Wednesday, October 6, 2010

Part II

Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224 Endangered and Threatened Wildlife and Plants; Proposed Rules

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DEPARTMENT OF COMMERCE All comments received are a part of prepared for each DPS. In addition, any the public record and will generally be protective regulations determined to be National Oceanic and Atmospheric posted to http://www.regulations.gov necessary and advisable for the Administration without change. All Personal Identifying conservation of the GOM DPS under Information (for example, name, ESA section 4(d) will be proposed in a 50 CFR Parts 223 and Part 224 address, etc.) voluntarily submitted by subsequent Federal Register document. the commenter may be publicly RIN 0648–XJ00 Background accessible. Do not submit Confidential [Docket No. 100903414–0414–02] Business Information or otherwise There are two subspecies of Atlantic sensitive or protected information. — oxyrinchus Endangered and Threatened Wildlife We will accept anonymous comments oxyrinchus, which is commonly referred and Plants; Proposed Listing (enter ‘‘n/a’’ in the required fields if you to as , and Acipenser Determinations for Three Distinct wish to remain anonymous). oxyrinchus desotoi, commonly referred Population Segments of Atlantic Attachments to electronic comments to as . This proposed rule Sturgeon in the Northeast Region will be accepted in Microsoft Word, addresses the subspecies Acipenser AGENCY: National Marine Excel, WordPerfect, or Adobe PDF file oxyrinchus oxyrinchus (hereafter Service (NMFS), National Oceanic and formats only. referred to as Atlantic sturgeon), which Atmospheric Administration (NOAA), The proposed rule, status review is distributed along the eastern coast of Commerce. report, and other reference materials North America. regarding this determination are ACTION: Proposed rule; request for Listing Species Under the Endangered comments. available electronically at the following Web site at http://www.nero.noaa.gov/ Species Act SUMMARY: We, NMFS, have completed prot_res/CandidateSpeciesProgram/ We, NMFS, are responsible for an Endangered Species Act (ESA) status cs.htm or by submitting a request to the determining whether Atlantic sturgeon review for Atlantic sturgeon (Acipenser Assistant Regional Administrator, are threatened or endangered under the oxyrinchus oxyrinchus). Based on the Protected Resources Division, NMFS, ESA (16 U.S.C. 1531 et seq.). status review report (ASSRT, 2007), and Northeast Region, 55 Great Republic Accordingly, based on the statutory, other information available since Drive, Gloucester, MA 01930. regulatory, and policy provisions completion of the status review report, FOR FURTHER INFORMATION CONTACT: described below, the steps we followed we have determined that the species is Lynn Lankshear, NMFS, Northeast in making our listing determination for comprised of five distinct population Region (978) 282–8473; Kimberly Atlantic sturgeon were to: (1) Determine segments (DPSs) that qualify as species Damon-Randall, NMFS, Northeast how Atlantic sturgeon meet the under the ESA: Gulf of (GOM); Region (978) 282–8485; or Marta definition of ‘‘species’’; (2) determine the New York Bight (NYB); Chesapeake Bay Nammack, NMFS, Office of Protected status of the species and the factors (CB); Carolina; and South Atlantic. We Resources (301) 713–1401. affecting it; and (3) identify and assess have also determined that, for those SUPPLEMENTARY INFORMATION: efforts being made to protect the species DPSs that are located within the and determine if these efforts are jurisdiction of NMFS’ Northeast Region, Public Comments Solicited adequate to mitigate existing threats. listing as threatened is warranted for the We solicit scientific and commercial To be considered for listing under the GOM DPS, and listing as endangered is information to inform the listing ESA, a group of organisms must warranted for the NYB DPS and CB determinations for the GOM, NYB, and constitute a ‘‘species.’’ A ‘‘species’’ is DPS. A separate proposed listing CB DPSs to ensure that the final action defined in section 3 of the ESA to determination is issued for the two resulting from this proposal considers include ‘‘any subspecies of fish or DPSs within NMFS’ Southeast Region in information that is comprehensive and wildlife or plants, and any distinct today’s Federal Register. current. We particularly seek comments population segment of any species of DATES: Comments on this proposal must concerning: information on the vertebrate fish or wildlife which be received by January 4, 2011. At least abundance and distribution of Atlantic interbreeds when mature.’’ On February one public hearing will be held in a sturgeon belonging to the GOM, NYB, 7, 1996, the NMFS and U.S. Fish and central location for each DPS; notice of and/or the CB DPSs; information Wildlife Service (collectively the the locations and times of the hearings concerning the viability of and/or ‘‘Services’’) adopted a policy to clarify will be published in the Federal threats to Atlantic sturgeon belonging to our interpretation of the phrase ‘‘distinct Register not less than 15 days before the the GOM, NYB, and/or the CB DPSs; population segment of any species of hearings are held. efforts being made to protect Atlantic vertebrate fish or wildlife’’ (61 FR 4722). ADDRESSES: You may submit comments, sturgeon belonging to the GOM, NYB, or The joint DPS policy describes two identified by the RIN 0648–XJ00, by any CB DPSs; and the mixing of fish from criteria that must be considered when of the following methods: different DPSs in parts of their ranges, identifying DPSs: (1) The discreteness of • Federal eRulemaking Portal: http// particularly the marine environment. the population segment in relation to www.regulations.gov. Follow the We are not proposing critical habitat the remainder of the species (or instructions for submitting comments. for the GOM, NYB, or CB DPSs at this subspecies) to which it belongs; and (2) • Fax: To the attention of Lynn time, given that further analysis of GIS the significance of the population Lankshear at (978) 281–9394. mapping data is necessary for segment to the remainder of the species • Mail or hand-delivery: Submit determining the critical habitat of each (or subspecies) to which it belongs. As written comments to the Assistant of the three DPSs. Therefore, we will further stated in the joint policy, if a Regional Administrator, Protected propose to designate critical habitat for population segment is discrete and Resources Division, NMFS, Northeast each DPS in a separate Federal Register significant (i.e., it meets the DPS policy Region, 55 Great Republic Drive, notification once analysis of the data is criteria), its evaluation for endangered Gloucester, MA 01930. complete. If the proposed listing is or threatened status will be based on the Instructions: finalized, a recovery plan will be ESA’s definition of those terms and a

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review of the five factors enumerated in species list (subsequently changed to Bight, Chesapeake Bay, Carolina, and section 4(a)(1) of the ESA. the Species of Concern List (69 FR South Atlantic DPSs), with the Gulf of The ESA defines an endangered 19975; April 15, 2004)). Maine and South Atlantic DPSs listed as species as ‘‘any species which is in Concurrently, the Atlantic States threatened, and the remaining three danger of extinction throughout all or a Marine Fisheries Commission (ASMFC) DPSs listed as endangered. The significant portion of its range’’ and a completed Amendment 1 to the 1990 petitioner also requested that critical threatened species as one ‘‘which is Atlantic Sturgeon Management habitat be designated for Atlantic likely to become an endangered species Plan (FMP) that imposed a 20–40 year sturgeon under the ESA. We published within the foreseeable future throughout moratorium on all Atlantic sturgeon a Notice of 90-Day Finding on January all or a significant portion of its range.’’ fisheries until the Atlantic Coast 6, 2010 (75 FR 838), stating that the As provided in section 4(a) of the ESA, spawning stocks could be restored to a petition presented substantial scientific the statute requires us to determine level where 20 subsequent year classes or commercial information indicating whether any species is endangered or of adult females were protected that the petitioned actions may be threatened because of any of the (ASMFC, 1998). In 1999, pursuant to warranted. following five factors: (1) The present or section 804(b) of the Atlantic Coastal The status review report upon which threatened destruction, modification, or Fisheries Cooperative Management Act this proposed rule is based provides curtailment of its habitat or range; (2) (ACFCMA) (16 U.S.C. 5101 et seq.), we extensive information on Atlantic overutilization for commercial, followed this action by closing the sturgeon biology, life history, recreational, scientific, or educational Exclusive Economic Zone (EEZ) to distribution, and abundance to support purposes; (3) disease or predation; (4) Atlantic sturgeon retention. In 2003, we its conclusions. A summary of this the inadequacy of existing regulatory sponsored a workshop with the U.S. information is provided below. More mechanisms; or (5) other natural or Fish and Wildlife Service (FWS) and the detailed information is available in the manmade factors affecting its continued ASMFC entitled ‘‘Status and status review report. existence (section 4(a)(1)(A)(E)). Management of Atlantic Sturgeon,’’ to Biology and Life History of Atlantic Section 4(b)(1)(A) of the ESA further discuss the status of Atlantic sturgeon Sturgeon requires that listing determinations be along the Atlantic Coast and determine based solely on the best scientific and what obstacles, if any, were impeding Atlantic sturgeon are distinguished by commercial data available after taking their recovery (Kahnle et al., 2005). The armor-like plates and a long snout with into account efforts being made to results of the workshop indicated some a ventrally located protruding mouth. protect the species. In judging the river populations (hereafter referred to Four barbels crossing in front of the efficacy of existing protective efforts, we as ‘‘subpopulations’’) seemed to be mouth help the sturgeon to locate prey. rely on the Service’s joint ‘‘Policy for recovering while others were declining. Sturgeon are omnivorous benthic Evaluation of Conservation Efforts Bycatch and habitat degradation were feeders (feed off the bottom) and filter When Making Listing Decisions’’ noted as possible causes for continued quantities of mud along with their food. (‘‘PECE’’; 68 FR 15100; March 28, 2003). declines. Adult sturgeon diets include mollusks, The PECE provides direction for Based on the information gathered gastropods, amphipods, isopods, and consideration of conservation efforts from the 2003 workshop on Atlantic fish. Juvenile sturgeon feed on aquatic that have not been implemented, or sturgeon, we decided that a second insects and other invertebrates (ASSRT, have been implemented but not yet review of Atlantic sturgeon status was 2007). demonstrated effectiveness. needed to determine if listing as The general life history pattern of endangered or threatened under the Atlantic sturgeon is that of a long lived Status Review ESA was warranted. We, therefore, (approximately 60 years; Mangin, 1964; We first identified Atlantic sturgeon established a status review team (SRT) Stevenson and Secor, 1999), late as a candidate species in 1991; at that consisting of NMFS, FWS, and U.S. maturing, estuarine dependent, time, the candidate species list served to Geological Survey (USGS) scientists anadromous species (ASSRT, 2007). notify the public that we had concerns with relevant expertise to assist us in They can reach lengths up to 14 feet regarding these species that may assessing the viability of the species (4.26 m), and weigh over 800 pounds warrant listing in the future, and it throughout all or a significant portion of (∼364 kg). facilitated voluntary conservation its range. The SRT was asked to Fecundity of female Atlantic sturgeon efforts. On June 2, 1997, the Services consider the best scientific and has been correlated with age and body received a petition from the Biodiversity commercial information available, size, with observed egg production Legal Foundation requesting that we list including the technical information and ranging from 400,000 to 4 million eggs Atlantic sturgeon in the United States as comments from state and regional per spawning year (Smith et al., 1982; threatened or endangered and designate experts. The draft status review report Van Eenennaam et al., 1996; Van critical habitat within a reasonable prepared by the SRT was peer reviewed Eenennaam and Doroshov, 1998; period of time following the listing. A by experts from academia, and their Dadswell, 2006). Female gonad weight notice was published in the Federal comments were incorporated. A Notice varies from 12–25 percent of the total Register on October 17, 1997, stating of Availability of this report was body weight (Smith, 1907; Huff, 1975; that the Services had determined published in the Federal Register on Dadswell, 2006). Therefore, the substantial information existed April 3, 2007 (72 FR 15865). fecundity of a 770-pound (350 kg) indicating the petitioned action may be On October 6, 2009, we received a female, like the one captured in the St. warranted (62 FR 54018). In 1998, after petition from the Natural Resources John River, Canada, in 1924, could be completing a comprehensive status Defense Council to list Atlantic sturgeon 7–8 million eggs (Dadswell, 2006). The review, the Services published a 12- as endangered under the ESA. As an average age at which 50 percent of the month determination in the Federal alternative, the petitioner requested that maximum lifetime egg production is Register, announcing that listing was the species be delineated and listed as achieved is estimated to be 29 years not warranted at that time (63 FR 50187; the five DPSs described in the 2007 (Boreman, 1997). September 21, 1998). We retained Atlantic sturgeon status review (ASSRT, Atlantic sturgeon likely do not Atlantic sturgeon on the candidate 2007) (i.e., , New York every year. Multiple studies have shown

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that spawning intervals range from 1–5 (Scott and Crossman, 1973). In general, Smith and Clugston, 1997; Secor and years for males (Smith, 1985; Collins et Atlantic sturgeon subpopulations show Waldman, 1999). The fishery collapsed al., 2000; Caron et al., 2002) and 2–5 clinal variation with faster growth and in 1901, 10 years after peak landings, years for females (Vladykov and earlier age at maturation for fish when less than 10 percent (295 mt) of Greeley, 1963; Van Eenennaam et al., originating from more southern systems, its 1890 peak landings were reported. 1996; Stevenson and Secor, 1999). though not all data sets conform to this During the 1950s, the remaining fishery Spawning behavior also differs between trend. Timing of spawning migrations switched to targeting sturgeon for flesh, the sexes. While there is a window of also exhibit a latitudinal pattern in rather than caviar. Commercial fisheries time for each river during which which migrations generally occur were active in many rivers during all or spawning occurs, spawning females do during February-March in southern some of the period from 1962 to 1997, not migrate upstream together. systems, April-May in mid-Atlantic albeit at much lower levels than in the Individual females make rapid systems, and May-July in Canadian late 1800s—early 1900s (Taub, 1990; spawning migrations upstream and systems (Murawski and Pacheco, 1977; Smith and Clugston, 1997). quickly depart following spawning Smith, 1985; Bain, 1997; Smith and Nevertheless, many of these (Bain, 1997). Spawning males usually Clugston, 1997; Caron et al., 2002). In contemporary fisheries also resulted in arrive on the spawning grounds before some rivers, predominantly in the overfishing, which prompted the any of the females have arrived and south, a fall spawning migration may ASMFC to impose the 1998 coastwide leave after the last female has spawned also occur (Rogers and Weber, 1995; moratorium for fisheries targeting (Bain, 1997). Presumably, this provides Weber and Jennings, 1996; Moser et al., Atlantic sturgeon and NMFS to close the an opportunity for a single male to 1998). EEZ to Atlantic sturgeon retention in fertilize eggs of multiple females. 1999. Spawning is believed to occur in Distribution and Abundance Currently, Atlantic sturgeon presence flowing water between the salt front of Historically, Atlantic sturgeon were is documented in 36 rivers in the United estuaries and the fall line of large rivers, present in approximately 38 rivers in States and Canada, combined (ASSRT, where optimal flows are 46–76 cm/s and the United States from St. Croix, ME, to 2007; J. Sulikowski, UNE, pers. comm.). depths are 11–27 m (Borodin, 1925; the Saint Johns River, FL, 35 of which At least 18 rivers are believed to support Leland, 1968; Scott and Crossman, 1973; have been confirmed to have supported spawning based on available evidence Crance, 1987; Bain et al., 2000). spawning for Atlantic sturgeon (ASSRT, (i.e., presence of young-of-year or gravid Sturgeon eggs are highly adhesive and 2007). It is unknown how many Atlantic sturgeon documented within are deposited on the bottom substrate, Canadian rivers were historically used the past 15 years) (ASSRT, 2007). These usually on hard surfaces such as cobble by Atlantic sturgeon. However, it is rivers are: Saint Lawrence, QB; (Gilbert, 1989; Smith and Clugston, likely that Atlantic sturgeon spawn(ed) Annapolis, NS; Saint John, NB; 1997). Hatching occurs approximately in the Miramichi, Shubenacadie, Avon, Kennebec, ME; Hudson, NY; Delaware, 94 and 140 hours after egg deposition at Annapolis, and in other systems of NJ/DE/PA; James, VA; Roanoke, NC; temperatures of 20° and 18 °C, similar size in addition to the presently Tar-Pamlico, NC; Cape Fear, NC; respectively, and, once hatched, larvae known subpopulations that spawn in Waccamaw, SC; Great PeeDee, SC; assume a demersal existence (Smith et the Saint Lawrence River and Saint John Combahee, SC; Edisto, SC; Savannah, al., 1980). The yolksac larval stage is River (reviewed in Dadswell, 2006; SC/GA; Ogeechee, GA; Altamaha, GA; completed in about 8–12 days, during ASSRT, 2007). Overall, historical and, the Satilla, GA (ASSRT, 2007). which time the larvae move sightings of Atlantic sturgeon were Rivers with possible, but unconfirmed, downstream to the rearing grounds generally reported from Hamilton Inlet, spawning include: St Croix, NB/ME; (Kynard and Horgan, 2002). During the Labrador, south to the Saint Johns River, Penobscot, Androscoggin, and first half of this migration, larvae move Florida (Murawski and Pacheko, 1977; Sheepscot, ME, York, VA; Neuse, NC; only at night and use benthic structure Smith and Clugston, 1997; ASSRT, Santee and Cooper Rivers; spawning (e.g., gravel matrix) as refuge during the 2007). Occurrences south of the Saint may occur in the Santee and/or the day (Kynard and Horgan, 2002). During Johns River, Florida, and north of Cooper Rivers, but it may not result in the latter half of migration to the rearing Hamilton Inlet, Labrador, may have successful recruitment (ASSRT, 2007). grounds, when larvae are more fully always been rare. Comprehensive information on developed, movement occurs during It is clear that Atlantic sturgeon current abundance of Atlantic sturgeon both day and night. Larvae transition underwent significant range-wide is lacking for any of the spawning rivers into the juvenile phase as they continue declines from historical abundance (ASSRT, 2007). In the United States, an to move even further downstream into levels due to overfishing (reviewed in estimate of 870 spawning adults/year is brackish waters, developing a tolerance Smith and Clugston, 1997). Although available for the Hudson River (Kahnle to salinity as they go, and eventually Atlantic sturgeon had been previously et al., 2007). An estimate of 343 become residents in estuarine waters for exploited in commercial fisheries (Scott spawning adults/year is available for the months to years before emigrating to and Crossman, 1973; Taub, 1990; Altamaha River, GA, based on data open ocean as subadults (Holland and Dadswell, 2006; ASSRT, 2007), records collected in 2004–2005 (Schueller and Yelverton, 1973; Doevel and Berggen, from the 1700s and 1800s document Peterson, 2006). Data collected from the 1983; Waldman et al., 1996a; Dadswell, large numbers of sturgeon in many Hudson River and Altamaha River 2006; ASSRT, 2007). rivers along the Atlantic coast studies cannot be used to estimate the Atlantic sturgeon that originate from ( Resource Management total number of adults in either different rivers demonstrate differences Plan, 1993; Armstrong and Hightower, subpopulation, since mature Atlantic in growth rate, maturation, and timing 2002). However, in 1870, a significant sturgeon may not spawn every year of spawning. For example, Atlantic fishery for the species developed when (Vladykov and Greeley, 1963; Smith, sturgeon mature in South Carolina river a caviar market was established. Record 1985; Van Eenennaam et al., 1996; systems at 5 to 19 years (Smith et al., landings were reported in 1890, when Stevenson and Secor, 1999; Collins et 1982), in the Hudson River at 11 to 21 over 3,350 metric tons (mt) of Atlantic al. 2000; Caron et al., 2002), and it is years (Young et al., 1998), and in the sturgeon were landed from coastal rivers unclear to what extent mature fish in a Saint Lawrence River at 22 to 34 years along the Atlantic Coast (reviewed in non-spawning condition occur on the

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spawning grounds. Nevertheless, since successful spawning is still occurring in (61 FR 4722; February 7, 1996). The the Hudson and Altamaha rivers are the Delaware River. high degree of reproductive isolation of presumed to have the healthiest Atlantic Within the Chesapeake Bay, the FWS Atlantic sturgeon (i.e., homing to their sturgeon subpopulations within the has been funding the Maryland Reward natal rivers for spawning) (K. Hattala,, United States, other U.S. Program since 1996; this program has NYDEC, pers. comm., 1998; Wirgin et subpopulations are predicted to have resulted in the documentation of al., 2000; King et al., 2001; Waldman et fewer spawning adults than either the approximately 1,700 Atlantic sturgeon. al., 2002) as well as the ecological Hudson or the Altamaha (ASSRT, 2007). Five hundred and sixty-seven of these uniqueness of those riverine spawning In Canada, an estimate of spawning size fish were hatchery fish, of which 462 habitats and the genetic diversity among is available for the Saint Lawrence River were first time captures (14 percent subpopulations, provides evidence that where tagging work suggests a total recapture rate), and the remaining several populations meet the DPS Policy spawning subpopulation of over 500 captures (1,133) were wild fish. criteria. Therefore, prior to evaluating adults (Caron et al., 2002; Dadswell, Virginia also instituted an Atlantic the for Atlantic 2006). sturgeon reward program in the sturgeon, and in accordance with the Surveys and other programs (e.g., Chesapeake Bay in 1997 and 1998 joint DPS policy, we considered: (1) The reward programs) have provided more (ASSRT, 2007; A. Spells, FWS, pers. discreteness of any Atlantic sturgeon qualitative information on Atlantic comm., 2008). This reward program population segment in relation to the sturgeon subpopulations. While these documented and measured 295 Atlantic remainder of the subspecies to which it programs may not have sufficient sturgeon. Data collected during the belongs; and (2) the significance of any information by which to generate any reward program documents the Atlantic sturgeon population segment to subpopulation estimate(s), they do presence of YOY fish. Such data include the remainder of the subspecies to provide some river-specific information length information which shows that which it belongs. on abundance, trends, evidence of 18.6 percent (55 of 295 measured) of the spawning, and/or documentation of fish caught were within the 20 to 40 cm Discreteness multiple-year classes. For example, a fork length size class (A. Spells, FWS, The joint DPS policy states that a multi-filament gill net survey conducted pers. comm., 2008). In addition, aging of population of a vertebrate species may intermittently in the Kennebec River fish spines collected from the fish be considered discrete if it satisfies suggested that 34 percent were age 1 from 1977–2000 captured 336 Atlantic either one of the following conditions: (A. Spells, FWS, pers. comm., 2008). sturgeon (9 adults and 327 subadults) (1) It is markedly separated from other This information is important in that it (Squiers, 2004). During this period, the populations of the same taxon as a strongly suggests the presence of catch-per-unit effort (CPUE) of subadult consequence of physical, physiological, spawning in one or more rivers that Atlantic sturgeon increased by a factor ecological, or behavioral factors flow into the Bay. Further evidence of of 10–25 (1977–1981 CPUE = 0.30 (quantitative measures of genetic or Atlantic sturgeon spawning in the versus 1998–2000 CPUE = 7.43). The morphological discontinuity may CPUE of adult Atlantic sturgeon showed Chesapeake Bay area is provided by provide evidence of this separation); or a slight increase over the same time three carcasses of large adults found in (2) it is delimited by international period (1977–1981 CPUE = 0.12 versus the James River in 2000–2003; the governmental boundaries within which 1998–2000 CPUE = 0.21) (Squiers, discovery of a 213 cm TL carcass of an differences in control of exploitation, 2004). adult found in the Appomattox River in An intensive gill net survey was 2005; the capture and release of a 240 management of habitat, conservation conducted in the from cm TL Atlantic sturgeon near Hoopers status, or regulatory mechanisms exist 1987–1990 to determine annual Island, MD in April, 1998 that are significant in light of Section movements, spawning, summering, and (S. Minkkinen, FWS, pers. comm., 4(a)(1)(D) of the ESA. wintering areas of shortnose and 2006); documentation of a gravid adult As has already been discussed, adult Atlantic sturgeon (Kieffer and Kynard, female Atlantic sturgeon off Tilghman and subadult Atlantic sturgeon which 1993). Thirty-six Atlantic sturgeon were Island, MD in April, 2007 (the first originate from different rivers mix in the captured (70–156 cm total length (TL)); gravid female documented in the marine environment (Stein et al., 2004; most were under 100 cm TL, suggesting Maryland portion of the Chesapeake Bay USFWS, 2004). Nevertheless, there is that these were all subadult sturgeon since the early 1970s); and the capture marked separation of Atlantic sturgeon (Kieffer and Kynard, 1993). of several males producing milt (sperm) as a result of both spatial and temporal In Delaware, gill net surveys are in the James River in 2007 and 2008 (A. separation of reproduction among river conducted on the Delaware River by the Spells, FWS, pers. comm.). subpopulations. Tagging studies and state’s Division of Fish and Wildlife as genetic analyses provide evidence that part of their Atlantic Sturgeon Research Identification of Distinct Population Atlantic sturgeon return to their natal program. Since 1991, more than 2,000 Segments rivers for spawning (K. Hattala, NYDEC, Atlantic sturgeon have been captured As described above, the ESA’s pers. comm., 1998; Wirgin et al., 2000; and tagged (DNREC, 2009). Based on definition of ‘‘species’’ includes ‘‘any King et al., 2001; Waldman et al., 2002). their length, most are believed to have subspecies of fish or wildlife or plants, As previously mentioned, Atlantic been subadults. In September 2009, and any distinct population segment of sturgeon are temporally separated with however, personnel captured their any species or vertebrate fish or wildlife respect to spawning, since all adults are smallest sturgeon yet; an age 0 fish, which interbreeds when mature.’’ As not reproductively active at the same which was 7 inches TL (178 mm) and previously described, Atlantic sturgeon time within each year (Murawski and weighed less than an ounce (DNREC, originating from different rivers are Pacheco, 1977; Smith, 1985; Rogers and 2009). In all, 34 young-of-year (YOY) known to co-occur in the marine Weber, 1995; Bain, 1997; Smith and sturgeon were caught during the environment and use multiple river Clugston, 1997; Moser et al., 1998; sampling period (September 9– systems for life functions, such as Caron et al., 2002). For example, November 9, 2009), ranging in size from foraging. The DPS policy does not Atlantic sturgeon spawn in the Hudson 178 to 349 mm TL (Fisher, 2009). These require absolute separation of a DPS River in May through July (Bain, 1997), captures provide evidence that from other members of its species while spawning in the St. Lawrence

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River occurs in June through July (Caron average accuracy of 94 percent for River population with the James River et al., 2002). correctly classifying it to one of five population). The SRT also considered genetics data population groups (Kennebec River, We have considered the information to further inform its decisions as to Hudson River, James River, Albemarle on Atlantic sturgeon population whether there is discreteness amongst Sound, and Savannah/Ogeechee/ structuring provided in the status Atlantic sturgeon subpopulations. Altamaha Rivers) when using review report and Grunwald et al. Genetics analyses for Atlantic sturgeon microsatellite data collected only from (2008) and have concluded that five using mitochondrial DNA (mtDNA), YOY and adults. A phylogenetic tree discrete Atlantic sturgeon population which is maternally inherited, and (neighbor joining tree) was produced segments are present in the United nuclear DNA (nDNA), which reflects the from only YOY and adult samples (to States, with three located in the genetics of both parents, have reduce the likelihood of including strays Northeast: (1)—The ‘‘Gulf of Maine consistently shown that Atlantic from other subpopulations) using the (GOM)’’ population segment, which sturgeon subpopulations are genetically microsatellite analysis. Bootstrap values includes Atlantic sturgeon that originate diverse and that individual (which measure how consistently the from the Kennebec River, (2)—the ‘‘New subpopulations can be differentiated data support the tree structure) for this York Bight (NYB)’’ population segment, (Bowen and Avise, 1990; Ong et al., tree were for analyses of: (1) 12 loci of which includes Atlantic sturgeon 1996; Waldman et al., 1996a; Waldman samples collected from YOY and adults; originating from the Hudson and et al., 1996b; Waldman and Wirgin, and (2) 7 loci for samples of YOY, Delaware Rivers, and (3)—the 1998; Waldman et al., 2002; King et al., subadult, and adult Atlantic sturgeon ‘‘Chesapeake Bay (CB)’’ population 2001; Wirgin et al., 2002; Wirgin et al., (ASSRT, 2007, Figures 16–18). segment, which includes Atlantic 2005; Wirgin and King supplemental Classification success rate averaged 79.0 sturgeon that originate from the James data, 2006; Grunwald et al., 2008). New percent for determining a sturgeon’s and York Rivers. Each is markedly analyses of both mtDNA and nDNA natal river and 86.9 percent for correctly separate from the other four population were conducted specifically for the classifying sturgeon to one of five segments as a consequence of physical status review. In comparison to previous population groups (Kennebec River, factors. studies, the genetic analyses for the Hudson River, James River, Albemarle With respect to Atlantic sturgeon of status review employed greater sample Sound, and Savannah/Ogeechee/ Canadian origin, mtDNA analysis has sizes from multiple rivers, and limited Altamaha Rivers) (ASSRT, 2007). shown that Atlantic sturgeon originating the samples analyzed to those collected from rivers ranging from the Kennebec ≤ Regarding sturgeon from northeast from YOY and mature adults ( 130 cm rivers, this analysis resulted in a range River, Maine, to the Saint Lawrence TL) to ensure that the fish originated of 81 to 89 percent accuracy in River, Canada, are predominately homogenous (one genotype) (Waldman from the river in which it was sampled determining a sturgeon’s natal river of et al., 2002; Grunwald et al., 2008; (Wirgin and King supplemental data, origin and correctly classifying a ASSRT, 2007). However, nDNA 2006; ASSRT, 2007). The results for sturgeon to a population group. To microsatellite analysis has found these both the mtDNA haplotype and further assess the accuracy of the same rivers to be genetically diverse microsatellite (nDNA) allelic results, King (supplemental data, 2006) (King, supplemental data, 2006). The frequencies indicated that all of the reanalyzed the nDNA using a greater SRT concluded that the differences in Atlantic sturgeon subpopulations for number of loci. His results showed that nDNA were sufficient to determine that which there are samples available are increasing the number of loci from 7 to genetically differentiated (ASSRT, 2007; Atlantic sturgeon which originate in 12 improved the classification rates for Tables 4 and 5) from each other. The Canada are markedly separate from natal origin and identification of results of the mtDNA analysis used for Atlantic sturgeon of U.S. origin. population groupings (e.g., from 84 the status review report were also The genetic analyses support that at percent to 95 percent for the James subsequently published by Grunwald et least one, and possibly more, discrete River), but did not change the al. (2008). In comparison to the mtDNA Atlantic sturgeon population groupings conclusion that there are five discrete analyses used for the status review occur in Canada. The SRT did not Atlantic sturgeon population segments report, Grunwald et al. used additional further consider the status of Atlantic in the United States. samples, some from fish in the size sturgeon originating in Canada once it range (< 130 cm TL) excluded by Wirgin In summary, evidence to support that was determined that they were discrete and King (supplemental data, 2006) there are discrete Atlantic sturgeon from the five U.S. Atlantic sturgeon because they were smaller than those populations includes temporal and population groupings. We did not considered to be mature adults. spatial separation during spawning and consider a listing determination for Nevertheless, the results were the same the results from genetic analyses. these populations given the lack of and demonstrated that each of the 12 Genetic samples for YOY and spawning information by which to determine sampled Atlantic sturgeon adults were not available for river whether the Canadian subpopulations subpopulations could be genetically populations originating from other represent one or more DPSs, and given differentiated from each other rivers in the northeast region. However, the regulatory controls on import and (Grunwald et al., 2008). nDNA from an expanded dataset that export of Atlantic sturgeon and their Genetic distances and statistical included juvenile Atlantic sturgeon was parts per the Convention on analyses (bootstrap values and used to produce a neighbor-joining tree International Trade in Endangered assignment test values) were also used with bootstrap values (ASSRT, 2007; Species of Wild Flora and Fauna to investigate significant relationships Figure 18). This dataset included (CITES). among, and differences between, additional samples from the Delaware Atlantic sturgeon subpopulations River and populations in the Significance (ASSRT, 2007, Table 6 and Figures 16– Northeast. Atlantic sturgeon river When the discreteness criterion is met 18). Overall, the genetic markers used in populations also grouped into five for a potential DPS, as it is for the GOM, this analysis resulted in an average population segments in this analysis NYB, and CB population segments in accuracy of 88 percent for determining (Delaware River population with the the Northeast identified above, the a sturgeon’s natal river origin, but an Hudson River population, and York second element that must be considered

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under the DPS policy is significance of taxon that may be more abundant population grouping is found in each DPS to the taxon as a whole. The elsewhere as an introduced population separate and distinct ecoregions that DPS policy examples of potential outside its historic range; or, (4) were identified by The Nature considerations indicating significance, evidence that the discrete population Conservancy (TNC) based on the including: (1) Persistence of the discrete segment differs markedly from other habitat, climate, geology, and population segment in an ecological populations of the species in its genetic physiographic differences for both setting unusual or unique for the taxon; characteristics. terrestrial and marine ecosystems (2) evidence that loss of the discrete We believe that the five discrete throughout the range of the Atlantic population segment would result in a Atlantic sturgeon population segments sturgeon along the Atlantic coast (Figure significant gap in the range of the taxon; persist in ecological settings unique for 1). (3) evidence that the DPS represents the the taxon. This is evidenced by the fact only surviving natural occurrence of a that spawning habitat of each BILLING CODE 3510–22–P

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N Ecoregions A M1 Carolinian M2 Virginian M3 Gulf of MainelBay of Fundy

n~rl·a.~tlri",t Ecoregions 1 South Atlantic Coastal Plain 2 Mid-Atlantic Coastal Plain 3 Chesapeake Bay Lowlands 4 North Atlantic Coast 5 Lower New EnglandlNorthern Piedmont 6 Northern Forest

Figure 1: Map ofTNC Marine and Terrestrial Ecoregions

TNC descriptions do not include where the waters originate. For that includes four glaciation events detailed information on the chemical example, riverine spawning/nursery (TNC, 2008). In contrast, riverine properties of the rivers within each habitat of the Kennebec River spawning/nursery habitat of Atlantic ecoregion, but include an analysis of subpopulation occurs within the sturgeon that originate from the Hudson bedrock and surficial geology type Northern Appalachian/Boreal Forest and Delaware Rivers occurs within the because it relates to water chemistry, ecoregion whose characteristically large Lower New England-Northern Piedmont hydrologic regime, and substrate. It is expanses of forest, variety of swamps, and North Atlantic Coast ecoregions well established that waters have marshes, bogs, ice scoured riverbanks, which are characterized by low different chemical properties (i.e., salt marshes, and rocky coastal cliffs mountains, abundant lakes, and identities) depending on the geology of were influenced by a geological history limestone valleys inland and generally

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flat, sandy coastal plains dissected by in the Southeast likewise occur in 2007). Therefore, the loss of any of the major tidal river systems near the coast separate and distinct ecoregions. discrete population segments would (Barbour, 2000; TNC, 2008). The Therefore, the ecoregion delineations result in a significant gap in the range Chesapeake Bay Lowlands ecoregion, support that the physical and chemical of Atlantic sturgeon, and negatively within which riverine spawning/ properties of the Atlantic sturgeon impact the species as a whole, given the nursery habitat for the James River spawning rivers are unique to each strong natal homing behavior of the population grouping of Atlantic population grouping. The five discrete species. U.S. Atlantic sturgeon population sturgeon occurs, presents yet a different In summary, the five Atlantic segments are ‘‘significant’’ as defined in landscape based on its geologic history. sturgeon discrete population segments As glaciers that extended as far south as the DPS policy, given that the spawning rivers for each population segment meet the significance criterion of the present day Pennsylvania began to melt, DPS policy because they each persist in streams and rivers that flowed toward occur in a unique ecological setting. Further, because each discrete a unique ecological setting, and the loss the coast were carved out of the population segment is genetically of any of these discrete population landscape (Pyzik et al., 2004). These distinct and reproduces in a unique segments would result in a significant past events are seen today in the ecological setting, the loss of any one of gap in the range of the taxon. As characteristic features of the Chesapeake the discrete population segments is described in the status review report, Bay Lowlands ecoregion which includes likely to create a significant gap in the the SRT concluded that these five a broad plain to the west of the Bay with range of the taxon. Atlantic sturgeon population segments of Atlantic generally low slopes and gentle drainage that originate from other discrete sturgeon within the United States dissected by a series of major rivers— population segments are not expected to (identified above) should be considered the Patuxent, Potomac, Rappahannock, re-colonize systems except perhaps over significant under the DPS policy York and James—as well as a complex a long time frame (e.g., greater than 100 guidelines. We, therefore, concur with and dynamic patchwork of barrier years), given that gene flow is low the SRT’s conclusion that five Atlantic islands, salt marshes, tidal flats and between the five discrete population sturgeon DPSs occur within the United large coastal bays along the Delmarva segments (Secor and Waldman, 1999) States. The five DPSs are hereafter Peninsula (TNC, 2002 in draft). Riverine and the geographic distances between referred to as: (1) GOM, (2) NYB, (3) CB, spawning/nursery habitat for the two spawning rivers of different population (4) Carolina, and (5) South Atlantic remaining Atlantic sturgeon groupings segments are relatively large (ASSRT, DPSs (Figure 2).

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Legend N _ Gulf of Maine A NY Bight _ Chesapeake Bay

Carolina So uth Atlantic _ U.S. Marine Range

Figure 2: U.S. Atlantic sturgeon DPSs showing rivers (up to the first dam where known) in

which the species are known to occur.

BILLING CODE 3510–22–C sturgeon DPSs in relation to the ESA’s Many of the activities causing harm to Current Status of the GOM, NYB, and standards for listing (see Analysis of Atlantic sturgeon have occurred for CB DPSs Factors, below). The ESA and its years, even decades. Similarly, some implementing regulations require listing conservation actions have been in place After completing the DPS analysis, we determinations to be based on the for years (e.g., prohibition on catch and next considered the current status of the current status of the species and the retention of Atlantic sturgeon). The past three DPSs that occur within the factors presently affecting the species or impacts of human activity on the GOM, Northeast Region’s jurisdiction, the GOM, NYB, and CB DPSs, as well as the likely to affect the species in the future. NYB, and CB DPSs cannot be factors affecting each of these Atlantic particularized in their entirety.

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However, to the extent they have in rivers (e.g., the ) where (DNREC) has been conducting surveys manifested themselves at the population they have not been observed for many for Atlantic sturgeon since 1991 level, such past impacts are subsumed years. (DNREC, 2009). Atlantic sturgeon are a in the information presented on their Delaware endangered species (state- New York Bight (NYB) DPS current status, recognizing that the listed). benefits to these Atlantic sturgeon DPSs The NYB DPS includes all Atlantic CB DPS as a result of conservation activities sturgeon whose range occurs in already implemented may not be watersheds that drain into coastal The CB DPS includes all Atlantic evident in the status and trend of the waters, including Long Island Sound, sturgeon whose range occurs in DPS for years, given the relatively late the New York Bight, and Delaware Bay, watersheds that drain into the age to maturity for Atlantic sturgeon and from Chatham, MA to the Delaware- Chesapeake Bay and into coastal waters depending on the age class(es) affected. Maryland border on Fenwick Island, as from the Delaware-Maryland border on well as wherever these fish occur in Fenwick Island to Cape Henry, VA, as Gulf of Mexico (GOM) DPS coastal bays, estuaries, and the marine well as wherever these fish occur in The GOM DPS includes all Atlantic environment from the , coastal bays, estuaries, and the marine sturgeon whose range occurs in Canada, to the Saint Johns River, FL. environment from the Bay of Fundy, watersheds from the Maine/Canadian Within this range, Atlantic sturgeon Canada, to the Saint Johns River, FL. border and extending southward to have been documented from the Hudson Within this range, Atlantic sturgeon include all associated watersheds and Delaware rivers as well as at the have been documented from the James, draining into the Gulf of Maine as far mouth of the Connecticut and Taunton York, Potomac, Rappahannock, south as Chatham, MA, as well as rivers, and throughout Long Island Pocomoke, Choptank, Little Choptank, wherever these fish occur in coastal Sound. There is evidence to support Patapsco, Nanticoke, Honga, and South bays, estuaries, and the marine that spawning occurs in the Hudson and rivers as well as the Susquehanna Flats. environment from the Bay of Fundy, Delaware Rivers. Evidence of Atlantic Historical evidence suggests that several Canada, to the Saint Johns River, FL. sturgeon spawning in the Connecticut of these, including the James, York, Within this range, Atlantic sturgeon and Taunton Rivers is not available. Potomac, Susquehanna, and have been documented from the However, Atlantic sturgeon continue to Rappahannock Rivers, were Atlantic following rivers: Penobscot, Kennebec, use these historical spawning rivers sturgeon spawning rivers. However, the Androscoggin, Sheepscot, Saco, (ASSRT, 2007). The majority of James River is currently the only known Piscataqua, and Merrimack. The historical spawning habitat is accessible spawning river for the CB DPS. Kennebec River is currently the only to the NYB DPS. Therefore, the Evidence of Atlantic sturgeon spawning known spawning river for the GOM availability of spawning habitat does not in other rivers of the CB DPS is not DPS. Evidence of Atlantic sturgeon appear to be the reason for lack of available, although spawning is spawning in other rivers of the GOM observed spawning in the Connecticut suspected to occur in the York based on DPS is not available. However, Atlantic and Taunton Rivers. However, whether genetics data and anecdotal reports. The sturgeon continue to use these historical Atlantic sturgeon spawning habitat in majority of historical Atlantic sturgeon spawning rivers and may represent these rivers is fully functional is spawning habitat is accessible, but it is additional spawning groups (ASSRT, difficult to quantify. unknown whether it is fully functional. 2007). The majority of historical Known threats to Atlantic sturgeon of Known threats to Atlantic sturgeon of Atlantic sturgeon spawning habitat is the NYB DPS include effects to riverine the CB DPS include effects to riverine accessible in all but the Merrimack habitat (e.g., dredging, water quality, habitat (e.g., dredging, water quality, River of the GOM DPS. Therefore, the and vessel strikes) as well as threats that vessel strikes) as well as threats that availability of spawning habitat does not occur throughout their marine range occur throughout their marine range appear to be the reason for the lack of (e.g., fisheries bycatch). The only (e.g., fisheries bycatch). There are no observed spawning in other GOM DPS abundance estimate for Atlantic current abundance estimates for the CB rivers. However, whether Atlantic sturgeon belonging to the NYB DPS is DPS. The Maryland Reward Program sturgeon spawning habitat in the GOM 870 spawning adults per year for the has resulted in the documentation of DPS is fully functional is difficult to Hudson River subpopulation, based on over 1,133 wild Atlantic sturgeon since quantify. data collected from 1985–1995 (Kahnle 1996. The Virginia Atlantic sturgeon Known threats to Atlantic sturgeon of et al., 2007). The accuracy of the reward program in the Chesapeake Bay the GOM DPS include effects to riverine estimate may be affected by bias in the documented and measured 295 Atlantic habitat (e.g., dredging, water quality) as reported harvest or estimated sturgeon in 1997 and 1998 (Spells, well as threats that occur throughout exploitation rate for that time period 2007). However, since sturgeon from their marine range (e.g., fisheries (Kahnle et al., 2007). Underreporting of multiple DPSs occur in the Chesapeake bycatch). There are no current harvest would have led to Bay, it is unlikely that all of the abundance estimates for the GOM DPS underestimates of stock size, while sturgeon captured in either reward of Atlantic sturgeon. The CPUE of underestimates of exploitation rates program originated from the CB DPS. subadult Atlantic sturgeon in a multi- would have resulted in overestimates of filament gillnet survey conducted on the stock size (Kahnle et al., 2007). In Analysis of Factors Affecting the Three Kennebec River was considerably addition, the current number of Northeast Region DPSs of Atlantic greater for the period of 1998–2000 spawning adults may be higher given Sturgeon (CPUE=7.43) compared to the CPUE for that the estimate is based on the time A species shall be listed if the the period 1977–1981 (CPUE = 0.30). period prior to the moratorium on Secretary of Commerce determines, on The CPUE of adult Atlantic sturgeon fishing for and retention of Atlantic the basis of the best scientific and showed a slight increase over the same sturgeon. commercial data available after time period (1977–1981 CPUE = 0.12 There is no abundance estimate for conducting a review of the species’ versus 1998–2000 CPUE = 0.21) the Delaware River subpopulation. status, that the species is in danger of (Squiers, 2004). There is also new Delaware’s Department of Natural extinction throughout all or a significant evidence of Atlantic sturgeon presence Resources and Environmental Control portion of its range (i.e., ‘‘endangered’’)

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or is likely to become an endangered equal to one generation (Scott and As previously described, within the species within the foreseeable future Crossman, 1973; Smith et al., 1982; GOM DPS, Atlantic sturgeon are known throughout all or a significant portion of Young et al., 1998). to spawn in the Kennebec River. The its range (i.e., ‘‘threatened’’) because of Penobscot, Sheepscot, Androscoggin, The Present or Threatened Destruction, any one or a combination of the and Merrimack Rivers are known to Modification, or Curtailment of the following factors: (1) The present or have supported spawning in the past Species’ Habitat or Range threatened destruction, modification, or (ASSRT, 2007). Atlantic sturgeon occur curtailment of its habitat or range; (2) The SRT identified barriers (i.e., in the Saco and Piscataqua Rivers, over utilization for commercial, dams, tidal turbines), dredging, and although there is no information on recreational, scientific, or educational water quality (e.g., dissolved oxygen historical or current spawning activity purposes; (3) disease or predation; (4) levels, water temperature, and for Atlantic sturgeon in these rivers the inadequacy of existing regulatory contaminants) as threats that affect (ASSRT, 2007; J. Sulikowski, UNE, pers. mechanisms; or (5) other natural or Atlantic sturgeon habitat or range. The comm., 2009). manmade factors affecting its continued SRT did not specifically consider global Historically, the upstream migration existence. climate change. Since completion of the of Atlantic sturgeon in the Kennebec The SRT took a multi-step approach SRT report, additional information has River was limited to Waterville, ME, for each DPS to answer whether there become available on the effects of global which is the location of Ticonic Falls were: (1) Sufficient data to conclude climate change in the Northeast and (river kilometer (rkm) 98) (NMFS and whether a DPS is threatened or Mid-Atlantic where habitat for the USFWS, 1998). The construction of endangered; (2) sufficient data to GOM, NYB, and CB DPSs occurs. Edwards Dam in 1837, downstream of conclude that a DPS was not threatened As noted in the status review report, the Ticonic Falls, denied Atlantic or endangered; or (3) insufficient data to dams for hydropower generation, flood sturgeon access to historical habitat in allow a full assessment of the control, and navigation have the the Kennebec River until 1999 when the populations within a DPS. The SRT potential to affect Atlantic sturgeon by dam was removed. Since its removal, identified the threats specific to Atlantic impeding access to spawning and access to 100 percent of historical sturgeon and then used a semi- foraging habitat, modifying free-flowing habitat has been restored. In the quantitative approach to assess the rivers to reservoirs, and altering , the Brunswick overall effect of those threats to each downstream flows and temperatures. Hydroelectric Dam is located at the DPS (ASSRT, 2007; Patrick and Damon- Turbines for power generation could, head-of-tide near the site of the natural Randall, 2008). similarly, impede access to spawning falls. The location of historical The ESA does not define what and foraging habitat but are also known spawning grounds on the Androscoggin timeframe corresponds with the phrase to injure and kill sturgeon as a result of is unknown, but it is unlikely that ‘‘within the foreseeable future’’ in its direct contact with the turbine blades. Atlantic sturgeon could navigate the definition of the term ‘‘threatened.’’ Environmental impacts of dredging natural falls located at Brunswick Dam Therefore, before beginning the analysis include direct removal or burial of (NMFS and USFWS, 1998). Therefore, of the Section 4(a)(1) factors, it was organisms, elevated turbidity or the dam is unlikely to have limited necessary for the SRT to define the siltation, contaminant resuspension, access of Atlantic sturgeon to their timeframe (Patrick and Damon-Randall, noise or disturbance, alterations to spawning habitat. Similarly, Atlantic 2008). Following the example of a past hydrodynamic regime and physical sturgeon upstream migration within the status review team (Acropora Biological habitat, and loss of riparian habitat is thought to have been Review Team, 2005), the Atlantic (Chytalo, 1996; Winger et al., 2000). historically limited to the lower river sturgeon SRT determined that the Water quality can be affected by many (rkm 32) just below the first dam on the appropriate period of time would: (1) activities such as industrial activities, river (rkm 35); therefore, 100 percent of Depend on the particular kinds of forestry, agriculture, land development the historical habitat (based on river threats; (2) consider the life history and urbanization that can result in kilometers) is available to Atlantic characteristics of the species; (3) discharges of pollutants, changes in sturgeon in the Sheepscot. consider specific habitat requirements water temperature and dissolved oxygen In contrast to the aforementioned for the species; and (4) allow for the levels, alteration of water flow, and the rivers, access to Atlantic sturgeon conservation and recovery of the species addition of nutrients or sediment from spawning habitat is impeded on the and the ecosystems upon which it erosion. Any of these can affect sturgeon . Historically, the falls at depends (ASSRT, 2007; Patrick and at various life stages depending on the Milford, rkm 71, were likely the first Damon-Randall, 2008). Based on these, extent of the threat and the life stage natural obstacle to Atlantic sturgeon the SRT agreed that 20 years would be affected. There is a large and growing migration on the Penobscot River (L. the appropriate timeframe for defining body of literature on past, present, and Flagg, MEDMR, pers. comm., 1998). In ‘‘the foreseeable future’’ for Atlantic future impacts of global climate change 1833, the Veazie Dam was constructed sturgeon (ASSRT, 2007; Patrick and induced by human activities— on the Penobscot River at rkm 56, Damon-Randall, 2008). The SRT also commonly referred to as ‘‘global blocking 21 percent of Atlantic sturgeon concluded that 20 years is an warming.’’ Some of the likely effects habitat. In 1875, the Treats Falls Bangor appropriate timeframe for determining commonly mentioned are sea level rise, Dam was built five kilometers the status of a species, as it was not too increased frequency of severe weather downstream of the Veazie, which also far into the future that qualitative events, and change in air and water impeded migration upstream (ASSRT, analysis would prove to be ineffective or temperatures. 2007). However, this dam was breached unreliable, it allowed sufficient time in 1977 (ASSRT, 2007). Therefore, 79 (10+ years) to determine the Dams percent of Atlantic sturgeon habitat is productivity of Atlantic sturgeon The SRT used GIS tools and dam currently accessible on the Penobscot subpopulations using standardized location data collected by Oakley (2005) (ASSRT, 2007). In 2008, the Penobscot protocols (Sweka et al., 2006), and it is to determine the number of miles of River Restoration Trust, a non-profit the approximate age of maturity for available habitat in rivers where corporation, exercised its option to Atlantic sturgeon or is approximately Atlantic sturgeon historically spawned. purchase the Veazie and two other dams

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on the Penobscot (ASSRT, 2007). In Atlantic sturgeon spawning and nursery 2006 an Atlantic sturgeon was taken in doing so, the Trust has the right to, in habitat. Nevertheless, the presence of the fish lift at the Holyoke Dam (R. part, decommission or remove the the dam means that only 42 percent of Murray, HG&E, pers. comm., 2006). Veazie Dam, thus reopening miles of historical Atlantic sturgeon habitat is Since the Enfield Dam has been habitat for Atlantic sturgeon and other currently available (ASSRT, 2007). breached, an additional 90 km of habitat diadromous species (ASSRT, 2007). Within the NYB DPS, there is are available, and depending on the However, funds for the removal need to evidence of Atlantic sturgeon spawning interpretation of historical spawning be generated and permits need to be in the Hudson and Delaware Rivers grounds, either 100 percent (Holyoke secured, and it remains uncertain (ASSRT, 2007). Historical records Dam, South Hadley, MA), or 86 percent whether all of the goals will be indicate that Atlantic sturgeon spawned (Hadley, MA) of historical Atlantic achieved. If Atlantic sturgeon were able in the Taunton River at least until the sturgeon habitat is available (ASSRT, to ascend the falls at Milford, they could turn of the century (ASSRT, 2007), and 2007). have migrated without obstruction to also occurred in the Connecticut River For the CB DPS, there is evidence that Mattaseunk (rkm 171) (ASSRT, 2007). (Judd, 1905; Murawski and Pacheco, Atlantic sturgeon currently spawn in the However, evidence is lacking to say 1977; Secor, 2002; ASSRT, 2007). By James River (ASSRT, 2007). The with certainty that Atlantic sturgeon 1898, the overall New England harvest observed presence of YOY and adult were able to ascend the falls at Milford. of Atlantic sturgeon was quite low, 36 sturgeon in the York River suggests that Information on Atlantic sturgeon use mt, and only occurred in Maine, spawning may still occur there (Musick of the Saco River in Maine became Massachusetts, and Connecticut (Secor, et al., 1994; K. Place, Commercial available after completion of the status 2002). There is no recent evidence Fisherman, pers. comm., 2006; ASSRT, review report. The last focused study of (within the last 15 years) to confirm that 2007). The Susquehanna, Potomac, the Saco River was almost 30 years ago, spawning currently occurs in either the Rappahannock, and Nanticoke Rivers and continued use of the river by Taunton or Connecticut Rivers (ASSRT, also supported Atlantic sturgeon Atlantic sturgeon was uncertain at the 2007). Atlantic sturgeon are present in spawning in the past, but there is no time of the status review report. both rivers, and likely represent conclusive evidence that spawning still However, Atlantic sturgeon have been sturgeon originating from other occurs in any of these rivers (ASSRT, captured during routine trawl sampling spawning rivers along the coast. 2007). Based on the review by Oakley, in the river during 2008 and 2009 as In general, Atlantic sturgeon access to 100 percent of Atlantic sturgeon habitat part of a 2-year monitoring project of the historical or spawning habitat believed is currently accessible in these rivers Saco River/Estuary. Tagging and to be historical is relatively unimpeded (ASSRT, 2007). Although dams are tracking of the captured fish has shown on all four of these NYB DPS rivers. The present, most are located upriver of that Atlantic sturgeon are making use of first impediment to migrating Atlantic where spawning is expected to have the river up to the Cataract Dam (J. sturgeon on the Hudson River is the historically occurred. For example, four Sulikowski, UNE, pers. comm., 2009), Federal Dam located at Troy, NY dams were constructed from 1904–1932 the first dam on the river at (ASSRT, 2007). This dam location is on the Susquehanna River, but none of approximately rkm 6 (Atlantic Salmon upstream of Catskill (rkm 204), which is these dams are suspected to have Commission, 1983). There are several the northern extent of Atlantic sturgeon impeded Atlantic sturgeon spawning dams on the Saco River known to have spawning and nursery habitat (Kahnle et habitat as the lowermost dam blocked fish passage for species such as al., 1998). Therefore, 100 percent of (Conowingo) is located above the Atlantic salmon, shad, and alewives Atlantic sturgeon habitat is still suspected historical spawning grounds (MEDMR, 1994). The effect of such available on the Hudson (ASSRT, 2007). (Steve Minkkinen, USFWS, pers. dams on the Atlantic sturgeon that Similarly, 100 percent of Atlantic comm., 2006). The Embrey Dam was currently use the river is unknown. sturgeon habitat is believed to be built in 1910 above the fall line of the Likewise, there are several dams on the accessible on the Delaware River where Rappahannock River and may have , and the effect of such 140 rkm of Atlantic sturgeon habitat are blocked the upstream migration of dams on the Atlantic sturgeon that available extending from Delaware Bay Atlantic sturgeon (ASSRT, 2007). This currently use the river is unknown. to the fall line at Trenton, NJ with no dam was breached in 2004 and 100 Within the GOM DPS, access to dams present (ASSRT, 2007). Historical percent of historical Atlantic sturgeon historical spawning habitat is most upstream migration of Atlantic sturgeon habitat is believed to be accessible severely impacted in the Merrimack in the Taunton River is unknown. (ASSRT, 2007). River (ASSRT, 2007). Hoover (1938) However, Atlantic sturgeon have access identified Amoskeag Falls (rkm 116) as to 89 percent of the river downstream of Dredging the historical limit for Atlantic sturgeon the Town River Pond Dam (ASSRT, Dredging and filling operations can in the Merrimack River. In the 1800s, 2007). Similarly, it is not clear how far impact important features of Atlantic construction of the Essex Dam in up the Connecticut River Atlantic sturgeon habitat because they disturb Lawrence, MA (rkm 49) blocked the sturgeon historically migrated. In all but benthic fauna, eliminate deep holes, and migration of Atlantic sturgeon to 58 low flow years, it is likely that Atlantic alter rock substrates necessary for percent of its historically available sturgeon could pass the Enfield Rapids spawning (Smith and Clugston, 1997). habitat (Oakley, 2003; ASSRT, 2007). prior to dam construction (Enfield Deposition of dredge sediment has been Tidal influence extends to rkm 35; Dam), which occurred in three stages shown to affect the distribution of however, in the summer months when between 1829 and 1881 (Judd, 1905). Atlantic sturgeon (Hatin et al., 2007). river discharge is lowest, the salt wedge The falls at South Hadley, MA, which Dredging can also result in direct takes extends upriver, resulting in is now the site of the Holyoke Dam, are (killing and injuring) of Atlantic approximately 19 km of tidal freshwater considered the upstream limit of sturgeon. Such takes have the potential and 9 km of freshwater habitat (Keiffer sturgeon in this system; however, there to affect the range of Atlantic sturgeon and Kynard, 1993). Based on a detailed is one historical record of an Atlantic if the takings contribute to the description by Keiffer and Kynard sturgeon sighted as far upstream as extirpation of a DPS. (1993), the accessible portions of the Hadley, MA (24 rkm upstream from Dickerson (2006) summarized Merrimack seem to be suitable for South Hadley) (ASSRT, 2007). Also, in observed takings of Gulf, shortnose, and

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Atlantic sturgeon from dredging terminal on the Delaware River near on commercial landings (Bushnoe et al., activities conducted by the Army Corps Logan, New Jersey (rkm 126). The 2005), the James River likely supported of Engineers (ACOE) in the United construction of the LNG terminal would the largest subpopulation in the States; overall 24 sturgeon (2 Gulf, 11 require the hydraulic dredging of 1.24 Chesapeake Bay in the 1800s. shortnose, and 11 Atlantic sturgeon) million m3 in the first year of Dredging continues to pose a threat to were observed during the years of 1990– construction followed by maintenance Atlantic sturgeon in the James River. 2005. Of the 24 sturgeon captured, 15 dredging of 67,000–97,000 m3/year. There are dredging projects underway to (62.5 percent) were reported as dead. Dredge spoil will be deposited in an deepen and widen the shipping The ASSRT calculated a minimum take upland disposal site, and dredging will terminal near Richmond on the James of 0.6 Atlantic sturgeon per year based be limited to the months of August River, and the river undergoes on hopper dredge takes since 1995 and through December. The dredging maintenance dredging on almost an given that dredging efforts were operations proposed for construction annual basis to allow commercial ocean- relatively similar among years (ACOE, and maintenance of the LNG terminal going vessels to reach the Richmond 2006). Both of these are considered would occur, in part, directly in terminal (C. Hager, VIMS, pers. comm., minimum estimates since observed suspected historical Atlantic sturgeon 2005; S. Powell, ACOE, pers. comm., takes of Atlantic sturgeon are spawning habitat (Fox, 2006; ASSRT, 2009). Since 1998, six new permits have documented incidental to observer 2007). However, construction of the been issued for dredging within the coverage of dredging activities for other, terminal has not yet begun, and it is James River, and an additional 24 already listed, ESA-species (e.g. uncertain whether it will proceed since maintenance projects have been shortnose sturgeon and sea turtles). approval from the State of Delaware has approved (L. Gillingham, VMRC, pers. Given that Atlantic sturgeon do not have not been secured (Examiner.com, 2009). comm., 2005). The Commonwealth of the same temporal and spatial Since completion of the SRT report, Virginia does impose a dredging distribution as these ESA-listed species, we have received information on the moratorium during the anadromous it is likely that Atlantic sturgeon takes Delaware River Main Channel spawning season (C. Hager, VIMS, pers. occur during unobserved dredging Deepening project, which calls for the comm., 2005). The ACOE has received operations. deepening of the existing channel from a waiver to dredge during this Dredging projects on the Kennebec 40 to 45 feet (12.2 to 13.7 meters) from moratorium in very limited River in the GOM DPS are known to Philadelphia Harbor, PA, to the mouth circumstances such as to conduct a have captured Atlantic sturgeon. of the Delaware Bay. This project will study to assess the effects of dredging on Dredging has also been proposed for the require dredging the channel with sturgeon (S. Powell and S. Cameron, Penobscot Harbor of the Penobscot River hydraulic and hopper dredges and ACOE, pers. comm., 2009). (ASSRT, 2007). Capture of Atlantic blasting approximately 77,000 cubic Turbines sturgeon is likely to occur if dredging yards (58,914 cubic meters) of rock near takes place at times when Atlantic Marcus Hook, PA. While the seasonal The placement of turbine structures to sturgeon are present in the area. NMFS restrictions imposed by the Delaware generate power in rivers used by can currently request, but cannot River Fish and Wildlife Management Atlantic sturgeon could, potentially, require, dredge operations to be Cooperative may help to reduce or damage or destroy bottom habitat. modified to minimize capture and prevent direct take of important resident However, the more likely effect of injury of Atlantic sturgeon. fish species (primarily the federally turbines is injury and death of Atlantic Within the NYB DPS, the commercial endangered shortnose sturgeon and sturgeon as a result of being struck by shipping channel of the Hudson River is other species of diadromous fishes), the turbine blades. Such takes have the maintained at a depth of 9.75 m (at there is still the potential for direct potential to affect the range of Atlantic mean low water) for nearly the entire impacts of this project on Atlantic sturgeon if the takings contribute to the length of the river to the Port of Albany. sturgeon as they may be found in the extirpation of a DPS. However, the section between project area throughout the year. There Seventeen hydrokinetic projects Haverstraw Bay and Catskill is the potential for indirect effects as proposed for both the GOM (9) and NYB (approximately rkm 122) is naturally well, such as changes in hydrology of (8) DPSs have received preliminary deep and does not require dredging (D. the river, which may affect possible permits from FERC, with many more Mann-Klager, FWS, pers. comm., 1998). spawning habitat (e.g., salt water projects being proposed. There are two The navigation channel in the intruding further into the river). The tidal power projects currently in Delaware River similarly undergoes location of spawning habitat for Atlantic operation along the range of Atlantic maintenance dredging from the mouth sturgeon in the Delaware River has not sturgeon. The Annapolis River (Nova of Delaware Bay to just north of been confirmed (ASSRT, 2007). Scotia, Canada) tidal power plant, built Trenton, NJ (ASSRT, 2007). Seasonal For Atlantic sturgeon belonging to the in 1982, was constructed as a restrictions on when this work can CB DPS, the most significant impacts to demonstration site for marine Straflo occur have been imposed by the spawning habitat likely occurred in turbines and consists of a rock-filled Delaware River Fish and Wildlife 1843 and 1854 in the James River when dam housing the turbine and sluice Management Cooperative to reduce granite outcropping consisting of large gates (M. Dadswell, Arcadia University, impacts from dredging on diadromous and small boulders was removed and pers. comm., 2006). The negative species (ASSRT, 2007). Nevertheless, the river was dredged to improve ship impacts of the Annapolis tidal turbine dredge gear used in the Delaware is navigation (Holton and Walsh, 1995; on Atlantic sturgeon (150–200 cm TL) known to injure or kill Atlantic sturgeon Bushnoe et al., 2005). Similarly, rock appear to be great, as the probability of (ASSRT, 2007). There are also new was removed from Drewry’s Island lethal strike from the turbine ranges proposed dredge activities in the Channel in 1878 to improve navigation between 40 and 80 percent (M. Delaware River. In 2006, Crown (Holton and Walsh, 1995). These granite Dadswell, Arcadia University, pers. Landing, LLC, was approved by the outcroppings and boulder matrices are comm., 2006; ASSRT, 2007), and at least Federal Energy Regulatory Commission the types of habitats that are believed to three severed, gravid females have been (FERC) to construct and operate a be ideal spawning habitats for Atlantic observed below the power plant liquefied natural gas (LNG) import sturgeon (Bushnoe et al., 2005). Based (Dadswell and Rulifson, 1994). In

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summer 2009, nine severed Atlantic point source pollution, and erosion. 2007; ASSRT, 2007). However, despite sturgeon carcasses were documented on Secor (1995) noted a correlation these water quality assessment results, beaches near the Annapolis project between low abundances of sturgeon sampling studies indicate that the (http:// during this century and decreasing shortnose sturgeon population in the annapolisroyalheritage.blogspot.com/ water quality caused by increased river has increased over the last decade. 2009/09/atlantic-sturgeon.html). nutrient loading and increased spatial Likewise, anecdotal information Although the cause of mortality could and temporal frequency of hypoxic indicates that more Atlantic sturgeon not be confirmed, the injuries are conditions. The SRT considered all of are using the mouth of the river now consistent with blade strikes from the this information as well as the second than in years past. tidal turbines. Since this power plant edition of the National Coastal Despite the persistence of occurs within the marine range of Condition Report (EPA, 2004), and contaminants in rivers and increasing Atlantic sturgeon that originate from the concluded that water quality posed a land development, many rivers and GOM, NYB, and CB DPSs, fish moderate to moderately low risk that the watersheds within the range of the GOM originating from these DPSs could also GOM, NYB, and CB DPSs were likely to DPS have demonstrated improvement in be struck and killed or injured. One become endangered within the water quality (EPA, 2008). In general, marine turbine project is underway foreseeable future. Since completion of the most recent (third edition) EPA within the United States in the East the SRT report, the EPA has released the Coastal Condition Report identified that River, New York (Angelo, 2005; Verdant third National Coastal Condition Report water quality was good to fair for waters Power webpage, 2009). Although no (EPA, 2008). That report is considered north of Cape Cod (EPA, 2008). impacts to wildlife have been reported, here to aid in assessing the level of Rivers and watersheds in the NYB the project is still in the early stages. threat water quality poses to the GOM, DPS have been similarly affected by Verdant Power recently completed NYB, and CB DPSs. industrialization, agriculture, and Phase 2 of the project, which involved Within the GOM DPS, water quality of urbanization that occurred since installation and operation of six full- its rivers and estuaries was severely European colonization. Water quality in scale turbines in an array at the project degraded as a result of many activities, the Taunton River has slightly improved site in the East River (Verdant Power including agricultural and forestry since 1970 (Taunton River Journal, webpage, 2009). Phase 3 of the project practices, industrialization, and land 2006; ASSRT, 2007). However, the river will entail placement of 30 turbines in development. As late as 1994, the still suffers from low dissolved oxygen the east branch of the river and Androscoggin River was still considered concentrations in the summer and high additional turbines in the west branch if one of the most polluted rivers in the ammonia-nitrogen levels (Taunton River the company is able to acquire a license United States (EWG, 2005; Lichter et al., Journal, 2006; ASSRT, 2007). Treated from FERC (Verdant Power webpage, 2006). However, water quality in the wastewater from several municipalities 2009). The energy company, Verdant Androscoggin River has been improving is added to the river daily, the majority Power, has plans to expand the project (Lichter et al., 2006). Likewise, the of which is produced from a single to up to 300 turbines to be located Penobscot River went through a period facility in one city (ASSRT, 2007). There within a 1-mile section of the river near of very poor water quality (Hatch, 1971; are currently no fish consumption Roosevelt Island (Angelo, 2005). Davies and Tsomides, 1999; advisories in effect for the Taunton Courtemanch et al., 2009). Pollutants River (ASSRT, 2007). Water Quality such as mercury and dioxin persist in Water quality on the Connecticut The Northeast Coast region, which the river, but dioxin levels in fish are River has improved dramatically in the includes the coastal waters and showing improvement with a drop from last 40 years (ASSRT, 2007). It is now watersheds of Connecticut, Delaware, 7.6 parts per trillion in 1984 to less than swimmable and fishable with some Maine, Maryland, Massachusetts, New 0.1 parts per trillion in 2004 (MEDEP, downstream exceptions (T. Savoy, Hampshire, New Jersey, New York, 2005). In addition, increasing numbers CTDEP, pers. comm., 2006). As a result Pennsylvania, Rhode Island, Vermont, of shortnose sturgeon are being found in of the operations of a manufactured gas and Virginia, is the most densely the river (G. Zydelwski, ME DMR, pers. plant that was located adjacent to the populated coastal region in the United comm., 2009). Shortnose sturgeon and river, there are large, discrete coal tar States (EPA, 2008). Therefore, it is not Atlantic sturgeon are believed to have deposits that occupy an estimated 32.5 surprising that water quality for the similar sensitivities to pollutants acres (13.16 hectares) below the GOM, NYB, and CB DPSs continues to (Dwyer et al., 2000). Therefore, Holyoke Dam. Coal tar leachate has been be an issue likely affecting Atlantic increasing numbers of shortnose suspected of impairing sturgeon sturgeon despite many positive actions sturgeon in the Penobscot River suggest reproductive success. Kocan et al. (e.g., implementation of the Clean Water that water quality in the river is also (1993, 1996) conducted a laboratory Act). Contaminants, including toxic suitable for supporting Atlantic study to investigate the survival of metals, polychlorinated aromatic sturgeon. shortnose sturgeon eggs and larvae hydrocarbons (PAHs), organophosphate In 2003, the Merrimack River was the exposed to PAHs, a by-product of coal and organochlorine pesticides, subject of a watershed assessment distillation. Only 5 percent of sturgeon polychlorinated biphenyls (PCBs), and conducted by the ACOE and embryos and larvae survived after 18 other chlorinated hydrocarbon municipalities along the river (ASSRT, days of exposure to Connecticut River compounds can have substantial 2007). The study noted that the lower coal tar (i.e., PAHs), demonstrating that deleterious effects on aquatic life. basin of the river was highly urbanized contaminated sediment is toxic to Effects from these elements and with high levels of point and non-point shortnose sturgeon embryos and larvae compounds on fish include production source pollution (USACOE, 2003; under laboratory exposure conditions. A of acute lesions, growth retardation, and ASSRT, 2007). The study also noted remediation project was initiated in reproductive impairment (Cooper, 1989; impaired dissolved oxygen levels and 2002 to begin removing some of the coal Sinderman, 1994). The coastal pH levels (ASSRT, 2007). The tar deposits from the river. Between environment is also impacted by coastal Merrimack River watershed in New 2002 and 2006, 11,714 cubic yards development and urbanization that Hampshire was identified as a mercury (8,962.5 cubic meters) of coal tar and result in storm water discharges, non- hot spot within the region (Evers et al., associated sediments were removed. In

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2006, information that was obtained status of shortnose sturgeon in the oxygen criteria for the Chesapeake Bay through the removal process and Delaware River appears to be improving would increase Atlantic sturgeon through diver surveys confirmed that and suggests that water quality has available habitat by 13 percent per year the extent of the deposits was much improved for Atlantic sturgeon that (Niklitschek and Secor, 2005). greater than initial estimates. Studies occur in the Delaware River as well. For In addition to water quality, one of are being conducted to determine if the example, a portion of the Roebling- the limiting habitat requirements for the weathered, hard tar that is present in Trenton stretch of the river is an EPA CB DPS of Atlantic sturgeon may be the much of the area is less toxic and Superfund site due to the presence of availability of clean, hard substrate for mobile than the soft tar and therefore, the Roebling Steel plant and attachment of demersal, adhesive eggs does not pose the same risk. According contamination associated with plant (Bushnoe et al., 2005; C. Hager, VIMS, to the Massachusetts Department of operations; the EPA has been pers. comm., 2005). In the Chesapeake Environmental Protection, a substantial considering ways to remove or cap the Bay watershed, 18th and 19th century number of borings were taken in 2008 contamination in the river caused by the agricultural clear cutting (Miller, 1986) to identify locations and depths of plant operations. contributed large sediment loads that submerged tar. The most recent (third edition) EPA presumably have buried or reduced Population expansion beginning in Coastal Condition Report identified that most sturgeon spawning habitats the early 1900s in the Hudson River water quality was fair overall for waters (reviewed in Bushnoe et al., 2005). valley increased sewage output to the south of Cape Cod through Delaware Despite these water quality and river, and sewage decomposition (EPA, 2008). However, sampled sites in sediment issues, Atlantic sturgeon that produced several areas of inadequate Massachusetts and Rhode Island were were stocked in the Bay had very high oxygen (oxygen blocks) in the river. Best generally scored as good while waters survival rates, suggesting that the documented was the oxygen block from Connecticut to Delaware received sturgeon are able to adjust to conditions present in the Albany pool, located fair and poor ratings (EPA, 2008). In in the Bay or move out of the Bay (e.g., north of the Atlantic sturgeon’s particular, the report noted that most of into the rivers draining into the Bay) spawning and nursery habitat (Kahnle et the Northeast Coast sites with poor where water quality is better. In al., 1998). Other oxygen blocks occurred water quality ratings were concentrated addition, Atlantic sturgeon that at certain times in the southern stretch in a few estuarine systems, including originate from other DPSs are often of the river from the Tappan Zee Bridge New York/New Jersey Harbor, some caught in the Bay and documented in south through New York Harbor tributaries of the Delaware Bay, and the the reward program; indicating that the (Brosnan and O’Shea, 1997; Kahnle et Delaware River (EPA, 2008). current water quality is not preventing al., 1998). Improvements to sewage With respect to the CB DPS, the fish from moving into, and foraging in, treatment eliminated the problem near period of Atlantic sturgeon population the Bay. decline and low abundance in the Albany by the late 1970s and near New Climate Change York City by the middle to late 1980s Chesapeake Bay corresponds to a period (Kahnle et al., 1998). PCB levels were of poor water quality caused by Although the impacts of global high throughout much of the river over increased nutrient loading and climate change are uncertain, the last several decades. In recent years, increased frequency of hypoxia (Officer researchers anticipate that the frequency PCB concentrations have declined to et al., 1984; Mackiernan, 1987; Kemp et and intensity of droughts and floods acceptable levels according to EPA al., 1992; Cooper and Brush, 1993). The will change across the nation (CBS, guidelines, but continual monitoring is Bay is especially vulnerable to the 2006). The latest report from the needed to document the fate of PCB effects of nutrients due to its large Intergovernmental Panel on Climate contamination in the river (Sloan et al., surface area to volume ratio, relatively Change (IPCC) predicts that higher 2005). The shortnose sturgeon low exchange rates, and strong vertical water temperatures and changes in population in the Hudson River has stratification during the spring and extreme weather events, including increased significantly (Bain et al., summer months (ASSRT, 2007). The floods and droughts, are projected to 2007) in the last several decades, EPAs Third Coastal Condition Report affect water quality and exacerbate suggesting that these improvements in identified the water quality for the many forms of water pollution, water quality have resulted in more Chesapeake Bay and immediate vicinity including sediments, nutrients, suitable habitat conditions for the (to the Virginia—North Carolina border) dissolved organic carbon, pathogens, species and, likely, better habitat as fair to poor (EPA, 2008). In particular, pesticides, and salt, as well as thermal conditions for Atlantic sturgeon in the the western and northern tributaries of pollution, with possible negative Hudson River as well. the Chesapeake Bay were rated as poor impacts on ecosystems, human health, Until recently, poor water quality has (EPA, 2008). The extensive watersheds and water system reliability and been a significant factor affecting fish of this historically unglaciated area operating costs. The resulting changes utilizing the upper tidal portion of the funnel nutrients, sediment, and organic in water quality (temperature, salinity, Delaware River estuary. As recent as the material into secluded, poorly flushed dissolved oxygen, contaminants, etc.) in early 1970s, dissolved oxygen levels estuaries that are more susceptible to rivers and coastal waters inhabited by between Wilmington and Philadelphia eutrophication (EPA, 2008). Atlantic sturgeon will likely affect those were routinely below levels that could Using a multivariable bioenergetics subpopulations. Effects are expected to support aquatic life from late spring to and survival model, Niklitschek and be more severe for those subpopulations early fall (ASSRT, 2007). Water quality Secor (2005) demonstrated that within that occur at the southern extreme of the has improved, however, to the extent the Chesapeake Bay, a combination of sturgeon’s range, and in areas that are that dissolved oxygen levels have not low dissolved oxygen, water already subject to poor water quality as dropped below the state’s minimum temperature, and salinity restricts a result of eutrophication. In a standards at any point during the year available Atlantic sturgeon habitat to simulation of the effects of water since 1990 (R. Green, Delaware DNREC, 0–35 percent of the Bay’s modeled temperature on available Atlantic pers. comm., 1998). As has been surface area during the summer. sturgeon habitat, Niklitschek and Secor observed in other rivers (e.g., Penobscot However, they further demonstrated (2005) found that a 1 °C increase of and Hudson Rivers), the biological that achieving the EPA’s new dissolved water temperature in the Chesapeake

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Bay would reduce available sturgeon are the subject of scientific research in (ASMFC TC, 2007). However, bycatch habitat by 65 percent. the wild and in hatcheries, and may be mortality was markedly different In summary, with the exception of the incidentally caught during research for between the two gear types. For sink Merrimack River, dams do not appear to other species such as shortnose sturgeon gillnet fisheries, the estimated annual limit Atlantic sturgeon access to or assessment of commercial fish stocks. mortality ranged from 352 to 1,286 spawning habitat. However, it should be The SRT (2007) reviewed recent and Atlantic sturgeon, with an average noted that accessibility does not equate ongoing research studies (from mortality of 649 sturgeon per year, or to functionality. Therefore, while approximately 1988 to 2006) for 13.8 percent of the annual Atlantic historical spawning habitat may still be Atlantic sturgeon in NMFS’ Northeast sturgeon bycatch in sink gillnet gear available, some of the habitat may no Region. Overall, hundreds of fish have (ASMFC TC, 2007). The total number of longer be suitable spawning habitat. In been captured and released and less Atlantic sturgeon killed in otter trawl particular, water quality, while showing than 10 mortalities have occurred gear could not be estimated because of signs of improvement, continues to rate (ASSRT, 2007). Scientific research of the low number of observed mortalities, only fair to poor in areas of the NYB ESA-listed species such as shortnose indicating a low mortality rate (ASMFC DPS and CB DPS. Dredging is known to sturgeon must comply with the permit TC, 2007). have removed structures in the James requirements of the ESA, including Approximately 15 to 19 percent of River that are typically associated with measures to minimize the likelihood of observed Atlantic sturgeon bycatch in Atlantic sturgeon spawning habitat. injury and death (e.g., short tow times sink gillnet and otter trawl gear in 2001 Nutrient loading and eutrophication of or soak times for collection gear, to 2006 occurred in coastal marine the Chesapeake Bay is expected to get handling protocols). These measures waters north of Chatham, MA (ASMFC worse with temperature changes and also minimize the likelihood of harm to TC, 2007). However, since Atlantic other effects associated with climate Atlantic sturgeon when they are also sturgeon of different DPSs mix in the change. The SRT concluded that, present. Trawl surveys to assess the marine environment, it is likely that cumulatively, dams, dredging, turbines, status of commercial fish stocks occur sturgeon other than those belonging to and water quality posed a moderate risk throughout the Northeast Region. The the GOM DPS were caught. Likewise, to the GOM, NYB, and CB DPSs. Of the surveys typically use short tow times sturgeon that originate from the GOM threats to habitat that were considered, that help to minimize mortality and DPS are at risk of capture in sink gillnet water quality was of greatest concern in injuries. Atlantic sturgeon have been and otter trawl gear throughout the terms of its contribution to the risk of caught during such research operations, marine range of the species. endangerment for each DPS, overall. but there have been no mortalities and In addition to fisheries occurring in Based on the information provided by all fish were released in good condition coastal waters, there are limited gill net fisheries for menhaden, alewives, the SRT as well as information on (i.e., no apparent injuries) (B. Kramer, blueback herring, sea herring, and climate change that was not considered NEFSC, pers. comm., 2006). by the SRT, and new information from mackerel in the estuarial complex of the the EPA on water quality, we concur While directed fisheries for Atlantic Kennebec and Androscoggin Rivers that water quality is the greatest of the sturgeon are prohibited in U.S. waters, (ASSRT, 2007). State regulations threats affecting the habitat or range of Atlantic sturgeon are incidentally prohibit the use of purse, drag, and stop the GOM, NYB, and CB DPSs. caught in other U.S. fisheries. The SRT seines, and gill nets with greater than reviewed information on the 87.5 mm stretched mesh (ASSRT, 2007). Overutilization for Commercial, commercial bycatch of Atlantic sturgeon Fixed or anchored nets must be tended Recreational, Scientific, or Educational in Northeast waters from: (a) Estimates continuously and hauled in and Purposes based on NMFS sea sampling/observer emptied every 2 hours (ASSRT, 2007). As previously described, there is no data (Stein et al., 2004); (b) data There has been no reported or observed directed commercial or recreational collected as part of Delaware’s tagging bycatch of Atlantic sturgeon in these fishery for Atlantic sturgeon in the U.S. studies (Shirey et al., 1997); and (c) fisheries. Although capture of Atlantic sturgeon recapture data reported in the USFWS Approximately 39 to 55 percent of on recreational fishing gear (e.g., rod Atlantic Coast Sturgeon Tagging observed Atlantic sturgeon bycatch in and reel) has occasionally occurred Database (Eyler et al., 2004). Additional, sink gillnet and otter trawl gear for 2001 (ASSRT, 2007; P. Linthicum, pers. new information on Atlantic sturgeon to 2006 occurred in coastal marine comm.), in general, recreational fishing bycatch in U.S. sink gillnet and otter waters south of Chatham, MA and north gear is not conducive to catching trawl fisheries has become available of the Delaware-Maryland border Atlantic sturgeon. since completion of the SRT report (ASMFC TC, 2007). As described above, Canadian fisheries for Atlantic (ASMFC TC, 2007). At the request of the since Atlantic sturgeon of different DPSs sturgeon occur in the Saint Lawrence ASMFC, NMFS’ Northeast Fisheries mix in the marine environment, it is and Saint John Rivers. Since Atlantic Science Center estimated the total likely that sturgeon other than those sturgeon of U.S. origin are not expected bycatch of Atlantic sturgeon in sink belonging to the NYB DPS were caught to occur in areas of the Saint Lawrence gillnet and otter trawl gear based on in this area. Genetic analyses of tissue and Saint John where the fisheries observer data collected on a portion of samples from captured fish have shown occur, the Canadian commercial fishery commercial fishing trips from Cape that approximately 12 percent of the for Atlantic sturgeon is unlikely to Hatteras, NC, through Maine for 2001– fish captured in the New York Bight did capture sturgeon of U.S. origin. 2006 (ASMFC TC, 2007). For sink not belong to the NYB DPS (T. King, The available information supports gillnet gear, Atlantic sturgeon bycatch unpublished, 2007). Likewise, sturgeon that the GOM, NYB, and CB DPSs are ranged between 2,752 and 7,904 that originate from the NYB DPS are at not overutilized as a result of sturgeon annually, averaging about risk of capture in sink gillnet and otter educational or scientific purposes. 5,000 sturgeon per year (ASMFC TC, trawl gear throughout the marine range There is no known use of Atlantic 2007). Atlantic sturgeon bycatch in otter of the species. Genetic analyses of sturgeon for educational purposes other trawl gear similarly ranged between samples from Atlantic sturgeon caught than, possibly, limited display in 2,167 and 7,210 sturgeon with an in Mid-Atlantic sink gillnet gear commercial aquaria. Atlantic sturgeon average of about 3,800 fish per year revealed that the majority of fish

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originated from the Hudson River Atlantic sturgeon were found (Virginia Fisheries known to incidentally catch (Waldman et al., 1996a; Secor, 2007). Marine Police and Virginia Marine Atlantic sturgeon occur throughout the Within the riverine range of the NYB Resources Commission, pers. comm.). marine range of the species and in some DPS, the use of gillnet gear in the The spiny dogfish fishery is managed riverine waters as well. Therefore, adult Taunton River, MA, is restricted to nets under a Federal FMP as well as an and subadult age classes of each DPS are of no more than 100 feet in length (2.54 ASMFC interstate FMP. However, at risk of injury or death resulting from m) and nets must be tended at all times access to the fishery is not limited, and entanglement and/or capture in fishing (ASSRT, 2007). No overnight sets are directed effort in the fishery is expected gear wherever they occur. allowed (K. Creighton, MA FEW, 2006; to increase as stock rebuilding Disease or Predation ASSRT, 2007). Connecticut imposed a objectives are met (ASMFC, 2009). A commercial harvest moratorium for monkfish fishery using large mesh Very little is known about natural Atlantic sturgeon in 1997 (ASSRT, gillnet gear also occurs in Federal predators of Atlantic sturgeon. The 2007). However, bycatch is known to waters off Virginia as well as other Mid- presence of bony scutes is likely an take place in the commercial shad Atlantic and New England states. effective adaptation for minimizing fishery that operates in the lower Atlantic sturgeon entanglements in gear predation of sturgeon greater than 25 Connecticut River from April to June in used in the monkfish fishery have been mm TL (Gadomski and Parsley, 2005; large mesh (14 cm minimum stretched observed in Mid-Atlantic and New ASSRT, 2007). Documented predators of mesh) gill nets (ASSRT, 2007). England waters (ASMFC, 2007). sturgeon species (Acipenser sp.), in Likewise, New York implemented a In addition to fisheries occurring in general, include sea lampreys, gar, harvest moratorium for Atlantic marine waters, numerous fisheries striped bass, common carp, northern sturgeon in 1996, but Atlantic sturgeon operate throughout the Chesapeake Bay pikeminnow, channel catfish, bycatch occurs in a shad gill net fishery (ASSRT, 2007). Juvenile and subadult smallmouth bass, walleye, fallfish, grey on the Hudson River (ASSRT, 2007). Atlantic sturgeon are routinely taken as seal, and sea lion (Scott and Crossman, However, New York State Department of bycatch throughout the Chesapeake Bay 1973; Dadswell et al., 1984; Miller and Environmental Conservation (NY DEC) in a variety of fishing gears (ASSRT, Beckman, 1996; Kynard and Horgan, recently proposed to close all American 2007). The mortality of Atlantic 2002; Gadomski and Parsley, 2005; shad fisheries in the Hudson River due sturgeon bycatch in most of these Fernandes, 2006; Wurfel and Norman, to poor stock condition. Regulations to fisheries is unknown, although low rates 2006). Seal predation on shortnose close the fisheries for shad are expected of bycatch mortality were reported for sturgeon in the Penobscot River has to be implemented by spring of 2010, the striped bass gill net fishery and the been documented (Fernandes, 2008). and would effectively eliminate bycatch shad fishery within the Bay (Hager, Seven shortnose sturgeon carcasses of Atlantic sturgeon (K. Hattala, NY 2006). Of the hundreds of sturgeon held found in the Kennebec River in August DEC, pers. comm., 2009). for examination in the Maryland and 2009 also bore wounds consistent with Several fisheries using gillnet gear Virginia reward programs, only a few seal predation (A. Lictenwalner, UME, occur in the Delaware Bay, including fish were determined to be in poor pers. comm., 2009). Although seal the striped bass, shad, white perch, physical condition, although it is predation of Atlantic sturgeon has not Atlantic menhaden, and weakfish important to note that the program was been documented, Atlantic sturgeon fisheries (ASSRT, 2007). The majority of designed to examine live specimens for that are of comparable size to shortnose these operate in March and April; the reward to be granted (J. Skjeveland (e.g., subadult Atlantic sturgeon) may bycatch mortality of Atlantic sturgeon and A. Spells, FWS, pers. comm., 1998). also be susceptible to seal predation. during this period is typically low (C. In summary, overutilization of The presence of introduced flathead Shirey, DNREC, pers. comm., 2005). For Atlantic sturgeon for commercial catfish has been confirmed in the example, of the estimated 85 to 99 purposes was likely the primary factor Delaware and Susquehanna River Atlantic sturgeon incidentally captured in the historical decline of the GOM, systems of the NYB and CB DPSs, in the Delaware Bay anchored gillnet NYB, and CB DPSs. A moratorium on respectively (Horwitz et al., 2004; fisheries for 2002 through 2003, none of the possession and retention of Atlantic Brown et al., 2005). However, there are the captures resulted in mortality sturgeon for the past 10 years has no indications that the presence of (ASMFC Atlantic Sturgeon Plan Review effectively terminated any directed flathead catfish in the Cape Fear River, Team Report, 2004, 2005). harvest of Atlantic sturgeon. However, NC, and Altamaha River, GA (where With respect to the CB DPS, the bycatch in Federal and state regulated flatheads have been present for many NEFSC analysis indicated that coastal fisheries continues to occur. Atlantic years) is negatively impacting Atlantic waters south of the Chesapeake Bay to sturgeon populations can withstand sturgeon in those rivers (ASSRT, 2007). Cape Hatteras, NC, had the second only low rates of anthropogenic (e.g., Disease organisms commonly occur highest number of observed Atlantic fishing, bycatch) mortality (ASMFC TC, among wild fish populations, but under sturgeon captures in sink gillnet gear for 2007). Kahnle et al. (2007) estimated favorable environmental conditions, 2001–2006 (ASMFC TC, 2007). While it that sustainable fishing rates on adult these organisms are not expected to is likely that the captured sturgeon Atlantic sturgeon are 5 percent per year, cause population-threatening originated from more than one DPS and sustainable fishing rates for sub- epidemics. There are no known diseases (Waldman et al., 1996a; Secor, 2007), adults are lower still (Boreman, 1997; currently affecting any of the Atlantic the data suggest that fisheries resulting ASMFC, 1998). Thus, the ASMFC TC sturgeon DPSs. A die-off of sturgeon, 13 in high levels of Atlantic sturgeon (2007) concluded that even small rates shortnose and two Atlantic sturgeon, bycatch occur in close proximity to of bycatch mortality (<5 percent) on was reported for Sagadahoc Bay, ME, in waters used by sturgeon belonging to sturgeon subpopulations could retard or July 2009, at the same time as a red tide the CB DPS. Interviews with local curtail recovery. The best available event for the region. The dinoflagellate fishermen in 2007 indicated that a information supports that bycatch of associated with the red tide event, gillnet fishery for dogfish was known to Atlantic sturgeon in Federal and state Alexandrium fundyense, is known to incidentally catch sturgeon, and that regulated fisheries acts as a significant produce saxitoxin, which can cause fishery occurred off Chincoteague threat on the GOM, NYB, and CB DPSs paralytic shellfish poisoning when Island, VA, where more than 30 dead because it results in direct mortality. consumed in sufficient quantity.

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Stomach content analysis from the support an increased risk that the GOM for menhaden, alewives, blueback necropsied sturgeon revealed saxitoxin DPS of Atlantic sturgeon is likely to herring, sea herring, and mackerel in the levels of several hundred nanograms per become endangered within the estuarial complex of the Kennebec and gram (S. Fire, NOAA, pers. comm., foreseeable future as a result of disease Androscoggin Rivers (ASSRT, 2007). 2009). However, saxitoxin cannot be or predation. However, the level of observer coverage confirmed as the cause of death of the or reporting effort is unknown. Inadequacy of Existing Regulatory sturgeon, given the lack of information Atlantic sturgeon are also known to be Mechanisms on saxitoxin presence in sturgeon taken as bycatch in the Connecticut and tissues. As a wide-ranging anadromous Hudson River shad fisheries (ASSRT, There is concern that non-indigenous species, Atlantic sturgeon are subject to 2007). Current Connecticut regulations sturgeon pathogens could be introduced numerous Federal (U.S. and Canadian), appear to be inadequate for addressing to wild Atlantic sturgeon, most likely state and provincial, and inter- this bycatch. In New York, however, the through aquaculture operations. Fungal jurisdictional laws, regulations, and NY DEC closed all shad fisheries in the infections and various types of bacteria agency activities. These regulatory Hudson River effective March 17, 2010 have been noted to have various effects mechanisms are described in detail in (NY DEC press release, March 17, 2010), on hatchery Atlantic sturgeon. Due to the status review report (see Section thus, eliminating Atlantic sturgeon the threat of impacts to wild 3.4), and those that impact Atlantic bycatch associated with shad fisheries. populations, the ASMFC recommends sturgeon the most are highlighted here. Gillnet fisheries for numerous fish requiring any sturgeon aquaculture Current regulatory mechanisms have species occur in the Chesapeake Bay. operation to be certified as disease-free, effectively removed threats from legal, Low rates of sturgeon bycatch mortality thereby reducing the risk of the spread directed harvest in the United States. As were reported for the striped bass gill of disease from hatchery origin fish. The previously described, the ASMFC net fishery and the shad staked gill net aquarium industry is another possible manages Atlantic sturgeon through an fishery (Hager, 2006; ASSRT, 2007), source for transfer of non-indigenous interstate fisheries management plan although estimates of bycatch in these pathogens or non-indigenous species that was developed in 1990 (Taub, fisheries as well as other fisheries in the from one geographic area to another, 1990). The moratorium prohibiting Bay are not available. Since completion primarily through release of aquaria fish directed catch of Atlantic sturgeon was of the status review report, Virginia has into public waters. With millions of developed as Amendment 1 to the FMP. closed the directed fishery for American aquaria fish sold to individuals The Atlantic Coastal Fisheries shad to allow rebuilding of the stock. annually, it is unlikely that such activity Cooperative Management Act Virginia also has various time and gear could ever be effectively regulated. (ACFCMA), authorized under the terms restrictions for the use of gillnet gear in Definitive evidence that aquaria fish of the ASMFC Compact, as amended its tidal waters, including prohibitions could be blamed for transmitting a non- (Pub. L. 103–206), provides the on the use of staked or anchored gillnet indigenous pathogen to wild fish Secretary of Commerce with the gear in portions of the James and (sturgeon) populations would be very authority to implement regulations in Rappannock Rivers from April 1 difficult to collect (J. Coll and J. the EEZ, in the absence of an approved through May 31 (VA MRC Summary of Thoesen, USFWS, pers. comm., 1998). Magnuson-Stevens FMP, that are Regulations, 2009), that are likely to Disease and predation are not compatible to ASMFC FMPs. It was benefit Atlantic sturgeon by reducing presently significant threats on the under this authority that, in 1999, the likelihood of sturgeon bycatch. GOM, NYB, or CB DPSs. While there is NMFS implemented regulations that Similarly, regulations implemented by new evidence of seal predation on prohibit the retention and landing of NMFS (69 FR 24997, May 5, 2004; 71 FR shortnose sturgeon in the Penobscot and Atlantic sturgeon bycatch from federally 36024, June 23, 2006) to reduce sea Kennebec Rivers of the GOM DPS regulated fisheries. NMFS has discretion turtle interactions with pound net gear (Fernandes, 2008; A. Lictenwalner, over the management of federally in the Bay and portions of the UME, pers. comm., 2009), the number of regulated fisheries and is required to surrounding rivers (e.g., James, York, mortalities is believed to be low and address bycatch for each federally and Rappahannock Rivers) likely reduce thus, this is a localized threat affecting regulated fishery. Therefore, while there the chance that Atlantic sturgeon will be a small number of fish. Likewise, we are currently no fishery specific caught in the gear. would expect that any seal predation of regulations in place that address Due to existing state and Federal laws, Atlantic sturgeon, if it is occurring, Atlantic sturgeon bycatch, NMFS has water quality and other habitat would also be low, given that Atlantic the authority and discretion to conditions have improved in many sturgeon spend less time in the rivers/ implement such measures, and has rivers (EPA, 2008). As described above, estuaries relative to shortnose sturgeon. previously used its authority to dredging is a threat for the GOM, NYB, There is also new evidence of the implement measures to reduce bycatch and CB DPSs of Atlantic sturgeon. presence of saxitoxin in sturgeon of protected species in federally- Currently, there are no specific tissues. However, saxitoxin presence regulated fisheries. regulations requiring action(s) to reduce cannot yet be associated as a cause of Some fisheries that occur within state effects of dredging on Atlantic sturgeon. injury or mortality for shortnose or waters are also known or suspected of However, NMFS has the authority and Atlantic sturgeon. taking Atlantic sturgeon as bycatch. discretion to implement such measures Overall, the SRT concluded that there Maine’s regulations prohibit the use of or require modification of dredging was a ‘‘low risk’’ that the GOM, NYB, or purse, drag, and stop seines, and gill activities if Atlantic sturgeon are listed CB DPS was likely to become nets with greater than 87.5 mm under the ESA. endangered within the foreseeable stretched mesh (ASSRT, 2007). Fixed or In summary, State and Federal future as a result of disease or predation. anchored nets have to be tended agencies are actively employing a Although there is some new information continuously and hauled in and variety of legal authorities to implement regarding disease and predation of emptied every 2 hours (ASSRT, 2007). proactive restoration activities for shortnose sturgeon for waters within the As described above, there has been no Atlantic sturgeon, and coordination of range of the GOM DPS of Atlantic reported or observed bycatch of Atlantic these efforts is being furnished through sturgeon, the new information does not sturgeon in the limited gill net fisheries the ASMFC. Most states within the

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riverine and estuarine range of the potential to cause mortality. To date, racks are inspected daily for debris load GOM, NYB, and CB DPSs of Atlantic there have been no known Atlantic and cleaned as necessary. From 1978 to sturgeon have regulations for their sturgeon mortalities as a result of 2007, 18 shortnose sturgeon were inshore gillnet fisheries that reduce the effluent discharge of heated water. collected at the cooling water system likelihood of Atlantic sturgeon bycatch Two surveys have been conducted intake. These fish were all juveniles mortality in the nets. NMFS has the that provide information on the impacts greater than 400 mm TL. While authority and discretion to implement of water withdrawal on Atlantic shortnose sturgeon have been observed measures necessary to reduce bycatch of sturgeon originating from the NYB DPS: at the intakes at the Station, no Atlantic Atlantic sturgeon in federally regulated (1) Hudson River Utility Surveys, and sturgeon have been observed. fisheries, and we expect that such (2) Delaware River Salem Power Plant Vessel strikes of Atlantic sturgeon measures would yield significant survey. The Hudson River has six power have been documented in particular benefits for Atlantic sturgeon. However, plants located between rkm 34–74, areas. Atlantic sturgeon that occur in NMFS has not implemented any which overlap with known nursery locations that support large ports and bycatch reduction measures specifically grounds for Atlantic sturgeon larvae and have relatively narrow waterways seem for Atlantic sturgeon, and existing early juveniles located at rkm 43–100. to be more prone to vessel strikes (e.g., bycatch reduction measures are Of the six power plants located in this Delaware and James Rivers). Twenty- inadequate for reducing bycatch of area, the Danskammer, Roseton, Lovett, nine mortalities believed to be the result Atlantic sturgeon in federally regulated and Indian Point pose the greatest risk of vessel strikes were documented in the fisheries. NMFS also has the authority to Atlantic sturgeon, as the Bowline Delaware River from 2004 to 2008 and discretion to require measures to Point power plant is located farther (Kahnle et al., 2005; Murphy, 2006). At reduce the effects of in-water projects downriver and withdraws water from a least 13 of these fish were large adults. (e.g., dredging, tidal turbine projects) on collection pond. Intensive surveys (24 Given the time of year in which the fish ESA-listed species. Such measures hr/day, 4 to 7 days/week, and 10–12 were observed (predominantly May afford some benefit to Atlantic sturgeon weeks/year during the spring) through July, with two in August), it is at times and in areas where the ESA- conducted from 1972–1998 examining likely that many of the adults were listed species is also present. However, entrainment and impingement of fish migrating through the river to the currently, NMFS does not have the species reported only 8 entrained spawning grounds. Based on the authority or discretion to require action sturgeon (larvae) and 63 impinged external injuries observed, it is to reduce the effects of in-water projects shortnose sturgeon (majority 200–700 suspected that these strikes are from specifically for Atlantic sturgeon. mm) (Applied Science Associates, ocean going vessels and not smaller Therefore, Atlantic sturgeon are 1999). Entrained sturgeon were boats, although at least one boater afforded no protection from the effects documented only at the Danskammer reported hitting a large sturgeon with of in-water projects if an ESA-listed Point Plant where four shortnose larvae his small craft (C. Shirey, DNREC, pers. species is not present. There are no and four unidentified sturgeon yolk sac comm., 2005). Recreational vessels are measures to reduce or minimize vessel larvae were observed during the spring known to have struck and killed strikes (discussed in Other Natural or in 1983 and 1984. Impingement of shortnose sturgeon in the Kennebec Manmade Factors Affecting the Species’ sturgeon occurred most often at the River (G. Wipplehauser, ME DMR, pers. Continued Existence section below) of Danskammer Point Plant, averaging 4.2– comm., 2009). Therefore, it is likely that Atlantic sturgeon, and we currently 5.2 impinged fish per year, followed by Atlantic sturgeon can also suffer mortal have limited authority and discretion by Indian Point (1.5–2.3 fish/year), Roseton injuries when struck by recreational which to regulate vessel activities in (1.5–1.8 fish/year), Bowline Point (0–0.9 vessels. areas where Atlantic sturgeon occur. fish/year) and Lovett Point (0 fish per In the James River, 11 Atlantic year). During the period of 1989 to 1996, sturgeon were reported to have been Other Natural or Manmade Factors five shortnose sturgeon were impinged struck by vessels from 2005 through Affecting the Species Continued (0.6/year) from the Roseton and 2007 (A. Spells, FWS, pers. comm., Existence Danskammer plants. However, since 2007). Of the six mortalities, two were The SRT considered several manmade 2000 when operational and physical mature males (approximate lengths of factors that may affect Atlantic sturgeon, changes were made at these two plants, 154–185 cm fork length (FL)); the other including impingement and no impinged Atlantic or shortnose four carcasses were in an advanced state entrainment, vessel strikes, and artificial sturgeon have been observed. Bowline of decay and could not be sexed. propagation. Along the range of Atlantic Point and Lovett reported zero However, each of the four was at least sturgeon, most, if not all, impingements during this period. as large as the two mature males with subpopulations are at risk of possible Sampling did not occur at Indian Point one about 215 cm long and another entrainment or impingement in water after 1990 (Shortnose Sturgeon Status appearing to have been much larger withdrawal intakes for commercial uses, Review, in draft). (only a section of the larger fish was municipal water supply facilities, and The Salem Nuclear Generating Station retrieved as it had been severed more agricultural irrigation intakes. Based on located on the Delaware River also has than once). The propeller marks present the behavior of captive larval Atlantic the potential to take sturgeon species via on the six fish examined indicated that sturgeon (Kynard and Horgan, 2002), impingement or entrainment. The trash the wounds were inflicted by both large Atlantic sturgeon larvae may be able to racks at the Station are required to be and small vessels (A. Spells, FWS, pers. avoid intake structures in most cases, inspected every 2 hours from June 1 comm., 2007). One fish exceeding 154 since migration is active and occurs through October 15. The racks are cm in length had been cut completely in near the bottom. Effluence from power cleaned three times per week from May two. Other sources suggest an even plant facilities also has the potential to 1 to May 31 and October 16 through higher rate of interaction with at least 16 affect the Atlantic sturgeon DPSs. The November 15, and are required to be Atlantic sturgeon mortalities reported release of heated water can benefit cleaned daily from June 1 to October 15. for a short reach of the James River sturgeon by providing a thermal refuge Observations are made specifically for during 2007–2008 (Balazik, during the winter months, but drastic sturgeon species during this time. unpublished, in Richardson et al., changes in water temperature have the During the remaining months, the trash 2009).

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Artificial propagation of Atlantic provided by ASMFC (2006). banning possession of bycatch, sturgeon for use in restoration of Approximately 50 fish are currently eliminating any incentive to retain extirpated subpopulations or recovery of maintained in the captive brood Atlantic sturgeon. However, bycatch is severely depleted wild subpopulations population. known to occur in several fisheries has the potential to be both a threat to In summary, vessel strikes are a (ASMFC TC, 2007), and it is widely the species and a tool for recovery. In significant threat affecting the NYB and accepted that bycatch is underreported 1991, the FWS Northeast Fisheries CB DPSs. Currently, no state or Federal (PECE Implementation criterion 5). With Center (NEFC) in Lamar, Pennsylvania regulations exist to reduce or minimize respect to its effectiveness, contrary to began a program to capture, transport, the likelihood of vessel strikes for information available in 1998 when the spawn, and culture Atlantic sturgeon. Atlantic sturgeon. Artificial propagation Amendment was approved, Atlantic This program was in response to and impingement/entrainment of sturgeon bycatch mortality is a primary recommendations by the ASMFC in the Atlantic sturgeon have a low impact on threat affecting the recovery of Atlantic Atlantic Sturgeon FMP (Taub, 1990) and the GOM, NYB, and CB DPSs and are, sturgeon, despite actions taken by the Special Report No. 22: Recommendation therefore, minor threats to each of the states and NMFS to prohibit directed Concerning the Culture and Stocking of three DPSs. fishing and retention of Atlantic Atlantic Sturgeon (ASMFC, 1992). The Current Protective Efforts sturgeon. Therefore, there is first successful spawn at NEFC was considerable uncertainty that the achieved in 1993 using ripe Hudson Current conservation efforts Atlantic Sturgeon FMP will be effective River broodstock captured by underway to protect and recover in meeting its conservation goals (PECE commercial fishermen. Approximately Atlantic sturgeon must be evaluated Effectiveness criterion 1). In addition, 175 individuals from that year class and according to the Policy for Evaluation of there are limited resources for assessing Conservation Efforts (PECE) and others are currently being maintained at current abundance of spawning females pursuant to section 4(b)(1)(A) of the NEFC for use in a future broodstock. for each of the DPSs. Therefore, PECE ESA. The PECE is designed to guide Subsequent propagation attempts in effectiveness criterion 5 is not being determinations on whether any 1994, 1995, 1996, and 1998 were also met. conservation efforts that have been successful with as many as 160,000 fry For the reasons provided above, there recently adopted or implemented, but being hatched in one year. The work at is no certainty of implementation and not yet proven to be successful, will Lamar resulted in the publication of the effectiveness of the intended ASMFC result in recovering the species to the Culture Manual for the Atlantic FMP conservation effort for the GOM, point at which listing is not warranted sturgeon (Mohler, 2004). Since NEFC’s NYB, or CB DPSs of Atlantic sturgeon. or contribute to forming a basis for first successful spawning in 1993, many listing a species as threatened rather Multi-State Conservation Program requests have been made for excess than endangered (68 FR 15101; March Three states, Maine, New Hampshire, progeny both inside and outside of the 28, 2003). The purpose of PECE is to and Massachusetts, have applied for and Department of the Interior. These ensure consistent and adequate have received funding under a new requests were filled only under the evaluation of future or recently Proactive Species Conservation Program condition that a study plan be submitted implemented conservation efforts grant. The project, entitled ‘‘Multi-State to NEFC for review by the Center identified in conservation agreements, Collaborative to Develop and Implement Director and biologists. Study plans conservation plans, management plans, a Conservation Program for Three were required to include provisions that and similar documents when making Anadromous Fish Species of Concern in escapement of cultured sturgeon into listing decisions. The policy is expected the Gulf of Maine,’’ includes proposed the wild would be prevented except to facilitate the development by states research on Atlantic sturgeon within the where experimental stockings were and other entities of conservation efforts Kennebec River. Specifically, project conducted consistent with Federal and that sufficiently improve a species’ participants will: (1) Use acoustic state regulations, and they should status so as to make listing the species biotelemetry (deploy acoustic arrays) to include a rigorous evaluation as threatened or endangered identify essential Atlantic sturgeon component. Accordingly, over 29,000 unnecessary. habitat in the Kennebec River/ artificially propagated juvenile sturgeon The PECE established two basic Androscoggin River complex; (2) have been shipped to 20 different criteria: (1) The certainty that the conduct a mark-and-recapture study organizations including Federal and conservation efforts will be using PIT tags to estimate subpopulation state agencies, universities, public implemented and, (2) the certainty that size and external Carlin tags to aquaria, and independent researchers. the efforts will be effective. Satisfaction investigate movements beyond the In 1996, the Maryland Department of of the criteria for implementation and estuary; (3) investigate non-traditional Natural Resources (MD DNR), FWS, and effectiveness establishes a given population estimation methods because the University of Maryland-Chesapeake protective effort as a candidate for of spawning periodicity of adult Biological Laboratory stocked the consideration, but does not mean that sturgeon; and, (4) obtain tissue samples Nanticoke River with 3,300 hatchery- an effort will ultimately change the risk for sturgeon to conduct genetic analysis origin juveniles that were obtained from assessment for the species. Overall, the and determine stock structure. the NEFC. The stocked fish PECE analysis ascertains whether the The Atlantic sturgeon research demonstrated good growth and formalized conservation effort improves component of the Multi-State survivability with a 14 percent the status of the species at the time a Conservation Program is expected to recapture rate over several years (MD listing determination is made. provide new information on the GOM DNR, 2007). MD DNR then began to rear The SRT analyzed several DPS of Atlantic sturgeon that could sturgeon with the intention of conservation efforts potentially affecting inform management decisions for future developing a captive spawning Atlantic sturgeon throughout its range. conservation efforts. However, the population for use in restoring The 1998 Amendment to the ASMFC program, including the proposed subpopulations in Maryland. The MD Atlantic Sturgeon FMP strengthens research for Atlantic sturgeon, does not DNR program has been developed using conservation efforts by formalizing the specifically describe the threats to the the culture and stocking guidance closure of the directed fishery, and by Atlantic sturgeon subpopulations in

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question, and does not address how high level of certainty that this project developing an experimental culture of those threats would be reduced or will be fully implemented. James River Atlantic sturgeon; (5) eliminated (PECE Effectiveness criteria reducing or eliminating incidental Hudson River Estuary Management 1–6). Therefore, there is no certainty of mortality; (6) identifying and Action Plan implementation and effectiveness of a eliminating known or potentially formalized conservation effort for the A Hudson River Estuary Management harmful chemical contaminants that Penobscot River subpopulation of Action Plan was adopted by the NYDEC impede the recovery of James River Atlantic sturgeon, or for the GOM DPS in May 1996. The goal of this Plan is to sturgeon; (7) maintaining genetic to which it belongs, as a result of the protect, restore, and enhance the integrity and diversity of the wild and plan. productivity and diversity of natural hatchery-reared stocks; and (8) resources of the Hudson River estuary to designating and funding a James River Penobscot River Restoration Project sustain a wide array of present and Atlantic sturgeon restoration lead office. (PRRP) future human benefits. Multiple projects Portions of the plan have already been have been initiated as a response to this The PRRP is the result of many years implemented, including the collection Plan. These include: (1) Coastal of negotiations between Pennsylvania of YOY and adult tissue samples for sampling; (2) juvenile Atlantic sturgeon Power and Light (PPL), U.S. Department genetic analysis; electronic tracking of sonic tracking project; (3) broodstock of the Interior (e.g., FWS, Bureau of sturgeon to determine preferred habitat sonic tagging and PIT tagging to Indian Affairs, National Park Service), use and spawning locations; collecting determine broodstock movements and spine samples to establish age Penobscot Indian Nation, the State of spawning locations; and (4) New York distributions; and establishing a long- Maine (e.g., Maine State Planning long-term juvenile abundance survey. term YOY index survey (A. Spells, FWS, Office, Inland Fisheries and Wildlife, The research projects carried out pers. comm., 2007). All of these are MDMR), and several non-governmental under the Hudson River Estuary expected to provide new information on organizations (NGOs; Atlantic Salmon Management Action Plan are expected the CB DPS of Atlantic sturgeon that Federation, American Rivers, Trout to significantly increase our knowledge could inform management decisions for Unlimited, Natural Resources Council of of Atlantic sturgeon from the NYB DPS. future conservation efforts. However, Maine, among others). If implemented, Such information could help to inform the plan has not been formally approved the PRRP would lead to the removal of management decisions for future by regulatory agencies. Therefore, at this the two lowermost mainstem dams on conservation efforts. However, the Plan time, it is uncertain whether the plan, the Penobscot River (Veazie and Great does not specifically describe the threats including necessary regulatory action, Works) and would decommission the to the Hudson River sturgeon funding, and permitting (PECE Howland Dam and construct a nature- subpopulation, and does not reduce or Implementation criterion 1, 2, 4, and like fishway around it. As a result, eliminate those threats (PECE 6–8) will be fully implemented. portions of historical habitat once Effectiveness criteria 1–6). Therefore, Information to demonstrate the certainty available to Atlantic sturgeon of the there is no certainty of implementation that the conservation effort will be GOM DPS would be reopened. While and effectiveness of a formalized effective is also lacking (PECE the necessary funding has been conservation effort for the Hudson River Effectiveness criterion 1–6). Therefore, committed by the government and other subpopulation of Atlantic sturgeon, or there is no certainty of implementation private donors to achieve the purchase for the NYB DPS to which it belongs, as and effectiveness of a formalized of the dams, a significant amount of a result of the plan. conservation effort for the James River money still must be acquired in order subpopulation of Atlantic sturgeon, or for the parties to exercise the option to James River Atlantic Sturgeon Restoration Plan for the CB DPS of Atlantic sturgeon to decommission and remove the Veazie which it belongs, as a result of the plan. and Great Works dams as well as to In 2005, private and FWS partners construct a nature like fishway for the began work to create a James River Summary of Protective Efforts Howland Dam. Staffing, funding level, Atlantic Sturgeon Restoration Plan. The Various agencies, groups, and funding source, and other resources plan outlines several restoration goals to individuals are carrying out a number of necessary to fully implement the PRRP help preserve and recover the James efforts aimed at protecting and are not identified at this time. Therefore, River Atlantic sturgeon subpopulation. conserving Atlantic sturgeon belonging currently, the PRRP does not satisfy These goals include: (1) Identify to the GOM, NYB, and CB DPSs. These criteria one and seven in the certainty essential habitats, assess subpopulation actions are directed at reducing threats of implementation of the PECE. status, and refine life history faced by Atlantic sturgeon and/or Permitting and regulatory requirements investigations in the James River; (2) gaining additional knowledge of specific are also uncertain at this stage because protect the subpopulation of James Atlantic sturgeon subpopulations. Such they are contingent upon the ability of River Atlantic sturgeon and its habitat; actions could contribute to the recovery the parties to raise the full amount of (3) coordinate and facilitate exchange of of the GOM, NYB, and CB DPSs of funds necessary, FERC approval of the information on James River Atlantic Atlantic sturgeon in the future. Trust’s permit to surrender the dams, sturgeon conservation and restoration However, there is still considerable and completion of required activities; and (4) implement the uncertainty regarding the environmental review. Thus, the PRRP restoration program. The plan also implementation and effectiveness of does not satisfy criterion four of the describes several milestones for these efforts, and the extent to which PECE, which requires that all reaching these goals. Those of most any would reduce the threats to the authorizations (e.g., permits, land owner interest to this review include: (1) GOM, NYB, or CB DPSs that are the permission) necessary to implement the Identifying essential habitats and cause of their (proposed) listing. conservation effort are identified and protecting them using regulatory and/or Therefore, we have determined that that there is a high certainty that the incentive programs; (2) developing and none of these protective efforts currently parties to the agreement will obtain all implementing standardized population contribute to making it unnecessary to necessary authorizations. Therefore, it is sampling and monitoring programs; (3) list the GOM, NYB, or CB DPSs of not possible to state at this time with a developing population models; (4) Atlantic sturgeon.

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Finding for GOM DPS extending southward to include all including coastal bays and estuaries, As stated previously, the range of the associated watersheds draining into the from the Bay of Fundy, Canada, to the GOM DPS is described as watersheds Gulf of Maine as far south as Chatham, Saint Johns River, FL (Figure 3). from the Maine/Canadian border and MA, as well as all marine waters, BILLING CODE 3510–22–P

N Legend _ Gulf of Maine A Adjacent DPS _ u.s. Marine Range

Figure 3: GOM DPS showing rivers (up to the first dam where known) in which the species is known to occur, and a portion of the marine range for the DPS. Shading denotes the general area in which other rivers used by Atlantic sturgeon belonging to the GOM DPS may occur.

BILLING CODE 3510–22–C currently the only known spawning filament gillnet survey conducted on the There are no current abundance river for the GOM DPS. The CPUE of Kennebec River was considerably estimates for the GOM DPS of Atlantic subadult Atlantic sturgeon in a multi- greater for the period of 1998–2000 sturgeon. The Kennebec River is

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(CPUE = 7.43) compared to the CPUE for quality of the watersheds within the comparison to many other species given the period 1977–1981 (CPUE = 0.30). range of the GOM DPS (EPA, 2008). certain life history characteristics. For The CPUE of adult Atlantic sturgeon While the new estimates of Atlantic example, female Atlantic sturgeon showed a slight increase over the same sturgeon bycatch are comparable to produce a large number of eggs per time period (1977–1981 CPUE = 0.12 those considered by the SRT from Stein spawning year (400,000–4 million and versus 1998–2000 CPUE = 0.21) et al. (2004), new analyses suggest that potentially as many as 7–8 million; (Squiers, 2004). the level of bycatch mortality is not Smith et al., 1982; Van Eenennaam et al. Evidence of Atlantic sturgeon sustainable for the GOM DPS in the long 1996; Van Eenennaam and Doroshov, spawning in other rivers of the GOM term (ASMFC, 2007). 1998; Dadswell, 2006). Each DPS is not available. However, Atlantic With respect to water quality, despite reproductively active male Atlantic sturgeon continue to use these historical the persistence of contaminants and sturgeon is capable of fertilizing the eggs spawning rivers and may represent increasing land development, many of multiple females within a spawning additional spawning groups (ASSRT, rivers and watersheds within the range year and, as a result of natal homing, 2007). There is also new evidence of of the GOM DPS have demonstrated spawning adults are cued to areas where Atlantic sturgeon presence in rivers improvement in water quality (EPA, they can expect to find ‘‘mates.’’ These (e.g., the Saco River) where they have 2008). The most recent EPA Coastal characteristics help to ensure that not been observed for many years. Condition Report identified water successful reproduction can still occur The majority of historical Atlantic quality for coastal waters north of Cape even at low levels of abundance. sturgeon spawning habitat is accessible Cod as, generally, fair to good (EPA, Furthermore, Atlantic sturgeon of a in all but the Merrimack River of the 2008). single DPS are temporally and spatially GOM DPS. Whether Atlantic sturgeon We further considered what effect low separated depending on age class and spawning habitat in the GOM DPS is abundance may be having on the GOM reproductive condition. For example, fully functional is difficult to quantify. DPS. According to DeMaster et al. males spawn every 1 to 2 years and In terms of threats to habitat, the SRT (2004), factors that tend to decrease females every 3 to 5 years. Spawning identified water quality and dredging as population growth rates at low levels of occurs over weeks with reproductively threats. While measures do not abundance result in a process known as active females making relatively short currently exist to minimize or reduce ‘‘depensation.’’ Depensation occurs, for spawning runs, thus minimizing their the impacts of dredging specifically for example, when: (1) It is more difficult exposure to catastrophic events that Atlantic sturgeon, the regulatory for individuals to find mates at low might occur in the spawning rivers. mechanisms do exist that would allow levels of abundance; (2) there is a loss Subadults and non-spawning adults the development of such measures. of average fitness because the gene pool range across a wide area of the marine The SRT ranked bycatch as a primary tends to be smaller at low levels of environment while YOY and juveniles threat for the GOM DPS of Atlantic abundance; or (3) the species is more occur in the estuaries of their natal sturgeon since it poses an immediate vulnerable to catastrophic events river. These characteristic range and risk of death for the fish, and specific because a species is likely to be habitat patterns reduce the likelihood regulatory measures to remove or reduce composed of only one or a few that a single catastrophic event (e.g., a Atlantic sturgeon bycatch have not been populations at low levels of abundance. flood, drought, red-tide event) would implemented. Subadult and adult When depensatory factors prevail, even kill or injure a sufficient number of Atlantic sturgeon of the GOM DPS may with the elimination of anthropogenic sturgeon across a single or all age be incidentally caught in fisheries that threats, the species tends toward classes such that the DPS would become occur throughout their marine range. extinction. Many of the fisheries that result in As described above, there is no extinct. bycatch of Atlantic sturgeon, including abundance estimate for the GOM DPS. We also considered whether the the monkfish gillnet fishery, are Based on information available from spatial structure of the GOM DPS has federally regulated through FMPs. Atlantic sturgeon subpopulations of been degraded to the extent that the NMFS is required to reduce bycatch of other DPSs, the SRT (2007) suggested viability of the population is threatened. federally managed fisheries. Therefore, that there may be less than 300 According to the NMFS report, ‘‘Viable while measures to specifically reduce spawning adults per year for the Salmonid Populations and the Recovery bycatch of Atlantic sturgeon are not in Kennebec River subpopulation in the of Evolutionarily Significant Units’’ place, the regulatory mechanisms that GOM DPS. Presuming that the SRT’s (2000), ‘‘a population’s spatial structure would allow the development of such assumption is correct and that the is made up of both the geographic measures do exist. current total population abundance is distribution of individuals in the The SRT considered the factors of low, we considered whether population and the processes that section 4(a)(1) of the ESA and depensation is currently occurring for generate that distribution. A concluded that there was a moderate the GOM DPS of Atlantic sturgeon. We population’s spatial structure depends risk (34–50 percent chance) that the concluded that it is unlikely that the fundamentally on habitat quality, GOM DPS of Atlantic sturgeon would GOM DPS is currently experiencing spatial configuration, and dynamics as become endangered over the next 20 depensation given that Atlantic sturgeon well as the dispersal characteristics of years. However, when considering this of the GOM DPS are being observed in individuals in the population. As one information as well as those efforts increasing numbers (e.g., in the example of how a degraded spatial being made to protect the species, the Kennebec and the Merrimack River structure can threaten the viability of a SRT concluded that there were estuary) and in areas of the GOM DPS population, consider a population insufficient data to make a where they have not been observed for divided into subpopulations. A recommendation as to whether listing many years (e.g., the Saco River). Such population with a high subpopulation was warranted. observations are uncharacteristic of a extinction rate can persist only if new Since completion of the status review subpopulation that is being affected by subpopulations are founded at a rate report, we have received new depensation. In addition, we concluded equal to the rate at which information on Atlantic sturgeon that Atlantic sturgeon are less subpopulations naturally go extinct. If bycatch (ASMFC, 2007) and water susceptible to depensation in human activity interferes with the

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formation of new subpopulations by reported to occur or where they were bycatch, water quality, and dredging. restricting straying patterns or suspected of having been extirpated. There are several indications of destroying habitat patches suitable for The new information on water quality potential for improvement in the status colonization, the population will (EPA, 2008) indicates that water quality of the DPS, including the following: ultimately go extinct as subpopulations has improved. The new information on There have been and continue to be blink out one by one. However, there bycatch (ASMFC TC, 2007), however, improvements in water quality; will be a time lag between the supports that bycatch is having a greater regulatory mechanisms to address disruption of spatial processes and impact on Atlantic sturgeon than that bycatch exist and could be effectively reductions in the abundance or considered by the SRT. Age to maturity implemented to reduce associated productivity of the population because for Atlantic sturgeon of the GOM DPS is mortalities; the effects of dredging have abundance will not necessarily decline unknown. However, age at maturity is been and continue to be addressed for until subpopulations start going 11 to 21 years for Atlantic sturgeon extinct.’’ Based on the best available originating from the Hudson River shortnose sturgeon and, therefore, information, human activity is not (Young et al., 1998), and 22 to 34 years provide indirect benefits for Atlantic restricting straying patterns for Atlantic for Atlantic sturgeon that originate from sturgeon utilizing the same areas; and sturgeon belonging to the GOM DPS or the Saint Lawrence River (Scott and there are some indications of increased destroying patches suitable for Crossman, 1973). Age at maturity for spatial distribution of Atlantic sturgeon colonization. To the contrary, Atlantic Atlantic sturgeon of the GOM DPS likely in some areas of the DPS (e.g., use of the sturgeon of the GOM DPS are being fall within these values given that Saco River and increased use of the observed in increasing numbers (e.g., in Atlantic sturgeon subpopulations Merrimack River estuary). However, the Merrimack River estuary) and in exhibit clinal variation with faster given the on-going threats to the GOM areas (e.g., the Saco River) where they growth and earlier age to maturity for DPS, we conclude that listing as have not been observed for many years. those that originate from more southern threatened is warranted for the GOM In summary, based on the information waters, and slower growth and later age DPS of Atlantic sturgeon. contained in the status review report to maturity for those that originate from and new information on bycatch of more northern waters. Since there is Finding for NYB DPS Atlantic sturgeon as well as water only one (known) spawning group for As stated previously, the range of the quality for the watersheds of the GOM the GOM DPS, loss of the spawning NYB DPS is described as watersheds DPS, we concur with the SRT that group would result in extinction of the bycatch, water quality, and dredging are DPS. that drain into coastal waters, including the threats affecting the GOM DPS of Given these considerations, including Long Island Sound, the New York Bight, Atlantic sturgeon. The SRT determined the original determination by the SRT, and Delaware Bay, from Chatham, MA, that there was a moderate risk (34–50 the best available information indicates to the Delaware-Maryland border on percent chance) that the GOM DPS of the DPS is likely to become an Fenwick Island, as well as all marine Atlantic sturgeon would become endangered species within the waters, including coastal bays and endangered over the next 20 years. foreseeable future (i.e., a greater than 50 estuaries, from the Bay of Fundy, Since completion of the status review percent chance of becoming endangered Canada, to the Saint Johns River, FL report, fish have been documented in over the next 20 years) throughout all or (Figure 4). rivers where they were previously not a significant portion of its range due to BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C Eenennaam et al., 1996; Stevenson and not available. However, Atlantic The only abundance estimate for Secor, 1999; Collins et al., 2000; Caron sturgeon continue to use these rivers Atlantic sturgeon belonging to the NYB et al., 2002), and it is unclear to what (ASSRT, 2007). DPS is 870 spawning adults per year for extent mature fish in a non-spawning the Hudson River subpopulation The majority of historical Atlantic condition occur on the spawning (Kahnle et al., 2007). However, the sturgeon spawning habitat for the NYB grounds. estimate is based on data collected from DPS is accessible. Whether Atlantic 1985–1995 and may underestimate In addition to the Hudson River, sturgeon spawning habitat in the NYB current conditions (Kahnle et al., 2007). Atlantic sturgeon are known to spawn DPS is fully functional is difficult to Data collected from the Hudson River in the Delaware River. Since 1991, more quantify. In terms of threats to habitat, cannot be used to estimate the total than 2,000 Atlantic sturgeon have been the SRT identified water quality and number of adults in the subpopulation captured and tagged (DNREC, 2009) in dredging, and in terms of threats since mature Atlantic sturgeon may not the Delaware River. Evidence of Atlantic affecting the Delaware River spawn every year (Vladykov and sturgeon spawning in the Taunton and subpopulation of the DPS directly, the Greeley, 1963; Smith, 1985; Van Connecticut rivers of the NYB DPS is SRT identified vessel strikes. While

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contaminants persist, the SRT noted Significant increases in abundance Atlantic sturgeon and water quality for several studies and reports indicating and distribution of shortnose sturgeon the watersheds of the NYB DPS, we improvements in water quality within within the Hudson and Delaware Rivers concur with the SRT that bycatch, water the Hudson, Delaware, Taunton, and suggest that improvements in water quality, dredging, and vessel strikes act Connecticut Rivers. Measures do not quality have resulted in benefits to the as significant threats affecting the NYB currently exist to remove or reduce the species. Available evidence further DPS of Atlantic sturgeon. The SRT impacts of dredging and vessel strikes suggests that existing water quality in determined that there was a moderate for Atlantic sturgeon. However, the these rivers and surrounding estuaries is (34–50 percent chance) to moderately regulatory mechanisms do exist that not impeding reproduction of shortnose high risk (greater than 50 percent would allow the development of such sturgeon that occur there. chance) that the NYB DPS would measures. We further considered what effect low become endangered over the next 20 The SRT ranked bycatch as the abundance may be having on the NYB years. The new information on water primary threat for the NYB DPS of DPS, and whether the NYB DPS is quality for the area covered by the NYB Atlantic sturgeon since it poses an currently experiencing depensation. As DPS (EPA, 2008) is similar to that immediate risk of death for the fish, and described above, the estimate of 870 considered by the SRT for the status specific regulatory measures to remove spawning adults per year for the report. The new information on bycatch or reduce Atlantic sturgeon bycatch Hudson River subpopulation is based on (ASMFC TC, 2007), however, supports have not been implemented. Subadult data collected from 1985–1995 (Kahnle that bycatch is having a greater impact and adult Atlantic sturgeon of the NYB et al., 2007). The SRT (2007) suggested on Atlantic sturgeon than that DPS may be incidentally caught in that there may be less than 300 considered by the SRT. Additionally, fisheries that occur throughout their spawning adults per year for the since completion of the status review marine range. Many of the fisheries that Delaware subpopulation of the NYB report, a dredging project to deepen the result in bycatch of Atlantic sturgeon, DPS. We concluded that it is unlikely Delaware shipping channel in an area including the monkfish gillnet fishery, that the Hudson River subpopulation of where Atlantic sturgeon is suspected to are federally regulated through FMPs. the NYB DPS is currently experiencing occur has been proposed and is in the NMFS is required to reduce bycatch of depensation given the available process of attaining necessary federally managed fisheries. Therefore, population estimate which suggests an approvals. Age to maturity for NYB DPS while measures to specifically reduce adult spawning population of close to Atlantic sturgeon is 11 to 21 years bycatch of Atlantic sturgeon are not in 1,000 sturgeon. We were unable to make (Young et al., 1998; DNREC, 2009). place, the regulatory mechanisms that a conclusion as to whether depensation Given that there are two spawning would allow the development of such is likely occurring for the Delaware groups for the NYB DPS, loss of one measures do exist. subpopulation of the NYB DPS. spawning group will not result in the The SRT considered the factors in Evidence of age-0 fish in the Delaware immediate extinction of the NYB DPS. section 4(a)(1) of the ESA and River in 2009 indicates that spawning Nevertheless, the loss of either concluded that there was a moderate continues to occur in that river. Ongoing spawning group would result in loss of (34–50 percent chance) to moderately studies may help to elucidate the spatial structure for the DPS as well as high risk (greater than 50 percent abundance and/or trend in abundance numbers of fish to support spawning. chance) that the NYB DPS would of this subpopulation. However, that Therefore, both spawning groups are become endangered over the next 20 information is not yet available. As essential to the DPS. years. described in the finding for the GOM Given these considerations, we find Since completion of the status review DPS, we have concluded that certain that the best available information does report, we have received new Atlantic sturgeon life history support that the NYB DPS is in danger information on Atlantic sturgeon characteristics help to reduce the of extinction throughout all or a bycatch (ASMFC, 2007) and water likelihood that depensation will occur. significant portion of its range. There quality for the watersheds within the Thus, we expect that depensation for are several indications of potential for NYB DPS (EPA, 2008). While the new Atlantic sturgeon would occur at a improvement in the status of the DPS, estimates of Atlantic sturgeon bycatch lower level of abundance in comparison including the following: Regulatory are comparable to those considered by to a species that did not share these mechanisms to address bycatch exist the SRT from Stein et al. (2004), new characteristics. and could be effectively implemented to analyses suggest that the level of We also considered whether the reduce associated mortalities; and the bycatch mortality is not sustainable for spatial structure of the NYB DPS has effects of dredging have been and the NYB DPS in the long term (ASMFC, been degraded to the extent that the continue to be addressed for shortnose 2007). With respect to water quality, the viability of the population is threatened. sturgeon and, therefore, provide indirect most recent EPA Coastal Condition Based on the best available information, benefits for Atlantic sturgeon where Report identified that coastal water human activity is not restricting straying these species co-occur. However, given quality was fair overall for waters south patterns for Atlantic sturgeon belonging the ongoing threats to the NYB DPS, we of Cape Cod through Delaware (EPA, to the Hudson River subpopulation of conclude that listing as endangered is 2008). However, sampled sites in the NYB DPS. It is unclear, however, to warranted for the NYB DPS of Atlantic Massachusetts and Rhode Island were what extent human activity is restricting sturgeon. generally scored as good while waters straying patterns of sturgeon belonging from Connecticut to Delaware received to the Delaware subpopulation of the Finding for CB DPS fair and poor ratings (EPA, 2008). In NYB DPS, given the very limited As stated previously, the range of the particular, the report noted that most of information on abundance and the CB DPS is described as watersheds that the Northeast Coast sites that were rated known threats affecting this drain into the Chesapeake Bay and into as poor for water quality were subpopulation (i.e., bycatch, water coastal waters from the Delaware- concentrated in a few estuarine systems, quality, dredging and vessel strikes). Maryland border on Fenwick Island to including New York/New Jersey Harbor, In summary, based on the information Cape Henry, VA, as well as all marine some tributaries of the Delaware Bay, contained in the status review report waters, including coastal bays and and the Delaware River (EPA, 2008). and new information on bycatch of estuaries, from the Bay of Fundy,

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Canada, to the Saint Johns River, FL (Figure 5). BILLING CODE 3510–22–P

Legend

Figure 5: CB DPS showing rivers (up to the first dam where known) in which the species is known to occur, and a portion of the marine range for the DPS. Shading denotes the general area in which other rivers used by Atlantic sturgeon belonging to the CB DPS may occur.

BILLING CODE 3510–22–C instituted an Atlantic sturgeon reward all of the sturgeon captured originated There are no current abundance program in the Chesapeake Bay in 1997 from the CB DPS. estimates for the CB DPS. As previously and 1998 (Spells, 2007). This reward Atlantic sturgeon of the CB DPS are stated, the FWS has been funding the program documented and measured 295 known to spawn in the James River. Maryland Reward Program since 1996; Atlantic sturgeon. However, since Clear evidence of Atlantic sturgeon this program has resulted in the sturgeon from multiple DPSs occur in spawning in other rivers of the CB DPS documentation of over 1,133 wild the Chesapeake Bay, it is unlikely that is not available. However, Atlantic Atlantic sturgeon. Virginia also sturgeon continue to use these rivers,

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and may represent additional spawning chance) that the CB DPS would become abundance in comparison to species groups (ASSRT, 2007). In particular, endangered over the next 20 years. that did not share these characteristics. commercial fishers have regularly Since completion of the status review We also considered whether the reported observations of YOY or age-1 report, we have received new spatial structure of the CB DPS has been juveniles in the York River over the past information on the bycatch of Atlantics degraded to the extent that the viability few years (K. Place, Commercial sturgeon (ASMFC, 2007) and water of the population is threatened. Fisherman, pers. comm., 2006). quality of the watersheds within the CB Observations of increased numbers of Analyses of samples collected from DPS (EPA, 2008). While the new juvenile and adult Atlantic sturgeon Atlantic sturgeon juveniles in the James estimates of Atlantic sturgeon bycatch suggest that human activity is not and York Rivers also demonstrated are comparable to those considered by significantly restricting straying patterns genetic differences between the sampled the SRT from Stein et al. (2004), new for Atlantic sturgeon belonging to the groups. The observations and genetic analyses suggest that the level of CB DPS. However, the evidence is not results suggest that spawning may be bycatch mortality is not sustainable for conclusive, given the very limited occurring in the York River. the CB DPS in the long term (ASMFC, information on abundance and The majority of historical Atlantic 2007). With respect to water quality, the distribution of Atlantic sturgeon in the sturgeon spawning habitat for the CB most recent EPA Coastal Condition tributaries to the Bay, and the known DPS is accessible. Although dams are Report identified water quality as fair to threats affecting the DPS (i.e., bycatch, present, most are located upriver of poor for the Chesapeake Bay and water quality, dredging, and vessel where spawning is expected to have immediate vicinity (to the Virginia- strikes). historically occurred. Whether Atlantic North Carolina border) (EPA, 2008). In In summary, based on the information sturgeon spawning habitat in the CB particular, the western and northern contained in the status review report and new information on bycatch of DPS is fully functional is difficult to tributaries of the Chesapeake Bay were Atlantic sturgeon and water quality for quantify. In terms of threats to habitat, rated as poor (EPA, 2008). The Bay is the watersheds of the CB DPS, we the SRT identified water quality and especially vulnerable to the effects of concur with the SRT that bycatch, water dredging, and in terms of direct threats nutrients due to its large surface area to quality, dredging, and vessel strikes act to the CB DPS, the SRT identified vessel volume ratio, relatively low exchange as significant threats affecting the CB strikes. Initiatives have been called for rates, and strong vertical stratification DPS of Atlantic sturgeon. The SRT to address the condition of the during the spring and summer months determined that there was a moderately Chesapeake Bay (Executive Order, May (ASSRT, 2007). The extensive 12, 2009; NOAA’s Chesapeake Bay high risk (greater than 50 percent watersheds of this historically Protection and Restoration Final chance) that the CB DPS would become unglaciated area funnel nutrients, Strategy, 2010). Niklitschek and Secor endangered over the next 20 years. The sediment, and organic material into (2005) demonstrated that achieving the new information on water quality for secluded, poorly flushed estuaries that EPA‘s dissolved oxygen criteria for the the area covered by the CB DPS (EPA, are more susceptible to eutrophication Chesapeake Bay would increase Atlantic 2008) is similar to that considered by (EPA, 2008). sturgeon available habitat by 13 percent the SRT for the status review report. In per year (Niklitschek and Secor, 2005). We further considered what effect low addition, the new information on Measures do not currently exist to abundance may be having on the CB bycatch (ASMFC TC, 2007) supports remove or reduce the impacts of DPS, and whether the CB DPS is that bycatch is having a greater impact dredging and vessel strikes specifically currently experiencing depensation. As on Atlantic sturgeon than that for Atlantic sturgeon. However, the described above, there is no abundance considered by the SRT. Age at maturity regulatory mechanisms that would estimate for the CB DPS. Based on for Atlantic sturgeon originating from allow the development of such information available from Atlantic the Chesapeake Bay DPS is unknown. measures do exist. sturgeon subpopulations of other DPSs, However, age at maturity is 5 to 19 years The SRT ranked bycatch as a primary the SRT (2007) suggested that there may for Atlantic sturgeon originating from threat for the CB DPS of Atlantic be less than 300 spawning adults per South Carolina rivers (Smith et al., sturgeon because it poses an immediate year for the CB DPS. Presuming that the 1982), and 11 to 21 years for Atlantic risk of death for the fish, and specific SRT’s assumption is correct and sturgeon originating from the Hudson regulatory measures to remove or reduce assuming that the current total River (Young et al., 1998). Age at Atlantic sturgeon bycatch have not been population abundance is low, we maturity for Atlantic sturgeon of the CB implemented. Subadult and adult considered whether the CB DPS is DPS likely fall within these values given Atlantic sturgeon of the CB DPS may be currently experiencing depensation. We that Atlantic sturgeon subpopulations incidentally caught in fisheries that concluded that it is unlikely that the CB exhibit clinal variation with faster occur throughout their marine range. DPS is currently experiencing growth and earlier age to maturity for Many of the fisheries that result in depensation, given that increasing those that originate from more southern bycatch of Atlantic sturgeon, including numbers of Atlantic sturgeon belonging waters, and slower growth and later age the monkfish gillnet fishery, are to the CB DPS are being observed to maturity for those that originate from federally regulated through FMPs. (Garman and Balazik, unpub. data in more northern waters. Since there is NMFS is required to reduce bycatch in Richardson et al., 2009). Such only one (known) spawning river for the federally managed fisheries. Therefore, observations are uncharacteristic of a CB DPS, loss of that spawning group while measures to specifically reduce population that is experiencing would result in extinction of the DPS. bycatch of Atlantic sturgeon are not in depensation. In addition, as described Given these considerations, we find place, the regulatory mechanisms that in the finding for the GOM DPS, we that the best available information does would allow the development of such have concluded that certain Atlantic support that the CB DPS is in danger of measures do exist. sturgeon life history characteristics help extinction throughout all or a significant The SRT considered the factors in to reduce the likelihood that portion of its range. There are several section 4(a)(1) of the ESA and depensation will occur. Thus, we expect indications of potential for concluded that there was a moderately that depensation for Atlantic sturgeon improvement in the status of the DPS, high risk (greater than 50 percent would occur at a lower level of including the following: Regulatory

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mechanisms to address bycatch exist conservation actions by Federal and jeopardy analysis. One conservative, but and could be effectively implemented to state agencies, private groups, and potentially cumbersome, method would reduce associated mortalities; and the individuals. Should the proposed be to analyze the total anticipated take effects of dredging have been and listings be made final, a recovery from a proposed project as if all Atlantic continue to be addressed for shortnose program would be implemented, and sturgeon came from a single DPS and sturgeon and, therefore, provide indirect critical habitat may be designated. repeat the jeopardy analysis for each benefits for Atlantic sturgeon where Federal, state, and the private sectors DPS the taken individuals could have these species co-occur. However, given will need to cooperate to conserve listed come from. However, recently funded the ongoing threats to the CB DPS, we Atlantic sturgeon and the ecosystems research may shed some light on the conclude that listing as endangered is upon which they depend. composition of mixed stocks of Atlantic warranted for the CB DPS of Atlantic Critical habitat is defined in section 3 sturgeon, relative to their rivers of sturgeon. of the ESA (16 U.S.C. 1532(3)) as: (1) origin, in locations along the East Coast. The specific areas within the The specific purpose of the study is to Role of Peer Review geographical area occupied by a species, evaluate the vulnerability to coastal In December 2004, the Office of at the time it is listed in accordance bycatch of Hudson River Atlantic Management and Budget (OMB) issued with the ESA, on which are found those sturgeon, thought to be the largest stock a Final Information Quality Bulletin for physical or biological features (a) contributing to coastal aggregations from Peer Review establishing minimum peer essential to the conservation of the the Bay of Fundy to Georgia. However, review standards, a transparent process species and (b) that may require special the mixed stock analysis will also allow for public disclosure of peer review management considerations or NMFS to better estimate a project’s planning, and opportunities for public protection; and (2) specific areas outside effects on different components of a participation. The OMB Bulletin, the geographical area occupied by a mixed stock of Atlantic sturgeon in implemented under the Information species at the time it is listed upon a coastal waters or estuaries other than Quality Act (Pub. L. 106–554), is determination that such areas are where they were spawned. Results from intended to enhance the quality and essential for the conservation of the the study are expected in February credibility of the Federal government’s species. ‘‘Conservation’’ means the use 2011. Genetic mixed stock analysis, scientific information, and applies to of all methods and procedures needed such as proposed in this study, requires influential or highly influential to bring the species to the point at a high degree of resolution among stocks scientific information disseminated on which listing under the ESA is no contributing to mixed aggregations and or after June 16, 2005. To satisfy our longer necessary. Section 4(a)(3)(a) of characterization of most potential requirements under the OMB Bulletin, the ESA (16 U.S.C. 1533(a)(3)(A)) contributory stocks. Fortunately, almost the Atlantic sturgeon status review requires that, to the extent prudent and all extant populations, at least those report was peer reviewed by six experts determinable, critical habitat be with reasonable population sizes, have in the field, with their substantive designated concurrently with the listing been characterized in previous genetic comments incorporated in the final of a species. If we determine that it is studies, though some additional status review report. prudent and determinable, we will populations will be characterized in this On July 1, 1994, the NMFS and publish a proposed designation of study. Genetic testing of mixed stocks USFWS published a series of policies critical habitat for Atlantic sturgeon in will be conducted in eight coastal regarding listings under the ESA, a separate rule. Public input on features locales in both the Northeast and including a policy for peer review of and areas that may meet the definition Southeast Regions. Coastal fisheries and scientific data (59 FR 34270). The intent of critical habitat for the Gulf of Maine, sites were selected based on sample of the peer review policy is to ensure New York Bight, and Chesapeake Bay availabilities, bycatch concerns, and that listings are based on the best DPSs is invited. specific biological questions (i.e., real scientific and commercial data Identifying the DPS(s) Potentially uncertainty as to stock origins of the available. Prior to a final listing, NMFS coastal aggregation). We are specifically will solicit the expert opinions of three Affected by an Action During Section 7 Consultation seeking public input on the mixing of qualified specialists selected from the fish from different DPSs in parts of their academic and scientific community, The GOM, NYB, and CB DPSs are ranges, particularly in the marine Federal and State agencies, and the distinguished based on genetic data and environment. private sector on listing spawning locations. However, extensive recommendations to ensure the best mixing of the populations occurs in Identification of Those Activities That biological and commercial information coastal waters. Therefore, the Would Constitute a Violation of Section is being used in the decisionmaking distributions of the DPSs outside of 9 of the ESA process, as well as to ensure that natal waters generally overlap with one On July 1, 1994, we and USFWS reviews by recognized experts are another, and with fish from Southeast published a policy to identify, to the incorporated into the review process of river populations. This presents a maximum extent possible, those rulemakings developed in accordance challenge in conducting ESA section 7 activities that would or would not with the requirements of the ESA. consultations because fish from any DPS constitute a violation of section 9 of the could potentially be affected by a ESA (59 FR 34272). The intent of this Effects of Listing proposed project. Project location alone policy is to increase public awareness of Conservation measures provided for will likely not inform the section 7 the effect of this listing on proposed and species listed as endangered or biologist as to which populations to ongoing activities within the species’ threatened under the ESA include consider in the analysis of a project’s range. We will identify, to the extent recovery actions (16 U.S.C. 1533(f)), potential direct and indirect effects on known at the time of the final rule, critical habitat designations, Federal Atlantic sturgeon and their habitat. This specific activities that will not be agency consultation requirements (16 will be especially problematic for considered likely to result in violation U.S.C. 1536), and prohibitions on taking projects where take could occur because of section 9, as well as activities that (16 U.S.C. 1538). Recognition of the it is critical to know which Atlantic will be considered likely to result in species’ plight through listing promotes sturgeon population(s) to include in the violation. Activities that we believe

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could result in violation of section 9 (4) provision of care for live Atlantic preempt state law, or impose substantial prohibitions against ‘‘take’’ of the sturgeon that were in captivity at the direct compliance costs on state and Atlantic sturgeon in the NYB and CB time of this listing. local governments (unless required by DPSs include, but are not limited to, the Section 9(b)(1) of the ESA provides a statute). Pursuant to the Executive Order following: (1) Bycatch associated with narrow exemption for held in on Federalism, E.O. 13132, the Assistant commercial and recreational fisheries; captivity at the time of listing: Those Secretary for Legislative and (2) poaching of individuals for meat or animals are not subject to the import/ Intergovernmental Affairs will provide caviar; (3) marine vessel strikes; (4) export prohibition or to protective notice of the proposed action and destruction of riverine, estuarine, and regulations adopted by the Secretary, so request comments from the governors of marine habitat through such activities as long as the holding of the species in the states in which the three DPSs agricultural and urban development, captivity, before and after listing, is not proposed to be listed occur. commercial activities, diversion of in the course of a commercial activity; Environmental Justice water for hydropower and public however, 180 days after listing, there is consumption, and dredge and fill a rebuttable presumption that the Executive Order 12898 requires that operations; (5) impingement and exemption does not apply. Thus, in Federal actions address environmental entrainment in water control structures; order to apply this exemption, the justice in decision-making process. In burden of proof for confirming the (6) unauthorized collecting or handling particular, the environmental effects of status of animals held in captivity prior of the species (permits to conduct these the actions should not have a to listing lies with the holder. The activities are available for purposes of disproportionate effect on minority and section 9(b)(1) exemption for captive scientific research or to enhance the low-income communities. The proposed wildlife would not apply to any progeny propagation or survival of the DPSs); (7) listing determination is not expected to of the captive animals that may be releasing a captive Atlantic sturgeon have a disproportionately high effect on produced post-listing. into the wild; and (8) harming captive minority populations or low-income Atlantic sturgeon by, among other References Cited populations. things, injuring or killing them through A complete list of the references used veterinary care, research, or breeding Coastal Zone Management Act (16 in this proposed rule is available upon activities outside the bounds of normal U.S.C. 1451 et seq.) request (see ADDRESSES). husbandry practices. We intend Section 307(c)(1) of the Federal Classification to undergo a rulemaking process under Coastal Zone Management Act of 1972 section 4(d) to issue protective National Environmental Policy Act requires that all Federal activities that regulations for the GOM DPS, which is The 1982 amendments to the ESA, in affect any land or water use or natural being proposed as threatened under the resource of the coastal zone be ESA, and it is likely that these same section 4(b)(1)(A), restrict the information that may be considered consistent with approved state coastal activities would result in violation of zone management programs to the take prohibitions that we may extend to when assessing species for listing. Based on this limitation of criteria for a listing maximum extent practicable. NMFS has the GOM DPS in such a section 4(d) determined that this action is consistent rule. decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d to the maximum extent practicable with We believe that, based on the best 825 (6th Cir. 1981), NMFS has the enforceable policies of approved available information, the following concluded that ESA listing actions are Coastal Zone Management Programs of actions will not result in a violation of not subject to the environmental each of the states within the range of the section 9: (1) Possession of Atlantic assessment requirements of the National three DPSs. Letters documenting NMFS’ sturgeon acquired lawfully by permit Environmental Policy Act (NEPA). (See determination, along with the proposed issued by NMFS pursuant to section 10 NOAA Administrative Order 216–6.) rule, were sent to the coastal zone of the ESA, or by the terms of an management program offices in each incidental take statement in a biological Executive Order 12866, Regulatory affected state. A list of the specific state opinion pursuant to section 7 of the Flexibility Act and Paperwork contacts and a copy of the letters are ESA; (2) Federally approved projects Reduction Act available upon request. that involve activities such as As noted in the Conference Report on List of Subjects agriculture, managed fisheries, road the 1982 amendments to the ESA, construction, discharge of fill material, economic impacts cannot be considered 50 CFR Part 223 stream channelization, or diversion for when assessing the status of a species. which consultation under section 7 of Therefore, the economic analysis Administrative practice and the ESA has been completed, and when requirements of the Regulatory procedure, Endangered and threatened such activity is conducted in Flexibility Act are not applicable to the species, Exports, Imports, Reporting and accordance with any terms and listing process. In addition, this recordkeeping requirements, conditions given by NMFS in an proposed rule is exempt from review Transportation. incidental take statement in a biological under Executive Order 12866. This 50 CFR Part 224 opinion pursuant to section 7 of the proposed rule does not contain a ESA; (3) continued possession of live collection-of-information requirement Endangered and threatened species, Atlantic sturgeon that were in captivity for the purposes of the Paperwork Exports, Imports. or in a controlled environment (e.g., in Reduction Act. Dated: September 23, 2010. aquaria) at the time of this listing, so long as the prohibitions under an ESA Federalism Eric C. Schwaab, section 9(a)(1) are not violated. If listed, E.O. 13132 requires agencies to take Assistant Administrator for Fisheries, NMFS will provide contact information into account any federalism impacts of National Marine Fisheries Service. for facilities to submit information on regulations under development. It For the reasons set out in the Atlantic sturgeon in their possession, to includes specific consultation directives preamble, 50 CFR parts 223 and 224 are establish their claim of possession; and for situations where a regulation will proposed to be amended as follows:

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PART 223—THREATENED MARINE Authority: 16 U.S.C. 1531–1543; subpart B, 2. In § 223.102, paragraph (c)(29) is AND ANADROMOUS SPECIES § 223.201–202 also issued under 16 U.S.C. added to read as follows: 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). § 223.102 Enumeration of threatened 1. The authority citation for part 223 marine and anadromous species. continues to read as follows: * * * * *

Species 1 Citation(s) for Citation(s) for Where listed listing critical habitat Common name Scientific name determination(s) designation(s)

******* (c) * * * (29) Atlantic Stur- Acipenser oxyrinchus Gulf of Maine Distinct Population Segment. The GOM [INSERT FR CI- geon—Gulf of oxyrinchus. DPS includes the following: All anadromous Atlantic TATION & Maine DPS*. sturgeon whose range occurs in watersheds from DATE WHEN the Maine/Canadian border and extending south- PUBLISHED ward to include all associated watersheds draining AS A FINAL into the Gulf of Maine as far south as Chatham, MA, RULE]. as well as wherever these fish occur in coastal bays and estuaries and the marine environment. Within this range, Atlantic sturgeon have been documented from the following rivers: Penobscot, Kennebec, Androscoggin, Sheepscot, Saco, Piscataqua, and Merrimack. The marine range of Atlantic sturgeon from the GOM DPS extends from the Bay of Fundy, Canada to the Saint Johns River, FL. The GOM DPS also includes Atlantic sturgeon held in captivity (e.g., hatcheries, scientific institutions) and which are identified as fish belonging to the GOM DPS based on genetics analyses, previously applied tags, pre- viously applied marks, or documentation to verify that the fish originated from (hatched in) a river with- in the range of the GOM DPS, or is the progeny of any fish that originated from a river within the range of the GOM DPS.

******* 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * * Authority: 16 U.S.C. 1531–1543 and 16 § 224.101 Enumeration of endangered U.S.C. 1361 et seq. marine and anadromous species PART 224—ENDANGERED MARINE 4. In § 224.101(a), amend the table by * * * * * AND ANADROMOUS SPECIES adding entries for Atlantic Sturgeon– (a) * * * 3. The authority citation for part 224 New York Bight DPS, and Atlantic continues to read as follows: Sturgeon–Chesapeake Bay DPS at the end of the table to read as follows:

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Species 1 Citation(s) for Citation(s) for Where listed listing critical habitat Common name Scientific name determination(s) designation(s)

******* Atlantic Sturgeon— Acipenser oxyrinchus New York Bight Distinct Population Segment. The NYB [INSERT FR CI- NA New York Bight oxyrinchus. DPS includes the following: All anadromous Atlantic TATION & DPS. sturgeon whose range occurs in the watersheds that DATE WHEN drain into coastal waters, including Long Island PUBLISHED Sound, the New York Bight, and Delaware Bay, from AS A FINAL Chatham, MA to the Delaware-Maryland border on RULE]. Fenwick Island. Within this range, Atlantic sturgeon have been documented from the Hudson and Dela- ware rivers as well as at the mouth of the Con- necticut and Taunton rivers, and throughout Long Is- land Sound. The marine range of Atlantic sturgeon from the NYB DPS extends from the Bay of Fundy, Canada to the Saint Johns River, FL. The NYB DPS also includes Atlantic sturgeon held in captivity (e.g., hatcheries, scientific institutions) and which are iden- tified as fish belonging to the NYB DPS based on genetics analyses, previously applied tags, pre- viously applied marks, or documentation to verify that the fish originated from (hatched in) a river with- in the range of the NYB DPS, or is the progeny of any fish that originated from a river within the range of the NYB DPS. Atlantic Sturgeon— Acipenser oxyrinchus Chesapeake Bay Distinct Population Segment. The CB [INSERT FR CI- NA Chesapeake Bay oxyrinchus. DPS includes the following: All anadromous Atlantic TATION & DPS. sturgeon whose range occurs in the watersheds that DATE WHEN drain into the Chesapeake Bay and into coastal wa- PUBLISHED ters from the Delaware-Maryland border on Fenwick AS A FINAL Island to Cape Henry, VA, as well as wherever RULE]. these fish occur in coastal bays and estuaries and the marine environment. Within this range, Atlantic sturgeon have been documented from the James, York, Potomac, Rappahannock, Pocomoke, Choptank, Little Choptank, Patapsco, Nanticoke, Honga, and South rivers as well as the Susque- hanna Flats. The marine range of Atlantic sturgeon from the CB DPS extends from the Bay of Fundy, Canada to the Saint Johns River, FL. The CB DPS also includes Atlantic sturgeon held in captivity (e.g., hatcheries, scientific institutions) and which are iden- tified as fish belonging to the CB DPS based on ge- netics analyses, previously applied tags, previously applied marks, or documentation to verify that the fish originated from (hatched in) a river within the range of the CB DPS, or is the progeny of any fish that originated from a river within the range of the CB DPS. 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

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* * * * * ADDRESSES: You may submit comments, Public Hearings [FR Doc. 2010–24459 Filed 10–5–10; 8:45 am] identified by the XRIN 0648–XN50, by One public hearing will be held in a BILLING CODE 3510–22–P any of the following methods: central location for each DPS. We will • Electronic Submissions: Submit all schedule the public hearings on this electronic public comments via the proposal and announce the dates, times, DEPARTMENT OF COMMERCE Federal eRulemaking Portal http// and locations of those hearings, as well National Oceanic and Atmospheric www.regulations.gov. Follow the as how to obtain reasonable Administration instructions for submitting comments. accommodations for disabilities, in the • Mail or hand-delivery: Assistant Federal Register and local newspapers 50 CFR Part 224 Regional Administrator for Protected at least 15 days before the first hearing. Resources, NMFS, Southeast Regional Background RIN 0648–XN50 Office, 263 13th Avenue South, St. [Docket No. 090219208–9210–01] Petersburg, FL 33701. Initiation of the Status Review • Facsimile (fax) to: 727–824–5309. We first identified Atlantic sturgeon Endangered and Threatened Wildlife Instructions: All comments received as a candidate species in 1991. On June and Plants; Proposed Listings for Two are considered part of the public record 2, 1997, NMFS and USFWS Distinct Population Segments of and will generally be posted to http:// (collectively, the Services) received a Atlantic Sturgeon (Acipenser www.regulations.gov. All Personal petition from the Biodiversity Legal oxyrinchus oxyrinchus) in the Identifying Information (i.e., name, Foundation requesting that we list Southeast address, etc.) voluntarily submitted may Atlantic sturgeon in the United States, AGENCY: National Marine Fisheries be publicly accessible. Do not submit where it continues to exist, as Service (NMFS), National Oceanic and Confidential Business Information or threatened or endangered and designate Atmospheric Administration (NOAA), otherwise sensitive or protected critical habitat within a reasonable Commerce. information. We will accept anonymous period of time following the listing. A comments (enter ‘‘n/a’’ in the required ACTION: Proposed rule; request for notice was published in the Federal comments. fields if you wish to remain Register on October 17, 1997, stating anonymous). Please provide electronic that the Services had determined SUMMARY: In 2007, a Status Review attachments using Microsoft Word, substantial information existed Team (SRT) consisting of Federal Excel, WordPerfect, or Adobe PDF file indicating the petitioned action may be biologists from NMFS, U.S. Geological formats only. This proposed rule, the warranted (62 FR 54018). In 1998, after Survey (USGS), and U.S. Fish and list of references, and the status review completing a comprehensive status Wildlife Service (USFWS) completed a report are also available electronically at review, the Services published a 12- status review report on Atlantic the NMFS Web site at http:// month determination in the Federal sturgeon (Acipenser oxyrinchus sero.nmfs.noaa.gov/pr/sturgeon.htm. Register announcing that listing was not oxyrinchus) in the United States. We, FOR FURTHER INFORMATION CONTACT: warranted at that time (63 FR 50187; NMFS, have reviewed this status review Kelly Shotts, NMFS, Southeast Regional September 21, 1998). We retained report and all other best available Office (727) 824–5312 or Marta Atlantic sturgeon on the candidate information to determine if listing Nammack, NMFS, Office of Protected species list (and subsequently Atlantic sturgeon under the Endangered Resources (301) 713–1401. transferred it to the Species of Concern Species Act (ESA) as either threatened List (69 FR 19975; April 15, 2004)). or endangered is warranted. The SRT SUPPLEMENTARY INFORMATION: Concurrently, the Atlantic States Marine recommended that Atlantic sturgeon in Public Comments Solicited Fisheries Commission (ASMFC) the United States be divided into the completed Amendment 1 to the 1990 following five distinct population We intend that any final action Atlantic Sturgeon Fishery Management segments (DPSs): Gulf of Maine; New resulting from this proposal will be as Plan (FMP) that imposed a 20- to 40- York Bight; Chesapeake Bay; Carolina; accurate as possible and informed by year moratorium on all Atlantic and South Atlantic, and we agree with the best available scientific and sturgeon fisheries until the Atlantic this DPS structure. After reviewing the commercial information. Therefore, we Coast spawning stocks could be restored available information on the Carolina request comments or information from to a level where 20 subsequent year and South Atlantic DPSs, the two DPSs the public, other concerned classes of adult females were protected located within the NMFS Southeast governmental agencies, the scientific (ASMFC, 1998). In 1999, pursuant to Region, we have determined that listing community, industry, or any other section 804(b) of the Atlantic Coastal these two DPSs as endangered is interested party concerning this Fisheries Cooperative Management Act warranted. Therefore, we propose to list proposed rule. We particularly seek (ACFCMA) (16 U.S.C. 5101 et seq.), we these two DPSs as endangered under the comments concerning: followed this action by closing the ESA. We have published a separate (1) The abundance of Atlantic Exclusive Economic Zone (EEZ) to listing determination for the DPSs sturgeon in the various river systems in Atlantic sturgeon retention. In 2003, we within the NMFS Northeast Region in the Carolina and South Atlantic DPSs; sponsored a workshop in Raleigh, North today’s Federal Register. (2) The mixing of fish from different Carolina, with USFWS and ASMFC DATES: Comments on this proposed rule DPSs in parts of their ranges, entitled, ‘‘The Status and Management must be received by January 4, 2011. At particularly in the marine environment; of Atlantic Sturgeon,’’ to discuss the least one public hearing will be held in (3) Information concerning the status of sturgeon along the Atlantic a central location for each DPS; notice viability of and/or threats to Atlantic Coast and determine what obstacles, if of the location(s) and time(s) of the sturgeon in the Carolina and South any, were impeding their recovery hearing(s) will be subsequently Atlantic DPSs; and (Kahnle et al., 2005). The workshop published in the Federal Register not (4) Efforts being made to protect revealed mixed results in regards to the less than 15 days before the hearing is Atlantic sturgeon in the Carolina and status of Atlantic sturgeon populations, held. South Atlantic DPSs. despite the coastwide fishing

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