[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Rules and Regulations]
[Pages 45353-45378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21186]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 070717355-91122-02]
RIN 0648-AV74
Endangered and Threatened Species; Critical Habitat for the
Endangered Distinct Population Segment of Smalltooth Sawfish
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a
final rule to designate critical habitat for the U.S. distinct
population segment (DPS) of smalltooth sawfish (Pristis pectinata),
which was listed as endangered on April 1, 2003, under the Endangered
Species Act (ESA). The critical habitat consists of two units: the
Charlotte Harbor Estuary Unit, which comprises approximately 221,459
acres of coastal habitat; and the Ten Thousand Islands/Everglades Unit
(TTI/E), which comprises approximately 619,013 acres of coastal
habitat. The two units are located along the southwestern coast of
Florida between Charlotte Harbor and Florida Bay.
DATES: This rule becomes effective October 2, 2009.
ADDRESSES: The final rule, Final Regulatory Flexibility Analysis, and
Final 4(b)(2) Report used in preparation of this final rule, as well as
comments and information received, are available on the NMFS Web site
at http://www.sero.noaa.gov/, or http://www.regulations.gov, or by
contacting the National Marine Fisheries Service's Southeast Regional
Office, 263 13th Avenue, South, St. Petersburg, FL 33701.
FOR FURTHER INFORMATION CONTACT: Shelley Norton, NMFS, Southeast
Regional Office, at 727-824-5312; or Lisa Manning, NMFS, Office of
Protected Resources, at 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
Under the ESA, we are responsible for determining whether certain
species are threatened or endangered and for designating critical
habitat for such species (16 U.S.C. 1533). On April 1, 2003, we listed
the U.S. DPS of smalltooth sawfish (``the species'') as endangered (68
FR 15674). At the time of listing, we also announced that critical
habitat was not then determinable because we were completing ongoing
studies necessary for the identification of specific habitats and
environmental features important for the conservation of the species.
Subsequently, we have sponsored additional research on the species, its
habitat use, and its conservation needs. Additionally, NMFS has
developed a recovery plan (NMFS, 2009) for the species pursuant to
section 4(f) of the ESA. We have reviewed the best available scientific
data and identified specific areas in the species' occupied range on
which are located those physical and biological features essential to
the conservation of the species that may require special management
considerations or protection. We published a proposed critical habitat
designation for the smalltooth sawfish on November 20, 2008 (73 FR
70290), and requested comments by January 20, 2009. On December 9,
2008, we published a notice in the Federal Register (73 FR 74681)
announcing the dates, times, and locations of two public hearings to
receive public comments on the proposed critical habitat rule. In
addition to the Federal Register notice announcing the public hearings,
we advertised the public hearings in the local newspapers (News-Press
of Ft. Myers on December 8, 2008, and in the Naples-News on December
14, 2008). During the public comment period we received several
requests to extend the public comment period. On January 29, 2009, we
reopened the public comment period until February 13, 2009 (74 FR
5141).
The key conservation objective we have identified for the species
is the need to facilitate recruitment into the adult sawfish population
by protecting juvenile nursery areas. We determined the location of
nursery areas by applying a model developed for identifying
elasmobranch nursery areas to smalltooth sawfish encounter data.
Additionally, we determined that the habitat features essential to the
conservation of the species (also known as the essential features) are
red mangroves and shallow euryhaline habitats characterized by water
depths between the Mean High Water line and 3 ft (0.9 m) measured at
Mean Lower Low Water (MLLW). These essential features are necessary to
facilitate recruitment of juveniles into the adult population, because
they provide for predator avoidance and habitat for prey in the areas
currently being used as juvenile nursery areas. We determined these
features may require special management considerations or protection
due to human and natural impacts to the features, including
development, marine construction, and storms. We proposed designating
two specific areas that are nursery areas and contain the essential
features necessary to the species conservation. The two areas are: the
Charlotte Harbor Estuary Unit, which comprises approximately 221,459
acres (346 mi\2\) of coastal habitat; and the Ten Thousand Islands/
Everglades Unit (TTI/E), which comprises approximately 619,013 acres
(967 mi\2\) of coastal habitat. The two units are located along the
southwestern coast of Florida between Charlotte Harbor and Florida Bay.
Smalltooth Sawfish Natural History
The following discussion of the distribution, life history, and
habitat use of the U.S. DPS of smalltooth sawfish is based on the best
available commercial and scientific information, including information
provided in the Status Review (65 FR 12959; March 10, 2000) and the
Smalltooth Sawfish Recovery Plan (January 2009).
Distribution and Range
Smalltooth sawfish are tropical marine and estuarine elasmobranch
(e.g., sharks, skates, and rays) fish that are reported to have a
circumtropical distribution. The historic range of the smalltooth
sawfish in the United States extends from Texas to New York (NMFS,
2009). The U.S. region that has historically harbored the largest
number of smalltooth sawfish is south and southwest Florida from
Charlotte Harbor to the Dry Tortugas. Most historic capture records
along the Atlantic coast north of Florida are from spring and summer
months and warmer water temperatures. Most specimens captured along the
Atlantic coast north of Florida were also large (greater than 10 ft or
3 m) adults and thought to represent seasonal migrants, wanderers, or
colonizers from a core or resident population(s) to the south rather
than being resident members of a continuous, even-density population
(Bigelow and Schroeder, 1953). Historic records from Texas to the
Florida Panhandle suggest a similar spring and summer pattern of
occurrence. While less common, winter
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records from the northern Gulf of Mexico suggest a resident population,
including juveniles, may have once existed in this region.
The Status Review Team (NMFS, 2000) compiled information from all
known literature accounts, museum collection specimens, and other
records of the species. The species suffered significant population
decline and range constriction in the early to mid 1900s. Encounters
with the species outside of Florida have been rare since that time.
Since the 1990s, the distribution of smalltooth sawfish in the
United States has been restricted to peninsular Florida (Seitz and
Poulakis, 2002; Poulakis and Seitz, 2004; Simpfendorfer and Wiley,
2005a; Mote Marine Laboratory's Sawfish Encounter Database; and the
FLMNH National Sawfish Encounter Database [FLMNHNSED]). Encounter data
indicate smalltooth sawfish encounters can be found with some
regularity only in south Florida from Charlotte Harbor to Florida Bay.
A limited number of reported encounters (one in Georgia, one in
Alabama, one in Louisiana, and one in Texas) have occurred outside of
Florida since 1998.
Peninsular Florida is the main U.S. region that historically and
currently hosts the species year-round because the region provides the
appropriate climate (subtropical to tropical) and contains the habitat
types (lagoons, bays, mangroves, and nearshore reefs) suitable for the
species. Encounter data and research efforts indicate a resident,
reproducing population of smalltooth sawfish exists only in southwest
Florida (Simpfendorfer and Wiley, 2005a).
Life History
Smalltooth sawfish are approximately 31 in (80 cm) in total length
at birth and may grow to a length of 18 ft (540 cm) or greater. A
recent study by Simpfendorfer et al. (2008) suggests rapid juvenile
growth occurs during the first 2 years after birth. First year growth
is 26-33 in (65-85 cm) and second year growth is 19-27 in (48-68 cm).
Growth rates beyond 2 years are uncertain; however, the average growth
rate of captive smalltooth sawfish has been reported between 5.8 in
(13.9 cm) and 7.7 in (19.6 cm) per year. Apart from captive animals,
little is known of the species' age parameters (i.e., age-specific
growth rates, age at maturity, and maximum age). Simpfendorfer (2000)
estimated age at maturity between 10 and 20 years, and a maximum age of
30 to 60 years. Unpublished data from Mote Marine Laboratory (MML) and
NMFS indicate male smalltooth sawfish do not reach maturity until they
reach 133 in (340 cm).
No directed research on smalltooth sawfish feeding habits exists.
Reports of sawfish feeding habits suggest they subsist chiefly on small
schooling fish, such as mullets and clupeids. They are also reported to
feed on crustaceans and other bottom-dwelling organisms. Observations
of sawfish feeding behavior indicate that they attack fish by slashing
sideways through schools, and often impale the fish on their rostral
(saw) teeth (Breder, 1952). The fish are subsequently scraped off the
teeth by rubbing them on the bottom and then ingested whole. The oral
teeth of sawfish are ray-like, having flattened cusps that are better
suited to crushing or gripping.
Very little is known about the specific reproductive biology of the
smalltooth sawfish. As with all elasmobranchs, fertilization occurs
internally. The embryos of smalltooth sawfish, while still bearing the
large yolk sac, resemble adults relative to the position of their fins
and absence of the lower caudal lobe. During embryonic development, the
rostral blade is soft and flexible. The rostral teeth are also
encapsulated or enclosed in a sheath until birth. Shortly after birth,
the teeth become exposed and attain their full size, proportionate to
the size of the saw. Total length of the animal at birth is
approximately 31 in (80 cm), with the smallest free-living specimens
reported during field studies in Florida being 27-32 in (69-81 cm)
(Simpfendorfer et al., 2008). Documentation on the litter size of
smalltooth sawfish is very limited. Gravid females have been documented
carrying between 15-20 embryos; however, the source of these data is
unclear and may represent an over-estimate of litter size. Studies of
largetooth sawfish in Lake Nicaragua (Thorson, 1976) report brood sizes
of 1-13 individuals, with a mean of 7 individuals. The gestation period
for largetooth sawfish is approximately 5 months, and females likely
produce litters every second year. Although there are no such studies
on smalltooth sawfish, their similarity to the largetooth sawfish
implies that their reproductive biology may be similar. Genetic
research currently underway may assist in determining reproductive
characteristics (i.e., litter size and breeding periodicity).
No confirmed breeding sites have been identified to date since
directed research began in 1998. Research is underway to investigate
areas where adult smalltooth sawfish have been reported to congregate
along the Everglades coast to determine if breeding is occurring in the
area.
Life history information on the smalltooth sawfish has been
evaluated using a demographic approach and life history data from the
literature on smalltooth sawfish, largetooth sawfish, and similar
species. Simpfendorfer (2000) estimates intrinsic rates of natural
population increase of 0.08 to 0.13 per year and population doubling
times from 5.4 to 8.5 years. These low intrinsic rates of population
increase are associated with the life history strategy known as ``k-
selection.'' K-selected animals are usually successful at maintaining
relatively small, persistent population sizes in relatively constant
environments. Consequently, they are not able to respond effectively
(rapidly) to additional and new sources of mortality resulting from
changes in their environment. Musick (1999) and Musick et al. (2000)
noted that intrinsic rates of increase less than ten percent were low,
and such species are particularly vulnerable to excessive mortalities
and rapid population declines, after which recovery may take decades.
Thus, smalltooth sawfish populations are expected to recover slowly.
Simpfendorfer (2000) concluded that recovery was likely to take decades
or longer, depending on how effectively sawfish could be protected.
Habitat Usage
At the time of listing, very little information was known about the
habitat usage patterns of the species. The Status Review (NMFS, 2000)
and the final listing rule identified habitat loss and degradation as
the secondary cause of the species' decline. The primary reason for the
species' decline was bycatch in various commercial and recreational
fisheries.
The Status Review described sawfish habitat usage as: ``Sawfish in
general inhabit the shallow coastal waters of most warm seas throughout
the world. They are found very close to shore in muddy and sandy
bottoms, seldom descending to depths greater than 32 ft (10 m). They
are often found in sheltered bays, on shallow banks, and in estuaries
or river mouths.'' In the years since the status review, additional
research on habitat use by smalltooth sawfish has been undertaken. This
research confirmed the general characterization of habitat use for
smalltooth sawfish and revealed a more complex pattern of habitat use
than previously known, with different life history stages having
different patterns of habitat use.
A variety of methods have been used to study habitat use patterns
of smalltooth sawfish, including acoustic telemetry (Simpfendorfer,
2003),
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acoustic monitoring (Simpfendorfer, unpublished data; Poulakis,
unpublished data), public encounter databases (Seitz and Poulakis,
2002; Poulakis and Seitz, 2004; Simpfendorfer and Wiley, 2005a), and
satellite archival tagging (Simpfendorfer and Wiley, 2005b). The
majority of this research has targeted juvenile sawfish, but some
information on adult habitat use has also been obtained.
MML and the Florida Fish and Wildlife Research Institute (FWRI)
manage encounter databases containing data on sightings and captures of
smalltooth sawfish from commercial and recreational fishermen, research
efforts, and other sources (e.g., divers and boaters). These databases
provide insight into the habitat use patterns of smalltooth sawfish. To
request reporting of sightings/captures from the public, MML and FWRI
(1998-2008) have engaged in various outreach efforts. These efforts
include placing flyers at boat ramps and tackle/dive shops, media
releases, articles in fishing magazines, interviews with recreational
fishing guides and commercial fishers, Web sites, and personal contacts
with researchers. Standard questionnaires are used to collect encounter
data (water depth, location, tidal states, gear information, size of
animal, and various other physical and environmental features).
Outreach efforts were initially focused primarily in Florida but have
expanded into areas along the southeastern coasts of the United States
between Texas and North Carolina.
Based on our historic and current knowledge of where smalltooth
sawfish are encountered (coastal areas), we believe recreational
fishers who primarily fish in coastal areas represent the best source
of occurrence data for the species. Additionally, Simpfendorfer and
Wiley (2005a) analyzed the number of registered fishers in Florida by
county to see if fishing effort affects the distribution of the
encounters. No strong correlation between the distribution of fishers
and encounter locations was found. Based on Simpfendorfer and Wiley
(2005a), we believe that the encounter data are not geographically
biased.
Directed research programs conducted by FWRI, MML, FLMNH, and NMFS
are also a source of encounter data. Directed-research efforts on the
species are also primarily focused in coastal areas but are limited to
southwest Florida between Charlotte Harbor and the Florida Keys. The
sampling methodologies for the directed research efforts are not random
or stratified: Research efforts are focused in areas where sawfish have
been encountered, primarily southwest Florida. We anticipate future
sampling efforts for these and other areas will use a random-stratified
approach. Research is underway to determine habitat usage patterns,
site fidelity, movement patterns, and various genetic relationships.
Encounter and research data provide some insight into adult
smalltooth sawfish habitat usage patterns. Information on adult
smalltooth sawfish comes from encounter data, observers aboard fishing
vessels, and pop-up satellite archival tags (PAT). Data on adult male
(at least 134 in (340 cm) in length) and adult female (142 in (360 cm)
in length) smalltooth sawfish are very limited. The encounter data
suggest that adult sawfish occur from shallow coastal waters to deeper
shelf waters. Poulakis and Seitz (2004) observed that nearly half of
the encounters with adult-sized sawfish in Florida Bay and the Florida
Keys occurred in depths from 200 to 400 ft (70 to 122 m). Simpfendorfer
and Wiley (2005a) also reported encounters in deeper water off the
Florida Keys, noting that these were mostly reported during winter.
Observations on commercial longline fishing vessels and fishery
independent sampling in the Florida Straits show large sawfish in
depths of up to 130 ft (40 m) (Carlson and Burgess, unpublished data).
Seitz and Poulakis (2002) reported that one adult-sized animal,
identifiable by its broken rostrum, was captured in the same location
over a period of a month near Big Carlos Pass. This suggests that
adults may have some level of site fidelity for relatively short
periods; however, the historic occurrence of seasonal migrations along
the U.S. East Coast also suggests that adults may be more nomadic than
juveniles with their distribution controlled, at least in part, by
water temperature.
In summary, there is limited information on adult sawfish
distribution and habitat use. Adult sawfish are encountered in various
habitat types (mangrove, reef, seagrass, and coral), in varying
salinity regimes and temperatures, and at various water depths. Adults
are believed to feed on a variety of fish species and crustaceans. No
known breeding sites have been identified. Encounter data have
identified river mouths as areas where many people observe both
juvenile and adult sawfish. Seitz and Poulakis (2002) noted that many
encounters occurred at or near river mouths in southwest Florida.
Simpfendorfer and Wiley (2005b) reported a similar pattern of
distribution along the entire west coast of Florida. Along the
Everglades coastal region, Simpfendorfer and Wiley (2005b) report a
strong association of smalltooth sawfish with the Chatham, Lostmans,
Rodgers, Broad, Harney, and Shark Rivers.
Most of the research and encounter data on habitat usage of
smalltooth sawfish have been obtained on juveniles less than 79 in (200
cm) in length. Juveniles in this size class are most susceptible to
predation and starvation (Simpfendorfer, 2006). Like other species of
elasmobranchs, smalltooth sawfish appear to use nursery areas because
of the reduced numbers of predators and abundant food resources such
areas can provide (Simpfendorfer and Milward, 1993).
Much of the research on smalltooth sawfish juveniles indicates some
differences in habitat use based on the length of the animals, between
what are characterized as very small (less than 39 in (100 cm)) and
small (39-79 in (100-200) cm) juveniles. Most encounters of both very
small and small juveniles have been within 1,641 ft (500 m) of shore
(Simpfendorfer, 2006).
Very small juvenile smalltooth sawfish show high levels of site
fidelity, at least over periods of days and potentially for much longer
(Simpfendorfer, 2003; 2006). Limited acoustic tracking studies (five
animals) have shown that, at this size, sawfish will remain associated
with the same shallow mud bank over periods of several days
(Simpfendorfer, 2003). Very small juveniles spend a large portion of
their time on the same shallow mud or sand banks in water less than 1
ft (30 cm) deep. Since water levels on individual mud banks vary with
the tide, the movements of these small animals appear to be directed
toward remaining in shallow water. The mud banks are very small, and
preliminary home range size for the tracked animals is estimated to be
1,076-10,763 ft\2\ (100-1,000 m\2\) (Simpfendorfer, 2003). The longer-
term fidelity to these sites is poorly understood, and ongoing research
is expected to provide more insight into determining how much habitat
very small juveniles use on a daily basis. Simpfendorfer (2001)
concludes that shallow coastal waters represent key habitat for the
species, and in particular that waters less than 3.3 ft (1 m) may be
very important as nursery areas. The primary purpose of staying in such
shallow water is likely to avoid predators, such as bull sharks.
Additionally, these shallow waters provide warm water temperatures that
may be utilized to maximize growth rates (Simpfendorfer, 2006).
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Simpfendorfer (2001) concludes that most smalltooth sawfish (adults and
juveniles) show a preference for water temperatures greater than 17.8
[deg]C (64 [deg]F).
In addition to shallow mud banks, very small juveniles also use red
mangrove prop root habitats in southern Florida (Simpfendorfer and
Wiley, 2005a). Animals in this size class spend the vast majority of
their time in very shallow water less than 1 ft (30 cm) deep, and they
tend to move into mangrove prop roots during periods of high tide. Red
mangrove habitats also provide foraging opportunities for very small
and small juveniles, because the prop root system provides nursery
areas for various fish and crustacean species.
Small juveniles have many of the same habitat use characteristics
seen in the very small sawfish. Their association with very shallow
water (less than 1 ft (30 cm) deep) is slightly weaker, possibly
because they are better suited to predator avoidance due to their
larger size and greater experience (NMFS, 2006). They do still have a
preference for shallow water, remaining in depths mostly less than 3.3
ft (1 m). Most encounters of small juveniles also occur near red
mangroves. Site fidelity has also been studied for small juvenile
sawfish. Several sawfish, approximately 59 in (150 cm) in length and
fitted with acoustic tags, have been relocated in the same general
areas over periods of several months, suggesting a high level of site
fidelity (Simpfendorfer, 2003). The daily home range for these animals,
based on data from a few animals, appears to be much larger than that
of very small juveniles (0.386-1.93 mi\2\ or 1-5 km\2\). The recent
implementation of acoustic monitoring systems to study the longer term
site fidelity of sawfish has confirmed these observations and also
indicates that changes in environmental conditions such as salinity may
be important in driving changes in local distribution and, therefore,
habitat use patterns (Simpfendorfer, unpublished data).
Simpfendorfer and Wiley (2005) documented that no encounters
occurred within habitat in permanent freshwater areas. Many encounters
occur near river mouths or near sources of freshwater inflow, and
encounter data suggest that estuarine habitats may be an important
factor affecting the species' distribution. Simpfendorfer (2001)
suggests that smalltooth sawfish occur in river mouth areas because of
the lower salinity, submerged vegetation, or abundant prey. We analyzed
MML and FWRI encounter data from 1998-2008 for juveniles, and the data
indicate the majority of the juvenile encounters occurred within
euryhaline or estuarine waters. Euryhaline/estuarine waters are highly
productive areas that contain a variety of food sources for the
smalltooth sawfish. Mullet, clupeids, and various crustacean species
that are known food sources for the smalltooth sawfish are commonly
found in estuarine areas.
Juvenile smalltooth sawfish may require specific salinity regimes
with specific freshwater inputs, but, at this time, data on specific
salinity regime requirements for the species do not exist. Ongoing
studies of habitat use patterns of very small and small juveniles in
the Caloosahatchee River are expected to provide more insight into the
habitat used by or necessary for an individual juvenile (less than or
equal to 79 in (200 cm) in length) smalltooth sawfish. At this time,
however, there are insufficient data available to determine whether
specific salinity ranges are requirements of small juveniles.
Data on large (greater than 79 in (200 cm) in length) juvenile
smalltooth sawfish are limited, and more information is needed to
determine the habitat usage patterns and site fidelity characteristics
of this size class of smalltooth sawfish.
Summary of Comments and Responses
We requested comments on the proposed rule to designate critical
habitat for the endangered U.S. DPS of smalltooth sawfish on November
20, 2008 (73 FR 70290), and on January 29, 2009 (74 FR 5141), we
reopened the comment period until February 13, 2009. We held two public
hearings to facilitate public participation, the proposed rule was
available on our regional Web-page, and comments were accepted via
standard mail, facsimile, and through the Federal eRulemaking portal.
In addition to the proposed rule, the draft impact report required
under Section 4(b)(2) of the ESA was posted. We obtained independent
peer review on both the scientific information in the proposed rule and
on the Draft 4(b)(2) Report (NMFS, 2008).
We have considered all peer review and public comments, and those
that are responsive to the designation are addressed in this final rule
and discussed in the following summary. We have assigned public
comments to major issue categories and, where appropriate, have
combined similar comments.
Peer Review Comments
Comment 1: Two reviewers stated NMFS used the best available
information on the species and also stated the areas proposed for
designation were justified by the available data.
Comment 2: One reviewer noted the daily home range area for small
juveniles was calculated incorrectly for small juveniles. The home
range value of 1-5 km\2\ equates to 0.386-1.93 mi\2\.
Response: We corrected the home range value in our discussion in
this rule.
Comment 3: One reviewer stated that NMFS should revise the critical
habitat rule if new data identify additional nursery areas, discrete
areas used by other size classes of animals, or mating aggregations.
Response: NMFS will consider revising the critical habitat
designation if new data identify areas containing features essential
for the conservation of the species, or areas in the species'
unoccupied range that are essential for the conservation of the
species.
Comment 4: A reviewer stated that NMFS should monitor freshwater
flow regimes (salinity fluctuations, dissolved oxygen, flow rates), and
nutrients, red mangroves, and submerged aquatic vegetation in the
designated areas.
Response: NMFS is required to consult under section 7 of the ESA on
Federal actions that may affect listed species, including the
smalltooth sawfish, or their designated critical habitat. Therefore,
NMFS would consult under section 7 of the ESA on the effects from
alterations of freshwater flow regimes on the sawfish and its
designated critical habitat. Ongoing research is also investigating
habitat use and movements of juvenile sawfish in relation to salinity
regimes.
Comment 5: A reviewer stated that we should consider designating
other areas that contain the same essential features included in the
two nursery areas in southwest Florida, and specifically suggested
Tampa Bay and the Indian River Lagoon. This peer reviewer stated that
we did not appropriately consider the amount of suitable habitat that
remains outside of the proposed critical habitat areas, specifically
within Tampa Bay and the Indian River Lagoon, given that the species
may need additional nursery areas in the future for recovery.
Response: We do recognize that the sawfish may need additional
nursery areas for its recovery, that red mangroves and shallow
euryhaline habitats exist outside the designated areas, and that
smalltooth sawfish were historically common in some of those areas
(e.g., Indian River Lagoon). However, sawfish also historically appear
to have used areas that do not contain mangroves as nursery areas. The
key conservation function of the critical
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habitat designation is to facilitate recruitment into the adult
population by protecting juvenile nursery areas. Based on the best
available data and our understanding of what constitutes a nursery area
for sawfish, the areas designated as critical habitat are the only
areas that are currently nursery areas. We cannot predict with any
certainty what new nursery areas may be established by the species. If
new information identifies nursery areas outside of the designated
critical habitat, NMFS will consider revising this rule.
Comment 6: A reviewer suggested a more complete Executive Summary
in the 4(b)(2) Report that includes the conclusions of the Economic and
Other Relevant Impacts sections of the report.
Response: We have revised the Executive Summary in the Final
4(b)(2) Report to include the conclusions of all three impact sections
of the report.
Comment 7: A reviewer requested more detail on the increased
probability of recovery of listed species as a result of designating
critical habitat and requested a long-term study of the relationship
between recovery rates of listed species and critical habitat
designation.
Response: The commenter's suggestion is noted. NMFS does evaluate
the recovery progress of listed species, including submitting reports
to Congress every 2 years on the status of efforts to develop and
implement recovery plans for listed species under our purview, and on
the status of all species for which recovery plans have been developed
under section 4(f)(3)) of the ESA. Between October 1, 2006, and
September 30, 2008, of the 59 domestic endangered or threatened species
listed under the ESA, 22 (37 percent) were stabilized or improving; 17
(29 percent) were known to be declining; and 20 (34 percent) were
unknown or mixed in their status (http://www.nmfs.noaa.gov/pr/pdfs/laws/esabiennial2008.pdf). A recent study suggests listed species with
designated critical habitat for 2 or more years may be more than twice
as likely to have an improving population trend and less than half as
likely to be declining compared to listed species without designated
critical habitat (Taylor et al., 2005). Of the 59 domestic listed
species under NMFS' purview, 39 have designated critical habitat, and
16 of these species were judged to be stable or improving in the 2008
report discussed above. Most of these designations have not been in
place for 2 years or longer, and it is likely too early in the recovery
process to judge the contribution of critical habitat to the recovery
of these species. It should also be noted that though critical habitat
protects features essential to a species' conservation from destruction
or adverse modification by Federal actions, critical habitat is not
intended to be the sole activity that brings about species' recovery.
Comment 8: A reviewer asked if saving the smalltooth sawfish would
save the local fishing industry and whether the rule protects mangroves
or smalltooth sawfish.
Response: Our primary goal is to support the key conservation
objective for the species by protecting the essential features in its
nursery areas. The rule is not intended to directly protect smalltooth
sawfish from harm, but rather is intended to promote its recovery by
preventing destruction or adverse modification of the physical and
biological habitat features essential to its conservation that may
result from Federal actions. The Final 4(b)(2) Report considered, in
the analysis of other relevant impacts, that the critical habitat
designation is likely to provide additional protections to mangrove
habitat and the fisheries that depend on those habitats. The fishing
industry may, therefore, also benefit from this designation.
Public Comments
A. Comments on Providing the Public Adequate Notice on the Proposed
Rule
Comment 1: We received several comments stating we did not provide
adequate notice for public review and comment on the proposed rule.
Response: NMFS published the proposed critical habitat rule for the
smalltooth sawfish on November 20, 2008 (73 FR 70290), and requested
pubic comments by January 20, 2009. On December 9, 2008, we published a
notice in the Federal Register (73 FR 74681) announcing the dates,
times, and locations of two public hearings to receive public comments
on the proposed critical habitat rule. In addition to the Federal
Register notice announcing the public hearings, we advertised the
hearings in relevant local newspapers (News-Press of Ft. Myers on
December 8, 2008; Naples-News on December 14, 2008). During the public
comment period, NMFS received several requests to extend the public
comment period. On January 29, 2009 (74 FR 5141), NMFS extended the
public comment period to February 13, 2009. We believe the public
received adequate opportunity to review and comment on the proposed
rule.
B. Comments on the Available Data for the Designation
Comment 2: Several commenters reacted to the statements in the
proposed rule describing the incomplete information on the habitat
usage patterns of the species, particularly adults, and suggested we
have incomplete information on which to base the designation. Another
commenter suggested we should do more research on the species before we
designate critical habitat. Several commenters expressed concern about
basing the rule on data from 2003 or earlier.
Response: The ESA requires we use the best available scientific
information to support the proposed designation. It also provides that
we may take up to 1 additional year after a species is listed, if
critical habitat is not determinable at the time of listing. Beyond
that year, during which NMFS further studied the species' habitat
needs, we may not wait to designate critical habitat to conduct more
research. We used all available information sources (literature,
research data, government agencies, and public encounter data) to
identify the specific areas and the essential features. No other
sources of data on the species were identified during the public
comment period. In contrast to the lack of information on specific
habitat usage that currently precludes designation of critical habitat
areas for adult smalltooth sawfish, we believe the available
information provides a sound basis for designating nursery areas used
by juveniles as critical habitat. Finally, the rule is based on
juvenile encounter data from 1998 through the present; a NMFS staff
member misstated the applicability of the ``time of listing'' provision
in the statute at one of the public hearings--that applies to
identifying the occupied range of the species.
Comment 3: A commenter suggested we re-evaluate the critical
habitat designation in 5 years to determine the habitat needs for
adults.
Response: We have not identified adult aggregation, mating, and/or
pupping areas, and no information on historic aggregation, mating, and/
or pupping sites exists, but these aspects of the species' life history
are being investigated by researchers. If information on adult
smalltooth sawfish becomes available which suggests areas that may be
essential to the conservation of the species, we will consider revising
the critical habitat designation.
Comment 4: A commenter requested information on how the encounter
data were collected and how far the animals travel up the Cape Coral
canals.
[[Page 45358]]
Additionally, the commenter wanted to know which canals smalltooth
sawfish are using.
Response: Smalltooth sawfish encounter data from FWCC and MML's
were used to develop the proposed rule. Encounter data are reported by
the public and by researchers. Recreational and commercial fishers,
boaters, divers, and the general public report smalltooth sightings and
captures to the FWCC and MML. The encounter reports may include
information such as the date, location, size of animal, water depth,
benthic habitat in the area, the type of fishing gear used, and
photographs, etc. Information gathered by researchers is similar to
what the public reports but may include more details about the animal
and may include specific movement information for tagged animals.
Encounter data and FWCC directed research have documented smalltooth
sawfish use of multiple canals within the Cape Coral canal system; each
canal is not named thus we cannot list them specifically. Ongoing
smalltooth sawfish research conducted by the FWCC has shown that tagged
animals travel deep into the canals and may use the canals for months
at a time, making daily excursions into the Caloosahatchee River.
Existing encounter data support the usage of the Cape Coral canal
system where it is accessible to smalltooth sawfish.
Comment 5: One commenter questioned the credibility of sightings
and encounter data, reported by fishermen, as a basis for the rule.
Response: There are a number of indices of the reliability and
suitability of encounter and sightings data available for this
designation. First, the encounter reporting programs are longstanding
and the researchers involved have established trust and personal
relationships with a good portion of the fishing community involved in
reporting encounters or recommending to others that they report
encounters. MML and FWCC only include encounter reports in their
databases when the reports have met some measures of credibility, for
example, if the description of the fish is consistent with the
morphological characteristics of the species. The encounter data have
also been validated in a number of respects by scientific research
carried out by the organizations that maintain the encounter databases.
Comment 6: Several commenters stated they had never seen and/or
caught a smalltooth sawfish in some of the areas (San Carlos Bay and
southwest Florida) proposed for designation.
Response: Encounter data, which includes reports from recreational
and commercial fishers, researchers, and snorkelers, indicate the
species is encountered within San Carlos Bay and that most encounters
of juveniles occur in southwest Florida. Sawfish are highly endangered
benthic fish, and it is not surprising that even long-time local
residents have never seen one.
C. Comments on Existing Resource Protections, Regulatory Burdens, and
Rulemaking Requirements Generally
Comment 7: A commenter asked if the President's Executive Order on
Regulatory Review (74 FR 4435; January 26, 2009) would stop NMFS from
publishing the critical habitat rule.
Response: No, President Obama's Memorandum to the Heads of
Executive Departments and Agencies, dated January 20, 2009, regarding
additional administration review of rules published prior to January
21, 2009, does not apply to this rule because the timing of the
proposed and final smalltooth sawfish critical habitat rules is
mandated under a court-approved settlement agreement.
Comment 8: Several commenters stated that existing laws and
regulations, including State laws, are currently in place to protect
habitats covered by the proposed designation, and that an additional
layer of government regulation should be avoided.
Response: The commenter is correct in part. Existing laws and
regulations are in place to protect marine and estuarine habitats,
including mangroves. However, none of the laws or regulations
applicable to the habitats included in the proposed designation provide
complete protection to the habitats. In a wide variety of
circumstances, existing laws and regulations allow for destruction of
habitat, and in instances where mitigation may be required, off-site
and out-of-kind mitigation are possible outcomes. Additionally,
existing laws and regulations do not expressly require consideration of
the conservation needs of the smalltooth sawfish in determining whether
impacts to habitat are allowable or mitigations are acceptable. This
final rule will provide unique additional protections to the critical
habitat features essential to the sawfish's conservation, resulting in
project modifications where existing laws would not require such
modifications.
Comment 9: A commenter stated that we did not need to protect
habitat for the smalltooth sawfish because the Florida net ban has
eliminated deaths from bycatch.
Response: Florida voters approved a constitutional amendment
banning the usage of most types of inshore nets in 1995. The net ban is
extremely important in addressing a major threat to smalltooth sawfish,
because their saws become entangled in the nets, and fishers often
killed and/or removed the saw from captured animals. The net ban
eliminated a great deal of smalltooth sawfish bycatch; however, the
species is still caught as bycatch in several fisheries (shrimp
trawling, bottom long-line fisheries, etc.). In addition to measures to
prevent or limit take of listed species, the ESA requires NMFS to
designate areas that meet the statute's definition of critical habitat,
with discretion to consider excluding certain areas from a designation
based on specific findings about the costs and benefits of a
designation. As stated in the proposed rule, juvenile smalltooth
sawfish use highly specific nearshore areas as nursery areas for the
first several years of their lives, where vulnerable juveniles find
protection from predators and ample food resources for early stage
growth. In the areas we have identified as existing nursery areas,
juvenile sawfish need several essential physical and biological
features: red mangroves and shallow, euryhaline habitats characterized
by water depths between the Mean High Water line and 3 ft (0.9 m)
measured at Mean Lower Low Water. These features are essential to the
conservation of the species because they support the key conservation
function of facilitating recruitment of juveniles into the adult
population. This conservation objective is not accomplished by the
inshore net ban.
Comment 10: A commenter stated they are concerned about the length
of time it takes to complete section 7 consultations under the ESA,
that NMFS takes a long time to complete section 7 consultation, and
that these times will increase with designation of critical habitat.
Response: Federal agencies are currently required to consult on
actions that may affect the fish, including in the areas proposed for
designation, in order to ensure their actions are not likely to
jeopardize the continued existence of the species. Designated critical
habitat does require a second, distinct analysis of potential effects
of Federal actions: Federal agencies must ensure their actions are not
likely to destroy or adversely modify critical habitat. Our analysis of
impacts of the designation indicates that the designation will not
require consultations for categories of Federal actions that are not
already subject to consultation to avoid jeopardizing the species.
Delays can occur during the section 7 review
[[Page 45359]]
process when NMFS is lacking the pertinent information needed to
determine the effects on a species or its designated critical habitat.
NMFS does not expect delays in the section 7 consultation process if we
receive the necessary information to complete our analysis of the
effects on the species and/or designated critical habitat. We will also
work with interested Federal agencies to evaluate whether streamlined
section 7 consultation procedures can be adapted for evaluating Federal
actions that may affect the smalltooth sawfish, its designated critical
habitat, or both.
Comment 11: A commenter stated that since existing critical habitat
for the American crocodile provides protection for the smalltooth
sawfish, the proposed rule has overlapping protections and asked us how
we would deal with the overlapping protections.
Response: This is not correct. Smalltooth sawfish may use some of
the same habitats utilized by the American crocodile along the
Everglades coast, but the critical habitat designation and the listing
protections for the American crocodile are established to promote the
recovery and conservation of that species specifically. American
crocodile designated critical habitat does not protect the physical and
biological features essential for the conservation of the smalltooth
sawfish. The U.S. Fish and Wildlife Service (FWS) has jurisdiction over
the American crocodile, and NMFS has jurisdiction over the smalltooth
sawfish. NMFS and FWS will consult under section 7 of the ESA for their
respective species even though the critical habitat designation may
over-lap geographically.
D. Comments on the Critical Habitat Boundaries and Areas Included or
Omitted From the Designation
Comment 12: One commenter suggested we used arbitrary boundaries
(e.g., roads, county lines, etc.) in establishing the unit boundaries
and suggested we should instead use habitat-based boundaries (e.g.,
creeks and mangroves). The commenter also suggested we include entire
creeks and canal systems that are accessible to smalltooth sawfish near
the proposed Charlotte Harbor Estuary Unit. The commenter proposed four
specific changes in this regard: (1) The boundary located near the
Myakka River should be moved up-river where the mangroves end at
approximately 27[deg]4.500[min] N; (2) the boundary near Harborview
Road, U.S. 41, and SR 776 should include Shell Creek extending to the
dam and upriver to 27[deg]4.500[sec] N; (3) The southern extent of the
Charlotte Harbor Estuary Unit boundary should be Wiggins Pass/
Calcohatchee River instead of the Charlotte/Lee County line; and (4)
``back bay'' boundaries should include entire creek and canal systems
in the Charlotte Harbor Estuary Unit.
Response: We elected not to make the requested changes to the unit
boundaries. The boundaries were chosen by first applying the Heupel et
al. (2007) model for defining nursery areas to the juvenile sawfish
encounter data. After broad areas being used as nursery areas were
identified, the essential physical and biological features within these
nursery areas were identified. The boundaries of the critical habitat
units were identified in accordance with our regulations at 50 CFR
424.02(c), using reference points and lines on topographic maps to
describe the specific boundaries of the nursery areas. Roads, man-made
structures, and county line or park boundaries were used instead of
habitat boundaries (e.g., extent of red mangroves or entire creek
systems) because they are easily identifiable by the public and because
they represent the boundaries of the nursery areas.
Comment 13: A commenter suggested we consider expanding the
critical habitat designation to include unoccupied areas that could be
essential to the species' conservation, and noted that the species used
to be found in coastal areas as far distant from peninsular Florida as
New York and Texas.
Response: ESA section 3(5)(A)(ii) defines critical habitat to
include specific areas outside the geographical area occupied at the
time of listing if the areas are determined by the Secretary to be
essential for the conservation of the species. Regulations at 50 CFR
424.12(e) specify that we shall designate as critical habitat areas
outside the geographical area presently occupied by a species only when
a designation limited to its present range would be inadequate to
ensure the conservation of the species. Habitat-based recovery criteria
in the recovery plan suggest areas outside the current occupied range
may be important to the species' recovery. However, based on the best
available information, we cannot identify unoccupied areas that are
currently essential to the conservation of the species. If information
on essential features or habitats for the species becomes available, we
will consider revising this critical habitat designation.
Comment 14: A commenter suggested we include Estero Bay to Marco
Island in the critical habitat designation because the area contains
the essential features, and the areas are connected to the Charlotte
Harbor Estuary Unit and the Ten Thousand Islands/Everglades Unit.
Response: Areas within Estero Bay and Marco Island do contain some
of the essential features described within the proposed critical
habitat designation; however, red mangroves are much sparser and
salinity is much more fully marine than in the designated units. We
determined that this area between the designated units does not meet
the definition of a nursery area for sawfish, and that juvenile sawfish
are not likely to use the area to travel between the two designated
nursery areas. Juvenile smalltooth sawfish are rarely encountered
within these areas, and juvenile encounters in the area do not have a
higher density than the mean density outside the area. Encounter data
do not indicate juveniles repeatedly use the area over years, and no
site fidelity pattern exists in the area. If new data indicate these
areas are indeed nursery areas, we will consider revising the critical
habitat designation.
Comment 15: A commenter stated the scope of the designation is too
broad and includes habitats that are not shallow or near mangrove
roots. Two other commenters suggested the designation should be limited
to targeted areas where NMFS has documented specific use of the areas.
Response: As stated in the proposed rule, the features can be found
unevenly dispersed throughout the proposed critical habitat boundaries.
Limits on existing mapping methodologies make it infeasible to define
the specific areas more finely than described herein. Therefore, there
are locations within the critical habitat boundaries where the
essential features do not exist (e.g., deep water areas). The
regulatory impact of the critical habitat designation, however, flows
entirely from the requirement to consult on Federal actions that may
affect the critical habitat's essential features. If an action only
impacts locations which do not contain either essential feature, the
action would pose no effect to the critical habitat, and no section 7
consultation would be required. We also believe that limiting the
designation to areas where use has been documented at a specific place
and time would not be an appropriate application of the ESA. Single
encounter points would not encompass the full home ranges used by
juveniles. Moreover, the ESA requires designation of critical habitat
containing features essential to a species' conservation, and thus
contemplates inclusion of areas containing features necessary for
population growth.
[[Page 45360]]
Further, the available information on sawfish almost certainly does not
document the existence of every juvenile using the nursery areas. We
therefore disagree that the scope is too broad: the units are
appropriately defined as the areas containing (but not composed
entirely of) the essential features, and there is no regulatory impact
of including embedded locations without the essential features.
E. Comment on Essential Features
Comment 16: A commenter stated they had never seen seagrasses in
the Cape Coral canals and could not understand why NMFS identified
seagrasses as an essential component of the critical habitat.
Response: Seagrasses are not an essential feature of the critical
habitat.
F. Comments on the Draft 4(b)(2) Report and the Analysis of Economic
Impacts
Comment 17: One commenter noted an error in the Draft 4(b)(2)
Report in the estimated values for mangrove-dependent fish species for
2005.
Response: NMFS acknowledges that these calculations were
inaccurate, and they have been corrected in the Final 4(b)(2) Report.
The value in the ``Pounds'' column label was listed in 1,000s of pounds
but actually represented pounds. We removed the 1,000 from the column,
and the column now reflects the correct poundage of landings.
Additionally, the commenter noticed an error in the ``Value'' column
which also indicated the values were in thousands of dollars. We
corrected the errors in Tables 5, 7, 9, and 11 to reflect the correct
values for both ``Pounds'' and ``Value.''
Comment 18: Several commenters expressed unspecific concerns about
potential economic impacts on communities and quality of life expected
from the designation. A few commenters stated that NMFS did not address
the economic impacts on the marine construction, real estate, and
residential construction industries in the proposed rule and asked why
the economic impacts cannot be more precisely measured.
Response: The 4(b)(2) Report identifies and analyzes the expected
economic impacts, including monetary costs on marine construction
activities where feasible, associated with the proposed rule. Federal
guidance on estimating the costs and benefits of proposed rules allows
presenting economic impacts in qualitative metrics if monetization is
not feasible or reliable (EO 12866). Administrative costs to Federal
and third parties (e.g., permit applicants) expected to result from ESA
section 7 consultations required by the designation were estimated by
projecting the number of future consultations associated with the
proposed rule. Projected future costs resulting from potential project
modifications that may be required to avoid destruction or adverse
modification of the designated critical habitat cannot be determined
with any certainty given the uncertainty in, among other things,
predicting the precise location and scope of future projects. The total
incremental administrative costs for Unit 1 are estimated to range from
$1,039,500 to $1,386,000 (depending on complexity of the consultation)
over the 10-year planning period. The total incremental administrative
costs for Unit 2 are estimated to range from $108,000 to $144,000
(depending on complexity of the consultation) over the 10-year planning
period. Most of these costs will be borne by Federal agencies involved
in ESA section 7 consultation; maximum total projected administrative
costs to third parties (e.g., permit applicants) due to all 85 future
consultations are estimated to be $136,200 to $170,000 over the next 10
years. The commenters did not provide us with specific information to
determine any other potential future economic impacts from the proposed
rule. We believe the 4(b)(2) Report provides the best information on
predicting future section 7 consultation economic costs from the final
rule. We have also responded to concerns about the rule's potential to
impact specific existing activities in affected communities in the
following section.
Comment 19: One commenter stated that the analysis of potential
economic impacts to single-family dock construction/repair projects
identified in the 4(b)(2) report is inadequate because we did not
identify costs for some of the potential project modifications that
might be recommended to dock projects during section 7 consultation.
The commenter stated that it is inappropriate for NMFS to decide not to
consider exclusions from Unit 1 due to economic impacts in the absence
of such information. The commenter suggested we could estimate economic
impacts associated with the ``average percentage decrease in number of
docks constructed per year due to time delays associated with the
consultation process and as well as the percentage decrease in cost for
construction due to reduced size.''
Response: As we have explained in the rule and 4(b)(2) report,
specific costs that may result from project modifications recommended
by NMFS to avoid destruction or adverse modification of critical
habitat cannot be determined in all instances because such costs are
highly variable and depend on such unknown future variables as the
specific scope and location of future projects. We think the
commenter's suggested surrogate for future economic impacts associated
with costs of dock project modifications would be too speculative.
Further, a measure of the costs to third parties such as dock permit
applicants from participation in the consultation process is provided
in the 4(b)(2) report; this would include any costs due to delays. As
stated in the rule and 4(b)(2) report, we believe the information
available to project the numbers, types, and distribution of potential
future Federal actions that may trigger ESA section 7 consultation, and
identify the types of potential project modifications often associated
with these types of projects, provides a reasonable basis for
evaluating potential economic impacts of the designation, even though
some of the impacts are only qualitatively identified. Our assessment
projects that a limited scope of impacts will result from the
designation (about 8 consultations per year in Unit 1). Consultation
would be required for those projects even in the absence of the
critical habitat designation, to protect the sawfish. Finally, the
conservative approach to the assessment likely overestimates numbers of
formal consultations and project modifications that may be required. On
these bases, we do not believe evidence of economic impacts warrants
our exercise of our discretion to consider excluding areas from the
designation.
Comment 20: One commenter stated that the rule has the potential to
impact private property rights in dock/seawall replacement permits or
new permits, and in dredging of canals to the extent that may
constitute a taking of private property.
Response: The takings implications of the rule were evaluated. The
rule will not result in a physical invasion of private property, or a
complete denial of all use or value of any private property interest.
Based on the importance of the societal interest in designating
critical habitat for endangered species, and the limited nature of
impacts to private property that may result from the designation
identified in the 4(b)(2) report, we determined that the designation
will not result in a regulatory taking of private property.
Comment 21: One commenter stated that we did not justify nor
provide documentation for our conclusion that secondary costs to local
or regional
[[Page 45361]]
economies are unlikely to result from the designation.
Response: We disagree. We believe the 4(b)(2) impacts report
supports our determination that impacts to the scale that affects local
or regional economies are not likely to result from the designation. We
do not expect measurable reductions in regional revenues or employment
or growth to result from the types of project modifications that may be
required to federally permitted actions to avoid destruction or adverse
modification of critical habitat. We received no information to the
contrary from this or other commenters, including Federal agencies most
likely to be required to consult with NMFS as a result of the
designation. We contacted relevant planning agencies in developing our
impacts report, and received no reports of planned projects or
developments over the next 10 years that would require ESA consultation
and that would be of a scale to have impacts on local or regional
economies if they required modifications due to the critical habitat
designation.
G. Comments on Potential Impacts of the Designation on Ongoing
Activities
Comment 22: The U.S. Army Corps of Engineers (ACOE) requested we
exclude authorized Federal channels (Gordon Pass/Naples to Big Marco,
Key West Harbor, Everglades Harbor, Largo Sound, Charlotte Harbor, Key
West Bight & Garrison Bight, Ft. Myers Beach/Matanzas Pass, and the
Intracoastal Waterway Caloosahatchee River to Anclote River) and
existing residential canals from the critical habitat designation. Two
municipalities also requested that residential canals and waterways in
their boundaries be excluded where these systems are maintained at
depths greater than 3 ft. (0.9 m) at MLLW, and do not provide the
essential features. Several commenters requested exemptions for
dredging of channels or canals in existence at the time of the
designation.
Response: Exclusions from a critical habitat designation may be
proper where the benefits of exclusion outweigh the benefits of
inclusion of areas in a designation. Exclusions are not applicable to
areas, like those proposed by the ACOE, which will not be impacted by
the designation because they do not provide the essential features of
critical habitat and will not require section 7 consultation for
activities in those areas. As stated in the proposed rule, all existing
man-made structures such as boat ramps, docks, pilings, maintained
channels or marinas that do not provide the essential features that are
essential to the species' conservation are not part of this
designation. The three existing federally authorized channels located
within the proposed designation are the Charlotte Harbor, Ft. Myers
Beach (Matanzas Pass), and portions of the Intracoastal Waterway in the
Caloosahatchee River. These existing Federal channels have been
authorized to be dredged and maintained to depths greater than 3 ft
(0.9 m) at MLLW. The channels may contain the euryhaline component of
the shallow habitat essential feature, but they do not contain the
water depth component, or the red mangrove essential feature, and thus
would not be impacted by the designation. This also applies to
residential canals, or portions of these canals, that have been
authorized and dredged and maintained to depths greater than 3 ft (0.9
m) at MLLW. However, it is also important to note that the edges or
banks of maintained channels or canals outside the footprint authorized
to be dredged and maintained, may provide the essential features.
Comment 23: The ACOE requested a description of what is considered
a maintained channel.
Response: We consider a maintained channel to be a channel that is
dredged periodically, as necessary, to maintain its original authorized
dimensions (depth, width, etc.).
Comment 24: Several commenters expressed concern that the
designation of smalltooth sawfish critical habitat would prohibit
marine construction or maintenance of existing private or public
infrastructure (i.e., maintenance dredging, docks, piers, jetties, boat
ramps and seawalls etc.).
Response: If a proposed project authorized, funded, or carried out
by a Federal agency includes construction of a new structure, and the
structure may affect a listed species or its designated critical
habitat, the standard ESA section 7 consultation requirement would
apply. Proposed projects may require modifications, if they would
destroy or adversely modify critical habitat. Projects would only be
prohibited if there were no modifications or alternatives to the
proposed project that would avoid destruction or adverse modification
of critical habitat. If future projects in the areas covered by the
designation are similar in nature as past activities, based on our
analysis of impacts, we believe modifications should be available to
allow projects to be implemented.
Comment 25: The ACOE requested an exemption from the rule for
activities that are managed under the Comprehensive Everglades
Restoration Program (CERP) program in the proposed areas because water
discharges from Lake Okeechobee may be necessary when water levels pose
a threat to property and human lives, and responding to this type of
emergency could be impeded by having to consult under the ESA.
Response: The essential features in the proposed critical habitat
areas may be affected by future and current activities authorized and/
or funded through the CERP program. Federal agencies are required to
consult under section 7 of the ESA to ensure their actions are not
likely to jeopardize the continued existence of listed species or
result in destruction or adverse modification of their critical
habitat. CERP projects like those described by the commenter may affect
the designated critical habitat by, for example, altering the
euryhaline nature of the shallow habitat areas included in the
designated units. Future CERP projects may also benefit the species by
restoring habitats that may be utilized by smalltooth sawfish. We
believe the section 7 consultation process provides the best process
for evaluating effects from future and ongoing CERP activities, and
there are a number of mechanisms that will allow consultation without
impeding the ACOE's response to water level emergencies, such as
emergency consultations or programmatic consultations. The ESA allows
for particular areas to be excluded from a critical habitat designation
on the basis of economic, national security, or other relevant impacts;
it does not provide for exempting classes of activities from
consultation requirements. Based on the information provided by the
ACOE on this issue, NMFS cannot identify a basis for excluding critical
habitat areas from the designation based on potential future CERP and
Lake Okeechobee discharge activities.
Comment 26: A few commenters stated that residential canals and
waterways should be excluded from critical habitat designation if these
canal systems are not accessible to the species because of water
control structures such as weirs and dams.
Response: As stated in the proposed rule, areas behind water
control structures that are not accessible to smalltooth sawfish are
not part of the designation. Areas located within existing canals or
waterways that are not accessible to smalltooth sawfish because access
is prohibited by a weir or dam in existence at the time of the
designation are not part of the designation even though they may be
located within the critical habitat boundaries; installation
[[Page 45362]]
of new weirs or dams in the future may require section 7 consultation
under the ESA if a Federal permit is required for the structure and
installation of the structure could affect the essential features of
sawfish critical habitat.
Comment 27: Several commenters expressed concerns that the
designation of critical habitat would result in restriction on boating
and fishing activities and other public use of waterways within the
critical habitat boundaries.
Response: Nothing in the rule states that boater access or fishing
activities will be restricted within smalltooth sawfish critical
habitat. As stated in the proposed rule, the primary impacts of a
critical habitat designation result from the ESA section 7(a)(2)
requirement that Federal agencies consult with NMFS to ensure their
actions are not likely to result in destruction or adverse modification
of critical habitat. Furthermore, a critical habitat designation does
not result in the creation of closed areas, preserves, or refuges.
There are no individual prohibitions on any activities within critical
habitat. The transit through or anchoring of a vessel within designated
critical habitat is not prohibited. Additionally, the designation of
critical habitat does not create any closed fishing areas. Recreational
boating and fishing would only be affected by the designation if the
activity involved requires a Federal permit of some kind and the
permitted activity has the potential to adversely affect one of the
essential features on which the designation is based, red mangroves or
shallow, euryhaline coastal habitats.
Comment 28: NMFS received multiple comments requesting that the
commercial aquaculture production of shellfish be excluded from the
designation of critical habitat. Additionally, commenters expressed
concern that the harvesting or culturing of shellfish was not
considered in NMFS' economic analysis.
Response: As discussed in response to Comment 22, particular areas
may be excluded from a designation on the basis of economic, national
security, or other relevant impacts. The ESA does not provide for
exempting classes of activities from the requirements of section 7
applicable to designated critical habitat. Although we have no past
record of section 7 consultation regarding Federal permitting of
commercial shellfish aquaculture activities, the commenters acknowledge
that Federal permits may be required for placement of aquaculture
materials in navigable waters. Thus, we have added a discussion in the
Final 4(b)(2) Report regarding shellfish aquaculture and one
anticipated future formal section 7 consultation with the ACOE for
these activities that may occur in designated critical habitat for the
smalltooth sawfish. Additionally, the commercial shellfish aquaculture
may occur in areas that do not provide the critical habitat features.
Information provided by one commenter suggests that a majority of these
actions take place in water depths greater than 3 ft (0.9m) at MLLW.
Therefore, they do not contain the water depth component of the
essential features and would not be affected by the designation. In
areas where critical habitat features are present and may be impacted
by a proposed activity, we believe that the section 7 consultation
process is the appropriate mechanism for evaluating effects to proposed
critical habitat resulting from these activities. Based on our impacts
analysis for the single projected future consultation for hard clam
aquaculture activities, we did not find a basis for exercising our
discretion to consider excluding any areas from the designation due to
impacts on these activities. We expect the potential consultation
administrative costs to increase by $18,000 for this formal
consultation. We cannot determine the specific modification costs that
may be associated with this consultation since we do not know the
future locations and specific habitat conditions or potential project
sites. We expect project modifications may involve project relocations
to deeper water and/or monitoring.
Comment 29: One commenter stated that mangrove removal should not
be permitted within designated critical habitat.
Response: The rule does not prohibit mangrove removal per se. The
proposed rule requires Federal agencies to consult under section 7 of
the ESA for activities occurring within proposed critical habitat that
may affect the essential features including, but not limited to, red
mangrove impacts. If activities that involve removal of mangroves
require a Federal permit or use Federal funding, the effect of that
mangrove removal will be evaluated during section 7 consultation to
determine whether the proposed removal can and should be modified to
avoid adversely affecting or destroying or adversely modifying critical
habitat. Not every adverse impact on the essential features of
designated critical habitat will constitute destruction or adverse
modification of critical habitat; whether an adverse impact rises to
that level depends on factors including, but not limited to, the type
of project, the area, the usage by sawfish, the nature and extent of
the impacts, the nature of critical habitat in areas adjacent to the
project, etc.
Comment 30: One commenter wanted to know how the designation of
critical habitat would affect an existing ``blanket permit'' received
from the ACOE to remove vegetation for seawall installation within Cape
Coral interior canals.
Response: Our regulations at 50 CFR 402.16 require reinitiation on
completed consultations if critical habitat is designated that may be
affected by an ongoing action covered by a completed consultation.
Thus, the ACOE may reinitiate section 7 consultation on the existing
federally authorized activities if ongoing or future actions covered by
the permit to which the commenter is referring may affect the sawfish's
critical habitat features.
Summary of Changes From the Proposed Critical Habitat Designation
Based on the comments received and our review of the proposed rule,
we have made the following changes from the proposed rule and Draft
4(b)(2) Report to the final rule and its Final 4(b)(2) Report.
1. We have corrected the error in the pounds and values associated
with the ``Commercial Landings of Florida Mangrove-Dependent Species''
in Tables 5, 7, 9, and 11 in the 4(b)(2) report. See Comment 17 for an
explanation of the change.
2. We have increased the number of potential future section 7
consultations for general permits issued by the ACOE by one to account
for a consultation on Florida's shellfish aquaculture program.
Additionally, we have changed the administrative costs of future
consultations and acknowledged that project modification costs may be
associated with the consultation.
3. We have corrected the home range values for small juveniles
identified by a peer reviewer.
4. We clarified critical habitat boundaries by inserting additional
roads and text to the location of the boundaries.
Critical Habitat Identification and Designation
Critical habitat is defined by section 3 of the ESA as ``(i) the
specific areas within the geographical area occupied by the species, at
the time it is listed in accordance with the provisions of section 1533
of this title, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management
[[Page 45363]]
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed in
accordance with the provisions of section 1533 of this title, upon a
determination by the Secretary that such areas are essential for the
conservation of the species.'' This definition provides us with a step-
wise approach to identifying areas that may be designated as critical
habitat for the endangered smalltooth sawfish.
Geographical Area Occupied by the Species
The best available scientific and commercial data identify the
geographical area occupied by the smalltooth sawfish at the time of
listing (April 1, 2003) as peninsular Florida. Based on our
regulations, we interpret ``geographical area occupied'' in the
definition of critical habitat as the range of the species at the time
of listing (45 FR 13011; February 27, 1980). The range was delineated
at the time of listing from data provided by existing literature and
encounter data. Because only a few contemporary encounters (one in
Georgia, one in Alabama, one in Texas, and one in Louisiana) have been
documented outside of Florida since 1998, we consider peninsular
Florida to be the species' occupied range at the time of listing. At
this time, we do not consider the limited observations outside of
Florida as indicating that the species has re-established either its
occupation of Gulf coast waters or its seasonal migrations up the east
coast of the U.S. outside of Florida.
Specific Areas Containing Physical or Biological Features Essential to
Conservation
The definition of critical habitat further instructs us to identify
the specific areas on which are found the physical or biological
features essential to the species' conservation. Our regulations state
that critical habitat will be defined by specific limits using
reference points and lines on standard topographic maps of the area,
and referencing each area by the State, county, or other local
government unit in which it is located (50 CFR 424.12(c)).
According to the definition of critical habitat, the physical and
biological features essential to conservation must be identified
(hereafter also referred to as ``essential features''). Section 3 of
the ESA (16 U.S.C. 1532(3)) defines the terms ``conserve,''
``conserving,'' and ``conservation'' to mean: ``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 chapter are no longer necessary.'' Our
regulations at 50 CFR 424.12(b) provide guidance as to the types of
habitat features that may be used to describe critical habitat.
The recovery plan developed for the smalltooth sawfish represents
the best judgment about the objectives and actions necessary for the
species' recovery. We reviewed the recovery plan's habitat-based
recovery objective for guidance on the habitat-related conservation
requirements of the species. This objective identifies the need to
protect and/or restore smalltooth sawfish habitats and discusses adult
and juvenile habitats separately. Habitats, especially those that have
been demonstrated to be important for juveniles, must be protected and,
if necessary, restored. Protected, suitable habitat throughout the
species' range will be necessary to support recruitment of young
individuals to the recovering population. Without sufficient habitat,
the population is unlikely to increase to a level associated with low
extinction risk and delisting.
The recovery plan also identifies specific recovery criteria that
must be met to satisfy each objective. As stated in the plan, adult
habitat-based recovery criteria for the species require the
identification and protection of adult aggregation, mating, and/or
pupping areas. Information on historic aggregation, mating, and/or
pupping sites does not exist. Currently, no aggregation or mating areas
have been identified for adults. Additionally, no information is
available on specific pupping locations for gravid females. Tracking
data on gravid females is lacking, but newborn juveniles still
possessing their protective sheaths and newly pupped animals have been
documented close to shore. Encounter and site fidelity data suggest
juveniles are pupped in these areas, but this has not been validated.
No known specific areas where adults perform any particular function,
including feeding, are known. Adults are considered opportunistic
feeders and forage on a variety of fish and crustacean species. Based
on the available information on the habitat usage patterns of adults,
we cannot identify physical or biological features essential to the
species' conservation, or identify any areas on which such features may
be found.
In contrast to the paucity of information available on adult
smalltooth sawfish, more detailed information on habitat usage patterns
of juveniles is available, and more specific habitat-based recovery
criteria are identified in the recovery plan. The habitat-based
recovery criterion for juveniles identifies mangrove shorelines, non-
mangrove nursery habitats, and freshwater flow regimes as important
features for juveniles. As stated earlier, the habitat-based recovery
objective for the species focuses on protecting areas that have been
identified as important for juveniles (i.e., nurseries). This objective
also stresses the need to protect suitable habitats for juveniles to
support their recruitment into the adult population. Juveniles are
especially vulnerable to predation and starvation (Simpfendorfer and
Wiley, 2005). Protection of the species' nurseries is crucial because
the rebuilding of the population cannot occur without protecting the
source (juvenile) population and its associated habitats. The recovery
plan states that the recovery of the smalltooth sawfish depends on the
availability and quality of nursery habitats and that protection of
high-quality nursery habitats located in southwest Florida is essential
to the species.
We conclude that facilitating recruitment into the adult population
by protecting the species' juvenile nursery areas is the key
conservation objective for the species that will be supported by the
designation of critical habitat.
As stated in the recovery plan, smalltooth sawfish, like many
sharks and rays, use specific habitats commonly referred to as
nurseries or nursery areas. The recovery plan does not identify
specific locations for nursery areas but does state that protecting
nursery areas within southwest Florida is important to the recovery of
the species. Nursery areas in addition to those in southwest Florida
are also identified as important for recovery but locations of these
additional areas were not specified. Thus, to identify specific areas
that may meet the definition of critical habitat, we focused on
specifically defining what constitutes a ``nursery'' area for
smalltooth sawfish. We then identified those physical or biological
features that are essential to the conservation of the species because
they provide nursery area functions to the species in these areas.
We evaluated information in the recovery plan, historical
information on habitat use by sawfish, and available encounter data and
scientific literature, as well as sought expert opinion, to determine
where or what constitutes a ``nursery area'' for the species.
Historical information on the species only provides limited, mostly
anecdotal, information on the location of juvenile
[[Page 45364]]
animals and does not discuss specific habitat usage patterns for them.
Historical information indicates that juveniles were found in the lower
reaches of the St. Johns River, the Indian River Lagoon, southwest
Florida, and in areas along the Gulf coast between Florida and Texas.
Using historic location information alone would not provide a
reasonable basis for identification of nursery areas, given the
qualitative nature of the information. Further, because most of these
areas have been so physically altered, conditions present historically
may not be present today, and thus features that may have provided
nursery area functions in the past may be absent.
We then reviewed juvenile encounter data from the MML and FWRI
databases to see whether the data alone indicates the existence of
nursery areas. In summary, juvenile sawfish have been encountered in
the Florida Panhandle, the Tampa Bay area, in Charlotte Harbor and the
Caloosahatchee River, throughout the Everglades region and Florida Bay,
the Florida Keys, and in scattered locations along the east coast of
Florida south of the St. Johns River. However, apart from the Charlotte
Harbor, Caloosahatchee River, and Ten Thousand Islands/Everglades (TTI/
E) areas, many of these encounters are represented by a single
individual in a single year.
Heupel et al. (2007) are critical of defining nursery areas for
sharks and related species such as sawfish based solely on the presence
of single occurrences of individual juvenile fish. Instead, these
authors argue that nursery areas are areas of increased productivity
which can be evidenced by natal homing or philopatry (use of habitats
year after year) and that juveniles in such areas should show a high
level of site fidelity (remain in the area for extended periods of
time). Heupel et al. (2007) propose that shark nursery areas can be
defined based on three primary criteria: (1) Juveniles are more common
in the area than other areas, i.e., density in the area is greater than
the mean density over all areas; (2) juveniles have a tendency to
remain or return for extended periods (weeks or months), i.e., site
fidelity is greater than the mean site fidelity for all areas; and (3)
the area or habitat is repeatedly used across years whereas other areas
are not. Scattered and infrequent occurrences of juveniles may indicate
a lack of features that provide the necessary functions of a nursery
area, and an area with only scattered or infrequent occurrences is not
viewed by the authors as constituting a nursery area. Heupel et al.
(2007) do not assume that that all sharks have nursery areas. The
authors discuss that size-at-birth, rate of growth, time to maturity,
litter size and frequency of breeding may be important factors
dictating whether a shark species utilizes a nursery or not. Shark
species with high growth rates, early maturity, and annual reproduction
may not benefit as much from utilizing a nursery area. In contrast, the
authors predict that species that have small size at birth and slow
juvenile growth rates may be more likely to utilize nursery areas
because they may be more susceptible to juvenile predation. We believe
this paper provides the best framework for defining a ``nursery area''
for the smalltooth sawfish because they are small at birth, slow to
mature, and existing data on tracked juveniles indicates their limited
movements and ranges are directed toward avoiding predation by sharks
foraging in deeper waters.
Using the Heupel et al. (2007) framework, we evaluated available
juvenile encounter data for patterns in juvenile density, site
fidelity, and repeat usage over years. Encounter data indicate three
types of distributions of individual juvenile sawfish. The first group
consists of scattered or single encounters. Encounters occurring in
areas north of Charlotte Harbor, including a few in the panhandle of
Florida and along the east coast of Florida, are included in this
group. Encounters in these areas were scattered individual encounters,
and no indication of repeat or multiple use of an area was evident. The
second group of encounters consists of encounters that had multiple
individuals in an area, but these encounters were geographically
scattered and not repeated over years. These encounters occurred in the
Florida Keys. Encounters in this group were located on different sides
of various Keys, and no consistent or continuous pattern of repeat
usage over years could be identified. In fact, in 2008, juvenile
encounters were largely lacking throughout much of the Keys. The third
group of encounters exhibit repeat usage of the same location by both
single and multiple individuals, notably higher density of encounters
than the other groups, and usage occurring year after year. These
encounters occurred in areas from Charlotte Harbor south through the
Everglades and Florida Bay.
Based on this analysis, the juvenile encounters in the third
grouping discussed above, from Charlotte Harbor through the Everglades,
are the only encounters that suggest these areas meet the nursery area
criteria set forth by Heupel et al. (2007). Juvenile sawfish are more
commonly encountered in these areas than in other areas, i.e., density
in the area is greater than the mean density over all areas, and the
area is repeatedly used across years, whereas other areas are not.
Available information about site fidelity of juveniles is limited and
does not allow quantitative comparisons among the apparent nursery
areas and all other areas. However, as discussed above, available
information indicates that small and very small juveniles show high
fidelity to shallow nearshore areas where they have been acoustically
tracked. Data from juveniles tracked in the TTI/E area indicate they
exhibit site fidelity and residency patterns between 15 and 55 days
(Wiley and Simpfendorfer, 2007). Tracking data also suggest that
juveniles exhibit specific movement patterns to avoid predation. A
juvenile tracked in the Everglades National Park (ENP) in the Shark
River spent its time moving between a shallow mud bank during low tide
and mangrove roots during high tide (Simpfendorfer, 2003). Tracking
data in Mud Bay (ENP) and Faka Union Bay (TTI) indicate juveniles
remain in very shallow waters (0.9 ft (0.3 m)) over several weeks.
Tracking data in the Charlotte Harbor Estuary is limited to the
Caloosahatchee River and its adjacent canals. Juvenile tracking data
from a 60 in (153 cm) juvenile in this area indicates that the animal
remained within water depths less than 3 ft (0.9 m) along a highly
modified shoreline (Simpfendorfer, 2003). Tracking data indicate the
animal spent the majority of its time within man-made canals and
adjacent to docks and marinas within the river.
Juvenile encounters outside of the area between Charlotte Harbor
and the Everglades and Florida Bay do not fit the Heupel et al.
framework and are not considered nursery areas at this time. Anecdotal
information indicates that juvenile size animals have been encountered
throughout portions of their historic range, and our recovery plan
indicates that the establishment of nursery areas outside of southwest
Florida is necessary for the species to recover. However, we cannot
determine at this time the temporal or spatial distribution of future
sawfish nursery areas. To more specifically delineate the boundaries of
the nursery area or areas, we used Geographical Information System
(GIS) software to map the density of all juvenile (length less than or
equal to 200 cm) encounters (MML and FWRI) located along peninsular
Florida within 500 m of land, documented between the years of 1998-
[[Page 45365]]
2008, with all years combined. Two density maps were generated to
determine the mean density for all encounters and the density for all
encounters excluding the research encounters. We used 1 km\2\ density
grids (same grid size and locations used by Simpfendorfer (2006)) to
determine density levels and distributions. Juvenile densities were
very similar between the two maps. However, to remove any bias from the
research efforts, we used the juvenile density map excluding research
effort. The overall nursery area between Charlotte Harbor and Florida
Bay breaks naturally into two areas between Ten Thousand Islands and
the Caloosahatchee River, based on a long stretch of sandy beach
habitat in the Naples area that is lacking encounters with densities
greater than the mean density overall. Next we mapped juvenile
encounters in these two areas by year (1998-2008), to verify where
repeat usage occurred over years. This produced several groupings of 1
km\2\ grids with higher mean juvenile densities compared to mean
juvenile density throughout peninsular Florida: 1 grouping within
Charlotte Harbor, 1 grouping encompassing the Caloosahatchee River, and
3 groupings from the Ten Thousand Islands area through Florida Bay. We
do not believe either the Charlotte Harbor Estuary or the TTI/E nursery
areas should be subdivided into multiple smaller nursery areas for
several reasons. First, the Heupel et al. (2007) framework does not
indicate whether or how discrete nursery areas within a large area of
juvenile use might be identified. Second, our knowledge about juvenile
sawfish movements and ranges is very limited. Third, both areas consist
of interconnected environmental systems and no environmental barriers
exist to prohibit juvenile sawfish movement throughout the system.
Finally, limiting nursery area boundaries to discrete habitat grids
represented only by past encounters with juveniles would not best serve
the conservation objective of facilitating population growth through
juvenile recruitment. The specific boundaries of the two nursery areas
were then derived by locating the nearest publicly identifiable
boundary (e.g., boundaries of established parks or preserves) or
structure external to the outermost boundary of the juvenile density
grids where the mean density is greater than the density in the
surrounding areas. We identified reference points and lines on standard
topographic maps of the areas to describe the specific boundaries of
the nursery areas. The Charlotte Harbor Estuary nursery area includes
Charlotte Harbor, Gasparilla Sound, Pine Island Sound, Matlacha Pass,
San Carlos Bay, Estero Bay, and the Caloosahatchee River in Charlotte
and Lee Counties. The nursery area is bounded by the Peace River at the
eastern extent of the mouth of Shell Creek and the northern extent of
the Charlotte Harbor Preserve State Park. At the Myakka River the
nursery area is bounded by the SR-776 Bridge, in Gasparilla Sound by
the SR-771 Bridge. The COLREGS-72 lines between Gasparilla Island,
Lacosta Island, North Captiva Island, Captiva Island, Sanibel Island,
and the northern point of Estero Island are used as the coastal
boundary for the nursery area. The southern extent of the area is the
Estero Bay Aquatic Preserve, which is bounded on the south by the Lee/
Collier County line. Inland waters are bounded at SR-867 (McGregor
Boulevard) from Punta Rassa Road to SR-80 near Fort Myers, then by SR-
80 (Palm Beach Boulevard) to Orange River Boulevard, then by Orange
River Boulevard to Buckingham Road, then by Buckingham Road to SR-80,
and then following SR-80 until it is due south of the Franklin Lock and
Dam (S-79), which is the eastern boundary on the Caloosahatchee River
and a structural barrier for sawfish access. Additional inland water
boundaries north and west of the lock are bounded by North Franklin
Lock Road to North River Road, then by North River Road to SR-31, then
by SR-31 to SR-78 near Cape Coral, then by SR-78 to SR-765, then by SR-
765 to US-41, then by US-41 to US-17 (Marion Avenue) in Punta Gorda,
then by US-17 to Riverside Drive, and then by Riverside Drive to the
eastern extent of the Peace River. From the northern extent of the
Charlotte Harbor Preserve State Park, inland waters are bounded
westward along that extent to Harbor View Road, then by Harbor View
Road to US-41, then by US-41 to SR-776, then by SR-776 to the Myakka
River Bridge. The Charlotte Harbor nursery area is graphically
displayed at the end of this document.
The Ten Thousand Islands/Everglades (TTI/E) nursery area is located
within Collier, Monroe, and Miami-Dade Counties, Florida. The
Everglades nursery area includes coastal and inshore waters within
Everglades National Park (ENP), including Florida Bay, in the vicinity
of Everglades City, within the Cape Romano-Ten Thousand Islands Aquatic
Preserve (AP), and within the portion of Rookery Bay AP south of SR-92.
The boundaries match the portion of Rookery Bay AP south of SR-92, and
the Cape Romano-Ten Thousand Islands AP. The nursery area boundaries
closely match the ENP boundaries with the following two exceptions: (1)
The nursery area boundary connects points 55 and 57 of the critical
habitat map for the ENP/TTI Unit, which extend beyond the ENP boundary
to include accessible nursery areas; and (2) The nursery area boundary
is located inside the ENP boundary between points 77 and 2 illustrated
on the critical habitat map, omitting the northeastern portion of the
ENP. The area is omitted because it is not accessible to sawfish. The
TTI/E nursery area is graphically displayed at the end of this
document.
Having identified the nursery areas, we next identified the
physical or biological features found in these areas that are essential
to the species' conservation because they provide nursery area
functions to the sawfish.
Simpfendorfer (2006) analyzed MML's smalltooth sawfish encounter
data to determine the importance of habitat factors to juveniles less
than 79 in (200 cm) in length. Depth data are consistently reported by
fishers and are accurately reported because most fishers use depth
finders, so depth data were extracted from the encounter database.
Simpfendorfer examined the proximity of encounters to habitat features
that could be evaluated from geographic information system (GIS)
databases. These features were: mangroves (GIS mangrove coverages do
not distinguish between mangrove species), seagrasses, freshwater
sources, and the shoreline. Simpfendorfer (2006) used GIS shapefiles
for the features to determine the shortest distance from the encounter
to the feature. The encounter data were converted to encounter density
by gridding the data, and the results of the analysis were then used in
a habitat suitability model. The model indicates that water depths less
than 3 ft, mangrove buffers or shorelines, and euryhaline habitat areas
(areas with wider salinity ranges and receiving freshwater input) have
the strongest correlation with juvenile smalltooth sawfish encounters.
Additionally, most encounters were documented within a distance of 1641
ft (500 m) from shore. The Simpfendorfer (2006) model suggests that
areas of high suitability for juvenile sawfish contain all three of
these features. Large areas coded as ``highly suitable'' habitat for
juveniles are located in the areas we determined meet the Heupel et al.
(2007) framework criteria for a nursery area, as applied to the
sawfish.
Based on the natural history of the species, its habitat needs and
the key conservation objective of protecting
[[Page 45366]]
juvenile nursery areas, two physical and biological features are
identified as essential to the conservation of the smalltooth sawfish
because they provide nursery area functions. The two features are: red
mangroves and shallow euryhaline habitats characterized by water depths
between the Mean High Water line and 3 ft (0.9 m) measured at Mean
Lower Low Water (MLLW). As discussed above, the prop root system and
the location of red mangroves (close to shore), and shallow water
depths provide refuge from predators. Red mangroves and shallow mud or
sand bank euryhaline habitats are also highly productive and provide
ample, diverse foraging resources. Among elasmobranchs, smalltooth
sawfish are one of the few species known to inhabit euryhaline
habitats, which may provide several benefits for the species.
Euryhaline habitats are very productive environments that support an
abundance and variety of prey resources that can only be accessed by
species that inhabit their systems. Additionally, the risk of predation
may be reduced in these euryhaline habitats because very few species of
sharks (potential predators) are capable of inhabiting these habitats.
Based on the best available information, we conclude red mangroves
and adjacent shallow euryhaline habitats and the nursery area functions
they provide facilitate recruitment of juveniles into the adult
population. Thus, these features are essential to the conservation of
the smalltooth sawfish. While some studies cite 1.0 meter as the
preferred depth limit, others (Simpfendorfer 2006), cite 3.0 ft. For
this rule, the water depth feature will be defined as 3 ft (0.9 m)
because the NOAA Navigational Charts depth contour lines and most GIS
databases use English units of measure.
Based upon the best available information, we cannot conclude that
any other sufficiently definable features of the environment in the two
nursery areas, other than red mangroves and adjacent shallow euryhaline
habitats, are essential to smalltooth sawfish conservation.
Based on the boundaries of the two nursery areas and GIS data
information on the location of the features, the Charlotte Harbor
Estuary and the TTI/E nursery areas contain the features essential to
the conservation of smalltooth sawfish because they facilitate
recruitment into the adult population. In this rule, we designate these
two specific areas, referred to as critical habitat ``units,'' as
critical habitat for the smalltooth sawfish.
There are areas outside of the two nursery areas, including areas
on the east and west coasts of Florida that contain some of the same
features identified as essential features in our two nursery areas.
Habitat areas outside the specific nursery areas also meet
Simpfendorfer's (2006) classification of highly suitable habitat for
juveniles because they contain these features, notably areas in Tampa
Bay and in the Indian River Lagoon. Because the features are essential
to the conservation of the species based on the nursery functions they
provide, we determined that these features are essential to the
conservation of smalltooth sawfish only when present in nursery areas.
None of these other areas meet the Heupel et al. (2007) definition of a
nursery area. Encounters in these areas are rare and no pattern of
repeat usage could be identified. Lack of repeat or high-density usage
of these other areas by juveniles may be a function of the limited
current size of a reproducing population that does not yet need
additional nursery areas. Even so, we have no basis to conclude that
other areas, even those containing shallow euryhaline habitats and
mangroves, will be used as nursery areas in the future. Nursery areas
cannot be located based solely on the co-location of shallow depths and
euryhaline salinity regimes, and juveniles are not commonly or
repeatedly found everywhere these features are present. Mangroves may
also not be determinative of nursery area function for the sawfish; the
Florida Keys contain mangrove resources, yet juvenile sawfish use of
the Keys as evidenced by encounter data has been highly variable,
including near absence in certain recent years. Additionally, historic
anecdotal information on locations of small animals suggests they were
found in the lower St. Johns River, which does not support mangroves.
Based on the best available scientific information, we identified two
specific areas for the species where red mangroves and adjacent shallow
euryhaline habitats provide nursery functions and are therefore
essential to the conservation of the species. We therefore designate
the Charlotte Harbor Estuary and TTI/E Units.
The boundaries of the two specific areas are the same as the
Charlotte Harbor Estuary and TTI/E nursery area boundaries. GIS
bathymetry data, mangrove coverage data, and salinity data were used to
verify the distribution of the essential features within the nursery
areas. We have identified reference points and lines on standard
topographic maps of the areas to describe the specific boundaries of
the two units in the regulatory text.
The essential features can be found unevenly dispersed throughout
the two areas. The limits of available information on the distribution
of the features, and limits on mapping methodologies, make it
infeasible to define the specific areas containing the essential
features more finely than described herein. Existing man-made
structures such as boat ramps, docks, pilings, maintained channels or
marinas do not provide the essential features that are essential for
the species' conservation. Areas not accessible (i.e., areas behind
water control structures existing at the time of this final designation
that prevent sawfish passage) to sawfish are not part of this
designation. As discussed here and in the supporting impacts analysis,
given the specificity of the essential features, determining whether an
action may affect one or both of the features can be accomplished
without entering into an ESA section 7 consultation.
Unoccupied Areas
ESA section 3(5)(A)(ii) further defines critical habitat to include
specific areas outside the geographical area occupied if the areas are
determined by the Secretary to be essential for the conservation of the
species. Regulations at 50 CFR 424.12(e) specify that we shall
designate as critical habitat areas outside the geographical area
presently occupied by a species only when a designation limited to its
present range would be inadequate to ensure the conservation of the
species. Habitat based recovery criteria in the smalltooth sawfish
recovery plan suggest areas outside the current occupied range may be
important to the species' recovery. However, based on the best
available information we cannot identify unoccupied areas that are
currently essential to the conservation of the species. If information
on essential features or essential areas in the species' unoccupied
range becomes available, we will consider revising this critical
habitat designation.
Special Management Considerations or Protection
Specific areas within the geographical area occupied by a species
may be designated as critical habitat only if they contain physical or
biological features essential to the conservation of the species that
``may require special management considerations or protection.'' A few
courts have interpreted aspects of this statutory requirement, and the
plain language
[[Page 45367]]
aids in its interpretation. For instance, the language clearly
indicates the features, not the specific area containing the features,
are the focus of the ``may require'' provision. Use of the disjunctive
``or'' also suggests the need to give distinct meaning to the terms
``special management considerations'' and ``protection.'' Generally
speaking, ``protection'' suggests actions to address a negative impact
or threat of a negative impact. ``Management'' seems plainly broader
than protection, and could include active manipulation of a feature or
aspects of the environment. Two Federal district courts, focusing on
the term ``may,'' ruled that features can meet this provision based on
either present requirements for special management considerations or
protections, or on possible future requirements. See Center for Biol.
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003); Cape
Hatteras Access Preservation Alliance v. Dep't of the Interior, 344 F.
Supp. 108 (D.D.C. 2004). The Arizona district court ruled that the
provision cannot be interpreted to mean that features already covered
by an existing management plan must be determined to require
``additional'' special management, because the term ``additional'' is
not in the statute. Rather, the court ruled that the existence of
management plans may be evidence that the features in fact require
special management. Center for Biol. Diversity v. Norton, at 1096-1100.
NMFS' regulations define ``special management considerations or
protections'' to mean ``any methods or procedures useful in protecting
physical and biological features of the environment for the
conservation of listed species'' (50 CFR 424.02(j)).
Based on the above, we evaluated whether the essential features in
the two sawfish nursery areas may require special management
considerations or protections by evaluating four criteria:
a. Whether there is presently a need to manage the feature;
b. Whether there is the possibility of a need to manage the
feature;
c. Whether there is presently a negative impact on the feature; or
d. Whether there is the possibility of a negative impact on the
feature.
In evaluating present or possible future management needs for the
features, we recognized that the features in their present condition
must be the basis for a finding that these are essential to the
smalltooth sawfish's conservation. In addition, the needs for
management evaluated in (a) and (b) were limited to managing the
features for the conservation of the species. In evaluating whether the
essential features meet either criterion (c) or (d), we evaluated
direct and indirect negative impacts from any source (e.g., human or
natural). However, we only considered the criteria to be met if impacts
affect or have the potential to affect the aspect of the feature that
makes it essential to the conservation of the species. We also
evaluated whether the features met the ``may require'' provision
separately for the two ``specific areas'' proposed for designation.
Red mangroves and adjacent shallow euryhaline habitats are both
susceptible to impacts from human activities because they are located
in areas where urbanization occurs. The smalltooth sawfish status
review (NMFS 2000) states that habitat destruction is one of the key
factors affecting the present distribution of the species. The
continued urbanization of the southeastern U.S. has resulted in
substantial habitat losses for the species. Coastal areas including the
two nursery areas are subject to various impacts from activities
including, but not limited to, dredging and disposal activities,
coastal maritime construction, land development and associated runoff,
alteration of natural freshwater discharges to coastal habitats, and
installation of various submerged pipelines. The impact from these
activities combined with natural factors (e.g., major storm events) can
significantly affect the quality and quantity of the two features
listed above and their ability to provide nursery area functions (i.e.,
refuge from predators and abundant food resources), to juvenile
smalltooth sawfish to facilitate recruitment into the population.
Dredging projects modify water depths to accommodate navigation needs,
mangroves are removed to construct docks and various maritime
structures, and water control structures are installed to modify water
flows in various areas, which can alter salinity regimes downstream.
Based on our past section 7 consultation database records we know that
coastal areas in southwest Florida will continue to experience impacts
from coastal construction projects and that the essential features will
continue to experience negative impacts in the future. Based on our
past consultation history, fewer Federal actions may affect habitats in
the TTI/E Unit than in the Charlotte Harbor Estuary Unit, because much
of the TTI/E Unit is held in public ownership by the Department of the
Interior. However, coastal storm impacts to mangroves, salinity, and
water depth still occur within this area, and salinity regimes as well
as mangroves in this area may be altered in the future by projects
implemented under the Comprehensive Everglades Restoration Project.
Thus, the two essential features currently needed and will continue to
require special management and protection in both of the two specific
areas.
Activities That May Be Affected by the Designation
Section 4(b)(8) of the ESA requires that we describe briefly and
evaluate, in any proposed or final regulation to designate critical
habitat, those activities that may destroy or adversely modify such
habitat or that may be affected by such designation. A variety of
activities may affect critical habitat that, when carried out, funded,
or authorized by a Federal agency, will require an ESA section 7
consultation. Such activities include, but are not limited to, dredging
and filling, other in-water construction (docks, marinas, boat ramps,
etc.), installation of water control structures, and hard clam
aquaculture activities. Notably, all the activities identified that may
affect the critical habitat may also affect the species itself, if
present within the action area of a proposed Federal action.
We believe this final critical habitat designation will provide
Federal agencies, private entities, and the public with clear
notification of the nature of critical habitat for smalltooth sawfish
and the boundaries of the habitat. This designation will allow Federal
agencies and others to evaluate the potential effects of their
activities on critical habitat to determine if ESA section 7
consultations with NMFS are needed, given the specific definition of
the two essential features. Consistent with recent agency guidance on
conducting adverse modification analyses (NMFS, 2005), we will apply
the statutory provisions of the ESA, including those in section 3 that
define ``critical habitat'' and ``conservation,'' to determine whether
a proposed future action might result in the destruction or adverse
modification of critical habitat.
Application of ESA Section 4(a)(3)(B)(i)
Section 4(a)(3)(B) prohibits designating as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DOD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP), if we determine
that such a plan provides a benefit to the sawfish species (16 U.S.C.
1533(a)(3)(B)). We solicited information from DOD and received
responses indicating that no DOD facilities or managed areas are
located
[[Page 45368]]
within the specific areas identified as critical habitat.
Application of ESA Section 4(b)(2)
The foregoing discussion described the specific areas within U.S.
jurisdiction that fall within the ESA section 3(5) definition of
critical habitat because they contain the physical and biological
features essential to the sawfish's conservation that may require
special management considerations or protection. Before including areas
in a designation, section 4(b)(2) of the ESA requires us to consider
the economic, national security, and any other relevant impacts of
designation of any particular area. Additionally, we have the
discretion to exclude any area from designation if we determine the
benefits of exclusion (that is, avoiding some or all of the impacts
that would result from designation) outweigh the benefits of
designation based upon the best scientific and commercial data
available. We may not exclude an area from designation if exclusion
will result in the extinction of the species. Because the authority to
exclude is discretionary, exclusion is not required for any particular
area under any circumstances.
The analysis of impacts below summarizes the comprehensive analysis
contained in our Final 4(b)(2) Report (NMFS, 2009), considering the
economic, national security, and other relevant impacts that we
projected would result from including the two units in the critical
habitat designation. This consideration informed our decision on
whether to exercise our discretion to exclude particular areas from the
designation. Both positive and negative impacts were identified and
considered (these terms are used interchangeably with benefits and
costs, respectively). Impacts were evaluated in quantitative terms
where feasible, but qualitative appraisals were used where that was
more appropriate to particular impacts.
The ESA does not define what ``particular areas'' means in the
context of section 4(b)(2), or the relationship of particular areas to
``specific areas'' that meet the statute's definition of critical
habitat. As there was no biological basis to subdivide the two specific
critical habitat units into smaller units, we treated these units as
the ``particular areas'' for our initial consideration of impacts of
designation.
Impacts of Designation
The primary impacts of a critical habitat designation result from
the ESA section 7(a)(2) requirement that Federal agencies ensure their
actions are not likely to result in the destruction or adverse
modification of critical habitat. Determining these impacts is
complicated by the fact that section 7(a)(2) also requires that Federal
agencies ensure their actions are not likely to jeopardize the species'
continued existence. An incremental impact of designation is the extent
to which Federal agencies modify their proposed actions to ensure they
are not likely to destroy or adversely modify the critical habitat
beyond any modifications they would make because of listing and the
jeopardy prohibition. When a modification would be required due to
impacts to both the species and critical habitat, the impact of the
designation may be co-extensive with the ESA listing of the species.
Our Draft 4(b)(2) Report projected administrative and project
modification costs that would be incremental impacts of the
designation, based on our consultation history for the species and on
the assumption that formal consultations would not be required to avoid
adverse effects to the species itself. Past consultations on projects
in the range of the species have all concluded the species was not
likely to be adversely affected, due to the mobility and perceived lack
of specific habitat use by the species. However, recent section 7
consultations have determined that it may not be appropriate to
conclude that juvenile sawfish forced to vacate nursery habitat due to
project activities will not be harmed by these effects, given
juveniles' specific habitat requirements and high site fidelity. In
some recent consultations, limitations on removal of red mangroves and
shallow habitat areas were implemented to avoid take of juvenile
sawfish using project areas. Because such projects are directly
impacting features that have been identified as critical habitat and
may be indirectly affecting the listed species, it is possible that
critical habitat considerations will be the more important factor in
shaping future consultations. Thus, in the Final 4(b)(2) Report, we
have retained the conservative assumption that the identified costs and
benefits will be incremental impacts of the critical habitat
designation.
The Final 4(b)(2) Report begins with a description of the projected
future Federal activities that would trigger section 7 consultation
requirements because they may affect one or both of the essential
features. Additionally, the report describes the project modifications
we identified that may reduce impacts to the essential features.
Positive impacts that may arise from avoiding destruction or adverse
modification of the species' habitat, and education of the public to
the importance of an area for species conservation, are also described.
The report discusses the lack of expected impacts on national security
and other relevant impacts. This report is available on NMFS' Southeast
Region Web site at http://sero.nmfs.noaa.gov/pr/SmalltoothSawfish.htm.
Economic Impacts
As discussed above, economic impacts of the critical habitat
designation result through implementation of section 7 of the ESA in
consultations with Federal agencies to ensure their proposed actions
are not likely to destroy or adversely modify critical habitat. These
economic impacts may include both administrative and project
modification costs; economic impacts that may be associated with the
conservation benefits of the designation are characterized as other
relevant impacts and described later.
Because the smalltooth sawfish has been listed for 5 years, a
consultation history exists for the species that allowed formulating
predictions about the types of future Federal activities that might
require section 7 consultation in the next 10 years (the typical time
period for section 4(b)(2) reports). We examined our consultation
records compiled in our Public Consultation Tracking System (PCTS)
database, to identify types of Federal activities that have the
potential to adversely affect either both the smalltooth sawfish and
its critical habitat, or just the critical habitat (actions that
require consultation due to effects solely on the fish are not impacts
of the designation of critical habitat). The PCTS database contains
information dating from 1997, providing a consultation history for
sawfish and co-located listed species spanning 10 years. Consultation
data for smalltooth sawfish began when the species was listed in 2003,
and available information indicates that the number of consultations
increased over time as Federal agencies recognized those projects that
might affect the species and thus require consultation. Based on our
outreach efforts to Federal agencies about the need to consult on the
species, we believe that our data from 2005 to the present represents
the level of future actions that may trigger consultation in the two
areas designated as critical habitat from which to estimate the number
of future actions that may trigger consultation. Thus we extrapolated
the number of consultations that occurred over a three-year period
between 2005 and the
[[Page 45369]]
present that required consultation due to the presence of the sawfish
into the number of future consultations. We also considered information
provided by Federal action agencies on future consultations.
We identified four categories of activities that would require
consultation due to potential impacts to one or both of the essential
features: marine construction activities that require a Federal permit
(e.g., docks, piers, boat ramps, dredging, shoreline stabilization,
etc.); general permits (including shellfish aquaculture activities)
authorizing specified categories and locations of construction
activities without the need for individual project-specific permits;
water control structure repair and replacement; and road/bridge
expansions, repairs and removals. No categories of future Federal
actions are expected to require consultation due solely to impacts on
one or both of the critical habitat features; all categories of
projected future actions may trigger consultation because they have the
potential to adversely affect the essential features and the species
itself. Therefore, we do not predict this designation will result in an
increase in the number of consultations that would be required due
solely to the presence of the species in the two specific units.
Moreover, fewer than half of the past projects that required
consultation due to effects on sawfish had actual impacts on one or
both of the features determined as critical habitat. A total of 77
consultations in the Charlotte Harbor Estuary Unit and a total of 8
consultations in the TTI/E Unit are predicted over the next ten years
due to the designation. The ACOE is projected to be the Federal action
agency for the majority of future projects requiring consultation due
to adverse effects to critical habitat in both units; the U.S. Coast
Guard and/or the Federal Highways Administration may be co-action
agencies that may also be involved in three consultations in the
Charlotte Harbor Estuary Unit over the next ten years. Although the
TTI/E unit largely overlaps the Everglades National Park, due to
limitations on habitat-altering activities in the park, we project only
one consultation will be required with the Department of Interior (DOI)
over the next 10 years as a result of this designation.
As explained above, to be conservative and avoid underestimating
impacts of the designation, we assumed that although all future
projects will trigger consultation due to both the species and the
critical habitat, the consultations will be formal and require a
biological opinion based on potential adverse impacts on one or both of
the essential features of the critical habitat. Thus, we have estimated
the maximum potential incremental administrative costs of each
consultation that will result from the designation, as the difference
in average costs of an informal and formal consultation. We have
estimated the total costs for each unit as a range, reflecting the
possible range in complexity and cost of consultations. The maximum
potential incremental administrative costs for the Charlotte Harbor
Estuary Unit are estimated to range from $1,039,500 to $1,386,000
(depending on complexity) over the 10-year planning period. The maximum
potential incremental administrative costs for the TTI/E Unit are
estimated to range from $108,000 to $144,000 (depending on complexity)
over the 10-year planning period.
We next considered the range of modifications we may recommend to
avoid adverse modification from projected future activities in the
smalltooth sawfish critical habitat. We assumed in our analysis that
the costs of project modifications to avoid destroying or adversely
modifying critical habitat would not be costs that are co-extensive
with the listing of the species. Although recently completed
consultations indicate that project modifications may be required in
the future to avoid take of juvenile sawfish using their nursery areas,
as discussed above, it is conceivable that critical habitat
considerations will be the more important factor shaping the outcome of
future consultations and selection of project modifications. Similarly,
we assumed that the costs of project modifications required to avoid
destruction or adverse modification of critical habitat will not be
costs that are co-extensive with another existing regulatory
requirement. Though there are numerous existing Federal, State, or
local laws and regulations that protect natural resources including the
essential features to some degree, none of these laws focuses on
avoiding the destruction or adverse modification of these features,
which provide sawfish nursery area functions, thus facilitating sawfish
recovery. As a result, we believe the designation will provide unique,
additional protections to the critical habitat features that would
result in project modifications where existing laws would not require
such modifications.
We identified eight potential project modifications that we may
recommend during section 7 consultation to avoid or reduce impacts to
the essential features. To be conservative in estimating impacts, we
assumed that project modifications would be recommended to address
adverse effects from all projected future agency actions requiring
consultation. Although we made the assumption that all potential
project modifications would be recommended by NMFS, not all of the
modifications identified for a specific category of activity would be
necessary for an individual project, but we are not able to identify
the exact modification or combinations of modifications that would be
required for all future actions. Conversely, more than one project
modification may be required for individual future projects where both
essential features may be adversely affected by a project, and multiple
project modifications are required to avoid such impacts.
Table 1 provides a summary of the estimated costs, where possible,
of individual project modifications. The Final 4(b)(2) Report provides
a detailed description of each project modification, actions for which
it may be recommended, and whether it may be useful in avoiding adverse
impacts to one or both of the essential features.
Table 1--Summary of Types of Potential Project Modifications
----------------------------------------------------------------------------------------------------------------
Project modification Cost Unit Range Approx. totals
----------------------------------------------------------------------------------------------------------------
Project Relocation.............. Undeterminable.... N/A............... N/A............... N/A.
Horizontal Directional Drilling $1.39-2.44 million per mile.......... 0.2-31.5 Miles.... $278,000-$76,900,0
(HDD). 00.
Restriction of Utility/Road Roadway Retained Linear Foot....... N/A............... $1,875-$5,050 per
Corridor Widths. Sides, 2 Lane = linear foot.
$1,875.
Roadway Retained
Sides, 4 Lane =
$2,150.
[[Page 45370]]
Roadway Bridge, 2
Lane = $3,370.
Roadway Bridge, 4
Lane = $5,050.
Alternative Shoreline Undeterminable.... N/A............... N/A............... N/A.
Stabilization Methods.
Limitations on Dock Widths and Undeterminable.... Sq. Foot.......... N/A............... N/A.
Sizes.
Limitations/Restrictions on Undeterminable.... N/A............... N/A............... N/A.
Modifying Freshwater Flow.
Sediment and Turbidity Controls. Staked Silt Fence Linear Foot....... N/A............... $2-$12 per linear
= $2. foot.
Floating Turbidity
Barrier = $12.
Conditions Monitoring........... Undeterminable.... N/A............... N/A............... N/A.
----------------------------------------------------------------------------------------------------------------
Note: Where information was available, the estimated ranges (extents) of the impacts are included.
National Security Impacts
Previous critical habitat designations have recognized that impacts
to national security may result if a designation would trigger future
ESA section 7 consultations because a proposed military activity ``may
affect'' the physical or biological feature(s) essential to the listed
species' conservation. Anticipated interference with mission-essential
training or testing or unit readiness, either through delays caused by
the consultation process or through requirements to modify the action
to prevent adverse modification of critical habitat, has been
identified as a negative impact of critical habitat designations (see,
e.g., Proposed Designation of Critical Habitat for the Pacific Coast
Population of the Western Snowy Plover, 71 FR 34571, 34583 (June 15,
2006); and Proposed Designation of Critical Habitat for Southern
Resident Killer Whales; 69 FR 75608, 75633 (December 17, 2004)).
These past designations have also recognized that national security
impacts do not result from a critical habitat designation if future ESA
section 7 consultations would be required for a jeopardy analysis even
if no critical habitat was designated, in which case the critical
habitat designation would not add new burdens beyond those related to
the jeopardy consultation.
On April 11, 2008, we sent a letter to DOD requesting information
on national security impacts of the proposed designation. We received
responses from the Departments of the Army, Navy, and Air Force
indicating that they have no facilities or managed areas located within
the proposed critical habitat areas. Thus, consultations with respect
to activities on DOD facilities or training are unlikely to be
triggered as a result of the final critical habitat designation, and no
national security impacts are anticipated as a result of this critical
habitat rule.
Other Relevant Impacts
Past critical habitat designations have identified three broad
categories of other relevant impacts: educational awareness benefits,
conservation benefits, both to the species and to society as a result
of the avoidance of destruction or adverse modification of critical
habitat, and impacts on governmental or private entities that implement
existing management plans in the areas covered by the designation. Our
Final 4(b)(2) Report discusses these impacts of designating the
specific areas as critical habitat for smalltooth sawfish.
As summarized in the Final 4(b)(2) Report, there are potential
educational benefits resulting from the designation. Particularly in
Florida, the designation may expand the awareness raised by the listing
of the smalltooth sawfish. Mangrove shoreline areas are often used for
recreational activities such as kayaking, and provide habitat for
viewable wildlife. Additionally, Federal and State protected areas,
such as Everglades National Park, Rookery Bay National Estuarine
Preserve, Cape Romano-Ten Thousand Islands Aquatic Preserve, and
Collier-Seminole State Park may benefit from the added awareness of the
endangered smalltooth sawfish within their boundaries, and from the
protection critical habitat designation affords.
Implementation of ESA Section 7 to avoid destruction or adverse
modification of critical habitat is expected to increase the
probability of recovery for listed species. In addition to contributing
to sawfish recovery, benefits associated with project modifications
required through section 7 consultation to minimize or avoid the
destruction or adverse modification of the essential features, would
include minimizing or avoiding loss of the ecosystem services that
these features provide. By definition, the physical and biological
features are ``essential to the conservation'' of the smalltooth
sawfish; in other words, conservation of the species as defined in the
ESA is not possible without the presence and protection of the
features. As discussed above, we have determined that the two areas
included in the critical habitat designation are juvenile nursery
areas. The essential features of these areas, red mangroves with their
prop root systems, and adjacent shallow euryhaline habitats, provide
protection from predators and abundant and diverse prey resources, and
thus provide key nursery area functions for the sawfish.
Because the smalltooth sawfish has limited commercial and
recreational value, and because the species' recovery is expected to
take decades, we can predict no direct or indirect monetary value that
may result from the designation because of its contribution to the
recovery of the smalltooth sawfish. However, as discussed in the
following paragraphs, other benefits are expected to accrue to society
in the course of protecting the essential features of the sawfish's
critical habitat from destruction or adverse modification.
Mangrove ecosystems provide a range of important uses and services
to society. As these benefits currently exist, we do not interpret them
as resulting from the critical habitat designation per se. However,
protection of the critical habitat from destruction or adverse
modification may at a minimum prevent loss of the benefits provided by
these resources, and would contribute to any benefits associated with
increased future abundance of the smalltooth sawfish as it recovers. As
we discuss in the Final 4(b)(2) Report, we believe that the critical
habitat designation will provide unique, additional protections to
mangroves in
[[Page 45371]]
the areas covered by the designation, relative to existing laws and
regulations.
The additional protection of mangroves offered through the critical
habitat designation ensures that mangroves in the areas covered by the
final designation can continue to function as critical components of
the ecosystem. The Final 4(b)(2) Report discusses benefits of mangroves
including benefits to biodiversity, benefits to fisheries, benefits to
air and water quality protection, shoreline protection, and benefits to
recreation and tourism. Most of these benefits are described in non-
monetary metrics. Where economic values are presented, we note that
they are derived from a variety of sources and studies and are provided
for context in support of our conclusion that non-negligible economic
benefits are expected to result from the designation, because
protection of the critical habitat from destruction or adverse
modification is expected at minimum to prevent loss of existing
benefits the habitat provides.
While the shallow water euryhaline habitat feature offers important
ecosystem services to various juvenile fish, invertebrates, and benthic
and epibenthic organisms as described in the Final 4(b)(2) Report,
their conservation benefits are interrelated with the benefits offered
by conservation of red mangroves. Consequently, the Final 4(b)(2)
Report focuses on the benefits of mangroves, and the interrelated
benefits of the shallow water euryhaline habitat are not discussed in
detail.
Very little impact on entities responsible for natural resource
management or conservation plans that benefit listed species, or on the
functioning of those plans, is predicted to result from the critical
habitat designation in the areas covered by the plans. Though the TTI/E
unit largely overlaps with the Everglades National Park, our
discussions with park managers identify only one park management
project that will require consultation during the next 10 years.
Synthesis of Impacts Within the Specific Areas
For the reasons set forth below, based on our consideration of
positive and negative economic, national security and other relevant
impacts predicted to result from the designation, we do not exercise
our discretion to exclude all or any part of either the Charlotte
Harbor Estuary Unit or the Ten Thousand Islands/Everglades Unit from
the designation. No impacts on national security are projected to
result from the designation. Very little negative impact on existing
resource management activities is projected to result from the
designation. Negative economic impacts resulting from section 7
consultation requirements are projected to be limited. A total of 85
Federal actions over the next ten years are projected to require
section 7 consultation to address predicted adverse effects to one or
both of the physical or biological features of designated critical
habitat. Seventy-seven of these actions are projected for the Charlotte
Harbor Estuary Unit, or approximately eight per year on average. Only
eight future consultations are projected to be required in the TTI/E
Unit over the next ten years due to impacts on the critical habitat
features, or approximately one per year on average. All of these
projects would have required consultation due to the listing of the
sawfish, even in the absence of the designation. We have projected that
incremental section 7 costs will be associated with the designation, in
the form of increased administrative costs of more complex, formal
consultations, and in project modification costs. Estimated costs for
these project modifications are provided in the Final 4(b)(2) Report,
though we could not predict the total cost of modifications resulting
from the designation given the lack of information on project design
and locations. However, we may have overestimated impacts in our
assumption that all modification costs will be necessary and will be
incremental impacts of the designation rather than baseline impacts of
existing State, local or other Federal laws or regulations that protect
natural resources or co-extensive impacts of the listing of the
sawfish. We do not project that any required project modifications will
have secondary impacts on local or regional economies. The majority of
project modifications are projected to be recommended to avoid adverse
effects to the red mangroves in the critical habitat areas. We expect
that the designation will provide unique, additional protections to
mangroves because existing laws and regulations in these areas do not
avoid the destruction or adverse modification of mangroves for the
purpose of facilitating recovery of the sawfish. The final designation
is expected to, at minimum, prevent the loss of societal benefits that
mangroves and shallow euryhaline habitats currently provide in the two
specific areas included in the proposal.
Critical Habitat Designation
We are designating approximately 840,472 acres in two units of
critical habitat occupied by the U.S. DPS of smalltooth sawfish at the
time of its listing. The two units determined for critical habitat
designations are: the Charlotte Harbor Estuary Unit, which comprises
approximately 221,459 acres of habitat; and the Ten Thousand Islands/
Everglades Unit (TTI/E), which comprises approximately 619,013 acres of
habitat. The two units are located along the southwestern coast of
Florida between Charlotte Harbor and Florida Bay.
These specific areas contain the following physical and biological
features that are essential to the conservation of this species and
that may require special management considerations or protection: red
mangroves and shallow euryhaline habitats characterized by water depths
between the MHW line and 3 ft (0.9 m) measured at Mean Lower Low Water
(MLLW). No unoccupied areas are included in the final designation of
critical habitat.
Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review establishing
minimum peer review standards, a transparent process for public
disclosure of peer review planning, and opportunities for public
participation. The OMB Bulletin, implemented under the Information
Quality Act (Pub. L. 106-554), is intended to enhance the quality and
credibility of the Federal government's scientific information, and
applies to influential or highly influential scientific information
disseminated on or after June 16, 2005.
To satisfy our requirements under the OMB Bulletin, we obtained
independent peer review of the scientific information included in the
proposed critical habitat designation, including the Draft 4(b)(2)
Report and incorporated the peer review comments prior to dissemination
of the proposed rulemaking. The peer review comments and our responses
are summarized above.
Classification
The State of Florida determined this action is consistent to the
maximum extent practicable with the enforceable policies of the
approved coastal management programs of Florida. This determination is
required under section 307 of the Coastal Zone Management Act.
This final rule has been determined to be significant under
Executive Order (E.O.) 12866. We have integrated the regulatory
principles of the E.O. into the development of this rule to the extent
consistent with the mandatory duty to
[[Page 45372]]
designate critical habitat, as defined in the ESA.
We prepared a final regulatory flexibility analysis (FRFA) pursuant
to section 603 of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), which describes the economic impact this rule may have on small
entities.
This rule may affect small businesses, small nonprofit
organizations, and small governmental jurisdictions that engage in
activities that would affect the essential features identified in this
designation, if they receive funding or authorization for such activity
from a Federal agency. Such activities would trigger ESA section 7
consultation requirements, and potential modifications to proposed
activities may be required to avoid destroying or adversely modifying
the critical habitat. The consultation record from which we have
projected likely actions occurring over the next ten years indicates
that applicants for Federal permits or funds may include small
entities. For example, marine contractors may require ACOE permits for
dock construction; some of these contractors may be small entities.
According to the Small Business Administration, businesses in the Heavy
and Civil Engineering Construction subsector (NAICS Code 237990), which
includes firms involved in marine construction projects such as
breakwater, dock, pier, jetty, seawall and harbor construction, must
have average annual receipts of no more than $31 million to qualify as
a small business (dredging contractors that perform at least 40% of the
volume dredged with their own equipment, or equipment owned by another
small concern are considered small businesses if their average annual
receipts are less than or equal to $18.5 million). Our consultation
database does not track the identity of past permit recipients or
whether the recipients were small entities, so we have no basis to
determine the percentage of grantees or permittees that may be small
businesses in the future.
Small businesses in the tourist and commercial fishing industries
may benefit from the rule because avoiding the destruction or adverse
modification of the critical habitat features, particularly mangroves,
is expected to at minimum prevent loss of current direct and indirect
use of, and values derived from, these habitats within the areas
included in the designation.
A review of historical ESA section 7 consultations involving
projects in the areas designated are described in Section 3.2.2 of the
Final 4(b)(2) Report prepared for this rulemaking. We projected that,
on average, about eight Federal projects with non-Federal grantees or
permittees will be affected by implementation of the critical habitat
designation, annually, across both areas included in the critical
habitat designation. Some of these grantees or permittees could be
small entities, or could hire small entities to assist in project
implementation. Historically, these projects have involved dock/pier
construction and repair, water control structure installation or
repair, bridge repair and construction, dredging, cable installation,
and shoreline stabilization. Potential project modifications we have
identified that may be required to prevent these types of projects from
adversely modifying critical habitat include: project relocation;
environmental conditions monitoring; horizontal directional drilling;
road/utility corridor restrictions; alternative shoreline stabilization
methods; dock size and width limits; restrictions on structures that
modify freshwater flows; and sediment and turbidity control measures.
See Table 15 of the Final 4(b)(2) Report.
Even though we cannot determine relative numbers of small and large
entities that may be affected by this rule, there is no indication that
affected project applicants would be limited to, nor disproportionately
comprised of, small entities.
It is unclear whether small entities would be placed at a
competitive disadvantage compared to large entities. However, as
described in the Final 4(b)(2) Report, consultations and project
modifications will be required based on the type of permitted action
and its associated impacts on the essential critical habitat feature.
Because the costs of many potential project modifications that may be
required to avoid adverse modification of critical habitat are unit
costs such that total project modification costs would be proportional
to the size of the project, it is not unreasonable to assume that
larger entities would be involved in implementing the larger projects
with proportionally larger project modification costs.
It is also unclear whether the rule will significantly reduce
profits or revenue for small businesses. As discussed throughout the
Final 4(b)(2) Report, we made assumptions that all future consultations
will be formal, that all will require project modifications, and that
all costs of project modifications will be incremental impacts of the
designation and not a requirement of other existing regulatory
requirements including ESA requirements for protection of the sawfish
itself. These assumptions likely overestimate the impacts of the
designation. In addition, as stated above, though it is not possible to
determine the exact cost of any given project modification resulting
from consultation, the smaller projects most likely to be undertaken by
small entities would likely result in relatively small modification
costs.
There are no record-keeping requirements associated with the rule.
Similarly, there are no reporting requirements other than those that
might be associated with reporting on the progress and success of
implementing project modifications. However, third party applicants or
permittees would be expected to incur incremental costs associated with
participating in the administrative process of consultation along with
the permitting Federal agency, beyond the baseline administrative costs
that would be required for consultations based on the sawfish itself.
Estimates of the cost to third parties from consultations were
developed from the estimated Section 7 costs identified in the Economic
Analysis of Critical Habitat Designation for the Gulf Sturgeon (IEc
2003) inflated to 2009 (March) dollars. The maximum potential
incremental third party cost for each consultation would be the
difference between the cost of an informal consultation required solely
for the presence of the sawfish and a formal consultation required to
avoid destroying or adversely modifying the critical habitat ($2,000
difference per low complexity consultation and $1,600 difference per
high complexity consultation). The total impact on third party costs
would be the incremental cost of the formal consultation multiplied by
the increased number of formal consultations. The maximum incremental
third party costs for both Units are estimated to range from $136,200
to $170,000 (depending on complexity) over the 10-year planning period.
No Federal laws or regulations duplicate or conflict with the final
rule. Existing Federal laws and regulations overlap with the final rule
only to the extent that they provide protection to natural resources
including mangroves generally. However, no existing laws or regulations
specifically prohibit destruction or adverse modification of critical
habitat for, and focus on the recovery of, the smalltooth sawfish.
The alternatives to the designation considered consisted of three
alternatives: no-action, our preferred alternative, and an alternative
with varying numbers of units. NMFS would not designate critical
habitat for the smalltooth sawfish under the no action (status quo)
alternative. Under this
[[Page 45373]]
alternative, conservation and recovery of the listed species would
depend exclusively upon the protection provided under the ``jeopardy''
provisions of Section 7 of the ESA and implementation of the recovery
plan. Under the status quo, there would be no increase in the number of
ESA consultations or project modifications in the future that would not
otherwise be required due to the listing of the smalltooth sawfish.
However, the physical and biological features forming the basis for our
final critical habitat designation are essential to sawfish
conservation, and conservation for this species will not succeed
without the availability of these features. Thus, the lack of
protection of the critical habitat features from adverse modification
could result in continued declines in abundance of smalltooth sawfish,
and loss of associated values sawfish provide to society. Further, this
alternative is not consistent with the requirement of the ESA to
designate critical habitat to the maximum extent prudent and
determinable.
Under the preferred alternative two specific areas that provide
nursery functions for juvenile sawfish are included in the final
critical habitat designation. These areas are located along peninsular
Florida, encompassing portions of Charlotte, Lee, Collier, Monroe, and
Miami-Dade counties. These two areas contain the physical and
biological features essential to the conservation of the U.S. DPS of
smalltooth sawfish. The essential features are red mangroves and
shallow euryhaline habitats characterized by water depths between the
MHW line and 3 ft (0.9 m) measured at MLLW that provide nursery area
functions to smalltooth sawfish. The preferred alternative was selected
because it best implements the critical habitat provisions of the ESA,
by defining the specific features that are essential to the
conservation of the species, and due to the important conservation
benefits expected to result from this alternative relative to the no
action alternative.
Under the varying number of units alternative, we considered both
combining the Charlotte Harbor Estuary Unit and the TTI/E Unit into a
single unit for designation, and alternatively we considered splitting
both units into multiple smaller units.
Under the first scenario, the unit would include the Naples beach
area between the two units, and thus would encompass a larger total
area than the two units. Though juveniles have been encountered in the
Naples beach area, they have not been encountered in high densities. We
also do not believe that juveniles move between the Charlotte Harbor
Estuary and TTI/E Units along this stretch of beach. Furthermore, while
red mangroves exist along this area (though they are much more sparsely
distributed than in the two units), the salinity regimes are much more
purely marine than estuarine, and the features are not considered to
provide the nursery functions essential to the conservation of the
species in these areas. Thus, we rejected this alternative in our final
critical habitat designation because the Naples Beach area is not
considered to meet the definition of a nursery area.
Under the second scenario, we considered options to split both the
Charlotte Harbor Estuary Unit and the TTI/E Unit into multiple smaller
units. We considered designating Charlotte Harbor and the
Caloosahatchee Rivers as separate units, including limiting the sizes
of each of these areas strictly to locations of past high density
encounters of juveniles. We considered the same type of partitioning of
the TTI/E Unit into smaller isolated units based on past high density
encounters alone. We rejected the alternative of separating Charlotte
Harbor and the Caloosahatchee River because State and local water
resource managers consider the systems as a single integrated aquatic
system. For both units, we rejected the alternative of multiple smaller
units drawn around past high density juvenile encounters because we
believe it would have omitted habitat that is almost certain nursery
habitat for the sawfish between the separated small units. In addition,
the essential features are continuously distributed from the harbor
into the river, so this option would have omitted areas that meet the
definition of critical habitat. Moreover, a designation limited to past
encounters would not take into account the limits of this type of data
in defining the extent of habitat use by the sawfish, and it would not
provide protection for expanded nursery habitat needed for a recovering
population. In addition, it was not clear that designating multiple
smaller units would result in lower economic impacts of the
designation, as the precise location of future consultations within
these areas cannot be predicted based on available information.
An environmental analysis as provided for under National
Environmental Policy Act for critical habitat designations made
pursuant to the ESA is not required. See Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
Pursuant to the Executive Order on Federalism, E.O. 13132, the
Assistant Secretary for Legislative and Governmental Affairs provided
notice of this action and requested comments from the appropriate
official(s) of the State of Florida. As mentioned above, Florida found
the regulation consistent with its approved coastal management
programs.
This action has undergone a pre-dissemination review and determined
to be in compliance with applicable information quality guidelines
implementing the Information Quality Act (Section 515 of Pub. L. 106-
554).
This action does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act.
References Cited
A complete list of all references cited in this rulemaking can be
found on our Web site at http://sero.nmfs.noaa.gov/pr/SmalltoothSawfish.htm and is available upon request from the NMFS
Southeast Regional Office in St. Petersburg, Florida (see ADDRESSES).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: August 27, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, NMFS amends 50 CFR part 226 as
set forth below:
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. Add Sec. 226.218, to read as follows:
Sec. 226.218 Critical habitat for the U.S. DPS of smalltooth
sawfish (Pristis pectinata). Critical habitat is designated for the
U.S. DPS of smalltooth sawfish as described in this section. The
textual descriptions in paragraph (b) of this section are the
definitive source for determining the critical habitat boundaries. The
maps of the critical habitat units provided in paragraph (d) of this
section are for illustrative purposes only.
(a) Physical and biological features essential to the conservation
of the endangered U.S. DPS of smalltooth sawfish. The physical and
biological features essential to the conservation of the U.S. DPS of
smalltooth sawfish, which provide nursery area functions are: red
mangroves and shallow euryhaline habitats characterized by water depths
between the Mean High Water line and 3 ft (0.9 m) measured at
[[Page 45374]]
Mean Lower Low Water (MLLW). These features are included in critical
habitat within the boundaries of the specific areas in paragraph (b) of
this section, except where the features were not physically accessible
to sawfish at the time of this designation (September 2009); for
example, areas where existing water control structures prevent sawfish
passage to habitats beyond the structure.
(b) Critical habitat boundaries. Critical habitat includes two
areas (units) located along the southwest coast of peninsular Florida.
The northern unit is the Charlotte Harbor Estuary Unit and the southern
unit is the Ten Thousand Islands/Everglades (TTI/E) Unit. The units
encompass portions of Charlotte, Lee, Collier, Monroe, and Miami-Dade
Counties.
(1) Charlotte Harbor Estuary Unit. The Charlotte Harbor Estuary
Unit is located within Charlotte and Lee Counties. The unit includes
Charlotte Harbor, Gasparilla Sound, Pine Island Sound, Matlacha Pass,
San Carlos Bay, Estero Bay, and the Caloosahatchee River. The unit is
defined by the following boundaries. It is bounded by the Peace River
at the eastern extent at the mouth of Shell Creek at 81[deg]59.467' W,
and the northern extent of the Charlotte Harbor Preserve State Park at
26[deg]58.933' N. At the Myakka River the unit is bounded by the SR-776
Bridge and in Gasparilla Sound by the SR-771 Bridge. The COLREGS-72
lines between Gasparilla Island, Lacosta Island, North Captiva Island,
Captiva Island, Sanibel Island, and the northern point of Estero Island
are used as the coastal boundary for the unit. The southern extent of
the unit is the Estero Bay Aquatic Preserve, which is bounded on the
south by the Lee/Collier County line. Inland waters are bounded by SR-
867 (McGregor Boulevard) from Punta Rassa Road to SR-80 near Fort
Myers, then by SR-80 (Palm Beach Boulevard) to Orange River Boulevard,
then by Orange River Boulevard to Buckingham Road, then by Buckingham
Road to SR-80, and then following SR-80 until it is due south of the
Franklin Lock and Dam (S-79), which is the eastern boundary on the
Caloosahatchee River and a structural barrier for sawfish access.
Additional inland water boundaries north and west of the lock are
bounded by North Franklin Lock Road to North River Road, then by North
River Road to SR-31, then by SR-31 to SR-78 near Cape Coral, then by
SR-78 to SR-765, then by SR-765 to US-41, then by US-41 to US-17
(Marion Avenue) in Punta Gorda, then by US-17 to Riverside Drive, and
then by Riverside Drive to the eastern extent of the Peace River at
81[deg]59.467' W. From the northern extent of the Charlotte Harbor
Preserve State Park at 26[deg]58.933' N, inland waters are bounded
westward along that latitude to Harbor View Road, then by Harbor View
Road to US-41, then by US-41 to SR-776, then by SR-776 to the Myakka
River Bridge.
(2) Ten Thousand Islands/Everglades Unit (TTI/E). The TTI/E Unit is
located within Collier, Monroe, and Miami-Dade Counties, Florida. The
unit includes waters within Everglades National Park (ENP), including
Florida Bay, in the vicinity of Everglades City, within the Cape
Romano-Ten Thousand Islands Aquatic Preserve (AP), and within the
portion of Rookery Bay AP south of SR-92. The boundaries match the
portion of Rookery Bay AP south of SR-92, and the Cape Romano-Ten
Thousand Islands Aquatic Preserve AP. The unit boundaries also closely
match the ENP boundaries with the following two exceptions: the unit
boundary connects points 55 and 57 as illustrated in the critical
habitat map that follows, which extend beyond the ENP boundary; and the
unit boundary is located inside the ENP boundary between points 77 and
2, omitting the northeast portion of the ENP. The boundary of the unit
is comprised of the following connected points, listed by point number
in the ID field, degrees North latitude, degrees West longitude, and
brief description of the boundary.
Table 2--List of Latitude and Longitude Boundary Points
------------------------------------------------------------------------
ID Latitude Longitude Description
------------------------------------------------------------------------
1................. 25.2527 -80.7988 Main Park Road (SR-9336)
at Nine Mile Pond.
2................. 25.2874 -80.5736 Everglades National Park
boundary.
3................. 25.2872 -80.4448 Everglades National Park
boundary at US-HWY 1.
4................. 25.2237 -80.4308 Everglades National Park
boundary at US-HWY 1.
5................. 25.1979 -80.4173 Everglades National Park
boundary at US-HWY 1.
6................. 25.1846 -80.3887 Everglades National Park
boundary at US-HWY 1.
7................. 25.1797 -80.3905 Everglades National Park
boundary at US-HWY 1.
8................. 25.1480 -80.4179 Everglades National Park
boundary at Intercoastal
Waterway (ICW).
9................. 25.1432 -80.4249 Everglades National Park
boundary at ICW.
10................ 25.1352 -80.4253 Everglades National Park
boundary at ICW.
11................ 25.1309 -80.4226 Everglades National Park
boundary at ICW.
12................ 25.1282 -80.4230 Everglades National Park
boundary at ICW.
13................ 25.1265 -80.4268 Everglades National Park
boundary at ICW.
14................ 25.1282 -80.4432 Everglades National Park
boundary at ICW.
15................ 25.0813 -80.4747 Everglades National Park
boundary at ICW.
16................ 25.0676 -80.4998 Everglades National Park
boundary at ICW.
17................ 25.0582 -80.5218 Everglades National Park
boundary at ICW.
18................ 25.0373 -80.5178 Everglades National Park
boundary at ICW.
19................ 25.0326 -80.5188 Everglades National Park
boundary at ICW.
20................ 25.0168 -80.5487 Everglades National Park
boundary at ICW.
21................ 25.0075 -80.5578 Everglades National Park
boundary at ICW.
22................ 24.9990 -80.5609 Everglades National Park
boundary at ICW near
Plantation.
23................ 24.9962 -80.5648 Everglades National Park
boundary at ICW.
24................ 24.9655 -80.6347 Everglades National Park
boundary at ICW.
25................ 24.9430 -80.6585 Everglades National Park
boundary at ICW.
26................ 24.9388 -80.6716 Everglades National Park
boundary at ICW.
27................ 24.9124 -80.7255 Everglades National Park
boundary at ICW.
28................ 24.9006 -80.7348 Everglades National Park
boundary at ICW.
29................ 24.8515 -80.8326 Everglades National Park
boundary at COLREG-72.
30................ 24.8730 -80.8875 Everglades National Park
boundary at Arsenic Bank
Light.
31................ 24.9142 -80.9372 Everglades National Park
boundary at Sprigger Bank
Light.
32................ 25.0004 -81.0221 Everglades National Park
boundary.
[[Page 45375]]
33................ 25.0723 -81.0859 Everglades National Park
boundary.
34................ 25.0868 -81.0858 Everglades National Park
boundary.
35................ 25.1567 -81.1620 Everglades National Park
boundary at Middle Cape
Sable.
36................ 25.2262 -81.2044 Everglades National Park
boundary.
37................ 25.3304 -81.1776 Everglades National Park
boundary at Little Shark
River.
38................ 25.4379 -81.1940 Everglades National Park
boundary.
39................ 25.5682 -81.2581 Everglades National Park
boundary.
40................ 25.7154 -81.3923 Everglades National Park
boundary at Pavillion
Key.
41................ 25.8181 -81.5205 Everglades National Park
boundary.
42................ 25.8326 -81.5205 Everglades National Park
boundary at Cape Romano--
Ten Thousand Islands
Aquatic Preserve.
43................ 25.8315 -81.7450 Rookery Bay Aquatic
Preserve boundary
(southwest corner).
44................ 25.9003 -81.7468 Rookery Bay Aquatic
Preserve boundary.
45................ 25.9030 -81.6907 Rookery Bay Aquatic
Preserve boundary.
46................ 25.9380 -81.6907 Rookery Bay Aquatic
Preserve boundary at SR-
92.
47................ 25.9378 -81.6834 Rookery Bay Aquatic
Preserve boundary at SR-
92.
48................ 25.9319 -81.6718 Rookery Bay Aquatic
Preserve boundary at SR-
92.
49................ 25.9330 -81.6508 Rookery Bay Aquatic
Preserve boundary at SR-
92.
50................ 25.9351 -81.6483 Rookery Bay Aquatic
Preserve boundary at SR-
92.
51................ 25.9464 -81.6433 Rookery Bay Aquatic
Preserve boundary at SR-
92.
52................ 25.9470 -81.6200 Cape Romano--Ten Thousand
Islands Aquatic Preserve
boundary.
53................ 25.9615 -81.6206 Cape Romano--Ten Thousand
Islands Aquatic Preserve
boundary.
54................ 25.9689 -81.6041 Cape Romano--Ten Thousand
Islands Aquatic Preserve
boundary.
55................ 25.9130 -81.4569 Cape Romano--Ten Thousand
Islands Aquatic Preserve
boundary.
56................ 25.8916 -81.4082 Everglades National Park
boundary west of
Everglades City.
57................ 25.8630 -81.3590 Everglades National Park
boundary east of
Everglades City.
58................ 25.8619 -81.2624 Everglades National Park
boundary.
59................ 25.8040 -81.2602 Everglades National Park
boundary.
60................ 25.8040 -81.2126 Everglades National Park
boundary.
61................ 25.7892 -81.2128 Everglades National Park
boundary.
62................ 25.7892 -81.1969 Everglades National Park
boundary.
63................ 25.7743 -81.1966 Everglades National Park
boundary.
64................ 25.7740 -81.1803 Everglades National Park
boundary.
65................ 25.7591 -81.1803 Everglades National Park
boundary.
66................ 25.7592 -81.1641 Everglades National Park
boundary.
67................ 25.7295 -81.1638 Everglades National Park
boundary.
68................ 25.7299 -81.1165 Everglades National Park
boundary.
69................ 25.7153 -81.1164 Everglades National Park
boundary.
70................ 25.7154 -81.1002 Everglades National Park
boundary.
71................ 25.6859 -81.0997 Everglades National Park
boundary.
72................ 25.6862 -81.0836 Everglades National Park
boundary.
73................ 25.6715 -81.0835 Everglades National Park
boundary.
74................ 25.6718 -81.0671 Everglades National Park
boundary.
75................ 25.6497 -81.0665 Everglades National Park
boundary.
76................ 25.6501 -81.0507 Everglades National Park
boundary.
77................ 25.6128 -81.0497 Everglades National Park
boundary.
------------------------------------------------------------------------
(c) Areas not included in critical habitat. Critical habitat does
not include the following particular areas where they overlap with the
areas described in paragraph (b) of this section:
(1) Pursuant to ESA section 3(5)(A)(i), all areas containing
existing (already constructed) federally authorized or permitted man-
made structures such as channels or canals maintained at depths greater
than 3 ft. at MLLW, boat ramps, docks, and marinas deeper than 3 ft. at
MLLW.
(2) Pursuant to ESA section 3(5)(A)(i), all waters identified as
existing (already constructed) federally authorized channels as
follows:
(i) Charlotte Harbor.
(ii) Ft. Myers Beach (Matanzas Pass).
(iii) Portions of the Gulf Intracoastal Waterway in the
Caloosahatchee River.
(d) Maps. Overview maps of designated critical habitat for the U.S.
DPS of smalltooth sawfish follow.
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[FR Doc. E9-21186 Filed 9-1-09; 8:45 am]
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