Designated Critical Habitat: Re-proposed Critical Habitat for Johnson's Seagrass

[Federal Register Volume 64, Number 231 (Thursday, December 2, 1999)]
[Proposed Rules]
[Pages 67536-67551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31304]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 991116305-9305-01; I.D. No. 110599D]
RIN 0648-AL82


Designated Critical Habitat: Re-proposed Critical Habitat for 
Johnson's Seagrass

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; notice of hearing; request for comments.

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SUMMARY: NMFS re-proposes to designate critical habitat for Johnson's 
seagrass (Halophila johnsonii) pursuant to section 4 of the Endangered 
Species Act (ESA). Johnson's seagrass is found on the east coast of 
Florida from Sebastian Inlet to central Biscayne Bay. Within this 
range, 10 areas are proposed for critical habitat: a portion of the 
Indian River Lagoon, north of the Sebastian Inlet Channel; a portion of 
the Indian River Lagoon, south of the Sebastian Inlet Channel; a 
portion of the Indian River Lagoon near the Fort Pierce Inlet; a 
portion of the Indian River Lagoon, north of the St. Lucie Inlet; a 
portion of Hobe Sound; a site on the south side of Jupiter Inlet; a 
site in central Lake Worth Lagoon; a site in Lake Worth Lagoon, Boynton 
Beach; a site in Lake Wyman, Boca Raton; and a portion of the Biscayne 
Bay Aquatic Preserve.
    The designation of critical habitat provides explicit notice to 
Federal agencies and the public that these areas and features are vital 
to the conservation of the species.

DATES: Comments on this proposed rule must be received by January 3, 
2000. A public hearing on this proposed action is scheduled for 
Thursday, December 16, 1999, from 7:00 p.m.-9:00 p.m.

ADDRESSES: Written comments on this proposed designation of critical 
habitat should be addressed to Mr. Charles Oravetz, Assistant Regional 
Administrator, Protected Resources Division, NMFS, Southeast Regional 
Office, 9721 Executive Center Drive North, St. Petersburg, Florida 
33702-2432. Comments may be sent via facsimile (fax) to 727-570-5517. 
Comments will not be accepted if submitted via e-mail or Internet. A 
public hearing on this proposal will be held at the South Florida Water 
Management District auditorium, 3301 Gun Club Road, West Palm Beach, 
Florida, 33416-4680 (see DATES).

FOR FURTHER INFORMATION CONTACT: Layne Bolen, Southeast Region, 
Protected Resources Division, NMFS, 727-570-5312, layne.bolen@noaa.gov 
or Marta Nammack, Office of Protected Resources, NMFS, 301-713-1401, 
marta.nammack@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    NMFS published a proposed rule to list Johnson's seagrass as a 
threatened species on September 15, 1993 (58 FR 48326) and a proposed 
rule to designate critical habitat on August 4, 1994 (59 FR 39716). A 
public hearing on both the proposed listing and critical habitat 
designation was held in Vero Beach, Florida, on September 20, 1994. As 
a result of public input during the comment period, NMFS postponed 
further action on listing. NMFS reopened the comment period for the 
proposed listing on April 20, 1998 (63 FR 19468). In order to update 
the original status report (Kenworthy, 1993) and to include information 
from new field and laboratory research on species distribution, 
ecology, genetics and phylogeny, NMFS convened a workshop on the 
biology, distribution, and abundance of H. johnsonii. The results of 
this workshop were summarized in the proceedings (Kenworthy, 1997) 
submitted to NMFS on October 15, 1997. The final rule to list Johnson's 
seagrass as a threatened species was published by NMFS on September 14, 
1998 (63 FR 49035).
    On February 23, 1999, NMFS established and convened a recovery team 
to prepare a recovery plan and develop recommendations for critical 
habitat for Johnson's seagrass. Based on these recommendations and the 
best available scientific data on the distribution, ecology and 
genetics of this species, NMFS has developed a new proposal to 
designate critical habitat for Johnson's seagrass. A draft recovery 
plan for Johnson's seagrass is anticipated by January 2000.
    The proposed designation identifies those physical and biological 
features of the habitat that are essential to the conservation of the 
species and that may require special management consideration or 
protection. The economic and other impacts resulting from designating 
critical habitat, over and above those that result from listing the 
species, are expected to be minimal.
    NMFS has completed a conference opinion with the U.S. Army Corps of 
Engineers (COE) on maintenance dredging which will be used to fulfill 
the ESA section 7 consultation requirement. NMFS expects that normal 
maintenance dredging activities and routine operations on ports will 
not be negatively impacted by this proposed critical habitat 
designation.

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, NMFS designate critical habitat concurrently 
with a determination that a species is endangered or threatened. NMFS 
has determined that sufficient information exists to propose 
designating critical habitat for Johnson's seagrass currently listed as 
threatened under the ESA. NMFS will consider all available information 
and data in finalizing this proposal.
    The use of the term ``essential habitat'' within this document 
refers to critical habitat as defined by the ESA and should not be 
confused with the requirement to describe and identify Essential Fish 
Habitat pursuant to the Magnuson-Stevens Fishery Conservation and 
Management Act, 16 U.S.C. 1801 et seq.

Definition of Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the ESA as ``(i) 
the specific areas within the geographical area occupied by the species 
* * * 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 * * * upon 
a determination by the Secretary of Commerce (Secretary) that such 
areas are essential for the conservation of the species.'' The term 
``conservation'', as defined in section 3(3) of the ESA, means ``* * * 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to this Act are no longer 
necessary.''
    In designating critical habitat, NMFS must consider the 
requirements of the species, including: (1) space for individual and 
population growth, and for normal behavior; (2) food, water, air,

[[Page 67537]]

light, minerals, or other nutritional or physiological requirements; 
(3) cover or shelter; (4) sites for breeding, reproduction, or rearing 
of offspring; and, generally, (5) habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of the species (50 CFR 424.12(b)).
    In addition, NMFS must focus on and list the known physical and 
biological features (primary constituent elements) within the 
designated area(s) that are essential to the conservation of the 
species and that may require special management considerations or 
protection. These essential features may include, but are not limited 
to, food resources, water quality or quantity, and vegetation and 
sediment types and stability (50 CFR 424.12(b)).

Consideration of Economic and Other Factors

    The economic, environmental and other impacts of a designation must 
also be evaluated and considered. NMFS must identify present and future 
activities that may adversely modify the proposed critical habitat or 
be affected by a designation. An area may be excluded from a critical 
habitat designation if NMFS determines that the overall benefits of 
exclusion outweigh the benefits of designation, unless the exclusion 
will result in the extinction of the species (16 U.S.C. 1533(b)(2)).
    The impacts considered in this analysis are only those incremental 
impacts that specifically result from designating critical habitat 
above the economic and other impacts attributable to listing the 
species or resulting from other authorities. These incremental impacts 
are expected to be minimal (see Significance of Designating Critical 
Habitat section). In general, the designation of critical habitat 
highlights geographical areas of concern and reinforces the substantive 
protection resulting from the listing itself.
    Impacts attributable to listing include those resulting from the 
``take'' prohibitions under section 9 of the ESA and associated 
regulations. The term ``take'', as defined in the ESA, means ``to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct.'' (16 U.S.C. 
1532(19)). Harm can occur through destruction or modification of 
habitat (whether or not designated as critical) that significantly 
impairs essential behaviors, including breeding, feeding, rearing or 
migration (64 FR 60727; November 8, 1999).
    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
Section 9 prohibitions apply automatically to endangered species; as 
described here, this is not the case for threatened species. Section 
4(d) of the ESA directs the Secretary to implement regulations ``to 
provide for the conservation of [threatened] species'' that may include 
extending any or all of the prohibitions of section 9 to threatened 
species.
    Section 9(a)(2)(E) of the ESA also prohibits violations of 
protective regulations for threatened species of plants implemented 
under section 4(d). NMFS may issue protective regulations pursuant to 
section 4(d) for Johnson's seagrass in a future rulemaking.
    Impacts attributable to listing also include those resulting from 
the responsibility of all Federal agencies under section 7 of the ESA 
to ensure that their actions are not likely to jeopardize endangered or 
threatened species. An action could be likely to jeopardize the 
continued existence of a listed species through the destruction or 
adverse modification of its habitat, whether or not that habitat has 
been designated as critical.
    As indicated above, NMFS has completed a conference opinion with 
the COE on maintenance dredging. This conference opinion included an 
analysis of the effects of maintenance dredging on proposed critical 
habitat. NMFS concluded that normal maintenance dredging activities and 
routine operations on ports are not likely to destroy or adversely 
modify proposed critical habitat.

Significance of Designating Critical Habitat

    The designation of critical habitat does not, in itself, restrict 
state or private activities within the area or mandate any specific 
management or recovery actions. A critical habitat designation 
contributes to species conservation primarily by identifying important 
areas and describing the features within those areas that are essential 
to the species, thus alerting public and private entities to the 
importance of the area. Under the ESA, the only regulatory impact of a 
critical habitat designation is through the provisions of section 7. 
Section 7 applies only to actions with Federal involvement (e.g., 
authorized, funded, or conducted by a Federal agency) and does not 
affect exclusively state or private activities.
    Under the ESA section 7 provisions, a designation of critical 
habitat would require Federal agencies to ensure that any action they 
authorize, fund, or carry out is not likely to destroy or adversely 
modify the designated critical habitat. Activities that destroy or 
adversely modify critical habitat are defined as those actions that 
``appreciably diminish the value of critical habitat for both the 
survival and recovery'' of the species (50 CFR 402.02). Regardless of a 
critical habitat designation, Federal agencies must ensure that their 
actions are not likely to jeopardize the continued existence of the 
listed species. Activities that jeopardize a species are defined as 
those actions that ``reasonably would be expected, directly or 
indirectly, to reduce appreciably the likelihood of both the survival 
and recovery'' of the species (50 CFR 402.02). Using these definitions, 
activities that are likely to destroy or adversely modify critical 
habitat would also be likely to jeopardize the species. Therefore, the 
protection provided by a critical habitat designation generally 
duplicates the protection provided under the section 7 jeopardy 
provision. Critical habitat may provide additional benefits to a 
species in cases where areas outside of the species' current range have 
been designated. In these cases, Federal agencies are required to 
consult with NMFS under section 7 (50 CFR 402.14 (a)), when these 
designated areas may be affected by their actions. The effects of these 
actions on designated areas may not have been recognized but for the 
critical habitat designation.
    A designation of critical habitat provides Federal agencies with a 
clearer indication as to when consultation under section 7 of the ESA 
is required, particularly in cases where the action would not result in 
direct mortality, injury, or harm to individuals of a listed species 
(e.g., an action occurring within the critical habitat area when or 
where Johnson's seagrass is not present). The critical habitat 
designation, in describing the essential features of the habitat, also 
helps determine which activities conducted outside the designated area 
are subject to ESA section 7 (i.e., activities that may affect 
essential features of the designated area). For example, disposal of 
waste material in water adjacent to a critical habitat area may affect 
an essential feature of the designated habitat (water quality) and 
would be subject to the provisions of section 7 of the ESA.
    A critical habitat designation also assists Federal agencies in 
planning future actions because the designation establishes, in 
advance, those habitats that will be given special consideration in ESA 
section 7 consultations. This is particularly true in cases where there

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are alternative areas that would provide for the conservation of the 
species and the success of the action. With a designation of critical 
habitat, potential conflicts between Federal actions and endangered or 
threatened species can be identified and possibly avoided early in the 
agency's planning process.
    Another indirect benefit of designating critical habitat is that it 
helps focus Federal, state and private conservation and management 
efforts in those areas. Recovery efforts may address special 
considerations needed in critical habitat areas, including conservation 
regulations that restrict private as well as Federal activities. The 
economic and other impacts of these actions would be considered at the 
time regulations are proposed, and, therefore, are not considered in 
the critical habitat designation process. Other Federal, state and 
local laws or regulations, such as zoning or wetlands protection, may 
also provide special protection for critical habitat areas.

Process for Designating Critical Habitat

    Developing a proposed critical habitat designation involves three 
main considerations. First, the biological needs of the species are 
evaluated and essential habitat areas and features are identified. If 
alternative areas exist that would provide for the conservation of the 
species, such alternatives are also identified. Second, the need for 
special management considerations or protection of the area(s) or 
features is evaluated. Finally, the probable economic and other impacts 
of designating these essential areas as critical habitat are evaluated. 
After considering the requirements of the species, the need for special 
management, and the impacts of the designation, a notification of the 
proposed critical habitat is published in the Federal Register for 
comment. After considering all comments and any new information 
received on the proposal, the final critical habitat designation is 
published. Final critical habitat designations may be revised, using 
the same process, as new data become available.
    A description of the critical habitat, need for special management 
considerations, and impacts of designating critical habitat for 
Johnson's seagrass and the proposed action, are described in the 
following sections.

Critical Habitat of Johnson's Seagrass

    The biology of Johnson's seagrass is discussed in the final rule to 
list the species as threatened (63 FR 49035, September 14, 1998) and 
includes information on the current status of the species, its life 
history characteristics and habitat requirements, as well as projects, 
activities and other factors affecting the species. The physical 
habitat that supports Johnson's seagrass includes both shallow 
intertidal as well as deeper subtidal zones. The species prospers and 
is able to colonize and maintain stable populations either in water 
that is clear and deep (2-5 m) or in water that is shallow and turbid. 
In tidal channels, it inhabits coarse sand substrates.
    Based on published reports and discussions with seagrass experts, 
the distributional range of Johnson's seagrass is limited to the east 
coast of Florida from central Biscayne Bay (25 deg.45' N. lat.) to 
Sebastian Inlet (27 deg.51' N. lat.). There have been no reports of 
healthy populations of this species outside the presently known range. 
Although the species occurs throughout the Indian River Lagoon and Lake 
Worth, the 10 specific areas proposed for critical habitat encompass 
the largest known contiguous populations of Johnson's seagrass, those 
areas known to have persistent populations, those populations known to 
have persistent flowering, those populations found to have unique 
genetic variability, and/or populations that include the northern and 
southern limits of the species' range.
    The species is distributed in patches within its range. The 
dimensions of patches range from a few square centimeters to 
approximately 327 square meters (sq.m.). The survival of the species 
likely depends on maintaining its existing viable populations, 
especially the areas where the larger patches are found. The Sebastian 
Inlet population is believed to be the northern limit of its 
distribution and includes flowering patches that have a known 
persistence of at least 10 years. Ft. Pierce Inlet and Jupiter Inlet 
are also found to have persistent and flowering populations. The other 
areas proposed for critical habitat designation represent the core 
range of the species where Johnson's seagrass is found to be abundant 
compared to other parts of its range, exhibits unique genetic make-up, 
or comprises the southern limit of its range. Spread of the species 
into new areas is limited by its reproductive potential. Johnson's 
seagrass possesses only female flowers; thus vegetative propagation, 
most likely through asexual branching, appears to be its only means of 
reproduction and dispersal. If an established community is disturbed, 
regrowth and reestablishment are extremely unlikely. If extirpated from 
an area, it is doubtful that the species would be capable of 
repopulation. This species' method of reproduction impedes the ability 
to increase distribution as establishment of new vegetation requires 
considerable stability in environmental conditions and protection from 
human-induced disturbances.
    Based on the best available information, general physical and 
biological features of the areas proposed for critical habitat 
designation include adequate water quality, salinity levels, water 
transparency, and stable, unconsolidated sediments that are free from 
physical disturbance. The specific areas occupied by Johnson's seagrass 
are those with one or more of the following criteria: (1) Locations 
with populations that have persisted for 10 years; (2) locations with 
persistent flowering populations; (3) locations at the northern and 
southern range limits of the species; (4) locations with unique genetic 
diversity; and (5) locations with a documented high abundance of 
Johnson's seagrass compared to other areas in the species' range. 
Explanations for these criteria are:
    1. Persistent populations. Surveys of H. johnsonii distribution and 
abundance in the Indian River Lagoon indicate that populations 
fluctuate dramatically. In some areas populations disappear and re-
appear on both intra- and inter-annual time scales (Virnstein et al., 
1997). Some populations have disappeared and not returned. Since sexual 
reproduction and seed dispersal are unknown, this species may rely on 
vegetative fragmentation for recruitment and establishment of new 
populations. Recruitment from fragmentation and migration are random 
processes which do not guarantee the persistence of the species in any 
one location. Perennial populations which have persisted for 10 years 
exist in several locations, including Sebastian Inlet, Fort Pierce 
Inlet, Jupiter Inlet and Hobe Sound. Environmental characteristics of 
these sites appear favorable to the species, while in other locations 
in the lagoon, populations have disappeared. Locations where 
populations have persisted should receive critical habitat 
consideration.
    2. Persistent flowering populations. The existence of male flowers 
or recruitment by seed have not been documented for H. johnsonii. These 
observations suggest that this species does not reproduce sexually, and 
if it does, it is a very rare event. Yet, large clones of mature female 
plants flower prolifically at several locations, including Sebastian 
Inlet, Fort Pierce Inlet, Jupiter Inlet and Lake Worth Lagoon. The 
environmental conditions at these sites appears to be suitable for

[[Page 67539]]

flowering, and if there are any males present, these would be likely 
habitats for successful reproduction. Locations where there are 
persistent flowering populations should receive critical habitat 
consideration.
    3. Northern and southern ranges of the populations. The 
geographical limits of the distributional range of a species can 
indicate a reduction or expansion of the species' range. Greater 
adaptative stresses can occur at the limits of the species' range. If 
the range extension were shrinking, the edges should be protected to 
prevent further loss. Second, the distribution limits may be a point 
where the populations are expanding and invading new environments. The 
unique phenotypic and genotypic characteristics of these populations 
could be an important reservoir for characteristics resistant to 
extinction and conducive to survival and growth. The northern and 
southern ranges of Johnson's seagrass are defined as Sebastian Inlet 
and central Biscayne Bay, respectively. These limits to the species' 
range should receive critical habitat consideration.
    4. Populations with unique genetic variability. The Boca Raton and 
Boynton Beach sites have populations which are distinguished by a 
higher index of genetic variation than any of the central and northern 
populations examined to date. These two sites possibly represent a 
genetically semi-isolated group which could be the reservoir of a large 
part of the overall genetic variation found in this species. 
Information is lacking on the geographic extent of this genetic 
variability. Locations with populations that have unique genetic 
variability should receive critical habitat consideration.
    5. Areas of abundance. The Lake Worth Lagoon and Palm Beach County 
seagrass populations represent an abundant core of Halophila species, 
including Johnson's seagrass. Previously a freshwater lake, Lake Worth, 
was transformed into a lagoon beginning in 1877 when an ocean inlet was 
stabilized. With dredging of the Intracoastal Waterway, shoreline 
development, and sewage disposal, the lagoon was permanently altered. 
Presently, there are about 2000 acres of seagrass in the lagoon 
covering 35 percent of the bottom. It is estimated that between 20 and 
25 percent of the seagrass coverage is comprised of mixed assemblages 
of H. decipiens and H. johnsonii. This is proportionately more 
Halophila coverage than occurs elsewhere along the southeast coast of 
Florida. Presently, conditions within Lake Worth Lagoon and in Palm 
Beach County in general appear to be conducive to the survival of H. 
johnsonii. Locations within Lake Worth and Palm Beach County should be 
considered as critical habitat.
    The area proposed for critical habitat in Lake Worth Lagoon, near 
Bingham Island, consists of the largest recorded contiguous patch of 
Johnson's seagrass: a 30-acre meadow of Johnson's seagrass intermixed 
with sparse coverage of H. decipiens and Halodule wrightii (Smith and 
Mezich, 1991 and 1999).

Need for Special Management Consideration or Protection

    NMFS has determined that the essential areas and features described 
here are at risk and may require special management consideration or 
protection. Special management may be required because of the following 
activities: (1) Vessel traffic and the resulting propeller dredging and 
anchor mooring; (2) dredging; (3) dock, marina, and bridge construction 
and shading from these structures; (4) water pollution; and (5) land 
use practices including shoreline development, agriculture, and 
aquaculture. Activities associated with recreational boat traffic 
account for the majority of human use associated with the proposed 
critical habitat areas. The destruction of the benthic community due to 
boating activities, propeller dredging, anchor mooring, and dock and 
marina construction was observed at all sites during a study by NMFS 
from 1990 to 1992. These activities severely disrupt the benthic 
habitat, breaching root systems, severing rhizomes, and significantly 
reducing the viability of the seagrass community. Propeller dredging 
and anchor mooring in shallow areas are a major disturbance to even the 
most robust seagrasses. This destruction is expected to worsen with the 
predicted increase in boating activity. Trampling of seagrass beds, a 
secondary effect of recreational boating, also disturbs seagrass 
habitat. Populations of Johnson's seagrass inhabiting shallow water and 
water close to inlets, where vessel traffic is concentrated, will be 
most affected.
    The constant sedimentation patterns in and around inlets require 
frequent maintenance dredging, which could either directly remove 
essential seagrass habitat or indirectly affect it by redistributing 
sediments, burying plants and destabilizing the bottom structure. 
Altering benthic topography or burying the plants may remove them from 
the photic zone.
    Permitted dredging of channels, basins, and other in-and on-water 
construction projects cause loss of Johnson's seagrass and its habitat 
through direct removal of the plant, fragmentation of habitat, and 
shading. Docking facilities that, upon meeting certain provisions, are 
exempt from state permitting also contribute to loss of Johnson's 
seagrass through construction impacts and shading. Fixed add-ons to 
exempt docks (such as finger piers, floating docks, or boat lifts) have 
recently been documented as an additional source of seagrass loss due 
to shading (Smith and Mezich, 1999).
    Decreased water transparency caused by suspended sediments, water 
color, and chlorophylls could have significant detrimental effects on 
the distribution and abundance of the deeper water populations of 
Johnson's seagrass. A distribution survey in Hobe and Jupiter Sounds 
indicates that the abundance of this seagrass diminishes in the more 
turbid interior portion of the lagoon where reduced light limits 
photosynthesis.
    Other areas of concern include seagrass beds located in proximity 
to rivers and canal mouths where low salinity, highly colored water is 
discharged. Freshwater discharge into areas adjacent to seagrass beds 
may provoke physiological stress upon the plants by reducing the 
salinity levels. Additionally, colored waters released into these areas 
reduce the amount of sunlight available for photosynthesis by rapidly 
attenuating shorter wavelengths of Photosynthetically Active Radiation.
    Also, continuing and increasing degradation of water quality due to 
increased land use and water management threatens the welfare of 
seagrass communities. Nutrient over-enrichment caused by inorganic and 
organic nitrogen and phosphorous loading via urban and agricultural 
land run-off stimulates increased algal growth that may smother 
Johnson's seagrass, shade rooted vegetation, and diminish the oxygen 
content of the water. Low oxygen conditions have a demonstrated 
negative impact on seagrasses and associated communities.
    Special consideration and protection for these and other habitat 
features are evaluated in the ESA section 7 consultation process. 
Special management needs and the protection of these habitat features 
are being addressed in the development and implementation of the 
recovery plan.

Activities That May Affect Critical Habitat

    A wide range of activities funded, authorized or carried out by 
Federal agencies may affect the essential habitat requirements of 
Johnson's seagrass. These include authorization by the COE for beach 
nourishment, dredging, and

[[Page 67540]]

related activities including construction of docks and marinas; bridge 
construction projects funded by the Federal Highway Administration; 
actions by the U.S. Environmental Protection Agency and the COE to 
manage freshwater discharges into waterways; regulation of vessel 
traffic by the U.S. Coast Guard; management of national refuges and 
protected species by the U.S. Fish and Wildlife Service; management of 
vessel traffic (and other activities) by the U.S. Navy; approval of 
changes to Florida's coastal zone management plan by NOAA's National 
Ocean Service, and management of commercial fishing and protected 
species by NMFS.

Expected Impacts of Designating Critical Habitat

    This designation will identify specific habitat areas that have 
been determined to be essential for the conservation of Johnson's 
seagrass and that may be in need of special management considerations 
or protection. It will require Federal agencies to evaluate their 
activities with respect to the critical habitat of this species and to 
consult with NMFS pursuant to section 7 of the ESA before engaging in 
any action that may affect the critical habitat.
    As discussed in the section on activities that may impact essential 
habitat and features, the Federal activities that may affect critical 
habitat are the same activities that may affect the species itself. For 
plants, this is particularly true when analyzing the impacts of 
designating critical habitat. For example, the activities that affect 
water quality, an essential feature of critical habitat, will also be 
considered in terms of how they affect the species itself.
    Should this proposed designation of critical habitat be adopted, 
Federal agencies will continue to engage in ESA section 7 consultations 
to determine if the actions they authorize, fund or carry out are 
likely to jeopardize the continued existence of Johnson's seagrass; 
however, with designation, they would also need to address explicitly 
impacts to the species' critical habitat. This is not expected to 
affect materially the scope of future consultations or result in 
greater economic impacts, since most impacts to Johnson's seagrass 
habitat will already be considered in ESA section 7 consultations.
    The economic costs to be considered in a critical habitat 
designation are the incremental costs of designation above the economic 
impacts attributable to listing or attributable to authorities other 
than the ESA. NMFS has determined that there are few, if any, 
incremental net costs for areas within the species' current 
distribution, and no areas outside the current range are proposed for 
critical habitat designation.

Proposed Critical Habitat; Geographic Extent

    Based on available information, NMFS proposes to designate critical 
habitat that is considered essential for the survival and that may 
require special management consideration or protection. The critical 
habitat designation proposed by this rule includes: (1) Locations with 
populations that have persisted for 10 years; (2) locations with 
persistent flowering populations; (3) locations at the northern and 
southern range limits of the species; (4) locations with unique genetic 
diversity; and (5) core locations with a documented high abundance of 
Johnson's seagrass compared to other areas in the species' range.
    NMFS is not including in the proposed designation any areas outside 
the species' currently known geographical area. NMFS has concluded 
that, at this time, proper management of the essential features of the 
areas around Sebastian and Ft. Pierce Inlet, Hobe Sound, Jupiter Inlet, 
Lake Worth, Boca Raton, and northern Key Biscayne will be sufficient to 
provide for the survival and recovery of this species. NMFS may 
reconsider this evaluation and propose additional areas for critical 
habitat at any time. Johnson's seagrass occurs in numerous locations 
throughout its range in areas outside of those currently being proposed 
for critical habitat. Information on genetic variability and 
persistence of Johnson's seagrass is currently lacking in these areas. 
Future research, however, involving genetic studies and comprehensive, 
long-term field surveys, could identify additional areas that are 
essential to the conservation of the species and require special 
management considerations, and would, therefore, warrant designation as 
critical habitat. Also, if a male flower of Johnson's seagrass is 
identified in an area, this area should be designated as critical 
habitat.
    The 10 areas proposed for critical habitat designation include:
    (1) A portion of the Indian River, Florida, north of Sebastian 
Inlet Channel, defined by the following coordinates:

Northwest corner: 27 deg.51'15.03''N, 80 deg.27'55.49''W
Northeast corner: 27 deg.51'16.57''N, 80 deg.27'53.05''W
Southwest corner: 27 deg.51'08.85''N, 80 deg.27'50.48''W
Southeast corner: 27 deg.51'11.58''N, 80 deg.27'47.35''W

    (2) A portion of the Indian River, Florida, south of the Sebastian 
Inlet Channel, defined by the following coordinates:

Northwest corner: 27 deg.51'01.32''N, 80 deg.27'46.10''W
Northeast corner: 27 deg.51'02.69''N, 80 deg.27'45.27''W
Southwest corner: 27 deg.50'59.08''N, 80 deg.27'41.84''W
Southeast corner: 27 deg.51'01.07''N, 80 deg.27'40.50''W

    (3) A portion of the Indian River Lagoon in the vicinity of the 
Fort Pierce Inlet. This site is located on the north side of the 
entrance channel just west of a small mangrove vegetated island where 
the main entrance channel bifurcates to the north. The area is defined 
by the following coordinates:

Northwest corner: 27 deg.28'06.00''N, 80 deg.18'48.89''W
Northeast corner: 27 deg.28'04.43''N, 80 deg.18'42.25''W
Southwest corner: 27 deg.28'02.86''N, 80 deg.18'49.06''W
Southeast corner: 27 deg.28'01.46''N, 80 deg.18'42.42''W

    (4) A portion of the Indian River Lagoon, Florida, north of the St. 
Lucie Inlet, from South Nettles Island to the Florida Oceanographic 
Institute, defined with the following coordinates:

Northwest corner: 27 deg.16'44.04''N, 80 deg.14'00.00''W
Northeast corner: 27 deg.16'44.04''N, 80 deg.12'51.33''W
Southwest corner: 27 deg.12'49.70''N, 80 deg.11'46.80''W
Southeast corner: 27 deg.12'49.70''N, 80 deg.11'02.50''W

    (5) Hobe Sound beginning at State Road 708 (27 deg.03'49.90''N, 
80 deg.07'20.57''W) and extending south to 27 deg.00'00.00''N, 
80 deg.05#32.54''W.

    (6) Jupiter Inlet at a site located just west of the entrance to 
Zeek's Marina on the south side of Jupiter Inlet and defined by the 
following coordinates (note a south central point was included to 
better define the shape of the southern boundary):

Northwest corner: 26 deg.56'43.34''N, 80 deg.04'47.84''W
Northeast corner: 26 deg.56'40.93''N, 80 deg.04'42.61''W
Southwest corner: 26 deg.56'40.73''N, 80 deg.04'48.65''W
South central point: 26 deg.56'38.11''N, 80 deg.04'45.83''W
Southeast corner: 26 deg.56'38.31''N, 80 deg.04'42.41''W

    (7) A portion of Lake Worth, Florida, just north of Bingham Island 
defined by the following coordinates:


[[Page 67541]]


Northwest corner: 26 deg.40'44.00''N, 80 deg.02'39.00''
Northeast corner: 26 deg.40'40.00''N, 80 deg.02'34.00''W
Southwest corner: 26 deg.40'32.00''N, 80 deg.02'44.00''W
Southeast corner: 26 deg.40'33.00''N, 80 deg.02'35.00''W

    (8) A portion of Lake Worth Lagoon, Florida, located just north of 
the Boynton Inlet, on the west side of the Intracoastal Waterway, 
defined by the following coordinates:

Northwest corner: 26 deg.33'28.00''N, 80 deg.02'54.00''W
Northeast corner: 26 deg.33'30.00''N, 80 deg.03'04.00''W
Southwest corner: 26 deg.32'50.00''N, 80 deg.03'11.00''W
Southeast corner: 26 deg.32'50.00''N, 80 deg.02'58.00''W

    (9) A portion of northeast Lake Wyman, Boca Raton, Florida, defined 
by the following coordinates:

Northwest corner: 26 deg.22'27.00''N, 80 deg.04'23.00''W
Northeast corner: 26 deg.22'27.00''N, 80 deg.04'18.00''W
Southwest corner: 26 deg.22'23.00''N, 80 deg.04'22.00''W
Southeast corner: 26 deg.22'23.00''N, 80 deg.04'19.00''W

    (10) A portion of Northern Biscayne Bay, Florida, defined by the 
following: The northern boundary of Biscayne Bay Aquatic Preserve, N.E. 
163rd Street, and including all parts of the Biscayne Bay Aquatics 
Preserve as defined in 18-18.002 of the Florida Administrative Code 
(F.A.C.) excluding the Ortega River beyond its mouth, and all Federal 
navigation channels at the Port of Miami, not including the 
Intracoastal Waterway, to the currently documented southern-most range 
of Johnson's seagrass, Central Key Biscayne (25 deg.45'N).
    Maps are provided for reference purposes to guide Federal agencies 
and other interested parties in locating the general boundaries of the 
proposed critical habitat. They do not constitute the definition of the 
boundaries of critical habitat. Persons must refer to the regulations 
at 50 CFR 226.91 for the actual boundaries of the designated critical 
habitat. Figures 1 through 9 illustrate the ten areas proposed as 
critical habitat for Johnson's seagrass.

Request for Comments

    NMFS is soliciting information, comments and/or recommendations on 
any aspect of this proposal from all interested parties. NMFS will 
consider all information, comments and recommendations received before 
reaching a final decision.
    The public hearing on this proposed action has been scheduled for 
Thursday, December 2, 1999. Interested parties will have an opportunity 
to provide oral and written testimony at the public hearing.

Special Accommodations

    This meeting is physically accessible to people with disabilities. 
Requests for sign language interpretation or other auxiliary aids 
should be directed to Layne Bolen (see ADDRESSES).

References

    The complete citations for the references used in this document are 
available upon request (see FOR FURTHER INFORMATION CONTACT).

Classification

    NMFS has determined that Environmental Assessments or an 
Environmental Impact Statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared for 
this critical habitat designation. See Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
    NMFS proposes to designate 10 areas in the range of Johnson's 
seagrass as critical habitat. This designation will not impose any 
additional requirements or economic effects upon small entities beyond 
those which may accrue from section 7 of the ESA. Section 7 requires 
Federal agencies to ensure that any action they carry out, authorize, 
or fund is not likely to jeopardize the continued existence of any 
listed species or to result in the destruction or adverse modification 
of critical habitat (ESA section 7(a)(2)). The consultation 
requirements of section 7 are nondiscretionary and are effective at the 
time of species' listing. Therefore, Federal agencies must consult with 
NMFS and ensure that their actions do not jeopardize a listed species, 
regardless of whether critical habitat is designated.
    In the future, should NMFS determine that designation of additional 
habitat areas in the species' range and/or outside the species' current 
range is necessary for conservation and recovery, NMFS will analyze the 
incremental costs of the action and assess its potential impacts on 
small entities, as required by the Regulatory Flexibility Act.
    Accordingly, the Chief Counsel for Regulation of the Department of 
Commerce has certified to the Chief Counsel for Advocacy of the Small 
Business Administration that the proposed critical habitat designation, 
if adopted, would not have a significant economic impact on a 
substantial number of small entities, as described in the Regulatory 
Flexibility Act.
    The Assistant Administrator for Fisheries, NOAA, has determined 
that the proposed designation is consistent to the maximum extent 
practicable with the approved Coastal Zone Management Program of the 
State of Florida. This determination has been submitted for review by 
the responsible State agency under section 307 of the Coastal Zone 
Management Act.
    The Assistant Administrator for Fisheries, NOAA, has determined 
this rule is not significant for purposes of E.O. 12866.
    This proposed rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.
    In accordance with E.O. 13132, NMFS has prepared the following 
federalism summary impact statement. When NMFS issued a proposed rule 
to designate critical habitat for Johnson's seagrass in 1994, NMFS 
began consulting with the State of Florida. While the State expressed 
support for protection of Johnson's seagrass, it also expressed concern 
over the possible economic impacts of a critical habitat designation. 
NMFS understands the concerns of the State regarding timely maintenance 
of state and federal navigation channels, ports, and inlets, and NMFS' 
goal is to protect the species with minimal effects to these 
activities. Concerns regarding possible economic impacts of a critical 
habitat designation are addressed in the preamble to this rule. In 
addition, NMFS has completed a conference opinion with the COE on the 
effects of maintenance dredging on Johnson's seagrass and its proposed 
critical habitat. NMFS expects that operations on ports will not be 
negatively impacted by this proposed critical habitat designation.

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[[Page 67551]]

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: November 29, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set forth in the preamble, 50 CFR part 226 is 
proposed to be amended as follows:

PART 226--DESIGNATED CRITICAL HABITAT

    1. The authority citation for part 226 continues to read as 
follows:

    Authority: 16 U.S.C. 1533.

    2. Section 226.211 is added to part 226 to read as follows:


Sec. 226.211  Critical habitat for Johnson's seagrass

    Critical habitat is designated to include substrate and water in 
the following ten portions of the Indian River Lagoon and Biscayne Bay 
within the current range of Johnson's seagrass.
    (a) A portion of the Indian River, Florida, north of Sebastian 
Inlet Channel, defined by the following coordinates:

Northwest corner: 27 deg.51'15.03''N, 80 deg.27'55.49''W
Northeast corner: 27 deg.51'16.57''N, 80 deg.27'53.05''W
Southwest corner: 27 deg.51'08.85''N, 80 deg.27'50.48''W
Southeast corner: 27 deg.51'11.58''N, 80 deg.27'47.35''W

    (b) A portion of the Indian River, Florida, south of the Sebastian 
Inlet Channel, defined by the following coordinates:

Northwest corner: 27 deg.51'01.32''N, 80 deg.27'46.10''W
Northeast corner: 27 deg.51'02.69''N, 80 deg.27'45.27''W
Southwest corner: 27 deg.50'59.08''N, 80 deg.27'41.84''W
Southeast corner: 27 deg.51'01.07''N, 80 deg.27'40.50''W

    (c) A portion of the Indian River Lagoon in the vicinity of the 
Fort Pierce Inlet. This site is located on the north side of the 
entrance channel just west of a small mangrove vegetated island where 
the main entrance channel bifurcates to the north. The area is defined 
by the following coordinates:

Northwest corner: 27 deg.28'06.00''N, 80 deg.18'48.89''W
Northeast corner: 27 deg.28'04.43''N, 80 deg.18'42.25''W
Southwest corner: 27 deg.28'02.86''N, 80 deg.18'49.06''W
Southeast corner: 27 deg.28'01.46''N, 80 deg.18'42.42''W

    (d) A portion of the Indian River Lagoon, Florida, North of the St. 
Lucie Inlet; from South Nettles Island to the Florida Oceanographic 
Institute, defined with the following coordinates:

Northwest corner: 27 deg.16'44.04''N, 80 deg.14'00.00''W
Northeast corner: 27 deg.16'44.04''N, 80 deg.12'51.33''W
Southwest corner: 27 deg.12'49.70''N, 80 deg.11'46.80''W
Southeast corner: 27 deg.12'49.70''N, 80 deg.11'02.50''W

    (e) Hobe Sound beginning at State Road 708 (27 deg.03'49.90''N, 
80 deg.07'20.57''W) and extending south to 27 deg.00'00.00''N, 
80 deg.05'32.54''W.
    (f) Jupiter Inlet at a site located just west of the entrance to 
Zeek's Marina on the south side of Jupiter Inlet and defined by the 
following coordinates (note a south central point was included to 
better define the shape of the southern boundary):

Northwest corner: 26 deg.56'43.34''N, 80 deg.04'47.84''W
Northeast corner: 26 deg.56'40.93''N, 80 deg.04'42.61''W
Southwest corner: 26 deg.56'40.73''N, 80 deg.04'48.65''W
South central point: 26 deg.56'38.11''N, 80 deg.04'45.83''W
Southeast corner: 26 deg.56'38.31''N, 80 deg.04'42.41''W
    (g) A portion of Lake Worth, Florida, just north of Bingham Island 
defined by the following coordinates:

Northwest corner: 26 deg.40'44.00''N, 80 deg.02'39.00''W
Northeast corner: 26 deg.40'40.00''N, 80 deg.02'34.00''W
Southwest corner: 26 deg.40'32.00''N, 80 deg.02'44.00''W
Southeast corner: 26 deg.40'33.00''N, 80 deg.02'35.00''W

    (h) A portion of Lake Worth Lagoon, Florida, located just north of 
the Boynton Inlet, on the west side of the Intracoastal Waterway, 
defined by the following coordinates:

Northwest corner: 26 deg.33'28.00''N, 80 deg.02'54.00''W
Northeast corner: 26 deg.33'30.00''N, 80 deg.03'04.00''W
Southwest corner: 26 deg.32'50.00''N, 80 deg.03'11.00''W
Southeast corner: 26 deg.32'50.00''N, 80 deg.02'58.00''W

    (i) A portion of northeast Lake Wyman, Boca Raton, Florida, defined 
by the following coordinates:

Northwest corner: 26 deg.22'27.00''N, 80 deg.04'23.00''W
Northeast corner: 26 deg.22'27.00''N, 80 deg.04'18.00''W
Southwest corner: 26 deg.22'23.00''N, 80 deg.04'22.00''W
Southeast corner: 26 deg.22'23.00''N, 80 deg.04'19.00''W

    (j) A portion of Northern Biscayne Bay, Florida, defined by the 
following: The northern boundary of Biscayne Bay Aquatic Preserve, NE. 
163rd Street, and including all parts of the Biscayne Bay Aquatics 
Preserve as defined in 18-18.002 of the Florida Administrative Code 
(F.A.C.) excluding the Ortega River beyond its mouth, and all Federal 
navigation channels at the Port of Miami, not including the 
Intracoastal Waterway, to the currently documented southernmost range 
of Johnson's seagrass, Central Key Biscayne (25 deg. 45#N).

[FR Doc. 99-31304 Filed 11-29-99; 4:07 pm]
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