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[Federal Register Volume 75, Number 14 (Friday, January 22, 2010)]
[Notices]
[Pages 3711-3713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1204]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 0907081108-91430-02]
RIN 0648-XP68

Listing Endangered and Threatened Wildlife and Designating 
Critical Habitat; 12-month Determination on How to Proceed with a 
Petition to Revise Designated Critical Habitat for Elkhorn and Staghorn 
Corals

AGENCY:  National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of 12-month determination.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce our 
12-month determination on how to proceed with a petition to revise the 
critical habitat designation for elkhorn (Acropora palmata) and 
staghorn (A. cervicornis) corals pursuant to section 4(b)(3)(D)(ii) of 
the Endangered Species Act (ESA) of 1973, as amended. Elkhorn and 
staghorn corals are listed as threatened throughout their ranges and 
have designated critical habitat consisting of substrate of suitable 
quality and availability to support successful larval settlement and 
recruitment, and successful reattachment and recruitment of asexual 
fragments in water depths shallower than 30 meters in four areas in 
Florida, Puerto Rico, and the U.S. Virgin Islands. The petition seeks 
to extend the northern boundary of designated critical habitat in the 
Florida area to the Lake Worth Inlet, which is approximately 15.5 miles 
(25 km) north of the current boundary at Boynton Beach Inlet, based on 
the discovery of staghorn corals north of the existing critical habitat 
boundary. We have evaluated the available scientific information and 
have decided, based on the adequacy of the existing, recent designation 
to meet the corals' conservation needs, the relatively low benefit the 
requested revision would provide, the protections afforded to the 
species from the recent ESA section 4(d) regulations, and our need to 
complete higher priority conservation activities for these and other 
coral species, to deny the petitioned action.

DATES:  The finding announced in this document was made on January 22, 
2010.

ADDRESSES:  Interested persons may obtain more information about 
critical habitat designated for elkhorn and staghorn corals online at 
the NMFS Southeast Regional Office website: http://sero.nmfs.noaa.gov/pr/esa/acropora.htm.

FOR FURTHER INFORMATION CONTACT: Jennifer Moore by phone 727-824-5312, 
fax 727-824-5309, or e-mail [email protected]; or Marta Nammack 
by phone 301-713-1401 or e-mail [email protected].

SUPPLEMENTARY INFORMATION: On January 6, 2009, NOAA received a petition 
from Palm Beach County Reef Rescue (the Petitioner) to revise the 
designated critical habitat of elkhorn (Acropora palmata) and staghorn 
(A. cervicornis) corals (PBCRR, 2009). On July 27, 2009, we issued a 
positive 90-day finding that the petition presented substantial 
scientific information indicating the revision may be warranted and 
initiated a 30-day information solicitation period (74 FR 36995). 
Section 4(a)(3)(A)(i) of the ESA (16 U.S.C. Sec. Sec.  1533 et seq.) 
requires generally that critical habitat shall be initially designated 
at the time of listing a species as threatened or endangered. The ESA 
also provides that NMFS may revise critical habitat from time-to-time 
as appropriate (section 4(a)(3)(A)(ii)). For any petition to revise a 
designated critical habitat that presents substantial scientific and 
commercial information, section 4(b)(3)(D)(ii) of the ESA provides only 
that, ``the Secretary shall determine how he intends to proceed with 
the requested revision, and shall promptly publish notice of such 
intention in the Federal Register.'' The statute says nothing more 
about options or considerations regarding the Secretary's 12-month 
determination. We have fully considered all information received in 
response to our 90-day finding and determined that the most appropriate 
action to take in response is to deny the petition.

Background

    On November 26, 2008, we published a final rule designating 
critical habitat for elkhorn and staghorn corals (73 FR 72210). On 
January 6, 2009, we received a petition from Palm Beach County Reef 
Rescue (the Petitioner) to revise elkhorn and staghorn corals' critical 
habitat

[[Page 3712]]

designation (PBCRR, 2009). Currently, designated critical habitat 
consists of substrate of suitable quality and availability to support 
larval settlement and recruitment, and the reattachment and recruitment 
of asexual fragments in water depths shallower than 30 meters in four 
areas covering 2,959 square miles (7663 sq km) of the species' ranges 
in Florida, Puerto Rico, and the U.S. Virgin Islands (73 FR 72210; 
November 26, 2008). The Petitioner requests that we extend the northern 
boundary of the Florida area to the Lake Worth Inlet, approximately 
15.5 miles (25 km) north of the current boundary at Boynton Beach 
Inlet. This extension would result in an expansion of the 1,329 square 
mile (3442 sq km) Florida area by approximately 45 square miles (116.5 
sq km).
    Section 4(b)(3)(D)(i) of the ESA requires us to make a 90-day 
finding as to whether a petition to revise critical habitat presents 
substantial scientific information indicating that the revision may be 
warranted. Our implementing regulations (50 CFR Sec.  424.14) define 
``substantial information'' as the amount of information that would 
lead a reasonable person to believe that the measure proposed in the 
petition may be warranted. Our regulations further provide that in 
making a 90-day finding on a petition to revise critical habitat, the 
``substantial information'' determination is made based upon 
considering whether a petition contains: (i) information indicating 
that areas petitioned to be added to critical habitat contain physical 
and biological features essential to, and that may require special 
management to provide for, the conservation of the species; or (ii) 
information indicating that areas designated as critical habitat do not 
contain resources essential to, or do not require special management to 
provide for, the conservation of the species (50 CFR Sec.  424.14(c)).
    The petition contains information on the location of a few staghorn 
coral colonies north of Boynton Beach Inlet. During the process of 
designating the current critical habitat areas, available information 
conflicted as to whether staghorn coral was established this far north. 
The petition also includes information about the geology of the Florida 
Reef Tract, suggesting that the feature essential to elkhorn and 
staghorn corals on which the existing designation is based is present 
in the petitioned area north of Boynton Beach Inlet. That essential 
feature is substrate of suitable quality and availability to support 
larval settlement and recruitment, and reattachment and recruitment of 
asexual fragments. ``Substrate of suitable quality and availability'' 
is defined in the designation as natural consolidated hard substrate or 
dead coral skeleton that is free from fleshy or turf macroalgae cover 
and sediment cover. The petition also contains information on the 
genetic diversity of staghorn coral. Finally, the Petitioner suggests 
that the waters of Palm Beach County represent a potential thermal 
refuge for staghorn coral. The petition does not discuss whether the 
hard substrate features in the petitioned area may require special 
management considerations or protections, but we judged it reasonable 
to assume the same management considerations and needs for protection 
applicable to the feature south of Boynton Beach Inlet would also apply 
to the feature within the petitioned area.
    Based on the information in the petition and information readily 
available in our files at the time, and pursuant to criteria specified 
in 50 CFR section 424.14(c), we made a 90-day finding that the petition 
presents substantial scientific information indicating that the 
requested revision to designated critical habitat for elkhorn and 
staghorn corals may be warranted (74 FR 36995; July 27, 2009).
    In response to our 90-day finding we received additional 
information on the presence of staghorn coral colonies within the 
general location identified in the petition. We also received a report 
verifying the presence of staghorn corals within the general vicinity 
reported by the petitioner, at about 8 miles (13 km) north of the 
current boundary of the Florida critical habitat area (Coastal Eco-
Group, 2009). The report documented 51 colonies of staghorn coral, of 
which 21 were unattached fragments, comprising 2 percent cover of the 
surveyed reef. The report stated only seven percent of the colonies 
were larger than 9.8 in (25 cm), indicating relatively recent 
colonization of the reef by staghorn coral. There were no colonies less 
than 1.9 in (5 cm) in diameter, indicating no recent sexual 
reproduction. Reconnaissance of adjacent reefs reported only one 
additional staghorn colony approximately 1,000 ft (304 m) away from the 
main site. The report also provided a description of the geology of the 
area indicating that natural unconsolidated hard substrate may be 
present; however, it suggested this feature represented relatively low 
cover and availability for staghorn coral settlement on the reef due to 
the high abundance of octocorals. Additionally, very little staghorn 
rubble was observed, indicating the reef has not recently been 
dominated by staghorn corals. No information was presented suggesting 
the elkhorn coral's range is further north than described in the 
existing critical habitat designation.
    As indicated above, the ESA provides us with broad discretion 
respecting revision of designated critical habitat, allowing us to 
determine when revision is appropriate, and affording us wide latitude 
to determine how to respond to a petition to revise critical habitat 
designations. The few past petitions requesting revisions to critical 
habitat designations have been received for designations that were 
completed many years prior to the petition, and in most of those cases 
extensive new information highlighted the inadequacy of the existing 
designation to meet the species' conservation needs. In those instances 
we have accepted the petition and initiated revisions of critical 
habitat. Unlike those circumstances, we completed the existing critical 
habitat designation for the corals less than 2 months prior to 
receiving the current petition, the designation encompasses virtually 
all of the species' current and historical occupied ranges in the 
United States, and the designation protects all of the substrate 
essential feature in these ranges, which we determined was sufficiently 
abundant to provide for these species' conservation. As discussed 
below, the requested revision would provide at most a very small 
conservation benefit to one of these coral species.
    On November 26, 2008, we designated critical habitat for staghorn 
and elkhorn corals throughout their occupied U.S. ranges (73 FR 72210). 
Because these species' historic ranges have not contracted, we 
determined that there were no unoccupied areas of critical habitat that 
might be essential to their conservation. Critical habitat is defined 
in relevant part as specific areas within the geographical area 
occupied by the species at the time it is listed in accordance with the 
provisions of section 4 of the ESA, and on which are found those 
physical or biological features: (i) essential to the conservation of 
the species; and (ii) which may require special management 
considerations or protection. We identified the key conservation 
objective for the critical habitat designation as facilitating 
increased incidence of successful sexual and asexual reproduction of 
the corals, and the essential feature to facilitate this objective as 
substrate of suitable quality and availability to support successful 
larval settlement and recruitment, and successful reattachment and 
recruitment of asexual fragments. The designation includes all the hard 
substrate that meets the definition of the essential

[[Page 3713]]

feature within the species' U.S. ranges, with the exception of some 
areas of hard substrate where these species have not been observed and 
where it was determined larvae and fragments were unlikely to settle or 
attach. Given these species' reduced abundances, and because the total 
surface area of the essential feature is far larger than the surface 
area currently occupied by the corals, we determined the current 
designation would maximize the potential for successful recruitment and 
population growth and is sufficient to provide for the conservation of 
these coral species. Section 7 consultations on the actions of Federal 
agencies that may affect the designated critical habitat will assist in 
ensuring the availability of the essential feature for the corals' 
colonization and population growth.
    In addition to the existing critical habitat designation, the 
species are protected by the recent ESA section 4(d) regulations that, 
with few exceptions for research and restoration activities, extend all 
the ESA section 9 prohibitions to them (73 FR 64264; October 29, 2008). 
We determined that the section 4(d) regulations are necessary and 
advisable to provide for the conservation of the species. The section 
4(d) regulations apply regardless of whether the species are within 
designated critical habitat. Thus, the newly discovered staghorn corals 
are protected even though they occur north of the existing critical 
habitat designation.
    The requested revision would encompass all the suitable substrate 
feature in an approximately 45 square mile (116.5 sq km) area based on 
extending the northern boundary of the Florida area approximately 15.5 
miles (25 km). However, the new information on the potential northern 
expansion of staghorn coral's range has been confirmed at approximately 
8 miles (13 km) north of Boynton Beach Inlet, or about half of the 
petitioned expansion. In addition, because the identified natural 
unconsolidated hard substrate feature is typically patchily distributed 
and does not uniformly cover the entire area, the actual area that 
would be available for settlement and recruitment in the petitioned 
area is likely much smaller, assuming that conditions within the entire 
area are conducive to coral settlement, recruitment, and survival 
everywhere the feature is present. The available information indicates 
the staghorn colonies are present on only one reef, approximately one 
mile (1.7 km) offshore in 57 ft (17.3 m) of water, and the substrate 
feature potentially available for future colonization by staghorn coral 
is present only in low abundance. Further, given the available data 
about staghorn corals' historic range, we believe it is still a 
question of scientific debate whether the petitioned area represents a 
true northward expansion of the species' range, as opposed to a 
temporary opportunistic occupation of the area by broken, storm-
transported fragments outside of their natural range. Similar to a few 
colonies of elkhorn coral recently discovered at Flower Garden Banks 
National Marine Sanctuary, the staghorn corals in the petitioned area 
require monitoring and evaluation to determine whether this is an 
actual range expansion at this point in geologic history. The existing 
designation includes all of the suitable substrate throughout both 
corals' ranges, with the exception of the substrate in the petitioned 
area. As we described in the existing designation, both species have 
precipitously declined in abundance and are sparsely distributed 
throughout their ranges. The essential substrate feature included in 
the existing designation is much more abundant than the corals, and we 
have determined there is sufficient substrate protected by the 
designation that is available for coral settlement, reattachment, 
recruitment, and population growth.
    As noted above, we received the current petition to revise critical 
habitat less than 2 months after we finalized the existing designation. 
Designating critical habitat in accordance with the provisions of the 
ESA is a significant undertaking. The process of designating the 
current critical habitat for elkhorn and staghorn corals consumed 
significant personnel resources (i.e., 1.5 full-time employees) for the 
better part of a 2-year period. Were we to undertake a revision of the 
recently designated critical habitat, our limited resources would again 
be diverted from other work, which in turn would delay the completion 
of other priorities, yet would only realize a very small change 
(offering limited benefits) in the critical habitat area for one of the 
coral species. At this time, we believe that a greater conservation 
benefit for both species of coral, and the appropriate course of 
action, lie in the completion and implementation of a recovery plan 
that is currently under development, and that will address all threats 
inhibiting the conservation and recovery of these species throughout 
their ranges. We also note that we are currently working to implement 
our mandatory obligations under the statute regarding a recently 
received petition to list 83 species of corals as endangered or 
threatened, 8 of which co-occur in the Atlantic and Caribbean Oceans 
with staghorn and elkhorn corals, and to designate critical habitat for 
these species.

Petition Determination

    Based on the information above, pursuant to the provisions of the 
ESA respecting revision of critical habitat and petitions for revision, 
we have determined it is not timely and appropriate to revise the 
recently designated critical habitat for elkhorn and staghorn corals, 
and we therefore deny the petitioned action.

    Authority: 16 U.S.C. 1531 et seq.

    Dated: January 15, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2010-1204 Filed 1-21-10; 8:45 am]
BILLING CODE 3510-22-S
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