Federal Register: November 26, 2008 (Volume 73, Number 229)

DOCID: fr26no08-21 FR Doc E8-27748

Veterans Affairs Department

CFR Citation: 50 CFR Parts 223 and 226

Docket ID: [Docket No. 070801431-81370-02]

RIN ID: RIN 0648-AV35

NOTICE: Part V

DOCID: fr26no08-21

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY:

Endangered and Threatened Species; Critical Habitat for Threatened Elkhorn and Staghorn Corals

DATES: This rule becomes effective December 26, 2008.

DOCUMENT SUMMARY:

We, the National Marine Fisheries Service (NMFS), issue a final rule designating critical habitat for elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals, which we listed as threatened under the Endangered Species Act of 1973, as amended (ESA), on May 9, 2006. Four specific areas are designated: the Florida area, which comprises approximately 1,329 square miles (3,442 sq km) of marine habitat; the Puerto Rico area, which comprises approximately 1,383 square miles (3,582 sq km) of marine habitat; the St. John/St. Thomas area, which comprises approximately 121 square miles (313 sq km) of marine habitat; and the St. Croix area, which comprises approximately 126 square miles (326 sq km) of marine habitat. We are excluding one military site, comprising approximately 5.5 square miles (14.3 sq km), because of national security impacts.

SUMMARY:

Commerce Department, National Oceanic and Atmospheric Administration,

SUPPLEMENTAL INFORMATION

Background

On May 9, 2006, we listed elkhorn and staghorn corals as threatened under the ESA (71 FR 26852; May 9, 2006). At the time of listing, we also announced our intention to propose critical habitat for elkhorn and staghorn corals. Critical habitat for both elkhorn and staghorn corals was proposed on February 6, 2008 (73 FR 6895); a correction notice regarding one of the maps was published on March 6, 2008 (73 FR 12068). We solicited comments from the public on all aspects of the proposed rule. An initial regulatory flexibility analysis (IRFA) and a draft impacts report prepared pursuant to section 4(b)(2) of the ESA were available for public review and comment along with the proposed rule. These documents have been finalized in support of the final critical habitat designation.

The proposed rule identified the key conservation objective for the corals as facilitating increased incidence of successful sexual and asexual reproduction. We determined the feature essential to the conservation of the species (also known as essential feature), which supports the identified conservation objective, was substrate of suitable quality and availability, in water depths from the mean high water (MHW) line to 30 m, to support successful larval settlement, recruitment, and reattachment of fragments. For purposes of this definition, ``substrate of suitable quality and availability'' meant consolidated hardbottom or dead coral skeleton that is free from fleshy macroalgae cover and sediment cover. We proposed to designate four specific areas that contain the essential feature: (1) the Florida area, which comprised approximately 3,301 square miles (8,550 sq km) of marine habitat; the Puerto Rico area, which comprised approximately 1,383 square miles (3,582 sq km) of marine habitat; the St. John/St. Thomas area, which comprised approximately 121 square miles (313 sq km) of marine habitat; and the St. Croix area, which comprised approximately 126 square miles (326 sq km) of marine habitat. We also proposed to exclude one military site, comprising approximately 47 square miles (123 sq km), because of national security impacts. Elkhorn and Staghorn Coral Natural History

The following discussion of the life history and reproductive biology of threatened corals is based on the best scientific data available, including the Atlantic Acropora Status Review Report (Acropora Biological Review Team, 2005), and additional information, particularly concerning the genetics of these corals.

Acropora spp. are widely distributed throughout the Caribbean (U.S. Florida, Puerto Rico, U.S. Virgin Islands (U.S.V.I.), Navassa; and Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin Islands, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Grenada, Guadeloupe, Haiti, Honduras, Jamaica, Martinique, Mexico, Netherlands Antilles, Nicaragua, Panama, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and Venezuela). In general, elkhorn and staghorn corals have the same geographic distribution, with a few exceptions. The maximum northern extent (Palm Beach County, Florida) of staghorn coral occurrence is farther north than that of elkhorn coral (Broward County, Florida). Staghorn coral commonly grows in more protected, deeper water ranging from 5 to 20 m in depth and has been found in rare instances to 60 m. Elkhorn coral commonly grows in turbulent shallow water on the seaward face of reefs in water ranging from 1 to 5 m in depth but has been found to 30 m depth.

Elkhorn and staghorn corals were once the most abundant and most important species on Caribbean coral reefs in terms of accretion of reef structure. Relative to other corals, elkhorn and staghorn corals have high growth rates that have allowed reef growth to keep pace with past changes in sea level. Both species exhibit branching morphologies that provide important habitat for other reef organisms. Environmental influences (e.g., wave action, currents) result in morphological variation (e.g., length and shape of branches) in both species.

Staghorn coral is characterized by staghorn antlerlike colonies with cylindrical, straight, or slightly curved branches. The diameter of staghorn coral branches ranges from 1 to 4 cm, and tissue color ranges from golden yellow to medium brown. The growing tips of staghorn coral tend to be lighter or lack color. The linear growth rate for staghorn coral has been reported to range from 3 to 11.5 cm/year. Today, staghorn coral colonies typically exist as isolated branches and small thickets, 0.5 to 1 m across in size, unlike the vast fields (thickets) of staghorn found commonly during the 1970s.

Elkhorn coral is the larger species of Acropora found in the Atlantic. Colonies are flattened to near round with frondlike branches. Branches are up to 50 cm across and range in thickness from 2 to 10 cm, tapering towards the branch terminal. Like staghorn coral, branches are white near the growing tip, and brown to tan away from the growing area. The linear growth rate for elkhorn coral is reported to range from 4 to 11 cm/year. Individual colonies can grow to at least 2 m in height and 4 m in diameter.

Elkhorn and staghorn corals require relatively clear, well circulated water
[[Page 72211]]
and are almost entirely dependent upon sunlight for nourishment through the photosynthetic products of their symbiotic zooxanthellae. Unlike other coral species, neither acroporid species is likely to compensate for longterm reductions in water clarity with alternate food sources, such as zooplankton and suspended particulate matter. Typical water temperatures in which Acropora spp. occur range from 21[deg] to 29[deg] C, with the species being able to tolerate temperatures higher than the seasonal maximum for a brief period of time (days to weeks, depending on the magnitude of the temperature elevation). The species' response to temperature perturbations is dependent on the duration and intensity of the event. Both acroporids are susceptible to bleaching (loss of symbiotic algae) under adverse environmental conditions.

Acropora spp. reproduce both sexually and asexually. Elkhorn and staghorn corals do not differ substantially in their sexual reproductive biology. Both species are broadcast spawners: male and female gametes are released into the water column where fertilization takes place. Additionally, both species are simultaneous
hermaphrodites, meaning that a given colony will contain both male and female reproductive parts during the spawning season; however, an individual colony or clone will not produce viable offspring. The spawning season for elkhorn and staghorn corals is relatively short, with gametes released on only a few nights during July, August, or September. In most populations, spawning is synchronous after the full moon during any of these 3 months. Larger colonies of elkhorn and staghorn corals have much higher fecundity rates (Soong and Lang, 1992).

In elkhorn and staghorn corals, fertilization and development is exclusively external. Embryonic development culminates with the development of planktonic larvae called planulae. Little is known concerning the settlement patterns of planula of elkhorn and staghorn corals. In general, upon proper stimulation, coral larvae, whether released from parental colonies or developed in the water column external to the parental colonies (like Acropora spp.), settle and metamorphose on appropriate substrates. Like most corals, elkhorn and staghorn corals require hard, consolidated substrate, including attached, dead coral skeleton, for their larvae to settle. Unlike most other coral larvae, elkhorn (and presumably staghorn) planulae appear to prefer settling on upper, exposed surfaces, rather than in dark, cryptic ones, at least in a laboratory setting (Szmant and Miller, 2005).

Coral planula larvae experience considerable mortality (90 percent or more) from predation or other factors prior to settlement and metamorphosis (Goreau et al., 1981). Because newly settled corals barely protrude above the substrate, juveniles need to reach a certain size to reduce damage or mortality from impacts such as grazing, sediment burial, and algal overgrowth. It is at this size
(approximately 1 cm in diameter) and this age (approximately 1 year) that a settled individual can be considered to have recruited into the population. Recent studies examining early survivorship indicated that lab cultured elkhorn coral settled onto experimental limestone plates and placed in the field had substantially higher survivorship than another spawning coral species, Montastraea faveolata, and similar survivorship to brooding coral species (species that retain developing larvae within the parent polyp until an advanced stage) over the first 9 months following settlement (Szmant and Miller, 2005). This pattern corresponds to the size of planulae; elkhorn coral eggs and larvae are much larger than those of Montastraea spp. Overall, older recruits (i.e., those that survive to a size where they are visible to the human eye, probably 1 to 2 years postsettlement) of Acropora spp. appear to have similar growth and postsettlement mortality rates observed in other coral species.

Studies of Acropora spp. sexual recruitment from across the Caribbean reveal two problematic patterns: (1) low juvenile densities relative to other coral species; and (2) low juvenile densities relative to the commonness of adults (Porter, 1987). This suggests that the composition of the adult population is based upon variable recruitment. To date, the settlement rates for Acropora spp. have not been quantified.

Few data on the genetic population structure of elkhorn and staghorn corals exist; however, due to recent advances in technology, the genetic population structure of the current, depleted populations are beginning to be characterized. Baums et al. (2005) examined the genetic exchange in elkhorn coral by sampling and genotyping colonies from eleven locations throughout its geographic range using microsatellite markers. Results indicate that elkhorn populations in the eastern Caribbean (St. Vincent and the Grenadines, U.S.V.I., Curacao, and Bonaire) have experienced little or no genetic exchange with populations in the western Caribbean (Bahamas, Florida, Mexico, Panama, Navassa, and Mona Island). Mainland Puerto Rico is an area of mixing where elkhorn populations show genetic contribution from both regions, though it is more closely connected with the western Caribbean. Within these regions, the degree of larval exchange appears to be asymmetrical, with some locations being entirely selfrecruiting and some receiving immigrants from other locations within their region.

Vollmer and Palumbi (2007) examined multilocus sequence data from 276 colonies of staghorn coral spread across 22 populations from 9 regions in the Caribbean, Florida, and the Bahamas. Their data were consistent with the WesternEastern Caribbean subdivision observed in elkhorn coral populations by Baums et al. (2005). Additionally, the data indicated that regional populations of staghorn separated by greater than 500 km are genetically differentiated and that gene flow across the greater Caribbean is low in staghorn coral. This is consistent with studies conducted on other Caribbean corals showing that gene flow is restricted at spatial scales over 500 km (Fukami et al., 2004; Baums et al., 2005; Brazeau et al., 2005). Furthermore, finescale genetic differences were observed among reefs separated by as little as 2 km, suggesting that gene flow in staghorn corals may be limited over much smaller spatial scales (Vollmer and Palumbi, 2007).

Both acroporid population genetics studies suggest that no population is more or less significant to the status of the species. Staghorn coral populations on one reef exhibit limited ability to seed another population separated by large distances. Elkhorn coral populations are genetically related over larger geographic distances; however, because sexual recruitment levels are extremely low, re seeding potential over long distances is also minimal. This regional population structure suggests that conservation should be implemented at local to regional scales because relying on longdistance larval dispersal as a means of recovery may be unreliable and infeasible. Therefore, protecting source populations, in relatively close proximity to each other (<500 km), is likely the more effective conservation alternative (Vollmer and Palumbi, 2007).

Elkhorn and staghorn corals, like most coral species, also reproduce asexually. Asexual reproduction involves fragmentation, wherein colony pieces or fragments break from a larger colony and re attach to consolidated, hard substrate to form a new colony. [[Page 72212]]
Reattachment occurs when: (1) live coral tissue on the fragment overgrows suitable substrate where it touches after falling; or (2) encrusting organisms settle on the dead basal areas of the fragment and cement it to the adjacent substrate (Tunnicliffe, 1981). Fragmentation results in multiple colonies (ramets) that are genetically identical, while sexual reproduction results in the creation of new genotypes (genets). Fragmentation is the most common means of forming new elkhorn and staghorn coral colonies in most populations and plays a major role in maintaining local populations when sexual recruitment is limited. The larger size of fragments compared to planulae may result in higher survivorship after recruitment (Jackson, 1977, as cited by Lirman, 2000). Also, unlike sexual reproduction, which is restricted seasonally for elkhorn coral (Szmant, 1986, as cited by Lirman, 2000), fragmentation can take place yearround.

Summary of Comments and Responses

We requested comments on the proposed rule to designate critical habitat for elkhorn and staghorn corals (73 FR 6895; February 6, 2008). To facilitate public participation, the proposed rule was made 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 impacts report supporting NMFS' conclusions under Section 4(b)(2) of the ESA was posted. We obtained independent peer review of both the scientific information and of the Draft 4(b)(2) Report (NMFS, 2007) that supported the proposed rule, and we incorporated the peer review comments prior to dissemination of the proposed rule. Four public hearings were held on the following dates and in the following locations:

1. Tuesday, March 4, 2008, Dania Beach, Florida.

2. Wednesday, March 5, 2008, Marathon, Florida.

3. Tuesday, March 11, 2008, St. Thomas, U.S.V.I./Simulcast Location in Kingshill, St. Croix, U.S.V.I.

4. Wednesday, March 12, 2008, Rio Piedras, Puerto Rico.

We have considered all public comments, and those that are germane to the proposed designation are addressed in the following summary. We have assigned comments to major issue categories and, where appropriate, have combined similar comments.

Comments on the Conservation Goal of the Designation

Comment 1: One commenter suggested that the conservation goal of the critical habitat designation should include survival to juvenile sizes.

Response: We stated in the proposed designation that the essential feature supports successful larval settlement, recruitment, and reattachment of fragments. The species' larvae and newly settled spat are microscopic. It takes approximately 1 year from the time of settlement for the recruit to become visible to the unaided human eye. It is at this point that we can conclude that the offspring has recruited into the population. Therefore, the habitat must be suitable to allow for the offspring to reach this size. It is unclear what the commenter specifically considers as a juvenile, thus we clarify that the conservation goal does include survival to recruitment.

Comment 2: One commenter suggested that we do not know what caused the decline of the species; therefore, we cannot identify the essential feature for elkhorn and staghorn corals. Another commenter questioned the utility of critical habitat, given the seemingly unresolved major threats to the species.

Response: The status review, listing process, and supporting literature have identified several causes of the decline of the species. We determined that disease, temperatureinduced bleaching, and hurricanes are the major threats to the species. The ESA and our regulations for designating critical habitat (50 CFR 424) specify that we focus on the essential physical or biological features to support the species' conservation. We determined that the identified essential feature of suitable settlement and reattachment substrate will support the key conservation objective for both species of facilitating increased incidence of successful sexual and asexual reproduction.

Comment 3: One commenter said that, although we identified the conservation goal of critical habitat to be the enhancement of sexual and asexual recruitment, our rule focuses on sexual recruitment.

Response: We determined, based on the species' natural history and the threats facing them, that facilitating increased incidence of successful reproduction, both sexual and asexual, is the key objective to the conservation of these species. We stated in the proposed rule that the feature supporting this objective was `` substrate of suitable quality and availability to support successful larval settlement, recruitment, and reattachment of fragments.'' We realize that the placement of the conjunction ``and'' may have misled the reader that the conservation objective did not support the recruitment of fragments. We are revising the definition of the feature that supports this objective to clarify this point. The feature is now defined as substrate of suitable quality and availability to support successful larval settlement and recruitment and the reattachment and recruitment of fragments. Sexual recruits and asexual recruits require the same feature to allow for settlement or reattachment, respectively. Therefore, the designation does not focus on sexual recruitment alone; rather, we state that increasing the incidence of both modes of reproduction is essential to the conservation of the species. Comments on the Definition of the Essential Feature

Comment 4: One commenter stated we failed to appropriately define ``consolidated hardbottom'' in our definition of the essential feature. A second commenter stated that we should not use the term hardbottom, rather the more appropriate term would be hard substrate.

Response: We acknowledge the need to define these terms precisely as there are several definitions of the term hardbottom. The established definition of hardbottom for the NOAA Coral Reef Conservation Program is substrate formed by the deposition of calcium carbonate by reef building corals and other organisms, or existing as bedrock or volcanic rock usually of minimal relief (http:// www.coris.noaa.gov/glossary). This definition is more restrictive than what we intended for this designation; so we are revising the term ``hardbottom'' to ``hard substrate,'' as suggested by the second commenter, to be inclusive of all the suitable substrate within the designation that is essential to the conservation of the species. We are retaining the term ``consolidated'' in the definition of the essential feature because the hard substrate must be stable to support the conservation objective. A disaggregated hard substrate, such as loose rubble, which can become mobilized and abrade the recruits, would not be of suitable quality.

Comment 5: One commenter stated we needed to clarify that absence of macroalgal cover in our definition of ``suitable substrate'' does not mean absence of crustose coralline algae (CCA), but refers to macroalgae and turf algae.

[[Page 72213]]

Response: The commenter is correct: we are not referring to CCA in this instance. Further, as we discussed in the proposed rule, studies have shown that larvae tend to prefer substrate covered with CCA for settlement. The commenter also correctly pointed out that not only fleshy macroalgae, but also turf algae, prevent the settlement of larvae and the reattachment of fragments. Therefore, we are adding the word ``turf'' to the definition of the essential feature.

Comment 6: Several commenters stated that no reefs exist without macroalgae and sediment; thus no reef would meet the identified definition of critical habitat. One commenter added that conditions change over time and we should add the word ``persistent'' before ``fleshy macroalgae''.

Response: Coral reef ecosystems are a mosaic of several different substrate types, including consolidated hard substrate, macroalgae, unconsolidated sediment, and seagrass. Although few reefs exist that are wholly lacking in some macroalgae or sediment cover, at a scale appropriate to a coral larva or coral fragment, a reef must contain available hard substrate for the settlement, attachment, and recruitment. Without the available substrate, the area would cease to be a coral reef because reef accretion would not be possible. The identified essential feature is contained within the specific areas identified as critical habitat. It is not necessary for the entire area or even entire reef to be lacking in macroalgae to designate it as critical habitat.

Regarding the persistence of the essential feature, we acknowledge that conditions within the reef ecosystem may change over time. However, regardless of the persistence of the macroalgae, if the substrate is covered with macroalgae at the time of potential settlement, reattachment, and recruitment, the substrate would not be of suitable availability to support the conservation objective. Thus we are not revising the definition of the essential feature to include the word ``persistent.

Comment 7: One commenter requested reef covered with macroalgae not be exempted from critical habitat.

Response: Reefs that contain macroalgae are not exempted from critical habitat. While neither coral larvae nor coral fragments can attach to substrate that is covered with macroalgae, and substrate covered with macroalgae does not provide substrate of suitable availability to support the conservation of the species, when these areas are part of the coral reef ecosystem meeting the definition of critical habitat (which as explained above consists of a mosaic of several different substrate types, including consolidated hard substrate, macroalgae, unconsolidated sediment, and seagrass), they are not exempted from the designation.

Comment 8: One commenter stated that parrotfish, other herbivorous fishes, and longspined sea urchin are biological features essential to the conservation of listed corals (i.e., essential features) because these herbivores reduce the abundance of macroalgae through grazing.

Response: In the proposed rule, we acknowledged that the shift in benthic community structure from the dominance of stony corals to fleshy algae on Caribbean coral reefs is generally attributed to the greater persistence of fleshy macroalgae under reduced grazing regimes due to human overexploitation of herbivorous fishes (Hughes, 1994) and the regional mass mortality of the herbivorous longspined sea urchin in 198384. However, the herbivores themselves are not the essential feature for elkhorn and staghorn corals. Rather, herbivores mediate the availability of the essential feature, similar to the effect nutrients have on the growth of macroalgae.

Comment 9: One commenter suggested ``consolidated hardbottom or dead coral skeletons exposed to sunlight, free from sediment, not preempted by other attached organisms, and within 30 m of the water surface'' as an alternate way to define the essential feature to make the rule more easily understood.

Response: We believe that our definition encompasses the concepts in the suggested alternative definition. We do not explicitly state that the substrate must be exposed to sunlight, because only artificial structures (e.g., docks or bridges) would preempt the transmission of sunlight to the substrate, given the shallow depths of the areas included in the designation. As discussed in the response to Comment 13, existing federally authorized or permitted manmade structures do not provide the essential feature. Thus, all natural consolidated hard substrate in depths less than 30 m are likely exposed to some sunlight. We define the essential feature as being free from fleshy or turf macroalgae cover, rather than all attached organisms because algae in excessive abundances preempts larva and fragments from attachment and recruitment. No other species is known to be susceptible to proliferation that results in the preemption of substrate. Other reef organisms are naturally occurring and do not necessarily interfere with settlement, recruitment, or reattachment of elkhorn and staghorn corals. Therefore, we believe our definition is sufficient to describe the essential feature for elkhorn and staghorn corals' conservation.

Comment 10: Two commenters requested the essential feature also include any habitat that could be recovered or rehabilitated.

Response: ESA Section 4(a)(3)(i) defines critical habitat, in part, as occupied areas that contain features essential to a species' conservation. We do not have the authority to designate areas where features may exist in the future once habitat is recovered or rehabilitated.

Comment 11: Several commenters stated that the proposed designation fails to account for essential features other than suitable substrate and specifically suggested that we add ``suitable water quality and temperature'' as essential features. Some of these commenters pointed to statements in the Status Review for the two corals that noted these species' need for ``relatively clear, wellcirculated water,'' ``sunlight for nourishment,'' ``optimal water temperature,'' and ``near oceanic salinities.'' Some of the commenters went on to state that the combined stresses of warmer temperatures, rising sea levels, and ocean acidification should be considered as part of the corals' need for good water quality in the critical habitat designation.

Response: We stated in the Status Review that the species' general environmental requirements are those summarized by the commenter. As stated in the proposed critical habitat rule, other than the substrate feature, we determined that no other facet of the corals' environment is appropriate to include as a basis for the critical habitat designation. Rather, we determined that water temperature and aspects of water quality are more appropriately viewed as sources of impacts or stressors that can harm the corals directly. For example, the corals can survive a range of water temperatures, and they exhibit stress at temperatures above and below this range. Similarly, corals exist and function within a range of oceanic acidity levels; if the water becomes too acidic or too alkaline, conditions are unsuitable for secretion of an aragonitic skeleton. However, for elkhorn and staghorn corals, we cannot identify any specific values, ranges, or thresholds for these or other water quality parameters that make them essential to the conservation of these corals. Consultations on whether a proposed action may affect ``suitable water quality or temperature'' would necessarily be limited to determining whether the
[[Page 72214]]
activity would cause harm to the corals, and only provides for analysis under the jeopardy prong. We therefore did not adopt the suggestion to include ``suitable water quality and temperature'' as essential features. Finally, we stated in the proposed rule that some environmental features are subsumed within the definition of the substrate essential feature. In this final rule, we define ``substrate of suitable quality and availability'' as ``consolidated hard substrate or dead coral skeleton that is free from fleshy or turf macroalgae cover and sediment cover.'' Substrate free from macroalgae cover and sediment cover would encompass water quality sufficiently free of nutrients and sediments. Therefore, Federal activities that impact water quality by increasing nutrients or sediments may affect the essential substrate feature, and would require ESA section 7 consultation.

Comment 12: One commenter stated that, in identifying the example list of existing manmade structures that do not provide the essential feature, the proposed rule lacked clarity in its description of maintained channels. The commenter requested that we provide an adequate description of what is considered to be a maintained channel (e.g., would it include channel floor, channel walls and any authorized structures associated with the channel like jetties and groins?).

Response: In identifying existing manmade structures that do not provide the essential feature essential to the corals' conservation, our intention was to inform the public that Federal actions, or the effects thereof, limited to these areas would not trigger section 7 consultation under the ESA, unless they may affect the species and/or the essential feature in adjacent critical habitat. In the preamble of this final rule, we are revising the language describing the structures to more clearly reflect our intention (see Specific Areas Within the Geographical Area Occupied by the Species). The statement referring to these structures has been revised to: ``All existing (meaning constructed at the time of this critical habitat designation) Federally authorized or permitted manmade structures such as aidstonavigation (ATONs), artificial reefs, boat ramps, docks, pilings, maintained channels, or marinas do not provide the essential feature that is essential to the species' conservation.'' To further inform the public, we are specifically not including as part of the critical habitat all existing federally authorized navigation channels and harbors because they do not provide the essential feature.

Comment 13: One commenter requested that we add regulatory language to the critical habitat designation to specifically list those natural and artificial features that do not provide the essential feature.

Response: In the regulatory text, we define the essential feature for elkhorn and staghorn corals as substrate of suitable quality and availability to support larval settlement and recruitment, and reattachment and recruitment of asexual fragments. ``Substrate of suitable quality and availability'' is defined as natural consolidated hard substrate or dead coral skeleton that is free from fleshy or turf macroalgae cover and sediment cover. We believe this definition is precise enough that natural and artificial features that do not constitute the essential feature are plainly discernable. This type of information is included in the preamble to this final rule to provide context and explanation of the features that do and do not provide the essential feature, but is not intended to be exhaustive, as that would not be practicable.

Comments on the Data Supporting the Designation

Comment 14: Two commenters submitted data containing the locations of occurrences of the species in Puerto Rico and the U.S.V.I.

Response: We appreciate the additional data and have referenced it in the preamble of the designation in the appropriate section. However, the data do not change the geographical range occupied by the species. Further, the data do not change the designation of the critical habitat areas around Puerto Rico and the U.S.V.I.

Comment 15: Two commenters stated we should closely scrutinize the quality of data giving rise to the geographic extent of occupied areas. The commenters were specifically interested in the data collection methodologies as well as the number and location of elkhorn or staghorn coral documented in the waters north of Boca Raton.

Response: The data that we used to identify the occupied area of the species has come from various sources, including literature, researchers, resource agencies, and local divers. Those data submitted by local divers have all included photos of the species and a latitude and longitude of the location where the species was found. We are confident that those who have submitted data are proficient enough in species identification, as evidenced by the photos, and use of a geographic positioning system. Further, the data from the northernmost locations of the species have been submitted by a county natural resource agency employee and an environmental consultant. Though there are few data from the northernmost portion of the species' ranges, this is likely due to the relatively recent expansion of reef research into this geographic area. We believe the quality of the data that we have used to identify the area occupied by the species is the best available and sufficient for the purposes of designation.

Comment 16: One commenter questioned the potential errors in geographical information system (GIS) data developed using aerial photos from a onetime snapshot at an acre pixel scale. The commenter also questioned how we will address presence/absence of the essential feature when it comes time for a consultation.

Response: We fully acknowledge that the GIS data may be imperfect due to the age and methods of collection, but it is the best available. We relied on the data to identify discrete areas that contain the essential feature interspersed among the other natural features of the coral reef ecosystem, including seagrass, macroalgae, and
unconsolidated sediment. At the time of consultation, the Federal agency may use all existing data or choose to collect new data to determine whether its action may affect the essential feature. Comments on the Boundaries of the Designation

Comment 17: We received several comments suggesting that, by designating the north boundary of the Florida area at the boundary between Martin and Palm Beach counties, we included areas outside of the historic or current range for elkhorn and staghorn coral and areas that do not provide for the conservation of the species.

Response: We acknowledge that the northern extent of the ranges of these species is south of the northern Palm Beach County line and, upon additional examination, were able to more accurately designate the northern boundary of the Florida area at Boynton Inlet, Palm Beach County, at 26[deg] 32' 42.5'' N. We are modifying the northern boundary accordingly in this final rule. We have no knowledge of either species of Acropora historically or presently occurring north of this boundary.

Comment 18: Several commenters stated that these corals do not grow in the intertidal zone and requested that we consider mean low water (MLW) as the shoreward boundary rather than mean high water (MHW).

Response: We acknowledge that these species do not grow in the intertidal
[[Page 72215]]
zone. The territorial sea baseline is defined at 33 CFR 2.20 as ``the mean low water line along the coast of the United States'', which further notes that charts depicting the baseline are available for examination. Therefore, we are changing the shoreward boundary to MLW in this final rule.

Comment 19: Two commenters stated that the nearshore surf zones of Palm Beach, Broward, and MiamiDade Counties are areas with high sediment movement, suspension, and deposition levels. Hard bottom areas found within these nearshore surf zones are ephemeral in nature and are frequently covered by sand, thus not meeting the definition of the proposed essential feature. The commenter requested the shoreward boundary of the Florida area be moved offshore in Palm Beach, Broward, and MiamiDade Counties to at least the 15 meter depth contour.

Response: Conditions along the east coast of Florida in the nearshore surf zone are not conducive for the identified conservation goal of increased sexual and asexual recruitment. The hydrodynamic conditions in this portion of the species' range are very different from those further south in Florida and around islands in the Caribbean, like Puerto Rico and the U.S.V.I. Additionally, upon additional review of the current and historic occurrence data for the two species along the east coast of Florida, there were no occurrences in water less than 6 feet (1.8 m) deep. Therefore, in this final rule, we are changing the shoreward boundary for the Florida area to the 6ft (1.8 m) contour from the north boundary at Boynton Inlet south to Government Cut, where it moves inshore to MLW. Government Cut was identified as the southernmost boundary where there were no occurrences of either species in less than 6 feet (1.8 m) of water. There are occurrences of the species in less than 6 feet (1.8 m) of water south of Government Cut, thus indicating that hydrodynamic conditions are suitable for recruitment in shallower waters.

Comment 20: One commenter stated that the species does not occur in the Gulf of Mexico and suggested the boundary of the Florida area be changed to the South Atlantic Fishery Management Council (SAFMC) boundary.

Response: We acknowledge that the SAFMC boundary is the appropriate boundary in the Florida area given the occupied range of the coral. Generally, the SAFMC boundary separates the Gulf of Mexico from the Atlantic Ocean. In this final rule, we are changing the northern boundary of the Florida Keys portion of the Florida area to coincide with the boundary between the SAFMC boundary as defined at 50 CFR 600.105(c).

Comment 21: One commenter stated that, based on development trends and the associated anthropogenicinduced impacts, it does not appear reasonable to designate critical habitat within 100 yards (91.4 m) of any platted and improved subdivision with roads, utilities, improved shorelines, etc.

Response: The commenter does not provide a biological basis for the comment and does not describe how the area would not provide for the conservation of the species. Rather, if the ``anthropogenicinduced impacts'' the commenter identified could result in impacts to the essential feature and there is a Federal nexus, the species could benefit from consultation with us to identify ways to reduce the impact to the essential feature.

Comment 22: One commenter stated that Acropora spp. have not been documented any closer than approximately 200 yards (183 m) from the shore on the Atlantic Ocean side in the Upper and Middle Florida Keys.

Response: The commenter is correct that we do not have specific data of the species occurring within the distance stated. While that area has not been surveyed specifically for Acropora spp., the area is considered occupied given the range of this species and because the habitat may be conducive for the species. Staghorn coral particularly is often found in the back reef and lagoonal areas of the coral reef ecosystem, the habitat that occurs in the stated distance from shore. Therefore, we have no basis to designate a different shoreward boundary within the Upper and Middle Florida Keys.

Comment 23: One commenter stated that there have been no documented acroporid colonies within any portion of Biscayne Bay, including residential canal systems or tributaries to Biscayne Bay or the Intracoastal Waterway.

Response: Per textual description in the proposed rule and the correction to the maps in the proposed rule (73 FR 12068; March 6, 2008), neither Biscayne Bay nor the Intracoastal Waterway is within the proposed critical habitat.

Comment 24: Two commenters stated that Monroe County and MiamiDade County typically do not appear to be suitable for colonization of Acropora spp. within the residential canals and manmade basins due to poor water quality. These systems usually exhibit high turbidity, suspended sediments, low water clarity, poor flushing/circulation, and nutrient/freshwater influxes from upland runoff.

Response: As stated in this rule, all existing federally authorized or permitted manmade structures, including canals and marinas, do not provide the essential feature; and therefore, are not included in the designation.

Comment 25: One commenter suggested that we more clearly map the designated area's inland boundaries as few people are familiar with the COLREGS line. Another commenter requested that we define the COLREGS line.

Response: The COLREGS line is defined as the lines of demarcation delineating those waters upon which mariners shall comply with the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS) and those waters upon which mariners shall comply with the Inland Navigation Rules. The waters inside of the lines are Inland Rules waters. The waters outside the lines are COLREGS waters. So, in other words, the COLREGS line separates inland from marine waters. We used the COLREGS line because it is depicted on all navigational charts and defined at 33 CFR Part 80. Last, the overview maps provided in the rule are provided for general guidance purposes only, and not as a definitive source for determining critical habitat boundaries.

Comment 26: One commenter stated that the occurrence of the essential feature within the Dry Tortugas (protected by the National Park Service) is questionable as shown by its geological history.

Response: The species have both been documented within the Dry Tortugas, and the essential feature is present. Therefore, the area remains within the designation.

Comment 27: One commenter questioned why the area between the westernmost Florida Keys and the Dry Tortugas was included in the designation. Specifically, the commenter provided information on the area around the Marquesas Keys, which demonstrated that the species do not presently occur, and have never been present in this area, based on the geologic record.

Response: We appreciate the commenter providing us with this information. Additionally, upon further review of the NOAA Biogeography Team's Benthic Habitats of the Florida Keys data, there are very few, small areas that contain the essential feature between Boca Grande Key (approximately 12 miles (19.3 km) west of Key West) and the Dry Tortugas. However, based on the information provided by the commenter, these areas currently do not, and have never,
[[Page 72216]]
supported the species. The intent of critical habitat is to provide for the conservation of the species. Based on the data we had at the time of the proposed designation, we included the area between Boca Grande Key and the Dry Tortugas because we believed the area contained the essential feature and would provide for the conservation of the species. With the new information we received and reexamination of information used in developing the proposed rule, we determined that this area does not contain the feature essential to the conservation of the species. Therefore, we are not designating this area as critical habitat in this final rule. The western boundary of the Florida Keys portion of the Florida area will terminate at 82 W longitude. The Dry Tortugas portion of the Florida area will be MLW to the 98ft (30 m) contour with an eastern boundary of 82 45' W longitude. A full description of the modified Florida area is provided in the preamble and regulatory language of this rule.

Comment 28: Several commenters expressed concern about the areas within the Florida area of the designation that do not contain the essential feature and thus are unsuitable to provide for the conservation of the species. A few commenters requested that we specifically survey and more finely map locations of the essential feature.

Response: The essential feature can be found unevenly dispersed throughout the Florida area due to trends in macroalgae coverage and naturally occurring unconsolidated sediment and seagrasses dispersed within the reef ecosystem. However, as described in the response to Comment 27, we are not designating a large portion of the proposed Florida area based on new information that the area does not contain the essential feature. Within the remainder of the Florida area, larger numbers of smaller specific areas could not be identified because the submerged nature of the essential feature, the limits of available information on the distribution of the essential feature, and limits on mapping methodologies make it infeasible to define the specific areas containing the essential feature more finely than described herein. The ESA requires us to designate critical habitat to the maximum extent prudent and determinable, based on the best information available.

Comment 29: One commenter requested that we identify all roads and bridges within the textual description and on the maps for critical habitat, as has been done for other terrestrial species. Further, the same commenter requested that bridges be added to the list of existing manmade structures that do not provide the essential feature.

Response: We have designated critical habitat using known boundaries that are applicable to the marine ecosystem in which the species occur. We do not believe that it would be more informative to the public to identify roads and bridges on maps of the critical habitat areas. While we agree that bridges do not provide the essential feature, the list of existing manmade structures that do not provide the essential feature is not exhaustive; it is provided to give the public examples of the types of structures to which we are referring.

Comment 30: One commenter stated that we should designate all areas occupied by elkhorn and staghorn corals in Florida especially Florida Bay as critical habitat. The commenter also expressed concern about the quality of water entering Florida Bay from the Everglades, and stated that including Florida Bay in the critical habitat designation would benefit corals living there.

Response: As stated in the proposed rule, the critical habitat designation for threatened corals focuses on substrate of suitable quality and availability to support successful sexual and asexual reproduction of the two corals. While hardbottom does exist within Florida Bay, neither elkhorn nor staghorn coral has ever been observed or documented living in this area, making it unlikely that the larvae or fragments of either coral species would settle on or reattach to hardbottom located within Florida Bay. Therefore, we do not believe that any hard substrate in Florida Bay would contribute to the conservation objective for this designation facilitating increased successful reproduction.

Comment 31: One commenter recommended that the designation be limited and exclude ``areas with documented historical low densities, or documented current and historical absence of the species and essential feature''. The commenter provided specific references to support the comment (Goenaga and Cintron, 1979; ``Benthic Habitats of Puerto Rico and the U.S. Virgin Islands'' by NOAA's Biogeography Program; and two maps of occurrences of Acropora in Miami Dade and Monroe Counties).

Response: As stated in the response to Comment 27, we reevaluated the NOAA benthic characterization data, which supported our identification of areas that contain the essential feature. The reevaluation yielded the modification of the Florida critical habitat area based on the documented current and historical absence of the species or essential feature, or both. The data contained in the two maps provided by the commenter were considered in the proposed rule and did not support the identification of any small specific areas that do not contain the essential feature. The reevaluation of the data did not support revision of the Puerto Rico or U.S.V.I. areas. As discussed in the Geographical Areas Occupied by the Species section of this rule, both species have been documented to occur, historically and presently, surrounding the main island and offshore cays within these areas. Goenaga and Cintron's paper is an inventory of the Puerto Rican reefs from the late 1970s. Although we have considered the information provided by the commenter, it does not support the identification of areas that do not contain the essential feature; thus, we are not revising this final rule on the basis of this information.

Comment 32: Two commenters requested exclusions and exemptions for the Port of Key West to provide for normal channel and harbor activities. A buffer around the Port was also requested.

Response: As stated in the response to Comment 13, all existing federally authorized and permitted navigation channels and harbors, which include the Port of Key West, are not included in the critical habitat, because they do not contain the essential feature. The ESA does not allow for the identification of buffers around areas not included per se. Areas that do not contain the essential feature do not meet the definition of critical habitat and therefore may not be designated. Also, areas may be excluded on the basis of economic, national security, or other relevant impacts. The area surrounding the Port of Key West meets the definition of critical habitat, and we did not identify any basis for exclusion of this area.

Comment 33: One commenter stated that we did not mention the offshore islands and cays in the U.S.V.I. as being part of the designation.

Response: As stated in the regulatory language in the proposed rule and this rule, all areas from MLW to the 98ft (30 m) contour within the U.S.V.I. are included in the designation, which would include the offshore cays and islands.

Comment 34: One commenter requested buffer zones for critical habitat in order to avoid potential indirect impacts for any kind of project that would be developed very close to those critical habitats. A second commenter requested that we identify
[[Page 72217]]
the maximum distance from critical habitat a project may be to avoid direct or secondary impacts to the essential feature.

Response: While the ESA does not provide for the identification of buffer zones around critical habitat, Federal agencies authorizing, funding, or carrying out activities that occur outside critical habitat, regardless of distance from critical habitat, that may have effects to the essential feature within critical habitat must conduct an ESA section 7 consultation. Conversely, actions that have no direct or indirect effects on the essential feature even actions within or immediately adjacent to critical habitat would not require consultation based on critical habitat.

Comment 35: Several commenters questioned our assertion that we were only designating areas that met the definition of occupied critical habitat, because there are other substrate types interspersed with the essential feature within the designation and because there are particular sites where the corals are not present. Another commenter questioned our interpretation of ``geographical area occupied'' to mean the range of a species at the time of listing.

Response: We have long interpreted ``geographical area occupied'' in the definition of critical habitat to mean the range of the species at the time of listing (45 FR 13011; February 27, 1980). The term ``specific areas'' in the definition of critical habitat refers to areas on which the feature essential to a species' conservation are found. The designated critical habitat areas fall within the geographical area occupied by both species, and the essential feature is found on these areas. We have not identified any areas outside the geographical area occupied by the species that are essential for their conservation. Therefore, we did not designate any unoccupied areas for elkhorn and staghorn corals.

Comment 36: One commenter suggested that we designate critical habitat to allow for shifts in distribution of the species and adaptation in response to global warming.

Response: The ESA does not provide for designation of critical habitat based upon speculation about expansions into habitats or ranges never occupied by the species. While the definition of critical habitat does include areas outside the geographical area occupied by the species at the time of listing, the habitat would have to be essential to the conservation of the species. As determined through the listing of elkhorn and staghorn corals, there has been no range constriction for either species. The species currently occupy their entire historical ranges, only in lower abundances. There is no evidence that any areas outside the historical ranges of the species have suitable conditions to support the species.
Comments on ESA Section 7 Consultations and Economic Impacts

Comment 37: One commenter stated that the rule erroneously mentions only formal consultations but does not analyze informal consultations, which impact Federal agencies also.

Response: In the 4(b)(2) Report, we base our impact analysis on consultations conducted in the last 10 years that occurred in the designated areas and that may affect the designated critical habitat, regardless of whether the consultation was concluded formally or informally. We then assumed that all future consultations would be formal, acknowledging that assumption would result in an overestimation of impacts. Therefore, we did not omit informal consultations from the impacts assessment.

Comment 38: One commenter requested we specifically identify other regulations that address modifications, including those pertaining to water quality, that may be required to avoid destroying or adversely modifying the essential feature and give examples of when compliance with these other regulations would eliminate the need for ESA section 7 consultation.

Response: In our Draft 4(b)(2) Report, we identified potential project modifications that may be required to avoid destruction or adverse modification of critical habitat. Several of the potential project modifications, such as turbidity controls and conditions monitoring, are currently required by other existing regulations, such as a Clean Water Act (ESA) section 404 permit. We intended this example to illustrate that the cost of implementing these project modifications would not be solely attributable to the critical habitat designation; it was not our intention to suggest that ESA section 7 consultation would not be required if the project modification were required by another regulation. The ESA requires all Federal agencies to consult on their actions that may affect critical habitat regardless of any other regulations that may be applicable to the action. It is possible that an action may be modified by another regulatory requirement that results in removing all possible effects to critical habitat. In this case, ESA section 7 consultation would not be necessary. We have not evaluated every water quality standard or National Pollution Discharge Elimination System (NPDES) permit to determine the effects of those Federal actions on critical habitat. It is the responsibility of the Federal action agency to determine the effects of its action on listed species and designated critical habitat. Therefore, we cannot identify specific water quality standards or NPDES conditions that do not affect critical habitat.

Comment 39: The U.S. Army Corps of Engineers (COE) commented that we underestimated the number of consultations resulting from COE regulatory projects that may affect critical habitat.

Response: During discussions with the COE as we developed this final rule, we clarified that projects occurring within (and whose effects are limited to) existing Federally authorized or permitted channels or harbors would not result in consultation because these areas do not contain the essential feature. As a result of these discussions, we continue to rely on the consultation data provided in the draft 4(b)(2) report and use this information in the impacts analysis in the final 4(b)(2) report.

Comment 40: The COE stated that we underestimated the number of Operation and Maintenance Dredging Program consultations due to the existence of the Biological Opinion on ``[t]he continued hopper dredging of channels and borrow areas in the southeastern United States,'' which covers all maintenance dredging of Federal channels with the use of a hopper dredge. The COE said that new individual consultations would be necessary for each maintenance event.

Response: The referenced Biological Opinion was captured in our database query and included in our impact analysis in the 4(b)(2) Report. The COE has reinitiated consultation with us for that action; therefore, the effects of all the events covered in that consultation will be considered in one consultation. The data we used included the projection of this consultation and did not underestimate the number of consultations. Moreover, as stated above, all federally authorized or permitted navigation channels are not included in the designation; thus the analysis in this reinitiated consultation will be limited to turbidity and sediment effects to areas adjacent to the channels that may contain the essential feature.

Comment 41: One commenter said our statement that ``no categories of Federal actions would require consultation in the future solely due to the critical habitat designation'' is incorrect. The commenter said that the
[[Page 72218]]

critical habitat designation is ``everywhere''.

Response: Our statement referred to categories of activities and not individual actions. We discussed this distinction at length in the Draft 4(b)(2) Report. The categories discussed in the 4(b)(2) Report were all determined to be capable of affecting both critical habitat and the corals themselves; activities that could adversely affect the corals would require consultation even if critical habitat were not designated.

Comment 42: One commenter questioned whether Federal agencies would have to consult on their actions if the species were present, but the project was not within the critical habitat designation.

Response: Yes, as discussed in the response to Comment 41, the responsibility for Federal agencies to consult on their actions that may affect the species initiated with the listing of the species on May 9, 2006. The species are listed wherever they occur, regardless of a critical habitat designation.

Comment 43: One commenter stated that our statement that Florida will be affected, but the Caribbean will be relatively unaffected, reflects the ignorance of the agency regarding Caribbean resources and the level of development in the islands. The commenter said the ignorance of the agency and those who wrote all documents related to this listing, not just the critical habitat rule, is further demonstrated by the statement that the rule will have little impact on dock construction because most dock construction takes place in canals. This may be the case for Florida, but the Caribbean does not have man made canals unless they are excavated in inland marinas in areas containing salt ponds, coral reefs, and seagrass beds.

Response: Our Draft 4(b)(2) Report used the best available data to estimate potential economic impacts resulting from the designation. Consultations on dock construction are captured in our data under the category of COEpermitted construction activities. The data from the last 10 years were: 235 consultations in Florida on COEpermitted construction activities; 75 consultations in Puerto Rico on COE permitted construction activities; and 25 consultations in the U.S.V.I on COEpermitted construction activities. These data indicate that Florida had more than twice the amount of consultations in the Caribbean; thus, the impacts to Florida from marine construction activities would be larger as a result of the designation.

We acknowledge the difference in the physical nature of the coast between Florida and the Caribbean. The Florida coastline is highly altered, and most dock construction occurs in manmade canals. Alternatively, the islands of Puerto Rico and the U.S.V.I. have a greater proportion of natural shoreline along which docks may be constructed. Further, dock construction projects are not likely to result in large impacts to critical habitat necessitating large project modifications due to: (1) the typically small action area of docks; (2) the preference for constructing docks in unconsolidated sediment to minimize the difficulty and cost of driving piles into consolidated rock; and (3) the relatively inexpensive measures to minimize impacts through essential feature avoidance and turbidity controls. Further, even given the differences in the physical nature of the shorelines, the impact of project modifications to dock construction projects due to the critical habitat designation in the Caribbean will not solely be the result of the critical habitat designation. The ESA listing and existing regulations, such as the CWA and MagnusonStevens Fishery Conservation and Management Act (MSA), would likely require the same avoidance and minimization measures for elkhorn and staghorn corals and other species of corals; thus, many of the costs would be coextensive with these regulations and not solely a result of the critical habitat designation.

Comment 44: One commenter stated that because we identified artificial reefs as an existing manmade structure that does not provide the essential feature, there may be an impact to projects that are required to construct artificial reefs for mitigation under the CWA regulatory programs. Further, the commenter objected to our conclusion that artificial reefs cannot serve as habitat for elkhorn and staghorn corals.

Response: The definition of critical habitat is ``the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.'' Because there is sufficient natural hardbottom existing to provide for the conservation of the species, artificial reefs are not essential to the conservation of the species. We identified artificial reefs in the list of existing manmade structures that do not provide the essential feature to inform the public that activities that would affect only artificial reefs would not require ESA section 7 consultation. However, that identification in no way states whether artificial reefs should or should not be prescribed as mitigation for a particular activity under the CWA or MSA.

Comment 45: One commenter requested that we ensure that the critical habitat designation does not unduly restrict recreational boating in the region. The commenter also requested that our economic analysis recognize that the economic value of coral reefs is only made possible by the preservation and promotion of public vessel access.

Response: Nothing in this rule or the 4(b)(2) Report states that boater access will be restricted within 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 ensure their actions are not likely to result in the 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 of vessels through or anchoring of vessels in areas designated as critical habitat is not prohibited.

The 4(b)(2) Report acknowledges the economic benefit coral reef associated tourism provides. The absolute value related to the boating component of that benefit can not be extrapolated from existing data. However, nothing in the rule or the 4(b)(2) Report is contrary to the supposition that recreational boating contributes to the economic benefit coral reefs provide.

Comment 46: One commenter stated that we should clarify our intentions with respect to second

FOR FURTHER INFORMATION CONTACT

Jennifer Moore or Sarah Heberling, NMFS, at the address above or at 7278245312; or Marta Nammack, NMFS, at 3017131401.

Top Searches

Popular Sites

Common CFR Searches