[Federal Register: March 19, 2003 (Volume 68, Number 53)]
[Rules and Regulations]
[Page 13369-13495]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr03-15]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 226
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Gulf Sturgeon; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI23
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No.; I.D. 020522126-3051-02]
RIN 0648-AQ03
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Gulf Sturgeon
AGENCY: Fish and Wildlife Service (FWS), Interior, and National Marine
Fisheries Service (NMFS), National Oceanic and Atmospheric
Administration, Commerce.
ACTION: Final rule.
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SUMMARY: We, FWS and NMFS, collectively ``the Services,'' designate
critical habitat for the Gulf sturgeon (Acipenser oxyrinchus desotoi),
a threatened species listed under the Endangered Species Act of 1973,
as amended (Act). We designate 14 geographic areas among the Gulf of
Mexico rivers and tributaries as critical habitat for the Gulf
sturgeon. These 14 geographic areas (units) encompass approximately
2,783 river kilometers (rkm) (1,730 river miles (rmi)) and 6,042 square
kilometers (km2) (2,333 square miles (mi2)) of
estuarine and marine habitat.
Critical habitat identifies specific areas that are essential to
the conservation of a listed species, and that may require special
management considerations or protection. Section 7(a)(2) of the Act
requires that each Federal agency shall, in consultation with and with
the assistance of the Services, insure that any action authorized,
funded or carried out by such agency is not likely to jeopardize the
continued existence of an endangered or threatened species or result in
the destruction or adverse modification of critical habitat. Section 4
of the Act requires us to consider economic and other relevant impacts
of specifying any particular area as critical habitat. We solicited
data and comments from the public on all aspects of the proposal,
including data on economic and other impacts of the designation.
DATES: The effective date of this rule is April 18, 2003.
ADDRESSES: The complete administrative record, including comments and
materials received, as well as supporting documentation, used in the
preparation of this final rule are available for public inspection, by
appointment, during normal business hours at the Panama City Field
Office, U.S. Fish and Wildlife Service, 1601 Balboa Avenue, Panama
City, Florida 32405. Copies of the final rule, economic analysis, and
information regarding this critical habitat designation are available
on the Internet at http://alabama.fws.gov/gs/.
FOR FURTHER INFORMATION CONTACT: Gail Carmody, Field Supervisor, Panama
City Field Office (see ADDRESSES section) (telephone 850/769-0552;
facsimile 850/763-2177), or Stephania Bolden, Fishery Biologist,
National Oceanic and Atmospheric Administration (NOAA) Fisheries,
Southeast Regional Office, 9721 Executive Center Drive North, St.
Petersburg, Florida 33702 (telephone 727/570-5312; facsimile 727/570-
5517). Information regarding this designation is available in alternate
formats upon request.
SUPPLEMENTARY INFORMATION:
Background
The Gulf sturgeon (Acipenser oxyrinchus (=oxyrhynchus) desotoi),
also known as the Gulf of Mexico sturgeon, is an anadromous fish
(breeding in freshwater after migrating up rivers from marine and
estuarine environments), inhabiting coastal rivers from Louisiana to
Florida during the warmer months and overwintering in estuaries, bays,
and the Gulf of Mexico. It is a nearly cylindrical primitive fish
embedded with bony plates or scutes. The head ends in a hard, extended
snout; the mouth is inferior and protrusible and is preceded by four
conspicuous barbels. The tail (caudal fin) is distinctly asymmetrical,
the upper lobe is longer than the lower lobe (heterocercal). Adults
range from 1.2 to 2.4 meters (m) (4 to 8 feet (ft)) in length, with
adult females larger than males. The Gulf sturgeon is distinguished
from the geographically disjunct Atlantic coast subspecies (A. o.
oxyrinchus) by its longer head, pectoral fins, and spleen (Vladykov,
1955; Wooley, 1985). King et al. (2001) have documented substantial
divergence between A. o. oxyrinchus and A. o. desotoi using
microsatellite DNA testing.
Distribution and Status
Historically, the Gulf sturgeon occurred from the Mississippi River
east to Tampa Bay. Its present range extends from Lake Pontchartrain
and the Pearl River system in Louisiana and Mississippi east to the
Suwannee River in Florida. Sporadic occurrences have been recorded as
far west as the Rio Grande River between Texas and Mexico, and as far
east and south as Florida Bay (Wooley and Crateau, 1985; and Reynolds,
1993).
In the late 19th century and early 20th century, the Gulf sturgeon
supported an important commercial fishery, providing eggs for caviar,
flesh for smoked fish, and swim bladders for isinglass, a gelatin used
in food products and glues (Huff, 1975; and Carr, 1983). Gulf sturgeon
numbers declined due to overfishing throughout most of the 20th
century. The decline was exacerbated by habitat loss associated with
the construction of water control structures, such as dams and sills
(submerged ridge or vertical wall of relatively shallow depth
separating two bodies of water), mostly after 1950. In several rivers
throughout the species' range, dams have severely restricted sturgeon
access to historic migration routes and spawning areas (Boschung, 1976;
Wooley and Crateau, 1985; and McDowall, 1988).
On September 30, 1991, we listed the Gulf sturgeon as a threatened
species under the Act (16 U.S.C. 1531 et seq.) (56 FR 49653). Other
threats and potential threats identified in the listing rule included
modifications to habitat associated with dredged material disposal,
desnagging (removal of trees and their roots), and other navigation
maintenance activities; incidental take by commercial fishermen; poor
water quality associated with contamination by pesticides, heavy
metals, and industrial contaminants; aquaculture and incidental or
accidental introductions; and the Gulf sturgeon's slow growth and late
maturation. The Gulf sturgeon listing rule and the Gulf Sturgeon
Recovery/Management Plan (FWS et al., 1995), which was approved by the
Services and the Gulf States Marine Fisheries Commission, provide a
more detailed discussion of the reasons for the species' decline and
threats to surviving populations (available by request or at the FWS
Internet site, see ADDRESSES).
The Gulf Sturgeon Recovery/Management Plan (FWS et al., 1995)
recommended that genetic studies be done to determine geographically
distinct management units. Some work in this regard has been completed
(Stabile et al., 1996), but we have not formally adopted management
units at this time. For purposes of this final rule, we have used the
term subpopulation to subdivide the Gulf sturgeon population
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based on geography, degree of connectedness, and genetic interchange
(Lande and Barrowclough, 1987; and King et al., 2001). Seven
subpopulations are described in the ``Critical Habitat Unit
Descriptions'' section of this rule.
Feeding Habits
Gulf sturgeon feeding habits in freshwater vary depending on the
fish's life history stage (i.e., young-of-the-year, juvenile, subadult,
adult). Young-of-the-year Gulf sturgeon remain in freshwater feeding on
aquatic invertebrates and detritus approximately 10 to 12 months after
spawning occurs (Mason and Clugston, 1993; and Sulak and Clugston,
1999). Juveniles (less than 5 kg (11 lbs) are believed to forage
extensively and exploit scarce food resources throughout the river,
including aquatic insects (e.g., mayflies and caddisflies), worms
(oligochaetes), and bivalve molluscs (Huff, 1975; and Mason and
Clugston, 1993). Juvenile (ages 1 to 6) Gulf sturgeon collected in the
Suwannee River are trophically active (foraging) near the river mouth
at the estuary, but trophically dormant (not foraging) in summer
holding areas upriver--a portion of the juvenile population reside and
feed year round near the river mouth at the estuary, not just in winter
(K. Sulak, U.S. Geological Survey (USGS), pers. comm. 2002). In the
Choctawhatchee River, juvenile (ages 1 to 6) Gulf sturgeon did not
remain near the estuary at the river mouth for the entire year,
instead, they were located during winter months in Choctawhatchee Bay
and returned upriver to resting areas in the spring (F. Parauka, FWS,
pers. comm. 2002). Subadult (age 6 to sexual maturity) and adult
(sexually mature) Gulf sturgeon do not feed in freshwater (Wooley and
Crateau, 1985; and Mason and Clugston, 1993).
Many reports indicate that adult and subadult Gulf sturgeon lose a
substantial percentage of their body weight while in freshwater (Wooley
and Crateau, 1985; Mason and Clugston, 1993; and Clugston et al., 1995)
and then compensate the loss during winter feeding in the estuarine and
marine environments (Wooley and Crateau, 1985; and Clugston et al.,
1995). Gu et al. (2001) tested the hypothesis that subadult and adult
Gulf sturgeon do not feed significantly during their annual residence
in freshwater by comparing stable carbon isotope ratios of tissue
samples from subadult and adult Suwannee River Gulf sturgeon and their
potential freshwater and marine food sources. A large difference in
isotope ratios between freshwater food sources and fish muscle tissue
suggests that subadult and adult Gulf sturgeon do not feed
significantly in freshwater. The isotope similarity between Gulf
sturgeon and marine food resources strongly indicates that this species
relies almost entirely on the marine food web for its growth (Gu et
al., 2001).
Once subadult and adult Gulf sturgeon leave the river, having spent
at least 6 months in the river fasting, we presume that they
immediately begin feeding. Upon exiting the rivers, Gulf sturgeon are
found in high concentrations near their natal river mouths. Lakes and
bays at the mouths of the river systems where Gulf sturgeon occur are
important because they offer the first opportunity for Gulf sturgeon
exiting their natal rivers to forage. Gulf sturgeon must be able to
consume sufficient quantities of prey while in estuarine and marine
waters to regain the weight they lose while in the river system and to
maintain positive growth on a yearly basis. In addition, reproductively
active Gulf sturgeon require additional food resources to obtain
sufficient energy necessary for reproduction (Fox et al., 2002; and D.
Murie and D. Parkyn, University of Florida (UF), pers. comm. 2002).
Adult and subadult Gulf sturgeon, while in marine and estuarine
habitat, are thought to forage opportunistically (Huff, 1975),
primarily on benthic (bottom dwelling) invertebrates. Gut content
analyses have indicated that the Gulf sturgeon's diet is predominantly
amphipods, lancelets, polychaetes, gastropods, shrimp, isopods,
molluscs, and crustaceans (Huff, 1975; Mason and Clugston, 1993; Carr
et al., 1996b; Fox et al., 2000; and Fox et al., 2002). Gulf sturgeon
from the Suwannee River subpopulation are known to forage on
brachiopods (Murie and Parkyn, pers. comm. 2002); however, this is not
a documented prey item of other subpopulations. Ghost shrimp
(Lepidophthalmus louisianensis) and the haustoriid amphipod
(Lepidactylus spp.) are strongly suspected to be important prey for
adult Gulf sturgeon over 1 m (3.3 ft) (Heard et al., 2000; and Fox et
al., 2002). This hypothesis is based on the following evidence: (1)
Gulf sturgeon have been consistently located and observed actively
feeding in areas where numerous burrows similar to those occupied by
ghost shrimp exist (Fox et al., 2000) and in areas having a high
density of ghost shrimp and haustoriid amphipods (Heard et al., 2000),
(2) the digestive tracts of two adult Gulf sturgeon that died during
netting operations contained numerous ghost shrimp (Fox et al., 2000),
(3) stomach contents of a 30 kg (67 lb) sturgeon taken in the upper
portion of Choctawhatchee Bay contained more than 100 individual
haustoriid amphipods and 67 ghost shrimp (Heard et al., 2000), and (4)
approximately one-third of 157 sturgeon guts analyzed by Carr et al.
(1996b) contained exclusively brachiopods and ghost shrimp.
Reproduction
Gulf sturgeon are long-lived, with some individuals reaching at
least 42 years in age (Huff, 1975). Age at sexual maturity for females
ranges from 8 to 17 years, and for males from 7 to 21 years (Huff,
1975). Gulf sturgeon eggs are demersal (they are heavy and sink to the
bottom), adhesive, and vary in color from gray to brown to black
(Vladykov and Greeley, 1963; Huff, 1975; and Parauka et al., 1991).
Chapman et al. (1993) estimated that mature female Gulf sturgeon
weighing between 29 and 51 kg (64 and 112 lb) produce an average of
400,000 eggs. Habitat at egg collection sites consists of one or more
of the following: limestone bluffs and outcroppings, cobble, limestone
bedrock covered with gravel and small cobble, gravel, and sand
(Marchant and Shutters, 1996; Sulak and Clugston, 1999; Heise et al.,
1999a; Fox et al., 2000; and Craft et al., 2001). On the Suwannee
River, Sulak and Clugston (1999) suggest a dense matrix of gravel or
cobble is likely essential for Gulf sturgeon egg adhesion and the
sheltering of the yolk sac larvae, and is a habitat spawning adults
apparently select. Other substrates identified as possible spawning
habitat include marl (clay with substantial calcium carbonate),
soapstone, or hard clay (W. Slack, Mississippi Museum of Natural
Science (MMNS), pers. comm. 2002; and F. Parauka, pers. comm. 2002).
Water depths at egg collection sites ranged from 1.4 to 7.9 m (4.6 to
26 ft), with temperatures ranging from 18.2 to 23.9 degrees Celsius
([deg]C) (64.8 to 75.0 degrees Fahrenheit ([deg]F)) (Fox et al., 2000;
Ross et al., 2000; Craft et al., 2001). Laboratory experiments
indicated optimal water temperature for survival of Gulf sturgeon
larvae is between 15 and 20 [deg]C (59 and 68 [deg]F), with low
tolerance to temperatures above 25 [deg]C (77 [deg]F) (Chapman and
Carr, 1995). Researchers hypothesize that spawning must take place
where the hydrological and chemical settings are appropriate for gamete
(mature reproductive cell) function, and temperature, pH, and dissolved
oxygen conditions are stable and appropriate for embryonic and yolk sac
larval development (Sulak and Clugston, 1999).
Sulak and Clugston (1999) suggested that sturgeon spawning activity
in the Suwannee River is related to the phase
[[Page 13372]]
of the moon, but only after the water temperature has risen to 17
[deg]C (62.6 [deg]F). Other researchers however, have found little
evidence of spawning associated with lunar cycles (Slack et al., 1999;
and Fox et al., 2000). Spawning in the Suwannee River occurs during the
general period of spring high water, when ionic conductivity and
calcium ion concentration are most favorable for egg development and
adhesion (Sulak and Clugston, 1999). Fox et al. (2002) found no clear
pattern between timing of Gulf sturgeon entering the river and flow
patterns on the Choctawhatchee River. Ross et al. (2001b) surmised that
the high flows in early March were a cue for sturgeon to begin their
upstream movement in the Pascagoula River.
Atlantic sturgeon (A. oxyrinchus) exhibit a long inter-spawning
period, with females spawning at intervals ranging from every 3 to 5
years, and males every 1 to 5 years (Smith, 1985). It is believed that
Gulf sturgeon exhibit similar spawning periodicity, as male Gulf
sturgeon are capable of annual spawning, and females require more than
one year between spawning events (Huff, 1975; and Fox et al., 2000).
Freshwater Habitat
In the spring (March to May), most adult and subadult Gulf sturgeon
return to their natal river, where sexually mature sturgeon spawn, and
the population spends until October or November (6 to 8 months) in
freshwater (Odenkirk, 1989; Foster, 1993; Clugston et al., 1995; and
Fox et al., 2000). Fox et al. (2000) found that some individuals of the
Choctawhatchee River subpopulation do not enter the river until the
summer months. Gulf sturgeon migration is further discussed in the
``Migration'' section of this rule. During their early life history
stages, sturgeon require bedrock and clean gravel or cobble substrate
for eggs to adhere to and for shelter for developing larvae (Sulak and
Clugston, 1998). Young-of-the-year appear to disperse widely, using
extensive portions of the river as nursery habitat. They are typically
found on sandbars and sand shoals over rippled bottom and in shallow,
relatively open, unstructured areas. Given that the river is generally
nutrient poor with low levels of total phosphorus and organic carbon,
suggesting low productivity, this dispersal may be an adaptation to
exploit scarce food resources (Randall and Sulak, 1999). Clugston et
al. (1995) reported that young Gulf sturgeon in the Suwannee River,
weighing between 0.3 and 2.4 kg (0.7 and 5.3 lb), remain in the
vicinity of the river mouth and estuary during the winter and spring.
Adult Gulf sturgeon spawn in upper river reaches. On some river
systems such as the Pascagoula River and Apalachicola River, some adult
and subadult Gulf sturgeon remain near the spawning grounds throughout
the summer months (Wooley and Crateau, 1985; and Ross et al., 2001b),
but the majority move downstream to areas referred to as summer resting
or holding areas. In other rivers, most Gulf sturgeon spawn and move
downstream to aggregation areas also referred to as summer resting or
holding areas. A few Gulf sturgeon have been documented remaining at or
near their spawning grounds throughout the winter (Wooley and Crateau,
1985; Slack et al., 1999; and Heise et al., 1999a). Adults and
subadults are not distributed uniformly throughout the river, but show
a preference for these discrete areas usually located in lower and
middle river reaches (Hightower et al., in press). Often, these resting
areas are located in close proximity to natural springs throughout the
warmest months of the year, but are not located within a spring or
thermal plume emanating from a spring (Clugston et al., 1995; Foster
and Clugston, 1997; and Hightower et al., in press). These resting
areas are also often located in deep holes or shallow areas along
straight-aways ranging from 2 to 19 m (6.6 to 62.3 ft) deep (Wooley and
Crateau, 1985; Morrow et al., 1998a; Ross et al., 2001a and b; Craft et
al., 2001; and Hightower et al., in press). The substrates consisted of
mixtures of limestone and sand (Clugston et al., 1995), sand and gravel
(Wooley and Crateau, 1985; and Morrow et al., 1998a), or just sandy
substrate (Hightower et al., in press).
River flow may serve as an environmental cue that governs both
sturgeon migration and spawning (Chapman and Carr, 1995; and Ross et
al., 2001b). If the flow rate is too high, sturgeon in several life-
history stages can be adversely affected. Data describing the
sturgeon's swimming ability in the Suwannee River strongly indicates
that they cannot continually swim against prevailing currents of
greater than 1 to 2 m per second (3.2 to 6.6 ft per second) (K. Sulak,
USGS, pers. comm. cited in Wakeford, 2001). If the flow is too strong,
eggs might not be able to settle on and adhere to suitable substrate
(Wooley and Crateau et al., 1985). Flows that are too low can cause
clumping of eggs, which leads to increased mortality from asphyxiation
and fungal infection (Wooley and Crateau et al., 1985). Flow velocity
requirements for age 0 sturgeon may vary depending on substrate type.
Chan et al. (1997) found that age 0 Gulf sturgeon under laboratory
conditions exposed to water velocities over 12 centimeters per second
(cm/s) (4.7 inches per second (in/s)) preferred a cobble substrate, but
favored water velocities under 12 cm/s (4.7 in/s) and then used a
variety of substrates (sand, gravel, and cobble).
Gulf sturgeon require large areas of diverse habitat that have
natural variations in water flow, velocity, temperature, and turbidity
(FWS et al., 1995; and Wakeford, 2001). Natural surface and groundwater
discharges influence a river's characteristic fluctuations in volume,
depth, and velocity (Leitman et al., 1993; and Albertson and Torak,
2002). Change in temperature is thought to be an important factor in
initiating sturgeon migration (Wooley and Crateau, 1985; Chapman and
Carr, 1995; and Foster and Clugston, 1997) (see ``Migration'' section
for temperature ranges). Laboratory experiments indicate that Gulf
sturgeon eggs, embryos, and larvae have the highest survival rates when
temperatures are between 15 and 20 [deg]C (59 and 68 [deg]F). Mortality
rates of Gulf sturgeon gametes and embryos are highest when
temperatures are 25 [deg]C (77 [deg]F) and above (Chapman and Carr,
1995) (see ``Reproduction'' section for more detail). Researchers have
documented temperature ranges at Gulf sturgeon resting areas between
15.3 and 33.7 [deg]C (59.5 and 92.7 [deg]F) with dissolved oxygen
levels between 5.6 and 9.1 milligrams per liter (mg/l) (Morrow et al.,
1998a; and Hightower et al., in press).
In comparison to other fish species, sturgeon have a limited
behavioral and physiological capacity to respond to hypoxia
(insufficient oxygen levels) (Secor and Niklitschek, 2001). Basal
metabolism, growth, consumption, and survival are sensitive to changes
in oxygen levels (Secor and Niklitschek, 2001). In laboratory
experiments, young shortnose sturgeon (A. brevirostrum) (less than 77
days old) died at oxygen levels of 3.0 mg/l and all sturgeon died at
oxygen levels of 2.0 mg/l (Jenkins et al., 1993). Data concerning the
temperature, oxygen, and current velocity requirements of cultured
sturgeon are being collected. Researchers plan to use information
gained from these laboratory experiments on hatchery-reared sturgeon to
develop detailed information on water flow requirements of wild
sturgeon throughout different phases of their freshwater residence
(Wakeford, 2001).
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Estuarine and Marine Habitat
Most subadult and adult Gulf sturgeon spend cool months (October or
November through March or April) in estuarine areas, bays, or in the
Gulf of Mexico (Odenkirk, 1989; Foster, 1993; Clugston et al., 1995;
and Fox et al., 2002). Studies of subadult Gulf sturgeon (ages 4 to 7)
in Choctawhatchee Bay found that 78 percent of tagged fish remained in
the bay the entire winter, while 13 percent ventured into a connecting
bay. Possibly the remaining 9 percent overwintered in the Gulf of
Mexico (FWS, 1998). Adult Gulf sturgeon are more likely to overwinter
in the Gulf of Mexico, with 45 percent of the tagged adults presumed to
have left Choctawhatchee Bay and spent extended periods of time in the
Gulf of Mexico (Fox and Hightower, 1998; and Fox et al., 2002). In
contrast, Gulf sturgeon from the Suwannee River subpopulation are known
to migrate into the nearshore waters, where they remain for up to two
months and then depart to unknown feeding locations in the open Gulf of
Mexico (Carr et al., 1996b; and Edwards et al., in prep.).
Research in Choctawhatchee Bay indicates that subadult Gulf
sturgeon show a preference for sandy shoreline habitats with water
depths less than 3.5 m (11.5 ft) and salinity less than 6.3 parts per
thousand (Parauka et al., in press). Fox and Hightower (1998) found
that adult Gulf sturgeon monitored in Choctawhatchee Bay use some of
the same habitats as subadults. The majority of tagged fish have been
located in areas lacking seagrass (Fox et al., 2002; and Parauka et
al., in press).
Craft et al. (2001) found that Gulf sturgeon in Pensacola Bay
appear to prefer shallow shoals 1.5 to 2.1 m (5 to 7 ft) and deep holes
near passes. Unvegetated, fine to medium-grain sand habitats, such as
sandbars, and intertidal and subtidal energy zones resulting in
sediment sorting and a preponderance of sand support a variety of
potential prey items including estuarine crustaceans, small bivalve
mollusks and lancelets (Menzel, 1971; Abele and Kim, 1986; American
Fisheries Society, 1989; and M. Brim, FWS, pers. comm. 2002).
Habitats used by Gulf sturgeon in the vicinity of the Mississippi
Sound barrier islands tend to have a sand substrate and an average
depth of 1.9 to 5.9 m (6.2 to 19.4 ft). Preliminary data from bottom
samples taken in these barrier island areas show that all samples
contain lancelets (Branchiostoma). Since lancelets are a documented
prey of Gulf sturgeon, it is likely that Gulf sturgeon are feeding
along the sand substrate at barrier island passes (Ross et al., 2001a).
Gulf of Mexico nearshore (less than 1.6 km (1 mi)) unconsolidated,
fine-medium grain sand habitats, including natural inlets and passes
from the Gulf to estuaries, support crustaceans such as mole crabs,
sand fleas, various amphipod species, and lancelets (Menzel, 1971;
Abele and Kim, 1986; American Fisheries Society, 1989; and Brim, pers.
comm. 2002).
Estuary and bay unvegetated habitats have a preponderance of sandy
substrates that support burrowing crustaceans, such as ghost shrimp,
small crabs, various polychaete worms, and small bivalve mollusks
(Menzel, 1971; Abele and Kim, 1986; American Fisheries Society, 1989;
and Brim, pers. comm. 2002). Gulf sturgeon are often located in these
areas, and because their known prey items are present, it is assumed
that Gulf sturgeon are foraging.
Migration
Migratory behavior of the Gulf sturgeon seems influenced by sex,
reproductive status, water temperature, and possibly river flow. Carr
et al. (1996b) reported that male Gulf sturgeon initiate migration to
the river earlier in spring than females. Fox et al. (2000) found no
significant difference in the timing of river entry due to sex, but
reported that males migrate further upstream than females and that ripe
(in reproductive condition) males and females enter the river earlier
than nonripe fish (Fox et al., 2000). Most adults and subadults begin
moving from estuarine and marine waters into the coastal rivers in
early spring (i.e., March through May) when river water temperatures
range from 16.0 to 23.0 [deg]C (60.8 to 73.4 [deg]C) (Huff, 1975; Carr,
1983; Wooley and Crateau, 1985; Odenkirk, 1989; Clugston et al., 1995;
Foster and Clugston, 1997; Fox and Hightower, 1998; Sulak and Clugston,
1999; and Fox et al., 2000), while others may enter the rivers during
summer months (Fox et al., 2000). Some research supports the theory
that spring migration coincides with the general period of spring high
water (Chapman and Carr, 1995; Sulak and Clugston, 1999; and Ross et
al., 2001b), however, observations on the Choctawhatchee River have not
found a clear relationship between the timing of river entrance and
flow patterns (Fox et al., 2002).
Downstream migration from fresh to saltwater begins in September
(at about 23[deg]C (73.4[deg]F)) and continues through November (Huff,
1975; Wooley and Crateau,1985; and Foster and Clugston, 1997). During
the fall migration from fresh to saltwater, Gulf sturgeon may require a
period of physiological acclimation to changing salinity levels,
referred to as osmoregulation or staging (Wooley and Crateau, 1985).
This period may be short (Fox et al., 2002) as sturgeon develop an
active mechanism for osmoregulation and ionic balance by age one
(Altinok et al., 1997). On some river systems, timing of the fall
migration appears to be associated with pulses of higher river
discharge (Heise et al., 1999a and b; Ross et al., 2000 and 2001b; and
Parauka et al., in press).
Sturgeon ages 1 through 6 remain in the mouth of the Suwannee River
over winter. In late January through early February, young-of-the-year
Gulf sturgeon migrate down river for the first time (Sulak and
Clugston, 1999). Huff (1975) noted that juvenile Gulf sturgeon in the
Suwannee River most likely participated in pre- and post-spawning
migrations, along with the adults.
Findeis (1997) described sturgeon (Acipenseridae) as exhibiting
evolutionary traits adapted for benthic cruising. Tracking observations
by Sulak and Clugston (1999), Fox et al. (2002), and Edwards et al. (in
prep.) support that individual fish move over an area until they
encounter suitable prey type and density, at which time they forage for
extended periods of time. Individual fish often remained in localized
areas (less than 1 km\2\ (0.4 mi\2\) for extended periods of time
(greater than two weeks) and then moved rapidly to another area where
localized movements occurred again (Fox et al., 2002). It is unknown
precisely how much benthic area is needed to sustain Gulf sturgeon
health and growth, but because Gulf sturgeon have been known to travel
long distances (greater than 161 km (100 mi)) during their winter
feeding phase, significant resources must be necessary. These winter
migrations are an important strategy for feeding and for occasional
travel to non-natal rivers for possible spawning and resultant genetic
interchange among subpopulations. Bays and portions of Gulf of Mexico
waters adjacent to the lakes and bays near the mouths of the rivers
where Gulf sturgeon occur are believed to be important for feeding and/
or migrating (inter-river migrations that facilitate maintenance of the
natural hierarchy of between river genetic variability).
When temperature drops occur that are associated with major cold
fronts, researchers of the Escambia, Yellow, and Suwannee Rivers
subpopulations have been unable to locate adult Gulf sturgeon within
the bays (Craft et al., 2001; and Edwards et al., in prep.). They
hypothesize that the drop in water temperatures associated with cold
fronts disperses sturgeon to more distant foraging grounds. It is
currently
[[Page 13374]]
unknown whether Gulf sturgeon undertake extensive offshore migrations,
and further study is needed to determine whether important winter
feeding habitat occurs in farther offshore areas.
Sulak and Clugston (1999) described two hypotheses regarding areas
adult Gulf sturgeon may overwinter in the Gulf of Mexico in order to
find abundant prey. The first hypothesis is that Gulf sturgeon spread
along the coast in nearshore waters in depths less than 10 m (33 ft).
The alternative hypothesis is that they migrate far offshore to the
broad sedimentary plateau in deep water (40 to 100 m (131 to 328 ft))
west of the Florida Middle Grounds, where over twenty species of
bottom-feeding fish congregate in the winter (Darnell and Kleypas,
1987). Available data support the first hypothesis. Evaluation of
tagging data has identified several nearshore Gulf of Mexico feeding
migrations, but no offshore Gulf of Mexico feeding migrations or areas.
Telemetry data document that Gulf sturgeon from the Pearl River and
Pascagoula River subpopulations migrate from their natal bay systems to
Mississippi Sound and move along the barrier islands, with relocation
of tagged individuals greatest in the passes between islands (Ross et
al., 2001a; and Rogillio et al., 2002). Gulf sturgeon from the
Choctawhatchee River, Yellow River, and Apalachicola River have been
documented migrating in the nearshore Gulf of Mexico waters between
Pensacola and Apalachicola Bays (Fox et al., 2002; and F. Parauka,
pers. comm. 2002). Telemetry data in the Gulf of Mexico usually locate
sturgeon in depths of 6 m (19.8 ft) or less (Ross et al., 2001a; Fox et
al., 2002; Rogillio et al., 2002; and F. Parauka, pers. comm. 2002).
River-Specific Fidelity
Stabile et al. (1996) analyzed tissue from Gulf sturgeon in eight
drainages along the Gulf of Mexico for genetic diversity. They noted
significant differences among Gulf sturgeon stocks and suggested that
they displayed region-specific affinities and may exhibit river-
specific fidelity. Stabile et al. (1996) identified five regional or
river-specific stocks (from west to east): (1) Lake Pontchartrain and
Pearl River, (2) Pascagoula River, (3) Escambia and Yellow Rivers, (4)
Choctawhatchee River, and (5) Apalachicola, Ochlockonee, and Suwannee
Rivers.
Tagging studies suggest that Gulf sturgeon exhibit a high degree of
river fidelity (Carr, 1983). From 1981 to 1993, 4,100 fish were tagged
in the Apalachicola and Suwannee Rivers. Of these, 868 total fish were
recaptured (FWS et al. 1995). Of the recaptured fish, 860 fish (99
percent) were recaptured in the river of their initial collection.
Eight fish moved between river systems and represented less than 1
percent (0.009) of the 868 total fish recaptured (FWS et al., 1995). We
have no information documenting spawning adults in non-natal rivers.
Foster and Clugston (1997) noted that telemetered Gulf sturgeon in the
Suwannee River returned to the same areas as the previous summer, and
suggested that chemical cuing may influence distribution.
To date, biologists have documented a total of 22 Gulf sturgeon
making inter-river movements from natal rivers. They are as follows:
Apalachicola River to Suwannee River, six Gulf sturgeon (Carr et al.,
1996b); Apalachicola River to Deer Point Lake (North Bay of the St.
Andrew Bay system), one fish (Wooley and Crateau, 1985); Suwannee River
to Apalachicola River, three sturgeon (Carr et al., 1996b; and F.
Parauka, pers. comm. 2002); Choctawhatchee River to Apalachicola River,
one sturgeon (F. Parauka, pers. comm. 2002); Yellow River to
Choctawhatchee River, three female sturgeon (two adult, one subadult)
(Craft et al., 2001); Yellow River to Louisiana Estuarine area, one
female sturgeon (Craft et al., 2001); Escambia River to Yellow River,
one mature female on spawning grounds (Craft et al., 2001); Suwannee
River to Ochlockonee River, one sturgeon (FWS et al., 1995);
Choctawhatchee River to Escambia River, one male sturgeon (Fox et al.,
2002); Choctawhatchee River to Escambia, one female sturgeon (Fox et
al., 2002); Pearl River (Bogue Chitto) to Pascagoula River, one
sturgeon (Ross et al., 2001b); Choctawhatchee River to Pascagoula
River, one subadult sturgeon (Ross et al., 2001b); and Pascagoula River
to Yellow River, one sturgeon (Ross et al., 2001b).
Tallman and Healey (1994) noted that observed straying rates
between rivers were not the same as actual gene flow rates, i.e.,
inter-stock movement does not equate to interstock reproduction. The
gene flow is low in Gulf sturgeon stocks, with each stock exchanging
less than one mature female per generation (Waldman and Wirgin, 1998).
Previous Federal Action
Federal action on the Gulf sturgeon began in 1982, when the fish
was included as a Category 2 candidate species for listing in the FWS's
vertebrate notices of review dated December 30, 1982 (47 FR 58454) and
September 18, 1985 (50 FR 37958), and in the animal notice of review
dated January 6, 1989 (54 FR 554). At that time, the FWS gave Category
2 designation to species for which listing as threatened or endangered
was possibly appropriate, but for which additional biological
information was needed to support a proposed rule. A status report on
the Gulf sturgeon (Hollowell, 1980) had concluded that the fish had
been reduced to a small population due to overfishing and habitat loss.
In 1988, the FWS completed a report on the conservation status of the
Gulf sturgeon, which recommended listing it as a threatened species
(Barkuloo, 1988).
The Services jointly proposed the Gulf sturgeon for listing as a
threatened species on May 2, 1990 (55 FR 18357). In that proposed rule,
we stated that designation of critical habitat was not prudent due to
the species'' broad range and the lack of knowledge about specific
areas used by the species. We published the final rule on September 30,
1991 (56 FR 49653) to add Gulf sturgeon to the list of threatened
species, and included a special rule under section 4(d) of the Act to
allow the take of Gulf sturgeon, in accordance with applicable State
fish and wildlife conservation laws and regulations, for educational
and scientific purposes, the enhancement of propagation or survival of
the species, zoological exhibition, and other conservation purposes.
Section 4(a)(3)(A) of the Act requires that critical habitat be
designated concurrently with a determination that a species is
endangered or threatened, to the maximum extent prudent and
determinable. When such a designation is not determinable at the time
of final listing of a species, or if a prompt determination of
endangered or threatened status is essential to the conservation of the
species, section 4(b)(6)(C) of the Act provides for an additional year
to promulgate a final critical habitat designation. In the final rule
listing Gulf sturgeon as a threatened species, we found that a critical
habitat designation may be prudent but was not determinable. We found
that prompt determination of threatened status was essential to the
conservation of the species and stated that we would make a final
decision on designation of critical habitat by May 2, 1992. This
decision, however, was not made.
On August 11, 1994, the Sierra Club Legal Defense Fund, Inc.
(Fund), on behalf of the Orleans Audubon Society and Florida Wildlife
Federation, gave written notice of their intent to file suit against
the Department of the Interior for failure to designate critical
habitat for the Gulf sturgeon within the statutory time limits
established under
[[Page 13375]]
the Act. The Fund filed suit on October 11, 1994 (Orleans Audubon
Society v. Babbitt, Civ. No. 94-3510 (E.D. La)). Following a court
order on August 9, 1995, granting the Fund's motion for summary
judgement, the Services published a notice of decision on critical
habitat designation for the Gulf sturgeon on August 23, 1995 (60 FR
43721). We determined that critical habitat designation was not prudent
based on the lack of additional conservation benefit to the species.
On September 22, 1995, the Services and the Gulf States Marine
Fisheries Commission approved the Gulf Sturgeon Recovery/Management
Plan (FWS et al., 1995). The recovery plan established the criteria
that must be met prior to the delisting of the Gulf sturgeon. The
recovery plan also identified the actions that are needed to assist in
the recovery of the Gulf sturgeon.
On August 12, 1996, the plaintiffs filed a motion to add the
Department of Commerce as a defendant in the lawsuit. The Fund amended
their complaint to challenge the August 1995 ``not prudent''
determination. On October 30, 1997, the court granted the plaintiffs'
motion for summary judgment, with relief restricted to a remand of the
``not prudent'' determination to the Services, requiring that the
Services publish a determination on designation of critical habitat,
based on the best scientific information available. On February 27,
1998, we published a notice of decision (63 FR 9967) on critical
habitat designation for the Gulf sturgeon. We again determined that
lack of additional conservation benefit from critical habitat
designation for this species made such designation not prudent.
On December 18, 1998, the Sierra Club sued the Services challenging
the new determination not to designate critical habitat for the Gulf
sturgeon (Sierra Club v. U.S. Fish and Wildlife Service et al. CA No.
98-3788 (E.D. La.)). On January 25, 2000, the Court issued an order
granting our motion for summary judgment and dismissing the complaint.
The Sierra Club filed an appeal and, in March 2001, the United States
Court of Appeals for the 5th Circuit reversed the decision of the
District Court and instructed the District Court to remand the decision
to us for reconsideration (Sierra Club v. U.S. Fish and Wildlife
Service, 245 F.3d 434 (5th Cir. 2001)). On August 3, 2001, the District
Court issued an order directing us to publish a proposed decision
concerning critical habitat designation for the Gulf sturgeon by
February 2, 2002, and a final decision by August 2, 2002. Negotiation
with the plaintiff resulted in an agreement to submit the proposed
decision to the Federal Register on or by May 23, 2002, and the final
decision on or by February 28, 2003.
On June 6, 2002, we published a proposed rule in the Federal
Register in which we announced our determination that designation of
critical habitat was prudent, proposed designation of critical habitat
for Gulf sturgeon, announced four public meetings and hearings, and
requested comments on the proposal by September 23, 2002 (67 FR 39106).
On August 8, 2002, we published a notice in the Federal Register (67 FR
51530) announcing the availability of the draft economic analysis and
the extension of the comment period through October 7, 2002. We also
corrected the address of a public hearing to be held in Defuniak
Springs, FL on August 20, 2002. We held public meetings and public
hearings on the proposed rule and draft economic analysis at four
locations: Live Oak, Florida, on August 19, 2002; Defuniak Springs,
Florida, on August 20, 2002; Biloxi, Mississippi, on August 21, 2002;
and Kenner, Louisiana, on August 22, 2002.
Summary of Comments and Recommendations
We contacted appropriate Federal, State, and local agencies,
scientific organizations, and other interested parties and invited them
to comment on the proposal to designate critical habitat for the Gulf
sturgeon. In addition, we published newspaper notices inviting public
comment on the proposed rule and the draft economic analysis, and
announced the public meetings and hearings in the following newspapers:
St. Petersburg Times, Pensacola News Journal, Panama City The News
Herald, Fort Walton Daily News, Crystal River Citrus County Chronicle,
Tallahassee Democrat, and The Gainesville Sun, in Florida; The Brewton
Standard, Dothan Eagle, Geneva County Reaper, and Mobile Register, in
Alabama; Hinds County The Clarion-Ledger and Gulfport's The Sun Herald,
in Mississippi; and New Orleans The Times-Picayune and Baton Rouge's
The Advocate in Louisiana.
We held four public meetings and four public hearings on the
proposed rule (see ``Previous Federal Action'' section for dates and
locations). Transcripts of these hearings are available for inspection
(see ADDRESSES).
We received written letters or e-mails from a total of 126 parties
which included 2 congressional representatives from Georgia, 10 Federal
agencies, 13 State agencies, 5 county governments, 93 groups or
individuals, and 3 peer reviewers. Of the 128 total responses, 29
supported the proposed rule, 2 opposed it, and the rest were neutral.
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited independent opinions from six knowledgeable
individuals having expertise either with the species, with the
geographic region where the species occurs, and/or familiarity with the
principles of conservation biology. Three of these experts provided a
written response generally supporting the designation and provided
additional information that we have incorporated into the rule as
appropriate. We appreciate the responses of these peer reviewers, and
believe their input has improved the content of this rule.
We reviewed all comments received for substantive issues and new
data regarding critical habitat and Gulf sturgeon. Some comments
resulted in changes between the proposed and final designations, and
those comments are discussed in the ``Summary of Changes From the
Proposed Rule'' section of this document. Written comments and oral
statements presented at the public hearings and received during the
comment period are addressed in the following summary. For readers'
convenience we have assigned comments to major issue categories. We
have combined similar comments into single comments and responses.
Peer Review Comments
Comment 1: Three peer reviewers recommended that additional areas
be included as critical habitat, sometimes stating that the areas
contain the primary constituent elements upon which Gulf sturgeon rely.
Others requested inclusion based on historic use or potential use by
the Gulf sturgeon in these areas. The areas requested for inclusion
were St. Joseph Bay in Florida, the western portion of Lake
Pontchartrain and all of Lake Maurepas in Louisiana, and the Strong
River in Mississippi.
Also, twenty eight commenters recommended that additional areas be
included as critical habitat, with some stating that the areas contain
the primary constituent elements. Others requested inclusion based on
historic use or potential use by the Gulf sturgeon in these areas.
Other commenters expressed concerns that the proposed designation did
not include all of the current range of the Gulf sturgeon. The areas
requested for inclusion were the Ochlockonee River, Withlacoochee
[[Page 13376]]
River (central Florida river, not the tributary of the Suwannee River),
West Bay, East Bay of St. Andrew Bay system, St. Andrew Bay, St. Joseph
Bay, Tampa Bay, and the Hillsborough River in Florida; an additional
Choctawhatchee River reach, Mobile Bay, Murder Creek (tributary of the
Conecuh River), Alabama River, Bayou La Batre, and Perdido Bay in
Mobile Bay, in Alabama; Strong River in Mississippi; the western
portion of Lake Pontchartrain, Tickfaw River, Tchefuncte River, Lake
Maurepas, Chandeleur Sound, in Louisiana; and the coastline from
Mississippi to Tampa Bay, Florida.
Our Response: Section 4(b)(2) of the Act directs us to designate
critical habitat on the basis of the best scientific data available.
However, no or insufficient data were provided to us to support
inclusion of any of the above areas as critical habitat. While many of
these areas may have historically supported Gulf sturgeon populations
and/or may currently support populations, we cannot document that they
are essential to the conservation of the Gulf sturgeon.
The definition of critical habitat in section 3(5)(A) of the Act
includes ``(I) specific areas within the geographic area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographic area occupied by a species at the time it is
listed, upon a determination that such areas are essential for the
conservation of the species.'' By definition, essential critical
habitat generally describes a subset of the area potentially containing
primary constituent elements for a species. As discussed in the methods
section of the proposed and this final rule, to determine areas
essential for the conservation of the Gulf sturgeon, we used the best
scientific data available pertaining to known habitat requirements of
the species. Areas designated as critical habitat for the Gulf sturgeon
are within the current known range of the species and contain one or
more primary constituent elements essential for the conservation of the
species. In our proposed and final designation of critical habitat, we
selected essential habitat areas that currently contain populations or
provide habitat components essential to the conservation of the
species. During this analysis, it was determined that some areas
containing one or more primary constituent elements did not represent
suitable habitat or were otherwise not essential to the conservation of
the species.
Comment 2: One peer reviewer stated that the designation of
critical habitat for the Chickasawhay River (Unit 2) should be expanded
upstream to the beginning of the Chickasawhay River starting at the
confluence of the Chunky and Okatibbee Rivers, north of Enterprise
(Clarke County, Mississippi). This area contains the primary
constituent elements as noted in the proposed rule, including potential
spawning habitat. Research efforts conducted during spring 2002 by the
University of Southern Mississippi (USM)-MMNS Gulf sturgeon research
group documented the most upstream movement of a radio-tagged
individual on the Chickasawhay River traveling as far upstream as the
confluence of the Chunky and Okatibbee rivers. This individual was
originally tagged at the mouth of the Pascagoula River during early-
March 2002.
Our Response: The area requested for inclusion would add 19 rkm (12
rmi) to the designation on the Chickasawhay River in Mississippi.
However, we believe that what we proposed for the Gulf sturgeon
including the portion of the Chickasawhay River proposed for
designation, includes sufficient habitat to conserve the species.
Accordingly, we have not made the requested change. Moreover, areas
outside the critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1) and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the section 9 take prohibitions.
Comment 3: One peer reviewer questioned whether all Gulf sturgeon
overwinter in the marine and estuarine environment and what the
potential impacts on the population would be if critical habitat had a
temporal component to its designation.
Our Response: A few Gulf sturgeon have been documented remaining at
or near their spawning grounds throughout the winter (Wooley and
Crateau, 1985; Slack et al., 1999; and Heise et al,. 1999a). However,
this is an exception to the normal behavior of adult Gulf sturgeon.
During winter months, juveniles often remain in the estuary near the
river mouth, but adult and sub-adults leave the riverine habitat to
forage in the estuarine and marine areas. Critical habitat has no
temporal boundaries, only spatial. If an area is designated as critical
habitat, it receives equal protection throughout the year regardless of
the presence or absence of the species.
Comment 4: One peer reviewer and one commenter questioned our
rationale for deriving seven subpopulations from the five that were
proposed by Stabile et al. (1996).
Our Response: We first evaluated the Gulf sturgeon in the context
of its current distribution throughout the historic range to determine
what portion of the range must be designated to ensure conservation of
the species. We considered several factors in this evaluation: (1)
Maintaining overall genetic integrity and natural rates of inter-river
genetic exchange, thereby minimizing the potential for inbreeding, (2)
retaining potentially important selective pressure at the margins of
the species' range by protecting the eastern- and western-most
subpopulations, (3) decreasing the extinction risk of a subpopulation
by protecting adjacent subpopulations that can provide a rescue effect,
if needed, (4) avoiding the potential for subpopulation extirpation
from environmental catastrophes, and (5) protecting sufficient habitat
essential to the conservation of the species.
In their analysis of Gulf sturgeon subpopulations from eight
drainages along the Gulf of Mexico for genetic diversity, Stabile et
al. (1996) identified five regional or river-specific stocks (from west
to east)--(1) Lake Pontchartrain and Pearl River, (2) Pascagoula River,
(3) Escambia and Yellow Rivers, (4) Choctawhatchee River, and (5)
Apalachicola, Ochlockonee, and Suwannee Rivers.
All five genetic stocks are represented by the seven subpopulations
occupying the critical habitat units. The number, distribution, and
range of the seven Gulf sturgeon subpopulations included in these units
are necessary to protect and support the extent and diversity of the
species' genetic integrity and can provide a rescue effect, if needed
(see ``Methods'' section). We believe that these seven river systems,
with their associated estuarine and marine environments, represent
habitat that is essential for the conservation of the Gulf sturgeon.
Comment 5: Four commenters, including one peer reviewer, noted that
the western boundary in Lake Pontchartrain (Unit 8) seemed arbitrary.
Response: Critical habitat areas in Unit 8 provide juvenile,
subadult and adult feeding, resting and passage habitat for Gulf
sturgeon from the Pascagoula and Pearl Rivers subpopulations. Lake
Pontchartrain is divided into eastern and western areas by the Lake
Pontchartrain Causeway (a twin highway bridge supported by pilings
extending 33.6 km (20.9 mi) from the north to the south). Gulf
[[Page 13377]]
sturgeon from the Pearl River subpopulation have been documented (by
tags) to use the eastern half of Lake Pontchartrain. Researchers
believe that the eastern portion of the lake provides important winter
habitat for juveniles and subadults, and they have located tagged
individuals in Lake Pontchartrain and have repeatedly caught untagged
sturgeon between Goose Point and Point Platte, an area believed to be
used for winter feeding. While Gulf sturgeon have been documented in
the western portion of the Lake (generally near the mouth of small
rivers), it is not known whether those sturgeon are part of the Pearl
and Bogue Chitto Rivers spawning subpopulation, or if they are part of
a smaller spawning subpopulation that might exist within the Tickfaw,
Tangipahoa, or Tchefuncte Rivers. We, therefore, conclude that the
eastern portion, but not the western portion, of Lake Pontchartrain
provides essential winter habitat for the Pearl River subpopulation, as
data supports inclusion of the eastern portion of Lake Pontchartrain as
critical habitat. Although the Lake Pontchartrain Causeway does not
restrict fish movement, it does provide an appropriate and easily
identifiable boundary.
Public Comments
Issue A: General Biological Comments
Comment 6: One commenter believes that forestry practices (e.g.,
the use of silvicultural Best Management Practices and application of
streamside management zones, to protect surface water quality during
forestry operations) actively contribute to the conservation of the
Gulf sturgeon by providing an important incentive for private
landowners to retain forested riverine corridors adjacent to sturgeon
habitat.
Our Response: We agree that Best Management Practices when applied
correctly to silvicultural activities do protect and improve the
quality of surface waters and, therefore, do contribute to the
conservation of the Gulf sturgeon.
Comment 7: Some commenters questioned the basis of our statement
that adult Gulf sturgeon do not feed while in freshwater.
Our Response: As stated in the proposed and final rules (see
``Feeding Habits'' section), many reports indicate that subadult and
adult Gulf sturgeon fast and lose between 4 and 15 percent of their
total body weight while in freshwater, and then compensate the loss
during winter feeding in estuarine and marine environments (Carr, 1983;
Wooley and Crateau, 1985; Clugston et al,. 1995; Morrow et al., 1998a;
Heise et al, 1999a; Sulak and Clugston, 1999; and Ross et al., 2000).
Gu et al. (2001) tested the hypothesis that subadult and adult Gulf
sturgeon do not feed significantly during their annual residence in
freshwater by comparing stable carbon isotope ratios of tissue samples
from subadult and adult Gulf sturgeon and their potential freshwater
and marine food sources. A large difference in isotope ratios between
freshwater food sources and fish muscle tissue suggests that subadult
and adult Gulf sturgeon do not feed significantly in freshwater. The
isotope similarity between subadult and adult Gulf sturgeon and marine
food resources strongly indicates that this species relies almost
entirely on the marine food web for its growth (Gu et al., 2001).
Comment 8: One commenter questioned whether fish tagging studies
were limited to adults or whether they included other life stages as
well.
Our Response: Juveniles (age 1 to 6 years), subadults (age 6 years
to sexual maturity), and adults (sexually mature) have been marked with
different types of equipment, but primarily with T-bar tags (external)
and passive integrated transponder (PIT) tags (internal). Young-of-the-
year less than 20 cm (7.8 inches) tail length are too small to tag with
the standard markers and therefore are exclusively pit tagged (Mike
Randall, USGS, pers. comm. 2002).
Comment 9: Four commenters had questions regarding Gulf sturgeon
prey items and foraging areas.
Our Response: As stated in the proposed rule (67 FR 39107), the
diet of the Gulf sturgeon depends on its life history stage. While
adults are not known to forage in freshwater, juveniles and young-of-
the-year do. We have used data from stomach content analysis and
telemetry studies to identify probable Gulf sturgeon foraging areas,
i.e., those areas with substrate that supports the known prey items,
coupled with tracking data indicating sturgeon presence. We relied on
two observations to conclude that subadult and adult Gulf sturgeon do
not forage in freshwater: (1) Gulf sturgeon lose a substantial
percentage of their body weight while in freshwater in summer and then
compensate for the loss during winter, and (2) stable isotopes from
sturgeon muscle tissue and their potential marine food sources are
similar, while there is a large difference between muscle tissue and
potential freshwater food sources. Gulf sturgeon researchers and the
Services are certain that the existing data support these conclusions
regarding Gulf sturgeon food items and foraging locations.
Comment 10: Commenters wondered what we know of Gulf sturgeon's
overall use of estuarine and marine waters.
Our Response: While research indicates that Gulf sturgeon utilize
estuarine and marine areas for staging, resting and foraging,
researchers continue to investigate Gulf sturgeon over-wintering
behavior and locale. We are not able, at this time, to readily discern
the Gulf sturgeon's overall utilization of marine and estuarine areas
and we look forward to evaluating additional information when it
becomes available.
Comment 11: Some commenters questioned whether we were
knowledgeable of Gulf sturgeon migration routes.
Our Response: We have identified and described Gulf sturgeon
spawning migrations from coastal/marine areas to the rivers; however,
inter-riverine migratory patterns are not well understood. When we
could identify inter-riverine movements (mostly from telemetry data),
we included appropriate inshore coastal waters in the critical habitat
designation to provide protection for migrating sturgeon (e.g., Unit
11). Research is ongoing to investigate Gulf sturgeon inter-riverine
migrations (e.g., recording broad movement patterns via satellite
tags), and researchers are presently collating data to analyze Gulf-
wide movements.
Issue B: Site-specific Biological Comments
Comment 12: One commenter questioned whether any areas south of the
Suwannee River in Florida were historic critical habitat for Gulf
sturgeon.
Our Response: Since this is the first critical habitat designation
for the Gulf sturgeon, we presume that the commenter is asking whether
areas south of the Suwannee River were of importance to the Gulf
sturgeon historically. There are few reported sightings of Gulf
sturgeon using rivers south of the Suwannee River, but there are
historic and recent records of Gulf sturgeon in Tampa Bay and Charlotte
Harbor. At one time, the Tampa Bay area produced large commercial
landings of Gulf sturgeon. There have been reported Gulf sturgeon
sightings in the Florida Keys during winter months. Some biologists
theorize that the Suwannee River population of Gulf sturgeon may winter
in the Tampa Bay and Charlotte Harbor areas; however, further research
is needed in this area.
[[Page 13378]]
Comment 13: Two commenters asked how we determined the upstream
limit on the Suwannee River, and one commenter stated that the
published literature does not report the use of the Suwannee River
upstream of 230 rkm (143 rmi).
Our Response: We received unpublished information from Gulf
sturgeon experts (Ken Sulak, USGS, pers. comm. 2002; Jim Clugston,
retired USGS, pers. comm. 2002) of sightings of young-of-the-year Gulf
sturgeon as far upstream on the Suwannee River as to the confluence
with Roaring Creek at 304 rkm (200 rmi). This is approximately 11 rkm
(18 rmi) upstream of the designated critical habitat, which stops at
293 rkm (182 rmi). We believe that the area known as Big Shoals on the
Suwannee River captures the upstream-most significant spawning areas
and, therefore, we included upstream to this point. We have included
the 0.31 rkm (0.50 rmi) of habitat upstream from Big Shoals to the
confluence with Long Branch for ease of identification. It is correct
that the published literature on the Suwannee River documents spawning
sites no further upstream than at 230 rkm (143 rmi), but we have relied
on the above unpublished literature from reliable sources to determine
the upstream limit on this system.
Comment 14: Two commenters requested that the Services omit areas
adjacent to military lands from the designation under the Act's section
4(b)(2). The rationale presented included proximity to a military base
that is used for military testing and training, restricting military's
ability to quickly respond to training and testing due to long-lead
time administrative considerations required for consultations, and
reducing the number of formal consultations performed by the Services.
Our Response: The Department of Defense (DOD) did not request that
areas adjacent to military lands be excluded from critical habitat
designation. In any case, we have no data indicating that these areas
should be excluded. We have been successfully and efficiently
conducting section 7 consultations with military bases in these
critical habitat areas for over 10 years, and we intend to continue
working as partners with the armed forces to uphold the Act without
compromising national security. We do not foresee any impacts to
military readiness as a result of the adjacent critical habitat
designation.
Comment 15: One commenter reported that unusually large fish have
been taken from a fish trap on the Tennessee River near the mouth of
Chickamauga Creek, above Chattanooga, Tennessee.
Our Response: Historic information indicates that Gulf sturgeon did
not venture as far inland as Tennessee, so we are fairly certain the
large fish captured in the fish traps were not Gulf sturgeon. These
fish may have been lake sturgeon (A. fulvescens) or shovelnose sturgeon
(Scaphirhynchus platorhynchus), although these species are uncommon,
particularly in east Tennessee. Paddlefish (Polyodon spathula), which
attain weights of over 45 kg (100 lb) are found in the Tennessee River;
however, additional information would be necessary to clearly identify
the species involved and none was provided by the commenter.
Issue C: National Environmental Policy Act (NEPA) Compliance
Comment 16: One commenter stated that the Services should withdraw
the proposed rule pending compliance with NEPA, through preparation of
an environmental assessment or an environmental impact statement (EIS).
The commenter stated that FWS's position that NEPA only applies to
critical habitat designations in the 10th Circuit, based upon that
circuit's 1996 decision in Catron County Bd. of Comm. v. USFWS, 75 F.3d
1429, is unlawful. The commenter stated that the two exceptions to NEPA
compliance identified by the 10th Circuit (i.e., unavoidable conflict
between NEPA and another statute or duplicative procedures provided by
NEPA and a second statute) are not present in the case of critical
habitat designation. The commenter stated that the proposed critical
habitat rule was subject to NEPA because the effects of the designation
are broader than protecting habitat. They believe that future Federal
actions that are likely to adversely affect critical habitat will be
prohibited. They also believe that an environmental assessment may
reveal a more effective alternative to preventing extinction of the
sturgeon than designating critical habitat.
Our Response: The Services believe that in Douglas Co. v. Babbitt,
48 F.3d 1495 (9th Cir. 1995), the Court correctly interpreted the
relationship between NEPA and critical habitat designation under the
Act. The Ninth Circuit Court rejected the suggestion, identical to that
raised by the commenter, that irreconcilable statutory conflict or
duplicative statutory procedures are the only exceptions to application
of NEPA to Federal actions. The Court held that the legislative history
of the Act demonstrated that Congress intended to displace NEPA
procedures with carefully crafted procedures specific to critical
habitat designation. Further, the Douglas County Court held that the
critical habitat mandate of the Act conflicts with NEPA in that,
although the Secretary may exclude areas from critical habitat if such
exclusion would be more beneficial than harmful, the Secretary has no
discretion but to include areas in the designation if exclusion of such
areas would result in extinction. This lack of discretion renders
application of NEPA procedures (e.g., consideration of broad
environmental impacts, alternatives analysis) superfluous (this lack of
discretion to consider broad environmental impacts was the basis for
the 6th Circuit's determination that NEPA does not apply to listing
decisions under the Act, in Pacific Legal Foundation v. Andrus, 657 F2d
829 (6th Cir. 1981)). The Court noted that the Act also conflicts with
NEPA's demand for impact analysis, in that the Act dictates that the
Secretary ``shall'' designate critical habitat for listed species based
upon an evaluation of economic and other ``relevant'' impacts, which
the Court interpreted as narrower than NEPA's directive. Finally, the
9th Circuit, based upon a review of precedent from several circuits
including the 5th Circuit, held that an EIS is not required for actions
that do not change the physical environment.
In addition, we note that Federal actions that might adversely
affect critical habitat are not necessarily prohibited. Many Federal
actions may adversely affect critical habitat without the effect rising
to the level of destruction or adverse modification of the critical
habitat. In those cases where we find that a Federal project would
destroy or adversely modify critical habitat, we must identify
reasonable and prudent alternatives (RPAs) to the project that would
avoid the destruction or adverse modification (see ``Effects of
Critical Habitat Designation'' section). The RPAs must be capable of
being implemented in a manner consistent with the intended purpose of
the action, be consistent with the action agency's legal authority and
jurisdiction, and be economically and technically feasible.
Issue D: Section 7 Consultation Issues
Comment 17: One commenter expressed concerns that the critical
habitat designation will make it more difficult for fisheries managers
to sample for non-endangered fish in these rivers and fears they will
be required to apply for permits and provide annual reports, and that
in some cases, fishery activities may be stopped due to
[[Page 13379]]
sampling being conducted in areas designated as critical habitat.
Our Response: The Gulf sturgeon is a listed species and thereby
protected under the Act regardless of whether or not critical habitat
has been designated, therefore permits and annual reporting may be
necessary if the activities being conducted for fisheries management
may result in the incidental take of a Gulf sturgeon. Given that the
fish has been federally protected for 10 years and fisheries management
in all states throughout the Gulf sturgeon's range has proceeded
unhampered, we are unclear as to the reasons for this concern. Critical
habitat designation may result in required project modifications only
for activities with a Federal nexus and then only if the activity were
to destroy or adversely modify the primary constituent elements
contained in the designated habitat (i.e., prey, spawning habitat,
water quality, water quantity, sediment quality, or migratory passage).
Comment 18: One commenter questioned whether water quality issues
may arise from the establishment of the critical habitat and another
requested that the existing government databases be updated to reflect
current water quality of southern rivers, since water quality has
improved subsequent to the historic decline of the species.
Our Response: As required under section 7 of the Act, the
Environmental Protection Agency (EPA) consults with us regarding water
quality standards to ensure that they are protective of endangered and
threatened species. The EPA anticipates consulting with us every three
years as part of its triennial review of State delegated water quality
standards for Alabama, Florida, Mississippi, and Louisiana under
section 303(d) of the Clean Water Act. During each review period all
data relative to Gulf sturgeon and water quality will be updated and
reviewed to ensure that the standards continue to be protective. The
EPA recently released a new database on the water quality of the
nation's rivers. This information is available on its web site
(www.epa.gov). Future consultations will consider impacts to Gulf
sturgeon and associated critical habitat, and will take changes in
water quality into account.
Comment 19: One commenter questioned whether the FWS provided
information on flow requirements needed for critical habitat in the
Apalachicola, Chattahoochee, and Flint Rivers (ACF) negotiations and
whether such information was available to the public.
Our Response: The FWS presented information about the hydrological
characteristics of potential sturgeon spawning habitat on the
Apalachicola River as a result of separate requests from the Georgia
and Florida negotiators to the ACF Compact. This information is
summarized in our response to comment 42. Our information was based on
a single set of measurements at one potential spawning site, and for
reasons summarized in our response to comment 41, we do not
characterize this information as ``flow requirements needed for
critical habitat.'' This information is available to the public upon
request. However, the U.S. Army Corps of Engineers (USACE) is
conducting more detailed surveys intended to augment and refine our
initial measurements and will use these new measurements in preparing
its biological assessment of the effects of Federal reservoir
operations on federally-protected species and their habitats.
Comment 20: One commenter requested that the Services withdraw
their proposed critical habitat designation for the Gulf sturgeon and
instead address any needs of the species in the context of the ongoing
ACF Compact process.
Our Response: The ACF Compact is a Federal law that authorizes,
among other things, the States of Alabama, Florida, and Georgia, but
not the Federal government, to negotiate a water allocation formula for
equitably apportioning the surface waters of the ACF Basin. Under the
leadership of the non-voting Federal Commissioner to the Compact,
Federal agencies, including the Services, have provided technical
assistance to the States' negotiators on various water management
issues, including the needs of species protected under the Act. The
State negotiators are not obligated to act upon any such technical
assistance, and the Compact does not relieve Federal agencies,
including the Services, of responsibilities under other Federal
statutes or court rulings. This rule designating critical habitat
fulfills our requirements under the Act and the order of the United
States Court of Appeals for the Fifth Circuit.
Comment 21: One commenter stated that by designating the
Apalachicola River as critical habitat for the Gulf sturgeon, the
Federal government necessarily becomes involved in the water
negotiations for the ACF Compact and usurps authority from the State of
Georgia to negotiate stream flows in that river basin.
Our Response: State and Federal roles under the ACF Compact are
quite distinct, as noted in our response to comment 20, and this rule
in no way alters those roles. No authority is taken from the States, as
the critical habitat provisions of the Act apply to Federal agencies
and their actions only. Federal agencies acting in the ACF Basin are
obligated to comply with sections 7 and 10 of the Act with or without
an ACF Compact, and the States are solely empowered to negotiate a
water allocation formula for the ACF Basin with or without designated
critical habitat for the Gulf sturgeon.
Comment 22: The USACE's Mobile District expressed concern with
potential requirements to alter reservoir operations at the Jim
Woodruff Lock and Dam on the Apalachicola River in Florida, in order to
support minimum flow for Gulf sturgeon spawning. They are concerned
that a critical habitat designation could require substantial upstream
flow releases.
Our Response: As noted in the response to comment 42, preliminary
data suggest that if adjustments to reservoir operations are reasonable
and prudent in the conservation of the sturgeon, such adjustments would
likely occur infrequently, since it appears that flows do not limit
sturgeon spawning habitat availability in most years on the
Apalachicola River. Under section 7(a)(2) of the Act, Federal agencies
must avoid jeopardizing the continued existence of a species or the
destruction or adverse modification of designated critical habitat.
During the consultation process, Federal agencies share responsibility
with us for determining what operational adjustments, if any, would be
reasonable and prudent for sturgeon conservation. We acknowledge that
the USACE must consider its responsibilities for flood control, power
generation, navigation, water quality, other fish and wildlife, etc.,
as well as listed species conservation, in making its operational
decisions, and we appreciate the complexities of these decisions.
Comment 23: One commenter objected to critical habitat designation
because it would impede construction of any dam deemed necessary by the
public for water supply, flood control, and recreation.
Our Response: The Act's requirements regarding proposed and
designated critical habitat apply only to Federal actions, such as
constructing Federal reservoirs or issuing Federal permits for non-
Federal reservoirs (e.g., a Clean Water Act section 404 permit). For
such actions, the Federal agency's responsibility is to consult with us
to ensure that its actions are not likely to jeopardize the continued
existence of listed species or destroy or adversely modify designated
critical habitat. Reasonable and prudent alternatives to
[[Page 13380]]
avoid jeopardy or critical habitat destruction resulting from reservoir
construction, or reasonable and prudent measures to minimize take
resulting from reservoir construction, would depend entirely on the
size, location, and operational plan of the reservoir and its effects
on the primary constituent elements (e.g., flow regime, water quality,
passage). Reservoirs constructed downstream of spawning habitat would
have far different and likely greater impacts than those constructed
upstream of spawning habitat or on tributaries.
Comment 24: Three commenters requested clarification and examples
of specific activities that may affect essential features of the
designated area, a quantitative definition or explanation of
``appreciably reduce,'' and information on how we intend to quantify
the degree of impacts. One commenter requested that a mechanism be
developed to assess the severity of the action based on the ability of
the impacted area to recover as viable habitat.
Our Response: The value of critical habitat is appreciably
diminished when an action considerably reduces the capability of
designated or proposed critical habitat to satisfy requirements
essential to the conservation of a listed species. We continue to
consult with agencies to determine the effects of an action on the
primary constituent elements within the designated critical habitat by
utilizing the best available scientific data. It is our intent to
carefully assess each proposed project within Gulf sturgeon critical
habitat and analyze how the proposed action may impact (both directly
and indirectly; both temporally and spatially) those physical or
biological features that were the basis for determining the habitat to
be critical. As stated in the proposed rule, actions that may destroy
or adversely modify Gulf sturgeon critical habitat may include, but are
not limited to, dredging; dredge material disposal; channelization; in-
stream mining; land uses that cause excessive turbidity or
sedimentation; water impoundment; hard-bottom removal for navigation
channel deepening; water diversion; dam operations; release of
chemicals, biological pollutants, or heated effluents into surface
water or connected groundwater via point sources or dispersed non-point
sources; release of chemical or biological pollutants that accumulate
in sediments; and other physical or chemical alterations of channels
and passes. Note, however, that these same activities may be carried
out in a way that does not destroy or adversely modify critical
habitat. Such assessments are highly site and fact specific and the
information about the species and its habitat is continually expanding.
Therefore, whether the ``appreciably diminish'' threshold has been met
is a consultation-specific determination.
Comment 25: One commenter expressed concerns that the critical
habitat designation will prevent maintenance dredging which is required
for continued use of the Gulf Intracoastal Waterway (GIWW).
Our Response: Gulf sturgeon migration and feeding may occur within
the GIWW in some of the proposed units. As stated in the proposed rule
(67 FR 39114), portions of the GIWW that consist primarily of excavated
land cuts and canals have been excluded from this designation because
they were not available to the species historically, and therefore, are
not considered to be essential for the conservation of the species.
The GIWW requires periodic dredging by the USACE to maintain safe
and adequate passage. As stated in the proposed rule (67 FR 39125),
dredging is an action that may destroy or adversely modify Gulf
sturgeon critical habitat. We will work closely with the USACE to
identify appropriate measures to reduce dredging impacts to Gulf
sturgeon critical habitat while allowing maintenance dredging to
continue in the GIWW without interruption.
Issue E: Public Involvement
Comment 26: Three commenters had questions and concerns regarding
boating and sturgeon with regard to records of boat strikes on sturgeon
and options for regulating boat speed. One commenter stated that
critical habitat is just another way to impose restrictions and
regulations on the boating public.
Our Response: Regulating speed of boats to prevent sturgeon injury
or death would be an issue related to ``take'' of Gulf sturgeon and not
related to critical habitat. Boat speed is unlikely to have any
significant effect on primary constituent elements for Gulf sturgeon.
Comment 27: One commenter asked how anyone can be of help in our
project of recovery and designation of critical habitat for the Gulf
sturgeon.
Our Response: Maintaining a natural vegetative buffer along streams
and rivers, and participating in watershed conservation groups that
work on protecting and restoring river and bay habitat help conserve
the sturgeon's critical habitat.
Comment 28: One commenter wondered how the critical habitat
designation would raise public awareness and offer additional
educational and informational benefit.
Our Response: Critical habitat provides non-regulatory benefits to
the species by informing the public (via newspaper articles, newspaper
notices, public meetings, public hearings, etc.) of areas that are
important for species recovery and where conservation actions would be
most effective. Designation of critical habitat helps focus
conservation activities for a listed species on the areas that contain
the physical and biological features that are essential for
conservation of that species, and alerts the public and land-managing
agencies to the importance of those areas.
Issue F: Methods
Comment 29: One commenter suggested that we have not included
unoccupied habitat upstream of dams in the Apalachicola River Basin and
the Hillsborough River Basin because access is not available. The
commenter believes that these areas may be essential to the
conservation of the species.
Our Response: The commenter provided no data to support why these
two areas may be essential. Further, we have no historic records of
Gulf sturgeon using the Hillsborough River. Areas upstream of water
control structures were included elsewhere because they contain the
only known suitable spawning habitat for a subpopulation that shows
evidence of reproduction, and therefore, were deemed essential to the
conservation of the species. We believe there is sufficient habitat
downstream of the Jim Woodruff Lock and Dam on the Apalachicola River
to sustain a population of Gulf sturgeon. We believe that what we have
designated for the Gulf sturgeon is based on the best available
scientific information and includes what we consider to be essential to
the conservation of the Gulf sturgeon.
Comment 30: The Services intend to protect spawning habitats from
catastrophic occurrences by including both the main stem spawning sites
and at least one tributary site. One commenter asked why we included
just one tributary site.
Our Response: Each subpopulation for which critical habitat was
designated had historic records of sturgeon using a mainstem river and
at least one additional tributary. We included at least one tributary
for relief from potentially catastrophic events. Including additional
tributaries without historic records was not feasible because we have
no indication that the sturgeon
[[Page 13381]]
would use these areas, and therefore, no evidence that they are
essential to the conservation of the species. When data documented
fairly recent use of additional tributaries, those tributaries were
included. For example, the Pascagoula River subpopulation has sections
of the Bouie River, the Leaf River, and the Chickasawhay River
designated as critical habitat because data support sturgeon use.
Comment 31: One commenter asked if any of the proposed critical
habitat is in the State of Georgia.
Our Response: No. Although the historic range of the Gulf sturgeon
includes the Flint River, and possibly parts of the Chattahoochee
River, we determined that none of the historic habitat in Georgia is
essential to the conservation of the Gulf sturgeon.
Comment 32: One commenter suggested that the critical habitat
designation should be limited to a few specific areas within the range
of the Gulf sturgeon that are most important to their continued
survival (e.g., spawning areas, nursery areas, summer holding areas,
and fall and winter foraging areas).
Our Response: We considered the biological basis for a more site-
specific approach and concluded that it would not secure all biological
features essential for the conservation of the species. The site-
specific approach would neglect the importance of a migration corridor
between spawning, resting, and feeding areas. Also, young-of-year and
possibly juvenile sturgeon (less than 5 kg (11 lbs) (Mason and
Clugston, 1993)) actively forage throughout the riverine system.
Comment 33: One commenter requested that we discuss our rationale
for not designating unoccupied areas when the Services had previously
stated that unoccupied habitat would be necessary for Gulf sturgeon
recovery.
Our Response: As we stated in the proposed rule, since approval of
the Recovery Plan in 1995 and our 1998 ``not prudent'' finding, the
science of conservation biology has matured. The methods section cites
numerous recent publications that contributed to our decision to select
the areas we did and why they constitute habitat sufficient for the
conservation of the species. We have also collected significant new
biological information on this species. For example, we now have a
better understanding on status of the Pearl River system subpopulation;
we are confident that adult Gulf sturgeon are accessing spawning
habitats above Pools Bluff Sill and Bogue Chitto Sill during high
flows; spawning was confirmed in 1999 on the Pascagoula River
subpopulation; usage of the Chickasawhay River, a major tributary to
the Pascagoula River, was recently documented; spawning was confirmed
in 2001 at five locations on the Escambia River; young-of-year have
been confirmed on the Yellow River system and population estimates are
580 Gulf sturgeon 1 m (3.3 ft) or greater in size; additional suitable
spawning sites were documented on the Apalachicola River in 2002; and
between 1993 and 1998, additional spawning sites were confirmed on the
Suwannee River population. We believe that what we have designated for
the Gulf sturgeon is based on the best available scientific information
and includes those areas essential to the conservation of the Gulf
sturgeon.
Comment 34: Three commenters requested that the Services provide
additional detail or quantify the specific habitat requirements for
each life history stage, specifically abundant prey, flow regime, water
temperature, salinity, pH, oxygen content, etc.
Our Response: We have summarized the current knowledge of the
species, including life history requirements in the ``Background''
section of this rule. However, data are not yet available to more
quantitatively express the primary constituent elements of Gulf
sturgeon critical habitat. To make the critical habitat rule adaptive
to increasing knowledge, we have kept the primary constituent elements
general. When consultations on projects occur, biologists will use the
best available science available at the time of consultation to
determine whether the functions of those elements would be adversely
modified by the proposed Federal action. Research is ongoing, and as
those data are collected, we expect to understand better Gulf sturgeon
and its life history requirements.
Comment 35: One commenter stated that habitat is identified
primarily for adults (spawning sites, resting areas, winter feeding),
but not for larvae, juvenile, and subadult life stages. S/he also
suggested a need to cite specific studies rather than using the term
``gathered all available'' data.
Our Response: The commenter is referring to statements in the
``Methods'' section, which is written in general terms to explain how
we decided which riverine, estuarine, and marine areas to include as
critical habitat. We disagree with the commenter that the rule ignores
life stages besides the adult stage. We stated in the proposed rule
that we included riverine habitat from the river mouth up to and
including spawning grounds to provide sufficient habitat for the
riverine life stages of Gulf sturgeon. These life stages require
habitat for summer resting or staging areas, juvenile feeding, entire
young-of-year life cycle (including larval stages), passage throughout
the river (protects all life stages), and passage into and out of
estuarine habitat for adults and subadults. All of the selected areas
are known to be used by Gulf sturgeon for some portion of their life
cycle. Subadult and adult sturgeon use estuarine and marine areas for
feeding and passage between river systems. Designation of critical
habitat units in estuaries and bays adjacent to the riverine units
described above would protect both passage of sturgeon to and from
their feeding and spawning grounds and also the abundance of estuarine
and marine prey for juvenile and adult sturgeon.
Specific references used for making our determination are cited
throughout the ``Background'' and ``Critical Habitat Unit
Descriptions'' sections of the proposed and final rules. A complete
list of all references cited is presented in the ``References Cited''
section of this final rule.
Comment 36: One commenter stated that the areas included in the
proposal are those where studies have been directed toward sturgeon and
that it should not be assumed that other rivers do not have critical
habitat just because sturgeon have not been found in routine fishery
surveys. They also stated that routine fishery surveys can and have
missed the presence of sturgeon.
Our Response: We have based our designation on the best scientific
data available. However, the level of research and status surveys
conducted on many subpopulations is limited. Because of the limited
availability of data specific to each river system and specific to the
Gulf sturgeon's use of the marine and estuarine environment, we
acknowledge that habitat other than that identified in this final rule
may later be found to be essential to the conservation of Gulf
sturgeon. To the extent feasible, we will continue to conduct and
support surveys, research, and conservation actions on the species and
its habitat in areas designated and not designated as critical habitat.
If additional information becomes available on the species' biology,
distribution, and threats, we will evaluate the need to designate
additional critical habitat, delete or reduce critical habitat, or
refine the boundaries of critical habitat. Gulf sturgeon in areas not
included as critical habitat will continue to receive protection under
the section 7 jeopardy standard and the section 9 prohibitions on take.
[[Page 13382]]
Comment 37: One commenter suggested that we clarify our use of
vague terms in the proposed rule (e.g., strongly suspect, believed to
appear, possibly appropriate, relatively sediment free).
Our Response: We appreciate the commenter's sentiments. However, it
is seldom possible to make statements with complete or even relative
certainty when describing the biological and habitat requirements of an
endangered or threatened species. We have expressed ourselves as
definitively as possible using the best available scientific data,
recognizing the need for consultation-specific flexibility over time as
new information is developed about the species and its habitat.
Comment 38: Two commenters requested clarification of the lateral
extent of the critical habitat unit descriptions in the estuarine and
marine areas; clarification of our mean high water line determination,
and clarification of our use of an average high water calculation over
an 18.6 year period rather than using all available tidal data.
Our Response: Regulatory jurisdiction in coastal areas is
administered by the USACE and is described in 33 CFR 329.14(a)(2) as
``the line on the shore reached by the plane of the mean (average) high
water (MHW).'' 33 CFR 329.14(a)(2) further states that when precise
determination of the MHW line is necessary, it is preferable to average
tidal data over a period of 18.6 years, which is a Metonic cycle, i.e.,
the period in which new and full moon recur in the same order and on
the same days as in the preceding cycle.
Issue G: Jurisdiction
Comment 39: Three comments were received on the proposed
jurisdictional responsibilities for the management of the Gulf
sturgeon. Two commenters believe that FWS, instead of NMFS, should have
jurisdiction in the estuarine areas, and one commenter requested
clarification on the technical basis for determining areas of
regulatory jurisdiction in coastal areas.
Our Response: In 1974, a memorandum of understanding (MOU) was
developed to clarify jurisdictional responsibilities for the NMFS and
FWS. Section 1(a) of the 1974 MOU outlines jurisdiction by waterbody
and states that all non-mammalian species, with a few exceptions not
including Gulf sturgeon, that reside the major portion of their
lifetime in estuarine waters shall be under the jurisdiction of the
NMFS. Similarly, the FWS would have jurisdiction over species that
spend the major portion of their lifetimes on land and/or in fresh
water.
While the MOU does not contain specifics on jurisdictional
boundaries for critical habitat, the Services have applied the standard
set for listing species to this critical habitat rule--that is, NMFS
will have jurisdictional responsibility for marine waters and the FWS
for fresh water. In estuarine waters, the Services will consult based
on their respective expertise as described in the proposed rule. Under
this arrangement, the FWS will consult with the EPA since it has
expertise in water quality issues, and the NMFS will consult with the
USACE to maximize efficiency for the action agency when other federally
protected species may be present (e.g., protected sea turtles which
fall under the jurisdiction of NMFS in marine and estuarine waters).
Issue H: Economic Analysis
Comment 40: One commenter supported the two-baseline approach to
the economic analysis used by the Services, and went on to suggest that
the lower baseline, that identifies costs solely attributable to
critical habitat designation, need not be included in the analysis to
be responsive to the decision in New Mexico Cattle Growers Association
v. USFWS, 248 F.3d 1277 (10th Cir. 2001). The commenter paraphrased the
10th Circuit's holding as requiring that costs resulting from the
listing of a species must be considered along with the costs of
critical habitat designation in determining whether the costs of such
designation outweigh the benefits. The commenter went on to support the
inclusion of costs associated with both jeopardy consultations and
adverse modification consultations, and resulting project modification
costs, in the economic analysis, stating that the full spectrum of
impacts associated with the listing and critical habitat designation
presents a more realistic and comprehensive understanding of probable
impacts in the affected region.
Our Response: In New Mexico Cattle Growers Association, the 10th
Circuit ruled that the full costs of critical habitat designation must
be captured in an economic analysis performed in accordance with
section 4(b)(2) of the Act, and thus that costs that might be incurred
co-extensively as a result of both listing and critical habitat
designation must be included in the analysis. For example, projects
that might modify spawning habitat of Gulf sturgeon would give rise to
a consultation on both jeopardy and adverse modification grounds, and
the costs of such consultations must be attributable to critical
habitat designation.
Comment 41: One commenter raised questions about impacts to Federal
hydropower generation in the ACF Basin. Without specific details as to
the minimum and maximum flows necessary for spawning and other flow-
related habitat questions, the commenter contends ``the economic
ramifications of this proposal cannot be properly considered, as
required by law.''
Our Response: We agree that a meaningful assessment of economic
impacts that could result from modifying the operations of the USACEs'
ACF reservoirs to avoid or minimize impacts to Gulf sturgeon habitat in
the Apalachicola River is not possible at this time because too many
variables, such as those listed by the commenter, are unknown. Based on
the limited data that are currently available about the flow rates that
inundate potential spawning habitat, the FWS believes that any
reasonable and prudent adjustments to ACF project operations to protect
sturgeon spawning would be infrequent. As a result, the costs over time
to project purposes such as hydropower would be relatively small. The
basis for this preliminary determination and a brief description of the
informal consultation that is underway between the USACE and the FWS
about ACF project operations effects on sturgeon follows.
Possible flow-related limitations to spawning habitat in the
Apalachicola River were not recognized until the spring of 2002, when
project operations and unusually low basin runoff entering the fourth
year of a regional drought exposed limestone outcroppings and other
hard-bottom portions of the main channel. These hard-bottom areas,
which likely support spawning by the small Apalachicola sub-population,
are inundated during the spring months of most years by the combination
of unregulated basin runoff and the USACEs' operations of the ACF
reservoirs for project purposes other than the conservation of species
and habitats protected under the Act. On May 2, 2002, FWS personnel
surveyed a site near where sturgeon larvae were collected in 1977
(Wooley et al., 1982) and 1987 (Foster et al., 1988). FWS estimated the
maximum discharge that would fully expose the outcropping and the
minimum discharge that would fully inundate it. These estimates were
173 cubic meters per second (cms) (6,118 cubic feet per second (cfs))
and 317 cms (11,200 cfs), respectively. The minimum depth at which Gulf
sturgeon eggs have been collected is 1.4 m (4.6 ft) (Fox et
[[Page 13383]]
al., 2000). The estimated discharge corresponding to 1.4 m (4.6 ft)
inundation of the bottom of the limestone shelf was 424 cms (14,970
cfs), and 612 cms (21,610 cfs) for the top of the shelf. During the
March 15 to May 15 timeframe, when sturgeon spawning most likely
occurs, daily average flow rates have exceeded 424 cms (14,970 cfs) and
612 cms (21,610 cfs) 87 percent and 63 percent of the time,
respectively, in the 1929 to 2002 flow record of the Chattahoochee
gage. March 15 to May 15 average discharge exceeds these flow rates in
97 percent and 77 percent of the years, respectively.
If flow rates between 424 cms (14,970 cfs) and 612 cms (21,610 cfs)
are sufficient for successful sturgeon spawning on the Apalachicola
River, any adjustments to reservoir operations that appear reasonable
and prudent for sturgeon conservation would occur relatively
infrequently, during the occasional years when spring-time hydrologic
conditions and operations for other project purposes do not provide
flows in this range. However, this flow range is based on one set of
measurements at one site and relies upon the minimum depth at which
eggs have been previously collected (4.6 feet); other sites with
different hydrologic characteristics may support spawning and depths
less than 4.6 feet may allow for successful spawning. Annual monitoring
of the Apalachicola sturgeon population by net sampling shows year
classes represented for all years from 1986 to 1998. In none of these
years were all days in the March 15 to May 15 time frame greater than
612 cms (21,610 cfs), but all of these years had at least 11 days
greater than 612 cms (21,610 cfs). In 2002, no days from March 15 to
May 15 had flow greater than 612 cms (21,610 cfs). We will not know for
3 years, when year class 2002 individuals would become large enough to
sample with the nets used in annual monitoring, whether the unusually
low spring flows of 2002 resulted in a lost year class.
The USACE and FWS have initiated a study of sturgeon spawning
habitat in the Apalachicola River that will provide a more complete
relationship between flow and habitat availability than the single site
measured by FWS in May 2002. The USACE will use the results of this
study and other information in a biological assessment of the effects
of its current operations on the sturgeon, its proposed critical
habitat, and other federally-protected species. This assessment will
determine whether current operations may adversely affect federally-
protected species and their habitats and if so, serve to initiate
formal consultation with the FWS. Until this consultation is completed,
it is premature to make estimates of its economic impact, which is
dependent on the results of studies that are still underway and on
USACE decisions relative to reservoir operations that will weigh its
responsibilities under the Act with other statutory responsibilities.
Comment 42: One commenter stated that the economic analysis does
not provide sufficient information to determine if the benefits of
exclusion outweigh the benefits of inclusion of individual critical
habitat units. The comment goes on to ask whether inclusion of any unit
would materially affect the recovery of the Gulf Sturgeon, and requests
that the Services provide a metric by which to determine whether
inclusion of any unit is economically warranted.
Our Response: Section 4(b)(2) of the Act directs that critical
habitat, areas containing biological and physical features essential to
the conservation of the species, shall be designated after taking into
account the economic impacts and other relevant impacts of such
designation. The Secretaries of the Interior and Commerce have the
discretion to exclude areas from such designation if the benefits of
exclusion outweigh the benefits of inclusion, unless failure to
designate such areas will result in the extinction of the species
concerned. This language does not establish a test of whether inclusion
is ``economically warranted.''
Comment 43: One commenter suggested that uncertainty over the
spatial and temporal scale that would be involved in future application
of the destruction or adverse modification standard should be
acknowledged, that costs could depend upon whether that standard is
applied to the designated critical habitat as a whole, within
individual units, or some other scale, and whether the standard would
be triggered by temporary or long term impacts.
Our Response: The Gulf sturgeon's affinity for natal river systems
and the importance of every breeding unit of the species suggests that
individual units or groups of units that are used by stocks or
subpopulations which fulfill essential geographic distribution
requirements are the appropriate scale for the analysis. The outcome of
each destruction or adverse modification analysis is highly fact
specific, dependent not only upon the species and designated critical
habitat at issue, but also upon the particular project and its impact
upon the primary constituent elements of the critical habitat. The
economic analysis for this rule estimated costs of consultations on
projects that the consulting Federal agencies advised were likely to be
implemented in the next 10 years. Thus, the uncertainty in the analysis
would be attributable to unforseen or uncertain projects and their
impacts, as well as a lack of detail about each projected project, and
there is no way to address this uncertainty in any non-speculative
manner.
Comment 44: The Mobile and New Orleans Districts of the USACE
raised questions regarding the economic analysis' incorporation of
dredging windows as potential project modifications.
Our Response: Based on comments received from the USACE and further
analysis by the Services, the economic analysis has been modified by
removing dredging windows as potential project modifications that would
be included in each formal consultation and omitting estimated costs of
such. These changes reflect the extreme improbability that dredging
windows would be recommended or adopted as a project modification to
reduce impacts to critical habitat (as opposed to preventing take),
given the availability of other means of protecting sturgeon or its
habitat with adequate coordination and planning between the USACE and
us.
Comment 45: Several commenters expressed concerns over the
potential effects of critical habitat designation on water flow regimes
in the Apalachicola River, and whether needs to alter flow regimes to
protect sturgeon or its habitat might impose costs by impacting
hydropower or businesses and recreation dependent on existing
reservoirs (e.g., Lake Sidney Lanier).
Our Response: Section 3.4 of the economic analysis has been revised
to more fully discuss the factors associated with estimating economic
impacts related to flow regime modifications that may emerge from
consultation with the USACE as reasonable and prudent for the sturgeon
and its habitat in the Apalachicola River. Conservation of listed
species is one of many responsibilities the USACE must consider in
operating the Apalachicola Basin reservoir projects, which are
variously authorized for the purposes of flood control, hydropower,
navigation, recreation, water quality, water supply, and fish and
wildlife. Changing reservoir operations for sturgeon conservation could
affect the degree to which the USACE is able to fulfill other project
purposes; however, under normal and wet rainfall conditions, existing
operations appear adequate to protect the sturgeon and its habitat. If
[[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) north of
Quinn Bridge. In the proposed rule, we were given information that
stated that Quinn Bridge was located on Mississippi (MS) Highway 570.
Since the sighting was 1.6 km (1 mi) upstream of Quinn Bridge (MS
Highway 570), in the proposed rule we ended the designation upstream of
Quinn Bridge at Lazy Creek to encompass the fish location and to
boundary at an area easily identifiable. We now know that Quinn Bridge
is located along MS Highway 44 (Estes et al. 1991), so in order to
include the fish location and to boundary the designation at an area
easily identifiable, we have included up to MS Highway 570 in the unit,
which is the first crossing north of MS Highway 44. See ``Map 1.1'' to
clarify locations of MS Highly 570 and MS Highway 44.
Unit 2
On the Bouie River, Forrest County, Mississippi, we received more
specific information during the comment period on the location of a
Gulf sturgeon captured above the gravel pits above Glendale Road in
1977. This fish was located approximately 0.80 rkm (0.50 rmi) above
Glendale Road, not further upstream as originally believed. For ease of
identification, we have included up to the southern-most road crossing
of Interstate 59 in the unit. We have, therefore, reduced this river
reach by 14.5 rkm (9.0 rmi).
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.
The Services are also excluding major shipping channels in this
unit, as identified on standard navigation charts and marked by buoys,
under Section 4(b)(2).
Unit 8
The Services are excluding major shipping channels, as identified
on standard navigation charts and marked by buoys, under Section
4(b)(2).
Unit 9
The Services are excluding major shipping channels, as identified
on standard navigation charts and marked by buoys, under Section
4(b)(2).
Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as (I)
the 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) that 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. ``Conservation'' is defined in section 3(3) of the Act as the
use of all methods and procedures that are necessary to bring any
endangered or threatened species to the point at which listing under
the Act is no longer necessary.
In order for habitat to be included in a critical habitat
designation, the habitat features must be ``essential to the
conservation of the species.''
When we designate critical habitat, we may not have the information
necessary to identify all areas which are essential for the
conservation of the species. Nevertheless, we are required to designate
those areas we know to be critical habitat, using the best information
available to us.
Within the geographic area of the species, we have designated only
currently known essential areas. We will not speculate about what areas
might be found to be essential if better information becomes available,
or what areas may become essential over time. If the information
available at the time of designation does not show that an area
provides essential life cycle needs of the species, then the area will
not be included in the critical habitat designation. Our regulations
state that ``the Secretary shall designate as critical habitat areas
outside the geographic area presently occupied by the species only when
a designation limited to its present range would be inadequate to
ensure the conservation of the species'' (50 CFR 424.12(e)).
Accordingly, when the best available scientific data do not demonstrate
that the conservation needs of the species require designation of
critical habitat outside of occupied areas, we will not designate
critical habitat in areas outside the geographic area occupied by the
species.
Section 4(b)(2) of the Act requires that we take into consideration
the economic impact, and any other relevant impact, of specifying any
particular area as critical habitat. We may exclude areas from critical
habitat designation when the benefits of exclusion outweigh the
benefits of including the areas within critical habitat, provided the
exclusion will not result in extinction of the species.
[[Page 13387]]
Methods and Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act and its implementing
regulations (50 CFR 424.12), this final rule is based on the best
scientific information available concerning the species' present and
historical range, habitat, biology, and threats. In preparing this
rule, we reviewed and summarized the current information available on
the Gulf sturgeon, including the physical and biological features that
are essential for the conservation of the species (see ``Primary
Constituent Elements'' section), and identified the areas containing
these features. The information used includes known locations; our own
site-specific species and habitat information; State-wide Geographic
Information System (GIS) coverages (e.g., land ownership, bathymetry
(the measurement of depths of water in oceans, seas, and lakes), and
estuarine substrates); the final listing rule for the Gulf sturgeon;
recent biological surveys and reports; peer-reviewed literature; our
recovery plan; discussions and recommendations from Gulf sturgeon
experts; and information received during Gulf sturgeon recovery
meetings. The Gulf Sturgeon Recovery/Management Plan (FWS et al., 1995)
contains valuable biological information, and it is cited throughout
this document. However, the state of our knowledge regarding Gulf
sturgeon biology and distribution has changed markedly since
publication of the recovery plan for this species. The recovery
criteria put forth in this recovery plan were deemed preliminary and
may now warrant revision in light of new information. As a result of
recent research and survey efforts directed towards this species,
substantial portions of the biological information presented in the
recovery plan are now dated or obsolete. Thus, although the recovery
plan is a valuable source of information, it is not the final authority
on the natural history and distribution of this species.
In the past, we had assumed, based on the information available at
the time, that unoccupied habitat would be necessary for the recovery
of the Gulf sturgeon. Since approval of the recovery plan in 1995 and
our 1998 not prudent finding, we have collected new biological
information on this species. We have analyzed what is necessary for the
conservation of the Gulf sturgeon, as described above, and based on the
best scientific information available at this time, we have determined
that unoccupied habitat is not essential to the conservation of the
Gulf sturgeon.
Determining the Scale of the Final Designation
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 included 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 to
support conservation of the species.
The historic range of the Gulf sturgeon included nine major rivers
and several smaller rivers from the Mississippi River, Louisiana, to
the Suwannee River, Florida, and in marine waters of the Central and
Eastern Gulf of Mexico, south to Tampa Bay (Wooley and Crateau, 1985;
and FWS et al., 1995). Seven of these major river systems continue to
support reproducing subpopulations. These include (from west to east)--
the Pearl, Pascagoula, Escambia, Yellow/Blackwater, Choctawhatchee,
Apalachicola, and Suwannee Rivers.
The Gulf Sturgeon Recovery/Management Plan (FWS et al., 1995) noted
the importance of identifying and maintaining genetic integrity and
diversity during restoration efforts on Gulf sturgeon. A severe loss of
genetic variability may lead to a decline in the fitness of a species
(Soul[eacute], 1987). Evidence suggests that peripheral subpopulations
are often genetically and morphologically divergent from central
subpopulations (Lesica and Allendorf, 1995). Distinct traits found in
peripheral subpopulations may be crucial to the species, allowing
adaptation in the face of environmental change (Lesica and Allendorf,
1995; and Allendorf et al., 1997). In light of these considerations, we
determined that the inclusion of stocks or subpopulations from both the
eastern and the western margins of the current range were necessary to
protect the potential evolutionary importance of those subpopulations
(Scudder, 1989; Lesica and Allendorf, 1995; and Young and Harig, 2001).
While telemetry data indicate that Gulf sturgeon from one
genetically distinct drainage occasionally enter another river and also
mix during the winter months in estuarine and marine habitats, a
genetic analysis of tissue samples concluded that Gulf sturgeon exhibit
strong natal river fidelity, with stocks exchanging less than one
mature female per generation on the average (Waldman and Wirgin, 1998).
These low gene flow estimates strongly suggest that natural
recolonization of extirpated subpopulations of Gulf sturgeon would
proceed slowly (Waldman and Wirgin, 1998). Semi-isolated subpopulations
are more vulnerable to the effects of demographic and environmental
population fluctuations (Forney and Gilpin, 1989; and Wahlberg et al.,
1996).
Gene flow estimates are usually higher between adjacent stocks,
suggesting that migrants from semi-isolated subpopulations are
exchanged primarily with neighboring subpopulations (Waldman and
Wirgin, 1998). The loss of any intermediate subpopulations by a single
environmental catastrophe could seriously limit a species' recovery
(Kautz and Cox, 2001; and Young and Harig, 2001). In light of this, we
determined that it is necessary to designate as critical habitat rivers
used by subpopulations evenly spaced between the western- and eastern-
most limits of the current range. To ensure conservation of the
species, subpopulations must be geographically located so that they can
serve as sources of sturgeon emigration, albeit at a slow rate (Waldman
and Wirgin, 1998), to adjacent rivers and so that they can provide a
rescue effect if an adjacent subpopulation is extirpated (Brown and
Kodric-Brown, 1977; Hanski and Gyllenberg, 1993; and Young and Harig,
2001).
Designating critical habitat for only a few subpopulation units, or
for units not spaced in a manner that allows genetic exchange with
other subpopulations, could increase the vulnerability of the species
due to isolation of subpopulations. Protection of a single, isolated,
minimally viable population risks the extirpation or extinction of a
species as a result of harsh environmental conditions, catastrophic
events, or genetic deterioration over several generations (Kautz and
Cox, 2001). To reduce the risk of extinction through these processes,
it is important to establish multiple protected subpopulations across
the landscape (Soul[eacute] and Simberloff, 1986; and Wiens, 1996).
Because of these considerations, we reached the conclusion that
this designation should include critical habitat units within the major
river
[[Page 13388]]
systems that support the seven currently reproducing subpopulations
(FWS et al., 1995) and associated marine habitats. These river systems
include (from west to east)--the Pearl, Pascagoula, Escambia, Yellow/
Blackwater, Choctawhatchee, Apalachicola, and Suwannee Rivers. We
believe that with proper protection and management, these units
collectively represent habitat necessary to provide for the
conservation of the species. The number, distribution, and range of
Gulf sturgeon subpopulations included in these units is necessary to
protect and support the extent and diversity of the species' genetic
integrity and can provide a rescue effect, if needed. The Services
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.
Assessing Specific Habitat Areas Essential to the Conservation of Gulf
Sturgeon
Once we determined that the proper scale of the critical habitat
designation should cover the area occupied by the seven reproducing
subpopulations, we evaluated which habitats used by those seven
subpopulations are essential to their conservation. To conduct this
evaluation, we assessed the critical life history components of Gulf
sturgeon as they relate to habitat. Gulf sturgeon use the rivers for
spawning, larval and juvenile feeding, adult resting, and staging, and
to move between the areas that support these components. Gulf sturgeon
use the lower riverine, estuarine, and marine environment during winter
months primarily for feeding, and more rarely, for inter-river
migrations.
We then investigated what habitat types support these life history
components and where these habitat areas are located. We evaluated
empirical data, published and unpublished literature, and solicited the
views of experts. These habitat components are described in the
``Primary Constituent Elements'' section of this final rule. We
identified known or presumed spawning sites in each of the seven river
systems. Some spawning sites have been conclusively identified; others
are presumed due to the presence of suitable habitat. We identified
known or presumed sites used for resting or staging. We identified
areas where subadult and adult Gulf sturgeon occur during winter and
are presumed to be feeding. These areas are primarily in the marine or
estuarine environment; young-of-the-year and juveniles feed mostly in
the riverine environment. As a component of the above identifications,
we gathered all available data on locations and habitat use of marked
(tagged) fish.
To determine which areas should be designated as critical habitat,
we then evaluated where the necessary constituent elements of Gulf
sturgeon habitat intersected with areas known to be used by both marked
and unmarked fish. Detailed location data, where available, is included
with each unit description in the ``Critical Habitat Unit
Descriptions'' section of this final rule. Because most of the sturgeon
species' farthest upstream movement is for spawning (Bain, 1997; and J.
Hightower, USGS-Biological Resources Division, pers. comm. 2002), we
have determined that the designation should include areas as far
upstream as the furthest known or presumed spawning site. Therefore, in
rivers where spawning sites have been confirmed, critical habitat
extends upstream to a geographically identifiable point, such as a
river confluence upstream of those sites. In areas where spawning sites
are presumed but not confirmed, we have included river reaches that
contain the appropriate substrate necessary for spawning, if those
areas occur within close proximity of Gulf sturgeon historic and/or
current sightings or captures, and if they are still accessible to
sturgeon (e.g., not entirely blocked by dams). The riverine critical
habitat units include areas that continue to offer at least periodic
passage of Gulf sturgeon to known and presumed spawning sites.
Successful reproduction and recent recruitment have been documented in
each riverine unit by eggs, larvae, and/or juveniles, or by a mixed age
structure. We are proposing to protect subpopulation extirpation from a
catastrophic occurrence by including up to both the main stem spawning
sites and at least one tributary site.
We have included riverine habitat from the river mouth upstream to
and including spawning grounds in order to provide sufficient habitat
necessary for the other riverine life stages of Gulf sturgeon while
they reside in the riverine habitats. Habitat necessary for these life
stages includes habitat for summer resting or staging areas, juvenile
feeding, entire young-of-the-year life cycle, passage throughout the
river, and passage into and out of estuarine habitat. 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 encompassing estuaries and bays adjacent to the riverine
units discussed above will protect unobstructed passage of sturgeon
from feeding areas to spawning grounds. In evaluating the estuarine and
marine areas, we first reviewed where Gulf sturgeon from the seven
adjacent riverine units have been documented by telemetry relocations
and tag returns from incidental captures. We also considered areas for
which we have Gulf sturgeon sightings and targeted and incidental
capture records. When available, we reviewed habitat data (e.g.,
bathymetry, substrate type, and community structure) associated with
these estuarine and marine systems and compared these data with studies
pertaining to the habitat requirements and preferences of Gulf
sturgeon. We also evaluated data for evidence of critical migratory
pathways between the river systems and the adjacent bays and Gulf of
Mexico that allow Gulf sturgeon to travel to important feeding areas,
as well as allow for the occasional travel to non-natal rivers for
possible spawning and genetic interchange. Where documented inter-
riverine movements have occurred, but no telemetry data exist to
identify the migratory path (e.g., between the Pascagoula River and
Yellow River, the Pascagoula and Choctawhatchee Rivers, and between
Suwannee River and Apalachicola River), we have not designated a
migration route. We then assessed the Gulf sturgeon's overall use of
estuarine and marine waters and delineated specific critical habitat
boundaries.
Migration and feeding may take place within the GIWW in some of the
units. Portions of the GIWW that consist primarily of excavated land
cuts and canals have been excluded from this designation because they
were not available historically, and, therefore, are not considered to
be evolutionarily significant.
This final designation includes a significant portion, but not all,
of the species' historic range. The fourteen critical habitat units
include riverine main stems and in some cases tributaries,
distributaries (a river branch flowing away from the main stem in the
floodplain) and adjacent estuarine and marine areas that contain one or
more of the primary constituent elements essential for the conservation
of the Gulf sturgeon (see ``Primary Constituent Elements'' section).
The omission of some historically occupied river drainages and
estuarine and marine areas from this critical habitat designation does
not diminish their individual or cumulative importance to the species.
Rather, it is our
[[Page 13389]]
determination that the seven riverine units with known spawning and
seven associated estuarine and marine units included in this rule
include the habitats essential for the conservation of the Gulf
sturgeon. With unobstructed passage in the estuarine and marine
habitat, the subpopulations within the designated critical habitat
units may eventually populate presently unoccupied coastal river
systems or augment adjacent surviving small subpopulations.
Although the Mobile River Basin is the largest Gulf of Mexico
drainage east of the Mississippi River, it has been extensively
impounded and modified for navigation. Further, there have been
relatively limited reports of captures and no evidence of reproduction
of Gulf sturgeon from that system for many years. Gulf sturgeon have
been reported from other river systems. Some of these other systems
historically supported a commercial fishery (e.g., Mobile River,
Ochlockonee River) and some may support small reproducing
subpopulations (e.g., Techefuncte River, Ochlockonee River, Mobile
River); however, there is no recent documented spawning and we have no
evidence at this time that these systems are essential to the
conservation of the species. Therefore, we have not included them as
critical habitat.
The data available to us are insufficient to support a
determination that Lake Maurepas, Breton and Chandeleur Sounds, the
Mississippi River Delta, St. Louis, Biloxi, Mobile, Perdido, St.
Andrews, St. Joseph, Ochlockonee, or Apalachee Bays are essential to
the conservation of the species. Records within the majority of these
bays are relatively scarce. Although some Gulf sturgeon from the seven
subpopulations may occasionally use these bays for winter foraging,
there are insufficient data to support these bays' regular winter use
or importance and no documented spawning. Therefore, we have not
included these bays in our critical habitat designation.
The amount of research and status surveys conducted on many Gulf
sturgeon 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 environment, we are aware 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, with the assistance of other Federal, State, and
private researchers, to conduct 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 surviving in, or moving to rivers that are not being
included as critical habitat will continue to receive protection under
the section 7 of the Act including the jeopardy standard and the
section 9 of the Act prohibitions on take (see ``Critical Habitat''
section).
Primary Constituent Elements
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and regulations at 50 CFR 424.12, in determining which areas to
designate as critical habitat, we are required to base critical habitat
determinations on the best scientific data available and to focus on
those physical and biological features (primary constituent elements)
that are essential to the conservation of the species and that may
require special management considerations or protection. Such
requirements include, but are not limited to, space for individual and
population growth and for normal behavior; food, water, air, light,
minerals, or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, and rearing of offspring;
and habitats that are protected from disturbance or are representative
of the historical geographical and ecological distribution of a
species.
Based on the best available information, primary constituent
elements essential for the conservation of the Gulf sturgeon include
the following:
(1) Abundant food items, such as detritus, aquatic insects, worms,
and/or molluscs, within riverine habitats for larval and juvenile life
stages; and abundant prey items, such as amphipods, lancelets,
polychaetes, gastropods, ghost shrimp, isopods, molluscs and/or
crustaceans, within estuarine and marine habitats and substrates for
subadult and adult life stages.
(2) Riverine spawning sites with substrates suitable for egg
deposition and development, such as limestone outcrops and cut
limestone banks, bedrock, large gravel or cobble beds, marl, soapstone,
or hard clay;
(3) Riverine aggregation areas, also referred to as resting,
holding, and staging areas, used by adult, subadult, and/or juveniles,
generally, but not always, located in holes below normal riverbed
depths, believed necessary for minimizing energy expenditures during
fresh water residency and possibly for osmoregulatory functions;
(4) A flow regime (i.e., the magnitude, frequency, duration,
seasonality, and rate-of-change of fresh water discharge over time)
necessary for normal behavior, growth, and survival of all life stages
in the riverine environment, including migration, breeding site
selection, courtship, egg fertilization, resting, and staging, and for
maintaining spawning sites in suitable condition for egg attachment,
egg sheltering, resting, and larval staging;
(5) Water quality, including temperature, salinity, pH, hardness,
turbidity, oxygen content, and other chemical characteristics,
necessary for normal behavior, growth, and viability of all life
stages;
(6) Sediment quality, including texture and other chemical
characteristics, necessary for normal behavior, growth, and viability
of all life stages; and
(7) Safe and unobstructed migratory pathways necessary for passage
within and between riverine, estuarine, and marine habitats (e.g., an
unobstructed river or a dammed river that still allows for passage).
Need for Special Management Consideration or Protection
An area designated as critical habitat contains one or more of the
primary constituent elements that are essential to the conservation of
the species (see ``Primary Constituent Elements'' section), and that
may require special management considerations or protection. Various
activities in or adjacent to each of the critical habitat units
described in this rule may affect one or more of the primary
constituent elements that are found in the unit. These activities
include, but are not limited to, those listed in the ``Effects of
Critical Habitat'' section as ``Federal Actions That May Affect
Critical Habitat and Require Consultation.'' For example, riverine
spawning sites for Gulf sturgeon must be relatively sediment-free for
successful egg development and may need best management practices
implemented in the watershed upstream to prevent an excessive
accumulation of sediment in these areas. None of the critical habitat
units are presently under special management or protection provided by
a legally operative plan or agreement for the conservation of the Gulf
sturgeon. Therefore, we have determined that all units may require
special management or protection.
[[Page 13390]]
Critical Habitat Designation
The areas designated as critical habitat for the Gulf sturgeon
provide one or more of the primary constituent elements described
above. Tables 1 and 2 summarize the location and extent of the
designated critical habitat. All of the designated areas require
special management considerations to ensure their contribution to the
conservation of the Gulf sturgeon. The boundaries of critical habitat
units are described generally below.
Table 1.--Approximate Linear Distance of the Riverine Critical Habitat
Units for the Gulf Sturgeon
[Main Stems Are Listed First and Tributaries Are Indented]
------------------------------------------------------------------------
Critical habitat unit-- river River River
systems State kilometers miles
------------------------------------------------------------------------
1. Pearl (East, West, and all Louisiana/ 632 393
distributaries). Mississippi.
Bogue Chitto.............. ................. 163 101
2. Pascagoula................. ................. 203 126
Leaf...................... ................. 164 102
Bouie..................... Mississippi...... 10 6
Chickasawhay.............. ................. 232 144
Big Black Creek........... ................. 8 5
3. Escambia................... Florida/......... 117 73
Conecuh................... Alabama.......... 127 79
Sepulga................... ................. 11 7
4. Yellow..................... Florida/......... 154 96
Blackwater................ Alabama.......... 18 11
Shoal..................... ................. 13 8
5. Choctawhatchee............. Florida/......... 249 155
Pea....................... Alabama.......... 92 57
6. Apalachicola............... Florida.......... 254 158
Brothers.................. ................. 24 15
7. Suwannee................... Florida.......... 293 182
Withlacoochee............. ................. 19 12
--------------
Total................. ................. 2,783 1,730
------------------------------------------------------------------------
Table 2.--Approximate Area of the Estuarine and Marine Critical Habitat
Units for the Gulf Sturgeon
------------------------------------------------------------------------
Critical habitat unit-- Kilometers
estuarine and marine systems State 2 Miles 2
------------------------------------------------------------------------
8. Lake Borgne................ Louisiana/....... 718 277
Little Lake............... Mississippi/..... 8 3
Lake Pontchartrain........ Alabama.......... 763 295
Lake St. Catherine........ ................. 26 10
The Rigolets.............. ................. 13 5
Mississippi Sound......... ................. 1,879 725
MS near shore Gulf........ ................. 160 62
9. Pensacola Bay.............. Florida.......... 381 147
10. Santa Rosa Sound.......... Florida.......... 102 39
11. Near shore Gulf of Mexico. Florida.......... 442 171
12. Choctawhatchee Bay........ Florida.......... 321 124
13. Apalachicola Bay.......... Florida.......... 683 264
14. Suwannee Sound............ Florida.......... 546 211
--------------
Total................. ................. 6,042 2,333
------------------------------------------------------------------------
Critical Habitat Unit Descriptions
The river reaches within units 1 to 7 designated as critical
habitat lie within the ordinary high water line. As defined in 33 CFR
329.11, the ordinary high water line on non-tidal rivers is the line on
the shore established by the fluctuations of water and indicated by
physical characteristics such as a clear, natural line impressed on the
bank; shelving; changes in the character of soil; destruction of
terrestrial vegetation; the presence of litter and debris; or other
appropriate means that consider the characteristics of the surrounding
areas.
The downstream limit of the riverine units is the mouth of each
river. The mouth is defined as rkm 0 (rmi 0). Although the interface of
fresh and saltwater, referred to as the saltwater wedge, occurs within
the lower-most reach of a river, for ease in delineating critical
habitat units, we are defining the boundary between the riverine and
estuarine units as rkm 0 (rmi 0).
Regulatory jurisdiction in coastal areas extends to the line on the
shore reached by the plane of the mean (average) high water (MHW) (33
CFR 329.12(a)(2)). All bays and estuaries within units 8 to 14,
therefore, lie below the MHW lines. Where precise determination of the
actual location becomes necessary, it must be established by survey
with reference to the available tidal datum, preferably averaged over a
period of 18.6 years. Less precise methods, such as observation of the
``apparent shoreline,'' which is determined by reference to physical
markings, lines of vegetation, may be used only where an estimate is
needed of the line reached by the mean high water.
[[Page 13391]]
The term 72 COLREGS is defined as demarcation lines which delineate
those waters upon which mariners shall comply with the International
Regulations for Preventing Collisions at Sea, 1972 and those waters
upon which mariners shall comply with the Inland Navigation Rules (33
CFR 80.01). The waters inside of these lines are Inland Rules waters
and the waters outside the lines are COLREGS waters. These lines are
defined in 33 CFR 80, and have been used for identification purposes to
delineate boundary lines of the estuarine and marine habitat Units 8,
9, 11, and 12.
Unit 1. Pearl River System in St. Tammany and Washington Parishes in
Louisiana and Walthall, Hancock, Pearl River, Marion, Lawrence,
Simpson, Copiah, Hinds, Rankin, and Pike Counties in Mississippi
Unit 1 includes the Pearl River main stem from the spillway of the
Ross Barnett Dam, Hinds and Rankin Counties, Mississippi, downstream to
where the main stem river drainage discharges at its mouth joining Lake
Borgne, Little Lake, or The Rigolets in Hancock County, Mississippi,
and St. Tammany Parish, Louisiana. It includes the main stems of the
East Pearl River, West Pearl River, West Middle River, Holmes Bayou,
Wilson Slough, downstream to where these main stem river drainages
discharge at the mouths of Lake Borgne, Little Lake, or The Rigolets.
Unit 1 also includes the Bogue Chitto River main stem, a tributary of
the Pearl River, from Mississippi State Highway 570, Pike County,
Mississippi, downstream to its confluence with the West Pearl River,
St. Tammany Parish, Louisiana. The lateral extent of Unit 1 is the
ordinary high water line on each bank of the associated rivers and
shorelines.
The majority of recent Gulf sturgeon sightings in the Pearl River
drainage have occurred downstream of the Pools Bluff Sill on the Pearl
River, near Bogalusa, Washington Parish, Louisiana, and downstream of
the Bogue Chitto Sill on the Bogue Chitto River in St. Tammany Parish,
Louisiana. Between 1992 and 1996, 257 Gulf sturgeon were captured from
the Pearl River system (West Middle River, Bogue Chitto River, East
Pearl River, and West Pearl River). The subpopulation was estimated at
292 fish, of which only 2 to 3 percent were adults (Morrow et al.,
1998b). The annual mortality rate was calculated to be 25 percent.
Preliminary results from captures between 1992 and 2001 suggest a
stable subpopulation of 430 fish, with approximately 300 adults
(Rogillio et al., 2002). These Pearl River distributaries are used for
migration to spawning grounds, summer resting holes, and juvenile
feeding. Gulf sturgeon have been captured in all of these
distributaries and all are designated as critical habitat.
The presence of juvenile Gulf sturgeon (1 to 4 years old) in the
Pearl River system indicates successful spawning at some location in
the Pearl River system. It is believed that the only suitable habitat
for spawning for the Pearl River subpopulation of Gulf sturgeon occurs
above the sills on the Pearl River and the Bogue Chitto River with
access to these areas only during high flows (Morrow et al., 1996; and
Morrow et al., 1998a). Bedrock and limestone outcropping that are
typical of Gulf sturgeon spawning areas in other systems do not occur
here. However, within the Pearl drainage, spawning areas likely include
soapstone, hard clay, gravel and rubble areas, and undercut banks
adjacent to these substrates (W. Slack, pers. comm. 2001). Although the
Pools Bluff Sill blocks upstream movement on the Pearl River during
periods of low water, potential spawning sites have been identified
upstream of the sill at various locations between Monticello, Lawrence
County, Mississippi, and the Ross Barnett Dam spillway, Hinds and
Rankin Counties, Mississippi (F. Parauka, pers. comm. 2002). Gulf
sturgeon have also been recently reported as far upstream as Jackson,
Hinds County, Mississippi (Morrow et al., 1996; Lorio, 2000; and W.
Slack, pers. comm. 2002). The Ross Barnett Dam upstream of Jackson
prevents sturgeon movement further upstream at all flow conditions.
Identified suitable spawning habitat, presence of juvenile fish, and
documented adult captures support our inclusion of the Pearl River up
to the spillway of the Ross Barnett Dam.
The Bogue Chitto Sill, located on the Bogue Chitto River near its
confluence with the Pearl River, also hinders movement of Gulf sturgeon
upstream of the sill except during high water flows. Suitable spawning
habitat occurs within the Bogue Chitto upriver of the sill (W. Slack,
pers. comm. 2001; W. Granger, FWS, pers. comm. 2002; and F. Parauka,
pers. comm. 2002) and juvenile, adult and subadult Gulf sturgeon have
been documented on the Bogue Chitto River as far upstream as one mile
north of Quinn Bridge (Mississippi State Highway 44), McComb, Pike
County, Mississippi (W. Slack pers. comm. 2001; D. Oge, Louisiana
Department of Environmental Quality, pers. comm. 2002; and F. Parauka,
pers. comm. 2002). We, therefore, have designated as critical habitat
the main stem of the Bogue Chitto River upstream of Quinn Bridge
(Mississippi State Highway 44) to Mississippi State Highway 570 for
ease of identification.
Unit 2. Pascagoula River System in Forrest, Perry, Greene, George,
Jackson, Clarke, Jones, and Wayne Counties, Mississippi
Unit 2 includes all of the Pascagoula River main stem and its
distributaries, portions of the Bouie, Leaf, and Chickasawhay
tributaries, and all of the Big Black Creek tributary. It includes the
Bouie River main stem beginning on the southern-most road crossing of
Interstate 59, Forrest County, Mississippi, downstream to its
confluence with the Leaf River, Forrest County, Mississippi. The Leaf
River main stem beginning from Mississippi State Highway 588, Jones
County, Mississippi, downstream to its confluence with the Chickasawhay
River, George County, Mississippi is included. The main stem of the
Chickasawhay River from the mouth of Oaky Creek, Clarke County,
Mississippi, downstream to its confluence with the Leaf River, George
County, Mississippi is included. Unit 2 also includes Big Black Creek
main stem from its confluence with Black and Red Creeks, Jackson
County, Mississippi, to its confluence with the Pascagoula River,
Jackson County, Mississippi. All of the main stem of the Pascagoula
River from its confluence with the Leaf and Chickasawhay Rivers, George
County, Mississippi, to the discharge of the East and West Pascagoula
Rivers into Pascagoula Bay, Jackson County, Mississippi, is included.
The lateral extent of Unit 2 is the ordinary high water line on each
bank of the associated rivers and shorelines.
Subpopulation estimates, calculated from sturgeon captures in 1999
and 2000 in the summer holding areas on the Pascagoula River, range
between 162 and 216 individuals (Heise et al., 1999a; and Ross et al.,
2001b). Due to the sampling technique, these estimates are based
primarily on large fish and do not account for juvenile or subadult
fish (S. Ross, USM, pers. comm. 2001).
Gulf sturgeon spawning on the Bouie River was confirmed via egg
collection in 1999 (Slack et al., 1999; and Heise et al., 1999a). This
is the only confirmed spawning area in the Pascagoula River drainage.
Downstream, the Bouie River is sometimes used as a summer holding area
(Ross et al., 2001b). Gulf sturgeon have been documented using the area
above the known spawning habitat approximately 0.80 rkm (0.50 rmi)
north of Glendale Road (Reynolds, 1993; and W. Slack, pers. comm.
2002). Additional
[[Page 13392]]
suitable spawning habitat has been identified in this upstream reach
(F. Parauka, pers. comm. 2002), and since Gulf sturgeon have rarely
been documented upstream of spawning grounds, we have included the 4.8
rkm (3 rmi) of river reach upstream of the confirmed spawning grounds.
For ease of identification, we have stopped on the southern-most road
crossing of Interstate 59, where it crosses the Bouie River. Confirmed
use for spawning and use as a summer holding area support the inclusion
of the Bouie River as critical habitat.
Documented sightings of Gulf sturgeon and identified suitable
spawning habitat upstream to Mississippi State Highway 588 (Reynolds,
1993; W. Slack, pers. comm. 2002; and F. Parauka, pers. comm. 2002),
confirmed use as a migration corridor, and confirmed use by juvenile
Gulf sturgeon (W. Slack, pers. comm. 2002) support the inclusion of the
Leaf River as critical habitat.
Documented sightings of Gulf sturgeon using the Chickasawhay River
(Miranda and Jackson, 1987; Reynolds, 1993; and Ross et al., 2001b)
upstream to Quitman (Ross et al., 2001b), and the presence of
apparently suitable spawning habitat at Quitman (F. Parauka, pers.
comm. 2002), support the inclusion of this river reach as critical
habitat for spawning, migration, and juvenile feeding. We have included
the suitable spawning habitat located within 0.8 rkm (0.5 rmi) upstream
of Mississippi State Road 512 and have extended the designation 9 rkm
(5.5 rmi) upstream to the confluence with Oaky Creek for ease of
identification.
Gulf sturgeon use the West and East distributaries of the
Pascagoula River during spring and fall migrations (Ross et al.,
2001b). Summer resting areas have been consistently documented on Big
Black Creek and on the Pascagoula River (Ross et al., 2001a and b).
Confirmed use for migration and/or summer resting areas and probable
feeding use by juveniles support our inclusion of these river reaches.
Unit 3. Escambia River System in Santa Rosa and Escambia Counties,
Florida and Escambia, Conecuh, and Covington Counties, Alabama
Unit 3 includes the Conecuh River main stem beginning just
downstream of the spillway of Point A Dam, Covington County, Alabama,
downstream to the Florida State line, where its name changes to the
Escambia River, Escambia County, Alabama, and Escambia and Santa Rosa
Counties, Florida. It includes the entire main stem of the Escambia
River downstream to its discharge into Escambia Bay and Macky Bay,
Escambia and Santa Rosa Counties, Florida. All of the distributaries of
the Escambia River including White River, Little White River, Simpson
River, and Dead River, Santa Rosa County, Florida are included. The
Sepulga River main stem from Alabama County Road 42, Conecuh and
Escambia Counties, Alabama, downstream to its confluence with the
Conecuh River, Escambia County, Alabama, is also included. The lateral
extent of Unit 3 is the ordinary high water line on each bank of the
associated lakes, rivers and shorelines.
Sufficient data are not yet available to estimate historic or
current subpopulation size of the Escambia River drainage
subpopulation. Collection and tagging of Gulf sturgeon, monitoring, and
eventual subpopulation estimates are in the initial phases on the
Escambia River in Florida and the Conecuh River in Alabama.
Suitable spawning habitat (Parauka and Giorgianni, 2002) and a
reported larval sighting (N. Craft, Florida Department of Environmental
Protection (FDEP), pers. comm. 2001), just below the Point A Dam (221
rkm (137 rmi)) on the Conecuh River support inclusion of critical
habitat upstream to the Point A Dam. The Point A Dam prevents sturgeon
movement further upstream at all flow conditions. In addition, spawning
has been confirmed between rkm 161 and 170 (rmi 100 and 105.6) (Craft
et al., 2001) on the Conecuh River. The use of the river main stem for
spawning, adult resting areas, juvenile feeding and resting, and the
use for migration to these sites supports our inclusion of the
Escambia/Conecuh River main stem as critical habitat for the Escambia
River subpopulation of Gulf sturgeon.
Historic sightings reported from the 1910s and 1920s, and as
recently as 1991, have been documented in Escambia County, Alabama, on
the Sepulga River (Reynolds, 1993). Estes et al. (1991) describe the
Sepulga as having smooth rock walls, and long pools with stretches of
rocky shoals and sandbars. We included the Sepulga River reach upstream
to Alabama County Road 42, Escambia County, Alabama, because it has
suitable spawning habitat and documented sightings.
We believe it is most likely that Gulf sturgeon use the Escambia
River main stem and all the distributaries for exiting and entering the
Escambia/Conecuh River. Gulf sturgeon have been documented to use
distributaries near the river mouth within other systems (e.g.,
Suwannee, Pearl, and Pascagoula River systems) for migration into and
out of riverine habitat. We, therefore, have included all
distributaries on the Escambia River system (i.e., White River, Little
White River, Simpson River, and Dead River) in Unit 3.
Unit 4. Yellow River System in Santa Rosa and Okaloosa Counties,
Florida and Covington County, Alabama
Unit 4 includes the Yellow River main stem from Alabama State
Highway 55, Covington County, Alabama, downstream to its discharge at
Blackwater Bay, Santa Rosa County, Florida. All Yellow River
distributaries (including Weaver River and Skim Lake) discharging into
Blackwater Bay are included. The Shoal River main stem, a Yellow River
tributary, from Florida Highway 85, Okaloosa County, Florida, to its
confluence with the Yellow River, is included. The Blackwater River
from its confluence with Big Coldwater Creek, Santa Rosa County,
Florida, downstream to its discharge into Blackwater Bay is included.
Wright Basin and Cooper Basin, Santa Rosa County, on the Blackwater
River are included. The lateral extent of Unit 4 is the ordinary high
water line on each bank of the associated lakes, rivers and shorelines.
The USGS conducted a subpopulation study in the Yellow River system
during the spring (May to July) and fall (October) of 2001. Based on
the capture of 98 fish in the spring and the capture/recapture of 94
fish that fall, the USGS estimated the subpopulation to consist of 580
Gulf sturgeon of 1 m (3.3 ft) or greater in size (M. Randall, USGS,
pers. comm. 2001). This estimate excludes fish younger than 3 to 4
years of age.
Five distinct limestone outcrops have been documented as possible
spawning sites on the Yellow River, between rkm 43 and 134 (rmi 26.7
and 83.3) (Parauka and Giorgianni, 2002). Several sites consist of
brittle marl and limestone, and others of porous limestone. The lowest
downstream site (rkm 43 (rmi 26.7)) is a primitive rock revetment, a
manmade structure with a fair amount of rock substrate (Craft et al.,
2001). In recent years, biologists working for the State of Alabama
have observed young-of-the-year Gulf sturgeon near limestone outcrops
3.2 km (2 mi) south of Alabama State Highway 55 (136 rkm (84 rmi))
(Craft et al., 2001), which confirms that reproduction is occurring
within this subpopulation. The river upstream of Alabama State Highway
55 is shallow, sandy, and creek-like and, therefore, not believed
suitable for spawning (M. Randall, pers. comm. 2001; F. Parauka, pers.
comm. 2001; and G. Morgan, Conecuh National Forest, pers. comm. 2001).
Preliminary surveys located four potential summer resting
[[Page 13393]]
areas on the Yellow River main stem (Craft et al., 2001). Recent fish
captures and the confirmation of spawning at the furthest upstream
spawning habitat location near Alabama State Highway 55 support our
inclusion of the Yellow River main stem to Alabama State Highway 55
(136 rkm (84 rmi)) as critical habitat for the Yellow River
subpopulation of Gulf sturgeon.
The inclusion of the Shoal River, from the Yellow River confluence
upstream to the Florida Highway 85 bridge (13 rkm (8 rmi)), is
supported as critical habitat because it is a confirmed summer resting
area (Lorio 2000). The potential for distributaries Weaver River and
Skim Lake to be used for migration to and from the Yellow River system
(Craft et al., 2001) supports their inclusion as critical habitat. The
current and historic use of deep holes by Gulf sturgeon on the
Blackwater River main stem and between Wright Basin and Cooper Basin
demonstrate the importance of this area for summer resting and staging
(Reynolds, 1993; and Craft et al., 2001) and support its inclusion as
critical habitat for the Yellow River subpopulation.
Unit 5. Choctawhatchee River System in Holmes, Washington, and Walton
Counties, Florida and Dale, Coffee, Geneva, and Houston Counties,
Alabama
Unit 5 includes the Choctawhatchee River main stem from its
confluence with the west and east fork of the Choctawhatchee River,
Dale County, Alabama, downstream to its discharge at Choctawhatchee
Bay, Walton County, Florida. The distributaries discharging into
Choctawhatchee Bay known as Mitchell River, Indian River, Cypress
River, and Bells Leg are included. The Boynton Cutoff, Washington
County, Florida, which joins the Choctawhatchee River main stem, and
Holmes Creek, Washington County, Florida, are included. The section of
Holmes Creek from Boynton Cutoff to the mouth of Holmes Creek,
Washington County, Florida, is included. The Pea River main stem, a
Choctawhatchee River tributary, from the Elba Dam, Coffee County,
Alabama, to its confluence with the Choctawhatchee River, Geneva
County, Alabama, is included. The lateral extent of Unit 5 is the
ordinary high water line on each bank of the associated rivers and
shorelines.
Preliminary estimates of the size of the Gulf sturgeon
subpopulation in the Choctawhatchee River system are 2,000 to 3,000
fish over 61 cm (24 inches (in)) total length (F. Parauka, pers. comm.
2001).
Biologists have located Gulf sturgeon within 0.8 rkm (0.5 rmi)
downstream of the Elba Dam, Coffee County, Alabama, on the Pea River
(Lorio, 2000) and have identified suitable spawning habitat from the
Elba Dam to the Pea River mouth (Parauka and Giorgianni, 2002; and
Hightower et al., in press). The Elba Dam prevents sturgeon movement
further upstream at all flow conditions. This river reach has one
confirmed spawning site, and Gulf sturgeon often use the lower reach
for summer resting (Fox et al., 2000; and Hightower et al., in press).
Suitable spawning and resting habitat, confirmed spawning, and young-
of-the-year and juvenile feeding (F. Parauka, pers. comm. 2001) support
inclusion of the Pea River reach as critical habitat.
Five spawning sites and seven resting areas have been identified on
the Choctawhatchee River main stem between the river mouth (0 rkm (0
rmi)) and upstream to 150 rkm (93 rmi) (Hightower et al., in press).
Biologists have identified suitable spawning habitat (limestone
outcrops) periodically between 135 rkm (84 rmi) to the confluence of
the West Fork Choctawhatchee River and East Fork Choctawhatchee River
(224 rkm (139 rmi)) (Parauka and Giorgianni, 2000; H. Blalock-Herod,
FWS, pers. comm. 2002; and Hightower et al., in press ). Fox et al.
(2000) located a male at 150 rkm (93 rmi) and another male in spawning
condition near Newton (214 rkm (133 rmi)) on the Choctawhatchee River,
8 rkm (5 rmi) downstream of the confluence of the West Fork
Choctawhatchee River and East Fork Choctawhatchee River. Since Gulf
sturgeon rarely occur upstream of spawning grounds, we have included up
to the confluence of West Fork Choctawhatchee River and East Fork
Choctawhatchee River for ease of identification and with the
probability of unconfirmed spawning grounds. Suitable habitat,
confirmed spawning, and young-of-the-year and juvenile feeding support
the inclusion of the Choctawhatchee River main stem as critical
habitat.
No sturgeon have been documented within Holmes Creek, except for
the section that connects the Choctawhatchee River and Boynton Cutoff,
north and south. We have included this river section of Holmes Creek
because it acts as part of the Choctawhatchee River main stem. In 1994,
Gulf sturgeon were captured during March and April at the mouths of
Indian River, Cypress River, and Bells Leg, indicating that sturgeon
probably use these distributaries as migratory corridors to and from
the Choctawhatchee River main stem. All distributaries, including the
Indian River, Cypress River, Bells Leg, and Mitchell River, are
included as critical habitat.
Unit 6. Apalachicola River System in Franklin, Gulf, Liberty, Calhoun,
Jackson, and Gadsen Counties, Florida
Unit 6 includes the Apalachicola River mainstem, beginning from the
Jim Woodruff Lock and Dam, Gadsden and Jackson Counties, Florida,
downstream to its discharge at East Bay or Apalachicola Bay, Franklin
County, Florida. All Apalachicola River distributaries, including the
East River, Little St. Marks River, St. Marks River, Franklin County,
Florida, to their discharge into East Bay and/or Apalachicola Bay are
included. The entire main stem of the Brothers River, Franklin and Gulf
Counties, Florida, a tributary of the Apalachicola River, is included.
The lateral extent of Unit 6 is the ordinary high water line on each
bank of the associated rivers and shorelines.
Based on mark/recapture studies conducted in 1998 and 1999 in the
Apalachicola River downstream of Jim Woodruff Lock and Dam, the summer
subpopulation of subadult and adult Gulf sturgeon was estimated to be
between 270 and 321 individuals (FWS, 1998; and FWS, 1999). Seventy-one
sturgeon were collected in the upper Brothers River, upstream of the
Brickyard Cutoff and downstream of Bearman Creek between June and
September 1999 (FWS, 1999; and Lorio, 2000). Gulf sturgeon captured on
the Brothers River have not been included in the Apalachicola River
subpopulation size estimate although they are believed to be part of
the subpopulation.
The Gulf sturgeon became restricted to the portion of the
Apalachicola River downstream of the Jim Woodruff Lock and Dam upon the
construction of the dam in the 1950s. Wooley et al. (1982) documented
the capture of two Gulf sturgeon larvae on the Apalachicola River just
downstream of the Jim Woodruff Lock and Dam, thereby confirming
successful spawning up to the dam. Resting aggregations are often seen
at the base of the dam. Seven potential spawning sites have been
identified in the upper Apalachicola River between Highway 20 and the
Jim Woodruff Lock and Dam (120 to 171 km (76 to 106 rmi)) (Parauka and
Giorgianni, 2002). Suitable spawning and resting habitat, confirmed
spawning, and young-of-the-year and juvenile feeding support inclusion
of the Apalachicola River as critical habitat.
[[Page 13394]]
The entire main stem of the Brothers River, a major tributary of
the Apalachicola River, is also included as critical habitat. Spawning
has not been documented within this tributary, but an important resting
area is located in the uppermost section of the Brothers River between
Brickyard Cutoff and Bearman Creek (FWS, 1999; and Lorio, 2000).
Sturgeon use the lower Brothers River as a resting and possible
osmoregulation area (staging) before migrating into the estuarine and
marine habitats for winter feeding (Wooley and Crateau, 1985). The
Apalachicola River distributaries, including the East River, St. Marks
River and Little St. Marks River, are included, based on information
derived from other systems. Gulf sturgeon tend to use more than just
the main stem for migration into and out of the river systems (e.g.,
Suwannee, Choctawhatchee, and Pearl Rivers).
Unit 7. Suwannee River System in Hamilton, Suwannee, Madison,
Lafayette, Gilchrist, Levy, Dixie, and Columbia Counties, Florida
Unit 7 includes the Suwannee River main stem, beginning from its
confluence with Long Branch Creek, Hamilton County, Florida, downstream
to the mouth of the Suwannee River. It includes all the Suwannee River
distributaries, including the East Pass, West Pass, Wadley Pass, and
Alligator Pass, Dixie and Levy Counties, Florida, to their discharge
into the Suwannee Sound or the Gulf of Mexico. The Withlacoochee River
main stem from Florida State Road 6, Madison and Hamilton Counties,
Florida, to its confluence with the Suwannee River is included. The
lateral extent of Unit 7 is the ordinary high water line on each bank
of the associated rivers and shorelines.
The Suwannee River supports the largest Gulf sturgeon subpopulation
among the coastal rivers of the Gulf of Mexico (Huff, 1975; and
Gilbert, 1992). Sulak and Clugston (1999) reported 5,344 uniquely
tagged Suwannee River sturgeons from 1986 to 1998. Multiple models
using various age classes have been used to estimate the subpopulation
size of Gulf sturgeon on the Suwannee River system. Chapman et al.
(1997) estimated the subpopulation at 3,152 fish greater than age 6.
Sulak and Clugston's (1999) estimate was 7,650 individuals greater than
61 cm (24 in) total length and older than age 2. Pine and Allen (2001)
estimated the Suwannee River subpopulation at 5,500 individuals age 2
to 25. Based on intensive egg sampling efforts conducted between 1993
and 1998, Sulak and Clugston (1999) estimated that 30 to 90 female fish
spawn per year.
Marchant and Shutters (1996) collected two Gulf sturgeon eggs from
the Suwannee River in April 1993. These were the first Gulf sturgeon
eggs collected in the wild. Between 1993 and 1998, three spawning sites
were confirmed with the collection of Gulf sturgeon eggs on artificial
substrate samplers (Marchant and Shutters, 1996; and Sulak and
Clugston, 1999). Young-of-the-year have been documented using the river
between rkm 10 to the confluence with Roaring Creek at approximately
rkm 285 (177 rmi) on the Suwannee River main stem (Carr et al., 1996a;
Sulak and Clugston, 1999; K. Sulak, pers. comm. 2002; and J. Clugston,
pers. comm. 2002). It is believed that the farthest upstream that
sturgeon spawn during high water is Big Shoals, near White Springs,
Hamilton and Columbia Counties, Florida, but adult sturgeon are
probably unable to move upstream of Big Shoals (Huff, 1975; K. Sulak,
pers. comm. 2002; and M. Randall, pers. comm. 2002). Suitable spawning
habitat has been identified upstream to Big Shoals (Huff, 1975; H.
Blalock-Herod, pers. comm. 2002). Foster and Clugston (1997) located
five major resting areas throughout the Suwannee River. A deep river
bend and a shallow sandy section were characteristic features of the
resting areas (Foster and Clugston, 1997). Confirmed use for spawning,
identified and probable spawning habitat upstream to Big Shoals, young-
of-year and juvenile feeding, and summer resting support the inclusion
of the Suwannee River as critical habitat. For ease of identification,
the Suwannee River has been included in the unit upstream of Big Shoals
0.8 rkm (0.5 rmi) to its confluence with Long Branch Creek.
Adult Gulf sturgeon sightings and suitable spawning habitat on the
lower Withlacoochee River near Florida State Road 141, Hamilton and
Madison Counties, Florida, support the inclusion of this area as
critical habitat. We have included shoals (5 rkm (3 rmi)) located just
upstream of where sturgeon have been observed as possible spawning
habitat, and have stopped at Florida State Road 6 (14 rkm (9 rmi)),
upstream from the shoals, for ease of identification.
The Suwannee River branches near its mouth into the East Pass and
West Pass. Gulf sturgeon adults use the East Pass and West Pass for
emigration and immigration (Mason and Clugston, 1993; and Edwards et
al., in prep.). The West pass is divided into two primary channels--
Wadley Pass, connected to the Gulf of Mexico by a straight dredged
channel across the northern portion of the Sound, and Alligator Pass,
used by juveniles (Huff, 1975), connected to the Gulf of Mexico by an
undredged, natural channel. Confirmed use of the East Pass, West Pass,
and Alligator Pass, and probable use of the Wadley Pass by adult and
juvenile Gulf sturgeon for migration and feeding support the inclusion
of all distributaries of the Suwannee River as critical habitat.
Unit 8. Lake Pontchartrain, Lake St. Catherine, The Rigolets, Little
Lake, Lake Borgne, and Mississippi Sound in Jefferson, Orleans, St.
Tammany, and St. Bernard Parish, Louisiana, Hancock, Jackson, and
Harrison Counties in Mississippi, and in Mobile County, Alabama
Unit 8 encompasses Lake Pontchartrain east of the Lake
Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St.
Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound.
Critical habitat follows the shorelines around the perimeters of each
included lake. The Mississippi Sound includes adjacent open bays
including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy Bay,
and barrier island passes, including Ship Island Pass, Dog Keys Pass,
Horn Island Pass, and Petit Bois Pass. The northern boundary of the
Mississippi Sound is the shoreline of the mainland between Heron Bay
Point, Mississippi and Point aux Pins, Alabama. Critical habitat
excludes St. Louis Bay, north of the railroad bridge across its mouth;
Biloxi Bay, north of the U.S. Highway 90 bridge; and Back Bay of
Biloxi. The southern boundary follows along the broken shoreline of
Lake Borgne created by low swamp islands from Malheureux Point to Isle
au Pitre. From the northeast point of Isle au Pitre, the boundary
continues in a straight north-northeast line to the point 1 nautical
mile (nm) (1.9 km) seaward of the western most extremity of Cat Island
(30[deg]13'N, 89[deg]10'W). The southern boundary continues 1 nm (1.9
km) offshore of the barrier islands and offshore of the 72 COLREGS
lines at barrier island passes (defined at 33 CFR 80.815 (copyright))),
(d) and (e)) to the eastern boundary. Between Cat Island and Ship
Island there is no 72 COLREGS line. We, therefore, have defined that
section of the unit southern boundary as 1 nm (1.9 km) offshore of a
straight line drawn from the southern tip of Cat Island to the western
tip of Ship Island. The eastern boundary is the line of longitude
88[deg]18.8'W from its intersection with the shore (Point aux Pins) to
its intersection with the southern boundary. The lateral
[[Page 13395]]
extent of Unit 8 is the MHW line on each shoreline of the included
water bodies or the entrance to rivers, bayous, and creeks.
The Pearl River and its distributaries flow into The Rigolets,
Little Lake, and Lake Borgne, the western extension of Mississippi
Sound. The Rigolets connect Lake Pontchartrain and Lake St. Catherine
with Little Lake and Lake Borgne. The Pascagoula River and its
distributaries flow into Pascagoula Bay and Mississippi Sound.
This unit provides juvenile, subadult and adult feeding, resting,
and passage habitat for Gulf sturgeon from the Pascagoula and the Pearl
River subpopulations. One or both of these subpopulations have been
documented by tagging data, historic sightings, and incidental captures
as using Pascagoula Bay, The Rigolets, the eastern half of Lake
Pontchartrain, Little Lake, Lake St. Catherine, Lake Borgne,
Mississippi Sound, within 1 nm (1.9 km) of the nearshore Gulf of Mexico
adjacent to the barrier islands and within the passes (Davis et al.,
1970; Reynolds, 1993; Rogillio, 1993; Morrow et al., 1998a; Ross et
al., 2001a; Rogillio et al., 2002; and F. Parauka, pers. comm. 2002).
Substrate in these areas range from sand to silt, all of which contain
known Gulf sturgeon prey items (Menzel, 1971; Abele and Kim, 1986; and
American Fisheries Society, 1989).
The Rigolets is an 11.3 km (7 mi) long and about 0.6 km (0.4 mi)
wide passage connecting Lake Pontchartrain and Lake Borgne (U.S.
Department of Commerce (USDOC), 2002). This brackish water area is used
by adult Gulf sturgeon as a staging area for osmoregulation and for
passage to and from wintering areas (Rogillio et al., 2002). Lake St.
Catherine is a relatively shallow lake with depths averaging
approximately 1.2 m (4 ft), connected to The Rigolets by Sawmill Pass.
Bottom sediments in Sawmill Pass are primarily silt; Lake St.
Catherine's are composed of silt and sand (Barrett, 1971). Incidental
catches of Gulf sturgeon are documented from Lake St. Catherine and
Sawmill Pass (Reynolds, 1993; and H. Rogillio, Louisiana Department of
Wildlife and Fisheries, pers. comm. 2002). Based on the proximity of
Little Lake, Lake St. Catherine, and Sawmill Pass to The Rigolets and
Pearl River, we believe these areas are also used for staging and
feeding and, therefore, we have included them with The Rigolets as
critical habitat.
Rogillio (1990) and Morrow et al. (1996) indicated that Lake
Pontchartrain and Lake Borgne were used by Gulf sturgeon as wintering
habitat, with most catches during late September through March. Lake
Pontchartrain is 57.9 km (36 mi) long, 35.4 km (22 mi) wide at its
widest point, and 3 to 4.9 m (10 to 16 ft) deep (USDOC, 2002). Morrow
et al. (1996) documented Gulf sturgeon from the Pearl River system
using Lake Pontchartrain (verified by tags) and summarized existing
Gulf sturgeon records, which indicated greater use of the eastern half
of Lake Pontchartrain. Although Rogillio et al. (2002) did not relocate
any of their sonic tagged adult Gulf sturgeon in Lake Pontchartrain,
the eastern part of this lake is believed to be an important winter
habitat for juveniles and subadults (H. Rogillio, pers. comm. 2002).
Furthermore, we believe that Gulf sturgeon forage in Lake Pontchartrain
during the winter. The Lake Pontchartrain Causeway, twin toll highway
bridges, extends 33.6 km (20.9 mi) across Lake Pontchartrain from
Indian Beach on the south shore to Lewisburg and Mandeville on the
north shore. Sediment data from Lake Pontchartrain indicate sediments
have a greater sand content east of the causeway than west (Barrett,
1976). Most records of Gulf sturgeon from Lake Pontchartrain are
located east of the causeway, with concentrations near Bayou Lacombe
and Goose Point, both on the eastern north shore (Reynolds, 1993; and
Morrow et al., 1996). While Gulf sturgeon have also been documented
west of the causeway, generally near the mouths of small river systems
(Davis, 1970), we have excluded the western portion of Lake
Pontchartrain because we believe that the sturgeon utilizing this area
are coming from western tributaries and not the Pearl River.
Lake Pontchartrain connects by The Rigolets with Lake Borgne. Lake
Borgne, the western extension of Mississippi Sound, is partly separated
from Mississippi Sound by Grassy Island, Half Moon (Grand) Island and
Le Petit Pass Island. Lake Borgne is approximately 14.3 km (23 mi) in
length, 3 to 6 km (5 to 10 mi) in width and 1.8 to 3 m (6 to 10 ft) in
depth (USDOC, 2002). Most of Lake Borgne sediment is clay and silt
(Barrett, 1971). Many Gulf sturgeon were anecdotally reported as taken
incidentally in shrimp trawls in Lake Borgne 0.6 to 1.2 km (1 to 2 mi)
south of the Pearl River between August and October from the 1950s
through the 1980s (Reynolds, 1993). There are twenty-two additional
records of Gulf sturgeon in Lake Borgne (D. Walther, FWS, pers. comm.
2002). Known locations are spread out around the perimeter of the Lake,
including at the mouth of The Rigolets, Violet Canal, Bayou Bienvenue,
Polebe, Alligator Point, and at Half Moon Island (Reynolds, 1993). We
have included all of Lake Borgne as critical habitat.
The Mississippi Sound is separated from the Gulf of Mexico by a
chain of barrier islands, including Cat, Ship, Horn, and Petit Bois
Islands. Natural depths of 3.7-5.5 m (12 to 18 ft) are found throughout
the Sound and a channel 3.7 m (12 ft) deep has been dredged where
necessary from Mobile Bay to New Orleans (USDOC, 2002). Incidental
captures and recent studies confirm that both Pearl River and
Pascagoula River adult Gulf sturgeon winter in the Mississippi Sound,
particularly around barrier islands and barrier islands passes
(Reynolds, 1993; Ross et al., 2001a; and Rogillio et al., 2002).
Pascagoula Bay is adjacent to the Mississippi Sound. Gulf sturgeon
exiting the Pascagoula River move both east and west, with telemetry
locations as far east as Dauphin Island and as far west as Cat Island
and the entrance to Lake Pontchartrain, Louisiana (Ross et al., 2001a).
Tagged Gulf sturgeon from the Pearl River subpopulation have been
located between Cat Island, Ship Island, Horn Island, and east of Petit
Bois Islands to the Alabama State line (Rogillio et al., 2002). Gulf
sturgeon have also been documented within 1 nm (1.9 km) off the barrier
islands of Mississippi Sound. We, therefore, have included 1 nm (1.9
km) offshore of the barrier islands of Mississippi Sound. Habitat used
by Gulf sturgeon in the vicinity of the barrier islands is 1.9 to 5.9 m
(6.2 to 19.4 ft) deep (average 4.2 m (13.8 ft)), with clean sand
substrata (Heise et al., 1999b; Ross et al., 2001a; and Rogillio et
al., 2002). Preliminary data from substrate samples taken in the
barrier island areas indicate that all samples contained lancelets
(Ross et al., 2001a). Inshore locations where Gulf sturgeon were
located (Deer Island, Round Island) were 1.9 to 2.8 m (6.2 to 9.2 ft)
deep and all had mud (mostly silt and clay) substrata (Heise et al.,
1999b), typical of substrates supporting known Gulf sturgeon prey.
Unit 9. Pensacola Bay System in Escambia and Santa Rosa Counties,
Florida
Unit 9 includes Pensacola Bay and its adjacent main bays and coves.
These include Big Lagoon, Escambia Bay, East Bay, Blackwater Bay, Bayou
Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and Catfish Basin.
All other bays, bayous, creeks, and rivers are excluded at their
mouths. The western boundary is the Florida State Highway 292 Bridge
crossing Big Lagoon to Perdido Key. The southern boundary is the 72
COLREGS line between Perdido Key and Santa
[[Page 13396]]
Rosa Island (defined at 33 CFR 80.810 (g)). The eastern boundary is the
Florida State Highway 399 Bridge at Gulf Breeze, Florida. The lateral
extent of unit 9 is the MHW line on each shoreline of the included
waterbodies.
The Pensacola Bay system includes five interconnected bays,
including Escambia Bay, Pensacola Bay, Blackwater Bay, East Bay, and
the Santa Rosa Sound. The Santa Rosa Sound is addressed separately in
unit 10. The Escambia River and its distributaries (Little White River,
Dead River, and Simpson River) empty into Escambia Bay, including Bass
Hole Cove, Saultsmar Cove, and Macky Bay. The Yellow River empties into
Blackwater Bay. The entire system discharges into the Gulf of Mexico,
primarily through a narrow pass at the mouth of Pensacola Bay.
The Pensacola Bay system provides winter feeding and migration
habitat for Gulf sturgeon from the Escambia River and Yellow River
subpopulations. Over the past four years, FDEP researchers have
conducted tracking studies in the Pensacola Bay system to observe Gulf
sturgeon winter migrations. They have identified specific areas in the
bays where Escambia River and Yellow River Gulf sturgeon collect, or
migrate through, during the fall and winter season. These studies also
identified two main habitat types where Gulf sturgeon concentrate
during winter months. Movement is generally along the shoreline area of
Pensacola Bay. Gulf sturgeon showed a preference for several areas in
the bay, including Redfish Point, Fort Dickens, and Escribano Point,
near Catfish Basin (FWS, 1998; and Craft et al., 2001). Sandy shoal
areas, located along the south and east side of Garcon Point, south
shore of East Bay (Redfish Point area) and near Fair Point, appear to
be commonly used, especially in the fall and early spring. During
midwinter, sturgeon are commonly found in deep holes located north of
the barrier island at Ft. Pickens, south of the Pensacola Naval Air
Station, and at the entrance of Pensacola Pass. The depth in these
areas ranges from 6 to 12.1 m (20 to 40 ft). Other areas where tagged
fish were frequently located include Escribano Point, near Catfish
Basin, and the mouth of the Yellow River. Previous incidental captures
of Gulf sturgeon have been recorded in Pensacola Bay, Big Lagoon, and
Bayou Grande (Reynolds, 1993; and Lorio, 2000).
Unit 10. Santa Rosa Sound in Escambia, Santa Rosa, and Okaloosa
Counties, Florida
Unit 10 includes the Santa Rosa Sound, bounded on the west by the
Florida State Highway 399 bridge in Gulf Breeze, Florida and the east
by U.S. Highway 98 bridge in Fort Walton Beach, Florida. The northern
and southern boundaries of unit 10 are formed by the shorelines to the
MHW line or by the entrance to rivers, bayous, and creeks.
The Santa Rosa Sound is a lagoon between the mainland and Santa
Rosa Island that connects Pensacola Bay in the west with Choctawhatchee
Bay in the east. The Sound extends east to west approximately 57.9 km
(35.9 mi) and varies in width between 0.32 and 3.5 km (0.2 to 2.2 mi)
(FDEP, 1993). The Intracoastal Waterway transects the sound. The Santa
Rosa Sound is designated as critical habitat because we believe it
provides one continuous migratory pathway between Choctawhatchee Bay,
Pensacola Bay, and the Gulf of Mexico for feeding and genetic
interchange. Within the last 3,000 years, periodic shoaling closed the
opening of Choctawhatchee Bay to the Gulf of Mexico. For many years,
the Santa Rosa Sound provided the only way for Choctawhatchee River
Gulf sturgeon to migrate to the Gulf of Mexico (Wakeford, 2001). Recent
locations of subadult and adult Gulf sturgeon within the Santa Rosa
Sound confirm its present use by the Choctawhatchee River
subpopulations (Fox et al., 2002; and F. Parauka, pers. comm. 2002).
The Escambia and Yellow Rivers subpopulations may also use this area
due to its close proximity. Gulf sturgeon have been located mid-channel
and in shoreline areas in 2 to 5.2 m (6.6 to 17.1 ft) depths and sand
substrate. The approximate length of the critical habitat unit is 52.8
km (33 miles). Bridges were chosen as the eastern and western
boundaries for ease in identification. Any portion of the sound not
included in this unit is captured by the adjacent critical habitat
units.
Unit 11. Florida Nearshore Gulf of Mexico Unit in Escambia, Santa Rosa,
Okaloosa, Walton, Bay, and Gulf Counties in Florida
Unit 11 includes a portion of the Gulf of Mexico as defined by the
following boundaries. The western boundary is the line of longitude
87[deg]20.0'W (approximately 1 nm (1.9 km) west of Pensacola Pass) from
its intersection with the shore to its intersection with the southern
boundary. The northern boundary is the MHW of the mainland shoreline
and the 72 COLREGS lines at passes as defined at 30 CFR 80.810 (a-g).
The southern boundary of the unit is 1 nm (1.9 km) offshore of the
northern boundary; the eastern boundary is the line of longitude
85[deg]17.0'W from its intersection with the shore (near Money Bayou
between Cape San Blas and Indian Peninsula) to its intersection with
the southern boundary.
Unit 11 includes winter feeding and migration habitat for Gulf
sturgeon from the Yellow River, Choctawhatchee River, and Apalachicola
River subpopulations. Telemetry relocation data suggest that these
subpopulations feed in nearshore Gulf of Mexico waters between their
natal river systems (Fox et al., 2002; and F. Parauka, pers. comm.
2002). Gulf sturgeon from the Choctawhatchee River subpopulation have
been documented both east and west of Choctawhatchee Bay ( Fox et al.,
2002; and F. Parauka, pers. comm. 2002). During the winter of 2001-
2002, personnel from both USGS and FWS attached pop-up satellite tags
to 20 Gulf sturgeon (12 from the Suwannee River, 4 from the
Choctawhatchee River, 2 from the Apalachicola River, and 2 from the
Yellow River) to identify winter feeding areas in the Gulf of Mexico.
Due to a design flaw, errors in attachment, or sturgeon's ability to
successfully shed the tags, the tags failed to report reliable data
with only two exceptions. One of the Choctawhatchee River-tagged Gulf
sturgeon was located in Hogtown Bayou in Choctawhatchee Bay; however,
this provided no new information as we already knew that some adult
Gulf sturgeon overwinter in this bayou. The other operating tag had
been attached to a Yellow River Gulf sturgeon. Manual tracking in the
vicinity of that Yellow River Gulf sturgeon led to the relocation of
another tagged Gulf sturgeon. As a result, tagged individuals from
three different subpopulations (Choctawhatchee, Yellow, and
Apalachicola Rivers) were relocated on multiple occasions in close
proximity to one another, suggesting an important feeding area just
offshore of Mexico Beach, Crooked Island East, and Crooked Island West
over sand substrate. These data suggest that Gulf sturgeon from the
Yellow River, Choctawhatchee River, and Apalachicola River remain
within 1.6 km (1 mi) of the coastline between these river systems (F.
Parauka, pers. comm. 2002). Examination of bathymetry data along the
Gulf of Mexico coastline between the Pensacola Bay and Apalachicola Bay
reveals that depths of less than 6 m (19.7 ft), where Gulf sturgeon are
generally found, are all
[[Page 13397]]
contained within 1 nm (1.9 km) from shore. Gulf nearshore substrate
contains unconsolidated, fine-medium grain sands which support
crustaceans such as mole crabs, sand fleas, various amphipod species,
and lancelets (Menzel, 1971; Abele and Kim, 1986; and American
Fisheries Society, 1989). Based on movement patterns, it appears these
Gulf sturgeon were feeding in the nearshore Gulf of Mexico on route to
their natal rivers. Given this information, we have included the
nearshore (up to 1 nm (1.9 km)) Gulf of Mexico waters in this unit
between Pensacola and Apalachicola Bays.
Unit 12. Choctawhatchee Bay in Okaloosa and Walton Counties, Florida
Unit 12 includes the main body of Choctawhatchee Bay, Hogtown
Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous,
creeks, and rivers are excluded at their mouths/entrances. The western
unit boundary is the U.S. Highway 98 bridge at Fort Walton Beach,
Florida; the southern boundary is the 72 COLREGS line across East
(Destin) Pass as defined at 33 CFR 80.810 (f). The lateral extent of
unit 12 is the MHW line on each shoreline of the included water bodies.
Choctawhatchee Bay provides important habitat for maintaining the
health of subadult and adult Gulf sturgeon as evidenced by a large
number of Gulf sturgeon overwintering in the system (FWS, 1997; FWS
1998; and Parauka et al., in press). The Choctawhatchee Bay offers a
feeding area for both subadults and adults (FWS, 1998; and Fox et al.,
2002). Tagged subadults showed a preference for shoreline habitats
which are predominated by sandy substrates, low salinity and water
depths less than 3 m (10 ft) (FWS, 1997; FWS, 1998; and Parauka et al.,
in press). Most adult Gulf sturgeon were located in shallow water (2 to
4 m (6.6 to 13.1 ft)) with predominantly (greater than 80 percent)
sandy sediment (Fox et al., 2002). Ghost shrimp, a component of the
sturgeon diet, are typically found in substrates ranging from sandy mud
to organic silty sand (Felder and Lovett, 1989), and their densities
were greatest nearshore along the middle and eastern portions of the
Choctawhatchee Bay (Heard et al., 2000), the area frequented by the
Gulf sturgeon (Fox et al., 2002). We have included the deeper central
portion of the Bay in unit 12 as critical habitat because the Gulf
sturgeon are known to use the deeper bay waters for movement between
the shoreline areas (Fox et al., 2002).
Unit 13. Apalachicola Bay in Gulf and Franklin County, Florida
Unit 13 includes the main body of Apalachicola Bay and its adjacent
sounds, bays, and the nearshore waters of the Gulf of Mexico. These
consist of St. Vincent Sound, including Indian Lagoon; Apalachicola Bay
including Horseshoe Cove and All Tides Cove; East Bay including Little
Bay and Big Bay; and St George Sound, including Rattlesnake Cove and
East Cove. Barrier Island passes (Indian Pass, West Pass, and East
Pass) are also included. Sike's Cut is excluded from the lighted buoys
on the Gulf of Mexico side to the day boards on the bay side. The
southern unit boundary includes water extending into the Gulf of Mexico
1 nm (1.9 km) from the MHW line of the barrier islands and from 72
COLREGS lines between the barrier islands (defined at 33 CFR 80.805 (e-
h)); the western boundary is the line of longitude 85[deg]17.0'W from
its intersection with the shore (near Money Bayou between Cape San Blas
and Indian Peninsula) to its intersection with the southern boundary.
The eastern boundary of the unit is formed by a straight line drawn
from the shoreline of Lanark Village at 29[deg]53.1'N, 84[deg]35.0'W to
a point that is 1 nm (1.9 km) offshore from the northeastern extremity
of Dog Island at 29[deg]49.6'N, 84[deg]33.2'W. The lateral extent of
unit 13 is the MHW line on each shoreline of the included water bodies
or the entrance of excluded rivers, bayous, and creeks.
The Apalachicola River empties into Apalachicola Bay near Little
Bay and Big Bay. The Apalachicola Bay system, a highly productive
lagoon-and-barrier-island complex, consists of the bay proper, East
Bay, St. George Sound, Indian Lagoon, and St. Vincent Sound (Wakeford,
2001). It is relatively shallow, averaging 2 to 3 m (6.6 to 9.8 ft) in
depth (Livingston, 1980). The benthic habitat type most often found in
Apalachicola Bay system is soft sediment, comprising approximately 70
percent of the estuarine area (Livingston, 1980). Its composition of
sand, clay, and silt varies considerably depending on the location in
the bay. The Apalachicola Bay connects with the Gulf of Mexico through
several passes, including Indian Pass, West Pass, East Pass, and Sike's
Cut, a man-made opening established in the mid 1950s (Odenkirk, 1989).
Unit 13 provides winter feeding migration habitat for the
Apalachicola River Gulf sturgeon subpopulation. Gulf sturgeon have been
documented by sightings, incidental captures, and telemetry studies
throughout Apalachicola Bay, East Bay, St. George Sound, St. Vincent
Sound, and Indian Lagoon (Swift et al., 1977; Wooley and Crateau, 1985;
Odenkirk, 1989; FWS, 2000; and F. Parauka, pers. comm. 2002). Gulf
sturgeon have also been documented in Indian Pass, West Pass, East
Pass, and just north of Dog Island (Wooley and Crateau, 1985; Odenkirk,
1989; FWS, 2000; and F. Parauka, pers. comm. 2002). Substantial weight
gains and the presence of suitable habitat for prey items indicate that
Gulf sturgeon are feeding while within these bodies of water (Wooley
and Crateau, 1985; and Odenkirk, 1989). These areas are also used for
accessing adjacent marine and estuarine feeding areas designated in
unit 11. Gulf sturgeon are believed to migrate from Apalachicola Bay
into the Gulf of Mexico following prevailing currents and exiting
primarily through the two most western passes (Indian and West)
(Odenkirk, 1989). No Gulf sturgeon have been documented using Sike's
Cut, a man-made opening established in the 1950s bisecting Little St.
George Island and St. George Island; therefore, Sike's Cut is excluded
from our designation.
Tag return data from incidental captures and recent relocation data
document Gulf sturgeon south of the Apalachicola barrier islands,
generally within a mile of the shoreline (Odenkirk, 1989; and FWS,
2000). On June 8, 1992, a commercial shrimp fisherman provided
anecdotal information that he and other shrimp fishermen, had caught
hundreds of Gulf sturgeon, with estimated weights generally between
22.7 to 27.2 kg (50 to 60 lbs), in the same location, each spring
(April, May, and June), for the past thirty years (1962 to 1992) (F.
Parauka, pers. comm. 2002). The fishermen described the location as
south of St. George Island, within a few hundred yards of the beach. He
described the capture areas as being adjacent to a shoal extending
approximately 3.2 km (2 mi) offshore. Examination of bathymetric data
shows that there are several shoals in that general vicinity. Since we
are unable to confirm the specific location of the area described by
this fisherman, we are extending this critical habitat unit only 1 nm
(1.9 km) offshore of the barrier islands bordering Apalachicola Bay and
Cape San Blas, a distance for which we have supporting telemetry data.
In doing so, we will capture some of the shallow shoals extending south
of the barrier islands, which we believe provide important foraging
substrate.
[[Page 13398]]
Unit 14. Suwannee Sound in Dixie and Levy Counties, Florida
Unit 14 includes Suwannee Sound and a portion of adjacent Gulf of
Mexico waters extending 9 nm from shore (16.7 km) out to the State
territorial water boundary. Its northern boundary is formed by a
straight line from the northern tip of Big Pine Island (at
approximately 29[deg]23'N, 83[deg]12'W) to the Federal-State boundary
at 29[deg]17'N, 83[deg]21'W; the southern boundary is formed by a
straight line from the southern tip of Richards Island (at
approximately 29[deg]11'N, 83[deg]04'W) to the Federal-State boundary
at 29[deg]04'N, 83[deg]15'W. The lateral extent of unit 14 is the MHW
line along the shorelines and the mouths of the Suwannee River (East
and West Pass), its distributaries and other rivers, creeks, or water
bodies.
The Suwannee River system is unique among Gulf sturgeon river
systems in that the river flows directly into the Suwannee Sound and
Gulf of Mexico without any intervening barrier islands. Suwannee Sound
is a shallow (typically less than 2 m (6.6 ft)), estuarine basin, a
little less than 10 nm (8 km) long and a little over 4 nm (8 km) wide
at its widest point. It is enclosed on its seaward side by Suwannee
Reef, an approximately 14.6 nm (27 km) long arc of oyster reefs and
shoals (Edwards et al., in prep.). The bathymetry of waters off the
coastline and north and south of Suwannee Sound is different from the
waters adjacent to other systems. Shallow waters are not confined to
the nearshore environment, and depths less than 6 m (19.7 ft) extend 9
to 10 mi (14.5 to 16.1 km) off the coastline.
Telemetry data confirm that subadult and adult Gulf sturgeon leave
the river during October and November and enter Suwannee Sound and the
nearshore Gulf of Mexico (Carr et al., 1996b; and Edwards et al., in
prep.). Tracking data indicate that Gulf sturgeon move slowly and
remained offshore of Suwannee Sound in nearby shallow (less than 6 m
(19.7 ft)) marine/estuarine habitats for a period of two months, until
at least mid or late December. Overall movement patterns are punctuated
by periods of slow movement within small areas, suggesting foraging
(Edwards et al., in prep.). Mason and Clugston (1993) found large,
immigrating Suwannee River Gulf sturgeon fed on nearshore coastal shelf
organisms lancelets (Branchiostoma caribaeum), brachiopods (Glottida
pyramida), unidentified pelagic shrimps, polychaetes, unidentified
marine molluscs, starfish and sea cucumbers. Carr et al. (1996b) found
that adult Gulf sturgeon feed primarily on brachiopods and ghost
shrimp, before entering the river. The consumption of brachiopods as a
primary Gulf sturgeon food source is currently being researched by the
University of Florida. Numerous underwater beds containing brachiopods
have recently been located in the Suwannee River estuary and adjacent
areas in Suwannee Sound (D. Murie and D. Parkyn, pers. comm. 2002).
Recent stomach content analyses using a non-lethal method of stomach
pumping (lavaging) support that Gulf sturgeon from the Suwannee River
subpopulation feed primarily on brachiopods, and to lesser amounts on
ghost shrimp, amphipods, and worms prior to entering the river (D.
Murie and D. Parkyn, pers. comm. 2002).
Gulf sturgeon tracking and relocation data were used to delineate
the boundaries of this critical habitat unit. In 1998, 18 out of 19
sonic-tagged Gulf sturgeon were consistently relocated and found to be
concentrated in a relatively small area (115 km \2\ (44.4 mi \2\ ))
offshore of Suwannee Sound (Edwards et al., in prep.). Specific
locations within the concentration area were around Waldley Channel,
West Gap, and Hedemon Reef. The farthest offshore area was Hedemon
Reef, approximately 5 to 6 nm (9.3 to 11.1 km) from the Suwannee River
opening. Previous telemetry data and tag recaptures documented Gulf
sturgeon using Gulf of Mexico waters as far out as 9 nm (16.7 km)
(Sulak and Clugston, 1999; and Edwards et al., in prep.). More
recently, on March 22, 2002, two Gulf sturgeon were observed jumping in
the area of 29[deg]14'N, 83[deg]18'W, further substantiating the Gulf
sturgeon's use of shallow State waters further offshore (greater than 6
nm (11.1 km)) (Harris, pers. comm. 2002). Benthic samples taken where
the fish were jumping were comprised of fine sand substrate and
lancelets. Although lancelets are recovered less frequently than
brachiopods in the stomachs of Suwannee River Gulf sturgeon, this may
be a result of quicker decomposition of lancelets during digestion
compared to brachiopods. Our designation, therefore, includes waters
out to 9 nm (16.7 km) to encompass these areas that we believe are
essential for the conservation of the Gulf sturgeon. The northern
extent of the tracked sturgeon concentration area depicted in Edwards
et al. (in prep.) corresponds approximately to the northern-most
extremity of Big Pine Island. We, therefore, have chosen that easy-to-
identify location for the northern limit of this critical habitat unit.
The southern extent of the concentration area depicted in Edwards et
al. (in prep.) corresponds approximately to Richards Island. In
addition to the telemetry data, Gulf sturgeon sightings are frequently
reported around Deer Island and Derrick Key (F. Chapman, UF, pers.
comm. 2002). Derrick Key is approximately 1 m (1.6 km) offshore of
Richards Island. Based on these data, we are designating the
southernmost extremity of Richards Island for the southern limit of
unit 14.
Although Gulf sturgeon have been relocated both north and south of
this critical habitat area (Reynolds, 1993; F. Chapman, pers. comm.
2002; and Edwards et al., in prep.), records are relatively rare and
encompass approximately 643.7 km (400 mi) of coastline (from Charlotte
Harbor to Apalachicola Bay). While Gulf sturgeon may congregate in
additional shallow water areas or migrate throughout the entire area,
without additional information we cannot include additional areas as
critical habitat.
Land Ownership
Upon statehood in 1811 for Louisiana, 1817 for Mississippi, 1819
for Alabama, and 1845 for Florida, these States were granted ownership
of lands beneath tidally influenced and navigable waters up to the high
water mark (Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)). It is
possible that prior sovereigns or the States have made grants to
private parties which include lands below mean high waters of the
navigable waters included within this rule. Thus, this rule may affect
limited parcels of private land. However, we believe that the majority
of lands designated here as critical habitat are owned by the States of
Louisiana, Mississippi, Alabama, and Florida. The majority of riparian
lands bordering riverine critical habitat units are in private
ownership. Table 3 summarizes public lands adjacent to designated
critical habitat units.
Table 3.--Public Lands Adjacent To Designated Critical Habitat Units
------------------------------------------------------------------------
-------------------------------------------------------------------------
Unit 1. Pearl--Lefleur's Bluff SP, Pearl River WMA, Bogue Chitto NWR,
Old River WMA, John C. Stennis Space Center.
Unit 2. Pascagoula--Desoto NF, Pascagoula River WMA, Ward Bayou WMA, MS
Sandhill Crane NWR.
Unit 3. Escambia-Lower Escambia River WtrMA, Conecuh NF.
Unit 4. Yellow--Yellow River WtrMA, Eglin Air Force Base, Conecuh NF,
Blue Spring WMA, Blackwater River Recreational Area.
[[Page 13399]]
Unit 5. Choctawhatchee--Choctawhatchee River SF, Choctawhatchee River
Delta Preserve, Choctawhatchee River WtrMA.
Unit 6. Apalachicola--Chattahoochee Nature Park, Torreya SP,
Apalachicola Bluffs and Ravines Preserve, Apalachicola WMA,
Apalachicola River WtrMA, Apalachicola NF, Apalachicola National
Estuarine Research Reserve
Unit 7. Suwannee--Ft. Union CA, Holton Creek CA, Suwannee River SP CA,
Twin Rivers SF, Madison Co. CA, Anderson Spring CA, Charles Spring CA,
Allen Mill Pond CA, Peacock Spring CA, Little River CA, Troy Springs
CA, Grady CA, Stuart Landing CA, Hatchbend CA, Rock Bluff CA, Log
Landing CA, Wannee CA, Fanning Springs SRA, Andrews WMA, Manatee
Springs SP, Fowler's Bluff CA, Cummer Sanctuary, Lower Suwannee NWR,
Troy Springs SP, Convict Spring CA, Yellow Jacket CA, Suwannee River
SP, Big Shoals SP, Big Shoals CA, Camp Branch CA, Deep Creek CA,
Stephen Foster State Folk Culture Center, Suwannee Valley CA, Swift
Creek CA, Woods Ferry CA
Unit 8. Lake Borgne, Mississippi Sound, Lake Pontchartrain--Biloxi WMA,
Bayou Sauvage NWR, Big Branch Marsh NWR, Grand Bay NWR, Gulf Islands
NS, Buccaneer SP, St. Hospital WMA, Fontainebleau SP, St. Tammany SWR,
Pearl River WMA, Fort Pike State Historic Site
Unit 9. Pensacola Bay--Gulf Islands NS, Eglin AFB, Pensacola Naval Air
Station, Garcon Point WMD, Yellow River WtMR, Lower Escambia River Mgt.
Area, Bay Bluffs Park, Escambia Bay Bluffs, Fort Pickens AP, Yellow
River Marsh AP
Unit 10. Santa Rosa Sound--Gulf Islands NS, Eglin AFB.
Unit 11. Near Shore GOM--Gulf Islands NS, Eglin AFB (main base and Cape
San Blas), St. Vincent NWR, St. Joe SP, Salina Park, Tyndall AFB, St.
Andrew SP, Camp Helen SRA, Deer Lake SP, Grayton SRA, Topsail Hill St.
Preserve, Henderson SRA, Pensacola Naval Air Station, Perdido Key SRA,
Fort Pickens AP, St. Andrew Bay AP, St. Joseph Bay AP
Unit 12. Choctawhatchee Bay--Choctawhatchee River Delta Preserve, Rocky
Bayou State Recreation SRA, Eglin AFB, Basin Bayou Recreation Area.
Unit 13. Apalachicola Bay--St. Vincent NWR, St. George Island SP,
Apalachicola WMA, Apalachicola National Estuarine Research Reserve,
Apalachicola Bay AP
Unit 14. Suwannee Sound--Lower Suwannee NWR, Cedar Keys NWR, Big Bend
Seagrasses AP.
------------------------------------------------------------------------
* Abbreviations--AFB=Air Force Base, AP=Aquatic Preserve,
CA=Conservation Area, NF=National Forest, NS=National Seashore,
NWR=National Wildlife Refuge, SCA=State Commemorative Area, SF=State
Forest, SP=State Park, SRA=State Recreation Area, SWR=State Wildlife
Refuge, WMA=Wildlife Management Area, WMD=Water Management District,
WtrMA=Water Management Area.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including us,
to insure that their actions are not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. The regulatory effects of
a critical habitat designation under the Act are triggered through the
provisions of section 7, which applies to all activities conducted,
authorized, or funded by a Federal agency (Federal actions).
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR part 402. Individuals, organizations,
States, local governments, and other non-Federal entities are affected
by the designation of critical habitat if their actions occur on
Federal lands, require Federal authorization, or involve Federal
funding.
Consultation for Designated Critical Habitat
If a Federal action may affect a listed species or its designated
critical habitat, the action agency must initiate consultation with us
(50 CFR 402.14). Through this consultation, we would advise the agency
whether the action would likely jeopardize the continued existence of
the species or destroy or adversely modify its critical habitat, or
both.
When we issue a biological opinion that concludes that an action is
likely to result in the destruction or adverse modification of critical
habitat, we must provide reasonable and prudent alternatives to the
action, if any are identifiable. Reasonable and prudent alternatives
are actions identified during consultation that can be implemented in a
manner consistent with the intended purpose of the proposed action, are
consistent with the scope of the action agency's authority and
jurisdiction, are economically and technologically feasible, and would
likely avoid the destruction or adverse modification of critical
habitat (50 CFR 402.02).
Reinitiation of Prior Consultations
Following designation of critical habitat, regulations at 50 CFR
402.16 require a Federal agency to reinitiate consultation for
previously reviewed actions that may affect critical habitat and over
which the agency has retained discretionary involvement or control.
Activities That May Destroy or Adversely Modify Gulf Sturgeon Critical
Habitat
Section 4(b)(8) of the Act requires us, in any proposed or final
rule designating critical habitat, to briefly describe and evaluate
those activities that may adversely modify such habitat, or that may be
affected by such designation, to the maximum extent practicable.
Activities that may destroy or adversely modify critical habitat for
the Gulf sturgeon, or that may be affected by such designation,
include, but are not limited to the following actions when authorized,
funded or carried out by a Federal agency:
(1) Actions that would appreciably reduce the abundance of riverine
prey for larval and juvenile sturgeon, or of estuarine and marine prey
for juvenile and adult Gulf sturgeon, within a designated critical
habitat unit, such as dredging; dredged material disposal;
channelization; in-stream mining; and land uses that cause excessive
turbidity or sedimentation.
(2) Actions that would appreciably reduce the suitability of Gulf
sturgeon spawning sites for egg deposition and development within a
designated critical habitat unit, such as impoundment; hard-bottom
removal for navigation channel deepening; dredged material disposal;
in-stream mining; and land uses that cause excessive sedimentation.
(3) Actions that would appreciably reduce the suitability of Gulf
sturgeon riverine aggregation areas, also referred to as resting,
holding, and staging areas, used by adult, subadult, and/or juveniles,
believed necessary for minimizing energy expenditures and possibly for
osmoregulatory functions, such as dredged material disposal upstream or
directly within such areas; and other land uses that cause excessive
sedimentation.
(4) Actions that would alter the flow regime (the magnitude,
frequency, duration, seasonality, and rate-of-change of fresh water
discharge over time) of a riverine critical habitat unit such that it
is appreciably impaired for the purposes of Gulf sturgeon migration,
resting, staging, breeding site selection, courtship, egg
fertilization, egg deposition, and egg development, such as
impoundment; water diversion; and dam operations.
(5) Actions that would alter water quality within a designated
critical
[[Page 13400]]
habitat unit, including temperature, salinity, pH, hardness, turbidity,
oxygen content, and other chemical characteristics, such that it is
appreciably impaired for normal Gulf sturgeon behavior, reproduction,
growth, or viability, such as dredging; dredged material disposal;
channelization; impoundment; in-stream mining; water diversion; dam
operations; land uses that cause excessive turbidity; and release of
chemicals, biological pollutants, or heated effluents into surface
water or connected groundwater via point sources or dispersed non-point
sources.
(6) Actions that would alter sediment quality within a designated
critical habitat unit such that it is appreciably impaired for normal
Gulf sturgeon behavior, reproduction, growth, or viability, such as
dredged material disposal; channelization; impoundment; in-stream
mining; land uses that cause excessive sedimentation; and release of
chemical or biological pollutants that accumulate in sediments.
(7) Actions that would obstruct migratory pathways within and
between adjacent riverine, estuarine, and marine critical habitat
units, such as dams, dredging, point-source-pollutant discharges, and
other physical or chemical alterations of channels and passes that
restrict Gulf sturgeon movement.
Previous Section 7 Consultations
Many section 7 consultations for Federal actions affecting the Gulf
sturgeon and its habitat have preceded this critical habitat
designation. The action agencies have included the USACE, other DOD
agencies, the U.S. Coast Guard, the National Park Service, the Federal
Highway Administration, the Minerals Management Service (MMS), the
Federal Energy Regulatory Commission, and others. We have also
conducted intra-service section 7 consultations on our own actions.
Since listing, the FWS has conducted 320 informal and 14 formal
consultations, and NMFS has conducted 70 informal and 4 formal
consultations involving Gulf sturgeon. The informal consultations, all
of which concluded with a finding that the Federal action would not
affect or would not likely adversely affect the Gulf sturgeon,
addressed a wide range of actions including navigation, beach
nourishment, Gulf of Mexico fishery management planning, oil and gas
leases, power plants, bridges, pipelines, breakwaters, rip-rap, levees
and other flood-protection structures, piers, bulkheads, jetties,
military actions, and in-stream gravel mining. The formal
consultations, which followed a finding that the Federal action may
affect Gulf sturgeon, have dealt exclusively with navigation projects,
oil and gas leases, pipelines, review of water quality standards, and
disaster recovery activities, and have resulted in biological opinions.
Also, the Gulf sturgeon was mentioned in several biological opinions
that were triggered by may-affect determinations for other listed
species. To date, none of our opinions have concluded that a proposed
Federal action would jeopardize the continued existence of the Gulf
sturgeon.
Previous biological opinions for the Gulf sturgeon have included
discretionary conservation recommendations to the action agency.
Conservation recommendations are activities that would avoid or
minimize the adverse effects of a proposed action on a listed species
or its critical habitat, help implement recovery plans, or develop
information useful to the species' conservation.
Previous biological opinions for the Gulf sturgeon also have
included non-discretionary reasonable and prudent measures, with
implementing terms and conditions, which are designed to minimize the
proposed action's incidental take of Gulf sturgeon. Section 3(18) of
the Act defines the term take as ``to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture or collect, or to attempt to engage
in any such conduct.''
The conservation recommendations and reasonable and prudent
measures provided in previous Gulf sturgeon biological opinions have
included enforcement of marine debris and trash regulations; avoidance
of dredging and disposal in deeper portions of the channel; monitoring
and reporting of ``take'' events during project construction; operation
of equipment so as to avoid or minimize take; monitoring of post-
project habitat conditions; monitoring of project-area Gulf sturgeon
subpopulations; limiting of dredging to the minimum dimensions
necessary; limiting of the depth of dredged material placed in disposal
areas; arrangement of the sequence of areas for dredging to minimize
potential harm; screening of intake structures; avoidance of riverine
dredging during spawning months; limiting of tow times of trawl nets
for hurricane debris cleanup; addition of specific measures for species
protection to oil spill contingency plans; and funding of research
useful for Gulf sturgeon conservation.
The designation of critical habitat will only impact those private
landowner activities that require Federal funding or permits.
Designation of critical habitat is applicable to all activities
approved, funded, or carried out by Federal agencies.
Jurisdictional Responsibilities for the Management of the Gulf Sturgeon
When the Gulf sturgeon was listed on September 30, 1991 (56 FR
49653), the Services had not resolved jurisdictional responsibilities
for the management of the Gulf sturgeon. Both Services signed the
listing rule in agreement that the species required protection. The
final listing rule stated that until the jurisdictional issue was
resolved, the FWS would be responsible for the species once the listing
became effective. Although the issue has never been formally resolved,
we have been operating under a verbal agreement in which the FWS
maintains the lead for recovery actions. Consultation responsibilities
were divided, with the FWS performing consultation review for projects
impacting the Gulf sturgeon in the riverine and estuarine habitats, and
NMFS performing consultation review for projects affecting the species
in marine habitats.
We formalize here Gulf sturgeon jurisdictional responsibilities. In
order to enhance consultation coordination efficiency for the action
agencies, the following structure is adopted. The FWS will maintain
primary responsibility for recovery actions in fresh water and the NMFS
will assist in and continue to fund recovery actions pertaining to
estuarine and marine habitats. In riverine units, the FWS will be
responsible for all consultations regarding Gulf sturgeon and critical
habitat. In estuarine units, we will divide responsibility based on the
action agency involved. The FWS will consult with the Department of
Transportation, EPA, the U.S. Coast Guard, and the Federal Emergency
Management Agency. NMFS will consult with the DOD, USACE, MMS, and any
other Federal agencies not mentioned here explicitly. In marine units,
NMFS will be responsible for all consultations regarding Gulf sturgeon
and critical habitat. For any Federal projects that extend into the
jurisdiction of both the Services, as defined above, FWS will be the
lead consulting agency, and coordinate internally with NMFS. Each
agency will conduct its own intra-agency consultations as necessary.
Exclusions Under Section 4(b)(2)
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial information
available, and to consider
[[Page 13401]]
the economic and other relevant impacts of designating a particular
area as critical habitat. We may exclude areas from critical habitat
upon a determination that the benefits of such exclusions outweigh the
benefits of specifying such areas as critical habitat. We cannot
exclude areas from critical habitat when the exclusion will result in
the extinction of the species concerned.
Economic Impacts
Following the publication of the proposed critical habitat
designation, a draft economic analysis was conducted to estimate the
potential economic impact of the designation, in accordance with the
recent decision in the N.M. Cattlegrowers Ass'n v. U.S. Fish and
Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001). The draft analysis was
made publically available for review on August 8, 2002. We accepted
comments on the draft analysis until October 7, 2002.
Our draft economic analysis evaluated the potential future section
7 effects, including indirect effects, associated with designating
critical habitat for the Gulf Sturgeon. The categories of potential
costs considered in the analysis included the costs associated with:
(1) Conducting section 7 consultations associated with the listing or
with the designation of critical habitat, including incremental
consultations and technical assistance; (2) modifications to projects,
activities, or land uses resulting from the section 7 consultations;
(3) indirect economic impacts on local industries and enterprises
resulting from the physical changes to habitat areas that may be
associated with project modifications (e.g., regional economic
impacts). The most likely economic effects of critical habitat
designation are on activities funded, authorized, or carried out by a
Federal agency.
Following the close of the comment period on the draft economic
analysis, a final analysis was completed that incorporated public
comments on the draft analysis and made other changes in the draft.
Based on the draft and final economic analyses, and in consideration of
all other relevant impacts of the designation, the Services are
excluding under Section 4(b)(2) major shipping channels, as identified
on standard navigation charts and marked by buoys, in the following
three units:
(1) Unit 2. Pascagoula River System in Forrest, Perry, Greene,
George, Jackson, Clarke, Jones, and Wayne Counties, Mississippi.--The
major shipping channel of this unit is the southernmost 2.4 km (1.5 mi)
of the Pascagoula River. The specific area excluded extends from the
river mouth (rkm 0 (rmi 0)) to the river crossing with the CSX railroad
bridge, approximately 2.4 km (1.5 mi) north of the river mouth. This
channel is generally marked on the USACE's Alabama-Mississippi stream
mileage tables with drainage areas (USACE 1985).
(2) Unit 8. Lake Pontchartrain, Lake St. Catherine, The Rigolets,
Little Lake, Lake Borgne, and Mississippi Sound in Jefferson, Orleans,
St. Tammany, and St. Bernard Parish, Louisiana, Hancock, Jackson, and
Harrison Counties in Mississippi, and in Mobile County, Alabama.--The
major shipping channel of this unit is the GIWW and the approach
channels to the Port of Pascagoula. Both channels are generally marked
on USGS topographic maps and maps published for the public by the Corps
of Engineers. The specific areas being excluded are marked by
navigation buoys maintained by the U.S. Coast Guard.
(3) Unit 9: Pensacola Bay System in Escambia and Santa Rosa
Counties, Florida.--The major shipping channels of this unit are in the
southern portion of Pensacola Bay and serve the Port of Pensacola and
the Pensacola Naval Air Station. These channels are generally marked on
USGS topographic maps and maps published for the public by the Corps of
Engineers. The specific areas being excluded are marked by navigation
buoys maintained by the U.S. Coast Guard.
The Services have decided to exclude these areas after balancing
the benefits of excluding against the benefits of including such areas
as critical habitat. In the absence of other relevant factors, if
excluding an area from a critical habitat designation will relieve a
negative economic impact, and at the same time including the area fails
to confer a counter-balancing positive benefit to the species, then the
benefits of excluding the area from critical habitat outweigh the
benefits of including it. The results of this type of evaluation will
vary significantly depending on the landowners, geographic areas, and
species involved.
(1) Benefits of Inclusion
The benefits of including these areas in the critical habitat
designation is low. While Units 2, 8, and 9 are essential to the
conservation of the Gulf sturgeon, the navigation channels contained
within each of these units constitutes a small proportion of the
individual unit. In areas that are frequently maintained by dredging
(e.g. entrance channels to the Port of Pascagoula), the 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.
In Unit 2, Gulf sturgeon use the West and East distributaries of
the Pascagoula River during spring and fall migrations (Ross et al.,
2001b). Summer resting areas have been consistently documented on the
Pascagoula River (Ross et al., 2001a and b). The Pascagoula River
Harbor is on the East Pascagoula River distributary, a small portion of
this overall unit, but consistently used for migration.
Unit 8 provides juvenile, subadult and adult feeding, resting, and
passage habitat for Gulf sturgeon from the Pascagoula and the Pearl
River subpopulations. The Mississippi Sound is separated from the Gulf
of Mexico by a chain of barrier islands, including Cat, Ship, Horn, and
Petit Bois Islands. Natural depths of 3.7 to 5.5 m (12 to 18 ft) are
found throughout the Sound and a channel 3.7 m (12 ft) deep has been
dredged where necessary from Mobile Bay to New Orleans (USDOC, 2002).
Incidental captures and recent studies confirm that both Pearl River
and Pascagoula River adult Gulf sturgeon winter in the Mississippi
Sound, particularly around barrier islands and barrier islands passes
(Reynolds, 1993; Ross et al., 2001a; and Rogillio et al., 2002). Gulf
sturgeon are frequently found at the mouths of the barrier island
passes (Ross et al., 2001a) adjacent to channels used by recreational
and commercial craft entering and exiting the Gulf of Mexico. The GIWW
is a small band traversing this unit from east to west.
Unit 9 includes Pensacola Bay and its adjacent main bays and coves.
These include Big Lagoon, Escambia Bay, East Bay, Blackwater Bay, Bayou
Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and Catfish Basin.
All other bays, bayous, creeks, and rivers are excluded at their
mouths. The Pensacola Bay system includes five interconnected bays,
including Escambia Bay, Pensacola Bay, Blackwater Bay, East Bay, and
the Santa Rosa Sound. The Escambia River and its distributaries (Little
White River, Dead River, and Simpson River) empty into Escambia Bay,
including Bass Hole Cove, Saultsmar Cove, and Macky Bay. The Yellow
River empties into Blackwater Bay. The entire system discharges into
the Gulf of Mexico, primarily through a narrow pass at the mouth of
Pensacola Bay. The major shipping channel in this unit is the GIWW and
extends to the Port of Pensacola and Pensacola Naval Air Station.
The Pensacola Bay system provides winter feeding and migration
habitat for
[[Page 13402]]
Gulf sturgeon from the Escambia River and Yellow River subpopulations.
Sturgeon movement through this area is generally along the shoreline
area of Pensacola Bay. Gulf sturgeon showed a preference for several
areas in the bay, including Redfish Point, Fort Pickens, and Escribano
Point, near Catfish Basin (FWS, 1998; and Craft et al., 2001). Sandy
shoal areas, located along the south and east side of Garcon Point,
south shore of East Bay (Redfish Point area) and near Fair Point,
appear to be commonly used, especially in the fall and early spring.
During midwinter, sturgeon are commonly found in deep holes located
north of the barrier island at Ft. Pickens, south of the Pensacola
Naval Air Station, and at the entrance of Pensacola Pass. The depth in
these areas ranges from 6 to 12.1 m (20 to 40 ft). Other areas where
tagged fish were frequently located include Escribano Point, near
Catfish Basin, and the mouth of the Yellow River. Previous incidental
captures of Gulf sturgeon have been recorded in Pensacola Bay, Big
Lagoon, and Bayou Grande (Reynolds, 1993; and Lorio, 2000).
In sum, the Services believe that a critical habitat designation
for the Gulf sturgeon would provide a relatively low level of
additional regulatory conservation benefit to the species.
(2) Benefits of Exclusion
A major economic impact identified in the draft economic analysis
was on dredging projects of the USACE. USACE plans the location and
timing of dredging projects to ensure that channel reliability is
always maintained. Frequency of dredging varies widely, from almost
annual maintenance dredging to once every ten or twenty years,
depending on the level of use of the waterway for shipping and the
natural rate of sediment deposition. The major navigation channels must
be maintained to Congressionally authorized depths and widths to allow
shippers to enter ports. Failure to maintain the navigation channels
accordingly greatly affects shippers who may be forced to use smaller
vessels, light load (i.e., remove shipped goods to reduce weight and
therefore the depth of the barge), use alternative modes of transport,
such as rail or truck transport, or travel on to another port. All of
these alternatives increase the cost of transporting goods. In extreme
cases, commercial facilities may close and economic activities may
transfer to other locations.
The major risks of dredging projects to sturgeon are entrainment in
dredges, prevention of migratory passage through channels and inlets
due to blockage by large dredges, elevated turbidity causing increased
siltation on feeding or spawning areas, and possible removal of food
prey. Numerous formal and informal consultations on dredging activities
are anticipated in the proposed critical habitat units over the next
ten years.
Potential project modifications specific to dredging and disposal
projects, and for which we have concerns regarding their potential
implications, include:
[sbull] Minimize extent of dredging activity. In past
consultations, FWS has requested that proposed dredging projects be
limited to proposed depths only. Less likely, USACE could avoid
dredging in deeper portions of the channel for riverine dredging
projects, limit dredging of navigation channels to the minimum
dimensions necessary, avoid performing advanced maintenance activities,
or use silt curtains to enclose dredging sites when dredging in shallow
water. For hydraulic dredging, USACE may raise the cutter head above
the bottom during pipeline clearing and keep it as close to the surface
as practicable while water is being pumped from the pipeline.
[sbull] Sequence dredging. For example, if a dredging project
includes both a river mouth and a channel into a bay, USACE may arrange
the project to dredge the estuary first and dredge the river second so
that areas more sensitive to turbidity and hypoxia are dredged during a
cooler time frame.
[sbull] Dredging windows. USACE has expressed concern about the
effect of dredging windows on its operations. In past informal
consultations, dredging windows have been recommended to avoid
entrainment in the dredge or the preclusion of movement past the dredge
during migratory periods, since avoiding work during times when
sturgeon are known to be in the direct vicinity of the project is the
most effective way to avoid harm to the species. If USACE cannot avoid
dredging within the time frames suggested in an informal consultation,
USACE will likely need to initiate a formal consultation with the
Services during which modifications to the project other than dredging
windows would be considered.
It is possible that critical habitat could influence the Services
to be more likely to impose one or more of these measures to prevent
habitat modification.
If dredging windows and other measures are required in
consultation, the present value of expected direct costs of
implementation of section 7 for these activities that may affect the
sturgeon or its habitat over the next ten years would exceed the
projected $22.7 million cost of consultations on operation and
maintenance of navigation projects set forth in the final economic
analysis. This section 4(b)(2) analysis also considered the possibility
that the greater costs projected in the draft economic analysis may be
incurred. Forecast costs are associated with expected administrative
requirements and project modifications that may be recommended by the
Services during the consultation process. To the extent that project
modifications due to a critical habitat designation may result in
delays or a reduction in channel capacity, the secondary economic
effects may be high.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
Based on the above considerations, and consistent with the
direction provided in section 4(b)(2) of the Act, we have determined
that the benefits of excluding major shipping channels as critical
habitat outweigh the benefits of including them as critical habitat for
the Gulf sturgeon. This conclusion is based on the following factors:
The benefits of designating critical habitat in the major shipping
channels of these units is low because the areal extent of the shipping
channels is a very small proportion of the entire unit. In addition the
frequently maintained portions of the major shipping channels 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. The benefits of excluding these areas may be high if critical
habitat designation were to increase the frequency of modifications to
dredging practices or result in delays in maintaining channel depth.
Therefore, the Services believe that the benefits of exclusion outweigh
the benefits of including these areas as critical habitat.
(4) Exclusions Within These Units Will Not Cause Extinction of the
Species
These exclusions will not cause the extinction of the Gulf
sturgeon. Although the shipping channels may provide food resources
needed in the winter months, other large areas of prey and corridors
for migration are available in the remainder of the units to prevent
the extinction of the species.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available, and
to consider the economic
[[Page 13403]]
and other relevant impacts of designating a particular area as critical
habitat. We may exclude areas from critical habitat upon a
determination that the benefits of such exclusions outweigh the
benefits of specifying such areas as critical habitat. We cannot
exclude such areas from critical habitat when such exclusion will
result in the extinction of the species.
Following the publication of the proposed critical habitat
designation, a draft economic analysis was conducted to estimate the
potential economic effect of the proposed designation. The draft
analysis was made publicly available for review on August 8, 2002. We
accepted comments on the draft analysis until October 7, 2002. Our
draft economic analysis evaluated potential future effects associated
with the listing of the Gulf sturgeon as a threatened species under the
Act, as well as any potential effect of the critical habitat
designation above and beyond those regulatory and economic impacts
associated with listing. The categories of potential costs considered
in the analysis included the costs associated with (1) conducting
section 7 consultations associated with the listing or with the
critical habitat, including incremental consultations, reinitiated
consultations, and technical assistance; (2) modifications to projects,
activities, or land uses resulting from the section 7 consultations;
(3) uncertainty and perceived impacts on markets resulting from the
designation of critical habitat and (4) potential offsetting beneficial
costs associated with critical habitat.
The majority of consultations resulting from the critical habitat
designation for Gulf sturgeon are likely to address dredging and
sediment disposal activities to support navigation, shoreline
stabilization, water quality standards, military actions, road and
bridge construction, oil and gas leases in Federal waters and
permitting of oil and gas pipelines. As described in the draft economic
analysis, all areas included in the designated critical habitat are
occupied, with the fish also occurring in areas not included in the
critical habitat designation.
Following the close of the comment period on the draft economic
analysis, a final revision was completed which incorporated public
comments on the draft analysis. Based on comments, the cost of
consultations was revised. Subsequently, the revised economic analysis
concluded that the designation may result in approximately $3,310,000
to $4,953,000 per year in potential economic impact due to the total
effects of critical habitat, including those effects resulting co-
extensively from listing the species. Given the uncertainty regarding
the implementation of project modifications for predicted projects
concerning dredging and disposal modifications, a probability of
adoption ratio was used in the final economic analysis based on the
rate that the Services recommended various modifications in past formal
and informal consultations where the proposed action would have
impacted the sturgeon as well as its habitat.
Only those areas essential to the conservation of the Gulf sturgeon
have been included in the critical habitat designation; the designation
does not encompass the entire area currently occupied or utilized by
the species, nor does it include any currently unoccupied areas. The
economic analysis documents that the costs of including any particular
unit range from $1,300 to $380,000 annually in administrative costs of
consultation over 10 years (the low value represents the lowest per
unit estimate of costs attributable solely to critical habitat
designation and the high value represents the highest per unit
estimates of costs attributable co-extensively with listing). Total co-
extensive administrative cost across all units over 10 years range
between $705,600 and $2,348,600 per year. Project modification costs
for this analysis could not be attributed to any one unit, given the
nature of the projects. However, total co-extensive costs of project
modifications across all units over 10 years are estimated to be
$2,604,000 annually; if the approximate one-to-one ratio of total
administrative costs to total project modification costs reflects the
per unit ratio of these costs, then the highest upper-bound per unit
estimate of critical habitat designation would be approximately
$700,000 per year over 10 years. Sixty-five percent of the total upper-
bound costs estimated to be attributable to critical habitat
designation are expected to consist of federal agency costs.
Required Determinations
Regulatory Planning and Review
As required by Executive Order 12866, we have provided a copy of
the rule, which describes the need for this action and how the
designation meets that need, and the economic analysis, which assesses
the costs and benefits of this critical habitat designation, to the
Office of Management and Budget (OMB) for review. The OMB determined
that this rule may raise novel legal or policy issues and found it to
be a significant rule.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act (RFA) to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities. SBREFA also amended the RFA to
require a certification statement. We are hereby certifying that this
rule designating critical habitat for the Gulf sturgeon will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale for this certification.
Small entities include small organizations, such as independent
non-profit organizations, small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential impacts to
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule would affect a substantial number of small
entities, we consider the number of small
[[Page 13404]]
entities affected within particular types of economic activities (e.g.,
housing development, grazing, oil and gas production, timber
harvesting, etc.). In estimating the numbers of small entities
potentially affected, we also consider whether their activities have
any Federal involvement; some kinds of activities are unlikely to have
any Federal involvement and so will not be affected by critical habitat
designation.
The vast majority of the designated critical habitat for the Gulf
sturgeon, with few exceptions, is public land involving river, stream,
estuary, or marine habitat. Activities with Federal involvement that
may require consultation regarding Gulf sturgeon and its critical
habitat include: activities regulated under the Clean Water Act, the
Rivers and Harbors Act of 1899, and/or various Coast Guard authorities.
Small entity economic activities that may require Federal authorization
or permits include energy-related activities such as pipelines,
harbors, and platforms; residential development including docks, piers,
bridges, and shoreline protection; boating-related projects of small
communities; private port operation including maintenance dredging and
docks; small water supply or hydropower projects; and high speed marine
events.
As required under section 4(b)(2) of the Act, we conducted an
analysis of the potential economic impacts of this critical habitat
designation. In the draft analysis, we found that the future section 7
consultations resulting from the listing of the Gulf sturgeon and the
proposed designation of critical habitat could potentially impose total
economic costs for consultations and modifications to projects to range
between approximately $43.4 million to $57.2 million over the next 10-
year period. Public comment on the draft economic analysis led to a
revision of third party cost estimates that would result from section 7
consultations. The changes in cost estimates are discussed and
reflected in the revised final Economic Analysis of Critical Habitat
Designation for the Gulf Sturgeon (Industrial Economics, Inc. 2003),
where we found that the future section 7 consultations resulting from
the listing of the Gulf sturgeon and the proposed critical habitat
could potentially impose total economic costs for consultations and
modifications to projects in the range of between $33.1 million to
$49.5 million over the next 10-year period.
In considering whether this critical habitat designation would have
a significant economic impact on a substantial number of small
entities, we examined the total estimated section 7 costs calculated in
earlier sections of this report, including those impacts that may be
``attributable co-extensively''with the listing of the species. This
results in a conservative estimate (i.e., more likely to overstate
impacts than understate them), because it utilizes the upper bound
impact estimate from the earlier analysis. Using this approach, the
economic analysis estimated that fewer than 6 small entities per year,
would experience significant economic impacts. We do not believe this
constitutes a substantial number of small entities. Therefore, the
Services are certifying that the designation of critical habitat for
the Gulf sturgeon will not have a significant economic impact on a
substantial number of small entities. Accordingly, a regulatory
flexibility analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
OMB's Office of Information and Regulatory Affairs has determined
that this rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. In the draft economic
analysis and the final economic analysis, we determined that
designation of critical habitat would not cause (a) any annual effect
on the economy of $100 million or more, (b) any increases in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions, or (c) any significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises. Refer to the final economic analysis
(Industrial Economics, Inc., 2003) for a complete discussion of the
effects of this determination.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211, which
applies to ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' In order to ensure that Federal
agencies ``appropriately weigh and consider the effects of the Federal
government's regulations on the supply, distribution, and use of
energy,'' the President has directed agencies to prepare and submit to
the OMB's Office of Information and Regulatory Affairs a ``Statement of
Energy Effects'' for their ``significant energy actions.'' The OMB has
provided guidance for implementing this Executive Order that outlines
nine outcomes that may constitute ``a significant adverse effect'' when
compared with the regulatory action under consideration:
(1) Reductions in crude oil supply in excess of 10,000 barrels per
day;
(2) Reductions in fuel production in excess of 4,000 barrels per
day;
(3) Reductions in coal production in excess of 5 million tons per
year;
(4) Reductions in natural gas production in excess of 25 million
mcf;
(5) Reductions in electricity production in excess of 1 billion
kilowatts per year or in excess of 500 megawatts of installed capacity;
(6) Increases in energy use required by the regulatory action that
exceed the thresholds above;
(7) Increases in the cost of energy production in excess of one
percent;
(8) Increases in the cost of energy distribution in excess of one
percent; or
(9) Other similarly adverse outcomes.
There is one hydropower project located upstream of critical
habitat Unit 6. Accordingly, we assessed the potential for a
significant effect to energy supply, distribution, or use as relevant
to this analysis in the final addendum to the economic analysis,
reductions in electricity production in excess of 1 billion kilowatts
per year or in excess of 500 megawatts of installed capacity.
The Gulf region derives a very small portion of its overall power
supply from hydropower. Electricity supply and capacity data are
collected and reported by the North American Reliability Council
(NERC). Of its ten regional councils, the Southeastern Electrical
Reliability Council (SERC) is the most contiguous with areas
potentially affected by critical habitat for the Gulf sturgeon. The
geographic area covered by the Southern section of SERC includes most
of Alabama and Georgia, southeastern Mississippi, and the Florida
panhandle. Another section of SERC, Entergy, covers southwestern
Mississippi, the Gulf coast Louisiana, and portions of other States.
Peninsular Florida is not covered by SERC, but by the Florida
Reliability Coordinating Council (FRCC). Peak summer demand reached
43,736 megawatts for the Southern region and 25,747 megawatts for the
Entergy region in 2001.
Only one dam located upstream and adjacent to the critical habitat
Unit 6 supplies hydropower. Located near the Florida-Georgia border in
Chattahoochee, Florida, the Jim Woodruff Dam is one of 23 hydropower
sites operated by the USACE that generate power. The electric power and
energy generated at Jim Woodruff Dam is marketed by the Federal
Southeastern Power Administration for the wholesale energy market. Of
the total installed
[[Page 13405]]
capacity of 3,092 megawatts, the Jim Woodruff Dam represented 30
megawatts, or less than one percent of Southeastern Power
Administration market capacity during fiscal year 1999. In terms of
actual volume marketed, the facility provided 205 gigawatt hours during
fiscal year 1999, or 3.6 percent of the Southeastern Power
Administration total. Based on data from 1995, USACE estimated total
electricity capacity in the Apalachicola-Chattahoochee-Flint (ACF)
Basin to be 6,657 megawatts. Of this total, 652 megawatts represent
hydropower capacity. Compared to 2001 Southern region peak summer
demand, hydropower units located in the ACF Basin contribute a small
percentage of total regional electricity demand.
In 2001, Florida had a summer peak demand of 38,285 megawatts out
of a total summer peak capacity of 42,609 megawatts. Coal, natural gas,
oil, and nuclear sources fuel most of the State's energy needs.
Electricity derived from hydropower from the Jim Woodruff Dam can
account for only a small fraction of Florida's statewide capacity.
The maximum installed capacity for Jim Woodruff Dam is 30 MW
(30,000 KW). Therefore, even when viewed in the context of a worst-case
scenario, in which implementation of section 7 of the Act results in
significant operational changes, however unlikely, to this hydropower
project, the total capacity is 30 MW (30,000 KW) of hydroelectricity,
so the impact on these hydropower facilities could not exceed the 500
MW (500,000 KW) threshold.
Therefore, even in the worst case scenario, implementation of
section 7 for the Gulf sturgeon will not result in a ``reduction in
electricity production in excess of 500 megawatts of installed
capacity'' or an ``increase in the cost of energy production in excess
of one percent.'' Consequently, this rule will not have a ``significant
adverse effect'' on the supply, distribution, or use of energy, and no
``Statement of Energy Effects'' is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(a) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. Small
governments will be affected only to the extent that Federal agencies
funding, permitting, or authorizing other activities must ensure that
their actions will not adversely affect the critical habitat.
(b) For the reasons described in the economic analysis and this
final rule, this rule will not produce a Federal mandate on State,
local, or tribal governments of $100 million or greater in any year.
The designation of critical habitat imposes no obligations on State or
local governments. Therefore, it is not a ``significant regulatory
action''' under the Unfunded Mandates Reform Act.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), this rule does not have significant takings implications. A
takings implication assessment is not required. As discussed above, the
designation of critical habitat affects only Federal agency actions.
Since the critical habitat includes only aquatic areas that are
generally held in public trust, we believe that little or no private
property is included in the designation. Based on current public
knowledge of the species protection and the prohibition against take of
the species both within and outside of the designated areas, we do not
anticipate that property values will be affected by the critical
habitat designation. Additionally, critical habitat designation does
not preclude development of habitat conservation plans and issuance of
incidental take permits.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policies, we requested information from, and coordinated
development of both the listing and the proposal to designate critical
habitat with, appropriate State resource agencies in Louisiana,
Mississippi, Alabama, and Florida. The designation of critical habitat
for the Gulf sturgeon imposes no restrictions in addition to those
currently in place, and, therefore, has little additional impact on
State and local governments and their activities. The designation may
have some benefit to these governments in that the areas essential to
the conservation of the species are more clearly defined, and the
primary constituent elements of the habitat necessary to the
conservation of the species are specifically identified. While this
definition and identification does not alter where and what federally
sponsored activities may occur, it may assist these local governments
in long-range planning, rather than waiting for case-by-case section 7
consultations to occur.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor of the Department of the Interior has determined that the
rule does not unduly burden the judicial system and meets the
requirements of sections 3(a) and 3(b)(2) of the Order. We are
proposing to designate critical habitat in accordance with the
provisions of the Endangered Species Act. The rule uses standard
property descriptions and identifies the primary constituent elements
within the designated areas to assist the public in understanding the
habitat needs that are essential for the conservation of the Gulf
sturgeon. We have made every effort to ensure that the final
determination contains no drafting errors, provides clear standards,
simplifies procedures, reduces burdens, and is clearly written, such
that the risk of litigation is minimized.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain new or revised information collection
for which Office of Management and Budget approval is required under
the Paperwork Reduction Act. Information collections associated with
permits under the Act are covered by an existing OMB approval, and are
assigned clearance No. 1018-0094, with an expiration date of July 31,
2004. Detailed information for Endangered Species Act documentation
appears at 50 CFR 17. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act
The FWS has determined that it does not need to prepare an
Environmental Assessment or an Environmental Impact Statement as
defined by the National Environmental Policy Act of 1969 in connection
with regulations adopted under section 4(a) of the Act. The FWS
published a notice outlining its reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244).
The proposed rule stated that NMFS had determined that this action
is categorically excluded from NEPA requirements. However, NMFS had not
at that time finalized its NEPA analysis for this rule. In response to
comments received on the proposed rule (see comment 16), and based on
additional research and deliberation, NMFS has concluded that the FWS
position is
[[Page 13406]]
correct, and that NEPA does not apply to designation of critical
habitat under the Act.
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no tribal lands essential for the conservation of the Gulf
sturgeon. Therefore, designation of critical habitat for the Gulf
sturgeon has not been designated on Tribal lands.
References Cited
A list of references is available upon request (see ADDRESSES.)
Authors
The primary authors of this document are Patty Kelly, FWS, (850/
769-0552, extension 228); and Stephania Bolden and Jennifer Lee, NMFS,
(727/570-5312) (see ADDRESSES section).
List of Subjects
50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
50 CFR Part 226
Endangered and threatened species.
Regulation Promulgation
For the reasons outlined in the preamble, we amend part 17,
subchapter B of chapter I, and part 226, subchapter C of chapter II,
title 50 of the Code of Federal Regulations, as follows:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for the ``Sturgeon, Gulf''
under ``FISHES'' in the List of Endangered and Threatened Wildlife to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic Range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
FISHES:
* * * * * * *
Sturgeon, Gulf................... Acipenser oxyrinchus U.S.A. (AL, FL, GA, Entire............. T 444 17.95(e), 17.44(v)
(=oxyrhynchus) LA, MS). 226.214
desotoi.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.95(e) by adding critical habitat for the Gulf
sturgeon (Acipenser oxyrinchus desotoi), in the same alphabetical order
as the species occurs in Sec. 17.11(h) to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes. * * *
Gulf Sturgeon (Acipenser oxyrinchus desotoi)
(1) Critical habitat units are depicted for Louisiana, Mississippi,
Alabama, and Florida on the maps below.
(2) The primary constituent elements essential for the conservation
of Gulf sturgeon are those habitat components that support feeding,
resting, and sheltering, reproduction, migration, and physical features
necessary for maintaining the natural processes that support these
habitat components. The primary constituent elements include:
(i) Abundant prey items within riverine habitats for larval and
juvenile life stages, and within estuarine and marine habitats and
substrates for juvenile, subadult, and adult life stages;
(ii) Riverine spawning sites with substrates suitable for egg
deposition and development, such as limestone outcrops and cut
limestone banks, bedrock, large gravel or cobble beds, marl, soapstone
or hard clay;
(iii) Riverine aggregation areas, also referred to as resting,
holding, and staging areas, used by adult, subadult, and/or juveniles,
generally, but not always, located in holes below normal riverbed
depths, believed necessary for minimizing energy expenditures during
fresh water residency and possibly for osmoregulatory functions;
(iv) A flow regime (i.e,. the magnitude, frequency, duration,
seasonality, and rate-of-change of fresh water discharge over time)
necessary for normal behavior, growth, and survival of all life stages
in the riverine environment, including migration, breeding site
selection, courtship, egg fertilization, resting, and staging; and
necessary for maintaining spawning sites in suitable condition for egg
attachment, egg sheltering, resting, and larvae staging;
(v) Water quality, including temperature, salinity, pH, hardness,
turbidity, oxygen content, and other chemical characteristics,
necessary for normal behavior, growth, and viability of all life
stages;
(vi) Sediment quality, including texture and other chemical
characteristics, necessary for normal behavior, growth, and viability
of all life stages; and
(vii) Safe and unobstructed migratory pathways necessary for
passage within and between riverine, estuarine, and marine habitats
(e.g. a river unobstructed by any permanent structure, or a dammed
river that still allows for passage).
(3) Gulf sturgeon is under the joint jurisdiction of the U.S. Fish
and Wildlife Service (FWS) and National Marine Fisheries Service
(NMFS). The FWS will maintain primary responsibility for recovery
actions and NMFS will assist in and continue to fund recovery actions
pertaining to estuarine and marine habitats. In riverine units, the FWS
will be
[[Page 13407]]
responsible for all consultations regarding Gulf sturgeon and critical
habitat. In estuarine units, we will divide responsibility based on the
action agency involved. The FWS will consult with the Department of
Transportation, the Environmental Protection Agency, the U.S. Coast
Guard, and the Federal Emergency Management Agency. NMFS will consult
with the Department of Defense, U.S. Army Corps of Engineers, Minerals
Management Service and any other Federal agencies not mentioned here
explicitly. In marine units, NMFS will be responsible for all
consultations regarding Gulf sturgeon and critical habitat. Any Federal
projects that extend into the jurisdiction of both the Services will be
consulted on by the FWS with internal coordination with NMFS. Each
agency will conduct its own intra-agency consultations as necessary.
(4) The textual unit descriptions below are the definitive source
for determining the critical habitat boundaries. General location maps
by unit are provided at the end of each unit description and are
provided for general guidance purposes only, and not as a definitive
source for determining critical habitat boundaries.
(5) Unit 1: Pearl River System in St. Tammany and Washington
Parishes in Louisiana and Walthall, Hancock, Pearl River, Marion,
Lawrence, Simpson, Copiah, Hinds, Rankin, and Pike Counties in
Mississippi.
(i) Unit 1 includes the Pearl River main stem from the spillway of
the Ross Barnett Dam, Hinds and Rankin Counties, Mississippi,
downstream to where the main stem river drainage discharges at its
mouth joining Lake Borgne, Little Lake, or The Rigolets in Hancock
County, Mississippi, and St. Tammany Parish, Louisiana. It includes the
main stems of the East Pearl River, West Pearl River, West Middle
River, Holmes Bayou, Wilson Slough, downstream to where these main stem
river drainages discharge at the mouths of Lake Borgne, Little Lake, or
The Rigolets. Unit 1 also includes the Bogue Chitto River main stem, a
tributary of the Pearl River, from Mississippi State Highway 570, Pike
County, Mississippi, downstream to its confluence with the West Pearl
River, St. Tammany Parish, Louisiana. The lateral extent of Unit 1 is
the ordinary high water line on each bank of the associated rivers and
shorelines.
(ii) Maps of Unit 1 follow:
BILLING CODE 3510-22-P
[[Page 13408]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.000
[[Page 13409]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.001
[[Page 13410]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.002
BILLING CODE 3510-22-C
(6) Unit 2: Pascagoula River System in Forrest, Perry, Greene,
George, Jackson, Clarke, Jones, and Wayne Counties, Mississippi.
(i) Unit 2 includes all of the Pascagoula River main stem and its
distributaries, portions of the Bouie, Leaf, and Chickasawhay
tributaries, and all of the Big Black Creek tributary. It includes the
Bouie River main stem beginning on the southern-most road crossing of
Interstate 59, Forrest County, Mississippi, downstream to its
confluence with the Leaf River, Forrest County, Mississippi. The Leaf
River main stem beginning from Mississippi State Highway 588, Jones
County, Mississippi, downstream to its confluence with the Chickasawhay
River, George County, Mississippi is included. The main stem of the
Chickasawhay River from the mouth of Oaky Creek, Clarke County,
Mississippi, downstream to its confluence with the Leaf River, George
County, Mississippi is included. Unit 2 also includes Big Black Creek
main stem from its confluence with Black and Red Creeks, Jackson
County, Mississippi, to its confluence with the Pascagoula River,
Jackson County, Mississippi. All of the main stem of the Pascagoula
River from its confluence with the Leaf and Chickasawhay Rivers, George
County, Mississippi, to the discharge of the East and West Pascagoula
Rivers into Pascagoula Bay, Jackson County, Mississippi, is included.
The lateral extent of Unit 2 is the ordinary high water line on each
bank of the associated rivers and shorelines.
(ii) Major shipping channels in this unit are excluded under
section 4(b)(2) of the Act.
(iii) Maps of Unit 2 follow:
BILLING CODE 3510-22-P
[[Page 13411]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.003
[[Page 13412]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.004
[[Page 13413]]
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[[Page 13414]]
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[[Page 13415]]
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[[Page 13416]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.008
BILLING CODE 3510-22-C
[[Page 13417]]
(7) Unit 3: Escambia River System in Santa Rosa and Escambia
Counties, Florida and Escambia, Conecuh, and Covington Counties,
Alabama.
(i) Unit 3 includes the Conecuh River main stem beginning just
downstream of the spillway of Point A Dam, Covington County, Alabama,
downstream to the Florida State line, where its name changes to the
Escambia River, Escambia County, Alabama, and Escambia and Santa Rosa
Counties, Florida. It includes the entire main stem of the Escambia
River downstream to its discharge into Escambia Bay and Macky Bay,
Escambia and Santa Rosa Counties, Florida. All of the distributaries of
the Escambia River including White River, Little White River, Simpson
River, and Dead River, Santa Rosa County, Florida are included. The
Sepulga River main stem from Alabama County Road 42, Conecuh and
Escambia Counties, Alabama, downstream to its confluence with the
Conecuh River, Escambia County, Alabama, is also included. The lateral
extent of Unit 3 is the ordinary high water line on each bank of the
associated lakes, rivers, and shorelines.
(ii) Maps of Unit 3 follow:
BILLING CODE 3510-22-P
[[Page 13418]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.009
[[Continued on page 13419]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 13419-13468]] Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Gulf Sturgeon
[[Continued from page 13418]]
[[Page 13419]]
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[[Page 13420]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.011
BILLING CODE 3510-22-C
(8) Unit 4: Yellow River System in Santa Rosa and Okaloosa
Counties, Florida and Covington County, Alabama.
(i) Unit 4 includes the Yellow River main stem from Alabama State
Highway 55, Covington County, Alabama, downstream to its discharge at
Blackwater Bay, Santa Rosa County, Florida. All Yellow River
distributaries (including Weaver River and Skim Lake) discharging into
Blackwater Bay are included. The Shoal River main stem, a Yellow River
tributary, from Florida Highway 85, Okaloosa County, Florida, to its
confluence with the Yellow River, is included. The Blackwater River
from its confluence with Big Coldwater Creek, Santa Rosa County,
Florida, downstream to its discharge into Blackwater Bay is included.
Wright Basin and Cooper Basin, Santa Rosa County, on the Blackwater
River are included. The lateral extent of Unit 4 is the ordinary high
water line on each bank of the associated lakes, rivers, and
shorelines.
(ii) Maps of Unit 4 follow:
BILLING CODE 3510-22-P
[[Page 13421]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.012
[[Page 13422]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.013
[[Page 13423]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.014
[[Page 13424]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.015
[[Page 13425]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.016
BILLING CODE 3510-22-C
[[Page 13426]]
(9) Unit 5: Choctawhatchee River System in Holmes, Washington, and
Walton Counties, Florida and Dale, Coffee, Geneva, and Houston
Counties, Alabama.
(i) Unit 5 includes the Choctawhatchee River main stem from its
confluence with the west and east fork of the Choctawhatchee River,
Dale County, Alabama, downstream to its discharge at Choctawhatchee
Bay, Walton County, Florida. The distributaries discharging into
Choctawhatchee Bay known as Mitchell River, Indian River, Cypress
River, and Bells Leg are included. The Boynton Cutoff, Washington
County, Florida, which joins the Choctawhatchee River main stem, and
Holmes Creek, Washington County, Florida, are included. The section of
Holmes Creek from Boynton Cutoff to the mouth of Holmes Creek,
Washington County, Florida, is included. The Pea River main stem, a
Choctawhatchee River tributary, from the Elba Dam, Coffee County,
Alabama, to its confluence with the Choctawhatchee River, Geneva
County, Alabama, is included. The lateral extent of Unit 5 is the
ordinary high water line on each bank of the associated rivers and
shorelines.
(ii) Maps of Unit 5 follow:
BILLING CODE 3510-22-P
[[Page 13427]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.017
[[Page 13428]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.018
[[Page 13429]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.019
[[Page 13430]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.020
BILLING CODE 3510-22-C
[[Page 13431]]
(10) Unit 6: Apalachicola River System in Franklin, Gulf, Liberty,
Calhoun, Jackson, and Gadsen Counties, Florida.
(i) Unit 6 includes the Apalachicola River mainstem, beginning from
the Jim Woodruff Lock and Dam, Gadsden and Jackson Counties, Florida,
downstream to its discharge at East Bay or Apalachicola Bay, Franklin
County, Florida. All Apalachicola River distributaries, including the
East River, Little St. Marks River, St. Marks River, Franklin County,
Florida, to their discharge into East Bay and/or Apalachicola Bay are
included. The entire main stem of the Brothers River, Franklin and Gulf
Counties, Florida, a tributary of the Apalachicola River, is included.
The lateral extent of Unit 6 is the ordinary high water line on each
bank of the associated rivers and shorelines.
(ii) Maps of Unit 6 follow:
BILLING CODE 3510-22-P
[[Page 13432]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.021
[[Page 13433]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.022
BILLING CODE 3510-22-C
[[Page 13434]]
(11) Unit 7: Suwannee River System in Hamilton, Suwannee, Madison,
Lafayette, Gilchrist, Levy, Dixie, and Columbia Counties, Florida.
(i) Unit 7 includes the Suwannee River main stem, beginning from
its confluence with Long Branch Creek, Hamilton County, Florida,
downstream to the mouth of the Suwannee River. It includes all the
Suwannee River distributaries, including the East Pass, West Pass,
Wadley Pass, and Alligator Pass, Dixie and Levy Counties, Florida, to
their discharge into the Suwannee Sound or the Gulf of Mexico. The
Withlacoochee River main stem from Florida State Road 6, Madison and
Hamilton Counties, Florida, to its confluence with the Suwannee River
is included. The lateral extent of Unit 7 is the ordinary high water
line on each bank of the associated rivers and shorelines.
(ii) Maps of Unit 7 follow:
BILLING CODE 3510-22-P
[[Page 13435]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.023
[[Page 13436]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.024
[[Page 13437]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.025
[[Page 13438]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.026
BILLING CODE 3510-22-C
(12) Unit 8: Lake Pontchartrain, Lake St. Catherine, The Rigolets,
Little Lake, Lake Borgne, and Mississippi Sound in Jefferson, Orleans,
St. Tammany, and St. Bernard Parish, Louisiana, Hancock, Jackson, and
Harrison Counties in Mississippi, and in Mobile County, Alabama.
(i) Unit 8 encompasses Lake Pontchartrain east of the Lake
Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St.
Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound.
Critical habitat follows the shorelines around the perimeters of each
included lake. The Mississippi Sound includes adjacent open bays
including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy Bay,
and barrier island passes, including Ship Island Pass, Dog Keys Pass,
Horn Island Pass, and Petit Bois Pass. The northern boundary of the
Mississippi Sound is the shorelines of the mainland between Heron Bay
Point, Mississippi and Point aux Pins, Alabama. Critical habitat
excludes St. Louis Bay, north of the railroad bridge across its mouth;
Biloxi Bay, north of the U.S. Highway 90 bridge; and Back Bay of
Biloxi. The southern boundary follows along the broken shoreline of
Lake Borgne created by low swampy islands from Malheureux Point to Isle
au Pitre. From the northeast point of Isle au Pitre, the boundary
continues in a straight north-northeast line to the point 1 nautical
mile (nm) (1.9 kilometers (km)) seaward of the western most extremity
of Cat Island (30[deg]13'N, 89[deg]10'W). The southern boundary
continues 1 nm (1.9 km) offshore of the barrier islands and offshore of
the 72 COLREGS lines at barrier island passes (defined at 33 CFR 80.815
(c), (d) and (e)) to the eastern boundary. Between Cat Island and Ship
Island there is no 72 COLREGS line. We therefore, have defined that
section of the southern boundary as 1 nm (1.9 km) offshore of a
straight line drawn from the southern tip of Cat Island to the western
tip of Ship Island. The eastern boundary is the line of longitude
88[deg]18.8'W from its intersection with the shore (Point aux Pins) to
its intersection with the southern boundary. The lateral extent of Unit
8 is the mean (average) high water (MHW) line on each shoreline of the
included water bodies or the entrance to rivers, bayous, and creeks.
(ii) Major shipping channels in this unit, as identified on
standard navigation charts and marked by buoys, are excluded under
section 4(b)(2) of the Act.
(iii) Maps of Unit 8 follow:
BILLING CODE 3510-22-P
[[Page 13439]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.027
[[Page 13440]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.028
[[Page 13441]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.029
[[Page 13442]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.030
BILLING CODE 3510-22-C
(13) Unit 9: Pensacola Bay System in Escambia and Santa Rosa
Counties, Florida.
(i) Unit 9 includes Pensacola Bay and its adjacent main bays and
coves. These include Big Lagoon, Escambia Bay, East Bay, Blackwater
Bay, Bayou Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and
Catfish Basin. All other bays, bayous, creeks, and rivers are excluded
at their mouths. The western boundary is the Florida State Highway 292
Bridge crossing Big Lagoon to Perdido Key. The southern boundary is the
72 COLREGS line between Perdido Key and Santa Rosa Island (defined at
33 CFR 80.810 (g)). The eastern boundary is the Florida State Highway
399 Bridge at Gulf Breeze, Florida. The lateral extent of Unit 9 is the
MHW line on each included bay's shoreline.
(ii) Major shipping channels in this unit, as identified on
standard navigation charts and marked by buoys, are excluded under
section 4(b)(2) of the Act.
(iii) A Map of Unit 9 follows:
BILLING CODE 3510-22-P
[[Page 13443]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.031
BILLING CODE 3510-22-C
[[Page 13444]]
(14) Unit 10: Santa Rosa Sound in Escambia, Santa Rosa, and
Okaloosa Counties, Florida.
(i) Unit 10 includes the Santa Rosa Sound, bounded on the west by
the Florida State Highway 399 bridge in Gulf Breeze, Florida. The
eastern boundary is the U.S. Highway 98 bridge in Fort Walton Beach,
Florida. The northern and southern boundaries of Unit 10 are formed by
the shorelines to the MHW line or by the entrance to rivers, bayous,
and creeks.
(ii) A Map of Unit 10 follows:
BILLING CODE 3510-22-P
[[Page 13445]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.032
BILLING CODE 3510-22-C
[[Page 13446]]
(15) Unit 11: Florida Nearshore Gulf of Mexico Unit in Escambia,
Santa Rosa, Okaloosa, Walton, Bay, and Gulf Counties in Florida.
(i) Unit 11 includes a portion of the Gulf of Mexico as defined by
the following boundaries. The western boundary is the line of longitude
87[deg]20.0'W (approximately 1 nm (1.9 km) west of Pensacola Pass) from
its intersection with the shore to its intersection with the southern
boundary. The northern boundary is the MHW of the mainland shoreline
and the 72 COLREGS lines at passes as defined at 30 CFR 80.810 (a-g).
The southern boundary is 1 nm (1.9 km) offshore of the northern
boundary. The eastern boundary is the line of longitude 85[deg]17.0'W
from its intersection with the shore (near Money Bayou between Cape San
Blas and Indian Peninsula) to its intersection with the southern
boundary.
(ii) A Map of Unit 11 follows:
BILLING CODE 3510-22-P
[[Page 13447]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.033
BILLING CODE 3510-22-C
[[Page 13448]]
(16) Unit 12: Choctawhatchee Bay in Okaloosa and Walton Counties,
Florida.
(i) Unit 12 includes the main body of Choctawhatchee Bay, Hogtown
Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous,
creeks, rivers are excluded at their mouths/entrances. The western
boundary is the U.S. Highway 98 bridge at Fort Walton Beach, Florida.
The southern boundary is the 72 COLREGS line across East (Destin) Pass
as defined at 33 CFR 80.810 (f). The lateral extent of Unit 12 is the
MHW line on each shoreline of the included water bodies.
(ii) A Map of Unit 12 follows:
[[Page 13449]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.034
BILLING CODE 3510-22-P
(17) Unit 13: Apalachicola Bay in Gulf and Franklin County,
Florida.
(i) Unit 13 includes the main body of Apalachicola Bay and its
adjacent
[[Page 13450]]
sounds, bays, and the nearshore waters of the Gulf of Mexico. These
consist of St. Vincent Sound, including Indian Lagoon; Apalachicola Bay
including Horseshoe Cove and All Tides Cove; East Bay including Little
Bay and Big Bay; and St George Sound, including Rattlesnake Cove and
East Cove. Barrier Island passes (Indian Pass, West Pass, and East
Pass) are also included. Sike's cut is excluded from the lighted buoys
on the Gulf of Mexico side to the day boards on the bay side. The
southern boundary includes water extending into the Gulf of Mexico 1 nm
(1.9 km) from the MHW line of the barrier islands and from 72 COLREGS
lines between the barrier islands (defined at 33 CFR 80.805 (e)-(h)).
The western boundary is the line of longitude 85[deg]17.0'W from its
intersection with the shore (near Money Bayou between Cape San Blas and
Indian Peninsula) to its intersection with the southern boundary. The
eastern boundary is formed by a straight line drawn from the shoreline
of Lanark Village at 29[deg]53.1'N, 84[deg]35.0'W to a point that is 1
nm (1.9 km) offshore from the northeastern extremity of Dog Island at
29[deg]49.6'N, 84[deg]33.2'W. The lateral extent of Unit 13 is the MHW
line on each shoreline of the included water bodies or the entrance of
excluded rivers, bayous, and creeks.
(ii) A Map of Unit 13 follows:
BILLING CODE 3510-22-P
[[Page 13451]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.035
BILLING CODE 3510-22-C
[[Page 13452]]
(18) Unit 14: Suwannee Sound in Dixie and Levy Counties, Florida.
(i) Unit 14 includes Suwannee Sound and a portion of adjacent Gulf
of Mexico waters extending 9 nm from shore (16.7 km) out to the State
territorial water boundary. Its northern boundary is formed by a
straight line from the northern tip of Big Pine Island (at
approximately 29[deg]23'N, 83[deg]12'W) to the Federal-State boundary
at 29[deg]17'N, 83[deg]21'W. The southern boundary is formed by a
straight line from the southern tip of Richards Island (at
approximately 83[deg]04'W, 29[deg]11'N) to the Federal-State boundary
at 83[deg]15'W, 29[deg]04'N. The lateral extent of Unit 14 is the MHW
line along the shorelines and the mouths of the Suwannee River (East
and West Pass), its distributaries, and other rivers, creeks, or water
bodies.
(ii) A Map of Unit 14 follows:
BILLING CODE 3510-22-P
[[Page 13453]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.036
BILLING CODE 3510-22-C
(19)(i) The river reaches within Units 1 to 7 as critical habitat
lie within the ordinary high water line. As defined in 33 CFR 32.911,
the ordinary high water
[[Page 13454]]
line on non-tidal rivers is the line on the shore established by the
fluctuations of water and indicated by physical characteristics such as
a clear, natural line impressed on the bank; shelving; changes in the
character of soil; destruction of terrestrial vegetation; the presence
of litter and debris; or other appropriate means that consider the
characteristics of the surrounding areas.
(ii) The downstream limit of the riverine units is the mouth of
each river. The mouth is defined as rkm 0 (rmi 0). Although the
interface of fresh and saltwater, referred to as the saltwater wedge,
occurs within the lower-most reach of a river, for ease in delineating
critical habitat units, we are defining the boundary between the
riverine and estuarine units as rkm 0 (rmi 0).
(iii) Regulatory jurisdiction in coastal areas extends to the line
on the shore reached by the plane of the mean (average) high water
(MHW) (33 CFR 329.12(a)(2)). All bays and estuaries within Units 8 to
14 therefore, lie below the MHW lines. Where precise determination of
the actual location becomes necessary, it must be established by survey
with reference to the available tidal datum, preferably averaged over a
period of 18.6 years. Less precise methods, such as observation of the
``apparent shoreline'' which is determined by reference to physical
markings, lines of vegetation, may be used only where an estimate is
needed of the line reached by the mean high water.
(iv) The term 72 COLREGS is defined as demarcation lines which
delineate those waters upon which mariners shall comply with the
International Regulations for Preventing Collisions at Sea, 1972 and
those waters upon which mariners shall comply with the Inland
Navigation Rules (33 CFR 80.01). The waters inside of these lines are
Inland Rules waters and the waters outside the lines are COLREGS
waters. These lines are defined in 33 CFR 80, and have been used for
identification purposes to delineate boundary lines of the estuarine
and marine habitat Units 8, 9, 11, and 12.
(20) Critical habitat does not include existing developed sites
such as dams, piers, marinas, bridges, boat ramps, exposed oil and gas
pipelines, oil rigs, and similar structures or designated public
swimming areas.
* * * * *
PART 226--[AMENDED]
1. The authority citation for 50 CFR part 226 continues to read as
follows:
Authority: 16 U.S.C. 1533.
2. Section 226.214 is added to read as follows:
Sec. 226.214 Critical habitat for Gulf sturgeon.
Gulf sturgeon is under the joint jurisdiction of the U.S. Fish and
Wildlife Service (FWS) and National Marine Fisheries Service (NMFS).
The FWS will maintain primary responsibility for recovery actions and
NMFS will assist in and continue to fund recovery actions pertaining to
estuarine and marine habitats. In riverine units, the FWS will be
responsible for all consultations regarding Gulf sturgeon and critical
habitat. In estuarine units, we will divide responsibility based on the
action agency involved. The FWS will consult with the Department of
Transportation, the Environmental Protection Agency, the U.S. Coast
Guard, and the Federal Emergency Management Agency. NMFS will consult
with the Department of Defense, U.S. Army Corps of Engineers, Minerals
Management Service and any other Federal agencies not mentioned here
explicitly. In marine units, NMFS will be responsible for all
consultations regarding Gulf sturgeon and critical habitat. Any Federal
projects that extend into the jurisdiction of both the Services will be
consulted on by the FWS with internal coordination with NMFS. Each
agency will conduct its own intra-agency consultations as necessary.
The primary constituent elements essential for the conservation of
Gulf sturgeon are those habitat components that support feeding,
resting, and sheltering, reproduction, migration, and physical features
necessary for maintaining the natural processes that support these
habitat components. The primary constituent elements include: abundant
prey items within riverine habitats for larval and juvenile life
stages, and within estuarine and marine habitats and substrates for
juvenile, subadult, and adult life stages; riverine spawning sites with
substrates suitable for egg deposition and development, such as
limestone outcrops and cut limestone banks, bedrock, large gravel or
cobble beds, marl, soapstone or hard clay; riverine aggregation areas,
also referred to as resting, holding, and staging areas, used by adult,
subadult, and/or juveniles, generally, but not always, located in holes
below normal riverbed depths, believed necessary for minimizing energy
expenditures during fresh water residency and possibly for
osmoregulatory functions; a flow regime (i.e., the magnitude,
frequency, duration, seasonality, and rate-of-change of fresh water
discharge over time) necessary for normal behavior, growth, and
survival of all life stages in the riverine environment, including
migration, breeding site selection, courtship, egg fertilization,
resting, and staging; and necessary for maintaining spawning sites in
suitable condition for egg attachment, eggs sheltering, resting, and
larvae staging; water quality, including temperature, salinity, pH,
hardness, turbidity, oxygen content, and other chemical
characteristics, necessary for normal behavior, growth, and viability
of all life stages; sediment quality, including texture and other
chemical characteristics, necessary for normal behavior, growth, and
viability of all life stages; and safe and unobstructed migratory
pathways necessary for passage within and between riverine, estuarine,
and marine habitats (e.g. a river unobstructed by any permanent
structure, or a dammed river that still allows for passage).
The river reaches within Units 1 to 7 as critical habitat lie
within the ordinary high water line. As defined in 33 CFR 329.11, the
ordinary high water line on non-tidal rivers is the line on the shore
established by the fluctuations of water and indicated by physical
characteristics such as a clear, natural line impressed on the bank;
shelving; changes in the character of soil; destruction of terrestrial
vegetation; the presence of litter and debris; or other appropriate
means that consider the characteristics of the surrounding areas.
The downstream limit of the riverine units is the mouth of each
river. The mouth is defined as rkm 0 (rmi 0). Although the interface of
fresh and saltwater, referred to as the saltwater wedge, occurs within
the lower-most reach of a river, for ease in delineating critical
habitat units, we are defining the boundary between the riverine and
estuarine units as rkm 0 (rmi 0).
Regulatory jurisdiction in coastal areas extends to the line on the
shore reached by the plane of the mean (average) high water (MHW) (33
CFR 329.12(a)(2)). All bays and estuaries within Units 8 to 14,
therefore, lie below the MHW lines. Where precise determination of the
actual location becomes necessary, it must be established by survey
with reference to the available tidal datum, preferably averaged over a
period of 18.6 years. Less precise methods, such as observation of the
``apparent shoreline'' which is determined by reference to physical
markings, lines of vegetation, may be used only where an estimate is
needed of the line reached by the mean high water.
The term 72 COLREGS is defined as demarcation lines which delineate
those
[[Page 13455]]
waters upon which mariners shall comply with the International
Regulations for Preventing Collisions at Sea, 1972 and those waters
upon which mariners shall comply with the Inland Navigation Rules (33
CFR 80.01). The waters inside of these lines are Inland Rules waters
and the waters outside the lines are COLREGS waters. These lines are
defined in 33 CFR part 80, and have been used for identification
purposes to delineate boundary lines of the estuarine and marine
habitat Units 8, 9, 11, and 12.
Critical habitat does not include existing developed sites such as
dams, piers, marinas, bridges, boat ramps, exposed oil and gas
pipelines, oil rigs, and similar structures or designated public
swimming areas.
Critical habitat units are depicted for Louisiana, Mississippi,
Alabama and Florida on the maps below. The textual unit descriptions
below are definitive sources for determining the critical habitat
boundaries. General location maps by unit are provided for general
guidance purposes only, and not as a definitive source for determining
critical habitat boundaries.
(a) Unit 1: Pearl River System in St. Tammany and Washington
Parishes in Louisiana and Walthall, Hancock, Pearl River, Marion,
Lawrence, Simpson, Copiah, Hinds, Rankin, and Pike Counties in
Mississippi.
(1) Unit 1 includes the Pearl River main stem from the spillway of
the Ross Barnett Dam, Hinds and Rankin Counties, Mississippi,
downstream to where the main stem river drainage discharges at its
mouth joining Lake Borgne, Little Lake, or The Rigolets in Hancock
County, Mississippi, and St. Tammany Parish, Louisiana. It includes the
main stems of the East Pearl River, West Pearl River, West Middle
River, Holmes Bayou, Wilson Slough, downstream to where these main stem
river drainages discharge at the mouths of Lake Borgne, Little Lake, or
The Rigolets. Unit 1 also includes the Bogue Chitto River main stem, a
tributary of the Pearl River, from Mississippi State Highway 570, Pike
County, Mississippi, downstream to its confluence with the West Pearl
River, St. Tammany Parish, Louisiana. The lateral extent of Unit 1 is
the ordinary high water line on each bank of the associated rivers and
shorelines.
(2) Maps of Unit 1 follow:
BILLING CODE 3510-22-P
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[[Page 13457]]
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BILLING CODE 3510-22-C
(b) Unit 2: Pascagoula River System in Forrest, Perry, Greene,
George, Jackson, Clarke, Jones, and Wayne Counties, Mississippi.
(1) Unit 2 includes all of the Pascagoula River main stem and its
distributaries, portions of the Bouie, Leaf, and Chickasawhay
tributaries, and all of the Big Black Creek tributary. It includes the
Bouie River main stem beginning on the southern-most road crossing of
Interstate 59, Forrest County, Mississippi, downstream to its
confluence with the Leaf River, Forrest County, Mississippi. The Leaf
River main stem beginning from Mississippi State Highway 588, Jones
County, Mississippi, downstream to its confluence with the Chickasawhay
River, George County, Mississippi is included. The main stem of the
Chickasawhay River from the mouth of Oaky Creek, Clarke County,
Mississippi, downstream to its confluence with the Leaf River, George
County, Mississippi is included. Unit 2 also includes Big Black Creek
main stem from its confluence with Black and Red Creeks, Jackson
County, Mississippi, to its confluence with the Pascagoula River,
Jackson County, Mississippi. All of the main stem of the Pascagoula
River from its confluence with the Leaf and Chickasawhay Rivers, George
County, Mississippi, to the discharge of the East and West Pascagoula
Rivers into Pascagoula Bay, Jackson County, Mississippi, is included.
The lateral extent of Unit 2 is the ordinary high water line on each
bank of the associated rivers and shorelines.
(2) Major shipping channels in this unit are excluded under section
4(b)(2) of the Act.
(3) Maps of Unit 2 follow:
BILLING CODE 3510-22-P
[[Page 13459]]
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[[Page 13464]]
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BILLING CODE 3510-22-C
(c) Unit 3: Escambia River System in Santa Rosa and Escambia
Counties, Florida and Escambia, Conecuh, and Covington Counties,
Alabama.
(1) Unit 3 includes the Conecuh River main stem beginning just
downstream of the spillway of Point A Dam, Covington County, Alabama,
downstream to the Florida State line, where its name changes to the
Escambia River, Escambia County, Alabama, and Escambia and Santa Rosa
Counties, Florida. It includes the entire main stem of the Escambia
River downstream to its discharge into Escambia Bay and Macky Bay,
Escambia and Santa Rosa Counties, Florida. All of the distributaries of
the Escambia River including White River, Little White River, Simpson
River, and Dead River, Santa Rosa County, Florida are included. The
Sepulga River main stem from Alabama County Road 42, Conecuh and
Escambia Counties, Alabama, downstream to its confluence with the
Conecuh River, Escambia County, Alabama, is also included. The lateral
extent of Unit 3 is the ordinary high water line on each bank of the
associated lakes, rivers, and shorelines.
(2) Maps of Unit 3 follow:
BILLING CODE 3510-22-P
[[Page 13465]]
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[[Page 13466]]
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BILLING CODE 3510-22-C
(d) Unit 4: Yellow River System in Santa Rosa and Okaloosa
Counties, Florida and Covington County, Alabama.
(1) Unit 4 includes the Yellow River main stem from Alabama State
Highway 55, Covington County, Alabama, downstream to its discharge at
Blackwater Bay, Santa Rosa County, Florida. All Yellow River
distributaries (including Weaver River and Skim Lake) discharging into
Blackwater Bay are included. The Shoal River main stem, a Yellow River
tributary, from Florida Highway 85, Okaloosa County, Florida, to its
confluence with the Yellow River, is included. The Blackwater River
from its confluence with Big Coldwater Creek, Santa Rosa County,
Florida, downstream to its discharge into Blackwater Bay is included.
Wright Basin and Cooper Basin, Santa Rosa County, on the Blackwater
River are included. The lateral extent of Unit 4 is the ordinary high
water line on each bank of the associated lakes, rivers, and
shorelines.
(2) Maps of Unit 4 follow:
BILLING CODE 3510-22-P
[[Page 13468]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.049
[[Continued on page 13469]]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
]
[[pp. 13469-13495]] Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Gulf Sturgeon
[[Continued from page 13468]]
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BILLING CODE 3510-22-C
(e) Unit 5: Choctawhatchee River System in Holmes, Washington, and
Walton Counties, Florida and Dale, Coffee, Geneva, and Houston
Counties, Alabama.
(1) Unit 5 includes the Choctawhatchee River main stem from its
confluence with the west and east fork of the Choctawhatchee River,
Dale County, Alabama, downstream to its discharge at Choctawhatchee
Bay, Walton County, Florida. The distributaries discharging into
Choctawhatchee Bay known as Mitchell River, Indian River, Cypress
River, and Bells Leg are included. The Boynton Cutoff, Washington
County, Florida, which joins the Choctawhatchee River main stem, and
Holmes Creek, Washington County, Florida, are included. The section of
Holmes Creek from Boynton Cutoff to the mouth of Holmes Creek,
Washington County, Florida, is included. The Pea River main stem, a
Choctawhatchee River tributary, from the Elba Dam, Coffee County,
Alabama, to its confluence with the Choctawhatchee River, Geneva
County, Alabama, is included. The lateral extent of Unit 5 is the
ordinary high water line on each bank of the associated rivers and
shorelines.
(2) Maps of Unit 5 follow:
BILLING CODE 3510-22-P
[[Page 13473]]
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[[Page 13474]]
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BILLING CODE 3510-22-C
(f) Unit 6: Apalachicola River System in Franklin, Gulf, Liberty,
Calhoun, Jackson, and Gadsen Counties, Florida.
(1) Unit 6 includes the Apalachicola River mainstem, beginning from
the Jim Woodruff Lock and Dam, Gadsden and Jackson Counties, Florida,
downstream to its discharge at East Bay or Apalachicola Bay, Franklin
County, Florida. All Apalachicola River distributaries, including the
East River, Little St. Marks River, St. Marks River, Franklin County,
Florida, to their discharge into East Bay and/or Apalachicola Bay are
included. The entire main stem of the Brothers River, Franklin and Gulf
Counties, Florida, a tributary of the Apalachicola River, is included.
The lateral extent of Unit 6 is the ordinary high water line on each
bank of the associated rivers and shorelines.
(2) Maps of Unit 6 follow:
BILLING CODE 3510-22-P
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BILLING CODE 3510-22-C
(g) Unit 7: Suwannee River System in Hamilton, Suwannee, Madison,
Lafayette, Gilchrist, Levy, Dixie, and Columbia Counties, Florida.
(1) Unit 7 includes the Suwannee River main stem, beginning from
its confluence with Long Branch Creek, Hamilton County, Florida,
downstream to the mouth of the Suwannee River. It includes all the
Suwannee River distributaries, including the East Pass, West Pass,
Wadley Pass, and Alligator Pass, Dixie and Levy Counties, Florida, to
their discharge into the Suwannee Sound or the Gulf of Mexico. The
Withlacoochee River main stem from Florida State Road 6, Madison and
Hamilton Counties, Florida, to its confluence with the Suwannee River
is included. The lateral extent of Unit 7 is the ordinary high water
line on each bank of the associated rivers and shorelines.
(2) Maps of Unit 7 follow:
BILLING CODE 3510-22-P
[[Page 13479]]
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BILLING CODE 3510-22-C
(h) Unit 8: Lake Pontchartrain, Lake St. Catherine, The Rigolets,
Little Lake, Lake Borgne, and Mississippi Sound in Jefferson, Orleans,
St. Tammany, and St. Bernard Parish, Louisiana, Hancock, Jackson, and
Harrison Counties in Mississippi, and in Mobile County, Alabama.
(1) Unit 8 encompasses Lake Pontchartrain east of the Lake
Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St.
Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound.
Critical habitat follows the shorelines around the perimeters of each
included lake. The Mississippi Sound includes adjacent open bays
including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy Bay,
and barrier island passes, including Ship Island Pass, Dog Keys Pass,
Horn Island Pass, and Petit Bois Pass. The northern boundary of the
Mississippi Sound is the shorelines of the mainland between Heron Bay
Point, MS and Point aux Pins, AL. Designated critical habitat excludes
St. Louis Bay, north of the railroad bridge across its mouth; Biloxi
Bay, north of the U.S. Highway 90 bridge; and Back Bay of Biloxi. The
southern boundary follows along the broken shoreline of Lake Borgne
created by low swampy islands from Malheureux Point to Isle au Pitre.
From the northeast point of Isle au Pitre, the boundary continues in a
straight north-northeast line to the point 1 nm (1.9 km) seaward of the
western most extremity of Cat Island (30[deg]13''N, 89[deg]10''W). The
southern boundary continues 1 nm (1.9 km) offshore of the barrier
islands and offshore of the 72 COLREGS lines at barrier island passes
(defined at 33 CFR 80.815 (c)), (d) and (e) to the eastern boundary.
Between Cat Island and Ship Island there is no 72 COLREGS line. We
therefore, have defined that section of the southern boundary as 1 nm
(1.9 km) offshore of a straight line drawn from the southern tip of Cat
Island to the western tip of Ship Island. The eastern boundary is the
line of longitude 88[deg]18.8''W from its intersection with the shore
(Point aux Pins) to its intersection with the southern boundary. The
lateral extent of Unit 8 is the MHW line on each shoreline of the
included water bodies or the entrance to rivers, bayous, and creeks.
(2) Major shipping channels in this unit, as identified on standard
navigation charts and marked by buoys, are excluded under section
4(b)(2) of the Act.
(3) Maps of Unit 8 follow:
BILLING CODE 3510-22-P
[[Page 13483]]
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BILLING CODE 3510-22-C
(i) Unit 9: Pensacola Bay System in Escambia and Santa Rosa
Counties, Florida.
(1) Unit 9 includes Pensacola Bay and its adjacent main bays and
coves. These include Big Lagoon, Escambia Bay, East Bay, Blackwater
Bay, Bayou Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and
Catfish Basin. All other bays, bayous, creeks, and rivers are excluded
at their mouths. The western boundary is the Florida State Highway 292
Bridge crossing Big Lagoon to Perdido Key. The southern boundary is the
72 COLREGS line between Perdido Key and Santa Rosa Island (defined at
33 CFR 80.810(g)). The eastern boundary is the Florida State Highway
399 Bridge at Gulf Breeze, FL. The lateral extent of Unit 9 is the MHW
line on each included bay's shoreline.
(2) Major shipping channels in this unit, as identified on standard
navigation charts and marked by buoys, are excluded under section
4(b)(2) of the Act.
(3) A Map of Unit 9 follows:
BILLING CODE 3510-22-P
[[Page 13487]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.068
BILLING CODE 3510-22-C
(j) Unit 10: Santa Rosa Sound in Escambia, Santa Rosa, and Okaloosa
Counties, Florida.
(1) Unit 10 includes the Santa Rosa Sound, bounded on the west by
the Florida State Highway 399 bridge in Gulf Breeze, FL. The eastern
boundary is the U.S. Highway 98 bridge in Fort Walton Beach, FL. The
northern and southern boundaries of Unit 10 are formed by the
shorelines to the MHW line or by the entrance to rivers, bayous, and
creeks.
(2) A Map of Unit 10 follows:
BILLING CODE 3510-22-P
[[Page 13488]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.069
BILLING CODE 3510-22-C
(k) Unit 11: Florida Nearshore Gulf of Mexico Unit in Escambia,
Santa Rosa, Okaloosa, Walton, Bay, and Gulf Counties, Florida.
[[Page 13489]]
(1) Unit 11 includes a portion of the Gulf of Mexico as defined by
the following boundaries. The western boundary is the line of longitude
87[deg]20.0'W (approximately 1 nm (1.9 km) west of Pensacola Pass) from
its intersection with the shore to its intersection with the southern
boundary. The northern boundary is the MHW of the mainland shoreline
and the 72 COLREGS lines at passes as defined at 30 CFR 80.810 (a-g).
The southern boundary is 1 nm (1.9 km) offshore of the northern
boundary. The eastern boundary is the line of longitude 85[deg]17.0'W
from its intersection with the shore (near Money Bayou between Cape San
Blas and Indian Peninsula) to its intersection with the southern
boundary.
(2) A Map of Unit 11 follows:
BILLING CODE 3510-22-P
[[Page 13490]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.070
BILLING CODE 3510-22-C
(l) Unit 12: Choctawhatchee Bay in Okaloosa and Walton Counties,
Florida.
(1) Unit 12 includes the main body of Choctawhatchee Bay, Hogtown
Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous,
creeks, rivers are excluded at their mouths/entrances. The western
boundary is the U.S. Highway 98 bridge at Fort Walton Beach, FL. The
southern boundary is the 72 COLREGS line across East (Destin) Pass as
defined at 33 CFR 80.810(f). The lateral extent of Unit 12 is the MHW
line on each shoreline of the included water bodies.
(2) A Map of Unit 12 follows:
BILLING CODE 3510-22-P
[[Page 13491]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.071
BILLING CODE 3510-22-C
[[Page 13492]]
(m) Unit 13: Apalachicola Bay in Gulf and Franklin County, Florida.
(1) Unit 13 includes the main body of Apalachicola Bay and its
adjacent sounds, bays, and the nearshore waters of the Gulf of Mexico.
These consist of St. Vincent Sound, including Indian Lagoon;
Apalachicola Bay including Horseshoe Cove and All Tides Cove; East Bay
including Little Bay and Big Bay; and St George Sound, including
Rattlesnake Cove and East Cove. Barrier Island passes (Indian Pass,
West Pass, and East Pass) are also included. Sike's cut is excluded
from the lighted buoys on the Gulf of Mexico side to the day boards on
the bay side. The southern boundary includes water extending into the
Gulf of Mexico 1 nm (1.9 km) from the MHW line of the barrier islands
and from 72 COLREGS lines between the barrier islands (defined at 33
CFR 80.805 (e-h)). The western boundary is the line of longitude
85[deg]17.0'W from its intersection with the shore (near Money Bayou
between Cape San Blas and Indian Peninsula) to its intersection with
the southern boundary. The eastern boundary is formed by a straight
line drawn from the shoreline of Lanark Village at 29[deg]53.1'N,
84[deg]35.0'W to a point that is 1 nm (1.9 km) offshore from the
northeastern extremity of Dog Island at 29[deg]49.6'N, 84[deg]33.2'W.
The lateral extent of Unit 13 is the MHW line on each shoreline of the
included water bodies or the entrance of excluded rivers, bayous, and
creeks.
(2) A Map of Unit 13 follows:
BILLING CODE 3510-22-P
[[Page 13493]]
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BILLING CODE 3510-22-C
(n) Unit 14: Suwannee Sound in Dixie and Levy Counties, Florida.
(1) Unit 14 includes Suwannee Sound and a portion of adjacent Gulf
of Mexico waters extending 9 nm from shore (16.7 km) out to the State
territorial water boundary. Its northern boundary is formed by a
straight line from the northern tip of Big Pine Island (at
approximately 29[deg]23'N, 83[deg]12'W) to the Federal-State boundary
at 29[deg]17'N, 83[deg]21'W. The southern boundary is formed by a
straight line from the southern tip of Richards Island (at
approximately 83[deg]04'W, 29[deg]11'N) to the Federal-State boundary
at 83[deg]15'W, 29[deg]04'N. The lateral extent of Unit 14 is the MHW
line along the shorelines and the mouths of the Suwannee River (East
and West Pass), its distributaries, and other rivers, creeks, or water
bodies.
(2) A Map of Unit 14 follows:
[[Page 13494]]
[GRAPHIC] [TIFF OMITTED] TR19MR03.073
BILLING CODE 3510-22-C
[[Page 13495]]
Dated: February 27, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
Dated: February 28, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 03-5208 Filed 3-18-03; 8:45 am]
BILLING CODE 3510-22-P