[Federal Register Volume 74, Number 187 (Tuesday, September 29, 2009)]
[Proposed Rules]
[Pages 49842-49845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23245]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0066]
[92210-1117-0000-B4]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to Revise Critical Habitat for the Florida Manatee 
(Trichechus manatus latirostris)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of critical 
habitat review.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day 
finding on a petition to revise the critical habitat designation for 
the Florida subspecies (Trichechus manatus latirostris) of the 
endangered West Indian manatee (Trichechus manatus) under the 
Endangered Species Act of 1973, as amended. Based on our review, we 
find that the petition, in conjunction with information readily 
available in our files, presents substantial scientific or commercial 
information indicating that a revision of the critical habitat 
designation for the Florida manatee may be warranted. Therefore, with 
the publication of this notice, we are initiating a review of the 
current critical habitat designation for the subspecies to determine 
how we intend to proceed with the revision. To ensure a comprehensive 
review, we seek information pertaining to the Florida manatee's 
essential habitat needs from any interested party.

DATES: To allow us adequate time to conduct this review, we request 
that you send us information on or before October 29, 2009.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. Search for docket FWS-R4-ES-2009-0066 and then 
follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments 
Processing, Attn: FWS-R4-ES-2009-0066; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, Suite 222; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Solicited 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Dave Hankla, Field Supervisor, 
Jacksonville, Florida Ecological Services Office, 7915 Baymeadows Way, 
Suite 200, Jacksonville, FL 32256, by telephone (904-731-3336), or by 
facsimile (904-731-3045). If you use a telecommunications device for 
the deaf (TDD), please call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

    When we make a finding that a petition presents substantial 
information indicating that a revision of a critical habitat 
designation may be warranted, we initiate a review of that critical 
habitat to determine how we intend to proceed with the requested 
revision of the designation. To ensure that the review is complete and 
incorporates the best available scientific and commercial information, 
we seek information regarding the revision of critical habitat for the 
Florida manatee.

[[Page 49843]]

We request information from governmental agencies, Native American 
Tribes, the scientific community, industry, and any other interested 
parties. We are seeking information regarding:
    (1) The historical and current status and distribution of Florida 
manatee, its biology and ecology, and ongoing conservation measures for 
the species and its habitat;
    (2) Physical and biological features essential to the conservation 
of the species;
    (3) Information on threats to the species and its habitat; and
    (4) Data on the increase in growth of Florida's human population 
since we designated manatee critical habitat in 1976, and examples of 
related increased threats to the species and subsequent changes to 
manatee habitat.
    In 2007, the Service conducted an extensive review of all available 
information on the Florida manatee while preparing a 5-year status 
review of the species (Service 2007). We are particularly seeking 
information about manatee habitat or manatee use of habitat that has 
been made available since publication of the review.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination. Section 4(b)(2) of the Endangered Species Act 
of 1973, as amended (Act) (16 U.S.C. 1531 et seq.) directs that ``the 
Secretary shall designate critical habitat, and make revisions thereto, 
...on the basis of the best scientific data available.'' Based on our 
critical habitat review, we will publish a 12-month notice of our 
intentions concerning the petition, as provided in section 
4(b)(3)(D)(ii) of the Act.
    You may submit your information concerning this review by one of 
the methods listed in the ADDRESSES section. If you submit information 
via http://www.regulations.gov, your entire submission--including any 
personal identifying information--will be posted on the website. If 
your submission is made via a hardcopy that includes personal 
identifying information, you may request at the top of your document 
that we withhold this personal identifying information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov. 
Please include sufficient information with your submission (such as 
full references) to allow us to verify any scientific or commercial 
information you include.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this finding, will be available for 
public inspection on http://www.regulations.gov, or by appointment 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Jacksonville, Florida Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    Section 4(b)(3)(D) of the Act requires that we make a finding as to 
whether a petition to revise critical habitat presents substantial 
scientific information indicating that the revision may be warranted. 
The standard for substantial scientific or commercial information set 
forth in our implementing regulations with regard to a 90-day petition 
finding is ``that amount of information that would lead a reasonable 
person to believe that the measure proposed in the petition may be 
warranted'' (50 CFR 424.14(b)). In determining whether substantial 
information exists, we take into account several factors, including 
information submitted with, and referenced in, the petition and all 
other information readily available in our files. To the maximum extent 
practicable, we are to make this finding within 90 days of the receipt 
of the petition, and we are to publish the finding promptly in the 
Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that a petition 
presents substantial information indicating that the revision may be 
warranted, we are required to determine how we intend to proceed with 
the requested revision within 12 months after receiving the petition 
and promptly publish notice of such intention in the Federal Register.
    Critical habitat is defined under section 3(5)(A) of the Act as:
    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the 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; and
    (ii) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our implementing regulations at 50 CFR 424.12 describe our criteria 
for designating critical habitat. We are to consider essential physical 
and biological features essential to the conservation of the species. 
Those features include, but are not limited to: (1) space for 
individual and population growth, and normal behavior; (2) food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; (3) cover or shelter; (4) sites for breeding, 
reproduction, or rearing of offspring; and (5) habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distribution of a species. Essential 
physical and biological features may include, but are not limited to: 
``nesting grounds, feeding sites, water quality, tide, and geological 
formations.'' Our implementing regulations at 50 CFR 424.02 define 
``special management considerations or protection'' as any methods or 
procedures useful in protecting physical and biological features of the 
environment for the conservation of the species.
    Section 4(b)(2) of the Act requires us to designate and make 
revisions to critical habitat for listed species on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
The Secretary may exclude any particular area from critical habitat if 
he determines that the benefits of such exclusion outweigh the benefits 
of specifying such area as part of the critical habitat, unless he 
determines that the failure to designate such area as critical habitat 
will result in the extinction of the species concerned.

Petition History

    On December 19, 2008, we received a petition from Wildlife Advocacy 
Project, Save the Manatee Club, Center for Biological Diversity, and 
Defenders of Wildlife, requesting that we revise critical habitat for 
the Florida manatee (Trichechus manatus latirostris) pursuant to the 
Act and the Administrative Procedure Act (5 U.S.C. Subchapter II). The 
petition clearly identified itself and included the requisite 
identification information for the petitioners, as required in 50 CFR 
424.14(a). In a January 17, 2009, letter to the petitioners, we 
responded that we received the petition and would make a finding, to 
the maximum extent practicable within 90 days, as to

[[Page 49844]]

whether or not the petition presents substantial information. We also 
stated that if the initial finding concludes that the petition presents 
substantial information indicating that a revision may be warranted, 
then we have one year from the date we received the petition to 
determine how we intend to proceed with the requested revision and we 
will promptly publish in the Federal Register a notice of our 
intentions at the end of this period.

Previous Federal Actions

    We originally listed the Florida manatee (Trichechus manatus 
latirostris), a subspecies of the West Indian manatee (Trichechus 
manatus), as endangered in 1967 (32 FR 4001, March 11, 1967) under the 
Endangered Species Preservation Act of 1966 (Pub. L. 89-669; 80 Stat. 
926). In 1970, we amended Appendix A to 50 CFR part 17 to include 
additional names to the list of foreign endangered species (35 FR 
18319, December 2, 1970). This listing incorporated West Indian 
manatees into the list under the Endangered Species Conservation Act of 
1969 (Pub. L. 91-135; 83 Stat. 275) and encompassed the species' range 
in the Caribbean and northern South America, thus including both 
Antillean (T. m. manatus) and Florida manatees in the listing. The West 
Indian manatee is currently listed as an endangered species under the 
Act, and the population is further protected as a depleted stock under 
the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.). We 
designated critical habitat for the Florida manatee (listed in that 
regulation as Trichechus manatus) on September 24, 1976 (41 FR 41914) 
in Citrus, Hillsborough, Manatee, Sarasota, Charlotte, De Soto, Lee, 
Collier, Monroe, Dade, Palm Beach, Martin, West Palm Beach, Volusia, 
Brevard, Nassau and Duval Counties, Florida. That critical habitat 
designation appears in our regulations at 50 CFR 17.95(a).

Species Information

    For current information on the biology, status, and habitat needs 
of the Florida manatee, refer to the Service's 5-Year Review of the 
West Indian Manatee (Service 2007) and the Service's Florida Manatee 
Recovery Plan (Service 2001), available on the Internet at http://www.regulations.gov and at http://www.fws.gov/northflorida/Manatee/manatees.htm.

Evaluation of the Petition

    In making this 90-day finding, we evaluated whether information 
regarding the revision of the critical habitat for Florida manatee, as 
presented in the petition and other information available in our files 
is substantial, thereby indicating that the petitioned action may be 
warranted. Our evaluation of this information is presented below.
    The petitioners seek to revise the critical habitat designation 
through proposed revisions of each geographic area or management unit 
and the inclusion of ``notable constituent elements.'' The petitioners 
claim that although the currently designated critical habitat is large, 
because of flaws in the listing, it provides inadequate protection of 
manatees. The petitioners include the four topics listed below as 
``major deficiencies'' in the currently designated critical habitat for 
the Florida manatee.

(1) Petitioners Claim that Constituent Elements Required by Law are 
Absent.

    The petitioners state that we designated manatee critical habitat 
in 1976, 2 years before the requirement for constituent elements was 
included in the 1978 amendments to the ESA in which the term ``critical 
habitat'' was clearly defined, and included the physical and biological 
factors (p. 15). The petitioners also state that, because extensive 
information concerning the manatee's current and projected habitat 
needs and utilization is now available, it is possible to describe the 
constituent elements, and we should remedy the lack of such elements in 
the critical habitat designation (p. 15).
    We agree that we did not address constituent elements, or more 
appropriately, the physical and biological features essential to the 
conservation of the manatee, in the original 1976 designation of 
critical habitat, and more information is now available on the habitat 
needs of the manatee. Therefore, we find that the petitioners have 
presented substantial information that a revision to the critical 
habitat for the manatee may be warranted to more adequately address the 
features essential to the species' conservation.

(2) Petitioners Claim that Changes in Use by the Species Necessitate 
Revision.

    The petitioners include statistics on the increase in growth of 
Florida's human population since we designated manatee critical habitat 
and include examples of related increased threats to the species and 
subsequent changes to habitats now available to manatees (pp. 15-16). 
They state that a 171 percent increase in the human population of 
Florida since critical habitat was designated in 1976, through 2005, 
has increased recreational use of coastal areas and has diminished 
water quality and the availability of natural warm water for manatees.
    We agree that the increase in urban development, particularly on 
Florida's coasts, has changed the landscape since we designated 
critical habitat for the manatee. In response to the increase in human 
growth, and consequent increase in the number of recreational vessels 
on Florida's waterways, we have published a number of rules to 
establish manatee protection areas in the State (50 CFR 17.100 through 
17.108). This information can be found on the Internet at http://www.fws.gov/northflorida/Manatee/manatees.htm. We find that the 
information provided by the petitioners, along with information in our 
files, is substantial, indicating that a revision to critical habitat 
may be warranted to address changes in habitat use by manatees in 
Florida since the original designation of critical habitat.

(3) Petitioners Claim that Advancements in Science Provide New 
Information About the Needs of the Species.

    The petitioners claim that aerial surveys, radio and satellite 
telemetry studies, a carcass retrieval database, and the U.S. 
Geological Survey-Sirenia Project photo-identification database, which 
were developed after the initial designation of manatee critical 
habitat, have revolutionized our knowledge of manatee distribution and 
use of habitat. The petitioners also cite the Florida Manatee Recovery 
Plan's actions regarding manatee habitat, stating that we are compiling 
information and sponsoring research to identify and protect important 
manatee habitats with a longer term goal to conserve a network of 
manatee migratory corridors, and feeding, calving, and nursing areas 
(p. 16).
    We agree that scientific information regarding manatee conservation 
has dramatically increased since the original critical habitat 
designation. On the basis of this information, it is apparent that 
there has been a change in habitat use by the manatee due to an 
increasing manatee population and changing habitats. However, the most 
substantial information otherwise readily available to the Service is 
not that of the petitioners, but the analysis of threats for the 
Florida manatee in the Service's 5-year review (Service 2007), which 
incorporates updates in manatee science and includes both biological 
information and habitat use. The Service must designate and make 
revisions to critical habitat on the basis of the best scientific 
information available. The Service's 5-year review is the most recent 
analysis of threats to the

[[Page 49845]]

species based on those updates in scientific information. Therefore, 
based on information submitted by the petitioners and information in 
Service files, we find the information concerning advancements in 
science and new information concerning the needs of the species to be 
substantial information. We now know more specifically where habitat 
exists for manatees that is critical to their survival and recovery. As 
a consequence, we have determined that a revision to critical habitat 
for the manatee may be warranted to address new information concerning 
habitat usage and needs.

(4) Petitioners Claim that The U.S. Fish and Wildlife Service 
Recognizes the Need for Revision.

    The petitioners cite passages from Service consultation documents 
and the current Florida Manatee Recovery Plan (Recovery Plan) as 
evidence that we have stated the need to assess and revise critical 
habitat for the Florida manatee (p. 17). Specifically, the petitioners 
cite a biological opinion regarding U.S. Army Corps of Engineers 
Application (No. 4-1-97-F-602): ``The action area is within designated 
critical habitat for the manatee; however, no specific primary or 
secondary constituent elements were included in the critical habitat 
designation, making it difficult to determine when an action adversely 
modifies critical habitat.'' The petitioners state that the Service's 
Recovery Plan acknowledges the need to revise critical habitat and cite 
Recovery Action 3.5 from the Recovery Plan: ``Much has been learned 
about manatee distribution in the decades since manatee critical 
habitat was originally defined. The FWS should assess the need to 
revise critical habitat for the Florida manatee.''
    The Service disagrees with the petitioner's statement that the 
Recovery Plan acknowledges the need to revise critical habitat; 
however, we do acknowledge that the 2001 Florida Manatee Recovery Plan 
contains a recovery action, including the recommendation as stated 
above, to assess the need to revise critical habitat. Although the 
Service believes ``assessing the need'' is not the same as 
``recognizing the need'' for revision, we find that the information 
submitted by the petitioner in this category to be substantial 
information indicating that a revision to critical habitat for the 
manatee may be warranted.

Petitioners' Proposed Revisions to Critical Habitat

    In addition to identifying the deficiencies noted above with the 
current Florida manatee critical habitat designation, the petitioners 
dedicate an entire section of the petition to specific proposed 
revisions to manatee critical habitat in Florida. These proposed 
revisions include a description of geographic boundaries within each 
regional management unit that would alter the currently designated 
critical habitat, as well as recommended physical and biological 
features essential to the conservation of the manatee that would 
require protection and special attention either throughout all or 
portions of the petition's proposed geographical boundary revisions.
    Within each geographic management unit (Northwest Region, Southwest 
Region, Atlantic Region, and Upper St. Johns River Region), the 
petitioners provide a list of the currently designated critical habitat 
areas followed by their proposed revisions to those areas. In most 
cases, the petitioners list additional areas that they believe should 
be included in a revision to the currently designated critical habitat 
boundaries. They cite available scientific data to support their 
proposal.
    The list of essential features recommended by the petitioners for 
each of these geographic areas includes warm water (natural springs, 
passive thermal basins, and power plant thermal discharges); various 
food sources (seagrasses and freshwater vegetation); travel corridors; 
shelter (for calving and from disturbances); fresh water; and other 
habitat features (water depth, water quality and salinity).
    The Service recognizes the importance of warm water habitat to 
manatees; however, we have not evaluated potential physical and 
biological features essential to the conservation of the manatee. The 
Service makes no statement at this time on the specific proposals by 
the petitioners for the constituent elements or for the areas presented 
as revised critical habitat geographic boundaries. We do believe that 
any revision to critical habitat should reflect the current 
understanding of the conservation needs of the species.

Finding

    Our process for making this 90-day finding under section 4(b)(3)(D) 
of the Act is limited to a determination of whether the information in 
the petition presents ``substantial scientific information,'' which is 
interpreted in our regulations as ``that amount of information that 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted'' (50 CFR 424.14(b)).
    Based on this review and evaluation, in addition to the information 
readily available in our files, we find that the petition has presented 
substantial scientific information indicating that revision of the 
critical habitat designation for the Florida manatee may be warranted. 
Therefore, we are initiating a review to determine how we intend to 
proceed with the request to revise the critical habitat designation 
under the Act for the Florida manatee.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.govor upon request from the 
Field Supervisor, Jacksonville, Florida Ecological Services Office (see 
FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary authors of this notice are the staff members of the 
Jacksonville, Florida Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT).

Authority

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

    Dated: September 16, 2009.
Thomas L. Strickland
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E9-23245 Filed 9-28- 09; 8:45 am]
BILLING CODE 4310-55-S