Proposed Rule2022-22195
Endangered and Threatened Species; Designation of Critical Habitat for the Nassau Grouper
Primary source
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Published
October 17, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
We, NMFS, propose to designate critical habitat for the threatened Nassau grouper pursuant to section 4 of the Endangered Species Act (ESA). Specific occupied areas proposed for designation as critical habitat contain approximately 2,353.19 sq. kilometers (908.57 sq. miles) of aquatic habitat located in waters off the coasts of southeastern Florida, Puerto Rico, Navassa, and the United States Virgin Islands (USVI). We have considered positive and negative economic, national security, and other relevant impacts of the proposed critical habitat. We are soliciting comments from the public on all aspects of the proposal, including our identification and consideration of impacts of the proposed action.
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[Federal Register Volume 87, Number 199 (Monday, October 17, 2022)]
[Proposed Rules]
[Pages 62930-62971]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22195]
[[Page 62929]]
Vol. 87
Monday,
No. 199
October 17, 2022
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Parts 223 and 226
Endangered and Threatened Species; Designation of Critical Habitat for
the Nassau Grouper; Proposed Rule
Federal Register / Vol. 87, No. 199 / Monday, October 17, 2022 /
Proposed Rules
[[Page 62930]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 226
[Docket No. 221005-0211]
RIN 0648-BL53
Endangered and Threatened Species; Designation of Critical
Habitat for the Nassau Grouper
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, NMFS, propose to designate critical habitat for the
threatened Nassau grouper pursuant to section 4 of the Endangered
Species Act (ESA). Specific occupied areas proposed for designation as
critical habitat contain approximately 2,353.19 sq. kilometers (908.57
sq. miles) of aquatic habitat located in waters off the coasts of
southeastern Florida, Puerto Rico, Navassa, and the United States
Virgin Islands (USVI). We have considered positive and negative
economic, national security, and other relevant impacts of the proposed
critical habitat.
We are soliciting comments from the public on all aspects of the
proposal, including our identification and consideration of impacts of
the proposed action.
DATES: Written comments and information must be received by December
16, 2022.
Public hearing meetings: If requested, we will hold at least one
public hearing on this proposed rule.
ADDRESSES: You may submit data, information, and comments on this
document identified by NOAA-NMFS-2022-0073, as well as the supporting
documents, by the following methods:
<bullet> Electronic Submission: Submit electronic information via
the Federal e-Rulemaking Portal. Go to <a href="http://www.regulations.gov">www.regulations.gov</a> and enter
NOAA-NMFS-2022-0073. Click on the ``Comment'' icon and complete the
required fields. Enter or attach your comments.
<bullet> Mail: Submit written comments to Assistant Regional
Administrator, Protected Resources Division, NMFS, Southeast Regional
Office, 263 13th Avenue South, St. Petersburg, FL 33701.
Instructions: Comments sent by any other method or received after
the end of the specified period may not be considered. All comments
received are a part of the public record and generally will be posted
for public viewing on <a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal
identifying information (e.g., name, address, etc.), confidential
business information, or otherwise sensitive or protected information
submitted voluntarily by the sender will be publicly accessible. NMFS
will accept anonymous submissions (enter ``N/A'' in the required fields
if you wish to remain anonymous). Attachments to electronic comments
will be accepted in Microsoft Word, Excel, or Adobe portable electronic
file (PDF) formats only. The petition and previous rulemaking documents
related to the listing of the species can be obtained electronically on
our website at: <a href="https://www.fisheries.noaa.gov/species/nassau-grouper#conservation-management">https://www.fisheries.noaa.gov/species/nassau-grouper#conservation-management</a>. The Endangered Species Act Critical
Habitat Report that was prepared to support the development of this
proposed rule is available on <a href="http://www.regulations.gov">www.regulations.gov</a> (enter NOAA-NMFS-
2022-0073) for public review and comment.
FOR FURTHER INFORMATION CONTACT: Patrick Opay, <a href="/cdn-cgi/l/email-protection#5909382d2b303a3277162938201937363838773e362f"><span class="__cf_email__" data-cfemail="0c5c6d787e656f6722437c6d754c62636d6d226b637a">[email protected]</span></a>,
727-551-5789.
SUPPLEMENTARY INFORMATION:
Background
Section 3(5)(A) of the ESA defines critical habitat as (i) the
specific areas within the geographical area occupied by the species, at
the time it is listed, 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; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination by the Secretary
of Commerce (Secretary) that such areas are essential for the
conservation of the species. (16 U.S.C. 1532(5)(A)). Conservation is
defined in section 3(3) of the ESA as the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this Act are no longer necessary (16 U.S.C. 1532(3)). Section
3(5)(C) of the ESA provides that, except in those circumstances
determined by the Secretary, critical habitat shall not include the
entire geographical area which can be occupied by the threatened or
endangered species.
Section 4(b)(2) of the ESA requires the Secretary to designate
critical habitat for threatened and endangered species under the
jurisdiction of the Secretary on the basis of the best scientific data
available and after taking into consideration the economic impact, the
impact on national security, and any other relevant impact of
specifying any particular area as critical habitat. This section also
grants the Secretary discretion to exclude any area from critical
habitat if the secretary determines the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat. However, the Secretary may not exclude areas if such exclusion
will result in the extinction of the species (16 U.S.C. 1533(b)(2)).
Once critical habitat is designated, section 7(a)(2) of the ESA
requires Federal agencies to ensure that actions they authorize, fund,
or carry out are not likely to destroy or adversely modify that habitat
(16 U.S.C. 1536(a)(2)). This requirement is in addition to the section
7(a)(2) requirement that Federal agencies ensure their actions are not
likely to jeopardize the continued existence of ESA-listed species.
Specifying the geographic area identified as critical habitat also
facilitates implementation of section 7(a)(1) of the ESA by identifying
areas where Federal agencies can focus their conservation programs and
use their authorities to further the purposes of the ESA. See 16 U.S.C.
1536(a)(1). The ESA section 7 consultation requirements do not apply to
citizens engaged in actions on private land that do not involve a
Federal agency, for example, if a private landowner is undertaking an
action that does not require a Federal permit or is not federally-
funded.
This proposed rule summarizes relevant information regarding the
biology and habitat use of Nassau grouper, the methods used to develop
the proposed critical habitat designations, and the proposed critical
habitat. The following supporting documents provide more detailed
discussions of information and analyses that contributed to the
conclusions presented in this proposed rule: Nassau Grouper Biological
Report (Hill and Sadovy de Mitcheson, 2013), Endangered Species Act
Critical Habitat Report (NMFS, 2022). These supporting documents are
referenced throughout this proposed rule and are available for review
(see ADDRESSES).
On July 5, 2022, the United States District Court for the Northern
District of California issued an order vacating regulations,
promulgated in 2019, that adopted changes to 50 CFR part 424 (84 FR
45020, August 27, 2019) (the 2019 rule). Among other things, the 2019
rule made changes to the definition of ``physical or biological
features'' (50 CFR 424.02) and the criteria for designating specific
areas outside the
[[Page 62931]]
geographical area occupied by the species as critical habitat (50 CFR
424.12(b)(2)). On September 21, 2022, the U.S. Court of Appeals for the
Ninth Circuit granted a temporary stay of the district court's July 5th
order. As a result, the 2019 rule is once again in effect, and we are
applying the 2019 regulations here. For purposes of this determination,
we considered whether the analysis or its conclusions would be any
different under the pre-2019 regulations. We have determined that our
analysis and conclusions presented here would not be any different.
As detailed in the sections that follow, the specific occupied
areas proposed for designation as critical habitat for the Nassau
grouper contain approximately 2,352.27 sq. kilometers (908.22 sq.
miles) of marine habitat within the western North Atlantic Ocean,
including two sites used for spawning.
Species Description
Nassau grouper, Epinepheuls striatus (Bloch 1792), are long-lived,
moderate sized fish (family Epinephelidae) with large eyes and a robust
body. Their coloration is generally buff, with distinguishing markings
of five dark brown vertical bars, a large black saddle blotch on the
caudal peduncle (i.e., the tapered region behind the dorsal and anal
fins where the caudal fin attaches to the body), and a row of black
spots below and behind each eye. Juveniles exhibit a color pattern
similar to adults (e.g., Silva Lee, 1977). Individuals reach sexual
maturity between 4 and 8 years (Sadovy and Colin, 1995; Sadovy and
Eklund, 1999). Nassau grouper undergo ontogenetic shifts in habitat
utilization: larvae settle in nearshore habitats and then as juveniles
move to nearshore patch reefs (Eggleston, 1995), and eventually recruit
to deeper waters and reef habitats (Sadovy and Eklund, 1999). As
adults, individuals are sedentary except for when they aggregate to
spawn--the timing of which appears to be linked to both lunar cycles
and water temperature (Kobara et al., 2013). Maximum age has been
estimated as 29 years, based on an ageing study using sagittal otoliths
(Bush et al., 2006). Maximum size is about 122 cm total length (TL) and
maximum weight is about 25 kg (Heemstra and Randall, 1993).
Natural History and Habitat Use
The Nassau grouper, like most large marine reef fishes,
demonstrates a bi-partite life cycle with demersal adults and juveniles
but pelagic eggs and larvae. It transitions through a series of
ontogenetic shifts of both habitat and diet from larval to adult stage.
Adults are sedentary except for spawning periods. Reproduction is known
only to occur during annual aggregations, in which large numbers of
Nassau grouper, ranging from dozens to tens of thousands, collectively
gather to spawn at predictable times and locations.
In the following sections, we describe the natural history of the
Nassau grouper as it relates to habitat needs from the egg and larval
stage to settlement into nearshore habitats followed by a progressive
offshore movement with increasing size and maturation.
Egg and Larval Planktonic Stage
Fertilized eggs are pelagic, measure about 1 mm in diameter, and
have a single oil droplet about 0.22 mm in diameter (Guitart-Manday and
Ju[aacute]rez-Fernandez, 1966). Data from eggs produced in an aquarium
(Guitart-Manday and Juarez-Fernandez, 1966) and artificially fertilized
in the laboratory (Powell and Tucker, 1992; Colin, 1992) indicate
spherical, buoyant eggs that hatch 23-40 hours following fertilization.
Eggs of groupers that spawn at sea will require a salinity of about 30
parts per thousand (ppt) or higher for them to float, but slightly
lower salinity can be tolerated even though the eggs sink (Tucker,
1999).
The pelagic larvae begin feeding on zooplankton approximately 2-4
days after hatching (Tucker and Woodward, 1994). Newly hatched larvae
in the laboratory measured 1.8 mm notochord length and were slightly
curved around the yolk sac (Powell and Tucker, 1992). Nassau grouper
larvae are rarely reported from offshore waters (Leis, 1987) and little
is known of their movements or distribution. The pelagic larval period
has been reported to range from 37 to 45 days based on otolith analysis
of newly settled juveniles in the Bahamas (Colin et al., 1997) with a
mean of 41.6 days calculated from net-caught samples (Colin, 1992;
Colin et al., 1997). Collections of pelagic larvae were made 0.8 to 16
km off Lee Stocking Island, Bahamas, at 2 to 50 m depths and from tidal
channels leading onto the Exuma Bank (Greenwood, 1991). Larvae were
widely dispersed or distributed in patches of various sizes (Greenwood,
1991). Larvae collected 10 days after back-calculated probable spawning
date measure 6-10 mm standard length (SL) and attain a maximum size of
30 mm SL (Sheneker et al., 1993).
Larval Settlement
After spending about 40 days in the plankton, in the Bahamas,
Nassau grouper larvae have been found to recruit from the oceanic
environment into demersal, bank habitats through tidal channels (Colin,
1992). This recruitment process can be brief and intense, and has been
found to be associated with prevailing winds, currents, and lunar phase
occurring in short pulses during highly limited periods each year
(Shenker et al., 1993). These late larvae-early juvenile Nassau grouper
(18-30 mm TL) were collected with plankton nets as they moved inshore
from pelagic environments to shallower nursery habitats (Shenker et
al., 1993). The link between spawning and settlement sites is not
understood.
Most of what is known about the earliest cryptic life stages is
known from research in the Bahamas where recently settled Nassau
grouper were found to be on average 32 mm TL when they recruit into the
nearshore habitat and settle out of the plankton (Eggleston, 1995).
Newly settled or post-settlement fish found by Eggleston (1995) ranged
in size from 25-35 mm TL and were patchily distributed at 2-3 m depth
in substrates characterized by numerous sponges and stony corals with
some holes and ledges residing exclusively within coral clumps (e.g.,
Porites spp.) covered by masses of macroalgae (primarily the red alga
Laurencia spp.). Stony corals provided attachment sites for red algae
since direct holdfast attachment was probably inhibited by heavy layers
of coarse calcareous sand. This algal and coral matrix also supported
high densities and a diverse group of xanthid crabs, hippolytid shrimp,
bivalve, gastropods and other small potential prey items. In the USVI,
Beets and Hixon (1994) observed groupers on a series of nearshore
artificial reefs constructed of cement blocks with small and large
openings and found the smallest Nassau groupers (30.0-80.0 mm TL) were
closely associated with the substrate, usually in small burrows under
the concrete blocks. Growth during this period was about 10 mm/month
(Eggleston, 1995).
Juveniles
After settlement, Nassau grouper grow through three juvenile
stages, defined by size, as they progressively move from nearshore
areas adjacent to the coastline to shallow hardbottom areas that
include seagrass habitat. The size ranges for the three juveniles
stages, which we discuss in more detail below, are approximations and
are not always collected the same way between studies. Juvenile Nassau
grouper reside within these nearshore hardbottom areas for about the
next 1 to 2 years, where they are found associated with structure in
areas intermediate between the
[[Page 62932]]
nearshore and offshore reefs in both seagrass (Eggleston, 1995; Camp et
al., 2013; Claydon and Kroetz, 2008; Claydon et al., 2009, 2010; Green,
2017) and hardbottom areas (Bardach, 1958; Beets and Hixon, 1994;
Eggleston, 1995; Camp et al., 2013; Green, 2017). Juvenile Nassau
grouper leave these refuges to forage and when they transition to new
habitats (Eggleston, 1995; Eggleston et al., 1998).
Newly Settled (Post-Settlement) Juveniles (~2.5-5 cm TL)
Most of what is known about the earliest demersal life stages of
Nassau grouper comes from a series of studies conducted from 1987-1994
near Lee Stocking Island in the Exuma Cays, Bahamas as reported by
Eggleston (1995). These surveys and experiments in mangrove-lined
lagoons and tidal creeks (1-4 m deep), seagrass beds, and sand or patch
reef habitats helped identify the Nassau grouper's early life
ontogenetic (i.e., developmental) habitat changes. Benthic habitat of
newly settled Nassau grouper (mean = 31.7 mm TL, standard deviation
(SD) = 2.9, n = 31) was described as exclusively within coral clumps
(e.g., Porites spp.) covered by masses of macroalgae (primarily the red
alga Laurencia spp.). These macroalgal clumps were patchily distributed
at 2 to 3 m depths in substrate characterized by numerous sponges and
stony corals, with some holes and ledges. The stony corals (primarily
Porites spp.) provided attachment sites for red algae since direct
holdfast attachment was probably inhibited by heavy layers of coarse
calcareous sand and minor amounts of silt and detritus. The open
lattice of the algal-covered coral clumps provided cover and prey and
facilitated the movement of individuals within the interstices of the
clumps (Eggleston 1995). Post-settlement Nassau grouper were either
solitary or aggregated within isolated coral clumps. Density of the
post-settlement fish was greatest in areas with both algal cover and
physical structure (Eggleston, 1995). A concurrent survey of the
adjacent seagrass beds found abundance of nearly settled Nassau grouper
was substantially higher in Laurencia spp. habitats than in neighboring
seagrass (Eggleston, 1995).
Eggleston (1995) found the functional relationship between percent
algal cover and post-settlement density was linear and positive
compared to other habitat characteristics such as algal displacement
volume, and the numbers of holes, ledges, and corals. Recently-settled
Nassau grouper have also been collected from tilefish, Malacanthus
plumieri, rubble mounds, with as many as three fish together (Colin et
al., 1997). They have been reported as associated with discarded queen
conch, Strombus gigas, shells and other debris within Thalassia beds
(Claydon et al., 2009, 2010) in the Turks and Caicos Islands, although
the exact fish sizes observed are not clear. Post-settlement survival
in macroalgal habitats is higher than in seagrass beds, showing a
likely adaptive advantage for the demonstrated habitat selection
(Dahlgren and Eggleston, 2000). Nassau grouper remain in the shallow
nearshore habitat for about 3 to 5 months following settlement and grow
at about 10 mm/month (Randall, 1983; Eggleston, 1995).
Early Juveniles (~4.5-15 cm TL)
Band transects performed near Lee Stocking Island, Bahamas, 4-5
months after the settlement period (June 1991-93) found that early
juveniles (mean = 8.5 cm TL, SD = 11.7, n = 65) demonstrated a subtle
change in microhabitat; 88 percent were solitary within or adjacent to
algal-covered coral clumps (Eggleston, 1991). As the early juveniles
grew, reef habitats, including solution holes and ledges, took on
comparatively greater importance as habitats (Eggleston, 1991). Low
habitat complexity was associated with increase predation rates and
lower the survival of recruits (Dahlgren and Eggleston, 2000).
Early juveniles in the Bahamas have a disproportionately high
association with the macroalgae Laurencia spp. and other microhabitats
(e.g., seagrass, corals) used according to availability (Dahlgren and
Eggleston, 2001). Reports from Mona Island, Puerto Rico (Aguilar-Perera
et al., 2006) found early juveniles (60-120 mm TL) at the edge of a
seagrass patch, under rocks surrounded by seagrass, in a tire, and in a
dissolution hole in shallow bedrock.
A conspicuous change in habitat occurs about 4-5 months post-
settlement when Nassau grouper move from nearshore macroalgae to
adjacent patch reefs located within either seagrass or intermediate
hardbottom areas. In the Bahamas, early juvenile Nassau grouper (12-15
cm TL) exhibited an ontogenetic movement from macroalgal clumps to
patch reef habitats in the late summer and early fall after settlement
in the winter as demonstrated by a significant decrease in the
macroalgal habitat and concomitant increase in the seagrass meadows
(Eggleston, 1995). Similarly in the Turks and Caicos, 87 percent of
early juvenile Nassau grouper (identified as less than 12 cm TL, n =
181) were found in seagrass and 10 percent were found in rock or rubble
habitat (Claydon and Kroetz, 2008). Within the Turks and Caicos
seagrass habitat, 44 percent of the early juveniles were found in
discarded conch shells and 33 percent were found along blowout ledges
(Claydon and Kroetz, 2008) and individuals were rarely seen in open
areas, instead they were usually seen in close proximity to a structure
or sheltering within structure (i.e., discarded conch shell or blowout
ledge). Density of Nassau grouper (>12 cm TL) was found to increase
when discarded conch shells were placed in seagrass habitat (Claydon et
al., 2009) perhaps due to reduced mortality as the structure limited
access of larger predators (Claydon et al,. 2010).
On shallow constructed block reefs in the USVI, newly settled and
early juveniles (3-8 cm TL) occupied small separate burrows beneath the
reef while larger juveniles occupied holes in the reefs (Beets and
Hixon, 1994).
Juvenile fish are vulnerable to predation (large fish, eels, other
groupers and sharks) and utilize refuges to protect themselves (Beets
and Hixon, 1994; Eggleston 1995; Claydon and Kroetz, 2008) and to
forage for crustaceans (Eggleston et al., 1998; Claydon and Kroetz,
2008). Juveniles often associate with refuges proportional to their
body size (Beets and Hixon, 1994) and seek new shelter as they grow
(Eggleston, 1995). Suitable refuges may protect juveniles from
predation, but juveniles leave their refuges to forage for food and
during ontogenetic shifts in habitat (Eggleston, 1995).
Late Juveniles (~15-50 cm TL)
Camp et al. (2013) conducted a broad-scale survey in the shallow
nearshore lagoons of Little Cayman and found Nassau grouper (12-26 cm
TL) on hardbottom areas more frequently than other more available
habitats (sand, seagrass and algae). Eighty-two percent of juvenile
Nassau grouper (mean = 18.4 cm TL, SD = 3.4, n = 142) were found at
depths from 1.0-2.3 m in hardbottom habitat that provided crevices,
holes, ledges and other shelter, with 10-66 percent of the holes with
grouper also containing one or more cleaning organisms (i.e., banded
coral shrimp, Elacatinus gobies, and bluehead wrasse, Thalasoma
bifasciatum). A small percentage of Nassau grouper (3 percent) were
found in other habitat sheltered in holes (i.e., concrete blocks or
conch shells). Overall, the vast majority of juvenile Nassau grouper
were associated with some form of shelter that should help them avoid
predators, suggesting that shelter
[[Page 62933]]
represents a primary determinant of microhabitat use (Camp et al.,
2013).
As late juveniles, Nassau grouper may occupy seagrass habitats for
food and protection from predators (Claydon and Kroetz, 2008); they
forage for crustaceans in seagrass beds (Eggleston et al., 1998) and
use structures such as macroalgae and hardbottom substrate as refuge
(Eggleston, 1995; Camp et al., 2013). In a survey of seagrass bays in
the USVI, Green (2017) found juvenile Nassau grouper (n = 46, 6-30 cm
TL) more abundant with taller canopy and less dense native seagrass
compared to higher density and low canopy height; differences in
abundance were attributed to the higher canopy providing better cover
from predators (Beets and Hixon, 1994). Tall seagrass also increases
hiding places for their prey (Eggleston, 1995) and the less dense
seagrass habitats permitted better movement by Nassau grouper to forage
(Green, 2017).
Juvenile Nassau grouper also rely on hardbottom structure for
providing prey. Nassau grouper residing on patch reefs are capable of
short bursts of speed that allow them to ambush crabs located up to 7 m
away from a patch reef and return to a reef within 5 seconds (D.
Eggleston Pers. Comm. as cited in Eggleston et al., 1999). Structure in
these areas can be natural or artificial and include crevices, holes,
ledges, and other shelters. Suitable refuges provide cover for juvenile
Nassau grouper with crevices proportionate to their body size (Beets
and Hixon, 1994).
As juveniles grow, they move progressively to deeper banks and
offshore reefs (Tucker et al., 1993; Colin et al. 1997). In Bermuda,
Bardach (1958) noted that few small Nassau grouper (less than 4 inches
or 10 cm TL) were found on outer reefs and few mature fish were found
on inshore reefs; weight of mature individuals trapped in the deep
areas was about double that taken in the shallow areas. While there can
be an overlap of adults and juveniles in hardbottom habitat areas, a
general size segregation with depth occurs with smaller fish in shallow
inshore waters (3 to 17 m) and larger individuals more common on deeper
(18 to 55 m) offshore banks (Bardach et al., 1958; Cervig[oacute]n,
1966; Silva Lee, 1974; Radakov et al., 1975; Thompson and Munro, 1978).
Adults
Both male and female Nassau grouper typically mature between 40 and
45 cm SL (44 and 50 cm TL), with most individuals attaining sexual
maturity by about 50 cm SL (55 cm TL) and about 4-5 years of age (see
Table 1 and additional details in Hill and Sadovy de Mitchenson, 2013)
with most fish spawning by age 7+ years (Bush et al., 2006).
Adults are found near shallow, high-relief coral reefs and rocky
bottoms to a depth of at least 90 m (Bannerot, 1984; Heemstra and
Randall, 1993). Report from fishing activities in the Leeward Islands
show that although Nassau grouper was fished to 130 m, the greatest
trap catches were from 52-60 m (Brownell and Rainey, 1971). In
Venezuela, Nassau grouper were cited as common to 40 m in the
Archipelago Los Roques (Cervig[oacute]n, 1966). Nassau groupers tagged
with depth sensors in Belize exhibited marked changes in depth at
specific times throughout the year: 15-34 m range from May through
December, followed by movement to very deep areas averaging 72 m with a
maximum of 255 m for a few months during spawning periods, then
returning to depths of about 20 m in April (Starr et al., 2007).
Adults lead solitary lives outside of spawning periods and tend to
be secretive, often seeking shelter in reef crevices, ledges, and
caves, rarely venturing far from cover (Bardach, 1958; Starck and
Davis, 1966; Bohlke and Chaplin, 1968; Smith, 1961, 1971; Carter, 1988,
1989). Although they tend to be solitary, individuals will crowd
peacefully in caves or fish traps with some proclivity to re-enter fish
traps resulting in multiple recaptures (Randall, 1962; Sadovy and
Eklund, 1999; Bolden, 2001). Nassau grouper have the ability to home
(Bardach et al., 1958; Bolden, 2000) and remain within a highly
circumscribed area for extended periods (Randall, 1962 1963; Carter et
al., 1994; Bolden, 2001). In the Florida Keys, adult Nassau grouper
(n=12) were found more often in high- and moderate-relief habitats
compared to low-relief reefs (Sluka et al., 1998). Habitat complexity
has been found to influence home range of adult Nassau grouper with
larger home ranges at less structurally-complex reefs (Bolden, 2001).
Nassau grouper are diurnal or crepuscular in their movements (Collette
and Talbot, 1972). Bolden (2001) investigated diel activity patterns
via continuous acoustic telemetry and found Nassau groupers are more
active diurnally and less active nocturnally with activity peaks at
1000 and 2000 hours.
Importance of Shelter
For many reef fishes, access to multiple quality habitats and
microhabitats represents a critical factor determining settlement
rates, post-settlement abundances, mortality rates, and growth rates
because suitably sized refuges provide protection from predators and
access to appropriate food (Shulman, 1984; Hixon and Beets, 1989;
Eggleston et al., 1997, 1998; Grover et al., 1998; Lindeman et al.,
2000; Dahlgren and Eggleston, 2000, 2001; Dahlgren and Marr, 2004;
Eggleston et al., 2004). Many adult reef fish and invertebrates use
intermediate hardbottom areas as juveniles.
As Nassau grouper move from their nearshore settlement habitat,
through intermediate hardbottom/seagrass habitats, to the offshore
reefs they occupy as adults, shelter is an essential component that
connects these habitats and provides cover. Availability of suitably
sized shelters may be a key factor limiting successful settlement and
survival for juvenile Nassau grouper and related species that settle
and recruit to shallow, off-reef habitats (Hixon and Beets, 1989;
Eggleston, 1995; Lindeman et al., 2000; Dahlgren and Eggleston, 2001).
In addition, shelters of different sizes may govern the timing and
success of ontogenetic movements to adult habitats (Caddy, 1986; Moran
and Reaka, 1988; Eggleston, 1995). Camp et al. (2013) found juvenile
Nassau grouper use shelters of varying sizes and degrees of complexity.
Suitably-sized refuge from predators is expected to be a key
characteristic supporting the survival and growth of juvenile Nassau
grouper and other species, with access to food resources likely
representing another key, and sometimes opposing, characteristic
(Shulman, 1984; Hixon and Beets, 1989; Eggleston et al., 1997, 1998;
Grover et al., 1998; Dahlgren and Eggleston, 2001). The transition to
these new habitats, however, heightens predation risk if habitats are
far apart (Sogard, 1997; Tupper and Boutilier, 1997; Almany and
Webster, 2006) and there is minimal cover between them (Dahlgren and
Eggleston, 2000; Caddy, 2008). Nassau grouper rely on shelter to safely
move between these interconnected habitats. Benthic juvenile fish rely
on complex structure to protect themselves from predation and the
simplification of habitats can lead to declines in recruitment (Caddy,
2008). Stock replenishment is threatened by degradation of the habitats
of successive life stages. Nassau grouper must often risk predation by
crossing seascapes where cover connectivity is limited. Loss of cover
therefore increases mortality, reduces foraging success, and affects
other life-history activities.
Diet
In the planktonic stage, the yolk and oil in the egg sac nourish
the early yolk-sac larva as it develops prior to
[[Page 62934]]
hatching. The pelagic larvae begin feeding on zooplankton approximately
2-4 days after hatching when a small mouth develops (Tucker and
Woodward, 1994). In the laboratory, grouper larvae eat small rotifers,
copepods, and mixed zooplankton, including brine shrimp (Tucker and
Woodward, 1994). Diet information for newly settled Nassau grouper is
based on visual observations indicating that young fish (20.2-27.2 mm
SL) feed on a variety of plankton, including pteropods, ostracods,
amphipods, and copepods (Greenwood, 1991; Grover et al., 1998). A
similar invertebrate diet has been described for recently settled and
post-settlement stage (25-35 mm TL) Nassau grouper in the Bahamas that
live within the macroalgae and seagrass blades and forage for xanthid
crabs, hippolytid shrimp, bivalves, and gastropods (Eggleston, 1995).
More detailed diet information is available for juveniles and
adults. Stomach contents of juvenile Nassau grouper (5-19 cm TL)
collected from seagrass beds near Panama contained primarily
porcellanid and xanthid crabs with minor amounts of fish (Heck and
Weinstein, 1989). Four dominant prey were ingested by small (<20 cm TL)
Nassau grouper in the Bahamas: stomatopods, palaemonid shrimp, and
spider and portunid crabs (Eggleston et al., 1998). Fish and spider
crabs made up the bulk of the diet for both mid-size (20.0 cm-29.9 cm
TL) and large (>30 cm TL) Nassau grouper in opposite proportion: spider
crabs dominated the diet of the mid-size fish while fish were the most
important prey for large Nassau grouper (Eggleston et al., 1998).
Juveniles generally engulfed their prey whole (Eggleston et al. 1998).
Smaller juveniles ate greater numbers of prey than larger grouper, but
the individual prey items ingested by larger grouper weighed more
(Eggleston et al., 1998). Similar ontogenetic changes in the Nassau
grouper diet were reported by Randall (1965) and Eggleston et al.
(1998) who analyzed stomach contents and determined that juveniles fed
mostly on crustaceans, while adults foraged mainly on fishes.
As adults, Nassau grouper are unspecialized-ambush-suction
predators (Randall, 1965; Thompson and Munro, 1978) that lie under
shelter, wait for prey, and then quickly expand their gill covers to
create a current to engulf prey by suction (Thompson and Munro, 1978;
Carter, 1986) and swallow their prey whole (Werner, 1974, 1977).
Numerous studies describe adult Nassau groupers as piscivores, with
their diet dominated by reef fishes: parrotfish (Scaridae), wrasses
(Labridae), damselfishes (Pomacentridae), squirrelfishes
(Holocentridae), snappers (Lutjanidae), groupers (Epinephelidae) and
grunts (Haemulidae) (Randall and Brock, 1960; Randall, 1965, 1967;
Parrish, 1987; Carter et al., 1994; Eggleston et al., 1998). The
propensity for adult Nassau grouper to consume primarily fish (Randall,
1965; Eggleston et al., 1998) may be due to increased visual perception
and swimming-burst speed with increasing body size (e.g., Kao et al.,
1985; Ryer, 1988). Large Nassau grouper are probably foraging on reef-
fish prey that are either associated with a reef (Eggleston et al.,
1997) or adjacent seagrass meadows. In general, groupers have been
characterized from gut content studies as generalist opportunistic
carnivores that forage throughout the day (Randall, 1965, 1967; Goldman
and Talbot, 1976; Parrish, 1987) perhaps being more active near dawn
and dusk (Parrish, 1987; Carter et al., 1994). Comparison of Nassau
grouper stomach contents from natural and artificial reefs were found
to be generally similar (Eggleston et al., 1999). While Smith and Tyler
(1972) classified Nassau grouper as nocturnally active residents,
Randall (1967) investigated Nassau grouper gut contents and determined
that feeding can take place around the clock although most fresh food
is found in stomachs collected in the early morning and at dusk. Silva
Lee (1974) reported Nassau grouper with empty stomachs throughout
daylight hours.
Spawning
The most recognized Nassau grouper habitats are the sites where
adult males and females assemble briefly at predictable times during
winter full moons for the sole purpose of reproduction. These spawning
aggregation sites are occupied by Nassau grouper during winter full
moon periods, from about November and perhaps extending to May (USVI)
(Nemeth et al., 2006). Aggregations consist of hundreds, thousands, or,
historically, tens of thousands of individuals. Some aggregations have
consistently formed at the same locations for 90 years or more (see
references in Hill and Sadovy de Mitcheson 2013). All known
reproductive activity for Nassau grouper occurs in aggregations; pair
spawning has not been observed. About 50 spawning aggregation sites
have been recorded, mostly from insular areas in the Bahamas, Belize,
Bermuda, British Virgin Islands, Cayman Islands, Cuba, Honduras,
Jamaica, Mexico, Puerto Rico, Turks and Caicos, and the USVI; however,
many of these may no longer form (Figure 10 in Hill and Sadovy de
Mitcheson, 2013). While both the size and number of spawning
aggregations has diminished, spawning is still occurring in some
locations (NMFS, 2013).
Spawning aggregation sites typically occur near the edge of insular
platforms in a wide (6-50 m) depth range, as little as 350 m from the
shore, and close to a drop-off into deep water. Sites are
characteristically small, highly circumscribed areas, measuring several
hundred meters in diameter, with a diversity of bottom types: soft
corals, sponges, stony coral outcrops, and sandy depressions (Craig,
1966; Smith 1990; Beets and Friedlander, 1992; Colin, 1992; Aguilar-
Perera, 1994).
Fidelity at one aggregation site (Grammanik Bank, USVI) has been
investigated (Bernard et al., 2016) revealing some adults will return
to the same location across years. Adults are known to travel hundreds
of kilometers (Bolden, 2000) to gather at specific locations to spawn.
While aggregated, the Nassau grouper are extremely vulnerable to
overfishing (Sadovy de Mitcheson et al., 2008).
It is not known how Nassau grouper select and locate aggregation
sites or why they aggregate to spawn. Variables that are considered to
influence spawning site suitability include geomorphological
characteristics of the seabed, hydrodynamics including current speed
and prevailing direction of flow to disperse eggs and larvae, seawater
temperature, and proximity to suitable benthic habitats for settlement.
The link between spawning sites and settlement sites is not well
understood. The geomorphology of spawning sites has led researchers to
assume that offshore transport was a desirable property of selected
sites. However, currents in the vicinity of aggregation sites do not
necessarily favor offshore egg transport, leaving open the possibility
that some stocks are at least partially self-recruiting. Additional
research is needed to understand these spatial dynamics.
The biological cues known to be associated with Nassau grouper
spawning include photoperiod (i.e., length of day), water temperature,
and lunar phase (Colin, 1992). The timing and synchronization of
spawning may be to accommodate immigration of widely dispersed adults,
facilitate egg dispersal, or reduce predation on adults or eggs.
Movement
``Spawning runs,'' or movements of adult Nassau grouper from coral
reefs to spawning aggregation sites, were first
[[Page 62935]]
described in Cuba in 1884 by Vilaro Diaz, and later by Guitart-Manday
and Juarez-Fernandez (1966). Nassau grouper migrate to aggregation
sites in groups numbering between 25 and 500, moving parallel to the
coast or along shelf edges or even inshore reefs (Colin, 1992; Carter
et al., 1994; Aguilar-Perera and Aguilar-Davila, 1996; Nemeth et al.,
2009). Distance traveled by Nassau grouper to aggregation sites is
highly variable; some fish move only a few kilometers, while others
move up to several hundred kilometers (Colin, 1992; Carter et al.,
1994; Bolden, 2000). Observations suggest that individuals may return
to their original home reef following spawning.
Larger fish are more likely to return to aggregation sites and
spawn in successive months than smaller fish (Semmens et al., 2007).
Nassau grouper have been shown to have high site fidelity to an
aggregation site with 80 percent of tagged Nassau grouper returning to
the same aggregation site, Bajo de Sico, each year over the 2014-2016
tracking period in Puerto Rico (Tuohy et al., 2016). The area occupied
during spawning by Nassau grouper is smaller at Bajo de Sico compared
to Grammanik Bank off St. Thomas. Acoustic detections of tagged Nassau
grouper revealed a southwesterly movement from the Puerto Rican shelf
to the Bajo de Sico in a narrow corridor (Tuohy et al., 2017).
Activity and Behavior
Spawning occurs for up to 1.5 hours around sunset for several days
(Whaylen et al., 2007). At spawning aggregation sites, Nassau grouper
tend to mill around for a day or two in a ``staging area'' adjacent to
the core area where spawning activity later occurs (Colin, 1992;
Kadison et al., 2010; Nemeth, 2012). Courtship is indicated by two
behaviors that occur late in the afternoon: ``following'' and
``circling'' (Colin, 1992). The aggregation then moves into deeper
water shortly before spawning (Colin, 1992; Tucker et al., 1993; Carter
et al., 1994). Progression from courtship to spawning may depend on
aggregation size, but generally fish move up in the water column, with
an increasing number exhibiting the bicolor phase (i.e., when spawning
animals change to solid dark and white colors, temporarily losing their
characteristic stripes) (Colin, 1992; Carter et al., 1994). Following
the release of sperm and eggs, there is a rapid return of the
fragmented sub-group to the bottom. All spawning events have been
recorded within 20 minutes of sunset, with most within 10 minutes of
sunset (Colin, 1992).
Repeated spawning occurs at the same site for up to three
consecutive months generally around the full moon or between the full
and new moons (Smith, 1971; Colin, 1992; Tucker et al., 1993; Aguilar-
Perera, 1994; Carter et al., 1994; Tucker and Woodward, 1994).
Examination of female reproductive tissue suggests multiple spawning
events across several days at a single aggregation (Smith, 1972). A
video recording shows a single female in repeated spawning rushes
during a single night, repeatedly releasing eggs (Colin, 1992).
Spawning Aggregations in U.S. Waters
The best available information suggests that spawning in U.S.
waters occurs at two sites that may be reconstituted or novel spawning
sites in both Puerto Rico and the USVI (Hill and Sadovy de Mitcheson,
2013): Bajo de Sico in Puerto Rico (Scharer et al., 2012) and Grammanik
Bank in the USVI (Nemeth et al., 2006). A spawning aggregation site
historically existed on the eastern tip of Lang Bank, USVI that was
extirpated in the early 1980s; however, we have insufficient
information regarding its current value to Nassau grouper spawning and
are seeking additional information through this proposed rule.
Bajo de Sico, Puerto Rico
Bajo de Sico, Puerto Rico is a submerged offshore seamount located
in the Mona Passage off the insular platform of western Puerto Rico
approximately 29 km west of Mayaguez (Scharer-Umpierre et al., 2014).
Reef bathymetry is characterized by a ridge of highly rugose rock
promontories ranging in depths from 25 to 45 m, which rises from a
mostly flat, gradually sloping shelf that extends to 100 m. Below this
depth, the shelf ends in a vertical wall that reaches depths of 200-300
m to the southeast and over 1,000 m to the north (Tuohy et al., 2015).
Most of the shallow (<180 m depth) areas of this 11 km\2\ seamount are
located in the U.S. exclusive economic zone (EEZ). Bajo de Sico is
considered mesophotic coral ecosystems due to the range of depths and
coral/algae development. The area less than 50 m depth includes a reef
top, vertical reef wall and rock promontories, colonized hardbottom
with sand channels, uncolonized gravel, and substantial areas of
rhodolith reef habitat (Garcia-Sais et al., 2007).
In 1996, NMFS approved a 3-month seasonal fishing closure (December
1 through February 28) in Federal waters at Bajo de Sico to protect
spawning aggregations of red hind (61 FR 64485, December 5, 1996),
although the closure also protects Nassau grouper spawning aggregations
(Scharer et al., 2012). During the closure period, all fishing was
prohibited (61 FR 64485). A later rule prohibited the use of bottom-
tending gear, including traps, pots, gillnets, trammel nets, and bottom
longlines, in Bajo de Sico year-round (70 FR 62073, October 28, 2005).
In 2010, NMFS approved a modification to the Bajo de Sico seasonal
closure, extending the closure period to 6-months (October 1 through
March 31), altering the restriction to prohibit fishing for and
possessing Caribbean reef fish in or from Federal waters at Bajo de
Sico during the closure period, and prohibiting anchoring by fishing
vessels year-round in the area (75 FR 67247, November 2, 2010). The
2010 rule is still in place.
In February 2012, a Nassau grouper spawning aggregation was
identified at Bajo de Sico when at least 60 individuals were observed
via video and audio recordings exhibiting reproductive behaviors
(Scharer et al., 2012). While actual spawning was not observed on the
2012 video recordings, all four Nassau grouper spawning coloration
patterns and phases (Smith, 1972; Colin, 1992; Archer et al., 2012)
were observed, including the bi-color phase associated with peak
spawning times (Scharer et al., 2012). Subsequent diver surveys
conducted between January 25 to April 5, 2016, indicated between 5-107
individuals at the site, with the greatest number occurring in February
(Scharer et al., 2017). The highest detection rate from tags (n = 29)
inserted into Nassau grouper occurred in February and March, with other
detections in January and April, all peaking following the full moon
(Scharer et al., 2017). The depth range (40 to 155 m) being used by
Nassau grouper at the Bajo de Sico exceeds other locations (Scharer et
al., 2017).
Grammanik Bank, USVI
Grammanik Bank, USVI is located approximately 4 km east of the Hind
Bank Marine Conservation District (MCD), on the southern edge of the
Puerto Rican Shelf. Grammanik Bank is a narrow deep coral reef bank
(35-40 m) about 1.69 km long and 100 m wide at the widest point located
on the shelf edge about 14 miles south of St. Thomas. It is bordered to
the north by extensive mesophotic reef and to the south by a steep
drop-off and a deep Agaricea reef at 200-220 ft (60-70 m) (Nemeth et
al., 2006; Scharer et al., 2012). The benthic habitat is primarily
composed of a mesophotic reef at depths between 30-60 m, which includes
a combination of Montastrea
[[Page 62936]]
and Orbicella coral and hardbottom interspersed with gorgonians and
sponges (Smith et al., 2008). Corals are present on Grammanik Bank at
depths between 35 and 40 m and the coral bank is bordered to the east
and west by shallower (25 to 30 m) hardbottom ridges along the shelf
edge sparsely colonized by corals, gorgonians and sponges (Nemeth et
al., 2006). When Hind Bank MCD was established in 1999 as the first no-
take fishery reserve in the USVI to protect coral reef resources, reef
fish stocks, including red hind (E. guttatus), and their habitats (64
FR 60132, November 4, 1999), fishing pressure is thought to have moved
to the adjacent Grammanik Bank (Nemeth et al., 2006). Fishing is
prohibited for all species at Hind Bank MCD year-round. At Grammanik
Bank, fishing is prohibited for all species, with an exception for
highly migratory species, from February 1 to April 30 of each year to
protect yellowfin grouper (Mycteroperca venenosa) when they aggregate
to spawn (70 FR 62073, October 28, 2005; Scharer et al., 2012).
Approximately 100 Nassau grouper were observed aggregating at the
Grammanik Bank in 2004 between January and March (Nemeth et al., 2006).
This discovery marked the first documented appearance of a Nassau
grouper spawning aggregation site within U.S. waters since the mid-
1970s (Kadison et al., 2009); however, commercial fishers were quick to
target this new aggregation site and began to harvest both yellowfin
and Nassau groupers (Nemeth et al., 2006). In 2005, NMFS approved a
measure developed by the Caribbean Fisheries Management Council (70 FR
62073, October 10, 2005) that closes the Grammanik Bank to fishing for
all species, with an exception for highly migratory species, from
February 1 through April 30 each year. Diver surveys and collection of
fish in traps recorded 668 Nassau grouper at Grammanik Bank between
2004 and 2009 (Kadison et al., 2010). The fish were of reproductive
size and condition and arrived on and around the full moon in February,
March, and April and then departed 10 to 12 days after the full moon.
The number of Nassau grouper observed in diver visual surveys suggest
that Nassau grouper spawning biomass has increased at the aggregation
site from a maximum abundance of 30 individuals sighted per day in
2005, to 100 per day in 2009 (Kadison et al., 2009). By 2013, a maximum
abundance of 214 individuals was recorded per day (Scharer-Umpierre et
al., 2014). Since then the maximum number of Nassau grouper counted per
day during spawning periods has continued to increase, reaching over
500 in 2020, 750 in February 2021, and at least 800 in January 2022 (R.
S. Nemeth, unpublished data). The behavior of Nassau grouper in the
aggregation has also changed dramatically in the past few years. From
2004 to 2019, Nassau grouper were found aggregating in small groups of
10, 20, or maybe as high as 40 individuals, resting close to the bottom
among the coral heads. Nassau grouper were also observed to swim down
the slope to 60 to 80 m, presumably to spawn, to an extensive Agaricia
larmarki reef that Nassau grouper also use for shelter (R.S. Nemeth,
unpublished data). These deep movements were later verified with
acoustic telemetry data, and Nassau grouper were suspected of spawning
near this deep reef area. Since 2020, however, the Nassau grouper are
now observed in groups of 100 to 300 fish aggregated 5 to 10 m above
the bottom. On January 24, 2022 (7 days after full moon), researchers
captured the first ever observation of Nassau grouper spawning at the
Grammanik Bank at 17:40 and a second spawning rush at 18:10 (Nemeth
Pers. Comm., February 13, 2022). Spawning occurred well above the
bottom in 30 to 40 m depth. Vocalization by Nassau grouper has
indicated that abundance and possibly inferred spawning of Nassau
grouper peaked at Grammanik Bank after the full moons in January
through May (Rowell et al., 2013).
Nemeth et al. (2009) first reported synchronous movement of Nassau
grouper during the spawning period between Hind Bank MCD and Grammanik
Bank using acoustic telemetry. Both Nassau and yellowfin groupers
primarily used two of three deep (50 m) parallel linear reefs that link
Grammanik Bank with the Hind Bank MCD that lie in an east-west in
orientation parallel to the shelf edge; the linear reef about 300 to
500 m north of the shelf edge was used mostly by Nassau grouper.
Acoustic telemetry and bioacoustic recordings were later integrated by
Rowell et al. (2015) to identify a synchronized pathway taken by pre-
and post -spawning Nassau grouper to the Grammanik Bank spawning site
from the nearby Hind Bank MCD. While not every Nassau grouper was found
to use this spawning route, the majority (64 percent) of the tagged
fish followed this specific route on a regular or often daily basis
during the week when spawning was occurring at Grammanik Bank. Because
56 percent of the tagged Nassau grouper (n = 10) traversed between Hind
Bank MCD and Grammanik Bank during spawning, it was suggested by Nemeth
et al. (2009) the boundary of the Grammanik Bank fishing closure area
be expanded to the south, north and west to protect the moving fish.
It remains unknown whether the recovery of the Nassau grouper
aggregation at Grammanik Bank is a result of: (1) Remnant adults from
the nearby overfished aggregation site (the historical Grouper Bank,
now located within the Red Hind Bank Marine Conservation District),
shifting spawning locations to the Grammanik Bank, a distance of about
5 km (this scenario is supported by Heppel et al. (2013) who found that
Nassau grouper visit multiple aggregation sites during the spawning
season, yet all fish aggregate and spawn at a single location); (2)
larvae dispersed from distant spawning aggregations elsewhere in the
Eastern Caribbean that have settled on the St. Thomas/St. John shelf,
matured, and migrated to Grammanik Bank spawning site (this is
supported by Jackson et al. (2014) who found strong genetic mixing of
Nassau grouper populations among Lesser and Greater Antilles, including
Turks and Caicos; Bernard et al. (2015) also found that external
recruitment is an important driver of the Grammanik Bank spawning
aggregation recovery); and/or (3) self-recruitment by local
reproduction from the remnant population.
Critical Habitat Identification
In the following sections, we describe the relevant definitions and
requirements in the ESA and implementing regulations at 50 CFR part 424
and the key information and criteria used to prepare this proposed
critical habitat designation. In accordance with section 4(b)(2) of the
ESA, this proposed critical habitat designation is based on the best
scientific data available and takes into consideration the economic
impact, the impact on national security, and any other relevant impact
of specifying any particular area as critical habitat. Scientific data
used to identify potential critical habitat includes the information
contained in the biological report for the Nassau grouper (Hill and
Sadovy de Mitcheson, 2013), the proposed and final rules to list the
Nassau grouper under the ESA (79 FR 51929, September 2, 2014; 81 FR
42268, June 29, 2016), articles in peer-reviewed journals, other
scientific reports and fishery management plans, and relevant
Geographic Information System (GIS) data (e.g., shoreline data, U.S.
maritime limits and boundaries data) for geographic area calculations
and
[[Page 62937]]
mapping. To identify specific areas that may qualify as critical
habitat for Nassau grouper, in accordance with 50 CFR 424.12(b), we
included the following considerations in the process: Identifying the
geographical area occupied by the species at the time of listing;
identifying physical or biological habitat features essential to the
conservation of the species; identifying the specific areas within the
geographical area occupied by the species that contain one or more of
the physical or biological features essential to the conservation of
the species; determining which of these essential features may require
special management considerations or protection; and identifying
specific areas outside the geographical area occupied by the species
that are essential for the species' conservation. Our evaluation and
conclusions are described in detail in the following sections.
Geographical Area Occupied
The phrase ``geographical areas occupied by the species,'' which
appears in the statutory definition of critical habitat (16 U.S.C.
1532(5)(A)(i)), is defined by regulation as ``an area that may
generally be delineated around species' occurrences, as determined by
the Secretary (i.e., range). Such areas may include those areas used
throughout all or part of the species' life cycle, even if not used on
a regular basis (e.g., migratory corridors, seasonal habitats, and
habitats used periodically, but not solely by vagrant individuals) (50
CFR 424.02).
Nassau grouper are found in tropical and subtropical waters of the
western North Atlantic. The 2016 listing rule identified the
distribution or range of the Nassau grouper as ``Bermuda and Florida
(USA), throughout the Bahamas and Caribbean Sea'' (81 FR 42268, 42271;
June 29, 2016) based on existing literature (e.g., Heemstra and
Randall, 1993). They generally live among shallow reefs, but can be
found in depths to 426 feet (130 m). Many earlier reports of Nassau
grouper up the Atlantic coast of Florida to North Carolina have not
been confirmed (Hill and Sadovy de Mitcheson, 2013).
We investigated the distribution of Nassau grouper in the Gulf of
Mexico. As summarized in the 2016 listing rule, Nassau grouper is
generally replaced ecologically in the eastern Gulf of Mexico by red
grouper (E. morio) in areas north of Key West or the Tortugas (Smith,
1971). Nassau grouper are considered a rare or transient species off
Texas in the northwestern Gulf of Mexico (Gunter and Knapp, 1951 in
Hoese and Moore, 1998). The first confirmed sighting of Nassau grouper
in the Flower Garden Banks National Marine Sanctuary (FGBNMS), which is
located in the northwest Gulf of Mexico approximately 180 km southeast
of Galveston, Texas, was reported by Foley et al. (2007). Since then,
no additional Nassau grouper have been reported in the FGBNMS despite
an extensive survey by remote operated vehicles (E. Hickerson, FGBNMS,
personal communication, 2021). There are two records (1996 and 2006) of
Nassau grouper in the Gulf of Mexico from the NMFS Southeast Area
Monitoring and Assessment Program (SEAMAP) reef fish video (RFV)
survey. This RFV survey of hardbottom habitats in the Gulf of Mexico
has been conducted annually since 1992 (with the exception of 1998-2000
and 2020) at approximately 300 sites targeting snappers and groupers at
mesophotic reefs out to the 200 m depth contour between the Florida
Keys and Texas. Both sightings were presumed adult Nassau grouper and
both occurred off the Florida west coast: one off the panhandle and one
west of the Dry Tortugas (K. Rademacher, NMFS, personal communication
2021). We conclude from the paucity of these reports that the Nassau
grouper does not regularly occur in the Gulf of Mexico.
Because we cannot designate critical habitat areas outside of U.S.
jurisdiction (50 CFR 424.12(g)), the geographical area under
consideration for this designation is limited to areas under the
jurisdiction of the United States that Nassau grouper occupied at the
time of listing. At the time of listing, the range of the Nassau
grouper spanned the wider Caribbean, and specifically the east coast of
Florida including the Florida Keys, Puerto Rico, and USVI in the United
States.
Physical and Biological Features
The statutory definition of critical habitat refers to ``physical
or biological features essential to the conservation of the species,''
(16 U.S.C. 1532(3)), but the ESA does not specifically define or
further describe these features. ESA implementing regulations at 50 CFR
424.02, however, define such features as follows:
The features that occur in specific areas and that are essential
to support the life-history needs of the species, including but not
limited to, water characteristics, soil type, geological features,
sites, prey, vegetation, symbiotic species, or other features. A
feature may be a single habitat characteristic, or a more complex
combination of habitat characteristics. Features may include habitat
characteristics that support ephemeral or dynamic habitat
conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
To assess habitat features that may qualify as ``essential to the
conservation'' of Nassau grouper, we considered the physical and
biological features that are essential to support the life history
needs and are essential to the conservation of Nassau grouper within
the areas they occupy within U.S. waters. Section 3 of the ESA 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 Act are no longer
necessary.'' 16 U.S.C. 1532(3).
Because the reduction in the number of Nassau grouper through
historical harvest and fishing at spawning aggregations was a major
factor in the listing determination (81 FR 42286, June 26, 2016),
Nassau grouper conservation clearly necessitates increasing the number
of individuals, particularly the spawning population. Therefore, we
have identified physical and biological features that support
reproduction, recruitment, and growth as essential to conservation. For
the Nassau grouper, critical habitat includes physical and biological
features to support adult reproduction at the spawning aggregations,
and settlement of larvae, and subsequent growth to maturity. These
features are essential to the conservation of the species because long-
term population recovery relies on successful recruitment and the
existence of individuals across a broad size range. Nassau grouper
populations are dependent on settlement of pelagic larvae to coastal
locations and rely on a contiguous reef system to accommodate
ontogenetic habitat shifts from inshore locations to nearshore patch
reefs and hardbottom areas and subsequent movement into offshore reef
habitats as the individuals mature. Both natural and artificial reefs
are used. While in nursery habitats, juvenile grouper associate with a
variety of microhabitats, including macroalgae, seagrass, empty conch
shells, coral patches, sponges, rubble mounds produced by sand
tilefish, Malcanthus plumieri, (Bloch 1786), artificial structures, and
debris (Eggleston 1995; Colin et al. 1997; Eggleston et al. 1998;
Aguilar-Perera et al. 2006; Claydon and Kroetz 2008; Claydon et al.
2009, 2011). Nassau grouper conservation requires habitat to support
ontogenetic growth
[[Page 62938]]
from larval settlement in the nearshore to maturity, with appropriate
inter-habitat connectivity to support ontogenetic movement from
nearshore habitat used for larval settlement, to intermediate areas
used by juveniles, and finally to offshore areas used by adults.
The following essential features have been identified:
1. Recruitment and developmental habitat. Areas from nearshore to
offshore necessary for recruitment, development, and growth of Nassau
grouper containing a variety of benthic types that provide cover from
predators and habitat for prey, consisting of the following:
a. Nearshore shallow subtidal marine nursery areas with substrate
that consists of unconsolidated calcareous medium to very coarse
sediments (not fine sand) and shell and coral fragments and may also
include cobble, boulders, whole corals and shells, or rubble mounds, to
support larval settlement and provide shelter from predators during
growth and habitat for prey.
b. Intermediate hardbottom and seagrass areas in close proximity to
the nearshore shallow subtidal marine nursery areas that provide refuge
and prey resources for juvenile fish. The areas include seagrass
interspersed with areas of rubble, boulders, shell fragments, or other
forms of cover; inshore patch and fore reefs that provide crevices and
holes; or substrates interspersed with scattered sponges, octocorals,
rock and macroalgal patches, or stony corals.
c. Offshore Linear and Patch Reefs in close proximity to
intermediate hardbottom and seagrass areas that contain multiple
benthic types, for example, coral reef, colonized hardbottom, sponge
habitat, coral rubble, rocky outcrops, or ledges, to provide shelter
from predation during maturation and habitat for prey.
d. Structures between the subtidal nearshore area and the
intermediate hardbottom and seagrass area and the offshore reef area
including overhangs, crevices, depressions, blowout ledges, holes, and
other types of formations of varying sizes and complexity to support
juveniles and adults as movement corridors that include temporary
refuge that reduces predation risk as Nassau grouper move from
nearshore to offshore habitats.
2. Spawning Habitat. Marine sites used for spawning and adjacent
waters that support movement and staging associated with spawning.
Need for Special Management Considerations or Protection
Specific areas within the geographical area occupied by a species
may be designated as critical habitat only if they contain essential
features that ``may require special management considerations or
protection'' (16 U.S.C. 1532(5)(A)(i)(II)). Special management
considerations or protection are any ``methods or procedures useful in
protecting the physical or biological features essential to the
conservation of listed species'' (50 CFR 424.02). Only those essential
features that may need special management considerations or protection
are considered further.
The essential feature components that support settlement,
development, refuge, and foraging (essential feature 1, components a
through d) are particularly susceptible to impacts from human activity
because of the relatively shallow water depth range where these
features occur as well as their proximity to the coast. As a result,
these features may be impacted by activities such as coastal and in-
water construction, dredging and disposal activities, beach
nourishment, stormwater run-off, wastewater and sewage outflow
discharges, point and non-point source pollutant discharges, and
fishing activities. Coastal and in-water construction, dredging and
disposal, and beach nourishment activities can directly remove the
essential feature that supports settlement, development, refuge, and
foraging by dredging or by depositing sediments, making habitat
unavailable. These same activities can impact the essential feature by
creating turbidity during operations. Stormwater run-off, wastewater
and sewage outflow discharges, and point and non-point source pollutant
discharges can adversely impact the essential feature by allowing
nutrients and sediments from point and non-point sources, including
sewage, stormwater and agricultural runoff, river discharge, and
groundwater, to alter the natural levels of nutrients or sediments in
the water column, which could negatively impact the substrate
characteristics or health (e.g., seagrass and corals). Further, the
global oceans are being impacted by climate change from greenhouse gas
emissions. The impacts from all these activities, combined with those
from natural factors (e.g., major storm events) affect the habitat,
including the components described for this essential feature. We
conclude that this essential feature is currently and will likely
continue to be negatively impacted by some or all of these factors.
The spawning aggregation sites essential feature (essential feature
2) is affected by activities that may make the sites unsuitable for
reproductive activity, such as activities that inhibit fish movement to
and from the sites or within the sites during the period the fish are
expected to spawn, or create conditions that deter the fish from
selecting the site for reproduction. Further, because the spawning
aggregation sites are so discrete and rare and the species'
reproduction depends on their use of aggregation sites, the species is
highly vulnerable at these locations and loss of an aggregation site
could lead to significant population impacts. impacts.
Based on the above, we determined that the essential features may
require special management considerations or protection.
Specific Areas Within the Geographic Area Occupied by the Species
Containing the Essential Features
To determine what areas qualify as critical habitat within the
geographical area occupied by the species, we are required to identify
``specific areas'' within the geographical area occupied by the species
that contain the physical or biological features essential to the
conservation of the species (50 CFR 424.12(b)(1)(iii)). Delineation of
the specific areas is done ``at a scale determined by the Secretary [of
Commerce] to be appropriate'' (50 CFR 424.12(b)(1)). Regulations at 50
CFR 424.12(c) also require that each critical habitat area be shown on
a map. Because the ESA implementing regulations allow for discretion in
determining the appropriate scale at which specific areas are drawn (50
CFR 424.12(b)(1)), we are not required to, nor was it possible to,
determine that each square inch, acre, or even square mile
independently meets the definition of ``critical habitat.'' A main goal
in determining and mapping the boundaries of the specific areas is to
provide a clear description and documentation of the areas containing
the identified essential feature. This is ultimately crucial to
ensuring that Federal action agencies are able to determine whether
their particular actions may affect the critical habitat.
Available habitat and bathymetric data layers were examined with
the help of databases from Florida Fish and Wildlife Conservation
Commission Unified Florida Reef Tract, the Nature Conservancy, and NOAA
to determine the contiguous areas of appropriate habitat complexity
that contained a combination of habitat characteristics relevant to the
Nassau grouper essential
[[Page 62939]]
feature related to habitat providing for development, refuge, and
foraging. For example, we used information from the National Centers
for Coastal Ocean Science Benthic Habitat Mapping program that provides
data and maps at <a href="http://products.coastalscience.noaa.gov/collections/benthic/default.aspx">http://products.coastalscience.noaa.gov/collections/benthic/default.aspx</a> and the Unified Florida Reef Tract Map found at
<a href="https://myfwc.com/research/gis/regional-projects/unified-reef-map/">https://myfwc.com/research/gis/regional-projects/unified-reef-map/</a>.
projects/unified-reef-map/. projects/unified-reef-map/.
These resources provide maps and information on the location of
seagrass; unconsolidated calcareous sediment of medium to very coarse
sediments (not fine sand) including shell and coral fragments
interspersed with cobble, boulders, corals, and rubble mounds;
continuous and discontinuous areas of seagrass and inshore patch and
fore reefs; coral reef; and, colonized hardbottom. Areas of these
habitat types that were not sufficiently close to satisfy the need for
contiguous habitat that could support nearshore to offshore movement of
the species from larva to adult were excluded. Species presence or
absence was also used to inform the decision making. Expert opinion was
important to identifying areas that contain the feature. These experts
included a NMFS regional GIS lead, a NMFS Nassau Grouper Recovery
Coordinator with 30 years of protected species experience and who did
research on Nassau grouper, and other Nassau grouper researchers. NMFS
staff jointly reviewed all data prior to delineating proposed units,
consulting with these experts.
To map these specific areas we reviewed available species
occurrence, bathymetric, substrate, and water quality data. The highest
resolution bathymetric data available from multiple sources were used
depending on the geographic location. In Florida and the FGBNMS,
contours created from National Ocean Service Hydrographic Survey Data
and NOAA ENCDirect bathymetric point data National Park Service (NPS)
and contours created from NOAA's Coastal Relief Model were used. In
Puerto Rico, contours were derived from the National Geophysical Data
Center's (NGDC) 2005 U.S. Coastal Relief Model. In USVI, contours
derived from NOAA's 2004-2015 Bathymetric Compilation were used. In
Navassa, contours were derived from NOAA's NGDC 2006 bathymetric data.
These bathymetric data were used with other geographic or management
boundaries to draw the boundaries of each specific area on the maps in
the proposed critical habitat designation.
Within the geographical and depth ranges of the species, certain
areas contain the appropriate substrates, however, due to their
consistently disturbed nature, these areas do not provide the quality
of substrate essential for the conservation of the threatened Nassau
grouper. These disturbances are caused by human activities. While these
areas may provide substrate for recruitment and growth, the periodic
nature of direct human disturbance renders them poor habitat. In some
of these areas, the substrate has been persistently disturbed by
planned management activities authorized by local, state, or Federal
governmental entities at the time of critical habitat designation. For
the purpose of this proposed rule, we refer to the areas disturbed by
planned management activities as ``managed areas.'' We expect that
these areas will continue to be periodically disturbed by such planned
management activities. Examples include dredged navigation channels,
vessel berths, and active anchorages. These managed areas are not under
consideration for critical habitat designation.
NMFS is aware that dredging may result in sedimentation impacts
beyond the actual dredge channel. To the extent that these impacts are
persistent, are expected to recur whenever the channel is dredged, and
are of such a level that the areas in question have already been made
unsuitable, we consider them to be included as part of the managed area
and therefore are not proposing to designate them as critical habitat.
GIS data of the locations of some managed areas were available and
extracted from the maps of the specific areas being considered for
critical habitat designation. These data were not available for every
managed area. Regardless of whether the managed area is extracted from
the maps depicting the specific areas being proposed as critical
habitat, no managed areas are part of the specific areas within the
geographical area occupied by the species that contain the essential
feature 1.
Spawning site locations were identified and mapped based on review
of literature, including existing maps used in Caribbean Fishery
Management Council management measures, codified in the Code of Federal
Regulations (CFR), and confirmation with species experts. The
identified marine sites used for spawning and adjacent waters that
support movement and staging associated with spawning are: Bajo de Sico
(waters encompassed by 100 m isobath bounded in the Bajo de Sico
spawning area off the west coast of Puerto Rico) and Grammanik Bank and
Hind Bank (waters which make up the Grammanik Bank and the Hind Bank,
interconnecting waters between these banks, and waters extending out to
366 m directly south from Grammanik Bank, located south of St. Croix).
The species has been known to spawn in the waters of the Grammanik Bank
and to use the nearby Hind Bank for staging and movement to and from
the spawning area.
Areas Outside of the Geographical Areas Occupied by the Species at the
Time of Listing That Are Essential for Conservation
ESA section 3(5)(A)(ii) defines critical habitat to include
specific areas outside the geographical area occupied by the species at
the time of listing if the areas are determined by the Secretary to be
essential for the conservation of the species. Our regulations at 50
CFR 424.12(b)(2) further explain that the Secretary will identify, at a
scale determined by the Secretary to be appropriate, specific areas
outside the geographical area occupied by the species only upon a
determination that such areas are essential for the conservation of the
species.
While the most serious threats to Nassau grouper are historical
harvest, fishing at spawning aggregations, and inadequate law
enforcement (81 FR 42268, 42280-81, June 29, 2016), loss of the
habitats used by groupers during various life stages may influence
their distribution, abundance, and survival. For example, alterations
or destruction of nearshore nursery areas and degradation of hardbottom
habitat can affect Nassau grouper's ability to grow and survive. The
proposed critical habitat will help conservation of spawning areas
within U.S. jurisdiction (but not address fishing at the spawning
aggregations or enforcement of any spawning area protections as that
cannot be addressed by this rule). The critical habitat identified in
this proposed rule identifies key habitat necessary for promoting the
recruitment, refuge, and forage habitat necessary for the conservation
of the species. Based on our current understanding of the species'
biology and conservation needs, we have not identified specific areas
outside the geographical area occupied by the species that are
essential for its conservation. The protection of the specific areas
identified in this proposed rule from destruction and adverse
modification stemming from federal actions will help support the
species' habitat-based conservation needs.
[[Page 62940]]
Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense (DoD), or designated for its use, that are
subject to an Integrated Natural Resources Management Plan (INRMP)
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary [of Commerce] determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. Our regulations at 50 CFR 424.12(h) provide that, in
determining whether an applicable benefit is provided, we will
consider:
(1) The extent of the area and features present;
(2) The type and frequency of use of the area by the species;
(3) The relevant elements of the INRMP in terms of management
objectives, activities covered, and best management practices, and the
certainty that the relevant elements will be implemented; and
(4) The degree to which the relevant elements of the INRMP will
protect the habitat from the types of effects that would be addressed
through a destruction-or-adverse-modification analysis.
NMFS contacted the Department of Defense to determine if any areas
controlled by the DoD coincide with any of the areas under
consideration for critical habitat. Naval Air Station Key West (NASKW)
is the only installation controlled by the DoD, specifically the
Department of the Navy (Navy), that coincides with any of the areas
under consideration for critical habitat. On July 14, 2022, the Navy
requested in writing that the areas covered by the 2020 INRMP for NASKW
not be designated as critical habitat, pursuant to ESA section
4(a)(3)(B)(i).
The NASKW INRMP covers the lands and waters (generally out to 50
yards (45.7 m)) adjacent to NASKW, including several designated
restricted areas. The total area of the waters covered by the INRMP
that overlaps with areas considered for the proposed critical habitat
is approximately 800 acres (3.2 sq km). Within this area, the species
and proposed essential feature 1 are present, specifically young
juvenile fish and nearshore shallow subtidal marine nursery and
intermediate hardbottom and seagrass areas in close proximity to the
nearshore shallow subtidal marine nursery areas. As detailed in the
INRMP, the plan provides benefits to the threatened Nassau grouper and
areas included in the proposed critical habitat through the following
NASKW broad programs and activities: wetlands management; floodplains
management; soil conservation and erosion control; stormwater and water
quality control; coastal and marine management; threatened species and
natural communities management; wetlands protection and shoreline
enhancement; federally listed species assessments; community outreach
and awareness; fish and wildlife conservation signage; marine resources
surveys. These types of best management practices have been ongoing at
NASKW since 1983; thus, they are likely to continue into the future.
Further, the plan specifically provides assurances that all NASKW staff
have the authority and funding (subject to appropriations) to implement
the plan. The plan also provides assurances that the conservation
efforts will be effective through annual reviews conducted by state and
Federal natural resource agencies. These activities address some of the
particular conservation and protection needs that critical habitat
would afford. These activities are similar to those that we describe
for avoiding or reducing effects to the proposed critical habitat.
Further, the INRMP includes provisions for monitoring and evaluating
conservation effectiveness, which will ensure continued benefits to the
species. Therefore, pursuant to section 4(a)(3)(B)(i) of the ESA, we
determined that the INRMP provides a benefit to Nassau grouper, and
areas within the boundaries covered by the INRMP are ineligible for
designation as critical habitat.
Application of ESA Section 4(b)(2)
Section 4(b)(2) of the ESA requires that we consider the economic
impact, impact on national security, and any other relevant impact, of
designating any particular area as critical habitat.
Additionally, the Secretary has the discretion to exclude any area
from critical habitat if the Secretary determines the benefits of
exclusion (that is, avoiding some or all of the impacts that would
result from designation) outweigh the benefits of designation. The
Secretary may not exclude an area from designation if the Secretary
determines, based upon the best scientific and commercial data
available, exclusion will result in the extinction of the species.
Because the authority to exclude is discretionary, exclusion is not
required for any particular area.
The ESA provides the Secretary broad discretion in how to consider
impacts. (See H.R. Rep. No. 95-1625, at 17, reprinted in 1978
U.S.C.C.A.N. 9453, 9467 (1978)). Regulations at 50 CFR 424.19(b)
specify that the Secretary will consider the probable impacts of the
designation at a scale that the Secretary determines to be appropriate,
and that such impacts may be qualitatively or quantitatively described.
The Secretary is also required to compare impacts with and without the
designation (50 CFR 424.19(b)). In other words, we are required to
assess the incremental impacts attributable to the critical habitat
designation relative to a baseline that reflects existing regulatory
impacts in the absence of the critical habitat. The consideration and
weight given to any particular impact is determined by the Secretary.
Courts have noted the ESA does not contain requirements for any
particular methods or approaches. (See, e.g., Bldg. Indus. Ass'n of the
Bay Area et al. v U.S. Dept. of Commerce et al., 792 F.3d 1027 (9th
Cir. 2015), upholding district court's ruling that the ESA does not
require the agency to follow a specific methodology when designating
critical habitat under section 4(b)(2)). NMFS and the U.S. Fish and
Wildlife Service have adopted a joint policy setting out non-binding
guidance explaining generally how we exercise our discretion under
4(b)(2). See Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (``4(b)(2) Policy,'' 81 FR 7226, February 11,
2016). For this proposed rule, we followed the same basic approach to
describing and evaluating impacts as we have for several recent
critical habitat rulemakings, as informed by our 4(b)(2) Policy.
The following discussion of impacts is summarized from our Critical
Habitat Report, which identifies the economic, national security, and
other relevant impacts that we project would result from including each
of the specific areas in the proposed critical habitat designations. We
considered these impacts when deciding whether to exercise our
discretion to propose excluding particular areas from the designations.
Both positive and negative impacts were identified and considered
(these terms are used interchangeably with benefits and costs,
respectively). Impacts were evaluated in quantitative terms where
feasible, but qualitative appraisals were used where that is more
appropriate to particular impacts. 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,
[[Page 62941]]
and that they consult with NMFS in fulfilling this requirement.
Determining these impacts is complicated by the fact that section
7(a)(2) also requires that Federal agencies ensure their actions are
not likely to jeopardize the species' continued existence. One
incremental impact of designation is the extent to which Federal
agencies modify their proposed actions to ensure they are not likely to
destroy or adversely modify the critical habitat beyond any
modifications the agencies would make because of listing and the
requirement to avoid jeopardy to the listed Nassau grouper. When the
same modification would be required due to impacts to both the species
and critical habitat, there would be no additional or incremental
impact attributable to the critical habitat designation beyond the
administrative impact associated with conducting the critical habitat
analysis.
Relevant, existing regulatory protections are referred to as the
``baseline'' for the analysis and are discussed in the Critical Habitat
Report. In this case, notable baseline protections include the ESA
listing of the species (81 FR 42268, June 29, 2016), and other species
listings and critical habitat designations (e.g., elkhorn and staghorn
coral, 73 FR 72209, November, 26, 2008).
The Critical Habitat Report describes the projected future Federal
activities that would trigger ESA section 7 consultation requirements
if they are implemented in the future because the activities may affect
the essential features. These activities and the ESA consultation
consequently may result in economic costs or negative impacts. The
report also identifies the potential national security and other
relevant impacts that may arise due to the proposed critical habitat
designation, such as positive impacts that may arise from conservation
of the species and its habitat, state and local protections that may be
triggered as a result of designation, and educating the public about
the importance of an area for species conservation.
Economic Impacts
Economic impacts of the critical habitat designations primarily
occur through implementation of section 7 of the ESA in consultations
with Federal agencies to ensure their proposed actions are not likely
to destroy or adversely modify critical habitat. The economic impacts
of consultation may include both administrative and project
modification costs; economic impacts that may be associated with the
conservation benefits resulting from designation are described later.
To identify the types and geographic distribution of activities
that may trigger section 7 consultation on Nassau grouper critical
habitat, we first reviewed the NMFS Southeast Region's section 7
consultation history from 2011 to 2021 for:
<bullet> Activities consulted on in the areas being proposed as
critical habitat for the Nassau grouper and
<bullet> Activities that take place outside of the proposed
critical habitat but whose effects extend into the critical habitat and
are therefore subject to consultation.
In addition, we conducted stakeholder outreach to identify future
activities that may affect Nassau grouper critical habitat that may not
have been captured by relying on the section 7 consultation history.
Through this outreach, we did not identify any additional activities
that may affect Nassau grouper critical habitat. Stakeholders included
the U.S. Army Corps of Engineers (USACE), the U.S. Air Force, the
Department of the Navy, and the U.S. Coast Guard (USCG). We reviewed
the USACE's Jacksonville District permit application database to
identify all permit applications for projects located within the
proposed critical habitat area. We also will review more recent
consultation information provided by these or other agencies prior to
the publication of any final rule. We determined all categories of the
activities identified have potential routes of effects to both the
threatened Nassau grouper and the proposed Nassau grouper critical
habitat, or to other species or designated critical habitat and the
proposed Nassau grouper critical habitat. We did not identify and we do
not anticipate Federal actions that have the potential to affect only
the Nassau grouper critical habitat.
We identified the following eight categories of activities
implemented by seven different Federal entities as having the potential
to affect the essential features of the Nassau grouper critical
habitat: habitat:
<bullet> Coastal and in-water construction (e.g., docks, seawalls,
piers, marinas, port expansions, anchorages, pipelines/cables, bridge
repairs, aids to navigation, etc.) conducted or authorized by USACE or
USCG;
<bullet> Shipwreck and Marine Debris Removal (USCG, NOAA);
<bullet> Scientific Research and Monitoring (NOAA);
<bullet> Water quality management (revision of state water quality
standards, issuance of National Pollutant Discharge Elimination System
(NPDES) permits and Total Maximum daily load (TMDL) standards under the
Clean Water Act and ecological risk assessments associated with
pesticide registrations under the Federal Insecticide, Fungicide and
Rodenticide Act) authorized by the Environmental Protection Agency
(EPA);
<bullet> Protected area management (development of management plans
for national parks, marine sanctuaries, wildlife refuges, etc.)
conducted by the National Park Service (NPS) and NOAA National Ocean
Service (NOS);
<bullet> Fishery management (development of fishery management
plans under the Magnuson-Stevens Fishery Conservation and Management
Act) conducted or approved by NMFS;
<bullet> Aquaculture (development of aquaculture facilities)
authorized by EPA and USACE, and funded by NMFS; and
<bullet> Military activities (e.g., training exercises) conducted
by DoD.
Future consultations were projected based on the frequency and
distribution of section 7 consultations conducted from 2011 to 2021,
review of USACE permit applications over the same time frame, and
outreach to Federal stakeholders. We consider it a reasonable
assumption that the breakdown of past consultations by type (into
informal, formal, and programmatic consultations) and activity category
(e.g., in-water and coastal construction, water quality management)
from the previous 10 years coupled with information provided by federal
stakeholders likely reflects the breakdown of future consultations. We
accordingly assume that the number and type of activities occurring
within or affecting Nassau grouper critical habitat will not change in
the future.
As discussed in more detail in our Critical Habitat Report, all
categories of activities identified as having the potential to affect
the proposed essential features also have the potential to affect
Nassau grouper, which is listed as a threatened species, or other
listed species or critical habitat. To estimate the economic impacts of
critical habitat designation, our analysis compares the state of the
world with and without the designation of critical habitat. The
``without critical habitat'' scenario represents the baseline for the
analysis, considering protections already afforded the proposed
critical habitat as a result of the listing of Nassau grouper as
threatened and as a result of other Federal, state, and local
regulations or protections, including other species listings and
critical habitat determinations. The ``with critical habitat'' scenario
describes the state of the world with the critical habitat
[[Page 62942]]
designation. The incremental impacts that will be associated
specifically with the critical habitat designation if finalized as
proposed are the difference between the two scenarios. Baseline
protections exist in large areas proposed for designation. In
particular, areas proposed for Nassau grouper critical habitat
designation overlap to varying degrees with the presence of the
threatened or endangered Nassau grouper, green sea turtle, loggerhead
sea turtle, hawksbill sea turtle, corals, and smalltooth sawfish; and
critical habitat designated for green, loggerhead, and hawksbill sea
turtles and Acropora coral species. These areas already receive
significant protections related to these listings and designations, and
these protections may also protect the essential features of the
proposed Nassau grouper critical habitat (please refer to Critical
Habitat Report). Importantly, we do not expect designation of critical
habitat for the Nassau grouper to result in project modifications for
any of the activities that may affect the critical habitat.
Administrative Section 7 Costs
The effort required to address adverse effects to the proposed
critical habitat is assumed to be the same, on average, across
categories of activities. Informal consultations are expected to
require comparatively low levels of administrative effort, while formal
and programmatic consultations are expected to require comparatively
higher levels of administrative effort. For all formal and informal
consultations, we anticipate that incremental administrative costs will
be incurred by NMFS, the consulting Federal action agencies, and,
potentially, third parties. For programmatic consultations, we
anticipate that costs will be incurred by NMFS and the consulting
Federal action agencies. Incremental administrative costs per
consultation effort are expected on average to be $10,000 for
programmatic, $5,400 for formal consultations, and $2,600 for informal
consultations (NMFS 2022).
We estimate the incremental administrative costs of section 7
consultation by applying these per consultation costs to the forecasted
number of consultations. We anticipate that there will be approximately
12 programmatic consultations, 10 formal consultations, and 117
informal consultations that will require incremental administrative
effort. Incremental costs are expected to total approximately $380,000
over the next 10 years (discounted at 7 percent), at an annualized cost
of $54,000. We conservatively assume that there will be approximately
eight re-initiations of existing consultations to address effects to
Nassau grouper critical habitat. We anticipate the re-initiations to be
on consultations related to fishery management, military, construction,
and scientific research and monitoring activities.
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In summary, significant baseline protections exist in the areas
proposed for the Nassau grouper critical habitat. The incremental
impacts for the proposed designation are projected to reflect the
incremental administrative effort required for section 7 consultations
to consider effects to the critical habitat. Taking into consideration
several assumptions and uncertainties, total projected incremental
costs are approximately $380,000 over the next ten years ($54,000
annualized), applying a discount rate of 7 percent. Notwithstanding the
uncertainty underlying the projection of incremental costs, the results
provide an indication of the potential activities that may be affected
and a reasonable projection of future costs.
National Security Impacts
Impacts to national security could occur if a designation triggers
future ESA section 7 consultations because a proposed military activity
``may affect'' the physical or biological feature(s) essential to the
listed species' conservation. Interference with mission-essential
training or testing or unit readiness could result from the additional
commitment of resources by the DoD or USCG to modify the action to
prevent adverse modification of critical habitat or implement
Reasonable and Prudent Alternatives. Whether national security impacts
result from the designation also depends on whether future
consultations and associated project modifications and/or
implementation of Reasonable and Prudent Measures and Terms and
Conditions would otherwise be required due to potential effects to
Nassau grouper or other ESA-listed species or designated critical
habitat, regardless of the Nassau grouper critical habitat designation,
and whether the Nassau grouper designation would add costs beyond those
related to the consultation on effects to Nassau grouper or other
species or critical habitat.
As described previously, we identified DoD military operations as a
category of activity that has the potential to affect the essential
features of the proposed critical habitat. However, for the actions
that may affect Nassau grouper critical habitat, designating critical
habitat for Nassau grouper would not result in incremental impacts
beyond administrative costs because the consultations would otherwise
be required to address effects to either the Nassau grouper or other
listed species or the substrate feature of designated critical habitat
for Acropora corals. In 2022, we requested descriptions and locations
of any geographical areas owned or controlled by the DoD or the USCG
that may overlap with the areas under consideration for critical
habitat that they would like considered for exclusion due to impacts to
national security. The USCG responded that maintenance and replacement
of fixed Aids to Navigation (AToNs) may affect the proposed habitat by
generating sedimentation of the seafloor surrounding piling or other
foundations. USCG further indicated that use of floating AToNs may
result in removal of the essential feature related to development,
refuge, and foraging through chain scouring and placement of the
sinker. However, USCG already implements measures to mitigate the
impacts of AToN operations to corals, hardbottom, and seagrass, per the
programmatic biological opinion on USCG's AToN program (National Marine
Fisheries Service, 2018a). While we do not anticipate that the proposed
critical habitat designation would result in incremental modifications
to USCG's AToN operations or affect national security matters, we
expect USCG would be required to re-initiate consultation on the
programmatic biological opinion to address impacts to the Nassau
grouper critical habitat. This would represent an incremental
administrative impact of the proposed rule, which is considered in the
economic analysis, but would not affect national security.
The Navy suggested that NMFS consider areas around Naval Air
Station Key West for exclusion under ESA section 4(b)(2), however, Navy
concerns have been addressed through the previously described INRMP
exclusion. No areas managed by other DoD branches were identified as
potentially of concern.
Other Relevant Impacts
We identified three broad categories of other relevant impacts of
this proposed critical habitat: Conservation benefits, both to the
species and to the ecosystem; impacts on governmental or private
entities that are implementing existing management plans that provide
benefits to the listed species; and educational and awareness benefits.
Our Impacts Analysis discusses conservation benefits of designating the
areas, and the benefits of conserving the species to society.
Conservation Benefits
The primary benefit of critical habitat designation is the
contribution to conservation and recovery. That is, in protecting the
features essential to the conservation of the species, critical habitat
directly contributes to the conservation and recovery of the species.
This analysis contemplates two broad categories of conservation
benefits of critical habitat designation:
(1) Increased probability of conservation and recovery of the
species, and
(2) Ecosystem service benefits.
The most direct benefits of the critical habitat designations stem
from the enhanced probability of conservation and recovery of the
species. From an economic perspective, the appropriate measure of the
value of this benefit is people's ``willingness-to-pay'' for the
incremental change. While the existing economics literature is
insufficient to provide a quantitative estimate of the extent to which
people value incremental changes in recovery potential, the literature
does provide evidence that people have a positive preference for listed
species conservation, even beyond any direct (e.g., recreation, such as
viewing the species while snorkeling or diving) or indirect (e.g.,
fishing that is supported by the presence of healthy ecosystems) use
for the species.
In addition, designating critical habitat can benefit the
ecosystem. Overall, coral reef and benthic ecosystems, including those
comprising Nassau grouper proposed critical habitat, provide important
ecosystem services of value to individuals, communities, and economies.
These include recreational opportunities (and associated tourism
spending in the regional economy), habitat and nursery functions for
recreationally and commercially valuable fish species, shoreline
protection in the form of wave attenuation and reduced beach erosion,
and climate stabilization via carbon sequestration. Critical habitat
most directly influences the recovery potential of the species and
protects ecosystem services through its implementation under section 7
of the ESA. Our analysis finds that the proposed rule is not
anticipated to result in incremental project modifications. However,
the protections afforded reefs and seagrasses as subcomponents of an
essential feature of proposed Nassau grouper critical habitat could
increase awareness of the importance of these habitat types, which in
turn could lead to additional conservation efforts.
In addition, critical habitat designation may generate ancillary
environmental improvements and associated ecosystem service benefits
(i.e., to commercial fishing and recreational activities).
[[Page 62945]]
While neither benefit can be directly monetized, existing
information on the value of coral reefs provides an indication of the
value placed on those ecosystems.
Impacts to Governmental and Private Entities With Existing Management
Plans Benefitting the Listed Species
Among other relevant impacts of the critical habitat designations
that we considered under section 4(b)(2) of the ESA are impacts on the
efforts of private and public entities involved in management or
conservation efforts benefiting listed species. In cases where there is
a federal nexus (e.g., a federal grant or permit), critical habitat
designation could necessitate consultation with NMFS to incrementally
address the effects of the management or conservation activities on
critical habitat. In such cases, these entities may have to allocate
resources to fulfill their section 7 consultation obligations as third
parties to the consultation--including the administrative effort of
consultation and, potentially, modification of projects or conservation
measures to avoid adverse modification to the critical habitat--that,
absent critical habitat designation, would be applied to management or
conservation efforts benefiting listed species. Thus, the potential for
reallocation of these private and public entities' resources would be
limited to the incremental administrative costs of section 7
consultations that would occur absent Nassau grouper critical habitat.
Therefore, we do not expect that designating critical habitat for the
Nassau grouper would diminish private and public entities' ability to
provide for the conservation of the Nassau grouper.
Education and Awareness Benefits
The critical habitat designation could potentially have benefits
associated with education and awareness. The potential for such
benefits stems from three sources: (1) entities that engage in section
7 consultation, including Federal action agencies and, in some cases,
third party applicants; (2) members of the general public interested in
conservation; and (3) state and local governments that take action to
complement the critical habitat designation. Certain entities, such as
applicants for particular permits, may alter their activities to
benefit the essential features of the critical habitat because they
were made aware of the critical habitat designation through the section
7 consultation process. Similarly, Federal action agencies that
undertake activities that affect the critical habitat may alter their
activities to benefit the critical habitat. Members of the public
interested in conservation also may adjust their behavior to benefit
critical habitat because they learned of the critical habitat
designation through outreach materials or the regulatory process. In
our experience, designation raises the public's awareness that there
are special considerations to be taken within the area identified as
critical habitat. Similarly, state and local governments may be
prompted to enact laws or rules to complement the critical habitat
designations and benefit the listed species. Those laws would likely
result in additional impacts of the designations.
However, it is not possible to quantify the beneficial effects of
the awareness gained through, or the impacts from state and local
regulations resulting from, the proposed critical habitat designation.
Exclusions Under Section 4(b)(2)
We are not exercising our discretion to exclude any particular
areas from designation based on economic, national security, and other
relevant impacts. In summary, there are significant baseline
protections that exist in the areas proposed for the Nassau grouper
critical habitat, and as a result, the incremental impacts of the
proposed designation are low and reflect the incremental administrative
effort required for section 7 consultations to consider the critical
habitat. Taking into consideration several assumptions and
uncertainties, the total projected incremental costs are approximately
$380,000 over the next 10 years ($54,000 annualized), applying a
discount rate of 7 percent. Further, the analysis indicates that there
is no particular area within the proposed critical habitat units where
these costs would be highly concentrated. Moreover, we anticipate that
no particular industry would be disproportionately impacted. We are not
proposing to exclude any areas on the basis of national security
impacts as no national security concerns exist related to the proposed
critical habitat designation. We are not proposing to exclude any
particular area based on other relevant impacts. Other relevant impacts
include conservation benefits of the designation, both to the species
and to the ecosystem. We expect that designation of critical habitat
will support conservation and recovery of the species. Future section 7
consultations on some of the activities that may affect Nassau grouper
will also consider effects to the critical habitat. While we do not
expect these consultations to result in additional conservation
measures, the additional consideration of effects to the critical
habitat will increase overall awareness of the importance of Nassau
grouper and its habitat. For these reasons, we are not proposing to
exclude any areas as a result of these other relevant impacts.
Proposed Critical Habitat Designation
Our critical habitat regulations state that we will show critical
habitat on a map with more detailed information discussed in the
preamble of the critical habitat rulemaking and made available from
NMFS (50 CFR 424.12(c)). When several habitats, each satisfying the
requirements for designation as critical habitat, are located in
proximity to one another, an inclusive area may be designated as
critical habitat (50 CFR 424.12(d)). The habitat containing the
essential features, and that may require special management
considerations or protection, is marine habitat of particular benthic
composition and structure in the Atlantic Ocean and Caribbean Sea. The
boundaries of each specific area were determined by the presence of the
essential features and Nassau grouper, as described earlier within this
document. Because the quality of the available GIS data varies based on
collection method, resolution, and processing, the proposed critical
habitat boundaries are defined by the maps in combination with the
textual information included in the proposed regulation. This textual
information clarifies and refines the location and boundaries of each
specific area.
Occupied Critical Habitat Unit Descriptions
Based on the available data, we identified specific areas that
contain the essential features. The specific areas or ``units'' can
generally be grouped as the: Navassa Island unit, Puerto Rico units,
USVI units, Florida units, and spawning units. The units and their
general location are listed here (refer to the maps and regulation text
for more details).
Navassa Island Unit. Waters surrounding Navassa Island. Area =
2.468 sq. km.
Puerto Rico Unit 1--Mona Island. Waters off the west and south
coast of Mona Island. Area = 18.344 sq. km.
Puerto Rico Unit 2--Desecheo Island. Waters off the southwest coast
of the island. Area = 0.468 sq. km.
Puerto Rico Unit 3--Southwest. Waters off the southwest coast of
the Puerto Rico main island. Area = 112.393 sq. km.
[[Page 62946]]
Puerto Rico Unit 4--Northeast. Waters off the northeast coast of
the Puerto Rico main island. Area = 48.754 sq. km.
Puerto Rico Unit 5--Vieques Island. Waters off the west and
northeast, east, and southeast coasts of the island. Area = 9.488 sq.
km.
Puerto Rico Unit 6--Culebra/Culebrita Islands. The Culebra area
consists of waters off the southeastern Culebra coastline. The
Culebrita area consists of waters off the western and southern coasts
of the island. Area = 4.149 sq. km.
United States Virgin Island Unit 1--St Thomas. Waters off the east
coast of St. Thomas Island and waters off the southwest, south, and
southeast coast of the Water Island. Area = 9.183 sq. km.
United States Virgin Island Unit 2--St. John. Waters off the east
coast of the island. Area = 6.552 sq. km.
United States Virgin Island Unit 3--St. Croix. Waters off the east
end of St. Croix Island and waters off the north coast of Buck Island.
Area = 50.35 sq. km.
Florida Unit 1--Biscayne Bay/Key Largo. Waters south of
Rickenbacker Causeway, including portions of waters from the coastline
into Biscayne Bay, and waters off the eastern coastline to
80[deg]29'21'' W, 25[deg]01'59'' N. Area = 1279.696.
Florida Unit 2--Marathon. Waters off the southern shoreline
approximately between Knights Key to 80[deg]55'51''W, 24[deg]46'26'' N.
Area = 172.379.
Florida Unit 3--Big Pine Key to Geiger Key. Waters off the south
side of coastline and US 1 from approximately Geiger Key to Big Pine
Key. Area = 372.369 sq. km.
Florida Unit 4--Key West. Shoal waters south of Woman Key. Area =
127.078 sq. km.
Florida Unit 5--New Ground Shoal. New Ground Shoal waters. Area =
31.042 sq. km.
Florida Unit 6--Halfmoon Shoal. Halfmoon Shoal waters. Area =
33.615 sq. km.
Florida Unit 7--Dry Tortugas. Waters encompassing Loggerhead Key
and waters surrounding Garden Key and Bush Key. Area = 4.437 sq. km.
Spawning Site Unit 1--Bajo de Sico. All waters encompassed by 100m
isobath bounded in the Bajo de Sico spawning area bound within the
following coordinates: (A) 67[deg]26'13'' W, 18[deg]15'23'' N, (B)
67[deg]23'08'' W, 18[deg]15'26'' N, (C) 67[deg]26'06'' W,
18[deg]12'55'' N, and (D) 67[deg]26'13'' W, 18[deg]12'56'' N. Area =
10.738 sq. km.
Spawning Site Unit 2--Grammanik Bank/Hind Bank. All waters which
make up the Hind Bank and the Grammanik Bank, interconnecting waters
between these banks, and waters extending out to the 200 fathom line
directly south from Grammanik Bank. Area = 58.77 sq. km.
Effects of Critical Habitat Designations
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to insure that any action authorized, funded, or carried out by
the agency is not likely to jeopardize the continued existence of any
threatened or endangered species or destroy or adversely modify
designated critical habitat. Federal agencies are also required to
confer with NMFS regarding any actions likely to jeopardize the
continued existence of any species proposed for listing under the ESA,
or likely to destroy or adversely modify proposed critical habitat,
pursuant to section 7(a)(4).
A conference involves informal discussions in which NMFS may
recommend conservation measures to minimize or avoid adverse effects
(50 CFR 402.02). The discussions and conservation recommendations are
documented in a conference report provided to the Federal agency (50
CFR 402.10(e)). If requested by the Federal agency and deemed
appropriate by NMFS, the conference may be conducted following the
procedures for formal consultation in 50 CFR 402.14, and NMFS may issue
an opinion at the conclusion of the conference. This opinion may be
adopted as the biological opinion when the species is listed or
critical habitat designated if no significant new information or
changes to the action alter the content of the opinion (50 CFR
402.10(d)).
When a species is listed or critical habitat is designated, Federal
agencies must consult with NMFS on any agency actions that may affect a
listed species or its critical habitat. During the consultation, we
evaluate the agency action to determine whether the action may
adversely affect listed species or critical habitat and issue our
findings in a letter of concurrence or in a biological opinion. If we
conclude in the biological opinion that the action would likely result
in the destruction or adverse modification of critical habitat, we
would also identify any reasonable and prudent alternatives to the
action. Reasonable and prudent alternatives are defined in 50 CFR
402.02 as alternative actions identified during formal consultation
that can be implemented in a manner consistent with the intended
purpose of the action, that can be implemented consistent with the
scope of the Federal agency's legal authority and jurisdiction, that
are economically and technologically feasible, and that we believe
would avoid the likelihood of destruction or adverse modification of
critical habitat.
Regulations at 50 CFR 402.16 require Federal agencies that have
retained discretionary involvement or control over an action, or where
such discretionary involvement or control is authorized by law, to
reinitiate consultation on previously reviewed actions in instances
where:
(1) Critical habitat is subsequently designated that may be
affected by the identified action; or
(2) New information or changes to the action may result in effects
to critical habitat in a manner or to an extent not previously
considered. Consequently, some Federal agencies may request
reinitiation of consultation or conference with NMFS on actions that
may affect designated critical habitat or adversely modify or destroy
proposed critical habitat.
Activities subject to the ESA section 7 consultation process are
those activities authorized, funded, or carried out by Federal action
agencies, whether on Federal, state, or private lands or waters. ESA
section 7 consultation would not be required for Federal actions that
do not affect listed species or critical habitat and for actions that
are not federally funded, authorized, or carried out.
Activities That May Be Affected
Section 4(b)(8) of the ESA requires that we describe briefly and
evaluate in any proposed or final regulation to designate critical
habitat those activities, whether public or private, that may adversely
modify such habitat or that may be affected by such designation. As
described in our Critical Habitat Report, a wide variety of Federal
activities may require ESA section 7 consultation because they may
affect the essential features of Nassau grouper critical habitat.
Specific future activities will need to be evaluated with respect to
their potential to destroy or adversely modify critical habitat, in
addition to their potential to affect and jeopardize the continued
existence of listed species. For example, activities may adversely
modify the substrate portion of the development essential feature by
removing or altering the substrate. These activities, whether public or
private, would require ESA section 7 consultation when they are
authorized, funded, or carried out by a Federal agency. A private
entity may also be affected by these proposed critical habitat
designations if it is a proponent of a project that requires a Federal
permit or receives Federal funding. Categories of activities that may
be
[[Page 62947]]
affected through section 7 consultation by designating Nassau grouper
critical habitat include coastal and in-water construction, protected
area management, fishery management, scientific research and
monitoring, shipwreck and marine debris removal, aquaculture, water
quality management, and military activities.
Questions regarding whether specific activities may constitute
destruction or adverse modification of critical habitat should be
directed to us (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
Identifying the extent or severity of an impact on the essential
features at which the conservation value of habitat for the listed
species may be affected is inherently complex. Consequently, the actual
responses of the critical habitat to effects to the essential features
resulting from future Federal actions will be case and site-specific,
and predicting such responses will require case and site-specific data
and analyses.
Public Comments Solicited
We request that interested persons submit comments, information,
and data concerning this proposed rule during the comment period (see
DATES). We are soliciting comments from the public, other concerned
governments and agencies, the scientific community, industry, or any
other interested party concerning the areas proposed for designation
and appropriateness and description of the essential features. We also
request comment on areas we are proposing for exclusion, including but
not limited to the types of areas that qualify as managed area. We also
solicit comments regarding specific, probable benefits and impacts
stemming from this designation. We also seek comments on the identified
geographic area occupied by the species. We seek information that would
assist in further characterizing spawning aggregation sites
(environmental parameters). We seek information about any additional
sightings in the Gulf of Mexico not addressed in this proposed rule or
supporting information, as well as information about any additional
areas that might be spawning aggregation sites, and any additional
information on larval dispersal and settlement areas. We seek any
additional information about recent observations of Nassau grouper at
the historical Nassau grouper spawning aggregation site on the eastern
tip of Lang Bank, USVI that was extirpated in the early 1980s. We seek
information regarding how the invasive seagrass, Halophila stipulacea,
may impact the value of juvenile Nassau grouper habitat.
You may submit your comments and materials concerning this proposal
by any one of several methods (see ADDRESSES). We will consider all
comments pertaining to these designations received during the comment
period in preparing the final rule. Accordingly, the final designations
may differ from this proposal.
Information Quality Act and Peer Review
The data and analyses supporting this proposed action have
undergone a pre-dissemination review and have been determined to be in
compliance with applicable information quality guidelines implementing
the Information Quality Act (Section 515 of Pub. L. 106-554). On
December 16, 2004, OMB issued its Final Information Quality Bulletin
for Peer Review (Bulletin). The Bulletin was published in the Federal
Register on January 14, 2005 (70 FR 2664), and all of the requirements
were effective by June 16, 2005. The primary purpose of the Bulletin is
to improve the quality and credibility of scientific information
disseminated by the Federal government by requiring peer review of
``influential scientific information'' and ``highly influential
scientific assessments'' prior to public dissemination. ``Influential
scientific information'' is defined as information that the agency
reasonably can determine will have or does have a clear and substantial
impact on important public policies or private sector decisions. The
Bulletin provides agencies broad discretion in determining the
appropriate process and level of peer review of influential scientific
information. Stricter standards were established for the peer review of
highly influential scientific assessments, defined as information whose
dissemination could have a potential impact of more than $500 million
in any one year on either the public or private sector or for which the
dissemination is novel, controversial, or precedent-setting, or has
significant interagency interest.
The information in the Critical Habitat Report supporting this
proposed critical habitat rule is considered influential scientific
information and subject to peer review. To satisfy our requirements
under the OMB Bulletin, we obtained independent peer review of the
information in the critical habitat report and incorporated the peer
review comments into the report prior to dissemination of this proposed
rulemaking. Comments received from peer reviewers are available on our
website at <a href="http://www.cio.noaa.gov/services">http://www.cio.noaa.gov/services</a>_programs/prplans/
ID346.html.
Classification
Takings (Executive Order 12630)
Under E.O. 12630, Federal agencies must consider the effects of
their actions on constitutionally protected private property rights and
avoid unnecessary takings of private property. A taking of property
includes actions that result in physical invasion or occupancy of
private property, and regulations imposed on private property that
substantially affect its value or use. In accordance with E.O. 12630,
this proposed rule would not have significant takings implications. A
takings implication assessment is not required. These designations
would affect only Federal agency actions (i.e., those actions
authorized, funded, or carried out by Federal agencies). Therefore, the
critical habitat designations does not affect landowner actions that do
not require Federal funding or permits.
Regulatory Planning and Review (Executive Order 12866)
This proposed rule has been determined to be not significant for
purposes of E.O. 12866 review. A report evaluating the economic impacts
of the proposed rule has been prepared and is included in the Critical
Habitat Report, incorporating the principles of E.O. 12866. Based on
the economic impacts evaluation in the Critical Habitat Report, total
incremental costs resulting from the critical habitat are approximately
$380,000 over the next 10 years ($54,000 annualized), applying a
discount rate of 7 percent.
Federalism (Executive Order 13132)
Executive Order 13132 requires agencies to ensure state and local
officials have the opportunity for meaningful and timely input when
developing regulatory policies that have federalism implications.
Policies that have federalism implications are those with substantial,
direct effect on the states, on the relationship between the Federal
government and the states, or on the distribution of power and
responsibilities among the various levels of government. If the effects
of the rule on state and local governments are sufficiently
substantial, the agency must prepare a Federal assessment. Pursuant to
the Executive Order on Federalism, E.O. 13132, we determined that this
proposed rule does not have significant federalism effects and that a
federalism assessment is not required. However, in keeping with
Department of Commerce policies and consistent with ESA regulations at
50 CFR 424.16(c)(1)(ii), we will request information for this
[[Page 62948]]
proposed rule from state and territorial resource agencies in Florida,
Puerto Rico, and USVI. The proposed designations may have some benefit
to state and local resource agencies in that the proposed rule clearly
defines the essential features and the areas in which those features
are found. Clear definitions and information about the critical habitat
may help local governments plan for activities that may require ESA
section 7 consultation.
Energy Supply, Distribution, and Use (Executive Order 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking an action expected to lead to the
promulgation of a final rule or regulation that is a significant
regulatory action under E.O. 12866 and is likely to have a significant
adverse effect on the supply, distribution, or use of energy. This
rule, if finalized, will not have a significant adverse effect on the
supply, distribution, or use of energy. Therefore, we have not prepared
a Statement of Energy Effects.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)/Initial Regulatory
Flexibility Analysis (IRFA)
We prepared an initial regulatory flexibility analysis (IRFA) in
accordance with section 603 of the Regulatory Flexibility Act (RFA) (5
U.S.C. 601, et seq.). The IRFA analyzes the impacts to small entities
that may be affected by the proposed designations and is included as
Appendix B of the Critical Habitat Report and is available upon request
(see ADDRESSES section), and is summarized below. We welcome public
comment on this IRFA, which is summarized below, as required by section
603 of the RFA.
Our IRFA uses the best available information to identify the
potential impacts of designating critical habitat on small entities.
However, a number of uncertainties complicate quantification of these
impacts. These include (1) the fact that the manner in which these
potential impacts will be allocated between large and small entities is
unknown; and (2) as discussed in the main body of the economic report,
uncertainty regarding the potential effects of critical habitat
designation, which requires some categories of potential impacts be
described qualitatively. Absent specific knowledge regarding which
small entities may be involved in consultations with NMFS over the next
10 years, this analysis relies on industry-and-location-specific
information on small businesses with North American Industry
Classification System codes that were identified as relevant to the
major activity categories considered in the economic analysis and which
operate within counties or territories that share a coastline with the
proposed critical habitat. Activities considered in the economic report
and the IRFA include in-water and coastal construction, water quality
management, protected area management, fishery management, aquaculture,
military, scientific research and monitoring, and shipwreck and marine
debris removal. Based on the relevant consultation history and forecast
of future activities that may affect the proposed critical habitat,
only in-water and coastal construction activities are anticipated to
involve third parties that qualify as small entities. Given the
uncertainty regarding the proportion of consultations on construction
activities that will involve third parties, the analysis conservatively
assumes that all future consultations on these activities will involve
third parties and that all of these third parties will be small
entities. All of the counties and territories that share a coastline
with the proposed critical habitat have populations of more than
50,000, so no impacts to small governmental jurisdictions are expected
as a result of the critical habitat designation.
The maximum total annualized impacts to small entities are
estimated to be $4,073, which represents approximately 8 percent of the
total quantified incremental impacts forecasted to result from the
proposed rule. These impacts are anticipated to be borne by the small
entities in the construction industry that obtain funds or permits from
Federal agencies that will consult with NMFS regarding Nassau grouper
critical habitat in the next 10 years. Given the uncertainty regarding
which small entities in a given industry will need to consult with
NMFS, the analysis estimates impacts to small entities under two
different scenarios. These scenarios are intended to reflect the range
of uncertainty regarding the number of small entities that may be
affected by the designation and the potential impacts of critical
habitat designation on their annual revenues. Under both scenarios, the
IRFA assumes that entities conducting in-water and coastal construction
activities in the Florida units are limited to those entities located
in Miami-Dade and Monroe Counties, entities conducting in-water and
coastal construction activities in the Puerto Rico units are limited to
those entities located in Puerto Rico, and entities conducting in-water
and coastal construction activities in the USVI units are limited to
those entities located in the USVI.
Under Scenario 1, the analysis assumes that all third parties
involved in future consultations are small and that incremental impacts
are distributed evenly across all of these entities. For the Florida
units, where we estimate hundreds of small entities participate in the
in-water and coastal construction industry, Scenario 1 accordingly
reflects a high estimate of the number of potentially affected small
entities (six) and a low estimate of the potential effect in terms of
percent of revenue. The assumption under Scenario 1 that six small
entities will be subject to consultation annually reflects the forecast
that six consultations will occur annually on in-water and coastal
construction activities involving third parties. This assumes that each
consultation within the in-water and coastal construction industry
involves a unique small entity. This scenario, therefore, may overstate
the number of small entities based in Miami-Dade and Monroe counties
that are likely to be affected by the rule and understate the revenue
effect. Scenario 1 also assumes that each consultation within the in-
water and coastal construction industry in the Puerto Rico and USVI
units involves a unique small entity. For the Puerto Rico and the USVI
units, because section 7 consultation on construction activities is
anticipated to occur at a rate of 0.9 per year, or nine consultations
over 10 years, we assume that 0.9 small entities will be impacted per
year. Therefore, Scenario 1 does not yield the same overstatement of
the number of small entities likely to be affected (unless the third
party entities involved in the consultations on the construction
activities in Puerto Rico and USVI are not small entities) or the same
understatement of the revenue effect for these jurisdictions. The
analysis anticipates that, across the three jurisdictions where there
are small entities that are assumed to conduct in-water and coastal
construction, approximately eight small entities will incur $4,073 in
annualized costs under Scenario 1, including $523 in costs to Florida-
based small entities and $513 in costs each to Puerto Rico-based small
entities and USVI-based small entities. Annualized impacts of the rule
are estimated to make up less than 1 percent of average annual revenues
of approximately $1.29 million for each affected small entity.\1\
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\1\ Average annual revenues were calculated based on company-
specific revenue data sourced from the Dun & Bradstreet Hoovers
database.
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[[Page 62949]]
Under Scenario 2, the analysis assumes that all third parties
participating in future consultations are small and that costs
associated with each consultation action are borne each year by a
single small entity within an industry. This method likely understates
the number of small entities affected and overstates the likely impacts
on an entity for the Florida units. As such, this method arrives at a
low estimate of potentially affected entities in Florida units and a
high estimate of potential effects on revenue, assuming that quantified
costs represent a complete accounting of the costs likely to be borne
by private entities. Under Scenario 2, $3,141 in annualized impacts
would be borne by a single small entity in Florida. For Puerto Rico and
USVI, we maintain the assumption in Scenario 1 that 0.9 small entities
per year bear the third party costs of consultation. This assumption
reflects our forecast of nine consultations on construction projects
over 10 years in both Puerto Rico and USVI. This scenario forecasts
that annualized impacts to single entities in both Puerto Rico and USVI
would be $513. Though this scenario almost certainly overstates the
costs borne by a single small entity in Florida, the impact is
nonetheless expected to represent less than 1 percent of the average
annual revenues for the single entity. Impacts to single small entities
in Puerto Rico and USVI are also anticipated to be less than 1 percent
of average annual revenues.
While these scenarios present a range of potentially affected
entities and the associated revenue effects in Florida, we expect the
actual number of small entities affected and revenue effects will be
somewhere in the middle. In other words, some subset of the small
entities in Florida greater than one and up to six will participate in
section 7 consultations on Nassau grouper critical habitat and bear
associated impacts annually. Regardless, our analysis demonstrates that
the greatest potential revenue effect is less than 1 percent across
scenarios and jurisdictions.
Even though we cannot definitively determine the numbers of small
and large entities that may be affected by this proposed rule, there is
no indication that affected project applicants would be only small
entities or mostly small entities. It is unclear whether small entities
would be placed at a competitive disadvantage compared to large
entities.
There are no record-keeping requirements associated with the rule.
Similarly, there are no reporting requirements.
No Federal laws or regulations duplicate or conflict with this
proposed rule. However, other aspects of the ESA may overlap with the
critical habitat designations. For instance, listing of the Nassau
grouper under the ESA requires Federal agencies to consult with NMFS to
ensure against jeopardy to the species. Overlap of the presence of
other ESA-listed species, including listed corals, and Acropora
critical habitat with the areas proposed for critical habitat
designation protects the essential features of the proposed critical
habitat to the extent that projects or activities that may adversely
affect the proposed critical habitat also pose a threat to the listed
species or to Acropora critical habitat. Several fishery management
plans, developed under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act, serve to prevent overfishing of Nassau
grouper prey and promote the spawning, breeding, feeding, and growth to
maturity of reef fish such as the Nassau grouper. Overlap of the
proposed Nassau grouper critical habitat with several Federal protected
areas affords the critical habitat extensive protections against
potentially damaging activities. Some of these consultations on
activities associated with these protections will need to be reviewed
to consider potential effects to Nassau grouper critical habitat.
The RFA requires consideration of alternatives to the proposed rule
that would minimize significant economic impacts to small entities. We
considered the following alternatives when developing the proposed
critical habitat rule.
Alternative 1: No Action Alternative
No action (status quo): We would not designate critical habitat for
the Nassau grouper. Under this 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.
Under the status quo, there would be no increase in the number of ESA
consultations in the future that would not otherwise be required due to
the listing of the Nassau grouper. However, we have determined that the
physical and biological features forming the basis for our critical
habitat designation are essential to the Nassau grouper's conservation,
and conservation of the species will not succeed without these features
being available. Thus, the lack of protection of the critical habitat
features from adverse modification could result in continued declines
in abundance of Nassau grouper, and loss of associated economic and
other values the grouper provide to society, such as commercial diving
services. Small entities engaged in industries that depend on the
presence of Nassau grouper or elements of the species' critical
habitat, particularly coral reefs, would be adversely affected by
continued declines in the Nassau grouper. Thus, the no action
alternative is not necessarily a ``no cost'' alternative for small
entities. Moreover, this option would not be legally viable under the
ESA.
Alternative 2: Preferred Alternative
Under this alternative, the areas designated are waters from the
shoreline to depths ranging from 2 m to 30 m in seven units in Florida,
six units in Puerto Rico, three units in USVI, and one unit at Navassa
Island; and in deeper, offshore waters up to 200 fathoms (366 m) deep
of the Bajo de Sico and Grammanik and Hind Banks spawning sites. An
analysis of the costs and benefits of the preferred alternative
designation is presented in Section 10.1 of the Economic Report.
Relative to the no action alternative, this alternative will likely
result in an increase in administrative costs of section 7
consultations that would already occur absent designation. We have
determined that no categories of activities would require consultation,
and no project modifications would be required, in the future solely
due to this rule and the need to prevent adverse modification of the
proposed critical habitat. However, due to the protections afforded the
essential features of the proposed critical habitat under this
alternative, it is likely that consultations on future Federal actions
within those categories of activities will require additional
administrative effort to address specific impacts to Nassau grouper
critical habitat. This additional administrative effort would be an
incremental impact of this rule. Consultation costs associated with
those projects with larger or more diffuse action areas, i.e., projects
that may affect a wider range of listed species or critical habitats,
would likely be largely coextensive with listings or other regulatory
requirements.
The preferred alternative was selected because it best implements
the critical habitat provisions of the ESA by including the well-
defined environmental features that we can clearly state are essential
to the species' conservation, and because this alternative would reduce
the economic impacts on entities relative to an alternative that
encompasses a larger geographical area (see Alternative 3).
[[Page 62950]]
Alternative 3: Different Geographic Boundaries
We considered a third alternative that would have delineated the
designation for all nearshore units containing the development, refuge,
and foraging essential feature based a single depth contour of 30 m. We
evaluated this alternative based on our experience with the 2008
Acropora critical habitat designation, which created a single
designation for both acroporid corals species from 0 to 30 m depth,
generally, and to ensure inclusion across units of areas where the
growth and development essential feature is abundant. However, the
areas in which the development, refuge, and foraging essential feature
is sufficiently abundant and contiguously located to appreciably
promote conservation of the species comprise variable depth swaths
across units. Under Alternative 3, a larger number of future activities
could affect the Nassau grouper critical habitat and trigger the need
for ESA section 7 consultation, resulting in higher incremental
administrative costs compared to the preferred alternative. Thus, we
rejected this alternative because, relative to the preferred
alternative, it would likely increase incremental costs of the proposed
rule without incrementally promoting conservation of the species.
The agency seeks specific comments on its Initial Regulatory
Flexibility Act analysis.
Coastal Zone Management Act
We have determined that this action will have no reasonably
foreseeable effects on coastal uses or resources under the CZMA in
Florida, Puerto Rico, and USVI. Upon publication of this proposed rule,
these determinations will be submitted to responsible state agencies
for review under section 307 of the Coastal Zone Management Act.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain any new or revised collection
of information requirements. This rule, if adopted, would not impose
recordkeeping or reporting requirements on state or local governments,
individuals, businesses, or organizations. Therefore, the Paperwork
Reduction Act does not apply.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
This proposed rule will not produce a Federal mandate. The
designation of critical habitat does not impose a legally-binding duty
on non-Federal government entities or private parties. The only
regulatory effect is that Federal agencies must ensure that their
actions are not likely to destroy or adversely modify critical habitat
under section 7 of the ESA. Non-Federal entities that receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, but the Federal agency
has the legally binding duty to avoid destruction or adverse
modification of critical habitat. We do not anticipate that this rule,
if finalized, will significantly or uniquely affect small governments.
Therefore, a Small Government Action Plan is not required.
Consultation and Coordination With Indian Tribal Governments (Executive
Order 13175)
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal government.
This relationship has given rise to a special Federal trust
responsibility involving the legal responsibilities and obligations of
the United States toward Indian Tribes and with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights.
Pursuant to these authorities, lands have been retained by Indian
Tribes or have been set aside for tribal use. These lands are managed
by Indian Tribes in accordance with tribal goals and objectives within
the framework of applicable treaties and laws. Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, outlines
the responsibilities of the Federal government in matters affecting
tribal interests.
In developing this proposed rule, we reviewed maps and did not
identify any areas under consideration for critical habitat that
overlap with Indian lands. Based on this, we preliminarily found the
proposed critical habitat does not have tribal implications.
References Cited
A complete list of all references cited in this rulemaking can be
found on our website at <a href="https://www.fisheries.noaa.gov/species/nassau-grouper#conservation-management">https://www.fisheries.noaa.gov/species/nassau-grouper#conservation-management</a> and is available upon request from NMFS
(see ADDRESSES).
List of Subjects
50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 226
Endangered and threatened species.
Dated: October 6, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR parts 223 and 226 as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. In Sec. 223.102, amend the table in paragraph (e) by revising the
entry for Nassau grouper under the ``Fishes'' subheading to read as
follows:
Sec. 223.102 Enumeration of threatened marine and anadromous
species.
* * * * *
(e) The threatened species under the jurisdiction of the Secretary
of Commerce are:
----------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Grouper, Nassau............. Epinephelus Entire species. 81 FR 42268, 226.230 NA
striatus. June 29, 2016.
[[Page 62951]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
* * * * *
PART 226--DESIGNATED CRITICAL HABITAT
0
3. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
4. Add Sec. 226.230 to read as follows:
Sec. 226.230 Critical habitat for the Nassau grouper.
Critical habitat is designated in the following state and
territories as depicted in the maps below and described in paragraphs
(a) through (d) of this section. The maps as clarified by the textual
descriptions in this section are the definitive sources for determining
the critical habitat boundaries.
(a) Critical habitat boundaries. Except as noted in paragraph (c)
of this section, critical habitat is defined as:
(1) Navassa Island--All waters surrounding Navassa Island, from the
shoreline to the 30 m isobath.
(2) Puerto Rico Unit 1--Isla de Mona--All waters from the western
and southern shorelines out to the coral reef edge in 20-30 m depths.
(3) Puerto Rico Unit 2--Desecheo Island--All waters from the
southwest shoreline out to the edge of the coral reef habitat in about
30 m depth.
(4) Puerto Rico Unit 3--Southwest--All waters from the southwestern
shoreline of Puerto Rico, between Playa Tres Tubos just south Mayaquez
and Punta Ballena in Guanica, extending offshore to depths of about 10m
and, near La Parguera, to depths of about 15 m.
(5) Puerto Rico Unit 4--Northeast--All waters from the northeastern
shoreline of Puerto Rico out to depths of about 10 m between Cabeza
Chiquita and Punta Lima.
(6) Puerto Rico Unit 5--Vieques Island--There are two areas that
make up this unit. First, all waters from the southwestern shoreline
out to the inner reef in depths of about 2 m between Punta Boca
Quebrada and Punta Vaca. Second, all waters from the southeastern and
northeastern shorelines out to the inner reef in depths of about 2 m
between Punta Mulas and Ensenada Honda near Cayo Jalovita.
(7) Puerto Rico Unit 6--Isla de Culebra--There are two areas that
make up this unit. First, all waters from the southeastern shoreline of
Isla de Culebra out to the reef ledge in depths of about 15 m between
Punta del Soldado and Cabeza de Perro, excluding the bays of Puerto del
Manglar and Ensenada Honda. Second, all waters from the southern
shoreline of Isla Culebrita out to the nearshore reef in depths of
about 5 m between the western point of the island and Punta del Este.
(8) United State Virgin Islands Unit 1--St. Thomas--There are two
areas that make up this unit. First, all waters off the southeast end
of St. Thomas between Stalley Bay and Cabrita Point out to the reef
ledge in depths of about 15 m and surrounding Great St. James, Little
St. James, and Dog Islands. Second, all waters on the south side of
Water Island from the shoreline out to the coral reef in depths of
about 5 m between Druif Point and the south end of Sand Bay.
(9) United State Virgin Islands Unit 2--St. John--All waters on the
east end of St. John from the shoreline out to the inner coral reef in
depths of about 2 m between White Point on the south coast and Leinster
Point on the north coast.
(10) United State Virgin Islands Unit 3--St. Croix--There are two
areas that make up this unit. First, all waters on the east end of St.
Croix from the shoreline to the outer coral reef edge in depths of
about 10 m on the north coast and 15 m on the eastern point and south
coast between Batiste Point and Pelican Cove Beach, excluding the
Christiansted navigation channel. Second, all waters on the north side
of Buck Island between the shoreline and the coral reef in depths of
about 5 m.
(11) Florida Unit 1--Biscayne Bay/Key Largo--All waters of Biscayne
Bay (bounded on the north by the Rickenbacker Causeway), Card Sound
(bounded on the south by Card Sound Road), and the Atlantic Ocean out
to the coral reef and hardbottom in depths of about 20m between
Stiltsville, south of Cape Florida, and Harry Harris Beach Park near
the south end of Key Largo, excluding the Intracoastal Waterway; unit
overlaps areas of Miami-Dade and Monroe County.
(12) Florida Unit 2--Marathon--All waters from the southern
shoreline of the City of Marathon in Monroe County out to the 15 m
isobath between Knights Key and Grassy Key, excluding the Boot Key
navigation channel.
(13) Florida Unit 3--Big Pine Key to Geiger Key--All waters south
of U.S. Highway 1 out to the 15 m isobath between the eastern point of
Big Pine Key and Geiger Key in Monroe County.
(14) Florida Unit 4--Key West--All shoal waters south of Woman Key
between 5 and 30 m depth that contain coral reef and hardbottom and
seagrass habitat in Monroe County.
(15) Florida Unit 5--New Ground Shoal--All New Ground Shoal waters
shown in the map below for this unit in Monroe County.
(16) Florida Unit 6--Halfmoon Shoal--All Halfmoon Shoal Waters
shown in the map below for this unit in Monroe County.
(17) Florida Unit 7--Dry Tortugas--There are three areas which make
up this unit located in Monroe County. First, all waters surrounding
Loggerhead Key to depths of about 2 m. Second, all waters surrounding
Garden Key to depths out to about 3.5 m. Third, all waters surrounding
Bush Key to depths out to about 5.5 m.
(18) Spawning Site Unit 1--Bajo de Sico--All waters encompassed by
the 100m isobath in the Bajo de Sico area.
(19) Spawning Site Unit 2 -Grammanik Bank/Hind Bank--All waters
which make up the Hind Bank and the Grammanik Bank, interconnecting
waters between these banks, and waters extending out to the 200 fathom
line directly south from Grammanik Bank.
(b) Essential features. The features essential to the conservation
of Nassau grouper are: are:
(1) Recruitment and developmental habitat. Areas from nearshore to
offshore necessary for recruitment, development, and growth of Nassau
grouper containing a variety of benthic types that provide cover from
predators and habitat for prey, consisting of the following:
(i) Nearshore shallow subtidal marine nursery areas with substrate
that consists of unconsolidated calcareous medium to very coarse
sediments (not
[[Page 62952]]
fine sand) and shell and coral fragments and may also include cobble,
boulders, whole corals and shells, or rubble mounds, to support larval
settlement and provide shelter from predators during growth and habitat
for prey.
(ii) Intermediate hardbottom and seagrass areas in close proximity
to the nearshore shallow subtidal marine nursery areas that protect
growing fish from predation as they move from nearshore nursery areas
into deeper waters and provide habitat for prey. The areas include
seagrass interspersed with areas of rubble, boulders, shell fragments,
or other forms of cover; inshore patch and fore reefs that provide
crevices and holes; or substrates interspersed with scattered sponges,
octocorals, rock and macroalgal patches, or stony corals.
(iii) Offshore Linear and Patch Reefs in close proximity to
intermediate hardbottom and seagrass areas that contain multiple
benthic types, for example, coral reef, colonized hardbottom, sponge
habitat, coral rubble, rocky outcrops, or ledges, to provide shelter
from predation during maturation and habitat for prey.
(iv) Structures between the subtidal nearshore area and the
intermediate hardbottom and seagrass area and the offshore reef area
including overhangs, crevices, depressions, blowout ledges, holes, and
other types of formations of varying sizes and complexity to support
juveniles and adults as movement corridors that include temporary
refuge that reduce predation risk as Nassau grouper move from nearshore
to offshore habitats.
(2) Spawning Habitat. Marine sites used for spawning and adjacent
waters that support movement and staging associated with spawning.
(c) Areas not included in critical habitat. Critical habitat does
not include: Managed areas where the substrate is continually disturbed
by planned management activities authorized by local, state, or Federal
governmental entities at the time of critical habitat designation, and
that will continue to be disturbed by such management. Examples
include, but are not necessarily limited to, dredged navigation
channels, shipping basins, vessel berths, and active anchorages.
Pursuant to ESA section 4(a)(3)(B), all area subject to the Naval Air
Station Key West Integrated Natural Resources Management Plan.
(d) Maps of Nassau grouper critical habitat.
(1) Spatial data for these critical habitats and mapping tools are
maintained on our website and are available for public use
(<a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/critical-habitat">www.fisheries.noaa.gov/national/endangered-species-conservation/critical-habitat</a>).
(2) Overview maps of each proposed critical habitat unit follow.
BILLING CODE 3510-22-P
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[FR Doc. 2022-22195 Filed 10-14-22; 8:45 am]
BILLING CODE 3510-22-C
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