[Federal Register Volume 63, Number 177 (Monday, September 14, 1998)]
[Rules and Regulations]
[Pages 49035-49041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24357]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 980811214-8214-01; I.D. 052493B]


Endangered and Threatened Species; Threatened Status for 
Johnson's Seagrass

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

ACTION: Final rule.

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SUMMARY: NMFS is issuing a final rule determining Johnson's seagrass 
(Halophila johnsonii) to be a threatened species pursuant to the 
Endangered Species Act (ESA) of 1973, as amended, which means it is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. Johnson's 
seagrass is rare and exhibits one of the most limited geographic 
distributions of any seagrass. Within its limited range (lagoons on the 
east coast of Florida from Sebastian Inlet to central Biscayne Bay), it 
is one of the least abundant species. Because of its limited 
reproductive capacity (apparently only asexual) and limited energy 
storage capacity (small root-rhizome structure and high biomass 
turnover), it is less likely to be able to repopulate an area when lost 
due to anthropogenic or natural disturbances. NMFS will soon issue 
protective regulations under section 4(d) of the ESA for this species.

DATES: Effective October 14, 1998.

ADDRESSES: Colleen Coogan, NMFS, Southeast Region, Protected Resources 
Division, 9721 Executive Center Drive, St. Petersburg, FL 33702-2432; 
Angela Somma, NMFS, Office of Protected Resources, 1315 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Colleen Coogan, Southeast Region, 
NMFS, (727) 570-5312, or Angela Somma, Office of Protected Resources, 
NMFS, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    NMFS published a proposed rule to list Johnson's seagrass as a 
threatened species on September 15, 1993 (58 FR 48326). Designation of 
critical habitat was proposed 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. NMFS reopened 
the comment period for the proposed listing on April 20, 1998 (63 FR 
19468).
    The information forming the basis for NMFS' 1993 proposal has been 
peer reviewed, and new information confirms NMFS' conclusions regarding 
the threatened status of Johnson's seagrass. As stated in the notice 
reopening the comment period, the additional information supplements 
available data on the status and distribution of Johnson's seagrass. 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, held in St. Petersburg, Florida, in November 
1996, were summarized in the workshop proceedings (Kenworthy, 1997) 
submitted to NMFS on October 15, 1997. The notice reopening the comment 
period contains a summary of the workshop proceedings (63 FR 19468). 
This final rule contains a brief description of those workshop 
proceedings, and updates the research findings and analysis since NMFS' 
1993 proposal.

Updated Status Report

    The biology of Johnson's seagrass is discussed in the proposed rule 
to list the species as threatened (58 FR 48326, September 15, 1993). 
The proposed rule includes information on the status of the species, 
its life history characteristics, and habitat requirements. Johnson's 
seagrass is one of twelve species of the genus Halophila. Halophila 
species are distinguished morphologically from other seagrasses in 
their possession of either a pair of stalked leaves without scales or a 
pseudo whorl of leaves. Identifying characteristics of H. johnsonii 
include smooth foliage leaves in pairs 10-20 mm long, a creeping 
rhizome stem, sessile (attached to their bases) flowers, and longnecked 
fruits. Most Halophila species are reduced in size, more shallow 
rooted, and have two to three orders of magnitude less biomass per unit 
area compared to all other seagrasses. The most outstanding difference 
between H. johnsonii and other species is its distinct differences in 
sexual reproductive characteristics. While H. decipiens is monoecious 
(has both female and male flowers on the same plant) and successfully 
reproduces and propagates by seed, H. johnsonii is dioecious (has 
flowers of a single sex on the same plant). However, the male flower 
has never been described either in the field or in laboratory culture. 
The absence of male flowers supports the hypothesis that sexual 
reproduction is absent in this species, and propagation must be 
exclusively vegetative. After periods of unfavorable environmental 
conditions of growth and vegetative branching, the regrowth and 
reestablishment of surviving populations of Johnson's seagrass would be 
significantly more difficult than for species with a sexual life 
history.

[[Page 49036]]

    The status review that led to the proposed rule to list this 
species as threatened under the ESA included data from extensive field 
work at three sites (Hobe and Jupiter sounds, Sebastian Inlet, and Ft. 
Pierce Inlet) in the Indian River area during 1990 to 1992. Johnson's 
seagrass was the least abundant of the seagrass species within the 
study area and was distributed in patches that range in size from a few 
centimeters to hundreds of meters. Biomass, patch sizes, and leaf pair 
densities were always less than those measured in H. decipiens. The 
destruction of the benthic community due to boating activities, 
propeller dredging and anchor mooring was observed at all sites during 
this study.
    Based on new qualitative and quantitative benthic surveys and 
interviews with scientists, the workshop report confirmed the extremely 
limited geographic distribution of H. johnsonii to patchy and 
vertically disjunct populations between Sebastian Inlet and northern 
Biscayne Bay on the east coast of Florida, finding no verifiable 
sightings outside the range already reported. Since additional surveys 
did not locate any male flowers, nor was seedling recruitment 
confirmed, the restricted distribution and abundance of Johnson's 
seagrass is attributed to a reliance on vegetative means of 
reproduction and growth (Kenworthy, 1993; Kenworthy, 1997). High 
densities of apical meristems, rapid rates of horizontal growth, and a 
fast biomass turnover were suggested to explain the appearance and 
disappearance of H. johnsonii observed in disturbed areas and on fixed 
survey transects. The workshop report confirms the conclusions from the 
previous data.
    The results of expanded surveys during the period 1994 to 1996 
corroborated previous information that: (1) H. johnsonii does not occur 
further north than Sebastian Inlet; and (2) areal distribution is 
patchy and disjunct from Sebastian Inlet to Jupiter Inlet. 
Additionally, these transects confirmed that H. johnsonii occurs over a 
depth range extending from the intertidal down to approximately -2 m 
mean tidal height. Average percent cover of H. johnsonii per transect 
ranged from a minimum of 0.2 percent in winter 1996 to 8.5 percent in 
summer 1994. Relative to the other six species that occur in the 
lagoon, H. johnsonii comprises less than 1.0 percent of the total 
abundance of seagrasses. The transect data corroborates previous 
intensive surveys in Jupiter and Hobe sounds, and near Fort Pierce 
Inlet (Kenworthy, 1993; Gallegos and Kenworthy, 1995; Kenworthy, 1997).
    The potential for vegetative expansion, a perennial and intertidal 
growth habit, and a relatively high tolerance for fluctuating salinity 
and temperature may enable Johnson's seagrass to colonize and thrive in 
environments where other seagrasses cannot survive (Kenworthy, 1993; 
Kenworthy, 1997). Additional molecular genetic information was reviewed 
in the workshop which supports distinguishing H. johnsonii as a 
separate species from H. decipiens (Kenworthy, 1993), although more 
detailed and extensive phylogenetic studies were suggested to determine 
the origin and source of genetic diversity in Johnson's seagrass 
(Kenworthy, 1997). The first quantitative evidence of faunal community 
diversity and abundance in H. johnsonii meadows was also reported at 
this workshop. Results indicated that the infaunal communities of H. 
johnsonii are more similar to the larger seagrass, Halodule wrightii 
than to unvegetated bottom.
    It is the policy of NMFS and the U.S. Fish and Wildlife Service 
(FWS) to solicit the expert opinions of three appropriate and 
independent specialists regarding pertinent scientific or commercial 
data and assumptions relating to the taxonomy, population models, and 
supportive biological and ecological information for species under 
consideration for listing. Also, it is NMFS' policy to summarize in the 
final decision document the opinions of all independent peer reviews 
received and to include all such reports, opinions, and other data in 
the administrative record of the final decision.
    In response to NMFS's three solicitations of peer review on 
Johnson's seagrass, a response was received from Susan Williams, Ph.D., 
Associate Professor, Department of Biology and Director, Coastal and 
Marine Institute, College of Sciences, San Diego State University and 
from Kimon T. Bird, Ph.D., Center for Marine Science Research, 
University of North Carolina at Wilmington. Their opinions, which 
support the NMFS listing proposal, are included in the following 
Summary of Comments section.

Summary of Comments

    The State of Florida's Department of Environmental Protection 
(FDEP) and Department of Community Affairs (DCA) submitted several sets 
of comments. Many of these comments pertained to the consideration of 
critical habitat designation, which is not being determined in this 
rulemaking. For this present rule, NMFS will address only the comments 
related to the listing of Johnson's seagrass as threatened.
    The December 8, 1993, comments from FDEP concurred that threatened 
status under the ESA should be assigned to Johnson's seagrass because 
its distribution is among the most restricted of seagrass species, 
because it lacks sexual reproduction, and because it depends on 
vegetative reproduction. All of these factors make it particularly 
vulnerable to local extinction from various perturbations or 
environmental changes.
    FDEP stated that johnsonii and other Halophila species have been 
shown to have relatively high productivity and turnover rates and may 
be more ecologically important than previously thought. Designation as 
a threatened species would encourage further study of Johnson's 
seagrass and would assist FDEP in developing conservation plans. Also, 
FDEP agreed with NMFS that existing protection for this species was 
inadequate.
    FDEP included the following caveats: First, the presently known 
geographical locations include several inlets that have regularly 
experienced maintenance dredging (one since 1948). Yet Johnson's 
seagrass is still evident around these inlets and in other areas of 
high human use. It could be argued that maintenance dredging has 
enhanced this species, or at least not harmed it. Second, the proposed 
rulemaking states that there is no evidence that commercial, 
recreational, scientific or educational activities have contributed to 
the decline of this species. If this species is listed, what more needs 
to be done to protect it? Third, identification of this species is 
difficult except by seagrass experts. Those individuals surveying sites 
need to understand how to clearly identify H. johnsonii in the field.
    In March 1994, NMFS received additional comments from FDEP 
concerning the listing proposal, stating that Johnson's seagrass has 
only recently been recognized as a separate species and that FDEP is 
seriously concerned with the general lack of knowledge about the 
organism, especially the many aspects of basic life history. FDEP 
assumed that the listing of this species as threatened under the ESA 
should promote the collection of additional knowledge for improved 
management decisions, including the ability to properly identify the 
plant in the field. Other Halophila species have been underestimated 
regarding their importance to nearshore ecosystems, and the FDEP did 
not want this species to be overlooked if it had a significant role. 
FDEP recommended that NMFS consider conducting an appropriate research 
program linked to the listing process and that more must be known

[[Page 49037]]

about the species so that the most appropriate management strategies 
can be developed. FDEP restated the caveats made in the December 1993, 
response.
    In September 1994, FDEP commented that the steps being taken by 
NMFS are necessary to adequately protect this species from loss 
associated with human-related activities. Although FDEP had 
reservations as to the effects of inlet-related maintenance activities 
on the continued existence of Johnson's seagrass, it noted that it is 
clear that direct removal of existing seagrass will be detrimental to 
the survival of this species. It supported listing the species as a 
threatened species.
    In January 1994 and June 1994, DCA responded to NMFS' request for a 
coastal zone consistency determination for the designation of critical 
habitat for Johnson's seagrass. Although DCA referred to both the 
proposed listing and critical habitat designation in responses to NMFS, 
the comments from individual state agencies and departments addressed 
primarily the critical habitat portion.
    In 1998, DCA wrote, on behalf of the state, that it does not object 
to the listing of Johnson's seagrass as a threatened species.

Other Comments

    Issue 1: Several commenters questioned whether NMFS has adequate 
information to determine that Johnson's seagrass should be listed. 
Others questioned whether it is a separate species rather than a 
possible mutation or an exotic species not native to the area. Some 
questioned whether NMFS could list a species without knowing how it 
reproduces.
    One of the peer reviewers, Dr. Susan L. Williams, stated that while 
there are data gaps for the species and such data should be obtained, 
it is justifiable to extrapolate from other species in the genus 
because seagrass congeners are remarkably alike in their ecology. While 
it is important to clarify the taxonomic status of the species, it is 
not an issue that needs to be resolved before listing because the 
morphology of H. johnsonii is distinct enough from H. decipiens to 
enable field identification and thus its distribution across habitats.
    In response to questions on whether H. johnsonii is a separate 
species, another peer reviewer, Dr. Kimon T. Bird, stated that the 
morphological and flowering characteristics of this species are 
markedly different from the conspecific species H. engelmanii and H. 
decipiens. Recently, H. johnsonii was compared to other Halophila 
species from Florida and the Indo-Pacific using isozymes sulfated 
flavonoids and DNA fingerprinting (Jewett-Smith et al. 1997). Based on 
these analyses, H. johnsonii separates out well from other Halophila 
species in Florida and appears more similar to the narrow leaved forms 
of the Indo-Pacific based on the use of this DNA analysis.
    Regarding the mode of reproduction, Dr. Bird stated that the data 
provided support the absence of seeds, and he agrees that this species 
reproduces only by asexual methods. Dr. Williams states that there is 
concern about the lack of evidence of sexual reproduction since male 
flowers have not been observed in H. johnsonii. Furthermore, the sexual 
reproduction by seagrasses is poorly understood compared to other 
angiosperms (e.g. seaweeds), and there have been cases where further 
studies have revised conclusions on asexuality. Apomixis (vegetative 
reproduction where normal sexual processes are not functioning or 
greatly reduced in number) has not been verified in seagrasses.
    Nonetheless, considerable field surveys and collections have been 
conducted on H. johnsonii to conclude that if males and/or viable seeds 
do occur, they are quite rare in the areas studied. Thus, the 
attributes of potentially limited distribution, rare (if present at 
all) sexual reproduction, and uncertain vegetative dispersal makes the 
species prone to disturbance. Dr. Williams also concludes that limited 
and isolated populations of H. johnsonii that rely primarily on 
vegetative dispersal are probably very prone to local extinction due to 
disturbances and stochastic events. The numerous field searches and 
laboratory transplant culture experiments have indicated the presence 
of pistillate flowers (no staminate flowers (i.e., only asexual 
reproduction) over the 16 years since H. johnsonii was first described.
     NMFS Response: The 1996 NMFS sponsored workshop addressed several 
of these concerns. For example, since additional surveys have not 
located any male flowers, nor has seedling recruitment been confirmed, 
the workshop report attributed the distribution and abundance of 
Johnson's seagrass to a reliance on vegetative means of reproduction 
and growth. High densities of apical meristems, rapid rates of 
horizontal growth, and a fast leaf turnover were suggested to explain 
the appearance and disappearance of H. johnsonii observed in disturbed 
areas and on survey transects. The workshop report suggests that this 
potential for vegetative expansion, a perennial and intertidal growth 
habit, and a relatively high tolerance for fluctuating salinity and 
temperature may enable Johnson's seagrass to colonize and thrive in 
environments where other seagrasses cannot survive.
    Additional molecular genetic information was reviewed in the 
workshop which supports distinguishing H. johnsonii as a separate 
species from H. decipiens, although more detailed and extensive 
phylogenetic studies were suggested to determine the origin and source 
of genetic diversity in Johnson's seagrass.
    Issue 2: Some commenters believe the species is much more abundant 
in South Florida than the status review indicates and that it occurs in 
places other than the east coast of Florida (e.g., Bahamas or Florida 
west coast).
    Dr. Bird states that he contacted three trained marine botanists 
along the west coast of Florida. They reported that they had never seen 
H. johnsonii along the west coast. In addition, McMillan made no 
reference to its presence in Texas when writing the paper describing 
the new species, even though he is far more familiar with the marine 
botany of Texas than Florida. While several commenters reported seeing 
it in the Bahamas, their observations were anecdotal. Based on the 
information provided, Dr. Bird concurs that H. johnsonii is limited to 
a narrow geographic range along the east coast of Florida.
    Dr. Williams states that knowledge of the distribution of H. 
johnsonii throughout the subtropical and tropical Atlantic should be 
extended, but it should not affect listing the species because in its 
known distribution, it is vulnerable to disturbances of dredging and 
reduced water clarity, as are all the co-occurring seagrass species.
     NMFS Response: In 1986, Robert Virnstein (St. John's River Water 
Management District) and Kalani Cairns (U.S. Fish and Wildlife Service) 
mapped a 50-mile section of the Indian River Lagoon from St. Lucie 
Inlet to Sebastian Inlet. Even though H. johnsonii and H. decipiens 
seemed to be proliferating, data did not indicate whether this was a 
trend or a one-time increase. Also, because both species have short 
leaves, they may have been overlooked in previous surveys. They stated 
that 1986 was considered a ``good'' year for seagrasses even though 
many areas were ``stressed'' and had lost seagrasses. Furthermore, they 
opined that one ``bad'' year could result in the loss of up to half of 
the present coverage and no one could predict whether such loss would 
be permanent or that the species would recover.
    Virnstein and Morris (1996-personal communication) have said that 
their 3-year study of 74 seagrass transects in the

[[Page 49038]]

Indian River Lagoon has yielded information on deeper water 
distributions measuring a few centimeters to more than several hundred 
meters. These results do not change the distributional limits within 
the original range of the species.
    The report of the NMFS workshop confirms the extremely limited 
geographic distribution of H. johnsonii to patchy and vertically 
disjunct areas between Sebastian Inlet and northern Biscayne Bay on the 
east coast of Florida, finding no verifiable sightings outside of the 
range already reported. This finding is based on new qualitative and 
quantitative benthic surveys and interviews with scientists.
    Issue 3: Some commenters remarked that it is difficult to identify 
Johnson's seagrass in the field and that those reviewing sites need to 
understand how to clearly identify the species.
    NMFS Response: Distinct morphological differences allow for both 
field and laboratory differentiation of the species. H. johnsonii is 
distinct from the conspecific H. decipiens in basic leaf 
characteristics. H. johnsonii has elongated linear leaves with complete 
margins and H. decipiens has broad, elliptical (paddle-shaped) leaves 
with serrated margins. Increased outreach after listing, including 
recovery planning and section 7 consultations, will improve 
stakeholders' familiarity with these differences.
    Issue 4: Some commenters questioned the presence of Johnson's 
seagrass near inlets that have been routinely dredged for years and in 
other areas of high human usage. The question is whether certain 
dredging, especially maintenance dredging, impacts Johnson's seagrass, 
or whether the species occurs in these areas as a result of dredging.
    NMFS Response: The effects of maintenance dredging on Johnson's 
seagrass have not yet been characterized. Johnson's seagrass requires 
suitable salinity levels, water transparency, and water quality as well 
as stable, unconsolidated sediments. These elements are found in 
shallow waters and shoals around inlets and disturbed areas as well as 
in undisturbed, more isolated deeper areas of the lagoon. Common 
factors in its distribution appear to be its ability to grow in 
association with other species and its ability to survive in shallow 
intertidal flats environments typical of the flood tide deltas near 
inlets. Johnson's seagrass may extend the coverage of seagrasses within 
lagoons in some of the zones where other grasses do not grow.
    Dr. Bird questions the ability of H. johnsonii to withstand nearby 
dredging activities because the sediments of the Indian River contain a 
good deal of highly organic particulate materials. When resuspended by 
dredging activities or other physical disturbances, the fine 
particulate material can attenuate light (reducing Photosynthetically 
Active Radiation (PAR)) and be a limiting factor in photosynthesis and 
subsequent seagrass growth and maintenance.
    Several scientists working in the area and for the state of Florida 
stated that it is clear that direct removal of existing seagrass 
through new construction will be detrimental to the survival of 
Johnson's seagrass. There have been no reports of healthy populations 
outside the presently known range. The survival of the species likely 
depends on maintaining existing viable populations, especially in areas 
where large patches are found.
    Issue 5: Some commenters said that seagrasses have overwhelming 
importance to the ecology and economy of South Florida. Seagrasses are 
high primary producers within their ecosystem. They provide valuable 
habitat as nurseries, provide refuge for fisheries, and recycle 
nutrients throughout their ecosystems. Seagrasses are also a food 
source for endangered green turtles and the Florida manatee. When 
seagrass beds disappear, fishery productivity also decreases. They 
noted that declines in seagrass beds have been documented worldwide, 
particularly in the Indian River Lagoon, the primary habitat of H. 
johnsonii.
    NMFS Response: NMFS agrees that seagrasses play an important role 
in their ecosystems and provide valuable habitat. The vulnerability of 
seagrasses in general and H. johnsonii in particular, provides the 
impetus for this listing.
     Issue 6: Some commenters said that the species should be listed as 
endangered rather than threatened, and that NMFS underestimated the 
effects of climate change and increasing development and population 
growth in Florida.
    NMFS Response: NMFS believes that only limited information exists 
regarding Johnson's seagrass, reproductive capacity, life history 
characteristics (growth rates, environmental requirements), and the 
effects of human disturbance which would be necessary in determining 
that Johnson's seagrass is in danger of extinction throughout all or a 
significant portion of its range. The protection afforded by listing as 
threatened will result in the subsequent development of a recovery plan 
for H. johnsonii. The recovery plan will address the gaps in our 
knowledge of the biology and ecology of Johnson's seagrass, and such 
knowledge will, in turn, lead to a better understanding of the 
demography and population biology of this species.
    Dr. Bird states that although the evidence points to a valid 
species with a limited distribution, the questions of its degree of 
extinction is more difficult to resolve. Halophila species as a whole 
appear to be patchy with few species developing extensive stands. 
However, he agrees with NMFS' conclusions that human activities in the 
area could impact the species. Existing criteria and standards, as well 
as enforcement measures, are inadequate to protect seagrasses.
     Issue 7: Several commenters expressed concern about whether 
maintenance dredging of existing inlets and channels would be allowed 
to continue if Johnson's seagrass is listed.
    NMFS Response: NMFS is concerned about the possibility of losing 
patches of Johnson's seagrass that may be essential to the genetic 
viability of the species. However, NMFS expects that maintenance 
dredging activities will be authorized with the oversight provided by 
section 7 of the ESA.
    Issue 8: Several commenters were concerned that the listing of 
Johnson's seagrass would prevent or severely curtail expansion or 
development of ports and maintenance of existing ports, channels and 
inlets. In turn, this would adversely affect the economy in their 
communities.
    NMFS Response: The ESA mandates that listing determinations be made 
solely on the basis of the best scientific and commercial data 
available after conducting a review of the status of the species and 
taking into account those conservation efforts being made by any state. 
However, section 7 of the ESA provides a mechanism for actions 
requiring Federal funding permits or participation to be conducted in a 
manner that prevents jeopardy to any species. Therefore, NMFS 
anticipates that most marine related activities can continue when 
measures are taken through the section 7 consultation process with 
Federal agencies to reduce adverse impacts and avoid jeopardizing the 
continued existence of the species.
    Issue 9: Some commenters stated that any threats to the habitat 
could be corrected or were being corrected without the species being 
listed. For example, problems due to prop scarring could be resolved by 
marking navigation channels and establishing speed zones. Several 
counties are installing storm water management systems to improve

[[Page 49039]]

water quality. Maintenance dredging is regulated by the state, and 
spoil is now deposited on beaches to protect shorelines rather than on 
spoil islands.
     NMFS Response: Other embayments in the distributional range of 
Johnson's seagrass have marked navigational channels, but seagrass bed 
scarring still occurs. ``Many of the sea-grass beds in the Indian River 
Lagoon have prop scars resulting from boaters attempting to cross 
shallow waters and running aground'' (Indian River Lagoon Comprehensive 
Conservation and Management Plan, May 1996). Erosion caused by damage 
from boat wakes may also result in turbidity and siltation, which 
adversely affect seagrass.
     Issue 10: One commenter wrote that the updated information 
provided by NMFS reveals that the species is doing well, and shows no 
signs of decrease in health or population. The commenter also wrote 
that its geographic range was, if anything, larger than what was 
reported in 1993.
     NMFS Response: In order to update the original status report 
(Kenworthy, 1993) and to include information from new field and 
laboratory research on species distribution, ecology, use, genetics and 
phylogeny, NMFS convened a workshop on the biology, distribution, and 
abundance of H. johnsonii. The results of this workshop, held in St. 
Petersburg, Florida, in November 1996, have been summarized in the 
workshop proceedings (Kenworthy, 1997) submitted to NMFS on October 15, 
1997. The new information confirmed NMFS' original determination that 
the species should be listed as threatened. This final rule is based on 
updated information.
    Issue 11: Some commenters noted that in the proposed rule, NMFS 
stated that there is no evidence that the overutilization for 
commercial, recreational, scientific or educational purpose contributed 
to the decline of Johnson's seagrass. If this listing factor has not 
contributed to the decline, they questioned what more needs to be done 
to protect the species.
     NMFS Response: This factor refers to the actual use of the species 
itself. For example, if a plant were harvested commercially for food, 
medicines, or other products, this use might have contributed to the 
decline of the organism. Johnson's seagrass habitat may be affected by 
other resource harvesting activities in the ecosystem, but the species 
itself is not used for commercial, recreational, or educational 
activities.
    Issue 12: Several commenters stated that there are adequate Federal 
and State laws to protect all seagrasses which make the additional 
protection afforded by the ESA unnecessary.
    NMFS Response: While it is clear that the intent of Federal and 
Florida state laws is to conserve and protect seagrass habitat, it is 
also clear that there is continued and well-documented loss of seagrass 
habitat in the United States and elsewhere. For example, seagrasses 
have declined in many areas of the Indian River Lagoon (Virnstein and 
Morris, 1996).
    Previous transplantation efforts to mitigate for the loss of 
seagrass beds have failed. Until recently, Halophila species have not 
been transplanted successfully in the field and studies underway are 
incomplete (Kenworthy-personal communication). Many seagrass ecosystems 
are known to recover very slowly even under the most natural, pristine 
conditions. Current efforts are insufficient to protect critical 
seagrasses. This was also the conclusion and recommendation of 
scientists attending the International Seagrass Workshop in Kominato, 
Japan in August 1993.
    NMFS believes that Johnson's seagrass needs the additional 
protection of listing, including consideration of effects of Federal 
actions on the species through the section 7 consultation process of 
the ESA. During consultation with other Federal agencies, NMFS can 
ensure that any federally funded, permitted, or authorized activity 
includes adequate measures to reduce adverse impacts from these 
activities and to prevent jeopardizing the continued existence of the 
species.
     Issue 13: One commenter wrote that NMFS had exceeded the time 
limit for making a final determination after proposing to list 
Johnson's seagrass as threatened in 1993.
     NMFS Response: In 1989, NMFS was notified by the FWS that it had 
received information indicating that H. johnsonii was a rare species 
which may need to be listed under the ESA. By 1993, NMFS had gathered 
enough information to propose listing the species as threatened. In 
1994, NMFS proposed critical habitat for the species. A joint public 
hearing was held on both the proposed listing and proposed critical 
habitat. The proposed critical habitat designation was very 
controversial. Because of the controversy and new NMFS/FWS polices on 
listing, NMFS postponed the final listing decision until information 
used to make the original proposal had been peer reviewed and 
additional information gathered. Peer review of the original 
information and the results of new studies confirmed NMFS' original 
determination that the species should be listed as threatened. The new 
information was reviewed at a technical workshop in November 1996, and 
summarized in a report in October 1997. In addition to gathering new 
information, the final listing was delayed by the year-long 
Congressionally imposed moratorium on listing species in fiscal year 
1996.

Summary of the Factors Affecting the Species

    After a thorough review and consideration of all information 
available, NMFS concludes that H. johnsonii warrants listing as a 
threatened species. Procedures found at section 4(a)(1) of the ESA (16 
U.S.C. 1531 et seq.) and regulations (50 CFR part 424) promulgated to 
implement the listing provisions of the ESA were followed. A species 
may be determined to be endangered or threatened due to one or more of 
the five factors described in section 4(a)(1). These factors and their 
application to H. johnsonii are as follows:
    1. Present or Threatened Destruction, Modification or Curtailment 
of its Habitat or Range.
    Habitat within the limited range in which H. johnsonii exists is at 
risk of destruction by a number of human and natural perturbations 
including (1) dredging; (2) prop scoring; (3) storm surge; (4) altered 
water quality; and (5) siltation. Due to the fragile nature of H. 
johnsonii's shallow root system, the plants are vulnerable to human-
induced disturbances in addition to the major natural disturbances to 
the sediment, and their potential for recovery may be limited. 
Destruction of benthic communities due to boating activities (propeller 
scarring and anchor mooring) was observed at all H. johnsonii sites 
during the NMFS study. Further, this condition is expected to worsen 
with the predicted increase in boating activity. This severely disrupts 
the benthic habitat by breaching root systems and severing rhizomes, 
and significantly reducing the viability of the community.
    Turbidity is a critical factor in the distribution and survival of 
seagrasses, especially in deeper regions of the lagoon, where reduced 
PAR limits photosynthesis. Shallow regions are less affected by 
turbidity unless light is rapidly attenuated. In interior lagoonal 
areas where salinity is low, highly colored water typically is 
discharged via drainage systems. Stained waters attenuate shorter 
wavelengths rapidly, removing important PAR as well as potentially 
stressing plants due to the low salinity. This is a critical factor, 
especially in the vicinity of Sebastian,

[[Page 49040]]

St. Lucie, Jupiter, and Ft. Pierce Inlets, and Lake Worth and North 
Biscayne Bay where freshwater reaches the flood tide delta and nearby 
seagrass meadows via rivers and canal systems that discharge into the 
lagoon.
    Trampling due to human disturbance and increased land-use induced 
siltation can threaten viability of the species. Degradation of water 
quality due to human impact is also a threat to the welfare of seagrass 
communities. Nutrient over-enrichment caused by inorganic and organic 
nitrogen and phosphorous loading via urban and agricultural land run-
off can stimulate increased algal growth that may smother the 
understory of H. johnsonii, shade rooted vegetation, and diminish the 
oxygen content of the water. Such low oxygen conditions have a 
demonstrated severe negative impact on seagrasses and associated 
communities. Continued and increased degradation of environmental 
quality also will have a detrimental effect upon H. johnsonii 
communities.
    2. Overutilization for Commercial, Recreational, Scientific or 
Educational Purposes.
    Overutilization for these purposes has not been a documented factor 
in the decline of this species.
    3. Disease or Predation
    There are two known herbivores that occur in the range of H. 
johnsonii--the green sea turtle (Chelonia mydas), and the West Indian 
manatee (Trichechus manatus), both of which feed upon the seagrass. 
Herbivorous fish also feed upon the seagrass community. Predation 
pressures alone are not likely to be a threat to the species existence.
    4. The Inadequacy of Existing Regulatory Mechanisms.
    Despite existing Federal and Florida state laws to conserve and 
protect seagrass habitat, there is a continued and well-documented loss 
of seagrass habitat in the United States and elsewhere. For example, 
seagrasses have declined in many areas of the Indian River Lagoon 
(Virnstein and Morris, 1996). The Florida Department of Natural 
Resources and the Florida Department of Environmental Regulation have 
recently merged, greatly increasing the assignment of enforcement 
responsibilities without an associated increase in staff for the Marine 
Patrol. Although stormwater management systems are installed or being 
installed, the Florida Indian River Lagoon Act of 1990 does not cover 
other large inputs that will affect water quality, which in turn could 
affect seagrasses (e.g. industrial discharges, brine disposal, canals, 
processing plants).
    Previous transplantation efforts to mitigate for the loss of 
seagrass beds have failed. Until recently, Halophila species have not 
been transplanted successfully in the field and studies underway are 
incomplete (Kenworthy-personal communication). Many seagrass ecosystems 
are known to recover very slowly even under the most natural, pristine 
conditions. Current efforts are insufficient to protect critical 
seagrasses. This was also the conclusion and recommendation of 
scientists attending the International Seagrass Workshop in Kominato, 
Japan in August 1993.
    5. Other Natural or Human-made Factors Affecting Its Continued 
Existence.
    The existence of the species in a very limited range increases the 
potential for extinction from stochastic events. Natural disasters such 
as hurricanes could easily diminish entire populations and a 
significant percentage of the species. Seagrass beds that are in 
proximity to inlets are especially vulnerable to storm surge from 
hurricanes and severe storm events.

Efforts Being Made To Protect Johnson's Seagrass

    Section 4(b)(1) of the ESA requires the Secretary of Commerce 
(Secretary) to make listing determinations solely on the basis of the 
best scientific and commercial data available and after taking into 
account state efforts being made to protect the species. Therefore, in 
making its listing determinations, NMFS assesses the status of the 
species, identifies factors that have led to the decline of the 
species, and assesses available conservation measures to determine 
whether such measures ameliorate risks to the species.
    There is a continued and well-documented loss of seagrass habitat 
notwithstanding existing Federal and state laws to conserve and protect 
this habitat. Previous transplantation efforts to mitigate for the loss 
of seagrass beds have failed. NMFS has determined that these existing 
conservation efforts are not sufficient to prevent a listing 
determination. NMFS will, however, consider state conservation efforts 
when developing protective regulations under section 4(d) of the ESA. 
State conservation efforts may also serve as a basis for a cooperative 
agreement under section 6 of the ESA.

Listing Determination

    Based on available information, NMFS concludes that Johnson's 
seagrass warrants listing as a threatened species. This species is 
rare, has a limited reproductive capacity, and is vulnerable to a 
number of anthropogenic or natural disturbances. Also, it exhibits one 
of the most limited distributions of any seagrass. Within its limited 
range (lagoons on the east coast of Florida from Sebastian Inlet to 
central Biscayne Bay), it is one of the least abundant species. Because 
of its limited reproductive capacity and limited energy storage 
capacity, it is less likely to survive environmental perturbations and 
to be able to repopulate an area when lost. Finally, habitat loss has 
continued despite existing Federal and state conservation efforts.

Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the ESA include recognition, recovery action, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The ESA provides for cooperation with 
states and requires that recovery actions be carried out for all listed 
species. The protection required of Federal agencies and the 
prohibitions against certain activities involving listed plants are 
discussed, in part, here.
    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 below, 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) also prohibits violations of 
protective regulations for threatened species of plants implemented 
under section 4(d). While NMFS proposed extending the section 9 
prohibitions to Johnson's seagrass, it is not including that proposal 
in this final rule. Rather, NMFS will issue protective regulations 
pursuant to section 4(d) for Johnson's seagrass in a separate proposed 
rulemaking.
    Section 7 (a)(4) of the ESA requires Federal agencies to consult 
with NMFS on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. For listed species, 
section 7 (a)(2) requires Federal agencies to ensure that activities 
they

[[Page 49041]]

authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
formal consultation with NMFS.
    Federal agency actions or programs that may affect populations of 
Johnson's seagrass and its habitat include U.S. Army Corps of Engineers 
authorization of projects affecting waters of the U.S. under section 
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act 
(i.e., beach nourishment, dredging, and related activities including 
the construction of docks and marinas); Environmental Protection Agency 
authorization of pollutant discharges and management of freshwater 
discharges into waterways; U.S. Coast Guard regulation of vessel 
traffic; management of national refuges and protected species by the 
FWS; management of vessel traffic and other activities by the U.S. 
Navy; authorization of state coastal zone management plans by NOAA's 
National Ocean Service, and management of commercial fishing and 
protected species by NMFS.
    Listing H. johnsonii as threatened provides for the development of 
a recovery plan for the taxon. The recovery plan would establish a 
framework for State and Federal agencies to coordinate activities and 
to cooperate with each other in conservation efforts. The plan would 
set recovery priorities and describe site-specific management actions 
necessary to achieve the conservation of Johnson's seagrass.

Critical Habitat

    Section 4(b)(6)(C) of the ESA requires that, to the extent prudent, 
critical habitat be designated concurrently with the listing of a 
species unless such critical habitat is not determinable at that time. 
As stated previously, NMFS proposed a designation of critical habitat 
on August 4, 1994 (59 FR 39716). Given the passage of time since that 
proposal, NMFS will address the designation of critical habitat in a 
separate Federal Register notice and additional comments will be 
solicited at that time.

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES).

Classification

    The 1982 Amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that must be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir. 
1981), NMFS has categorically excluded all ESA listing actions from 
environmental assessment requirements of the National Environmental 
Policy Act (NEPA) under NOAA Administrative Order 216-6.
    As noted in the Conference report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
the species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act (RFA) are not applicable to the listing 
process. In addition, this final rule is exempt from review under E.O. 
12866.
    At this time NMFS is not issuing protective regulations under 
section 4(d) of the ESA. In the future, prior to finalizing its 4(d) 
regulations for this species, NMFS will comply with all relevant NEPA 
and RFA requirements.
    This final rule does not contain a collection-of-information 
requirement subject to the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 227

     Endangered and threatened species, Exports, Imports, Marine 
Mammals, Transportation.

    Dated: August 27, 1998.
Hilda Diaz-Soltero,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set forth in the preamble, 50 CFR part 227 is 
amended as follows:

PART 227---THREATENED SPECIES

    1. The authority citation for part 227 reads as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, 227.12 also issued 
under 16 U.S.C., 1361 et seq.

    2. The heading for part 227 is revised to read as set forth above.
    3. Section 227.4 is amended by adding paragraph (p) to read as 
follows:


Sec. 227.4  Enumeration of threatened species.

* * * * *
    (p) Johnson's seagrass (Halophila johnsonii)
[FR Doc. 98-24357 Filed 9-11-98; 8:45 am]
BILLING CODE 3510-22-F