Endangered and Threatened Species; Critical Habitat for the Endangered Distinct Population Segment of Smalltooth Sawfish, 45353-45378 [E9-21186]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Rules and Regulations]
[Pages 45353-45378]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21186]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 070717355-91122-02]
RIN 0648-AV74


Endangered and Threatened Species; Critical Habitat for the 
Endangered Distinct Population Segment of Smalltooth Sawfish

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule to designate critical habitat for the U.S. distinct 
population segment (DPS) of smalltooth sawfish (Pristis pectinata), 
which was listed as endangered on April 1, 2003, under the Endangered 
Species Act (ESA). The critical habitat consists of two units: the 
Charlotte Harbor Estuary Unit, which comprises approximately 221,459 
acres of coastal habitat; and the Ten Thousand Islands/Everglades Unit 
(TTI/E), which comprises approximately 619,013 acres of coastal 
habitat. The two units are located along the southwestern coast of 
Florida between Charlotte Harbor and Florida Bay.

DATES: This rule becomes effective October 2, 2009.

ADDRESSES: The final rule, Final Regulatory Flexibility Analysis, and 
Final 4(b)(2) Report used in preparation of this final rule, as well as 
comments and information received, are available on the NMFS Web site 
at https://www.sero.noaa.gov/, or https://www.regulations.gov, or by 
contacting the National Marine Fisheries Service's Southeast Regional 
Office, 263 13th Avenue, South, St. Petersburg, FL 33701.

FOR FURTHER INFORMATION CONTACT: Shelley Norton, NMFS, Southeast 
Regional Office, at 727-824-5312; or Lisa Manning, NMFS, Office of 
Protected Resources, at 301-713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    Under the ESA, we are responsible for determining whether certain 
species are threatened or endangered and for designating critical 
habitat for such species (16 U.S.C. 1533). On April 1, 2003, we listed 
the U.S. DPS of smalltooth sawfish (``the species'') as endangered (68 
FR 15674). At the time of listing, we also announced that critical 
habitat was not then determinable because we were completing ongoing 
studies necessary for the identification of specific habitats and 
environmental features important for the conservation of the species. 
Subsequently, we have sponsored additional research on the species, its 
habitat use, and its conservation needs. Additionally, NMFS has 
developed a recovery plan (NMFS, 2009) for the species pursuant to 
section 4(f) of the ESA. We have reviewed the best available scientific 
data and identified specific areas in the species' occupied range on 
which are located those physical and biological features essential to 
the conservation of the species that may require special management 
considerations or protection. We published a proposed critical habitat 
designation for the smalltooth sawfish on November 20, 2008 (73 FR 
70290), and requested comments by January 20, 2009. On December 9, 
2008, we published a notice in the Federal Register (73 FR 74681) 
announcing the dates, times, and locations of two public hearings to 
receive public comments on the proposed critical habitat rule. In 
addition to the Federal Register notice announcing the public hearings, 
we advertised the public hearings in the local newspapers (News-Press 
of Ft. Myers on December 8, 2008, and in the Naples-News on December 
14, 2008). During the public comment period we received several 
requests to extend the public comment period. On January 29, 2009, we 
reopened the public comment period until February 13, 2009 (74 FR 
5141).
    The key conservation objective we have identified for the species 
is the need to facilitate recruitment into the adult sawfish population 
by protecting juvenile nursery areas. We determined the location of 
nursery areas by applying a model developed for identifying 
elasmobranch nursery areas to smalltooth sawfish encounter data. 
Additionally, we determined that the habitat features essential to the 
conservation of the species (also known as the essential features) are 
red mangroves and shallow euryhaline habitats characterized by water 
depths between the Mean High Water line and 3 ft (0.9 m) measured at 
Mean Lower Low Water (MLLW). These essential features are necessary to 
facilitate recruitment of juveniles into the adult population, because 
they provide for predator avoidance and habitat for prey in the areas 
currently being used as juvenile nursery areas. We determined these 
features may require special management considerations or protection 
due to human and natural impacts to the features, including 
development, marine construction, and storms. We proposed designating 
two specific areas that are nursery areas and contain the essential 
features necessary to the species conservation. The two areas are: the 
Charlotte Harbor Estuary Unit, which comprises approximately 221,459 
acres (346 mi\2\) of coastal habitat; and the Ten Thousand Islands/
Everglades Unit (TTI/E), which comprises approximately 619,013 acres 
(967 mi\2\) of coastal habitat. The two units are located along the 
southwestern coast of Florida between Charlotte Harbor and Florida Bay.

Smalltooth Sawfish Natural History

    The following discussion of the distribution, life history, and 
habitat use of the U.S. DPS of smalltooth sawfish is based on the best 
available commercial and scientific information, including information 
provided in the Status Review (65 FR 12959; March 10, 2000) and the 
Smalltooth Sawfish Recovery Plan (January 2009).

Distribution and Range

    Smalltooth sawfish are tropical marine and estuarine elasmobranch 
(e.g., sharks, skates, and rays) fish that are reported to have a 
circumtropical distribution. The historic range of the smalltooth 
sawfish in the United States extends from Texas to New York (NMFS, 
2009). The U.S. region that has historically harbored the largest 
number of smalltooth sawfish is south and southwest Florida from 
Charlotte Harbor to the Dry Tortugas. Most historic capture records 
along the Atlantic coast north of Florida are from spring and summer 
months and warmer water temperatures. Most specimens captured along the 
Atlantic coast north of Florida were also large (greater than 10 ft or 
3 m) adults and thought to represent seasonal migrants, wanderers, or 
colonizers from a core or resident population(s) to the south rather 
than being resident members of a continuous, even-density population 
(Bigelow and Schroeder, 1953). Historic records from Texas to the 
Florida Panhandle suggest a similar spring and summer pattern of 
occurrence. While less common, winter

[[Page 45354]]

records from the northern Gulf of Mexico suggest a resident population, 
including juveniles, may have once existed in this region.
    The Status Review Team (NMFS, 2000) compiled information from all 
known literature accounts, museum collection specimens, and other 
records of the species. The species suffered significant population 
decline and range constriction in the early to mid 1900s. Encounters 
with the species outside of Florida have been rare since that time.
    Since the 1990s, the distribution of smalltooth sawfish in the 
United States has been restricted to peninsular Florida (Seitz and 
Poulakis, 2002; Poulakis and Seitz, 2004; Simpfendorfer and Wiley, 
2005a; Mote Marine Laboratory's Sawfish Encounter Database; and the 
FLMNH National Sawfish Encounter Database [FLMNHNSED]). Encounter data 
indicate smalltooth sawfish encounters can be found with some 
regularity only in south Florida from Charlotte Harbor to Florida Bay. 
A limited number of reported encounters (one in Georgia, one in 
Alabama, one in Louisiana, and one in Texas) have occurred outside of 
Florida since 1998.
    Peninsular Florida is the main U.S. region that historically and 
currently hosts the species year-round because the region provides the 
appropriate climate (subtropical to tropical) and contains the habitat 
types (lagoons, bays, mangroves, and nearshore reefs) suitable for the 
species. Encounter data and research efforts indicate a resident, 
reproducing population of smalltooth sawfish exists only in southwest 
Florida (Simpfendorfer and Wiley, 2005a).

Life History

    Smalltooth sawfish are approximately 31 in (80 cm) in total length 
at birth and may grow to a length of 18 ft (540 cm) or greater. A 
recent study by Simpfendorfer et al. (2008) suggests rapid juvenile 
growth occurs during the first 2 years after birth. First year growth 
is 26-33 in (65-85 cm) and second year growth is 19-27 in (48-68 cm). 
Growth rates beyond 2 years are uncertain; however, the average growth 
rate of captive smalltooth sawfish has been reported between 5.8 in 
(13.9 cm) and 7.7 in (19.6 cm) per year. Apart from captive animals, 
little is known of the species' age parameters (i.e., age-specific 
growth rates, age at maturity, and maximum age). Simpfendorfer (2000) 
estimated age at maturity between 10 and 20 years, and a maximum age of 
30 to 60 years. Unpublished data from Mote Marine Laboratory (MML) and 
NMFS indicate male smalltooth sawfish do not reach maturity until they 
reach 133 in (340 cm).
    No directed research on smalltooth sawfish feeding habits exists. 
Reports of sawfish feeding habits suggest they subsist chiefly on small 
schooling fish, such as mullets and clupeids. They are also reported to 
feed on crustaceans and other bottom-dwelling organisms. Observations 
of sawfish feeding behavior indicate that they attack fish by slashing 
sideways through schools, and often impale the fish on their rostral 
(saw) teeth (Breder, 1952). The fish are subsequently scraped off the 
teeth by rubbing them on the bottom and then ingested whole. The oral 
teeth of sawfish are ray-like, having flattened cusps that are better 
suited to crushing or gripping.
    Very little is known about the specific reproductive biology of the 
smalltooth sawfish. As with all elasmobranchs, fertilization occurs 
internally. The embryos of smalltooth sawfish, while still bearing the 
large yolk sac, resemble adults relative to the position of their fins 
and absence of the lower caudal lobe. During embryonic development, the 
rostral blade is soft and flexible. The rostral teeth are also 
encapsulated or enclosed in a sheath until birth. Shortly after birth, 
the teeth become exposed and attain their full size, proportionate to 
the size of the saw. Total length of the animal at birth is 
approximately 31 in (80 cm), with the smallest free-living specimens 
reported during field studies in Florida being 27-32 in (69-81 cm) 
(Simpfendorfer et al., 2008). Documentation on the litter size of 
smalltooth sawfish is very limited. Gravid females have been documented 
carrying between 15-20 embryos; however, the source of these data is 
unclear and may represent an over-estimate of litter size. Studies of 
largetooth sawfish in Lake Nicaragua (Thorson, 1976) report brood sizes 
of 1-13 individuals, with a mean of 7 individuals. The gestation period 
for largetooth sawfish is approximately 5 months, and females likely 
produce litters every second year. Although there are no such studies 
on smalltooth sawfish, their similarity to the largetooth sawfish 
implies that their reproductive biology may be similar. Genetic 
research currently underway may assist in determining reproductive 
characteristics (i.e., litter size and breeding periodicity).
    No confirmed breeding sites have been identified to date since 
directed research began in 1998. Research is underway to investigate 
areas where adult smalltooth sawfish have been reported to congregate 
along the Everglades coast to determine if breeding is occurring in the 
area.
    Life history information on the smalltooth sawfish has been 
evaluated using a demographic approach and life history data from the 
literature on smalltooth sawfish, largetooth sawfish, and similar 
species. Simpfendorfer (2000) estimates intrinsic rates of natural 
population increase of 0.08 to 0.13 per year and population doubling 
times from 5.4 to 8.5 years. These low intrinsic rates of population 
increase are associated with the life history strategy known as ``k-
selection.'' K-selected animals are usually successful at maintaining 
relatively small, persistent population sizes in relatively constant 
environments. Consequently, they are not able to respond effectively 
(rapidly) to additional and new sources of mortality resulting from 
changes in their environment. Musick (1999) and Musick et al. (2000) 
noted that intrinsic rates of increase less than ten percent were low, 
and such species are particularly vulnerable to excessive mortalities 
and rapid population declines, after which recovery may take decades. 
Thus, smalltooth sawfish populations are expected to recover slowly. 
Simpfendorfer (2000) concluded that recovery was likely to take decades 
or longer, depending on how effectively sawfish could be protected.

Habitat Usage

    At the time of listing, very little information was known about the 
habitat usage patterns of the species. The Status Review (NMFS, 2000) 
and the final listing rule identified habitat loss and degradation as 
the secondary cause of the species' decline. The primary reason for the 
species' decline was bycatch in various commercial and recreational 
fisheries.
    The Status Review described sawfish habitat usage as: ``Sawfish in 
general inhabit the shallow coastal waters of most warm seas throughout 
the world. They are found very close to shore in muddy and sandy 
bottoms, seldom descending to depths greater than 32 ft (10 m). They 
are often found in sheltered bays, on shallow banks, and in estuaries 
or river mouths.'' In the years since the status review, additional 
research on habitat use by smalltooth sawfish has been undertaken. This 
research confirmed the general characterization of habitat use for 
smalltooth sawfish and revealed a more complex pattern of habitat use 
than previously known, with different life history stages having 
different patterns of habitat use.
    A variety of methods have been used to study habitat use patterns 
of smalltooth sawfish, including acoustic telemetry (Simpfendorfer, 
2003),

[[Page 45355]]

acoustic monitoring (Simpfendorfer, unpublished data; Poulakis, 
unpublished data), public encounter databases (Seitz and Poulakis, 
2002; Poulakis and Seitz, 2004; Simpfendorfer and Wiley, 2005a), and 
satellite archival tagging (Simpfendorfer and Wiley, 2005b). The 
majority of this research has targeted juvenile sawfish, but some 
information on adult habitat use has also been obtained.
    MML and the Florida Fish and Wildlife Research Institute (FWRI) 
manage encounter databases containing data on sightings and captures of 
smalltooth sawfish from commercial and recreational fishermen, research 
efforts, and other sources (e.g., divers and boaters). These databases 
provide insight into the habitat use patterns of smalltooth sawfish. To 
request reporting of sightings/captures from the public, MML and FWRI 
(1998-2008) have engaged in various outreach efforts. These efforts 
include placing flyers at boat ramps and tackle/dive shops, media 
releases, articles in fishing magazines, interviews with recreational 
fishing guides and commercial fishers, Web sites, and personal contacts 
with researchers. Standard questionnaires are used to collect encounter 
data (water depth, location, tidal states, gear information, size of 
animal, and various other physical and environmental features). 
Outreach efforts were initially focused primarily in Florida but have 
expanded into areas along the southeastern coasts of the United States 
between Texas and North Carolina.
    Based on our historic and current knowledge of where smalltooth 
sawfish are encountered (coastal areas), we believe recreational 
fishers who primarily fish in coastal areas represent the best source 
of occurrence data for the species. Additionally, Simpfendorfer and 
Wiley (2005a) analyzed the number of registered fishers in Florida by 
county to see if fishing effort affects the distribution of the 
encounters. No strong correlation between the distribution of fishers 
and encounter locations was found. Based on Simpfendorfer and Wiley 
(2005a), we believe that the encounter data are not geographically 
biased.
    Directed research programs conducted by FWRI, MML, FLMNH, and NMFS 
are also a source of encounter data. Directed-research efforts on the 
species are also primarily focused in coastal areas but are limited to 
southwest Florida between Charlotte Harbor and the Florida Keys. The 
sampling methodologies for the directed research efforts are not random 
or stratified: Research efforts are focused in areas where sawfish have 
been encountered, primarily southwest Florida. We anticipate future 
sampling efforts for these and other areas will use a random-stratified 
approach. Research is underway to determine habitat usage patterns, 
site fidelity, movement patterns, and various genetic relationships.
    Encounter and research data provide some insight into adult 
smalltooth sawfish habitat usage patterns. Information on adult 
smalltooth sawfish comes from encounter data, observers aboard fishing 
vessels, and pop-up satellite archival tags (PAT). Data on adult male 
(at least 134 in (340 cm) in length) and adult female (142 in (360 cm) 
in length) smalltooth sawfish are very limited. The encounter data 
suggest that adult sawfish occur from shallow coastal waters to deeper 
shelf waters. Poulakis and Seitz (2004) observed that nearly half of 
the encounters with adult-sized sawfish in Florida Bay and the Florida 
Keys occurred in depths from 200 to 400 ft (70 to 122 m). Simpfendorfer 
and Wiley (2005a) also reported encounters in deeper water off the 
Florida Keys, noting that these were mostly reported during winter. 
Observations on commercial longline fishing vessels and fishery 
independent sampling in the Florida Straits show large sawfish in 
depths of up to 130 ft (40 m) (Carlson and Burgess, unpublished data).
    Seitz and Poulakis (2002) reported that one adult-sized animal, 
identifiable by its broken rostrum, was captured in the same location 
over a period of a month near Big Carlos Pass. This suggests that 
adults may have some level of site fidelity for relatively short 
periods; however, the historic occurrence of seasonal migrations along 
the U.S. East Coast also suggests that adults may be more nomadic than 
juveniles with their distribution controlled, at least in part, by 
water temperature.
    In summary, there is limited information on adult sawfish 
distribution and habitat use. Adult sawfish are encountered in various 
habitat types (mangrove, reef, seagrass, and coral), in varying 
salinity regimes and temperatures, and at various water depths. Adults 
are believed to feed on a variety of fish species and crustaceans. No 
known breeding sites have been identified. Encounter data have 
identified river mouths as areas where many people observe both 
juvenile and adult sawfish. Seitz and Poulakis (2002) noted that many 
encounters occurred at or near river mouths in southwest Florida. 
Simpfendorfer and Wiley (2005b) reported a similar pattern of 
distribution along the entire west coast of Florida. Along the 
Everglades coastal region, Simpfendorfer and Wiley (2005b) report a 
strong association of smalltooth sawfish with the Chatham, Lostmans, 
Rodgers, Broad, Harney, and Shark Rivers.
    Most of the research and encounter data on habitat usage of 
smalltooth sawfish have been obtained on juveniles less than 79 in (200 
cm) in length. Juveniles in this size class are most susceptible to 
predation and starvation (Simpfendorfer, 2006). Like other species of 
elasmobranchs, smalltooth sawfish appear to use nursery areas because 
of the reduced numbers of predators and abundant food resources such 
areas can provide (Simpfendorfer and Milward, 1993).
    Much of the research on smalltooth sawfish juveniles indicates some 
differences in habitat use based on the length of the animals, between 
what are characterized as very small (less than 39 in (100 cm)) and 
small (39-79 in (100-200) cm) juveniles. Most encounters of both very 
small and small juveniles have been within 1,641 ft (500 m) of shore 
(Simpfendorfer, 2006).
    Very small juvenile smalltooth sawfish show high levels of site 
fidelity, at least over periods of days and potentially for much longer 
(Simpfendorfer, 2003; 2006). Limited acoustic tracking studies (five 
animals) have shown that, at this size, sawfish will remain associated 
with the same shallow mud bank over periods of several days 
(Simpfendorfer, 2003). Very small juveniles spend a large portion of 
their time on the same shallow mud or sand banks in water less than 1 
ft (30 cm) deep. Since water levels on individual mud banks vary with 
the tide, the movements of these small animals appear to be directed 
toward remaining in shallow water. The mud banks are very small, and 
preliminary home range size for the tracked animals is estimated to be 
1,076-10,763 ft\2\ (100-1,000 m\2\) (Simpfendorfer, 2003). The longer-
term fidelity to these sites is poorly understood, and ongoing research 
is expected to provide more insight into determining how much habitat 
very small juveniles use on a daily basis. Simpfendorfer (2001) 
concludes that shallow coastal waters represent key habitat for the 
species, and in particular that waters less than 3.3 ft (1 m) may be 
very important as nursery areas. The primary purpose of staying in such 
shallow water is likely to avoid predators, such as bull sharks. 
Additionally, these shallow waters provide warm water temperatures that 
may be utilized to maximize growth rates (Simpfendorfer, 2006).

[[Page 45356]]

Simpfendorfer (2001) concludes that most smalltooth sawfish (adults and 
juveniles) show a preference for water temperatures greater than 17.8 
[deg]C (64 [deg]F).
    In addition to shallow mud banks, very small juveniles also use red 
mangrove prop root habitats in southern Florida (Simpfendorfer and 
Wiley, 2005a). Animals in this size class spend the vast majority of 
their time in very shallow water less than 1 ft (30 cm) deep, and they 
tend to move into mangrove prop roots during periods of high tide. Red 
mangrove habitats also provide foraging opportunities for very small 
and small juveniles, because the prop root system provides nursery 
areas for various fish and crustacean species.
    Small juveniles have many of the same habitat use characteristics 
seen in the very small sawfish. Their association with very shallow 
water (less than 1 ft (30 cm) deep) is slightly weaker, possibly 
because they are better suited to predator avoidance due to their 
larger size and greater experience (NMFS, 2006). They do still have a 
preference for shallow water, remaining in depths mostly less than 3.3 
ft (1 m). Most encounters of small juveniles also occur near red 
mangroves. Site fidelity has also been studied for small juvenile 
sawfish. Several sawfish, approximately 59 in (150 cm) in length and 
fitted with acoustic tags, have been relocated in the same general 
areas over periods of several months, suggesting a high level of site 
fidelity (Simpfendorfer, 2003). The daily home range for these animals, 
based on data from a few animals, appears to be much larger than that 
of very small juveniles (0.386-1.93 mi\2\ or 1-5 km\2\). The recent 
implementation of acoustic monitoring systems to study the longer term 
site fidelity of sawfish has confirmed these observations and also 
indicates that changes in environmental conditions such as salinity may 
be important in driving changes in local distribution and, therefore, 
habitat use patterns (Simpfendorfer, unpublished data).
    Simpfendorfer and Wiley (2005) documented that no encounters 
occurred within habitat in permanent freshwater areas. Many encounters 
occur near river mouths or near sources of freshwater inflow, and 
encounter data suggest that estuarine habitats may be an important 
factor affecting the species' distribution. Simpfendorfer (2001) 
suggests that smalltooth sawfish occur in river mouth areas because of 
the lower salinity, submerged vegetation, or abundant prey. We analyzed 
MML and FWRI encounter data from 1998-2008 for juveniles, and the data 
indicate the majority of the juvenile encounters occurred within 
euryhaline or estuarine waters. Euryhaline/estuarine waters are highly 
productive areas that contain a variety of food sources for the 
smalltooth sawfish. Mullet, clupeids, and various crustacean species 
that are known food sources for the smalltooth sawfish are commonly 
found in estuarine areas.
    Juvenile smalltooth sawfish may require specific salinity regimes 
with specific freshwater inputs, but, at this time, data on specific 
salinity regime requirements for the species do not exist. Ongoing 
studies of habitat use patterns of very small and small juveniles in 
the Caloosahatchee River are expected to provide more insight into the 
habitat used by or necessary for an individual juvenile (less than or 
equal to 79 in (200 cm) in length) smalltooth sawfish. At this time, 
however, there are insufficient data available to determine whether 
specific salinity ranges are requirements of small juveniles.
    Data on large (greater than 79 in (200 cm) in length) juvenile 
smalltooth sawfish are limited, and more information is needed to 
determine the habitat usage patterns and site fidelity characteristics 
of this size class of smalltooth sawfish.

Summary of Comments and Responses

    We requested comments on the proposed rule to designate critical 
habitat for the endangered U.S. DPS of smalltooth sawfish on November 
20, 2008 (73 FR 70290), and on January 29, 2009 (74 FR 5141), we 
reopened the comment period until February 13, 2009. We held two public 
hearings to facilitate public participation, the proposed rule was 
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 impact report required 
under Section 4(b)(2) of the ESA was posted. We obtained independent 
peer review on both the scientific information in the proposed rule and 
on the Draft 4(b)(2) Report (NMFS, 2008).
    We have considered all peer review and public comments, and those 
that are responsive to the designation are addressed in this final rule 
and discussed in the following summary. We have assigned public 
comments to major issue categories and, where appropriate, have 
combined similar comments.

Peer Review Comments

    Comment 1: Two reviewers stated NMFS used the best available 
information on the species and also stated the areas proposed for 
designation were justified by the available data.
    Comment 2: One reviewer noted the daily home range area for small 
juveniles was calculated incorrectly for small juveniles. The home 
range value of 1-5 km\2\ equates to 0.386-1.93 mi\2\.
    Response: We corrected the home range value in our discussion in 
this rule.
    Comment 3: One reviewer stated that NMFS should revise the critical 
habitat rule if new data identify additional nursery areas, discrete 
areas used by other size classes of animals, or mating aggregations.
    Response: NMFS will consider revising the critical habitat 
designation if new data identify areas containing features essential 
for the conservation of the species, or areas in the species' 
unoccupied range that are essential for the conservation of the 
species.
    Comment 4: A reviewer stated that NMFS should monitor freshwater 
flow regimes (salinity fluctuations, dissolved oxygen, flow rates), and 
nutrients, red mangroves, and submerged aquatic vegetation in the 
designated areas.
    Response: NMFS is required to consult under section 7 of the ESA on 
Federal actions that may affect listed species, including the 
smalltooth sawfish, or their designated critical habitat. Therefore, 
NMFS would consult under section 7 of the ESA on the effects from 
alterations of freshwater flow regimes on the sawfish and its 
designated critical habitat. Ongoing research is also investigating 
habitat use and movements of juvenile sawfish in relation to salinity 
regimes.
    Comment 5: A reviewer stated that we should consider designating 
other areas that contain the same essential features included in the 
two nursery areas in southwest Florida, and specifically suggested 
Tampa Bay and the Indian River Lagoon. This peer reviewer stated that 
we did not appropriately consider the amount of suitable habitat that 
remains outside of the proposed critical habitat areas, specifically 
within Tampa Bay and the Indian River Lagoon, given that the species 
may need additional nursery areas in the future for recovery.
    Response: We do recognize that the sawfish may need additional 
nursery areas for its recovery, that red mangroves and shallow 
euryhaline habitats exist outside the designated areas, and that 
smalltooth sawfish were historically common in some of those areas 
(e.g., Indian River Lagoon). However, sawfish also historically appear 
to have used areas that do not contain mangroves as nursery areas. The 
key conservation function of the critical

[[Page 45357]]

habitat designation is to facilitate recruitment into the adult 
population by protecting juvenile nursery areas. Based on the best 
available data and our understanding of what constitutes a nursery area 
for sawfish, the areas designated as critical habitat are the only 
areas that are currently nursery areas. We cannot predict with any 
certainty what new nursery areas may be established by the species. If 
new information identifies nursery areas outside of the designated 
critical habitat, NMFS will consider revising this rule.
    Comment 6: A reviewer suggested a more complete Executive Summary 
in the 4(b)(2) Report that includes the conclusions of the Economic and 
Other Relevant Impacts sections of the report.
    Response: We have revised the Executive Summary in the Final 
4(b)(2) Report to include the conclusions of all three impact sections 
of the report.
    Comment 7: A reviewer requested more detail on the increased 
probability of recovery of listed species as a result of designating 
critical habitat and requested a long-term study of the relationship 
between recovery rates of listed species and critical habitat 
designation.
    Response: The commenter's suggestion is noted. NMFS does evaluate 
the recovery progress of listed species, including submitting reports 
to Congress every 2 years on the status of efforts to develop and 
implement recovery plans for listed species under our purview, and on 
the status of all species for which recovery plans have been developed 
under section 4(f)(3)) of the ESA. Between October 1, 2006, and 
September 30, 2008, of the 59 domestic endangered or threatened species 
listed under the ESA, 22 (37 percent) were stabilized or improving; 17 
(29 percent) were known to be declining; and 20 (34 percent) were 
unknown or mixed in their status (https://www.nmfs.noaa.gov/pr/pdfs/laws/esabiennial2008.pdf). A recent study suggests listed species with 
designated critical habitat for 2 or more years may be more than twice 
as likely to have an improving population trend and less than half as 
likely to be declining compared to listed species without designated 
critical habitat (Taylor et al., 2005). Of the 59 domestic listed 
species under NMFS' purview, 39 have designated critical habitat, and 
16 of these species were judged to be stable or improving in the 2008 
report discussed above. Most of these designations have not been in 
place for 2 years or longer, and it is likely too early in the recovery 
process to judge the contribution of critical habitat to the recovery 
of these species. It should also be noted that though critical habitat 
protects features essential to a species' conservation from destruction 
or adverse modification by Federal actions, critical habitat is not 
intended to be the sole activity that brings about species' recovery.
    Comment 8: A reviewer asked if saving the smalltooth sawfish would 
save the local fishing industry and whether the rule protects mangroves 
or smalltooth sawfish.
    Response: Our primary goal is to support the key conservation 
objective for the species by protecting the essential features in its 
nursery areas. The rule is not intended to directly protect smalltooth 
sawfish from harm, but rather is intended to promote its recovery by 
preventing destruction or adverse modification of the physical and 
biological habitat features essential to its conservation that may 
result from Federal actions. The Final 4(b)(2) Report considered, in 
the analysis of other relevant impacts, that the critical habitat 
designation is likely to provide additional protections to mangrove 
habitat and the fisheries that depend on those habitats. The fishing 
industry may, therefore, also benefit from this designation.

Public Comments

A. Comments on Providing the Public Adequate Notice on the Proposed 
Rule
    Comment 1: We received several comments stating we did not provide 
adequate notice for public review and comment on the proposed rule.
    Response: NMFS published the proposed critical habitat rule for the 
smalltooth sawfish on November 20, 2008 (73 FR 70290), and requested 
pubic comments by January 20, 2009. On December 9, 2008, we published a 
notice in the Federal Register (73 FR 74681) announcing the dates, 
times, and locations of two public hearings to receive public comments 
on the proposed critical habitat rule. In addition to the Federal 
Register notice announcing the public hearings, we advertised the 
hearings in relevant local newspapers (News-Press of Ft. Myers on 
December 8, 2008; Naples-News on December 14, 2008). During the public 
comment period, NMFS received several requests to extend the public 
comment period. On January 29, 2009 (74 FR 5141), NMFS extended the 
public comment period to February 13, 2009. We believe the public 
received adequate opportunity to review and comment on the proposed 
rule.
B. Comments on the Available Data for the Designation
    Comment 2: Several commenters reacted to the statements in the 
proposed rule describing the incomplete information on the habitat 
usage patterns of the species, particularly adults, and suggested we 
have incomplete information on which to base the designation. Another 
commenter suggested we should do more research on the species before we 
designate critical habitat. Several commenters expressed concern about 
basing the rule on data from 2003 or earlier.
    Response: The ESA requires we use the best available scientific 
information to support the proposed designation. It also provides that 
we may take up to 1 additional year after a species is listed, if 
critical habitat is not determinable at the time of listing. Beyond 
that year, during which NMFS further studied the species' habitat 
needs, we may not wait to designate critical habitat to conduct more 
research. We used all available information sources (literature, 
research data, government agencies, and public encounter data) to 
identify the specific areas and the essential features. No other 
sources of data on the species were identified during the public 
comment period. In contrast to the lack of information on specific 
habitat usage that currently precludes designation of critical habitat 
areas for adult smalltooth sawfish, we believe the available 
information provides a sound basis for designating nursery areas used 
by juveniles as critical habitat. Finally, the rule is based on 
juvenile encounter data from 1998 through the present; a NMFS staff 
member misstated the applicability of the ``time of listing'' provision 
in the statute at one of the public hearings--that applies to 
identifying the occupied range of the species.
    Comment 3: A commenter suggested we re-evaluate the critical 
habitat designation in 5 years to determine the habitat needs for 
adults.
    Response: We have not identified adult aggregation, mating, and/or 
pupping areas, and no information on historic aggregation, mating, and/
or pupping sites exists, but these aspects of the species' life history 
are being investigated by researchers. If information on adult 
smalltooth sawfish becomes available which suggests areas that may be 
essential to the conservation of the species, we will consider revising 
the critical habitat designation.
    Comment 4: A commenter requested information on how the encounter 
data were collected and how far the animals travel up the Cape Coral 
canals.

[[Page 45358]]

Additionally, the commenter wanted to know which canals smalltooth 
sawfish are using.
    Response: Smalltooth sawfish encounter data from FWCC and MML's 
were used to develop the proposed rule. Encounter data are reported by 
the public and by researchers. Recreational and commercial fishers, 
boaters, divers, and the general public report smalltooth sightings and 
captures to the FWCC and MML. The encounter reports may include 
information such as the date, location, size of animal, water depth, 
benthic habitat in the area, the type of fishing gear used, and 
photographs, etc. Information gathered by researchers is similar to 
what the public reports but may include more details about the animal 
and may include specific movement information for tagged animals. 
Encounter data and FWCC directed research have documented smalltooth 
sawfish use of multiple canals within the Cape Coral canal system; each 
canal is not named thus we cannot list them specifically. Ongoing 
smalltooth sawfish research conducted by the FWCC has shown that tagged 
animals travel deep into the canals and may use the canals for months 
at a time, making daily excursions into the Caloosahatchee River. 
Existing encounter data support the usage of the Cape Coral canal 
system where it is accessible to smalltooth sawfish.
    Comment 5: One commenter questioned the credibility of sightings 
and encounter data, reported by fishermen, as a basis for the rule.
    Response: There are a number of indices of the reliability and 
suitability of encounter and sightings data available for this 
designation. First, the encounter reporting programs are longstanding 
and the researchers involved have established trust and personal 
relationships with a good portion of the fishing community involved in 
reporting encounters or recommending to others that they report 
encounters. MML and FWCC only include encounter reports in their 
databases when the reports have met some measures of credibility, for 
example, if the description of the fish is consistent with the 
morphological characteristics of the species. The encounter data have 
also been validated in a number of respects by scientific research 
carried out by the organizations that maintain the encounter databases.
    Comment 6: Several commenters stated they had never seen and/or 
caught a smalltooth sawfish in some of the areas (San Carlos Bay and 
southwest Florida) proposed for designation.
    Response: Encounter data, which includes reports from recreational 
and commercial fishers, researchers, and snorkelers, indicate the 
species is encountered within San Carlos Bay and that most encounters 
of juveniles occur in southwest Florida. Sawfish are highly endangered 
benthic fish, and it is not surprising that even long-time local 
residents have never seen one.
C. Comments on Existing Resource Protections, Regulatory Burdens, and 
Rulemaking Requirements Generally
    Comment 7: A commenter asked if the President's Executive Order on 
Regulatory Review (74 FR 4435; January 26, 2009) would stop NMFS from 
publishing the critical habitat rule.
    Response: No, President Obama's Memorandum to the Heads of 
Executive Departments and Agencies, dated January 20, 2009, regarding 
additional administration review of rules published prior to January 
21, 2009, does not apply to this rule because the timing of the 
proposed and final smalltooth sawfish critical habitat rules is 
mandated under a court-approved settlement agreement.
    Comment 8: Several commenters stated that existing laws and 
regulations, including State laws, are currently in place to protect 
habitats covered by the proposed designation, and that an additional 
layer of government regulation should be avoided.
    Response: The commenter is correct in part. Existing laws and 
regulations are in place to protect marine and estuarine habitats, 
including mangroves. However, none of the laws or regulations 
applicable to the habitats included in the proposed designation provide 
complete protection to the habitats. In a wide variety of 
circumstances, existing laws and regulations allow for destruction of 
habitat, and in instances where mitigation may be required, off-site 
and out-of-kind mitigation are possible outcomes. Additionally, 
existing laws and regulations do not expressly require consideration of 
the conservation needs of the smalltooth sawfish in determining whether 
impacts to habitat are allowable or mitigations are acceptable. This 
final rule will provide unique additional protections to the critical 
habitat features essential to the sawfish's conservation, resulting in 
project modifications where existing laws would not require such 
modifications.
    Comment 9: A commenter stated that we did not need to protect 
habitat for the smalltooth sawfish because the Florida net ban has 
eliminated deaths from bycatch.
    Response: Florida voters approved a constitutional amendment 
banning the usage of most types of inshore nets in 1995. The net ban is 
extremely important in addressing a major threat to smalltooth sawfish, 
because their saws become entangled in the nets, and fishers often 
killed and/or removed the saw from captured animals. The net ban 
eliminated a great deal of smalltooth sawfish bycatch; however, the 
species is still caught as bycatch in several fisheries (shrimp 
trawling, bottom long-line fisheries, etc.). In addition to measures to 
prevent or limit take of listed species, the ESA requires NMFS to 
designate areas that meet the statute's definition of critical habitat, 
with discretion to consider excluding certain areas from a designation 
based on specific findings about the costs and benefits of a 
designation. As stated in the proposed rule, juvenile smalltooth 
sawfish use highly specific nearshore areas as nursery areas for the 
first several years of their lives, where vulnerable juveniles find 
protection from predators and ample food resources for early stage 
growth. In the areas we have identified as existing nursery areas, 
juvenile sawfish need several essential physical and biological 
features: red mangroves and shallow, euryhaline habitats characterized 
by water depths between the Mean High Water line and 3 ft (0.9 m) 
measured at Mean Lower Low Water. These features are essential to the 
conservation of the species because they support the key conservation 
function of facilitating recruitment of juveniles into the adult 
population. This conservation objective is not accomplished by the 
inshore net ban.
    Comment 10: A commenter stated they are concerned about the length 
of time it takes to complete section 7 consultations under the ESA, 
that NMFS takes a long time to complete section 7 consultation, and 
that these times will increase with designation of critical habitat.
    Response: Federal agencies are currently required to consult on 
actions that may affect the fish, including in the areas proposed for 
designation, in order to ensure their actions are not likely to 
jeopardize the continued existence of the species. Designated critical 
habitat does require a second, distinct analysis of potential effects 
of Federal actions: Federal agencies must ensure their actions are not 
likely to destroy or adversely modify critical habitat. Our analysis of 
impacts of the designation indicates that the designation will not 
require consultations for categories of Federal actions that are not 
already subject to consultation to avoid jeopardizing the species. 
Delays can occur during the section 7 review

[[Page 45359]]

process when NMFS is lacking the pertinent information needed to 
determine the effects on a species or its designated critical habitat. 
NMFS does not expect delays in the section 7 consultation process if we 
receive the necessary information to complete our analysis of the 
effects on the species and/or designated critical habitat. We will also 
work with interested Federal agencies to evaluate whether streamlined 
section 7 consultation procedures can be adapted for evaluating Federal 
actions that may affect the smalltooth sawfish, its designated critical 
habitat, or both.
    Comment 11: A commenter stated that since existing critical habitat 
for the American crocodile provides protection for the smalltooth 
sawfish, the proposed rule has overlapping protections and asked us how 
we would deal with the overlapping protections.
    Response: This is not correct. Smalltooth sawfish may use some of 
the same habitats utilized by the American crocodile along the 
Everglades coast, but the critical habitat designation and the listing 
protections for the American crocodile are established to promote the 
recovery and conservation of that species specifically. American 
crocodile designated critical habitat does not protect the physical and 
biological features essential for the conservation of the smalltooth 
sawfish. The U.S. Fish and Wildlife Service (FWS) has jurisdiction over 
the American crocodile, and NMFS has jurisdiction over the smalltooth 
sawfish. NMFS and FWS will consult under section 7 of the ESA for their 
respective species even though the critical habitat designation may 
over-lap geographically.
D. Comments on the Critical Habitat Boundaries and Areas Included or 
Omitted From the Designation
    Comment 12: One commenter suggested we used arbitrary boundaries 
(e.g., roads, county lines, etc.) in establishing the unit boundaries 
and suggested we should instead use habitat-based boundaries (e.g., 
creeks and mangroves). The commenter also suggested we include entire 
creeks and canal systems that are accessible to smalltooth sawfish near 
the proposed Charlotte Harbor Estuary Unit. The commenter proposed four 
specific changes in this regard: (1) The boundary located near the 
Myakka River should be moved up-river where the mangroves end at 
approximately 27[deg]4.500[min] N; (2) the boundary near Harborview 
Road, U.S. 41, and SR 776 should include Shell Creek extending to the 
dam and upriver to 27[deg]4.500[sec] N; (3) The southern extent of the 
Charlotte Harbor Estuary Unit boundary should be Wiggins Pass/
Calcohatchee River instead of the Charlotte/Lee County line; and (4) 
``back bay'' boundaries should include entire creek and canal systems 
in the Charlotte Harbor Estuary Unit.
    Response: We elected not to make the requested changes to the unit 
boundaries. The boundaries were chosen by first applying the Heupel et 
al. (2007) model for defining nursery areas to the juvenile sawfish 
encounter data. After broad areas being used as nursery areas were 
identified, the essential physical and biological features within these 
nursery areas were identified. The boundaries of the critical habitat 
units were identified in accordance with our regulations at 50 CFR 
424.02(c), using reference points and lines on topographic maps to 
describe the specific boundaries of the nursery areas. Roads, man-made 
structures, and county line or park boundaries were used instead of 
habitat boundaries (e.g., extent of red mangroves or entire creek 
systems) because they are easily identifiable by the public and because 
they represent the boundaries of the nursery areas.
    Comment 13: A commenter suggested we consider expanding the 
critical habitat designation to include unoccupied areas that could be 
essential to the species' conservation, and noted that the species used 
to be found in coastal areas as far distant from peninsular Florida as 
New York and Texas.
    Response: ESA section 3(5)(A)(ii) defines critical habitat to 
include specific areas outside the geographical area occupied at the 
time of listing if the areas are determined by the Secretary to be 
essential for the conservation of the species. Regulations at 50 CFR 
424.12(e) specify that we shall designate as critical habitat areas 
outside the geographical area presently occupied by a species only when 
a designation limited to its present range would be inadequate to 
ensure the conservation of the species. Habitat-based recovery criteria 
in the recovery plan suggest areas outside the current occupied range 
may be important to the species' recovery. However, based on the best 
available information, we cannot identify unoccupied areas that are 
currently essential to the conservation of the species. If information 
on essential features or habitats for the species becomes available, we 
will consider revising this critical habitat designation.
    Comment 14: A commenter suggested we include Estero Bay to Marco 
Island in the critical habitat designation because the area contains 
the essential features, and the areas are connected to the Charlotte 
Harbor Estuary Unit and the Ten Thousand Islands/Everglades Unit.
    Response: Areas within Estero Bay and Marco Island do contain some 
of the essential features described within the proposed critical 
habitat designation; however, red mangroves are much sparser and 
salinity is much more fully marine than in the designated units. We 
determined that this area between the designated units does not meet 
the definition of a nursery area for sawfish, and that juvenile sawfish 
are not likely to use the area to travel between the two designated 
nursery areas. Juvenile smalltooth sawfish are rarely encountered 
within these areas, and juvenile encounters in the area do not have a 
higher density than the mean density outside the area. Encounter data 
do not indicate juveniles repeatedly use the area over years, and no 
site fidelity pattern exists in the area. If new data indicate these 
areas are indeed nursery areas, we will consider revising the critical 
habitat designation.
    Comment 15: A commenter stated the scope of the designation is too 
broad and includes habitats that are not shallow or near mangrove 
roots. Two other commenters suggested the designation should be limited 
to targeted areas where NMFS has documented specific use of the areas.
    Response: As stated in the proposed rule, the features can be found 
unevenly dispersed throughout the proposed critical habitat boundaries. 
Limits on existing mapping methodologies make it infeasible to define 
the specific areas more finely than described herein. Therefore, there 
are locations within the critical habitat boundaries where the 
essential features do not exist (e.g., deep water areas). The 
regulatory impact of the critical habitat designation, however, flows 
entirely from the requirement to consult on Federal actions that may 
affect the critical habitat's essential features. If an action only 
impacts locations which do not contain either essential feature, the 
action would pose no effect to the critical habitat, and no section 7 
consultation would be required. We also believe that limiting the 
designation to areas where use has been documented at a specific place 
and time would not be an appropriate application of the ESA. Single 
encounter points would not encompass the full home ranges used by 
juveniles. Moreover, the ESA requires designation of critical habitat 
containing features essential to a species' conservation, and thus 
contemplates inclusion of areas containing features necessary for 
population growth.

[[Page 45360]]

Further, the available information on sawfish almost certainly does not 
document the existence of every juvenile using the nursery areas. We 
therefore disagree that the scope is too broad: the units are 
appropriately defined as the areas containing (but not composed 
entirely of) the essential features, and there is no regulatory impact 
of including embedded locations without the essential features.
E. Comment on Essential Features
    Comment 16: A commenter stated they had never seen seagrasses in 
the Cape Coral canals and could not understand why NMFS identified 
seagrasses as an essential component of the critical habitat.
    Response: Seagrasses are not an essential feature of the critical 
habitat.
F. Comments on the Draft 4(b)(2) Report and the Analysis of Economic 
Impacts
    Comment 17: One commenter noted an error in the Draft 4(b)(2) 
Report in the estimated values for mangrove-dependent fish species for 
2005.
    Response: NMFS acknowledges that these calculations were 
inaccurate, and they have been corrected in the Final 4(b)(2) Report. 
The value in the ``Pounds'' column label was listed in 1,000s of pounds 
but actually represented pounds. We removed the 1,000 from the column, 
and the column now reflects the correct poundage of landings. 
Additionally, the commenter noticed an error in the ``Value'' column 
which also indicated the values were in thousands of dollars. We 
corrected the errors in Tables 5, 7, 9, and 11 to reflect the correct 
values for both ``Pounds'' and ``Value.''
    Comment 18: Several commenters expressed unspecific concerns about 
potential economic impacts on communities and quality of life expected 
from the designation. A few commenters stated that NMFS did not address 
the economic impacts on the marine construction, real estate, and 
residential construction industries in the proposed rule and asked why 
the economic impacts cannot be more precisely measured.
    Response: The 4(b)(2) Report identifies and analyzes the expected 
economic impacts, including monetary costs on marine construction 
activities where feasible, associated with the proposed rule. Federal 
guidance on estimating the costs and benefits of proposed rules allows 
presenting economic impacts in qualitative metrics if monetization is 
not feasible or reliable (EO 12866). Administrative costs to Federal 
and third parties (e.g., permit applicants) expected to result from ESA 
section 7 consultations required by the designation were estimated by 
projecting the number of future consultations associated with the 
proposed rule. Projected future costs resulting from potential project 
modifications that may be required to avoid destruction or adverse 
modification of the designated critical habitat cannot be determined 
with any certainty given the uncertainty in, among other things, 
predicting the precise location and scope of future projects. The total 
incremental administrative costs for Unit 1 are estimated to range from 
$1,039,500 to $1,386,000 (depending on complexity of the consultation) 
over the 10-year planning period. The total incremental administrative 
costs for Unit 2 are estimated to range from $108,000 to $144,000 
(depending on complexity of the consultation) over the 10-year planning 
period. Most of these costs will be borne by Federal agencies involved 
in ESA section 7 consultation; maximum total projected administrative 
costs to third parties (e.g., permit applicants) due to all 85 future 
consultations are estimated to be $136,200 to $170,000 over the next 10 
years. The commenters did not provide us with specific information to 
determine any other potential future economic impacts from the proposed 
rule. We believe the 4(b)(2) Report provides the best information on 
predicting future section 7 consultation economic costs from the final 
rule. We have also responded to concerns about the rule's potential to 
impact specific existing activities in affected communities in the 
following section.
    Comment 19: One commenter stated that the analysis of potential 
economic impacts to single-family dock construction/repair projects 
identified in the 4(b)(2) report is inadequate because we did not 
identify costs for some of the potential project modifications that 
might be recommended to dock projects during section 7 consultation. 
The commenter stated that it is inappropriate for NMFS to decide not to 
consider exclusions from Unit 1 due to economic impacts in the absence 
of such information. The commenter suggested we could estimate economic 
impacts associated with the ``average percentage decrease in number of 
docks constructed per year due to time delays associated with the 
consultation process and as well as the percentage decrease in cost for 
construction due to reduced size.''
    Response: As we have explained in the rule and 4(b)(2) report, 
specific costs that may result from project modifications recommended 
by NMFS to avoid destruction or adverse modification of critical 
habitat cannot be determined in all instances because such costs are 
highly variable and depend on such unknown future variables as the 
specific scope and location of future projects. We think the 
commenter's suggested surrogate for future economic impacts associated 
with costs of dock project modifications would be too speculative. 
Further, a measure of the costs to third parties such as dock permit 
applicants from participation in the consultation process is provided 
in the 4(b)(2) report; this would include any costs due to delays. As 
stated in the rule and 4(b)(2) report, we believe the information 
available to project the numbers, types, and distribution of potential 
future Federal actions that may trigger ESA section 7 consultation, and 
identify the types of potential project modifications often associated 
with these types of projects, provides a reasonable basis for 
evaluating potential economic impacts of the designation, even though 
some of the impacts are only qualitatively identified. Our assessment 
projects that a limited scope of impacts will result from the 
designation (about 8 consultations per year in Unit 1). Consultation 
would be required for those projects even in the absence of the 
critical habitat designation, to protect the sawfish. Finally, the 
conservative approach to the assessment likely overestimates numbers of 
formal consultations and project modifications that may be required. On 
these bases, we do not believe evidence of economic impacts warrants 
our exercise of our discretion to consider excluding areas from the 
designation.
    Comment 20: One commenter stated that the rule has the potential to 
impact private property rights in dock/seawall replacement permits or 
new permits, and in dredging of canals to the extent that may 
constitute a taking of private property.
    Response: The takings implications of the rule were evaluated. The 
rule will not result in a physical invasion of private property, or a 
complete denial of all use or value of any private property interest. 
Based on the importance of the societal interest in designating 
critical habitat for endangered species, and the limited nature of 
impacts to private property that may result from the designation 
identified in the 4(b)(2) report, we determined that the designation 
will not result in a regulatory taking of private property.
    Comment 21: One commenter stated that we did not justify nor 
provide documentation for our conclusion that secondary costs to local 
or regional

[[Page 45361]]

economies are unlikely to result from the designation.
    Response: We disagree. We believe the 4(b)(2) impacts report 
supports our determination that impacts to the scale that affects local 
or regional economies are not likely to result from the designation. We 
do not expect measurable reductions in regional revenues or employment 
or growth to result from the types of project modifications that may be 
required to federally permitted actions to avoid destruction or adverse 
modification of critical habitat. We received no information to the 
contrary from this or other commenters, including Federal agencies most 
likely to be required to consult with NMFS as a result of the 
designation. We contacted relevant planning agencies in developing our 
impacts report, and received no reports of planned projects or 
developments over the next 10 years that would require ESA consultation 
and that would be of a scale to have impacts on local or regional 
economies if they required modifications due to the critical habitat 
designation.
G. Comments on Potential Impacts of the Designation on Ongoing 
Activities
    Comment 22: The U.S. Army Corps of Engineers (ACOE) requested we 
exclude authorized Federal channels (Gordon Pass/Naples to Big Marco, 
Key West Harbor, Everglades Harbor, Largo Sound, Charlotte Harbor, Key 
West Bight & Garrison Bight, Ft. Myers Beach/Matanzas Pass, and the 
Intracoastal Waterway Caloosahatchee River to Anclote River) and 
existing residential canals from the critical habitat designation. Two 
municipalities also requested that residential canals and waterways in 
their boundaries be excluded where these systems are maintained at 
depths greater than 3 ft. (0.9 m) at MLLW, and do not provide the 
essential features. Several commenters requested exemptions for 
dredging of channels or canals in existence at the time of the 
designation.
    Response: Exclusions from a critical habitat designation may be 
proper where the benefits of exclusion outweigh the benefits of 
inclusion of areas in a designation. Exclusions are not applicable to 
areas, like those proposed by the ACOE, which will not be impacted by 
the designation because they do not provide the essential features of 
critical habitat and will not require section 7 consultation for 
activities in those areas. As stated in the proposed rule, all existing 
man-made structures such as boat ramps, docks, pilings, maintained 
channels or marinas that do not provide the essential features that are 
essential to the species' conservation are not part of this 
designation. The three existing federally authorized channels located 
within the proposed designation are the Charlotte Harbor, Ft. Myers 
Beach (Matanzas Pass), and portions of the Intracoastal Waterway in the 
Caloosahatchee River. These existing Federal channels have been 
authorized to be dredged and maintained to depths greater than 3 ft 
(0.9 m) at MLLW. The channels may contain the euryhaline component of 
the shallow habitat essential feature, but they do not contain the 
water depth component, or the red mangrove essential feature, and thus 
would not be impacted by the designation. This also applies to 
residential canals, or portions of these canals, that have been 
authorized and dredged and maintained to depths greater than 3 ft (0.9 
m) at MLLW. However, it is also important to note that the edges or 
banks of maintained channels or canals outside the footprint authorized 
to be dredged and maintained, may provide the essential features.
    Comment 23: The ACOE requested a description of what is considered 
a maintained channel.
    Response: We consider a maintained channel to be a channel that is 
dredged periodically, as necessary, to maintain its original authorized 
dimensions (depth, width, etc.).
    Comment 24: Several commenters expressed concern that the 
designation of smalltooth sawfish critical habitat would prohibit 
marine construction or maintenance of existing private or public 
infrastructure (i.e., maintenance dredging, docks, piers, jetties, boat 
ramps and seawalls etc.).
    Response: If a proposed project authorized, funded, or carried out 
by a Federal agency includes construction of a new structure, and the 
structure may affect a listed species or its designated critical 
habitat, the standard ESA section 7 consultation requirement would 
apply. Proposed projects may require modifications, if they would 
destroy or adversely modify critical habitat. Projects would only be 
prohibited if there were no modifications or alternatives to the 
proposed project that would avoid destruction or adverse modification 
of critical habitat. If future projects in the areas covered by the 
designation are similar in nature as past activities, based on our 
analysis of impacts, we believe modifications should be available t