Rule2022-08029
Endangered and Threatened Wildlife and Plants; Removal of Johnson's Seagrass From the Federal List of Threatened and Endangered Species Including the Corresponding Designated Critical Habitat
Primary source
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Published
April 14, 2022
Effective
May 16, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
We, NMFS, are issuing a final rule to remove Johnson's seagrass (Halophila johnsonii) from the Federal List of Threatened and Endangered Species. To correspond with this action, we are also removing the critical habitat designation for Johnson's seagrass. These actions are based on newly obtained genetic data that demonstrate that Johnson's seagrass is not a unique taxon but rather a clone of an Indo- Pacific species, Halophila ovalis. Therefore, Johnson's seagrass does not meet the statutory definition of a species and does not qualify for listing under the Endangered Species Act (ESA). After considering public comment on the proposed rule, we are implementing this final rule to execute the proposed changes to the listing and critical habitat for Johnson's seagrass.
Full Text
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<title>Federal Register, Volume 87 Issue 72 (Thursday, April 14, 2022)</title>
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[Federal Register Volume 87, Number 72 (Thursday, April 14, 2022)]
[Rules and Regulations]
[Pages 22137-22141]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08029]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 226
[Docket No. 220408-0090; RTID 0648-XR119]
Endangered and Threatened Wildlife and Plants; Removal of
Johnson's Seagrass From the Federal List of Threatened and Endangered
Species Including the Corresponding Designated Critical Habitat
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, are issuing a final rule to remove Johnson's
seagrass (Halophila johnsonii) from the Federal List of Threatened and
Endangered Species. To correspond with this action, we are also
removing the critical habitat designation for Johnson's seagrass. These
actions are based on newly obtained genetic data that demonstrate that
Johnson's seagrass is not a unique taxon but rather a clone of an Indo-
Pacific species, Halophila ovalis. Therefore, Johnson's seagrass does
not meet the statutory definition of a species
[[Page 22138]]
and does not qualify for listing under the Endangered Species Act
(ESA). After considering public comment on the proposed rule, we are
implementing this final rule to execute the proposed changes to the
listing and critical habitat for Johnson's seagrass.
DATES: This final rule is effective on May 16, 2022.
FOR FURTHER INFORMATION CONTACT: Adam Brame, NMFS Southeast Regional
Office, <a href="/cdn-cgi/l/email-protection#86c7e2e7eba8c4f4e7ebe3c6e8e9e7e7a8e1e9f0"><span class="__cf_email__" data-cfemail="edac898c80c3af9f8c8088ad83828c8cc38a829b">[email protected]</span></a>, (727) 209-5958.
SUPPLEMENTARY INFORMATION:
Background
In 1980, a small-statured seagrass species found within Florida's
southeastern coastal lagoon system was identified as Johnson's seagrass
(Halophila johnsonii) (Eiseman and McMillan 1980). Prior to this
designation, this seagrass was often referred to as H. decipiens,
though it was most similar to the morphologically diverse Indo-Pacific
species, H. ovalis. Morphological and physiological characteristics
were the bases for its later taxonomic identification as H. johnsonii.
For example, Johnson's seagrass was differentiated from other Atlantic
Halophila species by its smooth leaf margins, angle of the cross veins
extending from the midrib, and the lack of hairs on the blade surface
(Eiseman and McMillan 1980).
Given the extremely limited geographical distribution of Johnson's
seagrass (about 200 kilometers (km) of Florida's east coast), its
limited reproductive potential (only asexual reproduction), and the
variety of threats that could affect survival, we conducted a status
review in 1993 to consider whether Johnson's seagrass should be added
to the Federal List of Threatened and Endangered Species. We published
a proposed rule to list the species as threatened on September 15, 1993
(58 FR 48326), and a proposed rule to designate critical habitat on
August 4, 1994 (59 FR 39716). Additional research on the ecology of
this species subsequently became available and was considered in an
updated status review, which was completed in 1997. We published a
final rule listing Johnson's seagrass as a threatened species in 1998
(63 FR 49035, September 14, 1998) and a final rule designating critical
habitat in 2000 (65 FR 17786, April 5, 2000).
A peer reviewed manuscript published in October 2021 (Waycott et
al. 2021), used a variety of genetic analyses to conclude that
Johnson's seagrass is not a unique taxon but rather a clone of the
Indo-Pacific species H. ovalis. In light of this new information, we
initiated and completed a status review for H. johnsonii, which is
documented in the proposed rule published December 23, 2021 (86 FR
72908). Based on the best available scientific information as described
in the proposed rule, we determined that Johnson's seagrass no longer
meets the statutory definition of a species and therefore proposed to
delist it under the ESA.
Basis for the Proposed Rule
Section 3 of the ESA defines the term ``species'' as any subspecies
of fish or wildlife or plants, and any distinct population segment of
any species of vertebrate fish or wildlife which interbreeds when
mature 16 U.S.C. 1532(16). Pursuant to implementing regulations in 50
CFR 424.11(a), in determining whether a particular taxon or population
is a species under the ESA, we rely on standard taxonomic distinctions
as well as our biological expertise and that of the scientific
community concerning the relevant taxonomic group.
Under section 4(c) of the ESA, the Secretary is required to
periodically review and revise the Federal List of Endangered and
Threatened Species and consider, among other things, whether a species'
listing status should be changed, including whether the species should
be removed from the list (16 U.S.C. 1533(c)). Pursuant to implementing
regulations for the ESA at 50 CFR 424.11(e), the Secretary shall delist
a species if, after conducting a status review based on the best
scientific and commercial data available, the Secretary determines: (1)
The species is extinct; (2) the species does not meet the definition of
an endangered species or threatened species; or (3) the listed entity
does not meet the statutory definition of a species. When conducting a
status review, if we determine the entity under review does not meet
the statutory definition of a species, the status review concludes
without further evaluation, because we can only list entities that
qualify as species under the ESA.
The entity described as Johnson's seagrass grows in a variety of
conditions within Florida's intracoastal waters from Sebastian Inlet to
Virginia Key in Biscayne Bay. This is the smallest geographic
distribution of any seagrass worldwide. Within this range, it is among
the least abundant seagrass. It grows in small, sparse patches and may
disappear from areas for months or years before reappearing. It can co-
occur with other seagrasses, but its short stature precludes it from
occurring within dense stands of taller species because it is
outcompeted for light resources. Johnson's seagrass has a broader
tolerance range for light, temperature, and salinity than congeners and
seems capable of growing in suboptimal conditions where other species
cannot survive. Johnson's seagrass grows in the intertidal zone, on
dynamic flood deltas inside ocean inlets, at the mouths of freshwater
discharge canals, and subtidal waters to depths of approximately 3-4
meters.
Johnson's seagrass is dioecious, meaning each plant only contains
the flowers of one sex (male or female). Interestingly, no individual
Johnson's seagrass plants have been found with male flowers. Similarly,
researchers have not found any seedlings. These observations suggest
that Johnson's seagrass reproduces only through vegetative
fragmentation (asexual reproduction) and not through the development
and dispersal of seeds (sexual reproduction). This strategy likely
hinders its ability to expand in range and may slow recolonization
following disturbances.
At the time of listing, the best available data indicated Johnson's
seagrass: (1) Had perhaps the smallest geographic range of any seagrass
species worldwide; (2) had a sparse, patchy distribution throughout its
range and an ability to survive in a variety of environmental
conditions; (3) lacked male flowers necessary for sexual reproduction
and therefore appeared to only reproduce asexually; and (4) was unique
from other North American Halophila species based on morphology,
physiological ecology, and genetic analyses. However, the unique life
history and ecology of this seagrass raised questions about its
phylogeny (history of the evolution of a species or group, including
relatedness within a group). The 1997 status review indicated that more
detailed studies were necessary to evaluate the overall genetic
structure and diversity of H. johnsonii. This need was reiterated in
the 2002 Johnson's Seagrass Recovery Plan.
A 1997 genetics study using randomly amplified primer DNA-
polymerase chain reactions (RAPD-PCR) indicated that genetic diversity
was higher than expected at one location within the range of Johnson's
seagrass (Jewitt-Smith et al. 1997). Yet this study relied on a limited
sample size, and a subsequent study using similar techniques indicated
very low genetic diversity within H. johnsonii as compared to the co-
occurring species, H. decipiens (Freshwater 1999). The low genetic
diversity was attributed to the lack of sexual reproduction. The
[[Page 22139]]
methodology used in assessing these Halophila samples did not provide
the resolution necessary to make species level conclusions about
phylogeny.
A molecular phylogenetic analysis of the genus Halophila using
internal transcribed spacer (ITS) regions of nuclear ribosomal DNA
indicated that H. johnsonii could not be distinguished from H. ovalis
and should be further researched (Waycott et al. 2002). Umichura (2008)
came to a similar conclusion and suggested that H. johnsonii and two
other Halophila species should be reclassified as the broadly
distributed H. ovalis. Short et al. (2010) used ITS regions of nuclear
ribosomal sequences and morphology to demonstrate that Halophila
samples from Antigua belonged to H. ovalis and were genetically
identical to H. johnsonii. Short et al. (2010) also found that
Halophila samples from both Antigua and the United States (the latter
of which were previously identified as H. johnsonii) fell within the
range of morphological characteristics diagnostic for H. ovalis, and
particularly for H. ovalis from east Africa. The outcomes of these
studies raised more questions about the taxonomy of Halophila species,
particularly H. johnsonii, given its unusually restricted geographic
range, its limited reproductive strategy, and its morphometric
similarities to other Indo-Pacific species of Halophila.
NMFS began funding projects to resolve the taxonomic uncertainty of
Johnson's seagrass in 2012. Waycott et al. (2015) used multiple genetic
approaches including microsatellite DNA and next generation sequencing
to detect single nucleotide polymorphisms (SNPs). Results of this work
indicated a complete lack of genetic diversity across the range of
Johnson's seagrass and through time, indicating all samples analyzed
were from a singular clone. Samples collected and analyzed from Antigua
contained the same genetic markers as samples from Florida, suggesting
these too were part of the same clone (Waycott et al. 2015) despite the
Antigua samples having been previously identified as H. ovalis (Short
et al. 2010). Finally, Waycott et al. (2015) genetically compared
samples from both Florida and Antigua with H. ovalis samples collected
throughout that species' range (Indo-Pacific). Results indicated all
samples, regardless of location or identification, had allelic overlap
(same gene variations) at 6 of 10 microsatellite loci analyzed,
suggesting samples from the Atlantic originated from H. ovalis of the
Indo-Pacific. While this report provided further evidence that H.
johnsonii was not a unique taxon, SNP locations for H. ovalis had yet
to be verified for H. johnsonii samples and the report did not present
a comprehensive population genetic analysis of H. ovalis.
NMFS provided support for a follow-up study in 2017, recently
published as Waycott et al. (2021). This study expanded previous
efforts with the intent of solidifying the methods and providing a
robust conclusion regarding the taxonomic uncertainty within the H.
ovalis complex. The study used multiple methodological approaches and
created molecular data sets for samples of both H. johnsonii and H.
ovalis collected throughout the range of each species. Phylogenetic
analyses of 105 samples of Halophila spp. from 19 countries using
plastid (17,999 base pairs (bp)) and nuclear (6,449 bp) DNA sequences
derived from hybrid capture both resolved H. johnsonii within H.
ovalis. A third phylogenetic analysis using 48 samples from 13
populations identified 990 genome-wide SNPs (generated via double
digest restriction-site associated digest sequencing (ddRAD)) and also
nested H. johnsonii within H. ovalis. All three phylogenetic analyses
indicated H. johnsonii samples were most similar to H. ovalis samples
from Antigua and east Africa.
Waycott et al. (2021) also assessed population-level differences
using both the genome-wide SNPs (990) developed in the phylogenetic
analysis (47 of the 48 samples from 13 populations) and microsatellites
(294 samples at 10 microsatellite loci). Cluster analysis indicated
three populations within the H. ovalis complex, with H. johnsonii being
part of the Indo-Pacific/Atlantic clade. Other results demonstrated
genetic uniformity of all 132 H. johnsonii samples, indicating a
complete lack of genetic diversity that is consistent with clonal
(asexual) reproduction and a single colonization event. These same 132
samples and the 12 H. ovalis samples from Antigua shared a single
multilocus genotype at all nine comparable microsatellite loci.
Furthermore, all 12 H. johnsonii samples and the single H. ovalis
sample from Antigua genotyped with ddRAD loci shared the same
multilocus genotype. In contrast, other H. ovalis populations, such as
those from Australia, generally had multiple multilocus genotypes and
substantial genetic diversity, indicating that the genetic markers
would have detected differences if they were present. The population-
level analyses indicate that H. johnsonii is genetically
indistinguishable from H. ovalis, clustering with samples from Antigua
and east Africa.
Collectively, the Waycott et al. (2021) study concluded that the
entire range of H. johnsonii is a single clone of a morphological
variant of the Indo-Pacific species H. ovalis. After reviewing the best
information available, we agree that H. johnsonii should be synonomized
with H. ovalis and not considered a separate taxonomic species. It
cannot qualify as a distinct population segment (DPS) under the
statutory definition of a species because DPSs can be identified only
for vertebrate fish or wildlife, not plants. Therefore, H. johnsonii
does not meet the statutory definition of a species under the ESA, and
on that basis, we published a proposed rule on December 23, 2021, to
remove Johnson's seagrass from the Federal List of Threatened and
Endangered Species and to remove its corresponding critical habitat
from 50 CFR part 226 (86 FR 72908).
Public Comment
Upon publication of the proposed rule, we solicited comments during
a 60-day public comment period from all interested parties. We received
nine comments, two of which were nearly identical. Summaries of the
comments received and our responses are provided in the following
paragraphs.
Comment 1: Four commenters supported the proposed delisting based
on the information provided in the proposed rule.
Response: We thank these commenters for their support of the
proposed delisting.
Comment 2: Two commenters disagreed with the proposed delisting on
the basis of the need to continue to protect all seagrasses and
seagrass habitats given the unique ecosystem functions they provide.
One of these commenters recognized our finding that H. johnsonii is not
a species eligible for listing because it is a clone of H. ovalis, but
suggested that H. ovalis found in Florida should be listed given the
ongoing threats it faces there.
Response: While we agree with the commenters that seagrasses serve
a critical ecosystem function by, for example, stabilizing substrate
and providing both forage and habitat for a variety of species, the
best scientific information available indicates that this seagrass is
not a unique taxon but rather a clone of the Indo-Pacific species H.
ovalis. Synonymizing H. johnsonii with H. ovalis means the entity
currently listed under the ESA as Johnson's seagrass is not a taxonomic
species, and is therefore not eligible for listing under the ESA. H.
ovalis could be considered for future listing under the ESA. However,
that would require a separate
[[Page 22140]]
review to consider the status of that species throughout the entirety
or a significant portion of its range. At that time, we would be able
to evaluate whether the species is eligible for and should be listed
because of any of the threats it faces in waters off Florida.
We agree with the importance of seagrasses to the environments in
which they are found. Though delisting H. johnsonii from the ESA
removes the protections of the ESA for this ``species'' and its
critical habitat, NMFS will continue to support seagrass conservation
under other statutory authorities. For example, the South Atlantic
Fishery Management Council has identified seagrass and habitats
containing seagrasses as essential fish habitat (EFH) for certain
federally-managed fish species in the South Altantic, such as snapper
and grouper, under the Magnuson-Stevens Fishery Conservation and
Management Act (MSA). EFH is defined as ``those waters and substrate
necessary to fish for spawning, breeding, feeding, or growth to
maturity.'' 16 U.S.C. 1802(10). As required under the MSA, federal
agencies (e.g., U.S. Army Corps of Engineers) consult with NMFS on any
action that may adversely affect EFH 16 U.S.C. 1855(b)(2). NMFS
provides comments and EFH Conservation Recommendations for those
actions that affect EFH and those recommendations can include measures
to ensure federal projects avoid, minimize, and, if necessary, mitigate
impacts to EFH as a means to conserve and promote sustainable
fisheries. 16 U.S.C. 1855(b)(4); 50 CFR 600.905(b), 600.920, and
600.925. The delisting under the ESA does not affect the mechanisms to
conserve and protect seagrasses as EFH under the Magnuson-Stevens
Fishery Conservation and Management Act.
Comment 3: One commenter agreed with the agency's rationale for
delisting this seagrass but recommended further consideration for
retaining the critical habitat designation as a means of overall
ecosystem conservation.
Response: Critical habitat can only be designated for species on
the Federal List of Threatened and Endangered Species (16 U.S.C.
1532(5), 16 U.S.C. 1533(a)(3)). Therefore, the Johnson's seagrass
critical habitat designation cannot be retained when the species is
removed from the List.
Comment 4: One commenter agreed with the agency's rationale for
delisting Johnson's seagrass but expressed concern that removal from
the list could adversely affect other seagrasses that co-occupy habitat
in that region.
Response: As discussed previously, NMFS agrees with the importance
of seagrasses and their habitats and will continue to promote
conservation through the MSA (see response to Comment 2).
Summary of Changes From Proposed Rule
We evaluated whether any pertinent scientific or commercial
information became available since publication of the proposed rule. We
reviewed the best available scientific and commercial information,
including all public comments. Based on all available information, we
have made no changes from the proposed rule.
Final Determination and Effects of Determination
As proposed on December 23, 2021 (86 FR 72908), and concluded with
this final rule, we remove H. johnsonii from the Federal List of
Threatened and Endangered Species because the best available scientific
and commercial data indicate that the listed entity is synonymous with
H. ovalis and does not meet the statutory definition of a species.
Because critical habitat can only be designated for species listed
under the ESA, we also remove the designated critical habitat for H.
johnsonii. As of the effective date, the protections of the ESA will no
longer apply to H. johnsonii. However, the delisting of H. johnsonii
and removal of the designated critical habitat are specific to the ESA
and will have no effect on other Federal, state, county, or local
seagrass protections that may be in place. In addition, because H.
ovalis is not listed as an endangered species or threatened species
under the ESA, our delisting of H. johnsonii will have no effect on the
status of H. ovalis.
Per the joint NMFS-U.S. Fish and Wildlife Service Post-Delisting
Monitoring Plan Guidance (2008, updated in 2018), the post-delisting
monitoring requirements of section 4(g) of the ESA apply without
exception to all species delisted due to biological recovery, but do
not pertain to species delisted for other reasons, such as taxonomic
revision. Based on this reasoning, there is no need for a post-
delisting monitoring plan for H. johnsonii.
References Cited
The complete citations for the references used in this document can
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER
INFORMATION CONTACT).
Information Quality Act and 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 Peer Review 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 the requirements under the OMB Peer Review Bulletin, the
Waycott et al. (2021) manuscript was subjected to peer review in
accordance with the Bulletin. Our proposed action relies upon new
information within the manuscript, which we consider ``influential
scientific information.'' While the manuscript was published in the
peer-reviewed journal Frontiers in Marine Science, and peer reviewed by
that journal prior to publication, we also peer reviewed the
manuscript. We established a peer review plan that consisted of
subjecting the manuscript to review by a panel of four expert reviewers
identified by NOAA's Genetics Group. The peer review plan, which
included the charge statement to the peer reviewers, and the resulting
peer review report are posted on the NOAA peer review agenda at:
<a href="https://www.noaa.gov/organization/information-technology/peer-review-plans">https://www.noaa.gov/organization/information-technology/peer-review-plans</a>. In meeting the OMB Peer Review Bulletin requirements, we have
also satisfied the requirements of the 1994 joint U.S. Fish and
Wildlife Service and NMFS peer review policy (59 FR 34270, July 1,
1994).
Classification
National Environmental Policy Act (NEPA)
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing
to the best scientific and commercial data available. Based on this
limitation of criteria for a listing decision and the opinion in
Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), we
have concluded that NEPA does not apply to ESA listing actions. (See
NOAA Administrative Order 216-6A and the Companion Manual for NOAA
Administrative Order 216-6A, regarding Policy and Procedures for
Compliance
[[Page 22141]]
with the National Environmental Policy Act and Related Authorities.)
Executive Order 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the listing process.
In addition, this final rule is exempt from review under Executive
Order 12866. This final rule does not contain a collection of
information requirement for the purposes of the Paperwork Reduction
Act.
Executive Order 13132, Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state and local law, or impose substantial direct compliance costs on
state and local governments (unless required by statute). Neither of
these circumstances is applicable to this final rule.
List of Subjects
50 CFR Part 223
Endangered and threatened species.
50 CFR Part 226
Endangered and threatened species.
Dated: April 11, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 223 and 226
are amended as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
Sec. 223.102 [Amended]
0
2. In Sec. 223.102, in the table in paragraph (e), remove the
undesiganted heading ``Marine Plants'' and the entry for ``Seagrass,
Johnson's''.
PART 226--DESIGNATED CRITICAL HABITAT
0
3. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
Sec. 226.213 [Removed and Reserved]
0
4. Remove and reserve Sec. 226.213.
[FR Doc. 2022-08029 Filed 4-13-22; 8:45 am]
BILLING CODE 3510-22-P
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