North Florida Field Office Proposed Incidental Take Regulations under the Marine Mammal Protection Act - Florida Manatee

Updated 11/26/02 to reflect "as published" in the Federal Register (67 FR 69077) on November 14, 2002

PDF Version - 207KB 

[Federal Register: November 14, 2002 (Volume 67, Number 220)]
1. [Proposed Rules] 
[Page 69077-69104]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no02-14] 

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Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 18

Florida Manatees; Incidental Take During Specified Activities; Proposed 
Rule


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AH86

Florida Manatees; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability.

SUMMARY: We, the Fish and Wildlife Service, are proposing regulations that would authorize for the next five years the incidental, unintentional take of small numbers of Florida manatees (Trichechus manatus latirostris) resulting from government activities related to watercraft and watercraft access facilities within three regions of Florida.

Under the provisions of the Marine Mammal Protection Act (MMPA), the Secretary of the Department of the Interior may authorize the incidental taking of small numbers of marine mammals in a specified geographic area if the Secretary finds, based on the best scientific evidence available, that the total taking for the authorized period will have no more than a negligible impact on the species or stock. If this finding is made, specific regulations will be established for the activities that describe permissible methods of taking; means of effecting the least practicable adverse impact on the species and its habitat; and requirements for monitoring and reporting. If the Secretary cannot make a finding that the total taking will have a negligible impact on the species or stock, the Secretary must publish the negative finding in the Federal Register along with the basis for such determination.

We have defined the specified geographic area for this proposed rule to be the species’ range within the State of Florida. Long-term studies suggest four regional populations of manatees in Florida--Northwest, Upper St. Johns River (from Palatka south), Atlantic (including the St. Johns River north of Palatka), and Southwest. Through this rule, we have defined these populations as stocks. We are proposing a finding that the total expected takings of Florida manatee resulting from government activities related to watercraft and watercraft access facilities would have a negligible impact in the Upper St. Johns River and Northwest stocks and a negligible impact with the implementation of additional mitigating measures on the Atlantic Stock. For the Southwest Stock, the best available information indicates that these activities would have more than a negligible impact on the Stock and, therefore, we are not proposing to authorize incidental take for this Stock (i.e., a negative finding). We also announce the availability of a draft environmental impact statement for this action.

DATES: We will consider comments on both the proposed rule and the draft environmental impact statement that are received by January 13, 2003 - EXTENDED to January 27, 2003 - Public Comment period CLOSED January 27, 2003.

We will hold six public hearings as follows: on December 2, 2002, in Ft. Myers; on December 3, 2002, in Tampa; on December 4, 2002, in Melbourne; on December 5, 2002, in Daytona Beach; on December 9, 2002, in Palatka; and on December 10, 2002, in Gainesville. All hearings will run from 6 p.m. to 9 p.m. We will hold additional public hearings if requested.

Persons needing reasonable accommodations in order to attend and participate in the public hearing should contact Chuck Underwood of the Jacksonville Field Office (see ADDRESSES section) as soon as possible. In order to allow sufficient time to process requests, please call no later than one week before the hearing.

ADDRESSES: If you wish to comment, you may submit your comments by any one of the following methods:

1. You may submit written comments and information to the Field Supervisor, Jacksonville Field Office, U.S. Fish and Wildlife Service, 6620 Southpoint Drive South, Suite 310, Jacksonville, Florida 32216.

2. You may hand deliver written comments to our Jacksonville Field Office, at the above address, or fax your comments to 904/232-2404.

3. You may send comments by electronic mail (e-mail) to manatee@fws.gov. For directions on how to submit electronic comment files, see the "Public Comments Solicited" section.

We request that you identify whether you are commenting on the proposed rule or draft environmental impact statement. Comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours from 8 a.m. to 4:30 p.m. Monday through Friday, at the above address. You may obtain copies of the draft environmental impact statement from the above address or by calling 904/232-2580, or from our website at http://www.fws.gov/northflorida. Information regarding this proposal is available in alternative formats upon request.

The public hearings will be held at the following locations:  (SEE UPDATED SCHEDULE - ADDED 11/26/02)

1. Harborside Convention Hall, 1375 Monroe St., Ft. Myers;

2. Holiday Inn & Conference Center, 4732 N. Dale Mabry Hwy, Tampa;

3. Radisson Hotel & Conference Center, 3101 N. Highway A1A, Melbourne;

4. Daytona Beach Resort & Conference Center, 2700 N. Atlantic Ave., Daytona Beach;

5. Holiday Inn, 201 N. 1^st St., Palatka; and,

6. Doubletree University Florida Hotel & Conference Center, 1714 SW 34^th St., Gainesville.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Assistant Field Supervisor (see ADDRESSES section), telephone 904/232-2580; or visit our web site at http://www.fws.gov/northflorida.

SUPPLEMENTARY INFORMATION:

Background

The Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. 1361-1407) sets a general moratorium, with certain exceptions, on the taking and importation of marine mammals and marine mammal products and makes it unlawful for any person to take, possess, transport, purchase, sell, export, or offer to purchase, sell, or export, any marine mammal or marine mammal product unless authorized. "Take" as defined by the MMPA and its implementing regulations (50 CFR Part 18) means "to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal, including, without limitation, any of the following--the collection of dead animals or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; or the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in the disturbing or molesting of a marine mammal."

"Harassment" is defined under the MMPA as, "any act of pursuit, torment, or annoyance which--(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering."

The prohibitions on take apply to all persons, including Federal, State, and local government agencies with the exception

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 of humane taking (including euthanasia) by government officials while engaged in their official duties, if such taking is (1) for the protection or welfare of a marine mammal; (2) for the protection of the public health and welfare; or (3) the non-lethal removal of nuisance animals. When feasible, steps designed to ensure return of such animals to their natural habitat, if not killed in the course of such taking, must be implemented (16 U.S.C. 1379(h)).

Section 101(a)(5)(A) of the MMPA allows the Secretary of the Department of the Interior, through the Director of the Fish and Wildlife Service (Service), upon request, to authorize by specific regulation the incidental, unintentional take of a small number of marine mammals by U.S. citizens engaged in specific identified activities (other than commercial fishing) within specific geographic areas. This is the mechanism by which incidental, but not intentional, take of small numbers of marine mammals may be authorized in accordance with Federal law for activities other than commercial fishing if certain findings are made and regulations are enacted pursuant to 50 CFR 18.27. The Director must find that the total of such taking during the specified time period (which cannot be more than five consecutive years) will have no more than a negligible impact on the species or stock and will not have an unmitigable impact on the availability of such species or stock for subsistence uses. The subsistence provision is not applicable to Florida manatees.

The regulations implementing the MMPA define "negligible impact" as, "an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival" (50 CFR 18.27(c)). If such findings are made, we would then establish specific regulations identifying permissible methods of taking by such activity, means of effecting the least practicable adverse impact on the species or stock and its habitat, and requirements for monitoring and reporting such taking. If a finding cannot be made that the total taking will have a negligible impact on the species or stock, the "negative finding" and the basis for denying the request for the incidental take must be published in the Federal Register (50 CFR 18.27(d)(4)).

Following issuance of incidental take regulations, U.S. citizens (including government agencies) who engage in the specified activities in the specified area could apply for a Letter of Authorization (LOA), which, if granted, would authorize incidental take associated with the applicant's activities. In return for committing to specific measures that minimize the applicant’s impact on the species or stock and ensure that the total taking remains at the negligible level, the applicant receives authorization for any remaining take that occurs and that would otherwise be unlawful under the MMPA. General procedures for obtaining an LOA are described at 50 CFR 18.27(f).

Summary of Request

The Florida Manatee Recovery Plan, Third Revision (U.S. Fish and Wildlife Service 2001), states that the largest known human-related cause of manatee deaths is collisions with watercraft. Between 1976 and 2000, the total number of carcasses (i.e., deaths due to all causes) collected has increased at a rate of 6.0 percent per year. Between 1976 and 2002 deaths attributed to watercraft increased by 7.3 percent per year (Florida Marine Research Institute 2002). In 2000 and 2001, watercraft-related deaths accounted for at least 29 percent and 25 percent, respectively, of the total number of known manatee deaths. During the past five years (1997 to 2001) watercraft-related deaths have been the highest on record ranging from 52 to 82 per year.

In the State of Florida, government agencies (including Federal, State, and local agencies) engage in a variety of activities related to watercraft that may affect manatees, positively or negatively. Many of these activities relate to the use and regulation of watercraft operated in Florida waters accessible to manatees, including--(1) regulating watercraft operation (e.g., regulation of marine events); (2) authorizing construction of watercraft access facilities (marinas, docks, boat ramps, etc.); (3) funding construction of watercraft access facilities; (4) operating watercraft access facilities; and (5) operating watercraft. To date, there are no regulations under the MMPA to authorize the incidental, unintentional death, injury, or harassment of manatees caused by these otherwise legal activities.

We, the U.S. Fish and Wildlife Service, engage in, or have the authority to engage in, each of the above five categories of activities; therefore, our activities could result in the incidental, unintentional take of manatees. As such, we initiated the development of incidental take regulations for our own activities related to watercraft in Florida. Other Federal agencies also engage in some or all of these activities, as do a variety of State and local agencies. We have encouraged other Federal and State agencies involved in these same types of activities to join us in our rulemaking process as a means to coordinate Federal, State, and local measures that would reduce the taking of manatees by watercraft; develop additional protective measures; and insulate partner agencies against liability for take through the authorization process. The U.S. Coast Guard, National Park Service, and U.S. Army Corps of Engineers have agreed to join us in this rulemaking process.

Specified Activities

Only activities of government agencies related to watercraft and watercraft access facilities are considered within the scope of this rule. While it is our view that the operation of watercraft is the most important factor influencing watercraft/manatee interactions (see "Watercraft-Related Impacts to the Florida Manatee" section below), virtually all aspects of watercraft operation and access are regulated by Federal, State, and/or local government agencies. As such, those government agencies who hold a Letter of Authorization will have protection from liability for take associated with these activities. Liability protection afforded under these regulations would also extend to individual non-governmental operators of watercraft and watercraft access facilities who are authorized or regulated by a Federal, State, or local government agency holding a Letter of Authorization, provided (1) the government authorization or regulation is implemented in accordance with the Letter of Authorization; and (2) the individual is in compliance with the terms of the agency authorization or regulation. For example, by issuing a Letter of Authorization to an agency that permits the construction of watercraft access facilities, entities receiving such permits would be covered under the agency’s Letter of Authorization.

The following five categories of activities were considered in the scope of this rulemaking evaluation as watercraft-related activities of government agencies that could cause the incidental take of manatees, including mortality, injury, and harassment. Activities of government agencies that have the potential to reduce watercraft-related take of manatees are described below under "Mitigating Measures."

1. Regulating the operation of watercraft on Florida waters--This category of activity includes government programs responsible for the establishment of watercraft speed zones and restricted access areas. Local, State, 

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and Federal agencies establish speed zones and restricted access areas in order to reduce watercraft-related take of manatees by slowing watercraft speeds or prohibiting waterborne activities in areas of importance to manatees such as aggregation areas, travel corridors, feeding areas, resting areas, calving areas, and other areas where manatees occur. The establishment of such areas does not cause or contribute to take. However, to the extent that agencies exempt, except, permit, or otherwise allow prohibited activities to occur in such areas, such authorization may cause or contribute to the incidental take of manatees.

This category also includes government programs (e.g., State/local registration, U.S. Coast Guard vessel documentation) that register watercraft for operation in waters inhabited by manatees. This activity may cause or contribute to incidental take of manatees to the extent that watercraft which are not properly registered are not authorized to operate on Florida waters. Finally, this category includes the authorization and regulation of marine events (e.g., high-speed races, parades, etc.) in Florida waters inhabited by manatees. Such events, particularly events that involve high-speed watercraft operation, have the potential to cause or contribute to the incidental take of manatees.

2. Authorizing construction of watercraft access facilities (e.g., boat ramps, docks, and marinas) that provide watercraft access to waters inhabited by manatees--This category of activity includes government programs that regulate the location and construction of watercraft access facilities including boat ramps, marinas, private and public docks, and other such structures that provide watercraft access to waters inhabited by manatees. Construction of watercraft access facilities is authorized by local, State, and Federal agencies. At the local level, construction of watercraft access facilities is regulated primarily through zoning ordinances. Several Florida counties have adopted Manatee Protection Plans (MPP) which include facility siting plans. Facility siting plans generally identify areas within a county where construction of additional watercraft access facilities are encouraged or discouraged, or define criteria for assessing the suitability of sites for construction of new facilities. County MPPs must be approved by the Florida Fish and Wildlife Conservation Commission (FWC). Upon approval, the facility siting plans must be incorporated into the County’s comprehensive plan.

At the State level, construction of watercraft access facilities is regulated by the Florida Department of Environmental Protection and the water management districts pursuant to the State’s Environmental Resource Permit Procedures (62-343 Florida Administrative Code [F.A.C.]). Permit applications received by the State regulatory agencies are also reviewed by the FWC, Bureau of Protected Species Management (BPSM), which uses the FWC Manatee Environmental Resource Permit Coordination Guidance, and provides an environmental assessment of potential adverse impacts to manatees from regulated activities.

At the Federal level, construction of watercraft access facilities is regulated by the Army Corps of Engineers (Corps) through section 404 of the Clean Water Act of 1972 and section 10 of the Rivers and Harbors Act of 1899. Section 7 of the Endangered Species Act (ESA) of 1973 (16 U.S.C. 1531 et seq.), as amended, requires the Corps to assess the effects of any facility under their review on federally listed species and consult with us or the National Marine Fisheries Service (NOAA-Fisheries), as appropriate, if they determine that the facility in question may affect listed species or their designated critical habitat. The Corps utilizes a decision-making key developed in cooperation with us to assist in determining whether a proposed project may affect manatees. If potential adverse effects to manatees or manatee habitat are identified, the permit can be specifically conditioned to avoid the adverse impacts, or where appropriate, denied. Typical permit conditions include limitations on the number of slips, and avoidance or minimization of impacts to sea grasses. Additionally, standard manatee construction conditions have been developed that are utilized by the Corps as well as State regulatory agencies to minimize the effects of watercraft access facilities on manatees and manatee habitat.

3. Funding construction of watercraft access facilities that provides watercraft access to waters inhabited by manatees--In addition to authorizing construction of watercraft access facilities, many local, State, and Federal agencies fund their construction. The effects of funding construction of watercraft access facilities are the same as those described for permitting construction of watercraft access facilities.

4. Operating facilities that provide watercraft access to waters inhabited by manatees-- Many government agencies operate watercraft access facilities. Operation includes any act of owning, maintaining, or directly or indirectly controlling who has access to waters inhabited by manatees through use of any watercraft access facility.

5. Operating government-owned watercraft in Florida waters accessible to manatees for official government business other than that covered under section 109(h) of the MMPA--Many government agencies own and operate watercraft. Incidental take directly related to the protection of manatees is covered under the exemption provided under section 109(h) of the MMPA. Other government watercraft activities require authorization under the MMPA like that of private watercraft operators.

Other human activities cause the incidental take of manatees including, but not limited to, the operation of locks and water control structures, port operations, naval and other military activities, the operation of industrial warm-water outfalls, commercial and recreational fisheries, implementation of projects that affect the quality and quantity of water flow from warm water springs, and the implementation of water manipulation projects that affect the distribution, timing, quality, and quantity of waterflow in manatee habitat. These activities are outside of the scope considered in this evaluation, but may be subject to the future publication of rules.

Specified Geographic Region

While the summer range of the Florida manatee extends beyond Florida, the entire natural winter range is within Florida where the majority of watercraft-related incidental take occurs. The effective control of watercraft-related incidental take depends on actions of the operators of watercraft and government agencies in Florida. Therefore, the specific geographic area considered for coverage by this regulation was limited to those waters within the State of Florida that are accessible to manatees. Separate regulations for government activities in other geographic areas outside of the State of Florida may be considered under subsequent rulemakings, if requested.

Long-term studies suggest four regional populations of manatees in Florida--(a) the Northwest Region, consisting of the counties along the Gulf of Mexico from Escambia County east and south to Hernando, Lafayette, and Gilchrist counties, and Marion County adjacent to the Withlacoochee River; (b) the Upper St. Johns River Region, consisting of Putnam County from Palatka south, Volusia, Flagler, and Marion counties adjacent to the St. Johns River or its tributaries, and Lake

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and Seminole counties; (c) the Atlantic Region, consisting of counties along the Atlantic coast from Nassau County south to Miami-Dade County, the portion of Monroe County adjacent to the Florida Bay and the Florida Keys, Okeechobee County, and counties along the lower portion of the St. Johns River north of Palatka, which includes Putnam, St. Johns, Clay, and Duval counties; and (d) the Southwest Region, consisting of the counties along the Gulf of Mexico from Pasco County south to Whitewater Bay in Monroe County and DeSoto, Glades, and Hendry counties.

These divisions are based primarily on documented manatee use of wintering sites and from radio-tracking studies of individuals’ movements. Radio-tracking studies (Bengtson 1981) and other information (U.S. Fish and Wildlife Service 2001, Marine Mammal Commission [MMC] 1988) suggest that most manatees wintering at Blue Spring tend to remain in the area identified as the Upper St. Johns River Region. The manatees of this region comprise approximately four percent of the total Florida manatee population. The lower St. Johns River, the Atlantic coast, and the Florida Keys are considered to represent the Atlantic Region, based on the results of long-term radio tracking and photo-identification studies (Beck and Reid 1995, Reid et al. 1995, Deutsch et al. 1998). The manatees of this region comprise approximately 42 percent of the total Florida manatee population.

On the west coast, Rathbun et al. (1995) reported that, of 269 recognizable manatees identified at the Kings Bay and Homosassa River warm-water refuges in northwest Florida between 1978 and 1991, 93 percent of the females and 87 percent of the males returned to the same refuge each year. Radio-tracking results suggest that many animals wintering at Crystal River disperse north in warm seasons to rivers along the Big Bend coast, particularly the Suwannee River (Rathbun et al. 1990). The manatees of this region comprise approximately 12 percent of the total Florida manatee population. The existence of more or less distinct subgroups in the southwestern area of Florida (i.e., from Tampa Bay south) is not clear. It is possible that manatees using warm-water refuges in Tampa Bay, the Caloosahatchee River, and Collier County may be somewhat discrete groups; however, the best available data before us and the Florida Manatee Recovery Team indicated that we should identify them as one group. The manatees of this region comprise approximately 42 percent of the total Florida manatee population.

Although some movement occurs among regional populations, researchers found that analysis of manatee status on a regional level provided significant insights into important factors related to manatee recovery, such as winter aggregation areas, manatee movement patterns, and human interactions (U.S. Fish and Wildlife Service 2001). This led the Florida Manatee Recovery Team and the Service to establish objective and measurable recovery criteria for the four regions based upon demographic benchmarks for certain aspects of manatee life history--adult survival, reproduction, and population growth-- in the Florida Manatee Recovery Plan.

Based on available information, we have concluded that these regions meet the criteria for classification as separate stocks under the MMPA. The guidelines for assessing marine mammal stocks (Barlow et al. 1995) advise a risk-averse strategy when determining stock structure. The guidelines advise that this requires starting with a definition of stocks based on the smallest groupings that are biologically reasonable and are practical from a management perspective. Biological evidence indicates considerable demographic differences among the four regions. For example, based on recent analysis (Langtimm et al. 2002) estimates of adult survival rates vary among regions; ranging from a high of 96.2 (95 percent confidence interval (CI) that ranges from 95.3 to 97.2) in the Northwest Region to a low of 90.6 (95 percent CI 86.7 to 94.4) in the Southwest Region. Adult survival in the Atlantic Region is estimated to be 94.3 percent (95 percent CI 92.3 to 96.2), and adult survival in the Upper St. Johns River Region is 96.1 (95 percent CI 90.0 to 98.5). Similarly, estimates of population growth rates vary among regions. According to a recent analysis by Runge et al. (2002 unpubl. analysis), the growth rate is estimated to be highest in the Upper St. Johns River Region at 6.1 percent per year (95 percent CI 1.7 to 8.7), followed by the Northwest Region (5.0 percent growth per year; 95 percent CI 3.2 to 6.8), and the Atlantic Region (3.2 percent growth per year; 95 percent CI 0.3 to 5.7). Growth rate has not been calculated for the Southwest Region, although it is thought that the population is declining or is, at best, stable.

As noted above, available evidence indicates that there is relatively little movement of manatees among the regions. The highest dispersal rate assumed by the FWC for the purposes of their recent population viability analysis (PVA) (see "The Status of the Florida Manatee" section) was two percent per year between the Upper St. Johns River Region and the Atlantic Region (Florida Marine Research Institute 2002). The FWC assumed that dispersal rates among the other regions did not exceed 0.5 percent per year. This indicates that dispersal from regions in which the population is likely growing (e.g., the Northwest Region) is likely not sufficient to compensate for high levels of human-related mortality in other regions (e.g., the Southwest Region). The stock assessment guidelines warn that managing areas with differential levels of take as a single stock can lead to depletion (Wade and Angliss 1997).

The threats facing manatees also vary among regions. For example, the number of watercraft-related deaths has been reported (U.S. Fish and Wildlife Service 2001) as increasing at a rate of 10.8 percent per year in the Northwest Region between 1980 and 1999; although the number of manatees killed by watercraft in this region over that period was low (N=32). Conversely, watercraft-related deaths in the Southwest Region increased at a rate of 7.1 percent per year during the same period, and a far greater number of manatees were killed (N=331). The disproportionate amounts of incidental take in the Southwest and Atlantic regions supports the definition of separate stocks. Additionally, manatees in the Southwest Region are more vulnerable to red tide than in other regions, and manatees in the Atlantic and Southwest regions are more dependent on man-made warm water sources than are manatees in the Upper St. Johns River and Northwest regions (U.S. Fish and Wildlife Service 2001). Addressing these threats necessitates application of different management approaches in each region. This further supports the definition of these as separate stocks.

Based on the preceding analysis, we conclude that the four regions identified in the Florida Manatee Recovery Plan meet the criteria for designation as separate stocks under the MMPA. We intend to use this determination in the next revision of the Stock Assessment Report for the West Indian Manatee, and for the remainder of this document we will refer to the regions as the Northwest Stock, Upper St. Johns River Stock, Atlantic Stock, and Southwest Stock. Ideally, we would have preferred to review and revise the Stock Assessment Report prior to this rulemaking; however, settlement obligations precluded our ability to do this.

We have determined that these stocks, under the MMPA, do not meet the criteria for designation as Discrete 

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Population Segments pursuant to the ESA, and as such it would not be possible or appropriate for us to consider reclassification of the stocks separately under the ESA.

Summary of Proposed Rule

We are proposing regulations to allow the incidental, unintentional take of Florida manatee within the Northwest, Upper St. Johns River, and Atlantic stocks in Florida. The regulations would be in effect year-round from the date of enactment for a period of five years for government activities related to the operation of watercraft and watercraft access facilities. The proposed regulations would not authorize the intentional harassment, hunting, capturing, or killing of Florida manatee. These regulations do not permit the actual activities associated with use and regulation of watercraft and watercraft access facilities in Florida waters, but rather allow the incidental, unintentional take of the Florida manatee resulting from these otherwise lawful activities. We are not proposing to authorize incidental take of manatees from the Southwest Stock at this time. However, we will continue to monitor the status of the Southwest Stock, and will propose incidental take regulations as soon as available information indicates that watercraft-related incidental take in this region is having no more than a negligible impact on the Southwest Stock, or could be reduced to the negligible impact level with implementation of mitigating measures.

The proposed regulations include requirements for monitoring and reporting, and measures to reduce adverse impacts on the Florida manatee and its habitat to the maximum extent practicable. The regulations are based on the finding that the authorization and regulation of watercraft and watercraft access facilities in Florida may result in the taking of Florida manatee. We find that with the continued and/or additional implementation of the mitigating measures described in this proposed rule, the total impact of the takings in three of the four stocks will have a negligible impact on these stocks.

After establishing these regulations, in order to implement the regulations and for a person or agency to receive the protections offered by the MMPA, government agencies that engage in the specified activities would need to apply for and obtain an LOA. The process for requesting an LOA is described in the "Proposed LOA Process" section of this proposed rule.

The Status of the Florida Manatee

In the southeastern United States, manatees occur primarily in Florida and southeastern Georgia, but individuals can range as far north as Rhode Island on the Atlantic coast (U.S. Fish and Wildlife Service 2001), and as far west as Texas on the Gulf coast. During the winter, cold temperatures keep the population concentrated in peninsular Florida and many manatees rely on the warm water from natural springs and power plant outfalls. We have divided this population into four stocks as explained above.

Research in the early 1980s indicated to scientists that development of a means of estimating or monitoring trends in the size of the overall manatee population in the southeastern United States would be difficult (O’Shea 1988, O’Shea et al. 1992, Lefebvre et al. 1995). Even though many manatees aggregate at warm-water refuges in winter and most if not all such refuges are known, direct counting methods (i.e., by aerial and ground surveys) have been unable to account for the number of animals that may be away from these refuges, are not seen because of turbid water, or for other factors. The use of mark-resighting techniques to estimate manatee population size based on known animals in the manatee photo-identification database also has been impractical, as the proportion of unmarked manatees has not been estimated.

The only data on population size have been uncalibrated indices based on maximum counts of animals at winter refuges made within one or two days of each other. Based on such information in the late 1980s, the total number of manatees throughout Florida was indicated to be at least 1,200 animals (U.S. Fish and Wildlife Service 2001). Because aerial and ground counts at winter refuges are variable because of the weather, water clarity, manatee behavior, and other factors (Packard et al. 1985, Lefebvre et al. 1995), interpretation of analyses for short-lived trends is difficult (Packard and Mulholland 1983, Garrott et al. 1994). Strip-transect aerial surveys are used routinely to estimate dugong (Dugong dugon) population size and trends (U.S. Fish and Wildlife Service 2001); however, these surveys do not adapt to manatees because of their more linear (i.e., coastal and riverine) distribution. This survey method was tested in the Banana River, Brevard County, and recommended for use in that area to monitor manatee population trends (Miller et al. 1998). This approach may also have utility in the Ten Thousand Islands-Everglades area, where manatee population size and distribution is poorly understood.

Beginning in 1991, the former Florida Department of Natural Resources (FDNR) initiated a statewide aerial survey program to count manatees in potential winter habitat during periods of severe cold weather (Ackerman 1995). These surveys are more comprehensive than those used to estimate a minimum population during the 1980s. The highest two-day minimum count of manatees from these winter synoptic aerial surveys and ground counts is 3,276 manatees in January 2001; the highest count on the east coast of Florida is 1,756, and the highest on the west coast is 1,520, both in 2001. However, the manatee counts of March 2002, when weather conditions were less favorable, resulted in a total count of 1,796. The FWC stated in their March 6, 2002, press release that the "low count merely reflects the poor visibility during the count, not a dramatic change in the manatee population." Due to the nearly ideal conditions for the 2001 synoptic survey, the results of that survey are considered the best available estimate of the current minimum population size (i.e., 3,276).

It remains unknown what proportions of the total manatee population were counted in these surveys. No statewide surveys were done during the winters of 1992-93 or 1993-94 because of the lack of strong mid-winter cold fronts. These uncorrected counts do not provide a basis for assessing population trends. However, trend analyses of temperature-adjusted aerial survey counts show promise for providing insight to general patterns of population growth in some regions (Garrott et al. 1994, 1995, Craig et al. 1997, Eberhardt et al. 1999).

It has been possible to monitor the number of manatees using the Blue Spring and Crystal River warm-water refuges. At Blue Spring, with its unique combination of clear water and a confined spring area, it has been possible to count the number of resident animals by identifying individual manatees from scar patterns. The data indicate that this group of animals has increased steadily since the early 1970s when it was first studied. During the 1970s the number of manatees using the spring increased from 11 to 25 (Bengtson 1981). In the mid-1980s about 50 manatees used the spring (U.S. Fish and Wildlife Service 2001), and by the winter of 1999-2000, the number had increased to 147 (Hartley 2001).

On the northwest coast of Florida, the clear, shallow waters of Kings Bay have made it possible to monitor the number

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of manatees using the warm-water refuge in Kings Bay at the head of the Crystal River. Large aggregations of manatees apparently did not exist there until recent times (U.S. Fish and Wildlife Service 2001). The first counts were made in the late 1960s, when 38 animals were counted in King Bay during the winter of 1967/1968 (Hartman 1979). By the winter of 1981/1982, the maximum winter count had increased to 114 manatees (Powell and Rathbun 1984), and in December 1997, the maximum count was 284 (Buckingham et al. 1999). Both births and immigration of animals from other areas have contributed to the increases in manatee numbers at Crystal River and Blue Spring. The increases in counts at Blue Spring and Crystal River are accompanied by estimates of adult survival and population growth that are higher than those determined for the Atlantic coast (Eberhardt and O’Shea 1995, Langtimm et al. 1998, Eberhardt et al. 1999).

While aircraft synoptic surveys provide a "best estimate" of the minimum manatee population size, there are no estimates or confidence intervals for the size of the Florida manatee population that have been derived by reliable, statistically based, population-estimation techniques. A census is a complete count of individuals within a specified area and time period. A survey, in contrast, is an incomplete count. With the exception of a few places where manatees may aggregate in clear, shallow water, not all manatees can be seen from aircraft because of water turbidity, depth, surface conditions, variable times spent submerged, and other considerations. Thus, results obtained during typical manatee synoptic surveys yield partial counts. While these results are of value in providing information on where manatees occur, likely relative abundance in various areas, and seasonal shifts in manatee abundance, they do not provide good population estimates, nor can they reliably measure trends in the manatee population. Consequently, the Florida Manatee Recovery Plan concludes-- "Despite considerable effort in the early 1980s, scientists have been unable to develop a useful means of estimating or monitoring trends in size of the overall manatee populations in the southeastern United States" (U.S. Fish and Wildlife Service 2001).

Population models employ mathematical relationships based on survival and reproduction rates to calculate population growth and trends in growth. A deterministic model (a model in which there are no random events) using classical mathematical approaches and various computational procedures with data on reproduction and survival of living, identifiable manatees suggests a maximum growth rate of about seven percent per year, excluding emigration or immigration (Eberhardt and O’Shea 1995). This maximum was based on studies conducted between the late 1970s and early 1990s in the protected winter aggregation area at Crystal River and did not require estimates of population size. The analysis showed that the chief factor affecting the potential for population growth is survival of adults.

Estimated adult survival in the Atlantic Region has suggested a slower rate or no population growth over a similar period, compared to the Upper St. Johns River and Northwest regions. This modeling shows the value of using survival and reproduction data obtained from photo-identification studies of living manatees to compute population growth rates with confidence intervals, providing information which can be used to infer long-term trends in the absence of reliable population size estimates. However, collection of similar data has been initiated only recently for other areas of Florida (notably from Tampa Bay to the Caloosahatchee River beginning in the mid-1990s), and none is available over much of the remaining areas used by manatees in southwestern Florida.

A PVA is a stochastic modeling approach (i.e., a model in which random events, such as red tide and extremely cold winters, are incorporated), which varies potential scenarios influencing reproduction and survival over long periods, and predicts responses in population growth. A PVA was carried out for manatees based on age-specific mortality rates computed from the age distribution of manatees found dead throughout Florida from 1979 through 1992 (Marmontel et al. 1997). This method of computing survival rests on certain assumptions that were not fully testable; yet, results point out the importance of adult survival to population persistence.

Given population sizes that may reflect current abundance, the PVA showed that if adult mortality as estimated for the study period were reduced by a modest amount (e.g., from 11 percent down to nine percent), the Florida manatee population would likely remain viable for many years. However, the PVA also showed that slight increases in adult mortality would result in extinction of manatees over the long term.

The above review demonstrates that the basis for statewide population size "estimates" of any kind, based on current survey methods, cannot be used for computing population trends in manatees. The weight of scientific evidence suggests that the potential for population increases over the last two decades is strong for two protected aggregation areas. New population analyses, based on more recent (since 1992) information, are not yet available in the peer-reviewed literature. These analyses will be fundamental to management decisions that are more relevant today.

The most significant problem presently faced by manatees in Florida is death or serious injury from boat strikes. An additional long-term threat is the lack of availability of warm-water refuges. The availability of warm-water refuges for manatees is uncertain if minimum flows and levels are not established for the natural springs on which many manatees depend, and if industrial warm-water refuges are lost as deregulation of the power industry in Florida occurs. Consequences of an increasing human population and intensive coastal development are also long-term threats to the Florida manatee. Survival of the manatee will depend on maintaining the integrity of the ecosystem and habitat sufficient to support a viable manatee population.

Data on manatee deaths in the southeastern United States have been collected since 1974 (O’Shea et al. 1985, Ackerman et al. 1995, FWC unpubl. data). Data since 1976 were used in the following summary, as carcass collection efforts were more consistent following that year. They indicate a clear increase in manatee deaths over the last 25 years (6.0 percent per year exponential regression between 1976 and 2000; U.S. Fish and Wildlife Service 2001). Most of the increase can be attributed to increases in watercraft-related and perinatal deaths (Marine Mammal Commission 1993). Between 1976 and 2002, watercraft-related deaths increased at an average of 7.3 percent per year (Florida Marine Research Institute 2002). However, it is unclear whether this represents an increase in the overall mortality rate or a proportional increase relative to the overall population of manatees. The reported rate of increase in manatee mortality, and watercraft-related mortality in particular, is greater than the likely rate of population increase reported by Runge et al. (2002).

Natural causes of death include disease, parasitism, reproductive complications, and other non-human-related injuries, as well as occasional exposure to cold and red tide (O’Shea et al. 1985, Ackerman et al. 1995). These 

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natural causes of death accounted for 17 percent of all deaths between 1976 and 2000 (FWC, unpublished data). Perinatal deaths accounted for 21 percent of all deaths in the same period. Human-related causes of death include watercraft collisions, manatees crushed in water control structures and navigational locks, and a variety of less-common causes. Human-related causes of death accounted for at least 31 percent of deaths between 1976 and 2000. Cause of death of some individuals could not be determined because of advanced decomposition, the cause was forensically undeterminable, or the carcass was not recovered. These carcasses were classified as undetermined, and accounted for 30 percent of deaths between 1976 and 2000.

A natural cause of death in some years is exposure to cold. Following a severe winter cold spell at the end of 1989, at least 46 manatee carcasses were recovered in 1990; the cause of death for each was attributed to cold stress. Exposure to cold is believed to have caused many deaths in the winters of 1977, 1981, 1984, 1990, and 2001 and has been documented as early as the 19^th century (Ackerman et al. 1995, O’Shea et al. 1985, FWC, unpubl. data).

In 1982, a large number of manatees also died during an outbreak of the red tide dinoflagellate (Gymnodinium breve) between February and March in Lee County, Florida (O’Shea et al. 1991). At least 37 manatees died, perhaps in part due to incidental ingestion of filter-feeding tunicates that had accumulated the neurotoxin-producing dinoflagellates responsible for causing red tide. In 1996, from March to May, at least 145 manatees died in a red tide outbreak over a larger area of southwest Florida (Bossart et al. 1998, Landsberg and Steidinger 1998). Although the exact mechanism of manatee exposure to the red tide brevetoxin is unknown in the 1982 and 1996 outbreaks, ingestion, inhalation, or both are suspected (Bossart et al. 1998). The critical circumstances contributing to high red tide-related deaths are concentration and distribution of the red tide, timing and scale of manatee aggregations, salinity, and timing and persistence of the bloom (Landsberg and Steidinger 1998). It is difficult to manage for these rare but catastrophic causes of mortality.

Perinatal deaths are carcasses of manatees less than 59 inches long (O’Shea et al. 1995). Some are aborted fetuses; others are stillborn or die of natural causes within a few days of birth. Some may die from disease, reproductive complications, and/or congenital abnormalities. The cause of many perinatal deaths is difficult to determine, because these carcasses are generally in an advanced state of decomposition at the time they are retrieved. Most perinatal deaths appear to be due to natural causes; however, watercraft-related injuries or disturbance, or other human-related factors affecting pregnant and nursing mothers also may be responsible for a significant number of perinatal deaths. It has also been suggested that some may die from harassment by adult male manatees (O’Shea and Hartley 1995). Between 1976 and 1999, perinatal deaths increased at an average of 8.8 percent per year, increasing from 14 percent of all deaths between 1976 and 1980, to 22 percent between 1992 and 2000 (Ackerman et al. 1995, FWC unpubl. data).

The largest known cause of human-related manatee deaths is collisions with watercraft. The next largest human-related cause of deaths is entrapment or crushing in water control structures and navigational locks, which accounted for four percent of total mortality between 1976 and 2000 (Ackerman et al. 1995, FWC unpubl. data). These deaths were first recognized in the 1970s (Odell and Reynolds 1979), and steps have been taken to eliminate this source of death. Other known causes of human-related manatee deaths include poaching and vandalism, entanglement in shrimp nets and monofilament line (and other fishing gear), entrapment in culverts and pipes, and ingestion of debris. These accounted for three percent of the total mortality from 1976 to 2000.

In 2001, the Manatee Population Status Working Group (MPSWG) provided a statement summarizing what they believed to be the status of the Florida manatee at that time (U.S. Fish and Wildlife Service 2001). The MPSWG stated, that for the Northwest and Upper St. Johns River regions, available evidence indicated that there had been a steady increase in animals over the last 25 years. Such growth was consistent with the conditions of these regions--low numbers of human-related deaths, high estimates of adult survival, and good habitat. The statement was less optimistic for the Atlantic Region due to an adult survival rate that was lower than the rate necessary to sustain population growth. The MPSWG believed that this region had likely been growing slowly in the 1980s but may then have leveled off or even possibly declined. They considered the status of the Atlantic Region to be "too close to call." This finding was consistent with high levels of human-related and, in some years, cold-related deaths in this region. Regarding the Southwest Region, the MPSWG acknowledged that further data collection and analysis would be necessary to provide an assessment of the manatee’s status in this region. Preliminary estimates of adult survival available to the MPSWG at that time indicated that the Southwest Region was similar to the Atlantic Region and "substantially lower than [the adult survival estimates] for the Northwest and Upper St. Johns Regions." The Southwest Region was cited as having had high levels of watercraft-related deaths and injuries and natural mortality events (i.e., red tide and severe cold).

Since the above-mentioned assessment by the MPSWG, additional information and analyses have become available. Based on the data provided at the April 2002 Manatee Population Ecology and Management Workshop, we now believe that the Northwest and Upper St. Johns River stocks continue to do well and that these stocks are approaching the demographic benchmarks established in the Florida Manatee Recovery Plan for downlisting and delisting under the ESA. Furthermore, we believe that the Atlantic Stock may be close to meeting the ESA downlisting benchmark for adult survival, at a minimum, and is likely close to meeting or exceeding the other benchmarks. We are less optimistic, however, regarding the Southwest Stock. Although data are still insufficient or lacking to compare the Southwest Stock’s status to the ESA downlisting/delisting criteria, preliminary data for adult survival indicate that the Southwest Stock is below the benchmarks established in the Florida Manatee Recovery Plan.

Although we are optimistic about the apparent increases in population in three out of the four stocks, it is important to clarify that, in order to downlist or delist the manatee pursuant to the ESA, all four stocks must simultaneously meet the appropriate criteria as described in the Florida Manatee Recovery Plan. Additionally, any action under the ESA would be based on a status assessment for the species throughout its range and must consider the factors, as described in section 4(a)(1) of the ESA, that determine whether any species meets the definition of endangered or threatened.

Watercraft-Related Impacts to the Florida Manatee

Between 1976 and 2002, watercraft-related mortality accounted for 24 percent of total mortality and increased at an average rate of 7.3 percent per year 

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(Florida Marine Research Institute 2002). From 1996 to 2002, watercraft-related deaths have been the highest on record. Additionally, many living manatees also bear scars or wounds from vessel strikes, indicating that watercraft are also responsible for a substantial amount of harassment of manatees. An analysis of injuries to 406 manatees killed by watercraft and recovered between 1979 and 1991 found that 55 percent were killed by impact, 39 percent were killed by propeller cuts, four percent had both types of injuries, either of which could have been fatal, and unidentified specifics of the collision had caused two percent of the mortalities (Wright et al. 1995). The vast majority of available information regarding the effects of watercraft-related activities on manatees is related to lethal take of manatees. For the purposes of this analysis, we are assuming that activities that result in the lethal take of manatees also have similar levels of sub-lethal effects on manatees and manatee habitat.

Watercraft speed is the primary factor contributing to collisions with manatees. At high speeds, watercraft operators are less able to detect and avoid objects (such as manatees) in the path of the vessel and manatees have less time to detect and avoid the on-coming vessel. Due to these facts, Federal, State, and local officials have sought to limit watercraft speeds in areas where manatees are most likely to occur to afford both manatees and boaters time to avoid collisions. Additionally, the mere presence of watercraft can cause harassment of manatees in certain situations; most notably at warm water aggregation areas, where large numbers of manatees congregate to stay warm during winter months. Disturbance of manatees at these sites can cause manatees to leave the warm water area, exposing them to potentially harmful cold water conditions. To address this threat, State and Federal officials have restricted human access to many important warm water sites during winter months. The establishment of speed zones and restricted access areas do not cause or contribute to incidental take, per se; however, to the extent that agencies exempt, except, permit, or otherwise authorize restricted or prohibited activities to occur in such areas, such authorization may cause or contribute to the incidental take of manatees.

The number of watercraft operating on Florida’s waters may also be a factor. The FWC Division of Law Enforcement reported that, in 1999, more than one million vessels used Florida’s waterways, including over 829,000 State-registered vessels and about 300,000 out-of-state vessels. Boating continues to increase in Florida as evidenced by just over 943,600 State-registered vessels (FWC 2002a) and more than 400,000 out-of-state vessels for 2001. At the same time, watercraft-related manatee mortality and increasing mortality trends have been documented since collection of manatee mortality data began in 1974. Data regarding causes of manatee deaths, and particularly the increasing number of watercraft-related deaths, should be viewed in the context of Florida’s growing human population, which has increased by 130 percent since 1970, from 6.8 to 15.7 million in 2000 (Florida Office of Economic and Demographic Research 2001). The rise in manatee deaths during this period is attributable, in part, to the increasing number of people and watercrafts sharing the same waterways. It should also be noted that the increasing number of deaths could, in part, be due to increasing numbers of manatees. If existing protection (zones and enforcement) for manatees remains at its current standards, we anticipate that human-caused take will continue to increase to levels that will lead to a declining population in certain portions of the population, which may already be occurring for the Southwest Stock. As noted above, the number of manatee carcasses recovered statewide each year is increasing at a rate that is likely greater than the rate of increase in the manatee population. Continuation of this trend would inevitably lead to a population decline. During the past five years (1997 to 2001), the watercraft-related deaths have been the highest on record with 55, 66, 82, 78 and 81, respectively. This year (2002), watercraft-related mortalities have surpassed 1999 as highest on record.

As noted above, where and how fast watercraft are operated are the most important factors in watercraft-related incidental take of manatees. However, other activities related to operation of watercraft are contributing factors to incidental take. Virtually all watercraft operating in Florida waters gain access to those waters by watercraft access facilities. Construction and operation of such facilities have the potential to affect manatee habitat such as seagrass beds, and construction activities have the potential to harass manatees. Additionally, the availability and location of watercraft access facilities influence the number of watercraft that use any given waterbody, as well as watercraft travel patterns. To the extent that the location and size of a watercraft access facility contributes to increased watercraft access to areas of importance to manatees such as aggregation areas, travel corridors, feeding areas, resting areas, calving areas, and other areas where manatees occur, these facilities can indirectly cause or contribute to the incidental take of manatees by watercraft. Given that over one million watercraft use Florida waters each year, the relative effect of any particular watercraft access facility on watercraft traffic volume or travel is generally small statewide. However, the cumulative effects of constructing many facilities substantially influences the number of watercraft on Florida’s waters and the travel patterns of those vessels, which can substantially influence interactions between watercraft and manatees. Additionally, in certain situations the construction of a new watercraft access facility may substantially influence watercraft travel patterns and volume locally. As such, the authorization, funding, and/or operation of watercraft access facilities by government agencies can cause or contribute to incidental take of manatees.

Determination of Negligible Impact

The MMPA states that, "it is the sense of the Congress that [marine mammals] should be protected and encouraged to develop to the greatest extent feasible commensurate with sound principles of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem." Section 2 of the MMPA also identifies a specific goal of maintaining marine mammal stocks within their Optimum Sustainable Population (OSP) level. However, it is also clear that Congress did not intend that the level of incidental take must in every case be reduced to zero. Section 101(a)(5)(A) clearly indicates that some level of incidental take of even depleted marine mammals can be authorized as long as the impact is negligible.

In the 1986 amendments to the MMPA, Congress expanded the provisions for the authorization of incidental take of marine mammals related to activities other than commercial fisheries by allowing authorization of take of depleted species as well as non-depleted species. Section 3 of the MMPA defines a "depleted" species as one that is either below its OSP or is listed as endangered or threatened under the ESA. The Florida manatee is listed as an endangered species under the ESA, and therefore, 

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all four stocks are categorized as depleted under the MMPA.

The NOAA-Fisheries and the Service issued final rules implementing the 1986 amendments to the MMPA on September 29, 1989 (54 FR 40338). These regulations define "negligible impact" as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 18.27(c)). The preamble to these regulations described the analytical framework the agencies would use when making negligible impact determinations. For non-depleted stocks (i.e., stocks that are within the range of OSP) the agencies stated that a finding of negligible impact could only be made if the specified activities are not likely to reduce the stock below its OSP. However, it was also noted that not all takings that do not reduce the population below OSP would be considered negligible. The agencies explained that--"healthy marine mammal populations that have reached an equilibrium level usually experience fluctuations in population numbers within some normal range due to a variety of environmental and biological factors. Such fluctuations may involve short-term population declines that do not pose a risk to the stocks remaining within the limits of OSP. We believe that minimal impacts on a healthy stock caused by incidental taking can still be considered negligible if such taking does not cause the population to fluctuate beyond normal limits. In other words, for a population stock that is at its OSP level, slight impacts on the stock resulting from incidental take do not rise to the level of ‘adverse effects’ on annual rates of recruitment or survival if the population stock is maintained at essentially the same level."

With respect to depleted stocks, the preamble to the 1989 regulations states-- "In order to make a negligible impact finding, the proposed incidental take must not prevent a depleted population from increasing toward its OSP at a biologically acceptable rate." In explaining what would constitute a "biologically acceptable rate" of population increase, the agencies stated that in order to be considered "negligible" the effects of the authorized take must have no significant effect on annual rates of recruitment or survival. The population growth rate for any species is the result of all births during the year (recruitment) minus all deaths (animals that do not survive). As such, to be considered "negligible," authorized incidental take must not affect annual rates of recruitment or survival in such a way as to significantly affect the population growth rate of a depleted stock. The analytical framework made clear that it was not necessary to demonstrate that an authorized level of take would have "no effect" on a stock’s rate of increase toward OSP, but only that the take would not significantly affect the long-term population trend.

The language of the MMPA and its implementing regulations provide qualitative descriptions of the goals with respect to take of marine mammals. For the purposes of this rulemaking, we translated these goals into standards against which the effects of the specified activity may be measured. The means of making the best use of available scientific information regarding the Florida manatee in our negligible impact determination was discussed at the April 2002 Manatee Population Ecology and Management Workshop. We provided the expert panelists convened at the workshop with background information including a summary of the existing statute and regulations, rulemaking criteria and timeframes, and methods previously considered, and the topic was discussed at a general session of the Workshop. We also presented new information at the April 2002 Workshop regarding the status of the manatee population and the status of manatee research. Additionally, we presented new population models and analyses that showed substantial promise for improving our ability to assess the status of manatee stocks, and to predict and monitor the effects of various factors, including human factors, on manatee populations.

Following the April 2002 Workshop, we held a meeting of scientists from the U.S. Geological Survey (USGS), the Service, and other organizations with specific expertise in population modeling and marine mammals to further clarify the Workshop discussions. Based on our review of the legislative history of the MMPA, its implementing regulations, existing guidance, past incidental take rulemakings, the scientific literature, and the results of the Workshop and the follow-up meeting, we were able to develop a solid conceptual framework upon which to build our negligible impact determination.

In reviewing existing guidance and previous rulemakings, we note that participants at the 1994 Potential Biological Removal (PBR) Workshop (Barlow et al. 1995) agreed that the term "insignificant" in the Zero Mortality Rate Goal for commercial fisheries (as stated in section 101(a)(2) of the MMPA) was relative to the biological significance of the incidental take. They further agreed that an "insignificant" level of mortality was a level that would have a "negligible" impact on a given marine mammal stock. In terms of stocks that are depleted (i.e., population levels below OSP), it is generally accepted that the large majority of annual net productivity must be reserved for the recovery of the stock to its OSP level, and that only a small portion should be allocated for incidental take, so that human-related take does not significantly increase the time needed to reach OSP. Therefore, based on our interpretation of the MMPA, its implementing regulations, previous incidental take rulemakings, and our current understanding of manatee population dynamics, we concluded that in order for us to determine that the allowable level of human-related incidental take would have a "negligible impact" we must be reasonably certain that the take would not significantly increase the time needed to achieve OSP.

For this rulemaking we must ensure that the total taking authorized over the life of the rule has no more than a negligible impact on the stocks through effects on annual rates on recruitment or survival, so the species will continue to increase toward OSP at a biologically acceptable rate. As such, in order to find that watercraft-related incidental take is having a negligible impact on each manatee stock we must find that:

1. There is reasonable certainty that authorized incidental take will not significantly increase the time needed to reach OSP.

The PBR formula was suggested as an available method for quantitatively making our negligible impact determination for this rule. The PBR formula was included in sections 117 and 118 as part of the 1994 amendments to the MMPA to allow resource managers to conservatively estimate an acceptable amount of human-related incidental take of marine mammals relative to commercial fishing operations. We do not believe it was intended for assessing incidental take relative to the "negligible impact" standard prescribed by the MMPA for activities other than commercial fishing, which was added to the MMPA in 1981. Additionally, the PBR formula is a simplified model that uses limited data and default values that we believe are not appropriate for determining the negligible impact threshold 

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for manatees. There is a relatively large body of data regarding the Florida manatee stocks which is not utilized in the PBR formula. As such, the use of the PBR formula for management decision-making related to manatees would not enable managers to use the best available scientific information.

As stated previously, our negligible impact standard is that there is reasonable certainty that the authorized level of incidental take would not significantly increase the time needed to reach OSP. Determining the OSP level for a species or stock requires an understanding of the carrying capacity of the environment for that species or stock and the maximum net productivity level. These values are currently unknown for the Florida manatee; therefore, we can not directly assess the status of the population relative to OSP, or estimate the amount of time it may take for the population to reach OSP. However, our regulations do not require a formal determination of OSP in order to make a negligible impact finding. Rather, one need only establish that the total take would not "significantly reduce the increase of that population" and would not prevent ultimate achievement of OSP (54 FR 40341).

The Florida Manatee Recovery Plan (U.S. Fish and Wildlife Service 2001) developed quantifiable demographic benchmarks for determining when recovery has been achieved for purposes of the ESA. The demographic benchmarks were based on published estimates of survival, reproduction, and population growth rate. These benchmarks are--(1) statistical confidence (95 percent) that the average annual rate of adult manatee survival is 90 percent or greater; (2) statistical confidence that the average annual percentage of adult female manatees accompanied by first or second year calves in winter is 40 percent or greater; and (3) statistical confidence that the average annual rate of population growth is equal to or greater than zero. The Florida Manatee Recovery Plan states that these benchmarks must be based on estimates from at least a twenty-year data set. Twenty years was thought to encompass approximately two manatee generations, which was deemed to be a sufficient data set to ensure that estimated benchmark rates were reflective of genuine population trends as opposed to short-term fluctuations.

Adult survival is the most influential factor determining manatee population dynamics (Eberhardt and O'Shea 1995, Marmontel et al. 1997, Langtimm et al. 1998). A one percent increase in adult survival rate results in a one percent increase in growth rate; no other life-history parameter has this strong an effect (Eberhardt and O'Shea 1995). While manatee population growth is less sensitive to changes in reproductive rates than adult survival rates (Eberhardt and O'Shea 1995, Marmontel et al. 1997), annual variation in reproductive rates might be greater than annual variation in survival rates, and may reflect demographic pressures not captured by survival rate, so the Manatee Population Status Working Group concluded that reproductive rates are another useful indicator of manatee population status. The population growth rate benchmark was selected to ensure the manatee population continues to increase toward OSP, regardless of any uncertainty regarding the relationship between the other two benchmarks and the overall population trend.

As stated above, it was concluded in the Florida Manatee Recovery Plan that the Florida manatee population could be considered to be "healthy" and able to sustain itself after the demographic benchmarks were met for all four stocks based on at least a 20-year data set. Assuming that none of the stocks were severely depleted when data collection relative to the demographic benchmarks began (in the late 1970s and 1980s), twenty years of continued growth at the benchmark rates would in all likelihood result in stocks that are within or near the range of OSP. As such, we have determined that it is reasonable to assume that achievement of the demographic benchmarks will result in a population that is within or near the range of OSP, and that the negligible impact threshold would be that level of incidental take that does not significantly increase the time needed to achieve the demographic benchmarks.

We examined the current data set and analyses of survival rates, and recruitment, and reviewed population growth rate projections generated by the model presented by Runge et al. at the April 2002 Manatee Population Ecology and Management Workshop (Runge unpubl. analysis), which incorporate the historically observed level of watercraft-related incidental take. This enabled us to qualitatively assess the status of the four stocks relative to the demographic benchmarks, and determine whether anticipated levels of watercraft-related take during the five-year period of the rule are likely to significantly increase the time needed for the stocks to reach OSP. These assessments were based on a twenty year data set including 15 years of historical data and projections (including levels of watercraft-related take) for the five-year period of the rule. For the Southwest population, for which a 15 year historical data set is not available, we made projections based on the available historical data and the long-term trends of the survival rates (which incorporate watercraft-related take), recruitment, and population growth rates of the 15 year period necessary to run our assessment

For each of the stocks, our projected information covered a twenty-year period ending with the five-year period of this rule. Using these projections, we qualitatively assessed the status of the four stocks relative to the demographic benchmarks. As part of this analysis we considered effects of activities that would occur within the five-year period of this rule but that may not manifest themselves until after the five-year period. Due to life history characteristics, the Florida manatee population may experience a delayed response to changes in mortality rates. Therefore, effects resulting from incidental take may not produce noticeable changes during the five-year period, but could affect the ability of the stock to maintain itself within OSP or affect the rate of increase toward OSP over a longer term. We also assessed the availability and relative effectiveness of various types of mitigating measures.

In addition, separate from this rulemaking process, we are working to ensure that we meet the MMPA’s long term goal of maintaining marine mammal populations within OSP. The Florida Fish and Wildlife Conservation Commission (2002b) noted that manatees have a low reproductive rate, low intrinsic population growth rates, low genetic variability, and high vulnerability to stochastic and epizootic events such as extreme cold and red tide. The Florida Marine Research Institute (2002) also noted that long term threats to the Florida manatee related to natural and man-made warm water sites are likely to be felt over the next 50 to 100 years. As such, we have the established standards to measure the stocks’ relationship to OSP over the longer term. These objectives are stated as follows:

2. There is reasonable certainty that the manatee stock will remain within OSP for 50 years; and

3. There is reasonable certainty that the manatee stock will remain within OSP for 100 years.

The determinations in this proposed rule are based on our review of the best available data, and we believe this method is adequate for making this negligible impact determination. We believe that it may be possible to refine this analysis based on a modeling effort

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that is currently being developed. As stated above, in terms of stocks that are depleted (i.e., population levels below OSP), it is generally accepted that the large majority of annual net productivity must be reserved for the recovery of the stock to its OSP level, and that only a small portion should be allocated for incidental take, so that human-related take does not significantly increase the time needed to reach OSP. It is also generally accepted that the "small portion" of net productivity authorized for removal due to human causes should not exceed ten percent of annual net productivity, and that for depleted stocks of marine mammals generally, incidental take should not increase the time needed to reach OSP by more than ten percent (Wade 1994, Wade and Angliss 1997).

The concept of increasing the time needed to achieve OSP by not more than ten percent is embodied in the PBR guidelines and is consistent with recommendations submitted to the NOAA-Fisheries by the Marine Mammal Commission in 1990 regarding the regulation of incidental take related to commercial fishing operations (65 FR 35904). This concept also appeared in the 1992 legislative proposal by NOAA-Fisheries, which became the basis for the 1994 amendments to the MMPA (Wade 1998).

Because most marine mammal species, including manatees, are difficult to observe and study, it is difficult to collect data of sufficient quality to allow detection of statistically significant changes in population parameters such as abundance or growth rate within the timeframes and with the precision needed for effective management (Wade 1998). As such, assessing the probability of a given action (or set of actions) causing a greater than ten percent increase in time needed to achieve OSP provides a reasonable standard, whereas attempting to quickly detect statistically significant changes in population parameters is impracticable.

The negligible impact standard established above could be restated quantitatively as follows:

1. There is 95 percent certainty that authorized incidental take will not increase the time needed to reach OSP by more than ten percent;

Additionally, the long term standards established above could be restated as follows:

2. There is a 95 percent probability that the manatee stock will be within OSP in 50 years; and

3. There is a 99 percent probability that the manatee stock will be within OSP in 100 years.

Regarding the probabilities associated with the above standards, the 95 percent probabilities for the first two standards were chosen to be consistent with the modeling approach used by Wade (1994) for selecting appropriate values for the PBR equation variables. We selected a higher probability value for the third standard to reflect the relative importance of our long term desire to ensure that each stock remains within OSP.

New population models and analyses were presented at the April 2002 Manatee Population Ecology and Management Workshop that clearly represent state-of-the-art analyses of manatee population status. Additionally, new data were presented regarding important manatee life history parameters; particularly, survival estimations for various life stages. In reviewing the models and analyses presented, it was decided that the model presented by Runge et al. (2002) was most suitable for adaptation for use in our negligible impact determination. This model was determined to be particularly well suited for use in the negligible impact determination because it utilizes the best available scientific information regarding Florida manatee survival estimates. It also utilizes the best available information regarding reproductive rates (recruitment) in Florida manatees. The fact that the model is built on estimates of survival and recruitment also corresponds directly to the regulatory definition of "negligible impact."

The Negligible Impact Model (model), based on the work of Runge et al. (2002), is described in detail in Appendix I of the draft Environmental Impact Statement. The model is based on female manatee population dynamics. The female manatee population is separated by age and reproductive status. Survival and reproductive probabilities are defined for each class. The model projects population trends for each of the four manatee stocks based on repeated simulations that incorporate environmental and demographic variability, as well as varying levels of human-related take.

Discussions with the model’s author indicated that the model could be modified to allow for estimation of the effects of varying levels of human-related incidental take on population structure and growth. Projections can be made assuming that no human-related take occurs. This establishes the baseline condition for purposes of comparison. In other words, in the absence of any incidental take, the four stocks would be expected to achieve the demographic benchmarks as quickly as possible. This baseline can then be compared to projections based on various levels of incidental take to determine at what point such take causes a greater than ten percent increase in the time needed to achieve the demographic benchmarks. Repeated simulations are performed to create a distribution of population projections from which the probability of achieving the benchmarks for a given level of take can be calculated.

In examining the possibility of modeling the time needed to achieve the demographic benchmarks, we realized that the Negligible Impact Model may indicate, under certain foreseeable scenarios, that the demographic benchmarks cannot be achieved even in the absence of incidental take. As mentioned above (see "The Status of the Florida Manatee" section), a substantial portion of the Florida manatee population currently depends on industrial warm water outfalls for survival during cold weather. It is likely that these sites will cease operation over the next 100 years; although we do not believe the loss of any significant warm water sites is currently imminent or likely over the term of this proposed rule. If alternative warm water sites are not available, the carrying capacity of the environment for manatees could be substantially reduced. This could substantially affect future demographic factors such as survival rates and population growth rates, even if no other human-related take occurs. It would also affect the OSP level for the species. The model will be used to assess scenarios based on the assumption of a declining carrying capacity as well as scenarios in which the carrying capacity is assumed to remain unchanged. If model results indicate that the demographic benchmarks cannot be maintained over 50 and 100 years for reasons unrelated to watercraft-related incidental take, we will reassess our assumed relationship between the demographic benchmarks and OSP, and base our final determination on the best available scientific information.

If our analysis indicates that the currently observed level of incidental take exceeds the negligible impact standards (i.e., if current incidental take levels are increasing the time needed to achieve the demographic benchmarks by more than ten percent and/or are likely to prevent the stocks from continuing to meet the benchmarks over 50 and 100 years), then we would assess whether mitigating measures (discussed below) are available that could reduce incidental take to the negligible impact level.

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We have identified five categories of mitigating measures that government agencies can implement to reduce and control watercraft-related incidental take. In decreasing order of effectiveness these include--(1) establishment of speed zones and protected areas to control watercraft speeds and/or restrict access to areas of importance to manatees; (2) law enforcement to ensure compliance with restrictions established pursuant to (1); (3) education to improve public understanding of manatee conservation needs and enhance compliance with manatee protection measures; (4) review of proposals to construct watercraft access facilities with a view toward minimizing the effects of such facilities on manatees and manatee habitat; and (5) other measures that are available or may become available over the period of this rule. Although the categories vary in terms of their relative effectiveness, they cannot be viewed as completely separate measures because the effectiveness of each depends on others. For example, speed zones must be enforced and the public must be informed and educated about the zones through appropriate signage and outreach in order for the zones to provide effective protection of manatees.

1. Watercraft Regulations--As previously stated (see Watercraft-Related Impacts to the Florida Manatee) watercraft operation and speed are the primary factors contributing to collisions with manatees. As such, government programs that regulate watercraft speeds and access to areas of importance to manatees have the greatest potential to control watercraft-related incidental take. At high speeds, watercraft operators are less able to detect and avoid objects in the path of the vessel (such as manatees) and manatees have less time to detect and avoid the on-coming vessel. Additionally, when collisions do occur, high-speed collisions are more likely to cause death or serious injury than low speed collisions. Due to these facts, Federal, State and local officials have sought to limit watercraft speeds in areas where manatees are most likely to occur to afford both manatees and boaters time to avoid collisions.

In addition to the threat posed by collisions with watercraft, the mere presence of watercraft can cause harassment of manatees in certain situations; most notably at warm water aggregation areas, where large numbers of manatees congregate in small areas in order to stay warm during winter months. Disturbance of manatees at these sites can cause manatees to leave the warm water area, exposing them to potentially harmful cold water conditions. To address this threat, Federal, State and local managers have restricted human access to many important warm water sites during winter months.

Watercraft speed and access are controlled through--(a) establishment of watercraft speed zones and restricted access areas, including posting of appropriate signage; and (b) regulation of specific marine events; particularly high-speed watercraft races. Federal, State, and local government agencies have the authority to designate speed zones and restricted access areas within waters accessible to manatees. At the Federal level, we designate "manatee protection areas" pursuant to 50 CFR 17.103. We may, by regulation, establish manatee protection areas whenever there is substantial evidence showing such establishment is necessary to prevent the taking of one or more manatees. We may establish two types of manatee protection areas--manatee refuges and manatee sanctuaries. A manatee refuge, as defined in 50 CFR 17.102, is an area in which we have determined that certain waterborne activities would result in the taking of one or more manatees, or that certain waterborne activities must be restricted to prevent the taking of one or more manatees, including but not limited to a taking by harassment. A manatee sanctuary is an area in which we have determined that any waterborne activity would result in the taking of one or more manatees, including but not limited to a taking by harassment. A waterborne activity is defined as including, but not limited to, swimming, diving (including skin and SCUBA diving), snorkeling, water skiing, surfing, fishing, the use of water vehicles, and dredging and filling activities.

State manatee protection rules are established by the FWC to restrict the speed and operation of vessels where necessary to protect manatees from harmful collisions with vessels and from harassment. In areas that are especially important to manatees, the State’s rules can prohibit or limit entry into an area as well as restrict what activities can be performed in the area. The FWC is authorized to adopt these rules by the Manatee Sanctuary Act (370.12(2), Florida Statutes). The rules appear in Chapter 68C-22 of the Florida Administrative Code (FAC).

Local governments can also establish manatee protection zones through the adoption of a local ordinance. These zones must be approved by FWC before they can take effect, as required by Chapter 370.12(2)(o), F.S. The only other limitation on a local government's ability to establish manatee protection zones is that local zones cannot include waters within the main marked channel of the Florida Intracoastal Waterway or waters within 100 feet. The FWC manatee protection rulemaking process is described in rule 68C-22.001, FAC.

The goal with respect to the establishment of watercraft speed zones and restricted access areas is to identify areas of importance to manatees, including wintering sites, travel corridors, feeding areas, calving areas, and other areas of similar importance, and to ensure that such areas are protected with appropriate designations. Designations should be consistent at a regional level and configured as simply as possible to facilitate public understanding and compliance. Signage for all designated areas should be consistently and appropriately worded and located in order to enhance compliance in all manatee protection areas.

Marine events are regulated at the Federal level by the U.S. Coast Guard (USCG), in consultation with us. Marine events include watercraft races, ski shows, fishing tournaments, boat parades and events such as fireworks shows, which can attract large numbers of spectators in watercraft. Marine events involving high-speed activities are of primary concern as it relates to threats to manatees. These events generally include races, waterskiing and fishing tournaments with high-speed starts or other high-speed operations. The USCG is authorized to issue regulations to promote the safety of life on navigable waters during regattas and marine parades (33 U.S.C. 1233). This authority includes events on, in, and under the water.

Whenever a marine event is planned by an individual or an organization (the sponsor) which, by its nature, circumstances, or location, will restrict navigation or otherwise introduce extra or unusual hazards to the safety of life on navigable waters of the United States, the sponsor must submit an application to the USCG for review and approval. The application is received and investigated by respective district, group, or unit offices that have authority to permit or deny the proposed event. Current USCG policy allows issuing authorities to add conditions or deny permits for marine events based on environmental concerns (COMDTINST 16751.3A, Regattas and Marine Parades). In Florida, sponsors apply to USCG group offices in Key West, 

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Mayport, Miami, and St. Petersburg. USCG reviewers investigate each application and, when appropriate and as required under section 7 of the ESA, request consultation with us when it is apparent that the proposed event may affect manatees or other listed species. The USCG also coordinates with the Florida Department of Environmental Protection for events held in State waters. Through these review processes it is generally recommended that marine events be held in areas and at times when there is little or no likelihood of encountering manatees. When this is not possible, it is either recommended that the event not be held or that certain measures be adopted as a condition of the USCG permit to minimize the effect of the event on manatees and manatee habitat. These measures include the use of manatee watches, designating slow speed areas for the duration of an event, education of event participants and spectators, and other measures.

2. Enforcement-- In order to be effective in controlling watercraft-related incidental take, there must be a high level of compliance with established watercraft speed zones and restricted access areas. Enforcement is an important element of compliance. Ideally, our goal is to achieve full compliance with manatee protection regulations. Studies indicate that in the absence of law enforcement roughly 54 to 63 percent of boaters are in compliance with posted speed zones; while 20 to 51 percent are in technical non-compliance (exceeding posted speeds by one speed category or any level of excessive speed for a relatively small distance within the posted area), and the remainder are in blatant non-compliance (exceeding posted speeds by greater than one speed category for a significant portion of the posted area) (Gorzelany 1996, 1998, 2001; Shapiro 2001). Studies have found, however, that the level of boater compliance is variable depending on location. For example, Gorzelany (1998) found overall boater compliance for several sites in the Caloosahatchee River averaged 57.3 percent, but ranged from a low of 12 percent to a high of 77 percent. In the presence on law enforcement, Shapiro (2001) recorded a compliance rate of up to 89 percent. Gorzelany (2001) observed an increase of compliance from 29-44 percent to 64-73 percent in the presence of law enforcement. Our proposed compliance goal, based on recent work by Mote Marine Laboratory and Florida Marine Research Institute (Gorzelany 1996, 1998, 2001, Shapiro 2001), is to achieve 70 percent or greater full compliance and no more than ten percent blatant non-compliance levels throughout the State, as determined by independent monitoring studies. Based on the above-mentioned studies, this level of compliance appears to be achievable, while also representing the upper range of observed compliance levels in the presence of enforcement. We recognize that this goal does not assess the effects of other important aspects of compliance. For example, in situations where there are very high number of watercraft operating in an area with high numbers of manatees, achieving the above compliance standard could still lead to a high number of non-compliant watercraft operating in a manner that poses a threat to manatees.

Enforcement of manatee protection rules is provided by officers of the Service, FWC, USCG, and local law enforcement agencies, as well as the courts. To ensure compliance with the waterway speed and access rules and with manatee harassment provisions, enforcement capabilities must be expanded and coordinated. Although efforts have increased significantly during the past few years, manatee enforcement operations still must be expanded in both geographic scope and frequency. To meet these needs, Federal and State enforcement agencies should take all possible steps to increase funding and heighten agency priority for manatee-related law enforcement activities. Those activities should be maintained at levels commensurate with those of vessel traffic, watercraft-related manatee deaths, and added enforcement responsibilities. To carry out enforcement activities as efficiently and cost-effectively as possible, involved agencies should coordinate enforcement efforts. In addition, enforcement agencies should review and assist as much as possible with the development of new manatee protection statutes and regulations, the posting of manatee regulatory signs, enforcement training seminars, studies to monitor regulatory compliance, and actions by the judiciary to prosecute violations.

3. Watercraft Operator Education/Awareness-- In addition to signage and enforcement, watercraft operator education and awareness is essential to achieving greater compliance within and understanding/recognition of manatee protection areas, as well as the general public’s understanding of manatee conservation issues. A study by the Environmental Protection Agency (EPA) found that the more the EPA invested in outreach and education through various avenues, including press releases, trade articles, and plain English brochures, the greater the likelihood that companies would be informed about environmental regulations and be likely to comply (Eustis 1993). Many manatee and habitat education programs and materials are produced and made available to school systems as well as the general public and user groups; however, such efforts need to be continually evaluated and updated. This information must be clear, consistent, concise, and readily available to the general public and target user groups. As such, Federal and State agencies should cooperatively develop uniform multi-media educational programs/curricula for the general public and schools, and ensure that these materials are provided to all watercraft operators utilizing Florida waters.

The success of manatee/habitat conservation efforts requires identification of target audiences and locations. Target audiences and key locations should be prioritized by need, i.e., areas where manatee mortality and injury are highest, areas where manatee/human interaction occurs frequently, and areas where habitat is most at risk. These areas include, but are not limited to, high watercraft use areas, boat ramps, manatee aggregation sites, manatee observation areas, fishing piers, seagrass areas, and other areas identified as having important habitat features (e.g., fresh water areas and areas used for resting and/or calving). It is also important that some materials explicitly target specific user groups, such as boaters in areas of high watercraft mortality.

4. Watercraft Access Facility Siting-- The siting and construction of watercraft access facilities can be directed through local zoning, in the form of facility siting components of county manatee protection plans (MPPs), or through Federal and State permitting processes.

A. Watercraft Access Facility Siting Plans -- Development of MPPs is mandated by the Florida Manatee Sanctuary Act (Chapter 370.12, F.S.). Watercraft access facility siting plans, as components of comprehensive county MPPs, are excellent tools for guiding long-term watercraft access facility development and anticipating and addressing the cumulative impacts of such facilities. By anticipating and planning for the future access needs at a county-wide level, the cumulative effects on manatees and manatee habitat can be anticipated and mitigated. It is our view that this forward-looking approach is preferable to the more reactive approach or dealing with the effects of such facilities on a case-by-case basis. Under the Florida Manatee

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Sanctuary Act, 13 counties are mandated to develop MPPs by July 1, 2004. The FWC is to designate any other county where there exists a substantial risk to manatees by January 1, 2005, and those counties are to develop MPPs by July 1, 2006.

B. Permit review -- The agencies involved in the authorization of watercraft access facilities and their regulatory processes are described above (see Specified Activities). Through these review processes, the potential adverse effects to manatees or manatee habitat are identified, and if necessary permits can be specifically conditioned to avoid the adverse impacts, or where appropriate, denied. Typical permit conditions include limitations on the number of slips, and avoidance or minimization of impacts to sea grasses and other habitat features. Additionally, standard manatee construction conditions have been developed that are utilized by the Corps as well as State regulatory agencies to minimize the direct effects of watercraft access facilities on manatees and manatee habitat. These conditions include education of construction personnel regarding manatee awareness; control of construction-related vessel speeds; use of construction equipment such as siltation barriers that avoid manatee entrapment; stand-off distances from manatees sighted in construction area; and manatee awareness signage. These standard conditions and other conditions developed through the permit review process have been effective in minimizing the direct effects of watercraft access facilities and their construction on manatees and manatee habitat.

5. Technological and Other Mitigating Measures-- Devices such as propeller guards have been used in limited circumstances to reduce the threat of manatee death or injury. Other technologies have been discussed or proposed; however, none have yet been demonstrated to be effective or practical. The FWC has recently funded additional research into various types of technological measures to reduce watercraft-related take of manatees, and any such measures that are demonstrated by this research, to be effective and practicable to implement during the period of this rule will be considered along with the mitigating measures described above. This would occur through future review and renewal of agency LOAs.

Based on our application of the above described method for assessing the status of Florida manatee stocks relative to the "negligible impact" standards and our review of the existing and potentially available/necessary mitigating measures, we have made the following findings for each of the four stocks. As stated above, these determinations are based on our review of the best available data, and we believe this method is adequate for making this negligible impact determination. It may be possible to refine this analysis for the final rule based on a modeling effort that is currently being developed.

1. Upper St. Johns River Stock-- Adult survival for this Stock has been calculated to be 96.1 percent with a 95 percent confidence interval range from 90.0 to 98.5 percent (Langtimm et al. 1998), based on data collected between 1977 and 1993. It is estimated that 41 percent of females at the winter sites are accompanied by first or second-year calves (U.S. Fish and Wildlife Service 2001). It is also estimated that this stock is growing at a rate of 6.1 percent per year, with a 95 percent confidence interval between 1.7 and 8.7 (Runge, unpubl. analysis). All three estimates exceed the levels indicated in the demographic benchmarks, which indicates a healthy and growing population, and provided the factors affecting this population remain essentially the same (including continued implementation of existing conservation measures), we anticipate that the stock will continue to increase toward OSP at a biologically acceptable rate.

Existing conservation measures in this area include an adequate system of watercraft speed zones that have been implemented by the FWC. There is also a seasonal motorboat prohibited zone at Blue Spring, the primary wintering site for this stock. These zones are enforced by local, State and Federal law enforcement. Shapiro (2001) reported 85 percent compliance with speed zones near Blue Spring in the presence of law enforcement. There are no County MPPs in place within this Stock; however, Volusia County is in the process of preparing one. In the absence of county MPPs, applications for construction of watercraft access facilities are reviewed on a case-by-case basis, and effective measures to reduce impacts on manatees will be required. Other measures such as boater education and regulation of marine events are also carried out within this Stock. As reflected by rates that exceed the demographic benchmarks, these measures are effectively controlling the amount of watercraft-related incidental take. Our analysis of historic levels of watercraft-related incidental take, levels of take anticipated during the five-year period, and the effectiveness of existing measures indicates that the anticipated take during the five-year period will not significantly affect rates of recruitment or survival. Provided existing measures continue to be implemented we expect this Stock to continue to perform at the currently observed level, and there will be no significant delay in achieving OSP. Therefore, we find that watercraft-related incidental take is having a negligible impact on this Stock. Separate from our negligible impact finding, we also find no evidence to suggest that the currently observed levels of watercraft-related incidental take will adversely affect long term population trends.

2. Northwest Stock-- Adult survival for this Stock has been calculated to be 96.2 percent with a 95 percent confidence interval range from 95.3 to 97.2 percent (Langtimm et al., unpubl. analysis), based on data collected between 1981 and 2000. It is estimated that 43 percent of females at the winter sites are accompanied by first or second-year calves (U.S. Fish and Wildlife Service 2001). It is also estimated that this Stock is growing at a rate of 5.0 percent per year, with a 95 percent confidence interval between 3.2 and 6.8 (Runge, unpubl. analysis). All three estimates exceed the levels indicated in the demographic benchmarks, which indicates a healthy and growing population, and provided the factors affecting this population remain essentially the same (including continued implementation of existing conservation measures), we anticipate that the stock will continue to increase toward OSP at a biologically acceptable rate.

As reflected through rates that exceed the demographic benchmarks, the existing measures that are in place in this stock are effectively controlling the amount of watercraft-related incidental take. These measures include implementation of the Citrus County MPP. This plan was adopted in 1993 and includes, among other components, an adequate set of speed zones in areas of importance to manatees. Additionally, we have established several manatee protection areas that prohibit and control watercraft access to important wintering sites within the County. One of these sites is also designated as a seasonal watercraft prohibited area by the FWC. The speed zone and restricted access area regulations are enforced by County, State and Federal law enforcement.

The Citrus County MPP also includes a watercraft facility siting component 

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that establishes effective criteria for the location and construction of such facilities within the County. The MPP has been adopted by local, State, and Federal agencies for evaluating the effects of proposed watercraft access facilities on manatees and manatee habitat. Other measures, such as boater education and regulation of marine events, are also carried out within this Stock.

No other counties within this stock have adopted MPPs and no other speed zones or restricted access areas have been established for manatee protection. However, manatee use of the waters outside Citrus County is limited to the warm season, and this portion of Florida is much less densely populated than other areas of Florida. As such, there is much less watercraft traffic and the threat of collisions between boats and manatees is low. Our analysis of historic levels of watercraft-related incidental take, levels of take anticipated during the five-year period, and the effectiveness of existing measures indicates that the anticipated take during the five-year period will not significantly affect rates of recruitment or survival. Provided existing measures continue to be implemented we expect this Stock to continue to perform at the currently observed level, and there will be no significant delay in achieving OSP. Therefore, we find that watercraft-related incidental take is having a negligible impact on this Stock. Separate from this negligible impact determination, we also find no evidence to suggest that the currently observed levels of watercraft-related incidental take will adversely affect long term population trends.

3. Atlantic Stock-- Adult survival in this Stock has been calculated to be 94.3 percent with a 95 percent confidence interval range from 92.3 to 96.2 (Langtimm et al., unpubl. analysis), based on data collected between 1984 and 2000. The percentage of adult females with first and second-year calves has been estimated to be 42 percent (U.S. Fish and Wildlife Service 2001). The annual population growth rate has been calculated to be 3.2 percent with a 95 percent confidence interval range between 0.3 and 5.7 (Runge unpubl. analysis). These three estimates are close to the demographic benchmarks. However, the number of manatees killed by watercraft increased at a rate of 5.5 percent per year between 1980 and 1999 (U.S. Fish and Wildlife Service 2001), which is higher than the estimated population growth rate. Additionally, Langtimm et al. (unpubl. analysis) found evidence for a decline in adult survival in the Atlantic Stock in the latter part of a 16-year time period. This apparent trend is currently being studied further with other statistical methods (Langtimm, personal communication).

Numerous manatee protection measures are currently in place for the Atlantic Stock. Speed zones and/or restricted access areas have been established in Duval, Volusia, Brevard, Indian River, St. Lucie, Martin, Palm Beach, Broward, and Miami-Dade counties. We recently implemented Federal manatee protection areas at two sites in Brevard County, and the FWC has recently enacted new speed zones in Brevard and Indian River counties. MPPs have been approved by the FWC for Miami-Dade, Duval, Indian River and St. Lucie counties. We believe that manatee protection measures recently implemented by the FWC and us in the Atlantic Stock as well as the additional measures described below will reduce levels of incidental take in the Atlantic Stock to the negligible impact level.

In order to determine where additional mitigating measures need to be implemented, we have examined mortality trends within this Stock in an attempt to focus implementation of mitigating measures in those areas with continuing histories of high levels of watercraft-related incidental take. The analysis conducted by Flamm (2002) identified three primary manatee mortality concentration areas within the Atlantic Stock–(1) the Duval County area, (2) the Volusia-Brevard County area, and (3) Palm Beach-Broward County area. The best available information indicates that in order to reduce incidental take to a level that would have a negligible impact on this stock, mitigating measures must be focused in these areas.

Within regard to the Duval County area, the FWC approved the Duval County MPP in 1999, which includes speed zones, facility siting criteria, education, and enforcement components. We have determined that the configuration of the speed zones is minimally acceptable, and the recent decision by the County to improve signage of the zones on the St. Johns River will improve manatee protection in this area. Implementation of the Duval County MPP should reduce manatee mortality in this area. Shapiro (2001) observed a 56 percent compliance rate and a seven percent blatant non-compliance rate at a site in Duval County, indicating that additional mitigating measures in this area should include improved enforcement and boater education efforts.

Within the Volusia-Brevard County area, we believe that the newly enacted speed zones in Brevard County are adequate and appropriate, and given that Brevard County has historically been the area in the Atlantic Stock with the highest levels of watercraft-related mortality, the new Brevard County zones will substantially enhance protection of the Atlantic Stock. There is a continued high level of watercraft-related manatee mortality in portions of Volusia County, including the Halifax and Tomoka Rivers, and no recent actions have been taken to improve the speed zones in these areas. We believe additional protective measures are needed in these areas.

In addition to improvements in watercraft speed zones, it is likely that efforts are necessary to improve compliance with speed zone regulations. As noted above, Shapiro (2001) observed levels of compliance at sites within the Atlantic Stock that were below our above-stated compliance goal. As such, additional law enforcement and boater education efforts, focused within the above-described manatee mortality concentration areas (Flamm 2002) are considered to be appropriate and necessary mitigating measures to reduce watercraft-related incidental take within the Atlantic Stock.

We are continuously collecting and evaluating information regarding trends in watercraft-related mortality, and as new information becomes available, additional or different specific sites may be identified as being in need of additional protection. It is also possible that additional information could alter our views regarding the adequacy of protection measures in the above-identified areas. However, based on our current assessment of the best available information, implementation of the above-mentioned measures will be effective in reducing watercraft-related incidental take within the Atlantic Stock.

In regard to the review of applications to construct watercraft access facilities, as stated above the preferred method is through the development and implementation of county MPPs, and the use of the facility siting component of those plans to guide local, State, and Federal permit review processes. It is our view that MPPs should be developed and implemented for all counties where the watercraft-related manatee mortality rate for the preceding five years averages one or more manatees. Based on current data, this includes the following counties within the Atlantic Stock--Brevard, Broward, Duval,

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Indian River, Martin, Miami-Dade, Palm Beach, and Volusia. As noted above, MPPs have been approved by the FWC for Miami-Dade, Duval, Indian River and St. Lucie counties. While development of MPPs for the above counties would be an appropriate, and indeed preferable mitigating measure with respect to the effects of watercraft access facilities, we have determined that it is not necessary to ensure that the effects of the authorized activities have a negligible impact on manatees, because until such plans are adopted the effects of watercraft access facilities on manatees and manatee habitat will continue to be assessed and reduced on a case-by-case basis through effective State and Federal regulatory processes, as described above.

In summary, the Atlantic Stock is close to the demographic benchmarks; however, watercraft-related take is high, and it appears that this level of watercraft-related incidental take may affect this stock’s ability to continue to increase toward OSP. Based on this, we conclude that the current level of watercraft-related incidental take is having a greater than negligible impact on this Stock. However, with the continued implementation of existing effective measures along with implementation of the additional mitigating measures described above, we conclude that the total effect of watercraft-related incidental take will have a negligible impact on this Stock. Our analysis of historic levels of watercraft-related incidental take, levels of take anticipated during the five-year period, and the effectiveness of existing and additional measures indicates that the anticipated take during the five-year period will not significantly affect rates of recruitment or survival. Separate from our negligible impact determination, if the apparent recent decline in adult survival is confirmed and continues, it will inevitably lead to a population decline that would adversely affect the long term population trend and prevent the stock from maintaining itself within OSP; however, we conclude that with the continued implementation of existing effective measures along with implementation of the additional mitigating measures described above, the total effect of watercraft-related incidental take will not adversely affect the long-term population trend.

4. Southwest Stock-- Adult survival for this Stock has been calculated to be 90.6 percent with a 95 percent confidence interval range from 86.7 to 94.4 percent (Langtimm et al. unpubl. analysis), based on data collected between 1994 and 2001. There are no reliable estimates of the percent of adult females at the winter sites that are accompanied by first or second-year calves, although we are working with our partners to collect these data. It seems reasonable to assume that the recruitment rate for the Southwest Stock is similar to or lower than observed for the Atlantic Stock. There are no estimates of the population trend for this Stock. However, based on the estimated adult survival rate, it is likely that this Stock is currently declining or is, at best, stable. It seems unlikely that the Southwest Stock is meeting any of the demographic benchmarks at this time, and based on the adult survival estimates, it appears as though considerable improvement will be needed in order to begin to move this Stock toward achieving the demographic benchmarks. Additionally, watercraft-related mortality has increased greatly in recent years. The average annual number of manatee mortalities attributed to watercraft during the past five years (1997 to 2001) was 34.2, compared to 19.0 for the previous five-year period (1992 to 1996), and the number of manatees killed by watercraft increased at a rate of 7.3 percent per year between 1976 and 2002, which is a likely cause of the stable or declining population trend. Further, given the susceptibility of this Stock to naturally occurring mortality events such as red tide, it is possible that this Stock is less capable than other stocks of sustaining itself in the face of high levels of human-related take.

Numerous manatee protection measures are currently in place within the Southwest Stock. Speed zones and/or restricted access areas have been established in portions of Hillsborough, Pinellas, Manatee, Sarasota, Charlotte, Lee, and Collier counties. We recently enacted Federal manatee protection areas at sites in Hillsborough, Pinellas, Sarasota, Charlotte, Desoto, and Lee counties, and the FWC has recently enacted new speed zones in Hillsborough, Manatee, Sarasota, Charlotte, and Desoto counties. A MPP has been approved by the FWC for Collier County. We believe that manatee protection measures recently implemented by the FWC and us for the Southwest Stock will reduce the rate of increase in the number of watercraft-related mortalities.

In considering where additional mitigating measures need to be implemented, we have examined mortality trends within this Stock in an attempt to focus implementation of mitigating measures in those areas with continuing histories of high levels of watercraft-related incidental take. The analysis conducted by Flamm (2002) identified one primary manatee mortality concentration area within the Southwest Stock (i.e., the Charlotte, Lee, Collier County area). Additionally, review of mortality statistics indicate that the number of manatees killed by watercraft in the greater Tampa Bay area (Hillsborough, Pinellas, Manatee, and Sarasota counties) has increased rapidly in recent years. For the period between 1992 and 1996 an average of 4.6 manatees were killed by watercraft in the greater Tampa Bay area each year, whereas an average of 8.6 manatees per year were killed by watercraft between 1997 and 2001. It is our view that in order to reduce incidental take to a level that would have a negligible impact on the manatee, mitigating measures must be focused in these areas.

Within the greater Tampa Bay area, substantial efforts have been made to improve manatee protection by local governments, and recently by the FWC and us; however, large areas of these bays that are of importance to manatees remain unprotected. We understand that the FWC will begin to prepare a rulemaking proposal for Tampa Bay in the near future. It is our view that implementation of additional protection measures in Tampa Bay, Old Tampa Bay, and Hillsborough Bay are appropriate and necessary mitigating measures to reduce watercraft-related incidental take within the Southwest Stock.

Speed zones for manatee protection have been established only in very limited portions of Manatee County. There are no significant wintering sites in Manatee County. However, waters throughout the county receive considerable use by manatees; particularly Terra Ceia Bay, Anna Maria Sound, Sarasota Bay, the Manatee River and the Braden River. Recent enactment of speed zones in Terra Ceia Bay by the FWC will benefit manatees. It is our view that implementation of additional protection measures in Manatee County are appropriate and necessary mitigating measures to reduce watercraft-related incidental take within the Southwest Stock.

Within the Charlotte-Lee-Collier County area, the recent enactment of speed zones on Lemon Bay and the Peace River by the FWC and us will improve manatee protection in these areas. Additionally, the FWC is conducting a study of the Caloosahatchee River, which may lead to recommendations for improving manatee protection in this area. Additionally, the FWC will conduct a broader study of the existing speed zone rules in Lee County, and a study of the waters of the Ten Thousand Islands area of Collier County, which may lead to recommendations for addressing our concerns regarding the waters near 

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Bokeelia Point, the Ten-mile Canal, Mullock Creek, and Chokoloskee Bay. Finally, the National Park Service (NPS) intends to address manatee protection measures within Everglades National Park as part of their General Management Plan process. It is our view that implementation of additional protection measures in the above-identified waterbodies are appropriate and necessary mitigating measures to reduce watercraft-related incidental take within the Southwest Stock.

As new information becomes available, additional areas of importance to manatees may be identified as being in need of additional protection. It is also possible that additional information could alter our views regarding the adequacy of protection measures in the above-identified areas. However, based on our current assessment of available information, resolution of the above-mentioned deficiencies are considered to be appropriate and necessary mitigating measures to reduce watercraft-related incidental take within the Southwest Stock.

In addition to improvements in watercraft speed zones, efforts are necessary to improve compliance with speed zone regulations. As noted above, Shapiro (2001) and Gorzelany (1996, 1998, 2001) observed levels of compliance at sites within the Southwest Stock that were below our above-stated compliance goal. As such, additional law en