Rule2023-28483
Endangered and Threatened Species; Designation of Critical Habitat for the Nassau Grouper
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 2, 2024
Effective
February 1, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
We, NMFS, designate critical habitat for the threatened Nassau grouper (Epinephelus striatus) pursuant to section 4 of the Endangered Species Act (ESA). Specific areas designated as critical habitat contain approximately 2,384.67 sq. kilometers (km) (920.73 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 critical habitat designation, as well as all public comments that were received.
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[Federal Register Volume 89, Number 1 (Tuesday, January 2, 2024)]
[Rules and Regulations]
[Pages 126-176]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28483]
[[Page 125]]
Vol. 89
Tuesday,
No. 1
January 2, 2024
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; Final Rule
Federal Register / Vol. 89 , No. 1 / Tuesday, January 2, 2024 / Rules
and Regulations
[[Page 126]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 226
[Docket No. 231219-0312]
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: Final rule.
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SUMMARY: We, NMFS, designate critical habitat for the threatened Nassau
grouper (Epinephelus striatus) pursuant to section 4 of the Endangered
Species Act (ESA). Specific areas designated as critical habitat
contain approximately 2,384.67 sq. kilometers (km) (920.73 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 critical habitat
designation, as well as all public comments that were received.
DATES: This rule becomes effective February 1, 2024.
ADDRESSES: The final rule, maps, Final Regulatory Flexibility Analysis,
and Critical Habitat Report used in preparation of this final rule are
available on the NMFS website at <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/critical-habitat">https://www.fisheries.noaa.gov/national/endangered-species-conservation/critical-habitat</a>. All comments
and information received are available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
All documentation is also available upon request.
FOR FURTHER INFORMATION CONTACT: Orian Tzadik, NMFS Southeast Region,
<a href="/cdn-cgi/l/email-protection#ffb08d969e91d1ab859e9b9694bf91909e9ed1989089"><span class="__cf_email__" data-cfemail="eea19c878f80c0ba948f8a8785ae80818f8fc0898198">[email protected]</span></a>, 813-906-0353.
SUPPLEMENTARY INFORMATION: In accordance with section 4(b)(2) of the
ESA and our implementing regulations (50 CFR 424.12), this final rule
is based on the best scientific data available concerning the range,
biology, habitat, threats to the habitat, and conservation objectives
for the Nassau grouper (Epinephelus striatus). We have reviewed the
available data and public comments received on the proposed rule. We
used the best data available to identify: (1) features essential to the
conservation of the species; (2) the specific areas within the occupied
geographical areas that contain the physical essential feature that may
require special management considerations or protection; (3) the
Federal activities that may impact the critical habitat; and (4) the
potential impacts of designating critical habitat for the species. This
final rule is based on the biological information and the economic,
national security, and other relevant impacts described in the Critical
Habitat Report. This supporting document is available online (see
ADDRESSES) or upon request (see FOR FURTHER INFORMATION CONTACT).
Background
On June 29, 2016, we published a final rule that listed Nassau
grouper as a threatened species (81 FR 42268). The listing rule
identified fishing at spawning aggregations and inadequate law
enforcement as the most serious threats to this species. No critical
habitat was designated for the Nassau grouper at that time.
On October 17, 2022, NMFS proposed to designate critical habitat
for Nassau grouper within U.S. jurisdictions throughout the range of
the species. We requested public comment on the proposed designation
and supporting reports during a 60-day comment period, which closed on
December 15, 2022 (87 FR 62930). The essential features of the proposed
Nassau grouper critical habitat consisted of (1) nearshore to offshore
areas necessary for recruitment, development, and growth of Nassau
grouper containing a variety of benthic types that provide cover from
predators and habitat for prey, and (2) marine sites used for spawning
and adjacent waters that support movement and staging associated with
spawning. The final rule does not modify the definitions of these
essential features but does identify several new areas containing these
features. The proposed rule identified 19 specific areas, or units of
critical habitat, in waters off the coasts of southeastern Florida,
Puerto Rico, Navassa, and the USVI that contain the essential features.
The area covered by the Naval Air Station Key West (NASKW) Integrated
Natural Resource Management Plan (INRMP) was found to be ineligible for
designation pursuant to section 4(a)(3)(B)(i) of the ESA due to the
conservation benefits the INRMP affords the Nassau grouper. Pursuant to
section 4(b)(2) of the ESA, no areas were proposed for exclusion from
the designation on the basis of economic, national security, and other
relevant impacts. We did not propose to designate any unoccupied
critical habitat.
This final rule relies on the ESA section 4 implementing
regulations that are currently in effect, which include provisions that
were revised or added in 2019. As explained in the proposed critical
habitat rule, on July 5, 2022, the United States District Court for the
Northern District of California issued an order vacating the ESA
section 4 implementing regulations that were revised or added to 50 CFR
part 424 in 2019, which included changes made to the definition of
physical or biological feature and the criteria for designating
unoccupied critical habitat (``2019 regulations''; 84 FR 45020, August
27, 2019). In the proposed rule, we determined that the critical
habitat determination and designation would be the same under the 50
CFR part 424 regulations as they existed before 2019 and under the
regulations as revised by the 2019 rule. On September 21, 2022, the
U.S. Court of Appeals for the Ninth Circuit granted a temporary stay of
the district court's July 5 order, and on November 14, 2022, the
Northern District of California issued an order granting the
government's request for voluntary remand without vacating the 2019
regulations. As a result, the 2019 regulations are once again in
effect, and we are applying the 2019 regulations here. Following the
remand of the 2019 regulations, on June 22, 2023, NMFS and the U.S.
Fish and Wildlife Service published a proposed rule to revise the ESA
section 4 implementing regulations (88 FR 40764). Thus, for purposes of
this final rule, we also considered whether our analyses or conclusions
would be any different under the regulations in effect prior to 2019 or
under the recently proposed regulations (87 FR 62930). We have
determined that while our analysis would differ in some respects, the
conclusions ultimately reached and presented here would be the same
under either set of regulations.
This final rule describes the critical habitat for Nassau grouper
in waters off the coasts of Florida, and the U.S. Caribbean (i.e.,
waters off the coasts of Navassa Island, Puerto Rico, and the U.S.
Virgin Islands) and the basis for its designation. It summarizes
relevant information regarding the biology and habitat use of Nassau
grouper; the methods used to develop the critical habitat designation;
a summary of, and responses to, public comments received; and the final
critical habitat determination. The more detailed analyses that
contributed to the conclusions presented in this final rule, including
the analysis of areas eligible for designation, can be found in the
Critical Habitat Report (NMFS, 2022)
[[Page 127]]
and the Nassau Grouper Biological Report (Hill and Sadovy de Mitcheson,
2013). These supporting documents are referenced throughout this final
rule and are available for review (see ADDRESSES).
Statutory and Regulatory Background for Critical Habitat Designations
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. Our regulations provide that critical habitat shall not be
designated within foreign countries or in other areas outside U.S.
jurisdiction (50 CFR 424.12(g)).
Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or controlled by
the Department of Defense (DOD) or designated for its use that are
subject to an INRMP prepared under section 101 of the Sikes Act (16
U.S.C. 670a) if the Secretary determines in writing that such plan
provides a benefit to the species for which critical habitat is
designated. Section 4(b)(2) of the ESA requires 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. However, designating critical habitat can help focus the
efforts of other, non-federal, conservation partners (e.g., state and
local governments, individuals, and non-governmental organizations).
Species Description
Nassau grouper, Epinephelus 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 shifts in habitat utilization as
they mature: 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 two-part life cycle with pelagic eggs and larvae but
demersal juveniles and adults. It undergoes a series of shifts of both
habitat and diet as it matures from larval to adult stage. Adults
maintain resident home ranges (Randall, 1962 1963; Carter et al.,
1994), but may undergo long migrations to spawning aggregation sites
(Bolden, 2000). Reproduction is known to occur only 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 that
spherical, buoyant eggs hatch 23-40 hours following fertilization. Eggs
of groupers that spawn at sea require a salinity of about 30 parts per
thousand (ppt) or higher for maximum survivorship and for them to float
(Tucker, 1999). Both buoyancy and survivorship decrease as salinity
declines below optimum levels, resulting in less than 50% hatching
rates at salinities of 24 ppt (Ellis et al., 1997).
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-
[[Page 128]]
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 (Shenker 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, occurring in short pulses
during highly limited periods (often several days) each year, and has
been found to be associated with prevailing winds, currents, and lunar
phase (Shenker et al., 1993). These late larvae/early juvenile Nassau
grouper (18-30 mm total length (TL)) moved inshore from pelagic
environments to shallower nursery habitats (Shenker et al., 1993).
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 (30-80 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 and
seagrass habitat. The size ranges for the three juvenile 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 nearshore areas for about 1 to 2 years, where they are found
associated with structure 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 (31.7 <plus-minus> 2.9 mm TL (mean <plus-
minus> standard deviation), 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; direct holdfast attachment to the coral by the red algae 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 of Nassau grouper 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) showed that early
juveniles (8.5 <plus-minus> 11.7 cm TL, 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 increased predation rates and
lowered the survival of recruits (Dahlgren and Eggleston, 2000).
Early juveniles in the Bahamas have a disproportionately high
association with the macroalgae Laurencia spp.; whereas other
microhabitats (e.g., seagrass, corals) are used in proportion to their
availability (Dahlgren and Eggleston, 2001). Reports from Mona Island,
Puerto Rico (Aguilar-Perera et al., 2006) indicate that early juveniles
(60-120 mm TL) were found 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
[[Page 129]]
from nearshore macroalgae habitat to adjacent patch reefs located
within either seagrass or hardbottom areas, between the nearshore
environment and the offshore reefs. 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 juvenile density within 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).
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 using ambush predation techniques (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
provide some protection from predation; however, juveniles may leave
their refuges to forage for food and during ontogenetic shifts in
habitat (Eggleston, 1995).
Late Juveniles (~15-50cm 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 (18.4 <plus-minus> 3.4 cm TL, 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; or 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, suggesting that shelter
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). In a
survey of seagrass bays in the USVI, Green (2017) found that juvenile
Nassau grouper (n=46, 6-30 cm TL) were more abundant in areas with
taller canopy and less dense native seagrasses compared to higher
density of the same seagrasses and low canopy height. Differences in
abundance were attributed to the taller 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 permit better movement by Nassau grouper to forage
(Green, 2017).
Juvenile Nassau grouper also rely on hardbottom structure for
refuge from predation and ambush of potential prey. Nassau grouper
residing on patch reefs use 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). Suitable refuges provide cover for juvenile Nassau
grouper with crevices, holes, and ledges 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. The weights of mature individuals trapped in deep
areas were about double that of Nassau grouper captured in the shallow
areas. While there can be an overlap of adults and juveniles in
hardbottom habitat areas, size segregation generally occurs by depth,
with smaller fish typically occurring in shallow inshore waters (3 to
17 m), and larger individuals more commonly occurring 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 Mitcheson, 2013)
and 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). Reports from fishing activities in the Leeward Islands
show that although Nassau grouper were 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 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 size of adult Nassau grouper,
with larger home ranges at less structurally-complex reefs (Bolden,
2001). Nassau grouper are
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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, high-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 reef fish and invertebrates use
hardbottom areas located between the nearshore environment and the
outer reefs as juveniles.
As Nassau grouper move from their nearshore settlement habitat,
through hardbottom and seagrass mosaic habitats, to the offshore reefs
they occupy as adults, shelter provides an essential life history
function by reducing risk of predation and promoting successful ambush
hunting. 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 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 other
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). Similarly, in the
Bahamas, recently settled and post-settlement stage (25-35 mm TL)
Nassau grouper living within the macroalgae and seagrass blades have a
primarily invertebrate diet of 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 (20.0-29.9 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), and 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 although feeding can take place around the clock, 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
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periods, from about November and 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,
Nassau grouper may no longer form spawning aggregations at many of
these sites (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 close as 350 m to the
shore, and close to a drop-off into deep water. These sites are
characteristically small, highly circumscribed areas, measuring several
hundred meters in diameter, with a diversity of bottom types, including
soft corals, sponges, stony coral outcrops, and sandy depressions
(Craig, 1966; Smith 1990; Beets and Friedlander, 1992; Colin, 1992;
Aguilar-Perera, 1994). Adults are known to travel hundreds of
kilometers (Bolden, 2000) to gather at specific spawning aggregation
sites. 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
(Kobara and Heyman, 2008). 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 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 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 (Semmens et al., 2007).
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).
Spawning Activity and Behavior
Spawning occurs for up to 1.5 hours around sunset for several days
(Whaylen et al., 2007). All spawning events have been recorded within
20 minutes of sunset, with most within 10 minutes of sunset (Colin,
1992). 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
of the fish 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 spawning
individuals to the bottom.
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 three sites: Bajo de Sico in waters off the coast of
Puerto Rico (Scharer et al., 2012), Grammanik Bank in waters off the
coast of the USVI (Nemeth et al., 2006), and Riley's Hump within the
Tortugas South Ecological Reserve in Florida (Locascio and Burton 2015;
J. McCawley, Pers. comm., December 9, 2022). These three sites are all
at least partially protected under existing fishery regulations, as
discussed below. For all three sites, it is unclear whether they are
reconstituted (i.e., reestablished after depletion) or novel spawning
sites. Nassau grouper spawning has been positively confirmed at Bajo de
Sico (Scharer et al. 2012; Scharer et al. 2017; Tuohy et al. 2017) and
Grammanik Bank (Nemeth et al. 2006; Nemeth et al. 2009; Nemeth et al.
2023). At Riley's Hump, visual and acoustic evidence suggests that
spawning is occurring there (Locascio and Burton 2015; J. McCawley,
Pers. comm., December 9, 2022). 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 continued existence or its current value to
Nassau grouper spawning.
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Bajo de Sico
Bajo de Sico, in waters off the coast of 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 rise from a mostly flat, gradually sloping shelf that
extends to 100 m deep. 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 a mesophotic coral
ecosystem due to the range of depths and coral/algae development. Where
water depths are less than 50 m, this area is characterized by 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); the
closure also partially 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 activity (Scharer et al., 2012). Subsequent diver surveys
conducted from 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 of tagged Nassau
grouper (n=29) 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 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, which is 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, all fishing for species
other than highly migratory species is prohibited from February 1 to
April 30 of each year. The initial intent of the spatial closure was to
protect yellowfin grouper (Mycteroperca venenosa) when they aggregate
to spawn (70 FR 62073, October 28, 2005; Scharer et al., 2012), but
this closure has also proven beneficial for the protection of spawning
aggregations of tiger grouper (M. venenosa), yellowmouth grouper (M.
interstitialis), cubera snapper (Lutjanus cyanopterus) and Nassau
grouper (Nemeth et al. 2006).
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
(Mycteroperca venenosa) 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 closed 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 suggests 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, Nassau grouper have been observed in groups of 100 to 300
fish
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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 (R.S. Nemeth, pers. comm., February 13, 2022).
Spawning occurred well above the bottom in 30 to 40 m depth.
Vocalization by Nassau grouper has suggested that abundance and
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 and lie in an east-west
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) and by Nemeth et al. (2023), that 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 increasing abundance at 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 Hind Bank Marine Conservation
District) shifting spawning locations to the Grammanik Bank, a distance
of about 5 km; (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 the Grammanik Bank spawning
site; or (3) Self-recruitment by local reproduction from the remnant
population. Each of these recovery scenarios is supported by various
researchers who have observed these same phenomena in separate
locations. The first 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.
The second scenario is supported by Jackson et al. (2014), who found
strong genetic mixing of Nassau grouper populations among the 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. The third scenario relies
on self-recruitment, a popular strategy of recruitment among marine
species.
Riley's Hump, Florida
Riley's Hump, Florida, is located approximately 16 km to the
southwest of the Dry Tortugas National Park and is within the
boundaries of the Tortugas South Ecological Reserve. The larger area of
the Dry Tortugas--which encompasses the Dry Tortugas National Park, the
Tortugas Bank, the Tortugas South Ecological Reserve, and the Tortugas
North Ecological Reserve--includes a series of carbonate banks and sand
shoals located southwest of the Florida continental margin. Riley's
Hump is one of these carbonate banks, separated from the Tortugas Bank
to the north by a deep trough, which is filled with thick sedimentary
deposits. The bank crests at about 30 m, and has a 20 m escarpment at
the shelf break on the south side of the bank (Mallinson et al., 2003).
While coral cover on Riley's Hump is relatively low, fish diversity is
high and is characterized by species that are rare in other locations
(Dahlgreen et al., 2001).
Riley's Hump is located within the boundaries of the Tortugas South
Ecological Reserve, which has been closed to fishing since 2001, when
both the North and South Ecological Reserves were established, adjacent
to the Dry Tortugas National Park. The Tortugas South Ecological
Reserve hosts several known annual spawning aggregations, including
aggregations of mutton snapper, and likely black grouper, red grouper,
red hind, and Nassau grouper (Locascio and Burton, 2015). The location
and depth of Riley's Hump make it particularly difficult to conduct
annual monitoring projects. However, visual surveys have documented
higher densities of Nassau groupers at Riley's Hump than anywhere in
Florida, and are estimated at roughly 1 adult per 0.04 acres (D.
Morley, Pers. comm., September 6, 2023). Some observations have
included individuals displaying colorations and producing sounds
associated with spawning (Locascio and Burton, 2015, J. Locascio, Pers.
comm., September 6, 2023).
The mechanism behind the spawning aggregation at Riley's Hump
remains unclear. The southern Florida reef tract is near the northern
extent of the range of Nassau grouper, and the species is extremely
rare in this location. However, historical accounts suggest that the
species was once more common in the area; this aggregation could be a
remnant of a depleted historical aggregation, or a new aggregation that
is being formed by individuals which have settled and matured in the
area.
Summary of Changes From the Proposed Critical Habitat Designation
We evaluated the comments and new information received from the
public during the public comment period. Based on our consideration of
these comments and the best scientific information available (as noted
below in the Summary of Comments and Responses section), we made the
following substantive changes to the final rule:
1. Based on new information received during the public comment
period, coupled with additional local ecological knowledge and baseline
ecological studies we obtained following publication of the proposed
rule, and as described above (see Natural History and Habitat Use),
Riley's Hump, Florida, is considered a third spawning aggregation area
in U.S. waters, and we are including this area in the critical habitat
designation. To reflect this change in the critical habitat
designation, we added the following textual description of the Riley's
Hump spawning unit to read as follows: Spawning Site Unit 3--Riley's
Hump--All waters encompassing Riley's Hump located southwest of the Dry
Tortugas out to the 35 m isobath on the north, west, and east side of
the hump and out to the 50 m isobath on the south side of the hump. See
comment 10 and our response to the comment for further explanation of
this change.
2. We extended the offshore boundary of Puerto Rico Unit 1 out to
the 50 m isobaths off the islands of Mona and Monito and modified the
associated description to read as follows: Puerto Rico Unit 1--Isla de
Mona and Monito--All waters surrounding the islands of Mona and Monito
from the shoreline to the 50 m isobaths. This change was driven by
years of monitoring data and scientific observations we received during
the public comment period from an
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internationally-recognized researcher, whose work includes in-depth
studies of habitat use by Nassau grouper at these locations. Comment 8
and our response to the comment provides further explanation of this
change.
3. We extended the offshore boundary for Puerto Rico Unit 2 out to
the 50 m isobaths off the island of Desecheo and revised the associated
textual description to read as follows: Puerto Rico Unit 2--Desecheo
Island--All waters surrounding the island of Desecheo from the
shoreline to the 50 m isobath. This change was driven by years of
monitoring data and scientific observations we received from the same
researcher regarding this specific habitat unit. See comment 8 and our
response to the comment for a more detailed explanation of this change.
We updated the maps of Puerto Rico Units 1 and 2 to reflect the
extension of these units' boundaries and have included a new map of
Spawning Site Unit 3--Riley's Hump. As a result of these changes, the
total area encompassed by this final designation has increased by 32.4
sq. km (12.51 sq. miles), compared to the proposed designation.
Other Changes
In addition to substantive changes in the final rule described
above, we also made clarifying changes to the final rule, and to the
Critical Habitat Report, in response to public comments and new
information. Specifically, the economic values are updated and detailed
in both the final rule and the Critical Habitat Report. We considered
whether the extended boundaries for Puerto Rico Units 1 and 2 and the
addition of Spawning Site Unit 3--Riley's Hump would alter the number
and nature of ESA section 7 consultations included in the analysis and
whether any additional economic, national security, other relevant
impacts that were not previously considered could be identified. We
confirmed that no additional section 7 consultations relevant to the
expansion of Puerto Rico Units 1 and 2 or the addition of Spawning Site
Unit 3--Riley's Hump are expected or should be incorporated into the
economic analysis, and we received no additional information regarding
future planned or expected federal activities within these areas.
Therefore, we project no additional economic impacts as a result of
these changes. Further, the added areas are already located within
reserve areas and are not used for military purposes. For this reason,
the newly added areas pose no impacts to national security. No other
relevant impacts were identified as a result of these changes in the
specific areas of the critical habitat. Therefore, while the specific
areas under consideration changed slightly to include an additional
32.4 sq. km (12.51 sq. miles), no changes were made to the conclusions
of our ESA section 4(b)(2) analysis.
Summary of Public Comments and Responses
We solicited comments on the proposed rule and the supporting
Critical Habitat Report during a 60-day comment period (87 FR 62930,
October 17, 2022). To facilitate public participation, the proposed
rule was made available on our website and comments were accepted via
both standard mail and through the Federal eRulemaking portal, <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
We received 18 comments; of these, 16 comments were generally
supportive of the proposed rule. One comment opposed the proposed
designation, but it provided no rationale or additional information to
controvert our analysis or conclusions. Another comment was not
relevant to the subject of Nassau grouper critical habitat and was
likely submitted to the wrong comment docket. All public comments are
posted on the Federal eRulemaking Portal (docket number: NOAA-NMFS-
2022-0073). We reviewed and fully considered all relevant public
comments and significant new information received in developing the
final critical habitat designation. Where appropriate, we have combined
similar comments from multiple commenters and addressed them together.
General Comments in Support of the Proposed Rule
Comment 1: The majority (89 percent) of the comments we received
were supportive of the proposed rule and did not include substantive
content or suggest any changes to the proposed critical habitat
designations. Many of these comments noted that critical habitat
designation is a crucial aspect of population recovery while also
noting benefits to the surrounding ecosystem. Other comments pointed to
the decline in habitat quality throughout the range of the Nassau
grouper and the consequent need to preserve and protect habitat that is
deemed critical to the species. Many of the comments also acknowledged
human-induced reduction of the species via overfishing, specifically at
spawning aggregation sites.
Response: We appreciate these comments. We look forward to working
with stakeholders throughout the range of the Nassau grouper to promote
the recovery of the species, and acknowledge that the critical habitat
designation is one step in that process. As described in the final
listing determination (81 FR42268), we concur that overfishing,
particularly at spawning aggregations, is the primary threat to the
species.
Comments on Need for Special Management Considerations or Protection
Comment 2: One commenter requested that we expand the Need for
special management considerations or protection section.
Response: The commenter did not provide any additional detail as to
what aspect of the section needed further expansion or explain why the
commenter thought our analysis was insufficient. In response to this
comment, we reviewed our discussion and explanation of how the
identified physical and biological features essential to the
conservation of Nassau grouper meet the ``may require special
management considerations or protections'' aspect of the statutory
definition of ``critical habitat.'' As described in the proposed rule
(87 FR 62930), we found that 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 directly and indirectly
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, fishing activities, and anthropogenically-
induced climate change. 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. By
identifying and discussing
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these various sources and types of impacts on the essential features of
the critical habitat we provide sufficient demonstration that the
essential features meet the ``may require special management or
protections'' prong of the definition of critical habitat. We note that
we are not obligated to identify all possible management concerns or
protections that may be relevant, nor does the ESA require that we do
so. However, in response to this comment, we note that activities that
inhibit fish movement to and from spawning sites or create conditions
that deter the fish from selecting the site for reproduction by
altering the essential features described in this rule, might include
the placement of in-water barriers, direct physical destruction of
benthic habitats both at the site and within migratory corridors, and
pollution (e.g., chemical or noise) that renders the site less
biologically suitable.
Comments on Economic Analysis
Comment 3: One commenter asked whether private landowners were
contacted regarding the economic impact of the proposed critical
habitat designation.
Response: Private landowners as well as all other stakeholders were
given an opportunity to provide comments during the 60-day public
comment period on the proposed rule. In addition, a thorough economic
analysis was conducted as an integral part of the critical habitat
proposed rule (81 FR 42268, October 17, 2022). All publicly available
resources were used to identify economic impacts that would result from
the designation of critical habitat. As explained in the economic
analysis, the only types of activities for which private landowners
might incur costs stemming from the critical habitat are those related
to in-water and coastal construction (e.g., docks, boat ramps, marina).
Further, the economic analysis concludes that the designation would not
result in the need for changes to such projects beyond those already
required due to existing (``baseline'') regulations, such as the
presence of the ESA-listed Nassau grouper and corals and existing
designated critical habitat for seven species of listed corals. The
only incremental costs potentially incurred by private landowners are
the administrative costs of addressing effects to Nassau grouper
critical habitat through informal and formal section 7 consultations,
and most of these costs would be borne by the responsible federal
action agency (e.g., U.S. Army Corps of Engineers). Due to the presence
of ESA-listed species and designated critical habitat for other
species, these section 7 consultations would occur absent the
designation of critical habitat for Nassau grouper. The analysis
projects that fewer than two section 7 formal consultations and fewer
than 80 informal consultations on construction-related projects would
consider effects to Nassau grouper critical habitat over the next 10
years. This equates to less than 0.2 formal consultations and fewer
than eight informal consultations per year. Based on the best available
information, third party administrative section 7 costs directly
attributable to Nassau grouper critical habitat would be approximately
$510 per informal consultation (2022 dollars). It is highly unlikely
that these costs would deter a private landowner from completing a
construction project. As there would be no incremental costs to or
restrictions placed on private landowners conducting activities that do
not involve a federal agency, there is no basis for concluding there
would be any loss in property values or impact on the scope or volume
of non-federally regulated activities.
Comments on Exclusion of Managed Areas
Comment 4: One commenter asked why managed areas, as defined in the
proposed rule, are not considered for critical habitat designation. A
separate commenter referred to the proposed treatment of navigation
channels as managed areas and requested that NMFS include navigation
channels and their immediate surroundings within the critical habitat
designation. This commenter also stated that federal activities that
adversely affect critical habitat should be mitigated under ESA section
7 and not excluded from critical habitat designation.
Response: The proposed rule specified that an area would not be
included in critical habitat if it is a managed area 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 will continue to be disturbed
by such management. Examples of managed areas included dredged
navigation channels, shipping basins, vessel berths, and active
anchorages. Due to the ongoing use and maintenance of these managed
areas and the persistent disturbance of the bottom, the areas are poor
habitat with little to no ability to support the long-term conservation
of Nassau grouper. Therefore, we did not include managed areas within
the proposed critical habitat designation. We also explained in the
proposed rule that channel dredging may result in sedimentation impacts
beyond the actual channel edge, and to the extent these impacts are
persistent, they are expected to recur whenever the channel is dredged
and are of such a level that the areas in question are currently
unsuitable to support the essential features of critical habitat. As a
result, we consider such areas as part of the managed areas that are
not included in the final designation. We note that ESA section 7
consultations on actions that propose new or modified navigation
channels will consider impacts to the essential features of Nassau
grouper critical habitat outside of pre-existing managed areas.
Comments on Predation Threats to the Species
Comment 5: One commenter questioned why impacts from invasive
lionfish were not included in the critical habitat proposed rule and
provided a reference that observed Nassau grouper in direct competition
with the red lionfish in high quality habitats, as well as predation by
lionfish on juvenile Nassau grouper.
Response: The final listing determination for Nassau grouper (81
FR42268; June 29, 2016) considered the factors for listing as outlined
in section 4(a)(1). One of these factors (factor C) identifies
predation as a potential basis for listing a species. Based on the
extinction risk analysis and supporting documentation in the biological
report, it was determined that Nassau grouper is at a ``very low risk''
of extinction due to predation. Any additional threats from invasive
species could be considered under risk factor E (i.e., other natural or
manmade factors affecting its continued existence), however,
competition with invasive lionfish was not considered as a threat to
the existence of the species, nor were any other invasive species
considered as direct threats to the existence of Nassau grouper. Nassau
grouper occupy a niche as a large-bodied predator within coral reef
fish communities throughout its range. As an integral part of the fish
community, they are subjected to competition with a variety of other
species, including the red lionfish (Pterois volitans), but we have no
information to undermine our previous conclusion that Nassau grouper is
at low risk of extinction due to predation. Additionally, there is no
indication that red lionfish alter the essential features of the
critical habitat designation. We reviewed and considered the comment,
as well as the referenced paper, and did not find a basis to alter the
areas designated as critical habitat, nor the
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essential features of critical habitat, as a result. The referenced
paper specifically mentions that red lionfish do not prey on Nassau
grouper, and therefore that effect was considered negligible.
Comments on the Essential Features
Comment 6: One commenter requested that the phrase ``close
proximity'' in the description of the recruitment and developmental
habitat essential feature be expanded upon in the final rule to
increase public and federal agency awareness. The commenter also
provided a copy of a peer-reviewed publication (Blincow et al., 2020)
that could be used to inform movement and range estimates.
Response: In our description of the essential features, we proposed
to describe the intermediate hardbottom and seagrass areas in ``close
proximity'' to the nearshore shallow subtidal marine nursery areas, and
the offshore linear and patch reefs in ``close proximity'' to
intermediate hardbottom and seagrass areas. We use the term ``close
proximity'' to account for the high variability in habitat
configurations, oceanographic conditions, and the movement patterns of
individual Nassau grouper, which also vary across developmental stages,
rather than prescribe a particular distance. We find that this term
allows us to appropriately describe and include habitat components that
are needed and accessible to maturing individual groupers as they
recruit and progress to successive developmental stages and the bottom
types that support each stage of development and to exclude areas that
may have the prescribed bottom characteristics, but which are isolated
from areas that support other developmental stages. As per the
regulations for designating critical habitat (50 CFR 424.12) the
description outlined above is the appropriate level of specificity for
the essential feature based on the available information for this
species.
The peer-reviewed publication (Blincow et al., 2020) referenced by
the commenter demonstrates a clear variability in depth use by Nassau
grouper depending on the condition of the individual (i.e., the
relative health of the individual), but does not attempt to quantify
the extent of daily movements. In addition, the referenced publication
discusses movement patterns of Nassau grouper adults and does not
include the juveniles that were discussed in the recruitment and
developmental habitat essential feature. We therefore have retained the
term ``close proximity'' in the description of the recruitment and
development habitat essential feature as appropriate to prioritize the
proximity of progressive ontogenetic habitats rather than the range
movements of individual adults.
Comments on Critical Habitat Units
Comment 7: One commenter suggested that Florida Unit 1 be expanded
farther north, while Florida Units 3 and 4 be expanded to include areas
off of Boca Chica and Key West.
Response: The commenter did not provide any new supporting evidence
as to why the Florida units should be expanded beyond a slightly
different interpretation of the same maps that we considered. The areas
identified as critical habitat include the benthic types listed in the
recruitment and developmental habitat essential feature, as determined
by an analysis of the best available benthic maps, and the areas
suggested by the commenter do not include the necessary features.
Specifically, the areas included in Florida Units 1, 3, and 4 comprise
hard bottom habitat with a mosaic of benthic habitats including
pavement, seagrass, and carbonate sand and rubble. The areas adjacent
to these units that are suggested by the commenter do not include the
benthic types we specified for this essential feature, as the sites had
clear breaks of contiguous habitats (e.g., seagrass, colonized
hardbottom) that were discontinued at the specified critical habitat
boundaries and are therefore not designated as critical habitat.
Comment 8: One commenter requested the expansion of the critical
habitat designations around the oceanic islands of Desecheo, Mona, and
Monito, off the west coast of Puerto Rico, to include all platform
areas up to the 50 m (164 ft) depth contour. They provided peer-
reviewed scientific literature to support the assertion that the unique
characteristics of these islands require special consideration with
regards to habitat use by Nassau grouper.
Response: We agree with the commenter that these habitats should be
included in the critical habitat designation and as mentioned above in
the summary of changes, we have incorporated the suggestions into the
final rule, specifically in Puerto Rico Units 1 and 2. The commenter
provided ample scientific data, including years of monitoring data as
well as scientific observation, to indicate that Nassau grouper use the
platforms of these isolated islands differently than other insular
shelf areas. Oceanographic conditions in the Mona Passage cause a
biogeographic barrier that limits genetic connectivity on either side
of the barrier (Baums et al., 2006, Beltran et al., 2017, Taylor and
Hellberg, 2003), while promoting self-recruiting populations on the
islands within the channel (Olson et al., 2019). Due to the unique
nature of these oceanic islands (i.e., Mona, Monito, and Desecheo),
including the extreme bathymetric slope and limited availability of
shallow and nearshore habitats, the essential physical and biological
features associated with recruitment and developmental habitat are
found and used by all Nassau grouper life stages in benthic habitats
from the shoreline up to depths of 50 m (Aguilar-Perera et al., 2006,
Scharer, 2009, Garcia-Sais et al., 2017). We therefore determined that
the recruitment and developmental habitat essential feature was present
throughout these oceanic island shelf areas from the shoreline out to
depths of 50 m.
Comment 9: One commenter suggested that information was missing
from the Florida data analyses in that data from NOAA's National Coral
Reef Monitoring Program (NCRMP) diver surveys regarding the density of
Nassau grouper and their habitat use was not evaluated.
Response: The NCRMP dataset on fish communities, which is a subset
of the Coral Reef Information System, is a stationary point count
method to quantify fish diversity and abundance in coral reef
environments under U.S. jurisdictions. The dataset is extremely useful
to determine the presence or absence of a species, and therefore can be
extrapolated to answer questions about the range of a species and
habitat use. Evaluations of 23 years of NCRMP data (1999-2022)
indicated Nassau grouper utilize the following habitat types:
contiguous hardbottom, isolated patch reefs, spur and groove reef and
rubble. Nassau grouper densities were extremely low throughout their
range; however, the NCRMP data is consistent with the known range of
the species, and is therefore consistent with the critical habitat
designation. The dataset was therefore considered, but not incorporated
into the rule nor the supporting documentation, due to the limitations
of the data for the specific application of designating critical
habitat for an extremely rare species.
Comment 10: One commenter requested expanding the critical habitat
designation near the Dry Tortugas in Florida to include a feature known
as ``Riley's Hump'' as a potential spawning aggregation site, citing
the geomorphological features of the seamount as well as years of
continuous monitoring at the site where individuals were observed to
exhibit courting behavior, spawning color patterns, and
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sounds associated with spawning activity.
Response: We agree with the commenter regarding the inclusion of
Riley's Hump into the final ruling and have done so in the form of a
new unit in the final rule, titled ``Spawning Site Unit 3--Riley's
Hump.'' As the commenter points out, Riley's Hump is an extremely
productive multi-species spawning aggregation site. The Florida Fish
and Wildlife Research Institute has documented several grouper and
snapper species aggregating and spawning at Riley's Hump. Nassau
grouper have been observed among the fishes at these aggregation sites,
and these individuals have displayed spawning coloration, behaviors,
and sound production (Locascio and Burton, 2015). In addition, limited
surveys at Riley's Hump have documented substantially higher Nassau
grouper encounter rates (>66 percent of sample sites) as compared to
the rest of the Florida reef tract (<1 percent of sample sites). We
have concluded that Riley's Hump contains the spawning habitat
essential feature and consequently warrants inclusion in the critical
habitat designation due to the relatively higher density of Nassau
grouper at the site, multiple observations of individuals exhibiting
spawning behavior (including courtship coloration and sound production
associated with spawning activity), the presence of these individuals
at known spawning times, and the yearly reoccurrence of their presence.
Critical Habitat Identification and Designation
In the following sections, we describe the application of 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 critical habitat designation. In accordance with section 4(b)(2)
of the ESA, this 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 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
mapping. To identify specific areas that may qualify as critical
habitat for Nassau grouper, in accordance with 50 CFR 424.12(b), we
undertook the following steps: Identified the geographical area
occupied by the species at the time of listing; identified physical or
biological habitat features essential to the conservation of the
species; identified 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;
determined which of these essential features may require special
management considerations or protection; and evaluated whether any
specific areas outside the geographical area occupied by the species
are essential for the species' conservation. Our evaluations and
conclusions are described in detail in the following sections.
Geographical Area Occupied by the Species
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 groupers 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 130 m (426 feet). 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, in areas
north of Key West or the Tortugas, by red grouper (E. morio) (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 only 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 and targets 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 United States portion of the
Gulf of Mexico.
The range of the Nassau grouper spans the wider Caribbean, and
specifically the east coast of Florida including the Florida Keys,
Puerto Rico, and USVI in the United States (Hill and Sadovy de
Mitcheson, 2013). 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.
Physical and Biological Features Essential to Conservation
Within the geographical area occupied by the species, critical
habitat consists of specific areas on which are found physical or
biological features essential to the conservation of the species and
which may require special management considerations or protection (16
U.S.C. 1532(3). Features essential to the conservation of the species
are defined as features 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
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features. A feature may be a single habitat characteristic, or a more
complex combination of habitat characteristics. Features may include
habitat characteristics that support ephemeral or dynamic habitat
conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity (50 CFR 424.02).
To assess habitat features that are ``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. As noted previously, 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 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 the species' conservation. For
the Nassau grouper, critical habitat includes physical and biological
features to support adult reproduction at the spawning aggregations,
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 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 growth from larval
settlement in the nearshore to maturity, with appropriate inter-habitat
connectivity to support movement from nearshore habitat used for larval
settlement, to intermediate areas used by juveniles, and finally to
offshore areas used by adults. Observations at documented spawning
sites indicate that spawning aggregation sites are typically located
near the edge of an insular platform, often in areas that are close to
shore, yet also close to a deep-water drop-off. These sites are
generally small, some measuring several hundred meters in diameter, and
can contain a wide diversity of bottom types (Craig, 1966; Smith, 1990;
Beets and Friedlander, 1992; Colin, 1992; Aguilar-Perera, 1994). The
spawning habitat designated as critical habitat include the specific
sites used for spawning (i.e., where the fish aggregate and release
gametes into the water column) as well as any documented staging areas
(i.e., the areas used by adult Nassau grouper in between spawning
events) and known migration corridors between neighboring spawning
locations.
Within the habitats used by Nassau grouper as they progress through
their life history stages, we have identified the following essential
features, which remain unchanged from the proposed rule (87 FR 62930):
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 (>= 0.5 mm grain size, as per Wentworth 1922) 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.
Special Management Considerations or Protection
Specific areas within the geographical area occupied by a species
at the time of listing 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 defined as any ``methods or
procedures useful in protecting the physical or biological features
essential to the conservation of listed species'' (50 CFR 424.02).
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
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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 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). In addition to
the direct removal of individuals from their preferred habitats,
fishing activities can be destructive in nature and alter the essential
features of the habitat by physical impacts of weights, nets, lead
lines, and other gear types. 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 habitat 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. Pollution leading to significant
declines in water quality may render spawning locations unusable or
reduce adult or egg survival. Acoustic disturbances may also inhibit
spawning activity due to the acoustic cues used by the animal during
courtship and spawning behaviors. Further, because the spawning
aggregation sites are so discrete and rare, and the species'
reproduction depends on their use of these sites, the species is highly
vulnerable at these locations and loss of an aggregation site could
lead to significant population 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)). Our regulations
also require that each critical habitat area be shown on a map with
more-detailed information discussed in the preamble of the rulemaking
documents in the Federal Register, which will reference each area by
the State, county, or other local governmental unit in which it is
located (50 CFR 424.12(c)). In determining the appropriate boundaries
and mapping the specific areas of critical habitat, we relied on the
best available data as further described below and including the
Critical Habitat Report. 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
features. 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 (FWC) Unified Florida Reef Tract, the Nature Conservancy,
and NOAA to determine the contiguous areas of appropriate habitat
complexity that contain a combination of habitat characteristics
relevant to the essential features supporting Nassau grouper
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>.
These resources provide maps and information on the location of
habitat features important to Nassau grouper such as 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 and Nassau grouper conservation research experience,
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 were used for each geographic
location. For areas in Florida and the FGBNMS, we used contours created
from National Ocean Service Hydrographic Survey Data, NOAA ENCDirect
bathymetric point data, National Park Service (NPS) data, and NOAA's
Coastal Relief Model. For areas in Puerto Rico, we used contours
derived from the National Geophysical Data Center's (NGDC) 2005 U.S.
Coastal Relief Model. For areas in USVI, we used contours derived from
NOAA's 2004-2015 Bathymetric Compilation. For areas in Navassa, we used
contours 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 critical habitat designation. Twenty specific areas, or units, were
delineated based on these data, and are described later in this
document (see Occupied Critical Habitat Unit Descriptions).
Within the geographical and depth ranges of the species, certain
areas contain the appropriate substrates but, due to their consistently
disturbed nature, do not provide the quality of substrate, structure,
and often water quality, essential for the conservation of the
threatened Nassau grouper. These disturbances are caused by human
activities, such as dredging. While these areas may provide substrate
for recruitment and growth, the periodic nature of direct human
disturbance renders them unsuitable habitat to promote recruitment and
growth. 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 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
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active anchorages. These managed areas are not designated as critical
habitat.
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 such areas to be included as part of the
managed area and therefore are not designated as critical habitat.
GIS data of the locations of some managed areas were available and
extracted from the maps of the specific areas 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 designated as critical habitat, no managed
areas as defined above are part of the specific areas within the
geographical area occupied by the species that contain the essential
feature related to recruitment and development habitat (essential
feature 1).
Spawning site locations were identified and mapped based on a
review of relevant 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 to determine the areas relevant to the Nassau grouper spawning
habitat essential feature (essential feature 2). 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); 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); and Riley's Hump (waters
encompassing Riley's Hump located southwest of the Dry Tortugas out to
the 35 m isobath on the north, west, and east side of the hump and out
to the 50 m isobath on the south side of the hump). 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. In addition, continuous monitoring at Riley's Hump, Florida by
FWC indicates that Nassau grouper aggregate at the site during winter
months and display typical spawning behaviors.
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. An area must logically
be ``habitat'' in order for that area to meet the narrower category of
``critical habitat'' as defined in the ESA. Weyerhaeuser Co. v. U.S.
FWS, 139 S. Ct. 361, 368 (2018) (explaining that an area cannot be
designated as critical habitat unless it is also habitat for 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. As noted previously, we considered
these current regulatory requirements, as well as those in effect prior
to 2019 and the recently proposed revisions to 50 CFR 424.12(b)(2) (see
88 FR 40764, June 22, 2023). Although our analyses would differ with
regard to considering whether any unoccupied areas qualify as critical
habitat for Nassau grouper, our conclusions would be the same.
While the most serious threats to Nassau grouper are historical
overutilization, 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 can 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
designated critical habitat will help conservation of spawning areas
within U.S. jurisdiction. The critical habitat identified in this final
rule identifies key habitat necessary for promoting the recruitment,
refuge, forage, and spawning habitat necessary for the conservation of
the species. Based on our current understanding of the species' life
history, status, and conservation needs, we have not identified any
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 final rule from destruction and adverse
modification stemming from federal actions will help support the
species' habitat-based conservation needs.
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 determines in writing that such plan provides a benefit to
the species for which critical habitat is designated. Pursuant to our
regulations at 50 CFR 424.12(h), we consider the following when
determining whether such a benefit is provided:
(1) The extent of the area and features present;
(2) The type and frequency of use of the area by the species;
(3) The relevant elements of the INRMP in terms of management
objectives, activities covered, and best management practices, and the
certainty that the relevant elements will be implemented; and
(4) The degree to which the relevant elements of the INRMP will
protect the habitat from the types of effects that would be addressed
through a destruction-or-adverse-modification analysis.
NASKW is the only installation controlled by the DoD, specifically
the Department of the Navy (Navy) that coincides with any of the areas
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 identified as critical habitat is
approximately 800 acres (3.2 sq km). Within this area, the species and
the recruitment and developmental habitat essential feature 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 designated critical
habitat through the following NASKW broad programs and activities:
wetlands management,
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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, and 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 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 under
any circumstances.
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,
and 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, 1032 (9th Cir. 2015) (holding
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 section 4(b)(2) of the ESA (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 final
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 designating
each of the specific areas as critical habitat. We considered these
impacts when deciding whether to exercise our discretion to exclude
particular areas from designation. Both positive and negative impacts
were identified and considered (these terms are used interchangeably
with benefits and costs, respectively). Impacts were evaluated in
quantitative terms where feasible, but qualitative appraisals were used
where that 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 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 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
[[Page 142]]
section 7 consultation history from 2011 to 2021 for:
<bullet> Activities consulted on in the areas being designated as
critical habitat for the Nassau grouper and
<bullet> Activities that take place outside of the designated
critical habitat but whose effects extend into the critical habitat and
are therefore subject to consultation.
In addition, we conducted outreach to relevant agencies 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. Agencies
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
designated critical habitat area, including more recent consultation
information provided by these or other agencies prior to the
publication of this final rule. We determined all categories of the
activities identified have potential routes of effects to both the
threatened Nassau grouper and the designated Nassau grouper critical
habitat, or to other species or designated 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:
<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> Derelict Vessel 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.
Additionally, we considered the potential for oil and gas and
renewable energy development activities to damage the critical habitat
through various pathways in the Critical Habitat Report. These pathways
include, but are not limited to, physical damage to coral reefs and
colonized hardbottom by oil and gas platforms and ships and reduced
water quality resulting from increased sedimentation and turbidity
generated by oil and gas and renewable energy exploration and
development activities. We considered potential effects of oil spills
and USCG-led cleanup activities on the critical habitat in the section
more broadly discussing derelict vessel and marine debris removal.
There are no active oil and gas leases within the Straits of
Florida Planning Area, where the Florida units are located, and the
area is excluded from consideration for leasing for purposes of
exploration, development, or production through June 30, 2032. In
addition, neither Puerto Rico nor the USVI has any crude oil
production, refining, or proved reserves.
BOEM currently has no active offshore renewable energy leases in
Florida, and the section 7 consultation record revealed no historical
consultations related to renewable energy projects in Puerto Rico or
the USVI. While the current Administration has announced a goal to
deploy 17 gigawatts of offshore wind in the U.S. OCS by 2030, no
potential lease sites are located offshore of Florida's Atlantic coast.
A 2022 study published by the National Renewable Energy Laboratory
found that wind has the potential to lower the cost of energy in Puerto
Rico. However, the study excluded from consideration offshore wind
energy development in potential use conflict areas, including the
majority of waters comprising Nassau grouper critical habitat units
around Puerto Rico. In addition, the timing of development of offshore
wind energy projects in state and federal waters off of Puerto Rico is
uncertain, and no specific offshore wind energy projects or sites have
been identified for development. We therefore determined that no oil
and gas or renewable energy activity within or affecting Nassau grouper
critical habitat is anticipated over the next ten years.
Also, given the nearly complete overlap between Nassau grouper
critical habitat and existing critical habitat for acropora and 5
Caribbean corals,* other than the intracoastal zone of Biscayne Bay
(much of which is included in Biscayne National Park), any project
modifications required to avoid destruction or adverse modification of
Nassau grouper critical habitat by activities including, but not
limited to, those associated with oil and gas and renewable energy
development would likely already be required due to jeopardy/
destruction or adverse modification (DAM) determinations for listed
species and/or existing critical habitat. Thus, we would expect that
any potential incremental costs to oil and gas or renewable energy
activities attributable to Nassau grouper critical habitat would be
limited to the administrative costs of considering effects to the
critical habitat in consultations that would occur absent the
designation, and that Nassau grouper critical habitat would have
negligible effect on BOEM activities.
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* The exceptions are the Bajo de Sico spawning site unit and a
portion of the Grammanik Bank/Hind Bank spawning site in the U.S.
Caribbean, and Biscayne Bay in Florida.
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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. In the absence of other relevant
information regarding future federal activities, 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 section 10 of the Critical Habitat
Report, all categories of activities identified as having the potential
to affect the essential features also have the potential
[[Page 143]]
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
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 designation.
The incremental impacts that will be associated specifically with the
critical habitat designation are the difference between the two
scenarios. Baseline protections exist in large areas of the
designation. In particular, areas of Nassau grouper critical habitat
overlap to varying degrees with the presence of other threatened or
endangered species, including 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 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 Nassau
grouper critical habitat (please refer to Critical Habitat Report,
section 10). Therefore, 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 $13,000 for
programmatic, $6,400 for formal consultations, and $3,100 for informal
consultations (NMFS, 2023).
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
11 programmatic consultations, 11 formal consultations, and 114
informal consultations that will require incremental administrative
effort. Incremental costs are expected to total approximately $440,000
over the next 10 years (discounted at 7 percent), at an annualized cost
of $62,000. 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
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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 $440,000 over the next ten years ($62,000 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 if the DoD or USCG
were required to modify or delay their actions 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.
As described previously, we identified DoD military operations as a
category of activity that has the potential to affect the essential
features of the designated 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 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 (NMFS, 2023).
NMFS developed a conference opinion for USCG's ATON program (NMFS,
2023) that considered proposed Nassau grouper critical habitat. NMFS
anticipates adopting that conference opinion as the biological opinion
once this rule is finalized. As part of that process, NMFS will
consider whether and how changes in the final rule affect the
determination in the conference opinion; however, NMFS does not
anticipate USCG ATON actions in the additional areas designated in this
final rule will result in destruction or adverse modification of Nassau
grouper critical habitat in the action areas.
The Navy requested that NMFS exclude areas around Naval Air Station
Key West from the critical habitat designation under ESA section
4(b)(2). However, the Navy's 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 critical habitat designation: 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 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 final rule is not anticipated to result in
incremental project modifications. However, the inclusion of reefs and
seagrasses as subcomponents of an essential feature of Nassau grouper
critical habitat could increase awareness of the importance of these
habitat features, 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). 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. For example, it is estimated that the top 1 meter of
U.S. coral reefs prevents $2.6 billion in indirect economic effects
(Reguero et al., 2021) per year, while the total value of direct
economic effects has been estimated at roughly $1.7
[[Page 149]]
billion per year for reefs across Florida, Puerto Rico, and the U.S.
Virgin Islands (Brander and Van Beukering, 2013).
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 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. There are significant baseline protections that exist
in the areas we are designating as the Nassau grouper critical habitat,
and as a result, the incremental impacts of the 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 $440,000 over the next 10
years ($62,000 annualized), applying a discount rate of 7 percent.
Further, the analysis indicates that there is no particular area within
the designated critical habitat units where these costs would be highly
concentrated. Moreover, we anticipate that no particular industry would
be disproportionately impacted. We are not excluding any areas on the
basis of national security impacts as no national security concerns
exist related to the critical habitat designation. We are not excluding
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 excluding
any areas as a result of these other relevant impacts.
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 critical habitat
boundaries are defined by the maps in combination with the textual
information included in the 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 and Monito. Waters between the
shoreline out to the 50 m isobaths around Mona and Monito Islands. Area
= 30.65 sq. km.
Puerto Rico Unit 2--Desecheo Island. All waters between the
shoreline out to the 50 m isobaths around Desecheo Island. Area = 4.28
sq. km.
Puerto Rico Unit 3--Southwest. Waters off the southwest coast of
the Puerto Rico main island. Area = 112.39 sq. km.
Puerto Rico Unit 4--Northeast. Waters off the northeast coast of
the Puerto Rico main island. Area = 48.75 sq. km.
[[Page 150]]
Puerto Rico Unit 5--Vieques Island. Waters off the west and
northeast, east, and southeast coasts of the island. Area = 9.49 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 Culebrita Island. Area = 4.15 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 coasts of Water Island. Area = 9.18 sq. km.
United States Virgin Island Unit 2--St. John. Waters off the east
coast of St. John Island. Area = 6.55 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 = 1279.7 sq. km.
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 = 172.38 sq. km.
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 = 372.37 sq. km.
Florida Unit 4--Key West. Shoal waters south of Woman Key. Area =
127.09 sq. km.
Florida Unit 5--New Ground Shoal. New Ground Shoal waters. Area =
31.04 sq. km.
Florida Unit 6--Halfmoon Shoal. Halfmoon Shoal waters. Area = 33.62
sq. km.
Florida Unit 7--Dry Tortugas. Waters encompassing Loggerhead Key
and waters surrounding Garden Key and Bush Key. Area = 4.43 sq. km.
Spawning Site Unit 1--Bajo de Sico (Puerto Rico). All waters
encompassed by the 100 m isobath within the Bajo de Sico spawning area,
which we define here as being bounded by the following coordinates: A)
67[deg]26'13'' W, 18[deg]15'26'' N, B) 67[deg]23'08'' W, 18[deg]15'26''
N, C) 67[deg]23'08'' W, 18[deg]12'56'' N, and D) 67[deg]26'13'' W,
18[deg]12'56'' N. Area = 10.74 sq. km.
Spawning Site Unit 2--Grammanik Bank and Hind Bank (St. Thomas,
USVI). 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 = 59.69
sq. km.
Spawning Site Unit 3--Riley's Hump (Dry Tortugas, Florida). All
waters encompassing Riley's Hump at 83[deg]6'31'' W, 24[deg]29'42'' N
out to the 35 m isobath on the north, west, and east side of the hump,
extending out to the 50 m isobath on the south side of the hump to
include the escarpment on the southern face of the bank. Area = 15.35
sq. km.
Effects of Critical Habitat Designations
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to ensure that any action authorized, funded, or carried out by
the agency is not likely to jeopardize the continued existence of any
threatened or endangered species or destroy or adversely modify
designated critical habitat. Federal agencies are also required to
confer with NMFS regarding any actions likely to jeopardize the
continued existence of any species for listing under the ESA, or likely
to destroy or adversely modify 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 re-initiation of
consultation or conference with NMFS on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat or adversely modify or destroy proposed critical
habitat.
Activities subject to the ESA section 7 consultation process 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
[[Page 151]]
consultation when they are authorized, funded, or carried out by a
Federal agency. A private entity may also be affected by these critical
habitat designations if it is a proponent of a project that requires a
Federal permit or receives Federal funding. Categories of activities
that may be affected 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, derelict vessel 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.
Information Quality Act and Peer Review
The data and analyses supporting this action have undergone a pre-
dissemination review and have been determined to be in compliance with
applicable information quality guidelines implementing the Information
Quality Act (Section 515 of Pub. L. 106-554). On December 16, 2004, OMB
issued its Final Information Quality Bulletin for Peer Review
(Bulletin). The Bulletin was published in the Federal Register on
January 14, 2005 (70 FR 2664), and 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
final 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 used to draft this report and incorporated the peer review
comments into the draft Critical Habitat Report prior to dissemination
of the Final Critical Habitat Report and completion of this rule.
Comments received from peer reviewers are available on our website at
<a href="http://www.cio.noaa.gov/services_programs/prplans/ID346.html">http://www.cio.noaa.gov/services_programs/prplans/ID346.html</a>.
Classification
Takings (Executive Order 12630)
Under E.O. 12630, Federal agencies must consider the effects of
their actions on constitutionally protected private property rights and
avoid unnecessary takings of private property. A taking of property
includes actions that result in physical invasion or occupancy of
private property and regulations imposed on private property that
substantially affect its value or use. In accordance with E.O. 12630,
this final rule would not have significant takings implications. A
takings implication assessment is not required. These designations
would affect only Federal agency actions (i.e., those actions
authorized, funded, or carried out by Federal agencies). Therefore, the
critical habitat designations do not affect landowner actions that do
not require Federal funding or permits. We anticipate that the
designation of critical habitat for the Nassau grouper will result in
no section 7 consultations and no restrictions on federally permitted
landowner actions beyond those that would already be required due to
pre-existing protections to ESA-listed species and designated critical
habitat. The only incremental costs incurred by landowners would be
minor administrative costs associated with considering effects of the
action on Nassau grouper critical habitat in section 7 consultations
that would be required absent the designation. Thus, Nassau grouper
critical habitat is not expected to affect land values or use.
Regulatory Planning and Review (Executive Order 12866)
This rule has been determined to be significant for purposes of
E.O. 12866, as amended by Executive Order 14094. Executive Order 14094,
which amends E.O. 12866 and reaffirms the principles of E.O. 12866 and
E.O 13563, states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and be consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
Based on the economic impacts evaluation in the Critical Habitat
Report, total incremental costs resulting from the critical habitat are
approximately $440,000 over the next 10 years ($62,000 annualized),
applying a discount rate of 7 percent. These total impacts include the
additional administrative efforts necessary to consider critical
habitat in section 7 consultations. Overall, economic impacts are
expected to be small and to be largely associated with the
administrative costs borne by Federal agencies.
Federalism (Executive Order 13132)
Pursuant to the Executive Order on Federalism, E.O. 13132, we
determined that this final rule does not have significant federalism
effects and that a federalism assessment is not required. The
designation of critical habitat directly affects only the
responsibilities of Federal agencies. As a result, this rule does not
have substantial direct effects on the States or territories, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in E.O. 13132. State or local governments may
be indirectly affected by this critical habitat designation if they
require Federal funds or formal approval or authorization from a
Federal agency as a prerequisite to conducting an action. In these
cases, the State or local government agency may participate in the ESA
section 7
[[Page 152]]
consultation as a third party. One of the key conclusions of the
economic impact analysis is that the incremental impacts of the
critical habitat designation will likely be limited to additional
administrative costs to NMFS and Federal agencies stemming from the
need to consider impacts to critical habitat as part of the forecasted
section 7 consultations. The designation of critical habitat is not
expected to have substantial indirect impacts on State or local
governments.
Energy Supply, Distribution, and Use (Executive Order 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking an action expected to lead to the
promulgation of a final rule or regulation that is a significant
regulatory action under E.O. 12866 and is likely to have a significant
adverse effect on the supply, distribution, or use of energy. OMB
Guidance on Implementing E.O. 13211 (July 13, 2001) states that
significant adverse effects could include any of the following outcomes
compared to a world without the regulatory action under consideration:
(1) reductions in crude oil supply in excess of 10,000 barrels per day;
(2) reductions in fuel production in excess of 4,000 barrels per day;
(3) reductions in coal production in excess of 5 million tons per year;
(4) reductions in natural gas production in excess of 25 million cubic
feet per year; (5) reductions in electricity production in excess of 1
billion kilowatt-hours per year or in excess of 500 megawatts of
installed capacity; (6) increases in energy use required by the
regulatory action that exceed any of the thresholds above; (7)
increases in the cost of energy production in excess of 1 percent; (8)
increases in the cost of energy distribution in excess of 1 percent; or
(9) other similarly adverse outcomes. A regulatory action could also
have significant adverse effects if it: (1) adversely affects in a
material way the productivity, competition, or prices in the energy
sector; (2) adversely affects in a material way productivity,
competition or prices within a region; (3) creates a serious
inconsistency or otherwise interferes with an action taken or planned
by another agency regarding energy; or (4) raises novel legal or policy
issues adversely affecting the supply, distribution or use of energy
arising out of legal mandates, the President's priorities, or the
principles set forth in E.O. 12866 and 13211.
As discussed above and in the Critical Habitat Report, the critical
habitat designations are not expected to affect oil and gas or
renewable energy production. Therefore, this rule will not have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, we have not prepared a Statement of Energy Effects.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
We prepared a final regulatory flexibility analysis (FRFA) pursuant
to section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), as amended by the Small Business Regulatory Enforcement Fairness
Act (SBREFA) of 1996. The FRFA analyzes the impacts to small entities
that may be affected by the critical habitat designations, and is
included as Appendix B of the Critical Habitat Report (<a href="https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf">https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf</a>). We received no comments on our initial regulatory
flexibility analysis (IRFA). Results of the FRFA are summarized below.
Our FRFA 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) 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 critical habitat. Activities considered in the economic
analysis and the FRFA include in-water and coastal construction, water
quality management, protected area management, fishery management,
aquaculture, military, scientific research and monitoring, and derelict
vessel and marine debris removal. Based on the relevant consultation
history and forecast of future activities that may affect the
determined 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 designated 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 $4,221, which represents approximately 7 percent of the
total quantified incremental impacts forecasted to result from the
final rule. This estimate reflects incremental administrative costs,
such as written and verbal communication with NMFS and other Federal
action agencies, at a rate of $100/hour and ranging from approximately
1.5 hours providing technical assistance to approximately 10.25 hours
engaging in formal consultation (see Exhibit C.1 and accompanying text,
Summary of Estimated Impacts to Small Entities by Activity Type, in
Appendix C of the Critical Habitat Report, <a href="https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf">https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf</a>). 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 FRFA 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. Estimated annualized impacts for both scenarios
are calculated by multiplying the forecasted number of annual
consultations involving third parties by the administrative costs per
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consultation estimated to be borne by small entities. Absent specific
knowledge regarding the timing of future consultations involving third
parties, the FRFA further assumes under both scenarios that an equal
number of such consultations will occur each year over the next ten
years.
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 approximately 400 small entities participate
in the in-water and coastal construction industry (see Exhibit B-1 in
Appendix B of the Critical Habitat Report, <a href="https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf">https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf</a>), Scenario 1 accordingly reflects a high estimate of
the number of potentially affected small entities (6.4) and a low
estimate of the potential effect in terms of percent of revenue. The
assumption under Scenario 1 that 6.4 small entities will be subject to
consultation annually reflects the forecast that 6.4 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 units, because section 7
consultation on construction activities is anticipated to occur at a
rate of 0.8 per year, or eight consultations over 10 years, we assume
that 0.8 small entities will be impacted per year. Similarly, because
section 7 consultation on construction activities affecting the USVI
units is anticipated to occur at a rate of 0.8 per year, or eight
consultations over 10 years, we assume that 0.8 USVI-based 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 $4,221 in annualized costs under Scenario 1,
including $527 in costs to Florida-based small entities, $513 in costs
to Puerto Rico-based small entities, and $549 in costs to USVI-based
small entities. Annualized impacts of the rule are estimated to make up
less than 1 percent of average annual revenues of approximately $1.31
million for each affected small entity (see Exhibit B-1 in Appendix B
of the Critical Habitat Report, <a href="https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf">https://www.fisheries.noaa.gov/s3/2023-12/Nassau-grouper-critical-habitat-final-report.pdf</a>). This percentage
would be higher for a small entity with annual revenues lower than the
average of annual revenues of all potentially impacted small entities,
and lower for a small entity with annual revenues higher than the
average of annual revenues of all potentially impacted small entities.
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, $3,379 in annualized impacts
would be borne by a single small entity in Florida. We maintain the
assumption in Scenario 1 that 0.8 small entities per year bear the
third party costs of consultation in Puerto Rico and 0.8 small entities
per year bear the third party costs of consultation in USVI. This
assumption reflects our forecast of eight 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 and $549, respectively. 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. As
with Scenario 1, this percentage would be higher for a small entity
with annual revenues lower than the average of annual revenues of all
potentially impacted small entities, and lower for a small entity with
annual revenues higher than the average of annual revenues of all
potentially impacted small entities.
While these scenarios present a range of potentially affected
entities and the associated revenue effects in Florida, our analysis
demonstrates that the greatest potential revenue effect is less than 1
percent across scenarios and jurisdictions. Moreover, although we
cannot definitively determine the numbers of small and large entities
that may be affected by this final 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.
No Federal laws or regulations duplicate or conflict with this
final 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 coral critical
habitat with the areas designated as critical habitat protects the
essential features of the critical habitat to the extent that projects
or activities that may adversely affect the critical habitat also pose
a threat to the listed species or to coral 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 final 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 final rule
that would minimize significant economic impacts to small entities. We
considered the following alternatives when developing the final
critical habitat rule.
Alternative 1: No Action Alternative
Under this status quo alternative, we would not designate critical
habitat for
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the Nassau grouper. 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 species provides 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, because the ESA requires designation of critical
habitat to the maximum extent prudent and determinable, and in this
case critical habitat is both prudent and determinable, 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
off the Riley's Hump, Bajo de Sico, 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 Critical
Habitat 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
designated critical habitat. However, due to the protections afforded
the essential features of the designated 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). Also, as
noted above, Alternative 1, would fail to meet statutory requirements
for designation of critical habitat; and, as described below,
Alternative 3, would not adequately reflect the best available science
and our consideration of economic impacts.
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 Federal
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 final
rule to small entities without incrementally promoting conservation of
the species.
In the final rule, we selected Alternative 2 because it provides
for the conservation of the species while reducing the economic,
national security, and other relevant impacts on affected entities.
Coastal Zone Management Act
We have determined that this action will have no reasonably
foreseeable effects on the enforceable policies of approved coastal
zone management plans in Florida, Puerto Rico, and USVI.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new or revised collection of
information requirements. This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. Therefore, the Paperwork Reduction Act
does not apply.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
This rule will not produce a Federal mandate. The designation of
critical habitat does not impose a legally-binding duty on non-Federal
government entities or private parties. The only regulatory effect is
that Federal agencies must ensure that their actions are not likely to
destroy or adversely modify critical habitat under section 7 of the
ESA. Non-Federal entities that receive Federal funding, assistance,
permits or otherwise require approval or authorization from a Federal
agency for an action may be indirectly impacted by the designation of
critical habitat, but the Federal agency has the legally binding duty
to avoid destruction or adverse modification of critical habitat. We do
not anticipate that this rule will significantly or uniquely affect
small governments. Therefore, a Small Government Action Plan is not
required.
Consultation and Coordination With Indian Tribal Governments (Executive
Order 13175)
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal government.
This relationship has given rise to a special Federal trust
responsibility involving the legal responsibilities and obligations of
the United States toward Indian Tribes and with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights.
Pursuant to these authorities, lands have been
[[Page 155]]
retained by Indian Tribes or have been set aside for tribal use. These
lands are managed by Indian Tribes in accordance with tribal goals and
objectives within the framework of applicable treaties and laws.
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, outlines the responsibilities of the Federal government in
matters affecting tribal interests.
In developing this rule, we reviewed maps and did not identify any
areas designated as critical habitat that overlap with tribal lands,
nor do we anticipate impacts on tribal fisheries as a result of these
critical habitat designations. Based on this, we found the critical
habitat designations for Nassau grouper do not have tribal
implications.
Environmental Justice and Racial Equity (E.O.s 12898, 14096, 14019,
13985)
The designation of critical habitat is not expected to have a
disproportionately high effect on minority populations or low-income
populations. The purpose of this rule is to protect and conserve ESA-
listed species through the designation of critical habitat and is
expected to help promote a healthy environment; thus, we do not
anticipate minority populations or low-income populations to experience
disproportionate and adverse human health or environmental burdens. The
designation of critical habitat is not expected to disproportionately
affect minority populations, low-income populations, or populations
otherwise adversely affected by persistent poverty or inequality.
Further, it is not expected to create any barriers to opportunity for
underserved communities. The proposed rule was widely distrusted,
including to the affected States and territorial governments. We did
not receive any public comment suggesting the designation would result
in effects these communities.
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.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NOAA amends 50 CFR parts
223 and 226 as follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
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 under the ``Fishes'' subheading for ``Grouper, Nassau'' to read
as follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
(e) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
--------------------------------------------------------------------------------------- Citation(s) for listing
Description of listed determination(s) Critical habitat ESA rules
Common name Scientific name entity
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Grouper, Nassau..................... Epinephelus striatus... Entire species......... 81 FR 42268, June 29, [Insert 226.231]...... NA
2016.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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. 226.231 to read as follows:
Sec. 226.231 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 and Monito--All waters
surrounding the islands of Mona and Monito from the shoreline to the 50
m isobath.
(3) Puerto Rico Unit 2--Desecheo Island--All waters surrounding the
island of Desecheo from the shoreline to the 50 m isobath.
(4) Puerto Rico Unit 3--Southwest--All waters from the southwestern
shoreline of Puerto Rico, between Playa Tres Tubos just south Mayaguez
and Punta Ballena in Guanica, extending offshore to depths of about 10
m 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
[[Page 156]]
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 States 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 States 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 20 m 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 100 m 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.
(20) Spawning Site Unit 3--Riley's Hump--All waters encompassing
Riley's Hump located southwest of the Dry Tortugas out to the 35 m
isobath on the north, west, and east side of the hump and out to the 50
m isobath on the south side of the hump.
(b) Essential features. The features essential to the conservation
of Nassau grouper 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 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,
octocor
[…truncated; see source link]Indexed from Federal Register on January 2, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.