[Federal Register Volume 64, Number 103 (Friday, May 28, 1999)]
[Proposed Rules]
[Pages 28965-28968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13556]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 990520140-9140-01; I.D. 041699A]


Listing Endangered and Threatened Species and Designating 
Critical Habitat: Petition To List Eleven New Species Including One New 
Genus of Bryozoans From Capron Shoal, Florida, as Threatened or 
Endangered Under the Endangered Species Act (ESA)

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

ACTION: Notification of 90-day petition finding.

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SUMMARY: NMFS received on February 11, 1999, a petition to list eleven 
new species (including one new genus, Cymulopora) of bryozoans as 
threatened or endangered under the ESA. The following are the new 
species: Alcyonidium capronae, Membranipora triangularis, Disporella 
plumosa, Cymulopora uniserialis, Cribilaria parva, Reginella 
repangulata, Hippothoa balanophila, Phylactella ais, Trematooecia 
psammophila, Cleidochasma angustum, and Drepanophora torquata, 
hereafter referred to as ``Capron shoal bryozoans.'' NMFS finds that 
the petition does not present substantial scientific or commercial 
information to warrant the petitioned action, per 50 CFR 424.14.

DATES: This petition finding was made on May 18, 1999.

ADDRESSES: Copies of the petition may be obtained from NMFS, Protected 
Resources Division, 9721 Executive Center Drive N., St. Petersburg, FL 
33702; or from NMFS, Office of Protected Resources, 1315 East West 
Highway, Silver Spring, MD 20910. The petition finding and supporting 
data are available for public inspection by appointment during normal 
business hours at the above addresses.

FOR FURTHER INFORMATION CONTACT: Eric Hawk, NMFS, Protected Resources 
Division, (727)570-5312, or Marta Nammack, NMFS, Office of Protected 
Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3) of the ESA contains provisions concerning petitions 
from interested persons requesting the

[[Page 28966]]

Secretary of Commerce (Secretary) to list species under the ESA. 
Section 4(b)(3)(A) requires that, to the maximum extent practicable, 
within 90 days after receiving such a petition, the Secretary make a 
finding whether the petition presents substantial scientific 
orcommercial information indicating that the petitioned action may be 
warranted. Section 424.14(b)(1) of NMFS' ESA implementing regulations 
define ``substantial information'' as the amount of information that 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted (see 50 CFR 424.14). Section 424.14(b)(2) 
of these regulations contains factors the Secretary considers in 
evaluating a petitioned action.
    On February 11, 1999, the Secretary received a petition dated that 
day from Eric R. Glitzenstein and Cara Romanzo, counsels for the St. 
Lucie County Conservation Alliance, St. Lucie Waterfront Council Inc., 
St. Lucie County Audubon Society Inc., Dr. Judith E. Winston, and K. 
Brian Killday, hereafter referred to collectively as ``the 
petitioners,'' to list the Capron Shoal bryozoans as threatened or 
endangered. The U.S. Army Corps of Engineers (Corps) intends to dredge 
the sandy shoal where these bryozoans reside, as a plentiful source of 
sand for eroded beach restoration. The petitioners cite ``significant 
risk to the well-being'' and threat of extinction of these new species 
(discovered between 1983 and 1985) ``not known to exist anywhere other 
than * * * Capron Shoal'' from ``an ill-conceived, imminent project to 
dredge and thereby destroy their only known habitat.'' The petitioners 
also cite the ``potential anti-carcinogenic and other medicinal 
properties'' of the species and genus at issue as additional reasons 
why the bryozoans should be immediately listed under the ESA. However, 
the petitioners do not present substantial information with regard to 
these claims.
    The petitioners sought a Temporary Restraining Order (TRO) against 
the Corps dredging project, alleging that the Corps did not conduct a 
thorough National Environmental Policy Act (NEPA) analysis, and 
alleging that immediate and irreparable harm would result if dredging 
went forward. The Court ruled in favor of the petitioners and issued a 
TRO on March 5, 1999. Subsequently, the Corps and the petitioners 
reached a Settlement Agreement, which committed the Corps to fund 
bryozoan studies of Capron Shoal and nearby shoals ($200,000), dredge 
only in the southern portion of the currently authorized borrow area 
during the first phase of the beach renourishment project, conduct a 
survey of the effect of beach nourishment on the near-shore hardbottom, 
and do additional NEPA analysis before beginning the next phases.
    NMFS has reviewed the petition and information available in NMFS 
files and consulted with one of the petitioners and bryozoan 
researcher, Dr. Judith E. Winston, as well as with its own experts. 
There is a fundamental uncertainty about the taxonomy of many marine 
groups (Knowlton, 1993; Wallace and Willis, 1994; Miller, personal 
communication, 1999). ``The petitioners' scientific paper describing 
these new species (Winston and Hakansson, 1986) discusses the great 
morphological plasticity of many of the bryozoan species they found at 
Capron Shoal. Indeed, these authors describe several of the 
interstitial bryozoans that they found at Capron Shoal as the same 
species that grow as encrusting colonies in other habitats. In the 
absence of any population genetic data, which appears to be absent in 
this case, the discernment of species within this context of 
morphological plasticity is extremely problematic.'' (Miller, personal 
communication, 1999) Thus, although the data presented by the 
petitioners appear to support the conclusion that the species are new 
and to date have been found only on Capron Shoal, without corroborating 
genetics information, even that conclusion is perhaps premature. 
Furthermore, the data presented by the petitioners do not support the 
conclusion that the species are not likely to be found anywhere other 
than in Capron Shoal or even in deeper portions of Capron Shoal. The 
petitioners state that ``the only assertion which rises to the level of 
a scientific certainty is that these bryozoans are not currently known 
to exist anywhere other than the shallower portions of Capron Shoal 
where [Drs. Winston and Hakansson's] research was actually conducted.'' 
In her February 10, 1999 affidavit, Dr. Winston states that ``there is 
no scientific basis for concluding that the newly discovered bryozoans 
exist throughout the entire shoal'' or at other nearby shoals. However, 
she acknowledges that her sampling of subtidal habitats off Fort Pierce 
was ``preliminary.''
    Dr. Winston's statement in her affidavit that whether or not 
bryozoans exist elsewhere on Capron Shoal and at other nearby shoals 
``is an important question that must be answered'' indicates that these 
bryozoans may exist elsewhere or that they may exist throughout Capron 
Shoal. Further, when contacted by NMFS on February 12, 1999, Dr. 
Winston stated that she happened to discover these species while 
sampling the biodiverse Capron Shoal (Nammack, personal communication, 
1999); no bryozoan-specific surveys have ever been conducted in the 
area. At the time, Dr. Winston also denied stating that these bryozoans 
did not occur anywhere else (Nammack, personal communication, 1999).
    NMFS does not dispute the petitioners' assertion that, currently, 
the ``shallow areas of Capron Shoal are the only known habitat for the 
bryozoans at issue.'' However, NMFS is convinced that this is due to 
sampling limitations and incompleteness of the sampling regime. NMFS 
feels that the limited and preliminary nature of the surveys which led 
Drs. Winston and Hakansson to the discovery of these new species of 
bryozoans does not preclude their existence on other portions of Capron 
Shoal or at nearby shoals with similar sand characteristics. NMFS feels 
that, due to the limited and preliminary nature of the sampling, this 
should not be used as a basis to assert that these bryozoans may not 
exist elsewhere and are threatened with extinction.
    Bryozoans are found in many aquatic and marine environments. It is 
likely that many species of bryozoans have never been described because 
they are not very well studied as a group. NMFS believes that the 
petitioners' argument that the Capron Shoal bryozoans are ``unique'' is 
weak and undocumented. NMFS believes that discovery of a new species 
(especially of a poorly studied group of organisms) does not 
automatically mean the species is rare, threatened, or endangered.
    The petitioners raise concerns that the bryozoans, even if they 
exist throughout the entirety of Capron Shoal, might not survive a 
dredging project which involves the removal of sand from even a portion 
of Capron Shoal. The petitioners cite concerns over direct destruction 
of habitat and ``secondary impacts from dredging, in the form of 
increased turbidity and the constant resuspension of fine sediments 
over the medium coarse sand the bryozoans select for.'' The petitioners 
are concerned that dredging would interrupt and possibly stifle 
bryozoan reproduction. The petitioners assert that, because bryozoan 
larvae are non-feeding organisms, they must settle on an appropriate 
grain of sand quickly and metamorphose to form a new colony before they 
die. According to the published literature, bryozoan larvae must 
disperse and settle within hours. ``They spend a very short period of 
time (less than 24 hours) in the plankton.'' (Winston and Hakansson, 
1986) Thus, the larvae do not generally disperse far

[[Page 28967]]

from the parent organism. Dr. Winston asserts that ``Bryozoan larvae, 
therefore, do not cover great distances before settling and it is 
erroneous to suggest that their reproductive mechanisms make it 
extremely likely that they occur elsewhere in the region.'' (Winston, 
1999)
    In asserting the limited distribution of the bryozoans, the 
petitioners did not adequately consider the natural dispersal action of 
winter wave patterns that cause breaking waves and strong currents over 
and on Capron Shoal nor the strong tidal and wind-generated currents 
typical of the area. Significant wave action and 3 to 6-knot currents 
are not uncommon, according to professional mariners familiar with the 
area (Hawk, personal communication, 1999). During spring tides (full 
moon events) at Fort Pierce Inlet, predicted maximum flood and ebb tide 
currents may reach 4 to 5 knots (NOAA, 1993). The nearshore effects of 
the northward flowing Gulf Stream cannot be discounted. The proximity 
of other nearby shoals also can reasonably be expected to provide 
suitable substrate for settling planktonic bryozoan larvae from Capron 
Shoal and serve as a source of planktonic larvae for Capron Shoal. 
Pierce Shoal, St. Lucie Shoal, Indian River Shoal and various unnamed 
shoals are all within 10 nautical miles of Capron Shoal, and several 
are much closer. NMFS believes that the petitioners' argument that the 
larvae may exist nowhere else but in Capron Shoal is inaccurate, 
particularly since adequate larval dispersal mechanisms and nearby 
shoals with similar sand characteristics to Capron Shoal are present 
(Corps, 1998). These shoals would, in all likelihood, provide fertile 
substrate for settling larvae.
    NMFS acknowledges that dredging Capron Shoal will temporarily 
remove a portion of the bryozoan population and some features that make 
this area suitable habitat for bryozoans. However, NMFS biologists are 
confident that new surfaces exposed by dredging, when reshaped by 
natural events such as prevailing currents and wave action, will 
support the recolonization of the site by bryozoan larvae. The source 
for these bryozoan larvae will be undredged portions of Capron Shoal, 
nearby shoals, and the Indian River Lagoon system.
    Further, NMFS does not believe the bryozoan population of Capron 
Shoal is a precariously small population. The average abundance of 
living encrusting (nonlunulitiform) bryozoan species found in Capron 
Shoal samples taken by Winston and Hakansson was 0.75 per cm. Thus, 
one square meter of sediment 1 cm in depth would contain 7,500 living 
colonies. Winston and Hankansson calculated that for the inner 
continental shelf of Florida alone this would yield a population of 
about 1.2 x 1012 colonies, and ``this estimate is 
conservative, as living colonies are known to occur much deeper than 1 
cm into the sediment.'' (Winston and Hakansson, 1986) The researchers 
state that ``In fact, the interstitial refuge may be an important 
factor in maintaining distributions of encrusting species, acting 
almost like the seed bank for populations of plants, by buffering the 
effects of physical and biological perturbations and lowering the 
chances of local extinction.'' (Winston and Hakansson, 1986)
    This documented abundance and intrinsic though unquantifiable 
degree of protection from local extinction offered by the interstitial 
habitat characteristic of these species, coupled with their current-
mediated reproductive dispersal mechanism, supports the strong 
likelihood that the subject bryozoans exist as yet undiscovered on 
other parts of Capron Shoal as well as on other nearby shoals and that 
their existence is not as precarious as the petitioners present. 
Further, NMFS believes that these species are much more abundant than 
the petitioners suspect, and it is very unlikely that the dredging of 
significant portions or even all of Capron Shoal by the Corps would 
jeopardize the existence of these species which are likely to occur on 
other nearby shoals.
    In summary, the strong currents, seasonal high energy environment 
that prevails in and near Fort Pierce Inlet and Capron Shoal, current-
mediated reproductive dispersal mechanism characteristic of these 
species, and proximity of other nearby shoals which provide similar 
depth and sand characteristics to those found on Capron Shoal all 
combine to make it highly probable that healthy populations of the 
bryozoans listed by the petitioners exist elsewhere.
    The Conservation Alliance of St. Lucie County, Inc. (CASLCI) (one 
of the petitioners) affirms that ``Bugula neritina  ... a common 
inhabitant of the Indian River lagoon just a few miles from Capron 
Shoal ... has been found to contain a potent anti-cancer agent, 
Bryostatin 1.'' (CASLCI, 1998) Another of the petitioners, organic 
chemist/marine natural products chemistry researcher K. Brian Killday, 
asserts that ``Bryostatin 1 is currently in Phase II human clinical 
trials for the treatment of lymphoma and leukemia.'' (Killday, 1998) 
Dr. Winston asserts that the Capron Shoal bryozoans for which ESA 
listing and protection are sought ``belong to the same order 
taxonomically as the bryozoan species which is the source of a potent 
anti-cancer agent, Bryostatin 1.'' She also asserts that ``Bryostatin 1 
derives from the bryozoan Bugula species of bryozoan which is also 
present in ... Capron Shoal.'' (Winston, 1999)
    NMFS does not accept the implication or characterization of Bugula 
neritina as closely related to the species in question. NMFS feels that 
the implication of close biological relatedness between Bugula neritina 
and the Capron Shoal bryozoans (i.e., between bryozoans of the same 
Order but different Genus)--with implied potential commonality of 
highly beneficial (but as yet unproven) pharmaceutical properties--is 
questionable. Regardless, the petitioners' appeal to the potential 
pharmaceutical applications of one or all of these bryozoans is 
irrelevant because it does not provide any information indicating that 
the species may be threatened or endangered.
    Therefore, NMFS finds that the petition does not present 
substantial scientific information indicating that listing the Capron 
Shoal bryozoans as threatened or endangered under the ESA may be 
warranted.

References Cited:

    CASLCI. 1998. Letter from Grace Stock, President of Conservation 
Alliance of St. Lucie County, Inc. to U.S. Army Corps of Engineers, 
Jacksonville District, May 29.
    Corps. 1998. U.S. Army Corps of Engineers. General re-evaluation 
report with environmental assessment. Appendix B: Geotechnical 
Investigations. Fort Pierce Shore Protection Project, St. Lucie County, 
FL. September.
    Corps. 1993. U.S. Army Corps of Engineers. (Revised April 1994, May 
1995). Re-evaluation report: section 934 study with environmental 
assessment. Fort Pierce Shore Protection Project, St. Lucie County, FL. 
August.
    Killday, K.B. 1998. Letter to Florida Inland Navigation District 
Commissioners. June 20.
    Knowlton, N. 1993. Sibling species in the sea. Ann. Rev. Ecol. 
Syst. 24:189-216.
    Miller, M. 1999. Personal communication. NMFS Biologist Dr. 
Margaret Miller email to Eric Hawk. March 31.
    Nammack, M. 1999. Personal communication. NMFS Biologist Marta 
Nammack telephone conversation with Dr. Judith Winston. February 12.
    NOAA. 1993. National Oceanic and Atmospheric Administration. Tidal

[[Page 28968]]

Current Tables: Atlantic Coast of North America. Government Printing 
Office.
    Hawk, E.G. 1999. Personal communication. NMFS Biologist Eric Hawk 
with Captain Robert McCabe. February 17.
    Wallace, C.C. and B. L. Willis. 1994. ``Systematics of the coral 
genus Acropora: implications of new biological findings for the species 
concepts'', Ann. Rev. Ecol. Syst. 25:237-62.
    Winston, J.E. 1999. Affidavit. February 10.
    Winston, J.E. and E. Hakansson. 1986. ``The interstitial bryozoan 
fauna from Capron Shoal'', FL. Am. Mus. Novitates 2865:1-50.

Author:

    The primary author of this document is Mr. Eric Hawk, NMFS, St. 
Petersburg, FL (see ADDRESSES).

Authority

    The authority for this action is the ESA (16 U.S.C. 1531 et seq.).

    Dated: May 23, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-13556 Filed 5-25-99; 3:10 pm]
BILLING CODE 3510-22-F