[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-18975] [[Page Unknown]] [Federal Register: August 4, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 226 [Docket No. 940701-4201; I.D. 113093B] Designated Critical Habitat; Johnson's Seagrass AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: NMFS is proposing to designate critical habitat for Johnson's seagrass (Halophila johnsonii) pursuant to section 4 of the Endangered Species Act (ESA). Because the subject matter of this proposed rule is closely related to a proposal published on September 15, 1993 (58 FR 48326), to list Johnson's seagrass as a threatened species, NMFS is announcing a public hearing to consider both proposed rules. NMFS is also reopening the comment period for the proposed rule to list Johnson's seagrass. The hearing will be held September 20, 1994, in Vero Beach, FL. Johnson's seagrass is found on the east coast of Florida from Sebastian Inlet to central Biscayne Bay. Within this range, five areas in proximity to Sebastian Inlet, Ft. Pierce Inlet, St. Lucie Inlet, Jupiter Inlet and Lake Worth Inlet are proposed for critical habitat. In addition, the proposed critical habitat designation identifies those physical and biological features of the habitat that are essential to the conservation of the species and that may require special management consideration or protection. The economic and other impacts resulting from this critical habitat designation, over and above those arising from the listing of the species under the ESA, are expected to be minimal. The designation of proposed critical habitat provides explicit notice to Federal agencies and the public that these areas and features are vital to the conservation of the species. DATES: Comments on both proposed rules must be received by October 13, 1994. The public hearing will be held on Tuesday, September 20, 1994, at 7:30 p.m. ADDRESSES: Send comments and requests for the environmental assessment on the proposed designation of critical habitat and the status review for listing Johnson's seagrass to Dr. William W. Fox, Jr., Director, Office of Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910. The public hearing will be held in the Commission Chambers of the Indian River County Administration Building, 1840 25th Street, Vero Beach, FL. FOR FURTHER INFORMATION CONTACT: Margaret C. Lorenz, Office of Protected Resources, NMFS, 301/713-2322, or Colleen Coogan, Southeast Region, NMFS, 813/893-3366. SUPPLEMENTARY INFORMATION: Background NMFS published a proposed rule to list Johnson's seagrass as a threatened species on September 15, 1993 (58 FR 48326). Critical habitat was not proposed for designation at that time because the analysis of impacts of the proposed designation, as required by section 4(b)(2) of the ESA, had not been completed. NMFS has now completed an environmental assessment (EA), pursuant to the National Environmental Policy Act (NEPA), to evaluate both the environmental and economic impacts of the proposed critical habitat designation (See ADDRESSES). The proposed designation identifies those physical and biological features of the habitat that are essential to the conservation of the species and that may require special management consideration or protection. The direct economic and other impacts resulting from designating critical habitat, over and above those that result from listing the species, are expected to be minimal. Definition of Critical Habitat Critical habitat is defined in section 3(5)(A) of the ESA as ``(i) the specific areas within the geographical area occupied by the species * * * on which are found those physical or biological features (I) Essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species * * * upon a determination by the Secretary that such areas are essential for the conservation of the species.'' Areas outside the current range of a species can only be designated if a designation limited to the species' present distribution would be inadequate to ensure the conservation of the species. The term conservation, as defined in section 3(3) of the ESA, means ``* * * to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.'' The criteria to be considered in designating critical habitat are specified under 50 CFR 424.12. When designating critical habitat, NMFS considers physical and biological features that are essential to the conservation of the species and that may require special management consideration or protection, including but not limited to the following: (1) Space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction or rearing of offspring; and, generally, (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of the species. In addition, NMFS must list the known physical and biological features (primary constituent elements) within the designated area(s) that are essential to the conservation of the species and that may require special management considerations or protection. These essential features may include, but are not limited to, food resources, water quality or quantity and vegetation and sediment types and stability. Consideration of Economic and Other Factors The economic, environmental and other impacts of a designation must also be evaluated and considered. NMFS must identify present and future activities that may adversely modify the proposed critical habitat or be affected by a designation. An area may be excluded from a critical habitat designation if NMFS determines that the overall benefits of exclusion outweigh the benefits of designation, unless the exclusion will result in the extinction of the species. The impacts considered in this analysis are only those incremental impacts that specifically result from designating critical habitat, above the economic and other impacts attributable to listing the species. These incremental impacts are expected to be minimal (See Significance of Designating Critical Habitat section). In general, the designation of critical habitat duplicates and reinforces the substantive protection resulting from the listing itself. Impacts attributable to listing include those resulting from the taking prohibitions under section 9 and associated regulations. With respect to fish and wildlife, ``taking'' as defined in the ESA includes harm to a listed species. Harm can occur through destruction or modification of habitat (whether or not designated as critical) that significantly impairs essential behaviors, including breeding, feeding or sheltering. With respect to plants, section 9 of the ESA makes it unlawful for any person subject to U.S. jurisdiction to ``remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any state or in the course of any violation of a state criminal trespass law.'' Although this provision does not prohibit takings, such as harm or harassment of a species of fish or wildlife, it does provide protection for plants in areas under Federal jurisdiction and under state laws. As with the takings prohibition for fish and wildlife, these protections are triggered when a species is listed. Therefore, generally, the critical habitat designation will duplicate these protections. This is particularly true with respect to acts that ``remove, cut, dig up or damage or destroy listed plants in knowing violation of any law or regulation of any state.'' Impacts attributable to listing also include those resulting from the responsibility of all Federal agencies under section 7 to ensure that their actions are not likely to jeopardize endangered or threatened species. An action could be likely to jeopardize the continued existence of a listed species through the destruction or adverse modification of its habitat, whether or not that habitat has been designated as critical. Significance of Designating Critical Habitat The designation of critical habitat does not, in itself, restrict state or private activities within the area. A critical habitat designation contributes to conservation of the species primarily by identifying critically important areas and describing the features within the areas that are essential to the species, thus alerting public and private entities to the importance of the area. Under the ESA, the only direct impact of a critical habitat designation is through the provisions of section 7. Section 7 applies only to actions with Federal involvement and does not affect state or private activities unless there is Federal involvement. Under the section 7 provisions, a designation of critical habitat would require Federal agencies to ensure that any action they authorize, fund, or carry out is not likely to destroy or adversely modify the designated critical habitat. Activities that adversely modify critical habitat are defined as those actions that ``appreciably diminish the value of critical habitat for both the survival and recovery'' of the species (50 CFR 402.02). However, if no critical habitat has been designated, Federal agencies still must ensure that their actions are not likely to jeopardize the continued existence of the listed species. Activities that jeopardize a species are defined as those actions that ``reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery'' of the species (50 CFR 402.02). Using these definitions, activities that destroy or adversely modify critical habitat also are likely to jeopardize the species. Therefore, the protection provided by a critical habitat designation usually only duplicates the protection provided under the section 7 jeopardy provision. Critical habitat may provide additional benefits to a species where areas outside of the species' current range have been designated. In these cases, it is expected that Federal agencies would consult on actions occurring in these areas for which they would otherwise not need to consult. A designation of critical habitat provides a clearer indication to the Federal agencies as to when consultation under section 7 is required, particularly in cases where the action would not result in direct mortality or injury to individuals of a listed species (e.g., an action occurring within the critical area when a migratory species is not present). The critical habitat designation, describing the essential features of the habitat, also assists in determining which activities conducted outside the designated area are subject to section 7 (i.e., activities that may affect essential features of the designated area). For example, disposal of waste material in water adjacent to a critical habitat area may affect an essential feature of the designated habitat (water quality) and would be subject to the provisions of section 7 of the ESA. A critical habitat designation also assists Federal agencies in planning future actions, since the designation establishes, in advance, those habitats that will be given special consideration in section 7 consultations. This is particularly true in cases where there are alternative areas that would provide for the conservation of the species. With a designation of critical habitat, potential conflicts between projects and endangered or threatened species can be identified and possibly avoided early in the agency's planning process. Another indirect benefit of designating critical habitat is that it helps focus Federal, state and private conservation and management efforts in those areas. Recovery efforts may address special considerations needed in critical habitat areas, including conservation regulations to restrict private as well as Federal activities. The economic and other impacts of these actions would be considered at the time of proposal, and, therefore, are not considered in the critical habitat designation process. Other Federal, state and local laws or regulations, such as zoning or wetlands protection, may also provide special protection for critical habitat areas. Process for Designating Critical Habitat Developing a proposal for critical habitat designation involves three main considerations. First, the biological needs of the species are evaluated and essential habitat areas and features are identified. If there are alternative areas that would provide for the conservation of the species, these alternatives are also identified. Second, the need for special management considerations or protection of the area(s) or features is evaluated. Finally, the probable economic and other impacts of designating these essential areas as ``critical habitat'' are evaluated. After considering the requirements of the species, the need for special management, and the impacts of the designation, the proposed critical habitat is published in the Federal Register for comment. The final critical habitat designation, considering comments on the proposal and impacts assessment, should be published within 1 year of the proposal. Section 4 (a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, NMFS designate critical habitat concurrently with a determination that a species is endangered or threatened. Final critical habitat designations may be revised, using the same process, as new data become available. A description of the essential habitat, need for special management considerations, and impacts of designating critical habitat for Johnson's seagrass, as well as the proposed action, are described in the following sections. Essential Habitat of Johnson's Seagrass The biology of Johnson's seagrass is discussed in the proposed rule to list the species as threatened (58 FR 48326, September 15, 1993) and includes information on the status of the species, its life history characteristics and habitat requirements, as well as projects, activities and other factors affecting the species. The current status of Johnson's seagrass is presented in the EA prepared for this critical habitat designation. The physical habitat that supports Johnson's seagrass includes both shallow intertidal as well as deeper subtidal zones. The species prospers and is able to colonize and maintain stable populations either in water that is clear and deep (2-5 m) or in water that is shallow and turbid. In tidal channels, it inhabits coarse sand substrates. Based on published reports and discussions with seagrass experts, the distributional range of Johnson's seagrass is limited to the east coast of Florida from central Biscayne Bay (25 deg.45' N. lat.) to Sebastian Inlet (27 deg.50' N. lat.). There have been no reports of healthy populations of this species outside the presently known range. Although the species occurs throughout the Indian River Lagoon and Lake Worth, the five specific areas proposed for critical habitat encompass the largest known contiguous populations of Johnson's seagrass. While a population within Biscayne Bay has been confirmed by literature and observation, it is discontinuous from the other areas where the species is found, and the area has not been studied or delineated. The species is patchily distributed within its range. The dimensions of patches range from a few square centimeters to approximately 327 square meters. The survival of the species likely depends on maintaining its existing viable populations, especially the areas where the larger patches are found. The Sebastian Inlet population is believed to be the northern limit of its distribution and includes the largest known patch of Johnson's seagrass. The other areas proposed for critical habitat designation represent the core range of the species. Spread of the species into new areas is limited by its reproductive potential. Johnson's seagrass possesses only female flowers; thus vegetative propagation, most likely through asexual branching, appears to be its only means of reproduction and dispersal. If an established community is disturbed, regrowth and reestablishment is extremely unlikely. If extirpated from an area, it is doubtful that the species would be capable of repopulation. This species' method of reproduction impedes its ability to increase distribution as establishment of new vegetation requires considerable stability in environmental conditions and protection from human-induced disturbances. Based on the best available information, the essential features of the areas proposed for critical habitat designation include adequate (1) water quality; (2) salinity levels; (3) water transparency; (4) and stable, unconsolidated sediments that are free from physical disturbance. Need for Special Management Consideration or Protection NMFS has determined that the essential areas and features described in the previous section are at risk and may require special management consideration or protection. Special management may be required because of the following activities: (1) Vessel traffic and the resulting propeller dredging and anchor mooring; (2) maintenance dredging; (3) dock and marina construction; (4) water pollution; and (5) land use practices. Activities associated with recreational boat traffic account for the majority of human use associated with the proposed critical habitat areas. The destruction of the benthic community due to boating activities, propeller dredging, anchor mooring and dock and marina construction was observed at all sites during a study by NMFS from 1990-1992. These activities severely disrupt the benthic habitat, breaching root systems and severing rhizomes and significantly reducing the viability of the benthic community. Propeller dredging and anchor mooring in shallow areas is a major disturbance to even the most robust seagrasses. This destruction is expected to worsen with the predicted increase in boating activity (Pat Rose, Florida Department of Natural Resources, personal communication). Trampling of seagrass beds, a secondary effect of recreational boating, also contributes to disturbing seagrass habitat. Populations of Johnson's seagrass inhabiting shallow water close to inlets where vessel traffic is concentrated will be most affected. The constant sedimentation patterns in and around inlets require frequent maintenance dredging, which could either directly remove essential seagrass habitat or indirectly affect it by redistributing sediments, burying plants and destabilizing the bottom structure. Altering benthic topography or burying the plants may remove them from the photic zone. Decreased water transparency caused by suspended sediments, water color and chlorophylls could have significant detrimental effects on the distribution and abundance of the deeper water populations of Johnson's seagrass. Evidence from a distribution survey in Hobe and Jupiter Sounds indicates that the abundance of this seagrass diminishes in the more turbid interior portion of the lagoon where reduced photosynthetically active radiation (PAR) limits photosynthesis. Other areas of concern include seagrass beds located in proximity to rivers and canal mouths where low salinity, highly colored water is discharged. Freshwater discharge into areas adjacent to seagrass beds may provoke physiological stress upon the plants by reducing the salinity levels. Additionally, colored waters released into these areas reduce the amount of sunlight necessary for photosynthesis by rapidly attenuating shorter wavelengths of PAR. Also, continuing and increasing degradation of water quality due to increased land use and water management threatens the welfare of seagrass communities. Nutrient overenrichment caused by inorganic and organic nitrogen and phosphorous loading via urban and agricultural land run-off stimulates increased algal growth that may smother Johnson's seagrass, shade rooted vegetation and diminish the oxygen content of the water. Low oxygen conditions have a demonstrated negative impact on seagrasses and associated communities. Special consideration and protection for these and other habitat features will be evaluated during the section 7 process and in development and implementation of a recovery plan. If adequate protection cannot be provided through consultation or through the recovery planning process, separate management actions with binding requirements may be considered. Federal Activities that May Impact Essential Habitat and Features A wide range of activities funded, authorized or carried out by Federal agencies may affect the essential habitat requirements of Johnson's seagrass. These include authorization by the U.S. Army Corps of Engineers for beach nourishment, dredging and related activities including construction of docks and marinas; actions by the U.S. Environmental Protection Agency to manage freshwater discharges into waterways; regulation of vessel traffic by the U.S. Coast Guard; authorization of oil and gas exploration by the Minerals Management Service; management of national refuges and protected species by the U.S. Fish and Wildlife Service; management of vessel traffic and other activities by the U.S. Navy; authorization of state coastal zone management plans by NOAA's National Ocean Service, and management of commercial fishing and protected species by NMFS. Expected Impacts of Designating Critical Habitat Under section 7 of the ESA, Federal agencies are required to ensure that actions that they authorize, fund or carry out are not likely to jeopardize the continued existence of listed species or to result in the destruction or adverse modification of listed species' critical habitat. Also, takings of Johnson's seagrass will be prohibited under the proposed regulations issued to list the species as threatened. This designation will identify specific habitat areas that have been determined to be essential for the conservation of Johnson's seagrass and that may be in need of special management considerations or protection. It will require Federal agencies to evaluate their activities with respect to the critical habitat of this species and to consult with NMFS pursuant to section 7 of the ESA before engaging in any action that may affect the critical habitat. However, if Johnson's seagrass is listed as proposed, Federal agencies active within the range of the species will be required to consult with NMFS if projects and activities they authorize, fund or otherwise carry out may affect the species, regardless of whether critical habitat is designated. Therefore, it is unlikely that additional consultations will result from designating critical habitat for Johnson's seagrass. In addition, it is not likely that designation of critical habitat for Johnson's seagrass will have any additional adverse economic impacts on Federal, state or private activities beyond those that would occur as a result of listing the species. As discussed in the section on activities that may impact essential habitat and features, the Federal activities that may affect critical habitat are the same activities that may affect the species itself. For plants, this is particularly true when analyzing the impacts of designating critical habitat. For example, the activities that affect water quality, an essential feature of critical habitat, also will be considered in terms of how they affect the species itself. Should this proposed designation of critical habitat be adopted, Federal agencies will continue to engage in section 7 consultations to determine if the actions they authorize, fund or carry out are likely to jeopardize the continued existence of Johnson's seagrass; however, with designation, they would also need to address explicitly impacts to the species' critical habitat. This is not expected to affect materially the scope of future consultations or result in greater economic impacts, since the impacts to Johnson's seagrass habitat will already be considered in section 7 consultations. The economic costs to be considered in a critical habitat designation are the incremental costs of designation above the economic impacts attributable to listing or attributable to authorities other that the ESA. NMFS has determined that there are no incremental net costs for areas within the species' current distribution, and no areas outside the current range are proposed for critical habitat designation. Proposed Critical Habitat Based on available information, NMFS proposes to designate critical habitat that is considered essential for the survival and recovery of Johnson's seagrass and that may require special management consideration or protection. The critical habitat designation proposed by this rule includes the largest contiguous areas that are currently utilized by Johnson's seagrass. Although Johnson's seagrass is found throughout the Indian River Lagoon, Lake Worth and in some areas of Biscayne Bay, NMFS is not proposing to include these areas in the proposed designation until more information is available and the areas are delineated, and it can be determined that these areas meet the requirements for designation as critical habitat. For the same reason, NMFS is not including in the proposed designation any areas outside the species' currently known geographical area. NMFS has concluded that, at this time, proper management of the essential features of the areas in proximity to the five inlets will be sufficient to provide for the survival and recovery of this species. If the species is listed as proposed, Federal activities in any area occupied by Johnson's seagrass would be subject to the section 7 consultation process whether or not the area has been designated as critical habitat. In addition, NMFS may reconsider this evaluation and propose additional areas for critical habitat at any time. The five areas proposed for critical habitat designation include the intertidal and subtidal areas in proximity to five inlets on the east coast of Florida. These areas are within 3 to 5 kilometers of the inlet and experience regular tidal flushing with salinity greater than 15 ppt. Maps are provided for reference purposes to guide Federal agencies and other interested parties in locating the general boundaries of the proposed critical habitat. They do not constitute the definition of the boundaries of critical habitat. Persons must refer to the regulations at 50 CFR 226.91 for the actual boundaries of the designated critical habitat. Public Comments Solicited NMFS is soliciting information, comments or recommendations on any aspect of this proposal from all interested parties. NMFS will consider all recommendations received before reaching a final decision. Because the proposed rule for adding this species to the List of Threatened and Endangered Species and designation of critical habitat are closely related, NMFS will hold a public hearing to receive comments on both rulings (see DATES and ADDRESSES). Classification This proposed rule has been determined to be not significant for purposes of E.O. 12866. Pursuant to the Regulatory Flexibility Act, the General Counsel of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities since it is primarily Federal agencies that will be affected. Therefore, a regulatory flexibility analysis is not required. The Assistant Administrator for Fisheries (NOAA) has determined that the proposed designation is consistent to the maximum extent practicable with the approved Coastal Zone Management Program of the State of Florida. This determination has been submitted for review by the responsible state agency under section 3.7 of the Coastal Zone Management Act. NOAA Administrative Order 216-6 states that critical habitat designations under the ESA are categorically excluded from the requirement to prepare an environmental assessment (EA) or an environmental impact statement. However, in order to evaluate more clearly the impacts of the proposed critical habitat designation, NMFS has prepared an EA. Copies of the assessment are available on request (see ADDRESSES). List of Subjects in 50 CFR Part 226 Endangered and threatened species. Dated: July 25, 1994. Gary C. Matlock, Program Management Officer, National Marine Fisheries Service. For the reasons set forth in the preamble, 50 CFR part 226 is proposed to be amended as follows: PART 226--DESIGNATED CRITICAL HABITAT 1. The authority citation for part 226 continues to read as follows: Authority: 16 U.S.C. 1533. Subpart E--[Reserved] 2. A new subpart E is added to part 226 and reserved. 3. A new subpart F is added to part 226, consisting of Sec. 226.91, to read as follows: Subpart F--Critical Habitat for Marine Plants Sec. 226.91 Johnson's seagrass (Halophila johnsonii). (a) A portion of the Indian River, Florida, within the following boundary: Beginning at the northwestern entrance of Sebastian Inlet, follow the shoreline north to the tip of Mud Hole; cross the Indian River at Mud Hole to the Intercoastal Waterway; follow the Intercoastal Waterway south for 7.5 miles; cross the Indian River and follow the shoreline north to the southwestern entrance of Sebastian Inlet (Sebastian, Fla., 1970, U.S.G.S. 7.5' quad.). (b) A portion of the Indian River, Florida, within the following boundary: Beginning at the northwestern entrance to Ft. Pierce Inlet, follow the shoreline north to the North Beach Causeway and the A1A Bridge; move west across the river at the causeway and bridge and follow the shoreline south for 1.5 miles; cross the Indian River to the shoreline of the Jensen Beach to Jupiter Inlet Aquatic Preserve; follow the shoreline north to the southwestern entrance of Ft. Pierce Inlet (Fort Pierce, Fla., 1983, U.S.G.S. 7.5' quad.). (c) A portion of the Indian River within the following boundary: Beginning at the northwestern entrance of St. Lucie Inlet follow the shoreline north to the A1A Bridge; cross the river at the bridge and follow the shoreline south to the entrance of the Intercoastal Waterway at St. Lucie State Park; follow the shoreline north to the southwestern entrance of St. Lucie Inlet (Fort Pierce, Fla., 1983, U.S.G.S. 7.5' quad.). (d) A portion of Jupiter Sound and Hobe Sound, Florida, within the following boundary: Beginning at the northwestern entrance to Jupiter Inlet, follow the shoreline north to the Highway 707 Bridge; cross Hobe Sound at the bridge and follow the shoreline south; cross the Route 1 Bridge and follow the shoreline to the southwestern entrance of Jupiter Inlet (Jupiter, Fla, 1983, U.S.G.S. 7.5' quad. and Hobe Sound, Fla., 1967, U.S.G.S. 7.5' quad.). (e) A portion of Lake Worth, Florida, within the following boundary: Beginning at the northwestern entrance to Lake Worth Inlet, follow the shoreline north to the Riviera Beach bridge; cross Lake Worth at the bridge and follow the shoreline south for 2.5 miles; cross Lake Worth and follow the shoreline to the southwestern entrance of Lake Worth Inlet (Riviera Beach, Fla., 1983, U.S.G.S. 7.5' quad). 4. Figures 9 through 13 are added in numerical order to the end of part 226 to read as follows: BILLING CODE 3510-22-W![]()
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TP04AU94.009 [FR Doc. 94-18975 Filed 8-3-94; 8:45 am] BILLING CODE 3510-22-P