New Coral Designations Will Impact Development Applications
Florida, Puerto Rico and the U.S. Virgin Islands will be Impacted
On August 27, 2014, the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration listed 20 additional corals as Threatened under the Endangered Species Act. The new coral designations will impact development applications in Florida, Puerto Rico, and the U.S. Virgin Islands. Five of the listed species are known to exist in Florida, Puerto Rico and the U.S. Virgin Islands. The remainder of the listed species are found only in the Pacific.
The newly listed Florida/Caribbean Corals include:
- Mycetophyllia ferox
- Dendrogyra cylindrus
- Orbicella annularis
- Orbicella faveolata
- Orbicella franksi
These corals join the Acropora cerivicornis (Staghorn) and Acropora palmata (Elkhorn) corals which were listed as Threatened in 2005 and 2006.
Development Activities Impacted
Private developers submitting applications to the U.S. Army Corps of Engineers for permits authorizing impact to the coastal waters of the United States should note this listing and the additional rulemakings that will follow regarding critical habitat designation will likely impact both the scope of permit review and permit approval timelines.
The new listing increases the likelihood that Section 7(a)(2) consultation between the U.S. Army Corps of Engineers, other federal agencies and the National Marine Fisheries/U.S Fish and Wildlife Service will be required on permits that authorize activities that have the potential to impact coral. According to the rule, the following actions are expected to result in consultation:
- Energy projects
- Discharge of pollution from point sources
- Non-point source pollution
- Setting of water quality standards
- Vessel traffic
- Aquaculture facilities
- Military activities
- Fisheries management practices
Coral Evaluation Necessary for Marine-Based Projects
If your project includes a marine component, evaluating coral and other ESA impact issues prior to submittal is key to expediting review and providing the agency reviewer with the information required to complete the necessary consultation under the statute. Until additional rulemaking occurs, there is no guidance as to appropriate conservation methods or acceptable limits on project impacts to the newly listed corals. Be prepared for increased negotiation of permit conditions and discussions concerning appropriate mitigation for any impacts anticipated to occur.
Additional Rulemaking Process to Follow
By issuing the final rule NOAA concluded a two year rulemaking process, but left many issues open for additional future rule making, including designating critical habitat for the listed corals, identifying conservation methods, and determining whether Section 9 (a) prohibitions will be applicable to the newly listed corals.
The decision includes a lengthy summary of the analysis and basis for the decision. A total of 66 corals were considered for listing. In addition to reviewing each of the potential candidates, the decision made some general findings which may be applicable in future rulemakings related to clonal species. For purposes of determining Endangered/Threatened status the entity that is “counted” as an individual is a physiological colony (i.e. a group of coral that is able to be designated in the field as a discrete colony) as opposed to a single polyp. Abundance was measured with regard to primary habitat (the reefs) and not with regard to other potential habitats (coral growing outside of reefs).
Top Threats to Coral Extinction
In accordance with the ESA, the causes for potential extinction were identified, although NOAA acknowledged the uncertainty of the science regarding climate change and the lack of comprehensive data on corals. The top threats to corals worldwide were identified as:
- Ocean warming (causing bleaching)
- Ocean acidification (caused by higher atmospheric CO2)
- Trophic effects of fishing
- Sea-level rise
- Collection and trade
Of these, ocean warming, disease and ocean acidification were rated as the greatest threats in the foreseeable (through 2100) future. However, the decision noted the localized historic impacts of other threats like sedimentation and nutrients, particularly in the U.S. Virgin Islands.
A full copy of the decision can be obtained at: https://www.fisheries.noaa.gov/stories/2014/08/docs/final_coral_rule.pdf
In case you are wondering what the listed coral look like, I went diving and took pictures of several of the recently listed species at Cane Bay, St. Croix, USVI this weekend. Orbicella faveolata is the globby looking coral in the middle of this photo.