[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Rules and Regulations]
[Pages 45353-45378]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21186]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 070717355-91122-02]
RIN 0648-AV74


Endangered and Threatened Species; Critical Habitat for the 
Endangered Distinct Population Segment of Smalltooth Sawfish

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule to designate critical habitat for the U.S. distinct 
population segment (DPS) of smalltooth sawfish (Pristis pectinata), 
which was listed as endangered on April 1, 2003, under the Endangered 
Species Act (ESA). The critical habitat consists of two units: the 
Charlotte Harbor Estuary Unit, which comprises approximately 221,459 
acres of coastal habitat; and the Ten Thousand Islands/Everglades Unit 
(TTI/E), which comprises approximately 619,013 acres of coastal 
habitat. The two units are located along the southwestern coast of 
Florida between Charlotte Harbor and Florida Bay.

DATES: This rule becomes effective October 2, 2009.

ADDRESSES: The final rule, Final Regulatory Flexibility Analysis, and 
Final 4(b)(2) Report used in preparation of this final rule, as well as 
comments and information received, are available on the NMFS Web site 
at http://www.sero.noaa.gov/, or http://www.regulations.gov, or by 
contacting the National Marine Fisheries Service's Southeast Regional 
Office, 263 13th Avenue, South, St. Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Shelley Norton, NMFS, Southeast 
Regional Office, at 727-824-5312; or Lisa Manning, NMFS, Office of 
Protected Resources, at 301-713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    Under the ESA, we are responsible for determining whether certain 
species are threatened or endangered and for designating critical 
habitat for such species (16 U.S.C. 1533). On April 1, 2003, we listed 
the U.S. DPS of smalltooth sawfish (``the species'') as endangered (68 
FR 15674). At the time of listing, we also announced that critical 
habitat was not then determinable because we were completing ongoing 
studies necessary for the identification of specific habitats and 
environmental features important for the conservation of the species. 
Subsequently, we have sponsored additional research on the species, its 
habitat use, and its conservation needs. Additionally, NMFS has 
developed a recovery plan (NMFS, 2009) for the species pursuant to 
section 4(f) of the ESA. We have reviewed the best available scientific 
data and identified specific areas in the species' occupied range on 
which are located those physical and biological features essential to 
the conservation of the species that may require special management 
considerations or protection. We published a proposed critical habitat 
designation for the smalltooth sawfish on November 20, 2008 (73 FR 
70290), and requested comments by January 20, 2009. On December 9, 
2008, we published a notice in the Federal Register (73 FR 74681) 
announcing the dates, times, and locations of two public hearings to 
receive public comments on the proposed critical habitat rule. In 
addition to the Federal Register notice announcing the public hearings, 
we advertised the public hearings in the local newspapers (News-Press 
of Ft. Myers on December 8, 2008, and in the Naples-News on December 
14, 2008). During the public comment period we received several 
requests to extend the public comment period. On January 29, 2009, we 
reopened the public comment period until February 13, 2009 (74 FR 
5141).
    The key conservation objective we have identified for the species 
is the need to facilitate recruitment into the adult sawfish population 
by protecting juvenile nursery areas. We determined the location of 
nursery areas by applying a model developed for identifying 
elasmobranch nursery areas to smalltooth sawfish encounter data. 
Additionally, we determined that the habitat features essential to the 
conservation of the species (also known as the essential features) are 
red mangroves and shallow euryhaline habitats characterized by water 
depths between the Mean High Water line and 3 ft (0.9 m) measured at 
Mean Lower Low Water (MLLW). These essential features are necessary to 
facilitate recruitment of juveniles into the adult population, because 
they provide for predator avoidance and habitat for prey in the areas 
currently being used as juvenile nursery areas. We determined these 
features may require special management considerations or protection 
due to human and natural impacts to the features, including 
development, marine construction, and storms. We proposed designating 
two specific areas that are nursery areas and contain the essential 
features necessary to the species conservation. The two areas are: the 
Charlotte Harbor Estuary Unit, which comprises approximately 221,459 
acres (346 mi\2\) of coastal habitat; and the Ten Thousand Islands/
Everglades Unit (TTI/E), which comprises approximately 619,013 acres 
(967 mi\2\) of coastal habitat. The two units are located along the 
southwestern coast of Florida between Charlotte Harbor and Florida Bay.

Smalltooth Sawfish Natural History

    The following discussion of the distribution, life history, and 
habitat use of the U.S. DPS of smalltooth sawfish is based on the best 
available commercial and scientific information, including information 
provided in the Status Review (65 FR 12959; March 10, 2000) and the 
Smalltooth Sawfish Recovery Plan (January 2009).

Distribution and Range

    Smalltooth sawfish are tropical marine and estuarine elasmobranch 
(e.g., sharks, skates, and rays) fish that are reported to have a 
circumtropical distribution. The historic range of the smalltooth 
sawfish in the United States extends from Texas to New York (NMFS, 
2009). The U.S. region that has historically harbored the largest 
number of smalltooth sawfish is south and southwest Florida from 
Charlotte Harbor to the Dry Tortugas. Most historic capture records 
along the Atlantic coast north of Florida are from spring and summer 
months and warmer water temperatures. Most specimens captured along the 
Atlantic coast north of Florida were also large (greater than 10 ft or 
3 m) adults and thought to represent seasonal migrants, wanderers, or 
colonizers from a core or resident population(s) to the south rather 
than being resident members of a continuous, even-density population 
(Bigelow and Schroeder, 1953). Historic records from Texas to the 
Florida Panhandle suggest a similar spring and summer pattern of 
occurrence. While less common, winter

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records from the northern Gulf of Mexico suggest a resident population, 
including juveniles, may have once existed in this region.
    The Status Review Team (NMFS, 2000) compiled information from all 
known literature accounts, museum collection specimens, and other 
records of the species. The species suffered significant population 
decline and range constriction in the early to mid 1900s. Encounters 
with the species outside of Florida have been rare since that time.
    Since the 1990s, the distribution of smalltooth sawfish in the 
United States has been restricted to peninsular Florida (Seitz and 
Poulakis, 2002; Poulakis and Seitz, 2004; Simpfendorfer and Wiley, 
2005a; Mote Marine Laboratory's Sawfish Encounter Database; and the 
FLMNH National Sawfish Encounter Database [FLMNHNSED]). Encounter data 
indicate smalltooth sawfish encounters can be found with some 
regularity only in south Florida from Charlotte Harbor to Florida Bay. 
A limited number of reported encounters (one in Georgia, one in 
Alabama, one in Louisiana, and one in Texas) have occurred outside of 
Florida since 1998.
    Peninsular Florida is the main U.S. region that historically and 
currently hosts the species year-round because the region provides the 
appropriate climate (subtropical to tropical) and contains the habitat 
types (lagoons, bays, mangroves, and nearshore reefs) suitable for the 
species. Encounter data and research efforts indicate a resident, 
reproducing population of smalltooth sawfish exists only in southwest 
Florida (Simpfendorfer and Wiley, 2005a).

Life History

    Smalltooth sawfish are approximately 31 in (80 cm) in total length 
at birth and may grow to a length of 18 ft (540 cm) or greater. A 
recent study by Simpfendorfer et al. (2008) suggests rapid juvenile 
growth occurs during the first 2 years after birth. First year growth 
is 26-33 in (65-85 cm) and second year growth is 19-27 in (48-68 cm). 
Growth rates beyond 2 years are uncertain; however, the average growth 
rate of captive smalltooth sawfish has been reported between 5.8 in 
(13.9 cm) and 7.7 in (19.6 cm) per year. Apart from captive animals, 
little is known of the species' age parameters (i.e., age-specific 
growth rates, age at maturity, and maximum age). Simpfendorfer (2000) 
estimated age at maturity between 10 and 20 years, and a maximum age of 
30 to 60 years. Unpublished data from Mote Marine Laboratory (MML) and 
NMFS indicate male smalltooth sawfish do not reach maturity until they 
reach 133 in (340 cm).
    No directed research on smalltooth sawfish feeding habits exists. 
Reports of sawfish feeding habits suggest they subsist chiefly on small 
schooling fish, such as mullets and clupeids. They are also reported to 
feed on crustaceans and other bottom-dwelling organisms. Observations 
of sawfish feeding behavior indicate that they attack fish by slashing 
sideways through schools, and often impale the fish on their rostral 
(saw) teeth (Breder, 1952). The fish are subsequently scraped off the 
teeth by rubbing them on the bottom and then ingested whole. The oral 
teeth of sawfish are ray-like, having flattened cusps that are better 
suited to crushing or gripping.
    Very little is known about the specific reproductive biology of the 
smalltooth sawfish. As with all elasmobranchs, fertilization occurs 
internally. The embryos of smalltooth sawfish, while still bearing the 
large yolk sac, resemble adults relative to the position of their fins 
and absence of the lower caudal lobe. During embryonic development, the 
rostral blade is soft and flexible. The rostral teeth are also 
encapsulated or enclosed in a sheath until birth. Shortly after birth, 
the teeth become exposed and attain their full size, proportionate to 
the size of the saw. Total length of the animal at birth is 
approximately 31 in (80 cm), with the smallest free-living specimens 
reported during field studies in Florida being 27-32 in (69-81 cm) 
(Simpfendorfer et al., 2008). Documentation on the litter size of 
smalltooth sawfish is very limited. Gravid females have been documented 
carrying between 15-20 embryos; however, the source of these data is 
unclear and may represent an over-estimate of litter size. Studies of 
largetooth sawfish in Lake Nicaragua (Thorson, 1976) report brood sizes 
of 1-13 individuals, with a mean of 7 individuals. The gestation period 
for largetooth sawfish is approximately 5 months, and females likely 
produce litters every second year. Although there are no such studies 
on smalltooth sawfish, their similarity to the largetooth sawfish 
implies that their reproductive biology may be similar. Genetic 
research currently underway may assist in determining reproductive 
characteristics (i.e., litter size and breeding periodicity).
    No confirmed breeding sites have been identified to date since 
directed research began in 1998. Research is underway to investigate 
areas where adult smalltooth sawfish have been reported to congregate 
along the Everglades coast to determine if breeding is occurring in the 
area.
    Life history information on the smalltooth sawfish has been 
evaluated using a demographic approach and life history data from the 
literature on smalltooth sawfish, largetooth sawfish, and similar 
species. Simpfendorfer (2000) estimates intrinsic rates of natural 
population increase of 0.08 to 0.13 per year and population doubling 
times from 5.4 to 8.5 years. These low intrinsic rates of population 
increase are associated with the life history strategy known as ``k-
selection.'' K-selected animals are usually successful at maintaining 
relatively small, persistent population sizes in relatively constant 
environments. Consequently, they are not able to respond effectively 
(rapidly) to additional and new sources of mortality resulting from 
changes in their environment. Musick (1999) and Musick et al. (2000) 
noted that intrinsic rates of increase less than ten percent were low, 
and such species are particularly vulnerable to excessive mortalities 
and rapid population declines, after which recovery may take decades. 
Thus, smalltooth sawfish populations are expected to recover slowly. 
Simpfendorfer (2000) concluded that recovery was likely to take decades 
or longer, depending on how effectively sawfish could be protected.

Habitat Usage

    At the time of listing, very little information was known about the 
habitat usage patterns of the species. The Status Review (NMFS, 2000) 
and the final listing rule identified habitat loss and degradation as 
the secondary cause of the species' decline. The primary reason for the 
species' decline was bycatch in various commercial and recreational 
fisheries.
    The Status Review described sawfish habitat usage as: ``Sawfish in 
general inhabit the shallow coastal waters of most warm seas throughout 
the world. They are found very close to shore in muddy and sandy 
bottoms, seldom descending to depths greater than 32 ft (10 m). They 
are often found in sheltered bays, on shallow banks, and in estuaries 
or river mouths.'' In the years since the status review, additional 
research on habitat use by smalltooth sawfish has been undertaken. This 
research confirmed the general characterization of habitat use for 
smalltooth sawfish and revealed a more complex pattern of habitat use 
than previously known, with different life history stages having 
different patterns of habitat use.
    A variety of methods have been used to study habitat use patterns 
of smalltooth sawfish, including acoustic telemetry (Simpfendorfer, 
2003),

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acoustic monitoring (Simpfendorfer, unpublished data; Poulakis, 
unpublished data), public encounter databases (Seitz and Poulakis, 
2002; Poulakis and Seitz, 2004; Simpfendorfer and Wiley, 2005a), and 
satellite archival tagging (Simpfendorfer and Wiley, 2005b). The 
majority of this research has targeted juvenile sawfish, but some 
information on adult habitat use has also been obtained.
    MML and the Florida Fish and Wildlife Research Institute (FWRI) 
manage encounter databases containing data on sightings and captures of 
smalltooth sawfish from commercial and recreational fishermen, research 
efforts, and other sources (e.g., divers and boaters). These databases 
provide insight into the habitat use patterns of smalltooth sawfish. To 
request reporting of sightings/captures from the public, MML and FWRI 
(1998-2008) have engaged in various outreach efforts. These efforts 
include placing flyers at boat ramps and tackle/dive shops, media 
releases, articles in fishing magazines, interviews with recreational 
fishing guides and commercial fishers, Web sites, and personal contacts 
with researchers. Standard questionnaires are used to collect encounter 
data (water depth, location, tidal states, gear information, size of 
animal, and various other physical and environmental features). 
Outreach efforts were initially focused primarily in Florida but have 
expanded into areas along the southeastern coasts of the United States 
between Texas and North Carolina.
    Based on our historic and current knowledge of where smalltooth 
sawfish are encountered (coastal areas), we believe recreational 
fishers who primarily fish in coastal areas represent the best source 
of occurrence data for the species. Additionally, Simpfendorfer and 
Wiley (2005a) analyzed the number of registered fishers in Florida by 
county to see if fishing effort affects the distribution of the 
encounters. No strong correlation between the distribution of fishers 
and encounter locations was found. Based on Simpfendorfer and Wiley 
(2005a), we believe that the encounter data are not geographically 
biased.
    Directed research programs conducted by FWRI, MML, FLMNH, and NMFS 
are also a source of encounter data. Directed-research efforts on the 
species are also primarily focused in coastal areas but are limited to 
southwest Florida between Charlotte Harbor and the Florida Keys. The 
sampling methodologies for the directed research efforts are not random 
or stratified: Research efforts are focused in areas where sawfish have 
been encountered, primarily southwest Florida. We anticipate future 
sampling efforts for these and other areas will use a random-stratified 
approach. Research is underway to determine habitat usage patterns, 
site fidelity, movement patterns, and various genetic relationships.
    Encounter and research data provide some insight into adult 
smalltooth sawfish habitat usage patterns. Information on adult 
smalltooth sawfish comes from encounter data, observers aboard fishing 
vessels, and pop-up satellite archival tags (PAT). Data on adult male 
(at least 134 in (340 cm) in length) and adult female (142 in (360 cm) 
in length) smalltooth sawfish are very limited. The encounter data 
suggest that adult sawfish occur from shallow coastal waters to deeper 
shelf waters. Poulakis and Seitz (2004) observed that nearly half of 
the encounters with adult-sized sawfish in Florida Bay and the Florida 
Keys occurred in depths from 200 to 400 ft (70 to 122 m). Simpfendorfer 
and Wiley (2005a) also reported encounters in deeper water off the 
Florida Keys, noting that these were mostly reported during winter. 
Observations on commercial longline fishing vessels and fishery 
independent sampling in the Florida Straits show large sawfish in 
depths of up to 130 ft (40 m) (Carlson and Burgess, unpublished data).
    Seitz and Poulakis (2002) reported that one adult-sized animal, 
identifiable by its broken rostrum, was captured in the same location 
over a period of a month near Big Carlos Pass. This suggests that 
adults may have some level of site fidelity for relatively short 
periods; however, the historic occurrence of seasonal migrations along 
the U.S. East Coast also suggests that adults may be more nomadic than 
juveniles with their distribution controlled, at least in part, by 
water temperature.
    In summary, there is limited information on adult sawfish 
distribution and habitat use. Adult sawfish are encountered in various 
habitat types (mangrove, reef, seagrass, and coral), in varying 
salinity regimes and temperatures, and at various water depths. Adults 
are believed to feed on a variety of fish species and crustaceans. No 
known breeding sites have been identified. Encounter data have 
identified river mouths as areas where many people observe both 
juvenile and adult sawfish. Seitz and Poulakis (2002) noted that many 
encounters occurred at or near river mouths in southwest Florida. 
Simpfendorfer and Wiley (2005b) reported a similar pattern of 
distribution along the entire west coast of Florida. Along the 
Everglades coastal region, Simpfendorfer and Wiley (2005b) report a 
strong association of smalltooth sawfish with the Chatham, Lostmans, 
Rodgers, Broad, Harney, and Shark Rivers.
    Most of the research and encounter data on habitat usage of 
smalltooth sawfish have been obtained on juveniles less than 79 in (200 
cm) in length. Juveniles in this size class are most susceptible to 
predation and starvation (Simpfendorfer, 2006). Like other species of 
elasmobranchs, smalltooth sawfish appear to use nursery areas because 
of the reduced numbers of predators and abundant food resources such 
areas can provide (Simpfendorfer and Milward, 1993).
    Much of the research on smalltooth sawfish juveniles indicates some 
differences in habitat use based on the length of the animals, between 
what are characterized as very small (less than 39 in (100 cm)) and 
small (39-79 in (100-200) cm) juveniles. Most encounters of both very 
small and small juveniles have been within 1,641 ft (500 m) of shore 
(Simpfendorfer, 2006).
    Very small juvenile smalltooth sawfish show high levels of site 
fidelity, at least over periods of days and potentially for much longer 
(Simpfendorfer, 2003; 2006). Limited acoustic tracking studies (five 
animals) have shown that, at this size, sawfish will remain associated 
with the same shallow mud bank over periods of several days 
(Simpfendorfer, 2003). Very small juveniles spend a large portion of 
their time on the same shallow mud or sand banks in water less than 1 
ft (30 cm) deep. Since water levels on individual mud banks vary with 
the tide, the movements of these small animals appear to be directed 
toward remaining in shallow water. The mud banks are very small, and 
preliminary home range size for the tracked animals is estimated to be 
1,076-10,763 ft\2\ (100-1,000 m\2\) (Simpfendorfer, 2003). The longer-
term fidelity to these sites is poorly understood, and ongoing research 
is expected to provide more insight into determining how much habitat 
very small juveniles use on a daily basis. Simpfendorfer (2001) 
concludes that shallow coastal waters represent key habitat for the 
species, and in particular that waters less than 3.3 ft (1 m) may be 
very important as nursery areas. The primary purpose of staying in such 
shallow water is likely to avoid predators, such as bull sharks. 
Additionally, these shallow waters provide warm water temperatures that 
may be utilized to maximize growth rates (Simpfendorfer, 2006).

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Simpfendorfer (2001) concludes that most smalltooth sawfish (adults and 
juveniles) show a preference for water temperatures greater than 17.8 
[deg]C (64 [deg]F).
    In addition to shallow mud banks, very small juveniles also use red 
mangrove prop root habitats in southern Florida (Simpfendorfer and 
Wiley, 2005a). Animals in this size class spend the vast majority of 
their time in very shallow water less than 1 ft (30 cm) deep, and they 
tend to move into mangrove prop roots during periods of high tide. Red 
mangrove habitats also provide foraging opportunities for very small 
and small juveniles, because the prop root system provides nursery 
areas for various fish and crustacean species.
    Small juveniles have many of the same habitat use characteristics 
seen in the very small sawfish. Their association with very shallow 
water (less than 1 ft (30 cm) deep) is slightly weaker, possibly 
because they are better suited to predator avoidance due to their 
larger size and greater experience (NMFS, 2006). They do still have a 
preference for shallow water, remaining in depths mostly less than 3.3 
ft (1 m). Most encounters of small juveniles also occur near red 
mangroves. Site fidelity has also been studied for small juvenile 
sawfish. Several sawfish, approximately 59 in (150 cm) in length and 
fitted with acoustic tags, have been relocated in the same general 
areas over periods of several months, suggesting a high level of site 
fidelity (Simpfendorfer, 2003). The daily home range for these animals, 
based on data from a few animals, appears to be much larger than that 
of very small juveniles (0.386-1.93 mi\2\ or 1-5 km\2\). The recent 
implementation of acoustic monitoring systems to study the longer term 
site fidelity of sawfish has confirmed these observations and also 
indicates that changes in environmental conditions such as salinity may 
be important in driving changes in local distribution and, therefore, 
habitat use patterns (Simpfendorfer, unpublished data).
    Simpfendorfer and Wiley (2005) documented that no encounters 
occurred within habitat in permanent freshwater areas. Many encounters 
occur near river mouths or near sources of freshwater inflow, and 
encounter data suggest that estuarine habitats may be an important 
factor affecting the species' distribution. Simpfendorfer (2001) 
suggests that smalltooth sawfish occur in river mouth areas because of 
the lower salinity, submerged vegetation, or abundant prey. We analyzed 
MML and FWRI encounter data from 1998-2008 for juveniles, and the data 
indicate the majority of the juvenile encounters occurred within 
euryhaline or estuarine waters. Euryhaline/estuarine waters are highly 
productive areas that contain a variety of food sources for the 
smalltooth sawfish. Mullet, clupeids, and various crustacean species 
that are known food sources for the smalltooth sawfish are commonly 
found in estuarine areas.
    Juvenile smalltooth sawfish may require specific salinity regimes 
with specific freshwater inputs, but, at this time, data on specific 
salinity regime requirements for the species do not exist. Ongoing 
studies of habitat use patterns of very small and small juveniles in 
the Caloosahatchee River are expected to provide more insight into the 
habitat used by or necessary for an individual juvenile (less than or 
equal to 79 in (200 cm) in length) smalltooth sawfish. At this time, 
however, there are insufficient data available to determine whether 
specific salinity ranges are requirements of small juveniles.
    Data on large (greater than 79 in (200 cm) in length) juvenile 
smalltooth sawfish are limited, and more information is needed to 
determine the habitat usage patterns and site fidelity characteristics 
of this size class of smalltooth sawfish.

Summary of Comments and Responses

    We requested comments on the proposed rule to designate critical 
habitat for the endangered U.S. DPS of smalltooth sawfish on November 
20, 2008 (73 FR 70290), and on January 29, 2009 (74 FR 5141), we 
reopened the comment period until February 13, 2009. We held two public 
hearings to facilitate public participation, the proposed rule was 
available on our regional Web-page, and comments were accepted via 
standard mail, facsimile, and through the Federal eRulemaking portal. 
In addition to the proposed rule, the draft impact report required 
under Section 4(b)(2) of the ESA was posted. We obtained independent 
peer review on both the scientific information in the proposed rule and 
on the Draft 4(b)(2) Report (NMFS, 2008).
    We have considered all peer review and public comments, and those 
that are responsive to the designation are addressed in this final rule 
and discussed in the following summary. We have assigned public 
comments to major issue categories and, where appropriate, have 
combined similar comments.

Peer Review Comments

    Comment 1: Two reviewers stated NMFS used the best available 
information on the species and also stated the areas proposed for 
designation were justified by the available data.
    Comment 2: One reviewer noted the daily home range area for small 
juveniles was calculated incorrectly for small juveniles. The home 
range value of 1-5 km\2\ equates to 0.386-1.93 mi\2\.
    Response: We corrected the home range value in our discussion in 
this rule.
    Comment 3: One reviewer stated that NMFS should revise the critical 
habitat rule if new data identify additional nursery areas, discrete 
areas used by other size classes of animals, or mating aggregations.
    Response: NMFS will consider revising the critical habitat 
designation if new data identify areas containing features essential 
for the conservation of the species, or areas in the species' 
unoccupied range that are essential for the conservation of the 
species.
    Comment 4: A reviewer stated that NMFS should monitor freshwater 
flow regimes (salinity fluctuations, dissolved oxygen, flow rates), and 
nutrients, red mangroves, and submerged aquatic vegetation in the 
designated areas.
    Response: NMFS is required to consult under section 7 of the ESA on 
Federal actions that may affect listed species, including the 
smalltooth sawfish, or their designated critical habitat. Therefore, 
NMFS would consult under section 7 of the ESA on the effects from 
alterations of freshwater flow regimes on the sawfish and its 
designated critical habitat. Ongoing research is also investigating 
habitat use and movements of juvenile sawfish in relation to salinity 
regimes.
    Comment 5: A reviewer stated that we should consider designating 
other areas that contain the same essential features included in the 
two nursery areas in southwest Florida, and specifically suggested 
Tampa Bay and the Indian River Lagoon. This peer reviewer stated that 
we did not appropriately consider the amount of suitable habitat that 
remains outside of the proposed critical habitat areas, specifically 
within Tampa Bay and the Indian River Lagoon, given that the species 
may need additional nursery areas in the future for recovery.
    Response: We do recognize that the sawfish may need additional 
nursery areas for its recovery, that red mangroves and shallow 
euryhaline habitats exist outside the designated areas, and that 
smalltooth sawfish were historically common in some of those areas 
(e.g., Indian River Lagoon). However, sawfish also historically appear 
to have used areas that do not contain mangroves as nursery areas. The 
key conservation function of the critical

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habitat designation is to facilitate recruitment into the adult 
population by protecting juvenile nursery areas. Based on the best 
available data and our understanding of what constitutes a nursery area 
for sawfish, the areas designated as critical habitat are the only 
areas that are currently nursery areas. We cannot predict with any 
certainty what new nursery areas may be established by the species. If 
new information identifies nursery areas outside of the designated 
critical habitat, NMFS will consider revising this rule.
    Comment 6: A reviewer suggested a more complete Executive Summary 
in the 4(b)(2) Report that includes the conclusions of the Economic and 
Other Relevant Impacts sections of the report.
    Response: We have revised the Executive Summary in the Final 
4(b)(2) Report to include the conclusions of all three impact sections 
of the report.
    Comment 7: A reviewer requested more detail on the increased 
probability of recovery of listed species as a result of designating 
critical habitat and requested a long-term study of the relationship 
between recovery rates of listed species and critical habitat 
designation.
    Response: The commenter's suggestion is noted. NMFS does evaluate 
the recovery progress of listed species, including submitting reports 
to Congress every 2 years on the status of efforts to develop and 
implement recovery plans for listed species under our purview, and on 
the status of all species for which recovery plans have been developed 
under section 4(f)(3)) of the ESA. Between October 1, 2006, and 
September 30, 2008, of the 59 domestic endangered or threatened species 
listed under the ESA, 22 (37 percent) were stabilized or improving; 17 
(29 percent) were known to be declining; and 20 (34 percent) were 
unknown or mixed in their status (http://www.nmfs.noaa.gov/pr/pdfs/laws/esabiennial2008.pdf). A recent study suggests listed species with 
designated critical habitat for 2 or more years may be more than twice 
as likely to have an improving population trend and less than half as 
likely to be declining compared to listed species without designated 
critical habitat (Taylor et al., 2005). Of the 59 domestic listed 
species under NMFS' purview, 39 have designated critical habitat, and 
16 of these species were judged to be stable or improving in the 2008 
report discussed above. Most of these designations have not been in 
place for 2 years or longer, and it is likely too early in the recovery 
process to judge the contribution of critical habitat to the recovery 
of these species. It should also be noted that though critical habitat 
protects features essential to a species' conservation from destruction 
or adverse modification by Federal actions, critical habitat is not 
intended to be the sole activity that brings about species' recovery.
    Comment 8: A reviewer asked if saving the smalltooth sawfish would 
save the local fishing industry and whether the rule protects mangroves 
or smalltooth sawfish.
    Response: Our primary goal is to support the key conservation 
objective for the species by protecting the essential features in its 
nursery areas. The rule is not intended to directly protect smalltooth 
sawfish from harm, but rather is intended to promote its recovery by 
preventing destruction or adverse modification of the physical and 
biological habitat features essential to its conservation that may 
result from Federal actions. The Final 4(b)(2) Report considered, in 
the analysis of other relevant impacts, that the critical habitat 
designation is likely to provide additional protections to mangrove 
habitat and the fisheries that depend on those habitats. The fishing 
industry may, therefore, also benefit from this designation.

Public Comments

A. Comments on Providing the Public Adequate Notice on the Proposed 
Rule
    Comment 1: We received several comments stating we did not provide 
adequate notice for public review and comment on the proposed rule.
    Response: NMFS published the proposed critical habitat rule for the 
smalltooth sawfish on November 20, 2008 (73 FR 70290), and requested 
pubic comments by January 20, 2009. On December 9, 2008, we published a 
notice in the Federal Register (73 FR 74681) announcing the dates, 
times, and locations of two public hearings to receive public comments 
on the proposed critical habitat rule. In addition to the Federal 
Register notice announcing the public hearings, we advertised the 
hearings in relevant local newspapers (News-Press of Ft. Myers on 
December 8, 2008; Naples-News on December 14, 2008). During the public 
comment period, NMFS received several requests to extend the public 
comment period. On January 29, 2009 (74 FR 5141), NMFS extended the 
public comment period to February 13, 2009. We believe the public 
received adequate opportunity to review and comment on the proposed 
rule.
B. Comments on the Available Data for the Designation
    Comment 2: Several commenters reacted to the statements in the 
proposed rule describing the incomplete information on the habitat 
usage patterns of the species, particularly adults, and suggested we 
have incomplete information on which to base the designation. Another 
commenter suggested we should do more research on the species before we 
designate critical habitat. Several commenters expressed concern about 
basing the rule on data from 2003 or earlier.
    Response: The ESA requires we use the best available scientific 
information to support the proposed designation. It also provides that 
we may take up to 1 additional year after a species is listed, if 
critical habitat is not determinable at the time of listing. Beyond 
that year, during which NMFS further studied the species' habitat 
needs, we may not wait to designate critical habitat to conduct more 
research. We used all available information sources (literature, 
research data, government agencies, and public encounter data) to 
identify the specific areas and the essential features. No other 
sources of data on the species were identified during the public 
comment period. In contrast to the lack of information on specific 
habitat usage that currently precludes designation of critical habitat 
areas for adult smalltooth sawfish, we believe the available 
information provides a sound basis for designating nursery areas used 
by juveniles as critical habitat. Finally, the rule is based on 
juvenile encounter data from 1998 through the present; a NMFS staff 
member misstated the applicability of the ``time of listing'' provision 
in the statute at one of the public hearings--that applies to 
identifying the occupied range of the species.
    Comment 3: A commenter suggested we re-evaluate the critical 
habitat designation in 5 years to determine the habitat needs for 
adults.
    Response: We have not identified adult aggregation, mating, and/or 
pupping areas, and no information on historic aggregation, mating, and/
or pupping sites exists, but these aspects of the species' life history 
are being investigated by researchers. If information on adult 
smalltooth sawfish becomes available which suggests areas that may be 
essential to the conservation of the species, we will consider revising 
the critical habitat designation.
    Comment 4: A commenter requested information on how the encounter 
data were collected and how far the animals travel up the Cape Coral 
canals.

[[Page 45358]]

Additionally, the commenter wanted to know which canals smalltooth 
sawfish are using.
    Response: Smalltooth sawfish encounter data from FWCC and MML's 
were used to develop the proposed rule. Encounter data are reported by 
the public and by researchers. Recreational and commercial fishers, 
boaters, divers, and the general public report smalltooth sightings and 
captures to the FWCC and MML. The encounter reports may include 
information such as the date, location, size of animal, water depth, 
benthic habitat in the area, the type of fishing gear used, and 
photographs, etc. Information gathered by researchers is similar to 
what the public reports but may include more details about the animal 
and may include specific movement information for tagged animals. 
Encounter data and FWCC directed research have documented smalltooth 
sawfish use of multiple canals within the Cape Coral canal system; each 
canal is not named thus we cannot list them specifically. Ongoing 
smalltooth sawfish research conducted by the FWCC has shown that tagged 
animals travel deep into the canals and may use the canals for months 
at a time, making daily excursions into the Caloosahatchee River. 
Existing encounter data support the usage of the Cape Coral canal 
system where it is accessible to smalltooth sawfish.
    Comment 5: One commenter questioned the credibility of sightings 
and encounter data, reported by fishermen, as a basis for the rule.
    Response: There are a number of indices of the reliability and 
suitability of encounter and sightings data available for this 
designation. First, the encounter reporting programs are longstanding 
and the researchers involved have established trust and personal 
relationships with a good portion of the fishing community involved in 
reporting encounters or recommending to others that they report 
encounters. MML and FWCC only include encounter reports in their 
databases when the reports have met some measures of credibility, for 
example, if the description of the fish is consistent with the 
morphological characteristics of the species. The encounter data have 
also been validated in a number of respects by scientific research 
carried out by the organizations that maintain the encounter databases.
    Comment 6: Several commenters stated they had never seen and/or 
caught a smalltooth sawfish in some of the areas (San Carlos Bay and 
southwest Florida) proposed for designation.
    Response: Encounter data, which includes reports from recreational 
and commercial fishers, researchers, and snorkelers, indicate the 
species is encountered within San Carlos Bay and that most encounters 
of juveniles occur in southwest Florida. Sawfish are highly endangered 
benthic fish, and it is not surprising that even long-time local 
residents have never seen one.
C. Comments on Existing Resource Protections, Regulatory Burdens, and 
Rulemaking Requirements Generally
    Comment 7: A commenter asked if the President's Executive Order on 
Regulatory Review (74 FR 4435; January 26, 2009) would stop NMFS from 
publishing the critical habitat rule.
    Response: No, President Obama's Memorandum to the Heads of 
Executive Departments and Agencies, dated January 20, 2009, regarding 
additional administration review of rules published prior to January 
21, 2009, does not apply to this rule because the timing of the 
proposed and final smalltooth sawfish critical habitat rules is 
mandated under a court-approved settlement agreement.
    Comment 8: Several commenters stated that existing laws and 
regulations, including State laws, are currently in place to protect 
habitats covered by the proposed designation, and that an additional 
layer of government regulation should be avoided.
    Response: The commenter is correct in part. Existing laws and 
regulations are in place to protect marine and estuarine habitats, 
including mangroves. However, none of the laws or regulations 
applicable to the habitats included in the proposed designation provide 
complete protection to the habitats. In a wide variety of 
circumstances, existing laws and regulations allow for destruction of 
habitat, and in instances where mitigation may be required, off-site 
and out-of-kind mitigation are possible outcomes. Additionally, 
existing laws and regulations do not expressly require consideration of 
the conservation needs of the smalltooth sawfish in determining whether 
impacts to habitat are allowable or mitigations are acceptable. This 
final rule will provide unique additional protections to the critical 
habitat features essential to the sawfish's conservation, resulting in 
project modifications where existing laws would not require such 
modifications.
    Comment 9: A commenter stated that we did not need to protect 
habitat for the smalltooth sawfish because the Florida net ban has 
eliminated deaths from bycatch.
    Response: Florida voters approved a constitutional amendment 
banning the usage of most types of inshore nets in 1995. The net ban is 
extremely important in addressing a major threat to smalltooth sawfish, 
because their saws become entangled in the nets, and fishers often 
killed and/or removed the saw from captured animals. The net ban 
eliminated a great deal of smalltooth sawfish bycatch; however, the 
species is still caught as bycatch in several fisheries (shrimp 
trawling, bottom long-line fisheries, etc.). In addition to measures to 
prevent or limit take of listed species, the ESA requires NMFS to 
designate areas that meet the statute's definition of critical habitat, 
with discretion to consider excluding certain areas from a designation 
based on specific findings about the costs and benefits of a 
designation. As stated in the proposed rule, juvenile smalltooth 
sawfish use highly specific nearshore areas as nursery areas for the 
first several years of their lives, where vulnerable juveniles find 
protection from predators and ample food resources for early stage 
growth. In the areas we have identified as existing nursery areas, 
juvenile sawfish need several essential physical and biological 
features: red mangroves and shallow, euryhaline habitats characterized 
by water depths between the Mean High Water line and 3 ft (0.9 m) 
measured at Mean Lower Low Water. These features are essential to the 
conservation of the species because they support the key conservation 
function of facilitating recruitment of juveniles into the adult 
population. This conservation objective is not accomplished by the 
inshore net ban.
    Comment 10: A commenter stated they are concerned about the length 
of time it takes to complete section 7 consultations under the ESA, 
that NMFS takes a long time to complete section 7 consultation, and 
that these times will increase with designation of critical habitat.
    Response: Federal agencies are currently required to consult on 
actions that may affect the fish, including in the areas proposed for 
designation, in order to ensure their actions are not likely to 
jeopardize the continued existence of the species. Designated critical 
habitat does require a second, distinct analysis of potential effects 
of Federal actions: Federal agencies must ensure their actions are not 
likely to destroy or adversely modify critical habitat. Our analysis of 
impacts of the designation indicates that the designation will not 
require consultations for categories of Federal actions that are not 
already subject to consultation to avoid jeopardizing the species. 
Delays can occur during the section 7 review

[[Page 45359]]

process when NMFS is lacking the pertinent information needed to 
determine the effects on a species or its designated critical habitat. 
NMFS does not expect delays in the section 7 consultation process if we 
receive the necessary information to complete our analysis of the 
effects on the species and/or designated critical habitat. We will also 
work with interested Federal agencies to evaluate whether streamlined 
section 7 consultation procedures can be adapted for evaluating Federal 
actions that may affect the smalltooth sawfish, its designated critical 
habitat, or both.
    Comment 11: A commenter stated that since existing critical habitat 
for the American crocodile provides protection for the smalltooth 
sawfish, the proposed rule has overlapping protections and asked us how 
we would deal with the overlapping protections.
    Response: This is not correct. Smalltooth sawfish may use some of 
the same habitats utilized by the American crocodile along the 
Everglades coast, but the critical habitat designation and the listing 
protections for the American crocodile are established to promote the 
recovery and conservation of that species specifically. American 
crocodile designated critical habitat does not protect the physical and 
biological features essential for the conservation of the smalltooth 
sawfish. The U.S. Fish and Wildlife Service (FWS) has jurisdiction over 
the American crocodile, and NMFS has jurisdiction over the smalltooth 
sawfish. NMFS and FWS will consult under section 7 of the ESA for their 
respective species even though the critical habitat designation may 
over-lap geographically.
D. Comments on the Critical Habitat Boundaries and Areas Included or 
Omitted From the Designation
    Comment 12: One commenter suggested we used arbitrary boundaries 
(e.g., roads, county lines, etc.) in establishing the unit boundaries 
and suggested we should instead use habitat-based boundaries (e.g., 
creeks and mangroves). The commenter also suggested we include entire 
creeks and canal systems that are accessible to smalltooth sawfish near 
the proposed Charlotte Harbor Estuary Unit. The commenter proposed four 
specific changes in this regard: (1) The boundary located near the 
Myakka River should be moved up-river where the mangroves end at 
approximately 27[deg]4.500[min] N; (2) the boundary near Harborview 
Road, U.S. 41, and SR 776 should include Shell Creek extending to the 
dam and upriver to 27[deg]4.500[sec] N; (3) The southern extent of the 
Charlotte Harbor Estuary Unit boundary should be Wiggins Pass/
Calcohatchee River instead of the Charlotte/Lee County line; and (4) 
``back bay'' boundaries should include entire creek and canal systems 
in the Charlotte Harbor Estuary Unit.
    Response: We elected not to make the requested changes to the unit 
boundaries. The boundaries were chosen by first applying the Heupel et 
al. (2007) model for defining nursery areas to the juvenile sawfish 
encounter data. After broad areas being used as nursery areas were 
identified, the essential physical and biological features within these 
nursery areas were identified. The boundaries of the critical habitat 
units were identified in accordance with our regulations at 50 CFR 
424.02(c), using reference points and lines on topographic maps to 
describe the specific boundaries of the nursery areas. Roads, man-made 
structures, and county line or park boundaries were used instead of 
habitat boundaries (e.g., extent of red mangroves or entire creek 
systems) because they are easily identifiable by the public and because 
they represent the boundaries of the nursery areas.
    Comment 13: A commenter suggested we consider expanding the 
critical habitat designation to include unoccupied areas that could be 
essential to the species' conservation, and noted that the species used 
to be found in coastal areas as far distant from peninsular Florida as 
New York and Texas.
    Response: ESA section 3(5)(A)(ii) defines critical habitat to 
include specific areas outside the geographical area occupied at the 
time of listing if the areas are determined by the Secretary to be 
essential for the conservation of the species. Regulations at 50 CFR 
424.12(e) specify that we shall designate as critical habitat areas 
outside the geographical area presently occupied by a species only when 
a designation limited to its present range would be inadequate to 
ensure the conservation of the species. Habitat-based recovery criteria 
in the recovery plan suggest areas outside the current occupied range 
may be important to the species' recovery. However, based on the best 
available information, we cannot identify unoccupied areas that are 
currently essential to the conservation of the species. If information 
on essential features or habitats for the species becomes available, we 
will consider revising this critical habitat designation.
    Comment 14: A commenter suggested we include Estero Bay to Marco 
Island in the critical habitat designation because the area contains 
the essential features, and the areas are connected to the Charlotte 
Harbor Estuary Unit and the Ten Thousand Islands/Everglades Unit.
    Response: Areas within Estero Bay and Marco Island do contain some 
of the essential features described within the proposed critical 
habitat designation; however, red mangroves are much sparser and 
salinity is much more fully marine than in the designated units. We 
determined that this area between the designated units does not meet 
the definition of a nursery area for sawfish, and that juvenile sawfish 
are not likely to use the area to travel between the two designated 
nursery areas. Juvenile smalltooth sawfish are rarely encountered 
within these areas, and juvenile encounters in the area do not have a 
higher density than the mean density outside the area. Encounter data 
do not indicate juveniles repeatedly use the area over years, and no 
site fidelity pattern exists in the area. If new data indicate these 
areas are indeed nursery areas, we will consider revising the critical 
habitat designation.
    Comment 15: A commenter stated the scope of the designation is too 
broad and includes habitats that are not shallow or near mangrove 
roots. Two other commenters suggested the designation should be limited 
to targeted areas where NMFS has documented specific use of the areas.
    Response: As stated in the proposed rule, the features can be found 
unevenly dispersed throughout the proposed critical habitat boundaries. 
Limits on existing mapping methodologies make it infeasible to define 
the specific areas more finely than described herein. Therefore, there 
are locations within the critical habitat boundaries where the 
essential features do not exist (e.g., deep water areas). The 
regulatory impact of the critical habitat designation, however, flows 
entirely from the requirement to consult on Federal actions that may 
affect the critical habitat's essential features. If an action only 
impacts locations which do not contain either essential feature, the 
action would pose no effect to the critical habitat, and no section 7 
consultation would be required. We also believe that limiting the 
designation to areas where use has been documented at a specific place 
and time would not be an appropriate application of the ESA. Single 
encounter points would not encompass the full home ranges used by 
juveniles. Moreover, the ESA requires designation of critical habitat 
containing features essential to a species' conservation, and thus 
contemplates inclusion of areas containing features necessary for 
population growth.

[[Page 45360]]

Further, the available information on sawfish almost certainly does not 
document the existence of every juvenile using the nursery areas. We 
therefore disagree that the scope is too broad: the units are 
appropriately defined as the areas containing (but not composed 
entirely of) the essential features, and there is no regulatory impact 
of including embedded locations without the essential features.
E. Comment on Essential Features
    Comment 16: A commenter stated they had never seen seagrasses in 
the Cape Coral canals and could not understand why NMFS identified 
seagrasses as an essential component of the critical habitat.
    Response: Seagrasses are not an essential feature of the critical 
habitat.
F. Comments on the Draft 4(b)(2) Report and the Analysis of Economic 
Impacts
    Comment 17: One commenter noted an error in the Draft 4(b)(2) 
Report in the estimated values for mangrove-dependent fish species for 
2005.
    Response: NMFS acknowledges that these calculations were 
inaccurate, and they have been corrected in the Final 4(b)(2) Report. 
The value in the ``Pounds'' column label was listed in 1,000s of pounds 
but actually represented pounds. We removed the 1,000 from the column, 
and the column now reflects the correct poundage of landings. 
Additionally, the commenter noticed an error in the ``Value'' column 
which also indicated the values were in thousands of dollars. We 
corrected the errors in Tables 5, 7, 9, and 11 to reflect the correct 
values for both ``Pounds'' and ``Value.''
    Comment 18: Several commenters expressed unspecific concerns about 
potential economic impacts on communities and quality of life expected 
from the designation. A few commenters stated that NMFS did not address 
the economic impacts on the marine construction, real estate, and 
residential construction industries in the proposed rule and asked why 
the economic impacts cannot be more precisely measured.
    Response: The 4(b)(2) Report identifies and analyzes the expected 
economic impacts, including monetary costs on marine construction 
activities where feasible, associated with the proposed rule. Federal 
guidance on estimating the costs and benefits of proposed rules allows 
presenting economic impacts in qualitative metrics if monetization is 
not feasible or reliable (EO 12866). Administrative costs to Federal 
and third parties (e.g., permit applicants) expected to result from ESA 
section 7 consultations required by the designation were estimated by 
projecting the number of future consultations associated with the 
proposed rule. Projected future costs resulting from potential project 
modifications that may be required to avoid destruction or adverse 
modification of the designated critical habitat cannot be determined 
with any certainty given the uncertainty in, among other things, 
predicting the precise location and scope of future projects. The total 
incremental administrative costs for Unit 1 are estimated to range from 
$1,039,500 to $1,386,000 (depending on complexity of the consultation) 
over the 10-year planning period. The total incremental administrative 
costs for Unit 2 are estimated to range from $108,000 to $144,000 
(depending on complexity of the consultation) over the 10-year planning 
period. Most of these costs will be borne by Federal agencies involved 
in ESA section 7 consultation; maximum total projected administrative 
costs to third parties (e.g., permit applicants) due to all 85 future 
consultations are estimated to be $136,200 to $170,000 over the next 10 
years. The commenters did not provide us with specific information to 
determine any other potential future economic impacts from the proposed 
rule. We believe the 4(b)(2) Report provides the best information on 
predicting future section 7 consultation economic costs from the final 
rule. We have also responded to concerns about the rule's potential to 
impact specific existing activities in affected communities in the 
following section.
    Comment 19: One commenter stated that the analysis of potential 
economic impacts to single-family dock construction/repair projects 
identified in the 4(b)(2) report is inadequate because we did not 
identify costs for some of the potential project modifications that 
might be recommended to dock projects during section 7 consultation. 
The commenter stated that it is inappropriate for NMFS to decide not to 
consider exclusions from Unit 1 due to economic impacts in the absence 
of such information. The commenter suggested we could estimate economic 
impacts associated with the ``average percentage decrease in number of 
docks constructed per year due to time delays associated with the 
consultation process and as well as the percentage decrease in cost for 
construction due to reduced size.''
    Response: As we have explained in the rule and 4(b)(2) report, 
specific costs that may result from project modifications recommended 
by NMFS to avoid destruction or adverse modification of critical 
habitat cannot be determined in all instances because such costs are 
highly variable and depend on such unknown future variables as the 
specific scope and location of future projects. We think the 
commenter's suggested surrogate for future economic impacts associated 
with costs of dock project modifications would be too speculative. 
Further, a measure of the costs to third parties such as dock permit 
applicants from participation in the consultation process is provided 
in the 4(b)(2) report; this would include any costs due to delays. As 
stated in the rule and 4(b)(2) report, we believe the information 
available to project the numbers, types, and distribution of potential 
future Federal actions that may trigger ESA section 7 consultation, and 
identify the types of potential project modifications often associated 
with these types of projects, provides a reasonable basis for 
evaluating potential economic impacts of the designation, even though 
some of the impacts are only qualitatively identified. Our assessment 
projects that a limited scope of impacts will result from the 
designation (about 8 consultations per year in Unit 1). Consultation 
would be required for those projects even in the absence of the 
critical habitat designation, to protect the sawfish. Finally, the 
conservative approach to the assessment likely overestimates numbers of 
formal consultations and project modifications that may be required. On 
these bases, we do not believe evidence of economic impacts warrants 
our exercise of our discretion to consider excluding areas from the 
designation.
    Comment 20: One commenter stated that the rule has the potential to 
impact private property rights in dock/seawall replacement permits or 
new permits, and in dredging of canals to the extent that may 
constitute a taking of private property.
    Response: The takings implications of the rule were evaluated. The 
rule will not result in a physical invasion of private property, or a 
complete denial of all use or value of any private property interest. 
Based on the importance of the societal interest in designating 
critical habitat for endangered species, and the limited nature of 
impacts to private property that may result from the designation 
identified in the 4(b)(2) report, we determined that the designation 
will not result in a regulatory taking of private property.
    Comment 21: One commenter stated that we did not justify nor 
provide documentation for our conclusion that secondary costs to local 
or regional

[[Page 45361]]

economies are unlikely to result from the designation.
    Response: We disagree. We believe the 4(b)(2) impacts report 
supports our determination that impacts to the scale that affects local 
or regional economies are not likely to result from the designation. We 
do not expect measurable reductions in regional revenues or employment 
or growth to result from the types of project modifications that may be 
required to federally permitted actions to avoid destruction or adverse 
modification of critical habitat. We received no information to the 
contrary from this or other commenters, including Federal agencies most 
likely to be required to consult with NMFS as a result of the 
designation. We contacted relevant planning agencies in developing our 
impacts report, and received no reports of planned projects or 
developments over the next 10 years that would require ESA consultation 
and that would be of a scale to have impacts on local or regional 
economies if they required modifications due to the critical habitat 
designation.
G. Comments on Potential Impacts of the Designation on Ongoing 
Activities
    Comment 22: The U.S. Army Corps of Engineers (ACOE) requested we 
exclude authorized Federal channels (Gordon Pass/Naples to Big Marco, 
Key West Harbor, Everglades Harbor, Largo Sound, Charlotte Harbor, Key 
West Bight & Garrison Bight, Ft. Myers Beach/Matanzas Pass, and the 
Intracoastal Waterway Caloosahatchee River to Anclote River) and 
existing residential canals from the critical habitat designation. Two 
municipalities also requested that residential canals and waterways in 
their boundaries be excluded where these systems are maintained at 
depths greater than 3 ft. (0.9 m) at MLLW, and do not provide the 
essential features. Several commenters requested exemptions for 
dredging of channels or canals in existence at the time of the 
designation.
    Response: Exclusions from a critical habitat designation may be 
proper where the benefits of exclusion outweigh the benefits of 
inclusion of areas in a designation. Exclusions are not applicable to 
areas, like those proposed by the ACOE, which will not be impacted by 
the designation because they do not provide the essential features of 
critical habitat and will not require section 7 consultation for 
activities in those areas. As stated in the proposed rule, all existing 
man-made structures such as boat ramps, docks, pilings, maintained 
channels or marinas that do not provide the essential features that are 
essential to the species' conservation are not part of this 
designation. The three existing federally authorized channels located 
within the proposed designation are the Charlotte Harbor, Ft. Myers 
Beach (Matanzas Pass), and portions of the Intracoastal Waterway in the 
Caloosahatchee River. These existing Federal channels have been 
authorized to be dredged and maintained to depths greater than 3 ft 
(0.9 m) at MLLW. The channels may contain the euryhaline component of 
the shallow habitat essential feature, but they do not contain the 
water depth component, or the red mangrove essential feature, and thus 
would not be impacted by the designation. This also applies to 
residential canals, or portions of these canals, that have been 
authorized and dredged and maintained to depths greater than 3 ft (0.9 
m) at MLLW. However, it is also important to note that the edges or 
banks of maintained channels or canals outside the footprint authorized 
to be dredged and maintained, may provide the essential features.
    Comment 23: The ACOE requested a description of what is considered 
a maintained channel.
    Response: We consider a maintained channel to be a channel that is 
dredged periodically, as necessary, to maintain its original authorized 
dimensions (depth, width, etc.).
    Comment 24: Several commenters expressed concern that the 
designation of smalltooth sawfish critical habitat would prohibit 
marine construction or maintenance of existing private or public 
infrastructure (i.e., maintenance dredging, docks, piers, jetties, boat 
ramps and seawalls etc.).
    Response: If a proposed project authorized, funded, or carried out 
by a Federal agency includes construction of a new structure, and the 
structure may affect a listed species or its designated critical 
habitat, the standard ESA section 7 consultation requirement would 
apply. Proposed projects may require modifications, if they would 
destroy or adversely modify critical habitat. Projects would only be 
prohibited if there were no modifications or alternatives to the 
proposed project that would avoid destruction or adverse modification 
of critical habitat. If future projects in the areas covered by the 
designation are similar in nature as past activities, based on our 
analysis of impacts, we believe modifications should be available to 
allow projects to be implemented.
    Comment 25: The ACOE requested an exemption from the rule for 
activities that are managed under the Comprehensive Everglades 
Restoration Program (CERP) program in the proposed areas because water 
discharges from Lake Okeechobee may be necessary when water levels pose 
a threat to property and human lives, and responding to this type of 
emergency could be impeded by having to consult under the ESA.
    Response: The essential features in the proposed critical habitat 
areas may be affected by future and current activities authorized and/
or funded through the CERP program. Federal agencies are required to 
consult under section 7 of the ESA to ensure their actions are not 
likely to jeopardize the continued existence of listed species or 
result in destruction or adverse modification of their critical 
habitat. CERP projects like those described by the commenter may affect 
the designated critical habitat by, for example, altering the 
euryhaline nature of the shallow habitat areas included in the 
designated units. Future CERP projects may also benefit the species by 
restoring habitats that may be utilized by smalltooth sawfish. We 
believe the section 7 consultation process provides the best process 
for evaluating effects from future and ongoing CERP activities, and 
there are a number of mechanisms that will allow consultation without 
impeding the ACOE's response to water level emergencies, such as 
emergency consultations or programmatic consultations. The ESA allows 
for particular areas to be excluded from a critical habitat designation 
on the basis of economic, national security, or other relevant impacts; 
it does not provide for exempting classes of activities from 
consultation requirements. Based on the information provided by the 
ACOE on this issue, NMFS cannot identify a basis for excluding critical 
habitat areas from the designation based on potential future CERP and 
Lake Okeechobee discharge activities.
    Comment 26: A few commenters stated that residential canals and 
waterways should be excluded from critical habitat designation if these 
canal systems are not accessible to the species because of water 
control structures such as weirs and dams.
    Response: As stated in the proposed rule, areas behind water 
control structures that are not accessible to smalltooth sawfish are 
not part of the designation. Areas located within existing canals or 
waterways that are not accessible to smalltooth sawfish because access 
is prohibited by a weir or dam in existence at the time of the 
designation are not part of the designation even though they may be 
located within the critical habitat boundaries; installation

[[Page 45362]]

of new weirs or dams in the future may require section 7 consultation 
under the ESA if a Federal permit is required for the structure and 
installation of the structure could affect the essential features of 
sawfish critical habitat.
    Comment 27: Several commenters expressed concerns that the 
designation of critical habitat would result in restriction on boating 
and fishing activities and other public use of waterways within the 
critical habitat boundaries.
    Response: Nothing in the rule states that boater access or fishing 
activities will be restricted within smalltooth sawfish critical 
habitat. As stated in the proposed rule, the primary impacts of a 
critical habitat designation result from the ESA section 7(a)(2) 
requirement that Federal agencies consult with NMFS to ensure their 
actions are not likely to result in destruction or adverse modification 
of critical habitat. Furthermore, a critical habitat designation does 
not result in the creation of closed areas, preserves, or refuges. 
There are no individual prohibitions on any activities within critical 
habitat. The transit through or anchoring of a vessel within designated 
critical habitat is not prohibited. Additionally, the designation of 
critical habitat does not create any closed fishing areas. Recreational 
boating and fishing would only be affected by the designation if the 
activity involved requires a Federal permit of some kind and the 
permitted activity has the potential to adversely affect one of the 
essential features on which the designation is based, red mangroves or 
shallow, euryhaline coastal habitats.
    Comment 28: NMFS received multiple comments requesting that the 
commercial aquaculture production of shellfish be excluded from the 
designation of critical habitat. Additionally, commenters expressed 
concern that the harvesting or culturing of shellfish was not 
considered in NMFS' economic analysis.
    Response: As discussed in response to Comment 22, particular areas 
may be excluded from a designation on the basis of economic, national 
security, or other relevant impacts. The ESA does not provide for 
exempting classes of activities from the requirements of section 7 
applicable to designated critical habitat. Although we have no past 
record of section 7 consultation regarding Federal permitting of 
commercial shellfish aquaculture activities, the commenters acknowledge 
that Federal permits may be required for placement of aquaculture 
materials in navigable waters. Thus, we have added a discussion in the 
Final 4(b)(2) Report regarding shellfish aquaculture and one 
anticipated future formal section 7 consultation with the ACOE for 
these activities that may occur in designated critical habitat for the 
smalltooth sawfish. Additionally, the commercial shellfish aquaculture 
may occur in areas that do not provide the critical habitat features. 
Information provided by one commenter suggests that a majority of these 
actions take place in water depths greater than 3 ft (0.9m) at MLLW. 
Therefore, they do not contain the water depth component of the 
essential features and would not be affected by the designation. In 
areas where critical habitat features are present and may be impacted 
by a proposed activity, we believe that the section 7 consultation 
process is the appropriate mechanism for evaluating effects to proposed 
critical habitat resulting from these activities. Based on our impacts 
analysis for the single projected future consultation for hard clam 
aquaculture activities, we did not find a basis for exercising our 
discretion to consider excluding any areas from the designation due to 
impacts on these activities. We expect the potential consultation 
administrative costs to increase by $18,000 for this formal 
consultation. We cannot determine the specific modification costs that 
may be associated with this consultation since we do not know the 
future locations and specific habitat conditions or potential project 
sites. We expect project modifications may involve project relocations 
to deeper water and/or monitoring.
    Comment 29: One commenter stated that mangrove removal should not 
be permitted within designated critical habitat.
    Response: The rule does not prohibit mangrove removal per se. The 
proposed rule requires Federal agencies to consult under section 7 of 
the ESA for activities occurring within proposed critical habitat that 
may affect the essential features including, but not limited to, red 
mangrove impacts. If activities that involve removal of mangroves 
require a Federal permit or use Federal funding, the effect of that 
mangrove removal will be evaluated during section 7 consultation to 
determine whether the proposed removal can and should be modified to 
avoid adversely affecting or destroying or adversely modifying critical 
habitat. Not every adverse impact on the essential features of 
designated critical habitat will constitute destruction or adverse 
modification of critical habitat; whether an adverse impact rises to 
that level depends on factors including, but not limited to, the type 
of project, the area, the usage by sawfish, the nature and extent of 
the impacts, the nature of critical habitat in areas adjacent to the 
project, etc.
    Comment 30: One commenter wanted to know how the designation of 
critical habitat would affect an existing ``blanket permit'' received 
from the ACOE to remove vegetation for seawall installation within Cape 
Coral interior canals.
    Response: Our regulations at 50 CFR 402.16 require reinitiation on 
completed consultations if critical habitat is designated that may be 
affected by an ongoing action covered by a completed consultation. 
Thus, the ACOE may reinitiate section 7 consultation on the existing 
federally authorized activities if ongoing or future actions covered by 
the permit to which the commenter is referring may affect the sawfish's 
critical habitat features.

Summary of Changes From the Proposed Critical Habitat Designation

    Based on the comments received and our review of the proposed rule, 
we have made the following changes from the proposed rule and Draft 
4(b)(2) Report to the final rule and its Final 4(b)(2) Report.
    1. We have corrected the error in the pounds and values associated 
with the ``Commercial Landings of Florida Mangrove-Dependent Species'' 
in Tables 5, 7, 9, and 11 in the 4(b)(2) report. See Comment 17 for an 
explanation of the change.
    2. We have increased the number of potential future section 7 
consultations for general permits issued by the ACOE by one to account 
for a consultation on Florida's shellfish aquaculture program. 
Additionally, we have changed the administrative costs of future 
consultations and acknowledged that project modification costs may be 
associated with the consultation.
    3. We have corrected the home range values for small juveniles 
identified by a peer reviewer.
    4. We clarified critical habitat boundaries by inserting additional 
roads and text to the location of the boundaries.

Critical Habitat Identification and Designation

    Critical habitat is defined by section 3 of the ESA as ``(i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the provisions of section 1533 
of this title, on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management

[[Page 45363]]

considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 1533 of this title, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species.'' This definition provides us with a step-
wise approach to identifying areas that may be designated as critical 
habitat for the endangered smalltooth sawfish.

Geographical Area Occupied by the Species

    The best available scientific and commercial data identify the 
geographical area occupied by the smalltooth sawfish at the time of 
listing (April 1, 2003) as peninsular Florida. Based on our 
regulations, we interpret ``geographical area occupied'' in the 
definition of critical habitat as the range of the species at the time 
of listing (45 FR 13011; February 27, 1980). The range was delineated 
at the time of listing from data provided by existing literature and 
encounter data. Because only a few contemporary encounters (one in 
Georgia, one in Alabama, one in Texas, and one in Louisiana) have been 
documented outside of Florida since 1998, we consider peninsular 
Florida to be the species' occupied range at the time of listing. At 
this time, we do not consider the limited observations outside of 
Florida as indicating that the species has re-established either its 
occupation of Gulf coast waters or its seasonal migrations up the east 
coast of the U.S. outside of Florida.

Specific Areas Containing Physical or Biological Features Essential to 
Conservation

    The definition of critical habitat further instructs us to identify 
the specific areas on which are found the physical or biological 
features essential to the species' conservation. Our regulations state 
that critical habitat will be defined by specific limits using 
reference points and lines on standard topographic maps of the area, 
and referencing each area by the State, county, or other local 
government unit in which it is located (50 CFR 424.12(c)).
    According to the definition of critical habitat, the physical and 
biological features essential to conservation must be identified 
(hereafter also referred to as ``essential features''). Section 3 of 
the ESA (16 U.S.C. 1532(3)) defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' to mean: ``to use, and the use of, 
all methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this chapter are no longer necessary.'' Our 
regulations at 50 CFR 424.12(b) provide guidance as to the types of 
habitat features that may be used to describe critical habitat.
    The recovery plan developed for the smalltooth sawfish represents 
the best judgment about the objectives and actions necessary for the 
species' recovery. We reviewed the recovery plan's habitat-based 
recovery objective for guidance on the habitat-related conservation 
requirements of the species. This objective identifies the need to 
protect and/or restore smalltooth sawfish habitats and discusses adult 
and juvenile habitats separately. Habitats, especially those that have 
been demonstrated to be important for juveniles, must be protected and, 
if necessary, restored. Protected, suitable habitat throughout the 
species' range will be necessary to support recruitment of young 
individuals to the recovering population. Without sufficient habitat, 
the population is unlikely to increase to a level associated with low 
extinction risk and delisting.
    The recovery plan also identifies specific recovery criteria that 
must be met to satisfy each objective. As stated in the plan, adult 
habitat-based recovery criteria for the species require the 
identification and protection of adult aggregation, mating, and/or 
pupping areas. Information on historic aggregation, mating, and/or 
pupping sites does not exist. Currently, no aggregation or mating areas 
have been identified for adults. Additionally, no information is 
available on specific pupping locations for gravid females. Tracking 
data on gravid females is lacking, but newborn juveniles still 
possessing their protective sheaths and newly pupped animals have been 
documented close to shore. Encounter and site fidelity data suggest 
juveniles are pupped in these areas, but this has not been validated. 
No known specific areas where adults perform any particular function, 
including feeding, are known. Adults are considered opportunistic 
feeders and forage on a variety of fish and crustacean species. Based 
on the available information on the habitat usage patterns of adults, 
we cannot identify physical or biological features essential to the 
species' conservation, or identify any areas on which such features may 
be found.
    In contrast to the paucity of information available on adult 
smalltooth sawfish, more detailed information on habitat usage patterns 
of juveniles is available, and more specific habitat-based recovery 
criteria are identified in the recovery plan. The habitat-based 
recovery criterion for juveniles identifies mangrove shorelines, non-
mangrove nursery habitats, and freshwater flow regimes as important 
features for juveniles. As stated earlier, the habitat-based recovery 
objective for the species focuses on protecting areas that have been 
identified as important for juveniles (i.e., nurseries). This objective 
also stresses the need to protect suitable habitats for juveniles to 
support their recruitment into the adult population. Juveniles are 
especially vulnerable to predation and starvation (Simpfendorfer and 
Wiley, 2005). Protection of the species' nurseries is crucial because 
the rebuilding of the population cannot occur without protecting the 
source (juvenile) population and its associated habitats. The recovery 
plan states that the recovery of the smalltooth sawfish depends on the 
availability and quality of nursery habitats and that protection of 
high-quality nursery habitats located in southwest Florida is essential 
to the species.
    We conclude that facilitating recruitment into the adult population 
by protecting the species' juvenile nursery areas is the key 
conservation objective for the species that will be supported by the 
designation of critical habitat.
    As stated in the recovery plan, smalltooth sawfish, like many 
sharks and rays, use specific habitats commonly referred to as 
nurseries or nursery areas. The recovery plan does not identify 
specific locations for nursery areas but does state that protecting 
nursery areas within southwest Florida is important to the recovery of 
the species. Nursery areas in addition to those in southwest Florida 
are also identified as important for recovery but locations of these 
additional areas were not specified. Thus, to identify specific areas 
that may meet the definition of critical habitat, we focused on 
specifically defining what constitutes a ``nursery'' area for 
smalltooth sawfish. We then identified those physical or biological 
features that are essential to the conservation of the species because 
they provide nursery area functions to the species in these areas.
    We evaluated information in the recovery plan, historical 
information on habitat use by sawfish, and available encounter data and 
scientific literature, as well as sought expert opinion, to determine 
where or what constitutes a ``nursery area'' for the species. 
Historical information on the species only provides limited, mostly 
anecdotal, information on the location of juvenile

[[Page 45364]]

animals and does not discuss specific habitat usage patterns for them. 
Historical information indicates that juveniles were found in the lower 
reaches of the St. Johns River, the Indian River Lagoon, southwest 
Florida, and in areas along the Gulf coast between Florida and Texas. 
Using historic location information alone would not provide a 
reasonable basis for identification of nursery areas, given the 
qualitative nature of the information. Further, because most of these 
areas have been so physically altered, conditions present historically 
may not be present today, and thus features that may have provided 
nursery area functions in the past may be absent.
    We then reviewed juvenile encounter data from the MML and FWRI 
databases to see whether the data alone indicates the existence of 
nursery areas. In summary, juvenile sawfish have been encountered in 
the Florida Panhandle, the Tampa Bay area, in Charlotte Harbor and the 
Caloosahatchee River, throughout the Everglades region and Florida Bay, 
the Florida Keys, and in scattered locations along the east coast of 
Florida south of the St. Johns River. However, apart from the Charlotte 
Harbor, Caloosahatchee River, and Ten Thousand Islands/Everglades (TTI/
E) areas, many of these encounters are represented by a single 
individual in a single year.
    Heupel et al. (2007) are critical of defining nursery areas for 
sharks and related species such as sawfish based solely on the presence 
of single occurrences of individual juvenile fish. Instead, these 
authors argue that nursery areas are areas of increased productivity 
which can be evidenced by natal homing or philopatry (use of habitats 
year after year) and that juveniles in such areas should show a high 
level of site fidelity (remain in the area for extended periods of 
time). Heupel et al. (2007) propose that shark nursery areas can be 
defined based on three primary criteria: (1) Juveniles are more common 
in the area than other areas, i.e., density in the area is greater than 
the mean density over all areas; (2) juveniles have a tendency to 
remain or return for extended periods (weeks or months), i.e., site 
fidelity is greater than the mean site fidelity for all areas; and (3) 
the area or habitat is repeatedly used across years whereas other areas 
are not. Scattered and infrequent occurrences of juveniles may indicate 
a lack of features that provide the necessary functions of a nursery 
area, and an area with only scattered or infrequent occurrences is not 
viewed by the authors as constituting a nursery area. Heupel et al. 
(2007) do not assume that that all sharks have nursery areas. The 
authors discuss that size-at-birth, rate of growth, time to maturity, 
litter size and frequency of breeding may be important factors 
dictating whether a shark species utilizes a nursery or not. Shark 
species with high growth rates, early maturity, and annual reproduction 
may not benefit as much from utilizing a nursery area. In contrast, the 
authors predict that species that have small size at birth and slow 
juvenile growth rates may be more likely to utilize nursery areas 
because they may be more susceptible to juvenile predation. We believe 
this paper provides the best framework for defining a ``nursery area'' 
for the smalltooth sawfish because they are small at birth, slow to 
mature, and existing data on tracked juveniles indicates their limited 
movements and ranges are directed toward avoiding predation by sharks 
foraging in deeper waters.
    Using the Heupel et al. (2007) framework, we evaluated available 
juvenile encounter data for patterns in juvenile density, site 
fidelity, and repeat usage over years. Encounter data indicate three 
types of distributions of individual juvenile sawfish. The first group 
consists of scattered or single encounters. Encounters occurring in 
areas north of Charlotte Harbor, including a few in the panhandle of 
Florida and along the east coast of Florida, are included in this 
group. Encounters in these areas were scattered individual encounters, 
and no indication of repeat or multiple use of an area was evident. The 
second group of encounters consists of encounters that had multiple 
individuals in an area, but these encounters were geographically 
scattered and not repeated over years. These encounters occurred in the 
Florida Keys. Encounters in this group were located on different sides 
of various Keys, and no consistent or continuous pattern of repeat 
usage over years could be identified. In fact, in 2008, juvenile 
encounters were largely lacking throughout much of the Keys. The third 
group of encounters exhibit repeat usage of the same location by both 
single and multiple individuals, notably higher density of encounters 
than the other groups, and usage occurring year after year. These 
encounters occurred in areas from Charlotte Harbor south through the 
Everglades and Florida Bay.
    Based on this analysis, the juvenile encounters in the third 
grouping discussed above, from Charlotte Harbor through the Everglades, 
are the only encounters that suggest these areas meet the nursery area 
criteria set forth by Heupel et al. (2007). Juvenile sawfish are more 
commonly encountered in these areas than in other areas, i.e., density 
in the area is greater than the mean density over all areas, and the 
area is repeatedly used across years, whereas other areas are not. 
Available information about site fidelity of juveniles is limited and 
does not allow quantitative comparisons among the apparent nursery 
areas and all other areas. However, as discussed above, available 
information indicates that small and very small juveniles show high 
fidelity to shallow nearshore areas where they have been acoustically 
tracked. Data from juveniles tracked in the TTI/E area indicate they 
exhibit site fidelity and residency patterns between 15 and 55 days 
(Wiley and Simpfendorfer, 2007). Tracking data also suggest that 
juveniles exhibit specific movement patterns to avoid predation. A 
juvenile tracked in the Everglades National Park (ENP) in the Shark 
River spent its time moving between a shallow mud bank during low tide 
and mangrove roots during high tide (Simpfendorfer, 2003). Tracking 
data in Mud Bay (ENP) and Faka Union Bay (TTI) indicate juveniles 
remain in very shallow waters (0.9 ft (0.3 m)) over several weeks. 
Tracking data in the Charlotte Harbor Estuary is limited to the 
Caloosahatchee River and its adjacent canals. Juvenile tracking data 
from a 60 in (153 cm) juvenile in this area indicates that the animal 
remained within water depths less than 3 ft (0.9 m) along a highly 
modified shoreline (Simpfendorfer, 2003). Tracking data indicate the 
animal spent the majority of its time within man-made canals and 
adjacent to docks and marinas within the river.
    Juvenile encounters outside of the area between Charlotte Harbor 
and the Everglades and Florida Bay do not fit the Heupel et al. 
framework and are not considered nursery areas at this time. Anecdotal 
information indicates that juvenile size animals have been encountered 
throughout portions of their historic range, and our recovery plan 
indicates that the establishment of nursery areas outside of southwest 
Florida is necessary for the species to recover. However, we cannot 
determine at this time the temporal or spatial distribution of future 
sawfish nursery areas. To more specifically delineate the boundaries of 
the nursery area or areas, we used Geographical Information System 
(GIS) software to map the density of all juvenile (length less than or 
equal to 200 cm) encounters (MML and FWRI) located along peninsular 
Florida within 500 m of land, documented between the years of 1998-

[[Page 45365]]

2008, with all years combined. Two density maps were generated to 
determine the mean density for all encounters and the density for all 
encounters excluding the research encounters. We used 1 km\2\ density 
grids (same grid size and locations used by Simpfendorfer (2006)) to 
determine density levels and distributions. Juvenile densities were 
very similar between the two maps. However, to remove any bias from the 
research efforts, we used the juvenile density map excluding research 
effort. The overall nursery area between Charlotte Harbor and Florida 
Bay breaks naturally into two areas between Ten Thousand Islands and 
the Caloosahatchee River, based on a long stretch of sandy beach 
habitat in the Naples area that is lacking encounters with densities 
greater than the mean density overall. Next we mapped juvenile 
encounters in these two areas by year (1998-2008), to verify where 
repeat usage occurred over years. This produced several groupings of 1 
km\2\ grids with higher mean juvenile densities compared to mean 
juvenile density throughout peninsular Florida: 1 grouping within 
Charlotte Harbor, 1 grouping encompassing the Caloosahatchee River, and 
3 groupings from the Ten Thousand Islands area through Florida Bay. We 
do not believe either the Charlotte Harbor Estuary or the TTI/E nursery 
areas should be subdivided into multiple smaller nursery areas for 
several reasons. First, the Heupel et al. (2007) framework does not 
indicate whether or how discrete nursery areas within a large area of 
juvenile use might be identified. Second, our knowledge about juvenile 
sawfish movements and ranges is very limited. Third, both areas consist 
of interconnected environmental systems and no environmental barriers 
exist to prohibit juvenile sawfish movement throughout the system. 
Finally, limiting nursery area boundaries to discrete habitat grids 
represented only by past encounters with juveniles would not best serve 
the conservation objective of facilitating population growth through 
juvenile recruitment. The specific boundaries of the two nursery areas 
were then derived by locating the nearest publicly identifiable 
boundary (e.g., boundaries of established parks or preserves) or 
structure external to the outermost boundary of the juvenile density 
grids where the mean density is greater than the density in the 
surrounding areas. We identified reference points and lines on standard 
topographic maps of the areas to describe the specific boundaries of 
the nursery areas. The Charlotte Harbor Estuary nursery area includes 
Charlotte Harbor, Gasparilla Sound, Pine Island Sound, Matlacha Pass, 
San Carlos Bay, Estero Bay, and the Caloosahatchee River in Charlotte 
and Lee Counties. The nursery area is bounded by the Peace River at the 
eastern extent of the mouth of Shell Creek and the northern extent of 
the Charlotte Harbor Preserve State Park. At the Myakka River the 
nursery area is bounded by the SR-776 Bridge, in Gasparilla Sound by 
the SR-771 Bridge. The COLREGS-72 lines between Gasparilla Island, 
Lacosta Island, North Captiva Island, Captiva Island, Sanibel Island, 
and the northern point of Estero Island are used as the coastal 
boundary for the nursery area. The southern extent of the area is the 
Estero Bay Aquatic Preserve, which is bounded on the south by the Lee/
Collier County line. Inland waters are bounded at SR-867 (McGregor 
Boulevard) from Punta Rassa Road to SR-80 near Fort Myers, then by SR-
80 (Palm Beach Boulevard) to Orange River Boulevard, then by Orange 
River Boulevard to Buckingham Road, then by Buckingham Road to SR-80, 
and then following SR-80 until it is due south of the Franklin Lock and 
Dam (S-79), which is the eastern boundary on the Caloosahatchee River 
and a structural barrier for sawfish access. Additional inland water 
boundaries north and west of the lock are bounded by North Franklin 
Lock Road to North River Road, then by North River Road to SR-31, then 
by SR-31 to SR-78 near Cape Coral, then by SR-78 to SR-765, then by SR-
765 to US-41, then by US-41 to US-17 (Marion Avenue) in Punta Gorda, 
then by US-17 to Riverside Drive, and then by Riverside Drive to the 
eastern extent of the Peace River. From the northern extent of the 
Charlotte Harbor Preserve State Park, inland waters are bounded 
westward along that extent to Harbor View Road, then by Harbor View 
Road to US-41, then by US-41 to SR-776, then by SR-776 to the Myakka 
River Bridge. The Charlotte Harbor nursery area is graphically 
displayed at the end of this document.
    The Ten Thousand Islands/Everglades (TTI/E) nursery area is located 
within Collier, Monroe, and Miami-Dade Counties, Florida. The 
Everglades nursery area includes coastal and inshore waters within 
Everglades National Park (ENP), including Florida Bay, in the vicinity 
of Everglades City, within the Cape Romano-Ten Thousand Islands Aquatic 
Preserve (AP), and within the portion of Rookery Bay AP south of SR-92. 
The boundaries match the portion of Rookery Bay AP south of SR-92, and 
the Cape Romano-Ten Thousand Islands AP. The nursery area boundaries 
closely match the ENP boundaries with the following two exceptions: (1) 
The nursery area boundary connects points 55 and 57 of the critical 
habitat map for the ENP/TTI Unit, which extend beyond the ENP boundary 
to include accessible nursery areas; and (2) The nursery area boundary 
is located inside the ENP boundary between points 77 and 2 illustrated 
on the critical habitat map, omitting the northeastern portion of the 
ENP. The area is omitted because it is not accessible to sawfish. The 
TTI/E nursery area is graphically displayed at the end of this 
document.
    Having identified the nursery areas, we next identified the 
physical or biological features found in these areas that are essential 
to the species' conservation because they provide nursery area 
functions to the sawfish.
    Simpfendorfer (2006) analyzed MML's smalltooth sawfish encounter 
data to determine the importance of habitat factors to juveniles less 
than 79 in (200 cm) in length. Depth data are consistently reported by 
fishers and are accurately reported because most fishers use depth 
finders, so depth data were extracted from the encounter database. 
Simpfendorfer examined the proximity of encounters to habitat features 
that could be evaluated from geographic information system (GIS) 
databases. These features were: mangroves (GIS mangrove coverages do 
not distinguish between mangrove species), seagrasses, freshwater 
sources, and the shoreline. Simpfendorfer (2006) used GIS shapefiles 
for the features to determine the shortest distance from the encounter 
to the feature. The encounter data were converted to encounter density 
by gridding the data, and the results of the analysis were then used in 
a habitat suitability model. The model indicates that water depths less 
than 3 ft, mangrove buffers or shorelines, and euryhaline habitat areas 
(areas with wider salinity ranges and receiving freshwater input) have 
the strongest correlation with juvenile smalltooth sawfish encounters. 
Additionally, most encounters were documented within a distance of 1641 
ft (500 m) from shore. The Simpfendorfer (2006) model suggests that 
areas of high suitability for juvenile sawfish contain all three of 
these features. Large areas coded as ``highly suitable'' habitat for 
juveniles are located in the areas we determined meet the Heupel et al. 
(2007) framework criteria for a nursery area, as applied to the 
sawfish.
    Based on the natural history of the species, its habitat needs and 
the key conservation objective of protecting

[[Page 45366]]

juvenile nursery areas, two physical and biological features are 
identified as essential to the conservation of the smalltooth sawfish 
because they provide nursery area functions. The two features are: red 
mangroves and shallow euryhaline habitats characterized by water depths 
between the Mean High Water line and 3 ft (0.9 m) measured at Mean 
Lower Low Water (MLLW). As discussed above, the prop root system and 
the location of red mangroves (close to shore), and shallow water 
depths provide refuge from predators. Red mangroves and shallow mud or 
sand bank euryhaline habitats are also highly productive and provide 
ample, diverse foraging resources. Among elasmobranchs, smalltooth 
sawfish are one of the few species known to inhabit euryhaline 
habitats, which may provide several benefits for the species. 
Euryhaline habitats are very productive environments that support an 
abundance and variety of prey resources that can only be accessed by 
species that inhabit their systems. Additionally, the risk of predation 
may be reduced in these euryhaline habitats because very few species of 
sharks (potential predators) are capable of inhabiting these habitats.
    Based on the best available information, we conclude red mangroves 
and adjacent shallow euryhaline habitats and the nursery area functions 
they provide facilitate recruitment of juveniles into the adult 
population. Thus, these features are essential to the conservation of 
the smalltooth sawfish. While some studies cite 1.0 meter as the 
preferred depth limit, others (Simpfendorfer 2006), cite 3.0 ft. For 
this rule, the water depth feature will be defined as 3 ft (0.9 m) 
because the NOAA Navigational Charts depth contour lines and most GIS 
databases use English units of measure.
    Based upon the best available information, we cannot conclude that 
any other sufficiently definable features of the environment in the two 
nursery areas, other than red mangroves and adjacent shallow euryhaline 
habitats, are essential to smalltooth sawfish conservation.
    Based on the boundaries of the two nursery areas and GIS data 
information on the location of the features, the Charlotte Harbor 
Estuary and the TTI/E nursery areas contain the features essential to 
the conservation of smalltooth sawfish because they facilitate 
recruitment into the adult population. In this rule, we designate these 
two specific areas, referred to as critical habitat ``units,'' as 
critical habitat for the smalltooth sawfish.
    There are areas outside of the two nursery areas, including areas 
on the east and west coasts of Florida that contain some of the same 
features identified as essential features in our two nursery areas. 
Habitat areas outside the specific nursery areas also meet 
Simpfendorfer's (2006) classification of highly suitable habitat for 
juveniles because they contain these features, notably areas in Tampa 
Bay and in the Indian River Lagoon. Because the features are essential 
to the conservation of the species based on the nursery functions they 
provide, we determined that these features are essential to the 
conservation of smalltooth sawfish only when present in nursery areas. 
None of these other areas meet the Heupel et al. (2007) definition of a 
nursery area. Encounters in these areas are rare and no pattern of 
repeat usage could be identified. Lack of repeat or high-density usage 
of these other areas by juveniles may be a function of the limited 
current size of a reproducing population that does not yet need 
additional nursery areas. Even so, we have no basis to conclude that 
other areas, even those containing shallow euryhaline habitats and 
mangroves, will be used as nursery areas in the future. Nursery areas 
cannot be located based solely on the co-location of shallow depths and 
euryhaline salinity regimes, and juveniles are not commonly or 
repeatedly found everywhere these features are present. Mangroves may 
also not be determinative of nursery area function for the sawfish; the 
Florida Keys contain mangrove resources, yet juvenile sawfish use of 
the Keys as evidenced by encounter data has been highly variable, 
including near absence in certain recent years. Additionally, historic 
anecdotal information on locations of small animals suggests they were 
found in the lower St. Johns River, which does not support mangroves. 
Based on the best available scientific information, we identified two 
specific areas for the species where red mangroves and adjacent shallow 
euryhaline habitats provide nursery functions and are therefore 
essential to the conservation of the species. We therefore designate 
the Charlotte Harbor Estuary and TTI/E Units.
    The boundaries of the two specific areas are the same as the 
Charlotte Harbor Estuary and TTI/E nursery area boundaries. GIS 
bathymetry data, mangrove coverage data, and salinity data were used to 
verify the distribution of the essential features within the nursery 
areas. We have identified reference points and lines on standard 
topographic maps of the areas to describe the specific boundaries of 
the two units in the regulatory text.
    The essential features can be found unevenly dispersed throughout 
the two areas. The limits of available information on the distribution 
of the features, and limits on mapping methodologies, make it 
infeasible to define the specific areas containing the essential 
features more finely than described herein. Existing man-made 
structures such as boat ramps, docks, pilings, maintained channels or 
marinas do not provide the essential features that are essential for 
the species' conservation. Areas not accessible (i.e., areas behind 
water control structures existing at the time of this final designation 
that prevent sawfish passage) to sawfish are not part of this 
designation. As discussed here and in the supporting impacts analysis, 
given the specificity of the essential features, determining whether an 
action may affect one or both of the features can be accomplished 
without entering into an ESA section 7 consultation.

Unoccupied Areas

    ESA section 3(5)(A)(ii) further defines critical habitat to include 
specific areas outside the geographical area occupied if the areas are 
determined by the Secretary to be essential for the conservation of the 
species. Regulations at 50 CFR 424.12(e) specify that we shall 
designate as critical habitat areas outside the geographical area 
presently occupied by a species only when a designation limited to its 
present range would be inadequate to ensure the conservation of the 
species. Habitat based recovery criteria in the smalltooth sawfish 
recovery plan suggest areas outside the current occupied range may be 
important to the species' recovery. However, based on the best 
available information we cannot identify unoccupied areas that are 
currently essential to the conservation of the species. If information 
on essential features or essential areas in the species' unoccupied 
range becomes available, we will consider revising this critical 
habitat designation.

Special Management Considerations or Protection

    Specific areas within the geographical area occupied by a species 
may be designated as critical habitat only if they contain physical or 
biological features essential to the conservation of the species that 
``may require special management considerations or protection.'' A few 
courts have interpreted aspects of this statutory requirement, and the 
plain language

[[Page 45367]]

aids in its interpretation. For instance, the language clearly 
indicates the features, not the specific area containing the features, 
are the focus of the ``may require'' provision. Use of the disjunctive 
``or'' also suggests the need to give distinct meaning to the terms 
``special management considerations'' and ``protection.'' Generally 
speaking, ``protection'' suggests actions to address a negative impact 
or threat of a negative impact. ``Management'' seems plainly broader 
than protection, and could include active manipulation of a feature or 
aspects of the environment. Two Federal district courts, focusing on 
the term ``may,'' ruled that features can meet this provision based on 
either present requirements for special management considerations or 
protections, or on possible future requirements. See Center for Biol. 
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003); Cape 
Hatteras Access Preservation Alliance v. Dep't of the Interior, 344 F. 
Supp. 108 (D.D.C. 2004). The Arizona district court ruled that the 
provision cannot be interpreted to mean that features already covered 
by an existing management plan must be determined to require 
``additional'' special management, because the term ``additional'' is 
not in the statute. Rather, the court ruled that the existence of 
management plans may be evidence that the features in fact require 
special management. Center for Biol. Diversity v. Norton, at 1096-1100. 
NMFS' regulations define ``special management considerations or 
protections'' to mean ``any methods or procedures useful in protecting 
physical and biological features of the environment for the 
conservation of listed species'' (50 CFR 424.02(j)).
    Based on the above, we evaluated whether the essential features in 
the two sawfish nursery areas may require special management 
considerations or protections by evaluating four criteria:
    a. Whether there is presently a need to manage the feature;
    b. Whether there is the possibility of a need to manage the 
feature;
    c. Whether there is presently a negative impact on the feature; or
    d. Whether there is the possibility of a negative impact on the 
feature.
    In evaluating present or possible future management needs for the 
features, we recognized that the features in their present condition 
must be the basis for a finding that these are essential to the 
smalltooth sawfish's conservation. In addition, the needs for 
management evaluated in (a) and (b) were limited to managing the 
features for the conservation of the species. In evaluating whether the 
essential features meet either criterion (c) or (d), we evaluated 
direct and indirect negative impacts from any source (e.g., human or 
natural). However, we only considered the criteria to be met if impacts 
affect or have the potential to affect the aspect of the feature that 
makes it essential to the conservation of the species. We also 
evaluated whether the features met the ``may require'' provision 
separately for the two ``specific areas'' proposed for designation.
    Red mangroves and adjacent shallow euryhaline habitats are both 
susceptible to impacts from human activities because they are located 
in areas where urbanization occurs. The smalltooth sawfish status 
review (NMFS 2000) states that habitat destruction is one of the key 
factors affecting the present distribution of the species. The 
continued urbanization of the southeastern U.S. has resulted in 
substantial habitat losses for the species. Coastal areas including the 
two nursery areas are subject to various impacts from activities 
including, but not limited to, dredging and disposal activities, 
coastal maritime construction, land development and associated runoff, 
alteration of natural freshwater discharges to coastal habitats, and 
installation of various submerged pipelines. The impact from these 
activities combined with natural factors (e.g., major storm events) can 
significantly affect the quality and quantity of the two features 
listed above and their ability to provide nursery area functions (i.e., 
refuge from predators and abundant food resources), to juvenile 
smalltooth sawfish to facilitate recruitment into the population. 
Dredging projects modify water depths to accommodate navigation needs, 
mangroves are removed to construct docks and various maritime 
structures, and water control structures are installed to modify water 
flows in various areas, which can alter salinity regimes downstream. 
Based on our past section 7 consultation database records we know that 
coastal areas in southwest Florida will continue to experience impacts 
from coastal construction projects and that the essential features will 
continue to experience negative impacts in the future. Based on our 
past consultation history, fewer Federal actions may affect habitats in 
the TTI/E Unit than in the Charlotte Harbor Estuary Unit, because much 
of the TTI/E Unit is held in public ownership by the Department of the 
Interior. However, coastal storm impacts to mangroves, salinity, and 
water depth still occur within this area, and salinity regimes as well 
as mangroves in this area may be altered in the future by projects 
implemented under the Comprehensive Everglades Restoration Project. 
Thus, the two essential features currently needed and will continue to 
require special management and protection in both of the two specific 
areas.

Activities That May Be Affected by the Designation

    Section 4(b)(8) of the ESA requires that we describe briefly and 
evaluate, in any proposed or final regulation to designate critical 
habitat, those activities that may destroy or adversely modify such 
habitat or that may be affected by such designation. A variety of 
activities may affect critical habitat that, when carried out, funded, 
or authorized by a Federal agency, will require an ESA section 7 
consultation. Such activities include, but are not limited to, dredging 
and filling, other in-water construction (docks, marinas, boat ramps, 
etc.), installation of water control structures, and hard clam 
aquaculture activities. Notably, all the activities identified that may 
affect the critical habitat may also affect the species itself, if 
present within the action area of a proposed Federal action.
    We believe this final critical habitat designation will provide 
Federal agencies, private entities, and the public with clear 
notification of the nature of critical habitat for smalltooth sawfish 
and the boundaries of the habitat. This designation will allow Federal 
agencies and others to evaluate the potential effects of their 
activities on critical habitat to determine if ESA section 7 
consultations with NMFS are needed, given the specific definition of 
the two essential features. Consistent with recent agency guidance on 
conducting adverse modification analyses (NMFS, 2005), we will apply 
the statutory provisions of the ESA, including those in section 3 that 
define ``critical habitat'' and ``conservation,'' to determine whether 
a proposed future action might result in the destruction or adverse 
modification of critical habitat.

Application of ESA Section 4(a)(3)(B)(i)

    Section 4(a)(3)(B) prohibits designating as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DOD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP), if we determine 
that such a plan provides a benefit to the sawfish species (16 U.S.C. 
1533(a)(3)(B)). We solicited information from DOD and received 
responses indicating that no DOD facilities or managed areas are 
located

[[Page 45368]]

within the specific areas identified as critical habitat.

Application of ESA Section 4(b)(2)

    The foregoing discussion described the specific areas within U.S. 
jurisdiction that fall within the ESA section 3(5) definition of 
critical habitat because they contain the physical and biological 
features essential to the sawfish's conservation that may require 
special management considerations or protection. Before including areas 
in a designation, section 4(b)(2) of the ESA requires us to consider 
the economic, national security, and any other relevant impacts of 
designation of any particular area. Additionally, we have the 
discretion to exclude any area from designation if we determine the 
benefits of exclusion (that is, avoiding some or all of the impacts 
that would result from designation) outweigh the benefits of 
designation based upon the best scientific and commercial data 
available. We may not exclude an area from designation if exclusion 
will result in the extinction of the species. Because the authority to 
exclude is discretionary, exclusion is not required for any particular 
area under any circumstances.
    The analysis of impacts below summarizes the comprehensive analysis 
contained in our Final 4(b)(2) Report (NMFS, 2009), considering the 
economic, national security, and other relevant impacts that we 
projected would result from including the two units in the critical 
habitat designation. This consideration informed our decision on 
whether to exercise our discretion to exclude particular areas from the 
designation. Both positive and negative impacts were identified and 
considered (these terms are used interchangeably with benefits and 
costs, respectively). Impacts were evaluated in quantitative terms 
where feasible, but qualitative appraisals were used where that was 
more appropriate to particular impacts.
    The ESA does not define what ``particular areas'' means in the 
context of section 4(b)(2), or the relationship of particular areas to 
``specific areas'' that meet the statute's definition of critical 
habitat. As there was no biological basis to subdivide the two specific 
critical habitat units into smaller units, we treated these units as 
the ``particular areas'' for our initial consideration of impacts of 
designation.

Impacts of Designation

    The primary impacts of a critical habitat designation result from 
the ESA section 7(a)(2) requirement that Federal agencies ensure their 
actions are not likely to result in the destruction or adverse 
modification of critical habitat. Determining these impacts is 
complicated by the fact that section 7(a)(2) also requires that Federal 
agencies ensure their actions are not likely to jeopardize the species' 
continued existence. An incremental impact of designation is the extent 
to which Federal agencies modify their proposed actions to ensure they 
are not likely to destroy or adversely modify the critical habitat 
beyond any modifications they would make because of listing and the 
jeopardy prohibition. When a modification would be required due to 
impacts to both the species and critical habitat, the impact of the 
designation may be co-extensive with the ESA listing of the species. 
Our Draft 4(b)(2) Report projected administrative and project 
modification costs that would be incremental impacts of the 
designation, based on our consultation history for the species and on 
the assumption that formal consultations would not be required to avoid 
adverse effects to the species itself. Past consultations on projects 
in the range of the species have all concluded the species was not 
likely to be adversely affected, due to the mobility and perceived lack 
of specific habitat use by the species. However, recent section 7 
consultations have determined that it may not be appropriate to 
conclude that juvenile sawfish forced to vacate nursery habitat due to 
project activities will not be harmed by these effects, given 
juveniles' specific habitat requirements and high site fidelity. In 
some recent consultations, limitations on removal of red mangroves and 
shallow habitat areas were implemented to avoid take of juvenile 
sawfish using project areas. Because such projects are directly 
impacting features that have been identified as critical habitat and 
may be indirectly affecting the listed species, it is possible that 
critical habitat considerations will be the more important factor in 
shaping future consultations. Thus, in the Final 4(b)(2) Report, we 
have retained the conservative assumption that the identified costs and 
benefits will be incremental impacts of the critical habitat 
designation.
    The Final 4(b)(2) Report begins with a description of the projected 
future Federal activities that would trigger section 7 consultation 
requirements because they may affect one or both of the essential 
features. Additionally, the report describes the project modifications 
we identified that may reduce impacts to the essential features. 
Positive impacts that may arise from avoiding destruction or adverse 
modification of the species' habitat, and education of the public to 
the importance of an area for species conservation, are also described. 
The report discusses the lack of expected impacts on national security 
and other relevant impacts. This report is available on NMFS' Southeast 
Region Web site at http://sero.nmfs.noaa.gov/pr/SmalltoothSawfish.htm.

Economic Impacts

    As discussed above, economic impacts of the critical habitat 
designation result through implementation of section 7 of the ESA in 
consultations with Federal agencies to ensure their proposed actions 
are not likely to destroy or adversely modify critical habitat. These 
economic impacts may include both administrative and project 
modification costs; economic impacts that may be associated with the 
conservation benefits of the designation are characterized as other 
relevant impacts and described later.
    Because the smalltooth sawfish has been listed for 5 years, a 
consultation history exists for the species that allowed formulating 
predictions about the types of future Federal activities that might 
require section 7 consultation in the next 10 years (the typical time 
period for section 4(b)(2) reports). We examined our consultation 
records compiled in our Public Consultation Tracking System (PCTS) 
database, to identify types of Federal activities that have the 
potential to adversely affect either both the smalltooth sawfish and 
its critical habitat, or just the critical habitat (actions that 
require consultation due to effects solely on the fish are not impacts 
of the designation of critical habitat). The PCTS database contains 
information dating from 1997, providing a consultation history for 
sawfish and co-located listed species spanning 10 years. Consultation 
data for smalltooth sawfish began when the species was listed in 2003, 
and available information indicates that the number of consultations 
increased over time as Federal agencies recognized those projects that 
might affect the species and thus require consultation. Based on our 
outreach efforts to Federal agencies about the need to consult on the 
species, we believe that our data from 2005 to the present represents 
the level of future actions that may trigger consultation in the two 
areas designated as critical habitat from which to estimate the number 
of future actions that may trigger consultation. Thus we extrapolated 
the number of consultations that occurred over a three-year period 
between 2005 and the

[[Page 45369]]

present that required consultation due to the presence of the sawfish 
into the number of future consultations. We also considered information 
provided by Federal action agencies on future consultations.
    We identified four categories of activities that would require 
consultation due to potential impacts to one or both of the essential 
features: marine construction activities that require a Federal permit 
(e.g., docks, piers, boat ramps, dredging, shoreline stabilization, 
etc.); general permits (including shellfish aquaculture activities) 
authorizing specified categories and locations of construction 
activities without the need for individual project-specific permits; 
water control structure repair and replacement; and road/bridge 
expansions, repairs and removals. No categories of future Federal 
actions are expected to require consultation due solely to impacts on 
one or both of the critical habitat features; all categories of 
projected future actions may trigger consultation because they have the 
potential to adversely affect the essential features and the species 
itself. Therefore, we do not predict this designation will result in an 
increase in the number of consultations that would be required due 
solely to the presence of the species in the two specific units. 
Moreover, fewer than half of the past projects that required 
consultation due to effects on sawfish had actual impacts on one or 
both of the features determined as critical habitat. A total of 77 
consultations in the Charlotte Harbor Estuary Unit and a total of 8 
consultations in the TTI/E Unit are predicted over the next ten years 
due to the designation. The ACOE is projected to be the Federal action 
agency for the majority of future projects requiring consultation due 
to adverse effects to critical habitat in both units; the U.S. Coast 
Guard and/or the Federal Highways Administration may be co-action 
agencies that may also be involved in three consultations in the 
Charlotte Harbor Estuary Unit over the next ten years. Although the 
TTI/E unit largely overlaps the Everglades National Park, due to 
limitations on habitat-altering activities in the park, we project only 
one consultation will be required with the Department of Interior (DOI) 
over the next 10 years as a result of this designation.
    As explained above, to be conservative and avoid underestimating 
impacts of the designation, we assumed that although all future 
projects will trigger consultation due to both the species and the 
critical habitat, the consultations will be formal and require a 
biological opinion based on potential adverse impacts on one or both of 
the essential features of the critical habitat. Thus, we have estimated 
the maximum potential incremental administrative costs of each 
consultation that will result from the designation, as the difference 
in average costs of an informal and formal consultation. We have 
estimated the total costs for each unit as a range, reflecting the 
possible range in complexity and cost of consultations. The maximum 
potential incremental administrative costs for the Charlotte Harbor 
Estuary Unit are estimated to range from $1,039,500 to $1,386,000 
(depending on complexity) over the 10-year planning period. The maximum 
potential incremental administrative costs for the TTI/E Unit are 
estimated to range from $108,000 to $144,000 (depending on complexity) 
over the 10-year planning period.
    We next considered the range of modifications we may recommend to 
avoid adverse modification from projected future activities in the 
smalltooth sawfish critical habitat. We assumed in our analysis that 
the costs of project modifications to avoid destroying or adversely 
modifying critical habitat would not be costs that are co-extensive 
with the listing of the species. Although recently completed 
consultations indicate that project modifications may be required in 
the future to avoid take of juvenile sawfish using their nursery areas, 
as discussed above, it is conceivable that critical habitat 
considerations will be the more important factor shaping the outcome of 
future consultations and selection of project modifications. Similarly, 
we assumed that the costs of project modifications required to avoid 
destruction or adverse modification of critical habitat will not be 
costs that are co-extensive with another existing regulatory 
requirement. Though there are numerous existing Federal, State, or 
local laws and regulations that protect natural resources including the 
essential features to some degree, none of these laws focuses on 
avoiding the destruction or adverse modification of these features, 
which provide sawfish nursery area functions, thus facilitating sawfish 
recovery. As a result, we believe the designation will provide unique, 
additional protections to the critical habitat features that would 
result in project modifications where existing laws would not require 
such modifications.
    We identified eight potential project modifications that we may 
recommend during section 7 consultation to avoid or reduce impacts to 
the essential features. To be conservative in estimating impacts, we 
assumed that project modifications would be recommended to address 
adverse effects from all projected future agency actions requiring 
consultation. Although we made the assumption that all potential 
project modifications would be recommended by NMFS, not all of the 
modifications identified for a specific category of activity would be 
necessary for an individual project, but we are not able to identify 
the exact modification or combinations of modifications that would be 
required for all future actions. Conversely, more than one project 
modification may be required for individual future projects where both 
essential features may be adversely affected by a project, and multiple 
project modifications are required to avoid such impacts.
    Table 1 provides a summary of the estimated costs, where possible, 
of individual project modifications. The Final 4(b)(2) Report provides 
a detailed description of each project modification, actions for which 
it may be recommended, and whether it may be useful in avoiding adverse 
impacts to one or both of the essential features.

                          Table 1--Summary of Types of Potential Project Modifications
----------------------------------------------------------------------------------------------------------------
      Project modification               Cost                Unit                Range          Approx. totals
----------------------------------------------------------------------------------------------------------------
Project Relocation..............  Undeterminable....  N/A...............  N/A...............  N/A.
Horizontal Directional Drilling   $1.39-2.44 million  per mile..........  0.2-31.5 Miles....  $278,000-$76,900,0
 (HDD).                                                                                        00.
Restriction of Utility/Road       Roadway Retained    Linear Foot.......  N/A...............  $1,875-$5,050 per
 Corridor Widths.                  Sides, 2 Lane =                                             linear foot.
                                   $1,875.
                                  Roadway Retained
                                   Sides, 4 Lane =
                                   $2,150.

[[Page 45370]]

 
                                  Roadway Bridge, 2
                                   Lane = $3,370.
                                  Roadway Bridge, 4
                                   Lane = $5,050.
Alternative Shoreline             Undeterminable....  N/A...............  N/A...............  N/A.
 Stabilization Methods.
Limitations on Dock Widths and    Undeterminable....  Sq. Foot..........  N/A...............  N/A.
 Sizes.
Limitations/Restrictions on       Undeterminable....  N/A...............  N/A...............  N/A.
 Modifying Freshwater Flow.
Sediment and Turbidity Controls.  Staked Silt Fence   Linear Foot.......  N/A...............  $2-$12 per linear
                                   = $2.                                                       foot.
                                  Floating Turbidity
                                   Barrier = $12.
Conditions Monitoring...........  Undeterminable....  N/A...............  N/A...............  N/A.
----------------------------------------------------------------------------------------------------------------
Note: Where information was available, the estimated ranges (extents) of the impacts are included.

National Security Impacts

    Previous critical habitat designations have recognized that impacts 
to national security may result if a designation would trigger future 
ESA section 7 consultations because a proposed military activity ``may 
affect'' the physical or biological feature(s) essential to the listed 
species' conservation. Anticipated interference with mission-essential 
training or testing or unit readiness, either through delays caused by 
the consultation process or through requirements to modify the action 
to prevent adverse modification of critical habitat, has been 
identified as a negative impact of critical habitat designations (see, 
e.g., Proposed Designation of Critical Habitat for the Pacific Coast 
Population of the Western Snowy Plover, 71 FR 34571, 34583 (June 15, 
2006); and Proposed Designation of Critical Habitat for Southern 
Resident Killer Whales; 69 FR 75608, 75633 (December 17, 2004)).
    These past designations have also recognized that national security 
impacts do not result from a critical habitat designation if future ESA 
section 7 consultations would be required for a jeopardy analysis even 
if no critical habitat was designated, in which case the critical 
habitat designation would not add new burdens beyond those related to 
the jeopardy consultation.
    On April 11, 2008, we sent a letter to DOD requesting information 
on national security impacts of the proposed designation. We received 
responses from the Departments of the Army, Navy, and Air Force 
indicating that they have no facilities or managed areas located within 
the proposed critical habitat areas. Thus, consultations with respect 
to activities on DOD facilities or training are unlikely to be 
triggered as a result of the final critical habitat designation, and no 
national security impacts are anticipated as a result of this critical 
habitat rule.

Other Relevant Impacts

    Past critical habitat designations have identified three broad 
categories of other relevant impacts: educational awareness benefits, 
conservation benefits, both to the species and to society as a result 
of the avoidance of destruction or adverse modification of critical 
habitat, and impacts on governmental or private entities that implement 
existing management plans in the areas covered by the designation. Our 
Final 4(b)(2) Report discusses these impacts of designating the 
specific areas as critical habitat for smalltooth sawfish.
    As summarized in the Final 4(b)(2) Report, there are potential 
educational benefits resulting from the designation. Particularly in 
Florida, the designation may expand the awareness raised by the listing 
of the smalltooth sawfish. Mangrove shoreline areas are often used for 
recreational activities such as kayaking, and provide habitat for 
viewable wildlife. Additionally, Federal and State protected areas, 
such as Everglades National Park, Rookery Bay National Estuarine 
Preserve, Cape Romano-Ten Thousand Islands Aquatic Preserve, and 
Collier-Seminole State Park may benefit from the added awareness of the 
endangered smalltooth sawfish within their boundaries, and from the 
protection critical habitat designation affords.
    Implementation of ESA Section 7 to avoid destruction or adverse 
modification of critical habitat is expected to increase the 
probability of recovery for listed species. In addition to contributing 
to sawfish recovery, benefits associated with project modifications 
required through section 7 consultation to minimize or avoid the 
destruction or adverse modification of the essential features, would 
include minimizing or avoiding loss of the ecosystem services that 
these features provide. By definition, the physical and biological 
features are ``essential to the conservation'' of the smalltooth 
sawfish; in other words, conservation of the species as defined in the 
ESA is not possible without the presence and protection of the 
features. As discussed above, we have determined that the two areas 
included in the critical habitat designation are juvenile nursery 
areas. The essential features of these areas, red mangroves with their 
prop root systems, and adjacent shallow euryhaline habitats, provide 
protection from predators and abundant and diverse prey resources, and 
thus provide key nursery area functions for the sawfish.
    Because the smalltooth sawfish has limited commercial and 
recreational value, and because the species' recovery is expected to 
take decades, we can predict no direct or indirect monetary value that 
may result from the designation because of its contribution to the 
recovery of the smalltooth sawfish. However, as discussed in the 
following paragraphs, other benefits are expected to accrue to society 
in the course of protecting the essential features of the sawfish's 
critical habitat from destruction or adverse modification.
    Mangrove ecosystems provide a range of important uses and services 
to society. As these benefits currently exist, we do not interpret them 
as resulting from the critical habitat designation per se. However, 
protection of the critical habitat from destruction or adverse 
modification may at a minimum prevent loss of the benefits provided by 
these resources, and would contribute to any benefits associated with 
increased future abundance of the smalltooth sawfish as it recovers. As 
we discuss in the Final 4(b)(2) Report, we believe that the critical 
habitat designation will provide unique, additional protections to 
mangroves in

[[Page 45371]]

the areas covered by the designation, relative to existing laws and 
regulations.
    The additional protection of mangroves offered through the critical 
habitat designation ensures that mangroves in the areas covered by the 
final designation can continue to function as critical components of 
the ecosystem. The Final 4(b)(2) Report discusses benefits of mangroves 
including benefits to biodiversity, benefits to fisheries, benefits to 
air and water quality protection, shoreline protection, and benefits to 
recreation and tourism. Most of these benefits are described in non-
monetary metrics. Where economic values are presented, we note that 
they are derived from a variety of sources and studies and are provided 
for context in support of our conclusion that non-negligible economic 
benefits are expected to result from the designation, because 
protection of the critical habitat from destruction or adverse 
modification is expected at minimum to prevent loss of existing 
benefits the habitat provides.
    While the shallow water euryhaline habitat feature offers important 
ecosystem services to various juvenile fish, invertebrates, and benthic 
and epibenthic organisms as described in the Final 4(b)(2) Report, 
their conservation benefits are interrelated with the benefits offered 
by conservation of red mangroves. Consequently, the Final 4(b)(2) 
Report focuses on the benefits of mangroves, and the interrelated 
benefits of the shallow water euryhaline habitat are not discussed in 
detail.
    Very little impact on entities responsible for natural resource 
management or conservation plans that benefit listed species, or on the 
functioning of those plans, is predicted to result from the critical 
habitat designation in the areas covered by the plans. Though the TTI/E 
unit largely overlaps with the Everglades National Park, our 
discussions with park managers identify only one park management 
project that will require consultation during the next 10 years.

Synthesis of Impacts Within the Specific Areas

    For the reasons set forth below, based on our consideration of 
positive and negative economic, national security and other relevant 
impacts predicted to result from the designation, we do not exercise 
our discretion to exclude all or any part of either the Charlotte 
Harbor Estuary Unit or the Ten Thousand Islands/Everglades Unit from 
the designation. No impacts on national security are projected to 
result from the designation. Very little negative impact on existing 
resource management activities is projected to result from the 
designation. Negative economic impacts resulting from section 7 
consultation requirements are projected to be limited. A total of 85 
Federal actions over the next ten years are projected to require 
section 7 consultation to address predicted adverse effects to one or 
both of the physical or biological features of designated critical 
habitat. Seventy-seven of these actions are projected for the Charlotte 
Harbor Estuary Unit, or approximately eight per year on average. Only 
eight future consultations are projected to be required in the TTI/E 
Unit over the next ten years due to impacts on the critical habitat 
features, or approximately one per year on average. All of these 
projects would have required consultation due to the listing of the 
sawfish, even in the absence of the designation. We have projected that 
incremental section 7 costs will be associated with the designation, in 
the form of increased administrative costs of more complex, formal 
consultations, and in project modification costs. Estimated costs for 
these project modifications are provided in the Final 4(b)(2) Report, 
though we could not predict the total cost of modifications resulting 
from the designation given the lack of information on project design 
and locations. However, we may have overestimated impacts in our 
assumption that all modification costs will be necessary and will be 
incremental impacts of the designation rather than baseline impacts of 
existing State, local or other Federal laws or regulations that protect 
natural resources or co-extensive impacts of the listing of the 
sawfish. We do not project that any required project modifications will 
have secondary impacts on local or regional economies. The majority of 
project modifications are projected to be recommended to avoid adverse 
effects to the red mangroves in the critical habitat areas. We expect 
that the designation will provide unique, additional protections to 
mangroves because existing laws and regulations in these areas do not 
avoid the destruction or adverse modification of mangroves for the 
purpose of facilitating recovery of the sawfish. The final designation 
is expected to, at minimum, prevent the loss of societal benefits that 
mangroves and shallow euryhaline habitats currently provide in the two 
specific areas included in the proposal.

Critical Habitat Designation

    We are designating approximately 840,472 acres in two units of 
critical habitat occupied by the U.S. DPS of smalltooth sawfish at the 
time of its listing. The two units determined for critical habitat 
designations are: the Charlotte Harbor Estuary Unit, which comprises 
approximately 221,459 acres of habitat; and the Ten Thousand Islands/
Everglades Unit (TTI/E), which comprises approximately 619,013 acres of 
habitat. The two units are located along the southwestern coast of 
Florida between Charlotte Harbor and Florida Bay.
    These specific areas contain the following physical and biological 
features that are essential to the conservation of this species and 
that may require special management considerations or protection: red 
mangroves and shallow euryhaline habitats characterized by water depths 
between the MHW line and 3 ft (0.9 m) measured at Mean Lower Low Water 
(MLLW). No unoccupied areas are included in the final designation of 
critical habitat.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Pub. L. 106-554), is intended to enhance the quality and 
credibility of the Federal government's scientific information, and 
applies to influential or highly influential scientific information 
disseminated on or after June 16, 2005.
    To satisfy our requirements under the OMB Bulletin, we obtained 
independent peer review of the scientific information included in the 
proposed critical habitat designation, including the Draft 4(b)(2) 
Report and incorporated the peer review comments prior to dissemination 
of the proposed rulemaking. The peer review comments and our responses 
are summarized above.

Classification

    The State of Florida determined this action is consistent to the 
maximum extent practicable with the enforceable policies of the 
approved coastal management programs of Florida. This determination is 
required under section 307 of the Coastal Zone Management Act.
    This final rule has been determined to be significant under 
Executive Order (E.O.) 12866. We have integrated the regulatory 
principles of the E.O. into the development of this rule to the extent 
consistent with the mandatory duty to

[[Page 45372]]

designate critical habitat, as defined in the ESA.
    We prepared a final regulatory flexibility analysis (FRFA) pursuant 
to section 603 of the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), which describes the economic impact this rule may have on small 
entities.
    This rule may affect small businesses, small nonprofit 
organizations, and small governmental jurisdictions that engage in 
activities that would affect the essential features identified in this 
designation, if they receive funding or authorization for such activity 
from a Federal agency. Such activities would trigger ESA section 7 
consultation requirements, and potential modifications to proposed 
activities may be required to avoid destroying or adversely modifying 
the critical habitat. The consultation record from which we have 
projected likely actions occurring over the next ten years indicates 
that applicants for Federal permits or funds may include small 
entities. For example, marine contractors may require ACOE permits for 
dock construction; some of these contractors may be small entities. 
According to the Small Business Administration, businesses in the Heavy 
and Civil Engineering Construction subsector (NAICS Code 237990), which 
includes firms involved in marine construction projects such as 
breakwater, dock, pier, jetty, seawall and harbor construction, must 
have average annual receipts of no more than $31 million to qualify as 
a small business (dredging contractors that perform at least 40% of the 
volume dredged with their own equipment, or equipment owned by another 
small concern are considered small businesses if their average annual 
receipts are less than or equal to $18.5 million). Our consultation 
database does not track the identity of past permit recipients or 
whether the recipients were small entities, so we have no basis to 
determine the percentage of grantees or permittees that may be small 
businesses in the future.
    Small businesses in the tourist and commercial fishing industries 
may benefit from the rule because avoiding the destruction or adverse 
modification of the critical habitat features, particularly mangroves, 
is expected to at minimum prevent loss of current direct and indirect 
use of, and values derived from, these habitats within the areas 
included in the designation.
    A review of historical ESA section 7 consultations involving 
projects in the areas designated are described in Section 3.2.2 of the 
Final 4(b)(2) Report prepared for this rulemaking. We projected that, 
on average, about eight Federal projects with non-Federal grantees or 
permittees will be affected by implementation of the critical habitat 
designation, annually, across both areas included in the critical 
habitat designation. Some of these grantees or permittees could be 
small entities, or could hire small entities to assist in project 
implementation. Historically, these projects have involved dock/pier 
construction and repair, water control structure installation or 
repair, bridge repair and construction, dredging, cable installation, 
and shoreline stabilization. Potential project modifications we have 
identified that may be required to prevent these types of projects from 
adversely modifying critical habitat include: project relocation; 
environmental conditions monitoring; horizontal directional drilling; 
road/utility corridor restrictions; alternative shoreline stabilization 
methods; dock size and width limits; restrictions on structures that 
modify freshwater flows; and sediment and turbidity control measures. 
See Table 15 of the Final 4(b)(2) Report.
    Even though we cannot determine relative numbers of small and large 
entities that may be affected by this rule, there is no indication that 
affected project applicants would be limited to, nor disproportionately 
comprised of, small entities.
    It is unclear whether small entities would be placed at a 
competitive disadvantage compared to large entities. However, as 
described in the Final 4(b)(2) Report, consultations and project 
modifications will be required based on the type of permitted action 
and its associated impacts on the essential critical habitat feature. 
Because the costs of many potential project modifications that may be 
required to avoid adverse modification of critical habitat are unit 
costs such that total project modification costs would be proportional 
to the size of the project, it is not unreasonable to assume that 
larger entities would be involved in implementing the larger projects 
with proportionally larger project modification costs.
    It is also unclear whether the rule will significantly reduce 
profits or revenue for small businesses. As discussed throughout the 
Final 4(b)(2) Report, we made assumptions that all future consultations 
will be formal, that all will require project modifications, and that 
all costs of project modifications will be incremental impacts of the 
designation and not a requirement of other existing regulatory 
requirements including ESA requirements for protection of the sawfish 
itself. These assumptions likely overestimate the impacts of the 
designation. In addition, as stated above, though it is not possible to 
determine the exact cost of any given project modification resulting 
from consultation, the smaller projects most likely to be undertaken by 
small entities would likely result in relatively small modification 
costs.
    There are no record-keeping requirements associated with the rule. 
Similarly, there are no reporting requirements other than those that 
might be associated with reporting on the progress and success of 
implementing project modifications. However, third party applicants or 
permittees would be expected to incur incremental costs associated with 
participating in the administrative process of consultation along with 
the permitting Federal agency, beyond the baseline administrative costs 
that would be required for consultations based on the sawfish itself. 
Estimates of the cost to third parties from consultations were 
developed from the estimated Section 7 costs identified in the Economic 
Analysis of Critical Habitat Designation for the Gulf Sturgeon (IEc 
2003) inflated to 2009 (March) dollars. The maximum potential 
incremental third party cost for each consultation would be the 
difference between the cost of an informal consultation required solely 
for the presence of the sawfish and a formal consultation required to 
avoid destroying or adversely modifying the critical habitat ($2,000 
difference per low complexity consultation and $1,600 difference per 
high complexity consultation). The total impact on third party costs 
would be the incremental cost of the formal consultation multiplied by 
the increased number of formal consultations. The maximum incremental 
third party costs for both Units are estimated to range from $136,200 
to $170,000 (depending on complexity) over the 10-year planning period.
    No Federal laws or regulations duplicate or conflict with the final 
rule. Existing Federal laws and regulations overlap with the final rule 
only to the extent that they provide protection to natural resources 
including mangroves generally. However, no existing laws or regulations 
specifically prohibit destruction or adverse modification of critical 
habitat for, and focus on the recovery of, the smalltooth sawfish.
    The alternatives to the designation considered consisted of three 
alternatives: no-action, our preferred alternative, and an alternative 
with varying numbers of units. NMFS would not designate critical 
habitat for the smalltooth sawfish under the no action (status quo) 
alternative. Under this

[[Page 45373]]

alternative, conservation and recovery of the listed species would 
depend exclusively upon the protection provided under the ``jeopardy'' 
provisions of Section 7 of the ESA and implementation of the recovery 
plan. Under the status quo, there would be no increase in the number of 
ESA consultations or project modifications in the future that would not 
otherwise be required due to the listing of the smalltooth sawfish. 
However, the physical and biological features forming the basis for our 
final critical habitat designation are essential to sawfish 
conservation, and conservation for this species will not succeed 
without the availability of these features. Thus, the lack of 
protection of the critical habitat features from adverse modification 
could result in continued declines in abundance of smalltooth sawfish, 
and loss of associated values sawfish provide to society. Further, this 
alternative is not consistent with the requirement of the ESA to 
designate critical habitat to the maximum extent prudent and 
determinable.
    Under the preferred alternative two specific areas that provide 
nursery functions for juvenile sawfish are included in the final 
critical habitat designation. These areas are located along peninsular 
Florida, encompassing portions of Charlotte, Lee, Collier, Monroe, and 
Miami-Dade counties. These two areas contain the physical and 
biological features essential to the conservation of the U.S. DPS of 
smalltooth sawfish. The essential features are red mangroves and 
shallow euryhaline habitats characterized by water depths between the 
MHW line and 3 ft (0.9 m) measured at MLLW that provide nursery area 
functions to smalltooth sawfish. The preferred alternative was selected 
because it best implements the critical habitat provisions of the ESA, 
by defining the specific features that are essential to the 
conservation of the species, and due to the important conservation 
benefits expected to result from this alternative relative to the no 
action alternative.
    Under the varying number of units alternative, we considered both 
combining the Charlotte Harbor Estuary Unit and the TTI/E Unit into a 
single unit for designation, and alternatively we considered splitting 
both units into multiple smaller units.
    Under the first scenario, the unit would include the Naples beach 
area between the two units, and thus would encompass a larger total 
area than the two units. Though juveniles have been encountered in the 
Naples beach area, they have not been encountered in high densities. We 
also do not believe that juveniles move between the Charlotte Harbor 
Estuary and TTI/E Units along this stretch of beach. Furthermore, while 
red mangroves exist along this area (though they are much more sparsely 
distributed than in the two units), the salinity regimes are much more 
purely marine than estuarine, and the features are not considered to 
provide the nursery functions essential to the conservation of the 
species in these areas. Thus, we rejected this alternative in our final 
critical habitat designation because the Naples Beach area is not 
considered to meet the definition of a nursery area.
    Under the second scenario, we considered options to split both the 
Charlotte Harbor Estuary Unit and the TTI/E Unit into multiple smaller 
units. We considered designating Charlotte Harbor and the 
Caloosahatchee Rivers as separate units, including limiting the sizes 
of each of these areas strictly to locations of past high density 
encounters of juveniles. We considered the same type of partitioning of 
the TTI/E Unit into smaller isolated units based on past high density 
encounters alone. We rejected the alternative of separating Charlotte 
Harbor and the Caloosahatchee River because State and local water 
resource managers consider the systems as a single integrated aquatic 
system. For both units, we rejected the alternative of multiple smaller 
units drawn around past high density juvenile encounters because we 
believe it would have omitted habitat that is almost certain nursery 
habitat for the sawfish between the separated small units. In addition, 
the essential features are continuously distributed from the harbor 
into the river, so this option would have omitted areas that meet the 
definition of critical habitat. Moreover, a designation limited to past 
encounters would not take into account the limits of this type of data 
in defining the extent of habitat use by the sawfish, and it would not 
provide protection for expanded nursery habitat needed for a recovering 
population. In addition, it was not clear that designating multiple 
smaller units would result in lower economic impacts of the 
designation, as the precise location of future consultations within 
these areas cannot be predicted based on available information.
    An environmental analysis as provided for under National 
Environmental Policy Act for critical habitat designations made 
pursuant to the ESA is not required. See Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
    Pursuant to the Executive Order on Federalism, E.O. 13132, the 
Assistant Secretary for Legislative and Governmental Affairs provided 
notice of this action and requested comments from the appropriate 
official(s) of the State of Florida. As mentioned above, Florida found 
the regulation consistent with its approved coastal management 
programs.
    This action has undergone a pre-dissemination review and determined 
to be in compliance with applicable information quality guidelines 
implementing the Information Quality Act (Section 515 of Pub. L. 106-
554).
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Web site at http://sero.nmfs.noaa.gov/pr/SmalltoothSawfish.htm and is available upon request from the NMFS 
Southeast Regional Office in St. Petersburg, Florida (see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: August 27, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 226 as 
set forth below:

PART 226--DESIGNATED CRITICAL HABITAT

    1. The authority citation of part 226 continues to read as follows:

    Authority:  16 U.S.C. 1533.


0
2. Add Sec.  226.218, to read as follows:
    Sec.  226.218 Critical habitat for the U.S. DPS of smalltooth 
sawfish (Pristis pectinata). Critical habitat is designated for the 
U.S. DPS of smalltooth sawfish as described in this section. The 
textual descriptions in paragraph (b) of this section are the 
definitive source for determining the critical habitat boundaries. The 
maps of the critical habitat units provided in paragraph (d) of this 
section are for illustrative purposes only.
    (a) Physical and biological features essential to the conservation 
of the endangered U.S. DPS of smalltooth sawfish. The physical and 
biological features essential to the conservation of the U.S. DPS of 
smalltooth sawfish, which provide nursery area functions are: red 
mangroves and shallow euryhaline habitats characterized by water depths 
between the Mean High Water line and 3 ft (0.9 m) measured at

[[Page 45374]]

Mean Lower Low Water (MLLW). These features are included in critical 
habitat within the boundaries of the specific areas in paragraph (b) of 
this section, except where the features were not physically accessible 
to sawfish at the time of this designation (September 2009); for 
example, areas where existing water control structures prevent sawfish 
passage to habitats beyond the structure.
    (b) Critical habitat boundaries. Critical habitat includes two 
areas (units) located along the southwest coast of peninsular Florida. 
The northern unit is the Charlotte Harbor Estuary Unit and the southern 
unit is the Ten Thousand Islands/Everglades (TTI/E) Unit. The units 
encompass portions of Charlotte, Lee, Collier, Monroe, and Miami-Dade 
Counties.
    (1) Charlotte Harbor Estuary Unit. The Charlotte Harbor Estuary 
Unit is located within Charlotte and Lee Counties. The unit includes 
Charlotte Harbor, Gasparilla Sound, Pine Island Sound, Matlacha Pass, 
San Carlos Bay, Estero Bay, and the Caloosahatchee River. The unit is 
defined by the following boundaries. It is bounded by the Peace River 
at the eastern extent at the mouth of Shell Creek at 81[deg]59.467' W, 
and the northern extent of the Charlotte Harbor Preserve State Park at 
26[deg]58.933' N. At the Myakka River the unit is bounded by the SR-776 
Bridge and in Gasparilla Sound by the SR-771 Bridge. The COLREGS-72 
lines between Gasparilla Island, Lacosta Island, North Captiva Island, 
Captiva Island, Sanibel Island, and the northern point of Estero Island 
are used as the coastal boundary for the unit. The southern extent of 
the unit is the Estero Bay Aquatic Preserve, which is bounded on the 
south by the Lee/Collier County line. Inland waters are bounded by SR-
867 (McGregor Boulevard) from Punta Rassa Road to SR-80 near Fort 
Myers, then by SR-80 (Palm Beach Boulevard) to Orange River Boulevard, 
then by Orange River Boulevard to Buckingham Road, then by Buckingham 
Road to SR-80, and then following SR-80 until it is due south of the 
Franklin Lock and Dam (S-79), which is the eastern boundary on the 
Caloosahatchee River and a structural barrier for sawfish access. 
Additional inland water boundaries north and west of the lock are 
bounded by North Franklin Lock Road to North River Road, then by North 
River Road to SR-31, then by SR-31 to SR-78 near Cape Coral, then by 
SR-78 to SR-765, then by SR-765 to US-41, then by US-41 to US-17 
(Marion Avenue) in Punta Gorda, then by US-17 to Riverside Drive, and 
then by Riverside Drive to the eastern extent of the Peace River at 
81[deg]59.467' W. From the northern extent of the Charlotte Harbor 
Preserve State Park at 26[deg]58.933' N, inland waters are bounded 
westward along that latitude to Harbor View Road, then by Harbor View 
Road to US-41, then by US-41 to SR-776, then by SR-776 to the Myakka 
River Bridge.
    (2) Ten Thousand Islands/Everglades Unit (TTI/E). The TTI/E Unit is 
located within Collier, Monroe, and Miami-Dade Counties, Florida. The 
unit includes waters within Everglades National Park (ENP), including 
Florida Bay, in the vicinity of Everglades City, within the Cape 
Romano-Ten Thousand Islands Aquatic Preserve (AP), and within the 
portion of Rookery Bay AP south of SR-92. The boundaries match the 
portion of Rookery Bay AP south of SR-92, and the Cape Romano-Ten 
Thousand Islands Aquatic Preserve AP. The unit boundaries also closely 
match the ENP boundaries with the following two exceptions: the unit 
boundary connects points 55 and 57 as illustrated in the critical 
habitat map that follows, which extend beyond the ENP boundary; and the 
unit boundary is located inside the ENP boundary between points 77 and 
2, omitting the northeast portion of the ENP. The boundary of the unit 
is comprised of the following connected points, listed by point number 
in the ID field, degrees North latitude, degrees West longitude, and 
brief description of the boundary.

         Table 2--List of Latitude and Longitude Boundary Points
------------------------------------------------------------------------
        ID            Latitude    Longitude           Description
------------------------------------------------------------------------
1.................      25.2527     -80.7988  Main Park Road (SR-9336)
                                               at Nine Mile Pond.
2.................      25.2874     -80.5736  Everglades National Park
                                               boundary.
3.................      25.2872     -80.4448  Everglades National Park
                                               boundary at US-HWY 1.
4.................      25.2237     -80.4308  Everglades National Park
                                               boundary at US-HWY 1.
5.................      25.1979     -80.4173  Everglades National Park
                                               boundary at US-HWY 1.
6.................      25.1846     -80.3887  Everglades National Park
                                               boundary at US-HWY 1.
7.................      25.1797     -80.3905  Everglades National Park
                                               boundary at US-HWY 1.
8.................      25.1480     -80.4179  Everglades National Park
                                               boundary at Intercoastal
                                               Waterway (ICW).
9.................      25.1432     -80.4249  Everglades National Park
                                               boundary at ICW.
10................      25.1352     -80.4253  Everglades National Park
                                               boundary at ICW.
11................      25.1309     -80.4226  Everglades National Park
                                               boundary at ICW.
12................      25.1282     -80.4230  Everglades National Park
                                               boundary at ICW.
13................      25.1265     -80.4268  Everglades National Park
                                               boundary at ICW.
14................      25.1282     -80.4432  Everglades National Park
                                               boundary at ICW.
15................      25.0813     -80.4747  Everglades National Park
                                               boundary at ICW.
16................      25.0676     -80.4998  Everglades National Park
                                               boundary at ICW.
17................      25.0582     -80.5218  Everglades National Park
                                               boundary at ICW.
18................      25.0373     -80.5178  Everglades National Park
                                               boundary at ICW.
19................      25.0326     -80.5188  Everglades National Park
                                               boundary at ICW.
20................      25.0168     -80.5487  Everglades National Park
                                               boundary at ICW.
21................      25.0075     -80.5578  Everglades National Park
                                               boundary at ICW.
22................      24.9990     -80.5609  Everglades National Park
                                               boundary at ICW near
                                               Plantation.
23................      24.9962     -80.5648  Everglades National Park
                                               boundary at ICW.
24................      24.9655     -80.6347  Everglades National Park
                                               boundary at ICW.
25................      24.9430     -80.6585  Everglades National Park
                                               boundary at ICW.
26................      24.9388     -80.6716  Everglades National Park
                                               boundary at ICW.
27................      24.9124     -80.7255  Everglades National Park
                                               boundary at ICW.
28................      24.9006     -80.7348  Everglades National Park
                                               boundary at ICW.
29................      24.8515     -80.8326  Everglades National Park
                                               boundary at COLREG-72.
30................      24.8730     -80.8875  Everglades National Park
                                               boundary at Arsenic Bank
                                               Light.
31................      24.9142     -80.9372  Everglades National Park
                                               boundary at Sprigger Bank
                                               Light.
32................      25.0004     -81.0221  Everglades National Park
                                               boundary.

[[Page 45375]]

 
33................      25.0723     -81.0859  Everglades National Park
                                               boundary.
34................      25.0868     -81.0858  Everglades National Park
                                               boundary.
35................      25.1567     -81.1620  Everglades National Park
                                               boundary at Middle Cape
                                               Sable.
36................      25.2262     -81.2044  Everglades National Park
                                               boundary.
37................      25.3304     -81.1776  Everglades National Park
                                               boundary at Little Shark
                                               River.
38................      25.4379     -81.1940  Everglades National Park
                                               boundary.
39................      25.5682     -81.2581  Everglades National Park
                                               boundary.
40................      25.7154     -81.3923  Everglades National Park
                                               boundary at Pavillion
                                               Key.
41................      25.8181     -81.5205  Everglades National Park
                                               boundary.
42................      25.8326     -81.5205  Everglades National Park
                                               boundary at Cape Romano--
                                               Ten Thousand Islands
                                               Aquatic Preserve.
43................      25.8315     -81.7450  Rookery Bay Aquatic
                                               Preserve boundary
                                               (southwest corner).
44................      25.9003     -81.7468  Rookery Bay Aquatic
                                               Preserve boundary.
45................      25.9030     -81.6907  Rookery Bay Aquatic
                                               Preserve boundary.
46................      25.9380     -81.6907  Rookery Bay Aquatic
                                               Preserve boundary at SR-
                                               92.
47................      25.9378     -81.6834  Rookery Bay Aquatic
                                               Preserve boundary at SR-
                                               92.
48................      25.9319     -81.6718  Rookery Bay Aquatic
                                               Preserve boundary at SR-
                                               92.
49................      25.9330     -81.6508  Rookery Bay Aquatic
                                               Preserve boundary at SR-
                                               92.
50................      25.9351     -81.6483  Rookery Bay Aquatic
                                               Preserve boundary at SR-
                                               92.
51................      25.9464     -81.6433  Rookery Bay Aquatic
                                               Preserve boundary at SR-
                                               92.
52................      25.9470     -81.6200  Cape Romano--Ten Thousand
                                               Islands Aquatic Preserve
                                               boundary.
53................      25.9615     -81.6206  Cape Romano--Ten Thousand
                                               Islands Aquatic Preserve
                                               boundary.
54................      25.9689     -81.6041  Cape Romano--Ten Thousand
                                               Islands Aquatic Preserve
                                               boundary.
55................      25.9130     -81.4569  Cape Romano--Ten Thousand
                                               Islands Aquatic Preserve
                                               boundary.
56................      25.8916     -81.4082  Everglades National Park
                                               boundary west of
                                               Everglades City.
57................      25.8630     -81.3590  Everglades National Park
                                               boundary east of
                                               Everglades City.
58................      25.8619     -81.2624  Everglades National Park
                                               boundary.
59................      25.8040     -81.2602  Everglades National Park
                                               boundary.
60................      25.8040     -81.2126  Everglades National Park
                                               boundary.
61................      25.7892     -81.2128  Everglades National Park
                                               boundary.
62................      25.7892     -81.1969  Everglades National Park
                                               boundary.
63................      25.7743     -81.1966  Everglades National Park
                                               boundary.
64................      25.7740     -81.1803  Everglades National Park
                                               boundary.
65................      25.7591     -81.1803  Everglades National Park
                                               boundary.
66................      25.7592     -81.1641  Everglades National Park
                                               boundary.
67................      25.7295     -81.1638  Everglades National Park
                                               boundary.
68................      25.7299     -81.1165  Everglades National Park
                                               boundary.
69................      25.7153     -81.1164  Everglades National Park
                                               boundary.
70................      25.7154     -81.1002  Everglades National Park
                                               boundary.
71................      25.6859     -81.0997  Everglades National Park
                                               boundary.
72................      25.6862     -81.0836  Everglades National Park
                                               boundary.
73................      25.6715     -81.0835  Everglades National Park
                                               boundary.
74................      25.6718     -81.0671  Everglades National Park
                                               boundary.
75................      25.6497     -81.0665  Everglades National Park
                                               boundary.
76................      25.6501     -81.0507  Everglades National Park
                                               boundary.
77................      25.6128     -81.0497  Everglades National Park
                                               boundary.
------------------------------------------------------------------------

     (c) Areas not included in critical habitat. Critical habitat does 
not include the following particular areas where they overlap with the 
areas described in paragraph (b) of this section:
    (1) Pursuant to ESA section 3(5)(A)(i), all areas containing 
existing (already constructed) federally authorized or permitted man-
made structures such as channels or canals maintained at depths greater 
than 3 ft. at MLLW, boat ramps, docks, and marinas deeper than 3 ft. at 
MLLW.
    (2) Pursuant to ESA section 3(5)(A)(i), all waters identified as 
existing (already constructed) federally authorized channels as 
follows:
    (i) Charlotte Harbor.
    (ii) Ft. Myers Beach (Matanzas Pass).
    (iii) Portions of the Gulf Intracoastal Waterway in the 
Caloosahatchee River.
    (d) Maps. Overview maps of designated critical habitat for the U.S. 
DPS of smalltooth sawfish follow.
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