[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]                         

 



[[Page 13369]]



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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



[[Page 13371]]



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).



[[Page 13373]]



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



[[Page 13384]]



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



[[Page 13385]]



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



[[Page 13386]]



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