[Federal Register Volume 65, Number 66 (Wednesday, April 5, 2000)]
[Rules and Regulations]
[Pages 17786-17804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8394]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 991116305-0083-02; I.D. No. 110599D][A]
RIN 0648-AL82


Designated Critical Habitat: Critical Habitat 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 designating 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 being designated as 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 Biscayne Bay. NMFS is 
modifying various aspects of the proposed rule, including the removal 
as critical habitat of the Intracoastal Waterway (ICW) channel in the 
designated areas, and enlarging the Lake Wyman site.
    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: This rule is effective May 5, 2000.

FOR FURTHER INFORMATION CONTACT: Layne Bolen, NMFS, Southeast Region, 
850-234-6541 ext 237, or Marta Nammack, NMFS, Office of Protected 
Resources, 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), 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. 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. NMFS reopened the comment period for the proposed listing on 
April 20, 1998 (63 FR 19468). The final rule to list Johnson's seagrass 
as a threatened

[[Page 17787]]

species was published by NMFS on September 14, 1998 (63 FR 49035).
    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. At the 
time of final listing, critical habitat was not determinable because 
new information needed to perform the required analysis was not yet 
available. 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 published a 
re-proposed rule on December 2, 1999 (64 FR 67536), to designate 
critical habitat for Johnson's seagrass. This final rule takes into 
consideration the new information and comments received in response to 
this re-proposed rule.
    The final 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.
    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, 
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)).

Benefits 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 ESA 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, 
in most cases activities that are likely to destroy or adversely modify 
critical habitat would also be likely to jeopardize the species. 
Therefore, in most cases 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 
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

[[Page 17788]]

conservation regulations that restrict private as well as Federal 
activities. No additional conservation regulations are associated with 
this critical habitat designation, however. Any future proposal would 
require a full, separate rulemaking. Other Federal, state and local 
laws or regulations, such as zoning or wetlands protection, may also 
provide special protection for critical habitat areas.

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 designated 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 Benefits 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.
    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
persons and entities subject to U.S. jurisdiction. Section 9 
prohibitions apply automatically to endangered species; however, 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(a)(2) 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.

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 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 stimulate 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 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

[[Page 17789]]

waterways; regulation of vessel traffic by the U.S. Coast Guard (USCG); 
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.
    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 being 
designated as critical habitat.

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 and 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 designated critical habitat areas 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 
designated critical habitat areas 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 critical habitat areas 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 have been designated as critical habitat.
    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

[[Page 17790]]

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 appear to be suitable for 
flowering, and if there are any males present, these would be likely 
habitats for successful reproduction. Locations where there are 
persistent flowering populations have received critical habitat 
designation.
    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. In the alternative, 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. Portions of 
these limits to the species' range have been designated as critical 
habitat for Johnson's seagrass.
    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 have been designated as critical habitat.
    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 ICW, 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. Three locations within 
Lake Worth Lagoon have been designated as critical habitat. The 
critical habitat area 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).
    NMFS is not including in the final designation any areas outside 
the species' currently known geographical range. 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 Biscayne Bay 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 
designated as 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. Long-term surveys of the distribution of Johnson's 
seagrass may allow further refinement of the Biscayne Bay critical 
habitat area in the future. Additional areas that may be considered for 
critical habitat in future rulemaking include locations between Ft. 
Pierce Inlet and St. Lucie Inlet, west of the Jupiter Inlet, near the 
Boynton Beach Inlet and other areas of Lake Worth Lagoon. Also, if a 
male flower of Johnson's seagrass is identified in an area, this area 
should be designated as critical habitat.
    The regulatory description of critical habitat for Johnson's 
seagrass can be found at the end of this Federal Register document.

Summary of Responses

    Two public hearings were held on the proposed action: one in West 
Palm Beach, Florida, on December 16, 1999, and one in Miami, Florida, 
on January 31, 2000. Thirty-seven individuals provided oral testimony 
at the public hearings. Forty-nine comments were submitted in response 
to the proposed rule. Many comments were in support of designating 
critical habitat for Johnson's seagrass. However, the majority of 
comments were concerned about economic impacts from the designation. 
New information and comments received in response to the proposed rule 
are summarized here.

1. Economic Considerations

    Many commenters believed that critical habitat designation would 
create a substantial economic burden that could delay projects and 
possibly prohibit certain activities, including recreational boating. 
The COE commented that critical habitat would place an unnecessary 
significance to these areas and an additional coordination and 
consultation burden that would be costly both in terms of the project 
delay and the cost directly associated with the consultation. 
Additional commenters believed that the designation would impose 
additional requirements or economic impacts upon small and/or private 
entities beyond those which may accrue from section 7 of the ESA.
    Response: The designation of critical habitat highlights 
geographical areas of concern and reinforces the substantive protection 
resulting from the listing itself. Incremental costs are expected to be 
no greater than those which occurred at the time of listing (See 
Consideration of Economic and Other Factors).
    ESA section 7 applies only to Federal actions and 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 result in the destruction or adverse modification of habitat 
determined to be critical. The consultation requirements of section 7 
are non-discretionary and are effective at the time of species' 
listing. Therefore, Federal agencies must consult with NMFS to ensure 
their actions do not jeopardize a listed species, regardless of whether 
critical habitat is designated.
    Most of the effect on non-Federal interests will result from the 
no-jeopardy requirement of section 7 of the ESA, which is a function of 
listing a species, not designating its critical habitat. Whether or not 
critical habitat is designated, non-Federal interests must conduct 
their actions in a manner consistent with the requirements of the ESA. 
If the activity is funded, permitted, or authorized by a Federal 
agency, that agency must comply with the non-jeopardy mandate of 
section 7 of the ESA, which results from listing a

[[Page 17791]]

species, not from designating its critical habitat. Once critical 
habitat is designated, the agency must avoid actions that destroy or 
adversely modify that critical habitat. However, pursuant to NMFS' ESA 
implementing regulations, in most cases any action that destroys or 
adversely modifies critical habitat is also likely to jeopardize the 
continued existence of the species (See the definitions in 50 CFR 
402.02). Therefore, NMFS does not anticipate that the designation will 
result in significant additional requirements for non-Federal 
interests.
    Notwithstanding its lack of economic impact, the designation of 
critical habitat remains important because it identifies habitat that 
is essential for the continued existence of a species and, therefore, 
indicates habitat that may require special management attention. This 
facilitates and enhances Federal agencies' ability to comply with 
section 7 of the ESA by ensuring that they are aware when their 
activities may affect listed species and habitats essential to support 
them. In addition to aiding Federal agencies in determining when 
consultations are required pursuant to section 7(a)(2) of the ESA, 
critical habitat can aid an agency in fulfilling its broader obligation 
under section 7(a)(1) to use its authority to carry out programs for 
the conservation of listed species.
    On September 1, 1998, NMFS completed a conference opinion (CO) with 
the U.S. Army Corps of Engineers (COE) on maintenance dredging which 
concluded that normal maintenance dredging activities and routine 
operations on ports are not likely to jeopardize the continued 
existence of Johnson's seagrass or adversely modify proposed critical 
habitat. If requested by the COE, NMFS will review the CO, and, if no 
significant changes have occurred in the action as planned or in the 
information used during the conference, NMFS will confirm the CO as the 
biological opinion on the project and no further section 7 consultation 
will be necessary. NMFS expects that maintenance dredging will not be 
negatively impacted by this final critical habitat designation.

2. Permitting Delays

    Various commenters voiced concern that dredging projects, including 
maintenance dredging, would be impaired and possibly prohibited in 
these areas. Concerns were that the designation would: (a) disrupt the 
COE permitting process and result in major permitting delays from the 
section 7 consultation process; (b) impair Palm Beach Harbor expansion 
projects and Lake Worth Lagoon clean-up efforts; (c) prevent or slow 
down and make more costly, a dredging project to remove contaminated 
sediments of the Miami River; (d) essentially stop the maintenance 
dredging of inlets, the ICW, and many private marina facilities; and 
(e) further delay and possibly impede FDOT bridge construction and 
other projects due to the section 7 process.
    Response: NMFS expects that normal maintenance dredging activities 
and routine operations on ports will not be negatively impacted by this 
critical habitat designation. The COE has already conferred with NMFS 
on the proposed designation for maintenance dredging. Furthermore, 
there are fewer delays in permitting because the Federal agency knows 
in the planning process where designated critical habitat areas are for 
the species (See Benefits of Designating Critical Habitat). The 
critical habitat areas account for approximately 7 percent of the 
entire range of the species, and the designation assists Federal 
agencies (or those delegated to represent Federal lead agencies) in 
planning future actions because the designation establishes, in 
advance, those habitats that will be given special consideration in ESA 
section 7 consultations. Individual permits issued by the COE are being 
dealt with through the ESA section 7 process and in review by the COE's 
Nationwide Permit process. These projects will be examined 
programmatically by waterbody and/or project type.
    As noted earlier, excluding an area from critical habitat does not 
exclude it from consultation under ESA section 7, based on expected 
impacts to the species. The species has been listed since September 
1998, and Federal agencies have been required to confer on impacts to 
this species since it was proposed for listing in 1994. The designation 
would not impair or prohibit the timely and economical maintenance of 
the ICW or other federally-funded projects. The requirement for a 
Federal action agency to consult on actions which may affect a listed 
species occurs at the time the species is listed.

3. Stop or Prohibit Projects/Activities

    Many commenters believed that the outcome of critical habitat 
designation and the intention of NMFS is to stop or prohibit projects 
or activities. One commenter believed that NMFS seeks to ``kill the 
public's recreational use of Biscayne Bay.''
    Response: The designation of critical habitat does not, in and of 
itself, restrict human activities within an area or mandate any 
specific management or recovery action. The designation of critical 
habitat helps alert public and private entities to the area's 
importance, and under section 7 provisions, a critical habitat 
designation requires Federal agencies to ensure that any action they 
authorize, fund, or carry out is not likely to adversely modify or 
destroy critical habitat. The designation assists agencies in planning 
future actions. It is not the intention of NMFS to prohibit boating or 
other activities in the range of Johnson's seagrass.
    The designation of critical habitat allows for early consultation 
and development of project alternatives. The Section ``Need For Special 
Management Considerations'' provides an overview of recognized impacts 
or threats to the species and its primary constituent elements (such as 
water quality and substrate stability) that may require special 
management considerations. 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.

4. Intracoastal Waterway and Maintenance Dredging

    This is a subset of the concerns raised earlier. A number of 
commenters felt that the inclusion of the channel of the ICW was 
unnecessary for the conservation of the species and an economic burden 
to maintenance dredging of the waterway and that it would impair and 
probably prohibit the proper maintenance of the ICW. Similar comments 
were that the proposed designation would potentially decrease or 
possibly eliminate maintenance dredging of the ICW in Martin County, 
substantially impacting public safety and Martin County's economy, and 
that loss of ICW maintenance dredging may include total prohibition of 
boating activity within the critical habitat limits.
    Response: After re-evaluation of the information, feedback from 
Recovery Team members with expertise in the distribution, abundance and 
habitat needs for the species, and public input, NMFS has determined 
that the (approximately 18.5 km) Federally marked navigation channel of 
the ICW occurring in the critical habitat areas will be excluded from 
critical habitat designation. NMFS has determined that the exclusion of 
the channel of the ICW is possible while still allowing for 
conservation of the species. The exclusion of the ICW channel occurs in

[[Page 17792]]

the following critical habitat areas: (1) An interior portion of the 
Indian River Lagoon, north of the St. Lucie Inlet; (2) Hobe Sound; (3) 
the site in central Lake Worth Lagoon near Bingham Island; (4) a site 
in Lake Worth Lagoon, Boynton Beach; (5) a site in Lake Wyman, Boca 
Raton; and (6) a portion of Biscayne Bay Aquatic Preserve.
    As stated earlier, the COE requested formal conference with NMFS 
when the species was proposed for listing in order to address and plan 
for the maintenance dredging projects. The NMFS' CO, issued September 
1, 1998, concluded that the maintenance dredging of the ICW and ports 
in the range of Johnson's seagrass is not likely to jeopardize the 
continued existence of the species, and is not likely to destroy or 
adversely modify its proposed critical habitat. Johnson's seagrass is 
known to occur in parts of the ICW, but the exclusion of the ICW 
channel in the designated area will not affect NMFS' ability to review 
and prohibit adverse impacts to the species. The CO contains pre-
dredging survey guidelines which provide that the number and severity 
of impacts to the species be tracked over time in conjunction with 
other impacts affecting the species in its range. New dredging or 
expansion projects will be reviewed separately under section 7.

5. Exclusion of Other Project Types or Areas

    Some commenters requested exclusion of other project types or areas 
besides that of the ICW channel, including: (a) the ICW right-of-way in 
addition to the channel; (b) all Florida Department of Transportation 
right-of-way and Submerged Land Easements which encompass existing 
bridges; (c) current docks, canals, and areas requiring dredging and 
boat use; (d) public boat ramps and existing basins; (e) any access 
channels and public and private maintenance of existing channels and 
piers and docking facilities; (f) public navigation channels; (g) areas 
adjacent to the Town of Jupiter; (h) Sealine Marina Yachting Center 
basin; (i) clean-up dredging of the Miami River. One commenter 
recommended exclusion of: (1) a 500-ft. (152.4 m) buffer adjacent to 
all privately-owned uplands, (2) the ICW and its adjacent right-of-way, 
(3) all areas within the preempted area of State submerged land leases, 
easements, consents of use or other State proprietary authorizations, 
(4) all marina facilities in existence at the time of listing, and (5) 
all existing access channels.
    Response: The ICW channel has been excluded from critical habitat 
since it involves ongoing maintenance of a disturbed area. The CO 
developed for these ICW and ports maintenance projects analyzed the 
impacts of these activities on Johnson's seagrass. The CO did not 
consider new ICW dredging or expansion projects involving deepening or 
widening of the right-of-way. Because of the additional adverse impacts 
these projects will have on the species and habitat, above those 
considered in the CO, these projects will be considered separately in 
the ESA section 7 process. With regard to other areas, the critical 
habitat designation may be revised in the future as data become 
available. Critical habitat designation should have no effect on 
currently existing structures such as docks, marinas, and basins in 
designated critical habitat unless Federal authorization is required. 
NMFS would review, at that time, any proposed changes to those 
structures or facilities. In Biscayne Bay, the Miami River, the Little 
River, and the Oleta River are excluded from Johnson's seagrass 
critical habitat beyond its mouth. Any proposed dredging projects of 
this river that are authorized, funded, or carried out by a Federal 
agency may be reviewed under the section 7 process for impacts to 
listed species under NMFS purview.

6. Submerged Land Lease Holding

    One commenter, representing a private party holding the lease to 
submerged lands included in critical habitat designation, questioned 
how this party would be compensated for loss of this land.
    Response: The land designated as critical habitat is not a taking 
of private property. A critical habitat designation does not impose any 
additional burdens on private property rights than those imposed by the 
species listing. A private landowner continues to be free to use his 
land as he sees fit, using care that his land management does not 
violate any ESA 4(d) regulations. The critical habitat designation 
simply clarifies the areas within which one's activity may impact 
Johnson's seagrass. The designation may affect such property if there 
is a Federal action that triggers the section 7 process.

7. Biscayne Bay Comments

    There were numerous comments on the size of Biscayne Bay compared 
to the other areas proposed for designation in the north and central 
part of its range. Some commenters supported the designation. Comments 
opposed to the size of the designation included: (a) the area should 
not be so big because it is highly industrialized, with heavy commerce 
and recreational boating and development; (b) the area is too large as 
most of it is already dredged and seawalled; (c) the size of the area 
is not scientifically supported and is overreaching; and (d) the 
designation will stall and frustrate the orderly expansion of 
facilities to support recreation in the Bay. Those in support of the 
designation believed it to be beneficial to the species where the risk 
of development is great. One commenter suggested a more focused 
approach in Biscayne Bay Aquatic Preserve.
    Response: NMFS believes that this designation, based upon criteria 
for Johnson's seagrass critical habitat, is currently appropriate and 
necessary for the survival of Johnson's seagrass in its southern range. 
Based on comments received, this critical habitat area was re-evaluated 
by NMFS and by members of the Recovery Team.
    The species, by nature, is patchily distributed. Johnson's seagrass 
occurs in approximately a 2-percent abundance in comparison to all 
species of seagrass throughout its range. In Biscayne Bay, a highly-
impacted system, Johnson's seagrass is not known to occur in the same 
abundance or to be as widely distributed as in areas of its northern 
and middle range. Larger seagrasses, predominantly Thalassia, begin to 
out-compete Johnson's seagrass in this area. Eiseman and McMillan 
(1980) documented Johnson's seagrass in the vicinity of Virginia Key, 
Key Biscayne (Lat 25 deg.45'); this location is considered to be the 
southern limit of the species range. There have been no reports of this 
species further south of the currently known southern distribution.
    The presence of Johnson's seagrass in northern Biscayne Bay (north 
of Virginia Key) is well documented. In addition to localized surveys, 
the presence of Johnson's seagrass has been documented by various field 
experiences and observations of the area by Federal, state and county 
entities. Johnson's seagrass has been documented in various COE and 
USCG permit applications reviewed by NMFS. The Dade County Department 
of Environmental Resources has mapped a general seagrass coverage of 
Biscayne Bay, and a wide-range, long-term monitoring program for 
Johnson's seagrass is recommended.
    Development, man-made impacts, and human use of the submerged lands 
in this waterbody are heavy and there is a management need to protect 
critical habitat for Johnson's seagrass based on this pressure. 
Protection of the northern and southern ranges of the species is 
identified as a criteria essential to the protection of Johnson's 
seagrass. Genetic diversity in its southern range may be

[[Page 17793]]

greater than in the north or central parts of the range and unique from 
either the north or central range. 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 State of Florida designated Biscayne Bay as an aquatic 
preserve, recognizing it as ``an exceptional area of submerged bay 
lands and natural waterways tidally connected to the bay'' (Florida 
Administrative Code 18-18). Concurrently, the section of Biscayne Bay 
Aquatic Preserve designated as critical habitat for Johnson's seagrass 
is considered by NMFS to be essential to the survival of the species. 
Final critical habitat designation may be revised as new data become 
available. New information, possibly through a long-term, wide-range 
monitoring program and increased ground-truthing of seagrass species in 
the Bay, could identify the distribution, abundance, and persistence of 
Johnson's seagrass. This new information could allow NMFS, in the 
future, to further refine areas in the southern end of the species' 
range. The species may not occur in 100 percent of the area. However, 
protection of Johnson's seagrass throughout this area is considered by 
NMFS to be essential to the conservation and survival of the species.

8. Additional Areas Recommended For Critical Habitat Designation

    Various parties recommended the increase in the size and/or the 
addition of sites in the north and central parts of the range. 
Commenters believed that the modest acreage proposed, representing only 
about 7 percent of the species' range, does not fully represent the 
area occupied by the respective beds over time. The following areas 
were recommended for expansion: (a) Sebastian Inlet, (b) Fort Pierce 
Inlet, (c) Jupiter Inlet, (d) Jupiter Sound, (e) Lake Worth/Bingham 
Island, and (f) Lake Wyman.
    The following new areas were recommended to be added as new 
critical habitat: (a) The entire area of Indian River Lagoon, from Ft. 
Pierce Inlet to St. Lucie Inlet; (b) Herman's Bay, St. Lucie County; 
(c) three sites in the Loxahatchee River/Estuary; (d) a site south of 
Lake Worth Inlet and Peanut Island; (e) a site at Royal Park Bridge, 
Palm Beach County; (f) two sites south of Boynton Inlet; and (g) 
site(s) in Broward County. A few commenters believed that the 10-year 
persistence criterion eliminates significant populations from critical 
habitat consideration, and that it is too strict. They recommended 
reduction in the time frame to 3 years to identify a persistent 
population of Johnson's seagrass.
    Response: Five criteria for designating Johnson's seagrass critical 
habitat were developed by the members of the recovery team (See 
Critical Habitat for Johnson's seagrass). The size of the areas in the 
north and central part of the species range were based on the criteria 
for persistent and flowering populations and indicate the shoals of 
persistent beds. These areas have been studied for 10 years and have 
shown the ability to persist where other areas in the general vicinity 
have not. Johnson's seagrass is patchily distributed, has rapid growth 
and turnover, and migrates across the sea floor. Recruitment from 
fragmentation and migration are random processes which do not guarantee 
the persistence of the species in any one location. The areas 
designated in Indian River Lagoon, Hobe Sound, Jupiter Inlet, and Lake 
Worth Lagoon indicate populations that have persisted and flowered for 
10 years despite these species characteristics. Environmental 
characteristics of these sites appear favorable to the species, while 
in other locations in the lagoon, populations have disappeared. Based 
upon the Recovery Team recommendations, NMFS believes that 10-year 
persistence is a valid criterion for designating critical habitat for 
Johnson's seagrass. Refinement of these areas was possible due to the 
information from permanent transects, genetic information, State of 
Florida marina siting and dock shading studies, and Palm Beach County 
Lake Worth Lagoon surveys.
    The Lake Wyman site is a critical area for the existing genetic 
variability of Johnson's seagrass found in the central part of its 
range. With a re-examination and further interpretation from Florida 
Fish and Wildlife Conservation Commission's (FFWCC) marina survey and 
dock shading data, NMFS concurs that the proposed designation of 3.3 
acres excluded the contiguous and dense beds of Johnson's seagrass 
southward. As a result, NMFS has expanded the southern boundary of this 
area approximately 1500 ft. (457.2 m) in order to more adequately 
protect this genetic variability in the central range, particularly 
from stochastic events.
    Some of the recommendations to add new areas were based on reducing 
the criterion for persistence from 10 years to 3 years. However, NMFS 
believes, based on Recovery Team recommendations, that the 10-year time 
period most accurately identifies persistent areas of Johnson's 
seagrass. The Loxahatchee Estuary, just west of the Jupiter Inlet, 
holds a large monotypic population of Johnson's seagrass. However, 
historical survey data on the persistence of Johnson's seagrass in this 
area do not currently exist. Future data on the ability of Johnson's 
seagrass to persist in this euryhaline (wide range of salinity) 
environment, with its extreme changes in salinity, may indicate this to 
be a unique site for Johnson's seagrass. NMFS may, therefore, consider 
this site as critical habitat in future rulemaking based on its unique 
environmental characteristics.
    Comments were made that there should be more than two areas 
proposed for critical habitat designation in Lake Worth Lagoon, which 
is an essential area of abundance for Halophila species. Further 
analysis from FFWCC, and a re-evaluation of the data provided by Palm 
Beach County and State of Florida marina siting surveys and dock 
studies, support the addition of a critical habitat site in Lake Worth 
Lagoon, south of Lake Worth Inlet and Peanut Island. The population of 
Johnson's seagrass in this area is well-documented as an abundant, 
persistent (at least 10 years) and flowering population of mixed 
Halophila and monotypic Johnson's seagrass. Any additions or revisions 
that may be made in the future to this final rule will go through 
another proposed and final rule process with public input.

9. Protection of All Seagrasses/ecosystem

    Many individuals expressed support for the designation and voiced 
the need to protect all seagrasses, emphasizing the ecological benefits 
(such as a nursery/spawning ground) of seagrass conservation, not only 
for a single species, but for the ecosystem. Many commenters expressed 
concerns about massive releases of freshwater by the COE from Lake 
Okechobee and threats to the entire system from development.
    Response: NMFS supports efforts and plans to conserve and manage 
ecosystems and appreciates the role that the ESA can take in protecting 
those species most threatened or endangered in these systems. NMFS' 
authority is under the ESA in protecting listed species, and NMFS 
believes that the ESA section 7 consultation process benefits the 
protection of other seagrasses and the diversity of the shallow 
estuarine ecosystem. NMFS appreciates the opportunity to participate in 
the Lake Worth Lagoon project, Indian River Lagoon Management Plan, 
Biscayne Bay initiative and the South Florida Ecosystem Restoration 
Plan.

[[Page 17794]]

10. Lack of Scientific Information

    A few commenters suggested that critical habitat was not 
determinable and should not be designated at this time. Reasons given 
included: (a) a lack of information on how the species propagates; (b) 
the need for further study on habitat preferences; and (c) a lack of 
essential information determining the physical and biological features 
that are essential to the conservation of a given species.
    Response: These factors were considered in the decision to list the 
species. Essential information does exist for Johnson's seagrass, as 
provided at the time of listing. The range of the species has been 
delineated and there is a clear understanding of how the species grows 
and propagates (Kenworthy, 1999, 1997). Since its listing, further 
information in terms of genetic variability, patch dynamics, 
persistence and abundance, and transplanting capabilities has been 
found for Johnson's seagrass. Further studies will be valuable in 
answering questions about the species' patch and population dynamics, 
dispersion, and transplanting capabilities. However, NMFS believes that 
sufficient and conclusive information exists at this time for the 
designation of critical habitat for Johnson's seagrass.

11. Critical Habitat is Only to be Designated Where Species Physically 
Occurs

    Some commenters interpreted the ESA definition of ``critical 
habitat'' (section 3 (5)(i); ``The specific areas within the geographic 
area occupied by the species'') as meaning that critical habitat can 
only be designated where the species physically occurs.
    Response: A species does not have to occupy 100 percent of a 
critical habitat area. This would be similar to drawing a ``box'' 
around a plant or animal but not providing it with its requirements for 
space, population growth, normal behavior, food, or other 
physiological, nutritional, and reproductive requirements (See 
Definition of Critical Habitat). NMFS must focus on the primary 
constituent elements within the designated areas that are essential to 
the conservation of the species and that may require special management 
considerations or protection, and not only the space taken up by the 
species. This final rule designates ``critical habitat'', as defined by 
the ESA, for Johnson's seagrass.

12. Existing Regulations

    Some commenters questioned the current regulations for the 
protection of seagrass habitat and whether these were not enough to 
assure the protection of Johnson's seagrass.
    Response: This concern was also covered at the time the species was 
listed. Despite existing Federal and Florida State laws aimed to 
conserve and protect seagrass habitat, there is a continued and well 
documented loss of seagrass habitat in the United States. NMFS 
acknowledges that many portions of the proposed critical habitat for 
Johnson's seagrass overlap with other special areas, such as the Indian 
River Lagoon and Biscayne Bay Aquatic Preserves. The critical habitat 
designation will underscore and strengthen the protective goals of 
these areas.

Changes to the Proposed Rule

    Based on comments and new information received on the proposed 
rule, NMFS is modifying the proposed critical habitat designation for 
Johnson's seagrass as follows:
    (1) Exclusion of Federal navigation channels of the ICW that occur 
in critical habitat areas. This includes the following areas: (a) An 
interior portion of the Indian River Lagoon, north of the St. Lucie 
Inlet; (b) Hobe Sound; (c) the site in central Lake Worth Lagoon near 
Bingham Island; (d) a site in Lake Worth Lagoon, Boynton Beach; (e) a 
site in Lake Wyman, Boca Raton; and the portion of Biscayne Bay 
designated as critical habitat.
    (2) Extension of Lake Wyman critical habitat area by 1500 ft. 
(457.2 m) south from the proposed area.
    (3) Exclusion of the Miami River and Little River beyond their 
mouths at Biscayne Bay.
    Maps are provided for reference purposes to guide Federal agencies 
and other interested parties in locating the general boundaries of the 
critical habitat. They do not constitute the definition of the 
boundaries of critical habitat. Persons must refer to the regulations 
at 50 CFR 226.213 for the actual boundaries of the designated critical 
habitat. Figures 1 through 9 illustrate the ten areas being designated 
as critical habitat for Johnson's seagrass. These maps do not 
illustrate the exclusion of the ICW channel.

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 is designating ten 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 to 
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 critical habitat designation 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 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 final 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

[[Page 17795]]

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 final rule. In addition, NMFS has completed a 
conference opinion with the COE on the effects of maintenance dredging 
on Johnson's seagrass and its critical habitat. NMFS expects that 
maintenance dredging will not be negatively impacted by this final 
critical habitat designation.

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: March 30, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set forth in the preamble, 50 CFR part 226 is 
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 226.213 is added to part 226 to read as follows:


Sec. 226.213  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 by the following coordinates and excluding the 
Federally-marked navigation channel of the Intracoastal Waterway (ICW):

    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 and excluding the federally-marked navigation channel 
of the ICW.
    (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 and excluding the Federally-marked 
navigation channel of the ICW:

    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 ICW, defined by the 
following coordinates and excluding the Federally-marked navigation 
channel of the ICW:

    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 and excluding the Federally-marked 
navigation channel of the ICW:

    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.22'05.00"N, 80 deg.04'16.00"W
    Southeast corner: 26 deg.22'05.00"N, 80 deg.04'18.00"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 Oleta River, Miami River and Little River beyond 
their mouths, the federally-marked navigation channel of the ICW, and 
all existing federally authorized navigation channels, basins, and 
berths at the Port of Miami to the currently documented southernmost 
range of Johnson's seagrass, Central Key Biscayne (25 deg.45'N).

BILLING CODE 3510-22-F

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[FR Doc. 00-8394 Filed 4-4-00; 8:45 am]
BILLING CODE 3510-22-C