Federal Register / Vol. 81, No. 107 / Friday, June 3, 2016 / Proposed Rules 35701

the Act, including the factors identified Recovery and State Grants, Ecological Public hearings and public in this finding and explanation (see Services Program, U.S. Fish and information meetings: We will hold two Request for Information, above). Wildlife Service. public hearings and two public informational meetings on this proposed Conclusion Authority rule. We will hold a public On the basis of our evaluation of the The authority for these actions is the informational meeting from 2 to 4 p.m., information presented under section Endangered Species Act of 1973, as in Annapolis, Maryland on Wednesday, 4(b)(3)(A) of the Act, we have amended (16 U.S.C. 1531 et seq.). July 13 (see ADDRESSES). A second determined that the petition to remove Dated: May 25, 2016. public informational meeting will be the golden-cheeked warbler from the Stephen Guertin, held from 3 to 5 p.m., in Portland, List of Endangered and Threatened Maine on Monday, July 18 (see Wildlife does not present substantial Acting Director, U.S. Fish and Wildlife Service. ADDRESSES). We will hold two public scientific or commercial information [FR Doc. 2016–13120 Filed 6–2–16; 8:45 am] hearings, from 3 to 5 p.m. and 6 to 8 indicating that the requested action may p.m., in Gloucester, Massachusetts on BILLING CODE 4333–15–P be warranted. Therefore, we are not Thursday, July 21 (see ADDRESSES). initiating a status review for this ADDRESSES: You may submit comments, species. DEPARTMENT OF COMMERCE identified by the NOAA–NMFS–2015– We have further determined that the 0107, by either of the following petition to list the U.S. population of National Oceanic and Atmospheric methods: northwestern moose (Alces alces Administration • Electronic Submissions: Submit all andersoni) as an endangered or electronic public comments via the threatened DPS presents substantial 50 CFR Part 226 Federal eRulemaking Portal. Go to scientific or commercial information www.regulations.gov/ indicating that the requested action may [Docket No. 150818735–6236–01] #!docketDetail;D=NOAA-NMFS-2015- be warranted. Because we have found RIN 0648–BF28 0107, Click the ‘‘Comment Now!’’ icon, that the petition presents substantial complete the required fields, and enter information indicating that the Endangered and Threatened Species; or attach your comments. petitioned action may be warranted, we Designation of Critical Habitat for the • Mail: Kimberly B. Damon-Randall, are initiating a status review to Gulf of Maine, New York Bight, and Assistant Regional Administrator, determine whether this action under the Chesapeake Bay Distinct Population Protected Resources Division, NMFS, Act is warranted. At the conclusion of Segments of Atlantic Sturgeon Greater Atlantic Regional Office, 55 the status review, we will issue a 12- AGENCY Great Republic Drive, Gloucester, MA month finding in accordance with : National Marine Fisheries 01930. section 4(b)(3)(B) of the Act, as to Service (NMFS), National Oceanic and Instructions: Comments sent by any whether or not the Service believes the Atmospheric Administration (NOAA), other method, to any other address or petitioned action is warranted. Commerce. It is important to note that the ACTION: Proposed rule; request for individual, or received after the end of ‘‘substantial information’’ standard for a comments. the comment period, may not be 90-day finding differs from the Act’s considered by us. All comments SUMMARY: We, the National Marine ‘‘best scientific and commercial data’’ received are a part of the public record Fisheries Service (NMFS), propose to standard that applies to a status review and will generally be posted for public designate critical habitat for the Gulf of to determine whether a petitioned viewing on www.regulations.gov Maine, New York Bight, and action is warranted. A 90-day finding without change. All personal identifying Chesapeake Bay Distinct Population does not constitute a status review information (e.g., name, address, etc.), Segments (DPSs) of Atlantic sturgeon under the Act. In a 12-month finding, confidential business information, or (Acipenser oxyrinchus oxyrinchus). The we will determine whether a petitioned otherwise sensitive information specific areas proposed for designation action is warranted after we have submitted voluntarily by the sender will include approximately 244 kilometers completed a thorough status review of be publicly accessible. We will accept (152 miles) of aquatic habitat in rivers the species, which is conducted anonymous comments (enter ‘‘N/A’’ in in Maine, New Hampshire, and following a substantial 90-day finding. the required fields if you wish to remain Massachusetts for the Gulf of Maine Because the Act’s standards for 90-day anonymous). DPS, approximately 547 kilometers (340 and 12-month findings are different, as Public informational meetings and miles) of aquatic habitat in rivers in described above, a substantial 90-day public hearings: The July 13, 2016, Connecticut, Massachusetts, New York, finding does not mean that the 12- public informational meeting will be New Jersey, Pennsylvania, and Delaware month finding will result in a finding held at the Environmental Protection for the New York Bight DPS, and that the petitioned action is warranted. Agency, Information and Conference approximately 729 kilometers (453 Center, 410 Severn Avenue, Annapolis, References Cited miles) of aquatic habitat in rivers in MD 21403. The July 18, 2016, public A complete list of references cited is Maryland, Virginia, and the District of informational meeting will be held at available for each species addressed in Columbia for the Chesapeake Bay DPS the Gulf of Maine Research Institute, this document on the Internet at http:// of Atlantic sturgeon. We are soliciting Cohen Center, 350 Commercial Street, www.regulations.gov and upon request comments from the public on all aspects Portland, Maine 04101. The July 21, from the appropriate person listed of the proposal, including information 2016, public hearings will be held at the under FOR FURTHER INFORMATION on the economic, national security, and NMFS, Greater Atlantic Region CONTACT, above. other relevant impacts of the proposed Fisheries Office, 55 Great Republic designations, as well as the benefits to Drive, Gloucester, MA 01930. People Authors the DPSs. needing reasonable accommodations in The primary authors of this document DATES: Comments on this proposed rule order to attend and participate or who are the staff members of the Branch of must be received by September 1, 2016. have questions about the public

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hearings should contact Lynn within the 50 meter depth contour) to such areas as critical habitat will result Lankshear, NMFS, Greater Atlantic and from estuarine areas, we could not in the extinction of the species. Finally, Region Fisheries Office (GARFO), as identify what the specific features are of section 4(a)(3)(B) prohibits designating soon as possible (see FOR FURTHER these habitats that make them important as critical habitat any lands or other INFORMATION CONTACT). to sturgeon and that may require special geographical areas owned or controlled FOR FURTHER INFORMATION CONTACT: management. by the Department of Defense or designated for its use, that are subject to Lynn Lankshear, NMFS, GARFO at 978– Background 282–8473; Julie Crocker, NMFS, GARFO an Integrated Natural Resources at 978–282–8480; or Lisa Manning, Under section 4 of the ESA, critical Management Plan (INRMP) prepared NMFS, Office of Protected Resources at habitat shall be specified to the under section 101 of the Sikes Act (16 301–427–8466. maximum extent prudent and U.S.C. 670a), if the Secretary determines determinable at the time a species is SUPPLEMENTARY INFORMATION: in writing that such plan provides a In listed as threatened or endangered (16 accordance with section 4(b)(2) of the conservation benefit to the species, and U.S.C. 1533(b)(6)(C)). We concluded its habitat, for which critical habitat is ESA (16 U.S.C. 1533(b)(2)) and our that critical habitat was not implementing regulations (50 CFR proposed for designation. Although not determinable for the Gulf of Maine, New expressly stated in section 4(b)(2), our 424.12), this proposed rule is based on York Bight, and Chesapeake Bay DPSs the best scientific information available regulations clarify that critical habitat when we published the final listing rule shall not be designated within foreign concerning the range, biology, habitat, (77 FR 5880, February 6, 2012). and threats to the habitat for the Gulf of countries or in other areas outside of However, we anticipated that critical United States jurisdiction (50 CFR Maine, New York Bight, and habitat would be determinable in the 424.12(g)). Chesapeake Bay DPSs of Atlantic future, given on-going research. We, Once critical habitat is designated, sturgeon. We have reviewed the therefore, announced in the final rule section 7(a)(2) of the ESA requires information (e.g., provided in reports, that we would propose critical habitat Federal agencies to ensure that any peer-reviewed literature, and technical for each DPS in a separate rulemaking. action they fund, authorize or carry out documents) and have used it to identify Section 3(5)(A) of the ESA defines is not likely to destroy or adversely the physical and biological features critical habitat as the specific areas modify that habitat (16 U.S.C. essential to the conservation of each within the geographical area occupied 1536(a)(2)). This requirement is in DPS, the specific areas within the by the species at the time it is listed on addition to the section 7(a)(2) occupied areas that contain the essential which are found those physical or requirement that Federal agencies physical and biological features that biological features essential to the ensure that their actions are not likely may require special management conservation of the species and which to jeopardize the continued existence of protection, the federal activities that may require special management ESA-listed species. Specifying the may impact those features, and the considerations or protections, and geographic location of critical habitat potential impacts of designating critical specific areas outside the geographical also facilitates implementation of habitat for each DPS. We have gathered area occupied by the species at the time section 7(a)(1) of the ESA by identifying this information for all three DPSs into it is listed that are essential for the areas where Federal agencies can focus a single document, the Draft Biological conservation of the species (16 U.S.C. their conservation programs and use Information and ESA section 4(b)(2) 1532(5)(A)). Conservation is defined in their authorities to further the purposes Source Document. The economic section 3(3) of the ESA as ‘‘. . . to use, of the ESA. Critical habitat requirements impacts of the proposed critical habitat and the use of, all methods and do not apply to citizens engaged in designations for each DPS are described procedures which are necessary to bring activities on private land that do not in the document titled, Draft Economic any endangered species or threatened involve a Federal agency. However, Impact Analysis of Critical Habitat species to the point at which the designating critical habitat can help Designation for the Gulf of Maine, New measures provided pursuant to this Act focus the efforts of other conservation York Bight, and Chesapeake Bay are no longer necessary . . .’’ (16 U.S.C. partners (e.g., State and local Distinct Population Segments of 1532(3)). Therefore, critical habitat is governments, individuals and Atlantic Sturgeon (Acipenser the habitat essential for the species’ nongovernmental organizations). oxyrinchus oxyrinchus), which was recovery. However, section 3(5)(C) of Accordingly, our step-wise approach prepared by King and Associates, the ESA clarifies that except in those for identifying potential critical habitat Incorporated. These supporting circumstances determined by the areas for the Gulf of Maine, New York documents are available on the Federal Secretary, critical habitat shall not Bight, and Chesapeake Bay DPSs eRulemaking Portal at http:// include the entire geographical area included the following: (1) Identify the www.regulations.gov. Electronic copies which can be occupied by the physical and biological features can also be obtained at http:// threatened or endangered species. essential to the conservation of the DPS www.greateratlantic.fisheries.noaa.gov/ As described in section 4(b)(2) of the and which may require special protected/atlsturgeon/index.html or ESA, we are required to designate management considerations or upon request (see ADDRESSES). critical habitat based on the best protection; (2) identify specific areas We invite the submission of available scientific data and after taking where those features occur within the information that may help to identify into consideration the economic impact, occupied geographic range of a other physical or biological features. For impact on national security, and any particular DPS; (3) identify any example, while we know that there are other relevant impact, of specifying any unoccupied habitat essential to the specific estuarine areas that sturgeon particular area as critical habitat. conservation of a particular DPS; (4) often use for foraging (e.g., the mouth of Section 4(b)(2) provides us with consider economic, national security, or the Merrimack and Saco rivers), and we discretion to exclude particular areas any other impacts of designating critical can identify aggregation areas (e.g., off from a designation if the benefits of habitat and determine whether to of western Long Island, New York) and excluding that area outweigh the exercise our discretion to exclude any general movement patterns in the benefits of including it in the particular areas; and (5) determine marine environment (e.g., typically designation, unless failure to designate whether any area that contains essential

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features is covered under an INRMP that ranging in temperature from 13 °C to 26 Peterson, 2010). Juveniles occur in provides a conservation benefit to the °C, and hard bottom substrate such as oligohaline waters (salinity of 0.5 to 5 DPS. cobble, coarse sand, hard clay, and parts per thousand) and mesohaline bedrock (Ryder, 1888; Dees, 1961; waters (salinity of 5 to 18 parts per Biology and Habitat of the Gulf of Vladykov and Greeley, 1963; Scott and thousand) of the natal estuary during Maine, New York Bight, and Crossman, 1973; Gilbert, 1989; Smith growth and development. They will Chesapeake Bay DPSs of Atlantic and Clugston, 1997; Bain et al. 2000; eventually move into polyhaline waters Sturgeon Collins et al., 2000; Caron et al., 2002; (salinity of 18–30 parts per thousand) Although there is considerable Hatin et al., 2002; Mohler, 2003; Greene before emigrating to the marine variability among species, all sturgeon et al., 2009; Balazik et al. 2012; Hager environment. Larger, presumably older, species (order Acipenseriformes) have et al. 2014). Water depth leading to juveniles occur across a broader salinity some common life history traits. They spawning sites may be highly variable. range than smaller, presumably all: (1) Occur within the Northern Since the exact location of spawning is younger, juveniles (Hatin et al., 2007; Hemisphere; (2) spawn in freshwater unknown, spawning depth is also McCord et al., 2007; Munro et al., 2007; over hard bottom substrates; (3) uncertain. Atlantic sturgeon in NMFS and USFWS, 2007; Sweka et al., generally do not spawn annually; (4) are spawning condition have been tracked 2007; Greene et al., 2009; Calvo et al., benthic foragers; (5) mature relatively and captured near presumed spawning 2010). late and are relatively long lived; and, habitat at depths up to 27 m (Borodin The distribution of Atlantic sturgeon (6) are relatively sensitive to low 1925; Dees 1961; Scott and Crossman juveniles in the natal estuary is a dissolved oxygen levels (Dees, 1961; 1973; Shirey et al. 1999; Bain et al. function of physiological development Vladykov and Greeley, 1963; 2000; Hatin et al., 2002; Balazik et al., and habitat selection based on water Klyashtorin, 1976; Bemis and Kynard, 2012; Hager et al., 2014). quality factors of temperature, salinity, 1997; Sulak and Randall, 1999; Billard Within minutes of being fertilized, the and dissolved oxygen, which are inter- and Lecointre, 2001; Secor and eggs become sticky and adhere to the related environmental variables. In Niklitschek, 2002; Pikitch et al., 2005). substrate for the relatively short and laboratory studies, juveniles less than a Atlantic sturgeon have all of these temperature-dependent period of larval year old (also known as young-of-year) traits. They occur along the eastern development (Ryder, 1888; Vladykov had reduced growth at 40 percent coast of North America from Hamilton and Greeley, 1963; Murawski and dissolved oxygen saturation with Inlet, Labrador, Canada, to Cape Pacheco, 1977; Smith et al., 1980; Van salinity of 8 and 15 parts per thousand Canaveral, Florida, USA (Bigelow and den Avyle, 1984; Mohler, 2003). In and temperature at 12 °C, 20 °C, and 28 Welsh, 1924; Dees, 1961; Vladykov and hatchery studies, hatching occurred °C. They grew best at 70 percent Greeley, 1963; Scott and Scott, 1988; approximately 60 hours after egg dissolved oxygen saturation with NMFS and USFWS, 2007; T. Savoy, CT deposition at water temperatures of 20 salinity of 8 and 15 parts per thousand DEEP, pers. comm.). They have a °C to 21 °C and 96 hours after egg and temperature of 12 °C and 20 °C (i.e., lifespan of up to 60 years, although the deposition with a water temperature of dissolved oxygen concentrations greater typical lifespan is probably much approximately 18 °C (Smith et al., 1980; than 6.5 mg/L), and selected for shorter (Sulak and Randall, 2001; J. Fletcher, USFWS pers. comm. in conditions that supported growth Balazik et al., 2010). As described in the Mohler, 2003). (Niklitschek and Secor, 2009; Status Review, Atlantic sturgeon reach Larval Atlantic sturgeon (i.e., less Niklitschek and Secor, 2010). Similar maturity at about 5 to 34 years of age, than 4 weeks old, with total lengths less results were obtained for age-1 juveniles after years of moving between marine than 30 mm; Van Eenennaam et al., (i.e., greater than 1 year old and less waters and coastal estuaries, and spawn 1996) are assumed to inhabit the same than 2 years old), which have been in freshwater of tidal-affected rivers areas where they were spawned and live shown to tolerate salinities of 33 parts every 1 to 5 years (males) or 2 to 5 years at or near the bottom (Ryder, 1888; per thousand (e.g., a salinity level (females) (NMFS and USFWS, 2007). Smith et al., 1980; Bain et al., 2000; associated with seawater), but grow Analysis of stomach contents for adults, Kynard and Horgan, 2002; Greene et al., faster in lower salinity waters subadults (i.e., sexually immature 2009). The best available information for (Niklitschek and Secor, 2009; Allen et Atlantic sturgeon that have emigrated behavior of larval Atlantic sturgeon is al., 2014). from the natal estuary), and juveniles described from hatchery studies. Upon Once suitably developed, Atlantic (i.e., sexually immature Atlantic hatching, larvae are nourished by the sturgeon leave the natal estuary and sturgeon that have not yet emigrated yolk sac, are mostly pelagic (e.g., exhibit enter marine waters (i.e., waters with from the natal estuary) confirms that a ‘‘swim-up and drift-down’’ behavior in salinity greater than 30 parts per Atlantic sturgeon are benthic foragers hatchery tanks; Mohler, 2003), and thousand) which marks the beginning of (Ryder, 1888; Bigelow and Schroeder, move away from light (i.e. negative the subadult life stage. In the marine 1953; Johnson et al., 1997; Secor et al., photo-taxis; Kynard and Horgan, 2002; environment, subadults mix with adults 2000; NMFS and USFWS, 2007; Mohler, 2003). Within days, larvae and subadults from other river systems Guilbard et al., 2007; Hatin et al., 2007; exhibit more benthic behavior until the (NMFS and USFWS, 2007; Grunwald et Savoy, 2007; Dzaugis, 2013; McLean et yolk sac is absorbed at about 8 to 10 al., 2008; Dunton et al., 2010; Erickson al., 2013). days post-hatching (Kynard and Horgan, et al., 2011; Dunton et al., 2012; Wirgin An anadromous species, Atlantic 2002; Mohler, 2003). Post-yolk sac et al., 2012; Waldman et al., 2013; sturgeon are spawned in freshwater of larvae occur in the water column but O’Leary et al., 2014, Wirgin et al., rivers that flow into a coastal estuary. feed at the bottom of the water column 2015a; Wirgin et al., 2015b). Atlantic Tagging records and the relatively low (Mohler, 2003; Richardson et al., 2007). sturgeon travel long distances in marine rate of gene flow reported in population The next phase of development, waters, aggregate in both ocean and genetic studies provide evidence that referred to as the juvenile stage, lasts estuarine areas at certain times of the Atlantic sturgeon return to their natal months to years in brackish waters of year, and exhibit seasonal coastal river to spawn (NMFS and USFWS, the natal estuary (Hatin et al., 2007; movements in the spring and fall 2007). Spawning sites are well- NMFS and USFWS, 2007; Greene et al., (NMFS and USFWS, 2007; Dunton et oxygenated areas with flowing water 2009; Calvo et al., 2010; Schueller and al., 2010; Dunton et al., 2012; Erickson

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et al., 2011; Oliver et al., 2013; spring spawning has been obtained for Scientific, pers. comm.) during the Wippelhauser and Squiers, 2015). the Chesapeake Bay DPS (Balazik et al., winter. A recent study of Atlantic Existing and new technologies are 2012; Hager et al. 2014; Kahn et al., sturgeon tracked in the Delaware Bay providing additional information for the 2014). Spring is the only currently found that some of the fish migrating life history and distribution of the known spawning period for the Gulf of from the estuary in the fall remained in Atlantic sturgeon in marine waters Maine and New York Bight DPSs. nearby coastal marine waters within a (Nelson et al., 2013; Breece et al., 2016). However, an 1870’s report of Atlantic plume of water flowing out from the However, there is still a paucity of data sturgeon spawning during August in the estuary, suggesting a continued affinity to inform distribution of subadult and Hudson River (Dovel and Berggren, with the estuary even after emigrating adult Atlantic sturgeon within the 1983) and other historical information from the estuary proper (Oliver et al., marine environment and their habitat (Borodin, 1925; Balazik and Musick, 2013). Further work suggests Atlantic use. 2015) suggests spring and fall spawning sturgeon distribution in the marine The exact spawning locations for Gulf runs were typical, and may still occur environment is affected more by the of Maine, New York Bight and in many areas of the Atlantic sturgeon’s characteristics of the water (e.g., eddies, Chesapeake Bay DPS Atlantic sturgeon range. Given seasonal changes in the coastal upwelling, temperature) than are unknown but inferred based on the location of the salt-wedge for estuarine characteristics of the landscape (e.g., location of freshwater, hard substrate, systems, it is likely that fall spawning depth, substrate) (Breece et al., 2016). water depth, tracking of adults to would occur or would have occurred To identify specific habitats used by upriver locations and the behavior of further upstream than the locations for an Atlantic sturgeon DPS, we adults at those locations, capture of spring spawning in rivers. considered available information that young-of-year and, in limited cases, In addition to providing access to described: (1) Capture location and/or larvae, and historical accounts of where spawning habitat, estuaries provide tracking locations of a subadult or adult the caviar fishery occurred. Based on foraging opportunities for subadult and Atlantic sturgeon identified to its DPS one or more of these lines of evidence, adult Atlantic sturgeon. Stomach by genetic analysis; (2) capture location multiple sites have been identified content analysis of Atlantic sturgeon and/or tracking locations of a subadult within many of the rivers used for captured in coastal estuaries confirm or adult Atlantic sturgeon identified to spawning (NMFS and USFWS, 2007; that sturgeon are foraging in coastal its DPS based on the presence of a tag Simpson, 2008; Hager, 2011; Austin, estuaries (Hatin et al., 2007; Savoy, that was applied when the sturgeon was 2012; Balazik et al., 2012; Breece et al., 2007; Calvo et al., 2010; Wippelhauser, captured as a juvenile in its natal 2013). Spawning sites at different 2012; Dzaugis, 2013; McLean et al., estuary; (3) capture or detection location locations within the tidal-affected river 2013; McLean et al., 2014). The of adults in spawning condition (i.e., would help to ensure successful occurrence of subadult and adults in extruding eggs or milt) or post-spawning spawning given annual changes in the association with the salt front (Brundage condition (e.g., concave abdomen for location of the salt wedge. and Meadows, 1982; Savoy and Shake, females); (4) capture or detection of Male Atlantic sturgeon in spawning 1993; Collins et al. 2000; Savoy and young-of year and other juvenile age condition have been observed to stage in Pacileo, 2003; Hatin et al., 2007; Calvo classes; and, (5) collection of eggs or more saline waters of the coastal estuary et al., 2010; Hager, 2011; Balazik, 2012; larvae. In the case of estuaries of known before moving upriver once the water Breece et al., 2013), a biologically-rich spawning rivers, we assumed based on temperature reaches approximately 6 °C area of estuaries, also suggests use of the available information that a portion (43 °F). They may spend weeks moving estuarine waters for seasonal foraging. of the subadults and adults present upstream and downstream of the At least some Atlantic sturgeon originated from that river and, thus, the presumed spawning area(s) before subadults and adults move between habitats used by subadults and adults in moving back downriver to the lower estuarine environments in the spring a spawning river were indicative of estuary and residing there until through fall (Savoy and Pacileo, 2003; habitats used by the DPS which outmigration in the fall. In contrast, Simpson, 2008; Collins et al., 2000; spawned in the river. Previous studies spawning females move upriver when Balazik et al., 2012). have demonstrated that a combination temperatures are closer to 12 °C to 13 °C The directed movement of subadult of microsatellite and mitochondrial (54 ° to 55 ° F), return downriver and adult Atlantic sturgeon to coastal DNA analyses provide the most accurate relatively quickly, and may leave the estuaries in the spring is reversed in the information to identify an Atlantic estuary and travel to other coastal fall (NMFS and USFWS, 2007; Greene et sturgeon to its DPS, and using estuaries until outmigration to marine al., 2009; Hager, 2011; Erickson et al., mitochondrial analysis, alone, provides waters in the fall (Smith et al., 1982; 2011; Balazik et al., 2012; much lower assignment accuracy given Dovel and Berggren, 1983; Smith, 1985; Wippelhauser, 2012; Oliver et al., 2013). the prevalence of a common Atlantic Bain, 1997; Bain et al., 2000; Collins et The whereabouts of these fish once they sturgeon haplotype (NMFS and USFWS, al., 2000; NMFS and USFWS, 2007; leave coastal estuaries is uncertain. 2007; Wirgin et al., 2012; Waldman et Greene et al., 2009; Balazik et al., 2012; Atlantic sturgeon aggregate off of Long al., 2013). Therefore, when reviewing Breece et al., 2013). Island, New York and off of the the available information on habitats There is a growing body of evidence Virginia/North Carolina coastline used by Atlantic sturgeon, we also that some Atlantic sturgeon river (Laney et al., 2007; Dunton et al., 2015). considered what genetic analyses were populations have two spawning seasons Others have been tracked to the used to assign the sampled sturgeon to comprised of different spawning adults southern extent of the range (T. Savoy, its DPS of origin. (Balazik and Musick, 2015). Evidence of CT DEEP, pers. comm.) while at least The Kennebec River was the only fall spawning for the Carolina and South one was tracked to the more northern known spawning river for the Gulf of Atlantic DPSs was available when the area of the subspecies range, the Back Maine DPS when the DPS was listed as five Atlantic sturgeon DPSs were listed River, Maine, in winter (G. Zydlewski, threatened (NMFS and USFWS, 2007; under the ESA (77 FR 5914; Smith et al., Univ. of Maine, pers. comm.). Two 77 FR 5880, February 6, 2012). 1984; NMFS and USFWS 1998; Collins adults originally tagged in the Delaware Spawning has since been confirmed in et al., 2000). Since the listings, River were detected in the Appomattox the Androscoggin River (Wippelhauser, additional evidence of fall as well as River, Virginia (C. Hager, Chesapeake 2012). The Brunswick Dam at Pejepscot

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Falls, the head-of-tide, is the upstream 74, the former Edwards Dam site New York, and the Atlantic Ocean off of limit of Atlantic sturgeon distribution in (Wippelhauser, 2012). Delaware Bay. The DPS was not the Androscoggin River. The dam is The Merrymeeting Bay and Lower detected in the sampled Atlantic located approximately 10 kilometers Kennebec Estuary are used by post- sturgeon incidentally captured during upstream of the confluence of the spawn adults, juveniles, and other life winter from waters off of Virginia/North Kennebec and Androscoggin rivers stages at least as late as November, and Carolina. (ASMFC, 1998; NMFS and USFWS, some Atlantic sturgeon may overwinter At the time of listing, the Delaware 2007; NMFS, 2013; Wippelhauser and in Merrymeeting Bay (Wippelhauser, and Hudson rivers were the only known Squiers, 2015). The Lockwood Dam at 2012). Sturgeon captured and tagged in spawning rivers for the New York Bight river kilometer 103 is the current the Saco and Penobscot rivers are also DPS of Atlantic sturgeon (Dovel and upstream limit for Atlantic sturgeon in detected in the Kennebec Estuary, Berggren, 1983; Bain, 1998; Kahnle et the Kennebec River; it is located at the typically Merrymeeting Bay and al., 1998; NMFS and USFWS, 2007; site of a natural falls (NMFS and downstream locations, although at least Calvo et al., 2010). In spring 2014, USFWS, 2007). From 1837 to 1999, the one male, captured in the Saco in 2010, several small Atlantic sturgeon were Edwards Dam was the upstream limit of was the single ripe male also captured captured in the Connecticut River (T. Atlantic sturgeon in the Kennebec River. in the Androscoggin suggesting that the Savoy, CT DEEP, pers. comm.). We Located near the head-of-tide, Saco and Penobscot are important presume these to be juveniles less than approximately 29 kilometers habitat areas for the Androscoggin a year old based on their apparent size downstream of the Lockwood Dam at spawning population (Wippelhauser, seen in a photo provided in the Augusta, the Edwards Dam (rkm 74) 2012). However, genetic information Connecticut Weekly Diadromous Fish prevented Atlantic sturgeon from identifying the river of origin of the Report, report date May 20, 2014. accessing historical habitat. Sturgeon Atlantic sturgeon is not yet available. Though it was previously thought that were sighted above the former Edwards While there is no current evidence the Atlantic sturgeon population in the Dam site after removal of the dam and that Atlantic sturgeon are spawning in Connecticut had been extirpated (Savoy in June 2005, an Atlantic sturgeon was Gulf of Maine rivers other than the and Pacileo, 2003; NMFS and USFWS, incidentally captured at river kilometer Kennebec and Androscoggin, captures 2007), capture of these juvenile Atlantic 102 (NMFS and USFWS, 2007; of sturgeon in the Merrimack and sturgeon strongly suggests that Wippelhauser, 2012). Penobscot Rivers as well as the presence spawning is occurring in this river. For Substrate type in the Kennebec of the features necessary to support the Housatonic River, the 1998 and 2007 estuary is largely sand and bedrock reproduction and recruitment in these status reviews for Atlantic sturgeon (Fenster and Fitzgerald, 1996; Moore rivers indicate that there is the potential described information for historical and Reblin, 2008). Mesohaline waters for spawning to occur (Kieffer and presence of Atlantic sturgeon in that occur upstream of Doubling Point Kynard, 1993; Fernandes et al., 2010; river, including Whitworth’s (1996) during summer low flows, transitioning Wippelhauser, 2012). The 1998 and reference to a large fishing industry for to oligohaline waters and then 2007 status reviews for Atlantic Atlantic sturgeon (NMFs and USFWS, essentially tidal freshwater from Chops sturgeon described information for 1998; NMFS and USFWS, 2007). Since Point (the outlet of Merrymeeting Bay) presence of Atlantic sturgeon in the the commercial fisheries targeted upriver to the head-of tide on the Piscataqua River, including capture of a spawning sturgeon, historical captures Kennebec and Androscoggin rivers large female Atlantic sturgeon in of sturgeon in the Housatonic River as (ASMFC, 1998; Kistner and Pettigrew, spawning condition in 1990. The well as the presence of the features 2001). A thorough description of the presence of this female (NMFS and necessary to support reproduction and Kennebec Estuary is provided in Moore USFWS, 1998; ASSRT, 2007) as well as recruitment in this river indicates that and Reblin 2008. the presence of the features necessary to there is the potential for spawning to During the period 1977–2001, support reproduction and recruitment occur in the Housatonic. Atlantic sturgeon in spawning condition in this river indicates that there is the The Hudson River is one of the most (i.e., ripe males releasing sperm) or of potential for spawning to occur in the studied areas for Atlantic sturgeon. The size presumed to be sexually mature Piscataqua. upstream limit for Atlantic sturgeon on adults (i.e., greater than 150 cm total Genetic information is available for the Hudson River is the Federal Dam at length) were caught between river Atlantic sturgeon captured in six the fall line, approximately river kilometers 52.8 and 74 of the Kennebec specific areas of the marine range: kilometer 246 (Dovel and Berggren, River during the months of June and Minas Basin, Bay of Fundy, Canada; the 1983; Bain, 1998; Kahnle et al., 1998; July, the likely spawning season. From Connecticut River estuary; Long Island Everly and Boreman, 1999). Recent 2009 to 2011, 31 sturgeon, including 6 Sound; the Atlantic Ocean off of tracking data indicate Atlantic sturgeon ripe males, were caught in the Kennebec Rockaway, New York; the Atlantic presence at this upstream limit (D. Fox, River between river kilometers 70 and Ocean off of Delaware Bay; and, the DESU, pers. comm.). Sturgeon occurring 75 (Wippelhauser, 2012; Wippelhauser Atlantic Ocean off of Virginia/North in the upstream limits of the river are and Squiers, 2015). Sturgeon in the Carolina (Laney et al., 2007; Wirgin et suspected, but not yet confirmed, to Upper Kennebec Estuary (defined as al., 2012; Waldman et al., 2013; O’Leary belong to the New York Bight DPS. river kilometer 45 to river kilometer 74 et al., 2014; Wirgin et al., 2015a). Spawning may occur in multiple sites at head-of tide in the cited document) Atlantic sturgeon belonging to the Gulf within the river (Dovel and Berggren, repeatedly moved between river of Maine DPS comprised 35 percent of 1983; Van Eenennaam et al., 1996; kilometers 48 and 75 (Wippelhauser, the Minas Basin, Bay of Fundy samples Kahnle et al., 1998; Bain et al., 2000). 2012). An additional eight sturgeon, collected in the summer, suggesting this The area around Hyde Park including one ripe male, were caught in is an important foraging area for the (approximately river kilometer 134) is the Androscoggin in June and July of Gulf of Maine DPS. The DPS comprised considered a likely spawning area based 2009–2011 (Wippelhauser, 2012). Three less than 2 percent to 14.5 percent of on scientific studies and historical larvae were also captured in the Upper Atlantic sturgeon sampled in the records of the Hudson River sturgeon Kennebec Estuary, 1 to 1.6 river Connecticut River, Long Island Sound, fishery (Dovel and Berggren, 1983; Van kilometers upstream of river kilometer the Atlantic Ocean off of Rockaway, Eenennaam et al., 1996; Kahnle et al.,

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1998; Bain et al., 2000). Habitat one year using a passive acoustic array occur most predominantly in marine conditions at the Hyde Park site are (Calvo et al., 2010; Fisher, 2011). The waters in areas off New York and the described as freshwater year round with data collected indicate this life stage Mid-Atlantic Bight. substrate, including bedrock, and waters makes use of Delaware River habitats At the time of listing, the James River depths of 12 to 24 meters (Bain et al., from river kilometers 105 to 199 with was the only known spawning river for 2000). Similar conditions occur at river seasonal changes in distribution (Fisher, the Chesapeake Bay DPS (NMFS and kilometer 112, an area of freshwater and 2009; Calvo et al., 2010; Fisher, 2011). USFWS, 2007; Hager, 2011; Balazik et water depths of 21 to 27 meters (Bain et For example, during the winter months, al., 2012). Since the listing, spawning al., 2000). some remained around river kilometer has been confirmed to occur in the Catches of Atlantic sturgeon less than 134 (i.e., the Marcus Hook area) while Pamunkey River, a tributary of the York 63 cm fork length suggest that these others moved upstream or downstream, River (Hager et al., 2014; Kahn et al., sexually immature fish utilize the exhibiting migrations in and out of the 2014). Spawning is also suspected to be Hudson River estuary from the Tappan area (Calvo et al., 2010; Fisher, 2011). occurring in Marshyhope Creek, a Zee (river kilometer 40) through Overall, the studies demonstrated the tributary of the Nanticoke River, based Kingston (river kilometer 148) (Dovel complexity of habitat needs for juvenile on the presence of adult sturgeon in and Berggren, 1983; Haley, 1999; Bain et Atlantic sturgeons in the natal estuary spawning condition in areas and at al., 2000). Seasonal movements of the during the first 1 to 2 years. In contrast times when spawning would be immature fish are apparent as they to juveniles, subadult Atlantic sturgeon expected to occur (Maryland DNR, web primarily occupy waters from river occur further downriver in polyhaline article, September 17, 2014). kilometers 60 to 107 during summer waters of the Bay and River (Brundage Adult Atlantic sturgeon enter the months and then move downstream as and Meadows, 1982; Lazzari et al., 1986; James River in the spring, with at least water temperatures decline in the fall, Shirey et al., 1997; Shirey et al., 1999; some eventually moving as far upstream primarily occupying waters between Simpson, 2008; Brundage and O’Herron, as Richmond (river kilometer 155), river kilometers 19 to 74 (Dovel and 2009; Calvo et al., 2010; Fisher, 2011). which is also the head-of-tide and close Berggren, 1983; Haley, 1999; Bain et al., The Connecticut River has long been to the likely upstream extent of Atlantic 2000). In a separate study, Atlantic known as a seasonal aggregation area for sturgeon in the river, given the presence sturgeon ranging in size from 32 to 101 subadult Atlantic sturgeon, and both of Boshers Dam at the fall line cm fork length were captured at highest historical and contemporary records (approximately river kilometer 160) concentrations during spring in soft- document presence of Atlantic sturgeon (Bushnoe et al., 2005; Hager, 2011; deep areas of Haverstraw Bay, even in the river as far upstream as Hadley, Balazik et al., 2012). Adults disperse though this habitat type comprised only MA (Savoy and Shake, 1993; Savoy and through downriver sites and begin to 25 percent of the available habitat in the Pacileo, 2003; NMFS and USFWS, move out of the river in late September Bay (Sweka et al., 2007). 2007). The Enfield Dam located along to early October, occupy only lower In the Delaware River, there is the fall line at Enfield, CT prevented river sites by November, and are evidence of Atlantic sturgeon presence upstream passage of Atlantic sturgeon undetected on tracking arrays in the from the mouth of the Delaware Bay to from 1827 until 1977 when it was lower river by December, suggesting that the head-of-tide at the fall line near breached (NMFS and USFWS, 2007). the sturgeon leave the river for the Trenton on the New Jersey side and Although Atlantic sturgeon may winter (Hager, 2011; Balazik et al., Morrisville on the Pennsylvania side of generally remain below the fall line, an 2012). the River, a distance of 220 river Atlantic sturgeon was captured at the The availability of hard-bottom kilometers (Shirey et al., 1997; Holyoke Dam fish lift in 2006, upstream habitat remains relatively limited in the Brundage and O’Herron, 2007; Simpson, of Enfield (NMFS and USFWS, 2007). James River and appears to be 2008; Calvo et al., 2010; Fisher, 2011; As noted previously, the capture of significantly reduced compared to the Breece et al., 2013). There are no dams juvenile Atlantic sturgeon in the amount of available hard-bottom habitat on the Delaware River and an Atlantic Connecticut River in May 2014 (T. described in historic records (Bushnoe sturgeon carcass was found as far Savoy, CT DEEP, pers. comm.; et al., 2005; Austin, 2012). In general, upstream as Easton, PA in 2014 (M. Connecticut Weekly Diadromous Fish tracked adults occurred further Fisher, DE DNREC, pers. comm.), Report, report date May 20, 2014) upstream during the late summer and suggesting that sturgeon can move suggests spawning may be occurring in early fall residency (e.g., river kilometer beyond the fall line. the river. 108 to river kilometer 132; Balazik et al., The presence of hard bottom habitat, The genetics information for Atlantic 2012) than during the spring and early the location of the salt-wedge in April sturgeon captured in six specific areas summer residency (e.g., river kilometer through July, and tracking of adult of the marine range demonstrated that 29 to river kilometer 108; Hager, 2011), Atlantic sturgeon in spawning condition Atlantic sturgeon belonging to the New suggesting two different spawning areas suggests that spawning habitat for York Bight DPS were present in each depending on season. Atlantic sturgeon occurs within the area. In addition, the New York Bight The capture of adult Atlantic sturgeon Delaware River between river kilometer DPS was the most represented DPS in in spawning condition in the low 125 (near Claymont, Delaware) and the each collection, comprising 55 percent salinity waters of the Pamunkey River, fall line at river kilometer 211 to 87 percent of the sturgeon sampled in a major tributary of the York River, in (landmarks of Trenton, New Jersey, and each area, with the exception of the August 2013, and subsequent genetic Morrisville, Pennsylvania) Minas Basin collection where the New testing demonstrate that there is a (Sommerfield and Madsen, 2003; York Bight DPS comprised only 1 to 2 spawning population of Atlantic Simpson 2008; Breece et al., 2013). percent of the sampled sturgeon (Laney sturgeon in the Pamunkey River (Hager Twenty Atlantic sturgeon less than 30 et al., 2007; Wirgin et al., 2012; et al., 2014; Kahn et al., 2014). The York cm fork length (26.2 to 34.9 cm total Waldman et al., 2013; O’Leary et al., River is 55 kilometers long from its length) and presumed to be less than 2014; Wirgin et al., 2015a). The results mouth, after which it divides into two one year old were captured in the suggest that New York Bight DPS major tributaries, the Mattaponi and the Delaware River from September through Atlantic sturgeon travel great distances, Pamunkey Rivers (Bushnoe et al., 2005; November 2009 and tracked for up to including into Canadian waters, but Friedrichs, 2009; Reay, 2009). The

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transition to freshwater typically occurs provide evidence of fall spawning in the within the range of a DPS if there were: within these tributaries (Friedrichs, James River (NMFS and USFWS; 2007; (1) Presence of Atlantic sturgeon 2009; Reay, 2009). Bushnoe et al. (2005) Hager, 2011; Balazik et al., 2012). belonging to that DPS in that area; (2) previously reviewed available Similar evidence was found for adult presence of Atlantic sturgeon in a information on substrate, salinity, and sturgeon captured in the Pamunkey similar area within the boundaries of dissolved oxygen for the Pamunkey and River in mid to late August 2013, and the otherwise established DPSs range; Mattaponi rivers and concluded that adult sturgeon captured in Marshyhope and, for rivers, (3) all areas downstream Atlantic sturgeon spawning habitat was Creek in late August 2014 (Maryland of the farthest known upstream location likely present in each river. DNR, web article, September 17, 2014). of Atlantic sturgeon belonging to that For the Susquehanna and Potomac All of these instances provide evidence DPS in that river. Areas were identified Rivers, the 1998 and 2007 Atlantic that Chesapeake DPS Atlantic sturgeon as unoccupied by a DPS if the area was sturgeon status reviews provided the spawn in the fall. completely inaccessible to Atlantic information for presence of Atlantic The genetics information for Atlantic sturgeon. sturgeon in the rivers, including: (1) sturgeon captured in six specific areas Genetic analyses indicate the Historical newspaper accounts of large of the marine range demonstrates that presence of Atlantic sturgeon belonging sturgeon in the lower reaches of the Atlantic sturgeon belonging to the to the Gulf of Maine, New York Bight, Susquehanna River during the period Chesapeake Bay DPS were present in at and Chesapeake Bay DPS in many parts 1765 to 1895; (2) personal least four of the sampled areas: The of the marine range including the Bay of communication of a limited but more Connecticut River, Long Island Sound, Fundy, the Connecticut River Estuary, recent sturgeon fishery on the the Atlantic Ocean off of Rockaway, Long Island Sound, the New York Bight, Susquehanna near Perryville, Maryland New York, and the Atlantic Ocean off of and coastal waters from Delaware to (R. St. Pierre, USFWS, personal comm.); Delaware Bay. The DPS comprised North Carolina (Waldman et al., 1996; (3) several sightings of sturgeon near the approximately 5 percent to 21 percent of Laney et al., 2007; Dunton et al., 2010; Susquehanna River mouth during the the Atlantic sturgeon sampled in these Dunton et al., 2012; Wirgin et al., 2012; period 1978 to 1987; (4) a historical areas (Waldman et al., 2013; O’Leary et Waldman et al., 2013; O’Leary et al., fishery for Atlantic sturgeon in the al., 2014; Wirgin et al., 2015a). The 2014; Wirgin et al., 2015a). In addition, Potomac; and (5) observations of a large Chesapeake Bay DPS was not detected tracking and tagging studies indicate the mature female Atlantic sturgeon in the in the relatively small number of presence of Atlantic sturgeon Potomac River in 1970 ((NMFS and samples collected from Atlantic throughout the marine range (Vladykov USFWS, 1998; NMFS and USFWS, sturgeon captured in the winter off of and Greeley, 1963; Holland and 2007). Since the commercial fisheries North Carolina (Laney et al., 2007), and Yelverton 1973; Dovel and Berggren, targeted spawning sturgeon, historical comprised no more that 1 percent of 1983; Gilbert 1989; Savoy and Pacileo, captures of sturgeon in the Susquehanna Atlantic sturgeon sampled in the Minas 2003; Stein et al. 2004; Eyler, 2006; and Potomac Rivers, as well as the Basin in the summer (Wirgin et al., Laney et al., 2007; Dunton et al., 2010; presence of the features necessary to 2012). The results suggest that Dunton et al., 2012; Oliver et al., 2013). support reproduction and recruitment Chesapeake Bay DPS Atlantic sturgeon Based on our review of the literature in each river, indicate that there is the travel great distances, including into and other available data, we concluded potential for spawning to occur in both Canadian waters, but occur most that Atlantic sturgeon: Typically occur the Susquehanna and Potomac. predominantly in marine waters of the in marine waters within the 50 m depth The 1998 and 2007 status reviews for New York and Mid-Atlantic Bight. contour, but also occur in deeper marine Atlantic sturgeon described information waters; occur in many coastal sounds Geographical Area Occupied by Each for presence of Atlantic sturgeon in the and bays from the Maine/Canada border DPS Rappahannock River, including to Cape Canaveral, Florida, regardless of commercial landings data from the Consistent with our past practice, we whether or not the sound or bay is part 1880s and incidental captures reported interpret ‘‘geographical area occupied’’ of an estuary of a known spawning to the U.S. Fish and Wildlife Service for critical habitat designations to mean river; and, occur in tidally-affected Reward Program in the 1990’s (NMFS the range of the listed entity (e.g., rivers along the coast. and USFWS 1998; NMFS and USFWS, species, subspecies or DPS) at the time The ‘‘geographical area occupied’’ is 2007). Most recently, in September of listing (45 FR 13011; February 27, only aquatic habitat (e.g., below the high 2015, researchers captured a male 1980). In February 2016, NMFS and the tide line). In addition, certain natural Atlantic sturgeon in spawning condition USFWS published a joint final features (e.g., large waterfalls) and dams in the Rappahannock River (M. Balazik, rulemaking that included a regulatory are impassable barriers to sturgeon. Virginia Commonwealth University, definition for ‘‘geographical area Therefore, we consider those parts of pers. comm.). The historical and occupied’’ (81 FR 7417, February 11, the range that are currently inaccessible contemporary accounts of Atlantic 2016). The new definition provides to Atlantic sturgeon due to dams, other sturgeon in the Rappahannock River clarity to the critical habitat designation manmade structures, or natural features (NMFS and USFWS, 1998; ASSRT, process, but does not change how we to be unoccupied, and not part of the 2007), as well as the presence of the approached critical habitat designations. geographic area occupied by the DPS at features necessary to support The marine range of the Gulf of the time of listing. reproduction and recruitment in this Maine, New York Bight, and river indicate that there is the potential Chesapeake Bay DPSs, including coastal Physical and Biological Features for spawning to occur in the bays and estuaries, is Hamilton Inlet, Essential to Conservation That May Rappahannock. Labrador, Canada, to Cape Canaveral, Require Special Management The condition of Atlantic sturgeon Florida (77 FR 5880, February 6, 2012). Considerations or Protections captured in the late summer-fall in the The listing rule also identified the As described above, critical habitat is James River (e.g., adults expressing milt known spawning rivers for each of these defined as those specific areas in the or eggs), the rapid upstream movement DPSs, but it did not describe the specific geographical area occupied that (1) have of adults in the fall, and the aggregation in-river range for any of the DPSs. the physical or biological features of adults relative to the salt wedge Therefore, areas were considered to be essential to the conservation of the

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listed entity, and (2) may require special relating to principles of conservation concentrations that reduce their growth management considerations or biology, such as patch size, distribution rate, even when at concentration levels protections. Each of these two prongs distances, and connectivity (50 CFR higher than necessary for their survival must be met when designating critical 424.02). The term ‘‘special management (Breitburg 2002; EPA, 2003). Lab studies habitat within the occupied considerations or protection’’ is defined have shown that a dissolved oxygen geographical area. If we identify as the methods or procedures useful in concentration of about 6.5 mg/L physical or biological features that are protecting the physical or biological supports growth and habitat use of essential to the conservation of the features essential to the conservation of juvenile Atlantic sturgeon less than two listed entity, but there are no special the listed species (50 CFR 424.02). In years old (Niklitschek and Secor, 2009; management considerations or addition, the term ‘‘may’’ in the phrase Niklitschek and Secor, 2010; Allen et protections that may be required, then ‘‘may require special management al., 2014). The complex relationship we do not designate critical habitat considerations or protections’’ was the between dissolved oxygen, temperature, based on those physical or biological focus of two cases in Federal district and salinity, as well as other factors that features. Finally, we do not designate courts that ruled that features can meet can affect dissolved oxygen levels in critical habitat based solely on the this provision because of either a estuaries (e.g., water depth and mixing), presence of the listed entity. The present requirement for special makes it difficult for us to specify water presence of the listed entity can, management considerations or quality parameters necessary to support however, help us identify the essential protection or possible future Atlantic sturgeon use of reproduction physical or biological features. For requirements (see Center for Biol. and recruitment habitat. The EPA’s example, repeated use of an area by the Diversity v. Norton, 240 F. Supp. 2d guidance on ambient water quality listed entity suggests the presence of 1090 (D. Ariz. 2003); Cape Hatteras criteria for dissolved oxygen for the essential physical or biological features. Access Preservation Alliance v. DOI, Chesapeake Bay recommends dissolved We determined that a key 344 F. Supp. 108 (D.D.C. 2004)). oxygen concentrations of greater than 6 conservation objective for the Gulf of Atlantic sturgeon are estuarine- mg/L, based on a seven-day mean, in Maine, New York Bight, and dependent, anadromous fish that tidal habitats with salinity of 0 to 0.5 Chesapeake Bay DPSs is to increase the parts per thousand for the growth of require specific estuarine habitat for abundance of each DPS by facilitating larval and juvenile tidal-fresh resident successful reproduction and increased successful reproduction and fish, including Atlantic sturgeon (EPA, recruitment. Adults require unimpeded recruitment to the marine environment. 2003). This concentration has been access (e.g., suitable water depth to be We know that each DPS is at a low level shown to increase the likelihood of able to move freely and a lack of of abundance and successful habitat use by Atlantic sturgeon obstructions) to and from all spawning reproduction and recruitment, which juveniles less than two years old sites. In addition, spawning males are essential to the conservation of the (Niklitschek and Secor 2009; require unimpeded access to search for species, occur in a limited number of Niklitscheck and Secor, 2010). Since spawning females throughout the rivers for each DPS. Since the listing, these early age groups are more additional rivers have either been spawning season. Fertilized eggs require sensitive to dissolved oxygen levels confirmed to support spawning, or are freshwater, hard, clean substrate to than older, larger juveniles, subadults, suspected of supporting spawning for adhere to, and flowing water that helps and adults, a dissolved oxygen the Gulf of Maine, New York Bight, and to disperse and aerate the eggs. Larval concentration of 6 mg/L supports Chesapeake Bay DPSs (Wippelhauser, Atlantic sturgeon (less than 4 weeks old habitat use by all age groups. Therefore, 2012; Hager et al., 2014; Kahn et al., and less than 30 mm total length), the physical features essential for 2014; T. Savoy, CT DEEP, pers. comm.). assumed to inhabit the same freshwater reproduction and recruitment are: Nevertheless, the number of known areas where they were spawned, require • Hard bottom substrate (e.g., rock, spawning rivers for each DPS is still hard substrate with interstitial spaces cobble, gravel, limestone, boulder, etc.) limited compared to the four to six that provide refuge from predators. The in low salinity waters (i.e., 0.0 to 0.5 rivers for each DPS in which spawning relatively lengthy juvenile phase parts per thousand range) for settlement occurred in the past (NMFS and requires developing Atlantic sturgeon of fertilized eggs, refuge, growth, and USFWS, 2007). Further, we do not know have access to aquatic habitat with a development of early life stages; how successful reproduction is for any gradual downstream salinity gradient of • Aquatic habitat with a gradual of the known spawning rivers (e.g., we 0.5 to 30 parts per thousand (e.g., downstream salinity gradient of 0.5 to do not have counts of the number of inclusive of oligohaline, mesohaline, 30 parts per thousand and soft substrate juveniles of each DPS or spawning river and polyhaline waters), and areas of soft (e.g., sand, mud) downstream of that recruit to the marine environment, substrate that provide an environment spawning sites for juvenile foraging and compared to the number of fertilized for benthic prey necessary for juvenile physiological development; eggs that hatched). foraging. Last, Atlantic sturgeon juvenile • Water of appropriate depth and The term ‘‘physical or biological rearing habitat, habitat for spawning absent physical barriers to passage (e.g., features’’ is defined as the features that adults and subadults, and larval habitat locks, dams, reservoirs, gear, etc.) support the life-history needs of the must have sufficient levels of dissolved between the river mouth and spawning species, including, but not limited to, oxygen both before the fish are present sites necessary to support: (1) water characteristics, soil type, (to enable fish to utilize the habitat Unimpeded movement of adults to and geological features, sites, prey, when they migrate to it) and when fish from spawning sites; (2) seasonal and vegetation, symbiotic species or other arrive since Atlantic sturgeon are physiologically dependent movement of features. A feature may be a single particularly sensitive to low oxygen juvenile Atlantic sturgeon to habitat characteristic or a more complex levels and, similar to other fish species, appropriate salinity zones within the combination of habitat characteristics. will avoid habitats that are hypoxic (i.e., river estuary; and (3) staging, resting, or Features may include habitat have insufficient oxygen) (Secor and holding of subadults or spawning characteristics that support ephemeral Niklitschek, 2001; Breitburg, 2002; EPA, condition adults. Water depths in main or dynamic habitat conditions. Features 2003). Oxygen concentrations that fish river channels must also be deep may also be expressed in terms of avoid are approximately equal to enough (e.g., ≥1.2 m) to ensure

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continuous flow in the main channel at necessary for the developing eggs, foraging, and all of the identified prey all times when any sturgeon life stage larvae, and juveniles. are found in soft substrates. However, would be in the river; and The features essential for successful different types of prey were consumed, • Water, especially in the bottom Atlantic sturgeon reproduction may also and different soft substrates were meter of the water column, with the require special management identified for the areas where Atlantic temperature, salinity, and oxygen values considerations or protection as a result sturgeon were foraging (Bigelow and that, combined, support: (1) Spawning; of global climate change. Many Schroeder, 1953; Johnson et al., 1997; (2) annual and interannual adult, communities and commercial facilities NMFS and USFWS, 2007; Guilbard et subadult, larval, and juvenile survival; withdraw water from the rivers al., 2007; Savoy, 2007; Dzaugis, 2013; and (3) larval, juvenile, and subadult containing the features essential to McLean et al., 2013). No data are growth, development, and recruitment Atlantic sturgeon reproduction. Water available to differentiate areas of (e.g., 13 °C to 26 °C for spawning habitat withdrawals during times of low flow preferred prey items or higher prey and no more than 30° C for juvenile can affect the position of the salt wedge, abundance within or across estuaries. rearing habitat, and 6 mg/L dissolved impact the water depth necessary for Adding to our uncertainty of the oxygen for juvenile rearing habitat). successful sturgeon reproduction, and essential features that support The specific oxygen concentration affect water flow. Because dissolved successful foraging for growth and and temperature values are provided as oxygen concentrations increase survival of subadults and adults, examples and guidance to inform the wherever the water flow becomes Atlantic sturgeon move between combinations of temperature, salinity, turbulent, decreasing flow can result in estuarine environments in the spring and oxygen that support successful decreases in dissolved oxygen through fall, and can occur in estuarine reproduction and recruitment. concentrations. Attempts to control environments during the winter as well Temperature, salinity, and oxygen are water during very high flows (e.g., (Savoy and Pacileo, 2003; Simpson, ephemeral by nature, fluctuating daily spilling water from dams upriver of 2008; Collins et al., 2000; Balazik et al., and seasonally in estuaries. Specific Atlantic sturgeon spawning and rearing 2012). For example, subadult Atlantic habitat) can create barriers (e.g., from areas designated as critical habitat based sturgeon spawned in one riverine debris) to upstream and downstream on the four features are not expected to system may utilize multiple estuaries passage of adults and juveniles. have water with oxygen concentration for foraging and growth, including those Therefore, we concluded that the of 6 mg/L and the specific water not directly connected to their natal features essential to the conservation of temperatures at all times and within all river. Due to the paucity of data on their each of the Gulf of Maine, New York parts of the area. estuarine needs and specific habitat or Bight, and Chesapeake Bay DPSs may resource utilization, we could not at this Barriers (e.g., dams) and in-water require special management time identify the physical or biological structures (e.g., tidal turbines) in rivers considerations or protections. features of estuaries for foraging and used by Atlantic sturgeon can damage or For the reasons provided above, we growth that are essential to the destroy bottom habitat needed for have concluded that the habitat features conservation of the Gulf of Maine, New spawning and rearing of juveniles, as that support successful spawning and York Bight or Chesapeake Bay DPSs. well as restrict movement of adults to recruitment of Atlantic sturgeon Subadult and adult Atlantic sturgeon and from spawning grounds, and juveniles to the marine environment are: use marine waters to traverse between prevent juveniles from accessing the full Essential to the conservation of the Gulf estuarine areas, particularly within the range of salinity exposure in the natal of Maine, New York Bight, and 50 meter depth contour. In addition, estuary. Land development, as well as Chesapeake Bay DPSs; within the several congregations of Atlantic commercial and recreational activities geographical area occupied by each sturgeon in the marine environment are on the river, contribute to the DPS; and, may require special known to occur. However, the exact persistence of nutrient loading and management considerations or importance of those areas is not known, sediment deposition, which negatively protection. As such, we used these nor whether Atlantic sturgeon are affect the water quality necessary for features to identify specific areas as drawn to particular areas based on successful spawning and recruitment. potential critical habitat for the Gulf of physical or biological features of the For example, nutrient loading can result Maine, New York Bight, and habitat. Therefore, while we can in unnaturally enhanced growth of Chesapeake Bay DPSs of Atlantic identify general movement patterns and aquatic vegetation or phytoplankton and sturgeon. behavior in the marine environment algal blooms, which disrupt normal We determined another conservation (e.g., aggregating behavior) that may functioning of the ecosystem, causing a objective for the Gulf of Maine, New contribute to subadult and adult variety of problems, including a lack of York Bight, and Chesapeake Bay DPSs is survival, due to the paucity of data on sufficient levels of oxygen that fish, to increase the abundance of each DPS each DPSs’ needs and specific habitat such as Atlantic sturgeon, need to by facilitating increased survival of utilization in the marine environment, survive. Excessive sediment deposition subadults and adults. The ability of we could not at this time identify reduces Atlantic sturgeon egg adherence subadults to find food is necessary for physical or biological features in the on hard spawning substrate and reduces continued survival, growth, and marine environment essential to the interstitial spaces used by larvae for physiological development to the adult conservation of the Gulf of Maine, New refuge from predators. Dredging to life stage. Likewise, given that Atlantic York Bight or Chesapeake Bay DPSs. remove sediment build-up or to sturgeon mature late and do not facilitate vessel traffic may remove or necessarily spawn annually, increased Unoccupied Areas alter hard substrate that is necessary for adult survival would improve the As mentioned, the definition of egg adherence and as refuge for larvae, chances that adult Atlantic sturgeon critical habitat includes areas outside of and may change the water depth, spawn more than once. the geographical area occupied by the resulting in shifts in the salt wedge We considered all studies that have listed entity (i.e., unoccupied areas) at within the estuary or change other collected Atlantic sturgeon stomach the time it is listed if these areas are characteristics of the water quality (e.g., contents. All of the prey species essential to the conservation of the temperature, dissolved oxygen) identified are indicative of benthic listed entity. We do not need to identify

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physical or biological features requiring the Ticonic Falls/Lockwood Dam The physical features that are special management consideration or downstream for 103 river kilometers to essential to successful reproduction and protection within the unoccupied areas where the main stem river discharges at recruitment may require special in order to designate unoccupied areas its mouth into the Atlantic Ocean; (3) management or protection in these as critical habitat. However, the area Androscoggin River main stem from the specific areas because of potential must be essential to the conservation of Brunswick Dam downstream for 10 river adverse impacts from, for example, the the listed species. kilometers to where the main stem river operation of dams, dredging operations, There are riverine areas outside of the drainage discharges into Merrymeeting other construction (e.g., bridge geographical area occupied by the Gulf Bay; (4) Piscataqua River from its construction or repair), and impacts of Maine, New York Bight, and confluence with the Salmon Falls and from development along the river that Chesapeake Bay DPSs as a result of Cocheco rivers downstream for 19 river includes wastewater treatment and dams and natural falls. We considered kilometers to where the main stem river water withdrawals (Hammerson, 2004; whether these unoccupied areas were discharges at its mouth into the Atlantic NMFS and USFWS, 2007; Henshaw, essential to the conservation of the Ocean as well as the waters of the 2011; Breece et al., 2013; 78 FR 1145). respective DPS and concluded that they Cocheco River from its confluence with We identified five critical habitat were not essential because nearly all the Piscataqua River and upstream 5 units for the Chesapeake Bay DPS: (1) known historical habitat is accessible to river kilometers to the Cocheco Falls Susquehanna River from the Conowingo the Gulf of Maine, New York Bight, and Dam, and waters of the Salmon Falls Dam downstream for 16 river kilometers Chesapeake Bay DPSs (NMFS and River from its confluence with the to where the main stem river discharges USFWS, 2007; 77 FR 5880, February 6, Piscataqua River and upstream 6 river at its mouth into the Chesapeake Bay; 2012). kilometers to the Route 4 Dam; and (5) (2) Potomac River from the Little Falls Dam downstream for 189 river Critical Habitat Units Merrimack River from the Essex Dam (also known as the Lawrence Dam) kilometers to where the main stem river Critical habitat must be defined by downstream for 48 river kilometers to discharges at its mouth into the specific limits using reference points where the main stem river discharges at Chesapeake Bay; (3) Rappahannock and lines as found on standard its mouth into the Atlantic Ocean. In River from the U.S. Highway 1 Bridge, topographic maps of the area, and total, these designations encompass downstream for 172 river kilometers to cannot use ephemeral reference points approximately 244 kilometers (152 where the river discharges at its mouth (50 CFR 424.12(c)). When several miles) of aquatic habitat. into the Chesapeake Bay; (4) York River habitats, each satisfying the The physical features essential for from its confluence with the Mattaponi requirements for designation as critical successful reproduction and recruitment and Pamunkey rivers downstream to habitat, are located in proximity to one may require special management or where the main stem river discharges at another, an inclusive area may be protection in these specific areas its mouth into the Chesapeake Bay as designated as critical habitat (50 CFR because of potential adverse impacts well as the waters of the Mattaponi 424.12(d)). from activities such as the operation of River from its confluence with the York The habitat containing the physical dams, dredging operations, other River and upstream to the Virginia State features essential to the conservation of construction (e.g., bridge construction or Route 360 Bridge crossing of the the Gulf of Maine, New York Bight, and repair), and impacts from development Mattaponi River, and waters of the Chesapeake Bay DPSs and that may along the river that includes wastewater Pamunkey River from its confluence require special management or treatment and water withdrawals with the York River and upstream to the protection is aquatic habitat of main (Ceasar et al., 1976; Short, 1992; Kistner Virginia State Route 360 Bridge crossing stem rivers flowing into a coastal and Pettigrew, 2001; Odell et al., 2006; of the Pamunkey River for a total of 192 estuary. We are designating only NMFS and USFWS, 2007; Mohlar, 2008; kilometers of aquatic habitat, (5) James occupied habitat. Atlantic sturgeon Moore and Reblin, 2008; McFarlane, River from Boshers Dam downstream for typically cannot pass dams or natural 2012). 160 river kilometers to where the main features such as waterfalls and rapids We identified four critical habitat stem river discharges at its mouth into found at the fall line of rivers from units for the New York Bight DPS: (1) the Chesapeake Bay at Hampton Roads. Maine through Virginia. Therefore, we Connecticut River from the Holyoke In total, these designations encompass are defining each critical habitat unit by Dam downstream for 140 river approximately 729 kilometers (453 an upriver landmark on the main stem kilometers to where the main stem river miles) of aquatic habitat. river (e.g., the most downriver dam or discharges at its mouth into Long Island The physical features essential for a bridge immediately downriver of the Sound; (2) Housatonic River from the successful spawning and recruitment fall line of that river) and all waters of Derby Dam downstream for 24 river may require special management or the main stem downriver of that kilometers to where the main stem protection in these specific areas landmark to where the waters empty at discharges at its mouth into Long Island because of potential adverse impacts its mouth into an identified water body. Sound; (3) Hudson River from the Troy from activities such as the operation of Lock and Dam (also known as the dams, dredging operations, other Identified Critical Habitat for Each DPS Federal Dam) downstream for 246 river construction (e.g., bridge construction or Based on the physical features that we kilometers to where the main stem river repair), and impacts from development identified as essential for successful discharges at its mouth into New York along the river that includes wastewater spawning and recruitment and the best City Harbor; and (4) Delaware River treatment and water withdrawals available information, we identified five from the crossing of the Trenton- (Bushnoe et al., 2005; CBF, 2006; NMFS critical habitat units for the Gulf of Morrisville Route 1 Toll Bridge, and USFWS, 2007; Friedrichs, 2009; Maine DPS as follows: (1) Penobscot downstream for 137 river kilometers to Reay, 2009; Austin, 2012; SRBC, 2013; River main stem from the Milford Dam where the main stem river discharges at Potomac Conservancy, 2014). downstream for 53 river kilometers to its mouth into Delaware Bay. In total, where the main stem river drainage these designations encompass Military Lands discharges at its mouth into Penobscot approximately 547 kilometers (340 Section 4(a)(3)(B) of the ESA prohibits Bay; (2) Kennebec River main stem from miles) of aquatic habitat. designating as critical habitat any lands

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or other geographical areas owned or provide us with information on future conservative, we added nine controlled by the Department of consultations if we omitted any future consultations to each critical habitat Defense, or designated for its use, that actions likely to affect the proposed unit, and nine to each DPS’s total are subject to an INRMP prepared under critical habitat. Of the types of past number of consultations. We spread the section 101 of the Sikes Act (16 U.S.C. consultations that ‘‘may affect’’ some or costs of these consultations ($5,080 670a), if the Secretary determines in all of the essential features in any unit each) evenly across all critical habitat writing that such a plan provides a of proposed critical habitat, we units included in this proposed rule and benefit to the species for which critical determined that no activities would the companion proposed rule to habitat is proposed for designation. solely affect the essential features. That designate critical habitat for the In February 2014, we requested is, all categories of the activities Carolina and South Atlantic DPSs. This information from the Department of identified have potential routes of resulted in a total cost of $1,474.84 per Defense to assist in our analysis. adverse effects to both Atlantic or critical habitat unit. Specifically, we asked for a list of shortnose sturgeon and the critical We cannot be certain that the facilities that occur within the potential habitat. numbers of informal and formal critical habitat areas and available There were no section 7 consultations consultations involving Atlantic INRMPs for those facilities. There are a for activities in the Housatonic River sturgeon critical habitat in the future limited number of facilities with over the past ten years. Activities that will be exactly the same as the number INRMPs that overlap with the potential have occurred did not trigger the need that would have occurred during the critical habitat areas for the New York for section 7 consultation for a listed past ten years if critical habitat was Bight and Chesapeake Bay DPSs. The ESA species under NMFS jurisdiction designated at the time. We also have no Department of the Army identified the (e.g., shortnose sturgeon), and there is information about the scope, methods, U.S. Military Academy—West Point, no critical habitat designated in the exact location or timing of future New York as a facility that overlapped Housatonic River for any other ESA- actions, which are key factors for with the Hudson River Critical Habitat listed species under NMFS jurisdiction. determining whether an action may Unit of the New York Bight DPS. The Based on this information, the projected adversely affect critical habitat, which Department of the Air Force identified administrative cost of section 7 essential features may be affected, and Joint Base Langley—Eustis, Virginia as a consultations likely to occur over the whether the action may also affect facility that overlapped with the James next ten years as a result of designating Atlantic sturgeon. Similar to economic River Critical Habitat Unit of the the Housatonic River Critical Habitat analyses for other NMFS critical habitat Chesapeake Bay DPS. The Navy Unit was zero. However, the potential designations (e.g., for Gulf sturgeon (IEc, identified Marine Corps Base Quantico, Housatonic River Critical Habitat Unit 2003), and for the southern DPS of green Virginia, and Naval Support Facility contains a federal navigation channel as sturgeon (IEc, 2009)), uncertainty was Dahlgren as facilities that overlapped well as a major highway bridge. Channel addressed by presenting three cost with the Potomac River Critical Habitat dredging, bridge maintenance, and estimate scenarios: Consultations of Unit, and identified Naval Weapons bridge replacement are activities likely low, medium, or high complexity. These Station Yorktown, a complex of three to trigger section 7 consultation if cost estimate scenarios help to facilities, as facilities that overlapped critical habitat for Atlantic sturgeon are demonstrate how changes in the number with the York River Critical Habitat Unit designated in the Housatonic River. We of informal and formal consultations of the Chesapeake Bay DPS. We expect the federal navigation channel and differing percentages of coextensive reviewed the INRMP for each facility will require periodic dredging. Bridge and incremental consultations could and concluded that each INRMP replacement has recently occurred (78 influence the cost projections. The provides a benefit to Atlantic sturgeon FR 1145; January 8, 2013), but we scenarios are: (1) Low administrative and its habitat belonging to the expect that routine maintenance will be section 7 cost estimates, which are respective DPS. Therefore, in required within the next 10 years. based on the assumption that the accordance with section 4(a)(3)(B) of the Therefore, the administrative section 7 numbers of informal and formal ESA, the particular areas of each facility costs as a result of designating the consultations in the future will be the with an approved INRMP that overlaps Housatonic River Critical Habitat Unit same as they were in the past, and that with a proposed critical habitat unit will are unlikely to be zero. Based on the half of the consultations will be co- not be part of the designated critical past history and the likely need for extensive (i.e., initiated as a result of habitat unit. No Department of Defense maintenance, we anticipate up to three listing and critical habitat designation) facilities were identified as overlapping formal consultations will occur over the and half will be incremental (i.e., with potential critical habitat areas of next 10 years for federal agency actions initiated as a result of the critical habitat the Gulf of Maine DPS. that affect the features of the Housatonic designation); (2) medium administrative River Critical Habitat Unit. However, section 7 cost estimates, which are Economic, National Security, and Other consultation would also assess whether based on the assumption that the Relevant Impacts the proposed actions may affect one or numbers of informal and formal The administrative cost of conducting more of the Atlantic sturgeon DPSs. consultations in the future will be the ESA section 7 consultations was Therefore, no incremental same as they were in the past, and that determined to be the primary source of administrative impacts are anticipated they will all be incremental; and, (3) economic impacts as a result of as a result of designating critical habitat high administrative section 7 cost designating critical habitat for the Gulf in the Housatonic River. estimates, which are based on the of Maine, New York Bight, and Nine nationwide consultations with assumption that all consultations in the Chesapeake Bay DPSs. We used the EPA are also expected to occur within next ten years will be formal and consultation record over the past 10 the next 10 years. These consultations incremental. years to identify the types of Federal will involve all listed species and The regulatory baseline conditions, activities that may affect proposed designated critical habitat under including the listing of the Atlantic Atlantic sturgeon critical habitat if NMFS’s jurisdiction, and thus costs sturgeon, will greatly affect the number implemented in the future. We also attributable solely to this proposed rule of incremental consultations. requested that federal action agencies are expected to be very small. To be Specifically, the number of incremental

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consultations will likely be relatively illustrative purposes, the draft economic maintain proper channel and berthing small, because Atlantic sturgeon of a analysis similarly presents low, depths may affect (e.g., remove) the given life stage are likely to be either medium, and high cost estimate substrate that supports foraging, and directly or indirectly affected by the scenarios for project modifications that change the depth affecting salinity (e.g., federal activities projected to occur may need to be made to specific projects as a result of changes to mixing in the within the proposed critical habitat. In as a result of section 7 consultation. The estuarine river or the extent of saltwater general, we expect Atlantic sturgeon of same caveats noted above apply to costs intrusion). However, dredging and a given life stage could occur year round associated with modifications, i.e., maintaining and/or updating the pier in the particular areas proposed for while the three broad categories of costs structures also may affect the species. designation. Therefore, the section 7 based on broad assumptions provide a For example, construction to maintain consultations we anticipate to occur potential range of costs, in most and/or update pier structures can will need to evaluate potential effects to instances, modifications will occur as a produce sounds that disrupt normal both the Atlantic sturgeon DPS present result of coextensive impacts. It is behaviors such as sturgeon foraging, in the area and the critical habitat since extremely unlikely that modifications staging, and spawning. Dredging may impacts will be co-extensive. Because that would be required to avoid injure or kill sturgeon that come into the high and medium administrative destruction or adverse modification of contact with the gear (e.g., older costs estimates both assumed that all critical habitat would not also be juveniles passing through as they leave project consultations would be required because of adverse effects to the natal river, adults traveling through incremental, we consider the low the species. Details of the cost the area to and from spawning areas, administrative cost estimates to be the projections and the number of past and subadults traveling through the most realistic costs estimates. formal and informal consultations for area). Therefore, we determined that any Based on the Draft Economic Impacts each critical habitat unit of the Gulf of resulting consultations will likely be Analysis, the projected low Maine, New York Bight, and coextensive. administrative costs of designating all of Chesapeake Bay DPSs are provided in The Navy expressed concern that the Gulf of Maine DPS critical habitat the draft economic analysis and the designating the Delaware River critical units total $816,574.20. The individual Draft Biological Information and 4(b)(2) habitat unit in the area surrounding the low costs for the five critical habitat Source Document. Philadelphia Naval Yard Annex (three units range from $54,274.84 for the The Navy expressed concern that specific areas), will impact national Piscataqua River Critical Habitat Unit to designating the Kennebec River and security. The Navy described the $305,874.84 for the Kennebec River Piscataqua River critical habitat units, activities likely to occur in the Critical Habitat Unit. The medium and including the area of the Kennebec particular areas as: updating and high administrative costs for the Gulf of River adjacent to the location of Bath maintaining pier structures including Maine DPS critical habitat units total Iron Works, a private shipbuilder for the pile driving, dredging activities to $1,625,774.20 and $2,707,374.20, Navy, and the area of the Piscataqua maintain proper channel and berthing respectively. The projected low River surrounding Portsmouth Naval depths, barge loading and unloading, administrative costs for the New York Shipyard on Seavey Island at the mouth and fuel unloading. Bight DPS critical habitat units total of the Piscataqua River, will impact the We considered the impact these $1,418,299.301. The individual low national security. The Navy described activities are likely to have on the costs for the four critical habitat units the activities likely to occur in one or physical features. The physical features range from 31,474.84 for the Housatonic both of the particular areas as: Flooding of critical habitat in the areas requested River Critical Habitat Unit to and dewatering dry docks, updating and for exclusion are salinity suitable for $752,674.84 for the Hudson River maintaining pier structures including younger juveniles, open passage for Critical Habitat Unit. The medium and pile driving, and dredging activities to juveniles to access all parts of the high administrative costs for the New maintain proper channel and berthing estuary needed for development, open York Bight DPS critical habitat units depths. passage for adults traveling through the total $2,830,699.30 and $5,565,899.30, We considered the impact these area to and from spawning areas, and respectively. The projected low activities are likely to have on the soft substrate. The activities described administrative costs of designating all of physical features. The physical features by the Navy may affect salinity, open the Chesapeake Bay DPS critical habitat of critical habitat in the areas requested passage, and substrate. Maintaining units total $524,974.20. The individual for exclusion are salinity suitable for and/or updating the pier structures may low costs for the five critical habitat older juveniles, open passage for affect open passage and substrate (e.g., units range from $45,474.84 for the juveniles suitably developed to leave placing more pier structures in the area, Rappahannock River Critical habitat the natal river, open passage for adults and altering the substrate to make it Unit to $276,274.84 for the Potomac traveling through the area to and from more suitable for the pier structure). River Critical Habitat Unit. The medium spawning areas, open passage for Dredging activities to maintain proper and high administrative costs for the subadults traveling through the area, channel and berthing depths may affect Chesapeake Bay DPS critical habitat and soft substrate. Withdrawing water (e.g., remove) the substrate that supports units total $1,042,574.20 and from the river to flood dry docks and foraging and spawning. Changing the $1,947,374.20, respectively. returning that water to the river would depth could affect salinity (e.g., as a Currently, there is no information not change the salinity or substrate in result of changes to mixing in the indicating that any of the section 7 the river and would have no impact on estuarine river or the extent of saltwater consultations expected to result from open passage. Maintaining and/or intrusion). Barge loading and unloading, the critical habitat designations will updating the pier structures is not likely and fuel unloading may affect water result in project modifications. to adversely affect salinity, but may quality (e.g., as a result of spills). However, there is potential that section affect open passage and substrate (e.g., Maintaining and/or updating the pier 7 consultation stemming from these placing more pier structures in the area, structures, dredging, and barge traffic designations may, sometime in the altering the substrate to make it more also may affect the species. For future, result in project modifications suitable for the pier structure). example, maintaining and/or updating and associated costs. Therefore, for Similarly, dredging activities to pier structures can produce sounds that

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harass sturgeon and disrupt normal habitat that extend beyond the We have analyzed the economic, behaviors such as foraging, staging, and conservation benefits to Atlantic national security, and other relevant spawning. Dredging may result in injury sturgeon. For example, protecting impacts of designating critical habitat. or death of sturgeon that come into essential features of sturgeon habitat, Although we have used the best contact with the gear (e.g., older including preserving water quality and available information and an approach juveniles passing through as they leave natural flow regimes, will benefit other designed to avoid underestimating the natal river, adults traveling through organisms that are co-located in these economic impacts, many of the the area to and from spawning areas, areas. Benefits can result from potential impacts are speculative and and subadults traveling through the additional protections in the form of may not occur in the future. Our area). Vessels for fuel deliveries and project modifications or conservation conservative identification of potential, barge traffic can strike sturgeon measures due to section 7 consultations incremental, economic impacts resulting in injuries and mortality. Since or, conversely, a benefit of excluding an indicates that any such impacts, if they the activities described by the Navy are area from designation could be avoiding were to occur, would be very small. Any also likely to impact the species (e.g., the costs associated with those incremental economic impacts will juveniles and spawning adults), we protections (78 FR 53058, August 28, consist solely of the administrative costs expect consultations will be 2013). Because it is often difficult to of consultation; no project modifications coextensive. quantify the benefits of designating are projected to be required to address The Navy also expressed concern that critical habitat, Executive Order (EO) impacts solely to the proposed critical designating the Rappahannock and 12866, Regulatory Planning and Review, habitat. The Navy requested exclusion James River critical habitat units will provides guidance on assessing costs of two areas within the Gulf of Maine impact national security. The activities and benefits. The EO directs Federal DPS proposed critical habitat units, conducted in these areas are in-water agencies to assess all costs and benefits three areas within the New York Bight training on the Rappahannock, of available regulatory alternatives, and critical habitat units, and two areas including small boat tactic, amphibious to select those approaches that within the Chesapeake Bay critical landings, and helicopter rope maximize net benefits. habitat units. As noted above, no suspension techniques, and training The designation of critical habitat will impacts to national security are activities on the lower James River, provide conservation benefits such as expected as a consequence of the which include underwater diving and improved education and outreach by proposed critical habitat. Other relevant salvage operations, helicopter rope informing the public about areas and impacts include conservation benefits of suspension techniques, small boat features important to the conservation of the designation, both to the species and launch and recovery, high-speed boat to society. The designation of critical the Gulf of Maine, New York Bight, and tactics training, small boat defense habitat will provide conservation Chesapeake Bay DPSs. As stated in the drills, visit, board, search and seizure benefits such as improved education Background, specifying the geographic drills, integrated swimmer defense, and outreach by informing the public location of critical habitat facilitates submarine maintenance and system about areas and features important to implementation of section 7(a)(1) of the upgrades, sonar testing, towing of in- the conservation of the Gulf of Maine, ESA by identifying areas where Federal water devices, unmanned vehicle New York Bight, and Chesapeake Bay agencies can focus their conservation testing, and mine countermeasure DPSs. There are also a number of programs and use their authorities to testing. potential beneficial impacts of further the purposes of the ESA. The physical features of critical designating critical habitat that extend habitat in the areas requested for Designating critical habitat can also help beyond the conservation benefits to exclusion are salinity suitable for older focus the efforts of other conservation Atlantic sturgeon. For example, juveniles, open passage for juveniles to partners (e.g., State and local protecting essential features of sturgeon access all parts of the estuary needed for governments, individuals and habitat, including preserving water development, open passage for adults nongovernmental organizations). quality and natural flow regimes, will traveling through the area to and from Discretionary Exclusion Analysis benefit other organisms that are co- spawning areas, open passage for located in these areas. While we cannot subadults traveling through the area, Based on our consideration of impacts quantify nor monetize the benefits, we and soft substrate. The described above, we are not excluding any believe they are not negligible and training activities are not likely to particular areas from the critical habitat would be an incremental benefit of this adversely affect salinity, but may affect designation based on economic, designation. Therefore, we have open passage and substrate (e.g., from national security, or other relevant concluded that there is no basis to placement of structures, activities impacts. Section 4(b)(2) of the ESA exclude any particular area from the resulting in increased siltation or provides the Secretary with broad proposed critical habitat units. erosion of substrate). However, the discretion to exclude any area from training activities also may affect the critical habitat if she determines that the Activities That May Be Affected species. For example, sonar testing and benefits of such exclusion outweigh the Section 4(b)(8) of the ESA requires various in-water testing can produce benefits of specifying such area as part that any proposed or final regulation to sounds that harass sturgeon and disrupt of the critical habitat, unless it is designate critical habitat describe briefly normal behaviors such as foraging and determined, based on the best scientific and evaluate those activities that may staging. Small and large vessel and commercial data available, that the adversely modify such habitat or that operations can result in vessel strikes to failure to designate such area as critical may be affected by such designation. A sturgeon. Since the activities described habitat will result in the extinction of wide variety of activities may affect by the Navy are also likely to impact the the species concerned. The agency has critical habitat and, when carried out, species (e.g., juveniles, subadults, and considerable discretion in evaluating funded, or authorized by a Federal adults), we expect consultations will be the various impacts and determining agency, will require an ESA section 7 coextensive. how the impacts will be considered and consultation. Such activities (detailed in There are a number of potential weighed in deciding whether to exclude the economic analysis) include in-water beneficial impacts of designating critical any particular area. construction, dredging, bridge, culvert,

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and road projects (e.g., for restoration rule during the comment period (see whose ‘‘dissemination could have a projects), hydropower (unknown DATES). We are soliciting comments or potential impact of more than $500 capacity), utility lines, sand and gravel suggestions from the public, other million in any one year on either the mining, and activities requiring concerned governments and agencies, public or private sector or that the National Pollutant Discharge the scientific community, industry, or dissemination is novel, controversial, or Elimination System permits. Private any other interested party concerning precedent-setting, or has significant entities may also be affected by these this proposed rule, including any interagency interest.’’ proposed critical habitat designations if foreseeable economic, national security, a Federal permit is required, Federal or other relevant impact resulting from The Draft Biological Information and funding is received, or the entity is the proposed designations. You may 4(b)(2) Source Document (NMFS, 2015) involved in or receives benefits from a submit your comments and materials and the Draft Economic Impact Analysis Federal project. These activities will concerning this proposal by any one of (King and Associates Inc., 2014) need to be evaluated with respect to several methods (see ADDRESSES). supporting this proposed critical habitat their potential to destroy or adversely Copies of the proposed rule and rule are considered influential scientific modify critical habitat. Specifically, as supporting documentation can be found information and subject to peer review. discussed above, activities (dredging, on the NMFS Greater Atlantic Region To satisfy our requirements under the mining, utility lines, in water Web site at www.greateratlantic. OMB Bulletin, we obtained independent construction, placement of dams and fisheries.noaa.gov/. We will consider all peer review of these draft documents, tidal turbines) may adversely modify the comments pertaining to this designation and incorporated the peer review substrate essential feature by removing received during the comment period in comments prior to dissemination of this or altering the substrate. The open preparing the final rule. Accordingly, proposed rulemaking. For this action, passage feature may also be adversely the final designation may differ from compliance with the OMB Peer Review modified by the placement of structures this proposal. Bulletin satisfies any peer review such as dams and tidal turbines. The Information Quality Act and Peer requirements under the 1994 joint peer salinity feature may be adversely Review review policy. The Draft Biological affected by activities that impact fresh Information and 4(b)(2) Source The data and analyses supporting this water input, such as operation of water Document and the Draft Economic proposed action have undergone a pre- control structures and water Impact Analysis prepared in support of withdrawals, and activities that impact dissemination review and have been determined to be in compliance with this proposal are available on our Web water depth, such as dredging. The site at www.greateratlantic. water quality feature may be adversely applicable information quality fisheries.noaa.gov. Comments received affected by land development, and guidelines implementing the from peer reviewers on these documents commercial and recreational activities Information Quality Act (IQA) (Section on rivers may adversely affect the water 515 of Pub. L. 106–554). On July 1, will also be made available via our Web quality feature by contributing to the 1994, a joint USFWS/NMFS policy for site at the time of publication of the persistence of nutrient loading, resulting peer review was issued stating that the proposed rule. in decreased dissolved oxygen levels Services would solicit independent peer Classification and increased water temperature, and review to ensure the best biological and by increasing sediment deposition, commercial data is used in the Takings (Executive Order 12630) which reduces Atlantic sturgeon egg development of rulemaking actions and adherence on hard spawning substrate draft recovery plans under the ESA (59 Under E.O. 12630, Federal agencies and reduces the interstitial spaces used FR 34270). In addition, on December 16, must consider the effects of their actions by larvae for refuge from predators. 2004, the Office of Management and on constitutionally protected private Dredging to remove sediment build-up Budget (OMB) issued its Final property rights and avoid unnecessary or to facilitate vessel traffic may remove Information Quality Bulletin for Peer takings of property. A taking of property or alter the hard substrate that is Review (Bulletin). The Bulletin was includes actions that result in physical necessary for egg adherence and as published in the Federal Register on invasion or occupancy of private refuge for larvae, and may change the January 14, 2005 (70 FR 2664), and went property, and regulations imposed on water depth, resulting in shifts in the into effect on June 16, 2005. The private property that substantially affect salt wedge within the estuary or changes primary purpose of the Bulletin is to its value or use. In accordance with E.O. to other characteristics of the water improve the quality and credibility of 12630, this proposed rule would not quality (e.g., temperature, dissolved scientific information disseminated by have significant takings implications. oxygen) necessary for the developing the Federal government by requiring The designation of critical habitat for eggs, larvae, and juveniles. These peer review of ‘influential scientific the Gulf of Maine, New York Bight, and activities would require ESA section 7 information’’ and ‘‘highly influential Chesapeake Bay DPSs of Atlantic consultation when they are scientific information’’ prior to public sturgeon are not expected to impose implemented, funded, or carried out by dissemination. ‘‘Influential scientific additional burdens on land use or affect a federal agency. information’’ is defined as ‘‘information property values. Therefore, a takings the agency reasonably can determine Questions regarding whether specific implication assessment is not required. activities will constitute destruction or will have or does have a clear and adverse modification of critical habitat substantial impact on important public Regulatory Planning and Review should be directed to NMFS (see policies or private sector decisions.’’ (Executive Order 12866) ADDRESSES and FOR FURTHER The Bulletin provides agencies broad INFORMATION CONTACT). discretion in determining the This proposed rule has been appropriate process and level of peer determined to be significant for Public Comments Solicited review. Stricter standards were purposes of E.O. 12866. A draft We request that interested persons established for the peer review of economic report has been prepared to submit comments, information, and ‘‘highly influential scientific support an impacts analysis under suggestions concerning this proposed assessments,’’ defined as information section 4(b)(2) of the ESA.

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Federalism (Executive Order 13132) otherwise interferes with an action designating all critical habitat areas Pursuant to the Executive Order on taken or planned by another agency identified for the Gulf of Maine, New Federalism, E.O. 13132, we determined regarding energy; or (4) raises novel York Bight, and Chesapeake Bay DPSs that this proposed rule does not have legal or policy issues adversely affecting of Atlantic sturgeon. Under the ‘‘no significant Federalism effects and that a the supply, distribution or use of energy action’’ alternative, we would not Federalism assessment is not required. arising out of legal mandates, the designate critical habitat for the Gulf of However, in keeping with Department President’s priorities, or the principles Maine, New York Bight or Chesapeake of Commerce policies and consistent set forth in E.O. 12866 and 13211. Bay DPSs. By comparison, designating This rule, if finalized, will not have a with ESA regulations at 50 CFR some of the identified critical habitat significant adverse effect on the supply, 424.16(c)(1)(ii), we will request areas (i.e., Alternative 2) could result in distribution, or use of energy. Therefore, an increase in the number of section 7 information for this proposed rule from we have not prepared a Statement of consultations required to avoid adverse state resource agencies in Maine, New Energy Effects. impacts relative to the ‘‘no action’’ Hampshire, Massachusetts, Connecticut, alternative, while Alternative 3 would New York, New Jersey, Delaware, Regulatory Flexibility Act (5 U.S.C. 601 likely result in the greatest number of Maryland, and Virginia as well as et seq.) section 7 consultations relative to the appropriate authorities for the District of We prepared an initial regulatory other alternatives. Columbia. The proposed designations flexibility analysis (IRFA) pursuant to We have determined that the physical may have some benefit to state and local section 603 of the Regulatory Flexibility features forming the basis for our resource agencies in that the proposed Act (RFA) (5 U.S.C. 601, et seq.). The proposed critical habitat designations rule more clearly defines the physical IRFA analyzes the impacts of this are essential to the conservation of the and biological features essential to the proposed rule, if enacted, on small Gulf of Maine, New York Bight, and conservation of the species and the entities. Specifically, the IRFA describes Chesapeake Bay DPSs. Therefore, we areas on which those features are found. the economic impact on small entities rejected the no action alternative and Energy Supply, Distribution, and Use in those areas where critical habitat is Alternative 2. We have analyzed the (Executive Order 13211) proposed, and is included as Appendix economic, national security, and other A of the Draft Biological Information relevant impacts of designating all Executive Order 13211 requires and 4(b)(2) Source Document available critical habitat identified for the DPSs. agencies to prepare Statements of at the location identified in the Our conservative identification of Energy Effects when undertaking an ADDRESSES section. A summary of the potential, incremental economic action expected to lead to the IRFA follows. impacts indicates that any such impacts, promulgation of a final rule or We determined that the Gulf of if they were to occur, would be very regulation that is a significant regulatory Maine, New York Bight, and small. Any incremental economic action under E.O. 12866 and is likely to Chesapeake Bay DPSs of Atlantic impacts will consist solely of the have a significant adverse effect on the sturgeon warranted listing under the administrative costs of consultation; no supply, distribution, or use of energy. Endangered Species Act (ESA) and project modifications are projected to be OMB Guidance on Implementing E.O. published notice of that decision on required to address impacts solely to the 13211 (July 13, 2001) states that February 6, 2012 (77 FR 5880). We are proposed critical habitat. No impacts to significant adverse effects could include required to designate critical habitat for national security are expected as a any of the following outcomes each of the DPSs of Atlantic sturgeon consequence of the proposed critical compared to a world without the (16 U.S.C. 1533(a)(3)). The critical habitat. Other relevant impacts include regulatory action under consideration: habitat provisions of the ESA are conservation benefits of the designation, (1) Reductions in crude oil supply in intended to promote recovery of the both to the species and to society. While excess of 10,000 barrels per day; (2) ESA-listed species by prohibiting we cannot quantify or monetize the reductions in fuel production in excess federal agency actions from destroying benefits, we believe that the benefits of of 4,000 barrels per day; (3) reductions or adversely modifying the physical or this critical habitat designation would in coal production in excess of 5 million biological features that are essential to be incremental, and that they are not tons per year; (4) reductions in natural conservation of the listed entity. negligible. gas production in excess of 25 million The ESA section 7 consultation The Small Business Administration mcf per year; (5) reductions in requirement for critical habitat does not has established numerical definitions of electricity production in excess of 1 apply to citizens engaged in activities small businesses, or ‘‘size standards,’’ billion kilowatt-hours per year or in on private land that do not involve a for all for-profit industries. Based on excess of 500 megawatts of installed Federal agency. However, there may be these size standards (e.g., in millions of capacity; (6) increases in energy use an impact to private citizens and small dollars or number of employees), King required by the regulatory action that entities that are engaged in activities and Associates, Inc. (2014), concluded a exceed any of the thresholds above; (7) that involve a Federal agency action. For high percent of business entities located increases in the cost of energy example, small businesses involved in in the counties that include one or more production in excess of one percent; (8) construction activities such as of the critical habitat units, an average increases in the cost of energy breakwater, dock, pier, and harbor of 99.8% across all units, are small distribution in excess of one percent; or construction may be impacted if a businesses. However, data are not (9) other similarly adverse outcomes. A federal agency must issue a permit for available to determine the location of regulatory action could also have the work to be conducted, will provide these small business entities within significant adverse effects if it: (1) funds for the work, or will otherwise be each county in order to determine how Adversely affects in a material way the involved in carrying out the work. Such many are located in or near areas productivity, competition, or prices in involvement by a federal agency triggers proposed as critical habitat. Therefore, the energy sector; (2) adversely affects in the need for section 7 consultation. for purposes of projecting the impacts of a material way productivity, We considered three alternatives: (1) administrative section 7 costs on small competition or prices within a region; No action, (2) designating some of the businesses in each critical habitat unit, (3) creates a serious inconsistency or identified critical habitat areas, or (3) King and Associates assumed that the

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percentage of private entities involved when, where and how they will be judicial decisions, and agreements, in those consultations that are small carried out) to characterize any of these which differentiate tribal governments entities is the same as the percentage of as reasonable foreseeable. Therefore, from the other entities that deal with, or businesses that are small entities in the because the effects are not reasonably are affected by, the Federal Government. counties that include critical habitat foreseeable, we cannot make a This relationship has given rise to a units. determination as to whether the Federal special Federal trust responsibility The same approach that was used by activities will be consistent with any involving the legal responsibilities and King and Associates to estimate low, enforceable policies of approved State obligations of the United States toward medium, and high overall ESA section coastal management programs. Through Indian Tribes and the application of 7 administrative costs was used as a the consultation process, we will fiduciary standards of due care with basis for developing low, medium, and receive information on proposed respect to Indian lands, tribal trust high estimates of section 7 impacts on Federal actions and their effects on small entities. Impacted small entities listed species and the designated critical resources, and the exercise of tribal may include contractors involved in habitat upon. We base any biological rights. construction activities such as opinions on this information. It will Executive Order 13175, Consultation breakwater, dock, pier, bridge, and then be up to the Federal action and Coordination with Indian Tribal harbor construction, contractors agencies to decide how to comply with Governments, outlines the involved in restoration activities such as the ESA in light of our biological responsibilities of the Federal culvert replacements, and marina opinion, as well as to ensure that their Government in matters affecting tribal owners who must maintain pier and actions comply with the CZMA’s interests. If NMFS issues a regulation dock structures. King and Associates Federal consistency requirement. At this with tribal implications (defined as concluded that costs to small entities time, we do not anticipate that this having a substantial direct effect on one associated with the designation range designation is likely to result in any or more Indian tribes, on the from about $16,500 to $47,250 annually additional management measures by relationship between the Federal in the Gulf of Maine DPS, about $30,000 other Federal agencies. Government and Indian tribes, or on the to $96,000 annually in the New York Bight DPS, and about $11,000 to Paperwork Reduction Act of 1995 distribution of power and $34,000 annually in the Chesapeake Bay (44 U.S.C. 3501 et seq.) responsibilities between the Federal DPS (King and Associates, Inc., 2014). This proposed rule does not contain Government and Indian tribes) we must We found no data to suggest that the any new or revised collection of consult with those governments or the designation would place small entities information. This rule, if adopted, Federal Government must provide funds at a competitive disadvantage compared would not impose recordkeeping or necessary to pay direct compliance costs to large entities. reporting requirements on State or local incurred by tribal governments. The proposed critical habitat designations Coastal Zone Management Act governments, individuals, businesses, or organizations. for Gulf of Maine, New York Bight, and Under section 307(c)(1)(A) of the Chesapeake Bay Atlantic sturgeon DPSs Unfunded Mandates Reform Act Coastal Zone Management Act (CZMA) do not have tribal implications. (16 U.S.C. 1456(c)(1)(A)) and its (2 U.S.C. 1501 et seq.) implementing regulations, each Federal This proposed rule will not produce References Cited activity within or outside the coastal a Federal mandate. The designation of A complete list of all references cited zone that has reasonably foreseeable critical habitat does not impose a in this rulemaking can be found at effects on any land or water use or legally-binding duty on non-Federal natural resource of the coastal zone government entities or private parties. www.greateratlantic.fisheries.noaa.gov, shall be carried out in a manner which The only regulatory effect is that Federal and is available upon request from the is consistent to the maximum extent agencies must ensure that their actions NMFS Greater Atlantic Region Fisheries practicable with the enforceable policies do not destroy or adversely modify Office in Gloucester, Massachusetts (see of approved State coastal management critical habitat under section 7 of the ADDRESSES). programs. We have determined that any ESA. Non-Federal entities which receive List of Subjects in 50 CFR Part 226 effects of this proposed designation of Federal funding, assistance, permits or critical habitat on coastal uses and otherwise require approval or Endangered and threatened species. resources in Maine, New Hampshire, authorization from a Federal agency for Dated: May 24, 2016. Massachusetts, Connecticut, New York, an action may be indirectly impacted by New Jersey, Delaware, Pennsylvania, the designation of critical habitat but, Samuel D. Rauch, III, Maryland, and Virginia are not the Federal agency has the legally Deputy Assistant Administrator for reasonably foreseeable at this time. This binding duty to avoid destruction or Regulatory Programs, National Marine proposed designation may trigger ESA adverse modification of critical habitat. Fisheries Service. section 7 obligations for federal We do not anticipate that this rule, if For the reasons set out in the agencies. These consultations will finalized, will significantly or uniquely preamble, we propose to amend 50 CFR consider effects of Federal actions on affect small governments. Therefore, a part 226 as follows: coastal uses and resources to the extent Small Government Action Plan is not they overlap with critical habitat. We required. PART 226—DESIGNATED CRITICAL considered the range of Federal actions HABITAT that this designation may affect (e.g., Consultation and Coordination With Indian Tribal Governments (Executive dredging, bridge construction/repair, ■ 1. The authority citation for part 226 water withdrawals) and which may Order 13175) continues to read as follows: affect coastal uses and resources in the The longstanding and distinctive affected States. However, we do not relationship between the Federal and Authority: 16 U.S.C. 1533. have sufficient information on the tribal governments is defined by ■ specifics of any future activities (e.g., treaties, statutes, executive orders, 2. Add § 226.225 to read as follows:

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§ 226.225 Critical habitat for the Gulf of in low salinity waters (i.e., 0.0–0.5 parts Water depths in main river channels Maine, New York Bight, and Chesapeake per thousand range) for settlement of must also be deep enough (e.g., ≥1.2 m) Bay Distinct Population Segments of fertilized eggs, refuge, growth, and to ensure continuous flow in the main Atlantic Sturgeon. development of early life stages; channel at all times when any sturgeon Critical habitat is designated for the (2) Aquatic habitat with a gradual life stage would be in the river; Gulf of Maine, New York Bight, and downstream salinity gradient of 0.5–30 Chesapeake Bay Distinct Population (4) Water, especially in the bottom parts per thousand and soft substrate meter of the water column, with the Segments (DPSs) of Atlantic sturgeon as (e.g., sand, mud) downstream of described in paragraphs (a) through (c) temperature, salinity, and oxygen values spawning sites for juvenile foraging and that, combined, support: of this section. The textual descriptions physiological development; in paragraphs (c) through (f) of this (i) Spawning; (3) Water of appropriate depth and section are the definitive source for absent physical barriers to passage (e.g., (ii) Annual and interannual adult, determining the critical habitat locks, dams, reservoirs, gear, etc.) subadult, larval, and juvenile survival; boundaries. and (a) The physical features essential for between the river mouth and spawning the conservation of Atlantic sturgeon sites necessary to support: (iii) Larval, juvenile, and subadult belonging to the Gulf of Maine, New (i) Unimpeded movement of adults to growth, development, and recruitment and from spawning sites; (e.g., 13 °C to 26 °C for spawning habitat York Bight, and Chesapeake Bay ° Distinct Population Segments are those (ii) Seasonal and physiologically and no more than 30 C for juvenile habitat components that support dependent movement of juvenile rearing habitat, and 6 mg/L dissolved successful reproduction and Atlantic sturgeon to appropriate salinity oxygen for juvenile rearing habitat). recruitment. These are: zones within the river estuary; and (b) Critical habitat is designated for (1) Hard bottom substrate (e.g., rock, (iii) Staging, resting, or holding of the following DPSs in the following cobble, gravel, limestone, boulder, etc.) subadults or spawning condition adults. states and counties:

DPS State/district—counties

Gulf of Maine ...... ME—Androscoggin, Cumberland, Kennebec, Lincoln, Penobscot, Sagadahoc, Somerset, Waldo, York. NH—Rockingham, Stafford. MA—Essex. New York Bight ...... CT—Fairfield, Hartford, Litchfield, Middlesex, New Haven, New London, Tolland. NJ—Bergen, Burlington, Camden, Cape May, Cumberland, Gloucester, Hudson, Mercer, Monmouth, Salem. NY—Albany, Bronx, Columbia, Dutchess, Greene, Kings, New York, Orange, Putnam, Queens, Rensselaer, Rich- mond, Rockland, Saratoga, Ulster, Westchester. DE—Kent, New Castle, Sussex. PA—Bucks, Delaware, Philadelphia. Chesapeake Bay ...... D.C.—District of Columbia. MD—Charles, Montgomery, Prince George’s, St. Mary’s. VA—Arlington, Caroline, Charles City, Chesterfield, Dinwiddie, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, King George, James City, King and Queen, King William, Lancaster, Loudoun, Middlesex, New Kent, Northumberland, Prince George, Prince William, Richmond, Spotsylvania, Stafford, Surry, Westmoreland, York.

(c) Critical habitat boundaries for the River and upstream to the Route 4 Dam; stem river discharges at its mouth into Gulf of Maine DPS. Critical habitat for and, Delaware Bay. the Gulf of Maine DPS of Atlantic (5) Merrimack River from the Essex (e) Critical Habitat Boundaries of the sturgeon is the waters of: Dam (also known as the Lawrence Dam) Chesapeake Bay DPS. Critical habitat for (1) Penobscot River main stem from downstream to where the main stem the Chesapeake Bay DPS of Atlantic the Milford Dam downstream to where river discharges at its mouth into the sturgeon is the waters of: the main stem river drainage discharges Atlantic Ocean. (1) Susquehanna River from the at its mouth into Penobscot Bay; (d) Critical Habitat Boundaries of the Conowingo Dam downstream to where (2) Kennebec River main stem from New York Bight DPS. Critical habitat for the main stem river discharges at its the Ticonic Falls/Lockwood Dam the New York Bight DPS of Atlantic mouth into the Chesapeake Bay; downstream to where the main stem sturgeon is the waters of: (2) Potomac River from the Little Falls river discharges at its mouth into the (1) Connecticut River from the Dam downstream to where the main Atlantic Ocean; Holyoke Dam downstream to where the stem river discharges at its mouth into (3) Androscoggin River main stem main stem river discharges at its mouth the Chesapeake Bay; from the Brunswick Dam downstream to into Long Island Sound; (3) Rappahannock River from the U.S. where the main stem river drainage (2) Housatonic River from the Derby Highway 1 Bridge, downstream to discharges into Merrymeeting Bay; Dam downstream to where the main where the river discharges at its mouth (4) Piscataqua River from its stem discharges at its mouth into Long into the Chesapeake Bay; confluence with the Salmon Falls and Island Sound; (4) York River from its confluence Cocheco rivers downstream to where (3) Hudson River from the Troy Lock with the Mattaponi and Pamunkey the main stem river discharges at its and Dam (also known as the Federal rivers downstream to where the main mouth into the Atlantic Ocean as well Dam) downstream to where the main stem river discharges at its mouth into as the waters of the Cocheco River from stem river discharges at its mouth into the Chesapeake Bay as well as the its confluence with the Piscataqua River New York City Harbor; and waters of the Mattaponi River from its and upstream to the Cocheco Falls Dam, (4) Delaware River at the crossing of confluence with the York River and and waters of the Salmon Falls River the Trenton-Morrisville Route 1 Toll upstream to the Virginia State Route 360 from its confluence with the Piscataqua Bridge, downstream to where the main Bridge of the Mattaponi River, and

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waters of the Pamunkey River from its for the New York Bight and Chesapeake (3) The Department of the Navy, confluence with the York River and Bay DPSs of Atlantic sturgeon do not Marine Corps Base Quantico, VA; upstream to the Virginia State Route 360 include the following areas owned or (4) The Department of the Navy, Bridge crossing of the Pamunkey River; controlled by the Department of Naval Weapons Station Yorktown, VA; and Defense, or designated for its use, in the and, (5) James River from Boshers Dam States of New York and Virginia. (5) The Department of the Navy, downstream to where the main stem Naval Support Facility Dahlgren, VA. (1) The Department of the Army, U.S. river discharges at its mouth into the (g) Maps of the Gulf of Maine, New Chesapeake Bay at Hampton Roads. Military Academy—West Point, NY; York Bight, and Chesapeake Bay DPSs (f) Sites owned or controlled by the (2) The Department of the Air Force, follow: Department of Defense. Critical habitat Joint Base Langley—Eustis, VA; BILLING CODE 3510–22–C

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Gulf of Maine Unit 1 Penobscot River Map 1

69°30'W 69°W

45°N Milford O~m

I I ~~usta Jl / ( ' ( "'~~."'~;?':

Legend Area of Detail

- Length of the River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description.'------' The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not depicted in its entirety unless critical habitat is proposed for the entire length ofthe river.

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Gulf of Maine Units 2 and 3 Kennebec River and Androscoggin River Map2

69°W

44°30'N

20 30

?O"W 69°30W

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description.L------.....1 The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not depicted in its entirety unless critical habitat is proposed for the entire length ofthe river.

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Gulf of Maine Units 4 and 5 Piscataqua and Merrimack Rivers Map3

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description.!------' The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not depicted in its entirety unless critical habitat is proposed for the entire length of the river.

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New York Bight Unit 1 Connecticut River Map4 72oW

Village

\ I I

.5. 10 20

5 10

Legend Area of Detail - River Length Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description. The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not d icted in its entiret unless critical habitat is ro sed for the entire len th of the river.

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New York Bight Units 2 and 3 Housatonic River and Hudson River (Part A) MapS

7~0'30'W 73"j30'W

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description.~:-______. The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not depicted in its entirety unless critical habitat is proposed for the entire length of the river.

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New York Bight Unit 3 Hudson River (Part B) Map6

'~!''\ ~·~}

'~,

40 Kilometers

30

Legend

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description. The proposed critical habitat is the full bank width oft he depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not de icted in its entiret unless critical habitat is ro osed for the entire len h of the river.

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New York Bight Unit 3 Hudson River (Part C) Map7

74'30'W 74'W

·,/!Troy Lock and Dam

I

20 30 40 Kilometers

20

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat For the precise legal definition of critical habitat, please refer to the narrative description."'------' The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not depicted in its entirety unless critical habitat is proposed for the entire length of the river.

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MapS

39"Ni 39"N { N 0 5 10 20 30 40 \ ~~a!.IIM 1 Kilometers,' ~wTEw w Miles 11 : s 0 5 : 10 20/ 30 40 ? ~. (' :r5~30'W \\"; 75"W 74"30'W ;~r;l'"

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description. .______, The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not de icted in its entire! unless critical habitat is ro sed for the entire len th of the river.

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New York Bight Unit 4 Delaware River (Part B) Map9

40°30'N

I I

' \

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description. The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not de icted in its entire unless critical habitat is ro sed for the entire len th of the river.

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Chesapeake Bay Unit 1 Susquehanna River Map10

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description. The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not depicted in its entirety unless critical habitat is proposed for the entire length of the river.

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Chesapeake Bay Unit 2 Potomac River Map 11

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description. The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not de icted in its entire unless critical habitat is ro sed for the entire len th of the river.

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Chesapeake Bay Unit 3 Rappahannock River

38°NI I

I I

37"30'N

Legend Area of Detail

- Length of River Proposed as Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description.L------.....1 The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not depicted in its entirety unless critical habitat is proposed for the entire length of the river.

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Chesapeake Bay Unit 4 York, Mattaponi, and Pamunkey Rivers Map13

J£71!l // 'I o 5 10 l2rY/ ;~ 40 3rN N ••o•DIIIIIIIIIIIiil/c:==-••Kilometers W+E 0 5/ IO 20 30 s

Legend Area of Detail

- River Length Proposed for Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description.L------1 The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not depicted in its entirety unless critical habitat is proposed for the entire length of the river.

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Chesapeake Bay Unit 5 James River Map14

Legend Area of Detail

-River Length Proposed for Critical Habitat

This map is provided for illustrative purposes only of Atlantic sturgeon critical habitat. For the precise legal definition of critical habitat, please refer to the narrative description. The proposed critical habitat is the full bank width of the depicted river length with the exception of U.S. Department of Defense sites determined to be ineligible for designation. The river is not de icted in its entire unless critical habitat is ro sed for the entire len th of the river.

[FR Doc. 2016–12743 Filed 6–2–16; 8:45 am] BILLING CODE 3510–22–P

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