[Federal Register Volume 63, Number 177 (Monday, September 14, 1998)]
[Rules and Regulations]
[Pages 49035-49041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24357]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 227
[Docket No. 980811214-8214-01; I.D. 052493B]
Endangered and Threatened Species; Threatened Status for
Johnson's Seagrass
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is issuing a final rule determining Johnson's seagrass
(Halophila johnsonii) to be a threatened species pursuant to the
Endangered Species Act (ESA) of 1973, as amended, which means it is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. Johnson's
seagrass is rare and exhibits one of the most limited geographic
distributions of any seagrass. Within its limited range (lagoons on the
east coast of Florida from Sebastian Inlet to central Biscayne Bay), it
is one of the least abundant species. Because of its limited
reproductive capacity (apparently only asexual) and limited energy
storage capacity (small root-rhizome structure and high biomass
turnover), it is less likely to be able to repopulate an area when lost
due to anthropogenic or natural disturbances. NMFS will soon issue
protective regulations under section 4(d) of the ESA for this species.
DATES: Effective October 14, 1998.
ADDRESSES: Colleen Coogan, NMFS, Southeast Region, Protected Resources
Division, 9721 Executive Center Drive, St. Petersburg, FL 33702-2432;
Angela Somma, NMFS, Office of Protected Resources, 1315 East-West
Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Colleen Coogan, Southeast Region,
NMFS, (727) 570-5312, or Angela Somma, Office of Protected Resources,
NMFS, (301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
NMFS published a proposed rule to list Johnson's seagrass as a
threatened species on September 15, 1993 (58 FR 48326). Designation of
critical habitat was proposed on August 4, 1994 (59 FR 39716). A public
hearing on both the proposed listing and critical habitat designation
was held in Vero Beach, Florida, on September 20, 1994. NMFS reopened
the comment period for the proposed listing on April 20, 1998 (63 FR
19468).
The information forming the basis for NMFS' 1993 proposal has been
peer reviewed, and new information confirms NMFS' conclusions regarding
the threatened status of Johnson's seagrass. As stated in the notice
reopening the comment period, the additional information supplements
available data on the status and distribution of Johnson's seagrass. In
order to update the original status report (Kenworthy, 1993) and to
include information from new field and laboratory research on species
distribution, ecology, genetics and phylogeny, NMFS convened a workshop
on the biology, distribution, and abundance of H. johnsonii. The
results of this workshop, held in St. Petersburg, Florida, in November
1996, were summarized in the workshop proceedings (Kenworthy, 1997)
submitted to NMFS on October 15, 1997. The notice reopening the comment
period contains a summary of the workshop proceedings (63 FR 19468).
This final rule contains a brief description of those workshop
proceedings, and updates the research findings and analysis since NMFS'
1993 proposal.
Updated Status Report
The biology of Johnson's seagrass is discussed in the proposed rule
to list the species as threatened (58 FR 48326, September 15, 1993).
The proposed rule includes information on the status of the species,
its life history characteristics, and habitat requirements. Johnson's
seagrass is one of twelve species of the genus Halophila. Halophila
species are distinguished morphologically from other seagrasses in
their possession of either a pair of stalked leaves without scales or a
pseudo whorl of leaves. Identifying characteristics of H. johnsonii
include smooth foliage leaves in pairs 10-20 mm long, a creeping
rhizome stem, sessile (attached to their bases) flowers, and longnecked
fruits. Most Halophila species are reduced in size, more shallow
rooted, and have two to three orders of magnitude less biomass per unit
area compared to all other seagrasses. The most outstanding difference
between H. johnsonii and other species is its distinct differences in
sexual reproductive characteristics. While H. decipiens is monoecious
(has both female and male flowers on the same plant) and successfully
reproduces and propagates by seed, H. johnsonii is dioecious (has
flowers of a single sex on the same plant). However, the male flower
has never been described either in the field or in laboratory culture.
The absence of male flowers supports the hypothesis that sexual
reproduction is absent in this species, and propagation must be
exclusively vegetative. After periods of unfavorable environmental
conditions of growth and vegetative branching, the regrowth and
reestablishment of surviving populations of Johnson's seagrass would be
significantly more difficult than for species with a sexual life
history.
[[Page 49036]]
The status review that led to the proposed rule to list this
species as threatened under the ESA included data from extensive field
work at three sites (Hobe and Jupiter sounds, Sebastian Inlet, and Ft.
Pierce Inlet) in the Indian River area during 1990 to 1992. Johnson's
seagrass was the least abundant of the seagrass species within the
study area and was distributed in patches that range in size from a few
centimeters to hundreds of meters. Biomass, patch sizes, and leaf pair
densities were always less than those measured in H. decipiens. The
destruction of the benthic community due to boating activities,
propeller dredging and anchor mooring was observed at all sites during
this study.
Based on new qualitative and quantitative benthic surveys and
interviews with scientists, the workshop report confirmed the extremely
limited geographic distribution of H. johnsonii to patchy and
vertically disjunct populations between Sebastian Inlet and northern
Biscayne Bay on the east coast of Florida, finding no verifiable
sightings outside the range already reported. Since additional surveys
did not locate any male flowers, nor was seedling recruitment
confirmed, the restricted distribution and abundance of Johnson's
seagrass is attributed to a reliance on vegetative means of
reproduction and growth (Kenworthy, 1993; Kenworthy, 1997). High
densities of apical meristems, rapid rates of horizontal growth, and a
fast biomass turnover were suggested to explain the appearance and
disappearance of H. johnsonii observed in disturbed areas and on fixed
survey transects. The workshop report confirms the conclusions from the
previous data.
The results of expanded surveys during the period 1994 to 1996
corroborated previous information that: (1) H. johnsonii does not occur
further north than Sebastian Inlet; and (2) areal distribution is
patchy and disjunct from Sebastian Inlet to Jupiter Inlet.
Additionally, these transects confirmed that H. johnsonii occurs over a
depth range extending from the intertidal down to approximately -2 m
mean tidal height. Average percent cover of H. johnsonii per transect
ranged from a minimum of 0.2 percent in winter 1996 to 8.5 percent in
summer 1994. Relative to the other six species that occur in the
lagoon, H. johnsonii comprises less than 1.0 percent of the total
abundance of seagrasses. The transect data corroborates previous
intensive surveys in Jupiter and Hobe sounds, and near Fort Pierce
Inlet (Kenworthy, 1993; Gallegos and Kenworthy, 1995; Kenworthy, 1997).
The potential for vegetative expansion, a perennial and intertidal
growth habit, and a relatively high tolerance for fluctuating salinity
and temperature may enable Johnson's seagrass to colonize and thrive in
environments where other seagrasses cannot survive (Kenworthy, 1993;
Kenworthy, 1997). Additional molecular genetic information was reviewed
in the workshop which supports distinguishing H. johnsonii as a
separate species from H. decipiens (Kenworthy, 1993), although more
detailed and extensive phylogenetic studies were suggested to determine
the origin and source of genetic diversity in Johnson's seagrass
(Kenworthy, 1997). The first quantitative evidence of faunal community
diversity and abundance in H. johnsonii meadows was also reported at
this workshop. Results indicated that the infaunal communities of H.
johnsonii are more similar to the larger seagrass, Halodule wrightii
than to unvegetated bottom.
It is the policy of NMFS and the U.S. Fish and Wildlife Service
(FWS) to solicit the expert opinions of three appropriate and
independent specialists regarding pertinent scientific or commercial
data and assumptions relating to the taxonomy, population models, and
supportive biological and ecological information for species under
consideration for listing. Also, it is NMFS' policy to summarize in the
final decision document the opinions of all independent peer reviews
received and to include all such reports, opinions, and other data in
the administrative record of the final decision.
In response to NMFS's three solicitations of peer review on
Johnson's seagrass, a response was received from Susan Williams, Ph.D.,
Associate Professor, Department of Biology and Director, Coastal and
Marine Institute, College of Sciences, San Diego State University and
from Kimon T. Bird, Ph.D., Center for Marine Science Research,
University of North Carolina at Wilmington. Their opinions, which
support the NMFS listing proposal, are included in the following
Summary of Comments section.
Summary of Comments
The State of Florida's Department of Environmental Protection
(FDEP) and Department of Community Affairs (DCA) submitted several sets
of comments. Many of these comments pertained to the consideration of
critical habitat designation, which is not being determined in this
rulemaking. For this present rule, NMFS will address only the comments
related to the listing of Johnson's seagrass as threatened.
The December 8, 1993, comments from FDEP concurred that threatened
status under the ESA should be assigned to Johnson's seagrass because
its distribution is among the most restricted of seagrass species,
because it lacks sexual reproduction, and because it depends on
vegetative reproduction. All of these factors make it particularly
vulnerable to local extinction from various perturbations or
environmental changes.
FDEP stated that johnsonii and other Halophila species have been
shown to have relatively high productivity and turnover rates and may
be more ecologically important than previously thought. Designation as
a threatened species would encourage further study of Johnson's
seagrass and would assist FDEP in developing conservation plans. Also,
FDEP agreed with NMFS that existing protection for this species was
inadequate.
FDEP included the following caveats: First, the presently known
geographical locations include several inlets that have regularly
experienced maintenance dredging (one since 1948). Yet Johnson's
seagrass is still evident around these inlets and in other areas of
high human use. It could be argued that maintenance dredging has
enhanced this species, or at least not harmed it. Second, the proposed
rulemaking states that there is no evidence that commercial,
recreational, scientific or educational activities have contributed to
the decline of this species. If this species is listed, what more needs
to be done to protect it? Third, identification of this species is
difficult except by seagrass experts. Those individuals surveying sites
need to understand how to clearly identify H. johnsonii in the field.
In March 1994, NMFS received additional comments from FDEP
concerning the listing proposal, stating that Johnson's seagrass has
only recently been recognized as a separate species and that FDEP is
seriously concerned with the general lack of knowledge about the
organism, especially the many aspects of basic life history. FDEP
assumed that the listing of this species as threatened under the ESA
should promote the collection of additional knowledge for improved
management decisions, including the ability to properly identify the
plant in the field. Other Halophila species have been underestimated
regarding their importance to nearshore ecosystems, and the FDEP did
not want this species to be overlooked if it had a significant role.
FDEP recommended that NMFS consider conducting an appropriate research
program linked to the listing process and that more must be known
[[Page 49037]]
about the species so that the most appropriate management strategies
can be developed. FDEP restated the caveats made in the December 1993,
response.
In September 1994, FDEP commented that the steps being taken by
NMFS are necessary to adequately protect this species from loss
associated with human-related activities. Although FDEP had
reservations as to the effects of inlet-related maintenance activities
on the continued existence of Johnson's seagrass, it noted that it is
clear that direct removal of existing seagrass will be detrimental to
the survival of this species. It supported listing the species as a
threatened species.
In January 1994 and June 1994, DCA responded to NMFS' request for a
coastal zone consistency determination for the designation of critical
habitat for Johnson's seagrass. Although DCA referred to both the
proposed listing and critical habitat designation in responses to NMFS,
the comments from individual state agencies and departments addressed
primarily the critical habitat portion.
In 1998, DCA wrote, on behalf of the state, that it does not object
to the listing of Johnson's seagrass as a threatened species.
Other Comments
Issue 1: Several commenters questioned whether NMFS has adequate
information to determine that Johnson's seagrass should be listed.
Others questioned whether it is a separate species rather than a
possible mutation or an exotic species not native to the area. Some
questioned whether NMFS could list a species without knowing how it
reproduces.
One of the peer reviewers, Dr. Susan L. Williams, stated that while
there are data gaps for the species and such data should be obtained,
it is justifiable to extrapolate from other species in the genus
because seagrass congeners are remarkably alike in their ecology. While
it is important to clarify the taxonomic status of the species, it is
not an issue that needs to be resolved before listing because the
morphology of H. johnsonii is distinct enough from H. decipiens to
enable field identification and thus its distribution across habitats.
In response to questions on whether H. johnsonii is a separate
species, another peer reviewer, Dr. Kimon T. Bird, stated that the
morphological and flowering characteristics of this species are
markedly different from the conspecific species H. engelmanii and H.
decipiens. Recently, H. johnsonii was compared to other Halophila
species from Florida and the Indo-Pacific using isozymes sulfated
flavonoids and DNA fingerprinting (Jewett-Smith et al. 1997). Based on
these analyses, H. johnsonii separates out well from other Halophila
species in Florida and appears more similar to the narrow leaved forms
of the Indo-Pacific based on the use of this DNA analysis.
Regarding the mode of reproduction, Dr. Bird stated that the data
provided support the absence of seeds, and he agrees that this species
reproduces only by asexual methods. Dr. Williams states that there is
concern about the lack of evidence of sexual reproduction since male
flowers have not been observed in H. johnsonii. Furthermore, the sexual
reproduction by seagrasses is poorly understood compared to other
angiosperms (e.g. seaweeds), and there have been cases where further
studies have revised conclusions on asexuality. Apomixis (vegetative
reproduction where normal sexual processes are not functioning or
greatly reduced in number) has not been verified in seagrasses.
Nonetheless, considerable field surveys and collections have been
conducted on H. johnsonii to conclude that if males and/or viable seeds
do occur, they are quite rare in the areas studied. Thus, the
attributes of potentially limited distribution, rare (if present at
all) sexual reproduction, and uncertain vegetative dispersal makes the
species prone to disturbance. Dr. Williams also concludes that limited
and isolated populations of H. johnsonii that rely primarily on
vegetative dispersal are probably very prone to local extinction due to
disturbances and stochastic events. The numerous field searches and
laboratory transplant culture experiments have indicated the presence
of pistillate flowers (no staminate flowers (i.e., only asexual
reproduction) over the 16 years since H. johnsonii was first described.
NMFS Response: The 1996 NMFS sponsored workshop addressed several
of these concerns. For example, since additional surveys have not
located any male flowers, nor has seedling recruitment been confirmed,
the workshop report attributed the distribution and abundance of
Johnson's seagrass to a reliance on vegetative means of reproduction
and growth. High densities of apical meristems, rapid rates of
horizontal growth, and a fast leaf turnover were suggested to explain
the appearance and disappearance of H. johnsonii observed in disturbed
areas and on survey transects. The workshop report suggests that this
potential for vegetative expansion, a perennial and intertidal growth
habit, and a relatively high tolerance for fluctuating salinity and
temperature may enable Johnson's seagrass to colonize and thrive in
environments where other seagrasses cannot survive.
Additional molecular genetic information was reviewed in the
workshop which supports distinguishing H. johnsonii as a separate
species from H. decipiens, although more detailed and extensive
phylogenetic studies were suggested to determine the origin and source
of genetic diversity in Johnson's seagrass.
Issue 2: Some commenters believe the species is much more abundant
in South Florida than the status review indicates and that it occurs in
places other than the east coast of Florida (e.g., Bahamas or Florida
west coast).
Dr. Bird states that he contacted three trained marine botanists
along the west coast of Florida. They reported that they had never seen
H. johnsonii along the west coast. In addition, McMillan made no
reference to its presence in Texas when writing the paper describing
the new species, even though he is far more familiar with the marine
botany of Texas than Florida. While several commenters reported seeing
it in the Bahamas, their observations were anecdotal. Based on the
information provided, Dr. Bird concurs that H. johnsonii is limited to
a narrow geographic range along the east coast of Florida.
Dr. Williams states that knowledge of the distribution of H.
johnsonii throughout the subtropical and tropical Atlantic should be
extended, but it should not affect listing the species because in its
known distribution, it is vulnerable to disturbances of dredging and
reduced water clarity, as are all the co-occurring seagrass species.
NMFS Response: In 1986, Robert Virnstein (St. John's River Water
Management District) and Kalani Cairns (U.S. Fish and Wildlife Service)
mapped a 50-mile section of the Indian River Lagoon from St. Lucie
Inlet to Sebastian Inlet. Even though H. johnsonii and H. decipiens
seemed to be proliferating, data did not indicate whether this was a
trend or a one-time increase. Also, because both species have short
leaves, they may have been overlooked in previous surveys. They stated
that 1986 was considered a ``good'' year for seagrasses even though
many areas were ``stressed'' and had lost seagrasses. Furthermore, they
opined that one ``bad'' year could result in the loss of up to half of
the present coverage and no one could predict whether such loss would
be permanent or that the species would recover.
Virnstein and Morris (1996-personal communication) have said that
their 3-year study of 74 seagrass transects in the
[[Page 49038]]
Indian River Lagoon has yielded information on deeper water
distributions measuring a few centimeters to more than several hundred
meters. These results do not change the distributional limits within
the original range of the species.
The report of the NMFS workshop confirms the extremely limited
geographic distribution of H. johnsonii to patchy and vertically
disjunct areas between Sebastian Inlet and northern Biscayne Bay on the
east coast of Florida, finding no verifiable sightings outside of the
range already reported. This finding is based on new qualitative and
quantitative benthic surveys and interviews with scientists.
Issue 3: Some commenters remarked that it is difficult to identify
Johnson's seagrass in the field and that those reviewing sites need to
understand how to clearly identify the species.
NMFS Response: Distinct morphological differences allow for both
field and laboratory differentiation of the species. H. johnsonii is
distinct from the conspecific H. decipiens in basic leaf
characteristics. H. johnsonii has elongated linear leaves with complete
margins and H. decipiens has broad, elliptical (paddle-shaped) leaves
with serrated margins. Increased outreach after listing, including
recovery planning and section 7 consultations, will improve
stakeholders' familiarity with these differences.
Issue 4: Some commenters questioned the presence of Johnson's
seagrass near inlets that have been routinely dredged for years and in
other areas of high human usage. The question is whether certain
dredging, especially maintenance dredging, impacts Johnson's seagrass,
or whether the species occurs in these areas as a result of dredging.
NMFS Response: The effects of maintenance dredging on Johnson's
seagrass have not yet been characterized. Johnson's seagrass requires
suitable salinity levels, water transparency, and water quality as well
as stable, unconsolidated sediments. These elements are found in
shallow waters and shoals around inlets and disturbed areas as well as
in undisturbed, more isolated deeper areas of the lagoon. Common
factors in its distribution appear to be its ability to grow in
association with other species and its ability to survive in shallow
intertidal flats environments typical of the flood tide deltas near
inlets. Johnson's seagrass may extend the coverage of seagrasses within
lagoons in some of the zones where other grasses do not grow.
Dr. Bird questions the ability of H. johnsonii to withstand nearby
dredging activities because the sediments of the Indian River contain a
good deal of highly organic particulate materials. When resuspended by
dredging activities or other physical disturbances, the fine
particulate material can attenuate light (reducing Photosynthetically
Active Radiation (PAR)) and be a limiting factor in photosynthesis and
subsequent seagrass growth and maintenance.
Several scientists working in the area and for the state of Florida
stated that it is clear that direct removal of existing seagrass
through new construction will be detrimental to the survival of
Johnson's seagrass. There have been no reports of healthy populations
outside the presently known range. The survival of the species likely
depends on maintaining existing viable populations, especially in areas
where large patches are found.
Issue 5: Some commenters said that seagrasses have overwhelming
importance to the ecology and economy of South Florida. Seagrasses are
high primary producers within their ecosystem. They provide valuable
habitat as nurseries, provide refuge for fisheries, and recycle
nutrients throughout their ecosystems. Seagrasses are also a food
source for endangered green turtles and the Florida manatee. When
seagrass beds disappear, fishery productivity also decreases. They
noted that declines in seagrass beds have been documented worldwide,
particularly in the Indian River Lagoon, the primary habitat of H.
johnsonii.
NMFS Response: NMFS agrees that seagrasses play an important role
in their ecosystems and provide valuable habitat. The vulnerability of
seagrasses in general and H. johnsonii in particular, provides the
impetus for this listing.
Issue 6: Some commenters said that the species should be listed as
endangered rather than threatened, and that NMFS underestimated the
effects of climate change and increasing development and population
growth in Florida.
NMFS Response: NMFS believes that only limited information exists
regarding Johnson's seagrass, reproductive capacity, life history
characteristics (growth rates, environmental requirements), and the
effects of human disturbance which would be necessary in determining
that Johnson's seagrass is in danger of extinction throughout all or a
significant portion of its range. The protection afforded by listing as
threatened will result in the subsequent development of a recovery plan
for H. johnsonii. The recovery plan will address the gaps in our
knowledge of the biology and ecology of Johnson's seagrass, and such
knowledge will, in turn, lead to a better understanding of the
demography and population biology of this species.
Dr. Bird states that although the evidence points to a valid
species with a limited distribution, the questions of its degree of
extinction is more difficult to resolve. Halophila species as a whole
appear to be patchy with few species developing extensive stands.
However, he agrees with NMFS' conclusions that human activities in the
area could impact the species. Existing criteria and standards, as well
as enforcement measures, are inadequate to protect seagrasses.
Issue 7: Several commenters expressed concern about whether
maintenance dredging of existing inlets and channels would be allowed
to continue if Johnson's seagrass is listed.
NMFS Response: NMFS is concerned about the possibility of losing
patches of Johnson's seagrass that may be essential to the genetic
viability of the species. However, NMFS expects that maintenance
dredging activities will be authorized with the oversight provided by
section 7 of the ESA.
Issue 8: Several commenters were concerned that the listing of
Johnson's seagrass would prevent or severely curtail expansion or
development of ports and maintenance of existing ports, channels and
inlets. In turn, this would adversely affect the economy in their
communities.
NMFS Response: The ESA mandates that listing determinations be made
solely on the basis of the best scientific and commercial data
available after conducting a review of the status of the species and
taking into account those conservation efforts being made by any state.
However, section 7 of the ESA provides a mechanism for actions
requiring Federal funding permits or participation to be conducted in a
manner that prevents jeopardy to any species. Therefore, NMFS
anticipates that most marine related activities can continue when
measures are taken through the section 7 consultation process with
Federal agencies to reduce adverse impacts and avoid jeopardizing the
continued existence of the species.
Issue 9: Some commenters stated that any threats to the habitat
could be corrected or were being corrected without the species being
listed. For example, problems due to prop scarring could be resolved by
marking navigation channels and establishing speed zones. Several
counties are installing storm water management systems to improve
[[Page 49039]]
water quality. Maintenance dredging is regulated by the state, and
spoil is now deposited on beaches to protect shorelines rather than on
spoil islands.
NMFS Response: Other embayments in the distributional range of
Johnson's seagrass have marked navigational channels, but seagrass bed
scarring still occurs. ``Many of the sea-grass beds in the Indian River
Lagoon have prop scars resulting from boaters attempting to cross
shallow waters and running aground'' (Indian River Lagoon Comprehensive
Conservation and Management Plan, May 1996). Erosion caused by damage
from boat wakes may also result in turbidity and siltation, which
adversely affect seagrass.
Issue 10: One commenter wrote that the updated information
provided by NMFS reveals that the species is doing well, and shows no
signs of decrease in health or population. The commenter also wrote
that its geographic range was, if anything, larger than what was
reported in 1993.
NMFS Response: In order to update the original status report
(Kenworthy, 1993) and to include information from new field and
laboratory research on species distribution, ecology, use, genetics and
phylogeny, NMFS convened a workshop on the biology, distribution, and
abundance of H. johnsonii. The results of this workshop, held in St.
Petersburg, Florida, in November 1996, have been summarized in the
workshop proceedings (Kenworthy, 1997) submitted to NMFS on October 15,
1997. The new information confirmed NMFS' original determination that
the species should be listed as threatened. This final rule is based on
updated information.
Issue 11: Some commenters noted that in the proposed rule, NMFS
stated that there is no evidence that the overutilization for
commercial, recreational, scientific or educational purpose contributed
to the decline of Johnson's seagrass. If this listing factor has not
contributed to the decline, they questioned what more needs to be done
to protect the species.
NMFS Response: This factor refers to the actual use of the species
itself. For example, if a plant were harvested commercially for food,
medicines, or other products, this use might have contributed to the
decline of the organism. Johnson's seagrass habitat may be affected by
other resource harvesting activities in the ecosystem, but the species
itself is not used for commercial, recreational, or educational
activities.
Issue 12: Several commenters stated that there are adequate Federal
and State laws to protect all seagrasses which make the additional
protection afforded by the ESA unnecessary.
NMFS Response: While it is clear that the intent of Federal and
Florida state laws is to conserve and protect seagrass habitat, it is
also clear that there is continued and well-documented loss of seagrass
habitat in the United States and elsewhere. For example, seagrasses
have declined in many areas of the Indian River Lagoon (Virnstein and
Morris, 1996).
Previous transplantation efforts to mitigate for the loss of
seagrass beds have failed. Until recently, Halophila species have not
been transplanted successfully in the field and studies underway are
incomplete (Kenworthy-personal communication). Many seagrass ecosystems
are known to recover very slowly even under the most natural, pristine
conditions. Current efforts are insufficient to protect critical
seagrasses. This was also the conclusion and recommendation of
scientists attending the International Seagrass Workshop in Kominato,
Japan in August 1993.
NMFS believes that Johnson's seagrass needs the additional
protection of listing, including consideration of effects of Federal
actions on the species through the section 7 consultation process of
the ESA. During consultation with other Federal agencies, NMFS can
ensure that any federally funded, permitted, or authorized activity
includes adequate measures to reduce adverse impacts from these
activities and to prevent jeopardizing the continued existence of the
species.
Issue 13: One commenter wrote that NMFS had exceeded the time
limit for making a final determination after proposing to list
Johnson's seagrass as threatened in 1993.
NMFS Response: In 1989, NMFS was notified by the FWS that it had
received information indicating that H. johnsonii was a rare species
which may need to be listed under the ESA. By 1993, NMFS had gathered
enough information to propose listing the species as threatened. In
1994, NMFS proposed critical habitat for the species. A joint public
hearing was held on both the proposed listing and proposed critical
habitat. The proposed critical habitat designation was very
controversial. Because of the controversy and new NMFS/FWS polices on
listing, NMFS postponed the final listing decision until information
used to make the original proposal had been peer reviewed and
additional information gathered. Peer review of the original
information and the results of new studies confirmed NMFS' original
determination that the species should be listed as threatened. The new
information was reviewed at a technical workshop in November 1996, and
summarized in a report in October 1997. In addition to gathering new
information, the final listing was delayed by the year-long
Congressionally imposed moratorium on listing species in fiscal year
1996.
Summary of the Factors Affecting the Species
After a thorough review and consideration of all information
available, NMFS concludes that H. johnsonii warrants listing as a
threatened species. Procedures found at section 4(a)(1) of the ESA (16
U.S.C. 1531 et seq.) and regulations (50 CFR part 424) promulgated to
implement the listing provisions of the ESA were followed. A species
may be determined to be endangered or threatened due to one or more of
the five factors described in section 4(a)(1). These factors and their
application to H. johnsonii are as follows:
1. Present or Threatened Destruction, Modification or Curtailment
of its Habitat or Range.
Habitat within the limited range in which H. johnsonii exists is at
risk of destruction by a number of human and natural perturbations
including (1) dredging; (2) prop scoring; (3) storm surge; (4) altered
water quality; and (5) siltation. Due to the fragile nature of H.
johnsonii's shallow root system, the plants are vulnerable to human-
induced disturbances in addition to the major natural disturbances to
the sediment, and their potential for recovery may be limited.
Destruction of benthic communities due to boating activities (propeller
scarring and anchor mooring) was observed at all H. johnsonii sites
during the NMFS study. Further, this condition is expected to worsen
with the predicted increase in boating activity. This severely disrupts
the benthic habitat by breaching root systems and severing rhizomes,
and significantly reducing the viability of the community.
Turbidity is a critical factor in the distribution and survival of
seagrasses, especially in deeper regions of the lagoon, where reduced
PAR limits photosynthesis. Shallow regions are less affected by
turbidity unless light is rapidly attenuated. In interior lagoonal
areas where salinity is low, highly colored water typically is
discharged via drainage systems. Stained waters attenuate shorter
wavelengths rapidly, removing important PAR as well as potentially
stressing plants due to the low salinity. This is a critical factor,
especially in the vicinity of Sebastian,
[[Page 49040]]
St. Lucie, Jupiter, and Ft. Pierce Inlets, and Lake Worth and North
Biscayne Bay where freshwater reaches the flood tide delta and nearby
seagrass meadows via rivers and canal systems that discharge into the
lagoon.
Trampling due to human disturbance and increased land-use induced
siltation can threaten viability of the species. Degradation of water
quality due to human impact is also a threat to the welfare of seagrass
communities. Nutrient over-enrichment caused by inorganic and organic
nitrogen and phosphorous loading via urban and agricultural land run-
off can stimulate increased algal growth that may smother the
understory of H. johnsonii, shade rooted vegetation, and diminish the
oxygen content of the water. Such low oxygen conditions have a
demonstrated severe negative impact on seagrasses and associated
communities. Continued and increased degradation of environmental
quality also will have a detrimental effect upon H. johnsonii
communities.
2. Overutilization for Commercial, Recreational, Scientific or
Educational Purposes.
Overutilization for these purposes has not been a documented factor
in the decline of this species.
3. Disease or Predation
There are two known herbivores that occur in the range of H.
johnsonii--the green sea turtle (Chelonia mydas), and the West Indian
manatee (Trichechus manatus), both of which feed upon the seagrass.
Herbivorous fish also feed upon the seagrass community. Predation
pressures alone are not likely to be a threat to the species existence.
4. The Inadequacy of Existing Regulatory Mechanisms.
Despite existing Federal and Florida state laws to conserve and
protect seagrass habitat, there is a continued and well-documented loss
of seagrass habitat in the United States and elsewhere. For example,
seagrasses have declined in many areas of the Indian River Lagoon
(Virnstein and Morris, 1996). The Florida Department of Natural
Resources and the Florida Department of Environmental Regulation have
recently merged, greatly increasing the assignment of enforcement
responsibilities without an associated increase in staff for the Marine
Patrol. Although stormwater management systems are installed or being
installed, the Florida Indian River Lagoon Act of 1990 does not cover
other large inputs that will affect water quality, which in turn could
affect seagrasses (e.g. industrial discharges, brine disposal, canals,
processing plants).
Previous transplantation efforts to mitigate for the loss of
seagrass beds have failed. Until recently, Halophila species have not
been transplanted successfully in the field and studies underway are
incomplete (Kenworthy-personal communication). Many seagrass ecosystems
are known to recover very slowly even under the most natural, pristine
conditions. Current efforts are insufficient to protect critical
seagrasses. This was also the conclusion and recommendation of
scientists attending the International Seagrass Workshop in Kominato,
Japan in August 1993.
5. Other Natural or Human-made Factors Affecting Its Continued
Existence.
The existence of the species in a very limited range increases the
potential for extinction from stochastic events. Natural disasters such
as hurricanes could easily diminish entire populations and a
significant percentage of the species. Seagrass beds that are in
proximity to inlets are especially vulnerable to storm surge from
hurricanes and severe storm events.
Efforts Being Made To Protect Johnson's Seagrass
Section 4(b)(1) of the ESA requires the Secretary of Commerce
(Secretary) to make listing determinations solely on the basis of the
best scientific and commercial data available and after taking into
account state efforts being made to protect the species. Therefore, in
making its listing determinations, NMFS assesses the status of the
species, identifies factors that have led to the decline of the
species, and assesses available conservation measures to determine
whether such measures ameliorate risks to the species.
There is a continued and well-documented loss of seagrass habitat
notwithstanding existing Federal and state laws to conserve and protect
this habitat. Previous transplantation efforts to mitigate for the loss
of seagrass beds have failed. NMFS has determined that these existing
conservation efforts are not sufficient to prevent a listing
determination. NMFS will, however, consider state conservation efforts
when developing protective regulations under section 4(d) of the ESA.
State conservation efforts may also serve as a basis for a cooperative
agreement under section 6 of the ESA.
Listing Determination
Based on available information, NMFS concludes that Johnson's
seagrass warrants listing as a threatened species. This species is
rare, has a limited reproductive capacity, and is vulnerable to a
number of anthropogenic or natural disturbances. Also, it exhibits one
of the most limited distributions of any seagrass. Within its limited
range (lagoons on the east coast of Florida from Sebastian Inlet to
central Biscayne Bay), it is one of the least abundant species. Because
of its limited reproductive capacity and limited energy storage
capacity, it is less likely to survive environmental perturbations and
to be able to repopulate an area when lost. Finally, habitat loss has
continued despite existing Federal and state conservation efforts.
Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the ESA include recognition, recovery action,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing encourages and results in
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The ESA provides for cooperation with
states and requires that recovery actions be carried out for all listed
species. The protection required of Federal agencies and the
prohibitions against certain activities involving listed plants are
discussed, in part, here.
Section 9 of the ESA prohibits certain activities that directly or
indirectly affect endangered species. These prohibitions apply to all
individuals, organizations, and agencies subject to U.S. jurisdiction.
Section 9 prohibitions apply automatically to endangered species; as
described below, this is not the case for threatened species.
Section 4(d) of the ESA directs the Secretary to implement
regulations ``to provide for the conservation of [threatened] species''
that may include extending any or all of the prohibitions of section 9
to threatened species. Section 9(a)(2)(E) also prohibits violations of
protective regulations for threatened species of plants implemented
under section 4(d). While NMFS proposed extending the section 9
prohibitions to Johnson's seagrass, it is not including that proposal
in this final rule. Rather, NMFS will issue protective regulations
pursuant to section 4(d) for Johnson's seagrass in a separate proposed
rulemaking.
Section 7 (a)(4) of the ESA requires Federal agencies to consult
with NMFS on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. For listed species,
section 7 (a)(2) requires Federal agencies to ensure that activities
they
[[Page 49041]]
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
formal consultation with NMFS.
Federal agency actions or programs that may affect populations of
Johnson's seagrass and its habitat include U.S. Army Corps of Engineers
authorization of projects affecting waters of the U.S. under section
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act
(i.e., beach nourishment, dredging, and related activities including
the construction of docks and marinas); Environmental Protection Agency
authorization of pollutant discharges and management of freshwater
discharges into waterways; U.S. Coast Guard regulation of vessel
traffic; management of national refuges and protected species by the
FWS; management of vessel traffic and other activities by the U.S.
Navy; authorization of state coastal zone management plans by NOAA's
National Ocean Service, and management of commercial fishing and
protected species by NMFS.
Listing H. johnsonii as threatened provides for the development of
a recovery plan for the taxon. The recovery plan would establish a
framework for State and Federal agencies to coordinate activities and
to cooperate with each other in conservation efforts. The plan would
set recovery priorities and describe site-specific management actions
necessary to achieve the conservation of Johnson's seagrass.
Critical Habitat
Section 4(b)(6)(C) of the ESA requires that, to the extent prudent,
critical habitat be designated concurrently with the listing of a
species unless such critical habitat is not determinable at that time.
As stated previously, NMFS proposed a designation of critical habitat
on August 4, 1994 (59 FR 39716). Given the passage of time since that
proposal, NMFS will address the designation of critical habitat in a
separate Federal Register notice and additional comments will be
solicited at that time.
References
A complete list of all references cited herein is available upon
request (see ADDRESSES).
Classification
The 1982 Amendments to the ESA, in section 4(b)(1)(A), restrict the
information that must be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir.
1981), NMFS has categorically excluded all ESA listing actions from
environmental assessment requirements of the National Environmental
Policy Act (NEPA) under NOAA Administrative Order 216-6.
As noted in the Conference report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
the species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act (RFA) are not applicable to the listing
process. In addition, this final rule is exempt from review under E.O.
12866.
At this time NMFS is not issuing protective regulations under
section 4(d) of the ESA. In the future, prior to finalizing its 4(d)
regulations for this species, NMFS will comply with all relevant NEPA
and RFA requirements.
This final rule does not contain a collection-of-information
requirement subject to the Paperwork Reduction Act.
List of Subjects in 50 CFR Part 227
Endangered and threatened species, Exports, Imports, Marine
Mammals, Transportation.
Dated: August 27, 1998.
Hilda Diaz-Soltero,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set forth in the preamble, 50 CFR part 227 is
amended as follows:
PART 227---THREATENED SPECIES
1. The authority citation for part 227 reads as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, 227.12 also issued
under 16 U.S.C., 1361 et seq.
2. The heading for part 227 is revised to read as set forth above.
3. Section 227.4 is amended by adding paragraph (p) to read as
follows:
Sec. 227.4 Enumeration of threatened species.
* * * * *
(p) Johnson's seagrass (Halophila johnsonii)
[FR Doc. 98-24357 Filed 9-11-98; 8:45 am]
BILLING CODE 3510-22-F
