[Federal Register Volume 75, Number 7 (Tuesday, January 12, 2010)]
[Proposed Rules]
[Pages 1574-1581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-325]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2009-0066]
[MO 92210-0-0009-B4]


Endangered and Threatened Wildlife and Plants; 12-month Finding 
on a Petition To Revise Critical Habitat for the Florida Manatee 
(Trichechus manatus latirostris)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 
12-month finding on a petition to revise critical habitat for the 
Florida manatee (Trichechus manatus latirostris) under the Endangered 
Species Act of 1973, as amended. After a thorough review of all 
available scientific and commercial information, we find that revisions 
to critical habitat for the Florida manatee are warranted. However, 
sufficient funds are not available due to higher priority actions such 
as court-ordered listing-related actions and judicially approved 
settlement agreements. We intend to initiate rulemaking when we 
complete the higher priorities and have the necessary resources to do 
so.

DATES: The finding announced in this document was made on January 12, 
2010.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2009-0066. Supporting 
documentation we used to prepare this finding is available for public 
inspection, by appointment during normal business hours at the U.S. 
Fish and Wildlife Service, Jacksonville Ecological Services Field 
Office, 7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256-7517. 
Please submit any new information, materials, comments, or questions 
concerning this finding to the above address.

FOR FURTHER INFORMATION CONTACT: U.S. Fish and Wildlife Service, Attn: 
Manatee CH Review, at the above address, by telephone at 904-731-3336, 
by facsimile at 904-731-3045, or by e-mail: [email protected]. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339. Please 
include ``Florida manatee scientific information'' in the subject line 
for faxes and emails.

SUPPLEMENTARY INFORMATION:  Section 4(b)(3)(D)(ii) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 
requires that, for any petition that is found to present substantial 
scientific and commercial information indicating that the requested 
revisions to critical habitat may be warranted, we make a finding 
within 12 months of the date of receipt of the petition and publish a 
notice in the Federal Register indicating how we intend to proceed with 
the requested revision.

Background

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) under the Endangered 
Species Preservation Act of 1966 (Pub. L. 89-669; 80 Stat. 926). In 
1970, Appendix A to 50 CFR Part 17 was amended to include additional 
names to the list of foreign endangered species (35 FR 18319). 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. 1361-1407).
    Critical habitat was designated for the Florida manatee on 
September 24, 1976 (41 FR 41914). This designation delineated specific 
waterways in Florida that were known to be important concentration 
areas for manatees at that time.
    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 critical habitat be revised for 
the Florida manatee (Trichechus manatus latirostris) under the Act and 
the Administrative Procedure Act. The petition clearly identified 
itself as a petition 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 had received the petition and would make a finding, to the maximum 
extent practicable within 90 days, as to 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 the requested action may be warranted, then we have 1 
year from the date we received the petition to determine how we intend 
to proceed with the requested revision, and that we would promptly 
publish a notice of our intentions in the Federal Register at the end 
of this period.
    We published our 90-day finding regarding the petition to revise 
critical habitat for the Florida manatee on September 29, 2009 (74 FR 
49842). We determined that the petition presented substantial 
information indicating that revising critical habitat for the Florida 
manatee under the Act may be warranted, thus initiating this 12-month 
finding. Accordingly, we asked the public to submit information 
relevant to the finding by October 29, 2009. We have fully considered 
all information available and received in response to information 
requested in our 90-day finding.
    This 12-month finding discusses only those topics directly relevant 
to the revision of existing critical habitat for the Florida manatee.

[[Page 1575]]

Species Information

    The Florida manatee, Trichechus manatus latirostris, is a 
subspecies of the West Indian manatee (T. manatus, Linnaeus 1758) and 
is native to Florida. Manatees are long-lived marine mammals, dark grey 
in color, and average about 10 feet (3 m) in length and between 800 to 
1,200 pounds (363 to 544 kg) in weight. Manatees have a round, 
flattened, paddle-shaped tail and two front flippers that are used for 
steering while swimming.
    Female manatees are capable of reproduction at as early as 4 years 
of age; however, most breed between the ages of 7 and 9. Gestation 
lasts from 12 to 14 months. Normally an adult female would have only 
one calf every 2 to 5 years, but there are rare occurrences of twins. 
The mother and calf remain together for up to 2 years. Male manatees 
aggregate in mating herds around a female when she is ready to 
conceive, but contribute no parental care to the calf.
    The major threats to the Florida manatee population are human 
related, and include watercraft strikes (direct impacts and propeller 
cuts), which can cause injury and death (Rommel et al. 2007, p. 111; 
Lightsey et al. 2006, p. 262); entrapment and crushing in water control 
structures (gates, locks, etc.); and entanglement in fishing gear. 
Natural threats include red tide and exposure to cold. A comprehensive 
threats analysis, recently conducted as part of the Service's 5-year 
status review, indicated that the single largest threat to the 
persistence of manatees in Florida is collisions with watercraft. The 
second most significant threat to the species' survival is the loss of 
warm-water habitat. The other threats (water control structures, 
entanglement, and red tide) are of substantially less impact to the 
overall status of the species (USFWS 2007, p. 24; Runge et al. 2007a, 
p. 10).
    The Florida manatee has not experienced any curtailment in the 
extent of its range throughout the southeastern U.S. To the contrary, 
Florida manatees have expanded their summer range to other states along 
the Atlantic and Gulf coasts. It is now not uncommon to find manatees 
in coastal waters of Georgia, North and South Carolina, Alabama, and 
Louisiana.

Habitat Information

    Florida manatees are found in freshwater, brackish, and marine 
environments. Typical habitats include coastal tidal rivers and 
streams, mangrove swamps, salt marshes, and freshwater springs (FWC 
2005). As herbivores, manatees feed on the wide range of aquatic 
vegetation that these habitats provide. Shallow seagrass beds, with 
ready access to deep channels, are generally preferred feeding areas in 
coastal and riverine habitats (Smith 1993, p. 5). In coastal Georgia 
and northeastern Florida, manatees feed in salt marshes on smooth 
cordgrass (Spartina alterniflora) by timing feeding periods with high 
tide (Baugh et al. 1989, p. 89; Zoodsma 1991, p. 124). Manatees use 
springs and freshwater runoff sites for drinking water; secluded 
canals, creeks, embayments, and lagoons for resting, cavorting, mating, 
calving, and nurturing their young; and open waterways and channels as 
travel corridors (Marine Mammal Commission 1984, p. 8, and 1988, p. 88; 
Gannon, et al. 2007, p. 140; Laist and Boland 2008, p. 1).
    Although manatees occupy different habitats during various times of 
the year (Deutsch et al. (2003, p. 1), they are a subtropical species 
with little tolerance for cold. Their year-round presence in Florida 
represents the northern limit of their winter range (Lefebvre et al. 
2001, p. 425). Within Florida, they require stable, long-term sources 
of warm water during cold weather. Prolonged exposure to cold water 
temperatures can result in debilitation and death due to a phenomenon 
known as ``cold stress syndrome'' (Rommel et al. 2002, p. 16; Bossart 
et al. 2004, p. 437). An ambient water temperature of 68 degrees 
Fahrenheit (20 degrees Celsius) is generally considered as the lower 
threshold; below this temperature they have been observed to exhibit an 
increase in metabolic rate (Worthy et al. 1999, p. 4). When water 
temperatures begin to decrease to this temperature, manatees will 
aggregate within the confines of warm-water refuges or move to the 
southern tip of Florida. During periods of intense cold, they will 
remain at warm-water refuges; during warm interludes, they will move 
from the warm-water areas to feed, and return once again when water 
temperatures are too cold (Hartman 1979, p. 26; Deutsch et al. 2000, p. 
22; Stith et al. 2006, p. 24). Recent studies focusing on manatee use 
of natural warm-water sites include those by Koelsch et al. 2000, p. 
27; Taylor et al. 2005. p. 3; Taylor 2006, p. 5; USGS 2006, p. 3; 
Gannon et al. 2006, p. 133; Stith et al. 2006, p. iv; Reynolds and 
Barton 2005, 2008, p. 9; and Taylor and Provancha 2008, p. 2).
    Historically, manatees relied on the warm, temperate waters of 
south Florida and on natural warm-water springs scattered throughout 
the State as buffers to the lethal effects of cold winter temperatures. 
In part, as a result of human disturbance at natural sites (Laist and 
Reynolds 2005, p. 740), they have expanded their winter range to 
include industrial sites and associated warm-water discharges as 
refuges from the cold. Although manatees overwinter at major springs 
throughout peninsular Florida, nearly two-thirds of the population 
winters at industrial warm-water sites, which are now made up almost 
entirely of power plants (FWC FWRI, unpub. synoptic aerial survey 
data). The thermal discharge from power plants serves as an attractant 
to manatees because the temperature of the discharge is much warmer 
than the surrounding water temperature. Power plants in Brevard, Palm 
Beach, and Hillsborough counties maintain the largest winter 
aggregations of manatees throughout the winter. There are numerous 
research and monitoring studies that have documented historical and 
recent use by manatees at power plants ( Keith et al. 2008, p. 16; 
Reynolds 2007, 2009, p. 10; and Fonnesbeck et al. 2009, p. 563).
    The Crystal River springs complex in Citrus County and Blue Springs 
along the St. Johns River, in Volusia County, are the northernmost 
natural warm-water refuges in Florida used regularly by manatees. These 
and other natural springs in the State have experienced an increase in 
manatee use as the Florida population has grown (FWC FWRI, unpub. 
synoptic aerial survey data).
    Minor thermal refuges are also used by manatees throughout Florida. 
Most of these include canals or boat basins where warmer water 
temperatures persist as temperatures in adjacent bays and rivers 
decline.
    The loss of Florida's warm-water habitats is one of the leading 
threats facing the manatee population (Runge 2007a, p. 2). Reductions 
in spring flows, which affect manatee access and use of springs, are 
being addressed through the adoption of minimum flow regulations 
(Florida Springs Task Force 2001, p. 15). A minimum spring discharge 
rate that considered the estimated flow rates necessary to support 
overwintering manatees has been identified for Volusia County's Blue 
Spring and is expected to be adopted, pending the St. Johns River Water 
Management District's acceptance of a monitoring plan currently under 
development. Similarly, other springs used by manatees have been 
scheduled for, or are in the process of developing, minimum flow 
regulations. Those requirements would assure adequate flows are secured 
to support manatees. All Primary sites, except the Weeki Wachee/Mud 
Creek/Jenkins Creek complex, have been protected. Ten of

[[Page 1576]]

the 47 total known warm-water sites still require protection.
    In addition to protecting natural warm-water sites, efforts are 
under way to restore and improve them to enhance manatee use. As an 
example, the spring run at Homossassa Springs was dredged in 2006 to 
improve manatee access; since dredging, studies indicate that the run 
has been attracting more animals (Taylor 2009, pers. comm.).
    We and our partners are defining a network of migratory corridors 
based on manatee travel patterns and identifying other use areas to 
ensure protection of feeding, calving, and nursing areas throughout the 
State (FWC FWRI, unpub. data 2006; USGS FISC Sirenia Project, unpub. 
data 2006; Gannon et al. 2007, p. 134). Many of these sites are already 
known and are variously protected under the Florida Manatee Sanctuary 
Act, the Endangered Species Act, and the Marine Mammal Protection Act. 
We are currently completing an assessment of manatee habitat use at a 
number of natural warm-water sites throughout Florida. Recently, we 
initiated a study to predict manatee carrying capacity at natural warm-
water sites, and we are also evaluating effects to manatees in South 
Florida associated with Comprehensive Everglades Restoration Plan 
activities.
    Industrial thermal discharges are not a reliable source of warm 
water for the manatee population in the long term. Power plants can be 
eliminated due to plant obsolescence, environmental permitting 
requirements, economic pressures, and other factors, and can experience 
disruptions and temporary shutdowns. It is difficult to predict how 
manatees will respond to changes at artificial warm-water sites. In 
some instances manatees have been observed to use less preferred nearby 
sites, yet, in other cases when thermal discharges have been 
eliminated, manatees have died due to behavioral persistence or site 
fidelity (USFWS 2000, p. 74).
    Since release of the Service's 5-year status review in 2007, we 
have new information that two of the oldest power plants in Florida 
that attract the largest numbers of wintering manatees will be 
undergoing repowering over the next several years, and will continue to 
discharge warm water (USFWS 2007, p. 16). Repowering these facilities 
will reduce the probability of a catastrophic winter mortality event 
for the manatee population over the next several decades.
    We currently assess the status of the Florida manatee population 
according to regional management units within the State that reflect 
the winter-season site fidelity of individuals in the population, as 
manatees tend to return to the same warm-water sites each winter. The 
four regional management units are: an Atlantic Coast unit that 
occupies the east coast of Florida, including the Florida Keys and the 
lower St. Johns River north of Palatka; an Upper St. Johns River unit 
that occurs in the river south of Palatka; a Northwest unit that 
occupies the Florida Panhandle south to Hernando County; and a 
Southwest unit that occurs from Pasco County south to Whitewater Bay in 
Monroe County. Typical manatee habitat within these geographic 
boundaries is described in Table 1. Exchange of individuals between the 
management units is thought to be limited during winter months, based 
on data from telemetry (Reid et al. 1991, p. 185; Weigle et al. 2001, 
p. 18; Deutsch et al. 1998, p. 18, and 2003, p. 2) and photo-
identification (C. A. Beck, USGS FISC Sirenia Project, unpub. data, 
2009; K. Higgs, FWC FWRI, unpub. data, 2009). Movement between 
management units does occur during warm seasons, particularly along the 
same coast, and there are some documented cases of wide-ranging coastal 
movements and isolated events of intercoastal migration (Reid et al. 
1991, p. 185; Deutsch et al. 1998, p. 18, and 2003, p. 2; Beck 2009, 
pers. comm.).
    Although natural vegetation has diminished in some locations due to 
human activities, and exotic vegetation has increased in other areas, 
the availability of aquatic vegetation as forage is not known to be a 
limiting factor for manatees at this time (Orth et al. 2006, p. 994; 
G.A.J. Worthy, University of Central Florida, unpub. data 2006).

Population Status

    The most current information on Florida manatee population 
demographics (growth, survival, and reproductive rates) includes 
published studies by Runge et al. (2004, 2007b), Craig and Reynolds 
(2004), Kendall et al. (2004), and Langtimm et al. (2004), and 
unpublished reports by the Manatee Population Status Working Group 
(2005) and Runge et al. (2007a). All of these studies indicate that the 
manatee population is doing well throughout most of Florida. Population 
growth rates, determined using the Manatee Core Biological Model (Runge 
et al. 2004, p. 361, and 2007b), are as follows:


Northwest Region                                            4.0 percent
Upper St. Johns River Region                                6.2 percent
Atlantic Coast Region                                       3.7 percent
Southwest Region                                           -1.1 percent
 


    Craig and Reynolds (2004, p. 386) additionally suggested that 
populations of wintering manatees in the Atlantic Coast Region have 
been increasing at rates of between 4 and 6 percent per year since 
1994.
    In southwest Florida, estimates of adult manatee survival and 
reproduction are less precise than in the other regions of Florida 
because the time series of data is comparatively shorter for this 
region and there are no demographic data available for manatees in the 
southernmost part of this region. The estimates could also be biased 
low due to effects from temporary emigration (Langtimm et al. 2004, p. 
450; Langtimm 2009 pers. comm). Updated estimates of adult survival and 
growth rates for manatees in this region are anticipated in early 2010.
    The most current and best available count of the Florida manatee 
population is 3,807 animals, based on a single synoptic survey of warm-
water refuges and adjacent areas in January 2009 (FWC FWRI 2009 Manatee 
Synoptic Aerial Survey Data).

Critical Habitat

Current Critical Habitat Designation

    Critical habitat was designated for the Florida manatee (listed in 
that regulation as Trichechus manatus) in 1976 (50 CFR 17.95(a)) as 
follows: ``Florida. Crystal River and its headwaters known as King's 
Bay, Citrus County; the Little Manatee River downstream from the U.S. 
Highway 301 bridge, Hillsborough County; the Manatee River downstream 
from the Lake Manatee Dam, Manatee County; the Myakka River downstream 
from Myakka River State Park, Sarasota and Charlotte Counties; the 
Peace River downstream from the Florida State Highway 760 bridge, De 
Soto and Charlotte Counties; Charlotte Harbor north of the Charlotte-
Lee County line, Charlotte County; Caloosahatchee River downstream from 
the Florida State Highway 31 bridge, Lee County; all U.S. territorial 
waters adjoining the coast and islands of Lee County; all U.S. 
territorial waters adjoining the coast and islands and all connected 
bays, estuaries, and rivers from Gordon's Pass, near Naples, Collier 
County, southward to and including Whitewater Bay, Monroe County; all 
waters of Card, Barnes, Blackwater, Little Blackwater, Manatee, and 
Buttonwood Sounds between Key Largo, Monroe County, and the mainland of 
Dade County; Biscayne Bay, and all adjoining and connected lakes, 
rivers, canals, and waterways from the southern tip of Key Biscayne 
northward to and including Maule Lake, Dade County; all of Lake Worth, 
from its

[[Page 1577]]

northernmost point immediately south of the intersection of U.S. 
Highway 1 and Florida State Highway A1A southward to its southernmost 
point immediately north of the town of Boynton Beach, Palm Beach 
County; the Loxahatchee River and its headwaters, Martin and West Palm 
Beach Counties; that section of the intracoastal waterway from the town 
of Seawalls Point, Martin County to Jupiter Inlet, Palm Beach County; 
the entire inland section of water known as the Indian River, from its 
northernmost point immediately south of the intersection of U.S. 
Highway 1 and Florida State Highway 3, Volusia County, southward to its 
southernmost point near the town of Sewalls Point, Martin County, and 
the entire inland section of water known as the Banana River and all 
waterways between Indian and Banana Rivers, Brevard County; the St. 
Johns River including Lake George, and including Blue Springs and 
Silver Glen Springs from their points of origin to their confluences 
with the St. Johns River; that section of the Intracoastal Waterway 
from its confluences with the St. Marys River on the Georgia-Florida 
border to the Florida State Highway A1A bridge south of Coastal City, 
Nassau and Duval Counties.''
    No map was published with the 1976 designation. The earliest known 
record of a map created from the physical description of designated 
critical habitat for the Florida manatee was published by the Service's 
Office of Biological Services in 1980 (USFWS 1980). A more recent GIS 
depiction of the general locations of the designated critical habitat 
for the Florida manatee is shown in Figure 1.

Relevant Statutes and Regulations

    Critical habitat is defined in 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.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, or 
transplantation.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) of the Act requires consultation on Federal 
actions that may affect critical habitat. The designation of critical 
habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation does not allow the government or public to access private 
lands. Such designation does not require implementation of restoration, 
recovery, or enhancement measures by private landowners. Where a 
landowner requests Federal agency funding or authorization for an 
action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply, but even in 
the event of a destruction or adverse modification finding, the 
landowner's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, specific areas 
within the geographical area occupied by the species at the time it is 
listed must contain the physical and biological features essential to 
the conservation of the species, and be included only if those features 
may require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific data available, habitat areas containing the essential 
physical and biological features that provide for requisite life cycle 
needs of the species. Under the Act and regulations at 50 CFR 424.12, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed only when we 
determine that those areas are essential for the conservation of the 
species and that designation limited to those areas occupied at the 
time of listing would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Act (published in the Federal Register 
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 
515 of the Treasury and General Government Appropriations Act for 
Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated 
Information Quality Guidelines, provide criteria, establish procedures, 
and provide guidance to ensure that our decisions are based on the best 
scientific data available. They require our biologists, to the extent 
consistent with the Act and with the use of the best scientific data 
available, to use primary and original sources of information as the 
basis for recommendations to designate critical habitat.

Finding

    The current critical habitat designation for the Florida manatee 
was described before critical habitat regulations and guidance were 
developed; it does not identify specific physical and biological 
features essential to the conservation of the manatee for this species' 
habitat. Instead, it describes specific waterways that were known to be 
important concentration areas for manatees at that time. We recognize 
that the geographic areas originally described as manatee critical 
habitat need to be updated, based on recent scientific studies of 
manatee distribution, habitat use, and habitat needs as discussed 
above. Since the original designation, we have more information on the 
specific habitat needs of the Florida manatee, including the use of 
warm-water sites (Koelsch et al. 2000, p. 27; Taylor et al. 2005. p. 3; 
Taylor 2006, p. 5; USGS 2006, p. 3; Gannon et al. 2006, p. 133; Stith 
et al. 2006, p. iv; Reynolds and Barton 2005, 2008, p. 9; and Taylor 
and Provancha 2008, p. 2) as well as power plant discharges (Keith et 
al. 2008, p. 16; Reynolds 2007, 2009, p. 10; and Fonnesbeck et al. 
2009, p. 563, among others), that will allow us to identify the 
physical or biological features essential to manatee conservation. 
Therefore, based on this current and best available scientific and 
commercial information, we find that revising critical habitat for the 
Florida manatee under the Act is warranted.
    We intend to identify the physical and biological features 
essential to conservation of the species, in order to address the 
ecological and conservation needs of the Florida manatee. Given the 
significance of warm water to the survival of the manatee in Florida, 
the most essential feature will be the availability and adequacy of 
warm-water refugia. Additional features to be considered in the 
analysis may include

[[Page 1578]]

adequate forage within dispersal distance of a warm-water refuge, areas 
needed for calving and nursing, and important travel corridors for 
movements throughout Florida and beyond. The revision may include both 
additions and deletions to the current designation, and specific areas 
within and outside of the geographical area currently occupied by 
manatees. We find that incorporating these concepts into a revised 
critical habitat designation for the Florida manatee is important for 
identifying the specific areas essential to the conservation of the 
species or which contain the essential features. We request any 
additional information or input on these potential essential features.

How the Service Intends To Proceed

    Section 4(b)(3)(D)(ii) of the Act requires that if we find that a 
revision to critical habitat is warranted, then we are to indicate how 
we intend to proceed with such revision and promptly publish a notice 
of our intention in the Federal Register. We have reviewed the best 
available scientific data available, and we find that revisions to 
critical habitat for Florida manatee under the Act should be made. 
However, sufficient funds are not available due to higher priority 
actions such as listing-related actions pursuant to court orders and 
judicially-approved settlement agreements. We intend to undertake 
rulemaking to revise critical habitat for the Florida manatee when 
funding and staff resources become available.
    The resources available for listing actions, including critical 
habitat designations and revisions, are determined through the annual 
Congressional appropriations process. We cannot spend more than is 
appropriated for the Listing Program without violating the Anti-
Deficiency Act (31 U.S.C. 1341(a)(1)(A)). Recognizing that designation 
of critical habitat for species already listed would consume most of 
the overall Listing Program appropriation, Congress also put in place a 
critical habitat subcap within the overall Listing Program budget in FY 
2002 and has retained it each subsequent year. Thus, through the 
critical habitat subcap, and the amount of funds needed to address 
court-mandated critical habitat designations, Congress and the courts 
have in effect determined the amount of money available for critical 
habitat revisions. Therefore, the funds in the critical habitat subcap 
set the limits on our ability to designate critical habitat or revise 
existing designations in a given year.
    In FY 2002 and each year until FY 2006, we had to use virtually all 
of the funds available under the subcap to address court-mandated 
designations of critical habitat; consequently, none of the critical 
habitat subcap funds have been available for other designations. In FY 
2007, we were able to use some of the critical habitat subcap funds to 
fund proposed listing determinations for high-priority candidate 
species. In FY 2008, we were unable to use any of the critical habitat 
subcap funds to fund proposed listing determinations; however, we did 
use some of this money to fund the critical habitat portion of some 
proposed listing determinations. In those cases, the proposed listing 
determination and proposed critical habitat designation were combined 
into one rule, thereby increasing efficiency in our work. In FY 2009, 
we have been able to continue this practice. However, our current 
projection for FY 2010 is that all of the funding anticipated for the 
critical habitat portion of the listing allocation will be used to 
address court-ordered critical habitat designations. Therefore, we do 
not anticipate having any funding in FY 2010 available to work on 
additional critical habitat designations.
    Nonetheless, given the requirements of the relevant law and 
regulations, and constraints relating to workload and personnel, we 
have endeavored to make our critical habitat designation and revision 
actions as efficient and timely as possible. We are continually 
considering ways to streamline processes or achieve economies of scale, 
such as by batching related actions together as described above.
    We intend to proceed with a revision of critical habitat as soon as 
we have the necessary resources. Our critical habitat regulations (50 
CFR 424.12(c)) state that critical habitat will be defined by specific 
limits using reference points and lines on standard topographic maps of 
the area. Section 4(b)(2) of the Act requires that we consider 
economic, national security, and other impacts of designating critical 
habitat. Based on these authorities, and on the definition of critical 
habitat under the Act, once funding is available, we will take the 
following steps to propose the revision of designated critical habitat 
for the Florida manatee: (1) Determine the geographical area occupied 
by the species at the time of listing; (2) identify the physical or 
biological features essential to the conservation of the species; (3) 
delineate specific areas within the geographical area occupied by the 
species that contain these features, and that may require special 
management considerations or protection; (4) delineate any areas 
outside of the geographical area occupied by the species that are 
essential for the conservation of the species; and (5) conduct 
appropriate analyses under section 4(b)(2) of the Act; and (6) invite 
the public to review and provide comments on the proposed revision 
through a public comment period.
    We intend that any revisions to critical habitat for the Florida 
manatee be as accurate as possible. Therefore, even until we initiate 
the proposed designation we will continue to accept additional 
information and comments from all concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this finding.

Current Designation and Protections

    Until we are able to revise the critical habitat designation for 
the Florida manatee, the currently designated critical habitat, as well 
as areas that support manatee populations, but are outside the current 
critical habitat designation, will continue to be subject to 
conservation actions implemented under section 7(a)(1) of the Act. 
Federal agency actions are subject to the regulatory protections 
afforded by section 7(a)(2), which requires Federal agencies, including 
the Service, to ensure that actions they fund, authorize, or carry out 
are not likely to jeopardize the continued existence of any listed 
species or result in the destruction or adverse modification of 
critical habitat. We expect that the majority of regulatory projects 
will involve a Federal nexus, in which case consultation under section 
7(a)(2) would apply. In addition, federally funded or permitted 
projects affecting listed species outside their designated critical 
habitat areas may still result in jeopardy findings in some cases.
    Under section 7(a)(2) of the Act, if a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
(action agency) must enter into consultation with us. For most species, 
as a result of this consultation, we document compliance with the 
requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
     (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    Because manatees are marine mammals, they are protected under the 
Marine Mammal Protection Act of 1972

[[Page 1579]]

(MMPA). Section 17 of the Act provides that any more restrictive 
conflicting provisions of the MMPA take precedence over the Act (16 
U.S.C. 1543). Section 7(b)(C) of the Act identifies the necessary 
authorization pursuant to section 101(a)(5) of the MMPA for taking of 
an endangered or threatened marine mammal. Because the Service has not 
promulgated a rulemaking under MMPA section 101(a)(5), we do not issue 
incidental take authorization in conjunction with consultations on 
Federal actions under section 7(a)(2) of the Act. In order to ensure 
compliance with section 7(a)(2) of the Act and the more restrictive 
provisions of the MMPA, any Federal action that is determined as 
``likely to adversely affect the Florida manatee'' (USFWS 2008) will 
need to:
    (1) Modify the project to the extent that take is no longer 
reasonably certain to occur and/or:
     (2) Incorporate Service-approved take minimization and avoidance 
measures, as outlined in our 2009 Manatee Programmatic Biological 
Opinion (USFWS 2009).
    Therefore, although we are not immediately proceeding with a 
revision of the current critical habitat designation for the manatee, 
the current designation still provides protections to the manatee in 
addition to the protections afforded the manatee through listing under 
the Act and those provided under the MMPA.

References Cited

    A complete list of all references cited in this document is 
available, upon request, from the Jacksonville Ecological Services 
Field Office (see ADDRESSES section).

Author

    The primary author of this notice is staff with the U.S. Fish and 
Wildlife Service, Jacksonville Ecological Services Field Office (see 
ADDRESSES section).

Authority

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


    Dated: December 30, 2009.
Eileen Sobeck,
Acting Assistant Secretary of Fish Wildlife and Parks.

      Table 1. Regional description of manatee habitat and region-specific threats for manatees in Florida
----------------------------------------------------------------------------------------------------------------
                                                                                                Upper St. Johns
            Features                   Northwest           Southwest        Atlantic Coast     River Management
                                    Management Unit     Management Unit     Management Unit          Unit
----------------------------------------------------------------------------------------------------------------
Geographic Boundaries             Located along       Located along       Includes Florida's  This unit is
                                   Florida's           Florida's           coastal areas       located upstream
                                   northwest coast,    southwest coast,    from south of the   of Palatka,
                                   the southern        the northern        mouth of            Florida,
                                   boundary of the     boundary is         Whitewater Bay,     extending to the
                                   unit is defined     described by the    through Florida     headwaters of the
                                   by the Hernando-    Pasco-Hernando      Bay and north to    St. Johns River.
                                   Pasco County        County line,        the mid-Atlantic
                                   line. While the     extending south     region. The unit
                                   majority of use     to the mouth of     extends into the
                                   occurs east of      Whitewater Bay,     St. Johns River
                                   the Wakulla         along the western   as far south as
                                   River, manatees     margin of the       Palatka.
                                   from this unit      Everglades.
                                   range as far west
                                   as Texas.
----------------------------------------------------------------------------------------------------------------
Habitat Description               This unit           This unit           This unit           This freshwater
                                   incorporates        primarily           primarily           system includes
                                   coastal seagrass    includes in-shore   includes in-shore   extensive eel
                                   beds which extend   and near-shore      seagrass beds,      grass beds
                                   from the            seagrass beds,      which border        bordered largely
                                   shoreline out to    which border        mangrove systems    by cypress and
                                   the Gulf of         mangrove systems    to the south.       hardwood swamps.
                                   Mexico.             to the south.       Predominant         There are
                                   Significant         Tampa Bay,          features include    numerous rivers
                                   features include    Charlotte Harbor,   Florida Bay, the    and lakes that
                                   the spring-fed      and the             Florida Keys,       make up this
                                   Wakulla,            Caloosahatchee      Biscayne Bay, and   system. Notable
                                   Suwannee,           River are           barrier islands     features include
                                   Crystal, and        dominant coastal    and inland          the Ocklawaha
                                   Homosassa River     features. There     waterways that      River (dammed),
                                   systems, which      are numerous        extend into the     Lake George, Lake
                                   empty into the      barrier islands     mid-Atlantic        Woodruff, and
                                   Gulf.               south of Tampa      region.             Lake Monroe.
                                                       Bay, accompanied    Significant         There are many
                                                       by passes, inland   waterways include   small, spring-fed
                                                       waterways, etc.     the Indian River    tributaries that
                                                       Tidal rivers and    Lagoon, Banana      discharge into
                                                       creeks are common   River, and          this system.
                                                       in this area.       Mosquito Lagoon.
                                                                           From north
                                                                           Florida and into
                                                                           more northerly
                                                                           states, habitats
                                                                           are typified by
                                                                           large coastal
                                                                           rivers, such as
                                                                           the St. Johns
                                                                           River and coastal
                                                                           marshes.
----------------------------------------------------------------------------------------------------------------

[[Page 1580]]

 
Winter Sites                      Crystal River       TECO Big Bend       Reliant Energy      Blue Spring
                                   Springs Complex     Power Plant         Power Plant         (Volusia)Silver
                                   (Citrus)            (Hillsborough)      (Brevard)           Glen Springs
                                  Homosassa River     Warm Mineral        FPL Canaveral        (Marion)
                                   Springs Complex     Springs             Power Plant        DeLeon Springs
                                   (Citrus).           (Sarasota).         (Brevard County,    (Volusia)
                                  Weeki Wachee/ Mud   Matlacha Isles       FL).               Salt Springs
                                   Creek/ Jenkins      (Lee).             FPL Riviera Beach    (Marion)
                                   Creek Springs      FPL Ft. Myers        Power Plant (Palm  Ocklawaha River
                                   (Hernando).         Power Plant (Lee).  Beach).             SpringsComplex
                                  Progress Energy     Port of the         FPL Port             (Marion/Lake)
                                   Crystal River       Islands (Collier).  Everglades Power
                                   Power Plant        Progress Energy      Plant (Broward).
                                   (Citrus).           Anclote Plant      FPL Fort
                                  Manatee/Fanning      (Pasco).            Lauderdale Power
                                   Springs (Dixie).   TECO Gannon Plant    Plant (Broward).
                                  Wakulla/St. Mark's   (Hillsborough).    Coral Gables
                                   Complex (Wakulla). Progress Energy      Waterway (Dade).
                                                       Bartow Power       Sebastian River (C-
                                                       Plant (Pinellas).   54 canal)
                                                      Ten Mile Canal       (Brevard).
                                                       Borrow Pit (Lee).  Vero Beach Power
                                                      Franklin Locks       Plant (Indian
                                                       (Lee).              River).
                                                      Spring Bayou/       Henry D. King
                                                       Tarpon Springs      Electric Station -
                                                       (Pasco).             Ft. Pierce
                                                      Forked Creek         Utilities (St.
                                                       (Sarasota).         Lucie).
                                                      Tamiami Canal at    Big Mud Creek (
                                                       Wootens (Collier).  St. Lucie).
                                                      Big Cypress         Berkeley Canal
                                                       National Preserve   (Brevard).
                                                       Headquarters       Black Point Park/
                                                       Canal (Collier).    Black Creek (Dade
                                                       Sulphur Springs     County).
                                                       (Hillsborough).    Palmer Lake
                                                                           (Dade)Little
                                                                           River (Dade).
                                                                          Turkey Point Canal
                                                                           (Dade).
                                                                          C-111 canal and
                                                                           canal just west
                                                                           of Card Sound
                                                                           Bridge (Dade).
                                                                          Biscayne Canal
                                                                           (Dade).
                                                                          Banana River
                                                                           Marine Service
                                                                           Marina (Brevard).
                                                                          Canals/Coves,
                                                                           Upper Keys
                                                                           (Bayside of Key
                                                                           Largo) (Monroe).
                                                                          Harbor Branch
                                                                           canal (St. Lucie).
----------------------------------------------------------------------------------------------------------------

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