[Federal Register: February 6, 2008 (Volume 73, Number 25)]
[Proposed Rules]
[Page 6895-6919]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe08-18]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 226
[Docket No. 070801431-7787-01]
RIN 0648-AV35
Endangered and Threatened Species; Critical Habitat for
Threatened Elkhorn and Staghorn Corals
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to
designate critical habitat for elkhorn (Acropora palmata) and staghorn
(A. cervicornis) corals, which we listed as threatened under the
Endangered Species Act of 1973, as amended (ESA), on May 9, 2006. Four
specific areas are proposed for designation: the Florida unit, which
comprises approximately 3,301 square miles (8,671 sq km) of marine
habitat; the Puerto Rico unit, which comprises approximately 1,383
square miles (3,582 sq km) of marine habitat; the St. John/St. Thomas
unit, which comprises approximately 121 square miles (313 sq km) of
marine habitat; and the St. Croix unit, which comprises approximately
126 square miles (326 sq km) of marine habitat. We propose to exclude
one military site, comprising approximately 47 square miles (123 sq
km), because of national security impacts.
We are soliciting comments from the public on all aspects of the
proposal, including our identification and consideration of the
positive and negative economic, national security, and other relevant
impacts of the proposed designation, and the areas we propose to
exclude from the designation. A draft impacts report prepared pursuant
to section 4(b)(2) of the ESA in support of this proposal is also
available for public review and comment.
DATES: Comments on this proposal must be received by May 6, 2008.
Public hearings will be held; see SUPPLEMENTARY INFORMATION for dates
and locations.
ADDRESSES: You may submit comments, identified by the Regulation
Identifier Number (RIN) 0648-AV35, by any of the following methods:
Electronic Submissions: Submit all electronic public comments via
the
[[Page 6896]]
Federal eRulemaking Portal: http://www.regulations.gov.
Mail: Assistant Regional Administrator, Protected Resources
Division, NMFS, Southeast Regional Office, 263 13th Ave. South, St.
Petersburg, FL 33701.
Facsimile (fax) : 727-824-5309.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business Information or
otherwise sensitive or protected information.
NMFS will accept anonymous comments. Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
Public Hearing: See SUPPLEMENTARY INFORMATION for hearing dates and
locations.
FOR FURTHER INFORMATION CONTACT: Jennifer Moore or Sarah Heberling,
NMFS, at the address above or at 727-824-5312; or Marta Nammack, NMFS,
at 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
On May 9, 2006, we listed elkhorn and staghorn corals as threatened
under the ESA (71 FR 26852; May 9, 2006). At the time of listing, we
also announced our intention to propose critical habitat for elkhorn
and staghorn corals. We are proposing to designate critical habitat for
both species through one rule; due to their similar life histories,
distribution, threats, and conservation requirements, critical habitat
for these coral species is overlapping.
Elkhorn and Staghorn Coral Natural History
The following discussion of the life history and reproductive
biology of threatened corals is based on the best scientific data
available, including the Atlantic Acropora Status Review Report
(Acropora Biological Review Team, 2005), and additional information,
particularly concerning the genetics of these corals.
Acropora spp. are widely distributed throughout the Caribbean
(U.S.--Florida, Puerto Rico, U.S. Virgin Islands (U.S.V.I.), Navassa;
and Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British
Virgin Islands, Colombia, Costa Rica, Cuba, Dominica, Dominican
Republic, Grenada, Guadeloupe, Haiti, Honduras, Jamaica, Martinique,
Mexico, Netherlands Antilles, Nicaragua, Panama, St. Kitts and Nevis,
St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and
Venezuela). In general, elkhorn and staghorn corals have the same
geographic distribution, with few exceptions. The northern extent (Palm
Beach County, Florida) of staghorn coral occurrence is farther north
than that of elkhorn coral (Broward County, Florida). Staghorn coral
commonly grows in more protected, deeper water ranging from 5 to 20 m
in depth and has been found in rare instances to 60 m. Elkhorn coral
commonly grows in turbulent shallow water on the seaward face of reefs
in water ranging from 1 to 5 m in depth but has been found to 30 m
depth.
Elkhorn and staghorn corals were once the most abundant and most
important species on Caribbean coral reefs in terms of accretion of
reef structure. Relative to other corals, elkhorn and staghorn corals
have high growth rates that have allowed reef growth to keep pace with
past changes in sea level. Both species exhibit branching morphologies
that provide important habitat for other reef organisms. Environmental
influences (e.g., wave action, currents) result in morphological
variation (e.g., length, shape of branches) in both species.
Staghorn coral is characterized by staghorn antler-like colonies
with cylindrical, straight, or slightly curved branches. The diameter
of staghorn coral branches ranges from 1 to 4 cm, and tissue color
ranges from golden yellow to medium brown. The growing tips of staghorn
coral tend to be lighter or lack color. The linear growth rate for
staghorn coral has been reported to range from 3 to 11.5 cm/year.
Today, staghorn coral colonies typically exist as isolated branches and
small thickets, 0.5 to 1 m across in size, unlike the vast fields
(thickets) of staghorn found commonly during the 1970s.
Elkhorn coral is the larger species of Acropora found in the
Atlantic. Colonies are flattened to near round with frond-like
branches. Branches are up to 50 cm across and range in thickness from 2
to 10 cm, tapering towards the branch terminal. Like staghorn coral,
branches are white near the growing tip, and brown to tan away from the
growing area. The linear growth rate for elkhorn coral is reported to
range from 4 to 11 cm/year. Individual colonies can grow to at least 2
m in height and 4 m in diameter.
Elkhorn and staghorn corals require relatively clear, well-
circulated water and are almost entirely dependent upon sunlight for
nourishment. Unlike other coral species, neither acroporid species is
likely to compensate for long-term reductions in water clarity with
alternate food sources, such as zooplankton and suspended particulate
matter. Typical water temperatures in which Acropora spp. occur from 21
to 29 [deg]C, with the species being able to tolerate temperatures
higher than the seasonal maximum for a brief period of time (days to
weeks depending on the magnitude of the temperature elevation). The
species' response to temperature perturbations is dependent on the
duration and intensity of the event. Both acroporids are susceptible to
bleaching (loss of symbiotic algae) under adverse environmental
conditions.
Acropora spp. reproduce both sexually and asexually. Elkhorn and
staghorn corals do not differ substantially in their sexual
reproductive biology. Both species are broadcast spawners: male and
female gametes are released into the water column where fertilization
takes place. Additionally, both species are simultaneous
hermaphrodites, meaning that a given colony will contain both male and
female reproductive parts during the spawning season; however, an
individual colony or clone will not produce viable offspring. The
spawning season for elkhorn and staghorn corals is relatively short,
with gametes released on only a few nights during July, August, and/or
September. In most populations, spawning is synchronous after the full
moon during any of these 3 months. Larger colonies of elkhorn and
staghorn corals have much higher fecundity rates (Soong and Lang,
1992).
In elkhorn and staghorn corals, fertilization and development are
exclusively external. Embryonic development culminates with the
development of planktonic larvae called planulae. Little is known
concerning the settlement patterns of planula of elkhorn and staghorn
corals. In general, upon proper stimulation, coral larvae, whether
released from parental colonies or developed in the water column
external to the parental colonies (like Acropora spp.), settle and
metamorphose on appropriate substrates. Like most corals, elkhorn and
staghorn corals require hard, consolidated substrate, including
attached, dead coral skeleton, for their larvae to settle. Unlike most
other coral larvae, elkhorn (and presumably staghorn) planulae appear
to prefer settling on upper, exposed surfaces, rather than in dark,
cryptic ones, at least in a laboratory setting (Szmant and Miller,
2005).
Coral planula larvae experience considerable mortality (90 percent
or
[[Page 6897]]
more) from predation or other factors prior to settlement and
metamorphosis (Goreau, et al., 1981). Because newly settled corals
barely protrude above the substrate, juveniles need to reach a certain
size to reduce damage or mortality from impacts such as grazing,
sediment burial, and algal overgrowth. Recent studies examining early
survivorship indicated that lab cultured elkhorn coral settled onto
experimental limestone plates and placed in the field had substantially
higher survivorship than another spawning coral species, Montastraea
faveolata, and similar survivorship to brooding coral species (species
that retain developing larvae within the parent polyp until an advanced
stage) over the first 9 months following settlement (Szmant and Miller,
2005). This pattern corresponds to the size of planulae; elkhorn coral
eggs and larvae are much larger than those of Montastraea spp. Overall,
older recruits (i.e., those that survive to a size where they are
visible to the human eye, probably 1 to 2 years post-settlement) of
Acropora spp. appear to have similar growth and post-settlement
mortality rates observed in other coral species.
Studies of Acropora spp. from across the Caribbean confirm two
overall patterns of sexual recruitment: (1) Low juvenile densities
relative to other coral species; and (2) low juvenile densities
relative to the commonness of adults (Porter, 1987). This pattern
suggests that the composition of the adult population is based upon
variable recruitment. To date, the settlement rates for Acropora spp.
have not been quantified.
Few data on the genetic population structure of elkhorn and
staghorn corals exist; however, due to recent advances in technology,
the genetic population structure of the current, depleted population is
beginning to be characterized. Baums, et al. (2005) examined the
genetic exchange in elkhorn coral by sampling and genotyping colonies
from 11 locations throughout its geographic range using microsatellite
markers. Results indicate that elkhorn populations in the eastern
Caribbean (St. Vincent and the Grenadines, U.S.V.I., Curacao, and
Bonaire) have experienced little or no genetic exchange with
populations in the western Caribbean (Bahamas, Florida, Mexico, Panama,
Navassa, and Mona Island). Mainland Puerto Rico is an area of mixing
where elkhorn populations show genetic contribution from both regions,
though it is more closely connected with the western Caribbean. Within
these regions, the degree of larval exchange appears to be
asymmetrical, with some locations being entirely self-recruiting and
some receiving immigrants from other locations within their region.
Vollmer and Palumbi (2007) examined multilocus sequence data from
276 colonies of staghorn coral spread across 22 populations from 9
regions in the Caribbean, Florida, and the Bahamas. Their data were
consistent with the Western-Eastern Caribbean subdivision observed in
elkhorn coral populations by Baums, et al. (2005). Additionally, the
data indicated that regional populations of staghorn separated by
greater than 500 km are genetically differentiated and that gene flow
across the greater Caribbean is low in staghorn coral. This is
consistent with studies conducted on other Caribbean corals showing
that gene flow is restricted at spatial scales over 500 km (Fukami, et
al., 2004; Baums, et al., 2005; Brazeau, et al., 2005). Furthermore,
fine-scale genetic differences were observed among reefs separated by
as little as 2 km, suggesting that gene flow in staghorn corals may be
limited over much smaller spatial scales (Vollmer and Palumbi, 2007).
Both acroporid population studies suggest that no population is
more or less significant to the status of the species. Staghorn coral
populations on one reef exhibit limited ability to seed another
population separated by large distances. Elkhorn coral populations are
genetically related over larger geographic distances; however, because
sexual recruitment levels are extremely low, re-seeding potential is
also minimal. This regional population structure suggests that
conservation should be implemented at local to regional scales because
relying on long-distance larval dispersal as a means of recovery may be
unreliable and infeasible. Therefore, protecting source populations, in
relatively close proximity to each other (< 500 km), is likely the more
effective conservation alternative (Vollmer and Palumbi, 2007).
Elkhorn and staghorn corals, like most coral species, also
reproduce asexually. Asexual reproduction involves fragmentation,
wherein colony pieces or fragments break from a larger colony and re-
attach to hard, consolidated substrate to form a new colony.
Reattachment occurs when: (1) Live coral tissue on the fragment
overgrows suitable substrate where it touches after falling; or (2)
encrusting organisms settle on the dead basal areas of the fragment and
cement it to the adjacent substrate (Tunnicliffe, 1981). Fragmentation
results in multiple colonies (ramets) that are genetically identical,
while sexual reproduction results in the creation of new genotypes
(genets). Fragmentation is the most common means of forming new elkhorn
and staghorn coral colonies in most populations and plays a major role
in maintaining local populations when sexual recruitment is limited.
The larger size of fragments compared to planulae may result in higher
survivorship after recruitment (Jackson, 1977, as cited by Lirman,
2000). Also unlike sexual reproduction, which is restricted seasonally
for elkhorn coral (Szmant, 1986, as cited by Lirman, 2000),
fragmentation can take place year-round.
Critical Habitat Identification and Designation
Critical habitat is defined by section 3 of the ESA (and further by
50 CFR 424.02(d)) 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 4 of this Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this Act, upon a
determination by the Secretary that such areas are essential for the
conservation of the species.'' This definition provides a step-wise
approach to identifying areas that may be designated as critical
habitat for listed corals.
Geographical Areas Occupied by the Species
The best scientific data available show the current geographical
area occupied by both elkhorn and staghorn corals has remained
unchanged from their historical ranges. In other words, there is no
evidence of range constriction for either species. ``Geographical areas
occupied'' in the definition of critical habitat is interpreted to mean
the current range of the species and not every discrete location on
which individuals of the species physically are located (45 FR 13011;
February 27, 1980). In general, elkhorn and staghorn corals have the
same distribution, with few exceptions, and are widely distributed
throughout the Caribbean. The Status of Coral Reefs in the Western
Atlantic: Results of Initial Surveys, Atlantic and Gulf Rapid Reef
Assessment (AGRRA) Program (Lang, 2003) provides results (1997-2004) of
a regional systematic survey of corals, including Acropora spp., from
many locations throughout the
[[Page 6898]]
Caribbean. AGRRA data (1997-2004) indicate that the historic range of
both species remains intact; staghorn coral is rare throughout the
range (including areas of previously known dense occurrence); and
elkhorn coral occurs in moderation. We also collected data and
information pertaining to the geographical area occupied by these
species at the time of listing by partnering with our Southeast
Fisheries Science Center (SEFSC), NOAA National Centers for Coastal
Ocean Science Biogeography Team, and the U.S. Geological Survey of the
Department of the Interior. These partnerships resulted in the
collection of geographic information system (GIS) and remote sensing
data (e.g., benthic habitat data, water depth, and presence/absence
location data for Acropora spp. colonies), which we supplemented with
relevant information collected from the public during comment periods
and workshops held throughout the ESA listing process.
In Southeast Florida, staghorn coral has been documented along the
east coast as far north as Palm Beach County in deeper (16 to 30 m)
water (Goldberg, 1973) and is distributed south and west throughout the
coral and hardbottom habitats of the Florida Keys (Jaap, 1984), through
Tortugas Bank. Elkhorn coral has been reported as far north as Broward
and Miami-Dade Counties, with significant reef development and
framework construction by this species beginning at Ball Buoy Reef in
Biscayne National Park, extending discontinuously southward to the Dry
Tortugas.
In Puerto Rico, elkhorn and staghorn corals have been reported in
patchy abundance around the main island and isolated offshore
locations. In the late 1970s, both elkhorn and staghorn corals occurred
in dense and well developed thickets on many reefs off the northeast,
east, south, west and northwest coast, and also the offshore islands of
Mona, Vieques and Culebra (Weil, et al., unpublished data). Dense, high
profile, monospecific thickets of elkhorn and staghorn corals have been
documented in only a few reefs along the southwest shore of the main
island and isolated offshore locations (Weil, et al., unpublished data)
though recent monitoring data for the presence of coral are incomplete
in coverage around the islands. Further, the species have been recently
documented along the west (e.g., Rincon) and northeast coasts (e.g., La
Cordillera). Additionally, large stands of dead elkhorn currently exist
on the fringing coral reefs along the south shoreline (e.g., Punta
Pic[uacute]a, Punta Miquillo, R[iacute]o Grande, Gu[aacute]nica, La
Parguera, Mayaguez). It appears that elkhorn and staghorn are rare on
the north shore of Puerto Rico; however, there is a thin strip of
hardbottom substrate on that shore, which may be supporting additional
unrecorded colonies of elkhorn or staghorn.
The U.S.V.I. also supports populations of elkhorn and staghorn
corals, particularly at Buck Island Reef National Monument. St. Croix
has coral reef and colonized hardbottom surrounding the entire island.
Data from the 1980's indicate that the species were present along the
north, eastern, and western shores at that time. The GIS data we
compiled indicate the presence of elkhorn and staghorn currently along
the north, northeastern, south, and southeastern shores of St. Croix.
Monitoring data are incomplete, and it is possible that unrecorded
colonies are present along the western, northwestern, or southwestern
shores. For the islands of St. Thomas and St. John, there are limited
GIS presence data available for elkhorn and staghorn corals. However,
Grober-Dunsmore, et al. (2006) show that from 2001-2003, elkhorn
colonies were distributed in many locations around the island of St.
John. Additionally, the data we have indicate coral reef and coral-
colonized hard bottom surrounding each of these islands as well as the
smaller offshore islands. Again, it is possible that unrecorded
colonies are present in these areas.
Navassa Island is a small, uninhabited, oceanic island
approximately 50 km off the southwest tip of Haiti managed by U.S. Fish
and Wildlife Service (FWS) as one component of the Caribbean Islands
National Wildlife Refuge (NWR). Both acroporid species are known from
Navassa, with elkhorn apparently increasing in abundance and staghorn
rare (Miller and Gerstner, 2002).
Last, there are two known colonies of elkhorn at the Flower Garden
Banks National Marine Sanctuary (FGBNMS), located 100 mi (161 km) off
the coast of Texas in the Gulf of Mexico. The FGBNMS is a group of
three areas of salt domes that rise to approximately 15 m water depth
and are surrounded by depths from 60 to 120 m. The FGBNMS is regularly
surveyed, and the two known colonies, which were only recently
discovered and are considered to be a potential range expansion, are
constantly monitored.
Our regulations at 50 CFR 424.12(h) state: ``Critical habitat shall
not be designated within foreign countries or in other areas outside of
United States jurisdiction.'' Although the geographical area occupied
by elkhorn and staghorn corals includes coastal waters of many
Caribbean and Central and South American nations, we are not proposing
these areas for designation. The geographical area occupied by listed
coral species which is within the jurisdiction of the United States is
therefore limited to four counties in the State of Florida (Palm Beach
County, Broward County, Miami-Dade County, and Monroe County), FGBNMS,
and the U.S. territories of Puerto Rico, U.S.V.I, and Navassa Island.
Physical or Biological Features Essential for Conservation (Primary
Constituent Elements)
Within the geographical area occupied, critical habitat consists of
specific areas on which are found those physical or biological features
essential to the conservation of the species (hereafter also referred
to as essential features or ``Primary Constituent Elements'' or
``PCEs''). 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.''
Further, our regulations at 50 CFR 424.12(b) for designating critical
habitat state that physical and biological features that are essential
to the conservation of a given species and that may require special
management considerations or protection may include, but are not
limited to: (1) Space for individual and population growth, and for
normal behavior; (2) food, water, air, light, minerals, or other
nutritional or physiological requirements; (3) cover or shelter; (4)
sites for breeding, reproduction, rearing of offspring, germination, or
seed dispersal; and generally, (5) habitats that are protected from
disturbance or are representative of the historic geographical and
ecological distributions of a species. These regulations state that we
shall focus on essential features within the specific areas considered
for designation.
As stated in the Atlantic Acropora Status Review Report (Acropora
Biological Review Team, 2005),
there are several implications of the current low population sizes
of Acropora spp. throughout much of the wider Caribbean. First, the
number of sexual recruits to a population will be most influenced by
larval availability, recruitment, and early juvenile mortality.
Because corals cannot move and are dependent upon external
fertilization in order to produce larvae, fertilization success
declines greatly as adult density declines;
[[Page 6899]]
this is termed an Allee effect (Levitan 1991). To compound the
impact, Acropora spp., although hermaphroditic, do not effectively
self-fertilize; gametes must be outcrossed with a different genotype
to form viable offspring. Thus, in populations where fragmentation
is prevalent, the effective density (of genetically distinct adults)
will be even lower than colony density. It is highly likely that
this type of recruitment limitation (Allee effect) is occurring in
some local elkhorn and staghorn populations, given their state of
drastically reduced abundance/density. Simultaneously, when adult
abundances of elkhorn and staghorn corals are reduced, the source
for fragments (to provide for asexual recruitment) is also
compromised. These conditions imply that once a threshold level of
population decline has been reached (i.e., a density where
fertilization success becomes negligible) the chances for recovery
are low.
Thus, we determined that based on available information, facilitating
increased incidence of successful sexual and asexual reproduction is
the key objective to the conservation of these species. We then turned
to determining the physical or biological features essential to this
conservation objective.
Currently, sexual recruitment of elkhorn and staghorn corals is
limited in some areas and absent in most. Compounding the difficulty of
documenting sexual recruitment is the difficulty of visually
distinguishing some sexual recruits from asexual recruits (Miller, et
al., 2007). Settlement of larvae or attachment of fragments is often
unsuccessful, given limited amounts of appropriate habitat due to the
shift in benthic community structure from coral-dominated to algae-
dominated that has been documented since the 1980s (Hughes and Connell,
1999). Appropriate habitat for elkhorn and staghorn coral recruits to
attach and grow consists of hard, consolidated substrate. In addition
to being limited, the availability of appropriate habitat for
successful sexual and asexual reproduction is susceptible to becoming
reduced further because of such factors as fleshy macroalgae
overgrowing and preempting the space available for larval settlement,
recruitment, and fragment reattachment. Similarly, sediment
accumulating on suitable substrate impedes sexual and asexual
reproductive success by preempting available substrate and smothering
coral recruits. Exacerbating the effect of sedimentation is the
presence of turf algae, which traps the sediment, leading to greater
amounts of accumulations as compared to bare substrate alone. As
described above, features that will facilitate successful larval
settlement and recruitment, and reattachment of asexual fragments, are
essential to the conservation of elkhorn and staghorn corals. Without
successful recruits, the species will not increase in abundance,
distribution, and genetic diversity.
Elkhorn and staghorn corals, like most corals, require hard,
consolidated substrate (i.e., attached, dead coral skeleton or
hardbottom) for their larvae to settle or fragments to reattach. The
type of substrate available directly influences settlement success and
fragment survivorship. Lirman (2000) demonstrated this in a transplant
experiment using elkhorn coral fragments created by a ship grounding.
Fifty fragments were collected within 24 hours of fragmentation and
assigned to one of the following four types of substrate: (1)
Hardbottom (consolidated carbonate framework), (2) rubble (loose, dead
pieces of elkhorn and staghorn corals), (3) sand, and (4) live coral.
The results showed that the survivorship of transplanted fragments was
significantly affected by the type of substrate, with fragment
mortality being the greatest for those transplanted to sandy bottom (58
percent loss within the first month and 71 percent after 4 months).
Fragments placed on live adult elkhorn coral colonies fused to the
underlying tissue and did not experience any tissue loss; and fragments
placed on rubble and hardbottom substrates showed high survivorship.
Unlike fragments, coral larvae cannot attach to living coral
(Connell, et al., 1997). Larvae can settle and attach to dead coral
skeleton (Jordan-Dahlgren, 1992; Bonito and Grober-Dunsmore, 2006) and
may settle in particular areas in response to chemical cues from
certain species of crustose coralline algae (CCA) (Morse, et al., 1996;
Heyward and Negri, 1999; Harrington and Fabricius, 2004). While algae,
including CCA and fleshy macroalgae, is a natural component of healthy
reef ecosystems, the recent increase in the dominance of fleshy
macroalgae as major space-occupiers on many Caribbean coral reefs
impedes the recruitment of new corals. This shift in benthic community
structure (from the dominance of stony corals to that of fleshy algae)
on Caribbean coral reefs is generally attributed to the greater
persistence of fleshy macroalgae under reduced grazing regimes due to
human overexploitation of herbivorous fishes (Hughes, 1994) and the
regional mass mortality of the herbivorous long-spined sea urchin in
1983-84. Further, impacts to water quality (principally nutrient input)
coupled with low herbivore grazing are also believed to enhance fleshy
macroalgal productivity. Fleshy macroalgae are able to colonize dead
coral skeleton and other available substrate, preempting space
available for coral recruitment.
The persistence of fleshy macroalgae under reduced grazing regimes
has impacts on CCA growth, which may reduce settlement of coral larvae
as CCA is thought to provide chemical cues for settlement. Most CCA are
susceptible to fouling by fleshy algae, particularly when herbivores
are absent (Steneck, 1986). Patterns observed in St. Croix, U.S.V.I.,
also indicate a strong positive correlation between CCA abundance and
herbivory (Steneck, 1997). A study in which Miller, et al. (1999) used
cages to exclude large herbivores from the study site resulted in
increased cover of both turf algae and macroalgae, and cover of CCA
decreased. The response of CCA to the experimental treatment persisted
for 2 months following cage removal (Miller, et al., 1999).
Additionally, following the mass mortality of the urchin Diadema
antillarum, significant increases in cover of fleshy and filamentous
algae occurred with parallel decreases in cover of CCA (de Ruyter van
Steveninck and Bak, 1986; Liddel and Ohlhorst, 1986). The ability of
fleshy macroalgae to affect growth and survival of CCA has indirect,
yet important, impacts on the ability of coral larvae to successfully
settle and recruit.
Several studies show that coral recruitment tends to be greater
when algal biomass is low (Rogers, et al., 1984; Hughes, 1985; Connell,
et al., 1997; Edmunds, et al., 2004; Birrell, et al., 2005; Vermeij,
2006). In addition to preempting space for coral larvae settlement,
many fleshy macroalgae produce secondary metabolites with generalized
toxicity, which also may inhibit settlement of coral larvae (Kuffner
and Paul, 2004). Furthermore, algal turfs can trap sediments (Eckman,
et al., 1989; Kendrik, 1991; Steneck, 1997; Purcell, 2000; Nugues and
Roberts, 2003; Wilson, et al., 2003; Purcell and Bellwood, 2001), which
then creates the potential for algal turfs and sediments to act in
combination to hinder coral settlement (Nugues and Roberts, 2003;
Birrell, et al., 2005). These turf algae sediment mats also can
suppress coral growth under high sediment conditions (Nugues and
Roberts, 2003) and may gradually kill the marginal tissues of stony
corals with which they come into contact (Dustan, 1977, 1999, as cited
by Roy, 2004).
Sediments enter the reef environment through many processes that
are natural or anthropogenic in origin, including erosion of coastline,
resuspension of bottom sediments, terrestrial run-off, and nearshore
dredging for coastal construction projects and navigation
[[Page 6900]]
purposes. The rate of sedimentation affects reef distribution,
community structure, growth rates, and coral recruitment (Dutra, et
al., 2003). Accumulation of sediment can smother living corals, dead
coral skeleton, and exposed hardbottom. Sediment accumulation on dead
coral skeletons and exposed hardbottom reduces the amount of available
substrate suitable for coral larvae settlement and fragment
reattachment (Rogers, 1990; Babcock and Smith, 2002). Accumulation of
sediments is also a major cause of mortality in coral recruits
(Fabricius, et al., 2003). In some instances, if mortality of coral
recruits does not occur under heavy sediment conditions, then settled
coral planulae may undergo reverse metamorphosis and not survive (Te,
1992). Sedimentation, therefore, impacts the health and survivorship of
all life stages (i.e., fecund adults, fragments, larvae, and recruits)
of elkhorn and staghorn corals.
Based on the key conservation objective we have identified to date,
the natural history of elkhorn and staghorn corals, and their habitat
needs, the physical or biological feature of elkhorn and staghorn
corals' habitat essential to their conservation is substrate of
suitable quality and availability, in water depths from the mean high
water (MHW) line to 30 m, to support successful larval settlement,
recruitment, and reattachment of fragments. For purposes of this
definition, ``substrate of suitable quality and availability'' means
consolidated hardbottom or dead coral skeleton that is free from fleshy
macroalgae cover and sediment cover. This feature is essential to the
conservation of these two species due to the extremely limited
recruitment currently being observed.
We determined that no other environmental features are appropriate
or necessary for defining critical habitat for the two corals. Other
than the substrate PCE, we cannot conclude that any other sufficiently
definable feature of the environment is essential to the corals'
conservation. Other features of the corals' environment, such as water
temperature, are more appropriately viewed as sources of impacts or
stressors that can harm the corals, rather than habitat features that
provide a conservation function. Therefore, these stressors would not
be analyzed as factors that may contribute to a determination whether
the corals' critical habitat is likely to be destroyed or adversely
modified. Some environmental features are also subsumed within the
definition of the substrate PCE; for instance, substrate free from
macroalgal cover would encompass water quality sufficiently free of
nutrients.
Specific Areas Within the Geographical Area Occupied by the Species
The definition of critical habitat further instructs us to identify
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 governmental
unit in which it is located (50 CFR 424.12(c)). As discussed below, we
determined that specific areas in FGBNMS and Navassa National Wildlife
Refuge that contain the PCE do not otherwise meet the definition of
critical habitat. Hence, in this section we only describe our
identification of the specific areas we are proposing to include in
this designation.
In addition to information obtained from the public, we partnered
with SEFSC, NOAA Biogeography Team, and U.S. Geological Survey to
obtain GIS and remote sensing data (e.g., benthic habitat data, water
depth) to compile existing data to identify and map areas that may
contain the identified PCE. The following are the major datasets upon
which we relied. NOAA's National Ocean Service (NOS) and the Florida
Fish and Wildlife Research Institute completed The Benthic Habitat
Mapping of Florida Coral Reef Ecosystems using a series of 450 aerial
photographs collected in 1991-1992. For this mapping effort, coral
ecosystem ecologists outlined the boundaries of specific habitat types
by interpreting color patterns on the photographs. Benthic habitats
were classified into four major categories--corals, seagrasses,
hardbottom, and bare substrate--and 24 subcategories, such as sparse
seagrass and patch reef. Each habitat type was groundtruthed in the
field by divers to validate the photo-interpretation of the aerial
photography. Habitat boundaries were georeferenced and digitized to
create computer maps. A similar method was followed by NOS using 1999
aerial imagery in developing the Benthic Habitat Mapping of Puerto Rico
and the U.S.V.I.
Using GIS software, we extracted all areas that could be considered
potential recruitment habitat, including hardbottom and coral. The
benthic habitat information assisted in identifying any major gaps in
the distribution of the substrate PCE. Given uncertainties in the age
and resolution of the data, we were unable to identify smaller,
discrete specific areas that contained the PCE rather than large,
continuous areas. Thus, we concluded that, based upon the best
available information, although the PCE is unevenly dispersed
throughout the ranges of the species, no major gaps existed in the
distribution. We further limited the specific areas to the maximum
depth of occurrence of the two corals (i.e., 30 m). The 30-m contour
was extracted from the National Geophysical Data Center Coastal Relief
Model for Puerto Rico & Virgin Islands, and Florida. Because Puerto
Rico and the U.S.V.I. are islands, the contours yielded continuous
closed polygons. However, because the two species only occur off
specific counties in Florida, we used additional boundaries to close
the polygons. The Florida Area consists of all waters contained by the
boundary beginning at the MHW line at the north boundary of Palm Beach
County; then due east to the 30-m contour; then following the 30-m
contour to the intersection with the FKNMS boundary northeast of the
Dry Tortugas; then following the FKNMS boundary to the intersection
with the COLREGS line (see 33 CFR 80.727, 730, 735, and 740) for
Florida Bay; then following the COLREGS line southeast to the
intersection with Long Key; then following the COLREGS line and MHW
line returning to the beginning point. The COLREGS line separates
inland waters from marine waters. Also included are the waters in two
shoals southwest of the Dry Tortugas bounded by the 30-m contour.
Using the above procedure and consistent with our regulations (50
CFR 424.12(c)), we identified four ``specific areas'' and a few small
adjacent areas (separated from main areas by water depth greater than
30 m) within the geographical area occupied by the species, at the time
of listing, that contain the PCE. These areas comprise all waters in
the depths of 30 m and shallower to the MHW or COLREG line off: (1)
Palm Beach, Broward, Miami-Dade, and Monroe Counties, including the
Marquesas Keys and the Dry Tortugas, Florida; (2) Puerto Rico and
associated Islands; (3) St. John/St. Thomas, U.S.V.I.; and (4) St.
Croix, U.S.V.I.) (see maps). Within these specific areas, the PCE
consists of consolidated hardbottom or dead coral skeleton that are
free from fleshy macroalgae cover and sediment cover. The PCE can be
found unevenly dispersed throughout these four areas due to trends in
macroalgae coverage, and naturally occurring unconsolidated sediment
and seagrasses dispersed within the reef ecosystem. A larger
[[Page 6901]]
number of smaller specific areas could not be identified because the
submerged nature of the PCE, the limits of available information on the
distribution of the PCE, and limits on mapping methodologies make it
infeasible to define the specific areas containing the PCE more finely
than described herein. Further, based on data about their historical
distributions, the corals are capable of successfully recruiting and
attaching to available substrate anywhere within the boundaries of the
four specific areas. Given these species' reduced abundances, the four
specific areas were identified to include all available potential
settling substrate within the 30 m contour to maximize the potential
for successful recruitment and population growth.
The PCE is not likely to be present in natural sites covered with
loose sediment, fleshy macroalgal covered hardbottom, or seagrasses.
Additionally, existing man-made structures such as aids-to-navigation
(ATONs), artificial reefs, boat ramps, docks, pilings, maintained
channels or marinas do not provide the PCE that is essential to the
species' conservation. Substrate within the proposed critical habitat
boundaries that do not contain the PCE are not part of the designation.
Federal actions, or the effects thereof, limited to these areas would
not trigger section 7 consultation under the ESA, unless they may
affect the species and/or the PCE in adjacent critical habitat. As
discussed here and in the supporting impacts analysis, given the
precise definition of the proposed PCE, determining whether an action
may affect the feature 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. At the present time, the range of these species has not been
constricted, and we have not identified any areas outside the
geographical area occupied by the species that are essential for their
conservation. Therefore, we are not proposing to designate any
unoccupied areas for elkhorn and staghorn corals.
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 that ``may require special management
considerations or protection.'' A few courts have interpreted aspects
of this statutory requirement, and the plain language 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. DOI, 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, 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 PCE proposed in this
document 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
PCE, we recognized that the feature in its present condition must be
the basis for a finding that it is essential to the corals'
conservation. In addition, the needs for management evaluated in (a)
and (b) were limited to managing the feature for the conservation of
the species. In evaluating whether the PCE meets 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 then evaluated whether the PCE met the ``may
require'' provision separately for each of the four ``specific areas''
proposed for designation, as well as Navassa Island and FGBNMS
(discussed later), as management and protection requirements can vary
from area to area based on such factors as the legal authorities
applicable to areas and the location of the area within the occupied
range.
Suitable habitat available for larval settlement and recruitment,
and asexual fragment reattachment, of these coral species, is
particularly susceptible to impacts from human activity because of the
shallow water depth range (MHW to 30 m) in which elkhorn and staghorn
corals commonly grow. The proximity of this habitat to coastal areas
subject this feature to impacts from multiple activities including, but
not limited to, dredging and disposal activities, stormwater run-off,
coastal and maritime construction, land development, wastewater and
sewage outflow discharges, point and non-point source pollutant
discharges, fishing, placement of large vessel anchorages, and
installation of submerged pipelines or cables. The impacts from these
activities, combined with those from natural factors (e.g., major storm
events), significantly affect the quality and quantity of available
substrate for these threatened species to successfully sexually and
asexually reproduce. We concluded that the PCE is currently and will
likely continue to be negatively impacted by some or all of these
factors in all four specific areas.
Overfishing of herbivorous fishes and the mass die-off of long-
spined sea urchin Diadema antillarum are considered two of the primary
contributing factors to the recent shift in benthic community structure
from the dominance of stony corals to that of fleshy macroalgae on
Caribbean coral reefs. In the absence of fish and urchin grazing or at
very low grazing pressures,
[[Page 6902]]
coral larvae, algae, and numerous other epibenthic organisms settle in
high numbers, but most young, developing coral larvae are rapidly
outcompeted for space, and their mortality levels are high (Sammarco,
1985). The weight of evidence suggests that competition between algae
and corals is widespread on coral reefs and is largely mediated by
herbivory (McCook, et al., 2001).
An additional factor contributing to the dominance of fleshy
macroalgae as major space-occupiers on many Caribbean coral reefs is
nutrient enrichment. Nutrients are added to coral reefs from both point
sources (readily identifiable inputs where pollutants are discharged to
receiving surface waters from a pipe or drain) and non-point sources
(inputs that occur over a wide area and are associated with particular
land uses). Anthropogenic sources of nutrients include sewage,
stormwater and agricultural runoff, river discharge, and groundwater;
however, natural oceanographic sources like internal waves and
upwelling also distribute nutrients on coral reefs. Coral reefs have
been considered to be generally nutrient-limited systems, meaning that
levels of accessible nitrogen and phosphorus limit the rates of
macroalgae growth. When nutrient levels are raised in such a system,
growth rates of fleshy macroalgae can be expected to increase, and this
can yield imbalance and changes in community structure.
The anthropogenic source routes for nutrients may also bring
additional sediments into the coral reef environment. Sources of
sediment include erosion of coastline, resuspension of bottom
sediments, terrestrial run-off (following clearing of mangroves and
deforestation of hillsides), beach renourishment, and nearshore
dredging and disposal for coastal construction projects and for
navigation purposes. Sediment deposition and accumulation affect the
overall amount of suitable substrate available for larval settlement,
recruitment, and fragment reattachment (Babcock and Davies, 1991), and
both sediment composition and deposition affect the survival of
juvenile corals (Fabricius, et al., 2003).
The major category of habitat-related activities that may affect
the PCE for the two listed corals is water quality management.
Activities within this category have the potential to negatively affect
the PCE for elkhorn and staghorn corals by altering the quality and
availability of suitable substrate for larval settlement, recruitment,
and fragment reattachment. Nutrient enrichment, via sewage, stormwater
and agricultural runoff, river discharge, and groundwater, is a major
factor contributing to this shift in benthic community structure and
preemption of available substrate suitable for larval settlement,
recruitment, and asexual fragment reattachment. Additionally,
sedimentation resulting from land-use practices and from dredging and
disposal activities in all four specific areas reduces the overall
availability and quality of substrate suitable for successful sexual
and asexual reproduction by the two acroporid corals. Thus, the PCE
currently needs and will likely continue to need special management or
protection.
Although they fall within U.S. jurisdiction and may contain the
PCE, we are not proposing to include FGBNMS and Navassa National
Wildlife Refuge in our critical habitat designation, because we do not
believe the PCE in these areas requires special management
considerations or protections. Both FGBNMS and Navassa Island are
remote marine protected areas and are not currently exposed to the
negative impacts and conditions needing management discussed for the
other areas above. Additionally, based on available information, we do
not expect the PCE found within these two protected areas to experience
negative impacts from human or natural sources that would diminish the
feature's conservation value to the two coral species.
Activities That May Be Affected
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 wide variety of
activities may affect critical habitat and, 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 disposal, beach renourishment, large vessel anchorages, submarine
cable/pipeline installation and repair, oil and gas exploration,
pollutant discharge, and oil spill prevention and response. Notably,
all the activities identified that may affect the critical habitat may
also affect the species themselves, if present within the action area
of a proposed Federal action.
We believe this proposed critical habitat designation will provide
Federal agencies, private entities, and the public with clear
notification of critical habitat for elkhorn and staghorn corals 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
consultation with NMFS is needed given the specific definition of the
PCE above. 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 coral species (16 U.S.C.
1533(a)(3)(B)). The legislative history to this provision explains:
``The conferees would expect the [Secretary] to assess
an INRMP's potential contribution to species conservation, giving
due regard to those habitat protection, maintenance, and improvement
projects and other related activities specified in the plan that
address the particular conservation and protection needs of the
species for which critical habitat would otherwise be proposed.
Consistent with current practice, the Secretary would establish
criteria that would be used to determine if an INRMP benefits the
listed species for which critical habitat would be proposed''
(Conference Committee report, 149 Cong. Rec. H. 10563; November 6,
2003).
No areas within the specific areas being proposed for designation
are covered by relevant INRMPs. Although Naval Air Station Key West
(NASKW) is within the specific areas being proposed for designation,
the current INRMP was adopted in 2001 and does not address listed
corals, nor corals in general. NASKW is in the process of updating the
2001 INRMP and has issued a draft of the document to NMFS for review.
If the draft INRMP were to become final and provide a benefit to the
two corals as described above, then we would not designate critical
habitat within the boundaries covered by the INRMP. NASKW is, however,
being proposed for exclusion pursuant to section 4(b)(2), as explained
below.
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 in that they contain the physical feature
[[Page 6903]]
essential to the corals' conservation that may require special
management considerations or protection. Before including areas in a
designation, section 4(b)(2) of the ESA requires the Secretary to take
into consideration the economic impact, impact on national security,
and any other relevant impacts of designation of any particular area.
Additionally, the Secretary has the discretion to exclude any area from
designation if he determines 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. The Secretary 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 Draft Section 4(b)(2) Report, first by considering
economic, national security, and other relevant impacts that we
projected would result from including each of the four specific areas
in the proposed critical habitat designation. This consideration
informed our decision on whether to exercise our discretion to propose
excluding 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 is 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 four
specific critical habitat areas into smaller units, we treated these
areas 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. One 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 requirement. 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.
Additional impacts of designation include state and local protections
that may be triggered as a result of designation, and positive impacts
that may arise from conservation of the species and their habitat, and
education of the public to the importance of an area for species
conservation.
A Draft ESA 4(b)(2) Report describes the impacts analysis in detail
(NMFS, 2007). The report describes the projected future Federal
activities that would trigger section 7 consultation requirements
because they may affect the PCE. Additionally, the report describes the
project modifications we identified that may reduce impacts to the PCE,
and states whether the modifications are more likely to be solely a
result of the critical habitat designation or co-extensive with another
regulation, including the ESA listing of the species. The report also
identifies the potential national security and other relevant impacts
that may arise due to the proposed critical habitat designation. This
report is available on NMFS' Southeast Region Web site at http://sero.nmfs.noaa.gov/pr/esa/acropora.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 described later.
Because elkhorn and staghorn corals are newly listed and we lack a
lengthy consultation history for these species, we needed to make
assumptions about the types of future Federal activities that might
require section 7 consultation under the ESA. We examined the
consultation record over the last 10 years, as compiled in our Public
Consultation Tracking System (PCTS) database, to identify types of
Federal activities that have the potential to adversely affect elkhorn
or staghorn coral critical habitat. We request Federal action agencies
to provide us with information on future consultations if our
assumptions omitted any future actions likely to affect the proposed
critical habitat. We identified 13 categories of activities conducted
by 7 Federal action agencies: Airport repair and construction;
anchorages; construction of new aids to navigation; beach nourishment
and bank stabilization; coastal construction; discharges to navigable
waters; dredging and disposal; fishery management; maintenance
construction; maintenance dredging and disposal; military installation
management; resource management; and development or modification of
water quality standards. Notably, all categories of projected future
actions that may trigger consultation because they have the potential
to adversely affect the PCE also have the potential to adversely affect
the corals themselves. There are no categories of activities that would
trigger consultation on the basis of the proposed critical habitat
designation alone. However, it is feasible that a specific future
project within a category of activity would have impacts on critical
habitat but not on the species. Because the total surface area covered
by the proposed PCE (although unquantified) is far larger than the
total surface area on which the corals (again unquantified) currently
occur, it is likely there will be more consultations with impacts on
critical habitat than on the species. Nonetheless, it was impossible to
determine how many of those projects there may be over the 10-year
horizon of our impacts analysis.
To avoid underestimating impacts, we assumed that all of the
projected future actions in these categories will require formal
consultations for estimation of both administrative and project
modification costs. This assumption likely results in an overestimation
of the number of future formal consultations.
We next considered the range of modifications we might seek for
these activities to avoid adverse modification of elkhorn and staghorn
coral critical habitat. We identified 13 potential project
modifications that we may require to reduce impacts to the PCE through
section 7 consultation under the ESA. To be conservative in estimating
impacts, we assumed that project modifications would be required to
address adverse effects from all projected future agency actions
requiring consultation. Although we made the assumption that all
potential project modifications would be required by NMFS, not all of
the modifications
[[Page 6904]]
identified for a specific category of activity would be necessary for
an individual project, so we were unable to identify the exact
modification or combinations of modifications that would be required
for all future actions.
We also identified whether a project modification would be required
due to the listing of the species or another existing regulatory
authority to determine if the cost of the project modification was
likely to be co-extensive or incremental. Several project modifications
(i.e., conditions monitoring, diver education, horizontal directional
drilling (HDD), tunneling or anchoring cables and pipelines, sediment
control measures, fishing gear maintenance, and water quality standard
modification) were characterized as fully co-extensive with the listing
of the species or other existing statutory or regulatory authority,
because the nature of the actions that would require these
modifications typically involve a large action area likely to include
both the PCE and either the listed corals or other coral reef
resources. Other project modifications (i.e., project relocation, diver
assisted anchoring or mooring buoy use, global positioning system (GPS)
and dynamic positioning vessel (DPV) protocol, sand bypassing/
backpassing, shoreline protection measures, and use of upland or
artificial sources of sand) were characterized as partially co-
extensive with the listing of the species or other existing statutory
or regulatory authority such as the Clean Water Act because of the
typically smaller action area of projects that would involve these
modifications, and thus the greater likelihood that specific projects
would impact only the PCE. We did not identify any project modification
that we expected would result in fully incremental costs due to the
critical habitat designation.
Table 1 provides a summary of the estimated costs, where possible,
of individual project modifications. The Draft ESA 4(b)(2) Report
provides a detailed description of each project modification, methods
of determining estimated costs, and actions for which it may be
prescribed. Although we have a projection of the number of future
formal consultations (albeit an overestimation), the lack of
information on specific project designs limits our ability to forecast
the exact type and amount of modifications required. Thus, while the
costs associated with types of project modifications were
characterized, no total cost of this proposed rule could be quantified.
Table 1.--Summary of Potential Per-Project Costs Associated With Specific Project Modifications--Where
Information Was Available, Ranges of Scopes Are Included
----------------------------------------------------------------------------------------------------------------
Approximate per
Project modification Cost Unit Range project total
----------------------------------------------------------------------------------------------------------------
Fully Co-extensive:
Conditions Monitoring....... $3.5-6K........... per day........... 1-400 days........ $3.5K-2.4M.
Diver Education............. Admin. Cost....... n/a............... n/a............... n/a.
HDD/Tunneling............... $1.4-2.4M......... per mile.......... 0.2-31.5 miles.... $278K-76.9M.
Pipe Collars or Cable $1.2K............. per anchor........ 13-2,529 anchors.. $15.6K-3M.
Anchors.
Sediment Controls........... $43K.............. per mile.......... 0.05-7 miles...... $2-301K.
Water Quality Standard Undeterminable.... n/a............... n/a............... n/a.
Modification.
Partially Co-extensive:
Project Relocation.......... Undeterminable.... n/a............... n/a............... n/a.
Diver-assisted Anchoring or $300-1,000........ per day........... n/a............... n/a.
Mooring Buoy Use.
GPS & DPV protocol.......... Undeterminable.... n/a............... n/a............... n/a.
Sand Bypassing or $1.5-16K.......... per cu yd......... 75-512K cu yd..... $113K-8.2M.
Backpassing.
Shoreline Protection Undeterminable.... n/a............... n/a............... n/a.
Measures.
Upland or Artificial Sources Undeterminable.... n/a............... n/a............... n/a
of Sand.
----------------------------------------------------------------------------------------------------------------
In addition to project modification costs, administrative costs of
consultation will be incurred by Federal agencies and project
permittees or grantees as a result of this designation. Estimates of
the cost of an individual consultation were developed from a review and
analysis of the consultation database, as previously discussed, and
from the estimated ESA section 7 consultation costs identified in the
Economic Analysis of Critical Habitat Designation for the Gulf Sturgeon
(IEc, 2003) inflated to 2006 dollars (the 2007 inflation coefficient
was not known at the time of drafting). Cost figures are based on an
average level of effort for consultations of low or high complexity
(based on NMFS and other Federal agency information), multiplied by the
appropriate labor rates for NMFS and other Federal agency staff.
Although the PCE occurs in greater abundance than the corals and thus
the probability that a consultation would be required because of the
critical habitat designation is higher than for the listing of corals,
we were unable to estimate the number of consultations that may be
required on the basis of critical habitat alone. Therefore, we present
the estimated maximum incremental administrative costs as averaging
$827,220 to $1,633,229, annually.
National Security Impacts
Previous critical habitat designations have recognized that impacts
to national security 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 expected 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, June 15, 2006, at
34583; and Proposed Designation of Critical Habitat for Southern
Resident Killer Whales; 69 FR 75608, Dec. 17, 2004, at 75633.)
Past designations have also recognized that whether national
[[Page 6905]]
security impacts result from the designation depends on whether future
consultations would be required under the jeopardy standard regardless
of the critical habitat designation, and whether the critical habitat
designation would add new burdens beyond those related to the jeopardy
consultation.
As discussed above, based on the past 10-year consultation history,
it is likely that consultations with respect to activities on DOD
facilities will be triggered as a result of the proposed critical
habitat designation. Further, it is possible that some consultations
will be due to the presence of the PCE alone, and that adverse
modification of the PCE could result, thus requiring a reasonable and
prudent alternative to the proposed DOD activity.
On May 22, 2007, we sent a letter to DOD requesting information on
national security impacts of the proposed critical habitat designation,
and received a response from the Department of the Navy (Navy). Further
discussions and correspondence identified Naval Air Station Key West
(NASKW) as the only installation potentially affected by the critical
habitat designation. NASKW resides solely within the Florida specific
area of the proposed critical habitat (Area 1). No other DOD
installations were identified as likely to be impacted by this proposed
designation.
The Navy identified several specific activities within NASKW and
associated annexes that would be adversely impacted by requirements to
modify the actions to avoid destroying or adversely modifying critical
habitat. These activities include: military training and readiness;
access to, management of, and maintenance of piers, harbors, and
waterfront instrumentation; and support for refueling or docking of
Federal vessels. The Navy considers nearshore areas to be under its
control pursuant to its navigable servitude for purposes of national
defense under the Submerged Lands Act (43 U.S.C. 1314). Additionally,
the Navy states that NASKW and associated annexes (including bombing
and strafing areas) provide training necessary to national security and
identified the types of military activities that take place in the
areas. The Navy concluded that critical habitat designation at NASKW
would likely impact national security by diminishing military readiness
through the requirement to consult on their activities within critical
habitat in addition to the requirement to consult on the two listed
corals. We discuss our exclusion analysis based on these national
security impacts below.
Other Relevant Impacts
Past critical habitat designations have identified two broad
categories of other relevant impacts: Conservation benefits, both to
the species and to society as a result of designation, and impacts on
governmental or private entities that are implementing existing
management plans that provide benefits to the listed species. Our Draft
Section 4(b)(2) Report discusses conservation benefits of designating
the four specific areas to the corals, and the benefits of conserving
the corals to society, in both ecological and economic metrics.
As summarized in the Draft 4(b)(2) Report, elkhorn and staghorn
corals currently provide a range of important uses and services to
society. Because the features that form the basis of the critical
habitat are essential to, and thus contribute to, successful
conservation of the two listed corals, protection of critical habitat
from destruction or adverse modification may, at minimum, prevent
further loss of the benefits currently provided by the species.
Moreover, because the PCE is essential to increasing the abundance of
elkhorn and staghorn corals, its successful protection may actually
contribute to an increase in the benefits of these species to society
in the future. While we cannot quantify nor monetize the benefits, we
believe they are not negligible and would be an incremental benefit of
this designation. However, although the PCE is essential to the corals'
conservation, critical habitat designation alone will not bring about
their recovery. The benefits of conserving elkhorn and staghorn coral
are, and will continue to be, the result of several laws and
regulations.
Elkhorn and staghorn corals are two of the major reef-building
corals in the Caribbean. Over the last 5,000 years, they have made a
major contribution to the structure that makes up the Caribbean reef
system. The structural and ecological roles of Atlantic acroporids in
the Caribbean are unique and cannot be filled by other reef-building
corals in terms of accretion rates and the formation of structurally
complex reefs. At current levels of acroporid abundance, this ecosystem
function is significantly reduced. Due to elkhorn and staghorn corals'
extremely reduced abundance, it is likely that Caribbean reefs are in
an erosional, rather than accretional, state.
In addition to the important functions of reef building and reef
maintenance provided by elkhorn and staghorn corals, these species
themselves serve as fish habitat (Ogden and Ehrlich, 1977; Appeldoorn,
et al., 1996), including essential fish habitat (CFMC, 1998), for
species of economic and ecological importance. Specifically, Lirman
(1999) reported significantly higher abundances of grunts (Haemulidae),
snappers (Lutjanidae), and sweepers (Pempheridae) in areas dominated by
elkhorn coral compared to other coral sites suggesting that fish
schools use elkhorn colonies preferentially. Additionally, Hill (2001)
found that staghorn coral in a Puerto Rican back-reef lagoon was the
preferred settlement habitat for the white grunt (Haemulon plumieri).
Numerous reef studies have also described the relationship between
increased habitat complexity and increased species richness, abundance,
and diversity of fishes. Due to their branching morphologies, elkhorn
and staghorn corals provide complexity to the coral reef habitat that
other common species with mounding or plate morphologies do not
provide.
Another benefit of elkhorn and staghorn corals is provided in the
form of shoreline protection. Again, due to their function as major
reef building species, elkhorn and staghorn corals provide shoreline
protection by dissipating the force of waves, which are a major source
of erosion and loss of land (NOAA, 2005). For example, in 2005, the
coast of Mexico north of Cancun was impacted by Hurricane Wilma; wave
height recorded just offshore of the barrier reef was 11 m while wave
height at the coast was observed to be 3 m (B. van Tussenbroek, pers.
comm.). Damage to coastal structures would have been significantly
greater had the 11-m waves not been dissipated by the reef.
Lastly, numerous studies have identified the economic value of
coral reefs to tourism and recreation. Of particular relevance, Johns,
et al. (2003) estimated the value of natural reefs to reef users, and
the contribution of natural reefs to the economies of the four counties
of Florida that are associated with the proposed designation (discussed
below). The importance of the benefits elkhorn and staghorn corals
provide is also evidenced by the designation of marine protected areas
specifically for the protection of these species (e.g., Tres Palmas
Reserve, Puerto Rico).
Many previous designations have evaluated the impacts of
designation on relationships with, or the efforts of, private and
public entities that are involved in management or conservation efforts
benefitting listed species. Similar to national security impacts,
impacts on entities responsible for natural resource management or
conservation plans that benefit listed
[[Page 6906]]
species, or on the functioning of those plans, depend on the type and
number of ESA section 7 consultations and potential project
modifications that may result from the proposed critical habitat
designation in the areas covered by the plans. Several existing
resource management areas (Florida Keys National Marine Sanctuary, Dry
Tortugas National Park, Dry Tortugas Ecological Reserve, Biscayne Bay
National Park, Buck Island Reef National Monument, Virgin Islands
National Park, and Virgin Islands Coral Reef National Monument) will
likely require section 7 consultation in the future when the
responsible Federal agencies revise their management plans or
associated regulations or implement management actions. Negative
impacts to these agencies could result if the designation interferes
with their ability to provide for the conservation of the species or
otherwise hampers management of these areas. Because we identified that
resource management was a category of activities that may affect both
the species and the critical habitat and that the project modifications
required through section 7 consultation would be the same for the
species and the PCE, these costs are considered to be coextensive.
However, we found no evidence that relationships would be negatively
affected or that negative impacts to other agencies' ability to provide
for the conservation of the corals would result from the designation.
We also describe in our draft 4(b)(2) report that the critical habitat
designation will provide an important unique benefit to the corals by
protecting settling substrate for future coral recruitment and
recovery, compared to existing laws and management plans for these
areas that focus on protecting existing coral resources.
Synthesis of Impacts Within the Four Specific Areas
As discussed above, no categories of Federal actions would require
consultation in the future solely due to the critical habitat
designation; all projected categories of future actions have the
potential to adversely affect both the PCE and the listed corals.
However, an individual action within these categories may ultimately
result in impacts to only the PCE because the species may not be
present within the action area. In addition, past actions triggered
consultation due to effects on one or more other listed species within
the areas covered by the proposed designation (e.g., sea turtles,
smalltooth sawfish, Johnson's seagrass), but for purposes of the
impacts analysis we assumed these other species consultations would not
be co-extensive with consultations for the corals or the PCE. For each
of the specific areas, whether future consultations are incremental
impacts of the critical habitat designation or are co-extensive impacts
of the listing or other legal authorities will depend on whether the
listed corals or other coral species are in the action area. Based on
the relative abundance of the PCE and the listed corals, or all corals
combined, there seems to be a higher likelihood that a future project
could impact the PCE alone and thus be an incremental impact of
designation. On the other hand, projects with larger or diffuse action
areas may have a greater likelihood of impacting both the PCE and the
corals, and the same modifications would alleviate both types of
impacts, so the costs of these projects would more likely be co-
extensive either with the listing or existing authorities focused on
protecting coral reef resources.
The proposed Florida specific area of critical habitat (Area 1)
will have the greatest number of ESA section 7 consultations resulting
from the proposed critical habitat designation over the next 10 years,
317 consultations, or, on average, 31 per year; the Puerto Rico
specific area (Area 2) will have the second highest number of
consultations, 115, or, on average, 11-12 per year; and the U.S.V.I.
specific areas combined (Areas 3 and 4) will have the lowest number of
consultations, 41, or, on average, 4 per year. The number of future
consultations is proportional to the length of coastline in each of the
four specific areas: Area 1 is projected to experience 66 percent of
total consultations and it contains 65 percent of critical habitat
coastline; Area 2 is projected to have 25 percent of consultations and
contains 26 percent of shoreline included in the designation; and Areas
3 and 4 are projected to have 9 percent of consultations and contain 8
percent of total shoreline. In all four specific areas USACE-permitted
marine construction activities comprise the largest number of projected
future actions, in similar percentages across the areas (75 percent in
Area 1; 65 percent in Area 2; and 61 percent in Areas 3 and 4). We
detected no patterns or clumping in the geographic distribution of
projected future actions and future consultations and project
modifications within any of the specific areas that would suggest an
economic basis for focusing our evaluation of impacts on smaller areas
within any of the areas. In other words, no particular areas within the
specific areas identified are expected to incur a disproportionate
share of the costs of designation.
As mentioned above, the majority of projected ESA section 7
consultations in all four specific areas will be USACE-authorized
marine construction activities, and all of these could involve third-
party permittees. Although we assumed all of these projects will
require formal consultation due to effects on the PCE and the corals to
avoid underestimating ESA section 7 impacts, as discussed in our
impacts report, it is unlikely that all of these projects will trigger
consultation for either the PCE or the corals, or that they would
require modification to avoid adverse impacts. Though our database on
past consultations is not complete, the data indicate that the majority
of the projects in this category were residential dock construction,
and as such would have been located in protected shorelines such as
manmade canals where the PCE and the corals are not routinely found.
Even when these projects trigger consultation in the future, the
project modifications that may be required as a result of the proposed
critical habitat may also be required by an existing regulatory
authority, including the ESA listing of the two corals. Thus, if both
the PCE and corals are present, or if another regulatory authority
would also require the project modification, the costs associated with
these project modifications will be co-extensive. Many of the other
categories of activities projected to occur in all four specific areas
have the potential to have effects over larger, more diffuse action
areas, and thus are more likely to be co-extensive costs of the
designation (e.g., dredging projects, water discharge, and water
quality regulatory projects).
We estimated the maximum incremental administrative costs of
conducting ESA section 7 consultation for each of the four specific
areas. Multiplying the total number of consultations by the low and
high estimates of cost yields the following ranges of total
administrative costs (in 2006 dollars) per area over the next 10 years:
$5,543,946 to $10,945,740 in Area 1; $2,011,211 to $3,970,852 in Area
2; and $717,040 to $1,415,695 in Areas 3 and 4. Table 1 above provides
a summary of the estimated costs, where possible, of individual project
modifications. The Draft Section 4(b)(2) Report provides a detailed
description of each project modification, methods of determining
estimated costs, and for which action(s) it may be prescribed. Although
we have a projection of the
[[Page 6907]]
number of future formal consultations (albeit an overestimation), the
lack of information on the specifics of project design limits our
ability to forecast the exact type and amount of modifications
required. Therefore, while the costs associated with types of project
modifications were characterized, no total cost of this proposed rule
can be quantified accurately.
Preventing these project impacts is expected to contribute to the
preservation of, and potential increases in, economic and other
conservation benefits in each of the four specific areas, as described
in the Draft Section 4(b)(2) Report. In Area 1, the natural reefs
formed and inhabited by elkhorn and staghorn corals provide over $225
million in average annual use value (2003 dollars) and a capitalized
value of over $7 billion to the four Florida counties covered by Area
1. Natural reef-related industries provided over 40,000 jobs in Area 1
in 2003, generating over $1 billion in income. Area 1 experienced
almost $6 million in value of commercial reef-dependent fish landings
in 2005. Available information also demonstrates the direct link
between healthy coral reef ecosystems and the value of scuba-diving
related tourism throughout the Caribbean, including Florida, with
estimated losses in the hundreds of millions of dollars region-wide per
year if reef degradation continues. Coral reefs provided over 87
percent of average annual commercial fish and invertebrate landings in
Puerto Rico (Area 2) from 1995 to 2002. In 2005, domestic landings of
shallow water reef fish comprised about 66 percent of all fish landed
in Puerto Rico and were valued at over $1.7 million. Tourism is not as
important a component of Puerto Rico's overall economy as it is in
Areas 1, 3, and 4, but it may be much more significant for the
shoreside communities from which dive and other reef-related tourism
activities embark. Tourism accounts for 80 percent of the U.S.V.I.'s
(Area 3) Gross Domestic Product and employment. One survey documented
that 100 percent of hotel industry respondents stated they believed
there would be a significant impact on tourist visits if the coast and
beaches were degraded, or fisheries or coral reefs declined. In 2005,
domestic landings of shallow water reef fish comprised about 83 percent
of all fish landed in the U.S.V.I. that year and were valued at over
$3.8 million.
Conservation benefits to the corals in each of the four specific
areas are expected to result from the designation. As we have
determined, recovery of elkhorn and staghorn corals cannot succeed
without protection of the PCE from destruction or adverse modification.
No existing laws or regulations protect the PCE from destruction or
adverse modification with a specific focus on increasing coral
abundance and eventual recovery. Given the extremely low current
abundance of the corals and characteristics of their sexual
reproduction (e.g., limited success over long ranges), protecting the
PCE throughout the corals' range and throughout each of the four
specific areas is extremely important for conservation of these
species. We also describe the potential educational and awareness
benefits to the corals that may result from the critical habitat
designation in our Draft 4(b)(2) Report.
Regarding economic impacts, the limitations to the type and amount
of existing information do not allow us to predict the total costs and
benefits of the proposed designation. Nevertheless, we believe that our
characterization of the types of costs and benefits that may result
from the designation, in particular circumstances, may provide some
useful information to Federal action agencies and potential project
permittees. We have based the proposed designation on a very
specifically defined feature essential to the corals' conservation,
which allowed us to identify the few, specific effects of human
activities that may adversely affect the corals and thus require
section 7 consultation under the ESA (sedimentation, nutrification, and
physical destruction). We identified potential routine project
modifications we may require to avoid destroying or adversely modifying
the essential substrate feature. In some cases, these modifications are
common environmental mitigation measures that are already being
performed under existing laws and regulations that seek to prevent or
minimize adverse impacts to coral reef or marine resources in general.
Thus, we believe that parties planning future activities within the
four specific areas proposed for designation will be able to predict
the potential added costs of their projects resulting from the
designation based on their knowledge of the location, size, and timing
of their planned activities. We have discussed to the extent possible
the circumstances under which section 7 impacts will be incremental
impacts of this rule, or co-extensive impacts of this rule and the
listing of the corals or another existing legal authority. We believe
that the limitations of current information about potential future
projects do not allow us to be more specific in our estimates of the
section 7 impacts (administrative consultation and project modification
costs) of the proposed designation. In addition, based on available
information, we did not identify any patterns or clumping in the
distribution of future projects (and the associated consultations and
potential modifications) either between or within the four specific
areas proposed for designation that would suggest any disproportionate
impact of the designation.
Similarly, with regard to the conservation benefits of the proposed
designation, we determined that the designation will result in benefits
to society. We provide a literature survey of the valuation of coral
reefs to provide context for the readers on benefits of protective
measures. Given the potential number and type of future ESA section 7
consultations, we expect that the designation will prevent adverse
effects to the proposed critical habitat feature, and thus assist in
maintaining the feature's conservation function for the two corals. We
believe the designation will assist in preventing further losses of the
corals and, eventually, in increased abundance of the two species. By
contributing to the continued existence of these two species and
eventually their increased abundance, the proposed designation will, at
minimum, prevent loss of important societal benefits described above
that are currently provided by the species, and potentially increase
these benefits over time.
Regarding impacts on Federal agencies responsible for managing
resources in areas proposed for designation, we expect section 7
consultation responsibilities will result from the designation as
described above. However, as explained further in the section 4(b)(2)
report, we determined that the designation will not negatively impact
the management or operation of existing managed areas or the Federal
agencies responsible for these areas. We further determined that the
designation provides an added conservation benefit to the corals beyond
the benefits provided by the existing management plans and associated
regulations. We believe our evaluation and consideration of the
potential impacts above support our conclusion that there are no
economic or other relevant impacts that warrant our proposing to
exclude particular areas from the designation. Given the limitations on
existing data and information, we are specifically requesting comments
and information that may be useful in refining our analysis, including
any omitted categories of activities that may affect the essential
feature and more
[[Page 6908]]
precise cost estimates for project modifications.
As discussed in the next section, we are exercising our discretion
to propose excluding particular areas from the critical habitat
designation based on national security impacts.
Proposed Exclusions Under Section 4(b)(2)
Impacts to national security as a result of the proposed critical
habitat designation are expected to occur in Area 1, specifically on
47.3 sq miles (123 sq km) of NASKW. Based on information provided to us
by the Navy, national security interests would be negatively impacted
by the designation, because the potential additional consultations and
project modifications to avoid adversely modifying the PCE would
interfere with military training and readiness. Based on these
considerations, we propose exclusion of the particular areas identified
by the Navy from the critical habitat designation.
The benefit of excluding the NASKW particular areas is that the
Navy would only be required to comply with the jeopardy prohibition of
ESA section 7(a)(2) and not the adverse modification prohibition. The
Navy maintains that the additional commitment of resources in
completing an adverse modification analysis, and any change in its
activities to avoid adverse modification of critical habitat, would
likely reduce its readiness capability. Given that the Navy is
currently actively engaged in training, maintaining, and deploying
forces in the current war effort, this reduction in readiness could
reduce the ability of the military to ensure national security.
The best scientific and commercial data available indicate that the
PCE is rare within the proposed exclusion area. Further, the area to be
excluded comprises only 1.1 percent of Area 1. The corals and habitat
will still be protected through ESA section 7 consultations that
prohibit jeopardizing the species' continued existence and require
modifications to minimize the impacts of incidental take. Further,
there are no other Federal activities that might adversely impact the
proposed critical habitat that would be exempted from future
consultation requirements due to this proposed exclusion, since these
areas are under exclusive military control. Therefore, in our judgment,
the benefit of including the particular area of NASKW is outweighed by
the national security benefit the Navy will gain by not consulting on
critical habitat. Given the small percentage of Area 1 encompassed by
this area, we conclude that exclusion will not result in extinction of
either elkhorn or staghorn corals.
Critical Habitat Designation
We are proposing to designate approximately 4,931 square miles
(12,569 sq km) of marine habitat within the geographical area occupied
by elkhorn and staghorn corals in Florida, Puerto Rico, and the
U.S.V.I. The proposed specific areas contain the substrate physical
feature, or PCE, we determined to be essential to the conservation of
these species and that may require special management considerations or
protection.
Public Comments Solicited
We request that interested persons submit comments, information,
maps, and suggestions concerning this proposed rule and supporting
draft 4(b)(2) report during the comment period (see DATES). We are
soliciting comments or suggestions from the public, other concerned
governments and agencies, the scientific community, industry, or any
other interested party concerning this proposed rule. We are also
soliciting comments on the draft 4(b)(2) report and its analysis of
economic, national security, and other relevant impacts and proposed
exclusions. You may submit your comments and materials concerning this
proposal by any one of several methods (see ADDRESSES). The proposed
rule, maps, fact sheets, references, and other materials relating to
this proposal can be found on the NMFS Southeast Region Web site at
http://sero.nmfs.noaa.gov/pr/protres.htm. We will consider all comments
pertaining to this designation received during the comment period in
preparing the final rule. Accordingly, the final designation may differ
from this proposal.
Public Hearings
50 CFR 424.16(c)(3) requires the Secretary to promptly hold at
least one public hearing if any person requests one within 45 days of
publication of a proposed rule to designate critical habitat. Such
hearings provide the opportunity for interested individuals and parties
to give comments, exchange information and opinions, and engage in a
constructive dialogue concerning this proposed rule. We encourage the
public's involvement in these hearings. Based on the high level of
public interest in elkhorn and staghorn corals, public meetings have
been scheduled for:
1. Tuesday, March 4, 2008, 7 p.m. to 9 p.m., IGFA Events Hall, 300
Gulf Stream Way, Dania Beach, Florida.
2. Wednesday, March 5, 2008, 7 p.m. to 9 p.m., Marathon Government
Center, 2798 Overseas Highway, Marathon, Florida.
3. Tuesday, March 11, 2008, 6 p.m. to 8 p.m., Administration and
Conference Center (ACC), 1st Floor Conference Room, University of the
Virgin Islands, 2 John Brewer's Bay, St. Thomas, U.S.V.I./
Simulcast Location on St. Croix: The Great Hall, Room 134,
University of the Virgin Islands, RR 1, Box 10000 Kingshill, St. Croix,
U.S.V.I.
4. Wednesday, March 12, 2008, 7 p.m. to 9 p.m., 4th Floor
Conference Room, Environmental Building, Cruz Matos, State Road
838, km 6.3, Sector El Cinco, Rio Piedras, Puerto Rico.
Requests for additional public hearings must be made in writing (see
ADDRESSES) by March 24, 2008.
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 that supports this proposal to designate
critical habitat for elkhorn and staghorn corals and incorporated the
peer review comments prior to dissemination of this proposed
rulemaking. A Draft 4(b)(2) Report (NMFS, 2007) that supports the
proposal to designate critical habitat for elkhorn and staghorn corals
was also peer reviewed and is available on our Web site (see
ADDRESSES).
We determined that this action is consistent to the maximum extent
practicable with the enforceable policies of the approved coastal
management programs of Florida, Puerto Rico, and U.S.V.I. The
determination has been submitted for review by the responsible state
agencies under section 307 of the Coastal Zone Management Act.
This proposed 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 proposed rule to
the extent consistent with the mandatory duty to designate critical
habitat, as defined in the ESA.
[[Page 6909]]
We prepared an initial regulatory flexibility analysis (IRFA)
pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C.
601, et seq.), which describes the economic impact this proposed rule,
if adopted, would have on small entities. A description of the action,
why it is being considered, and its legal basis are included in the
preamble section of this proposed rule.
Small businesses, small nonprofit organizations, and small
governmental jurisdictions may be affected by this proposed designation
if they engage in activities that would affect the essential feature
identified in this proposed designation and if they receive funding or
authorization for such activity from a Federal agency. Such activities
would trigger ESA section 7 consultation requirements and potential
requirements to modify proposed activities to avoid destroying or
adversely modifying the critical habitat. The consultation record from
which we have projected likely Federal actions over the next 10 years
indicates that applicants for Federal permits or funds have included
small entities. For example, marine contractors have been the
recipients of USACE permits for dock construction; some of these
contractors were 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 percent
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. We do know from the more recent
consultation history that small governmental jurisdictions (population
less than or equal to 50,000) have received USACE permits for beach
renourishment. Small businesses in the tourist and commercial fishing
industries may benefit from the rule, as conservation of elkhorn and
staghorn corals is expected to result in increased direct and indirect
use of, and values derived from, coral reefs. We encourage small
businesses, small governmental jurisdictions, and other small entities
to provide comment on whether they may be affected by this rulemaking
to help us provide an accurate estimate of the number of small entities
to which the proposed rule will apply.
We projected that, on average, approximately 39 Federal projects
with non-federal grantees or permittees will be affected by
implementation of the proposed critical habitat designation, annually,
across all four areas proposed for inclusion 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 pipeline
installation and maintenance, mooring construction and maintenance,
dock/pier construction and repair, marina construction, bridge repair
and construction, new dredging, maintenance dredging, NPDES/water
quality standards, cable installation, beach nourishment, shoreline
stabilization, reef ball construction and installation, and port
construction. 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; GPS and DPV protocols; diver assisted anchoring
or mooring buoy use; pipe collars or cable anchoring; shoreline
protection measures; use of upland or artificial sources of sand;
direction drilling or tunneling; and sediment and turbidity control
measures (see Tables 20, 21 and 24 of the Draft Section 4(b)(2)
Report).
Even though we cannot determine relative numbers of small and large
entities that may be affected by this proposed rule, there is no
indication that affected project applicants would be limited to, nor
disproportionately comprise, small entities. It is unclear whether
small entities would be placed at a competitive disadvantage compared
to large entities. However, as described in the Draft Section 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 (e.g., per mile of
shoreline, per cubic yard of sand moved) 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 proposed rule will significantly
reduce profits or revenue for small businesses. As discussed throughout
the Draft Section 4(b)(2) Report, we made assumptions that all of the
future consultations will be formal, and all will require project
modifications; but this is likely an overestimation. 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. Finally, many of the
modifications identified to reduce the impact of a project on critical
habitat may be a baseline requirement either due to the ESA listing of
the species or under another regulatory authority, notably the Clean
Water Act.
There are no record-keeping requirements associated with the
proposed 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, which do not require
specific skills to satisfy. However, third party applicants or
permittees would be expected to incur costs associated with
participating in the administrative process of consultation along with
the permitting Federal agency. Such third party costs of consultation
were estimated for the 2003 designation of critical habitat for Gulf
sturgeon in the southeast United States. In 2006 dollars, per
consultation administrative costs for third parties are estimated to
average from $3,251 to $4,596.
We encourage all small businesses, small governmental
jurisdictions, and other small entities that may be affected by this
rule to provide comment on the potential economic impacts of the
proposed designation, such as anticipated costs of consultation and
potential project modifications, to improve the above analysis.
No Federal laws or regulations duplicate or conflict with the
proposed rule. Existing Federal laws and regulations overlap with the
proposed rule only to the extent that they provide protection to marine
natural resources or corals generally. However, no existing laws or
regulations specifically prohibit destruction or adverse modification
of critical habitat for, and focus on the recovery of, elkhorn and
staghorn corals.
[[Page 6910]]
The alternatives to the proposed designation considered consisted
of a no-action alternative and an alternative based on a broader
conservation objective that would include multiple physical or
biological features of the corals' environment in the designation. The
no-action, or no designation, alternative would result in no additional
ESA section 7 consultations relative to the status quo of the species'
listing and finalization of a recently proposed ESA section 4(d) rule.
However, while additional administrative and potential project
modification costs would not be incurred under this alternative, this
alternative is not necessarily a no cost alternative, including to
small entities, given the potential loss of existing benefits provided
by the corals if they continue to decline due to failure to protect the
substrate PCE from adverse modification. The multiple features
alternative was expected to increase the number and complexity of
section 7 consultations and associated costs to small entities without
concomitant increased conservation benefits to the corals, because we
believe the additional features are already effectively managed through
the jeopardy analysis required under ESA section 7 or subsumed within
the substrate PCE identified for this designation.
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 Intergovernmental Affairs will
provide notice of the proposed action and request comments from the
appropriate official(s) of the states and territories in which the two
species occur.
The proposed 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.
This proposed rule is consistent with E.O. 13089, which is intended
to preserve and protect the biodiversity, health, heritage, and social
and economic value of U.S. coral reef ecosystems and the marine
environment.
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/protres.htm and
is available upon request from the NMFS Southeast Regional Office in
St. Petersburg, Florida (see ADDRESSES).
List of Subjects
50 CFR Part 223
Endangered and threatened species, Exports, Imports, Transporation.
50 CFR Part 226
Endangered and threatened species.
Dated: January 31, 2008.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, we propose to amend 50 CFR
parts 223 and 226 as set forth below:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 223 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for Sec.
223.206(d)(9).
Sec. 223.102 [Amended]
2. Amend Sec. 223.102 by removing the text, ``NA'', from the
column labeled ``Citation for Critical Habitat Designation'' in
paragraphs (d)(1) and (d)(2) and adding in its place the Federal
Register citation for the final rule associated with this proposed
rule.
PART 226--DESIGNATED CRITICAL HABITAT
3. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
4. Add Sec. 226.215, to read as follows:
Sec. 226.215 Critical habitat for Elkhorn (Acropora palmata) and
Staghorn (A. cervicornis) Corals.
Critical habitat is designated for both elkhorn and staghorn corals
as described in this section. The textual descriptions of critical
habitat in paragraphs (b) and (c) of this section are the definitive
source for determining the critical habitat boundaries. The overview
maps in paragraph (d) of this section are provided for general guidance
purposes only, and not as a definitive source for determining critical
habitat boundaries.
(a) Physical Feature Essential to the Conservation of Threatened
Corals. The physical feature essential to the conservation of elkhorn
and staghorn corals is: substrate of suitable quality and availability,
in water depths from mean high water to 30 m, to support larval
settlement and recruitment, and reattachment of asexual fragments.
``Substrate of suitable quality and availability'' is defined as
natural consolidated hardbottom or dead coral skeleton that is free
from fleshy macroalgae cover and sediment cover.
(b) Critical Habitat Areas. Critical habitat includes one specific
area of the Atlantic Ocean offshore of Palm Beach, Broward, Miami-Dade,
and Monroe counties, Florida, and three specific areas of the Atlantic
Ocean and Caribbean Sea offshore of the U.S. Territories of Puerto Rico
and the U.S. Virgin Islands. The boundaries of each specific critical
habitat area are described below. Generally, the seaward boundary is
the 30-m depth contour and the shoreward boundary is the line of mean
high water (MHW; see 33 CFR 329.12(a)). Within these boundaries,
discrete areas of water deeper than 30 m are not included.
(1) Florida Area: The boundary for the Florida area begins at the
MHW line at the north boundary of Palm Beach County at 26[deg]58'13.5''
N; then due east to the point of intersection with the 30-m contour;
then following the 30-m contour to 24[deg]45'20.6'' N, 82[deg]34'35.4''
W, the point of intersection with the Florida Key National Marine
Sanctuary (FKNMS) boundary (see 15 CFR 922.161); then following the
FKNMS boundary to the point of intersection with the COLREGS line (see
33 CFR 80.727, 730, 735, and 740) at 24[deg]54'56.8'' N,
80[deg]56'25.2'' W; then following the COLREGS line to a point of
intersection on Long Key at 24[deg]49'1.7'' N, 80[deg]49'36.1'' W; then
following the COLREGS line and MHW line returning to the beginning
point. The Florida area also includes two shoal areas southwest of the
Dry Tortugas bounded by the 30-m contour.
(2) Puerto Rico Area: All areas surrounding the islands of the
Commonwealth of Puerto Rico, 30 m in depth and shallower, seaward of
the COLREGS line (see 33 CFR 80.738).
(3) St. Thomas/St. John Area: All areas surrounding the islands of
St. Thomas and St. John, U.S. Virgin Islands, and smaller surrounding
islands, 30 m in depth and shallower.
(4) St. Croix Area: All areas surrounding the island of St. Croix,
U.S. Virgin Islands, 30 m in depth and shallower.
(c) Areas excluded from critical habitat on the basis of national
security impacts. Critical habitat does not
[[Page 6911]]
include the following particular areas in the state of Florida:
(1) All waters surrounding Naval Air Station, Key West from the
shoreline delimited by the line of mean high water to a distance of 46
m.
(2) All waters identified as naval restricted areas and danger zone
at 33 CFR 334.610, as follows:
(i) All waters within 100 yards of the south shoreline of the Harry
S. Truman Annex, beginning at a point on the shore at 24[deg]32'45.3''
N, 81[deg]47'51'' W; thence to a point 100 yards due south of the south
end of Whitehead Street of 24[deg]32'42.3'' N, 81[deg]47'51'' W; thence
extending westerly, paralleling the southerly shoreline of the Harry S.
Truman Annex, to 24[deg]32'37.6'' N, 81[deg]48'32'' W, thence northerly
to the shore at 24[deg]32'41'' N, 81[deg]48'31'' W.
(ii) All waters within 100 yards of the westerly shoreline of the
Harry S. Truman Annex and all waters within a portion of the Truman
Annex Harbor, as defined by a line beginning on the shore at
24[deg]33'00'' N, 81[deg]48'41.7'' W; thence to a point 100 yards due
west at 24[deg]33'00'' N, 81[deg]48'45'' W; thence northerly,
paralleling the westerly shoreline of the Harry S. Truman Annex,
including a portion of the Truman Annex Harbor entrance, to
24[deg]33'23'' N, 81[deg]48'37'' W; thence southeasterly to the shore
(sea wall) at 24[deg]33'19.3'' N, 81[deg]48'28.7'' W.
(iii) All waters within 100 yards of the U.S. Coast Guard Station
and the westerly end of Trumbo Point Annex beginning at the shore at
24[deg]33'47.6'' N, 81[deg]47'55.6'' W; thence westerly to
24[deg]33'48'' N, 81[deg]48'00.9'' W; thence due south to
24[deg]33'45.8'' N, 81[deg]48'00.9'' W; thence westerly to
24[deg]33'47'' N, 81[deg]48'12'' W; thence northerly to
24[deg]34'06.2'' N, 81[deg]48'10'' W; thence easterly to a point
joining the restricted area around Fleming Key at 24[deg]34'03.3'' N,
81[deg]47'55'' W.
(iv) Beginning at 24[deg]34'03.3'' N, 81[deg]47'55'' W; proceed
northwesterly, maintaining a distance of 100 yards from the shoreline
of Fleming Key, except for a clearance of approximately 400 yards
across the mouth of Fleming Cove near the southwesterly end of Fleming
Key, continue around Fleming Key to a point easterly of the southeast
corner of Fleming Key at 24[deg]34'00.8'' N, 81[deg]47'37.5'' W; thence
easterly to 24[deg]33'57.6'' N, 81[deg]47'20'' W; thence southerly to a
point on the shore at 24[deg]33'54.7'' N, 81[deg]47'20.9'' W.
(v) All waters contiguous to the southwesterly shoreline of Boca
Chica Key beginning at a point on the southwest shoreline at
24[deg]33'24'' N, 81[deg]42'30'' W; proceed due south 100 yards to
24[deg]33'20.4'' N, 81[deg]42'30'' W; thence, maintaining a distance of
100 yards from the shoreline, proceed westerly and northerly to
24[deg]34'03'' N, 81[deg]42'47'' W; thence due north to a point at the
easterly end of the U.S. Highway 1 (Boca Chica Channel) bridge at
24[deg]34'39'' N, 81[deg]42'47'' W.
(vi) Danger zone. All waters within an area along the northeast
side of the Naval Air Station on Boca Chica Key defined by a line
beginning at 24[deg]35.472' N, 81[deg]41.824' W; thence proceed in a
northerly direction to a point at 24[deg]36.289' N, 81[deg]41.437' W;
thence proceed westerly to a point at 24[deg]36.392' N, 81[deg]41.970'
W; thence to a point on shore at 24[deg]35.698' N, 81[deg]41.981' W.
(3) All waters contained within the area identified as the Fleming
Key Drop Zone, as defined by a rectangle with bounding coordinate pairs
of: 24[deg]35'42.2'' N and 81[deg]47'43.6'' W; 24[deg]35'42.6'' N and
81[deg]46'27.3'' W; 24[deg]35'13.0'' N and 81[deg]47'38.2'' W; and
24[deg]35'13.3'' N and 81[deg]46'27.2'' W.
(4) All waters identified as bombing and strafing target areas at
33 CFR 334.620(a)(2)(i) through (iii), as follows:
(i) A circular area immediately west of Marquesas Keys with a
radius of two nautical miles having its center at 24[deg]33.4' and
82[deg]10.9', not to include land area and area within Marquesas Keys.
(ii) A circular area located directly west of Marquesas Keys with a
radius of three statute miles having its center at 24[deg]35.6' and
82[deg]11.6', not to include land area within Marquesas Keys.
(iii) A circular area located west of Marquesas Keys with a radius
of two nautical miles having its center at 24[deg]34'30'' and
82[deg]14'00'' .
(d) Overview maps of designated critical habitat for elkhorn and
staghorn corals follow.
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[FR Doc. 08-497 Filed 1-31-08; 4:13pm]
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