[Federal Register: January 12, 2010 (Volume 75, Number 7)]
[Proposed Rules]
[Page 1574-1581]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja10-25]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2009-0066]
[MO 92210-0-0009-B4]
Endangered and Threatened Wildlife and Plants; 12-month Finding
on a Petition To Revise Critical Habitat for the Florida Manatee
(Trichechus manatus latirostris)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 12-month petition finding.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our
12-month finding on a petition to revise critical habitat for the
Florida manatee (Trichechus manatus latirostris) under the Endangered
Species Act of 1973, as amended. After a thorough review of all
available scientific and commercial information, we find that revisions
to critical habitat for the Florida manatee are warranted. However,
sufficient funds are not available due to higher priority actions such
as court-ordered listing-related actions and judicially approved
settlement agreements. We intend to initiate rulemaking when we
complete the higher priorities and have the necessary resources to do
so.
DATES: The finding announced in this document was made on January 12,
2010.
ADDRESSES: This finding is available on the Internet at http://
www.regulations.gov at Docket Number FWS-R4-ES-2009-0066. Supporting
documentation we used to prepare this finding is available for public
inspection, by appointment during normal business hours at the U.S.
Fish and Wildlife Service, Jacksonville Ecological Services Field
Office, 7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256-7517.
Please submit any new information, materials, comments, or questions
concerning this finding to the above address.
FOR FURTHER INFORMATION CONTACT: U.S. Fish and Wildlife Service, Attn:
Manatee CH Review, at the above address, by telephone at 904-731-3336,
by facsimile at 904-731-3045, or by e-mail: northflorida@fws.gov.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Information Relay Service (FIRS) at 800-877-8339. Please
include ``Florida manatee scientific information'' in the subject line
for faxes and emails.
SUPPLEMENTARY INFORMATION: Section 4(b)(3)(D)(ii) of the Endangered
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.),
requires that, for any petition that is found to present substantial
scientific and commercial information indicating that the requested
revisions to critical habitat may be warranted, we make a finding
within 12 months of the date of receipt of the petition and publish a
notice in the Federal Register indicating how we intend to proceed with
the requested revision.
Background
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) under the Endangered
Species Preservation Act of 1966 (Pub. L. 89-669; 80 Stat. 926). In
1970, Appendix A to 50 CFR Part 17 was amended to include additional
names to the list of foreign endangered species (35 FR 18319). 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. 1361-1407).
Critical habitat was designated for the Florida manatee on
September 24, 1976 (41 FR 41914). This designation delineated specific
waterways in Florida that were known to be important concentration
areas for manatees at that time.
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 critical habitat be revised for
the Florida manatee (Trichechus manatus latirostris) under the Act and
the Administrative Procedure Act. The petition clearly identified
itself as a petition 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 had received the petition and would make a finding, to the maximum
extent practicable within 90 days, as to 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 the requested action may be warranted, then we have 1
year from the date we received the petition to determine how we intend
to proceed with the requested revision, and that we would promptly
publish a notice of our intentions in the Federal Register at the end
of this period.
We published our 90-day finding regarding the petition to revise
critical habitat for the Florida manatee on September 29, 2009 (74 FR
49842). We determined that the petition presented substantial
information indicating that revising critical habitat for the Florida
manatee under the Act may be warranted, thus initiating this 12-month
finding. Accordingly, we asked the public to submit information
relevant to the finding by October 29, 2009. We have fully considered
all information available and received in response to information
requested in our 90-day finding.
This 12-month finding discusses only those topics directly relevant
to the revision of existing critical habitat for the Florida manatee.
[[Page 1575]]
Species Information
The Florida manatee, Trichechus manatus latirostris, is a
subspecies of the West Indian manatee (T. manatus, Linnaeus 1758) and
is native to Florida. Manatees are long-lived marine mammals, dark grey
in color, and average about 10 feet (3 m) in length and between 800 to
1,200 pounds (363 to 544 kg) in weight. Manatees have a round,
flattened, paddle-shaped tail and two front flippers that are used for
steering while swimming.
Female manatees are capable of reproduction at as early as 4 years
of age; however, most breed between the ages of 7 and 9. Gestation
lasts from 12 to 14 months. Normally an adult female would have only
one calf every 2 to 5 years, but there are rare occurrences of twins.
The mother and calf remain together for up to 2 years. Male manatees
aggregate in mating herds around a female when she is ready to
conceive, but contribute no parental care to the calf.
The major threats to the Florida manatee population are human
related, and include watercraft strikes (direct impacts and propeller
cuts), which can cause injury and death (Rommel et al. 2007, p. 111;
Lightsey et al. 2006, p. 262); entrapment and crushing in water control
structures (gates, locks, etc.); and entanglement in fishing gear.
Natural threats include red tide and exposure to cold. A comprehensive
threats analysis, recently conducted as part of the Service's 5-year
status review, indicated that the single largest threat to the
persistence of manatees in Florida is collisions with watercraft. The
second most significant threat to the species' survival is the loss of
warm-water habitat. The other threats (water control structures,
entanglement, and red tide) are of substantially less impact to the
overall status of the species (USFWS 2007, p. 24; Runge et al. 2007a,
p. 10).
The Florida manatee has not experienced any curtailment in the
extent of its range throughout the southeastern U.S. To the contrary,
Florida manatees have expanded their summer range to other states along
the Atlantic and Gulf coasts. It is now not uncommon to find manatees
in coastal waters of Georgia, North and South Carolina, Alabama, and
Louisiana.
Habitat Information
Florida manatees are found in freshwater, brackish, and marine
environments. Typical habitats include coastal tidal rivers and
streams, mangrove swamps, salt marshes, and freshwater springs (FWC
2005). As herbivores, manatees feed on the wide range of aquatic
vegetation that these habitats provide. Shallow seagrass beds, with
ready access to deep channels, are generally preferred feeding areas in
coastal and riverine habitats (Smith 1993, p. 5). In coastal Georgia
and northeastern Florida, manatees feed in salt marshes on smooth
cordgrass (Spartina alterniflora) by timing feeding periods with high
tide (Baugh et al. 1989, p. 89; Zoodsma 1991, p. 124). Manatees use
springs and freshwater runoff sites for drinking water; secluded
canals, creeks, embayments, and lagoons for resting, cavorting, mating,
calving, and nurturing their young; and open waterways and channels as
travel corridors (Marine Mammal Commission 1984, p. 8, and 1988, p. 88;
Gannon, et al. 2007, p. 140; Laist and Boland 2008, p. 1).
Although manatees occupy different habitats during various times of
the year (Deutsch et al. (2003, p. 1), they are a subtropical species
with little tolerance for cold. Their year-round presence in Florida
represents the northern limit of their winter range (Lefebvre et al.
2001, p. 425). Within Florida, they require stable, long-term sources
of warm water during cold weather. Prolonged exposure to cold water
temperatures can result in debilitation and death due to a phenomenon
known as ``cold stress syndrome'' (Rommel et al. 2002, p. 16; Bossart
et al. 2004, p. 437). An ambient water temperature of 68 degrees
Fahrenheit (20 degrees Celsius) is generally considered as the lower
threshold; below this temperature they have been observed to exhibit an
increase in metabolic rate (Worthy et al. 1999, p. 4). When water
temperatures begin to decrease to this temperature, manatees will
aggregate within the confines of warm-water refuges or move to the
southern tip of Florida. During periods of intense cold, they will
remain at warm-water refuges; during warm interludes, they will move
from the warm-water areas to feed, and return once again when water
temperatures are too cold (Hartman 1979, p. 26; Deutsch et al. 2000, p.
22; Stith et al. 2006, p. 24). Recent studies focusing on manatee use
of natural warm-water sites include those by Koelsch et al. 2000, p.
27; Taylor et al. 2005. p. 3; Taylor 2006, p. 5; USGS 2006, p. 3;
Gannon et al. 2006, p. 133; Stith et al. 2006, p. iv; Reynolds and
Barton 2005, 2008, p. 9; and Taylor and Provancha 2008, p. 2).
Historically, manatees relied on the warm, temperate waters of
south Florida and on natural warm-water springs scattered throughout
the State as buffers to the lethal effects of cold winter temperatures.
In part, as a result of human disturbance at natural sites (Laist and
Reynolds 2005, p. 740), they have expanded their winter range to
include industrial sites and associated warm-water discharges as
refuges from the cold. Although manatees overwinter at major springs
throughout peninsular Florida, nearly two-thirds of the population
winters at industrial warm-water sites, which are now made up almost
entirely of power plants (FWC FWRI, unpub. synoptic aerial survey
data). The thermal discharge from power plants serves as an attractant
to manatees because the temperature of the discharge is much warmer
than the surrounding water temperature. Power plants in Brevard, Palm
Beach, and Hillsborough counties maintain the largest winter
aggregations of manatees throughout the winter. There are numerous
research and monitoring studies that have documented historical and
recent use by manatees at power plants ( Keith et al. 2008, p. 16;
Reynolds 2007, 2009, p. 10; and Fonnesbeck et al. 2009, p. 563).
The Crystal River springs complex in Citrus County and Blue Springs
along the St. Johns River, in Volusia County, are the northernmost
natural warm-water refuges in Florida used regularly by manatees. These
and other natural springs in the State have experienced an increase in
manatee use as the Florida population has grown (FWC FWRI, unpub.
synoptic aerial survey data).
Minor thermal refuges are also used by manatees throughout Florida.
Most of these include canals or boat basins where warmer water
temperatures persist as temperatures in adjacent bays and rivers
decline.
The loss of Florida's warm-water habitats is one of the leading
threats facing the manatee population (Runge 2007a, p. 2). Reductions
in spring flows, which affect manatee access and use of springs, are
being addressed through the adoption of minimum flow regulations
(Florida Springs Task Force 2001, p. 15). A minimum spring discharge
rate that considered the estimated flow rates necessary to support
overwintering manatees has been identified for Volusia County's Blue
Spring and is expected to be adopted, pending the St. Johns River Water
Management District's acceptance of a monitoring plan currently under
development. Similarly, other springs used by manatees have been
scheduled for, or are in the process of developing, minimum flow
regulations. Those requirements would assure adequate flows are secured
to support manatees. All Primary sites, except the Weeki Wachee/Mud
Creek/Jenkins Creek complex, have been protected. Ten of
[[Page 1576]]
the 47 total known warm-water sites still require protection.
In addition to protecting natural warm-water sites, efforts are
under way to restore and improve them to enhance manatee use. As an
example, the spring run at Homossassa Springs was dredged in 2006 to
improve manatee access; since dredging, studies indicate that the run
has been attracting more animals (Taylor 2009, pers. comm.).
We and our partners are defining a network of migratory corridors
based on manatee travel patterns and identifying other use areas to
ensure protection of feeding, calving, and nursing areas throughout the
State (FWC FWRI, unpub. data 2006; USGS FISC Sirenia Project, unpub.
data 2006; Gannon et al. 2007, p. 134). Many of these sites are already
known and are variously protected under the Florida Manatee Sanctuary
Act, the Endangered Species Act, and the Marine Mammal Protection Act.
We are currently completing an assessment of manatee habitat use at a
number of natural warm-water sites throughout Florida. Recently, we
initiated a study to predict manatee carrying capacity at natural warm-
water sites, and we are also evaluating effects to manatees in South
Florida associated with Comprehensive Everglades Restoration Plan
activities.
Industrial thermal discharges are not a reliable source of warm
water for the manatee population in the long term. Power plants can be
eliminated due to plant obsolescence, environmental permitting
requirements, economic pressures, and other factors, and can experience
disruptions and temporary shutdowns. It is difficult to predict how
manatees will respond to changes at artificial warm-water sites. In
some instances manatees have been observed to use less preferred nearby
sites, yet, in other cases when thermal discharges have been
eliminated, manatees have died due to behavioral persistence or site
fidelity (USFWS 2000, p. 74).
Since release of the Service's 5-year status review in 2007, we
have new information that two of the oldest power plants in Florida
that attract the largest numbers of wintering manatees will be
undergoing repowering over the next several years, and will continue to
discharge warm water (USFWS 2007, p. 16). Repowering these facilities
will reduce the probability of a catastrophic winter mortality event
for the manatee population over the next several decades.
We currently assess the status of the Florida manatee population
according to regional management units within the State that reflect
the winter-season site fidelity of individuals in the population, as
manatees tend to return to the same warm-water sites each winter. The
four regional management units are: an Atlantic Coast unit that
occupies the east coast of Florida, including the Florida Keys and the
lower St. Johns River north of Palatka; an Upper St. Johns River unit
that occurs in the river south of Palatka; a Northwest unit that
occupies the Florida Panhandle south to Hernando County; and a
Southwest unit that occurs from Pasco County south to Whitewater Bay in
Monroe County. Typical manatee habitat within these geographic
boundaries is described in Table 1. Exchange of individuals between the
management units is thought to be limited during winter months, based
on data from telemetry (Reid et al. 1991, p. 185; Weigle et al. 2001,
p. 18; Deutsch et al. 1998, p. 18, and 2003, p. 2) and photo-
identification (C. A. Beck, USGS FISC Sirenia Project, unpub. data,
2009; K. Higgs, FWC FWRI, unpub. data, 2009). Movement between
management units does occur during warm seasons, particularly along the
same coast, and there are some documented cases of wide-ranging coastal
movements and isolated events of intercoastal migration (Reid et al.
1991, p. 185; Deutsch et al. 1998, p. 18, and 2003, p. 2; Beck 2009,
pers. comm.).
Although natural vegetation has diminished in some locations due to
human activities, and exotic vegetation has increased in other areas,
the availability of aquatic vegetation as forage is not known to be a
limiting factor for manatees at this time (Orth et al. 2006, p. 994;
G.A.J. Worthy, University of Central Florida, unpub. data 2006).
Population Status
The most current information on Florida manatee population
demographics (growth, survival, and reproductive rates) includes
published studies by Runge et al. (2004, 2007b), Craig and Reynolds
(2004), Kendall et al. (2004), and Langtimm et al. (2004), and
unpublished reports by the Manatee Population Status Working Group
(2005) and Runge et al. (2007a). All of these studies indicate that the
manatee population is doing well throughout most of Florida. Population
growth rates, determined using the Manatee Core Biological Model (Runge
et al. 2004, p. 361, and 2007b), are as follows:
Northwest Region 4.0 percent
Upper St. Johns River Region 6.2 percent
Atlantic Coast Region 3.7 percent
Southwest Region -1.1 percent
Craig and Reynolds (2004, p. 386) additionally suggested that
populations of wintering manatees in the Atlantic Coast Region have
been increasing at rates of between 4 and 6 percent per year since
1994.
In southwest Florida, estimates of adult manatee survival and
reproduction are less precise than in the other regions of Florida
because the time series of data is comparatively shorter for this
region and there are no demographic data available for manatees in the
southernmost part of this region. The estimates could also be biased
low due to effects from temporary emigration (Langtimm et al. 2004, p.
450; Langtimm 2009 pers. comm). Updated estimates of adult survival and
growth rates for manatees in this region are anticipated in early 2010.
The most current and best available count of the Florida manatee
population is 3,807 animals, based on a single synoptic survey of warm-
water refuges and adjacent areas in January 2009 (FWC FWRI 2009 Manatee
Synoptic Aerial Survey Data).
Critical Habitat
Current Critical Habitat Designation
Critical habitat was designated for the Florida manatee (listed in
that regulation as Trichechus manatus) in 1976 (50 CFR 17.95(a)) as
follows: ``Florida. Crystal River and its headwaters known as King's
Bay, Citrus County; the Little Manatee River downstream from the U.S.
Highway 301 bridge, Hillsborough County; the Manatee River downstream
from the Lake Manatee Dam, Manatee County; the Myakka River downstream
from Myakka River State Park, Sarasota and Charlotte Counties; the
Peace River downstream from the Florida State Highway 760 bridge, De
Soto and Charlotte Counties; Charlotte Harbor north of the Charlotte-
Lee County line, Charlotte County; Caloosahatchee River downstream from
the Florida State Highway 31 bridge, Lee County; all U.S. territorial
waters adjoining the coast and islands of Lee County; all U.S.
territorial waters adjoining the coast and islands and all connected
bays, estuaries, and rivers from Gordon's Pass, near Naples, Collier
County, southward to and including Whitewater Bay, Monroe County; all
waters of Card, Barnes, Blackwater, Little Blackwater, Manatee, and
Buttonwood Sounds between Key Largo, Monroe County, and the mainland of
Dade County; Biscayne Bay, and all adjoining and connected lakes,
rivers, canals, and waterways from the southern tip of Key Biscayne
northward to and including Maule Lake, Dade County; all of Lake Worth,
from its
[[Page 1577]]
northernmost point immediately south of the intersection of U.S.
Highway 1 and Florida State Highway A1A southward to its southernmost
point immediately north of the town of Boynton Beach, Palm Beach
County; the Loxahatchee River and its headwaters, Martin and West Palm
Beach Counties; that section of the intracoastal waterway from the town
of Seawalls Point, Martin County to Jupiter Inlet, Palm Beach County;
the entire inland section of water known as the Indian River, from its
northernmost point immediately south of the intersection of U.S.
Highway 1 and Florida State Highway 3, Volusia County, southward to its
southernmost point near the town of Sewalls Point, Martin County, and
the entire inland section of water known as the Banana River and all
waterways between Indian and Banana Rivers, Brevard County; the St.
Johns River including Lake George, and including Blue Springs and
Silver Glen Springs from their points of origin to their confluences
with the St. Johns River; that section of the Intracoastal Waterway
from its confluences with the St. Marys River on the Georgia-Florida
border to the Florida State Highway A1A bridge south of Coastal City,
Nassau and Duval Counties.''
No map was published with the 1976 designation. The earliest known
record of a map created from the physical description of designated
critical habitat for the Florida manatee was published by the Service's
Office of Biological Services in 1980 (USFWS 1980). A more recent GIS
depiction of the general locations of the designated critical habitat
for the Florida manatee is shown in Figure 1.
Relevant Statutes and Regulations
Critical habitat is defined in 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.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, or
transplantation.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) of the Act requires consultation on Federal
actions that may affect critical habitat. The designation of critical
habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation does not allow the government or public to access private
lands. Such designation does not require implementation of restoration,
recovery, or enhancement measures by private landowners. Where a
landowner requests Federal agency funding or authorization for an
action that may affect a listed species or critical habitat, the
consultation requirements of section 7(a)(2) would apply, but even in
the event of a destruction or adverse modification finding, the
landowner's obligation is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat designation, specific areas
within the geographical area occupied by the species at the time it is
listed must contain the physical and biological features essential to
the conservation of the species, and be included only if those features
may require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific data available, habitat areas containing the essential
physical and biological features that provide for requisite life cycle
needs of the species. Under the Act and regulations at 50 CFR 424.12,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed only when we
determine that those areas are essential for the conservation of the
species and that designation limited to those areas occupied at the
time of listing would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Act (published in the Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section
515 of the Treasury and General Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated
Information Quality Guidelines, provide criteria, establish procedures,
and provide guidance to ensure that our decisions are based on the best
scientific data available. They require our biologists, to the extent
consistent with the Act and with the use of the best scientific data
available, to use primary and original sources of information as the
basis for recommendations to designate critical habitat.
Finding
The current critical habitat designation for the Florida manatee
was described before critical habitat regulations and guidance were
developed; it does not identify specific physical and biological
features essential to the conservation of the manatee for this species'
habitat. Instead, it describes specific waterways that were known to be
important concentration areas for manatees at that time. We recognize
that the geographic areas originally described as manatee critical
habitat need to be updated, based on recent scientific studies of
manatee distribution, habitat use, and habitat needs as discussed
above. Since the original designation, we have more information on the
specific habitat needs of the Florida manatee, including the use of
warm-water sites (Koelsch et al. 2000, p. 27; Taylor et al. 2005. p. 3;
Taylor 2006, p. 5; USGS 2006, p. 3; Gannon et al. 2006, p. 133; Stith
et al. 2006, p. iv; Reynolds and Barton 2005, 2008, p. 9; and Taylor
and Provancha 2008, p. 2) as well as power plant discharges (Keith et
al. 2008, p. 16; Reynolds 2007, 2009, p. 10; and Fonnesbeck et al.
2009, p. 563, among others), that will allow us to identify the
physical or biological features essential to manatee conservation.
Therefore, based on this current and best available scientific and
commercial information, we find that revising critical habitat for the
Florida manatee under the Act is warranted.
We intend to identify the physical and biological features
essential to conservation of the species, in order to address the
ecological and conservation needs of the Florida manatee. Given the
significance of warm water to the survival of the manatee in Florida,
the most essential feature will be the availability and adequacy of
warm-water refugia. Additional features to be considered in the
analysis may include
[[Page 1578]]
adequate forage within dispersal distance of a warm-water refuge, areas
needed for calving and nursing, and important travel corridors for
movements throughout Florida and beyond. The revision may include both
additions and deletions to the current designation, and specific areas
within and outside of the geographical area currently occupied by
manatees. We find that incorporating these concepts into a revised
critical habitat designation for the Florida manatee is important for
identifying the specific areas essential to the conservation of the
species or which contain the essential features. We request any
additional information or input on these potential essential features.
How the Service Intends To Proceed
Section 4(b)(3)(D)(ii) of the Act requires that if we find that a
revision to critical habitat is warranted, then we are to indicate how
we intend to proceed with such revision and promptly publish a notice
of our intention in the Federal Register. We have reviewed the best
available scientific data available, and we find that revisions to
critical habitat for Florida manatee under the Act should be made.
However, sufficient funds are not available due to higher priority
actions such as listing-related actions pursuant to court orders and
judicially-approved settlement agreements. We intend to undertake
rulemaking to revise critical habitat for the Florida manatee when
funding and staff resources become available.
The resources available for listing actions, including critical
habitat designations and revisions, are determined through the annual
Congressional appropriations process. We cannot spend more than is
appropriated for the Listing Program without violating the Anti-
Deficiency Act (31 U.S.C. 1341(a)(1)(A)). Recognizing that designation
of critical habitat for species already listed would consume most of
the overall Listing Program appropriation, Congress also put in place a
critical habitat subcap within the overall Listing Program budget in FY
2002 and has retained it each subsequent year. Thus, through the
critical habitat subcap, and the amount of funds needed to address
court-mandated critical habitat designations, Congress and the courts
have in effect determined the amount of money available for critical
habitat revisions. Therefore, the funds in the critical habitat subcap
set the limits on our ability to designate critical habitat or revise
existing designations in a given year.
In FY 2002 and each year until FY 2006, we had to use virtually all
of the funds available under the subcap to address court-mandated
designations of critical habitat; consequently, none of the critical
habitat subcap funds have been available for other designations. In FY
2007, we were able to use some of the critical habitat subcap funds to
fund proposed listing determinations for high-priority candidate
species. In FY 2008, we were unable to use any of the critical habitat
subcap funds to fund proposed listing determinations; however, we did
use some of this money to fund the critical habitat portion of some
proposed listing determinations. In those cases, the proposed listing
determination and proposed critical habitat designation were combined
into one rule, thereby increasing efficiency in our work. In FY 2009,
we have been able to continue this practice. However, our current
projection for FY 2010 is that all of the funding anticipated for the
critical habitat portion of the listing allocation will be used to
address court-ordered critical habitat designations. Therefore, we do
not anticipate having any funding in FY 2010 available to work on
additional critical habitat designations.
Nonetheless, given the requirements of the relevant law and
regulations, and constraints relating to workload and personnel, we
have endeavored to make our critical habitat designation and revision
actions as efficient and timely as possible. We are continually
considering ways to streamline processes or achieve economies of scale,
such as by batching related actions together as described above.
We intend to proceed with a revision of critical habitat as soon as
we have the necessary resources. Our critical habitat regulations (50
CFR 424.12(c)) state that critical habitat will be defined by specific
limits using reference points and lines on standard topographic maps of
the area. Section 4(b)(2) of the Act requires that we consider
economic, national security, and other impacts of designating critical
habitat. Based on these authorities, and on the definition of critical
habitat under the Act, once funding is available, we will take the
following steps to propose the revision of designated critical habitat
for the Florida manatee: (1) Determine the geographical area occupied
by the species at the time of listing; (2) identify the physical or
biological features essential to the conservation of the species; (3)
delineate specific areas within the geographical area occupied by the
species that contain these features, and that may require special
management considerations or protection; (4) delineate any areas
outside of the geographical area occupied by the species that are
essential for the conservation of the species; and (5) conduct
appropriate analyses under section 4(b)(2) of the Act; and (6) invite
the public to review and provide comments on the proposed revision
through a public comment period.
We intend that any revisions to critical habitat for the Florida
manatee be as accurate as possible. Therefore, even until we initiate
the proposed designation we will continue to accept additional
information and comments from all concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this finding.
Current Designation and Protections
Until we are able to revise the critical habitat designation for
the Florida manatee, the currently designated critical habitat, as well
as areas that support manatee populations, but are outside the current
critical habitat designation, will continue to be subject to
conservation actions implemented under section 7(a)(1) of the Act.
Federal agency actions are subject to the regulatory protections
afforded by section 7(a)(2), which requires Federal agencies, including
the Service, to ensure that actions they fund, authorize, or carry out
are not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of
critical habitat. We expect that the majority of regulatory projects
will involve a Federal nexus, in which case consultation under section
7(a)(2) would apply. In addition, federally funded or permitted
projects affecting listed species outside their designated critical
habitat areas may still result in jeopardy findings in some cases.
Under section 7(a)(2) of the Act, if a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
(action agency) must enter into consultation with us. For most species,
as a result of this consultation, we document compliance with the
requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
Because manatees are marine mammals, they are protected under the
Marine Mammal Protection Act of 1972
[[Page 1579]]
(MMPA). Section 17 of the Act provides that any more restrictive
conflicting provisions of the MMPA take precedence over the Act (16
U.S.C. 1543). Section 7(b)(C) of the Act identifies the necessary
authorization pursuant to section 101(a)(5) of the MMPA for taking of
an endangered or threatened marine mammal. Because the Service has not
promulgated a rulemaking under MMPA section 101(a)(5), we do not issue
incidental take authorization in conjunction with consultations on
Federal actions under section 7(a)(2) of the Act. In order to ensure
compliance with section 7(a)(2) of the Act and the more restrictive
provisions of the MMPA, any Federal action that is determined as
``likely to adversely affect the Florida manatee'' (USFWS 2008) will
need to:
(1) Modify the project to the extent that take is no longer
reasonably certain to occur and/or:
(2) Incorporate Service-approved take minimization and avoidance
measures, as outlined in our 2009 Manatee Programmatic Biological
Opinion (USFWS 2009).
Therefore, although we are not immediately proceeding with a
revision of the current critical habitat designation for the manatee,
the current designation still provides protections to the manatee in
addition to the protections afforded the manatee through listing under
the Act and those provided under the MMPA.
References Cited
A complete list of all references cited in this document is
available, upon request, from the Jacksonville Ecological Services
Field Office (see ADDRESSES section).
Author
The primary author of this notice is staff with the U.S. Fish and
Wildlife Service, Jacksonville Ecological Services Field Office (see
ADDRESSES section).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 30, 2009.
Eileen Sobeck,
Acting Assistant Secretary of Fish Wildlife and Parks.
Table 1. Regional description of manatee habitat and region-specific threats for manatees in Florida
----------------------------------------------------------------------------------------------------------------
Upper St. Johns
Features Northwest Southwest Atlantic Coast River Management
Management Unit Management Unit Management Unit Unit
----------------------------------------------------------------------------------------------------------------
Geographic Boundaries Located along Located along Includes Florida's This unit is
Florida's Florida's coastal areas located upstream
northwest coast, southwest coast, from south of the of Palatka,
the southern the northern mouth of Florida,
boundary of the boundary is Whitewater Bay, extending to the
unit is defined described by the through Florida headwaters of the
by the Hernando- Pasco-Hernando Bay and north to St. Johns River.
Pasco County County line, the mid-Atlantic
line. While the extending south region. The unit
majority of use to the mouth of extends into the
occurs east of Whitewater Bay, St. Johns River
the Wakulla along the western as far south as
River, manatees margin of the Palatka.
from this unit Everglades.
range as far west
as Texas.
----------------------------------------------------------------------------------------------------------------
Habitat Description This unit This unit This unit This freshwater
incorporates primarily primarily system includes
coastal seagrass includes in-shore includes in-shore extensive eel
beds which extend and near-shore seagrass beds, grass beds
from the seagrass beds, which border bordered largely
shoreline out to which border mangrove systems by cypress and
the Gulf of mangrove systems to the south. hardwood swamps.
Mexico. to the south. Predominant There are
Significant Tampa Bay, features include numerous rivers
features include Charlotte Harbor, Florida Bay, the and lakes that
the spring-fed and the Florida Keys, make up this
Wakulla, Caloosahatchee Biscayne Bay, and system. Notable
Suwannee, River are barrier islands features include
Crystal, and dominant coastal and inland the Ocklawaha
Homosassa River features. There waterways that River (dammed),
systems, which are numerous extend into the Lake George, Lake
empty into the barrier islands mid-Atlantic Woodruff, and
Gulf. south of Tampa region. Lake Monroe.
Bay, accompanied Significant There are many
by passes, inland waterways include small, spring-fed
waterways, etc. the Indian River tributaries that
Tidal rivers and Lagoon, Banana discharge into
creeks are common River, and this system.
in this area. Mosquito Lagoon.
From north
Florida and into
more northerly
states, habitats
are typified by
large coastal
rivers, such as
the St. Johns
River and coastal
marshes.
----------------------------------------------------------------------------------------------------------------
[[Page 1580]]
Winter Sites Crystal River TECO Big Bend Reliant Energy Blue Spring
Springs Complex Power Plant Power Plant (Volusia)Silver
(Citrus) (Hillsborough) (Brevard) Glen Springs
Homosassa River Warm Mineral FPL Canaveral (Marion)
Springs Complex Springs Power Plant DeLeon Springs
(Citrus). (Sarasota). (Brevard County, (Volusia)
Weeki Wachee/ Mud Matlacha Isles FL). Salt Springs
Creek/ Jenkins (Lee). FPL Riviera Beach (Marion)
Creek Springs FPL Ft. Myers Power Plant (Palm Ocklawaha River
(Hernando). Power Plant (Lee). Beach). SpringsComplex
Progress Energy Port of the FPL Port (Marion/Lake)
Crystal River Islands (Collier). Everglades Power
Power Plant Progress Energy Plant (Broward).
(Citrus). Anclote Plant FPL Fort
Manatee/Fanning (Pasco). Lauderdale Power
Springs (Dixie). TECO Gannon Plant Plant (Broward).
Wakulla/St. Mark's (Hillsborough). Coral Gables
Complex (Wakulla). Progress Energy Waterway (Dade).
Bartow Power Sebastian River (C-
Plant (Pinellas). 54 canal)
Ten Mile Canal (Brevard).
Borrow Pit (Lee). Vero Beach Power
Franklin Locks Plant (Indian
(Lee). River).
Spring Bayou/ Henry D. King
Tarpon Springs Electric Station -
(Pasco). Ft. Pierce
Forked Creek Utilities (St.
(Sarasota). Lucie).
Tamiami Canal at Big Mud Creek (
Wootens (Collier). St. Lucie).
Big Cypress Berkeley Canal
National Preserve (Brevard).
Headquarters Black Point Park/
Canal (Collier). Black Creek (Dade
Sulphur Springs County).
(Hillsborough). Palmer Lake
(Dade)Little
River (Dade).
Turkey Point Canal
(Dade).
C-111 canal and
canal just west
of Card Sound
Bridge (Dade).
Biscayne Canal
(Dade).
Banana River
Marine Service
Marina (Brevard).
Canals/Coves,
Upper Keys
(Bayside of Key
Largo) (Monroe).
Harbor Branch
canal (St. Lucie).
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