[Federal Register: September 29, 2009 (Volume 74, Number 187)]
[Proposed Rules]
[Page 49842-49845]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29se09-23]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2009-0066]
[92210-1117-0000-B4]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition to Revise Critical Habitat for the Florida Manatee
(Trichechus manatus latirostris)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of critical
habitat review.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day
finding on a petition to revise the critical habitat designation for
the Florida subspecies (Trichechus manatus latirostris) of the
endangered West Indian manatee (Trichechus manatus) under the
Endangered Species Act of 1973, as amended. Based on our review, we
find that the petition, in conjunction with information readily
available in our files, presents substantial scientific or commercial
information indicating that a revision of the critical habitat
designation for the Florida manatee may be warranted. Therefore, with
the publication of this notice, we are initiating a review of the
current critical habitat designation for the subspecies to determine
how we intend to proceed with the revision. To ensure a comprehensive
review, we seek information pertaining to the Florida manatee's
essential habitat needs from any interested party.
DATES: To allow us adequate time to conduct this review, we request
that you send us information on or before October 29, 2009.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://
www.regulations.gov. Search for docket FWS-R4-ES-2009-0066 and then
follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments
Processing, Attn: FWS-R4-ES-2009-0066; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, Suite 222; Arlington, VA 22203.
We will post all information received on http://
www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Information Solicited
section below for more details).
FOR FURTHER INFORMATION CONTACT: Dave Hankla, Field Supervisor,
Jacksonville, Florida Ecological Services Office, 7915 Baymeadows Way,
Suite 200, Jacksonville, FL 32256, by telephone (904-731-3336), or by
facsimile (904-731-3045). If you use a telecommunications device for
the deaf (TDD), please call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that a petition presents substantial
information indicating that a revision of a critical habitat
designation may be warranted, we initiate a review of that critical
habitat to determine how we intend to proceed with the requested
revision of the designation. To ensure that the review is complete and
incorporates the best available scientific and commercial information,
we seek information regarding the revision of critical habitat for the
Florida manatee.
[[Page 49843]]
We request information from governmental agencies, Native American
Tribes, the scientific community, industry, and any other interested
parties. We are seeking information regarding:
(1) The historical and current status and distribution of Florida
manatee, its biology and ecology, and ongoing conservation measures for
the species and its habitat;
(2) Physical and biological features essential to the conservation
of the species;
(3) Information on threats to the species and its habitat; and
(4) Data on the increase in growth of Florida's human population
since we designated manatee critical habitat in 1976, and examples of
related increased threats to the species and subsequent changes to
manatee habitat.
In 2007, the Service conducted an extensive review of all available
information on the Florida manatee while preparing a 5-year status
review of the species (Service 2007). We are particularly seeking
information about manatee habitat or manatee use of habitat that has
been made available since publication of the review.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination. Section 4(b)(2) of the Endangered Species Act
of 1973, as amended (Act) (16 U.S.C. 1531 et seq.) directs that ``the
Secretary shall designate critical habitat, and make revisions thereto,
...on the basis of the best scientific data available.'' Based on our
critical habitat review, we will publish a 12-month notice of our
intentions concerning the petition, as provided in section
4(b)(3)(D)(ii) of the Act.
You may submit your information concerning this review by one of
the methods listed in the ADDRESSES section. If you submit information
via http://www.regulations.gov, your entire submission--including any
personal identifying information--will be posted on the website. If
your submission is made via a hardcopy that includes personal
identifying information, you may request at the top of your document
that we withhold this personal identifying information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Please include sufficient information with your submission (such as
full references) to allow us to verify any scientific or commercial
information you include.
Information and materials we receive, as well as supporting
documentation we used in preparing this finding, will be available for
public inspection on http://www.regulations.gov, or by appointment
during normal business hours, at the U.S. Fish and Wildlife Service,
Jacksonville, Florida Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT).
Background
Section 4(b)(3)(D) of the Act requires that we make a finding as to
whether a petition to revise critical habitat presents substantial
scientific information indicating that the revision may be warranted.
The standard for substantial scientific or commercial information set
forth in our implementing regulations with regard to a 90-day petition
finding is ``that amount of information that would lead a reasonable
person to believe that the measure proposed in the petition may be
warranted'' (50 CFR 424.14(b)). In determining whether substantial
information exists, we take into account several factors, including
information submitted with, and referenced in, the petition and all
other information readily available in our files. To the maximum extent
practicable, we are to make this finding within 90 days of the receipt
of the petition, and we are to publish the finding promptly in the
Federal Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14(b)). If we find that a petition
presents substantial information indicating that the revision may be
warranted, we are required to determine how we intend to proceed with
the requested revision within 12 months after receiving the petition
and promptly publish notice of such intention in the Federal Register.
Critical habitat is defined under section 3(5)(A) of the Act as:
(i) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(I) essential to the conservation of the species and
(II) which may require special management considerations or
protection; and
(ii) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our implementing regulations at 50 CFR 424.12 describe our criteria
for designating critical habitat. We are to consider essential physical
and biological features essential to the conservation of the species.
Those features include, but are not limited to: (1) space for
individual and population growth, and normal behavior; (2) food, water,
air, light, minerals, or other nutritional or physiological
requirements; (3) cover or shelter; (4) sites for breeding,
reproduction, or rearing of offspring; and (5) habitats that are
protected from disturbance or are representative of the historic
geographical and ecological distribution of a species. Essential
physical and biological features may include, but are not limited to:
``nesting grounds, feeding sites, water quality, tide, and geological
formations.'' Our implementing regulations at 50 CFR 424.02 define
``special management considerations or protection'' as any methods or
procedures useful in protecting physical and biological features of the
environment for the conservation of the species.
Section 4(b)(2) of the Act requires us to designate and make
revisions to critical habitat for listed species on the basis of the
best scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical habitat.
The Secretary may exclude any particular area from critical habitat if
he determines that the benefits of such exclusion outweigh the benefits
of specifying such area as part of the critical habitat, unless he
determines that the failure to designate such area as critical habitat
will result in the extinction of the species concerned.
Petition History
On December 19, 2008, we received a petition from Wildlife Advocacy
Project, Save the Manatee Club, Center for Biological Diversity, and
Defenders of Wildlife, requesting that we revise critical habitat for
the Florida manatee (Trichechus manatus latirostris) pursuant to the
Act and the Administrative Procedure Act (5 U.S.C. Subchapter II). The
petition clearly identified itself and included the requisite
identification information for the petitioners, as required in 50 CFR
424.14(a). In a January 17, 2009, letter to the petitioners, we
responded that we received the petition and would make a finding, to
the maximum extent practicable within 90 days, as to
[[Page 49844]]
whether or not the petition presents substantial information. We also
stated that if the initial finding concludes that the petition presents
substantial information indicating that a revision may be warranted,
then we have one year from the date we received the petition to
determine how we intend to proceed with the requested revision and we
will promptly publish in the Federal Register a notice of our
intentions at the end of this period.
Previous Federal Actions
We originally listed the Florida manatee (Trichechus manatus
latirostris), a subspecies of the West Indian manatee (Trichechus
manatus), as endangered in 1967 (32 FR 4001, March 11, 1967) under the
Endangered Species Preservation Act of 1966 (Pub. L. 89-669; 80 Stat.
926). In 1970, we amended Appendix A to 50 CFR part 17 to include
additional names to the list of foreign endangered species (35 FR
18319, December 2, 1970). This listing incorporated West Indian
manatees into the list under the Endangered Species Conservation Act of
1969 (Pub. L. 91-135; 83 Stat. 275) and encompassed the species' range
in the Caribbean and northern South America, thus including both
Antillean (T. m. manatus) and Florida manatees in the listing. The West
Indian manatee is currently listed as an endangered species under the
Act, and the population is further protected as a depleted stock under
the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.). We
designated critical habitat for the Florida manatee (listed in that
regulation as Trichechus manatus) on September 24, 1976 (41 FR 41914)
in Citrus, Hillsborough, Manatee, Sarasota, Charlotte, De Soto, Lee,
Collier, Monroe, Dade, Palm Beach, Martin, West Palm Beach, Volusia,
Brevard, Nassau and Duval Counties, Florida. That critical habitat
designation appears in our regulations at 50 CFR 17.95(a).
Species Information
For current information on the biology, status, and habitat needs
of the Florida manatee, refer to the Service's 5-Year Review of the
West Indian Manatee (Service 2007) and the Service's Florida Manatee
Recovery Plan (Service 2001), available on the Internet at http://
www.regulations.gov and at http://www.fws.gov/northflorida/Manatee/
manatees.htm.
Evaluation of the Petition
In making this 90-day finding, we evaluated whether information
regarding the revision of the critical habitat for Florida manatee, as
presented in the petition and other information available in our files
is substantial, thereby indicating that the petitioned action may be
warranted. Our evaluation of this information is presented below.
The petitioners seek to revise the critical habitat designation
through proposed revisions of each geographic area or management unit
and the inclusion of ``notable constituent elements.'' The petitioners
claim that although the currently designated critical habitat is large,
because of flaws in the listing, it provides inadequate protection of
manatees. The petitioners include the four topics listed below as
``major deficiencies'' in the currently designated critical habitat for
the Florida manatee.
(1) Petitioners Claim that Constituent Elements Required by Law are
Absent.
The petitioners state that we designated manatee critical habitat
in 1976, 2 years before the requirement for constituent elements was
included in the 1978 amendments to the ESA in which the term ``critical
habitat'' was clearly defined, and included the physical and biological
factors (p. 15). The petitioners also state that, because extensive
information concerning the manatee's current and projected habitat
needs and utilization is now available, it is possible to describe the
constituent elements, and we should remedy the lack of such elements in
the critical habitat designation (p. 15).
We agree that we did not address constituent elements, or more
appropriately, the physical and biological features essential to the
conservation of the manatee, in the original 1976 designation of
critical habitat, and more information is now available on the habitat
needs of the manatee. Therefore, we find that the petitioners have
presented substantial information that a revision to the critical
habitat for the manatee may be warranted to more adequately address the
features essential to the species' conservation.
(2) Petitioners Claim that Changes in Use by the Species Necessitate
Revision.
The petitioners include statistics on the increase in growth of
Florida's human population since we designated manatee critical habitat
and include examples of related increased threats to the species and
subsequent changes to habitats now available to manatees (pp. 15-16).
They state that a 171 percent increase in the human population of
Florida since critical habitat was designated in 1976, through 2005,
has increased recreational use of coastal areas and has diminished
water quality and the availability of natural warm water for manatees.
We agree that the increase in urban development, particularly on
Florida's coasts, has changed the landscape since we designated
critical habitat for the manatee. In response to the increase in human
growth, and consequent increase in the number of recreational vessels
on Florida's waterways, we have published a number of rules to
establish manatee protection areas in the State (50 CFR 17.100 through
17.108). This information can be found on the Internet at http://
www.fws.gov/northflorida/Manatee/manatees.htm. We find that the
information provided by the petitioners, along with information in our
files, is substantial, indicating that a revision to critical habitat
may be warranted to address changes in habitat use by manatees in
Florida since the original designation of critical habitat.
(3) Petitioners Claim that Advancements in Science Provide New
Information About the Needs of the Species.
The petitioners claim that aerial surveys, radio and satellite
telemetry studies, a carcass retrieval database, and the U.S.
Geological Survey-Sirenia Project photo-identification database, which
were developed after the initial designation of manatee critical
habitat, have revolutionized our knowledge of manatee distribution and
use of habitat. The petitioners also cite the Florida Manatee Recovery
Plan's actions regarding manatee habitat, stating that we are compiling
information and sponsoring research to identify and protect important
manatee habitats with a longer term goal to conserve a network of
manatee migratory corridors, and feeding, calving, and nursing areas
(p. 16).
We agree that scientific information regarding manatee conservation
has dramatically increased since the original critical habitat
designation. On the basis of this information, it is apparent that
there has been a change in habitat use by the manatee due to an
increasing manatee population and changing habitats. However, the most
substantial information otherwise readily available to the Service is
not that of the petitioners, but the analysis of threats for the
Florida manatee in the Service's 5-year review (Service 2007), which
incorporates updates in manatee science and includes both biological
information and habitat use. The Service must designate and make
revisions to critical habitat on the basis of the best scientific
information available. The Service's 5-year review is the most recent
analysis of threats to the
[[Page 49845]]
species based on those updates in scientific information. Therefore,
based on information submitted by the petitioners and information in
Service files, we find the information concerning advancements in
science and new information concerning the needs of the species to be
substantial information. We now know more specifically where habitat
exists for manatees that is critical to their survival and recovery. As
a consequence, we have determined that a revision to critical habitat
for the manatee may be warranted to address new information concerning
habitat usage and needs.
(4) Petitioners Claim that The U.S. Fish and Wildlife Service
Recognizes the Need for Revision.
The petitioners cite passages from Service consultation documents
and the current Florida Manatee Recovery Plan (Recovery Plan) as
evidence that we have stated the need to assess and revise critical
habitat for the Florida manatee (p. 17). Specifically, the petitioners
cite a biological opinion regarding U.S. Army Corps of Engineers
Application (No. 4-1-97-F-602): ``The action area is within designated
critical habitat for the manatee; however, no specific primary or
secondary constituent elements were included in the critical habitat
designation, making it difficult to determine when an action adversely
modifies critical habitat.'' The petitioners state that the Service's
Recovery Plan acknowledges the need to revise critical habitat and cite
Recovery Action 3.5 from the Recovery Plan: ``Much has been learned
about manatee distribution in the decades since manatee critical
habitat was originally defined. The FWS should assess the need to
revise critical habitat for the Florida manatee.''
The Service disagrees with the petitioner's statement that the
Recovery Plan acknowledges the need to revise critical habitat;
however, we do acknowledge that the 2001 Florida Manatee Recovery Plan
contains a recovery action, including the recommendation as stated
above, to assess the need to revise critical habitat. Although the
Service believes ``assessing the need'' is not the same as
``recognizing the need'' for revision, we find that the information
submitted by the petitioner in this category to be substantial
information indicating that a revision to critical habitat for the
manatee may be warranted.
Petitioners' Proposed Revisions to Critical Habitat
In addition to identifying the deficiencies noted above with the
current Florida manatee critical habitat designation, the petitioners
dedicate an entire section of the petition to specific proposed
revisions to manatee critical habitat in Florida. These proposed
revisions include a description of geographic boundaries within each
regional management unit that would alter the currently designated
critical habitat, as well as recommended physical and biological
features essential to the conservation of the manatee that would
require protection and special attention either throughout all or
portions of the petition's proposed geographical boundary revisions.
Within each geographic management unit (Northwest Region, Southwest
Region, Atlantic Region, and Upper St. Johns River Region), the
petitioners provide a list of the currently designated critical habitat
areas followed by their proposed revisions to those areas. In most
cases, the petitioners list additional areas that they believe should
be included in a revision to the currently designated critical habitat
boundaries. They cite available scientific data to support their
proposal.
The list of essential features recommended by the petitioners for
each of these geographic areas includes warm water (natural springs,
passive thermal basins, and power plant thermal discharges); various
food sources (seagrasses and freshwater vegetation); travel corridors;
shelter (for calving and from disturbances); fresh water; and other
habitat features (water depth, water quality and salinity).
The Service recognizes the importance of warm water habitat to
manatees; however, we have not evaluated potential physical and
biological features essential to the conservation of the manatee. The
Service makes no statement at this time on the specific proposals by
the petitioners for the constituent elements or for the areas presented
as revised critical habitat geographic boundaries. We do believe that
any revision to critical habitat should reflect the current
understanding of the conservation needs of the species.
Finding
Our process for making this 90-day finding under section 4(b)(3)(D)
of the Act is limited to a determination of whether the information in
the petition presents ``substantial scientific information,'' which is
interpreted in our regulations as ``that amount of information that
would lead a reasonable person to believe that the measure proposed in
the petition may be warranted'' (50 CFR 424.14(b)).
Based on this review and evaluation, in addition to the information
readily available in our files, we find that the petition has presented
substantial scientific information indicating that revision of the
critical habitat designation for the Florida manatee may be warranted.
Therefore, we are initiating a review to determine how we intend to
proceed with the request to revise the critical habitat designation
under the Act for the Florida manatee.
References Cited
A complete list of all references cited in this rule is available
on the Internet at http://www.regulations.govor upon request from the
Field Supervisor, Jacksonville, Florida Ecological Services Office (see
FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary authors of this notice are the staff members of the
Jacksonville, Florida Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: September 16, 2009.
Thomas L. Strickland
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E9-23245 Filed 9-28- 09; 8:45 am]
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