Endangered and Threatened Species; Critical Habitat for Threatened Elkhorn and Staghorn Corals, 72210-72240 [E8-27748]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 72210-72240]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27748]



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Part V





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; Critical Habitat for Threatened 
Elkhorn and Staghorn Corals; Final Rule

Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No. 070801431-81370-02]
RIN 0648-AV35


Endangered and Threatened Species; Critical Habitat for 
Threatened Elkhorn and Staghorn Corals

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

ACTION: Final rule.

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SUMMARY:  We, the National Marine Fisheries Service (NMFS), issue a 
final rule designating critical habitat for elkhorn (Acropora palmata) 
and staghorn (A. cervicornis) corals, which we listed as threatened 
under the Endangered Species Act of 1973, as amended (ESA), on May 9, 
2006. Four specific areas are designated: the Florida area, which 
comprises approximately 1,329 square miles (3,442 sq km) of marine 
habitat; the Puerto Rico area, which comprises approximately 1,383 
square miles (3,582 sq km) of marine habitat; the St. John/St. Thomas 
area, which comprises approximately 121 square miles (313 sq km) of 
marine habitat; and the St. Croix area, which comprises approximately 
126 square miles (326 sq km) of marine habitat. We are excluding one 
military site, comprising approximately 5.5 square miles (14.3 sq km), 
because of national security impacts.

DATES:  This rule becomes effective December 26, 2008.

ADDRESSES: The final rule, maps, Final Regulatory Flexibility Analysis, 
and 4(b)(2) Report used in preparation of this final rule, as well as 
comments and information received, are available on the NMFS Southeast 
Regional website at https://www.sero.noaa.gov/.

FOR FURTHER INFORMATION CONTACT:  Jennifer Moore or Sarah Heberling, 
NMFS, at the address above or at 727-824-5312; or Marta Nammack, NMFS, 
at 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On May 9, 2006, we listed elkhorn and staghorn corals as threatened 
under the ESA (71 FR 26852; May 9, 2006). At the time of listing, we 
also announced our intention to propose critical habitat for elkhorn 
and staghorn corals. Critical habitat for both elkhorn and staghorn 
corals was proposed on February 6, 2008 (73 FR 6895); a correction 
notice regarding one of the maps was published on March 6, 2008 (73 FR 
12068). We solicited comments from the public on all aspects of the 
proposed rule. An initial regulatory flexibility analysis (IRFA) and a 
draft impacts report prepared pursuant to section 4(b)(2) of the ESA 
were available for public review and comment along with the proposed 
rule. These documents have been finalized in support of the final 
critical habitat designation.
    The proposed rule identified the key conservation objective for the 
corals as facilitating increased incidence of successful sexual and 
asexual reproduction. We determined the feature essential to the 
conservation of the species (also known as essential feature), which 
supports the identified conservation objective, was substrate of 
suitable quality and availability, in water depths from the mean high 
water (MHW) line to 30 m, to support successful larval settlement, 
recruitment, and reattachment of fragments. For purposes of this 
definition, ``substrate of suitable quality and availability'' meant 
consolidated hardbottom or dead coral skeleton that is free from fleshy 
macroalgae cover and sediment cover. We proposed to designate four 
specific areas that contain the essential feature: (1) the Florida 
area, which comprised approximately 3,301 square miles (8,550 sq km) of 
marine habitat; the Puerto Rico area, which comprised approximately 
1,383 square miles (3,582 sq km) of marine habitat; the St. John/St. 
Thomas area, which comprised approximately 121 square miles (313 sq km) 
of marine habitat; and the St. Croix area, which comprised 
approximately 126 square miles (326 sq km) of marine habitat. We also 
proposed to exclude one military site, comprising approximately 47 
square miles (123 sq km), because of national security impacts.

Elkhorn and Staghorn Coral Natural History

    The following discussion of the life history and reproductive 
biology of threatened corals is based on the best scientific data 
available, including the Atlantic Acropora Status Review Report 
(Acropora Biological Review Team, 2005), and additional information, 
particularly concerning the genetics of these corals.
    Acropora spp. are widely distributed throughout the Caribbean (U.S. 
- Florida, Puerto Rico, U.S. Virgin Islands (U.S.V.I.), Navassa; and 
Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, British Virgin 
Islands, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, 
Grenada, Guadeloupe, Haiti, Honduras, Jamaica, Martinique, Mexico, 
Netherlands Antilles, Nicaragua, Panama, St. Kitts and Nevis, St. 
Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and 
Venezuela). In general, elkhorn and staghorn corals have the same 
geographic distribution, with a few exceptions. The maximum northern 
extent (Palm Beach County, Florida) of staghorn coral occurrence is 
farther north than that of elkhorn coral (Broward County, Florida). 
Staghorn coral commonly grows in more protected, deeper water ranging 
from 5 to 20 m in depth and has been found in rare instances to 60 m. 
Elkhorn coral commonly grows in turbulent shallow water on the seaward 
face of reefs in water ranging from 1 to 5 m in depth but has been 
found to 30 m depth.
    Elkhorn and staghorn corals were once the most abundant and most 
important species on Caribbean coral reefs in terms of accretion of 
reef structure. Relative to other corals, elkhorn and staghorn corals 
have high growth rates that have allowed reef growth to keep pace with 
past changes in sea level. Both species exhibit branching morphologies 
that provide important habitat for other reef organisms. Environmental 
influences (e.g., wave action, currents) result in morphological 
variation (e.g., length and shape of branches) in both species.
    Staghorn coral is characterized by staghorn antler-like colonies 
with cylindrical, straight, or slightly curved branches. The diameter 
of staghorn coral branches ranges from 1 to 4 cm, and tissue color 
ranges from golden yellow to medium brown. The growing tips of staghorn 
coral tend to be lighter or lack color. The linear growth rate for 
staghorn coral has been reported to range from 3 to 11.5 cm/year. 
Today, staghorn coral colonies typically exist as isolated branches and 
small thickets, 0.5 to 1 m across in size, unlike the vast fields 
(thickets) of staghorn found commonly during the 1970s.
    Elkhorn coral is the larger species of Acropora found in the 
Atlantic. Colonies are flattened to near round with frond-like 
branches. Branches are up to 50 cm across and range in thickness from 2 
to 10 cm, tapering towards the branch terminal. Like staghorn coral, 
branches are white near the growing tip, and brown to tan away from the 
growing area. The linear growth rate for elkhorn coral is reported to 
range from 4 to 11 cm/year. Individual colonies can grow to at least 2 
m in height and 4 m in diameter.
    Elkhorn and staghorn corals require relatively clear, well-
circulated water

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and are almost entirely dependent upon sunlight for nourishment through 
the photosynthetic products of their symbiotic zooxanthellae. Unlike 
other coral species, neither acroporid species is likely to compensate 
for long-term reductions in water clarity with alternate food sources, 
such as zooplankton and suspended particulate matter. Typical water 
temperatures in which Acropora spp. occur range from 21[deg] to 29[deg] 
C, with the species being able to tolerate temperatures higher than the 
seasonal maximum for a brief period of time (days to weeks, depending 
on the magnitude of the temperature elevation). The species' response 
to temperature perturbations is dependent on the duration and intensity 
of the event. Both acroporids are susceptible to bleaching (loss of 
symbiotic algae) under adverse environmental conditions.
    Acropora spp. reproduce both sexually and asexually. Elkhorn and 
staghorn corals do not differ substantially in their sexual 
reproductive biology. Both species are broadcast spawners: male and 
female gametes are released into the water column where fertilization 
takes place. Additionally, both species are simultaneous 
hermaphrodites, meaning that a given colony will contain both male and 
female reproductive parts during the spawning season; however, an 
individual colony or clone will not produce viable offspring. The 
spawning season for elkhorn and staghorn corals is relatively short, 
with gametes released on only a few nights during July, August, or 
September. In most populations, spawning is synchronous after the full 
moon during any of these 3 months. Larger colonies of elkhorn and 
staghorn corals have much higher fecundity rates (Soong and Lang, 
1992).
    In elkhorn and staghorn corals, fertilization and development is 
exclusively external. Embryonic development culminates with the 
development of planktonic larvae called planulae. Little is known 
concerning the settlement patterns of planula of elkhorn and staghorn 
corals. In general, upon proper stimulation, coral larvae, whether 
released from parental colonies or developed in the water column 
external to the parental colonies (like Acropora spp.), settle and 
metamorphose on appropriate substrates. Like most corals, elkhorn and 
staghorn corals require hard, consolidated substrate, including 
attached, dead coral skeleton, for their larvae to settle. Unlike most 
other coral larvae, elkhorn (and presumably staghorn) planulae appear 
to prefer settling on upper, exposed surfaces, rather than in dark, 
cryptic ones, at least in a laboratory setting (Szmant and Miller, 
2005).
    Coral planula larvae experience considerable mortality (90 percent 
or more) from predation or other factors prior to settlement and 
metamorphosis (Goreau et al., 1981). Because newly settled corals 
barely protrude above the substrate, juveniles need to reach a certain 
size to reduce damage or mortality from impacts such as grazing, 
sediment burial, and algal overgrowth. It is at this size 
(approximately 1 cm in diameter) and this age (approximately 1 year) 
that a settled individual can be considered to have recruited into the 
population. Recent studies examining early survivorship indicated that 
lab cultured elkhorn coral settled onto experimental limestone plates 
and placed in the field had substantially higher survivorship than 
another spawning coral species, Montastraea faveolata, and similar 
survivorship to brooding coral species (species that retain developing 
larvae within the parent polyp until an advanced stage) over the first 
9 months following settlement (Szmant and Miller, 2005). This pattern 
corresponds to the size of planulae; elkhorn coral eggs and larvae are 
much larger than those of Montastraea spp. Overall, older recruits 
(i.e., those that survive to a size where they are visible to the human 
eye, probably 1 to 2 years post-settlement) of Acropora spp. appear to 
have similar growth and post-settlement mortality rates observed in 
other coral species.
    Studies of Acropora spp. sexual recruitment from across the 
Caribbean reveal two problematic patterns: (1) low juvenile densities 
relative to other coral species; and (2) low juvenile densities 
relative to the commonness of adults (Porter, 1987). This suggests that 
the composition of the adult population is based upon variable 
recruitment. To date, the settlement rates for Acropora spp. have not 
been quantified.
    Few data on the genetic population structure of elkhorn and 
staghorn corals exist; however, due to recent advances in technology, 
the genetic population structure of the current, depleted populations 
are beginning to be characterized. Baums et al. (2005) examined the 
genetic exchange in elkhorn coral by sampling and genotyping colonies 
from eleven locations throughout its geographic range using 
microsatellite markers. Results indicate that elkhorn populations in 
the eastern Caribbean (St. Vincent and the Grenadines, U.S.V.I., 
Curacao, and Bonaire) have experienced little or no genetic exchange 
with populations in the western Caribbean (Bahamas, Florida, Mexico, 
Panama, Navassa, and Mona Island). Mainland Puerto Rico is an area of 
mixing where elkhorn populations show genetic contribution from both 
regions, though it is more closely connected with the western 
Caribbean. Within these regions, the degree of larval exchange appears 
to be asymmetrical, with some locations being entirely self-recruiting 
and some receiving immigrants from other locations within their region.
    Vollmer and Palumbi (2007) examined multilocus sequence data from 
276 colonies of staghorn coral spread across 22 populations from 9 
regions in the Caribbean, Florida, and the Bahamas. Their data were 
consistent with the Western-Eastern Caribbean subdivision observed in 
elkhorn coral populations by Baums et al. (2005). Additionally, the 
data indicated that regional populations of staghorn separated by 
greater than 500 km are genetically differentiated and that gene flow 
across the greater Caribbean is low in staghorn coral. This is 
consistent with studies conducted on other Caribbean corals showing 
that gene flow is restricted at spatial scales over 500 km (Fukami et 
al., 2004; Baums et al., 2005; Brazeau et al., 2005). Furthermore, 
fine-scale genetic differences were observed among reefs separated by 
as little as 2 km, suggesting that gene flow in staghorn corals may be 
limited over much smaller spatial scales (Vollmer and Palumbi, 2007).
    Both acroporid population genetics studies suggest that no 
population is more or less significant to the status of the species. 
Staghorn coral populations on one reef exhibit limited ability to seed 
another population separated by large distances. Elkhorn coral 
populations are genetically related over larger geographic distances; 
however, because sexual recruitment levels are extremely low, re-
seeding potential over long distances is also minimal. This regional 
population structure suggests that conservation should be implemented 
at local to regional scales because relying on long-distance larval 
dispersal as a means of recovery may be unreliable and infeasible. 
Therefore, protecting source populations, in relatively close proximity 
to each other (<500 km), is likely the more effective conservation 
alternative (Vollmer and Palumbi, 2007).
    Elkhorn and staghorn corals, like most coral species, also 
reproduce asexually. Asexual reproduction involves fragmentation, 
wherein colony pieces or fragments break from a larger colony and re-
attach to consolidated, hard substrate to form a new colony.

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Reattachment occurs when: (1) live coral tissue on the fragment 
overgrows suitable substrate where it touches after falling; or (2) 
encrusting organisms settle on the dead basal areas of the fragment and 
cement it to the adjacent substrate (Tunnicliffe, 1981). Fragmentation 
results in multiple colonies (ramets) that are genetically identical, 
while sexual reproduction results in the creation of new genotypes 
(genets). Fragmentation is the most common means of forming new elkhorn 
and staghorn coral colonies in most populations and plays a major role 
in maintaining local populations when sexual recruitment is limited. 
The larger size of fragments compared to planulae may result in higher 
survivorship after recruitment (Jackson, 1977, as cited by Lirman, 
2000). Also, unlike sexual reproduction, which is restricted seasonally 
for elkhorn coral (Szmant, 1986, as cited by Lirman, 2000), 
fragmentation can take place year-round.

Summary of Comments and Responses

    We requested comments on the proposed rule to designate critical 
habitat for elkhorn and staghorn corals (73 FR 6895; February 6, 2008). 
To facilitate public participation, the proposed rule was made 
available on our regional web page and comments were accepted via 
standard mail, facsimile, and through the Federal eRulemaking portal. 
In addition to the proposed rule, the draft impacts report supporting 
NMFS' conclusions under Section 4(b)(2) of the ESA was posted. We 
obtained independent peer review of both the scientific information and 
of the Draft 4(b)(2) Report (NMFS, 2007) that supported the proposed 
rule, and we incorporated the peer review comments prior to 
dissemination of the proposed rule. Four public hearings were held on 
the following dates and in the following locations:
    1. Tuesday, March 4, 2008, Dania Beach, Florida.
    2. Wednesday, March 5, 2008, Marathon, Florida.
    3. Tuesday, March 11, 2008, St. Thomas, U.S.V.I./Simulcast Location 
in Kingshill, St. Croix, U.S.V.I.
    4. Wednesday, March 12, 2008, Rio Piedras, Puerto Rico.
    We have considered all public comments, and those that are germane 
to the proposed designation are addressed in the following summary. We 
have assigned comments to major issue categories and, where 
appropriate, have combined similar comments.

Comments on the Conservation Goal of the Designation

    Comment 1: One commenter suggested that the conservation goal of 
the critical habitat designation should include survival to juvenile 
sizes.
    Response: We stated in the proposed designation that the essential 
feature supports successful larval settlement, recruitment, and 
reattachment of fragments. The species' larvae and newly settled spat 
are microscopic. It takes approximately 1 year from the time of 
settlement for the recruit to become visible to the unaided human eye. 
It is at this point that we can conclude that the offspring has 
recruited into the population. Therefore, the habitat must be suitable 
to allow for the offspring to reach this size. It is unclear what the 
commenter specifically considers as a juvenile, thus we clarify that 
the conservation goal does include survival to recruitment.
    Comment 2: One commenter suggested that we do not know what caused 
the decline of the species; therefore, we cannot identify the essential 
feature for elkhorn and staghorn corals. Another commenter questioned 
the utility of critical habitat, given the seemingly unresolved major 
threats to the species.
    Response: The status review, listing process, and supporting 
literature have identified several causes of the decline of the 
species. We determined that disease, temperature-induced bleaching, and 
hurricanes are the major threats to the species. The ESA and our 
regulations for designating critical habitat (50 CFR 424) specify that 
we focus on the essential physical or biological features to support 
the species' conservation. We determined that the identified essential 
feature of suitable settlement and reattachment substrate will support 
the key conservation objective for both species of facilitating 
increased incidence of successful sexual and asexual reproduction.
    Comment 3: One commenter said that, although we identified the 
conservation goal of critical habitat to be the enhancement of sexual 
and asexual recruitment, our rule focuses on sexual recruitment.
    Response: We determined, based on the species' natural history and 
the threats facing them, that facilitating increased incidence of 
successful reproduction, both sexual and asexual, is the key objective 
to the conservation of these species. We stated in the proposed rule 
that the feature supporting this objective was `` substrate of suitable 
quality and availability to support successful larval settlement, 
recruitment, and reattachment of fragments.'' We realize that the 
placement of the conjunction ``and'' may have misled the reader that 
the conservation objective did not support the recruitment of 
fragments. We are revising the definition of the feature that supports 
this objective to clarify this point. The feature is now defined as 
substrate of suitable quality and availability to support successful 
larval settlement and recruitment and the reattachment and recruitment 
of fragments. Sexual recruits and asexual recruits require the same 
feature to allow for settlement or reattachment, respectively. 
Therefore, the designation does not focus on sexual recruitment alone; 
rather, we state that increasing the incidence of both modes of 
reproduction is essential to the conservation of the species.

Comments on the Definition of the Essential Feature

    Comment 4: One commenter stated we failed to appropriately define 
``consolidated hardbottom'' in our definition of the essential feature. 
A second commenter stated that we should not use the term hardbottom, 
rather the more appropriate term would be hard substrate.
    Response: We acknowledge the need to define these terms precisely 
as there are several definitions of the term hardbottom. The 
established definition of hardbottom for the NOAA Coral Reef 
Conservation Program is substrate formed by the deposition of calcium 
carbonate by reef building corals and other organisms, or existing as 
bedrock or volcanic rock usually of minimal relief (https://
www.coris.noaa.gov/glossary). This definition is more restrictive than 
what we intended for this designation; so we are revising the term 
``hardbottom'' to ``hard substrate,'' as suggested by the second 
commenter, to be inclusive of all the suitable substrate within the 
designation that is essential to the conservation of the species. We 
are retaining the term ``consolidated'' in the definition of the 
essential feature because the hard substrate must be stable to support 
the conservation objective. A disaggregated hard substrate, such as 
loose rubble, which can become mobilized and abrade the recruits, would 
not be of suitable quality.
    Comment 5: One commenter stated we needed to clarify that absence 
of macroalgal cover in our definition of ``suitable substrate'' does 
not mean absence of crustose coralline algae (CCA), but refers to 
macroalgae and turf algae.

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    Response: The commenter is correct: we are not referring to CCA in 
this instance. Further, as we discussed in the proposed rule, studies 
have shown that larvae tend to prefer substrate covered with CCA for 
settlement. The commenter also correctly pointed out that not only 
fleshy macroalgae, but also turf algae, prevent the settlement of 
larvae and the reattachment of fragments. Therefore, we are adding the 
word ``turf'' to the definition of the essential feature.
    Comment 6: Several commenters stated that no reefs exist without 
macroalgae and sediment; thus no reef would meet the identified 
definition of critical habitat. One commenter added that conditions 
change over time and we should add the word ``persistent'' before 
``fleshy macroalgae''.
    Response: Coral reef ecosystems are a mosaic of several different 
substrate types, including consolidated hard substrate, macroalgae, 
unconsolidated sediment, and seagrass. Although few reefs exist that 
are wholly lacking in some macroalgae or sediment cover, at a scale 
appropriate to a coral larva or coral fragment, a reef must contain 
available hard substrate for the settlement, attachment, and 
recruitment. Without the available substrate, the area would cease to 
be a coral reef because reef accretion would not be possible. The 
identified essential feature is contained within the specific areas 
identified as critical habitat. It is not necessary for the entire area 
or even entire reef to be lacking in macroalgae to designate it as 
critical habitat.
    Regarding the persistence of the essential feature, we acknowledge 
that conditions within the reef ecosystem may change over time. 
However, regardless of the persistence of the macroalgae, if the 
substrate is covered with macroalgae at the time of potential 
settlement, reattachment, and recruitment, the substrate would not be 
of suitable availability to support the conservation objective. Thus we 
are not revising the definition of the essential feature to include the 
word ``persistent.
    Comment 7: One commenter requested reef covered with macroalgae not 
be exempted from critical habitat.
    Response: Reefs that contain macroalgae are not exempted from 
critical habitat. While neither coral larvae nor coral fragments can 
attach to substrate that is covered with macroalgae, and substrate 
covered with macroalgae does not provide substrate of suitable 
availability to support the conservation of the species, when these 
areas are part of the coral reef ecosystem meeting the definition of 
critical habitat (which as explained above consists of a mosaic of 
several different substrate types, including consolidated hard 
substrate, macroalgae, unconsolidated sediment, and seagrass), they are 
not exempted from the designation.
    Comment 8: One commenter stated that parrotfish, other herbivorous 
fishes, and long-spined sea urchin are biological features essential to 
the conservation of listed corals (i.e., essential features) because 
these herbivores reduce the abundance of macroalgae through grazing.
    Response: In the proposed rule, we acknowledged that the shift in 
benthic community structure from the dominance of stony corals to 
fleshy algae on Caribbean coral reefs is generally attributed to the 
greater persistence of fleshy macroalgae under reduced grazing regimes 
due to human overexploitation of herbivorous fishes (Hughes, 1994) and 
the regional mass mortality of the herbivorous long-spined sea urchin 
in 1983-84. However, the herbivores themselves are not the essential 
feature for elkhorn and staghorn corals. Rather, herbivores mediate the 
availability of the essential feature, similar to the effect nutrients 
have on the growth of macroalgae.
    Comment 9: One commenter suggested ``consolidated hardbottom or 
dead coral skeletons exposed to sunlight, free from sediment, not 
preempted by other attached organisms, and within 30 m of the water 
surface'' as an alternate way to define the essential feature to make 
the rule more easily understood.
    Response: We believe that our definition encompasses the concepts 
in the suggested alternative definition. We do not explicitly state 
that the substrate must be exposed to sunlight, because only artificial 
structures (e.g., docks or bridges) would preempt the transmission of 
sunlight to the substrate, given the shallow depths of the areas 
included in the designation. As discussed in the response to Comment 
13, existing federally authorized or permitted man-made structures do 
not provide the essential feature. Thus, all natural consolidated hard 
substrate in depths less than 30 m are likely exposed to some sunlight. 
We define the essential feature as being free from fleshy or turf 
macroalgae cover, rather than all attached organisms because algae in 
excessive abundances preempts larva and fragments from attachment and 
recruitment. No other species is known to be susceptible to 
proliferation that results in the preemption of substrate. Other reef 
organisms are naturally occurring and do not necessarily interfere with 
settlement, recruitment, or reattachment of elkhorn and staghorn 
corals. Therefore, we believe our definition is sufficient to describe 
the essential feature for elkhorn and staghorn corals' conservation.
    Comment 10: Two commenters requested the essential feature also 
include any habitat that could be recovered or rehabilitated.
    Response: ESA Section 4(a)(3)(i) defines critical habitat, in part, 
as occupied areas that contain features essential to a species' 
conservation. We do not have the authority to designate areas where 
features may exist in the future once habitat is recovered or 
rehabilitated.
    Comment 11: Several commenters stated that the proposed designation 
fails to account for essential features other than suitable substrate 
and specifically suggested that we add ``suitable water quality and 
temperature'' as essential features. Some of these commenters pointed 
to statements in the Status Review for the two corals that noted these 
species' need for ``relatively clear, well-circulated water,'' 
``sunlight for nourishment,'' ``optimal water temperature,'' and ``near 
oceanic salinities.'' Some of the commenters went on to state that the 
combined stresses of warmer temperatures, rising sea levels, and ocean 
acidification should be considered as part of the corals' need for good 
water quality in the critical habitat designation.
    Response: We stated in the Status Review that the species' general 
environmental requirements are those summarized by the commenter. As 
stated in the proposed critical habitat rule, other than the substrate 
feature, we determined that no other facet of the corals' environment 
is appropriate to include as a basis for the critical habitat 
designation. Rather, we determined that water temperature and aspects 
of water quality are more appropriately viewed as sources of impacts or 
stressors that can harm the corals directly. For example, the corals 
can survive a range of water temperatures, and they exhibit stress at 
temperatures above and below this range. Similarly, corals exist and 
function within a range of oceanic acidity levels; if the water becomes 
too acidic or too alkaline, conditions are unsuitable for secretion of 
an aragonitic skeleton. However, for elkhorn and staghorn corals, we 
cannot identify any specific values, ranges, or thresholds for these or 
other water quality parameters that make them essential to the 
conservation of these corals. Consultations on whether a proposed 
action may affect ``suitable water quality or temperature'' would 
necessarily be limited to determining whether the

[[Page 72214]]

activity would cause harm to the corals, and only provides for analysis 
under the jeopardy prong. We therefore did not adopt the suggestion to 
include ``suitable water quality and temperature'' as essential 
features. Finally, we stated in the proposed rule that some 
environmental features are subsumed within the definition of the 
substrate essential feature. In this final rule, we define ``substrate 
of suitable quality and availability'' as ``consolidated hard substrate 
or dead coral skeleton that is free from fleshy or turf macroalgae 
cover and sediment cover.'' Substrate free from macroalgae cover and 
sediment cover would encompass water quality sufficiently free of 
nutrients and sediments. Therefore, Federal activities that impact 
water quality by increasing nutrients or sediments may affect the 
essential substrate feature, and would require ESA section 7 
consultation.
    Comment 12: One commenter stated that, in identifying the example 
list of existing man-made structures that do not provide the essential 
feature, the proposed rule lacked clarity in its description of 
maintained channels. The commenter requested that we provide an 
adequate description of what is considered to be a maintained channel 
(e.g., would it include channel floor, channel walls and any authorized 
structures associated with the channel like jetties and groins?).
    Response: In identifying existing man-made structures that do not 
provide the essential feature essential to the corals' conservation, 
our intention was to inform the public that Federal actions, or the 
effects thereof, limited to these areas would not trigger section 7 
consultation under the ESA, unless they may affect the species and/or 
the essential feature in adjacent critical habitat. In the preamble of 
this final rule, we are revising the language describing the structures 
to more clearly reflect our intention (see Specific Areas Within the 
Geographical Area Occupied by the Species). The statement referring to 
these structures has been revised to: ``All existing (meaning 
constructed at the time of this critical habitat designation) Federally 
authorized or permitted man-made structures such as aids-to-navigation 
(ATONs), artificial reefs, boat ramps, docks, pilings, maintained 
channels, or marinas do not provide the essential feature that is 
essential to the species' conservation.'' To further inform the public, 
we are specifically not including as part of the critical habitat all 
existing federally authorized navigation channels and harbors because 
they do not provide the essential feature.
    Comment 13: One commenter requested that we add regulatory language 
to the critical habitat designation to specifically list those natural 
and artificial features that do not provide the essential feature.
    Response: In the regulatory text, we define the essential feature 
for elkhorn and staghorn corals as substrate of suitable quality and 
availability to support larval settlement and recruitment, and 
reattachment and recruitment of asexual fragments. ``Substrate of 
suitable quality and availability'' is defined as natural consolidated 
hard substrate or dead coral skeleton that is free from fleshy or turf 
macroalgae cover and sediment cover. We believe this definition is 
precise enough that natural and artificial features that do not 
constitute the essential feature are plainly discernable. This type of 
information is included in the preamble to this final rule to provide 
context and explanation of the features that do and do not provide the 
essential feature, but is not intended to be exhaustive, as that would 
not be practicable.

Comments on the Data Supporting the Designation

    Comment 14: Two commenters submitted data containing the locations 
of occurrences of the species in Puerto Rico and the U.S.V.I.
    Response: We appreciate the additional data and have referenced it 
in the preamble of the designation in the appropriate section. However, 
the data do not change the geographical range occupied by the species. 
Further, the data do not change the designation of the critical habitat 
areas around Puerto Rico and the U.S.V.I.
    Comment 15: Two commenters stated we should closely scrutinize the 
quality of data giving rise to the geographic extent of occupied areas. 
The commenters were specifically interested in the data collection 
methodologies as well as the number and location of elkhorn or staghorn 
coral documented in the waters north of Boca Raton.
    Response: The data that we used to identify the occupied area of 
the species has come from various sources, including literature, 
researchers, resource agencies, and local divers. Those data submitted 
by local divers have all included photos of the species and a latitude 
and longitude of the location where the species was found. We are 
confident that those who have submitted data are proficient enough in 
species identification, as evidenced by the photos, and use of a 
geographic positioning system. Further, the data from the northernmost 
locations of the species have been submitted by a county natural 
resource agency employee and an environmental consultant. Though there 
are few data from the northernmost portion of the species' ranges, this 
is likely due to the relatively recent expansion of reef research into 
this geographic area. We believe the quality of the data that we have 
used to identify the area occupied by the species is the best available 
and sufficient for the purposes of designation.
    Comment 16: One commenter questioned the potential errors in 
geographical information system (GIS) data developed using aerial 
photos from a one-time snapshot at an acre pixel scale. The commenter 
also questioned how we will address presence/absence of the essential 
feature when it comes time for a consultation.
    Response: We fully acknowledge that the GIS data may be imperfect 
due to the age and methods of collection, but it is the best available. 
We relied on the data to identify discrete areas that contain the 
essential feature interspersed among the other natural features of the 
coral reef ecosystem, including seagrass, macroalgae, and 
unconsolidated sediment. At the time of consultation, the Federal 
agency may use all existing data or choose to collect new data to 
determine whether its action may affect the essential feature.

Comments on the Boundaries of the Designation

    Comment 17: We received several comments suggesting that, by 
designating the north boundary of the Florida area at the boundary 
between Martin and Palm Beach counties, we included areas outside of 
the historic or current range for elkhorn and staghorn coral and areas 
that do not provide for the conservation of the species.
    Response: We acknowledge that the northern extent of the ranges of 
these species is south of the northern Palm Beach County line and, upon 
additional examination, were able to more accurately designate the 
northern boundary of the Florida area at Boynton Inlet, Palm Beach 
County, at 26[deg] 32' 42.5'' N. We are modifying the northern boundary 
accordingly in this final rule. We have no knowledge of either species 
of Acropora historically or presently occurring north of this boundary.
    Comment 18: Several commenters stated that these corals do not grow 
in the intertidal zone and requested that we consider mean low water 
(MLW) as the shoreward boundary rather than mean high water (MHW).
    Response: We acknowledge that these species do not grow in the 
intertidal

[[Page 72215]]

zone. The territorial sea baseline is defined at 33 CFR 2.20 as ``the 
mean low water line along the coast of the United States'', which 
further notes that charts depicting the baseline are available for 
examination. Therefore, we are changing the shoreward boundary to MLW 
in this final rule.
    Comment 19: Two commenters stated that the nearshore surf zones of 
Palm Beach, Broward, and Miami-Dade Counties are areas with high 
sediment movement, suspension, and deposition levels. Hard bottom areas 
found within these nearshore surf zones are ephemeral in nature and are 
frequently covered by sand, thus not meeting the definition of the 
proposed essential feature. The commenter requested the shoreward 
boundary of the Florida area be moved offshore in Palm Beach, Broward, 
and Miami-Dade Counties to at least the 1-5 meter depth contour.
    Response: Conditions along the east coast of Florida in the 
nearshore surf zone are not conducive for the identified conservation 
goal of increased sexual and asexual recruitment. The hydrodynamic 
conditions in this portion of the species' range are very different 
from those further south in Florida and around islands in the 
Caribbean, like Puerto Rico and the U.S.V.I. Additionally, upon 
additional review of the current and historic occurrence data for the 
two species along the east coast of Florida, there were no occurrences 
in water less than 6 feet (1.8 m) deep. Therefore, in this final rule, 
we are changing the shoreward boundary for the Florida area to the 6-ft 
(1.8 m) contour from the north boundary at Boynton Inlet south to 
Government Cut, where it moves inshore to MLW. Government Cut was 
identified as the southernmost boundary where there were no occurrences 
of either species in less than 6 feet (1.8 m) of water. There are 
occurrences of the species in less than 6 feet (1.8 m) of water south 
of Government Cut, thus indicating that hydrodynamic conditions are 
suitable for recruitment in shallower waters.
    Comment 20: One commenter stated that the species does not occur in 
the Gulf of Mexico and suggested the boundary of the Florida area be 
changed to the South Atlantic Fishery Management Council (SAFMC) 
boundary.
    Response: We acknowledge that the SAFMC boundary is the appropriate 
boundary in the Florida area given the occupied range of the coral. 
Generally, the SAFMC boundary separates the Gulf of Mexico from the 
Atlantic Ocean. In this final rule, we are changing the northern 
boundary of the Florida Keys portion of the Florida area to coincide 
with the boundary between the SAFMC boundary as defined at 50 CFR 
600.105(c).
    Comment 21: One commenter stated that, based on development trends 
and the associated anthropogenic-induced impacts, it does not appear 
reasonable to designate critical habitat within 100 yards (91.4 m) of 
any platted and improved subdivision with roads, utilities, improved 
shorelines, etc.
    Response: The commenter does not provide a biological basis for the 
comment and does not describe how the area would not provide for the 
conservation of the species. Rather, if the ``anthropogenic-induced 
impacts'' the commenter identified could result in impacts to the 
essential feature and there is a Federal nexus, the species could 
benefit from consultation with us to identify ways to reduce the impact 
to the essential feature.
    Comment 22: One commenter stated that Acropora spp. have not been 
documented any closer than approximately 200 yards (183 m) from the 
shore on the Atlantic Ocean side in the Upper and Middle Florida Keys.
    Response: The commenter is correct that we do not have specific 
data of the species occurring within the distance stated. While that 
area has not been surveyed specifically for Acropora spp., the area is 
considered occupied given the range of this species and because the 
habitat may be conducive for the species. Staghorn coral particularly 
is often found in the back reef and lagoonal areas of the coral reef 
ecosystem, the habitat that occurs in the stated distance from shore. 
Therefore, we have no basis to designate a different shoreward boundary 
within the Upper and Middle Florida Keys.
    Comment 23: One commenter stated that there have been no documented 
acroporid colonies within any portion of Biscayne Bay, including 
residential canal systems or tributaries to Biscayne Bay or the 
Intracoastal Waterway.
    Response: Per textual description in the proposed rule and the 
correction to the maps in the proposed rule (73 FR 12068; March 6, 
2008), neither Biscayne Bay nor the Intracoastal Waterway is within the 
proposed critical habitat.
    Comment 24: Two commenters stated that Monroe County and Miami-Dade 
County typically do not appear to be suitable for colonization of 
Acropora spp. within the residential canals and man-made basins due to 
poor water quality. These systems usually exhibit high turbidity, 
suspended sediments, low water clarity, poor flushing/circulation, and 
nutrient/freshwater influxes from upland runoff.
    Response: As stated in this rule, all existing federally authorized 
or permitted man-made structures, including canals and marinas, do not 
provide the essential feature; and therefore, are not included in the 
designation.
    Comment 25: One commenter suggested that we more clearly map the 
designated area's inland boundaries as few people are familiar with the 
COLREGS line. Another commenter requested that we define the COLREGS 
line.
    Response: The COLREGS line is defined as the lines of demarcation 
delineating those waters upon which mariners shall comply with the 
International Regulations for Preventing Collisions at Sea, 1972 (72 
COLREGS) and those waters upon which mariners shall comply with the 
Inland Navigation Rules. The waters inside of the lines are Inland 
Rules waters. The waters outside the lines are COLREGS waters. So, in 
other words, the COLREGS line separates inland from marine waters. We 
used the COLREGS line because it is depicted on all navigational charts 
and defined at 33 CFR Part 80. Last, the overview maps provided in the 
rule are provided for general guidance purposes only, and not as a 
definitive source for determining critical habitat boundaries.
    Comment 26: One commenter stated that the occurrence of the 
essential feature within the Dry Tortugas (protected by the National 
Park Service) is questionable as shown by its geological history.
    Response: The species have both been documented within the Dry 
Tortugas, and the essential feature is present. Therefore, the area 
remains within the designation.
    Comment 27: One commenter questioned why the area between the 
westernmost Florida Keys and the Dry Tortugas was included in the 
designation. Specifically, the commenter provided information on the 
area around the Marquesas Keys, which demonstrated that the species do 
not presently occur, and have never been present in this area, based on 
the geologic record.
    Response: We appreciate the commenter providing us with this 
information. Additionally, upon further review of the NOAA Biogeography 
Team's Benthic Habitats of the Florida Keys data, there are very few, 
small areas that contain the essential feature between Boca Grande Key 
(approximately 12 miles (19.3 km) west of Key West) and the Dry 
Tortugas. However, based on the information provided by the commenter, 
these areas currently do not, and have never,

[[Page 72216]]

supported the species. The intent of critical habitat is to provide for 
the conservation of the species. Based on the data we had at the time 
of the proposed designation, we included the area between Boca Grande 
Key and the Dry Tortugas because we believed the area contained the 
essential feature and would provide for the conservation of the 
species. With the new information we received and reexamination of 
information used in developing the proposed rule, we determined that 
this area does not contain the feature essential to the conservation of 
the species. Therefore, we are not designating this area as critical 
habitat in this final rule. The western boundary of the Florida Keys 
portion of the Florida area will terminate at 82 W longitude. The Dry 
Tortugas portion of the Florida area will be MLW to the 98-ft (30 m) 
contour with an eastern boundary of 82 45' W longitude. A full 
description of the modified Florida area is provided in the preamble 
and regulatory language of this rule.
    Comment 28: Several commenters expressed concern about the areas 
within the Florida area of the designation that do not contain the 
essential feature and thus are unsuitable to provide for the 
conservation of the species. A few commenters requested that we 
specifically survey and more finely map locations of the essential 
feature.
    Response: The essential feature can be found unevenly dispersed 
throughout the Florida area due to trends in macroalgae coverage and 
naturally occurring unconsolidated sediment and seagrasses dispersed 
within the reef ecosystem. However, as described in the response to 
Comment 27, we are not designating a large portion of the proposed 
Florida area based on new information that the area does not contain 
the essential feature. Within the remainder of the Florida area, larger 
numbers of smaller specific areas could not be identified because the 
submerged nature of the essential feature, the limits of available 
information on the distribution of the essential feature, and limits on 
mapping methodologies make it infeasible to define the specific areas 
containing the essential feature more finely than described herein. The 
ESA requires us to designate critical habitat to the maximum extent 
prudent and determinable, based on the best information available.
    Comment 29: One commenter requested that we identify all roads and 
bridges within the textual description and on the maps for critical 
habitat, as has been done for other terrestrial species. Further, the 
same commenter requested that bridges be added to the list of existing 
man-made structures that do not provide the essential feature.
    Response: We have designated critical habitat using known 
boundaries that are applicable to the marine ecosystem in which the 
species occur. We do not believe that it would be more informative to 
the public to identify roads and bridges on maps of the critical 
habitat areas. While we agree that bridges do not provide the essential 
feature, the list of existing man-made structures that do not provide 
the essential feature is not exhaustive; it is provided to give the 
public examples of the types of structures to which we are referring.
    Comment 30: One commenter stated that we should designate all areas 
occupied by elkhorn and staghorn corals in Florida - especially Florida 
Bay - as critical habitat. The commenter also expressed concern about 
the quality of water entering Florida Bay from the Everglades, and 
stated that including Florida Bay in the critical habitat designation 
would benefit corals living there.
    Response: As stated in the proposed rule, the critical habitat 
designation for threatened corals focuses on substrate of suitable 
quality and availability to support successful sexual and asexual 
reproduction of the two corals. While hardbottom does exist within 
Florida Bay, neither elkhorn nor staghorn coral has ever been observed 
or documented living in this area, making it unlikely that the larvae 
or fragments of either coral species would settle on or reattach to 
hardbottom located within Florida Bay. Therefore, we do not believe 
that any hard substrate in Florida Bay would contribute to the 
conservation objective for this designation - facilitating increased 
successful reproduction.
    Comment 31: One commenter recommended that the designation be 
limited and exclude ``areas with documented historical low densities, 
or documented current and historical absence of the species and 
essential feature''. The commenter provided specific references to 
support the comment (Goenaga and Cintron, 1979; ``Benthic Habitats of 
Puerto Rico and the U.S. Virgin Islands'' by NOAA's Biogeography 
Program; and two maps of occurrences of Acropora in Miami- Dade and 
Monroe Counties).
    Response: As stated in the response to Comment 27, we reevaluated 
the NOAA benthic characterization data, which supported our 
identification of areas that contain the essential feature. The 
reevaluation yielded the modification of the Florida critical habitat 
area based on the documented current and historical absence of the 
species or essential feature, or both. The data contained in the two 
maps provided by the commenter were considered in the proposed rule and 
did not support the identification of any small specific areas that do 
not contain the essential feature. The reevaluation of the data did not 
support revision of the Puerto Rico or U.S.V.I. areas. As discussed in 
the Geographical Areas Occupied by the Species section of this rule, 
both species have been documented to occur, historically and presently, 
surrounding the main island and offshore cays within these areas. 
Goenaga and Cintron's paper is an inventory of the Puerto Rican reefs 
from the late 1970s. Although we have considered the information 
provided by the commenter, it does not support the identification of 
areas that do not contain the essential feature; thus, we are not 
revising this final rule on the basis of this information.
    Comment 32: Two commenters requested exclusions and exemptions for 
the Port of Key West to provide for normal channel and harbor 
activities. A buffer around the Port was also requested.
    Response: As stated in the response to Comment 13, all existing 
federally authorized and permitted navigation channels and harbors, 
which include the Port of Key West, are not included in the critical 
habitat, because they do not contain the essential feature. The ESA 
does not allow for the identification of buffers around areas not 
included per se. Areas that do not contain the essential feature do not 
meet the definition of critical habitat and therefore may not be 
designated. Also, areas may be excluded on the basis of economic, 
national security, or other relevant impacts. The area surrounding the 
Port of Key West meets the definition of critical habitat, and we did 
not identify any basis for exclusion of this area.
    Comment 33: One commenter stated that we did not mention the 
offshore islands and cays in the U.S.V.I. as being part of the 
designation.
    Response: As stated in the regulatory language in the proposed rule 
and this rule, all areas from MLW to the 98-ft (30 m) contour within 
the U.S.V.I. are included in the designation, which would include the 
offshore cays and islands.
    Comment 34: One commenter requested buffer zones for critical 
habitat in order to avoid potential indirect impacts for any kind of 
project that would be developed very close to those critical habitats. 
A second commenter requested that we identify

[[Page 72217]]

the maximum distance from critical habitat a project may be to avoid 
direct or secondary impacts to the essential feature.
    Response: While the ESA does not provide for the identification of 
buffer zones around critical habitat, Federal agencies authorizing, 
funding, or carrying out activities that occur outside critical 
habitat, regardless of distance from critical habitat, that may have 
effects to the essential feature within critical habitat must conduct 
an ESA section 7 consultation. Conversely, actions that have no direct 
or indirect effects on the essential feature - even actions within or 
immediately adjacent to critical habitat - would not require 
consultation based on critical habitat.
    Comment 35: Several commenters questioned our assertion that we 
were only designating areas that met the definition of occupied 
critical habitat, because there are other substrate types interspersed 
with the essential feature within the designation and because there are 
particular sites where the corals are not present. Another commenter 
questioned our interpretation of ``geographical area occupied'' to mean 
the range of a species at the time of listing.
    Response: We have long interpreted ``geographical area occupied'' 
in the definition of critical habitat to mean the range of the species 
at the time of listing (45 FR 13011; February 27, 1980). The term 
``specific areas'' in the definition of critical habitat refers to 
areas on which the feature essential to a species' conservation are 
found. The designated critical habitat areas fall within the 
geographical area occupied by both species, and the essential feature 
is found on these areas. We have not identified any areas outside the 
geographical area occupied by the species that are essential for their 
conservation. Therefore, we did not designate any unoccupied areas for 
elkhorn and staghorn corals.
    Comment 36: One commenter suggested that we designate critical 
habitat to allow for shifts in distribution of the species and 
adaptation in response to global warming.
    Response: The ESA does not provide for designation of critical 
habitat based upon speculation about expansions into habitats or ranges 
never occupied by the species. While the definition of critical habitat 
does include areas outside the geographical area occupied by the 
species at the time of listing, the habitat would have to be essential 
to the conservation of the species. As determined through the listing 
of elkhorn and staghorn corals, there has been no range constriction 
for either species. The species currently occupy their entire 
historical ranges, only in lower abundances. There is no evidence that 
any areas outside the historical ranges of the species have suitable 
conditions to support the species.

Comments on ESA Section 7 Consultations and Economic Impacts

    Comment 37: One commenter stated that the rule erroneously mentions 
only formal consultations but does not analyze informal consultations, 
which impact Federal agencies also.
    Response: In the 4(b)(2) Report, we base our impact analysis on 
consultations conducted in the last 10 years that occurred in the 
designated areas and that may affect the designated critical habitat, 
regardless of whether the consultation was concluded formally or 
informally. We then assumed that all future consultations would be 
formal, acknowledging that assumption would result in an overestimation 
of impacts. Therefore, we did not omit informal consultations from the 
impacts assessment.
    Comment 38: One commenter requested we specifically identify other 
regulations that address modifications, including those pertaining to 
water quality, that may be required to avoid destroying or adversely 
modifying the essential feature and give examples of when compliance 
with these other regulations would eliminate the need for ESA section 7 
consultation.
    Response: In our Draft 4(b)(2) Report, we identified potential 
project modifications that may be required to avoid destruction or 
adverse modification of critical habitat. Several of the potential 
project modifications, such as turbidity controls and conditions 
monitoring, are currently required by other existing regulations, such 
as a Clean Water Act (ESA) section 404 permit. We intended this example 
to illustrate that the cost of implementing these project modifications 
would not be solely attributable to the critical habitat designation; 
it was not our intention to suggest that ESA section 7 consultation 
would not be required if the project modification were required by 
another regulation. The ESA requires all Federal agencies to consult on 
their actions that may affect critical habitat regardless of any other 
regulations that may be applicable to the action. It is possible that 
an action may be modified by another regulatory requirement that 
results in removing all possible effects to critical habitat. In this 
case, ESA section 7 consultation would not be necessary. We have not 
evaluated every water quality standard or National Pollution Discharge 
Elimination System (NPDES) permit to determine the effects of those 
Federal actions on critical habitat. It is the responsibility of the 
Federal action agency to determine the effects of its action on listed 
species and designated critical habitat. Therefore, we cannot identify 
specific water quality standards or NPDES conditions that do not affect 
critical habitat.
    Comment 39: The U.S. Army Corps of Engineers (COE) commented that 
we underestimated the number of consultations resulting from COE 
regulatory projects that may affect critical habitat.
    Response: During discussions with the COE as we developed this 
final rule, we clarified that projects occurring within (and whose 
effects are limited to) existing Federally authorized or permitted 
channels or harbors would not result in consultation because these 
areas do not contain the essential feature. As a result of these 
discussions, we continue to rely on the consultation data provided in 
the draft 4(b)(2) report and use this information in the impacts 
analysis in the final 4(b)(2) report.
    Comment 40: The COE stated that we underestimated the number of 
Operation and Maintenance Dredging Program consultations due to the 
existence of the Biological Opinion on ``[t]he continued hopper 
dredging of channels and borrow areas in the southeastern United 
States,'' which covers all maintenance dredging of Federal channels 
with the use of a hopper dredge. The COE said that new individual 
consultations would be necessary for each maintenance event.
    Response: The referenced Biological Opinion was captured in our 
database query and included in our impact analysis in the 4(b)(2) 
Report. The COE has reinitiated consultation with us for that action; 
therefore, the effects of all the events covered in that consultation 
will be considered in one consultation. The data we used included the 
projection of this consultation and did not underestimate the number of 
consultations. Moreover, as stated above, all federally authorized or 
permitted navigation channels are not included in the designation; thus 
the analysis in this reinitiated consultation will be limited to 
turbidity and sediment effects to areas adjacent to the channels that 
may contain the essential feature.
    Comment 41: One commenter said our statement that ``no categories 
of Federal actions would require consultation in the future solely due 
to the critical habitat designation'' is incorrect. The commenter said 
that the

[[Page 72218]]

critical habitat designation is ``everywhere''.
    Response: Our statement referred to categories of activities and 
not individual actions. We discussed this distinction at length in the 
Draft 4(b)(2) Report. The categories discussed in the 4(b)(2) Report 
were all determined to be capable of affecting both critical habitat 
and the corals themselves; activities that could adversely affect the 
corals would require consultation even if critical habitat were not 
designated.
    Comment 42: One commenter questioned whether Federal agencies would 
have to consult on their actions if the species were present, but the 
project was not within the critical habitat designation.
    Response: Yes, as discussed in the response to Comment 41, the 
responsibility for Federal agencies to consult on their actions that 
may affect the species initiated with the listing of the species on May 
9, 2006. The species are listed wherever they occur, regardless of a 
critical habitat designation.
    Comment 43: One commenter stated that our statement that Florida 
will be affected, but the Caribbean will be relatively unaffected, 
reflects the ignorance of the agency regarding Caribbean resources and 
the level of development in the islands. The commenter said the 
ignorance of the agency and those who wrote all documents related to 
this listing, not just the critical habitat rule, is further 
demonstrated by the statement that the rule will have little impact on 
dock construction because most dock construction takes place in canals. 
This may be the case for Florida, but the Caribbean does not have man-
made canals unless they are excavated in inland marinas in areas 
containing salt ponds, coral reefs, and seagrass beds.
    Response: Our Draft 4(b)(2) Report used the best available data to 
estimate potential economic impacts resulting from the designation. 
Consultations on dock construction are captured in our data under the 
category of COE-permitted construction activities. The data from the 
last 10 years were: 235 consultations in Florida on COE-permitted 
construction activities; 75 consultations in Puerto Rico on COE-
permitted construction activities; and 25 consultations in the U.S.V.I 
on COE-permitted construction activities. These data indicate that 
Florida had more than twice the amount of consultations in the 
Caribbean; thus, the impacts to Florida from marine construction 
activities would be larger as a result of the designation.
    We acknowledge the difference in the physical nature of the coast 
between Florida and the Caribbean. The Florida coastline is highly 
altered, and most dock construction occurs in man-made canals. 
Alternatively, the islands of Puerto Rico and the U.S.V.I. have a 
greater proportion of natural shoreline along which docks may be 
constructed. Further, dock construction projects are not likely to 
result in large impacts to critical habitat necessitating large project 
modifications due to: (1) the typically small action area of docks; (2) 
the preference for constructing docks in unconsolidated sediment to 
minimize the difficulty and cost of driving piles into consolidated 
rock; and (3) the relatively inexpensive measures to minimize impacts 
through essential feature avoidance and turbidity controls. Further, 
even given the differences in the physical nature of the shorelines, 
the impact of project modifications to dock construction projects due 
to the critical habitat designation in the Caribbean will not solely be 
the result of the critical habitat designation. The ESA listing and 
existing regulations, such as the CWA and Magnuson-Stevens Fishery 
Conservation and Management Act (MSA), would likely require the same 
avoidance and minimization measures for elkhorn and staghorn corals and 
other species of corals; thus, many of the costs would be coextensive 
with these regulations and not solely a result of the critical habitat 
designation.
    Comment 44: One commenter stated that bec