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DEPARTMENT OF THE INTERIOR (in)) in length. A mature fish weighs 1 additional shovelnose to 2 kilograms (kg) (2 to 4 pounds (lb)). specimens from a larger geographic area. Fish and Wildlife Service The head is broad and flattened shovel- Mayden and Kuhajda (1996) identified like at the snout. The mouth is tubular eight new diagnostic characters, found 50 CFR Part 17 and protrusive. There are four barbels little evidence of geographic clinal RIN 1018±AF56 (whisker-like appendages used to find variation in these diagnostic features, prey) on the bottom of the snout, in and concluded that the Endangered and Threatened Wildlife front of the mouth. Bony plates cover sturgeon was a distinct and valid and Plants; Final Rule To List the the head, back, and sides. The body species. Alabama Sturgeon as Endangered narrows abruptly to the rear, forming a Attempts to clarify taxonomic narrow stalk between the body and tail. relationships of the Alabama sturgeon to AGENCY: Fish and Wildlife Service, The upper lobe of the tail fin is other species of using Interior. elongated and ends in a long filament. DNA sequencing have met with limited ACTION: Final rule. Characters used to distinguish the success. In an unpublished report, Alabama sturgeon from the closely Schill and Walker (1994) used tissue SUMMARY: We, the Fish and Wildlife related shovelnose sturgeon samples from an Alabama sturgeon Service (Service), determine the (Scaphirhynchus platorynchus) include collected in 1993 to compare the three Alabama sturgeon (Scaphirhynchus larger eyes, orange color, number of nominal Scaphirhynchus species. Based suttkusi) to be endangered under the dorsal plates, dorsal fin ray numbers, on estimates of sequence divergence at authority of the Endangered Species Act and the absence of spines on the tip of the mitochondrial cytochrome b locus, of 1973, as amended (Act). The Alabama its snout and in front of its eyes. Alabama, shovelnose, and ’s historic range once included The earliest specimens of Alabama (S. albus) were about 1,600 kilometers (km) (1,000 sturgeon in museum collections date indistinguishable. However, other miles (mi)) of the Mobile River system from about 1880. The first mention of studies have also found that the in Alabama (Black Warrior, Tombigbee, the fish in the scientific literature, cytochrome b locus was not useful for Alabama, Coosa, Tallapoosa, Mobile, however, was not until 1955, when a discriminating among some congeneric Tensaw, and Cahaba Rivers) and report of the collection of a single fish species that were otherwise Mississippi (Tombigbee River). Since specimen from the Tombigbee River was distinguished by accepted 1985, all confirmed captures have been published by Chermock. In 1976, morphological, behavioral, and other from a short, free-flowing reach of the Ramsey referred to the Alabama characteristics (Campton et al. 1995). Alabama River below Millers Ferry and sturgeon as the Alabama shovelnose In two unpublished reports for the Claiborne Locks and Dams in Clarke, sturgeon, noting that it probably was U.S. Army Corps of Engineers (Corps) Monroe, and Wilcox Counties, Alabama. distinct from the shovelnose sturgeon, and us by Genetic Analyses, Inc. (1994, The decline of the Alabama sturgeon is which is found in the Mississippi River 1995), nuclear DNA fragments were attributed to over-fishing, loss and Basin and was also historically known compared among the three fragmentation of habitat as a result of from the Rio Grande. In 1991, Williams Scaphirhynchus species. The three historical navigation-related and Clemmer formally described the Alabama sturgeon specimens examined development, and water quality species based on a statistical were genetically divergent from pallid degradation. Current threats primarily comparison of relative sizes and and shovelnose sturgeons, while there result from its reduced range and its numbers of morphological structures of were no observed differences of DNA small population numbers. These Alabama and shovelnose sturgeons. fragments between the pallid and threats are compounded by a lack of The methods used by Williams and shovelnose sturgeons. However, the information on Alabama sturgeon Clemmer (1991) to justify species 1995 study also found that two of the habitat and life history requirements. designation for the Alabama sturgeon Alabama sturgeon differed substantially This action extends the Act’s protection have been criticized in unpublished from the third, noted the small number to the Alabama sturgeon. manuscripts (e.g., Blanchard and of samples of Alabama sturgeon, and EFFECTIVE DATE: June 5, 2000. Bartolucci 1994, Howell et al. 1995) and recommended additional studies to in one published paper (Mayden and examine genetic diversity within the ADDRESSES: The complete file for this Kuhajda 1996). The criticisms included Alabama sturgeon population. rule is available for inspection, by identification of a variety of statistical A comparative study of the appointment, during normal business and methodological errors and mitochondrial DNA (mtDNA) d-loop of hours at the Mississippi Field Office, limitations (e.g., small sample size, Scaphirhynchus species by Campton et U.S. Fish and Wildlife Service, 6578 clinal variation (characteristics of a al. (1995) provided genetic data Dogwood View Parkway, Jackson, species correlated with changing consistent with the taxonomic Mississippi 39213. ecological variables), allometric growth distinction of the Alabama sturgeon FOR FURTHER INFORMATION CONTACT: Paul (growth of parts of an organism at from the shovelnose sturgeon. The d- Hartfield at the above address different rates and at different times), loop is considered to be a rapidly (telephone 601/321–1125; facsimile inappropriate statistical tests, and evolving part of the genome. Campton et 601/965–4340). others). Bartolucci et al. (1998), using al. (1995) found that haplotype (genetic SUPPLEMENTARY INFORMATION: Bayesian Analysis statistical markers) frequencies of the d-loop from methodology, found no significant the three Scaphirhynchus species were Background differences in multivariate means of significantly different, with the Alabama The Alabama sturgeon measurement data, taken from Williams sturgeon having a unique haplotype. (Scaphirhynchus suttkusi) is a small, and Clemmer (1991). However, the relative genetic freshwater sturgeon that was historically Mayden and Kuhajda (1996) differences among the three species found only in the Mobile River Basin of reevaluated the morphological were small, suggesting that the rate of Alabama and Mississippi. This sturgeon distinctiveness of the Alabama sturgeon genetic change in the genus is relatively is an elongate, slender fish growing to using improved statistical tests and new slow and/or they have only recently about 80 centimeters (cm) (31 inches data derived from examination of diverged. The genetic similarity

VerDate 272000 16:18 May 04, 2000 Jkt 190000 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm02 PsN: 05MYR2 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26439 between the pallid and shovelnose Clemmer 1991). Examination of stomach uncommon; however, by the 1970s, it sturgeon has been suggested to be due contents of museum and captured had become rare. In 1976, Ramsey to interbreeding that has recently specimens show that these sturgeon are considered the sturgeon as endangered occurred as a result of niche overlap opportunistic bottom feeders, preying and documented only six specimens resulting from widespread habitat losses primarily on aquatic insect larvae from museums. Clemmer (1983) was (Carlson et al. 1985, Keenlyne et al. (Mayden and Kuhajda 1996). Mayden able to locate 23 Alabama sturgeon 1994). and Kuhajda (1996) deduced other specimens in museum collections, with During open comment periods for the aspects of Alabama sturgeon life history the most recent collection dated 1977. proposed rule, we received several by a review of spawning habits of its Clemmer also found that commercial reports and letters containing new data better known congener (a species that is fishermen in the Alabama and from mtDNA analysis of a member of the same genus), the Tombigbee Rivers were familiar with Scaphirhynchus. Both Campton et al. shovelnose sturgeon. Life history of the the sturgeon, calling it hackleback, (1999) and Mayden et al. (1999) shovelnose sturgeon has also been buglemouth trout, or devilfish. identified a haplotype common to the recently summarized by Keenlyne During the mid-1980s, Burke and three Alabama sturgeon sampled that (1997). These data indicate that Ramsey (1985, 1995) conducted a status was not observed in a much larger Alabama sturgeon are likely to migrate survey to determine the distribution and sample (>70) of pallid and shovelnose upstream during late winter and spring abundance of the Alabama sturgeon. sturgeons. Wells (in litt. 1999) also to spawn. Downstream migrations may Interviews were conducted with conducted mtDNA analysis on eight occur to search for feeding areas and/or commercial fishermen on the Alabama shovelnose sturgeon and identified deeper, cooler waters during the and Cahaba Rivers, some of whom several new haplotypes not found in summer. Eggs are probably deposited on reported catch of Alabama sturgeon as previous studies. He did not find the hard bottom substrates such as bedrock, an annual event. However, with the haplotype unique to Alabama sturgeon armored gravel, or channel training assistance of commercial fishermen, in these shovelnose sturgeon. Fain et al. works in deep water habitats, and Burke and Ramsey were able to collect (2000) found that the mitochondrial possibly in tributaries to major rivers. only five Alabama sturgeons, including cytochrome b gene was not useful to The eggs are adhesive and require two males, two gravid females, and one distinguish species within current for proper development. juvenile about 2 years old. Burke and Scaphirhynchus or two other species Sturgeon larvae are planktonic, drifting Ramsey (1985) concluded that the groups within the sturgeon genus with river currents, with postlarval Alabama sturgeon had been extirpated . Campton et al. (in press) stages eventually settling out to the river from 57 percent (950 km or 589 mi) of submitted a peer-reviewed report bottom. Sexual maturity is believed to its range and that only 15 percent (250 supporting species recognition of all occur at 5 to 7 years of age. Spawning km or 155 mi) of its former habitat had three species within Scaphirhynchus, frequency of both sexes is influenced by the potential to support a good based on current morphological, food supply and fish condition, and population. An additional sturgeon was biogeographic, and molecular genetic may occur every 1 to 3 years. Alabama taken in 1985 in the Tensaw River and evidence. sturgeon may live up to 15 or more photographed, but the specimen was We acknowledge that there is some years of age. lost (Mettee, Geologic Survey of disagreement concerning the Alabama The Alabama sturgeon’s historic range Alabama, pers. comm. 1997). sturgeon’s taxonomic status. However, consisted of about 1,600 km (1,000 mi) In 1990 and 1992, biologists from the the description of the Alabama sturgeon of river habitat in the Mobile River Alabama Department of Conservation (Scaphirhynchus suttkusi) complies Basin in Alabama and Mississippi. and Natural Resources (ADCNR), with with the rules of the International Code There are records of sturgeon captures the assistance of the Corps, conducted of Zoological Nomenclature (§ 17.11(b)). from the Black Warrior, Tombigbee, searches for Alabama sturgeon using a Recognition of Alabama sturgeon as a Alabama, Coosa, Tallapoosa, Mobile, variety of sampling techniques, without species (Williams and Clemmer 1991) is Tensaw, and Cahaba Rivers (Burke and success (Tucker and Johnson 1991, supported by Mayden and Kuhajda Ramsey 1985, 1995). The Alabama 1992). However, some commercial and (1996), as well as by several recent sturgeon was once common in Alabama, sports fishermen continued to report unpublished genetic studies (Campton and perhaps also in Mississippi. The recent catches of small sturgeon in et al. 1995, 1999, in press; Genetic total 1898 commercial catch of shovel- Millers Ferry and Claiborne Reservoirs Analyses, Inc. 1994, 1995; Mayden et al. nose sturgeons (i.e., Alabama sturgeon) and in the lower Alabama River (Tucker 1999). Furthermore, the Alabama from Alabama was reported as 19,000 kg and Johnson 1991, 1992). sturgeon is nationally and (42,000 lb) in a statistical report to In 1993, our biologists and the internationally recognized as a valid Congress (U.S. Commission of Fish and ADCNR conducted another extensive species (see response to Issue 2’’), and Fisheries 1898). Of this total, 18,000 kg survey for Alabama sturgeon in the will continue to be so recognized unless (39,800 lb) came from the Alabama lower Alabama River. On December 2, overturned at some future date by the River and 1,000 kg (2,200 lb) from the 1993, a mature male was captured alive scientific community through the formal Black Warrior River. Given that an in a gill net downstream of Claiborne peer review and publication process. average Alabama sturgeon weighs about Lock and Dam, at river mile 58.8 in Very little is known of the life history, 1 kg (2 lb), the 1898 commercial catch Monroe County, Alabama (Parauka, U.S. habitat, or other ecological requirements consisted of approximately 20,000 fish. Fish and Wildlife Service, pers. comm. of the Alabama sturgeon. Observations These records indicate a substantial 1995). This specimen represented the by Burke and Ramsey (1985) indicate historic population of Alabama first confirmed record of Alabama the species prefers relatively stable sturgeon. sturgeon in about 9 years. This fish was gravel and sand substrates in flowing Between the 1898 report and 1970, moved to a hatchery where it later died. river channels. Verified captures of little information was published On April 18, 1995, an Alabama Alabama sturgeon have primarily regarding the Alabama sturgeon. An sturgeon captured by fishermen below occurred in large channels of big rivers; anonymous article published in the Claiborne Lock and Dam was turned however, at least two historic records Alabama Game and Fish News in 1930 over to ADCNR and Service biologists. were from oxbow lakes (Williams and stated that the sturgeon was not This fish was carefully examined, radio-

VerDate 272000 16:18 May 04, 2000 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm02 PsN: 05MYR2 26440 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations tagged, and returned to the river where 1998, the two fish were biopsied to sturgeon continue to survive in portions it was tracked for 4 days before the determine their sex. The April specimen of the 216-km (134-mi) length of the transmitter switched off (Parauka, pers. was found to be a mature female with Alabama River channel below Millers comm. 1995). In June 1995, it was immature eggs, whereas the December Ferry Lock and Dam, downstream to the determined that the tag had dislodged. fish was a mature male. mouth of the Tombigbee River. On May 19, 1995, our biologists took Alabama broodstock collection efforts The historic population decline of the another Alabama sturgeon in Monroe in 1998 resulted in the capture of a Alabama sturgeon was probably County, Alabama, near the 1993 single fish on November 12, 1998. A initiated by unrestricted harvesting near collection site. Unfortunately, shortly biopsy performed in December found the turn of the century. Although there after the fish was tagged and released, the specimen to be a reproductively are no reports of commercial harvests of it was found entangled and dead in a inactive male. The two 1997 fish were Alabama sturgeon after the 1898 report, vandalized gill net lying on the river also biopsied at this time, and were it is likely that sturgeon continued to be bottom (Parauka, pers. comm. 1995). On determined to be candidates for affected by the commercial fishery. April 26, 1996, a commercial fisherman propagation in the spring of 1999. Keenlyne (1997) noted that in the early caught, photographed, and released an On March 27, 1999, the mature male years of the 20th century, shovelnose Alabama sturgeon (estimated at about 51 and female sturgeon captured during sturgeon were considered a nuisance to to 58 cm (20 to 23 in) total length and 1997 were induced to spawn. The commercial fishermen and were 1 kg (2 lb) weight) in the Alabama River, female produced about 4,000 mature destroyed when caught. Interviews with 5 km (3 mi) downstream of Millers Ferry eggs; however, the male failed to commercial and recreational fishermen Lock and Dam (Reeves, ADCNR, pers. produce sperm, and the fertilization along the Alabama River indicate that comm. 1996). attempt was unsuccessful. On April 4, Alabama sturgeon continued to be taken Due to the historic decline, lack of 1999, the captive female died from a into the 1980s (Burke and Ramsey collection success, and the apparent bacterial infection that was apparently 1985). Studies of other sturgeon species rarity of the sturgeon, members of the aggravated by spawning stress. Another suggest that newly exploited sturgeon Mobile River Basin Recovery Coalition sturgeon was captured on April 14, fisheries typically show an initial high began discussions in the spring of 1996 1999, by commercial fishermen yield, followed by rapid declines. With to develop and implement a downstream of Claiborne Lock and continued exploitation and habitat loss conservation plan for the Alabama Dam, delivered to ADCNR fisheries little or no subsequent recovery may sturgeon that could receive wide biologists, and transported to the occur, even after nearly a century support. A draft plan was subsequently Marion State Hatchery. This sturgeon (National and Sturgeon endorsed in 1997 by the ADCNR, died at the hatchery in February 2000, Steering Committee 1993, Birstein Mobile District Corps, representatives of following a biopsy that identified it as 1993). the Alabama-Tombigbee Rivers a female. Another Alabama sturgeon Although unrestricted commercial Coalition, and us (1997 Conservation captured on August 18, 1999, in the harvesting of the Alabama sturgeon may Plan). This Plan identified the need to Claiborne Pool also died at the hatchery have significantly reduced its numbers develop life history information through shortly after transport. To date, more and initiated a population decline, the capture, tagging, and telemetry; capture than 4,000 man-hours of fishing effort present curtailment of the Alabama of broodstock for breeding and potential by professional fisheries biologists over sturgeon’s range is the result of 100 population augmentation; construction the past 3 years has resulted in the years of cumulative impacts to the rivers of hatchery facilities for sturgeon capture of five fish, three of which have of the Mobile River Basin (Basin) as they propagation; and habitat identification died in captivity. were developed for navigation, and quantification in the lower Alabama The chronology of commercial especially during the last 50 years. River (see discussion of 1997 harvest, scientific collections, and Navigation development of the Basin Conservation Plan under State incidental catches by commercial and affected the sturgeon in major ways. Conservation Efforts section). sport fishermen demonstrate a This development significantly changed In March 1997, the ADCNR significant decline in both the and modified extensive portions of river implemented the collection component population size and range of the channel habitats, blocked long-distant of the 1997 Conservation Plan. The Alabama sturgeon in the past 100 years. movements, including migrations, and Geological Survey of Alabama, Corps, Historically, the fish occurred in fragmented and isolated sturgeon Waterways Experiment Station, commercial abundance and was found populations. Alabama Power Company, and the in all major coastal plain tributaries of The Basin’s major rivers are now Service also participated in the effort. the Mobile River system. The Alabama controlled by more than 30 locks and/ Up to four crews were on the river at sturgeon has apparently disappeared or dams, forming a series of lakes that any one time using gill nets and trot from the upper Tombigbee, lower Black are interspersed with short, free-flowing lines. Most of the effort focused on the Warrior, lower Tallapoosa, and upper reaches. Within the sturgeon’s historic lower Alabama River where recent Cahaba, where it was last reported in range, there are three dams on the previous captures had been made. the 1960s; the lower Coosa, last reported Alabama River (built between 1968 and Personnel from the ADCNR caught one around 1970; the lower Tombigbee, last 1971); the Black Warrior has two small sturgeon (1 kg (2 lb) weight) on reported around 1975; and lower (completed by 1959); and the April 9, 1997, immediately below Cahaba, last reported in 1985 (Clemmer Tombigbee has six (built between 1954 Claiborne Lock and Dam. 1983; Burke and Ramsey 1985, 1995; and 1979). These 11 dams affect and The ADCNR continued fishing for Williams and Clemmer 1991; Mayden fragment 970 km (583 mi) of river sturgeon through the fall and winter and and Kuhajda 1996). The fish is known channel habitat. Riverine (flowing collected another sturgeon downstream from a single 1985 record in the Mobile- water) habitats are required by the of Millers Ferry Lock and Dam on Tensaw Delta; however, no incidental Alabama sturgeon to successfully December 10, 1997. This fish was also catches by commercial or recreational complete its life cycle. Alabama transported to the Marion Fish fishermen have been reported since that sturgeon habitat requirements are not Hatchery, where both fish were held for time. Recent collection efforts indicate met in impoundments, where weak potential use as broodstock. In January that very low numbers of Alabama flows result in accumulations of silt

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In the 1982 and 1985 notices Prior to widespread construction of The construction and operation of (47 FR 58454 and 50 FR 37958), this fish locks and dams throughout the Basin, dams and development of navigation was included as a category 2 species (a Alabama sturgeon could move freely channels were significant factors in species for which we had data between feeding areas, and from feeding curtailment of the historic range of the indicating that listing was possibly areas to sites that favored spawning and appropriate, but for which we lacked development of eggs and larvae. Alabama sturgeon and in defining its substantial data on biological Additionally, the sturgeon may have current distribution. While these vulnerability and threats to support a sought thermal refuges during summer structures and activities are likely to proposed rule; we discontinued months, when high water temperatures continue to influence the environment became stressful. Such movements (habitat) and its use by this species and designation of category 2 species in the might have been extensive, since other others, the present effects of the February 28, 1996, Notice of Review (61 Scaphirhynchus species of sturgeons are operation of existing structures, flow FR 7956)). In the 1989 and 1991 notices known to make long-distance regulation, and navigation maintenance (54 FR 554 and 56 FR 58816), the movements exceeding 250 km (155 mi) activities on the sturgeon are poorly Alabama sturgeon was listed as a (Moos 1978, Bramblett 1996). Locks and understood, in large part due to lack of category 1 candidate species (a species dams, however, fragmented the specific information on the behavior for which we have on file sufficient sturgeons’ range, forming isolated and ecology of the Alabama sturgeon. information on biological vulnerability and threats to support issuance of a subpopulations between the dams In 1994, we conducted an impact proposed rule). where all the species’ habitat needs analysis with the Corps on potential were not necessarily met. With avenues On June 15, 1993, we published a effects of channel maintenance and proposed rule to list the Alabama of movement and migration restricted, other Federal actions in the Alabama these subpopulations also became more sturgeon as endangered with critical River on the Alabama sturgeon. The habitat (58 FR 33148). On July 27, 1993, vulnerable to local declines in water analysis was summarized in a White and habitat quality caused by riverine we published a notice scheduling a Paper by Biggins (1994) (see text of the public hearing on the proposed rule (58 and land management practices and/or White Paper below). Based on limited polluting discharges. With access FR 40109). We published a notice on information on the Alabama sturgeon August 24, 1993 (58 FR 44643), restricted by dams, habitat and studies of the shovelnose sturgeon fragmentation also precluded canceling and rescheduling the hearing. in the Mississippi River system, the On September 13, 1993 (58 FR 47851), recolonization of areas when White Paper noted that Alabama subpopulations became extirpated. we published a notice rescheduling the sturgeon appear to require strong public hearing for October 4, 1993, and Most of the major rivers within the currents in deep waters over relatively historic range of the Alabama sturgeon extending the comment period to stable substrates for feeding and October 13, 1993. We held the October have also been dredged and/or spawning, and they are not generally channelized to make them navigable. 4 public hearing on the campus of associated with the unconsolidated Mobile College, Mobile, Alabama. On For example, the 740-km (459-mi) long substrates that settle in slower current Warrior-Tombigbee Waterway channel October 25, 1993 (58 FR 55036), we areas. Channel maintenance is primarily published a notice announcing a second was originally dredged to 45 meters (m) associated with specific shallow areas by 2 m (148 feet (ft) by 7 ft) and later public hearing date, reopening the with unconsolidated substrates and comment period, and stating the to 61 m by 3 m (200 ft by 10 ft). The produces small, localized, and lower Alabama and Tombigbee Rivers availability of a panel report. This temporary elevations of turbidity. Based are routinely dredged in areas of natural second public hearing was canceled in on 1994 information, the White Paper deposition to maintain navigation response to a preliminary injunction concluded that the annual maintenance depths. Dredged and channelized river issued on November 9, 1993. dredging program in the Alabama and reaches, in comparison to natural river On January 4, 1994 (59 FR 288), we lower Tombigbee Rivers does not reaches, have reduced habitat diversity published a notice rescheduling the adversely affect the Alabama sturgeon. (e.g., loss of shoals, removal of snags, second public hearing and extending Recent studies have also supported the removal of bendways, reduction in flow the comment period. However, this conclusions of the White Paper (see heterogeneity, etc.), which results in hearing was subsequently rescheduled discussion of maintenance dredging decreased aquatic diversity and in a January 7, 1994, notice (59 FR 997). productivity (Hubbard et al. 1988 and under Factor A). The White Paper in its We held the second public hearing on references therein). The deepening and entirety is at the end of this final rule. January 31, 1994, at the Montgomery destruction of shoals and shallow runs In summary, the Alabama sturgeon Civic Center, Montgomery, Alabama. or other historic feeding and spawning has undergone marked declines in We published a 6-month extension of sites as a result of navigation population size and range during the the deadline and reopening of the development likely contributed to local past century. Over-fishing and historical comment period for the proposed rule to and overall historic declines in range navigation development were list the Alabama sturgeon with critical and abundance of the Alabama significant factors in the sturgeon’s habitat on June 21, 1994 (59 FR 31970). sturgeon. decline. The Alabama sturgeon On September 15, 1994 (59 FR 47294), Dams constructed for navigation and currently inhabits only about 15 percent we published another notice that further power production also affected the of its historic range, and the species is extended the comment period and quantity and timing of water moving known to survive only in the Alabama sought additional comments on only the through the Basin. Water depths for River channel below Millers Ferry Lock scientific point of whether the Alabama navigation are controlled through and Dam, downstream to the mouth of sturgeon still existed. We withdrew the discharges from upstream dams, and the Tombigbee River. proposed rule on December 15, 1994 (59

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FR 64794), on the basis of insufficient of administrative petition findings specifically state their position on the information that the Alabama sturgeon (petitions filed under section 4 of the listing. Because of widespread concern continued to exist. Act) is the fourth priority. This final over the proposed action, we reopened On September 19, 1997, after capture rule is a Priority 2 action and is being the comment period on July 12, 1999 of several individuals confirming that completed in accordance with the (64 FR 37492), through September 10, the species was extant, we included the current Listing Priority Guidance. 1999. Alabama sturgeon in the candidate During the comment periods, we species Notice of Review (62 FR 49403). Summary of Comments and received approximately 4,000 cards, On March 26, 1999, we published a Recommendations letters, and reports concerning the proposed rule to list the Alabama We have reviewed all written and oral proposal. Most expressed opposition to, sturgeon as endangered, without critical comments received during the comment or concern about the proposed listing; habitat (64 FR 14676). We invited the periods and have incorporated however, a number of individuals public and State and Federal agencies to information updating the available data supported the action. Opposition to the comment on the proposed listing; the into the appropriate sections of this proposed listing primarily centered on comment period was open through May rule. We have organized substantive perceived economic effects of the 26, 1999. On May 25, 1999, we comments concerning the proposed action, questions about and published a notice announcing a June rule, Fain et al. 2000, and the science, and the adequacy of current 24 public hearing on the proposal at the Conservation Agreement Strategy into State conservation actions to protect the Montgomery Civic Center and an specific issues, which may be sturgeon. We received comments from extension of the comment period paraphrased. We grouped comments of four Federal agencies and seven State through July 5, 1999 (64 FR 28142). To a similar nature or subject matter into a agencies. The remaining comments were allow time for additional public number of broader issues. These issues from individuals or representatives of comments, we reopened the comment and our response to each are organizations or groups. The Governor period on July 12, 1999, through summarized in the three subsections of Alabama and the ADCNR stated that September 10, 1999 (64 FR 37492). below. existing State protection and recovery On January 11, 2000, we reopened the Proposed Rule efforts are adequate, and opposed the comment period (65 FR 1583), to make listing. We convened a team of Service available for comment a 1999 study In the March 26, 1999, proposed rule experts to review the issues raised, ‘‘The Development of a DNA Procedure (64 FR 14676), we requested all including issues of taxonomy and for the Forensic Identification of Caviar’’ interested parties to submit factual genetics, during the comment period for (Fain et al. 1999). On February 7, 2000 reports or information that might the Alabama sturgeon proposed rule and (65 FR 5848), we withdrew contribute to the development of a final to ensure they were fully and correctly consideration of this study from the rule. We sent direct notification of the addressed prior to preparation of our decision making process. For clarity and proposal to 192 institutions and final decision document on this species. ease of understanding, we replaced it individuals, including Federal and State Below are issues raised in these with a report containing information agencies, county governments, scientific comments relating to this action and our relevant to the Alabama sturgeon listing organizations, and interested parties. responses to each. process (Fain et al. 2000). We accepted We published legal notices announcing Issue 1: The proposed listing was not comments on this report through March the proposal and inviting public based on the best scientific and 8, 2000. comment on April 18, 1999, in the commercial data available, as required We reopened the comment period Montgomery Advertiser, Montgomery, by section 4(b)(1) of the Act. The again on February 16, 2000 (65 FR Alabama; and the Mobile Press-Register, literature cited to support the proposed 7817), to announce the availability of Mobile, Alabama. The comment period rule was either not applicable, and obtain comments on a Conservation closed on May 26, 1999. On May 6, erroneous, incomplete, misinterpreted, Agreement and Strategy (Conservation 1999, we received a request for a public or simply wrong. Agreement Strategy) for the Alabama hearing from the Alabama-Tombigbee Response: We thoroughly reviewed all Sturgeon signed by the ADCNR, the Rivers Coalition. We published a notice scientific and commercial data in our Corps, the Alabama-Tombigbee Rivers on May 25, 1999 (64 FR 28142), possession in preparing the proposed Coalition, and us on February 9, 2000. scheduling the public hearing and rule. We sought and reviewed historic We accepted comments on the extending the comment period through and recent publications and Conservation Agreement Strategy and July 5, 1999. We sent direct notification unpublished reports concerning the its relevance and significance to the of the hearing and comment period Alabama sturgeon, closely related listing decision until March 17, 2000. extension to Federal and State agencies, species, and sturgeon literature in We published Listing Priority county governments, scientific general, as well as literature and reports Guidance for Fiscal Year 2000 in the organizations, and other interested on human impacts to river systems and Federal Register on October 22, 1999 parties. Legal notices announcing the resulting responses in faunal (64 FR 57114). That guidance clarifies public hearing and comment period composition and channel habitat the order in which we will process extension were published on June 20, integrity. Not all literature or reports rulemakings. Highest priority is 1999, in the Montgomery Advertiser, reviewed were cited; however, the processing emergency listing rules for Montgomery, Alabama; and the Mobile appropriate literature was cited to any species determined to face a Press-Register, Mobile, Alabama. We document the text in the proposal. We significant and imminent risk to its held the public hearing at the used our best professional judgment well-being (Priority 1). Second priority Montgomery Civic Center, Montgomery, and, while we considered all of the (Priority 2) is processing final Alabama, on June 24, 1999, with information, we relied upon data and determinations on proposed additions approximately 1,000 people in documents which in our professional to the lists of endangered and attendance. We received oral comments opinion are the best scientific and threatened wildlife and plants. Third from 78 individuals; of these, 66 commercial data and the most reliable. priority is processing new proposals to expressed opposition to the listing, 3 Issue 2: The Service does not have add species to the lists. The processing supported the action, and 10 did not sufficient scientific information to

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26443 conclude that the Alabama sturgeon is they consider to be the best available available articles have also been a distinct species from the common scientific and commercial data. published since 1994 that recognize the shovelnose sturgeon. Response: The list of literature cited taxonomic validity of the species (see Response: The Alabama sturgeon is in the proposal indicates which reports response to Issue 2). Absent publication nationally and internationally and studies we consider to be the best of alternative or differing taxonomic considered a valid species. The available scientific and commercial data and conclusions through the peer Alabama sturgeon was initially data. We have reviewed all information review scientific process, the species described as a distinct species in a peer- currently available to us in assessing the will continue to be recognized as reviewed, widely distributed museum status of the Alabama sturgeon. A list of Scaphirhynchus suttkusi by the periodical (Williams and Clemmer the literature cited in the proposal is taxonomic community at large. 1991). The species was considered valid available upon request, as noted in the Issue 6: No scientists have directly in a catalog of fishes of Alabama proposed and final rules, and was challenged any of the scientific data or (Boschung 1992) and in a catalog of provided to interested parties during the conclusions of the dozen scientists who fishes of North America (Mayden et al. open comment period. We also allowed question the taxonomy of the Alabama 1992). Species status was reassessed, interested parties access to review our sturgeon. reaffirmed, and published in the files and administrative record on two Response: With the one, limited ichthyological journal Copeia (Mayden occasions. In conducting our analysis, exception discussed below, none of the and Kuhajda 1996). The Alabama we noted opposing views available to us data and conclusions of the scientists sturgeon is listed as a separate species on taxonomy; genetics; distribution and who question the taxonomy of the in State fish books for Alabama (Mettee abundance; life history; historic, Alabama sturgeon have been made et al. 1996) and Mississippi (Ross and present, and future threats; and available for review by the scientific Brenneman in press). The Alabama vulnerability to extinction. We ichthyological community through the sturgeon is listed as a valid species in evaluated all information with regard to accepted process of peer review and a catalog of fishes of the world its applicability to the determination of publication. Only a single peer- (Eshmeyer 1998). Birstein et al. (1997) species status under the Act and reviewed paper has been published that included the Alabama sturgeon in a list acceptance by the scientific community. questions the taxonomy of the Alabama of all sturgeon species of the world. The Issue 5: The Service was provided, sturgeon (Bartolucci et al. 1998). Alabama sturgeon is considered a and has ignored, information However, that publication was a distinct and valid species by the discrediting species status for the methods paper concerning a statistical American Society of Ichthyologists and Alabama sturgeon. Only 4 of 17 approach to compare the significance of Herpetologists (1995, 1999 in litt.), and scientific reports, documents, and morphological characters. It was by the Southern Fishes Council statements provided to the Service in published in a statistically oriented Technical Advisory Committee (Warren 1993 and 1994 that opposed listing the journal and not in a zoological, et al. in prep.). Thus, the Alabama Alabama sturgeon as a distinct species ichthyological, or systematics journal, sturgeon is currently recognized as a at that time, were cited in the 1999 and it made no attempt to formally valid taxonomic species and will proposed rule. The Service has ignored revise the taxonomy of the Alabama continue to be so recognized unless all opposing scientific documents, sturgeon. We received letters from overturned at some future date by the except a few. ichthyologists during the comment scientific community through the formal Response: We reviewed the period pointing out shortcomings of publication and peer review process. information received in 1993 and 1994 Bartolucci et. al (1998) for taxonomic Issue 3: The Service should conduct that criticized the taxonomy of the purposes. In a review of the systematics comprehensive taxonomic and life Alabama sturgeon prior to preparing the and taxonomy of the Alabama sturgeon, history studies of the genus March 26, 1999, proposed rule. The Mayden and Kuhajda (1996) presented Scaphirhynchus on a river system by views expressed in the documents were new data, addressed many of the river system basis prior to listing. generally summarized in the proposed criticisms of the original description, Response: While having rule, and several were cited as and substantiated species status for the comprehensive knowledge of a species examples. In proposed and final rules, Alabama sturgeon. and its near relatives throughout their as well as in most scientific documents, Issue 7: The Service did not list the geographic ranges prior to listing would only references used to document or references that were cited in the be ideal, it is seldom, if ever, possible. clarify statements are explicitly cited. proposed rule. Resolution of all aspects of taxonomy The reports referenced by commenters Response: In order to save publication and life history for this genus could take that were not cited in the proposal space and expense, it is common years, perhaps decades. The Act criticized the original description of the practice not to include the references requires us to use the best available Alabama sturgeon (Williams and cited in the published proposal. The information to determine the status of a Clemmer 1991) and expressed proposed rule clearly noted that a species, subspecies, or alternative views of its taxonomic complete list of references was available population. The available information status. We reviewed these documents upon request. We have provided copies clearly indicates that the Alabama and have not ignored their views; of references to all who have requested sturgeon is in danger of extinction. however, only one taxonomic treatment them. Resolving unpublished taxonomic of the species (Mayden and Kuhajda Issue 8: Some of the literature cited dissent prior to a proposal or final 1996) has been published in the 9 years for scientific background was criticized decision is not required. The threat since the fish was first described. It as outdated and superseded by later assessment that currently applies to the supersedes the original description and reports. Other studies were said to be Alabama sturgeon as a taxonomic postdates the unpublished accounts irrelevant to the status of the sturgeon species would apply equally to a referenced that disputed taxonomic because they did not directly address subspecies or distinct population validity. Mayden and Kuhajda (1996) the Alabama sturgeon. segment. scientifically documented species Response: We disagree with the Issue 4: The Service has failed to recognition of the Alabama sturgeon. assessment that the literature cited in clearly indicate which reports or studies Several national and internationally the proposed rule is outdated and

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 26444 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations superseded by later reports. Historic peer-reviewed literature and This paper used Bayesian Analysis status reviews and surveys were cited, professional scientific reports. The statistical methodology to compare the along with more recent studies (see Alabama sturgeon’s habitat needs, principal components of measurement Background section), to document reproductive cycles and life history data from samples of Alabama and efforts to determine the status of the requirements are not completely known. shovelnose sturgeon. Their results species over a period of two decades. For those areas where there is supported previous unpublished Review of studies on closely related and insufficient or no information we have conclusions (Howell et al. 1994) that the better known sturgeons provides utilized information garnered from peer- Alabama and shovelnose sturgeon were virtually the only insight to the life reviewed scientific studies of the closely indistinguishable by principal history, ecology, and vulnerability of the related pallid sturgeon and shovelnose component analyses of measurement Alabama sturgeon. It is common and sturgeon (see response to Issue 8’’). data. The publication did not identify accepted practice in science to deduce Issue 11: Scientific disagreement with the measurement data that were the needs and vulnerability of poorly the 1991 Williams and Clemmer analyzed, nor was the source of their known, rare species, or those that are description constitutes substantial data cited. Dr. Bartolucci later clarified difficult to study, by using information disagreement among recognized experts. in submissions at the June 1999 public from more common and better known, Response: Taxonomic disagreements hearing on the proposed rule that data related species. It is also common in are not uncommon in any field of provided by Williams and Clemmer science to use surrogate species to systematic biology. While there may be (1991) were used. In addition, deduce effects of environmental changes individuals that disagree with the Bartolucci et al. (1998) did not review, on another species with appropriate sturgeon’s species status, we do not criticize, or even reference the Mayden caveats that recognize known think that this disagreement is and Kuhajda (1996) evaluation of the similarities and differences. For substantial. Taxonomic disagreements taxonomy and systematics of the example, it is a common practice in the are resolved through the peer-review Alabama sturgeon, and additional biomedical sciences to use experimental publication process, where evidence mensural (based on measurements) and studies of laboratory mice to infer the and interpretation are laid out to the meristic (based on counts) data, as well potential carcinogenic effects of rigorous scrutiny of the scientific as new diagnostic characters presented environmental contaminants and to community. None of the biologists who by Mayden and Kuhajda (1996) were not evaluate the physiological effects of new disagree with the validity of the specific addressed. drug treatments before they are ever status of the Alabama sturgeon has Issue 14: The Service financially tested on humans. presented his or her views through the underwrote the 1996 Mayden and Issue 9: The Service still claims that formal process of submitting papers to Kuhajda paper through a Service the 1991 description of the Alabama appropriate zoological journals. We will contract. sturgeon, discredited by several give consideration only to those Response: We did not provide funds scientists, is the best available disagreements which are found in the or any other type of support for the 1996 information on the fish. appropriate zoological journals. Mayden and Kuhajda paper. Response: We recognize errors in the Regardless of the taxonomic status Issue 15: The Service failed to original description (Williams and recognized in the proposal and final evaluate Bartolucci et al. (1998) in its Clemmer 1991) that have been brought rule, the scientific process remains 1998 Status Review Report for the to our attention since 1993. available to dissenting opinions through Alabama sturgeon and failed to analyze Furthermore, we explicitly reference a formal peer-review publication in or consider the publication in the rigorous taxonomic and systematic appropriate journals. proposed rule, as evidenced by an evaluation published in the journal Issue 12: Mayden and Kuhajda (1996) erroneous reference to the paper in the Copeia (Mayden and Kuhajda 1996) that failed to do a thorough river system by proposal. firmly establishes the species name, and river system analysis of shovelnose Response: We received comments on the species name is widely used in peer- sturgeon. our 1998 Status Report from Dr. Howell reviewed publications. In keeping with Response: The Mayden and Kuhajda referred to the publication of a recent accepted practices in scientific (1996) paper is the most thorough and and relevant paper (Bartolucci et. al nomenclature and regardless of errors in comprehensive analysis of Alabama 1998) and, at our request, provided us the original description, the Williams sturgeon systematics and taxonomy with a copy. We reviewed, analyzed, and Clemmer (1991) article will published to date. We are required to and considered the information continue to be recognized by the use the best scientific and commercial published in Bartolucci et al. (1998) and ichthyological professional community information that is available. The cited the paper in the proposed rule as as the source of the name information and conclusions presented part of a brief review of the taxonomy Scaphirhynchus suttkusi as long as the in this account were peer-reviewed and of the Alabama sturgeon (refer to Issue taxonomy is considered valid (see also accepted for publication by Copeia, a 13 for a more detailed discussion of our response to Issue 16’’). As noted in our highly respected scientific journal, and analysis of this paper). We acknowledge response to Issue 2,’’ the Alabama one recognized as appropriate for that the text in the proposed rule is sturgeon is currently and widely describing new species of fish. misleading as to the statistical recognized in published literature as a Issue 13: The Mayden and Kuhajda methodology employed by Bartolucci et valid taxonomic species. (1996) paper is not the most recent al. (1998). Therefore, we have modified Issue 10: Certain information science regarding the taxonomy of the the language to clarify that Bartolucci et presented in the proposal regarding the Alabama sturgeon. Bartolucci et al. al. (1998) used Bayesian Analysis sturgeon’s habitat needs, reproductive (1998) reviewed, criticized, and statistical methodology to compare the cycles, and life history requirements is trumped the Mayden and Kuhajda multivariate means of measurements without basis in fact or science. (1996) paper. taken from samples of Alabama and Response: We have used the best Response: Bartolucci et al. (1998) was shovelnose sturgeon (see Background available information for assessing the published in a journal oriented to section). sturgeon’s biological needs. This statistical methodology, not an Issue 16: The Service has incorrectly information has been in the form of ichthyological or systematics journal. cited the rules set forth by the

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International Code of Zoological and Kuhajda (1996). The genetic studies Response: According to information Nomenclature (ICZN). Complying with noted above are consistent with that available to us, the request for the rules does not validate a species. distinction. The absence of detectable clarification by the Mobile District was ICZN is heavily based on the law of differences by other investigators (e.g., made to the Omaha District, U.S. Army priority. Based on priority, Schill and Walker 1994, Fain et al. Corps of Engineers. The lack of response Scaphirhynchus suttkusi is a synonym 2000) only attests to the very close to requests for clarification from one of S. platorynchus. evolutionary relationship between Corps District to another has no bearing Response: The ICZN deals with the Alabama and shovelnose sturgeon. The on us or the final report. criteria for publication of new scientific Alabama sturgeon meets the definition Issue 22: The Service claims that the names. Chapter 3, Article 7, of the ICZN of an endangered species. three Alabama sturgeon samples tested recommends publication in an Issue 19: The Service has completely by Genetic Analyses, Inc., (1995) are the appropriate scientific journal or ignored the Schill and Walker report same species even though one specimen monographic series. As stated in the (1994), which demonstrated that the was found to be genetically different proposed rule, the description of the shovelnose sturgeon and the Alabama from the other two, and genetically the Alabama sturgeon (Williams and sturgeon are the same species. same as the shovelnose. Clemmer 1991) complies with ICZN Response: The proposed rule cited Response: The 1995 study found that rules and recommendations. Chapter 6, Schill and Walker (1994) who noted that all three Alabama sturgeon genetic Article 23, of the ICZN sets forth the shovelnose, pallid, and Alabama samples were substantially divergent Principle of Priority. This principle sturgeon were indistinguishable at the from shovelnose and pallid sturgeon. states that The valid name of a taxon is mitochondrial cytochrome b locus. The However, two new Alabama sturgeon the oldest available name applied to it proposed rule also noted similar samples were equally divergent from a * * * The oldest name applied to a findings for other currently recognized previously tested Alabama sturgeon distinct species of Scaphirhynchus species. Dr. Jeffrey Wells (in litt. 1999), sample. For this reason, Genetic Analyses, Inc., recommended examining endemic to the Mobile River Basin is a geneticist hired by the Alabama- nuclear DNA genetic diversity within Scaphirhynchus suttkusi Williams and Tombigbee Rivers Coalition to review the Alabama sturgeon population as Clemmer 1991. sturgeon genetic studies, also concluded Issue 17: The Service should request additional samples become available. that the Schill and Walker study, among the ICZN to render an opinion on the We made these findings clear in the others, does not disprove that the question of the taxonomic validity of the proposed rule. Alabama sturgeon is a separate species. Alabama sturgeon. Issue 23: The Campton et al. (1995) Response: The purpose of the ICZN’s Issue 20: The Service hired Genetic report found a difference in only 1 base Principle of Priority is to promote Analyses, Inc., to conduct additional pair out of 435 between the Alabama stability of names. In rare cases, the genetic studies. The 1999 proposal did sturgeon and the shovelnose sturgeon. ICZN may rule on nomenclature priority not address their 1994 recommendation The report concluded that the Alabama if requested. Regarding disagreements for more studies. sturgeon is either a separate subspecies over newly described species, the Response: In 1994, we were made or a distinct population segment. The accepted procedure is to present data, aware of an imminent nuclear DNA Service failed to explain the conclusion conclusions, and nomenclature changes genetic study of pallid and shovelnose of the Campton et al. (1995) report and in appropriate peer-reviewed journals. sturgeon to be jointly funded by the U.S. inappropriately interpreted the report to Issue 18: Various genetic tests have Army Corps of Engineers, Omaha mean only that the Alabama sturgeon is been conducted on Alabama sturgeon, District, and the Service’s Region 6. At a separate species. shovelnose, and pallid sturgeon. The our request, tissues from a single Response: Campton et al. (1995) noted results of these tests have been Alabama sturgeon available at that time that the level of genetic similarity that inconclusive and do not support the were included in this previously they observed between Alabama listing of the Alabama sturgeon as an arranged study. The 1994 Genetic sturgeon and pallid and shovelnose endangered species. Analyses, Inc., data indicated some sturgeon was more typical of isolated Response: The proposed rule genetic divergence of Alabama sturgeon populations or subspecies than recognizes the limited results of genetic from both pallid and shovelnose congeneric species. However, they also evaluations for distinguishing species of sturgeon. The report noted, however, referred the reader to similar levels of Scaphirhynchus. However, genetic that their results were based upon DNA genetic similarity between species and studies cited in the proposed rule, and samples from a single Alabama sturgeon even genera of cichlid fishes in Africa. several received during the comment and encouraged expanding the The report concluded that the genetic periods have been consistent with investigation should additional data were consistent with biogeographic biogeographic arguments for recognizing specimens become available. In 1995, and morphological arguments for Alabama sturgeon as an isolated Genetics Analyses, Inc., reported similar recognizing S. suttkusi (Alabama phylogenetic (classification of genetic results on two additional, sturgeon) as an endangered species or organisms based on their deduced recently collected Alabama sturgeon. distinct population segment * * *. In evolutionary relationships) lineage They also noted differences between our summary of their results, we noted (Campton et al. 1995, 1999, in press; individual Alabama sturgeon, and again that the relative genetic differences Genetic Analyses, Inc. 1994, 1995; recommended additional studies. We among the three species was small. Mayden et al. 1999). Mayden and provided these conclusions and However, Campton et al. (1995) clearly Kuhajda (1996) further demonstrated recommendations in the proposal. demonstrated that pallid and that the degree of morphological Issue 21: The U.S. Army Corps of shovelnose sturgeon are genetically divergence between Alabama and Engineers, Mobile District, requested distinct in areas where they naturally shovelnose sturgeon warranted clarification of a number of issues raised co-occur, and they also provided genetic taxonomic species status for the former. in the Genetic Analyses, Inc., 1994 draft (mtDNA) data consistent with the In preparing the proposed rule, we report. These issues were not addressed taxonomic distinction of Alabama relied primarily upon the taxonomic in the 1994 Genetic Analyses, Inc., final sturgeon from shovelnose sturgeon. A and systematic evaluation of Mayden report. follow-up study (Campton et al. 1999)

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 26446 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations reaffirmed their earlier results regarding needed. However, as discussed in the associated with its decline in range. the genetic distinctiveness of Alabama previous issue and Issue 60, genetic data This finding is supported by historic sturgeon with additional samples of alone is not conclusive in distinguishing trends and recent collection efforts (see pallid and shovelnose sturgeon from the species, particularly for those species Background section). Our primary Atchafalaya River. To date, those which do not occur together. However, concern under Factor A is whether the investigators (Campton et al. 1995, the genetic studies conducted to date by quantity of habitat currently occupied 1999) have examined 75 specimens of Campton et al. (1995, 1999) are by the sturgeon is adequate to support Scaphirhynchus from the Missouri and consistent with the results of Mayden a self-sustaining, viable population. The Atchafalaya Rivers, and none of the and Kuhajda (1996) and the taxonomic Background section of the proposal and specimens possessed the mtDNA distinction of Alabama sturgeon. this final rule also cite studies reporting haplotype that characterized the three Issue 26: Dr. Stephen Fain was long-distance movements of the other Alabama sturgeon they examined. One inappropriately influenced by a Service species of Scaphirhynchus, possibly nucleotide substitution out of 435 base listing biologist to withdraw from between feeding and spawning sites. pairs demonstrates only the relatively cooperative genetic studies of the While most of the impacts to the slow rate (i.e., over geological time Alabama sturgeon. sturgeon’s habitat were historic, gradual, scales) at which genetic changes in DNA Response: Dr. Fain is the DNA and cumulative, they still may affect the molecules occur over time. The genetic Research Team Leader at the National sturgeon’s ability to move within the data are, thus, consistent with Fish and Wildlife Service Forensics system between areas for feeding and biogeographic arguments that Alabama Laboratory in Ashland, Oregon. We reproduction. A reduction in natural sturgeon have been isolated in the were notified by ADCNR fisheries range from about 1,600 km (1,000 mi) to Mobile River Basin for at least 10,000 biologists that they had provided Dr. 216 km (134 mi) of river channel is years. Fain with samples for genetic studies on certainly cause for concern in a wide- Issue 24: Dr. Jeffery Wells reviewed the genus Scaphyrhinchus. We ranging fish species with possible Campton et al. (1995), and Mayden et al. subsequently contacted Dr. Fain to migratory needs. This concern is (1999) (received during the open ensure that he was aware of several supported by other examples in the comment period), and conducted previous genetic and morphological fisheries literature (e.g., salmon, striped mtDNA analysis on an additional eight studies on the genus. We did not ask Dr. bass, and robust redhorse, as well as shovelnose sturgeon using techniques Fain to withdraw from cooperative other sturgeon species). Occupied described by Campton et al. (1995). Dr. genetic studies. We also informed Dr. habitat quality was not directly Wells criticized the conclusions reached Fain that we would welcome additional identified as a known threat. We have in both previous studies and stated that information on genetics of the Alabama some concern that the timing of water these studies, as well as his own, were sturgeon. Dr. Fain’s research was releases below Millers Ferry Lock and inconclusive in determining the completed in late 1999, and Dam may have negative effects on potential status of the Alabama sturgeon summarized in Fain et al. (1999, 2000). sturgeon reproduction. Other sturgeon as a separate species using mtDNA. These reports were made available for species’ reproductive success has been Response: Genetic data are not public review and comment by affected by changes in water quantity commonly used to prove that allopatric reopening the comment period between and timing (see studies cited in the (do not occur in the same place) January 11 and March 5, 2000. discussion under Factor A). We populations are different species. Comments pertaining to this work are acknowledge, however, that the lack of However, Campton et al. (1995, 1999) summarized below in Issues 59 through specific information on Alabama and Mayden et al. (1999) identified a 61. sturgeon reproductive habitat unique mtDNA haplotype for Alabama Issue 27: The Service failed to explain requirements or the use of this area by sturgeon that has not been observed which, if any, of the five factors they are the sturgeon for reproduction limits our among over 40 shovelnose and 30 pallid relying upon to justify the proposed ability to draw definite conclusions as sturgeon examined to date from the listing. to current impacts on the Alabama Mississippi and Missouri River Basins. Response: Factor A clearly establishes sturgeon. While this genetic data alone does not the present curtailment of range and the Issue 29: The Service has failed to prove that they are distinct species, it is apparent causes of curtailment. Factor E consider the myriad of existing Federal, consistent with Mayden and Kuhajda’s states that the primary threat to the State, and local laws that provide (1996) taxonomic description. immediate survival of Alabama sturgeon additional protection for the Alabama Issue 25: Reviews of Campton et al. is its small population size and its sturgeon and its habitat. Factor D fails (1999) by Drs. Mike Howell and Jeffrey apparent inability to offset mortality to justify listing the Alabama sturgeon Wells clearly indicate that more genetic rates with reproduction and as an endangered species. testing is required to determine the true recruitment, as evidenced by declining Response: We agree that a number of genetic status of the three species of rates of capture over the past two existing laws and regulations benefit the Scaphirhynchus. decades. At the conclusion of the sturgeon and its habitat. Factor D, Response: We received Campton et al. summary of factors, the proposal stated: however, addresses the inadequacy of (1999) during the open comment period Endangered status is appropriate for the protective regulatory mechanisms. In and, therefore, did not consider it in Alabama sturgeon due to extensive the proposed rule and in this final rule, preparing the proposal. However, as curtailment of its range and extremely we note that, within the scope of other mentioned previously, the report of low population numbers. environmental laws or Alabama State Campton et al. (1999) is consistent with Issue 28: The Service’s conclusion law, there is currently no requirement to the results of their previous study that current habitat conditions imperil specifically consider the effects of (Campton et al. 1995) and reaffirms the Alabama sturgeon is unsupported by actions on the Alabama sturgeon or their conclusions regarding the genetic the available scientific information. ensure that a project will not jeopardize distinctness of the three Response: Factor A notes the its continued existence. We concur that Scaphirhynchus species. Genetics of disappearance of the Alabama sturgeon this issue alone does not present a Scaphirhynchus is poorly known and from about 85 percent of its historic significant threat to the Alabama we acknowledge that more work is range, and that human activities are sturgeon at this time. The Act requires

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Interviews with commercial during intensive fishing efforts since of Factors Affecting the Species section fishermen and fisheries biologists also publication of the proposal in 1999. for a complete description of the threats. indicate that the Alabama sturgeon has While it is unfortunate that directly Issue 30: Minimum Viable Population disappeared from the Millers Ferry comparable data do not exist through all (MVP) is a theoretical hypothesis and reach of the Alabama River, and the decades, the disappearance of the not an established quantifiable Cahaba, lower Tombigbee, and Mobile/ species from much of its range, the technique. The Service has no data Tensaw Rivers during the past 25 years. anecdotal accounts by knowledgeable (population size, mortality and Recent collection efforts suggest a fisheries biologists and commercial reproduction rates, etc.) to determine an decrease in abundance of the species in fishermen of a decline in captures, and MVP. the lower Alabama River and the the documented intensive efforts Response: Over the past few decades, Claiborne Dam reach during the past 15 required to capture the species during biologists have been studying the years. the last four years clearly indicate a processes of extinction for small The first attempt to determine the reduction in the range and numbers of populations (see Soule 1987). The status of the Alabama sturgeon in the Alabama sturgeon in the Mobile River likelihood of species extinction and/or Mobile River Basin was by Clemmer Basin over the past two decades. extirpation (loss) of isolated populations Issue 32: There is no evidence that the (1983). Although an ADCNR fisheries increases dramatically as population 1898 reported catch of shovelnose biologist reported regular catches of size diminishes (Shaffer 1987). The sturgeon were not immature Gulf shovelnose (=Alabama) sturgeon in the Alabama sturgeon has been reduced to sturgeon. about 15 percent of its historic range. Cahaba River during the early 1980s, Response: The U.S. Commission of Collection history and anecdotal Clemmer documented recent trends in Fish and Fisheries (1898) represents the accounts from commercial fishermen lower numbers of sturgeon through best available commercial information demonstrate a continued decline in interviews with commercial fishermen on sturgeon fisheries at the turn of the catches over the past few decades or, at and professional fisheries biologists. century in the Mobile River Basin. The a minimum, an increased effort required Burke and Ramsey (1985) reached the shovelnose sturgeon was described in to collect the fish. same conclusion of declining Alabama 1820, and the Atlantic sturgeon (as the A number of techniques have been sturgeon from interviews with veteran Gulf sturgeon was known at that time) developed to estimate the probability of fisheries biologists, conservation was described in 1814. There is no extinction for populations of animals officers, and full-time commercial evidence to suggest that the fisheries over time, or to predict the minimum fishermen. They conducted random biologists compiling the 1898 statistics population size (MVP) necessary for a stratified interviews with full-time were not able to distinguish the two population to persist for a given time commercial fishermen and reported 18 species. The lake sturgeon, another period (see Soule 1987). In the proposed pre-1975 captures and 7 post-1975 sturgeon species more similar in rule, we did not attempt to determine a captures. Commercial fishermen appearance to the Gulf sturgeon than the hypothetical numerical population size reported recent declines in captures of shovelnose, was also reported in the necessary to sustain the Alabama Alabama sturgeon in the Millers Ferry statistics. sturgeon, and we concur that the reach of the Alabama River and the Issue 33: The Service should address information does not currently exist to Cahaba River. Burke and Ramsey (1995) the State’s efforts to conserve the define a numerical MVP. We used the described their ability in 1985 to Alabama sturgeon under Factor E. MVP terminology to depict that the capture Alabama sturgeon with relative Response: The ADCNR fishing and Alabama sturgeon’s increasing ease in the Alabama River below Millers hatchery efforts are addressed in the restriction in range, its rarity, and its life Ferry Lock and Dam. ADCNR biologists Background section. The State’s 1997 history render the species highly Tucker and Johnson (1991, 1992) Conservation Plan was addressed in vulnerable to chance extinction. reported on sturgeon collection efforts detail in the proposed rule under However, for purposes of clarity, we and interviews with conservation Available Conservation Measures. We have removed discussion of MVP from officers, fisheries professionals, and have moved this discussion under this final rule and instead refer to the commercial and sports fishermen. They Factor E in this final rule, as threat presented to the Alabama employed a variety of collection recommended. sturgeon by its small population size. methods in the lower Alabama River, Issue 34: The Service has consistently Issue 31: The Service has offered no Claiborne Reservoir, Millers Ferry opposed suggestions to use shovelnose proof or evidence of a current or Reservoir, Tombigbee River, and Cahaba sturgeon from the Mississippi River continuing decline in the Alabama River without capturing any sturgeon. drainage to augment Alabama sturgeon sturgeon’s population numbers in the However, interviews yielded reports of populations in the Mobile River Alabama River. Alabama sturgeon have several recent captures of small sturgeon drainage. been rare for decades and are as in the lower Alabama and Cahaba Rivers Response: Introducing shovelnose plentiful in the Alabama River today as during 1991 and 1992. As noted in the sturgeon from the Mississippi River they were 25 years ago. proposed rule, the most intensive drainage into the Mobile River drainage Response: We concur that Alabama fishing effort to date was initiated in is ill-advised at the present time because sturgeon have probably been uncommon early 1997. At the time of publication of doing so could lead to, or accelerate, the in the Mobile River Basin for the past the proposal, more than 3,000 man- extinction of Alabama sturgeon through few decades. However, collection data hours of fishing effort directed toward hybridization, genetic swamping, or over this time period demonstrate a sturgeon were expended over an 18- competition. decline in distribution, as well as a month period by professional fisheries Issue 35: The Service requires reduction in population size. For biologists. In addition, commercial and continued cooperation from commercial example, collection data indicate that recreational fishermen were asked to and recreational fishermen and the the species has disappeared from the report any captures. As a result of this ADCNR to successfully recover the

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Alabama sturgeon. Listing the Alabama where protection under the Act is no Response: The U.S. Coast Guard sturgeon under the Act will impede that longer warranted. comments were based on a premise that cooperation by enacting Federal take Issue 37: The proposed listing of the listing the sturgeon would stop prohibitions and penalties, and funds Alabama sturgeon has made it more navigation maintenance. They were available for candidate conservation difficult for ADCNR to implement the unaware of an impact assessment on cannot be used for recovery efforts. 1997 Conservation Plan because of navigation maintenance conducted and Response: We agree that cooperation permitting requirements, conferencing agreed to by both us and the Mobile from ADCNR and commercial and limitations, and Service propagation District Corps of Engineers that recreational fishermen, as well as policies. concluded that navigation dredging others, is essential to the recovery of the Response: Proposed endangered would not need to be eliminated, Alabama sturgeon. Section 6 of the Act status has not affected implementation modified, or altered should the Alabama allows us to enter into cooperative of the 1997 Conservation Plan. We have sturgeon be listed. They have since been agreements with States to assist them in no permitting requirements for provided with this information. conserving endangered or threatened proposed species; we will expedite Issue 41: The White Paper is an wildlife. A section 6 cooperative permitting procedures once this final informal agreement that must be agreement between the State of Alabama rule is published. The section 7 endorsed at the national level to be and us recognizes the State’s authority conferencing requirements were met believable. The Service should include to establish and implement programs for with the White Paper (Biggins 1994) and the White Paper in its entirety in the the conservation of federally listed subsequent correspondence between the final rule to list the Alabama sturgeon. species and provides funding assistance Corps and us. We published a Draft Response: The White Paper (Biggins towards their conservation. Under the Policy Regarding Controlled 1994) is not an agreement, but a 1994 cooperative agreement, the ADCNR may Propagation of Species Listed Under the assessment of impact of a Federal continue to implement the 1997 Endangered Species Act on February 7, agency’s activities on a proposed Conservation Plan for the Alabama 1996 (61 FR 4716). We will work with species. This assessment found no sturgeon, or any future approved the State to ensure that the Alabama adverse effect to the Alabama sturgeon from current Corps activities and recovery plan. ADCNR is also eligible sturgeon propagation program is in permitting activities in the lower for funds for conservation of the compliance with the policy, once we Alabama River. The no-adverse-effect sturgeon under our recovery and section publish the policy in final form. determination was formalized by an 6 programs. Implementing regulations Collection efforts have continued, and exchange of letters between the two (50 CFR 17.21(c)(5)) also provide States two fish have been caught since the agencies that same year. In 1998 and under cooperative agreements certain listing proposal was published. The 1999, both agencies reaffirmed this authorities for conducting actions for State conducted an unsuccessful conclusion following studies that the conservation (i.e., recovery) of attempt to propagate the sturgeon endangered species. supported the determination. Federal following publication of the proposal. Listing the Alabama sturgeon under agency activity impact assessments on the Act increases penalties for already Issue 38: Candidate conservation listed species, required by the Act, are prohibited acts. Unauthorized removal funds appropriated for the FY 2000 conducted at the field level. Should of sturgeon from the waters of Alabama budget cannot be used for sturgeon disagreements occur, they may be is already prohibited by State law. conservation, should the Alabama elevated to the Regional and District Cooperation and assistance from private sturgeon be listed. level. Although there was no individuals, such as recreational and Response: Funds appropriated for disagreement between agencies commercial fishermen, can continue Alabama sturgeon conservation in the concerning the no-adverse-effect under both Federal and State permitting FY 2000 budget were committed to determination on the Alabama sturgeon, authority. Alabama sturgeon conservation efforts letters reaffirming the determination Listing of the Alabama sturgeon under while the sturgeon was a proposed were exchanged between the Service’s the Act does not effect use of the fiscal species. (Refer to Issue 35 for further Regional Director and the Corp’s year 2000 candidate conservation funds information.) Division Commander because of already given to the State. We have Issue 39: Listing will transfer continued public concern. There is no obligated this money to the State of responsibility for managing the Alabama disagreement between the agencies at Alabama; they may use it for the sturgeon from the State to the Service, the field, Regional, or District levels; purpose of candidate conservation and and work on the 1997 Conservation Plan therefore, there is no need to elevate this it will not be rescinded. will stop for at least a year until a assessment to the national level. Issue 36: The Service failed to recovery plan is developed and Much of the assessment and consider the 1997 Conservation Plan approved. conclusions of the White Paper, as well and its favorable effect on the Alabama Response: Our policy is to develop as of the more recent correspondence, sturgeon in its proposal. recovery plans for listed species within was incorporated into the proposed rule Response: We outlined the 1997 two and a half years of their designation under Factor A, and the White Paper Conservation Plan in the proposed rule as endangered or threatened species. (Biggins 1994) was cited for reference. under Available Conservation Measures. Approved recovery plans, however, are The White Paper and all subsequent Implementation efforts under the plan not necessary to conduct recovery correspondence relating to the White were also discussed under the actions for listed species. Under the Paper and Federal activities within Background section of the proposal. section 6 agreement between the State Alabama sturgeon habitat are currently Implementation of the plan tasks, such and us, the ADCNR may continue a part of the administrative record to list as construction of hatchery facilities and conservation efforts without delay. the sturgeon under the Act. Publishing collection efforts, is positive and Issue 40: The U.S. Coast Guard has the White Paper and pertinent provides opportunities for future stated that listing the Alabama sturgeon correspondence would not add to, or population augmentation. However, the would seriously limit, if not hamper, the detract from, the protection of the plan has not yet been successful in dredging of all navigable waterways in Alabama sturgeon under the Act, or decreasing the threat of extinction to the historic Mobile River Basin. affect or change any Federal agency’s

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26449 responsibility under the Act. We have, Response: Streams proposed by EPA on hydropower operations below Robert however, included the White Paper at for addition to Alabama’s 303(d) list, F. Henry and Millers Ferry the end of this rule and expanded and due to listed aquatic species, have to Hydroelectric Projects, and may clarified the discussion of it and its meet certain criteria. These include a potentially impact operation of the findings in this final rule. documented decline or extirpation of Allatoona and Carters Hydroelectric Issue 42: In the 1994 White Paper, the the listed species since 1975, and an Projects. There is also concern that the Service and the Corps concluded that identified pollutant that contributes to Service could make unsubstantiated listing the sturgeon would have no that decline (such as sediment or claims of harm as a result of future impact on State water quality standards. nutrients). These criteria limit the changes in flow regimes in the lower However, EPA has agreed in a 303(d) proposals to a few stream Alabama River. Memorandum of Agreement Regarding segments with demonstrated problems, Response: The proposed rule noted Enhanced Coordination under the Clean affecting only a small number of the that flow regimes below Millers Ferry Water Act and Endangered Species Act streams that support listed species in Lock and Dam may have a negative (MOA) between EPA and us to consider Alabama. Currently, no pollutants have effect on Alabama sturgeon the effects of their programs and been implicated in the decline or reproduction and recruitment, based on activities on listed species. Under the extirpation of the Alabama sturgeon studied responses of other sturgeon Agreement, EPA agreed that modified from any stream segment since 1975. species to flow modifications within regulations will prohibit mixing zones The listing proposal pointed out that their habitats. However, we also noted likely to cause jeopardy to listed two localized river segments above that it is not currently known if this area species. Therefore, listing the Alabama Claiborne Lock and Dam have been is important to, or even used for, sturgeon may require changes in State reported as occasionally impaired due Alabama sturgeon reproduction. water quality standards throughout its to nutrients and organic enrichment; Therefore, we see no reason for historic range. however, this is not considered a recommending any modification of flow Response: Under Factor A, we note significant impact on the Alabama regime below Millers Ferry Lock and that pollution may have contributed to sturgeon. We do not anticipate Dam at this time. Should future research the decline of the Alabama sturgeon in requesting EPA to consider adding determine that this area is important for the past. However, at this time, we have streams or stream segments to the State sturgeon reproduction, and/or flow no information that current water 303(d) list based on the past or present regimes were having a negative effect on quality regulations are not protective of occurrence of the Alabama sturgeon. sturgeon, we and the Corps would the Alabama sturgeon. Issue 44: Any violation of a discharge examine options available under section The MOA between the Service and permit into waters supporting Alabama EPA is to ensure appropriate 7 consultation. Options might include sturgeon could potentially result in take working with the Corps and implementation of both the Clean Water of the species under the Act. Since Act and the Endangered Species Act. hydroelectric operator to provide more critical habitat was not proposed for the favorable flows for the sturgeon, and/or The MOA does not change, or add to, sturgeon, any violation of a National providing for any incidental take of the legal responsibilities of either Pollutant Discharge Elimination System sturgeon resulting from activities of the agency under either Act. Currently, (NPDES) discharge permit within the Corps and hydroelectric operator via an there are 62 listed species in Alabama sturgeon’s historic habitat in the Mobile incidental take statement as part of a that are subject to consultation on water River Basin would be subject to civil biological opinion. quality standards under the MOA. and criminal penalties under the Act. Under the Endangered Species Act, Response: Since 1994, it has been our Future proposed changes in flow Federal agencies, including EPA, are policy to notify the public of activities regimes in the lower Alabama River obligated to consider the effects of their that could potentially result in a should thoroughly consider potential actions, including permitting actions, on violation of the Act in proposed impacts to the Alabama sturgeon, as endangered and threatened species, and regulations to list species. In the well as other species. Continued to avoid jeopardizing the continued proposed rule, we identified discharge research into the life history and habitat existence of the species. Only actions permit and water withdrawal permit of Alabama sturgeon can provide a impacting the species need to be violations as having the potential to sound basis for future decisions considered. The Alabama sturgeon is result in a take of Alabama sturgeon. We regarding potential changes in flow believed to be extirpated from have received many comments regimes in the lower Alabama River. approximately 85 percent of its historic expressing concern that common, minor The Alabama sturgeon is no longer range in the Mobile River Basin. Based violations of NPDES discharge permits believed to occur in the Millers Ferry on current knowledge of the species, throughout the historic range of the Pool below Robert F. Henry Lock and only Federal actions affecting the lower sturgeon will be prosecuted as take of Dam. The Allatoona and Carters 216 km (134 mi) of the Alabama River Alabama sturgeon. This is not our hydroelectric projects in Georgia occur need to be assessed for impacts on the intent. Only violations that result in outside of, and are remote from, Alabama sturgeon. We are unaware of injury or death to the listed species Alabama sturgeon’s historic and any permitted discharge within this would be prosecutable under the Act. currently occupied habitat. These river reach, or anywhere else, that is However, since illegal discharge of projects are unlikely to affect the likely to jeopardize the continued pollutants is also identified as a Alabama sturgeon, or be affected by its existence of the Alabama sturgeon. potential take, we have removed the protection under the Act. Issue 43: EPA recently proposed section on permit violations from the Issue 46: A recent economic impact additions to Alabama’s 303(d) list, based referenced discussion in this final rule. analysis of the proposed listing, in part, on the presence of federally Permit violations that result in death or developed by economists at Troy State listed species in streams. A substantial injury to Alabama sturgeon or any other University, determined that a more than portion of the Mobile River Basin could federally listed species, however, could $15 billion adverse economic impact become subject to 303(d) designation be considered take. will result from listing the Alabama based solely on the habitat/historic Issue 45: Listing the Alabama sturgeon as endangered. There should range of the Alabama sturgeon. sturgeon would have an adverse impact be a cost/benefit analysis conducted

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 26450 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations prior to listing the Alabama sturgeon and many of their tributaries, currently because of the limited range of the under the Act. support populations of endangered and species, critical habitat would provide Response: Section 4(b)(1)(A) of the threatened species that have been listed no additional benefit for the species Act requires us to base our decision on for many years, and yet the analysis beyond that which it would receive whether to list a species solely on the documented no negative economic from listing. In addition, we were best scientific and commercial data impact from water withdrawal and concerned that an adverse public available on the species’ status and discharge capping due to the presence reaction to critical habitat designation precludes us from considering economic of these listed species. would result in loss of cooperation by or other impacts that might result from Issue 47: Listing the Alabama fishermen and other partners in current the listing. Public comments directed to sturgeon may restrict the repair and/or conservation efforts. Therefore, in the economic or other potential impacts of construction of new and existing roads proposed rule we concluded that listing are outside the scope of this and bridges on the lower Alabama designation of critical habitat for the rulemaking. River. Alabama sturgeon was not prudent. Section 4(b)(2) of the Act does require Response: Section 7 of the Act During the public comment period, us to consider economic or other requires Federal agencies, in we received numerous comments from impacts associated with the designation consultation with us, to determine if both proponents and opponents of the of critical habitat. However, we believe their actions are likely to jeopardize the species listing that favored designation that the referenced economic impact continued existence of listed species or of critical habitat. Due to this public analysis cited above was based upon a adversely modify or destroy their response, we now believe that it is set of incorrect assumptions about how critical habitat, and to conduct their unlikely than any adverse effect on the the proposed listing would affect activities in ways that are protective of sturgeon would occur as a result of economic activity throughout the listed species. This includes activities critical habitat designation, and that Mobile River Basin. The referenced conducted or permitted by Federal such designation is indeed prudent, but analysis made no attempt to identify or agencies, such as road and bridge repair not determinable at this time. Section quantify any past or present economic and construction. There are currently 38 4(b)(6)(C) of the Act provides that a impact associated with 38 aquatic listed aquatic species in the Mobile concurrent critical habitat species currently listed throughout the River Basin, including four currently determination is not required with a Basin. For example, there are listed inhabiting the Alabama River. As a final regulation implementing species associated with all of the result, consultations are a common endangered status and that the final navigation channels of the Mobile River occurrence in the Mobile River Basin, designation may be postponed for one Basin, yet no negative economic impact normally proceeding without attention additional year beyond the period on navigation, ports, or marinas due to of or impact to the general public. Based specified in section 4(b)(6)(A), if (I) a the presence of these species was on our knowledge of conditions in the prompt determination of endangered or documented in the economic analysis. lower Alabama River, the life history threatened status is essential to the The analysis assumes, however, without and habitat of the Alabama sturgeon, conservation of the species, or (ii) justification or examples, that all and the localized and temporary nature critical habitat is not then determinable waterways within the Mobile River of impacts associated with road and (see Critical Habitat section). Basin will be closed to navigation by the bridge construction, we do not foresee Issue 50: The Service did not provide designation of endangered status to the any restrictions necessary on bridge and actual notice of the proposed regulation Alabama sturgeon, and estimates road construction or repair resulting to list the Alabama sturgeon to ADCNR, economic consequences that might from addition of the Alabama sturgeon or to each of the three Alabama counties result from a halt in all navigation in the to the list of species protected under the in which the sturgeon currently exists, Tennessee-Tombigbee, Tombigbee, Act. as the Act requires. Black Warrior, Mobile, and Alabama Issue 48: Listing the Alabama Response: We provided advance River channels, and the closing of ports sturgeon under the Act will result in notification, by facsimile, to the and marinas. The Alabama sturgeon third party lawsuits to stop Federal Governor of Alabama, the ADCNR, and currently inhabits only the lower projects (such as maintenance dredging) the County Commissions of Wilcox, Alabama River. The Corps and the or stop the issuance of discharge Clarke, Monroe, and Baldwin Counties, Service have determined that navigation permits. as well as other parties, of the proposal maintenance has no adverse effect on Response: Citizen suits are allowed the day before its publication in the the Alabama sturgeon. The proposed under the Act. However, it has been our Federal Register. Upon publication of rule specifically stated that maintenance experience that fully complying with the proposal, we mailed them copies of dredging is unlikely to result in a take the requirements of the Act, as well as the complete text as published in the of Alabama sturgeon. Therefore, other Federal laws, is the best way to Federal Register and solicited their navigation, ports, and marinas will be avoid citizen suits. comments. We have fully complied with economically unaffected by this listing. Issue 49: The Act clearly states that to the notification requirements of the Act. The economic analysis also assumed the maximum extent prudent and Issue 51: The Service’s proposed that water withdrawals and discharges determinable, critical habitat shall be listing is based on the historic range of within the Alabama, Coosa, Tallapoosa, designated concurrently with listing a the Alabama sturgeon; therefore, the Cahaba, Tombigbee, Black Warrior, and species. By not proposing critical Service may be required to give actual Mobile Rivers and their tributaries habitat concurrent with the listing, the notice to almost every county in would be capped at present levels proposal is in violation of the Act. Alabama and several counties in should the sturgeon be listed. As noted Response: Implementing regulations Mississippi. above, the Alabama sturgeon currently allow us to determine that critical Response: We are required to give inhabits only the lower Alabama River. habitat designation is not prudent if notice and invite the comments of each Water withdrawal has not been such designation would result in an county in which the species proposed identified as a threat to the Alabama increase in threat to the species, or if for listing is believed to occur (see 50 sturgeon. In addition, all of the rivers designation does not benefit the species. CFR 424.16(c)(1)(ii) and 16 U.S.C. assumed to be impacted by the analysis, In the proposal, we determined that 1533(b)(5)(A)(ii)). The sturgeon is

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Section 4(a)(1) anticipates some level of take of the regulation and solicited their comments. of the Act requires us to determine species, which is exempted from section Issue 52: The Service must comply whether any species is an endangered 9 prohibitions. In addition, we and the with the National Environmental Policy species or a threatened species because Corps have already determined that Act (NEPA) when designating critical of any of five factors. Listing the most Corps permitting activities in the habitat. Alabama sturgeon will not detract from lower Alabama River currently are not Response: Environmental assessments the efforts of the 1997 Conservation known to adversely affect the Alabama and environmental impact statements, Plan. The Act requires us to cooperate sturgeon. Therefore, it is unlikely that as defined under NEPA, are not required with State agencies in conserving listing the sturgeon under the Act will for regulations enacted under section endangered species, and we will create restrictions on numerous permit 4(a) of the Act (see 48 FR 49244). Please continue to cooperate with the ADCNR actions. refer to the NEPA section of this final in conserving the Alabama sturgeon. Fain et al. (2000) Report rule. Listing will also augment protection and Issue 53: In submitting the proposed conservation of the Alabama sturgeon. During the open comment period for rule to scientific specialists for review, The Act requires Federal agencies to use the Fain et al. (2000) report on river the Service must comply with the their authorities to conserve listed sturgeon genetics, we received six Federal Advisory Committee Act species. Without protection under the comments and one peer-reviewed (FACA). Act, there is no legal requirement to manuscript. One commenter felt that the Response: FACA applies to specifically consider the effects of new use of mtDNA for forensics purposes committees established by Federal Federal projects funded, carried out, or should be thoroughly peer-reviewed for agencies to provide recommendations permitted within the Alabama all sturgeon species. Two commenters and advice to an agency. We provided sturgeon’s habitat. Since many of the believed that the report established that copies of the proposed rule to five activities associated with the Alabama the Alabama sturgeon should not be scientific specialists for independent River channel habitat used by the considered a distinct species. Three review during the open comment sturgeon are funded, carried out, or commenters noted that the report period. We received individual permitted by Federal agencies, the establishes only that the cytochrome-b comments from four of these reviewers Federal agency conservation gene is not useful for examining genetic during the open comment period. The responsibilities invoked by the Act will variation within the genus fifth scientist provided comments benefit the species. This does not mean Scaphirhynchus and two other sturgeon through the Alabama-Tombigbee Rivers that activities of Federal agencies or species groups. The peer-reviewed Coalition during the open comment permittees will be impeded, rather that manuscript we received during the period. Our request and receipt of projects will be planned and comment period concluded that current comments from individual peer implemented in ways that reduce harm mtDNA data provide a potentially reviewers during the open comment or injury to the species, and avoid diagnostic genetic character supporting period is fully consistent with FACA jeopardizing its continued existence. taxonomic recognition of the Alabama requirements. Issue 57: It is not clear that listing the sturgeon as a distinct species. Below are Issue 54: The Service must comply Alabama sturgeon will result in its issues raised in these comments relating with Executive Order 12866 and prepare recovery. to this action and our responses to each. a Regulatory Plan. Response: The Act allows us to only Issue 59: Alabama and shovelnose Response: Because section 4(b)(1)(A) consider information related to a sturgeons are genetically identical. of the Act specifically prohibits species’ status when determining as to Response: A study by Schill and consideration of information other than whether protection is warranted under Walker (1994), discussed in the scientific and commercial information, the Act. Therefore, we may not consider background section of the proposed we are prohibited from applying the the feasibility of recovery in rule, found no sequence divergence in a procedures of Executive Order 12866 to determining whether to list a species. cytochrome b mtDNA sequence between proposed and final listings. Issue 58: Listing the Alabama a single specimen of the Alabama Issue 55: The Service must prepare a sturgeon under the Act may create sturgeon and shovelnose sturgeon. All regulatory flexibility analysis. restrictions on numerous permit actions. subsequent genetic studies with larger Response: In accordance with the Response: Federal agencies are samples of Alabama and shovelnose requirements of section 4(b)(1)(A) of the required under the Act to consider the sturgeons have revealed genetic Act mentioned under Issue 54 above, effects of their actions, including issuing differences between samples of the two the Regulatory Flexibility Act does not permits, on endangered and threatened species. Cytochrome b mtDNA apply to listing actions. species. In cases where the action affects sequences reported by Fain et al. (2000) Issue 56: The Alabama strugeon is the species, the agency is required to indicate that the Alabama sturgeon protected by the State and there is a consult with us. If during consultation, sample had only one sequence type, A, State-managed 1997 Conservation Plan the action is determined to likely whereas the shovelnose sturgeon sample in place. Listing the Alabama sturgeon jeopardize the species’ continued included two sequence types, B and C, will provide no added benefits to the existence, it may be significantly that were not found in the Alabama current conservation efforts. There is no modified, or even prohibited. However, sturgeon sample. Although sequence A need for Federal protection of this this is rarely the case. In over 1,000 was found in both, it differed in species. consultations in Alabama over the past frequency in Alabama (frequency = 1.0) Response: We acknowledge that the decade, only two consultations resulted and shovelnose (frequency = 0.86) State of Alabama protects the Alabama in a jeopardy determination, and in both sturgeons. Fain et al. (2000) concluded sturgeon from scientific and recreational of these cases, the programs were that these differences were not

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This potentially cytochrome b sequence is reasonable for Therefore, it provides the basis for diagnostic genetic marker differed from their purpose of evaluating a number of either withdrawing the listing action for the most similar shovelnose and pallid different genera distributed over a wide the Alabama sturgeon, or listing as sturgeon sequences by a unique base- geographic range across different threatened instead of endangered. pair substitution. These results were continents. Failure to find a diagnostic Response: Conservation actions for confirmed by those of Mayden et al. marker for Alabama sturgeon in a gene the Alabama sturgeon have been (1999), which are discussed in our region chosen to have a somewhat conducted over the past years by the response to Issue 24. Nuclear DNA conservative rate of divergence does not State of Alabama, other concerned divergence detected between Alabama mean that it is not a species or that parties and us under a Conservation sturgeons and other Scaphirhynchus genetic differences were not found; Plan. These actions have been reported by Genetic Analyses, Inc., genetic differences are discussed in our successful to the extent of increasing (1994, 1995) is discussed in our response to Issue 59. Fain et al. (2000) our knowledge of methods to capture responses to Issues 20 and 22 and in the observe that when minimal genetic the fish and maintain it in captivity. Background section of this rule. variation is found with such a However, the species remains Issue 60: Genetics is the best science technique, it can mean that the species vulnerable to extinction because of its for making taxonomic determinations have recently diverged and there has not small population size and restricted and trumps morphological analyses. been time for fixation of genetic range. Early this year we were requested by the State of Alabama to develop and Response: The most scientifically differences. That species formation can enter into a formal Conservation credible approach to making taxonomic take place more rapidly than Agreement and Strategy with the State determinations is to consider all differentiation of genetic markers can become established has long been and others to continue and to increase available data involving as many conservation efforts for the Alabama different classes of characters as appreciated by systematists and taxonomists applying genetic data sturgeon. We collectively developed a possible. Classes of characters that can conservation strategy that is be considered include morphological, (Avise 1994). Cytochrome b is not the best choice of a genetic region for technologically and economically karyological (chromosomal), resolving the closely related species in feasible and that has a good chance of biochemical (including DNA analysis the genus Scaphirhynchus. In such addressing the threats to the continued and other molecular genetic cases it is appropriate to examine a gene existence of the Alabama sturgeon. We techniques), physiological, behavioral, region known to have a faster rate of also released the Conservation ecological, and biogeographic characters evolution that might be reflected in a Agreement Strategy for public review (Wiley 1981). The consideration given difference between species. The study of and comment. We then reviewed the to any given class of characters in Campton et al. (in press) employed the comments received, and considered the making a taxonomic decision depends more rapidly evolving control region of certainty and effectiveness of the on several factors. These include the mtDNA with the results described under Conservation Agreement Strategy as it availability and quality of the data, the Issue 59. Campton et al. (in press) also relates to the current and future status appropriateness of the method and discuss other cases where speciation has of the sturgeon. design of the study to the taxonomic occurred in fishes with very little We concluded that the Conservation issue in question, and the demonstrated genetic divergence in cytochrome b, and Agreement Strategy is the best approach utility of the method to similar issues or Fain et al. (2000) identifies lack of for conservation of the Alabama taxonomic groups. Genetic data have divergence between pairs of other sturgeon; however, the certainty and their greatest utility in making species- sturgeon species. Interpreted in light of effectiveness of these efforts in level taxonomic determinations when the minimal gene regions studied, the removing existing threats remain the putative species are sympatric small sample sizes of Alabama sturgeon, unproven and dependent upon many (occur together) and the degree of and evidence from other species that factors beyond human control. For natural genetic interaction can be species formation can occur with example, the Strategy can only be evaluated. When the putative species minimal detectable genetic effective if sufficient mature fish of both are allopatric, as with Alabama and differentiation in DNA regions sexes can be captured. In the past 4 shovelnose sturgeons, genetic data commonly studied, the genetic data are years we have only captured five fish, provide a measure of divergence that consistent with and do not demand the of which only one was in reproductive must be evaluated along with all other rejection of taxonomic conclusions condition. While the Strategy calls for a available measures of divergence in based on morphological and dramatic increase in capture efforts over making a determination whether biogeographical data that the Alabama the next decade, the capture of species-level differences exist. When sturgeon qualifies for recognition as a sufficient fish in appropriate condition sample sizes are small, either in terms valid species. cannot be assured. of number of individuals or number of Collection history and anecdotal genetic regions or loci tested, the Conservation Agreement Strategy accounts from commercial fishermen taxonomic value of genetic data is During the open comment period for indicate that the numbers of Alabama diminished. the Conservation Agreement Strategy, sturgeon have been declining since the Issue 61: Based on the study by Fain we received 259 letters recommending construction of dams in the Alabama et al. (2000), Alabama and shovelnose implementation of the Strategy and River during the 1960’s and early sturgeons are the same species withdrawal of the listing action. We also 1970’s. It is currently unknown if this (conspecific). received five letters opposing the use of decline is an effect of low population

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26453 numbers and the subsequent inability of a determination to list the Alabama We requested five academicians who the fish to reproduce successfully, or a sturgeon as an endangered species. possess expertise on Alabama and result of inadequate habitat quantity, or Issue 65: The Conservation Agreement shovelnose sturgeon taxonomy and a combination of factors. Strategy failed to allow public systematics to review the proposed rule Although the successful involvement in the development of the by the close of the comment period. implementation of the Conservation conservation goals and strategies, and Four of these individuals responded Agreement Strategy will maintain did not appear to include consultation directly to our request. All expressed current habitat quantity and quality and with scientific authorities with expertise their belief that the data support provide information on the habitat in population ecology or dynamics. The protection of the Alabama sturgeon needs of the Alabama sturgeon, we result is an agreement that fails to under the Act. Three peer reviewers cannot currently predict what effect that consider the geographic scale needed for strongly supported the taxonomic status information may have on the future long term survival of the species. of the Alabama sturgeon, and two of status of the species. Therefore, based Response: Much of the Conservation these provided supporting information. on our analysis, the Conservation Agreement Strategy is based upon the One reviewer expressed some personal Agreement Strategy does not remove 1997 Conservation Plan. This Plan had doubt regarding taxonomic status of the existing threats to the Alabama sturgeon wide distribution and input, including Alabama sturgeon, but felt the fish to a degree to where it no longer that of private and public professional represented a subspecies, or at a warrants listing under the Act. The fisheries biologists and ecologists. Little minimum, a unique population that Conservation Agreement Strategy, had changed since development of the needed protection under the Act. This however, does provide the best available 1997 Conservation Plan. The parties individual also noted that Mayden and actions for the conservation of the used that Plan as a starting point and Kuhajda (1996) convincingly argued for Alabama sturgeon, and may lead to its developed the Conservation Agreement species status. eventual recovery. The Strategy has Strategy. The Conservation Agreement The fifth reviewer did not directly outlined what the species needs for Strategy was executed by the parties respond to our request for peer review; recovery, and it will make an excellent prior to public comment because the however, he provided comments recovery plan. signatories were concerned, in part, opposing the proposal at the public about losing prime spawning time for Issue 63: The Conservation Agreement hearing and through an organization the Alabama sturgeon if execution was Strategy fails to address the factors opposed to the listing. We have delayed until after public comment. The sufficiently to have an effect on the addressed these comments in the parties to the Conservation Agreement listing determination of the Alabama Summary of Comments and Strategy agreed that an open comment Recommendations section, above. sturgeon. period after execution was appropriate Summary of Factors Affecting the Response: We concur that the Strategy to provide the public and scientific Species does not remove threats to the Alabama community the opportunity for input in sturgeon to a degree that precludes its the Conservation Agreement Strategy, After a thorough review and need for protection under the Act. its objectives and its associated tasks, consideration of all information However, the Conservation Agreement and that Strategy 2000 would be available, we determine that the Strategy can influence many future modified as deemed appropriate by the Alabama sturgeon should be classified actions covered under sections 4, 6, and signatories. as an endangered species. We followed 7 of the Act. For example, the Strategy Issue 66: The Service did not follow the procedures found at section 4(a)(1) provides the basis for an Alabama the rules of FACA when developing the of the Act (16 U.S.C. 1531 et seq.) and sturgeon recovery plan, identifying Conservation Agreement Strategy. regulations (50 CFR part 424) issued to current and future recovery actions Response: The Conservation implement the listing provisions of the essential to the species’ conservation. Agreement Strategy is a joint effort by Act. We may determine a species to be The Conservation Agreement Strategy the parties to eliminate or significantly endangered or threatened due to one or could become the State’s program to reduce current threats to the Alabama more of the five factors described in conserve the sturgeon under section 6 of sturgeon. Entering into such agreements section 4(a)(1). These factors and their the Act. In addition, the Corps’ with states, other federal government application to the Alabama sturgeon involvement, commitments, and actions entities and other interested private (Scaphirhynchus suttkusi Williams and under the Conservation Agreement parties to accomplish mutual goals is a Clemmer 1991) are as follows: Strategy would, in large part, fulfill their routine practice of the Service and other A. The present or threatened conservation obligations under section federal agencies. These are not the type destruction, modification, or 7(a)(1) of the Act. Positive results of the of activities that are subject to FACA. curtailment of its habitat or range. The Conservation Agreement Strategy could best available data indicate that the facilitate future section 7(a)(2) Peer Review Alabama sturgeon has disappeared from consultations. In accordance with our July 1, 1994 85 percent of its historic range. Its Issue 64: The Department of the (59 FR 34270), Interagency Cooperative decline has been associated with Interior had already made a decision Policy on Peer Review, we requested the construction of dams, flow regulation, regarding the listing of the Alabama expert opinions of independent navigation channel development, other sturgeon when the comment period specialists regarding pertinent scientific forms of channel modification, and opened in February. or commercial data and assumptions pollution. Dams in the Alabama River Response: As stated in the February relating to the supportive biological and have reduced the amount of riverine 16, 2000, Federal Register notice (65 FR ecological information in the proposed habitat, impeded migration of Alabama 7817), we reopened the comment period rule. The purpose of such review is to sturgeon for feeding and spawning to obtain public comment on the ensure that the listing decision is based needs, and changed the river’s flow Conservation Agreement Strategy’s on scientifically sound data, patterns. The species is now restricted relevance and significance to the assumptions, and analyses, including to a 216-km (134-mi) reach of the upcoming listing decision. We reviewed input of appropriate experts and Alabama River below Millers Ferry Lock all comments received prior to making specialists. and Dam, downstream to the mouth of

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 26454 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations the Tombigbee River. Whether the are believed to be used as spawning (11 sites) (Hartfield and Garner 1998). quantity of fluvial (stream) habitat areas by other sturgeon species (Mayden Depths at these areas (5 to 15 m (16 to currently available to the species in this and Kuhajda 1996). 49 ft)) are well below the minimum river reach is adequate to meet all of the Maintenance dredging continues to be navigation maintenance depth of 3 m (9 ecological needs of a self-sustaining necessary in the Alabama River to ft). population is unknown. remove seasonally accumulated material Sand and gravel mining has had Changes in natural river flow regimes from deposition areas within the historic impacts on riverine habitats in by operation of hydroelectric dams are navigation channel. Dredged materials the lower Tombigbee and Alabama river known to be detrimental to other are usually placed on natural deposition channels. Instream dredging for sand sturgeon species (e.g., Khoroshko 1972, features adjacent to the navigation and gravel can result in localized Zakharyan 1972, Veshchev 1982, channel, such as point bars or lateral biological and geomorphic changes Veshchev and Novikova 1983, Auer bars. Due to the natural dynamics of similar to those caused by 1996). Flow quantity is believed to be river channels and annual sediment channelization and navigation channel adequate to maintain sturgeon in the movement, maintenance areas have development. For example, mining of lower Alabama River below Claiborne remained fairly constant over time, with rivers has been shown to reduce fish Lock and Dam (Biggins 1994). The the same areas repeatedly dredged or and invertebrate biomass and diversity Alabama Power Company currently used for disposal. Recent investigations and can induce geomorphic changes in releases 57 cubic meters per second by the Corps, ADCNR, and us indicate the river channel both above and below (cms) (2,000 cubic feet per second (cfs)) that the distribution of stable benthic mined areas (Simons et al. 1982, Brown seasonal minimum flow from Jordan (bottom) habitats in the riverine and Lyttle 1992, Kanehl and Lyons Dam into the lower Coosa River, and 34 portions of the Alabama River has been, 1992, Hartfield 1993, Patrick and Dueitt cms (1,200 cfs) minimum flow from and continues to be, strongly influenced 1996). Sand and gravel dredging of the Thurlow Dam into the lower Tallapoosa by historical dredge and disposal Tombigbee and Alabama river channels River. These two releases provide a practices. Changes in disposal practices within the historic and current range of combined 91 cms (3,200 cfs) minimum could disrupt the existing equilibrium. the Alabama sturgeon has occurred flow to the upper Alabama River for For example, river channels are strongly periodically since the 1930s (Simons et passage through the three Alabama influenced by the amount of sediment al. 1982). We are not aware of any River locks and dams. Alabama River moving through them. Increases in currently active sand and gravel flows are further augmented by sediment budget can cause aggradation dredging operations in the Alabama generating flows from Jordan, Thurlow, (filling) of the channel, while decreases River. However, mining of gravel from and Bouldin dams, as well as other in sediment can cause degradation stable river reaches used by the Alabama River tributary flows. The (erosion). With the upstream dams Alabama sturgeon would be detrimental average daily flows measured over the forming barriers to the movement of to the species. last decade downstream of Claiborne sediment through the Alabama River, Water pollution may adversely impact Lock and Dam have ranged from over additional reduction of sediment sturgeon (Ruelle and Keenlyne 1993) 100 cms to nearly 7,000 cms (3,500 to availability (e.g., through upland and was likely a factor in the decline of 247,000 cfs). While no evidence disposal) could increase river bed and the Alabama sturgeon, especially prior suggests that the Alabama sturgeon is bank erosion, including areas that are to implementation of State and Federal limited by water quantity below Robert now important, stable habitats. In water quality regulations. Currently, the F. Henry and Millers Ferry Locks and consideration of this situation, major sources of water pollution in Dams, these dams house hydropower significant changes in current disposal Alabama are agriculture, municipal facilities and neither is required to methods in the Alabama River could point sources, resource extraction, and maintain a minimum flow. Current low adversely affect the Alabama sturgeon. contaminated sediments, in order of flow releases from these two facilities Recent investigations by ADCNR decreasing importance based on can be as little as 3 hours of generation biologists and us have documented the numbers of miles impaired (Alabama timed according to peaking needs, plus presence of high-quality, stable river Department of Environmental lockage releases. The effect of such daily bottom habitats interspersed within and Management 1994). Water quality in the flow fluctuations below Millers Ferry between dredge and disposal sites in the lower Alabama River is generally good; Lock and Dam on Alabama sturgeon lower Alabama River (Hartfield and however, two localized river segments reproductive, larval, or juvenile habitat Garner 1998). These habitats included above Claiborne Lock and Dam have requirements may be negative; however, stable sand and gravel river bottom been reported in the past as occasionally the importance of the area between supporting freshwater mussel beds, and impaired due to excess nutrients and Robert F. Henry and Claiborne lock and bedrock walls and bottom. Mussel beds organic enrichment (Alabama dams for sturgeon reproduction is are excellent indicators of riverine Department of Environmental currently unknown. habitat stability because freshwater Management 1994). Sources of The most visible continuing mussels may live in excess of 30 years, impairment were broadly identified as navigation impact within presently and mussel beds require many decades the combined effects of industrial and occupied Alabama sturgeon habitat is to develop (Neves 1993). Clean bedrock municipal discharges, and runoff from maintenance dredging of navigation has been identified as potential agriculture and silviculture. These river channels. We have no evidence that Alabama sturgeon spawning habitat segments are also affected by such dredging currently constitutes a (Mayden and Kuhajda 1996). The hydropower discharges from Millers limiting factor to the sturgeon (Biggins significance of such areas of stability are Ferry Lock and Dam. In 1994, an impact 1994). The Corps has constructed 67 suggested by the location of recent and analysis on Federal activities in the channel training works (jetties) at 16 historic Alabama sturgeon capture sites Alabama River (Biggins 1994) locations in the lower Alabama River, below Millers Ferry and Claiborne locks concluded that no information suggests eliminating about 60 percent of and dams. Dive surveys at 19 capture that current fish and wildlife standards dredging requirements at those sites dating back to 1950 found 17 in the for water quality are not protective of locations. In the Mississippi River vicinity of dense mussel beds (15 sites) the Alabama sturgeon and that State drainage, such channel training works and/or clean bedrock riverine habitat water quality standards would not need

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26455 to be increased should the sturgeon be E. Other natural or manmade factors recreational fishermen resulted in the protected under the Act. No information affecting its continued existence. The capture of only six Alabama sturgeon. developed since 1994 suggests primary threat to the immediate survival Compared to the estimated 20,000 otherwise. of the Alabama sturgeon is its small Alabama sturgeon reported in the 1898 B. Overutilization for commercial, population size and its apparent harvest, the amount of effort currently recreational, scientific, or educational inability to offset mortality rates with required to capture Alabama sturgeon purposes. As discussed in the current reproduction and/or recruitment indicates that the species’ population ‘‘Background’’ section of this final rule, rates. As noted in the Background numbers are extremely low. This the Alabama sturgeon was commercially section, incidents of capture of Alabama determination strongly indicates that harvested around the turn of the sturgeon have been steadily diminishing the Alabama sturgeon is highly century. Alabama State law (sect. 220– for the past two decades, indicating susceptible to the negative effects of a 2–.26–4) now protects the Alabama declining population numbers over this small population size and this factor, sturgeon and other sturgeons requiring time. Studies also demonstrate that coupled with the reproduction that * * * any person who shall catch small populations are inherently highly characteristics of its natural history, a sturgeon shall immediately return it to vulnerable to extinction (Soule 1987). In renders the species very vulnerable to the waters from whence it came with such cases, the species becomes very extinction. vulnerable to natural or human-induced the least possible harm. As a result, State Conservation Efforts sturgeon are not currently pursued by events (e.g., droughts, floods, commercial or recreational fishermen. competition, variations in prey Section 4(b)(1)(A) requires us, in Nonetheless, Alabama sturgeon are abundance, toxic spills), which may making a listing determination, to take occasionally caught by fishermen in further depress recruitment or increase into account efforts being made by the State to protect the Alabama sturgeon. nets or trot lines set for other species. mortality (Belovsky 1987, Shaffer 1987). In 1996, the ADCNR developed a For example, one of the Alabama Sturgeon species may be especially conservation plan for the Alabama sturgeons caught in 1995 was hooked by vulnerable to small population size for sturgeon that attempted to address the a fisherman on a trot line, and the several reasons. Age at first spawning most immediate threat to the species, its Alabama sturgeon caught in 1996 was (ranging from 5 to 7 years for shovelnose small population size. A variety of trapped in a hoop net; both of these fish sturgeon) is much delayed in public and private groups, including the were released. Doubtless, there have comparison to many other fishes, and Service, Army Corps of Engineers, been additional, undocumented female sturgeons may not spawn for Geological Survey of Alabama, Auburn incidental captures by commercial and intervals of several years (Wallus et al. University, the Alabama-Tombigbee sport fishermen. However, the surveys 1990). A recent attempt to propagate Alabama sturgeon at the Marion State Rivers Coalition, and the Mobile River and collection efforts of the past decade Fish Hatchery indicates that males may Basin Coalition have participated in, have shown such captures to be rare. not spawn annually as well. Thus, the and/or endorsed, this plan. The C. Disease or predation. The Alabama number of adult males and females immediate focus of the plan is to sturgeon has no known threats from capable of reproducing in a given year prevent extinction through a captive disease or natural predators. To the is much smaller than the actual breeding program and release of extent that disease or predation occurs, numbers of adult sturgeon present. Also, propagated fish. Other objectives of the such threats become a more important recruitment success in fish is subject to plan include genetic conservation, consideration as the total population considerable natural variability owing to habitat restoration, and determining life decreases in number. fluctuations of environmental history information essential to effective D. The inadequacy of existing conditions, and several years can pass management of the species. A regulatory mechanisms. As we between periods of good recruitment. freshwater sturgeon conservation plan discussed under factor B, Alabama State Sturgeon may compensate for some of working group composed of scientists law (sect. 220–2–.26–4) protects the these aspects of their natural history by and resource managers from a variety of Alabama sturgeon and other sturgeons producing large quantities of eggs per Federal and State agencies, industry, requiring that * * * any person who female. However, successful spawning and local universities was formed in shall catch a sturgeon shall immediately and production of large numbers of September 1996 to establish collection return it to the waters from whence it offspring by a single or a few fish may and handling protocols, and to came with the least possible harm. As result in reduced genetic diversity for recommend and participate in research a result, sturgeon are not currently the overall population. efforts. Implementation of the pursued by commercial or recreational Currently, no population estimates conservation plan began in March 1997, fishermen. State regulations, however, exist for the Alabama sturgeon. Recent with broodstock collection efforts. To do not generally protect the Alabama collection efforts demonstrate its date, five fish have been captured; sturgeon from other threats. Several increasing rarity. For example, however, three of these have died. Two regulatory mechanisms currently benefit beginning in the spring of 1997 through male sturgeon are currently held at the the Alabama sturgeon and its habitat 1999, up to four crews of professional Marion State Fish Hatchery. The (e.g., Clean Water Act and associated fisheries biologists have expended hatchery has been upgraded to State laws, Fish and Wildlife approximately 4,000 man-hours of accommodate sturgeon propagation. An Coordination Act, Federal Power Act, fishing effort in the lower Alabama unsuccessful attempt to spawn the National Environmental Policy Act, River to capture Alabama sturgeon for captive sturgeon was conducted during Rivers and Harbors Act). However, use as broodstock. This effort resulted in March 1999 (see Background section). within the scope of other environmental the capture of only five Alabama Coordinated studies are currently in laws or Alabama State law, there is sturgeon, three of which have died in progress by the ADCNR, Corps, and us currently no requirement to specifically captivity. An additional incidental catch to identify and quantify stable riverine consider the effects of actions on the and release was reported by a habitat in the Alabama River, and to Alabama sturgeon and ensure that a commercial fisherman. Thus, develop strategies for its management. project is not likely to jeopardize its approximately 18 months of fishing by Life history and habitat studies in continued existence. professional, commercial, and progress include habitat

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 26456 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations characterization at historic sturgeon (5) extending knowledge of the species’ by a species, at the time it is listed in collection sites, prey density studies, natural history, life cycle, and ecological accordance with the Act, on which are and larval sturgeon surveys. To date, the needs; and (6) development and found those physical or biological 1997 Conservation Plan has not been implementation of appropriate adaptive features (I) essential to the conservation successful in decreasing the threat of management strategies to conserve the of the species and (II) that may require extinction to where protection under the species. special management consideration or Act is no longer warranted. Implementation of the Conservation protection; and (ii) specific areas On February 9, 2000, the ADCNR, the Agreement Strategy is the most viable outside the geographical area occupied Corps, the Alabama-Tombigbee Rivers approach to conservation of the by a species at the time it is listed, upon Coalition, and the Service signed a Alabama sturgeon, based on current a determination that such areas are formal 10-year Conservation Agreement technology and information. However, essential for the conservation of the and Strategy for the Alabama Sturgeon. the certainty on the effectiveness of species. Conservation means the use of The goal of the 10-year Conservation these efforts in removing existing threats all methods and procedures needed to Agreement Strategy is to eliminate or remain unproven and dependent upon bring the species to the point at which significantly reduce current threats to many factors beyond human control. listing under the Act is no longer the Alabama sturgeon and its habitat. Therefore, the Alabama sturgeon still necessary. Attaining the goal of the Conservation warrants protection under the Act (see Section 4(a)(3) of the Act, as Agreement Strategy will require responses to Issues 62 to 66). amended, and implementing regulations accomplishment of the following The Mobile River Basin Aquatic (50 CFR 424.12) require that, to the objectives: (1) Restore and maintain Ecosystem Recovery Coalition, a maximum extent prudent and sufficient numbers of Alabama sturgeon partnership comprising diverse determinable, the Secretary designate in the lower Alabama River to ensure its business, environmental, private critical habitat at the time the species is long-term survival by increasing the landowner, and agency interests, has determined to be endangered or numbers of sturgeon through hatchery been meeting regularly to participate in threatened. Section 4(b)(2) of the Act propagation and augmentation; and (2) recovery planning for 15 listed aquatic requires us to consider economic and identify and protect existing occupied species in the Basin (U.S. Fish and other relevant impacts of designating a Alabama sturgeon habitat quantity and Wildlife Service 1998). The Coalition particular area as critical habitat on the quality, develop information on the promotes increased stewardship basis of the best scientific data available. sturgeon’s life history and habitat needs, awareness by private landowners The Secretary may exclude any area and use this information to implement throughout the Basin, and encourages from critical habitat if he determines appropriate conservation measures and the control of non-point source that the benefits of such exclusion adaptive management strategies for the pollution through the implementation of outweigh the benefits of its inclusion, Alabama sturgeon and its habitat. The Best Management Practices. All aquatic unless to do so would result in the objectives will be accomplished through habitats, including Alabama sturgeon extinction of the species. Our implementation of the Conservation habitat, will benefit from such efforts. regulations (50 CFR 424.12(a)(2)) state Agreement Strategy for the Alabama In determining to make this rule final, that critical habitat is not determinable Sturgeon. we have carefully assessed the best if information sufficient to perform the The Conservation Agreement Strategy scientific and commercial information required analysis of the impacts of the for the Alabama Sturgeon describes available regarding the past, present, designation is lacking or if the biological specific actions and strategies required and future threats faced by the Alabama needs of the species are not sufficiently to expedite implementation of sturgeon, while taking into account well known to permit identification of conservation measures for the Alabama ongoing conservation efforts and an area as critical habitat. sturgeon to ensure the long-term commitments by the State and others. In the proposed rule, we found that viability of the species, and to establish Based on our evaluation, the most critical habitat designation for the benchmarks to measure the success of appropriate action is to list the Alabama Alabama sturgeon was not prudent the program. The general conservation sturgeon as endangered. The Act defines because we believed it would provide goals are to increase sturgeon numbers an endangered species as one that is in no additional benefit beyond that of the to a viable, self-sustaining level; danger of extinction throughout all or a listing. We also indicated that the maintain habitat currently occupied by significant portion of its range. The designation of critical habitat was not the sturgeon; conduct research species is currently limited in prudent because of our concern that necessary to understand sturgeon life distribution to a small portion of its such designation could harm the species history and ecology and use this historic range and is blocked by dams as a result of adverse public reaction information to manage the species; from recolonizing other portions of that and loss of cooperation by fishermen identify occupied habitat within the range. Whether the quantity of habitat and other partners in ongoing lower Alabama River that might support currently available to the Alabama conservation efforts. However, during sturgeon with appropriate management; sturgeon is adequate to meet the needs the open comment period, we received and insure sturgeon accessibility to of a self-sustaining population is numerous comments favoring critical essential habitat that is identified unknown. In addition, the Alabama habitat designation for the Alabama through research. sturgeon is vulnerable to extinction due sturgeon. Commercial fishermen also The success of implementation during to its small population size, aggravated continued to cooperate in conservation the life of the Agreement and Strategy by certain characteristics of its actions during the open comment will be measured by annual reviews to reproduction. Ongoing conservation period. Due to this response, we no address the following: (1) Successful efforts to increase sturgeon numbers longer believe that any significant collection of broodstock; (2) successful have to date met with limited success. adverse public reaction will result from hatchery propagation; (3) initial the designation of critical habitat for the augmentation of the remaining wild Critical Habitat Alabama sturgeon. stock of the species with hatchery- Critical habitat is defined in section 3 In the absence of a finding that critical spawned Alabama sturgeon; (4) of the Act as: (I) the specific areas habitat would increase threats to a protection of existing occupied habitat; within the geographical area occupied species, if any benefits would result

VerDate 272000 16:18 May 04, 2000 Jkt 190000 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm02 PsN: 05MYR2 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26457 from critical habitat designation, then a features. Through ongoing studies we the species have been protected and the prudent finding is warranted. In the are attempting to better ascertain the project objectives have been met. case of the Alabama sturgeon, biological needs of the Alabama In addition, section 7(a)(1) of the Act designation of critical habitat may sturgeon and the habitat essential to requires all Federal agencies to review provide some benefits. The primary those needs. This information is the programs they administer and use regulatory effect of critical habitat is the considered essential for determining these programs in furtherance of the section 7 requirement that Federal critical habitat. Prior to a final purposes of the Act. All Federal agencies refrain from taking any action designation, maps of proposed critical agencies, in consultation with us, are to that destroys or adversely modifies habitat, identification of essential carry out programs for the conservation critical habitat. While a critical habitat features, and an economic analysis of of endangered and threatened species designation for habitat currently any incremental regulatory effects listed pursuant to section 4 of the Act. occupied by this species would not be (additive to the species listing) will be The Act and its implementing likely to change the section 7 released for public review and regulations found at 50 CFR 17.21 set consultation outcome because an action comment. Protection of Alabama forth a series of general prohibitions and that destroys or adversely modifies such sturgeon habitat will be provided during exceptions that apply to all endangered critical habitat would also be likely to the interim through the recovery wildlife. These prohibitions, in part, result in jeopardy to the species, in process, the section 7 consultation make it illegal for any person subject to some instances, section 7 consultation process, and section 9 prohibitions on the jurisdiction of the United States to might be triggered only if critical habitat take. take (includes harass, harm, pursue, is designated. Examples could include hunt, shoot, wound, kill, trap, or collect; Available Conservation Measures unoccupied habitat or presently or to attempt any of these), import or occupied habitat that may become Conservation measures provided to export, ship in interstate commerce in unoccupied in the future. In addition, species listed as endangered or the course of commercial activity, or sell some educational or informational threatened under the Act include or offer for sale in interstate or foreign benefits may result from designating recognition, recovery actions, commerce any endangered wildlife. To critical habitat. Therefore, we now find requirements for Federal protection, and possess, sell, deliver, carry, transport, or that critical habitat designation is prohibitions against certain practices. ship any such wildlife that has been prudent, but not determinable, for the Recognition through listing encourages taken illegally is also is illegal. Certain Alabama sturgeon. and results in conservation actions by exceptions apply to our agents and Section 4(b)(6)(C) of the Act provides Federal, State, and private agencies, agents of State conservation agencies. Our policy, as published in the that a concurrent critical habitat groups, and individuals. The Act Federal Register on July 1, 1994 (59 FR determination is not required with a provides for possible land acquisition 34272), is to identify, to the maximum final regulation implementing and cooperation with the States and extent practicable, those activities that endangered status and that the final requires that recovery actions be carried would or would not constitute a designation may be postponed for one out for all listed species. The protection violation of section 9 of the Act for this additional year beyond the period required of Federal agencies and the species. The intent of this policy is to specified in section 4(b)(6)(A), if (I) a prohibitions against taking and harm are increase public awareness as to the prompt determination of endangered or discussed, in part, below. effects of this final listing on future and threatened status is essential to the Section 7(a) of the Act, as amended, ongoing activities within this species’ conservation of the species, or (ii) requires Federal agencies to evaluate their actions with respect to any species range. critical habitat is not then determinable. We believe, based on the best that is listed as endangered or We believe that a prompt determination available information, that the following threatened and with respect to its of endangered status for the Alabama activities are unlikely to result in a critical habitat, if any is being sturgeon is essential to its conservation. violation of section 9: Listing the sturgeon will augment designated. Regulations implementing (1) Discharges into waters supporting protection for the species, require this interagency cooperation provision the Alabama sturgeon, provided these consideration by Federal agencies of the of the Act are codified at 50 CFR part activities are carried out in accordance effects of their actions on its survival, 402. Section 7(a)(2) requires Federal with existing regulations and permit and allow recovery planning to proceed, agencies to ensure that activities they requirements (e.g., activities subject to while allowing us additional time to authorize, fund, or carry out are not section 404 of the Clean Water Act and evaluate critical habitat needs. While we likely to jeopardize the continued discharges regulated under the NPDES); received a number of comments existence of such a species or to destroy (2) Continuation of ongoing advocating critical habitat designation, or adversely modify its critical habitat. maintenance dredging of none of these comments provided If a Federal action may affect a listed unconsolidated sediments undertaken information that added to our ability to species or its critical habitat, the or approved by the Corps of Engineers; determine critical habitat. Additionally, responsible Federal agency must enter (3) Development and construction we did not obtain any new information into formal consultation with us. activities designed and implemented in regarding specific physical and Federal activities that could occur and accordance with State and local water biological features essential for the impact the Alabama sturgeon include, quality regulations and implemented Alabama sturgeon during the open but are not limited to, the carrying out using approved Best Management comment period or the public hearing. or the issuance of permits for reservoir Practices; The biological needs of the Alabama construction, stream alterations, (4) Lawful commercial and sport sturgeon are not sufficiently well known discharges, wastewater facility fishing for species other than Alabama to permit identification of areas as development, water withdrawal sturgeon, provided any Alabama critical habitat. Insufficient information projects, pesticide registration, mining, sturgeon caught are immediately is available on spawning and juvenile and road and bridge construction. In our released unharmed; and habitat, instream flow needs, water experience, nearly all section 7 (5) Actions that may affect the quality, and other essential habitat consultations have been resolved so that Alabama sturgeon and are authorized,

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 26458 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations funded, or carried out by a Federal Paperwork Reduction Act training devices are not required to agency when the action is conducted in This rule does not contain any new avoid jeopardy to the species. (4) The accordance with an incidental take collections of information other than removal of unconsolidated materials statement issued by us pursuant to those already approved under the from the river bottom through non- section 7 of the Act. Paperwork Reduction Act, 44 U.S.C. Federal maintenance dredging activities Activities that we believe could 3501 et seq., and assigned Office of is not considered a direct threat to the potentially result in take of the Alabama Management and Budget clearance Alabama sturgeon. (5) Current flow sturgeon include: number 1018–0094. An agency may not patterns are likely adequate to sustain (1) Illegal collection of the Alabama conduct or sponsor, and a person is not the Alabama sturgeon where it is sturgeon; required to respond to, a collection of currently known to occur. (6) There is no need to modify the State’s water (2) Unlawful destruction or alteration information unless it displays a quality standards to protect the Alabama of the Alabama sturgeon’s habitat (e.g., currently valid control number. For sturgeon. (7) Direct or indirect impacts un-permitted instream dredging, additional information concerning to the Alabama sturgeon from coalbed channelization, discharge of fill permit and associated requirements for methane extraction are not anticipated. material); and endangered species, see 50 CFR 17.22. (8) In-stream gravel mining may (3) Illegal discharge or dumping of References Cited adversely affect the Alabama sturgeon toxic chemicals or other pollutants into You may request a complete list of all and would need to be addressed waters supporting the Alabama through consultation. (9) The Alabama sturgeon. references cited in this document, as well as others, from the Mississippi sturgeon would need to be considered Other activities not identified above Field Office (see ADDRESSES section). under other non-Federal activities will be reviewed on a case-by-case basis Author: The primary author of this permitted by the Corps; however, delays to determine if a violation of section 9 document is Paul Hartfield (see in activities are not anticipated. of the Act may be likely to result from ADDRESSES section) (601/321–1125). The findings of the White Paper have such activity. We do not consider these been affirmed, reviewed, and reaffirmed lists to be exhaustive and provide them Introduction to the White Paper through a variety of correspondence as information to the public. (Biggins 1994) between the Corps and us over the last You should direct questions regarding Below is a document entitled Federal 5 years. Immediately following the whether specific activities will Activities That May Affect the Alabama finalization of the White Paper, in a constitute a violation of section 9 to the Sturgeon and Anticipated Section 7 letter dated November 23, 1994, the Field Supervisor, U.S. Fish and Wildlife Consultations on These Activities. This Corps determined that maintenance Service, P.O. Box 1190, Daphne, AL document was developed jointly by dredging and disposal activities had no 36526 (telephone 334/441–5181), or to representatives from the Corps and the effect on the Alabama sturgeon. We the Field Supervisor of the Service’s Service in 1994 in response to concerns supported that determination in a letter Mississippi Field Office (see ADDRESSES raised during public comment periods dated November 28, 1994. Between section). on the 1993 proposed rule to list the October 1998 and April 1999, we and We may issue permits to carry out Alabama sturgeon as an endangered the Corps again carefully reviewed the otherwise prohibited activities species. The document finalized on details and findings of the White Paper involving endangered wildlife species November 18, 1994, was referred to in (four letters—Service, October 21, 1998; under certain circumstances. the 1999 proposed rule to list the Corps, December 21, 1998; Corps, Regulations governing permits are Alabama sturgeon as an endangered February 2, 1999; and Service, April 7, codified at 50 CFR 17.22. You may species and in this final rule as ‘‘Biggins 1999). These letters are all part of the obtain permits for scientific purposes, to 1994,’’ and has become widely known administrative record for this final rule, enhance the propagation or survival of as the White Paper. and summarily clarify and reaffirm the the species, and/or for incidental take in The White Paper carefully reviews the findings of the White Paper. connection with otherwise lawful anticipated impacts of a variety of The findings of the White Paper activities. Send requests for copies of activities in the lower Alabama River to relative to the annual maintenance of regulations regarding listed species and the Alabama sturgeon. To summarize, the existing navigation channel of the inquiries about prohibitions and permits the 1994 White Paper found the Alabama River were further supported to the U.S. Fish and Wildlife Service, following: (1) Based on the information through an exchange of letters from the Ecological Services Division, 1875 available at the time, the Corps’ annual Service’s Southeast Regional Director, Century Boulevard, Suite 200, Atlanta, maintenance dredging program was not Sam D. Hamilton (June 24, 1999 and Georgia 30345 (telephone 404/679– likely to adversely affect the Alabama February 1, 2000) and the Corps’ 7358; facsimile 404/679–7081). sturgeon. However, the Corps, in Division Engineer, Brigadier General J. National Environmental Policy Act conjunction with the Service, agreed to Richard Capka (November 15, 1999). In pursue research to more fully evaluate these exchanges, Regional Director We have determined that impacts of maintenance dredging Hamilton affirmed that the annual Environmental Assessments and activities, particularly with regard to navigation channel maintenance Environmental Impact Statements, as turbidity issues. (2) While removal of dredging programs would have no effect defined under the authority of the rock shelves may adversely affect the on the Alabama sturgeon and would not National Environmental Policy Act of Alabama sturgeon, concerns can be need to be eliminated, modified, or 1969, need not be prepared in adequately addressed through routine altered should the Alabama sturgeon be connection with regulations adopted consultation between the Corps and the listed. Brigadier General Capka pursuant to section 4(a) of the Act. We Service, and this consultation is not concurred with this finding and published a notice outlining our reasons likely to result in a jeopardy situation or requested that the White Paper be for this determination in the Federal delays in activities. (3) While channel published in its entirety with the final Register on October 25, 1983 (48 FR training devices could reduce impacts to rule. In response to this request, the 49244). the Alabama sturgeon, additional White Paper follows in its entirety.

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Finally, this latest exchange of letters including turbidity, on the shovelnose structures in the Alabama River were between Regional Director Hamilton sturgeon, the Service has concurred assumed to eliminate about 60 percent and Brigadier General Capka identified with the Corps’ determination that of dredging requirements at the specific the need for a Memorandum of based on current information their location where such structures were Agreement between the two agencies to annual maintenance dredging program designed and constructed in the last ensure open communication and does not adversely affect the Alabama phase of training works on the Alabama formalize a cooperative process for sturgeon. River. The present system on the dealing with new information that may Thus, as it is currently believed that Alabama River consists of 67 channel alter the earlier no effect finding. The the Corps’ annual maintenance dredging training works at 16 locations. The Service and Corps are currently drafting program on the Alabama and lower Corps has subsequently stated that this agreement. Tombigbee Rivers is not likely to affect based on the Mobile District’s criteria the Alabama sturgeon, these channel for the use of training works, these The White Paper (Biggins 1994) maintenance activities will not need to structures are already used to the Federal Activities That May Affect The be eliminated, modified in timing or maximum extent practicable. However, Alabama Sturgeon and Anticipated duration, or altered to protect the the Service understands that the Corps Section 7 Consultations on These Alabama sturgeon. Therefore, no loss of will continue to evaluate their use, will Activities revenue from diminished annual modify existing structures as necessary, channel maintenance activities will be and may construct additional training Annual maintenance dredging by the associated with the listing of the devices when justified. Corps: Maintenance dredging by the Alabama sturgeon. Although the Service believes that U.S. Army Corps of Engineers (Corps) to Maintenance dredging by the Corps to training devices could reduce impacts to maintain the navigation channel on the remove rock shelves: The Alabama and the Alabama sturgeon and encourages Alabama and lower Tombigbee Rivers Tombigbee Rivers naturally move the Corps to consider their use in future annually removes 1.5 to 3.8 million laterally, and to some extent, vertically. planning, the Service does not believe cubic meters (2 to 5 million cubic yards) This natural river channel movement that more training devices are required of unconsolidated aggregate (e.g., sand, exposes rock shelves at the outer bends to avoid jeopardy to the Alabama mud, and silt). Dredge material from the of the river. In order to provide for a sturgeon. Tombigbee River downstream of reliable and safe navigation channel, Maintenance dredging for non- Coffeeville, Alabama, is disposed of at these rock shelves must sometimes be Federal activities: The Corps authorizes upland sites and within the banks of the removed, and similar channel alignment maintenance dredging for non-Federal river. On the Alabama River, fewer improvements of covered consolidated navigation projects. Although these upland disposal areas have been material are sometimes necessary on the projects are usually on a much smaller established, and the majority of the inside bends. Although the removal of scale that the Corps’ annual dredge materials is placed within the these obstructions to navigation are maintenance dredging activities, they shallow reaches of the river. usually infrequent and restricted to involve the removal of unconsolidated Based on limited information on the isolated areas, this activity may aggregate from navigable waters of the Alabama sturgeon and studies of the adversely affect the Alabama sturgeon. United States and include the discharge shovelnose sturgeon, it appears that The Corps and the Service have of some material back into the these fish require currents over discussed the potential impacts to the waterways. Thus, maintenance dredging relatively stable substrates for feeding Alabama sturgeon of removing these by non-Federal entities comes under the and spawning. They are generally not rock shelves, and both agencies agree Corps’ authority pursuant to section 10 associated with those unconsolidated that section 7 consultation will be of the RHA (33 U.S.C. 403) and section substrates that settle in slower current required prior to the commencement of 404 of the CWA (33 U.S.C. 1344). areas and must be removed annually to any rock shelf removal project within or Maintenance dredging by non-Federal maintain navigation. Therefore, removal adjacent to potential Alabama sturgeon entities for navigation removes and disposal of unconsolidated habitat. However, since both agencies unconsolidated aggregate (e.g., sand, materials is not perceived as a threat to agree that rock shelf removal projects mud, and silt) that washes down from the sturgeon or to its feeding or are generally not emergency projects, upstream portions of the river and from spawning habitat. there will be a sufficient period of time tributaries. Based on limited In the proposed rule, the U.S. Fish prior to the next dredging season for information on the Alabama sturgeon and Wildlife Service (Service) expressed both agencies to consider the timing and and studies of the shovelnose sturgeon, concern that turbidity increases habitat improvements which may be it appears that these fish require associated with the Corps’ annual possible by the design and construction currents over relatively stable substrates maintenance dredging could affect the of the remaining shelf after excavation for feeding and spawning. They are sturgeon, and the Service still has some and by selective placement of the generally not associated with the concern regarding this issue. However, excavated material. Thus, the Service unconsolidated substrates that settle in based on the fact that (1) The Alabama does not anticipate that these slower current areas. Therefore, removal and Tombigbee Rivers are currently consultations will result in a jeopardy of unconsolidated materials is not characterized as turbid rivers; (2) situation or result in delays in these considered as a direct threat to the channel maintenance activities produce maintenance dredging activities. sturgeon or to its feeding or spawning only localized and temporary elevation Use of training devices by the Corps: habitat. of turbidity; (3) the extent to which In the proposed rule, the Service cited Prior to the Corps’ issuance of a turbidity impacts the Alabama sturgeon studies by the Corps and others that the section 404 permit for non-Federal is unknown; and (4) the Corps in use of channel-training devices (e.g., maintenance dredging, the applicant cooperation with the Service has agreed training dikes, jetties, sills, and must receive State water quality to pursue research (within three years revetments) in several rivers in the certification from the State of Alabama and based on the availability of funds) eastern half of the United states reduced pursuant to section 401 of the CWA. As regarding the potential impacts of dredging requirements by over 50 the Service does not believe that more maintenance dredging activities, percent. The Corps’ own data stated that restrictive water quality standards will

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 26460 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations be needed to protect the Alabama The Service’s opinion on flow listing, based on current information, sturgeon from this activity, the requirements for river segments would not increase the need for changes likelihood of an applicant receiving a upstream of Claiborne Lock and Dam, as in State water quality standards. State water quality certification will not stated in the proposed rule, has changed Coalbed methane: The extraction of be affected by the listing of the Alabama somewhat. The Service’s position coalbed methane can necessitate the sturgeon. Additionally, as addressed remains that the best biological release of produced water into the above under Annual maintenance judgement at this time is that a environment, and this discharge was dredging by the Corps, temporary minimum average daily flow of mentioned as a potential threat to the increases in turbidity associated with approximately 90 cms (3,000 cfs) from Alabama sturgeon in the proposed rule. maintenance dredging activities are nor the Robert F. Henry and Millers Ferry The Corps authorizes produced-water currently believed to adversely affect Locks and Dams would be required to discharge structures pursuant to section the Alabama sturgeon; and as dredge maintain a population of the Alabama 10 of the Rivers and Harbors Act of 1899 material from non-Federal maintenance sturgeon upstream of Claiborne Lock (33 U.S.C. 403) if the outfall structure is dredging projects is traditionally and Dam. However, the continued placed into navigable waters of the disposed of at upland sites, potential existence of the sturgeon upstream of United States. The Corps typically impacts to the sturgeon are further Claiborne Lock and Dam has not been authorizes these structures with a Letter reduced. substantiated in nearly a decade, of Permission. Letters of Permission are Changes in river flow patterns: A although anecdotal evidence exists. a type of permit issued through an series of dams now control water flows Therefore, based on our current abbreviated processing procedure that in much of the Mobile River system. knowledge of the Alabama sturgeon and includes coordination with Federal Changes in the natural flow patterns its distribution, no changes in water (including the Service) and State fish have probably had both direct and releases from these structures or from and wildlife agencies, as required by the indirect effects on the Alabama sturgeon structures located in the headwaters of Fish and Wildlife Coordination Act, and and its habitat. In the proposed rule, it the Alabama River system (e.g., Coosa a public interest evaluation, but without was stated that The Service expects that and Tallapoosa Rivers) are being publishing an individual public notice. continuous minimum flows of suggested for the benefit of the sturgeon Letters of Permission may be used in approximately 3,000 [cfs] will be nor are they anticipated by the Service those cases subject to section 10 when, required [to sustain the Alabama as a result of this listing. Thus, without in the opinion of the District Engineer, sturgeon] below both Robert F. Henry changes in flow releases from power- the proposed work would be minor, and Millers Ferry Locks and Dams on generating dams, there should be no loss would not have significant individual or the lower Alabama River and that of electrical power revenue resulting cumulative impacts on environmental * * *minimum flows below Claiborne from listing the Alabama sturgeon. values, and should encounter no Lock and Dam are already maintained at State water quality standards: appreciable opposition. Additionally, approximately 5,000 cfs to provide for Although it is possible that some point- prior to discharge, the applicant must cooling water intake of downstream source discharges negatively impact the receive a permit from the State of industry. Although the Service concedes Alabama sturgeon, there is no evidence Alabama under NPDES guidelines. As that little information on the flow needs to support the conclusion that the the Alabama sturgeon exists far of the sturgeon is available, a minimum State’s water quality standards must be downstream of these permit activities, figures of 90 cms (3,000 cfs) was arrived changed if the fish is listed. As the Service does not believe that any at by Service and other biologists discussed in the proposed rule, the modification to existing discharge familiar with the Alabama River and its potential exists for point discharges to structure authorization procedures is fish populations. impact the Alabama sturgeon, and it is needed to protect the Alabama sturgeon. The Service now has evidence of the noted that there is an increasing The potential coalbed methane wells continued existence of the Alabama demand for discharge permits in the are far upstream of known Alabama sturgeon in the free-flowing portion of Mobile River system. However, there are sturgeon habitat and any discharge must the Alabama River downstream of two factors that work to minimize any meet State water quality standards (the Claiborne Lock and Dam and that the impacts to this fish from point-source Service has stated that the water quality Alabama Power Company (APC), discharges: (1) As the Alabama sturgeon standards will not have to be modified through an agreement with the Corps, inhabits larger channel areas, the effects in order to protect the Alabama attempts to maintain (for the purposes of any point discharge into its habitat sturgeon). Therefore, the Service does of navigation) a minimum average daily would likely be minimized by dilution not anticipate any direct or indirect flow of approximately 149 cms (4,640 and (2) the State of Alabama, with impacts to the Alabama sturgeon from cfs) over any seven consecutive day assistance from and oversight by the properly permitted produced-water period and a minimum average daily EPA, sets water quality standards that discharges. flow of approximately 81 cms (2,667 cfs) are presumably protective of aquatic Gravel mining: In-stream gravel over any three consecutive day period life. mining involves work in navigable downstream of Claiborne Lock and It is the Service’s position, as stated waters of the United States and includes Dam. Further, the average daily flows in the proposed rule, that as long as the discharge of the noncommercial over the last decade downstream of current fish and wildlife standards dredge material back into the waterway. Claiborne Lock and Dam have ranged under the CWA are used to issue Thus, in-stream gravel mining comes from 114 to 6,912 cms (3,800 to 244,000 discharge permits and the conditions of under the Corps’ authority, pursuant to cfs). Therefore, the Service believes that the permits are enforced, there is no section 10 of the RHA (33 U.S.C. 403) the minimum average daily flows, as need to modify the State’s water quality and section 404 of the CWA (33 U.S.C. agreed to by the Corps and the APC, standards to protect the Alabama 1344). The Service believes that the coupled with historic and Federal sturgeon. A violation of State water Alabama sturgeon likely uses relatively Energy Regulatory Commission ordered quality standards would be a violation stable substrate for breeding and feeding flow patterns, are likely adequate to of the CWA, and listing the Alabama habitat. Thus, mining of this stable sustain the Alabama sturgeon in this sturgeon could potentially increase substrate could threaten the species. river reach. noncompliance penalties. However, the However, the Service believes the

VerDate 272000 13:58 May 04, 2000 Jkt 190000 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm04 PsN: 05MYR2 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26461 mining of unconsolidated material or historic range of the Alabama sturgeon. By: Richard Biggins, U.S. Fish and relatively stable material that is covered These non-Federal activities are Wildlife Service, Asheville Field Office, by several inches of fine sediment regulated through the Corps’ regulatory 330 Ridgefield Court, Asheville, North would not be likely to jeopardize the program and evaluated on a case by case Carolina 28806 (telephone: 704/665– species’ continued existence. basis. Although these activities are on a 1195 ext. 228, facsimile: 704/665–2782) Prior to the issuance of a permit by much smaller scale than most other Note: Material contained in this document the Corps for in-stream gravel mining, activities authorized by the Corps, these will be included in any final Alabama the applicant must receive State water actions are more numerous and sturgeon rule that might be produced by the quality certification from the State of therefore could present a greater number Service. Alabama pursuant to section 401 of the of opportunities for the Service to List of Subjects in 50 CFR Part 17 CWA. As the Service does not believe consider impacts to the sturgeon. Thus, that more restrictive water quality concern has been expressed that if the Endangered and threatened species, standards will be needed to protect the Alabama sturgeon is listed permit Exports, Imports, Reporting and Alabama sturgeon from this activity, the applicants will be burdened by time recordkeeping requirements, likelihood of an applicant’s receiving delays and by requirements to conduct Transportation. State water quality certification will not sturgeon surveys. The Service be affected by the listing of the Alabama recognizes that some of the non-Federal Regulation Promulgation sturgeon. However, as in-stream gravel activities authorized by the Corps (e.g., Accordingly, we amend part 17, mining generally produces higher bridge pier placement and pipeline turbidity levels than are produced by subchapter B of chapter I, title 50 of the crossings) in the Alabama River system Code of Federal Regulations, as follows. maintenance dredging, the Service could be delayed by a requirement to believes that increases in turbidity conduct endangered species surveys PART 17Ð[AMENDED] within Alabama sturgeon habitat from (Alabama sturgeon plus other listed in-stream gravel mining activities could species). However, it has been the 1. The authority citation for part 17 be considered a ‘‘may adversely affect experience of the Service that most of continues to read as follows: situation that the Corps would need to these non-Federal activities do not Authority: 16 U.S.C. 1361–1407; 16 U.S.C. address through section 7 consultation require a survey and further are not with the Service. However, the Service 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– delayed because of endangered species 625, 100 Stat. 3500, unless otherwise noted. does not anticipate that turbidity issues. produced from gravel-mining of 2. Amend § 17.11(h) by adding the unconsolidated substrates would likely Prepared: November 18, 1994. following to the List of Endangered and jeopardize the continued existence of This document [White Paper] was Threatened Wildlife, in alphabetical the Alabama sturgeon. prepared jointly by the Fish and order under FISHES: Other regulatory activities of the Wildlife Service and the U.S. Army Corps: The Corps authorizes other non- Corps of Engineers in accordance with § 17.11 Endangered and threatened wildlife. Federal activities (e.g., pipelines, piers, the September 1994 Memorandum of wharfs, and small boat channels) within Understanding on Implementation of * * * * * waters of the United States within the the Endangered Species Act. (h) * * *

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

Fishes:

******* Sturgeon, Ala- Scaphirhynchus U.S.A. (AL, MS) ...... Entire ...... E 697 NA NA bama. suttkusi.

*******

Dated: April 30, 2000. Jamie Rappaport Clark, Director, Fish and Wildlife Service. [FR Doc. 00–11131 Filed 5–2–00; 8:45 am] BILLING CODE 4310±55±U

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