[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 72210-72240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27748]



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Part V





Department of Commerce





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 National Oceanic and Atmospheric Administration



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50 CFR Parts 223 and 226



Endangered and Threatened Species; Critical Habitat for Threatened 
Elkhorn and Staghorn Corals; Final Rule

  Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No. 070801431-81370-02]
RIN 0648-AV35


Endangered and Threatened Species; Critical Habitat for 
Threatened Elkhorn and Staghorn Corals

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

ACTION: Final rule.

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SUMMARY:  We, the National Marine Fisheries Service (NMFS), issue a 
final rule designating critical habitat for elkhorn (Acropora palmata) 
and staghorn (A. cervicornis) corals, which we listed as threatened 
under the Endangered Species Act of 1973, as amended (ESA), on May 9, 
2006. Four specific areas are designated: the Florida area, which 
comprises approximately 1,329 square miles (3,442 sq km) of marine 
habitat; the Puerto Rico area, which comprises approximately 1,383 
square miles (3,582 sq km) of marine habitat; the St. John/St. Thomas 
area, which comprises approximately 121 square miles (313 sq km) of 
marine habitat; and the St. Croix area, which comprises approximately 
126 square miles (326 sq km) of marine habitat. We are excluding one 
military site, comprising approximately 5.5 square miles (14.3 sq km), 
because of national security impacts.

DATES:  This rule becomes effective December 26, 2008.

ADDRESSES: The final rule, maps, Final Regulatory Flexibility Analysis, 
and 4(b)(2) Report used in preparation of this final rule, as well as 
comments and information received, are available on the NMFS Southeast 
Regional website at http://www.sero.noaa.gov/.

FOR FURTHER INFORMATION CONTACT:  Jennifer Moore or Sarah Heberling, 
NMFS, at the address above or at 727-824-5312; or Marta Nammack, NMFS, 
at 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On May 9, 2006, we listed elkhorn and staghorn corals as threatened 
under the ESA (71 FR 26852; May 9, 2006). At the time of listing, we 
also announced our intention to propose critical habitat for elkhorn 
and staghorn corals. Critical habitat for both elkhorn and staghorn 
corals was proposed on February 6, 2008 (73 FR 6895); a correction 
notice regarding one of the maps was published on March 6, 2008 (73 FR 
12068). We solicited comments from the public on all aspects of the 
proposed rule. An initial regulatory flexibility analysis (IRFA) and a 
draft impacts report prepared pursuant to section 4(b)(2) of the ESA 
were available for public review and comment along with the proposed 
rule. These documents have been finalized in support of the final 
critical habitat designation.
    The proposed rule identified the key conservation objective for the 
corals as facilitating increased incidence of successful sexual and 
asexual reproduction. We determined the feature essential to the 
conservation of the species (also known as essential feature), which 
supports the identified conservation objective, was substrate of 
suitable quality and availability, in water depths from the mean high 
water (MHW) line to 30 m, to support successful larval settlement, 
recruitment, and reattachment of fragments. For purposes of this 
definition, ``substrate of suitable quality and availability'' meant 
consolidated hardbottom or dead coral skeleton that is free from fleshy 
macroalgae cover and sediment cover. We proposed to designate four 
specific areas that contain the essential feature: (1) the Florida 
area, which comprised approximately 3,301 square miles (8,550 sq km) of 
marine habitat; the Puerto Rico area, which comprised approximately 
1,383 square miles (3,582 sq km) of marine habitat; the St. John/St. 
Thomas area, which comprised approximately 121 square miles (313 sq km) 
of marine habitat; and the St. Croix area, which comprised 
approximately 126 square miles (326 sq km) of marine habitat. We also 
proposed to exclude one military site, comprising approximately 47 
square miles (123 sq km), because of national security impacts.

Elkhorn and Staghorn Coral Natural History

    The following discussion of the life history and reproductive 
biology of threatened corals is based on the best scientific data 
available, including the Atlantic Acropora Status Review Report 
(Acropora Biological Review Team, 2005), and additional information, 
particularly concerning the genetics of these corals.
    Acropora spp. are widely distributed throughout the Caribbean (U.S. 
- Florida, Puerto Rico, U.S. Virgin Islands (U.S.V.I.), Navassa; and 
Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin 
Islands, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, 
Grenada, Guadeloupe, Haiti, Honduras, Jamaica, Martinique, Mexico, 
Netherlands Antilles, Nicaragua, Panama, St. Kitts and Nevis, St. 
Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and 
Venezuela). In general, elkhorn and staghorn corals have the same 
geographic distribution, with a few exceptions. The maximum northern 
extent (Palm Beach County, Florida) of staghorn coral occurrence is 
farther north than that of elkhorn coral (Broward County, Florida). 
Staghorn coral commonly grows in more protected, deeper water ranging 
from 5 to 20 m in depth and has been found in rare instances to 60 m. 
Elkhorn coral commonly grows in turbulent shallow water on the seaward 
face of reefs in water ranging from 1 to 5 m in depth but has been 
found to 30 m depth.
    Elkhorn and staghorn corals were once the most abundant and most 
important species on Caribbean coral reefs in terms of accretion of 
reef structure. Relative to other corals, elkhorn and staghorn corals 
have high growth rates that have allowed reef growth to keep pace with 
past changes in sea level. Both species exhibit branching morphologies 
that provide important habitat for other reef organisms. Environmental 
influences (e.g., wave action, currents) result in morphological 
variation (e.g., length and shape of branches) in both species.
    Staghorn coral is characterized by staghorn antler-like colonies 
with cylindrical, straight, or slightly curved branches. The diameter 
of staghorn coral branches ranges from 1 to 4 cm, and tissue color 
ranges from golden yellow to medium brown. The growing tips of staghorn 
coral tend to be lighter or lack color. The linear growth rate for 
staghorn coral has been reported to range from 3 to 11.5 cm/year. 
Today, staghorn coral colonies typically exist as isolated branches and 
small thickets, 0.5 to 1 m across in size, unlike the vast fields 
(thickets) of staghorn found commonly during the 1970s.
    Elkhorn coral is the larger species of Acropora found in the 
Atlantic. Colonies are flattened to near round with frond-like 
branches. Branches are up to 50 cm across and range in thickness from 2 
to 10 cm, tapering towards the branch terminal. Like staghorn coral, 
branches are white near the growing tip, and brown to tan away from the 
growing area. The linear growth rate for elkhorn coral is reported to 
range from 4 to 11 cm/year. Individual colonies can grow to at least 2 
m in height and 4 m in diameter.
    Elkhorn and staghorn corals require relatively clear, well-
circulated water

[[Page 72211]]

and are almost entirely dependent upon sunlight for nourishment through 
the photosynthetic products of their symbiotic zooxanthellae. Unlike 
other coral species, neither acroporid species is likely to compensate 
for long-term reductions in water clarity with alternate food sources, 
such as zooplankton and suspended particulate matter. Typical water 
temperatures in which Acropora spp. occur range from 21[deg] to 29[deg] 
C, with the species being able to tolerate temperatures higher than the 
seasonal maximum for a brief period of time (days to weeks, depending 
on the magnitude of the temperature elevation). The species' response 
to temperature perturbations is dependent on the duration and intensity 
of the event. Both acroporids are susceptible to bleaching (loss of 
symbiotic algae) under adverse environmental conditions.
    Acropora spp. reproduce both sexually and asexually. Elkhorn and 
staghorn corals do not differ substantially in their sexual 
reproductive biology. Both species are broadcast spawners: male and 
female gametes are released into the water column where fertilization 
takes place. Additionally, both species are simultaneous 
hermaphrodites, meaning that a given colony will contain both male and 
female reproductive parts during the spawning season; however, an 
individual colony or clone will not produce viable offspring. The 
spawning season for elkhorn and staghorn corals is relatively short, 
with gametes released on only a few nights during July, August, or 
September. In most populations, spawning is synchronous after the full 
moon during any of these 3 months. Larger colonies of elkhorn and 
staghorn corals have much higher fecundity rates (Soong and Lang, 
1992).
    In elkhorn and staghorn corals, fertilization and development is 
exclusively external. Embryonic development culminates with the 
development of planktonic larvae called planulae. Little is known 
concerning the settlement patterns of planula of elkhorn and staghorn 
corals. In general, upon proper stimulation, coral larvae, whether 
released from parental colonies or developed in the water column 
external to the parental colonies (like Acropora spp.), settle and 
metamorphose on appropriate substrates. Like most corals, elkhorn and 
staghorn corals require hard, consolidated substrate, including 
attached, dead coral skeleton, for their larvae to settle. Unlike most 
other coral larvae, elkhorn (and presumably staghorn) planulae appear 
to prefer settling on upper, exposed surfaces, rather than in dark, 
cryptic ones, at least in a laboratory setting (Szmant and Miller, 
2005).
    Coral planula larvae experience considerable mortality (90 percent 
or more) from predation or other factors prior to settlement and 
metamorphosis (Goreau et al., 1981). Because newly settled corals 
barely protrude above the substrate, juveniles need to reach a certain 
size to reduce damage or mortality from impacts such as grazing, 
sediment burial, and algal overgrowth. It is at this size 
(approximately 1 cm in diameter) and this age (approximately 1 year) 
that a settled individual can be considered to have recruited into the 
population. Recent studies examining early survivorship indicated that 
lab cultured elkhorn coral settled onto experimental limestone plates 
and placed in the field had substantially higher survivorship than 
another spawning coral species, Montastraea faveolata, and similar 
survivorship to brooding coral species (species that retain developing 
larvae within the parent polyp until an advanced stage) over the first 
9 months following settlement (Szmant and Miller, 2005). This pattern 
corresponds to the size of planulae; elkhorn coral eggs and larvae are 
much larger than those of Montastraea spp. Overall, older recruits 
(i.e., those that survive to a size where they are visible to the human 
eye, probably 1 to 2 years post-settlement) of Acropora spp. appear to 
have similar growth and post-settlement mortality rates observed in 
other coral species.
    Studies of Acropora spp. sexual recruitment from across the 
Caribbean reveal two problematic patterns: (1) low juvenile densities 
relative to other coral species; and (2) low juvenile densities 
relative to the commonness of adults (Porter, 1987). This suggests that 
the composition of the adult population is based upon variable 
recruitment. To date, the settlement rates for Acropora spp. have not 
been quantified.
    Few data on the genetic population structure of elkhorn and 
staghorn corals exist; however, due to recent advances in technology, 
the genetic population structure of the current, depleted populations 
are beginning to be characterized. Baums et al. (2005) examined the 
genetic exchange in elkhorn coral by sampling and genotyping colonies 
from eleven locations throughout its geographic range using 
microsatellite markers. Results indicate that elkhorn populations in 
the eastern Caribbean (St. Vincent and the Grenadines, U.S.V.I., 
Curacao, and Bonaire) have experienced little or no genetic exchange 
with populations in the western Caribbean (Bahamas, Florida, Mexico, 
Panama, Navassa, and Mona Island). Mainland Puerto Rico is an area of 
mixing where elkhorn populations show genetic contribution from both 
regions, though it is more closely connected with the western 
Caribbean. Within these regions, the degree of larval exchange appears 
to be asymmetrical, with some locations being entirely self-recruiting 
and some receiving immigrants from other locations within their region.
    Vollmer and Palumbi (2007) examined multilocus sequence data from 
276 colonies of staghorn coral spread across 22 populations from 9 
regions in the Caribbean, Florida, and the Bahamas. Their data were 
consistent with the Western-Eastern Caribbean subdivision observed in 
elkhorn coral populations by Baums et al. (2005). Additionally, the 
data indicated that regional populations of staghorn separated by 
greater than 500 km are genetically differentiated and that gene flow 
across the greater Caribbean is low in staghorn coral. This is 
consistent with studies conducted on other Caribbean corals showing 
that gene flow is restricted at spatial scales over 500 km (Fukami et 
al., 2004; Baums et al., 2005; Brazeau et al., 2005). Furthermore, 
fine-scale genetic differences were observed among reefs separated by 
as little as 2 km, suggesting that gene flow in staghorn corals may be 
limited over much smaller spatial scales (Vollmer and Palumbi, 2007).
    Both acroporid population genetics studies suggest that no 
population is more or less significant to the status of the species. 
Staghorn coral populations on one reef exhibit limited ability to seed 
another population separated by large distances. Elkhorn coral 
populations are genetically related over larger geographic distances; 
however, because sexual recruitment levels are extremely low, re-
seeding potential over long distances is also minimal. This regional 
population structure suggests that conservation should be implemented 
at local to regional scales because relying on long-distance larval 
dispersal as a means of recovery may be unreliable and infeasible. 
Therefore, protecting source populations, in relatively close proximity 
to each other (<500 km), is likely the more effective conservation 
alternative (Vollmer and Palumbi, 2007).
    Elkhorn and staghorn corals, like most coral species, also 
reproduce asexually. Asexual reproduction involves fragmentation, 
wherein colony pieces or fragments break from a larger colony and re-
attach to consolidated, hard substrate to form a new colony.

[[Page 72212]]

Reattachment occurs when: (1) live coral tissue on the fragment 
overgrows suitable substrate where it touches after falling; or (2) 
encrusting organisms settle on the dead basal areas of the fragment and 
cement it to the adjacent substrate (Tunnicliffe, 1981). Fragmentation 
results in multiple colonies (ramets) that are genetically identical, 
while sexual reproduction results in the creation of new genotypes 
(genets). Fragmentation is the most common means of forming new elkhorn 
and staghorn coral colonies in most populations and plays a major role 
in maintaining local populations when sexual recruitment is limited. 
The larger size of fragments compared to planulae may result in higher 
survivorship after recruitment (Jackson, 1977, as cited by Lirman, 
2000). Also, unlike sexual reproduction, which is restricted seasonally 
for elkhorn coral (Szmant, 1986, as cited by Lirman, 2000), 
fragmentation can take place year-round.

Summary of Comments and Responses

    We requested comments on the proposed rule to designate critical 
habitat for elkhorn and staghorn corals (73 FR 6895; February 6, 2008). 
To facilitate public participation, the proposed rule was made 
available on our regional web page and comments were accepted via 
standard mail, facsimile, and through the Federal eRulemaking portal. 
In addition to the proposed rule, the draft impacts report supporting 
NMFS' conclusions under Section 4(b)(2) of the ESA was posted. We 
obtained independent peer review of both the scientific information and 
of the Draft 4(b)(2) Report (NMFS, 2007) that supported the proposed 
rule, and we incorporated the peer review comments prior to 
dissemination of the proposed rule. Four public hearings were held on 
the following dates and in the following locations:
    1. Tuesday, March 4, 2008, Dania Beach, Florida.
    2. Wednesday, March 5, 2008, Marathon, Florida.
    3. Tuesday, March 11, 2008, St. Thomas, U.S.V.I./Simulcast Location 
in Kingshill, St. Croix, U.S.V.I.
    4. Wednesday, March 12, 2008, Rio Piedras, Puerto Rico.
    We have considered all public comments, and those that are germane 
to the proposed designation are addressed in the following summary. We 
have assigned comments to major issue categories and, where 
appropriate, have combined similar comments.

Comments on the Conservation Goal of the Designation

    Comment 1: One commenter suggested that the conservation goal of 
the critical habitat designation should include survival to juvenile 
sizes.
    Response: We stated in the proposed designation that the essential 
feature supports successful larval settlement, recruitment, and 
reattachment of fragments. The species' larvae and newly settled spat 
are microscopic. It takes approximately 1 year from the time of 
settlement for the recruit to become visible to the unaided human eye. 
It is at this point that we can conclude that the offspring has 
recruited into the population. Therefore, the habitat must be suitable 
to allow for the offspring to reach this size. It is unclear what the 
commenter specifically considers as a juvenile, thus we clarify that 
the conservation goal does include survival to recruitment.
    Comment 2: One commenter suggested that we do not know what caused 
the decline of the species; therefore, we cannot identify the essential 
feature for elkhorn and staghorn corals. Another commenter questioned 
the utility of critical habitat, given the seemingly unresolved major 
threats to the species.
    Response: The status review, listing process, and supporting 
literature have identified several causes of the decline of the 
species. We determined that disease, temperature-induced bleaching, and 
hurricanes are the major threats to the species. The ESA and our 
regulations for designating critical habitat (50 CFR 424) specify that 
we focus on the essential physical or biological features to support 
the species' conservation. We determined that the identified essential 
feature of suitable settlement and reattachment substrate will support 
the key conservation objective for both species of facilitating 
increased incidence of successful sexual and asexual reproduction.
    Comment 3: One commenter said that, although we identified the 
conservation goal of critical habitat to be the enhancement of sexual 
and asexual recruitment, our rule focuses on sexual recruitment.
    Response: We determined, based on the species' natural history and 
the threats facing them, that facilitating increased incidence of 
successful reproduction, both sexual and asexual, is the key objective 
to the conservation of these species. We stated in the proposed rule 
that the feature supporting this objective was `` substrate of suitable 
quality and availability to support successful larval settlement, 
recruitment, and reattachment of fragments.'' We realize that the 
placement of the conjunction ``and'' may have misled the reader that 
the conservation objective did not support the recruitment of 
fragments. We are revising the definition of the feature that supports 
this objective to clarify this point. The feature is now defined as 
substrate of suitable quality and availability to support successful 
larval settlement and recruitment and the reattachment and recruitment 
of fragments. Sexual recruits and asexual recruits require the same 
feature to allow for settlement or reattachment, respectively. 
Therefore, the designation does not focus on sexual recruitment alone; 
rather, we state that increasing the incidence of both modes of 
reproduction is essential to the conservation of the species.

Comments on the Definition of the Essential Feature

    Comment 4: One commenter stated we failed to appropriately define 
``consolidated hardbottom'' in our definition of the essential feature. 
A second commenter stated that we should not use the term hardbottom, 
rather the more appropriate term would be hard substrate.
    Response: We acknowledge the need to define these terms precisely 
as there are several definitions of the term hardbottom. The 
established definition of hardbottom for the NOAA Coral Reef 
Conservation Program is substrate formed by the deposition of calcium 
carbonate by reef building corals and other organisms, or existing as 
bedrock or volcanic rock usually of minimal relief (http://www.coris.noaa.gov/glossary). This definition is more restrictive than 
what we intended for this designation; so we are revising the term 
``hardbottom'' to ``hard substrate,'' as suggested by the second 
commenter, to be inclusive of all the suitable substrate within the 
designation that is essential to the conservation of the species. We 
are retaining the term ``consolidated'' in the definition of the 
essential feature because the hard substrate must be stable to support 
the conservation objective. A disaggregated hard substrate, such as 
loose rubble, which can become mobilized and abrade the recruits, would 
not be of suitable quality.
    Comment 5: One commenter stated we needed to clarify that absence 
of macroalgal cover in our definition of ``suitable substrate'' does 
not mean absence of crustose coralline algae (CCA), but refers to 
macroalgae and turf algae.

[[Page 72213]]

    Response: The commenter is correct: we are not referring to CCA in 
this instance. Further, as we discussed in the proposed rule, studies 
have shown that larvae tend to prefer substrate covered with CCA for 
settlement. The commenter also correctly pointed out that not only 
fleshy macroalgae, but also turf algae, prevent the settlement of 
larvae and the reattachment of fragments. Therefore, we are adding the 
word ``turf'' to the definition of the essential feature.
    Comment 6: Several commenters stated that no reefs exist without 
macroalgae and sediment; thus no reef would meet the identified 
definition of critical habitat. One commenter added that conditions 
change over time and we should add the word ``persistent'' before 
``fleshy macroalgae''.
    Response: Coral reef ecosystems are a mosaic of several different 
substrate types, including consolidated hard substrate, macroalgae, 
unconsolidated sediment, and seagrass. Although few reefs exist that 
are wholly lacking in some macroalgae or sediment cover, at a scale 
appropriate to a coral larva or coral fragment, a reef must contain 
available hard substrate for the settlement, attachment, and 
recruitment. Without the available substrate, the area would cease to 
be a coral reef because reef accretion would not be possible. The 
identified essential feature is contained within the specific areas 
identified as critical habitat. It is not necessary for the entire area 
or even entire reef to be lacking in macroalgae to designate it as 
critical habitat.
    Regarding the persistence of the essential feature, we acknowledge 
that conditions within the reef ecosystem may change over time. 
However, regardless of the persistence of the macroalgae, if the 
substrate is covered with macroalgae at the time of potential 
settlement, reattachment, and recruitment, the substrate would not be 
of suitable availability to support the conservation objective. Thus we 
are not revising the definition of the essential feature to include the 
word ``persistent.
    Comment 7: One commenter requested reef covered with macroalgae not 
be exempted from critical habitat.
    Response: Reefs that contain macroalgae are not exempted from 
critical habitat. While neither coral larvae nor coral fragments can 
attach to substrate that is covered with macroalgae, and substrate 
covered with macroalgae does not provide substrate of suitable 
availability to support the conservation of the species, when these 
areas are part of the coral reef ecosystem meeting the definition of 
critical habitat (which as explained above consists of a mosaic of 
several different substrate types, including consolidated hard 
substrate, macroalgae, unconsolidated sediment, and seagrass), they are 
not exempted from the designation.
    Comment 8: One commenter stated that parrotfish, other herbivorous 
fishes, and long-spined sea urchin are biological features essential to 
the conservation of listed corals (i.e., essential features) because 
these herbivores reduce the abundance of macroalgae through grazing.
    Response: In the proposed rule, we acknowledged that the shift in 
benthic community structure from the dominance of stony corals to 
fleshy algae on Caribbean coral reefs is generally attributed to the 
greater persistence of fleshy macroalgae under reduced grazing regimes 
due to human overexploitation of herbivorous fishes (Hughes, 1994) and 
the regional mass mortality of the herbivorous long-spined sea urchin 
in 1983-84. However, the herbivores themselves are not the essential 
feature for elkhorn and staghorn corals. Rather, herbivores mediate the 
availability of the essential feature, similar to the effect nutrients 
have on the growth of macroalgae.
    Comment 9: One commenter suggested ``consolidated hardbottom or 
dead coral skeletons exposed to sunlight, free from sediment, not 
preempted by other attached organisms, and within 30 m of the water 
surface'' as an alternate way to define the essential feature to make 
the rule more easily understood.
    Response: We believe that our definition encompasses the concepts 
in the suggested alternative definition. We do not explicitly state 
that the substrate must be exposed to sunlight, because only artificial 
structures (e.g., docks or bridges) would preempt the transmission of 
sunlight to the substrate, given the shallow depths of the areas 
included in the designation. As discussed in the response to Comment 
13, existing federally authorized or permitted man-made structures do 
not provide the essential feature. Thus, all natural consolidated hard 
substrate in depths less than 30 m are likely exposed to some sunlight. 
We define the essential feature as being free from fleshy or turf 
macroalgae cover, rather than all attached organisms because algae in 
excessive abundances preempts larva and fragments from attachment and 
recruitment. No other species is known to be susceptible to 
proliferation that results in the preemption of substrate. Other reef 
organisms are naturally occurring and do not necessarily interfere with 
settlement, recruitment, or reattachment of elkhorn and staghorn 
corals. Therefore, we believe our definition is sufficient to describe 
the essential feature for elkhorn and staghorn corals' conservation.
    Comment 10: Two commenters requested the essential feature also 
include any habitat that could be recovered or rehabilitated.
    Response: ESA Section 4(a)(3)(i) defines critical habitat, in part, 
as occupied areas that contain features essential to a species' 
conservation. We do not have the authority to designate areas where 
features may exist in the future once habitat is recovered or 
rehabilitated.
    Comment 11: Several commenters stated that the proposed designation 
fails to account for essential features other than suitable substrate 
and specifically suggested that we add ``suitable water quality and 
temperature'' as essential features. Some of these commenters pointed 
to statements in the Status Review for the two corals that noted these 
species' need for ``relatively clear, well-circulated water,'' 
``sunlight for nourishment,'' ``optimal water temperature,'' and ``near 
oceanic salinities.'' Some of the commenters went on to state that the 
combined stresses of warmer temperatures, rising sea levels, and ocean 
acidification should be considered as part of the corals' need for good 
water quality in the critical habitat designation.
    Response: We stated in the Status Review that the species' general 
environmental requirements are those summarized by the commenter. As 
stated in the proposed critical habitat rule, other than the substrate 
feature, we determined that no other facet of the corals' environment 
is appropriate to include as a basis for the critical habitat 
designation. Rather, we determined that water temperature and aspects 
of water quality are more appropriately viewed as sources of impacts or 
stressors that can harm the corals directly. For example, the corals 
can survive a range of water temperatures, and they exhibit stress at 
temperatures above and below this range. Similarly, corals exist and 
function within a range of oceanic acidity levels; if the water becomes 
too acidic or too alkaline, conditions are unsuitable for secretion of 
an aragonitic skeleton. However, for elkhorn and staghorn corals, we 
cannot identify any specific values, ranges, or thresholds for these or 
other water quality parameters that make them essential to the 
conservation of these corals. Consultations on whether a proposed 
action may affect ``suitable water quality or temperature'' would 
necessarily be limited to determining whether the

[[Page 72214]]

activity would cause harm to the corals, and only provides for analysis 
under the jeopardy prong. We therefore did not adopt the suggestion to 
include ``suitable water quality and temperature'' as essential 
features. Finally, we stated in the proposed rule that some 
environmental features are subsumed within the definition of the 
substrate essential feature. In this final rule, we define ``substrate 
of suitable quality and availability'' as ``consolidated hard substrate 
or dead coral skeleton that is free from fleshy or turf macroalgae 
cover and sediment cover.'' Substrate free from macroalgae cover and 
sediment cover would encompass water quality sufficiently free of 
nutrients and sediments. Therefore, Federal activities that impact 
water quality by increasing nutrients or sediments may affect the 
essential substrate feature, and would require ESA section 7 
consultation.
    Comment 12: One commenter stated that, in identifying the example 
list of existing man-made structures that do not provide the essential 
feature, the proposed rule lacked clarity in its description of 
maintained channels. The commenter requested that we provide an 
adequate description of what is considered to be a maintained channel 
(e.g., would it include channel floor, channel walls and any authorized 
structures associated with the channel like jetties and groins?).
    Response: In identifying existing man-made structures that do not 
provide the essential feature essential to the corals' conservation, 
our intention was to inform the public that Federal actions, or the 
effects thereof, limited to these areas would not trigger section 7 
consultation under the ESA, unless they may affect the species and/or 
the essential feature in adjacent critical habitat. In the preamble of 
this final rule, we are revising the language describing the structures 
to more clearly reflect our intention (see Specific Areas Within the 
Geographical Area Occupied by the Species). The statement referring to 
these structures has been revised to: ``All existing (meaning 
constructed at the time of this critical habitat designation) Federally 
authorized or permitted man-made structures such as aids-to-navigation 
(ATONs), artificial reefs, boat ramps, docks, pilings, maintained 
channels, or marinas do not provide the essential feature that is 
essential to the species' conservation.'' To further inform the public, 
we are specifically not including as part of the critical habitat all 
existing federally authorized navigation channels and harbors because 
they do not provide the essential feature.
    Comment 13: One commenter requested that we add regulatory language 
to the critical habitat designation to specifically list those natural 
and artificial features that do not provide the essential feature.
    Response: In the regulatory text, we define the essential feature 
for elkhorn and staghorn corals as substrate of suitable quality and 
availability to support larval settlement and recruitment, and 
reattachment and recruitment of asexual fragments. ``Substrate of 
suitable quality and availability'' is defined as natural consolidated 
hard substrate or dead coral skeleton that is free from fleshy or turf 
macroalgae cover and sediment cover. We believe this definition is 
precise enough that natural and artificial features that do not 
constitute the essential feature are plainly discernable. This type of 
information is included in the preamble to this final rule to provide 
context and explanation of the features that do and do not provide the 
essential feature, but is not intended to be exhaustive, as that would 
not be practicable.

Comments on the Data Supporting the Designation

    Comment 14: Two commenters submitted data containing the locations 
of occurrences of the species in Puerto Rico and the U.S.V.I.
    Response: We appreciate the additional data and have referenced it 
in the preamble of the designation in the appropriate section. However, 
the data do not change the geographical range occupied by the species. 
Further, the data do not change the designation of the critical habitat 
areas around Puerto Rico and the U.S.V.I.
    Comment 15: Two commenters stated we should closely scrutinize the 
quality of data giving rise to the geographic extent of occupied areas. 
The commenters were specifically interested in the data collection 
methodologies as well as the number and location of elkhorn or staghorn 
coral documented in the waters north of Boca Raton.
    Response: The data that we used to identify the occupied area of 
the species has come from various sources, including literature, 
researchers, resource agencies, and local divers. Those data submitted 
by local divers have all included photos of the species and a latitude 
and longitude of the location where the species was found. We are 
confident that those who have submitted data are proficient enough in 
species identification, as evidenced by the photos, and use of a 
geographic positioning system. Further, the data from the northernmost 
locations of the species have been submitted by a county natural 
resource agency employee and an environmental consultant. Though there 
are few data from the northernmost portion of the species' ranges, this 
is likely due to the relatively recent expansion of reef research into 
this geographic area. We believe the quality of the data that we have 
used to identify the area occupied by the species is the best available 
and sufficient for the purposes of designation.
    Comment 16: One commenter questioned the potential errors in 
geographical information system (GIS) data developed using aerial 
photos from a one-time snapshot at an acre pixel scale. The commenter 
also questioned how we will address presence/absence of the essential 
feature when it comes time for a consultation.
    Response: We fully acknowledge that the GIS data may be imperfect 
due to the age and methods of collection, but it is the best available. 
We relied on the data to identify discrete areas that contain the 
essential feature interspersed among the other natural features of the 
coral reef ecosystem, including seagrass, macroalgae, and 
unconsolidated sediment. At the time of consultation, the Federal 
agency may use all existing data or choose to collect new data to 
determine whether its action may affect the essential feature.

Comments on the Boundaries of the Designation

    Comment 17: We received several comments suggesting that, by 
designating the north boundary of the Florida area at the boundary 
between Martin and Palm Beach counties, we included areas outside of 
the historic or current range for elkhorn and staghorn coral and areas 
that do not provide for the conservation of the species.
    Response: We acknowledge that the northern extent of the ranges of 
these species is south of the northern Palm Beach County line and, upon 
additional examination, were able to more accurately designate the 
northern boundary of the Florida area at Boynton Inlet, Palm Beach 
County, at 26[deg] 32' 42.5'' N. We are modifying the northern boundary 
accordingly in this final rule. We have no knowledge of either species 
of Acropora historically or presently occurring north of this boundary.
    Comment 18: Several commenters stated that these corals do not grow 
in the intertidal zone and requested that we consider mean low water 
(MLW) as the shoreward boundary rather than mean high water (MHW).
    Response: We acknowledge that these species do not grow in the 
intertidal

[[Page 72215]]

zone. The territorial sea baseline is defined at 33 CFR 2.20 as ``the 
mean low water line along the coast of the United States'', which 
further notes that charts depicting the baseline are available for 
examination. Therefore, we are changing the shoreward boundary to MLW 
in this final rule.
    Comment 19: Two commenters stated that the nearshore surf zones of 
Palm Beach, Broward, and Miami-Dade Counties are areas with high 
sediment movement, suspension, and deposition levels. Hard bottom areas 
found within these nearshore surf zones are ephemeral in nature and are 
frequently covered by sand, thus not meeting the definition of the 
proposed essential feature. The commenter requested the shoreward 
boundary of the Florida area be moved offshore in Palm Beach, Broward, 
and Miami-Dade Counties to at least the 1-5 meter depth contour.
    Response: Conditions along the east coast of Florida in the 
nearshore surf zone are not conducive for the identified conservation 
goal of increased sexual and asexual recruitment. The hydrodynamic 
conditions in this portion of the species' range are very different 
from those further south in Florida and around islands in the 
Caribbean, like Puerto Rico and the U.S.V.I. Additionally, upon 
additional review of the current and historic occurrence data for the 
two species along the east coast of Florida, there were no occurrences 
in water less than 6 feet (1.8 m) deep. Therefore, in this final rule, 
we are changing the shoreward boundary for the Florida area to the 6-ft 
(1.8 m) contour from the north boundary at Boynton Inlet south to 
Government Cut, where it moves inshore to MLW. Government Cut was 
identified as the southernmost boundary where there were no occurrences 
of either species in less than 6 feet (1.8 m) of water. There are 
occurrences of the species in less than 6 feet (1.8 m) of water south 
of Government Cut, thus indicating that hydrodynamic conditions are 
suitable for recruitment in shallower waters.
    Comment 20: One commenter stated that the species does not occur in 
the Gulf of Mexico and suggested the boundary of the Florida area be 
changed to the South Atlantic Fishery Management Council (SAFMC) 
boundary.
    Response: We acknowledge that the SAFMC boundary is the appropriate 
boundary in the Florida area given the occupied range of the coral. 
Generally, the SAFMC boundary separates the Gulf of Mexico from the 
Atlantic Ocean. In this final rule, we are changing the northern 
boundary of the Florida Keys portion of the Florida area to coincide 
with the boundary between the SAFMC boundary as defined at 50 CFR 
600.105(c).
    Comment 21: One commenter stated that, based on development trends 
and the associated anthropogenic-induced impacts, it does not appear 
reasonable to designate critical habitat within 100 yards (91.4 m) of 
any platted and improved subdivision with roads, utilities, improved 
shorelines, etc.
    Response: The commenter does not provide a biological basis for the 
comment and does not describe how the area would not provide for the 
conservation of the species. Rather, if the ``anthropogenic-induced 
impacts'' the commenter identified could result in impacts to the 
essential feature and there is a Federal nexus, the species could 
benefit from consultation with us to identify ways to reduce the impact 
to the essential feature.
    Comment 22: One commenter stated that Acropora spp. have not been 
documented any closer than approximately 200 yards (183 m) from the 
shore on the Atlantic Ocean side in the Upper and Middle Florida Keys.
    Response: The commenter is correct that we do not have specific 
data of the species occurring within the distance stated. While that 
area has not been surveyed specifically for Acropora spp., the area is 
considered occupied given the range of this species and because the 
habitat may be conducive for the species. Staghorn coral particularly 
is often found in the back reef and lagoonal areas of the coral reef 
ecosystem, the habitat that occurs in the stated distance from shore. 
Therefore, we have no basis to designate a different shoreward boundary 
within the Upper and Middle Florida Keys.
    Comment 23: One commenter stated that there have been no documented 
acroporid colonies within any portion of Biscayne Bay, including 
residential canal systems or tributaries to Biscayne Bay or the 
Intracoastal Waterway.
    Response: Per textual description in the proposed rule and the 
correction to the maps in the proposed rule (73 FR 12068; March 6, 
2008), neither Biscayne Bay nor the Intracoastal Waterway is within the 
proposed critical habitat.
    Comment 24: Two commenters stated that Monroe County and Miami-Dade 
County typically do not appear to be suitable for colonization of 
Acropora spp. within the residential canals and man-made basins due to 
poor water quality. These systems usually exhibit high turbidity, 
suspended sediments, low water clarity, poor flushing/circulation, and 
nutrient/freshwater influxes from upland runoff.
    Response: As stated in this rule, all existing federally authorized 
or permitted man-made structures, including canals and marinas, do not 
provide the essential feature; and therefore, are not included in the 
designation.
    Comment 25: One commenter suggested that we more clearly map the 
designated area's inland boundaries as few people are familiar with the 
COLREGS line. Another commenter requested that we define the COLREGS 
line.
    Response: The COLREGS line is defined as the lines of demarcation 
delineating those waters upon which mariners shall comply with the 
International Regulations for Preventing Collisions at Sea, 1972 (72 
COLREGS) and those waters upon which mariners shall comply with the 
Inland Navigation Rules. The waters inside of the lines are Inland 
Rules waters. The waters outside the lines are COLREGS waters. So, in 
other words, the COLREGS line separates inland from marine waters. We 
used the COLREGS line because it is depicted on all navigational charts 
and defined at 33 CFR Part 80. Last, the overview maps provided in the 
rule are provided for general guidance purposes only, and not as a 
definitive source for determining critical habitat boundaries.
    Comment 26: One commenter stated that the occurrence of the 
essential feature within the Dry Tortugas (protected by the National 
Park Service) is questionable as shown by its geological history.
    Response: The species have both been documented within the Dry 
Tortugas, and the essential feature is present. Therefore, the area 
remains within the designation.
    Comment 27: One commenter questioned why the area between the 
westernmost Florida Keys and the Dry Tortugas was included in the 
designation. Specifically, the commenter provided information on the 
area around the Marquesas Keys, which demonstrated that the species do 
not presently occur, and have never been present in this area, based on 
the geologic record.
    Response: We appreciate the commenter providing us with this 
information. Additionally, upon further review of the NOAA Biogeography 
Team's Benthic Habitats of the Florida Keys data, there are very few, 
small areas that contain the essential feature between Boca Grande Key 
(approximately 12 miles (19.3 km) west of Key West) and the Dry 
Tortugas. However, based on the information provided by the commenter, 
these areas currently do not, and have never,

[[Page 72216]]

supported the species. The intent of critical habitat is to provide for 
the conservation of the species. Based on the data we had at the time 
of the proposed designation, we included the area between Boca Grande 
Key and the Dry Tortugas because we believed the area contained the 
essential feature and would provide for the conservation of the 
species. With the new information we received and reexamination of 
information used in developing the proposed rule, we determined that 
this area does not contain the feature essential to the conservation of 
the species. Therefore, we are not designating this area as critical 
habitat in this final rule. The western boundary of the Florida Keys 
portion of the Florida area will terminate at 82 W longitude. The Dry 
Tortugas portion of the Florida area will be MLW to the 98-ft (30 m) 
contour with an eastern boundary of 82 45' W longitude. A full 
description of the modified Florida area is provided in the preamble 
and regulatory language of this rule.
    Comment 28: Several commenters expressed concern about the areas 
within the Florida area of the designation that do not contain the 
essential feature and thus are unsuitable to provide for the 
conservation of the species. A few commenters requested that we 
specifically survey and more finely map locations of the essential 
feature.
    Response: The essential feature can be found unevenly dispersed 
throughout the Florida area due to trends in macroalgae coverage and 
naturally occurring unconsolidated sediment and seagrasses dispersed 
within the reef ecosystem. However, as described in the response to 
Comment 27, we are not designating a large portion of the proposed 
Florida area based on new information that the area does not contain 
the essential feature. Within the remainder of the Florida area, larger 
numbers of smaller specific areas could not be identified because the 
submerged nature of the essential feature, the limits of available 
information on the distribution of the essential feature, and limits on 
mapping methodologies make it infeasible to define the specific areas 
containing the essential feature more finely than described herein. The 
ESA requires us to designate critical habitat to the maximum extent 
prudent and determinable, based on the best information available.
    Comment 29: One commenter requested that we identify all roads and 
bridges within the textual description and on the maps for critical 
habitat, as has been done for other terrestrial species. Further, the 
same commenter requested that bridges be added to the list of existing 
man-made structures that do not provide the essential feature.
    Response: We have designated critical habitat using known 
boundaries that are applicable to the marine ecosystem in which the 
species occur. We do not believe that it would be more informative to 
the public to identify roads and bridges on maps of the critical 
habitat areas. While we agree that bridges do not provide the essential 
feature, the list of existing man-made structures that do not provide 
the essential feature is not exhaustive; it is provided to give the 
public examples of the types of structures to which we are referring.
    Comment 30: One commenter stated that we should designate all areas 
occupied by elkhorn and staghorn corals in Florida - especially Florida 
Bay - as critical habitat. The commenter also expressed concern about 
the quality of water entering Florida Bay from the Everglades, and 
stated that including Florida Bay in the critical habitat designation 
would benefit corals living there.
    Response: As stated in the proposed rule, the critical habitat 
designation for threatened corals focuses on substrate of suitable 
quality and availability to support successful sexual and asexual 
reproduction of the two corals. While hardbottom does exist within 
Florida Bay, neither elkhorn nor staghorn coral has ever been observed 
or documented living in this area, making it unlikely that the larvae 
or fragments of either coral species would settle on or reattach to 
hardbottom located within Florida Bay. Therefore, we do not believe 
that any hard substrate in Florida Bay would contribute to the 
conservation objective for this designation - facilitating increased 
successful reproduction.
    Comment 31: One commenter recommended that the designation be 
limited and exclude ``areas with documented historical low densities, 
or documented current and historical absence of the species and 
essential feature''. The commenter provided specific references to 
support the comment (Goenaga and Cintron, 1979; ``Benthic Habitats of 
Puerto Rico and the U.S. Virgin Islands'' by NOAA's Biogeography 
Program; and two maps of occurrences of Acropora in Miami- Dade and 
Monroe Counties).
    Response: As stated in the response to Comment 27, we reevaluated 
the NOAA benthic characterization data, which supported our 
identification of areas that contain the essential feature. The 
reevaluation yielded the modification of the Florida critical habitat 
area based on the documented current and historical absence of the 
species or essential feature, or both. The data contained in the two 
maps provided by the commenter were considered in the proposed rule and 
did not support the identification of any small specific areas that do 
not contain the essential feature. The reevaluation of the data did not 
support revision of the Puerto Rico or U.S.V.I. areas. As discussed in 
the Geographical Areas Occupied by the Species section of this rule, 
both species have been documented to occur, historically and presently, 
surrounding the main island and offshore cays within these areas. 
Goenaga and Cintron's paper is an inventory of the Puerto Rican reefs 
from the late 1970s. Although we have considered the information 
provided by the commenter, it does not support the identification of 
areas that do not contain the essential feature; thus, we are not 
revising this final rule on the basis of this information.
    Comment 32: Two commenters requested exclusions and exemptions for 
the Port of Key West to provide for normal channel and harbor 
activities. A buffer around the Port was also requested.
    Response: As stated in the response to Comment 13, all existing 
federally authorized and permitted navigation channels and harbors, 
which include the Port of Key West, are not included in the critical 
habitat, because they do not contain the essential feature. The ESA 
does not allow for the identification of buffers around areas not 
included per se. Areas that do not contain the essential feature do not 
meet the definition of critical habitat and therefore may not be 
designated. Also, areas may be excluded on the basis of economic, 
national security, or other relevant impacts. The area surrounding the 
Port of Key West meets the definition of critical habitat, and we did 
not identify any basis for exclusion of this area.
    Comment 33: One commenter stated that we did not mention the 
offshore islands and cays in the U.S.V.I. as being part of the 
designation.
    Response: As stated in the regulatory language in the proposed rule 
and this rule, all areas from MLW to the 98-ft (30 m) contour within 
the U.S.V.I. are included in the designation, which would include the 
offshore cays and islands.
    Comment 34: One commenter requested buffer zones for critical 
habitat in order to avoid potential indirect impacts for any kind of 
project that would be developed very close to those critical habitats. 
A second commenter requested that we identify

[[Page 72217]]

the maximum distance from critical habitat a project may be to avoid 
direct or secondary impacts to the essential feature.
    Response: While the ESA does not provide for the identification of 
buffer zones around critical habitat, Federal agencies authorizing, 
funding, or carrying out activities that occur outside critical 
habitat, regardless of distance from critical habitat, that may have 
effects to the essential feature within critical habitat must conduct 
an ESA section 7 consultation. Conversely, actions that have no direct 
or indirect effects on the essential feature - even actions within or 
immediately adjacent to critical habitat - would not require 
consultation based on critical habitat.
    Comment 35: Several commenters questioned our assertion that we 
were only designating areas that met the definition of occupied 
critical habitat, because there are other substrate types interspersed 
with the essential feature within the designation and because there are 
particular sites where the corals are not present. Another commenter 
questioned our interpretation of ``geographical area occupied'' to mean 
the range of a species at the time of listing.
    Response: We have long interpreted ``geographical area occupied'' 
in the definition of critical habitat to mean the range of the species 
at the time of listing (45 FR 13011; February 27, 1980). The term 
``specific areas'' in the definition of critical habitat refers to 
areas on which the feature essential to a species' conservation are 
found. The designated critical habitat areas fall within the 
geographical area occupied by both species, and the essential feature 
is found on these areas. We have not identified any areas outside the 
geographical area occupied by the species that are essential for their 
conservation. Therefore, we did not designate any unoccupied areas for 
elkhorn and staghorn corals.
    Comment 36: One commenter suggested that we designate critical 
habitat to allow for shifts in distribution of the species and 
adaptation in response to global warming.
    Response: The ESA does not provide for designation of critical 
habitat based upon speculation about expansions into habitats or ranges 
never occupied by the species. While the definition of critical habitat 
does include areas outside the geographical area occupied by the 
species at the time of listing, the habitat would have to be essential 
to the conservation of the species. As determined through the listing 
of elkhorn and staghorn corals, there has been no range constriction 
for either species. The species currently occupy their entire 
historical ranges, only in lower abundances. There is no evidence that 
any areas outside the historical ranges of the species have suitable 
conditions to support the species.

Comments on ESA Section 7 Consultations and Economic Impacts

    Comment 37: One commenter stated that the rule erroneously mentions 
only formal consultations but does not analyze informal consultations, 
which impact Federal agencies also.
    Response: In the 4(b)(2) Report, we base our impact analysis on 
consultations conducted in the last 10 years that occurred in the 
designated areas and that may affect the designated critical habitat, 
regardless of whether the consultation was concluded formally or 
informally. We then assumed that all future consultations would be 
formal, acknowledging that assumption would result in an overestimation 
of impacts. Therefore, we did not omit informal consultations from the 
impacts assessment.
    Comment 38: One commenter requested we specifically identify other 
regulations that address modifications, including those pertaining to 
water quality, that may be required to avoid destroying or adversely 
modifying the essential feature and give examples of when compliance 
with these other regulations would eliminate the need for ESA section 7 
consultation.
    Response: In our Draft 4(b)(2) Report, we identified potential 
project modifications that may be required to avoid destruction or 
adverse modification of critical habitat. Several of the potential 
project modifications, such as turbidity controls and conditions 
monitoring, are currently required by other existing regulations, such 
as a Clean Water Act (ESA) section 404 permit. We intended this example 
to illustrate that the cost of implementing these project modifications 
would not be solely attributable to the critical habitat designation; 
it was not our intention to suggest that ESA section 7 consultation 
would not be required if the project modification were required by 
another regulation. The ESA requires all Federal agencies to consult on 
their actions that may affect critical habitat regardless of any other 
regulations that may be applicable to the action. It is possible that 
an action may be modified by another regulatory requirement that 
results in removing all possible effects to critical habitat. In this 
case, ESA section 7 consultation would not be necessary. We have not 
evaluated every water quality standard or National Pollution Discharge 
Elimination System (NPDES) permit to determine the effects of those 
Federal actions on critical habitat. It is the responsibility of the 
Federal action agency to determine the effects of its action on listed 
species and designated critical habitat. Therefore, we cannot identify 
specific water quality standards or NPDES conditions that do not affect 
critical habitat.
    Comment 39: The U.S. Army Corps of Engineers (COE) commented that 
we underestimated the number of consultations resulting from COE 
regulatory projects that may affect critical habitat.
    Response: During discussions with the COE as we developed this 
final rule, we clarified that projects occurring within (and whose 
effects are limited to) existing Federally authorized or permitted 
channels or harbors would not result in consultation because these 
areas do not contain the essential feature. As a result of these 
discussions, we continue to rely on the consultation data provided in 
the draft 4(b)(2) report and use this information in the impacts 
analysis in the final 4(b)(2) report.
    Comment 40: The COE stated that we underestimated the number of 
Operation and Maintenance Dredging Program consultations due to the 
existence of the Biological Opinion on ``[t]he continued hopper 
dredging of channels and borrow areas in the southeastern United 
States,'' which covers all maintenance dredging of Federal channels 
with the use of a hopper dredge. The COE said that new individual 
consultations would be necessary for each maintenance event.
    Response: The referenced Biological Opinion was captured in our 
database query and included in our impact analysis in the 4(b)(2) 
Report. The COE has reinitiated consultation with us for that action; 
therefore, the effects of all the events covered in that consultation 
will be considered in one consultation. The data we used included the 
projection of this consultation and did not underestimate the number of 
consultations. Moreover, as stated above, all federally authorized or 
permitted navigation channels are not included in the designation; thus 
the analysis in this reinitiated consultation will be limited to 
turbidity and sediment effects to areas adjacent to the channels that 
may contain the essential feature.
    Comment 41: One commenter said our statement that ``no categories 
of Federal actions would require consultation in the future solely due 
to the critical habitat designation'' is incorrect. The commenter said 
that the

[[Page 72218]]

critical habitat designation is ``everywhere''.
    Response: Our statement referred to categories of activities and 
not individual actions. We discussed this distinction at length in the 
Draft 4(b)(2) Report. The categories discussed in the 4(b)(2) Report 
were all determined to be capable of affecting both critical habitat 
and the corals themselves; activities that could adversely affect the 
corals would require consultation even if critical habitat were not 
designated.
    Comment 42: One commenter questioned whether Federal agencies would 
have to consult on their actions if the species were present, but the 
project was not within the critical habitat designation.
    Response: Yes, as discussed in the response to Comment 41, the 
responsibility for Federal agencies to consult on their actions that 
may affect the species initiated with the listing of the species on May 
9, 2006. The species are listed wherever they occur, regardless of a 
critical habitat designation.
    Comment 43: One commenter stated that our statement that Florida 
will be affected, but the Caribbean will be relatively unaffected, 
reflects the ignorance of the agency regarding Caribbean resources and 
the level of development in the islands. The commenter said the 
ignorance of the agency and those who wrote all documents related to 
this listing, not just the critical habitat rule, is further 
demonstrated by the statement that the rule will have little impact on 
dock construction because most dock construction takes place in canals. 
This may be the case for Florida, but the Caribbean does not have man-
made canals unless they are excavated in inland marinas in areas 
containing salt ponds, coral reefs, and seagrass beds.
    Response: Our Draft 4(b)(2) Report used the best available data to 
estimate potential economic impacts resulting from the designation. 
Consultations on dock construction are captured in our data under the 
category of COE-permitted construction activities. The data from the 
last 10 years were: 235 consultations in Florida on COE-permitted 
construction activities; 75 consultations in Puerto Rico on COE-
permitted construction activities; and 25 consultations in the U.S.V.I 
on COE-permitted construction activities. These data indicate that 
Florida had more than twice the amount of consultations in the 
Caribbean; thus, the impacts to Florida from marine construction 
activities would be larger as a result of the designation.
    We acknowledge the difference in the physical nature of the coast 
between Florida and the Caribbean. The Florida coastline is highly 
altered, and most dock construction occurs in man-made canals. 
Alternatively, the islands of Puerto Rico and the U.S.V.I. have a 
greater proportion of natural shoreline along which docks may be 
constructed. Further, dock construction projects are not likely to 
result in large impacts to critical habitat necessitating large project 
modifications due to: (1) the typically small action area of docks; (2) 
the preference for constructing docks in unconsolidated sediment to 
minimize the difficulty and cost of driving piles into consolidated 
rock; and (3) the relatively inexpensive measures to minimize impacts 
through essential feature avoidance and turbidity controls. Further, 
even given the differences in the physical nature of the shorelines, 
the impact of project modifications to dock construction projects due 
to the critical habitat designation in the Caribbean will not solely be 
the result of the critical habitat designation. The ESA listing and 
existing regulations, such as the CWA and Magnuson-Stevens Fishery 
Conservation and Management Act (MSA), would likely require the same 
avoidance and minimization measures for elkhorn and staghorn corals and 
other species of corals; thus, many of the costs would be coextensive 
with these regulations and not solely a result of the critical habitat 
designation.
    Comment 44: One commenter stated that because we identified 
artificial reefs as an existing man-made structure that does not 
provide the essential feature, there may be an impact to projects that 
are required to construct artificial reefs for mitigation under the CWA 
regulatory programs. Further, the commenter objected to our conclusion 
that artificial reefs cannot serve as habitat for elkhorn and staghorn 
corals.
    Response: The definition of critical habitat is ``the specific 
areas within the geographical area occupied by the species, at the time 
it is listed in accordance with the provisions of section 4 of this 
Act, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection.'' Because there is 
sufficient natural hardbottom existing to provide for the conservation 
of the species, artificial reefs are not essential to the conservation 
of the species. We identified artificial reefs in the list of existing 
man-made structures that do not provide the essential feature to inform 
the public that activities that would affect only artificial reefs 
would not require ESA section 7 consultation. However, that 
identification in no way states whether artificial reefs should or 
should not be prescribed as mitigation for a particular activity under 
the CWA or MSA.
    Comment 45: One commenter requested that we ensure that the 
critical habitat designation does not unduly restrict recreational 
boating in the region. The commenter also requested that our economic 
analysis recognize that the economic value of coral reefs is only made 
possible by the preservation and promotion of public vessel access.
    Response: Nothing in this rule or the 4(b)(2) Report states that 
boater access will be restricted within critical habitat. As stated in 
the proposed rule, the primary impacts of a critical habitat 
designation result from the ESA section 7(a)(2) requirement that 
Federal agencies ensure their actions are not likely to result in the 
destruction or adverse modification of critical habitat. Furthermore, a 
critical habitat designation does not result in the creation of closed 
areas, preserves, or refuges. There are no individual prohibitions on 
any activities within critical habitat. The transit of vessels through 
or anchoring of vessels in areas designated as critical habitat is not 
prohibited.
    The 4(b)(2) Report acknowledges the economic benefit coral reef 
associated tourism provides. The absolute value related to the boating 
component of that benefit can not be extrapolated from existing data. 
However, nothing in the rule or the 4(b)(2) Report is contrary to the 
supposition that recreational boating contributes to the economic 
benefit coral reefs provide.
    Comment 46: One commenter stated that we should clarify our 
intentions with respect to secondary impacts from water access projects 
outside the critical habitat and vessel operations over critical 
habitat. The commenter recommended we either include language in the 
preamble and in subsequent guidelines and memoranda generally stating 
that certain secondary impacts, such as vessel operation, from 
facilities not located in a critical habitat area are too de minimis to 
affect the species.
    Response: In our proposed designation and Draft 4(b)(2) Report, we 
did not identify normal vessel operation as an activity that would 
affect critical habitat.
    Comment 47: One commenter stated that the proposed designation may 
preclude the bypassing of sand from inlets to down drift eroding 
beaches in

[[Page 72219]]

southeast Florida, requiring alternate sites on which to place the 
sand. This may result in increased costs from the acquisition of 
disposal lands.
    Response: As stated in the response to Comment 20, we have moved 
the inshore boundary of the Florida critical habitat area to the 6 ft 
(1.8 m) contour. Therefore, most beaches along the east coast of 
Florida are no longer directly abutted by critical habitat. Even in 
areas where beaches may abut critical habitat, the project would only 
have to undergo ESA section 7 consultation for critical habitat if the 
essential feature were present and the project were to meet the ``may 
affect'' threshold. Even in that event, the project would not be 
precluded based on the presence of the essential feature and the 
potential for affecting it. The project would undergo consultation, and 
modifications appropriate for the specifics of the project to reduce 
the effect of the project on critical habitat may be implemented. Only 
in the rare instance where a proposed project was expected to result in 
destruction or adverse modification of critical habitat would the 
project be precluded, if no reasonable and prudent alternatives (RPA) 
were available.
    Comment 48: One commenter stated that using the ``Interim Acropora 
Survey Protocol for Section 7 Consultation'' to survey disposal areas 
for inlet management projects within critical habitat was too cost 
prohibitive. Another commenter requested that NMFS specifically 
identify survey costs. One other commenter stated that requiring other 
agencies or the public to locate the essential feature is not 
consistent with the ESA.
    Response: The Interim Acropora Survey Protocol for Section 7 
Consultation is a suggested survey protocol to determine if elkhorn or 
staghorn is present within the action area of a Federal project. It was 
never intended to be a survey protocol for critical habitat. Because 
the need to survey for the species is a result of the listing, the 
associated cost would also be a result of the listing. While these 
surveys would also need to determine whether the hardbottom substrate 
PCE is present as a result of this designation, the cost of these 
surveys is at least partially coextensive with the listing. In 
addition, other existing State and Federal regulations require 
applicants to determine the extent of impact to benthic resources, and 
the benthic resources in a project area can be determined by using 
various survey methods. Pursuant to the ESA, it is the responsibility 
of the action agency to determine, on the basis of the best scientific 
information available, whether its action may affect the listed species 
or the critical habitat. Please see the response to Comments 13 and 20 
explaining why few inlet management projects would be included in the 
Florida area.
    Comment 49: One commenter stated concern over the effect of beach 
renourishment projects that do not require a Federal permit because 
there is no in-water work. A second commenter stated concern about the 
effects of beach renourishment and requested less destructive 
techniques.
    Response: The commenter is correct that non-Federal projects are 
not subject to ESA section 7 consultation, and the ESA does not 
prohibit individuals from affecting critical habitat. However, if an 
activity occurs on land and has effects in the waters of the United 
States, such as discharges of sediments or other pollutants, a Federal 
permit may be required for that activity, potentially under the CWA or 
other statutes, depending on the location. Such permits would 
constitute a Federal agency action requiring a section 7 consultation 
on affected species listed under the ESA; the effects of such a project 
on critical habitat would be analyzed through a biological opinion 
resulting from the consultation. The consultation may result in 
modifications to the project to reduce the impact on the critical 
habitat.
    Comment 50: Two commenters stated that there would be economic 
impacts associated with the loss of shoreline protection resulting from 
the designation's impact on shoreline protection and beach 
renourishment projects by prohibiting the placement of sand along 
eroded beaches.
    Response: We did not include the economic impact associated with 
loss of shoreline protection as an impact of the designation, because 
we do not foresee the designation prohibiting the placement of sand 
along beaches. The purpose of ESA section 7 consultation is to ensure 
the Federal activity does not result in the destruction or adverse 
modification of the designated critical habitat, while still meeting 
the objectives of the project. While beach renourishment was identified 
as an activity that may be affected by the designation, it is not 
certain that every beach renourishment project would result in 
destruction or adverse modification. Rather, as stated in the 4(b)(2) 
Report, with the implementation of modifications already required by 
existing regulations, beach renourishment projects may not result in 
large impacts to critical habitat.
    Comment 51: One commenter had several comments on how the 
designation would affect bridge projects, including maintenance, 
replacement, and new construction. The commenter requested 
clarification on the types of activities that would require 
consultation on critical habitat, specifically since Table 20 of the 
Draft 4(b)(2) Report did not identify ``Bridge Repair'' as a category 
of activity requiring ESA section 7 consultation for critical habitat. 
The commenter stated that there would be project costs and delays to 
determine if the species or essential feature were present.
    Response: As stated in the response to Comment 13, all existing, 
federally authorized or permitted structures do not provide the 
essential feature for elkhorn and staghorn corals. Therefore, if the 
specific ``Bridge Repair'' activity only involved modifications to the 
existing structure and there were no effects to the essential feature, 
no consultation for critical habitat would be required. If the project 
were to include the construction of a new structure and that 
construction may affect listed species or critical habitat, the 
standard ESA section 7 consultation requirements would apply. 
Consultation for effects to elkhorn or staghorn coral resulting from 
the new construction would be required due to the listing whether or 
not critical habitat is designated.
    Comment 52: One commenter requested we revise the 4(b)(2) Report to 
include the costs of anticipated measures and best management practices 
resulting from the designation.
    Response: The Final 4(b)(2) Report includes the best available 
information on the costs of the identified project modifications. We 
did not receive any specific information during the comment period to 
alter the cost estimates of any of the identified project 
modifications; thus the Final 4(b)(2) Report includes the costs 
expected to result from the designation.
    Comment 53: One commenter stated considerations should be given to 
the economic effect of the critical habitat designation; the 
designation should especially consider any disproportionate effect on 
small businesses.
    Response. In the final regulatory flexibility analysis (FRFA), we 
state that small entities may be affected by the designation; however, 
there is no indication that those affected by the designation would be 
limited to, nor disproportionately comprised of, small entities. Only 
those small entities that receive Federal funding or authorization for 
their activity, which may affect critical habitat, would be affected. 
We specifically requested comment on

[[Page 72220]]

impacts to small entities but did not receive any information during 
the comment period to assist in refining our analysis presented in the 
IRFA.
    Comment 54: Two commenters stated that the designation would 
negatively impact Federal projects that would need to be implemented in 
response to a major storm or hurricane, such as shoreline 
reconstruction and protection projects.
    Response: Our ESA section 7 consultation regulations allow for an 
expedited procedure for consulting on projects under emergency 
circumstances (50 CFR 402.05). If a Federal action in response to a 
hurricane were to affect designated critical habitat, we would comply 
with our regulations and consult as expeditiously as possible.
    Comment 55: One commenter stated that we stated that tourism is not 
important to Puerto Rico.
    Response: We believe the statement to which the commenter is 
referring is: ``Tourism is not as important a component of Puerto 
Rico's overall economy as it is in [ Florida and U.S.V.I.].'' The 
economic baseline data summarized in the rule and the 4(b)(2) Report 
show that tourism-related industries account for the largest proportion 
of the economy in Florida and the U.S.V.I., whereas manufacturing 
accounts for the largest proportion of the economy in Puerto Rico. 
However, we acknowledge that tourism-related industries are within the 
top five sectors in Puerto Rico. While we believe our statement is 
correct, we further acknowledge the contribution of tourism to the 
economy of Puerto Rico.
    Comment 56: Several commenters stated concerns that critical 
habitat would negatively impact fishing. One stated that closing off 
all waters from 0 to 30 m would not conserve the corals and would 
negatively impact fishing. Another commenter requested financial 
compensation for the economic impacts of the designation.
    Response: Critical habitat does not create a closed fishing area. 
The designation of critical habitat for elkhorn and staghorn corals 
would not close the designated areas to fishing. The designation would 
require NMFS' Sustainable Fisheries Division to consult with NMFS' 
Protected Resources Division on Federally-managed fisheries that affect 
the critical habitat. As stated in the Draft 4(b)(2) Report, the only 
fisheries likely to affect the essential feature are those that use 
traps. Further, traps placed legally are not likely to affect the 
essential feature because they are not placed on corals or coral 
skeletons. However, traps may become mobilized during storm events and 
interact with the dead-in-place skeleton portion of the essential 
feature, resulting in breakage and damage. In the 4(b)(2) Report, we 
identified gear maintenance as a potential project modification that 
may be implemented during consultation to reduce the impact of traps on 
the essential feature. The costs associated with this project 
modification would be fully co-extensive with the listing because loose 
traps can also break and damage the listed corals. Although we could 
not identify a specific monetary value associated with this potential 
project modification due to the variable number of traps, distance from 
shore, and price of fuel, it is likely that there would also be a 
benefit to the fishermen because traps would not be lost during storm 
events.
    Comment 57: Several commenters stated that there are many 
activities that may affect critical habitat that do not receive Federal 
funding or authorization, or are not carried out by a Federal agency, 
and these activities should undergo ESA section 7 consultation. One 
commenter asked whether coastal habitat restoration projects and 
coastal bridge or roadway construction projects would require 
consultation.
    Response: The commenters are correct that there may be activities 
that affect critical habitat that do not have a Federal nexus. These 
activities are not required to undergo ESA section 7 consultation. ESA 
section 7 only requires Federal agencies to ensure their activities do 
not destroy or adversely modify critical habitat. If a Federal 
restoration, bridge, or roadway construction project would affect the 
essential feature within designated critical habitat, the Federal 
agency would be required to consult. There are no other regulatory 
requirements pertaining to critical habitat in the ESA.
    Comment 58: Several commenters identified specific federally 
regulated activities occurring within the designated critical habitat 
areas that they believe require profound changes in order to promote 
recovery of the threatened corals, such as open ocean outfalls and 
beach renourishment projects.
    Response: The designation will allow us to review Federal projects 
that may affect the essential feature through interagency consultation 
pursuant to ESA section 7. Further, we are currently conducting 
consultations on Federal projects that may affect the threatened 
corals. A Federal agency's responsibility to consult with us is 
triggered by the listing of a species and proposal of an action that 
may affect such species; therefore, we have been consulting on projects 
since the species were listed in May 2006. This rule allows us to 
consult on Federal projects that affect the essential feature within 
critical habitat. Project modifications implemented as a result of the 
consultation process will reduce project impacts and help promote 
recovery of these species.
    Comment 59: One commenter stated that ongoing and proposed projects 
should undergo consultation for critical habitat. A second commenter 
asked, if a project changed, such as the size of a pipeline, would it 
have to be reviewed again?
    Response: Once this designation becomes effective, all Federal 
actions that may affect the essential feature within critical habitat 
must undergo section 7 consultation. If there is an ongoing Federal 
action that has already completed consultation for listed species or 
other designated critical habitats and for which ongoing Federal 
involvement or control is retained, the consultation must be re-
initiated if the action may affect critical habitat for the corals. 
Also, if such a Federal action is subsequently modified in a manner 
that causes an effect to the listed species or critical habitat in a 
manner or to an extent not previously considered, consultation must be 
reinitiated (50 CFR 402.16).
    Comment 60: One commenter requested clarification on how the 
designation will affect the implementation of the Monroe County 
Comprehensive Plan to improve water quality conditions in the Florida 
Keys, the establishment of binding treatment and disposal requirements, 
and implementation of the Total Maximum Daily Load (TMDL) Program.
    Response. Without further details, it is not possible to determine 
the impact of the critical habitat designation on the referenced 
programs. However, in our 4(b)(2) Report, we identify discharges to 
navigable waters and establishment or revision of water quality 
standards, NPDES permits, and TMDLs as activities that may affect 
critical habitat. If any of the programs referenced by the commenter 
require Federal authorization or funding, or are carried out by a 
Federal agency and may affect the essential feature, then the Federal 
agency must conduct a section 7 consultation for effects on the 
designated critical habitat.
    Comment 61: One commenter requested we identify the criteria used 
to assess whether a project may cause destruction or adverse 
modification (DAM) of critical habitat.
    Response: We do not believe that specific DAM criteria can be 
identified

[[Page 72221]]

in this rule. Rather, that analysis is necessarily dependent on the 
particular facts and circumstances of an individual project's effects 
on critical habitat. Each project is analyzed individually, and 
consultation must assess the effects of that particular situation, 
including the environmental baseline and cumulative effects at the time 
of consultation. Because the defined critical habitat feature is 
essential to the listed corals' conservation, a DAM analysis will 
evaluate whether a project's impacts would impede or diminish the 
critical habitat's ability to facilitate the recovery of the species.
    Comment 62: One commenter requested an explicit statement as to 
when the designation and the ESA section 7 consultation requirement 
would become effective.
    Response: As stated in the DATES section of this rule, the final 
designation and all related requirements become effective December 26, 
2008.
    Comment 63: We received multiple comments, along with supporting 
data, from one commenter located in northern Palm Beach County 
regarding specific economic impacts that the designation would have on 
that commenter.
    Response: For the reasons described in the response to Comment 17, 
we have modified the boundary of the proposed Florida area. The 
boundary has moved south and no longer encompasses the geographic area 
discussed by this commenter.
    Comment 64: One commenter expressed concern that, because critical 
habitat surrounds the entire island of Puerto Rico, it will seriously 
hamper many kinds of maritime commerce, recreation, and subsistence 
activities.
    Response: As stated in the response to several comments, the 
economic impact of critical habitat is solely a result of 
administrative and project modification costs of ESA section 7 
consultation on Federal activities. The designation does not establish 
a closed area or prohibit any specific activities. See responses to 
Comments 43, 45, 46, 55, and 56 regarding the effect of the designation 
on vessel operation, recreation, and fishing activities.

Comments on National Security Impacts

    Comment 65: The Navy stated that the Final Naval Air Station Key 
West (NASKW) Integrated Natural Resources Management Plan (INRMP) now 
demonstrates a conservation benefit to elkhorn and staghorn corals and 
requested critical habitat not be designated on those areas adjacent to 
NASKW properties under ESA section 4(a)(3)(B). The Navy also requested 
that the Restricted Anchorage Area (RAA), defined in 33 CFR 334.580 and 
used by the South Florida Testing Facility (Naval Surface Warfare 
Center, Carderock Division), Dania, FL, also be excluded due to 
national security impacts pursuant to ESA section 4(b)(2). The RAA 
contains underwater cables that enable real-time data acquisition from 
Navy sensor systems used in Navy exercises.
    Response: We appreciate the Navy developing an INRMP which includes 
a benefit to elkhorn and staghorn corals. Section 4(a)(3)(B)(i) of the 
ESA states that we may not designate as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense (DOD), or designated for its use, that are subject to an INRMP 
prepared under section 101of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation. The 
ESA further states that this provision does not affect the requirement 
to consult under section 7(a)(2) nor does it affect the obligation of 
the DOD to comply with section 9. The legislative history for this 
provision further explains:
    ``The conferees would expect the Secretary of the Interior to 
assess an INRMP's potential contribution to species conservation, 
giving due regard to those habitat protection, maintenance, and 
improvement projects and other related activities specified in the plan 
that address the particular conservation and protection needs of the 
species for which critical habitat would otherwise be proposed'' 
(Conference Committee report, 149 Cong. Rec. H. 10563 (November 6, 
2003).''
    The NASKW INRMP covers the lands and waters - generally out to 50 
yards (45.7 m) - adjacent to NASKW, including several designated 
restricted areas. As detailed in Appendix C of the INRMP, the plan 
provides benefits to elkhorn and staghorn corals through the following 
NASKW programs and activities: (1) erosion control; (2) Boca Chica 
Clean Marina Designation; (3) stormwater quality improvements; and (4) 
wastewater treatment. These activities provide a benefit to the species 
and the identified essential feature in the critical habitat 
designation by reducing sediment and nutrient discharges into nearshore 
waters, and this addresses the particular conservation and protection 
needs that critical habitat will afford. Further, the INRMP includes 
provisions for monitoring and evaluation of conservation effectiveness, 
which will ensure continued benefits to the species. On June 26, 2008, 
we determined that the INRMP provides a benefit to the two corals; thus 
we are not designating critical habitat within the boundaries covered 
by the INRMP pursuant to Section 4(a)(3)(B) of the ESA.
    We revised our 4(b)(2) Report to reflect the NASKW areas not being 
designated as a result of the INRMP. Further, as described in the 
previous response to comments on the boundaries of the designation, we 
have made several revisions to the boundaries of the Florida area, 
which removed all other areas of NASKW from the designation. As 
discussed later in this rule and in the Final 4(b)(2) Report, the Dania 
RAA, defined in 33 CFR 333.550, will be added to the areas excluded on 
the basis of national security impacts.
    Comment 66: One commenter asked whether the former DOD sites around 
Puerto Rico and the U.S.V.I. were excluded from the designation.
    Response: No. The referenced sites are no longer military 
installations under the control of the DOD and subject to an INRMP. 
There were also no identifiable national security impacts associated 
with these sites and this critical habitat designation.
    Comment 67: One commenter requested U.S. Highway 1 and its bridges 
be excluded from critical habitat on the basis of national security.
    Response: As stated in the response to previous comments, existing 
Federally authorized or maintained structures, including bridges, do 
not provide the feature essential to the conservation of elkhorn and 
staghorn corals. Therefore, the road and bridges along U.S. Highway 1 
are not included in the designation.
    Comment 68: One commenter stated that the DOD exclusions for 
``readiness areas'' is a vague designation that the DOD uses to keep 
large areas unprotected under the broad ``national security'' 
categorization. The commenter suggested that DOD prepare an EIS on the 
designation of these areas, or be required to consult. Another 
commenter suggested that we and DOD consider whether military 
activities could be performed in areas not in critical habitat.
    Response: Based on information provided to us by the Navy, national 
security interests would be negatively impacted by designation of the 
Dania RAA area because the potential additional consultations and 
project modifications to avoid adversely modifying the essential 
feature would interfere with military training and readiness. The Navy 
is the best

[[Page 72222]]

authority to determine the effect the designation will have on national 
security within those areas where their activities occur. Neither the 
ESA nor NEPA requires the development of an EIS to support that 
determination. Furthermore, the overall area excluded from critical 
habitat because of national security impacts has been reduced from 
approximately 47 sq miles (121 sq km) in the proposed rule to 
approximately 5.5 sq miles (14.2 sq km) in this final rule. The 
reduction is a result of revision of the boundaries of the Florida area 
as described in the response to previous comments and elsewhere in the 
preamble, the finalization of the NASKW INRMP, and the additional 
exclusion of the RAA for the South Florida Testing Facility.

Comments on Existing Regulations Protecting Threatened Corals' Habitat

    Comment 69: One commenter stated that the East End Marine Park and 
Buck Island Reef National Monument in St. Croix, U.S.V.I., already 
protect elkhorn corals. Another commenter suggested that elkhorn and 
staghorn corals are more appropriately protected by other existing 
regulations such as the MSA.
    Response: We recognize that elkhorn coral and its habitat, found 
within the boundaries of East End Marine Park and Buck Island Reef 
National Monument, are protected by the regulations and management 
plans for these areas. We also realize that the St. Croix Unit of 
critical habitat for both threatened elkhorn and staghorn corals 
encompasses the whole of both of these protected areas. Historical data 
and current GIS data indicate that St. Croix has coral reef and 
colonized hardbottom not just within the protected areas named, but in 
areas surrounding the entire island. Based on these data, we believe 
that the entire St. Croix Unit provides the feature essential to the 
conservation of threatened corals, and designation of this unit as 
critical habitat will contribute to the key conservation objective of 
facilitating increased incidence of successful sexual and asexual 
reproduction.
    Additionally, as discussed previously, the designation of critical 
habitat does not set up a closed area, preserve, or refuge. It does 
require Federal agencies to ensure that their actions are not likely to 
result in the destruction or adverse modification of critical habitat. 
Given the potential number and types of future ESA section 7 
consultations, we expect that the designation will prevent adverse 
effects to the essential feature contained not only within East End 
Marine Park and Buck Island Reef National Monument, but throughout the 
entire St. Croix Unit. We believe the additional layer of protection 
provided by the designation of critical habitat will assist in 
preventing further losses of the feature and, eventually, will increase 
abundance of the two species. Last, we also describe in our 4(b)(2) 
Report that the critical habitat designation will provide an important 
and unique benefit to the corals by protecting settling substrate for 
future coral recruitment and recovery, compared to existing laws and 
management plans for these areas that focus on protecting existing 
coral resources.

Comments on Enforcement of the Designation

    Comment 70: Several commenters expressed concerns about the 
enforcement and monitoring of areas designated as critical habitat for 
elkhorn and staghorn corals. One commenter stated that the designation 
would burden the U.S. Coast Guard with more duties, including patroling 
within critical habitat areas.
    Response: As stated in the proposed rule, the primary impacts of a 
critical habitat designation result from the ESA section 7(a)(2) 
requirement that Federal agencies ensure their actions are not likely 
to result in the destruction or adverse modification of critical 
habitat. Federal agencies whose projects may affect critical habitat 
must consult with NMFS to analyze potential impacts of the proposed 
action to each PCE, and to determine whether modifications to such 
actions are necessary. Examples of Federal agency actions that may 
trigger consultation under Section 7 of the ESA and of potential 
project modifications are provided in the Final 4(b)(2) Report for this 
rule.
    Furthermore, a critical habitat designation does not result in the 
creation of closed areas, preserves, or refuges. There are no 
individual prohibitions on any activities within critical habitat. The 
transit of ships through or anchoring of ships in areas designated as 
critical habitat is not prohibited under the ESA. Existing pipelines 
within designated critical habitat are also unaffected by this rule. 
Therefore, the designation of critical habitat does not result in 
additional enforcement responsibilities for any local, state, or 
Federal law enforcement agencies, including the U.S. Coast Guard.

Other Comments

    We received many helpful comments of an editorial nature. These 
comments noted inadvertent errors in the proposed rule and offered non-
substantive but nonetheless clarifying changes to wording. We have 
incorporated these editorial comments in the final rule. As these 
comments do not result in substantive changes to this final rule, we 
have not detailed the changes made.
    In addition to the specific comments detailed above relating to the 
proposed critical habitat rule, the following comments were also 
received: (1) general support for the proposed rule and (2) peer-
reviewed journal articles regarding threats to the species and their 
habitat. After careful consideration, we conclude the additional 
articles received were considered previously or did not pertain to the 
determination to designate critical habitat for elkhorn and staghorn 
corals.

Summary of Changes From the Proposed Critical Habitat Designation

    Based on the comments received, we have made several substantive 
changes to the proposed rule:
    1. The definition of the essential feature is revised to 
``substrate of suitable quality and availability to support larval 
settlement and recruitment, and reattachment and recruitment of asexual 
fragments.''
    2. The definition of ``substrate of suitable quality and 
availability'' has been modified to ``natural consolidated hard 
substrate or dead coral skeleton that is free from fleshy or turf 
macroalgae cover and sediment cover.''
    3. The boundaries and size of the Florida area have been modified. 
We proposed approximately 3,301 sq miles (8,550 sq km), but based on 
comments received, we are designating 1,329 sq miles (3,442 sq km) to 
more accurately reflect the specific areas that contain the essential 
feature. The reduction in the area resulted from: (a) moving the 
northern boundary south to Boynton Inlet, Palm Beach County; (b) moving 
the shoreward boundary to the 6-ft (1.8 m) contour from Boynton Inlet 
to Government Cut, Miami-Dade County; (c) moving the shoreward boundary 
to MLW in all other areas; (d) using the SAFMC boundary; and (e) 
removing the area between Boca Grande Key and the Dry Tortugas.
    4. The areas covered by the INRMP for NASKW are not being 
designated as critical habitat.
    5. The RAA, Dania, FL, is the only DOD installation being excluded 
from critical habitat due to national security impacts.
    6. Twelve existing federally authorized channels and harbors are 
being explicitly not included in this final rule for greater clarity. 
The proposed rule stated that maintained channels do not provide the 
essential feature.

[[Page 72223]]

Critical Habitat Identification and Designation

    Critical habitat is defined by section 3 of the ESA (and further by 
50 CFR 424.02(d)) as ``(i) the specific areas within the geographical 
area occupied by the species, at the time it is listed in accordance 
with the provisions of section 1533 of this title, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 1533 of this title, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species.''

Geographical Areas Occupied by the Species

    The best scientific data available show the current geographical 
area occupied by both elkhorn and staghorn corals has remained 
unchanged from their historical ranges. In other words, there is no 
evidence of range constriction for either species. ``Geographical areas 
occupied'' in the definition of critical habitat is interpreted to mean 
the range of the species at the time of listing and not every discrete 
location on which individuals of the species physically are located (45 
FR 13011; February 27, 1980). In general, elkhorn and staghorn corals 
have the same distribution, with few exceptions, and are widely 
distributed throughout the Caribbean. The Status of Coral Reefs in the 
Western Atlantic: Results of Initial Surveys, Atlantic and Gulf Rapid 
Reef Assessment (AGRRA) Program (Lang, 2003) provides results (1997-
2004) of a regional systematic survey of corals, including Acropora 
spp., from many locations throughout the Caribbean. AGRRA data (1997-
2004) indicate that the historic range of both species remains intact; 
staghorn coral is rare throughout the range (including areas of 
previously known dense occurrence), and elkhorn coral occurs in 
moderation. We also collected data and information pertaining to the 
geographical area occupied by these species at the time of listing by 
partnering with our SEFSC, NOAA National Centers for Coastal Ocean 
Science Biogeography Team, and the U. S. Geological Survey of the 
Department of the Interior. These partnerships resulted in the 
collection of GIS and remote sensing data (e.g., benthic habitat data, 
water depth, and presence/absence location data for Acropora spp. 
colonies), which we supplemented with relevant information collected 
from the public during comment periods and workshops held throughout 
the ESA listing and critical habitat designation process.
    In Southeast Florida, staghorn coral has been documented along the 
east coast as far north as Palm Beach County in deeper (16 to 30 m) 
water (Goldberg, 1973) and is distributed south and west throughout the 
coral and hardbottom habitats of the Florida Keys (Jaap, 1984), through 
Tortugas Bank. The northernmost occurrence of staghorn coral is at 
26[deg]31'27.2'' N, 80[deg] 1'54.6'' W (CPE, pers. obs.). Elkhorn coral 
has been reported as far north as Broward County, with significant reef 
development and framework construction by this species beginning at 
Ball Buoy Reef in Biscayne National Park, extending discontinuously 
southward to the Dry Tortugas. The northernmost occurrence of elkhorn 
coral is at 26[deg] 13'38.4'' N, 80[deg] 4'57.6'' W (K. Banks, pers. 
obs.).
    In Puerto Rico, elkhorn and staghorn corals have been reported in 
patchy abundance around the main island and isolated offshore 
locations. In the late 1970s, both elkhorn and staghorn corals occurred 
in dense and well developed thickets on many reefs off the north, 
northeast, east, south, west, and northwest coasts, and also the 
offshore islands of Mona, Vieques, and Culebra (Weil et al., 
unpublished data). Dense, high profile, monospecific thickets of 
elkhorn and staghorn corals have been documented in only a few reefs 
along the southwest shore of the main island and isolated offshore 
locations (Weil et al., unpublished data), though recent monitoring 
data for the presence of coral are incomplete in coverage around the 
islands. Further, the species have been recently documented along the 
west (e.g., Rincon) and northeast coasts (e.g., La Cordillera). 
Additionally, large stands of dead elkhorn currently exist on the 
fringing coral reefs along the south shoreline (e.g., Punta Picua, 
Punta Miquillo, Rio Grande, Guanica, La Parguera, Mayaguez). Although 
previously thought to be rare on the north shore of Puerto Rico, 
recently discovered reefs along the north coast of the main island also 
support large thickets of elkhorn coral (Hernandez, unpublished data).
    The U.S.V.I. also supports populations of elkhorn and staghorn 
corals, particularly at Buck Island Reef National Monument. St. Croix 
has coral reef and colonized hard bottom surrounding the entire island. 
Data from the 1980s indicate that the species were present along the 
north, eastern, and western shores at that time. The GIS data we 
compiled indicate the presence of elkhorn and staghorn corals currently 
along the north, northeastern, south, and southeastern shores of St. 
Croix. Monitoring data are incomplete, and it is possible that 
unrecorded colonies are present along the western, northwestern, or 
southwestern shores. For the islands of St. Thomas, there are limited 
GIS presence data available for elkhorn and staghorn corals. However, 
Grober-Dunsmore et al. (2006) show that from 2001-2003, elkhorn 
colonies were distributed in many locations around the island of St. 
John. GIS data and several reports identify the location of elkhorn 
colonies around the north and south coasts of the island of St. John 
(e.g., Rogers et al., 2007). Additionally, the data we have indicate 
coral reef and coral-colonized hard bottom surrounding each of these 
islands as well as the smaller offshore islands. Again, it is possible 
that unrecorded colonies are present in these areas.
    Navassa Island is a small, uninhabited, oceanic island 
approximately 50 km off the southwest tip of Haiti managed by U.S. Fish 
and Wildlife Service (FWS) as one component of the Caribbean Islands 
National Wildlife Refuge (NWR). Both acroporid species are known from 
Navassa, with elkhorn apparently increasing in abundance and staghorn 
rare (Miller and Gerstner, 2002).
    Last, there are two known colonies of elkhorn at the Flower Garden 
Banks National Marine Sanctuary (FGBNMS), located 100 mi (161 km) off 
the coast of Texas in the Gulf of Mexico. The FGBNMS is a group of 
three areas of salt domes that rise to approximately 15 m water depth 
and are surrounded by depths from 60 to 120 m. The FGBNMS is regularly 
surveyed, and the two known colonies, which were only recently 
discovered and are considered to be a potential range expansion, are 
constantly monitored.
    Our regulations at 50 CFR 424.12(h) state: ``Critical habitat shall 
not be designated within foreign countries or in other areas outside of 
United States jurisdiction.'' Although the geographical area occupied 
by elkhorn and staghorn corals includes coastal waters of many 
Caribbean and Central and South American nations, we are not including 
these areas for designation. The geographical area occupied by listed 
coral species which is within the jurisdiction of the United States is 
therefore limited to four counties in the State of Florida (Palm Beach 
County, Broward County, Miami-Dade County, and Monroe County), FGBNMS, 
and the

[[Page 72224]]

U.S. territories of Puerto Rico, U.S.V.I, and Navassa Island.

Physical or Biological Features Essential for Conservation (Primary 
Constituent Elements)

    Within the geographical area occupied, critical habitat consists of 
specific areas on which are found those physical or biological features 
essential to the conservation of the species (hereafter also referred 
to as essential features). Section 3 of the ESA (16 U.S.C. 1532(3)) 
defines the terms ``conserve,'' ``conserving,'' and ``conservation'' to 
mean: ``to use, and the use of, all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this chapter are no 
longer necessary.'' Further, our regulations at 50 CFR 424.12(b) for 
designating critical habitat state that physical and biological 
features that are essential to the conservation of a given species and 
that may require special management considerations or protection may 
include, but are not limited to: (1) space for individual and 
population growth, and for normal behavior; (2) food, water, air, 
light, minerals, or other nutritional or physiological requirements; 
(3) cover or shelter; (4) sites for breeding, reproduction, rearing of 
offspring, germination, or seed dispersal; and generally, (5) habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species. These 
regulations state that we shall focus on essential features within the 
specific areas considered for designation.
    As stated in the Atlantic Acropora Status Review Report (Acropora 
Biological Review Team, 2005):
    [T]here are several implications of the current low population 
sizes of Acropora spp. throughout much of the wider Caribbean. 
First, the number of sexual recruits to a population will be most 
influenced by larval availability, recruitment, and early juvenile 
mortality. Because corals cannot move and are dependent upon 
external fertilization in order to produce larvae, fertilization 
success declines greatly as adult density declines; this is termed 
an Allee effect (Levitan 1991). To compound the impact, Acropora 
spp., although hermaphroditic, do not effectively self-fertilize; 
gametes must be outcrossed with a different genotype to form viable 
offspring. Thus, in populations where fragmentation is prevalent, 
the effective density (of genetically distinct adults) will be even 
lower than colony density. It is highly likely that this type of 
recruitment limitation (Allee effect) is occurring in some local 
elkhorn and staghorn populations, given their state of drastically 
reduced abundance/density. Simultaneously, when adult abundances of 
elkhorn and staghorn corals are reduced, the source for fragments 
(to provide for asexual recruitment) is also compromised. These 
conditions imply that once a threshold level of population decline 
has been reached (i.e., a density where fertilization success 
becomes negligible) the chances for recovery are low.
    Thus, we determined that based on available information, 
facilitating increased incidence of successful sexual and asexual 
reproduction is the key objective to the conservation of these species. 
We then turned to determining the physical or biological features 
essential to this conservation objective.
    Currently, sexual recruitment of elkhorn and staghorn corals is 
limited in some areas and absent in most locations studied. Compounding 
the difficulty of documenting sexual recruitment is the difficulty of 
visually distinguishing some sexual recruits from asexual recruits 
(Miller et al., 2007). Settlement of larvae or attachment of fragments 
is often unsuccessful, given limited amounts of appropriate habitat due 
to the shift in benthic community structure from coral-dominated to 
algae-dominated that has been documented since the 1980s (Hughes and 
Connell, 1999). Appropriate habitat for elkhorn and staghorn coral 
recruits to attach and grow consists of natural consolidated hard 
substrate. In addition to being limited, the availability of 
appropriate habitat for successful sexual and asexual reproduction is 
susceptible to becoming reduced further because of such factors as 
fleshy macroalgae overgrowing and preempting the space available for 
larval settlement, fragment reattachment, and recruitment. Similarly, 
sediment accumulating on suitable substrate impedes sexual and asexual 
reproductive success by preempting available substrate and smothering 
coral recruits. Also preempting space and exacerbating the effect of 
sedimentation is the presence of turf algae, which traps the sediment, 
leading to greater amounts of accumulations compared to bare substrate 
alone. As described above, features that will facilitate successful 
larval settlement and recruitment, and reattachment and recruitment of 
asexual fragments, are essential to the conservation of elkhorn and 
staghorn corals. Without successful recruits (both sexual and asexual), 
the species will not increase in abundance, distribution, and genetic 
diversity.
    Elkhorn and staghorn corals, like most corals, require natural 
consolidated hard substrate (i.e., attached, dead coral skeleton or 
hardbottom) for their larvae to settle or fragments to reattach. The 
type of substrate available directly influences settlement success and 
fragment survivorship. Lirman (2000) demonstrated this in a transplant 
experiment using elkhorn coral fragments created by a ship grounding. 
Fifty fragments were collected within 24 hours of fragmentation and 
assigned to one of the following four types of substrate: (1) 
hardbottom (consolidated carbonate framework), (2) rubble (loose, dead 
pieces of elkhorn and staghorn corals), (3) sand, and (4) live coral. 
The results showed that the survivorship of transplanted fragments was 
significantly affected by the type of substrate, with fragment 
mortality being the greatest for those transplanted to sandy bottom (58 
percent loss within the first month and 71 percent after 4 months). 
Fragments placed on live adult elkhorn coral colonies fused to the 
underlying tissue and did not experience any tissue loss; and fragments 
placed on rubble and hardbottom substrates showed high survivorship.
    Unlike fragments, coral larvae cannot attach to living coral 
(Connell et al., 1997). Larvae can settle and attach to dead coral 
skeleton (Jordan-Dahlgren, 1992; Bonito and Grober-Dunsmore, 2006) and 
may settle in particular areas in response to chemical cues from 
certain species of crustose coralline algae (CCA) (Morse et al., 1996; 
Heyward and Negri, 1999; Harrington and Fabricius, 2004). The recent 
increase in the dominance of fleshy macroalgae as major space-occupiers 
on many Caribbean coral reefs impedes the recruitment of new corals. 
This shift in benthic community structure (from the dominance of stony 
corals to that of fleshy algae) on Caribbean coral reefs is generally 
attributed to the greater persistence of fleshy macroalgae under 
reduced grazing regimes due to human overexploitation of herbivorous 
fishes (Hughes, 1994) and the regional mass mortality of the 
herbivorous long-spined sea urchin in 1983-84. Further, impacts to 
water quality (principally nutrient input) coupled with low herbivore 
grazing are also believed to enhance fleshy macroalgal productivity. 
Fleshy macroalgae are able to colonize dead coral skeleton and other 
available substrate, preempting space available for coral recruitment.
    The persistence of fleshy macroalgae under reduced grazing regimes 
has impacts on CCA growth, which may reduce settlement of coral larvae, 
as CCA is thought to provide chemical cues for settlement. Most CCA are 
susceptible to fouling by fleshy algae, particularly when herbivores 
are absent (Steneck, 1986). Patterns observed in St. Croix, U.S.V.I., 
also indicate a strong positive correlation between CCA abundance and 
herbivory (Steneck,

[[Page 72225]]

1997). A study in which Miller et al. (1999) used cages to exclude 
large herbivores from the study site resulted in increased cover of 
both turf algae and macroalgae, and cover of CCA decreased. The 
response of CCA to the experimental treatment persisted for 2 months 
following cage removal (Miller et al., 1999). Additionally, following 
the mass mortality of the urchin Diadema antillarum, significant 
increases in cover of fleshy and filamentous algae occurred with 
parallel decreases in cover of CCA (de Ruyter van Steveninck and Bak, 
1986; Liddel and Ohlhorst, 1986). The ability of fleshy macroalgae to 
affect growth and survival of CCA has indirect, yet important, impacts 
on the ability of coral larvae to successfully settle and recruit.
    Several studies show that coral recruitment tends to be greater 
when algal biomass is low (Rogers et al., 1984; Hughes, 1985; Connell 
et al., 1997; Edmunds et al., 2004; Birrell et al., 2005; Vermeij, 
2006). In addition to preempting space for coral larvae settlement, 
many fleshy macroalgae produce secondary metabolites with generalized 
toxicity, which also may inhibit settlement of coral larvae (Kuffner 
and Paul, 2004; Kuffner, 2006). Furthermore, algal turfs can trap 
sediments (Eckman et al., 1989; Kendrik, 1991; Steneck, 1997; Purcell, 
2000; Nugues and Roberts, 2003; Wilson et al., 2003; Purcell and 
Bellwood, 2001), which then creates the potential for algal turfs and 
sediments to act in combination to hinder coral settlement (Nugues and 
Roberts, 2003; Birrell et al., 2005). These turf algae sediment mats 
also can suppress coral growth under high sediment conditions (Nugues 
and Roberts, 2003) and may gradually kill the marginal tissues of stony 
corals with which they come into contact (Dustan, 1977, 1999, as cited 
by Roy, 2004).
    Sediments enter the reef environment through many processes that 
are natural or anthropogenic in origin, including erosion of coastline, 
resuspension of bottom sediments, terrestrial run-off, and nearshore 
dredging for coastal construction projects and navigation purposes. The 
rate of sedimentation affects reef distribution, community structure, 
growth rates, and coral recruitment (Dutra et al., 2003). Accumulation 
of sediment can smother living corals, dead coral skeleton, and exposed 
hard substrate. Sediment accumulation on dead coral skeletons and 
exposed hard substrate reduces the amount of available substrate 
suitable for coral larvae settlement and fragment reattachment (Rogers, 
1990; Babcock and Smith, 2002). Accumulation of sediments is also a 
major cause of mortality in coral recruits (Fabricius et al., 2003). In 
some instances, if mortality of coral recruits does not occur under 
heavy sediment conditions, then settled coral planulae may undergo 
reverse metamorphosis and not survive (Te, 1992). Sedimentation, 
therefore, impacts the health and survivorship of all life stages 
(i.e., fecund adults, fragments, larvae, and recruits) of elkhorn and 
staghorn corals.
    Based on the key conservation objective we have identified to date, 
the natural history of elkhorn and staghorn corals, and their habitat 
needs, the physical or biological feature of elkhorn and staghorn 
corals' habitat essential to their conservation is substrate of 
suitable quality and availability to support successful larval 
settlement and recruitment, and reattachment and recruitment of 
fragments. For purposes of this definition, ``substrate of suitable 
quality and availability'' means natural consolidated hard substrate or 
dead coral skeleton that is free from fleshy or turf macroalgae cover 
and sediment cover. This feature is essential to the conservation of 
these two species due to the extremely limited recruitment currently 
being observed.
    We determined that no other facets of the environment are 
appropriate or necessary for defining critical habitat for the two 
corals. Other than the substrate essential feature, we cannot conclude 
there is any other sufficiently definable feature of the environment 
that is essential to the corals' conservation. Water temperature and 
other aspects of water quality are more appropriately viewed as sources 
of impacts or stressors that can harm the corals, rather than habitat 
features that provide a conservation function. These stressors would 
therefore be analyzed as factors that may contribute to a jeopardy 
determination pursuant to section 7 of the ESA, rather than to a 
determination whether the corals' critical habitat is likely to be 
destroyed or adversely modified. Some environmental features are also 
subsumed within the definition of the substrate essential feature; for 
instance, substrate free from fleshy or turf macroalgal cover would 
encompass water quality sufficiently free of nutrients.

Specific Areas Within the Geographical Area Occupied by the Species

    The definition of critical habitat further instructs us to identify 
specific areas on which are found the physical or biological features 
essential to the species' conservation. Our regulations state that 
critical habitat will be defined by specific limits using reference 
points and lines on standard topographic maps of the area, and 
referencing each area by the State, county, or other local governmental 
unit in which it is located (50 CFR 424.12(c)). As discussed below, we 
determined that specific areas in FGBNMS and Navassa National Wildlife 
Refuge that contain the essential feature do not otherwise meet the 
definition of critical habitat. Hence, in this section we only describe 
our identification of the specific areas we included in this 
designation.
    In addition to information obtained from the public, we partnered 
with SEFSC, NOAA Biogeography Team, and U.S. Geological Survey to 
obtain GIS and remote sensing data (e.g., benthic habitat data, water 
depth) to compile existing data to identify and map areas that may 
contain the identified essential feature. NOAA's National Ocean Service 
(NOS) and the Florida Fish and Wildlife Research Institute completed 
The Benthic Habitat Mapping of Florida Coral Reef Ecosystems using a 
series of 450 aerial photographs collected in 1991-1992. For this 
mapping effort, coral ecosystem ecologists outlined the boundaries of 
specific habitat types by interpreting color patterns on the 
photographs. Benthic habitats were classified into four major 
categories - corals, seagrasses, hardbottom, and bare substrate - and 
24 subcategories, such as sparse seagrass and patch reef. Each habitat 
type was groundtruthed in the field by divers to validate the photo-
interpretation of the aerial photography. Habitat boundaries were 
georeferenced and digitized to create computer maps. A similar method 
was followed by NOS using 1999 aerial imagery in developing the Benthic 
Habitat Mapping of Puerto Rico and the U.S.V.I.
    Using GIS software, we extracted all areas that could be considered 
potential recruitment habitat, including hardbottom and coral. The 
benthic habitat information assisted in identifying any major gaps in 
the distribution of the substrate essential feature. Given 
uncertainties in the age and resolution of the data, we were unable to 
identify smaller, discrete specific areas that contained the essential 
feature. We concluded that, based upon the best available information, 
although the essential feature is unevenly dispersed throughout the 
ranges of the species, all identified areas contained the essential 
feature. However, based upon information submitted during the public 
comment period, we were able to refine the proposed designation to 
remove gaps in the distribution of the essential feature and limit the 
final designation more precisely to areas that contain the essential 
feature.

[[Page 72226]]

    The areas eliminated are those nearshore surf zones along the 
southeast coast of Florida and the area between Boca Grande Key and the 
Dry Tortugas in Florida. We further limited the specific areas to the 
maximum depth of occurrence of the two corals (i.e., 30 m or 98 ft). 
The 98-ft (30 m) contour was extracted from the National Geophysical 
Data Center Coastal Relief Model for Puerto Rico & Virgin Islands, and 
Florida. Because Puerto Rico and the U.S.V.I. are islands, the contours 
yielded continuous closed polygons. However, because the two species 
only occur off specific counties in Florida, we used additional 
boundaries to close the polygons. As previously stated in the response 
to comments, the northern boundary of critical habitat was shifted 
south to Boynton Inlet, Palm Beach County (26[deg]32'42.5'' N) to more 
accurately reflect the occupied range of the species. Additionally, the 
nearshore surf zones of Palm Beach, Broward, and Miami-Dade Counties 
are areas with high sediment movement, suspension, and deposition 
levels. Hard substrate areas found within these nearshore surf zones 
are ephemeral in nature and are frequently covered by sand, thus not 
meeting the definition of the essential feature. Therefore, from 
Boynton Inlet, Palm Beach County, to Government Cut, Miami-Dade County, 
the inshore boundary of critical habitat is the 6-foot (1.8 m) contour. 
Government Cut was identified as the southernmost boundary of where 
there were no occurrences of either species in less than 6 feet (1.8 m) 
of water. There are occurrences of the species in less than 6 feet (1.8 
m) of water south of Government Cut, thus indicating that hydrodynamic 
conditions are suitable for recruitment. Therefore, from Government Cut 
south along the Florida Keys, the inshore boundary is the MLW line, the 
COLREGS line, or the South Atlantic Fishery Management Council 
boundary. These three boundaries together create a continuous line 
separating the marine waters of the South Atlantic from land, inshore 
waters, or the Gulf of Mexico. Lastly, as previously stated in the 
response to comments, the area between 82 W and 82[deg] 45' W longitude 
does not provide the essential feature and is omitted from the 
designation. The waters surrounding the Dry Tortugas, shallower than 98 
feet (30 m) and bounded on the east side by 82V 45' W longitude are 
included in the designation because both the species and essential 
feature are present. In all areas the seaward boundary is the 98-ft (30 
m) contour.
    Using the above procedure and consistent with our regulations (50 
CFR 424.12(c)), we identified four ``specific areas,'' including a few 
small adjacent areas separated from main areas by water depth greater 
than 98 ft (30 m), within the geographical area occupied by the species 
at the time of listing, that contain the essential feature. These areas 
comprise all waters in the depths of 98 ft (30 m) and shallower to: (1) 
the 6-ft (1.8 m) contour from Boynton Inlet, Palm Beach County, to 
Government Cut, Miami-Dade County; and the MLW line from Government Cut 
south to 82[deg] W longitude in Monroe Counties; and the MLW line 
surrounding the Dry Tortugas, Florida; (2) the MLW line in Puerto Rico 
and associated Islands; (3) the MLW line in St. John/St. Thomas, 
U.S.V.I.; and (4) the MLW line in St. Croix, U.S.V.I. (see maps).
    Within these specific areas, the essential feature consists of 
natural consolidated hard substrate or dead coral skeleton that are 
free from fleshy or turf macroalgae cover and sediment cover. The 
essential feature can be found unevenly dispersed throughout these four 
areas due to differential macroalgae coverage and naturally occurring 
unconsolidated sediment and seagrasses dispersed within the reef 
ecosystem. A larger number of smaller specific areas could not be 
identified because the submerged nature of the essential feature, the 
limits of available information on the distribution of the essential 
feature, and limits on mapping methodologies make it infeasible to 
define the specific areas containing the essential feature more finely 
than described herein. Further, based on data about their historical 
distributions, the corals are capable of successfully recruiting and 
attaching to available substrate anywhere within the boundaries of the 
four specific areas. Given these species' reduced abundances, the four 
specific areas were identified to include all available potential 
settling substrate within the 98-ft (30 m) contour to maximize the 
potential for successful recruitment and population growth.
    Natural sites covered with loose sediment, fleshy or turf 
macroalgal covered hard substrate, or seagrasses do not provide the 
essential feature for elkhorn and staghorn corals. Additionally, all 
existing (meaning constructed at the time of this critical habitat 
designation) federally authorized or permitted man-made structures such 
as aids-to-navigation (ATONs), artificial reefs, boat ramps, docks, 
pilings, channels, or marinas do not provide the essential feature that 
is essential to the species' conservation. Substrates within the 
critical habitat boundaries that do not contain the essential feature 
are not part of the designation. Federal actions, or the effects 
thereof, limited to these areas do not trigger section 7 consultation 
under the ESA for coral critical habitat, unless they may affect the 
essential feature in adjacent critical habitat. As discussed here and 
in the supporting impacts analysis, given the precise definition of the 
essential feature, determining whether an action may affect the feature 
can be accomplished without entering into an ESA section 7 
consultation.

Unoccupied Areas

    ESA section 3(5)(A)(ii) further defines critical habitat to include 
specific areas outside the geographical area occupied if the areas are 
determined by the Secretary to be essential for the conservation of the 
species. Regulations at 50 CFR 424.12(e) specify that we shall 
designate as critical habitat areas outside the geographical area 
presently occupied by a species only when a designation limited to its 
present range would be inadequate to ensure the conservation of the 
species. At the present time, the range of these species has not been 
constricted, and we have not identified any areas outside the 
geographical area occupied by the species that are essential for their 
conservation. Therefore, we did not designate any unoccupied areas for 
elkhorn and staghorn corals.

Special Management Considerations or Protection

    Specific areas within the geographical area occupied by a species 
may be designated as critical habitat only if they contain physical or 
biological features that ``may require special management 
considerations or protection.'' A few courts have interpreted aspects 
of this statutory requirement, and the plain language aids in its 
interpretation. For instance, the language clearly indicates the 
features, not the specific area containing the features, are the focus 
of the ``may require'' provision. Use of the disjunctive ``or'' also 
suggests the need to give distinct meaning to the terms ``special 
management considerations'' and ``protection.'' Generally speaking, 
``protection'' suggests actions to address a negative impact or threat 
of a negative impact. ``Management'' seems plainly broader than 
protection, and could include active manipulation of a feature or 
aspects of the environment. Two Federal district courts, focusing on 
the term ``may,'' ruled that features can meet this provision based on 
either present requirements for special management considerations or

[[Page 72227]]

protections, or on possible future requirements. See Center for Biol. 
Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003); Cape 
Hatteras Access Preservation Alliance v. DOI, 344 F. Supp. 108 (D.D.C. 
2004). The Arizona district court ruled that the provision cannot be 
interpreted to mean that features already covered by an existing 
management plan must be determined to require ``additional'' special 
management, because the term ``additional'' is not in the statute. 
Rather, the court ruled that the existence of management plans may be 
evidence that the features in fact require special management. Center 
for Biol. Diversity v. Norton, 1096-1100. NMFS' regulations define 
``special management considerations or protections'' to mean ``any 
methods or procedures useful in protecting physical and biological 
features of the environment for the conservation of listed species'' 
(50 CFR 424.02(j)).
    Based on the above, we evaluated whether the essential feature may 
require special management considerations or protections by evaluating 
four criteria:
    (a) Whether there is presently a need to manage the feature;
    (b) Whether there is the possibility of a need to manage the 
feature;
    (c) Whether there is presently a negative impact on the feature; or
    (d) Whether there is the possibility of a negative impact on the 
feature.
    In evaluating present or possible future management needs for the 
essential feature, we recognized that the feature in its present 
condition must be the basis for a finding that it is essential to the 
corals' conservation. In addition, the needs for management evaluated 
in (a) and (b) were limited to managing the feature for the 
conservation of the species. In evaluating whether the essential 
feature meets either criterion (c) or (d), we evaluated direct and 
indirect negative impacts from any source (e.g., human or natural). 
However, we only considered the criteria to be met if impacts affect or 
have the potential to affect the aspect of the feature that makes it 
essential to the conservation of the species. We then evaluated whether 
the essential feature met the ``may require'' provision separately for 
each of the four ``specific areas'' designated, as well as Navassa 
Island and FGBNMS (discussed later), as management and protection 
requirements can vary from area to area based on such factors as the 
legal authorities applicable to areas and the location of the area 
within the occupied range.
    Suitable habitat available for larval settlement and recruitment, 
and asexual fragment reattachment and recruitment of these coral 
species is particularly susceptible to impacts from human activity 
because of the shallow water depth range (less than 98 ft (30 m)) in 
which elkhorn and staghorn corals commonly grow. The proximity of this 
habitat to coastal areas subject this feature to impacts from multiple 
activities, including, but not limited to dredging and disposal 
activities, stormwater run-off, coastal and maritime construction, land 
development, wastewater and sewage outflow discharges, point and non-
point source pollutant discharges, fishing, placement of large vessel 
anchorages, and installation of submerged pipelines or cables. The 
impacts from these activities, combined with those from natural factors 
(e.g., major storm events), significantly affect the quality and 
quantity of available substrate for these threatened species to 
successfully sexually and asexually reproduce. We concluded that the 
essential feature is currently and will likely continue to be 
negatively impacted by some or all of these factors in all four 
specific areas.
    Overfishing of herbivorous fishes and the mass die-off of long-
spined sea urchin Diadema antillarum are considered two of the primary 
contributing factors to the recent shift in benthic community structure 
from the dominance of stony corals to that of fleshy macroalgae on 
Caribbean coral reefs. In the absence of fish and urchin grazing or at 
very low grazing pressures, coral larvae, algae, and numerous other 
epibenthic organisms settle in high numbers, but most young, developing 
coral larvae are rapidly outcompeted for space, and their mortality 
levels are high (Sammarco, 1985). The weight of evidence suggests that 
competition between algae and corals is widespread on coral reefs and 
is largely mediated by herbivory (McCook et al., 2001).
    An additional factor contributing to the dominance of fleshy 
macroalgae as major space-occupiers on many Caribbean coral reefs is 
nutrient enrichment. Nutrients are added to coral reefs from both point 
sources (readily identifiable inputs where pollutants are discharged to 
receiving surface waters from a pipe or drain) and non-point sources 
(inputs that occur over a wide area and are associated with particular 
land uses). Anthropogenic sources of nutrients include sewage, 
stormwater and agricultural runoff, river discharge, and groundwater; 
however, natural oceanographic sources like internal waves and 
upwelling also distribute nutrients on coral reefs. Coral reefs have 
been considered to be generally nutrient-limited systems, meaning that 
levels of accessible nitrogen and phosphorus limit the rates of 
macroalgae growth. When nutrient levels are raised in such a system, 
growth rates of fleshy macroalgae can be expected to increase, and this 
can yield imbalance and changes in community structure.
    The anthropogenic source routes for nutrients may also bring 
additional sediments into the coral reef environment. Sources of 
sediment include erosion of coastline, resuspension of bottom 
sediments, terrestrial run-off (following clearing of mangroves and 
deforestation of hillsides), beach renourishment, and nearshore 
dredging and disposal for coastal construction projects and for 
navigation purposes. Sediment deposition and accumulation affect the 
overall amount of suitable substrate available for larval settlement 
and recruitment, and fragment reattachment and recruitment (Babcock and 
Davies, 1991), and both sediment composition and deposition affect the 
survival of juvenile corals (Fabricius et al., 2003).
    A major category of habitat-related activities that may affect the 
essential feature for the two listed corals is water quality 
management. Activities within this category have the potential to 
negatively affect the essential feature for elkhorn and staghorn corals 
by altering the quality and availability of suitable substrate for 
larval settlement, recruitment, and fragment reattachment. Nutrient 
enrichment, via sewage, stormwater and agricultural runoff, river 
discharge, and groundwater, is a major factor contributing to this 
shift in benthic community structure and preemption of available 
substrate suitable for larval settlement, recruitment, and asexual 
fragment reattachment. Additionally, sedimentation resulting from land-
use practices and from dredging and disposal activities in all four 
specific areas reduces the overall availability and quality of 
substrate suitable for successful sexual and asexual reproduction by 
the two acroporid corals. Thus, the essential feature currently needs 
and will likely continue to need special management or protection.
    Although they fall within U.S. jurisdiction and may contain the 
essential feature, we are not including FGBNMS and Navassa National 
Wildlife Refuge in our critical habitat designation because we do not 
believe the essential feature in these areas requires special 
management considerations or protections. Both

[[Page 72228]]

FGBNMS and Navassa Island are remote marine protected areas and are not 
currently exposed to the negative impacts and conditions affecting the 
essential feature discussed for the other areas above. Additionally, 
based on available information, we do not expect the essential feature 
found within these two protected areas to experience negative impacts 
from human or natural sources that would diminish the feature's 
conservation value to the two coral species.

Activities That May be Affected

    Section 4(b)(8) of the ESA requires that we describe briefly and 
evaluate, in any proposed or final regulation to designate critical 
habitat, those activities that may destroy or adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect critical habitat and, when carried out, funded, 
or authorized by a Federal agency, require an ESA section 7 
consultation. These are discussed at length in the Final 4(b)(2) Report 
and summarized below. Such activities include, but are not limited to, 
dredging and disposal, beach renourishment, large vessel anchorages, 
submarine cable/pipeline installation and repair, oil and gas 
exploration, pollutant discharge, and oil spill prevention and 
response. Notably, all the activities identified that may affect the 
critical habitat may also affect the species themselves, if present 
within the action area of a proposed Federal action.
    We believe this critical habitat designation provides Federal 
agencies, private entities, and the public with clear notification of 
critical habitat for elkhorn and staghorn corals and the boundaries of 
the habitat. This designation allows Federal agencies and others to 
evaluate the potential effects of their activities on critical habitat 
to determine if ESA section 7 consultation with NMFS is needed, given 
the specific definition of the essential feature above. Consistent with 
recent agency guidance on conducting adverse modification analyses 
(NMFS, 2005), at the time of consultation we will apply the statutory 
provisions of the ESA, including those in section 3 that define 
``critical habitat'' and ``conservation,'' to determine whether a 
proposed action is likely to result in the destruction or adverse 
modification of critical habitat.

Application of ESA Section 4(a)(3)(B)(i)

    Section 4(a)(3)(B) prohibits designating as critical habitat any 
lands or other geographical areas owned or controlled by the DOD, or 
designated for its use, that are subject to an INRMP, if we determine 
that such a plan provides a benefit to the coral species (16 U.S.C. 
1533(a)(3)(B)). The legislative history to this provision explains:
    The conferees would expect the [Secretary] to assess an INRMP's 
potential contribution to species conservation, giving due regard to 
those habitat protection, maintenance, and improvement projects and 
other related activities specified in the plan that address the 
particular conservation and protection needs of the species for which 
critical habitat would otherwise be proposed. Consistent with current 
practice, the Secretary would establish criteria that would be used to 
determine if an INRMP benefits the listed species for which critical 
habitat would be proposed (Conference Committee report, 149 Cong. Rec. 
H. 10563; November 6, 2003).
    At the time of the proposed designation, no areas within the 
specific areas proposed for designation were covered by relevant 
INRMPs. Since the publication of the proposed designation, NASKW 
finalized an updated INRMP. The NASKW INRMP covers the lands and waters 
- generally out to 50 yards (45.7 m) - adjacent to NASKW, including 
several designated restricted areas. As detailed in Appendix C of the 
INRMP, the plan provides benefits to elkhorn and staghorn corals 
through the following NASKW programs and activities: (1) erosion 
control; (2) Boca Chica Clean Marina Designation; (3) stormwater 
quality improvements; and (4) wastewater treatment. These activities 
provide a benefit to the species and the identified essential feature 
in the critical habitat designation by reducing sediment and nutrient 
discharges into nearshore waters, and this addresses the particular 
conservation and protection needs that critical habitat will afford. 
Further, the INRMP includes provisions for monitoring and evaluation of 
conservation effectiveness, which will ensure continued benefits to the 
species. On June 26, 2008, we determined that the INRMP provides a 
benefit to the two corals as described above. Thus, we are not 
designating critical habitat within the boundaries covered by the INRMP 
pursuant to Section 4(a)(3)(B) of the ESA.

Application of ESA Section 4(b)(2)

    The foregoing discussion described the specific areas within U.S. 
jurisdiction that fall within the ESA section 3(5) definition of 
critical habitat in that they contain the physical feature essential to 
the corals' conservation that may require special management 
considerations or protection. Before including areas in a designation, 
section 4(b)(2) of the ESA requires the Secretary to take into 
consideration the economic impact, impact on national security, and any 
other relevant impacts of designation of any particular area. 
Additionally, the Secretary has the discretion to exclude any area from 
designation if he determines the benefits of exclusion (that is, 
avoiding some or all of the impacts that would result from designation) 
outweigh the benefits of designation based upon the best scientific and 
commercial data available. The Secretary may not exclude an area from 
designation if exclusion will result in the extinction of the species. 
Because the authority to exclude is discretionary, exclusion is not 
required for any particular area under any circumstances.
    The analysis of impacts below summarizes the comprehensive analysis 
contained in our Final Section 4(b)(2) Report, first by considering 
economic, national security, and other relevant impacts that we 
projected would result from including each of the four specific areas 
in the critical habitat designation. This consideration informed our 
decision on whether to exercise our discretion to exclude particular 
areas from the designation. Both positive and negative impacts were 
identified and considered (these terms are used interchangeably with 
benefits and costs, respectively). Impacts were evaluated in 
quantitative terms where feasible, but qualitative appraisals were used 
where that is more appropriate to particular impacts.
    The ESA does not define what ``particular areas'' means in the 
context of section 4(b)(2), or the relationship of particular areas to 
``specific areas'' that meet the statute's definition of critical 
habitat. As there was no biological basis to subdivide the four 
specific critical habitat areas into smaller units, we treated these 
areas as the ``particular areas'' for our initial consideration of 
impacts of designation.

Impacts of Designation

    The primary impacts of a critical habitat designation result from 
the ESA section 7(a)(2) requirement that Federal agencies ensure their 
actions are not likely to result in the destruction or adverse 
modification of critical habitat. Determining these impacts is 
complicated by the fact that section 7(a)(2) also requires that Federal 
agencies ensure their actions are not likely to jeopardize the species' 
continued existence. One incremental impact of designation is the 
extent to which Federal agencies modify their proposed actions to 
ensure they are not

[[Page 72229]]

likely to destroy or adversely modify the critical habitat beyond any 
modifications they would make because of listing and the jeopardy 
requirement. When a modification would be required due to impacts to 
both the species and critical habitat, the impact of the designation 
may be co-extensive with the ESA listing of the species. Additional 
impacts of designation include state and local protections that may be 
triggered as a result of designation, and positive impacts that may 
arise from conservation of the species and their habitat, and education 
of the public to the importance of an area for species conservation.
    A Final ESA 4(b)(2) Report describes the impacts analysis in detail 
(NMFS, 2008). The only substantive changes made to the Final Report in 
response to public comments are in the section regarding not 
designating critical habitat on DOD lands pursuant to 4(a)(3)(B) and 
the national security exclusions. The report describes the projected 
future Federal activities that would trigger ESA section 7 consultation 
requirements because they may affect the essential feature. 
Additionally, the report describes the project modifications we 
identified that may reduce impacts to the essential feature, and states 
whether the modifications are more likely to be solely a result of the 
critical habitat designation or co-extensive with another regulation, 
including the ESA listing of the species. The report also identifies 
the potential national security and other relevant impacts that may 
arise due to the critical habitat designation. This report is available 
on NMFS' Southeast Region website at http://sero.nmfs.noaa.gov/pr/esa/Acropora.htm.

Economic Impacts

    As discussed above, economic impacts of the critical habitat 
designation result through implementation of section 7 of the ESA in 
consultations with Federal agencies to ensure their proposed actions 
are not likely to destroy or adversely modify critical habitat. These 
economic impacts may include both administrative and project 
modification costs. Economic impacts that may be associated with the 
conservation benefits of the designation are described later.
    Because elkhorn and staghorn corals are newly listed and we lack a 
lengthy consultation history for these species, we needed to make 
assumptions about the types of future Federal activities that might 
require section 7 consultation under the ESA. We examined the 
consultation record over the last 10 years, as compiled in our Public 
Consultation Tracking System (PCTS) database, to identify types of 
Federal activities that have the potential to adversely affect elkhorn 
or staghorn coral critical habitat. We identified 13 categories of 
activities conducted by 7 Federal action agencies: Airport repair and 
construction; anchorages; construction of new aids to navigation; beach 
renourishment and bank stabilization; coastal construction; discharges 
to navigable waters; dredging and disposal; fishery management; 
maintenance construction; maintenance dredging and disposal; military 
installation management; resource management; and development or 
modification of water quality standards. Notably, all categories of 
projected future actions that may trigger consultation because they 
have the potential to adversely affect the essential feature also have 
the potential to adversely affect the corals themselves. There are no 
categories of activities that would trigger consultation on the basis 
of the critical habitat designation alone. However, it is feasible that 
a specific future project within a category of activity would have 
impacts on critical habitat but not on the species. Because the total 
surface area covered by the essential feature (although unquantified) 
is far larger than the total surface area on which the corals (again 
unquantified) currently occur, it is likely there will be more 
consultations with impacts on critical habitat than on the species. 
Nonetheless, it was impossible to determine how many of those projects 
there may be over the 10-year horizon of our impacts analysis.
    To avoid underestimating impacts, we assumed that all of the 
projected future actions in these categories will require formal 
consultations for estimation of both administrative and project 
modification costs. This assumption likely results in an overestimation 
of the number of future formal consultations.
    We next considered the range of modifications we might seek for 
these activities to avoid adverse modification of elkhorn and staghorn 
coral critical habitat. We identified 13 potential project 
modifications that we may require to reduce impacts to the essential 
feature through section 7 consultation under the ESA. To be 
conservative in estimating impacts, we assumed that project 
modifications would be required to address adverse effects from all 
projected future agency actions requiring consultation. Although we 
made the assumption that all potential project modifications would be 
required by NMFS, not all of the modifications identified for a 
specific category of activity would be necessary for an individual 
project, so we were unable to identify the exact modification or 
combinations of modifications that would be required for all future 
actions.
    We also identified whether a project modification would be required 
due to the listing of the species or another existing regulatory 
authority to determine if the cost of the project modification was 
likely to be co-extensive or incremental. Several project modifications 
(i.e., conditions monitoring, diver education, horizontal directional 
drilling (HDD), tunneling or anchoring cables and pipelines, sediment 
control measures, fishing gear maintenance, and water quality standard 
modification) were characterized as fully co-extensive with the listing 
of the species or other existing statutory or regulatory authority, 
because the nature of the actions that would require these 
modifications typically involve a large action area likely to include 
both the essential feature and either the listed corals or other coral 
reef resources. Other project modifications (i.e., project relocation, 
diver assisted anchoring or mooring buoy use, global positioning system 
(GPS) and dynamic positioning vessel (DPV) protocol, sand bypassing/
backpassing, shoreline protection measures, and use of upland or 
artificial sources of sand) were characterized as partially co-
extensive with the listing of the species or other existing statutory 
or regulatory authority such as the CWA because of the typically 
smaller action area of projects that would involve these modifications, 
and thus the greater likelihood that specific projects would impact 
only the essential feature. We did not identify any project 
modification that we expected would result in fully incremental costs 
due to the critical habitat designation.
    Table 1 provides a summary of the estimated costs, where possible, 
of individual project modifications. The Final ESA 4(b)(2) Report 
provides a detailed description of each project modification, methods 
of determining estimated costs, and actions for which it may be 
prescribed. Although we have a projection of the number of future 
formal consultations (albeit an overestimation), the lack of 
information on specific project designs limits our ability to forecast 
the exact type and amount of modifications required. Thus, while the 
costs associated with types of project modifications were 
characterized, no total cost of this rule could be quantified.

[[Page 72230]]



      Table 1. Summary of potential per-project costs associated with specific project modifications. Where
                            information was available, ranges of scopes are included.
----------------------------------------------------------------------------------------------------------------
                                                                                              Approx. Totals per
     Project Modification              Cost                 Unit                Range               Project
----------------------------------------------------------------------------------------------------------------
Fully Co-extensive             ...................  ...................  ...................  ..................
----------------------------------------------------------------------------------------------------------------
Conditions Monitoring          $3.5-6K              per day              1-400 days           $3.5K - 2.4M
----------------------------------------------------------------------------------------------------------------
Diver Education                Administrative cost  n/a                  n/a                  n/a
----------------------------------------------------------------------------------------------------------------
HDD/Tunneling                  $1.39 -2.44M         per mile             0.2 - 31.5 miles     $278K -76.9M
----------------------------------------------------------------------------------------------------------------
Fishing Gear Maintenance       Cost of gas and      n/a                  n/a                  n/a
                                time to retrieve
                                traps.
                               Ultimately a
                                potential cost
                                savings of
                                reduction in lost
                                traps.
----------------------------------------------------------------------------------------------------------------
Pipe Collars/Cable Anchoring   $1,200               per anchor           13 - 2,529 anchors   $15.6K - 3M
----------------------------------------------------------------------------------------------------------------
Sediment and Turbidity         -$43K                per mile             0.05 - 7 miles       $2-301K
----------------------------------------------------------------------------------------------------------------
Control Measures               ...................  ...................  ...................  ..................
----------------------------------------------------------------------------------------------------------------
Water Quality Standard         Undeterminable       n/a                  n/a                  n/a
 Modification
----------------------------------------------------------------------------------------------------------------
Partially Co-extensive         ...................  ...................  ...................  ..................
----------------------------------------------------------------------------------------------------------------
Project Relocation             Undeterminable       n/a                  n/a                  n/a
----------------------------------------------------------------------------------------------------------------
Diver Assisted Anchoring/      $300-1000            per day              n/a                  n/a
 Mooring Buoy Use
----------------------------------------------------------------------------------------------------------------
GPS and DPV protocol           Undeterminable       n/a                  n/a                  n/a
----------------------------------------------------------------------------------------------------------------
Sand Bypassing/Backpassing     $1.5-16K             per cu yd            75-512K cu yds       $113K-8.1M
----------------------------------------------------------------------------------------------------------------
Shoreline Protection Measures  Undeterminable but   n/a                  n/a                  n/a
 to Reduce Frequency of Beach   ultimately a
 Nourishment Events             potential cost
                                savings
----------------------------------------------------------------------------------------------------------------
Upland or Artificial Sources   Undeterminable       n/a                  n/a                  n/a
 of Sand
----------------------------------------------------------------------------------------------------------------

    In addition to project modification costs, administrative costs of 
consultation will be incurred by Federal agencies and project 
permittees or grantees as a result of this designation. Estimates of 
the cost of an individual consultation were developed from a review and 
analysis of the consultation database, as previously discussed, and 
from the estimated ESA section 7 consultation costs identified in the 
Economic Analysis of Critical Habitat Designation for the Gulf Sturgeon 
(IEc, 2003) inflated to 2007 dollars. In the proposed rule and Draft 
4(b)(2) Report, costs were reported in 2006 dollars because the 2007 
coefficient was not known. Cost figures are based on an average level 
of effort for consultations of low or high complexity (based on NMFS 
and other Federal agency information), multiplied by the appropriate 
labor rates for NMFS and other Federal agency staff. Although the 
essential feature occurs in greater abundance than the corals and thus 
the probability that a consultation would be required because of the 
critical habitat designation is higher than for the listing of corals, 
we were unable to estimate the number of consultations that may be 
required on the basis of critical habitat alone. Therefore, we present 
the estimated maximum incremental administrative costs as averaging 
$843,223 to $1,664,824, annually. While the total area of the critical 
habitat designation has been reduced due to the modifications we have 
made to the boundaries, the data used in the projection of number of 
consultations can not be reduced from what was presented in the 
proposed rule. The smallest unit for which the consultation data exist 
is at the county level. No counties were removed from critical habitat 
based on our boundary revisions. Thus, our administrative cost 
estimates are not modified from the proposed rule.

National Security Impacts

    Previous critical habitat designations have recognized that impacts 
to national security result if a designation would trigger future ESA 
section 7 consultations because a proposed military activity ``may 
affect'' the physical or biological feature(s) essential to the listed 
species' conservation. Anticipated interference with mission-essential 
training or testing or unit readiness, either through delays caused by 
the consultation process or through expected requirements to modify the 
action to prevent adverse modification of critical habitat, has been 
identified as a negative impact of critical habitat designations.

[[Page 72231]]

(See, e.g., Proposed Designation of Critical Habitat for the Pacific 
Coast Population of the Western Snowy Plover, 71 FR 34571, June 15, 
2006, at 34583; and Proposed Designation of Critical Habitat for 
Southern Resident Killer Whales; 69 FR 75608, Dec. 17, 2004, at 75633)
    These same past designations have also recognized that whether 
national security impacts result from the designation depends on 
whether future consultations would be required under the jeopardy 
standard regardless of the critical habitat designation, and whether 
the critical habitat designation would add new burdens beyond those 
related to the jeopardy consultation.
    As discussed above, based on the past 10-year consultation history, 
it is likely that consultations with respect to activities on DOD 
facilities will be triggered as a result of the critical habitat 
designation. Further, it is possible that some consultations will be 
due to the presence of the essential feature alone, and that adverse 
modification of the essential feature could result, thus requiring a 
reasonable and prudent alternative to the proposed DOD activity.
    On May 22, 2007, we sent a letter to DOD requesting information on 
national security impacts of the proposed critical habitat designation, 
and received a response from the Department of the Navy (Navy). Further 
discussions and correspondence identified NASKW as the only 
installation potentially affected by the critical habitat designation. 
However, as discussed above, critical habitat is no longer being 
designated within the boundaries of NASKW pursuant to 4(a)(3)(B) 
because this facility is covered by an appropriate INRMP. During the 
public comment period, the Navy added the RAA off Dania, Florida, as an 
installation likely to be impacted by this designation. The Dania RAA 
overlays with the Florida specific area of critical habitat (Area 1). 
No other DOD installations were identified as likely to be impacted by 
this designation.
    The Navy determined activities within the Dania RAA would be 
adversely impacted by requirements to modify the actions to avoid 
destroying or adversely modifying critical habitat. The Dania RAA 
contains underwater cables that enable real-time data acquisition from 
Navy sensor systems used in Navy exercises. The Navy concluded that the 
critical habitat designation at the Dania RAA would likely impact 
national security by diminishing military readiness through the 
requirement to consult on their activities within critical habitat in 
addition to the requirement to consult on the two listed corals. We 
discuss our exclusion analysis based on these national security impacts 
below.

Other Relevant Impacts

    Past critical habitat designations have identified two broad 
categories of other relevant impacts: conservation benefits, both to 
the species and to society as a result of designation, and impacts on 
governmental or private entities that are implementing existing 
management plans that provide benefits to the listed species. Our Final 
Section 4(b)(2) Report discusses conservation benefits of designating 
the four specific areas to the corals, and the benefits of conserving 
the corals to society, in both ecological and economic metrics.
    As summarized in the Final 4(b)(2) Report, elkhorn and staghorn 
corals currently provide a range of important uses and services to 
society. Because the features that form the basis of the critical 
habitat are essential to, and thus contribute to, successful 
conservation of the two listed corals, protection of critical habitat 
from destruction or adverse modification may, at minimum, prevent 
further loss of the benefits currently provided by the species. 
Moreover, because the essential feature is essential to increasing the 
abundance of elkhorn and staghorn corals, its successful protection may 
actually contribute to an increase in the benefits of these species to 
society in the future. While we cannot quantify nor monetize the 
benefits, we believe they are not negligible and would be an 
incremental benefit of this designation. However, although the 
essential feature is key to the corals' conservation, critical habitat 
designation alone will not bring about their recovery. The benefits of 
conserving elkhorn and staghorn coral are, and will continue to be, the 
result of several laws and regulations.
    Elkhorn and staghorn corals are two of the major reef-building 
corals in the Caribbean. Over the last 5,000 years, they have made a 
major contribution to the structure that makes up the Caribbean reef 
system. The structural and ecological roles of Atlantic acroporids in 
the Caribbean are unique and cannot be filled by other reef-building 
corals in terms of accretion rates and the formation of structurally 
complex reefs. At current levels of acroporid abundance, this ecosystem 
function is significantly reduced. Due to elkhorn and staghorn corals' 
extremely reduced abundance, it is likely that Caribbean reefs are in 
an erosional, rather than accretional, state.
    In addition to the important functions of reef building and reef 
maintenance provided by elkhorn and staghorn corals, these species 
themselves serve as fish habitat (Ogden and Ehrlich, 1977; Appeldoorn 
et al., 1996), including essential fish habitat (CFMC, 1998), for 
species of economic and ecological importance. Specifically, Lirman 
(1999) reported significantly higher abundances of grunts (Haemulidae), 
snappers (Lutjanidae), and sweepers (Pempheridae) in areas dominated by 
elkhorn coral compared to other coral sites, suggesting that fish 
schools use elkhorn colonies preferentially. Additionally, Hill (2001) 
found that staghorn coral in a Puerto Rican back-reef lagoon was the 
preferred settlement habitat for the white grunt (Haemulon plumieri). 
Numerous reef studies have also described the relationship between 
increased habitat complexity and increased species richness, abundance, 
and diversity of fishes. Due to their branching morphologies, elkhorn 
and staghorn corals provide complexity to the coral reef habitat that 
other common species with mounding or plate morphologies do not 
provide.
    Another benefit of elkhorn and staghorn corals is provided in the 
form of shoreline protection. Again, due to their function as major 
reef building species, elkhorn and staghorn corals provide shoreline 
protection by dissipating the force of waves, which are a major source 
of erosion and loss of land (NOAA, 2005). For example, in 2005, the 
coast of Mexico north of Cancun was impacted by Hurricane Wilma; wave 
height recorded just offshore of the barrier reef was 11 m while wave 
height at the coast was observed to be 3 m (B. van Tussenbroek, pers. 
comm.). Damage to coastal structures would have been significantly 
greater had the 11-m waves not been dissipated by the reef.
    Lastly, numerous studies have identified the economic value of 
coral reefs to tourism and recreation. Of particular relevance, Johns 
et al. (2003) estimated the value of natural reefs to reef users, and 
the contribution of natural reefs to the economies of the four counties 
of Florida that are associated with the designation (discussed below). 
The importance of the benefits elkhorn and staghorn corals provide is 
also evidenced by the designation of marine protected areas 
specifically for the protection of these species (e.g., Tres Palmas 
Reserve, Puerto Rico).
    Many previous designations have evaluated the impacts of 
designation on relationships with, or the efforts of, private and 
public entities that are involved in management or conservation efforts 
benefitting listed

[[Page 72232]]

species. Similar to national security impacts, impacts on entities 
responsible for natural resource management or conservation plans that 
benefit listed species, or on the functioning of those plans, depend on 
the type and number of ESA section 7 consultations and potential 
project modifications that may result from the critical habitat 
designation in the areas covered by the plans. Several existing 
resource management areas (Florida Keys National Marine Sanctuary, Dry 
Tortugas National Park, Dry Tortugas Ecological Reserve, Biscayne Bay 
National Park, Buck Island Reef National Monument, Virgin Islands 
National Park, and Virgin Islands Coral Reef National Monument) will 
likely require section 7 consultation under the ESA in the future when 
the responsible Federal agencies revise their management plans or 
associated regulations or implement management actions. Negative 
impacts to these agencies could result if the designation interferes 
with their ability to provide for the conservation of the species or 
otherwise hampers management of these areas. Because we identified that 
resource management was a category of activities that may affect both 
the species and the critical habitat and that the project modifications 
required through section 7 consultation would be the same for the 
species and the essential feature, these costs are considered to be 
coextensive. However, we found no evidence that relationships would be 
negatively affected or that negative impacts to other agencies' ability 
to provide for the conservation of the corals would result from the 
designation. We also describe in our final 4(b)(2) report that the 
critical habitat designation will provide an important unique benefit 
to the corals by protecting settling substrate for future coral 
recruitment and recovery, compared to existing laws and management 
plans for these areas that focus on protecting existing coral 
resources.

Synthesis of Impacts within the Four Specific Areas

    As discussed above, no categories of Federal actions would require 
consultation in the future solely due to the critical habitat 
designation; all projected categories of future actions have the 
potential to adversely affect both the essential feature and the listed 
corals. However, an individual action within these categories may 
ultimately result in impacts to only the essential feature because the 
species may not be present within the action area. In addition, past 
actions triggered consultation due to effects on one or more other 
listed species within the areas covered by the designation (e.g., sea 
turtles, smalltooth sawfish, Johnson's seagrass), but for purposes of 
the impacts analysis we assumed these other species consultations would 
not be co-extensive with consultations for the corals or the essential 
feature. For each of the specific areas, whether future consultations 
are incremental impacts of the critical habitat designation or are co-
extensive impacts of the listing or other legal authorities will depend 
on whether the listed corals or other coral species are in the action 
area. Based on the relative abundance of the essential feature and the 
listed corals, or all corals combined, there seems to be a higher 
likelihood that a future project could impact the essential feature 
alone and thus be an incremental impact of designation. On the other 
hand, projects with larger or diffuse action areas may have a greater 
likelihood of impacting both the essential feature and the corals, and 
the same modifications would alleviate both types of impacts, so the 
costs of these projects would more likely be co-extensive either with 
the listing or existing authorities focused on protecting coral reef 
resources.
    In the proposed rule, we related the proportion of consultations 
within each critical habitat area to the length of shoreline within 
that area. Upon review of the data used to calculate the length of 
shoreline, we discovered that the resolution of the individual 
shorelines between each critical habitat area are not comparable. Thus, 
we cannot use the shoreline data to evaluate whether or not an area 
will have disproportionate economic impacts.
    The Florida specific area of critical habitat (Area 1) will have 
the greatest number of ESA section 7 consultations resulting from the 
critical habitat designation over the next 10 years, 317 consultations, 
or, on average, 31 per year; the Puerto Rico specific area (Area 2) 
will have the second highest number of consultations, 115, or, on 
average, 11-12 per year; and the U.S.V.I. specific areas combined 
(Areas 3 and 4) will have the lowest number of consultations, 41, or, 
on average, 4 per year. This ranking of number of consultations by area 
(Florida>Puerto Rico>U.S.V.I) is also reflected in the ``by area'' 
ranking of population, total annual payroll, and annual payroll within 
the construction sector (which will likely be the most impacted sector 
of the economy). In all four specific areas COE-permitted marine 
construction activities comprise the largest number of projected future 
actions, in similar percentages across the areas (75 percent in Area 1; 
65 percent in Area 2; and 61 percent in Areas 3 and 4). Further, 
because we do know the exact location of future projects, we cannot 
identify patterns or clumping in the geographic distribution of future 
consultations and project modifications within any of the specific 
areas. Thus, we cannot identify any particular areas within the 
specific areas identified that are expected to incur a disproportionate 
share of the costs of designation. However, there is no evidence that 
any portion of any area is geographically predisposed to a greater 
number of section 7 consultations.
    As mentioned above, the majority of projected ESA section 7 
consultations in all four specific areas will be COE-authorized marine 
construction activities, and all of these could involve third-party 
permittees. Although we assumed all of these projects will require 
formal consultation due to effects on the essential feature and the 
corals to avoid underestimating ESA section 7 impacts, as discussed in 
our impacts report, it is unlikely that all of these projects will 
trigger consultation for either the essential feature or the corals, or 
that they would require modification to avoid adverse impacts. Though 
our database on past consultations is not complete, the data indicate 
that the majority of the projects in this category were residential 
dock construction, and, as such, would have been located in protected 
shorelines such as manmade canals where the essential feature and the 
corals are not routinely found. Even when these projects trigger 
consultation in the future, the project modifications that may be 
required as a result of the critical habitat designation may also be 
required by an existing regulatory authority, including the ESA listing 
of the two corals. Thus, if both the essential feature and corals are 
present, or if another regulatory authority would also require the 
project modification, the costs associated with these project 
modifications will be co-extensive. Many of the other categories of 
activities projected to occur in all four specific areas have the 
potential to have effects over larger, more diffuse action areas, and 
thus are more likely to be coextensive costs of the designation (e.g., 
dredging projects, water discharge, and water quality regulatory 
projects).
    We estimated the maximum incremental administrative costs of 
conducting ESA section 7 consultation for each of the four specific 
areas. Multiplying the total number of consultations by the low and 
high estimates of cost yields the following

[[Page 72233]]

ranges of total administrative costs (in 2007 dollars) per area over 
the next 10 years: $5,651,195 to $11,157,488 in Area 1; $2,050,118 to 
$4,047,669 in Area 2; and $730,911 to $1,443,082 in Areas 3 and 4. 
Table 1 above provides a summary of the estimated costs, where 
possible, of individual project modifications. The Final Section 
4(b)(2) Report provides a detailed description of each project 
modification, methods of determining estimated costs, and the action(s) 
for which it may be prescribed. Although we have a projection of the 
number of future formal consultations (albeit an overestimation), the 
lack of information on the specifics of project design limits our 
ability to forecast the exact type and amount of modifications 
required. Therefore, while the costs associated with types of project 
modifications were characterized, no total cost of this rule can be 
quantified accurately.
    Preventing destruction or adverse modification of critical habitat 
is expected to contribute to the preservation of, and potential 
increases in, economic and other conservation benefits in each of the 
four specific areas, as described in the Final Section 4(b)(2) Report. 
In Area 1, the natural reefs formed and inhabited by elkhorn and 
staghorn corals provide over $225 million in average annual use value 
(2003 dollars) and a capitalized value of over $7 billion to the four 
Florida counties covered by Area 1. Natural reef-related industries 
provided over 40,000 jobs in Area 1 in 2003, generating over $1 billion 
in income. Area 1 experienced almost $6 million in value of commercial 
reef-dependent fish landings in 2005. Available information also 
demonstrates the direct link between healthy coral reef ecosystems and 
the value of scuba-diving related tourism throughout the Caribbean, 
including Florida, with estimated losses in the hundreds of millions of 
dollars region-wide per year if reef degradation continues. Coral reefs 
provided over 87 percent of average annual commercial fish and 
invertebrate landings in Puerto Rico (Area 2) from 1995 to 2002. In 
2005, domestic landings of shallow water reef fish comprised about 66 
percent of all fish landed in Puerto Rico and were valued at over $1.7 
million. Tourism is not as dominant a component of Puerto Rico's 
overall economy as it is in Areas 1, 3, and 4, but it may be much more 
significant for the shoreside communities from which dive and other 
reef-related tourism activities embark. Tourism accounts for 80 percent 
of the U.S.V.I.'s (Area 3) Gross Domestic Product and employment. One 
survey documented that 100 percent of hotel industry respondents stated 
they believed there would be a significant impact on tourist visits if 
the coast and beaches were degraded, or fisheries or coral reefs 
declined. In 2005, domestic landings of shallow water reef fish 
comprised about 83 percent of all fish landed in the U.S.V.I. that year 
and were valued at over $3.8 million.
    Conservation benefits to the corals in each of the four specific 
areas are expected to result from the designation. As we have 
determined, recovery of elkhorn and staghorn corals cannot succeed 
without protection of the essential feature from destruction or adverse 
modification. No existing laws or regulations protect the essential 
feature from destruction or adverse modification with a specific focus 
on increasing coral abundance and eventual recovery. Given the 
extremely low current abundance of the corals and characteristics of 
their sexual reproduction (e.g., limited success over long ranges), 
protecting the essential feature throughout the corals' range and 
throughout each of the four specific areas is extremely important for 
conservation of these species. We also describe the potential 
educational and awareness benefits to the corals that may result from 
the critical habitat designation in our Final 4(b)(2) Report.
    Regarding economic impacts, the limitations to the type and amount 
of existing information do not allow us to predict the total costs and 
benefits of the critical habitat designation. Nevertheless, we believe 
that our characterization of the types of costs and benefits that may 
result from the designation, in particular circumstances, may provide 
some useful information to Federal action agencies and potential 
project permittees. We have based the designation on a very 
specifically defined feature essential to the corals' conservation, 
which allowed us to identify the few, specific effects of human 
activities that may adversely affect the corals and thus require 
section 7 consultation under the ESA (sedimentation, nutrification, and 
physical destruction). We identified potential routine project 
modifications we may require to avoid destroying or adversely modifying 
the essential substrate feature. In some cases, these modifications are 
common environmental mitigation measures that are already being 
performed under existing laws and regulations that seek to prevent or 
minimize adverse impacts to coral reef or marine resources in general. 
Thus, we believe that parties planning future activities within the 
four specific areas designated as critical habitat for listed corals 
will be able to predict the potential added costs of their projects 
resulting from the designation based on their knowledge of the 
location, size, and timing of their planned activities. We have 
discussed to the extent possible the circumstances under which section 
7 impacts will be incremental impacts of this rule, or co-extensive 
impacts of this rule and the listing of the corals or another existing 
legal authority. We believe that the limitations of current information 
about potential future projects do not allow us to be more specific in 
our estimates of the section 7 impacts (administrative consultation and 
project modification costs) of the designation. In addition, based on 
available information, we could not identify any patterns or clumping 
in the distribution of future projects (and the associated 
consultations and potential modifications) either between or within the 
four specific areas designated as critical habitat for listed corals 
that would suggest any disproportionate impact of the designation.
    Similarly, with regard to the conservation benefits of the 
designation, we determined that the designation will result in benefits 
to society. We provide a literature survey of the valuation of coral 
reefs to provide context for the readers on benefits of protective 
measures. Given the potential number and types of future ESA section 7 
consultations, we expect that the designation will prevent adverse 
effects to the critical habitat feature, and thus assist in maintaining 
the feature's conservation function for the two corals. We believe the 
designation will assist in preventing further losses of the corals and, 
eventually, in increased abundance of the two species. By contributing 
to the continued existence of these two species and eventually their 
increased abundance, the designation, at minimum, prevents loss of 
important societal benefits described above that are currently provided 
by the species, and potentially increases these benefits over time.
    Regarding impacts on Federal agencies responsible for managing 
resources in areas designated as critical habitat for listed corals, we 
expect ESA section 7 consultation responsibilities will result from the 
designation as described above. However, as explained further in the 
section 4(b)(2) report, we determined that the designation will not 
negatively impact the management or operation of existing managed areas 
or the Federal agencies responsible for these areas. We further 
determined that the designation provides an added

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conservation benefit to the corals beyond the benefits provided by the 
existing management plans and associated regulations. We believe our 
evaluation and consideration of the potential impacts above support our 
conclusion that there are no economic or other relevant impacts that 
warrant our excluding particular areas from the designation.
    As discussed in the next section, we are exercising our discretion 
to exclude particular areas from the critical habitat designation based 
on national security impacts.

Exclusions Under Section 4(b)(2)

    Impacts to national security as a result of the critical habitat 
designation are expected to occur in Area 1, specifically on a 5.5 sq 
mile (14.2 sq km) area of the RAA, Dania, FL. Based on information 
provided to us by the Navy, national security interests would be 
negatively impacted by the designation, because the potential 
additional consultations and project modifications to avoid adversely 
modifying the essential feature would interfere with military training 
and readiness. Based on these considerations, we are excluding the 
particular area identified by the Navy from the critical habitat 
designation.
    The benefit of excluding the Dania RAA particular area is that the 
Navy would only be required to comply with the jeopardy prohibition of 
ESA section 7(a)(2) and not the adverse modification prohibition in 
this area. The Navy maintains that the additional commitment of 
resources in completing an adverse modification analysis, and any 
change in its activities to avoid adverse modification of critical 
habitat, would likely reduce its readiness capability. Given that the 
Navy is currently actively engaged in training, maintaining, and 
deploying forces in the current war effort, this reduction in readiness 
could reduce the ability of the military to ensure national security.
    The excluded area comprises only 0.42 percent of Area 1. Navy 
regulations prohibit anchoring, trawling, dredging, or attaching any 
object within the area; thus, the corals and their habitat will be 
protected from these threats. Further, the corals and their habitat 
will still be protected through ESA section 7 consultations that 
prohibit jeopardizing the species' continued existence and require 
modifications to minimize the impacts of incidental take. Further, we 
do not foresee other Federal activities that might adversely impact 
critical habitat that would be exempted from future consultation 
requirements due to this exclusion, since these areas are under 
exclusive military control. Therefore, in our judgment, the benefit of 
including the particular area of the Dania RAA is outweighed by the 
benefit of avoiding the impacts to national security the Navy would 
experience if they were required to consult based on critical habitat. 
Given the small percentage of Area 1 encompassed by this area, we 
conclude that exclusion will not result in extinction of either elkhorn 
or staghorn coral.

Critical Habitat Designation

    We are designating approximately 2,959 square miles (7,664 sq km) 
of marine habitat within the geographical area occupied by elkhorn and 
staghorn corals in Florida, Puerto Rico, and the U.S.V.I. The specific 
areas contain the substrate physical feature we determined to be 
essential to the conservation of these species and that may require 
special management considerations or protection.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Public Law 106-554), is intended to enhance the quality 
and credibility of the Federal Government's scientific information, and 
applies to influential or highly influential scientific information 
disseminated on or after June 16, 2005. To satisfy our requirements 
under the OMB Bulletin, we obtained independent peer review of the 
scientific information that supported our proposed rule to designate 
critical habitat for elkhorn and staghorn corals and incorporated the 
peer review comments prior to dissemination of the proposed rulemaking. 
The draft 4(b)(2) Report (NMFS, 2007) that supports the proposal to 
designate critical habitat for elkhorn and staghorn corals was also 
peer reviewed and the Final 4(b)(2) Report is available on our web site 
(see ADDRESSES).

Classification

    We determined that this action is consistent to the maximum extent 
practicable with the enforceable policies of the approved coastal 
management programs of Florida, Puerto Rico, and U.S.V.I. The 
determination was submitted for review by the responsible state 
agencies under section 307 of the Coastal Zone Management Act. We did 
not receive responses from Puerto Rico or the U.S.V.I; Florida found 
the regulation consistent with its approved coastal management 
programs.
    This rule has been determined to be significant under Executive 
Order (E.O.) 12866. We have integrated the regulatory principles of the 
E.O. into the development of this final rule to the extent consistent 
with the mandatory duty to designate critical habitat, as defined in 
the ESA.
    We prepared a FRFA pursuant to section 604 of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.), which describes the economic 
impact this rule would have on small entities. A description of the 
action, why it is being considered, and its legal basis are included in 
the preamble section of this final rule.
    Small businesses, small nonprofit organizations, and small 
governmental jurisdictions may be affected by this designation if they 
engage in activities that would affect the essential feature identified 
in this designation and if they receive funding or authorization for 
such activity from a Federal agency. Such activities would trigger ESA 
section 7 consultation requirements and potential requirements to 
modify proposed activities to avoid destroying or adversely modifying 
the critical habitat. The consultation record from which we have 
projected likely Federal actions over the next 10 years indicates that 
applicants for Federal permits or funds have included small entities. 
For example, marine contractors have been the recipients of COE permits 
for dock construction; some of these contractors were small entities.
    According to the Small Business Administration, businesses in the 
Heavy and Civil Engineering Construction subsector (NAICS Code 237990), 
which includes firms involved in marine construction projects such as 
breakwater, dock, pier, jetty, seawall, and harbor construction, must 
have average annual receipts of no more than $31 million to qualify as 
a small business (dredging contractors that perform at least 40 percent 
of the volume dredged with their own equipment, or equipment owned by 
another small concern are considered small businesses if their average 
annual receipts are less than or equal to $18.5 million). Our 
consultation database does not track the identity of past permit 
recipients or whether the recipients were small entities, so we have no 
basis to determine the percentage of grantees or permittees that may be 
small businesses in the future. We do know from the more recent 
consultation history that small governmental jurisdictions (population 
less than or equal to 50,000) have received COE

[[Page 72235]]

permits for beach renourishment. Small businesses in the tourist and 
commercial fishing industries may benefit from the rule, as 
conservation of elkhorn and staghorn corals is expected to result in 
increased direct and indirect use of, and values derived from, coral 
reefs.
    We projected that, on average, approximately 39 Federal projects 
with non-Federal grantees or permittees will be affected by 
implementation of the critical habitat designation, annually, across 
all four areas included in the critical habitat designation. Some of 
these grantees or permittees could be small entities, or could hire 
small entities to assist in project implementation. Historically, these 
projects have involved pipeline installation and maintenance, mooring 
construction and maintenance, dock/pier construction and repair, marina 
construction, bridge repair and construction, new dredging, maintenance 
dredging, NPDES/water quality standards, cable installation, beach 
renourishment, shoreline stabilization, reef ball construction and 
installation, and port construction. Potential project modifications we 
have identified that may be required to prevent these types of projects 
from adversely modifying critical habitat include: project relocation; 
environmental conditions monitoring; GPS and DPV protocols; diver 
assisted anchoring or mooring buoy use; pipe collars or cable 
anchoring; shoreline protection measures; use of upland or artificial 
sources of sand; directional drilling or tunneling; and sediment and 
turbidity control measures (see Tables 20, 21 and 24 of the Final 
Section 4(b)(2) Report).
    Even though we cannot determine relative numbers of small and large 
entities that may be affected by this final rule, there is no 
indication that affected project applicants would be limited to, nor 
disproportionately comprise, small entities. It is unclear whether 
small entities would be placed at a competitive disadvantage compared 
to large entities. However, as described in the Final Section 4(b)(2) 
Report, consultations and project modifications will be required based 
on the type of permitted action and its associated impacts on the 
essential critical habitat feature. Because the costs of many potential 
project modifications that may be required to avoid adverse 
modification of critical habitat are unit costs (e.g., per mile of 
shoreline, per cubic yard of sand moved) such that total project 
modification costs would be proportional to the size of the project, it 
is not unreasonable to assume that larger entities would be involved in 
implementing the larger projects with proportionally larger project 
modification costs.
    It is also unclear whether the rule will significantly reduce 
profits or revenue for small businesses. As discussed throughout the 
Final Section 4(b)(2) Report, we made assumptions that all of the 
future consultations will be formal, and all will require project 
modifications; but this is likely an overestimation. In addition, as 
stated above, though it is not possible to determine the exact cost of 
any given project modification resulting from consultation, the smaller 
projects most likely to be undertaken by small entities would likely 
result in relatively small modification costs. Finally, many of the 
modifications identified to reduce the impact of a project on critical 
habitat may be a baseline requirement either due to the ESA listing of 
the species or under another regulatory authority, notably the CWA.
    There are no record-keeping requirements associated with the rule. 
Similarly, there are no reporting requirements other than those that 
might be associated with reporting on the progress and success of 
implementing project modifications, which do not require specific 
skills to satisfy. However, third party applicants or permittees would 
be expected to incur costs associated with participating in the 
administrative process of consultation along with the permitting 
Federal agency. Such third party costs of consultation were estimated 
for the 2003 designation of critical habitat for Gulf sturgeon in the 
southeast United States. In 2007 dollars, per consultation 
administrative costs for third parties are estimated to average from 
$3,314 to $4,685.
    No Federal laws or regulations duplicate or conflict with this 
final rule. Existing Federal laws and regulations overlap with the rule 
only to the extent that they provide protection to marine natural 
resources or corals generally. However, no existing laws or regulations 
specifically prohibit destruction or adverse modification of critical 
habitat for, and focus on the recovery of, elkhorn and staghorn corals.
    The alternatives to the designation considered consisted of a no-
action alternative and an alternative based on a broader conservation 
objective that would include multiple physical or biological features 
of the corals' environment in the designation. The no-action, or no 
designation, alternative would result in no additional ESA section 7 
consultations relative to the status quo of the species' listing and 
finalization of the ESA section 4(d) rule for these species. However, 
while additional administrative and potential project modification 
costs would not be incurred under this alternative, this alternative is 
not necessarily a no-cost alternative, including to small entities, 
given the potential loss of existing benefits provided by the corals if 
they continue to decline due to failure to protect the substrate 
essential feature from adverse modification. The multiple features 
alternative was expected to increase the number and complexity of 
section 7 consultations and associated costs to small entities without 
concomitant increased conservation benefits to the corals, because we 
believe the additional features are already effectively managed through 
the jeopardy analysis required under ESA section 7 or subsumed within 
the substrate essential feature identified for this designation.
    An environmental analysis as provided for under National 
Environmental Policy Act for critical habitat designations made 
pursuant to the ESA is not required. See Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).
    Pursuant to the Executive Order on Federalism, E.O. 13132, the 
Assistant Secretary for Legislative and Intergovernmental Affairs 
provided notice of the action and requested comments from the 
appropriate official(s) of the states and territories in which the two 
species occur. As mentioned above, Florida found the regulation 
consistent with its approved coastal management programs, and Puerto 
Rico and the U.S.V.I. did not respond.
    The action has undergone a pre-dissemination review and been 
determined to be in compliance with applicable information quality 
guidelines implementing the Information Quality Act (Section 515 of 
Public Law 106-554).
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.
    This rule is consistent with E.O. 13089, which is intended to 
preserve and protect the biodiversity, health, heritage, and social and 
economic value of U.S. coral reef ecosystems and the marine 
environment.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our website at http://sero.nmfs.noaa.gov/pr/protres.htm and is 
available upon request from the NMFS Southeast

[[Page 72236]]

Regional Office in St. Petersburg, Florida (see ADDRESSES).

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Transporation.

50 CFR Part 226

    Endangered and threatened species.

    Dated: November 14, 2008.
James W. Balsiger,
Acting Assistant Administrator of Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, we amend 50 CFR parts 223 and 
226 as set forth below:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for Sec.  
223.206(d)(9).


Sec.  223.102  [Amended]

0
2. Amend Sec.  223.102 by removing the text, ``NA'', from the column 
labeled ``Citation for Critical Habitat Designation'' in paragraphs 
(d)(1) and (d)(2) and adding in its place 73 FR [Insert FR page number 
where the document begins]; November 26, 2008.

PART 226--DESIGNATED CRITICAL HABITAT

0
3. The authority citation for part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

0
4. Add Sec.  226.216, to read as follows:


Sec.  226.216  Critical habitat for elkhorn (Acropora palmata) and 
staghorn (A. cervicornis) corals.

    Critical habitat is designated for both elkhorn and staghorn corals 
as described in this section. The textual descriptions of critical 
habitat in paragraphs (b) and (c) of this section are the definitive 
source for determining the critical habitat boundaries. The overview 
maps in paragraph (d) of this section are provided for general guidance 
purposes only, and not as a definitive source for determining critical 
habitat boundaries.
    (a) Physical Feature Essential to the Conservation of Threatened 
Corals. The physical feature essential to the conservation of elkhorn 
and staghorn corals is: substrate of suitable quality and availability 
to support larval settlement and recruitment, and reattachment and 
recruitment of asexual fragments. ``Substrate of suitable quality and 
availability'' is defined as natural consolidated hard substrate or 
dead coral skeleton that is free from fleshy or turf macroalgae cover 
and sediment cover.
    (b) Critical Habitat Areas. Critical habitat includes one specific 
area of the Atlantic Ocean offshore of Palm Beach, Broward, Miami-Dade, 
and Monroe counties, Florida, and three specific areas of the Atlantic 
Ocean and Caribbean Sea offshore of the U.S. Territories of Puerto Rico 
and the U.S. Virgin Islands. The boundaries of each specific critical 
habitat area are described below. Except as specified below, the 
seaward boundary is the 98-ft (30-m) depth contour and the shoreward 
boundary is the line of mean low water (MLW; 33 CFR 2.20). Within these 
boundaries, discrete areas of water deeper than 98 ft (30 m) are not 
included.
    (1) Florida Area: The Florida area contains three sub-areas.
    (i) The shoreward boundary for Florida sub-area A begins at the 6-
ft (1.8 m) contour at the south side of Boynton Inlet, Palm Beach 
County at 26[deg] 32' 42.5'' N; then runs due east to the point of 
intersection with the 98-ft (30 m) contour; then follows the 98-ft (30 
m) contour to the point of intersection with latitude 25[deg] 45' 55'' 
N, Government Cut, Miami-Dade County; then runs due west to the point 
of intersection with the 6-ft (1.8 m) contour, then follows the 6-ft 
(1.8 m) contour to the beginning point.
    (ii) The shoreward boundary of Florida sub-area B begins at the MLW 
line at 25[deg] 45' 55'' N, Government Cut, Miami-Dade County; then 
runs due east to the point of intersection with the 98-ft (30 m) 
contour; then follows the 98-ft (30 m) contour to the point of 
intersection with longitude 82[deg] W; then runs due north to the point 
of intersection with the South Atlantic Fishery Management Council 
(SAFMC) boundary at 24[deg] 31' 35.75'' N; then follows the SAFMC 
boundary to a point of intersection with the MLW line at Key West, 
Monroe County; then follows the MLW line, the SAFMC boundary (see 50 
CFR 600.105(c)), and the COLREGS line (see 33 CFR 80.727. 730, 735, and 
740) to the beginning point.
    (iii) The seaward boundary of Florida sub-area C (the Dry Tortugas) 
begins at the northern intersection of the 98-ft (30 m) contour and 
longitude 82[deg] 45' W; then follows the 98-ft (30 m) contour west 
around the Dry Tortugas, to the southern point of intersection with 
longitude 82[deg] 45' W; then runs due north to the beginning point.
    (2) Puerto Rico Area: All areas surrounding the islands of the 
Commonwealth of Puerto Rico, 98 ft (30 m) in depth and shallower, 
seaward of the COLREGS line (see 33 CFR 80.738).
    (3) St. Thomas/St. John Area: All areas surrounding the islands of 
St. Thomas and St. John, U.S. Virgin Islands, and smaller surrounding 
islands, 98 ft (30 m) in depth and shallower.
    (4) St. Croix Area: All areas surrounding the island of St. Croix, 
U.S. Virgin Islands, 98 ft (30 m) in depth and shallower.
    (c) Areas not included in critical habitat. Critical habitat does 
not include the following particular areas where they overlap with the 
areas described in paragraph (b) of this section:
    (1) Pursuant to ESA section 4(a)(3)(B), all areas subject to the 
2008 Naval Air Station Key West Integrated Natural Resources Management 
Plan.
    (2) Pursuant to ESA section 3(5)(A)(i), all areas containing 
existing (already constructed) federally authorized or permitted man-
made structures such as aids-to-navigation (ATONs), artificial reefs, 
boat ramps, docks, pilings, maintained channels, or marinas.
    (3) Pursuant to ESA section 3(5)(A)(i), all waters identified as 
existing (already constructed) federally authorized channels and 
harbors as follows:
    (i) Palm Beach Harbor.
    (ii) Hillsboro Inlet.
    (iii) Port Everglades.
    (iv) Miami Harbor.
    (v) Key West Harbor.
    (vi) Arecibo Harbor.
    (vii) San Juan Harbor.
    (viii) Fajardo Harbor.
    (ix) Ponce Harbor.
    (x) Mayaguez Harbor.
    (xi) St. Thomas Harbor.
    (xii) Christiansted Harbor.
    (d) Areas excluded from critical habitat. Pursuant to ESA Section 
4(b)(2), all waters of the Restricted Anchorage Area as described at 33 
CFR 334.580, beginning at a point located at 26[deg] 05[min] 30'' N, 80 
03[min] 30'' W.; proceed west to 26[deg] 05[min] 30'' N, 80[deg] 
06[min] 30'' W; thence, southerly to 26[deg] 03[min] 00'' N, longitude 
80[deg] 06[min] 42'' W; thence, east to latitude 26[deg] 03[min] 00'' 
N, 80[deg] 05[min] 44'' W.; thence, south to 26[deg] 01[min] 36'' N, 
80[deg] 05[min] 44'' W.; thence, east to 26[deg] 01[min] 36'' N, 
80[deg] 03[min] 30'' W; thence, north to the point of beginning.
    (e) Overview maps of designated critical habitat for elkhorn and 
staghorn corals follow.
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