florida Field Office (telephone 561/562-3909).
Reach By Reach Analysis
To analyze the effects of watercraft access projects on manatees,
we reviewed the baseline conditions for each of the manatee
subpopulations by county and by ``reach'' based on a combination of
information available to us including the Corps' Reach Characterization
Analysis Geographic Information System (GIS) database. We used counties
as a basic geographic analysis area because many factors important to
manatee protection are provided at the county level. Manatee Protection
Plans are produced by counties, manatee speed zones are designated by
the State with county participation or by counties on a county level,
and county sheriff's departments provide enforcement within county
boundaries. These factors make county-by-county and reach-by-reach
review the most logical and manageable way to analyze data and provide
recommended courses of action. This county-by-county and reach-by-reach
review approach provides a more holistic evaluation of speed zones than
a piecemeal project-by-project review.
To evaluate the adequacy of existing manatee speed zones throughout
Florida, we used information from the Reach Characterization Analysis
combined with the most current information available regarding manatee
use, manatee habitat, manatee mortality and harassment. The Corps
compiled existing data relevant to the evaluation of the potential
effects of watercraft access projects on manatees. The information
contained in the Reach Characterization Analysis included manatee use
data such as aerial surveys and radio telemetry; manatee habitat
characteristics such as warmwater sites, seagrass distributions, and
bathymetry; human use characteristics such as relative dock densities,
boat densities, and navigation channels; and existing manatee
protection measures (boating speed zones). Throughout Florida, the
Corps defined 80 ``reaches'' based on manatee use, manatee habitat
characteristics, and human use characteristics. The Corps compiled this
information into its GIS database.
In some areas, we feel that changes of the Corps reach boundaries
would provide a better characterization of the effects of regulated
activities on manatees, and our analysis reflects these
recommendations. We view the Reach Characterization Analysis as a
dynamic process, and will continue to recommend changes to Corps
reaches based on new information regarding manatees, boating
activities, and the interaction of manatees and boating that affect
manatees. To ensure the use of the best scientific and commercial data
available, we supplemented the Reach Characterization Analysis
information with 2000 and 2001 manatee mortality data from the Florida
Marine Research Institute, and other information such as information
from the Service's Division of Law Enforcement regarding the adequacy
of speed zone signage in certain areas.
To reduce the likelihood of incidental take associated with any new
multi-slip watercraft access projects, the Interim Strategy provides
four prerequisites, that: (1) Adequate speed zones must exist in areas
anticipated to have increased watercraft traffic as a result of the
proposed development; (2) signage is adequate to ensure that boaters
are aware of the existing speed zones; (3) enforcement in the vicinity
of the proposed development is, or with project conservation measures
will be, sufficient to prevent watercraft collisions with manatees; and
(4) these measures be in place prior to implementation of the project.
In reviewing the baseline, we looked at existing speed zones,
levels of enforcement, manatee aggregation areas, warmwater refugia,
freshwater sources, seagrass beds, and other biological factors to
determine if speed zones or levels of enforcement were sufficient to
minimize the risk of manatee mortality. We focused on manatee mortality
because this is the only form of take for which quantitative data are
available. We assume that the available information regarding
watercraft-related manatee mortality is a reliable indicator of other
forms of incidental take, including injury and harassment. In areas
where speed zones are appropriately designated and signed, increased
enforcement provided by the State's Law Enforcement Initiative and
other law enforcement efforts would improve compliance with manatee
speed zones, reducing risk of watercraft collisions with manatees. The
decrease in manatee-watercraft collisions would result in a stable or
decreasing trend in watercraft-related manatee mortality.
Speed zones are designated by the Commission under Rule and
published in the Florida Administrative Code (FAC). Types of zones
designated include motorboat no entry zones (year-round), idle speed
zones (year-round), idle speed zones (November 15 through April 30),
slow speed zones (year-round), slow speed zones (November 15 through
April 30), and maximum 25 mph/slow speed buffer zones (year-round). In
addition, some speed zones include or specifically exclude navigational
channels in the vicinity. In areas where manatee mortality has
decreased or been stable since manatee speed zones were designated,
signed, and enforced, we assumed that designation of manatee speed
zones will protect manatees as required in prerequisite 1 above.
Speed zone enforcement cannot be implemented in an area unless the
zones are well marked and the regulatory codes authorizing the zones
are also on the signs (FAC 2001). The Florida Department of
Environmental Protection (FDEP) and Florida Inland Navigational
District (FIND) or West Coast Inland Navigation District (WCIND)
provide installation and maintenance of speed zone signs. Manatee speed
zone areas are inspected annually or after storm events by FIND or
WCIND to ensure that adequate marking is present, and that no hazards
to navigation exist. In areas where FIND, WCIND, the State, and/or
counties regularly monitor and replace signs, we assumed that manatee
speed zone signage will protect manatees as required in prerequisite 2
above.
Data from the Commission's Division of Law Enforcement were used to
assess a per-slip level of current law enforcement to boater ratio in
waters within Florida in the Interim Strategy. The estimated ratio of
law enforcement officers to registered watercraft in Florida is one
enforcement officer per 1,356 watercraft. Dividing the total number of
annual work hours (2,080) by registered watercraft (1,356) yields a
current average of 1.50 hours of enforcement per registered watercraft
per year. This figure represents an index of the level of law
enforcement potentially available throughout the State and does not
reflect the total amount of law enforcement at a particular location.
Enforcement of posted speed zones may be provided by the Service, the
State, county sheriff's officers, city or other municipalities, and
other entities with on-the-water enforcement capabilities such as the
National Marine Sanctuaries Squad. The Coast Guard and the Service also
provide speed zone enforcement
[[Page 43895]]
through special task force events. We calculated the amount of law
enforcement provided by the State's Law Enforcement Initiative and the
Corps' estimated number of slips likely to be permitted by county to
ensure that an amount of enforcement per slip currently provided by all
law enforcement efforts is consistent with the Interim Strategy. The
State's Initiative results in an up-front, permanent commitment of
officers; administration is simplified and carried out by the State.
Based on our analysis, the State's Initiative will cover approximately
370,000 watercraft access projects (= boat slips) over 32 coastal
counties where manatees occur for the next ten years. On average, the
construction of approximately 5,000 slips is authorized annually in
Florida's waters. The State's Initiative provides for a significantly
higher level of on-the-water manatee protection and law enforcement
than what would be provided under our draft interim strategy. In Corps
reaches where the State's law enforcement initiative and other on-the-
water enforcement exceed the per slip enforcement in the Interim
Strategy, we assumed speed zone law enforcement will protect manatees
as required in prerequisites 3 and 4 above.
Protection Areas
We reviewed all of the above information to evaluate speed zone
designation, signage, and enforcement currently in place for the
various reaches defined by the Corps. During our review, we located
areas with adequate and inadequate protection. Areas where current
speed zones are either non-existent or inappropriately designated to
minimize risk of manatee-watercraft collisions as areas with increasing
and/or ongoing mortality. Additional enforcement in such areas would
not decrease take to a ``not likely to occur'' level and these were
identified as ``areas with inadequate protection.'' Implementation of
additional speed zones, signage, and/or enforcement were determined to
be necessary if:
1. Manatee mortality data indicate on-going recovery of watercraft-
related mortality manatee carcasses within the reach within the last 10
years, particularly in years since speed zones and signs have been in
place with enforcement;
2. Speed zones, signage, and/or enforcement levels are not provided
to assume manatees are protected as described above; and/or
3. Available information indicate ongoing mortality and harassment
of manatees at warmwater sites.
``Areas with inadequate protection'' were examined per the above
criteria, to determine whether the deficiencies affected entire reaches
or portion of reaches in question. For example, some areas that
currently lack manatee speed zones, signage, and enforcement affect
only a portion of the Corps reach and are not located along primary
watercraft travel corridors. In such instances, we concluded that
increases in boat traffic within certain areas would adversely affect
manatees and identified that portion of the reach as an ``area with
inadequate protection.''
Conversely, other areas currently lack adequate manatee speed
zones, signage, and enforcement over entire reaches, and/or are located
along primary watercraft travel corridors. In these areas, we
reasonably assumed a high likelihood that increases in watercraft
access anywhere within the reach or reaches would increase boat
traffic, increasing risks to manatees, and designated the reach or
reaches as an ``area with inadequate protection.''
Medium and High Risk Counties
We will continue to review new multi-slip watercraft access
projects in medium and high risk counties. Additional watercraft access
projects in ``areas with inadequate protection'' may result in take of
manatees and cannot be consistent with the final Interim Strategy. We
believe that these projects would require separate review and potential
authorization for incidental take under the MMPA. Should appropriate
speed zones be created or modified to provide additional protection for
manatees, the designation of an reach or portion of a reach as an
``area with inadequate protection'' could be modified to reflect a
change in the baseline.
In ``Areas with Inadequate Protection'' designated based on a lack
of one of the four prerequisites, consultation may be initiated between
the Corps and us if inadequate speed zones, signage, or enforcement are
corrected. If consultation is initiated, we will evaluate, using a
Reach-by-Reach analysis already conducted by us as well as any new
information that becomes available during project review, the specific
conditions of an area expected to be affected by the project to
determine whether the project is likely to result in incidental take.
The four basic prerequisites necessary to ensure that incidental take
is unlikely to occur are: (1) Adequate speed zones; (2) adequate
signage; (3) sufficient speed zone enforcement to prevent watercraft
collisions from occurring as a result of the project; and (4) these
measures must be in place prior to project implementation. If these
prerequisites are met, we may find that a new facility would be
unlikely to result in the incidental take of manatees. If the four
prerequisites cannot be met, we cannot reasonably conclude that the
project is unlikely to result in incidental take.
In ``Areas with Inadequate Protection'' designated because the
prerequisites will not reduce incidental take to an unlikely to occur
level, we cannot provide an incidental take statement for a facility
under ESA until and unless incidental take is authorized under MMPA
unless we determine through the review process that conditions have
changed. A special regulation promulgated under MMPA could authorize
incidental take that has a negligible effect on reproduction. We would
then consider this information to determine if incidental take could be
authorized under ESA in areas currently designated because the four
prerequisites will not reduce incidental take to an unlikely to occur
level. However, it is the Corps' responsibility to decide whether or
not to issue a permit.
Low Risk Counties
Since projects in low risk counties have no history of any
watercraft-related manatee mortality, we find that proposed projects in
these areas are unlikely to contribute to the incidental take of
manatees through watercraft collisions. As new information becomes
available, we will continue to assess whether any proposed project in
manatee habitat is likely to result in incidental take through
watercraft collisions or have any adverse effects on the species.
Single Family Docks
Single family docks (3 slips or less) were considered in the draft
interim guidance, after contribution for increased law enforcement to
reduce incidental take associated with watercraft access. In the final
interim strategy, they will be considered without a contribution, due
to the overall increase in law enforcement measures implemented by the
State's Initiative. We believe that this increased law enforcement
effort, will allow these single family projects, to go forward
provided, we continue to monitor their cumulative effects on the
manatee in all reaches using best available science and the commitment
to make future changes to this process if necessary. To facilitate this
review process, we will receive at least quarterly reports on permits
issued for watercraft access projects, including single family docks.
[[Page 43896]]
We continue to encourage the State of Florida, the Corps, and other
Federal, tribal, local, and private entities to seek incidental take
authorization for their watercraft-related activities that are likely
to cause the incidental take of manatees, as defined under the ESA and
MMPA.
Monitoring Implementation and Effectiveness of the State's
Initiative
The effectiveness of the State's law enforcement efforts will be
evaluated on a continuing basis by comparing watercraft-related manatee
mortality data in areas to previous rates of mortality. We will pay
particular attention to data from areas where law enforcement has
increased. Although review of program implementation and evaluation of
manatee mortality and injury are continuous processes, the manatee
mortality risk areas will be assessed at one-year intervals coinciding
with our review of the State's publication of annual manatee mortality
data. If we and the Commission determine at any time that these
enforcement efforts are not meeting their intended objectives, then the
agencies will coordinate their efforts to rectify the situation.
Monitoring implementation and effectiveness will determine the need to
continue, to extend the scope of, to change elements of, and/or to add
new components to the enforcement.
Author
The primary author of this document is Kalani Cairns (see ADDRESSES
section).
Authority
The authority for this action is section 7 of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)
Dated: August 9, 2001.
Thomas M. Riley,
Acting Regional Director.
[FR Doc. 01-21069 Filed 8-16-01; 2:31 pm]
BILLING CODE 4310-55-P