[Federal Register Volume 66, Number 162 (Tuesday, August 21, 2001)]
[Notices]
[Pages 43885-43896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21069]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Interim Strategy on Section 7 Consultations under the Endangered 
Species Act for Watercraft Access Projects in Florida That May 
Indirectly Affect the Florida Manatee

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final interim strategy document.

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SUMMARY: We, the Fish and Wildlife Service (Service), announce the 
final 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 final interim strategy 
represents our guidance regarding conservation measures that should be 
incorporated into watercraft access facility designs in order that, in 
some cases, projects would not likely cause incidental take of the 
Florida manatee (Trichechus manatus). This final interim strategy 
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 Marine Mammal Protection Act 
(MMPA). Instead, this final interim strategy document focuses on one 
particular form of potential incidental take--the increased likelihood 
of manatee mortalities and injuries as a result of collisions with 
watercraft.
    We believe 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. Since publication of the draft interim 
strategy, we have become aware that the State of Florida has refocused 
its existing law enforcement efforts, as well as deployed additional 
law enforcement officers specifically to enforce manatee protection 
laws. The State's law enforcement initiative will result in a more 
effective means to address the indirect effects of watercraft access 
development on manatees. We, therefore, have modified the draft interim 
strategy to eliminate the contribution because the State has come 
forward with an initiative that resolves law enforcement issues in 
manatee waters and we have determined that the contribution portion of 
the interim strategy is no longer necessary. As appropriate, we 
considered and incorporated comments received during

[[Page 43886]]

the public review period in order to finalize the interim strategy.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this document, will be available 
for public inspection, by appointment, during normal business hours at 
the South Florida Ecological Services Office, 1339 20th Street, Vero 
Beach, Florida 32960.

FOR FURTHER INFORMATION CONTACT: Kalani Cairns, telephone 561/562-3909 
extension 240, facsimile 561/562-4288, or electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    A coalition of environmental and animal rights groups sued us and 
the U.S. Army Corps of Engineers (Corps)in January 2000. This lawsuit 
claimed that we were not fulfilling our obligations to protect the 
endangered Florida manatee under the ESA and the Marine Mammal 
Protection Act (MMPA). Settlement of the Save the Manatee Club et al v. 
Ballard case in January 2001 avoided unnecessary litigation. In the 
settlement, we agreed to a general time line for accomplishing specific 
tasks including publishing a revised manatee recovery plan; completing 
a review of and publishing our decision regarding federal designation 
of manatee protection areas; developing and publishing Incidental Take 
Regulations pursuant to the MMPA; and addressing shortfalls in law 
enforcement.
    On March 14, 2001, we announced the availability of a draft interim 
strategy to comply with the provisions of the ESA on actions resulting 
in increased watercraft access in Florida (66 FR 14924). This draft 
interim strategy represented our guidance regarding 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 Florida manatee. We called this document an 
``interim'' strategy because it was 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 MMPA were being promulgated.
    The draft interim strategy was 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 will continue to 
fulfill our section 7 consultation responsibilities regarding the 
Florida manatee. All determinations made during informal and formal 
consultation will be made in accordance with the ESA, our regulations 
implementing section 7 (50 CFR part 402), and our March 1998 Endangered 
Species Consultation Handbook.
    The draft interim strategy document reflected our findings on the 
conditions under which we could conclude that a proposed watercraft 
access facility is unlikely to cause a ``take'' of manatees, as defined 
in the ESA Sec. 3(18) and 50 CFR 17.3. It also included 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.
    The draft interim strategy document did not authorize incidental 
take of manatees. Incidental take of manatees without authorization is 
unlawful and such authorization cannot occur until and unless we issue 
appropriate regulations under the MMPA. It is also important to stress 
that the draft interim strategy document did 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. However, we must consider, as with all consultations, other 
direct and indirect effects to the manatee and its habitat, such as sea 
grasses.
    ESA regulations require the Federal action agency to submit a 
description of the effects of the action on the listed species and/or 
its habitat and an analysis of any cumulative effects, a thorough 
analysis of the effects of the proposed action on manatees, manatee 
habitat, and manatee critical habitat.
    Instead, the draft interim strategy document focused on one 
particular form of potential incidental take, that is, the increased 
likelihood of manatee mortalities and injuries as a result of 
collisions with watercraft. Watercraft-related mortality is the number 
one cause of human-related manatee deaths. Adult survival rates are one 
of the key criteria we consider in gauging success of our recovery 
efforts, and we believe that an increased presence of on-the-water 
speed zone enforcement is the most effective means to significantly 
impact overall adult manatee survival rates.

Previous Federal Action

    On March 14, 2001, we published in the Federal Register (66 FR 
14924) a notice of availability of a draft interim strategy on section 
7 consultations under the ESA for watercraft access projects in Florida 
that may indirectly affect the Florida manatee. In addition, we held 
eight public meetings throughout Florida in the following locations--
Miami on April 16, 2001; Fort Myers on April 17; St. Petersburg on 
April 18; Marco Island on April 19; Jacksonville on April 23; Daytona 
Beach on April 24; Melbourne on April 25; and West Palm Beach on April 
26. The comment period closed on May 14, 2001.
    In the Federal Register notice, we requested information, views, 
and opinions from the public related to this draft interim strategy, 
the supporting analyses, and proposed implementation. We contacted 
State and Federal agencies, Tribes, county governments, scientific 
organizations, and other interested parties and invited them to 
comment. In addition, we published notices announcing the public 
meetings and inviting public comments in the following newspapers-- 
Bradenton Herald, Charlotte Sun Herald, The Citizen (Key West), Citrus 
County Chronicle, Florida Today (Brevard County), Florida Times-Union 
(Jacksonville), Fort Pierce Tribune, Miami Herald, Naples Daily News, 
News Herald (Panama City), News Journal (Daytona Beach), News-Press 
(Fort Myers), Orlando Sentinel, Palatka Daily News, Palm Beach Daily 
Business Review, Palm Beach Daily News, Palm Beach Post, Press Journal 
(Vero Beach), Sarasota Herald-Tribune, South Florida Sun-Sentinel (Ft. 
Lauderdale), St. Augustine Record, St. Petersburg Times, Stuart News, 
Tallahassee Democrat, and the Tampa Tribune.

Summary of Comments and Recommendations

    We received approximately 2,000 written and oral comments pertinent 
to the draft interim strategy from elected officials, individuals, 
government agencies, private industries, and organizations. In general, 
public comment on the draft interim strategy was supportive of the law 
enforcement concept, but was not supportive of the process.
    Following is a summary of the comments received. Comments of a 
similar nature have been grouped together.
    Comment 1: The Florida Fish and Wildlife Conservation Commission 
(Commission) and other commenters were concerned that the draft interim 
strategy would not be effective in counties where comprehensive manatee 
speed zones are not yet established and that the draft interim strategy 
does not provide alternatives for applicants if additional speed zones 
cannot be established.

[[Page 43887]]

    Response: We recognize that some counties do not have established 
manatee speed zones. In developing the draft interim strategy, we 
assessed regional manatee populations, manatee ecology, and watercraft-
related manatee mortality to determine relative risk of watercraft-
related manatee losses and have delineated three relative risk areas 
throughout Florida. We defined these risk areas (= counties) as high 
(averaged one or more watercraft-related manatee mortalities per year 
during the past ten years); medium (averaged less than one, but more 
than zero, watercraft-related manatee mortality per year during the 
same time period); and low (no documented watercraft-related 
mortality). In addition to these risk areas, we have developed a reach-
by-reach analysis, outlined in the response to Comment 4, in evaluating 
a watercraft access project's effects on manatees.
    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. 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 a 
project, speed zone signage is adequate throughout these areas, and 
that adequate levels of speed zone enforcement will occur throughout 
these areas before we 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, that is, 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, we would not be able to conclude that the project is not likely 
to incidentally take manatees through watercraft collisions.
    Of the 15 counties in medium risk areas only, nine have countywide 
or site-specific speed zones. The remaining six medium risk counties 
have no enforceable speed zones. As with high risk counties, we 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 adversely 
affect manatees.
    Comment 2: The Commission and other commenters were also concerned 
that the draft interim strategy does not consider land use decisions, 
local Manatee Protection Plans, or other state or local conservation 
laws as solutions to reducing watercraft-related manatee mortality.
    Response: We consider land use decisions the responsibility of 
local governments and not the Federal government. Although we do 
consider land use decisions, local Manatee Protection Plans, and other 
state or local conservation laws, in the section 7 process in 
evaluating a watercraft access project's effects on manatees, these 
local land planning tools may or may not affect the final outcome of a 
biological rationale presented in a Service concurrence letter or 
biological opinion. While land use decisions are not the responsibility 
of the Federal government, we recognize the right of local and State 
governments to be more restrictive in imposing measures for manatee 
conservation, and recommend that proposed projects comply with such 
measures. The draft interim strategy provided a way to guide projects 
to include offsetting measures, specifically increased law enforcement, 
that applicants could use to reduce the likelihood of incidental take 
of manatees. Instead of concentrating on local decisions and law, the 
focus of the draft interim strategy was on appropriately located 
manatee speed zones that are adequately posted, coupled with sufficient 
levels of law enforcement in place before the project moved forward.
    Comment 3: The Commission and other commenters believe the draft 
interim strategy encourages a piecemeal approach to establishing and 
posting manatee speed zones based on the needs of a single project 
rather than on an ecosystem level.
    Response: Contrary to a piecemeal approach, we viewed the draft 
interim strategy as a statewide approach to evaluating the potential 
effects of new watercraft access projects on manatees and their 
habitat. The draft interim strategy did not authorize incidental take 
of manatees and incidental take is unlawful without authorization and 
such authorization cannot occur without appropriate regulations under 
MMPA. The draft interim strategy provided conservation measures, 
primarily increased manatee speed zone enforcement statewide, to ensure 
that the incidental take of manatees associated with new watercraft 
access facilities was reduced to an unlikely to occur level. In 
addition, the draft interim strategy established four prerequisites 
(adequate speed zone designations, signage, and on-the-water 
enforcement, including the requirement that such measures be in place 
prior to project implementation) which must be evaluated prior to 
concluding that incidental take was unlikely to occur.
    Multi-slip projects are evaluated on a case-by-case basis in medium 
and high risk counties to determine whether a proposed watercraft 
project is likely to result in the incidental take of manatees or 
whether specific conditions in the project area as well as measures 
incorporated into the project's design are such that we can reasonably 
conclude that the project is not likely to result in the incidental 
take of manatees.
    Overall, we believe that the State and other law enforcement 
initiatives as well as the continuing analysis (as new information 
becomes available) to evaluate the adequacy of manatee speed zones will 
result in an effective statewide means to address the indirect effects 
referenced by the draft interim strategy on manatees on a landscape-
scale.
    Comment 4: The Commission and other commenters stated that the 
draft interim strategy does not identify a method or criteria for 
determining the adequacy of a speed zone, signage, and/or enforcement.
    Response: While the draft interim strategy does not set forth 
criteria for determining the adequacy of speed zone designations, 
signage and/or enforcement, we do include the basis for our 
determinations in our concurrence letters and biological opinions to 
the Army Corps of Engineers' (Corps). In making these determinations, 
we rely on the best scientific and commercial data available, including 
manatee mortality data for a particular area, potential impacts to 
manatee habitat such as seagrasses, information regarding boater 
compliance with speed zones in the area, the anticipated beneficial 
effect of any conservation measures incorporated into the project's 
design, including the degree to which such measures are anticipated to 
increase speed zone enforcement in the area, etc. We will continue to 
rely on these and other site-specific criteria such as watercraft and 
manatee travel patterns, as available, to make determinations on the 
adequacy of

[[Page 43888]]

speed zones, signage and/or enforcement.
    Recognizing the responsibilities and commitments by both agencies 
on many overlapping issues regarding the manatee, we are currently 
working with the Commission and local governments to ensure speed zone 
placement, signage, and enforcement are or will be appropriate and 
adequate. While manatee mortality in some areas has been high, we 
expect that the State's law enforcement initiative will help reduce 
incidental take as the result of watercraft collisions.
    We accept this comment as a valid concern and have modified the 
interim strategy to incorporate manatee speed zone criteria in the 
Reach-by-Reach analysis already conducted by us as well as any new 
information that becomes available during project review.
    To analyze the effects of watercraft access projects on manatees, 
we reviewed the baseline conditions for each of the manatee 
subpopulations by county and by ``reach'' based on a combination of 
information available to us including the Corps' Reach Characterization 
Analysis Geographic Information System (GIS) database. We used counties 
as a basic geographic analysis area because many factors important to 
manatee protection are provided at the county level. Manatee Protection 
Plans are produced by counties, manatee speed zones are designated by 
the State with county participation or by counties on a county level, 
and county sheriff's departments provide enforcement within county 
boundaries. These factors make county-by-county and reach-by-reach 
review the most logical and manageable way to analyze data and provide 
recommended courses of action. This county-by-county and reach-by-reach 
review approach provides a more holistic evaluation of speed zones than 
a piecemeal project-by-project review.
    To evaluate the adequacy of existing manatee speed zones throughout 
Florida, we used information from the Corps' Reach Characterization 
Analysis combined with the most current information available regarding 
manatee use, manatee habitat, manatee mortality and harassment. The 
Corps compiled existing data relevant to the evaluation of the 
potential effects of watercraft access projects on manatees. The 
information contained in the Reach Characterization Analysis included 
manatee use data such as aerial surveys and radio telemetry; manatee 
habitat characteristics such as warmwater sites, seagrass distribution, 
and bathymetry; human use characteristics such as relative dock 
densities, boat densities, and navigation channels; and existing 
manatee protection measures (boating speed zones). Throughout Florida, 
the Corps defined 80 ``reaches'' based on manatee use, manatee habitat 
characteristics, and human use characteristics. The Corps compiled this 
information into its GIS database.
    In some areas, we feel that changes of the Corps reach boundaries 
would provide a better characterization of the effects of regulated 
activities on manatees, and our analysis reflects these 
recommendations. We view the Reach Characterization Analysis as a 
dynamic process, and will continue to recommend changes to Corps 
reaches based on new information regarding manatees, boating 
activities, and the interaction of manatees and boating that affect 
manatees. To ensure the use of the best scientific and commercial data 
available, we supplemented the Reach Characterization Analysis 
information with 2000 and 2001 manatee mortality data from the Florida 
Marine Research Institute, and other information such as information 
from the Service's Division of Law Enforcement regarding the adequacy 
of speed zone signage in certain areas.
    To reduce the likelihood of incidental take associated with any new 
multi-slip watercraft access projects, the Interim Strategy provides 
four prerequisites, that: (1) Adequate speed zones must exist in areas 
anticipated to have increased watercraft traffic as a result of the 
proposed development; (2) signage is adequate to ensure that boaters 
are aware of the existing speed zones; (3) enforcement in the vicinity 
of the proposed development is, or with project conservation measures 
will be, sufficient to prevent watercraft collisions with manatees; and 
(4) these measures be in place prior to implementation of the project.
    In reviewing the baseline, we looked at existing speed zones, 
levels of enforcement, manatee aggregation areas, warmwater refugia, 
freshwater sources, seagrass beds, and other biological factors to 
determine if speed zones or levels of enforcement were sufficient to 
minimize the risk of manatee mortality. We focused on manatee mortality 
because this is the only form of take for which quantitative data are 
available. We assume that the available information regarding 
watercraft-related manatee mortality is a reliable indicator of other 
forms of incidental take, including injury and harassment. In areas 
where speed zones are appropriately designated and signed, increased 
enforcement provided by the State's Law Enforcement Initiative and 
other law enforcement efforts would improve compliance with manatee 
speed zones, reducing risk of watercraft collisions with manatees. The 
decrease in manatee-watercraft collisions would result in a stable or 
decreasing trend in watercraft-related manatee mortality.
    Speed zones are designated by the Commission under Rule and 
published in the Florida Administrative Code (FAC). Types of zones 
designated include motorboat no entry zones (year-round), idle speed 
zones (year-round), idle speed zones (November 15 through April 30), 
slow speed zones (year-round), slow speed zones (November 15 through 
April 30), and maximum 25 mph/slow speed buffer zones (year-round). In 
addition, some speed zones include or specifically exclude navigational 
channels in the vicinity. In areas where manatee mortality has 
decreased or been stable since manatee speed zones were designated, 
signed, and enforced, we assumed that designation of manatee speed 
zones will protect manatees as required in prerequisite 1 above.
    Speed zone enforcement cannot be implemented in an area unless the 
zones are well marked and the regulatory codes authorizing the zones 
are also on the signs (FAC 2001). The Florida Department of 
Environmental Protection (FDEP) and Florida Inland Navigational 
District (FIND) or West Coast Inland Navigation District (WCIND) 
provide installation and maintenance of speed zone signs. Manatee speed 
zone areas are inspected annually or after storm events by FIND or 
WCIND to ensure that adequate marking is present, and that no hazards 
to navigation exist. In areas where FIND, WCIND, the State, and/or 
counties regularly monitor and replace signs, we assumed that manatee 
speed zone signage will protect manatees as required in prerequisite 2 
above.
    Data from the Commission's Division of Law Enforcement were used to 
assess a per-slip level of current law enforcement to boater ratio in 
waters within Florida in the Interim Strategy. The estimated ratio of 
law enforcement officers to registered watercraft in Florida is one 
enforcement officer per 1,356 watercraft. Dividing the total number of 
annual work hours (2,080) by registered watercraft (1,356) yields a 
current average of 1.50 hours of enforcement per registered watercraft 
per year. This figure represents an index of the level of law 
enforcement potentially available throughout the State and does not 
reflect the total amount of law enforcement at a particular location. 
Enforcement of posted speed zones may be provided by

[[Page 43889]]

the Service, the State, county sheriff's officers, city or other 
municipalities, and other entities with on-the-water enforcement 
capabilities such as the National Marine Sanctuaries Squad. The Coast 
Guard and the Service also provide speed zone enforcement through 
special task force events. We calculated the amount of law enforcement 
provided by the State's Law Enforcement Initiative and the Corps' 
estimated number of slips likely to be permitted by county to ensure 
that an amount of enforcement per slip currently provided by all law 
enforcement efforts is consistent with the Interim Strategy. The 
State's Initiative results in an up-front, permanent commitment of 
officers; administration is simplified and carried out by the State. 
Based on our analysis, the State's Initiative will cover approximately 
370,000 watercraft access projects (= boat slips) over 32 coastal 
counties where manatees occur for the next ten years. On average, the 
construction of approximately 5,000 slips is authorized annually in 
Florida's waters. The State's Initiative provides for a significantly 
higher level of on-the-water manatee protection and law enforcement 
than what would be provided under our draft interim strategy. In Corps 
reaches where the State's law enforcement initiative and other on-the-
water enforcement exceed the per slip enforcement in the Interim 
Strategy, we assumed speed zone law enforcement will protect manatees 
as required in prerequisites 3 and 4 above.
    We reviewed all of the above information to evaluate speed zone 
designation, signage, and enforcement currently in place for the 
various reaches defined by the Corps. During our review, we located 
areas where current speed zones are either non-existent or 
inappropriately designated to minimize risk of manatee-watercraft 
collisions as areas with increasing and/or ongoing mortality. 
Additional enforcement in such areas would not decrease take to a ``not 
likely to occur'' level and these were identified as ``areas with 
inadequate protection.'' Implementation of additional speed zones, 
signage, and/or enforcement were determined to be necessary if:
    1. Manatee mortality data indicate on-going recovery of watercraft-
related mortality manatee carcasses within the reach within the last 10 
years, particularly in years since speed zones and signs have been in 
place with enforcement;
    2. Speed zones, signage, and/or enforcement levels are not provided 
to assume manatees are protected as described above; and/or
    3. Available information indicate ongoing mortality and harassment 
of manatees at warmwater sites.
    ``Areas with inadequate protection'' were examined per the above 
criteria, to determine whether the deficiencies affected entire reaches 
or portion of reaches in question. For example, some areas that 
currently lack manatee speed zones, signage, and enforcement affect 
only a portion of the Corps reach and are not located along primary 
watercraft travel corridors. In such instances, we concluded that 
increases in boat traffic within certain areas would adversely affect 
manatees and identified that portion of the reach as an ``area with 
inadequate protection.''
    Conversely, other areas currently lack adequate manatee speed 
zones, signage, and enforcement over entire reaches, and/or are located 
along primary watercraft travel corridors. In these areas, we 
reasonably assumed a high likelihood that increases in watercraft 
access anywhere within the reach or reaches would increase boat 
traffic, increasing risks to manatees, and designated the reach or 
reaches as an ``area with inadequate protection.''
    We will continue to review new multi-slip watercraft access 
projects in medium and high risk counties. Additional watercraft access 
projects in ``areas with inadequate protection'' may result in take of 
manatees and cannot be consistent with the final Interim Strategy. We 
believe that these projects would require separate review and potential 
authorization for incidental take under the MMPA. Should appropriate 
speed zones be created or modified to provide additional protection for 
manatees, the designation of an reach or portion of a reach as an 
``area with inadequate protection'' could be modified to reflect a 
change in the baseline.
    Comment 5: The Commission and other commenters disagreed with the 
draft interim strategy, in which the Corps and/or the applicant is 
required to perform the analysis on the effects of a watercraft access 
project on the manatee. It was recommended by one commenter that the 
Service should proactively solicit the comments and views of other 
experts who do not share the project applicant's self-interest in 
project approval, e.g., the Commission, Save the Manatee Club and other 
conservation groups, the Marine Mammal Commission, and independent 
scientists.
    Response: ESA regulations require the Federal action agency to 
submit a description of the effects of the action on the listed species 
and/or its habitat and an analysis of any cumulative effects. The Corps 
may require the applicant to provide the biological evaluation. It is 
our responsibility to determine if all the information required by the 
regulations has been provided by the Federal action agency and whether 
the information includes the best scientific and commercial data 
available.
    We have worked closely with the groups stated above, as well as 
other environmental and industry groups, that do not share the project 
applicant's interests. We typically coordinate with state agencies in 
our review of individual projects. In addition, we frequently solicit 
the comments and advice of conservation organizations, state and local 
governments, and other experts on broad manatee conservation issues 
(e.g., recovery plan). We will not always be able to resolve issues 
from such diverse groups to everyone's satisfaction. Therefore, we will 
continue to obtain and consider the best scientific and commercial data 
available in our reviews and evaluations.
    Comment 6: Another commenter listed several concerns with the draft 
interim strategy which are discussed in the following paragraphs.
    A. The first concern emphasizes that incidental take of manatees 
cannot occur until and unless we promulgate MMPA rules, and that the 
draft interim strategy is not and cannot be a mechanism for authorizing 
take. The commenter further states that the draft interim strategy must 
be designed and must be implemented in a fashion which ensures that no 
Corps-permitted project proceeds which may take manatees in any 
fashion. The commenter agreed with the Commission that the proposed 
strategy encourages piecemeal approaches to establishing and posting 
speed zones based on the needs of a single development rather than 
ecosystem level needs.
    Response: We have addressed these concerns in our responses to 
Comments 3 and 4 above.
    B. The second concern is that the draft interim strategy should not 
be used as a means to bypass formal consultation. The commenter states 
that since adoption of the draft interim strategy, we have bypassed 
formal consultation on more than 100 Corps permits, and have not 
entered formal consultation on any project, and that we should abide by 
the four basic prerequisites set forth in the draft interim strategy 
for finding that incidental take from watercraft collisions is unlikely 
to occur as a result of a particular project.
    Response: The draft interim strategy was not designed to bypass 
formal

[[Page 43890]]

consultation. Using the manatee key to guide its effect determinations, 
the Corps has requested and we have completed consultation for a number 
of watercraft access projects that incorporated conservation measures 
consistent with the draft interim strategy in areas that meet the four 
prerequisites. Consultation is completed informally for projects that 
are ``may affect, but not likely to adversely affect'' with issuance of 
the Service's concurrence letter. Each of our concurrence letters 
addresses the four prerequisites which must be satisfied for us to 
determine that incidental take is unlikely to occur as a result of the 
project. The ultimate decision on whether a permit will be issued for a 
project after consultation with the Service rests entirely with the 
Corps.
    In those cases when the four prerequisites cannot be met in an area 
or when incorporation of conservation measures into project designs 
will not reduce the potential for adverse effects including incidental 
take to an unlikely to occur level, consultation cannot be completed 
informally, and formal consultation will be required. We have also 
addressed these concerns in our response to Comments 3 and 4 above.
    C. The third concern is that we should make clear in the draft 
interim strategy that we will, in every case, analyze whether a 
proposed project is inconsistent with siting policies embodied in local 
Manatee Protection Plans or other state and local conservation laws, 
and most important, will not give concurrence on any project which is 
inconsistent with any such plan or ordinance designed to protect 
manatees. The commenter further states that, in areas of high manatee 
mortality and injury, water access projects should not be permitted to 
proceed until and unless effective ``take reduction'' strategies have 
been adopted, implemented, and are producing empirical effects in terms 
of actual reductions of manatee deaths and injuries.
    Response: We addressed comments involving local Manatee Protection 
Plans and other State or local conservation laws under Comment 2 above. 
Regarding areas that support manatee concentrations coupled with high 
manatee mortality, we emphasize that, in all probability, the 
incorporation of conservation measures into a project design will not 
reduce the likelihood of incidental take to an unlikely to occur level. 
Hence, we cannot concur that the project is unlikely to result in 
incidental take of manatees.
    We believe that the draft interim strategy, which identified the 
four prerequisites and the need for increased law enforcement to reduce 
incidental take to an unlikely to occur level, was a proactive take 
reduction strategy. As presented in the response to Comment 4, we 
evaluated areas that are experiencing a consistently high level of 
manatee mortality and injuries and identified these areas as ``Areas of 
Inadequate Protection''. In some ``Areas of Inadequate Protection'' 
areas, where speed zone designation, signage, and/or enforcement are 
inadequate, addressing one or all of these factors may result in ``take 
reduction.'' In other words, the four prerequisites and the State's 
increased law enforcement initiative represent what we believe is a 
``take reduction strategy.'' In other ``Areas of Inadequate 
Protection'', where manatee and watercraft use are consistently high, 
there may be no strategies to reduce take and incidental take cannot be 
evaluated under ESA until and unless special regulations are 
promulgated under MMPA.
    The draft interim strategy also addressed the need and provided for 
continual program monitoring and evaluation, and called for changes if 
the increased law enforcement was not resulting in reduced manatee-
watercraft collisions.
    D. The fourth concern relates to the formula used to calculate the 
amount of increased law enforcement that a new watercraft access 
project will have to provide in order for the project to not likely 
result in incidental take of manatees. The commenter states that there 
is no scientific evidence to support the formula. The commenter further 
states that the Service's approach omits, but should include 
considerations of ``carrying capacity'' (the maximum number of boats 
that can be permitted in any habitat used by manatees without making 
adverse effects to the species inevitable, irrespective of the number 
of speed zones and amount of enforcement taking place).
    Response: We explained in the draft interim strategy the basis for 
the formula used to calculate the amount of increased law enforcement 
that a new watercraft access project would provide in the ``Determining 
the amount of increased law enforcement hours necessary'' section of 
the draft interim strategy. We explained that the current statewide 
average of Commission officers to registered watercraft plus an 
additional ten percent was the basis for the formula. The rationale was 
that new watercraft access facilities must provide for the maintenance 
of the current law enforcement to watercraft ratio plus ten percent in 
order to assure that manatee mortality would not increase due to the 
increase of new watercraft resulting in less enforcement available per 
watercraft. We agree that there may be other methods to calculate 
``adequate'' increased enforcement, but none have been offered. We have 
encouraged any entity with such information to provide that information 
and to work with the Service.
    With regard to the ``[boat] carrying capacity'' issue, we do not 
know of a formula to calculate the maximum number of boats that can be 
permitted in any habitat used by manatees without making adverse 
effects to the species inevitable, irrespective of the number of speed 
zones and amount of enforcement taking place. There are currently areas 
with higher watercraft and manatee use that experience lower 
watercraft-related manatee mortality, and other areas with lower 
watercraft and manatee use that experience higher watercraft-related 
manatee mortality. We encourage individuals or organizations who have 
information or have developed such a ``[boat] carrying capacity'' 
formula to work with the Service. We believe that watercraft operating 
in a safe and legal manner in waters inhabited by manatees, 
particularly in manatee speed zones, are unlikely to result in the take 
of manatees. We support and encourage compliance with all local zoning 
laws or Manatee Protection Plans which protect manatees.
    Comment 7: Several commenters thought the draft interim strategy 
applied to existing watercraft access facilities or to the replacement 
or repair of existing facilities or to non-watercraft access facilities 
such as fishing piers.
    Response: We clarified during the public meetings and in the final 
interim strategy that the draft interim strategy applied only to new 
facilities that facilitate watercraft access to Florida's waters and 
did not apply to existing structures or their replacement or repair.
    Comment 8: Several commenters challenged the Service's involvement 
with the Corps' regulatory process in permitting new watercraft access 
projects.
    Response: Section 7(a)(2) of the ESA states that any Federal agency 
shall, in consultation with us, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of listed species or result in the destruction or adverse modification 
of designated critical habitat. When the Corps processes permit 
applications for watercraft access projects, they are required to 
consult with us for potential effects to manatees and their habitats.
    Comment 9: Several commenters asked if there were areas where the

[[Page 43891]]

Corps may not issue permits to construct new watercraft access 
facilities.
    Response: In addition to the reach-by-reach analysis outlined in 
the response to Comment 4 above, there are consultation tools, in 
particular the Corps' revised manatee key and associated maps, which 
will identify areas where additional actions may be needed in order for 
the Corps to issue permits for new multi-slip watercraft access 
facilities. The maps are our current interpretation of the criteria 
used to make a determination on the individual reaches and will be 
reviewed and revised periodically. As the maps are revised, they will 
be available at: http://verobeach.fws.gov/manatee_issues/interim_strategy.htm.
    The manatee key identifies areas with ``In-water Construction 
Windows'' and ``Areas with Inadequate Protection.'' In some of these 
areas, permits may be issued with special conditions that remove the 
likelihood of take of manatees. For example, a new facility proposed 
within an In-Water Construction Window area could be permitted only if 
construction was proposed outside of the window.
    Areas with Inadequate Protection, fall into one of two categories; 
designation based on a lack of one of the four prerequisites, or 
designation because the prerequisites will not reduce incidental take 
to an unlikely to occur level. If inadequate speed zones, signage, or 
enforcement are corrected for areas designated because of a deficiency, 
the Corps could initiate consultation with us. If consultation is 
initiated, we will evaluate the specific conditions in an area expected 
to be affected by the project, as well as the project design, in 
determining whether the project is likely to result in incidental take 
due to watercraft collisions. The four basic prerequisites necessary to 
ensure that incidental take is unlikely to occur are: (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 speed zones; (3) 
speed zone enforcement in these areas 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. If these 
prerequisites are met, we may find that a new facility would be 
unlikely to result in the incidental take of manatees. In areas 
designated because the four prerequisites will not reduce incidental 
take to an unlikely to occur level, we cannot provide an incidental 
take statement to the Corps for a facility under ESA until and unless 
incidental take is authorized under MMPA.
    A special regulation promulgated under MMPA could authorize 
incidental take that has a negligible effect on reproduction. We would 
then consider this information to determine if incidental take could be 
authorized under ESA in areas currently designated because the four 
prerequisites will not reduce incidental take to an unlikely to occur 
level. An Advance Notice of Proposed Rulemaking was published in the 
Federal Register on March 12, 2001 (Volume 66, Number 48, pages 14352-
14354) advising the public we are initiating our process for developing 
these Incidental Take Regulations. Public comments were requested and 
received on the advance notice process at that time. There will also be 
opportunity for public comment on the proposed regulations once they 
are formulated and published in the Federal Register, but before they 
are finalized.
    If we anticipate that incidental take may occur as a result of a 
project, we must determine whether or not that incidental take is 
likely to jeopardize the continued existence of the species. For such 
projects which we determine will not result in jeopardy or adverse 
modification of critical habitat, yet in our opinion are likely to 
result in the incidental take of manatees, we intend to exercise our 
authority under section 7 of the ESA to issue biological opinions that 
make clear that the project may contribute to incidental take of 
manatees and that incidental take may not be exempted in the absence of 
MMPA incidental take regulations. Subsequently, it is the Corps' 
responsibility to decide whether or not to issue a permit for a 
particular project.
    Comment 10: Several commenters asked why the draft interim strategy 
wasn't considering all forms of incidental take.
    Response: 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, we must consider all 
potential forms of incidental take. Watercraft-related mortality is the 
most significant factor that we can effectively address at this time to 
aid in manatee recovery. The purpose of the interim strategy is to 
focus on the potential for manatee-watercraft collisions, but we must 
and will continue to consider all other forms of potential effects to 
manatees in the consultation process.
    Comment 11: Several commenters felt that the draft interim strategy 
was inequitable in that new watercraft access projects were responsible 
for additional law enforcement rather than distributing the cost of 
increased enforcement among all boaters. On this issue, a number of 
commenters suggested alternatives for more equitable means of providing 
increased law enforcement, such as increased vessel registration fees.
    Response: We believe 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 recognize that increased vessel 
registration fees may be another way to accomplish this goal. At the 
time, the draft interim strategy represented the only mechanism by 
which some applicants could move forward with their projects in the 
absence of incidental take regulations. However, the State has come 
forward with an initiative that has significantly improved law 
enforcement in manatee waters and we have determined that the 
contribution portion of the interim strategy is no longer necessary.
    Comment 12: Other commenters questioned whether the contributions 
were sufficient to adequately fund increased law enforcement.
    Response: Based on our analysis of existing levels of law 
enforcement provided by the State and the amount of increased 
enforcement needed to ensure that a new watercraft access project would 
not likely cause the incidental take of manatees, we believe that the 
contribution amount is sufficient to provide the increase in on the 
water enforcement. With the State's law enforcement initiative, we have 
determined that the contribution portion of the interim strategy is no 
longer necessary.
    Comment 13: A number of commenters stated that the draft interim 
strategy was a form of extortion in that funds were required in 
proposing an appropriate conservation measure as part of an applicant's 
project design.
    Response: We believe that the increased presence of on-the-water 
enforcement is the single most effective means to accomplishing manatee 
conservation. To that end, we developed two voluntary options by which 
increased enforcement could be provided as part of an applicant's 
project design: one option was the establishment of an agreement or 
contract with a local law enforcement agency and the other option was 
for applicants to contribute to the Manatee Conservation Fund. Without 
either of these two options incorporated as part of a project's design, 
it was our opinion

[[Page 43892]]

that the project was likely to result in the incidental take of 
manatees. Because manatees are also protected by the MMPA, we cannot 
exempt incidental take for manatees under ESA, until and unless 
incidental take regulations are promulgated under MMPA. However, with 
the State's Law Enforcement Initiative, we have determined that the 
contribution portion of the interim strategy is no longer necessary.
    Comment 14: Several commenters believed that the draft interim 
strategy requires the preparation of an Environmental Assessment or an 
Environmental Impact Statement under the National Environmental Policy 
Act.
    Response: This action is categorically excluded in accordance with 
NEPA requirements [per 516 DM 6, Appendix 1.4(A)(3)].
    Comment 15: Several commenters questioned why the draft interim 
strategy was needed since the manatee population was increasing.
    Response: We are pleased with this year's manatee count and see 
these numbers as indicative of the success of many long-term 
conservation efforts. However, collisions with watercraft continue to 
impact manatees. Whether or not the manatee population grows or 
declines is primarily dependent on the survival rate of adult manatees. 
The interim strategy is designed to help ensure sufficient adult 
survival and aid in recovery of this species. The State's Law 
Enforcement Initiative will also help in reaching these goals.
    Comment 16: Several commenters asked if the increase in manatee 
mortality was the reason for the draft interim strategy.
    Response: Watercraft-related mortality is the number one cause of 
human-related deaths. The interim strategy is our guidance to any 
person or organization regarding 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 
manatee. The strategy is defined as an ``interim'' strategy because it 
is designed to provide guidance relating to the indirect effects of 
watercraft access projects on manatees only during the time period 
while ``incidental take'' regulations under MMPA are being developed. 
The draft interim strategy would have offered us an opportunity to 
implement sound, effective risk-reduction management actions, such as 
increased manatee speed zone enforcement, during the time period while 
incidental take regulations under the MMPA are being promulgated. Adult 
survival rates are one of the key criteria we consider in gauging 
success of our recovery efforts. Increased manatee speed zone 
enforcement also is expected to have a significant impact on overall 
adult manatee survival rates.
    Comment 17: Many commenters asked, if 25 percent of manatee 
mortality is human-related, why the Service is not doing anything to 
reduce the 75 percent of manatee mortality that was not human-related.
    Response: We are aware that the largest percentage of manatee 
deaths can be attributed to other categories such as natural or 
perinatal or even undetermined causes. We also recognize that these 
types of manatee mortality cannot be directly controlled by agency 
actions. Indeed, included in the remaining 75 percent are deaths due to 
natural causes. However, one effective approach to recover the manatee 
is to control human-related mortality. See the response to Comment 18 
below.
    Comment 18: Several commenters asked what is the long-term strategy 
for manatee conservation.
    Response: We believe that manatee speed zone enforcement is the 
most effective means of conserving the manatee by reducing adult 
mortality. However, it is 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 warmwater refugia, and assessment of the effectiveness of law 
enforcement and public awareness efforts in decreasing or eliminating 
watercraft-related manatee mortality.

State of Florida's Manatee Law Enforcement Initiative

    For several months, we have coordinated with the Governor's Office 
regarding the State's participation in manatee protection measures. 
Governor Jeb Bush informed us in writing on May 29, 2001, that the 2001 
Florida Legislature approved 25 additional law enforcement positions to 
be deployed throughout those coastal counties where manatees are at a 
high risk of death or injury due to human-related causes. In addition 
to these new officers, Governor Bush's letter also states that 23 desk-
assigned officers will be redeployed to water patrol activities. The 
Governor's letter further states that, for 2001, increased manatee 
speed zone enforcement efforts by the State resulted in reversing a 3-
year trend of increasing manatee deaths due to watercraft collisions 
for the same period prior to 2001. Coupled with the increase in 
enforcement, the Governor and the Cabinet voted on July 25, 2000, not 
to approve new or expanding marina facilities in those counties that do 
not have an approved Manatee Protection Plan. The letter concluded with 
the Governor requesting us to withdraw the draft interim strategy in 
light of the fact that additional and adequate enforcement necessary to 
protect manatees has been provided by the State of Florida.
    Additional discussions with the Governor's Office indicate that the 
Commission has reassigned 23 law enforcement officers and hired 25 
additional officers to increase and improve enforcement of manatee 
protection laws, including manatee speed zones. The Commission has also 
reorganized 313 existing law enforcement officers in addition to the 
increase in officers listed above to refocus a portion of their 
activities toward manatee protection. Furthermore, the State has 
allocated $2 million for those officers willing to work overtime, which 
translates into additional hours of manatee protection. Finally, the 
State is also considering adding a number of new officers for manatee 
protection next year. Hence, the State proposed that we withdraw the 
draft interim strategy because the increase in law enforcement that 
would be provided in accordance with its implementation has been 
provided for up-front by the State's Initiative.

Final Interim Strategy

Introduction

    This final interim strategy represents our guidance regarding 
conservation measures that should be incorporated into watercraft 
access facility designs in order that, in some cases, projects would 
not likely cause incidental take of the Florida manatee.
    We believe that the State's Initiative removes the need for 
implementation of the contributions for increased law enforcement. 
Therefore, we have removed the contributions for law enforcement from 
our final interim strategy. The State's Initiative results in an up-
front, permanent commitment of officers; administration is simplified 
and carried out by the State. Based on our analysis, the State's 
Initiative will cover approximately 370,000 watercraft access projects 
(= boat slips) over 32 coastal counties where manatees occur for the 
next ten years. On average, the construction of approximately 5,000 
slips is authorized annually in Florida's

[[Page 43893]]

waters. The State's Initiative provides for a significantly higher 
level of on-the-water manatee protection and law enforcement than what 
would be provided under our draft interim strategy.
    We also believe that the State's Initiative will effectively and, 
under today's conditions, adequately staff manatee-inhabited waters 
with the necessary allocation of enforcement officers, thereby 
eliminating the need for applicants of watercraft access projects to 
either establish an agreement or contract with a local law enforcement 
agency or contribute to the Manatee Conservation Fund as options in 
providing increased enforcement as part of their project design.
    Our draft interim strategy would have resulted in incremental and 
temporary implementation of increased enforcement as new watercraft 
access projects were permitted. With the State's Initiative, law 
enforcement will be provided up-front and on a guaranteed annual basis 
versus a temporally distributed deployment of efforts under the draft 
interim strategy. We believe this increased early-on deployment prior 
to MMPA regulations promulgation is far superior to the phased-in 
deployment that would have occurred under the draft interim strategy. 
The State's Initiative will result in a more effective means to address 
the indirect effects of watercraft access development on manatees.

Interim Strategy

    This final 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, we 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 Corps will provide a copy of this final interim strategy to the 
applicant for use in designing their proposed action to comply with the 
provisions of the ESA. The Corps will provide a letter to us with a 
complete project description, including any conservation measures, and 
request that we review the proposed action for compliance with the ESA. 
The specific conservation measures necessary in any given situation 
will vary according to mortality risk in the area of the proposed 
project.
    In developing the interim strategy, we assessed regional manatee 
populations, manatee ecology, and historic watercraft-related manatee 
mortality to determine relative risk of watercraft-related manatee 
losses and have delineated three relative risk areas throughout 
Florida. After examining manatee mortality data from 1974 through 2000, 
including five-year mortality increments and watercraft-related 
mortality trends, we have categorized these risk areas as high, medium 
and low (Table 1).

     Table 1.--High, Medium, and Low Risk Areas By County in Florida
------------------------------------------------------------------------
             Subpopulation                            County
------------------------------------------------------------------------
                             HIGH RISK AREA
------------------------------------------------------------------------
Atlantic...............................  Duval \1\
                                         Clay \1\
                                         St. Johns \1\
                                         Volusia \1\
                                         Brevard
                                         Indian River
                                         Martin
                                         Palm Beach
                                         Broward
                                         Miami-Dade
                                         Monroe \2\
Southwest..............................  Collier
                                         Lee
                                         Charlotte
                                         Sarasota
                                         Manatee
                                         Hillsborough
Northwest..............................  Citrus
------------------------------------------------------------------------
                            MEDIUM RISK AREA
------------------------------------------------------------------------
Upper St. Johns........................  St. Johns \1\
                                         Putnam
                                         Lake
                                         Seminole
                                         Volusia \1\
Atlantic...............................  Nassau
                                         Clay \1\
                                         Flagler
                                         St. Lucie
Southwest..............................  Glades
                                         Hendry
                                         Pinellas
Northwest..............................  Pasco
                                         Hernando
                                         Levy
                                         Dixie
                                         Taylor
                                         Wakulla
------------------------------------------------------------------------
                              LOW RISK AREA
------------------------------------------------------------------------
Atlantic...............................  Monroe \2\
                                         Okeechobee
Southwest..............................  DeSoto
Northwest..............................  Jefferson
                                         Franklin
                                         Gulf
                                         Bay
                                         Walton
                                         Okaloosa
                                         Santa Rosa
                                         Escambia
------------------------------------------------------------------------
\1\ 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.
\2\ 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.

    We defined high risk (= counties) 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.
    Our final interim strategy utilizes high, medium and low risk 
counties coupled with the Corps' revised manatee key and associated 
maps to identify areas where the Service believes there is adequate 
manatee protection. For all multi-slip projects in high and medium risk 
counties, we will evaluate the specific conditions in the area expected 
to be affected by the project, using a Reach-by-Reach analysis, in 
determining whether the project is likely to contribute to incidental 
take due to watercraft collisions. These maps identify areas or reaches 
that we believe have adequate or inadequate protection. These maps

[[Page 43894]]

have been developed by us utilizing the reach by reach analysis 
presented below. The maps are our current interpretation of the 
criteria used to make a determination on the individual reaches and 
will be reviewed and revised periodically. The current maps, and as 
these maps are revised, will be available at: http://verobeach.fws.gov-manatee-issues/interim-strategy.htmor may be obtained from our 
Jacksonville, Florida Field Office (telephone 904/232-2580) or our Vero 
Beach, Florida Field Office (telephone 561/562-3909).

Reach By Reach Analysis

    To analyze the effects of watercraft access projects on manatees, 
we reviewed the baseline conditions for each of the manatee 
subpopulations by county and by ``reach'' based on a combination of 
information available to us including the Corps' Reach Characterization 
Analysis Geographic Information System (GIS) database. We used counties 
as a basic geographic analysis area because many factors important to 
manatee protection are provided at the county level. Manatee Protection 
Plans are produced by counties, manatee speed zones are designated by 
the State with county participation or by counties on a county level, 
and county sheriff's departments provide enforcement within county 
boundaries. These factors make county-by-county and reach-by-reach 
review the most logical and manageable way to analyze data and provide 
recommended courses of action. This county-by-county and reach-by-reach 
review approach provides a more holistic evaluation of speed zones than 
a piecemeal project-by-project review.
    To evaluate the adequacy of existing manatee speed zones throughout 
Florida, we used information from the Reach Characterization Analysis 
combined with the most current information available regarding manatee 
use, manatee habitat, manatee mortality and harassment. The Corps 
compiled existing data relevant to the evaluation of the potential 
effects of watercraft access projects on manatees. The information 
contained in the Reach Characterization Analysis included manatee use 
data such as aerial surveys and radio telemetry; manatee habitat 
characteristics such as warmwater sites, seagrass distributions, and 
bathymetry; human use characteristics such as relative dock densities, 
boat densities, and navigation channels; and existing manatee 
protection measures (boating speed zones). Throughout Florida, the 
Corps defined 80 ``reaches'' based on manatee use, manatee habitat 
characteristics, and human use characteristics. The Corps compiled this 
information into its GIS database.
    In some areas, we feel that changes of the Corps reach boundaries 
would provide a better characterization of the effects of regulated 
activities on manatees, and our analysis reflects these 
recommendations. We view the Reach Characterization Analysis as a 
dynamic process, and will continue to recommend changes to Corps 
reaches based on new information regarding manatees, boating 
activities, and the interaction of manatees and boating that affect 
manatees. To ensure the use of the best scientific and commercial data 
available, we supplemented the Reach Characterization Analysis 
information with 2000 and 2001 manatee mortality data from the Florida 
Marine Research Institute, and other information such as information 
from the Service's Division of Law Enforcement regarding the adequacy 
of speed zone signage in certain areas.
    To reduce the likelihood of incidental take associated with any new 
multi-slip watercraft access projects, the Interim Strategy provides 
four prerequisites, that: (1) Adequate speed zones must exist in areas 
anticipated to have increased watercraft traffic as a result of the 
proposed development; (2) signage is adequate to ensure that boaters 
are aware of the existing speed zones; (3) enforcement in the vicinity 
of the proposed development is, or with project conservation measures 
will be, sufficient to prevent watercraft collisions with manatees; and 
(4) these measures be in place prior to implementation of the project.
    In reviewing the baseline, we looked at existing speed zones, 
levels of enforcement, manatee aggregation areas, warmwater refugia, 
freshwater sources, seagrass beds, and other biological factors to 
determine if speed zones or levels of enforcement were sufficient to 
minimize the risk of manatee mortality. We focused on manatee mortality 
because this is the only form of take for which quantitative data are 
available. We assume that the available information regarding 
watercraft-related manatee mortality is a reliable indicator of other 
forms of incidental take, including injury and harassment. In areas 
where speed zones are appropriately designated and signed, increased 
enforcement provided by the State's Law Enforcement Initiative and 
other law enforcement efforts would improve compliance with manatee 
speed zones, reducing risk of watercraft collisions with manatees. The 
decrease in manatee-watercraft collisions would result in a stable or 
decreasing trend in watercraft-related manatee mortality.
    Speed zones are designated by the Commission under Rule and 
published in the Florida Administrative Code (FAC). Types of zones 
designated include motorboat no entry zones (year-round), idle speed 
zones (year-round), idle speed zones (November 15 through April 30), 
slow speed zones (year-round), slow speed zones (November 15 through 
April 30), and maximum 25 mph/slow speed buffer zones (year-round). In 
addition, some speed zones include or specifically exclude navigational 
channels in the vicinity. In areas where manatee mortality has 
decreased or been stable since manatee speed zones were designated, 
signed, and enforced, we assumed that designation of manatee speed 
zones will protect manatees as required in prerequisite 1 above.
    Speed zone enforcement cannot be implemented in an area unless the 
zones are well marked and the regulatory codes authorizing the zones 
are also on the signs (FAC 2001). The Florida Department of 
Environmental Protection (FDEP) and Florida Inland Navigational 
District (FIND) or West Coast Inland Navigation District (WCIND) 
provide installation and maintenance of speed zone signs. Manatee speed 
zone areas are inspected annually or after storm events by FIND or 
WCIND to ensure that adequate marking is present, and that no hazards 
to navigation exist. In areas where FIND, WCIND, the State, and/or 
counties regularly monitor and replace signs, we assumed that manatee 
speed zone signage will protect manatees as required in prerequisite 2 
above.
    Data from the Commission's Division of Law Enforcement were used to 
assess a per-slip level of current law enforcement to boater ratio in 
waters within Florida in the Interim Strategy. The estimated ratio of 
law enforcement officers to registered watercraft in Florida is one 
enforcement officer per 1,356 watercraft. Dividing the total number of 
annual work hours (2,080) by registered watercraft (1,356) yields a 
current average of 1.50 hours of enforcement per registered watercraft 
per year. This figure represents an index of the level of law 
enforcement potentially available throughout the State and does not 
reflect the total amount of law enforcement at a particular location. 
Enforcement of posted speed zones may be provided by the Service, the 
State, county sheriff's officers, city or other municipalities, and 
other entities with on-the-water enforcement capabilities such as the 
National Marine Sanctuaries Squad. The Coast Guard and the Service also 
provide speed zone enforcement

[[Page 43895]]

through special task force events. We calculated the amount of law 
enforcement provided by the State's Law Enforcement Initiative and the 
Corps' estimated number of slips likely to be permitted by county to 
ensure that an amount of enforcement per slip currently provided by all 
law enforcement efforts is consistent with the Interim Strategy. The 
State's Initiative results in an up-front, permanent commitment of 
officers; administration is simplified and carried out by the State. 
Based on our analysis, the State's Initiative will cover approximately 
370,000 watercraft access projects (= boat slips) over 32 coastal 
counties where manatees occur for the next ten years. On average, the 
construction of approximately 5,000 slips is authorized annually in 
Florida's waters. The State's Initiative provides for a significantly 
higher level of on-the-water manatee protection and law enforcement 
than what would be provided under our draft interim strategy. In Corps 
reaches where the State's law enforcement initiative and other on-the-
water enforcement exceed the per slip enforcement in the Interim 
Strategy, we assumed speed zone law enforcement will protect manatees 
as required in prerequisites 3 and 4 above.

Protection Areas

    We reviewed all of the above information to evaluate speed zone 
designation, signage, and enforcement currently in place for the 
various reaches defined by the Corps. During our review, we located 
areas with adequate and inadequate protection. Areas where current 
speed zones are either non-existent or inappropriately designated to 
minimize risk of manatee-watercraft collisions as areas with increasing 
and/or ongoing mortality. Additional enforcement in such areas would 
not decrease take to a ``not likely to occur'' level and these were 
identified as ``areas with inadequate protection.'' Implementation of 
additional speed zones, signage, and/or enforcement were determined to 
be necessary if:
    1. Manatee mortality data indicate on-going recovery of watercraft-
related mortality manatee carcasses within the reach within the last 10 
years, particularly in years since speed zones and signs have been in 
place with enforcement;
    2. Speed zones, signage, and/or enforcement levels are not provided 
to assume manatees are protected as described above; and/or
    3. Available information indicate ongoing mortality and harassment 
of manatees at warmwater sites.
    ``Areas with inadequate protection'' were examined per the above 
criteria, to determine whether the deficiencies affected entire reaches 
or portion of reaches in question. For example, some areas that 
currently lack manatee speed zones, signage, and enforcement affect 
only a portion of the Corps reach and are not located along primary 
watercraft travel corridors. In such instances, we concluded that 
increases in boat traffic within certain areas would adversely affect 
manatees and identified that portion of the reach as an ``area with 
inadequate protection.''
    Conversely, other areas currently lack adequate manatee speed 
zones, signage, and enforcement over entire reaches, and/or are located 
along primary watercraft travel corridors. In these areas, we 
reasonably assumed a high likelihood that increases in watercraft 
access anywhere within the reach or reaches would increase boat 
traffic, increasing risks to manatees, and designated the reach or 
reaches as an ``area with inadequate protection.''

Medium and High Risk Counties

    We will continue to review new multi-slip watercraft access 
projects in medium and high risk counties. Additional watercraft access 
projects in ``areas with inadequate protection'' may result in take of 
manatees and cannot be consistent with the final Interim Strategy. We 
believe that these projects would require separate review and potential 
authorization for incidental take under the MMPA. Should appropriate 
speed zones be created or modified to provide additional protection for 
manatees, the designation of an reach or portion of a reach as an 
``area with inadequate protection'' could be modified to reflect a 
change in the baseline.
    In ``Areas with Inadequate Protection'' designated based on a lack 
of one of the four prerequisites, consultation may be initiated between 
the Corps and us if inadequate speed zones, signage, or enforcement are 
corrected. If consultation is initiated, we will evaluate, using a 
Reach-by-Reach analysis already conducted by us as well as any new 
information that becomes available during project review, the specific 
conditions of an area expected to be affected by the project to 
determine whether the project is likely to result in incidental take. 
The four basic prerequisites necessary to ensure that incidental take 
is unlikely to occur are: (1) Adequate speed zones; (2) adequate 
signage; (3) sufficient speed zone enforcement to prevent watercraft 
collisions from occurring as a result of the project; and (4) these 
measures must be in place prior to project implementation. If these 
prerequisites are met, we may find that a new facility would be 
unlikely to result in the incidental take of manatees. If the four 
prerequisites cannot be met, we cannot reasonably conclude that the 
project is unlikely to result in incidental take.
    In ``Areas with Inadequate Protection'' designated because the 
prerequisites will not reduce incidental take to an unlikely to occur 
level, we cannot provide an incidental take statement for a facility 
under ESA until and unless incidental take is authorized under MMPA 
unless we determine through the review process that conditions have 
changed. A special regulation promulgated under MMPA could authorize 
incidental take that has a negligible effect on reproduction. We would 
then consider this information to determine if incidental take could be 
authorized under ESA in areas currently designated because the four 
prerequisites will not reduce incidental take to an unlikely to occur 
level. However, it is the Corps' responsibility to decide whether or 
not to issue a permit.

Low Risk Counties

    Since projects in low risk counties have no history of any 
watercraft-related manatee mortality, we find that proposed projects in 
these areas are unlikely to contribute to the incidental take of 
manatees through watercraft collisions. As new information becomes 
available, we will continue to assess whether any proposed project in 
manatee habitat is likely to result in incidental take through 
watercraft collisions or have any adverse effects on the species.

Single Family Docks

    Single family docks (3 slips or less) were considered in the draft 
interim guidance, after contribution for increased law enforcement to 
reduce incidental take associated with watercraft access. In the final 
interim strategy, they will be considered without a contribution, due 
to the overall increase in law enforcement measures implemented by the 
State's Initiative. We believe that this increased law enforcement 
effort, will allow these single family projects, to go forward 
provided, we continue to monitor their cumulative effects on the 
manatee in all reaches using best available science and the commitment 
to make future changes to this process if necessary. To facilitate this 
review process, we will receive at least quarterly reports on permits 
issued for watercraft access projects, including single family docks.

[[Page 43896]]

    We continue to encourage the State of Florida, the Corps, and other 
Federal, tribal, local, and private entities to seek incidental take 
authorization for their watercraft-related activities that are likely 
to cause the incidental take of manatees, as defined under the ESA and 
MMPA.

Monitoring Implementation and Effectiveness of the State's 
Initiative

    The effectiveness of the State's law enforcement efforts will be 
evaluated on a continuing basis by comparing watercraft-related manatee 
mortality data in areas to previous rates of mortality. We will pay 
particular attention to data from areas where law enforcement has 
increased. 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 coinciding 
with our review of the State's publication of annual manatee mortality 
data. If we and the Commission determine at any time that these 
enforcement efforts are not meeting their intended objectives, then the 
agencies will coordinate their efforts 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 enforcement.

Author

    The primary author of this document is Kalani Cairns (see ADDRESSES 
section).

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: August 9, 2001.
Thomas M. Riley,
Acting Regional Director.
[FR Doc. 01-21069 Filed 8-16-01; 2:31 pm]
BILLING CODE 4310-55-P