Thursday, June 6, 2002

Part II

Department of the Interior Fish and Wildlife Service Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Parts 17 and 226 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Gulf Sturgeon; Proposed Rule

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DEPARTMENT OF THE INTERIOR the public on all aspects of this Executive Center Drive North, St. proposal, including data on the Petersburg, FL 33702–2449, (telephone Fish and Wildlife Service economic and other impacts of the 727/570–5312; facsimile 727/570–5517) designation. with questions concerning units 8 to 14. 50 CFR Part 17 DATES: Comments: We will accept SUPPLEMENTARY INFORMATION: RIN 1018–AI23 comments until September 23, 2002. Background Public Hearings: We have scheduled DEPARTMENT OF COMMERCE four public hearings for this proposal. The Gulf sturgeon (Acipenser We will hold public informational oxyrinchus (=oxyrhynchus) desotoi), National Oceanic and Atmospheric meetings prior to each public hearing at also known as the Gulf of Mexico Administration the hearing location. The public sturgeon, is an anadromous fish information sessions will start at 5:00 (ascending rivers from the sea for 50 CFR Part 226 p.m. and end at 6:30 p.m.. The formal breeding), inhabiting coastal rivers from public hearings will start at 7:00 p.m. Louisiana to Florida during the warmer [Docket No. 0202522126–2126–01; I.D. months and overwintering in estuaries, and end at 9:00 p.m. on the dates 052002A] bays, and the Gulf of Mexico. It is a indicated: RIN 0648–AQ03 nearly cylindrical primitive fish (1) August 19, 2002, Live Oak, FL embedded with bony plates or scutes. Endangered and Threatened Wildlife (2) August 20, 2002, Defuniak Springs, The snout is greatly extended with four and Plants; Designation of Critical FL barbels in front of the mouth and the (3) August 21, 2002, Biloxi, MS Habitat for the Gulf Sturgeon suction type mouth is located beneath (4) August 22, 2002, Kenner, LA the head. The upper lobe of the tail is AGENCY: Fish and Wildlife Service, All comments received during the longer than the lower lobe. Adults range Interior, and National Marine Fisheries comment period, both written and from 1.8 to 2.4 meters (m) (6 to 8 feet Service, National Oceanic and presented at public hearings, will (ft)) in length, with adult females larger Atmospheric Administration, receive equal consideration. than males. The Gulf sturgeon is Commerce. ADDRESSES: Comments: If you wish to distinguished from the geographically ACTION: Proposed rule. comment, you may submit your disjunct Atlantic coast subspecies (A. o. comments by any one of several oxyrinchus) by its longer head, pectoral SUMMARY: We, the Fish and Wildlife methods: fins, and spleen (Vladykov 1955, Service (FWS) and the National Marine (1) You may submit written comments Wooley 1985). Fisheries Service (NMFS), collectively and information to the Panama City ‘‘the Services,’’ propose to designate Field Office, addressed to Patty Kelly, Distribution and Status critical habitat for the Gulf sturgeon U.S. Fish and Wildlife Service, 1601 Historically, the Gulf sturgeon (Acipenser oxyrinchus desotoi), a Balboa Avenue, Panama City, FL 32405. occurred from the Mississippi River to threatened species listed under the (2) You may hand-deliver written Tampa Bay. Its present range extends Endangered Species Act of 1973, as comments to the Panama City Field from Lake Pontchartrain and the Pearl amended (Act). We propose 14 Office, at the above address, or fax your River system in Louisiana and geographic areas among the Gulf of comments to 850/763–2177. Mississippi east to the Suwannee River Mexico rivers and tributaries as critical (3) You may send comments by in Florida. Sporadic occurrences have habitat for the Gulf sturgeon. These 14 electronic mail (e-mail) to been recorded as far west as the Rio geographic areas (units) encompass [email protected]. For directions on Grande River between Texas and approximately 2,544 river kilometers electronic filing of comments, see the Mexico, and as far east and south as (rkm) (1,580 river miles (rmi)) and 6,042 ‘‘Public Comments Solicited’’ section. Florida Bay (Wooley and Crateau 1985, square kilometers (km2) (2,333 square Comments and materials received, as Reynolds 1993). miles (mi2)) of estuarine and marine well as supporting documentation used In the late 19th century and early 20th habitat. in the preparation of this proposed rule, century, the Gulf sturgeon supported an Critical habitat identifies specific will be available for public inspection, important commercial fishery, areas that are essential to the by appointment, during normal business providing eggs for caviar, flesh for conservation of a listed species, and that hours at the above address. smoked fish, and swim bladders for may require special management isinglass, a gelatin used in food considerations or protection. If this Public Hearings products and glues (Carr 1983). Gulf proposal is made final, section 7(a)(2) of (1) Suwannee River Water sturgeon numbers declined due to the Act requires that Federal agencies Management District, 9225 C.R. 49, Live overfishing throughout most of the 20th ensure that actions they fund, permit, or Oak, FL 32060. century. The decline was exacerbated by carry out are not likely to result in the (2) City of Defuniak Springs, 71 U.S. habitat loss associated with the destruction or adverse modification of Highway 90 West, Chautauqua Building, construction of water control structures, critical habitat. The regulatory effect of Museum Room, Defuniak Springs, FL such as dams and sills, mostly after the critical habitat designation does not 32433. 1950. In several rivers throughout its extend beyond those activities funded, (3) J.L. Scott Marine Ed Center, 115 range, dams have severely restricted permitted, or carried out by Federal Beach Boulevard, Biloxi, MS 39530. sturgeon access to historic migration agencies. State or private actions, with (4) Hilton New Orleans Airport, 901 routes and spawning areas (Boschung no Federal involvement, are not Airline Drive, Kenner, LA 70062. 1976, Wooley and Crateau 1985, affected. FOR FURTHER INFORMATION CONTACT: McDowell 1988). Section 4 of the Act requires us to Patty Kelly, FWS, at the above address On September 30, 1991, we listed the consider the economic and other (telephone 850/769–0552, extension Gulf sturgeon as a threatened species relevant impacts of specifying any 228; facsimile 850/763–2177) with under the Act (16 U.S.C. 1531 et seq.) particular area as critical habitat. We questions concerning units 1 to 7; or (56 FR 49653). Other threats and hereby solicit data and comments from Stephania Bolden, NMFS, at 9721 potential threats identified in the listing

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rule included modifications to habitat stable carbon isotope ratios of tissue (Fox et al. 2000) and with high densities associated with dredged material samples from subadult and adult of both ghost shrimp and haustoriid disposal, de-snagging, and other Suwannee River Gulf sturgeon and their amphipods (Heard et al. 2000), (2) the navigation maintenance activities; potential fresh water and marine food digestive tracts of two adult Gulf incidental take by commercial sources. A large difference in isotope sturgeon that died during netting fishermen; poor water quality associated ratios between fresh water food sources operations contained numerous ghost with contamination by pesticides, heavy and fish muscle tissue suggests that Gulf shrimp (Fox et al. 2000), (3) stomach metals, and industrial contaminants; sturgeon do not feed significantly in contents of a 30 kg (67 lb) sturgeon aquaculture and incidental or accidental fresh waters. The isotope similarity taken in the upper portion of introductions; and the Gulf sturgeon’s between Gulf sturgeon and marine food Choctawhatchee Bay contained more slow growth and late maturation. The resources strongly indicates that this than 100 individual haustoriid Gulf sturgeon listing rule and the Gulf species relies almost entirely on the amphipods and 67 ghost shrimp (Heard Sturgeon Recovery/Management Plan marine food web for its growth (Gu et et al. 2000), and (4) one-third of 157 (FWS et al. 1995), which was approved al. 2001). sturgeon guts analyzed by Carr et al. by the Services and the Gulf States Once Gulf sturgeon leave the river, (1996b) contained exclusively Marine Fisheries Commission, provide a having spent at least 6 months in the brachipods and ghost shrimp. more detailed discussion of the reasons river fasting, we presume that they Reproduction for the species’ decline and threats to immediately begin feeding. Upon surviving populations. exiting the rivers, Gulf sturgeon are Gulf sturgeon are long-lived, with The Gulf Sturgeon Recovery/ found in high concentrations near their some individuals reaching at least 42 Management Plan (FWS et al. 1995) natal river mouths. Lakes and bays at years in age (Huff 1975). Age at sexual recommended that genetic studies be the mouths of the river systems where maturity for females ranges from 8 to 17 done to determine geographically Gulf sturgeon occur are important years, and for males from 7 to 21 years distinct management units. Some work because they offer the first opportunity (Huff 1975). Gulf sturgeon eggs are in this regard has been completed for Gulf sturgeon exiting their natal demersal (they are heavy and sink to the (Waldman and Wirgin 1998), but we rivers to forage. Gulf sturgeon rely bottom), adhesive, and vary in color have not formally adopted management almost entirely on estuarine and marine from gray to brown to black (Vladykov units at this time. For purposes of this food for their growth (Gu et al. 2001). 1963, Huff 1975, Parauka et al. 1991). proposed rule, we have used the term Gulf sturgeon must be able to consume Chapman et al. (1993) estimated that subpopulation to subdivide the Gulf sufficient quantities of prey while in mature female Gulf sturgeon produce an sturgeon population based on estuarine and marine waters to regain average of 400,000 eggs. Habitat at egg geography, degree of connectedness, the weight they lose while in the river collection sites consist of limestone and genetic interchange (Lande and system and to maintain positive growth bluffs and outcroppings, cobble, Barrowclough 1987). Seven on a yearly basis. In addition, limestone bedrock covered with gravel subpopulations are described below. reproductive Gulf sturgeon require and small cobble, gravel, and sand additional food resources to obtain (Marchant and Shutters 1996, Sulak and Feeding Habits sufficient energy necessary for Clugston 1999, Fox et al. 2000). A dense Gulf sturgeon feeding habits in reproduction (Fox et al. in press, Murie matrix of gravel or cobble is probably freshwater vary depending on the fish’s and Parkyn pers. comm. 2002). essential for Gulf sturgeon egg adhesion life history stage (i.e., young-of-year, Adult and subadult Gulf sturgeon, and the sheltering of the yolk sac larvae, juvenile, subadult, adult). Young-of-year during marine and estuarine periods, and is a habitat the adults apparently Gulf sturgeon remain in freshwater are thought to forage opportunistically select (Sulak and Clugston 1999). Other through early February feeding on (Huff 1975), primarily on benthic substrates identified as possible aquatic invertebrates and detritus (bottom dwelling) invertebrates. Gut spawning habitat include marl (clay (Mason and Clugston 1993, Sulak and content analyses have indicated that the with substantial calcium carbonate), Clugston 1999). Juvenile feeding is Gulf sturgeon’s diet is predominated by soapstone, or hard clay (W. Slack, believed to be widely distributed, amphipods, lancelets, polychaetes, Mississippi Museum of Natural Science, exploiting scarce food resources gastropods, shrimp, isopods, molluscs, pers. comm. 2002; F. Parauka, FWS, throughout the river, including aquatic and crustaceans (Huff 1975, Mason and pers. comm. 2002). Water depths at egg insects (e.g., mayflies and caddisflies), Clugston 1993, Carr et al. 1996b, Fox et collection sites ranged from 1.4 to 7.9 m worms (oligochaetes), and bivalve al. 2000, Fox et al. in press). Gulf (4.6 to 26 ft), with temperatures ranging molluscs (Huff 1975, Mason and sturgeon from the Suwannee River from 18.3 to 22.0 degrees Celsius (°C) Clugston 1993). Mason and Clugston subpopulation are known to forage on (64.9 to 71.6 degrees Fahrenheit (°F)) (1993) found that subadult and adult brachiopods (D. Murie and D. Parkyn, (Fox et al. 2000). Laboratory Gulf sturgeon collected during June and University of Florida (UF), pers. comm. experiments indicated optimal water October do not feed in fresh water. 2002); however this is not a documented temperature for survival of Gulf Many reports indicate that adult and prey of other subpopulations. Ghost sturgeon larvae is between 15 and 20°C subadult Gulf sturgeon fast and lose up shrimp (Lepidophthalmus louisianensis) (59 and 68°F), with low tolerance to to 30 percent of their total body weight and the haustoriid amphipod temperatures above 25°C (77°F) while in fresh water, and then (Lepidactylus sp.) are strongly suspected (Chapman and Carr 1995). compensate the loss during winter to be the most important prey for adult Sulak and Clugston (1999) suggested feeding in the sea (Carr 1983, Wooley Gulf sturgeon over 20 kilograms (kg) (44 that sturgeon spawning activity in the and Crateau 1985, Clugston et al. 1995, pounds (lb)) (Heard et al. 2000, Fox et Suwannee River is related to the lunar Morrow et al. 1998a, Heise et al. 1999a, al. in press). This hypothesis is based on phase of the moon, but only after the Sulak and Clugston 1999, Ross et al. the following evidence—(1) Gulf water temperature has risen to 17°C 2000). Gu et al. (2001) tested the sturgeon have been consistently located (62.6°F). Fox et al. (in press) however, hypothesis that Gulf sturgeon do not and observed actively feeding in areas found little evidence of spawning feed significantly during their annual where numerous burrows similar to associated with lunar cycles within the residence in fresh waters by comparing those occupied by ghost shrimp exist Choctawhatchee River system.

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Spawning in the Suwannee River occurs thermal plume emanating from a spring 33.7°C (59.5 and 92.7°F) with dissolved during the general period of spring high (Clugston et al. 1995, Potak et al. 1995, oxygen levels between 5.6 and 9.1 water, when ionic conductivity and Foster and Clugston 1997). These resting milligrams per liter (mg/l) (Morrow et calcium ion concentration are most areas are also often located in deep al. 1998a, Hightower et al. in press). favorable for egg development and holes or shallow areas along straight- In comparison to other fish species, adhesion (Sulak and Clugston 1999). aways ranging from 2 to 19 m (6.6 to sturgeon have a limited behavioral and Fox et al. (in press) found no clear 62.3 ft) deep (Wooley and Crateau 1985, physiological capacity to respond to pattern between timing of river entrance Morrow et al. 1998a, Ross et al. 2001a hypoxia (insufficient oxygen levels) and flow patterns on the and b, Craft et al. 2001, Hightower et al. (Secor and Niklitschek 2001). Basal Choctawhatchee River. in press). The substrates consisted of metabolism, growth, consumption, and Atlantic sturgeon (A. oxyrhynchus) mixtures of limerock and sand (Clugston survival are sensitive to changes in exhibit a long inter-spawning period, et al. 1995), sand and gravel (Wooley oxygen levels (Secor and Niklitschek with females spawning at intervals and Crateau 1985, Morrow et al. 1998a), 2001). Temperatures greater than 20°C ranging from every 3 to 5 years, and or just sandy substrate (Hightower et al. (68°F) amplify the effect of hypoxia on males every 1 to 5 years (Smith 1985). in press). sturgeon and other fishes (Coutant It is believed that Gulf sturgeon exhibit River flow may serve as an 1987). In laboratory experiments, young similar behavior, as male Gulf sturgeon environmental cue that governs both shortnose sturgeon (A. brevirostrum) are capable of annual spawning, and sturgeon migration and spawning (less than 77 days old) died at oxygen females require more than one year (Chapman and Carr 1995). If the flow levels of 3.0 mg/l and all sturgeon died between spawning events (Huff 1975, rate is too high, sturgeon in several life- at oxygen levels of 2.0 mg/l (Jenkins et Fox et al. 2000). history stages can be adversely affected. al. 1993). Data concerning the Data describing the sturgeon’s temperature, oxygen, and current Fresh Water Habitat swimming ability in the Suwannee velocity requirements of cultured In the spring (March to May), adult River strongly indicated that they sturgeon are being collected. and subadult Gulf sturgeon return to cannot continually swim against Researchers plan to use this information their natal river, where sexually mature prevailing currents of greater than 1 to to develop detailed information on sturgeon spawn, and the population 2 m per second (3.2 to 6.6 ft per second) water flow requirements of wild spends until October or November (6 to (Wakeford 2001). If the flow is too sturgeon throughout different phases of 8 months) in fresh water rivers strong, eggs might not be able to settle their fresh water residence (Wakeford (Odenkirk 1989, Foster 1993, Clugston on and adhere to suitable substrate 2001). et al. 1995, Fox et al. 2000). During their (Wakeford 2001). Flow velocity needs Estuarine and Marine Habitat early life history stages, sturgeon require for age zero sturgeon may vary bedrock and clean gravel or cobble depending on substrate type. Chan et al. Subadult and adult Gulf sturgeon substrate for eggs to adhere to and for (1997) found that age zero Gulf sturgeon spend cool months (October or shelter for developing larvae (Sulak and under laboratory conditions exposed to November through March or April) in Clugston 1998). Young-of-year appear to water velocities over 12 centimeters per estuarine areas, bays, or in the Gulf of disperse widely, using extensive second (cm/s) (4.7 inches per second Mexico (Odenkirk 1989, Foster 1993, portions of the river as nursery habitat. (in/s)) preferred a cobble substrate, but Clugston et al. 1995). Studies of They are typically found on sandbars favored water velocities under 12 cm/s subadult Gulf sturgeon (ages 4 to 7) in and sand shoals over rippled bottom (4.7 in/s) and then utilized a variety of Choctawhatchee Bay found that 78 and in shallow, relatively open, substrates (sand, gravel, and cobble). percent of tagged fish remained in the unstructured areas. This dispersion may Natural surface and groundwater bay the entire winter, while 13 percent be an adaptation to maximize scarce discharges influence a river’s ventured into a connecting bay. Possibly food resources (Randall and Sulak characteristic fluctuations in volume, 9 percent spent some time in the Gulf 1999). Clugston et al. (1995) reported depth, and velocity (Leitman et al. 1993, of Mexico (FWS 1998). Adult Gulf that young Gulf sturgeon in the Albertson and Torak 2002). sturgeon are more likely to overwinter Suwannee River, weighing between 0.3 Gulf sturgeon require large areas of in the Gulf of Mexico, with 40 percent and 2.4 kg (0.7 and 5.3 lb), remain in the diverse habitat that have natural of the tagged adults presumed to have vicinity of the river mouth and estuary variations in water flow, velocity, left Choctawhatchee Bay and spent during the winter and spring. temperature, and turbidity (FWS et al. extended periods of time in the Gulf of Adult Gulf sturgeon spawn in upper 1995, Wakeford 2001). Change in Mexico (Fox and Hightower 1998a). In river reaches. On some river systems temperature is one of the most contrast, Gulf sturgeon from the such as the Pascagoula River and important factors in initiating sturgeon Suwannee River subpopulation are Apalachicola River, adult and subadult migration (Wooley and Crateau 1985, known to migrate into the nearshore Gulf sturgeon remain near the spawning Chapman and Carr 1995, Foster and waters, where they remain for up to two grounds throughout the summer months Clugston 1997) (see the ‘‘Migration’’ months and then depart to unknown (Wooley and Crateau 1985, Ross et al. section for temperature ranges). feeding locations in the open Gulf of 2001b). However, in other rivers Gulf Laboratory experiments show that Gulf Mexico (Carr et al. 1996b, Edwards et al. sturgeon spawn and move downstream sturgeon eggs, embryos, and larvae have in prep.). to areas referred to as summer resting or the highest survival rates when Subadult Gulf sturgeon show a holding areas. Adults and subadults are temperatures are between 15 and 20°C preference for sandy shoreline habitats not distributed uniformly throughout (59 and 68°F). Mortality rates of Gulf with water depths less than 3.5 m (11.5 the river, but show a preference for sturgeon gametes and embryos are ft) and salinities less than 6.3 parts per these discrete areas usually located in highest when temperatures are 25°C thousand (Parauka et al. in press). Fox lower and middle river reaches (Potak et (77°F) and above (Chapman and Carr and Hightower (1998a) found that adult al. 1995). Often, these resting areas are 1995) (see ‘‘Reproduction’’ section for Gulf sturgeon monitored in located in close proximity to springs more detail). Researchers have Choctawhatchee Bay use some of the throughout the warmest months of the documented temperature ranges at Gulf same habitats as subadults. Some year, but not located within a spring or sturgeon resting areas between 15.3 and subadult Gulf sturgeon use seagrass

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habitats in Choctawhatchee Bay. the coastal rivers in early spring (i.e., important strategy for feeding and for However, the majority of tagged fish March through May) when river water occasional travel to non-natal rivers for have been located in areas lacking temperatures range from 16.0 to 23.°C possible spawning and genetic seagrass (Parauka et al. in press). Adult (60.8 to 73.4°C) (Huff 1975, Carr 1983, interchange. Bays and portions of Gulf Gulf sturgeon also have not been Wooley and Crateau 1985, Odenkirk of Mexico waters adjacent to the lakes frequently found in areas containing 1989, Clugston et al. 1995, Foster and and bays near the mouths of the rivers seagrass, which were concentrated in Clugston 1997, Fox and Hightower where Gulf sturgeon occur are believed the western portion of the bay. 1998, Sulak and Clugston 1999, Fox et to be important for feeding and/or Craft et al. (2001) found that Gulf al. 2000). Some research supports the migrating (for increased gene flow and, sturgeon in Pensacola Bay appear to theory that spring migration coincides therefore, increased genetic stability prefer shallow shoals 1.5 to 2.1 m (5 to with the general period of spring high among subpopulations). 7 ft) and deep holes near passes. water (Sulak and Clugston 1999), while Unvegetated, fine to medium-grain sand observations on other rivers systems do When temperature drops occur that habitats, such as sandbars, and not support this theory (Fox et al. in are associated with major cold fronts, intertidal and subtidal energy zones press). researchers of the Escambia, Yellow, resulting in sediment sorting and a Fall downstream migration from fresh and Suwannee River subpopulations preponderance of sand support a variety to saltwater begins in September (at have been unable to locate adult Gulf of potential prey items including about 23°C (73.4°F)) and continues sturgeon within the bays (Craft et al. estuarine crustaceans, small bivalve through November (Huff 1975, Wooley 2001, Fox et al. in press, Edwards et al. mollusks, and lancelets (Brim pers. and Crateau 1985, Foster and Clugston in prep.). It is hypothesized that the comm. 2002, Menzel 1971, Abele 1986, 1997). During the fall migration from cold fronts disperse sturgeon to more American Fisheries Society 1989). fresh to saltwater, Gulf sturgeon may distant foraging grounds. It is currently Habitats used by Gulf sturgeon in the require a period of physiological unknown whether Gulf sturgeon vicinity of the Mississippi Sound barrier acclimation to changing salinity levels, undertake extensive offshore migrations, islands tend to have a sand substrate referred to as osmoregulation or staging and further study is needed to and an average depth of 1.9 to 5.9 m (6.2 (Wooley and Crateau 1985). This period determine whether important winter to 19.4 ft). Preliminary data from bottom may be short (Fox et al. in press) as feeding habitat occurs in farther offshore samples taken in these barrier island sturgeon develop an active mechanism areas. areas show that all samples contain for osmoregulation and ionic balance by lancelets (Branchiostoma). Since age one (Altinok 1997). On some river Sulak and Clugston (1999) describe lancelets are a documented prey of Gulf systems, timing of the fall migration two hypotheses regarding where adult sturgeon, it is likely that Gulf sturgeon appears to be associated with pulses of Gulf sturgeon may overwinter in the are feeding along the sand substrate at higher river discharge (Heise et al. Gulf of Mexico to find abundant prey. barrier island passes (Ross et al. 2001a). 1999a and b, Ross et al. 2000 and 2001b, The first hypothesis is that Gulf Gulf nearshore (less than 1.6 km (1 mi)) Parauka et al. in press). sturgeon spread along the coast in unconsolidated, fine-medium grain Sturgeon ages 1 through 6 remain in nearshore waters in depths less than 10 sands, including natural inlets and the mouth of the Suwannee River over m (33 ft). The alternative hypothesis is passes from the Gulf to estuaries, winter. In late January through early that they migrate far offshore to the support crustaceans such as mole crabs, February, young-of-the-year Gulf broad sedimentary plateau in deep sand fleas, various amphipod species, sturgeon migrate down river for the first water (40 to 100 m (131 to 328 ft)) west and lancelets (Brim pers. comm. 2002, time (Sulak and Clugston 1999). Huff of the Florida Middle Grounds, where Menzel 1971, Abele 1986, American (1975) noted that juvenile Gulf sturgeon over twenty species of bottom-feeding Fisheries Society 1989). in the Suwannee River most likely fish congregate in the winter (Darnell Estuary and bay unvegetated ‘‘mud’’ participated in pre- and post-spawning and Kleypas 1987). Available data habitats having a preponderance of migrations, along with the adults. support the first hypothesis. Evaluation natural silts and clays support Findeis (1997) describes sturgeon of tagging data has identified several burrowing and deep burrowing (Acipenseridae) as exhibiting nearshore Gulf of Mexico feeding evolutionary traits adapted for benthic crustaceans, such as ghost shrimp, small migrations, but no offshore Gulf of cruising. Tracking observations by Sulak crabs, also various polychaete worms, Mexico feeding migrations. Telemetry and Clugston (1999), Edwards et al. (in and small bivalve mollusks (Brim pers. data document Gulf sturgeon from the comm. 2002, Menzel 1971, Abele 1986, prep.), and Fox et al. (in press) support Pearl River and Pascagoula River American Fisheries Society 1989). Gulf that individual fish move over an area subpopulations migrate from their natal sturgeon are found in these areas and until they encounter suitable prey type bay systems to Mississippi Sound and since these are known food sources, it and density, at which time they forage move along the barrier islands on both is assumed that Gulf sturgeon are also for extended periods of time. Individual the barrier island passes (Ross et al. feeding in these areas. fish often remained in localized areas (less than 1 km2 (0.4 mi2) for extended 2001a, Rogillio et al. in prep.). Gulf Migration periods of time (greater than two weeks) sturgeon from the Choctawhatchee Migratory behavior of the Gulf and then moved rapidly to another area River, Yellow River, and Apalachicola sturgeon varies by sex, maturity, water where localized movements occurred River have been documented migrating temperature, and river flow. Male Gulf again (Fox et al. in press). It is unknown in the nearshore Gulf of Mexico waters sturgeon generally enter the rivers precisely how much benthic area is between Pensacola and Apalachicola earlier in the spring and move greater needed to sustain Gulf sturgeon health Bays units (Fox et al. in press, F. Paruka distances than females; ripe (in and growth, but because Gulf sturgeon pers. comm. 2002). Telemetry data from reproductive condition) males and have been known to travel long the Gulf of Mexico mainly show females enter the river earlier than distances (greater than 161 km (100 mi)) sturgeon in depths of 6 m (19.8 ft) or nonripe fish (Fox et al. 2000). Adults during their winter feeding phase, less (Ross et al. 2001a, Rogillio et al. in and subadults begin moving from the significant resources must be necessary. prep., Fox et al. in press, F. Paruka pers. estuaries, bays, and Gulf of Mexico into These winter migrations are an comm. 2002).

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River-Specific Fidelity exchanging less than one mature female critical habitat by May 2, 1992. This Stabile et al. (1996) analyzed Gulf per generation (Waldman and Wirgin decision, however, was not made. sturgeon subpopulations from eight 1997). On August 11, 1994, the Sierra Club Legal Defense Fund, Inc. (Fund), on drainages along the Gulf of Mexico for Previous Federal Action genetic diversity. They noted significant behalf of the Orleans Audubon Society and Florida Wildlife Federation, gave differences among Gulf sturgeon stocks Federal action on the Gulf sturgeon written notice of their intent to file suit and suggested that they displayed began in 1982, when the fish was against the Department of the Interior region-specific affinities and may included as a Category 2 candidate for failure to designate critical habitat exhibit river-specific fidelity. Stabile et species for listing in the FWS’s for the Gulf sturgeon within the al. (1996) identified five regional or vertebrate notices of review dated statutory time limits established under river-specific stocks (from west to December 30, 1982 (47 FR 58454) and the Act. The Fund filed suit on October east)—(1) Lake Pontchartrain and Pearl September 18, 1985 (50 FR 37958), and 11, 1994 (Orleans Audubon Society v. River, (2) Pascagoula River, (3) Escambia in the animal notice of review dated Babbitt, Civ. No. 94–3510 (E.D. La)). and Yellow Rivers, (4) Choctawhatchee January 6, 1989 (54 FR 554). At that Following a court order on August 9, River, and (5) Apalachicola, time, the FWS gave Category 2 designation to species for which listing 1995, granting the Fund’s motion for Ochlockonee, and Suwannee Rivers. summary judgement, the Services Tagging studies suggest that Gulf as threatened or endangered was published a notice of decision on sturgeon exhibit a high degree of river possibly appropriate, but for which critical habitat designation for the Gulf fidelity. From 1981 to 1993, 4,100 fish additional biological information was sturgeon on August 23, 1995 (60 FR were tagged in the Apalachicola and needed to support a proposed rule. A 43721). We determined that critical Suwannee Rivers. Of these, 860 fish (21 status report on the Gulf sturgeon (Hollowell 1980) had concluded that the habitat designation was not prudent percent) were recaptured in the river of based on the lack of additional their initial collection. Only eight fish had been reduced to a small population due to overfishing and conservation benefit to the species. subadults (.002 percent) moved between On September 22, 1995, the Services rivers (FWS et al. 1995). Foster and habitat loss. In 1988, the FWS completed a report on the conservation and the Gulf States Marine Fisheries Clugston (1997) noted that telemetered Commission approved the Gulf status of the Gulf sturgeon, which Gulf sturgeon in the Suwannee River Sturgeon Recovery/Management Plan recommended listing it as a threatened returned to the same areas as the (FWS et al. 1995). The recovery plan species (Barkuloo 1988). previous summer, suggesting that established the criteria that must be met chemical cuing may influence The Services jointly proposed the prior to the delisting of the Gulf distribution. Gulf sturgeon for listing as a threatened sturgeon. The recovery plan also To date, biologists have documented species on May 2, 1990 (55 FR 18357). identified the actions that are needed to a total of 21 Gulf sturgeon making inter- In that proposed rule, we stated that assist in the recovery of the Gulf river movements from natal rivers. They designation of critical habitat was not sturgeon. are as follows—Apalachicola River to prudent due to the species’ broad range On August 12, 1996, the plaintiffs Suwannee River, six Gulf sturgeon (Carr and the lack of knowledge about filed a motion to add the Department of et al. 1996b); Suwannee River to specific areas used by the species. We Commerce as a defendant in the lawsuit. Apalachicola River, three sturgeon (Carr published the final rule on September The Fund amended their complaint to et al. 1996b, F. Parauka pers. comm. 30, 1991 (56 FR 49653) to add Gulf challenge the August 1995 ‘‘not 2002); Choctawhatchee River to sturgeon to the list of threatened prudent’’ determination. On October 30, Apalachicola River, one sturgeon (F. species, and included a special rule 1997, the court granted the plaintiffs’ Parauka pers. comm. 2002); Yellow under section 4(d) of the Act to allow motion for summary judgment, with River to Choctawhatchee River, three the take of Gulf sturgeon, in accordance relief restricted to a remand of the ‘‘not sturgeon (one adult female, one with applicable State fish and wildlife prudent’’ determination to the Services, subadult female) (Craft et al. 2001); conservation laws and regulations, for requiring that the Services publish a Yellow River to Louisiana Estuarine educational and scientific purposes, the determination on designation of critical area, one female sturgeon (Craft et al. enhancement of propagation or survival habitat, based on the best scientific 2001); Escambia River to Yellow River, of the species, zoological exhibition, information available. On February 27, one mature female on spawning grounds and other conservation purposes. In the 1998, we published a notice of decision (Craft et al. 2001); Suwannee River to final rule, we found that a critical (63 FR 9967) on critical habitat Ochlockonee River, one sturgeon (FWS habitat designation may be prudent but designation for the Gulf sturgeon. We et al. 1995); Choctawhatchee River to was not determinable. Section 4(b)(6)(C) again determined that lack of additional Escambia River, one male sturgeon (Fox of the Act provides that a concurrent conservation benefit from critical et al. in press); Choctawhatchee River to critical habitat determination is not habitat designation for this species Escambia, one female sturgeon (Fox et required with a final regulation made such designation not prudent. al. in press); Pearl River (Bogue Chitto) implementing endangered or threatened On December 18, 1998, the Sierra to Pascagoula River, one sturgeon (Ross status and that the final designation may Club sued the Services challenging the et al. 2001b); Choctawhatchee River to be postponed for one additional year new determination not to designate Pascagoula River, one subadult sturgeon beyond the period specified in section critical habitat for the Gulf sturgeon (Ross et al. 2001b); and Pascagoula 4(b)(6)(A), if a prompt determination of (Sierra Club v. U.S. Fish and Wildlife River to Yellow River, one sturgeon endangered or threatened status is Service et al. CA No. 98–3788 (E.D. (Ross et al. 2001b). Tallman and Healey essential to the conservation of the La.)). On January 25, 2000, the Court (1994) note that observed straying rates species, or critical habitat is not then issued an order granting our motion for between rivers were not the same as determinable. We found that prompt summary judgment and dismissing the actual gene flow rates, i.e. inter-stock determination of threatened status was complaint. The Sierra Club filed an movement does not equate to successful essential to the conservation of the appeal and, in March 2001, the United reproduction. The gene flow is low in species and stated that we would make States Court of Appeals for the Fifth Gulf sturgeon stocks, with each stock a final decision on designation of Circuit reversed the decision of the

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District Court and instructed the District procedures useful in protecting the and original sources of information as Court to remand the decision to us for physical and biological features of the the basis for recommendations to reconsideration (Sierra Club v. U.S. Fish environment for the conservation of designate critical habitat. When and Wildlife Service, 245 F.3d 434 (5th listed species. If any areas containing determining which areas are critical Cir. 2001)). On August 3, 2001, the the primary constituent elements are habitat, information that should be District Court issued an order directing currently being managed to address the considered includes the listing package us to publish a proposed decision conservation needs of the Gulf sturgeon, for the species, the recovery plan, concerning critical habitat designation they may not require special articles in peer-reviewed journals, for the Gulf sturgeon by February 2, management or protection, and, conservation plans developed by States 2002, and a final decision by August 2, therefore, may not meet the definition of and Counties, scientific status surveys, 2002. Negotiation with the plaintiff critical habitat in section 3(5)(A)(i) of studies, and biological assessments, resulted in an agreement to publish the the Act. unpublished materials, and expert proposed decision by May 23, 2002, and When we designate critical habitat, opinion or personal knowledge. the final decision by February 28, 2003. we may not have the information Habitat is often dynamic, however, This proposal is the product of our necessary to identify all areas which are and populations may move from one reexamination of our 1998 prudency essential for the conservation of the area to another over time. Furthermore, determination for the Gulf sturgeon. It species. Nevertheless, we are required to we recognize that designation of critical reflects our interpretation of the recent designate those areas we know to be habitat may not include all of the judicial opinions on critical habitat critical habitat, using the best habitat areas that may eventually be designation and the standards placed on information available to us. determined to be necessary for the us for making a prudency Within the geographic area of the recovery of the species. Therefore, determination. If additional information species, we will designate only critical habitat designations do not becomes available on the species’ currently known essential areas. We signal that habitat outside the biology and distribution and threats to will not speculate about what areas designation is unimportant or may not the species, we may reevaluate this might be found to be essential if better be required for recovery. Areas outside proposal to designate critical habitat, information became available, or what the critical habitat designation will including proposing additional critical areas may become essential over time. If continue to be subject to conservation habitat, proposing the deletion or the information available at the time of actions that may be implemented under boundary refinement of existing designation does not show that an area section 7(a)(1) of the Act and to the proposed critical habitat, or provides essential life cycle needs of the regulatory protections afforded by the withdrawing our proposal to designate species, then the area will not be section 7(a)(2) jeopardy standard and critical habitat. included in the critical habitat the section 9 of the Act take prohibition, designation. Our regulations state that, as determined on the basis of the best Critical Habitat ‘‘The Secretary shall designate as available information at the time of the Critical habitat is defined in section critical habitat areas outside the action. It is possible that federally 3(5)(A) of the Act as (i) the specific areas geographic area presently occupied by funded or assisted projects affecting within the geographic area occupied by the species only when a designation listed species outside their designated a species, at the time it is listed in limited to its present range would be critical habitat areas could jeopardize accordance with the Act, on which are inadequate to ensure the conservation of those species. Similarly, critical habitat found those physical or biological the species’’ (50 CFR 424.12(e)). designations made on the basis of the features (I) essential to the conservation Accordingly, when the best available best available information at the time of of the species and (II) that may require scientific data do not demonstrate that designation will not control the special management considerations or the conservation needs of the species direction and substance of future protection; and (ii) specific areas require designation of critical habitat recovery plans, habitat conservation outside the geographic area occupied by outside of occupied areas, we will not plans, or other species conservation a species at the time it is listed, upon designate critical habitat in areas planning and recovery efforts if new a determination that such areas are outside the geographic area occupied by information available to these planning essential for the conservation of the the species. efforts calls for a different outcome. species. ‘‘Conservation’’ is defined in Section 4(b)(2) of the Act requires that section 3(3) of the Act as the use of all we take into consideration the economic Prudency Determination methods and procedures that are impact, and any other relevant impact, Section 4(a)(3) of the Act and necessary to bring any endangered or of specifying any particular area as implementing regulations (50 CFR threatened species to the point at which critical habitat. We may exclude areas 424.12) require that, to the maximum listing under the Act is no longer from critical habitat designation when extent prudent and determinable, we necessary. the benefits of exclusion outweigh the designate critical habitat at the time a In order for habitat to be included in benefits of including the areas within species is listed as endangered or a critical habitat designation, the habitat critical habitat, provided the exclusion threatened. Regulations at 50 CFR features must be ‘‘essential to the will not result in extinction of the 424.12(a)(1) state that the designation of conservation of the species.’’ Such species. critical habitat is not prudent when one critical habitat designations identify, to Our Policy on Information Standards or both of the following situations exist: the extent known using the best Under the Endangered Species Act, (1) The species is threatened by taking scientific data available, habitat areas published on July 1, 1994 (59 FR or other activity and the identification that provide essential life cycle needs of 34271), provides guidance to ensure that of critical habitat can be expected to the species (i.e., areas on which are our decisions are based on the best increase the degree of threat to the found the primary constituent elements, scientific and commercial data species or (2) such designation of as defined at 50 CFR 424.12(b)). available. It requires that our biologists, critical habitat would not be beneficial Regulations at 50 CFR 424.02(j) define to the extent consistent with the Act and to the species. special management considerations or with the use of the best scientific and In our February 27, 1998, notice of protection to mean any methods or commercial data available, use primary decision, we determined that the

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designation of critical habitat was not of critical habitat, potential conflicts Management Plan (FWS et al. 1995) prudent for the Gulf sturgeon because between Federal actions and listed contains valuable biological such designation would not be species can be identified and possibly information, and it is cited throughout beneficial to the species. However, on avoided early in the agency’s process. this document. However, the state of our March 15, 2001, the United States Court It is true that we are already working knowledge regarding Gulf sturgeon of Appeals for the Fifth Circuit with Federal and State agencies, and biology and distribution has changed determined that this ‘‘not prudent’’ private individuals and organizations, markedly since publication of the determination was made erroneously, in carrying out conservation activities recovery plan for this species. The and ordered us to reconsider it (Sierra for the Gulf sturgeon, such as recovery criteria put forth in this Club v. U.S. Fish and Wildlife Service, conducting population surveys and recovery plan were deemed preliminary 245 F.3d 434). Accordingly, we assessing habitat conditions. It is also and may now warrant revision in light withdraw our previous determination true that these entities are fully aware of of new information. As a result of recent that designation of critical habitat will the distribution, status, and habitat research and survey efforts directed not benefit the Gulf sturgeon. requirements for the Gulf sturgeon, as towards this species, substantial In reconsidering whether designation they are currently known. However, as portions of the biological information of critical habitat for the Gulf sturgeon discussed above, some additional presented in the recovery plan are now will be prudent, we find that educational and informational benefit dated or obsolete. Thus, although the designation will be clearly beneficial to will result from designation. recovery plan is a valuable source of the species. Critical habitat will Though the identification of known information, it is not the final authority primarily benefit the sturgeon through spawning habitat in this proposed rule on the natural history and distribution the Act’s consulting mechanism under may increase illegal harvest, we of this species. section 7 of the Act. If critical habitat is currently have no knowledge that illegal In the past, we had assumed, based on designated for the Gulf sturgeon, other harvest is or has been an issue with the the information available at the time, Federal agencies will be required to Gulf sturgeon. Since the States of that unoccupied habitat would be consult with us on actions they carry Louisiana, Mississippi, Alabama, and necessary for the recovery of the Gulf out, fund, or authorize, to ensure that Florida have deemed harvest illegal sturgeon. Since approval of the recovery their actions will not destroy or since the 1980s, and we found no plan in 1995 and our 1998 not prudent adversely modify critical habitat. In this records of illegal harvest during our finding, we have collected new way, a critical habitat designation will literature review or in discussions with biological information on this species. protect areas that are necessary for the researchers, we have found no evidence We have analyzed what is necessary for conservation of the species. It may also that identification of Gulf sturgeon the conservation of the Gulf sturgeon, as serve to enhance awareness within critical habitat would increase the described above, and based on the best Federal agencies and the general public degree of threat to the species. scientific information available at this of the importance of Gulf sturgeon Therefore, we propose that designation time, we have determined that habitat and the need for special of critical habitat is prudent for the Gulf unoccupied habitat is not essential to management considerations. sturgeon. the conservation of the Gulf sturgeon. A designation of critical habitat will Methods and Criteria Used To Identify provide Federal agencies with a clearer Determining the Scale of the Proposed Critical Habitat indication as to when consultation Designation under Section 7 of the Act is required, As required by section 4(b)(2) of the We first evaluated the Gulf sturgeon particularly in cases where the action Act and its implementing regulations in the context of its current distribution would not result in direct mortality, (50 CFR 424.12), this proposal is based throughout the historic range to injury or harm to individuals of the on the best scientific information determine what portion of the range species (e.g., an action occurring within available concerning the species’ must be conserved to ensure recovery of the critical habitat area when or where present and historical range, habitat, the species. We considered several the Gulf sturgeon is not present). The biology, and threats. In preparing this factors in this evaluation—(1) critical habitat designation, in rule, we reviewed and summarized the Maintaining overall genetic integrity describing the essential features of the current information available on the and minimizing the potential for habitat, will also help determine which Gulf sturgeon, including the physical inbreeding, (2) retaining potential activities conducted outside the and biological features that are essential evolutionary importance at the margins designated area are subject to section 7 for the conservation of the species (see of the species’ range by protecting the consultation (e.g., activities that may ‘‘Primary Constituent Elements’’ eastern- and western-most affect essential features of the section), and identified the areas subpopulations, (3) decreasing the designated area). For example, disposal containing these features. The extinction risk of a subpopulation by of waste material in water adjacent to a information used includes known protecting adjacent subpopulations that critical habitat area may affect an locations; our own site-specific species can provide a rescue effect, if needed, essential feature (water quality) of the and habitat information; State-wide (4) avoiding the potential for designated habitat and so would be Geographic Information System (GIS) subpopulation extirpation from subject to the provisions of section 7. coverages (e.g., land ownership, environmental catastrophes, and (5) A critical habitat designation will also bathymetry (the measurement of depths protecting sufficient habitat to support assist Federal agencies in planning of water in oceans, seas, and lakes), and full recovery of the species. future actions because it establishes, in estuarine substrates); the final listing The historic range of the Gulf advance, those habitats that will be rule for the Gulf sturgeon; recent sturgeon included nine major rivers and given an additional review in section 7 biological surveys and reports; peer- several smaller rivers from the consultations. This is particularly true reviewed literature; our recovery plan; Mississippi River, Louisiana, to the in cases where there are alternative discussions and recommendations from Suwannee River, Florida, and in marine areas that would provide for the Gulf sturgeon experts; and information waters of the Central and Eastern Gulf conservation of the species and the received during Gulf sturgeon recovery of Mexico, south to Tampa Bay (Wooley success of the action. With a designation meetings. The Gulf Sturgeon Recovery/ and Crateau 1985, FWS et al. 1995).

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Seven of these major river systems 2001). In light of this, we determined occupied by the seven reproducing continue to support reproducing that it is necessary to propose as critical subpopulations, we evaluated which subpopulations. These include (from habitat rivers used by subpopulations habitats used by those seven west to east)—the Pearl, Pascagoula, evenly spaced between the western- and subpopulations are essential to their Escambia, Yellow/Blackwater, eastern-most limits of the current range. conservation. To conduct this Choctawhatchee, Apalachicola, and To ensure conservation of the species, evaluation, we assessed the critical life Suwannee Rivers. subpopulations must be geographically history components of Gulf sturgeon as Gulf sturgeon is listed as a single located so that existing subpopulations they relate to habitat. Gulf sturgeon use Distinct Population Segment (DPS) could serve as sources of sturgeon the rivers for spawning, juvenile throughout its range (see policy 61 FR emigration, albeit at a slow rate feeding, adult resting, and staging, and 4722). However, this species exists as (Waldman and Wirgin 1997), to adjacent to move between the areas that support several subpopulations with limited rivers as their subpopulations increase these components. Gulf sturgeon use the mixing. The Gulf Sturgeon Recovery/ and so that they can provide a rescue lower riverine, estuarine, and marine Management Plan (FWS et al. 1995) effect if an adjacent subpopulation is environment during winter months noted the importance of identifying and extirpated (Brown and Kodric-Brown primarily for feeding, and more rarely, maintaining genetic integrity and 1977, Hanski and Gyllenberg 1993, for inter-river migrations. diversity during restoration efforts on Young and Harig 2001). We then investigated what types of Gulf sturgeon. A severe loss of genetic Designating critical habitat for only a habitat support these life history variability often leads to a noticeable few subpopulation units, or for units not components and where these areas of decline in the fitness of a species (Soule´ spaced in a manner that allows fish to habitat are located. We evaluated 1987). Evidence suggests that peripheral exchange with other subpopulations, empirical data, published and subpopulations are often genetically and could increase the vulnerability of the unpublished literature, and solicited the morphologically divergent from central species due to isolation of views of experts. These habitat subpopulations (Lesica and Allendorf subpopulations. Protection of a single, components are described in the 1995). Distinct traits found in peripheral isolated, minimally viable population ‘‘Primary Constituent Elements’’ section subpopulations may be crucial to the risks the extirpation or extinction of a of this proposed rule. We identified species, allowing adaptation in the face species as a result of harsh known or presumed spawning sites in of environmental change (Lesica and environmental conditions, catastrophic each of the seven river systems. Some Allendorf 1995, Allendorf et al. 1997). events, or genetic deterioration over spawning sites have been conclusively In light of these considerations, we several generations (Kautz and Cox identified; others are presumed due to determined that the inclusion of stocks 2000). To reduce the risk of extinction the presence of suitable habitat. We or subpopulations from both the eastern through these processes, it is important identified known or presumed sites and the western margins of the current to establish multiple protected used for resting or staging. We identified range were necessary to protect the subpopulations across the landscape areas where subadult and adult Gulf potential evolutionary importance of (Soule´ and Simberloff 1986, Wiens sturgeon occur during winter to feed. those subpopulations (Scudder 1989, 1996). These areas are primarily in the marine Lesica and Allendorf 1995, Young and Because of these considerations, we or estuarine environment; young-of-year Harig 2001). reached the conclusion that this and juveniles feed mostly in the riverine While telemetry data indicate that proposal should include critical habitat environment. As a component of the Gulf sturgeon from one genetically units within the major river systems that above identifications, we gathered all distinct drainage occasionally enter support the seven currently reproducing available data on locations and habitat another river and also mix during the subpopulations (FWS et al. 1995) and use of marked (tagged) fish. winter months in estuarine and marine associated marine habitats. These river To determine which areas should be habitats, a genetic analysis of tissue systems include (from west to east)—the proposed as critical habitat, we then samples concluded that Gulf sturgeon Pearl, Pascagoula, Escambia, Yellow/ evaluated where the necessary exhibit a strong natal river fidelity, with Blackwater, Choctawhatchee, constituent elements of Gulf sturgeon stocks exchanging less than one mature Apalachicola, and Suwannee Rivers. We habitat intersected with areas known to female per generation on the average believe that with proper protection and be used by both marked and unmarked (Waldman and Wirgin 1997). These low management, these units collectively fish. Detailed location data, where gene flow estimates strongly suggest that represent habitat necessary to provide available, is included with each natural recolonization of extirpated for the conservation of the species. The proposed unit description in the subpopulations of Gulf sturgeon would number, distribution, and range of Gulf ‘‘Critical Habitat Unit Descriptions’’ proceed slowly (Waldman and Wirgin sturgeon subpopulations included in section of this proposed rule. Because 1997). Semi-isolated subpopulations are these units is necessary to protect and most of the sturgeon species’ upstream more vulnerable to the effects of sustain this species’ genetic integrity movement is for spawning (Bane 1997; demographic and environmental and diversity and to provide a rescue J. Hightower, U.S. Geological Survey population fluctuations (Forney and effect, if needed. We believe that these (USGS)–Biological Resources Division, Gilpin 1989, Wahlberg et al. 1996). seven river systems, with their pers. comm. 2002), we have determined Gene flow estimates usually were associated estuarine and marine that the proposal should include areas higher between adjacent stocks, environments, represent habitat that is as far upstream as the furthest known or suggesting that migrants from semi- essential for the conservation of the Gulf presumed spawning site. Therefore, in isolated subpopulations are exchanged sturgeon. rivers where spawning sites have been chiefly with neighboring confirmed, the proposed units extend subpopulations (Waldman and Wirgin Assessing Specific Habitat Areas upstream to a geographically 1997). The loss of any intermediate Essential to the Conservation of Gulf identifiable point such as a river subpopulations by a single Sturgeon confluence above those sites. In areas environmental catastrophe could Once we determined that the proper where spawning sites are presumed but seriously limit a species’ recovery scale of the proposed critical habitat not confirmed, we have included river (Kautz and Cox 2000, Young and Harig designation should cover the area reaches that contain the primary

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constituent elements necessary for occurred, but no telemetry data exist to however, there is no recent documented spawning (e.g., appropriate substrate, identify the migratory path used (e.g., spawning and we have no evidence at and water quality and quantity), if those between the Pascagoula River and this time that these systems are essential areas occur within close proximity of Yellow River, the Pascagoula and to the conservation of the species. Gulf sturgeon historic and/or current Choctawhatchee River, and between Therefore, we have not proposed them sightings or captures, and if they are Suwanee River and Apalachicola River), as critical habitat. still accessible to sturgeon (e.g., not we have not proposed a migration route. The data available to us are blocked by dams). The proposed We then assessed the Gulf sturgeon’s insufficient to support a determination riverine critical habitat units include overall use of estuarine and marine that Lake Maurepas, Breton and areas that continue to offer at least waters and delineated specific critical Chandeleur Sounds, the Mississippi periodic passage of Gulf sturgeon to habitat boundaries. River Delta, St. Louis, Biloxi, Mobile, known and presumed spawning sites. Migration and feeding may take place Perdido, St. Andrews, St. Joseph, Successful reproduction and recent via the Gulf Intracoastal Waterway Ochlockonee, or Apalachee Bays are recruitment have been documented in (GIWW) in some of the proposed units. essential to the conservation of the each riverine unit by eggs, larvae, and/ Portions of the GIWW that consist species. Records within the majority of or juveniles, or by a mixed age structure. primarily of excavated land cuts and these bays are relatively scarce. We are proposing to protect spawning canals have been excluded from this Although some Gulf sturgeon from the habitats from a catastrophic occurrence designation because they were not seven subpopulations may occasionally by including both the main stem available historically, and, therefore, are use these bays for winter feeding, there spawning sites and at least one tributary not considered to be evolutionarily are insufficient data to support these site. significant. bays’ regular winter use or importance We have included riverine habitat This proposed designation includes a and no documented spawning. from the river mouth up to and significant portion, but not all, of the Therefore, we have not proposed these including spawning grounds in order to species’ historic range. The fourteen bays for designation as critical habitat. provide sufficient habitat necessary for proposed critical habitat units include The amount of research and status the other riverine life stages of Gulf riverine main stems and in some cases surveys conducted on many sturgeon while they reside in the tributaries, distributaries (a river branch subpopulations is limited. Because of riverine habitats. Habitat necessary for flowing away from the main stem in the the limited availability of data specific these life stages includes habitat for floodplain) and adjacent estuarine and to each river system and specific to the summer resting or staging areas, marine areas that contain one or more Gulf sturgeon’s use of the marine juvenile feeding, entire young-of-year of the primary constituent elements environment, we are aware that habitat life cycle, passage throughout the river, essential for the conservation of the Gulf other than that identified in this and passage into and out of estuarine sturgeon (see ‘‘Primary Constituent proposed rule may later be found to be habitat. All of the selected areas are Elements’’ section). The omission of essential to the conservation of Gulf known to be used by Gulf sturgeon for some historically occupied river sturgeon. To the extent feasible, we will some portion of their life cycle. drainages and estuarine and marine continue, with the assistance of other Subadult and adult sturgeon use areas from this proposed critical habitat Federal, State, and private researchers, estuarine and marine areas for feeding designation does not diminish their to conduct surveys, research, and and passage between river systems. individual or cumulative importance to conservation actions on the species and Designation of critical habitat units the species. Rather, it is our its habitat in areas designated and not encompassing estuaries and bays determination that the seven riverine designated as critical habitat. If adjacent to the riverine units discussed units with known spawning and seven additional information becomes above would protect unobstructed associated estuarine and marine units available on the species’ biology, passage of sturgeon from feeding areas included in this proposed rule include distribution, and threats, we will to spawning grounds. In evaluating the the habitats essential for the evaluate the need to designate estuarine and marine areas, we first conservation of the Gulf sturgeon. With additional critical habitat, delete or reviewed where Gulf sturgeon from the unobstructed passage in the estuarine reduce critical habitat, or refine the seven adjacent riverine units have been and marine habitat, the subpopulations boundaries of critical habitat. Gulf documented by telemetry relocations within the proposed designated critical sturgeon surviving in, or moving to and tag returns from incidental habitat units may eventually populate rivers that are not being proposed for captures. We also considered areas for presently unoccupied coastal river critical habitat will continue to receive which we have Gulf sturgeon sightings systems or augment adjacent surviving protection under the section 7 of the Act and targeted and incidental capture small subpopulations. jeopardy standard and the section 9 of records. When available, we reviewed Although the Mobile River Basin is the Act prohibitions on take (see habitat data (e.g., bathymetry, substrate the largest Gulf of Mexico drainage east ‘‘Critical Habitat’’ section). type, and benthic organisms) associated of the Mississippi River, it has been with these estuarine and marine systems extensively impounded and modified Primary Constituent Elements and compared these data with studies for navigation. Further, there have been In accordance with sections 3(5)(A)(i) pertaining to the habitat requirements relatively limited reports of captures and 4(b)(1)(A) of the Act and regulations and preferences of Gulf sturgeon. We and no evidence of reproduction of Gulf at 50 CFR 424.12, in determining which also evaluated data for evidence of sturgeon from that system for many areas to propose as critical habitat, we critical migratory pathways between the years. Gulf sturgeon have been reported are required to base critical habitat river systems and the adjacent bays and from other river systems. Some of these determinations on the best scientific Gulf of Mexico that allow Gulf sturgeon other systems historically supported a data available and to focus on those to travel to important feeding areas, as commercial fishery (e.g., Mobile River, physical and biological features well as allow for the occasional travel to Ochlockonee River) and some may (primary constituent elements) that are non-natal rivers for possible spawning support small reproducing essential to the conservation of the and genetic interchange. Where subpopulations (e.g., Techefuncte River, species and that may require special documented interchanges have Ochlockonee River, Mobile River); management considerations or

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protection. Such requirements include, behavior, growth, and survival of all life constituent elements that are found in but are not limited to, space for stages in the riverine environment, the unit. These activities include, but individual and population growth and including migration, breeding site are not limited to, those listed in the for normal behavior; food, water, air, selection, courtship, egg fertilization, ‘‘Effects of Critical Habitat’’ section as light, minerals, or other nutritional or resting, and staging, and for maintaining ‘‘Federal Actions That May Affect physiological requirements; cover or spawning sites in suitable condition for Critical Habitat and Require shelter; sites for breeding, reproduction, egg attachment, egg sheltering, resting, Consultation.’’ For example, riverine and rearing of offspring; and habitats and larval staging; spawning sites for Gulf sturgeon must that are protected from disturbance or (4) Water quality, including be relatively sediment-free for are representative of the historical temperature, salinity, pH, hardness, successful egg development and may geographical and ecological distribution turbidity, oxygen content, and other need best management practices of a species. chemical characteristics, necessary for implemented in the watershed upstream Based on the best available normal behavior, growth, and viability to prevent an excessive accumulation of information, primary constituent of all life stages; sediment in these areas. None of the elements essential for the conservation (5) Sediment quality, including proposed critical habitat units is of the Gulf sturgeon include the texture and other chemical presently under special management or following: characteristics, necessary for normal protection provided by a legally (1) Abundant prey items, such as behavior, growth, and viability of all life operative plan or agreement for the detritus, aquatic insects, worms, and/or stages; and conservation of the Gulf sturgeon. molluscs, within riverine habitats for (6) Safe and unobstructed migratory Therefore, we have determined that the larval and juvenile life stages; and pathways necessary for passage within proposed units may require special abundant prey items, such as and between riverine, estuarine, and management or protection. amphipods, lancelets, polychaetes, marine habitats. gastropods, ghost shrimp, isopods, Proposed Critical Habitat Designation Need for Special Management molluscs and/or crustaceans, within Consideration or Protection estuarine and marine habitats for The areas proposed for designation as subadult and adult life stages. An area designated as critical habitat critical habitat for the Gulf sturgeon (2) Riverine spawning sites with contains one or more of the primary provide one or more of the primary substrates suitable for egg deposition constituent elements that are essential constituent elements described above. and development, such as limestone to the conservation of the species (see Tables 1 and 2 summarize the location outcrops and cut limestone banks, ‘‘Primary Constituent Elements’’ and extent of proposed critical habitat. bedrock, large gravel or cobble beds, section), and that may require special All of the proposed areas require special marl, soapstone, or hard clay; management considerations or management considerations to ensure (3) A flow regime (i.e., the magnitude, protection. Various activities in or their contribution to the conservation of frequency, duration, seasonality, and adjacent to each of the critical habitat the Gulf sturgeon. The boundaries of rate-of-change of freshwater discharge units described in this proposed rule proposed critical habitat units are over time) necessary for normal may affect one or more of the primary described generally below.

TABLE 1.—APPROXIMATE LINEAR DISTANCE OF THE PROPOSED RIVERINE CRITICAL HABITAT UNITS FOR THE GULF STURGEON [Main stems are listed first and tributaries are indented]

River River Critical habitat unit river systems State kilometers miles

1. Pearl (East, West, and all distributaries) ...... Louisiana/Mississippi ...... 616 383 Bogue Chitto ...... 153 95 2. Pascagoula ...... Mississippi ...... 130 81 Leaf ...... 164 102 Bowie ...... 24 15 Chickasawhay ...... 232 144 Big Black Creek ...... 10 6 3. Escambia Florida/Alabama ...... 93 58 Conecuh ...... 128 79 Sepulga ...... 11 7 4. Yellow ...... Florida/Alabama ...... 136 84 Blackwater ...... 18 11 Shoal ...... 13 8 5. Choctawhatchee ...... Florida/Alabama ...... 224 139 Pea ...... 92 57 6. Apalachicola ...... Florida ...... 172 107 Brothers ...... 23 14 7. Suwannee ...... Florida ...... 286 178 Withlacoochee ...... 19 12

Total ...... 2,544 1,580

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TABLE 2.—APPROXIMATE AREA OF THE PROPOSED ESTUARINE AND MARINE CRITICAL HABITAT UNITS FOR THE GULF STURGEON

Critical habitat unit estuarine and marine systems State Kilometers2 Miles2

8. Lake Borgne ...... Louisiana/ ...... 718 277 Little Lake ...... Mississippi/ ...... 8 3 Lake Pontchartrain ...... Alabama ...... 763 295 Lake St. Catherine ...... 26 10 The Rigolets ...... 13 5 Mississippi Sound ...... 1,879 725 MS near shore Gulf ...... 160 62 9. Pensacola Bay ...... Florida ...... 381 147 10. Santa Rosa Sound ...... Florida ...... 102 39 11. Near shore Gulf of Mexico ...... Florida ...... 442 171 12. Choctawhatchee Bay ...... Florida ...... 321 124 13. Apalachicola Bay ...... Florida ...... 683 264 14. Suwannee Sound ...... Florida ...... 546 211

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

Critical Habitat Unit Descriptions waters upon which mariners shall The majority of recent Gulf sturgeon sightings in the Pearl River drainage The river reaches within units 1 to 7 comply with the International have occurred downstream of the Pools proposed as critical habitat lie within Regulations for Preventing Collisions at Bluff sill on the Pearl River, near the ordinary high water line. As defined Sea, 1972 and those waters upon which Bogalusa, Washington Parish, Louisiana, in 33 CFR 329.11, the ordinary high mariners shall comply with the Inland and downstream of the Bogue Chitto sill water line on non-tidal rivers is the line Navigation Rules (33 CFR 80.01). The on the Bogue Chitto River in St. on the shore established by the waters inside of these lines are Inland Tammany Parish, Louisiana. Between fluctuations of water and indicated by Rules waters and the waters outside the 1992 and 1996, 257 Gulf sturgeon were physical characteristics such as a clear, lines are COLREGS waters. These lines captured from the Pearl River system natural line impressed on the bank; are defined in 33 CFR 80, and have been (West Middle River, Bogue Chitto River, shelving; changes in the character of used for identification purposes to delineate boundary lines of the East Pearl River, and West Pearl River). soil; destruction of terrestrial vegetation; The subpopulation was estimated at 292 the presence of litter and debris; or estuarine and marine habitat Units 8, 9, 11, and 12. fish, of which only 2 to 3 percent were other appropriate means that consider adults (Morrow et al. 1998b). The the characteristics of the surrounding Unit 1. Pearl River System in St. annual mortality rate was calculated to areas. Tammany and Washington Parishes in be 25 percent. Preliminary results from The downstream limit of the riverine Louisiana and Walthall, Hancock, Pearl captures between 1992 and 2001 suggest units is the mouth of each river. The River, Marion, Lawrence, Simpson, a stable subpopulation of 430 fish, with mouth is defined as rkm 0 (rm 0). Copiah, Hinds, Rankin, and Pike approximately 300 adults (Rogillio et al. Although the interface of fresh and Counties in Mississippi in prep.). These Pearl River saltwater, referred to as the saltwater distributaries are used for migration to wedge, occurs within the lower-most Unit 1 includes the Pearl River main spawning grounds, summer resting reach of a river, for ease in delineating stem from the spillway of the Ross holes, and juvenile feeding. Gulf critical habitat units, we are defining the Barnett Dam, Hinds and Rankin sturgeon have been captured in all of boundary between the riverine and Counties, Mississippi, downstream to these distributaries and all are proposed estuarine units as rkm 0 (rm 0). where the main stem river drainage as critical habitat. Regulatory jurisdiction in coastal discharges at its mouth joining Lake The presence of juvenile Gulf areas extends to the line on the shore Borgne, Little Lake, or The Rigolets in sturgeon (1 to 4 years old) in the Pearl reached by the plane of the mean Hancock County, Mississippi, and St. River system indicates successful (average) high water (MHW) (33 CFR Tammany Parish, Louisiana. It includes spawning at some location in the Pearl 329.12(a)(2)). All bays and estuaries the main stems of the East Pearl River, River system. It is believed that the only within units 8 to 14, therefore, lie below West Pearl River, West Middle River, suitable habitat for spawning for the the MHW lines. Where precise Holmes Bayou, Wilson Slough, Pearl River subpopulation of Gulf determination of the actual location downstream to where these main stem sturgeon occurs above the sills on the becomes necessary, it must be river drainages discharge at the mouths Pearl River and the Bogue Chitto River established by survey with reference to of Lake Borgne, Little Lake, or The with access to these areas only during the available tidal datum, preferably Rigolets. Unit 1 also includes the Bogue high flows (Morrow et al. 1996, Morrow averaged over a period of 18.6 years. Chitto River main stem, a tributary of et al. 1998a). Bedrock and limestone Less precise methods, such as the Pearl River, from its confluence with outcropping that are typical of Gulf observation of the ‘‘apparent shoreline,’’ Lazy Creek just upstream of its crossing sturgeon spawning areas in other which is determined by reference to with Mississippi State Highway 570, systems do not occur here. However, physical markings, lines of vegetation, Pike County, Mississippi, downstream within the Pearl drainage, spawning may be used only where an estimate is to its confluence with the West Pearl areas likely include soapstone, hard needed of the line reached by the mean River, St. Tammany Parish, Louisiana. clay, gravel and rubble areas, and high water. The lateral extent of Unit 1 is the undercut banks adjacent to these The term 72 COLREGS is defined as ordinary high water line on each bank substrates (W. Slack pers. comm. 2001). demarcation lines which delineate those of the associated rivers and shorelines. Although the Pools Bluff sill blocks

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upstream movement on the Pearl River confluence with Black and Red Creeks, and juvenile feeding. We have included during periods of low water, potential Jackson County, Mississippi, to its the suitable spawning habitat located spawning sites have been identified confluence with the Pascagoula River, within .8 rkm (.5 rmi) upstream of upstream of the sill at various locations Jackson County, Mississippi. All of the Mississippi State Road 512 and have between Monticello, Lawrence County, main stem of the Pascagoula River from extended the proposed designation 9 Mississippi, and the Ross Barnett Dam its confluence with the Leaf and rkm (5.5 rmi) upstream to the spillway, Hinds and Rankin Counties, Chickasawhay Rivers, George County, confluence with Oaky Creek for ease of Mississippi (F. Parauka pers. comm. Mississippi, to the discharge of the East identification. 2002). Gulf sturgeon have also been and West Pascagoula Rivers into Gulf sturgeon use the West and East recently reported as far upstream as Pascagoula Bay, Jackson County, distributaries of the Pascagoula River Jackson, Hinds County, Mississippi Mississippi, is included. The lateral during spring and fall migrations (Ross (Morrow et al. 1996, Lorio 2000). The extent of Unit 2 is the ordinary high et al. 2001b). Summer resting areas have Ross Barnett Dam upstream of Jackson water line on each bank of the been consistently documented on Big prevents sturgeon movement further associated rivers and shorelines. Black Creek and on the Pascagoula River upstream at all flow conditions. Subpopulation estimates, calculated (Ross et al. 2001a and b). Confirmed use Identified suitable spawning habitat, from sturgeon captures in 1999 and for migration and/or summer resting presence of juvenile fish, and 2000 in the summer holding areas on areas and probable feeding use by documented adult captures support our the Pascagoula River, range between 162 juveniles support our inclusion of these inclusion of the Pearl River up to the and 216 individuals (Heise et al. 1999a, river reaches. Ross et al. 2001b). Due to the sampling spillway of the Ross Barnett Dam. Unit 3. Escambia River System in Santa The Bogue Chitto sill, located on the technique, these estimates are based Rosa and Escambia Counties, Florida Bogue Chitto River near its confluence primarily on large fish and do not and Escambia, Conecuh, and Covington with the Pearl River, also hinders account for juvenile or subadult fish (S. Counties, Alabama movement of Gulf sturgeon upstream of Ross, University of Southern the sill except during high water flows. Mississippi (USM), pers. comm. 2001). Unit 3 includes the Conecuh River Suitable spawning habitat occurs within Gulf sturgeon spawning on the Bowie main stem beginning just downstream of the Bogue Chitto upriver of the sill (F. River was confirmed via egg collection the spillway of Point A Dam, Covington Parauka pers. comm. 2002, W. Slack in 1999 (Slack et al. 1999, Heise et al. County, Alabama, downstream to the pers. comm. 2001) and juvenile, adult 1999a). This is the only confirmed Florida State line, where its name and subadult Gulf sturgeon have been spawning area in the Pascagoula River changes to the Escambia River, documented on the Bogue Chitto River drainage. Downstream, the Bowie River Escambia County, Alabama, and as far upstream as McComb, Pike is sometimes used as a summer holding Escambia and Santa Rosa Counties, County, Mississippi (D. Oge, area (Ross et al. 2001b). Gulf sturgeon Florida. It includes the entire main stem Department of Environmental Quality, have been documented using the area of the Escambia River downstream to its pers. comm. 2002; F. Parauka pers. above the known spawning habitat discharge into Escambia Bay and Macky comm. 2002; W. Slack pers. comm. (Reynolds 1993, W. Slack pers. comm. Bay, Escambia and Santa Rosa Counties, 2001). We, therefore, have proposed as 2002). Additional suitable spawning Florida. All of the distributaries of the critical habitat the main stem of the habitat has been identified in this Escambia River including White River, Bogue Chitto River upstream of Quins upstream reach (F. Parauka pers. comm. Little White River, Simpson River, and Bridge (Mississippi State Highway 570) 2002), and since Gulf sturgeon have Dead River, Santa Rosa County, Florida to its confluence with Lazy Creek. rarely been documented upstream of are included. The Sepulga River main spawning grounds, we have also stem from Alabama County Road 42, Unit 2. Pascagoula River System in included the 19 rkm (12 rmi) of river Conecuh and Escambia Counties, Forrest, Perry, Greene, George, Jackson, reach upstream of the confirmed Alabama, downstream to its confluence Clarke, Jones, and Wayne Counties, spawning grounds. Confirmed use for with the Conecuh River, Escambia Mississippi spawning and use as a summer holding County, Alabama, is also included. The Unit 2 includes all of the Pascagoula area support the inclusion of the Bowie lateral extent of Unit 3 is the ordinary River main stem and its distributaries, River as proposed critical habitat. high water line on each bank of the portions of the Bowie, Leaf, and Documented sightings of Gulf associated lakes, rivers and shorelines. Chickasawhay tributaries, and all of the sturgeon and identified suitable Sufficient data are not yet available to Big Black Creek tributary. It includes the spawning habitat upstream to estimate historic or current Bowie River main stem beginning at its Mississippi State Highway 588 subpopulation sizes of the Escambia confluence with Bowie Creek and (Reynolds 1993, W. Slack pers. comm. River drainage subpopulation. Okatoma Creek, Forrest County, 2002, F. Parauka pers. comm. 2002), Collection and tagging of Gulf sturgeon, Mississippi, downstream to its confirmed use as a migration corridor, monitoring, and eventual subpopulation confluence with the Leaf River, Forrest and confirmed use by juvenile Gulf estimates are in the initial phases on the County, Mississippi. The Leaf River sturgeon (W. Slack pers. comm. 2002) Escambia River in Florida and the main stem beginning from Mississippi support the inclusion of the Leaf River Conecuh River in Alabama. State Highway 588, Jones County, as proposed critical habitat. Suitable spawning habitat (Parauka Mississippi, downstream to its Documented sightings of Gulf and Giorgianni in prep.) and a reported confluence with the Chickasawhay sturgeon using the Chickasawhay River larval sighting (N. Craft, Department of River, George County, Mississippi is (Miranda and Jackson 1987, Reynolds Environmental Protection (DEP), pers. included. The main stem of the 1993, Ross et al. 2001b) upstream to comm. 2001), just below the Point A Chickasawhay River from the mouth of Quitman (Ross et al. 2001b), and the Dam (221 rkm (137 rmi) on the Conecuh Oaky Creek, Clarke County, Mississippi, presence of apparently suitable River support inclusion of critical downstream to its confluence with the spawning habitat at Quitman (F. habitat upstream to the Point A Dam. Leaf River, George County, Mississippi Parauka pers. comm. 2002), support the The Point A Dam prevents sturgeon is included. Unit 2 also includes Big inclusion of this river reach as proposed movement further upstream at all flow Black Creek main stem from its critical habitat for spawning, migration, conditions. In addition, spawning has

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been confirmed between rkm 161 and of 98 fish in the spring and the capture/ Unit 5. Choctawhatchee River System in 170 (rmi 100 and 105.6) (Craft et al. recapture of 94 fish that fall, the USGS Holmes, Washington, and Walton 2001) on the Conecuh River. The use of estimated the subpopulation to consist Counties, Florida and Dale, Coffee, the river main stem for spawning, adult of 580 Gulf sturgeon of 1 m (3.3 ft) or Geneva, and Houston Counties, resting areas, juvenile feeding and greater in size (M. Randall, USGS, pers. Alabama resting, and the use for migration to comm. 2001). This estimate excludes Unit 5 includes the Choctawhatchee these sites supports our inclusion of the fish younger than 3 to 4 years of age. River main stem from its confluence Escambia/Conecuh River main stem as with the west and east fork of the proposed critical habitat for the Five distinct limestone outcrops have been documented as possible spawning Choctawhatchee River, Dale County, Escambia River subpopulation of Gulf Alabama, downstream to its discharge at sturgeon. sites on the Yellow River, between rkm Choctawhatchee Bay, Walton County, Historic sightings reported from the 43 and 134 (rmi 26.7 and 83.3) (Parauka Florida. The distributaries discharging 1910s and 1920s, and as recently as and Giorgianni in prep.). Several sites 1991, have been documented in consist of brittle marl and limestone, into Choctawhatchee Bay known as Escambia County, Alabama, on the and others of porous limestone. The Mitchell River, Indian River, Cypress River, and Bells Leg are included. The Sepulga River (Reynolds 1993). Estes lowest downstream site (rkm 43 (rmi Boynton Cutoff, Washington County, (1991) describes the Sepulga as having 26.7)) is a primitive rock revetment, a smooth rock walls, and long pools with Florida, which joins the manmade structure with a fair amount Choctawhatchee River main stem, and stretches of rocky shoals and sandbars. of rock substrate (Craft et al. 2001). In We included the Sepulga River reach Holmes Creek, Washington County, recent years, Alabama State biologists Florida, are included. The section of upstream to Alabama County Road 42, have observed young-of-year Gulf Escambia County, Alabama, because it Holmes Creek from Boynton Cutoff to sturgeon near limestone outcrops 3.2 km the mouth of Holmes Creek, Washington has suitable spawning habitat and (2 mi) south of Alabama State Highway documented sightings. County, Florida, is included. The Pea 55 (136 rkm (84 rmi)) (Craft et al. 2001), We believe it is most likely that Gulf River main stem, a Choctawhatchee sturgeon use the Escambia River main which confirms that reproduction is River tributary, from the Elba Dam, stem and all the distributaries for occurring within this subpopulation. Coffee County, Alabama, to its exiting and entering the Escambia/ The river upstream of Alabama State confluence with the Choctawhatchee Conecuh River. Gulf sturgeon have been Highway 55 is shallow, sandy, and River, Geneva County, Alabama, is documented to use distributaries near creek-like and, therefore, not believed included. The lateral extent of Unit 5 is the river mouth within other systems suitable for spawning (M. Randall pers. the ordinary high water line on each (e.g., Suwannee, Pearl, and Pascagoula comm. 2001; F. Parauka pers.comm. bank of the associated rivers and River systems) for migration into and 2001; G. Morgan, Conecuh National shorelines. out of riverine habitat. We, therefore, Forest, pers. comm. 2001). Preliminary Preliminary estimates of the size of have included all distributaries on the surveys located four potential summer the Gulf sturgeon subpopulation in the Escambia River system (i.e., White resting areas on the Yellow River main Choctawhatchee River system are 2,000 River, Little White River, Simpson stem (Craft et al. 2001). Recent fish to 3,000 fish over 61 cm (24 inches (in)) River, and Dead River) in Unit 3. captures and the confirmation of total length (F. Parauka pers. comm. spawning at the furthest upstream 2001). Unit 4. Yellow River System in Santa Biologists have located Gulf sturgeon spawning habitat location near Alabama Rosa and Okaloosa Counties, Florida within .8 rkm (.5 rmi) downstream of State Highway 55 support our inclusion and Covington County, Alabama the Elba Dam, Coffee County, Alabama, Unit 4 includes the Yellow River of the Yellow River main stem to on the Pea River (Lorio 2000) and have main stem from Alabama State Highway Alabama State Highway 55 (136 rkm (84 identified suitable spawning habitat 55, Covington County, Alabama, rmi)) as proposed critical habitat for the from the Elba Dam to the Pea River downstream to its discharge at Yellow River subpopulation of Gulf mouth (Parauka and Giorgianni in prep., Blackwater Bay, Santa Rosa County, sturgeon. Zehfuss et al. in prep.). The Elba Dam Florida. All Yellow River distributaries The inclusion of the Shoal River, from prevents sturgeon movement further (including Weaver River and Skim Lake) the Yellow River confluence upstream upstream at all flow conditions. This discharging into Blackwater Bay are to the Florida Highway 85 bridge (13 river reach has one confirmed spawning included. The Shoal River main stem, a rkm (8 rmi)) , is supported as proposed site, and Gulf sturgeon often use the Yellow River tributary, from Florida critical habitat because it is a confirmed lower reach for summer resting (Fox et Highway 85, Okaloosa County, Florida, summer resting area (Lorio 2000). The al. 2000, Hightower et al. in press). to its confluence with the Yellow River, potential for distributaries Weaver River Suitable spawning and resting habitat, is included. The Blackwater River from and Skim Lake to be used for migration confirmed spawning, and young-of-year its confluence with Big Coldwater to and from the Yellow River system and juvenile feeding (F. Parauka pers. Creek, Santa Rosa County, Florida, (Craft et al. 2001) supports their comm. 2001) support inclusion of the Pea River reach as proposed critical downstream to its discharge into inclusion as proposed critical habitat. Blackwater Bay is included. Wright habitat. The current and historic use of deep Basin and Cooper Basin, Santa Rosa Five spawning sites and seven resting holes by Gulf sturgeon on the County, on the Blackwater River are areas have been identified on the included. The lateral extent of Unit 4 is Blackwater River main stem and Choctawhatchee River main stem the ordinary high water line on each between Wright Basin and Cooper Basin between the river mouth (0 rkm (0 rmi)) bank of the associated lakes, rivers and demonstrate the importance of this area and upstream to 150 rkm (93 rmi) shorelines. for summer resting and staging (Hightower et al. in press, Zehfuss et al. The USGS conducted a subpopulation (Reynolds 1993, Craft et al. 2001) and in prep.). Biologists have identified study in the Yellow River system during support its inclusion as proposed suitable spawning habitat (limestone the spring (May to July) and fall critical habitat for the Yellow River outcrops) periodically between 135 rkm (October) of 2001. Based on the capture subpopulation. (84 rmi) to the confluence of the West

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Fork Choctawhatchee River and East Apalachicola River downstream of Jim confluence with Long Branch Creek, Fork Choctawhatchee River (224 rkm Woodruff Lock and Dam, the summer Hamilton County, Florida, downstream (139 rmi)) (H. Blalock-Herod, FWS, pers. subpopulation of subadult and adult to the mouth of the Suwannee River. It comm. 2002; Parauka and Giorgianni in Gulf sturgeon was estimated to be includes all the Suwannee River prep.; Zehfuss et al. in prep.). Fox et al. between 270 and 321 individuals (FWS distributaries, including the East Pass, (2000) located a male at 150 rkm (93 1998, 1999). Seventy-one sturgeon were West Pass, Wadley Pass, and Alligator rmi) and another male in spawning collected in the upper Brothers River, Pass, Dixie and Levy Counties, Florida, condition near Newton (214 rkm (133 upstream of the Brickyard Cutoff and to their discharge into the Suwannee rmi)) on the Choctawhatchee River, 8 downstream of Bearman Creek between Sound or the Gulf of Mexico. The rkm (5 rmi) downstream of the June and September 1999 (FWS 1999, Withlacoochee River main stem from confluence of the West Fork Lorio 2000). Gulf sturgeon captured on Florida State Road 6, Madison and Choctawhatchee River and East Fork the Brothers River have not been Hamilton Counties, Florida, to its Choctawhatchee River. Since Gulf included in the Apalachicola River confluence with the Suwannee River is sturgeon rarely occur upstream of subpopulation size estimate although included. The lateral extent of Unit 7 is spawning grounds, we have included up they are believed to be part of the the ordinary high water line on each to the confluence of West Fork subpopulation. bank of the associated rivers and Choctawhatchee River and East Fork The Gulf sturgeon became restricted shorelines. Choctawhatchee River for ease of to the portion of the Apalachicola River The Suwannee River supports the identification and with the probability downstream of the Jim Woodruff Lock largest Gulf sturgeon subpopulation of unconfirmed spawning grounds. and Dam upon the construction of the among the coastal rivers of the Gulf of Suitable habitat, confirmed spawning, dam in the 1950s. Wooley et al. (1982) Mexico (Huff 1975, Gilbert 1992). Sulak and young-of-year and juvenile feeding documented the capture of two Gulf and Clugston (1999) reported 5,344 support the inclusion of the sturgeon larvae on the Apalachicola uniquely tagged Suwannee River Choctawhatchee River main stem as River just downstream of the Jim sturgeons from 1986 to 1998. Multiple proposed critical habitat. Woodruff Lock and Dam, thereby models using various age classes have No sturgeon have been documented confirming successful spawning up to been used to estimate the subpopulation within Holmes Creek, except for the the dam. Resting aggregations are often size of Gulf sturgeon on the Suwannee section that connects the seen at the base of the dam. Seven River system. Chapman et al. (1997) Choctawhatchee River and Boynton potential spawning sites have been estimated the subpopulation at 3,152 Cutoff, north and south. We have identified in the upper Apalachicola fish greater than age 6. Sulak and included this river section of Holmes River between Highway 20 and the Jim Clugston’s (1999) estimate was 7,650 Creek because it acts as part of the Woodruff Lock and Dam (120 to 171 km individuals greater than 61 cm (24 in) Choctawhatchee River main stem. In (76 to 106 rmi)) (Parauka and Giorgianni total length and older than age 2. Pine 1994, Gulf sturgeon were captured in prep.). Suitable spawning and resting et al. (2001) estimated the Suwannee during March and April at the mouths habitat, confirmed spawning, and River subpopulation at 5,500 of Indian River, Cypress River, and Bells young-of-year and juvenile feeding individuals ages 2 to 25. Based on Leg, indicating that sturgeon probably support inclusion of the Apalachicola intensive egg sampling efforts use these distributaries as migratory River as proposed critical habitat. conducted between 1993 and 1998, corridors to and from the The entire main stem of the Brothers Sulak and Clugston (1999) estimated Choctawhatchee River main stem. All River, a major tributary of the that 30 to 90 female fish spawn per year. distributaries, including the Indian Apalachicola River, is also included as Marchant and Shutters (1996) River, Cypress River, Bells Leg, and proposed critical habitat. Spawning has collected two Gulf sturgeon eggs in Mitchell River, are included as not been documented within this April 1993 on the Suwannee River. proposed critical habitat. tributary, but an important resting area These were the first eggs reported from is located in the uppermost section of the wild for Gulf sturgeon. Between Unit 6. Apalachicola River System in the Brothers River between Brickyard 1993 and 1998, three spawning sites Franklin, Gulf, Liberty, Calhoun, Cutoff and Bearman Creek (FWS 1999, were confirmed with the collection of Jackson, and Gadsen Counties, Florida Lorio 2000). Sturgeon use the lower Gulf sturgeon eggs on artificial substrate Unit 6 includes the Apalachicola Brothers River as a resting and possible samplers (Marchant and Shutters 1996, River mainstem, beginning from the Jim osmoregulation area (staging) before Sulak and Clugston 1999). Young-of- Woodruff Lock and Dam, Gadsden and migrating into the estuarine and marine year have been documented using Jackson Counties, Florida, downstream habitats for winter feeding (Wooley and between rkm 10 to 237 (rmi 6.2 to 147.3) to its discharge at East Bay or Crateau 1985). The Apalachicola River on the Suwannee River main stem (Carr Apalachicola Bay, Franklin County, distributaries, including the East River, et al. 1996a, Sulak and Clugston 1999). Florida. All Apalachicola River St. Marks River and Little St. Marks The young-of-year sturgeon located at distributaries, including the East River, River, are included, based on rkm 237 (rmi 147.3), north of Interstate Little St. Marks River, St. Marks River, information derived from other systems. 75, by Sulak and Clugston (1999) was Franklin County, Florida, to their Gulf sturgeon tend to use more than just likely spawned in the river as far discharge into East Bay and/or the main stem for migration into and out upstream as Big Shoals and was Apalachicola Bay are included. The of the river systems (e.g., Suwannee, captured on its way downstream (M. entire main stem of the Brothers River, Choctawhatchee, and Pearl River Randall pers. comm. 2002). It is Franklin and Gulf Counties, Florida, a systems). believed that the farthest upstream that tributary of the Apalachicola River, is sturgeon spawn during high water is Big included. The lateral extent of Unit 6 is Unit 7. Suwannee River System in Shoals, near White Springs, Hamilton the ordinary high water line on each Hamilton, Suwannee, Madison, and Columbia Counties, Florida, but bank of the associated rivers and Lafayette, Gilchrist, Levy, Dixie, and adult sturgeon are probably unable to shorelines. Columbia Counties, Florida move upstream of Big Shoals (Huff Based on mark/recapture studies Unit 7 includes the Suwannee River 1975; K. Sulak, USGS, pers. comm. conducted in 1998 and 1999 in the main stem, beginning from its 2002; M. Randall pers. comm. 2002).

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Suitable spawning habitat has been habitat follows the shorelines around barrier islands and within the passes identified upstream to Big Shoals (Huff the perimeters of each included lake. (Davis et al. 1970, Reynolds 1993, 1975; H. Blalock-Herod, FWS, pers. The Mississippi Sound includes Rogillio 1993, Morrow et al. 1998a, Ross comm. 2002). Foster and Clugston adjacent open bays including et al. 2001a, Rogillio et al. in prep., F. (1997) located five major resting areas Pascagoula Bay, Point aux Chenes Bay, Parauka pers. comm. 2002). Substrate in throughout the Suwannee River. A deep Grand Bay, Sandy Bay, and barrier these areas ranges from sand to silt, all river bend and a shallow sandy section island passes, including Ship Island of which contain known Gulf sturgeon were characteristic features of the Pass, Dog Keys Pass, Horn Island Pass, prey items (Abele 1986, American resting areas (Foster and Clugston 1997). and Petit Bois Pass. The northern Fisheries Society 1989, Menzel, 1971). Confirmed use for spawning, identified boundary of the Mississippi Sound is The Rigolets is a 11.3 km (7 mi) long and probable spawning habitat the shoreline of the mainland between and about 0.6 km (0.4 mi) wide passage upstream to Big Shoals, young-of year Heron Bay Point, Mississippi and Point connecting Lake Pontchartrain and Lake and juvenile feeding, and summer aux Pins, Alabama. Proposed critical Borgne (U.S. Department of Commerce resting support the inclusion of the habitat excludes St. Louis Bay, north of (USDOC) 2002). This brackish water Suwannee River as proposed critical the railroad bridge across its mouth; area is used by adult Gulf sturgeon as a habitat. For ease of identification, the Biloxi Bay, north of the U.S. Highway staging area for osmoregulation and for Suwannee River has been included 90 bridge; and Back Bay of Biloxi. The passage to and from wintering areas upstream of Big Shoals .8 rkm (.5 rmi) southern boundary follows along the (Rogillio et al. in prep.). Lake St. to its confluence with Long Branch broken shoreline of Lake Borgne created Catherine is a relatively shallow lake Creek. by low swampy islands from with depths averaging approximately Adult Gulf sturgeon sightings and Malheureux Point to Isle au Pitre. From 1.2 m (4 ft), connected to The Rigolets suitable spawning habitat on the lower the northeast point of Isle au Pitre, the by Sawmill Pass. Bottom sediments in Withlacoochee River near Florida State boundary continues in a straight north- Sawmill Pass are primarily silt, while Road 141, Hamilton and Madison northeast line to the point 1 nautical Lake Catherine’s bottom is composed of Counties, Florida, support the inclusion mile (nm) (1.9 km) seaward of the silt and sand (Barett 1971). Incidental of this area as proposed critical habitat. western most extremity of Cat Island catches of Gulf sturgeon are We have included shoals (5 rkm (3 rmi)) (30°13′N, 89°10′W). The southern documented from Lake St. Catherine located just upstream of where sturgeon boundary continues 1 nm (1.9 km) and Sawmill Pass (Reynolds 1993; H. have been observed as possible offshore of the barrier islands and Rogillio, Louisiana Department of spawning habitat, and have stopped at offshore of the 72 COLREGS lines at Wildlife and Fisheries, pers. comm. Florida State Road 6 (14 rkm (9 rmi)), barrier island passes (defined at 33 CFR 2002). Based on the proximity of Little upstream from the shoals, for ease of 80.815(c), (d) and (e)) to the eastern Lake, Lake St Catherine, and Sawmill identification. boundary. Between Cat Island and Ship Pass to The Rigolets and Pearl River, we The Suwannee River branches near its Island there is no 72 COLREGS line. We believe these areas are also used for mouth into the East Pass and West Pass. therefore, have defined that section of staging and feeding and, therefore, are Gulf sturgeon adults use the East Pass the southern boundary as 1 nm (1.9 km) including them with the Rigolets as and West Pass for emigration and offshore of a straight line drawn from proposed critical habitat. immigration (Mason and Clugston 1993, the southern tip of Cat Island to the Rogillio (1990) and Morrow et al. Edwards et al. in prep.). The West pass western tip of Ship Island. The eastern (1996) indicated that Lake Pontchartrain is divided into two primary channels— boundary is the line of longitude and Lake Borgne were used by Gulf Wadley Pass, connected to the Gulf of 88°18.8′W from its intersection with the sturgeon as wintering habitat, with most Mexico by a straight dredged channel shore (Point aux Pins) to its intersection catches during late September through across the northern portion of the with the southern boundary. The lateral March. Lake Pontchartrain is 57.9 km Sound, and Alligator Pass, used by extent of Unit 8 is the MHW line on (36 mi) long, 35.4 km (22 mi) wide at juveniles (Huff 1975), connected to the each shoreline of the included water its widest point, and 3 to 4.9 m (10 to Gulf of Mexico by an undredged, natural bodies or the entrance to rivers, bayous, 16 ft) deep (USDOC 2002). Morrow et al. channel. Confirmed use of the East Pass, and creeks. (1996) documented Gulf sturgeon from West Pass, and Alligator Pass, and The Pearl River and its distributaries the Pearl River system using Lake probable use of the Wadley Pass by flow into The Rigolets, Little Lake, and Pontchartrain (verified by tags) and adult and juvenile Gulf sturgeon for Lake Borgne, the western extension of summarized existing Gulf sturgeon migration and feeding support the Mississippi Sound. The Rigolets records, which indicated greater use of inclusion of all distributaries of the connect Lake Pontchartrain and Lake St. the eastern half of Lake Pontchartrain. Suwannee River as proposed critical Catherine with Little Lake and Lake Although Rogillio et al. (in prep.) did habitat. Borgne. The Pascagoula River and its not relocate any of their sonic tagged distributaries flow into Pascagoula Bay adult Gulf sturgeon in Lake Unit 8. Lake Pontchartrain, Lake St. and Mississippi Sound. Pontchartrain, H. Rogillio (pers. comm. Catherine, The Rigolets, Little Lake, This proposed unit provides juvenile, 2002) believes the eastern part of this Lake Borgne, and Mississippi Sound in subadult and adult feeding, resting, and lake to be an important winter habitat Jefferson, Orleans, St. Tammany, and passage habitat for Gulf sturgeon from for juveniles and subadults based on St. Bernard Parish, Louisiana, Hancock, the Pascagoula and the Pearl River previous records. We believe that Gulf Jackson, and Harrison Counties in subpopulations. One or both of these sturgeon feed in Lake Pontchartrain Mississippi, and in Mobile County, subpopulations have been documented during the winter. The Lake Alabama by tagging data, historic sightings, and Pontchartrain Causeway, twin toll Unit 8 encompasses Lake incidental captures as using Pascagoula highway bridges, extends 33.6 km (20.9 Pontchartrain east of the Lake Bay, The Rigolets, the eastern half of mi) across Lake Pontchartrain from Pontchartrain Causeway, all of Little Lake Pontchartrain, Little Lake, Lake St. Indian Beach on the south shore to Lake, The Rigolets, Lake St. Catherine, Catherine, Lake Borgne, Mississippi Lewisburg and Mandeville on the north Lake Borgne, including Heron Bay, and Sound, within 1 nm (1.9 km) of the shore. Sediment data from Lake the Mississippi Sound. Proposed critical nearshore Gulf of Mexico adjacent to the Pontchartrain indicate sediments have a

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greater sand content east of the River subpopulation have been Florida Department of Environment causeway (Barret 1976, Manheim et al. documented scattered between Cat Protection (FDEP) have conducted 2002). Most records from Lake Island, Ship Island, Horn Island, and tracking studies in the Pensacola Bay Pontchartrain are located east of the east of Petit Bois Islands to the Alabama system to observe Gulf sturgeon winter causeway, with concentrations near State line (Rogillio et al. in prep.). Gulf migrations. They have identified Bayou Lacombe and Goose Point, both sturgeon have also been documented specific areas in the bays where on the eastern north shore (Reynolds within 1 nm (1.9 km) off the barrier Escambia River and Yellow River Gulf 1993, Morrow et al. 1996). Gulf sturgeon islands of Mississippi Sound. We, sturgeon collect, or migrate through, have also been documented west of the therefore, have included 1 nm (1.9 km) during the fall and winter season. These causeway, generally near the mouths of offshore of the barrier islands of studies also identified two main habitat small river systems (Davis 1970). We Mississippi Sound. Habitat used by Gulf types where Gulf sturgeon concentrate have excluded the western half of Lake sturgeon in the vicinity of the barrier during winter months. Movement is Pontchartrain, however, because we islands is 1.9 to 5.9 m (6.2 to 19.4 ft) generally along the shoreline area of believe that the sturgeon using these deep (average 4.2 m (13.8 ft)), with clean Pensacola Bay. Gulf sturgeon showed a areas are coming from these western sand substrata (Heise et al. 1999b, Ross preference for several areas in the bay, tributaries and not the Pearl River. et al. 2001a, Rogillio et al. in prep.). including Redfish Point, Fort Dickens, Lake Pontchartrain connects by The Preliminary data from substrate samples and Escribano Point, near Catfish Basin Rigolets with Lake Borgne. Lake Borgne, taken in the barrier island areas indicate (FWS 1998, Craft et al. 2001). Sandy the western extension of Mississippi that all samples contained lancelets shoal areas, located along the south and Sound, is partly separated from (Ross et al. 2001a). Inshore locations east side of Garcon Point, south shore of Mississippi Sound by Grassy Island, where Gulf sturgeon were located (Deer East Bay (Redfish Point area) and near Half Moon (Grand) Island and Le Petit Island, Round Island) were 1.9 to 2.8 m Fair Point, appear to be commonly used, Pass Island. Lake Borgne is (6.2 to 9.2 ft) deep and all had mud especially in the fall and early spring. approximately 14.3 km (23 mi) in (mostly silt and clay) substrata (Heise et During midwinter, common areas are in length, 3 to 6 km (5 to 10 mi) in width al. 1999b) typical of substrates deep holes located north of the barrier and 1.8 to 3 m (6 to 10 ft) in depth supporting known Gulf sturgeon prey. island at Ft. Pickens, south of the (USDOC 2002). Most of Lake Borgne Pensacola Naval Air Station, and at the Unit 9. Pensacola Bay System in sediment is clay and silt (Barett 1971). entrance of Pensacola Pass. The depth Escambia and Santa Rosa Counties, Many Gulf sturgeon were anecdotally in these areas ranges from 6 to 12.1 m Florida reported as taken incidentally in shrimp (20 to 40 ft). Other areas where tagged trawls in Lake Borgne 0.6 to 1.2 km (1 Unit 9 includes Pensacola Bay and its fish were frequently located include to 2 mi) south of the Pearl River adjacent main bays and coves. These Escribano Point, near Catfish Basin, and between August and October from the include Big Lagoon, Escambia Bay, East the mouth of the Yellow River. Previous 1950s through the 1980s (Reynolds Bay, Blackwater Bay, Bayou Grande, incidental captures of Gulf sturgeon 1993). There are twenty-two additional Macky Bay, Saultsmar Cove, Bass Hole have been recorded in Pensacola Bay, records of Gulf sturgeon in Lake Borgne Cove, and Catfish Basin. All other bays, Big Lagoon, and Bayou Grande (D. Walther, FWS, pers. comm. 2002). bayous, creeks, and rivers are excluded (Reynolds 1993, Lorio 2000). Known locations are spread out around at their mouths. The western boundary the perimeter of the Lake, including at is the Florida State Highway 292 Bridge Unit 10. Santa Rosa Sound in Escambia, the mouth of The Rigolets, Violet Canal, crossing Big Lagoon to Perdido Key. The Santa Rosa, and Okaloosa Counties, Bayou Bienvenue, Polebe, Alligator southern boundary is the 72 COLREGS Florida Point, and at Half Moon Island line between Perdido Key and Santa Unit 10 includes the Santa Rosa (Reynolds 1993). We are proposing to Rosa Island (defined at 33 CFR 80.810 Sound, bounded on the west by the include all of Lake Borgne as critical (g)). The eastern boundary is the Florida Florida State Highway 399 bridge in habitat. State Highway 399 Bridge at Gulf Gulf Breeze, Florida. The eastern The Mississippi Sound is separated Breeze, Florida. The lateral extent of boundary is the U.S. Highway 98 bridge from the Gulf of Mexico by a chain of Unit 9 is the MHW line on each in Fort Walton Beach, Florida. The barrier islands, including Cat, Ship, shoreline of the included water bodies. northern and southern boundaries of Horn, and Petit Bois Islands. Natural The Pensacola Bay system includes Unit 10 are formed by the shorelines to depths of 3.7–5.5 m (12 to 18 ft) are five interconnected bays, including the MHW line or by the entrance to found throughout the Sound and a Escambia Bay, Pensacola Bay, rivers, bayous, and creeks. channel 3.7 m (12 ft) deep has been Blackwater Bay, East Bay, and the Santa The Santa Rosa Sound is a lagoon dredged where necessary from Mobile Rosa Sound. The Santa Rosa Sound is between the mainland and Santa Rosa Bay to New Orleans (USDOC 2001). addressed separately in proposed unit Island that connects Pensacola Bay in Incidental captures and recent studies 10. The Escambia River and its the west with Choctawhatchee Bay in confirm that both Pearl River and distributaries (Little White River, Dead the east. The Sound extends Pascagoula River adult Gulf sturgeon River, and Simpson River) empty into approximately 57.9 km (35.9 mi) along winter in the Mississippi Sound, Escambia Bay, including Bass Hole an east-west orientation, varying in particularly around barrier islands and Cove, Saultsmar Cove, and Macky Bay. width between 0.32 and 3.5 km (0.2 to barrier islands passes (Reynolds 1993, The Yellow River empties into 2.2 mi) (FDEP 1993). The Intracoastal Ross et al. 2001a, Rogillio et al. in Blackwater Bay. The entire system Waterway transects the sound. The prep.). Pascagoula Bay is adjacent to the discharges into the Gulf of Mexico, Santa Rosa Sound is proposed as critical Mississippi Sound. Gulf sturgeon primarily through a narrow pass at the habitat because we believe it provides exiting the Pascagoula River move both mouth of Pensacola Bay. one continuous migratory pathway east and west, with telemetry recoveries The Pensacola Bay system provides between Choctawhatchee Bay, as far east as Dauphin Island and as far winter feeding and migration habitat for Pensacola Bay, and the Gulf of Mexico west as Cat Island and the entrance to Gulf sturgeon from the Escambia River for feeding and genetic interchange. Lake Pontchartrain, Louisiana (Ross et and Yellow River subpopulations. Over Within the last 3,000 years, periodic al. 2001a). Gulf sturgeon from the Pearl the past four years, researchers of the shoaling closed the opening of

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Choctawhatchee Bay to the Gulf of migrations in the Gulf of Mexico. Due to Choctawhatchee Bay provides Mexico. For many years, the Santa Rosa a design flaw, errors in attachment, or important habitat for maintaining the Sound provided the only way for sturgeon’s ability to successfully knock health of subadult and adult Gulf Choctawhatchee River Gulf sturgeon to the tags off, the tags failed to report sturgeon as evidenced by a large number migrate to the Gulf of Mexico (Wakeford reliable data with only two exceptions. of Gulf sturgeon overwintering in the 2001). Recent locations of subadult and One of the Choctawhatchee-tagged Gulf system (FWS 1997, 1998; Parauka et al. adult Gulf sturgeon within the Santa sturgeon was located in Hogtown Bayou in press). The Choctawhatchee Bay Rosa Sound confirm its present use by in Choctawhatchee Bay. This provided offers a feeding area for both subadults the Choctawhatchee River no new information, as we already knew and adults (FWS 1998, Fox et al. in subpopulations (F. Parauka pers. comm. that some adult Gulf sturgeon press). Tagged subadults showed a 2002, Fox et al. in press). The Escambia overwinter in this bayou. The other preference for shoreline habitats which and Yellow River subpopulations may operating tag, however, was one that are predominated by sandy substrates, also use this area due to its close had been attached to a Yellow River low salinity and water depths less than proximity. Gulf sturgeon have been Gulf sturgeon. Sonic tracking in the 3 m (10 ft) (FWS 1997, 1998; Parauka et located mid-channel and in shoreline vicinity of that Yellow River Gulf al. in press). Most adult Gulf sturgeon areas in 2 to 5.2 m (6.6 to 17.1 ft) depths sturgeon led to the relocation of other were found in shallow water (2 to 4 m and sand substrate. The approximate sonic tagged Gulf sturgeon. Sonic-tagged (6.6 to 13.1 ft)) with predominantly length of the proposed critical habitat individuals from three different (greater than 80 percent) sandy unit is 52.8 km (33 miles). Bridges were subpopulations (Choctawhatchee, sediment (Fox et al. in press). Ghost chosen as the eastern and western Yellow, and Apalachicola Rivers) were shrimp, a component of the sturgeon boundaries for ease in identification. relocated on multiple occasions in close diet, are typically found in substrates Any portion of the sound not included proximity to one another, suggesting an ranging from sandy mud to organic silty in this unit is captured by the adjacent important feeding area just offshore of sand (Felder and Lovett 1989), and their critical habitat units. Mexico Beach, Crooked Island East, and densities were greatest nearshore along Crooked Island West over sand the middle and eastern portions of the Unit 11. Florida Nearshore Gulf of substrate. The data suggest that Gulf Choctawhatchee Bay (Heard et al. 2000), Mexico Unit in Escambia, Santa Rosa, sturgeon from the Yellow River, the area frequented by the Gulf sturgeon Okaloosa, Walton, Bay, and Gulf Choctawhatchee River, and (Fox et al. in press). We include the Counties in Florida Apalachicola River remain within 1.6 deeper central portion of the Bay in Unit Unit 11 includes a portion of the Gulf km (1 mi) of the coastline between these 12 as proposed critical habitat because of Mexico as defined by the following river systems (F. Parauka pers. comm. the Gulf sturgeon are known to use the boundaries. The western boundary is 2002). Examination of bathymetry data deeper bay waters for movement the line of longitude 87°20.0′ W along the Gulf of Mexico coastline between the shoreline areas (Fox et al. (approximately 1 nm (1.9 km) west of between the Pensacola Bay and in press). Pensacola Pass) from its intersection Apalachicola Bay reveals that depths of Unit 13. Apalachicola Bay in Gulf and with the shore to its intersection with less than 6 m (19.7 ft), within which Franklin County, Florida the southern boundary. The northern Gulf sturgeon are generally found, are boundary is the MHW of the mainland all contained within 1 nm (1.9 km) from Unit 13 includes the main body of shoreline and the 72 COLREGS lines at shore. Gulf nearshore substrate contains Apalachicola Bay and its adjacent passes as defined at 30 CFR 80.810 (a– unconsolidated, fine-medium grain sounds, bays, and the nearshore waters g). The southern boundary is 1 nm (1.9 sands which support crustaceans such of the Gulf of Mexico. These consist of km) offshore of the northern boundary. as mole crabs, sand fleas, various St. Vincent Sound, including Indian The eastern boundary is the line of amphipod species, and lancelets Lagoon; Apalachicola Bay including longitude 85°17.0′ W from its (Menzel 1971, Abele 1986, American Horseshoe Cove and All Tides Cove; intersection with the shore (near Money Fisheries Society 1989). Based on their East Bay including Little Bay and Big Bayou between Cape San Blas and direction of movement over time, it Bay; and St George Sound, including Indian Peninsula) to its intersection appeared these Gulf sturgeon were Rattlesnake Cove and East Cove. Barrier with the southern boundary. feeding in the nearshore Gulf of Mexico Island passes (Indian Pass, West Pass, Unit 11 includes winter feeding and on route to their natal rivers. Given this and East Pass) are also included. Sike’s migration habitat for Gulf sturgeon from information we are including the cut is excluded from the lighted buoys the Yellow River, Choctawhatchee nearshore (up to 1 nm (1.9 km)) Gulf of on the Gulf of Mexico side to the day River, and Apalachicola River Mexico waters between Pensacola and boards on the bay side. The southern subpopulations. Telemetry relocation Apalachicola Bays. boundary includes water extending into data suggest that these subpopulations the Gulf of Mexico 1 nm (1.9 km) from feed in nearshore Gulf of Mexico waters Unit 12. Choctawhatchee Bay in the MHW line of the barrier islands and between their natal river systems (Fox et Okaloosa and Walton Counties, Florida from 72 COLREGS lines between the al. in press, F. Parauka pers. comm. Unit 12 includes the main body of barrier islands (defined at 33 CFR 2002). Gulf sturgeon from the Choctawhatchee Bay, Hogtown Bayou, 80.805(e–h)). The western boundary is Choctawhatchee River subpopulation Jolly Bay, Bunker Cove, and Grassy the line of longitude 85°17.0′W from its have been documented both east and Cove. All other bayous, creeks, and intersection with the shore (near Money west of Choctawhatchee Bay (F. Parauka rivers are excluded at their mouths/ Bayou between Cape San Blas and pers. comm. 2002, Fox et al. in press). entrances. The western boundary is the Indian Peninsula) to its intersection In the winter of 2001–2002, the USGS U.S. Highway 98 bridge at Fort Walton with the southern boundary. The and FWS attached pop-up satellite tags Beach, Florida. The southern boundary eastern boundary is formed by a straight to 20 Gulf sturgeon (12 from the is the 72 COLREGS line across East line drawn from the shoreline of Lanark Suwannee River, 4 from the (Destin) Pass as defined at 33 CFR Village at 29°53.1′N, 84°35.0′W to a Choctawhatchee River, 2 from the 80.810(f). The lateral extent of Unit 12 point that is 1 nm (1.9 km) offshore from Apalachicola, and 2 from the Yellow is the MHW line on each shoreline of the northeastern extremity of Dog Island River) to investigate winter feeding the included water bodies. at 29°49.6′N, 84°33.2′W. The lateral

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extent of Unit 13 is the MHW line on commercial shrimp fishermen provided Shallow waters are not confined to the each shoreline of the included water anecdotal information that he and other nearshore environment, and depths less bodies or the entrance of excluded shrimp fishermen, had caught hundreds than 6 m (19.7 ft) extend 9 to 10 mi rivers, bayous, and creeks. of Gulf sturgeon, with estimated weights (14.5 to 16.1 km) off the coastline. The Apalachicola River empties into generally between 50 to 60 lbs (22.7 to Telemetry tracking data confirm that Apalachicola Bay near Little Bay and 27.2 kg), in the same location, each subadult and adult Gulf sturgeon leave Big Bay. The Apalachicola Bay system, spring (April, May and June), for the the river during October and November a highly productive lagoon-and-barrier- past thirty years (1962 to 1992) (F. and enter Suwannee Sound and the island complex, encompasses 54,910 Parauka pers. comm. 2002). The nearshore Gulf of Mexico (Carr et al. hectares (549 km2) and consists of the fishermen described the location as 1996b, Edwards et al. in prep.). Tracked bay proper, East Bay, St. George Sound, south of St. George Island, within a few and relocated Gulf sturgeon move Indian Lagoon, and St. Vincent Sound hundred yards of the beach. He slowly and remained offshore of (Wakeford 2001). It is relatively shallow, described the areas as adjacent to a Suwannee Sound in nearby shallow averaging 2 to 3 m (6.6 to 9.8 ft) in depth shoal extending approximately 3.2 km (less than 6 m (19.7 ft)) marine/estuarine (Livingston 1983). The largest benthic (2 mi) offshore. Examination of habitats for a period of two months, habitat type found in Apalachicola Bay bathymetric data shows that there are until at least mid or late December. system is soft sediment, comprising several shoals in that general vicinity. Overall movement patterns are approximately 70 percent of the Since we are unable to confirm the punctuated by periods of slow estuarine area (Livingston 1984). Its specific location of the shoaled area movement within small areas, composition of sand, clay, and silt described by this fisherman, we propose suggesting feeding (Edwards et al. in varies considerably depending on the to extend this proposed critical habitat prep.). Mason and Clugston (1993) location in the bay. The Apalachicola unit only 1 nm (1.9 km) offshore of the found large, immigrating Suwannee Bay connects with the Gulf of Mexico barrier islands bordering Apalachicola River Gulf sturgeon fed on nearshore through several passes, including Indian Bay and Cape San Blas, a distance for coastal shelf organisms lancelets Pass, West Pass, East Pass, and Sike’s which we have supporting telemetry (Branchiostoma caribaeum), cut, a man-made opening established in data. In doing so, we will still capture brachiopods (Glottida pyramida), the mid 1950s (Odenkirk 1989). some of the shallow shoals extending unidentified pelagic shrimps, Unit 13 provides winter feeding south of the barrier islands in this area, polychaetes, unidentified marine migration habitat for the Apalachicola which we believe provide important molluscs, starfish and sea cucumbers. River Gulf sturgeon subpopulation. Gulf feeding substrate. Carr et al. (1996b) found that adult Gulf sturgeon have been documented by sturgeon feed primarily on brachiopods sightings, incidental captures, and Unit 14. Suwannee Sound in Dixie and and ghost shrimp, before entering the telemetry studies throughout Levy Counties, Florida river. The consumption of brachiopods Apalachicola Bay, East Bay, St. George Unit 14 includes Suwannee Sound as a primary Gulf sturgeon food source Sound, St. Vincent Sound, and Indian and a portion of adjacent Gulf of Mexico is currently being researched by the Lagoon (Swift et al. 1977, Wooley and waters extending 9 nm from shore (16.7 University of Florida. Numerous Crateau 1985, Odenkirk 1989, FWS km) out to the State territorial water underwater beds containing 2000, F. Parauka pers. comm. 2002). boundary. Its northern boundary is brachiopods have recently been located Gulf sturgeon have also been formed by a straight line from the in the Suwannee River estuary and documented in Indian Pass, West Pass, northern tip of Big Pine Island (at adjacent areas in Suwannee Sound (D. East Pass, and just north of Dog Island approximately 29°23′N, 83°12′W) to the Murie and D. Parkyn pers. comm. 2002). (Wooley and Crateau 1985, Odenkirk Federal-State boundary at 29°17′N, Recent stomach content analyses using 1989, FWS 2000, F. Parauka pers. 83°21′W. The southern boundary is a non-lethal method of stomach comm. 2002). Substantial weight gains formed by a straight line from the pumping (lavaging) support that Gulf and the presence of suitable habitat for southern tip of Richards Island (at sturgeon from the Suwannee River prey items indicate that Gulf sturgeon approximately 29°11′N, 83°04′W) to the subpopulation feed primarily on are feeding while within these bodies of Federal-State boundary at 29°04′N, brachiopods, and to lesser amounts on water (Wooley and Crateau 1985, 83°15′W. The lateral extent of Unit 14 is ghost shrimp, amphipods, and worms Odenkirk 1989). These areas are also the MHW line along the shorelines and prior to entering the river (D. Murie and used for accessing adjacent marine and the mouths of the Suwannee River (East D. Parkyn pers. comm. 2002). estuarine feeding areas proposed in Unit and West Pass), its distributaries and Gulf sturgeon tracking and relocation 11. Gulf sturgeon are believed to migrate other rivers, creeks, or water bodies. data were used to delineate the from Apalachicola Bay into the Gulf of The Suwannee River system is unique boundaries of this proposed critical Mexico following prevailing currents among Gulf sturgeon river systems in habitat unit. In 1998, 18 out of 19 sonic- and exiting primarily through the two that the river flows directly into the tagged Gulf sturgeon were consistently most western passes (Indian and West) Suwannee Sound and Gulf of Mexico relocated and found to be concentrated (Odenkirk 1989). No Gulf sturgeon have without any intervening barrier islands. in a relatively small area (115 km2 (44.4 been documented using Sike’s Cut, a Suwannee Sound is a shallow (typically mi2)) offshore of Suwannee Sound man-made opening established in the less than 2 m (6.6 ft)), estuarine basin, (Edwards et al. in prep.). Specific 1950s bisecting Little St. George Island a little less than 10 nm (8 km) long and locations within the concentration area and St. George Island, therefore, Sike’s a little over 4 nm (8 km) wide at its were around Waldley Channel, West Cut is excluded from our proposed widest point. It is enclosed on its Gap, and Hedemon Reef. The farthest designation. seaward side by Suwannee Reef, an offshore area was Hedemon Reef, Tag return data from incidental approximately 14.6 nm (27 km) long arc approximately 5 to 6 nm (9.3 to 11.1 captures and recent relocation data of oyster reefs and shoals (Edwards et al. km) from the Suwannee River opening. document Gulf sturgeon south of the in prep.). The bathymetry of waters off Previous telemetry relocation and Apalachicola barrier islands, generally the coastline and north and south of tracking data collected in 1996 within a mile of the shoreline (Odenkirk Suwannee Sound is different from the documented Gulf sturgeon using Gulf of 1989, FWS 2000). On June 8, 1992, a waters adjacent to other systems. Mexico waters as far out as 9 nm (16.7

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km) (Sulak and Clugston 1999, Edwards The southern extent of the or diffuse throughout the entire area. et al. in prep.). More recently, on March concentration area depicted in Edwards Without additional information we 22, 2002, two Gulf sturgeon were et al. (in prep.) corresponds cannot currently identify other areas to observed jumping in the area of approximately to Richards Island. In propose as critical habitat. 29°14′N, 83°18′W, further substantiating addition to the telemetry data, Gulf Land Ownership the Gulf sturgeon’s use of shallow State sturgeon sightings are frequently waters further offshore (> 6 nm (11.1 reported around Deer Island and Derrick Upon statehood in 1811 for Louisiana, km) (Harris pers. comm. 2002). Benthic Key (F. Chapman, UF, pers. comm. 1817 for Mississippi, 1819 for Alabama, samples were taken where the fish were 2002). Derrick Key is approximately 1 m and 1845 for Florida, these States were jumping and were comprised of fine (1.6 km) offshore of Richards Island. granted ownership of lands beneath sand substrate and lancelets. Although Based on these data, we propose the tidally influenced and navigable waters lancelets are recovered less frequently southernmost extremity of Richards up to the high water mark (Pollard v. than brachiopods in the stomachs of Island for the southern limit of Unit 14. Hagan, 44 U.S. (3 How.) 212 (1845)). It Suwannee River Gulf sturgeon, this may Although Gulf sturgeon have been is possible that prior sovereigns or the be a result of quicker decomposition of relocated both north and south of this States have made grants to private lancelets during digestion compared to proposed critical habitat area (Reynolds parties which include lands below mean brachiopods. Our proposed designation, 1993, F. Chapman pers. comm. 2002, high waters of the navigable waters therefore, includes waters out to 9 nm Edwards et al. in prep.), these records included within this rule. Thus, this (16.7 km) to encompass these areas that are relatively rare and spread out over rule may affect limited parcels of private we believe are essential for recovery. approximately 643.7 km (400 mi) of land. However, we believe that the The northern extent of the tracked coastline (from Charlotte Harbor to majority of lands proposed here as sturgeon concentration area depicted in Apalachicola Bay). Because shallow critical habitat are owned by the States Edwards et al. (in prep.) corresponds waters believed to be used primarily by of Louisiana, Mississippi, Alabama, and approximately to the northern-most Gulf sturgeon are not confined to the Florida. The majority of riparian lands extremity of Big Pine Island. We, nearshore environment, we have no way bordering riverine critical habitat units therefore, have chosen that easy-to- of estimating which other areas might be are in private ownership. Table 3 identify location for the northern limit essential for feeding or movement. Gulf summarizes public lands adjacent to of this proposed critical habitat unit. sturgeon may congregate in certain areas 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, National Space Technology Laboratories (National Aeronautics and Space Administration (NASA)) 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. Unit 5. Choctawhatchee—Choctawhatchee River SF, Choctawhatchee River Delta Preserve, Choctawhatchee River WtrMA. Unit 6. Apalachicola—Chattahoochee Nature Park, Torreya SP, Apalachicola Bluffs and Ravines Preserve, Apalachicola WMA, Apalachicola River WtrMA, Apalachicola NF, Apalachicola National Estuarine Research Reserve. Unit 7. Suwannee—Ft. Union CA, Holton Creek CA, Suwannee River SP CA, Twin Rivers SF, Madison Co. CA, Anderson Spring CA, Charles Spring CA, Allen Mill Pond CA, Peacock Spring CA, Little River CA, Troy Springs CA, Grady CA, Stuart Landing CA, Hatchbend CA, Rock Bluff CA, Log Landing CA, Wannee CA, Fanning Springs SRA, Andrews WMA, Manatee Springs SP, Fowler’s Bluff CA, Cummer Sanctuary, Lower Suwannee NWR, Troy Springs SP, Convict Spring CA, Yellow Jacket CA, Suwannee River SP, Big Shoals SP, Big Shoals CA, Camp Branch CA, Deep Creek CA, Stephen Foster State Folk Culture Center, Suwannee Valley CA, Swift Creek CA, Woods Ferry CA. Unit 8. Lake Borgne, Mississippi Sound, Lake Pontchartrain—Biloxi Marshland Corporation 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, Big Bend Seagrasses AP. *Abbreviations—AFB=Air Force Base, AP=Aquatic Preserve, CA=Conservation Area, NF=National Forest, NS=National Seashore, NWR=National Wildlife Refuge, SCA=State Commemorative Area, SF=State Forest, SP=State Park, SRA=State Recreation Area, SWR=State Wildlife Refuge, WMA=Wildlife Management Area, WMD=Water Management District, WtrMA=Water Management Area.

Effects of Critical Habitat Designation funded by a Federal agency (Federal their actions occur on Federal lands, actions). Regulations implementing this require Federal authorization, or involve ESA Section 7 Consultation interagency cooperation provision of the Federal funding. The regulatory effects of a critical Act are codified at 50 CFR 402. Section 7(a)(2) of the Act requires habitat designation under the Act are Individuals, organizations, States, local Federal agencies, including us, to insure triggered through the provisions of governments, and other non-Federal that their actions are not likely to section 7, which applies only to entities are not affected by the jeopardize the continued existence of a activities conducted, authorized, or designation of critical habitat unless listed species or result in the

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destruction or adverse modification of accordance with the procedures for Federal actions that, when carried designated critical habitat. This formal consultation under 50 CFR out, funded or authorized by a federal requirement is met through section 7 402.14. We may adopt an opinion agency, may destroy or adversely consultation under the Act. Our issued at the conclusion of the modify critical habitat for the Gulf regulations define ‘‘jeopardize the conference as our biological opinion sturgeon include, but are not limited to: continued existence’’ as to engage in an when the critical habitat is designated (1) Actions that would appreciably action that reasonably would be by final rule, but only if new reduce the abundance of riverine prey expected, directly or indirectly, to information or changes to the proposed for larval and juvenile sturgeon, or of reduce appreciably the likelihood of Federal action would not significantly estuarine and marine prey for juvenile both the survival and recovery of a alter the content of the opinion. and adult Gulf sturgeon, within a listed species in the wild by reducing designated critical habitat unit, such as the reproduction, numbers, or Consultation for Designated Critical dredging; dredged material disposal; distribution of that species (50 CFR Habitat channelization; in-stream mining; and 402.02). ‘‘Destruction or adverse If a Federal action may affect a listed land uses that cause excessive turbidity modification of designated critical species or its designated critical habitat, or sedimentation. habitat’’ is defined as a direct or indirect the action agency must initiate (2) Actions that would appreciably alteration that appreciably diminishes consultation with us (50 CFR 402.14). reduce the suitability of Gulf sturgeon the value of the critical habitat for both Through this consultation, we would spawning sites for egg deposition and the survival and recovery of the species advise the agency whether the action development within a designated (50 CFR 402.02). Such alterations would likely jeopardize the continued critical habitat unit, such as include, but are not limited to, adverse existence of the species or adversely impoundment; hard-bottom removal for changes to the physical or biological modify its critical habitat. navigation channel deepening; dredged material disposal; in-stream mining; and features, i.e., the primary constituent When we issue a biological opinion land uses that cause excessive elements, that were the basis for that concludes that an action is likely to sedimentation. determining the habitat to be critical. result in the destruction or adverse The relationship between a species’ (3) Actions that would alter the flow modification of critical habitat, we must survival and its recovery has been a regime (the magnitude, frequency, provide reasonable and prudent source of confusion to some in the past. duration, seasonality, and rate-of-change alternatives to the action, if any are We believe that a species’ ability to of freshwater discharge over time) of a identifiable. Reasonable and prudent recover depends on its ability to survive riverine critical habitat unit such that it alternatives are actions identified during into the future when its recovery can be is appreciably impaired for the purposes consultation that can be implemented in achieved; thus, the concepts of long- of Gulf sturgeon migration, resting, a manner consistent with the intended term survival and recovery are staging, breeding site selection, intricately linked. However, in the purpose of the proposed action, are courtship, egg fertilization, egg March 15, 2001, decision of the United consistent with the scope of the action deposition, and egg development, such States Court of Appeals for the Fifth agency’s authority and jurisdiction, are as impoundment; water diversion; and Circuit (Sierra Club v. U.S. Fish and economically and technologically dam operations. Wildlife Service et al., 245 F.3d 434) feasible, and would likely avoid the (4) Actions that would alter water regarding our previous not prudent destruction or adverse modification of quality within a designated critical finding, the Court found our definition critical habitat (50 CFR 402.02). habitat unit, including temperature, of destruction or adverse modification Reinitiation of Prior Consultations salinity, pH, hardness, turbidity, oxygen as currently contained in 50 CFR 402.02 content, and other chemical to be invalid. In response to this A Federal agency may request a characteristics, such that it is decision, we are reviewing the conference with us for any previously appreciably impaired for normal Gulf regulatory definition of adverse reviewed action that is likely to destroy sturgeon behavior, reproduction, modification in relation to the or adversely modify proposed critical growth, or viability, such as dredging; conservation of the species. habitat and over which the agency dredged material disposal; retains discretionary involvement or channelization; impoundment; in- Conference for Proposed Critical Habitat control, as described above under stream mining; water diversion; dam Section 7(a)(4) of the Act requires ‘‘Conference for Proposed Critical operations; land uses that cause Federal agencies to confer with us on Habitat.’’ Following designation of excessive turbidity; and release of any action that is likely to result in the critical habitat, regulations at 50 CFR chemicals, biological pollutants, or destruction or adverse modification of 402.16 require a Federal agency to heated effluents into surface water or proposed critical habitat. The reinitiate consultation for previously connected groundwater via point regulations for interagency cooperation reviewed actions that may affect critical sources or dispersed non-point sources. regarding proposed critical habitat are habitat and over which the agency has (5) Actions that would alter sediment codified at 50 CFR 402.10. During a retained discretionary involvement or quality within a designated critical conference on the effects of a Federal control. habitat unit such that it is appreciably action on proposed critical habitat, we Federal Actions That May Destroy or impaired for normal Gulf sturgeon make non-binding recommendations on Adversely Modify Gulf Sturgeon Critical behavior, reproduction, growth, or ways to minimize or avoid adverse Habitat viability, such as dredged material effects of the action. We document these disposal; channelization; impoundment; recommendations and any conclusions Section 4(b)(8) of the Act requires us, in-stream mining; land uses that cause reached in a conference report provided in any proposed or final rule excessive sedimentation; and release of to the Federal agency and to any designating critical habitat, to briefly chemical or biological pollutants that applicant involved. describe and evaluate those activities accumulate in sediments. If requested by the Federal agency and that may adversely modify such habitat, (6) Actions that would obstruct deemed appropriate by us, the or that may be affected by such migratory pathways within and between conference may be conducted in designation. adjacent riverine, estuarine, and marine

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critical habitat units, such as dams, Previous biological opinions for the recovery of the sturgeon, as well as dredging, point-source-pollutant Gulf sturgeon also have included non- other listed species, and identify discharges, and other physical or discretionary reasonable and prudent reasonable and prudent measures to chemical alterations of channels and measures, with implementing terms and minimize incidental take of the sturgeon passes that restrict Gulf sturgeon conditions, which are designed to without altering the basic design, movement. minimize the proposed action’s location, scope, duration, or timing of incidental take of Gulf sturgeon. Section the projects. The COE is in the process Previous Section 7 Consultations 3(18) of the Act defines the term take as of developing a biological assessment Many section 7 consultations for ‘‘to harass, harm, pursue, hunt, shoot, that will initiate the formal consultation Federal actions affecting the Gulf wound, kill, trap, capture or collect, or process. If the biological assessment is sturgeon and its habitat have preceded to attempt to engage in any such completed before a final rule is this critical habitat proposal. The action conduct.’’ Harm is further defined in published, potential effects to critical agencies have included the U.S. Army our regulations (50 CFR 7.3) to include habitat will be considered under the Corps of Engineers (COE), other significant habitat modification or conference process. All formal Department of Defense (DOD) agencies, degradation that results in death or consultations concluded ‘‘no jeopardy’’ the U.S. Coast Guard, the National Park injury to listed species by significantly for the Gulf sturgeon. Service, the Federal Highway impairing essential behavioral patterns, If you have questions regarding Administration, the Minerals including breeding, feeding, or whether specific activities would Management Service (MMS), the sheltering. constitute adverse modification of Federal Energy Regulatory Commission, The conservation recommendations critical habitat, you may contact the and others. We have also conducted and reasonable and prudent measures following Services’ offices: intra-service section 7 consultations on provided in previous Gulf sturgeon Alabama—Daphne, FWS Ecological our own actions. biological opinions have included Services Office (334/441–5181) Since listing, the FWS has conducted enforcement of marine debris and trash Florida—Panama City, FWS Ecological 320 informal and 14 formal regulations; avoidance of dredging and Services Office (850/769–0552) consultations, and NMFS has conducted disposal in deeper portions of the Jacksonville, FWS Ecological Services 70 informal and 4 formal consultations channel; monitoring and reporting of Office (904/232–2580) Louisiana—Lafayette, FWS Ecological involving Gulf sturgeon. The informal ‘‘take’’ events during project construction; operation of equipment so Services Office (337/291–3100) consultations, all of which concluded as to avoid or minimize take; monitoring Mississippi—Jackson, FWS Ecological with a finding that the Federal action of post-project habitat conditions; Services Office (601/965–4900) would not affect or would not likely monitoring of project-area Gulf sturgeon NMFS—St. Petersburg, Florida, NMFS adversely affect the Gulf sturgeon, subpopulations; limiting of dredging to Regional Office (727/570–5312) addressed a wide range of actions the minimum dimensions necessary; including navigation, beach Jurisdictional Responsibilities for the limiting of the depth of dredged nourishment, Gulf of Mexico fishery Management of the Gulf Sturgeon material placed in disposal areas; management planning, oil and gas arrangement of the sequence of areas for When the Gulf sturgeon was listed on leases, power plants, bridges, pipelines, dredging to minimize potential harm; September 30, 1991 (56 FR 49653), the breakwaters, rip-rap, levees and other screening of intake structures; Services had not resolved jurisdictional flood-protection structures, piers, avoidance of riverine dredging during responsibilities for the management of bulkheads, jetties, military actions, and spawning months; limiting of tow times the Gulf sturgeon. Both Services signed in-stream gravel mining. The formal of trawl nets for hurricane debris the listing rule in agreement that the consultations, which followed a finding cleanup; addition of specific measures species required protection. The final that the Federal action may affect Gulf for species protection to oil spill listing rule stated that until the sturgeon, have dealt exclusively with contingency plans; and funding of jurisdictional issue was resolved, the navigation projects, oil and gas leases, research useful for Gulf sturgeon FWS would be responsible for the pipelines, review of water quality conservation. species once the listing became standards, and disaster recovery The designation of critical habitat will effective. Although the issue has never activities, and have resulted in have no impact on private landowner been formally resolved, we have been biological opinions. Also, the Gulf activities that do not require Federal operating under a verbal agreement in sturgeon was addressed in several funding or permits. Designation of which the FWS maintains the lead for biological opinions that were triggered critical habitat is only applicable to recovery actions. Consultation by may-affect determinations for other activities approved, funded or carried responsibilities were divided, with the listed species. To date, none of the out by Federal agencies. FWS performing consultation review for Services’ opinions has concluded that a While preparing this proposal, the projects impacting the Gulf sturgeon in proposed Federal action would FWS and the COE met several times to the riverine and estuarine habitats, and jeopardize the continued existence of discuss and review riverine and NMFS performing consultation review the Gulf sturgeon. estuarine navigation channel for projects affecting the species in Previous biological opinions for the maintenance dredging requirements, marine habitats. Gulf sturgeon have included formal and informal consultation We intend to formalize Gulf sturgeon discretionary conservation procedures, and the biology of the Gulf jurisdictional responsibilities within the recommendations to the action agency. sturgeon. During these consultations, final critical habitat rule. In order to Conservation recommendations are the agencies agreed to conduct a formal enhance consultation coordination activities that would avoid or minimize programmatic consultation on channel efficiency for the action agencies, we the adverse effects of a proposed action maintenance activities in riverine and propose the following structure. The on a listed species or its critical habitat, estuarine navigation channels occupied FWS will maintain primary help implement recovery plans, or by the Gulf sturgeon. A programmatic responsibility for recovery actions and develop information useful to the consultation will consider overall the NMFS will assist in and continue to species’ conservation. effects of the project to the survival and fund recovery actions pertaining to

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estuarine and marine habitats. In of the Act and 50 CFR 424.12(a)(1), the expert opinions of at least three riverine units, the FWS will be including whether the benefits of appropriate and independent specialists responsible for all consultations designation will outweigh any threats to regarding this proposed rule. The regarding Gulf sturgeon and critical the species due to designation; purpose of such review is to ensure that habitat. In estuarine units, we will (2) Specific information on the our critical habitat designation is based divide responsibility based on the number and distribution of Gulf on scientifically sound data, action agency involved. The FWS will sturgeon and what habitat is essential to assumptions, and analyses. We will consult with the Department of the conservation of this species and send these peer reviewers copies of this Transportation, the Environmental why; proposed rule immediately following Protection Agency, the Coast Guard, and (3) Whether areas within proposed publication in the Federal Register. We the Federal Emergency Management critical habitat are currently being will invite these peer reviewers to Agency. The NMFS will consult with managed to address conservation needs comment, during the public comment the DOD, COE, MMS, and any other of the Gulf sturgeon; period, on the specific assumptions and Federal agencies not mentioned here (4) Current or planned activities in the conclusions regarding the proposed explicitly. In marine units, the NMFS subject areas and their possible impacts designation of critical habitat. will be responsible for all consultations on proposed critical habitat; We will consider all comments and regarding Gulf sturgeon and critical (5) Any foreseeable economic or other information received during the habitat. Any Federal projects that impacts resulting from the proposed comment period on this proposed rule extend into the jurisdiction of both the designation of critical habitat, in during preparation of a final Services will be consulted on by the particular, any impacts on small rulemaking. Accordingly, the final FWS, but with NMFS assistance where entities; decision may differ from this proposal. needed. Each agency will conduct its (6) Economic and other values own intra-agency consultations as associated with designating critical Clarity of the Rule necessary. We would like your habitat for the Gulf sturgeon, such as Executive Order 12866 requires each comments on this proposal. those derived from non-consumptive agency to write regulations and notices uses (e.g., hiking, camping, wildlife- Exclusions Under Section 4(b)(2) that are easy to understand. We invite watching, enhanced watershed your comments on how to make Section 4(b)(2) of the Act requires that protection, improved air quality, proposed rules easier to understand we designate critical habitat on the basis increased soil retention, ‘‘existence including answers to questions such as of the best scientific and commercial values,’’ and reductions in the following: (1) Are the requirements information available, and that we administrative costs). in the document clearly stated? (2) Does consider the economic and other If you wish to comment on this the proposed rule contain technical relevant impacts of designating a proposed rule, you may submit your language or jargon that interferes with particular area as critical habitat. We comments and materials concerning this the clarity? (3) Does the format of the may exclude areas from critical habitat proposal by any one of several methods proposed rule (grouping and order of if the benefits of exclusion outweigh the (see ADDRESSES section). Our practice is sections, use of headings, paragraphing, benefits of designation, provided the to make comments, including names etc.) aid or reduce its clarity? (4) Is the exclusion will not result in the and home addresses of respondents, description of the proposed rule in the extinction of the species. We will available for public review during ‘‘Supplementary Information’’ section of conduct an analysis of the economic regular business hours. Respondents the preamble helpful in understanding impacts of designating these areas as may request that we withhold their the proposed rule? (5) What else could critical habitat prior to a final home address, which we will honor to we do to make the proposed rule easier determination. That economic analysis the extent allowable by law. There also to understand? will be conducted in a manner that is may be circumstances in which we Send a copy of any comments that consistent with the ruling of the 10th would withhold a respondent’s identity, concern how we could make this notice Circuit Court of Appeals in N.M. Cattle as allowable by law. If you wish for us easier to understand to: Office of Growers Ass’n v. USFWS. When to withhold your name and/or address, Regulatory Affairs, Department of the completed, we will announce the you must state this request prominently Interior, Room 7229, 1849 C Street, NW, availability of the draft economic at the beginning of your comment. Washington, DC 20240. You may e-mail analysis with a notice in the Federal However, we will not consider your comments to this address: Register. Comments will be accepted on anonymous comments. To the extent [email protected]. the draft economic rule for a minimum consistent with applicable law, we will of 30 days, during which the comment make all submissions from Required Determinations period on this rule will remain open. organizations or businesses, and from Regulatory Planning and Review individuals identifying themselves as Public Comments Solicited representatives or officials of In accordance with Executive Order We intend that any final action organizations or businesses, available 12866, this document is a significant resulting from this proposal be as for public inspection in their entirety. rule and was reviewed by the Office of accurate and as effective as possible. Comments and materials received will Management and Budget (OMB). The Therefore, we solicit comments or be available for public inspection, by Services are preparing a draft economic suggestions from the public, other appointment, during normal business analysis of this proposed action. The concerned governmental agencies, the hours at the FWS Ecological Services Services will use this analysis to meet scientific community, industry, or any Office in Panama City Field Office (see the requirement of section 4(b)(2) of the other interested party concerning this ADDRESSES section). ESA to determine the economic proposed rule. We are particularly consequences of designating the specific interested in comments concerning: Peer Review areas as critical habitat and excluding (1) The reasons why any area should In accordance with our joint policy any area from critical habitat if it is or should not be determined to be published in the Federal Register on determined that the benefits of such critical habitat as provided by section 4 July 1, 1994 (59 FR 34270), we will seek exclusion outweigh the benefits of

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specifying such areas as part of the FWS is hereby certifying that this consultation would already be required critical habitat, unless failure to proposed rule will not have a significant due to the presence of the listed species, designate such area as critical habitat effect on a substantial number of small and consultations to avoid the will lead to the extinction of Gulf entities. destruction or adverse modification of sturgeon. This analysis will be available According to the Small Business critical habitat would be incorporated for public comment before finalizing Administration, small entities include into the existing consultation process this designation. In addition, NMFS will small organizations, such as and trigger only minimal additional use this analysis to meet the independent nonprofit organizations, regulatory impacts beyond the duty to requirements of and make and small governmental jurisdictions, avoid jeopardizing the species. determinations under the Regulatory including school boards and city and Designation of critical habitat could Flexibility Act, the Unfunded Mandates town governments that serve fewer than result in an additional economic burden Reform Act and Executive Order 12866. 50,000 residents, as well as small on small entities due to the requirement The availability of the draft economic businesses (13 CFR 121.201). Small to reinitiate consultation for ongoing analysis will be announced in the businesses include manufacturing and Federal activities. However, since the Federal Register. mining concerns with fewer than 500 Gulf sturgeon was listed (1991), the employees, wholesale trade entities FWS has conducted 320 informal and Regulatory Flexibility Act (5 U.S.C. 601 with fewer than 100 employees, retail 14 formal consultations, and the NMFS et seq.) and service businesses with less than $5 has conducted 70 informal and 4 formal The following discussion of the million in annual sales, general and consultations involving this species. potential economic impact of this heavy construction businesses with less Most of these consultations involved proposed rule reflects the conclusions of than $27.5 million in annual business, Federal projects or permits to businesses the FWS, only. This discussion is based special trade contractors doing less than that do not meet the definition of a upon the information regarding $11.5 million in annual business, and small entity (e.g., federally sponsored potential economic impact that is agricultural businesses with annual projects, MMS lease sales). Also, a available to the FWS at this time. This sales less than $750,000. To determine number of COE permit actions involved assessment of economic effect may be if potential economic impacts to these other large public entities (e.g., cities modified prior to final rulemaking based small entities are significant, the FWS with populations greater than 50,000, upon development and review of the considered the types of activities that counties, and State-sponsored activities) economic analysis being prepared might trigger regulatory impacts under that also do not meet the definition of pursuant to section 4(b)(2) of the ESA this rule as well as the types of project a small entity. No formal consultations and E.O. 12866. This analysis is for the modifications that may result. In involved a non-Federal entity. However, purposes of compliance with the general, the term significant economic about 40 informal consultations were on Regulatory Flexibility Act and does not impact is meant to apply to a typical behalf of a private business. Most of reflect the position of the FWS on the small business firm’s business these informal consultations were type of economic analysis required by operations. energy-related (e.g., gas transmission New Mexico Cattle Growers Assn. v. To determine if the rule would affect lines, platform construction and U.S. Fish & Wildlife Service 248 F.3d a substantial number of small entities, removal, intake structures), some being 1277 (10th Cir. 2001). the FWS considered the number of proposed by small entities. There were Under the Regulatory Flexibility Act small entities affected within particular also several piers, docks, bridges, and (5 U.S.C. 601 et seq., as amended by the types of economic activities (e.g., high-speed marine races proposed by Small Business Regulatory Enforcement housing development, grazing, oil and small entities and authorized by either Fairness Act (SBREFA) of 1996), gas production, timber harvesting, etc.). the COE or the Coast Guard. The FWS whenever an agency is required to The FWS applied the ‘‘substantial does not believe that the number of publish a notice of rulemaking for any number’’ test individually to each energy-related small entities; or small proposed or final rule, it must prepare industry to determine if certification is entities constructing docks, piers, and and make available for public comment appropriate. In estimating the numbers bridges; or high-speed marine-race small a regulatory flexibility analysis that of small entities potentially affected, the entities meets the definition of describes the effects of the rule on small FWS also considered whether their substantial described above. entities (i.e., small businesses, small activities have any Federal involvement; The vast majority of critical habitat organizations, and small government some kinds of activities are unlikely to being proposed, with few exceptions, is jurisdictions). However, no regulatory have any Federal involvement and so public land involving river, stream, flexibility analysis is required if the will not be affected by critical habitat estuary, or marine habitat that is also head of the agency certifies the rule will designation. Designation of critical regulated under the Clean Water Act, not have a significant economic impact habitat only affects activities conducted, the Rivers and Harbors Act of 1899, on a substantial number of small funded, or permitted by Federal and/or various Coast Guard authorities. entities. A ‘‘substantial number’’ of agencies; non-Federal activities are not Small entity economic activities that small entities is more than 20 percent of affected by the designation. Federal may require Federal authorization or those small entities affected by the agencies are already required to consult permits include energy-related activities regulation, out of the total universe of with the Services under section 7 of the such as pipelines, harbors, and small entities in the industry or, if Act on activities that they fund, permit, platforms; residential development appropriate, industry segment. SBREFA or implement that may affect the Gulf including docks, piers, bridges, and amended the Regulatory Flexibility Act sturgeon. If this critical habitat shoreline protection; boating-related (RFA) to require Federal agencies to designation is finalized, Federal projects of small communities; private provide a statement of the factual basis agencies must also consult with the port operation including maintenance for certifying that the rule will not have Services if their activities may affect dredging and docks; small water supply a significant economic impact on a designated critical habitat. However, the or hydropower projects; and high speed substantial number of small entities. FWS believes this will result in minimal marine events. However, the FWS is not SBREFA also amended the RFA to additional regulatory burden on Federal aware of a significant number of future require a certification statement. The agencies or their applicants because activities that would require Federal

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permitting or authorization in these assessment is not required. As discussed assist the public in understanding the coastal and river areas. Historically, above, the designation of critical habitat habitat needs of the Gulf sturgeon. there has been less than two informal affects only Federal agency actions. Paperwork Reduction Act of 1995 (44 consultations per State per year Since the proposed critical habitat U.S.C. 3501 et seq.) involving both large and small private includes only aquatic areas that are entities. The FWS is not aware of any generally held in public trust, we This proposed rule does not contain commercial activities on the Federal believe that little or no private property new or revised information collection lands included in these proposed is included in the proposed designation. for which Office of Management and critical habitat designations. Therefore, Based on current public knowledge of Budget approval is required under the the FWS concludes that the proposed the species protection and the Paperwork Reduction Act. Information rule would not affect a substantial prohibition against take of the species collections associated with ESA permits number of small entities. both within and outside of the are covered by an existing OMB In summary, the FWS has considered designated areas, we do not anticipate approval, and are assigned clearance whether this proposed rule would result that property values will be affected by No. 1018–0094, Forms 3–200–55 and 3– in a significant economic effect on a the critical habitat designation. 200–56, with an expiration date of July substantial number of small entities. Additionally, critical habitat 31, 2004. Detailed information for ESA The FWS has concluded that it would designation does not preclude documentation appears at 50 CFR 17. not affect a substantial number of small development of habitat conservation The Service may not conduct or entities. There would be no additional plans and issuance of incidental take sponsor, and a person is not required to section 7 consultations resulting from permits. respond to, a collection of information this rule as all proposed critical habitat unless it displays a currently valid OMB is currently occupied by the Gulf Federalism control number. sturgeon so the consultation In accordance with Executive Order National Environmental Policy Act requirement has already been triggered. 13132, this rule does not have (NEPA) These consultations are not likely to significant Federalism effects. A affect a substantial number of small Federalism assessment is not required. The FWS has determined that it does entities. This rule would result in In keeping with Department of the not need to prepare an Environmental project modifications only when Interior and Department of Commerce Assessment or an Environmental Impact proposed Federal activities would policies, we requested information from, Statement as defined by the National destroy or adversely modify critical and coordinated development of both Environmental Policy Act of 1969 habitat. While this may occur, it is not the listing and the proposal to designate (NEPA) in connection with regulations expected to occur frequently enough to critical habitat with, appropriate State adopted pursuant to section 4(a) of the affect a substantial number of small resource agencies in Louisiana, Act. The FWS published a notice entities. Therefore, the FWS is certifying Mississippi, Alabama, and Florida. The outlining its reasons for this that the proposed designation of critical designation of critical habitat for the determination in the Federal Register habitat for the Gulf sturgeon will not Gulf sturgeon imposes no restrictions in on October 25, 1983 (48 FR 49244). have a significant economic impact on addition to those currently in place, NMFS has determined that this action is a substantial number of small entities, and, therefore, has little additional categorically excluded from NEPA and an initial regulatory flexibility impact on State and local governments requirements. analysis is not required. This and their activities. The designation Government-to-Government determination will be revisited after may have some benefit to these Relationship With Tribes completion of our economic analysis governments in that the areas essential In accordance with the President’s and revised, if necessary, in the final to the conservation of the species are rule. memorandum of April 29, 1994, more clearly defined, and the primary ‘‘Government-to-Government Relations Executive Order 13211 constituent elements of the habitat with Native American Tribal necessary to the conservation of the On May 18, 2001, the President issued Governments’’ (59 FR 22951), Executive species are specifically identified. While Executive Order 13211 on regulations Order 13175, and the Department of this definition and identification does that significantly affect energy supply, Interior’s manual at 512 DM 2, we not alter where and what federally distribution, and use. Executive Order readily acknowledge our responsibility sponsored activities may occur, it may 13211 requires agencies to prepare to communicate meaningfully with assist these local governments in long- Statements of Energy Effects when recognized Federal Tribes on a range planning, rather than waiting for undertaking certain actions. government-to-government basis. We case-by-case section 7 consultations to have determined that there are no tribal Unfunded Mandates Reform Act (2 occur. lands essential for the conservation of U.S.C. 1501 et seq.) Civil Justice Reform the Gulf sturgeon. Therefore, In accordance with the Unfunded designation of critical habitat for the Mandates Reform Act (2 U.S.C. 1501 et In accordance with Executive Order Gulf sturgeon has not been proposed on seq.) the agencies will use the economic 12988, the Office of the Solicitor has Tribal lands. analysis to further evaluate this determined that the rule does not situation. unduly burden the judicial system and References Cited meets the requirements of sections 3(a) A complete list of all references cited Takings and 3(b)(2) of the Order. We are in this proposed rule is available upon In accordance with Executive Order proposing to designate critical habitat in request from the Panama City Field 12630 (‘‘Government Actions and accordance with the provisions of the Office (see ADDRESSES section). Interference with Constitutionally Endangered Species Act. The rule uses Protected Private Property Rights’’), this standard property descriptions and Author rule does not have significant takings identifies the primary constituent The primary authors of this document implications. A takings implication elements within the designated areas to are Patty Kelly, FWS, (850/769–0552,

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extension 228), and Jennifer Lee, NMFS, Proposed Regulation Promulgation Authority: 16 U.S.C. 1361–1407; 16 U.S.C. (727/570–5312) (see ADDRESSES section). 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– For the reasons outlined in the 625, 100 Stat. 3500, unless otherwise noted. List of Subjects preamble, we propose to amend part 17, 50 CFR Part 17 subchapter B of chapter I, and part 226, 2. In § 17.11(h), revise the entry for the ‘‘Sturgeon, Gulf’’ under ‘‘FISHES’’ in Endangered and threatened species, subchapter C of chapter II, title 50 of the Code of Federal Regulations, as follows: the List of Endangered and Threatened Exports, Imports, Reporting and Wildlife to read as follows: recordkeeping requirements, PART 17—[AMENDED] Transportation. § 17.11 Endangered and threatened 50 CFR Part 226 1. The authority citation for part 17 wildlife. Endangered and threatened species, continues to read as follows: * * * * * Incorporation by reference. (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 ...... Acipenset oxyrinchus U.S.A. (AL, FL, GA, Entire ...... T 444 17.95(e) 17.44(v) (=oxyrhynchus) LA, MS). desotoi.

*******

3. Amend § 17.95(e) by adding critical seasonality, and rate-of-change of (4) Unit 1: Pearl River System in St. habitat for the Gulf sturgeon (Acipenser freshwater discharge over time) Tammany and Washington Parishes in oxyrinchus desotoi), in the same necessary for normal behavior, growth, Louisiana and Walthall, Hancock, Pearl alphabetical order as the species occurs and survival of all life stages in the River, Marion, Lawrence, Simpson, in § 17.11(h) to read as follows: riverine environment, including Copiah, Hinds, Rankin, and Pike migration, breeding site selection, Counties in Mississippi. § 17.95 Critical habitat—fish and wildlife. courtship, egg fertilization, resting, and * * * * * (i) Unit 1 includes the Pearl River staging; and necessary for maintaining main stem from the spillway of the Ross (e) Fishes. *** spawning sites in suitable condition for Barnett Dam, Hinds and Rankin Gulf Sturgeon (Acipenser oxyrinchus egg attachment, eggs sheltering, resting, Counties, Mississippi, downstream to desotoi) and larvae staging; where the main stem river drainage (iv) Water quality, including (1) Critical habitat units are depicted discharges at its mouth joining Lake temperature, salinity, pH, hardness, for Louisiana, Mississippi, Alabama, Borgne, Little Lake, or The Rigolets in turbidity, oxygen content, and other and Florida on the maps below. Hancock County, Mississippi, and St. chemical characteristics, necessary for (2) The primary constituent elements Tammany Parish, Louisiana. It includes normal behavior, growth, and viability essential for the conservation of Gulf the main stems of the East Pearl River, of all life stages; sturgeon are those habitat components West Pearl River, West Middle River, (v) Sediment quality, including that support feeding, resting, and Holmes Bayou, Wilson Slough, sheltering, reproduction, migration, and texture and other chemical downstream to where these main stem physical features necessary for characteristics, necessary for normal river drainages discharge at the mouths maintaining the natural processes that behavior, growth, and viability of all life of Lake Borgne, Little Lake, or The support these habitat components. The stages; and Rigolets. Unit 1 also includes the Bogue primary constituent elements include: (vi) Safe and unobstructed migratory Chitto River main stem, a tributary of (i) Abundant prey items within pathways necessary for passage within the Pearl River, from its confluence with riverine habitats for larval and juvenile and between riverine, estuarine, and Lazy Creek just upstream of its crossing life stages, and within estuarine and marine habitats. with Mississippi State Highway 570, marine habitats for juvenile, subadult, (3) The textual unit descriptions Pike County, Mississippi, downstream and adult life stages; below are the definitive source for (ii) Riverine spawning sites with determining the critical habitat to its confluence with the West Pearl substrates suitable for egg deposition boundaries. General location maps by River, St. Tammany Parish, Louisiana. and development, such as limestone unit are provided at the end of each unit The lateral extent of Unit 1 is the outcrops and cut limestone banks, description and are provided for general ordinary high water line on each bank bedrock, large gravel or cobble beds, guidance purposes only, and not as a of the associated rivers and shorelines. marl, soapstone or hard clay; definitive source for determining critical (ii) Maps of Unit 1 follow: (iii) A flow regime (i.e., the habitat boundaries. BILLING CODE 4310–55–P magnitude, frequency, duration,

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BILLING CODE 4310–55–C

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(5) Unit 2: Pascagoula River System in main stem beginning from Mississippi confluence with the Pascagoula River, Forrest, Perry, Greene, George, Jackson, State Highway 588, Jones County, Jackson County, Mississippi. All of the Clarke, Jones, and Wayne Counties, Mississippi, downstream to its main stem of the Pascagoula River from Mississippi. confluence with the Chickasawhay its confluence with the Leaf and (i) Unit 2 includes all of the River, George County, Mississippi is Chickasawhay Rivers, George County, Pascagoula River main stem and its included. The main stem of the Mississippi, to the discharge of the East distributaries, portions of the Bowie, Chickasawhay River from the mouth of and West Pascagoula Rivers into Leaf, and Chickasawhay tributaries, and Oaky Creek, Clarke County, Mississippi, Pascagoula Bay, Jackson County, all of the Big Black Creek tributary. It downstream to its confluence with the Mississippi, is included. The lateral includes the Bowie River main stem Leaf River, George County, Mississippi extent of Unit 2 is the ordinary high beginning at its confluence with Bowie Creek and Okatoma Creek, Forrest is included. Unit 2 also includes Big water line on each bank of the County, Mississippi, downstream to its Black Creek main stem from its associated rivers and shorelines. confluence with the Leaf River, Forrest confluence with Black and Red Creeks, (ii) Maps of Unit 2 follow: County, Mississippi. The Leaf River Jackson County, Mississippi, to its BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(6) 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 4310–55–P Escambia County, Alabama, and stem from Alabama County Road 42,

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BILLING CODE 4310–55–C

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(7) 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 Blackwater Bay, Santa Rosa County, Creek, Santa Rosa County, Florida, (ii) Maps of Unit 4 follow: Florida. All Yellow River distributaries downstream to its discharge into BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(8) 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 4310–55–P Walton County, Florida. The Florida, is included. The Pea River main

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BILLING CODE 4310–55–C

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(9) Unit 6: Apalachicola River System Apalachicola Bay, Franklin County, Franklin and Gulf Counties, Florida, a in Franklin, Gulf, Liberty, Calhoun, Florida. All Apalachicola River tributary of the Apalachicola River, is Jackson, and Gadsen Counties, Florida. distributaries, including the East River, included. The lateral extent of Unit 6 is (i) Unit 6 includes the Apalachicola Little St. Marks River, St. Marks River, the ordinary high water line on each 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 (ii) Maps of Unit 6 follow: to its discharge at East Bay or entire main stem of the Brothers River, BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(10) 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 4310–55–P

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BILLING CODE 4310–55–C

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(11) Unit 8: Lake Pontchartrain, Lake Pass, Dog Keys Pass, Horn Island Pass, offshore of the 72 COLREGS lines at St. Catherine, The Rigolets, Little Lake, and Petit Bois Pass. The northern barrier island passes (defined at 33 CFR Lake Borgne, and Mississippi Sound in boundary of the Mississippi Sound is 80.815 (c), (d) and (e)) to the eastern Jefferson, Orleans, St. Tammany, and St. the shorelines of the mainland between boundary. Between Cat Island and Ship Bernard Parish, Louisiana, Hancock, Heron Bay Point, Mississippi and Point Island there is no 72 COLREGS line. We Jackson, and Harrison Counties in aux Pins, Alabama. Proposed critical therefore, have defined that section of Mississippi, and in Mobile County, habitat excludes St. Louis Bay, north of the southern boundary as 1 nm (1.9 km) Alabama. the railroad bridge across its mouth; offshore of a straight line drawn from (i) Unit 8 encompasses Lake Biloxi Bay, north of the U.S. Highway the southern tip of Cat Island to the Pontchartrain east of the Lake 90 bridge; and Back Bay of Biloxi. The western tip of Ship Island. The eastern Pontchartrain Causeway, all of Little southern boundary follows along the boundary is the line of longitude Lake, The Rigolets, Lake St. Catherine, broken shoreline of Lake Borgne created 88°18.8′W from its intersection with the Lake Borgne, including Heron Bay, and by low swampy islands from shore (Point aux Pins) to its intersection the Mississippi Sound. Proposed critical Malheureux Point to Isle au Pitre. From with the southern boundary. The lateral habitat follows the shorelines around the northeast point of Isle au Pitre, the extent of Unit 8 is the MHW line on the perimeters of each included lake. boundary continues in a straight north- each shoreline of the included water The Mississippi Sound includes northeast line to the point 1 nm (1.9 km) adjacent open bays including seaward of the westernmost extremity of bodies or the entrance to rivers, bayous, Pascagoula Bay, Point aux Chenes Bay, Cat Island (30°13′N, 89°10′W). The and creeks. Grand Bay, Sandy Bay, and barrier southern boundary continues 1 nm (1.9 (ii) Maps of Unit 8 follow: island passes, including Ship Island km) offshore of the barrier islands and BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(12) Unit 9: Pensacola Bay System in Cove, and Catfish Basin. All other bays, (g)). The eastern boundary is the Florida Escambia and Santa Rosa Counties, bayous, creeks, and rivers are excluded State Highway 399 Bridge at Gulf Florida. at their mouths. The western boundary Breeze, Florida. The lateral extent of (i) Unit 9 includes Pensacola Bay and is the Florida State Highway 292 Bridge Unit 9 is the MHW line on each its adjacent main bays and coves. These crossing Big Lagoon to Perdido Key. The included bay’s shoreline. include Big Lagoon, Escambia Bay, East southern boundary is the 72 COLREGS (ii) A map of Unit 9 follows: Bay, Blackwater Bay, Bayou Grande, line between Perdido Key and Santa Macky Bay, Saultsmar Cove, Bass Hole Rosa Island (defined at 33 CFR 80.810 BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(13) 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 4310–55–P

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BILLING CODE 4310–55–C

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(14) Unit 11: Florida Nearshore Gulf km) 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 the northern boundary. The eastern BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(15) Unit 12: Choctawhatchee Bay in are excluded at their mouths/entrances. 80.810 (f). The lateral extent of Unit 12 Okaloosa and Walton Counties, Florida. The western boundary is the U.S. is the MHW line on each shoreline of (i) Unit 12 includes the main body of Highway 98 bridge at Fort Walton the included water bodies. Choctawhatchee Bay, Hogtown Bayou, Beach, Florida. The southern boundary (ii) A map of Unit 12 follows: Jolly Bay, Bunker Cove, and Grassy is the 72 COLREGS line across East BILLING CODE 4310–55–P Cove. All other bayous, creeks, rivers (Destin) Pass as defined at 33 CFR

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BILLING CODE 4310–55–C

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(16) 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 (i) 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 (ii) A map of Unit 13 follows: and East Pass) are also included. Sike’s Indian Peninsula) to its intersection BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(17) 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 4310–55–P

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BILLING CODE 4310–55–C

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(18)(i) The river reaches within Units PART 226–[AMENDED] These lines are defined in 33 CFR part 1 to 7 proposed as critical habitat lie 80, and have been used for within the ordinary high water line. As 1. The authority citation for part 226 identification purposes to delineate defined in 33 CFR 329.11, the ordinary continues to read as follows: boundary lines of the estuarine and high water line on non-tidal rivers is the Authority: 16 U.S.C. 1533 marine habitat Units 8, 9, 11, and 12. Critical habitat does not include existing line on the shore established by the 2. Section 226.214 is added to read as developed sites such as dams, piers, fluctuations of water and indicated by follows: physical characteristics such as a clear, marinas, bridges, boat ramps, exposed natural line impressed on the bank; § 226.214 Critical habitat for Gulf sturgeon. oil and gas pipelines, oil rigs, and shelving; changes in the character of Gulf sturgeon is under the joint similar structures or designated public soil; destruction of terrestrial vegetation; jurisdiction of the U.S. Fish and swimming areas. For a complete the presence of litter and debris; or Wildlife Service (FWS) and NMFS. The description of critical habitat units (1– other appropriate means that consider FWS will maintain primary 14) and the constituent elements for the characteristics of the surrounding responsibility for recovery actions and Gulf sturgeon see 50 CFR part 17. Units areas. NMFS will assist in and continue to 8 through 14 described below are in (ii) The downstream limit of the fund recovery actions pertaining to estuarine and marine waters, where riverine units is the mouth of each river. estuarine and marine habitats. In NMFS has jurisdiction. (a) Unit 8: Lake Pontchartrain, Lake The mouth is defined as rkm 0 (rm 0). riverine units, the FWS will be St. Catherine, The Rigolets, Little Lake, Although the interface of fresh and responsible for all consultations Lake Borgne, and Mississippi Sound in saltwater, referred to as the saltwater regarding Gulf sturgeon and critical Jefferson, Orleans, St. Tammany, and wedge, occurs within the lower-most habitat. In estuarine units, we will St. Bernard Parish, Louisiana, Hancock, reach of a river, for ease in delineating divide responsibility based on the Jackson, and Harrison Counties in MS, action agency involved. The FWS will critical habitat units, we are defining the and in Mobile County, AL. boundary between the riverine and consult with the Department of (1) Unit 8 encompasses Lake estuarine units as rkm 0 (rm 0). Transportation, the Environmental Pontchartrain east of the Lake (iii) Regulatory jurisdiction in coastal Protection Agency, the Coast Guard, and Pontchartrain Causeway, all of Little areas extends to the line on the shore the Federal Emergency Management Lake, The Rigolets, Lake St. Catherine, reached by the plane of the mean Agency. NMFS will consult with the Lake Borgne, including Heron Bay, and (average) high water (MHW) (33 CFR DOD, COE, MMS and any other Federal the Mississippi Sound. Proposed critical 329.12(a)(2)). All bays and estuaries agencies not mentioned here explicitly. habitat follows the shorelines around within Units 8 to 14 therefore, lie below In marine units, NMFS will be the perimeters of each included lake. the MHW lines. Where precise responsible for all consultations The Mississippi Sound includes determination of the actual location regarding Gulf sturgeon and critical adjacent open bays including becomes necessary, it must be habitat. Any Federal projects that Pascagoula Bay, Point aux Chenes Bay, established by survey with reference to extend into the jurisdiction of both the Grand Bay, Sandy Bay, and barrier the available tidal datum, preferably Services will be consulted on by the island passes, including Ship Island averaged over a period of 18.6 years. FWS, but with NMFS assistance where Pass, Dog Keys Pass, Horn Island Pass, Less precise methods, such as needed. Each agency will conduct its and Petit Bois Pass. The northern observation of the ‘‘apparent shoreline’’ own intra-agency consultations as boundary of the Mississippi Sound is which is determined by reference to necessary. Regulatory jurisdiction in the shorelines of the mainland between physical markings, lines of vegetation, coastal areas extends to the line on the Heron Bay Point, MS and Point aux may be used only where an estimate is shore reached by the plane of the mean Pins, AL. Proposed critical habitat needed of the line reached by the mean (average) high water (MHW) (33 CFR excludes St. Louis Bay, north of the high water. 329.12(a)(2)). All bays and estuaries railroad bridge across its mouth; Biloxi within Units 8 to 14, therefore, lie below (iv) The term 72 COLREGS is defined Bay, north of the U.S. Highway 90 the MHW lines. Where precise as demarcation lines which delineate bridge; and Back Bay of Biloxi. The determination of the actual location those waters upon which mariners shall southern boundary follows along the becomes necessary, it must be comply with the International broken shoreline of Lake Borgne created established by survey with reference to Regulations for Preventing Collisions at by low swampy islands from the available tidal datum, preferably Sea, 1972 and those waters upon which Malheureux Point to Isle au Pitre. From averaged over a period of 18.6 years. mariners shall comply with the Inland the northeast point of Isle au Pitre, the Less precise methods, such as Navigation Rules (33 CFR 80.01). The boundary continues in a straight north- observation of the ‘‘apparent shoreline’’ waters inside of these lines are Inland northeast line to the point 1 nm (1.9 km) which is determined by reference to Rules waters and the waters outside the seaward of the western most extremity physical markings, lines of vegetation, ° ′ ° ′ lines are COLREGS waters. These lines of Cat Island (30 13 N, 89 10 W). The may be used only where an estimate is southern boundary continues 1 nm (1.9 are defined in 33 CFR 80, and have been needed of the line reached by the mean km) offshore of the barrier islands and used for identification purposes to high water. The term 72 COLREGS is offshore of the 72 COLREGS lines at delineate boundary lines of the defined as demarcation lines which barrier island passes (defined at 33 CFR estuarine and marine habitat Units 8, 9, delineate those waters upon which 80.815 (c), (d) and (e)) to the eastern 11, and 12. mariners shall comply with the boundary. Between Cat Island and Ship (19) Critical habitat does not include International Regulations for Preventing Island there is no 72 COLREGS line. We existing developed sites such as dams, Collisions at Sea, 1972 and those waters therefore, have defined that section of piers, marinas, bridges, boat ramps, upon which mariners shall comply with the southern boundary as 1 nm (1.9 km) exposed oil and gas pipelines, oil rigs, the Inland Navigation Rules (33 CFR offshore of a straight line drawn from and similar structures or designated 80.01). The waters inside of these lines the southern tip of Cat Island to the public swimming areas. are Inland Rules waters and the waters western tip of Ship Island. The eastern * * * * * outside the lines are COLREGS waters. boundary is the line of longitude

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88°18.8’W from its intersection with the each shoreline of the included water (2) Maps of Unit 8 follow: shore (Point aux Pins) to its intersection bodies or the entrance to rivers, bayous, BILLING CODE 4310–55–P with the southern boundary. The lateral and creeks. extent of Unit 8 is the MHW line on

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BILLING CODE 4310–55–C

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(b) Unit 9: Pensacola Bay System in Cove, and Catfish Basin. All other bays, (g)). The eastern boundary is the Florida Escambia and Santa Rosa Counties, bayous, creeks, and rivers are excluded State Highway 399 Bridge at Gulf Florida. at their mouths. The western boundary Breeze, FL. The lateral extent of Unit 9 (1) Unit 9 includes Pensacola Bay and is the Florida State Highway 292 Bridge is the MHW line on each included bay’s its adjacent main bays and coves. These crossing Big Lagoon to Perdido Key. The shoreline. include Big Lagoon, Escambia Bay, East southern boundary is the 72 COLREGS (2) A map of Unit 9 follows: Bay, Blackwater Bay, Bayou Grande, line between Perdido Key and Santa Macky Bay, Saultsmar Cove, Bass Hole Rosa Island (defined at 33 CFR 80.810 BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(c) Unit 10: Santa Rosa Sound in Florida State Highway 399 bridge in formed by the shorelines to the MHW Escambia, Santa Rosa, and Okaloosa Gulf Breeze, FL. The eastern boundary line or by the entrance to rivers, bayous, Counties, FL. is the U.S. Highway 98 bridge in Fort and creeks. (1) Unit 10 includes the Santa Rosa Walton Beach, FL. The northern and (2) A map of Unit 10 follows: Sound, bounded on the west by the southern boundaries of Unit 10 are BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(d) Unit 11: Florida Nearshore Gulf of km) west of Pensacola Pass) from its boundary is the line of longitude 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, FL. boundary. The northern boundary is the San Blas and Indian Peninsula) to its (1) 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 (2) A map of Unit 11 follows: 87°20.0′ W (approximately 1 nm (1.9 the northern boundary. The eastern BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(e) Unit 12: Choctawhatchee Bay in are excluded at their mouths/entrances. lateral extent of Unit 12 is the MHW Okaloosa and Walton Counties, FL. 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 4310–55–P Cove. All other bayous, creeks, rivers Pass as defined at 33 CFR 80.810 (f). The

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BILLING CODE 4310–55–C

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(f) Unit 13: Apalachicola Bay in Gulf cut is excluded from the lighted buoys with the southern boundary. The and Franklin County, FL. 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 4310–55–P

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BILLING CODE 4310–55–C

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(g) Unit 14: Suwannee Sound in Dixie northern tip of Big Pine Island (at 29°04′ N. The lateral extent of Unit 14 and Levy Counties, FL. approximately 29°23′ N, 83°12′ W) to is the MHW line along the shorelines (1) Unit 14 includes Suwannee Sound the Federal-State boundary at 29°17′ N, and the mouths of the Suwannee River and a portion of adjacent Gulf of Mexico 83°21′ W. The southern boundary is (East and West Pass), its distributaries, waters extending 9 nm from shore (16.7 formed by a straight line from the and other rivers, creeks, or water bodies. km) out to the State territorial water southern tip of Richards Island (at (2) A map of Unit 14 follows: boundary. Its northern boundary is approximately 83°04′ W, 29°11′ N) to formed by a straight line from the the Federal-State boundary at 83°15′ W, BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C

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(h) The river reaches within Units 1 natural line impressed on the bank; Dated: May 24, 2002. to 7 proposed as critical habitat lie shelving; changes in the character of Craig Manson, within the ordinary high water line. As soil; destruction of terrestrial vegetation; Assistant Secretary for Fish and Wildlife and defined in 33 CFR 329.11, the ordinary the presence of litter and debris; or Parks. high water line on non-tidal rivers is the other appropriate means that consider Dated: May 24, 2002. line on the shore established by the the characteristics of the surrounding John Oliver, fluctuations of water and indicated by areas. Acting Assistant Administrator for Fisheries, physical characteristics such as a clear, National Marine Fisheries Service. [FR Doc. 02–13620 Filed 6–5–02; 8:45 am] BILLING CODE 4310–55–P

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