Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 45353 

Dated: August 27, 2009. 

Thomas L. Strickland, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E9–21168 Filed 8–28–09; 4:15 pm] 

BILLING CODE 4310–55–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 070717355–91122–02] 

RIN 0648–AV74 

Endangered and Threatened Species; 

Critical Habitat for the Endangered 

Distinct Population Segment of 

Smalltooth Sawfish 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), issue a final 

rule to designate critical habitat for the 

U.S. distinct population segment (DPS) 

of smalltooth sawfish (Pristis pectinata), 

which was listed as endangered on 

April 1, 2003, under the Endangered 

Species Act (ESA). The critical habitat 

consists of two units: the Charlotte 

Harbor Estuary Unit, which comprises 

approximately 221,459 acres of coastal 

habitat; and the Ten Thousand Islands/ 

Everglades Unit (TTI/E), which 

comprises approximately 619,013 acres 

of coastal habitat. The two units are 

located along the southwestern coast of 

Florida between Charlotte Harbor and 

Florida Bay. 

DATES: This rule becomes effective 

October 2, 2009. 

ADDRESSES: The final rule, Final 

Regulatory Flexibility Analysis, and 

Final 4(b)(2) Report used in preparation 

of this final rule, as well as comments 

and information received, are available 

on the NMFS Web site at http:// 

www.sero.noaa.gov/, or http:// 

www.regulations.gov, or by contacting 

the National Marine Fisheries Service’s 

Southeast Regional Office, 263 13th 

Avenue, South, St. Petersburg, FL 

33701. 

FOR FURTHER INFORMATION CONTACT: 

Shelley Norton, NMFS, Southeast 

Regional Office, at 727–824–5312; or 

Lisa Manning, NMFS, Office of 

Protected Resources, at 301–713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the ESA, we are responsible for 

determining whether certain species are 

threatened or endangered and for 

designating critical habitat for such 

species (16 U.S.C. 1533). On April 1, 

2003, we listed the U.S. DPS of 

smalltooth sawfish (‘‘the species’’) as 

endangered (68 FR 15674). At the time 

of listing, we also announced that 

critical habitat was not then 

determinable because we were 

completing ongoing studies necessary 

for the identification of specific habitats 

and environmental features important 

for the conservation of the species. 

Subsequently, we have sponsored 

additional research on the species, its 

habitat use, and its conservation needs. 

Additionally, NMFS has developed a 

recovery plan (NMFS, 2009) for the 

species pursuant to section 4(f) of the 

ESA. We have reviewed the best 

available scientific data and identified 

specific areas in the species’ occupied 

range on which are located those 

physical and biological features 

essential to the conservation of the 

species that may require special 

management considerations or 

protection. We published a proposed 

critical habitat designation for the 

smalltooth sawfish on November 20, 

2008 (73 FR 70290), and requested 

comments by January 20, 2009. On 

December 9, 2008, we published a 

notice in the Federal Register (73 FR 

74681) announcing the dates, times, and 

locations of two public hearings to 

receive public comments on the 

proposed critical habitat rule. In 

addition to the Federal Register notice 

announcing the public hearings, we 

advertised the public hearings in the 

local newspapers (News-Press of Ft. 

Myers on December 8, 2008, and in the 

Naples-News on December 14, 2008). 

During the public comment period we 

received several requests to extend the 

public comment period. On January 29, 

2009, we reopened the public comment 

period until February 13, 2009 (74 FR 

5141). 

The key conservation objective we 

have identified for the species is the 

need to facilitate recruitment into the 

adult sawfish population by protecting 

juvenile nursery areas. We determined 

the location of nursery areas by 

applying a model developed for 

identifying elasmobranch nursery areas 

to smalltooth sawfish encounter data. 

Additionally, we determined that the 

habitat features essential to the 

conservation of the species (also known 

as the essential features) are red 

mangroves and shallow euryhaline 

habitats characterized by water depths 

between the Mean High Water line and 

3 ft (0.9 m) measured at Mean Lower 

Low Water (MLLW). These essential 

features are necessary to facilitate 

recruitment of juveniles into the adult 

population, because they provide for 

predator avoidance and habitat for prey 

in the areas currently being used as 

juvenile nursery areas. We determined 

these features may require special 

management considerations or 

protection due to human and natural 

impacts to the features, including 

development, marine construction, and 

storms. We proposed designating two 

specific areas that are nursery areas and 

contain the essential features necessary 

to the species conservation. The two 

areas are: the Charlotte Harbor Estuary 

Unit, which comprises approximately 

221,459 acres (346 mi2) of coastal 

habitat; and the Ten Thousand Islands/ 

Everglades Unit (TTI/E), which 

comprises approximately 619,013 acres 

(967 mi2) of coastal habitat. The two 

units are located along the southwestern 

coast of Florida between Charlotte 

Harbor and Florida Bay. 

Smalltooth Sawfish Natural History 

The following discussion of the 

distribution, life history, and habitat use 

of the U.S. DPS of smalltooth sawfish is 

based on the best available commercial 

and scientific information, including 

information provided in the Status 

Review (65 FR 12959; March 10, 2000) 

and the Smalltooth Sawfish Recovery 

Plan (January 2009). 

Distribution and Range 

Smalltooth sawfish are tropical 

marine and estuarine elasmobranch 

(e.g., sharks, skates, and rays) fish that 

are reported to have a circumtropical 

distribution. The historic range of the 

smalltooth sawfish in the United States 

extends from Texas to New York 

(NMFS, 2009). The U.S. region that has 

historically harbored the largest number 

of smalltooth sawfish is south and 

southwest Florida from Charlotte Harbor 

to the Dry Tortugas. Most historic 

capture records along the Atlantic coast 

north of Florida are from spring and 

summer months and warmer water 

temperatures. Most specimens captured 

along the Atlantic coast north of Florida 

were also large (greater than 10 ft or 3 

m) adults and thought to represent 

seasonal migrants, wanderers, or 

colonizers from a core or resident 

population(s) to the south rather than 

being resident members of a continuous, 

even-density population (Bigelow and 

Schroeder, 1953). Historic records from 

Texas to the Florida Panhandle suggest 

a similar spring and summer pattern of 

occurrence. While less common, winter 


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records from the northern Gulf of 

Mexico suggest a resident population, 

including juveniles, may have once 

existed in this region. 

The Status Review Team (NMFS, 

2000) compiled information from all 

known literature accounts, museum 

collection specimens, and other records 

of the species. The species suffered 

significant population decline and range 

constriction in the early to mid 1900s. 

Encounters with the species outside of 

Florida have been rare since that time. 

Since the 1990s, the distribution of 

smalltooth sawfish in the United States 

has been restricted to peninsular Florida 

(Seitz and Poulakis, 2002; Poulakis and 

Seitz, 2004; Simpfendorfer and Wiley, 

2005a; Mote Marine Laboratory’s 

Sawfish Encounter Database; and the 

FLMNH National Sawfish Encounter 

Database [FLMNHNSED]). Encounter 

data indicate smalltooth sawfish 

encounters can be found with some 

regularity only in south Florida from 

Charlotte Harbor to Florida Bay. A 

limited number of reported encounters 

(one in Georgia, one in Alabama, one in 

Louisiana, and one in Texas) have 

occurred outside of Florida since 1998. 

Peninsular Florida is the main U.S. 

region that historically and currently 

hosts the species year-round because the 

region provides the appropriate climate 

(subtropical to tropical) and contains 

the habitat types (lagoons, bays, 

mangroves, and nearshore reefs) suitable 

for the species. Encounter data and 

research efforts indicate a resident, 

reproducing population of smalltooth 

sawfish exists only in southwest Florida 

(Simpfendorfer and Wiley, 2005a). 

Life History 

Smalltooth sawfish are approximately 

31 in (80 cm) in total length at birth and 

may grow to a length of 18 ft (540 cm) 

or greater. A recent study by 

Simpfendorfer et al. (2008) suggests 

rapid juvenile growth occurs during the 

first 2 years after birth. First year growth 

is 26–33 in (65–85 cm) and second year 

growth is 19–27 in (48–68 cm). Growth 

rates beyond 2 years are uncertain; 

however, the average growth rate of 

captive smalltooth sawfish has been 

reported between 5.8 in (13.9 cm) and 

7.7 in (19.6 cm) per year. Apart from 

captive animals, little is known of the 

species’ age parameters (i.e., age-specific 

growth rates, age at maturity, and 

maximum age). Simpfendorfer (2000) 

estimated age at maturity between 10 

and 20 years, and a maximum age of 30 

to 60 years. Unpublished data from 

Mote Marine Laboratory (MML) and 

NMFS indicate male smalltooth sawfish 

do not reach maturity until they reach 

133 in (340 cm). 

No directed research on smalltooth 

sawfish feeding habits exists. Reports of 

sawfish feeding habits suggest they 

subsist chiefly on small schooling fish, 

such as mullets and clupeids. They are 

also reported to feed on crustaceans and 

other bottom-dwelling organisms. 

Observations of sawfish feeding 

behavior indicate that they attack fish 

by slashing sideways through schools, 

and often impale the fish on their rostral 

(saw) teeth (Breder, 1952). The fish are 

subsequently scraped off the teeth by 

rubbing them on the bottom and then 

ingested whole. The oral teeth of 

sawfish are ray-like, having flattened 

cusps that are better suited to crushing 

or gripping. 

Very little is known about the specific 

reproductive biology of the smalltooth 

sawfish. As with all elasmobranchs, 

fertilization occurs internally. The 

embryos of smalltooth sawfish, while 

still bearing the large yolk sac, resemble 

adults relative to the position of their 

fins and absence of the lower caudal 

lobe. During embryonic development, 

the rostral blade is soft and flexible. The 

rostral teeth are also encapsulated or 

enclosed in a sheath until birth. Shortly 

after birth, the teeth become exposed 

and attain their full size, proportionate 

to the size of the saw. Total length of the 

animal at birth is approximately 31 in 

(80 cm), with the smallest free-living 

specimens reported during field studies 

in Florida being 27–32 in (69–81 cm) 

(Simpfendorfer et al., 2008). 

Documentation on the litter size of 

smalltooth sawfish is very limited. 

Gravid females have been documented 

carrying between 15–20 embryos; 

however, the source of these data is 

unclear and may represent an overestimate of litter size. Studies of 

largetooth sawfish in Lake Nicaragua 

(Thorson, 1976) report brood sizes of 

1–13 individuals, with a mean of 7 

individuals. The gestation period for 

largetooth sawfish is approximately 5 

months, and females likely produce 

litters every second year. Although there 

are no such studies on smalltooth 

sawfish, their similarity to the 

largetooth sawfish implies that their 

reproductive biology may be similar. 

Genetic research currently underway 

may assist in determining reproductive 

characteristics (i.e., litter size and 

breeding periodicity). 

No confirmed breeding sites have 

been identified to date since directed 

research began in 1998. Research is 

underway to investigate areas where 

adult smalltooth sawfish have been 

reported to congregate along the 

Everglades coast to determine if 

breeding is occurring in the area. 

Life history information on the 

smalltooth sawfish has been evaluated 

using a demographic approach and life 

history data from the literature on 

smalltooth sawfish, largetooth sawfish, 

and similar species. Simpfendorfer 

(2000) estimates intrinsic rates of 

natural population increase of 0.08 to 

0.13 per year and population doubling 

times from 5.4 to 8.5 years. These low 

intrinsic rates of population increase are 

associated with the life history strategy 

known as ‘‘k-selection.’’ K-selected 

animals are usually successful at 

maintaining relatively small, persistent 

population sizes in relatively constant 

environments. Consequently, they are 

not able to respond effectively (rapidly) 

to additional and new sources of 

mortality resulting from changes in their 

environment. Musick (1999) and Musick 

et al. (2000) noted that intrinsic rates of 

increase less than ten percent were low, 

and such species are particularly 

vulnerable to excessive mortalities and 

rapid population declines, after which 

recovery may take decades. Thus, 

smalltooth sawfish populations are 

expected to recover slowly. 

Simpfendorfer (2000) concluded that 

recovery was likely to take decades or 

longer, depending on how effectively 

sawfish could be protected. 

Habitat Usage 

At the time of listing, very little 

information was known about the 

habitat usage patterns of the species. 

The Status Review (NMFS, 2000) and 

the final listing rule identified habitat 

loss and degradation as the secondary 

cause of the species’ decline. The 

primary reason for the species’ decline 

was bycatch in various commercial and 

recreational fisheries. 

The Status Review described sawfish 

habitat usage as: ‘‘Sawfish in general 

inhabit the shallow coastal waters of 

most warm seas throughout the world. 

They are found very close to shore in 

muddy and sandy bottoms, seldom 

descending to depths greater than 32 ft 

(10 m). They are often found in 

sheltered bays, on shallow banks, and in 

estuaries or river mouths.’’ In the years 

since the status review, additional 

research on habitat use by smalltooth 

sawfish has been undertaken. This 

research confirmed the general 

characterization of habitat use for 

smalltooth sawfish and revealed a more 

complex pattern of habitat use than 

previously known, with different life 

history stages having different patterns 

of habitat use. 

A variety of methods have been used 

to study habitat use patterns of 

smalltooth sawfish, including acoustic 

telemetry (Simpfendorfer, 2003), 


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acoustic monitoring (Simpfendorfer, 

unpublished data; Poulakis, 

unpublished data), public encounter 

databases (Seitz and Poulakis, 2002; 

Poulakis and Seitz, 2004; Simpfendorfer 

and Wiley, 2005a), and satellite archival 

tagging (Simpfendorfer and Wiley, 

2005b). The majority of this research has 

targeted juvenile sawfish, but some 

information on adult habitat use has 

also been obtained. 

MML and the Florida Fish and 

Wildlife Research Institute (FWRI) 

manage encounter databases containing 

data on sightings and captures of 

smalltooth sawfish from commercial 

and recreational fishermen, research 

efforts, and other sources (e.g., divers 

and boaters). These databases provide 

insight into the habitat use patterns of 

smalltooth sawfish. To request reporting 

of sightings/captures from the public, 

MML and FWRI (1998–2008) have 

engaged in various outreach efforts. 

These efforts include placing flyers at 

boat ramps and tackle/dive shops, 

media releases, articles in fishing 

magazines, interviews with recreational 

fishing guides and commercial fishers, 

Web sites, and personal contacts with 

researchers. Standard questionnaires are 

used to collect encounter data (water 

depth, location, tidal states, gear 

information, size of animal, and various 

other physical and environmental 

features). Outreach efforts were initially 

focused primarily in Florida but have 

expanded into areas along the 

southeastern coasts of the United States 

between Texas and North Carolina. 

Based on our historic and current 

knowledge of where smalltooth sawfish 

are encountered (coastal areas), we 

believe recreational fishers who 

primarily fish in coastal areas represent 

the best source of occurrence data for 

the species. Additionally, 

Simpfendorfer and Wiley (2005a) 

analyzed the number of registered 

fishers in Florida by county to see if 

fishing effort affects the distribution of 

the encounters. No strong correlation 

between the distribution of fishers and 

encounter locations was found. Based 

on Simpfendorfer and Wiley (2005a), we 

believe that the encounter data are not 

geographically biased. 

Directed research programs conducted 

by FWRI, MML, FLMNH, and NMFS are 

also a source of encounter data. 

Directed-research efforts on the species 

are also primarily focused in coastal 

areas but are limited to southwest 

Florida between Charlotte Harbor and 

the Florida Keys. The sampling 

methodologies for the directed research 

efforts are not random or stratified: 

Research efforts are focused in areas 

where sawfish have been encountered, 

primarily southwest Florida. We 

anticipate future sampling efforts for 

these and other areas will use a randomstratified approach. Research is 

underway to determine habitat usage 

patterns, site fidelity, movement 

patterns, and various genetic 

relationships. 

Encounter and research data provide 

some insight into adult smalltooth 

sawfish habitat usage patterns. 

Information on adult smalltooth sawfish 

comes from encounter data, observers 

aboard fishing vessels, and pop-up 

satellite archival tags (PAT). Data on 

adult male (at least 134 in (340 cm) in 

length) and adult female (142 in (360 

cm) in length) smalltooth sawfish are 

very limited. The encounter data suggest 

that adult sawfish occur from shallow 

coastal waters to deeper shelf waters. 

Poulakis and Seitz (2004) observed that 

nearly half of the encounters with adultsized sawfish in Florida Bay and the 

Florida Keys occurred in depths from 

200 to 400 ft (70 to 122 m). 

Simpfendorfer and Wiley (2005a) also 

reported encounters in deeper water off 

the Florida Keys, noting that these were 

mostly reported during winter. 

Observations on commercial longline 

fishing vessels and fishery independent 

sampling in the Florida Straits show 

large sawfish in depths of up to 130 ft 

(40 m) (Carlson and Burgess, 

unpublished data). 

Seitz and Poulakis (2002) reported 

that one adult-sized animal, identifiable 

by its broken rostrum, was captured in 

the same location over a period of a 

month near Big Carlos Pass. This 

suggests that adults may have some 

level of site fidelity for relatively short 

periods; however, the historic 

occurrence of seasonal migrations along 

the U.S. East Coast also suggests that 

adults may be more nomadic than 

juveniles with their distribution 

controlled, at least in part, by water 

temperature. 

In summary, there is limited 

information on adult sawfish 

distribution and habitat use. Adult 

sawfish are encountered in various 

habitat types (mangrove, reef, seagrass, 

and coral), in varying salinity regimes 

and temperatures, and at various water 

depths. Adults are believed to feed on 

a variety of fish species and crustaceans. 

No known breeding sites have been 

identified. Encounter data have 

identified river mouths as areas where 

many people observe both juvenile and 

adult sawfish. Seitz and Poulakis (2002) 

noted that many encounters occurred at 

or near river mouths in southwest 

Florida. Simpfendorfer and Wiley 

(2005b) reported a similar pattern of 

distribution along the entire west coast 

of Florida. Along the Everglades coastal 

region, Simpfendorfer and Wiley 

(2005b) report a strong association of 

smalltooth sawfish with the Chatham, 

Lostmans, Rodgers, Broad, Harney, and 

Shark Rivers. 

Most of the research and encounter 

data on habitat usage of smalltooth 

sawfish have been obtained on juveniles 

less than 79 in (200 cm) in length. 

Juveniles in this size class are most 

susceptible to predation and starvation 

(Simpfendorfer, 2006). Like other 

species of elasmobranchs, smalltooth 

sawfish appear to use nursery areas 

because of the reduced numbers of 

predators and abundant food resources 

such areas can provide (Simpfendorfer 

and Milward, 1993). 

Much of the research on smalltooth 

sawfish juveniles indicates some 

differences in habitat use based on the 

length of the animals, between what are 

characterized as very small (less than 39 

in (100 cm)) and small (39–79 in (100– 

200) cm) juveniles. Most encounters of 

both very small and small juveniles 

have been within 1,641 ft (500 m) of 

shore (Simpfendorfer, 2006). 

Very small juvenile smalltooth 

sawfish show high levels of site fidelity, 

at least over periods of days and 

potentially for much longer 

(Simpfendorfer, 2003; 2006). Limited 

acoustic tracking studies (five animals) 

have shown that, at this size, sawfish 

will remain associated with the same 

shallow mud bank over periods of 

several days (Simpfendorfer, 2003). 

Very small juveniles spend a large 

portion of their time on the same 

shallow mud or sand banks in water less 

than 1 ft (30 cm) deep. Since water 

levels on individual mud banks vary 

with the tide, the movements of these 

small animals appear to be directed 

toward remaining in shallow water. The 

mud banks are very small, and 

preliminary home range size for the 

tracked animals is estimated to be 

1,076–10,763 ft2 (100–1,000 m2) 

(Simpfendorfer, 2003). The longer-term 

fidelity to these sites is poorly 

understood, and ongoing research is 

expected to provide more insight into 

determining how much habitat very 

small juveniles use on a daily basis. 

Simpfendorfer (2001) concludes that 

shallow coastal waters represent key 

habitat for the species, and in particular 

that waters less than 3.3 ft (1 m) may be 

very important as nursery areas. The 

primary purpose of staying in such 

shallow water is likely to avoid 

predators, such as bull sharks. 

Additionally, these shallow waters 

provide warm water temperatures that 

may be utilized to maximize growth 

rates (Simpfendorfer, 2006). 


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Simpfendorfer (2001) concludes that 

most smalltooth sawfish (adults and 

juveniles) show a preference for water 

temperatures greater than 17.8 °C (64 

°F). 

In addition to shallow mud banks, 

very small juveniles also use red 

mangrove prop root habitats in southern 

Florida (Simpfendorfer and Wiley, 

2005a). Animals in this size class spend 

the vast majority of their time in very 

shallow water less than 1 ft (30 cm) 

deep, and they tend to move into 

mangrove prop roots during periods of 

high tide. Red mangrove habitats also 

provide foraging opportunities for very 

small and small juveniles, because the 

prop root system provides nursery areas 

for various fish and crustacean species. 

Small juveniles have many of the 

same habitat use characteristics seen in 

the very small sawfish. Their 

association with very shallow water 

(less than 1 ft (30 cm) deep) is slightly 

weaker, possibly because they are better 

suited to predator avoidance due to 

their larger size and greater experience 

(NMFS, 2006). They do still have a 

preference for shallow water, remaining 

in depths mostly less than 3.3 ft (1 m). 

Most encounters of small juveniles also 

occur near red mangroves. Site fidelity 

has also been studied for small juvenile 

sawfish. Several sawfish, approximately 

59 in (150 cm) in length and fitted with 

acoustic tags, have been relocated in the 

same general areas over periods of 

several months, suggesting a high level 

of site fidelity (Simpfendorfer, 2003). 

The daily home range for these animals, 

based on data from a few animals, 

appears to be much larger than that of 

very small juveniles (0.386–1.93 mi2 or 

1–5 km2). The recent implementation of 

acoustic monitoring systems to study 

the longer term site fidelity of sawfish 

has confirmed these observations and 

also indicates that changes in 

environmental conditions such as 

salinity may be important in driving 

changes in local distribution and, 

therefore, habitat use patterns 

(Simpfendorfer, unpublished data). 

Simpfendorfer and Wiley (2005) 

documented that no encounters 

occurred within habitat in permanent 

freshwater areas. Many encounters 

occur near river mouths or near sources 

of freshwater inflow, and encounter data 

suggest that estuarine habitats may be 

an important factor affecting the species’ 

distribution. Simpfendorfer (2001) 

suggests that smalltooth sawfish occur 

in river mouth areas because of the 

lower salinity, submerged vegetation, or 

abundant prey. We analyzed MML and 

FWRI encounter data from 1998–2008 

for juveniles, and the data indicate the 

majority of the juvenile encounters 

occurred within euryhaline or estuarine 

waters. Euryhaline/estuarine waters are 

highly productive areas that contain a 

variety of food sources for the 

smalltooth sawfish. Mullet, clupeids, 

and various crustacean species that are 

known food sources for the smalltooth 

sawfish are commonly found in 

estuarine areas. 

Juvenile smalltooth sawfish may 

require specific salinity regimes with 

specific freshwater inputs, but, at this 

time, data on specific salinity regime 

requirements for the species do not 

exist. Ongoing studies of habitat use 

patterns of very small and small 

juveniles in the Caloosahatchee River 

are expected to provide more insight 

into the habitat used by or necessary for 

an individual juvenile (less than or 

equal to 79 in (200 cm) in length) 

smalltooth sawfish. At this time, 

however, there are insufficient data 

available to determine whether specific 

salinity ranges are requirements of small 

juveniles. 

Data on large (greater than 79 in (200 

cm) in length) juvenile smalltooth 

sawfish are limited, and more 

information is needed to determine the 

habitat usage patterns and site fidelity 

characteristics of this size class of 

smalltooth sawfish. 

Summary of Comments and Responses 

We requested comments on the 

proposed rule to designate critical 

habitat for the endangered U.S. DPS of 

smalltooth sawfish on November 20, 

2008 (73 FR 70290), and on January 29, 

2009 (74 FR 5141), we reopened the 

comment period until February 13, 

2009. We held two public hearings to 

facilitate public participation, the 

proposed rule was available on our 

regional Web-page, and comments were 

accepted via standard mail, facsimile, 

and through the Federal eRulemaking 

portal. In addition to the proposed rule, 

the draft impact report required under 

Section 4(b)(2) of the ESA was posted. 

We obtained independent peer review 

on both the scientific information in the 

proposed rule and on the Draft 4(b)(2) 

Report (NMFS, 2008). 

We have considered all peer review 

and public comments, and those that are 

responsive to the designation are 

addressed in this final rule and 

discussed in the following summary. 

We have assigned public comments to 

major issue categories and, where 

appropriate, have combined similar 

comments. 

Peer Review Comments 

Comment 1: Two reviewers stated 

NMFS used the best available 

information on the species and also 

stated the areas proposed for 

designation were justified by the 

available data. 

Comment 2: One reviewer noted the 

daily home range area for small 

juveniles was calculated incorrectly for 

small juveniles. The home range value 

of 1–5 km2 equates to 0.386–1.93 mi2. 

Response: We corrected the home 

range value in our discussion in this 

rule. 

Comment 3: One reviewer stated that 

NMFS should revise the critical habitat 

rule if new data identify additional 

nursery areas, discrete areas used by 

other size classes of animals, or mating 

aggregations. 

Response: NMFS will consider 

revising the critical habitat designation 

if new data identify areas containing 

features essential for the conservation of 

the species, or areas in the species’ 

unoccupied range that are essential for 

the conservation of the species. 

Comment 4: A reviewer stated that 

NMFS should monitor freshwater flow 

regimes (salinity fluctuations, dissolved 

oxygen, flow rates), and nutrients, red 

mangroves, and submerged aquatic 

vegetation in the designated areas. 

Response: NMFS is required to 

consult under section 7 of the ESA on 

Federal actions that may affect listed 

species, including the smalltooth 

sawfish, or their designated critical 

habitat. Therefore, NMFS would consult 

under section 7 of the ESA on the effects 

from alterations of freshwater flow 

regimes on the sawfish and its 

designated critical habitat. Ongoing 

research is also investigating habitat use 

and movements of juvenile sawfish in 

relation to salinity regimes. 

Comment 5: A reviewer stated that we 

should consider designating other areas 

that contain the same essential features 

included in the two nursery areas in 

southwest Florida, and specifically 

suggested Tampa Bay and the Indian 

River Lagoon. This peer reviewer stated 

that we did not appropriately consider 

the amount of suitable habitat that 

remains outside of the proposed critical 

habitat areas, specifically within Tampa 

Bay and the Indian River Lagoon, given 

that the species may need additional 

nursery areas in the future for recovery. 

Response: We do recognize that the 

sawfish may need additional nursery 

areas for its recovery, that red 

mangroves and shallow euryhaline 

habitats exist outside the designated 

areas, and that smalltooth sawfish were 

historically common in some of those 

areas (e.g., Indian River Lagoon). 

However, sawfish also historically 

appear to have used areas that do not 

contain mangroves as nursery areas. The 

key conservation function of the critical 


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habitat designation is to facilitate 

recruitment into the adult population by 

protecting juvenile nursery areas. Based 

on the best available data and our 

understanding of what constitutes a 

nursery area for sawfish, the areas 

designated as critical habitat are the 

only areas that are currently nursery 

areas. We cannot predict with any 

certainty what new nursery areas may 

be established by the species. If new 

information identifies nursery areas 

outside of the designated critical 

habitat, NMFS will consider revising 

this rule. 

Comment 6: A reviewer suggested a 

more complete Executive Summary in 

the 4(b)(2) Report that includes the 

conclusions of the Economic and Other 

Relevant Impacts sections of the report. 

Response: We have revised the 

Executive Summary in the Final 4(b)(2) 

Report to include the conclusions of all 

three impact sections of the report. 

Comment 7: A reviewer requested 

more detail on the increased probability 

of recovery of listed species as a result 

of designating critical habitat and 

requested a long-term study of the 

relationship between recovery rates of 

listed species and critical habitat 

designation. 

Response: The commenter’s 

suggestion is noted. NMFS does 

evaluate the recovery progress of listed 

species, including submitting reports to 

Congress every 2 years on the status of 

efforts to develop and implement 

recovery plans for listed species under 

our purview, and on the status of all 

species for which recovery plans have 

been developed under section 4(f)(3)) of 

the ESA. Between October 1, 2006, and 

September 30, 2008, of the 59 domestic 

endangered or threatened species listed 

under the ESA, 22 (37 percent) were 

stabilized or improving; 17 (29 percent) 

were known to be declining; and 20 (34 

percent) were unknown or mixed in 

their status (http://www.nmfs.noaa.gov/ 

pr/pdfs/laws/esabiennial2008.pdf). A 

recent study suggests listed species with 

designated critical habitat for 2 or more 

years may be more than twice as likely 

to have an improving population trend 

and less than half as likely to be 

declining compared to listed species 

without designated critical habitat 

(Taylor et al., 2005). Of the 59 domestic 

listed species under NMFS’ purview, 39 

have designated critical habitat, and 16 

of these species were judged to be stable 

or improving in the 2008 report 

discussed above. Most of these 

designations have not been in place for 

2 years or longer, and it is likely too 

early in the recovery process to judge 

the contribution of critical habitat to the 

recovery of these species. It should also 

be noted that though critical habitat 

protects features essential to a species’ 

conservation from destruction or 

adverse modification by Federal actions, 

critical habitat is not intended to be the 

sole activity that brings about species’ 

recovery. 

Comment 8: A reviewer asked if 

saving the smalltooth sawfish would 

save the local fishing industry and 

whether the rule protects mangroves or 

smalltooth sawfish. 

Response: Our primary goal is to 

support the key conservation objective 

for the species by protecting the 

essential features in its nursery areas. 

The rule is not intended to directly 

protect smalltooth sawfish from harm, 

but rather is intended to promote its 

recovery by preventing destruction or 

adverse modification of the physical 

and biological habitat features essential 

to its conservation that may result from 

Federal actions. The Final 4(b)(2) Report 

considered, in the analysis of other 

relevant impacts, that the critical habitat 

designation is likely to provide 

additional protections to mangrove 

habitat and the fisheries that depend on 

those habitats. The fishing industry 

may, therefore, also benefit from this 

designation. 

Public Comments 

A. Comments on Providing the Public 

Adequate Notice on the Proposed Rule 

Comment 1: We received several 

comments stating we did not provide 

adequate notice for public review and 

comment on the proposed rule. 

Response: NMFS published the 

proposed critical habitat rule for the 

smalltooth sawfish on November 20, 

2008 (73 FR 70290), and requested 

pubic comments by January 20, 2009. 

On December 9, 2008, we published a 

notice in the Federal Register (73 FR 

74681) announcing the dates, times, and 

locations of two public hearings to 

receive public comments on the 

proposed critical habitat rule. In 

addition to the Federal Register notice 

announcing the public hearings, we 

advertised the hearings in relevant local 

newspapers (News-Press of Ft. Myers on 

December 8, 2008; Naples-News on 

December 14, 2008). During the public 

comment period, NMFS received 

several requests to extend the public 

comment period. On January 29, 2009 

(74 FR 5141), NMFS extended the 

public comment period to February 13, 

2009. We believe the public received 

adequate opportunity to review and 

comment on the proposed rule. 

B. Comments on the Available Data for 

the Designation 

Comment 2: Several commenters 

reacted to the statements in the 

proposed rule describing the incomplete 

information on the habitat usage 

patterns of the species, particularly 

adults, and suggested we have 

incomplete information on which to 

base the designation. Another 

commenter suggested we should do 

more research on the species before we 

designate critical habitat. Several 

commenters expressed concern about 

basing the rule on data from 2003 or 

earlier. 

Response: The ESA requires we use 

the best available scientific information 

to support the proposed designation. It 

also provides that we may take up to 1 

additional year after a species is listed, 

if critical habitat is not determinable at 

the time of listing. Beyond that year, 

during which NMFS further studied the 

species’ habitat needs, we may not wait 

to designate critical habitat to conduct 

more research. We used all available 

information sources (literature, research 

data, government agencies, and public 

encounter data) to identify the specific 

areas and the essential features. No 

other sources of data on the species 

were identified during the public 

comment period. In contrast to the lack 

of information on specific habitat usage 

that currently precludes designation of 

critical habitat areas for adult smalltooth 

sawfish, we believe the available 

information provides a sound basis for 

designating nursery areas used by 

juveniles as critical habitat. Finally, the 

rule is based on juvenile encounter data 

from 1998 through the present; a NMFS 

staff member misstated the applicability 

of the ‘‘time of listing’’ provision in the 

statute at one of the public hearings— 

that applies to identifying the occupied 

range of the species. 

Comment 3: A commenter suggested 

we re-evaluate the critical habitat 

designation in 5 years to determine the 

habitat needs for adults. 

Response: We have not identified 

adult aggregation, mating, and/or 

pupping areas, and no information on 

historic aggregation, mating, and/or 

pupping sites exists, but these aspects of 

the species’ life history are being 

investigated by researchers. If 

information on adult smalltooth sawfish 

becomes available which suggests areas 

that may be essential to the conservation 

of the species, we will consider revising 

the critical habitat designation. 

Comment 4: A commenter requested 

information on how the encounter data 

were collected and how far the animals 

travel up the Cape Coral canals. 


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Additionally, the commenter wanted to 

know which canals smalltooth sawfish 

are using. 

Response: Smalltooth sawfish 

encounter data from FWCC and MML’s 

were used to develop the proposed rule. 

Encounter data are reported by the 

public and by researchers. Recreational 

and commercial fishers, boaters, divers, 

and the general public report smalltooth 

sightings and captures to the FWCC and 

MML. The encounter reports may 

include information such as the date, 

location, size of animal, water depth, 

benthic habitat in the area, the type of 

fishing gear used, and photographs, etc. 

Information gathered by researchers is 

similar to what the public reports but 

may include more details about the 

animal and may include specific 

movement information for tagged 

animals. Encounter data and FWCC 

directed research have documented 

smalltooth sawfish use of multiple 

canals within the Cape Coral canal 

system; each canal is not named thus we 

cannot list them specifically. Ongoing 

smalltooth sawfish research conducted 

by the FWCC has shown that tagged 

animals travel deep into the canals and 

may use the canals for months at a time, 

making daily excursions into the 

Caloosahatchee River. Existing 

encounter data support the usage of the 

Cape Coral canal system where it is 

accessible to smalltooth sawfish. 

Comment 5: One commenter 

questioned the credibility of sightings 

and encounter data, reported by 

fishermen, as a basis for the rule. 

Response: There are a number of 

indices of the reliability and suitability 

of encounter and sightings data 

available for this designation. First, the 

encounter reporting programs are 

longstanding and the researchers 

involved have established trust and 

personal relationships with a good 

portion of the fishing community 

involved in reporting encounters or 

recommending to others that they report 

encounters. MML and FWCC only 

include encounter reports in their 

databases when the reports have met 

some measures of credibility, for 

example, if the description of the fish is 

consistent with the morphological 

characteristics of the species. The 

encounter data have also been validated 

in a number of respects by scientific 

research carried out by the organizations 

that maintain the encounter databases. 

Comment 6: Several commenters 

stated they had never seen and/or 

caught a smalltooth sawfish in some of 

the areas (San Carlos Bay and southwest 

Florida) proposed for designation. 

Response: Encounter data, which 

includes reports from recreational and 

commercial fishers, researchers, and 

snorkelers, indicate the species is 

encountered within San Carlos Bay and 

that most encounters of juveniles occur 

in southwest Florida. Sawfish are highly 

endangered benthic fish, and it is not 

surprising that even long-time local 

residents have never seen one. 

C. Comments on Existing Resource 

Protections, Regulatory Burdens, and 

Rulemaking Requirements Generally 

Comment 7: A commenter asked if the 

President’s Executive Order on 

Regulatory Review (74 FR 4435; January 

26, 2009) would stop NMFS from 

publishing the critical habitat rule. 

Response: No, President Obama’s 

Memorandum to the Heads of Executive 

Departments and Agencies, dated 

January 20, 2009, regarding additional 

administration review of rules 

published prior to January 21, 2009, 

does not apply to this rule because the 

timing of the proposed and final 

smalltooth sawfish critical habitat rules 

is mandated under a court-approved 

settlement agreement. 

Comment 8: Several commenters 

stated that existing laws and 

regulations, including State laws, are 

currently in place to protect habitats 

covered by the proposed designation, 

and that an additional layer of 

government regulation should be 

avoided. 

Response: The commenter is correct 

in part. Existing laws and regulations 

are in place to protect marine and 

estuarine habitats, including mangroves. 

However, none of the laws or 

regulations applicable to the habitats 

included in the proposed designation 

provide complete protection to the 

habitats. In a wide variety of 

circumstances, existing laws and 

regulations allow for destruction of 

habitat, and in instances where 

mitigation may be required, off-site and 

out-of-kind mitigation are possible 

outcomes. Additionally, existing laws 

and regulations do not expressly require 

consideration of the conservation needs 

of the smalltooth sawfish in determining 

whether impacts to habitat are allowable 

or mitigations are acceptable. This final 

rule will provide unique additional 

protections to the critical habitat 

features essential to the sawfish’s 

conservation, resulting in project 

modifications where existing laws 

would not require such modifications. 

Comment 9: A commenter stated that 

we did not need to protect habitat for 

the smalltooth sawfish because the 

Florida net ban has eliminated deaths 

from bycatch. 

Response: Florida voters approved a 

constitutional amendment banning the 

usage of most types of inshore nets in 

1995. The net ban is extremely 

important in addressing a major threat 

to smalltooth sawfish, because their 

saws become entangled in the nets, and 

fishers often killed and/or removed the 

saw from captured animals. The net ban 

eliminated a great deal of smalltooth 

sawfish bycatch; however, the species is 

still caught as bycatch in several 

fisheries (shrimp trawling, bottom longline fisheries, etc.). In addition to 

measures to prevent or limit take of 

listed species, the ESA requires NMFS 

to designate areas that meet the statute’s 

definition of critical habitat, with 

discretion to consider excluding certain 

areas from a designation based on 

specific findings about the costs and 

benefits of a designation. As stated in 

the proposed rule, juvenile smalltooth 

sawfish use highly specific nearshore 

areas as nursery areas for the first 

several years of their lives, where 

vulnerable juveniles find protection 

from predators and ample food 

resources for early stage growth. In the 

areas we have identified as existing 

nursery areas, juvenile sawfish need 

several essential physical and biological 

features: red mangroves and shallow, 

euryhaline habitats characterized by 

water depths between the Mean High 

Water line and 3 ft (0.9 m) measured at 

Mean Lower Low Water. These features 

are essential to the conservation of the 

species because they support the key 

conservation function of facilitating 

recruitment of juveniles into the adult 

population. This conservation objective 

is not accomplished by the inshore net 

ban. 

Comment 10: A commenter stated 

they are concerned about the length of 

time it takes to complete section 7 

consultations under the ESA, that 

NMFS takes a long time to complete 

section 7 consultation, and that these 

times will increase with designation of 

critical habitat. 

Response: Federal agencies are 

currently required to consult on actions 

that may affect the fish, including in the 

areas proposed for designation, in order 

to ensure their actions are not likely to 

jeopardize the continued existence of 

the species. Designated critical habitat 

does require a second, distinct analysis 

of potential effects of Federal actions: 

Federal agencies must ensure their 

actions are not likely to destroy or 

adversely modify critical habitat. Our 

analysis of impacts of the designation 

indicates that the designation will not 

require consultations for categories of 

Federal actions that are not already 

subject to consultation to avoid 

jeopardizing the species. Delays can 

occur during the section 7 review 


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process when NMFS is lacking the 

pertinent information needed to 

determine the effects on a species or its 

designated critical habitat. NMFS does 

not expect delays in the section 7 

consultation process if we receive the 

necessary information to complete our 

analysis of the effects on the species 

and/or designated critical habitat. We 

will also work with interested Federal 

agencies to evaluate whether 

streamlined section 7 consultation 

procedures can be adapted for 

evaluating Federal actions that may 

affect the smalltooth sawfish, its 

designated critical habitat, or both. 

Comment 11: A commenter stated that 

since existing critical habitat for the 

American crocodile provides protection 

for the smalltooth sawfish, the proposed 

rule has overlapping protections and 

asked us how we would deal with the 

overlapping protections. 

Response: This is not correct. 

Smalltooth sawfish may use some of the 

same habitats utilized by the American 

crocodile along the Everglades coast, but 

the critical habitat designation and the 

listing protections for the American 

crocodile are established to promote the 

recovery and conservation of that 

species specifically. American crocodile 

designated critical habitat does not 

protect the physical and biological 

features essential for the conservation of 

the smalltooth sawfish. The U.S. Fish 

and Wildlife Service (FWS) has 

jurisdiction over the American 

crocodile, and NMFS has jurisdiction 

over the smalltooth sawfish. NMFS and 

FWS will consult under section 7 of the 

ESA for their respective species even 

though the critical habitat designation 

may over-lap geographically. 

D. Comments on the Critical Habitat 

Boundaries and Areas Included or 

Omitted From the Designation 

Comment 12: One commenter 

suggested we used arbitrary boundaries 

(e.g., roads, county lines, etc.) in 

establishing the unit boundaries and 

suggested we should instead use 

habitat-based boundaries (e.g., creeks 

and mangroves). The commenter also 

suggested we include entire creeks and 

canal systems that are accessible to 

smalltooth sawfish near the proposed 

Charlotte Harbor Estuary Unit. The 

commenter proposed four specific 

changes in this regard: (1) The boundary 

located near the Myakka River should 

be moved up-river where the mangroves 

end at approximately 27°4.500′ N; (2) 

the boundary near Harborview Road, 

U.S. 41, and SR 776 should include 

Shell Creek extending to the dam and 

upriver to 27°4.500′′ N; (3) The southern 

extent of the Charlotte Harbor Estuary 

Unit boundary should be Wiggins Pass/ 

Calcohatchee River instead of the 

Charlotte/Lee County line; and (4) ‘‘back 

bay’’ boundaries should include entire 

creek and canal systems in the Charlotte 

Harbor Estuary Unit. 

Response: We elected not to make the 

requested changes to the unit 

boundaries. The boundaries were 

chosen by first applying the Heupel et 

al. (2007) model for defining nursery 

areas to the juvenile sawfish encounter 

data. After broad areas being used as 

nursery areas were identified, the 

essential physical and biological 

features within these nursery areas were 

identified. The boundaries of the critical 

habitat units were identified in 

accordance with our regulations at 50 

CFR 424.02(c), using reference points 

and lines on topographic maps to 

describe the specific boundaries of the 

nursery areas. Roads, man-made 

structures, and county line or park 

boundaries were used instead of habitat 

boundaries (e.g., extent of red 

mangroves or entire creek systems) 

because they are easily identifiable by 

the public and because they represent 

the boundaries of the nursery areas. 

Comment 13: A commenter suggested 

we consider expanding the critical 

habitat designation to include 

unoccupied areas that could be essential 

to the species’ conservation, and noted 

that the species used to be found in 

coastal areas as far distant from 

peninsular Florida as New York and 

Texas. 

Response: ESA section 3(5)(A)(ii) 

defines critical habitat to include 

specific areas outside the geographical 

area occupied at the time of listing if the 

areas are determined by the Secretary to 

be essential for the conservation of the 

species. Regulations at 50 CFR 424.12(e) 

specify that we shall designate as 

critical habitat areas outside the 

geographical area presently occupied by 

a species only when a designation 

limited to its present range would be 

inadequate to ensure the conservation of 

the species. Habitat-based recovery 

criteria in the recovery plan suggest 

areas outside the current occupied range 

may be important to the species’ 

recovery. However, based on the best 

available information, we cannot 

identify unoccupied areas that are 

currently essential to the conservation 

of the species. If information on 

essential features or habitats for the 

species becomes available, we will 

consider revising this critical habitat 

designation. 

Comment 14: A commenter suggested 

we include Estero Bay to Marco Island 

in the critical habitat designation 

because the area contains the essential 

features, and the areas are connected to 

the Charlotte Harbor Estuary Unit and 

the Ten Thousand Islands/Everglades 

Unit. 

Response: Areas within Estero Bay 

and Marco Island do contain some of 

the essential features described within 

the proposed critical habitat 

designation; however, red mangroves 

are much sparser and salinity is much 

more fully marine than in the 

designated units. We determined that 

this area between the designated units 

does not meet the definition of a nursery 

area for sawfish, and that juvenile 

sawfish are not likely to use the area to 

travel between the two designated 

nursery areas. Juvenile smalltooth 

sawfish are rarely encountered within 

these areas, and juvenile encounters in 

the area do not have a higher density 

than the mean density outside the area. 

Encounter data do not indicate juveniles 

repeatedly use the area over years, and 

no site fidelity pattern exists in the area. 

If new data indicate these areas are 

indeed nursery areas, we will consider 

revising the critical habitat designation. 

Comment 15: A commenter stated the 

scope of the designation is too broad 

and includes habitats that are not 

shallow or near mangrove roots. Two 

other commenters suggested the 

designation should be limited to 

targeted areas where NMFS has 

documented specific use of the areas. 

Response: As stated in the proposed 

rule, the features can be found unevenly 

dispersed throughout the proposed 

critical habitat boundaries. Limits on 

existing mapping methodologies make it 

infeasible to define the specific areas 

more finely than described herein. 

Therefore, there are locations within the 

critical habitat boundaries where the 

essential features do not exist (e.g., deep 

water areas). The regulatory impact of 

the critical habitat designation, 

however, flows entirely from the 

requirement to consult on Federal 

actions that may affect the critical 

habitat’s essential features. If an action 

only impacts locations which do not 

contain either essential feature, the 

action would pose no effect to the 

critical habitat, and no section 7 

consultation would be required. We also 

believe that limiting the designation to 

areas where use has been documented at 

a specific place and time would not be 

an appropriate application of the ESA. 

Single encounter points would not 

encompass the full home ranges used by 

juveniles. Moreover, the ESA requires 

designation of critical habitat containing 

features essential to a species’ 

conservation, and thus contemplates 

inclusion of areas containing features 

necessary for population growth. 


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Further, the available information on 

sawfish almost certainly does not 

document the existence of every 

juvenile using the nursery areas. We 

therefore disagree that the scope is too 

broad: the units are appropriately 

defined as the areas containing (but not 

composed entirely of) the essential 

features, and there is no regulatory 

impact of including embedded locations 

without the essential features. 

E. Comment on Essential Features 

Comment 16: A commenter stated 

they had never seen seagrasses in the 

Cape Coral canals and could not 

understand why NMFS identified 

seagrasses as an essential component of 

the critical habitat. 

Response: Seagrasses are not an 

essential feature of the critical habitat. 

F. Comments on the Draft 4(b)(2) Report 

and the Analysis of Economic Impacts 

Comment 17: One commenter noted 

an error in the Draft 4(b)(2) Report in the 

estimated values for mangrovedependent fish species for 2005. 

Response: NMFS acknowledges that 

these calculations were inaccurate, and 

they have been corrected in the Final 

4(b)(2) Report. The value in the 

‘‘Pounds’’ column label was listed in 

1,000s of pounds but actually 

represented pounds. We removed the 

1,000 from the column, and the column 

now reflects the correct poundage of 

landings. Additionally, the commenter 

noticed an error in the ‘‘Value’’ column 

which also indicated the values were in 

thousands of dollars. We corrected the 

errors in Tables 5, 7, 9, and 11 to reflect 

the correct values for both ‘‘Pounds’’ 

and ‘‘Value.’’ 

Comment 18: Several commenters 

expressed unspecific concerns about 

potential economic impacts on 

communities and quality of life 

expected from the designation. A few 

commenters stated that NMFS did not 

address the economic impacts on the 

marine construction, real estate, and 

residential construction industries in 

the proposed rule and asked why the 

economic impacts cannot be more 

precisely measured. 

Response: The 4(b)(2) Report 

identifies and analyzes the expected 

economic impacts, including monetary 

costs on marine construction activities 

where feasible, associated with the 

proposed rule. Federal guidance on 

estimating the costs and benefits of 

proposed rules allows presenting 

economic impacts in qualitative metrics 

if monetization is not feasible or reliable 

(EO 12866). Administrative costs to 

Federal and third parties (e.g., permit 

applicants) expected to result from ESA 

section 7 consultations required by the 

designation were estimated by 

projecting the number of future 

consultations associated with the 

proposed rule. Projected future costs 

resulting from potential project 

modifications that may be required to 

avoid destruction or adverse 

modification of the designated critical 

habitat cannot be determined with any 

certainty given the uncertainty in, 

among other things, predicting the 

precise location and scope of future 

projects. The total incremental 

administrative costs for Unit 1 are 

estimated to range from $1,039,500 to 

$1,386,000 (depending on complexity of 

the consultation) over the 10-year 

planning period. The total incremental 

administrative costs for Unit 2 are 

estimated to range from $108,000 to 

$144,000 (depending on complexity of 

the consultation) over the 10-year 

planning period. Most of these costs 

will be borne by Federal agencies 

involved in ESA section 7 consultation; 

maximum total projected administrative 

costs to third parties (e.g., permit 

applicants) due to all 85 future 

consultations are estimated to be 

$136,200 to $170,000 over the next 10 

years. The commenters did not provide 

us with specific information to 

determine any other potential future 

economic impacts from the proposed 

rule. We believe the 4(b)(2) Report 

provides the best information on 

predicting future section 7 consultation 

economic costs from the final rule. We 

have also responded to concerns about 

the rule’s potential to impact specific 

existing activities in affected 

communities in the following section. 

Comment 19: One commenter stated 

that the analysis of potential economic 

impacts to single-family dock 

construction/repair projects identified 

in the 4(b)(2) report is inadequate 

because we did not identify costs for 

some of the potential project 

modifications that might be 

recommended to dock projects during 

section 7 consultation. The commenter 

stated that it is inappropriate for NMFS 

to decide not to consider exclusions 

from Unit 1 due to economic impacts in 

the absence of such information. The 

commenter suggested we could estimate 

economic impacts associated with the 

‘‘average percentage decrease in number 

of docks constructed per year due to 

time delays associated with the 

consultation process and as well as the 

percentage decrease in cost for 

construction due to reduced size.’’ 

Response: As we have explained in 

the rule and 4(b)(2) report, specific costs 

that may result from project 

modifications recommended by NMFS 

to avoid destruction or adverse 

modification of critical habitat cannot 

be determined in all instances because 

such costs are highly variable and 

depend on such unknown future 

variables as the specific scope and 

location of future projects. We think the 

commenter’s suggested surrogate for 

future economic impacts associated 

with costs of dock project modifications 

would be too speculative. Further, a 

measure of the costs to third parties 

such as dock permit applicants from 

participation in the consultation process 

is provided in the 4(b)(2) report; this 

would include any costs due to delays. 

As stated in the rule and 4(b)(2) report, 

we believe the information available to 

project the numbers, types, and 

distribution of potential future Federal 

actions that may trigger ESA section 7 

consultation, and identify the types of 

potential project modifications often 

associated with these types of projects, 

provides a reasonable basis for 

evaluating potential economic impacts 

of the designation, even though some of 

the impacts are only qualitatively 

identified. Our assessment projects that 

a limited scope of impacts will result 

from the designation (about 8 

consultations per year in Unit 1). 

Consultation would be required for 

those projects even in the absence of the 

critical habitat designation, to protect 

the sawfish. Finally, the conservative 

approach to the assessment likely 

overestimates numbers of formal 

consultations and project modifications 

that may be required. On these bases, 

we do not believe evidence of economic 

impacts warrants our exercise of our 

discretion to consider excluding areas 

from the designation. 

Comment 20: One commenter stated 

that the rule has the potential to impact 

private property rights in dock/seawall 

replacement permits or new permits, 

and in dredging of canals to the extent 

that may constitute a taking of private 

property. 

Response: The takings implications of 

the rule were evaluated. The rule will 

not result in a physical invasion of 

private property, or a complete denial of 

all use or value of any private property 

interest. Based on the importance of the 

societal interest in designating critical 

habitat for endangered species, and the 

limited nature of impacts to private 

property that may result from the 

designation identified in the 4(b)(2) 

report, we determined that the 

designation will not result in a 

regulatory taking of private property. 

Comment 21: One commenter stated 

that we did not justify nor provide 

documentation for our conclusion that 

secondary costs to local or regional 


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economies are unlikely to result from 

the designation. 

Response: We disagree. We believe 

the 4(b)(2) impacts report supports our 

determination that impacts to the scale 

that affects local or regional economies 

are not likely to result from the 

designation. We do not expect 

measurable reductions in regional 

revenues or employment or growth to 

result from the types of project 

modifications that may be required to 

federally permitted actions to avoid 

destruction or adverse modification of 

critical habitat. We received no 

information to the contrary from this or 

other commenters, including Federal 

agencies most likely to be required to 

consult with NMFS as a result of the 

designation. We contacted relevant 

planning agencies in developing our 

impacts report, and received no reports 

of planned projects or developments 

over the next 10 years that would 

require ESA consultation and that 

would be of a scale to have impacts on 

local or regional economies if they 

required modifications due to the 

critical habitat designation. 

G. Comments on Potential Impacts of 

the Designation on Ongoing Activities 

Comment 22: The U.S. Army Corps of 

Engineers (ACOE) requested we exclude 

authorized Federal channels (Gordon 

Pass/Naples to Big Marco, Key West 

Harbor, Everglades Harbor, Largo 

Sound, Charlotte Harbor, Key West 

Bight & Garrison Bight, Ft. Myers Beach/ 

Matanzas Pass, and the Intracoastal 

Waterway Caloosahatchee River to 

Anclote River) and existing residential 

canals from the critical habitat 

designation. Two municipalities also 

requested that residential canals and 

waterways in their boundaries be 

excluded where these systems are 

maintained at depths greater than 3 ft. 

(0.9 m) at MLLW, and do not provide 

the essential features. Several 

commenters requested exemptions for 

dredging of channels or canals in 

existence at the time of the designation. 

Response: Exclusions from a critical 

habitat designation may be proper 

where the benefits of exclusion 

outweigh the benefits of inclusion of 

areas in a designation. Exclusions are 

not applicable to areas, like those 

proposed by the ACOE, which will not 

be impacted by the designation because 

they do not provide the essential 

features of critical habitat and will not 

require section 7 consultation for 

activities in those areas. As stated in the 

proposed rule, all existing man-made 

structures such as boat ramps, docks, 

pilings, maintained channels or marinas 

that do not provide the essential 

features that are essential to the species’ 

conservation are not part of this 

designation. The three existing federally 

authorized channels located within the 

proposed designation are the Charlotte 

Harbor, Ft. Myers Beach (Matanzas 

Pass), and portions of the Intracoastal 

Waterway in the Caloosahatchee River. 

These existing Federal channels have 

been authorized to be dredged and 

maintained to depths greater than 3 ft 

(0.9 m) at MLLW. The channels may 

contain the euryhaline component of 

the shallow habitat essential feature, but 

they do not contain the water depth 

component, or the red mangrove 

essential feature, and thus would not be 

impacted by the designation. This also 

applies to residential canals, or portions 

of these canals, that have been 

authorized and dredged and maintained 

to depths greater than 3 ft (0.9 m) at 

MLLW. However, it is also important to 

note that the edges or banks of 

maintained channels or canals outside 

the footprint authorized to be dredged 

and maintained, may provide the 

essential features. 

Comment 23: The ACOE requested a 

description of what is considered a 

maintained channel. 

Response: We consider a maintained 

channel to be a channel that is dredged 

periodically, as necessary, to maintain 

its original authorized dimensions 

(depth, width, etc.). 

Comment 24: Several commenters 

expressed concern that the designation 

of smalltooth sawfish critical habitat 

would prohibit marine construction or 

maintenance of existing private or 

public infrastructure (i.e., maintenance 

dredging, docks, piers, jetties, boat 

ramps and seawalls etc.). 

Response: If a proposed project 

authorized, funded, or carried out by a 

Federal agency includes construction of 

a new structure, and the structure may 

affect a listed species or its designated 

critical habitat, the standard ESA 

section 7 consultation requirement 

would apply. Proposed projects may 

require modifications, if they would 

destroy or adversely modify critical 

habitat. Projects would only be 

prohibited if there were no 

modifications or alternatives to the 

proposed project that would avoid 

destruction or adverse modification of 

critical habitat. If future projects in the 

areas covered by the designation are 

similar in nature as past activities, based 

on our analysis of impacts, we believe 

modifications should be available to 

allow projects to be implemented. 

Comment 25: The ACOE requested an 

exemption from the rule for activities 

that are managed under the 

Comprehensive Everglades Restoration 

Program (CERP) program in the 

proposed areas because water 

discharges from Lake Okeechobee may 

be necessary when water levels pose a 

threat to property and human lives, and 

responding to this type of emergency 

could be impeded by having to consult 

under the ESA. 

Response: The essential features in 

the proposed critical habitat areas may 

be affected by future and current 

activities authorized and/or funded 

through the CERP program. Federal 

agencies are required to consult under 

section 7 of the ESA to ensure their 

actions are not likely to jeopardize the 

continued existence of listed species or 

result in destruction or adverse 

modification of their critical habitat. 

CERP projects like those described by 

the commenter may affect the 

designated critical habitat by, for 

example, altering the euryhaline nature 

of the shallow habitat areas included in 

the designated units. Future CERP 

projects may also benefit the species by 

restoring habitats that may be utilized 

by smalltooth sawfish. We believe the 

section 7 consultation process provides 

the best process for evaluating effects 

from future and ongoing CERP 

activities, and there are a number of 

mechanisms that will allow 

consultation without impeding the 

ACOE’s response to water level 

emergencies, such as emergency 

consultations or programmatic 

consultations. The ESA allows for 

particular areas to be excluded from a 

critical habitat designation on the basis 

of economic, national security, or other 

relevant impacts; it does not provide for 

exempting classes of activities from 

consultation requirements. Based on the 

information provided by the ACOE on 

this issue, NMFS cannot identify a basis 

for excluding critical habitat areas from 

the designation based on potential 

future CERP and Lake Okeechobee 

discharge activities. 

Comment 26: A few commenters 

stated that residential canals and 

waterways should be excluded from 

critical habitat designation if these canal 

systems are not accessible to the species 

because of water control structures such 

as weirs and dams. 

Response: As stated in the proposed 

rule, areas behind water control 

structures that are not accessible to 

smalltooth sawfish are not part of the 

designation. Areas located within 

existing canals or waterways that are not 

accessible to smalltooth sawfish because 

access is prohibited by a weir or dam in 

existence at the time of the designation 

are not part of the designation even 

though they may be located within the 

critical habitat boundaries; installation 


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of new weirs or dams in the future may 

require section 7 consultation under the 

ESA if a Federal permit is required for 

the structure and installation of the 

structure could affect the essential 

features of sawfish critical habitat. 

Comment 27: Several commenters 

expressed concerns that the designation 

of critical habitat would result in 

restriction on boating and fishing 

activities and other public use of 

waterways within the critical habitat 

boundaries. 

Response: Nothing in the rule states 

that boater access or fishing activities 

will be restricted within smalltooth 

sawfish critical habitat. As stated in the 

proposed rule, the primary impacts of a 

critical habitat designation result from 

the ESA section 7(a)(2) requirement that 

Federal agencies consult with NMFS to 

ensure their actions are not likely to 

result in destruction or adverse 

modification of critical habitat. 

Furthermore, a critical habitat 

designation does not result in the 

creation of closed areas, preserves, or 

refuges. There are no individual 

prohibitions on any activities within 

critical habitat. The transit through or 

anchoring of a vessel within designated 

critical habitat is not prohibited. 

Additionally, the designation of critical 

habitat does not create any closed 

fishing areas. Recreational boating and 

fishing would only be affected by the 

designation if the activity involved 

requires a Federal permit of some kind 

and the permitted activity has the 

potential to adversely affect one of the 

essential features on which the 

designation is based, red mangroves or 

shallow, euryhaline coastal habitats. 

Comment 28: NMFS received 

multiple comments requesting that the 

commercial aquaculture production of 

shellfish be excluded from the 

designation of critical habitat. 

Additionally, commenters expressed 

concern that the harvesting or culturing 

of shellfish was not considered in 

NMFS’ economic analysis. 

Response: As discussed in response to 

Comment 22, particular areas may be 

excluded from a designation on the 

basis of economic, national security, or 

other relevant impacts. The ESA does 

not provide for exempting classes of 

activities from the requirements of 

section 7 applicable to designated 

critical habitat. Although we have no 

past record of section 7 consultation 

regarding Federal permitting of 

commercial shellfish aquaculture 

activities, the commenters acknowledge 

that Federal permits may be required for 

placement of aquaculture materials in 

navigable waters. Thus, we have added 

a discussion in the Final 4(b)(2) Report 

regarding shellfish aquaculture and one 

anticipated future formal section 7 

consultation with the ACOE for these 

activities that may occur in designated 

critical habitat for the smalltooth 

sawfish. Additionally, the commercial 

shellfish aquaculture may occur in areas 

that do not provide the critical habitat 

features. Information provided by one 

commenter suggests that a majority of 

these actions take place in water depths 

greater than 3 ft (0.9m) at MLLW. 

Therefore, they do not contain the water 

depth component of the essential 

features and would not be affected by 

the designation. In areas where critical 

habitat features are present and may be 

impacted by a proposed activity, we 

believe that the section 7 consultation 

process is the appropriate mechanism 

for evaluating effects to proposed 

critical habitat resulting from these 

activities. Based on our impacts analysis 

for the single projected future 

consultation for hard clam aquaculture 

activities, we did not find a basis for 

exercising our discretion to consider 

excluding any areas from the 

designation due to impacts on these 

activities. We expect the potential 

consultation administrative costs to 

increase by $18,000 for this formal 

consultation. We cannot determine the 

specific modification costs that may be 

associated with this consultation since 

we do not know the future locations and 

specific habitat conditions or potential 

project sites. We expect project 

modifications may involve project 

relocations to deeper water and/or 

monitoring. 

Comment 29: One commenter stated 

that mangrove removal should not be 

permitted within designated critical 

habitat. 

Response: The rule does not prohibit 

mangrove removal per se. The proposed 

rule requires Federal agencies to consult 

under section 7 of the ESA for activities 

occurring within proposed critical 

habitat that may affect the essential 

features including, but not limited to, 

red mangrove impacts. If activities that 

involve removal of mangroves require a 

Federal permit or use Federal funding, 

the effect of that mangrove removal will 

be evaluated during section 7 

consultation to determine whether the 

proposed removal can and should be 

modified to avoid adversely affecting or 

destroying or adversely modifying 

critical habitat. Not every adverse 

impact on the essential features of 

designated critical habitat will 

constitute destruction or adverse 

modification of critical habitat; whether 

an adverse impact rises to that level 

depends on factors including, but not 

limited to, the type of project, the area, 

the usage by sawfish, the nature and 

extent of the impacts, the nature of 

critical habitat in areas adjacent to the 

project, etc. 

Comment 30: One commenter wanted 

to know how the designation of critical 

habitat would affect an existing ‘‘blanket 

permit’’ received from the ACOE to 

remove vegetation for seawall 

installation within Cape Coral interior 

canals. 

Response: Our regulations at 50 CFR 

402.16 require reinitiation on completed 

consultations if critical habitat is 

designated that may be affected by an 

ongoing action covered by a completed 

consultation. Thus, the ACOE may 

reinitiate section 7 consultation on the 

existing federally authorized activities if 

ongoing or future actions covered by the 

permit to which the commenter is 

referring may affect the sawfish’s critical 

habitat features. 

Summary of Changes From the 

Proposed Critical Habitat Designation 

Based on the comments received and 

our review of the proposed rule, we 

have made the following changes from 

the proposed rule and Draft 4(b)(2) 

Report to the final rule and its Final 

4(b)(2) Report. 

1. We have corrected the error in the 

pounds and values associated with the 

‘‘Commercial Landings of Florida 

Mangrove-Dependent Species’’ in 

Tables 5, 7, 9, and 11 in the 4(b)(2) 

report. See Comment 17 for an 

explanation of the change. 

2. We have increased the number of 

potential future section 7 consultations 

for general permits issued by the ACOE 

by one to account for a consultation on 

Florida’s shellfish aquaculture program. 

Additionally, we have changed the 

administrative costs of future 

consultations and acknowledged that 

project modification costs may be 

associated with the consultation. 

3. We have corrected the home range 

values for small juveniles identified by 

a peer reviewer. 

4. We clarified critical habitat 

boundaries by inserting additional roads 

and text to the location of the 

boundaries. 

Critical Habitat Identification and 

Designation 

Critical habitat is defined by section 

3 of the ESA as ‘‘(i) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed in 

accordance with the provisions of 

section 1533 of this title, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 


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considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of section 1533 of this title, 

upon a determination by the Secretary 

that such areas are essential for the 

conservation of the species.’’ This 

definition provides us with a step-wise 

approach to identifying areas that may 

be designated as critical habitat for the 

endangered smalltooth sawfish. 

Geographical Area Occupied by the 

Species 

The best available scientific and 

commercial data identify the 

geographical area occupied by the 

smalltooth sawfish at the time of listing 

(April 1, 2003) as peninsular Florida. 

Based on our regulations, we interpret 

‘‘geographical area occupied’’ in the 

definition of critical habitat as the range 

of the species at the time of listing (45 

FR 13011; February 27, 1980). The range 

was delineated at the time of listing 

from data provided by existing literature 

and encounter data. Because only a few 

contemporary encounters (one in 

Georgia, one in Alabama, one in Texas, 

and one in Louisiana) have been 

documented outside of Florida since 

1998, we consider peninsular Florida to 

be the species’ occupied range at the 

time of listing. At this time, we do not 

consider the limited observations 

outside of Florida as indicating that the 

species has re-established either its 

occupation of Gulf coast waters or its 

seasonal migrations up the east coast of 

the U.S. outside of Florida. 

Specific Areas Containing Physical or 

Biological Features Essential to 

Conservation 

The definition of critical habitat 

further instructs us to identify the 

specific areas on which are found the 

physical or biological features essential 

to the species’ conservation. Our 

regulations state that critical habitat will 

be defined by specific limits using 

reference points and lines on standard 

topographic maps of the area, and 

referencing each area by the State, 

county, or other local government unit 

in which it is located (50 CFR 

424.12(c)). 

According to the definition of critical 

habitat, the physical and biological 

features essential to conservation must 

be identified (hereafter also referred to 

as ‘‘essential features’’). Section 3 of the 

ESA (16 U.S.C. 1532(3)) defines the 

terms ‘‘conserve,’’ ‘‘conserving,’’ and 

‘‘conservation’’ to mean: ‘‘to use, and 

the use of, all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to this 

chapter are no longer necessary.’’ Our 

regulations at 50 CFR 424.12(b) provide 

guidance as to the types of habitat 

features that may be used to describe 

critical habitat. 

The recovery plan developed for the 

smalltooth sawfish represents the best 

judgment about the objectives and 

actions necessary for the species’ 

recovery. We reviewed the recovery 

plan’s habitat-based recovery objective 

for guidance on the habitat-related 

conservation requirements of the 

species. This objective identifies the 

need to protect and/or restore 

smalltooth sawfish habitats and 

discusses adult and juvenile habitats 

separately. Habitats, especially those 

that have been demonstrated to be 

important for juveniles, must be 

protected and, if necessary, restored. 

Protected, suitable habitat throughout 

the species’ range will be necessary to 

support recruitment of young 

individuals to the recovering 

population. Without sufficient habitat, 

the population is unlikely to increase to 

a level associated with low extinction 

risk and delisting. 

The recovery plan also identifies 

specific recovery criteria that must be 

met to satisfy each objective. As stated 

in the plan, adult habitat-based recovery 

criteria for the species require the 

identification and protection of adult 

aggregation, mating, and/or pupping 

areas. Information on historic 

aggregation, mating, and/or pupping 

sites does not exist. Currently, no 

aggregation or mating areas have been 

identified for adults. Additionally, no 

information is available on specific 

pupping locations for gravid females. 

Tracking data on gravid females is 

lacking, but newborn juveniles still 

possessing their protective sheaths and 

newly pupped animals have been 

documented close to shore. Encounter 

and site fidelity data suggest juveniles 

are pupped in these areas, but this has 

not been validated. No known specific 

areas where adults perform any 

particular function, including feeding, 

are known. Adults are considered 

opportunistic feeders and forage on a 

variety of fish and crustacean species. 

Based on the available information on 

the habitat usage patterns of adults, we 

cannot identify physical or biological 

features essential to the species’ 

conservation, or identify any areas on 

which such features may be found. 

In contrast to the paucity of 

information available on adult 

smalltooth sawfish, more detailed 

information on habitat usage patterns of 

juveniles is available, and more specific 

habitat-based recovery criteria are 

identified in the recovery plan. The 

habitat-based recovery criterion for 

juveniles identifies mangrove 

shorelines, non-mangrove nursery 

habitats, and freshwater flow regimes as 

important features for juveniles. As 

stated earlier, the habitat-based recovery 

objective for the species focuses on 

protecting areas that have been 

identified as important for juveniles 

(i.e., nurseries). This objective also 

stresses the need to protect suitable 

habitats for juveniles to support their 

recruitment into the adult population. 

Juveniles are especially vulnerable to 

predation and starvation (Simpfendorfer 

and Wiley, 2005). Protection of the 

species’ nurseries is crucial because the 

rebuilding of the population cannot 

occur without protecting the source 

(juvenile) population and its associated 

habitats. The recovery plan states that 

the recovery of the smalltooth sawfish 

depends on the availability and quality 

of nursery habitats and that protection 

of high-quality nursery habitats located 

in southwest Florida is essential to the 

species. 

We conclude that facilitating 

recruitment into the adult population by 

protecting the species’ juvenile nursery 

areas is the key conservation objective 

for the species that will be supported by 

the designation of critical habitat. 

As stated in the recovery plan, 

smalltooth sawfish, like many sharks 

and rays, use specific habitats 

commonly referred to as nurseries or 

nursery areas. The recovery plan does 

not identify specific locations for 

nursery areas but does state that 

protecting nursery areas within 

southwest Florida is important to the 

recovery of the species. Nursery areas in 

addition to those in southwest Florida 

are also identified as important for 

recovery but locations of these 

additional areas were not specified. 

Thus, to identify specific areas that may 

meet the definition of critical habitat, 

we focused on specifically defining 

what constitutes a ‘‘nursery’’ area for 

smalltooth sawfish. We then identified 

those physical or biological features that 

are essential to the conservation of the 

species because they provide nursery 

area functions to the species in these 

areas. 

We evaluated information in the 

recovery plan, historical information on 

habitat use by sawfish, and available 

encounter data and scientific literature, 

as well as sought expert opinion, to 

determine where or what constitutes a 

‘‘nursery area’’ for the species. 

Historical information on the species 

only provides limited, mostly anecdotal, 

information on the location of juvenile 


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animals and does not discuss specific 

habitat usage patterns for them. 

Historical information indicates that 

juveniles were found in the lower 

reaches of the St. Johns River, the Indian 

River Lagoon, southwest Florida, and in 

areas along the Gulf coast between 

Florida and Texas. Using historic 

location information alone would not 

provide a reasonable basis for 

identification of nursery areas, given the 

qualitative nature of the information. 

Further, because most of these areas 

have been so physically altered, 

conditions present historically may not 

be present today, and thus features that 

may have provided nursery area 

functions in the past may be absent. 

We then reviewed juvenile encounter 

data from the MML and FWRI databases 

to see whether the data alone indicates 

the existence of nursery areas. In 

summary, juvenile sawfish have been 

encountered in the Florida Panhandle, 

the Tampa Bay area, in Charlotte Harbor 

and the Caloosahatchee River, 

throughout the Everglades region and 

Florida Bay, the Florida Keys, and in 

scattered locations along the east coast 

of Florida south of the St. Johns River. 

However, apart from the Charlotte 

Harbor, Caloosahatchee River, and Ten 

Thousand Islands/Everglades (TTI/E) 

areas, many of these encounters are 

represented by a single individual in a 

single year. 

Heupel et al. (2007) are critical of 

defining nursery areas for sharks and 

related species such as sawfish based 

solely on the presence of single 

occurrences of individual juvenile fish. 

Instead, these authors argue that nursery 

areas are areas of increased productivity 

which can be evidenced by natal 

homing or philopatry (use of habitats 

year after year) and that juveniles in 

such areas should show a high level of 

site fidelity (remain in the area for 

extended periods of time). Heupel et al. 

(2007) propose that shark nursery areas 

can be defined based on three primary 

criteria: (1) Juveniles are more common 

in the area than other areas, i.e., density 

in the area is greater than the mean 

density over all areas; (2) juveniles have 

a tendency to remain or return for 

extended periods (weeks or months), 

i.e., site fidelity is greater than the mean 

site fidelity for all areas; and (3) the area 

or habitat is repeatedly used across 

years whereas other areas are not. 

Scattered and infrequent occurrences of 

juveniles may indicate a lack of features 

that provide the necessary functions of 

a nursery area, and an area with only 

scattered or infrequent occurrences is 

not viewed by the authors as 

constituting a nursery area. Heupel et al. 

(2007) do not assume that that all sharks 

have nursery areas. The authors discuss 

that size-at-birth, rate of growth, time to 

maturity, litter size and frequency of 

breeding may be important factors 

dictating whether a shark species 

utilizes a nursery or not. Shark species 

with high growth rates, early maturity, 

and annual reproduction may not 

benefit as much from utilizing a nursery 

area. In contrast, the authors predict that 

species that have small size at birth and 

slow juvenile growth rates may be more 

likely to utilize nursery areas because 

they may be more susceptible to 

juvenile predation. We believe this 

paper provides the best framework for 

defining a ‘‘nursery area’’ for the 

smalltooth sawfish because they are 

small at birth, slow to mature, and 

existing data on tracked juveniles 

indicates their limited movements and 

ranges are directed toward avoiding 

predation by sharks foraging in deeper 

waters. 

Using the Heupel et al. (2007) 

framework, we evaluated available 

juvenile encounter data for patterns in 

juvenile density, site fidelity, and repeat 

usage over years. Encounter data 

indicate three types of distributions of 

individual juvenile sawfish. The first 

group consists of scattered or single 

encounters. Encounters occurring in 

areas north of Charlotte Harbor, 

including a few in the panhandle of 

Florida and along the east coast of 

Florida, are included in this group. 

Encounters in these areas were scattered 

individual encounters, and no 

indication of repeat or multiple use of 

an area was evident. The second group 

of encounters consists of encounters 

that had multiple individuals in an area, 

but these encounters were 

geographically scattered and not 

repeated over years. These encounters 

occurred in the Florida Keys. 

Encounters in this group were located 

on different sides of various Keys, and 

no consistent or continuous pattern of 

repeat usage over years could be 

identified. In fact, in 2008, juvenile 

encounters were largely lacking 

throughout much of the Keys. The third 

group of encounters exhibit repeat usage 

of the same location by both single and 

multiple individuals, notably higher 

density of encounters than the other 

groups, and usage occurring year after 

year. These encounters occurred in 

areas from Charlotte Harbor south 

through the Everglades and Florida Bay. 

Based on this analysis, the juvenile 

encounters in the third grouping 

discussed above, from Charlotte Harbor 

through the Everglades, are the only 

encounters that suggest these areas meet 

the nursery area criteria set forth by 

Heupel et al. (2007). Juvenile sawfish 

are more commonly encountered in 

these areas than in other areas, i.e., 

density in the area is greater than the 

mean density over all areas, and the area 

is repeatedly used across years, whereas 

other areas are not. Available 

information about site fidelity of 

juveniles is limited and does not allow 

quantitative comparisons among the 

apparent nursery areas and all other 

areas. However, as discussed above, 

available information indicates that 

small and very small juveniles show 

high fidelity to shallow nearshore areas 

where they have been acoustically 

tracked. Data from juveniles tracked in 

the TTI/E area indicate they exhibit site 

fidelity and residency patterns between 

15 and 55 days (Wiley and 

Simpfendorfer, 2007). Tracking data 

also suggest that juveniles exhibit 

specific movement patterns to avoid 

predation. A juvenile tracked in the 

Everglades National Park (ENP) in the 

Shark River spent its time moving 

between a shallow mud bank during 

low tide and mangrove roots during 

high tide (Simpfendorfer, 2003). 

Tracking data in Mud Bay (ENP) and 

Faka Union Bay (TTI) indicate juveniles 

remain in very shallow waters (0.9 ft 

(0.3 m)) over several weeks. Tracking 

data in the Charlotte Harbor Estuary is 

limited to the Caloosahatchee River and 

its adjacent canals. Juvenile tracking 

data from a 60 in (153 cm) juvenile in 

this area indicates that the animal 

remained within water depths less than 

3 ft (0.9 m) along a highly modified 

shoreline (Simpfendorfer, 2003). 

Tracking data indicate the animal spent 

the majority of its time within manmade canals and adjacent to docks and 

marinas within the river. 

Juvenile encounters outside of the 

area between Charlotte Harbor and the 

Everglades and Florida Bay do not fit 

the Heupel et al. framework and are not 

considered nursery areas at this time. 

Anecdotal information indicates that 

juvenile size animals have been 

encountered throughout portions of 

their historic range, and our recovery 

plan indicates that the establishment of 

nursery areas outside of southwest 

Florida is necessary for the species to 

recover. However, we cannot determine 

at this time the temporal or spatial 

distribution of future sawfish nursery 

areas. To more specifically delineate the 

boundaries of the nursery area or areas, 

we used Geographical Information 

System (GIS) software to map the 

density of all juvenile (length less than 

or equal to 200 cm) encounters (MML 

and FWRI) located along peninsular 

Florida within 500 m of land, 

documented between the years of 1998– 


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2008, with all years combined. Two 

density maps were generated to 

determine the mean density for all 

encounters and the density for all 

encounters excluding the research 

encounters. We used 1 km2 density 

grids (same grid size and locations used 

by Simpfendorfer (2006)) to determine 

density levels and distributions. 

Juvenile densities were very similar 

between the two maps. However, to 

remove any bias from the research 

efforts, we used the juvenile density 

map excluding research effort. The 

overall nursery area between Charlotte 

Harbor and Florida Bay breaks naturally 

into two areas between Ten Thousand 

Islands and the Caloosahatchee River, 

based on a long stretch of sandy beach 

habitat in the Naples area that is lacking 

encounters with densities greater than 

the mean density overall. Next we 

mapped juvenile encounters in these 

two areas by year (1998–2008), to verify 

where repeat usage occurred over years. 

This produced several groupings of 1 

km2 grids with higher mean juvenile 

densities compared to mean juvenile 

density throughout peninsular Florida: 

1 grouping within Charlotte Harbor, 1 

grouping encompassing the 

Caloosahatchee River, and 3 groupings 

from the Ten Thousand Islands area 

through Florida Bay. We do not believe 

either the Charlotte Harbor Estuary or 

the TTI/E nursery areas should be 

subdivided into multiple smaller 

nursery areas for several reasons. First, 

the Heupel et al. (2007) framework does 

not indicate whether or how discrete 

nursery areas within a large area of 

juvenile use might be identified. 

Second, our knowledge about juvenile 

sawfish movements and ranges is very 

limited. Third, both areas consist of 

interconnected environmental systems 

and no environmental barriers exist to 

prohibit juvenile sawfish movement 

throughout the system. Finally, limiting 

nursery area boundaries to discrete 

habitat grids represented only by past 

encounters with juveniles would not 

best serve the conservation objective of 

facilitating population growth through 

juvenile recruitment. The specific 

boundaries of the two nursery areas 

were then derived by locating the 

nearest publicly identifiable boundary 

(e.g., boundaries of established parks or 

preserves) or structure external to the 

outermost boundary of the juvenile 

density grids where the mean density is 

greater than the density in the 

surrounding areas. We identified 

reference points and lines on standard 

topographic maps of the areas to 

describe the specific boundaries of the 

nursery areas. The Charlotte Harbor 

Estuary nursery area includes Charlotte 

Harbor, Gasparilla Sound, Pine Island 

Sound, Matlacha Pass, San Carlos Bay, 

Estero Bay, and the Caloosahatchee 

River in Charlotte and Lee Counties. 

The nursery area is bounded by the 

Peace River at the eastern extent of the 

mouth of Shell Creek and the northern 

extent of the Charlotte Harbor Preserve 

State Park. At the Myakka River the 

nursery area is bounded by the SR–776 

Bridge, in Gasparilla Sound by the SR– 

771 Bridge. The COLREGS–72 lines 

between Gasparilla Island, Lacosta 

Island, North Captiva Island, Captiva 

Island, Sanibel Island, and the northern 

point of Estero Island are used as the 

coastal boundary for the nursery area. 

The southern extent of the area is the 

Estero Bay Aquatic Preserve, which is 

bounded on the south by the Lee/Collier 

County line. Inland waters are bounded 

at SR–867 (McGregor Boulevard) from 

Punta Rassa Road to SR–80 near Fort 

Myers, then by SR–80 (Palm Beach 

Boulevard) to Orange River Boulevard, 

then by Orange River Boulevard to 

Buckingham Road, then by Buckingham 

Road to SR–80, and then following SR– 

80 until it is due south of the Franklin 

Lock and Dam (S–79), which is the 

eastern boundary on the Caloosahatchee 

River and a structural barrier for sawfish 

access. Additional inland water 

boundaries north and west of the lock 

are bounded by North Franklin Lock 

Road to North River Road, then by 

North River Road to SR–31, then by SR– 

31 to SR–78 near Cape Coral, then by 

SR–78 to SR–765, then by SR–765 to 

US–41, then by US–41 to US–17 

(Marion Avenue) in Punta Gorda, then 

by US–17 to Riverside Drive, and then 

by Riverside Drive to the eastern extent 

of the Peace River. From the northern 

extent of the Charlotte Harbor Preserve 

State Park, inland waters are bounded 

westward along that extent to Harbor 

View Road, then by Harbor View Road 

to US–41, then by US–41 to SR–776, 

then by SR–776 to the Myakka River 

Bridge. The Charlotte Harbor nursery 

area is graphically displayed at the end 

of this document. 

The Ten Thousand Islands/Everglades 

(TTI/E) nursery area is located within 

Collier, Monroe, and Miami-Dade 

Counties, Florida. The Everglades 

nursery area includes coastal and 

inshore waters within Everglades 

National Park (ENP), including Florida 

Bay, in the vicinity of Everglades City, 

within the Cape Romano-Ten Thousand 

Islands Aquatic Preserve (AP), and 

within the portion of Rookery Bay AP 

south of SR–92. The boundaries match 

the portion of Rookery Bay AP south of 

SR–92, and the Cape Romano-Ten 

Thousand Islands AP. The nursery area 

boundaries closely match the ENP 

boundaries with the following two 

exceptions: (1) The nursery area 

boundary connects points 55 and 57 of 

the critical habitat map for the ENP/TTI 

Unit, which extend beyond the ENP 

boundary to include accessible nursery 

areas; and (2) The nursery area 

boundary is located inside the ENP 

boundary between points 77 and 2 

illustrated on the critical habitat map, 

omitting the northeastern portion of the 

ENP. The area is omitted because it is 

not accessible to sawfish. The TTI/E 

nursery area is graphically displayed at 

the end of this document. 

Having identified the nursery areas, 

we next identified the physical or 

biological features found in these areas 

that are essential to the species’ 

conservation because they provide 

nursery area functions to the sawfish. 

Simpfendorfer (2006) analyzed 

MML’s smalltooth sawfish encounter 

data to determine the importance of 

habitat factors to juveniles less than 79 

in (200 cm) in length. Depth data are 

consistently reported by fishers and are 

accurately reported because most fishers 

use depth finders, so depth data were 

extracted from the encounter database. 

Simpfendorfer examined the proximity 

of encounters to habitat features that 

could be evaluated from geographic 

information system (GIS) databases. 

These features were: mangroves (GIS 

mangrove coverages do not distinguish 

between mangrove species), seagrasses, 

freshwater sources, and the shoreline. 

Simpfendorfer (2006) used GIS 

shapefiles for the features to determine 

the shortest distance from the encounter 

to the feature. The encounter data were 

converted to encounter density by 

gridding the data, and the results of the 

analysis were then used in a habitat 

suitability model. The model indicates 

that water depths less than 3 ft, 

mangrove buffers or shorelines, and 

euryhaline habitat areas (areas with 

wider salinity ranges and receiving 

freshwater input) have the strongest 

correlation with juvenile smalltooth 

sawfish encounters. Additionally, most 

encounters were documented within a 

distance of 1641 ft (500 m) from shore. 

The Simpfendorfer (2006) model 

suggests that areas of high suitability for 

juvenile sawfish contain all three of 

these features. Large areas coded as 

‘‘highly suitable’’ habitat for juveniles 

are located in the areas we determined 

meet the Heupel et al. (2007) framework 

criteria for a nursery area, as applied to 

the sawfish. 

Based on the natural history of the 

species, its habitat needs and the key 

conservation objective of protecting 


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juvenile nursery areas, two physical and 

biological features are identified as 

essential to the conservation of the 

smalltooth sawfish because they provide 

nursery area functions. The two features 

are: red mangroves and shallow 

euryhaline habitats characterized by 

water depths between the Mean High 

Water line and 3 ft (0.9 m) measured at 

Mean Lower Low Water (MLLW). As 

discussed above, the prop root system 

and the location of red mangroves (close 

to shore), and shallow water depths 

provide refuge from predators. Red 

mangroves and shallow mud or sand 

bank euryhaline habitats are also highly 

productive and provide ample, diverse 

foraging resources. Among 

elasmobranchs, smalltooth sawfish are 

one of the few species known to inhabit 

euryhaline habitats, which may provide 

several benefits for the species. 

Euryhaline habitats are very productive 

environments that support an 

abundance and variety of prey resources 

that can only be accessed by species that 

inhabit their systems. Additionally, the 

risk of predation may be reduced in 

these euryhaline habitats because very 

few species of sharks (potential 

predators) are capable of inhabiting 

these habitats. 

Based on the best available 

information, we conclude red 

mangroves and adjacent shallow 

euryhaline habitats and the nursery area 

functions they provide facilitate 

recruitment of juveniles into the adult 

population. Thus, these features are 

essential to the conservation of the 

smalltooth sawfish. While some studies 

cite 1.0 meter as the preferred depth 

limit, others (Simpfendorfer 2006), cite 

3.0 ft. For this rule, the water depth 

feature will be defined as 3 ft (0.9 m) 

because the NOAA Navigational Charts 

depth contour lines and most GIS 

databases use English units of measure. 

Based upon the best available 

information, we cannot conclude that 

any other sufficiently definable features 

of the environment in the two nursery 

areas, other than red mangroves and 

adjacent shallow euryhaline habitats, 

are essential to smalltooth sawfish 

conservation. 

Based on the boundaries of the two 

nursery areas and GIS data information 

on the location of the features, the 

Charlotte Harbor Estuary and the TTI/E 

nursery areas contain the features 

essential to the conservation of 

smalltooth sawfish because they 

facilitate recruitment into the adult 

population. In this rule, we designate 

these two specific areas, referred to as 

critical habitat ‘‘units,’’ as critical 

habitat for the smalltooth sawfish. 

There are areas outside of the two 

nursery areas, including areas on the 

east and west coasts of Florida that 

contain some of the same features 

identified as essential features in our 

two nursery areas. Habitat areas outside 

the specific nursery areas also meet 

Simpfendorfer’s (2006) classification of 

highly suitable habitat for juveniles 

because they contain these features, 

notably areas in Tampa Bay and in the 

Indian River Lagoon. Because the 

features are essential to the conservation 

of the species based on the nursery 

functions they provide, we determined 

that these features are essential to the 

conservation of smalltooth sawfish only 

when present in nursery areas. None of 

these other areas meet the Heupel et al. 

(2007) definition of a nursery area. 

Encounters in these areas are rare and 

no pattern of repeat usage could be 

identified. Lack of repeat or highdensity usage of these other areas by 

juveniles may be a function of the 

limited current size of a reproducing 

population that does not yet need 

additional nursery areas. Even so, we 

have no basis to conclude that other 

areas, even those containing shallow 

euryhaline habitats and mangroves, will 

be used as nursery areas in the future. 

Nursery areas cannot be located based 

solely on the co-location of shallow 

depths and euryhaline salinity regimes, 

and juveniles are not commonly or 

repeatedly found everywhere these 

features are present. Mangroves may 

also not be determinative of nursery 

area function for the sawfish; the 

Florida Keys contain mangrove 

resources, yet juvenile sawfish use of 

the Keys as evidenced by encounter data 

has been highly variable, including near 

absence in certain recent years. 

Additionally, historic anecdotal 

information on locations of small 

animals suggests they were found in the 

lower St. Johns River, which does not 

support mangroves. Based on the best 

available scientific information, we 

identified two specific areas for the 

species where red mangroves and 

adjacent shallow euryhaline habitats 

provide nursery functions and are 

therefore essential to the conservation of 

the species. We therefore designate the 

Charlotte Harbor Estuary and TTI/E 

Units. 

The boundaries of the two specific 

areas are the same as the Charlotte 

Harbor Estuary and TTI/E nursery area 

boundaries. GIS bathymetry data, 

mangrove coverage data, and salinity 

data were used to verify the distribution 

of the essential features within the 

nursery areas. We have identified 

reference points and lines on standard 

topographic maps of the areas to 

describe the specific boundaries of the 

two units in the regulatory text. 

The essential features can be found 

unevenly dispersed throughout the two 

areas. The limits of available 

information on the distribution of the 

features, and limits on mapping 

methodologies, make it infeasible to 

define the specific areas containing the 

essential features more finely than 

described herein. Existing man-made 

structures such as boat ramps, docks, 

pilings, maintained channels or marinas 

do not provide the essential features 

that are essential for the species’ 

conservation. Areas not accessible (i.e., 

areas behind water control structures 

existing at the time of this final 

designation that prevent sawfish 

passage) to sawfish are not part of this 

designation. As discussed here and in 

the supporting impacts analysis, given 

the specificity of the essential features, 

determining whether an action may 

affect one or both of the features can be 

accomplished without entering into an 

ESA section 7 consultation. 

Unoccupied Areas 

ESA section 3(5)(A)(ii) further defines 

critical habitat to include specific areas 

outside the geographical area occupied 

if the areas are determined by the 

Secretary to be essential for the 

conservation of the species. Regulations 

at 50 CFR 424.12(e) specify that we shall 

designate as critical habitat areas 

outside the geographical area presently 

occupied by a species only when a 

designation limited to its present range 

would be inadequate to ensure the 

conservation of the species. Habitat 

based recovery criteria in the smalltooth 

sawfish recovery plan suggest areas 

outside the current occupied range may 

be important to the species’ recovery. 

However, based on the best available 

information we cannot identify 

unoccupied areas that are currently 

essential to the conservation of the 

species. If information on essential 

features or essential areas in the species’ 

unoccupied range becomes available, 

we will consider revising this critical 

habitat designation. 

Special Management Considerations or 

Protection 

Specific areas within the geographical 

area occupied by a species may be 

designated as critical habitat only if they 

contain physical or biological features 

essential to the conservation of the 

species that ‘‘may require special 

management considerations or 

protection.’’ A few courts have 

interpreted aspects of this statutory 

requirement, and the plain language 


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aids in its interpretation. For instance, 

the language clearly indicates the 

features, not the specific area containing 

the features, are the focus of the ‘‘may 

require’’ provision. Use of the 

disjunctive ‘‘or’’ also suggests the need 

to give distinct meaning to the terms 

‘‘special management considerations’’ 

and ‘‘protection.’’ Generally speaking, 

‘‘protection’’ suggests actions to address 

a negative impact or threat of a negative 

impact. ‘‘Management’’ seems plainly 

broader than protection, and could 

include active manipulation of a feature 

or aspects of the environment. Two 

Federal district courts, focusing on the 

term ‘‘may,’’ ruled that features can 

meet this provision based on either 

present requirements for special 

management considerations or 

protections, or on possible future 

requirements. See Center for Biol. 

Diversity v. Norton, 240 F. Supp. 2d 

1090 (D. Ariz. 2003); Cape Hatteras 

Access Preservation Alliance v. Dep’t of 

the Interior, 344 F. Supp. 108 (D.D.C. 

2004). The Arizona district court ruled 

that the provision cannot be interpreted 

to mean that features already covered by 

an existing management plan must be 

determined to require ‘‘additional’’ 

special management, because the term 

‘‘additional’’ is not in the statute. 

Rather, the court ruled that the 

existence of management plans may be 

evidence that the features in fact require 

special management. Center for Biol. 

Diversity v. Norton, at 1096–1100. 

NMFS’ regulations define ‘‘special 

management considerations or 

protections’’ to mean ‘‘any methods or 

procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species’’ (50 CFR 424.02(j)). 

Based on the above, we evaluated 

whether the essential features in the two 

sawfish nursery areas may require 

special management considerations or 

protections by evaluating four criteria: 

a. Whether there is presently a need 

to manage the feature; 

b. Whether there is the possibility of 

a need to manage the feature; 

c. Whether there is presently a 

negative impact on the feature; or 

d. Whether there is the possibility of 

a negative impact on the feature. 

In evaluating present or possible 

future management needs for the 

features, we recognized that the features 

in their present condition must be the 

basis for a finding that these are 

essential to the smalltooth sawfish’s 

conservation. In addition, the needs for 

management evaluated in (a) and (b) 

were limited to managing the features 

for the conservation of the species. In 

evaluating whether the essential 

features meet either criterion (c) or (d), 

we evaluated direct and indirect 

negative impacts from any source (e.g., 

human or natural). However, we only 

considered the criteria to be met if 

impacts affect or have the potential to 

affect the aspect of the feature that 

makes it essential to the conservation of 

the species. We also evaluated whether 

the features met the ‘‘may require’’ 

provision separately for the two 

‘‘specific areas’’ proposed for 

designation. 

Red mangroves and adjacent shallow 

euryhaline habitats are both susceptible 

to impacts from human activities 

because they are located in areas where 

urbanization occurs. The smalltooth 

sawfish status review (NMFS 2000) 

states that habitat destruction is one of 

the key factors affecting the present 

distribution of the species. The 

continued urbanization of the 

southeastern U.S. has resulted in 

substantial habitat losses for the species. 

Coastal areas including the two nursery 

areas are subject to various impacts from 

activities including, but not limited to, 

dredging and disposal activities, coastal 

maritime construction, land 

development and associated runoff, 

alteration of natural freshwater 

discharges to coastal habitats, and 

installation of various submerged 

pipelines. The impact from these 

activities combined with natural factors 

(e.g., major storm events) can 

significantly affect the quality and 

quantity of the two features listed above 

and their ability to provide nursery area 

functions (i.e., refuge from predators 

and abundant food resources), to 

juvenile smalltooth sawfish to facilitate 

recruitment into the population. 

Dredging projects modify water depths 

to accommodate navigation needs, 

mangroves are removed to construct 

docks and various maritime structures, 

and water control structures are 

installed to modify water flows in 

various areas, which can alter salinity 

regimes downstream. Based on our past 

section 7 consultation database records 

we know that coastal areas in southwest 

Florida will continue to experience 

impacts from coastal construction 

projects and that the essential features 

will continue to experience negative 

impacts in the future. Based on our past 

consultation history, fewer Federal 

actions may affect habitats in the TTI/ 

E Unit than in the Charlotte Harbor 

Estuary Unit, because much of the TTI/ 

E Unit is held in public ownership by 

the Department of the Interior. However, 

coastal storm impacts to mangroves, 

salinity, and water depth still occur 

within this area, and salinity regimes as 

well as mangroves in this area may be 

altered in the future by projects 

implemented under the Comprehensive 

Everglades Restoration Project. Thus, 

the two essential features currently 

needed and will continue to require 

special management and protection in 

both of the two specific areas. 

Activities That May Be Affected by the 

Designation 

Section 4(b)(8) of the ESA requires 

that we describe briefly and evaluate, in 

any proposed or final regulation to 

designate critical habitat, those 

activities that may destroy or adversely 

modify such habitat or that may be 

affected by such designation. A variety 

of activities may affect critical habitat 

that, when carried out, funded, or 

authorized by a Federal agency, will 

require an ESA section 7 consultation. 

Such activities include, but are not 

limited to, dredging and filling, other inwater construction (docks, marinas, boat 

ramps, etc.), installation of water control 

structures, and hard clam aquaculture 

activities. Notably, all the activities 

identified that may affect the critical 

habitat may also affect the species itself, 

if present within the action area of a 

proposed Federal action. 

We believe this final critical habitat 

designation will provide Federal 

agencies, private entities, and the public 

with clear notification of the nature of 

critical habitat for smalltooth sawfish 

and the boundaries of the habitat. This 

designation will allow Federal agencies 

and others to evaluate the potential 

effects of their activities on critical 

habitat to determine if ESA section 7 

consultations with NMFS are needed, 

given the specific definition of the two 

essential features. Consistent with 

recent agency guidance on conducting 

adverse modification analyses (NMFS, 

2005), we will apply the statutory 

provisions of the ESA, including those 

in section 3 that define ‘‘critical habitat’’ 

and ‘‘conservation,’’ to determine 

whether a proposed future action might 

result in the destruction or adverse 

modification of critical habitat. 

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

Section 4(a)(3)(B) prohibits 

designating as critical habitat any lands 

or other geographical areas owned or 

controlled by the Department of Defense 

(DOD), or designated for its use, that are 

subject to an integrated natural 

resources management plan (INRMP), if 

we determine that such a plan provides 

a benefit to the sawfish species (16 

U.S.C. 1533(a)(3)(B)). We solicited 

information from DOD and received 

responses indicating that no DOD 

facilities or managed areas are located 


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within the specific areas identified as 

critical habitat. 

Application of ESA Section 4(b)(2) 

The foregoing discussion described 

the specific areas within U.S. 

jurisdiction that fall within the ESA 

section 3(5) definition of critical habitat 

because they contain the physical and 

biological features essential to the 

sawfish’s conservation that may require 

special management considerations or 

protection. Before including areas in a 

designation, section 4(b)(2) of the ESA 

requires us to consider the economic, 

national security, and any other relevant 

impacts of designation of any particular 

area. Additionally, we have the 

discretion to exclude any area from 

designation if we determine the benefits 

of exclusion (that is, avoiding some or 

all of the impacts that would result from 

designation) outweigh the benefits of 

designation based upon the best 

scientific and commercial data 

available. We may not exclude an area 

from designation if exclusion will result 

in the extinction of the species. Because 

the authority to exclude is discretionary, 

exclusion is not required for any 

particular area under any 

circumstances. 

The analysis of impacts below 

summarizes the comprehensive analysis 

contained in our Final 4(b)(2) Report 

(NMFS, 2009), considering the 

economic, national security, and other 

relevant impacts that we projected 

would result from including the two 

units in the critical habitat designation. 

This consideration informed our 

decision on whether to exercise our 

discretion to exclude particular areas 

from the designation. Both positive and 

negative impacts were identified and 

considered (these terms are used 

interchangeably with benefits and costs, 

respectively). Impacts were evaluated in 

quantitative terms where feasible, but 

qualitative appraisals were used where 

that was more appropriate to particular 

impacts. 

The ESA does not define what 

‘‘particular areas’’ means in the context 

of section 4(b)(2), or the relationship of 

particular areas to ‘‘specific areas’’ that 

meet the statute’s definition of critical 

habitat. As there was no biological basis 

to subdivide the two specific critical 

habitat units into smaller units, we 

treated these units as the ‘‘particular 

areas’’ for our initial consideration of 

impacts of designation. 

Impacts of Designation 

The primary impacts of a critical 

habitat designation result from the ESA 

section 7(a)(2) requirement that Federal 

agencies ensure their actions are not 

likely to result in the destruction or 

adverse modification of critical habitat. 

Determining these impacts is 

complicated by the fact that section 

7(a)(2) also requires that Federal 

agencies ensure their actions are not 

likely to jeopardize the species’ 

continued existence. An 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 jeopardy prohibition. 

When a modification would be required 

due to impacts to both the species and 

critical habitat, the impact of the 

designation may be co-extensive with 

the ESA listing of the species. Our Draft 

4(b)(2) Report projected administrative 

and project modification costs that 

would be incremental impacts of the 

designation, based on our consultation 

history for the species and on the 

assumption that formal consultations 

would not be required to avoid adverse 

effects to the species itself. Past 

consultations on projects in the range of 

the species have all concluded the 

species was not likely to be adversely 

affected, due to the mobility and 

perceived lack of specific habitat use by 

the species. However, recent section 7 

consultations have determined that it 

may not be appropriate to conclude that 

juvenile sawfish forced to vacate 

nursery habitat due to project activities 

will not be harmed by these effects, 

given juveniles’ specific habitat 

requirements and high site fidelity. In 

some recent consultations, limitations 

on removal of red mangroves and 

shallow habitat areas were implemented 

to avoid take of juvenile sawfish using 

project areas. Because such projects are 

directly impacting features that have 

been identified as critical habitat and 

may be indirectly affecting the listed 

species, it is possible that critical habitat 

considerations will be the more 

important factor in shaping future 

consultations. Thus, in the Final 4(b)(2) 

Report, we have retained the 

conservative assumption that the 

identified costs and benefits will be 

incremental impacts of the critical 

habitat designation. 

The Final 4(b)(2) Report begins with 

a description of the projected future 

Federal activities that would trigger 

section 7 consultation requirements 

because they may affect one or both of 

the essential features. Additionally, the 

report describes the project 

modifications we identified that may 

reduce impacts to the essential features. 

Positive impacts that may arise from 

avoiding destruction or adverse 

modification of the species’ habitat, and 

education of the public to the 

importance of an area for species 

conservation, are also described. The 

report discusses the lack of expected 

impacts on national security and other 

relevant impacts. This report is 

available on NMFS’ Southeast Region 

Web site at http://sero.nmfs.noaa.gov/ 

pr/SmalltoothSawfish.htm. 

Economic Impacts 

As discussed above, economic 

impacts of the critical habitat 

designation result through 

implementation of section 7 of the ESA 

in consultations with Federal agencies 

to ensure their proposed actions are not 

likely to destroy or adversely modify 

critical habitat. These economic impacts 

may include both administrative and 

project modification costs; economic 

impacts that may be associated with the 

conservation benefits of the designation 

are characterized as other relevant 

impacts and described later. 

Because the smalltooth sawfish has 

been listed for 5 years, a consultation 

history exists for the species that 

allowed formulating predictions about 

the types of future Federal activities that 

might require section 7 consultation in 

the next 10 years (the typical time 

period for section 4(b)(2) reports). We 

examined our consultation records 

compiled in our Public Consultation 

Tracking System (PCTS) database, to 

identify types of Federal activities that 

have the potential to adversely affect 

either both the smalltooth sawfish and 

its critical habitat, or just the critical 

habitat (actions that require consultation 

due to effects solely on the fish are not 

impacts of the designation of critical 

habitat). The PCTS database contains 

information dating from 1997, providing 

a consultation history for sawfish and 

co-located listed species spanning 10 

years. Consultation data for smalltooth 

sawfish began when the species was 

listed in 2003, and available information 

indicates that the number of 

consultations increased over time as 

Federal agencies recognized those 

projects that might affect the species 

and thus require consultation. Based on 

our outreach efforts to Federal agencies 

about the need to consult on the species, 

we believe that our data from 2005 to 

the present represents the level of future 

actions that may trigger consultation in 

the two areas designated as critical 

habitat from which to estimate the 

number of future actions that may 

trigger consultation. Thus we 

extrapolated the number of 

consultations that occurred over a threeyear period between 2005 and the 


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present that required consultation due 

to the presence of the sawfish into the 

number of future consultations. We also 

considered information provided by 

Federal action agencies on future 

consultations. 

We identified four categories of 

activities that would require 

consultation due to potential impacts to 

one or both of the essential features: 

marine construction activities that 

require a Federal permit (e.g., docks, 

piers, boat ramps, dredging, shoreline 

stabilization, etc.); general permits 

(including shellfish aquaculture 

activities) authorizing specified 

categories and locations of construction 

activities without the need for 

individual project-specific permits; 

water control structure repair and 

replacement; and road/bridge 

expansions, repairs and removals. No 

categories of future Federal actions are 

expected to require consultation due 

solely to impacts on one or both of the 

critical habitat features; all categories of 

projected future actions may trigger 

consultation because they have the 

potential to adversely affect the 

essential features and the species itself. 

Therefore, we do not predict this 

designation will result in an increase in 

the number of consultations that would 

be required due solely to the presence 

of the species in the two specific units. 

Moreover, fewer than half of the past 

projects that required consultation due 

to effects on sawfish had actual impacts 

on one or both of the features 

determined as critical habitat. A total of 

77 consultations in the Charlotte Harbor 

Estuary Unit and a total of 8 

consultations in the TTI/E Unit are 

predicted over the next ten years due to 

the designation. The ACOE is projected 

to be the Federal action agency for the 

majority of future projects requiring 

consultation due to adverse effects to 

critical habitat in both units; the U.S. 

Coast Guard and/or the Federal 

Highways Administration may be coaction agencies that may also be 

involved in three consultations in the 

Charlotte Harbor Estuary Unit over the 

next ten years. Although the TTI/E unit 

largely overlaps the Everglades National 

Park, due to limitations on habitataltering activities in the park, we project 

only one consultation will be required 

with the Department of Interior (DOI) 

over the next 10 years as a result of this 

designation. 

As explained above, to be 

conservative and avoid underestimating 

impacts of the designation, we assumed 

that although all future projects will 

trigger consultation due to both the 

species and the critical habitat, the 

consultations will be formal and require 

a biological opinion based on potential 

adverse impacts on one or both of the 

essential features of the critical habitat. 

Thus, we have estimated the maximum 

potential incremental administrative 

costs of each consultation that will 

result from the designation, as the 

difference in average costs of an 

informal and formal consultation. We 

have estimated the total costs for each 

unit as a range, reflecting the possible 

range in complexity and cost of 

consultations. The maximum potential 

incremental administrative costs for the 

Charlotte Harbor Estuary Unit are 

estimated to range from $1,039,500 to 

$1,386,000 (depending on complexity) 

over the 10-year planning period. The 

maximum potential incremental 

administrative costs for the TTI/E Unit 

are estimated to range from $108,000 to 

$144,000 (depending on complexity) 

over the 10-year planning period. 

We next considered the range of 

modifications we may recommend to 

avoid adverse modification from 

projected future activities in the 

smalltooth sawfish critical habitat. We 

assumed in our analysis that the costs 

of project modifications to avoid 

destroying or adversely modifying 

critical habitat would not be costs that 

are co-extensive with the listing of the 

species. Although recently completed 

consultations indicate that project 

modifications may be required in the 

future to avoid take of juvenile sawfish 

using their nursery areas, as discussed 

above, it is conceivable that critical 

habitat considerations will be the more 

important factor shaping the outcome of 

future consultations and selection of 

project modifications. Similarly, we 

assumed that the costs of project 

modifications required to avoid 

destruction or adverse modification of 

critical habitat will not be costs that are 

co-extensive with another existing 

regulatory requirement. Though there 

are numerous existing Federal, State, or 

local laws and regulations that protect 

natural resources including the essential 

features to some degree, none of these 

laws focuses on avoiding the 

destruction or adverse modification of 

these features, which provide sawfish 

nursery area functions, thus facilitating 

sawfish recovery. As a result, we believe 

the designation will provide unique, 

additional protections to the critical 

habitat features that would result in 

project modifications where existing 

laws would not require such 

modifications. 

We identified eight potential project 

modifications that we may recommend 

during section 7 consultation to avoid or 

reduce impacts to the essential features. 

To be conservative in estimating 

impacts, we assumed that project 

modifications would be recommended 

to address adverse effects from all 

projected future agency actions 

requiring consultation. Although we 

made the assumption that all potential 

project modifications would be 

recommended by NMFS, not all of the 

modifications identified for a specific 

category of activity would be necessary 

for an individual project, but we are not 

able to identify the exact modification 

or combinations of modifications that 

would be required for all future actions. 

Conversely, more than one project 

modification may be required for 

individual future projects where both 

essential features may be adversely 

affected by a project, and multiple 

project modifications are required to 

avoid such impacts. 

Table 1 provides a summary of the 

estimated costs, where possible, of 

individual project modifications. The 

Final 4(b)(2) Report provides a detailed 

description of each project modification, 

actions for which it may be 

recommended, and whether it may be 

useful in avoiding adverse impacts to 

one or both of the essential features. 

TABLE 1—SUMMARY OF TYPES OF POTENTIAL PROJECT MODIFICATIONS

Project modification Cost Unit Range Approx. totals 

Project Relocation ........................ Undeterminable ............................ N/A .................... N/A .................... N/A. 

Horizontal Directional Drilling 

(HDD).

$1.39–2.44 million ........................ per mile ............. 0.2–31.5 Miles .. $278,000–$76,900,000. 

Restriction of Utility/Road Corridor 

Widths.

Roadway Retained Sides, 2 Lane 

= $1,875.

Linear Foot ....... N/A .................... $1,875–$5,050 per linear foot. 

Roadway Retained Sides, 4 Lane 

= $2,150.


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TABLE 1—SUMMARY OF TYPES OF POTENTIAL PROJECT MODIFICATIONS—Continued 

Project modification Cost Unit Range Approx. totals 

Roadway Bridge, 2 Lane = 

$3,370.

Roadway Bridge, 4 Lane = 

$5,050.

Alternative Shoreline Stabilization 

Methods.

Undeterminable ............................ N/A .................... N/A .................... N/A. 

Limitations on Dock Widths and 

Sizes.

Undeterminable ............................ Sq. Foot ............ N/A .................... N/A. 

Limitations/Restrictions on Modifying Freshwater Flow.Undeterminable ............................ N/A .................... N/A .................... N/A. 

Sediment and Turbidity Controls .. Staked Silt Fence = $2 ................

Floating Turbidity Barrier = $12 ...

Linear Foot ....... N/A .................... $2–$12 per linear foot. 

Conditions Monitoring ................... Undeterminable ............................ N/A .................... N/A .................... N/A. 

Note: Where information was available, the estimated ranges (extents) of the impacts are included. 

National Security Impacts 

Previous critical habitat designations 

have recognized that impacts to national 

security may result if a designation 

would trigger future ESA section 7 

consultations because a proposed 

military activity ‘‘may affect’’ the 

physical or biological feature(s) 

essential to the listed species’ 

conservation. Anticipated interference 

with mission-essential training or 

testing or unit readiness, either through 

delays caused by the consultation 

process or through requirements to 

modify the action to prevent adverse 

modification of critical habitat, has been 

identified as a negative impact of 

critical habitat designations (see, e.g., 

Proposed Designation of Critical Habitat 

for the Pacific Coast Population of the 

Western Snowy Plover, 71 FR 34571, 

34583 (June 15, 2006); and Proposed 

Designation of Critical Habitat for 

Southern Resident Killer Whales; 69 FR 

75608, 75633 (December 17, 2004)). 

These past designations have also 

recognized that national security 

impacts do not result from a critical 

habitat designation if future ESA section 

7 consultations would be required for a 

jeopardy analysis even if no critical 

habitat was designated, in which case 

the critical habitat designation would 

not add new burdens beyond those 

related to the jeopardy consultation. 

On April 11, 2008, we sent a letter to 

DOD requesting information on national 

security impacts of the proposed 

designation. We received responses 

from the Departments of the Army, 

Navy, and Air Force indicating that they 

have no facilities or managed areas 

located within the proposed critical 

habitat areas. Thus, consultations with 

respect to activities on DOD facilities or 

training are unlikely to be triggered as 

a result of the final critical habitat 

designation, and no national security 

impacts are anticipated as a result of 

this critical habitat rule. 

Other Relevant Impacts 

Past critical habitat designations have 

identified three broad categories of other 

relevant impacts: educational awareness 

benefits, conservation benefits, both to 

the species and to society as a result of 

the avoidance of destruction or adverse 

modification of critical habitat, and 

impacts on governmental or private 

entities that implement existing 

management plans in the areas covered 

by the designation. Our Final 4(b)(2) 

Report discusses these impacts of 

designating the specific areas as critical 

habitat for smalltooth sawfish. 

As summarized in the Final 4(b)(2) 

Report, there are potential educational 

benefits resulting from the designation. 

Particularly in Florida, the designation 

may expand the awareness raised by the 

listing of the smalltooth sawfish. 

Mangrove shoreline areas are often used 

for recreational activities such as 

kayaking, and provide habitat for 

viewable wildlife. Additionally, Federal 

and State protected areas, such as 

Everglades National Park, Rookery Bay 

National Estuarine Preserve, Cape 

Romano-Ten Thousand Islands Aquatic 

Preserve, and Collier-Seminole State 

Park may benefit from the added 

awareness of the endangered smalltooth 

sawfish within their boundaries, and 

from the protection critical habitat 

designation affords. 

Implementation of ESA Section 7 to 

avoid destruction or adverse 

modification of critical habitat is 

expected to increase the probability of 

recovery for listed species. In addition 

to contributing to sawfish recovery, 

benefits associated with project 

modifications required through section 

7 consultation to minimize or avoid the 

destruction or adverse modification of 

the essential features, would include 

minimizing or avoiding loss of the 

ecosystem services that these features 

provide. By definition, the physical and 

biological features are ‘‘essential to the 

conservation’’ of the smalltooth sawfish; 

in other words, conservation of the 

species as defined in the ESA is not 

possible without the presence and 

protection of the features. As discussed 

above, we have determined that the two 

areas included in the critical habitat 

designation are juvenile nursery areas. 

The essential features of these areas, red 

mangroves with their prop root systems, 

and adjacent shallow euryhaline 

habitats, provide protection from 

predators and abundant and diverse 

prey resources, and thus provide key 

nursery area functions for the sawfish. 

Because the smalltooth sawfish has 

limited commercial and recreational 

value, and because the species’ recovery 

is expected to take decades, we can 

predict no direct or indirect monetary 

value that may result from the 

designation because of its contribution 

to the recovery of the smalltooth 

sawfish. However, as discussed in the 

following paragraphs, other benefits are 

expected to accrue to society in the 

course of protecting the essential 

features of the sawfish’s critical habitat 

from destruction or adverse 

modification. 

Mangrove ecosystems provide a range 

of important uses and services to 

society. As these benefits currently 

exist, we do not interpret them as 

resulting from the critical habitat 

designation per se. However, protection 

of the critical habitat from destruction 

or adverse modification may at a 

minimum prevent loss of the benefits 

provided by these resources, and would 

contribute to any benefits associated 

with increased future abundance of the 

smalltooth sawfish as it recovers. As we 

discuss in the Final 4(b)(2) Report, we 

believe that the critical habitat 

designation will provide unique, 

additional protections to mangroves in 


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the areas covered by the designation, 

relative to existing laws and regulations. 

The additional protection of 

mangroves offered through the critical 

habitat designation ensures that 

mangroves in the areas covered by the 

final designation can continue to 

function as critical components of the 

ecosystem. The Final 4(b)(2) Report 

discusses benefits of mangroves 

including benefits to biodiversity, 

benefits to fisheries, benefits to air and 

water quality protection, shoreline 

protection, and benefits to recreation 

and tourism. Most of these benefits are 

described in non-monetary metrics. 

Where economic values are presented, 

we note that they are derived from a 

variety of sources and studies and are 

provided for context in support of our 

conclusion that non-negligible 

economic benefits are expected to result 

from the designation, because protection 

of the critical habitat from destruction 

or adverse modification is expected at 

minimum to prevent loss of existing 

benefits the habitat provides. 

While the shallow water euryhaline 

habitat feature offers important 

ecosystem services to various juvenile 

fish, invertebrates, and benthic and 

epibenthic organisms as described in 

the Final 4(b)(2) Report, their 

conservation benefits are interrelated 

with the benefits offered by 

conservation of red mangroves. 

Consequently, the Final 4(b)(2) Report 

focuses on the benefits of mangroves, 

and the interrelated benefits of the 

shallow water euryhaline habitat are not 

discussed in detail. 

Very little impact on entities 

responsible for natural resource 

management or conservation plans that 

benefit listed species, or on the 

functioning of those plans, is predicted 

to result from the critical habitat 

designation in the areas covered by the 

plans. Though the TTI/E unit largely 

overlaps with the Everglades National 

Park, our discussions with park 

managers identify only one park 

management project that will require 

consultation during the next 10 years. 

Synthesis of Impacts Within the Specific 

Areas 

For the reasons set forth below, based 

on our consideration of positive and 

negative economic, national security 

and other relevant impacts predicted to 

result from the designation, we do not 

exercise our discretion to exclude all or 

any part of either the Charlotte Harbor 

Estuary Unit or the Ten Thousand 

Islands/Everglades Unit from the 

designation. No impacts on national 

security are projected to result from the 

designation. Very little negative impact 

on existing resource management 

activities is projected to result from the 

designation. Negative economic impacts 

resulting from section 7 consultation 

requirements are projected to be limited. 

A total of 85 Federal actions over the 

next ten years are projected to require 

section 7 consultation to address 

predicted adverse effects to one or both 

of the physical or biological features of 

designated critical habitat. Seventyseven of these actions are projected for 

the Charlotte Harbor Estuary Unit, or 

approximately eight per year on average. 

Only eight future consultations are 

projected to be required in the TTI/E 

Unit over the next ten years due to 

impacts on the critical habitat features, 

or approximately one per year on 

average. All of these projects would 

have required consultation due to the 

listing of the sawfish, even in the 

absence of the designation. We have 

projected that incremental section 7 

costs will be associated with the 

designation, in the form of increased 

administrative costs of more complex, 

formal consultations, and in project 

modification costs. Estimated costs for 

these project modifications are provided 

in the Final 4(b)(2) Report, though we 

could not predict the total cost of 

modifications resulting from the 

designation given the lack of 

information on project design and 

locations. However, we may have 

overestimated impacts in our 

assumption that all modification costs 

will be necessary and will be 

incremental impacts of the designation 

rather than baseline impacts of existing 

State, local or other Federal laws or 

regulations that protect natural 

resources or co-extensive impacts of the 

listing of the sawfish. We do not project 

that any required project modifications 

will have secondary impacts on local or 

regional economies. The majority of 

project modifications are projected to be 

recommended to avoid adverse effects 

to the red mangroves in the critical 

habitat areas. We expect that the 

designation will provide unique, 

additional protections to mangroves 

because existing laws and regulations in 

these areas do not avoid the destruction 

or adverse modification of mangroves 

for the purpose of facilitating recovery 

of the sawfish. The final designation is 

expected to, at minimum, prevent the 

loss of societal benefits that mangroves 

and shallow euryhaline habitats 

currently provide in the two specific 

areas included in the proposal. 

Critical Habitat Designation 

We are designating approximately 

840,472 acres in two units of critical 

habitat occupied by the U.S. DPS of 

smalltooth sawfish at the time of its 

listing. The two units determined for 

critical habitat designations are: the 

Charlotte Harbor Estuary Unit, which 

comprises approximately 221,459 acres 

of habitat; and the Ten Thousand 

Islands/Everglades Unit (TTI/E), which 

comprises approximately 619,013 acres 

of habitat. The two units are located 

along the southwestern coast of Florida 

between Charlotte Harbor and Florida 

Bay. 

These specific areas contain the 

following physical and biological 

features that are essential to the 

conservation of this species and that 

may require special management 

considerations or protection: red 

mangroves and shallow euryhaline 

habitats characterized by water depths 

between the MHW line and 3 ft (0.9 m) 

measured at Mean Lower Low Water 

(MLLW). No unoccupied areas are 

included in the final designation of 

critical habitat. 

Peer Review 

In December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review establishing minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation. The OMB Bulletin, 

implemented under the Information 

Quality Act (Pub. L. 106–554), is 

intended to enhance the quality and 

credibility of the Federal government’s 

scientific information, and applies to 

influential or highly influential 

scientific information disseminated on 

or after June 16, 2005. 

To satisfy our requirements under the 

OMB Bulletin, we obtained independent 

peer review of the scientific information 

included in the proposed critical habitat 

designation, including the Draft 4(b)(2) 

Report and incorporated the peer review 

comments prior to dissemination of the 

proposed rulemaking. The peer review 

comments and our responses are 

summarized above. 

Classification 

The State of Florida determined this 

action is consistent to the maximum 

extent practicable with the enforceable 

policies of the approved coastal 

management programs of Florida. This 

determination is required under section 

307 of the Coastal Zone Management 

Act. 

This final rule has been determined to 

be significant under Executive Order 

(E.O.) 12866. We have integrated the 

regulatory principles of the E.O. into the 

development of this rule to the extent 

consistent with the mandatory duty to 


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designate critical habitat, as defined in 

the ESA. 

We prepared a final regulatory 

flexibility analysis (FRFA) pursuant to 

section 603 of the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), which 

describes the economic impact this rule 

may have on small entities. 

This rule may affect small businesses, 

small nonprofit organizations, and small 

governmental jurisdictions that engage 

in activities that would affect the 

essential features identified in this 

designation, if they receive funding or 

authorization for such activity from a 

Federal agency. Such activities would 

trigger ESA section 7 consultation 

requirements, and potential 

modifications to proposed activities 

may be required to avoid destroying or 

adversely modifying the critical habitat. 

The consultation record from which we 

have projected likely actions occurring 

over the next ten years indicates that 

applicants for Federal permits or funds 

may include small entities. For 

example, marine contractors may 

require ACOE permits for dock 

construction; some of these contractors 

may be small entities. According to the 

Small Business Administration, 

businesses in the Heavy and Civil 

Engineering Construction subsector 

(NAICS Code 237990), which includes 

firms involved in marine construction 

projects such as breakwater, dock, pier, 

jetty, seawall and harbor construction, 

must have average annual receipts of no 

more than $31 million to qualify as a 

small business (dredging contractors 

that perform at least 40% of the volume 

dredged with their own equipment, or 

equipment owned by another small 

concern are considered small businesses 

if their average annual receipts are less 

than or equal to $18.5 million). Our 

consultation database does not track the 

identity of past permit recipients or 

whether the recipients were small 

entities, so we have no basis to 

determine the percentage of grantees or 

permittees that may be small businesses 

in the future. 

Small businesses in the tourist and 

commercial fishing industries may 

benefit from the rule because avoiding 

the destruction or adverse modification 

of the critical habitat features, 

particularly mangroves, is expected to at 

minimum prevent loss of current direct 

and indirect use of, and values derived 

from, these habitats within the areas 

included in the designation. 

A review of historical ESA section 7 

consultations involving projects in the 

areas designated are described in 

Section 3.2.2 of the Final 4(b)(2) Report 

prepared for this rulemaking. We 

projected that, on average, about eight 

Federal projects with non-Federal 

grantees or permittees will be affected 

by implementation of the critical habitat 

designation, annually, across both areas 

included in the critical habitat 

designation. Some of these grantees or 

permittees could be small entities, or 

could hire small entities to assist in 

project implementation. Historically, 

these projects have involved dock/pier 

construction and repair, water control 

structure installation or repair, bridge 

repair and construction, dredging, cable 

installation, and shoreline stabilization. 

Potential project modifications we have 

identified that may be required to 

prevent these types of projects from 

adversely modifying critical habitat 

include: project relocation; 

environmental conditions monitoring; 

horizontal directional drilling; road/ 

utility corridor restrictions; alternative 

shoreline stabilization methods; dock 

size and width limits; restrictions on 

structures that modify freshwater flows; 

and sediment and turbidity control 

measures. See Table 15 of the Final 

4(b)(2) Report. 

Even though we cannot determine 

relative numbers of small and large 

entities that may be affected by this rule, 

there is no indication that affected 

project applicants would be limited to, 

nor disproportionately comprised of, 

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 

4(b)(2) Report, consultations and project 

modifications will be required based on 

the type of permitted action and its 

associated impacts on the essential 

critical habitat feature. Because the costs 

of many potential project modifications 

that may be required to avoid adverse 

modification of critical habitat are unit 

costs such that total project 

modification costs would be 

proportional to the size of the project, it 

is not unreasonable to assume that 

larger entities would be involved in 

implementing the larger projects with 

proportionally larger project 

modification costs. 

It is also unclear whether the rule will 

significantly reduce profits or revenue 

for small businesses. As discussed 

throughout the Final 4(b)(2) Report, we 

made assumptions that all future 

consultations will be formal, that all 

will require project modifications, and 

that all costs of project modifications 

will be incremental impacts of the 

designation and not a requirement of 

other existing regulatory requirements 

including ESA requirements for 

protection of the sawfish itself. These 

assumptions likely overestimate the 

impacts of the designation. In addition, 

as stated above, though it is not possible 

to determine the exact cost of any given 

project modification resulting from 

consultation, the smaller projects most 

likely to be undertaken by small entities 

would likely result in relatively small 

modification costs. 

There are no record-keeping 

requirements associated with the rule. 

Similarly, there are no reporting 

requirements other than those that 

might be associated with reporting on 

the progress and success of 

implementing project modifications. 

However, third party applicants or 

permittees would be expected to incur 

incremental costs associated with 

participating in the administrative 

process of consultation along with the 

permitting Federal agency, beyond the 

baseline administrative costs that would 

be required for consultations based on 

the sawfish itself. Estimates of the cost 

to third parties from consultations were 

developed from the estimated Section 7 

costs identified in the Economic 

Analysis of Critical Habitat Designation 

for the Gulf Sturgeon (IEc 2003) inflated 

to 2009 (March) dollars. The maximum 

potential incremental third party cost 

for each consultation would be the 

difference between the cost of an 

informal consultation required solely for 

the presence of the sawfish and a formal 

consultation required to avoid 

destroying or adversely modifying the 

critical habitat ($2,000 difference per 

low complexity consultation and $1,600 

difference per high complexity 

consultation). The total impact on third 

party costs would be the incremental 

cost of the formal consultation 

multiplied by the increased number of 

formal consultations. The maximum 

incremental third party costs for both 

Units are estimated to range from 

$136,200 to $170,000 (depending on 

complexity) over the 10-year planning 

period. 

No Federal laws or regulations 

duplicate or conflict with the final rule. 

Existing Federal laws and regulations 

overlap with the final rule only to the 

extent that they provide protection to 

natural resources including mangroves 

generally. However, no existing laws or 

regulations specifically prohibit 

destruction or adverse modification of 

critical habitat for, and focus on the 

recovery of, the smalltooth sawfish. 

The alternatives to the designation 

considered consisted of three 

alternatives: no-action, our preferred 

alternative, and an alternative with 

varying numbers of units. NMFS would 

not designate critical habitat for the 

smalltooth sawfish under the no action 

(status quo) alternative. Under this 


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alternative, conservation and recovery 

of the listed species would depend 

exclusively upon the protection 

provided under the ‘‘jeopardy’’ 

provisions of Section 7 of the ESA and 

implementation of the recovery plan. 

Under the status quo, there would be no 

increase in the number of ESA 

consultations or project modifications in 

the future that would not otherwise be 

required due to the listing of the 

smalltooth sawfish. However, the 

physical and biological features forming 

the basis for our final critical habitat 

designation are essential to sawfish 

conservation, and conservation for this 

species will not succeed without the 

availability of these features. Thus, the 

lack of protection of the critical habitat 

features from adverse modification 

could result in continued declines in 

abundance of smalltooth sawfish, and 

loss of associated values sawfish 

provide to society. Further, this 

alternative is not consistent with the 

requirement of the ESA to designate 

critical habitat to the maximum extent 

prudent and determinable. 

Under the preferred alternative two 

specific areas that provide nursery 

functions for juvenile sawfish are 

included in the final critical habitat 

designation. These areas are located 

along peninsular Florida, encompassing 

portions of Charlotte, Lee, Collier, 

Monroe, and Miami-Dade counties. 

These two areas contain the physical 

and biological features essential to the 

conservation of the U.S. DPS of 

smalltooth sawfish. The essential 

features are red mangroves and shallow 

euryhaline habitats characterized by 

water depths between the MHW line 

and 3 ft (0.9 m) measured at MLLW that 

provide nursery area functions to 

smalltooth sawfish. The preferred 

alternative was selected because it best 

implements the critical habitat 

provisions of the ESA, by defining the 

specific features that are essential to the 

conservation of the species, and due to 

the important conservation benefits 

expected to result from this alternative 

relative to the no action alternative. 

Under the varying number of units 

alternative, we considered both 

combining the Charlotte Harbor Estuary 

Unit and the TTI/E Unit into a single 

unit for designation, and alternatively 

we considered splitting both units into 

multiple smaller units. 

Under the first scenario, the unit 

would include the Naples beach area 

between the two units, and thus would 

encompass a larger total area than the 

two units. Though juveniles have been 

encountered in the Naples beach area, 

they have not been encountered in high 

densities. We also do not believe that 

juveniles move between the Charlotte 

Harbor Estuary and TTI/E Units along 

this stretch of beach. Furthermore, 

while red mangroves exist along this 

area (though they are much more 

sparsely distributed than in the two 

units), the salinity regimes are much 

more purely marine than estuarine, and 

the features are not considered to 

provide the nursery functions essential 

to the conservation of the species in 

these areas. Thus, we rejected this 

alternative in our final critical habitat 

designation because the Naples Beach 

area is not considered to meet the 

definition of a nursery area. 

Under the second scenario, we 

considered options to split both the 

Charlotte Harbor Estuary Unit and the 

TTI/E Unit into multiple smaller units. 

We considered designating Charlotte 

Harbor and the Caloosahatchee Rivers as 

separate units, including limiting the 

sizes of each of these areas strictly to 

locations of past high density 

encounters of juveniles. We considered 

the same type of partitioning of the TTI/ 

E Unit into smaller isolated units based 

on past high density encounters alone. 

We rejected the alternative of separating 

Charlotte Harbor and the 

Caloosahatchee River because State and 

local water resource managers consider 

the systems as a single integrated 

aquatic system. For both units, we 

rejected the alternative of multiple 

smaller units drawn around past high 

density juvenile encounters because we 

believe it would have omitted habitat 

that is almost certain nursery habitat for 

the sawfish between the separated small 

units. In addition, the essential features 

are continuously distributed from the 

harbor into the river, so this option 

would have omitted areas that meet the 

definition of critical habitat. Moreover, 

a designation limited to past encounters 

would not take into account the limits 

of this type of data in defining the 

extent of habitat use by the sawfish, and 

it would not provide protection for 

expanded nursery habitat needed for a 

recovering population. In addition, it 

was not clear that designating multiple 

smaller units would result in lower 

economic impacts of the designation, as 

the precise location of future 

consultations within these areas cannot 

be predicted based on available 

information. 

An environmental analysis as 

provided for under National 

Environmental Policy Act for critical 

habitat designations made pursuant to 

the ESA is not required. See Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

1995), cert. denied, 116 S.Ct. 698 (1996). 

Pursuant to the Executive Order on 

Federalism, E.O. 13132, the Assistant 

Secretary for Legislative and 

Governmental Affairs provided notice of 

this action and requested comments 

from the appropriate official(s) of the 

State of Florida. As mentioned above, 

Florida found the regulation consistent 

with its approved coastal management 

programs. 

This action has undergone a predissemination review and determined to 

be in compliance with applicable 

information quality guidelines 

implementing the Information Quality 

Act (Section 515 of Pub. L. 106–554). 

This action does not contain a 

collection-of-information requirement 

for purposes of the Paperwork 

Reduction Act. 

References Cited 

A complete list of all references cited 

in this rulemaking can be found on our 

Web site at http://sero.nmfs.noaa.gov/ 

pr/SmalltoothSawfish.htm and is 

available upon request from the NMFS 

Southeast Regional Office in St. 

Petersburg, Florida (see ADDRESSES). 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: August 27, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, NMFS amends 50 CFR part 

226 as set forth below: 

PART 226—DESIGNATED CRITICAL 

HABITAT 

1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. Add § 226.218, to read as follows: 

§ 226.218 Critical habitat for the U.S. 

DPS of smalltooth sawfish (Pristis 

pectinata). Critical habitat is designated 

for the U.S. DPS of smalltooth sawfish 

as described in this section. The textual 

descriptions in paragraph (b) of this 

section are the definitive source for 

determining the critical habitat 

boundaries. The maps of the critical 

habitat units provided in paragraph (d) 

of this section are for illustrative 

purposes only. 

(a) Physical and biological features 

essential to the conservation of the 

endangered U.S. DPS of smalltooth 

sawfish. The physical and biological 

features essential to the conservation of 

the U.S. DPS of smalltooth sawfish, 

which provide nursery area functions 

are: red mangroves and shallow 

euryhaline habitats characterized by 

water depths between the Mean High 

Water line and 3 ft (0.9 m) measured at 


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Mean Lower Low Water (MLLW). These 

features are included in critical habitat 

within the boundaries of the specific 

areas in paragraph (b) of this section, 

except where the features were not 

physically accessible to sawfish at the 

time of this designation (September 

2009); for example, areas where existing 

water control structures prevent sawfish 

passage to habitats beyond the structure. 

(b) Critical habitat boundaries. 

Critical habitat includes two areas 

(units) located along the southwest coast 

of peninsular Florida. The northern unit 

is the Charlotte Harbor Estuary Unit and 

the southern unit is the Ten Thousand 

Islands/Everglades (TTI/E) Unit. The 

units encompass portions of Charlotte, 

Lee, Collier, Monroe, and Miami-Dade 

Counties. 

(1) Charlotte Harbor Estuary Unit. The 

Charlotte Harbor Estuary Unit is located 

within Charlotte and Lee Counties. The 

unit includes Charlotte Harbor, 

Gasparilla Sound, Pine Island Sound, 

Matlacha Pass, San Carlos Bay, Estero 

Bay, and the Caloosahatchee River. The 

unit is defined by the following 

boundaries. It is bounded by the Peace 

River at the eastern extent at the mouth 

of Shell Creek at 81°59.467′ W, and the 

northern extent of the Charlotte Harbor 

Preserve State Park at 26°58.933′ N. At 

the Myakka River the unit is bounded 

by the SR–776 Bridge and in Gasparilla 

Sound by the SR–771 Bridge. The 

COLREGS–72 lines between Gasparilla 

Island, Lacosta Island, North Captiva 

Island, Captiva Island, Sanibel Island, 

and the northern point of Estero Island 

are used as the coastal boundary for the 

unit. The southern extent of the unit is 

the Estero Bay Aquatic Preserve, which 

is bounded on the south by the Lee/ 

Collier County line. Inland waters are 

bounded by SR–867 (McGregor 

Boulevard) from Punta Rassa Road to 

SR–80 near Fort Myers, then by SR–80 

(Palm Beach Boulevard) to Orange River 

Boulevard, then by Orange River 

Boulevard to Buckingham Road, then by 

Buckingham Road to SR–80, and then 

following SR–80 until it is due south of 

the Franklin Lock and Dam (S–79), 

which is the eastern boundary on the 

Caloosahatchee River and a structural 

barrier for sawfish access. Additional 

inland water boundaries north and west 

of the lock are bounded by North 

Franklin Lock Road to North River 

Road, then by North River Road to SR– 

31, then by SR–31 to SR–78 near Cape 

Coral, then by SR–78 to SR–765, then by 

SR–765 to US–41, then by US–41 to 

US–17 (Marion Avenue) in Punta Gorda, 

then by US–17 to Riverside Drive, and 

then by Riverside Drive to the eastern 

extent of the Peace River at 81°59.467′ 

W. From the northern extent of the 

Charlotte Harbor Preserve State Park at 

26°58.933′ N, inland waters are 

bounded westward along that latitude to 

Harbor View Road, then by Harbor View 

Road to US–41, then by US–41 to SR– 

776, then by SR–776 to the Myakka 

River Bridge. 

(2) Ten Thousand Islands/Everglades 

Unit (TTI/E). The TTI/E Unit is located 

within Collier, Monroe, and MiamiDade Counties, Florida. The unit 

includes waters within Everglades 

National Park (ENP), including Florida 

Bay, in the vicinity of Everglades City, 

within the Cape Romano-Ten Thousand 

Islands Aquatic Preserve (AP), and 

within the portion of Rookery Bay AP 

south of SR–92. The boundaries match 

the portion of Rookery Bay AP south of 

SR–92, and the Cape Romano-Ten 

Thousand Islands Aquatic Preserve AP. 

The unit boundaries also closely match 

the ENP boundaries with the following 

two exceptions: the unit boundary 

connects points 55 and 57 as illustrated 

in the critical habitat map that follows, 

which extend beyond the ENP 

boundary; and the unit boundary is 

located inside the ENP boundary 

between points 77 and 2, omitting the 

northeast portion of the ENP. The 

boundary of the unit is comprised of the 

following connected points, listed by 

point number in the ID field, degrees 

North latitude, degrees West longitude, 

and brief description of the boundary. 

TABLE 2—LIST OF LATITUDE AND LONGITUDE BOUNDARY POINTS

ID Latitude Longitude Description 

1 .............. 25.2527 ¥80.7988 Main Park Road (SR–9336) at Nine Mile Pond. 

2 .............. 25.2874 ¥80.5736 Everglades National Park boundary. 

3 .............. 25.2872 ¥80.4448 Everglades National Park boundary at US–HWY 1. 

4 .............. 25.2237 ¥80.4308 Everglades National Park boundary at US–HWY 1. 

5 .............. 25.1979 ¥80.4173 Everglades National Park boundary at US–HWY 1. 

6 .............. 25.1846 ¥80.3887 Everglades National Park boundary at US–HWY 1. 

7 .............. 25.1797 ¥80.3905 Everglades National Park boundary at US–HWY 1. 

8 .............. 25.1480 ¥80.4179 Everglades National Park boundary at Intercoastal Waterway (ICW). 

9 .............. 25.1432 ¥80.4249 Everglades National Park boundary at ICW. 

10 ............ 25.1352 ¥80.4253 Everglades National Park boundary at ICW. 

11 ............ 25.1309 ¥80.4226 Everglades National Park boundary at ICW. 

12 ............ 25.1282 ¥80.4230 Everglades National Park boundary at ICW. 

13 ............ 25.1265 ¥80.4268 Everglades National Park boundary at ICW. 

14 ............ 25.1282 ¥80.4432 Everglades National Park boundary at ICW. 

15 ............ 25.0813 ¥80.4747 Everglades National Park boundary at ICW. 

16 ............ 25.0676 ¥80.4998 Everglades National Park boundary at ICW. 

17 ............ 25.0582 ¥80.5218 Everglades National Park boundary at ICW. 

18 ............ 25.0373 ¥80.5178 Everglades National Park boundary at ICW. 

19 ............ 25.0326 ¥80.5188 Everglades National Park boundary at ICW. 

20 ............ 25.0168 ¥80.5487 Everglades National Park boundary at ICW. 

21 ............ 25.0075 ¥80.5578 Everglades National Park boundary at ICW. 

22 ............ 24.9990 ¥80.5609 Everglades National Park boundary at ICW near Plantation. 

23 ............ 24.9962 ¥80.5648 Everglades National Park boundary at ICW. 

24 ............ 24.9655 ¥80.6347 Everglades National Park boundary at ICW. 

25 ............ 24.9430 ¥80.6585 Everglades National Park boundary at ICW. 

26 ............ 24.9388 ¥80.6716 Everglades National Park boundary at ICW. 

27 ............ 24.9124 ¥80.7255 Everglades National Park boundary at ICW. 

28 ............ 24.9006 ¥80.7348 Everglades National Park boundary at ICW. 

29 ............ 24.8515 ¥80.8326 Everglades National Park boundary at COLREG–72. 

30 ............ 24.8730 ¥80.8875 Everglades National Park boundary at Arsenic Bank Light. 

31 ............ 24.9142 ¥80.9372 Everglades National Park boundary at Sprigger Bank Light. 

32 ............ 25.0004 ¥81.0221 Everglades National Park boundary. 


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TABLE 2—LIST OF LATITUDE AND LONGITUDE BOUNDARY POINTS—Continued 

ID Latitude Longitude Description 

33 ............ 25.0723 ¥81.0859 Everglades National Park boundary. 

34 ............ 25.0868 ¥81.0858 Everglades National Park boundary. 

35 ............ 25.1567 ¥81.1620 Everglades National Park boundary at Middle Cape Sable. 

36 ............ 25.2262 ¥81.2044 Everglades National Park boundary. 

37 ............ 25.3304 ¥81.1776 Everglades National Park boundary at Little Shark River. 

38 ............ 25.4379 ¥81.1940 Everglades National Park boundary. 

39 ............ 25.5682 ¥81.2581 Everglades National Park boundary. 

40 ............ 25.7154 ¥81.3923 Everglades National Park boundary at Pavillion Key. 

41 ............ 25.8181 ¥81.5205 Everglades National Park boundary. 

42 ............ 25.8326 ¥81.5205 Everglades National Park boundary at Cape Romano—Ten Thousand Islands Aquatic Preserve. 

43 ............ 25.8315 ¥81.7450 Rookery Bay Aquatic Preserve boundary (southwest corner). 

44 ............ 25.9003 ¥81.7468 Rookery Bay Aquatic Preserve boundary. 

45 ............ 25.9030 ¥81.6907 Rookery Bay Aquatic Preserve boundary. 

46 ............ 25.9380 ¥81.6907 Rookery Bay Aquatic Preserve boundary at SR–92. 

47 ............ 25.9378 ¥81.6834 Rookery Bay Aquatic Preserve boundary at SR–92. 

48 ............ 25.9319 ¥81.6718 Rookery Bay Aquatic Preserve boundary at SR–92. 

49 ............ 25.9330 ¥81.6508 Rookery Bay Aquatic Preserve boundary at SR–92. 

50 ............ 25.9351 ¥81.6483 Rookery Bay Aquatic Preserve boundary at SR–92. 

51 ............ 25.9464 ¥81.6433 Rookery Bay Aquatic Preserve boundary at SR–92. 

52 ............ 25.9470 ¥81.6200 Cape Romano—Ten Thousand Islands Aquatic Preserve boundary. 

53 ............ 25.9615 ¥81.6206 Cape Romano—Ten Thousand Islands Aquatic Preserve boundary. 

54 ............ 25.9689 ¥81.6041 Cape Romano—Ten Thousand Islands Aquatic Preserve boundary. 

55 ............ 25.9130 ¥81.4569 Cape Romano—Ten Thousand Islands Aquatic Preserve boundary. 

56 ............ 25.8916 ¥81.4082 Everglades National Park boundary west of Everglades City. 

57 ............ 25.8630 ¥81.3590 Everglades National Park boundary east of Everglades City. 

58 ............ 25.8619 ¥81.2624 Everglades National Park boundary. 

59 ............ 25.8040 ¥81.2602 Everglades National Park boundary. 

60 ............ 25.8040 ¥81.2126 Everglades National Park boundary. 

61 ............ 25.7892 ¥81.2128 Everglades National Park boundary. 

62 ............ 25.7892 ¥81.1969 Everglades National Park boundary. 

63 ............ 25.7743 ¥81.1966 Everglades National Park boundary. 

64 ............ 25.7740 ¥81.1803 Everglades National Park boundary. 

65 ............ 25.7591 ¥81.1803 Everglades National Park boundary. 

66 ............ 25.7592 ¥81.1641 Everglades National Park boundary. 

67 ............ 25.7295 ¥81.1638 Everglades National Park boundary. 

68 ............ 25.7299 ¥81.1165 Everglades National Park boundary. 

69 ............ 25.7153 ¥81.1164 Everglades National Park boundary. 

70 ............ 25.7154 ¥81.1002 Everglades National Park boundary. 

71 ............ 25.6859 ¥81.0997 Everglades National Park boundary. 

72 ............ 25.6862 ¥81.0836 Everglades National Park boundary. 

73 ............ 25.6715 ¥81.0835 Everglades National Park boundary. 

74 ............ 25.6718 ¥81.0671 Everglades National Park boundary. 

75 ............ 25.6497 ¥81.0665 Everglades National Park boundary. 

76 ............ 25.6501 ¥81.0507 Everglades National Park boundary. 

77 ............ 25.6128 ¥81.0497 Everglades National Park boundary. 

(c) Areas not included in critical 

habitat. Critical habitat does not include 

the following particular areas where 

they overlap with the areas described in 

paragraph (b) of this section: 

(1) Pursuant to ESA section 3(5)(A)(i), 

all areas containing existing (already 

constructed) federally authorized or 

permitted man-made structures such as 

channels or canals maintained at depths 

greater than 3 ft. at MLLW, boat ramps, 

docks, and marinas deeper than 3 ft. at 

MLLW. 

(2) Pursuant to ESA section 3(5)(A)(i), 

all waters identified as existing (already 

constructed) federally authorized 

channels as follows: 

(i) Charlotte Harbor. 

(ii) Ft. Myers Beach (Matanzas Pass). 

(iii) Portions of the Gulf Intracoastal 

Waterway in the Caloosahatchee River. 

(d) Maps. Overview maps of 

designated critical habitat for the U.S. 

DPS of smalltooth sawfish follow. 

BILLING CODE 3510–22–P 


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Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 45377 


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45378 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 

[FR Doc. E9–21186 Filed 9–1–09; 8:45 am] 

BILLING CODE 3510–22–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0910091344–9056–02] 

RIN 0648–XR33 

Fisheries of the Economic Exclusive 

Zone Off Alaska; Shallow-Water 

Species Fishery by Vessels Using 

Trawl Gear in the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for species that comprise the 

shallow-water species fishery by vessels 

using trawl gear in the Gulf of Alaska 

(GOA). This action is necessary because 

the fourth seasonal apportionment of 

the 2009 Pacific halibut bycatch 

allowance specified for the shallowwater species fishery in the GOA has 

been reached. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), September 2, 2009, through 

1200 hrs, A.l.t., October 1, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The fourth seasonal apportionment of 

the 2009 Pacific halibut bycatch 

allowance specified for the shallowwater species fishery in the GOA is 150 

metric tons as established by the final 

2009 and 2010 harvest specifications for 

groundfish of the GOA (74 FR 7333, 

February 17, 2009), for the period 1200 

hrs, A.l.t., September 1, 2009, through 

1200 hrs, A.l.t., October 1, 2009. 

In accordance with § 679.21(d)(7)(i), 

the Administrator, Alaska Region, 

NMFS, has determined that the fourth 

seasonal apportionment of the 2009 

Pacific halibut bycatch allowance 

specified for the trawl shallow-water 

species fishery in the GOA has been 

reached. Consequently, NMFS is 

prohibiting directed fishing for the 

shallow-water species fishery by vessels 

using trawl gear in the GOA. The 

species and species groups that 

comprise the shallow-water species 

fishery are pollock, Pacific cod, shallowwater flatfish, flathead sole, Atka 

mackerel, skates and ‘‘other species.’’ 

This inseason action does not apply to 

fishing for pollock by vessels using 

pelagic trawl gear in those portions of 

the GOA open to directed fishing for 

pollock. This inseason action does not 

apply to vessels fishing under a 

cooperative quota permit in the 

cooperative fishery in the Rockfish Pilot 

Program for the Central GOA. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of the shallow-water 

species fishery by vessels using trawl 

gear in the GOA. NMFS was unable to 

publish a notice providing time for 

public comment because the most 

recent, relevant data only became 

available as of August 26, 2009. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.21 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: August 27, 2009. 

James P. Burgess, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. E9–21172 Filed 8–28–09; 4:15 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0910091344–9056–02] 

RIN 0648–XR37 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Vessels Subject to Amendment 80 

Sideboard Limits in the Western 

Regulatory Area of the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by Amendment 

80 vessels subject to sideboard limits in 

the Western Regulatory Area of the Gulf 

of Alaska (GOA). This action is 

necessary to prevent exceeding the 2009 

Pacific cod sideboard limit established 

for Amendment 80 vessels subject to 

sideboard limits in the Western 

Regulatory Area of the GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), August 28, 2009, until 2400 

hrs, A.l.t., December 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Steve Whitney, 907–586–7269. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

Regulations governing sideboard 

protections for GOA groundfish 

fisheries appear at subpart B of 50 CFR 

part 679. 

The 2009 Pacific cod sideboard limit 

established for Amendment 80 vessels 

subject to sideboard limits in the 

Western Regulatory Area of the GOA is 

two percent of the total allowable catch 

(TAC) according to § 679.20 table 37 

(http://www.alaskafisheries.noaa.gov/rr/ 

tables/tabl37.pdf). Two percent of the 

TAC for Pacific cod in the Western 

Regulatory Area of the GOA is 324 

metric tons (mt), as established by the 

final 2009 and 2010 harvest 

specifications for groundfish of the GOA 

(74 FR 7333, February 17, 2009) and 


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