Wednesday, March 19, 2003

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Part 226 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Gulf ; Final Rule 13370 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

DEPARTMENT OF THE INTERIOR ADDRESSES: The complete from Lake Pontchartrain and the Pearl administrative record, including River system in Louisiana and Fish and Wildlife Service comments and materials received, as east to the well as supporting documentation, used in . Sporadic occurrences have 50 CFR Part 17 in the preparation of this final rule are been recorded as far west as the Rio available for public inspection, by Grande River between Texas and RIN 1018–AI23 appointment, during normal business Mexico, and as far east and south as DEPARTMENT OF COMMERCE hours at the Panama City Field Office, Florida Bay (Wooley and Crateau, 1985; U.S. Fish and Wildlife Service, 1601 and Reynolds, 1993). In the late 19th century and early 20th National Oceanic and Atmospheric Balboa Avenue, Panama City, Florida century, the Gulf sturgeon supported an Administration 32405. Copies of the final rule, economic analysis, and information important commercial fishery, providing eggs for caviar, flesh for 50 CFR Part 226 regarding this critical habitat designation are available on the Internet smoked fish, and swim bladders for [Docket No.; I.D. 020522126–3051–02] at http://alabama.fws.gov/gs/. isinglass, a gelatin used in food FOR FURTHER INFORMATION CONTACT: Gail products and glues (Huff, 1975; and RIN 0648–AQ03 Carmody, Field Supervisor, Panama Carr, 1983). Gulf sturgeon numbers declined due to overfishing throughout Endangered and Threatened Wildlife City Field Office (see ADDRESSES section) (telephone 850/769–0552; most of the 20th century. The decline and Plants; Designation of Critical was exacerbated by habitat loss Habitat for the Gulf Sturgeon facsimile 850/763–2177), or Stephania Bolden, Fishery Biologist, National associated with the construction of AGENCY: Fish and Wildlife Service Oceanic and Atmospheric water control structures, such as dams (FWS), Interior, and National Marine Administration (NOAA) Fisheries, and sills (submerged ridge or vertical wall of relatively shallow depth Fisheries Service (NMFS), National Southeast Regional Office, 9721 separating two bodies of water), mostly Oceanic and Atmospheric Executive Center Drive North, St. after 1950. In several rivers throughout Administration, Commerce. Petersburg, Florida 33702 (telephone the species’ range, dams have severely 727/570–5312; facsimile 727/570–5517). ACTION: Final rule. restricted sturgeon access to historic Information regarding this designation migration routes and spawning areas SUMMARY: We, FWS and NMFS, is available in alternate formats upon (Boschung, 1976; Wooley and Crateau, collectively ‘‘the Services,’’ designate request. critical habitat for the Gulf sturgeon 1985; and McDowall, 1988). SUPPLEMENTARY INFORMATION: On September 30, 1991, we listed the (Acipenser oxyrinchus desotoi), a Gulf sturgeon as a threatened species threatened species listed under the Background under the Act (16 U.S.C. 1531 et seq.) Endangered Species Act of 1973, as The Gulf sturgeon (Acipenser (56 FR 49653). Other threats and amended (Act). We designate 14 oxyrinchus (=oxyrhynchus) desotoi), potential threats identified in the listing geographic areas among the Gulf of also known as the rule included modifications to habitat Mexico rivers and tributaries as critical sturgeon, is an anadromous fish associated with dredged material habitat for the Gulf sturgeon. These 14 (breeding in freshwater after migrating disposal, desnagging (removal of trees geographic areas (units) encompass up rivers from marine and estuarine and their roots), and other navigation approximately 2,783 river kilometers environments), inhabiting coastal rivers maintenance activities; incidental take (rkm) (1,730 river miles (rmi)) and 6,042 from Louisiana to Florida during the 2 by commercial fishermen; poor water square kilometers (km ) (2,333 square warmer months and overwintering in 2 quality associated with contamination miles (mi )) of estuarine and marine estuaries, bays, and the Gulf of Mexico. by pesticides, heavy metals, and habitat. It is a nearly cylindrical primitive fish industrial contaminants; aquaculture Critical habitat identifies specific embedded with bony plates or scutes. and incidental or accidental areas that are essential to the The head ends in a hard, extended introductions; and the Gulf sturgeon’s conservation of a listed species, and that snout; the mouth is inferior and slow growth and late maturation. The may require special management protrusible and is preceded by four Gulf sturgeon listing rule and the Gulf considerations or protection. Section conspicuous barbels. The tail (caudal Sturgeon Recovery/Management Plan 7(a)(2) of the Act requires that each fin) is distinctly asymmetrical, the (FWS et al., 1995), which was approved Federal agency shall, in consultation upper lobe is longer than the lower lobe by the Services and the Gulf States with and with the assistance of the (heterocercal). Adults range from 1.2 to Marine Fisheries Commission, provide a Services, insure that any action 2.4 meters (m) (4 to 8 feet (ft)) in length, more detailed discussion of the reasons authorized, funded or carried out by with adult females larger than males. for the species’ decline and threats to such agency is not likely to jeopardize The Gulf sturgeon is distinguished from surviving populations (available by the continued existence of an the geographically disjunct Atlantic request or at the FWS Internet site, see endangered or threatened species or coast subspecies (A. o. oxyrinchus) by ADDRESSES). result in the destruction or adverse its longer head, pectoral fins, and spleen The Gulf Sturgeon Recovery/ modification of critical habitat. Section (Vladykov, 1955; Wooley, 1985). King et Management Plan (FWS et al., 1995) 4 of the Act requires us to consider al. (2001) have documented substantial recommended that genetic studies be economic and other relevant impacts of divergence between A. o. oxyrinchus done to determine geographically specifying any particular area as critical and A. o. desotoi using microsatellite distinct management units. Some work habitat. We solicited data and comments DNA testing. in this regard has been completed from the public on all aspects of the (Stabile et al., 1996), but we have not proposal, including data on economic Distribution and Status formally adopted management units at and other impacts of the designation. Historically, the Gulf sturgeon this time. For purposes of this final rule, DATES: The effective date of this rule is occurred from the east we have used the term subpopulation to April 18, 2003. to Tampa Bay. Its present range extends subdivide the Gulf sturgeon population Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13371 based on geography, degree of subadult and adult Gulf sturgeon do not contained more connectedness, and genetic interchange feed significantly in freshwater. The than 100 individual haustoriid (Lande and Barrowclough, 1987; and isotope similarity between Gulf sturgeon amphipods and 67 ghost shrimp (Heard King et al., 2001). Seven subpopulations and marine food resources strongly et al., 2000), and (4) approximately one- are described in the ‘‘Critical Habitat indicates that this species relies almost third of 157 sturgeon guts analyzed by Unit Descriptions’’ section of this rule. entirely on the marine food web for its Carr et al. (1996b) contained exclusively growth (Gu et al., 2001). brachiopods and ghost shrimp. Feeding Habits Once subadult and adult Gulf Gulf sturgeon feeding habits in sturgeon leave the river, having spent at Reproduction freshwater vary depending on the fish’s least 6 months in the river fasting, we Gulf sturgeon are long-lived, with life history stage (i.e., young-of-the-year, presume that they immediately begin some individuals reaching at least 42 juvenile, subadult, adult). Young-of-the- feeding. Upon exiting the rivers, Gulf years in age (Huff, 1975). Age at sexual year Gulf sturgeon remain in freshwater sturgeon are found in high maturity for females ranges from 8 to 17 feeding on aquatic invertebrates and concentrations near their natal river years, and for males from 7 to 21 years detritus approximately 10 to 12 months mouths. Lakes and bays at the mouths (Huff, 1975). Gulf sturgeon eggs are after spawning occurs (Mason and of the river systems where Gulf sturgeon demersal (they are heavy and sink to the Clugston, 1993; and Sulak and Clugston, occur are important because they offer bottom), adhesive, and vary in color 1999). Juveniles (less than 5 kg (11 lbs) the first opportunity for Gulf sturgeon from gray to brown to black (Vladykov are believed to forage extensively and exiting their natal rivers to forage. Gulf and Greeley, 1963; Huff, 1975; and exploit scarce food resources throughout sturgeon must be able to consume Parauka et al., 1991). Chapman et al. the river, including aquatic insects (e.g., sufficient quantities of prey while in (1993) estimated that mature female mayflies and caddisflies), worms estuarine and marine waters to regain Gulf sturgeon weighing between 29 and (oligochaetes), and bivalve molluscs the weight they lose while in the river 51 kg (64 and 112 lb) produce an (Huff, 1975; and Mason and Clugston, system and to maintain positive growth average of 400,000 eggs. Habitat at egg 1993). Juvenile (ages 1 to 6) Gulf on a yearly basis. In addition, collection sites consists of one or more sturgeon collected in the Suwannee reproductively active Gulf sturgeon of the following: limestone bluffs and River are trophically active (foraging) require additional food resources to outcroppings, cobble, limestone bedrock near the river mouth at the estuary, but obtain sufficient energy necessary for covered with gravel and small cobble, trophically dormant (not foraging) in reproduction (Fox et al., 2002; and D. gravel, and sand (Marchant and summer holding areas upriver—a Murie and D. Parkyn, University of Shutters, 1996; Sulak and Clugston, portion of the juvenile population reside Florida (UF), pers. comm. 2002). 1999; Heise et al., 1999a; Fox et al., and feed year round near the river Adult and subadult Gulf sturgeon, 2000; and Craft et al., 2001). On the mouth at the estuary, not just in winter while in marine and estuarine habitat, Suwannee River, Sulak and Clugston (K. Sulak, U.S. Geological Survey are thought to forage opportunistically (1999) suggest a dense matrix of gravel (USGS), pers. comm. 2002). In the (Huff, 1975), primarily on benthic or cobble is likely essential for Gulf , juvenile (ages 1 (bottom dwelling) invertebrates. Gut sturgeon egg adhesion and the to 6) Gulf sturgeon did not remain near content analyses have indicated that the sheltering of the yolk sac larvae, and is the estuary at the river mouth for the Gulf sturgeon’s diet is predominantly a habitat spawning adults apparently entire year, instead, they were located amphipods, lancelets, polychaetes, select. Other substrates identified as during winter months in gastropods, shrimp, isopods, molluscs, possible spawning habitat include marl Choctawhatchee Bay and returned and crustaceans (Huff, 1975; Mason and (clay with substantial calcium upriver to resting areas in the spring (F. Clugston, 1993; Carr et al., 1996b; Fox carbonate), soapstone, or hard clay (W. Parauka, FWS, pers. comm. 2002). et al., 2000; and Fox et al., 2002). Gulf Slack, Mississippi Museum of Natural Subadult (age 6 to sexual maturity) and sturgeon from the Suwannee River Science (MMNS), pers. comm. 2002; adult (sexually mature) Gulf sturgeon do subpopulation are known to forage on and F. Parauka, pers. comm. 2002). not feed in freshwater (Wooley and brachiopods (Murie and Parkyn, pers. Water depths at egg collection sites Crateau, 1985; and Mason and Clugston, comm. 2002); however, this is not a ranged from 1.4 to 7.9 m (4.6 to 26 ft), 1993). documented prey item of other with temperatures ranging from 18.2 to Many reports indicate that adult and subpopulations. Ghost shrimp 23.9 degrees Celsius (°C) (64.8 to 75.0 subadult Gulf sturgeon lose a substantial (Lepidophthalmus louisianensis) and degrees Fahrenheit (°F)) (Fox et al., percentage of their body weight while in the haustoriid amphipod (Lepidactylus 2000; Ross et al., 2000; Craft et al., freshwater (Wooley and Crateau, 1985; spp.) are strongly suspected to be 2001). Laboratory experiments indicated Mason and Clugston, 1993; and important prey for adult Gulf sturgeon optimal water temperature for survival Clugston et al., 1995) and then over 1 m (3.3 ft) (Heard et al., 2000; and of Gulf sturgeon larvae is between 15 compensate the loss during winter Fox et al., 2002). This hypothesis is and 20 °C (59 and 68 °F), with low feeding in the estuarine and marine based on the following evidence: (1) tolerance to temperatures above 25 °C environments (Wooley and Crateau, Gulf sturgeon have been consistently (77 °F) (Chapman and Carr, 1995). 1985; and Clugston et al., 1995). Gu et located and observed actively feeding in Researchers hypothesize that spawning al. (2001) tested the hypothesis that areas where numerous burrows similar must take place where the hydrological subadult and adult Gulf sturgeon do not to those occupied by ghost shrimp exist and chemical settings are appropriate feed significantly during their annual (Fox et al., 2000) and in areas having a for gamete (mature reproductive cell) residence in freshwater by comparing high density of ghost shrimp and function, and temperature, pH, and stable carbon isotope ratios of tissue haustoriid amphipods (Heard et al., dissolved oxygen conditions are stable samples from subadult and adult 2000), (2) the digestive tracts of two and appropriate for embryonic and yolk Suwannee River Gulf sturgeon and their adult Gulf sturgeon that died during sac larval development (Sulak and potential freshwater and marine food netting operations contained numerous Clugston, 1999). sources. A large difference in isotope ghost shrimp (Fox et al., 2000), (3) Sulak and Clugston (1999) suggested ratios between freshwater food sources stomach contents of a 30 kg (67 lb) that sturgeon spawning activity in the and fish muscle tissue suggests that sturgeon taken in the upper portion of Suwannee River is related to the phase 13372 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations of the moon, but only after the water Adult Gulf sturgeon spawn in upper et al. (1997) found that age 0 Gulf temperature has risen to 17 °C (62.6 °F). river reaches. On some river systems sturgeon under laboratory conditions Other researchers however, have found such as the and exposed to water velocities over 12 little evidence of spawning associated , some adult and centimeters per second (cm/s) (4.7 with lunar cycles (Slack et al., 1999; and subadult Gulf sturgeon remain near the inches per second (in/s)) preferred a Fox et al., 2000). Spawning in the spawning grounds throughout the cobble substrate, but favored water Suwannee River occurs during the summer months (Wooley and Crateau, velocities under 12 cm/s (4.7 in/s) and general period of spring high water, 1985; and Ross et al., 2001b), but the then used a variety of substrates (sand, when ionic conductivity and calcium majority move downstream to areas gravel, and cobble). ion concentration are most favorable for referred to as summer resting or holding Gulf sturgeon require large areas of egg development and adhesion (Sulak areas. In other rivers, most Gulf sturgeon diverse habitat that have natural and Clugston, 1999). Fox et al. (2002) spawn and move downstream to variations in water flow, velocity, found no clear pattern between timing aggregation areas also referred to as temperature, and turbidity (FWS et al., of Gulf sturgeon entering the river and summer resting or holding areas. A few flow patterns on the Choctawhatchee 1995; and Wakeford, 2001). Natural Gulf sturgeon have been documented surface and groundwater discharges River. Ross et al. (2001b) surmised that remaining at or near their spawning influence a river’s characteristic the high flows in early March were a grounds throughout the winter (Wooley fluctuations in volume, depth, and cue for sturgeon to begin their upstream and Crateau, 1985; Slack et al., 1999; velocity (Leitman et al., 1993; and movement in the Pascagoula River. and Heise et al., 1999a). Adults and Albertson and Torak, 2002). Change in Atlantic sturgeon (A. oxyrinchus) subadults are not distributed uniformly temperature is thought to be an exhibit a long inter-spawning period, throughout the river, but show a important factor in initiating sturgeon with females spawning at intervals preference for these discrete areas migration (Wooley and Crateau, 1985; ranging from every 3 to 5 years, and usually located in lower and middle Chapman and Carr, 1995; and Foster males every 1 to 5 years (Smith, 1985). river reaches (Hightower et al., in press). and Clugston, 1997) (see ‘‘Migration’’ It is believed that Gulf sturgeon exhibit Often, these resting areas are located in section for temperature ranges). similar spawning periodicity, as male close proximity to natural springs Gulf sturgeon are capable of annual throughout the warmest months of the Laboratory experiments indicate that spawning, and females require more year, but are not located within a spring Gulf sturgeon eggs, embryos, and larvae than one year between spawning events have the highest survival rates when or thermal plume emanating from a ° (Huff, 1975; and Fox et al., 2000). spring (Clugston et al., 1995; Foster and temperatures are between 15 and 20 C (59 and 68 °F). Mortality rates of Gulf Freshwater Habitat Clugston, 1997; and Hightower et al., in press). These resting areas are also often sturgeon gametes and embryos are In the spring (March to May), most highest when temperatures are 25 °C (77 adult and subadult Gulf sturgeon return located in deep holes or shallow areas ° along straight-aways ranging from 2 to F) and above (Chapman and Carr, 1995) to their natal river, where sexually (see ‘‘Reproduction’’ section for more mature sturgeon spawn, and the 19 m (6.6 to 62.3 ft) deep (Wooley and Crateau, 1985; Morrow et al., 1998a; detail). Researchers have documented population spends until October or temperature ranges at Gulf sturgeon November (6 to 8 months) in freshwater Ross et al., 2001a and b; Craft et al., ° 2001; and Hightower et al., in press). resting areas between 15.3 and 33.7 C (Odenkirk, 1989; Foster, 1993; Clugston (59.5 and 92.7 °F) with dissolved et al., 1995; and Fox et al., 2000). Fox The substrates consisted of mixtures of limestone and sand (Clugston et al., oxygen levels between 5.6 and 9.1 et al. (2000) found that some milligrams per liter (mg/l) (Morrow et individuals of the Choctawhatchee 1995), sand and gravel (Wooley and Crateau, 1985; and Morrow et al., al., 1998a; and Hightower et al., in River subpopulation do not enter the press). river until the summer months. Gulf 1998a), or just sandy substrate sturgeon migration is further discussed (Hightower et al., in press). In comparison to other fish species, in the ‘‘Migration’’ section of this rule. River flow may serve as an sturgeon have a limited behavioral and During their early life history stages, environmental cue that governs both physiological capacity to respond to sturgeon require bedrock and clean sturgeon migration and spawning hypoxia (insufficient oxygen levels) gravel or cobble substrate for eggs to (Chapman and Carr, 1995; and Ross et (Secor and Niklitschek, 2001). Basal adhere to and for shelter for developing al., 2001b). If the flow rate is too high, metabolism, growth, consumption, and larvae (Sulak and Clugston, 1998). sturgeon in several life-history stages survival are sensitive to changes in Young-of-the-year appear to disperse can be adversely affected. Data oxygen levels (Secor and Niklitschek, widely, using extensive portions of the describing the sturgeon’s swimming 2001). In laboratory experiments, young river as nursery habitat. They are ability in the Suwannee River strongly shortnose sturgeon (A. brevirostrum) typically found on sandbars and sand indicates that they cannot continually (less than 77 days old) died at oxygen shoals over rippled bottom and in swim against prevailing currents of levels of 3.0 mg/l and all sturgeon died shallow, relatively open, unstructured greater than 1 to 2 m per second (3.2 to at oxygen levels of 2.0 mg/l (Jenkins et areas. Given that the river is generally 6.6 ft per second) (K. Sulak, USGS, pers. al., 1993). Data concerning the nutrient poor with low levels of total comm. cited in Wakeford, 2001). If the temperature, oxygen, and current phosphorus and organic carbon, flow is too strong, eggs might not be able velocity requirements of cultured suggesting low productivity, this to settle on and adhere to suitable sturgeon are being collected. dispersal may be an adaptation to substrate (Wooley and Crateau et al., Researchers plan to use information exploit scarce food resources (Randall 1985). Flows that are too low can cause gained from these laboratory and Sulak, 1999). Clugston et al. (1995) clumping of eggs, which leads to experiments on hatchery-reared reported that young Gulf sturgeon in the increased mortality from asphyxiation sturgeon to develop detailed Suwannee River, weighing between 0.3 and fungal infection (Wooley and information on water flow requirements and 2.4 kg (0.7 and 5.3 lb), remain in the Crateau et al., 1985). Flow velocity of wild sturgeon throughout different vicinity of the river mouth and estuary requirements for age 0 sturgeon may phases of their freshwater residence during the winter and spring. vary depending on substrate type. Chan (Wakeford, 2001). Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13373

Estuarine and Marine Habitat barrier island passes (Ross et al., 2001a). acclimation to changing salinity levels, Most subadult and adult Gulf Gulf of Mexico nearshore (less than 1.6 referred to as osmoregulation or staging sturgeon spend cool months (October or km (1 mi)) unconsolidated, fine-medium (Wooley and Crateau, 1985). This period November through March or April) in grain sand habitats, including natural may be short (Fox et al., 2002) as estuarine areas, bays, or in the Gulf of inlets and passes from the Gulf to sturgeon develop an active mechanism Mexico (Odenkirk, 1989; Foster, 1993; estuaries, support crustaceans such as for osmoregulation and ionic balance by Clugston et al., 1995; and Fox et al., mole crabs, sand fleas, various age one (Altinok et al., 1997). On some 2002). Studies of subadult Gulf sturgeon amphipod species, and lancelets river systems, timing of the fall (ages 4 to 7) in Choctawhatchee Bay (Menzel, 1971; Abele and Kim, 1986; migration appears to be associated with found that 78 percent of tagged fish American Fisheries Society, 1989; and pulses of higher river discharge (Heise Brim, pers. comm. 2002). et al., 1999a and b; Ross et al., 2000 and remained in the bay the entire winter, Estuary and bay unvegetated habitats 2001b; and Parauka et al., in press). while 13 percent ventured into a have a preponderance of sandy Sturgeon ages 1 through 6 remain in connecting bay. Possibly the remaining substrates that support burrowing the mouth of the Suwannee River over 9 percent overwintered in the Gulf of crustaceans, such as ghost shrimp, small winter. In late January through early Mexico (FWS, 1998). Adult Gulf crabs, various polychaete worms, and February, young-of-the-year Gulf sturgeon are more likely to overwinter small bivalve mollusks (Menzel, 1971; sturgeon migrate down river for the first in the Gulf of Mexico, with 45 percent Abele and Kim, 1986; American time (Sulak and Clugston, 1999). Huff of the tagged adults presumed to have Fisheries Society, 1989; and Brim, pers. (1975) noted that juvenile Gulf sturgeon left Choctawhatchee Bay and spent comm. 2002). Gulf sturgeon are often in the Suwannee River most likely extended periods of time in the Gulf of located in these areas, and because their participated in pre- and post-spawning Mexico (Fox and Hightower, 1998; and known prey items are present, it is migrations, along with the adults. Fox et al., 2002). In contrast, Gulf assumed that Gulf sturgeon are foraging. Findeis (1997) described sturgeon sturgeon from the Suwannee River (Acipenseridae) as exhibiting subpopulation are known to migrate Migration evolutionary traits adapted for benthic into the nearshore waters, where they Migratory behavior of the Gulf cruising. Tracking observations by Sulak remain for up to two months and then sturgeon seems influenced by sex, and Clugston (1999), Fox et al. (2002), depart to unknown feeding locations in reproductive status, water temperature, and Edwards et al. (in prep.) support the open Gulf of Mexico (Carr et al., and possibly river flow. Carr et al. that individual fish move over an area 1996b; and Edwards et al., in prep.). (1996b) reported that male Gulf sturgeon until they encounter suitable prey type Research in Choctawhatchee Bay initiate migration to the river earlier in and density, at which time they forage indicates that subadult Gulf sturgeon spring than females. Fox et al. (2000) for extended periods of time. Individual show a preference for sandy shoreline found no significant difference in the fish often remained in localized areas habitats with water depths less than 3.5 timing of river entry due to sex, but (less than 1 km2 (0.4 mi2) for extended m (11.5 ft) and salinity less than 6.3 reported that males migrate further periods of time (greater than two weeks) parts per thousand (Parauka et al., in upstream than females and that ripe (in and then moved rapidly to another area press). Fox and Hightower (1998) found reproductive condition) males and where localized movements occurred that adult Gulf sturgeon monitored in females enter the river earlier than again (Fox et al., 2002). It is unknown Choctawhatchee Bay use some of the nonripe fish (Fox et al., 2000). Most precisely how much benthic area is same habitats as subadults. The majority adults and subadults begin moving from needed to sustain Gulf sturgeon health of tagged fish have been located in areas estuarine and marine waters into the and growth, but because Gulf sturgeon lacking seagrass (Fox et al., 2002; and coastal rivers in early spring (i.e., March have been known to travel long Parauka et al., in press). through May) when river water distances (greater than 161 km (100 mi)) Craft et al. (2001) found that Gulf temperatures range from 16.0 to 23.0 °C during their winter feeding phase, sturgeon in Pensacola Bay appear to (60.8 to 73.4 °C) (Huff, 1975; Carr, 1983; significant resources must be necessary. prefer shallow shoals 1.5 to 2.1 m (5 to Wooley and Crateau, 1985; Odenkirk, These winter migrations are an 7 ft) and deep holes near passes. 1989; Clugston et al., 1995; Foster and important strategy for feeding and for Unvegetated, fine to medium-grain sand Clugston, 1997; Fox and Hightower, occasional travel to non-natal rivers for habitats, such as sandbars, and 1998; Sulak and Clugston, 1999; and possible spawning and resultant genetic intertidal and subtidal energy zones Fox et al., 2000), while others may enter interchange among subpopulations. resulting in sediment sorting and a the rivers during summer months (Fox Bays and portions of Gulf of Mexico preponderance of sand support a variety et al., 2000). Some research supports the waters adjacent to the lakes and bays of potential prey items including theory that spring migration coincides near the mouths of the rivers where Gulf estuarine crustaceans, small bivalve with the general period of spring high sturgeon occur are believed to be mollusks and lancelets (Menzel, 1971; water (Chapman and Carr, 1995; Sulak important for feeding and/or migrating Abele and Kim, 1986; American and Clugston, 1999; and Ross et al., (inter-river migrations that facilitate Fisheries Society, 1989; and M. Brim, 2001b), however, observations on the maintenance of the natural hierarchy of FWS, pers. comm. 2002). Choctawhatchee River have not found a between river genetic variability). Habitats used by Gulf sturgeon in the clear relationship between the timing of When temperature drops occur that vicinity of the Mississippi Sound barrier river entrance and flow patterns (Fox et are associated with major cold fronts, islands tend to have a sand substrate al., 2002). researchers of the Escambia, Yellow, and an average depth of 1.9 to 5.9 m (6.2 Downstream migration from fresh to and Suwannee Rivers subpopulations to 19.4 ft). Preliminary data from bottom saltwater begins in September (at about have been unable to locate adult Gulf samples taken in these barrier island 23°C (73.4°F)) and continues through sturgeon within the bays (Craft et al., areas show that all samples contain November (Huff, 1975; Wooley and 2001; and Edwards et al., in prep.). They lancelets (Branchiostoma). Since Crateau,1985; and Foster and Clugston, hypothesize that the drop in water lancelets are a documented prey of Gulf 1997). During the fall migration from temperatures associated with cold fronts sturgeon, it is likely that Gulf sturgeon fresh to saltwater, Gulf sturgeon may disperses sturgeon to more distant are feeding along the sand substrate at require a period of physiological foraging grounds. It is currently 13374 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations unknown whether Gulf sturgeon these, 868 total fish were recaptured January 6, 1989 (54 FR 554). At that undertake extensive offshore migrations, (FWS et al. 1995). Of the recaptured time, the FWS gave Category 2 and further study is needed to fish, 860 fish (99 percent) were designation to species for which listing determine whether important winter recaptured in the river of their initial as threatened or endangered was feeding habitat occurs in farther offshore collection. Eight fish moved between possibly appropriate, but for which areas. river systems and represented less than additional biological information was Sulak and Clugston (1999) described 1 percent (0.009) of the 868 total fish needed to support a proposed rule. A two hypotheses regarding areas adult recaptured (FWS et al., 1995). We have status report on the Gulf sturgeon Gulf sturgeon may overwinter in the no information documenting spawning (Hollowell, 1980) had concluded that Gulf of Mexico in order to find adults in non-natal rivers. Foster and the fish had been reduced to a small abundant prey. The first hypothesis is Clugston (1997) noted that telemetered population due to overfishing and that Gulf sturgeon spread along the Gulf sturgeon in the Suwannee River habitat loss. In 1988, the FWS coast in nearshore waters in depths less returned to the same areas as the completed a report on the conservation than 10 m (33 ft). The alternative previous summer, and suggested that status of the Gulf sturgeon, which hypothesis is that they migrate far chemical cuing may influence recommended listing it as a threatened offshore to the broad sedimentary distribution. species (Barkuloo, 1988). plateau in deep water (40 to 100 m (131 To date, biologists have documented The Services jointly proposed the to 328 ft)) west of the Florida Middle a total of 22 Gulf sturgeon making inter- Gulf sturgeon for listing as a threatened Grounds, where over twenty species of river movements from natal rivers. They species on May 2, 1990 (55 FR 18357). bottom-feeding fish congregate in the are as follows: Apalachicola River to In that proposed rule, we stated that winter (Darnell and Kleypas, 1987). Suwannee River, six Gulf sturgeon (Carr designation of critical habitat was not Available data support the first et al., 1996b); Apalachicola River to prudent due to the species’’ broad range hypothesis. Evaluation of tagging data Deer Point Lake (North Bay of the St. and the lack of knowledge about has identified several nearshore Gulf of Andrew Bay system), one fish (Wooley specific areas used by the species. We Mexico feeding migrations, but no and Crateau, 1985); Suwannee River to published the final rule on September offshore Gulf of Mexico feeding Apalachicola River, three sturgeon (Carr 30, 1991 (56 FR 49653) to add Gulf migrations or areas. Telemetry data et al., 1996b; and F. Parauka, pers. sturgeon to the list of threatened document that Gulf sturgeon from the comm. 2002); Choctawhatchee River to species, and included a special rule Pearl River and Pascagoula River Apalachicola River, one sturgeon (F. under section 4(d) of the Act to allow subpopulations migrate from their natal Parauka, pers. comm. 2002); Yellow the take of Gulf sturgeon, in accordance bay systems to Mississippi Sound and River to Choctawhatchee River, three with applicable State fish and wildlife move along the barrier islands, with female sturgeon (two adult, one conservation laws and regulations, for relocation of tagged individuals greatest subadult) (Craft et al., 2001); Yellow educational and scientific purposes, the in the passes between islands (Ross et River to Louisiana Estuarine area, one enhancement of propagation or survival al., 2001a; and Rogillio et al., 2002). female sturgeon (Craft et al., 2001); of the species, zoological exhibition, Gulf sturgeon from the Choctawhatchee Escambia River to Yellow River, one and other conservation purposes. River, Yellow River, and Apalachicola mature female on spawning grounds Section 4(a)(3)(A) of the Act requires River have been documented migrating (Craft et al., 2001); Suwannee River to that critical habitat be designated in the nearshore Gulf of Mexico waters , one sturgeon (FWS concurrently with a determination that between Pensacola and Apalachicola et al., 1995); Choctawhatchee River to a species is endangered or threatened, to Bays (Fox et al., 2002; and F. Parauka, Escambia River, one male sturgeon (Fox the maximum extent prudent and pers. comm. 2002). Telemetry data in et al., 2002); Choctawhatchee River to determinable. When such a designation the Gulf of Mexico usually locate Escambia, one female sturgeon (Fox et is not determinable at the time of final sturgeon in depths of 6 m (19.8 ft) or al., 2002); Pearl River (Bogue Chitto) to listing of a species, or if a prompt less (Ross et al., 2001a; Fox et al., 2002; Pascagoula River, one sturgeon (Ross et determination of endangered or Rogillio et al., 2002; and F. Parauka, al., 2001b); Choctawhatchee River to threatened status is essential to the pers. comm. 2002). Pascagoula River, one subadult sturgeon conservation of the species, section (Ross et al., 2001b); and Pascagoula 4(b)(6)(C) of the Act provides for an River-Specific Fidelity River to Yellow River, one sturgeon additional year to promulgate a final Stabile et al. (1996) analyzed tissue (Ross et al., 2001b). critical habitat designation. In the final from Gulf sturgeon in eight drainages Tallman and Healey (1994) noted that rule listing Gulf sturgeon as a threatened along the Gulf of Mexico for genetic observed straying rates between rivers species, we found that a critical habitat diversity. They noted significant were not the same as actual gene flow designation may be prudent but was not differences among Gulf sturgeon stocks rates, i.e., inter-stock movement does determinable. We found that prompt and suggested that they displayed not equate to interstock reproduction. determination of threatened status was region-specific affinities and may The gene flow is low in Gulf sturgeon essential to the conservation of the exhibit river-specific fidelity. Stabile et stocks, with each stock exchanging less species and stated that we would make al. (1996) identified five regional or than one mature female per generation a final decision on designation of river-specific stocks (from west to east): (Waldman and Wirgin, 1998). critical habitat by May 2, 1992. This (1) Lake Pontchartrain and Pearl River, decision, however, was not made. (2) Pascagoula River, (3) Escambia and Previous Federal Action On August 11, 1994, the Sierra Club Yellow Rivers, (4) Choctawhatchee Federal action on the Gulf sturgeon Legal Defense Fund, Inc. (Fund), on River, and (5) Apalachicola, began in 1982, when the fish was behalf of the Orleans Audubon Society Ochlockonee, and Suwannee Rivers. included as a Category 2 candidate and Florida Wildlife Federation, gave Tagging studies suggest that Gulf species for listing in the FWS’s written notice of their intent to file suit sturgeon exhibit a high degree of river vertebrate notices of review dated against the Department of the Interior fidelity (Carr, 1983). From 1981 to 1993, December 30, 1982 (47 FR 58454) and for failure to designate critical habitat 4,100 fish were tagged in the September 18, 1985 (50 FR 37958), and for the Gulf sturgeon within the Apalachicola and Suwannee Rivers. Of in the animal notice of review dated statutory time limits established under Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13375 the Act. The Fund filed suit on October resulted in an agreement to submit the agencies, 13 State agencies, 5 county 11, 1994 (Orleans Audubon Society v. proposed decision to the Federal governments, 93 groups or individuals, Babbitt, Civ. No. 94–3510 (E.D. La)). Register on or by May 23, 2002, and the and 3 peer reviewers. Of the 128 total Following a court order on August 9, final decision on or by February 28, responses, 29 supported the proposed 1995, granting the Fund’s motion for 2003. rule, 2 opposed it, and the rest were summary judgement, the Services On June 6, 2002, we published a neutral. published a notice of decision on proposed rule in the Federal Register in In accordance with our peer review critical habitat designation for the Gulf which we announced our determination policy published on July 1, 1994 (59 FR sturgeon on August 23, 1995 (60 FR that designation of critical habitat was 34270), we solicited independent 43721). We determined that critical prudent, proposed designation of opinions from six knowledgeable habitat designation was not prudent critical habitat for Gulf sturgeon, individuals having expertise either with based on the lack of additional announced four public meetings and the species, with the geographic region conservation benefit to the species. hearings, and requested comments on where the species occurs, and/or On September 22, 1995, the Services the proposal by September 23, 2002 (67 familiarity with the principles of and the Gulf States Marine Fisheries FR 39106). On August 8, 2002, we conservation biology. Three of these Commission approved the Gulf published a notice in the Federal experts provided a written response Sturgeon Recovery/Management Plan Register (67 FR 51530) announcing the generally supporting the designation (FWS et al., 1995). The recovery plan availability of the draft economic and provided additional information established the criteria that must be met analysis and the extension of the that we have incorporated into the rule prior to the delisting of the Gulf comment period through October 7, as appropriate. We appreciate the sturgeon. The recovery plan also 2002. We also corrected the address of responses of these peer reviewers, and identified the actions that are needed to a public hearing to be held in Defuniak believe their input has improved the assist in the recovery of the Gulf Springs, FL on August 20, 2002. We content of this rule. sturgeon. held public meetings and public We reviewed all comments received On August 12, 1996, the plaintiffs hearings on the proposed rule and draft for substantive issues and new data filed a motion to add the Department of economic analysis at four locations: regarding critical habitat and Gulf Commerce as a defendant in the lawsuit. Live Oak, Florida, on August 19, 2002; sturgeon. Some comments resulted in The Fund amended their complaint to Defuniak Springs, Florida, on August changes between the proposed and final challenge the August 1995 ‘‘not 20, 2002; Biloxi, Mississippi, on August designations, and those comments are prudent’’ determination. On October 30, 21, 2002; and Kenner, Louisiana, on discussed in the ‘‘Summary of Changes 1997, the court granted the plaintiffs’ August 22, 2002. From the Proposed Rule’’ section of this motion for summary judgment, with document. Written comments and oral relief restricted to a remand of the ‘‘not Summary of Comments and statements presented at the public prudent’’ determination to the Services, Recommendations hearings and received during the requiring that the Services publish a We contacted appropriate Federal, comment period are addressed in the determination on designation of critical State, and local agencies, scientific following summary. For readers’ habitat, based on the best scientific organizations, and other interested convenience we have assigned information available. On February 27, parties and invited them to comment on comments to major issue categories. We 1998, we published a notice of decision the proposal to designate critical habitat have combined similar comments into (63 FR 9967) on critical habitat for the Gulf sturgeon. In addition, we single comments and responses. designation for the Gulf sturgeon. We published newspaper notices inviting Peer Review Comments again determined that lack of additional public comment on the proposed rule conservation benefit from critical and the draft economic analysis, and Comment 1: Three peer reviewers habitat designation for this species announced the public meetings and recommended that additional areas be made such designation not prudent. hearings in the following newspapers: included as critical habitat, sometimes On December 18, 1998, the Sierra St. Petersburg Times, Pensacola News stating that the areas contain the Club sued the Services challenging the Journal, Panama City The News Herald, primary constituent elements upon new determination not to designate Fort Walton Daily News, which Gulf sturgeon rely. Others critical habitat for the Gulf sturgeon Citrus County Chronicle, Tallahassee requested inclusion based on historic (Sierra Club v. U.S. Fish and Wildlife Democrat, and The Gainesville Sun, in use or potential use by the Gulf sturgeon Service et al. CA No. 98–3788 (E.D. Florida; The Brewton Standard, Dothan in these areas. The areas requested for La.)). On January 25, 2000, the Court Eagle, Geneva County Reaper, and inclusion were St. Joseph Bay in issued an order granting our motion for Mobile Register, in ; Hinds Florida, the western portion of Lake summary judgment and dismissing the County The Clarion-Ledger and Pontchartrain and all of Lake Maurepas complaint. The Sierra Club filed an Gulfport’s The Sun Herald, in in Louisiana, and the Strong River in appeal and, in March 2001, the United Mississippi; and New Orleans The Mississippi. States Court of Appeals for the 5th Times-Picayune and Baton Rouge’s The Also, twenty eight commenters Circuit reversed the decision of the Advocate in Louisiana. recommended that additional areas be District Court and instructed the District We held four public meetings and included as critical habitat, with some Court to remand the decision to us for four public hearings on the proposed stating that the areas contain the reconsideration (Sierra Club v. U.S. Fish rule (see ‘‘Previous Federal Action’’ primary constituent elements. Others and Wildlife Service, 245 F.3d 434 (5th section for dates and locations). requested inclusion based on historic Cir. 2001)). On August 3, 2001, the Transcripts of these hearings are use or potential use by the Gulf sturgeon District Court issued an order directing available for inspection (see in these areas. Other commenters us to publish a proposed decision ADDRESSES). expressed concerns that the proposed concerning critical habitat designation We received written letters or e-mails designation did not include all of the for the Gulf sturgeon by February 2, from a total of 126 parties which current range of the Gulf sturgeon. The 2002, and a final decision by August 2, included 2 congressional areas requested for inclusion were the 2002. Negotiation with the plaintiff representatives from , 10 Federal Ochlockonee River, Withlacoochee 13376 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

River (central Florida river, not the represent suitable habitat or were Comment 4: One peer reviewer and tributary of the Suwannee River), West otherwise not essential to the one commenter questioned our rationale Bay, East Bay of St. Andrew Bay system, conservation of the species. for deriving seven subpopulations from St. Andrew Bay, St. Joseph Bay, Tampa Comment 2: One peer reviewer stated the five that were proposed by Stabile Bay, and the Hillsborough River in that the designation of critical habitat et al. (1996). Florida; an additional Choctawhatchee for the Chickasawhay River (Unit 2) Our Response: We first evaluated the River reach, Mobile Bay, Murder Creek should be expanded upstream to the Gulf sturgeon in the context of its (tributary of the ), beginning of the Chickasawhay River current distribution throughout the Alabama River, Bayou La Batre, and starting at the confluence of the Chunky historic range to determine what portion Perdido Bay in Mobile Bay, in Alabama; and Okatibbee Rivers, north of of the range must be designated to Strong River in Mississippi; the western Enterprise (Clarke County, Mississippi). ensure conservation of the species. We portion of Lake Pontchartrain, Tickfaw This area contains the primary considered several factors in this River, Tchefuncte River, Lake Maurepas, constituent elements as noted in the evaluation: (1) Maintaining overall Chandeleur Sound, in Louisiana; and proposed rule, including potential genetic integrity and natural rates of the coastline from Mississippi to Tampa spawning habitat. Research efforts inter-river genetic exchange, thereby Bay, Florida. conducted during spring 2002 by the minimizing the potential for inbreeding, Our Response: Section 4(b)(2) of the University of Southern Mississippi (2) retaining potentially important Act directs us to designate critical (USM)-MMNS Gulf sturgeon research selective pressure at the margins of the habitat on the basis of the best scientific group documented the most upstream species’ range by protecting the eastern- data available. However, no or movement of a radio-tagged individual and western-most subpopulations, (3) insufficient data were provided to us to on the Chickasawhay River traveling as decreasing the extinction risk of a support inclusion of any of the above far upstream as the confluence of the subpopulation by protecting adjacent areas as critical habitat. While many of Chunky and Okatibbee rivers. This subpopulations that can provide a these areas may have historically individual was originally tagged at the rescue effect, if needed, (4) avoiding the supported Gulf sturgeon populations mouth of the Pascagoula River during potential for subpopulation extirpation and/or may currently support early-March 2002. from environmental catastrophes, and populations, we cannot document that Our Response: The area requested for (5) protecting sufficient habitat essential they are essential to the conservation of inclusion would add 19 rkm (12 rmi) to to the conservation of the species. the Gulf sturgeon. the designation on the Chickasawhay In their analysis of Gulf sturgeon The definition of critical habitat in River in Mississippi. However, we subpopulations from eight drainages section 3(5)(A) of the Act includes ‘‘(I) believe that what we proposed for the along the Gulf of Mexico for genetic specific areas within the geographic area Gulf sturgeon including the portion of diversity, Stabile et al. (1996) identified occupied by a species, at the time it is the Chickasawhay River proposed for five regional or river-specific stocks listed in accordance with the Act, on designation, includes sufficient habitat (from west to east)—(1) Lake which are found those physical or to conserve the species. Accordingly, we Pontchartrain and Pearl River, (2) biological features (I) essential to the have not made the requested change. Pascagoula River, (3) Escambia and conservation of the species and (II) Moreover, areas outside the critical Yellow Rivers, (4) Choctawhatchee which may require special management habitat designation will continue to be River, and (5) Apalachicola, considerations or protection; and (ii) subject to conservation actions that may Ochlockonee, and Suwannee Rivers. specific areas outside the geographic be implemented under section 7(a)(1) All five genetic stocks are represented area occupied by a species at the time and to the regulatory protections by the seven subpopulations occupying it is listed, upon a determination that afforded by the section 7(a)(2) jeopardy the critical habitat units. The number, such areas are essential for the standard and the section 9 take distribution, and range of the seven Gulf conservation of the species.’’ By prohibitions. sturgeon subpopulations included in definition, essential critical habitat Comment 3: One peer reviewer these units are necessary to protect and generally describes a subset of the area questioned whether all Gulf sturgeon support the extent and diversity of the potentially containing primary overwinter in the marine and estuarine species’ genetic integrity and can constituent elements for a species. As environment and what the potential provide a rescue effect, if needed (see discussed in the methods section of the impacts on the population would be if ‘‘Methods’’ section). We believe that proposed and this final rule, to critical habitat had a temporal these seven river systems, with their determine areas essential for the component to its designation. associated estuarine and marine conservation of the Gulf sturgeon, we Our Response: A few Gulf sturgeon environments, represent habitat that is used the best scientific data available have been documented remaining at or essential for the conservation of the Gulf pertaining to known habitat near their spawning grounds throughout sturgeon. requirements of the species. Areas the winter (Wooley and Crateau, 1985; Comment 5: Four commenters, designated as critical habitat for the Gulf Slack et al., 1999; and Heise et al,. including one peer reviewer, noted that sturgeon are within the current known 1999a). However, this is an exception to the western boundary in Lake range of the species and contain one or the normal behavior of adult Gulf Pontchartrain (Unit 8) seemed arbitrary. more primary constituent elements sturgeon. During winter months, Response: Critical habitat areas in essential for the conservation of the juveniles often remain in the estuary Unit 8 provide juvenile, subadult and species. In our proposed and final near the river mouth, but adult and sub- adult feeding, resting and passage designation of critical habitat, we adults leave the riverine habitat to habitat for Gulf sturgeon from the selected essential habitat areas that forage in the estuarine and marine areas. Pascagoula and Pearl Rivers currently contain populations or Critical habitat has no temporal subpopulations. Lake Pontchartrain is provide habitat components essential to boundaries, only spatial. If an area is divided into eastern and western areas the conservation of the species. During designated as critical habitat, it receives by the Lake Pontchartrain Causeway (a this analysis, it was determined that equal protection throughout the year twin highway bridge supported by some areas containing one or more regardless of the presence or absence of pilings extending 33.6 km (20.9 mi) primary constituent elements did not the species. from the north to the south). Gulf Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13377 sturgeon from the Pearl River Wooley and Crateau, 1985; Clugston et regarding Gulf sturgeon food items and subpopulation have been documented al,. 1995; Morrow et al., 1998a; Heise et foraging locations. (by tags) to use the eastern half of Lake al, 1999a; Sulak and Clugston, 1999; Comment 10: Commenters wondered Pontchartrain. Researchers believe that and Ross et al., 2000). Gu et al. (2001) what we know of Gulf sturgeon’s overall the eastern portion of the lake provides tested the hypothesis that subadult and use of estuarine and marine waters. important winter habitat for juveniles adult Gulf sturgeon do not feed Our Response: While research and subadults, and they have located significantly during their annual indicates that Gulf sturgeon utilize tagged individuals in Lake residence in freshwater by comparing estuarine and marine areas for staging, Pontchartrain and have repeatedly stable carbon isotope ratios of tissue resting and foraging, researchers caught untagged sturgeon between samples from subadult and adult Gulf continue to investigate Gulf sturgeon Goose Point and Point Platte, an area sturgeon and their potential freshwater over-wintering behavior and locale. We believed to be used for winter feeding. and marine food sources. A large are not able, at this time, to readily While Gulf sturgeon have been difference in isotope ratios between discern the Gulf sturgeon’s overall documented in the western portion of freshwater food sources and fish muscle utilization of marine and estuarine areas the Lake (generally near the mouth of tissue suggests that subadult and adult and we look forward to evaluating small rivers), it is not known whether Gulf sturgeon do not feed significantly additional information when it becomes those sturgeon are part of the Pearl and in freshwater. The isotope similarity available. Bogue Chitto Rivers spawning between subadult and adult Gulf Comment 11: Some commenters subpopulation, or if they are part of a sturgeon and marine food resources questioned whether we were smaller spawning subpopulation that strongly indicates that this species relies knowledgeable of Gulf sturgeon might exist within the Tickfaw, almost entirely on the marine food web migration routes. Tangipahoa, or Tchefuncte Rivers. We, for its growth (Gu et al., 2001). Our Response: We have identified and therefore, conclude that the eastern Comment 8: One commenter described Gulf sturgeon spawning portion, but not the western portion, of questioned whether fish tagging studies migrations from coastal/marine areas to Lake Pontchartrain provides essential were limited to adults or whether they the rivers; however, inter-riverine winter habitat for the Pearl River included other life stages as well. migratory patterns are not well subpopulation, as data supports Our Response: Juveniles (age 1 to 6 understood. When we could identify inclusion of the eastern portion of Lake years), subadults (age 6 years to sexual inter-riverine movements (mostly from Pontchartrain as critical habitat. maturity), and adults (sexually mature) telemetry data), we included Although the Lake Pontchartrain have been marked with different types appropriate inshore coastal waters in Causeway does not restrict fish of equipment, but primarily with T-bar the critical habitat designation to movement, it does provide an tags (external) and passive integrated provide protection for migrating appropriate and easily identifiable transponder (PIT) tags (internal). Young- sturgeon (e.g., Unit 11). Research is boundary. of-the-year less than 20 cm (7.8 inches) ongoing to investigate Gulf sturgeon Public Comments tail length are too small to tag with the inter-riverine migrations (e.g., recording standard markers and therefore are broad movement patterns via satellite Issue A: General Biological Comments exclusively pit tagged (Mike Randall, tags), and researchers are presently Comment 6: One commenter believes USGS, pers. comm. 2002). collating data to analyze Gulf-wide that forestry practices (e.g., the use of Comment 9: Four commenters had movements. questions regarding Gulf sturgeon prey silvicultural Best Management Practices Issue B: Site-specific Biological items and foraging areas. and application of streamside Comments management zones, to protect surface Our Response: As stated in the water quality during forestry operations) proposed rule (67 FR 39107), the diet of Comment 12: One commenter actively contribute to the conservation the Gulf sturgeon depends on its life questioned whether any areas south of of the Gulf sturgeon by providing an history stage. While adults are not the Suwannee River in Florida were important incentive for private known to forage in freshwater, juveniles historic critical habitat for Gulf landowners to retain forested riverine and young-of-the-year do. We have used sturgeon. corridors adjacent to sturgeon habitat. data from stomach content analysis and Our Response: Since this is the first Our Response: We agree that Best telemetry studies to identify probable critical habitat designation for the Gulf Management Practices when applied Gulf sturgeon foraging areas, i.e., those sturgeon, we presume that the correctly to silvicultural activities do areas with substrate that supports the commenter is asking whether areas protect and improve the quality of known prey items, coupled with south of the Suwannee River were of surface waters and, therefore, do tracking data indicating sturgeon importance to the Gulf sturgeon contribute to the conservation of the presence. We relied on two observations historically. There are few reported Gulf sturgeon. to conclude that subadult and adult Gulf sightings of Gulf sturgeon using rivers Comment 7: Some commenters sturgeon do not forage in freshwater: (1) south of the Suwannee River, but there questioned the basis of our statement Gulf sturgeon lose a substantial are historic and recent records of Gulf that adult Gulf sturgeon do not feed percentage of their body weight while in sturgeon in Tampa Bay and Charlotte while in freshwater. freshwater in summer and then Harbor. At one time, the Tampa Bay Our Response: As stated in the compensate for the loss during winter, area produced large commercial proposed and final rules (see ‘‘Feeding and (2) stable isotopes from sturgeon landings of Gulf sturgeon. There have Habits’’ section), many reports indicate muscle tissue and their potential marine been reported Gulf sturgeon sightings in that subadult and adult Gulf sturgeon food sources are similar, while there is the Florida Keys during winter months. fast and lose between 4 and 15 percent a large difference between muscle tissue Some biologists theorize that the of their total body weight while in and potential freshwater food sources. Suwannee River population of Gulf freshwater, and then compensate the Gulf sturgeon researchers and the sturgeon may winter in the Tampa Bay loss during winter feeding in estuarine Services are certain that the existing and Charlotte Harbor areas; however, and marine environments (Carr, 1983; data support these conclusions further research is needed in this area. 13378 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

Comment 13: Two commenters asked Chickamauga Creek, above Chattanooga, carefully crafted procedures specific to how we determined the upstream limit Tennessee. critical habitat designation. Further, the on the Suwannee River, and one Our Response: Historic information Douglas County Court held that the commenter stated that the published indicates that Gulf sturgeon did not critical habitat mandate of the Act literature does not report the use of the venture as far inland as Tennessee, so conflicts with NEPA in that, although Suwannee River upstream of 230 rkm we are fairly certain the large fish the Secretary may exclude areas from (143 rmi). captured in the fish traps were not Gulf critical habitat if such exclusion would Our Response: We received sturgeon. These fish may have been lake be more beneficial than harmful, the unpublished information from Gulf sturgeon (A. fulvescens) or shovelnose Secretary has no discretion but to sturgeon experts (Ken Sulak, USGS, sturgeon (Scaphirhynchus include areas in the designation if pers. comm. 2002; Jim Clugston, retired platorhynchus), although these species exclusion of such areas would result in USGS, pers. comm. 2002) of sightings of are uncommon, particularly in east extinction. This lack of discretion young-of-the-year Gulf sturgeon as far Tennessee. Paddlefish (Polyodon renders application of NEPA procedures upstream on the Suwannee River as to spathula), which attain weights of over (e.g., consideration of broad the confluence with Roaring Creek at 45 kg (100 lb) are found in the environmental impacts, alternatives 304 rkm (200 rmi). This is Tennessee River; however, additional analysis) superfluous (this lack of approximately 11 rkm (18 rmi) upstream information would be necessary to discretion to consider broad of the designated critical habitat, which clearly identify the species involved and environmental impacts was the basis for stops at 293 rkm (182 rmi). We believe none was provided by the commenter. the 6th Circuit’s determination that that the area known as Big Shoals on the Issue C: National Environmental Policy NEPA does not apply to listing Suwannee River captures the upstream- Act (NEPA) Compliance decisions under the Act, in Pacific Legal most significant spawning areas and, Foundation v. Andrus, 657 F2d 829 (6th Comment 16: One commenter stated therefore, we included upstream to this Cir. 1981)). The Court noted that the Act that the Services should withdraw the point. We have included the 0.31 rkm also conflicts with NEPA’s demand for proposed rule pending compliance with (0.50 rmi) of habitat upstream from Big impact analysis, in that the Act dictates NEPA, through preparation of an that the Secretary ‘‘shall’’ designate Shoals to the confluence with Long environmental assessment or an critical habitat for listed species based Branch for ease of identification. It is environmental impact statement (EIS). upon an evaluation of economic and correct that the published literature on The commenter stated that FWS’s other ‘‘relevant’’ impacts, which the the Suwannee River documents position that NEPA only applies to Court interpreted as narrower than spawning sites no further upstream than critical habitat designations in the 10th NEPA’s directive. Finally, the 9th at 230 rkm (143 rmi), but we have relied Circuit, based upon that circuit’s 1996 on the above unpublished literature decision in Catron County Bd. of Comm. Circuit, based upon a review of from reliable sources to determine the v. USFWS, 75 F.3d 1429, is unlawful. precedent from several circuits upstream limit on this system. The commenter stated that the two including the 5th Circuit, held that an Comment 14: Two commenters exceptions to NEPA compliance EIS is not required for actions that do requested that the Services omit areas identified by the 10th Circuit (i.e., not change the physical environment. adjacent to military lands from the unavoidable conflict between NEPA and In addition, we note that Federal designation under the Act’s section another statute or duplicative actions that might adversely affect 4(b)(2). The rationale presented procedures provided by NEPA and a critical habitat are not necessarily included proximity to a military base second statute) are not present in the prohibited. Many Federal actions may that is used for military testing and case of critical habitat designation. The adversely affect critical habitat without training, restricting military’s ability to commenter stated that the proposed the effect rising to the level of quickly respond to training and testing critical habitat rule was subject to NEPA destruction or adverse modification of due to long-lead time administrative because the effects of the designation the critical habitat. In those cases where considerations required for are broader than protecting habitat. we find that a Federal project would consultations, and reducing the number They believe that future Federal actions destroy or adversely modify critical of formal consultations performed by that are likely to adversely affect critical habitat, we must identify reasonable and the Services. habitat will be prohibited. They also prudent alternatives (RPAs) to the Our Response: The Department of believe that an environmental project that would avoid the destruction Defense (DOD) did not request that areas assessment may reveal a more effective or adverse modification (see ‘‘Effects of adjacent to military lands be excluded alternative to preventing extinction of Critical Habitat Designation’’ section). from critical habitat designation. In any the sturgeon than designating critical The RPAs must be capable of being case, we have no data indicating that habitat. implemented in a manner consistent these areas should be excluded. We Our Response: The Services believe with the intended purpose of the action, have been successfully and efficiently that in Douglas Co. v. Babbitt, 48 F.3d be consistent with the action agency’s conducting section 7 consultations with 1495 (9th Cir. 1995), the Court correctly legal authority and jurisdiction, and be military bases in these critical habitat interpreted the relationship between economically and technically feasible. areas for over 10 years, and we intend NEPA and critical habitat designation Issue D: Section 7 Consultation Issues to continue working as partners with the under the Act. The Ninth Circuit Court armed forces to uphold the Act without rejected the suggestion, identical to that Comment 17: One commenter compromising national security. We do raised by the commenter, that expressed concerns that the critical not foresee any impacts to military irreconcilable statutory conflict or habitat designation will make it more readiness as a result of the adjacent duplicative statutory procedures are the difficult for fisheries managers to critical habitat designation. only exceptions to application of NEPA sample for non-endangered fish in these Comment 15: One commenter to Federal actions. The Court held that rivers and fears they will be required to reported that unusually large fish have the legislative history of the Act apply for permits and provide annual been taken from a fish trap on the demonstrated that Congress intended to reports, and that in some cases, fishery Tennessee River near the mouth of displace NEPA procedures with activities may be stopped due to Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13379 sampling being conducted in areas spawning habitat on the Apalachicola from the States, as the critical habitat designated as critical habitat. River as a result of separate requests provisions of the Act apply to Federal Our Response: The Gulf sturgeon is a from the Georgia and Florida negotiators agencies and their actions only. Federal listed species and thereby protected to the ACF Compact. This information agencies acting in the ACF Basin are under the Act regardless of whether or is summarized in our response to obligated to comply with sections 7 and not critical habitat has been designated, comment 42. Our information was based 10 of the Act with or without an ACF therefore permits and annual reporting on a single set of measurements at one Compact, and the States are solely may be necessary if the activities being potential spawning site, and for reasons empowered to negotiate a water conducted for fisheries management summarized in our response to allocation formula for the ACF Basin may result in the incidental take of a comment 41, we do not characterize this with or without designated critical Gulf sturgeon. Given that the fish has information as ‘‘flow requirements habitat for the Gulf sturgeon. been federally protected for 10 years needed for critical habitat.’’ This Comment 22: The USACE’s Mobile and fisheries management in all states information is available to the public District expressed concern with throughout the Gulf sturgeon’s range has upon request. However, the U.S. Army potential requirements to alter reservoir proceeded unhampered, we are unclear Corps of Engineers (USACE) is operations at the Jim Woodruff Lock and as to the reasons for this concern. conducting more detailed surveys Dam on the Apalachicola River in Critical habitat designation may result intended to augment and refine our Florida, in order to support minimum in required project modifications only initial measurements and will use these flow for Gulf sturgeon spawning. They for activities with a Federal nexus and new measurements in preparing its are concerned that a critical habitat then only if the activity were to destroy biological assessment of the effects of designation could require substantial or adversely modify the primary Federal reservoir operations on upstream flow releases. constituent elements contained in the federally-protected species and their Our Response: As noted in the designated habitat (i.e., prey, spawning habitats. response to comment 42, preliminary habitat, water quality, water quantity, Comment 20: One commenter data suggest that if adjustments to sediment quality, or migratory passage). requested that the Services withdraw reservoir operations are reasonable and Comment 18: One commenter their proposed critical habitat prudent in the conservation of the questioned whether water quality issues designation for the Gulf sturgeon and sturgeon, such adjustments would likely may arise from the establishment of the instead address any needs of the species occur infrequently, since it appears that critical habitat and another requested in the context of the ongoing ACF flows do not limit sturgeon spawning that the existing government databases Compact process. habitat availability in most years on the be updated to reflect current water Our Response: The ACF Compact is a Apalachicola River. Under section quality of southern rivers, since water Federal law that authorizes, among 7(a)(2) of the Act, Federal agencies must quality has improved subsequent to the other things, the States of Alabama, avoid jeopardizing the continued historic decline of the species. Florida, and Georgia, but not the Federal existence of a species or the destruction Our Response: As required under government, to negotiate a water or adverse modification of designated section 7 of the Act, the Environmental allocation formula for equitably critical habitat. During the consultation Protection Agency (EPA) consults with apportioning the surface waters of the process, Federal agencies share us regarding water quality standards to ACF Basin. Under the leadership of the responsibility with us for determining ensure that they are protective of non-voting Federal Commissioner to the what operational adjustments, if any, endangered and threatened species. The Compact, Federal agencies, including would be reasonable and prudent for EPA anticipates consulting with us the Services, have provided technical sturgeon conservation. We acknowledge every three years as part of its triennial assistance to the States’ negotiators on that the USACE must consider its review of State delegated water quality various water management issues, responsibilities for flood control, power standards for Alabama, Florida, including the needs of species protected generation, navigation, water quality, Mississippi, and Louisiana under under the Act. The State negotiators are other fish and wildlife, etc., as well as section 303(d) of the Clean Water Act. not obligated to act upon any such listed species conservation, in making During each review period all data technical assistance, and the Compact its operational decisions, and we relative to Gulf sturgeon and water does not relieve Federal agencies, appreciate the complexities of these quality will be updated and reviewed to including the Services, of decisions. ensure that the standards continue to be responsibilities under other Federal Comment 23: One commenter protective. The EPA recently released a statutes or court rulings. This rule objected to critical habitat designation new database on the water quality of the designating critical habitat fulfills our because it would impede construction nation’s rivers. This information is requirements under the Act and the of any dam deemed necessary by the available on its web site (www.epa.gov). order of the Court of public for water supply, flood control, Future consultations will consider Appeals for the Fifth Circuit. and recreation. impacts to Gulf sturgeon and associated Comment 21: One commenter stated Our Response: The Act’s requirements critical habitat, and will take changes in that by designating the Apalachicola regarding proposed and designated water quality into account. River as critical habitat for the Gulf critical habitat apply only to Federal Comment 19: One commenter sturgeon, the Federal government actions, such as constructing Federal questioned whether the FWS provided necessarily becomes involved in the reservoirs or issuing Federal permits for information on flow requirements water negotiations for the ACF Compact non-Federal reservoirs (e.g., a Clean needed for critical habitat in the and usurps authority from the State of Water Act section 404 permit). For such Apalachicola, Chattahoochee, and Flint Georgia to negotiate stream flows in that actions, the Federal agency’s Rivers (ACF) negotiations and whether river basin. responsibility is to consult with us to such information was available to the Our Response: State and Federal roles ensure that its actions are not likely to public. under the ACF Compact are quite jeopardize the continued existence of Our Response: The FWS presented distinct, as noted in our response to listed species or destroy or adversely information about the hydrological comment 20, and this rule in no way modify designated critical habitat. characteristics of potential sturgeon alters those roles. No authority is taken Reasonable and prudent alternatives to 13380 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations avoid jeopardy or critical habitat assessments are highly site and fact awareness and offer additional destruction resulting from reservoir specific and the information about the educational and informational benefit. construction, or reasonable and prudent species and its habitat is continually Our Response: Critical habitat measures to minimize take resulting expanding. Therefore, whether the provides non-regulatory benefits to the from reservoir construction, would ‘‘appreciably diminish’’ threshold has species by informing the public (via depend entirely on the size, location, been met is a consultation-specific newspaper articles, newspaper notices, and operational plan of the reservoir determination. public meetings, public hearings, etc.) of and its effects on the primary Comment 25: One commenter areas that are important for species constituent elements (e.g., flow regime, expressed concerns that the critical recovery and where conservation water quality, passage). Reservoirs habitat designation will prevent actions would be most effective. constructed downstream of spawning maintenance dredging which is required Designation of critical habitat helps habitat would have far different and for continued use of the Gulf focus conservation activities for a listed likely greater impacts than those (GIWW). species on the areas that contain the constructed upstream of spawning Our Response: Gulf sturgeon physical and biological features that are habitat or on tributaries. migration and feeding may occur within essential for conservation of that Comment 24: Three commenters the GIWW in some of the proposed species, and alerts the public and land- requested clarification and examples of units. As stated in the proposed rule (67 managing agencies to the importance of specific activities that may affect FR 39114), portions of the GIWW that those areas. essential features of the designated area, consist primarily of excavated land cuts Issue F: Methods a quantitative definition or explanation and canals have been excluded from Comment 29: One commenter of ‘‘appreciably reduce,’’ and this designation because they were not suggested that we have not included information on how we intend to available to the species historically, and unoccupied habitat upstream of dams in quantify the degree of impacts. One therefore, are not considered to be commenter requested that a mechanism the Apalachicola River Basin and the essential for the conservation of the Hillsborough River Basin because access be developed to assess the severity of species. the action based on the ability of the is not available. The commenter The GIWW requires periodic dredging believes that these areas may be impacted area to recover as viable by the USACE to maintain safe and habitat. essential to the conservation of the adequate passage. As stated in the Our Response: The value of critical species. proposed rule (67 FR 39125), dredging habitat is appreciably diminished when Our Response: The commenter an action considerably reduces the is an action that may destroy or provided no data to support why these capability of designated or proposed adversely modify Gulf sturgeon critical two areas may be essential. Further, we critical habitat to satisfy requirements habitat. We will work closely with the have no historic records of Gulf essential to the conservation of a listed USACE to identify appropriate measures sturgeon using the Hillsborough River. species. We continue to consult with to reduce dredging impacts to Gulf Areas upstream of water control agencies to determine the effects of an sturgeon critical habitat while allowing structures were included elsewhere action on the primary constituent maintenance dredging to continue in the because they contain the only known elements within the designated critical GIWW without interruption. suitable spawning habitat for a habitat by utilizing the best available Issue E: Public Involvement subpopulation that shows evidence of scientific data. It is our intent to reproduction, and therefore, were carefully assess each proposed project Comment 26: Three commenters had deemed essential to the conservation of within Gulf sturgeon critical habitat and questions and concerns regarding the species. We believe there is analyze how the proposed action may boating and sturgeon with regard to sufficient habitat downstream of the Jim impact (both directly and indirectly; records of boat strikes on sturgeon and Woodruff Lock and Dam on the both temporally and spatially) those options for regulating boat speed. One Apalachicola River to sustain a physical or biological features that were commenter stated that critical habitat is population of Gulf sturgeon. We believe the basis for determining the habitat to just another way to impose restrictions that what we have designated for the be critical. As stated in the proposed and regulations on the boating public. Gulf sturgeon is based on the best rule, actions that may destroy or Our Response: Regulating speed of available scientific information and adversely modify Gulf sturgeon critical boats to prevent sturgeon injury or death includes what we consider to be habitat may include, but are not limited would be an issue related to ‘‘take’’ of essential to the conservation of the Gulf to, dredging; dredge material disposal; Gulf sturgeon and not related to critical sturgeon. channelization; in-stream mining; land habitat. Boat speed is unlikely to have Comment 30: The Services intend to uses that cause excessive turbidity or any significant effect on primary protect spawning habitats from sedimentation; water impoundment; constituent elements for Gulf sturgeon. catastrophic occurrences by including hard-bottom removal for navigation Comment 27: One commenter asked both the main stem spawning sites and channel deepening; water diversion; how anyone can be of help in our at least one tributary site. One dam operations; release of chemicals, project of recovery and designation of commenter asked why we included just biological pollutants, or heated effluents critical habitat for the Gulf sturgeon. one tributary site. into surface water or connected Our Response: Maintaining a natural Our Response: Each subpopulation for groundwater via point sources or vegetative buffer along streams and which critical habitat was designated dispersed non-point sources; release of rivers, and participating in watershed had historic records of sturgeon using a chemical or biological pollutants that conservation groups that work on mainstem river and at least one accumulate in sediments; and other protecting and restoring river and bay additional tributary. We included at physical or chemical alterations of habitat help conserve the sturgeon’s least one tributary for relief from channels and passes. Note, however, critical habitat. potentially catastrophic events. that these same activities may be carried Comment 28: One commenter Including additional tributaries without out in a way that does not destroy or wondered how the critical habitat historic records was not feasible because adversely modify critical habitat. Such designation would raise public we have no indication that the sturgeon Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13381 would use these areas, and therefore, no subpopulation; usage of the sturgeon. These life stages require evidence that they are essential to the Chickasawhay River, a major tributary habitat for summer resting or staging conservation of the species. When data to the Pascagoula River, was recently areas, juvenile feeding, entire young-of- documented fairly recent use of documented; spawning was confirmed year life cycle (including larval stages), additional tributaries, those tributaries in 2001 at five locations on the passage throughout the river (protects were included. For example, the Escambia River; young-of-year have all life stages), and passage into and out Pascagoula River subpopulation has been confirmed on the Yellow River of estuarine habitat for adults and sections of the Bouie River, the Leaf system and population estimates are 580 subadults. All of the selected areas are River, and the Chickasawhay River Gulf sturgeon 1 m (3.3 ft) or greater in known to be used by Gulf sturgeon for designated as critical habitat because size; additional suitable spawning sites some portion of their life cycle. data support sturgeon use. were documented on the Apalachicola Subadult and adult sturgeon use Comment 31: One commenter asked if River in 2002; and between 1993 and estuarine and marine areas for feeding any of the proposed critical habitat is in 1998, additional spawning sites were and passage between river systems. the State of Georgia. confirmed on the Suwannee River Designation of critical habitat units in Our Response: No. Although the population. We believe that what we estuaries and bays adjacent to the historic range of the Gulf sturgeon have designated for the Gulf sturgeon is riverine units described above would includes the , and possibly based on the best available scientific protect both passage of sturgeon to and parts of the , we information and includes those areas from their feeding and spawning determined that none of the historic essential to the conservation of the Gulf grounds and also the abundance of habitat in Georgia is essential to the sturgeon. estuarine and marine prey for juvenile conservation of the Gulf sturgeon. Comment 34: Three commenters and adult sturgeon. Comment 32: One commenter requested that the Services provide Specific references used for making suggested that the critical habitat additional detail or quantify the specific our determination are cited throughout designation should be limited to a few habitat requirements for each life the ‘‘Background’’ and ‘‘Critical Habitat specific areas within the range of the history stage, specifically abundant Unit Descriptions’’ sections of the Gulf sturgeon that are most important to prey, flow regime, water temperature, proposed and final rules. A complete their continued survival (e.g., spawning salinity, pH, oxygen content, etc. list of all references cited is presented areas, nursery areas, summer holding Our Response: We have summarized in the ‘‘References Cited’’ section of this areas, and fall and winter foraging the current knowledge of the species, final rule. areas). including life history requirements in Our Response: We considered the the ‘‘Background’’ section of this rule. Comment 36: One commenter stated biological basis for a more site-specific However, data are not yet available to that the areas included in the proposal approach and concluded that it would more quantitatively express the primary are those where studies have been not secure all biological features constituent elements of Gulf sturgeon directed toward sturgeon and that it essential for the conservation of the critical habitat. To make the critical should not be assumed that other rivers species. The site-specific approach habitat rule adaptive to increasing do not have critical habitat just because would neglect the importance of a knowledge, we have kept the primary sturgeon have not been found in routine migration corridor between spawning, constituent elements general. When fishery surveys. They also stated that resting, and feeding areas. Also, young- consultations on projects occur, routine fishery surveys can and have of-year and possibly juvenile sturgeon biologists will use the best available missed the presence of sturgeon. (less than 5 kg (11 lbs) (Mason and science available at the time of Our Response: We have based our Clugston, 1993)) actively forage consultation to determine whether the designation on the best scientific data throughout the riverine system. functions of those elements would be available. However, the level of research Comment 33: One commenter adversely modified by the proposed and status surveys conducted on many requested that we discuss our rationale Federal action. Research is ongoing, and subpopulations is limited. Because of for not designating unoccupied areas as those data are collected, we expect to the limited availability of data specific when the Services had previously stated understand better Gulf sturgeon and its to each river system and specific to the that unoccupied habitat would be life history requirements. Gulf sturgeon’s use of the marine and necessary for Gulf sturgeon recovery. Comment 35: One commenter stated estuarine environment, we acknowledge Our Response: As we stated in the that habitat is identified primarily for that habitat other than that identified in proposed rule, since approval of the adults (spawning sites, resting areas, this final rule may later be found to be Recovery Plan in 1995 and our 1998 winter feeding), but not for larvae, essential to the conservation of Gulf ‘‘not prudent’’ finding, the science of juvenile, and subadult life stages. S/he sturgeon. To the extent feasible, we will conservation biology has matured. The also suggested a need to cite specific continue to conduct and support methods section cites numerous recent studies rather than using the term surveys, research, and conservation publications that contributed to our ‘‘gathered all available’’ data. actions on the species and its habitat in decision to select the areas we did and Our Response: The commenter is areas designated and not designated as why they constitute habitat sufficient referring to statements in the ‘‘Methods’’ critical habitat. If additional information for the conservation of the species. We section, which is written in general becomes available on the species’ have also collected significant new terms to explain how we decided which biology, distribution, and threats, we biological information on this species. riverine, estuarine, and marine areas to will evaluate the need to designate For example, we now have a better include as critical habitat. We disagree additional critical habitat, delete or understanding on status of the Pearl with the commenter that the rule reduce critical habitat, or refine the River system subpopulation; we are ignores life stages besides the adult boundaries of critical habitat. Gulf confident that adult Gulf sturgeon are stage. We stated in the proposed rule sturgeon in areas not included as critical accessing spawning habitats above Pools that we included riverine habitat from habitat will continue to receive Bluff Sill and Bogue Chitto Sill during the river mouth up to and including protection under the section 7 jeopardy high flows; spawning was confirmed in spawning grounds to provide sufficient standard and the section 9 prohibitions 1999 on the Pascagoula River habitat for the riverine life stages of Gulf on take. 13382 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

Comment 37: One commenter major portion of their lifetimes on land attributable to critical habitat suggested that we clarify our use of and/or in fresh water. designation. vague terms in the proposed rule (e.g., While the MOU does not contain Comment 41: One commenter raised strongly suspect, believed to appear, specifics on jurisdictional boundaries questions about impacts to Federal possibly appropriate, relatively for critical habitat, the Services have hydropower generation in the ACF sediment free). applied the standard set for listing Basin. Without specific details as to the Our Response: We appreciate the species to this critical habitat rule—that minimum and maximum flows commenter’s sentiments. However, it is is, NMFS will have jurisdictional necessary for spawning and other flow- seldom possible to make statements responsibility for marine waters and the related habitat questions, the with complete or even relative certainty FWS for fresh water. In estuarine commenter contends ‘‘the economic when describing the biological and waters, the Services will consult based ramifications of this proposal cannot be habitat requirements of an endangered on their respective expertise as properly considered, as required by or threatened species. We have described in the proposed rule. Under law.’’ expressed ourselves as definitively as this arrangement, the FWS will consult Our Response: We agree that a possible using the best available with the EPA since it has expertise in meaningful assessment of economic scientific data, recognizing the need for water quality issues, and the NMFS will impacts that could result from consultation-specific flexibility over consult with the USACE to maximize modifying the operations of the time as new information is developed efficiency for the action agency when USACEs’ ACF reservoirs to avoid or about the species and its habitat. other federally protected species may be minimize impacts to Gulf sturgeon habitat in the Apalachicola River is not Comment 38: Two commenters present (e.g., protected sea turtles which possible at this time because too many requested clarification of the lateral fall under the jurisdiction of NMFS in variables, such as those listed by the extent of the critical habitat unit marine and estuarine waters). commenter, are unknown. Based on the descriptions in the estuarine and marine Issue H: Economic Analysis limited data that are currently available areas; clarification of our mean high about the flow rates that inundate water line determination, and Comment 40: One commenter potential spawning habitat, the FWS clarification of our use of an average supported the two-baseline approach to believes that any reasonable and high water calculation over an 18.6 year the economic analysis used by the prudent adjustments to ACF project period rather than using all available Services, and went on to suggest that the operations to protect sturgeon spawning lower baseline, that identifies costs tidal data. would be infrequent. As a result, the solely attributable to critical habitat Our Response: Regulatory jurisdiction costs over time to project purposes such in coastal areas is administered by the designation, need not be included in the as hydropower would be relatively USACE and is described in 33 CFR analysis to be responsive to the decision small. The basis for this preliminary 329.14(a)(2) as ‘‘the line on the shore in New Mexico Cattle Growers determination and a brief description of reached by the plane of the mean Association v. USFWS, 248 F.3d 1277 the informal consultation that is (average) high water (MHW).’’ 33 CFR (10th Cir. 2001). The commenter underway between the USACE and the 329.14(a)(2) further states that when paraphrased the 10th Circuit’s holding FWS about ACF project operations precise determination of the MHW line as requiring that costs resulting from the effects on sturgeon follows. is necessary, it is preferable to average listing of a species must be considered Possible flow-related limitations to tidal data over a period of 18.6 years, along with the costs of critical habitat spawning habitat in the Apalachicola which is a Metonic cycle, i.e., the period designation in determining whether the River were not recognized until the in which new and full moon recur in costs of such designation outweigh the spring of 2002, when project operations the same order and on the same days as benefits. The commenter went on to and unusually low basin runoff entering in the preceding cycle. support the inclusion of costs associated the fourth year of a regional drought with both jeopardy consultations and Issue G: Jurisdiction exposed limestone outcroppings and adverse modification consultations, and other hard-bottom portions of the main Comment 39: Three comments were resulting project modification costs, in channel. These hard-bottom areas, received on the proposed jurisdictional the economic analysis, stating that the which likely support spawning by the responsibilities for the management of full spectrum of impacts associated with small Apalachicola sub-population, are the Gulf sturgeon. Two commenters the listing and critical habitat inundated during the spring months of believe that FWS, instead of NMFS, designation presents a more realistic most years by the combination of should have jurisdiction in the estuarine and comprehensive understanding of unregulated basin runoff and the areas, and one commenter requested probable impacts in the affected region. USACEs’ operations of the ACF clarification on the technical basis for Our Response: In New Mexico Cattle reservoirs for project purposes other determining areas of regulatory Growers Association, the 10th Circuit than the conservation of species and jurisdiction in coastal areas. ruled that the full costs of critical habitats protected under the Act. On Our Response: In 1974, a habitat designation must be captured in May 2, 2002, FWS personnel surveyed memorandum of understanding (MOU) an economic analysis performed in a site near where sturgeon larvae were was developed to clarify jurisdictional accordance with section 4(b)(2) of the collected in 1977 (Wooley et al., 1982) responsibilities for the NMFS and FWS. Act, and thus that costs that might be and 1987 (Foster et al., 1988). FWS Section 1(a) of the 1974 MOU outlines incurred co-extensively as a result of estimated the maximum discharge that jurisdiction by waterbody and states both listing and critical habitat would fully expose the outcropping and that all non-mammalian species, with a designation must be included in the the minimum discharge that would fully few exceptions not including Gulf analysis. For example, projects that inundate it. These estimates were 173 sturgeon, that reside the major portion might modify spawning habitat of Gulf cubic meters per second (cms) (6,118 of their lifetime in estuarine waters shall sturgeon would give rise to a cubic feet per second (cfs)) and 317 cms be under the jurisdiction of the NMFS. consultation on both jeopardy and (11,200 cfs), respectively. The minimum Similarly, the FWS would have adverse modification grounds, and the depth at which Gulf sturgeon eggs have jurisdiction over species that spend the costs of such consultations must be been collected is 1.4 m (4.6 ft) (Fox et Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13383 al., 2000). The estimated discharge formal consultation with the FWS. Until estimated costs of consultations on corresponding to 1.4 m (4.6 ft) this consultation is completed, it is projects that the consulting Federal inundation of the bottom of the premature to make estimates of its agencies advised were likely to be limestone shelf was 424 cms (14,970 economic impact, which is dependent implemented in the next 10 years. Thus, cfs), and 612 cms (21,610 cfs) for the top on the results of studies that are still the uncertainty in the analysis would be of the shelf. During the March 15 to May underway and on USACE decisions attributable to unforseen or uncertain 15 timeframe, when sturgeon spawning relative to reservoir operations that will projects and their impacts, as well as a most likely occurs, daily average flow weigh its responsibilities under the Act lack of detail about each projected rates have exceeded 424 cms (14,970 with other statutory responsibilities. project, and there is no way to address cfs) and 612 cms (21,610 cfs) 87 percent Comment 42: One commenter stated this uncertainty in any non-speculative and 63 percent of the time, respectively, that the economic analysis does not manner. in the 1929 to 2002 flow record of the provide sufficient information to Comment 44: The Mobile and New Chattahoochee gage. March 15 to May determine if the benefits of exclusion Orleans Districts of the USACE raised 15 average discharge exceeds these flow outweigh the benefits of inclusion of questions regarding the economic rates in 97 percent and 77 percent of the individual critical habitat units. The analysis’ incorporation of dredging years, respectively. comment goes on to ask whether windows as potential project If flow rates between 424 cms (14,970 inclusion of any unit would materially modifications. cfs) and 612 cms (21,610 cfs) are affect the recovery of the Gulf Sturgeon, Our Response: Based on comments sufficient for successful sturgeon and requests that the Services provide a received from the USACE and further spawning on the Apalachicola River, metric by which to determine whether analysis by the Services, the economic any adjustments to reservoir operations inclusion of any unit is economically analysis has been modified by removing that appear reasonable and prudent for warranted. dredging windows as potential project sturgeon conservation would occur Our Response: Section 4(b)(2) of the modifications that would be included in relatively infrequently, during the Act directs that critical habitat, areas each formal consultation and omitting occasional years when spring-time containing biological and physical estimated costs of such. These changes hydrologic conditions and operations features essential to the conservation of reflect the extreme improbability that for other project purposes do not the species, shall be designated after dredging windows would be provide flows in this range. However, taking into account the economic recommended or adopted as a project this flow range is based on one set of impacts and other relevant impacts of modification to reduce impacts to measurements at one site and relies such designation. The Secretaries of the critical habitat (as opposed to upon the minimum depth at which eggs Interior and Commerce have the preventing take), given the availability have been previously collected (4.6 discretion to exclude areas from such of other means of protecting sturgeon or feet); other sites with different designation if the benefits of exclusion its habitat with adequate coordination hydrologic characteristics may support outweigh the benefits of inclusion, and planning between the USACE and spawning and depths less than 4.6 feet unless failure to designate such areas us. may allow for successful spawning. will result in the extinction of the Comment 45: Several commenters Annual monitoring of the Apalachicola species concerned. This language does expressed concerns over the potential sturgeon population by net sampling not establish a test of whether inclusion effects of critical habitat designation on shows year classes represented for all is ‘‘economically warranted.’’ water flow regimes in the Apalachicola years from 1986 to 1998. In none of Comment 43: One commenter River, and whether needs to alter flow these years were all days in the March suggested that uncertainty over the regimes to protect sturgeon or its habitat 15 to May 15 time frame greater than spatial and temporal scale that would be might impose costs by impacting 612 cms (21,610 cfs), but all of these involved in future application of the hydropower or businesses and years had at least 11 days greater than destruction or adverse modification recreation dependent on existing 612 cms (21,610 cfs). In 2002, no days standard should be acknowledged, that reservoirs (e.g., Lake Sidney Lanier). from March 15 to May 15 had flow costs could depend upon whether that Our Response: Section 3.4 of the greater than 612 cms (21,610 cfs). We standard is applied to the designated economic analysis has been revised to will not know for 3 years, when year critical habitat as a whole, within more fully discuss the factors associated class 2002 individuals would become individual units, or some other scale, with estimating economic impacts large enough to sample with the nets and whether the standard would be related to flow regime modifications used in annual monitoring, whether the triggered by temporary or long term that may emerge from consultation with unusually low spring flows of 2002 impacts. the USACE as reasonable and prudent resulted in a lost year class. Our Response: The Gulf sturgeon’s for the sturgeon and its habitat in the The USACE and FWS have initiated affinity for natal river systems and the Apalachicola River. Conservation of a study of sturgeon spawning habitat in importance of every breeding unit of the listed species is one of many the Apalachicola River that will provide species suggests that individual units or responsibilities the USACE must a more complete relationship between groups of units that are used by stocks consider in operating the Apalachicola flow and habitat availability than the or subpopulations which fulfill essential Basin reservoir projects, which are single site measured by FWS in May geographic distribution requirements variously authorized for the purposes of 2002. The USACE will use the results of are the appropriate scale for the flood control, hydropower, navigation, this study and other information in a analysis. The outcome of each recreation, water quality, water supply, biological assessment of the effects of its destruction or adverse modification and fish and wildlife. Changing current operations on the sturgeon, its analysis is highly fact specific, reservoir operations for sturgeon proposed critical habitat, and other dependent not only upon the species conservation could affect the degree to federally-protected species. This and designated critical habitat at issue, which the USACE is able to fulfill other assessment will determine whether but also upon the particular project and project purposes; however, under current operations may adversely affect its impact upon the primary constituent normal and wet rainfall conditions, federally-protected species and their elements of the critical habitat. The existing operations appear adequate to habitats and if so, serve to initiate economic analysis for this rule protect the sturgeon and its habitat. If 13384 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations project operations do not release enough Waterborne commerce is unlikely to around the use of contingent valuation water, as is the case during droughts, be affected by the critical habitat methodology. Therefore, the economic spawning habitat may be exposed or too designation because all available analysis in Section 5.2 has been revised shallow for sturgeon to use successfully. evidence indicates that future to better explain the relevance of these The USACE and FWS are presently in operations and maintenance navigation values to this critical habitat informal consultation on the effects of projects will proceed without changes to designation, by including a fuller ACF reservoir operations on federally- timing and scope. Moreover, the explanation of contingent valuation listed species, and are investigating the frequently maintained portions of the methodology, and adding more detail to relationship between flow and sturgeon major shipping channels located within the discussion and exhibits relating to spawning habitat availability in the the critical habitat designation are the economic literature on valuation of Apalachicola River. Although these altered to an extent that any primary natural resources such as threatened studies are not yet completed, the FWS constituent elements for sturgeon that and endangered species, and the believes that project modifications for are still present in the channels are applicability of the benefits transfer sturgeon conservation would likely unlikely to be appreciably diminished methodology. represent reasonable minor adjustments from their current baseline by Federal Comment 49: Two comments stated to existing operations that would actions in the channels. Portions of that the economic analysis presented a minimize the impacts of unavoidably shipping channels that are not flawed analytical approach in ignoring adverse conditions. The economic frequently maintained and new dredge the time value of money and present analysis concludes that the effects of material disposal sites likely contain values. such modifications on the regional one or more primary constituent Our Response: The economic analysis economy would be small (less than 0.1 elements and therefore have a higher has been modified (see Section 4.3) to percent). likelihood for project modifications to include the present value of the total Comment 46: Several commenters be recommended. estimated costs of the critical habitat suggested that the economic analysis No limitations to commercial fishing designation, using 2 discount rates in did not adequately address secondary activities are expected to result from order to provide a measure of sensitivity impacts of critical habitat designation section 7 consultations pertaining to analysis. The economic analysis now on the economy on a regional scale. Gulf sturgeon (see Section 3.4.3 of the also presents annualized cost estimates These commenters expressed concerns economic analysis). for the 10 year period considered for Past consultations and available about impacts on the shipping and this designation. evidence do not indicate that county- Comment 50: Two comments state navigation industries and their support wide economies or employment will be that the economic analysis fails to meet services, on future commercial and impacted by this critical habitat requirements for economic analyses, industrial development, and on designation (see Section 3.4.4 of the including using inappropriate and commercial fishing, particularly shrimp economic analysis). archaic research techniques. fishing. Comment 47: One Mississippi County Our Response: We believe that the Our Response: Section 2.1 of the Commissioner expressed concern over methodology used is appropriate for and economic analysis has been revised to closure of a shipping channel through consistent with the analysis of economic provide more information on the current Little Lake and the lower Pearl River, impacts required by the Act, which does level of economic activity in the areas and its impact on commercial not mandate a strict cost-benefit in or around the critical habitat navigation. analysis. The methodology used to designation. Specific information on Our Response: If the shipping channel produce the economic analysis has been State gross products and time series were closed, it would be attributable to peer-reviewed. We further believe that employment data have been added. litigation filed by the Tulane the research used is appropriate for the Regional data on waterborne economic Environmental Law Clinic over water analysis required by the Act, and activity, including waterborne quality certification, and not due to provides the best available scientific commerce, commercial fishing, sturgeon protection. Thus, no information available. Economic recreational fishing, other water-based modifications were made to the analyses are typically based on direct recreation, and hydropower generation economic analysis. conversations with the action agencies are more fully presented. Thus, the Comment 48: Two commenters stated regarding their expected future actions revised economic analysis provides an that the economic analysis should and costs. appropriate economic baseline against acknowledge the controversy Comment 51: One comment stated which to evaluate the significance of surrounding option and existence that it is unreasonable to predict zero section 7 costs associated with critical values and the methodologies available costs associated with project habitat designation. to estimate these values. One modifications attributable solely to After identifying and evaluating the commenter, the USACE, stated that it critical habitat designation. activities likely to give rise to section 7 does not allow these values to be Our Response: No information was consultations and thus direct costs of claimed in its economic studies provided, and none was available, critical habitat designation in section ‘‘because the academic community does regarding project modifications that 3.2, the economic analysis discusses generally not accept the procedures would be attributable solely to critical potential secondary impacts on the used to estimate them.’’ The USACE habitat designation, as opposed to being regional economy in section 3.4. Past went on to state that the studies attributed co-extensively to take of or consultations have not resulted in presented in the economic analysis are jeopardy to the species. project changes that have affected the not related to the Gulf sturgeon, the Comment 52: One comment stated regional economy, including the studies’ methods are not discussed, and that the economic analysis did not fully particular activities of concern to the inclusion of the information adds consider costs to the States that might commenters, and no comments nothing to the document. arise from consultations with EPA over provided specific examples of how Our Response: The final economic pollution discharge permits. future consultations would result in analysis notes the controversy that the Our Response: There is no evidence regional economic impacts. commenter discusses as revolving that past or future EPA projects have or Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13385 will be delayed due to consultations impact the commercial shrimp fishery, Issue J: Policy and Regulations regarding sturgeon protection. Current and if sturgeon are a bycatch of Comment 56: One commenter stated EPA water quality standards take shrimping. that the proposed action serves to protection of endangered and threatened Our Response: Shrimp trawling may provide an additional layer of species and their habitat, including Gulf impact both the Gulf sturgeon and its bureaucracy without any tangible sturgeon, into account. critical habitat. Shrimp trawling may benefits and appears to be a redundant Comment 53: One comment asserted directly affect Gulf sturgeon by and reaction to litigation filed against that the economic analysis should cover capturing them in trawl nets. There is the Services in 1994 by the Sierra Club at least a 20-year period. one documented non-lethal take of a Legal Defense Fund and the Florida Our Response: To be credible, the sturgeon during testing of a Turtle economic analysis must estimate Wildlife Federation. Three commenters Excluder Device (TED) equipped stated that the Services previously made economic impacts based on activities flounder trawl off Long Island, New that are reasonably foreseeable. The not prudent determinations regarding York; the Atlantic sturgeon was critical habitat and requested additional revised economic analysis does include approximately 1 m (3 ft) in total length, annualized cost estimates to 10 years. It information (data/biological factors) and and was released alive (J. Mitchell, detail to explain the Services change in is difficult to predict the costs of NOAA Fisheries, Pascagoula Laboratory, consultations on activities beyond a 10- position. pers. comm. 2002). In addition, a single Our Response: We had previously year window. Costs for section 7 sturgeon is reported in the NOAA consultations may increase or decrease determined that designation of Gulf Fisheries shrimping bycatch database sturgeon critical habitat was not prudent dependent on factors other than (E. Scott-Denton, NOAA Fisheries, inflation or deflation. For example, given that such designation would not Galveston Laboratory, pers. comm. benefit the species based upon a view changes in requirements for 2002) as taken by shrimp trawling; an development of a biological assessment that jeopardy and adverse modification Atlantic sturgeon was captured off may occur, or fluctuations in the cost of were essentially wholly overlapping Georgia (Atlantic Ocean) in 1995. biologists and consultants. In order to standards under the Act. After the Fifth Anecdotal information indicates that maintain reasonable confidence in the Circuit Court of Appeals rejected this while some sturgeon are taken by estimated total section 7 costs, the interpretation, as stated in the proposed shrimp trawlers, many fish are alive as analysis quantifies costs occurring rule (67 FR 39112), we have local researchers are often contacted so within a ten year time frame. However, reconsidered and found that designation they may tag and release the fish (H. the final economic analysis does will be clearly beneficial to the species. Rogillio, LADWF, pers. comm. 2002). include annualized cost estimates, to Recent research has determined and Currently shrimp fishers report fewer the extent that these may inform the qualified numerous areas important for sturgeon are being caught in the nets, commenter’s projections of costs over a Gulf sturgeon spawning, resting, staging, which may reflect escapement through 20-year period (see Section 4.3). and foraging. Many of these important Comment 54: A few commenters the TED or fewer incidents being areas are only utilized seasonally, and stated that the economic analysis may reported. Regardless of critical habitat, therefore not afforded the protection underestimate impacts on small the Gulf sturgeon was listed as a when the species is absent. By businesses secondarily impacted by threatened species under the Act on designating critical habitat, the Services consultations with Federal agencies. September 30, 1991, and it, therefore, is will be able to manage impacts to those Our Response: The courts have held protected wherever it occurs. Take of physical and biological features that the Regulatory Flexibility Act Gulf sturgeon that is not authorized (primary constituent elements) that are requires an agency to perform a (e.g., through a section 7 consultation or essential to the conservation of the regulatory flexibility analysis only when through an incidental take permit) is species regardless of the species a rule directly regulates them (Mid-Tex unlawful. presence or absence through the Elec. Coop, Inc. V. FERC, 773 F.2d 327 The most likely effect of shrimp consulting mechanism under section 7 (D.C. Cir. 1985) and American Trucking trawling on Gulf sturgeon critical of the Act. For example, other Federal Ass’ns, Inc. V. EPA, 175 F.3d 1027, 1044 habitat would be the disturbance of the agencies will be required to consult (D.C. Cir. 1991)). Accordingly, the benthic environment by trawling gear. with us on actions they carry out, fund, economic analysis considered the total This issue is being investigated at the or authorize, to ensure that their actions costs that may affect small entities NOAA Fisheries Galveston Laboratory. will not destroy or adversely modify through section 7 of the Act. Activities Until such time as conclusive data critical habitat. In this way, a critical likely to be impacted include those becomes available, any correlation habitat designation will protect areas associated with operation and between shrimp trawling and a negative that are necessary for the conservation maintenance of navigation projects, effect on Gulf sturgeon critical habitat of the species. It may also serve to highway bridge construction, and would be tenuous. While benthic enhance awareness within Federal pipeline construction projects. The molluscan and crustacean prey items agencies and the general public of the analysis found that less than one favored by Gulf sturgeon could importance of Gulf sturgeon habitat and percent of these industries in the region conceivably be disturbed as the shrimp the need for special management would be affected and that it was likely trawl passes over the bottom, a possible considerations. that most of the costs imposed by the effect of that disturbance would be to make them more susceptible to Summary of Changes From the designation would be passed through to Proposed Rule the Federal government as the predation by Gulf sturgeon, possibly government contracts for such services. enhancing foraging opportunities. Seven changes have been made from Although shrimp trawls may capture the proposed to the final rule Issue I: Potential Impact to Commercial Gulf sturgeon, and the benthos within designating Gulf sturgeon critical Shrimp Fishery critical habitat may be disturbed, there habitat—calculation of the total area Comment 55: Three commenters is little to suggest that shrimp trawling included in designation; inclusion of requested clarification on how significantly affects the Gulf sturgeon or identical amendments to both 50 CFR designation of critical habitat would its critical habitat at this time. parts 17 and 226; verification of bridge 13386 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations position in Unit 1; additional specifics Bridge was located on Mississippi (MS) found those physical or biological on fish location in Unit 2; and exclusion Highway 570. Since the sighting was 1.6 features (I) essential to the conservation of areas in Units 2, 8 and 9 under km (1 mi) upstream of Quinn Bridge of the species and (II) that may require section 4(b)(2) of the Act. (MS Highway 570), in the proposed rule special management considerations or For the proposed rule, river we ended the designation upstream of protection; and (ii) specific areas kilometers (and river miles) were Quinn Bridge at Lazy Creek to outside the geographic area occupied by measured with USACE mileage tables encompass the fish location and to a species at the time it is listed, upon (USACE, 1985a and b), when available boundary at an area easily identifiable. a determination that such areas are for a particular river reach. When not We now know that Quinn Bridge is essential for the conservation of the reported in the USACE mileage tables, located along MS Highway 44 (Estes et species. ‘‘Conservation’’ is defined in several Geographic Information System al. 1991), so in order to include the fish section 3(3) of the Act as the use of all (GIS) data layers were used to map all location and to boundary the methods and procedures that are units and to calculate mileages, designation at an area easily necessary to bring any endangered or including data from NOAA, identifiable, we have included up to MS threatened species to the point at which Environmental Systems Research Highway 570 in the unit, which is the listing under the Act is no longer Institute, Inc., and USGS. For the final first crossing north of MS Highway 44. necessary. rule, we still relied on the USACE See ‘‘Map 1.1’’ to clarify locations of MS mileage tables (USACE, 1985a and b) to Highly 570 and MS Highway 44. In order for habitat to be included in calculate mileages when available for a a critical habitat designation, the habitat particular river reach, but the remaining Unit 2 features must be ‘‘essential to the reaches were measured and mapped On the Bouie River, Forrest County, conservation of the species.’’ using the National Hydrography Dataset Mississippi, we received more specific When we designate critical habitat, from the USGS at a scale of 1:100,000 information during the comment period we may not have the information (2001–2002 data set). This data layer, on the location of a Gulf sturgeon necessary to identify all areas which are not available to us during the proposed captured above the gravel pits above essential for the conservation of the rule, is available for the entire range of Glendale Road in 1977. This fish was species. Nevertheless, we are required to the mapped Gulf sturgeon critical located approximately 0.80 rkm (0.50 designate those areas we know to be habitat and has a higher resolution than rmi) above Glendale Road, not further critical habitat, using the best the GIS data layers used for the upstream as originally believed. For information available to us. proposed rule maps. Greater resolution ease of identification, we have included results in the ability of the mapper to up to the southern-most road crossing of Within the geographic area of the see and measure more of the rivers Interstate 59 in the unit. We have, species, we have designated only natural bends, thereby resulting in therefore, reduced this river reach by currently known essential areas. We higher and more accurate river lengths. 14.5 rkm (9.0 rmi). will not speculate about what areas This change from using different data In the proposed rule, we inadvertently might be found to be essential if better layers resulted in an additional river provided different amendments to be information becomes available, or what mileage of 259 rkm (161 rmi), which is included in 50 CFR part 17 (FWS) and areas may become essential over time. If a more accurate reflection, in reported part 226 (NMFS). For the final rule we the information available at the time of total river kilometers and miles for all are making identical amendments to designation does not show that an area States, with no inclusion of additional both Parts. The amendment includes: (1) provides essential life cycle needs of the areas. Maps and textual unit descriptions of all species, then the area will not be In the proposed rule, we inadvertently 14 critical habitat units, (2) the primary included in the critical habitat provided different amendments to be constituent elements essential for the designation. Our regulations state that included in 50 CFR part 17 (FWS) and conservation of Gulf sturgeon, and (3) a ‘‘the Secretary shall designate as critical part 226 (NMFS). For the final rule we description of regulatory jurisdiction. habitat areas outside the geographic area are making identical amendments to The Services are also excluding major presently occupied by the species only both Parts. The amendment includes: (1) shipping channels in this unit, as when a designation limited to its Maps and textual unit descriptions of all identified on standard navigation charts present range would be inadequate to 14 critical habitat units, (2) the primary and marked by buoys, under Section ensure the conservation of the species’’ constituent elements essential for the 4(b)(2). (50 CFR 424.12(e)). Accordingly, when conservation of Gulf sturgeon, and (3) a the best available scientific data do not Unit 8 description of regulatory jurisdiction. demonstrate that the conservation needs Below are descriptions of unit- The Services are excluding major of the species require designation of specific changes. The changes stated shipping channels, as identified on critical habitat outside of occupied below do not include those attributed to standard navigation charts and marked areas, we will not designate critical our more fine-scale mapping from the by buoys, under Section 4(b)(2). habitat in areas outside the geographic proposed rule. Unit 9 area occupied by the species. Unit 1 The Services are excluding major Section 4(b)(2) of the Act requires that On the Bogue Chitto River, Pike shipping channels, as identified on we take into consideration the economic County, Mississippi, we reduced critical standard navigation charts and marked impact, and any other relevant impact, habitat in this river reach by by buoys, under Section 4(b)(2). of specifying any particular area as approximately 3.2 km (2 mi) due to an critical habitat. We may exclude areas error in what we believed to be the Critical Habitat from critical habitat designation when location of Quinn Bridge. We have Critical habitat is defined in section the benefits of exclusion outweigh the documentation of a Gulf sturgeon 3(5)(A) of the Act as (I) the specific areas benefits of including the areas within sighting 1.6 km (1 mi) north of Quinn within the geographic area occupied by critical habitat, provided the exclusion Bridge. In the proposed rule, we were a species, at the time it is listed in will not result in extinction of the given information that stated that Quinn accordance with the Act, on which are species. Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13387

Methods and Criteria Used To Identify Determining the Scale of the Final distinct drainage occasionally enter Critical Habitat Designation another river and also mix during the As required by section 4(b)(2) of the We first evaluated the Gulf sturgeon winter months in estuarine and marine Act and its implementing regulations in the context of its current distribution habitats, a genetic analysis of tissue (50 CFR 424.12), this final rule is based throughout the historic range to samples concluded that Gulf sturgeon on the best scientific information determine what portion of the range exhibit strong natal river fidelity, with available concerning the species’ must be included to ensure conservation stocks exchanging less than one mature present and historical range, habitat, of the species. We considered several female per generation on the average biology, and threats. In preparing this factors in this evaluation—(1) (Waldman and Wirgin, 1998). These low rule, we reviewed and summarized the maintaining overall genetic integrity gene flow estimates strongly suggest that natural recolonization of extirpated current information available on the and natural rates of inter-river genetic subpopulations of Gulf sturgeon would Gulf sturgeon, including the physical exchange, thereby minimizing the proceed slowly (Waldman and Wirgin, and biological features that are essential potential for inbreeding, (2) retaining 1998). Semi-isolated subpopulations are for the conservation of the species (see potentially important selective pressure more vulnerable to the effects of ‘‘Primary Constituent Elements’’ at the margins of the species’ range by demographic and environmental section), and identified the areas protecting the eastern- and western- population fluctuations (Forney and containing these features. The most subpopulations, (3) decreasing the Gilpin, 1989; and Wahlberg et al., 1996). information used includes known extinction risk of a subpopulation by Gene flow estimates are usually locations; our own site-specific species protecting adjacent subpopulations that higher between adjacent stocks, and habitat information; State-wide can provide a rescue effect, if needed, suggesting that migrants from semi- Geographic Information System (GIS) (4) avoiding the potential for isolated subpopulations are exchanged coverages (e.g., land ownership, subpopulation extirpation from primarily with neighboring bathymetry (the measurement of depths environmental catastrophes, and (5) subpopulations (Waldman and Wirgin, of water in oceans, seas, and lakes), and protecting sufficient habitat to support 1998). The loss of any intermediate estuarine substrates); the final listing conservation of the species. subpopulations by a single rule for the Gulf sturgeon; recent The historic range of the Gulf environmental catastrophe could biological surveys and reports; peer- sturgeon included nine major rivers and seriously limit a species’ recovery reviewed literature; our recovery plan; several smaller rivers from the (Kautz and Cox, 2001; and Young and discussions and recommendations from Mississippi River, Louisiana, to the Harig, 2001). In light of this, we Gulf sturgeon experts; and information Suwannee River, Florida, and in marine determined that it is necessary to received during Gulf sturgeon recovery waters of the Central and Eastern Gulf designate as critical habitat rivers used meetings. The Gulf Sturgeon Recovery/ of Mexico, south to Tampa Bay (Wooley by subpopulations evenly spaced Management Plan (FWS et al., 1995) and Crateau, 1985; and FWS et al., between the western- and eastern-most contains valuable biological 1995). Seven of these major river limits of the current range. To ensure information, and it is cited throughout systems continue to support conservation of the species, this document. However, the state of our reproducing subpopulations. These subpopulations must be geographically knowledge regarding Gulf sturgeon include (from west to east)—the Pearl, located so that they can serve as sources biology and distribution has changed Pascagoula, Escambia, Yellow/ of sturgeon emigration, albeit at a slow markedly since publication of the Blackwater, Choctawhatchee, rate (Waldman and Wirgin, 1998), to recovery plan for this species. The Apalachicola, and Suwannee Rivers. adjacent rivers and so that they can recovery criteria put forth in this The Gulf Sturgeon Recovery/ provide a rescue effect if an adjacent recovery plan were deemed preliminary Management Plan (FWS et al., 1995) subpopulation is extirpated (Brown and and may now warrant revision in light noted the importance of identifying and Kodric-Brown, 1977; Hanski and of new information. As a result of recent maintaining genetic integrity and Gyllenberg, 1993; and Young and Harig, research and survey efforts directed diversity during restoration efforts on 2001). towards this species, substantial Gulf sturgeon. A severe loss of genetic Designating critical habitat for only a portions of the biological information variability may lead to a decline in the few subpopulation units, or for units not presented in the recovery plan are now fitness of a species (Soule´, 1987). spaced in a manner that allows genetic dated or obsolete. Thus, although the Evidence suggests that peripheral exchange with other subpopulations, recovery plan is a valuable source of subpopulations are often genetically and could increase the vulnerability of the information, it is not the final authority morphologically divergent from central species due to isolation of on the natural history and distribution subpopulations (Lesica and Allendorf, subpopulations. Protection of a single, of this species. 1995). Distinct traits found in peripheral isolated, minimally viable population In the past, we had assumed, based on subpopulations may be crucial to the risks the extirpation or extinction of a the information available at the time, species, allowing adaptation in the face species as a result of harsh that unoccupied habitat would be of environmental change (Lesica and environmental conditions, catastrophic necessary for the recovery of the Gulf Allendorf, 1995; and Allendorf et al., events, or genetic deterioration over sturgeon. Since approval of the recovery 1997). In light of these considerations, several generations (Kautz and Cox, plan in 1995 and our 1998 not prudent we determined that the inclusion of 2001). To reduce the risk of extinction finding, we have collected new stocks or subpopulations from both the through these processes, it is important biological information on this species. eastern and the western margins of the to establish multiple protected We have analyzed what is necessary for current range were necessary to protect subpopulations across the landscape the conservation of the Gulf sturgeon, as the potential evolutionary importance of (Soule´ and Simberloff, 1986; and Wiens, described above, and based on the best those subpopulations (Scudder, 1989; 1996). scientific information available at this Lesica and Allendorf, 1995; and Young Because of these considerations, we time, we have determined that and Harig, 2001). reached the conclusion that this unoccupied habitat is not essential to While telemetry data indicate that designation should include critical the conservation of the Gulf sturgeon. Gulf sturgeon from one genetically habitat units within the major river 13388 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations systems that support the seven currently a component of the above encompassing estuaries and bays reproducing subpopulations (FWS et al., identifications, we gathered all available adjacent to the riverine units discussed 1995) and associated marine habitats. data on locations and habitat use of above will protect unobstructed passage These river systems include (from west marked (tagged) fish. of sturgeon from feeding areas to to east)—the Pearl, Pascagoula, To determine which areas should be spawning grounds. In evaluating the Escambia, Yellow/Blackwater, designated as critical habitat, we then estuarine and marine areas, we first Choctawhatchee, Apalachicola, and evaluated where the necessary reviewed where Gulf sturgeon from the Suwannee Rivers. We believe that with constituent elements of Gulf sturgeon seven adjacent riverine units have been proper protection and management, habitat intersected with areas known to documented by telemetry relocations these units collectively represent habitat be used by both marked and unmarked and tag returns from incidental necessary to provide for the fish. Detailed location data, where captures. We also considered areas for conservation of the species. The available, is included with each unit which we have Gulf sturgeon sightings number, distribution, and range of Gulf description in the ‘‘Critical Habitat Unit and targeted and incidental capture sturgeon subpopulations included in Descriptions’’ section of this final rule. records. When available, we reviewed these units is necessary to protect and Because most of the sturgeon species’ habitat data (e.g., bathymetry, substrate support the extent and diversity of the farthest upstream movement is for type, and community structure) species’ genetic integrity and can spawning (Bain, 1997; and J. Hightower, associated with these estuarine and provide a rescue effect, if needed. The USGS-Biological Resources Division, marine systems and compared these Services believe that these seven river pers. comm. 2002), we have determined data with studies pertaining to the systems, with their associated estuarine that the designation should include habitat requirements and preferences of and marine environments, represent areas as far upstream as the furthest Gulf sturgeon. We also evaluated data habitat that is essential for the known or presumed spawning site. for evidence of critical migratory conservation of the Gulf sturgeon. Therefore, in rivers where spawning pathways between the river systems and sites have been confirmed, critical the adjacent bays and Gulf of Mexico Assessing Specific Habitat Areas habitat extends upstream to a that allow Gulf sturgeon to travel to Essential to the Conservation of Gulf geographically identifiable point, such important feeding areas, as well as allow Sturgeon as a river confluence upstream of those for the occasional travel to non-natal Once we determined that the proper sites. In areas where spawning sites are rivers for possible spawning and genetic scale of the critical habitat designation presumed but not confirmed, we have interchange. Where documented inter- should cover the area occupied by the included river reaches that contain the riverine movements have occurred, but seven reproducing subpopulations, we appropriate substrate necessary for no telemetry data exist to identify the evaluated which habitats used by those spawning, if those areas occur within migratory path (e.g., between the seven subpopulations are essential to close proximity of Gulf sturgeon historic Pascagoula River and Yellow River, the their conservation. To conduct this and/or current sightings or captures, Pascagoula and Choctawhatchee Rivers, evaluation, we assessed the critical life and if they are still accessible to and between Suwannee River and history components of Gulf sturgeon as sturgeon (e.g., not entirely blocked by Apalachicola River), we have not they relate to habitat. Gulf sturgeon use dams). The riverine critical habitat units designated a migration route. We then the rivers for spawning, larval and include areas that continue to offer at assessed the Gulf sturgeon’s overall use juvenile feeding, adult resting, and least periodic passage of Gulf sturgeon of estuarine and marine waters and staging, and to move between the areas to known and presumed spawning sites. delineated specific critical habitat that support these components. Gulf Successful reproduction and recent boundaries. sturgeon use the lower riverine, recruitment have been documented in Migration and feeding may take place estuarine, and marine environment each riverine unit by eggs, larvae, and/ within the GIWW in some of the units. during winter months primarily for or juveniles, or by a mixed age structure. Portions of the GIWW that consist feeding, and more rarely, for inter-river We are proposing to protect primarily of excavated land cuts and migrations. subpopulation extirpation from a canals have been excluded from this We then investigated what habitat catastrophic occurrence by including up designation because they were not types support these life history to both the main stem spawning sites available historically, and, therefore, are components and where these habitat and at least one tributary site. not considered to be evolutionarily areas are located. We evaluated We have included riverine habitat significant. empirical data, published and from the river mouth upstream to and This final designation includes a unpublished literature, and solicited the including spawning grounds in order to significant portion, but not all, of the views of experts. These habitat provide sufficient habitat necessary for species’ historic range. The fourteen components are described in the the other riverine life stages of Gulf critical habitat units include riverine ‘‘Primary Constituent Elements’’ section sturgeon while they reside in the main stems and in some cases of this final rule. We identified known riverine habitats. Habitat necessary for tributaries, distributaries (a river branch or presumed spawning sites in each of these life stages includes habitat for flowing away from the main stem in the the seven river systems. Some spawning summer resting or staging areas, floodplain) and adjacent estuarine and sites have been conclusively identified; juvenile feeding, entire young-of-the- marine areas that contain one or more others are presumed due to the presence year life cycle, passage throughout the of the primary constituent elements of suitable habitat. We identified known river, and passage into and out of essential for the conservation of the Gulf or presumed sites used for resting or estuarine habitat. All of the selected sturgeon (see ‘‘Primary Constituent staging. We identified areas where areas are known to be used by Gulf Elements’’ section). The omission of subadult and adult Gulf sturgeon occur sturgeon for some portion of their life some historically occupied river during winter and are presumed to be cycle. drainages and estuarine and marine feeding. These areas are primarily in the Subadult and adult sturgeon use areas from this critical habitat marine or estuarine environment; estuarine and marine areas for feeding designation does not diminish their young-of-the-year and juveniles feed and passage between river systems. individual or cumulative importance to mostly in the riverine environment. As Designation of critical habitat units the species. Rather, it is our Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13389 determination that the seven riverine designated as critical habitat. If minimizing energy expenditures during units with known spawning and seven additional information becomes fresh water residency and possibly for associated estuarine and marine units available on the species’ biology, osmoregulatory functions; included in this rule include the distribution, and threats, we will (4) A flow regime (i.e., the magnitude, habitats essential for the conservation of evaluate the need to designate frequency, duration, seasonality, and the Gulf sturgeon. With unobstructed additional critical habitat, delete or rate-of-change of fresh water discharge passage in the estuarine and marine reduce critical habitat, or refine the over time) necessary for normal habitat, the subpopulations within the boundaries of critical habitat. Gulf behavior, growth, and survival of all life designated critical habitat units may sturgeon surviving in, or moving to stages in the riverine environment, eventually populate presently rivers that are not being included as including migration, breeding site unoccupied coastal river systems or critical habitat will continue to receive selection, courtship, egg fertilization, augment adjacent surviving small protection under the section 7 of the Act resting, and staging, and for maintaining subpopulations. including the jeopardy standard and the spawning sites in suitable condition for Although the Mobile River Basin is section 9 of the Act prohibitions on take egg attachment, egg sheltering, resting, the largest Gulf of Mexico drainage east (see ‘‘Critical Habitat’’ section). and larval staging; of the Mississippi River, it has been extensively impounded and modified Primary Constituent Elements (5) Water quality, including for navigation. Further, there have been In accordance with sections 3(5)(A)(i) temperature, salinity, pH, hardness, relatively limited reports of captures and 4(b)(1)(A) of the Act and regulations turbidity, oxygen content, and other and no evidence of reproduction of Gulf at 50 CFR 424.12, in determining which chemical characteristics, necessary for sturgeon from that system for many areas to designate as critical habitat, we normal behavior, growth, and viability years. Gulf sturgeon have been reported are required to base critical habitat of all life stages; from other river systems. Some of these determinations on the best scientific (6) Sediment quality, including other systems historically supported a data available and to focus on those texture and other chemical commercial fishery (e.g., Mobile River, physical and biological features characteristics, necessary for normal Ochlockonee River) and some may (primary constituent elements) that are behavior, growth, and viability of all life support small reproducing essential to the conservation of the stages; and species and that may require special subpopulations (e.g., Techefuncte River, (7) Safe and unobstructed migratory management considerations or Ochlockonee River, Mobile River); pathways necessary for passage within protection. Such requirements include, however, there is no recent documented and between riverine, estuarine, and but are not limited to, space for spawning and we have no evidence at marine habitats (e.g., an unobstructed individual and population growth and this time that these systems are essential river or a dammed river that still allows for normal behavior; food, water, air, to the conservation of the species. for passage). Therefore, we have not included them light, minerals, or other nutritional or as critical habitat. physiological requirements; cover or Need for Special Management The data available to us are shelter; sites for breeding, reproduction, Consideration or Protection insufficient to support a determination and rearing of offspring; and habitats that Lake Maurepas, Breton and that are protected from disturbance or An area designated as critical habitat Chandeleur Sounds, the Mississippi are representative of the historical contains one or more of the primary River Delta, St. Louis, Biloxi, Mobile, geographical and ecological distribution constituent elements that are essential Perdido, St. Andrews, St. Joseph, of a species. to the conservation of the species (see Ochlockonee, or Bays are Based on the best available ‘‘Primary Constituent Elements’’ essential to the conservation of the information, primary constituent section), and that may require special species. Records within the majority of elements essential for the conservation management considerations or these bays are relatively scarce. of the Gulf sturgeon include the protection. Various activities in or Although some Gulf sturgeon from the following: adjacent to each of the critical habitat seven subpopulations may occasionally (1) Abundant food items, such as units described in this rule may affect use these bays for winter foraging, there detritus, aquatic insects, worms, and/or one or more of the primary constituent are insufficient data to support these molluscs, within riverine habitats for elements that are found in the unit. bays’ regular winter use or importance larval and juvenile life stages; and These activities include, but are not and no documented spawning. abundant prey items, such as limited to, those listed in the ‘‘Effects of Therefore, we have not included these amphipods, lancelets, polychaetes, Critical Habitat’’ section as ‘‘Federal bays in our critical habitat designation. gastropods, ghost shrimp, isopods, Actions That May Affect Critical Habitat The amount of research and status molluscs and/or crustaceans, within and Require Consultation.’’ For surveys conducted on many Gulf estuarine and marine habitats and example, riverine spawning sites for sturgeon subpopulations is limited. substrates for subadult and adult life Gulf sturgeon must be relatively Because of the limited availability of stages. sediment-free for successful egg data specific to each river system and (2) Riverine spawning sites with development and may need best specific to the Gulf sturgeon’s use of the substrates suitable for egg deposition management practices implemented in marine environment, we are aware that and development, such as limestone the watershed upstream to prevent an habitat other than that identified in this outcrops and cut limestone banks, excessive accumulation of sediment in final rule may later be found to be bedrock, large gravel or cobble beds, these areas. None of the critical habitat essential to the conservation of Gulf marl, soapstone, or hard clay; units are presently under special sturgeon. To the extent feasible, we will (3) Riverine aggregation areas, also management or protection provided by continue, with the assistance of other referred to as resting, holding, and a legally operative plan or agreement for Federal, State, and private researchers, staging areas, used by adult, subadult, the conservation of the Gulf sturgeon. to conduct surveys, research, and and/or juveniles, generally, but not Therefore, we have determined that all conservation actions on the species and always, located in holes below normal units may require special management its habitat in areas designated and not riverbed depths, believed necessary for or protection. 13390 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

Critical Habitat Designation elements described above. Tables 1 and their contribution to the conservation of 2 summarize the location and extent of the Gulf sturgeon. The boundaries of The areas designated as critical the designated critical habitat. All of the critical habitat units are described habitat for the Gulf sturgeon provide designated areas require special generally below. one or more of the primary constituent management considerations to ensure

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 distributaries) ...... Louisiana/Mississippi ...... 632 393 Bogue Chitto ...... 163 101 2. Pascagoula ...... 203 126 Leaf ...... 164 102 Bouie ...... Mississippi ...... 10 6 Chickasawhay ...... 232 144 Big ...... 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— 2 2 estuarine and marine systems State Kilometers Miles

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. ...... Florida ...... 683 264 14. Suwannee Sound ...... Florida ...... 546 211

Total ...... 6,042 2,333

Critical Habitat Unit Descriptions the characteristics of the surrounding 329.12(a)(2)). All bays and estuaries areas. within units 8 to 14, therefore, lie below The river reaches within units 1 to 7 The downstream limit of the riverine the MHW lines. Where precise designated as critical habitat lie within units is the mouth of each river. The determination of the actual location the ordinary high water line. As defined mouth is defined as rkm 0 (rmi 0). becomes necessary, it must be in 33 CFR 329.11, the ordinary high Although the interface of fresh and established by survey with reference to water line on non-tidal rivers is the line saltwater, referred to as the saltwater the available tidal datum, preferably on the shore established by the wedge, occurs within the lower-most averaged over a period of 18.6 years. fluctuations of water and indicated by reach of a river, for ease in delineating Less precise methods, such as physical characteristics such as a clear, critical habitat units, we are defining the observation of the ‘‘apparent shoreline,’’ natural line impressed on the bank; boundary between the riverine and which is determined by reference to estuarine units as rkm 0 (rmi 0). shelving; changes in the character of physical markings, lines of vegetation, Regulatory jurisdiction in coastal soil; destruction of terrestrial vegetation; may be used only where an estimate is areas extends to the line on the shore the presence of litter and debris; or needed of the line reached by the mean other appropriate means that consider reached by the plane of the mean (average) high water (MHW) (33 CFR high water. Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13391

The term 72 COLREGS is defined as distributaries are used for migration to Bogue Chitto River upstream of Quinn demarcation lines which delineate those spawning grounds, summer resting Bridge (Mississippi State Highway 44) waters upon which mariners shall holes, and juvenile feeding. Gulf to Mississippi State Highway 570 for comply with the International sturgeon have been captured in all of ease of identification. Regulations for Preventing Collisions at these distributaries and all are Unit 2. Pascagoula River System in Sea, 1972 and those waters upon which designated as critical habitat. Forrest, Perry, Greene, George, Jackson, mariners shall comply with the Inland The presence of juvenile Gulf Clarke, Jones, and Wayne Counties, Navigation Rules (33 CFR 80.01). The sturgeon (1 to 4 years old) in the Pearl Mississippi waters inside of these lines are Inland River system indicates successful Rules waters and the waters outside the spawning at some location in the Pearl Unit 2 includes all of the Pascagoula lines are COLREGS waters. These lines River system. It is believed that the only River main stem and its distributaries, are defined in 33 CFR 80, and have been suitable habitat for spawning for the portions of the Bouie, Leaf, and used for identification purposes to Pearl River subpopulation of Gulf Chickasawhay tributaries, and all of the delineate boundary lines of the sturgeon occurs above the sills on the Big Black Creek tributary. It includes the estuarine and marine habitat Units 8, 9, Pearl River and the Bogue Chitto River Bouie River main stem beginning on the 11, and 12. with access to these areas only during southern-most road crossing of high flows (Morrow et al., 1996; and Interstate 59, Forrest County, Unit 1. Pearl River System in St. Morrow et al., 1998a). Bedrock and Mississippi, downstream to its Tammany and Washington Parishes in limestone outcropping that are typical confluence with the , Forrest Louisiana and Walthall, Hancock, Pearl of Gulf sturgeon spawning areas in other County, Mississippi. The Leaf River River, Marion, Lawrence, Simpson, systems do not occur here. However, main stem beginning from Mississippi Copiah, Hinds, Rankin, and Pike within the Pearl drainage, spawning State Highway 588, Jones County, Counties in Mississippi areas likely include soapstone, hard Mississippi, downstream to its Unit 1 includes the Pearl River main clay, gravel and rubble areas, and confluence with the Chickasawhay stem from the spillway of the Ross undercut banks adjacent to these River, George County, Mississippi is Barnett Dam, Hinds and Rankin substrates (W. Slack, pers. comm. 2001). included. The main stem of the Counties, Mississippi, downstream to Although the Pools Bluff Sill blocks Chickasawhay River from the mouth of where the main stem river drainage upstream movement on the Pearl River Oaky Creek, Clarke County, Mississippi, discharges at its mouth joining Lake during periods of low water, potential downstream to its confluence with the Borgne, Little Lake, or The Rigolets in spawning sites have been identified Leaf River, George County, Mississippi Hancock County, Mississippi, and St. upstream of the sill at various locations is included. Unit 2 also includes Big Tammany Parish, Louisiana. It includes between Monticello, Lawrence County, Black Creek main stem from its the main stems of the East Pearl River, Mississippi, and the Ross Barnett Dam confluence with Black and Red Creeks, West Pearl River, West Middle River, spillway, Hinds and Rankin Counties, Jackson County, Mississippi, to its Holmes Bayou, Wilson Slough, Mississippi (F. Parauka, pers. comm. confluence with the Pascagoula River, downstream to where these main stem 2002). Gulf sturgeon have also been Jackson County, Mississippi. All of the river drainages discharge at the mouths recently reported as far upstream as main stem of the Pascagoula River from of Lake Borgne, Little Lake, or The Jackson, Hinds County, Mississippi its confluence with the Leaf and Rigolets. Unit 1 also includes the Bogue (Morrow et al., 1996; Lorio, 2000; and Chickasawhay Rivers, George County, Chitto River main stem, a tributary of W. Slack, pers. comm. 2002). The Ross Mississippi, to the discharge of the East the Pearl River, from Mississippi State Barnett Dam upstream of Jackson and West Pascagoula Rivers into Highway 570, Pike County, Mississippi, prevents sturgeon movement further Pascagoula Bay, Jackson County, downstream to its confluence with the upstream at all flow conditions. Mississippi, is included. The lateral West Pearl River, St. Tammany Parish, Identified suitable spawning habitat, extent of Unit 2 is the ordinary high Louisiana. The lateral extent of Unit 1 presence of juvenile fish, and water line on each bank of the is the ordinary high water line on each documented adult captures support our associated rivers and shorelines. bank of the associated rivers and inclusion of the Pearl River up to the Subpopulation estimates, calculated shorelines. spillway of the Ross Barnett Dam. from sturgeon captures in 1999 and The majority of recent Gulf sturgeon The Bogue Chitto Sill, located on the 2000 in the summer holding areas on sightings in the Pearl River drainage Bogue Chitto River near its confluence the Pascagoula River, range between 162 have occurred downstream of the Pools with the Pearl River, also hinders and 216 individuals (Heise et al., 1999a; Bluff Sill on the Pearl River, near movement of Gulf sturgeon upstream of and Ross et al., 2001b). Due to the Bogalusa, Washington Parish, Louisiana, the sill except during high water flows. sampling technique, these estimates are and downstream of the Bogue Chitto Sill Suitable spawning habitat occurs within based primarily on large fish and do not on the Bogue Chitto River in St. the Bogue Chitto upriver of the sill (W. account for juvenile or subadult fish (S. Tammany Parish, Louisiana. Between Slack, pers. comm. 2001; W. Granger, Ross, USM, pers. comm. 2001). 1992 and 1996, 257 Gulf sturgeon were FWS, pers. comm. 2002; and F. Parauka, Gulf sturgeon spawning on the Bouie captured from the Pearl River system pers. comm. 2002) and juvenile, adult River was confirmed via egg collection (West Middle River, Bogue Chitto River, and subadult Gulf sturgeon have been in 1999 (Slack et al., 1999; and Heise et East Pearl River, and West Pearl River). documented on the Bogue Chitto River al., 1999a). This is the only confirmed The subpopulation was estimated at 292 as far upstream as one mile north of spawning area in the Pascagoula River fish, of which only 2 to 3 percent were Quinn Bridge (Mississippi State drainage. Downstream, the Bouie River adults (Morrow et al., 1998b). The Highway 44), McComb, Pike County, is sometimes used as a summer holding annual mortality rate was calculated to Mississippi (W. Slack pers. comm. 2001; area (Ross et al., 2001b). Gulf sturgeon be 25 percent. Preliminary results from D. Oge, Louisiana Department of have been documented using the area captures between 1992 and 2001 suggest Environmental Quality, pers. comm. above the known spawning habitat a stable subpopulation of 430 fish, with 2002; and F. Parauka, pers. comm. approximately 0.80 rkm (0.50 rmi) north approximately 300 adults (Rogillio et 2002). We, therefore, have designated as of Glendale Road (Reynolds, 1993; and al., 2002). These Pearl River critical habitat the main stem of the W. Slack, pers. comm. 2002). Additional 13392 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations suitable spawning habitat has been discharge into Escambia Bay and Macky have included all distributaries on the identified in this upstream reach (F. Bay, Escambia and Santa Rosa Counties, Escambia River system (i.e., White Parauka, pers. comm. 2002), and since Florida. All of the distributaries of the River, Little White River, Simpson Gulf sturgeon have rarely been Escambia River including White River, River, and Dead River) in Unit 3. documented upstream of spawning Little White River, Simpson River, and Unit 4. Yellow River System in Santa grounds, we have included the 4.8 rkm Dead River, Santa Rosa County, Florida Rosa and Okaloosa Counties, Florida (3 rmi) of river reach upstream of the are included. The Sepulga River main and Covington County, Alabama confirmed spawning grounds. For ease stem from Alabama County Road 42, of identification, we have stopped on Conecuh and Escambia Counties, Unit 4 includes the Yellow River the southern-most road crossing of Alabama, downstream to its confluence main stem from Alabama State Highway Interstate 59, where it crosses the Bouie with the Conecuh River, Escambia 55, Covington County, Alabama, River. Confirmed use for spawning and County, Alabama, is also included. The downstream to its discharge at use as a summer holding area support lateral extent of Unit 3 is the ordinary Blackwater Bay, Santa Rosa County, the inclusion of the Bouie River as high water line on each bank of the Florida. All Yellow River distributaries critical habitat. associated lakes, rivers and shorelines. (including Weaver River and Skim Lake) Documented sightings of Gulf Sufficient data are not yet available to discharging into Blackwater Bay are sturgeon and identified suitable estimate historic or current included. The Shoal River main stem, a spawning habitat upstream to subpopulation size of the Escambia Yellow River tributary, from Florida Mississippi State Highway 588 River drainage subpopulation. Highway 85, Okaloosa County, Florida, (Reynolds, 1993; W. Slack, pers. comm. Collection and tagging of Gulf sturgeon, to its confluence with the Yellow River, 2002; and F. Parauka, pers. comm. monitoring, and eventual subpopulation is included. The Blackwater River from 2002), confirmed use as a migration estimates are in the initial phases on the its confluence with Big Coldwater corridor, and confirmed use by juvenile Escambia River in Florida and the Creek, Santa Rosa County, Florida, Gulf sturgeon (W. Slack, pers. comm. Conecuh River in Alabama. downstream to its discharge into 2002) support the inclusion of the Leaf Suitable spawning habitat (Parauka Blackwater Bay is included. Wright River as critical habitat. and Giorgianni, 2002) and a reported Basin and Cooper Basin, Santa Rosa Documented sightings of Gulf larval sighting (N. Craft, Florida County, on the Blackwater River are sturgeon using the Chickasawhay River Department of Environmental Protection included. The lateral extent of Unit 4 is (Miranda and Jackson, 1987; Reynolds, (FDEP), pers. comm. 2001), just below the ordinary high water line on each 1993; and Ross et al., 2001b) upstream the Point A Dam (221 rkm (137 rmi)) on bank of the associated lakes, rivers and to Quitman (Ross et al., 2001b), and the the Conecuh River support inclusion of shorelines. presence of apparently suitable critical habitat upstream to the Point A The USGS conducted a subpopulation spawning habitat at Quitman (F. Dam. The Point A Dam prevents study in the Yellow River system during Parauka, pers. comm. 2002), support the sturgeon movement further upstream at the spring (May to July) and fall inclusion of this river reach as critical all flow conditions. In addition, (October) of 2001. Based on the capture habitat for spawning, migration, and spawning has been confirmed between of 98 fish in the spring and the capture/ juvenile feeding. We have included the rkm 161 and 170 (rmi 100 and 105.6) recapture of 94 fish that fall, the USGS suitable spawning habitat located (Craft et al., 2001) on the Conecuh River. estimated the subpopulation to consist within 0.8 rkm (0.5 rmi) upstream of The use of the river main stem for of 580 Gulf sturgeon of 1 m (3.3 ft) or Mississippi State Road 512 and have spawning, adult resting areas, juvenile greater in size (M. Randall, USGS, pers. extended the designation 9 rkm (5.5 feeding and resting, and the use for comm. 2001). This estimate excludes rmi) upstream to the confluence with migration to these sites supports our fish younger than 3 to 4 years of age. Oaky Creek for ease of identification. inclusion of the Escambia/Conecuh Five distinct limestone outcrops have Gulf sturgeon use the West and main stem as critical habitat for been documented as possible spawning distributaries of the Pascagoula River the Escambia River subpopulation of sites on the Yellow River, between rkm during spring and fall migrations (Ross Gulf sturgeon. 43 and 134 (rmi 26.7 and 83.3) (Parauka et al., 2001b). Summer resting areas Historic sightings reported from the and Giorgianni, 2002). Several sites have been consistently documented on 1910s and 1920s, and as recently as consist of brittle marl and limestone, Big Black Creek and on the Pascagoula 1991, have been documented in and others of porous limestone. The River (Ross et al., 2001a and b). Escambia County, Alabama, on the lowest downstream site (rkm 43 (rmi Confirmed use for migration and/or Sepulga River (Reynolds, 1993). Estes et 26.7)) is a primitive rock revetment, a summer resting areas and probable al. (1991) describe the Sepulga as having manmade structure with a fair amount feeding use by juveniles support our smooth rock walls, and long pools with of rock substrate (Craft et al., 2001). In inclusion of these river reaches. stretches of rocky shoals and sandbars. recent years, biologists working for the We included the Sepulga River reach State of Alabama have observed young- Unit 3. Escambia River System in Santa upstream to Alabama County Road 42, of-the-year Gulf sturgeon near limestone Rosa and Escambia Counties, Florida Escambia County, Alabama, because it outcrops 3.2 km (2 mi) south of and Escambia, Conecuh, and Covington has suitable spawning habitat and Alabama State Highway 55 (136 rkm (84 Counties, Alabama documented sightings. rmi)) (Craft et al., 2001), which confirms Unit 3 includes the Conecuh River We believe it is most likely that Gulf that reproduction is occurring within main stem beginning just downstream of sturgeon use the Escambia River main this subpopulation. The river upstream the spillway of Point A Dam, Covington stem and all the distributaries for of Alabama State Highway 55 is County, Alabama, downstream to the exiting and entering the Escambia/ shallow, sandy, and creek-like and, Florida State line, where its name Conecuh River. Gulf sturgeon have been therefore, not believed suitable for changes to the Escambia River, documented to use distributaries near spawning (M. Randall, pers. comm. Escambia County, Alabama, and the river mouth within other systems 2001; F. Parauka, pers. comm. 2001; and Escambia and Santa Rosa Counties, (e.g., Suwannee, Pearl, and Pascagoula G. Morgan, Conecuh National Forest, Florida. It includes the entire main stem River systems) for migration into and pers. comm. 2001). Preliminary surveys of the Escambia River downstream to its out of riverine habitat. We, therefore, located four potential summer resting Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13393 areas on the Yellow River main stem Biologists have located Gulf sturgeon Choctawhatchee River main stem. All (Craft et al., 2001). Recent fish captures within 0.8 rkm (0.5 rmi) downstream of distributaries, including the Indian and the confirmation of spawning at the the Elba Dam, Coffee County, Alabama, River, Cypress River, Bells Leg, and furthest upstream spawning habitat on the (Lorio, 2000) and have Mitchell River, are included as critical location near Alabama State Highway 55 identified suitable spawning habitat habitat. support our inclusion of the Yellow from the Elba Dam to the Pea River Unit 6. Apalachicola River System in River main stem to Alabama State mouth (Parauka and Giorgianni, 2002; Franklin, Gulf, Liberty, Calhoun, Highway 55 (136 rkm (84 rmi)) as and Hightower et al., in press). The Elba Jackson, and Gadsen Counties, Florida critical habitat for the Yellow River Dam prevents sturgeon movement subpopulation of Gulf sturgeon. further upstream at all flow conditions. Unit 6 includes the Apalachicola The inclusion of the Shoal River, from This river reach has one confirmed River mainstem, beginning from the Jim the Yellow River confluence upstream spawning site, and Gulf sturgeon often Woodruff Lock and Dam, Gadsden and to the Florida Highway 85 bridge (13 use the lower reach for summer resting Jackson Counties, Florida, downstream rkm (8 rmi)), is supported as critical (Fox et al., 2000; and Hightower et al., to its discharge at East Bay or habitat because it is a confirmed in press). Suitable spawning and resting Apalachicola Bay, Franklin County, summer resting area (Lorio 2000). The habitat, confirmed spawning, and Florida. All Apalachicola River potential for distributaries Weaver River young-of-the-year and juvenile feeding distributaries, including the East River, and Skim Lake to be used for migration (F. Parauka, pers. comm. 2001) support Little St. Marks River, St. Marks River, to and from the Yellow River system inclusion of the Pea River reach as Franklin County, Florida, to their (Craft et al., 2001) supports their critical habitat. discharge into East Bay and/or inclusion as critical habitat. The current Five spawning sites and seven resting Apalachicola Bay are included. The and historic use of deep holes by Gulf areas have been identified on the entire main stem of the Brothers River, sturgeon on the Blackwater River main Choctawhatchee River main stem Franklin and Gulf Counties, Florida, a stem and between Wright Basin and between the river mouth (0 rkm (0 rmi)) tributary of the Apalachicola River, is Cooper Basin demonstrate the and upstream to 150 rkm (93 rmi) included. The lateral extent of Unit 6 is importance of this area for summer (Hightower et al., in press). Biologists the ordinary high water line on each resting and staging (Reynolds, 1993; and have identified suitable spawning bank of the associated rivers and Craft et al., 2001) and support its habitat (limestone outcrops) shorelines. inclusion as critical habitat for the periodically between 135 rkm (84 rmi) Based on mark/recapture studies Yellow River subpopulation. to the confluence of the West Fork conducted in 1998 and 1999 in the Choctawhatchee River and East Fork Apalachicola River downstream of Jim Unit 5. Choctawhatchee River System in Choctawhatchee River (224 rkm (139 Woodruff Lock and Dam, the summer Holmes, Washington, and Walton rmi)) (Parauka and Giorgianni, 2000; H. subpopulation of subadult and adult Counties, Florida and Dale, Coffee, Blalock-Herod, FWS, pers. comm. 2002; Gulf sturgeon was estimated to be Geneva, and Houston Counties, and Hightower et al., in press ). Fox et between 270 and 321 individuals (FWS, Alabama al. (2000) located a male at 150 rkm (93 1998; and FWS, 1999). Seventy-one Unit 5 includes the Choctawhatchee rmi) and another male in spawning sturgeon were collected in the upper River main stem from its confluence condition near Newton (214 rkm (133 Brothers River, upstream of the with the west and east fork of the rmi)) on the Choctawhatchee River, 8 Brickyard Cutoff and downstream of Choctawhatchee River, Dale County, rkm (5 rmi) downstream of the Bearman Creek between June and Alabama, downstream to its discharge at confluence of the West Fork September 1999 (FWS, 1999; and Lorio, Choctawhatchee Bay, Walton County, Choctawhatchee River and East Fork 2000). Gulf sturgeon captured on the Florida. The distributaries discharging Choctawhatchee River. Since Gulf Brothers River have not been included into Choctawhatchee Bay known as sturgeon rarely occur upstream of in the Apalachicola River subpopulation Mitchell River, , Cypress spawning grounds, we have included up size estimate although they are believed River, and Bells Leg are included. The to the confluence of West Fork to be part of the subpopulation. Boynton Cutoff, Washington County, Choctawhatchee River and East Fork The Gulf sturgeon became restricted Florida, which joins the Choctawhatchee River for ease of to the portion of the Apalachicola River Choctawhatchee River main stem, and identification and with the probability downstream of the Jim Woodruff Lock Holmes Creek, Washington County, of unconfirmed spawning grounds. and Dam upon the construction of the Florida, are included. The section of Suitable habitat, confirmed spawning, dam in the 1950s. Wooley et al. (1982) Holmes Creek from Boynton Cutoff to and young-of-the-year and juvenile documented the capture of two Gulf the mouth of Holmes Creek, Washington feeding support the inclusion of the sturgeon larvae on the Apalachicola County, Florida, is included. The Pea Choctawhatchee River main stem as River just downstream of the Jim River main stem, a Choctawhatchee critical habitat. Woodruff Lock and Dam, thereby River tributary, from the Elba Dam, No sturgeon have been documented confirming successful spawning up to Coffee County, Alabama, to its within Holmes Creek, except for the the dam. Resting aggregations are often confluence with the Choctawhatchee section that connects the seen at the base of the dam. Seven River, Geneva County, Alabama, is Choctawhatchee River and Boynton potential spawning sites have been included. The lateral extent of Unit 5 is Cutoff, north and south. We have identified in the upper Apalachicola the ordinary high water line on each included this river section of Holmes River between Highway 20 and the Jim bank of the associated rivers and Creek because it acts as part of the Woodruff Lock and Dam (120 to 171 km shorelines. Choctawhatchee River main stem. In (76 to 106 rmi)) (Parauka and Preliminary estimates of the size of 1994, Gulf sturgeon were captured Giorgianni, 2002). Suitable spawning the Gulf sturgeon subpopulation in the during March and April at the mouths and resting habitat, confirmed Choctawhatchee River system are 2,000 of Indian River, Cypress River, and Bells spawning, and young-of-the-year and to 3,000 fish over 61 cm (24 inches (in)) Leg, indicating that sturgeon probably juvenile feeding support inclusion of total length (F. Parauka, pers. comm. use these distributaries as migratory the Apalachicola River as critical 2001). corridors to and from the habitat. 13394 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

The entire main stem of the Brothers Sulak and Clugston (1999) estimated the Gulf of Mexico by a straight dredged River, a major tributary of the that 30 to 90 female fish spawn per year. channel across the northern portion of Apalachicola River, is also included as Marchant and Shutters (1996) the Sound, and Alligator Pass, used by critical habitat. Spawning has not been collected two Gulf sturgeon eggs from juveniles (Huff, 1975), connected to the documented within this tributary, but the Suwannee River in April 1993. Gulf of Mexico by an undredged, natural an important resting area is located in These were the first Gulf sturgeon eggs channel. Confirmed use of the East Pass, the uppermost section of the Brothers collected in the wild. Between 1993 and West Pass, and Alligator Pass, and River between Brickyard Cutoff and 1998, three spawning sites were probable use of the Wadley Pass by Bearman Creek (FWS, 1999; and Lorio, confirmed with the collection of Gulf adult and juvenile Gulf sturgeon for 2000). Sturgeon use the lower Brothers sturgeon eggs on artificial substrate migration and feeding support the River as a resting and possible samplers (Marchant and Shutters, 1996; inclusion of all distributaries of the osmoregulation area (staging) before and Sulak and Clugston, 1999). Young- Suwannee River as critical habitat. migrating into the estuarine and marine of-the-year have been documented using the river between rkm 10 to the Unit 8. Lake Pontchartrain, Lake St. habitats for winter feeding (Wooley and Catherine, The Rigolets, Little Lake, Crateau, 1985). The Apalachicola River confluence with Roaring Creek at approximately rkm 285 (177 rmi) on the Lake Borgne, and Mississippi Sound in distributaries, including the East River, Jefferson, Orleans, St. Tammany, and St. Marks River and Little St. Marks Suwannee River main stem (Carr et al., 1996a; Sulak and Clugston, 1999; K. St. Bernard Parish, Louisiana, Hancock, River, are included, based on Jackson, and Harrison Counties in information derived from other systems. Sulak, pers. comm. 2002; and J. Clugston, pers. comm. 2002). It is Mississippi, and in Mobile County, Gulf sturgeon tend to use more than just Alabama the main stem for migration into and out believed that the farthest upstream that of the river systems (e.g., Suwannee, sturgeon spawn during high water is Big Unit 8 encompasses Lake Choctawhatchee, and Pearl Rivers). Shoals, near White Springs, Hamilton Pontchartrain east of the Lake and Columbia Counties, Florida, but Pontchartrain Causeway, all of Little Unit 7. Suwannee River System in adult sturgeon are probably unable to Lake, The Rigolets, Lake St. Catherine, Hamilton, Suwannee, Madison, move upstream of Big Shoals (Huff, Lake Borgne, including Heron Bay, and Lafayette, Gilchrist, Levy, Dixie, and 1975; K. Sulak, pers. comm. 2002; and the Mississippi Sound. Critical habitat Columbia Counties, Florida M. Randall, pers. comm. 2002). Suitable follows the shorelines around the perimeters of each included lake. The Unit 7 includes the Suwannee River spawning habitat has been identified Mississippi Sound includes adjacent main stem, beginning from its upstream to Big Shoals (Huff, 1975; H. open bays including Pascagoula Bay, confluence with Long Branch Creek, Blalock-Herod, pers. comm. 2002). Point aux Chenes Bay, Grand Bay, Hamilton County, Florida, downstream Foster and Clugston (1997) located five Sandy Bay, and barrier island passes, to the mouth of the Suwannee River. It major resting areas throughout the Suwannee River. A deep river bend and including Ship Island Pass, Dog Keys includes all the Suwannee River a shallow sandy section were Pass, Horn Island Pass, and Petit Bois distributaries, including the East Pass, characteristic features of the resting Pass. The northern boundary of the West Pass, Wadley Pass, and Alligator areas (Foster and Clugston, 1997). Mississippi Sound is the shoreline of Pass, Dixie and Levy Counties, Florida, Confirmed use for spawning, identified the mainland between Heron Bay Point, to their discharge into the Suwannee and probable spawning habitat Mississippi and Point aux Pins, Sound or the Gulf of Mexico. The upstream to Big Shoals, young-of-year Alabama. Critical habitat excludes St. Withlacoochee River main stem from and juvenile feeding, and summer Louis Bay, north of the railroad bridge Florida State Road 6, Madison and resting support the inclusion of the across its mouth; Biloxi Bay, north of Hamilton Counties, Florida, to its Suwannee River as critical habitat. For the U.S. Highway 90 bridge; and Back confluence with the Suwannee River is ease of identification, the Suwannee Bay of Biloxi. The southern boundary included. The lateral extent of Unit 7 is River has been included in the unit follows along the broken shoreline of the ordinary high water line on each upstream of Big Shoals 0.8 rkm (0.5 rmi) Lake Borgne created by low bank of the associated rivers and to its confluence with Long Branch islands from Malheureux Point to Isle shorelines. Creek. au Pitre. From the northeast point of Isle The Suwannee River supports the Adult Gulf sturgeon sightings and au Pitre, the boundary continues in a largest Gulf sturgeon subpopulation suitable spawning habitat on the lower straight north-northeast line to the point among the coastal rivers of the Gulf of Withlacoochee River near Florida State 1 nautical mile (nm) (1.9 km) seaward Mexico (Huff, 1975; and Gilbert, 1992). Road 141, Hamilton and Madison of the western most extremity of Cat Sulak and Clugston (1999) reported Counties, Florida, support the inclusion Island (30°13′N, 89°10′W). The southern 5,344 uniquely tagged Suwannee River of this area as critical habitat. We have boundary continues 1 nm (1.9 km) from 1986 to 1998. Multiple included shoals (5 rkm (3 rmi)) located offshore of the barrier islands and models using various age classes have just upstream of where sturgeon have offshore of the 72 COLREGS lines at been used to estimate the subpopulation been observed as possible spawning barrier island passes (defined at 33 CFR size of Gulf sturgeon on the Suwannee habitat, and have stopped at Florida 80.815 ©)), (d) and (e)) to the eastern River system. Chapman et al. (1997) State Road 6 (14 rkm (9 rmi)), upstream boundary. Between Cat Island and Ship estimated the subpopulation at 3,152 from the shoals, for ease of Island there is no 72 COLREGS line. We, fish greater than age 6. Sulak and identification. therefore, have defined that section of Clugston’s (1999) estimate was 7,650 The Suwannee River branches near its the unit southern boundary as 1 nm (1.9 individuals greater than 61 cm (24 in) mouth into the East Pass and West Pass. km) offshore of a straight line drawn total length and older than age 2. Pine Gulf sturgeon adults use the East Pass from the southern tip of Cat Island to and Allen (2001) estimated the and West Pass for emigration and the western tip of Ship Island. The Suwannee River subpopulation at 5,500 immigration (Mason and Clugston, eastern boundary is the line of longitude individuals age 2 to 25. Based on 1993; and Edwards et al., in prep.). The 88°18.8′W from its intersection with the intensive egg sampling efforts West pass is divided into two primary shore (Point aux Pins) to its intersection conducted between 1993 and 1998, channels—Wadley Pass, connected to with the southern boundary. The lateral Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13395 extent of Unit 8 is the MHW line on March. Lake Pontchartrain is 57.9 km Point, and at Half Moon Island each shoreline of the included water (36 mi) long, 35.4 km (22 mi) wide at (Reynolds, 1993). We have included all bodies or the entrance to rivers, bayous, its widest point, and 3 to 4.9 m (10 to of Lake Borgne as critical habitat. and creeks. 16 ft) deep (USDOC, 2002). Morrow et The Mississippi Sound is separated The Pearl River and its distributaries al. (1996) documented Gulf sturgeon from the Gulf of Mexico by a chain of flow into The Rigolets, Little Lake, and from the Pearl River system using Lake barrier islands, including Cat, Ship, Lake Borgne, the western extension of Pontchartrain (verified by tags) and Horn, and Petit Bois Islands. Natural Mississippi Sound. The Rigolets summarized existing Gulf sturgeon depths of 3.7–5.5 m (12 to 18 ft) are connect Lake Pontchartrain and Lake St. records, which indicated greater use of found throughout the Sound and a Catherine with Little Lake and Lake the eastern half of Lake Pontchartrain. channel 3.7 m (12 ft) deep has been Borgne. The Pascagoula River and its Although Rogillio et al. (2002) did not dredged where necessary from Mobile distributaries flow into Pascagoula Bay relocate any of their sonic tagged adult Bay to New Orleans (USDOC, 2002). and Mississippi Sound. Gulf sturgeon in Lake Pontchartrain, the Incidental captures and recent studies This unit provides juvenile, subadult eastern part of this lake is believed to be confirm that both Pearl River and and adult feeding, resting, and passage an important winter habitat for juveniles Pascagoula River adult Gulf sturgeon habitat for Gulf sturgeon from the and subadults (H. Rogillio, pers. comm. winter in the Mississippi Sound, Pascagoula and the Pearl River 2002). Furthermore, we believe that Gulf particularly around barrier islands and subpopulations. One or both of these sturgeon forage in Lake Pontchartrain barrier islands passes (Reynolds, 1993; subpopulations have been documented during the winter. The Lake Ross et al., 2001a; and Rogillio et al., by tagging data, historic sightings, and Pontchartrain Causeway, twin toll 2002). Pascagoula Bay is adjacent to the incidental captures as using Pascagoula highway bridges, extends 33.6 km (20.9 Mississippi Sound. Gulf sturgeon Bay, The Rigolets, the eastern half of mi) across Lake Pontchartrain from exiting the Pascagoula River move both Lake Pontchartrain, Little Lake, Lake St. Indian Beach on the south shore to east and west, with telemetry locations Catherine, Lake Borgne, Mississippi Lewisburg and Mandeville on the north as far east as Dauphin Island and as far Sound, within 1 nm (1.9 km) of the shore. Sediment data from Lake west as Cat Island and the entrance to nearshore Gulf of Mexico adjacent to the Pontchartrain indicate sediments have a Lake Pontchartrain, Louisiana (Ross et barrier islands and within the passes greater sand content east of the al., 2001a). Tagged Gulf sturgeon from (Davis et al., 1970; Reynolds, 1993; causeway than west (Barrett, 1976). the Pearl River subpopulation have been Rogillio, 1993; Morrow et al., 1998a; Most records of Gulf sturgeon from Lake located between Cat Island, Ship Island, Ross et al., 2001a; Rogillio et al., 2002; Pontchartrain are located east of the Horn Island, and east of Petit Bois and F. Parauka, pers. comm. 2002). causeway, with concentrations near Islands to the Alabama State line Substrate in these areas range from sand Bayou Lacombe and Goose Point, both (Rogillio et al., 2002). Gulf sturgeon to silt, all of which contain known Gulf on the eastern north shore (Reynolds, have also been documented within 1 nm sturgeon prey items (Menzel, 1971; 1993; and Morrow et al., 1996). While (1.9 km) off the barrier islands of Abele and Kim, 1986; and American Gulf sturgeon have also been Mississippi Sound. We, therefore, have Fisheries Society, 1989). documented west of the causeway, included 1 nm (1.9 km) offshore of the The Rigolets is an 11.3 km (7 mi) long barrier islands of Mississippi Sound. and about 0.6 km (0.4 mi) wide passage generally near the mouths of small river systems (Davis, 1970), we have Habitat used by Gulf sturgeon in the connecting Lake Pontchartrain and Lake vicinity of the barrier islands is 1.9 to excluded the western portion of Lake Borgne (U.S. Department of Commerce 5.9 m (6.2 to 19.4 ft) deep (average 4.2 Pontchartrain because we believe that (USDOC), 2002). This brackish water m (13.8 ft)), with clean sand substrata the sturgeon utilizing this area are area is used by adult Gulf sturgeon as a (Heise et al., 1999b; Ross et al., 2001a; coming from western tributaries and not staging area for osmoregulation and for and Rogillio et al., 2002). Preliminary the Pearl River. passage to and from wintering areas data from substrate samples taken in the (Rogillio et al., 2002). Lake St. Catherine Lake Pontchartrain connects by The barrier island areas indicate that all is a relatively shallow lake with depths Rigolets with Lake Borgne. Lake Borgne, samples contained lancelets (Ross et al., averaging approximately 1.2 m (4 ft), the western extension of Mississippi 2001a). Inshore locations where Gulf connected to The Rigolets by Sawmill Sound, is partly separated from sturgeon were located (Deer Island, Pass. Bottom sediments in Sawmill Pass Mississippi Sound by Grassy Island, Round Island) were 1.9 to 2.8 m (6.2 to are primarily silt; Lake St. Catherine’s Half Moon (Grand) Island and Le Petit 9.2 ft) deep and all had mud (mostly silt are composed of silt and sand (Barrett, Pass Island. Lake Borgne is and clay) substrata (Heise et al., 1999b), 1971). Incidental catches of Gulf approximately 14.3 km (23 mi) in typical of substrates supporting known sturgeon are documented from Lake St. length, 3 to 6 km (5 to 10 mi) in width Gulf sturgeon prey. Catherine and Sawmill Pass (Reynolds, and 1.8 to 3 m (6 to 10 ft) in depth 1993; and H. Rogillio, Louisiana (USDOC, 2002). Most of Lake Borgne Unit 9. Pensacola Bay System in Department of Wildlife and Fisheries, sediment is clay and silt (Barrett, 1971). Escambia and Santa Rosa Counties, pers. comm. 2002). Based on the Many Gulf sturgeon were anecdotally Florida proximity of Little Lake, Lake St. reported as taken incidentally in shrimp Unit 9 includes Pensacola Bay and its Catherine, and Sawmill Pass to The trawls in Lake Borgne 0.6 to 1.2 km (1 adjacent main bays and coves. These Rigolets and Pearl River, we believe to 2 mi) south of the Pearl River include Big Lagoon, Escambia Bay, East these areas are also used for staging and between August and October from the Bay, Blackwater Bay, Bayou Grande, feeding and, therefore, we have 1950s through the 1980s (Reynolds, Macky Bay, Saultsmar Cove, Bass Hole included them with The Rigolets as 1993). There are twenty-two additional Cove, and Catfish Basin. All other bays, critical habitat. records of Gulf sturgeon in Lake Borgne bayous, creeks, and rivers are excluded Rogillio (1990) and Morrow et al. (D. Walther, FWS, pers. comm. 2002). at their mouths. The western boundary (1996) indicated that Lake Pontchartrain Known locations are spread out around is the Florida State Highway 292 Bridge and Lake Borgne were used by Gulf the perimeter of the Lake, including at crossing Big Lagoon to Perdido Key. The sturgeon as wintering habitat, with most the mouth of The Rigolets, Violet Canal, southern boundary is the 72 COLREGS catches during late September through Bayou Bienvenue, Polebe, Alligator line between Perdido Key and Santa 13396 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

Rosa Island (defined at 33 CFR 80.810 Unit 10. Santa Rosa Sound in Escambia, shoreline and the 72 COLREGS lines at (g)). The eastern boundary is the Florida Santa Rosa, and Okaloosa Counties, passes as defined at 30 CFR 80.810 (a– State Highway 399 Bridge at Gulf Florida g). The southern boundary of the unit is Breeze, Florida. The lateral extent of Unit 10 includes the Santa Rosa 1 nm (1.9 km) offshore of the northern unit 9 is the MHW line on each boundary; the eastern boundary is the Sound, bounded on the west by the ° ′ shoreline of the included waterbodies. Florida State Highway 399 bridge in line of longitude 85 17.0 W from its intersection with the shore (near Money The Pensacola Bay system includes Gulf Breeze, Florida and the east by U.S. Bayou between Cape San Blas and five interconnected bays, including Highway 98 bridge in Fort Walton Beach, Florida. The northern and Indian Peninsula) to its intersection Escambia Bay, Pensacola Bay, with the southern boundary. Blackwater Bay, East Bay, and the Santa southern boundaries of unit 10 are Unit 11 includes winter feeding and Rosa Sound. The Santa Rosa Sound is formed by the shorelines to the MHW migration habitat for Gulf sturgeon from addressed separately in unit 10. The line or by the entrance to rivers, bayous, the Yellow River, Choctawhatchee Escambia River and its distributaries and creeks. The Santa Rosa Sound is a lagoon River, and Apalachicola River (Little White River, Dead River, and between the mainland and Santa Rosa subpopulations. Telemetry relocation Simpson River) empty into Escambia Island that connects Pensacola Bay in data suggest that these subpopulations Bay, including Bass Hole Cove, the west with Choctawhatchee Bay in feed in nearshore Gulf of Mexico waters Saultsmar Cove, and Macky Bay. The the east. The Sound extends east to west between their natal river systems (Fox et Yellow River empties into Blackwater approximately 57.9 km (35.9 mi) and al., 2002; and F. Parauka, pers. comm. Bay. The entire system discharges into varies in width between 0.32 and 3.5 km 2002). Gulf sturgeon from the the Gulf of Mexico, primarily through a (0.2 to 2.2 mi) (FDEP, 1993). The Choctawhatchee River subpopulation narrow pass at the mouth of Pensacola Intracoastal Waterway transects the have been documented both east and Bay. sound. The Santa Rosa Sound is west of Choctawhatchee Bay ( Fox et al., The Pensacola Bay system provides designated as critical habitat because we 2002; and F. Parauka, pers. comm. winter feeding and migration habitat for believe it provides one continuous 2002). During the winter of 2001–2002, Gulf sturgeon from the Escambia River migratory pathway between personnel from both USGS and FWS and Yellow River subpopulations. Over Choctawhatchee Bay, Pensacola Bay, attached pop-up satellite tags to 20 Gulf the past four years, FDEP researchers and the Gulf of Mexico for feeding and sturgeon (12 from the Suwannee River, have conducted tracking studies in the genetic interchange. Within the last 4 from the Choctawhatchee River, 2 from the Apalachicola River, and 2 from Pensacola Bay system to observe Gulf 3,000 years, periodic shoaling closed the the Yellow River) to identify winter sturgeon winter migrations. They have opening of Choctawhatchee Bay to the feeding areas in the Gulf of Mexico. Due identified specific areas in the bays Gulf of Mexico. For many years, the Santa Rosa Sound provided the only to a design flaw, errors in attachment, or where Escambia River and Yellow River way for Choctawhatchee River Gulf sturgeon’s ability to successfully shed Gulf sturgeon collect, or migrate sturgeon to migrate to the Gulf of the tags, the tags failed to report reliable through, during the fall and winter Mexico (Wakeford, 2001). Recent data with only two exceptions. One of season. These studies also identified locations of subadult and adult Gulf the Choctawhatchee River-tagged Gulf two main habitat types where Gulf sturgeon within the Santa Rosa Sound sturgeon was located in Hogtown Bayou sturgeon concentrate during winter confirm its present use by the in Choctawhatchee Bay; however, this months. Movement is generally along Choctawhatchee River subpopulations provided no new information as we the shoreline area of Pensacola Bay. (Fox et al., 2002; and F. Parauka, pers. already knew that some adult Gulf Gulf sturgeon showed a preference for comm. 2002). The Escambia and Yellow sturgeon overwinter in this bayou. The several areas in the bay, including Rivers subpopulations may also use this other operating tag had been attached to Redfish Point, Fort Dickens, and area due to its close proximity. Gulf a Yellow River Gulf sturgeon. Manual Escribano Point, near Catfish Basin sturgeon have been located mid-channel tracking in the vicinity of that Yellow (FWS, 1998; and Craft et al., 2001). and in shoreline areas in 2 to 5.2 m (6.6 River Gulf sturgeon led to the relocation Sandy shoal areas, located along the to 17.1 ft) depths and sand substrate. of another tagged Gulf sturgeon. As a south and east side of Garcon Point, The approximate length of the critical result, tagged individuals from three south shore of East Bay (Redfish Point habitat unit is 52.8 km (33 miles). different subpopulations area) and near Fair Point, appear to be Bridges were chosen as the eastern and (Choctawhatchee, Yellow, and commonly used, especially in the fall western boundaries for ease in Apalachicola Rivers) were relocated on and early spring. During midwinter, identification. Any portion of the sound multiple occasions in close proximity to sturgeon are commonly found in deep not included in this unit is captured by one another, suggesting an important holes located north of the barrier island the adjacent critical habitat units. feeding area just offshore of Mexico at Ft. Pickens, south of the Pensacola Beach, Crooked Island East, and Unit 11. Florida Nearshore Gulf of Crooked Island West over sand Naval Air Station, and at the entrance of Mexico Unit in Escambia, Santa Rosa, substrate. These data suggest that Gulf Pensacola Pass. The depth in these areas Okaloosa, Walton, Bay, and Gulf sturgeon from the Yellow River, ranges from 6 to 12.1 m (20 to 40 ft). Counties in Florida Choctawhatchee River, and Other areas where tagged fish were Unit 11 includes a portion of the Gulf Apalachicola River remain within 1.6 frequently located include Escribano of Mexico as defined by the following km (1 mi) of the coastline between these Point, near Catfish Basin, and the mouth boundaries. The western boundary is river systems (F. Parauka, pers. comm. of the Yellow River. Previous incidental the line of longitude 87°20.0′W 2002). Examination of bathymetry data captures of Gulf sturgeon have been (approximately 1 nm (1.9 km) west of along the Gulf of Mexico coastline recorded in Pensacola Bay, Big Lagoon, Pensacola Pass) from its intersection between the Pensacola Bay and and Bayou Grande (Reynolds, 1993; and with the shore to its intersection with Apalachicola Bay reveals that depths of Lorio, 2000). the southern boundary. The northern less than 6 m (19.7 ft), where Gulf boundary is the MHW of the mainland sturgeon are generally found, are all Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13397 contained within 1 nm (1.9 km) from Unit 13. Apalachicola Bay in Gulf and Apalachicola Bay, East Bay, St. George shore. Gulf nearshore substrate contains Franklin County, Florida Sound, St. Vincent Sound, and Indian unconsolidated, fine-medium grain Unit 13 includes the main body of Lagoon (Swift et al., 1977; Wooley and sands which support crustaceans such Apalachicola Bay and its adjacent Crateau, 1985; Odenkirk, 1989; FWS, as mole crabs, sand fleas, various sounds, bays, and the nearshore waters 2000; and F. Parauka, pers. comm. amphipod species, and lancelets of the Gulf of Mexico. These consist of 2002). Gulf sturgeon have also been (Menzel, 1971; Abele and Kim, 1986; St. Vincent Sound, including Indian documented in Indian Pass, West Pass, and American Fisheries Society, 1989). Lagoon; Apalachicola Bay including East Pass, and just north of Dog Island Based on movement patterns, it appears Horseshoe Cove and All Tides Cove; (Wooley and Crateau, 1985; Odenkirk, these Gulf sturgeon were feeding in the East Bay including Little Bay and Big 1989; FWS, 2000; and F. Parauka, pers. nearshore Gulf of Mexico on route to Bay; and St George Sound, including comm. 2002). Substantial weight gains their natal rivers. Given this Rattlesnake Cove and East Cove. Barrier and the presence of suitable habitat for information, we have included the Island passes (Indian Pass, West Pass, prey items indicate that Gulf sturgeon nearshore (up to 1 nm (1.9 km)) Gulf of and East Pass) are also included. Sike’s are feeding while within these bodies of Mexico waters in this unit between Cut is excluded from the lighted buoys water (Wooley and Crateau, 1985; and Pensacola and Apalachicola Bays. on the Gulf of Mexico side to the day Odenkirk, 1989). These areas are also Unit 12. Choctawhatchee Bay in boards on the bay side. The southern used for accessing adjacent marine and Okaloosa and Walton Counties, Florida unit boundary includes water extending estuarine feeding areas designated in into the Gulf of Mexico 1 nm (1.9 km) unit 11. Gulf sturgeon are believed to Unit 12 includes the main body of from the MHW line of the barrier migrate from Apalachicola Bay into the Choctawhatchee Bay, Hogtown Bayou, islands and from 72 COLREGS lines Gulf of Mexico following prevailing Jolly Bay, Bunker Cove, and Grassy between the barrier islands (defined at currents and exiting primarily through Cove. All other bayous, creeks, and 33 CFR 80.805 (e–h)); the western the two most western passes (Indian and rivers are excluded at their mouths/ boundary is the line of longitude ° ′ West) (Odenkirk, 1989). No Gulf entrances. The western unit boundary is 85 17.0 W from its intersection with the sturgeon have been documented using the U.S. Highway 98 bridge at Fort shore (near Money Bayou between Cape Sike’s Cut, a man-made opening Walton Beach, Florida; the southern San Blas and Indian Peninsula) to its established in the 1950s bisecting Little intersection with the southern boundary is the 72 COLREGS line across St. George Island and St. George Island; boundary. The eastern boundary of the East (Destin) Pass as defined at 33 CFR therefore, Sike’s Cut is excluded from unit is formed by a straight line drawn 80.810 (f). The lateral extent of unit 12 our designation. is the MHW line on each shoreline of from the shoreline of Lanark Village at ° ′ ° ′ the included water bodies. 29 53.1 N, 84 35.0 W to a point that is Tag return data from incidental 1 nm (1.9 km) offshore from the captures and recent relocation data Choctawhatchee Bay provides northeastern extremity of Dog Island at document Gulf sturgeon south of the important habitat for maintaining the 29°49.6’N, 84°33.2’W. The lateral extent Apalachicola barrier islands, generally health of subadult and adult Gulf of unit 13 is the MHW line on each within a mile of the shoreline sturgeon as evidenced by a large number shoreline of the included water bodies (Odenkirk, 1989; and FWS, 2000). On of Gulf sturgeon overwintering in the or the entrance of excluded rivers, June 8, 1992, a commercial shrimp system (FWS, 1997; FWS 1998; and bayous, and creeks. fisherman provided anecdotal Parauka et al., in press). The The Apalachicola River empties into information that he and other shrimp Choctawhatchee Bay offers a feeding Apalachicola Bay near Little Bay and fishermen, had caught hundreds of Gulf area for both subadults and adults Big Bay. The Apalachicola Bay system, sturgeon, with estimated weights (FWS, 1998; and Fox et al., 2002). a highly productive lagoon-and-barrier- generally between 22.7 to 27.2 kg (50 to Tagged subadults showed a preference island complex, consists of the bay 60 lbs), in the same location, each for shoreline habitats which are proper, East Bay, St. George Sound, spring (April, May, and June), for the predominated by sandy substrates, low Indian Lagoon, and St. Vincent Sound salinity and water depths less than 3 m past thirty years (1962 to 1992) (F. (Wakeford, 2001). It is relatively Parauka, pers. comm. 2002). The (10 ft) (FWS, 1997; FWS, 1998; and shallow, averaging 2 to 3 m (6.6 to 9.8 Parauka et al., in press). Most adult Gulf fishermen described the location as ft) in depth (Livingston, 1980). The south of St. George Island, within a few sturgeon were located in shallow water benthic habitat type most often found in hundred yards of the beach. He (2 to 4 m (6.6 to 13.1 ft)) with Apalachicola Bay system is soft described the capture areas as being predominantly (greater than 80 percent) sediment, comprising approximately 70 adjacent to a shoal extending sandy sediment (Fox et al., 2002). Ghost percent of the estuarine area shrimp, a component of the sturgeon (Livingston, 1980). Its composition of approximately 3.2 km (2 mi) offshore. diet, are typically found in substrates sand, clay, and silt varies considerably Examination of bathymetric data shows ranging from sandy mud to organic silty depending on the location in the bay. that there are several shoals in that sand (Felder and Lovett, 1989), and The Apalachicola Bay connects with the general vicinity. Since we are unable to their densities were greatest nearshore Gulf of Mexico through several passes, confirm the specific location of the area along the middle and eastern portions of including Indian Pass, West Pass, East described by this fisherman, we are the Choctawhatchee Bay (Heard et al., Pass, and Sike’s Cut, a man-made extending this critical habitat unit only 2000), the area frequented by the Gulf opening established in the mid 1950s 1 nm (1.9 km) offshore of the barrier sturgeon (Fox et al., 2002). We have (Odenkirk, 1989). islands bordering Apalachicola Bay and included the deeper central portion of Unit 13 provides winter feeding Cape San Blas, a distance for which we the Bay in unit 12 as critical habitat migration habitat for the Apalachicola have supporting telemetry data. In doing because the Gulf sturgeon are known to River Gulf sturgeon subpopulation. Gulf so, we will capture some of the shallow use the deeper bay waters for movement sturgeon have been documented by shoals extending south of the barrier between the shoreline areas (Fox et al., sightings, incidental captures, and islands, which we believe provide 2002). telemetry studies throughout important foraging substrate. 13398 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

Unit 14. Suwannee Sound in Dixie and brachiopods (Glottida pyramida), to encompass these areas that we Levy Counties, Florida unidentified pelagic shrimps, believe are essential for the conservation Unit 14 includes Suwannee Sound polychaetes, unidentified marine of the Gulf sturgeon. The northern and a portion of adjacent Gulf of Mexico molluscs, starfish and sea cucumbers. extent of the tracked sturgeon waters extending 9 nm from shore (16.7 Carr et al. (1996b) found that adult Gulf concentration area depicted in Edwards km) out to the State territorial water sturgeon feed primarily on brachiopods et al. (in prep.) corresponds boundary. Its northern boundary is and ghost shrimp, before entering the approximately to the northern-most formed by a straight line from the river. The consumption of brachiopods extremity of Big Pine Island. We, northern tip of Big Pine Island (at as a primary Gulf sturgeon food source therefore, have chosen that easy-to- approximately 29°23′N, 83°12′W) to the is currently being researched by the identify location for the northern limit Federal-State boundary at 29°17′N, University of Florida. Numerous of this critical habitat unit. The southern 83°21′W; the southern boundary is underwater beds containing extent of the concentration area formed by a straight line from the brachiopods have recently been located depicted in Edwards et al. (in prep.) southern tip of Richards Island (at in the Suwannee River estuary and corresponds approximately to Richards approximately 29°11′N, 83°04′W) to the adjacent areas in Suwannee Sound (D. Island. In addition to the telemetry data, Federal-State boundary at 29°04′N, Murie and D. Parkyn, pers. comm. Gulf sturgeon sightings are frequently 83°15′W. The lateral extent of unit 14 is 2002). Recent stomach content analyses reported around Deer Island and Derrick the MHW line along the shorelines and using a non-lethal method of stomach Key (F. Chapman, UF, pers. comm. the mouths of the Suwannee River (East pumping (lavaging) support that Gulf 2002). Derrick Key is approximately 1 m and West Pass), its distributaries and sturgeon from the Suwannee River (1.6 km) offshore of Richards Island. other rivers, creeks, or water bodies. subpopulation feed primarily on Based on these data, we are designating The Suwannee River system is unique brachiopods, and to lesser amounts on the southernmost extremity of Richards among Gulf sturgeon river systems in ghost shrimp, amphipods, and worms Island for the southern limit of unit 14. prior to entering the river (D. Murie and that the river flows directly into the Although Gulf sturgeon have been Suwannee Sound and Gulf of Mexico D. Parkyn, pers. comm. 2002). Gulf sturgeon tracking and relocation relocated both north and south of this without any intervening barrier islands. critical habitat area (Reynolds, 1993; F. Suwannee Sound is a shallow (typically data were used to delineate the Chapman, pers. comm. 2002; and less than 2 m (6.6 ft)), estuarine basin, boundaries of this critical habitat unit. Edwards et al., in prep.), records are a little less than 10 nm (8 km) long and In 1998, 18 out of 19 sonic-tagged Gulf relatively rare and encompass a little over 4 nm (8 km) wide at its sturgeon were consistently relocated approximately 643.7 km (400 mi) of widest point. It is enclosed on its and found to be concentrated in a 2 coastline (from Charlotte Harbor to seaward side by Suwannee Reef, an relatively small area (115 km (44.4 2 Apalachicola Bay). While Gulf sturgeon approximately 14.6 nm (27 km) long arc mi )) offshore of Suwannee Sound may congregate in additional shallow of oyster reefs and shoals (Edwards et (Edwards et al., in prep.). Specific water areas or migrate throughout the al., in prep.). The bathymetry of waters locations within the concentration area entire area, without additional off the coastline and north and south of were around Waldley Channel, West Suwannee Sound is different from the Gap, and Hedemon Reef. The farthest information we cannot include waters adjacent to other systems. offshore area was Hedemon Reef, additional areas as critical habitat. Shallow waters are not confined to the approximately 5 to 6 nm (9.3 to 11.1 Land Ownership nearshore environment, and depths less km) from the Suwannee River opening. than 6 m (19.7 ft) extend 9 to 10 mi Previous telemetry data and tag Upon statehood in 1811 for Louisiana, (14.5 to 16.1 km) off the coastline. recaptures documented Gulf sturgeon 1817 for Mississippi, 1819 for Alabama, Telemetry data confirm that subadult using Gulf of Mexico waters as far out and 1845 for Florida, these States were and adult Gulf sturgeon leave the river as 9 nm (16.7 km) (Sulak and Clugston, granted ownership of lands beneath during October and November and enter 1999; and Edwards et al., in prep.). tidally influenced and navigable waters Suwannee Sound and the nearshore More recently, on March 22, 2002, two up to the high water mark (Pollard v. Gulf of Mexico (Carr et al., 1996b; and Gulf sturgeon were observed jumping in Hagan, 44 U.S. (3 How.) 212 (1845)). It Edwards et al., in prep.). Tracking data the area of 29°14′N, 83°18′W, further is possible that prior sovereigns or the indicate that Gulf sturgeon move slowly substantiating the Gulf sturgeon’s use of States have made grants to private and remained offshore of Suwannee shallow State waters further offshore parties which include lands below mean Sound in nearby shallow (less than 6 m (greater than 6 nm (11.1 km)) (Harris, high waters of the navigable waters (19.7 ft)) marine/estuarine habitats for a pers. comm. 2002). Benthic samples included within this rule. Thus, this period of two months, until at least mid taken where the fish were jumping were rule may affect limited parcels of private or late December. Overall movement comprised of fine sand substrate and land. However, we believe that the patterns are punctuated by periods of lancelets. Although lancelets are majority of lands designated here as slow movement within small areas, recovered less frequently than critical habitat are owned by the States suggesting foraging (Edwards et al., in brachiopods in the stomachs of of Louisiana, Mississippi, Alabama, and prep.). Mason and Clugston (1993) Suwannee River Gulf sturgeon, this may Florida. The majority of riparian lands found large, immigrating Suwannee be a result of quicker decomposition of bordering riverine critical habitat units River Gulf sturgeon fed on nearshore lancelets during digestion compared to are in private ownership. Table 3 coastal shelf organisms lancelets brachiopods. Our designation, therefore, summarizes public lands adjacent to (Branchiostoma caribaeum), includes waters out to 9 nm (16.7 km) 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. Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13399

TABLE 3.—PUBLIC LANDS ADJACENT TO DESIGNATED CRITICAL HABITAT UNITS—Continued Unit 5. Choctawhatchee—Choctawhatchee River SF, Choctawhatchee River Delta Preserve, Choctawhatchee River WtrMA. Unit 6. Apalachicola—Chattahoochee Nature Park, 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 Sta- tion, 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 Recre- ation 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, 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 provide reasonable and prudent estuarine and marine prey for juvenile alternatives to the action, if any are and adult Gulf sturgeon, within a Section 7 Consultation identifiable. Reasonable and prudent designated critical habitat unit, such as Section 7(a)(2) of the Act requires alternatives are actions identified during dredging; dredged material disposal; Federal agencies, including us, to insure consultation that can be implemented in channelization; in-stream mining; and that their actions are not likely to a manner consistent with the intended land uses that cause excessive turbidity jeopardize the continued existence of a purpose of the proposed action, are or sedimentation. listed species or result in the consistent with the scope of the action (2) Actions that would appreciably destruction or adverse modification of agency’s authority and jurisdiction, are reduce the suitability of Gulf sturgeon designated critical habitat. The economically and technologically spawning sites for egg deposition and regulatory effects of a critical habitat feasible, and would likely avoid the development within a designated designation under the Act are triggered destruction or adverse modification of critical habitat unit, such as through the provisions of section 7, critical habitat (50 CFR 402.02). impoundment; hard-bottom removal for which applies to all activities navigation channel deepening; dredged conducted, authorized, or funded by a Reinitiation of Prior Consultations material disposal; in-stream mining; and Federal agency (Federal actions). Following designation of critical land uses that cause excessive Regulations implementing this habitat, regulations at 50 CFR 402.16 sedimentation. interagency cooperation provision of the require a Federal agency to reinitiate (3) Actions that would appreciably Act are codified at 50 CFR part 402. consultation for previously reviewed reduce the suitability of Gulf sturgeon Individuals, organizations, States, local actions that may affect critical habitat riverine aggregation areas, also referred governments, and other non-Federal and over which the agency has retained to as resting, holding, and staging areas, entities are affected by the designation discretionary involvement or control. used by adult, subadult, and/or of critical habitat if their actions occur juveniles, believed necessary for Activities That May Destroy or on Federal lands, require Federal minimizing energy expenditures and Adversely Modify Gulf Sturgeon Critical authorization, or involve Federal possibly for osmoregulatory functions, Habitat funding. such as dredged material disposal Section 4(b)(8) of the Act requires us, upstream or directly within such areas; Consultation for Designated Critical in any proposed or final rule and other land uses that cause excessive Habitat designating critical habitat, to briefly sedimentation. If a Federal action may affect a listed describe and evaluate those activities (4) Actions that would alter the flow species or its designated critical habitat, that may adversely modify such habitat, regime (the magnitude, frequency, the action agency must initiate or that may be affected by such duration, seasonality, and rate-of-change consultation with us (50 CFR 402.14). designation, to the maximum extent of fresh water discharge over time) of a Through this consultation, we would practicable. Activities that may destroy riverine critical habitat unit such that it advise the agency whether the action or adversely modify critical habitat for is appreciably impaired for the purposes would likely jeopardize the continued the Gulf sturgeon, or that may be of Gulf sturgeon migration, resting, existence of the species or destroy or affected by such designation, include, staging, breeding site selection, adversely modify its critical habitat, or but are not limited to the following courtship, egg fertilization, egg both. actions when authorized, funded or deposition, and egg development, such When we issue a biological opinion carried out by a Federal agency: as impoundment; water diversion; and that concludes that an action is likely to (1) Actions that would appreciably dam operations. result in the destruction or adverse reduce the abundance of riverine prey (5) Actions that would alter water modification of critical habitat, we must for larval and juvenile sturgeon, or of quality within a designated critical 13400 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations habitat unit, including temperature, consultations, which followed a finding activities that require Federal funding or salinity, pH, hardness, turbidity, oxygen that the Federal action may affect Gulf permits. Designation of critical habitat is content, and other chemical sturgeon, have dealt exclusively with applicable to all activities approved, characteristics, such that it is navigation projects, oil and gas leases, funded, or carried out by Federal appreciably impaired for normal Gulf pipelines, review of water quality agencies. sturgeon behavior, reproduction, standards, and disaster recovery Jurisdictional Responsibilities for the growth, or viability, such as dredging; activities, and have resulted in Management of the Gulf Sturgeon dredged material disposal; biological opinions. Also, the Gulf channelization; impoundment; in- sturgeon was mentioned in several When the Gulf sturgeon was listed on stream mining; water diversion; dam biological opinions that were triggered September 30, 1991 (56 FR 49653), the operations; land uses that cause by may-affect determinations for other Services had not resolved jurisdictional excessive turbidity; and release of listed species. To date, none of our responsibilities for the management of chemicals, biological pollutants, or opinions have concluded that a the Gulf sturgeon. Both Services signed heated effluents into surface water or proposed Federal action would the listing rule in agreement that the connected groundwater via point jeopardize the continued existence of species required protection. The final sources or dispersed non-point sources. the Gulf sturgeon. listing rule stated that until the (6) Actions that would alter sediment Previous biological opinions for the jurisdictional issue was resolved, the quality within a designated critical Gulf sturgeon have included FWS would be responsible for the habitat unit such that it is appreciably discretionary conservation species once the listing became impaired for normal Gulf sturgeon recommendations to the action agency. effective. Although the issue has never behavior, reproduction, growth, or Conservation recommendations are been formally resolved, we have been viability, such as dredged material activities that would avoid or minimize operating under a verbal agreement in disposal; channelization; impoundment; the adverse effects of a proposed action which the FWS maintains the lead for in-stream mining; land uses that cause on a listed species or its critical habitat, recovery actions. Consultation excessive sedimentation; and release of help implement recovery plans, or responsibilities were divided, with the chemical or biological pollutants that develop information useful to the FWS performing consultation review for accumulate in sediments. species’ conservation. projects impacting the Gulf sturgeon in (7) Actions that would obstruct Previous biological opinions for the the riverine and estuarine habitats, and migratory pathways within and between Gulf sturgeon also have included non- NMFS performing consultation review adjacent riverine, estuarine, and marine discretionary reasonable and prudent for projects affecting the species in critical habitat units, such as dams, measures, with implementing terms and marine habitats. dredging, point-source-pollutant conditions, which are designed to We formalize here Gulf sturgeon discharges, and other physical or minimize the proposed action’s jurisdictional responsibilities. In order chemical alterations of channels and incidental take of Gulf sturgeon. Section to enhance consultation coordination passes that restrict Gulf sturgeon 3(18) of the Act defines the term take as efficiency for the action agencies, the movement. ‘‘to harass, harm, pursue, hunt, shoot, following structure is adopted. The FWS wound, kill, trap, capture or collect, or will maintain primary responsibility for Previous Section 7 Consultations to attempt to engage in any such recovery actions in fresh water and the Many section 7 consultations for conduct.’’ NMFS will assist in and continue to Federal actions affecting the Gulf The conservation recommendations fund recovery actions pertaining to sturgeon and its habitat have preceded and reasonable and prudent measures estuarine and marine habitats. In this critical habitat designation. The provided in previous Gulf sturgeon riverine units, the FWS will be action agencies have included the biological opinions have included responsible for all consultations USACE, other DOD agencies, the U.S. enforcement of marine debris and trash regarding Gulf sturgeon and critical Coast Guard, the National Park Service, regulations; avoidance of dredging and habitat. In estuarine units, we will the Federal Highway Administration, disposal in deeper portions of the divide responsibility based on the the Minerals Management Service channel; monitoring and reporting of action agency involved. The FWS will (MMS), the Federal Energy Regulatory ‘‘take’’ events during project consult with the Department of Commission, and others. We have also construction; operation of equipment so Transportation, EPA, the U.S. Coast conducted intra-service section 7 as to avoid or minimize take; monitoring Guard, and the Federal Emergency consultations on our own actions. of post-project habitat conditions; Management Agency. NMFS will Since listing, the FWS has conducted monitoring of project-area Gulf sturgeon consult with the DOD, USACE, MMS, 320 informal and 14 formal subpopulations; limiting of dredging to and any other Federal agencies not consultations, and NMFS has conducted the minimum dimensions necessary; mentioned here explicitly. In marine 70 informal and 4 formal consultations limiting of the depth of dredged units, NMFS will be responsible for all involving Gulf sturgeon. The informal material placed in disposal areas; consultations regarding Gulf sturgeon consultations, all of which concluded arrangement of the sequence of areas for and critical habitat. For any Federal with a finding that the Federal action dredging to minimize potential harm; projects that extend into the jurisdiction would not affect or would not likely screening of intake structures; of both the Services, as defined above, adversely affect the Gulf sturgeon, avoidance of riverine dredging during FWS will be the lead consulting agency, addressed a wide range of actions spawning months; limiting of tow times and coordinate internally with NMFS. including navigation, beach of trawl nets for hurricane debris Each agency will conduct its own intra- nourishment, Gulf of Mexico fishery cleanup; addition of specific measures agency consultations as necessary. management planning, oil and gas for species protection to oil spill leases, power plants, bridges, pipelines, contingency plans; and funding of Exclusions Under Section 4(b)(2) breakwaters, rip-rap, levees and other research useful for Gulf sturgeon Section 4(b)(2) of the Act requires us flood-protection structures, piers, conservation. to designate critical habitat on the basis bulkheads, jetties, military actions, and The designation of critical habitat will of the best scientific and commercial in-stream gravel mining. The formal only impact those private landowner information available, and to consider Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13401 the economic and other relevant the river mouth (rkm 0 (rmi 0)) to the unlikely to be appreciably diminished impacts of designating a particular area river crossing with the CSX railroad from their current baseline by Federal as critical habitat. We may exclude areas bridge, approximately 2.4 km (1.5 mi) actions in the channels. from critical habitat upon a north of the river mouth. This channel In Unit 2, Gulf sturgeon use the West determination that the benefits of such is generally marked on the USACE’s and East distributaries of the Pascagoula exclusions outweigh the benefits of Alabama-Mississippi stream mileage River during spring and fall migrations specifying such areas as critical habitat. tables with drainage areas (USACE (Ross et al., 2001b). Summer resting We cannot exclude areas from critical 1985). areas have been consistently habitat when the exclusion will result in (2) Unit 8. Lake Pontchartrain, Lake documented on the Pascagoula River the extinction of the species concerned. St. Catherine, The Rigolets, Little Lake, (Ross et al., 2001a and b). The Lake Borgne, and Mississippi Sound in Pascagoula River Harbor is on the East Economic Impacts Jefferson, Orleans, St. Tammany, and Pascagoula River distributary, a small Following the publication of the St. Bernard Parish, Louisiana, Hancock, portion of this overall unit, but proposed critical habitat designation, a Jackson, and Harrison Counties in consistently used for migration. draft economic analysis was conducted Mississippi, and in Mobile County, Unit 8 provides juvenile, subadult to estimate the potential economic Alabama.—The major shipping channel and adult feeding, resting, and passage impact of the designation, in accordance of this unit is the GIWW and the habitat for Gulf sturgeon from the with the recent decision in the N.M. approach channels to the Port of Pascagoula and the Pearl River Cattlegrowers Ass’n v. U.S. Fish and Pascagoula. Both channels are generally subpopulations. The Mississippi Sound Wildlife Serv., 248 F.3d 1277 (10th Cir. marked on USGS topographic maps and is separated from the Gulf of Mexico by 2001). The draft analysis was made maps published for the public by the a chain of barrier islands, including Cat, publically available for review on Corps of Engineers. The specific areas Ship, Horn, and Petit Bois Islands. August 8, 2002. We accepted comments being excluded are marked by Natural depths of 3.7 to 5.5 m (12 to 18 on the draft analysis until October 7, navigation buoys maintained by the U.S. ft) are found throughout the Sound and 2002. Coast Guard. a channel 3.7 m (12 ft) deep has been Our draft economic analysis evaluated (3) Unit 9: Pensacola Bay System in dredged where necessary from Mobile the potential future section 7 effects, Escambia and Santa Rosa Counties, Bay to New Orleans (USDOC, 2002). including indirect effects, associated Florida.—The major shipping channels Incidental captures and recent studies with designating critical habitat for the of this unit are in the southern portion confirm that both Pearl River and Gulf Sturgeon. The categories of of Pensacola Bay and serve the Port of Pascagoula River adult Gulf sturgeon potential costs considered in the Pensacola and the Pensacola Naval Air winter in the Mississippi Sound, analysis included the costs associated Station. These channels are generally particularly around barrier islands and with: (1) Conducting section 7 marked on USGS topographic maps and barrier islands passes (Reynolds, 1993; consultations associated with the listing maps published for the public by the Ross et al., 2001a; and Rogillio et al., or with the designation of critical Corps of Engineers. The specific areas 2002). Gulf sturgeon are frequently habitat, including incremental being excluded are marked by found at the mouths of the barrier island consultations and technical assistance; navigation buoys maintained by the U.S. passes (Ross et al., 2001a) adjacent to (2) modifications to projects, activities, Coast Guard. channels used by recreational and or land uses resulting from the section The Services have decided to exclude commercial craft entering and exiting 7 consultations; (3) indirect economic these areas after balancing the benefits the Gulf of Mexico. The GIWW is a impacts on local industries and of excluding against the benefits of small band traversing this unit from east enterprises resulting from the physical including such areas as critical habitat. to west. changes to habitat areas that may be In the absence of other relevant factors, Unit 9 includes Pensacola Bay and its associated with project modifications if excluding an area from a critical adjacent main bays and coves. These (e.g., regional economic impacts). The habitat designation will relieve a include Big Lagoon, Escambia Bay, East most likely economic effects of critical negative economic impact, and at the Bay, Blackwater Bay, Bayou Grande, habitat designation are on activities same time including the area fails to Macky Bay, Saultsmar Cove, Bass Hole funded, authorized, or carried out by a confer a counter-balancing positive Cove, and Catfish Basin. All other bays, Federal agency. benefit to the species, then the benefits bayous, creeks, and rivers are excluded Following the close of the comment of excluding the area from critical at their mouths. The Pensacola Bay period on the draft economic analysis, habitat outweigh the benefits of system includes five interconnected a final analysis was completed that including it. The results of this type of bays, including Escambia Bay, incorporated public comments on the evaluation will vary significantly Pensacola Bay, Blackwater Bay, East draft analysis and made other changes depending on the landowners, Bay, and the Santa Rosa Sound. The in the draft. Based on the draft and final geographic areas, and species involved. Escambia River and its distributaries economic analyses, and in consideration (Little White River, Dead River, and of all other relevant impacts of the (1) Benefits of Inclusion Simpson River) empty into Escambia designation, the Services are excluding The benefits of including these areas Bay, including Bass Hole Cove, under Section 4(b)(2) major shipping in the critical habitat designation is low. Saultsmar Cove, and Macky Bay. The channels, as identified on standard While Units 2, 8, and 9 are essential to Yellow River empties into Blackwater navigation charts and marked by buoys, the conservation of the Gulf sturgeon, Bay. The entire system discharges into in the following three units: the navigation channels contained the Gulf of Mexico, primarily through a (1) Unit 2. Pascagoula River System in within each of these units constitutes a narrow pass at the mouth of Pensacola Forrest, Perry, Greene, George, Jackson, small proportion of the individual unit. Bay. The major shipping channel in this Clarke, Jones, and Wayne Counties, In areas that are frequently maintained unit is the GIWW and extends to the Mississippi.—The major shipping by dredging (e.g. entrance channels to Port of Pensacola and Pensacola Naval channel of this unit is the southernmost the Port of Pascagoula), the primary Air Station. 2.4 km (1.5 mi) of the Pascagoula River. constituent elements for sturgeon that The Pensacola Bay system provides The specific area excluded extends from are still present in the channels are winter feeding and migration habitat for 13402 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

Gulf sturgeon from the Escambia River large dredges, elevated turbidity causing years would exceed the projected $22.7 and Yellow River subpopulations. increased siltation on feeding or million cost of consultations on Sturgeon movement through this area is spawning areas, and possible removal of operation and maintenance of generally along the shoreline area of food prey. Numerous formal and navigation projects set forth in the final Pensacola Bay. Gulf sturgeon showed a informal consultations on dredging economic analysis. This section 4(b)(2) preference for several areas in the bay, activities are anticipated in the analysis also considered the possibility including Redfish Point, Fort Pickens, proposed critical habitat units over the that the greater costs projected in the and Escribano Point, near Catfish Basin next ten years. draft economic analysis may be (FWS, 1998; and Craft et al., 2001). Potential project modifications incurred. Forecast costs are associated Sandy shoal areas, located along the specific to dredging and disposal with expected administrative south and east side of Garcon Point, projects, and for which we have requirements and project modifications south shore of East Bay (Redfish Point concerns regarding their potential that may be recommended by the area) and near Fair Point, appear to be implications, include: Services during the consultation commonly used, especially in the fall • Minimize extent of dredging process. To the extent that project and early spring. During midwinter, activity. In past consultations, FWS has modifications due to a critical habitat sturgeon are commonly found in deep requested that proposed dredging designation may result in delays or a holes located north of the barrier island projects be limited to proposed depths reduction in channel capacity, the at Ft. Pickens, south of the Pensacola only. Less likely, USACE could avoid secondary economic effects may be Naval Air Station, and at the entrance of dredging in deeper portions of the high. Pensacola Pass. The depth in these areas channel for riverine dredging projects, (3) The Benefits of Exclusion Outweigh ranges from 6 to 12.1 m (20 to 40 ft). limit dredging of navigation channels to the Benefits of Inclusion Other areas where tagged fish were the minimum dimensions necessary, frequently located include Escribano avoid performing advanced Based on the above considerations, Point, near Catfish Basin, and the mouth maintenance activities, or use silt and consistent with the direction of the Yellow River. Previous incidental curtains to enclose dredging sites when provided in section 4(b)(2) of the Act, captures of Gulf sturgeon have been dredging in shallow water. For we have determined that the benefits of recorded in Pensacola Bay, Big Lagoon, hydraulic dredging, USACE may raise excluding major shipping channels as and Bayou Grande (Reynolds, 1993; and the cutter head above the bottom during critical habitat outweigh the benefits of Lorio, 2000). pipeline clearing and keep it as close to including them as critical habitat for the In sum, the Services believe that a the surface as practicable while water is Gulf sturgeon. This conclusion is based critical habitat designation for the Gulf being pumped from the pipeline. on the following factors: The benefits of sturgeon would provide a relatively low • Sequence dredging. For example, if designating critical habitat in the major level of additional regulatory a dredging project includes both a river shipping channels of these units is low conservation benefit to the species. mouth and a channel into a bay, USACE because the areal extent of the shipping may arrange the project to dredge the channels is a very small proportion of (2) Benefits of Exclusion estuary first and dredge the river second the entire unit. In addition the A major economic impact identified so that areas more sensitive to turbidity frequently maintained portions of the in the draft economic analysis was on and hypoxia are dredged during a cooler major shipping channels are altered to dredging projects of the USACE. USACE time frame. an extent that any primary constituent • plans the location and timing of Dredging windows. USACE has elements for sturgeon that are still dredging projects to ensure that channel expressed concern about the effect of present in the channels are unlikely to reliability is always maintained. dredging windows on its operations. In be appreciably diminished from their Frequency of dredging varies widely, past informal consultations, dredging current baseline by Federal actions in from almost annual maintenance windows have been recommended to the channels. The benefits of excluding dredging to once every ten or twenty avoid entrainment in the dredge or the these areas may be high if critical years, depending on the level of use of preclusion of movement past the dredge habitat designation were to increase the the waterway for shipping and the during migratory periods, since frequency of modifications to dredging natural rate of sediment deposition. The avoiding work during times when practices or result in delays in major navigation channels must be sturgeon are known to be in the direct maintaining channel depth. Therefore, maintained to Congressionally vicinity of the project is the most the Services believe that the benefits of authorized depths and widths to allow effective way to avoid harm to the exclusion outweigh the benefits of shippers to enter ports. Failure to species. If USACE cannot avoid including these areas as critical habitat. maintain the navigation channels dredging within the time frames accordingly greatly affects shippers who suggested in an informal consultation, (4) Exclusions Within These Units Will may be forced to use smaller vessels, USACE will likely need to initiate a Not Cause Extinction of the Species light load (i.e., remove shipped goods to formal consultation with the Services These exclusions will not cause the reduce weight and therefore the depth during which modifications to the extinction of the Gulf sturgeon. of the barge), use alternative modes of project other than dredging windows Although the shipping channels may transport, such as rail or truck transport, would be considered. provide food resources needed in the or travel on to another port. All of these It is possible that critical habitat could winter months, other large areas of prey alternatives increase the cost of influence the Services to be more likely and corridors for migration are available transporting goods. In extreme cases, to impose one or more of these measures in the remainder of the units to prevent commercial facilities may close and to prevent habitat modification. the extinction of the species. economic activities may transfer to If dredging windows and other other locations. measures are required in consultation, Economic Analysis The major risks of dredging projects to the present value of expected direct Section 4(b)(2) of the Act requires us sturgeon are entrainment in dredges, costs of implementation of section 7 for to designate critical habitat on the basis prevention of migratory passage through these activities that may affect the of the best scientific information channels and inlets due to blockage by sturgeon or its habitat over the next ten available, and to consider the economic Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13403 and other relevant impacts of listing the species. Given the Regulatory Flexibility Act (5 U.S.C. 601 designating a particular area as critical uncertainty regarding the et seq.) habitat. We may exclude areas from implementation of project modifications Under the Regulatory Flexibility Act critical habitat upon a determination for predicted projects concerning (5 U.S.C. 601 et seq., as amended by the that the benefits of such exclusions dredging and disposal modifications, a Small Business Regulatory Enforcement outweigh the benefits of specifying such probability of adoption ratio was used Fairness Act (SBREFA) of 1996), areas as critical habitat. We cannot in the final economic analysis based on whenever an agency is required to exclude such areas from critical habitat the rate that the Services recommended publish a notice of rulemaking for any when such exclusion will result in the various modifications in past formal and proposed or final rule, it must prepare extinction of the species. informal consultations where the and make available for public comment Following the publication of the proposed action would have impacted a regulatory flexibility analysis that proposed critical habitat designation, a the sturgeon as well as its habitat. describes the effects of the rule on small draft economic analysis was conducted Only those areas essential to the entities (i.e., small businesses, small to estimate the potential economic effect conservation of the Gulf sturgeon have of the proposed designation. The draft organizations, and small government been included in the critical habitat analysis was made publicly available for jurisdictions). However, no regulatory designation; the designation does not review on August 8, 2002. We accepted flexibility analysis is required if the comments on the draft analysis until encompass the entire area currently head of the agency certifies the rule will October 7, 2002. Our draft economic occupied or utilized by the species, nor not have a significant economic impact analysis evaluated potential future does it include any currently on a substantial number of small effects associated with the listing of the unoccupied areas. The economic entities. Gulf sturgeon as a threatened species analysis documents that the costs of SBREFA amended the Regulatory under the Act, as well as any potential including any particular unit range from Flexibility Act (RFA) to require Federal effect of the critical habitat designation $1,300 to $380,000 annually in agencies to provide a statement of the above and beyond those regulatory and administrative costs of consultation over factual basis for certifying that a rule economic impacts associated with 10 years (the low value represents the will not have a significant economic listing. The categories of potential costs lowest per unit estimate of costs impact on a substantial number of small considered in the analysis included the attributable solely to critical habitat entities. SBREFA also amended the RFA costs associated with (1) conducting designation and the high value to require a certification statement. We section 7 consultations associated with represents the highest per unit estimates are hereby certifying that this rule the listing or with the critical habitat, of costs attributable co-extensively with designating critical habitat for the Gulf including incremental consultations, listing). Total co-extensive sturgeon will not have a significant reinitiated consultations, and technical administrative cost across all units over economic impact on a substantial assistance; (2) modifications to projects, 10 years range between $705,600 and number of small entities. The following activities, or land uses resulting from $2,348,600 per year. Project discussion explains our rationale for the section 7 consultations; (3) modification costs for this analysis this certification. uncertainty and perceived impacts on could not be attributed to any one unit, Small entities include small markets resulting from the designation given the nature of the projects. organizations, such as independent non- of critical habitat and (4) potential However, total co-extensive costs of profit organizations, small governmental offsetting beneficial costs associated project modifications across all units jurisdictions, including school boards with critical habitat. over 10 years are estimated to be and city and town governments that The majority of consultations $2,604,000 annually; if the approximate serve fewer than 50,000 residents, as resulting from the critical habitat one-to-one ratio of total administrative well as small businesses (13 CFR designation for Gulf sturgeon are likely costs to total project modification costs 121.201). Small businesses include to address dredging and sediment reflects the per unit ratio of these costs, manufacturing and mining concerns disposal activities to support navigation, then the highest upper-bound per unit with fewer than 500 employees, shoreline stabilization, water quality estimate of critical habitat designation wholesale trade entities with fewer than standards, military actions, road and would be approximately $700,000 per 100 employees, retail and service bridge construction, oil and gas leases in year over 10 years. Sixty-five percent of businesses with less than $5 million in Federal waters and permitting of oil and the total upper-bound costs estimated to annual sales, general and heavy gas pipelines. As described in the draft be attributable to critical habitat construction businesses with less than economic analysis, all areas included in designation are expected to consist of $27.5 million in annual business, the designated critical habitat are federal agency costs. special trade contractors doing less than occupied, with the fish also occurring in $11.5 million in annual business, and areas not included in the critical habitat Required Determinations agricultural businesses with annual designation. Regulatory Planning and Review sales less than $750,000. To determine Following the close of the comment if potential impacts to these small period on the draft economic analysis, As required by Executive Order entities are significant, we consider the a final revision was completed which 12866, we have provided a copy of the types of activities that might trigger incorporated public comments on the rule, which describes the need for this regulatory impacts under this rule as draft analysis. Based on comments, the action and how the designation meets well as the types of project cost of consultations was revised. that need, and the economic analysis, modifications that may result. In Subsequently, the revised economic which assesses the costs and benefits of general, the term ‘‘significant economic analysis concluded that the designation this critical habitat designation, to the impact’’ is meant to apply to a typical may result in approximately $3,310,000 Office of Management and Budget small business firm’s business to $4,953,000 per year in potential (OMB) for review. The OMB determined operations. economic impact due to the total effects that this rule may raise novel legal or To determine if the rule would affect of critical habitat, including those policy issues and found it to be a a substantial number of small entities, effects resulting co-extensively from significant rule. we consider the number of small 13404 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations entities affected within particular types costs calculated in earlier sections of when compared with the regulatory of economic activities (e.g., housing this report, including those impacts that action under consideration: development, grazing, oil and gas may be ‘‘attributable co- (1) Reductions in crude oil supply in production, timber harvesting, etc.). In extensively’’with the listing of the excess of 10,000 barrels per day; estimating the numbers of small entities species. This results in a conservative (2) Reductions in fuel production in potentially affected, we also consider estimate (i.e., more likely to overstate excess of 4,000 barrels per day; whether their activities have any impacts than understate them), because (3) Reductions in coal production in Federal involvement; some kinds of it utilizes the upper bound impact excess of 5 million tons per year; activities are unlikely to have any estimate from the earlier analysis. Using (4) Reductions in natural gas Federal involvement and so will not be this approach, the economic analysis production in excess of 25 million mcf; affected by critical habitat designation. estimated that fewer than 6 small (5) Reductions in electricity The vast majority of the designated entities per year, would experience production in excess of 1 billion critical habitat for the Gulf sturgeon, significant economic impacts. We do kilowatts per year or in excess of 500 with few exceptions, is public land not believe this constitutes a substantial megawatts of installed capacity; involving river, stream, estuary, or number of small entities. Therefore, the (6) Increases in energy use required by marine habitat. Activities with Federal Services are certifying that the the regulatory action that exceed the involvement that may require designation of critical habitat for the thresholds above; (7) Increases in the cost of energy consultation regarding Gulf sturgeon Gulf sturgeon will not have a significant and its critical habitat include: activities production in excess of one percent; economic impact on a substantial (8) Increases in the cost of energy regulated under the Clean Water Act, number of small entities. Accordingly, a the Rivers and Harbors Act of 1899, distribution in excess of one percent; or regulatory flexibility analysis is not (9) Other similarly adverse outcomes. and/or various Coast Guard authorities. required. Small entity economic activities that There is one hydropower project may require Federal authorization or Small Business Regulatory Enforcement located upstream of critical habitat Unit permits include energy-related activities Fairness Act (5 U.S.C. 804(2)) 6. Accordingly, we assessed the such as pipelines, harbors, and potential for a significant effect to OMB’s Office of Information and energy supply, distribution, or use as platforms; residential development Regulatory Affairs has determined that including docks, piers, bridges, and relevant to this analysis in the final this rule is not a major rule under 5 addendum to the economic analysis, shoreline protection; boating-related U.S.C. 804(2), the Small Business projects of small communities; private reductions in electricity production in Regulatory Enforcement Fairness Act. In port operation including maintenance excess of 1 billion kilowatts per year or the draft economic analysis and the dredging and docks; small water supply in excess of 500 megawatts of installed final economic analysis, we determined or hydropower projects; and high speed capacity. that designation of critical habitat marine events. The Gulf region derives a very small As required under section 4(b)(2) of would not cause (a) any annual effect on portion of its overall power supply from the Act, we conducted an analysis of the the economy of $100 million or more, hydropower. Electricity supply and potential economic impacts of this (b) any increases in costs or prices for capacity data are collected and reported critical habitat designation. In the draft consumers, individual industries, by the North American Reliability analysis, we found that the future Federal, State, or local government Council (NERC). Of its ten regional section 7 consultations resulting from agencies, or geographic regions, or (c) councils, the Southeastern Electrical the listing of the Gulf sturgeon and the any significant adverse effects on Reliability Council (SERC) is the most proposed designation of critical habitat competition, employment, investment, contiguous with areas potentially could potentially impose total economic productivity, innovation, or the ability affected by critical habitat for the Gulf costs for consultations and of U.S.-based enterprises to compete sturgeon. The geographic area covered modifications to projects to range with foreign-based enterprises. Refer to by the Southern section of SERC between approximately $43.4 million to the final economic analysis (Industrial includes most of Alabama and Georgia, $57.2 million over the next 10-year Economics, Inc., 2003) for a complete southeastern Mississippi, and the period. Public comment on the draft discussion of the effects of this . Another section of economic analysis led to a revision of determination. SERC, Entergy, covers southwestern third party cost estimates that would Executive Order 13211 Mississippi, the Gulf coast Louisiana, result from section 7 consultations. The and portions of other States. Peninsular changes in cost estimates are discussed On May 18, 2001, the President issued Florida is not covered by SERC, but by and reflected in the revised final Executive Order 13211, which applies the Florida Reliability Coordinating Economic Analysis of Critical Habitat to ‘‘Actions Concerning Regulations Council (FRCC). Peak summer demand Designation for the Gulf Sturgeon That Significantly Affect Energy Supply, reached 43,736 megawatts for the (Industrial Economics, Inc. 2003), where Distribution, or Use.’’ In order to ensure Southern region and 25,747 megawatts we found that the future section 7 that Federal agencies ‘‘appropriately for the Entergy region in 2001. consultations resulting from the listing weigh and consider the effects of the Only one dam located upstream and of the Gulf sturgeon and the proposed Federal government’s regulations on the adjacent to the critical habitat Unit 6 critical habitat could potentially impose supply, distribution, and use of energy,’’ supplies hydropower. Located near the total economic costs for consultations the President has directed agencies to Florida-Georgia border in and modifications to projects in the prepare and submit to the OMB’s Office Chattahoochee, Florida, the Jim range of between $33.1 million to $49.5 of Information and Regulatory Affairs a Woodruff Dam is one of 23 hydropower million over the next 10-year period. ‘‘Statement of Energy Effects’’ for their sites operated by the USACE that In considering whether this critical ‘‘significant energy actions.’’ The OMB generate power. The electric power and habitat designation would have a has provided guidance for energy generated at significant economic impact on a implementing this Executive Order that is marketed by the Federal Southeastern substantial number of small entities, we outlines nine outcomes that may Power Administration for the wholesale examined the total estimated section 7 constitute ‘‘a significant adverse effect’’ energy market. Of the total installed Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13405 capacity of 3,092 megawatts, the Jim (b) For the reasons described in the case-by-case section 7 consultations to Woodruff Dam represented 30 economic analysis and this final rule, occur. megawatts, or less than one percent of this rule will not produce a Federal Civil Justice Reform Southeastern Power Administration mandate on State, local, or tribal market capacity during fiscal year 1999. governments of $100 million or greater In accordance with Executive Order In terms of actual volume marketed, the in any year. The designation of critical 12988, the Office of the Solicitor of the facility provided 205 gigawatt hours habitat imposes no obligations on State Department of the Interior has during fiscal year 1999, or 3.6 percent or local governments. Therefore, it is not determined that the rule does not of the Southeastern Power a ‘‘significant regulatory action’’’ under unduly burden the judicial system and Administration total. Based on data the Unfunded Mandates Reform Act. meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are from 1995, USACE estimated total Takings electricity capacity in the Apalachicola- proposing to designate critical habitat in Chattahoochee-Flint (ACF) Basin to be In accordance with Executive Order accordance with the provisions of the 6,657 megawatts. Of this total, 652 12630 (‘‘Government Actions and Endangered Species Act. The rule uses megawatts represent hydropower Interference with Constitutionally standard property descriptions and capacity. Compared to 2001 Southern Protected Private Property Rights’’), this identifies the primary constituent region peak summer demand, rule does not have significant takings elements within the designated areas to hydropower units located in the ACF implications. A takings implication assist the public in understanding the Basin contribute a small percentage of assessment is not required. As discussed habitat needs that are essential for the total regional electricity demand. above, the designation of critical habitat conservation of the Gulf sturgeon. We In 2001, Florida had a summer peak affects only Federal agency actions. have made every effort to ensure that demand of 38,285 megawatts out of a Since the critical habitat includes only the final determination contains no aquatic areas that are generally held in total summer peak capacity of 42,609 drafting errors, provides clear standards, public trust, we believe that little or no megawatts. Coal, natural gas, oil, and simplifies procedures, reduces burdens, private property is included in the nuclear sources fuel most of the State’s and is clearly written, such that the risk designation. Based on current public energy needs. Electricity derived from of litigation is minimized. knowledge of the species protection and hydropower from the Jim Woodruff Dam the prohibition against take of the Paperwork Reduction Act of 1995 (44 can account for only a small fraction of species both within and outside of the U.S.C. 3501 et seq.) Florida’s statewide capacity. designated areas, we do not anticipate This rule does not contain new or The maximum installed capacity for that property values will be affected by revised information collection for which Jim Woodruff Dam is 30 MW (30,000 the critical habitat designation. Office of Management and Budget KW). Therefore, even when viewed in Additionally, critical habitat approval is required under the the context of a worst-case scenario, in designation does not preclude Paperwork Reduction Act. Information which implementation of section 7 of development of habitat conservation collections associated with permits the Act results in significant operational plans and issuance of incidental take under the Act are covered by an existing changes, however unlikely, to this permits. OMB approval, and are assigned hydropower project, the total capacity is clearance No. 1018–0094, with an Federalism 30 MW (30,000 KW) of hydroelectricity, expiration date of July 31, 2004. so the impact on these hydropower In accordance with Executive Order Detailed information for Endangered facilities could not exceed the 500 MW 13132, this rule does not have Species Act documentation appears at (500,000 KW) threshold. significant Federalism effects. A 50 CFR 17. An agency may not conduct Therefore, even in the worst case Federalism assessment is not required. or sponsor, and a person is not required scenario, implementation of section 7 In keeping with Department of the to respond to, a collection of for the Gulf sturgeon will not result in Interior and Department of Commerce information unless it displays a a ‘‘reduction in electricity production in policies, we requested information from, currently valid OMB control number. excess of 500 megawatts of installed and coordinated development of both capacity’’ or an ‘‘increase in the cost of the listing and the proposal to designate National Environmental Policy Act energy production in excess of one critical habitat with, appropriate State The FWS has determined that it does percent.’’ Consequently, this rule will resource agencies in Louisiana, not need to prepare an Environmental not have a ‘‘significant adverse effect’’ Mississippi, Alabama, and Florida. The Assessment or an Environmental Impact on the supply, distribution, or use of designation of critical habitat for the Statement as defined by the National energy, and no ‘‘Statement of Energy Gulf sturgeon imposes no restrictions in Environmental Policy Act of 1969 in Effects’’ is required. addition to those currently in place, connection with regulations adopted and, therefore, has little additional Unfunded Mandates Reform Act (2 under section 4(a) of the Act. The FWS impact on State and local governments U.S.C. 1501 et seq.) published a notice outlining its reasons and their activities. The designation for this determination in the Federal In accordance with the Unfunded may have some benefit to these Register on October 25, 1983 (48 FR Mandates Reform Act (2 U.S.C. 1501 et governments in that the areas essential 49244). seq.): to the conservation of the species are The proposed rule stated that NMFS (a) This rule will not ‘‘significantly or more clearly defined, and the primary had determined that this action is uniquely’’ affect small governments. A constituent elements of the habitat categorically excluded from NEPA Small Government Agency Plan is not necessary to the conservation of the requirements. However, NMFS had not required. Small governments will be species are specifically identified. While at that time finalized its NEPA analysis affected only to the extent that Federal this definition and identification does for this rule. In response to comments agencies funding, permitting, or not alter where and what federally received on the proposed rule (see authorizing other activities must ensure sponsored activities may occur, it may comment 16), and based on additional that their actions will not adversely assist these local governments in long- research and deliberation, NMFS has affect the critical habitat. range planning, rather than waiting for concluded that the FWS position is 13406 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations correct, and that NEPA does not apply References Cited Regulation Promulgation to designation of critical habitat under the Act. A list of references is available upon For the reasons outlined in the request (see ADDRESSES.) preamble, we amend part 17, subchapter Government-to-Government B of chapter I, and part 226, subchapter Relationship with Tribes Authors C of chapter II, title 50 of the Code of Federal Regulations, as follows: In accordance with the President’s The primary authors of this document memorandum of April 29, 1994, are Patty Kelly, FWS, (850/769–0552, PART 17—[AMENDED] ‘‘Government-to-Government Relations extension 228); and Stephania Bolden with Native American Tribal and Jennifer Lee, NMFS, (727/570– 1. The authority citation for part 17 Governments’’ (59 FR 22951), Executive 5312) (see ADDRESSES section). continues to read as follows: Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Order 13175, and the Department of List of Subjects Interior’s manual at 512 DM 2, we 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– readily acknowledge our responsibility 50 CFR Part 17 625, 100 Stat. 3500, unless otherwise noted. to communicate meaningfully with 2. In §17.11(h), revise the entry for the recognized Federal Tribes on a Endangered and threatened species, Exports, Imports, Reporting and ‘‘Sturgeon, Gulf’’ under ‘‘FISHES’’ in the government-to-government basis. We List of Endangered and Threatened recordkeeping requirements, have determined that there are no tribal Wildlife to read as follows: lands essential for the conservation of Transportation. § 17.11 Endangered and threatened the Gulf sturgeon. Therefore, 50 CFR Part 226 designation of critical habitat for the wildlife. Gulf sturgeon has not been designated Endangered and threatened species. * * * * * on Tribal lands. (h) * * *

Species Vertebrate popu- Historic Range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* FISHES:

******* Sturgeon, Gulf ...... Acipenser U.S.A. (AL, FL, GA, Entire ...... T 444 17.95(e), 17.44(v) oxyrinchus LA, MS). 226.214 (=oxyrhynchus) desotoi.

*******

3. Amend § 17.95(e) by adding critical (ii) Riverine spawning sites with (v) Water quality, including habitat for the Gulf sturgeon (Acipenser substrates suitable for egg deposition temperature, salinity, pH, hardness, oxyrinchus desotoi), in the same and development, such as limestone turbidity, oxygen content, and other alphabetical order as the species occurs outcrops and cut limestone banks, chemical characteristics, necessary for in § 17.11(h) to read as follows: bedrock, large gravel or cobble beds, normal behavior, growth, and viability marl, soapstone or hard clay; of all life stages; § 17.95 Critical habitat—fish and wildlife. (iii) Riverine aggregation areas, also (vi) Sediment quality, including * * * * * referred to as resting, holding, and texture and other chemical (e) Fishes. * * * staging areas, used by adult, subadult, characteristics, necessary for normal Gulf Sturgeon (Acipenser oxyrinchus and/or juveniles, generally, but not behavior, growth, and viability of all life desotoi) always, located in holes below normal stages; and (1) Critical habitat units are depicted riverbed depths, believed necessary for (vii) Safe and unobstructed migratory for Louisiana, Mississippi, Alabama, minimizing energy expenditures during pathways necessary for passage within and Florida on the maps below. fresh water residency and possibly for and between riverine, estuarine, and (2) The primary constituent elements osmoregulatory functions; marine habitats (e.g. a river essential for the conservation of Gulf (iv) A flow regime (i.e,. the unobstructed by any permanent sturgeon are those habitat components magnitude, frequency, duration, structure, or a dammed river that still that support feeding, resting, and seasonality, and rate-of-change of fresh allows for passage). sheltering, reproduction, migration, and water discharge over time) necessary for (3) Gulf sturgeon is under the joint physical features necessary for normal behavior, growth, and survival jurisdiction of the U.S. Fish and maintaining the natural processes that of all life stages in the riverine Wildlife Service (FWS) and National support these habitat components. The environment, including migration, Marine Fisheries Service (NMFS). The primary constituent elements include: breeding site selection, courtship, egg FWS will maintain primary (i) Abundant prey items within fertilization, resting, and staging; and responsibility for recovery actions and riverine habitats for larval and juvenile necessary for maintaining spawning NMFS will assist in and continue to life stages, and within estuarine and sites in suitable condition for egg fund recovery actions pertaining to marine habitats and substrates for attachment, egg sheltering, resting, and estuarine and marine habitats. In juvenile, subadult, and adult life stages; larvae staging; riverine units, the FWS will be Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13407 responsible for all consultations own intra-agency consultations as discharges at its mouth joining Lake regarding Gulf sturgeon and critical necessary. Borgne, Little Lake, or The Rigolets in habitat. In estuarine units, we will (4) The textual unit descriptions Hancock County, Mississippi, and St. divide responsibility based on the below are the definitive source for Tammany Parish, Louisiana. It includes action agency involved. The FWS will determining the critical habitat the main stems of the East Pearl River, consult with the Department of boundaries. General location maps by West Pearl River, West Middle River, Transportation, the Environmental unit are provided at the end of each unit Holmes Bayou, Wilson Slough, Protection Agency, the U.S. Coast description and are provided for general downstream to where these main stem Guard, and the Federal Emergency guidance purposes only, and not as a river drainages discharge at the mouths Management Agency. NMFS will definitive source for determining critical of Lake Borgne, Little Lake, or The consult with the Department of Defense, habitat boundaries. Rigolets. Unit 1 also includes the Bogue U.S. Army Corps of Engineers, Minerals (5) Unit 1: Pearl River System in St. Chitto River main stem, a tributary of Management Service and any other Tammany and Washington Parishes in the Pearl River, from Mississippi State Federal agencies not mentioned here Louisiana and Walthall, Hancock, Pearl Highway 570, Pike County, Mississippi, explicitly. In marine units, NMFS will River, Marion, Lawrence, Simpson, downstream to its confluence with the be responsible for all consultations Copiah, Hinds, Rankin, and Pike West Pearl River, St. Tammany Parish, regarding Gulf sturgeon and critical Counties in Mississippi. Louisiana. The lateral extent of Unit 1 habitat. Any Federal projects that (i) Unit 1 includes the Pearl River is the ordinary high water line on each extend into the jurisdiction of both the main stem from the spillway of the Ross bank of the associated rivers and Services will be consulted on by the Barnett Dam, Hinds and Rankin shorelines. FWS with internal coordination with Counties, Mississippi, downstream to (ii) Maps of Unit 1 follow: NMFS. Each agency will conduct its where the main stem river drainage BILLING CODE 3510–22–P 13408 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13409 13410 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C main stem beginning from Mississippi main stem of the Pascagoula River from (6) Unit 2: Pascagoula River System in State Highway 588, Jones County, its confluence with the Leaf and Forrest, Perry, Greene, George, Jackson, Mississippi, downstream to its Chickasawhay Rivers, George County, Clarke, Jones, and Wayne Counties, confluence with the Chickasawhay Mississippi, to the discharge of the East Mississippi. River, George County, Mississippi is and West Pascagoula Rivers into (i) Unit 2 includes all of the included. The main stem of the Pascagoula Bay, Jackson County, Pascagoula River main stem and its Chickasawhay River from the mouth of Mississippi, is included. The lateral distributaries, portions of the Bouie, Oaky Creek, Clarke County, Mississippi, extent of Unit 2 is the ordinary high Leaf, and Chickasawhay tributaries, and downstream to its confluence with the water line on each bank of the all of the Big Black Creek tributary. It Leaf River, George County, Mississippi associated rivers and shorelines. includes the Bouie River main stem is included. Unit 2 also includes Big beginning on the southern-most road Black Creek main stem from its (ii) Major shipping channels in this crossing of Interstate 59, Forrest County, confluence with Black and Red Creeks, unit are excluded under section 4(b)(2) Mississippi, downstream to its Jackson County, Mississippi, to its of the Act. confluence with the Leaf River, Forrest confluence with the Pascagoula River, (iii) Maps of Unit 2 follow: County, Mississippi. The Leaf River Jackson County, Mississippi. All of the BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13411 13412 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13413 13414 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13415 13416 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

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(7) Unit 3: Escambia River System in Escambia and Santa Rosa Counties, Conecuh and Escambia Counties, Santa Rosa and Escambia Counties, Florida. It includes the entire main stem Alabama, downstream to its confluence Florida and Escambia, Conecuh, and of the Escambia River downstream to its with the Conecuh River, Escambia Covington Counties, Alabama. discharge into Escambia Bay and Macky County, Alabama, is also included. The (i) Unit 3 includes the Conecuh River Bay, Escambia and Santa Rosa Counties, lateral extent of Unit 3 is the ordinary main stem beginning just downstream of Florida. All of the distributaries of the high water line on each bank of the the spillway of Point A Dam, Covington Escambia River including White River, associated lakes, rivers, and shorelines. County, Alabama, downstream to the Little White River, Simpson River, and Florida State line, where its name Dead River, Santa Rosa County, Florida (ii) Maps of Unit 3 follow: changes to the Escambia River, are included. The Sepulga River main BILLING CODE 3510–22–P Escambia County, Alabama, and stem from Alabama County Road 42, 13418 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13419 13420 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C Florida. All Yellow River distributaries downstream to its discharge into (8) Unit 4: Yellow River System in (including Weaver River and Skim Lake) Blackwater Bay is included. Wright Santa Rosa and Okaloosa Counties, discharging into Blackwater Bay are Basin and Cooper Basin, Santa Rosa Florida and Covington County, included. The Shoal River main stem, a County, on the Blackwater River are Alabama. Yellow River tributary, from Florida included. The lateral extent of Unit 4 is (i) Unit 4 includes the Yellow River Highway 85, Okaloosa County, Florida, the ordinary high water line on each main stem from Alabama State Highway to its confluence with the Yellow River, bank of the associated lakes, rivers, and 55, Covington County, Alabama, is included. The Blackwater River from shorelines. downstream to its discharge at its confluence with Big Coldwater (ii) Maps of Unit 4 follow: Blackwater Bay, Santa Rosa County, Creek, Santa Rosa County, Florida, BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13421 13422 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13423 13424 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13425

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(9) Unit 5: Choctawhatchee River distributaries discharging into stem, a Choctawhatchee River tributary, System in Holmes, Washington, and Choctawhatchee Bay known as Mitchell from the Elba Dam, Coffee County, Walton Counties, Florida and Dale, River, Indian River, Cypress River, and Alabama, to its confluence with the Coffee, Geneva, and Houston Counties, Bells Leg are included. The Boynton Choctawhatchee River, Geneva County, Alabama. Cutoff, Washington County, Florida, Alabama, is included. The lateral extent (i) Unit 5 includes the which joins the Choctawhatchee River of Unit 5 is the ordinary high water line Choctawhatchee River main stem from main stem, and Holmes Creek, on each bank of the associated rivers its confluence with the west and east Washington County, Florida, are and shorelines. fork of the Choctawhatchee River, Dale included. The section of Holmes Creek County, Alabama, downstream to its from Boynton Cutoff to the mouth of (ii) Maps of Unit 5 follow: discharge at Choctawhatchee Bay, Holmes Creek, Washington County, BILLING CODE 3510–22–P Walton County, Florida. The Florida, is included. The Pea River main Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13427 13428 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13429 13430 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

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(10) Unit 6: Apalachicola River Apalachicola Bay, Franklin County, Franklin and Gulf Counties, Florida, a System in Franklin, Gulf, Liberty, Florida. All Apalachicola River tributary of the Apalachicola River, is Calhoun, Jackson, and Gadsen Counties, distributaries, including the East River, included. The lateral extent of Unit 6 is Florida. Little St. Marks River, St. Marks River, the ordinary high water line on each (i) Unit 6 includes the Apalachicola Franklin County, Florida, to their bank of the associated rivers and River mainstem, beginning from the Jim discharge into East Bay and/or shorelines. Woodruff Lock and Dam, Gadsden and Apalachicola Bay are included. The (ii) Maps of Unit 6 follow: Jackson Counties, Florida, downstream entire main stem of the Brothers River, to its discharge at East Bay or BILLING CODE 3510–22–P 13432 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13433

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(11) Unit 7: Suwannee River System includes all the Suwannee River Hamilton Counties, Florida, to its in Hamilton, Suwannee, Madison, distributaries, including the East Pass, confluence with the Suwannee River is Lafayette, Gilchrist, Levy, Dixie, and West Pass, Wadley Pass, and Alligator included. The lateral extent of Unit 7 is Columbia Counties, Florida. Pass, Dixie and Levy Counties, Florida, the ordinary high water line on each (i) Unit 7 includes the Suwannee to their discharge into the Suwannee bank of the associated rivers and River main stem, beginning from its Sound or the Gulf of Mexico. The shorelines. confluence with Long Branch Creek, Withlacoochee River main stem from (ii) Maps of Unit 7 follow: Hamilton County, Florida, downstream Florida State Road 6, Madison and to the mouth of the Suwannee River. It BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13435 13436 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13437 13438 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C Pass. The northern boundary of the (e)) to the eastern boundary. Between (12) Unit 8: Lake Pontchartrain, Lake Mississippi Sound is the shorelines of Cat Island and Ship Island there is no St. Catherine, The Rigolets, Little Lake, the mainland between Heron Bay Point, 72 COLREGS line. We therefore, have Lake Borgne, and Mississippi Sound in Mississippi and Point aux Pins, defined that section of the southern Jefferson, Orleans, St. Tammany, and St. Alabama. Critical habitat excludes St. boundary as 1 nm (1.9 km) offshore of Bernard Parish, Louisiana, Hancock, Louis Bay, north of the railroad bridge a straight line drawn from the southern Jackson, and Harrison Counties in across its mouth; Biloxi Bay, north of tip of Cat Island to the western tip of Mississippi, and in Mobile County, the U.S. Highway 90 bridge; and Back Ship Island. The eastern boundary is the Alabama. Bay of Biloxi. The southern boundary line of longitude 88°18.8′W from its (i) Unit 8 encompasses Lake follows along the broken shoreline of intersection with the shore (Point aux Pontchartrain east of the Lake Lake Borgne created by low swampy Pins) to its intersection with the Pontchartrain Causeway, all of Little islands from Malheureux Point to Isle southern boundary. The lateral extent of Lake, The Rigolets, Lake St. Catherine, au Pitre. From the northeast point of Isle Unit 8 is the mean (average) high water Lake Borgne, including Heron Bay, and au Pitre, the boundary continues in a (MHW) line on each shoreline of the the Mississippi Sound. Critical habitat straight north-northeast line to the point included water bodies or the entrance to follows the shorelines around the 1 nautical mile (nm) (1.9 kilometers rivers, bayous, and creeks. perimeters of each included lake. The (km)) seaward of the western most (ii) Major shipping channels in this Mississippi Sound includes adjacent extremity of Cat Island (30°13′N, unit, as identified on standard open bays including Pascagoula Bay, 89°10′W). The southern boundary navigation charts and marked by buoys, Point aux Chenes Bay, Grand Bay, continues 1 nm (1.9 km) offshore of the are excluded under section 4(b)(2) of the Sandy Bay, and barrier island passes, barrier islands and offshore of the 72 Act. including Ship Island Pass, Dog Keys COLREGS lines at barrier island passes (iii) Maps of Unit 8 follow: Pass, Horn Island Pass, and Petit Bois (defined at 33 CFR 80.815 (c), (d) and BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13439 13440 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13441 13442 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C bayous, creeks, and rivers are excluded Unit 9 is the MHW line on each (13) Unit 9: Pensacola Bay System in at their mouths. The western boundary included bay’s shoreline. Escambia and Santa Rosa Counties, is the Florida State Highway 292 Bridge (ii) Major shipping channels in this Florida. crossing Big Lagoon to Perdido Key. The unit, as identified on standard (i) Unit 9 includes Pensacola Bay and southern boundary is the 72 COLREGS navigation charts and marked by buoys, its adjacent main bays and coves. These line between Perdido Key and Santa are excluded under section 4(b)(2) of the include Big Lagoon, Escambia Bay, East Rosa Island (defined at 33 CFR 80.810 Act. Bay, Blackwater Bay, Bayou Grande, (g)). The eastern boundary is the Florida Macky Bay, Saultsmar Cove, Bass Hole State Highway 399 Bridge at Gulf (iii) A Map of Unit 9 follows: Cove, and Catfish Basin. All other bays, Breeze, Florida. The lateral extent of BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13443

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(14) Unit 10: Santa Rosa Sound in Florida State Highway 399 bridge in Unit 10 are formed by the shorelines to Escambia, Santa Rosa, and Okaloosa Gulf Breeze, Florida. The eastern the MHW line or by the entrance to Counties, Florida. boundary is the U.S. Highway 98 bridge rivers, bayous, and creeks. (i) Unit 10 includes the Santa Rosa in Fort Walton Beach, Florida. The (ii) A Map of Unit 10 follows: Sound, bounded on the west by the northern and southern boundaries of BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13445

BILLING CODE 3510–22–C 13446 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

(15) Unit 11: Florida Nearshore Gulf west of Pensacola Pass) from its boundary is the line of longitude of Mexico Unit in Escambia, Santa Rosa, intersection with the shore to its 85°17.0′W from its intersection with the Okaloosa, Walton, Bay, and Gulf intersection with the southern shore (near Money Bayou between Cape Counties in Florida. boundary. The northern boundary is the San Blas and Indian Peninsula) to its (i) Unit 11 includes a portion of the MHW of the mainland shoreline and the intersection with the southern Gulf of Mexico as defined by the 72 COLREGS lines at passes as defined boundary. following boundaries. The western at 30 CFR 80.810 (a–g). The southern boundary is the line of longitude boundary is 1 nm (1.9 km) offshore of (ii) A Map of Unit 11 follows: 87°20.0′W (approximately 1 nm (1.9 km) the northern boundary. The eastern BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13447

BILLING CODE 3510–22–C 13448 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

(16) Unit 12: Choctawhatchee Bay in are excluded at their mouths/entrances. (Destin) Pass as defined at 33 CFR Okaloosa and Walton Counties, Florida. The western boundary is the U.S. 80.810 (f). The lateral extent of Unit 12 (i) Unit 12 includes the main body of Highway 98 bridge at Fort Walton is the MHW line on each shoreline of Choctawhatchee Bay, Hogtown Bayou, Beach, Florida. The southern boundary the included water bodies. Jolly Bay, Bunker Cove, and Grassy is the 72 COLREGS line across East (ii) A Map of Unit 12 follows: Cove. All other bayous, creeks, rivers Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13449

BILLING CODE 3510–22–P (17) Unit 13: Apalachicola Bay in Gulf (i) Unit 13 includes the main body of and Franklin County, Florida. Apalachicola Bay and its adjacent 13450 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations sounds, bays, and the nearshore waters boards on the bay side. The southern eastern boundary is formed by a straight of the Gulf of Mexico. These consist of boundary includes water extending into line drawn from the shoreline of Lanark St. Vincent Sound, including Indian the Gulf of Mexico 1 nm (1.9 km) from Village at 29°53.1′N, 84°35.0′W to a Lagoon; Apalachicola Bay including the MHW line of the barrier islands and point that is 1 nm (1.9 km) offshore from Horseshoe Cove and All Tides Cove; from 72 COLREGS lines between the the northeastern extremity of Dog Island East Bay including Little Bay and Big barrier islands (defined at 33 CFR at 29°49.6′N, 84°33.2′W. The lateral Bay; and St George Sound, including 80.805 (e)–(h)). The western boundary is extent of Unit 13 is the MHW line on Rattlesnake Cove and East Cove. Barrier the line of longitude 85°17.0′W from its each shoreline of the included water Island passes (Indian Pass, West Pass, intersection with the shore (near Money bodies or the entrance of excluded and East Pass) are also included. Sike’s Bayou between Cape San Blas and rivers, bayous, and creeks. cut is excluded from the lighted buoys Indian Peninsula) to its intersection (ii) A Map of Unit 13 follows: on the Gulf of Mexico side to the day with the southern boundary. The BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13451

BILLING CODE 3510–22–C 13452 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

(18) Unit 14: Suwannee Sound in northern tip of Big Pine Island (at 29°04′N. The lateral extent of Unit 14 is Dixie and Levy Counties, Florida. approximately 29°23′N, 83°12′W) to the the MHW line along the shorelines and (i) Unit 14 includes Suwannee Sound Federal-State boundary at 29°17′N, the mouths of the Suwannee River (East and a portion of adjacent Gulf of Mexico 83°21′W. The southern boundary is and West Pass), its distributaries, and waters extending 9 nm from shore (16.7 formed by a straight line from the other rivers, creeks, or water bodies. km) out to the State territorial water southern tip of Richards Island (at (ii) A Map of Unit 14 follows: boundary. Its northern boundary is approximately 83°04′W, 29°11′N) to the formed by a straight line from the Federal-State boundary at 83°15′W, BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13453

(19)(i) The river reaches within Units ordinary high water line. As defined in 1 to 7 as critical habitat lie within the 33 CFR 32.911, the ordinary high water 13454 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations line on non-tidal rivers is the line on the 2. Section 226.214 is added to read as necessary for normal behavior, growth, shore established by the fluctuations of follows: and survival of all life stages in the water and indicated by physical riverine environment, including characteristics such as a clear, natural § 226.214 Critical habitat for Gulf sturgeon. migration, breeding site selection, line impressed on the bank; shelving; Gulf sturgeon is under the joint courtship, egg fertilization, resting, and changes in the character of soil; jurisdiction of the U.S. Fish and staging; and necessary for maintaining destruction of terrestrial vegetation; the Wildlife Service (FWS) and National spawning sites in suitable condition for presence of litter and debris; or other Marine Fisheries Service (NMFS). The egg attachment, eggs sheltering, resting, appropriate means that consider the FWS will maintain primary and larvae staging; water quality, characteristics of the surrounding areas. responsibility for recovery actions and including temperature, salinity, pH, (ii) The downstream limit of the NMFS will assist in and continue to hardness, turbidity, oxygen content, and riverine units is the mouth of each river. fund recovery actions pertaining to other chemical characteristics, The mouth is defined as rkm 0 (rmi 0). estuarine and marine habitats. In necessary for normal behavior, growth, Although the interface of fresh and riverine units, the FWS will be and viability of all life stages; sediment saltwater, referred to as the saltwater responsible for all consultations quality, including texture and other wedge, occurs within the lower-most regarding Gulf sturgeon and critical chemical characteristics, necessary for reach of a river, for ease in delineating habitat. In estuarine units, we will normal behavior, growth, and viability divide responsibility based on the critical habitat units, we are defining the of all life stages; and safe and action agency involved. The FWS will boundary between the riverine and unobstructed migratory pathways consult with the Department of estuarine units as rkm 0 (rmi 0). necessary for passage within and Transportation, the Environmental (iii) Regulatory jurisdiction in coastal between riverine, estuarine, and marine Protection Agency, the U.S. Coast areas extends to the line on the shore habitats (e.g. a river unobstructed by any Guard, and the Federal Emergency reached by the plane of the mean permanent structure, or a dammed river Management Agency. NMFS will (average) high water (MHW) (33 CFR that still allows for passage). consult with the Department of Defense, 329.12(a)(2)). All bays and estuaries The river reaches within Units 1 to 7 U.S. Army Corps of Engineers, Minerals as critical habitat lie within the ordinary within Units 8 to 14 therefore, lie below Management Service and any other the MHW lines. Where precise high water line. As defined in 33 CFR Federal agencies not mentioned here 329.11, the ordinary high water line on determination of the actual location explicitly. In marine units, NMFS will becomes necessary, it must be non-tidal rivers is the line on the shore be responsible for all consultations established by the fluctuations of water established by survey with reference to regarding Gulf sturgeon and critical the available tidal datum, preferably and indicated by physical habitat. Any Federal projects that characteristics such as a clear, natural averaged over a period of 18.6 years. extend into the jurisdiction of both the Less precise methods, such as line impressed on the bank; shelving; Services will be consulted on by the changes in the character of soil; observation of the ‘‘apparent shoreline’’ FWS with internal coordination with which is determined by reference to destruction of terrestrial vegetation; the NMFS. Each agency will conduct its presence of litter and debris; or other physical markings, lines of vegetation, own intra-agency consultations as appropriate means that consider the may be used only where an estimate is necessary. characteristics of the surrounding areas. needed of the line reached by the mean The primary constituent elements The downstream limit of the riverine high water. essential for the conservation of Gulf units is the mouth of each river. The (iv) The term 72 COLREGS is defined sturgeon are those habitat components mouth is defined as rkm 0 (rmi 0). as demarcation lines which delineate that support feeding, resting, and Although the interface of fresh and those waters upon which mariners shall sheltering, reproduction, migration, and saltwater, referred to as the saltwater comply with the International physical features necessary for wedge, occurs within the lower-most Regulations for Preventing Collisions at maintaining the natural processes that reach of a river, for ease in delineating Sea, 1972 and those waters upon which support these habitat components. The critical habitat units, we are defining the mariners shall comply with the Inland primary constituent elements include: boundary between the riverine and Navigation Rules (33 CFR 80.01). The abundant prey items within riverine estuarine units as rkm 0 (rmi 0). waters inside of these lines are Inland habitats for larval and juvenile life Regulatory jurisdiction in coastal Rules waters and the waters outside the stages, and within estuarine and marine areas extends to the line on the shore lines are COLREGS waters. These lines habitats and substrates for juvenile, reached by the plane of the mean are defined in 33 CFR 80, and have been subadult, and adult life stages; riverine (average) high water (MHW) (33 CFR used for identification purposes to spawning sites with substrates suitable 329.12(a)(2)). All bays and estuaries delineate boundary lines of the for egg deposition and development, within Units 8 to 14, therefore, lie below estuarine and marine habitat Units 8, 9, such as limestone outcrops and cut the MHW lines. Where precise 11, and 12. limestone banks, bedrock, large gravel determination of the actual location (20) Critical habitat does not include or cobble beds, marl, soapstone or hard becomes necessary, it must be existing developed sites such as dams, clay; riverine aggregation areas, also established by survey with reference to piers, marinas, bridges, boat ramps, referred to as resting, holding, and the available tidal datum, preferably exposed oil and gas pipelines, oil rigs, staging areas, used by adult, subadult, averaged over a period of 18.6 years. and similar structures or designated and/or juveniles, generally, but not Less precise methods, such as public swimming areas. always, located in holes below normal observation of the ‘‘apparent shoreline’’ * * * * * riverbed depths, believed necessary for which is determined by reference to minimizing energy expenditures during physical markings, lines of vegetation, PART 226—[AMENDED] fresh water residency and possibly for may be used only where an estimate is osmoregulatory functions; a flow regime needed of the line reached by the mean 1. The authority citation for 50 CFR (i.e., the magnitude, frequency, high water. part 226 continues to read as follows: duration, seasonality, and rate-of-change The term 72 COLREGS is defined as Authority: 16 U.S.C. 1533. of fresh water discharge over time) demarcation lines which delineate those Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13455 waters upon which mariners shall Florida on the maps below. The textual Tammany Parish, Louisiana. It includes comply with the International unit descriptions below are definitive the main stems of the East Pearl River, Regulations for Preventing Collisions at sources for determining the critical West Pearl River, West Middle River, Sea, 1972 and those waters upon which habitat boundaries. General location Holmes Bayou, Wilson Slough, mariners shall comply with the Inland maps by unit are provided for general downstream to where these main stem Navigation Rules (33 CFR 80.01). The guidance purposes only, and not as a river drainages discharge at the mouths waters inside of these lines are Inland definitive source for determining critical of Lake Borgne, Little Lake, or The Rules waters and the waters outside the habitat boundaries. Rigolets. Unit 1 also includes the Bogue (a) Unit 1: Pearl River System in St. lines are COLREGS waters. These lines Chitto River main stem, a tributary of are defined in 33 CFR part 80, and have Tammany and Washington Parishes in the Pearl River, from Mississippi State been used for identification purposes to Louisiana and Walthall, Hancock, Pearl Highway 570, Pike County, Mississippi, delineate boundary lines of the River, Marion, Lawrence, Simpson, estuarine and marine habitat Units 8, 9, Copiah, Hinds, Rankin, and Pike downstream to its confluence with the 11, and 12. Counties in Mississippi. West Pearl River, St. Tammany Parish, Critical habitat does not include (1) Unit 1 includes the Pearl River Louisiana. The lateral extent of Unit 1 existing developed sites such as dams, main stem from the spillway of the Ross is the ordinary high water line on each piers, marinas, bridges, boat ramps, Barnett Dam, Hinds and Rankin bank of the associated rivers and exposed oil and gas pipelines, oil rigs, Counties, Mississippi, downstream to shorelines. and similar structures or designated where the main stem river drainage (2) Maps of Unit 1 follow: public swimming areas. discharges at its mouth joining Lake BILLING CODE 3510–22–P Critical habitat units are depicted for Borgne, Little Lake, or The Rigolets in Louisiana, Mississippi, Alabama and Hancock County, Mississippi, and St. 13456 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13457 13458 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C main stem beginning from Mississippi main stem of the Pascagoula River from (b) Unit 2: Pascagoula River System in State Highway 588, Jones County, its confluence with the Leaf and Forrest, Perry, Greene, George, Jackson, Mississippi, downstream to its Chickasawhay Rivers, George County, Clarke, Jones, and Wayne Counties, confluence with the Chickasawhay Mississippi, to the discharge of the East Mississippi. River, George County, Mississippi is and West Pascagoula Rivers into (1) Unit 2 includes all of the included. The main stem of the Pascagoula Bay, Jackson County, Pascagoula River main stem and its Chickasawhay River from the mouth of Mississippi, is included. The lateral distributaries, portions of the Bouie, Oaky Creek, Clarke County, Mississippi, extent of Unit 2 is the ordinary high Leaf, and Chickasawhay tributaries, and downstream to its confluence with the water line on each bank of the all of the Big Black Creek tributary. It Leaf River, George County, Mississippi associated rivers and shorelines. includes the Bouie River main stem is included. Unit 2 also includes Big beginning on the southern-most road Black Creek main stem from its (2) Major shipping channels in this crossing of Interstate 59, Forrest County, confluence with Black and Red Creeks, unit are excluded under section 4(b)(2) Mississippi, downstream to its Jackson County, Mississippi, to its of the Act. confluence with the Leaf River, Forrest confluence with the Pascagoula River, (3) Maps of Unit 2 follow: County, Mississippi. The Leaf River Jackson County, Mississippi. All of the BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13459 13460 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13461 13462 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13463 13464 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C Escambia County, Alabama, and stem from Alabama County Road 42, (c) Unit 3: Escambia River System in Escambia and Santa Rosa Counties, Conecuh and Escambia Counties, Santa Rosa and Escambia Counties, Florida. It includes the entire main stem Alabama, downstream to its confluence Florida and Escambia, Conecuh, and of the Escambia River downstream to its with the Conecuh River, Escambia Covington Counties, Alabama. discharge into Escambia Bay and Macky County, Alabama, is also included. The (1) Unit 3 includes the Conecuh River Bay, Escambia and Santa Rosa Counties, lateral extent of Unit 3 is the ordinary main stem beginning just downstream of Florida. All of the distributaries of the high water line on each bank of the the spillway of Point A Dam, Covington Escambia River including White River, associated lakes, rivers, and shorelines. County, Alabama, downstream to the Little White River, Simpson River, and Florida State line, where its name Dead River, Santa Rosa County, Florida (2) Maps of Unit 3 follow: changes to the Escambia River, are included. The Sepulga River main BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13465 13466 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13467

BILLING CODE 3510–22–C Florida. All Yellow River distributaries downstream to its discharge into (d) Unit 4: Yellow River System in (including Weaver River and Skim Lake) Blackwater Bay is included. Wright Santa Rosa and Okaloosa Counties, discharging into Blackwater Bay are Basin and Cooper Basin, Santa Rosa Florida and Covington County, included. The Shoal River main stem, a County, on the Blackwater River are Alabama. Yellow River tributary, from Florida included. The lateral extent of Unit 4 is (1) Unit 4 includes the Yellow River Highway 85, Okaloosa County, Florida, the ordinary high water line on each main stem from Alabama State Highway to its confluence with the Yellow River, bank of the associated lakes, rivers, and 55, Covington County, Alabama, is included. The Blackwater River from shorelines. downstream to its discharge at its confluence with Big Coldwater (2) Maps of Unit 4 follow: Blackwater Bay, Santa Rosa County, Creek, Santa Rosa County, Florida, BILLING CODE 3510–22–P 13468 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13469 13470 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13471 13472 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C Walton County, Florida. The Florida, is included. The Pea River main (e) Unit 5: Choctawhatchee River distributaries discharging into stem, a Choctawhatchee River tributary, System in Holmes, Washington, and Choctawhatchee Bay known as Mitchell from the Elba Dam, Coffee County, Walton Counties, Florida and Dale, River, Indian River, Cypress River, and Alabama, to its confluence with the Coffee, Geneva, and Houston Counties, Bells Leg are included. The Boynton Choctawhatchee River, Geneva County, Alabama. Cutoff, Washington County, Florida, Alabama, is included. The lateral extent (1) Unit 5 includes the which joins the Choctawhatchee River of Unit 5 is the ordinary high water line Choctawhatchee River main stem from main stem, and Holmes Creek, on each bank of the associated rivers its confluence with the west and east Washington County, Florida, are and shorelines. fork of the Choctawhatchee River, Dale included. The section of Holmes Creek County, Alabama, downstream to its from Boynton Cutoff to the mouth of (2) Maps of Unit 5 follow: discharge at Choctawhatchee Bay, Holmes Creek, Washington County, BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13473 13474 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13475 13476 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C Apalachicola Bay, Franklin County, Franklin and Gulf Counties, Florida, a (f) Unit 6: Apalachicola River System Florida. All Apalachicola River tributary of the Apalachicola River, is in Franklin, Gulf, Liberty, Calhoun, distributaries, including the East River, included. The lateral extent of Unit 6 is Jackson, and Gadsen Counties, Florida. the ordinary high water line on each (1) Unit 6 includes the Apalachicola Little St. Marks River, St. Marks River, River mainstem, beginning from the Jim Franklin County, Florida, to their bank of the associated rivers and Woodruff Lock and Dam, Gadsden and discharge into East Bay and/or shorelines. Jackson Counties, Florida, downstream Apalachicola Bay are included. The (2) Maps of Unit 6 follow: to its discharge at East Bay or entire main stem of the Brothers River, BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13477 13478 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C to the mouth of the Suwannee River. It Hamilton Counties, Florida, to its (g) Unit 7: Suwannee River System in includes all the Suwannee River confluence with the Suwannee River is Hamilton, Suwannee, Madison, distributaries, including the East Pass, included. The lateral extent of Unit 7 is Lafayette, Gilchrist, Levy, Dixie, and West Pass, Wadley Pass, and Alligator the ordinary high water line on each Columbia Counties, Florida. Pass, Dixie and Levy Counties, Florida, bank of the associated rivers and (1) Unit 7 includes the Suwannee to their discharge into the Suwannee shorelines. River main stem, beginning from its Sound or the Gulf of Mexico. The confluence with Long Branch Creek, Withlacoochee River main stem from (2) Maps of Unit 7 follow: Hamilton County, Florida, downstream Florida State Road 6, Madison and BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13479 13480 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13481 13482 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C Pass. The northern boundary of the Island and Ship Island there is no 72 (h) Unit 8: Lake Pontchartrain, Lake Mississippi Sound is the shorelines of COLREGS line. We therefore, have St. Catherine, The Rigolets, Little Lake, the mainland between Heron Bay Point, defined that section of the southern Lake Borgne, and Mississippi Sound in MS and Point aux Pins, AL. Designated boundary as 1 nm (1.9 km) offshore of Jefferson, Orleans, St. Tammany, and critical habitat excludes St. Louis Bay, a straight line drawn from the southern St. Bernard Parish, Louisiana, Hancock, north of the railroad bridge across its tip of Cat Island to the western tip of Jackson, and Harrison Counties in mouth; Biloxi Bay, north of the U.S. Ship Island. The eastern boundary is the Mississippi, and in Mobile County, Highway 90 bridge; and Back Bay of line of longitude 88°18.8″W from its Alabama. Biloxi. The southern boundary follows intersection with the shore (Point aux (1) Unit 8 encompasses Lake along the broken shoreline of Lake Pins) to its intersection with the Pontchartrain east of the Lake Borgne created by low swampy islands southern boundary. The lateral extent of Pontchartrain Causeway, all of Little from Malheureux Point to Isle au Pitre. Unit 8 is the MHW line on each Lake, The Rigolets, Lake St. Catherine, From the northeast point of Isle au Pitre, shoreline of the included water bodies Lake Borgne, including Heron Bay, and the boundary continues in a straight or the entrance to rivers, bayous, and the Mississippi Sound. Critical habitat north-northeast line to the point 1 nm creeks. follows the shorelines around the (1.9 km) seaward of the western most perimeters of each included lake. The extremity of Cat Island (30°13″N, (2) Major shipping channels in this Mississippi Sound includes adjacent 89°10″W). The southern boundary unit, as identified on standard open bays including Pascagoula Bay, continues 1 nm (1.9 km) offshore of the navigation charts and marked by buoys, Point aux Chenes Bay, Grand Bay, barrier islands and offshore of the 72 are excluded under section 4(b)(2) of the Sandy Bay, and barrier island passes, COLREGS lines at barrier island passes Act. including Ship Island Pass, Dog Keys (defined at 33 CFR 80.815 (c)), (d) and (3) Maps of Unit 8 follow: Pass, Horn Island Pass, and Petit Bois (e) to the eastern boundary. Between Cat BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13483 13484 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13485 13486 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C bayous, creeks, and rivers are excluded Unit 9 is the MHW line on each (i) Unit 9: Pensacola Bay System in at their mouths. The western boundary included bay’s shoreline. Escambia and Santa Rosa Counties, is the Florida State Highway 292 Bridge (2) Major shipping channels in this Florida. crossing Big Lagoon to Perdido Key. The unit, as identified on standard (1) Unit 9 includes Pensacola Bay and southern boundary is the 72 COLREGS navigation charts and marked by buoys, its adjacent main bays and coves. These line between Perdido Key and Santa are excluded under section 4(b)(2) of the include Big Lagoon, Escambia Bay, East Rosa Island (defined at 33 CFR Act. Bay, Blackwater Bay, Bayou Grande, 80.810(g)). The eastern boundary is the Macky Bay, Saultsmar Cove, Bass Hole Florida State Highway 399 Bridge at (3) A Map of Unit 9 follows: Cove, and Catfish Basin. All other bays, Gulf Breeze, FL. The lateral extent of BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13487

BILLING CODE 3510–22–C Florida State Highway 399 bridge in formed by the shorelines to the MHW (j) Unit 10: Santa Rosa Sound in Gulf Breeze, FL. The eastern boundary line or by the entrance to rivers, bayous, Escambia, Santa Rosa, and Okaloosa is the U.S. Highway 98 bridge in Fort and creeks. Counties, Florida. (1) Unit 10 includes the Santa Rosa Walton Beach, FL. The northern and (2) A Map of Unit 10 follows: southern boundaries of Unit 10 are Sound, bounded on the west by the BILLING CODE 3510–22–P 13488 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C (k) Unit 11: Florida Nearshore Gulf of Okaloosa, Walton, Bay, and Gulf Mexico Unit in Escambia, Santa Rosa, Counties, Florida. Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13489

(1) Unit 11 includes a portion of the boundary. The northern boundary is the shore (near Money Bayou between Cape Gulf of Mexico as defined by the MHW of the mainland shoreline and the San Blas and Indian Peninsula) to its following boundaries. The western 72 COLREGS lines at passes as defined intersection with the southern boundary is the line of longitude at 30 CFR 80.810 (a–g). The southern boundary. ° ′ 87 20.0 W (approximately 1 nm (1.9 km) boundary is 1 nm (1.9 km) offshore of (2) A Map of Unit 11 follows: west of Pensacola Pass) from its the northern boundary. The eastern intersection with the shore to its boundary is the line of longitude BILLING CODE 3510–22–P intersection with the southern 85°17.0′W from its intersection with the 13490 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C Cove. All other bayous, creeks, rivers Pass as defined at 33 CFR 80.810(f). The (l) Unit 12: Choctawhatchee Bay in are excluded at their mouths/entrances. lateral extent of Unit 12 is the MHW Okaloosa and Walton Counties, Florida. The western boundary is the U.S. line on each shoreline of the included (1) Unit 12 includes the main body of Highway 98 bridge at Fort Walton water bodies. Choctawhatchee Bay, Hogtown Bayou, Beach, FL. The southern boundary is the (2) A Map of Unit 12 follows: Jolly Bay, Bunker Cove, and Grassy 72 COLREGS line across East (Destin) BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13491

BILLING CODE 3510–22–C 13492 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

(m) Unit 13: Apalachicola Bay in Gulf cut is excluded from the lighted buoys with the southern boundary. The and Franklin County, Florida. on the Gulf of Mexico side to the day eastern boundary is formed by a straight (1) Unit 13 includes the main body of boards on the bay side. The southern line drawn from the shoreline of Lanark Apalachicola Bay and its adjacent boundary includes water extending into Village at 29°53.1′N, 84°35.0′W to a sounds, bays, and the nearshore waters the Gulf of Mexico 1 nm (1.9 km) from point that is 1 nm (1.9 km) offshore from of the Gulf of Mexico. These consist of the MHW line of the barrier islands and the northeastern extremity of Dog Island St. Vincent Sound, including Indian from 72 COLREGS lines between the at 29°49.6′N, 84°33.2′W. The lateral Lagoon; Apalachicola Bay including barrier islands (defined at 33 CFR extent of Unit 13 is the MHW line on Horseshoe Cove and All Tides Cove; 80.805 (e–h)). The western boundary is each shoreline of the included water East Bay including Little Bay and Big the line of longitude 85°17.0′W from its bodies or the entrance of excluded Bay; and St George Sound, including Rattlesnake Cove and East Cove. Barrier intersection with the shore (near Money rivers, bayous, and creeks. Island passes (Indian Pass, West Pass, Bayou between Cape San Blas and (2) A Map of Unit 13 follows: and East Pass) are also included. Sike’s Indian Peninsula) to its intersection BILLING CODE 3510–22–P Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 13493

BILLING CODE 3510–22–C northern tip of Big Pine Island (at the MHW line along the shorelines and (n) Unit 14: Suwannee Sound in Dixie approximately 29°23′N, 83°12′W) to the the mouths of the Suwannee River (East and Levy Counties, Florida. Federal-State boundary at 29°17′N, and West Pass), its distributaries, and (1) Unit 14 includes Suwannee Sound 83°21′W. The southern boundary is other rivers, creeks, or water bodies. and a portion of adjacent Gulf of Mexico formed by a straight line from the (2) A Map of Unit 14 follows: waters extending 9 nm from shore (16.7 southern tip of Richards Island (at BILLING CODE 3510–22–P km) out to the State territorial water approximately 83°04′W, 29°11′N) to the boundary. Its northern boundary is Federal-State boundary at 83°15′W, formed by a straight line from the 29°04′N. The lateral extent of Unit 14 is 13494 Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations

BILLING CODE 3510–22–C Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / Rules and Regulations 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