25411980, 68CER21-1 - Florida Administrative Rules, Law, Code, Register

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Notice: 25411980

Notice of Emergency Rule

Department:

FISH AND WILDLIFE CONSERVATION COMMISSION

Division:

Manatees

Overview

RULE:

68CER21-1

Manatee Protection Zone for FPL Cape Canaveral Energy Center in Brevard County

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:

Large numbers of manatees congregating as part of the temporary field response operations at the Florida Power & Light Cape Canaveral Energy Center’s (FPL CCEC) is likely to cause a navigational hazard to any boaters utilizing the waterway within the area that the congregation is occurring. This hazard creates an immediate public safety issue that could result in injury to the public due to collisions or in the process of attempting to avoid such collisions. Implementing a No Entry Zone in the waters immediately adjacent to and within the intake canal of the FPL CCEC can protect both watercraft operators and manatees from bodily harm that could be sustained during a collision. 

Starting in December of 2020, the number of manatee mortalities reported along Florida’s Atlantic coast has significantly exceeded the baseline annual average for the Atlantic coast management unit. The increase in manatee mortalities prompted the declaration of an Unusual Mortality Event (UME) by the U.S. Fish and Wildlife Service (USFWS). Ongoing investigations indicate starvation as the primary cause of death due to a decline in critical food sources as a result of poor water quality within the Indian River Lagoon (IRL) and surrounding areas. Preliminary data suggest that manatees may prioritize seeking warm water over finding forage, making UME response efforts during the colder months critically important. While the entire IRL is important habitat for manatees throughout the year, certain areas within the IRL, such as the waters near FPL CCEC, are more heavily used in winter months when manatees seek sources of warm water.

Temporary field response activities, including biological monitoring, live animal rescue, and a targeted supplemental feeding trial, will take place at the FPL CCEC in areas adjacent to the large congregation of a manatees seeking warm water during winter months. The large presence of manatees in the area may also lead to a higher incidence in collisions between vessels and manatees if the area is left unregulated. Boating safety is already a concern at the FPL CCEC as interactions with vessels, including manatee mortality due to watercraft, have been documented in this area since the 1970s. The likelihood of public presence increasing in this narrow waterway to observe the congregation of manatees poses additional safety concerns for operators and passengers of motorized and non-motorized vessels (e.g., paddle craft), including those staff and volunteers participating in the efforts. Additionally, an increase in the presence of waterway users may result in the direct disturbance of manatees and abandonment of the warm-water refuge. 

The creation of a No Entry Zone in the waters immediately adjacent to and within the intake canal of the FPL CCEC will 1) protect watercraft operators and manatees from bodily harm that could be sustained during a collision and 2) reduce unintended harassment of manatees from the public while field response efforts are underway.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES:

Per Section 68C-22.001, F.A.C., the Commission provided notice to the public by website, on December 6, 2021, in the materials for the “Unusual Manatee Mortality” item on the Commission Meeting agenda, that FWC would pursue an emergency rule creating a temporary No Entry Zone if a temporary field response station was designated with the USFWS Fish and Wildlife Service. The Commission also provided notice on December 8, 2021, in the Frequently Asked Questions related to this Unusual Manatee Mortality event that a “temporary no-entry zone” at the location of the supplemental feeding trial may be put into place. Additionally, prior to adoption of the emergency rule, staff presented information about the emergency rule to the Commissioners and the public on December 15, 2021, during FWC’s regularly scheduled Commission Meeting, and the public was provided an opportunity to speak. The procedures followed provide at least the procedural protection given by other statutes, the State Constitution or the U.S. Constitution. Given the current decline of available food sources, the increased manatee mortality rate, and the onset of winter temperatures, this temporary No Entry Zone is fair and necessary to protect both vessel operators and manatees during this manatee field response which includes rescue, monitoring, and supplemental feeding. In the creation of this emergency rule, the agency is taking the limited action necessary for human and manatee protection, the zone being sought is specific to the small area of the waterway we anticipate being affected by the UME Response, and therefore this limited, temporary emergency zone protects the public interest, provides protection for the public safety concerns, and still meets the agency’s statutory charge of manatee protection.

SUMMARY:

Emergency rule 68CER21-1 establishes a 90-day “No Entry Zone” within and surrounding the waters of the FPL Cape Canaveral Energy Center in-take canal, in Brevard County.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:

Michelle Pasawicz, Florida Fish and Wildlife Conservation Commission, 620 South Meridian Street 6A, Tallahassee, Florida 32399-1600, (850) 922-4330 or ManateeRuleComments@MyFWC.com.

PRINT PUBLISH DATE:

12/30/2021 Vol. 47/251

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=68CER21-1&PDate=12/30/2021&Section=4

REFERENCE MATERIALS:

No reference(s).

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