Final Environmental Impact Statement for the
Rulemaking of MMPA Incidental Take Regulations
NOTE: This is an extensive document comprised over 500 pages of
information. The Executive Summary is provided below.
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The Table of Contents for the Final EIS is provided below.
Purpose of the Proposed Action
The purpose of the proposed action is to analyze the feasibility of promulgating regulations in accordance with Section 101(a)(5)(A) (16 U.S.C. 1371(a)(5)(A)) of the Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. 1361-1407) that allow the Director of the Fish and Wildlife Service (Service), acting on behalf of the Secretary of the Interior, to authorize the incidental, unintentional take of small numbers of Florida manatees in specified areas as a result of government programs related to watercraft access and watercraft operations in the State of Florida for the next five years (2003 to 2008). Section 101(a)(5)(A) of the MMPA allows the issuance of such regulations, upon request, for periods of not more than five consecutive years for specified activities (other than commercial fishing) within specified geographic areas if the Service finds that the total taking during the specified period will have a negligible impact the species or stock. Where a negligible impact finding cannot be made, the Service must publish that finding and the basis for the finding (50 CFR 18.27(d)(4). The Service may make a negligible impact finding where mitigating measures will render the impact negligible that would not otherwise be negligible in the absence of these measures (50 CFR 18.27(d)(3)).
Need for the Proposed Action
The need for this action results from the fact that there currently is no authorization for the incidental, unintentional death, injury, or harassment of Florida manatees associated with watercraft access and use in Florida waters. Thus, there is a need to examine the issue of take of Florida manatees and determine where the incidental, unintentional take of manatees may be authorized.
The Florida manatee is listed as an endangered species under the Endangered Species Act (ESA) of 1973, as amended (87 Stat. 884; 16 U.S.C. 1531 et seq.). Both the MMPA and ESA prohibit the incidental take of Florida manatees in the course of otherwise lawful activities, unless authorized. These prohibitions have been in place since 1972 for the MMPA and 1973 for the ESA. Through section 7 of the ESA, the Service can authorize the incidental take of threatened and endangered species that are reasonably certain to occur as a result of Federal actions as long as the specific ESA requirements are met. However, if the listed species is a marine mammal, incidental take regulations under the MMPA must be in place before incidental take under the ESA can be authorized.
In Save the Manatee Club, et al. v. Ballard,et al., Civil No. 00-00076 (D.D.C.), several organizations and individuals filed suit against the Service and the U.S. Army Corps of Engineers alleging violations of the ESA, MMPA, National Environmental Policy Act (NEPA), and Administrative Procedures Act. Four groups representing development and boating interests intervened. Following negotiations, a Settlement Agreement was approved by the court on January 5, 2001. The preparation of this Environmental Impact Statement (EIS) and publication of a final MMPA incidental take determination in the Federal Register is required under the terms of the Settlement Agreement.
Trends in Florida Manatee Mortality
Since the 1980s, manatee mortality from all causes (human and non-human related) has increased steadily. Average annual mortality in the 1990s (228 individuals) was nearly twice that of the 1980s (118 individuals). This trend continued in 2002, when 305 manatee deaths were recorded, 95 of which were as a result of watercraft collisions, an all time record.
The Florida Manatee Recovery Plan, Third Revision (2001), states that the largest known human-related cause of manatee deaths is collisions with watercraft. Data collected during manatee carcass salvage operations in Florida confirm that since 1976, a total of 1,074 manatees (from a total carcass count of 4,326) died as a result of collisions with watercraft. Between 1976 and 2000, the total number of carcasses collected (i.e., deaths due to all causes) increased at a rate of 6.0 percent per year, while deaths caused by watercraft strikes increased by 7.2 percent per year. In 2000 and 2001, watercraft related deaths accounted for 29 percent and 25 percent, respectively, of the total number of known manatee deaths. During the past six years (1997 to 2002), watercraft related mortality has been the highest on record, with a range of 52 to 95 individuals per year. Approximately 75 percent of all watercraft related manatee mortality has occurred in 11 Florida counties: Brevard, Lee, Collier, Duval, Volusia, Broward, Palm Beach, Charlotte, Hillsborough, Citrus, and Sarasota (Florida Marine Research Institute Manatee Mortality Database 2000).
Based on the 2001 Statewide aerial synoptic survey, it is believed that the minimum population of the Florida manatee is 3,276 individuals. During the 1980s and mid-1990s some scientists believe the manatee population increased in size; however, if population growth rates level off and manatee mortality continues to increase, a decline in abundance is inevitable (Marine Mammal Commission Annual Report to Congress 2000). Because the manatee has a low reproductive rate, a decrease in adult survival due to watercraft collisions could contribute to a long-term population decline (O’Shea et al. 1985). It is believed that a one percent change in adult survival likely results in a corresponding change in the rate of population growth or decline (Marmontel et al. 1997).
Trends in Watercraft Usage in Florida Waters
Concurrent with the increase in watercraft related manatee mortality, human use of the waters of the southeastern United States has increased dramatically as a function of residential growth and increased visitation. The population of Florida has grown by 124 percent since 1970 (6.8 million to 15.2 million, U.S. Census Bureau) and is expected to exceed 18 million by 2010, and 20 million by the year 2020. According to a report by the Florida Office of Economic and Demographic Research (2000), it is expected that, by the year 2010, 13.7 million people will reside in the 35 coastal counties of Florida. Additionally, visitation to Florida has increased dramatically. It is expected that Florida will have 83 million visitors annually by the year 2020, up from 48.7 million visitors in 1998.
As a consequence of the increasing human population growth and visitation, the number of watercraft using Florida’s waters has steadily increased. In 2001, 943,611 vessels were registered in the State of Florida. This represents an increase of 42 percent since 1993. The Florida Department of Community Affairs estimates that between 300,000 and 400,000 boats registered in other States use Florida waters each year. Thus, with the projected increase in Florida’s human population, coupled with an increase in watercraft usage on Florida’s waters, interactions between boats and manatees are expected to significantly increase into the foreseeable future.
Activities That Affect Manatees
In the State of Florida, local, State and Federal agencies engage in a variety of activities related to watercraft that may affect manatees. Many of these activities relate to the use and regulation of watercraft operated in Florida waters accessible to manatees, including: (1) regulating boater behavior on the water (e.g., vessel registration and marine events); (2) authorizing construction of watercraft access facilities (marinas, docks, boat ramps); (3) funding construction of watercraft access facilities; (4) operating watercraft access facilities; and (5) operating watercraft.
The Service has determined that there are four separate stocks of manatees in Florida based on manatee demographics. The Service considered alternatives for incidental take rulemaking based on these four different stocks. Because the Southwest Stock appears to be decreasing such that MMPA incidental take could not be authorized at this time, the Service proposed a finding that expected take would have more than a negligible effect on this stock.
The range of alternatives considered in this Final EIS include the possibility that none of the stocks are candidates for negligible impact findings, that one of the stocks (Upper St. Johns River) is a potential candidate, that two stocks (Upper St. Johns River and Northwest) are potential candidates, and that three stocks (Upper St. Johns River, Northwest, and Atlantic) are potential candidates. Given this range of possibilities, and the time frame allotted for detailed analysis under the Settlement Agreement, we determined that evaluating an array of reasonable possibilities (e.g.. no stocks are candidates to three of four stocks are candidates for findings of negligible impact) is the most efficient means of understanding the impacts of any single possibility. Focusing on the two ends of likely outcomes allows meaningful analysis of any subset combination of possible findings since all effects have been analyzed and presented by stock. The alternatives that describe each end of the reasonable findings spectrum are examined in detail in this Final EIS as follows:
Alternative 1: No Action - A negative finding of negligible impact (impact exceeds negligible) in the Upper St. Johns River, Northwest, Atlantic, and Southwest stocks of the Florida manatee; and
Alternative 3: A finding of negligible impact in the Northwest, Upper St. Johns River, and Atlantic stocks, with mitigating measures for the Atlantic Stock, and a negative finding of negligible impact (impact exceeds negligible) for the Southwest Stock.
The Service considered two additional alternatives, which fit within the range of possibility selected for detailed analysis, but did not address them in detail, as follows:
Alternative 2: A finding of negligible impact only for the Northwest and Upper St. Johns River stocks; and
Alternative 7: A finding of negligible impact only for the Upper St. Johns River Stock.
The Service identified three additional alternatives, which were precluded at the time of the proposed finding due to manatee demographic trends and the proposed negative finding of negligible impact in the Southwest Stock:
Alternative 4: A finding of negligible impact only for the Northwest and Upper St. Johns River stocks, a proposed finding of negligible impact for the Atlantic Stock with mitigating measures, and a negative finding of negligible impact (impact exceeds negligible) for Tampa Bay area (a subset of the Southwest Stock);
Alternative 5: A finding of negligible impact for all four stocks as a result of government activities in Florida; and,
Alternative 6: A finding of negligible impact for all four stocks in Florida as a result of the direct regulation of individual boaters.
The four primary factors listed below were used for alternatives analysis:
(1) seeking an alternative which met the negligible impact standard of the MMPA;
(2) seeking the alternative which resulted in the least practicable impacts to manatees;
(3) seeking the alternative which resulted in the least practicable impacts to manatee habitat; and
(4) seeking an alternative which minimized socioeconomic impacts.
Alternative 3 was identified as our proposed action in the Draft EIS. Based on new scientific information, we are reevaluating that recommendation. Regardless of the alternative selected for implementation, we will finalize manatee population modeling with formal peer review and reconsider the promulgation of incidental take regulations, as appropriate. We will also continue to implement necessary manatee conservation measures throughout Florida, coordinate with all affected parties and encourage them to also implement conservation measures for the manatee.
The Service continues to review permit applications under section 7 of the ESA on a case-by-case basis, to determine which permits are reasonably certain to cause watercraft related incidental take of manatees. Section 7 determinations for permits, which are not reasonably certain to cause incidental take of manatees may be issued accordingly by the Corps that is the Federal agency responsible for the issuance of such permits. In some instances, permits may be found to be reasonably certain to cause incidental take of manatees, whereupon the Service will recommend permit denial in order to prevent unauthorized take of manatees from occurring.
As no incidental take would be authorized under Alternative 1 (No Action), this alternative would impose no incremental economic impacts to the economic baseline. Under the No Action Alternative, the Service and other agencies would continue their existing activities related to manatee conservation efforts. The coordination of Corps permitting and Service review under Section 7 of the Endangered Species Act, and related socioeconomic impacts, are expected to continue unchanged.
Alternative 3 would lead to a positive regional economic impact of between $0.7 million and $16.7 million due to an increase in the revenues of the marine recreation industry and $0.3 million due to an increase in the revenue of the marine construction industry, for a total positive regional economic impact of between $1 million and $17 million in year five of a proposed rule. Overall, the positive regional economic impact expected under Alternative 3 would reduce negative baseline regional impacts by eight to 31 percent.
Issues Raised by the Public
Beginning in January 2001, the Service held a series of meetings with the affected agencies to discuss the scope of government related activities and incidental take rulemaking. At the Manatee Population Ecology and Management Workshop in April 2002, the Service discussed the issue of incidental take rulemaking with scientists and managers involved in manatee research and conservation. On June 10, 2002, the Service published a notice in the Federal Register announcing our intent to prepare an EIS to evaluate the effects on manatees of a rulemaking to authorize incidental take; public comments were solicited. On November 14, 2002, the Service published a Proposed Rule in the Federal Register. In December 2002, the Service conducted seven public hearings throughout Florida.
In response to these notices, meetings, and public hearings, over 8,000 written comments were received. The majority of these comments related to manatee populations’ issues; NEPA, ESA and MMPA concerns; recommendations regarding the proposed determination of negligible impact under the MMPA; identification of information needs believed necessary to adequately address issues of concern; as well as socioeconomic and public involvement concerns. The Service has examined and fully considered all comments submitted by the public in developing this Final EIS.
Areas of Controversial/Unresolved Issues
The issue of how to reduce the current levels of watercraft related incidental take of manatees to acceptable levels remains controversial. It is important that the respective local, State, and Federal agencies with authority for watercraft access and watercraft operation in Florida waters partner together for the benefit of the manatee, the boating public, conservation organizations, marine industry, and others. To help resolve this issue, mediation process of affected parties is currently underway.
Based on public input, the issue of who should be held responsible for watercraft related incidental take of manatees also remains controversial. There are those who believe that government programs which authorize watercraft access and regulate watercraft operation may not be directly responsible for incidental, unintentional take of manatees, and that only the individual boater on the water should be held accountable. On the other hand, the Service believes there are instances where a causal link ties government authorization and regulation of watercraft access and operation in Florida waters to the incidental, unintentional take of manatees. Under Section 7 of the ESA, the Service is obligated to analyze the direct, indirect, interrelated, and interdependent effects of these government actions on manatee mortality and harassment, as well as manatee habitat, and cannot authorize incidental take that is reasonably certain to result from Federal actions until incidental take authorization is in place under the MMPA.
Finally, there is the overall emotional nature of regulating individual boaters in Florida. In general, there is vocal opposition by some boaters and associated interests to any watercraft related regulation whatsoever. On the other hand, there are equally vocal members of the public who feel that zero incidental take of Florida manatees is the only option to follow.
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