[Federal Register: March 19, 2003 (Volume 68, Number 53)]
[Rules and Regulations]
[Page 13369-13495]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr03-15]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Gulf Sturgeon; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI23
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No.; I.D. 020522126-3051-02]
RIN 0648-AQ03
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Gulf Sturgeon
AGENCY: Fish and Wildlife Service (FWS), Interior, and National Marine
Fisheries Service (NMFS), National Oceanic and Atmospheric
Administration, Commerce.
ACTION: Final rule.
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SUMMARY: We, FWS and NMFS, collectively ``the Services,'' designate
critical habitat for the Gulf sturgeon (Acipenser oxyrinchus desotoi),
a threatened species listed under the Endangered Species Act of 1973,
as amended (Act). We designate 14 geographic areas among the Gulf of
Mexico rivers and tributaries as critical habitat for the Gulf
sturgeon. These 14 geographic areas (units) encompass approximately
2,783 river kilometers (rkm) (1,730 river miles (rmi)) and 6,042 square
kilometers (km2) (2,333 square miles (mi2)) of
estuarine and marine habitat.
Critical habitat identifies specific areas that are essential to
the conservation of a listed species, and that may require special
management considerations or protection. Section 7(a)(2) of the Act
requires that each Federal agency shall, in consultation with and with
the assistance of the Services, insure that any action authorized,
funded or carried out by such agency is not likely to jeopardize the
continued existence of an endangered or threatened species or result in
the destruction or adverse modification of critical habitat. Section 4
of the Act requires us to consider economic and other relevant impacts
of specifying any particular area as critical habitat. We solicited
data and comments from the public on all aspects of the proposal,
including data on economic and other impacts of the designation.
DATES: The effective date of this rule is April 18, 2003.
ADDRESSES: The complete administrative record, including comments and
materials received, as well as supporting documentation, used in the
preparation of this final rule are available for public inspection, by
appointment, during normal business hours at the Panama City Field
Office, U.S. Fish and Wildlife Service, 1601 Balboa Avenue, Panama
City, Florida 32405. Copies of the final rule, economic analysis, and
information regarding this critical habitat designation are available
on the Internet at http://alabama.fws.gov/gs/.
FOR FURTHER INFORMATION CONTACT: Gail Carmody, Field Supervisor, Panama
City Field Office (see ADDRESSES section) (telephone 850/769-0552;
facsimile 850/763-2177), or Stephania Bolden, Fishery Biologist,
National Oceanic and Atmospheric Administration (NOAA) Fisheries,
Southeast Regional Office, 9721 Executive Center Drive North, St.
Petersburg, Florida 33702 (telephone 727/570-5312; facsimile 727/570-
5517). Information regarding this designation is available in alternate
formats upon request.
SUPPLEMENTARY INFORMATION:
Background
The Gulf sturgeon (Acipenser oxyrinchus (=oxyrhynchus) desotoi),
also known as the Gulf of Mexico sturgeon, is an anadromous fish
(breeding in freshwater after migrating up rivers from marine and
estuarine environments), inhabiting coastal rivers from Louisiana to
Florida during the warmer months and overwintering in estuaries, bays,
and the Gulf of Mexico. It is a nearly cylindrical primitive fish
embedded with bony plates or scutes. The head ends in a hard, extended
snout; the mouth is inferior and protrusible and is preceded by four
conspicuous barbels. The tail (caudal fin) is distinctly asymmetrical,
the upper lobe is longer than the lower lobe (heterocercal). Adults
range from 1.2 to 2.4 meters (m) (4 to 8 feet (ft)) in length, with
adult females larger than males. The Gulf sturgeon is distinguished
from the geographically disjunct Atlantic coast subspecies (A. o.
oxyrinchus) by its longer head, pectoral fins, and spleen (Vladykov,
1955; Wooley, 1985). King et al. (2001) have documented substantial
divergence between A. o. oxyrinchus and A. o. desotoi using
microsatellite DNA testing.
Distribution and Status
Historically, the Gulf sturgeon occurred from the Mississippi River
east to Tampa Bay. Its present range extends from Lake Pontchartrain
and the Pearl River system in Louisiana and Mississippi east to the
Suwannee River in Florida. Sporadic occurrences have been recorded as
far west as the Rio Grande River between Texas and Mexico, and as far
east and south as Florida Bay (Wooley and Crateau, 1985; and Reynolds,
1993).
In the late 19th century and early 20th century, the Gulf sturgeon
supported an important commercial fishery, providing eggs for caviar,
flesh for smoked fish, and swim bladders for isinglass, a gelatin used
in food products and glues (Huff, 1975; and Carr, 1983). Gulf sturgeon
numbers declined due to overfishing throughout most of the 20th
century. The decline was exacerbated by habitat loss associated with
the construction of water control structures, such as dams and sills
(submerged ridge or vertical wall of relatively shallow depth
separating two bodies of water), mostly after 1950. In several rivers
throughout the species' range, dams have severely restricted sturgeon
access to historic migration routes and spawning areas (Boschung, 1976;
Wooley and Crateau, 1985; and McDowall, 1988).
On September 30, 1991, we listed the Gulf sturgeon as a threatened
species under the Act (16 U.S.C. 1531 et seq.) (56 FR 49653). Other
threats and potential threats identified in the listing rule included
modifications to habitat associated with dredged material disposal,
desnagging (removal of trees and their roots), and other navigation
maintenance activities; incidental take by commercial fishermen; poor
water quality associated with contamination by pesticides, heavy
metals, and industrial contaminants; aquaculture and incidental or
accidental introductions; and the Gulf sturgeon's slow growth and late
maturation. The Gulf sturgeon listing rule and the Gulf Sturgeon
Recovery/Management Plan (FWS et al., 1995), which was approved by the
Services and the Gulf States Marine Fisheries Commission, provide a
more detailed discussion of the reasons for the species' decline and
threats to surviving populations (available by request or at the FWS
Internet site, see ADDRESSES).
The Gulf Sturgeon Recovery/Management Plan (FWS et al., 1995)
recommended that genetic studies be done to determine geographically
distinct management units. Some work in this regard has been completed
(Stabile et al., 1996), but we have not formally adopted management
units at this time. For purposes of this final rule, we have used the
term subpopulation to subdivide the Gulf sturgeon population
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based on geography, degree of connectedness, and genetic interchange
(Lande and Barrowclough, 1987; and King et al., 2001). Seven
subpopulations are described in the ``Critical Habitat Unit
Descriptions'' section of this rule.
Feeding Habits
Gulf sturgeon feeding habits in freshwater vary depending on the
fish's life history stage (i.e., young-of-the-year, juvenile, subadult,
adult). Young-of-the-year Gulf sturgeon remain in freshwater feeding on
aquatic invertebrates and detritus approximately 10 to 12 months after
spawning occurs (Mason and Clugston, 1993; and Sulak and Clugston,
1999). Juveniles (less than 5 kg (11 lbs) are believed to forage
extensively and exploit scarce food resources throughout the river,
including aquatic insects (e.g., mayflies and caddisflies), worms
(oligochaetes), and bivalve molluscs (Huff, 1975; and Mason and
Clugston, 1993). Juvenile (ages 1 to 6) Gulf sturgeon collected in the
Suwannee River are trophically active (foraging) near the river mouth
at the estuary, but trophically dormant (not foraging) in summer
holding areas upriver--a portion of the juvenile population reside and
feed year round near the river mouth at the estuary, not just in winter
(K. Sulak, U.S. Geological Survey (USGS), pers. comm. 2002). In the
Choctawhatchee River, juvenile (ages 1 to 6) Gulf sturgeon did not
remain near the estuary at the river mouth for the entire year,
instead, they were located during winter months in Choctawhatchee Bay
and returned upriver to resting areas in the spring (F. Parauka, FWS,
pers. comm. 2002). Subadult (age 6 to sexual maturity) and adult
(sexually mature) Gulf sturgeon do not feed in freshwater (Wooley and
Crateau, 1985; and Mason and Clugston, 1993).
Many reports indicate that adult and subadult Gulf sturgeon lose a
substantial percentage of their body weight while in freshwater (Wooley
and Crateau, 1985; Mason and Clugston, 1993; and Clugston et al., 1995)
and then compensate the loss during winter feeding in the estuarine and
marine environments (Wooley and Crateau, 1985; and Clugston et al.,
1995). Gu et al. (2001) tested the hypothesis that subadult and adult
Gulf sturgeon do not feed significantly during their annual residence
in freshwater by comparing stable carbon isotope ratios of tissue
samples from subadult and adult Suwannee River Gulf sturgeon and their
potential freshwater and marine food sources. A large difference in
isotope ratios between freshwater food sources and fish muscle tissue
suggests that subadult and adult Gulf sturgeon do not feed
significantly in freshwater. The isotope similarity between Gulf
sturgeon and marine food resources strongly indicates that this species
relies almost entirely on the marine food web for its growth (Gu et
al., 2001).
Once subadult and adult Gulf sturgeon leave the river, having spent
at least 6 months in the river fasting, we presume that they
immediately begin feeding. Upon exiting the rivers, Gulf sturgeon are
found in high concentrations near their natal river mouths. Lakes and
bays at the mouths of the river systems where Gulf sturgeon occur are
important because they offer the first opportunity for Gulf sturgeon
exiting their natal rivers to forage. Gulf sturgeon must be able to
consume sufficient quantities of prey while in estuarine and marine
waters to regain the weight they lose while in the river system and to
maintain positive growth on a yearly basis. In addition, reproductively
active Gulf sturgeon require additional food resources to obtain
sufficient energy necessary for reproduction (Fox et al., 2002; and D.
Murie and D. Parkyn, University of Florida (UF), pers. comm. 2002).
Adult and subadult Gulf sturgeon, while in marine and estuarine
habitat, are thought to forage opportunistically (Huff, 1975),
primarily on benthic (bottom dwelling) invertebrates. Gut content
analyses have indicated that the Gulf sturgeon's diet is predominantly
amphipods, lancelets, polychaetes, gastropods, shrimp, isopods,
molluscs, and crustaceans (Huff, 1975; Mason and Clugston, 1993; Carr
et al., 1996b; Fox et al., 2000; and Fox et al., 2002). Gulf sturgeon
from the Suwannee River subpopulation are known to forage on
brachiopods (Murie and Parkyn, pers. comm. 2002); however, this is not
a documented prey item of other subpopulations. Ghost shrimp
(Lepidophthalmus louisianensis) and the haustoriid amphipod
(Lepidactylus spp.) are strongly suspected to be important prey for
adult Gulf sturgeon over 1 m (3.3 ft) (Heard et al., 2000; and Fox et
al., 2002). This hypothesis is based on the following evidence: (1)
Gulf sturgeon have been consistently located and observed actively
feeding in areas where numerous burrows similar to those occupied by
ghost shrimp exist (Fox et al., 2000) and in areas having a high
density of ghost shrimp and haustoriid amphipods (Heard et al., 2000),
(2) the digestive tracts of two adult Gulf sturgeon that died during
netting operations contained numerous ghost shrimp (Fox et al., 2000),
(3) stomach contents of a 30 kg (67 lb) sturgeon taken in the upper
portion of Choctawhatchee Bay contained more than 100 individual
haustoriid amphipods and 67 ghost shrimp (Heard et al., 2000), and (4)
approximately one-third of 157 sturgeon guts analyzed by Carr et al.
(1996b) contained exclusively brachiopods and ghost shrimp.
Reproduction
Gulf sturgeon are long-lived, with some individuals reaching at
least 42 years in age (Huff, 1975). Age at sexual maturity for females
ranges from 8 to 17 years, and for males from 7 to 21 years (Huff,
1975). Gulf sturgeon eggs are demersal (they are heavy and sink to the
bottom), adhesive, and vary in color from gray to brown to black
(Vladykov and Greeley, 1963; Huff, 1975; and Parauka et al., 1991).
Chapman et al. (1993) estimated that mature female Gulf sturgeon
weighing between 29 and 51 kg (64 and 112 lb) produce an average of
400,000 eggs. Habitat at egg collection sites consists of one or more
of the following: limestone bluffs and outcroppings, cobble, limestone
bedrock covered with gravel and small cobble, gravel, and sand
(Marchant and Shutters, 1996; Sulak and Clugston, 1999; Heise et al.,
1999a; Fox et al., 2000; and Craft et al., 2001). On the Suwannee
River, Sulak and Clugston (1999) suggest a dense matrix of gravel or
cobble is likely essential for Gulf sturgeon egg adhesion and the
sheltering of the yolk sac larvae, and is a habitat spawning adults
apparently select. Other substrates identified as possible spawning
habitat include marl (clay with substantial calcium carbonate),
soapstone, or hard clay (W. Slack, Mississippi Museum of Natural
Science (MMNS), pers. comm. 2002; and F. Parauka, pers. comm. 2002).
Water depths at egg collection sites ranged from 1.4 to 7.9 m (4.6 to
26 ft), with temperatures ranging from 18.2 to 23.9 degrees Celsius
([deg]C) (64.8 to 75.0 degrees Fahrenheit ([deg]F)) (Fox et al., 2000;
Ross et al., 2000; Craft et al., 2001). Laboratory experiments
indicated optimal water temperature for survival of Gulf sturgeon
larvae is between 15 and 20 [deg]C (59 and 68 [deg]F), with low
tolerance to temperatures above 25 [deg]C (77 [deg]F) (Chapman and
Carr, 1995). Researchers hypothesize that spawning must take place
where the hydrological and chemical settings are appropriate for gamete
(mature reproductive cell) function, and temperature, pH, and dissolved
oxygen conditions are stable and appropriate for embryonic and yolk sac
larval development (Sulak and Clugston, 1999).
Sulak and Clugston (1999) suggested that sturgeon spawning activity
in the Suwannee River is related to the phase
[[Page 13372]]
of the moon, but only after the water temperature has risen to 17
[deg]C (62.6 [deg]F). Other researchers however, have found little
evidence of spawning associated with lunar cycles (Slack et al., 1999;
and Fox et al., 2000). Spawning in the Suwannee River occurs during the
general period of spring high water, when ionic conductivity and
calcium ion concentration are most favorable for egg development and
adhesion (Sulak and Clugston, 1999). Fox et al. (2002) found no clear
pattern between timing of Gulf sturgeon entering the river and flow
patterns on the Choctawhatchee River. Ross et al. (2001b) surmised that
the high flows in early March were a cue for sturgeon to begin their
upstream movement in the Pascagoula River.
Atlantic sturgeon (A. oxyrinchus) exhibit a long inter-spawning
period, with females spawning at intervals ranging from every 3 to 5
years, and males every 1 to 5 years (Smith, 1985). It is believed that
Gulf sturgeon exhibit similar spawning periodicity, as male Gulf
sturgeon are capable of annual spawning, and females require more than
one year between spawning events (Huff, 1975; and Fox et al., 2000).
Freshwater Habitat
In the spring (March to May), most adult and subadult Gulf sturgeon
return to their natal river, where sexually mature sturgeon spawn, and
the population spends until October or November (6 to 8 months) in
freshwater (Odenkirk, 1989; Foster, 1993; Clugston et al., 1995; and
Fox et al., 2000). Fox et al. (2000) found that some individuals of the
Choctawhatchee River subpopulation do not enter the river until the
summer months. Gulf sturgeon migration is further discussed in the
``Migration'' section of this rule. During their early life history
stages, sturgeon require bedrock and clean gravel or cobble substrate
for eggs to adhere to and for shelter for developing larvae (Sulak and
Clugston, 1998). Young-of-the-year appear to disperse widely, using
extensive portions of the river as nursery habitat. They are typically
found on sandbars and sand shoals over rippled bottom and in shallow,
relatively open, unstructured areas. Given that the river is generally
nutrient poor with low levels of total phosphorus and organic carbon,
suggesting low productivity, this dispersal may be an adaptation to
exploit scarce food resources (Randall and Sulak, 1999). Clugston et
al. (1995) reported that young Gulf sturgeon in the Suwannee River,
weighing between 0.3 and 2.4 kg (0.7 and 5.3 lb), remain in the
vicinity of the river mouth and estuary during the winter and spring.
Adult Gulf sturgeon spawn in upper river reaches. On some river
systems such as the Pascagoula River and Apalachicola River, some adult
and subadult Gulf sturgeon remain near the spawning grounds throughout
the summer months (Wooley and Crateau, 1985; and Ross et al., 2001b),
but the majority move downstream to areas referred to as summer resting
or holding areas. In other rivers, most Gulf sturgeon spawn and move
downstream to aggregation areas also referred to as summer resting or
holding areas. A few Gulf sturgeon have been documented remaining at or
near their spawning grounds throughout the winter (Wooley and Crateau,
1985; Slack et al., 1999; and Heise et al., 1999a). Adults and
subadults are not distributed uniformly throughout the river, but show
a preference for these discrete areas usually located in lower and
middle river reaches (Hightower et al., in press). Often, these resting
areas are located in close proximity to natural springs throughout the
warmest months of the year, but are not located within a spring or
thermal plume emanating from a spring (Clugston et al., 1995; Foster
and Clugston, 1997; and Hightower et al., in press). These resting
areas are also often located in deep holes or shallow areas along
straight-aways ranging from 2 to 19 m (6.6 to 62.3 ft) deep (Wooley and
Crateau, 1985; Morrow et al., 1998a; Ross et al., 2001a and b; Craft et
al., 2001; and Hightower et al., in press). The substrates consisted of
mixtures of limestone and sand (Clugston et al., 1995), sand and gravel
(Wooley and Crateau, 1985; and Morrow et al., 1998a), or just sandy
substrate (Hightower et al., in press).
River flow may serve as an environmental cue that governs both
sturgeon migration and spawning (Chapman and Carr, 1995; and Ross et
al., 2001b). If the flow rate is too high, sturgeon in several life-
history stages can be adversely affected. Data describing the
sturgeon's swimming ability in the Suwannee River strongly indicates
that they cannot continually swim against prevailing currents of
greater than 1 to 2 m per second (3.2 to 6.6 ft per second) (K. Sulak,
USGS, pers. comm. cited in Wakeford, 2001). If the flow is too strong,
eggs might not be able to settle on and adhere to suitable substrate
(Wooley and Crateau et al., 1985). Flows that are too low can cause
clumping of eggs, which leads to increased mortality from asphyxiation
and fungal infection (Wooley and Crateau et al., 1985). Flow velocity
requirements for age 0 sturgeon may vary depending on substrate type.
Chan et al. (1997) found that age 0 Gulf sturgeon under laboratory
conditions exposed to water velocities over 12 centimeters per second
(cm/s) (4.7 inches per second (in/s)) preferred a cobble substrate, but
favored water velocities under 12 cm/s (4.7 in/s) and then used a
variety of substrates (sand, gravel, and cobble).
Gulf sturgeon require large areas of diverse habitat that have
natural variations in water flow, velocity, temperature, and turbidity
(FWS et al., 1995; and Wakeford, 2001). Natural surface and groundwater
discharges influence a river's characteristic fluctuations in volume,
depth, and velocity (Leitman et al., 1993; and Albertson and Torak,
2002). Change in temperature is thought to be an important factor in
initiating sturgeon migration (Wooley and Crateau, 1985; Chapman and
Carr, 1995; and Foster and Clugston, 1997) (see ``Migration'' section
for temperature ranges). Laboratory experiments indicate that Gulf
sturgeon eggs, embryos, and larvae have the highest survival rates when
temperatures are between 15 and 20 [deg]C (59 and 68 [deg]F). Mortality
rates of Gulf sturgeon gametes and embryos are highest when
temperatures are 25 [deg]C (77 [deg]F) and above (Chapman and Carr,
1995) (see ``Reproduction'' section for more detail). Researchers have
documented temperature ranges at Gulf sturgeon resting areas between
15.3 and 33.7 [deg]C (59.5 and 92.7 [deg]F) with dissolved oxygen
levels between 5.6 and 9.1 milligrams per liter (mg/l) (Morrow et al.,
1998a; and Hightower et al., in press).
In comparison to other fish species, sturgeon have a limited
behavioral and physiological capacity to respond to hypoxia
(insufficient oxygen levels) (Secor and Niklitschek, 2001). Basal
metabolism, growth, consumption, and survival are sensitive to changes
in oxygen levels (Secor and Niklitschek, 2001). In laboratory
experiments, young shortnose sturgeon (A. brevirostrum) (less than 77
days old) died at oxygen levels of 3.0 mg/l and all sturgeon died at
oxygen levels of 2.0 mg/l (Jenkins et al., 1993). Data concerning the
temperature, oxygen, and current velocity requirements of cultured
sturgeon are being collected. Researchers plan to use information
gained from these laboratory experiments on hatchery-reared sturgeon to
develop detailed information on water flow requirements of wild
sturgeon throughout different phases of their freshwater residence
(Wakeford, 2001).
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Estuarine and Marine Habitat
Most subadult and adult Gulf sturgeon spend cool months (October or
November through March or April) in estuarine areas, bays, or in the
Gulf of Mexico (Odenkirk, 1989; Foster, 1993; Clugston et al., 1995;
and Fox et al., 2002). Studies of subadult Gulf sturgeon (ages 4 to 7)
in Choctawhatchee Bay found that 78 percent of tagged fish remained in
the bay the entire winter, while 13 percent ventured into a connecting
bay. Possibly the remaining 9 percent overwintered in the Gulf of
Mexico (FWS, 1998). Adult Gulf sturgeon are more likely to overwinter
in the Gulf of Mexico, with 45 percent of the tagged adults presumed to
have left Choctawhatchee Bay and spent extended periods of time in the
Gulf of Mexico (Fox and Hightower, 1998; and Fox et al., 2002). In
contrast, Gulf sturgeon from the Suwannee River subpopulation are known
to migrate into the nearshore waters, where they remain for up to two
months and then depart to unknown feeding locations in the open Gulf of
Mexico (Carr et al., 1996b; and Edwards et al., in prep.).
Research in Choctawhatchee Bay indicates that subadult Gulf
sturgeon show a preference for sandy shoreline habitats with water
depths less than 3.5 m (11.5 ft) and salinity less than 6.3 parts per
thousand (Parauka et al., in press). Fox and Hightower (1998) found
that adult Gulf sturgeon monitored in Choctawhatchee Bay use some of
the same habitats as subadults. The majority of tagged fish have been
located in areas lacking seagrass (Fox et al., 2002; and Parauka et
al., in press).
Craft et al. (2001) found that Gulf sturgeon in Pensacola Bay
appear to prefer shallow shoals 1.5 to 2.1 m (5 to 7 ft) and deep holes
near passes. Unvegetated, fine to medium-grain sand habitats, such as
sandbars, and intertidal and subtidal energy zones resulting in
sediment sorting and a preponderance of sand support a variety of
potential prey items including estuarine crustaceans, small bivalve
mollusks and lancelets (Menzel, 1971; Abele and Kim, 1986; American
Fisheries Society, 1989; and M. Brim, FWS, pers. comm. 2002).
Habitats used by Gulf sturgeon in the vicinity of the Mississippi
Sound barrier islands tend to have a sand substrate and an average
depth of 1.9 to 5.9 m (6.2 to 19.4 ft). Preliminary data from bottom
samples taken in these barrier island areas show that all samples
contain lancelets (Branchiostoma). Since lancelets are a documented
prey of Gulf sturgeon, it is likely that Gulf sturgeon are feeding
along the sand substrate at barrier island passes (Ross et al., 2001a).
Gulf of Mexico nearshore (less than 1.6 km (1 mi)) unconsolidated,
fine-medium grain sand habitats, including natural inlets and passes
from the Gulf to estuaries, support crustaceans such as mole crabs,
sand fleas, various amphipod species, and lancelets (Menzel, 1971;
Abele and Kim, 1986; American Fisheries Society, 1989; and Brim, pers.
comm. 2002).
Estuary and bay unvegetated habitats have a preponderance of sandy
substrates that support burrowing crustaceans, such as ghost shrimp,
small crabs, various polychaete worms, and small bivalve mollusks
(Menzel, 1971; Abele and Kim, 1986; American Fisheries Society, 1989;
and Brim, pers. comm. 2002). Gulf sturgeon are often located in these
areas, and because their known prey items are present, it is assumed
that Gulf sturgeon are foraging.
Migration
Migratory behavior of the Gulf sturgeon seems influenced by sex,
reproductive status, water temperature, and possibly river flow. Carr
et al. (1996b) reported that male Gulf sturgeon initiate migration to
the river earlier in spring than females. Fox et al. (2000) found no
significant difference in the timing of river entry due to sex, but
reported that males migrate further upstream than females and that ripe
(in reproductive condition) males and females enter the river earlier
than nonripe fish (Fox et al., 2000). Most adults and subadults begin
moving from estuarine and marine waters into the coastal rivers in
early spring (i.e., March through May) when river water temperatures
range from 16.0 to 23.0 [deg]C (60.8 to 73.4 [deg]C) (Huff, 1975; Carr,
1983; Wooley and Crateau, 1985; Odenkirk, 1989; Clugston et al., 1995;
Foster and Clugston, 1997; Fox and Hightower, 1998; Sulak and Clugston,
1999; and Fox et al., 2000), while others may enter the rivers during
summer months (Fox et al., 2000). Some research supports the theory
that spring migration coincides with the general period of spring high
water (Chapman and Carr, 1995; Sulak and Clugston, 1999; and Ross et
al., 2001b), however, observations on the Choctawhatchee River have not
found a clear relationship between the timing of river entrance and
flow patterns (Fox et al., 2002).
Downstream migration from fresh to saltwater begins in September
(at about 23[deg]C (73.4[deg]F)) and continues through November (Huff,
1975; Wooley and Crateau,1985; and Foster and Clugston, 1997). During
the fall migration from fresh to saltwater, Gulf sturgeon may require a
period of physiological acclimation to changing salinity levels,
referred to as osmoregulation or staging (Wooley and Crateau, 1985).
This period may be short (Fox et al., 2002) as sturgeon develop an
active mechanism for osmoregulation and ionic balance by age one
(Altinok et al., 1997). On some river systems, timing of the fall
migration appears to be associated with pulses of higher river
discharge (Heise et al., 1999a and b; Ross et al., 2000 and 2001b; and
Parauka et al., in press).
Sturgeon ages 1 through 6 remain in the mouth of the Suwannee River
over winter. In late January through early February, young-of-the-year
Gulf sturgeon migrate down river for the first time (Sulak and
Clugston, 1999). Huff (1975) noted that juvenile Gulf sturgeon in the
Suwannee River most likely participated in pre- and post-spawning
migrations, along with the adults.
Findeis (1997) described sturgeon (Acipenseridae) as exhibiting
evolutionary traits adapted for benthic cruising. Tracking observations
by Sulak and Clugston (1999), Fox et al. (2002), and Edwards et al. (in
prep.) support that individual fish move over an area until they
encounter suitable prey type and density, at which time they forage for
extended periods of time. Individual fish often remained in localized
areas (less than 1 km\2\ (0.4 mi\2\) for extended periods of time
(greater than two weeks) and then moved rapidly to another area where
localized movements occurred again (Fox et al., 2002). It is unknown
precisely how much benthic area is needed to sustain Gulf sturgeon
health and growth, but because Gulf sturgeon have been known to travel
long distances (greater than 161 km (100 mi)) during their winter
feeding phase, significant resources must be necessary. These winter
migrations are an important strategy for feeding and for occasional
travel to non-natal rivers for possible spawning and resultant genetic
interchange among subpopulations. Bays and portions of Gulf of Mexico
waters adjacent to the lakes and bays near the mouths of the rivers
where Gulf sturgeon occur are believed to be important for feeding and/
or migrating (inter-river migrations that facilitate maintenance of the
natural hierarchy of between river genetic variability).
When temperature drops occur that are associated with major cold
fronts, researchers of the Escambia, Yellow, and Suwannee Rivers
subpopulations have been unable to locate adult Gulf sturgeon within
the bays (Craft et al., 2001; and Edwards et al., in prep.). They
hypothesize that the drop in water temperatures associated with cold
fronts disperses sturgeon to more distant foraging grounds. It is
currently
[[Page 13374]]
unknown whether Gulf sturgeon undertake extensive offshore migrations,
and further study is needed to determine whether important winter
feeding habitat occurs in farther offshore areas.
Sulak and Clugston (1999) described two hypotheses regarding areas
adult Gulf sturgeon may overwinter in the Gulf of Mexico in order to
find abundant prey. The first hypothesis is that Gulf sturgeon spread
along the coast in nearshore waters in depths less than 10 m (33 ft).
The alternative hypothesis is that they migrate far offshore to the
broad sedimentary plateau in deep water (40 to 100 m (131 to 328 ft))
west of the Florida Middle Grounds, where over twenty species of
bottom-feeding fish congregate in the winter (Darnell and Kleypas,
1987). Available data support the first hypothesis. Evaluation of
tagging data has identified several nearshore Gulf of Mexico feeding
migrations, but no offshore Gulf of Mexico feeding migrations or areas.
Telemetry data document that Gulf sturgeon from the Pearl River and
Pascagoula River subpopulations migrate from their natal bay systems to
Mississippi Sound and move along the barrier islands, with relocation
of tagged individuals greatest in the passes between islands (Ross et
al., 2001a; and Rogillio et al., 2002). Gulf sturgeon from the
Choctawhatchee River, Yellow River, and Apalachicola River have been
documented migrating in the nearshore Gulf of Mexico waters between
Pensacola and Apalachicola Bays (Fox et al., 2002; and F. Parauka,
pers. comm. 2002). Telemetry data in the Gulf of Mexico usually locate
sturgeon in depths of 6 m (19.8 ft) or less (Ross et al., 2001a; Fox et
al., 2002; Rogillio et al., 2002; and F. Parauka, pers. comm. 2002).
River-Specific Fidelity
Stabile et al. (1996) analyzed tissue from Gulf sturgeon in eight
drainages along the Gulf of Mexico for genetic diversity. They noted
significant differences among Gulf sturgeon stocks and suggested that
they displayed region-specific affinities and may exhibit river-
specific fidelity. Stabile et al. (1996) identified five regional or
river-specific stocks (from west to east): (1) Lake Pontchartrain and
Pearl River, (2) Pascagoula River, (3) Escambia and Yellow Rivers, (4)
Choctawhatchee River, and (5) Apalachicola, Ochlockonee, and Suwannee
Rivers.
Tagging studies suggest that Gulf sturgeon exhibit a high degree of
river fidelity (Carr, 1983). From 1981 to 1993, 4,100 fish were tagged
in the Apalachicola and Suwannee Rivers. Of these, 868 total fish were
recaptured (FWS et al. 1995). Of the recaptured fish, 860 fish (99
percent) were recaptured in the river of their initial collection.
Eight fish moved between river systems and represented less than 1
percent (0.009) of the 868 total fish recaptured (FWS et al., 1995). We
have no information documenting spawning adults in non-natal rivers.
Foster and Clugston (1997) noted that telemetered Gulf sturgeon in the
Suwannee River returned to the same areas as the previous summer, and
suggested that chemical cuing may influence distribution.
To date, biologists have documented a total of 22 Gulf sturgeon
making inter-river movements from natal rivers. They are as follows:
Apalachicola River to Suwannee River, six Gulf sturgeon (Carr et al.,
1996b); Apalachicola River to Deer Point Lake (North Bay of the St.
Andrew Bay system), one fish (Wooley and Crateau, 1985); Suwannee River
to Apalachicola River, three sturgeon (Carr et al., 1996b; and F.
Parauka, pers. comm. 2002); Choctawhatchee River to Apalachicola River,
one sturgeon (F. Parauka, pers. comm. 2002); Yellow River to
Choctawhatchee River, three female sturgeon (two adult, one subadult)
(Craft et al., 2001); Yellow River to Louisiana Estuarine area, one
female sturgeon (Craft et al., 2001); Escambia River to Yellow River,
one mature female on spawning grounds (Craft et al., 2001); Suwannee
River to Ochlockonee River, one sturgeon (FWS et al., 1995);
Choctawhatchee River to Escambia River, one male sturgeon (Fox et al.,
2002); Choctawhatchee River to Escambia, one female sturgeon (Fox et
al., 2002); Pearl River (Bogue Chitto) to Pascagoula River, one
sturgeon (Ross et al., 2001b); Choctawhatchee River to Pascagoula
River, one subadult sturgeon (Ross et al., 2001b); and Pascagoula River
to Yellow River, one sturgeon (Ross et al., 2001b).
Tallman and Healey (1994) noted that observed straying rates
between rivers were not the same as actual gene flow rates, i.e.,
inter-stock movement does not equate to interstock reproduction. The
gene flow is low in Gulf sturgeon stocks, with each stock exchanging
less than one mature female per generation (Waldman and Wirgin, 1998).
Previous Federal Action
Federal action on the Gulf sturgeon began in 1982, when the fish
was included as a Category 2 candidate species for listing in the FWS's
vertebrate notices of review dated December 30, 1982 (47 FR 58454) and
September 18, 1985 (50 FR 37958), and in the animal notice of review
dated January 6, 1989 (54 FR 554). At that time, the FWS gave Category
2 designation to species for which listing as threatened or endangered
was possibly appropriate, but for which additional biological
information was needed to support a proposed rule. A status report on
the Gulf sturgeon (Hollowell, 1980) had concluded that the fish had
been reduced to a small population due to overfishing and habitat loss.
In 1988, the FWS completed a report on the conservation status of the
Gulf sturgeon, which recommended listing it as a threatened species
(Barkuloo, 1988).
The Services jointly proposed the Gulf sturgeon for listing as a
threatened species on May 2, 1990 (55 FR 18357). In that proposed rule,
we stated that designation of critical habitat was not prudent due to
the species'' broad range and the lack of knowledge about specific
areas used by the species. We published the final rule on September 30,
1991 (56 FR 49653) to add Gulf sturgeon to the list of threatened
species, and included a special rule under section 4(d) of the Act to
allow the take of Gulf sturgeon, in accordance with applicable State
fish and wildlife conservation laws and regulations, for educational
and scientific purposes, the enhancement of propagation or survival of
the species, zoological exhibition, and other conservation purposes.
Section 4(a)(3)(A) of the Act requires that critical habitat be
designated concurrently with a determination that a species is
endangered or threatened, to the maximum extent prudent and
determinable. When such a designation is not determinable at the time
of final listing of a species, or if a prompt determination of
endangered or threatened status is essential to the conservation of the
species, section 4(b)(6)(C) of the Act provides for an additional year
to promulgate a final critical habitat designation. In the final rule
listing Gulf sturgeon as a threatened species, we found that a critical
habitat designation may be prudent but was not determinable. We found
that prompt determination of threatened status was essential to the
conservation of the species and stated that we would make a final
decision on designation of critical habitat by May 2, 1992. This
decision, however, was not made.
On August 11, 1994, the Sierra Club Legal Defense Fund, Inc.
(Fund), on behalf of the Orleans Audubon Society and Florida Wildlife
Federation, gave written notice of their intent to file suit against
the Department of the Interior for failure to designate critical
habitat for the Gulf sturgeon within the statutory time limits
established under
[[Page 13375]]
the Act. The Fund filed suit on October 11, 1994 (Orleans Audubon
Society v. Babbitt, Civ. No. 94-3510 (E.D. La)). Following a court
order on August 9, 1995, granting the Fund's motion for summary
judgement, the Services published a notice of decision on critical
habitat designation for the Gulf sturgeon on August 23, 1995 (60 FR
43721). We determined that critical habitat designation was not prudent
based on the lack of additional conservation benefit to the species.
On September 22, 1995, the Services and the Gulf States Marine
Fisheries Commission approved the Gulf Sturgeon Recovery/Management
Plan (FWS et al., 1995). The recovery plan established the criteria
that must be met prior to the delisting of the Gulf sturgeon. The
recovery plan also identified the actions that are needed to assist in
the recovery of the Gulf sturgeon.
On August 12, 1996, the plaintiffs filed a motion to add the
Department of Commerce as a defendant in the lawsuit. The Fund amended
their complaint to challenge the August 1995 ``not prudent''
determination. On October 30, 1997, the court granted the plaintiffs'
motion for summary judgment, with relief restricted to a remand of the
``not prudent'' determination to the Services, requiring that the
Services publish a determination on designation of critical habitat,
based on the best scientific information available. On February 27,
1998, we published a notice of decision (63 FR 9967) on critical
habitat designation for the Gulf sturgeon. We again determined that
lack of additional conservation benefit from critical habitat
designation for this species made such designation not prudent.
On December 18, 1998, the Sierra Club sued the Services challenging
the new determination not to designate critical habitat for the Gulf
sturgeon (Sierra Club v. U.S. Fish and Wildlife Service et al. CA No.
98-3788 (E.D. La.)). On January 25, 2000, the Court issued an order
granting our motion for summary judgment and dismissing the complaint.
The Sierra Club filed an appeal and, in March 2001, the United States
Court of Appeals for the 5th Circuit reversed the decision of the
District Court and instructed the District Court to remand the decision
to us for reconsideration (Sierra Club v. U.S. Fish and Wildlife
Service, 245 F.3d 434 (5th Cir. 2001)). On August 3, 2001, the District
Court issued an order directing us to publish a proposed decision
concerning critical habitat designation for the Gulf sturgeon by
February 2, 2002, and a final decision by August 2, 2002. Negotiation
with the plaintiff resulted in an agreement to submit the proposed
decision to the Federal Register on or by May 23, 2002, and the final
decision on or by February 28, 2003.
On June 6, 2002, we published a proposed rule in the Federal
Register in which we announced our determination that designation of
critical habitat was prudent, proposed designation of critical habitat
for Gulf sturgeon, announced four public meetings and hearings, and
requested comments on the proposal by September 23, 2002 (67 FR 39106).
On August 8, 2002, we published a notice in the Federal Register (67 FR
51530) announcing the availability of the draft economic analysis and
the extension of the comment period through October 7, 2002. We also
corrected the address of a public hearing to be held in Defuniak
Springs, FL on August 20, 2002. We held public meetings and public
hearings on the proposed rule and draft economic analysis at four
locations: Live Oak, Florida, on August 19, 2002; Defuniak Springs,
Florida, on August 20, 2002; Biloxi, Mississippi, on August 21, 2002;
and Kenner, Louisiana, on August 22, 2002.
Summary of Comments and Recommendations
We contacted appropriate Federal, State, and local agencies,
scientific organizations, and other interested parties and invited them
to comment on the proposal to designate critical habitat for the Gulf
sturgeon. In addition, we published newspaper notices inviting public
comment on the proposed rule and the draft economic analysis, and
announced the public meetings and hearings in the following newspapers:
St. Petersburg Times, Pensacola News Journal, Panama City The News
Herald, Fort Walton Daily News, Crystal River Citrus County Chronicle,
Tallahassee Democrat, and The Gainesville Sun, in Florida; The Brewton
Standard, Dothan Eagle, Geneva County Reaper, and Mobile Register, in
Alabama; Hinds County The Clarion-Ledger and Gulfport's The Sun Herald,
in Mississippi; and New Orleans The Times-Picayune and Baton Rouge's
The Advocate in Louisiana.
We held four public meetings and four public hearings on the
proposed rule (see ``Previous Federal Action'' section for dates and
locations). Transcripts of these hearings are available for inspection
(see ADDRESSES).
We received written letters or e-mails from a total of 126 parties
which included 2 congressional representatives from Georgia, 10 Federal
agencies, 13 State agencies, 5 county governments, 93 groups or
individuals, and 3 peer reviewers. Of the 128 total responses, 29
supported the proposed rule, 2 opposed it, and the rest were neutral.
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited independent opinions from six knowledgeable
individuals having expertise either with the species, with the
geographic region where the species occurs, and/or familiarity with the
principles of conservation biology. Three of these experts provided a
written response generally supporting the designation and provided
additional information that we have incorporated into the rule as
appropriate. We appreciate the responses of these peer reviewers, and
believe their input has improved the content of this rule.
We reviewed all comments received for substantive issues and new
data regarding critical habitat and Gulf sturgeon. Some comments
resulted in changes between the proposed and final designations, and
those comments are discussed in the ``Summary of Changes From the
Proposed Rule'' section of this document. Written comments and oral
statements presented at the public hearings and received during the
comment period are addressed in the following summary. For readers'
convenience we have assigned comments to major issue categories. We
have combined similar comments into single comments and responses.
Peer Review Comments
Comment 1: Three peer reviewers recommended that additional areas
be included as critical habitat, sometimes stating that the areas
contain the primary constituent elements upon which Gulf sturgeon rely.
Others requested inclusion based on historic use or potential use by
the Gulf sturgeon in these areas. The areas requested for inclusion
were St. Joseph Bay in Florida, the western portion of Lake
Pontchartrain and all of Lake Maurepas in Louisiana, and the Strong
River in Mississippi.
Also, twenty eight commenters recommended that additional areas be
included as critical habitat, with some stating that the areas contain
the primary constituent elements. Others requested inclusion based on
historic use or potential use by the Gulf sturgeon in these areas.
Other commenters expressed concerns that the proposed designation did
not include all of the current range of the Gulf sturgeon. The areas
requested for inclusion were the Ochlockonee River, Withlacoochee
[[Page 13376]]
River (central Florida river, not the tributary of the Suwannee River),
West Bay, East Bay of St. Andrew Bay system, St. Andrew Bay, St. Joseph
Bay, Tampa Bay, and the Hillsborough River in Florida; an additional
Choctawhatchee River reach, Mobile Bay, Murder Creek (tributary of the
Conecuh River), Alabama River, Bayou La Batre, and Perdido Bay in
Mobile Bay, in Alabama; Strong River in Mississippi; the western
portion of Lake Pontchartrain, Tickfaw River, Tchefuncte River, Lake
Maurepas, Chandeleur Sound, in Louisiana; and the coastline from
Mississippi to Tampa Bay, Florida.
Our Response: Section 4(b)(2) of the Act directs us to designate
critical habitat on the basis of the best scientific data available.
However, no or insufficient data were provided to us to support
inclusion of any of the above areas as critical habitat. While many of
these areas may have historically supported Gulf sturgeon populations
and/or may currently support populations, we cannot document that they
are essential to the conservation of the Gulf sturgeon.
The definition of critical habitat in section 3(5)(A) of the Act
includes ``(I) specific areas within the geographic area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographic area occupied by a species at the time it is
listed, upon a determination that such areas are essential for the
conservation of the species.'' By definition, essential critical
habitat generally describes a subset of the area potentially containing
primary constituent elements for a species. As discussed in the methods
section of the proposed and this final rule, to determine areas
essential for the conservation of the Gulf sturgeon, we used the best
scientific data available pertaining to known habitat requirements of
the species. Areas designated as critical habitat for the Gulf sturgeon
are within the current known range of the species and contain one or
more primary constituent elements essential for the conservation of the
species. In our proposed and final designation of critical habitat, we
selected essential habitat areas that currently contain populations or
provide habitat components essential to the conservation of the
species. During this analysis, it was determined that some areas
containing one or more primary constituent elements did not represent
suitable habitat or were otherwise not essential to the conservation of
the species.
Comment 2: One peer reviewer stated that the designation of
critical habitat for the Chickasawhay River (Unit 2) should be expanded
upstream to the beginning of the Chickasawhay River starting at the
confluence of the Chunky and Okatibbee Rivers, north of Enterprise
(Clarke County, Mississippi). This area contains the primary
constituent elements as noted in the proposed rule, including potential
spawning habitat. Research efforts conducted during spring 2002 by the
University of Southern Mississippi (USM)-MMNS Gulf sturgeon research
group documented the most upstream movement of a radio-tagged
individual on the Chickasawhay River traveling as far upstream as the
confluence of the Chunky and Okatibbee rivers. This individual was
originally tagged at the mouth of the Pascagoula River during early-
March 2002.
Our Response: The area requested for inclusion would add 19 rkm (12
rmi) to the designation on the Chickasawhay River in Mississippi.
However, we believe that what we proposed for the Gulf sturgeon
including the portion of the Chickasawhay River proposed for
designation, includes sufficient habitat to conserve the species.
Accordingly, we have not made the requested change. Moreover, areas
outside the critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1) and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the section 9 take prohibitions.
Comment 3: One peer reviewer questioned whether all Gulf sturgeon
overwinter in the marine and estuarine environment and what the
potential impacts on the population would be if critical habitat had a
temporal component to its designation.
Our Response: A few Gulf sturgeon have been documented remaining at
or near their spawning grounds throughout the winter (Wooley and
Crateau, 1985; Slack et al., 1999; and Heise et al,. 1999a). However,
this is an exception to the normal behavior of adult Gulf sturgeon.
During winter months, juveniles often remain in the estuary near the
river mouth, but adult and sub-adults leave the riverine habitat to
forage in the estuarine and marine areas. Critical habitat has no
temporal boundaries, only spatial. If an area is designated as critical
habitat, it receives equal protection throughout the year regardless of
the presence or absence of the species.
Comment 4: One peer reviewer and one commenter questioned our
rationale for deriving seven subpopulations from the five that were
proposed by Stabile et al. (1996).
Our Response: We first evaluated the Gulf sturgeon in the context
of its current distribution throughout the historic range to determine
what portion of the range must be designated to ensure conservation of
the species. We considered several factors in this evaluation: (1)
Maintaining overall genetic integrity and natural rates of inter-river
genetic exchange, thereby minimizing the potential for inbreeding, (2)
retaining potentially important selective pressure at the margins of
the species' range by protecting the eastern- and western-most
subpopulations, (3) decreasing the extinction risk of a subpopulation
by protecting adjacent subpopulations that can provide a rescue effect,
if needed, (4) avoiding the potential for subpopulation extirpation
from environmental catastrophes, and (5) protecting sufficient habitat
essential to the conservation of the species.
In their analysis of Gulf sturgeon subpopulations from eight
drainages along the Gulf of Mexico for genetic diversity, Stabile et
al. (1996) identified five regional or river-specific stocks (from west
to east)--(1) Lake Pontchartrain and Pearl River, (2) Pascagoula River,
(3) Escambia and Yellow Rivers, (4) Choctawhatchee River, and (5)
Apalachicola, Ochlockonee, and Suwannee Rivers.
All five genetic stocks are represented by the seven subpopulations
occupying the critical habitat units. The number, distribution, and
range of the seven Gulf sturgeon subpopulations included in these units
are necessary to protect and support the extent and diversity of the
species' genetic integrity and can provide a rescue effect, if needed
(see ``Methods'' section). We believe that these seven river systems,
with their associated estuarine and marine environments, represent
habitat that is essential for the conservation of the Gulf sturgeon.
Comment 5: Four commenters, including one peer reviewer, noted that
the western boundary in Lake Pontchartrain (Unit 8) seemed arbitrary.
Response: Critical habitat areas in Unit 8 provide juvenile,
subadult and adult feeding, resting and passage habitat for Gulf
sturgeon from the Pascagoula and Pearl Rivers subpopulations. Lake
Pontchartrain is divided into eastern and western areas by the Lake
Pontchartrain Causeway (a twin highway bridge supported by pilings
extending 33.6 km (20.9 mi) from the north to the south). Gulf
[[Page 13377]]
sturgeon from the Pearl River subpopulation have been documented (by
tags) to use the eastern half of Lake Pontchartrain. Researchers
believe that the eastern portion of the lake provides important winter
habitat for juveniles and subadults, and they have located tagged
individuals in Lake Pontchartrain and have repeatedly caught untagged
sturgeon between Goose Point and Point Platte, an area believed to be
used for winter feeding. While Gulf sturgeon have been documented in
the western portion of the Lake (generally near the mouth of small
rivers), it is not known whether those sturgeon are part of the Pearl
and Bogue Chitto Rivers spawning subpopulation, or if they are part of
a smaller spawning subpopulation that might exist within the Tickfaw,
Tangipahoa, or Tchefuncte Rivers. We, therefore, conclude that the
eastern portion, but not the western portion, of Lake Pontchartrain
provides essential winter habitat for the Pearl River subpopulation, as
data supports inclusion of the eastern portion of Lake Pontchartrain as
critical habitat. Although the Lake Pontchartrain Causeway does not
restrict fish movement, it does provide an appropriate and easily
identifiable boundary.
Public Comments
Issue A: General Biological Comments
Comment 6: One commenter believes that forestry practices (e.g.,
the use of silvicultural Best Management Practices and application of
streamside management zones, to protect surface water quality during
forestry operations) actively contribute to the conservation of the
Gulf sturgeon by providing an important incentive for private
landowners to retain forested riverine corridors adjacent to sturgeon
habitat.
Our Response: We agree that Best Management Practices when applied
correctly to silvicultural activities do protect and improve the
quality of surface waters and, therefore, do contribute to the
conservation of the Gulf sturgeon.
Comment 7: Some commenters questioned the basis of our statement
that adult Gulf sturgeon do not feed while in freshwater.
Our Response: As stated in the proposed and final rules (see
``Feeding Habits'' section), many reports indicate that subadult and
adult Gulf sturgeon fast and lose between 4 and 15 percent of their
total body weight while in freshwater, and then compensate the loss
during winter feeding in estuarine and marine environments (Carr, 1983;
Wooley and Crateau, 1985; Clugston et al,. 1995; Morrow et al., 1998a;
Heise et al, 1999a; Sulak and Clugston, 1999; and Ross et al., 2000).
Gu et al. (2001) tested the hypothesis that subadult and adult Gulf
sturgeon do not feed significantly during their annual residence in
freshwater by comparing stable carbon isotope ratios of tissue samples
from subadult and adult Gulf sturgeon and their potential freshwater
and marine food sources. A large difference in isotope ratios between
freshwater food sources and fish muscle tissue suggests that subadult
and adult Gulf sturgeon do not feed significantly in freshwater. The
isotope similarity between subadult and adult Gulf sturgeon and marine
food resources strongly indicates that this species relies almost
entirely on the marine food web for its growth (Gu et al., 2001).
Comment 8: One commenter questioned whether fish tagging studies
were limited to adults or whether they included other life stages as
well.
Our Response: Juveniles (age 1 to 6 years), subadults (age 6 years
to sexual maturity), and adults (sexually mature) have been marked with
different types of equipment, but primarily with T-bar tags (external)
and passive integrated transponder (PIT) tags (internal). Young-of-the-
year less than 20 cm (7.8 inches) tail length are too small to tag with
the standard markers and therefore are exclusively pit tagged (Mike
Randall, USGS, pers. comm. 2002).
Comment 9: Four commenters had questions regarding Gulf sturgeon
prey items and foraging areas.
Our Response: As stated in the proposed rule (67 FR 39107), the
diet of the Gulf sturgeon depends on its life history stage. While
adults are not known to forage in freshwater, juveniles and young-of-
the-year do. We have used data from stomach content analysis and
telemetry studies to identify probable Gulf sturgeon foraging areas,
i.e., those areas with substrate that supports the known prey items,
coupled with tracking data indicating sturgeon presence. We relied on
two observations to conclude that subadult and adult Gulf sturgeon do
not forage in freshwater: (1) Gulf sturgeon lose a substantial
percentage of their body weight while in freshwater in summer and then
compensate for the loss during winter, and (2) stable isotopes from
sturgeon muscle tissue and their potential marine food sources are
similar, while there is a large difference between muscle tissue and
potential freshwater food sources. Gulf sturgeon researchers and the
Services are certain that the existing data support these conclusions
regarding Gulf sturgeon food items and foraging locations.
Comment 10: Commenters wondered what we know of Gulf sturgeon's
overall use of estuarine and marine waters.
Our Response: While research indicates that Gulf sturgeon utilize
estuarine and marine areas for staging, resting and foraging,
researchers continue to investigate Gulf sturgeon over-wintering
behavior and locale. We are not able, at this time, to readily discern
the Gulf sturgeon's overall utilization of marine and estuarine areas
and we look forward to evaluating additional information when it
becomes available.
Comment 11: Some commenters questioned whether we were
knowledgeable of Gulf sturgeon migration routes.
Our Response: We have identified and described Gulf sturgeon
spawning migrations from coastal/marine areas to the rivers; however,
inter-riverine migratory patterns are not well understood. When we
could identify inter-riverine movements (mostly from telemetry data),
we included appropriate inshore coastal waters in the critical habitat
designation to provide protection for migrating sturgeon (e.g., Unit
11). Research is ongoing to investigate Gulf sturgeon inter-riverine
migrations (e.g., recording broad movement patterns via satellite
tags), and researchers are presently collating data to analyze Gulf-
wide movements.
Issue B: Site-specific Biological Comments
Comment 12: One commenter questioned whether any areas south of the
Suwannee River in Florida were historic critical habitat for Gulf
sturgeon.
Our Response: Since this is the first critical habitat designation
for the Gulf sturgeon, we presume that the commenter is asking whether
areas south of the Suwannee River were of importance to the Gulf
sturgeon historically. There are few reported sightings of Gulf
sturgeon using rivers south of the Suwannee River, but there are
historic and recent records of Gulf sturgeon in Tampa Bay and Charlotte
Harbor. At one time, the Tampa Bay area produced large commercial
landings of Gulf sturgeon. There have been reported Gulf sturgeon
sightings in the Florida Keys during winter months. Some biologists
theorize that the Suwannee River population of Gulf sturgeon may winter
in the Tampa Bay and Charlotte Harbor areas; however, further research
is needed in this area.
[[Page 13378]]
Comment 13: Two commenters asked how we determined the upstream
limit on the Suwannee River, and one commenter stated that the
published literature does not report the use of the Suwannee River
upstream of 230 rkm (143 rmi).
Our Response: We received unpublished information from Gulf
sturgeon experts (Ken Sulak, USGS, pers. comm. 2002; Jim Clugston,
retired USGS, pers. comm. 2002) of sightings of young-of-the-year Gulf
sturgeon as far upstream on the Suwannee River as to the confluence
with Roaring Creek at 304 rkm (200 rmi). This is approximately 11 rkm
(18 rmi) upstream of the designated critical habitat, which stops at
293 rkm (182 rmi). We believe that the area known as Big Shoals on the
Suwannee River captures the upstream-most significant spawning areas
and, therefore, we included upstream to this point. We have included
the 0.31 rkm (0.50 rmi) of habitat upstream from Big Shoals to the
confluence with Long Branch for ease of identification. It is correct
that the published literature on the Suwannee River documents spawning
sites no further upstream than at 230 rkm (143 rmi), but we have relied
on the above unpublished literature from reliable sources to determine
the upstream limit on this system.
Comment 14: Two commenters requested that the Services omit areas
adjacent to military lands from the designation under the Act's section
4(b)(2). The rationale presented included proximity to a military base
that is used for military testing and training, restricting military's
ability to quickly respond to training and testing due to long-lead
time administrative considerations required for consultations, and
reducing the number of formal consultations performed by the Services.
Our Response: The Department of Defense (DOD) did not request that
areas adjacent to military lands be excluded from critical habitat
designation. In any case, we have no data indicating that these areas
should be excluded. We have been successfully and efficiently
conducting section 7 consultations with military bases in these
critical habitat areas for over 10 years, and we intend to continue
working as partners with the armed forces to uphold the Act without
compromising national security. We do not foresee any impacts to
military readiness as a result of the adjacent critical habitat
designation.
Comment 15: One commenter reported that unusually large fish have
been taken from a fish trap on the Tennessee River near the mouth of
Chickamauga Creek, above Chattanooga, Tennessee.
Our Response: Historic information indicates that Gulf sturgeon did
not venture as far inland as Tennessee, so we are fairly certain the
large fish captured in the fish traps were not Gulf sturgeon. These
fish may have been lake sturgeon (A. fulvescens) or shovelnose sturgeon
(Scaphirhynchus platorhynchus), although these species are uncommon,
particularly in east Tennessee. Paddlefish (Polyodon spathula), which
attain weights of over 45 kg (100 lb) are found in the Tennessee River;
however, additional information would be necessary to clearly identify
the species involved and none was provided by the commenter.
Issue C: National Environmental Policy Act (NEPA) Compliance
Comment 16: One commenter stated that the Services should withdraw
the proposed rule pending compliance with NEPA, through preparation of
an environmental assessment or an environmental impact statement (EIS).
The commenter stated that FWS's position that NEPA only applies to
critical habitat designations in the 10th Circuit, based upon that
circuit's 1996 decision in Catron County Bd. of Comm. v. USFWS, 75 F.3d
1429, is unlawful. The commenter stated that the two exceptions to NEPA
compliance identified by the 10th Circuit (i.e., unavoidable conflict
between NEPA and another statute or duplicative procedures provided by
NEPA and a second statute) are not present in the case of critical
habitat designation. The commenter stated that the proposed critical
habitat rule was subject to NEPA because the effects of the designation
are broader than protecting habitat. They believe that future Federal
actions that are likely to adversely affect critical habitat will be
prohibited. They also believe that an environmental assessment may
reveal a more effective alternative to preventing extinction of the
sturgeon than designating critical habitat.
Our Response: The Services believe that in Douglas Co. v. Babbitt,
48 F.3d 1495 (9th Cir. 1995), the Court correctly interpreted the
relationship between NEPA and critical habitat designation under the
Act. The Ninth Circuit Court rejected the suggestion, identical to that
raised by the commenter, that irreconcilable statutory conflict or
duplicative statutory procedures are the only exceptions to application
of NEPA to Federal actions. The Court held that the legislative history
of the Act demonstrated that Congress intended to displace NEPA
procedures with carefully crafted procedures specific to critical
habitat designation. Further, the Douglas County Court held that the
critical habitat mandate of the Act conflicts with NEPA in that,
although the Secretary may exclude areas from critical habitat if such
exclusion would be more beneficial than harmful, the Secretary has no
discretion but to include areas in the designation if exclusion of such
areas would result in extinction. This lack of discretion renders
application of NEPA procedures (e.g., consideration of broad
environmental impacts, alternatives analysis) superfluous (this lack of
discretion to consider broad environmental impacts was the basis for
the 6th Circuit's determination that NEPA does not apply to listing
decisions under the Act, in Pacific Legal Foundation v. Andrus, 657 F2d
829 (6th Cir. 1981)). The Court noted that the Act also conflicts with
NEPA's demand for impact analysis, in that the Act dictates that the
Secretary ``shall'' designate critical habitat for listed species based
upon an evaluation of economic and other ``relevant'' impacts, which
the Court interpreted as narrower than NEPA's directive. Finally, the
9th Circuit, based upon a review of precedent from several circuits
including the 5th Circuit, held that an EIS is not required for actions
that do not change the physical environment.
In addition, we note that Federal actions that might adversely
affect critical habitat are not necessarily prohibited. Many Federal
actions may adversely affect critical habitat without the effect rising
to the level of destruction or adverse modification of the critical
habitat. In those cases where we find that a Federal project would
destroy or adversely modify critical habitat, we must identify
reasonable and prudent alternatives (RPAs) to the project that would
avoid the destruction or adverse modification (see ``Effects of
Critical Habitat Designation'' section). The RPAs must be capable of
being implemented in a manner consistent with the intended purpose of
the action, be consistent with the action agency's legal authority and
jurisdiction, and be economically and technically feasible.
Issue D: Section 7 Consultation Issues
Comment 17: One commenter expressed concerns that the critical
habitat designation will make it more difficult for fisheries managers
to sample for non-endangered fish in these rivers and fears they will
be required to apply for permits and provide annual reports, and that
in some cases, fishery activities may be stopped due to
[[Page 13379]]
sampling being conducted in areas designated as critical habitat.
Our Response: The Gulf sturgeon is a listed species and thereby
protected under the Act regardless of whether or not critical habitat
has been designated, therefore permits and annual reporting may be
necessary if the activities being conducted for fisheries management
may result in the incidental take of a Gulf sturgeon. Given that the
fish has been federally protected for 10 years and fisheries management
in all states throughout the Gulf sturgeon's range has proceeded
unhampered, we are unclear as to the reasons for this concern. Critical
habitat designation may result in required project modifications only
for activities with a Federal nexus and then only if the activity were
to destroy or adversely modify the primary constituent elements
contained in the designated habitat (i.e., prey, spawning habitat,
water quality, water quantity, sediment quality, or migratory passage).
Comment 18: One commenter questioned whether water quality issues
may arise from the establishment of the critical habitat and another
requested that the existing government databases be updated to reflect
current water quality of southern rivers, since water quality has
improved subsequent to the historic decline of the species.
Our Response: As required under section 7 of the Act, the
Environmental Protection Agency (EPA) consults with us regarding water
quality standards to ensure that they are protective of endangered and
threatened species. The EPA anticipates consulting with us every three
years as part of its triennial review of State delegated water quality
standards for Alabama, Florida, Mississippi, and Louisiana under
section 303(d) of the Clean Water Act. During each review period all
data relative to Gulf sturgeon and water quality will be updated and
reviewed to ensure that the standards continue to be protective. The
EPA recently released a new database on the water quality of the
nation's rivers. This information is available on its web site
(www.epa.gov). Future consultations will consider impacts to Gulf
sturgeon and associated critical habitat, and will take changes in
water quality into account.
Comment 19: One commenter questioned whether the FWS provided
information on flow requirements needed for critical habitat in the
Apalachicola, Chattahoochee, and Flint Rivers (ACF) negotiations and
whether such information was available to the public.
Our Response: The FWS presented information about the hydrological
characteristics of potential sturgeon spawning habitat on the
Apalachicola River as a result of separate requests from the Georgia
and Florida negotiators to the ACF Compact. This information is
summarized in our response to comment 42. Our information was based on
a single set of measurements at one potential spawning site, and for
reasons summarized in our response to comment 41, we do not
characterize this information as ``flow requirements needed for
critical habitat.'' This information is available to the public upon
request. However, the U.S. Army Corps of Engineers (USACE) is
conducting more detailed surveys intended to augment and refine our
initial measurements and will use these new measurements in preparing
its biological assessment of the effects of Federal reservoir
operations on federally-protected species and their habitats.
Comment 20: One commenter requested that the Services withdraw
their proposed critical habitat designation for the Gulf sturgeon and
instead address any needs of the species in the context of the ongoing
ACF Compact process.
Our Response: The ACF Compact is a Federal law that authorizes,
among other things, the States of Alabama, Florida, and Georgia, but
not the Federal government, to negotiate a water allocation formula for
equitably apportioning the surface waters of the ACF Basin. Under the
leadership of the non-voting Federal Commissioner to the Compact,
Federal agencies, including the Services, have provided technical
assistance to the States' negotiators on various water management
issues, including the needs of species protected under the Act. The
State negotiators are not obligated to act upon any such technical
assistance, and the Compact does not relieve Federal agencies,
including the Services, of responsibilities under other Federal
statutes or court rulings. This rule designating critical habitat
fulfills our requirements under the Act and the order of the United
States Court of Appeals for the Fifth Circuit.
Comment 21: One commenter stated that by designating the
Apalachicola River as critical habitat for the Gulf sturgeon, the
Federal government necessarily becomes involved in the water
negotiations for the ACF Compact and usurps authority from the State of
Georgia to negotiate stream flows in that river basin.
Our Response: State and Federal roles under the ACF Compact are
quite distinct, as noted in our response to comment 20, and this rule
in no way alters those roles. No authority is taken from the States, as
the critical habitat provisions of the Act apply to Federal agencies
and their actions only. Federal agencies acting in the ACF Basin are
obligated to comply with sections 7 and 10 of the Act with or without
an ACF Compact, and the States are solely empowered to negotiate a
water allocation formula for the ACF Basin with or without designated
critical habitat for the Gulf sturgeon.
Comment 22: The USACE's Mobile District expressed concern with
potential requirements to alter reservoir operations at the Jim
Woodruff Lock and Dam on the Apalachicola River in Florida, in order to
support minimum flow for Gulf sturgeon spawning. They are concerned
that a critical habitat designation could require substantial upstream
flow releases.
Our Response: As noted in the response to comment 42, preliminary
data suggest that if adjustments to reservoir operations are reasonable
and prudent in the conservation of the sturgeon, such adjustments would
likely occur infrequently, since it appears that flows do not limit
sturgeon spawning habitat availability in most years on the
Apalachicola River. Under section 7(a)(2) of the Act, Federal agencies
must avoid jeopardizing the continued existence of a species or the
destruction or adverse modification of designated critical habitat.
During the consultation process, Federal agencies share responsibility
with us for determining what operational adjustments, if any, would be
reasonable and prudent for sturgeon conservation. We acknowledge that
the USACE must consider its responsibilities for flood control, power
generation, navigation, water quality, other fish and wildlife, etc.,
as well as listed species conservation, in making its operational
decisions, and we appreciate the complexities of these decisions.
Comment 23: One commenter objected to critical habitat designation
because it would impede construction of any dam deemed necessary by the
public for water supply, flood control, and recreation.
Our Response: The Act's requirements regarding proposed and
designated critical habitat apply only to Federal actions, such as
constructing Federal reservoirs or issuing Federal permits for non-
Federal reservoirs (e.g., a Clean Water Act section 404 permit). For
such actions, the Federal agency's responsibility is to consult with us
to ensure that its actions are not likely to jeopardize the continued
existence of listed species or destroy or adversely modify designated
critical habitat. Reasonable and prudent alternatives to
[[Page 13380]]
avoid jeopardy or critical habitat destruction resulting from reservoir
construction, or reasonable and prudent measures to minimize take
resulting from reservoir construction, would depend entirely on the
size, location, and operational plan of the reservoir and its effects
on the primary constituent elements (e.g., flow regime, water quality,
passage). Reservoirs constructed downstream of spawning habitat would
have far different and likely greater impacts than those constructed
upstream of spawning habitat or on tributaries.
Comment 24: Three commenters requested clarification and examples
of specific activities that may affect essential features of the
designated area, a quantitative definition or explanation of
``appreciably reduce,'' and information on how we intend to quantify
the degree of impacts. One commenter requested that a mechanism be
developed to assess the severity of the action based on the ability of
the impacted area to recover as viable habitat.
Our Response: The value of critical habitat is appreciably
diminished when an action considerably reduces the capability of
designated or proposed critical habitat to satisfy requirements
essential to the conservation of a listed species. We continue to
consult with agencies to determine the effects of an action on the
primary constituent elements within the designated critical habitat by
utilizing the best available scientific data. It is our intent to
carefully assess each proposed project within Gulf sturgeon critical
habitat and analyze how the proposed action may impact (both directly
and indirectly; both temporally and spatially) those physical or
biological features that were the basis for determining the habitat to
be critical. As stated in the proposed rule, actions that may destroy
or adversely modify Gulf sturgeon critical habitat may include, but are
not limited to, dredging; dredge material disposal; channelization; in-
stream mining; land uses that cause excessive turbidity or
sedimentation; water impoundment; hard-bottom removal for navigation
channel deepening; water diversion; dam operations; release of
chemicals, biological pollutants, or heated effluents into surface
water or connected groundwater via point sources or dispersed non-point
sources; release of chemical or biological pollutants that accumulate
in sediments; and other physical or chemical alterations of channels
and passes. Note, however, that these same activities may be carried
out in a way that does not destroy or adversely modify critical
habitat. Such assessments are highly site and fact specific and the
information about the species and its habitat is continually expanding.
Therefore, whether the ``appreciably diminish'' threshold has been met
is a consultation-specific determination.
Comment 25: One commenter expressed concerns that the critical
habitat designation will prevent maintenance dredging which is required
for continued use of the Gulf Intracoastal Waterway (GIWW).
Our Response: Gulf sturgeon migration and feeding may occur within
the GIWW in some of the proposed units. As stated in the proposed rule
(67 FR 39114), portions of the GIWW that consist primarily of excavated
land cuts and canals have been excluded from this designation because
they were not available to the species historically, and therefore, are
not considered to be essential for the conservation of the species.
The GIWW requires periodic dredging by the USACE to maintain safe
and adequate passage. As stated in the proposed rule (67 FR 39125),
dredging is an action that may destroy or adversely modify Gulf
sturgeon critical habitat. We will work closely with the USACE to
identify appropriate measures to reduce dredging impacts to Gulf
sturgeon critical habitat while allowing maintenance dredging to
continue in the GIWW without interruption.
Issue E: Public Involvement
Comment 26: Three commenters had questions and concerns regarding
boating and sturgeon with regard to records of boat strikes on sturgeon
and options for regulating boat speed. One commenter stated that
critical habitat is just another way to impose restrictions and
regulations on the boating public.
Our Response: Regulating speed of boats to prevent sturgeon injury
or death would be an issue related to ``take'' of Gulf sturgeon and not
related to critical habitat. Boat speed is unlikely to have any
significant effect on primary constituent elements for Gulf sturgeon.
Comment 27: One commenter asked how anyone can be of help in our
project of recovery and designation of critical habitat for the Gulf
sturgeon.
Our Response: Maintaining a natural vegetative buffer along streams
and rivers, and participating in watershed conservation groups that
work on protecting and restoring river and bay habitat help conserve
the sturgeon's critical habitat.
Comment 28: One commenter wondered how the critical habitat
designation would raise public awareness and offer additional
educational and informational benefit.
Our Response: Critical habitat provides non-regulatory benefits to
the species by informing the public (via newspaper articles, newspaper
notices, public meetings, public hearings, etc.) of areas that are
important for species recovery and where conservation actions would be
most effective. Designation of critical habitat helps focus
conservation activities for a listed species on the areas that contain
the physical and biological features that are essential for
conservation of that species, and alerts the public and land-managing
agencies to the importance of those areas.
Issue F: Methods
Comment 29: One commenter suggested that we have not included
unoccupied habitat upstream of dams in the Apalachicola River Basin and
the Hillsborough River Basin because access is not available. The
commenter believes that these areas may be essential to the
conservation of the species.
Our Response: The commenter provided no data to support why these
two areas may be essential. Further, we have no historic records of
Gulf sturgeon using the Hillsborough River. Areas upstream of water
control structures were included elsewhere because they contain the
only known suitable spawning habitat for a subpopulation that shows
evidence of reproduction, and therefore, were deemed essential to the
conservation of the species. We believe there is sufficient habitat
downstream of the Jim Woodruff Lock and Dam on the Apalachicola River
to sustain a population of Gulf sturgeon. We believe that what we have
designated for the Gulf sturgeon is based on the best available
scientific information and includes what we consider to be essential to
the conservation of the Gulf sturgeon.
Comment 30: The Services intend to protect spawning habitats from
catastrophic occurrences by including both the main stem spawning sites
and at least one tributary site. One commenter asked why we included
just one tributary site.
Our Response: Each subpopulation for which critical habitat was
designated had historic records of sturgeon using a mainstem river and
at least one additional tributary. We included at least one tributary
for relief from potentially catastrophic events. Including additional
tributaries without historic records was not feasible because we have
no indication that the sturgeon
[[Page 13381]]
would use these areas, and therefore, no evidence that they are
essential to the conservation of the species. When data documented
fairly recent use of additional tributaries, those tributaries were
included. For example, the Pascagoula River subpopulation has sections
of the Bouie River, the Leaf River, and the Chickasawhay River
designated as critical habitat because data support sturgeon use.
Comment 31: One commenter asked if any of the proposed critical
habitat is in the State of Georgia.
Our Response: No. Although the historic range of the Gulf sturgeon
includes the Flint River, and possibly parts of the Chattahoochee
River, we determined that none of the historic habitat in Georgia is
essential to the conservation of the Gulf sturgeon.
Comment 32: One commenter suggested that the critical habitat
designation should be limited to a few specific areas within the range
of the Gulf sturgeon that are most important to their continued
survival (e.g., spawning areas, nursery areas, summer holding areas,
and fall and winter foraging areas).
Our Response: We considered the biological basis for a more site-
specific approach and concluded that it would not secure all biological
features essential for the conservation of the species. The site-
specific approach would neglect the importance of a migration corridor
between spawning, resting, and feeding areas. Also, young-of-year and
possibly juvenile sturgeon (less than 5 kg (11 lbs) (Mason and
Clugston, 1993)) actively forage throughout the riverine system.
Comment 33: One commenter requested that we discuss our rationale
for not designating unoccupied areas when the Services had previously
stated that unoccupied habitat would be necessary for Gulf sturgeon
recovery.
Our Response: As we stated in the proposed rule, since approval of
the Recovery Plan in 1995 and our 1998 ``not prudent'' finding, the
science of conservation biology has matured. The methods section cites
numerous recent publications that contributed to our decision to select
the areas we did and why they constitute habitat sufficient for the
conservation of the species. We have also collected significant new
biological information on this species. For example, we now have a
better understanding on status of the Pearl River system subpopulation;
we are confident that adult Gulf sturgeon are accessing spawning
habitats above Pools Bluff Sill and Bogue Chitto Sill during high
flows; spawning was confirmed in 1999 on the Pascagoula River
subpopulation; usage of the Chickasawhay River, a major tributary to
the Pascagoula River, was recently documented; spawning was confirmed
in 2001 at five locations on the Escambia River; young-of-year have
been confirmed on the Yellow River system and population estimates are
580 Gulf sturgeon 1 m (3.3 ft) or greater in size; additional suitable
spawning sites were documented on the Apalachicola River in 2002; and
between 1993 and 1998, additional spawning sites were confirmed on the
Suwannee River population. We believe that what we have designated for
the Gulf sturgeon is based on the best available scientific information
and includes those areas essential to the conservation of the Gulf
sturgeon.
Comment 34: Three commenters requested that the Services provide
additional detail or quantify the specific habitat requirements for
each life history stage, specifically abundant prey, flow regime, water
temperature, salinity, pH, oxygen content, etc.
Our Response: We have summarized the current knowledge of the
species, including life history requirements in the ``Background''
section of this rule. However, data are not yet available to more
quantitatively express the primary constituent elements of Gulf
sturgeon critical habitat. To make the critical habitat rule adaptive
to increasing knowledge, we have kept the primary constituent elements
general. When consultations on projects occur, biologists will use the
best available science available at the time of consultation to
determine whether the functions of those elements would be adversely
modified by the proposed Federal action. Research is ongoing, and as
those data are collected, we expect to understand better Gulf sturgeon
and its life history requirements.
Comment 35: One commenter stated that habitat is identified
primarily for adults (spawning sites, resting areas, winter feeding),
but not for larvae, juvenile, and subadult life stages. S/he also
suggested a need to cite specific studies rather than using the term
``gathered all available'' data.
Our Response: The commenter is referring to statements in the
``Methods'' section, which is written in general terms to explain how
we decided which riverine, estuarine, and marine areas to include as
critical habitat. We disagree with the commenter that the rule ignores
life stages besides the adult stage. We stated in the proposed rule
that we included riverine habitat from the river mouth up to and
including spawning grounds to provide sufficient habitat for the
riverine life stages of Gulf sturgeon. These life stages require
habitat for summer resting or staging areas, juvenile feeding, entire
young-of-year life cycle (including larval stages), passage throughout
the river (protects all life stages), and passage into and out of
estuarine habitat for adults and subadults. All of the selected areas
are known to be used by Gulf sturgeon for some portion of their life
cycle. Subadult and adult sturgeon use estuarine and marine areas for
feeding and passage between river systems. Designation of critical
habitat units in estuaries and bays adjacent to the riverine units
described above would protect both passage of sturgeon to and from
their feeding and spawning grounds and also the abundance of estuarine
and marine prey for juvenile and adult sturgeon.
Specific references used for making our determination are cited
throughout the ``Background'' and ``Critical Habitat Unit
Descriptions'' sections of the proposed and final rules. A complete
list of all references cited is presented in the ``References Cited''
section of this final rule.
Comment 36: One commenter stated that the areas included in the
proposal are those where studies have been directed toward sturgeon and
that it should not be assumed that other rivers do not have critical
habitat just because sturgeon have not been found in routine fishery
surveys. They also stated that routine fishery surveys can and have
missed the presence of sturgeon.
Our Response: We have based our designation on the best scientific
data available. However, the level of research and status surveys
conducted on many subpopulations is limited. Because of the limited
availability of data specific to each river system and specific to the
Gulf sturgeon's use of the marine and estuarine environment, we
acknowledge that habitat other than that identified in this final rule
may later be found to be essential to the conservation of Gulf
sturgeon. To the extent feasible, we will continue to conduct and
support surveys, research, and conservation actions on the species and
its habitat in areas designated and not designated as critical habitat.
If additional information becomes available on the species' biology,
distribution, and threats, we will evaluate the need to designate
additional critical habitat, delete or reduce critical habitat, or
refine the boundaries of critical habitat. Gulf sturgeon in areas not
included as critical habitat will continue to receive protection under
the section 7 jeopardy standard and the section 9 prohibitions on take.
[[Page 13382]]
Comment 37: One commenter suggested that we clarify our use of
vague terms in the proposed rule (e.g., strongly suspect, believed to
appear, possibly appropriate, relatively sediment free).
Our Response: We appreciate the commenter's sentiments. However, it
is seldom possible to make statements with complete or even relative
certainty when describing the biological and habitat requirements of an
endangered or threatened species. We have expressed ourselves as
definitively as possible using the best available scientific data,
recognizing the need for consultation-specific flexibility over time as
new information is developed about the species and its habitat.
Comment 38: Two commenters requested clarification of the lateral
extent of the critical habitat unit descriptions in the estuarine and
marine areas; clarification of our mean high water line determination,
and clarification of our use of an average high water calculation over
an 18.6 year period rather than using all available tidal data.
Our Response: Regulatory jurisdiction in coastal areas is
administered by the USACE and is described in 33 CFR 329.14(a)(2) as
``the line on the shore reached by the plane of the mean (average) high
water (MHW).'' 33 CFR 329.14(a)(2) further states that when precise
determination of the MHW line is necessary, it is preferable to average
tidal data over a period of 18.6 years, which is a Metonic cycle, i.e.,
the period in which new and full moon recur in the same order and on
the same days as in the preceding cycle.
Issue G: Jurisdiction
Comment 39: Three comments were received on the proposed
jurisdictional responsibilities for the management of the Gulf
sturgeon. Two commenters believe that FWS, instead of NMFS, should have
jurisdiction in the estuarine areas, and one commenter requested
clarification on the technical basis for determining areas of
regulatory jurisdiction in coastal areas.
Our Response: In 1974, a memorandum of understanding (MOU) was
developed to clarify jurisdictional responsibilities for the NMFS and
FWS. Section 1(a) of the 1974 MOU outlines jurisdiction by waterbody
and states that all non-mammalian species, with a few exceptions not
including Gulf sturgeon, that reside the major portion of their
lifetime in estuarine waters shall be under the jurisdiction of the
NMFS. Similarly, the FWS would have jurisdiction over species that
spend the major portion of their lifetimes on land and/or in fresh
water.
While the MOU does not contain specifics on jurisdictional
boundaries for critical habitat, the Services have applied the standard
set for listing species to this critical habitat rule--that is, NMFS
will have jurisdictional responsibility for marine waters and the FWS
for fresh water. In estuarine waters, the Services will consult based
on their respective expertise as described in the proposed rule. Under
this arrangement, the FWS will consult with the EPA since it has
expertise in water quality issues, and the NMFS will consult with the
USACE to maximize efficiency for the action agency when other federally
protected species may be present (e.g., protected sea turtles which
fall under the jurisdiction of NMFS in marine and estuarine waters).
Issue H: Economic Analysis
Comment 40: One commenter supported the two-baseline approach to
the economic analysis used by the Services, and went on to suggest that
the lower baseline, that identifies costs solely attributable to
critical habitat designation, need not be included in the analysis to
be responsive to the decision in New Mexico Cattle Growers Association
v. USFWS, 248 F.3d 1277 (10th Cir. 2001). The commenter paraphrased the
10th Circuit's holding as requiring that costs resulting from the
listing of a species must be considered along with the costs of
critical habitat designation in determining whether the costs of such
designation outweigh the benefits. The commenter went on to support the
inclusion of costs associated with both jeopardy consultations and
adverse modification consultations, and resulting project modification
costs, in the economic analysis, stating that the full spectrum of
impacts associated with the listing and critical habitat designation
presents a more realistic and comprehensive understanding of probable
impacts in the affected region.
Our Response: In New Mexico Cattle Growers Association, the 10th
Circuit ruled that the full costs of critical habitat designation must
be captured in an economic analysis performed in accordance with
section 4(b)(2) of the Act, and thus that costs that might be incurred
co-extensively as a result of both listing and critical habitat
designation must be included in the analysis. For example, projects
that might modify spawning habitat of Gulf sturgeon would give rise to
a consultation on both jeopardy and adverse modification grounds, and
the costs of such consultations must be attributable to critical
habitat designation.
Comment 41: One commenter raised questions about impacts to Federal
hydropower generation in the ACF Basin. Without specific details as to
the minimum and maximum flows necessary for spawning and other flow-
related habitat questions, the commenter contends ``the economic
ramifications of this proposal cannot be properly considered, as
required by law.''
Our Response: We agree that a meaningful assessment of economic
impacts that could result from modifying the operations of the USACEs'
ACF reservoirs to avoid or minimize impacts to Gulf sturgeon habitat in
the Apalachicola River is not possible at this time because too many
variables, such as those listed by the commenter, are unknown. Based on
the limited data that are currently available about the flow rates that
inundate potential spawning habitat, the FWS believes that any
reasonable and prudent adjustments to ACF project operations to protect
sturgeon spawning would be infrequent. As a result, the costs over time
to project purposes such as hydropower would be relatively small. The
basis for this preliminary determination and a brief description of the
informal consultation that is underway between the USACE and the FWS
about ACF project operations effects on sturgeon follows.
Possible flow-related limitations to spawning habitat in the
Apalachicola River were not recognized until the spring of 2002, when
project operations and unusually low basin runoff entering the fourth
year of a regional drought exposed limestone outcroppings and other
hard-bottom portions of the main channel. These hard-bottom areas,
which likely support spawning by the small Apalachicola sub-population,
are inundated during the spring months of most years by the combination
of unregulated basin runoff and the USACEs' operations of the ACF
reservoirs for project purposes other than the conservation of species
and habitats protected under the Act. On May 2, 2002, FWS personnel
surveyed a site near where sturgeon larvae were collected in 1977
(Wooley et al., 1982) and 1987 (Foster et al., 1988). FWS estimated the
maximum discharge that would fully expose the outcropping and the
minimum discharge that would fully inundate it. These estimates were
173 cubic meters per second (cms) (6,118 cubic feet per second (cfs))
and 317 cms (11,200 cfs), respectively. The minimum depth at which Gulf
sturgeon eggs have been collected is 1.4 m (4.6 ft) (Fox et
[[Page 13383]]
al., 2000). The estimated discharge corresponding to 1.4 m (4.6 ft)
inundation of the bottom of the limestone shelf was 424 cms (14,970
cfs), and 612 cms (21,610 cfs) for the top of the shelf. During the
March 15 to May 15 timeframe, when sturgeon spawning most likely
occurs, daily average flow rates have exceeded 424 cms (14,970 cfs) and
612 cms (21,610 cfs) 87 percent and 63 percent of the time,
respectively, in the 1929 to 2002 flow record of the Chattahoochee
gage. March 15 to May 15 average discharge exceeds these flow rates in
97 percent and 77 percent of the years, respectively.
If flow rates between 424 cms (14,970 cfs) and 612 cms (21,610 cfs)
are sufficient for successful sturgeon spawning on the Apalachicola
River, any adjustments to reservoir operations that appear reasonable
and prudent for sturgeon conservation would occur relatively
infrequently, during the occasional years when spring-time hydrologic
conditions and operations for other project purposes do not provide
flows in this range. However, this flow range is based on one set of
measurements at one site and relies upon the minimum depth at which
eggs have been previously collected (4.6 feet); other sites with
different hydrologic characteristics may support spawning and depths
less than 4.6 feet may allow for successful spawning. Annual monitoring
of the Apalachicola sturgeon population by net sampling shows year
classes represented for all years from 1986 to 1998. In none of these
years were all days in the March 15 to May 15 time frame greater than
612 cms (21,610 cfs), but all of these years had at least 11 days
greater than 612 cms (21,610 cfs). In 2002, no days from March 15 to
May 15 had flow greater than 612 cms (21,610 cfs). We will not know for
3 years, when year class 2002 individuals would become large enough to
sample with the nets used in annual monitoring, whether the unusually
low spring flows of 2002 resulted in a lost year class.
The USACE and FWS have initiated a study of sturgeon spawning
habitat in the Apalachicola River that will provide a more complete
relationship between flow and habitat availability than the single site
measured by FWS in May 2002. The USACE will use the results of this
study and other information in a biological assessment of the effects
of its current operations on the sturgeon, its proposed critical
habitat, and other federally-protected species. This assessment will
determine whether current operations may adversely affect federally-
protected species and their habitats and if so, serve to initiate
formal consultation with the FWS. Until this consultation is completed,
it is premature to make estimates of its economic impact, which is
dependent on the results of studies that are still underway and on
USACE decisions relative to reservoir operations that will weigh its
responsibilities under the Act with other statutory responsibilities.
Comment 42: One commenter stated that the economic analysis does
not provide sufficient information to determine if the benefits of
exclusion outweigh the benefits of inclusion of individual critical
habitat units. The comment goes on to ask whether inclusion of any unit
would materially affect the recovery of the Gulf Sturgeon, and requests
that the Services provide a metric by which to determine whether
inclusion of any unit is economically warranted.
Our Response: Section 4(b)(2) of the Act directs that critical
habitat, areas containing biological and physical features essential to
the conservation of the species, shall be designated after taking into
account the economic impacts and other relevant impacts of such
designation. The Secretaries of the Interior and Commerce have the
discretion to exclude areas from such designation if the benefits of
exclusion outweigh the benefits of inclusion, unless failure to
designate such areas will result in the extinction of the species
concerned. This language does not establish a test of whether inclusion
is ``economically warranted.''
Comment 43: One commenter suggested that uncertainty over the
spatial and temporal scale that would be involved in future application
of the destruction or adverse modification standard should be
acknowledged, that costs could depend upon whether that standard is
applied to the designated critical habitat as a whole, within
individual units, or some other scale, and whether the standard would
be triggered by temporary or long term impacts.
Our Response: The Gulf sturgeon's affinity for natal river systems
and the importance of every breeding unit of the species suggests that
individual units or groups of units that are used by stocks or
subpopulations which fulfill essential geographic distribution
requirements are the appropriate scale for the analysis. The outcome of
each destruction or adverse modification analysis is highly fact
specific, dependent not only upon the species and designated critical
habitat at issue, but also upon the particular project and its impact
upon the primary constituent elements of the critical habitat. The
economic analysis for this rule estimated costs of consultations on
projects that the consulting Federal agencies advised were likely to be
implemented in the next 10 years. Thus, the uncertainty in the analysis
would be attributable to unforseen or uncertain projects and their
impacts, as well as a lack of detail about each projected project, and
there is no way to address this uncertainty in any non-speculative
manner.
Comment 44: The Mobile and New Orleans Districts of the USACE
raised questions regarding the economic analysis' incorporation of
dredging windows as potential project modifications.
Our Response: Based on comments received from the USACE and further
analysis by the Services, the economic analysis has been modified by
removing dredging windows as potential project modifications that would
be included in each formal consultation and omitting estimated costs of
such. These changes reflect the extreme improbability that dredging
windows would be recommended or adopted as a project modification to
reduce impacts to critical habitat (as opposed to preventing take),
given the availability of other means of protecting sturgeon or its
habitat with adequate coordination and planning between the USACE and
us.
Comment 45: Several commenters expressed concerns over the
potential effects of critical habitat designation on water flow regimes
in the Apalachicola River, and whether needs to alter flow regimes to
protect sturgeon or its habitat might impose costs by impacting
hydropower or businesses and recreation dependent on existing
reservoirs (e.g., Lake Sidney Lanier).
Our Response: Section 3.4 of the economic analysis has been revised
to more fully discuss the factors associated with estimating economic
impacts related to flow regime modifications that may emerge from
consultation with the USACE as reasonable and prudent for the sturgeon
and its habitat in the Apalachicola River. Conservation of listed
species is one of many responsibilities the USACE must consider in
operating the Apalachicola Basin reservoir projects, which are
variously authorized for the purposes of flood control, hydropower,
navigation, recreation, water quality, water supply, and fish and
wildlife. Changing reservoir operations for sturgeon conservation could
affect the degree to which the USACE is able to fulfill other project
purposes; however, under normal and wet rainfall conditions, existing
operations appear adequate to protect the sturgeon and its habitat. If
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project operations do not release enough water, as is the case during
droughts, spawning habitat may be exposed or too shallow for sturgeon
to use successfully. The USACE and FWS are presently in informal
consultation on the effects of ACF reservoir operations on federally-
listed species, and are investigating the relationship between flow and
sturgeon spawning habitat availability in the Apalachicola River.
Although these studies are not yet completed, the FWS believes that
project modifications for sturgeon conservation would likely represent
reasonable minor adjustments to existing operations that would minimize
the impacts of unavoidably adverse conditions. The economic analysis
concludes that the effects of such modifications on the regional
economy would be small (less than 0.1 percent).
Comment 46: Several commenters suggested that the economic analysis
did not adequately address secondary impacts of critical habitat
designation on the economy on a regional scale. These commenters
expressed concerns about impacts on the shipping and navigation
industries and their support services, on future commercial and
industrial development, and on commercial fishing, particularly shrimp
fishing.
Our Response: Section 2.1 of the economic analysis has been revised
to provide more information on the current level of economic activity
in the areas in or around the critical habitat designation. Specific
information on State gross products and time series employment data
have been added. Regional data on waterborne economic activity,
including waterborne commerce, commercial fishing, recreational
fishing, other water-based recreation, and hydropower generation are
more fully presented. Thus, the revised economic analysis provides an
appropriate economic baseline against which to evaluate the
significance of section 7 costs associated with critical habitat
designation.
After identifying and evaluating the activities likely to give rise
to section 7 consultations and thus direct costs of critical habitat
designation in section 3.2, the economic analysis discusses potential
secondary impacts on the regional economy in section 3.4. Past
consultations have not resulted in project changes that have affected
the regional economy, including the particular activities of concern to
the commenters, and no comments provided specific examples of how
future consultations would result in regional economic impacts.
Waterborne commerce is unlikely to be affected by the critical
habitat designation because all available evidence indicates that
future operations and maintenance navigation projects will proceed
without changes to timing and scope. Moreover, the frequently
maintained portions of the major shipping channels located within the
critical habitat designation are altered to an extent that any primary
constituent elements for sturgeon that are still present in the
channels are unlikely to be appreciably diminished from their current
baseline by Federal actions in the channels. Portions of shipping
channels that are not frequently maintained and new dredge material
disposal sites likely contain one or more primary constituent elements
and therefore have a higher likelihood for project modifications to be
recommended.
No limitations to commercial fishing activities are expected to
result from section 7 consultations pertaining to Gulf sturgeon (see
Section 3.4.3 of the economic analysis).
Past consultations and available evidence do not indicate that
county-wide economies or employment will be impacted by this critical
habitat designation (see Section 3.4.4 of the economic analysis).
Comment 47: One Mississippi County Commissioner expressed concern
over closure of a shipping channel through Little Lake and the lower
Pearl River, and its impact on commercial navigation.
Our Response: If the shipping channel were closed, it would be
attributable to litigation filed by the Tulane Environmental Law Clinic
over water quality certification, and not due to sturgeon protection.
Thus, no modifications were made to the economic analysis.
Comment 48: Two commenters stated that the economic analysis should
acknowledge the controversy surrounding option and existence values and
the methodologies available to estimate these values. One commenter,
the USACE, stated that it does not allow these values to be claimed in
its economic studies ``because the academic community does generally
not accept the procedures used to estimate them.'' The USACE went on to
state that the studies presented in the economic analysis are not
related to the Gulf sturgeon, the studies' methods are not discussed,
and inclusion of the information adds nothing to the document.
Our Response: The final economic analysis notes the controversy
that the commenter discusses as revolving around the use of contingent
valuation methodology. Therefore, the economic analysis in Section 5.2
has been revised to better explain the relevance of these values to
this critical habitat designation, by including a fuller explanation of
contingent valuation methodology, and adding more detail to the
discussion and exhibits relating to the economic literature on
valuation of natural resources such as threatened and endangered
species, and the applicability of the benefits transfer methodology.
Comment 49: Two comments stated that the economic analysis
presented a flawed analytical approach in ignoring the time value of
money and present values.
Our Response: The economic analysis has been modified (see Section
4.3) to include the present value of the total estimated costs of the
critical habitat designation, using 2 discount rates in order to
provide a measure of sensitivity analysis. The economic analysis now
also presents annualized cost estimates for the 10 year period
considered for this designation.
Comment 50: Two comments state that the economic analysis fails to
meet requirements for economic analyses, including using inappropriate
and archaic research techniques.
Our Response: We believe that the methodology used is appropriate
for and consistent with the analysis of economic impacts required by
the Act, which does not mandate a strict cost-benefit analysis. The
methodology used to produce the economic analysis has been peer-
reviewed. We further believe that the research used is appropriate for
the analysis required by the Act, and provides the best available
scientific information available. Economic analyses are typically based
on direct conversations with the action agencies regarding their
expected future actions and costs.
Comment 51: One comment stated that it is unreasonable to predict
zero costs associated with project modifications attributable solely to
critical habitat designation.
Our Response: No information was provided, and none was available,
regarding project modifications that would be attributable solely to
critical habitat designation, as opposed to being attributed co-
extensively to take of or jeopardy to the species.
Comment 52: One comment stated that the economic analysis did not
fully consider costs to the States that might arise from consultations
with EPA over pollution discharge permits.
Our Response: There is no evidence that past or future EPA projects
have or
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will be delayed due to consultations regarding sturgeon protection.
Current EPA water quality standards take protection of endangered and
threatened species and their habitat, including Gulf sturgeon, into
account.
Comment 53: One comment asserted that the economic analysis should
cover at least a 20-year period.
Our Response: To be credible, the economic analysis must estimate
economic impacts based on activities that are reasonably foreseeable.
The revised economic analysis does include annualized cost estimates to
10 years. It is difficult to predict the costs of consultations on
activities beyond a 10-year window. Costs for section 7 consultations
may increase or decrease dependent on factors other than inflation or
deflation. For example, changes in requirements for development of a
biological assessment may occur, or fluctuations in the cost of
biologists and consultants. In order to maintain reasonable confidence
in the estimated total section 7 costs, the analysis quantifies costs
occurring within a ten year time frame. However, the final economic
analysis does include annualized cost estimates, to the extent that
these may inform the commenter's projections of costs over a 20-year
period (see Section 4.3).
Comment 54: A few commenters stated that the economic analysis may
underestimate impacts on small businesses secondarily impacted by
consultations with Federal agencies.
Our Response: The courts have held that the Regulatory Flexibility
Act requires an agency to perform a regulatory flexibility analysis
only when a rule directly regulates them (Mid-Tex Elec. Coop, Inc. V.
FERC, 773 F.2d 327 (D.C. Cir. 1985) and American Trucking Ass'ns, Inc.
V. EPA, 175 F.3d 1027, 1044 (D.C. Cir. 1991)). Accordingly, the
economic analysis considered the total costs that may affect small
entities through section 7 of the Act. Activities likely to be impacted
include those associated with operation and maintenance of navigation
projects, highway bridge construction, and pipeline construction
projects. The analysis found that less than one percent of these
industries in the region would be affected and that it was likely that
most of the costs imposed by the designation would be passed through to
the Federal government as the government contracts for such services.
Issue I: Potential Impact to Commercial Shrimp Fishery
Comment 55: Three commenters requested clarification on how
designation of critical habitat would impact the commercial shrimp
fishery, and if sturgeon are a bycatch of shrimping.
Our Response: Shrimp trawling may impact both the Gulf sturgeon and
its critical habitat. Shrimp trawling may directly affect Gulf sturgeon
by capturing them in trawl nets. There is one documented non-lethal
take of a sturgeon during testing of a Turtle Excluder Device (TED)
equipped flounder trawl off Long Island, New York; the Atlantic
sturgeon was approximately 1 m (3 ft) in total length, and was released
alive (J. Mitchell, NOAA Fisheries, Pascagoula Laboratory, pers. comm.
2002). In addition, a single sturgeon is reported in the NOAA Fisheries
shrimping bycatch database (E. Scott-Denton, NOAA Fisheries, Galveston
Laboratory, pers. comm. 2002) as taken by shrimp trawling; an Atlantic
sturgeon was captured off Georgia (Atlantic Ocean) in 1995. Anecdotal
information indicates that while some sturgeon are taken by shrimp
trawlers, many fish are alive as local researchers are often contacted
so they may tag and release the fish (H. Rogillio, LADWF, pers. comm.
2002). Currently shrimp fishers report fewer sturgeon are being caught
in the nets, which may reflect escapement through the TED or fewer
incidents being reported. Regardless of critical habitat, the Gulf
sturgeon was listed as a threatened species under the Act on September
30, 1991, and it, therefore, is protected wherever it occurs. Take of
Gulf sturgeon that is not authorized (e.g., through a section 7
consultation or through an incidental take permit) is unlawful.
The most likely effect of shrimp trawling on Gulf sturgeon critical
habitat would be the disturbance of the benthic environment by trawling
gear. This issue is being investigated at the NOAA Fisheries Galveston
Laboratory. Until such time as conclusive data becomes available, any
correlation between shrimp trawling and a negative effect on Gulf
sturgeon critical habitat would be tenuous. While benthic molluscan and
crustacean prey items favored by Gulf sturgeon could conceivably be
disturbed as the shrimp trawl passes over the bottom, a possible effect
of that disturbance would be to make them more susceptible to predation
by Gulf sturgeon, possibly enhancing foraging opportunities. Although
shrimp trawls may capture Gulf sturgeon, and the benthos within
critical habitat may be disturbed, there is little to suggest that
shrimp trawling significantly affects the Gulf sturgeon or its critical
habitat at this time.
Issue J: Policy and Regulations
Comment 56: One commenter stated that the proposed action serves to
provide an additional layer of bureaucracy without any tangible
benefits and appears to be a redundant and reaction to litigation filed
against the Services in 1994 by the Sierra Club Legal Defense Fund and
the Florida Wildlife Federation. Three commenters stated that the
Services previously made not prudent determinations regarding critical
habitat and requested additional information (data/biological factors)
and detail to explain the Services change in position.
Our Response: We had previously determined that designation of Gulf
sturgeon critical habitat was not prudent given that such designation
would not benefit the species based upon a view that jeopardy and
adverse modification were essentially wholly overlapping standards
under the Act. After the Fifth Circuit Court of Appeals rejected this
interpretation, as stated in the proposed rule (67 FR 39112), we have
reconsidered and found that designation will be clearly beneficial to
the species. Recent research has determined and qualified numerous
areas important for Gulf sturgeon spawning, resting, staging, and
foraging. Many of these important areas are only utilized seasonally,
and therefore not afforded the protection when the species is absent.
By designating critical habitat, the Services will be able to manage
impacts to those physical and biological features (primary constituent
elements) that are essential to the conservation of the species
regardless of the species presence or absence through the consulting
mechanism under section 7 of the Act. For example, other Federal
agencies will be required to consult with us on actions they carry out,
fund, or authorize, to ensure that their actions will not destroy or
adversely modify critical habitat. In this way, a critical habitat
designation will protect areas that are necessary for the conservation
of the species. It may also serve to enhance awareness within Federal
agencies and the general public of the importance of Gulf sturgeon
habitat and the need for special management considerations.
Summary of Changes From the Proposed Rule
Seven changes have been made from the proposed to the final rule
designating Gulf sturgeon critical habitat--calculation of the total
area included in designation; inclusion of identical amendments to both
50 CFR parts 17 and 226; verification of bridge
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position in Unit 1; additional specifics on fish location in Unit 2;
and exclusion of areas in Units 2, 8 and 9 under section 4(b)(2) of the
Act.
For the proposed rule, river kilometers (and river miles) were
measured with USACE mileage tables (USACE, 1985a and b), when available
for a particular river reach. When not reported in the USACE mileage
tables, several Geographic Information System (GIS) data layers were
used to map all units and to calculate mileages, including data from
NOAA, Environmental Systems Research Institute, Inc., and USGS. For the
final rule, we still relied on the USACE mileage tables (USACE, 1985a
and b) to calculate mileages when available for a particular river
reach, but the remaining reaches were measured and mapped using the
National Hydrography Dataset from the USGS at a scale of 1:100,000
(2001-2002 data set). This data layer, not available to us during the
proposed rule, is available for the entire range of the mapped Gulf
sturgeon critical habitat and has a higher resolution than the GIS data
layers used for the proposed rule maps. Greater resolution results in
the ability of the mapper to see and measure more of the rivers natural
bends, thereby resulting in higher and more accurate river lengths.
This change from using different data layers resulted in an additional
river mileage of 259 rkm (161 rmi), which is a more accurate
reflection, in reported total river kilometers and miles for all
States, with no inclusion of additional areas.
In the proposed rule, we inadvertently provided different
amendments to be included in 50 CFR part 17 (FWS) and part 226 (NMFS).
For the final rule we are making identical amendments to both Parts.
The amendment includes: (1) Maps and textual unit descriptions of all
14 critical habitat units, (2) the primary constituent elements
essential for the conservation of Gulf sturgeon, and (3) a description
of regulatory jurisdiction.
Below are descriptions of unit-specific changes. The changes stated
below do not include those attributed to our more fine-scale mapping
from the proposed rule.
Unit 1
On the Bogue Chitto River, Pike County, Mississippi, we reduced
critical habitat in this river reach by approximately 3.2 km (2 mi) due
to an error in what we believed to be the location of Quinn Bridge. We
have documentation of a Gulf sturgeon sighting 1.6 km (1 mi