[Federal Register Volume 88, Number 152 (Wednesday, August 9, 2023)]
[Rules and Regulations]
[Pages 54026-54083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16556]
[[Page 54025]]
Vol. 88
Wednesday,
No. 152
August 9, 2023
Part III
National Oceanic and Atmospheric Administration
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50 CFR Parts 223 and 226
Endangered and Threatened Species; Critical Habitat for the Threatened
Caribbean Corals; Final Rule
Federal Register / Vol. 88, No. 152 / Wednesday, August 9, 2023 /
Rules and Regulations
[[Page 54026]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 226
[Docket No. 230726-0177]
RIN 0648-BG26
Endangered and Threatened Species; Critical Habitat for the
Threatened Caribbean Corals
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, designate critical habitat for five threatened
Caribbean coral species, Orbicella annularis, O. faveolata, O. franksi,
Dendrogyra cylindrus, and Mycetophyllia ferox, pursuant to section 4 of
the Endangered Species Act (ESA). Twenty-eight mostly overlapping
specific occupied areas containing physical features essential to the
conservation of these coral species are designated as critical habitat.
These areas contain approximately 16,830 square kilometers (km\2\;
6,500 square miles (mi\2\)) of marine habitat. We have considered
economic, national security, and other relevant impacts of designating
these areas as critical habitat, and we exclude one area from the
designations due to anticipated impacts on national security.
DATES: This rule becomes effective September 8, 2023.
ADDRESSES: The final rule, maps, and Final Information Report can be
found on the NMFS website at https://www.fisheries.noaa.gov/action/final-rule-designate-critical-habitat-threatened-caribbean-corals.
FOR FURTHER INFORMATION CONTACT: Jennifer Moore, NMFS, SERO, 727-824-
5312, [email protected]; Celeste Stout, NMFS, Office of Protected
Resources, 301-427-8436, [email protected].
SUPPLEMENTARY INFORMATION: In accordance with section 4(b)(2) of the
ESA and our implementing regulations (50 CFR 424.12), this final rule
is based on the best scientific data available concerning the range,
biology, habitat, threats to the habitat, and conservation objectives
for the threatened Caribbean boulder star coral (Orbicella franksi),
lobed star coral (O. annularis), mountainous star coral (O. faveolata),
pillar coral (Dendrogyra cylindrus), and rough cactus coral
(Mycetophyllia ferox). We have reviewed the available data and public
comments received on the proposed rule. We used the best data available
to identify: (1) a composite physical feature essential to the
conservation of each coral species; (2) the specific areas within the
occupied geographical areas that contain the physical essential feature
that may require special management considerations or protection; (3)
the Federal activities that may impact the critical habitat; and (4)
the potential impacts of designating critical habitat for the corals.
This final rule is based on the biological information and the
economic, national security, and other relevant impacts described in
the document titled, Final Information Basis and Impact Considerations
of Critical Habitat Designations for Threatened Caribbean Corals (Final
Information Report). This supporting document is available at https://www.regulations.gov or upon request (see ADDRESSES).
Background
We listed 20 coral species as threatened under the ESA effective
October 10, 2014 (79 FR 53851, September 10, 2014). Five of the corals
occur in the Caribbean: Orbicella annularis, O. faveolata, O. franksi,
Dendrogyra cylindrus, and Mycetophyllia ferox. The final listing
determinations were based on the best scientific and commercial data
available on a suite of demographic, spatial, and susceptibility
factors that influence the species' vulnerability to extinction in the
face of continuing threats over the foreseeable future. All of the
species had undergone population declines and are susceptible to
multiple threats, including ocean warming, diseases, ocean
acidification, ecological effects of fishing, and land-based sources of
pollution. However, aspects of the species' demography and distribution
buffered the effects of the threats. We determined that all the
Caribbean coral species were likely to become endangered throughout all
of their ranges within a foreseeable future of the next several decades
as a result of a combination of threats, of which the most severe are
related to climate change, and we listed them as threatened.
On November 27, 2020, NMFS proposed to designate critical habitat
for the five listed Caribbean coral species within U.S. waters, and
opened a 60-day public comment period (85 FR 76302). The proposed coral
critical habitat consisted of a substrate and water column feature
essential for the reproduction, recruitment, growth, and maturation of
the listed corals. A total of 28 mostly-overlapping areas within the
species' ranges in Florida, Puerto Rico, the U.S. Virgin Islands
(USVI), Navassa Island, and the Flower Gardens Banks were identified to
contain the essential feature. The area covered by the Naval Air
Station Key West (NASKW) Integrated Natural Resource Management Plan
(INRMP) was ineligible for designation pursuant to section
4(a)(3)(B)(i) of the ESA due to the conservation benefits it affords
the threatened corals. Pursuant to section 4(b)(2) of the ESA, only one
area was proposed for exclusion from the designation on the basis of
national security impacts, and no areas were proposed for exclusion on
the basis of economic or other relevant impacts.
The proposed designation was developed in accordance with the ESA
section 4 implementing regulations applicable at that time (in 50 CFR
424), which included changes made in 2019 to the definition of physical
or biological feature and the designation of unoccupied critical
habitat (84 FR 45020, August 27, 2019). On July 5, 2022, the U.S.
District Court for the Northern District of California issued an order
vacating the ESA section 4 implementing regulations that were revised
or added to 50 CFR part 424 in 2019 (``2019 regulations''; 84 FR 45020,
August 27, 2019) without making a finding on the merits. On September
21, 2022, the U.S. Court of Appeals for the Ninth Circuit granted a
temporary stay of the district court's July 5 order. On November 14,
2022, the Northern District of California issued an order granting the
government's request for voluntary remand without vacating the 2019
regulations. The District Court issued a slightly amended order 2 days
later on November 16, 2022. As a result, the 2019 regulations remain in
effect, and we are applying the 2019 regulations here. For purposes of
this designation and in an abundance of caution, we considered whether
the analysis or conclusions would be any different under the pre-2019
regulations. We have determined that our analysis and conclusions
related to the physical or biological features essential to
conservation of the species would not be any different under the 2019
or pre-2019 regulations. Our analysis of unoccupied critical habitat
would be different under the pre-2019 regulations but, as explained
below, this does not change our prior conclusion that it is not
appropriate to designate any unoccupied critical habitat.
Statutory and Regulatory Background for Critical Habitat Designations
The ESA defines critical habitat under section 3(5)(A) as the (1)
specific areas
[[Page 54027]]
within the geographical area occupied by the species at the time it is
listed, on which are found those physical or biological features
essential to the conservation of the species (hereafter also referred
to as ``PBFs'' or ``essential features'') and which may require special
management considerations or protection; and (2) specific areas outside
the geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary of Commerce (Secretary) that such
areas are essential for the conservation of the species (16 U.S.C.
1532(5)(A)). Conservation is defined in section 3(3) of the ESA as to
use, and the use of, all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to this Act are no longer
necessary (16 U.S.C. 1532(3)). Section 3(5)(C) of the ESA provides
that, except in those circumstances determined by the Secretary,
critical habitat shall not include the entire geographical area which
can be occupied by the threatened or endangered species. Our
regulations provide that critical habitat shall not be designated
within foreign countries or in other areas outside U.S. jurisdiction
(50 CFR 424.12(g)).
Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense (DOD) or designated for its use, that are
subject to an INRMP prepared under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines in writing that such plan
provides a benefit to the species for which critical habitat is
designated. Section 4(b)(2) of the ESA requires us to designate
critical habitat for threatened and endangered species on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical habitat.
Pursuant to this section, the Secretary may exclude any area from
critical habitat upon determining that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat. However, the Secretary may not exclude areas if this will
result in the extinction of the species.
Once critical habitat is designated, section 7(a)(2) of the ESA
requires Federal agencies to ensure that actions they fund, authorize,
or carry out are not likely to destroy or adversely modify that habitat
(16 U.S.C. 1536(a)(2)). This requirement is in addition to the section
7(a)(2) requirement that Federal agencies ensure their actions are not
likely to jeopardize the continued existence of ESA-listed species.
Specifying the geographic location of critical habitat also facilitates
implementation of section 7(a)(1) of the ESA by identifying areas where
Federal agencies can focus their conservation programs and use their
authorities to further the purposes of the ESA. Critical habitat
requirements do not apply to citizens engaged in actions on private
land that do not involve a Federal agency. However, designating
critical habitat can help focus the efforts of other conservation
partners (e.g., state and local governments, individuals, and non-
governmental organizations).
Summary of Changes From the Proposed Rule
We evaluated the comments and information received from the public
during the public comment period. Based on our consideration of these
comments and information (as noted below in the Summary of Comments and
Responses section), we made four substantive changes to the boundaries
of critical habitat: (1) the reduction of the maximum depth of the
Florida units from 90 m (295 ft) to 40 m (131 ft); (2) the addition of
an area north of the Florida Keys within the Florida Keys National
Marine Sanctuary (FKNMS) for the three Orbicella species; (3) the
addition of Bright, McGrail, and Geyer Banks within the Flower Garden
Banks National Marine Sanctuary (FGBNMS) for the three Orbicella
species; and (4) the reduction of the shallow depth limit from 17 m (56
ft) to 16 m (53 ft) in the FGBNMS units. Together, these changes
resulted in adding 1,622 sq km (626 sq mi) to the total area of
designated critical habitat in FKNMS and 48 sq km (19 sq mi) to the
total area of designated critical habitat in FGBNMS.
Reduction of the Maximum Depth of the Florida Units
In the proposed rule, we assumed O. faveolata, O. franksi, and M.
ferox were present to 90 m (295 ft) in Florida, based on information on
the depth limits of the species in other areas in the Caribbean. We
received a public comment that the maximum depth limit of these species
in Florida was 40 m (131 ft) based on personal observations.
Furthermore, a new report on coral species distribution on the
mesophotic reefs of Florida confirms that the deepest distribution of
O. faveolata, O. franksi, and M. ferox is limited to 40 m (131 ft),
with a few extremely rare occurrences slightly deeper (1 colony at 43 m
(141 ft)) and the majority of the observations less than 37 m (121 ft)
(Reed 2021). Based on this information, we changed the portions of the
boundaries of the three Florida critical habitat units that were
formerly based on the 90-m depth contour to the 40-m contour for O.
faveolata, O. franksi, and M. ferox.
Addition of the Area North of the Florida Keys
We received a public comment that the three Orbicella species occur
in the areas north of the Florida Keys in the FKNMS. Following receipt
of this comment, we conducted a further inspection of the data we have
collected on the locations of all ESA-listed corals. We also received
additional location data specifically on the occurrence of these three
species in the area north of the Florida Keys from the FKNMS. Based on
this information, we are including this area in the Florida critical
habitat units for O. annularis, O. faveolata, and O franksi.
Addition of Bright, McGrail, and Geyer Banks Within the FGBNMS
We received a public comment that the three Orbicella species occur
at three additional banks within the FGBNMS. The FGBNMS provided data
to support the presence of these species within Bright, McGrail, and
Geyer Banks, which were recently added to the FGBNMS. Based on this
information, we are adding these three banks to the FGBNMS critical
habitat units for O. annularis, O. faveolata, and O franksi.
Changing the Shallow Depth Limit in the FGBNMS Units
We also received a public comment that the shallow depth limit of
the three Orbicella species is 16 m (53 ft), not 17 m (56 ft) as we had
proposed. Based on the information provided by the FGBNMS, we are
changing the shallow depth limit to 16 m in the Flower Garden Banks
(FGB) critical habitat units for O. annularis, O. faveolata, and O
franksi.
Other Changes
In addition to these four substantive changes in the final rule, we
also made some minor, clarifying changes to the final rule, and to the
Final Information Report and its appendices, in response to public
comments and new information. Specifically, we made two minor edits to
the regulatory language for clarity. The first edit revises the first
two sentences of the description of the essential feature to more
clearly articulate that this feature is comprised of the sites that
support the normal function of all life stages. The second
[[Page 54028]]
minor edit is to change ``does not'' to ``cannot'' in paragraph (d)(2).
This second minor edit is intended to clarify, and thus improve the
understanding of, this sentence. All sections of the Final Information
Report were updated with information based on the additional reports
and studies. The final economic impact analysis took into account the
latest economic data and ESA section 7 consultation history, and the
Final Regulatory Flexibility Analysis took into account the latest
economic information and data. Note, however, that, as in the proposed
rule, this final rule does not include any economic exclusions.
Summary of Comments and Responses
We solicited comments on the proposed rule and its supporting
documents in a 60-day public comment period (85 FR 76302; November 27,
2020). To facilitate public participation, the proposed rule was made
available on our website and comments were accepted via both standard
mail and through the Federal eRulemaking portal, www.regulations.gov.
We received 552 comments through www.regulations.gov, which
included a combination of comments in support of the action, comments
providing additional information, and comments requesting changes to
the rule. In addition, we received one comment submission containing a
list of 20,566 signatories to a campaign by the Center for Biological
Diversity in support of the proposed rule. Comments were received from
a range of sources including global and local environmental non-profit
groups, local, state, and federal government agencies, trade
associations, and concerned citizens. Of the 552 comments submitted,
most expressed general support for the proposed rule but did not
include substantive content. We considered all public comments and
below we provide responses to all substantive issues raised by
commenters that are relevant to the proposed coral critical habitat. We
do not respond to comments or concerns that we received outside the
scope of this rulemaking. As described above in the Summary of Changes
from the Proposed Rule section, we incorporated information provided by
commenters into the Final Information Report and this final rule.
Comments on the Essential Feature
Comment 1: One commenter requested that we add a quantitative
threshold to the temperature component of the water quality attribute
of the essential feature and suggested it could be reworded to ``Marine
water with temperatures (not to exceed 1.0 [deg]C of location-specific
total warming), aragonite saturation, nutrients, and water clarity that
have been observed to support any demographic function.'' The commenter
provided two references to support the 1 [deg]C threshold, Donner et
al., 2005 and Donner et al., 2009.
Response: In the Draft Information Report and the proposed rule, we
described the conditions that may lead to thermal stress, citing
several studies that identify the various intensities and durations
that lead to stress and mortality. We reviewed the references provided
by the commenter, and they have been added to the Final Information
Report and this final rule. The majority of this information further
supported the information already included in the proposed rule and
Draft Information Report. However, we also explained that temperature
thresholds are variable in both time (e.g., season) and geographic
location (i.e., latitude and longitude) and may be nonlinear.
Therefore, we determined that it is not appropriate to identify a
standard threshold that applies to all locations and temporal scales as
described in the Physical or Biological Feature Essential to
Conservation section below.
Comment 2: One commenter stated that the designation ``. . . does
not take into consideration the protection for any habitats critical to
those species that are involved in crucial interactions with the coral
species.''
Response: We understand this comment to mean that we did not
consider habitats that support other species, such as parrotfish, that
provide specific beneficial functions for healthy coral reefs. The ESA
requires us to designate critical habitat for listed species, not
associated species such as parrotfish. The proposed rule contemplated
the physical and biological features essential to the conservation of
the threatened corals and identified one composite feature that
supports successful reproduction, recruitment, survival, and growth of
all life stages of the five coral species. We did not identify any
other features that are essential to the conservation of these species.
Coral reef ecosystems are a complex mosaic of habitat and species
interactions. The composite essential feature does include many of
those interactions within the attributes that determine the quality of
the area that contains the essential feature and influences the value
of the associated feature. For example, one attribute of the substrate
component of the essential feature is low occupancy by fleshy and turf
macroalgae, which is mediated by herbivores. Therefore, species
interactions that influence the essential feature have already been
contemplated in the critical habitat designations.
Comments on the Boundaries of Critical Habitat Areas
Comment 3: One commenter requested that we add the area on the
north side of the Florida Keys (also known as ``the backcountry'')
within the FKNMS to the critical habitat designations for the three
Orbicella species due to their presence in that area. The commenter
also requested we look at monitoring data to determine the presence of
Mycetophyllia ferox in the same area and include that species within
the designation if the species is present.
Response: Based on the information provided by the commenter and
our review of various monitoring reports, we agree that the area north
of the Florida Keys within the boundaries of the FKNMS are occupied by
the 3 Orbicella spp. and these areas are now included in the final
designation. We did not find any evidence of Mycetophyllia ferox being
present within the area; therefore, we are not including the area
within the designation for that species.
Comment 4: One commenter requested that we add several areas in the
FGBNMS. They requested that we add the occupied areas within McGrail,
Bright, and Geyer Banks. They also requested that we add the unoccupied
areas of Stetson and Sonnier Banks. Last, they requested that the
shallow depth limit be 16 m (53 ft), rather thant 17 m (56 ft) as
identified in the proposed rule.
Response: As discussed above in the Summary of Changes from the
Proposed Rule section, we have included the occupied areas within
McGrail, Bright, and Geyer Banks in the final designation. However, as
described in the Unoccupied Critical Habitat Areas section below,
neither the proposed rule nor this final rule include any unoccupied
areas within the final designation; therefore, we are not including
Stetson and Sonnier Banks. In addition, we have changed the shallow
depth limit to 16 m for all occupied areas within the final
designation, based on the information that the FGBNMS provided on the
depth distribution of these species on these banks.
Comment 5: One commenter requested that we not include the Dry
Tortugas National Park within the critical habitat designation citing
the remoteness of the area and existing protections afforded by being a
national park.
Response: The ESA defines critical habitat as: (i) the specific
areas within
[[Page 54029]]
the geographical area occupied by the species, at the time it is listed
in accordance with the provisions of section 4 of the ESA, 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 protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of the ESA, upon
a determination by the Secretary that such areas are essential for the
conservation. If an area is occupied by the species, contains the
essential feature, and may require special management, it meets the
definition of critical habitat unless there is a specific basis to
exclude the area (i.e., national security or economic, with the
benefits of exclusion outweigh the benefits of designating the area).
The areas within the boundaries of the Dry Tortugas National Park meet
the ESA definition of critical habitat. Furthermore, we did not
identify any basis for exclusion (national security, economic, or other
relevant) of this area. Although the area in the Dry Tortugas National
Park is remote and has existing protections, the area is essential to
the conservation of the threatened corals, and it is included in the
final designation.
Comment 6: One commenter requested that we extend the offshore
depth boundary for Orbicella annularis in the U.S. Virgin Islands to 80
m (263 ft).
Response: The commenter did not provide any evidence of the
presence of O. annularis deeper than 20 m in the U.S. Virgin Islands.
We do not have any record of the species occurring deeper than 20 m.
Therefore, we did not change the boundary for O. annularis in the U.S.
Virgin Islands.
Comments on the Threats to Critical Habitat
Comment 7: One commenter stated that the current levels of
dissolved inorganic nitrogen concentrations in Florida are detrimental
to corals.
Response: In the proposed rule and Draft Information Report, we
identify that excess nutrients, which include inorganic nitrogen, are a
threat to corals and their habitat. Excess nutrients are included in
the critical habitat designation as part of the attribute, ``nutrient
levels that have been observed to support any demographic function'' of
the essential feature.
Comment 8: One commenter requested that we include the impact on
oil and gas exploration and development in areas that may be affected
by oil- and gas-related activity in our analysis of the impact of
critical habitat, specifically in the Gulf of Mexico, given the
location of the Flower Gardens Banks.
Response: We have included an analysis of potential future
consultations on oil and gas exploration in the Final Information
Report. We concur that oil and gas exploration and development may
affect the essential feature and would be subject to ESA section 7
consultation. Any future Federal activities that may affect the
essential feature within the designated critical habitat would require
consultation.
Comment 9: One commenter expressed concern that the decision not to
include ``managed areas,'' such as dredged channels and harbors, in the
designation of critical habitat could be detrimental to the survival of
corals in the surrounding areas.
Response: We agree that sedimentation caused by channel dredging is
a threat to the five coral species and their habitat. All Federal
actions involving potential effects of sedimentation on the threatened
corals or their designated critical habitat will be subject to ESA
section 7 consultation. However, those areas that are consistently
disturbed and that will continue to be disturbed as part of planned
management activities by local, state, or Federal government entities
(as of the time this rule becomes effective) do not support the
essential feature, and, therefore, designation of those areas would not
provide for the conservation of the species.
Comment 10: One commenter discussed our identification of sunscreen
ingredients as a threat to corals. They stated that the European
Chemicals Agency and the U.S. Environmental Protection Agency (EPA)
have data reliability assessment guidelines to determine whether a
peer-reviewed study can be used for an environmental risk assessment
(ERA). They also stated that Benzophenone-2 is not an approved
ultraviolet (UV) filter in the United States and should not be
referenced in the rule.
Response: In the Final Information Report and this final rule (as
in the proposed rule), we include the best available information on the
threats to corals and their habitat, which includes literature on the
impacts of chemicals included in sunscreens and personal care products
on corals. Our standard is to use the best available information in
designating critical habitat. Thus, we included the best available
information on the contaminants that have been found to cause adverse
effects in corals, including Benzophenone-2. Furthermore, the reference
to the EPA data reliability assessment guidelines for ERAs is not
relevant to a critical habitat designation under the ESA. ERAs are a
separate Federal process for a separate purpose.
Natural History
This section summarizes life history and biological characteristics
of the five corals to provide context for the identification of the
physical and biological features essential for the conservation of
these species. In this section, we cover several topic areas, including
an introduction to reef-building corals, reproduction, settlement and
growth, coral habitat types, and coral reef ecosystems. The amount of
information available on life history, reproductive biology, and
ecology varies for each of the five corals that occur in U.S. waters of
the Caribbean. We provide specific information for each species where
possible. In addition, we provide information on the biology and
ecology of Caribbean corals in general, highlighting traits that these
five corals share. The information below is largely summarized from the
final listing rule (79 FR 53852, September 10, 2014), and updated with
the best scientific information available to date.
Reef-building corals, in the phylum Cnidaria, are marine
invertebrates that occur as polyps. The Cnidaria include true stony
corals (class Anthozoa, order Scleractinia), the blue coral (class
Anthozoa, order Helioporacea), and fire corals (class Hydrozoa, order
Milleporina). These species secrete massive calcium carbonate skeletons
that form the physical structure of coral reefs. Reef-building coral
species collectively produce coral reefs over time when growth outpaces
erosion. Corals may also occur on hard substrate that is interspersed
among other benthic features (e.g., seagrass beds in the back reef
lagoon) in the coral reef ecosystem, but not on the physical structure
of coral reefs. Corals also contain symbiotic algae within their cells.
As described below, corals produce clones of themselves by several
different means, and most corals occur as colonies of polyps.
Reef-building corals are able to grow and thrive in the
characteristically nutrient-poor environments of tropical and
subtropical regions due to their ability to form mutually beneficial
symbioses with unicellular photosynthetic algae (zooxanthellae)
belonging to the dinoflagellate genus Symbiodinium living within the
host coral's tissues. Zooxanthellae provide a
[[Page 54030]]
food source for their host by translocating fixed organic carbon and
other nutrients. In return, the algae receive shelter and nutrients in
the form of inorganic waste metabolites from host respiration. This
exchange of energy, nutrients, and inorganic metabolites allows the
symbiosis to flourish and helps the coral secrete the calcium carbonate
that forms the skeletal structure of the coral colony, which in turn
contributes to the formation of the reef. Thus, reef-building corals
are also known as zooxanthellate corals. Some corals, which do not
contain zooxanthellae, form skeletons much more slowly, and therefore
are not considered reef-building. The five corals discussed in this
rule are zooxanthellate species, and thus are reef-building species
that can grow large skeletons that contribute to the physical structure
of coral reefs.
Only about 10 percent of the world's approximately 800 reef-
building coral species occur in the Caribbean. The acroporids were once
the most abundant and most important species on Caribbean coral reefs
in terms of accretion of reef structure, characterizing the ``palmata''
and ``cervicornis'' zones in the classical descriptions of Caribbean
reefs (Goreau, 1959). The three species (O. annularis, O. faveolata,
and O. franski) in the Orbicella star coral species complex have also
been dominant components on Caribbean coral reefs, characterizing the
``buttress zone'' and ``annularis zone.'' After the die-off of Acropora
spp., the star coral species complex became the major reef-builder in
the greater Caribbean due to their large size.
Most reef-building coral species are colonial, producing colonies
made up of polyps that are connected through tissue and skeleton. In a
colonial species, a single larva will develop into a discrete unit (the
primary polyp) that then produces modular units of itself (i.e.,
genetically-identical copies, or clones, of the primary polyp). Each
polyp consists of a column with mouth and tentacles on the upper side
growing on top of a calcium carbonate skeleton that the polyps produced
through the process of calcification. Colony growth is achieved mainly
through the addition of more cloned polyps. The colony can continue to
exist even if numerous polyps die or if the colony is broken apart or
otherwise damaged. The five corals are all colonial species, although
polyp size, colony size, and colony morphology vary considerably by
species, and can also vary based on environmental variables in
different habitats. Colonies can produce clones, most commonly through
fragmentation or budding (described in more detail below). The five
corals are all clonal species with the ability to produce colonies of
cloned polyps as well as clones of entire colonies. The way they
produce colony-level clones varies by species. For example, branching
species are much more likely than encrusting species to produce clones
via fragmentation.
Corals use a number of reproductive strategies that have been
researched extensively; however, many individual species' reproductive
modes remain poorly described. Most coral species use both sexual and
asexual propagation. Sexual reproduction in corals is primarily through
gametogenesis (i.e., the development of eggs and sperm within the
polyps near the base). Some coral species have separate sexes
(gonochoric), while others are hermaphroditic (individuals
simultaneously containing both sexes), and others are a combination of
both (Richmond, 1997). Strategies for fertilization are either by
brooding (internal fertilization) or broadcast spawning (external
fertilization). Asexual reproduction in coral species usually occurs by
fragmentation, when colony pieces or fragments are dislodged from
larger colonies to establish new colonies, or by the budding of new
polyps within a colony.
Depending on the mode of fertilization, coral larvae (called
planulae) undergo development either mostly within the mother colony
(brooders) or outside of the mother colony, adrift in the ocean
(broadcast spawners). In either mode of larval development, larvae
presumably experience considerable mortality (up to 90 percent or more)
from predation or other factors prior to settlement and metamorphosis
(Goreau et al., 1981). Such mortality cannot be directly observed, but
is inferred from the large number of eggs and sperm spawned versus the
much smaller number of recruits observed later. Coral larvae are
relatively poor swimmers; therefore, their dispersal distances largely
depend on the duration of the pelagic phase and the speed and direction
of water currents transporting the larvae.
All three species of the Orbicella star coral species complex are
hermaphroditic broadcast spawners, spawning over a 3-night period, 6 to
8 nights following the full moon in late August, September, or early
October (Levitan et al., 2004). Fertilization success measured in the
field was generally below 15 percent for all three species and
correlated to the number of colonies concurrently spawning (Levitan et
al., 2004). The minimum colony size at first reproduction for the
Orbicella species complex is 83 cm\2\ (Szmant-Froelich, 1985).
Successful recruitment by the Orbicella species has seemingly always
been rare with many studies throughout the Caribbean reporting
negligible to no recruitment (Bak and Engel, 1979; Hughes and Tanner,
2000; Rogers et al., 1984; Smith and Aronson, 2006).
Dendrogyra cylindrus is a gonochoric (having separate sexes)
broadcast spawning species with relatively low annual egg production
for its size. The combination of gonochoric spawning with persistently
low population densities is expected to yield low rates of successful
fertilization and low larval supply. Spawning has been observed several
nights after the full moon of August in the Florida Keys (Neely et al.,
2013; Waddell and Clarke, 2008). In Cura[ccedil]ao, D. cylindrus was
observed to spawn over a 3-night period, 2-5 nights after the full
moons in August and September (Marhaver et al., 2015). Lab-reared
embryos developed into swimming planulae larvae within 16 hours after
spawning and were competent to settle relatively soon afterward
(Marhaver et al., 2015). Despite the short duration from spawn to
settlement competency in the lab, sexual recruitment of this species is
low, and there are no reported juvenile colonies in the Caribbean (Bak
and Engel, 1979; Chiappone, 2010; Rogers et al., 1984). Dendrogyra
cylindrus can propagate by fragmentation following storms or other
physical disturbance (Hudson and Goodwin, 1997). Recent investigations
determined that there is no genetic differentiation along the Florida
Reef Tract, meaning that all colonies belong to a single mixed
population (Baums et al., 2016). The same study found that all sampled
colonies from Cura[ccedil]ao belonged to a single population that was
distinct from the Florida population. Similar studies have not been
conducted elsewhere in the species' range.
Mycetophyllia ferox is a hermaphroditic brooding species producing
larvae during the winter months (Szmant, 1986). Brooded larvae are
typically larger than broadcast spawned larvae and are expected to have
higher rates of survival once settled. However, recruitment of M. ferox
appears to be very low, even in studies from the 1970s (Dustan, 1977;
Rogers and Garrison, 2001).
Spatial and temporal patterns of coral recruitment are affected by
substrate availability and community structure, grazing pressure,
fecundity, mode and timing of reproduction, behavior of larvae,
hurricane disturbance, physical
[[Page 54031]]
oceanography, the structure of established coral assemblages, and
chemical cues. Additionally, several other factors may influence
reproductive success and reproductive isolation, including external
cues, genetic precision, and conspecific signaling.
Like most corals, the threatened Caribbean corals require hard,
consolidated substrate, including attached, dead coral skeleton, for
their larvae to settle. The settlement location on the substrate must
be free of macroalgae, turf algae, or sediment for larvae to attach and
begin growing a colony. Further, the substrate must provide a habitat
where burial by sediment or overgrowth by competing organisms (i.e.,
algae) will not occur. In general, on proper stimulation, coral larvae
settle and metamorphose on appropriate hard substrates. Some evidence
indicates that chemical cues from crustose coralline algae (CCA),
microbial films, and other reef organisms or acoustic cues from reef
environments stimulate planulae's settlement behaviors. Calcification
of the newly-settled larva begins with the forming of the basal plate.
Buds formed on the initial corallite develop into daughter corallites.
Once larvae have metamorphosed onto appropriate hard substrate,
metabolic energy is diverted to colony growth and maintenance. Because
newly settled corals barely protrude above the substrate, juveniles
need to reach a certain size to limit damage or mortality from threats
such as grazing, sediment burial, and algal overgrowth. In some
species, it appears there is virtually no limit to colony size beyond
the structural integrity of the colony skeleton, as polyps apparently
can bud indefinitely.
Polyps are the building blocks of colonies, and colony growth
occurs both by increasing the number of polyps, as well as extending
the supporting skeleton under each polyp. Reef-building corals combine
calcium and carbonate ions derived from seawater into crystals that
form their skeletons. Skeletal expansion rates vary greatly by taxa,
morphology, location, habitat and other factors. For example, in
general, branching species (e.g., most Acropora species) have much
higher skeletal extension rates than massive species (e.g., Orbicella
species). The energy required to produce new polyps and build calcium
carbonate skeleton is provided by the symbiotic relationship corals
have with photosynthetic zooxanthellae. Therefore, corals need light
for their zooxanthellae to photosynthesize and provide the coral with
food, and thus also require low turbidity for energy, growth, and
survival. Lower water clarity sharply reduces photosynthesis in
zooxanthellae and results in reductions in adult colony calcification
and survival (79 FR 53852, September 10, 2014). Some additional
information on the biological requirements for reproduction,
settlement, and growth is provided below in the Physical or Biological
Features Essential to Conservation section.
Coral reefs are fragile ecosystems that exist in a narrow band of
environmental conditions that allow the skeletons of reef-building
coral species to grow quickly enough for reef accretion to outpace reef
erosion. High-growth conditions for reef-building corals include clear,
warm waters with abundant light, and low levels of nutrients,
sediments, and freshwater.
There are several categories of coral reefs: fringing reefs,
barrier reefs, patch reefs, platform reefs, and atolls. Despite the
differences between the reef categories, most fringing reefs, barrier
reefs, atolls, and platform reefs consist of a reef slope, a reef
crest, and a back-reef, which in turn are typically characterized by
distinctive habitats. The characteristics of these habitat types vary
greatly by reef categories, locations, latitudes, frequency of
disturbance, etc., and there is also much habitat variability within
each habitat type. Temporal variability in coral habitat conditions is
also very high, both cyclically (e.g., from tidal, seasonal, annual,
and decadal cycles) and episodically (e.g., storms, temperature
anomalies, etc.). Together, all these factors contribute to the habitat
heterogeneity of coral reefs.
The five corals vary in their recorded depth ranges and habitat
types. Additionally, each species has different depth ranges depending
on the geographic location. All five corals generally have overlapping
ranges and occur throughout the wider-Caribbean. The major variance in
their distributions occurs at the northern-most extent of their ranges
in FGBNMS in the northwest Gulf of Mexico. As described below, critical
habitat can be designated only in areas under U.S. jurisdiction, thus
we provide the species' distribution in U.S. waters.
Critical Habitat Identification and Designations
The purpose of designating critical habitat is to identify the
areas that are essential to the species' recovery. Once critical
habitat is designated, it can contribute to the conservation of listed
species in several ways, including by identifying areas where Federal
agencies can focus their section 7(a)(1) conservation programs, and
helping focus the efforts of other conservation partners, such as
States and local governments, nongovernmental organizations, and
individuals (81 FR 7414, February 11, 2016). Designating critical
habitat also provides significant regulatory protection by ensuring
that Federal agencies consider the effects of their actions in
accordance with section 7(a)(2) of the ESA and avoid or modify those
actions that are likely to destroy or adversely modify critical
habitat. This requirement is in addition to the section 7 requirement
that Federal agencies ensure that their actions are not likely to
jeopardize the continued existence of ESA-listed species. Critical
habitat requirements do not apply to citizens engaged in activities
that do not involve a Federal agency. However, section 3(5)(C) of the
ESA clarifies that, except in those circumstances determined by the
Secretary, critical habitat shall not include the entire geographical
area which can be occupied by the threatened or endangered species.
Our step-wise approach for identifying potential critical habitat
areas for the threatened corals was to determine: (1) the geographical
area occupied by each coral at the time of listing; (2) the physical or
biological features essential to the conservation of the corals; (3)
whether those features may require special management considerations or
protection; (4) the specific areas of the occupied geographical area
where these features occur; and, (5) whether any unoccupied areas are
essential to the conservation of any of the corals.
Geographical Area Occupied by the Species
``Geographical area occupied'' in the definition of critical
habitat is defined as an area that may generally be delineated around
species' occurrences, as determined by the Secretary (i.e., range).
Such areas may include those areas used throughout all or part of the
species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals) (50 CFR 424.02). The ranges of
the five threatened corals span the wider-Caribbean, and specifically
include marine waters around Florida, Puerto Rico, USVI and Navassa in
the United States (79 FR 53851, September 10, 2014). We did not
consider geographical areas outside of the United States, because we
cannot designate critical habitat areas outside of U.S. jurisdiction
(50 CFR 424.12(g)).
[[Page 54032]]
Physical or Biological Features Essential to Conservation
Within the geographical area occupied, critical habitat consists of
specific areas on which are found those PBFs essential to the
conservation of the species and that may require special management
considerations or protection. PBFs essential to the conservation of the
species are defined as the features that support the life-history needs
of the species, including but not limited to, water characteristics,
soil type, geological features, sites, prey, vegetation, symbiotic
species, or other features. A feature may be a single habitat
characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity (50 CFR
424.02).
One of the first steps in recovery planning we completed after
listing these coral species was to develop a Recovery Outline that
contains a Recovery Vision, which describes what the state of full
recovery looks like for the species. We identified the following
Recovery Vision for the five corals listed in 2014: populations of the
five threatened Caribbean corals should be present across their
historical ranges, with populations large enough and genetically
diverse enough to support successful reproduction and recovery from
mortality events and dense enough to maintain ecosystem function
(https://www.fisheries.noaa.gov/resource/document/5-caribbean-coral-species-recovery-outline). Recovery of these species will require
conservation of the coral reef ecosystem through threats abatement to
ensure a high probability of survival into the future (NMFS, 2015). The
key conservation objective that facilitates this Recovery Vision, and
that can be assisted through these critical habitat designations, is
supporting successful reproduction and recruitment, and survival and
growth of all life stages, by abating threats to the corals' habitats.
In the final listing rule, we identified the major threats contributing
to the five corals' extinction risk: ocean warming, disease, ocean
acidification, trophic effects of reef fishing, nutrient enrichment,
and sedimentation. Five of the six major threats (i.e., all but
disease) impact corals in part by changing the corals' habitat, making
it unsuitable for them to carry out the essential functions at all life
stages. Although they were not considered to be posing a major threat
at the time of listing, we also identified contaminants as a potential
threat to each of these corals (79 FR 53852, September 10, 2014). Thus,
we identify ocean warming, ocean acidification, trophic effects of reef
fishing, nutrient enrichment, sedimentation, and contaminants as the
threats to the five corals' habitat that are impeding their recovery.
Protecting essential features of the corals' habitat from these threats
will facilitate the recovery of these threatened species.
There are many physical and biological features that are important
in supporting the corals' habitat; therefore, we focused on a composite
habitat feature that supports their conservation through its relevance
to the major threats and threats impeding recovery. The essential
feature we ultimately identified is sites with a complex combination of
substrate and water column characteristics that support normal
functions of all life stages of the corals. Because corals are sessile
for almost their entire life cycle, they carry out most of their
demographic functions in one location. Thus, we have identified sites
with a combination of certain substrate and water column
characteristics as the essential feature. Specifically, these sites
have attributes that determine the quality of the appropriate
attachment substrate, in association with warm, aragonite-
supersaturated, oligotrophic, clear marine water, which are essential
to reproduction and recruitment, survival, and growth of all life
stages of all five species of coral. These sites can be impacted by
ocean acidification and ocean warming, trophic effects of reef fishing,
nutrient enrichment, sedimentation, and contamination.
Based on the best scientific information available we identified
the following essential physical feature for the five corals:
Sites that support the normal function of all life stages of the
corals, including reproduction, recruitment, and maturation. These
sites are natural, consolidated hard substrate or dead coral skeleton
free of algae and sediment at the appropriate scale at the point of
larval settlement or fragment reattachment, and the associated water
column. Several attributes of these sites determine the quality of the
area and influence the value of the associated feature to the
conservation of the species:
(1) Substrate with presence of crevices and holes that provide
cryptic habitat, the presence of microbial biofilms, or presence of
crustose coralline algae;
(2) Reefscape (all the visible features of an area of reef) with no
more than a thin veneer of sediment and low occupancy by fleshy and
turf macroalgae;
(3) Marine water with levels of temperature, aragonite saturation,
nutrients, and water clarity that have been observed to support any
demographic function; and
(4) Marine water with levels of anthropogenically-introduced (from
humans) chemical contaminants that do not preclude or inhibit any
demographic function.
Some new information relevant to the essential feature has been
added to the Final Information Report and this final rule. The new
information did not result in any changes to the definition of the
essential feature from the proposed rule, although this final rule
includes minor clarifying edits in the definition, as described in the
Summary of Changes from Proposed Rule section.
As described in detail in the Final Information Report, all corals
require exposed natural consolidated hard substrate for the settlement
and recruitment of larvae or asexual fragments. Recruitment substrate
provides the physical surface and space necessary for settlement of
coral larvae, and a stable environment for metamorphosis of the larvae
into the primary polyp, growth of juvenile and adult colonies, and re-
attachment of fragments. The substrate must be available at appropriate
physical and temporal scales for attachment to occur. In other words,
the attachment location must be available at the physical scale of the
larva or fragment, and at the temporal scale of when the larva or
fragment is ``seeking'' recruitment. Larvae can also settle and attach
to consolidated dead coral skeleton (Grober-Dunsmore et al., 2006;
Jord[aacute]n-Dahlgren, 1992).
A number of features have been shown to influence coral larval
settlement. Positive cues include the presence of particular species of
crustose coralline algae (Morse and Morse, 1996; Ritson-Williams et
al., 2010), microbial biofilms (Sneed et al., 2014; Webster et al.,
2004), and cryptic habitat such as crevices and holes (Edmunds et al.,
2004; Edwards et al., 2014; Nozawa, 2012). Features that negatively
affect settlement include presence of sediment, turf algae, sediment
bound in turf algae, and macroalgae (Birrell et al., 2005; Kuffner et
al., 2006; Richmond et al., 2018; Speare et al., 2019; Vermeij et al.,
2009). While sediment, turf algae, and macroalgae are all natural
features of the coral reef ecosystem, it is the relative
[[Page 54033]]
proportion of free space versus occupied space that influences
recruitment; recruitment rate is positively correlated with free space
(Connell et al., 1997). The recruitment substrate feature is adversely
affected by four of the major threats to the five corals: ocean
acidification, trophic effects of reef fishing, nutrient enrichment,
and sedimentation.
The dominance of fleshy macroalgae as major space-occupiers on many
Caribbean coral reefs impedes the recruitment of new corals. A shift in
benthic community structure over recent decades from the dominance of
stony corals to fleshy algae on Caribbean coral reefs is generally
attributed to the greater persistence of fleshy macroalgae under
reduced grazing regimes due to human overexploitation of herbivorous
fishes (Edwards et al., 2014; Hughes, 1994; Jackson et al., 2014) and
the regional mass mortality of the herbivorous long-spined sea urchin
in 1983-84 (Hughes et al., 1987). As overall coral cover has declined,
the absolute area occupied by macroalgae has increased and herbivore
grazing capacity is spread more thinly across a larger relative amount
of space (Williams et al., 2001). A recent study found that when
herbivorous fish biomass was relatively high, macroalgae declined and
juvenile coral density increased (Steneck 2019). Further, impacts to
water quality (principally nutrient input) coupled with low herbivore
grazing are also believed to enhance fleshy macroalgal productivity.
Fleshy macroalgae are able to colonize dead coral skeleton and other
available substrate, preempting space available for coral recruitment
(McCook et al., 2001; Pastorok and Bilyard, 1985). The increasing
frequency of coral mortality events, such as the 2014-2016 global
bleaching event, continues to increase the amount of dead skeleton
available to be colonized by algae in the absence of coral recruitment.
The persistence of fleshy macroalgae under reduced grazing regimes
also negatively impacts CCA growth, potentially reducing settlement
cues, which may reduce settlement of coral larvae (Sharp et al., 2010).
Most CCA are susceptible to fouling by fleshy algae, particularly when
herbivores are absent (Steneck, 1986). Patterns observed in St. Croix
and USVI, also indicate a strong positive correlation between CCA
abundance and herbivory (Steneck and Testa, 1997). Both turf and
macroalgal cover increases and CCA cover decreases with reductions in
herbivory, which may last for a period of time even when herbivores are
reintroduced (de Ruyter van Steveninck and Bak, 1986; Liddell and
Ohlhorst, 1986; Miller et al., 1999). The ability of fleshy macroalgae
to affect growth and survival of CCA has indirect, yet important,
impacts on the ability of coral larvae to successfully settle and
recruit.
In addition to the direct impacts of ocean acidification on the
corals from reduced aragonite saturation state (discussed later in this
section), significant impacts to recruitment habitat are also expected.
Kuffner et al. (2007) and Jokiel et al. (2008) showed dramatic declines
in the growth rate of CCA and other reef organisms, and an increase in
the growth of fleshy algae at atmospheric CO2 levels
expected later this century. The decrease in CCA growth, coupled with
rapid growth of fleshy algae, will result in less available habitat and
more competition for settlement and recruitment of new coral colonies.
Several studies show that coral recruitment tends to be greater
when macroalgal biomass is low (Birrell et al., 2008a; Birrell et al.,
2005; Birrell et al., 2008b; Connell et al., 1997; Edmunds et al.,
2004; Hughes, 1985; Kuffner et al., 2006; Rogers et al., 1984; Vermeij,
2006). In addition to preempting space for coral larvae settlement,
many fleshy macroalgae produce secondary metabolites with generalized
toxicity that also may inhibit larval settlement, recruitment, and
survival (Kuffner and Paul, 2004; Kuffner et al., 2006; Paul et al.,
2011). Furthermore, algal turfs can trap sediments (Kendrick, 1991;
Nugues and Roberts, 2003a; Purcell and Bellwood, 2001; Purcell, 2000;
Steneck and Testa, 1997; Wilson and Harrison, 2003), which can act in
combination to hinder coral settlement (Birrell et al., 2005; Nugues
and Roberts, 2003a). These turf algae-sediment mats also can suppress
coral growth under high sediment conditions (Nugues and Roberts, 2003b)
and may gradually kill the marginal tissues of stony corals with which
they come into contact (Dustan, 1977). There is also evidence that
benthic cyanobacterial mats are becoming more prevalent and can also
inhibit coral recruitment (Benjarano 2018).
Coral recruitment habitat is also adversely impacted by sediment
cover, itself. Sediments enter the reef environment through many
processes that are natural or anthropogenic in origin, including
coastal erosion, coastal development, resuspension of bottom sediments,
terrestrial erosion and run-off, in-water construction, dredging for
coastal construction projects and navigation purposes, and in-water and
beach placement of dredge spoils. The rate of sedimentation affects
reef distribution, community structure, growth rates, and coral
recruitment (Dutra et al., 2006). Accumulation of sediment can smother
living corals, cover dead coral skeleton, and exposed hard substrate
(Erftemeijer et al., 2012; Fabricius, 2005). Sediment accumulation on
dead coral skeletons and exposed hard substrate reduces the amount of
available substrate for coral larvae settlement and fragment
reattachment (Rogers, 1990). The location of larval settlement must be
free of sediment for attachment to occur (Harrington et al., 2004;
Mundy and Babcock, 1998).
The depth of sediments over hard substrate affects the duration
that the substrate may be unavailable for settlement. The deeper the
sediment, the longer it may take for natural waves and currents to
remove the sediment from the settlement substrate. Lirman et al. (2003)
found sediment depth next to live coral colonies was approximately 1 cm
deep and significantly lower than the mean sediment depth collected
haphazardly on the reef. Sediment deposition threshold criteria have
recently been proposed for classifying sediment impacts to reef
habitats based on threshold values in peer-reviewed studies and new
modeling approaches (Nelson et al., 2016). Nelson et al. (2016) suggest
that sediment depth greater than 1 cm represents a significant impact
to corals, while sediment between 0.5 and 1 cm depth represents a
moderate impact, with the ability to recover. Nelson et al. (2016)
identify sediment depth less than 0.5 cm as posing minimal stress to
corals and settlement habitat.
Sediment grain size also affects the severity of impacts to corals
and recruitment substrate. Fine grain sediments have greater negative
effects to live coral tissue and to recruitment substrate (Erftemeijer
et al., 2012). Accumulation of sediments is also a major cause of
mortality in coral recruits (Fabricius et al., 2003). In some
instances, if mortality of coral recruits does not occur under heavy
sediment conditions, then settled coral planulae may undergo reverse
metamorphosis and die in the water column (Te, 1992). Sedimentation,
therefore, impacts the health and survivorship of all life stages
(i.e., adults, fragments, larvae, and recruits) of corals, in addition
to adversely affecting recruitment habitat.
The literature provides several recommendations on maximum
sedimentation rates for coral reefs (i.e., levels that managers should
strive to stay under). De'ath and Fabricius (2008) and The Great
Barrier Reef Marine Park Authority (GBRMPA) (2010)
[[Page 54034]]
recommend that sedimentation on the Great Barrier Reef (GBR) be less
than a mean annual rate of 3 mg/cm\2\/day, and less than a daily
maximum of 15 mg/cm\2\/day. Rogers (1990) recommends that sedimentation
rates on coral reefs globally be less than a mean maximum of 10 mg/
cm\2\/day to maintain healthy corals, and also notes that moderate to
severe effects on corals are generally expected at mean maximum
sedimentation rates of 10 to 50 mg/cm\2\/day, and severe to
catastrophic effects at >50 mg/cm\2\/day. Similarly, Erftemeijer et al.
(2012) suggest that moderate to severe effects to corals are expected
at mean maximum sedimentation rates of >10 mg/cm\2\/day, and
catastrophic effects at >50 mg/cm\2\/day. Nelson et al. (2016) suggest
that sediment depths of >0.5 cm result in substantial stress to most
coral species, and that sediment depths of >1.0 cm are lethal to most
coral species. The above generalizations are for coral reef communities
and ecosystems, rather than individual species.
Sublethal effects of sediment to corals potentially occur at much
lower levels than mortality. Sublethal effects include reduced growth,
lower calcification rates and reduced productivity, bleaching,
increased susceptibility to diseases, physical damage to coral tissue
and reef structures (breaking, abrasion), and reduced regeneration from
tissue damage (see reviews by Fabricius et al., 2005; Erftemeijer et
al., 2012; Browne et al., 2015; and Rogers, 1990). Erftemeijer et al.
(2012) states that sublethal effects for coral species that are
sensitive, intermediate, or tolerant to sediment (i.e., most reef-
building coral species) occur at mean maximum sedimentation rates of
between <10 and 200 mg/cm\2\/day, depending on species, exposure
duration, and other factors.
Artificial substrates and frequently disturbed ``managed areas''
are not essential to coral conservation. Only natural substrates
provide the quality and quantity of recruitment habitat necessary for
the conservation of threatened corals. Artificial substrates are
generally less functional than natural substrates in terms of
supporting healthy and diverse coral reef ecosystems (Edwards and
Gomez, 2007; USFWS, 2004). Artificial substrates are manmade or
introduced substrates that are not naturally occurring to the area.
Examples include, but are not necessarily limited to, fixed and
floating structures, such as aids-to-navigation (AToNs), jetties,
groins, breakwaters, seawalls, wharves, boat ramps, fishpond walls,
pipes, wrecks, mooring balls, docks, aquaculture cages, and other
artificial structures. The essential feature does not include any
artificial substrate. In addition, there are some natural substrates
that, because of their consistently disturbed nature, also do not
provide the quality of substrate necessary for the conservation of
threatened corals. While these areas may provide hard substrate for
coral settlement and growth over short periods, the periodic nature of
direct human disturbance renders them poor environments for coral
growth and survival over time (e.g., they can become covered with
sediment). Therefore, they are not essential to the conservation of the
species. Specific areas that may contain these disturbed natural
substrates are described in the Specific Areas Containing the Essential
Features section of this rule.
The substrate characterized previously must be associated with
water that also supports all life functions of corals that are carried
out at the site. Water quality conditions fluctuate greatly over
various spatial and temporal scales in natural reef environments
(Kleypas et al., 1999). However, certain levels of particular
parameters (e.g., water clarity, water temperature, aragonite
saturation) must occur on average to provide the conditions conducive
to coral growth, reproduction, and recruitment. Corals may tolerate and
survive in conditions outside these levels, depending on the local
conditions to which they have acclimatized and the intensity and
duration of any deviations from conditions conducive to a particular
coral's growth, reproduction, and recruitment. Deviations from
tolerance levels of certain parameters result in direct negative
effects on all life stages.
As described in the Final Information Report, corals thrive in
warm, clear, nutrient-poor marine waters with calcium carbonate
concentrations that allow for symbiont photosynthesis, coral
physiological processes, and skeleton formation. The water must also
have low to no levels of contaminants (e.g., heavy metals, chemicals)
that would interfere with normal functions of all life stages. Water
quality that supports normal functions of corals is adversely affected
by ocean warming, ocean acidification, nutrient enrichment,
sedimentation, and contamination.
Seawater temperature is a particularly important limiting factor of
coral habitat. Corals occur in a fairly-wide temperature range across
geographic locations (15.7 [deg]C-35.5 [deg]C weekly average and 21.7-
29.6 [deg]C annual average; Guan et al., 2015), but only thrive in
areas with mean temperatures in a fairly-narrow range (typically 25
[deg]C-29 [deg]C) as indicated by the formation of coral reefs
(Brainard et al., 2011; Kleypas et al., 1999; Stoddart, 1969; Vaughan,
1919). Short-term exposure (days) to temperature increases of a few
degrees (i.e., 3 [deg]C-4 [deg]C increase above climatological mean
maximum summer temperature) or long-term exposure (several weeks) to
minor temperature increases (i.e., 1 [deg]C-2 [deg]C above mean maximum
summer temperature) can cause significant thermal stress and mortality
to most coral species (Berkelmans and Willis, 1999; Jokiel and Coles,
1990; Donner, 2005; Donner 2009).
Ocean warming is one of the most significant threats to the five
ESA-listed Caribbean corals considered in this rule (Brainard et al.,
2011). Mean seawater temperatures in reef-building coral habitat in
both the Caribbean and Indo-Pacific have increased during the past few
decades, and are predicted to continue to rise between now and 2100
(IPCC, 2013). The primary observable coral response to ocean warming is
bleaching of adult coral colonies, wherein corals expel their symbiotic
zooxanthellae in response to stress (Brown, 1997). For many corals, an
episodic increase of only 1 [deg]C-2 [deg]C above the normal local
seasonal maximum ocean temperature can induce bleaching (Hoegh-Guldberg
et al., 2007; Jones, 2008; Whelan et al., 2007). Corals can withstand
mild to moderate bleaching; however, severe, repeated, or prolonged
bleaching can lead to colony death (Brown, 1997; Whelan et al., 2007).
Increased sea surface temperatures are occurring more frequently and
leading to multiple mass bleaching events (Hughes et al., 2017), which
are reoccurring too rapidly for coral populations to rebound in between
(Hughes et al., 2018).
Coles and Brown (2003) defined a general bleaching threshold for
reef-building corals as increases in seawater temperatures of 1-3
[deg]C above maximum annual mean temperatures at a given location.
Great Barrier Reef Marine Park Authority (2010) defined a general
``trigger value'' for bleaching in reef-building corals as increases in
seawater temperatures of no more than 1 [deg]C above maximum annual
mean temperatures at a given location. Because duration of exposure to
elevated temperatures determines the extent of bleaching, several
methods have been developed to integrate duration into bleaching
thresholds, including the number of days, weeks, or months of the
elevated temperatures (Berkelmans, 2002; Eakin et al., 2009; Goreau and
Hayes, 1994; Podesta and Glynn, 1997). NOAA's Coral Reef Watch Program
utilizes the
[[Page 54035]]
Degree Heating Week method (Glynn & D'Croz, 1990; Eakin et al. 2009),
which defines a general bleaching threshold for reef-building corals as
seawater temperatures of 1[deg]C above the maximum monthly mean at a
given location for 4 consecutive weeks (https://coralreefwatch.noaa.gov/).
These general thresholds were developed for coral reef communities
and ecosystems, rather than individual species. Many of these studies
are community or ecosystem-focused and do not account for species-
specific responses to changes in seawater temperatures, and instead are
focused on long-term climatic changes and large-scale impacts (e.g.,
coral reef distribution, persistence).
In addition to coral bleaching, other effects of ocean warming
detrimentally affect virtually every life-history stage of reef-
building corals. Impaired fertilization and developmental abnormalities
(Negri and Heyward, 2000), mortality, and impaired settlement success
(Nozawa and Harrison, 2007; Putnam et al., 2008; Randall and Szmant,
2009) have all been documented. Increased seawater temperature also may
act synergistically with coral diseases to reduce coral health and
survivorship (Bruno and Selig, 2007). Coral disease outbreaks often
have either accompanied or immediately followed bleaching events
(Brandt and McManus, 2009; Jones et al., 2004a; Lafferty et al., 2004;
Miller et al., 2009; Muller et al., 2008). Outbreaks also follow
seasonal patterns of high seawater temperatures (Sato et al., 2009;
Willis et al., 2004).
In summary, temperature deviations from local averages prevent or
impede successful completion of all life history stages of the listed
coral species. Identifying temperatures at which the conservation value
of habitat for listed corals may be affected is inherently complex and
influenced by taxa, exposure duration, and other factors.
Carbonate ions (CO32-) are used by
many marine organisms, including corals, to build calcium carbonate
skeletons. The mineral form of calcium carbonate used by corals to form
their skeletons is aragonite. The more carbonate ions dissolved in
seawater, the easier it is for corals to build their aragonite
skeletons. The metric used to express the relative availability of
calcium and carbonate ions is the aragonite saturation state
([Omega]arg). Thus, the lower the [Omega]arg of
seawater, the lower the abundance of carbonate ions, and the more
energy corals have to expend for skeletal calcification, and vice versa
(Cohen and Holcomb, 2009). At saturation states between 1 and 20,
marine organisms can create calcium carbonate shells or skeletons using
a physiological calcifying mechanism and the expenditure of energy. The
aragonite saturation state varies greatly within and across coral reefs
and through daily cycles with temperature, salinity, pressure, and
localized biological processes such as photosynthesis, respiration, and
calcification by marine organisms (Gray et al., 2012; McMahon et al.,
2013; Shaw et al., 2012b)).
Coral reefs form in an annually-averaged saturation state of 4.0 or
greater for optimal calcification, and an annually-averaged saturation
state below 3.3 will result in reduced calcification at rates
insufficient to maintain net positive reef accretion, resulting in loss
of reef structure (Guinotte et al., 2003; Hoegh-Guldberg et al., 2007).
Guinotte et al. (2003) classified the range of aragonite saturation
states between 3.5-4.0 as ``adequate'' and < 3 as ``extremely
marginal.'' Thus, an aragonite saturation state between 3 and 4 is
likely necessary for coral calcification. But, generally, seawater
[Omega]arg should be 3.5 or greater to enable maximum
calcification of reef-building corals, and average
[Omega]arg in most coral reef areas is currently in that
range (Guinotte et al., 2003). Further, Kleypas et al. (1999) concluded
that a general threshold for [Omega]arg occurs near 3.4,
because only a few reefs occur where saturation is below this level.
Guan et al. (2015) found that the minimum aragonite saturation observed
where coral reefs currently occur is 2.82; however, it is not known if
those locations hosted live, accreting corals.
Ocean acidification is a term referring to changes in ocean
carbonate chemistry, including a drop in the pH of ocean waters, that
is occurring in response to the rise in the quantity of atmospheric
CO2 and the partial pressure of CO2
(pCO2) absorbed in oceanic waters (Caldeira and Wickett,
2003). As pCO2 rises, oceanic pH declines through the
formation of carbonic acid and subsequent reaction with water resulting
in an increase of free hydrogen ions. The free hydrogen ions react with
carbonate ions to produce bicarbonate, reducing the amount of carbonate
ions available, and thus reducing the aragonite saturation state.
A variety of laboratory studies conducted on corals and coral reef
organisms (Langdon and Atkinson, 2005) consistently show declines in
the rate of coral calcification and growth with rising pCO2,
declining pH, and declining carbonate saturation state. Laboratory
experiments have also shown that skeletal deposition and initiation of
calcification in newly settled corals is reduced by declining aragonite
saturation state (Albright et al., 2008; Cohen et al., 2009). Field
studies from a variety of coral locations in the Caribbean, Indo-
Pacific, and Red Sea have shown a decline in linear extension rates of
coral skeleton under decreasing aragonite saturation state (Bak et al.,
2009; De'ath et al., 2009; Schneider and Erez, 2006; Tanzil et al.,
2009). In addition to effects on growth and calcification, recent
laboratory experiments have shown that increased pCO2 also
substantially impairs fertilization and settlement success in Acropora
palmata (Albright et al., 2010). Reduced calcification and slower
growth will mean slower recovery from breakage, whether natural
(hurricanes and storms) or human (breakage from vessel groundings,
anchors, fishing gear, etc.), or mortality from a variety of
disturbances. Slower growth also implies even higher rates of mortality
for newly settled corals due to the longer time it will take to reach a
colony size that is no longer vulnerable to overgrowth competition,
sediment smothering, and incidental predation. Reduced calcification
and slower growth means more time to reach reproductive size and
reduces sexual and asexual reproductive potential. Increased
pCO2 coupled with increased sea surface temperature can lead
to even lower rates of calcification, as found in the meta-analysis by
Kornder et al. (2018).
In summary, aragonite saturation reductions prevent or impede
successful completion of all life history stages of the listed coral
species. Identifying the declining aragonite saturation state at which
the conservation value of habitat for listed corals may be affected is
inherently complex and influenced by taxa, exposure duration, and other
environmental and physiological factors.
Nitrogen and phosphorous are two of the main nutrients that affect
the suitability of the water column in coral reef habitats (Fabricius
et al., 2005; Fabricius, 2005). These two nutrients occur as different
compounds in coral reef habitats and are necessary in low levels for
normal reef function. Dissolved inorganic nitrogen and dissolved
inorganic phosphorus in the forms of nitrate
(NO3-) and phosphate
(PO43-) are particularly important for
photosynthesis, with dissolved organic nitrogen also providing an
important source of nitrogen, and are the dominant forms of nitrogen
and phosphorous in coral reef waters.
Excessive nutrients affect corals through two main mechanisms:
direct
[[Page 54036]]
effects on coral physiology, such as reduced fertilization and growth
(Harrison and Ward, 2001; Ferrier-Pages et al., 2000), and indirect
effects through nutrient-stimulation of other community components
(e.g., macroalgae seaweeds, turfs/filamentous algae, cyanobacteria, and
filter feeders) that compete with corals for space on the reef (79 FR
53851, September 10, 2014). As discussed previously, the latter also
affects the quality of recruitment substrate. The physiological
response a coral exhibits to an increase in nutrients mainly depends on
concentration and duration. A short duration of a high increase in a
nutrient may result in a severe adverse response, just as a chronic,
lower concentration might. Increased nutrients can result in adverse
responses in all life stages and affect most physiological processes,
resulting in reduced number and size of gametes (Ward and Harrison,
2000), reduced fertilization (Harrison and Ward, 2001), reduced growth,
mortality (Ferrier-Pages et al., 2000; Koop et al., 2001), increased
disease progression (Vega Thurber et al., 2013; Voss and Richardson,
2006), tissue loss (Bruno et al., 2003), and bleaching (Kuntz et al.,
2005; Wiedenmann et al., 2012).
Most coral reefs occur where annual mean nutrient levels are low.
Kleypas et al. (1999) analyzed dissolved nutrient data from nearly
1,000 coral reef sites, finding mean values of 0.25 micromoles per
liter ([mu]mol/l) for NO3-, and 0.13 [mu]mol/l for
PO4. Over 90 percent of the sites had mean NO3
values of <0.6 [mu]mol/l, and mean PO4 values of <0.2
[mu]mol/l (Kleypas et al., 1999). Several authors, including Bell and
Elmetri (1995) and Lapointe (1997) have proposed threshold values of
1.0 [mu]mol/l for NO3, and 0.1-0.2 [mu]mol/l for
PO4, beyond which reefs are assumed to be eutrophic.
However, concentrations of dissolved nutrients are poor indicators of
coral reef status, and the concept of a simple threshold concentration
that indicates eutrophication has little validity (McCook, 1999). One
reason for that is because corals are exposed to nutrients in a variety
of forms, including dissolved nitrogen (e.g., NO3),
dissolved phosphorus (e.g., PO43), particulate nitrogen
(PN), and particulate phosphate (PP). Since the dissolved forms are
assimilated rapidly by phytoplankton, and the majority of nitrogen and
phosphorus discharged in terrestrial runoff is in the particulate
forms, PN and PP are the most common bio-available forms of nutrients
for corals on coastal zone reefs (Cooper et al., 2008). De'ath and
Fabricius (2008) and GBRMPA (2010) provide general recommendations on
maximum annual mean values for PN and PP of 1.5 [mu]mol/l PN and 0.09
[mu]mol/l PP for coastal zone reefs. These generalizations are for
coral reef communities and ecosystems, rather than individual species.
As noted above, identifying nutrient concentrations at which the
conservation value of habitat for listed corals may be affected is
inherently complex and influenced by taxa, exposure duration,
acclimatization to localized nutrient regimes, and other factors.
Water clarity or transparency is a key factor for marine ecosystems
and it is the best explanatory variable for a range of bioindicators of
reef health (Fabricius et al., 2012). Water clarity affects the light
availability for photosynthetic organisms and food availability for
filter feeders. Corals depend upon their symbiotic algae for nutrition
and thus depend on light availability for algal photosynthesis. Reduced
water clarity is determined by the presence of particles of sediment,
organic matter, and/or plankton in the water, and so is often
associated with elevated sedimentation and/or nutrients. Water clarity
can be measured in multiple ways, including percent of solar irradiance
at depth, Secchi depth (the depth in the water column at which a black
and white disk is no longer visible), total suspended solids (TSS), and
Nephelometric Turbidity Unit (NTU) (measure of light scatter based on
particles in the water column). Reef-building corals naturally occur
across a broad range of water clarity levels from very turbid waters on
enclosed reefs near river mouths (Browne et al., 2012) to very clear
waters on offshore barrier reefs, and many intermediate habitats such
as open coastal and mid-shelf reefs (GBRMPA, 2010). Coral reefs appear
to thrive in extremely clear areas where Secchi depth is >= 15 m or
light scatter is < 1 NTU (De'ath and Fabricius, 2010). Typical levels
of TSS in reef environments are less than 10 mg/L (Rogers, 1990). The
minimum light level for reef development is about 6-8 percent of
surface irradiance (Fabricius et al., 2014).
For a particular coral colony, tolerated water clarity levels
likely depend on several factors, including species, life history
stage, spatial variability, and temporal variability. For example,
colonies of a species occurring on fringing reefs around high volcanic
islands with extensive groundwater inputs are likely to be better
acclimatized or adapted to higher turbidity than colonies of the same
species occurring on offshore barrier reefs or around atolls with very
little or no groundwater inputs. In some cases, corals occupy naturally
turbid habitats (Anthony and Larcombe, 2000; McClanahan and Obura,
1997; Te, 2001) where they may benefit from the reduced amount of UV
radiation to which they are exposed (Zepp et al., 2008).
Reductions in water clarity affect light availability for corals.
As turbidity and nutrients increase, thus decreasing water clarity,
reef community composition shifts from coral-dominated to macroalgae-
dominated, and ultimately to heterotrophic animals (Fabricius et al.,
2012). Light penetration is diminished by suspended abiotic and biotic
particulate matter (esp. clay and silt-sized particles) and some
dissolved substances (Fabricius et al., 2014). The availability of
light decreases directly as a function of particle concentration and
water depth, but also depends on the nature of the suspended particles.
Fine clays and organic particles are easily suspended from the sea
floor, reducing light for prolonged periods, while undergoing cycles of
deposition and resuspension. Suspended fine particles also carry
nutrients and other contaminants (Fabricius et al., 2013). Increased
nutrient runoff into semi-enclosed seas accelerates phytoplankton
production to the point that it also increases turbidity and reduces
light penetration, and can also settle on colony surfaces (Fabricius,
2005). In areas of nutrient enrichment, light for benthic organisms can
be additionally severely reduced by dense stands of large fleshy
macroalgae shading adjacent corals (Fabricius, 2005).
The literature provides several recommendations on maximum
turbidity levels for coral reefs (i.e., levels that managers should
strive to stay under). GBRMPA (2010) recommends minimum mean annual
water clarity, or ``trigger values'', in Secchi distances for the GBR
depending on habitat type: for enclosed coastal reefs, 1.0-1.5 m; for
open coastal reefs and mid-shelf reefs, 10 m; and for offshore reefs,
17 m. De'ath and Fabricius (2008) recommend a minimum mean annual water
clarity trigger value in Secchi distance averaged across all GBR
habitats of 10 m. Bell and Elmetri (1995) recommend a maximum value of
3.3 mg/L TSS across all GBR habitats. Thomas et al. (2003) recommend a
maximum value of 10 mg/L averaged across all Papua New Guinea coral
reef habitats. Larcombe et al. (2001) recommend a maximum value of 40
mg/L TSS for GBR ``marginal reefs'', i.e., reefs close to shore with
high natural turbidity levels. Guan et al.
[[Page 54037]]
(2015) recommend a minimum light intensity ([mu]mol photons second/
m\2\) of 450 [mu]mol photons second/m\2\ globally for coral reefs. The
above generalizations are for coral reef communities and ecosystems,
rather than individual species.
A coral's response to a reduction in water clarity is dependent on
the intensity and duration of the particular conditions. For example,
corals exhibited partial mortality when exposed to 476 mg/L TSS
(Bengtsson et al., 1996) for 96 hours, but had total mortality when
exposed to 1000 mg/L TSS for 65 hours (Thompson and Bright, 1980).
Depending on the duration of exposure, most coral species exhibited
sublethal effects when exposed to turbidity levels between 7 and 40 NTU
(Erftemeijer et al., 2012). The most tolerant coral species exhibited
decreased growth rates when exposed to 165 mg/L TSS for 10 days (Rice
and Hunter, 1992). By reducing water clarity, turbidity also reduces
the maximum depth at which corals can live, making deeper habitat
unsuitable (Fabricius, 2005). Existing data suggest that coral
reproduction and settlement are more highly sensitive to changes in
water clarity than adult survival, and these functions are dependent on
clear water. Suspended particulate matter reduces fertilization and
sperm function (Ricardo et al., 2015), and strongly inhibits larvae
survival, settlement, recruitment, and juvenile survival (Fabricius,
2005).
In summary, water clarity deviations from local averages prevent or
impede successful completion of all life history stages of the listed
coral species. Identifying turbidity levels at which the conservation
value of habitat for listed corals may be affected is inherently
complex and influenced by taxa, exposure duration, acclimatization to
localized nutrient regimes, and other factors.
The water column may include levels of anthropogenically-introduced
chemical contaminants that prevent or impede successful completion of
all life history stages of the listed coral species. For the purposes
of this rule, ``contaminants'' is a collective term to describe a suite
of anthropogenically-introduced chemical substances in water or
sediments that may adversely affect corals. The study of the effects of
contaminants on corals is a relatively new field and information on
sources and ecotoxicology is incomplete. The major groups of
contaminants that have been studied for effects to corals include heavy
metals (also called trace metals), pesticides, and hydrocarbons. Other
organic contaminants, such as chemicals in personal care products,
polychlorinated biphenyl, and surfactants, have also been studied.
Contaminants may be delivered to coral reefs via point or non-point
sources. Specifically, contaminants enter the marine environment
through wastewater discharge, shipping, industrial activities, and
agricultural and urban runoff. These contaminants can cause negative
effects to coral reproduction, development, growth, photosynthesis, and
survival.
Heavy metals (e.g., copper, cadmium, manganese, nickel, cobalt,
lead, zinc, and iron) can be toxic at concentrations above naturally-
occurring levels. Heavy metals are persistent in the environment and
can bioaccumulate. Metals are adsorbed to sediment particles, which can
result in their long distance transport away from sources of pollution.
Corals incorporate metals in their skeleton and accumulate them in
their soft tissue (Al-Rousan et al., 2012; Barakat et al., 2015).
Although heavy metals can occur in the marine environment from natural
processes, in nearshore waters they are mostly a result of
anthropogenic sources (e.g., wastewater, antifouling and anticorrosive
paints from marine vessels and structures, land filling and dredging
for coastal expansion, maritime activities, inorganic and organic
pollutants, crude oil pollution, shipping processes, industrial
discharge, agricultural activities), and are found near cities, ports,
and industrial developments.
The effects of copper on corals include physiological impairment,
impaired photosynthesis, bleaching, reduced growth, and DNA damage
(Bielmyer et al., 2010; Schwarz et al., 2013). Adverse effects to
fertilization, larval development, larval swimming behavior,
metamorphosis, and larval survival have also been documented (Kwok and
Ang, 2013; Negri and Hoogenboom, 2011; Puisay et al., 2015; Reichelt-
Brushett and Hudspith, 2016; Rumbold and Snedaker, 1997). Copper
toxicity was found to be higher when temperatures are elevated (Negri
and Hoogenboom, 2011). Nickel and cobalt can also have negative effects
on corals, such as reduced growth and photosynthetic rates (Biscere et
al., 2015), and reduced fertilization success (Reichelt-Brushett and
Hudspith, 2016). Chronic exposure of corals to higher levels of iron
may significantly reduce growth rates (Ferrier-Pages et al., 2001).
Further, iron chloride has been found to cause oxidative DNA damage to
coral larvae (Vijayavel et al., 2012).
Polycyclic aromatic hydrocarbons (PAHs) are found in fossil fuels,
such as oil and coal, and can be produced by the incomplete combustion
of organic matter. PAHs disperse through non-point sources such as road
run-off, sewage, and deposition of particulate air pollution. PAHs can
also disperse from point sources such as oil spills and industrial
sites. Studies have found adverse effects of oil pollution on corals
that include growth impairments, mucus production, and decreased
reproduction, especially at increased temperatures (Kegler et al.,
2015). Hydrocarbons have also been found to affect early life stages of
corals. Oil-contaminated seawater reduced settlement of O. faveolata
and Agaricia humilis and was more severe than any direct or latent
effects on survival (Hartmann et al., 2015). Natural gas (water
accommodated fraction) exposure resulted in abortion of larvae during
early embryogenesis and early release of larvae during late
embryogenesis, with higher concentrations of natural gas yielding
higher adverse effects (Villanueva et al., 2011). Exposure to oil,
dispersants, and a combination of oil and dispersant significantly
decreased settlement and survival of Porites astreoides and Orbicella
faveolata larvae (Goodbody-Gringley et al., 2013).
Anthracene (a PAH that is used in dyes, wood preservatives,
insecticides, and coating materials) exposure to apparently healthy
fragments and diseased fragments (Caribbean yellow band disease) of O.
faveolata reduced activity of enzymes important for protection against
environmental stressors in the diseased colonies (Montilla et al.,
2016). The results indicated that diseased tissues might be more
vulnerable to exposure to PAHs such as anthracene compared to healthy
corals. PAH concentrations similar to those present after an oil spill
inhibited metamorphosis of Acropora tenuis larvae, and sensitivity
increased when larvae were co-exposed to PAHs and ``shallow reef''
ultraviolet (UV) light levels (Negri et al., 2016).
Pesticides include herbicides, insecticides, and antifoulants used
on vessels and other marine structures. Pesticides can affect non-
target marine organisms like corals and their zooxanthellae. Diuron, an
herbicide, decreased photosynthesis in zooxanthellae that had been
isolated from the coral host and grown in culture (Shaw et al., 2012a).
Irgarol, an additive in copper-based antifouling paints, significantly
reduced settlement in Porites hawaiiensis (Knutson et al., 2012).
Porites astreoides larvae exposed to two major mosquito pesticide
ingredients, naled and permethrin, for
[[Page 54038]]
18-24 hours showed differential responses. Concentrations of 2.96
[micro]g/L or greater of naled significantly reduced larval
survivorship, while exposure of up to 6.0 [micro]g/L of permethrin did
not result in reduced larval survivorship. Larval settlement, post-
settlement survival, and zooxanthellae density were not impacted by any
treatment (Ross et al., 2015).
Benzophenone-2 (BP-2) is a chemical additive to personal care
products (e.g., sunscreen, shampoo, body lotions, soap, detergents),
product coatings (oil-based paints, polyurethanes), acrylic adhesives,
and plastics that protects against damage from UV light. It is released
into the ocean through municipal and boat/ship wastewater discharges,
landfill leachates, residential septic fields, and unmanaged cesspits
(Downs et al., 2014). BP-2 is a known endocrine disruptor and a DNA
mutagen, and its effects are worse in the light. It caused deformation
of scleractinian coral Stylophora pistillata larvae, changing them from
a motile planktonic state to a deformed sessile condition at low
concentrations (Downs et al., 2014). It also caused increasing larval
bleaching with increasing concentration (Downs et al., 2014).
Benzophenone-3 (BP-3; oxybenzone) is an ingredient in sunscreen and
personal care products (e.g., hair cleaning and styling products,
cosmetics, insect repellent, soaps) that protects against damage from
UV light. It enters the marine environment through swimmers and
municipal, residential, and boat/ship wastewater discharges and can
cause DNA mutations. Oxybenzone is a skeletal endocrine disruptor, and
it caused larvae of S. pistillata to encase themselves in their own
skeleton (Downs et al., 2016). Exposure to oxybenzone transformed S.
pistillata larvae from a motile state to a deformed, sessile condition
(Downs et al., 2016). Larvae exhibited an increasing rate of coral
bleaching in response to increasing concentrations of oxybenzone (Downs
et al., 2016).
Polychlorinated biphenyls (PCBs) are environmentally stable,
persistent organic contaminants that have been used as heat exchange
fluids in electrical transformers and capacitors and as additives in
paint, carbonless copy paper, and plastics. They can be transported
globally through the atmosphere, water, and food chains. A study of the
effects of the PCB, Aroclor 1254, on the Stylophora pistillata found no
effects on coral survival, photosynthesis, or growth; however, the
exposure concentration and duration may alter the expression of certain
genes involved in various important cellular functions (Chen et al.,
2012).
Surfactants are used as detergents and soaps, wetting agents,
emulsifiers, foaming agents, and dispersants. Linear alkylbenzene
sulfonate (LAS) is one of the most common surfactants in use.
Biodegradation of surfactants can occur within a few hours up to
several days, but significant proportions of surfactants attach to
suspended solids and remain in the environment. This sorption of
surfactants onto suspended solids depends on environmental factors such
as temperature, salinity, or pH. Exposure of Pocillopora verrucosa to
LAS resulted in tissue loss on fragments (Kegler et al., 2015). The
combined effects of LAS exposure with increased temperature (+3 [deg]C,
from 28 to 31 [deg]C) resulted in greater tissue loss than LAS exposure
alone (Kegler et al., 2015).
In summary, there are multiple chemical contaminants that prevent
or impede successful completion of all life history stages of the
listed coral species. Identifying contaminant levels at which the
conservation value of habitat for listed corals may be affected is
inherently complex and influenced by taxa, exposure duration, and other
factors.
As described above, the best-available information shows coral
reefs form on solid substrate, but only within a narrow range of water
column conditions that on average allow the deposition rates of corals
to exceed the rates of physical, chemical, and biological erosion
(i.e., conducive conditions, Brainard et al., 2005). However, as with
all ecosystems, water column conditions are dynamic and vary over space
and time. Therefore, we also describe environmental conditions in which
coral reefs currently exist globally, thus indicating the conditions
that may be tolerated by corals and allow at least for survival. To the
extent tolerance conditions deviate in duration and intensity from
conducive conditions, they may not support coral reproduction and
recruitment, and reef growth, and thus would impair the recovery of the
species. Further, annually and spatially averaged-tolerance ranges
provide the limits of the environmental conditions in which coral reefs
exist globally (Guan et al., 2015), but these conditions do not
necessarily represent the conditions that may be tolerated by
individual coral species. Individual species may or may not be able to
withstand conditions within or exceeding the globally-averaged
tolerance ranges for coral reefs, depending on the individual species'
biology, local average conditions to which the species are
acclimatized, and intensity and duration of exposure to adverse
conditions. In other words, changes in the water column parameters
discussed above that exceed the tolerance ranges may induce adverse
effects in a particular species. Thus, the concept of individual
species' tolerance limits is a different aspect of water quality
conditions compared to conditions that are conducive for formation and
growth of reef structures.
These values presented in the summaries above constitute the best
available information at the time of this rulemaking. It is possible
that future scientific research will identify more species-specific
values for some of these parameters that become more applicable to the
five listed coral species, though it is also possible that future
species-specific research will document that conducive or tolerance
ranges for the five Caribbean corals fall within these ranges. Because
the ESA requires us to use the best scientific information available in
conducting consultations under section 7, we will incorporate any such
new scientific information into consultations when evaluating potential
impacts to the critical habitat.
Special Management Considerations or Protection
Specific areas within the geographical area occupied by a species
may be designated as critical habitat only if they contain essential
features that may require special management considerations or
protection (16 U.S.C. 1532(5)(A)(i)(II). Special management
considerations or protection are any methods or procedures useful in
protecting physical or biological features for the conservation of
listed species (50 CFR 424.02). In determining whether the essential
physical or biological features ``may require'' special management
considerations or protection, it is necessary only to find that there
is a possibility that the features may require special management
considerations or protection in the future; it is not necessary to find
that such management is presently or immediately required. Home
Builders Ass'n of N. California v. U.S. Fish and Wildlife Serv., 268 F.
Supp. 2d 1197, 1218 (E.D. Cal. 2003).
The essential feature we have identified is particularly
susceptible to impacts from human activity because of the relatively
shallow water depth range (less than 295 ft (90 m)) the corals inhabit.
The proximity of this habitat to coastal areas subjects this feature to
impacts from multiple activities, including, but not limited to,
coastal and in-water construction, dredging and disposal activities,
beach nourishment,
[[Page 54039]]
stormwater run-off, wastewater and sewage outflow discharges, point and
non-point source discharges of contaminants, and fishery management.
Further, the global oceans are being impacted by climate change from
greenhouse gas emissions, particularly the tropical oceans in which the
Caribbean corals occur (van Hooidonk et al., 2014). The impacts from
these activities, combined with those from natural factors (e.g., major
storm events), significantly affect habitat for all life stages for
these threatened corals. We conclude that the essential feature is
currently and will likely continue to be negatively impacted by some or
all of these factors.
Greenhouse gas emissions (e.g., fossil fuel combustion) lead to
global climate change and ocean acidification. These activities
adversely affect the essential feature by increasing sea surface
temperature and decreasing the aragonite saturation state. Coastal and
in-water construction, channel dredging, and beach nourishment
activities can directly remove the essential feature by dredging it or
by depositing sediments on it, making it unavailable for settlement and
recruitment of coral larvae or fragments. These same activities can
impact the essential feature by creating turbidity during operations.
Stormwater run-off, wastewater and sewage outflow discharges, and point
and non-point source contaminant discharges can adversely impact the
essential feature by allowing nutrients and sediments, as well as
contaminants, from point and non-point sources, including sewage,
stormwater and agricultural runoff, river discharge, and groundwater,
to alter the natural levels in the water column. The same activities
can also adversely affect the essential feature by increasing the
growth rates of macroalgae, which preempts available recruitment
habitat. Fishery management can adversely affect the essential feature
if it allows for the reduction in the number of herbivorous fishes
available to control the growth of macroalgae on the substrate.
Given these ongoing threats throughout the corals' habitat, we find
that the essential feature may require special management
considerations.
Specific Areas Containing the Essential Feature
The definition of critical habitat requires us to identify specific
areas on which are found the physical or biological features essential
to the species' conservation that may require special management
considerations or protection. Our regulations state that critical
habitat will be shown on a map, with more-detailed information
discussed in the preamble of the rulemaking documents in the Federal
Register, which will reference each area by the State, county, or other
local governmental unit in which it is located (50 CFR 424.12(c)). Our
regulations also state that when several habitats, each satisfying
requirements for designation as critical habitat, are located in
proximity to one another, an inclusive area may be designated as
critical habitat (50 CFR 424.12(d)).
For each of the five coral species, boundaries of specific areas
were determined by each species' commonly occupied minimum and maximum
depth ranges within each coral's range at the time of listing. Across
all 5 coral species, a total of 28 specific areas were identified as
being under consideration for critical habitat designation. There are
five or six specific areas per species, depending on whether the
species occurs in FGBNMS; one area each in Florida, Puerto Rico, St.
Thomas and St. John, USVI, St. Croix, USVI, FGB, and Navassa Island.
Within each of the geographic areas, the individual species' specific
areas are largely-overlapping. For example, in Puerto Rico, there are
five largely-overlapping specific areas, one for each species, that
surround each of the islands. The difference between each of the areas
is the particular depth contours that were used to create the
boundaries. For example, Dendrogyra cylindrus' specific area in Puerto
Rico extends from the 1-m contour to the 25-m contour, which mostly
overlaps the Orbicella annularis specific area that extends from the
0.5-m contour to the 20-m contour. Overlaying all of the specific areas
for each species results in the maximum geographic extent of these
critical habitat designations, which cover 1.6 to 295 ft (0.5-90 m)
water depth around all the islands of Puerto Rico, USVI, and Navassa,
53 ft to 295 ft (16-90 m) in FGB, and 1.6 to 131 ft (0.5-40 m) from St.
Lucie Inlet, Martin County to Dry Tortugas, Florida. The minimum depth
in FGBNMS was updated from 17 m to 16 m for Orbicella annularis, O.
faveolata, and O. franksi based on public comment (see the response to
Comment 4 above). The maximum depth was updated from 90 m to 40 m in
Florida for O. faveolata, O. franksi, and Mycetophyllia ferox based on
public comment and new information (Reed, 2021).
To map these specific areas we reviewed available data on species
occurrence, bathymetry, substrate, and water quality. We used the
highest resolution bathymetric data available from multiple sources
depending on the geographic location. In Florida and the FGB, we used
contours created from National Ocean Service Hydrographic Survey Data
and NOAA ENCDirect bathymetric point data (NPS) and contours created
from NOAA's Coastal Relief Model. We also used bathymetry collected
with multi-beam sonar in the FGB (USGS, 2002). In Puerto Rico, contours
were derived from the National Geophysical Data Center's (NGDC) 2005
U.S. Coastal Relief Model. In USVI, we used contours derived from
NOAA's 2004-2015 Bathymetric Compilation. In Navassa, contours were
derived from NOAA's NGDC 2006 bathymetric data. These bathymetric data
(i.e., depth contours) are used, with other geographic or management
boundaries, to draw the boundaries of each specific area on the maps in
this final critical habitat designation.
Within the areas bounded by depth and species occurrence, we
evaluated available data on the essential feature. For substrate, we
used information from the NCCOS Benthic Habitat Mapping program, which
provides data and maps at http://products.coastalscience.noaa.gov/collections/benthic/default.aspx, summarized in the Coral Reef Data
Explorer at http://maps.coastalscience.noaa.gov/coralreef/#, and the
Unified Florida Reef Tract Map found at http://geodata.myfwc.com/datasets/6090f952e3ee4945b53979f18d5ac3a5_9. Using Geographic
Information System (GIS) software, we extracted all habitat
classifications that could be considered potential recruitment habitat,
including hardbottom and coral reef. The benthic habitat information
assisted in identifying any major gaps in the distribution of the
substrate essential feature. The data show that hard substrate is
unevenly distributed throughout the ranges of the species. However,
there are large areas where benthic habitat characterization data are
still lacking, particularly deeper than 99 ft (30 m). Because the
species occurs in these areas, we made the reasonable assumption that
the substrate feature does exist in those areas, though in unknown
quantities. The available data also represent a snapshot in time, while
the exact location of the habitat feature may change over time (e.g.,
natural sediment movement covering or exposing hard substrate).
There are areas within the geographical and depth ranges of the
species that contain natural hard substrates that, due to their
consistently disturbed nature, do not provide the quality of substrate
essential for the conservation of threatened corals. These disturbances
may be naturally occurring
[[Page 54040]]
or caused by human activities, as described below. While these areas
may provide hard substrate for coral settlement and growth over short
periods, the periodic nature of direct human disturbance renders them
poor habitat for coral growth and survival over time. These ``managed
areas,'' for the purposes of this final rule, are specific areas where
the substrate has been persistently disturbed by planned management
activities authorized by local, state, or Federal governmental entities
at the time of critical habitat designation, and expectations are that
the areas will continue to be periodically disturbed by such management
activities. Examples include, but are not necessarily limited to,
dredged navigation channels, vessel berths, and active anchorages.
These managed areas were not proposed for designation as critical
habitat, and they are not included in the final designations. GIS data
of the locations of some managed areas were available and extracted
from the maps of the specific areas being considered for critical
habitat designation. These data were not available for every managed
area; however, regardless of whether the managed area is extracted from
the maps depicting the specific areas being designated as critical
habitat, no ``managed areas'' are part of the specific areas that
contain the essential feature.
NMFS is aware that dredging may result in sedimentation impacts
beyond the actual dredge channel. Where these impacts are persistent,
expected to recur whenever the channel is dredged, and are of such a
level that the areas in question have already been made unsuitable for
coral, these persistently impacted areas are considered part of the
managed areas and are thus not part of the specific areas that contain
the essential feature.
The nearshore surf zones of Martin, Palm Beach, Broward, and Miami-
Dade Counties are also consistently disturbed by naturally-high
sediment movement, suspension, and deposition levels. Hard substrate
areas found within these nearshore surf zones are ephemeral in nature
and are frequently covered by sand, and the threatened coral species
have never been observed there. Thus, this area (water in depths from 0
ft to 6.5 ft (0 m to 2 m) offshore St. Lucie Inlet to Government Cut)
does not contain the essential feature and is not considered part of
the specific areas under consideration for critical habitat. The
shallow depth limit (i.e., inshore boundary) was identified based on
the lack of these or any reef building corals occurring in this zone,
indicating conditions are not suitable for their settlement and
recruitment into the population. These conditions do not exist in the
area south of Government Cut, nor in the nearshore zones around the
islands of Puerto Rico and the U.S. Virgin Islands. In these areas, the
hydrodynamics allow for the growth of some (e.g., Orbicella spp.) of
the threatened coral in the shallow depths.
Due to the ephemeral nature of conditions within the water column
and the various scales at which water quality data are collected, this
aspect of the essential feature is difficult to map at fine spatial or
temporal scales. However, annually-averaged plots of temperature,
aragonite saturation, nitrate, phosphate, and light, at relatively
large spatial scale (e.g., 1[deg] x 1[deg] grid) are available from
Guan et al. (2015), using 2009 data for some parameters, and updated
with newer data from the World Ocean Atlas (2013) for temperature and
nutrients. Those maps indicate that conditions that support coral reef
growth, and thus coral demographic functions, occur throughout the
specific areas under consideration.
Based on the available data, we identified 28 mostly-overlapping
specific areas that contain the essential feature. The specific areas,
or units, can generally be grouped as the: (1) Florida units, (2)
Puerto Rico units, (3) St. Thomas/St. John units (STT/STJ), (4) St.
Croix units, (5) Navassa units, and (6) FGB units. Within each group of
units, each species has its own unique unit that is specific to its
geographic and depth distributions. Therefore, within a group there are
five mostly-overlapping units--one for each species. The exception is
that there are only three completely-overlapping units in the FGB
group, because only the three species of Orbicella occur there. The
essential feature is unevenly distributed throughout these 28 units.
Within these units there exists a mosaic of habitats at relatively
small spatial scales, some of which naturally contain the essential
features (e.g., coral reefs) and some of which do not (e.g., seagrass
beds). Further, within these units, managed areas and naturally
disturbed areas, as described above, also exist. Due to the spatial
scale at which the essential feature exists interspersed with these
other habitats and disturbed areas, we are not able to more discretely
delineate the specific areas of critical habitat.
Unoccupied Critical Habitat Areas
ESA section 3(5)(A)(ii) defines critical habitat to include
specific areas outside the geographical area occupied by the species at
the time of listing if the areas are determined by the Secretary to be
essential for the conservation of the species.
In considering whether any unoccupied areas are essential to the
threatened coral species, we considered the nature of the threats to
the species and their geographic distributions. The threats to these
five corals are generally the same threats affecting coral reefs
throughout the world (e.g., climate change, fishing, and land-based
sources of pollution) and are fully described in the final listing rule
(79 FR 53852, September 10, 2014). Specifically, ocean warming,
disease, and ocean acidification are the three most significant threats
that will impact the potential for recovery of all the listed coral
species. Because the primary threats are global in nature, adapting to
changing conditions will be critical to the species' conservation and
recovery.
We issued guidance in June 2016 on the treatment of climate change
uncertainty in ESA decisions, which addresses critical habitat
specifically (https://www.fisheries.noaa.gov/national/endangered-species-conservation/endangered-species-act-guidance-policies-and-regulations). The guidance states that, when designating critical
habitat, NMFS will consider proactive designation of unoccupied habitat
as critical habitat when there are adequate data to support a
reasonable inference that the habitat is essential for the conservation
of the species because of the function(s) it is likely to serve as
climate changes. As noted above, we applied the 2019 regulations to
evaluate the appropriateness of designating unoccupied critical habitat
in the proposed rule. Those regulations state that we will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied would be inadequate
to ensure the conservation of the species (50 CFR 424.12(b)(2)).
However, as noted previously, on July 5, 2022, the United States
District Court for the Northern District of California issued an order
vacating the regulations finalized in 2019 (84 FR 44976, August 27,
2019), and this order was subsequently temporarily stayed on September
21, 2022, by the U.S Court of Appeals for the Ninth Circuit. Thus,
while the 2019 regulations are currently in effect and were applied in
this rulemaking, we also considered the pre-2019 regulations and the
climate change guidance to determine whether our conclusions would
differ. As explained below, we conclude that our determination with
respect to unoccupied areas would not have been any different. However,
because of the ongoing litigation related to the 2019
[[Page 54041]]
regulations, we also explain why application of the pre-2019
regulations results in the same conclusion.
All five corals occur in the Caribbean, an area predicted to have
more rapid and severe impacts from climate change as compared to other
tropical locations (van Hooidonk et al., 2014). Shifting into
previously unoccupied habitats that become more suitable as other parts
of their range become less suitable may be a strategy these corals
employ in the future to adapt to changing conditions. However, due to
the nature of the Caribbean basin, there is little opportunity for
range expansion. The only area of potential expansion is north up the
Florida coast. Several of the five coral species have different
northern limits to their current range, with Orbicella faveolata's
limit at St. Lucie Inlet, Martin County, Florida, being the farthest
north and at the limit of coral reef formation in Florida for these
species. A northern range expansion along Florida's coast beyond this
limit is unlikely due to lack of evidence of historical reef growth in
these areas under warmer climates. Further, northern expansion is
inhibited by hydrographic conditions (Walker and Gilliam, 2013). The
other corals could theoretically expand into the area between their
current northern extents to the limit of reef formation. However,
temperature is not likely the factor limiting occupation of those
areas, given the presence of other reef-building corals. Thus, there
are likely other non-climate-related factors limiting the northern
extent of the corals' ranges.
Because the occupied critical habitat we have identified includes
specific areas that extend throughout the historical and current range
of the listed species, we find that the designations are adequate to
provide for the conservation of the five corals. Further, there is no
basis to conclude that any specific unoccupied areas are essential to
the conservation of the five corals, as described above. Therefore,
applying either the 2019 regulations or pre-2019 regulations, we have
determined that it is not appropriate to designate any unoccupied areas
as critical habitat for the five corals.
Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or controlled by
the DoD, or designated for its use, that are subject to an INRMP
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a conservation
benefit to the species for which critical habitat is designated.
Pursuant to our regulations at 50 CFR 424.12(h) we consider the
following when determining whether such a benefit is provided:
(1) The extent of the area and features present;
(2) The type and frequency of use of the area by the species;
(3) The relevant elements of the INRMP in terms of management
objectives, activities covered, and best management practices, and the
certainty that the relevant elements will be implemented; and
(4) The degree to which the relevant elements of the INRMP will
protect the habitat from the types of effects that would be addressed
through a destruction-or-adverse-modification analysis.
NASKW is the only installation controlled by the DoD, specifically
the Department of the Navy (Navy), that coincides with any of the areas
meeting the definition of critical habitat for four of the listed coral
species. On September 21, 2015, the Navy requested in writing that the
areas covered by the 2014 INRMP for NASKW not be designated as critical
habitat, pursuant to ESA section 4(a)(3)(B)(i), and provided the INRMP
for our review.
The NASKW INRMP covers the lands and waters--generally out to 50
yards (45.7 m)--adjacent to NASKW, including several designated
restricted areas (see INRMP figures C-1 through C-14). The total area
of the waters covered by the INRMP that overlaps with areas identified
as critical habitat is approximately 800 acres (324 hectares). Within
this area, four of the threatened corals (D. cylindrus, O. annularis,
O. faveolata, and O. franksi) and the essential feature are present in
densities and proportions similar to those throughout the rest of the
nearshore habitat in the Florida Keys. The species use this area in the
same way that they do all areas identified as critical habitat--to
carry out all life functions. As detailed in Chapter 4 and Appendix C
of the INRMP, the plan provides benefits to the threatened corals and
existing Acropora critical habitat through the following NASKW broad
programs and activities: (1) erosion control--which will prevent
sediments from entering into the water; (2) Boca Chica Clean Marina
Designation--which eliminates or significantly reduces the release of
nutrients and contaminants; (3) stormwater quality improvements--which
prevent or reduce the amount of nutrients, sediments, and contaminants;
and (4) wastewater treatment--which reduces the release of nutrients
and contaminants consistent with Florida Surface Water Quality
Standards. Within these categories, there are 15 specific management
activities and projects that provide benefit to the corals and their
habitat (Table 4-2 of the INRMP). These types of best management
practices have been ongoing at NASKW since 1983 and are likely to
continue into the future. Further, the plan specifically provides
assurances that all NASKW staff have the authority and funding (subject
to appropriations) to implement the plan. The plan also provides
assurances that the conservation efforts will be effective through
annual reviews conducted by state and Federal natural resource
agencies. These activities provide a benefit to the species and the
identified essential feature in the critical habitat by reducing
sediment and nutrient discharges into nearshore waters, which addresses
some of the particular conservation and protection needs that critical
habitat would afford. These activities are similar to those that we
describe below as project modifications for avoiding or reducing
adverse effects to critical habitat. Therefore, were we to consult on
the activities in the INRMP that may affect critical habitat, we would
likely not require any project modifications based on best management
practices in the INRMP. Further, the INRMP includes provisions for
monitoring and evaluating conservation effectiveness, which will ensure
continued benefits to the species. Annual reviews of the INRMP for
2011-2015 found that the INRMP executions, including actions that
minimize or eliminate land-based sources of pollution, ``satisfied'' or
``more than satisfied'' conservation objectives. Based on these
considerations, we conclude the NASKW INRMP provides a conservation
benefit to the threatened corals. Therefore, pursuant to section
4(a)(3)(B)(i) of the ESA, we determined that the INRMP provides a
benefit to those threatened corals, and we are not designating critical
habitat within the boundaries covered by the INRMP.
Application of ESA Section 4(b)(2)
Section 4(b)(2) of the ESA requires that we consider the economic
impact, impact on national security, and any other relevant impact, of
designating any particular area as critical habitat. Additionally, the
Secretary has the discretion to consider excluding any particular area
from critical habitat if she determines, based upon the best scientific
and commercial data available, the benefits of exclusion (that is,
avoiding some or all of the impacts
[[Page 54042]]
that would result from designation) outweigh the benefits of
designation. The Secretary may not exclude an area from designation if
exclusion will result in the extinction of the species. Because the
authority to exclude is discretionary, exclusion is not required for
any particular area under any circumstances.
The ESA provides the Services with broad discretion in how to
consider impacts. (See, H.R. Rep. No. 95-1625, at 17, reprinted in 1978
U.S.C.C.A.N. 9453, 9467 (19780). Economics and any other relevant
impact shall be considered by the Secretary in setting the limits of
critical habitat for such a species. The Secretary is not required to
give economics or any other relevant impact predominant consideration
in his specification of critical habitat. The consideration and weight
given to any particular impact is completely within the Secretary's
discretion. Courts have noted the ESA does not contain requirements for
any particular methods or approaches. (See, e.g., Bldg. Indus. Ass'n of
the Bay Area et al. v. U.S. Dept. of Commerce et al., No. 13-15132 (9th
Cir., July 7, 2015), upholding district court's ruling that the ESA
does not require the agency to follow a specific methodology when
designating critical habitat under section 4(b)(2)). However, we
recognize that our determination about whether to exclude any
particular area from critical habitat is reviewable under the
Administrative Procedure Act. (See Weyerhaeuser Co. v. U.S. Fish &
Wildlife Service, 139 S. Ct. 361 (2018)). For this rule, we followed
the same basic approach to describing and evaluating impacts as we have
for several recent critical habitat rulemakings, as informed by our
Policy Regarding Implementation of Section 4(b)(2) of the ESA (81 FR
7226, February 11, 2016).
The following discussion of impacts is summarized from our Final
Information Report, which identifies the economic, national security,
and other relevant impacts that we projected would result from
including each of the specific areas in the critical habitat
designations. We considered these impacts when deciding whether to
exercise our discretion to propose excluding particular areas from the
designations. Both positive and negative impacts were identified and
considered (these terms are used interchangeably with benefits and
costs, respectively). Impacts were evaluated in quantitative terms
where feasible, but qualitative appraisals were used where that is more
appropriate to particular impacts or available information.
The primary impacts of a critical habitat designation result from
the ESA section 7(a)(2) requirement that Federal agencies ensure their
actions are not likely to result in the destruction or adverse
modification of critical habitat, and that they consult with NMFS in
fulfilling this requirement. Determining these impacts is complicated
by the fact that section 7(a)(2) also requires that Federal agencies
ensure their actions are not likely to jeopardize the species'
continued existence. One incremental impact of designation is the
extent to which Federal agencies modify their proposed actions to
ensure they are not likely to destroy or adversely modify the critical
habitat beyond any modifications they would make because of listing and
the requirement to avoid jeopardy to listed corals. When the same
modification would be required due to impacts to both the species and
critical habitat, there would be no additional or incremental impact
attributable to the critical habitat designation beyond the
administrative impact associated with conducting the critical habitat
analysis. Relevant, existing regulatory protections are referred to as
the ``baseline'' for the analysis and are discussed in the Final
Information Report. In this case, notable baseline protections include
the ESA listings of the threatened corals, and the existing critical
habitat for elkhorn and staghorn corals (73 FR 72210, November 26,
2008).
The Final Information Report describes the projected future Federal
activities that would trigger section 7 consultation requirements if
they are implemented in the future, because they may affect the
essential feature and consequently may result in economic costs or
negative impacts. The report also identifies the potential national
security and other relevant impacts that may arise due to the critical
habitat designations, such as positive impacts that may arise from
conservation of the species and its habitat, state and local
protections that may be triggered as a result of designation, and
education of the public to the importance of an area for species
conservation.
Economic Impacts
Economic impacts of the critical habitat designations result
through implementation of section 7 of the ESA in consultations with
Federal agencies to ensure their proposed actions are not likely to
destroy or adversely modify critical habitat. The economic impacts of
consultation may include both administrative and project modification
costs; economic impacts that may be associated with the conservation
benefits resulting from consultation are described later. We conducted
an analysis of the economic impacts of designating particular areas to
the relevant economic or geopolitical areas (e.g., Florida county,
Puerto Rico-Metro, USVI island) to assist in projecting the extent to
which discrete areas may be impacted.
We updated the economic impact analysis after publication of the
proposed rule to include the most current information available;
however, this did not alter the critical habitat designations being
finalized in this rule. The framework of the updated economic impact
analysis remains the same as in the Draft Information Report. To
identify the types and geographic distribution of activities that may
trigger section 7 consultation for the five corals' critical habitat,
we first reviewed section 7 consultation history from 2010 to 2020 for
activities consulted on in the areas being designated as critical
habitat for the five corals. Of these, the consultation history
included 4 programmatic, 41 formal, and 341 informal consultations that
fall within the boundaries of and may affect the final critical habitat
for the 5 corals. In particular, we reviewed the historical formal
consultations that may affect the final critical habitat area for the
five corals in detail to assist in understanding the impacts the
activities may have on the final critical habitat, and potential
project modifications. In addition to reviewing the consultation
history, we conducted targeted outreach to key stakeholders and Federal
agencies, including the U.S. Army Corps of Engineers (USACE), and state
and local permitting agencies to identify activities potentially
subject to consultation. Outreach included interviews with the Florida
Department of Environmental Protection (FLDEP), Puerto Rico Department
of Natural and Environmental Resources (DNER), and USVI Department of
Planning and Natural Resources (DPNR), Office of National Marine
Sanctuaries, as well as county planning agencies.
Based on this information, the types of activities that have the
potential to affect the essential features for the five corals and
involve a Federal nexus include the following (in order of the most
frequently occurring within critical habitat units):
Coastal and In-water Construction (e.g., docks, seawalls,
piers, marinas, port expansions, anchorages, pipelines/cables, bridge
repairs, aids to navigation, etc.).
Channel Dredging (maintenance dredging of existing
channels, new channel dredging, and offshore disposal of dredged
material).
[[Page 54043]]
Beach Nourishment/Shoreline Protection (placement of sand
onto eroding beaches from onshore or offshore borrow sites).
Water Quality Management (revision of national and state
water quality standards, issuance of National Pollutant Discharge
Elimination System (NPDES) permits and Total Maximum daily load (TMDL)
standards, registrations of pesticides).
Protected Area Management (development of management plans
for national parks, marine sanctuaries, wildlife refuges, etc.).
Fishery Management (development of fishery management
plans).
Aquaculture (development of aquaculture facilities).
Military Activities (all activities undertaken by the
Department of Defense, such as training exercises).
Oil & Gas and Renewable Energy Development (development of
oil, gas, or renewable energy, such as wind power, in the marine
environment). Specifically, the Bureau of Ocean Energy Management
recently gained authority to conduct wind leasing activities in waters
offshore U.S. Territories, but where such developments may occur
remains uncertain.
The vast majority (approximately 88 percent) of historical
consultations occurring within the critical habitat areas were
informal. The limited subset of formal and programmatic consultations
(45 actions) was primarily associated with construction activities,
beach nourishment/shoreline stabilization, and fishery management
activities. Activities for which formal and programmatic consultations
were conducted were all located in areas less than 30 meters deep
(i.e., within already designated Acropora critical habitat), except for
fishery management plans, which were relevant to all depths. Activities
were distributed across most of the designated critical habitat units.
As discussed in more detail in our Final Information Report, all
categories of activities identified as having the potential to affect
the essential feature also have the potential to affect the threatened
Caribbean corals. To estimate the economic impacts of critical habitat
designation, our analysis compares the state of the world with and
without the designation of critical habitat for the five corals. The
``without critical habitat'' scenario represents the baseline for the
analysis, considering protections already afforded the critical habitat
as a result of the listing of the five corals as threatened species and
as a result of other Federal, state, and local regulations or
protections, notably the previous designation of critical habitat for
the two Caribbean acroporids. The ``with critical habitat'' scenario
describes the state of the world with the critical habitat
designations. The incremental impacts that will be associated
specifically with these critical habitat designations are the
difference between the two scenarios. Baseline protections exist in
large areas proposed for designation; however, there is uncertainty as
to the degree of protection that these protections provide. In
particular:
The five corals are present in each of the critical
habitat areas, and are already expected to receive significant
protections related to the listing of the species under the ESA that
may also protect the critical habitat. However, there is uncertainty
regarding whether a particular species may be present within a
particular project site, due to their patchy distribution throughout
their habitat.
The 2008 Acropora critical habitat designation overlaps
significantly with the specific areas under consideration, and the
overlap includes the areas where the vast majority of projects and
activities potentially affected are projected to occur. The existing
Acropora critical habitat designation shares the substrate aspect of
the essential feature with this designation for the five corals, but
not the water quality components. The activities that may affect the
critical habitat water column feature are the same as those that would
affect the Acropora critical habitat substrate feature, with the
exception of activities that would increase water temperature.
Incremental impacts result from changes in the management of
projects and activities, above and beyond those changes resulting from
existing required or voluntary conservation efforts undertaken due to
other Federal, state, and local regulations or guidelines (baseline
requirements). The added administrative costs of considering critical
habitat in section 7 consultation and the additional impacts of
implementing conservation efforts (i.e., reasonable and prudent
alternatives in the case of an adverse modification finding) resulting
from the designation of critical habitat are the direct, incremental
compliance costs of designating critical habitat.
Designation of critical habitat for the five coral species is
unlikely to result in any new section 7 consultations. Given the
protections afforded through the listing of the five corals, and the
fact that the critical habitat identified for these species overlaps,
in part, with Acropora critical habitat, section 7 consultations are
already likely to occur for activities with a Federal nexus throughout
the critical habitat areas. However, there may be incremental costs
associated with those consultations as a result of administrative and
project modification costs.
Significant uncertainty exists with respect to the levels and
locations of future projects and activities that may require section 7
consultation considering critical habitat for the five corals. Absent
better information, our analysis bases forecasts of future section 7
consultations on historical information. This may overstate impacts to
the extent NMFS handles more consultations on a programmatic basis in
the future, or it may understate impacts if more formal consultations
are required as a result of critical habitat designation. However, this
analysis provides a measure of costs likely to occur in a given area,
based on the best information available.
While the historical consultation rate (see Table 1) is likely to
be an imperfect predictor of the number of future actions, the
designation of critical habitat for the five corals is not expected to
result in any new section 7 consultations that would not have already
been expected to occur absent designation (i.e., triggered solely by
the designation of critical habitat). This is because, given the
listing of the five corals, and the fact that the final critical
habitat overlaps with other listed species (e.g., green, hawksbill,
leatherback, and loggerhead sea turtles) and critical habitats where
most activities are occurring, section 7 consultations are already
likely to occur for activities with a Federal nexus throughout the
final critical habitat. However, the need to evaluate impacts to the
final critical habitat in future consultations will add an incremental
administrative burden in consultations in areas outside of designated
Acropora critical habitat and consultations that affect water
temperature.
[[Page 54044]]
Table 1--Forecast Incremental Section 7 Consultations by Unit and Consultation Type
[2022-2031]
----------------------------------------------------------------------------------------------------------------
Programmatic Formal Informal
Unit consultations consultations consultations Total
----------------------------------------------------------------------------------------------------------------
Florida......................................... 1.0 0.5 13.0 14.5
Puerto Rico..................................... 0.0 1.0 15.0 16.0
STT/STJ......................................... 0.0 0.0 2.0 2.0
St. Croix....................................... 0.0 0.0 1.0 1.0
Navassa......................................... 0.0 0.0 0.0 0.0
FGB............................................. 1.0 0.5 0.0 1.5
---------------------------------------------------------------
Total....................................... 2.0 2.0 31.0 35.0
---------------------------------------------------------------
% of Total...................................... 6% 6% 88% 100%
----------------------------------------------------------------------------------------------------------------
The administrative effort required to address adverse effects to
the critical habitat is assumed to be the same, on average, across
activities regardless of the type of activity (e.g., beach nourishment
versus channel dredging). Informal consultations are expected to
require comparatively low levels of administrative effort, while formal
and programmatic consultations are expected to require comparatively
higher levels of administrative effort. For all formal and informal
consultations, we anticipate that incremental administrative costs will
be incurred by NMFS, a Federal action agency, and potentially a third
party (e.g., applicant, permittee). For programmatic consultations, we
anticipate that costs will be incurred by NMFS and a Federal action
agency. Incremental administrative costs per consultation effort are
expected on average to be $9,800 for programmatic, $5,300 for formal
consultations, and $2,600 for informal consultations. We estimate the
incremental administrative costs of section 7 consultation by applying
these per consultation costs to the forecast number of consultations.
We anticipate that there will be 2 programmatic consultations, 2 formal
consultations, and 31 informal consultations over a 10-year period,
which will require incremental administrative effort. Incremental
administrative costs are expected to total approximately $76,000 over
the next 10 years, an annualized cost of $11,000 (discounted at 7
percent). The incremental administrative costs are driven by future
consultations that will require new analysis for the five corals
critical habitat in areas outside Acropora critical habitat (i.e.,
deeper than 30 m and in some discrete geographies).
To evaluate incremental project modification costs, information is
required regarding the extent to which the forecast activities that may
require project modifications are expected to occur outside of those
areas subject to sufficient baseline protection (i.e., outside of
Acropora critical habitat, and where the five corals are not present).
The project modification recommendations that would result from the
listing of the species (i.e., to avoid jeopardy to the species) are
likely to be similar to project modifications that would be undertaken
to avoid adverse modification of critical habitat. Thus, incremental
project modifications would only be expected to occur where the species
are not present. However, information is not available to determine
where the five corals may be identified as part of a project or
activity survey within the boundaries of the final critical habitat.
Treatment of this uncertainty is discussed below. As discussed earlier,
Acropora critical habitat likely provides sufficient protection for the
five corals critical habitat, with the exception of projects with
temperature effects. As such, our analysis of incremental project
modification costs focuses on the areas of critical habitat for the
five corals that do not overlap Acropora corals critical habitat and
those future consultations on federal actions that may result in
increased water temperature. Overall, 28 consultations with potential
project modifications and associated costs are projected to occur in
areas outside of or not affect Acropora critical habitat (e.g.,
consultations with temperature effects) over the next 10 years.
We recognize that uncertainty exists regarding whether, where, and
how frequently surveys will identify the presence of the five coral
species. Should one of the listed corals be present within the area of
a future project that may also affect critical habitat, the costs of
project modifications would not be attributable to the critical
habitat. To reflect the uncertainty with respect to the likelihood that
these consultations will require additional project modifications due
to impacts to new critical habitat, we estimated a range of costs. The
low-end estimate assumes that no incremental project modifications will
occur because any project modifications would be required to address
impacts to one of the five corals or to existing Acropora critical
habitat in a project area. The high-end estimate reflects the
conservative assumption that all the project modifications would be
incremental because none of the five corals are present and the action
would not affect existing Acropora critical habitat. Taking into
consideration the types and cost estimates of the project modifications
that may be required for predicted consultations identified, we
estimate the high-end incremental costs of $690,000 over 10 years for
an annualized cost of $87,000 (discounted at 7 percent). Similar to the
projected administrative costs, the majority of the project
modification costs are associated with coastal and in-water
construction.
Total incremental costs resulting from the five corals' critical
habitat are estimated to range from $76,000 to $690,000 over 10 years,
or an annualized cost of $11,000 to $198,000 (discounted at 7 percent).
The low-end costs are a result of the increased administrative effort
to analyze impacts to the final critical habitat in future
consultations that would not have affected Acropora critical habitat
(i.e., in areas outside the boundaries). The high-end costs are a
result of the increased administrative effort (i.e., low-end costs)
plus the incremental project modification costs. Incremental project
modification costs are a result of future consultations that would not
have had effects on Acropora critical habitat. The high-end costs also
assume that the project modifications would be solely due to the final
critical habitat. However, this is likely an overestimate because an
undetermined number of future consultations will have the same
[[Page 54045]]
project modification as a result of avoiding adverse effects to one or
more of the five corals. Nearly 90 percent of total high-end
incremental costs result from project modifications, primarily for
coastal and in-water construction and beach nourishment activities.
Table 2 and Table 3 present total low and high-end incremental
costs by activity type, respectively. Coastal and in-water construction
accounts for the highest costs, ranging from $42,000 to $530,000 over
ten years (discounted at 7 percent). The high-end projection represents
approximately 78 percent of total costs.
[[Page 54046]]
Table 2--Low-End Total Incremental Costs (Administrative) by Activity, 2022-2031
[$2021, 7 percent discount rate]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Coastal & Water Coastal & Water
in-water Beach Channel quality Energy Military in-water Beach Channel quality Energy Military
Unit const. nourishment dredging mgmt. dev. (NAVY) Total const. nourishment dredging mgmt. dev. (NAVY) Total
(USACE) (USACE) (USACE) (EPA) (BOEM) (USACE) (USACE) (USACE) (EPA) (BOEM)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FL...................................... $13,400 $6,600 $0 $6,300 $1,700 $3,300 $31,700 $1,900 $950 $0 $890 $240 $470 $4,400
PR...................................... 23,000 1,700 5,000 1,700 0 0 32,000 3,300 240 720 240 0 0 4,500
STT/STJ................................. 3,300 0 0 0 0 0 3,300 470 0 0 0 0 0 470
STX..................................... 1,700 0 0 0 0 0 1,700 240 0 0 0 0 0 240
Nav..................................... 0 0 0 0 0 0 0 0 0 0 0 0 0 0
FGB..................................... 0 0 0 0 7,900 0 7,900 0 0 0 0 1,100 0 1,100
-------------------------------------------------------------------------------------------------------------------------------------------------------
Total............................... 42,000 8,300 5,000 7,900 9,600 3,300 76,000 5,900 1,200 720 1,100 1,400 470 11,000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The estimates may not sum to the totals reported due to rounding.
Table 3--High-End Total Incremental Costs (Administrative and Project Modification) by Activity, 2022-2031
[$2021, 7 percent discount rate]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Coastal & Water Coastal & Water
in-water Beach Channel quality Energy Military in-water Beach Channel quality Energy Military
Unit const. nourishment dredging mgmt. dev. (NAVY) Total Const. nourishment dredging mgmt. dev. (NAVY) Total
(USACE) (USACE) (USACE) (EPA) (BOEM) (USACE) (USACE) (USACE) (EPA) (BOEM)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
FL...................................... $170,000 $85,000 $0 $6,300 $1,700 $3,300 $270,000 $24,000 $12,000 $0 $890 $240 $470 $38,000
PR...................................... 300,000 21,000 25,000 1,700 0 0 350,000 43,000 3,000 3,500 240 0 0 49,000
STT/STJ................................. 43,000 0 0 0 0 0 43,000 6,100 0 0 0 0 0 6,100
STX..................................... 21,000 0 0 0 0 0 21,000 3,000 0 0 0 0 0 3,000
Nav..................................... 0 0 0 0 0 0 0 0 0 0 0 0 0 0
FGB..................................... 0 0 0 0 7,900 0 7,900 0 0 0 0 1,100 0 1,100
-------------------------------------------------------------------------------------------------------------------------------------------------------
Total............................... 530,000 110,000 25,000 7,900 9,600 3,300 690,000 76,000 15,000 3,500 1,100 1,400 470 98,000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The estimates may not sum to the totals reported due to rounding.
[[Page 54047]]
National Security Impacts
Our critical habitat impacts analyses recognize that impacts to
national security result only if a designation would trigger future ESA
section 7 consultations because a proposed military activity ``may
affect'' the critical habitat. Anticipated interference with mission-
essential training or testing or unit readiness, through the additional
commitment of resources to an adverse modification analysis and
expected requirements to modify the action to prevent adverse
modification of critical habitat, has been identified as an impact of
critical habitat designations. Our impacts analyses also recognize that
whether national security impacts result from the designation depends
on whether future consultations would be required under the jeopardy
standard, due to the coral being present, regardless of the critical
habitat designation, and whether the designation would add new burdens
beyond those related to the consultation on effects to the corals.
As described previously, we identified DoD military operations as a
category of activity that has the potential to affect the essential
feature of the critical habitat identified for the five corals.
However, most of the actions we have consulted on in the past would not
result in incremental impacts in the future, because the consultations
would be required to address impacts to either the five corals or the
substrate feature of Acropora critical habitat. Based on our review of
historical consultations, only those activities that would be conducted
in the South Florida Ocean Measuring Facility operated by the Navy near
Dania, Florida would involve incremental impacts due to the critical
habitat designations, and thus only consultations on naval activities
in this particular area could result in national security impacts.
In 2015, we requested the DoD provide us with information on
military activities that may affect the proposed critical habitat and
whether the proposed critical habitat would have a national security
impact due to the requirement to consult on those activities. The Navy
responded that activities associated with the designated restricted
area managed by the South Florida Ocean Measuring Facility (SFOMF-RA),
defined in 33 CFR 334.580, and located offshore of Dania, Florida, may
affect the critical habitat. This assertion is supported by two
previous consultations on cable-laying activities in the SFOMF-RA over
the past 10 years.
The SFOMF-RA contains underwater cables and benthic sensor systems
that enable real-time data acquisition from Navy sensor systems used in
Navy exercises. The previous consultations, in 2011 and 2013, were for
the installation of new cables. These consultations did not affect any
coral species, because the cables were routed to avoid the corals.
These consultations did not consider effects to Acropora critical
habitat because the area was excluded from the 2008 Acropora critical
habitat designation based on national security impacts. However,
installation of the cables would have affected the substrate feature.
Because the installation of new cables in the future may affect the
critical habitat substrate feature, and the area was excluded from
Acropora critical habitat, an incremental impact to the Navy due to
critical habitat designation for the five coral species is probable.
The impact would result from the added administrative effort to
consider impacts to the coral critical habitat and project
modifications to avoid adverse effects to the substrate aspect of the
essential feature.
The Navy has conducted extensive benthic surveys in the SFOMF-RA
and has mapped the locations of all listed corals. Thus, they would be
able to avoid impacts to the listed corals from the installation of new
cables. However, if the cables were laid over the critical habitat's
substrate feature, the cable would make the substrate unavailable for
settlement and recruitment. Thus, we would require consultation to
evaluate impacts of this adverse effect to the essential feature. The
administrative costs and project modification costs would be
incremental impacts of the critical habitat. The Navy concluded that
critical habitat designations at the SFOMF-RA would likely impact
national security by diminishing military readiness through the
requirement to consult on their activities within critical habitat
beyond the requirement to consult on the threatened corals and through
any additional project modifications.
In 2019, the Navy requested the exclusion of the Federal Danger
Zones and Restricted Areas off NAS Key West designated in 33 CFR
334.610 and 33 CFR 334.620 in Navy's Key West Operations Area. However,
at the time of the proposed rule, we were unable to make a
determination and continued discussion with the Navy to identify the
potential national security impacts in these areas.
In March 2021, the Navy provided a final report titled: Atlantic
Fleet Training and Testing Activities, Caribbean Coral Critical Habitat
Conference Package to assist in evaluating the impact of their
activities that may affect the proposed critical habitat. With the
exception of those activities, which occur on SFOMF-RA, based on the
Navy's description and locations of the activities, standard operating
procedures, and mitigation measures, we do not expect that the Navy
would have to change their activities through project modifications in
section 7 consultation based on the designation of critical habitat for
the five corals.
Other Relevant Impacts
We identified two broad categories of other relevant impacts of
this critical habitat designation: conservation benefits, both to the
species and to society, and impacts on governmental or private entities
that are implementing existing management plans that provide benefits
to the listed species. Our Final Impacts Analysis discusses
conservation benefits of designating the 28 specific areas, and the
benefits of conserving the 5 corals to society, in both ecological and
economic metrics.
Conservation Benefits
The primary benefit of critical habitat designation is the
contribution to the conservation and recovery of the five corals. That
is, in protecting the features essential to the conservation of the
species, critical habitat directly contributes to the conservation and
recovery of the species. Our analysis contemplated three broad
categories of benefits of the critical habitat designation:
(1) Increased probability of conservation and recovery of the five
corals: The most direct benefits of the critical habitat designation
stem from the enhanced probability of conservation and recovery of the
five corals. From an economics perspective, the appropriate measure of
the value of this benefit is people's ``willingness-to-pay'' for the
incremental change. While the existing economics literature is
insufficient to provide a quantitative estimate of the extent to which
people value incremental changes in recovery potential, the literature
does provide evidence that people have a positive preference for listed
species conservation, even beyond any direct (e.g., recreation such as
viewing the species while snorkeling or diving) or indirect (reef
fishing that is supported by the presence of healthy reef ecosystems)
use for the species.
(2) Ecosystem service benefits of coral reef conservation, in
general: Overall, coral reef ecosystems, including those
[[Page 54048]]
comprising populations of the five corals, provide important ecosystem
services of value to individuals, communities, and economies. These
include recreational opportunities (and associated tourism spending in
the regional economy), habitat and nursery functions for recreationally
and commercially valuable fish species, shoreline protection in the
form of wave attenuation and reduced beach erosion, and climate
stabilization via carbon sequestration. Efforts to conserve the five
corals also benefit the broader reef ecosystems, thereby preserving or
improving these ecosystem services.
Critical habitat most directly influences the recovery potential of
the species and protects coral reef ecosystem services by the
protections afforded under section 7 of the ESA. That is, these
benefits stem from implementation of project modifications undertaken
to avoid destruction and adverse modification of critical habitat.
Accordingly, critical habitat designation is most likely to generate
benefits discussed in those areas expected to be subject to additional
recommendations for project modifications (above and beyond any
conservation measures that may be implemented in the baseline due to
the listing status of the species or for other reasons).
(3) Education and Awareness Benefits: There is the potential for
education and awareness benefits arising from the critical habitat
designations. This potential stems from two sources: (1) entities that
engage in section 7 consultation and (2) members of the general public
interested in coral conservation. The former potential exists from
parties who alter their activities to benefit the species or essential
feature because they were made aware of the critical habitat
designations through the section 7 consultation process. The latter may
engage in similar efforts because they learned of the critical habitat
designations through outreach materials. For example, we have been
contacted by diver groups in the Florida Keys who are specifically
seeking the two Caribbean acroporid corals on dives and reporting those
locations to NMFS, thus assisting us in planning and implementing coral
conservation and management activities. In our experience, designation
raises the public's awareness that there are special considerations to
be taken within the area.
Similarly, state and local governments may be prompted to enact
laws or rules to complement the critical habitat designations and
benefit the listed corals. Those laws would likely result in additional
impacts of the designations. However, it is impossible to quantify the
beneficial effects of the awareness gained through, or the secondary
impacts from state and local regulations resulting from, the critical
habitat designations.
Impacts to Governmental and Private Entities With Existing Management
Plans Benefitting the Essential Features
Among other relevant impacts of the critical habitat designations
we considered under section 4(b)(2) of the ESA are impacts on
relationships with, or the efforts of, private and public entities
involved in management or conservation efforts benefiting listed
species. In some cases, the additional regulatory layer of a
designation could negatively impact the conservation benefits provided
to the listed species by existing or proposed management or
conservation plans.
Existing management plans and associated regulations protect
existing coral reef resources, but they do not specifically protect the
substrate and water quality features for purposes of increasing listed
coral abundance and eventual recovery. Thus, the five corals critical
habitat designation would provide unique benefits for the corals,
beyond the benefits provided by existing management plans. However, the
identified areas contain not only the essential features, but also one
or more of the five corals, and overlap with Acropora critical habitat.
In addition, consultations related to protected area management over
the next 10 years are not expected to result in incremental project
modifications as these protected areas generally provide specific
regulations to protect coral reefs. Hence, any section 7 impacts will
likely be limited to administrative costs. Because we identified that
resource management was a category of activities that may affect both
the five corals and the critical habitat, these impacts would not be
incremental. In addition, we found no evidence that relationships would
be negatively affected or that negative impacts to other agencies'
ability to provide for the conservation of the listed coral species
would result from designation.
Discretionary Exclusions Under Section 4(b)(2)
We are not exercising our discretion to exclude areas based on
economic impacts. Our conservative identification of the highest
potential incremental economic impacts indicates that any such impacts
will be relatively small--$11,000 to $98,000 annually. The incremental
costs are split between the incremental administrative effort and
incremental project modification costs for the relatively few (about
35) consultations over the next 10 years. Further, the analysis
indicates that there is no particular area within the units that meet
the definition of critical habitat where economic impacts would be
particularly high or concentrated as compared to the human population
and level of activities in each unit.
We are excluding one particular area on the basis of national
security impacts. National security impacts would occur in the
designated restricted area managed by the SFOMF-RA offshore Dania
Beach, Florida, which coincides with all five threatened corals'
proposed critical habitats. The area does support the essential feature
and contains the five threatened Caribbean corals. The Navy concluded
that critical habitat designations at the SFOMF-RA would likely impact
national security by diminishing military readiness through the
requirement to consult on their activities within critical habitat
beyond the requirement to consult on the threatened corals and
potentially result in additional project modifications. This is likely
because the Navy, which has comprehensive maps of all threatened coral
locations within the SFOMF-RA, would need to avoid impacts to the
substrate aspect of the essential feature in addition to avoiding
impacts to the listed corals themselves, should any new cables or
sensors be installed. The Navy stated that impediments to SFOMF
operations would adversely impact the Navy's ability to maintain an
underwater stealth advantage of future classes of ships and submarines
and impede our Nation's ability to address emergent foreign threats.
The Navy stated that the critical habitat designations would hinder its
ability to continue carrying out the unique submarine training provided
by this facility, as no other U.S. facility has the capability to make
the cable-to-shore measurements enabled at the SFOMF that satisfy its
requirement to assure the newest submarines are not vulnerable to
electromagnetic detection. The Navy advised the loss of this capability
would directly impact new construction of submarines and submarines
already in the fleet that are being readied for deployment. Therefore,
SFOMF's activities are necessary to maintain proficiency in mission-
essential tactics for winning wars, deterring aggression, and
maintaining freedom of the seas. The excluded area comprises a very
small portion of the areas that meet the definition of critical
habitat. Navy regulations prohibit anchoring, trawling,
[[Page 54049]]
dredging, or attaching any object within the area; thus, the corals and
their habitat will be protected from these threats. Further, the corals
and their habitat will still be protected through ESA section 7
consultations that prohibit jeopardizing the species' continued
existence and require modifications to minimize the impacts of
incidental take. Further, we do not foresee other Federal activities
that might adversely impact critical habitat that would be exempted
from future consultation requirements due to this exclusion, since this
area is under exclusive military control. Therefore, in our judgment,
the benefit of designating the particular area of the SFOMF-RA as
critical habitat is outweighed by the benefit of avoiding the impacts
to national security the Navy would experience if it were required to
consult based on critical habitat. Given the small area (5.5 mi\2\
(14.2 km\2\)) that meets the definition of critical habitat encompassed
by this area, we conclude that exclusion of this area will not result
in extinction of any of the five threatened Caribbean corals.
We are not excluding any other areas based on national security
impacts. While the Navy requested the Federal Danger Zones and
Restricted Areas off NAS Key West be excluded, we conclude it is
unlikely that changes to the activities conducted in these areas would
be required through project modifications because of section 7
consultation.
We are not excluding any particular area based on other relevant
impacts. Other relevant impacts include conservation benefits of the
designations, both to the species and to society. Because the feature
that forms the basis of the critical habitat designations is essential
to the conservation of the five threatened Caribbean corals, the
protection of critical habitat from destruction or adverse modification
may at minimum prevent loss of the benefits currently provided by the
species and their habitat and may contribute to an increase in the
benefits of these species to society in the future. While we cannot
quantify or monetize the benefits, we conclude they are not negligible
and would be an incremental benefit of these designations.
Critical Habitat Designations
Our critical habitat regulations state that we will show critical
habitat on a map instead of using lengthy textual descriptions to
describe critical habitat boundaries, with additional information
discussed in the preamble of the rulemaking and in agency records (50
CFR 424.12(c)). When several habitats, each satisfying the requirements
for designation as critical habitat, are located in proximity to one
another, an inclusive area may be designated as critical habitat (50
CFR 424.12(d)).
The habitat containing the essential feature and that may require
special management considerations or protection is marine habitat of
particular depths for each species in the Atlantic Ocean, Gulf of
Mexico, and Caribbean Sea. The boundaries of each specific area for
each coral species are determined by the species' commonly occupied
minimum and maximum depth ranges (i.e., depth contour) within their
specific geographic distributions, as described in the literature and
observed in monitoring data. All depths are relative to mean low water
(MLW). Because the quality of the available GIS data varies based on
collection method, resolution, and processing, the critical habitat
boundaries are defined by the maps in combination with the textual
information included in the final regulation. This textual information
clarifies and refines the location and boundaries of each area. In
particular, the textual information clarifies the boundaries of the
critical habitat for each coral species based on a specific water-depth
range. The textual information also lists certain particular areas that
are not included in the critical habitat.
Critical Habitat Unit Descriptions
Table 4 describes each unit of critical habitat for each species.
It contains the geographic extent and water depths of all occupied
areas, which generally form the boundaries of each unit.
Table 4--Description and Extent of Each Critical Habitat Unit by Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
Critical habitat unit Area (approx.
Species name Location Geographic extent Water depth range rounded)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Orbicella annularis.............. OANN-1................. Florida................. Lake Worth Inlet, Palm 2-20m (6.5-65.6 ft) 7,000 km\2\
Florida................. Beach County to 0.5-20m (1.6-65.6 (2,700mi\2\)
Government Cut, Miami- ft).
Dade County.
Government Cut, Miami-
Dade County to Dry
Tortugas.
OANN-2................. Puerto Rico............. All islands............. 0.5-20m (1.6-65.6 2,100 km\2\
ft). (830mi\2\)
OANN-3................. USVI.................... All islands of St. 0.5-20m (1.6-65.6 100 km\2\ (40mi\2\)
Thomas and St. John. ft).
OANN-4................. USVI.................... All islands of St. Croix 0.5-20m (1.6-65.6 230 km\2\ (89
ft). mi\2\)
OANN-5................. Navassa................. Navassa Island.......... 0.5-20m (1.6-65.6 0.13 km\2\ (0.05
ft). mi\2\)
OANN-6................. FGB..................... East Flower Garden Bank 16-90m (53-295 ft). 88 km\2\ (34 mi\2\)
and West Flower Garden
Bank.
Orbicella faveolata.............. OFAV-1................. Florida................. St. Lucie Inlet, Martin 2-40m (6.5-131 ft). 9,600 km\2\
Florida................. County to Government 0.5-40m (1.6-131 (3,700mi\2\)
Cut, Miami-Dade County. ft).
Government Cut, Miami-
Dade County to Dry
Tortugas.
OFAV-2................. Puerto Rico............. All islands of Puerto 0.5-90m (1.6-295 5,500 km\2\
Rico. ft). (2,100mi\2\)
OANN-3................. USVI.................... All islands of St. 0.5-90m (1.6-295 1,400 km\2\
Thomas and St. John. ft). (520mi\2\)
OFAV-4................. USVI.................... All islands of St. Croix 0.5-90m (1.6-295 360 km\2\
ft). (140mi\2\)
OFAV-5................. Navassa................. Navassa Island.......... 0.5-90m (1.6-295 11 km\2\ (4 mi\2\)
ft).
OFAV-6................. FGB..................... East Flower Garden Bank 16-90m (53-295 ft). 88 km\2\ (34 mi\2\)
and West Flower Garden
Bank.
Orbicella franksi................ OFRA-1................. Florida................. St. Lucie Inlet, Martin 2-40m (6.5-131 ft). 9,200 km\2\
Florida................. County to Government 0.5-40m (1.6-131 (3,600mi\2\)
Cut, Miami-Dade County. ft).
Government Cut, Miami-
Dade County to Dry
Tortugas.
OFRA-2................. Puerto Rico............. All islands of Puerto 0.5-90m (1.6-295 5,500 km\2\
Rico. ft). (2,100mi\2\)
OFRA-3................. USVI.................... All islands of St. 0.5-90m (1.6-295 1,400 km\2\
Thomas and St. John. ft). (520mi\2\)
OFRA-4................. USVI.................... All islands of St. Croix 0.5-90m (1.6-295 360 km\2\
ft). (140mi\2\)
OFRA-5................. Navassa................. Navassa Island.......... 0.5-90m (1.6-295 11 km\2\ (4 mi\2\)
ft).
OFRA-6................. FGB..................... East Flower Garden Bank 16-90m (53-295 ft). 88 km\2\ (34 mi\2\)
and West Flower Garden
Bank.
[[Page 54050]]
Dendrogyra cylindrus............. DCYL-1................. Florida................. Lake Worth Inlet, Palm 2-25m (6.5-82 ft).. 4,300 km\2\
Florida................. Beach County to 1-25m (3.3-82 ft).. (1,700mi\2\)
Government Cut, Miami-
Dade County.
Government Cut, Miami-
Dade County to Dry
Tortugas.
DCYL-2................. Puerto Rico............. All islands............. 1-25m (3.3-82 ft).. 2,800 km\2\
(1,100mi\2\)
DCYL-3................. USVI.................... All islands of St. 1-25m (3.3-82 ft)). 170 km\2\ (65mi\2\)
Thomas and St. John.
DCYL-4................. USVI.................... All islands of St. Croix 1-25m (3.3-82 ft).. 300 km\2\
(120mi\2\)
DCYL-5................. Navassa................. Navassa Island.......... 1-25m (3.3-82 ft)). 0.5 km\2\
(0.2mi\2\)
Mycetophyllia ferox.............. MFER-1................. Florida................. Broward County to Dry 5-40m (16.4-131 ft) 4,400 km\2\
Tortugas. (1.700mi\2\)
MFER-2................. Puerto Rico............. All islands of Puerto 5-90m (16.4-295 ft) 5,000 km\2\
Rico. (1,900mi\2\)
MFER-3................. USVI.................... All islands of St. 5-90m (16.4-295 ft) 1,300 km\2\
Thomas and St. John. (510mi\2\)
MFER-4................. USVI.................... All islands of St. Croix 5-90m (16.4-295 ft) 310 km\2\
(120mi\2\)
MFER-5................. Navassa................. Navassa Island.......... 5-90m (16.4-295 ft) 11 km\2\ (4mi\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Effects of Critical Habitat Designations
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to ensure that any action authorized, funded, or carried out by
the agency is not likely to jeopardize the continued existence of any
threatened or endangered species or destroy or adversely modify
designated critical habitat. Federal agencies are also required to
confer with NMFS regarding any actions likely to jeopardize a species
proposed for listing under the ESA, or likely to destroy or adversely
modify proposed critical habitat, pursuant to section 7(a)(2).
A conference involves informal discussions in which NMFS may
recommend conservation measures to minimize or avoid adverse effects.
The discussions and conservation recommendations are documented in a
conference report provided to the Federal agency. If requested by the
Federal agency, a formal conference report may be issued, including a
biological opinion prepared according to 50 CFR 402.14. A formal
conference report may be adopted as the biological opinion when the
species is listed or critical habitat designated, if no significant new
information or changes to the action alter the content of the opinion.
When a species is listed or critical habitat is designated, Federal
agencies must consult with NMFS on any agency actions that may affect a
listed species or its critical habitat. During the consultation, we
evaluate the agency action to determine whether the action may
adversely affect listed species or critical habitat and issue our
findings in a letter of concurrence or in a biological opinion. If we
conclude in the biological opinion that the agency action would likely
result in the destruction or adverse modification of critical habitat,
we would also identify any reasonable and prudent alternatives to the
action. Reasonable and prudent alternatives are defined in 50 CFR
402.02 as alternative actions identified during formal consultation
that can be implemented in a manner consistent with the intended
purpose of the action, that are consistent with the scope of the
Federal agency's legal authority and jurisdiction, that are
economically and technologically feasible, and that would avoid the
destruction or adverse modification of critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies that have
retained discretionary involvement or control over an action, or where
such discretionary involvement or control is authorized by law, to
reinitiate consultation on previously reviewed actions in instances
where: (1) critical habitat is subsequently designated; or (2) new
information or changes to the action may result in effects to critical
habitat not previously considered in the biological opinion.
Consequently, some Federal agencies may request reinitiation of
consultation or conference with NMFS on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Activities subject to the ESA section 7 consultation process
include activities on Federal lands and activities on private or state
lands requiring a permit from a Federal agency or being funded by a
Federal agency. ESA section 7 consultation would not be required for
Federal actions that do not affect listed species or critical habitat
and for actions that are not federally funded, authorized, or carried
out.
Activities That May Be Affected
Section 4(b)(8) of the ESA requires that we describe briefly, and
evaluate in any proposed or final regulation to designate critical
habitat, those activities that may adversely modify such habitat or
that may be affected by such designation. As described in our Final
Information Report, a wide variety of Federal activities may require
ESA section 7 consultation because they may affect the essential
feature of critical habitat. Specific future activities will need to be
evaluated with respect to their potential to destroy or adversely
modify critical habitat, in addition to their potential to affect and
jeopardize the continued existence of listed species. For example,
activities may adversely modify the substrate portion of the essential
feature by removing or altering the substrate or adversely modify the
water column portion of the essential feature by reducing water clarity
through turbidity. These activities would require ESA section 7
consultation when they are authorized, funded, or carried out by a
Federal agency. A private entity may also be affected by these proposed
critical habitat designations if it is a proponent of a project that
requires a Federal permit or receives Federal funding.
Categories of activities that may be affected by the designations
include but are not limited to coastal and in-water construction,
channel dredging, beach nourishment, shoreline protection, water
quality management, energy development, and military activities.
Questions regarding whether specific activities may constitute
destruction or adverse modification of critical habitat should be
directed to us (see FOR FURTHER INFORMATION CONTACT). Identifying
concentrations of water quality features at which the habitat for
listed corals may be affected is inherently complex and influenced by
taxa, exposure duration, and acclimatization to localized seawater
regimes. Consequently, the actual responses of the critical habitat
(and listed corals) to changes in the essential feature resulting from
future Federal actions will be case and site-specific, and predicting
such responses will require case and site-specific data and analyses.
[[Page 54051]]
Information Quality Act and Peer Review
The data and analyses supporting this action have undergone a pre-
dissemination review and have been determined to be in compliance with
applicable information quality guidelines implementing the Information
Quality Act (Section 515 of Pub. L. 106-554). On December 16, 2004, OMB
issued its Final Information Quality Bulletin for Peer Review
(Bulletin). The Bulletin was published in the Federal Register on
January 14, 2005 (70 FR 2664), and went into effect on June 16, 2005.
The primary purpose of the Bulletin is to improve the quality and
credibility of scientific information disseminated by the Federal
government by requiring peer review of ``influential scientific
information'' and ``highly influential scientific information'' prior
to public dissemination. ``Influential scientific information'' is
defined as information the agency reasonably can determine will have or
does have a clear and substantial impact on important public policies
or private sector decisions. The Bulletin provides agencies broad
discretion in determining the appropriate process and level of peer
review. Stricter standards were established for the peer review of
highly influential scientific assessments, defined as information whose
dissemination could have a potential impact of more than $500 million
in any one year on either the public or private sector or that the
dissemination is novel, controversial, or precedent-setting, or has
significant interagency interest.
The information in the Draft Information Report supporting this
critical habitat rule was considered influential scientific information
and subject to peer review. To satisfy our requirements under the OMB
Bulletin, we obtained independent peer review of the information used
to draft this document, and incorporated the peer review comments into
the Draft Information Report prior to dissemination of the Final
Information Report and completion of this rule. Comments received from
peer reviewers are available on our website at http://www.cio.noaa.gov/services_programs/prplans/ID346.html.
References Cited
A complete list of all references cited in this rulemaking is
available at https://www.fisheries.noaa.gov/action/final-rule-designate-critical-habitat-threatened-caribbean-corals, or upon request
(see FOR FURTHER INFORMATION CONTACT).
Classification
Takings (Executive Order 12630)
Under E.O. 12630, Federal agencies must consider the effects of
their actions on constitutionally protected private property rights and
avoid unnecessary takings of private property. A taking of property
includes actions that result in physical invasion or occupancy of
private property, and regulations imposed on private property that
substantially affect its value or use. In accordance with E.O. 12630,
this final rule would not have significant takings implications. A
takings implication assessment is not required. These designations
would affect only Federal agency actions (i.e., those actions
authorized, funded, or carried out by Federal agencies). Therefore, the
critical habitat designations does not affect landowner actions that do
not require Federal funding or permits.
Regulatory Planning and Review (E.O.s 12866, 14094, 13563)
This rule has been determined to be significant for purposes of
E.O. 12866 as amended by Executive Order 14094. Executive Order 14094,
which amends E.O. 12866 and reaffirms the principles of E.O. 12866 and
E.O 13563, states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and be consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
A final impact analysis report, which has been prepared as part of
the Final Information Report, considers the economic costs and benefits
of this critical habitat designation and alternatives to this
rulemaking as required under E.O. 12866. To review this report, see the
ADDRESSES section above. Based on the economic impacts evaluation in
the Final Information Report, total incremental costs resulting from
the five corals' critical habitat are estimated to range from $76,000
to $690,000 over 10 years, an annualized cost of $11,000 to $98,000
(discounted at 7 percent). These same total incremental costs are
$92,000 to $830,000 over 10 years discounted at 3 percent. The low-end
costs are a result of the increased administrative effort to analyze
impacts to the critical habitat in future consultations on activities
that are not projected to affect Acropora critical habitat (i.e., in
areas outside the boundaries, projects with impacts to water
temperature). The high-end costs are a result of the increased
administrative effort (i.e., low-end costs) plus the incremental
project modification costs that stem solely from the critical habitat.
Incremental project modification costs are a result of future
consultations that are not projected to have effects on Acropora
critical habitat. The high-end costs also assume that the project
modifications will be solely a result of the critical habitat, and not
the presence of the species. However, the high-end estimate is very
likely an overestimate on incremental costs because an undetermined
number of future consultations will have project modifications that
address adverse effects to one or more of the five corals, as well as
adverse effects to the new critical habitat. The final rule also
provides unquantifiable conservation benefits in the following
categories: (1) increased probability of conservation and recovery of
the corals, (2) general ecosystem service benefits of coral reef
conservation, and (3) education and awareness.
Federalism (Executive Order 13132)
Pursuant to the Executive Order on Federalism, E.O. 13132, we
determined that this rule does not have significant federalism effects
and that a federalism assessment is not required. The designation of
critical habitat directly affects only the responsibilities of Federal
agencies. As a result, this rule does not have substantial direct
effects on the States or territories, on the relationship between the
national government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in E.O. 13132. State or local governments may be indirectly affected by
this critical habitat designation if they require Federal funds or
formal approval or authorization from a Federal agency as a
prerequisite to conducting an action. In these cases, the State or
local government agency may participate in the ESA section 7
consultation as a third party. One of the key conclusions of the
economic impact analysis is that the incremental impacts of the
critical habitat designation will likely be limited to additional
administrative costs to NMFS and Federal agencies stemming from the
[[Page 54052]]
need to consider impacts to critical habitat as part of the forecasted
section 7 consultations. The designation of critical habitat is not
expected to have substantial indirect impacts on State or local
governments.
Energy Supply, Distribution, and Use (Executive Order 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking an action expected to lead to the
promulgation of a final rule or regulation that is a significant
regulatory action under E.O. 12866 and is likely to have a significant
adverse effect on the supply, distribution, or use of energy. OMB
Guidance on Implementing E.O. 13211 (July 13, 2001) states that
significant adverse effects could include any of the following outcomes
compared to a world without the regulatory action under consideration:
(1) reductions in crude oil supply in excess of 10,000 barrels per day;
(2) reductions in fuel production in excess of 4,000 barrels per day;
(3) reductions in coal production in excess of 5 million tons per year;
(4) reductions in natural gas production in excess of 25 million cubic
feet per year; (5) reductions in electricity production in excess of 1
billion kilowatt-hours per year or in excess of 500 megawatts of
installed capacity; (6) increases in energy use required by the
regulatory action that exceed any of the thresholds above; (7)
increases in the cost of energy production in excess of 1 percent; (8)
increases in the cost of energy distribution in excess of 1 percent; or
(9) other similarly adverse outcomes. A regulatory action could also
have significant adverse effects if it: (1) adversely affects in a
material way the productivity, competition, or prices in the energy
sector; (2) adversely affects in a material way productivity,
competition or prices within a region; (3) creates a serious
inconsistency or otherwise interferes with an action taken or planned
by another agency regarding energy; or (4) raises novel legal or policy
issues adversely affecting the supply, distribution or use of energy
arising out of legal mandates, the President's priorities, or the
principles set forth in E.O. 12866 and 13211.
This rule will not have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, we have not prepared a
Statement of Energy Effects.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
We prepared a final regulatory flexibility analysis (FRFA) pursuant
to section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601,
et seq.). The FRFA analyzes the impacts to small entities that may be
affected by the critical habitat designations, and it is included as
Appendix B of the Final Information Report and is available upon
request (see ADDRESSES section). The FRFA is summarized below, as
required by section 603 of the RFA.
Our FRFA uses the best available information to identify the
potential impacts of critical habitat on small entities. However, there
are uncertainties that complicate quantification of these impacts,
particularly with respect to the extent to which the quantified impacts
may be borne by small entities. As a result, this FRFA employs a
conservative approach (i.e., more likely to overestimate than
underestimate impacts to small entities) in assuming that the
quantified costs that are not borne by the Federal Government are
generally borne by small entities. This analysis focuses on small
entities located in Broward, Martin, Miami-Dade, Monroe, and Palm Beach
Counties in Florida; Puerto Rico; St. Thomas and St. John; and St.
Croix.
The total maximum annualized impacts to small entities are
estimated to be $88,000, which represents approximately 90 percent of
the total quantified incremental impacts forecasted to result from the
critical habitat designations. This impact assumes that all of the
incremental project modification costs will be incurred by small
entities. These impacts are anticipated to be borne by the small
entities that obtain funds or permits from Federal agencies that
consult with NMFS regarding the five coral species critical habitat in
the next 10 years. Given the uncertainty regarding which small entities
in a given industry will obtain funds or permits from Federal agencies
that will need to consult with NMFS, this analysis estimates impacts to
small entities under two different scenarios. These scenarios are
intended to reflect the range of uncertainty regarding the number of
small entities that may be affected by the designations and the
potential impacts of critical habitat designations on their annual
revenues within that range.
Under Scenario 1, this analysis assumes that all third parties
participating in future consultations are small, and that incremental
impacts are distributed evenly across all of these entities. Scenario 1
accordingly reflects a high estimate of the number of potentially
affected small entities and a low estimate of the potential effect in
terms of percent of revenue. This scenario, therefore, overstates the
number of small entities likely to be affected by the rule and
potentially understates the revenue effect. This analysis anticipates
that 28 small entities engaged in coastal and in-water construction and
dredging activities will collectively incur approximately $88,000 in
annualized costs under Scenario 1. However, because these costs are
shared among 28 entities, annualized impacts of the rule are estimated
to make up less than 1 percent of annual revenues for each affected
small entity.
Under Scenario 2, this analysis assumes costs associated with each
consultation action are borne to a single small entity within an
industry. This method understates the number of small entities affected
but overstates the likely impacts on an entity. As such, this method
arrives at a low estimate of potentially affected entities and a high
estimate of potential effects on revenue, assuming that quantified
costs represent a complete accounting of the costs likely to be borne
by private entities. For the coastal and in-water construction and
dredging industry, this scenario forecasts $88,000 in annualized
impacts would be borne by a single small entity. Though this estimate
is almost certainly an overstatement of the costs borne by a single
small entity, the impact is nonetheless expected to result in impacts
that are less than 5 percent of the average annual revenues for a small
entity in this industry.
While these scenarios present a broad range of potentially affected
entities and the associated revenue effects, we expect the actual
number of small entities affected and revenue effects will be somewhere
in the middle. In other words, some subset greater than 1 and less than
28 of the small entities will participate in section 7 consultations on
the five corals and bear associated impacts annually. Regardless, our
analysis demonstrates that, even if we assume a low-end estimate of
affected small entities, the greatest potential revenue effect is still
less than 5 percent.
Even though we cannot definitively determine the numbers of small
and large entities that may be affected by this rule, there is no
indication that affected project applicants would be only small
entities or mostly small entities. It is unclear whether small entities
would be placed at a competitive disadvantage compared to large
entities. However, as described in the Final Information Report,
consultations and project modifications will be required based on the
type of permitted action and its associated
[[Page 54053]]
impacts on the essential critical habitat feature. Because the costs of
many potential project modifications that may be required to avoid
adverse modification of critical habitat are unit costs (e.g., per mile
of shoreline, per cubic yard of sand moved), such that total project
modification costs would be proportional to the size of the project, it
is not unreasonable to assume that larger entities would be involved in
implementing the larger projects with proportionally larger project
modification costs.
No Federal laws or regulations duplicate or conflict with this
rule. However, other aspects of the ESA may overlap with the critical
habitat designations. For instance, listing of the threatened corals
under the ESA requires Federal agencies to consult with NMFS to avoid
jeopardy to the species, and large portions of the designations overlap
with existing Acropora critical habitat. However, this analysis
examines only the incremental impacts to small entities from this final
rule's critical habitat designations.
The alternatives to the designations considered consisted of a no-
action alternative and an alternative based on identical geographic
designations for each of the five corals. The no-action, or no
designation, alternative would result in no additional ESA section 7
consultations relative to the status quo of the species' listing.
Critical habitat must be designated if prudent and determinable. NMFS
determined that the critical habitat is prudent and determinable, and
the ESA requires critical habitat designation in that circumstance.
Further, we have determined that the physical feature forming the basis
for our critical habitat designations is essential to the corals'
conservation, and conservation of these species will not succeed
without this feature being available. Thus, the lack of protection of
the critical habitat feature from adverse modification could result in
continued declines in abundance and lack of recovery of the five
corals. We rejected this no action alternative because it does not
provide the level of conservation necessary for the five Caribbean
corals. In addition, declines in abundance of the five corals would
result in loss of associated economic and other values these corals
provide to society, such as recreational and commercial fishing and
diving services and shoreline protection services. Thus, small entities
engaged in some coral reef-dependent industries would be adversely
affected by the continued declines in the five corals. As a result, the
no action alternative is not necessarily a ``no cost'' alternative for
small entities.
The identical geographic designation alternative would designate
exactly the same geography for each of the five corals (i.e., 0.5 to 90
m throughout the maximum geographic extent of all the corals' ranges
collectively). This alternative would likely result in the same number
and complexity of consultations as the proposed rule, because
collectively all of the units in the proposed rule cover the same
geography as the identical geographic designation alternative. However,
this alternative does not provide the appropriate conservation benefits
for each species, as it would designate areas in which one particular
species may not exist (e.g., Dendrogyra cylindrus only occupies 1 to 25
m). Therefore, we rejected the identical geographic designation
alternative because it does not provide the level of conservation
necessary for the five Caribbean corals, and because it does not
accurately reflect the habitats that are critical for each species.
Furthermore, it would be overly burdensome to Federal action agencies
to consider impacts to habitat in areas where the species do not occur.
Coastal Zone Management Act
We have determined that this action will have no reasonably
foreseeable effects on the enforceable policies of approved Florida,
Puerto Rico, and USVI coastal zone management plans.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new or revised collection of
information requirements. This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
This rule will not produce a Federal mandate. The designation of
critical habitat does not impose a legally-binding duty on non-Federal
government entities or private parties. The only regulatory effect is
that Federal agencies must ensure that their actions are not likely to
destroy or adversely modify critical habitat under section 7 of the
ESA. Non-Federal entities that receive Federal funding, assistance,
permits or otherwise require approval or authorization from a Federal
agency for an action may be indirectly impacted by the designation of
critical habitat, but the Federal agency has the legally binding duty
to avoid destruction or adverse modification of critical habitat.
We do not anticipate that this rule will significantly or uniquely
affect small governments. Therefore, a Small Government Action Plan is
not required.
Consultation and Coordination With Indian Tribal Governments (Executive
Order 13175)
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal Government.
This relationship has given rise to a special Federal trust
responsibility involving the legal responsibilities and obligations of
the United States toward Indian Tribes and with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights.
Pursuant to these authorities, lands have been retained by Indian
Tribes or have been set aside for tribal use. These lands are managed
by Indian Tribes in accordance with tribal goals and objectives within
the framework of applicable treaties and laws. Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the responsibilities of the Federal Government in matters affecting
tribal interests.
In developing this rule, we reviewed maps and did not identify any
areas under consideration for critical habitat that overlap with Indian
lands. Based on this, we found the critical habitat designations for
threatened Caribbean corals do not have tribal implications.
Environmental Justice and Racial Equity (E.O.s 12898, 14096, 14019,
13985)
The designation of critical habitat is not expected to have a
disproportionately high effect on minority populations or low-income
populations. The purpose of this rule is to protect and conserve ESA-
listed species through the designation of critical habitat and is
expected to help promote a healthy environment; thus, we do not
anticipate minority populations or low-income populations to experience
disproportionate and adverse human health or environmental burdens. The
designation of critical habitat is not expected to disproportionately
affect minority populations, low-income populations, or populations
otherwise adversely affected by persistent poverty or inequality.
Further, it is not expected to create any barriers to opportunity for
underserved communities. The proposed rule was widely distributed,
including to the affected states and
[[Page 54054]]
territorial governments. We did not receive any public comments
suggesting the designation would result in adverse effects on these
communities.
List of Subjects
50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 226
Endangered and threatened species.
Dated: July 31, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR parts
223 and 226 as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for Sec.
223.206(d)(9).
0
2. In Sec. 223.102 amend the table in paragraph (e), under the heading
``Corals'' by revising the entries ``Coral, boulder star''; ``Coral,
lobed star''; ``Coral, mountainous star''; ``Coral, pillar''; and
``Coral, rough cactus'' to read as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------------------------------- Citation(s) for listing
Description of listed determination(s) Critical habitat ESA rules
Common name Scientific name entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Corals
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Coral, boulder star................. Orbicella franksi...... Entire species......... 79 FR 53852, Sept. 10, [Insert 226.230]...... NA
2014.
* * * * * * *
Coral, lobed star................... Orbicella annularis.... Entire species......... 79 FR 53852, Sept. 10, [Insert 226.230]...... NA
2014.
Coral, mountainous star............. Orbicella faveolata.... Entire species......... 79 FR 53852, Sept. 10, [Insert 226.230]...... NA
2014.
Coral, pillar....................... Dendrogyra cylindrus... Entire species......... 79 FR 53852, Sept. 10, [Insert 226.230]...... NA
2014.
Coral, rough cactus................. Mycetophyllia ferox.... Entire species......... 79 FR 53852, Sept. 10, [Insert 226.230]...... NA
2014.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).
* * * * *
PART 226--DESIGNATED CRITICAL HABITAT
0
3. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
4. Add Sec. 226.230 to read as follows:
Sec. 226.230 Critical habitat for the Caribbean Boulder Star Coral
(Orbicella franksi), Lobed Star Coral (O. annularis), Mountainous Star
Coral (O. faveolata), Pillar Coral (Dendrogyra cylindrus), and Rough
Cactus Coral (Mycetophyllia ferox).
Critical habitat is designated in the following states and counties
for the following species as depicted in the maps below and described
in paragraphs (a) through (h) of this section. The maps can be viewed
or obtained with greater resolution https://www.fisheries.noaa.gov/action/final-rule-designate-critical-habitat-threatened-caribbean-corals to enable a more precise inspection of critical habitat for
Orbicella franksi, O. annularis, O. faveolata, Dendrogyra cylindrus,
and Mycetophyllia ferox.
(a) Critical habitat locations. Critical habitat is designated for
the following five Caribbean corals in the following states, counties,
and offshore locations:
Table 1 to Paragraph (a)
------------------------------------------------------------------------
Species State--Counties
------------------------------------------------------------------------
Orbicella annularis.................... FL--Palm Beach, Broward, Miami-
Dade, and Monroe; PR--All;
USVI--All; Flower Garden
Banks; Navassa Island.
O. faveolata........................... FL--Martin, Palm Beach,
Broward, Miami-Dade, and
Monroe; PR--All; USVI--All;
Flower Garden Banks; Navassa
Island.
O. franksi............................. FL--Palm Beach, Broward, Miami-
Dade, and Monroe; PR--All;
USVI--All; Flower Garden
Banks; Navassa Island.
Dendrogyra cylindrus................... FL--Palm Beach, Broward, Miami-
Dade, and Monroe; PR--All;
USVI--All; Navassa Island.
Mycetophyllia ferox.................... FL--Broward, Miami-Dade, and
Monroe; PR--All; USVI--All;
Navassa Island.
------------------------------------------------------------------------
(b) Critical habitat boundaries. Except as noted in paragraphs (d)
and (e) of this section, critical habitat for the five Caribbean corals
is defined as all marine waters in the particular depth ranges relative
to mean low water as depicted in the maps below and described in the
Table of the locations of the critical habitat units for Orbicella
franksi, O. annularis, O. faveolata, Dendrogyra cylindrus, and
Mycetophyllia ferox. Depth contours or other identified boundaries on
the maps form the boundaries of the critical habitat units.
Specifically, the COLREGS Demarcation Lines (33 CFR 80), the boundary
between the South Atlantic Fishery Management Council (SAFMC) and the
[[Page 54055]]
Gulf of Mexico Fishery Management Council (GMFMC; 50 CFR 600.105), the
Florida Keys National Marine Sanctuary (15 CFR part 922 subpart P,
appendix I), and the Caribbean Island Management Area (50 CFR part 622,
appendix E), create portions of the boundaries in several units.
Table 2 to Paragraph (b)--Table of the Locations of the Critical Habitat Units for Orbicella franksi, O. annularis, O. faveolata, Dendrogyra cylindrus,
and Mycetophyllia ferox
--------------------------------------------------------------------------------------------------------------------------------------------------------
Critical habitat unit
Species name Location Geographic extent Water depth range
--------------------------------------------------------------------------------------------------------------------------------------------------------
Orbicella annularis................ OANN-1................... Florida.................... Lake Worth Inlet, Palm Beach County 2-20 m(6.5-65.6 ft).
Florida.................... to Government Cut, Miami-Dade 0.5-20 m (1.6-65.6
County. ft).
Government Cut, Miami-Dade County to
Dry Tortugas.
OANN-2................... Puerto Rico................ All islands......................... 0.5-20 m (1.6-65.6
ft).
OANN-3................... USVI....................... All islands of St. Thomas and St. 0.5-20 m (1.6-65.6
John. ft).
OANN-4................... USVI....................... All islands of St. Croix............ 0.5-20 m (1.6-65.6
ft).
OANN-5................... Navassa.................... Navassa Island...................... 0.5-20 m (1.6-65.6
ft).
OANN-6................... FGB........................ East and West Flower Garden, Rankin, 16-90 m (53-295 ft).
Geyer, and McGrail Banks.
Orbicella faveolata................ OFAV-1................... Florida.................... St. Lucie Inlet, Martin County to 2-40 m (6.5-131 ft).
Florida.................... Government Cut, Miami-Dade County. 0.5-40 m (1.6-131
Government Cut, Miami-Dade County to ft).
Dry Tortugas.
OFAV-2................... Puerto Rico................ All islands of Puerto Rico.......... 0.5-90 m (1.6-295
ft).
OANN-3................... USVI....................... All islands of St. Thomas and St. 0.5-90 m (1.6-295
John. ft).
OFAV-4................... USVI....................... All islands of St. Croix............ 0.5-90 m (1.6-295
ft).
OFAV-5................... Navassa.................... Navassa Island...................... 0.5-90 m (1.6-295
ft).
OFAV-6................... FGB........................ East and West Flower Garden, Rankin, 16-90 m (53-295 ft).
Geyer, and McGrail Banks.
Orbicella franksi.................. OFRA-1................... Florida.................... St. Lucie Inlet, Martin County to 2-40 m (6.5-131 ft).
Florida.................... Government Cut, Miami-Dade County. 0.5-40 m (1.6-131
Government Cut, Miami-Dade County to ft).
Dry Tortugas.
OFRA-2................... Puerto Rico................ All islands of Puerto Rico.......... 0.5-90 m (1.6-295
ft).
OFRA-3................... USVI....................... All islands of St. Thomas and St. 0.5-90 m (1.6-295
John. ft).
OFRA-4................... USVI....................... All islands of St. Croix............ 0.5-90 m (1.6-295
ft).
OFRA-5................... Navassa.................... Navassa Island...................... 0.5-90 m (1.6-295
ft).
OFRA-6................... FGB........................ East and West Flower Garden, Rankin, 16-90 m (53-295 ft).
Geyer, and McGrail Banks.
Dendrogyra cylindrus............... DCYL-1................... Florida.................... Lake Worth Inlet, Palm Beach County 2-25 m (6.5-82 ft).
Florida.................... to Government Cut, Miami-Dade 1-25 m (3.3-82 ft).
County.
Government Cut, Miami-Dade County to
Dry Tortugas.
DCYL-2................... Puerto Rico................ All islands......................... 1-25 m (3.3-82 ft).
DCYL-3................... USVI....................... All islands of St. Thomas and St. 1-25 m (3.3-82 ft).
John.
DCYL-4................... USVI....................... All islands of St. Croix............ 1-25 m (3.3-82 ft).
DCYL-5................... Navassa.................... Navassa Island...................... 1-25 m (3.3-82 ft).
Mycetophyllia ferox................ MFER-1................... Florida.................... Broward County to Dry Tortugas...... 5-40 m (16.4-131 ft).
MFER-2................... Puerto Rico................ All islands of Puerto Rico.......... 5-90 m (16.4-295 ft).
MFER-3................... USVI....................... All islands of St. Thomas and St. 5-90 m (16.4-295 ft).
John.
MFER-4................... USVI....................... All islands of St. Croix............ 2-40 m (6.5-131 ft).
MFER-5................... Navassa.................... Navassa Island...................... 0.5-40 m (1.6-131
ft).
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(c) Essential feature. The feature essential to the conservation of
Orbicella franksi, O. annularis, O. faveolata, Dendrogyra cylindrus,
and Mycetophyllia ferox is: Sites that support the normal function of
all life stages of the corals, including reproduction, recruitment, and
maturation. These sites are natural, consolidated hard substrate or
dead coral skeleton, which is free of algae and sediment at the
appropriate scale at the point of larval settlement or fragment
reattachment, and the associated water column. Several attributes of
these sites determine the quality of the area and influence the value
of the associated feature to the conservation of the species:
(1) Substrate with the presence of crevices and holes that provide
cryptic habitat, the presence of microbial biofilms, or presence of
crustose coralline algae;
(2) Reefscape with no more than a thin veneer of sediment and low
occupancy by fleshy and turf macroalgae;
(3) Marine water with levels of temperature, aragonite saturation,
nutrients, and water clarity that have been observed to support any
demographic function; and
(4) Marine water with levels of anthropogenically-introduced (from
humans) chemical contaminants that do not preclude or inhibit any
demographic function.
(d) Areas not included in critical habitat. Critical habitat does
not include the following particular areas where they overlap with the
areas described in paragraphs (a) through (c) of this section:
(1) Pursuant to ESA section 4(a)(3)(B)(i), all areas subject to the
2014 Naval Air Station Key West Integrated Natural Resources Management
Plan.
(2) Pursuant to ESA section 3(5)(A)(i)(I), areas where the
essential feature cannot occur;
(3) Pursuant to ESA section 3(5)(A)(i)(I), all managed areas that
may contain natural hard substrate but do not provide the quality of
substrate essential for the conservation of threatened corals. Managed
areas that do not provide the quality of substrate essential for the
conservation of the five Caribbean corals are defined as particular
areas whose consistently disturbed nature renders them poor habitat for
coral growth and survival over time. These managed areas include
specific areas where the substrate has been disturbed by planned
management authorized by local, state, or Federal governmental entities
at the time of critical habitat designation, and will continue to be
periodically disturbed by such management. Examples include, but are
not necessarily limited to, dredged navigation channels, shipping
basins, vessel berths, and active anchorages. Specific federally-
authorized channels and harbors considered as managed areas not
included in the designations are:
(i) St. Lucie Inlet.
(ii) Palm Beach Harbor.
(iii) Hillsboro Inlet.
(iv) Port Everglades.
(v) Baker's Haulover Inlet.
(vi) Miami Harbor.
(vii) Key West Harbor.
(viii) Arecibo Harbor.
(ix) San Juan Harbor.
(x) Fajardo Harbor.
(xi) Ponce Harbor.
(xii) Mayaguez Harbor.
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(xiii) St. Thomas Harbor.
(xiv) Christiansted Harbor.
(4) Pursuant to ESA section 3(5)(A)(i), artificial substrates
including but not limited to: fixed and floating structures, such as
aids-to-navigation (AToNs), seawalls, wharves, boat ramps, fishpond
walls, pipes, submarine cables, wrecks, mooring balls, docks, and
aquaculture cages.
(e) Areas excluded from critical habitat. Pursuant to ESA section
4(b)(2), the following area is excluded from critical habitat where it
overlaps with the areas described in paragraphs (a) through (c) of this
section: the designated restricted area managed by the South Florida
Ocean Measuring Facility, defined in 33 CFR 334.580.
(f) Maps. Critical habitat maps for the Caribbean Boulder Star
Coral, Lobed Star Coral, Mountainous Star Coral, Pillar Coral, and
Rough Cactus Coral.
Figure 1 Paragraph (f)
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[FR Doc. 2023-16556 Filed 8-8-23; 8:45 am]
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