[Federal Register Volume 66, Number 50 (Wednesday, March 14, 2001)]
[Notices]
[Pages 14924-14932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-6040]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Notice of Availability of Interim Strategy on Section 7 
Consultations Under the Endangered Species Act for Watercraft Access 
Projects in Florida That May Indirectly Affect the West Indian Manatee

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of document availability and public comment period.

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SUMMARY: We, the Fish and Wildlife Service, announce the availability 
of an interim strategy to comply with the provisions of the Endangered 
Species Act of 1973, as amended (ESA), on actions resulting in 
increased watercraft access in Florida. This document reflects the 
Service's findings on the conditions under which the Service could 
determine that a proposed watercraft access facility is unlikely to 
have adverse indirect effects on manatees as well as the measures that 
an individual seeking permission to build a watercraft access facility 
could take to reduce indirect effects on

[[Page 14925]]

manatees to an unlikely to occur level. These conditions and measures 
were developed using the best scientific and commercial data available. 
Section 7 consultation also requires that the Service make 
determinations on the effect of a Federal action based on the ``best 
scientific and commercial data available.'' Thus, during the time this 
guidance is available for public comment, the Service will continue to 
fulfill its section 7 consultation responsibilities based on the 
principles stated in this guidance. These principles may change as 
information is received through the public comment process, if new or 
more detailed information is brought to the attention of the Service.
    This interim strategy represents the Service's guidance to all 
persons, including individuals, local governments, State agencies, and 
Federal agencies regarding voluntary conservation measures that could 
be incorporated into watercraft access facility designs such that, in 
some cases projects would not likely cause incidental take of the West 
Indian manatee (Trichechus manatus). Watercraft access facilities 
including slips, ramps, launches, dry storage facilities, docks, 
moorings, marina developments, and similar structures will be evaluated 
on a case-by-case basis to determine whether, in any particular 
situation, the proposed project is likely to adversely affect manatees 
or, rather, whether specific conditions in the project area as well as 
measures incorporated into the project's design are such that the 
Service can reasonably conclude that the project is not likely to 
adversely affect manatees. We have called this strategy an ``interim'' 
strategy because it is designed to provide guidance relating to the 
indirect effects of watercraft access development on manatees only 
during the time period while incidental take regulations under the 
Marine Mammal Protection Act (MMPA) are being promulgated.
    Using this guidance, the individuals, local governments, State 
agencies, and Federal agencies may develop acceptable manatee 
conservation measures which are then reviewed by the Service for 
compliance with the provisions of the ESA. The Service believes that, 
during this interim period, some watercraft access projects can be 
designed so that there is no increased likelihood of manatee 
mortalities and injuries as a result of collisions with watercraft.
    This guidance document does not authorize incidental take of 
manatees. Incidental take of manatees without authorization is unlawful 
and such authorization cannot occur until the Service issues 
appropriate regulations under the MMPA. In addition, this guidance 
document does not describe all procedures and standards that will be 
followed during formal and informal consultation. All determinations 
made during informal and formal consultation will be made in accordance 
with the ESA, and the Service's March 1998 Endangered Species 
Consultation Handbook.
    It is also important to stress that this guidance document does not 
address all of the ways in which a watercraft access project could have 
indirect effects which constitute an incidental take of manatees as 
defined by the ESA and MMPA. Instead, this guidance document focuses on 
one particular form of potential incidental take, i.e., the increased 
likelihood of manatee mortalities and injuries as a result of 
collisions with watercraft. In determining whether to concur with a not 
likely to adversely affect determination, or in issuing a biological 
opinion addressing the potential for incidental take, the Service must 
consider all potential forms of incidental take, including whether the 
direct or indirect effects of the project would be likely to ``harass'' 
or ``harm'' manatees as defined by the ESA and its implementing 
regulations.

DATES: We must receive your comments regarding this strategic guidance 
on or before May 14, 2001.

ADDRESSES: Submit written comments to the Field Supervisor, South 
Florida Ecological Services Office, U.S. Fish and Wildlife Service, 
1339 20th Street, Vero Beach, Florida 32961-2676 or via electronic mail 
to [email protected]. Comments and materials received in response to 
this proposal will be available for public inspection at this address 
during normal working hours from 8 a.m. to 4:30 p.m., Monday through 
Friday.

FOR FURTHER INFORMATION CONTACT: Marilyn Stoll, South Florida 
Ecological Services Office, P.O. Box 2676, Vero Beach, Florida 32961-
2676, Telephone: (561) 562-3909 extension 229, Facsimile: (561) 562-
4288, or Electronic Mail: [email protected].

SUPPLEMENTARY INFORMATION:

Purpose

    This document reflects the Service's findings on the conditions 
under which the Service could conclude that a proposed watercraft 
access facility is unlikely to cause a ``take'' of manatees, as defined 
in the Endangered Species Act Sec. 3(18) and 50 CFR 17.3, as well as 
the measures that an individual seeking permission to build a 
watercraft access facility could incorporate into the design of a 
project in order to reduce the likelihood of incidental take to a level 
of not likely to occur. These conditions and measures were developed 
using the best scientific and commercial data available. Because 
section 7 consultation also requires the Service to make determinations 
on the effect of a Federal action based on the best scientific and 
commercial data available, the Service will use the guidelines 
described in this document to fulfill its section 7 consultation 
responsibilities during the time this guidance is available for public 
comment. These guidelines may change as information is received through 
the public comment process, if new or more detailed information is 
brought to the attention of the Service.

Background

    The West Indian manatee (Trichechus manatus) was first provided 
Federal protection in 1967 through its listing as an endangered species 
under the Endangered Species Preservation Act of 1966. The manatee 
continued to be listed as an endangered species under the Endangered 
Species Conservation Act of 1969 and the Endangered Species Act of 
1973, as amended (ESA). Additional Federal protection was provided 
through the Marine Mammal Protection Act (MMPA) of 1972.
    Watercraft-related manatee mortality and increasing mortality 
trends have been documented since collection of manatee mortality data 
began in 1974. The addition of new watercraft into Florida's waters has 
the potential to adversely affect manatees. The Service is presently 
preparing MMPA regulations regarding the circumstances under which the 
incidental take of manatees associated with watercraft access 
facilities may be authorized. The principle purpose of this guidance 
document is to provide assistance in determining appropriate measures 
for eliminating any project-related adverse effects from watercraft 
collisions to manatees, and to guide the Service in evaluating requests 
for letters of concurrence, requests for initiation of consultation, 
and during formal consultation to identify measures which eliminate the 
risk of incidental take of manatees. More specifically, one purpose of 
this guidance document is to set forth the conditions under which the 
Service could make a determination that incidental take, as a result of 
watercraft collisions, is unlikely to occur so that particular project 
could proceed prior to the issuance of MMPA rules. Watercraft access 
facilities are defined as marinas, ramps, launches, slips, docks, dry

[[Page 14926]]

storage facilities, moorings, and similar structures.
    Under section 7 of the ESA and its implementing regulations, if a 
Federal action agency determines that a project is not likely to 
adversely affect a listed species, the action agency must obtain the 
Service's written concurrence regarding that determination [see 50 CFR 
402.14(b)]. If a Federal action agency makes an initial determination 
that a proposed project is likely to adversely affect manatees, the 
action agency must request the Service to initiate formal consultation 
unless the Service and the action agency subsequently agree during 
informal consultation that the project is not likely to have any 
adverse effects on manatees. Once formal consultation is initiated, 
except as provided for in 50 CFR 402.14(l), the Service must render a 
biological opinion on whether the Federal action is likely to 
jeopardize any listed species or is likely to adversely modify 
designated critical habitat. In addition, the Service must anticipate 
any incidental take that may occur as a result of the action. If the 
Service does not anticipate that the action will result in incidental 
take, then the Service must make a clear statement to that effect in 
the biological opinion. If the Service does anticipate that incidental 
take may occur as a result of the action, it must determine whether 
that incidental take is likely to jeopardize the continued existence of 
the species. If not, then the Service must exempt such incidental take, 
provided the incidental take is otherwise lawful. Because all marine 
mammals are also protected by the MMPA, the Service cannot exempt 
incidental take for manatees under ESA, unless incidental take 
regulations are promulgated under MMPA. For the Service to promulgate 
incidental take regulations under the MMPA, an entity must request that 
the Service prepare incidental take regulations under the MMPA. For 
such projects which the Service determines will not result in jeopardy 
or adverse modification of critical habitat, yet in the Service's 
opinion is likely to result in the incidental take of manatees, the 
Service intends to exercise its authority under the ESA to issue 
biological opinions that make clear that the project may contribute to 
incidental take of manatees, and incidental take may not be exempted in 
the absence of MMPA incidental take regulations.
    Direct effects of watercraft access facilities on manatees and 
essential features of manatee habitat (such as seagrasses), including 
those arising from the location, design, and construction of 
facilities, and dredging and filling, will be addressed at the time of 
the Service's review of the permit application and are not the focus of 
this interim strategy. In analyzing such effects, including those on 
seagrasses and other important features of manatee habitat, we will 
analyze the extent to which such effects are addressed by local Manatee 
Protection Plans, State review, and other protective conservation 
measures, such as standard construction precautions to protect manatees 
during construction. Standard construction conditions have been used 
throughout the range of the manatee for more than a decade and have 
proven to reduce the effects to manatees within the facility footprint.
    This interim strategy is not designed as a means to allow projects 
to circumvent formal consultation under section 7 of the ESA, which is 
required whenever a project is likely to adversely affect a federally-
listed species or its critical habitat. We recognize that, in some 
cases, the incorporation of conservation measures into project designs 
will not reduce the potential for indirect effects to an unlikely to 
occur level. For example, conservation measures as described in this 
document may not be enough to reduce incidental take of manatees to an 
unlikely to occur level in a case where a new watercraft access project 
is proposed in an area that supports large concentrations of manatees 
which is already experiencing high watercraft-related manatee injury 
and mortality. However, we believe that in some cases, because of 
conditions in a particular area and because of conservation measures 
incorporated into a project's design, the Service will be able to 
determine that incidental take is not likely to occur.
    The Service believes that increased manatee speed zone enforcement 
is the primary conservation measure through which proposed projects 
could reduce the incidental take associated with watercraft collisions 
to an unlikely to occur level. We believe that in some areas additional 
law enforcement can be increased to a level which would ensure that an 
increase in watercraft traffic from a proposed facility will not likely 
result in incidental take of manatees due to watercraft collisions. 
Additionally, this increase in law enforcement would provide added 
benefits to the manatees by ensuring that those watercraft already on 
the water would also obey the speed zones currently in place. In some 
situations and locations, other conservation measures besides increased 
law enforcement may possibly be employed to address the indirect 
effects of watercraft access projects on manatees. Such other methods 
could include designating manatee speed zones, improving the signage of 
existing speed zones, providing law enforcement equipment, or other 
measures committed to in an agreement or plan that the Federal action 
agency and the Service believe reduces the potential for incidental 
take from increased watercraft traffic to an unlikely to occur level. 
In order for the Service to determine that any such measure is 
sufficient to reduce the likelihood of incidental take associated with 
the project, the Service must first find that: (1) Adequate speed zones 
exist in the areas reasonably anticipated to have increased watercraft 
traffic as a result of the project; (2) signage in these areas is 
adequate to ensure that boaters are aware of the speed zones; (3) speed 
zone enforcement in these areas is, or with project conservation 
measures will be, sufficient to prevent watercraft collisions from 
occurring as a result of the project; and (4) these measures must be in 
place prior to project implementation.
    We believe that the conditions and conservation measures addressed 
in this interim strategy are essential to ensuring that new watercraft 
access projects do not result in additional watercraft-related 
mortality or injury to manatees. However, they are only part of the 
total recovery needs of the manatee. Numerous conservation activities 
are ongoing to recover the manatee, such as implementation of the 
recovery plan and any subsequent modifications, development of 
incidental take regulations under the MMPA, review of federally-
designated manatee sanctuaries and refuges, adjustment of speed zone 
locations, assessment of deregulation of power plants as warm water 
refugia, and assessment of the effectiveness of law enforcement and 
public awareness efforts in decreasing or eliminating watercraft-
related manatee mortality.
    None of these activities alone can address the multiple actions 
necessary to recover the species. This interim strategy is a very 
important component of the overall recovery effort, but is designed to 
be in place only during the time prior to implementation of 
comprehensive incidental take regulations promulgated under the MMPA. 
Recovery of the manatee in Florida depends on numerous factors. We 
recognize that many of these factors (e.g., red tide events) are 
difficult, if not impossible, to control. Other factors related to 
recovery will take many partners and years to address. Watercraft 
mortality is the most significant factor that we can effectively 
address at this time to aid in manatee recovery.

[[Page 14927]]

    Recent research indicates that improving adult survival is the most 
effective way to ensure the long-term survival of the manatee. Since 
the Florida Fish and Wildlife Conservation Commission (formerly the 
Florida Department of Environmental Protection) began a carcass 
recovery program in 1974, about one-third of the documented manatee 
mortality has been human-related, and watercraft-related mortalities 
account for about 80 percent of this total. In Florida in 1999, there 
were 268 documented manatee deaths of which 82 were watercraft-related, 
the highest number of watercraft-related mortalities recorded for a 
single year. In addition, a high proportion of the existing manatee 
population is scarred from one or more collisions with watercraft.

Speed Zone Enforcement and Boater Compliance

    With more than 830,000 vessels registered by the State of Florida 
and an estimated 400,000 out-of-state vessels, more than one million 
watercraft use Florida's waterways annually, and the popularity of 
watercraft recreation continues to grow. While every new watercraft 
access facility may not directly equate to a watercraft added to the 
water, cumulatively, the addition of watercraft access points results 
in increased watercraft use and, in some cases, changes in watercraft 
travel patterns and modification of manatee behavior.
    Watercraft speed zones were established in some coastal Florida 
counties with high manatee-watercraft collision rates to slow 
watercraft to reduce collisions. When manatees detect the presence of 
an oncoming watercraft, they dive and/or swim rapidly to try to get out 
of its path. Their ability to effectively elude the oncoming watercraft 
is largely determined by the speed of the approaching watercraft. Given 
ample time, manatees are able to avoid lethal or injurious encounters 
with watercraft. Therefore, slow-moving watercraft are less of a threat 
to manatees.
    To date, several compliance studies have been conducted to measure 
the extent to which boaters comply with manatee protection zones 
(Gorzelany 1996, Gorzelany 1998, Kinnaird 1983, Morris 1994, Tyson 
1999). These studies were conducted in Brevard, Lee, and Sarasota 
counties and demonstrated compliance rates ranging from 50.9 percent to 
78.65 percent within the study areas. Three of the studies concluded 
that the presence of law enforcement officers on the water during the 
sampling period increased levels of compliance. The fourth researcher 
concluded that low levels of enforcement, few citations issued, and 
poor signage were responsible for poor compliance (Morris 1994). 
Gorzelany (1996) demonstrated that areas with a frequent enforcement 
presence had the highest level of boater compliance. Tyson (1999) 
concluded that compliance was best when law enforcement officers were 
on the water and that consistent law enforcement presence will result 
in consistent compliance.
    In many areas, watercraft operator compliance with speed zones is 
currently inadequate to prevent manatee injuries and deaths. Compliance 
may be inadequate due to insufficient signs in the speed zone or 
insufficient enforcement of the speed within the zone. In other areas, 
speed zones have not yet been established. From 1997 through 1999, 
Service law enforcement operations resulted in more than 1,348 
watercraft speed zone citations over 18 weekends, demonstrating the 
need for increased speed zone awareness and compliance. With regard to 
some projects, we believe that increased enforcement in the area likely 
to be affected by watercraft associated with the project should reduce 
to an unlikely to occur level any potential manatee incidental take 
that would result from speed zone violations by boaters using that 
facility. We also believe that, in some areas, means other than 
increasing law enforcement hours on the water may be sufficient to 
reduce to an unlikely to occur level any potential incidental take of 
manatees due to collisions with watercraft. For example, when speed 
zones are adopted and are adequately enforced, other factors such as 
the lack of specific equipment, training, etc., may impede law 
enforcement efforts and efficiency to the extent that there is still a 
high potential for manatee incidental take resulting from the increased 
watercraft traffic associated with the project.

Interim Strategy

    This interim strategy applies to any new watercraft access activity 
that could result in adverse effects on manatees. Specific manatee 
conservation measures proposed as part of a project must be found to 
reduce to an unlikely to occur level any adverse effects associated 
with increased access. Specific conservation measures proposed for any 
project must be based on a biological evaluation submitted by the 
applicant or the action agency. This biological evaluation must include 
a description of the proposed action; a description of manatee habitat 
and any manatee critical habitat affected by the proposed action; a 
thorough analysis of the effects of the proposed action on manatees, 
manatee habitat, and manatee critical habitat. From this biological 
evaluation, individuals, local governments, State agencies, and Federal 
agencies can develop acceptable manatee conservation measures(s). Once 
the measures have been developed, the Service can review and provide 
additional advice as necessary to ensure that the proposed project will 
reduce the potential for watercraft collisions to an unlikely to occur 
level. The action agency will provide a copy of these guidelines to the 
applicant for use in designing their proposed action to comply with the 
provisions of the ESA. The action agency will provide a letter to the 
Service with a complete project description, including any conservation 
measures, and request that the Service review the proposed action for 
compliance with the ESA. The specific conservation measures necessary 
in any given situation will vary.
    Because necessary conservation measures will vary according to 
mortality risk in the area of the proposed project, the Service 
delineated relative risk areas throughout Florida. We assessed regional 
manatee populations, manatee ecology, and historic watercraft-related 
manatee mortality to determine relative risk of watercraft-related 
manatee losses, and identified eight risk regions. We examined manatee 
mortality data from 1974 through 2000, including five-year mortality 
increments and watercraft-related mortality trends, to determine high, 
medium and low risk areas (Table 1).
    We defined high risk areas as those averaging one or more 
watercraft-related manatee mortalities per year during the past ten 
years; medium risk areas averaged less than one, but more than zero, 
watercraft-related manatee mortality per year; and low risk (the 
remainder of the manatee's range in the southeastern U.S.) had no 
documented watercraft-related mortality.
    The Service believes that watercraft access developments in high 
risk areas should incorporate measures for increased enforcement of 
watercraft speed zones designated for manatee protection. Generally, 
the increased enforcement should be in the form of providing for 
increased hours of enforcement officer presence on the water. For 
example, an applicant could provide for enforcement hours if there are 
adequate speed zones with the appropriate signage. In some limited 
cases, where the Service finds, based on the best scientific and 
commercial data available, that factors other than hours

[[Page 14928]]

on the water limit the effectiveness of enforcement agencies, alternate 
means of increasing enforcement might be acceptable as conservation 
measures. Such alternatives might include providing to a law 
enforcement entity equipment that is needed to increase manatee law 
enforcement efforts (e.g., watercraft, signs), or providing to law 
enforcement officials training which includes manatee biology, 
management, laws, regulations, techniques, and problem solving. As an 
example, an applicant could, in cooperation with the appropriate 
entities, identify the locations of manatee speed zones and have them 
posted with the appropriate signage, if the level of law enforcement is 
adequate. Applicants have the option to provide these conservation 
measures through an agreement with a law enforcement entity or through 
contributions to a conservation fund. In some cases in high risk areas, 
an applicant may choose to also include an education or outreach 
component as a conservation measure, in addition to increased 
enforcement, but education will not be sufficient to replace 
enforcement as a conservation measure.

                                             Table 1.--High, Medium, and Low Risk Areas by County in Florida
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         High risk area (contribution = 1.65 hours)           Medium risk area (contribution = 0.165 hour)    Low risk area (no contribution required)
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           Subpopulation                     County              Subpopulation              County              Subpopulation              County
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Atlantic...........................  Duval *                 Upper St. Johns......  St. Johns *             Atlantic.............  Monroe **
                                     Clay *                                         Putnam                                         Okeechobee
                                     St. Johns *                                    Lake                    Southwest............  DeSoto
                                     Volusia *                                      Seminole                Northwest............  Jefferson
                                     Brevard                                        Volusia *                                      Franklin
                                     Indian River            Atlantic.............  Nassau                                         Gulf
                                     Martin                                         Clay *                                         Bay
                                     Palm Beach                                     Flagler                                        Walton
                                     Broward                                        St. Lucie                                      Okaloosa
                                     Miami-Dade              Southwest............  Glades                                         Santa Rosa
                                     Monroe **                                      Hendry                                         Escambia
Southwest..........................  Collier                                        Pinellas
                                     Lee                     Northwest............  Pasco
                                     Charlotte                                      Hernando
                                     Sarasota                                       Levy
                                     Manatee                                        Dixie
                                     Hillsborough                                   Taylor
Northwest..........................  Citrus                                         Wakulla
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 * In Northeast Florida, the portions of the St. Johns River north (downstream) of a line drawn across the river at the Shands Bridge (State Route 16)
  in St. Johns County are included with the high risk area of Duval County. The J. Turner Butler (Sollee) Bridge (State Route 202) across the Atlantic
  Intracoastal Waterway in southeast Duval County is the demarcation between the high risk area to the north of the bridge and the medium risk area to
  the south. The Nassau River and its tributaries in Duval County are medium risk areas. The coastal waterways of Volusia County (including the Tomoka
  River) are in the high risk category, and the St. Johns River in Volusia, Lake and Seminole Counties are in the medium risk category.
** The area in Monroe County to the east and north of the Seven Mile Bridge is considered a high risk region for manatees; whereas the area west and
  south of the Seven Mile Bridge is considered a low risk region for manatees.

    In some medium risk counties, manatee mortality trends have been 
increasing and the Service believes that increasing enforcement hours 
on the water will be the most appropriate conservation measure. In 
other medium risk counties where mortality is low and is not 
increasing, law enforcement may be increased and/or alternate 
conservation measures may be used as deemed appropriate, based on the 
best scientific and commercial data available, to reduce incidental 
take to an unlikely to occur level.
    For all projects in high and medium risk counties, the Service will 
evaluate the specific conditions in the area expected to be affected by 
the project as well as the conservation measures incorporated into the 
project's design, in determining whether the project is likely to 
contribute to incidental take due to watercraft collisions. The basic 
prerequisites to determining that incidental take from watercraft 
collisions is unlikely to occur as a result of any particular project 
are that: (1) Adequate speed zones exist in the areas reasonably 
anticipated to have increased watercraft traffic as a result of the 
project; (2) signage in these areas is adequate to ensure that boaters 
are aware of the speed zones; (3) speed zone enforcement in these areas 
is, or with project conservation measures will be, sufficient to 
prevent watercraft collisions from occurring as a result of the 
project; and (4) these measures must be in place or will be in place 
prior to project implementation. If, for whatever reason, any of these 
conditions are not, or cannot be, satisfied in a particular area, then 
the Service cannot conclude that a project is not likely to adversely 
affect manatees. The Service will advise the Federal agency and 
applicants as to the conservation measures which the Service deems 
appropriate based on the relative risks of manatee mortalities and 
injuries in the particular area where the project is located.
    With respect to single family docks as an interim measure only, the 
Service, based on the best scientific and commercial data available, 
may find that a financial contribution from any applicant to an 
organization or entity that participates in and/or funds manatee 
conservation actions is consistent with the principles in these 
guidelines. In unusual situations--such as where the Federal agency 
advises the Service that many project applications for single family 
docks are pending in an area of particular importance to manatees, or 
in an area that is already experiencing very high mortality--the 
Service may conclude that a financial contribution is not sufficient to 
render a watercraft access facility for these types of permit 
applications unlikely to contribute to the incidental take of manatees.

Implementation of Conservation Measures

    In order to effectively address adverse effects to manatees, the 
Service believes that conservation measures should be built into the 
project description and be implemented within the area which the

[[Page 14929]]

Service believes, based on the best scientific and commercial data 
available, is likely to be affected by the proposed watercraft access 
project. Currently, the Service has not identified a specific distance 
from the project as the area likely to be affected. This is because 
site-specific circumstances, such as watercraft traffic patterns and 
manatee travel patterns will dictate the affected area from watercraft 
in each case. Incorporation of conservation measures into a project 
design can be accomplished by having a signed agreement with an entity 
that has the authority to provide law enforcement, providing funds for 
law enforcement to an entity that has manatee conservation as a goal, 
or identifying and implementing an activity that would accomplish the 
goal of this guidance, i.e., ensuring that the conditions in an area 
are such that the project does not contribute to the incidental take of 
manatees through watercraft collisions. In any of these cases, the 
action agency and/or applicants may develop site-specific enforcement 
plans, including entering into enforcement agreements, facilitating 
enforcement events, or contracting that activity through a conservation 
fund entity. Agents involved in enforcement actions must be authorized 
to enforce all local, State, and Federal laws, including speed zone 
restrictions, necessary for the protection of manatees.
    For commercial watercraft access projects and multi-family 
facilities, contributions should be made and on-the-water enforcement 
ensured prior to new watercraft being added to the aquatic environment. 
These enforcement activities will be directed at the appropriate 
location to ensure that the impacts of the project are not likely to 
adversely affect the manatee by increasing the risk of mortalities and 
injuries through watercraft collisions. Generally, these types of 
complex projects require more time to resolve resource conflicts and to 
finalize construction than simpler projects such as single family 
docks. Permit applicants for commercial and multi-family watercraft 
access projects may also have access to expertise to complete 
individual agreements with law enforcement entities. Therefore, 
enforcement efforts around larger facilities may be more readily 
accomplished and monitored prior to the time construction is finalized 
and new watercraft are added to manatee habitat.
    If a project is implemented in a manner that is not consistent with 
the project as consulted on, because conservation measures are not 
adopted and implemented as proposed, the action agency will reinitiate 
consultation, in accordance with the Service's Consultation Handbook, 
to ascertain whether additional conservation measures should be 
incorporated into the project. Furthermore, failure to implement a 
project as reviewed and approved by the action agency and the Service, 
to avoid any incidental take resulting from the project, may subject 
the permittee to liability pursuant to the underlying statutes. Based 
on conversations with the Corps, it is the Service's understanding that 
the Corps will suspend or revoke permits where applicants have 
implemented projects in a manner that is inconsistent with the project 
as consulted on with the Service.

Establishing an Agreement Directly With a Law Enforcement Entity

    If an applicant elects to establish an agreement or contract 
directly with an entity that can provide law enforcement, the agreement 
or contract must be completed before the Service makes a final 
determination on the proposed project. The entity that provides the law 
enforcement personnel must be able to provide personnel certified to 
enforce all local, State, and Federal laws, including speed zone 
restrictions, necessary for the protection of manatees. Specific 
details included in the agreement or contract must be based on a 
biological evaluation which includes a description of the proposed 
action, manatee habitat, and manatee critical habitat affected by the 
proposed action; a thorough analysis of effects of the proposed action 
on manatees, manatee habitat, and manatee critical habitat; and a 
detailed and thorough description of the proposed manatee conservation 
measure(s). The agreement or contract must describe how the funding/in-
kind resources will be utilized by the law enforcement entity (e.g., 
how much the funding/in-kind resources will increase the hours of 
Marine Patrol Unit operation, the amount of fuel and maintenance of 
Marine Patrol Units to be supplied, the amount and type of equipment to 
be supplied) and describe and justify the specific geographic area 
within which the increased law enforcement will be applied. The 
agreement or contract must be completed before the Service makes a 
final determination on the proposed project to ensure that incidental 
take of the manatee is unlikely to occur after project implementation.
    Such an agreement or contract must also specify applicant reporting 
requirements to the Federal action agency and/or the Service. Specific 
reporting details must be included in the agreement or contract. Such 
details must include, but are not limited to: the number of officers 
provided, the number of officer hours spent on the water enforcing 
manatee speed zones, the number of on-the-water public contacts (e.g., 
citations, warnings) made by law enforcement staff, the number of hours 
and type of training that officers received on law enforcement related 
to manatees, the types of equipments and material purchased, the amount 
of funds expended for material and equipment, the amount of 
administrative overhead required to implement this agreement/contract, 
the number of manatees observed by enforcement officers inside and 
outside of designated speed zones, the number of near misses of 
manatee-watercraft collisions observed, and the ten-year annual average 
number of watercraft-related manatee mortalities within one-half mile 
of the boundaries of the area patrolled by the increased law 
enforcement prior to and after implementation of increased law 
enforcement.

Providing Funds for Enforcement and/or Education to a Conservation 
Entity

    Permit applicants for single family watercraft access projects 
generally do not have the knowledge or resources to complete individual 
agreements with law enforcement entities. In addition, the amount of 
funds contributed for one access point or even several small projects 
together is not conducive to implementing an effective enforcement 
program. The primary purpose of establishing a manatee conservation 
fund with a conservation organization is to provide single family 
applicants for watercraft access projects an efficient and effective 
means to reduce the impacts of their watercraft access facility on 
manatees.
    While the resources to track an individual single family 
contribution to a specific law enforcement effort may exceed the cost 
of on-the-water enforcement, pooling such contributions will be more 
effective. The aggregation of many small contributions into one fund 
provides the ability to implement viable and effective enforcement 
programs in the area of impacts from single family watercraft access 
projects that could not be accomplished individually. However, 
application of the increased enforcement prior to completion of a given 
single family watercraft access project may not be assured in every 
case. The overall goal of the placement of these enforcement activities 
made possible by the pooled funds is to direct the activities in 
appropriate locations that ensure that

[[Page 14930]]

the impacts of the projects are not likely to cause incidental take of 
manatees. Additionally, concentrated law enforcement events (e.g., 
weekend task forces) may provide one means to target areas with high 
rates of permit applications for single family watercraft access 
projects to ensure on-the-water enforcement is focused, to the maximum 
extent practicable, prior to the addition of watercraft to manatee 
habitat.
    In order to contribute funds to a conservation organization, permit 
applicants for watercraft access projects other than single family 
applicants must meet the following prerequisites ensuring that 
incidental take from watercraft collisions is unlikely to occur as a 
result of their particular project: (1) Adequate speed zones exist in 
the areas reasonably anticipated to have increased watercraft traffic 
as a result of the project; (2) signage in these areas is adequate to 
ensure that boaters are aware of the speed zones; (3) speed zone 
enforcement in these areas is, or with project conservation measures 
will be, sufficient to prevent watercraft collisions from occurring as 
a result of the project; and (4) these measures must be in place or 
will be in place prior to project implementation. Again, if for 
whatever reason any of these conditions are not or cannot be satisfied 
in a particular area, then the Service cannot conclude that a project 
is not likely to adversely affect manatees.
    The Service is working with the State, counties, local governments 
and conservation organizations to establish programs for use by permit 
applicants.
    If an applicant elects to provide a conservation contribution as a 
conservation measure, the applicant must include in the proposed 
contribution any additional fees required to administratively manage 
the funds by the entity. The contribution of funds must be transferred 
to the conservation entity prior to the Service's final determination 
on the proposed project. The agreement/contract between the entity that 
receives the funds from the applicant and the entity to which the funds 
are transferred for enforcement purposes must include information 
explaining how the funding will be used (e.g., how much the funding 
will increase the hours of enforcement on the water, or how much fuel 
or maintenance of watercraft will be supplied by the funding, or the 
amount and type of equipment to be supplied) and describe the area 
within which the funds will be used. The agreement/contract must also 
include the reporting requirements identified in the previous section.
    Again, based on the best scientific and commercial data available 
and as an interim measure only, the Service may find that a financial 
contribution from any applicant to an organization or entity that 
participates in and/or funds manatee conservation actions is consistent 
with the principles in these guidelines.

Implementation of Conservation Measures Where Inadequate Speed Zones 
Exist or Are Being Inadequately Enforced

    Of the 14 Florida counties totally within high risk manatee areas, 
four counties currently have either no speed zones or only site-
specific speed zones. Additionally, the Service considers many of the 
existing speed zones in portions of these 14 counties to be 
insufficient or inadequately enforced for the Service to concur with a 
determination that the project will not adversely affect manatees by 
contributing to incidental take through watercraft collisions. Within 
these counties, where speed zones are currently lacking or inadequate, 
it must be shown that appropriate speed zones are in place in the areas 
anticipated to be affected by the project, speed zone signage is 
adequate throughout these areas, and that adequate levels of speed zone 
enforcement will occur throughout these areas before the Service can 
determine that a proposed watercraft access facility is unlikely to 
cause incidental take of manatees.
    These types of determinations will need to be made on a case-by-
case basis based on the specific circumstances and conservation needs 
present in the area. If it is determined that the existing speed zones 
are not adequate to reduce incidental take to an unlikely to occur 
level or that the speed zones will not be adequately enforced even with 
conservation measures incorporated into the project design, the Service 
would not be able to conclude that the project is not likely to 
contribute to the incidental take of manatees through watercraft 
collisions.
    Of the 15 counties with medium risk areas only, nine have county-
wide (Nassau and St. Lucie) or site-specific (Flagler, Hernando, Lake, 
Levy, Pinellas, Putnam, and Seminole) speed zones. The remaining six 
medium risk counties (Dixie, Glades, Hendry, Pasco, Taylor, and 
Wakulla) have no enforceable speed zones. As with high risk counties, 
the Service will make case-by-case determinations as to whether a 
project is likely to contribute to the incidental take of manatees 
through watercraft collisions, in light of manatee mortality history 
and trends in the area, as well as any conservation measures 
incorporated into the project's design. In those areas where speed 
reduction is necessary yet no speed zones currently exist and/or speed 
zones will not be sufficiently enforced to render watercraft collisions 
in the affected area unlikely to occur (despite any conservation 
measures incorporated into the project's design), we believe that we 
would not be able to concur with a determination that the project is 
not likely to result in the incidental take of manatees through 
watercraft collisions.
    Since projects in low risk counties have no history of any 
watercraft-related manatee mortality, the Service will likely find that 
proposed projects in these areas are unlikely to contribute to the 
incidental take of manatees through watercraft collisions. As with any 
proposed project in manatee habitat, however, the Service will assess, 
on a case-by-case basis, whether any project is likely to result in 
incidental take through watercraft collisions or have any adverse 
effects on the species.

Determining the Amount of Increased Law Enforcement Hours Necessary

    As stressed previously, in order to conclude that any project in 
high or medium risk counties will not contribute to incidental take of 
manatees through watercraft collisions, the Service must assess whether 
adequate speed zones in the affected areas exist and whether these 
speed zones are being, or will be (prior to project impacts), 
sufficiently enforced so that the project is unlikely to contribute to 
the incidental take of manatees through watercraft collisions. In 
making these determinations, the Service will rely on the best 
scientific and commercial data available (including, for example, 
manatee mortality data for a particular area, information regarding 
boater compliance with speed zones in the area, the anticipated 
beneficial effect of any conservation measures incorporated into a 
project's design, including the degree to which those measures are 
anticipated to increase speed zone enforcement in the area, etc.).
    While recognizing the necessity for site-specific, case-by-case 
determinations, we are interested in reviewing alternative methods for 
assessing the adequacy of speed zone enforcement in manatee habitat, 
i.e., how the Service should analyze whether speed zone enforcement in 
a particular area is, or will be (in light of any conservation measures 
incorporated into a project) sufficient to ensure that the incidental 
take of manatees through

[[Page 14931]]

watercraft collisions do not occur as a result of new watercraft access 
projects in an area. Accordingly, we invite comments regarding such 
methods as well as any other features of this guidance document.
    Application of this guidance will result in increased speed zone 
enforcement. These enforcement efforts will be directed to the areas 
where new access facilities are developed to assure that potential 
incidental take associated with the new watercraft access facility is 
unlikely to occur and thus incidental take exemption is not needed. 
This increased enforcement will emphasize laws and regulations that 
relate to manatee incidental take, whereas current enforcement 
activities are comprised of a broad suite of enforcement duties (e.g., 
fishing violations, no wake zone violations, safety violations) only 
some of which affect the incidental take of manatees. In addition to 
ensuring that the likelihood of incidental take related to new 
watercraft access is reduced to an unlikely to occur level, added 
enforcement in these areas will also serve to decrease the likelihood 
of incidental take from pre-existing watercraft activity.
    We believe that law enforcement will control watercraft operator 
behavior to reduce effects to an unlikely to occur level until such 
time as the long-term strategy is finalized for manatee conservation. 
Proposing the guidance within this document as an interim strategy, the 
Service believes that up to ten years may be required to finalize this 
long-term conservation strategy. Therefore, we have established this 
ten-year guidance document as operating procedures until such time that 
the long-term conservation strategy for manatee conservation is 
implemented, such as the development of incidental take regulations 
under MMPA or the establishment of federally-designated manatee 
sanctuaries and refuges or the implementation of a statewide boater 
registration fee to support increased law enforcement. We conducted the 
following analysis to determine the level of increased law enforcement 
necessary in high and medium risk areas to ensure that watercraft 
access projects will effectively decrease to an unlikely to occur level 
the likelihood of incidental take associated with that project.
    We calculated a recommended level of increased enforcement per 
watercraft access point in high-risk counties. Currently, Florida has a 
statewide average of one Florida Marine Patrol enforcement officer per 
1,356 registered watercraft. The total number of work hours in a year 
given a 40-hour work week is 2,080. Dividing this total number of work 
hours by 1,356 registered watercraft yields a current average of 1.5 
hours of enforcement per registered watercraft per year. Because trends 
in watercraft-related manatee mortality continue to rise statewide, we 
believe that a conservation law enforcement level that exceeds this 
current average per registered watercraft, that is strategically 
applied to increase enforcement of manatee laws and regulations, and 
that extends over a ten-year period, is necessary to ensure that 
incidental take, due to additional watercraft gaining access through 
the project, will be unlikely to occur. The annual change in 
watercraft-related manatee mortality between 1990-1999 averaged more 
than nine percent. Therefore, in order for the project to not likely 
adversely affect and not likely cause the incidental take of manatees, 
we find that additional enforcement must be provided at a level of the 
current statewide average plus ten percent (1.65 hours) per watercraft 
provided access per year for ten years. For applicants establishing an 
agreement directly with a law enforcement entity, the agreement must 
indicate the total number of enforcement hours (number of watercraft 
access points x 1.65 hours) for the ten-year period necessary to ensure 
that incidental take is unlikely to occur.
    For single family applicants contributing funds to a conservation 
entity, the contribution amount must be sufficient to provide 1.65 
hours of enforcement per year for the ten-year period necessary to 
ensure that incidental take is unlikely to occur. Again, based on the 
best scientific and commercial data available and as an interim measure 
only, the Service may find that a financial contribution from any 
applicant to an organization or entity that participates in and/or 
funds manatee conservation actions is consistent with the principles in 
these guidelines.
    The current ratio of one law enforcement officer per 1,356 
registered watercraft is a statewide average and not a site-specific 
ratio. Applying this ten percent increase in law enforcement above the 
current statewide average will result in an enforcement increase by a 
ratio of one officer per 1,261 watercraft, a 110 percent increase over 
the current level of State law enforcement, within the area likely to 
be affected by the watercraft access facility, assuming that State law 
enforcement levels remain the same. At this time, the Service does not 
have any information to indicate that such law enforcement level will 
increase or decrease.
    Nonetheless, as stressed previously, in order to conclude that any 
project in high or medium risk counties will not contribute to 
incidental take of manatees through watercraft collisions, the Service 
must assess whether adequate speed zones in the affected areas exist 
and whether these speed zones are being, or will be (prior to project 
impacts), sufficiently enforced so that the project is unlikely to 
contribute to the incidental take of manatees through watercraft 
collisions.
    We are considering alternate methods of determining the appropriate 
level of increased law enforcement necessary per watercraft access. One 
such method would involve calculating a relative risk ratio for 
discrete geographic areas such as counties. Such a ratio might be 
calculated based on the number of manatees that summer or winter in the 
area, the number of registered watercraft in the area, and the average 
annual mortality in the area. By calculating such a risk ratio, we 
could determine the law enforcement level to be recommended in current 
high mortality areas relative to law the enforcement levels in areas 
where mortality is currently low. We currently do not have manatee 
abundance data for each county that would allow us to calculate such a 
risk ratio. We also are unaware of data that would allow us to account 
for the effect of watercraft registered in other states and brought 
into Florida waters. We invite your comments on the use of the current 
statewide average enforcement ratio plus ten percent, and on the 
potential use of relative risk areas in determining the appropriate 
level of increased enforcement necessary per watercraft access. We also 
invite suggestions on any other equitable method of determining an 
appropriate law enforcement level.
    Based upon comments received, we may choose to modify the guidance 
on the appropriate level of increased enforcement necessary per 
watercraft access. Nonetheless, this document reflects the level of law 
enforcement the Service currently finds to be adequate based on the 
best scientific and commercial data available to reduce incidental take 
of manatees to the point that it is unlikely to occur with respect to 
new watercraft access facilities. We will continue to monitor manatee 
mortality in these high risk areas to ascertain if the recommended law 
enforcement level of 1.65 hours of enforcement per watercraft access 
per year is sufficient or necessary to ensure that incidental take is 
unlikely to occur as a result of the increased access from

[[Page 14932]]

that facility. We will amend this guidance in the future if this level 
of law enforcement improves or is insufficient. Factors that may 
influence the law enforcement level may include: Watercraft-related 
mortality numbers and trends; manatee population trends; law 
enforcement events, amount and extent of speed zones; and designation 
of sanctuaries. The Service will ensure that any change to the 
recommended law enforcement level is based on the most current 
scientific information available.
    If the proposed conservation measure in a high mortality risk 
county involves providing equipment or training to law enforcement 
officers, the amount of equipment or training to be provided must be 
equal in conservation value to 1.65 hours of enforcement per watercraft 
that is provided access per year over a ten-year period.
    Medium risk areas, based on manatee mortality data, experience 
approximately ten percent of the total manatee mortality that is 
measured in high risk areas. Given the reduced degree of risk 
associated with medium risk areas, ten percent of the high risk area 
law enforcement effort is needed to reduce indirect effects to the 
point that the facility is unlikely to cause incidental take of 
manatees or adversely effect critical habitat. Based on this 
percentage, a project should incorporate, for each watercraft that is 
provided access, 0.16 hour of enforcement per year over a ten-year 
period. This ten percent change applies equally to funds contributed to 
a conservation entity, i.e., the contribution amount from single family 
applicants must be sufficient to provide 0.16 hour of enforcement per 
year for the ten-year period necessary to ensure that incidental take 
is unlikely to occur.
    If it is determined that means other than increasing law 
enforcement hours on the water may be an appropriate conservation 
measure in a medium risk county, the alternate means should be 
comparable in value to 0.16 hours of enforcement per year over the ten-
year period.
    Low risk areas represent the extended summer, or warm season, 
manatee range. In low risk areas, there is no documented watercraft-
related mortality and, at this time, we believe that the potential for 
incidental take from watercraft is unlikely to occur. Thus, we do not 
believe that in these areas conservation measures included as part of a 
proposed watercraft access facility will be necessary to come to a not 
likely to adversely affect determination. However, any project that 
would incorporate such conservation efforts would contribute to overall 
manatee recovery and such incorporation of measures is encouraged.

Program Monitoring and Evaluation

    The effectiveness of this guidance will be evaluated on a 
continuing basis by comparing watercraft-related manatee mortality data 
in areas where law enforcement has been increased to previous rates of 
mortality. Although review of program implementation and evaluation of 
manatee mortality and injury are continuous processes, the manatee 
mortality risk areas will be assessed at one-year intervals after 
implementation of this guidance. If the Service determines at any time 
that this interim strategy is not meeting its intended objectives, then 
it will be altered, suspended, or revoked until corrections can be made 
to rectify the situation. Monitoring implementation and effectiveness 
will determine the need to continue, to extend the scope of, to change 
elements of, and/or to add new components to the guidance. The Service 
will have a lead position that will be responsible for monitoring and 
accounting in coordination with the Manatee Recovery Team and all 
facilities that implement this guidance. Records and databases 
maintained by the Service can be reviewed by the public upon request. 
Table One of the Guidance, which reflects the high, medium, and low 
risk areas, will be revised based annually on current mortality data.

Long-Term Conservation Strategy

    Enforcement continues to be validated as an effective means of 
conserving the manatee by reduction in adult mortality. However, a 
larger program than that provided by this interim strategy is necessary 
to address existing watercraft-related mortality. Such a program has 
not been developed and we are currently working with various entities 
to accomplish this goal through an incidental take regulation under the 
MMPA. Concurrently, we are working with all partners to ensure speed 
zone placement and enforcement is both appropriate and adequate.
    We encourage the State of Florida, Corps of Engineers, or other 
Federal, tribal, local, and private entities to seek incidental take 
authorization for their activities that are likely to cause the 
incidental take of manatees as defined under the ESA and MMPA, instead 
of addressing access developments one by one through the use of this 
interim strategy. Incidental take may be authorized under the MMPA if 
the Service finds that incidental take associated with the requester's 
activity, after taking into account all measures committed to by the 
requester to reduce the affect of the activity, will have a negligible 
impact on manatees. Incidental take can be exempted under the ESA only 
upon completion of authorization under the MMPA. The MMPA incidental 
take regulation process requires compliance with the National 
Environmental Policy Act and public comment and review. The result of 
this rulemaking process would be to address incidental take under the 
MMPA and the ESA in the process of recovering the manatee. The final 
Manatee Recovery Plan is expected to support both the interim strategy 
and this long term rulemaking process and provide additional guidance 
if deemed appropriate by the Service and the Manatee Recovery Team.

Public Comments Solicited

    We are seeking information, views, and opinions from the public 
related to this interim strategy, the supporting analyses, and proposed 
implementation. We will consider all comments received by the date 
specified above.

    Authority: The authority for this action is section 7 of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)

    Dated: December 18, 2001.
Sam D. Hamilton,
Regional Director.
[FR Doc. 01-6040 Filed 3-13-01; 8:45 am]
BILLING CODE 4310-55-P