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DEPARTMENT OF COMMERCE miles) of aquatic habitat in the following published on June 3, 2016. The rivers of North Carolina and South proposed designations can be found at National Oceanic and Atmospheric Carolina: Roanoke, Tar-Pamlico, Neuse, 81 FR 35701 for the Gulf of Maine, New Administration Cape Fear, Northeast Cape Fear, York Bight, and Chesapeake Bay DPSs Waccamaw, Pee Dee, Black, Santee, of Atlantic sturgeon and at 81 FR 36077 50 CFR Part 226 North Santee, South Santee, and for the Carolina and South Atlantic [Docket No. 150818735–7452–02] Cooper, and the following other water DPSs of Atlantic sturgeon. A subsequent body: Bull Creek. Specific occupied correction notice clarifying the types of RIN 0648–BF28 areas designated as critical habitat for manmade structures not included in the the South Atlantic DPS of Atlantic proposed designation for the Carolina Endangered and Threatened Species; sturgeon contain approximately 2,883 and South Atlantic DPSs was published Designation of Critical Habitat for the km (1,791 miles) of aquatic habitat in on June 28, 2016 (81 FR 41926). On Endangered New York Bight, the following rivers of South Carolina, February 11, 2016, NMFS and the Chesapeake Bay, Carolina and South Georgia, and Florida: Edisto, Combahee- USFWS published a final rule, Atlantic Distinct Population Segments Salkehatchie, Savannah, Ogeechee, Implementing Changes to the of Atlantic Sturgeon and the Altamaha, Ocmulgee, Oconee, Satilla, Regulations for Designating Critical Threatened Gulf of Maine Distinct and St. Marys Rivers. Habitat (81 FR 7414) (the Population Segment of Atlantic DATES: This rule becomes effective Implementation rule). As the Sturgeon September 18, 2017. Implementation rule discussed, the changes to these regulations were meant AGENCY: National Marine Fisheries ADDRESSES: The final rule, maps, Final to more clearly describe the Services’ Service (NMFS), National Oceanic and Impacts Analysis Reports and Final past and ongoing practices for Atmospheric Administration (NOAA), Regulatory Flexibility Analyses used in designating critical habitat. The Commerce. preparation of this final rule are proposed rules designating critical ACTION: Final rule. available on the NMFS Greater Atlantic Regional Fisheries Office (GARFO) Web habitat for Atlantic sturgeon were largely drafted at the time the final SUMMARY: We (NMFS) are issuing this site at http://www.greateratlantic. Implementation rule was published, and final rule to designate critical habitat for fisheries.noaa.gov/, and NMFS were based on past practices the threatened Gulf of Maine distinct Southeast Regional Fisheries Office incorporated into that rule. Thus, no population segment (DPS) of Atlantic (SERO) Web site at http:// substantive changes were made to the sturgeon, the endangered New York sero.nmfs.noaa.gov/, or by contacting Atlantic sturgeon proposed rules as a Bight DPS of Atlantic sturgeon, the Lynn Lankshear, NMFS, GARFO, 55 result of finalizing the Implementation endangered Chesapeake Bay DPS of Great Republic Drive, Gloucester, MA rule. Atlantic sturgeon, the endangered 01930 or Andrew Herndon, NMFS, We solicited comments from the Carolina DPS of Atlantic sturgeon and SERO, 263 13th Avenue South, Saint public on all aspects of the proposed the endangered South Atlantic DPS of Petersburg, FL 33701. rules and held public hearings in Atlantic sturgeon pursuant to the FOR FURTHER INFORMATION CONTACT: Gloucester, Massachusetts; Brunswick, Endangered Species Act (ESA). Specific Lynn Lankshear, NMFS, GARFO at the Georgia; Charleston, South Carolina; occupied areas designated as critical address above or at 978–282–8473; and Morehead City, North Carolina. The habitat for the Gulf of Maine DPS of Andrew Herndon, NMFS, SERO at the initial regulatory flexibility analysis Atlantic sturgeon contain approximately address above or at 727–824–5312; or (IRFA) and the draft Impacts Analysis 244 kilometers (km; 152 miles) of Marta Nammack, NMFS, Office of (DIA) prepared for each proposed rule aquatic habitat in the following rivers of Protected Resources at 301–427–8469. pursuant to section 4(b)(2) of the ESA Maine, New Hampshire, and SUPPLEMENTARY INFORMATION: were made available for public review Massachusetts: Penobscot, Kennebec, Background and comment along with the proposed Androscoggin, Piscataqua, Cocheco, rules. Upon request, we re-opened the Salmon Falls, and Merrimack. Specific In 2012, we listed five DPSs of public comment period of both occupied areas designated as critical Atlantic sturgeon under the ESA: Four proposed rules for an additional 15 habitat for the New York Bight DPS of were listed as endangered (New York days, from September 29, 2016, to Atlantic sturgeon contain approximately Bight DPS and Chesapeake Bay DPS; 77 October 14, 2016 (81 FR 66911; Sept. 29, 547 km (340 miles) of aquatic habitat in FR 5880; February 6, 2012; Carolina 2016); the entire public comment period the following rivers of Connecticut, DPS and South Atlantic DPS; 77 FR totaled 105 days. After receiving public Massachusetts, New York, New Jersey, 5914; February 6, 2012) and one as comment, we decided to complete the Pennsylvania, and Delaware: threatened (Gulf of Maine DPS; 77 FR critical habitat designations with one Connecticut, Housatonic, Hudson, and 5880; February 6, 2012). On March 18, final rule. Combining the designations Delaware. Specific occupied areas 2014, two non-governmental into a single final rule will provide designated as critical habitat for the organizations filed a lawsuit alleging we greater clarity to the public about the Chesapeake Bay DPS of Atlantic had violated the ESA by failing to issue total extent of the Atlantic sturgeon sturgeon contain approximately 773 km proposed and final rules designating critical habitat designations, reduce (480 miles) of aquatic habitat in the critical habitat for the Atlantic sturgeon redundancy, and enable the public to following rivers of Maryland, Virginia, DPSs. Pursuant to a court-ordered better understand the need to designate and the District of Columbia: Potomac, settlement agreement, as modified, we the affected areas. Rappahannock, York, Pamunkey, agreed to submit proposed rules Final regulatory flexibility analyses Mattaponi, James, Nanticoke, and the designating critical habitat for all DPSs (FRFAs) and final Impacts Analysis following other water body: of Atlantic sturgeon to the Office of the reports (IAs) updating the initial Marshyhope Creek. Specific occupied Federal Register by May 30, 2016. analyses and reports, that were areas designated as critical habitat for NMFS met that deadline and the two published with the proposed rules, have the Carolina DPS of Atlantic sturgeon proposed critical habitat rules for the been prepared to accompany this final contain approximately 1,939 km (1,205 five Atlantic sturgeon DPSs were rule. Combining the regional FRFAs and

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IAs into single documents would make (3) Water of appropriate depth and (i) Unimpeded movement of adults to it difficult for the public to keep track absent physical barriers to passage (e.g., and from spawning sites; of which parts of the single documents locks, dams, thermal plumes, turbidity, (ii) Seasonal and physiologically- built upon the underlying data from the sound, reservoirs, gear, etc.) between the dependent movement of juvenile individual analyses published with the river mouth and spawning sites Atlantic sturgeon to appropriate salinity proposed rules. In addition, at the necessary to support: zones within the river estuary; and proposed rule stage, our two NMFS (i) Unimpeded movement of adults to (iii) Staging, resting, or holding of regions used different methodologies to and from spawning sites; subadults or spawning condition adults. evaluate impacts, relying on (ii) Seasonal and physiologically Water depths in main river channels consultation databases that are region dependent movement of juvenile must also be deep enough (at least 1.2 specific to address the different Atlantic sturgeon to appropriate salinity m) to ensure continuous flow in the circumstances applicable to a specific zones within the river estuary; and main channel at all times when any region. Courts have noted the ESA (iii) Staging, resting, or holding of sturgeon life stage would be in the river. provides the USFWS and NMFS (the subadults or spawning condition adults. (4) Water quality conditions, Services) with broad discretion and Water depths in main river channels especially in the bottom meter of the flexibility in determining which must also be deep enough (e.g., at least water column, between the river mouths particular methodologies or approaches 1.2 m) to ensure continuous flow in the and spawning sites with temperature are best for each specific set of main channel at all times when any and oxygen values that support: circumstances (See, e.g., Bldg. Indus. (i) Spawning; sturgeon life stage would be in the river. (ii) Annual and inter-annual adult, Ass’n of the Bay Area et al. v. U.S. (4) Water, between the river mouth Dep’t. of Commerce et al., No. 13– subadult, larval, and juvenile survival; and spawning sites, especially in the and 15132, 9th Cir., July 7, 2015 (upholding bottom meter of the water column, with district court’s ruling that the ESA does (iii) Larval, juvenile, and subadult the temperature, salinity, and oxygen growth, development, and recruitment. not require the agency to follow a values that, combined, support: specific methodology when designating Appropriate temperature and oxygen (i) Spawning; values will vary interdependently, and critical habitat under section 4(b)(2)). (ii) Annual and interannual adult, Accordingly, we maintained the depending on salinity in a particular subadult, larval, and juvenile survival; habitat. For example, 6.0 mg/L DO or separate sets because combining the two and distinct sets of regional analyses would greater likely supports juvenile rearing (iii) Larval, juvenile, and subadult habitat, whereas DO less than 5.0 mg/L not have gained any efficiencies and growth, development, and recruitment would have created overly complicated for longer than 30 days is less likely to (e.g., 13 °C to 26 °C for spawning habitat reports that would be difficult for the support rearing when water temperature and no more than 30 °C for juvenile ° public to follow. The final analyses are is greater than 25 C. In temperatures rearing habitat, and 6 milligrams per ° publicly available (see ADDRESSES). greater than 26 C, DO greater than 4.3 We determined that a key liter (mg/L) dissolved oxygen (DO) or mg/L is needed to protect survival and conservation objective for the Gulf of greater for juvenile rearing habitat). growth. Temperatures of 13 to 26 °C Maine, New York Bight, and We determined that the key likely to support spawning habitat. Chesapeake Bay DPSs is to increase the conservation objectives for the Carolina and South Atlantic DPSs of Atlantic Atlantic Sturgeon Natural History and abundance of each DPS by facilitating Status increased successful reproduction and sturgeon are to increase the abundance recruitment to the marine environment. of each DPS by facilitating increased There are two subspecies of Atlantic We know that each of these DPSs is at survival of all life stages and facilitating sturgeon—the Gulf sturgeon (Acipenser a low level of abundance and that adult reproduction and juvenile and oxyrinchus desotoi) and the Atlantic successful reproduction and subadult recruitment into the adult sturgeon (Acipenser oxyrinchus recruitment, which are essential to the population. We determined the physical oxyrinchus). Historically, the Gulf conservation of the species, occur in a features essential to the conservation of sturgeon occurred from the Mississippi limited number of rivers for each DPS. the species and that may require special River east to Tampa Bay in Florida. Its Based on the best scientific information management considerations or present range extends from Lake available for the life history needs of the protection, which support the identified Pontchartrain and the Pearl River Gulf of Maine, New York Bight, and conservation objectives, are: system in Louisiana and Mississippi Chesapeake Bay DPSs, the physical (1) Hard bottom substrate (e.g., rock, east to the Suwannee River in Florida. features essential to the conservation of cobble, gravel, limestone, boulder, etc.) The Gulf sturgeon was listed as the species and that may require special in low salinity waters (i.e., 0.0–0.5 ppt threatened under the ESA in 1991. This management considerations or range) for settlement of fertilized eggs rule addresses the Atlantic sturgeon protection are: and refuge, growth, and development of (Acipenser oxyrinchus oxyrinchus), (1) Hard bottom substrate (e.g., rock, early life stages; which is distributed along the eastern cobble, gravel, limestone, boulder, etc.) (2) Transitional salinity zones coast of North America. Historically, in low salinity waters (i.e., 0.0 to 0.5 inclusive of waters with a gradual sightings of Atlantic sturgeon have been parts per thousand (ppt) range) for downstream gradient of 0.5– up to 30 reported from Hamilton Inlet, Labrador, settlement of fertilized eggs, refuge, ppt and soft substrate (e.g., sand, mud) Canada, south to the St. Johns River, growth, and development of early life between the river mouths and spawning Florida, United States. Reported stages; sites for juvenile foraging and occurrences south of the St. Johns River, (2) Aquatic habitat with a gradual physiological development; Florida, have been rare but have downstream salinity gradient of 0.5 up (3) Water of appropriate depth and increased recently with the evolution of to as high as 30 ppt and soft substrate absent physical barriers to passage (e.g., acoustic telemetry coupled with (e.g., sand, mud) between the river locks, dams, thermal plumes, turbidity, increased receiver arrays. mouth and spawning sites for juvenile sound, reservoirs, gear, etc.) between the Although there is considerable foraging and physiological river mouths and spawning sites variability among species, all sturgeon development; necessary to support: species (Order Acipenseriformes) have

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some common life history traits. They (Ryder, 1888; Bigelow and Schroeder, Hatching occurs approximately 94 to all: (1) Occur within the Northern 1953; Johnson et al., 1997; Secor et al., 140 hours after egg deposition at Hemisphere; (2) spawn in freshwater 2000; ASSRT, 2007; Guilbard et al., temperatures of 68.0 to 64.4 °F (20 to over hard bottom substrates; (3) 2007; Hatin et al., 2007; Savoy, 2007; 18 °C), respectively. The newly emerged generally do not spawn annually; (4) are Dzaugis, 2013; McLean et al., 2013). larvae assume a demersal existence benthic foragers; (5) mature relatively An anadromous species, Atlantic (Smith et al., 1980). The yolk sac larval late and are relatively long lived; and (6) sturgeon spawns in freshwater of rivers stage is completed in about 8 to 12 days, are relatively sensitive to low DO levels that flow into a coastal estuary. during which time the larvae move (Dees, 1961; Sulak and Clugston, 1999; Spawning adults migrate upriver in the downstream to rearing grounds (Kynard Billard and Lecointre, 2001; Secor and spring, typically during February and and Horgan, 2002). During the first half Niklitschek, 2002; Pikitch et al., 2005). March in southern systems, April and of their migration downstream, Atlantic sturgeon have all of the above May in mid-Atlantic systems, and May movement occurs only at night. During traits. They occur along the eastern and July in Canadian systems the day, larvae use benthic structure coast of North America from Hamilton (Murawski and Pacheco, 1977; Smith, (e.g., gravel matrix) as refuge (Kynard Inlet, Labrador, Canada to Cape 1985; Bain, 1997; Smith and Clugston, and Horgan, 2002). During the latter half Canaveral, Florida, United States 1997; Caron et al., 2002). A fall of migration, when larvae are more fully (Bigelow and Welsh, 1925; Dees, 1961; spawning migration has been developed, movement to rearing Vladykov and Greeley, 1963; NMFS and hypothesized for many years (Rogers grounds occurs during both the day and U.S. Fish and Wildlife Service and Weber, 1995; Weber and Jennings, night. (USFWS), 2007; T. Savoy, CT DEEP, 1996; Moser et al., 1998) and was Larval Atlantic sturgeon (i.e., less pers. comm.). Atlantic sturgeon are a recently verified in the Roanoke River, than 4 weeks old, with total lengths (TL) long-lived, late-maturing, estuarine- North Carolina, and the Altamaha River, less than 30 mm; Van Eenennaam et al., dependent, anadromous species with a Georgia (Smith et. al., 2015; Ingram and 1996) are assumed to inhabit the same maximum lifespan of up to 60 years, Peterson 2016). There is also a growing areas where they were spawned and live although the typical lifespan is probably body of evidence that some Atlantic at or near the bottom (Ryder, 1888; much shorter (Sulak and Randall, 2002; sturgeon river populations have two Smith et al., 1980; Bain et al., 2000; Balazik et al., 2010). Atlantic sturgeon spawning seasons comprised of Kynard and Horgan, 2002; Greene et al., reach lengths up to 14 ft (4.27 m), and different spawning adults (Balazik and 2009). The best scientific information weigh over 800 pounds (363 kilograms Musick, 2015; Farrae et al., 2017). Since available for behavior of larval Atlantic (kg)). Many datasets demonstrate clinal the listings, additional evidence of fall sturgeon is described from hatchery variation in vital parameters of Atlantic as well as spring spawning has been studies. Upon hatching, larvae are sturgeon populations, with faster growth obtained for the Chesapeake Bay DPS of nourished by the yolk sac, are mostly and earlier age at maturation in more Atlantic sturgeon (Balazik et al., 2012; pelagic (e.g., exhibit a ‘‘swim-up and southern systems. Atlantic sturgeon Hager et al., 2014; Kahn et al., 2014). drift-down’’ behavior in hatchery tanks; mature between the ages of 5 and 19 Spawning typically occurs in flowing Mohler, 2003), and move away from years in South Carolina (Smith et al., water upriver of the salt front of light (i.e., negative photo-taxis; Kynard 1982), between 11 and 21 years in the estuaries and below the fall line of large and Horgan, 2002; Mohler, 2003). Hudson River (Young et al., 1988), and rivers (Borodin, 1925; Leland, 1968; Within days, larvae exhibit more between 22 and 34 years in the St. Scott and Crossman, 1973; Crance, 1987; benthic behavior until the yolk sac is Lawrence River (Scott and Crossman, Bain et al., 2000). The fall line is the absorbed at about 8 to 10 days post- 1973). Atlantic sturgeon generally do boundary between an upland region of hatching (Kynard and Horgan, 2002; not spawn every year. Multiple studies continental bedrock and an alluvial Mohler, 2003). Post-yolk sac larvae have shown that spawning intervals coastal plain, sometimes characterized occur in the water column but feed at range from 1 to 5 years for males (Smith, by waterfalls or rapids. Spawning sites the bottom of the water column (Mohler, 1985; Collins et al., 2000; Caron et al., are well-oxygenated areas with flowing 2003; Richardson et al., 2007). 2002) and 2 to 5 years for females water ranging in temperature from 13 °C The next phase of development, (Vladykov and Greeley, 1963; Van (55 °F) to 26 °C (79 °F), and hard referred to as the juvenile stage, lasts Eenennaam et al., 1996; Stevenson and bottom substrate such as cobble, hard months to years in brackish waters of Secor, 1999). Fecundity of Atlantic clay, and bedrock (Ryder, 1888; Dees, the natal estuary (Holland and sturgeon has been correlated with age 1961; Vladykov and Greeley, 1963; Scott Yelverton, 1973; Dovel and Berggen, and body size, with egg production and Crossman, 1973; Gilbert, 1989; 1983; Waldman et al., 1996; Shirey et ranging from 400,000 to 8 million eggs Smith and Clugston, 1997; Bain et al., al., 1997; Collins et al., 2000; Secor et per year (Smith et al., 1982; Van 2000; Collins et al., 2000; Balazik et al., al., 2000; Dadswell, 2006; Hatin et al., Eenennaam and Doroshov, 1998; 2012; Hager et al., 2014). Depth at which 2007; ASSRT, 2007; Calvo et al., 2010; Dadswell, 2006). The average age at fish spawn and water depth leading to Schueller and Peterson, 2010). Juvenile which 50 percent of maximum lifetime spawning sites may be highly variable. rearing habitat is that habitat necessary egg production is achieved is estimated Atlantic sturgeon in spawning condition for juveniles to grow, develop, and to be 29 years, approximately 3 to 10 have been tracked and captured at emigrate to the marine environment times longer than for other bony fish depths up to 27 m (Borodin 1925; Dees where they begin the subadult life stage, species examined (Boreman, 1997). 1961; Hatin et al., 2002; Balazik et al., eventually maturing into adults. Analysis of stomach contents for 2012; Hager et al., 2014). Juveniles occur in oligohaline waters adults, subadults (i.e., sexually Within minutes of being fertilized, the (salinity of 0.5 to 5 ppt) and mesohaline immature Atlantic sturgeon that have eggs become sticky and adhere to the waters (salinity of 5 to 18 ppt) of the emigrated from the natal estuary to the substrate for the relatively short and natal estuary during growth and marine environment), and juveniles temperature-dependent period of larval development. They will eventually (i.e., sexually immature Atlantic development (Ryder, 1888; Vladykov move into polyhaline waters (salinity of sturgeon that have not yet emigrated and Greeley, 1963; Murawski and 18–30 ppt), if available in the natal river from the natal estuary) confirms that Pacheco, 1977; Smith et al., 1980; Van estuary, before emigrating from the natal Atlantic sturgeon are benthic foragers den Avyle, 1984; Mohler, 2003). river estuary. Larger, presumably older,

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juveniles occur across a broader salinity (Vladykov and Greeley, 1963; Oliver et were made available on our regional range than smaller, presumably al., 2013). Web pages and comments were younger, juveniles (Bain, 1997; Shirey et The exact spawning locations for Gulf accepted during public hearings, and al., 1997; Haley, 1999; Bain et al., 2000; of Maine, New York Bight, Chesapeake via standard mail, facsimile, and Collins et al., 2000; Secor et al., 2000; Bay, Carolina, and South Atlantic DPS through the Federal eRulemaking portal. Hatin et al., 2007; McCord et al., 2007; Atlantic sturgeon are unknown but In addition to the proposed rules, the Munro et al., 2007; Sweka et al., 2007; inferred based on the location of correction notice for the proposed rule Calvo et al., 2010). freshwater, hard substrate, water depth, for the Carolina and South Atlantic The distribution of Atlantic sturgeon tracking of adults to upriver locations DPSs, maps of the proposed critical juveniles in the natal estuary is a and the behavior of adults at those habitat units, and the DIAs supporting function of physiological development locations, historical accounts of where our conclusions under section 4(b)(2) of and habitat selection based on water the caviar fishery occurred, capture of the ESA were made publicly available. quality factors of temperature, salinity, YOY and, in limited cases, capture of Twenty-one people attended the and DO, which are inter-related larvae and eggs. Spawning sites at public hearings for the proposed rule to environmental variables. In laboratory multiple locations within the tidal- designate critical habitat for the Gulf of studies with salinities of 8 to 15 ppt and affected river likely help to ensure Maine, New York Bight, and temperatures of 12 and 20 °C (53.6 and successful spawning given annual Chesapeake Bay DPSs of Atlantic 68 °F), juveniles less than a year old changes in the location of the salt sturgeon, either in-person or via (also known as young-of-year [YOY]) wedge. telephone, and we received 1,577 had reduced growth at 40 percent DO Public Comments and Our Responses responses to the request for public saturation, grew best at 70 percent DO comments on the proposed rule and saturation, and selected conditions that We requested comments on the supporting documents through supported growth (Niklitschek and proposed rule to designate critical Regulations.gov and by mail, including Secor, 2009 I; Niklitschek and Secor, habitat for the Gulf of Maine, New York over 1,000 form letters. Approximately 2009 II). Similar results were obtained Bight, Chesapeake Bay DPSs of Atlantic 40 people attended the public hearings for age-1 juveniles (i.e., greater than 1 sturgeon (81 FR 35701; June 3, 2016) for the proposed rule to designate year old and less than 2 years old), and on the proposed rule to designate critical habitat for the Carolina and which have been shown to tolerate critical habitat for the Carolina and South Atlantic DPSs of Atlantic salinities of 33 ppt (e.g., a salinity level South Atlantic DPSs of Atlantic sturgeon, and 354 public comments associated with seawater), but grow sturgeon (81 FR 36077; June 3, 2016) for were received on the proposed rule and faster in lower salinity waters a 90-day period. Following requests supporting documents. from the public, we re-opened the (Niklitschek and Secor, 2009 I; Allen et We reviewed all comments received public comment period for an al., 2014). For the conditions tested, the for substantive issues relevant to the additional 15 days (81 FR 66911; Sept. best growth for both age groups proposed critical habitat rules. Some 29, 2016), for a total comment period of occurred at DO concentrations greater comments resulted in changes between 105 days. Five public hearings were also than 6.5 mg/L (e.g., 70 percent DO the proposed and final designation. held on the following dates and in the saturation with salinity of 8 to 15 ppt Changes between the proposed and temperature of 12 and 20 °C). While following locations: 1. Thursday, July 21, 2016, 3 to 5 designations and final designation are specific DO concentrations at p.m., Gloucester, Massachusetts. highlighted in the ‘‘Summary of temperatures considered stressful for 2. Thursday, July 21, 2016, 6 to 8 Changes From the Proposed Rules’’ Atlantic sturgeon are not available, p.m., Gloucester, Massachusetts. section of this rule. The relevant public instantaneous minimum DO 3. Monday, June 20, 2016, 7 to 9 p.m., comments received, both written and concentrations of 4.3 mg/L protect Brunswick, Georgia. oral, are addressed below. We have survival of shortnose sturgeon at 4. Tuesday, June 21, 2016, 7 to 9 p.m., responded to the comments received on ° temperatures greater than 29 C (84.2 Charleston, South Carolina. the proposed rule for the Gulf of Maine, °F) (EPA, 2003). However, data from 5. Thursday, June 23, 2016, 7 to 9 New York Bight, and Chesapeake Bay Secor and Niklitschek (2001) show that p.m., Morehead City, North Carolina. DPSs of Atlantic sturgeon separately shortnose sturgeon are more tolerant of In addition to the public hearings, from our responses to the comments higher temperatures than Atlantic during which substantive comments on received on the proposed rule for the sturgeon, and the ‘‘high temperature’’ the proposed designations could be Carolina and South Atlantic DPSs of for Atlantic sturgeon is actually provided by the public, we held a Atlantic sturgeon because it would be considered 26 °C (78.8 °F) (Secor and public informational meeting prior to difficult for a commenter to identify his Gunderson, 1998). each public hearing in Massachusetts, or her individual comment and our Once suitably developed, Atlantic Georgia, South Carolina, and North response if we merged the comment sturgeon leave the natal estuary and Carolina. We also held public responses. However, we have assigned enter marine waters (i.e., waters with informational meetings in Annapolis, comments to major issue categories and, salinity greater than 30 ppt); this marks Maryland on July 13, 2016, and in where appropriate, have combined the beginning of the subadult life stage. Portland, Maine on July 18, 2016. These similar comments from multiple In the marine environment, subadults informational meetings reviewed the members of the public or referenced the mix with adults and subadults from purpose of designating critical habitat response to identical comments other river systems (Bowen and Avise, and answered procedural questions. We received on both proposed rules. We 1990; Wirgin et al., 2012; Waldman et did not accept public comment or received some comments related to the al., 2013; O’Leary et al., 2014). Atlantic answer substantive questions about the listing and DPS delineation and sturgeon travel long distances in marine areas proposed for designation at the comments critical of our final rule waters, aggregate in both oceanic and informational meetings; rather, we Implementing Changes to the estuarine areas at certain times of the provided information on the public Regulations for Designating Critical year, and exhibit seasonal coastal comment process. To further facilitate Habitat (81 FR 7414; February 11, 2016); movements in the spring and fall public participation, the proposed rules those comments are not relevant to this

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critical habitat designation and are not they are benthic fish, spending most of inform the presence or absence of addressed below. their lives well below the water surface, Atlantic sturgeon in the river. they do not school, they move within The lack of evidence for Atlantic Comments on the Gulf of Maine, New the estuary, and subadults and adults sturgeon presence in the Susquehanna York Bight, and Chesapeake Bay DPS spend only part of the year in estuarine based on the scientific studies or Proposed Critical Habitat Designations waters. recreational fishing in the river is more (81 FR 35701; June 3, 2016) There has been very little effort to likely the result of methods and gear Comments on Geographical Area detect the presence of Atlantic sturgeon that do not effectively capture sturgeon. Occupied in the Susquehanna River in recent Sturgeon tend to sink rather than float when exposed to electroshocking Comment 1: A commenter stated that times. Receivers were placed in the (Moser et al., 2000). Electroshocking we have not provided any evidence that Susquehanna River to detect conducted to retrieve other fish species Atlantic sturgeon occupied the acoustically tagged Atlantic sturgeon in often does not result in detection of Susquehanna River at the time the 2010 and 2011 but, at that time, we Atlantic sturgeon because the electric species was listed, or at any time in made it clear that an absence of current may only penetrate a few feet recent history. They stated that the most detections was not confirmation of from the surface of the water and not recent sighting of Atlantic sturgeon absence of the species in the river, given reach the bottom where sturgeon are occurred in 1987, nearly 25 years before the low number of Atlantic sturgeon most likely to occur. Although some the species was listed in 2012, and that that were acoustically tagged and the sturgeon have been detected during sighting occurred near the mouth of the limited number of receivers placed in the river below Conowingo Dam. electrofishing for other species, Susquehanna River rather than in the electroshocking is not an effective Susquehanna River. The commenter Fish behavior rather than fish abundance influences whether a means for detecting sturgeon presence. noted that Exelon monitored the Gillnet gear is only effective when Susquehanna River for sonic transmitter sturgeon enters a fish lift that was designed for a different fish species. selective for the size of sturgeon present, tagged sturgeons from other river and sturgeon can get snagged on Therefore, absence of Atlantic sturgeon systems (Delaware River, Potomac recreational hook gear but do not in the fish lift also does not equate to River) during 2010 and 2011 with fixed typically take a hook. Therefore, creel absence of Atlantic sturgeon in the river station acoustic telemetry receivers, and surveys of recreational fisheries are below a dam. Many of the rivers for no tagged Atlantic sturgeon were unlikely to provide evidence of sturgeon which we have more abundant recorded in the Susquehanna River in presence, particularly when the documentation of Atlantic sturgeon either year. In addition, they stated that recreational fisheries are targeting fish presence also have dams with fish lifts Atlantic sturgeon have not been caught species dissimilar to sturgeons (e.g., in (e.g., Connecticut, Penobscot, and Saco in the Conowingo Dam fish lift in 44 size, feeding characteristics). years of fish lift operations, there have Rivers), and only one Atlantic sturgeon Since the listing of the Chesapeake been no reports of anglers catching has been observed and documented in Bay DPS in 2012, increased effort to Atlantic sturgeon or observations of a fish lift (at the Holyoke Dam in the detect Atlantic sturgeon in the breaching Atlantic sturgeon in the Connecticut River (ASSRT 2007)). Pamunkey, Nanticoke, and Susquehanna River, and there are no The Maryland Reward Program relied Rappahannock Rivers has led to the records for Atlantic sturgeon in the upon reports of Atlantic sturgeon discovery of Atlantic sturgeon spawning Susquehanna River in the USFWS incidentally caught in fishing gear. The populations and sturgeon presence that tagging database or the Maryland Program operated when directed fishing were undetected before the listing. Department of Natural Resources reward for, and incidental capture of, Atlantic These include a spawning population in program database. sturgeon was prohibited and when the Pamunkey River (Hager et al., 2014; Our Response: Our regulations at 50 abundance of Atlantic sturgeon was Kahn et al., 2014), a likely spawning CFR 424.02 define ‘‘geographical area unknown and estimated to be low (thus population in the Nanticoke River, and occupied by the species’’ as ‘‘An area later necessitating listing under the detection of Atlantic sturgeon in the that may generally be delineated around ESA). The lack of reported captures of Rappahannock River. species’ occurrences, as determined by Atlantic sturgeon in the Susquehanna Comment 2: An industry trade group the Secretary (i.e., range). Such areas can be explained by any number of stated we inappropriately delineated the may include those areas used factors including whether: Fishing was ‘‘geographical area occupied’’ by the throughout all or part of the species’ life occurring in the Susquehanna when species as the entire ‘‘aquatic habitat cycle, even if not used on a regular basis Atlantic sturgeon were present, the gear (e.g., below the high tide line)’’ of (e.g., migratory corridors, seasonal type fished was conducive to catching inland freshwater areas that are habitats, and habitats used periodically, Atlantic sturgeon, or the fisherman currently accessible to the Atlantic but not solely, by vagrant individuals).’’ reported the capture. Similarly, to assess sturgeon. These commenters stated that The range of each DPS is informed by whether the absence of USFWS tagging we inappropriately included not just numerous lines of evidence including database records for Atlantic sturgeon areas where the species has actually the life history of Atlantic sturgeon, captures in the Susquehanna reflects been located, but instead we also tagging, tracking, and genetic analyses. absence of Atlantic sturgeon in the included wider areas around the Often at the time of designating critical Susquehanna River, a measure of the species’ occurrences and areas that may habitat, we do not have detailed amount of effort to search for, capture, be used only temporarily or periodically information or the same level of detail and tag Atlantic sturgeon in the by the species. They stated that ‘‘areas for every part of the species’ range. Susquehanna River must be provided. identified as occupied include vast However, the absence of collection or Based on the best scientific information areas where there is no evidence the sighting of Atlantic sturgeon in any part available, there was no directed effort to species even occurs, much less of their range does not equate to absence search for, capture, and tag Atlantic occupies.’’ The commenter states that of Atlantic sturgeon. Atlantic sturgeon sturgeon in the Susquehanna River. the Services’ Consultation Handbook can be difficult to detect when present Therefore, the absence of records in the provides that occupied critical habitat is in marine and estuarine waters because USFWS tagging database does not ‘‘critical habitat that contains

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individuals of the species at the time of ‘occupied’ habitat where the species is tags are not in the rivers throughout the the project analysis.’’ likely to be found promotes the ESA’s year, the number of Atlantic sturgeon Our Response: Our regulations at 50 conservation goals and comports with detected in the Piscataqua is very likely CFR 424.02 define the geographical area the ESA’s policy of ‘‘institutionalized less than the total number of Atlantic occupied by the species as an area that caution’’ (Id. at 1166–1167), and that sturgeon that actually occur in the may generally be delineated around ‘‘[t]he fact that a member of the species Piscataqua and as far upriver as the species’ occurrences (i.e., range), and is not present in an area at a given lowermost dams of the Cocheco and this may include those areas used instant does not mean the area is Salmon Falls Rivers. throughout all or part of the species’ life suitable only for future occupancy if the We identified the Piscataqua River cycle, even if they are not used on a species regularly uses the area’’ (Id. at and portions of the Salmon Falls and regular basis (e.g., migratory corridors, 1167). Cocheco Rivers as a potential critical seasonal habitats, and or habitats used For Atlantic sturgeon, we identified habitat area for the Gulf of Maine DPS periodically, but not solely by vagrant the geographical area occupied based on because the physical features are individuals). This is consistent with the species’ well-known anadromous present. We considered whether the past critical habitat designations (e.g., life history, including returning to natal identified area was essential to the Final Rule Designating Critical Habitat rivers to spawn, spawning behaviors, conservation of the Gulf of Maine DPS for Threatened Elkhorn and Staghorn and habitat common to sturgeon species and concluded that it was, given the Corals (73 FR 72210; November 26, and verified for Atlantic sturgeon, as capture of a large female Atlantic well as the need to protect spawning sturgeon with eggs, at the head-of-tide 2008): ‘‘We have long interpreted and reproductive habitat for population in the Salmon Falls River in South ‘geographical area occupied’ in the growth and conservation of the species, Berwick, Maine on June 18, 1990, thus definition of critical habitat to mean the among other factors. Some portion of demonstrating behavior consistent with range of the species at the time of listing each river population returns to its natal spawning was occurring in the system. (45 FR 13011; February 27, 1980)’’). The river to spawn every year, and if We also took into consideration the geographical area occupied as specified spawning occurs and is successful, limited number of other rivers with in this designation meets the regulatory young sturgeon use the natal river to spawning and rearing habitat in the Gulf definition, and our application of the forage, develop and mature every year. of Maine DPS, the continuing threats to term ‘‘geographical area occupied’’ to Comment 3: A state agency stated the DPS, the threats to the features of Atlantic sturgeon is appropriate. As the there may be habitat features conducive critical habitat, and the uncertainty for court in Arizona Cattle Growers Ass’n v. for Atlantic sturgeon reproduction and how much spawning and rearing habitat Salazar (606 F.3d 1160, 1164 (9th Cir. recruitment in the Piscataqua, Salmon is necessary to recover the Gulf of Maine 2010)) held, ‘‘[d]etermining whether a Falls, and Cocheco Rivers, but there was DPS. Together, this information species uses an area with sufficient no evidence that Atlantic sturgeon have supports our conclusion that the regularity that it is ‘occupied’ is a highly used New Hampshire estuaries and Piscataqua River, and portions of the contextual and fact-dependent inquiry. coastal rivers as spawning and nursery Salmon Falls and Cocheco Rivers, are Cf. Cape Hatteras Access Pres. Alliance habitat from at least 35 years of surveys, part of the geographical area occupied v. United States DOI, 344 F. Supp. 2d studies, etc. The commenter stated that by the Gulf of Maine DPS and these 108, 119–20 (D.D.C. 2004). Relevant recent evidence from acoustical tagging areas are essential to the conservation of factors may include how often the area (Micah Kieffer, USGS, personal the Gulf of Maine DPS. is used, how the species uses the area, communication, as cited in the We are not surprised that there have the necessity of the area for the species’ comment) leads to the conclusion that been very few incidental captures of conservation, species characteristics sturgeons spend only brief periods in Atlantic sturgeon in fisheries or research such as degree of mobility or migration, the Piscataqua River/Great Bay system surveys and studies conducted in the and any other factors that may bear on during longer movements between the Piscataqua River. We know from other the inquiry.’’ In claiming that the 1998 Merrimack and Kennebec Rivers. A river systems that capture of any of the Consultation Handbook provides that fisherman similarly stated that in all of Atlantic sturgeon life stages can be occupied critical habitat is that which is his fishing trips in the Piscataqua River difficult even when the proper gear for occupied by individuals of the species over the course of 20-plus years, he had capturing Atlantic sturgeon is used, and at the time of a project analysis, the never encountered Atlantic sturgeon in used at the time and in the area where commenter did not include the entire the Piscataqua River, and he does not Atlantic sturgeon are likely to occur. discussion about occupied critical believe that Atlantic sturgeon spawning Atlantic sturgeon populations in a habitat. As we explained more fully in or juvenile rearing occurs in the number of rivers were considered our Handbook, ‘‘[a] species does not Piscataqua, Salmon Falls, and Cocheco extirpated at one point, only later to have to occupy critical habitat Rivers. find that genetically unique populations throughout the year for the habitat to be Our Response: We disagree with these were present (e.g., the James River and considered occupied (e.g. migratory commenters’ assertions that Atlantic York River systems, the Connecticut birds).’’ The court in Arizona Cattle sturgeon do not occur in these River, the Nanticoke River, and Growers cited this language as waterbodies. The Piscataqua River as Marshyhope Creek). appropriately recognizing that ‘‘a well as the Cocheco and Salmon Falls Comment 4: A representative for a species need not be present Rivers downriver of their respective power operation on the Hudson River continuously for habitat to be lowermost dams are part of the stated that atypical passage or straying considered ‘‘occupied.’’ 606 F.3d at geographical area occupied by Atlantic is not enough to constitute critical 1165. The court rejected a narrow sturgeon. Recent evidence of their habitat, and critical habitat shall not interpretation of ‘‘occupied’’ based presence includes detection of tagged include the entire geographical area solely on documented ’’residence’’ of Atlantic sturgeon (M.Kieffer, USGS, which can be occupied by the individual animals, holding that pers. comm.). Because the number of threatened or endangered species. ‘‘[w]here data are inconclusive or where tagged Atlantic sturgeon represents only Our Response: We agree that it is habitat is used on a sporadic basis, a fraction of the total number of inappropriate to designate the entire allowing the FWS to designate as sturgeon, and receivers for detecting area occupied by a DPS as critical

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habitat. However, we have not done that al., 2000; Collins et al., 2000; Greene et have to know exactly why the listed for any of the Atlantic sturgeon DPSs. al., 2009; Balazik et al., 2012; Breece et species occurs in an area. We do, The geographical area occupied by the al., 2013). however, need to identify physical or New York Bight DPS of Atlantic The use of telemetry tags for Atlantic biological features that support the life sturgeon is a broad area that includes sturgeon and more widespread use of history needs of the species. The the Hudson River as far upriver as the receiver arrays has provided new commenters postulate that the sand Federal Dam near Albany, NY. The New information on Atlantic sturgeon waves provide resting and feeding areas York Bight DPS consists of all Atlantic spawning behavior and whether or for Atlantic sturgeon during spawning sturgeon spawned in the watersheds when staging occurs. In the James River, and feeding in the lower estuary. that drain into coastal waters, including some males moved straight to the However, no information was provided Long Island Sound, the New York Bight, hypothesized spawning ground without to support this theory and the literature and Delaware Bay, from Chatham, any apparent staging period while does not point toward evidence of Massachusetts to the Delaware- others occurred downriver in brackish feeding or resting during spawning. On Maryland border on Fenwick Island. water during the summer before moving the contrary, available references The range of the DPS in marine waters upstream in August or early September; suggest female Atlantic sturgeon make extends from Labrador, Canada to Cape still others occurred farther upriver for rapid upriver and downriver Canaveral, Florida, United States. The a period of time before the spawning movements during spawning and can area of the Hudson River that we are period (Balazik and Musick, 2015). completely leave the spawning estuary designating as critical habitat is, Given the various movement patterns, it and travel to other estuarine therefore, a specific area within the is not clear to what extent staging occurs environments, presumably for foraging. much broader geographical area or, for those fish that do appear to stage, Males move upriver and downriver of occupied by the DPS. whether it is essential for successful the spawning area during the spawning reproduction. Therefore, we have not season, and then move downriver at the Comments on Physical or Biological included specific staging areas as a end of the spawning season presumably Features (PBFs) physical or biological feature of Atlantic to rest and forage before leaving the Comment 5: A commenter stated the sturgeon critical habitat. However, we spawning estuary in the fall. At this critical habitat designation for Atlantic recognize new research may lead to time, we do not have sufficient sturgeon fails to identify any in-river better identification regarding whether, information to determine what life habitats that are important aggregation where, and when Atlantic sturgeon history needs sand waves may support. areas for Atlantic sturgeon. They also stage. Therefore, the feature addressing Sand waves are a common feature of stated that we designated in-river access includes open passage between the Hudson River and Delaware Bay as habitats where sturgeon congregate, the river mouth and spawning sites to well as other rivers and bays (e.g., see presumably for resting and energy support life history needs associated information for the Delaware Bay conservation, for both the southern DPS with reproduction such as staging, Benthic Mapping Project at http://www. of green sturgeon, and for Gulf sturgeon, resting, or holding of spawning dnrec.delaware.gov/coastal/dnerr/ and it is likely that Atlantic sturgeon condition adults. documents/benthic4plet.pdf, and Levin have a similar habitat requirement. Comment 6: Two commenters et al., 1992). The mapping images Our Response: While there are provided information on the presence of provided by the commenter for the similarities between all sturgeon Atlantic sturgeon in the Hudson River Hudson River depict dynamic wave species, there are also differences. The and in Delaware Bay in proximity to habitat and approximate spawning area proposed rule and the Impacts Analysis sand waves, postulating that sand wave for Atlantic sturgeon. Wave habitat is and Biological Information Source habitat provides the same function as depicted as occurring in a number of Document summarized the literature deep holes provide for green and Gulf areas. Some of these are in proximity to describing spawning behavior for male sturgeon, allowing Atlantic sturgeon to spawning areas and some are not. and female Atlantic sturgeon. Briefly, rest and feed during the spawning Similarly, the information provided by male Atlantic sturgeon in spawning season. According to the commenters, in the commenter for Delaware Bay depicts condition have been observed to stage in the Hudson River, sand waves were sand wave habitat in proximity to an more saline waters of the coastal estuary found in proximity to the Atlantic observed aggregation of Atlantic before moving upriver once the water sturgeon spawning areas. Side scan sturgeon. However, no information is temperature reaches approximately 6 °C sonar showed a high density of provided for Atlantic sturgeon presence (43 °F). They may spend weeks moving spawning size Atlantic sturgeon in sand in other areas of the Bay where sand upstream and downstream of the wave habitat and no sturgeon in sand wave habitat also occurs and does not presumed spawning area(s) before habitat without waves. A gill net set in occur. Therefore, the information moving back downriver to the lower proximity to the sand wave habitat had provided and the other available estuary and residing there until high catch rates of Atlantic sturgeon. information (i.e., published literature) outmigration in the fall (Smith et al., Similarly, in the Delaware Bay, do not support the commenter’s 1982; Dovel and Berggren, 1983; Smith, telemetry tagged Atlantic sturgeon were position that sand waves in the Hudson 1985; Bain, 1997; Bain et al., 2000; detected in high density in a relatively River and Delaware Bay support the life Collins et al., 2000; Hatin et al., 2002; small area (18.8 acres) within, and history needs of the New York Bight Greene et al., 2009; Balazik et al., 2012; bordering sand wave habitat. The DPS, and we have not included sand Breece et al., 2013). In contrast, commenters point out that habitat that waves as a physical or biological feature spawning females move upriver when provides for rest or cover has been of critical habitat for the New York temperatures are closer to 12 to 13 °C identified as an essential feature for Bight DPS of Atlantic sturgeon. (54 to 55 °F), return downriver relatively other fish species. Comment 7: A commenter stated that quickly, and may leave the estuary and Our Response: The commenters while the proposed designation travel to other coastal estuaries until provide new, intriguing information for includes soft-bottom habitats for outmigration to marine waters in the fall a possible association between Atlantic juvenile foraging and development, it (Smith et al., 1982; Dovel and Berggren, sturgeon and sand wave habitat. When fails to expressly recognize the need to 1983; Smith, 1985; Bain, 1997; Bain et designating critical habitat, we do not protect soft-bottom areas that serve as

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resting and feeding habitats for vessels. One commenter suggested it determine the location of PBFs essential spawning adults. The commenter called appeared we had merely designated to spawning. Smaller specific areas upon us to designate soft-bottom areas entire rivers from the confluence of the within each unit could not be identified of the Hudson River for resting and Atlantic Ocean back to either some because the submerged nature of the feeding habitats for spawning adults, major tributary or some large essential PBF, the limits of available particularly the areas with sand waves, impoundment or impassable boundary information on the distribution of the as critical habitat. upstream. Several commenters PBFs, the varying distribution of the Our Response: Soft-bottom areas of suggested that areas should not be PBFs from time to time, and limits on the Hudson River are part of the Hudson designated as critical habitat because mapping methodologies make it River critical habitat unit based on the environmental conditions in certain infeasible to define the specific areas best available scientific information that stretches of rivers are poor and would containing the PBFs more finely than soft bottom substrates and the not support the PBFs. Similarly, other described in this rule. The presence of transitional salinity zone are needed for commenters stated we had failed to manmade structures that do not provide juvenile rearing. We are not aware of limit the mapped areas in our proposed the PBFs within a specific area being any information that indicates Atlantic designation to areas where we believe designated as critical habitat does not sturgeon spawning adults feed or rest in the PBFs occur. render the boundaries of the specific spawning areas, and the commenters Our Response: We disagree. As we area invalid; we have explained that the did not provide any such information. explained in our final rule, PBFs must be in a project area for it to Available references indicate spawning Implementing Changes to the function as critical habitat. While we female Atlantic sturgeon make rapid Regulations for Designating Critical agree that manmade structures upriver movements to spawning areas Habitat (81 FR 7414; February 11, 2016), themselves (e.g., an outfall pipe, dock, and quickly depart spawning areas in each designation we will identify pier, navigational buoy) cannot and do while males move upriver and specific areas of critical habitat ‘‘at a not contain the PBFs and therefore are downriver of the spawning area during scale determined by the Secretary to be not part of the critical habitat the spawning season. If new information appropriate.’’ We are not required to designation, the mere presence of such on the use of soft substrate by spawning a manmade structure in an area does not make determinations at an infinitely adults becomes available, it will be mean that the area does not contain one fine scale, and we need not determine considered by Federal agencies or more PBFs or that these areas are not that each square inch, square yard, acre, assessing the effects of proposed actions important to the species. We have or even square mile independently on the Hudson River critical habitat, clarified the point in regulatory text that meets the definition of critical habitat. and by us as the consulting agency in manmade features that do not provide We have discretion to determine the ESA section 7 consultations. More the PBFs are not essential to the species appropriate scale for the analysis, which details of our consideration of sand and are not included in critical habitat. is informed by, among other things, the wave habitat as a physical or biological We believe our designation is consistent life history of the species, the scales at feature is provided in our response to with our regulations and based on the Comment 6. As noted there, the best which data are available, and biological best scientific information available for scientific information available does not or geophysical boundaries (such as Atlantic sturgeon DPSs. currently support sand waves as a watersheds). Our regulations at 50 CFR Comment 9: Two commenters stated physical or biological feature for 424.02 also indicate that PBFs may be we failed to consider in a complete and Atlantic sturgeon critical habitat. ephemeral or dynamic, and we may meaningful way, the role certain aspects Comment 8: An industry trade group designate areas with ephemeral or of aquatic chemistry play on asserted that we must revise our dynamic PBFs if the other applicable determining whether a river has suitable proposed designation to explain how requirements of critical habitat spawning habitat. The commenters each specific critical habitat unit to be designations are met, and if there are suggested we should have considered designated contains the PBFs essential documented occurrences that a pH and levels of calcium and to the conservation of the species, particular habitat type is in the area and magnesium ions. They suggest these suggesting that our approach should be there is a reasonable expectation of that chemical characteristics can determine the same as that taken in the designation habitat occurring again (81 FR 7414; whether Atlantic sturgeon will spawn in of critical habitat for the Southern DPS February 11, 2016). As we a particular reach of river, and thus, it of green sturgeon (74 FR 52300; October acknowledged in the proposed rule, is crucial that these features are given 9, 2009). They also suggested our there are large areas of most rivers special management consideration in proposed designation is overly broad, where data are still lacking. The future section 7 consultations and, if improperly used ‘‘ephemeral reference available data also represent a snapshot need be, protected accordingly. points,’’ and is unsupported by facts or in time, and the exact location of a PBF Our Response: The literature on science. The commenters suggested we may change over time (e.g., water depth Atlantic sturgeon has not typically identified and proposed to designate fluctuates seasonally, as well as reported pH, calcium, and magnesium sweeping areas of occupied habitat that annually, and even hard substrate may levels for rivers where Atlantic sturgeon undoubtedly capture many areas that do shift position). Although the PBFs may spawn. For example, in their review of not have, and likely never will have, vary even at the same location, if any of essential Atlantic sturgeon spawning physical or biological characteristics the available data regarding a particular habitat in Virginia, Bushnoe et al. (2005) essential for the conservation of the PBF fell within the suitable range (e.g., reported pH for waters of the James, species, noting that the designations salinity of 0–0.5 ppt or hard substrate York, Pamunkey, Mattaponi, and cover manmade areas that they state are [gravel, cobble, etc.]), we considered Rappahannock Rivers where they not important to the species, such as that the essential PBF is present in the anticipated Atlantic sturgeon spawning ‘‘manmade features’’ below the mean area. When data were not available for could occur. However, with respect to high water mark that cannot or would certain rivers or portions of occupied other water parameters, they noted not be accessed by the species (e.g., rivers, we used our general knowledge available water quality data for the outfalls, enclosures, quays) and of Atlantic sturgeon spawning and James River measured calcium industrialized areas used by ocean-going applied river-specific information to carbonate concentration, not calcium

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concentration, as an indicator of not readily available to the public. Thus, examples provide context, but do not hardness. Therefore, they could not we determined there was not enough establish static, exclusive values for the directly compare the measured calcium information for us to include the essential physical feature. carbonate concentrations with reported specific water quality parameters The dissolved oxygen levels and calcium concentrations measured in mentioned by the commenter as water temperature values set forth in the other rivers where Atlantic sturgeon essential PBFs for any DPS of Atlantic proposed rules for the Atlantic Sturgeon spawn. Conductivity was measured in sturgeon. DPSs were examples based on the best the Rappahannock River, but neither Comment 10: An association of available information for conditions in hardness or conductivity measurements municipal wastewater agencies stated different rivers occupied by Atlantic were available for the Pamunkey River that the preamble of the proposed rule sturgeon and observed responses of or Mattaponi River. Recent publications for the Gulf of Maine, New York Bight, sturgeon to these variables. Water regarding Atlantic sturgeon spawning and Chesapeake Bay DPS properly quality factors of temperature, salinity for the Chesapeake Bay DPS of Atlantic explains that ‘‘specific oxygen and dissolved oxygen are inter-related sturgeon (e.g., Balazik et al., 2012; Hager concentration and temperature values environmental variables. Dissolved et al., 2014) do not include measures of are provided as examples and guidance’’ oxygen concentrations in water can water pH, calcium, or magnesium in but the proposed rule omits this key fluctuate given a number of factors spawning areas. language from the regulatory text. The including water temperature (e.g., cold We considered the information commenter believes the regulatory text water holds more oxygen than warm should include this explanation or, water) and salinity (e.g., the amount of provided by the commenters in the alternatively, the examples of the water oxygen that can dissolve in water report they provided with their feature characteristics should be decreases as salinity increases). This comments and references cited within removed from the final rule or be made means that, for example, the dissolved that report. Unfortunately, the report more specific to the spawning and oxygen levels that support growth and itself does not provide any new subsequent stages of development of the development will be different at information regarding pH and levels of Atlantic sturgeon in the specific habitats different combinations of water calcium and magnesium ions. The described in the proposed rule. temperature and salinity. Similarly, the report mentions a 1976 study that Our Response: We do not provide dissolved oxygen levels that we would indicated spawning of the European explanations of the regulations in the expect Atlantic sturgeon to avoid would Atlantic sturgeon had been successful in regulatory text. The use of ‘‘e.g.’’ in the also vary depending on the particular the Rione River of the Russian Caucasus regulatory text informs the reader that water temperature and salinity. As when the pH ranged from 7.4–7.6. The the DO level and water temperature are dissolved oxygen tolerance changes report also states that a pH level of 6.8– provided only as guidance, and these with age, the conditions that support 7.7 is acceptable to various species of are not the only values for either DO or growth and development and likewise, sturgeon (Holcik et al., 1989), but temperature that are suitable for all the dissolved oxygen levels that would continues to state there is no specific Atlantic sturgeon age classes addressed be avoided, change. This combination of research on pH levels appropriate for by the PBFs. factors makes it such that we cannot Atlantic sturgeon. Beyond this, no Comment 11: A commenter stated the identify a single set of dissolved oxygen, further conclusions regarding pH and proposed rule for the Carolina and water temperature and/or salinity Atlantic sturgeon were made. The South Atlantic DPSs also frames the conditions as optimal or suboptimal for provided report also briefly mentioned features as ‘‘optimal’’ and ‘‘suboptimal’’ any of the DPSs. calcium and magnesium ions. It states: and recommended that we ‘‘revise Part Like salinity and dissolved oxygen, ‘‘Salinity was 0.4 psu, which is on the (a)(4)(iii) of the proposed rule for the water temperature fluctuates in the high side of Ca[lcium] and Gulf of Maine, New York Bight, and dynamic rivers and estuaries used by M[a]g[nesium] ion levels present in Chesapeake Bay DPSs’’ to frame the Atlantic sturgeon. The scientific rivers where Gulf Sturgeon spawn features as optimal and suboptimal. literature for Atlantic sturgeon does not successfully (Ken Sulak, pers. comm. to Our Response: Upon reading the always include the water temperature B. Kynard, 15 Aug 2016). Specific comment, we realized that framing the where Atlantic sturgeon are detected or acceptable levels of salinity for gametes example of dissolved oxygen and captured. There may also be differences and eggs of Atlantic sturgeon are not temperature values as ‘‘optimal’’ and in temperature tolerance of Atlantic known and are not discussed by the ‘‘suboptimal’’ can be misinterpreted as sturgeon that originate from different Atlantic Sturgeon Status Review Team establishing specific, exclusive values. rivers, and differences in temperature (ASSRT 2007) or in the preamble to Since these values were meant to be tolerance within the same river NMFS’ proposed designation. However, examples of the numerous possible depending on the life stage. Therefore, based on Gulf Sturgeon tolerance and combinations of dissolved oxygen, while we generally know the ranges of Cherr and Clark (1985), the levels of water temperature, and salinity essential water temperature and dissolved oxygen Ca[lcium] and M[a]g[nesium] ions in the to Atlantic sturgeon conservation, we in which Atlantic sturgeon occur, we Ocklawaha River should not be a did not revise the language for the Gulf cannot identify a single ‘‘best’’ water problem for egg fertilization or egg of Maine, New York Bight, and temperature or dissolved oxygen level rearing of sturgeons.’’ Beyond this Chesapeake Bay DPSs of Atlantic for all Atlantic sturgeon, in all rivers, discussion of calcium and magnesium, sturgeon to frame the features as under all circumstances. no further information is provided ‘‘optimal’’ and ‘‘suboptimal.’’ This is We stated in the preamble of the regarding the relationship of these ions because there is not one single DO level proposed rule for the Gulf of Maine, to successful spawning of Atlantic or temperature range that is best for New York Bight, and Chesapeake Bay sturgeon. The report provided by the Atlantic sturgeon in terms of habitat DPSs that, ‘‘Specific areas designated as commenters also cited additional avoidance. We did revise the language critical habitat based on the four literature that may discuss these water for the Carolina and South Atlantic features are not expected to have water quality parameters. However, we DPSs of Atlantic sturgeon by replacing with oxygen concentration of 6 mg/L attempted to acquire these references the terms ‘‘optimal’’ and ‘‘suboptimal.’’ and the specific water temperatures at and were unable to because they were The new phrases convey that the all times and within all parts of the

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area.’’ We similarly stated for the juveniles) may avoid areas based on one presently under special management or example in the proposed rule for the DO level while older life stages (e.g., protection for Atlantic sturgeon. The Carolina and South Atlantic DPSs of subadults or adults) may avoid areas commenters acknowledge we have Atlantic sturgeon that, ‘‘Appropriate based on a different DO level. The identified a number of initiatives that temperature and oxygen values will example provided in the regulatory text could protect Atlantic sturgeon but vary interdependently, and depending in the proposed rule for the Gulf of believe we must actually assess these on salinity in a particular habitat.’’ Maine, New York Bight, and initiatives to determine whether they Thus, we believe the terms ‘‘optimal’’ Chesapeake Bay DPSs of Atlantic are sufficient and determine what and ‘‘suboptimal’’ inadvertently sturgeon is just one example. We have further management actions may benefit conveyed a different meaning. not included a framework for each from critical habitat designation. The Comment 12: A commenter critical habitat area or a natural commenters go on to state we should recommended that we revise the condition provision. However, we agree consider each feature and specific area guidance for DO concentrations and that these should be considered when proposed and assess current temperature values provided in the Federal agencies are determining management measures in place to make proposed rule to be consistent with whether a proposed Federal agency an actual determination as to whether existing U.S. Environmental Protection action may affect designated critical special management may be needed in Agency Clean Water Act water quality habitat for the Atlantic sturgeon DPSs, the reasonably foreseeable future, and if criteria applicable to the Chesapeake and considered by us when we are so, what that management would be, Bay Watershed. The commenter further consulting on Federal agency actions. and how the critical habitat designation stated the proposed regulatory language See our responses to Comments 83, 84 would further that management. The establishing a DO concentration of 6 and 85 for more information on the commenters conclude that our mg/L and a maximum temperature of 30 water quality feature for the Carolina discussion of special management ° C for juvenile rearing habitat is and South Atlantic DPSs of Atlantic considerations is limited to general inconsistent with existing water quality sturgeon. discussion regarding how barriers, water criteria. The commenter also stated that withdrawals, and dredging can the proposed rule should evaluate and Comments on Special Management Considerations or Protection generally affect water flow, quality, and address existing conditions in the depth and/or alter hard substrate, and waters for the features which will Comment 13: A commenter stated the that we have made non-specific dictate where to designate critical proposal does not specify what ‘‘special assertions that special management for management considerations or habitat. This framework will provide a the essential PBFs may be required ‘‘as protections’’ are appropriate or necessary reference for both the agency a result of global climate change.’’ and commenters from which the true necessary for the conservation of implications of the proposed habitat Atlantic sturgeon in all and/or each Our Response: We disagree. When components can be evaluated. For specific DPS. Given the areal extent of determining whether PBFs may require example, the proposed rule provides the proposed designation and the special management considerations or that temperature between 13 °C to 26 °C potential for consultation on numerous protection, we do not base our decisions is optimal for spawning habitat, but and varied actions (water use, on whether management is currently in there is no indication of how that wastewater discharges, dredging, etc.), place or whether that management is temperature range compares to the the final rule needs to be more specific adequate (81 FR 7414; February 11, ambient temperature of the waters regarding the special management 2016). In Center for Biological Diversity themselves. In other words, does the considerations or protections that may v. Norton, 240 F.Supp. 2d 1090, 1096– proposed critical habitat meet the be required for all or specific DPSs. 1100 (D. AZ, 2003), the court rejected habitat component for temperature most Our Response: Special management reading the ESA to mean that if of the time, some of the time, etc. considerations or protections are the adequate management or protections are Second, the proposed rule must include methods or procedures useful in already in place, then an area cannot a natural condition provision to reflect protecting the PBFs essential to meet the definition of critical habitat natural instream temperature and DO conservation of listed species. We because special management levels which are outside of the provided information in the proposed considerations or protections are not temperature and DO features in the rule for why the PBFs essential to the required (‘‘Defendant’s construction of proposed rule. Where ambient conservation of each DPS may require ‘critical habitat’ also adds the term temperature and/or DO is outside of special management or protection. This ‘additional’ to the statute. As Defendant these levels, the natural condition must provision of a designation does not stated in its final rule, ‘Additional control. Any regulatory requirements establish measures that may be special management is not required if must be targeted toward the natural recommended or required during adequate management or protection is condition and not critical temperature/ section 7 consultation, such as RPMs already in place. . .’ There is absolutely dissolved oxygen elements that are not and terms and conditions. Our impacts nothing in § 1532, or its implementing naturally present. analyses and 4(b)(2) report describe the regulations, to support Defendant’s Our Response: The water quality types of measures that might be required inclusion of ‘additional.’ As such, features are a physical feature essential to address adverse impacts to the PBFs Defendant’s construction of the ‘critical to the corresponding Atlantic sturgeon for federal actions expected to require habitat’ definition is impermissible and DPSs. As discussed in our response to consultation. contrary to law.’’) Additionally, we are Comment 11, because DO and Comment 14: An industry trade group not required to determine if a PBF temperature vary interpedently based on believes we failed to provide any currently requires special management local environmental conditions, the DO assessment of current management or considerations, or to determine what and temperature values provided in the protections in place and whether those that management would be, and how proposed rules are provided as are adequate for the conservation of the critical habitat designation would examples only. For example, the earliest Atlantic sturgeon. The commenters further that management. We are only life stages are the most sensitive to DO claim we must consider whether any of required to make a determination that a levels. Therefore, earlier life stages (e.g., the proposed critical habitat units are PBF may require special management

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considerations or protection (81 FR or protection. We only designate critical the Regulations for Designating Critical 7414; February 11, 2016). Consequently, habitat when the PBFs essential to Habitat (81 FR 7414; 7426; February 11, we assessed the need for special conservation of the listed species may 2016), in those circumstances where the management considerations for each require special management best scientific data available indicate PBF in the proposed rule and identified considerations or protections. If we that a species may be shifting habitats numerous actions or natural factors that identify PBFs essential to the listed or habitat use, we may include specific could adversely impact each PBF, as is species but those features do not require areas accommodating these changes in a required by the ESA (‘‘Because the special management or protection, then designation, provided we can explain emphasis in the requirement is on the we do not designate critical habitat why the areas meet the definition of word ‘may,’ the evidence shown by the based on those PBFs. critical habitat. No information is Service supports the reasonable The purpose of designating critical currently available, and none was conclusion that some special habitat is to prevent the destruction or provided by the commenter, that management considerations or adverse modification of the habitat as a indicates any of the Atlantic sturgeon protection may be needed in the future result of Federal activities. Section DPSs may be shifting habitats or habitat to protect the sea ice habitat PCE 7(a)(1) of the ESA requires Federal use in response to the effects of climate [primary constituent element]. However, agencies to use their authorities in change. For example, Breece et al. neither the Service nor the ESA have to furtherance of the purposes of the ESA (2016) projected how habitat use by be the vehicles by which the procedures (i.e., aid in the conservation of listed adult Atlantic sturgeon of the Delaware or actions involved in the species). However, there is not a River could shift in response to climate considerations or protection are requirement that Federal agency actions change, but did not provide evidence accomplished. The Service has shown improve or create habitat for ESA-listed that Atlantic sturgeon are, or may be, that someday, not necessarily at this species. shifting habitats or habitat use in the time, such considerations or protection Comment 16: Commenters requested Delaware River as a result of climate may be required. In other words, the that we include language to address change. We are not aware of other Service has shown that it is within the known, significant, and growing uses publications that indicate that any DPS realm of possibility that such that will adversely impact Atlantic of Atlantic sturgeon is shifting habitats considerations or protection may be sturgeon habitat in the Hudson River. or habitat use in response to the effects needed now or in the future. Our Response: For critical habitat of climate change. Furthermore, the Service does not have designations we identify activities that The commenter did not include any to identify the source of such may necessitate special management or riverine-specific information regarding considerations or protection, merely protection of the PBFs. We have the areal influence of changes to that the considerations or protection provided this information for the PBFs salinity, temperature and DO, or sea may be necessary in the future. For identified for the critical habitat for the level rise. We are designating as critical example, the evidence in the record Gulf of Maine, New York Bight, and habitat the river areas that capture the showing that sea ice is melting and that Chesapeake Bay DPSs. We cannot varying distribution of the PBFs and it will continue to melt in the future, foresee every activity that would that are appropriate to encompass the perhaps at an accelerated rate, is more necessitate special management or habitat essential for the conservation of than enough proof that protection may protection of the PBFs. However, we the species. The designation includes all be needed at some point’’ (Alaska Oil believe the list of activities provided by habitat required for reproduction and and Gas Ass’n v. Salazar, 916 F. Supp. us is comprehensive enough to provide recruitment essential for the recovery of 2d 974, 990–992 (D. AK 2013), adequate notice on which activities may the DPSs, and reflects consideration of (Reversed on other grounds and affect critical habitat. The impact of in-river changes that may result from remanded by Alaska Oil & Gas Ass’n v. Federal agency actions on the critical climate change (e.g., temperature, salt- Jewell, 815 F.3d 544 (9th Cir. 2016)). habitat features are assessed through water intrusion, etc.). We did consider We also disagree with the ESA section 7 consultation. the presence of the PBFs in each river, commenters’ characterization that we Comment 17: One commenter and the variability in the salt wedge made non-specific assertions regarding requested that we include ‘‘clear seasonally and annually that influences the special management needs of the guidance for considering the effects of a where the Atlantic sturgeon life stages PBFs that may be necessary as a result changing climate on critical habitat occur in the estuary, and we of global climate change. The proposed designation for species recovery in the accommodated for these shifts in the rule specifically identifies the impact final rule.’’ They requested we consider critical habitat designation. from global climate change’s impacts to ‘‘projected changes to salinity, We considered whether any water temperature and DO, as potential temperature and DO, including changes designations of unoccupied habitat were threats to the survival and recovery of in sea level rise.’’ They further essential for the conservation of the Gulf Atlantic sturgeon in the southeastern requested that we document the extent of Maine, New York Bight or United States. that climate change was considered Chesapeake Bay DPSs because of the Comment 15: A commenter asked if when assessing the need for the function they are likely to serve as the objective of the special management inclusion of currently unoccupied climate changes, and we determined considerations or protections is to create habitat in the final rule. there were no such areas. We will optimal habitat, specifically, to create Our Response: We acknowledge continue to review Atlantic sturgeon the physical features described in climate change is likely a factor habitat needs as new information about § 226.225(a)(1) of the proposed rule, contributing to the possible need for potential effects from climate change even if those features do not currently special management considerations or becomes available. Consistent with exist. protection for the PBFs, and we NMFS guidance in the context of Our Response: The answer to this recognize that climate change may affect individual section 7 consultations, we question is no. Critical habitat is based the availability of some PBFs to will consider how climate change on the presence of PBFs essential to the sturgeon in some areas. As discussed in interacts with a proposed action’s conservation of the listed species and the response to comments for our effects on the PBFs in assessing an which may require special management regulations, Implementing Changes to action’s impacts on the critical habitat’s

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ability to support the species’ recovery. diadromous fish habitat, and the 2012 estuarine or marine areas as critical These analyses will necessarily be case- listing rule for the Gulf of Maine, New habitat due to insufficient data and that by-case and dependent on the action, York Bight, and Chesapeake Bay DPSs the best available scientific information environmental conditions at the time in (77 FR 5880; February 6, 2012) of supports identification of PBFs in the affected river (including projected Atlantic sturgeon reviewed historical estuarine and marine environments that changes from climate change, if and current use of rivers within the are essential to Atlantic sturgeon relevant), and the status of the species. range of each DPS. We have considered conservation. These commenters said Comment 18: An industry trade group the life history, status, and conservation that a growing body of research has indicated we failed to map potential needs information in these reviews, the identified critical feeding and seasonal threats to Atlantic sturgeon (e.g., cited literature, and new literature for aggregation sites, and that the sites manmade structures, dredging areas). each DPS (e.g., Wippelhauser and identified to date should be designated This industry trade group also noted Squiers, 2015 for the Gulf of Maine DPS; as critical habitat. The commenters that we did not include an exception Breece et al., 2013 for the New York stated there is a scientific consensus from critical habitat for manmade Bight DPS; Hager et al., 2014 for the that Atlantic sturgeon use marine waters structures in the regulatory language for Chesapeake Bay DPS). We have of particular depths as migration the Gulf of Maine, New York Bight, and concluded that unoccupied habitat is corridors; the commenters asserted that Chesapeake Bay DPSs. not essential to the recovery of the Gulf available information supports the Our Response: Threats to the species of Maine, New York Bight, and contention that all five DPSs use the were identified in both the Listing Rules Chesapeake Bay DPSs because Atlantic same narrow migration corridor and (77 FR 5880; February 6, 2012 and 77 sturgeon reproduction and rearing known aggregation sites. The FR 5914; February 6, 2012) and the habitat for each DPS is available commenters stated that water depth, Status Review (ASSRT, 2007). There is downriver of dams or in rivers that are available prey, substrates, temperature, no requirement to map the existence of not dammed, and the boundaries of the salinity and seascapes are factors threats to the species in a critical habitat critical habitat areas take into correlated with, and that influence, designation. Information on activities consideration the seasonal and annual Atlantic sturgeon use of specific that may affect critical habitat is variations in the location of the salt estuarine and marine habitats as feeding properly characterized in the impact wedge that influences where Atlantic or seasonal (winter, summer) analyses. We appreciate the comment sturgeon life stages occur within the aggregations, and migratory corridors, noting that we did not include an estuary as well as any potential shifts and that these features may require exception from critical habitat for that may occur as a result of climate special management considerations or manmade structures that do not provide change. Therefore, we are not protection. The commenters stated that the PBFs for northeastern DPSs. This designating unoccupied habitat for these our regulations, Implementing Changes was an oversight, as we did include the DPSs. to the Regulations for Designating exception for the Carolina and South We agree that presence of a barrier Critical Habitat, (81 FR 7414; February Atlantic DPSs. We have now included does not necessarily constitute the 11, 2016) support the use of generally- and clarified this exception for all five upstream extent of critical habitat; defined PBFs or an ecosystem approach. DPSs. however, in the case of the Gulf of Finally, the commenters discussed our Comments on Designation of Maine, New York Bight, and previous critical habitat designations for Unoccupied Critical Habitat Chesapeake Bay DPSs of Atlantic green and Gulf sturgeon as valid models sturgeon, the barriers included to denote for designating estuarine and marine Comment 19: A commenter asked that the upstream limit of the designation are areas as critical habitat for Atlantic the final rules expand on the the same designators as the upstream sturgeon. documentation for upstream and limit of the area occupied and therefore downstream critical habitat boundaries are appropriate in this case. We Our Response: We reconsidered the of the critical habitat units and identify recognize that the upstream limits of the information available, but reached the unoccupied habitat essential to the area occupied at the time of listing is same conclusion that we cannot identify conservation of a particular DPS. The not necessarily the historical upstream critical habitat for adults or subadults of commenter noted that many of the limit (e.g., there is historical reference to any of the five Atlantic sturgeon DPSs upstream critical habitat boundaries are the presence of sturgeon below Mohawk in marine or nearshore estuarine waters defined by dams or locks, and that Falls which is upstream of the modern- at this time. We agree that the regulatory presence of a barrier, in and of itself, day upstream limit of Atlantic sturgeon definition of PBFs is intentionally broad should not constitute the upstream in the Hudson River); however, we have because we cannot predict what species extent of critical habitat. As one of the determined that currently unoccupied will be listed in the future, and what objectives of the rule is to ‘‘increase the habitat is not essential for the Gulf of features that support the life history abundance of each DPS by facilitating Maine, New York Bight, and needs of those species will be necessary increased successful reproduction and Chesapeake Bay DPSs. Additionally, for designating their critical habitats. recruitment to the marine barriers that occur at a critical habitat However, as described in the response environment,’’ the commenter suggested boundary provide an easily recognizable to comments for our regulations, revisiting consideration of these reaches landmark for where critical habitat Implementing Changes to the as essential, but currently unoccupied begins or ends. Non-ephemeral Regulations for Designating Critical habitat. reference points (e.g., dams, bridges) can Habitat (81 FR 7414; February 11, 2016), Our Response: Section 3(5)(A) of the be used in a textual description of the ‘‘we need to clearly articulate in our ESA allows for consideration and boundaries of critical habitat. proposed and final rules designating inclusion of unoccupied habitat in a critical habitat for each species how the critical habitat designation if such Comments Designating Specific River essential features relate to the life- habitat is essential for conservation of Units or River Areas history and conservation needs of the the species. The 1998 and 2007 status Comment 20: Several environmental species. This type of specificity will be reviews for Atlantic sturgeon, ASMFC’s organizations stated that we incorrectly in the individual proposed and final 2009 review of Atlantic coast claimed that we could not designate rules designating critical habitat for

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each species.’’ Thus, while prior features for Atlantic sturgeon prey or, within the Mid-Atlantic Bight, occurring designations for other species may because Atlantic sturgeon are as far south as Delaware for the late fall provide important background, critical opportunistic foragers, the sturgeon to early winter and then as far south as habitat designations are specific to happen to be feeding over these the area off Chesapeake Bay for the particular species, their life history substrate types because they are latter part of the winter. The data do not traits, habitat and resource uses, and ubiquitous, and we lack information to suggest movement from the river to a information available for that species. define prey, substrates or feeding areas specific overwintering area where the Some of the literature available for more specifically for Atlantic sturgeon. fish reside throughout the winter. The Atlantic sturgeon uses the term ‘‘critical We cited in the preamble of the available information for where Atlantic habitat’’ in reference to areas where proposed rules the literature that sturgeon occur in the winter also Atlantic sturgeon occur. However, the identifies Atlantic sturgeon aggregation includes evidence of sturgeon in marine literature is not applying the term areas. The term ‘‘aggregation’’ as it is waters off estuaries where they were ‘‘critical habitat’’ as it is defined in the used in the literature for Atlantic ESA. Similarly, the word ‘‘essential’’ sturgeon is not defined by any particular detected in the fall, sturgeon making has been used in the literature, but it is quantitative measure. The number of long migrations along the coast to not used in the same context as it is in areas described in the literature as an southern coastal waters, sturgeon the critical habitat regulations. The ‘‘Atlantic sturgeon aggregation area’’ possibly overwintering in an estuary, Background of our regulations (81 FR demonstrates the ubiquitous nature of and at least one sturgeon moving in and 7414; February 11, 2016) explains that Atlantic sturgeon in the marine range as out of a Gulf of Maine estuary during ‘‘[t]he purpose of critical habitat is to well as the liberal use of the term for the winter (Laney et al., 2007; Dunton identify the areas that are essential to characterizing the presence of Atlantic et al., 2010; Oliver et al., 2013; Dunton the species’ recovery.’’ The explanation sturgeon in an area. For example, the et al. 2015; Taylor et al. 2016; C. Hager, makes clear that critical habitat is the commenters referred to literature Chesapeake Scientific, pers. comm.; T. specific area(s) essential to species identifying Atlantic sturgeon feeding Savoy, CT DEEP, pers. comm.; G. recovery. areas in the Bay of Fundy and Long Zydlewski, Univ. of Maine, pers. We reviewed the critical habitat Island Sound. Our background comm.). Because this information is designations for the Southern DPS of information cited to literature conflicting, we could not determine green sturgeon and for Gulf sturgeon in describing other Atlantic sturgeon whether or where overwintering areas the event there were similarities in the foraging areas, including areas with are essential to one or more of the life history of sturgeon species that mud bottom, gravelly-sand substrate, Atlantic sturgeon DPSs. could inform the essential PBFs for the and sand substrate. Stein et al. (2004) We cannot designate critical habitat Atlantic sturgeon DPSs. Marine waters noted that sturgeon were most often were designated for Gulf sturgeon and incidentally captured over gravelly-sand based on the presence of the species the Southern DPS of green sturgeon and sand substrate and suggested that alone. Therefore, while we acknowledge based on information that certain their presence was associated with there is literature that identifies marine waters were a migratory/ foraging. However, Stein et al. (2004) aggregation areas where Atlantic connectivity corridor for subadult and also reflected that the gravel-sand and sturgeon are generally found, it does not adult sturgeon between estuaries and sand substrate types were the dominant provide specificity as to the purpose of marine foraging areas. However, unlike substrate types along the coastline, so it the aggregations or the features that the Southern DPS of green sturgeon and was uncertain if Atlantic sturgeon support those purposes. Therefore, we Gulf sturgeon, the available information presence was correlated to the substrate do not believe it provides the for Atlantic sturgeon foraging in marine type or if Atlantic sturgeon presence information we need to meet the waters (Johnson et al., 1997; Dunton, was coincidental to the substrate type. statutory and regulatory requirements to 2014) is inconclusive regarding whether The commenters referred to Laney et designate critical habitat. any particular marine waters are al. (2007) as demonstrating that The commenters stated that the essential foraging areas for Atlantic ‘‘shallow, nearshore waters off North Atlantic sturgeon DPSs use a narrow sturgeon, and thus there are no Carolina are an important winter habitat migratory corridor within marine waters identifiable migratory corridors between for Atlantic sturgeon.’’ The commenters and we should designate this narrow specific foraging areas. Furthermore, did not provide information for why corridor as critical habitat. The those sources do not provide the these particular shallow, nearshore commenters’ characterization of these necessary information to allow us to waters are essential to one or more of waters as a ‘‘narrow corridor’’ is identify what the PBFs associated with the Atlantic sturgeon DPSs compared to subjective. As we described in the potential marine foraging for Atlantic all shallow, nearshore waters that are sturgeon might be. accessible to the DPSs. We need to have preamble for the proposed rules, The scientific information available information to be able to make the Atlantic sturgeon generally occur within on Atlantic sturgeon forage items does connection between species’ presence the 50 m depth contour. However, the not provide the specificity we need in and presence of one or more PBFs that literature is not consistent for the depth identifying PBFs that are essential to the are essential to the conservation of the contour where Atlantic sturgeon occur DPSs. The available information species and may require special in the marine environment. Based on indicates that Atlantic sturgeon are management or protection. The fisheries-dependent data for incidental opportunistic, benthic-cruisers that commenters did not provide, and we captures of Atlantic sturgeon, Stein et consume benthic prey over soft could not find, information to al. (2004) described that ‘‘peak sturgeon (unconsolidated) substrates. Other than distinguish these shallow, nearshore captures along the coast were being benthic prey, the specific Atlantic waters from other shallow, nearshore approximately bracketed by isobaths sturgeon prey items identified in the waters, or information that identifies ranging from 10 to 50 m’’ while Dunton literature were common and vary more specific features of these waters. et al., (2010), using both fisheries- between sites. Therefore, it is not Tagging work by Erickson et al. (2011) dependent and fisheries-independent possible to determine if gravel-sand and showed that adult Atlantic sturgeon data of incidental Atlantic sturgeon sand substrate types are essential habitat from the Hudson River move about captures, concluded that ‘‘Atlantic

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sturgeon were largely confined to water km (i.e., off New Jersey) and south (i.e., threats described by the commenters are depths less than 20 meters.’’ Erickson et off Maryland) of the mouth of the Bay. threats to individual Atlantic sturgeon al. (2011), using location data of tagged The glider mission covered a greater and not their habitat. Atlantic sturgeon, described the mean area; within approximately 25 km of the Comment 21: Several additional range of marine waters where Atlantic shoreline along a 120 km stretch of environmental organizations, including sturgeon occurred as 9.9 to 24.4 m depth coastline between Bethany Beach, one that established an online form depending on time of year. Erickson et Delaware (south of the mouth of the letter submission from which we al. also noted differences between fish, Bay), and Chincoteague, Virginia. While received over 1,000 form letters, as well with some sturgeon using more shallow the geographic area covered is large and as a representative for New York State waters (5–15 m) and some using deeper the time period is when we would Department of Environmental waters (35–70 m) compared to the other expect many Atlantic sturgeon to occur Conservation, and academics, also tagged Atlantic sturgeon. Given these in the areas, this is a small geographic pointed to the publications by Dunton et inconsistencies, we could not identify area, relatively mid-range, of the al. (2015) and Breece et al. (2016) and the PBFs that facilitate migration for any expansive Atlantic sturgeon DPSs’ stated that we should designate critical of the five DPSs. marine range from Canada to Florida, habitat for the Atlantic sturgeon DPSs in The commenters also pointed to the United States. Breece et al. (2016) noted marine waters, bays, and sounds. findings of Breece et al. (2016) as that the variables used to define the Our Response: Some bays are part of research that could inform our seascapes were so dynamic, that the the critical habitat designations. These designation of critical habitat in marine results of the study were presented with include Merrymeeting Bay of the waters, nearshore bays, and sounds. respect to an 8-day average of ocean Kennebec River critical habitat unit, and Noting that Atlantic sturgeons’ seasonal color and sea surface temperature for Haverstraw Bay of the Hudson River coastal migrations are difficult to each seascape. Based on the average, critical habitat unit. Bays that occur predict, Breece et al. (2016) used ocean Seascape E was the most prevalent between the mouth of the river and the color and sea surface temperature seascape class in the study area, and the Atlantic Ocean, such as Chesapeake recorded during the spring to partition equipment to detect the presence of Bay, are not part of the designated waters of the Delaware Bay and ocean Atlantic sturgeon occurred primarily critical habitat because we do not have waters off Delaware Bay into six within Seascape E. Additionally, Breece information that these areas contain ‘‘seascapes,’’ and tested the hypothesis et al. (2016) were unable to determine PBFs that are essential to reproduction that these seascapes are predictors of the why Atlantic sturgeon were associated and recruitment of the offspring. The occurrence of Atlantic sturgeon during with Seascape E. The authors state: available information describes their spring migration in the mid- ‘‘[f]ull understanding of the processes spawning adults as moving into the rivers and either staging in the river for Atlantic. The commenters stated that driving the association of Atlantic a period of time or immediately moving Seascape E is a physical feature of Sturgeon to Seascape E is not yet upriver to spawning areas and, marine waters that is essential to the known; however, it appears we can use similarly, after spawning, moving Atlantic sturgeon DPSs (e.g., for this global product to estimate spatial downriver and either remaining in the migrating between estuaries and marine occurrence without requiring direct river until outmigration in the fall or waters and for where Atlantic sturgeon observation of individuals to inform leaving immediately to move to other spend most of their life in marine coastal ocean users during spring estuarine systems (Savoy and Pacileo, waters) and asked us to designate migration.’’ Therefore, while potentially marine waters as critical habitat for the 2003; ASSRT, 2007; Greene et al., 2009; useful to resource managers for Atlantic sturgeon DPSs. We considered Simpson, 2008; Austin, 2012; Balazik et identifying potential areas of high and cited the Breece et al. (2016) study al., 2012; Breece et al., 2013; Hager et sturgeon abundance in the Mid-Atlantic for the information that it provides for al., 2014; Kahn et al., 2014). Juveniles Bight region, the information still does Atlantic sturgeon marine distribution. spend months to years in the natal not help us understand what, if any, However, we did not conclude that estuary, moving upriver and downriver PBFs exist in the area that may be Seascape E was an essential PBF with seasonal and annual changes in the essential to the conservation of the because: (1) The equipment to detect salt front to access rearing habitat (e.g., species. sturgeon was primarily placed in or within their preferred salinity range). occurred within Seascape E, and the Finally, the commenters stated that There is no information that natal information was not provided on the Atlantic sturgeon aggregation areas in juveniles are moving as far downriver as presence of Seascape E in other parts of marine and nearshore estuarine waters a bay or sound between the river mouth the marine range; and (2) because a clear should be designated as critical habitat and the ocean, and returning to the natal correlation between what specific because these require special river without continuing the PBF(s) is essential to the conservation of management and protection as a result outmigration to the ocean. Available the species could not be determined. of vessel strikes of Atlantic sturgeon information from tracking suggests they The Breece et al. (2016) study was from ships using the marine corridors, move downriver through the river temporally and geographically limited strikes from turbine blades in tidal estuary, into and through any adjoining in scope relative to the range of the estuaries, impingement and entrainment bay or sound upon their first DPSs. Detection data were collected by in water intakes, fisheries bycatch, and outmigration to the ocean. Thus, while fixed receivers and by receivers fixed to other threats to the fish including soft substrate between the river mouth a glider for the months of April through dredging, sand mining, pipeline and and spawning sites is essential for June, the period of peak Atlantic other construction, wind farm successful recruitment, we do not have sturgeon abundance during spring development, and impaired water information that soft substrate in these migration (Breece et al., 2016). More quality. However, special management bays and sounds is essential to than half of the fixed receivers were considerations or protection in the recruitment of the offspring to the located in Delaware Bay. The remaining context of critical habitat designations marine environment. The comments did receivers were placed within are the methods or procedures useful in not provide new information for approximately 20 km of the shoreline protecting the PBFs essential to the juvenile use of bays and sounds along the coast from approximately 30 conservation of the listed species. The between the natal river and the ocean.

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See also our response to Comment 20, given the multitude of factors that with gradually sloping, shallow flats and the biological information for the influence the exact location, we could near shore (USGS, 1984). Gulf of Maine, New York Bight, and not predict with any reasonable Comment 25: The Virginia Institute of Chesapeake Bay DPSs in the Impacts certainty the timing of any particular Marine Science provided new Analysis and Biological Information location). The timing of a proposed information, based on their data Source Document. Federal action and the effects it would collections, that adult Atlantic sturgeon Comment 22: A commenter stated that have on the critical habitat are occur upriver of the Route 360 bridges further spatial delineation of the considered during ESA section 7 on both the Pamunkey and Mattaponi Delaware River critical habitat areas is consultation. For example, the effects of Rivers. essential, given the multiple and vital an activity that will impact hard In 2015, a receiver placed at rkm 144 uses of this waterway, which include substrate in freshwater reaches of the of the Pamunkey River, 5 km above the but are not limited to: 94 discharges Delaware River may be different during Route 360 Bridge, regularly detected 18 regulated under a Total Maximum Daily the spawning season than during the acoustically-tagged, adult sturgeon Load for polychlorinated biphenyls winter. during the summer and early fall. The (PCBs) under the Clean Water Act; Comment 23: The Navy raised commenter believes that the occurrence multiple water withdrawals serving concern that freshwater suitable for of the adults in freshwater of the regional populations; and significant Atlantic sturgeon spawning was not Pamunkey River during the spawning commercial navigation. In addition, available to Atlantic sturgeon in the period (Hager et al., 2014; Kahn et al., given the varying requirements of the Piscataqua River system below the 2014) and the detected movements of different life stages of the Atlantic lowermost dams of the Salmon Falls the adults support that the geographical sturgeon, temporal delineation of and Cocheco Rivers. area occupied includes the waters at critical habitat should also be Our Response: Freshwater is available least 5 km upriver of the Route 360 considered for the final designation. below the lowermost dams of the Bridge crossing, and suggests that this Our Response: The PBFs that support Salmon Falls and Cocheco Rivers. The part of the Pamunkey River has the reproduction and recruitment and that salinity changes within the river estuary essential PBFs of critical habitat based are essential to the conservation of the seasonally and daily depending on on patches of sand from bank erosion. New York Bight DPS are all of those that freshwater flow and tidal changes. See The commenter recommends that we we have identified in the proposed our response to Comment 3 for extend critical habitat above the Route critical habitat designation. These may additional information on the 360 bridge in the Pamunkey River require special management Piscataqua River. approximately 14 rkm up to Nelson’s considerations or protection as a result Comment 24: A commenter stated that Bridge Road Route 615 crossing on the of certain kinds of activities, including nearshore shallow water areas of the Pamunkey. activities listed by the commenter. We Potomac River from Key Bridge to at The commenter also recommended are, therefore, required to designate least Marshall Hall should not be extending the upriver boundary of the these areas as critical habitat for the considered critical habitat because Mattaponi critical habitat unit by 10 New York Bight DPS. The boundaries of substrate from at least Marshall Hall to rkm above the Route 360 bridge to rkm each critical habitat area, including the Key Bridge is deeply silty, and near 122. In the summer and early fall of Delaware River critical habitat area, shore salinity is closer to fresh than to 2015, one tagged adult female Atlantic encompass no more and no less than the 0.5 ppt salinity. The commenter stated sturgeon ascended the Mattaponi River area containing the PBFs essential to the that the feature is substrate with salinity and was detected at the uppermost conservation of the DPS and which may greater than 0.5 ppt. Therefore, this area receiver located near the Route 360 require special management should not be designated critical bridge crossing. This is during the time considerations or protection. habitat. and in an area where spawning would It appears that the commenter is Our Response: We are not required to be expected to occur. Based on the time requesting that we identify the specific determine that every segment of the series of detections at this receiver, the areas within the Delaware River where critical habitat contains all of the PBFs commenter believes this individual each of the features occurs; however, essential to conservation of the species, moved past the receiver upstream, then this goes beyond the scope of what is but rather, we demonstrate overall that moved back down again. required in a critical habitat the designated unit contains the PBFs Our Response: We considered the designation. (see Home Builders Ass’n essential to conservation of the species. information provided and agree that the of Northern California v. U.S. Fish and We have provided references in the rule, detected presence of at least 18 adult Wildlife Service, 616 F.3d 983 (9th Cir., and in the Impacts Analysis and Atlantic sturgeon in the Pamunkey 2010)). We have provided references in Biological Information Source River above the Route 360 Bridge the rule, and in the Impacts Analysis Document that support our crossing provides evidence that the and Biological Information Source determination that the PBFs are present geographical area occupied by the DPS Document that support our in the area designated as critical habitat in the Pamunkey is above the Bridge determination that the PBFs are present in the Potomac River. Briefly, the crossing, and the area is used by adults in the area designated and can provide Potomac River estuary extends during the fall spawning period for the guidance to Federal agencies when they approximately 187 river kilometers Chesapeake Bay DPS. We did not agree need to request ESA section 7 (rkm) from the Chain Bridge to the with the commenter that sand from consultation and consider the effects of mouth of the river. The river is tidal bank erosion is evidence that hard their actions on critical habitat. freshwater from Chain Bridge to substrate occurs in the area. However, We do not use temporal designations Quantico, VA; the mixing zone of the literature cited in the comments for critical habitat because the PBFs are transitional salinity occurs from (e.g., Bushnoe et al., 2005) provides either present year round or will be Quantico, VA, to the crossing of the U.S. additional information for hard present at some expected time during Highway 301 Bridge, MD, and the substrate (gravel) in the area. We, the year that cannot be predicted with remainder of the river estuary, from the therefore, revised the boundary of the precision (e.g., the location of the salt U.S. Highway 301 Bridge crossing to the York River critical habitat unit by front moves throughout the year, but Chesapeake Bay, has a wide channel extending critical habitat by

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approximately 14 rkm to the Nelson’s final report, ‘‘Assessment of Critical substrate and information to show that Bridge Road Route 615 crossing on the Habitats for Recovering the Chesapeake these areas could be used by Atlantic Pamunkey River. Bay Atlantic Sturgeon Distinct sturgeon for spawning (e.g., evidence of We did not revise the upriver Population Segment,’’ funded by the spawning adult presence in the area, boundary of the critical habitat NOAA Species Recovery Grants to evidence for the presence of natal designation on the Mattaponi River. We States (ESA Section 6 Program). The offspring). have considered the information benthic mapping report does provide Based on the PBFs essential to the provided by VIMS. While their data information to confirm the presence of conservation of the Chesapeake Bay analysis suggests to them that the fish hard substrate in low salinity waters of DPS, the Nanticoke River system critical moved further upriver, there is no Marshyhope Creek and the Nanticoke habitat unit consists of the waters of the evidence that it moved upriver and, River. In addition, the MD DNR Section Nanticoke River from the Maryland even if it did, these are the movements 6 report provides evidence that the area State Route 313 Bridge crossing near of just one fish. We cannot determine is likely being used for spawning. This Sharptown, MD, to where the main stem whether the movements of this fish are information along with information discharges at its mouth into the representative of all Atlantic sturgeon related to the presence of suitable Chesapeake Bay as well as Marshyhope that occur in the Mattaponi or are spawning substrate (Bruce et al., 2016) Creek from its confluence with the movements of a vagrant fish. indicates that there is the potential for Nanticoke River and upriver to the Additionally, critical habitat is based on spawning and recruitment to occur in Maryland State Route 318 Bridge the presence of the essential PBFs. the Nanticoke River and Marshyhope crossing near Federalsburg, MD, for a VIMS did not provide information that Creek. total of 60 rkm of aquatic habitat. the PBFs of critical habitat occur in the Our review of this best available Comment 27: One commenter Mattaponi River upriver of the Route information confirmed that critical requested consideration of additional 360 Bridge crossing. Therefore, we are habitat for the Chesapeake Bay DPS literature and datasets for determining not changing the upriver boundary for occurs in the Nanticoke River and its whether to include the Eastern River, the York River critical habitat unit in tributary, Marshyhope Creek. Abagadasset River, Muddy River, the Mattaponi River. Designation of the area is a natural Sheepscot River up to Head Tide Dam, Comment 26: Maryland Department of outgrowth of the proposed rule given Dyer River up to Boynton Trask Dam, Natural Resources (MD DNR) requested that we stated in the proposed rule that Saco River from Cataract Dam amendment of the critical habitat we suspected spawning was occurring downstream to its mouth, Mousam designation for the Chesapeake DPS to in Marshyhope Creek, a tributary of the River below the confluence with include: Marshyhope Creek; Broad Nanticoke, and we stated in the Impacts Fernald Brook, tributaries of Great Bay Creek; Deep Creek; and, areas of the Analysis and Biological Information (Spruce Creek, Berrys Brook, Sagamore Nanticoke River above its confluence Source Document that we were awaiting Creek, Lubberland Creek, Crommet with the Marshyhope Creek and the receipt of substrate information and Creek, Bellamy River, Sturgeon Creek), lower Nanticoke River down to Chapter would consider designating critical and Penobscot Bay as critical habitat for Point, MD. The MD DNR provided the habitat in the River if we received the Gulf of Maine DPS. The commenter 2016 project report for riverbed additional information that confirmed also indicated that the Taunton River, mapping of the Broad Creek, that the PBFs are present. The PBFs may MA, up to the confluence with the Marshyhope Creek, and Nanticoke River require special management Nemasket River should be included in (Bruce et al., 2016), information on the considerations or protection as a result the critical habitat designation for the detection of an adult Atlantic sturgeon of activities, such as dredging and New York Bight DPS. in spawning condition, and salinity, construction projects (e.g., docks, piers), Our Response: We have reviewed the water temperature, and DO in that may affect the PBFs. Therefore, we additional information and datasets Marshyhope Creek, Broad Creek, and are designating critical habitat in the referenced by the commenter. We are the Nanticoke River. Nanticoke River and Marshyhope Creek not adding these additional areas to the Our Response: The substrate for the Chesapeake Bay DPS. critical habitat designations. We information for Marshyhope Creek and We are not, however, designating discussed in our response to Comment the Nanticoke River was not received in critical habitat in the Nanticoke River 20 why the critical habitat designations time for us to consider it for inclusion and Marshyhope Creek as two separate for the Gulf of Maine, New York Bight, in the proposed rule. However, we were areas as recommended by MD DNR, and and Chesapeake Bay DPSs do not aware that a final report was imminent we are not designating critical habitat in include bays and sounds that occur and alerted the public in the Impacts Broad Creek or Deep Creek. Critical between the river mouth and the ocean, Analysis and Biological Information habitat that is designated within the such as Penobscot Bay. No information Source Document to the proposed rule geographical area occupied by the was provided by the commenter that that the presence of adult sturgeon in species is based on the presence of the allowed us to identify PBFs in spawning condition and at the time PBFs. While information on salinity and Penobscot Bay. when the Chesapeake Bay DPS spawns water quality is generally available, As described in our regulations at 50 suggests that the PBFs essential to information on hard substrate (e.g., CFR 424.12(b)(1) and the proposed rule, Atlantic sturgeon reproduction and gravel, cobble) in low salinity waters is critical habitat must contain the PBFs recruitment are present in Marshyhope not available for Broad Creek or Deep essential to the conservation of the DPS, Creek. We also alerted the public that Creek. The substrate study did indicate and that may require special after receiving the report, we would the presence of gravel-sand, and sand- management or protection. The Cataract assess whether to expand critical habitat gravel in Broad Creek, but hard Dam is located downriver of freshwater, to include this area. The final project substrate such as gravel and cobble that and Atlantic sturgeon do not pass report was submitted to us by the MD provides interstitial spaces for the upriver of the dam. The dam is at the DNR during the public comment period. offspring after hatching is essential for location of a natural falls that would be We reviewed the information as well as spawning. We will reconsider Broad impassable to Atlantic sturgeon even if other available information for the Creek and Deep Creek as new the dam was not present. As a result, Nanticoke River, including the MD DNR information becomes available on hard hard bottom substrate (e.g., rock, cobble,

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gravel, limestone, boulder, etc.) in low the DPSs. Therefore, we cannot Creek below the rapids, Stockport Creek salinity waters (i.e., 0.0–0.5 ppt range) designate critical habitat in the Eastern below the dam, Coxsackie Creek, for settlement of fertilized eggs, refuge, River, Abagadasset River, Muddy River, Schodack Creek, Moordener Kill, growth, and development of early life Dyer River up to Boynton Trask Dam, Normans Kill, and the Mohawk River stages is not available to Atlantic Mousam River below the confluence below the locks. sturgeon in the Saco River. Therefore, with Fernald Brook, or tributaries of Our Response: The commenter did we are not designating critical habitat in Great Bay (Spruce Creek, Berrys Brook, not provide and we do not have the Saco River since the area of the river Sagamore Creek, Lubberland Creek, information that suggests Atlantic within the geographical area occupied Crommet Creek, Bellamy River, sturgeon spawn or spawned in the by the Gulf of Maine DPS does not Sturgeon Creek). waterways, all tributaries of the Hudson contain the PBFs essential to successful Comment 28: A commenter was River, named by the commenter. reproduction and recruitment. concerned that the critical habitat Additionally, the commenter did not For the other waterways named by the designations for the Gulf of Maine, New provide and we do not have information commenter, we do not have information York Bight, and Chesapeake Bay DPSs indicating that the features are present on whether Atlantic sturgeon spawn or do not include all of the rivers listed in in these waterways. Based on spawned in that particular waterway. Table 1 of the 2007 Status Review information provided in the Atlantic Atlantic sturgeon can be identified to labeled as historically or presently Sturgeon Status Review (ASSRT, 2007) their river of origin based on genetic supporting Atlantic sturgeon spawning, and the Atlantic Sturgeon Stock or having Atlantic sturgeon nursery Assessment, these areas are not essential analysis, likely due to their strong habitat. to the conservation of the DPS, and we affinity for natal homing (i.e., adults Our Response: The regulations for cannot designate the areas as critical spawn in the river in which they were identifying critical habitat differ from habitat. However, we do recognize the spawned). Some straying occurs and the approach used by the Atlantic connection of tributaries to the main recolonization of rivers within a DPS is Sturgeon Status Review Team to label stem Hudson River, the importance of a possible. However, we have no way to rivers as historically or presently healthy ecosystem to Atlantic sturgeon. determine the likelihood that a supporting Atlantic sturgeon spawning, Comment 30: A commenter stated that particular river will be recolonized or or having Atlantic sturgeon nursery the frequency and timing of use suggests the timespan over which recolonization habitat. For example, the Status Review that PBFs, including foraging areas and would occur. Therefore, just as we Team considered nursery habitat as any cover from predation, may occur within considered the Union River as described habitat used by immature Atlantic certain bays, estuaries and near-shore in the Impacts Analysis and Biological sturgeon, including non-natal estuaries marine areas. The commenter Information Source Document, we used by subadult Atlantic sturgeon. For acknowledged that PBFs must be investigated whether there is any this critical habitat designation, we defined under the ESA, and that these evidence that sturgeon are now using, or consider nursery habitat to be habitat data are not currently available for the have ever used, a particular river or within the natal estuary used by natal entire range, but should be considered river segment for spawning. The 2007 juveniles. Therefore, in our approach, a for the areas available. The commenter Status Review for Atlantic Sturgeon river would only be labeled as having recommended that we: Consider the (ASSRT, 2007) indicated Atlantic nursery habitat if there was also DPS-specific references (Calvo et al., sturgeon historically spawned in the evidence that it historically or presently 2010; Erickson et al., 2011; and Breece Taunton River, Massachusetts (Table 1 supported Atlantic sturgeon spawning. et al., 2016) in the Final Rule; continue in that document). However, the Status As described in the response to to consider this information gap to be a Review report does not provide the Comment 27, we considered the research priority; and, develop a reference for this conclusion and we evidence that the 2007 Status Review schedule for designating bay and near- could not locate information to support cited for whether a river historically shore critical habitats essential to the conclusion. There is no recent supported or presently supports an support the successful development, evidence of spawning for the Taunton Atlantic sturgeon spawning population. growth and migration of sub-adult and River. Similarly, the 2007 Status Review This information helped to inform adult Atlantic sturgeon. report indicated Atlantic sturgeon whether an area contained the PBFs Our Response: Our consideration of historically spawned in the Sheepscot essential to the conservation of the the best available information to River and possibly spawn presently in particular DPS and that may require identify potential PBFs for the Atlantic the Sheepscot River. However, a study special management considerations or sturgeon DPSs in marine waters, bays, of the Kennebec Estuary, including the protection. and sounds is described in the proposed Sheepscot River, spanning the time Comment 29: A commenter stated rule, Impacts Analysis and Biological period 1977–2001 did not find any tributaries are vital components of the Information Source Document, and in evidence of Atlantic sturgeon spawning estuarine habitat that Atlantic sturgeon our response to Comment 20. This in the Sheepscot River (Wippelhauser need to reproduce and develop, and information included research findings and Squiers, 2015). Based on the best conditions in tributaries affect the described in Calvo et al., 2010, Erickson scientific information available, we Hudson River. Therefore, the et al., 2011, and Breece et al., 2016. cannot determine that the Taunton commenter recommended that we Based on the best scientific information River and Sheepscot River are essential designate critical habitat for the entire available for each DPS, and information to reproduction or recruitment of the length of, or the segment downstream of for Atlantic sturgeon in general, we New York Bight and Gulf of Maine a dam or impassable rapids, in: Lents were not able to identify any PBFs for DPSs, respectively. Similarly, we do not Cove, Annsville Creek, Popolopen marine waters, sounds, or bays, other have evidence that Atlantic sturgeon Creek, Constitution Marsh and Foundry than for those bays that contain the historically spawned or presently spawn Cove, Moodna Creek below Route 9W, PBFs essential for reproduction and in the other waterways named by the Wappinger Creek below the rapids, recruitment of the Gulf of Maine, New commenter. Based on the best scientific Roundout Creek below the dam, Esopus York Bight, and Chesapeake Bay DPSs information available, these waterways Creek below the dam, Jansen Kill below and that are included as part of the are not essential to the conservation of Route 9G, Ramshorn Creek, Catskill designated critical habitat.

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Critical habitat designations are based occupied by the DPS in each river, we river. It is a common misconception that on the best available scientific considered all areas that contained the all rivers are all freshwater and only information. We cannot commit to a PBFs that are essential to the particular bays or sounds are the estuarine waters. schedule for designating additional DPS and identified the boundaries, We are designating critical habitat in the critical habitat for the Gulf of Maine, accordingly. As described in the Merrimack River, downstream of the New York Bight, or Chesapeake Bay response to a previous comment, we Essex Dam to the mouth of the DPS because we cannot predict when concluded for purposes of the critical Merrimack River. We are not information will be available to inform habitat designations that unoccupied designating critical habitat in the Saco any potential future modification of this habitat was not essential to the River because the area of the river critical habitat designation or any new conservation of the Gulf of Maine, New within the geographical area occupied designation. York Bight, or Chesapeake Bay DPS. by the Gulf of Maine DPS does not Comment 31: A conservation group We are aware of the report by Moberg contain the PBFs essential to the pointed to a recent report by Moberg and DeLucia (2016) that focused on DO conservation of the DPS. Our response and DeLucia (2016) that recommended levels for survival of Delaware River to Comment 20 addresses the best minimum values of DO, water natal juveniles in low salinity waters. available information for identifying temperature, and salinity values to However, the water quality feature for other PBFs in bays and sounds that are support habitat suitable for successful critical habitat is the interrelated essential to the conservation of the Gulf recruitment of Atlantic sturgeon in the variables of salinity, DO, and water of Maine, New York Bight, and Delaware River. These values are temperature that are necessary for use of Chesapeake Bay DPSs. instantaneous DO greater than or equal the habitat rather than fish survival. Comment 33: The commenter believes to 5.0 mg/L, and temperature less than Fish avoid, when possible, habitats that that areas proposed to be designated as 28 °C when salinity is less than 0.5 ppt. would result in their death, and studies critical habitat in the James River The commenter noted that estuaries are have shown that fish avoidance of exceed what is necessary to protect naturally dynamic habitats and the areas habitat occurs before the DO levels of Atlantic sturgeon and will accomplish that support habitat suitable for the habitat have dropped so low as to little habitat restoration in the successful recruitment could change be deadly (Breitburg 2002; EPA, 2003). Chesapeake Bay DPS. The commenter with migration of the salt front. The Studies have also shown that the DO states that considering the breadth of commenter recommended that concentration at which the fish will available information on biological and designated critical habitat include river begin to avoid habitat is approximately habitat data, critical habitat in the James segments that may serve as reproduction equal to the DO concentration that River could be more specifically and recruitment habitats that reduces their growth rate. Therefore, defined. accommodate changes in migration of identifying the temperature, DO, and Our Response: The boundaries of the the salt front, DO, and temperature salinity values that result in reduced critical habitat areas are based on the conditions. Atlantic sturgeon growth can serve as a presence of the PBFs essential to the Our Response: We agree that estuaries proxy for identifying the temperature, conservation of the Chesapeake Bay are naturally dynamic habitats. In the DO, and salinity values that result in DPS, and which may require special Background section of the proposed rule Atlantic sturgeon habitat avoidance. management considerations or we described that multiple spawning We considered the available protection. The PBFs are based on sites have been identified within many information on Atlantic sturgeon substrate, water quality, open passage, of the rivers used for Atlantic sturgeon growth, and temperature, DO, and and the transitional salinity zone spawning (Dovel and Berggren, 1983; salinity (Breitburg, 2002; EPA, 2003; necessary for Atlantic sturgeon adults to Van Eenennaam et al., 1996; Kahnle et Niklitscheck and Secor 2009; reproduce and juveniles to rear in the al., 1998; Bain et al., 2000; Sommerfield Niklitscheck and Secor 2010; Allen et natal estuary prior to emigration to the and Madsen, 2003; Bushnoe et al., 2005; al., 2014) when we developed the marine environment. Simpson, 2008; Hager, 2011; Austin, examples provided in the proposed rule. The best available information 2012; Balazik et al., 2012; Breece et al., Our intent was to provide an example supports the conclusion that there are 2013), and spawning sites at different in the proposed rule of a set of two spawning groups of Atlantic locations within the tidal-affected river conditions that we expect to correlate to sturgeon returning to the James River, would help to ensure successful Atlantic sturgeon use of an area; it was one in the spring and one in the fall. spawning, given annual changes in the not our intent to provide an example of Spawning occurs in different areas of location of the salt wedge. For example, the DO levels that are necessary for the the river for each group. Such a Breece et al. (2016) reported a difference survival of any particular age class of difference is not unexpected given of 30 km in the average location of the Atlantic sturgeon. changes in the location of an estuary’s Delaware River salt front during adult Comment 32: A commenter stated that salt wedge from spring to fall. Even in Atlantic sturgeon occupancy in 2011 our decision to not designate any rivers where only one spawning season compared to 2009 and 2012. estuarine areas as critical habitat is is currently known, spawning Atlantic Designating critical habitat that arbitrary and capricious, noting that sturgeon may select for the best includes multiple potential spawning natal estuaries are attached to a natal spawning site in the river estuary, given areas helps to ensure Atlantic sturgeon river, which makes these estuaries the environmental conditions at the can select the best spawning site, given critical and, therefore, they should be time (e.g., flow and salinity), which vary the natural annual variations in designated. The commenter also stated depending on weather and other environmental conditions within the that we should also designate estuaries conditions (e.g., more freshwater inflow river estuary. When several habitats, that it knows are important (e.g., the due to a rainy spring or high snowpack each satisfying the requirements for mouth of the Merrimack and the Saco can result in the salt front being farther designation as critical habitat, are River). downstream). Designating critical located in proximity to one another, an Our Response: The critical habitat habitat that includes multiple spawning inclusive area may be designated as designated for the Gulf of Maine, New areas helps to ensure successful critical habitat (50 CFR 424.12(d)). York Bight, and Chesapeake Bay DPSs spawning, given the natural variations Therefore, within the geographical area includes estuarine waters of the named in environmental conditions within the

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river estuary. Similarly, critical habitat a salinity gradient in the future. Because boundaries of the critical habitat areas that encompasses the complete habitat this PBF is not present in the lowermost account for these cyclical changes that needs of Atlantic sturgeon juveniles is 16 rkm of the Susquehanna River, and are reasonably expected to occur based necessary because Atlantic sturgeon we determined that the coexistence of on the best available information for the offspring select for the habitat with the all four PBFs is required for successful particular river within which we are combined variables of DO, water reproduction and recruitment of the designating critical habitat. temperature, and salinity that best Chesapeake Bay DPS, the lowermost 16 Comment 36: A representative for a support their growth and development. rkm of the Susquehanna River are not power operation stated that the area of Because estuaries are also dynamic included in critical habitat for the the Hudson River in the vicinity of the environments with daily and seasonal Chesapeake Bay DPS. Further facility should be excluded from the changes in salinity, Atlantic sturgeon information on the salinity, substrate, critical habitat designation because: this juveniles must be able to move within and water quality below the Conowingo part of the Hudson River does not the natal estuary to remain in or access Dam is available at http://www.exelon possess characteristics of value to the salinity zone most suitable for the corp.com/locations/ferc-license- Atlantic sturgeon at any life stage, and stage of development. As such, limiting renewals/Conowingo/Pages/ it is inconceivable that any federally- the designation in the James River Documents.aspx. approved action within the vicinity of would not allow for inclusion of all of Comment 35: A number of Indian Point would ever rise to the level the PBFs that are essential to the commenters, including a coalition, of destruction or adverse modification conservation of the DPS. objected to the proposed designations of critical habitat as the Services have Comment 34: A commenter stated that and stated that we provided no data or defined it. we must identify, with specificity and analysis in support of our conclusions Our Response: We are not required to substantial evidence, those areas of the that the essential PBFs we have determine that every segment of the Susquehanna River that we believe identified are actually present critical habitat contains all of the PBFs exhibit the PBFs essential to the throughout the expansive areas we have essential to the conservation of the conservation of Atlantic sturgeon. proposed for designation, nor any species, but rather, we demonstrate Further, to meet our obligations under discussion of the location of essential overall that the designated unit contains the Administrative Procedure Act, we PBFs within the areas. the PBFs essential to conservation of the must then provide stakeholders with an Our Response: We are not required to species (See Home Builders Ass’n of additional opportunity to comment on conduct new analyses for critical habitat Northern California v. U.S. Fish and the justifications for the determinations. designations. We are required to use the Wildlife Service, 616 F.3d 983, 988–989 Our Response: The ESA and the best available information. The (9th Cir., 2010)). We recognize in the regulations implementing the critical proposed rule, the biological rule that the location of some PBFs may habitat provision of the ESA (50 CFR information in the Impacts Analysis and shift daily, seasonally, or annually. We part 424) do not require that we provide Biological Information Source disagree that the area noted in the ‘‘substantial evidence’’ or articulate a Document, and our administrative comment does not contain the essential particular level of specificity as to record for the critical habitat PBFs of critical habitat; the area where exactly the PBFs may be found in designations provide the sources of contains soft substrate and is within the a particular unit. The proposed rule did information for where the PBFs occur salinity gradient necessary for the specify that the area containing the within each designated critical habitat development of juveniles. It is also an PBFs of critical habitat in the area. We balanced the desire to provide area of the Hudson River where barrier- Susquehanna River is the 16 km of the detail on each critical habitat free passage is necessary for the Susquehanna River main stem from the designation against the need to provide upstream and downstream movement of Conowingo Dam to where the river transparent and concise information. An adults. drains at its mouth into the Chesapeake excessively lengthy document can be The commenter’s determination that Bay. These are the lowermost 16 km of perceived as burdensome to read and activities associated with the Indian the river’s overall 714 km length. comment upon. We provided a level of Point nuclear facility would not destroy Upon reexamination of the detail that we believe was necessary and or adversely modify the critical habitat information for the PBFs, we desired by the general public. In all is not a comment on the designation, determined that PBF 2 (i.e., aquatic cases, we have cited the sources of but rather a conclusion of the effects of habitat with a gradual downstream information for the presence of the PBFs the activities that would be considered salinity gradient of 0.5 to as high as 30 in the specific critical habitat areas. in an ESA section 7 consultation. Even ppt and soft substrate (e.g., sand, mud) We also took into account the if we agreed with that conclusion, there between the river mouth and spawning dynamic environment in which the is no means to exclude an area based on sites for juvenile foraging and PBFs occur. Some of the PBFs occur in the potential impacts of the operations physiological development) is not more than one location or occur in a of one facility. We also note that the present in the lowermost 16 rkm of the location at certain times of the year. For critical habitat designated in the vicinity Susquehanna River that we proposed to example, hard bottom substrate in low of Indian Point could be affected by designate as critical habitat. In addition, salinity waters (0.0 to 0.5 ppt) may be other Federal actions independent of these waters are likely to remain available farther downriver in the spring Indian Point (e.g., dredging, water freshwater because saltwater from the than in the fall, depending on seasonal quality regulations, etc.). ocean generally does not push into the changes in freshwater input, or may be We considered impacts of designating upper Chesapeake Bay, and there is a available farther downriver in one year critical habitat for the New York Bight large volume of freshwater flowing into compared to another, depending on the DPS, and concluded there was no basis the upper Bay from the Susquehanna freshwater input to the estuary in that to exclude any particular area from the and other rivers (Chesapeake Bay particular year. Likewise, the exact proposed critical habitat because of the Program, 1987). boundaries of the transitional salinity conservation benefits of the critical The proposed 16 rkm of the zone will fluctuate with seasonal habitat designations to the species and Susquehanna River does not have a changes in flow, annual changes in to society. While we cannot quantify nor salinity gradient and is unlikely to have flow, and even tide cycles. The monetize these benefits, we believe they

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are not negligible and are an context of Atlantic sturgeon life history, considerations or protection, or the incremental effect of the designations. of why the PBFs are essential to the upstream limit of the occupied area. See our response to Comments 51, 52 conservation of the Atlantic sturgeon We cannot use ephemeral reference and 53 for further information on the DPSs. We provided the same points (e.g., trees, sand bars) to clarify Impacts Analysis for the Gulf of Maine, background as well as the list of cited or refine the boundaries of critical Chesapeake Bay and New York Bight literature in the Impacts Analysis and habitat. We can use physical structures DPSs. Biological Information Source that occur at the boundary of the area Comment 37: A commenter stated that Document. containing the PBFs in our regulatory scientifically demonstrated All of the PBFs are necessary for description of the critical habitat areas. identification of known PBFs needed for successful Atlantic sturgeon spawning Doing so better informs Federal agencies physiological development have not and recruitment of offspring to the of the area within which they should been specifically determined for the marine environment. Adults need consider effects of their proposed Atlantic sturgeon, and designating habitat suitable for spawning, for actions to determine whether they are critical habitat in the Delaware River traveling to and from spawning sites, required to consult with us under may be premature. The commenter goes and for staging, resting, and holding section 7 of the ESA. on to state that the length and breadth before and after spawning. The offspring The Delaware River critical habitat limits of the critical habitat area alone need habitats in the natal estuary unit extends from the upstream point of apply assumptions that are not well suitable for rearing. The habitat needed tidal influence (identified by a bridge documented in science, and, in the case by juvenile Atlantic sturgeon changes as that crosses the river at that boundary) of the downstream limit on the they grow and develop in the natal downriver to where the river enters the Delaware River, arbitrary landmarks estuary. All juvenile habitat types in the Delaware Bay. A mouth of a river is often considered to be rkm 0 of that were used to identify the beginning and natal estuary are needed for successful river. However, in this case, New Jersey end of the designated critical habitat. rearing of the offspring. Laboratory regulations count the mouth of the The commenter also states that the studies have shown differences in Delaware Bay (i.e., where it drains into down-river boundary is demarcated by Atlantic sturgeon growth with different the Atlantic Ocean) as rkm 0. To avoid a land-based, manmade monument that combinations of the combined variables confusion, we described the downriver possesses no inherent biological or of DO, water temperature, and salinity. boundary of the critical habitat unit physiological value indicating that Captures of Atlantic sturgeon juveniles based on the pre-established points and sturgeon reproduction, early growth, in the natal estuary, likewise, reveal and population maintenance begins or markers that demarcate the Delaware differences in the distribution of larger, ends here. River and the Delaware Bay. older Atlantic sturgeon juveniles Our Response: The critical habitat Comments on Impacts Analysis, designations are not premature. The compared to smaller, younger Atlantic Exclusions, and INRMPs ESA requires that we designate critical sturgeon juveniles. Therefore, we habitat at the time a species is listed identified the boundaries of each critical Comment 38: Many commenters, unless designating critical habitat is not habitat area that encompassed the PBFs including those representing maritime prudent for the species (this rarely essential to the conservation of each associations, tug and barge operator occurs) or is not determinable. If critical Atlantic sturgeon DPS and that may associations, pilot associations, habitat is not determinable at the time require special management shipbuilders, and Federal and state of listing, we are allowed one additional considerations or protection. When agencies, stated we should exclude the year. At the end of that year, we must several habitats, each satisfying the Federal navigation channels and dredge designate critical habitat based on the requirements for designation as critical disposal sites from the critical habitat best available information. habitat, are located in proximity to one designations (e.g., in the Penobscot, We concluded that critical habitat was another, an inclusive area may be Hudson, Delaware, York, and James not determinable when the Atlantic designated as critical habitat (50 CFR Rivers). They believe including them sturgeon DPSs were listed as 424.12(d)). will prevent or delay dredging of endangered and threatened in 2012. We The boundaries of each critical habitat Federal navigation channels, resulting failed to meet the one-year timeframe unit are consistent with how we have in impacts to navigation safety, less for designating critical habitat. We designated critical habitat for other commerce, and harm to the proposed critical habitat in June 2016. species in rivers (e.g., the southern DPS environment (e.g., by increasing the risk We have used the best available of green sturgeon, Gulf of Maine DPS of of vessel damage that could cause fuel information to determine the essential Atlantic salmon). One or more of the spills). They also stated that including PBFs that may require special PBFs occur throughout the identified the Federal navigation channels and management considerations or critical habitat areas. Riverbanks are the dredge disposal sites does not protection and identify where those lateral boundaries. The downriver contribute to protecting the Atlantic PBFs occur to develop the critical boundary is the mouth of the river sturgeon DPSs or their existing habitat. habitat designation. While we agree that because that is the downstream limit of Our Response: We disagree. The more information on the exact location the most extensive feature (the Federal navigation channels and dredge of Atlantic sturgeon spawning would be transitional salinity zone). The upriver disposal sites are part of the areas that generally informative and could allow boundary is the beginning of the named we have identified as critical habitat us to better manage the species, the river, a manmade structure that is based on the presence of the PBFs absence of this more specific impassable by sturgeon, a natural essential to the conservation of the Gulf information did not impair our ability to feature that is impassable by sturgeon, of Maine, New York Bight, and develop the critical habitat designation. or the upriver extent of tidal influence Chesapeake Bay DPSs, and because This is in part because our critical because, depending on the particular those essential PBFs may require special habitat designation was not designed to river, that is the upstream extent of the management considerations or include only spawning habitat. presence of the PBFs that are essential protection. There are conservation The proposed rule described the PBFs to the conservation of the DPS and that benefits of the critical habitat and provided an explanation, in the may require special management designations, both to the species and to

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society. While we cannot quantify or Comment 39: Commenters expressed habitat designations do not create monetize these benefits, we believe they concern that designating critical habitat refuges or preserves where activities are not negligible and are an would prevent repairs to or new cannot occur. Critical habitat incremental effect of the designations. construction of marine terminals, docks, designations do require Federal agencies The purpose of designating critical and other port infrastructure, thus to consult with us if they are funding, habitat is to contribute to species’ impacting commerce. They commented authorizing or carrying out an action conservation (i.e., facilitate recovery of we should exclude parts of the critical that may affect designated critical the ESA-listed species for which critical habitat areas adjacent to marine habitat for ESA-listed species under our habitat is designated). Because the terminals, docks, and other port jurisdiction. A Federal action can occur Federal navigation channels and dredge infrastructure to avoid such impacts. as proposed if we agree with a Federal disposal sites within the critical habitat Our Response: Activities such as agency’s determination that a proposed areas are part of the area containing the repairs to or new construction of marine action may affect designated critical essential PBFs, we are not excluding the terminals, docks, and other port habitat, and that all of the anticipated Federal navigation channels and areas infrastructure can occur when such effects are insignificant, discountable, or used for dredge disposal. structures are within or in proximity to wholly beneficial. A Federal action can Critical habitat designations do not designated critical habitat. Section also occur as proposed if we agree with stop or prevent Federal agency actions. 7(a)(2) of the ESA requires Federal a Federal agency’s determination that a The sole ESA requirement with respect agencies to consult with us if the agency proposed action is likely to adversely to designated critical habitat is that will fund, authorize, or carry-out an affect critical habitat, but will not Federal agencies consult with us (or the activity that may affect designated destroy or adversely modify critical USFWS for species under their Atlantic sturgeon critical habitat. If, habitat. A Federal action is required to jurisdiction) on any Federal agency during consultation, we determine a be modified if we conclude that the action (i.e., any action that agency Federal agency action is likely to proposed action is likely to destroy or intends to fund, authorize or carry out) destroy or adversely modify critical adversely modify critical habitat. In that that may affect critical habitat. The habitat, we will work with the Federal circumstance, we work with the Federal purpose of the consultation is to ensure agency to identify modifications to the agency to identify modifications to the that actions taken by Federal agencies proposed action to remove the proposed action that allow the proposed are not likely to result in the destruction likelihood that the action will destroy or action to occur without destruction or adversely modify critical habitat. In that or adverse modification of critical adverse modification of critical habitat. case, we would document our habitat. ESA section 7 consultation is We do not consult on proposed Federal determination in a Biological Opinion not required if there is no Federal agency actions that will have no effect and provide one or more Reasonable agency action. For example, section 7 on critical habitat, and we do not and Prudent Alternatives for the Federal consultation is not required when a consult on activities that do not include agency to implement. If we conclude private citizen will engage in an activity a Federal agency action (e.g., no Federal that the proposed activity is not likely on private land that does not require funding for the action and no required to adversely modify or destroy the Federal authorization for the action). any authorization from a Federal critical habitat, then we will make that There are also misconceptions about agency, and does not include any determination in a Biological Opinion what we can exclude and what we must Federal funds to carry out the activity. and the action can occur as originally not include in critical habitat For those activities conducted by proposed. designations. We must not include as private citizens that include a Federal Comment 40: A representative of Bath part of a critical habitat designation any agency action (e.g., the citizen receives Iron Works, a shipbuilder for the Navy, lands or other geographical areas owned funding from a Federal agency or is and a representative of Entergy Nuclear or controlled by the Department of required to obtain a permit from a Indian Point 2, LLC, Entergy Nuclear Defense (DOD) or designated for its use, Federal agency), the Federal agency Indian Point 3, LLC, and Entergy that are subject to an INRMP prepared taking the action is required to consult Nuclear Operations, Inc. (collectively, under section 101 of the Sikes Act, if we with us if the agency determines the ‘‘Entergy’’), an energy company that determine that such plan provides a proposed action may affect any Atlantic owns a power plant, had similar conservation benefit to the species, and sturgeon DPS, its designated critical concerns for the critical habitat its habitat, for which critical habitat is habitat, any other ESA-listed species designations in the Kennebec River for proposed for designation. We also do under our jurisdiction, or its designated the Gulf of Maine DPS, and in the not designate critical habitat within critical habitat. Hudson River for the New York Bight foreign countries or in other areas Federal agency actions that are DPS. Both commenters expressed outside of United States jurisdiction (50 necessary to maintain safe navigation concern that the critical habitat CFR 424.12(h)). We can exclude an area (e.g., maintenance dredging) and designations would increase operational from a critical habitat designation based support commerce are expected to costs, adversely affect the ability to on economic, national security, or other continue to occur following the critical operate, or otherwise impact national relevant impacts if the benefits of habitat designation. ESA section 7 security, and requested that we not exclusion outweigh those of inclusion, consultations considering effects to the designate critical habitat in the vicinity so long as the exclusion will not result Atlantic sturgeon DPSs have occurred of Bath Iron Works on the Kennebec in the extinction of the species since the DPSs were listed in 2012. River or in the vicinity of Indian Point concerned. However, we are not Because Atlantic sturgeon are generally Nuclear Power Plant on the Hudson required to exclude particular areas present in the critical habitat areas, River. from a critical habitat designation based designating critical habitat is unlikely to Our Response: We disagree, and on any of these impacts. increase the number of ESA section 7 appreciate the opportunity to correct As required, we did consider the consultations because Federal agencies some common misconceptions about economic impacts, impacts to national are already required to consult with us critical habitat. The first misconception security, and other relevant impacts of under section 7 for actions that may is what is required or prohibited when the critical habitat designations, affect the listed species. critical habitat is designated. Critical including the conservation benefits of

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the designation, both to the species and the activities also may affect Atlantic lack of any impact to national security, to society. We concluded that economic sturgeon. For example, construction to and the benefit of designating critical impacts of designating critical habitat maintain or update piers can produce habitat for the New York Bight DPS, we for each DPS would be low. Our sounds that disrupt normal behaviors are using our discretion to not exclude conclusion is based on two such as sturgeon foraging, staging, and the security zone area from the critical determinations. First, the primary spawning. Dredging may injure or kill habitat designation in the Hudson River. source of economic impacts as a result sturgeon that come into contact with the Comment 41: One commenter stated of designating critical habitat for the gear (e.g., older juveniles passing we should allow for exclusion of Atlantic sturgeon DPSs are the through as they leave the natal river, designated critical habitat areas administrative costs of conducting ESA adults traveling through the area to and following a facility’s submission of section 7 consultations. Second, because from spawning areas, subadults reports complying with 40 CFR Atlantic sturgeon occur throughout the traveling through the area). Because the 122.21(r) (i.e., National Pollution critical habitat areas designated for the Navy’s activities may also affect the Gulf Discharge Elimination System (NPDES) Gulf of Maine, New York Bight, and of Maine DPS of Atlantic sturgeon and Program Requirements for facilities with Chesapeake Bay DPSs, Federal actions sturgeon from other DPSs that can occur cooling water intake structures). that may affect critical habitat are also in the area, we do not anticipate any Our Response: The ESA does not likely to affect the fish. Therefore, a ESA section 7 consultations to arise provide any mechanism or authority to single section 7 consultation would strictly for the purpose of assessing the us for establishing criteria that would consider both the effects to the DPS and effects of Navy funded, authorized, or automatically exclude parts of a critical to its critical habitat. Our analysis of the conducted activities on designated habitat designation after critical habitat economic impacts of designating critical critical habitat in the Kennebec River. In has been designated. We can change a habitat also considered whether addition, based on the best available critical habitat designation based on modifications were likely to occur. information, we do not anticipate any new information regarding the listed Based on the best available information, ESA section 7 consultations for Navy species and its habitat. Such changes including responses from Federal activities in the Kennebec River will must be made through rulemaking, in agencies that we are likely to consult require modifications to avoid accordance with the same regulations with, we concluded that modifications destruction or adverse modification of used to initially designate critical to Federal actions are unlikely to occur critical habitat based on the past habitat for a species, and must include as a result of section 7 consultations on consultation history and the nature of an opportunity for public comment. effects of the actions to designated the identified categories of activities in Comment 42: The Navy commented Atlantic sturgeon critical habitat. the area. We considered all of the that Naval Weapons Station Earle, Naval We considered at the proposed rule impacts arising from the critical habitat Support Facility Indian Head, Naval stage, the concerns expressed by the designation for the Gulf of Maine DPS, Support Facility Carderock, and Joint Navy that designating critical habitat in and determined the impacts would be Base Anacostia Bolling were described the Kennebec River critical habitat unit coextensive with the impacts from in previous correspondence to us, but adjacent to Bath Iron Works, a private listing the DPS. We will continue to were not addressed in the proposed shipbuilder for the Navy, would affect work with the Navy to address any rule. The Navy asked us to confirm that the Navy’s ability to build and test concerns about the ESA section 7 these facilities do not overlap with any current and future classes of surface consultation process. Finally, should it of the proposed critical habitat units. ships, resulting in a risk to military be necessary, the regulations Our Response: We confirm that Naval readiness and national security. The implementing section 7 of the ESA Weapons Station Earle, Naval Support Navy described the activities likely to allow for informal consultation where Facility Indian Head, Naval Support occur as: Flooding and dewatering dry emergency circumstances mandate the Facility Carderock, and Joint Base docks, updating and maintaining pier need to consult in an expedited manner, Anacostia Bolling do not overlap with structures, including pile driving, and for situations involving acts of God, any of the proposed critical habitat dredging activities to maintain proper disasters, casualties, national defense or units. In February 2014, we requested channel and berthing depths. The security emergencies, etc. the Department of the Navy identify to essential PBFs of critical habitat in the The commenter did not establish how us facilities that occurred within areas area are salinity suitable for older the critical habitat designation would that we were considering for proposed juveniles, open passage for juveniles impact security zones around private critical habitat. After sending the letter, suitably developed to leave the natal facilities, including the Indian Point we changed the boundaries of the river, open passage for adults traveling nuclear facility in the Hudson River critical habitat areas to better identify through the area to and from spawning referenced by the commenter, that are the in-water habitat in which the PBFs areas, open passage for subadults meant to keep unauthorized vessel that may require special management traveling through the area, and soft traffic at a distance from a facility. We considerations or protection occur. As a substrate. Maintaining and/or updating do not foresee that the existence of the result of the change to the boundaries, pier structures may affect open passage security zone and measures in place to Naval Weapons Station Earle, Naval and substrate (e.g., placing more pier maintain that security zone will affect Support Facility Indian Head, Naval structures in the area, altering the the PBFs of critical habitat. For Support Facility Carderock, and Joint substrate to make it more suitable for example, maintaining the security zone Base Anacostia Bolling do not occur the pier structure). Similarly, dredging does not alter the substrate or the water within the critical habitat for the New to maintain proper channel and berthing temperature, nor does it block passage York Bight or Chesapeake Bay DPSs. depths may affect (e.g., remove) the of Atlantic sturgeon moving through the Our October 12, 2016, letter to the substrate that supports juvenile area. Given that, we do not anticipate Deputy Assistant Secretary of the Navy foraging, and change the depth affecting any impacts of the critical habitat for Environment provided our the salinity (e.g., as a result of changes designation on national security related determinations for these facilities. A to mixing in the estuarine river or the to the security zone at the nuclear copy of that letter is provided in extent of saltwater intrusion). However, facility on the Hudson River. Given the Appendix C of the Impacts Analysis and

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Biological Information Source sections 334.260 and 334.270. designating critical habitat is unlikely to Document. Consultation under section 7(a)(2) of the increase the number of ESA section 7 Comment 43: The Navy also ESA is not required for any Federal consultations. commented on our conclusion regarding agency action that may affect the Comment 46: The Navy is also the INRMP for Naval Weapons Station features of Atlantic sturgeon critical concerned that we did not fully Yorktown, a complex of three facilities habitat occurring within the areas consider impacts to national security located on Virginia’s Lower Peninsula described at 33 CFR 334.260 and 33 CFR resulting from the designation of critical between the York and James Rivers, and 334.270. However, consultation under habitat in areas that overlap with naval asked for confirmation that Restricted section 7(a)(2) of the ESA is required for bases and areas owned by naval Area 33 CFR 334.260 and Restricted Federal agency actions if the proposed contractors. A list of areas and Area 33 CFR 334.270 are included in the action may affect any ESA-listed additional information was provided, 4(a)(3)(B) exemption for the York River species. including information that identified critical habitat unit. Comment 44: The Navy requested that areas designated as Restricted Areas and Our Response: Yes. As described in we consider exclusion of Naval Station Surface Danger Zones by the U.S. Army section 1.2 of the INRMP for Naval Norfolk and Portsmouth Naval Shipyard Corps of Engineers (USACE) pursuant to Weapons Station Yorktown, the once INRMPs for these facilities are 33 CFR part 334. As described by the INRMP’s scope comprises all lands, complete and we have reviewed the Navy, Restricted Areas generally ranges, nearshore areas, and leased INRMPs. provide security for Government areas: Owned by the United States and Our Response: We cannot designate as property and/or protection to the public administered by the Navy; used by the critical habitat any lands or other from the risks of damage or injury Navy via license, permit, or lease for geographical areas owned or controlled arising from the Government’s use of which the Navy has been assigned by the DOD or designated for its use, that area, and access is by permission management responsibility; or that are subject to an INRMP prepared only. Surface Danger Zones may be withdrawn from the public domain for under section 101 of the Sikes Act (16 closed to public access on a full time or use by the Navy for which the Navy has U.S.C. 670a), if we determine in writing intermittent basis. been assigned management that such plan provides a conservation Our Response: We carefully responsibility (Navy, 2006). benefit to the species, and its habitat, for considered the information provided by The regulations at 33 CFR 334.260 which critical habitat is proposed for the Navy. For the Chesapeake Bay DPS, describe three areas of the York River designation. Therefore, once any new the Navy provided information on some associated with Naval Weapons Station INRMPs are complete, we will review facilities and training areas that are not Yorktown. Public access is prohibited or the documents. If we conclude that the part of the James River critical habitat restricted in some manner (e.g., vessels INRMP provides a conservation benefit unit. The Lower James River Boat may pass through but not anchor, no to the particular Atlantic sturgeon DPS, Training Area overlapping with trawling or net fishing) for each area, we will initiate a rulemaking to remove Restricted Areas 33 CFR 334.290, and the regulations are enforced by the the area from the critical habitat 334.293, and 334.300; Lower James Commander, Naval Weapons Station designation. River Precision Anchorage and Buoy Yorktown, Virginia, and such agencies Comment 45: The Navy disagrees Mooring Training Areas that overlap as he/she may designate. with our determination that Restricted Area 33 CFR 334.300; and, The regulations at 33 CFR 334.270 for consultations for effects of dredging on portions of the Underwater Light waters of the York River adjacent to critical habitat will be fully coextensive Salvage Operations Dive Training Areas Cheatham Annex Depot of Naval with consultations to address impacts to (e.g., that overlap with Restricted Areas Weapons Station Yorktown restrict Atlantic sturgeon. The Navy believes 33 CFR 334.310, 334.320, 334.350, access by the public. No loitering is that critical habitat can or will result in 334.360, and Danger Zone in § 334.340) permitted within the area, and an additional commitment of resources, do not occur within the James River oystermen may work their own and will require modification of critical habitat unit. The James River leaseholds or public bottom within the proposed actions to prevent adverse critical habitat unit is that part of the area, provided they obtain special effects to critical habitat. James River from Boshers Dam and permission from the Officer in Charge, Our Response: We acknowledge that downstream to where the main stem Cheatham Annex Depot, Naval Supply dredging occurring within designated river discharges at its mouth. The extent Center, Williamsburg, Virginia. The critical habitat may require consultation of the critical habitat unit may have Officer in Charge, Cheatham Annex to ensure Federal actions are not likely been unclear, however, because the Depot, is responsible for enforcing the to destroy or adversely modify critical regulatory text of the proposed rule regulations at 33 CFR 334.270. habitat. However, since all of the critical correctly described the boundaries of Based on the information provided in habitat areas for the Gulf of Maine, New the critical habitat unit, but the map the regulations of Title 33, the areas York Bight, and Chesapeake Bay DPSs incorrectly depicted the James River described by sections 334.260 and are occupied habitat, nearly all those critical habitat unit as including 334.270 are controlled by the DOD and additional consultations will be Hampton Roads. We have corrected the are within the scope of the INRMP for coextensive to consultations that would map. Naval Weapons Station Yorktown. We also occur to consider the impact to the The remaining part of the Lower determined that the INRMP provides a sturgeon that occur in those areas. As James River Boat Training Area (i.e., conservation benefit to the Chesapeake described in our response to Comment overlaps with Restricted Area 33 CFR Bay DPS of Atlantic sturgeon and its 38, ESA section 7 consultations 334.280) and the remaining part of the habitat, for which critical habitat is considering effects to the Atlantic Underwater Light Salvage Operations proposed for designation. Therefore, sturgeon DPSs have occurred since the Dive Training Area (i.e., overlaps with critical habitat for the Chesapeake Bay DPSs were listed in 2012. While some Restricted Area 33 CFR 334.280) occur DPS will not include the specific lands existing consultations may need to be within the James River critical habitat or other geographic areas of Naval reinitiated to consider effects to critical unit. In addition, portions of the Weapons Station Yorktown, including habitat, Atlantic sturgeon are generally Underwater Light Salvage Operations the Restricted Areas described in present in the critical habitat areas, so Dive Training Area occur within the

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York River critical habitat unit (e.g., Complex and explained that the map in Division (NSWCDD), over water testing Restricted Areas 33 CFR 334.260 and the INRMP for Naval Support Facility activities.’’ The INRMP describes the 334.270) of the Chesapeake Bay DPS. Dahlgren (NSF Dahlgren) does not show PRTR Complex which is five land based The Navy also provided information for the entire extent of the danger zones. firing ranges and one water range, the and requested exclusion of the in-water The Navy further commented that we PRTR. However, both the INRMP and parts of the Philadelphia Navy Yard previously determined that the NSF the Water Range Sustainability Annex Reserve Basin and Piers that Dahlgren INRMP provides a benefit to Environmental Program Assessment occur in the Delaware River critical Atlantic sturgeon and its habitat and, in describe the PRTR as the responsibility habitat unit of the New York Bight DPS, accordance with section 4(a)(3)(B) of the of the NSWCDD. The regulations at 33 and of the Portsmouth Naval Shipyard ESA, the particular areas of the facility CFR 334.230 also identify the PRTR as that occurs in the Piscataqua River covered under the INRMP will not be controlled by the NSWCDD, including critical habitat unit of the Gulf of Maine part of the designated critical habitat. for closing one or more of the three DPS. We are not excluding any of these Our Response: We thank the Navy for danger zones on a full-time or from the critical habitat designations. the information. Our consideration of intermittent basis in the interest of In their comments, the Navy states the PRTR was based on the description public safety during hazardous that designating critical habitat: could of the danger zone provided in the operations. shut down, limit or delay operations as regulations at 33 CFR 334.230 and the The Navy, in their comment, a result of the need to consult under Water Range Sustainability described the PRTR as associated with section 7 of the ESA; could increase the Environmental Program Assessment for NSF Dahlgren. The INRMP description frequency and scope of consultation the Potomac River Test Range (May of the land and nearshore areas for NSF requirements; and would likely result in 2013) and the NSF Dahlgren INRMP. Dahlgren supports use of ‘‘associated project delays and additional mitigation Section 4(a)(3)(B) of the ESA prohibits with’’ rather than ‘‘part of.’’ For requirements or modifications not designating as critical habitat any lands example, with the exception of Figure considered during planning. Our ESA or other geographical areas owned or 2–4 depicting the five land based firing section 7 consultation history with the controlled by the DOD or designated for ranges and the PRTR, the illustrations in Navy does not support the Navy’s its use, that are subject to an INRMP the INRMP do not include the PRTR as speculation. The consultation history prepared under section 101 of the Sikes part of NSF Dahlgren. Throughout the demonstrates that Navy activities, Act (16 U.S.C. 670a), if the Secretary INRMP, the Potomac River is described including training, pier maintenance, determines in writing that such plan as being adjacent to NSF Dahlgren and dredging, have occurred since the provides a conservation benefit to the whereas certain Potomac River tidal Gulf of Maine, New York Bight, and species, and its habitat, for which tributaries are described as within the Chesapeake Bay DPSs were listed under critical habitat is proposed for installation, and NSF Dahlgren is the ESA in 2012. As described above, designation. We determined that the described as having only approximately we expect any consultation necessary to INRMP for NSF Dahlgren provides a 6.4 km (4 miles) of Potomac River consider the effects of Navy actions on benefit to the Chesapeake Bay DPS and shoreline. designated critical habitat for these its habitat. However, the PRTR is The INRMP explains that DPSs will be coextensive with outside of the scope of that INRMP. The management of the Dahlgren base consultations on the effects of the scope of the INRMP for NSF Dahlgren previously transferred from the proposed action on the sturgeon. is described as natural resources NSWCDD to Naval District Washington Further, the GARFO ESA Section 7 management on those lands and near- (NDW), which was re-designated as Team has developed methods and tools shore areas at Naval Support Facility NDW West Area and, in 2005, became to help action agencies requesting Dahlgren that are: Owned by the United NSF Dahlgren. The Water Range consultation, and to help expedite the States and administered by the Navy; Sustainability Environmental Program consultation process. used by the Navy via license, permit, or Assessment explains that NSF Dahlgren Finally, as described in our response lease for which the Navy has been is responsible for oversight and to Comment 38, there are conservation assigned management responsibility; maintenance of the land and all benefits of the critical habitat withdrawn from the public domain for structures assigned and constructed on designations, both to the species and to use by the Navy for which the Navy has or in the land, and the NSWCDD society. While we cannot quantify or been assigned management controls the PRTR during hazardous monetize these benefits, we believe they responsibility; and, leased lands on the operations, in the interest of public are not negligible. Once we exclude an installation and areas occupied by non- safety. Both the INRMP and the Water area from a critical habitat designation, DOD entities. Specifically, the INRMP Range Sustainability Environmental we lose the ability to consider the describes the NSF Dahlgren as divided Program Assessment state the Potomac effects of Federal agency actions that ‘‘into two land masses by Upper River is under the jurisdiction of the could adversely modify or destroy Machodoc Creek. Mainside State of Maryland. In August 2016, we designated critical habitat. This could encompasses 2,678 acres on the contacted the Navy and received allow for actions to proceed that would northern side of Upper Machodoc Creek confirmation that the Navy does not result in the loss of habitat containing and is used for operational and support manage the lands or waters of the the PBFs essential to the conservation of activities and military housing. Potomac River that are the PRTR. a DPS, hindering or even preventing Pumpkin Neck, located to the south of We agree that the PRTR is designated recovery of the particular DPS. Upper Machodoc Creek, is 1,641 acres for use by the Navy. However, based on Therefore, given the benefits of and supports two large testing areas and the INRMP, the regulations, and the designation, we did not exclude any scattered testing facilities.’’ In addition, Water Range Sustainability particular area from the critical habitat the INRMP states that NSF Dahlgren Environmental Program Assessment, the units. maintains real estate transactions to ‘‘18 PRTR is not part of those lands or near Comment 47: The Navy provided an small range stations located along the shore areas at NSF Dahlgren that are illustration of the upper, middle, and Potomac River Test Range (PRTR) to ‘‘owned by the U.S. and administered lower danger zones associated with the support [its] primary tenant’s, Naval by the Navy; used by the Navy via Potomac River Test Range (PRTR) Surface Warfare Center, Dahlgren license, permit, or lease for which the

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Navy has been assigned management designation. While we have used the prudent if: (1) The species is threatened responsibility; withdrawn from the best available information and an by taking or other human activity, and public domain for use by the Navy for approach designed to avoid identification of critical habitat can be which the Navy has been assigned underestimating impacts, many of the expected to increase the degree of such management responsibility; or leased potential impacts are speculative and threat to the species; or if designation lands on the installation and areas may not occur in the future. would not be beneficial to the species. occupied by non-DoD entities.’’ We, Our conservative identification of The life history of Atlantic sturgeon is therefore, concluded that the lands and potential incremental economic impacts fairly well described, so designating waters of the PRTR are not subject to the indicates that any such impacts, if they critical habitat will not increase the NSF Dahlgren INRMP, and do not meet were to occur, would be very small and degree of threat to the species from the requirements of 50 CFR 424.12(h) likely to consist solely of the taking or other human activity. In that would prohibit us from including administrative costs of consultation. We determining whether a designation them as critical habitat. recognize the potential that ESA section would not be beneficial, the factors we In revisiting our determination, we 7 consultation stemming from these may consider include but are not considered whether the NSF Dahlgren designations may, sometime in the limited to: Whether the present or INRMP provides a conservation benefit future, result in project modifications threatened destruction, modification, or to the Chesapeake Bay DPS of Atlantic and associated costs. However, curtailment of a species’ habitat or range sturgeon if the lands and waters of the discussions with Federal action is not a threat to the species, or whether PRTR were subject to the INRMP. We agencies identified no instances of past any areas meet the definition of ‘‘critical concluded that the INRMP does not project modifications that would have habitat.’’ For Atlantic sturgeon, the because the management practices in been necessary as a result of Atlantic present or threatened destruction, the INRMP offer limited protection to sturgeon critical habitat having been modification, or curtailment of a the habitat within the PRTR, and the designated, and these discussions and species’ habitat or range has been PRTR covers most of the area that we correspondence with Federal agencies identified as a threat, and the areas we are designating as the Potomac River yielded no suggestions that project have proposed for designation meet the critical habitat unit. Designating this modifications are likely to result from definition of critical habitat, and, area as critical habitat provides a benefit this designation in the future. Further, therefore, designation is clearly prudent. to the Chesapeake Bay DPS, and the even if modifications were to be In addition, while we have determined PBFs in this area are essential to the required to avoid destruction or adverse that the majority of section 7 conservation of the DPS. Therefore, modification of critical habitat, it is consultation costs would already be management practices in the INRMP extremely unlikely that modifications incurred based on the listing of the would have to provide a similar that would be required to avoid species, we determined there will be conservation benefit, either directly or destruction or adverse modification of additional benefits when impacts to indirectly addressing the PBFs that may critical habitat would not also be critical habitat are assessed during require special management required to avoid jeopardizing the consultations. Designating critical considerations or protection. species. Therefore, project modification habitat identifies areas where Federal Comment 48: Newport News costs resulting solely from these critical agencies can focus their conservation Shipbuilding expressed concern that habitat designations are likely to be programs and use their authorities to designating critical habitat in the lower small, if they were to occur. further the purposes of the ESA. It also James River would have economic Comment 49: An industry trade group helps focus the conservation efforts of impacts and impacts to national pointed to our determinations that the other conservation partners, such as security. The commenter proposed that majority of the section 7 consultation we make appropriate exclusions for costs would already be incurred based State and local governmental industries that demonstrate insignificant on the listing of the Atlantic sturgeon organizations, and individuals. In and discountable impact to and/or itself and that ‘‘[i]t is extremely unlikely addition, we found that there will be appropriate mitigations for the Atlantic that [project] modifications that would numerous conservation benefits to sturgeon. be required to avoid destruction or Atlantic sturgeon, its ecosystem, and to Our Response: We considered adverse modification of critical habitat the public, resulting from the whether to use our discretion to exclude would not also be required because of designation. Therefore, we believe that areas from the critical habitat adverse effects to the species.’’ They designation of critical habitat for designations. We declined to exercise wondered, if there are no categories of Atlantic sturgeon is beneficial to the our discretion and did not exclude any permits or other Federal activities that species. areas. Critical habitat is the specific would be impacted solely or even Comment 50: An industry trade group areas on which are found the PBFs primarily by consultation over impacts suggested we had failed to perform the essential to the conservation of the to designated critical habitat (rather requisite analysis of whether certain species and which may require special than impacts to the listed species), what areas should be excluded. They believe management considerations or is the purpose of designating critical that to comply with our statutory protection. It is the presence of the PBFs habitat? They went on to state that if mandate to consider whether the and the PBFs’ potential need for special designation of critical habitat is ‘‘not benefits of excluding areas from the management considerations or prudent,’’ we should not make such a critical habitat designation outweigh the protection that dictates the designation, designation. benefits of designation, we must provide not the effect a particular industry at a Our Response: We are required by some specific analysis of the given point in time may have on the section 4(a)(3) of the ESA to designate conservation benefits derived from PBFs. critical habitat when we list a species as designating specific areas compared to We considered the economic impacts endangered or threatened. We may the economic costs of designating those of designating critical habitat in the decline to designate critical habitat for areas. They indicated we made no James River, impacts to national a species, if doing so is ‘‘not prudent.’’ attempt to carve out less valuable areas security, and the expected impact to Our regulations (50 CFR 424.12) explain based on economic, national security, or species recovery resulting from the that designation of critical habitat is not other relevant impacts. They claimed

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our analysis is cursory and grossly Based on that analysis, we have a result of critical habitat designations. inadequate, because we do not evaluate elected to exclude the Santee-Cooper The Federal agencies did not identify whether the benefits of exclusion river system (CU1) and Savannah River any modifications. We used a 10-year outweigh the economic costs of (SAU1) unoccupied units of critical history of ESA section 7 consultations to designation for particular areas that will habitat, because the benefits of inform the number and type of ESA be designated (aside from areas of exclusion (that is, avoiding some or all section 7 consultations likely to occur in concern to the Navy). of the impacts that would result from the future. To address uncertainty, the Our Response: The commenters’ designation) outweigh the benefits of economist provided three different argument misstates the requirements of designation. scenarios that affected the overall the ESA. Section 4(b)(2) of the ESA Comment 51: A commenter stated the estimated costs associated with the contains two distinct elements: An economic analysis discussed in the critical habitat designations. Despite initial mandatory consideration of preamble and supplementary receiving information from Federal impacts of a designation, and a separate information is focused exclusively on agencies that no modifications were discretionary exclusion provision. The the administrative costs to the Federal anticipated, the economist also ESA does not require use of any agencies of ESA section 7 consultations, presented information for modification particular methodology in the and these costs are not inconsequential. costs based on consultations for Federal consideration of impacts, let alone They go on to state that, for the New agency actions that may affect ESA- require comparing the benefits of York Bight DPS, the projected medium listed salmon species, as salmon were designation to the benefits of excluding and high costs are estimated to equal considered a reasonable proxy for certain areas as part of this portion of approximately $2.83 and $5.57 million, Atlantic sturgeon for this analysis. For section 4(b)(2) (see, e.g., Building respectively. The preamble states that example, project modifications might Industry Association of the Bay Area v. ‘‘[a]ny incremental economic impacts include date restrictions, use of silt U.S. Department of Commerce, 792 F.3d will consist solely of the administrative fences, upland disposal of excavated 1027 (9th Cir. 2015)). Similarly, the ESA costs of consultation; no project material, maintenance of all heavy does not require that we carve out ‘‘less modifications are projected to be equipment to minimize pollutant valuable’’ areas of critical habitat. required to address impacts solely from release, use of a bubble curtain to In our proposed rule, we explained the proposed critical habitat.’’ The minimize sound effects, and pollution our preliminary determination that we commenter claims that no estimates are and erosion control. would not exercise our discretion to presented of costs to applicants for We consider the incremental impacts consider exclusions. However, based on projects funded, authorized or carried of critical habitat designations (i.e., the input received during the public review out by Federal agencies (for example, impacts that would occur in the absence process raising concerns about the projects subject to Clean Water Act of any other action (78 FR 53058; impacts and uncertainties associated actions for which ESA consultations are August 28, 2013)). The costs of the with unoccupied critical habitat, and likely), including analyses of the critical habitat designations are the costs questions raised about the nature of the impacts of a project, the time needed for of conducting ESA section 7 conservation values these unoccupied consultation, and any specific consultations (i.e., the administrative units provide, we determined that requirements deemed necessary for the costs of section 7 consultation, which conducting a discretionary exclusion project. The commenter also states that include the projected costs to NMFS, analysis for areas of unoccupied critical the estimated administrative costs, the the Federal agency taking the action, habitat areas in the Carolina and South large number of activities entailing and the third party (e.g., applicant), and Atlantic DPS was warranted. Given that Federal action, and the complexity of the cost of completing a biological occupied units are currently used by the essential PBFs identified and assessment). Because the Federal Atlantic sturgeon for reproduction and potentially requiring consideration agencies would most likely have to recruitment, and due to the severely dictate that the final rule should address consult with us anyway given presence depressed levels of all river populations these additional economic costs. of Atlantic sturgeon and, in many cases, in all 5 DPSs, occupied units are far too Our Response: The designation of other ESA-listed species within the valuable to both the conservation and critical habitat requires Federal agencies critical habitat areas, the incremental the continuing survival of Atlantic to consult with us under section 7 of the cost of the critical habitat designations sturgeon to be considered for exclusion. ESA if their proposed action may affect will be low. Therefore, the medium and Section 4(b)(2) of the ESA provides critical habitat. Designating critical high cost estimates are not likely that the Secretary may exclude any area habitat does not affect the activities of representative of the costs of the critical from critical habitat if he determines private individuals conducting activities habitat designations. Even the low cost that the benefits of such exclusion on private land unless those activities estimates likely overestimate the outweigh the benefits of specifying such are federally-funded or require federal economic impact of the critical habitat area as part of the critical habitat. This authorization. Therefore, in terms of the designations for the Gulf of Maine, New is true unless he determines, based on economic impacts of a critical habitat York Bight, and Chesapeake Bay DPSs the best scientific and commercial data designation, the costs are those because the critical habitat designations available, that the failure to designate associated with conducting informal or are unlikely to result in more ESA such area as critical habitat will result formal ESA section 7 consultations, section 7 consultations then would have in the extinction of the species including preparation of consultation occurred in the absence of critical concerned. The legislative history documents. Preparation of a license habitat. regarding section 4(b)(2) exclusion application is not a cost of ESA section Comment 52: An industry trade group analyses suggests that the consideration 7 consultation because the license suggested we had significantly and weight given to impacts is within application is required separate from underestimated the true costs to a the Secretary’s discretion (H.R. 95– any critical habitat designation. permittee, because we had not included 1625), and the Secretary is not required The economist who drafted the potential costs associated with to give economic or any other ‘relevant economic analysis contacted Federal employing biologists, other consultants, impact’ predominant consideration in agencies for input on the number and or legal support they believe may be his specification of critical habitat. type of modifications that may occur as necessary to navigate the consultation

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process. They went on to state that Atlantic DPSs of Atlantic Sturgeon time-consuming and costly ESA section consultation could cause project (Industrial Economics, 2014)). In 7 consultation requirements if they modifications, additional avoidance criticizing our impacts analyses, the intersect and may affect areas measures, or require additional commenter cites Sundig (2003) and its designated as critical habitat. They mitigation above what was required by conclusion that costs of consultation for stated that consultation with NMFS the action agency. The commenters a single-family housing project are often results in modification, delay, or reported Sundig (2003) estimated the estimated to be several thousand dollars other changes to projects, with direct, out-of-pocket costs of section 7 per house. While we find Sundig (2003) potentially significant adverse impacts consultation for a single-family housing to be too hypothetical and generalized on their customers’ access to reliable project to be several thousand dollars to warrant changes in our analysis, as and secure energy supplies at a per house. Beyond the consultation discussed above, our analysis does reasonable cost, and without process itself, the commenters suggested include estimated permittee costs of commensurate (if any) demonstrated requirements to avoid or mitigate consultation not obviously dissimilar to benefit to the listed species. impacts to critical habitat could result Sundig’s (2003) ‘several thousand Our Response: The ESA requires in economic losses of millions of dollars’ per permittee. In addition, it consultation when a Federal agency dollars. The commenters concluded that does not appear that Sundig (2003) took action may affect a listed species or by severely underestimating the number into account that at least some and critical habitat. We agree that many of consultations that will be triggered by possibly most of the impacts and costs projects have impacts that are minimal. the proposed designations and the costs described are co-extensive with the If a project will have no effect on critical of those consultations, we failed to listing of the species, and not habitat, there would be no section 7 provide a meaningful analysis of section attributable solely to critical habitat consultation on effects to critical 7 consultation costs. designation. We see no basis to change habitat. If effects are insignificant or discountable, consultation is completed Our Response: We disagree. In our our impacts analysis based on this informally via a letter exchange between impacts analyses we did not assert that comment. Comment 53: A commenter the Federal agency and NMFS. We do no project modifications would be representing two agency groups stated not expect consultations on small required to address impacts to critical that the sweeping critical habitat projects to be time consuming or costly habitat. Rather, we concluded that the designations would impede critical for Federal agencies or applicants. The same project modifications would most economic growth, including activities commenter did not provide specific likely address any adverse impacts to that are necessary to sustain the U.S. information regarding any consultation both sturgeon and to critical habitat, and economy, without commensurate that had the potential to significantly as such, these costs are not solely benefits to the Atlantic sturgeon. impact access to reliable and secure attributable to the critical habitat Our Response: We disagree. The energy supplies at a reasonable cost and designation. Our impacts analyses economic analysis for designating we are not sure what consultations the discuss the types of project critical habitat for the Gulf of Maine, comment refers to, on what types of modifications that might be required to New York Bight, and Chesapeake Bay projects or listed species. The address adverse effects to critical habitat DPSs of Atlantic sturgeon provides commenter did not provide context or for all the Federal activities projected to information on the economic impacts of specific examples supporting the require consultation over the next 10 the critical habitat designations, and comment that consultations with us years. The commenters stated we did addresses uncertainty by presenting often result in modification, delay, or not include potential costs associated costs for scenarios that are not likely to other changes to projects and we with employing biologists, other occur. The draft economic analysis was disagree with this claim. The contracted consultants, or legal support that they peer-reviewed by three experts before it economist contacted Federal agencies believe may be necessary to navigate the was released for public comment at the for information on any consultations consultation process. As noted same time as the proposed rule. Our with us that resulted in project previously, we anticipate that in nearly review of the likely economic impacts of modifications that might be required all cases, section 7 consultations would the critical habitat designations is again in the future due to critical habitat likely have been required to consider provided in the proposed rule and designation. None of the Federal potential adverse effects to Atlantic and/ Impacts Analysis and Biological agencies identified any such or shortnose sturgeon for any action Information Source Document. As consultations. In fact, the majority of potentially affecting Atlantic sturgeon described, the best available information ESA section 7 consultations with us are critical habitat. These costs would be supports that incremental economic concluded informally and never rise to incurred even without the designation. impacts as a result of the critical habitat the level of a formal consultation with However, we also projected that every designations for the Gulf of Maine, New a biological opinion issued by us, and future consultation will involve York Bight, and Chesapeake Bay DPSs thus would not involve modifications or additional administrative costs, will be low. delays that result in significant including costs to third parties such as There are conservation benefits of the economic impacts. permittees or applicants, related to the critical habitat designations, both to the We disagree with the commenter’s additional analyses added to a species and to society. While we cannot claim that consultation with NMFS does consultation to address critical habitat. quantify nor monetize these benefits, we not result in demonstrated benefits to These costs would depend on the believe they are not negligible and are listed species. Informal consultation complexity of the consultation and an incremental effect of the (i.e., concurrence with a not likely to whether the permittee is required to designations. adversely affect determination) is a produce a biological assessment (see Comment 54: A commenter stated that simple process that confirms that effects Economic Analysis for the Gulf of many project impacts are minimal (e.g., of an action will be wholly beneficial, Maine, New York Bight, and placing a pole on an islet or bar to allow insignificant or discountable. Formal Chesapeake Bay DPSs, (Table 3–6) and an aerial electric line to cross a river) consultation, resulting in a Biological Impacts Analysis of Critical Habitat and would not be likely to impact the Opinion, allows proposed Federal Designation for the Carolina and South Atlantic sturgeon, but would trigger actions to move forward and even result

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in adverse effects to listed species, but ESA section 7 consultation, may also from the Wildlife and Sport Fish requires implementation of measures affect listed species, including Atlantic Restoration Program to 11 Northeast that minimize the effects of take of sturgeon. Therefore, designating critical states and the District of Columbia. listed species. For critical habitat, habitat is unlikely to result in an Neither of these biological opinions benefits of consultation include increase in the number of ESA section considers effects of the action(s) to ensuring that critical habitat is not 7 consultations. Consultation that has proposed critical habitat for any likely to be destroyed or adversely been completed may need to be Atlantic sturgeon DPS because the modified, or identifying minor changes reinitiated if the reinitiation triggers biological opinions were completed to projects that can avoid or minimize have been met. Reinitiation is required before the proposed critical habitat adverse effects. The benefits of when a new species is listed or critical designations. designating critical habitat as well as the habitat designated that may be affected In a memo to the Greater Atlantic requirement to designate critical habitat by the identified action. We anticipate Regional Fisheries Office, the NEFSC are described in the proposed rulesrules that consultations will need to be determined, following publication of the for these Atlantic sturgeon critical reinitiated once the final rule is critical habitat proposed rule, that the habitat designations. Recovery of ESA- effective. However, this does not actions described in our biological listed species is often a lengthy process. necessarily mean that permits will be opinion that considered their NEFSC’s Progress towards meeting recovery goals reopened or that actions will need to be fisheries and ecosystem research of down-listing and de-listing are modified. Modifications to ongoing program are not likely to result in the anticipated benefits of all of the actions activities would only be required where destruction or adverse modification of taken to recover ESA-listed species, a Federal agency has ongoing proposed critical habitat. We concurred including designating critical habitat. discretionary control and when the with the determination. Therefore, action is likely to result in the Comments on ESA Section 7 because we do not anticipate any destruction or adverse modification of Consultation changed circumstances, we do not critical habitat and we issue a biological anticipate the need to reinitiate the Comment 55: A commenter sought opinion that includes reasonable and NEFSC programmatic consultation at confirmation that the statement, ‘‘we prudent alternatives. It is important to this time. We will continue to work determined that any resulting note that in nearly all existing section 7 with the NEFSC and the USFWS to consultations will likely be consultations on Atlantic sturgeon, we expeditiously complete ESA section 7 coextensive’’ means that there will not have included an analysis of effects to consultations necessary for fisheries be an increased consultation burden for habitat. research and fisheries monitoring. updating or maintaining pier structures We have been working closely with Comment 57: A few commenters, (including pile driving), or for new, action agencies during the rulemaking including an industry trade group, currently unpermitted dredging, fill, or process and have provided information expressed concern about potential discharge activities in the Kennebec on the triggers for reinitiation as well as delays for projects already undergoing River, and an Atlantic sturgeon critical when conference under section 7(a)(4) consultation that would now have to habitat designation for the Kennebec of the ESA is necessary. Further include an analysis of adverse River will not provide a basis to reopen information about ESA section 7 modification for Atlantic sturgeon existing dredging permits to require consultation is available at https://www. critical habitat, as well as previous additional consultation. greateratlantic.fisheries.noaa.gov/ Our Response: For clarification, the protected/section7/index.html. consultations that may need to be requirement to consult under ESA Comment 56: The Atlantic States reinitiated based on the new critical section 7 is for Federal agencies if the Marine Fisheries Commission stated habitat designation. agency anticipates taking an action that that we should consider the stock Our Response: We acknowledge may affect ESA-listed species or assessment needs and management delays are possible. We recommend that designated critical habitat. Private impacts from ESA section 7 Federal action agencies work with us to citizens do not consult with us under consultations, and conduct ESA section provide the appropriate information as ESA section 7 but, as applicants for 7 consultations expeditiously to avoid identified at 50 CFR 402.14(c)(1)–(6) to Federal agency actions (e.g., permits) or delays in fisheries research or sampling. assess impacts to critical habitat as soon potential recipients of Federal funding, Our Response: We acknowledge the as possible to limit delays. We also note private citizens may engage with the concern for the length of time that is that Federal actions undergoing action agency (i.e., the Federal agency sometimes necessary to complete ESA consultation that may affect Atlantic or funding, authorizing, or carrying out an section 7 consultations. We have taken shortnose sturgeon would already be action) during the ESA section 7 several steps in the past year to address required to analyze impacts to those consultation with us. these concerns, including additional species’ habitats, whether they are We, as the consulting agency, cannot online resources for technical designated as critical habitat or not. foresee every circumstance that might assistance, an Expedited Consultation Thus, any delays due solely to this rule require ESA section 7 consultation. Program, and programmatic approaches should not be significant. However, based on the best available to consultations where possible. Comment 58: The USACE expressed information for the presence of Atlantic Currently, there are two biological concern that we may be relying on sturgeon and other ESA-listed species in opinions for federally funded, historical (1870s) data that may not the Kennebec River critical habitat unit, authorized, or implemented actions to reflect current day conditions or information from Federal agencies support fisheries research and sampling documented scientific data, and regarding anticipated agency actions in Federal and state waters from cautioned that until detailed scientific and past modifications to projects as a Virginia through Maine. These are data are provided that clearly result of ESA section 7 consultation, programmatic consultations for (1) the documents the existence of a fall and the past 10-year consultation Northeast Fisheries Science Center’s spawning season in the Hudson River history, we determined the most likely (NEFSC) fisheries and ecosystem upstream of Kingston, New York, no scenario is that agency actions that may research, and (2) surveys undertaken further restriction to the current affect critical habitat, and thus require under the USFWS issuance of funds dredging window is warranted.

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Our Response: We do not issue Consultation Program on our Web site. 2015. The commenters also requested restrictions on the timing of dredging in For further information, see that we require Virginia Power and the Hudson River Federal Navigation www.greateratlantic.fisheries.noaa.gov/ Electric Company (‘‘Dominion’’) to Channel. We have worked with the protected/section7/index.html. submit a habitat conservation plan as USACE to recommend time of year Additional information, including links soon as possible once the critical habitat ‘‘windows’’ in which dredging is least to policies, guidance, and regulations designations have been finalized, and likely to interact with listed species, associated with ESA section 7 is that we finalize the proposed rule as including Atlantic sturgeon. available at www.nmfs.noaa.gov/pr/ soon as practicable. The features of Atlantic sturgeon consultation/. Briefly, a Federal agency Our Response: Information posted by critical habitat are expected to be must consult with us if the agency is the VADEQ provides the background for present year-round. Therefore, ‘‘dredge authorizing, funding or carrying out an our response (for the complete text go to windows’’ are more effective for action that may affect listed species or www.deq.virginia.gov/Programs/Water/ avoiding effects to ESA-listed species critical habitat. An action that results in PermittingCompliance/ than for avoiding effects to Atlantic wholly beneficial effects is not exempt PollutionDischargeElimination.aspx). sturgeon critical habitat. Regardless, we from the requirements of ESA section 7 Section 402 of the Clean Water Act would ensure that any consultation. established the NPDES program to limit recommendations to the USACE or any Informal consultation is an optional pollutant discharges into streams, rivers, other party are based on the best process that includes all discussions, and bays. The U.S. Environmental available information. correspondence, etc., between us and Protection Agency (EPA) delegates the We included mention of the 1870s era the Federal agency to assist the Federal authority to implement the NPDES data as part of our review of information agency in determining whether formal program to states where certain for the critical habitat designations, and consultation is required. Informal conditions have been met. Virginia evidence of fall spawning in rivers consultation can be initiated as early as received authorization from EPA to where Atlantic sturgeon spawn. the effects of a proposed Federal action administer the NPDES base program on However, as we stated in the can be identified. We provide March 31, 1975; for Federal facilities on Background section of the proposed information at the web addresses listed February 9, 1982; for pretreatment on rule, spring is the only currently known above to help Federal agencies April 14, 1989; and for general permits spawning period for the New York Bight determine, at the earliest opportunity, on May 20, 1991. The VADEQ DPS. There is no information that fall whether and when to initiate administers the program as the Virginia spawning currently occurs in the consultation with us. We also provide Pollutant Discharge Elimination System Hudson River. technical assistance to Federal agencies (VPDES), and issues VPDES permits for Comment 59: A commenter asked if related to questions of whether and all point source discharges to surface consultation is required even if the where species and designated critical waters, to dischargers of stormwater Federal action does not destroy or habitat occur to help action agencies from Municipal Separate Storm Sewer adversely modify current habitat. The determine whether their actions may Systems, and to dischargers of storm commenter further directed us to affect listed species or critical habitat. water from industrial activities. Further, address whether actions that improve The ESA section 7 implementing the VADEQ issues Virginia Stormwater the essential PBFs, such as those for regulations (50 CFR 402.11) address Management Program (VSMP) permits improving water quality, are subject to ‘‘early consultation’’ as a preliminary to dischargers of stormwater from the consultation provisions of section consultation requested by a Federal Construction Activities. The EPA 7(a)(2) of the ESA, and to identify the agency on behalf of a prospective permit maintains authority to review earliest stage in the regulatory process or license application prior to the filing applications and permits for ‘‘major’’ that such consultation may be initiated. of an application for a Federal permit or dischargers, a distinction based on Our Response: Current habitat is not license. The ESA and its implementing discharge quantity and content. the same as designated critical habitat. regulations do not identify the earliest The VADEQ issued a VPDES permit The ESA and the regulations opportunity for consultation; however, to Dominion Chesterfield Power Station implementing section 4 of the ESA in practice, the earliest opportunity for on September 23, 2016. For further emphasize that, except in those entering into formal consultation is information on this permit, go to http:// circumstances determined by the when there is a proposed action that is www.deq.virginia.gov/Programs/Water/ Secretary, critical habitat shall not far enough along in development that PermittingCompliance/VPDESPermit include the entire geographical area the effects can be predicted and are Actions.aspx#Chesterfield. Because which can be occupied by the reasonably certain to occur. issuance of the permit was a state threatened or endangered species. Once Comment 60: Two commenters agency action, not a Federal agency critical habitat is designated, section requested we engage with the Virginia action, there is no requirement for ESA 7(a)(2) of the ESA requires that a Federal Department of Environmental Quality section 7 consultation on issuance of the agency, in consultation with us (or with (VADEQ) concerning Dominion’s VPDES permit. A non-Federal entity can the USFWS for ESA-listed species under Chesterfield Power Station, which they apply for an ESA section 10(a)(1)(B) their jurisdiction), insure that any action identified as directly adjacent to Incidental Take Permit to cover it authorizes, funds, or carries out is not Atlantic sturgeon spawning habitat on otherwise lawful actions that may result likely to jeopardize the continued the James River. They commented that in takes of an ESA-listed species. existence of any endangered species or the NPDES Permit (issued by VADEQ) A representative of Virginia Power threatened species or result in the would authorize activities at and Electric Company notified us of the destruction or adverse modification of Chesterfield Power Station that are incidental entrainment of the two designated critical habitat. likely to take endangered species and/or Atlantic sturgeon larvae following their The Greater Atlantic Region, significantly degrade or destroy Atlantic identification. We began discussions Protected Resources Division provides sturgeon critical habitat, and these with their staff regarding application for information on the ESA section 7 activities resulted in the entrainment of an ESA section 10(a)(1)(B) Incidental consultation process, including two Atlantic sturgeon larvae at Take Permit, including submission of a technical assistance, and the Expedited Chesterfield Power Station in October Habitat Conservation Plan (HCP), in

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June 2015. While a draft HCP has been as well as in person to increase implementation of myriad other submitted to us, we cannot predict opportunities for the interested public activities, may propose actions that may when the HCP will be finalized or when that would otherwise have had to travel affect critical habitat. The designation of an Incidental Take Permit will be to the hearing location. We did not critical habitat ensures that the Federal issued. We will publish a notice in the receive any public comments during the Government considers the effects of its Federal Register and provide an public hearings, and we did not receive actions on habitat important to species’ opportunity for public comment when any requests for additional public conservation and avoids or modifies we determine the application is hearings. We also held four those actions that are likely to destroy sufficient. informational meetings during which or adversely modify critical habitat. we provided an overview of the There are conservation benefits of the Other Comments on the Process for proposed rule as a slide presentation, critical habitat designations, both to the Designating Critical Habitat and answered procedural questions to help species and to society. While we cannot Comments Outside the Scope of This the public formulate their comments, quantify or monetize these benefits, we Rulemaking and clarified the instructions for believe they are not negligible and are Comment 61: A commenter stated the submitting comments. Additionally, we an incremental effect of the driving force behind the proposed posted information on our Web page, designations. critical habitat designations has been including the slide deck presented at Comment 63: The commenter the pressure and deadlines of litigation, the public information meetings and acknowledged that spawning occurs for not the underlying science or an urgent public hearings, and held an shortnose sturgeon in the upper need to designate critical habitat to informational webinar for Federal Delaware River and believes that protect the Atlantic sturgeon. The agencies. We used our discretion to go Atlantic sturgeon possibly spawn in the commenter concluded that NMFS has beyond the requirements of the ESA and upper Delaware River but stated actual not taken sufficient time to make careful its implementing regulations and spawning of Atlantic sturgeon has never critical habitat determinations, nor has provided multiple means for public been directly documented. it afforded the public a sufficient participation. Our Response: Atlantic sturgeon are opportunity for meaningful Comment 62: A commenter stated spawning in the Delaware River. There participation. there is no substantial value to are several lines of evidence Our Response: As described in our designating critical habitat which demonstrating spawning occurs. First, response to Comment 37, the ESA requires additional regulatory burden Atlantic sturgeon less than 1-to 2-years requires that we designate critical with limited value to increasing old are captured in the Delaware River. habitat at the time a species is listed or, population levels of the species. The Atlantic sturgeon this young do not if not determinable at that time, within commenter stated that each Federal have the salinity tolerance to leave the 1 year of listing. The only other action in the Delaware River associated natal estuary and travel through full exception is if designating critical with permitting considers the presence saline waters to other lower salinity, habitat is not prudent for the species. of shortnose and Atlantic sturgeon, and estuarine waters that are necessary for However, this circumstance rarely considers how each aspect of a project rearing. Therefore, presence of Atlantic occurs. We failed to meet this 1-year will affect the species. The commenter sturgeon less than 2 years old in the deadline and are currently subject to a notes that consultation is initiated when Delaware River is evidence that Atlantic statutory deadline and a court-order to appropriate and that the opportunity for sturgeon are spawning in the Delaware. complete the designation. While we any additional benefits associated with Genetic analyses have shown that agree that litigation has influenced our critical habitat designation would be Atlantic sturgeon natal to the Delaware timeline, we disagree that we have not limited. River have a unique genetic structure. made careful determinations or Our Response: The ESA requires that Such uniqueness arises when adults provided the public with opportunities we designate critical habitat for each characteristically return to spawn in the for meaningful participation. species (including subspecies and DPSs) river in which they were spawned and The critical habitat designations for that we list under the ESA unless mixing with other populations is the Gulf of Maine, New York Bight, and designation is not prudent for the listed limited. Chesapeake Bay DPSs of Atlantic species. A determination that critical Year after year, male and female sturgeon were proposed more than 4 habitat is not prudent is rare and is Atlantic sturgeon in spawning condition years after the DPSs were listed as made only when the species is occur in the Delaware River in areas and endangered or threatened. We began the threatened by taking or other human at times when spawning would occur. process of designating critical habitat in activity, and identification of critical In addition, the reporting and retrieval 2012. We initially provided a comment habitat can be expected to increase the of dead large, adult Atlantic sturgeon in period of 90 days, 30 days longer than degree of such threat to the species, or the Delaware River, sometimes with typical for critical habitat designations. when designation of critical habitat evidence of spawning condition such as In response to requests for extension, we would not be beneficial to the species. ripe eggs or milt, occurs more frequently reopened the comment period for an The designation of critical habitat in the spring; the time period when we additional 15 days of comment, making provides a significant regulatory expect Atlantic sturgeon spawn in the the total comment period 105 days. protection—the requirement that Delaware River. We must hold a public hearing on a Federal agencies ensure, in consultation The opportunity to witness sturgeon proposed critical habitat designation at with the Services under section 7(a)(2) spawning is difficult given the the request of the public. Despite of the ESA, that their actions are not environment in which they spawn, and receiving no such requests, we chose to likely to destroy or adversely modify human observation of spawning hold two public hearings and critical habitat. The Federal sturgeon is potentially harmful to announced those in the proposed rule Government, through its role in water sturgeon (e.g., as a result of disrupting and on our Web page, in emails sent to management, flood control, regulation spawning). Sturgeon researchers are our distribution lists, and a newspaper of resource extraction and other required to minimize harm to Atlantic with regional readership. We made the industries, Federal land management, sturgeon, including minimizing public hearings available by telephone and the funding, authorization, and disruptions of spawning behavior, and

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the public is cautioned to not approach that could have a significant effect, preservation and conservation of the areas where spawning may be occurring along with related costs, on non-Federal species in question. (e.g., as evidenced by breaching government entities, including small Our Response: We have been sturgeon). The available information is governments (municipalities) and delegated authority from the Secretary sufficient to establish that spawning private parties. The commenter asked if of Commerce to carry out the occurs in the Delaware River, despite this will result in unfunded mandates. requirements of the ESA for species spawning activity, eggs, or larvae, not Our Response: We are unaware of any under our jurisdiction, including the being observed in the River. changes to the Clean Water Act as a five Atlantic sturgeon DPSs. The Comment 64: An industry trade group result of a critical habitat designation. consultation process, as described in indicated we made no attempt to We encourage the commenter to discuss section 7(a)(2) of the ESA, provides establish any connection between the their concerns with the EPA. opportunity for us to work with Federal threats to Atlantic sturgeon described in Comment 66: A commenter stated that agencies to address impacts of agency the listing rule and critical habitat. They development and industrial practices actions on the species. If we determine suggested we have not evaluated or have hindered recovery of Atlantic a Federal agency action is likely to explained how designation of critical sturgeon. They stated that there is an jeopardize the continued existence of a habitat will benefit the species, or help immediate need to lower pollution in all listed species (a ‘‘jeopardy biological address injury/death resulting from tributaries and to eliminate all opinion’’) or result in the destruction or inshore trawling or overfishing. unnecessary killing of larvae and young adverse modification of critical habitat Additionally, they indicated we have sturgeon, and the invertebrates they feed (a ‘‘destruction or adverse modification’’ not explained how the designation of upon and that all facilities that currently biological opinion), the biological ‘‘these vast areas would provide new or draw water from our rivers or bays for opinion will include reasonable and additional minimization of habitat cooling purposes should change over to prudent alternatives to modify the alteration or destruction.’’ closed-loop operations. In addition, the action to avoid the likelihood that the Our Response: The ESA does not commenter stated that pollution could action will jeopardize the continued require that critical habitat address the be lowered, and DO improved, using existence of a listed species or result in specific threats that led to the listing of natural vegetation in a manner that does the destruction or adverse modification the species or avoid injury or death from not infringe on navigation. of critical habitat. particular activities. However, in the Our Response: We appreciate the Comment 68: A commenter stated that case of Atlantic sturgeon, designation of information for addressing water quality the Final Environmental Impact critical habitat will help address the for Atlantic sturgeon. This comment is Statement for the City of Rehoboth present or threatened destruction, beyond the scope of this critical habitat Beach proposed ocean outfall modification, or curtailment of the designation. However, once critical incorrectly concludes the outfall will species’ habitat or range, which was habitat is designated, we will work with not have an impact on the diversity and identified as a threat contributing to the action agencies if a proposed or ongoing density of the benthic region. The threatened or endangered status for Federal action may affect that habitat. commenter stated that establishment of these DPSs. Critical habitat designations Finally, there are other laws that sturgeon critical habitat in this identify habitat features and areas address water quality, including the important area should disavow this essential to the conservation, and thus Clean Water Act, in areas where conclusion, and protect and conserve recovery, of the species. In terms of Atlantic sturgeon critical habitat occurs. the benthos. benefits of critical habitat in providing Section 316(b) of the Clean Water Act Our Response: We are not designating protection from habitat alteration or requires EPA to issue regulations on the critical habitat in marine waters, destruction, designation of critical design and operation of cooling water including marine waters off Rehoboth habitat also provides significant intake structures, in order to minimize Beach, Delaware. The marine waters off regulatory protection—the requirement adverse impacts. Further information Rehoboth Beach are part of the that Federal agencies ensure, during can be found on the EPA Web site at geographical area occupied by each of section 7 consultation, that their actions https://www.epa.gov/cooling-water- the five Atlantic sturgeon DPSs. To are not likely to destroy or adversely intakes. designate critical habitat for one or more modify critical habitat. Designating Comment 67: A commenter stated the of the Atlantic sturgeon DPSs in the critical habitat also identifies areas Department of Interior must address marine environment, we must first where Federal agencies can focus their present-day impacts in Delaware such identify the PBFs essential to the DPSs, conservation programs and use their as beach fill projects, the Delaware River and which may require special authorities under ESA section 7(a)(1) to Deepening project, maintenance management considerations or further the purposes of the ESA by dredging of the Delaware River for the protections. See our response to carrying out programs for the next 50 years, the proposed ocean Comment 20. conservation of listed species. It also outfall off Rehoboth Beach, as well as Comment 69: A commenter requested helps focus the conservation efforts of the impacts of past and present that as soon as levels are sustainable, a other conservation partners, such as industrial sites which contributed to the limited catch and release fishery for State and local governmental decline in water quality. They stated Atlantic sturgeon should be established, organizations, and individuals. that deepening of the Delaware Bay with a special permit, for once a year Therefore, we believe that designation (2015) and the new USACE sand borrow use and a high fee, $500 to $1,000, and of critical habitat for Atlantic sturgeon site Area B (2016) in Delaware have the fee should be used to enhance that is beneficial to the species and will compromised and will undoubtedly fishery. directly address habitat alteration and continue to compromise the health of Our Response: Consideration of any destruction issues. the benthic food chain for the sturgeon. new Atlantic sturgeon fishery is beyond Comment 65: A commenter stated that The commenter stated that a strong and the scope of this critical habitat even in advance of a final rule, EPA has applicable critical habitat designation designation. signaled potential changes to and subsequent modification or Comment 70: One commenter asked requirements under the Clean Water Act elimination of the non-Federal project is us to ensure that the Salem Nuclear based upon a critical habitat designation an essential requirement for Power Plant, Mercer Generating Station,

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and the Delaware City Refinery, which designate any critical habit areas in Generating Station, Units 2 and 3, NER processes 200,000 barrels of petroleum Rhode Island state waters. 2012–2252 at 42 (Jan. 30, 2013), NMFS per day, install cooling towers and at Our Response: We appreciate the characterized one spawning area for the latter refinery, remove intake input and concurrence from the Atlantic sturgeon in the Hudson River screens that kill millions of fish and Department of Environmental as being ‘‘freshwater year round with entrains millions more small fish, eggs, Management. bedrock, silt and clay substrates and and larvae that circulate through the water depths of 12–24 m,’’ and another Comments on the Carolina and South refinery’s cooling system pipes and get area as having ‘‘clay, silt, and sand Atlantic DPS Critical Habitat boiled to death. substrates and water depth of Designations (81 FR 36077, June 3, Our Response: This comment is approximately 21–27 meters deep.’’ 2016; 81 FR 41926, June 28, 2016) beyond the scope of this critical habitat Our Response: As we explained in our designation. Section 316(b) of the Clean Comments on Geographical Area final rule, Implementing Changes to the Water Act requires EPA to issue Occupied Regulations for Designating Critical regulations on the design and operation Comment 74: A few commenters Habitat (81 FR 7414; February 11, 2016), of cooling water intake structures, in broadly-defined PBFs are not order to minimize adverse impacts. asserted that our designation is inconsistent with section 3(5)(C) of the necessarily inappropriate. The level of Further information can be found on the specificity in our description of the EPA Web site at https://www.epa.gov/ ESA, which provides that ‘‘except in those circumstances determined by the PBFs is primarily determined by the cooling-water-intakes. state of the best scientific information Comment 71: A commenter Secretary, critical habitat shall not available for the species at issue. As representing the interests of two include the entire geographical area held by the court in Arizona Cattle industries provided numerous which can be occupied by the Growers v. Kempthorne, 534 F. Supp. 2d comments on the recently revised joint threatened or endangered species.’’ Service regulations for designating Our Response: The areas being 1013, 1025 (D. AZ 2008), so long as we critical habitat (81 FR 7414; February designated do not include the entire have used the best available information 11, 2016) and asserted that these critical geographical area which can be and endeavored to provide as much habitat designations for the Gulf of occupied, and include only a portion of notice as is practicable to the public as Maine, New York Bight, and the ranges of the two DPSs. These areas to the nature of the PBFs, specification Chesapeake Bay DPSs of Atlantic do not include rivers that do not of some quantitative aspects of the PBFs sturgeon were flawed as a result of support spawning but which may be may be deferred to the consultation relying upon the revised regulations. used for foraging, marine habitats, or process. The commenter did not point Our Response: There was a lengthy estuarine habitats below rkm 0 in each to any available information that we public comment period for the revised designated river. should have considered to provide joint Service regulations. The comments Comment 75: An industry trade group additional specificity in the definition and the Service’s responses to the believed we inappropriately delineated of the PBFs, or why the PBFs as defined comments were provided with the final the ‘‘geographical area occupied’’ by the by us are not actually essential. rule. It is not within the scope of these species as the entire ‘‘aquatic habitat Moreover, the commenter overlooked critical habitat designations for the (e.g., below the high tide line)’’ of important details in the PBFs that make Atlantic sturgeon DPSs to revisit the inland freshwater areas that are them readily discernible. For example, response to comments or recommend currently accessible to the Atlantic the commenter stated that hard bottom changes to the joint Service regulations. sturgeon. These commenters stated that substrate in low salinity waters, aquatic All critical habitat designations we inappropriately included not just habitat with a gradual downstream proposed after March 14, 2016, are areas where the species has actually salinity gradient of 0.5 to 30 ppt and soft required to follow the revised joint been located, but instead we also substrate downstream of spawning sites, Service regulations, and we have done included wider areas around the water of appropriate depth and absent so for the Gulf of Maine, New York species’ occurrences and areas that may physical barriers to passage, and water Bight, and Chesapeake Bay DPS critical be used only temporarily or periodically with the temperature, salinity, and habitat designations. by the species. They stated that ‘‘areas oxygen values that, combined, support Comment 72: The U.S. Coast Guard identified as occupied include vast spawning, survival, growth, provided comment assuring us that they areas where there is no evidence the development, and recruitment, are too will consult with us in accordance with species even occurs, much less broad. But our description of the PBFs section 7 of the ESA for establishing occupies.’’ is more detailed than that. Hard bottom new anchorage grounds on the Hudson Our Response: See response to is described as rock, cobble, gravel, River because establishing anchorage Comment 2. limestone, boulder, etc. This hard- grounds may impact Atlantic sturgeon, bottom substrate must be in low salinity Comments on the Physical or Biological waters specified as 0.0–0.5 ppt, and the its habitat, or its critical habitat. Features (PBFs) Our Response: We appreciate the U.S. substrate must be of a type that can Coast Guard’s commitment to ESA Comment 76: One commenter facilitate settlement of fertilized eggs, section 7 consultation for activities that asserted that the broad nature of the and refuge, growth and development of may affect Atlantic sturgeon and PBFs fails to provide notice to the early life stages. Transitional salinity Atlantic sturgeon critical habitat. regulated public whether the PBFs are zones with a gradual downstream Comment 73: A representative of the present in an area without asking NMFS gradient of 0.5–30 ppt, and sand or mud Rhode Island Department of for case-by-case determinations. The soft substrate between river mouths and Environmental Management agreed commenters further asserted that the spawning sites is designated for juvenile there are not specific areas within broadness of the PBFs renders them not foraging and physiological development Rhode Island state waters that meet the actually essential to the species and (this final rule clarifies the gradient is requirements for designation as critical provided the example that for the from 0.5 up to 30 ppt). Water must be habitat for Atlantic sturgeon, and Biological Opinion for Continued of an appropriate depth and lack concurred with the proposal not to Operations of the Indian Point barriers to passage. Appropriate depths

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and lack of barriers are those that allow of critical habitat for the Southern DPS and underlying environmental unimpeded movement of adults to and of green sturgeon (74 FR 52300; October parameters at a given project location from spawning sites, seasonal and 9, 2009). They also suggested our will be important in evaluating the physiologically-dependent movement of proposed designation is overly broad, impact, if any, of future projects on juveniles to appropriate salinity zones improperly used ‘‘ephemeral reference critical habitat. In this regard, we within the river estuary, and staging, points,’’ and unsupported by facts or believe a meaningful evaluation of the resting, or holding of subadults or science. The commenters suggested we natural baseline condition of project spawning condition adults. Appropriate identified and proposed to designate area is best done during the site-specific depths are explained as at least 1.2 m, sweeping areas of occupied habitat that ESA section 7 consultation and not in to facilitate all life stages of sturgeon undoubtedly capture many areas that do this final rule. including effective adult migration and not have, and likely never will have, Comment 79: The NCWQA and spawning behavior. Barriers that would physical or biological characteristics SCWQA suggested that we insert eliminate or degrade this feature were essential for the conservation of the information included in the preamble of described in the proposed rule as, locks, species. One commenter suggested it the GARFO proposed rule to designate dams, reservoirs, gear, and are clarified appeared we had merely designated critical habitat for the Gulf of Maine, in this final rule to include thermal entire rivers from the confluence of the New York Bight, and Chesapeake Bay plumes, sound, and turbidity. Essential Atlantic Ocean back to either some DPSs of Atlantic sturgeon (81 FR 35701; water quality is qualified as temperature major tributary or some large June 3, 2016) that makes it clear that the and DO, especially in the bottom meter impoundment or impassable boundary ‘‘specific oxygen concentration and of the water column, and illustrative upstream. Several commenters temperature values are provided as examples of how variations in these suggested that areas should not be examples and guidance’’ and that ‘‘areas parameters can adversely affect sturgeon designated as critical habitat because designated as critical habitat based on are provided. The essential PBFs are all environmental conditions in certain the 4 features are not expected’’ to have common attributes of aquatic habitat stretches of rivers are poor and would these oxygen concentrations and that are easy to understand and readily not support the PBFs. Similarly, other temperature values ‘‘at all times and measurable; the various parameters— commenters stated we had failed to within all parts of the area.’’ depth, temperature, DO, salinity, etc., limit the mapped areas in our proposed Our Response: We believe our are typically included in assessments of designation to areas where we believe regulatory text for the Carolina DPS and proposed projects’ impacts on the the PBFs occur. South Atlantic DPS makes it clear that environment. Proponents of future Our Response: See response to the oxygen concentration and projects within Atlantic sturgeon critical Comment 8. temperature values described are habitat will know without consulting us Comment 78: The North Carolina examples, and that the presence of PBFs whether their project has the capacity to Water Quality Association (NCWQA) within a river system may vary affect salinity, hard or soft substrate, and the South Carolina Water Quality temporally. Additionally, the preamble water depth, openness of river channels, Association (SCWQA) stated that we to the proposed rule for the Carolina temperature, and DO. Most, if not all, must include a natural condition DPS and South Atlantic DPS discussed project proponents will be able to provision to reflect natural instream the variable and ephemeral nature of determine whether the PBFs exist in temperature and DO levels that are these environmental features. However, their project area, and what their outside of the temperature and DO we have added additional text to the baseline conditions are, without first critical elements in the proposed rule. preamble of this rule to clarify that the consulting us. Thus, we believe the They charged that any regulatory identified values of the PBFs are not PBFs of Atlantic sturgeon critical habitat requirements must consider the natural required in all parts of designated areas, have been described with appropriate condition and not critical temperature/ at all times. specificity, based on the best scientific DO elements that are not naturally Comment 80: A few commenters information available. present. They also suggested that we noted that environmental conditions With respect to the example provided should have provided more context (i.e., levels of DO, salinity, and by the commenter, the commenter regarding whether the proposed PBFs temperature) as well as the location of mischaracterized our use of the for temperature and DO exist in an area spawning habitat may be affected by language cited from the Indian Point most of the time, some of the time, etc. climatic conditions, which could Biological Opinion. We provided the Our Response: As we discussed in the influence the actual location of suitable text in the biological opinion and cited proposed rule, values of temperature habitat from week to week or from year the source of the information as part of and DO that provide critical habitat to year. Additionally, a few commenters the review of available literature for functions to sturgeon will vary indicated critical habitat should include Atlantic sturgeon in the Hudson River. interdependently, and vary with suspected spawning grounds and The best available information that we changes in salinity. Because we are nurseries for Atlantic sturgeon. They used to describe the PBFs of Atlantic designating known spawning rivers, we also believe that because Atlantic, as sturgeon critical habitat is cited in the are confident the PBFs are present in well as shortnose, sturgeon are excellent Background of this rule and in the each unit at a temporal scale necessary colonizers of available habitat, we Impacts Analysis and Biological Source to support sturgeon in their should more expansively designate Document for the Gulf of Maine, New reproductive and developmental spawning habitat. A report cited by York Bight, and Chesapeake Bay DPSs. activities. We agree that the occurrence these commenters (Kynard, 2016) states Comment 77: An industry trade group of the PBFs will fluctuate across, and that, ‘‘Given the typical low asserted that we must revise our even within, rivers, and over time, and subpopulation abundance of the species proposed designation to explain how can be affected by natural and manmade throughout its range, a poor biological each specific critical habitat unit to be factors. But these fluctuations and the understanding of most subpopulations, designated contains the PBFs essential ephemeral nature of the PBFs make it a lack of identification of rivers with to the conservation of the species, impractical to describe them as static in subpopulations, and increasing threats suggesting that our approach should be condition and location. We agree that to successful spawning and rearing in the same as that taken in the designation consideration of the natural conditions rivers, recovery could likely depend on

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many rivers with habitat for all life believe, however, that inclusion of of spawning habitat within unit stages being colonized by non-natal additional rivers that have no current or boundaries. The physical characteristics adults.’’ On this basis, Kynard (2016) historical evidence of supporting of the fall line provide the conditions states that NMFS should include three spawning is warranted, based on the that promote successful sturgeon types of rivers in the critical habitat fidelity of sturgeon to their natal rivers spawning, e.g., well-oxygenated water designation: (1) All rivers with a for spawning and because many of the flowing over hard substrates. Given the subpopulation that has freshwater omitted rivers are largely located in the severely depressed populations of spawning and nursery habitats and coastal plains and do not provide the Atlantic sturgeon, and our conservation estuarine nursery (natal) habitat; (2) all range of habitat types known to be used objective of facilitating increases in rivers without a current subpopulation for spawning and juvenile development. these populations, we believe including but with a documented historical Therefore, we are not including all potential spawning areas, up to the subpopulation, and having freshwater additional rivers on the basis of possible fall line as applicable, is appropriate. spawning and nursery habitats, and future colonization. Finally, we determined that specifying estuarine nursery habitats that can be Comment 81: Several commenters the need for continuous flowing water colonized by non-natal adults; and (3) stated we should designate critical was more appropriate than attempting rivers with no evidence of current or habitat only in areas upriver to a point to specify water velocities. Water historical populations, but which have where flows, eddies, and spawning velocity is one specific aspect of flowing freshwater spawning and nursery substrate are available, and we should water. However, continuous flowing habitats, as well as estuarine nursery not designate migratory corridors water also influences temperature, habitats that can be colonized by non- because they are less critical. One oxygen concentrations, turbidity, etc., natal adults. Ultimately, the commenter remarked that there is no which are also important features to commenters requested we designate identified range of water velocity Atlantic sturgeon. Therefore, given the critical habitat as widely as possible, necessary for the conservation of the lack of data on particular velocities that and not limit it to just rivers with species, only the need for continuous may be needed by Atlantic sturgeon, spawning and rearing habitat, but for all flow. This commenter asserted that and the fact that flow regimes vary areas ‘‘that may serve as these habitats entire stretches of river up to the fall widely between spawning rivers in the with migration of the salt front, DO, and line are not needed to meet the southeast, we believe our focus on temperature conditions.’’ conservation objectives, and that continuous flowing water is features essential for conservation of the appropriate. Our Response: As noted in the species exist in adequate quantity well Comment 82: The North Carolina proposed rule, our conservation downstream of the fall line of some of Department of Transportation (NCDOT) objective is to ‘‘increase the abundance the rivers. stated that our method for determining of each DPS by facilitating increased Our Response: We identified the need areas of critical habitat was flawed survival of all life stages . . . by to increase the abundance of each DPS because we included areas as critical facilitating adult reproduction and by facilitating increased survival of all habitat if any of the PBFs were present, juvenile and subadult recruitment into life stages and facilitating adult but they believe all PBFs must be the adult population.’’ Based on the best reproduction and juvenile and subadult present in contiguous segments of rivers scientific information available, the recruitment into the adult population as for an area to adequately support the life biological needs and tolerances of the conservation objectives for critical history needs of the species and, thus, Atlantic sturgeon, and environmental habitat. To achieve that objective, we be critical to the conservation of the conditions in southeast rivers, we must not only protect upriver spawning species. They acknowledged there may believe we have identified suspected sites, but also the in-river habitats that be specific areas that contain the PBFs spawning grounds and nursery areas for allow adult Atlantic sturgeon to move essential to conservation of the species, Atlantic sturgeon; in other words, we do safely and efficiently to and from those but claim these areas are not specifically not have reason to suspect Atlantic spawning habitats. Additionally, for identified. sturgeon may be spawning and rearing larval and juvenile Atlantic sturgeon to Our Response: All PBFs do not need in other rivers. We agree that the survive to adulthood and become to be present in a stretch of river for that conditions and combinations of the spawners themselves, habitats stretch to be designated as critical PBFs will vary temporally, over short downstream from the spawning areas habitat. As noted elsewhere, we and long timescales. That variation will require protection so those life stages determined the identified PBFs are affect the sturgeon’s use of the within- can successfully develop. We disagree essential to the conservation of the river habitat, including spawning that we were over-inclusive by setting DPSs, they may require special locations, as mentioned by the the unit boundaries to include the fall management considerations or commenters. Our approach to the line (the boundary between an upland protection, and they are located on designation considered this variation region of continental bedrock and an specific areas within the geographical and has included the areas where we alluvial coastal plain) of the spawning area occupied by the DPSs. There is no anticipate the PBFs occur and will rivers, where applicable, and we realize requirement that all PBFs occur in a occur. Also, we determined that some we were somewhat unclear as to the single location or at the same time. areas outside the area occupied by the basis for upstream boundaries on every Indeed, because our goal was to support species are essential to their unit and how that relates to the fall line all life stages of Atlantic sturgeon, some conservation. We therefore designated on each river, so we are clarifying that of our PBFs are mutually exclusive. For unoccupied critical habitats in areas in this final rule. As we stated in the example, by definition, the PBF of hard where the spawning portion of the river proposed rule, given the need to bottom substrate in low salinity (0.0–0.5 is limited by dams. We believe we have maximize the potential for increasing ppt) water, can never occur included rivers in the first two spawning and population sizes, and the simultaneously with the PBF for categories Kynard (2016) states should fact that Atlantic sturgeon are known to transitional salinity zones, inclusive of be included in a designation, based on spawn between the salt front and the waters with a gradual downstream identification of PBFs essential to the fall line of large rivers, we endeavored gradient of 0.5–up to 30 ppt and soft species’ conservation. We do not to include the farthest upstream extent substrate (e.g., sand, mud) between the

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river mouths and spawning sites for day trial; 14 (43.8 percent) were dead by believed would be protective of juvenile foraging and physiological Day 4 and 20 (62.5 percent) of the sturgeon exposed to both non-stressful development. The available scientific animals were dead by Day 5. Of the 16 and stressful temperatures based on evidence on Atlantic sturgeon spawning YOY exposed to those concentrations in findings reported in Campbell and and spawning behaviors in the the completely sealed tanks, 15 (93.8 Goodman (2003). They estimated a DO designated rivers, and information on percent) died by the end of Day 1 and concentration of 4.3 mg/L should be habitat characteristics in the ivers, all were dead by Day 2. Thus, while the protective under stressful temperatures. indicates that the PBFs are present in treatments were 10-days, we believe the The EPA (2003) recognized that the LC50 each of the units. high mortality rates over the shorter DO concentrations reported in Campbell Comment 83: The NCWQA and time periods indicate how sensitive and Goodman (2003) were not SCWQA recommended that if we small Atlantic sturgeon are to DO. This instantaneous but occurred within the choose to maintain our instantaneous led to our decision to identify the more first 2 to 4 hours of the tests. However, minimum DO levels needed to protect conservative value for this endangered they concluded using their estimated Atlantic sturgeon at 4.3 mg/L, we species. Similarly, because these value of 4.3 mg/L as an instantaneous should revise the temperature trigger for mortality rates occurred at the 26 °C value would be more protective for the those instantaneous minimum levels temperature threshold, and we have species. Additionally, because the EPA from 26 °C to 29 °C. The commenters acknowledged that DO and water estimates produced thresholds that still indicated we justified our selection of temperature need to be led to some level of injury or death, we 26 °C based on the EPA’s 2003 Guidance interdependently assessed, we conclude believe more conservative values are and two studies cited therein, stating the PBF as written correctly identifies appropriate to promote conservation of ‘‘shortnose sturgeon are more tolerant of the environmental conditions necessary Atlantic sturgeon. higher temperatures than Atlantic to protect this critical life stage. Comment 85: The NCWQA and sturgeon and the ‘high temperature’ for Comment 84: The NCWQA and SCWQA recommended we change our Atlantic sturgeon is actually considered SCWQA recommended that if we PBF associated with the instantaneous 26 °C[.]’’ The commenters indicated that choose to maintain our instantaneous minimum DO levels needed to protect one of the studies we used to support minimum DO levels needed to protect Atlantic sturgeon in North and South our decision (Secor and Gunderson, Atlantic sturgeon at 4.3 mg/L, it should Carolina from 4.3 mg/L to a range of 1998) considered the exposure of YOY be characterized as an exposure level 4.0–4.3 mg/L because it matches the Atlantic sturgeon to DO concentrations over a short-term period of several water quality standards in those states. ranging between 2.8 and 3.3 mg/L over hours, rather than an instantaneous They claimed this recommended range a period of 10 days at 26 °C. The threshold. The commenter indicates the is appropriate because the North and commenters believe that because this EPA’s 2003 Guidance suggests DO levels South Carolina water quality standards ‘‘long-term exposure’’ occurred at DO of greater than 4.3 mg/L for a period of for DO are a daily average of 5.0 mg/L concentrations far below and less 2 hours at stressful temperatures was and instantaneous minimum of 4.0 mg/ optimal than those required by North found to be protective. L, and that the daily average and South Carolina regulations, our Our Response: First, it must be requirement of 5.0 mg/L is more benchmarks are overly conservative. understood that critical habitat PBFs are protective than the 30-day average of 5.0 The commenters believe additional essential to the conservation of a mg/L in the proposed rule. Because support for their contention that our 26 species, not just its survival, and a there is significantly less potential daily °C threshold may be too conservative metric that is ‘‘protective’’ in a broad, stress to the sturgeon from the daily can be found in the EPA’s 2003 water quality context may still lead to average DO criterion, the commenters Guidance, which explains that the injury and even mortality of individual stated that establishing a short-term difference in temperature sensitivities organisms, and thus may not be the best instantaneous range of 4.0–4.3 mg/L is between the Atlantic and shortnose metric to foster conservation. We agree appropriate and should be fully sturgeons ‘‘could be because the that exposure time is a critical protective. The commenters indicated shortnose sturgeon were from Savannah consideration. We clarify the this approach would be even more River progeny and were held at higher information provided in EPA (2003) was protective if we changed our temperatures than the Atlantic sturgeon, based primarily on Campbell and temperature threshold to 26 °C rather which came from Hudson River Goodman (2003), who evaluated, among than 29 °C. progeny’’ (EPA, 2003). The commenters other things, the DO concentrations Our Response: The values for water requested that if we choose to maintain causing mortality in 50 percent or more temperature and DO, as part of the water an instantaneous DO value (rather than of shortnose sturgeon (called ‘‘LC50’’) quality PBF, are based on the best a range of 4.0–4.3 mg/L), we should held under stressful (29 °C) and non- available scientific information. As establish a 29 °C threshold consistent stressful temperatures (22 to 26 °C). discussed in the previous response, we with EPA’s 2003 Guidance. Secor and Niklitschek (2001) report believe that the 4.3 mg/L value for DO Our Response: We agree with the shortnose sturgeon are more tolerant of is the best interpretation of the presently commenter that Secor and Gunderson higher temperatures than Atlantic available scientific information and best (1998) exposed YOY Atlantic sturgeon sturgeon. Campbell and Goodman supports the conservation of Atlantic to DO concentrations ranging between (2003) considered 29 °C a stressful sturgeon. DO requirements are 2.8 and 3.3 mg/L over a period of 10 temperature for shortnose sturgeon. dependent on the associated water days at 26 °C. In fact, the experiment Conversely, Secor and Gunderson temperature, the sturgeon’s life stage actually consisted of two treatments, (1998) report Atlantic sturgeon and physiological condition, and the one in a completely sealed tank and becoming stressed at a lower duration of exposure, and the values another with access to air at the surface temperature of 26 °C. Based on the included in the PBF are examples of of the tank. Of the 32 YOY exposed to information provided in Secor and appropriate levels and combinations. concentrations between 2.8 and 3.3 mg/ Gunderson (1998), we consider the We recognize that information on all of L over a period of 10 days at 26 °C in stressful temperature for Atlantic these combinations is limited, and the unsealed tanks, only four (12.5 sturgeon to be 26 °C. The EPA (2003) additional information is likely to refine percent) actually survived the entire 10- calculated DO concentrations they our understanding of the different

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combinations of required values. While that we have made non-specific function they serve. More information is we decline to change the DO values assertions that special management for provided in the response to comment presented in the PBF, we are not the essential PBFs may be required ‘‘as 20. necessarily saying that DO values in a result of global climate change.’’ Comment 90: Two municipalities other combinations with temperature, Our Response: See response to commented that our proposed rule salinity, water flow, exposure duration, Comment 14. suggests erroneously that offshore data and animal age and condition would be Comment 88: One commenter are unavailable to determine essential unacceptable, depending on the requested that we include ‘‘clear conservation needs. They noted we particular circumstances of a proposed guidance for considering the effects of a failed to mention information gathered project. Additionally, the rule does link changing climate on critical habitat from the annual offshore striped bass the 4.3 mg/L DO value to a temperature designation for species recovery in the tagging cruises that have tagged threshold of 26 °C rather than 29 °C. final rule.’’ The commenter requested numerous adult sturgeon coincident to Comment 86: Two commenters stated we consider ‘‘projected changes to the fishing grounds of large offshore we failed to consider in a complete and salinity, temperature and DO, including trawlers, gillnets, and longline fisheries. meaningful way, the role certain aspects changes in sea level rise’’ and further Our Response: We are aware of the of aquatic chemistry play on requested that we document the extent offshore striped bass tagging cruises. We determining whether a river has suitable that climate change was considered carefully examined the information spawning habitat. The commenters when assessing the need for the available from this study, which suggested we should have considered inclusion of currently unoccupied included parameters such as location of pH and levels of calcium (Ca) and habitat in the final rule. capture, size of fish, weight of fish, etc. Our Response: See Response to magnesium (Mg) ions. They suggested Unfortunately, that information was Comment 17. these chemical characteristics can insufficient to identify PBFs that are determine whether Atlantic sturgeon Comments on Decision Not To essential to the conservation of the will spawn in a particular reach of river, Designate Critical Habitat in Estuarine species. and thus, it is crucial that these features or Marine Environments Comment 91: One commenter stated are given special management that while the ‘‘Large Coastal Rivers that consideration in future section 7 Comment 89: One commenter agreed Lack Essential Features’’ section of the consultations and, if need be, protected with our decision not to designate any proposed rule states: ‘‘. . . short coastal accordingly. critical habitat in the marine ecosystem; Our Response: See response to however, other commenters disagreed. plains rivers . . . most likely do not Comment 9. Two commenters indicated we should contain suitable habitat for Atlantic designate estuarine habitat that not only sturgeon,’’ these systems may provide Comments on Special Management encompasses natal estuaries, but also foraging habitat for subadult and adult Considerations or Protection certain estuaries that are not natal for a Atlantic sturgeon. The commenter Comment 87: An industry trade group subpopulation, because coastally continued by stating that although believed we failed to provide any migrating juveniles use estuaries for relatively large numbers of Atlantic assessment of current management or foraging, including estuaries with and sturgeon have been acoustically tagged protections in place and whether those without spawning subpopulations. They and their movements recorded in recent are adequate for the conservation of the asserted we were waiting for ‘‘perfect’’ years, their numbers are highly depleted Atlantic sturgeon. The commenters information and being overly restrictive, relative to historical levels of claimed we must consider whether any and that the amount of scientific abundance, and acoustic receiver of the proposed critical habitat units are information currently available is coverage is relatively sparse. The presently under special management or enough to determine PBFs in these commenter stated the use of these protection for Atlantic sturgeon. The areas. They also indicated that all systems as foraging habitat by subadult commenters acknowledged we have estuaries have human activity that and adult fish should not be discounted, identified a number of initiatives that requires special management to preserve once populations are fully restored and could protect Atlantic sturgeon, but they the estuarine habitat for sturgeon population density is higher. believed we must actually assess these foraging (i.e., management to avoid Our Response: We agree that foraging initiatives to determine whether they impacts from dredging, boat strikes, habitat is extremely important. are sufficient and determine what benthic habitat destruction, sediment However, as described in the proposed further management actions may benefit contamination, cooling water intakes, rule, due to the paucity of data on from critical habitat designation. The etc.). specific habitat or resource utilization, commenters went on to state we should Our Response: We agree with the we could not identify any PBFs consider each feature and specific area commenters that estuaries and essential for the conservation of the proposed and assess current nearshore marine waters along the Carolina and South Atlantic DPSs that management measures in place to make Atlantic Coast are important habitat of support adult and subadult foraging in an actual determination as to whether Atlantic sturgeon; we specifically estuarine or marine environments (see special management may be needed in discussed them in the proposed rule. also the response to Comment 20). We the reasonably foreseeable future, and if However, as we described in the did include PBFs related to juvenile so, what that management would be, proposed rule, we lack sufficient data to foraging and developmental habitat in and how the critical habitat designation identify the specific features in the spawning rivers, downstream of would further that management. The marine/estuarine environment Atlantic spawning sites, but, as the commenters commenters concluded that our sturgeon are using. We agree that there noted, the non-designated short coastal discussion of special management is scientific information describing plain rivers do not support spawning considerations is limited to general environmental correlates with locations and therefore would not support discussion regarding how barriers, water of Atlantic sturgeon; however, we do downstream-migrating, developing withdrawals, and dredging can not believe that it is sufficiently juveniles. The limited availability of generally affect water flow, quality, and informative of the features being used Atlantic sturgeon tracking data from depth and/or alter hard substrate, and by sturgeon, or the conservation short coastal plain rivers was not a

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factor in our decision not to include considered information on the location available information on historical those areas in the designation. of sturgeon spawning activity from Atlantic sturgeon spawning or Comment 92: Several environmental scientific reports, as active spawning or occurrence, and current estimated organizations stated that we incorrectly spawning activity in an area would extent of spawning and estimated claimed that we could not designate indicate that the PBF(s) necessary for population status in each river. Thus, estuarine or marine areas as critical spawning are likely present. Even in the upstream unit boundaries are fact- habitat due to insufficient data and that places where information is available, specific to each river system. We agree the best available scientific information those data may represent a snapshot in that the presence of a barrier does not supports identification of PBFs in time and the exact location of a habitat necessarily correspond with the estuarine and marine environments that feature may change over time (e.g., historical species ranges. However, the are essential to Atlantic sturgeon water depth fluctuates seasonally, as barriers denoting the upstream limit of conservation. These commenters said well as annually, and even hard the designation are the same designators that a growing body of research has substrate may shift position). While the as the upstream limit of the occupied identified critical feeding and seasonal best available information was, at many areas and barriers that occur at a critical aggregation sites, and that the sites times, location specific, we worked habitat boundary need to provide an identified to date should be designated pursuant to our regulations and easily recognizable landmark for where as critical habitat. The commenters identified specific areas at the critical habitat begins or ends. Non- stated there is a scientific consensus appropriate scale for critical habitat (i.e., ephemeral reference points (e.g., dams, that Atlantic sturgeon use marine waters specific rivers), taking into bridges) can be used in a textual of particular depths as migration consideration the life history of the description of the boundaries of critical corridors; the commenters asserted that species, as described in the preamble of habitat, thus we believe it is appropriate available information supports the the proposed rule. to use currently impassable dams as the contention that all 5 DPSs use the same Comment 94: An industry trade group terminus for occupied critical habitat. narrow migration corridor and known indicated we made no attempt to Comment 96: An industry trade group aggregation sites. The commenters establish any connection between the indicated we also failed to map stated that water depth, available prey, threats to Atlantic sturgeon described in potential threats to the Atlantic sturgeon substrates, temperature, salinity and the listing rule and critical habitat. They (e.g., manmade structures, dredging seascapes are factors correlated with, suggested we have not evaluated or areas). and that influence, Atlantic sturgeon explained how designation of critical Our Response: See response to use of specific estuarine and marine habitat will benefit the species, or help Comment 18. habitats as feeding or seasonal (winter, address injury/death resulting from Comments on Designation of summer) aggregations, and migratory inshore trawling or overfishing. Unoccupied Critical Habitat, Generally corridors, and that these features may Additionally, they indicated we have require special management not explained how the designation of Comment 97: Several commenters, considerations or protection. The ‘‘these vast areas would provide new or including South Carolina Department of commenters stated that our regulations, additional minimization of habitat Transportation (SCDOT) and South Implementing Changes to the alteration or destruction.’’ Carolina Department of Natural Regulations for Designating Critical Our Response: See response to Resources (SCDNR), asserted that Habitat (81 FR 7413, 7414; February 11, Comment 64. unoccupied critical habitat should not 2016), support the use of generally- Comment 95: One commenter asked be designated at this time. Some defined PBFs or an ecosystem approach. us to explain more clearly in the final questioned how we could consider Finally, the commenters discussed our rule, why we stopped the upstream these areas critical if animals are not previous critical habitat designations for extent of some critical habitat units at even using them currently. Others green and Gulf sturgeon as valid models locks or dams. The commenter suggested it was premature to designate for designating estuarine and marine acknowledged that in some cases, these areas because passage of animals areas as critical habitat for Atlantic manmade barriers occur at a natural into unoccupied habitats was uncertain sturgeon. barrier (impassable falls), and therefore or unproven in some areas. Still others Our Response: See response to they would not expect the historical suggested we wait to designate these Comment 20. species ranges to extend above the areas as critical habitat until data show location of those barriers. However, the Atlantic sturgeon were successfully Comments on Data and Approaches commenter continued by stating the being passed up to and were using these Used in the Proposed Designation, presence of a barrier, in and of itself, areas. Generally should not constitute the upstream Our Response: ESA section 3(5)(A)(ii) Comment 93: NCDOT suggested areas extent of critical habitat. The defines critical habitat to include of rivers were determined to be critical commenter argued that dams could be specific areas outside the geographical habitat based on ‘‘knowledge’’ instead of removed, which would open up those area occupied if the areas are documented data. habitats. The commenter requested we determined to be essential to the Our Response: We considered the best reconsider these reaches as essential, conservation of the species. As available scientific information, but currently unoccupied habitat. described in the proposed rule, we including the 2007 Atlantic sturgeon Our Response: Our approach to determined that there is insufficient status review (ASSRT, 2007), the ESA establishing the upper boundaries of the spawning and developmental habitat in listing rule (77 FR 5914; February 6, units was in the first instance to identify occupied stretches of three river 2012), scientific research reports, and evaluate the upstream extent of systems: The Cape Fear, Santee-Cooper, information and data gathered during available essential spawning habitat and Savannah, and on this basis the peer-review process, and a database features. We evaluated available determined these areas are essential to developed by the U.S. Geological information on the nature and the species’ conservation. However, Survey that mapped environmental distribution of likely spawning habitat based on concerns raised about the parameters within East Coast rivers to up to the first impassable barrier, impacts and uncertainties associated identify sturgeon habitat. We also natural or manmade. We also evaluated with these unoccupied units, and

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questions the commenters raise about times, based on habitat that may be presumptuous and impertinent and the nature of the conservation value critical at some future point in time. advocates that these designations be these units provide to sturgeon, we Our Response: We agree that site- deferred until further genetic analyses determined that conducting a specific information describing occur to verify the DPS classification of discretionary exclusion analysis on spawning location in the Southeast is Atlantic sturgeon . . .’’ The SCDNR is these units was warranted. As a result relatively rare. We could not compare essentially commenting on the of that analysis, we have chosen to our information to that referenced by determination of DPS identities and exercise our discretion under section the commenter as they did not provide boundaries in the 2012 final rule listing 4(b)(2) of the ESA and exclude their search results. We are designating the Carolina DPS. A critical habitat unoccupied units of critical habitat, critical habitat by describing PBFs designation is not the vehicle to revisit including the unoccupied Santee- essential to the conservation of the a species listing determination, and so Cooper unit. We determined the benefits species. The areas we are including in long as a species has been listed, we of exclusion (that is, avoiding some or the final rule have one or more of the have a statutory duty to designate all of the impacts that would result from PBFs present that are essential to the critical habitat for the species. designation) outweigh the benefits of conservation of the species and which Moreover, we believe the DPS listing designation. may require special management determinations continue to represent Comment 98: North Carolina Wildlife considerations or protection. the best scientific information available Resources Commission (NCWRC) Additionally, our regulations at 50 CFR on the identity and boundaries of the suggested that until we clarify how we 424.02 support the designation of areas DPSs. will evaluate projects in the unoccupied that contain PBFs that may be The commenter seems to believe that critical habitat, we should not designate ephemeral or dynamic. We believe the because our determinations differ from critical habitat in those areas. SCDNR proposed rule clearly outlines our step- SCDNR’s on certain aspects of the insisted that we remove all unoccupied wise approach for how we identified designation, for example the use of habitat areas from consideration. each PBF and the rivers in which they shortnose sturgeon as a proxy for However, they requested that if we still are located. Regarding moratoria or Atlantic sturgeon or how to interpret the intended to designate unoccupied construction restrictions, we reiterate lack of data regarding Atlantic sturgeon habitat areas, we should clarify how that the critical habitat designation does presence in certain stretches of a river, unoccupied versus occupied critical not create any moratoria, refuges, or our rule did not use the best scientific habitat designations will be handled in closed areas. information available. Our regards to section 7 consultations for Comment 100: One commenter determinations were based on the 2007 projects. suggested we had not used the best Atlantic sturgeon status review (ASSRT, Our Response: As stated previously, scientific information available, and 2007), the ESA listing rules (77 FR 5914; we have chosen to exercise our they believed that the positions taken by February 6, 2012), scientific research discretion under section 4(b)(2) of the SCDNR in their public comments reports, information and data gathered ESA and exclude the unoccupied units support their conclusion. Specifically, during the peer-review process, a of critical habitat. Therefore, section 7 the commenter stated: ‘‘[t]he proposed database developed by the U.S. consultations will not be required based rule was apparently developed with Geological Survey for mapping on impacts solely to these unoccupied little or no input from [SCDNR] and the environmental parameters within East areas. Section 7 consultation will still be scientific data it has collected. SCDNR Coast rivers to identify sturgeon habitat, required to assess potential impacts to finds the critical habitat designations to as well as information on the location of shortnose sturgeon and its habitats in be presumptuous and impertinent. In sturgeon spawning activity from the area proposed as the unoccupied fact, SCDNR insists that all currently scientific reports. We also reviewed Santee-Cooper unit, and consultation labeled unoccupied habitat be reports from a NMFS-funded multi-year, will be required if effects of actions in removed.’’ multi-state grant on movement and Our Response: We disagree that we the areas previously proposed as migration of Atlantic sturgeon that have not used the best scientific unoccupied have effects to sturgeon or included information collected by the information available in this their habitats downstream, in occupied SCDNR. Finally, the SCDNR provided a designation. We believe the commenter areas. peer-reviewer to evaluate the biological mischaracterized SCDNR’s statements. information that went into the proposed Comments on Designating Specific River The SCDNR suggested critical habitat rule. The reviewer provided critiques Units or River Areas designations were ‘‘presumptuous’’ and which were incorporated into the ‘‘impertinent’’ until further genetic Carolina Unit Rivers proposed rule. Thus, while the SCDNR analyses verify the DPS classification of may disagree with our approach in Comment 99: NCDOT indicated they Atlantic sturgeon. SCDNR commented certain cases (e.g., critical habitat should do not believe that ‘‘sparse spawning that ‘‘the Carolina DPS is based upon a not be designated without confirmed data justifies an extensive proposed area limited sample of individuals with no sturgeon presence), we disagree with the of critical habitat.’’ They indicated that representation from the Great Pee Dee, assertion that we did not use the best literature searches they conducted Santee and Cooper Rivers in South scientific information available when found that spawning in specific areas in Carolina. The samples used to developing the rule. the Southeast is rare. The commenter genetically characterize the Carolina Comment 101: Multiple commenters also stated that the proposed rule says, DPS were obtained from Albemarle said they believe the inclusion of ‘‘[t]here are large areas of most rivers Sound, an area where sturgeon from extensive river reaches, including where data is still lacking’’ and multiple river basins are known to ‘‘unoccupied’’ areas and reservoirs, for ‘‘substrate types can change from year to occur. The limited data input used to the Carolina DPS of Atlantic sturgeon year.’’ Further, the commenter stated in define the boundaries of the Carolina would result in a poor allocation of relation to extending ‘‘historical DPS causes concern and warrants conservation resources. They suggested habitat’’ into the ‘‘critical area,’’ they further genetic sampling to truly define we focus on estuarine environments, should not be required to comply with the Carolina DPS. SCDNR finds the spawning aggregations, and fisheries moratoria and limited construction critical habitat designations bycatch because it would result in

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greater benefits for the conservation of available information in the overall sturgeon YOY in the Neuse River, North the species. analysis because data was only as recent Carolina. They suggested the size of the Our Response: The ESA requires that as 2006, and proceeding with critical juveniles collected to date prove we designate critical habitat for listed habitat designations in unconfirmed nothing in terms of spawning origin as species. As described in the proposed areas without the benefit of updated and those fish could, and likely did, migrate rule, we know Atlantic sturgeon use better data is inappropriate. They note from other rivers where spawning adult estuaries for foraging, growth, and that North Carolina has had a gillnet sturgeon have been observed and movement. We also know subadults and Incidental Take Permit (ITP) for Atlantic captured (e.g., Roanoke River, North non-spawning adults use estuaries sturgeon since around 2012-2013. The Carolina). Further, the commenters seasonally, likely for foraging. However, commenters stated the Neuse River in stated we provided no direct evidence the lack of data on specific habitat or North Carolina, described as Area C in that the Neuse River was used by the resource use by Atlantic sturgeon in the the ITP, is allowed very few Atlantic Carolina DPS of Atlantic sturgeon when estuaries meant we could not identify sturgeon interactions prior to closure of we listed the DPS in 2012, and they any specific PBFs essential for the the gillnet fishery because of how rare suggested there has been no evidence of conservation of the species in these they are in this river system. The Atlantic sturgeon in freshwater portions areas. Also, we believe we are protecting commenters state additional of the river for decades. the habitat of spawning aggregations information indicated (1) sturgeon Our Response: Following receipt of with these designations. Because abundance, particularly for the Carolina this comment we had extensive contact Atlantic sturgeon spawn far upstream DPS, is far greater than originally with the USFWS staff, as well as with on hard bottom substrates in low believed in areas that have actual, state natural resource managers. They salinity waters (PBF #1), designating documented spawning aggregations; (2) suggested there was additional evidence critical habitat protects these habitats. discard mortality of juveniles taken in of YOY occurring in the Neuse River. Impacts from fisheries bycatch are direct traditional fishing gear is very low; and Specimens available from North impacts on the species, not habitat- (3) estuarine interactions with adult Carolina State University indicated related effects, and are beyond the scope sturgeon are exceedingly rare as they are three YOY (less than 350 mm) were of critical habitat designation. not retained in traditional gillnet fishing captured in the Neuse River in 1974 (J. As stated previously, we have chosen gear. The commenters concluded that Hightower, NCSU, to A. Herndon, to exercise our discretion under section extensive data associated with the ITP NMFS, pers. comm. March 2017). An 4(b)(2) of the ESA and exclude were not mentioned in the proposed additional record of a YOY captured in unoccupied units of critical habitat, rule but confirmed there is low Atlantic the Neuse River in 1974, was also including the reservoirs of Lake sturgeon abundance in the Neuse River. provided by the North Carolina Museum Moultrie and Lake Marion. Additionally, the commenters of Natural Sciences (G. Hogue, NCMNS, Comment 102: One commenter stated concluded that changes in fishing to A. Herndon, NMFS, pers. comm. they supported our designation of behavior and seasonality have March 2017). Also, Bain (1997) reports occupied and unoccupied critical dramatically reduced the potential for that ‘‘early juveniles’’ (20–440 mm FL) habitat. However, they requested we bycatch in North Carolina, but this consider regional datasets and literature information is also not considered in the remain in their natal rivers until they sources not cited in the proposed rule proposed rule. become ‘‘intermediate juveniles’’ (450– that they believe support the inclusion Our Response: When designating 630 mm FL) and begin gradually of the Ashepoo River, South Carolina, critical habitat we are to identify PBFs emigrating from the river during periods up to the confluence of Doctors Creek that are essential to conservation of the of rapid growth. Hoff (1980) reports (Route 64 Bridge). species that may require special sturgeon studies in the Neuse and Our Response: We appreciate the management considerations or Pamlico Rivers and Pamlico Sound commenter bringing these datasets to protections, and then identify specific captured low numbers of small (400– our attention. We considered areas in which those PBFs are located. 600 mm TL) sturgeon. The North designation of the Ashepoo River, South It is unclear how the information the Carolina Division of Marine Fisheries Carolina, as critical habitat. As stated in commenter suggests we overlooked (e.g., (NCDMF) also provided information the proposed rule, our review of the best data on sturgeon abundance, fishing collected via observers and during their scientific information available for the behavior, discard mortality, incidental Independent Gill Net Survey. From Ashepoo (Post et al., 2014) determined takes) is in any way informative 2001–2012, those sources reported 13 it is a short, coastal plain river that most regarding our PBFs or the areas we are Atlantic sturgeon captured in the Neuse likely does not contain the PBFs designating as critical habitat. As we that were less than 440 mm FL size suitable to support spawning and have noted, critical habitat designations range (M. Loeffler, NCDMF, to A. juvenile recruitment of Atlantic in occupied areas are based on the Herndon, NMFS, pers. comm. March sturgeon. Although the commenter did presence of PBFs that are essential to a 2017). Based on the information in Bain not identify which element we failed to species’ conservation, and which may (1997), we believe these animals are fully consider, we evaluated the require special management unlikely to have strayed into the Neuse regional datasets and literature sources considerations or protections. Specific River from other river systems, leading suggested by the commenter. Those data areas containing these PBFs are then us to conclude they were likely born sources may show species occurrence in identified, and the impacts of including there. Additionally, the final listing rule the Ashepoo, but not necessarily the specific areas in the designation are (77 FR 5914; February 6, 2012) indicates sturgeon spawning. We do not disagree considered. Whether sturgeon the Neuse River was used by the that Atlantic sturgeon could use the abundance or interactions with fisheries Carolina DPS at the time of listing and Ashepoo River; rather we do not believe have changed over time would not affect that spawning may be occurring in the it contains the necessary PBFs that how we made our critical habitat river. Moreover, ‘‘occupied at the time support our conservation objective for designations. of listing’’ in the statute refers to the designating critical habitat. Comment 104: Two municipalities geographical range, which we have Comment 103: Two municipalities stated we provided no evidence of defined to include all marine and asserted we failed to consider the best spawning or the presence of Atlantic freshwaters available to be used by

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Atlantic sturgeon, for any life function. that it is far from the salt wedge around the commenters regarding water quality Finally, regardless of whether animals New Bern and any measureable salinity is not specific to DO or temperature; it have been documented in the freshwater for many river miles under normal discusses nitrogen and phosphorus. The portions of the river, our critical habitat conditions. On this point, they information provided gives no determinations are based on areas where concluded that any supposition about indication of how these nutrients may PBF(s) essential to conservation of the the availability of suitable substrate be affecting DO or temperature in the species occur; it is not specifically tied with no knowledge of actual spawning river, or how these nutrients prevent the to animal presence. Therefore, we location is erroneous. The commenters PBFs from occurring or becoming believe including the Neuse River in the stated that flow regimes, critical for established in the future. Similarly, the designation of critical habitat is spawning success, are significantly commenters expressed concerns about appropriate. manipulated in the Neuse River. They water flows on the Neuse River, but did Comment 105: Two municipalities acknowledged that while flow regimes not provide any information regarding objected to the designation of proposed of Milburnie Dam have been increased how past and future flow manipulations critical habitat upstream of rkm 75 on on occasion to simulate natural of the Neuse River would affect the the Neuse River, North Carolina. The conditions on the Neuse River, these PBFs. With respect to our approach to commenters stated ‘‘the most westward flow regimes are not permanently determining that the PBFs occur in the location of a sturgeon [on the Neuse established and could change. They Neuse River, we acknowledged in the River, North Carolina] was at rkm 75’’ suggested unnatural, manipulated flows proposed rule that there are large areas and, in their opinion, Atlantic sturgeon are unlikely to change in a measureable of most rivers where data are still do not use areas upstream of rkm 75 and way in the future, and thus, establishing lacking. The available data also may critical habitat designation would the Neuse River as critical habitat for represent a snapshot in time, and the impose an unnecessary administrative Atlantic sturgeon is not supported by exact location of a habitat feature may burden on municipalities at or above the data. The commenters also change over time (e.g., water depth rkm 75. suggested the proposed rule does not fluctuates seasonally and annually, and Our Response: We considered the identify how we determined the water even hard substrate may shift position). information presented by the of appropriate depth and absent As we described, although habitat commenters, and we believe our physical barriers to passage between the features may vary even at the same upstream boundary is appropriate. We mouth and spawning sites and water location, if any of the available data have identified critical habitat based on quality conditions that support regarding a particular feature fell within areas where PBF(s) essential to spawning and recruitment for larval, the suitable range (e.g., salinity of 0–0.5 conservation of the species are located, juvenile and subadult growth PBFs ppt or hard substrate [gravel, cobble, not necessarily where individual occur in the Neuse. Finally, they stated etc.]), we considered that the essential animals have been documented. that to spawn in the Neuse River, the PBF is present in the area. When data Moreover, our data include an observed Atlantic sturgeon must pass through the were not available for certain rivers or Atlantic sturgeon around rkm 80 on the heavily impaired waters of the lower portions of occupied rivers, we used our Neuse River and likely suitable Neuse River and the Neuse Estuary. general knowledge of Atlantic sturgeon spawning substrate at the base of the They also suggested that the newly spawning and applied river-specific Milburnie Dam. Additionally, the hatched sturgeon fry must pass through information to determine the location of commenter provided no information the same waters on their journey to PBFs essential to spawning. For these suggesting the PBFs are absent above reach estuarine waters immediately after reasons, we believe designation of the rkm 75. For these reasons, we believe being hatched. They believed both the Neuse River as critical habitat is our upstream boundary for the Neuse appropriate and supported by the River is correct. Neuse and Pamlico portions of the estuary have been subject to seasonal available data. Comment 106: Two municipalities Comment 107: NCDOT said there are episodes of anoxia that significantly questioned our decision to consider the no confirmed data to support affect the quality of Atlantic sturgeon Neuse River, North Carolina, as designating the Cape Fear River, North nursery habitat. spawning habitat for Atlantic sturgeon. Carolina, above Lock and Dam # l, if They suggested that substantial water Our Response: We disagree. As noted there is sufficient spawning habitat quality concerns call into question the in the proposed rule and explained in below this point. If the habitat is not notion that the Neuse River could our response to Comment 104, we accessible at the time of listing it is not support the spawning of Atlantic believe there is evidence that Atlantic critical to the survival of the species. sturgeon. They cited our statement that sturgeon spawning has occurred in the Our Response: The proposed rule ‘‘hard bottom in fresh water on Neuse River. The commenter supported describes the information we used to spawning grounds and sufficient DO are our determination that the PBF of designate occupied areas on the Cape critical needs for spawning success.’’ substrate to support spawning does exist Fear River Lock and Dam #1 includes a The commenters stated that without any in the Neuse at the Milburnie Dam. The newly constructed fish passage feature, evidence of spawning activity in the commenters’ confirmation that hard and there have been reports of Atlantic Neuse, it is unknown whether the hard bottom substrate in low salinity waters sturgeon above the lock and dam. We bottom criteria are met. They concluded far from the salt wedge exists in the therefore included the area between the required physical spawning Neuse River validates our determination Lock and Dam #1 and Lock and Dam #2 conditions have not been shown to exist that PBF # 2 (transitional salinity zones as occupied habitat in our proposed in the Neuse River because no spawning inclusive of waters with a gradual designation (Carolina Unit 4). We had locations have been identified and the downstream gradient of 0.5-up to 30 ppt proposed to designate the area between water quality conditions are unlikely to and soft substrate) is present. The Lock and Dam #2 and Lock and Dam #3 favor the survival of larvae and early commenter also expressed concern over as unoccupied critical habitat because juveniles. However, they acknowledged the water quality of the Neuse River and we believed it may provide additional that the upper reaches of the Neuse estuary, calling into question its spawning habitat that was essential to River at the Milburnie Dam do have suitability as spawning habitat. the conservation of the species. areas of suitable substrate, but stated However, the information provided by However, further conversations with

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USFWS and state resource managers river bottom and currents most suitable sturgeon are passing above Lock and made us uncertain about the for Atlantic sturgeon spawning would Dam #1 on the Cape Fear River, even as conservation value for this specific be found above Lock and Dam #3. They recently as September 2016, and that stretch of the Cape Fear River between also provided information from would have been either through the Lock and Dam #2 and Lock and Dam #3. historical fishing records that report lock, or over the rock ramp. Therefore, while we continue to believe Atlantic sturgeon had been captured far Additionally, modifications to the rock that this habitat is important to Atlantic upstream from Lock and Dam #3. We ramp at Lock and Dam #1 will be sturgeon, we do not believe the area believe the most likely explanation for completed by 2019, which is anticipated between Lock and Dam #2 and Lock and why Atlantic sturgeon were captured to increase the efficiency of sturgeon Dam #3 is essential to the conservation that far upstream historically is because passage above the Lock and Dam #1. of the species based on our current they were attempting to spawn. The Thus, we believe our statement about understanding of what habitat is likely indication that suitable spawning successful passage is correct. there. Additional information would be habitat exists above Lock and Dam #3, Comment 110: Two utility companies necessary resolve the uncertainty and the historical evidence suggesting suggested the best scientific data surrounding what portion, if any, of the Atlantic sturgeon moved that far available do not support designation of Cape Fear River above Lock and Dam #2 upstream, suggests to us that spawning the area in the vicinity of the Blewett is essential for the conservation of the likely occurred there in the past and Falls Dam tailrace on the Pee Dee River species. Therefore, we are not may again in the future, once the because this area has previously been designating unoccupied critical habitat animals have access to the area. This disturbed as a result of necessary on the Cape Fear River at this time. information suggests to us that this hydropower operations and Comment 108: The USFWS stretch of the Cape Fear River may be of maintenance. As a result, this area does recommended changing the upstream high conservation value. However, not contain the prescribed PBFs for the terminus of Carolina Unoccupied Unit moving the upstream boundary to key habitat-based conservation 1—Cape Fear River, North Carolina, by Buckhorn Dam would be an increase of objectives for spawning and juvenile extending the boundary to Duke 115 rkms. We believe this is a development habitat. These commenters Energy’s Buckhorn Dam, North significant change that the public was stated the biological opinion issued for Carolina, rather than ending at Huske not aware of and on which it did not FERC’s issuance of the Yadkin-Pee Dee Lock and Dam (Lock and Dam #3) as have an opportunity to provide (YPD) hydropower license requires a proposed. The commenter referenced comment. Therefore, we are not making spawning and incubation habitat the recent notice by the National Fish the change recommended by the characterization assessment for an 88- and Wildlife Foundation (NFWF) commenter at this time. mile-long reach of the Pee Dee River, (reference NFWF Agreement #5406) to Comment 109: One commenter downstream from Blewett Falls Dam. Bladen County, North Carolina. The questioned our conclusion regarding The assessment seeks to determine the notice indicates Bladen County has been Atlantic sturgeon spawning migration in amount of suitable sturgeon spawning awarded funds through the NFWF-Duke the Cape Fear River, North Carolina, and incubation habitat created as a Energy Settlement for the Lock and specifically our statement that fish result of the spring minimum flow Dams #2 and #3 Project. The project passage present at the dam is successful requirements and the actual flows would conduct an extensive alternative or that fish pass through the lock at provided by YPD under the new license. analysis and advanced hydraulic Lock and Dam #1. The commenter The commenters believe the assessment modeling, design a weir wall, support indicated that unless the policy has should provide scientific data that can continued tagging/telemetry work by the changed very recently, locking for fish be used to pinpoint areas for North Carolina Division of Marine passage is not conducted at Lock and designation as critical habitat. Until the Fisheries, conduct anadromous fish egg Dam #1 and tracking of sonic-tagged initial 10-year phase of this assessment sampling at all three Locks and Dams, Atlantic sturgeon has not shown any is completed, the commenters requested and support a USACE Rivers and upstream movement past Lock and Dam we refrain from designating the area Harbors Act section 408 review and #1. The commenter continued, stating downstream of Blewett Falls Dam coordination. Based on this, the upstream passage at the rock arch ramp within the YPD project area boundary as commenter believed upstream passage at Lock and Dam #1 has been good for critical habitat. is reasonably foreseeable. The American shad but poor for striped bass Our Response: The commenters commenter believed this reach of the and while neither species is a perfect suggest we omit areas within the YPD Cape Fear River would, when re- proxy for Atlantic sturgeon, the results project boundary from critical habitat, opened, provide suitable spawning and are mixed regarding effectiveness of this but it is not clear what the YPD project migratory habitats needed to facilitate rock arch ramp. The commenter added boundary is. We believe that the scale sturgeon reproduction and recruitment. that intensive gillnet sampling did not and boundaries of the specific areas that Thus, they believed it is appropriate to detect any Atlantic sturgeon above Lock we are including in the critical habitat extend this unoccupied unit upstream and Dam #1 in 1996–1997 (Moser et al., designation are appropriate. For the Pee to the next currently impassable barrier. 1998). The commenter stated the most Dee River unit, aerial imagery suggests Our Response: We appreciate the likely conclusion is that the locks and spawning habitat does exist commenter bringing this development dams have long hindered or prevented immediately downstream from Blewett to our attention. We were not aware that upstream passage of Atlantic sturgeon in Falls Dam. Further, we are required to passage above Lock and Dam #3 may the Cape Fear River (and may have define each critical habitat unit using occur in the reasonably foreseeable increased the importance of the easily recognized reference points. We future. Following receipt of this unobstructed Northeast Cape Fear agree that the spawning and incubation comment we had extensive contact with River). habitat characterization assessment is USFWS staff, as well as with state Our Response: We agree that the locks likely to provide additional scientific natural resource managers. They and dams typically provide limited data that will be useful in determining reiterated input we received during the opportunities for passage of Atlantic more precisely the location, timing, etc., development of the rule from a state sturgeon. However, the best scientific of the PBFs, though the studies will sturgeon expert who stated the type of information available indicates that only be another snapshot in time and

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will not account for temporal variability The commenters also were not specific We are not projecting a decrease in in location of PBFs. Further, when about their statement that the areas are impacts in this unit associated with the designating critical habitat, our not ideal habitat for Atlantic sturgeon, decrease in length, given the actions regulations state that we shall designate, other than to say the areas do not predicted to occur here and require at a scale that we determine to be provide spawning habitat. However, the consultation are not location-specific appropriate, the areas that contain the commenters did not state that all of the and could still occur within the PBFs essential for the conservation of other PBFs are absent from these areas. modified unit boundaries. the species. The areas do not need to be The commenters suggested that Comment 113: Two utility companies limited to only the precise locations dredging would make the areas less than suggested we had not used the best where the PBFs have been specifically ideal habitat for sturgeon. But based on available information when we determined to exist. We believe that we our experience with the effects of determined there is a spawning run or have appropriately used the best dredging on aquatic habitat, we do not spawning patterns of movement for the scientific information available at this believe dredging would permanently Carolina DPS of Atlantic sturgeon in the time and have selected an appropriate remove the PBFs such that the areas Santee River below Wilson Dam (or scale for these designations. The ESA would not provide conservation value to anywhere in the Santee) in South does not allow us to identify areas sturgeon in the periods between Carolina. They said there is no evidence containing the PBFs and then decline to dredging events. We believe that we of spawning in the Santee River, and designate them until better data become have appropriately used the best very little evidence of YOY Atlantic available. In identifying and designating scientific information available at this sturgeon using the river, and those the areas containing the PBFs that are time and have selected an appropriate specimens that have been captured were essential to the conservation of the scale for these designations. thought to be pushed in from Winyah Atlantic sturgeon, we are meeting our Comment 112: SCDNR said that while Bay, South Carolina, via the Intracoastal statutory and regulatory requirements. telemetry data were not available above Waterway. The commenters For these reasons, we have included as Pine Tree Landing on the Black River, acknowledged the Santee River critical habitat on the Pee Dee River the South Carolina (Carolina Unit 6), they downstream of Wilson Dam may be area up to the Blewett Falls Dam. believed the river is extremely braided used for feeding and refuge, but they Comment 111: Two utility companies in this area and likely provides limited reported Post et al. (2014) do not also suggested that the areas around the ideal habitat for Atlantic sturgeon. They support the conclusion that the Santee intakes for two ‘‘steam-electric plants’’ recommended the upstream limit of River supports a spawning run or a located on the Neuse River, North designated critical habitat in the Black pattern of movement for Atlantic Carolina, within ‘‘Carolina Unit 3 Neuse River should stop at June Burn Road, sturgeon, and thus does not support the Unit’’ and one ‘‘steam-electric plant’’ South Carolina. inclusion of the Santee River as critical located on the Cape Fear River, North Our Response: The comment was habitat. SCDNR questioned our Carolina, within ‘‘Carolina Unit 4 (Cape unclear as to whether telemetry data assumption that an Atlantic sturgeon Fear Unit),’’ are previously disturbed were not available because no receivers captured at the St. Stephen Fish Lift on areas that require dredging in order to capable of detecting acoustically tagged the Santee River, South Carolina maintain the operation of the steam- sturgeon had been deployed above Pine (Carolina Unit 7), had presumably been electric plants, and these areas do not Tree Landing or if receivers were there, making a spawning run. They indicated include ‘‘ideal habitat’’ for the Carolina but they just had not ever detected a the direction of travel of this individual DPS of Atlantic sturgeon; in another sturgeon. A review of Post et al. (2014) animal is unknown. SCDNR said that part of their letter the commenters confirms the former. Regardless, we the exit channel of the fish lift is stated that the intake areas do not reviewed the geospatial information monitored via three video cameras, two provide spawning habitat. The available around June Burn Road, South of which are underwater and one that commenters asserted that the areas Carolina, and agree that the main stem captures images through a viewing around the intakes at the steam-electric of the Black River becomes increasingly window of the exit channel in the lift. plants on the Neuse and Cape Fear difficult to identify in this area. We They concluded that a review of the Rivers should be excluded from critical were able to consistently identify the video footage could not determine habitat in order to minimize the main stem of the river up to whether the sturgeon entered the lift potential burden they expect will result approximately Interstate 95, upstream of downstream of the dam or if the from additional and unnecessary which the main stem is no longer sturgeon entered the fish lift via the exit regulatory reviews. discernable. As a result we have channel in Lake Moultrie. Our Response: We disagree that modified the upstream boundary of the Our Response: We disagree. Sturgeon foregoing designation would alleviate Black River (Carolina Unit 6) to be the movement upstream in the Santee River additional cost, complexity, and Interstate 95 Bridge, approximately has clearly been restricted due to the administrative burden of carrying out eight miles southwest of Turbeville, Santee-Cooper Navigation and Hydro- activities at these plants. As noted South Carolina. This results in a Electric Project, and the operational previously, we anticipate that decrease of 50 rkm for this unit. Aerial impacts of the St. Stephen hydropower designation of critical habitat will imagery does not indicate that any hard dam have restricted sturgeon access to impose only minimal administrative bottom substrate is being excluded from or ability to use the Santee River below burdens and costs that will be added to the unit by changing this upstream Wilson Dam. But there is evidence of ESA consultations that would be boundary, thus the unit will still spawning migration as far as fish can required to address impacts to the provide sturgeon access to the move until they are deterred by impacts species even in the absence of critical maximum upstream extent of spawning of the projects. Further, we do not find habitat. The commenters requested that habitat, and the change will not affect the unknown direction of travel of the we omit discrete areas around the the conservation value of the unit in Atlantic sturgeon captured in the St. intakes for three plants on the Cape Fear facilitating increased survival of all life Stephen fish lift to undermine our and Neuse River, but they were not stages and facilitating adult assessment that the fish was moving specific regarding the location or sizes reproduction and juvenile and subadult between the upstream freshwater and of the areas that should be excluded. recruitment into the adult population. the downstream estuarine waters.

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Whether the animal was trying to get collection of three Atlantic sturgeon commenters stated the evidence we above the St. Stephen Dam or had been carcasses from Lake Moultrie during the used to support designating unoccupied above the dam and was moving 1990s confirms that Atlantic sturgeon habitat above the Wilson and Pinopolis downstream, either direction suggests use the lakes at least for migration (77 Dams in South Carolina as suitable spawning movement. FR 5880; February 6, 2012). More spawning habitat and juvenile habitat Prior to the construction of the recently, an Atlantic sturgeon was for Atlantic sturgeon was based on Santee-Cooper Project, the Santee River documented in Lake Marion in extremely limited evidence and system supported a significant December 2016; it passed from the conjecture. Specifically, they felt we spawning population of Atlantic Cooper River into Lake Marion via the overemphasized the value of the sturgeon. As described in the final Pinopolis Dam Lock then presumably Wateree River as spawning habitat, and listing rule (77 FR 5880; February 6, made its way into Lake Marion via Lake inappropriately used information 2012), based on Secor (2002), the Moultrie and the Diversion Canal related to shortnose sturgeon spawning Santee-Cooper system had some of the (SCDNR pers com., 2017). Additionally, in the Congaree River, South Carolina, highest historical landings of Atlantic we believe the persistence of a dam- to assume that the conditions in the sturgeon in the Southeast. From 1970– locked population of shortnose Wateree River support spawning of 1995, 151 subadult Atlantic sturgeon, sturgeon, a congeneric, in these Atlantic sturgeon. including age-1 juveniles, were reservoirs (Collins et al., 2003), Our Response: We used the best collected from the Santee River (Collins indicates appropriate habitat for scientific information available (e.g., and Smith, 1997). In 2004, 15 subadult Atlantic sturgeon is present. However, Collins et al., 2003; Cooke and Leach, Atlantic sturgeon were captured in as stated previously, we have chosen to 2003; Leach and Cooke, 2006; Shortnose surveys targeting shortnose sturgeon in exercise our discretion under section Sturgeon Status Review Team, 2010; the Santee River estuary with a juvenile 4(b)(2) of the ESA and exclude the conversations with South Carolina state Atlantic YOY captured the year prior in unoccupied units of critical habitat biologists) on habitat preferences and the Santee River (77 FR 5880; February including Lake Moultrie and Lake spawning behaviors of shortnose 6, 2012). These data, considered the best Marion. sturgeon to inform our conclusions scientific information available, provide Comment 115: Two utility companies regarding available spawning habitat evidence of an existing spawning stated that we should consider whether and activity in the Broad, Congaree, and population in the Santee River. The best designating Lake Moultrie and Lake Wateree Rivers in South Carolina. We scientific information available also Marion in South Carolina as indicates the PBFs essential to the ‘‘unoccupied’’ critical habitat would did not mean to suggest there is a good conservation and recovery of the species preclude any options for fish passage deal of information on spawning per se, occur in the Santee River, including and protection at the Santee-Cooper but we included spawning type activity potential spawning habitat in the reach Project. and behavior in our assessment. of the river below Wilson Dam. Fish Our Response: As part of the re- Additionally, because the likely passage that is a requirement of the new licensing process for the Santee-Cooper spawning habitats for shortnose hydropower license to the South Project, we prescribed fish passage at sturgeon (Dadswell, 1979; Squires et al., Carolina Public Service Authority both the Wilson and Pinopolis Dams. 1993; Kieffer and Kynard, 2011) and (SCPSA) will provide access to The Federal Power Act (FPA) requires Atlantic sturgeon are the same or highly historical spawning grounds once FERC to make fish passage prescriptions similar (Gilbert, 1989; Smith and passage is implemented. Thus, an mandatory conditions of licenses. We Clugston, 1997), we believe it is occupied critical habitat designation is are currently in section 7 consultation appropriate to use information available appropriate to protect the PBFs existing with FERC regarding the re-licensing of from the shortnose sturgeon to identify below the dams. the Santee-Cooper Project, and that Atlantic sturgeon habitat. We Comment 114: Two utility companies consultation must treat the fish passage acknowledge there is limited suggested the designation of the entirety prescription as part of the proposed information on actual spawning by of the 165,000 acres of lakes within the action. Thus, nothing about this Atlantic and shortnose sturgeon in the Santee-Cooper system, South Carolina rulemaking will affect the fish passage Broad, Congaree, and Wateree Rivers. (Lake Moultrie and Lake Marion, along prescription. Regardless, as we stated We also acknowledge the exact location with the 5-mile-long Diversion Canal previously, we have chosen to exercise of spawning sites on many rivers in the that joins the reservoirs), is excessive our discretion under section 4(b)(2) of Southeast is not known and even when and unnecessary, and this entire area is the ESA and exclude the unoccupied known generally, may change from time unlikely to be used by Atlantic sturgeon. units of critical habitat including Lake to time as water depth and substrate They suggested limiting any critical Moultrie and Lake Marion. availability changes. However, aerial habitat designation in the reservoirs, Comment 116: Several commenters imagery confirms the presence of hard once occupied, to a corridor for passage, questioned our conclusion that there is bottom habitat in the Wateree River, and rather than including 165,000 acres of ‘‘a good deal of data’’ on sturgeon in our biological opinion for the inferior habitat as ‘‘critical habitat,’’ spawning in the Broad, Congaree, and relicensing of the Catawba-Wateree would alleviate many of the burdens on Wateree Rivers in South Carolina. Other project (NMFS, 2013), we concluded these commenters. The commenters also commenters, including SCDNR, that given the fish passage requirements said we had relied on the collection of questioned our decision to use at the Santee-Cooper project, Atlantic a single juvenile in the reservoirs to shortnose sturgeon behavior or likely and shortnose sturgeon presence in the ‘‘verify’’ that Lake Moultrie and Lake habitat preferences as a proxy for Wateree River below the Wateree Dam Marion in South Carolina can support Atlantic sturgeon when designating is reasonably certain to occur. Suitable successful recruitment of juvenile critical habitat. We also received spawning habitat has been documented shortnose sturgeon. comments from SCDNR indicating the in several locations below the Wateree Our Response: We acknowledge, as only documented shortnose sturgeon Dam. The flow releases required under the commenter suggests, that portions of spawning was in the Congaree River and the new license were specifically based, these areas may not be used at all times, none has been documented in the in part, on providing more extensive and possibly not at all. However, the Wateree or Broad Rivers. The and better quality spawning habitat for

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sturgeon. Duke Energy is required to discretion under section 4(b)(2) of the we ‘‘failed to demonstrate why the quantify and map spawning habitat ESA and exclude the unoccupied units proposed unoccupied critical habitat available to sturgeon below the Wateree of critical habitat. Therefore, the areas areas are essential to the conservation of Dam, with implementation of the new on the Congaree and Broad rivers are the species,’’ but we also ‘‘failed to flows, as a term and condition of the not included in the designation. demonstrate why the proposed biological opinion. Comment 118: One commenter noted occupied habitat is inadequate to ensure Additionally, in March 2011, SCDNR that the biological opinion for the the conservation of the species.’’ captured 19 adult shortnose sturgeon in Catawba-Wateree Hydroelectric Project Our Response: These commenters the tailrace of the Pinopolis Dam and requires Duke Energy Carolinas (NMFS, have applied the wrong standards for tagged 18 with acoustic telemetry tags 2013) to quantify and map potential unoccupied critical habitat: That and released them; the other fish had spawning habitat under the new flow unoccupied critical habitat can only be been tagged previously. Two of the regime approved in the project license designated if omitting the area will tagged shortnose sturgeon moved from the Wateree Dam to the confluence result in the extinction of the species, through Pinopolis Lock, through Lakes with the Congaree River. The and that designating unoccupied critical Marion and Moultrie, and both fish commenter suggested we delay habitat may only occur after first entered the Wateree River. One designating critical habitat in this reach determining that occupied habitat is shortnose sturgeon was recorded on the until Atlantic sturgeon are present and inadequate to support conservation. receiver at the Wateree Tailrace the information required by the ESA section 3(5)(A) defines critical (approximately 1⁄4 mile [0.4 km] biological opinion has been developed. habitat as: The specific areas within the downstream from the Wateree Dam) on Our Response: We agree that the geographical area occupied by the both March 16 and 18, 2011, and spent information collected during this study species, at the time it is listed, on which 8 days in the Wateree River. The other will likely provide additional scientific are found those physical or biological was recorded within 4 miles (6.4 km) of data that will be useful in determining features (a) essential to the conservation the Wateree Dam, and spent 14 days in more precisely the location, timing, etc., of the species and (b) which may require the Wateree River (NMFS, 2013). This of the spawning habitat. Also, as stated special management considerations or movement is indicative of attempted previously, we have chosen to exercise protection; and any specific areas spawning behavior. Because we have our discretion under section 4(b)(2) of outside the geographical area occupied evidence that shortnose sturgeon the ESA and exclude these unoccupied by the species at the time it is listed, released near the Pinopolis Dam have areas from the critical habitat upon a determination by the Secretary moved up to this spawning habitat designation. that such areas are essential for the below the Wateree Dam, we believe Comment 119: Several commenters conservation of the species. The ESA Atlantic sturgeon in the future will also asserted that we should not designate imposes no requirement that we must use that existing spawning habitat. the Broad River in South Carolina determine the species will go extinct There is little information on sturgeon upstream of the Columbia Dam as without unoccupied critical habitat. movement in the Congaree River and unoccupied critical habitat because the Similarly, there is no step-wise Broad River. However, biological dam is at the fall line and we said requirement that we first determine information was available for us to animals do not go above the fall line. occupied critical habitat is somehow prescribe sturgeon passage when Our Response: The commenter is insufficient before designating relicensing the Columbia Hydropower correct, generally, in that we do believe unoccupied critical habitat. Admittedly, Project in 2002 given: (1) The 1.758 Atlantic sturgeon cannot pass dams or our previous regulations had acres (7,115 square meters) of shoal natural features such as waterfalls and incorporated such an approach. habitats that exist above the project, and rapids found at the fall line of rivers. However, NMFS and the USFWS (the (2) the Broad River was likely an However, the geology of the Services) concluded that a rigid step- important spawning habitat for southeastern United States is such that wise approach does not necessarily sturgeons (DOC, 2002). in some cases the fall line is not as serve the best conservation strategy for However, as stated previously, we pronounced as other areas within the species. Regardless, we have chosen to have decided to exercise our discretion range of the species. We clarified in this exercise our discretion under section under section 4(b)(2) of the ESA and final rule where these conditions led to 4(b)(2) of the ESA and exclude the exclude these unoccupied areas from an upstream boundary above the fall unoccupied units of critical habitat. the designation. line. On the Broad River, we believe the Comment 121: The Department of the Comment 117: One commenter stated fall line likely did not act as an Navy stated that the Final Joint Base that, based on the assumption that impediment to sturgeon migration Charleston (JBC) INRMP demonstrates a Atlantic sturgeon spawning habitat historically. Rather, only manmade conservation benefit to Atlantic requirements are likely similar to features (e.g., dams) are likely blocking sturgeon and requested critical habitat shortnose sturgeon and because access to the historical spawning not be designated in those areas of the shortnose sturgeon are known to spawn grounds on this river. However, as Cooper River, South Carolina (Carolina in the Congaree River, South Carolina, stated previously, we have chosen to Unit 7), adjacent to JBC properties downstream of the Interstate 77 bridge, exercise our discretion under section pursuant to ESA section 4(a)(3)(B). Atlantic sturgeon would likely use 4(b)(2) of the ESA and exclude the Our Response: We appreciate the spawning habitat in the Congaree River unoccupied units of critical habitat. Navy developing an INRMP that below Interstate 77 as well. Thus, the Comment 120: Two utility companies includes benefits to Atlantic and commenter suggested there is sufficient asserted the information in the proposed shortnose sturgeon. We reviewed the spawning habitat in the Congaree rule was insufficient to conclude that information provided during the already, and the Broad River above the the failure to designate the comment period and agree the INRMP Columbia Dam should not be ‘‘unoccupied’’ reaches of the Santee and demonstrates an applicable considered essential to the conservation Wateree Rivers in South Carolina as conservation benefit, as defined in our of the species. critical habitat will result in the regulations at 50 CFR 424.12(h). Section Our Response: As stated previously, extinction of the species. Similarly, 4(a)(3)(B)(i) of the ESA states that we we have chosen to exercise our another commenter said not only had may not designate as critical habitat any

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lands or other geographical areas owned shows no receivers even reach to U.S. commenter concluded that if Atlantic or controlled by the DOD, or designated Hwy 301 on the North Fork of the Edisto sturgeon are able to spawn and produce for its use, that are subject to an INRMP River. The same illustration does show larvae downstream of NSBL&D, then prepared under section 101 of the Sikes four receivers at or above U.S. Hwy 301 habitat upstream of the dam should not Act (16 U.S.C. 670a), if the Secretary on the South Fork of the Edisto River. be considered essential to the determines in writing that such plan Based on this information, we do not conservation of the species. provides a benefit to the species for believe a lack of detections on the Our Response: As we discussed in the which critical habitat is proposed for Edisto above U.S. Hwy 301 is entirely proposed rule, sturgeon are currently designation. The ESA further states that surprising, nor indicative that our frequently seen at the base of the this provision does not affect the upstream boundary is incorrect. NSBL&D during spawning season, requirement to consult under section Moreover, we determine critical habitat indicating either crowding below the 7(a)(2), nor does it affect the obligation boundaries based on areas where PBF(s) dam or individual motivation to spawn of the DOD to comply with section 9. essential to conservation of the species farther upriver, or both. Regardless, as We have provided our detailed are located, not necessarily where stated previously, we have chosen to evaluation of the JBC INRMP and how individual animals have been exercise our discretion under section it meets our regulatory requirements in documented. Our data indicate 4(b)(2) of the ESA and exclude the the Application of ESA Section historical spawning likely occurred unoccupied units of critical habitat. 4(a)(3)(B)(i) (Military Lands) section of upstream of U.S. Hwy 301 and suitable Comment 125: One commenter this final rule. spawning substrate likely exists near the pointed out that the proposed rule states Comment 122: The Navy stated that fall line in both the North and South Atlantic sturgeon typically cannot pass designation of critical habitat in Forks of the Edisto River. The dams or natural features such as Carolina Unit 3 would affect its ability commenter provided no information waterfalls and rapids found at the fall to conduct training exercises at the suggesting the PBFs are absent above line of rivers. Based on this statement, Lower Neuse River Small Boat Training U.S. Hwy 301. For these reasons, we they asserted that if any area upstream Area in North Carolina, forcing units to believe our upstream boundary for the of NSBL&D becomes accessible to travel to Norfolk, Virginia, or Camp Edisto River is appropriate. Atlantic sturgeon, then the fall line near Lejeune, North Carolina, which For similar reasons, we believe our the Interstate 20 Bridge should be increases costs and reduces time for upstream boundary on the Combahee- considered the upstream limit of training. They stated this would Salkehatchie River is correct. Post et al. Atlantic sturgeon spawning habitat. The ultimately cause adverse impacts to (2014) reports there are no acoustic commenter concluded that unless the national security. receivers above Interstate 95, best available information indicates that Our Response: Based on the approximately two miles (3.2 km) some other landmark should be used, information provided by the Navy, we (upstream from U.S. Hwy 21). Given the the fall line should be considered the could not determine the route of effect lack of receivers farther upstream, it is upper limit of spawning habitat. (i.e., the aspect of the action that could not possible to validate the commenter’s Our Response: As we explained in the cause direct or indirect impacts on assertion that sturgeon do not pass U.S. proposed rule, our objective was to critical habitat) the training exercises Hwy 21. Additionally, the commenter include the farthest upstream extent of would have on any of the PBFs. provided no information contradicting spawning habitat essential features Therefore, we do not believe that the our determination that the PBFs extend within critical habitat unit boundaries. designation of critical habitat will above U.S. Hwy 21. For these reasons, Generally, Atlantic sturgeon cannot pass require consultation under the ESA, and we believe our upstream boundary for dams or natural features such as thus, there will be no impact to this the Combahee-Salkehatchie River is waterfalls and rapids found at the fall training or to national security from this appropriate. line of rivers. However, the geology of designation. Comment 124: SCDNR suggested that the southeastern United States is such while it was possible two individual that in some cases the fall line is not as South Atlantic Unit Rivers Atlantic sturgeon successfully passed pronounced as in other areas within the Comment 123: SCDNR and another through the NSBL&D on the Savannah range of the species and suitable commenter stated the upstream limits of River at the Georgia/South Carolina spawning habitat for sturgeon is present the Edisto River (South Atlantic Unit 1) border in 2011, they believed these above this zone, and we have clarified should be moved downstream to U.S. incidental successes are rare and this reasoning in this final rule. On the Hwy 301. They believed this is inconsistent with the fishway Savannah River, we believe the fall line appropriate based on telemetry data description in section 18 of the FPA and is not likely to act as an impediment to from 2010–2016 that showed 84 the ruling found in section 1701(b) of sturgeon migration. Rather, only Atlantic sturgeon tagged in the Edisto the National Energy Policy Act that manmade features (e.g., dams) are likely River did not pass above this area. indicate a fishway should be safe, blocking access to historical spawning Similarly, SCDNR said the upstream timely, and effective for all life stages of grounds. We believe once above limits of the Combahee-Salkehatchie such fish. As a result, the commenter NSBL&D, Atlantic sturgeon will be able River unit (South Atlantic Unit 2) recommended that the upper extent of to continue upstream until the next should be moved downstream to U.S. the critical habitat designation on the manmade impediment (i.e., Augusta Hwy 21, because they believed the Savannah River should be limited to Diversion Dam). Aerial imagery telemetry data from 2010–2014 showed ‘‘occupied’’ habitat ending at the confirms there are large areas of hard five Atlantic sturgeon tagged in the NSBL&D. Additionally, one commenter bottom substrate above the Interstate 20 Combahee River did not pass above this suggested the area upstream of the Bridge and at the base of the Augusta area. NSBL&D should not be considered Diversion Dam. Once sturgeon gain Our Response: It is quite possible no essential to the conservation of the access to this area in the future, it will acoustically tagged Atlantic sturgeon species because they believed Atlantic likely provide spawning habitat. have been detected above U.S. Hwy 301. sturgeon spawn downstream of NSBL&D However, as stated previously, we do An illustration of acoustic receivers on between rkm 213 and rkm 301 (Post et not believe the benefits of designating the Edisto River in Post et al. (2014) al., 2014; Collins and Smith, 1997). This this area as unoccupied critical habitat

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at this time will outweigh the benefits we could not clearly identify what Comment 128: The GADNR suggested of excluding this area from the information they based that suggestion the upstream extents of the Ogeechee, designation. Thus, we have chosen to upon. In the absence of clear Satilla, and St. Marys Rivers proposed exercise our discretion under section information suggesting that would be for designation in Georgia were 4(b)(2) of the ESA and exclude this area the appropriate boundary, we chose the inappropriate because they likely do not of unoccupied critical habitat. Mayfield Mill Dam as our revised contain hard bottom substrate and/or Comment 126: The Georgia upstream boundary. Based on this water of appropriate depth that is free Department of Natural Resources information, we have modified the of barriers. They referred to a river (GADNR) had objections to our location of the upstream extent of South classification framework developed by upstream boundary on the Ogeechee Atlantic Unit 4 (Ogeechee River). We are the Southeast Aquatic Resources River, Georgia. They said that the river not projecting a decrease in impacts in Partnership that classified rivers (from becomes very shallow and impassable this unit associated with decreasing the smallest to largest) based on upstream by boats during droughts and low flow length of the unit; given that the drainage and/or mean annual flow as: periods, and it is possible that sturgeon activities we predict will occur and Headwaters, Creeks, Small Rivers, move upstream of Louisville, Georgia, require consultation are not location- Medium Tributary Rivers, Medium but only during high flow years. specific, they could still occur within Mainstem Rivers, Large Rivers and Great Further, they said they had documented the modified unit boundaries. Rivers (http://southeastaquatics.net/ some limited rocky habitat upstream of Comment 127: The GADNR also sarps-programs/sifn/instream-flow- the U.S. 1 Bridge in Louisville. The suggested including the lower resources/river-classification- commenter also reported two potential Canoochee River, Georgia, up to the framework-2). GADNR stated waterbody physical impediments to sturgeon confluence of Canoochee Creek at Fort size is correlated with river depths and passage, upstream of State Road 88, at Stewart, Georgia, as critical habitat. The can help approximate the distribution of a steep shoal at Shoals, Georgia, potential spawning habitat, which ¥ commenter suggested this area because (33.253671 degrees lat., 82.756736 of its large size (‘‘medium-main stem occurs ‘‘below the fall line of large degrees long.) where flows do not create river’’), because adult Atlantic sturgeon rivers’’ as described in the proposed 1.2 m depths at any point in the channel have been observed in the Canoochee rule. They added that the smallest water and at Mayfield Mill Dam, which is not River, and juvenile Atlantic sturgeon body size that Atlantic sturgeon are passable by sturgeon (33.364799 degrees known to spawn in and migrate through ¥ have been observed downstream in the lat., 82.805872 degrees long.). They Ogeechee River. They stated they in Georgia is the ‘‘medium-main stem requested we consider revising the believe the Canoochee River has river’’ category in the upper Oconee and upstream boundary to the crossing at sufficient depth for movement of adult Ocmulgee Rivers in Georgia. The State Road 88 near Davisboro, Georgia. Atlantic sturgeon. commenter indicated some of the Our Response: After reviewing the upstream reaches we proposed for Our Response: We reviewed the information provided by the designation in the Ogeechee and Satilla information provided by the commenter, we agree that our upstream Rivers in Georgia, and St. Marys Rivers, boundary should be adjusted commenter. We also conferred with Florida, are categorized as ‘‘small downstream by 28 rkm for South state resource agency staff and academic rivers,’’ which is two categories smaller Atlantic Unit 4 (Ogeechee River) to the researchers to evaluate the addition of than ‘‘medium-main stem river.’’ The base of the Mayfield Mill Dam the Canoochee River as critical habitat. commenter suggested the appropriate (33.364799 degrees lat., ¥82.805872 We followed the same process in boundary for the St. Marys River, degrees long.), north of Mayfield, assessing the designation of the Florida, should be the confluence with Georgia. We confirmed the dam is likely Canoochee River as we did with other Boone Creek, approximately 5 miles (8 to be an impediment to upstream rivers. To be considered critical habitat, km) north-northeast of St. George, movement of Atlantic sturgeon and fish the Canoochee River needed to have Georgia. The commenter recommended passage at the dam is not foreseeable. information supporting one or more of we change the upstream boundary of the The commenter suggested the shoals at the following: (1) Capture location and/ Satilla River, Georgia, to the confluence Shoals, Georgia, could act as an or tracking locations of Atlantic with Hog Creek, approximately 1 mile impediment to Atlantic sturgeon sturgeon identified to its DPS by genetic (1.6 km) east of Talmo, Georgia. passage under certain flow conditions; analysis; (2) capture location and/or Our Response: Our use of ‘‘large’’ these shoals are located at the fall line. tracking locations of adult Atlantic rivers in the proposed rule was not While potentially an impediment, we sturgeon identified to its DPS based on intended to imply a specific believe passage could occur during the presence of a tag that was applied classification system. It was meant more higher flow conditions. Conversely, the when the sturgeon was captured as a colloquially as a way to differentiate the Mayfield Mill Dam is impassable and juvenile in its natal estuary; (3) capture main stem of significant coastal rivers likely represents the extent of upstream or detection location of adults in from their smaller tributaries. Our spawning habitat on the Ogeechee spawning condition (i.e., extruding eggs determinations are based on the River. For these reasons, we do not or milt) or post-spawning condition likelihood that one or more PBFs are believe Atlantic sturgeon can access (e.g., concave abdomen for females); (4) present, not on a specific river habitat above the dam now, or in the capture or detection of YOY and other classification system. GADNR did not foreseeable future. Moreover, the fall juvenile age classes; and (5) collection provide any site-specific information line and associated spawning habitat is of eggs or larvae. While the information that the PBFs are not present in these about 20 rkm downstream of the reviewed and opinions expressed by areas, and therefore we are not changing Mayfield Mill Dam and thus, excluding experts suggested that Atlantic sturgeon the upstream boundaries on these rivers. areas above the dam from critical habitat may use the Canoochee River, none of Comment 129: One commenter will not affect our conservation these necessary criteria were met for the supported our designation of occupied objective for this unit. The commenter Canoochee River. Thus, we did not and unoccupied critical habitat. suggested we move our upstream consider it as having met our criteria for However, they requested we consider boundary to the crossing at State Road a spawning river or for designation as regional datasets including the: 88 near Davisboro, Georgia. However, critical habitat. Southeastern Aquatic Connectivity

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Assessment Project, the National Fish River, a tributary to the St. Johns River; Comments on Impacts Analysis Habitat Partnership (NFHAP) database and (3) spawning habitat exists above Comment 131: An industry trade (Crawford et al., 2016), the Multistate the Kirkpatrick Dam on the St. Johns group pointed to our determinations Aquatic Resources Information System River, which would become accessible that the majority of the section 7 (MARIS http://www.marisdata.org/), if the dam were breached or removed. consultation costs would already be and the North Carolina Museum To this latter point, the commenters incurred based on the listing of the Collection data (http:// provided a letter from the U.S. Forest Atlantic sturgeon itself and that ‘‘[i]t is collections.naturalsciences.org/). They Service indicating the removal of the extremely unlikely that [project] also asked us to consider additional dam infrastructure and restoration of the modifications that would be required to literature sources including Martin et al. Ocklawaha River would result in avoid destruction or adverse (2014), ASMFC (2004), and Esselman et substantial downstream and upstream modification of critical habitat would al. (2013), which they believe support benefits. The commenters indicated that not also be required because of adverse the inclusion of the Satilla River, while they could not predict exactly effects to the species.’’ They wondered, Georgia, up to its headwater above when the Ocklawaha River would be if there are no categories of permits or Route 32 in Georgia. other Federal activities that would be Our Response: We evaluated the accessible to Atlantic sturgeon, the U.S. regional datasets and literature sources Forest Service’s support for the removal impacted solely or even primarily by suggested by the commenter. While the of the dam and restoration of the river consultation over impacts to designated commenter suggested we review creates a reasonable assumption that the critical habitat (rather than impacts to ASMFC (2004) and Esselman et al. Kirkpatrick Dam will be ‘‘passable in the listed species), what is the purpose (2013), they did not provide the citation the future.’’ Further, they suggested of designating critical habitat? They for these references; thus, we could not designating the area as critical habitat went on to state that if designation of review those documents. Generally, we may hasten the restoration of the river critical habitat is ‘‘not prudent,’’ we found the regional datasets the to its natural course. should not make such a designation. Our Response: See response to commenter suggested either referred to The same commenters also stated the species occurrence information (i.e., Comment 49. South Atlantic DPS is endangered with Comment 132: An industry trade North Carolina Museum Collection) or only nine rivers listed to produce wide-ranging subject matter (i.e., group suggested we had failed to juveniles over the entire DPS range but perform the requisite analysis of MARIS). Both NFHP and Martin et al. listing a tenth (the St. Johns) river (2014) provided information focusing on whether certain areas should be would add another river with the disturbances such as urban land use, excluded. They believe that to comply potential to produce juveniles in the dams, crop land use, and impervious with our statutory mandate to consider surface cover, but neither discuss the DPS. They also suggest colonizing whether the benefits of excluding areas proposed PBFs specifically. None of the juveniles (and adults) are available from from the critical habitat designation references provided information the Altamaha River, which is within outweigh the benefits of designation, we indicating the PBFs occur anywhere easy swimming range (about 200 miles; must provide some specific analysis of outside our current designation. The 321 km) from the St. Johns River. the conservation benefits derived from best available information from U.S. Finally, they indicated that fish in the designating specific areas compared to Geological Survey (http:// southernmost rivers in the species’ the economic costs of designating those viewer.nationalmap.gov/viewer/) shows range will likely have adaptations areas. They indicated we made no the main stem of the Satilla River runs important for the entire range of attempt to carve out less valuable areas out well before the fall line. Thus, we subpopulations in the DPS during the based on economic, national security, or believe the upstream extent of spawning future period of climate warming. They other relevant impacts. They claimed habitat in the river is at the confluence stated, ‘‘Subpopulations in the South our analysis is cursory and grossly of the Satilla and Wiggins Creeks Atlantic can share genetic adaptations inadequate because we do not evaluate approximately 2 miles (3.2 km) north of within their DPS and with more whether the benefits of exclusion the State Route 158 in Georgia, and that northerly DPS during spawning to more outweigh the economic costs of the proposed boundaries for critical quickly adapt the species to a changing designation for particular areas that will habitat on the Satilla River are environment.’’ be designated (aside from areas of concern to the Navy). appropriate. Our Response: Based on available Comment 130: Two commenters Our Response: The commenters’ information, the St. Johns River does not suggested our decision not to designate argument misstates the requirements of meet the criteria we established for inaccessible parts of the St. Johns River, the ESA. The ESA does not require the Florida, is inconsistent with our inclusion of rivers in this critical habitat use of any particular methodology in the treatment of other rivers that we designation, outlined in our response to consideration of impacts. The ESA also designated based on the existence of Comment 127. We found historical and/ does not require that we carve out ‘‘less historical spawning habitat being or current information indicating valuable’’ areas of critical habitat. temporarily blocked by dams, including Atlantic sturgeon are using the Cape However, section 4(b)(2) of the ESA on the Cape Fear River, North Carolina, Fear River, North Carolina, the Santee- provides that the Secretary may exclude the Broad and Wateree Rivers in South Cooper System in South Carolina, and any area from critical habitat if he Carolina, and the Savannah River at the the Savannah River at the Georgia/South determines that the benefits of such Georgia/South Carolina border. Carolina border to spawn. In contrast, exclusion outweigh the benefits of In requesting that we designate the St. we could find no such information for specifying such area as part of the Johns River, Florida as critical habitat, the St. Johns River, Florida, and the critical habitat. This is true unless he the commenters contend: (1) The St. commenters did not provide any new determines, based on the best scientific Johns River may have historically had a information. Thus, the St. Johns River and commercial data available, that the subpopulation of Atlantic sturgeon; (2) does not meet the criteria to be failure to designate such area as critical freshwater spawning and rearing considered critical habitat for Atlantic habitat will result in the extinction of habitats are available in the Ocklawaha sturgeon. the species concerned. The legislative

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history regarding section 4(b)(2) likely to destroy or adversely modify caused by designation of the exclusion analyses suggests that the critical habitat. These economic impacts unoccupied reaches of the Santee River, consideration and weight given to may include both administrative and Lake Moultrie, Lake Marion and, to a impacts is within the Secretary’s project modification costs. As stated lesser extent, the Wateree River in South discretion (H.R. 95–1625) and the previously, we examined the ESA Carolina. The commenters stated Santee Secretary is not required to give section 7 consultation record over the Cooper and Duke Energy Carolinas are economic or any other ‘relevant impact’ last 10 years to identify the types of responsible for administering FERC predominant consideration in his Federal activities that may adversely licenses for their respective projects. specification of critical habitat. In our affect proposed Atlantic sturgeon They indicated all FERC licenses proposed rule, we explained our critical habitat. In addition, we include a standard land use article that preliminary determination that we contacted Federal agencies that conduct, allows licensees to authorize certain would not exercise our discretion to permit or fund activities in the areas types of use and occupancy of project consider exclusions. However, based on covered by critical habitat and asked lands and waters. This standard land input received during the public review them whether our assessment of the use article also allows licensees to grant process, we determined that conducting types and numbers of activities likely to easements, rights-of-way, or leases of a discretionary exclusion analysis for require consultation over the next 10 project lands and waters for a number areas of unoccupied habitat within the years appeared accurate. The only of activities. The standard land use range of the Carolina and South Atlantic agency that identified specific actions article also allows for more significant DPS was warranted (given that occupied that we should add to our analysis was types of use and occupancy on project units are currently used by Atlantic EPA, and we have added consultations lands or waters if 60-day prior notice is sturgeon for reproduction and on approval of state water quality provided to FERC. The commenters recruitment, and due to the severely standards to the Impacts Analysis. stated the proposed rule is unclear on depressed levels of all river populations, In terms of costs to permittees, we whether FERC and the licensee are occupied units are far too valuable to took a conservative approach in protected by any incidental take both the conservation and the estimating that each type of Federal statement included in the licensee’s continuing survival of Atlantic sturgeon action that could involve a third-party biological opinion issued for the to be considered for exclusion). permittee, would actually involve a relicensing of the projects or whether Based on that analysis, we have permittee in the future, and included section 7 consultation under the ESA is elected to exclude the Santee-Cooper estimated administrative costs for those required for each discrete activity. The river system (CU1) and Savannah River entities in our analysis (see IA, Section commenter suggested that if the latter is (SAU1) unoccupied units of critical 3.3.1). the case, then licensees and their habitat. We determined the benefits of Our review determined no category of designees will be required to prepare future Federal action would have routes exclusion (that is, avoiding some or all the equivalent of a biological assessment of effects solely to the PBF(s) of critical of the impacts that would result from to submit a 60-day prior notice to FERC habitat and not also have potential designation) outweigh the benefits of for each of the prior notice activities routes of adverse effects to Atlantic and/ designation. contemplated by the standard land use Comment 133: Several commenters or shortnose sturgeon. However, in the article that could affect critical habitat, suggested our DIA was incomplete and case of USACE issuance of permits and FERC will be required to assess the largely ignored the costs to permittees under section 404 of the CWA or section impacts and determine if consultation associated with ESA consultation. They 10 of the Rivers and Harbors Act (RHA), with us is warranted within this time also believed the DIA underestimated we conservatively estimated that every period. The commenters indicated they the costs associated with implementing one of these future actions would result and maintaining changes to facilities in incremental impacts because these believe this could include hundreds of and operations required to prevent types of actions could in theory be activities over a license term. At a destruction or degradation of critical implemented while migratory sturgeon minimum, the commenters request that habitat. The commenters suggested are not present in a project’s action area. we clarify that an incidental take instead that the DIA focused on the Regarding the specific types of costs statement, issued as part of the FERC administrative costs to NMFS created by mentioned by the commenter, it is not licensing process, covers all activities the designation while underestimating clear that these costs would be authorized or required pursuant to the the costs incurred by the regulated attributable incrementally to the ESA, FERC license, including activities community and by responsible state and would not instead be a baseline conducted pursuant to the standard agencies. Specifically, one commenter requirement of the FPA that governs the land use article, maintenance activities, estimated additional costs of $10,000 to re-licensing process. If the types of and installation of required fish passage. $70,000 (related to preparing for and activities are identified by FERC as Otherwise, the commenters suggested holding stakeholder meetings, required to comply with the ESA, it is we must analyze the burden on developing and executing field studies, likely that these studies and meetings licensees and agencies in our DIA. etc.) would be incurred during the would address potential impacts to both Our Response: Incidental take hydropower relicensing process if the sturgeon and critical habitat, and as statements included in biological proposed designation were adopted such these costs are part of the baseline opinions issued at the conclusion of a without changes. requirement to consult to evaluate formal ESA section 7 consultation Our Response: We do not believe the potential impacts to these species. Thus, pertain to the incidental taking of DIA underestimated the potential costs we do not agree that designation of threatened or endangered species, not to state agencies, permittees, or other critical habitat would create the for impacts to critical habitat. In any members of the regulated communities. additional, incremental costs suggested event, when we consult on FERC’s Economic impacts of the critical habitat by the commenter. proposed issuance of a hydropower designation result through Comment 134: Two utility companies license, the incidental take implementation of section 7 of the ESA believed we grossly underestimated contemplated should include any take in consultations with Federal agencies both the economic cost and the associated with the activities the to ensure their proposed actions are not administrative burden that will be commenter describes, if FERC or the

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applicant have identified those types of positive (benefits) and negative (costs), queried PCTS, going back 10 years, to activities as part of the scope of the whether or not the benefits are identify relevant consultations that action being consulted on. FERC will immediately realized. We are not occurred in each of the proposed critical need to determine whether reinitiation required to determine that benefits, or habitat areas or units that, if of consultation is required for any positive impacts, of designation will be implemented in the future, could affect biological opinions we have issued, significant or accrue over any particular one or more of the proposed PBF(s), or based on determining whether the timeframe; however, if we determine it could affect both the critical habitat and ongoing action may affect newly- is appropriate to conduct an exclusion Atlantic sturgeon. We also requested designated critical habitat. Because analysis on some or all areas of a that Federal action agencies, including consultations on a listed species must designation, it is our general practice to the USACE, provide us with also evaluate impacts to their habitat, exclude areas under section 4(b)2 when information on future consultations if whether designated as critical habitat or the benefits of exclusion outweigh the we omitted any future actions likely to not, most or all biological opinions benefits of inclusion. Following our affect the proposed critical habitat. The issued may evaluate impacts to habitat consideration of the costs and benefits USACE’s comment enumerates numbers features now being included in the of designating unoccupied critical of consultations by USACE district, but critical habitat designation. To be habitat, we have chosen to exercise our not whether those numbers include conservative, in our Impacts Analysis discretion under section 4(b)(2) of the actions that may occur solely in marine we assumed reinitiation would be ESA and exclude those areas, which and estuarine environments. It is also required on FERC actions. During any includes Carolina Unoccupied Unit 2. unclear from the information provided reinitiated consultation that they Comment 136: The USACE suggested by the commenter whether the actions request, FERC should include the our DIA does not adequately address the they referenced have been ongoing and standard land use article that allows potential increase in informal would affect both the species and licensees to authorize certain types of consultations. They said the DIA critical habitat in the future, but were use and occupancy of project lands and concluded most of the projects simply not consulted on for effects to waters as part of the Federal action, in considered under General Permits the species. It is also unclear whether which case any impacts from activities (Nationwide/Regional/Programmatic) these projects were not consulted on under the article over the term of the issued by the USACE are very small- because the action agency determined license would be analyzed under the scale, and the impacts to listed species there would be no effect to Atlantic or associated biological opinion and would and designated critical habitat from shortnose sturgeon. The USACE has not not require separate consultation. these types of projects have already provided us tangible information with However, as stated previously, we have been considered under programmatic which to modify our Impacts Analysis. chosen to exercise our discretion under biological opinions. As a result, future Simply stating that more consultations section 4(b)(2) of the ESA and exclude projects will generally not require are expected is not sufficient. As a the unoccupied reaches of the Santee individual section 7 consultation. The result, we believe our final Impacts River, Lake Moultrie, Lake Marion and commenter stated that this assumption Analysis still accurately reflects the the Wateree River from the designation. is not true for every USACE District; not likely number of future consultations. Comment 135: Two commenters all Districts have programmatic Comment 137: The NCWQA and suggested the benefits we describe as biological opinions in place. They stated SCWQA stated the DIA does not discuss likely to occur with the proposed the USACE makes effects the impacts of the proposed designation designation of ‘‘Carolina Unoccupied determinations based on the effect the on NPDES permit programs, state water Unit 2’’ as critical habitat (e.g., activity would have on the species and/ quality standards, or Total Maximum conservation benefit of species recovery, or critical habitat, not on the type of Daily Load (TMDL) determinations. ecosystem health benefits, ecosystem authorization. Thus, they seemed to They pointed out that these potential service benefits, use benefits such as indicate some future projects in impacts were discussed in GARFO’s commercial and recreational fishing of proposed critical habitat would not have proposed rule to designate critical sturgeon and tourism) are ‘‘illusory or required consultation for potential habitat for the Gulf of Maine, New York likely will not accrue for some time into effects to Atlantic sturgeon, but would Bight and Chesapeake Bay DPSs of the future’’ because Atlantic sturgeon now require consultation to consider Atlantic sturgeon (81 FR 35701; June 3, are not currently present in the potential effects to Atlantic sturgeon 2016), and because we did not mention ‘‘unoccupied’’ reaches of the Wateree critical habitat. They suggested our them in our DIA we must republish the and Santee Rivers in South Carolina, estimate of 20 CWA section 404/RHA ‘‘North Carolina proposal.’’ and the reservoirs. They further stated section 10 projects permitting Our Response: We disagree. Our many of the ecosystem health and construction or dredge and fill in query of the PCTS database returned no service benefits we identified are proposed Atlantic sturgeon critical TMDL or NPDES consultations in the already being provided as a result of the habitat in the DIA is an underestimate. southeast within the last 10 years. There requirements of other Federal licenses They claimed their information suggests are differences between GARFO’s and or state/Federal permit authorizations. the new designation would lead to at SERO’s impacts analyses regarding the They claimed designation would least 20 additional consultations per potential impacts of critical habitat impose considerable economic, year in the USACE’s Savannah District designation on NPDES permit programs, administrative, and other burdens on and at least 17 in the Wilmington, North state water quality standards, or TMDL industry and resource agencies. Thus, Carolina, and Charleston, South determinations. Those differences are they believed we should determine that Carolina Districts per year, or 370 new appropriate due to differences in the benefits of excluding ‘‘Carolina consultations over a 10-year period whether the EPA has delegated Unoccupied Unit 2’’ far outweigh any across those 3 districts. authority to particular states to minor, incremental benefits associated Our Response: We used the best administer programs under the CWA. In with designation of these areas. scientific information available when the Southeast, the EPA has delegated Our Response: When we designate determining the likely future section 7 the authority to administer NPDES critical habitat we must evaluate the consultations for Federal actions in programs to the States of Florida, impacts of that designation, both critical habitat. As noted previously, we Georgia, South Carolina, and North

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Carolina. Upon authorization to states, consultation may include measures to unit entrainment standard, the owner or those NPDES activities are no longer minimize take, but the section 316/ operator of a facility must reduce actual Federal actions. Similarly, the TMDL NPDES permit does not authorize intake flow (AIF) at the new unit, at a programs are largely implemented by incidental take, the owners/operators of minimum, to a level commensurate with states, meaning they too are not Federal these plants may also need to obtain a that which can be attained by the use of actions that require consultation. Our section 10 permit under the ESA a closed-cycle recirculating system. DIA determined the primary source of authorizing such incidental take if there Under the second alternative new units impacts of critical habitat designation is is any doubt as to whether power plant entrainment standard, the owner or the cost of section 7 consultations. intakes or discharges may be adversely operator of a facility must demonstrate Because ESA section 7 consultations are modifying critical habitat. to the permit issuer (e.g., a state) that it only required for Federal actions, non- Our Response: As noted previously, has installed, and will operate and Federal activities are not affected, and our DIA and final Impacts Analysis do maintain, technological or other control were not considered in our DIA or final not consider NPDES activities because measures for each intake at the new unit Impacts Analysis. Additionally, we also they are not Federal actions, thus there that achieves a prescribed reduction in contacted the EPA to determine if we would be no consultations and no entrainment mortality of all stages of had missed any categories of activities impacts resulting from this designation fish and shellfish that pass through a likely to occur in the next 10 years that associated with NPDES activities. sieve with a maximum opening were not reflected in results of PCTS Section 316(b) of the CWA requires dimension of 0.56 inches. cooling water intake structures (CWIS) query. The EPA indicated they were not The commenters did not provide to reflect the best technology available aware of any NPDES permit program or information for us to determine whether (BTA) for minimizing adverse TMDL consultations that should be and to what extent they are affected by environmental impacts. Adverse included in our analysis for southeast EPA’s section 316(b) regulations. rivers. However, they did anticipate 9 environmental impacts include, but are not limited to, impingement and Nonetheless, we do not believe this nationwide pesticide consultations and critical habitat designation will increase an additional 12 consultations over the entrainment of organisms at CWIS, and changes in flow regime, caused by the any impacts to commenters related to next 10 years to address state water section 316(b), for the following reasons. quality standards; the final Impacts withdrawal of water. Under section 316(b), the EPA is required to issue The Services consulted with EPA on the Analysis reflects these consultations. impacts of its nationwide application of The commenter did not provide any regulations on the design and operation of intake structures to minimize adverse the section 316(b) rule and issued a information on potential NPDES permit biological opinion concluding the rule actions or TMDL approvals that may impacts. The EPA issued its Final Regulations to Establish Requirements would not jeopardize any listed species require consultation in the southeast for Cooling Water Intake Structures at or destroy or adversely modify any critical habitat units. Existing Facilities and Amend critical habitat under the Services’ Comment 138: A utility company Requirements at Phase I Facilities on jurisdictions (USFWS and NMFS, 2014). suggested we failed to mention the August 15, 2014 (79 FR 48300). The No additional consultations are required additional analysis that may be required following is a summary of EPA’s under the biological opinion and EPA’s to consider critical habitat when they description of the main components of rule; instead, the Services are engaged seek to obtain an NPDES permit for the the rule as follows. First, existing by permit issuers (EPA, or state or Tribal intake and discharge of water by the facilities that withdraw at least 25 governments) in a 60-day review of Cross station into and from Lake percent of their water from an adjacent permits under consideration, prior to Moultrie pursuant to section 316 of the waterbody exclusively for cooling the permits being published for public CWA. It was concerned that if purposes and have a design intake flow comment. A provision of EPA’s rule ‘‘unoccupied’’ critical habitat is of greater than 2 million gallons (7.6 requires affected permit applicants to designated near the station, it may be million liters) per day (MGD) are include threatened or endangered required to prepare an unnecessary required to reduce fish impingement species or critical habitat that may be in biological assessment to ensure that this under the final regulations. To ensure the action area of their facilities in the unoccupied critical habitat is not flexibility, the owner or operator of the assessments required for their permit affected by the activities authorized in facility will be able to choose one of applications. The Services may provide the NPDES permit. A separate utility seven options for meeting best recommendations on measures to company expressed similar concerns. It technology available requirements for protect listed species, including suggested we had not identified the reducing impingement. Second, existing measures that would minimize any power plants described in Comment 111 facilities that withdraw very large incidental take of listed species, and/or in our DIA and had not discussed the amounts of water—at least 125 MGD avoid likely jeopardy to a listed species permitting associated with the plants (473 million liters per day)—are or destruction or adverse modification and the anticipated increase in required to conduct studies to help their of critical habitat. If we reviewed a consultation and delay costs associated permitting authority determine whether 316(b) permit application for a CWIS in with permits issued pursuant to section and what site-specific controls, if any, Atlantic sturgeon critical habitat, we 316 of the CWA concerning intakes and would be required to reduce the number would first evaluate whether there are thermal discharges from power plants of aquatic organisms entrained by any routes of adverse effects to listed through the state NPDES programs. cooling water systems. This decision species or to the critical habitat. Similarly, two utility companies process would include public input. Conceivably, CWIS could affect the indicated there can be a lengthy process Third, new units that add electrical water quality essential features of water for review by NMFS with additional generation capacity at an existing depth, temperature, DO and salinity time potentially required to find a facility are required to add technology values, depending on the amount and compromise if the state agency issuing that achieves one of two alternatives timing of the water withdrawals/ the section 316 permit disagrees with under the national BTA standards for discharges. However, any such effects our recommendations. They expressed entrainment for new units at existing would also affect listed species concern that because a section 7 facilities. Under the first alternative new including Atlantic and shortnose

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sturgeon, and any measures we would on any particular water withdrawals of process. They went on to state that recommend to avoid such effects would concern and whether those would have consultation could cause project not be incremental impacts, including a Federal nexus to potentially trigger modifications, impose additional delay, attributable to the critical habitat consultation requirements. Similarly, no avoidance measures, or require designation. Therefore, any future ESA information on minor impacts to additional mitigation above what was section 7 or section 10 requirements wetlands that may affect Atlantic required by the action agency. The related to CWA section 316 or NPDES sturgeon critical habitat and require commenters reported Sundig (2003) consultation requests for critical habitat consultation was provided. If projects estimated the direct, out-of-pocket costs would be coextensive to consultations with a Federal nexus that impacted of section 7 consultation for a single- for the listed species; thus, we do not wetlands occurred in the past in areas family housing project to be several believe there would be any significant being included in the critical habitat thousand dollars per house. Beyond the delay or costs incurred for the units and required consultation, it consultation process itself, the consultations assessing impacts to would be included in our database and commenters suggested requirements to critical habitat. The commenters’ would be included in this analysis, avoid or mitigate impacts to critical concern about the lack of authorization likely under the USACE CWA section habitat could result in economic losses of incidental take of listed species 404/RHA section 10 permitting— of millions of dollars. The commenters through the 316/NPDES permit is not a dredge, fill, construction category. We concluded that by severely critical habitat issue, and thus there are conservatively assumed these actions underestimating the number of no impacts attributable to this rule. could result in fully incremental consultations that will be triggered by Comment 139: A farm-industry trade informal consultations in the future, and the proposed designations and the costs group expressed concern that the DIA assigned them a cost of $7,200 per of those consultations, we failed to did not comprehensively evaluate the consultation. Of this, a permittee could provide a meaningful analysis of section potential economic impacts to private incur $1,500-$3,000, depending on 7 consultation costs. landowners, particularly farmers. They whether a biological assessment is Our Response: We disagree. As were specifically concerned farmers required and is prepared by the explained in our responses to comments would bear the burden of additional permittee (see, Impacts Analysis Table 52, 133, 135 and 136 above, we believe permit review and regulatory 3–19). our estimate of the numbers of future requirements under the ESA, including Comment 140: Two commenters consultations is correct, and EPA prohibitions of certain crop stated that the area immediately commenters provided no information to protection products, permits for minor downstream from Blewett Falls Dam on the contrary. impacts to wetlands, and potentially the Pee Dee River at the North Carolina/ Comment 142: Several commenters, even curtailment of water withdrawals. South Carolina border (Carolina Unit 5) including GADNR, SCDNR, and Our Response: The requirements to should be excluded from designation as NCDOT, expressed concern that consider potential adverse effects to critical habitat. The commenters requirements to consult under section 7 critical habitat in section 7 asserted this area does not offer suitable of the ESA would increase consultations only apply to activities spawning habitat, and exclusion would administrative costs/burdens and cause funded, carried out, or authorized by alleviate the additional cost, long delays potentially affecting project Federal agencies. Because these complexity, and administrative burden costs, timelines, and fisheries requirements only apply to activities of carrying out activities authorized or management activities. with a ‘‘Federal nexus,’’ we do not required by the YPD license, including Our Response: As outlined in the anticipate the designation of critical fish passage activities. Impacts Analysis and described habitat to result in additional costs or Our Response: We disagree. As previously, our review of all Federal burden to strictly private or state discussed in our response to Comment actions that may adversely affect activities. The commenter is correct that 110 above, potential spawning habitat designated Atlantic sturgeon critical some additional review may be required does exist immediately downstream habitat indicates that none of those during Federal permitting to consider from Blewett Falls Dam, and it was types of actions would solely affect the the potential effects of a Federal action appropriate to set the upstream PBFs of critical habitat and not also on designated critical habitat. However, boundary of the unit at the dam. We have potential routes of adverse effects as noted previously, we anticipate any also disagree that foregoing designation to Atlantic and/or shortnose sturgeon. Federal action potentially affecting would alleviate additional cost, We acknowledge that actions occurring Atlantic sturgeon critical habitat would complexity, and administrative burden within designated critical habitat will have already required ESA section 7 of carrying out activities authorized or require an analysis and additional consultation to consider the potential required by the YPD license. As noted administrative cost to ensure Federal impacts to Atlantic or shortnose previously, we do not anticipate the actions are not destroying or adversely sturgeon, and thus any added burden designation of critical habitat will modifying critical habitat. Yet, those due solely to this rule will be minimal. impose additional administrative additional analyses will be added to Our analysis includes a conservative burdens or costs that would not have consultations that would occur anyway estimate of the consultation impacts due already been associated with ESA to consider potential impacts to to EPA’s authorization of pesticides over section 7 consultations to address sturgeon. Therefore, the designation of the next 10 years, noting these are impacts to Atlantic and shortnose critical habitat is not anticipated to national consultations that will require sturgeon. cause the significant additional costs or evaluating impacts on all NMFS listed Comment 141: An industry trade delays suggested by the commenter. species and designated critical habitat. group suggested we had significantly Comment 143: The Navy also Our conservative estimate is that these underestimated the true costs to a expressed concern about potential consultations would result in $1,474.84 permittee, because we had not included delays and administrative costs/burdens per unit attributable to Atlantic sturgeon potential costs associated with associated with the designation. The critical habitat over 10 years, for Federal employing biologists, other consultants, Navy also questioned our determination agencies and permittees combined. The or legal support they believe may be that impacts of dredging are coextensive commenter did not provide information necessary to navigate the consultation with the listing rather than incremental

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impacts of this rule, and they identified being designated to provide foraging that actions occurring within designated some areas on the Neuse River that they and developmental habitat services to critical habitat will require an analysis believe will lead to impacts to national juveniles; loss of portions of this habitat to ensure Federal actions are not likely security due to impacts of the could impede development of juveniles to destroy or adversely modify critical designation on training conducted in using the remaining habitat, or prevent habitat. Yet, those additional analyses those areas. the habitat from supporting some will be added to consultations that Our Response: See our response to juveniles. Coextensive project would be required anyway, to consider Comment 142 above regarding costs and modifications that might be required to potential impacts to sturgeon. delays generally. As we discussed in the prevent or lessen these impacts could Comment 145: NCWRC and SCDOT proposed rule, dredging to maintain involve changes in the depth of requested that we develop navigation channels may affect several deepening a harbor, port, or river. The programmatic ESA section 7 of the essential PBFs of Atlantic deepening of harbors and ports may also consultations or allocate additional sturgeon critical habitat. Dredging to create hypoxic zones which would resources to reduce the time associated deepen or widen navigation channels impact the water quality PBF that is with addressing new consultations. may involve removing rock, gravel, or designed to ensure survival of sturgeon. Our Response: We cannot require a soft substrate that is providing adult Coextensive project modifications that Federal action agency to consult on a sturgeon spawning habitat or juvenile might be required to prevent hypoxic programmatic basis, as it is up to the foraging habitat. Extensive dredging for zones could include limiting the action agency to define the scope of a harbor expansion may allow saltwater to amount of deepening or requiring the programmatic activity. However, we are intrude farther up a river, and adversely use of aeration systems. Thus, we did committed to continue working with impact the area containing the salinity not assert there would be no project our Federal partners as we have in the range necessary for young sturgeon. modifications to avoid adverse effects to past to identify opportunities for Other potential effects of dredging critical habitat, but as described above, streamlining consultations or ways to projects on the essential PBFs of project modifications would address increase efficiencies in the consultation Atlantic sturgeon critical habitat are adverse impacts to both critical habitat process. Within SERO, we are already increased siltation on spawning and sturgeon, thus the costs of such fully committing the available resources substrate, and the blockage of migratory modifications would not be incremental to ESA section 7 consultations, and we pathways through channels and inlets. impacts of this rule. agree that investigating the possibility At the same time, dredging may The Navy described training activities for programmatic consultations is a adversely affect Atlantic and shortnose that occur on the lower Neuse River as valuable tool. sturgeon. The types of adverse effects including small boat launch and Comment 146: A few commenters, are not likely to be temporary and recovery, high-speed boat tactics including an industry trade group, limited to periods of sturgeon absence, training, small boat defense drills, and expressed concern about potential and they are likely to be implemented small arms fire. We do not see a route delays for projects already undergoing in lower parts of the units where of potential effects from these activities consultation that would now have to sturgeon can be expected to be present to the PBFs of critical habitat, and thus include an analysis of adverse year-round. Thus, adverse effects of there would be no additional modification for Atlantic sturgeon navigation maintenance dredging consultation burdens beyond any critical habitat, as well as previous activities are likely to involve requirements to address impacts to the consultations that may need to be coextensive formal consultations to species. Thus, the designation would address impacts to both the species and not impact military training related to reinitiated based on the new critical the essential PBFs. Removal or covering national security in these areas. habitat designation. of spawning substrate could interfere Comment 144: Several commenters, Our Response: See response to with the services this PBF is designed including SCDNR, asserted that Comment 57. to provide—settlement of fertilized eggs designation of critical habitat (both Comment 147: One commenter and refuge, growth and development of unoccupied and occupied) means worried that important research projects early life stages. These effects to the projects that previously would have funded through time-limited Federal essential PBF would also be adverse qualified for USACE Nationwide grants, occurring within proposed effects to sturgeon eggs, larvae and early Permits or General Permits would no critical habitat units, may be delayed. life stages that were not able to settle, longer qualify, resulting in individual The commenter expressed concern over grow, develop or seek refuge. Project project review/analysis/certification. the length of time required to complete modifications to address both these Our Response: Whether a project is section 7 consultations. The commenter impacts to the PBF and the sturgeon permitted by the USACE under a expressed the belief that the timely could involve limiting the amount or Nationwide or General Permit or completion of section 7 consultations location of substrate removed, or another permitting mechanism, the will help to ensure these projects can turbidity controls to prevent sediment USACE must assess the effects of the provide data under the grant deadlines. deposition on hard substrate. Similarly, project on listed species and critical Our Response: We agree with the adverse effects of dredging in removing habitat and consult with us if listed commenter that delays of important the soft substrate PBF that would species and/or designated critical research projects within proposed interfere with provision of juvenile habitat may be affected. As previously critical habitat units should be avoided foraging services, could also injure or stated, our review of all previously if possible. We are committed to kill juveniles seeking to use that consulted-on Federal actions that may working with action agencies to foraging habitat. Coextensive project adversely affect designated Atlantic complete section 7 consultations as a modifications might be similar to those sturgeon critical habitat determined that quickly as possible. mentioned for impacts to the hard none of those types of actions would Comment 148: SCDNR requested that substrate feature. Changing the salinity solely affect the PBFs of critical habitat we develop guidance and Best regime by deepening harbors and parts and not also have potential routes of Management Practices for how in-water of rivers would remove portions of the adverse effects to Atlantic and/or work should be conducted in critical transitional salinity zone feature that is shortnose sturgeon. We acknowledge habitat.

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Our Response: We appreciate the the sampling program’s objectives but actions they fund, authorize, or carry recommendation. avoid destruction or adverse out are not likely to destroy or adversely Comment 149: SCDNR recommended modification of the critical habitat. modify critical habitat. However, we establish a list of activities With respect to the consultation section 7 of the ESA is written to ensure authorized by the USACE Nationwide requirements for the bottom disturbing that federally-funded projects go Permits that would not affect this activities identified, as outlined in the forward, so long as they do not destroy species or its critical habitat and thus IA, our review of all Federal actions that or adversely modify critical habitat. not require the section 7 consultation. may adversely affect designated Atlantic Even if a proposed action is likely to Our Response: It is the responsibility sturgeon critical habitat determined destroy or adversely modify critical of the USACE, as the Federal action none of those types of actions, including habitat, the section 7 consultation agency for the Nationwide Permits, to federally-permitted fishery research, process is specifically designed so that make determinations about their actions would solely affect the PBFs of critical a reasonable and prudent alternative, and request consultation if species and/ habitat and not also have potential consistent with intended scope of or critical habitat may be affected. We routes of adverse effects to Atlantic and/ proposed action, could be identified are available to provide technical or shortnose sturgeon. We acknowledge that would allow the action to proceed assistance and consultation, if requested that actions occurring within designated but without the same degree of impact by the USACE or other action agencies. critical habitat will require an analysis to critical habitat. Thus, we do not We have information readily available and additional administrative cost to believe it is necessary to exclude all on our Web sites for all Federal action ensure Federal actions are not likely to ‘‘federally-improved dredged channels’’ agencies, and the public, providing destroy or adversely modify critical and areas adjacent to marine terminals guidance on effects determinations. habitat. Yet, those additional analyses from critical habitat on the basis that Additionally, SERO and GARFO are will be added to consultations that such actions may be prevented from jointly drafting a consultation would occur anyway, to consider being implemented in the future. framework specific to analyzing impacts potential impacts to sturgeon. Therefore, Comment 152: The EPA stated we to Atlantic sturgeon critical habitat to the designation of critical habitat is not underestimated the number of section 7 assist USACE and other agencies with anticipated to cause the significant consultations, and associated costs, consultations. additional costs or delays suggested by likely to occur by failing to include their Comment 150: NCDMF and North the commenter. triennial state water quality standard Carolina Division of Coastal Comment 151: One commenter reviews. Management (NCDCM) suggested that expressed concern that the proposed Our Response: After reviewing the even minor modifications to trawl designation could prevent in-water information provided by the EPA sampling designs can affect the construction, dredging and bridge work regarding future water quality standard comparability of survey results across needed to: (1) Maintain safety margins consultations, per their request we time series, which may span multiple for large, ocean-going vessels navigating added three consultations for each of decades. They requested we consider into and out of port, (2) transit near or the states covered by this designation to the importance of maintaining under bridges, and (3) moor/unmoor the impacts analysis. consistency across sampling programs if safely at marine terminals, from Comment 153: An electric cooperative any new consultations are required due receiving Federal funding. The requested that we confirm that the to the proposed critical habitat commenter stated that section 7(a)(2) of proposed rule does not contemplate any designations. The commenter also the ESA requires Federal agencies to change in flow regime for the USACE’s expressed concern that other bottom ensure actions they fund, authorize, or projects on the Roanoke River, North disturbing activities such as cultch carry out are not likely to destroy or Carolina, and the Savannah River at the planting and artificial reef and oyster adversely modify that habitat, and South Carolina/Georgia Border. They reef construction could be impacted by pointed out we have determined a wide stated that any changes to the flow our habitat designation. They concluded variety of activities may affect critical regimes would require an update or that while the critical habitat habitat. The commenter seems to imply revision to the Water Control Manuals, designations may not impact these that because we have indicated one or which in turn would require an analysis activities, additional consultations for more of the activities above may have of the environmental impact of the critical habitat (either formal or effects to critical habitat, we could proposed rule under the National informal) will be required. impose a blanket moratorium on any Environmental Policy Act (NEPA). They Our Response: We agree that there is such activity and/or block those asked for this confirmation because they great value in consistency across activities from gaining Federal funding believe our DIA makes a number of sampling programs and do not seek to in the future. They believed stopping references to the relation of river flows change them without cause. However, if these projects would not only have a to critical habitat needs without we determine through section 7 dramatic economic impact, but would providing any details on whether the consultation that a sampling program also have a severe negative impact on rule specifically contemplates changes funded or permitted by a Federal agency navigation safety. The commenter to flow regimes. may adversely affect sturgeon or their requested we explicitly state in the final Our Response: The designation of habitats, including critical habitat, the rule that all ‘‘federally-improved critical habitat would impose no direct Federal agency is required to ensure the dredged channels’’ and areas adjacent to regulatory requirements and would not, action is not likely to jeopardize listed marine terminals are excluded from in and of itself, have any effect on species or destroy or adversely modify critical habitat. existing flow patterns. It is possible that critical habitat. In the extreme case that Our Response: We agree that the flows may need to be altered to address a sampling program is found to be likely proper maintenance of bridges, shipping adverse effects to critical habitat if such to destroy or adversely modify critical channels, and marinas is not only effects were identified during ESA habitat, we would be required to work important to ensure the flow of section 7 consultation on a new or with the parties involved to develop a commerce, but also to ensure safety. The ongoing Federal action that affects water reasonable and prudent alternative to commenter is also correct that the ESA flows in a way that also affects the PBFs that program, that would still achieve requires Federal agencies to ensure that of critical habitat. Additionally,

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environmental analysis under NEPA is bodies that dilute the effects of habitat, and the consultations and not required for critical habitat upstream dams relative to the effects of impacts would be largely coextensive. designations (see, Markle Interests, dams on the border of critical habitat. Comments on Our Coastal Zone L.L.C. v. U.S. Fish and Wildlife Serv., Comment 155: The Navy expressed Management Act Determinations 827 F.3d 452 (5th Cir. 2016); Bldg. concern over our determination that Indus. Ass’n of the Bay Area v. U.S. consultations for effects of dredging on Comment 156: NCDMF–NCDCM Dept. of Commerce, 792 F.3d 1027 (9th critical habitat will be fully coextensive suggested our consistency Cir. 2015); Douglas County v. Babbitt, 48 with consultations to address impacts to determination regarding designating F.3d 1495 (9th Cir. 1995), cert. denied, Atlantic sturgeon. They believe critical habitat is incomplete and does 116 S.Ct. 698 (1996)). designation of critical habitat can or will not meet the requirements of the Coastal Comment 154: One commenter result in an additional commitment of Zone Management Act, 16 U.S.C. 1451, suggested the proposed rule was unclear resources and expected requirements to et seq. (CZMA) and its implementing regarding whether hydropower projects modify proposed actions to prevent regulations. They maintained that we occurring outside, but upstream, of adverse effects to critical habitat. submitted an incomplete negative determination, because we had not proposed critical habitat units may need Our Response: We believe dredging provided an evaluation of the North to be altered to facilitate the objective of may affect critical habitat, but we Carolina coastal program’s enforceable the critical habitat designation. The believe consultations to consider those commenter asserted that if we intended policies. effects on critical habitat will be fully- Our Response: We disagree. While we to require alterations to existing flow coextensive with consultations to patterns in the geographical units recognize the State’s goals of coastal address impacts to sturgeon (both resource protection and economic currently under consideration for shortnose and Atlantic). The effects of designation as critical habitat, then our development, we determined that any dredging on the PBF(s) would also effects of the proposed action on North analysis in the proposal was deficient. result in injury or death to individual They requested that we clarify our Carolina’s coastal uses and resources are sturgeon, and thus constitute take. not reasonably foreseeable at this time. intentions on this point. Removal or covering of spawning Our Response: Dams and regulation of As indicated in our negative substrate could prevent effective water releases upstream of occupied determination, this designation of spawning or result in death of eggs or critical habitat could affect the PBFs critical habitat will not restrict any downstream, even if the dams larvae that are spawned. Changing the coastal uses, affect land ownership, or themselves are not located within the salinity regime by deepening harbors establish a refuge or other conservation critical habitat area. However, these and parts of rivers could result in area; rather, the designation only affects downstream impacts occurring within permanent decreases of available the ESA section 7 consultation process occupied critical habitat units will also foraging and developmental habitat for for Federal actions. Through the ESA affect sturgeon, and consultation would juveniles. These types of adverse effects consultation process, we will receive be required even without the are not likely to be temporary and information on proposed Federal designation. In all of our past limited to periods of sturgeon absence. actions and their effects on listed consultations on dams immediately Thus, adverse effects of dredging species and this critical habitat upon above habitat used by sturgeon, we activities identified by the Navy would which we base our biological opinions. found that only the structure operated be likely to be coextensive in formal It will then be up to the Federal action or authorized by the action agency at consultations to address impacts to both agencies to decide how to comply with hand and undergoing consultation the species and the PBF(s), and thus no the ESA in light of our opinion, as well would have adverse effects on sturgeon new requirements or project as to ensure that their actions comply and their habitats. Thus, but for modifications are anticipated as a result with the CZMA’s Federal consistency additional administrative costs, the of the critical habitat designation. requirement. majority of the costs of these In our long history of past and Comments on Executive Order 13211— consultations are not incremental ongoing consultations, we have Statement of Energy Effects impacts of this rule. It is possible that considered the effects that in-river flow regimes may need to be altered if activities (including dredging) would Comment 157: One commenter current regimes are adversely affecting have on both Atlantic and shortnose indicated we failed to meet the sturgeon and the essential PBFs of sturgeon and their shared habitats, requirements of Executive Order 13211 critical habitat, if such effects are where applicable. A main focus of all to prepare a Statement of Energy Effects. identified during ESA section 7 our past consultations on Federal The commenter indicated changes in consultation. actions in rivers (e.g., dredging, utility facilities and operations required We evaluated all existing dams and hydropower permitting) has been on by Federal ESA section 7 consultations, other structures that are upstream of the expected impacts to these species’ as a result of this critical habitat proposed upper boundaries of all of the habitats. Adverse effects to habitat, designation, have the potential to critical habitat units. We found that for including critical habitat, that will adversely affect in a material way the the specific existing facilities at issue, result in either injury or mortality of productivity and prices in the energy dams outside of critical habitat and individual sturgeon of any life stage sector within the region. upstream from a dam that forms the constitute take of the species. We have Our Response: We disagree. The boundary of critical habitat are not regularly determined that projects with commenter provided no information, expected to have adverse effects to adverse effects to sturgeon habitat will aside from the conclusion that the either unoccupied or occupied critical result in take of the species. It is this designation has the potential to habitat and would not require consultation history and experience that adversely affect in a material way, consultation. This is due to large leads us to project that if actions in productivity and prices in the energy distances between upstream dams and areas occupied by Atlantic and/or sector within the region, on which we the dams that form the boundary of shortnose sturgeon affect their habitats, can base changes in our impacts critical habitat, and the presence of those actions would have the same analysis. The only Federal actions on intervening structures, dams, or water effects on Atlantic sturgeon critical which we may consult that have

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material effects on energy are FERC comment, we reviewed the final rule to our attention. We have updated the final hydropower licensing actions. These ensure the literature cited section was rule to reflect this correction. actions have the potential to adversely accurate and complete, and made Summary of Changes From the changes when necessary. affect sturgeon as well as critical habitat, Proposed Rules and thus most of the impacts of these Comment 162: One commenter consultations will result from the ESA pointed out that we had erroneously Based on the comments received for listing of the Atlantic sturgeon rather cited them as a source of information in the proposed rule, Designation of than incremental impacts of the a personal communication, when the Critical Habitat for the Gulf of Maine, designation. Moreover, the FPA, which source was someone else. New York Bight, and Chesapeake Bay FERC implements in issuing Our Response: We agree with the DPSs of Atlantic Sturgeon (81 FR 35701; hydropower licenses, has independent commenter and apologize. We June 3, 2016), we have made several requirements to avoid adverse effects on erroneously cited the commenter as the changes in the final rule: fisheries resources and habitats, and source for information indicating that 1. The boundary for the upstream thus modifications to hydropower Atlantic sturgeon had passed above extent of the Pamunkey River, has been facilities to avoid impacts to critical Lock and Dam #1 on the Cape Fear moved upstream by 14 rkm. This change habitat may also be coextensive with the River, North Carolina, and we have was based on a comment we received FPA, rather than from incremental corrected that error in this final rule. from the Virginia Institute of Marine impacts of the designation. Comment 163: SCDNR and another Science that, based on new data, the commenter pointed out that we stated: area with suitable hard bottom substrate General Support or Disapproval of the ‘‘The capture of 151 subadults, and used by spawning Atlantic sturgeon Proposed Designation including age-one fish in 1997 indicates in the York River System extends farther Comment 158: We received five a population exists in the Santee River upstream on the Pamunkey River than comments from the general public that (Collins and Smith, 1997).’’ They what we proposed. This supplements were generally unsupportive of indicated that the Collins and Smith’s the existing data we relied upon for the protecting sturgeon, their habitats, or 1997 publication was a synthesis of all proposed rule. We determined that the their ecosystem. historical and recent records of both additional 14 km of Pamunkey River Our Response: We appreciate the time Atlantic and shortnose sturgeons in habitat was essential to the conservation these commenters took to provide input South Carolina waters from 1970–1995. of the Chesapeake Bay DPS and should to us. Thus, the number reported, 151, was not be part of the designated critical habitat Comment 159: We received collected in a single year, 1997, but for the York River System. The York approximately 300 comments from the instead was a sum of all Atlantic River System critical habitat unit now general public that were generally sturgeon records from 1970–1995. includes 206 rkm instead of 192 rkm. supportive of protecting sturgeon, their Our Response: We agree with the 2. The 16 rkm of the proposed habitats, or their ecosystem. We commenters. We erroneously Susquehanna River Critical Habitat Unit received an additional two comments of characterized the capture of 151 are not designated as critical habitat. We general support from non-governmental subadults, including age-1 fish, as received comments requesting removal organizations. occurring in a single year when those of the Susquehanna River critical Our Response: We appreciate the captures actually occurred from 1970– habitat unit and comments requesting supportive feedback received from these 1995 and we have corrected this error. inclusion of the upper Chesapeake Bay. commenters. Comment 164: SCDNR noted the Upon review, we determined that PBF difference between the Columbia Dam number 2 (a salinity gradient to support Necessary Editorial Changes and the Columbia Canal Diversion Dam, juvenile growth and physiological Comment 160: One commenter indicating the names are not development) is not present in the pointed out that we cited Flowers and interchangeable and both are part of the Susquehanna River unit, and is not Hightower (2015) but that reference was Columbia Hydroelectric Project. They likely to be present in the future. not included in the list of references. stated ‘‘the Columbia Dam has a Therefore, because we determined that Our Response: We agree with the constructed fishway that allows for the the coexistence of all four features is commenter. We erroneously omitted passage of American shad, blueback essential to reproduction and that reference from our list of references. herring and American eel; although recruitment, based on the information We have updated the list of references ‘sturgeon-friendly’ features were available, the lowermost 16 rkm of the to include this citation. incorporated in its design, to date, no Susquehanna River do not contain the Comment 161: One commenter sturgeon have been documented PBFs essential to the reproduction or pointed out that we cited Smith et al. utilizing this fishway nor have sturgeon recruitment of the Chesapeake Bay DPS (2014) in several locations, but the been documented in surveys above the and we are not designating this area as reference did not appear in the list of Columbia Dam.’’ Chesapeake Bay DPS critical habitat. references; however, Smith et al. (2015) Our Response: We appreciate the 3. The 60 rkm of the Nanticoke River does. The commenter suggested we may commenter bringing this to our from the Maryland State Route 313 have erroneously referred to Smith et al. attention. We believe we properly Bridge crossing near Sharptown, MD, to (2014) as Smith et al. (2015), in which referred to the Columbia Dam and where the main stem discharges at its case the citation needed to be updated, associated fish passage in the proposed mouth into the Chesapeake Bay as well or the former is missing from the list of rule. as Marshyhope Creek from its references and should be added. Comment 165: SCDNR pointed out confluence with the Nanticoke River Our Response: We appreciate the that the proposed rule erroneously and upriver to the Maryland State Route commenter bringing this discrepancy to stated the St. Stephen Powerhouse was 318 Bridge crossing near Federalsburg, our attention. While cited differently, on the Santee River, South Carolina, MD, are designated as critical habitat for both citations actually refer to the same when it is actually located on the the Chesapeake Bay DPS, and it will be document. This final rule has been Rediversion Canal. called the Nanticoke River critical updated to reflect the proper citation as Our Response: We appreciate the habitat unit. We announced in the Smith et al. (2015). As a result of this commenter bringing this discrepancy to supplementary document for the

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proposed rule that we did not have 9. We have included and clarified in been removed from the table. We also substrate information for the Nanticoke regulatory provisions for all five DPSs removed Irwin and Jasper counties, River and Marshyhope Creek, MD, but that manmade structures that do not Georgia, from the list because they are that a study was ongoing to obtain that provide the essential PBFs are not not affected by any critical habitat unit. information. We received the included in critical habitat. 16. The description of PBF number 1 information through public comment Based on the comments received for initially referred to ‘‘suitable hard from the MD DNR. Based on the new the proposed rule, Critical Habitat for bottom substrate (e.g., rock, cobble, information and existing information the Endangered Carolina and South gravel, limestone, boulder, etc.) in low discussed in the proposed rule related Atlantic DPSs of Atlantic Sturgeon (81 salinity waters (i.e., 0.0–0.5 parts per to the presence of Atlantic surgeon in FR 36077; June 3 2016), we have made thousand [ppt] range) . . .’’ The word spawning condition at a time spawning several changes in the final rule: ‘‘suitable’’ was dropped because the would occur, we determined that 10. The boundary for the upstream term suggests there may be hard bottom portions of the Nanticoke River and extent of the Ogeechee River has been that is unsuitable for spawning, which Marshyhope Creek are essential to the moved downstream by 28 rkm, from the is not the case. conservation of the Chesapeake Bay DPS confluence of North Fork and South 17. The description of PBF number 2 and should be designated as critical Fork Ogeechee Rivers to Mayfield Mill includes three changes. Initially it said habitat. Dam; the Unit now includes 420 rkm ‘‘[t]ransitional salinity zones inclusive 4. We corrected the map for the James instead of 448 rkm. of waters with a gradual downstream River critical habitat unit. The map used 11. The boundary for the upstream gradient of 0.5–30 ppt and soft substrate in the proposed rule incorrectly placed extent of the Black River, South (e.g., sand, mud) downstream of the downriver boundary of critical Carolina, has been moved downstream spawning sites for juvenile foraging and habitat in the area of Hampton Roads. by 50 rkm from Interstate Highway 20 physiological development.’’ The phrase The textual description of the James to Interstate Highway 95; the Unit now ‘‘aquatic habitat’’ replaces the phrase River critical habitat in the proposed includes 203 rkm instead of 253 rkm. ‘‘transitional salinity zone’’ because the rule was correct. 12. The description of South Atlantic latter was redundant with ‘‘gradual 5. The table describing the states and Unit 3 has been updated to include a downstream gradient,’’ and we believe counties in which critical habitat is number of significant branches of the the revision better illustrates the river being designated has been updated. It Savannah River that we intended to be areas we intended to include. now includes Dorchester and Wicomico considered critical habitat, and were Additionally, the phrase ‘‘between the Counties on the Nanticoke River. included in the maps of the critical river mouths and spawning sites’’ 6. The description of PBF number 2 habitat unit, but were not specifically replaces ‘‘downstream of spawning includes two changes. The phrase mentioned in the regulatory text. The sites.’’ As previously written, we were ‘‘between the river mouths and unit description now includes: The concerned the public might construe spawning sites’’ replaces ‘‘downstream Back River, Middle River, Front River, ‘‘downstream of spawning sites’’ to of spawning sites.’’ As previously Little Back River, South River, included bays or sounds below rkm 0; written, we were concerned the public Steamboat River, and McCoy’s Cut. this was not our intent. We believe the might construe ‘‘downstream of 13. Carolina Unoccupied Unit 1 has change more accurately reflects the spawning sites’’ to include bays or been removed due to uncertainty boundaries of critical habitat. Finally, sounds below rkm 0; this was not our regarding whether that stretch of the the words ‘‘up to as high as’’ were intent. We believe the change more Cape Fear River contains spawning added after 0.5 and before 30 to clarify accurately reflects the boundaries of habitat that would make it essential to acceptable salinity ranges. Because the critical habitat. Additionally, the words the conservation of the species. freshwater inputs vary from year to year, ‘‘up to as high as ’’ were added after 0.5 14. We have chosen to exercise our and river to river, it is possible that and before 30 to clarify acceptable discretion under section 4(b)(2) of the during a high freshwater flow year, the salinity ranges. Because the freshwater ESA and exclude Carolina Unoccupied salinity levels within a unit may never inputs vary from year to year, and river Unit 2 and South Atlantic Unoccupied reach 30 ppt. As previously written, the to river, it is possible that during a high 1, wording suggested that the gradual freshwater flow year, the salinity levels 15. The table describing the states and downstream gradient would have to within a unit may never reach 30 ppt. counties in which critical habitat is encompass the entire 0.5–30 ppt salinity As previously written, the wording being designated has been updated. It range; this was not our intent. This suggested that the gradual downstream now includes Monroe and Wilcox change is meant to acknowledge that the gradient would have to encompass the counties on the Ocmulgee River, entire salinity range is not required. entire 0.5–30 ppt salinity range; this was Treutlen County on the Oconee River, 18. In PBF number 3, we were not our intent. This change is meant to and Warren County on the Ogeechee concerned the term ‘‘physical’’ might be acknowledge that the entire salinity River. All four counties occur in Georgia confusing to the public with regards to range is not required. and were inadvertently omitted from the the full suite of potential barriers that 7. In PBF number 3, the examples of table. Additionally, we changed the can impede sturgeon movement. As a what may constitute barriers were upstream boundary of the Black River, result, we provided additional examples expanded, and the phrase ‘‘at least 1.2 South Carolina, and the Ogeechee River, of physical barriers, including thermal m’’ replaces ‘‘≥1.2 m’’ for clarity. Georgia, and removed all three plumes, turbidity, and sound. 8. The phrase ‘‘between the river unoccupied critical habitat units 19. The phrase ‘‘between the river mouths and spawning sites’’ was entirely. As a result of these changes, mouths and spawning sites’’ replaces inserted in the language of PBF number Calhoun, Fairfield, Kershaw, Lee, ‘‘downstream of spawning sites’’ in the 4. This change clarifies the areas Lexington, New Berry, Sumter, language of PBF number 4. This change designated as critical habitat as Orangeburg, and Richland counties, clarifies the areas designated as critical described under PBF number 2. South Carolina; Columbia, Edgefield habitat as described under PBF number Additionally, for clarity of the example, and Taliaferro counties, Georgia; and 2. the phrase ‘‘6 mg/L DO or greater’’ Bladen County, North Carolina, will no 20. For the Carolina and South replaces ‘‘6 mg/L dissolved oxygen.’’ longer be affected; those counties have Atlantic DPSs, paragraph (iii) of PBF

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number 4 initially used the terms proposed rule is repeated in this final contains the features essential for the ‘‘optimal’’ and ‘‘suboptimal’’ when rule that designates critical habitat for species’ recovery. Critical habitat may discussing DO and temperature range the Gulf of Maine, New York Bight, also include unoccupied areas examples. We were concerned the use of Chesapeake Bay, Carolina, and South determined to be essential to species’ those terms may be misinterpreted as Atlantic DPSs of Atlantic sturgeon to conservation and recovery. However, establishing specific, exclusive values. show that we used the same approach section 3(5)(C) of the ESA clarifies that Because there is no single DO level or for all five DPSs. except in those circumstances temperature range that is best for Critical habitat represents the habitat determined by the Secretary, critical Atlantic sturgeon in terms of habitat that contains the PBFs that are essential habitat shall not include the entire avoidance or use, we replaced those to the conservation of the listed species geographical area which can be terms. The example now states ‘‘For and that may require special occupied by the threatened or example, 6.0 mg/L DO or greater likely management considerations or endangered species. supports juvenile rearing habitat, protection (78 FR 53058; August 28, To identify and designate critical whereas DO less than 5.0 mg/L for 2013). For example, specifying the habitat, we considered information on longer than 30 days is less likely to geographical location of critical habitat the distribution of Atlantic sturgeon, the support rearing when water temperature facilitates implementation of section major life stages, habitat requirements of is greater than 25 °C.’’ Our example 7(a)(1) of the ESA by identifying areas those life stages, and conservation language for temperature ranges has also where Federal agencies can focus their objectives that can be supported by been updated to state: ‘‘Temperatures of conservation programs and use their identifiable PBFs. In the final rule 13 to 26 °C likely support spawning authorities to further the purposes of the listing the Gulf of Maine, New York habitat.’’ ESA by carrying out programs for the Bight, and Chesapeake Bay DPSs of Additionally, an example used in conservation of listed species. Atlantic sturgeon (77 FR 5880; February paragraph (iii) of PBF number 4 Designating critical habitat also 6, 2012), destruction, modification or referenced a single value of DO that was provides a significant regulatory curtailment of habitat, overutilization, likely to support juvenile rearing habitat protection by ensuring that the Federal lack of regulatory mechanisms for (i.e., ‘‘For example, 6.0 mg/L DO for Government considers the effects of its protecting the fish, and other natural or juvenile rearing habitat . . .’’). The actions in accordance with section manmade factors (e.g., vessel strikes) modifier ‘‘or greater’’ has been added to 7(a)(2) of the ESA and avoids or were found to be the threats ‘‘6.0 mg/L DO’’ because without it, the modifies those actions that are likely to contributing to the threatened status of current language suggests only a single destroy or adversely modify critical the Gulf of Maine DPS, and the value of DO is likely to support juvenile habitat. This requirement is in addition endangered status of the New York rearing habitat, whereas anything above to the section 7 requirement that Federal Bight and Chesapeake Bay DPS. In the 6.0 mg/L would also be beneficial for agencies ensure that their actions are final rule listing the Carolina and South the species as discussed in the preamble not likely to jeopardize the continued Atlantic DPSs of Atlantic sturgeon (77 of the proposed rule. existence of ESA-listed species. Critical FR 5978; February 6, 2012), habitat 21. Seven rkms of the Cooper River, habitat requirements do not apply to curtailment and alteration, bycatch in South Carolina, are no longer being citizens engaged in activities on private commercial fisheries, and inadequacy of designated as critical habitat pursuant to land that do not involve a Federal existing regulatory mechanisms were section 4(a)(3)(B) of the ESA. Our agency. However, designating critical found to be the threats contributing to analysis determined the Joint Base habitat can help focus the efforts of the endangered status of both DPSs. The Charleston base has an INRMP that other conservation partners (e.g., State Carolina and South Atlantic DPSs were provides an applicable benefit to the and local governments, individuals and found to be at 3 percent and 6 percent species that would have been otherwise nongovernmental organizations). of their historical abundances, afforded by critical habitat, and Critical habitat is defined by section respectively, due to these threats. therefore the area of the Cooper River is 3 of the ESA as (1) the specific areas Therefore, we evaluated PBFs of the not eligible for designation as critical within the geographical area occupied marine, estuarine, and riverine habitats habitat for Atlantic sturgeon. by the species, at the time it is listed, of Atlantic sturgeon to determine what 22. We have clarified our reasoning on which are found those physical or PBFs are essential to the conservation of for determining the upstream extent of biological features (a) essential to the each DPS. each unit in the descriptions of each conservation of the species and (b) Accordingly, our step-wise approach river. which may require special management for identifying potential critical habitat considerations or protection; and (2) areas for the five Atlantic sturgeon DPSs Critical Habitat Identification and specific areas outside the geographical was to determine: The geographical area Designation area occupied by the species at the time occupied by each DPS at the time of We used the same approach to it is listed, upon a determination by the listing; the PBFs essential to the identify and designate critical habitat Secretary that such areas are essential conservation of the DPSs; whether those for the five DPSs of Atlantic sturgeon. for the conservation of the species (16 PBFs may require special management However, our approach for designating U.S.C. 1532(5)(A)). Conservation is considerations or protection; the critical habitat for the Gulf of Maine, defined in section 3 of the ESA as ‘‘to specific areas of the occupied New York Bight, and Chesapeake Bay use and the use of all methods and geographical area where these PBFs DPSs of Atlantic sturgeon was described procedures which are necessary to bring occur; and, whether any unoccupied in the supplemental information to the any endangered species or threatened areas are essential to the conservation of Impacts Analysis, whereas our approach species to the point at which the any DPS. for designating critical habitat for the measures provided pursuant to this Carolina and South Atlantic DPSs of chapter are no longer necessary’’ (16 Geographical Area Occupied by the Atlantic Sturgeon was described in the U.S.C. 1532(3)). Therefore, critical Species proposed rule (81 FR 36077; June 3, habitat includes specific areas within ‘‘Geographical area occupied by the 2016). Therefore, much of the the occupied geographical area of the species’’ in the definition of critical information in the Impacts Analysis and species at the time of listing that habitat is interpreted to mean the entire

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range of the species at the time it was defined as the features that support the Berggren, 1983; Dadswell et al., 1984; listed, inclusive of all areas they use and life-history needs of the species, Gilbert, 1989; Johnson et al., 1997; move through seasonally (81 FR 7413; including water characteristics, soil Rochard et al., 1997; Kynard et al., 2000; February 11, 2016). The marine ranges type, geological features, sites, prey, Savoy and Pacileo, 2003; Eyler et al., of the Gulf of Maine, New York Bight, vegetation, symbiotic species, or other 2004; Stein et al., 2004; Dadswell, 2006; Chesapeake Bay, Carolina, and South features. A feature may be a single Eyler, 2006; Laney et al., 2007; ASSRT, Atlantic DPSs of Atlantic sturgeon habitat characteristic, or a more 2007; Dunton et al., 2010; Erickson et extend from the Hamilton Inlet, complex combination of habitat al., 2011; Dunton et al., 2012; Oliver et Labrador, Canada, to Cape Canaveral, characteristics. Features may include al., 2013; Wirgin et al., 2015). Several Florida, USA (77 FR 5880 and 77 FR habitat characteristics that support winter congregations of Atlantic 5978; February 6, 2012). We did not ephemeral or dynamic habitat sturgeon in the marine environment are consider geographical areas within conditions. Features may also be known to occur, though the exact Canadian jurisdiction (e.g., Minas Basin, expressed in terms relating to principles location and importance of those areas Bay of Fundy), because we cannot of conservation biology, such as patch in the southeast is not known, nor designate critical habitat areas outside size, distribution distances, and whether Atlantic sturgeon are drawn to of U.S. jurisdiction (50 CFR 424.12(g)). connectivity (50 CFR 424.02). particular areas based on PBFs of the The listing rules identified the known The ability of subadults to find and habitat. While we can identify general spawning rivers for each of the Atlantic access food is necessary for continued movement patterns and behavior in the sturgeon DPSs but did not describe the survival, growth, and physiological marine environment (e.g., aggregating in-river ranges for the DPSs. The river development to the adult life stage. behavior), due to the paucity of data on ranges of each DPS consist of all areas Likewise, given that Atlantic sturgeon the DPSs’ offshore needs and specific downstream of the first obstacle to mature late and do not necessarily habitat utilization, we could not at this upstream migration (e.g., the lowest spawn annually, increased adult time identify PBFs essential to dam without fish passage for sturgeon or survival would improve the chances conservation in the marine environment significant waterfalls at the fall line) on that adult Atlantic sturgeon spawn more for any of the DPSs. each river within the range of the DPS. than once. We determined that Atlantic sturgeon use estuarine areas We identified the Gulf of Maine DPS in- facilitating increased survival of all for foraging, growth, and movement. river range as occurring in the Atlantic sturgeon life stages as well as Atlantic sturgeon subadults and adults watersheds from the Maine/Canadian successful adult reproduction, and border and extending southward to juvenile and subadult recruitment into in non-spawning condition use include all associated watersheds the adult population, would likely estuarine waters seasonally, presumably draining into the Gulf of Maine as far increase the abundance of each DPS. We for foraging opportunities, although south as Chatham, Massachusetts. We considered these conservation evidence in the form of stomach content identified the New York Bight DPS in- objectives to help us identify the collection and analysis is limited (Savoy river range as occurring in the physical or biological features of the and Pacileo, 2003; Dzaugis, 2013). We watersheds that drain into coastal critical habitat designations when we considered all studies that have waters, including Long Island Sound, reviewed the literature describing the collected Atlantic sturgeon stomach the New York Bight, and Delaware Bay, various types of habitat used by the Gulf contents. All of the prey species from Chatham, Massachusetts to the of Maine, New York Bight, Chesapeake identified are indicative of benthic Delaware-Maryland border on Fenwick Bay, Carolina, and South Atlantic DPSs foraging, but different types of prey Island. We identified the Chesapeake of Atlantic sturgeon for the various life were consumed and different substrates Bay DPS in-river range as occurring in functions. were identified for the areas where the watersheds that drain into the Within the area occupied by Atlantic Atlantic sturgeon were foraging Chesapeake Bay and into coastal waters sturgeon, we considered the various (Bigelow and Schroeder, 1953; Johnson from the Delaware-Maryland border on types of habitat used by the DPSs for et al., 1997; ASSRT, 2007; Guilbard et Fenwick Island to Cape Henry, Virginia. various life functions. Atlantic sturgeon al., 2007; Savoy, 2007; Dzaugis, 2013; We identified the Carolina DPS in-river spend the majority of their adult lives in McLean et al., 2013). Adding to our range as occurring in the watersheds offshore marine waters. They are known uncertainty of the PBF(s) that support (including all the rivers and tributaries) to travel extensively up and down the successful foraging for growth and from Albemarle Sound, North Carolina, East Coast. As summarized in a number survival of subadults and adults, to Charleston Harbor, South Carolina. of summary documents, including the Atlantic sturgeon move between We identified the South Atlantic DPS Atlantic Sturgeon Status Review estuarine environments in the spring in-river range as occurring in the (ASSRT, 2007) and the ASMFC’s review through fall and can occur in estuarine watersheds (including all the rivers and of Atlantic coast diadromous fish environments during the winter as well tributaries) from the Ashepoo- habitat (Green et al., 2009), Atlantic (Collins et al., 2000; Savoy and Pacileo, Combahee-Edisto (ACE) Basin in South sturgeon are benthic foragers and prey 2003; Simpson, 2008; Balazik et al., Carolina to the St. Johns River, Florida. upon a variety of species in marine and 2012). Subadult Atlantic sturgeon estuarine environments (Bigelow and spawned in one riverine system may use Physical or Biological Features Schroeder, 1953; Scott and Crossman, multiple estuaries for foraging and Essential for Conservation That May 1973; Johnson et al., 1997; Guilbard et growth, including those not directly Require Special Management al., 2007; Savoy, 2007; Dzaugis, 2013; connected to their natal river. The Considerations or Protection McLean et al., 2013). In the ocean, benthic invertebrates that comprise the Within the geographical area Atlantic sturgeon typically occur in diet of Atlantic sturgeon are found in occupied by the species, critical habitat waters less than 50 m deep, travel long soft substrates that are common and consists of specific areas on which are distances, exhibit seasonal coastal widespread in most estuaries. Limited found those PBFs essential to the movements, and aggregate in estuarine data are available to differentiate areas conservation of the species and that may and ocean waters at certain times of the of preferred prey items or higher prey require special management year (Vladykov and Greeley, 1963; abundance within or across estuaries. considerations or protection. PBFs are Holland and Yelverton 1973; Dovel and Due to the paucity of data on specific

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habitat or resource utilization, we could movement before encountering saline difficult to identify a range of water not at this time identify any specific water. During their downstream velocity necessary for the conservation PBFs essential for the conservation of movement, it is important for of the species. However, we do know any of the DPSs that support adult and developing fish to forage in areas of soft that water flow must be continuous. subadult foraging in estuarine or marine substrate and to encounter transitional Adult Atlantic sturgeon must be able environments. salinity zones to allow physiological to safely and efficiently move from Atlantic sturgeon spawning behavior adaptations to higher salinity waters. downstream areas into upstream and early life history have been Minimum water depths for Atlantic spawning habitats in order to extensively studied and are fairly well sturgeon spawning are necessary to: (1) successfully spawn. In addition, larvae understood, though the exact location of Allow adult fish to access spawning and juvenile Atlantic sturgeon must be spawning sites on many rivers substrate, (2) adequately hydrate and able to safely and efficiently travel from (particularly in the Southeast) is not aerate newly deposited eggs, and (3) the upstream spawning areas known or can change from time to time facilitate successful development and downstream to nursery and foraging as water depth and substrate availability downstream movement of newly habitat. Therefore, an essential PBF for changes. However, there is substantial spawned Atlantic sturgeon. However, Atlantic sturgeon spawning is information in the scientific literature water depth at these important unobstructed migratory pathways for indicating the physical characteristics of spawning areas in the Southeast can be safe movement of adults to and from Atlantic sturgeon spawning and early dynamic and portions of rivers may be upstream spawning areas as well as safe life history habitat. Therefore, to dry or have little water at times due to movement for the larvae and juveniles evaluate potential critical habitat, we natural seasonal river fluctuations, moving downstream. An unobstructed focused on identifying the PBFs that temporary drought conditions, and/or migratory pathway means an support Atlantic sturgeon reproduction regulation by manmade structures such unobstructed river or a dammed river and survival of early life stages. as dams; thus, these sites require that still allows for passage. The scientific literature indicates that protection to provide consistent services Water quality can be a critically Atlantic sturgeon spawning occurs well for sturgeon. The scientific literature limiting factor to Atlantic sturgeon in upstream, at or near the fall line of indicates that Atlantic sturgeon spawn the shallow, warm, poorly oxygenated rivers, over hard substrate consisting of in water depths from 3–27 m (9.8–88.6 rivers of the southeast United States. rock, pebbles, gravel, cobble, limestone, ft) (Borodin, 1925; Leland, 1968; Scott Conditions in these river systems can or boulders (Gilbert, 1989; Smith and and Crossman, 1973; Crance, 1987; Bain change rapidly, particularly in rivers Clugston, 1997). Hard substrate is et al., 2000). However, much of this managed for hydropower production, required so that highly adhesive information is derived from studies of and conditions can quickly become Atlantic sturgeon eggs have a surface to Atlantic sturgeon in northern United suboptimal or lethal for sturgeon. We adhere to during their initial States and Canadian river systems. considered essential water quality PBFs development and young fry can use the Atlantic sturgeon in the Southeast are that support movement and spawning of interstitial spaces between rocks, likely spawning in much shallower adults and growth and development of pebbles, cobble, etc., to hide from water depths based on repeated juvenile Atlantic sturgeon. The predators during downstream observations by biologists of sturgeon distribution of Atlantic sturgeon movement and maturation (Gilbert, with lacerations on their undersides juveniles in the natal estuary is a 1989; Smith and Clugston, 1997). from moving into extremely shallow function of physiological development Very low salinity (i.e., 0.0–0.5 ppt) is water to spawn on hard substrate. Based and habitat selection based on water another important feature of Atlantic on the available information, and the quality factors of temperature, salinity, sturgeon spawning habitat. Exposure to body depth and spawning behavior of and DO, which are inter-related even low levels of salinity can kill Atlantic sturgeon, water depths of at environmental variables. In laboratory Atlantic sturgeon during their first few least 1.2 m (4 ft) are deep enough to studies with salinities of 8 to 15 ppt and weeks of life; thus, their downstream accommodate Atlantic sturgeon temperatures of 12 and 20 °C, juveniles movement is limited until they can spawning. less than a year old had reduced growth endure brackish waters (Bain et al., We considered fluid dynamic features at 40 percent DO saturation, grew best 2000). Shortnose sturgeon tend to as another potential essential feature of at 70 percent DO saturation, and spawn 200–300 km upriver, preventing Atlantic sturgeon spawning critical selected conditions that supported the youngest life stages from salt habitat. The scientific literature growth (Niklitschek and Secor, 2009 I; exposure too early in their development provides information on the importance Niklitschek and Secor, 2009 II). Results (Parker and Kynard, 2005; Kynard, of appropriate water velocity within obtained for age-1 juveniles (i.e., greater 1997). Parker and Kynard (2005) also Atlantic sturgeon spawning habitat and than 1 year old and less than 2 years noted that long larval/early juvenile provides optimal flows for some rivers. old) indicated that they can tolerate downstream movement is common in Atlantic sturgeon spawn directly on top salinities of 33 ppt (i.e., a salinity level both shortnose sturgeon from the of gravel in fast flowing sections often associated with seawater), but grow Savannah River and Gulf sturgeon (a containing eddies or other current faster in lower salinity waters sub-species of Atlantic sturgeon), and breaks. Eddies promote position holding (Niklitschek and Secor, 2009 I; Allen et that this may be a widespread between spawning individuals, trap al., 2014). The best growth for both age adaptation of sturgeon inhabiting river gametes facilitating fertilization, and groups occurred at DO concentrations systems in the southern United States. diminish the probability of egg greater than 6.5 mg/L. While specific Due to their similar life history, Atlantic dislocation by currents—facilitating DO concentrations at temperatures sturgeon most likely adapted a similar immediate adhesion of eggs to the gravel considered stressful for Atlantic spawning strategy. Therefore, it is substrate (Sulak and Clugston, 1999). sturgeon are not available, essential that the spawning area has low However, velocity data are lacking for instantaneous minimum concentrations salinity, and that the spawning location many rivers, and where data are of 4.3 mg/L protect survival of shortnose is far enough upstream to allow newly- available, the wide fluctuations in sturgeon at temperatures greater than 29 spawned Atlantic sturgeon to develop velocity rates on a daily, monthly, °C (EPA, 2003). Secor and Niklitschek and mature during their downstream seasonal, and annual basis make it (2001) report shortnose sturgeon are

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more tolerant of higher temperatures conservation. As we have discussed, and refuge, growth, and development of than Atlantic sturgeon. This is why these PBFs may be ephemeral or vary early life stages; Campbell and Goodman (2003) spatially across time. Thus, areas • Aquatic habitat inclusive of waters considered 29 °C a stressful temperature designated as critical habitat are not with a gradual downstream gradient of for shortnose sturgeon, while Secor and required to have the indicated values at 0.5 up to as high as 30 ppt and soft Gunderson (1998) report Atlantic all times and within all parts of the area: substrate (e.g., sand, mud) between the sturgeon becoming stressed at a lower • Hard bottom substrate (e.g., rock, river mouths and spawning sites for threshold of 26 °C. cobble, gravel, limestone, boulder, etc.) juvenile foraging and physiological In summary, within the area occupied in low salinity waters (i.e., 0.0–0.5 ppt development; by Atlantic sturgeon, we considered the range) for settlement of fertilized eggs, • Water of appropriate depth and various types of habitat used by the refuge, growth, and development of absent physical barriers to passage (e.g., species for various life functions. We early life stages; locks, dams, thermal plumes, turbidity, determined that Atlantic sturgeon spend • Aquatic habitat with a gradual sound, reservoirs, gear, etc.) between the the majority of their adult lives in downstream salinity gradient of 0.5 up river mouth and spawning sites offshore marine waters where they are to as high as 30 ppt and soft substrate necessary to support: (1) Unimpeded known to travel extensively up and (e.g., sand, mud) between the river movement of adults to and from down the East Coast. However, we mouth and spawning sites for juvenile spawning sites; (2) seasonal and could not identify any PBFs in marine foraging and physiological physiologically dependent movement of waters essential to the conservation of development; juvenile Atlantic sturgeon to the species. We also determined • Water of appropriate depth and appropriate salinity zones within the Atlantic sturgeon subadults and adults absent physical barriers to passage (e.g., river estuary; and (3) staging, resting, or use estuarine areas for foraging, growth, locks, dams, thermal plumes, turbidity, holding of subadults and spawning and movement. The ability of subadults sound, reservoirs, gear, etc.) between the condition adults. Water depths in main to find and access food is necessary for river mouth and spawning sites river channels must also be deep continued survival, growth, and necessary to support: Unimpeded enough (at least 1.2 m) to ensure physiological development to the adult movements of adults to and from continuous flow in the main channel at life stage. Likewise, given that Atlantic spawning sites; seasonal and all times when any sturgeon life stage sturgeon mature late and do not physiologically dependent movement of would be in the river. necessarily spawn annually, increased juvenile Atlantic sturgeon to • Water quality conditions, especially adult survival would improve the appropriate salinity zones within the in the bottom meter of the water chances that adult Atlantic sturgeon river estuary, and; staging, resting, or column, between the river mouths and spawn more than once. Therefore, we holding of subadults or Spawning spawning sites with temperature and determined a conservation objective for condition adults. Water depths in main oxygen values that support: (1) the Gulf of Maine, New York Bight, river channels must also be deep Spawning; (2) annual and inter-annual Chesapeake Bay, Carolina, and South enough (e.g., at least 1.2 m) to ensure adult, subadult, larval, and juvenile Atlantic DPSs is to increase the continuous flow in the main channel at survival; and (3) larval, juvenile, and abundance of each DPS by facilitating all times when any sturgeon life stage subadult growth, development, and increased survival of all life stages. After would be in the river, and recruitment. Appropriate temperature examining the information available on • Water, between the river mouth and and oxygen values will vary spawning and early life history behavior spawning sites, especially in the bottom interdependently, and depending on and habitat, we also concluded that meter of the water column, with the salinity in a particular habitat. For facilitating adult reproduction and temperature, salinity, and oxygen values example, 6.0 mg/L DO or greater likely juvenile and subadult recruitment into that, combined, support: Spawning; supports juvenile rearing habitat, the adult population are other annual and interannual adult, subadult, whereas DO less than 5.0 mg/L for conservation objectives for the Gulf of larval, and juvenile survival; and larval, longer than 30 days is less likely to Maine, New York Bight, Chesapeake juvenile, and subadult growth, support rearing when water temperature Bay, Carolina, and South Atlantic DPSs development, and recruitment (e.g., 13 is greater than 25 °C. In temperatures of Atlantic sturgeon. We could not °C to 26 °C for spawning habitat and no greater than 26 °C, DO greater than 4.3 identify any specific PBFs essential to more than 30 °C for juvenile rearing mg/L is needed to protect survival and the conservation of the species that habitat, and 6 mg/L or greater DO for growth. Temperatures of 13 to 26 °C support adult and subadult foraging in juvenile rearing habitat). likely support spawning habitat. estuarine or marine environments. We Given the biological needs and Specific Areas Containing the Essential determined that protecting spawning tolerances, and environmental Features Within the Geographical Area areas, juvenile development habitat, the conditions for Atlantic sturgeon in Occupied by the Species in-river habitats that allow adults to rivers of the Southeast as summarized reach the spawning areas and newly previously, and the habitat-based The definition of critical habitat spawned sturgeon to make a safe conservation objectives, we identified instructs us to identify specific areas on downstream migration, and water the following PBFs essential to Atlantic which the PBFs essential to the species’ quality to support all life stages, will sturgeon conservation. As we have conservation are found. Our regulations facilitate meeting the conservation discussed, these PBFs may be state that critical habitat will be defined objectives discussed above. ephemeral or vary spatially across time. by specific limits using reference points Given the biological needs and Thus, areas designated as critical habitat and lines on standard topographic maps tolerances, and environmental are not required to have the indicated of the area, and referencing each area by conditions for Gulf of Maine, New York values at all times and within all parts the state, county, or other local Bight, and Chesapeake Bay DPSs of of the area: governmental unit in which it is located Atlantic sturgeon as summarized • Hard bottom substrate (e.g., rock, (50 CFR 424.12(c)). To identify where previously, and the habitat-based cobble, gravel, limestone, boulder, etc.) the PBF(s) occur within areas occupied conservation objectives, we identified in low salinity waters (i.e., 0.0–0.5 ppt by Atlantic sturgeon, we reviewed the the following PBFs essential to their range) for settlement of fertilized eggs best scientific information available,

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including the 2007 Atlantic sturgeon substrate [gravel, cobble, etc.]), we Carolina and South Atlantic DPSs of status review (ASSRT, 2007), the ESA considered that the essential PBF is Atlantic sturgeon do not appear to listing rules (77 FR 5880 and 77 FR present in the area. support spawning and juvenile 5914; February 6, 2012), scientific For Southeast rivers, when data were recruitment or to contain suitable research reports, information and data not available for certain rivers or habitat features to support spawning. gathered during the peer-review portions of occupied rivers, we used our These rivers are the Chowan and New process, and a database developed by general knowledge of Atlantic sturgeon Rivers in North Carolina; the the U.S. Geological Survey for mapping spawning and applied river-specific Waccamaw (above its confluence with environmental parameters within East information to determine the location of Bull Creek which links it to the Pee Dee Coast rivers to identify sturgeon habitat. PBFs essential to spawning. We River), Sampit, Ashley, Ashepoo, and We also considered information on the considered salinity tolerance during the Broad-Coosawhatchie Rivers in South location of sturgeon spawning activity earliest life stages to determine Carolina; and the St. Johns River in from scientific reports, as active appropriate habitat for larvae to develop Florida. We have no information, spawning in an area would indicate that as they mature. Available telemetry data current or historical, of Atlantic the PBF(s) necessary for spawning are suggest that most Atlantic sturgeon sturgeon using the Chowan and New likely present. As noted previously, spawning activity in the Savannah and Rivers in North Carolina. Recent while we used the same approach for Altamaha Rivers starts around rkm 100 telemetry work by Post et al. (2014) designating critical habitat for the five (Post et al., 2014). Similar evidence indicates that Atlantic sturgeon do not DPSs, the Impacts Analysis and from the Edisto, Neuse, and Tar-Pamlico use the Sampit, Ashley, Ashepoo, and Biological Source Document for the Gulf Rivers indicates spawning activity starts Broad-Coosawhatchie Rivers in South of Maine, New York Bight, and around rkm 80. Peer review comments Carolina. These rivers are short, coastal Chesapeake Bay DPSs describes that on the Draft Economic and Biological plains rivers that most likely do not approach for those DPSs and therefore Information to Inform Atlantic Sturgeon contain suitable habitat for Atlantic is not repeated here. Because the critical Critical Habitat Designation (for the sturgeon. Post et al. (2014) also found habitat designation approach and Carolina and Southeast DPSs) indicated Atlantic sturgeon only use the portion of information on specific rivers within the that Atlantic sturgeon spawn below the the Waccamaw River downstream of range of the Carolina and South Atlantic fall line, unlike shortnose sturgeon that Bull Creek. Due to manmade structures DPSs was described in the proposed may spawn well above the fall line. and alterations, spawning areas in the rule, and not in a separate document, it To encompass all areas important for St. Johns River are not accessible and is provided here for reference. Atlantic sturgeon spawning, therefore do not support a reproducing Information on documented spawning reproduction, and recruitment within population. For these reasons, we are in specific areas in the Southeast is rare, rivers where spawning is believed to not designating these coastal rivers, or but some does exist. For example, large occur or may occur, we identified portions of the rivers, as critical habitat. sections of the Altamaha River have specific areas of critical habitat from the For rivers we are proposing to designate been found to support Atlantic sturgeon mouth (rkm 0) of each spawning river to as critical habitat, we have historical or spawning activities for many years the upstream extent of the spawning current information that they support (Peterson et al., 2006; Peterson et al., habitat. For rivers that are not dammed spawning and juvenile recruitment as 2008). We reviewed reports from a and do not reach the fall line, an easily described below. NMFS-funded multi-year, multi-state identifiable landmark (e.g., a dam or a research project on movement and bridge) was located to serve as the Roanoke River migration of Atlantic sturgeon (Species upstream boundary of the units. The Roanoke River was identified as Recovery Grant number Similarly, the ordinary high water mark a spawning river for Atlantic sturgeon NA10NMF4720036, Post et al., 2014). In on the banks of the rivers encompasses based on the capture of juveniles, the these reports, researchers determined all areas that are expected to contain collection of eggs, and the tracking which portions of Southeastern rivers one or more of the PBFs and provides location of adults. Further, there was support spawning activities by looking an easily identifiable lateral boundary information indicating the historical use at the upriver extent of sturgeon for the units. of the Roanoke River by Atlantic movements during spawning season. To identify specific habitats used by sturgeon. There are large areas of most rivers an Atlantic sturgeon DPS in occupied Atlantic sturgeon were historically where data are still lacking. The rivers, we considered the best scientific abundant in the Roanoke River and available data also may represent a information available that described: (1) Albemarle Sound, but declined snapshot in time, while the exact Capture location and/or tracking dramatically in response to intense location of a habitat feature may change locations of Atlantic sturgeon identified fishing effort in the late 1800s over time (e.g., water depth fluctuates to its DPS by genetic analysis; (2) (Armstrong and Hightower, 2002). There seasonally, as well as annually, and capture location and/or tracking is still a population present in the even hard substrate may shift position). locations of adult Atlantic sturgeon Albemarle Sound and Roanoke River For example, some data indicate a identified to its DPS based on the (Armstrong and Hightower, 2002; Smith change in substrate type within a given presence of a tag that was applied when et al., 2015). DNA analyses of juveniles location from year to year (e.g., from the sturgeon was captured as a juvenile captured in Albemarle Sound indicate sand to gravel). It is not always clear in its natal estuary; (3) capture or that these fish are genetically distinct whether such changes are due to an detection location of adults in spawning from Atlantic sturgeon collected in actual shift in substrate sediments or if condition (i.e., extruding eggs or milt) or other systems (Wirgin et al., 2000; King the substrate sample was collected in a post-spawning condition (e.g., concave et al., 2001). slightly different location between abdomen for females); (4) capture or Historical records and recent research samplings. Although the habitat features detection of YOY and other juvenile age provide accounts of Atlantic sturgeon may vary even at the same location, if classes; and (5) collection of eggs or spawning within the fall zone (rkm 204– any of the available data regarding a larvae. 242) of the Roanoke River (Yarrow, particular feature fell within the suitable Several large coastal rivers within the 1874; Worth, 1904; Armstrong and range (e.g., salinity of 0–0.5 ppt or hard geographical area occupied by the Hightower, 2002; Smith et al., 2015).

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Atlantic sturgeon remains from based on the evidence of spawning and could be classified as intermediate archaeological sites on the Roanoke the capture of juveniles. The Tar- juveniles. In 2016, three Atlantic River have been found as far upstream Pamlico River, one of two major sturgeon were captured ranging in size as rkm 261, approximately 19 miles tributaries to Pamlico Sound, is from 464–656 mm FL; none could be (30.5 km) above the upper end of the fall dammed. However, all riverine classified as early juveniles and two zone (VanDerwarker, 2001; Armstrong spawning habitat is accessible to could be classified as intermediate and Hightower, 2002); however, that Atlantic sturgeon in the Tar-Pamlico juveniles (M. Loeffler, NCDMF, to A. was prior to the construction of dams River, because the lower-most dam, the Herndon, NMFS, pers. comm. March now located throughout the river. The Rocky Mount Mill Pond Dam (rkm 199), 2017). From 2002–2003, four Atlantic farthest downstream dam, the Roanoke is located at the fall line. sturgeon (561–992 mm FL) were Rapids Dam, is located near the fall line Evidence of spawning was reported captured by North Carolina State at rkm 221. No fish passage exists at this by Hoff (1980), after the capture of very University personnel sampling in the dam, so all Atlantic sturgeon are young juveniles in the Tar River. Two Neuse River (Oakley, 2003). Similarly, restricted to the lower 17 rkm of fall juveniles were observed dead on the the NCDMF Observer Program zone habitat, which extends from the bank of Banjo Creek, a tributary to the documented the capture of 12 Atlantic Roanoke Rapids Dam to Weldon, North Pamlico System (ASSRT, 2007). A sturgeon in the Pamlico Sound from Carolina at rkm 204 (Armstrong and sampling program similar to the April 2004 to December 2005; none of Hightower, 2002; Smith et al., 2015). Albemarle Sound IGNS collected 14 these were YOY or spawning adults, Historical and current data indicate Atlantic sturgeon in 2004. These fish averaging approximately 600 mm TL that spawning occurs in the Roanoke ranged in size from 460 to 802 mm FL (ASSRT, 2007). Three additional River, where both adults and small and averaged 575 mm FL. The NCDMF specimens of YOY captured in the juveniles have been captured. Since Observer Program reported the capture Neuse River in 1974 were found in a 1990, the NCDMF has conducted the of 12 Atlantic sturgeon in the Pamlico collection at North Carolina State Albemarle Sound Independent Gill Net Sound from April 2004 to December University (J. Hightower, NCSU, to A. Survey (IGNS). From 1990 to 2006, 842 2005; these fish averaged 600 mm TL Herndon, NMFS, pers. comm. March sturgeon were captured ranging from (ASSRT, 2007). 2017). An additional record of a YOY 15.3 to 100 cm fork length (FL), Neuse River captured in the Neuse River in 1974, averaging 47.2 cm FL. One hundred and was provided by the North Carolina thirty-three (16 percent) of the 842 The Neuse River was identified as a Museum of Natural Sciences (G. Hogue, sturgeon captured were classified as spawning river for Atlantic sturgeon NCMNS, to A. Herndon, NMFS, pers. YOY (41 cm total length (TL), 35 cm based on the capture of small juveniles. comm. March 2017). Because sturgeon FL); the others were subadults (ASSRT, Bain (1997) reports that ‘‘early cannot pass above the Milburnie Dam, 2007). A recent study by Smith et al. juveniles’’ (20–440 mm FL) remain in we believe that dam is likely the farthest (2015), using acoustic telemetry data their natal rivers until they become upstream extent of spawning habitat and egg collection during the fall of ‘‘intermediate juveniles’’ (450–630 mm accessible to Atlantic sturgeon. 2013, identified a spawning location FL) and begin gradually emigrating from near Weldon, North Carolina (rkm 204). the river during periods of rapid growth. Cape Fear River System The location contains the first shoals Hoff (1980) reports sturgeon studies in The Cape Fear and Northeast Cape encountered by Atlantic sturgeon as the Neuse and Pamlico Rivers and Fear Rivers were identified as spawning they move upstream to spawn (Smith et Pamlico Sound captured low numbers rivers for Atlantic sturgeon based on the al., 2015). The channel in this area is of small (400–600 mm TL) sturgeon. The capture of juveniles, the capture of approximately 100 m wide and the NCDMF Observer Program and an adults in spawning condition, and the substrate is primarily bedrock, along independent gill net survey report the tracking location of adults, and with fine gravel and coarse sediments in captures of Atlantic sturgeon in the information indicating the historical use low-flow areas (Smith et al., 2015). Neuse River were low during the period by Atlantic sturgeon. In the late 1800s, During the study, 38 eggs were collected 2001–2003, ranging from zero to one the Cape Fear River had the largest during 21 days that spawning pads were fish/year. However, in 2004, this survey landings of sturgeon in the southeastern deployed (Smith et al., 2015). collected 5 Atlantic sturgeon ranging United States (Moser and Ross, 1995). A scientific survey also shows the from 470–802 mm FL; none could be While species identification (i.e., presence of adult Atlantic sturgeon in classified as early juveniles and 3 could shortnose or Atlantic sturgeon) is not the Roanoke River. Using side-scan be classified as intermediate juveniles. possible, these landings suggest large sonar, Flowers and Hightower (2015) In 2005, 23 Atlantic sturgeon were populations of both species. The Cape conducted surveys near the freshwater- captured ranging from 365–650 mm FL; Fear River is tidally influenced by saltwater interface with repeated 9 could be classified as early juveniles diurnal tides up to at least rkm 96, and surveys performed over 3 days. The and 14 could be classified as is also dredged extensively to maintain surveys detected 4 Atlantic sturgeon intermediate juveniles. From 2006– a depth of 12 m up to rkm 49 and then greater than 1 m TL. Based on these 2013, another nine Atlantic sturgeon a depth of 4 m up to Lock and Dam #1. detections, an abundance estimate for were captured ranging in size from 480– There are numerous deep holes (>10 m) riverine Atlantic sturgeon of 10.9 (95 2,300 mm FL; the most caught in any throughout this extent. percent confidence interval 3–36) fish given year during that period was four A gill net survey for adult shortnose greater than 1 m was calculated for the (2004). Of those nine animals, none and juvenile Atlantic sturgeon was Roanoke River. This estimate does not would be classified as early juveniles conducted in the Cape Fear River account for fish less than 1 m TL, but four could be classified as drainage from 1990 to 1992, and occurring in riverine reaches not intermediate juveniles. One 720 mm TL replicated from 1997 to 2005. Each surveyed, or in marine waters. Atlantic sturgeon was captured in 2014. sampling period included two overnight Seventeen Atlantic sturgeon were sets. The 1990–1992 survey captured Tar-Pamlico River caught in 2015 ranging in size from 100 Atlantic sturgeon below Lock and The Tar-Pamlico River was identified 365–1,435 mm FL; four could be Dam #1 (rkm 95). In 1997, 16 Atlantic as a spawning river for Atlantic sturgeon classified as early juveniles and eight sturgeon were captured below Lock and

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Dam #1, an additional 60 Atlantic dammed and does not extend all the receiver stations were not at the fall sturgeon were caught in the Brunswick way to the fall line. For these reasons line, they were very far upriver, and it (a tributary of the Cape Fear River), and we used an easily identifiable landmark is likely that the only reason this fish 12 were caught in the Northeast Cape (e.g., upstream side of Rones Chapel traveled so far upriver was to spawn (B. Fear River (Moser et al. 1998). Road Bridge) to serve as the upstream Post, SCDNR, pers. comm. to J. Rueter, Additionally, Ross et al. (1988 in Moser boundary. NMFS PRD, July 9, 2015). Juveniles and Ross, 1995) reported the capture of were located as far upstream as rkm Pee Dee River System a gravid female in the Cape Fear River. 42.1, suggesting the Black River is also Recent telemetry work conducted in The Pee Dee River System was an important foraging/refuge habitat. the Cape Fear and Northeast Cape Fear identified as providing spawning habitat The main stem of the Black River Rivers showed that subadult Atlantic used by Atlantic sturgeon based on the becomes braided before reaching the fall sturgeon movement and distribution capture of juveniles, the capture of line and is no longer identifiable above followed seasonal patterns (Loeffler and adults in spawning condition, and the Interstate Highway 95. Thus, setting the Collier in Post et al., 2014). During tracking location of adults. Captures of boundary at that highway includes the summer months, Atlantic sturgeon age-1 juveniles from the Waccamaw upstream extent of spawning habitat distribution was shifted upriver with River during the early 1980s suggest that within the unit. limited large-scale movements; during a reproducing population of Atlantic the coldest time of year, subadult fish sturgeon existed in that river, although Santee and Cooper Rivers were absent from the rivers and had the fish could have been from the The Santee-Cooper River system was migrated to the estuary or ocean nearby Pee Dee River (Collins and Smith identified as a spawning river system for (Loeffler and Collier in Post et al., 2014). 1997). Additionally, telemetry data from Atlantic sturgeon based on the capture The high inter-annual return rates of tagged adult Atlantic sturgeon appear to of YOY. The Santee River basin is the tagged fish to the system demonstrate show individuals making spawning second largest watershed on the Atlantic that Atlantic sturgeon have fidelity to runs into the Pee Dee River by traveling Coast of the United States; however, these rivers; this implies that the Cape up the Waccamaw River, through Bull with the completion of Wilson Dam in Fear River system may be the natal Creek, and into the Pee Dee River. (B. the 1940s, upstream fish migrations system for these fish (Loeffler and Post, SCDNR, pers. comm. to J. Rueter, were restricted to the lowermost 145 Collier in Post et al., 2014). NMFS, July 9, 2015). rkms of the Santee River. Following Further evidence of the importance of Based on preliminary analyses of construction of the Wilson and this system is demonstrated by the sturgeon detections during their study, Pinopolis Dams, the connectivity movement patterns of one of five adult Post et al. (2014) concluded the Pee Dee between the coastal plain and piedmont Atlantic sturgeon tagged during the River system appears to be used by was lost. In the 1980s, a fish passage study that has shown site fidelity. This Atlantic sturgeon for summer/winter facility at the St. Stephen powerhouse, individual fish was in ripe and running seasonal habitat as well as for spawning. designed to pass American shad and condition at the time of tagging. This From 2011 to 2014, 41 sturgeon were blueback herring, was completed that fish subsequently returned to the Cape detected in upstream areas of the Pee attempted to restore connectivity Fear River system each of the following Dee River that were considered to be throughout the system. The passage years (2013 and 2014) and has been spawning areas. All 10 Atlantic sturgeon facility has not been successful for detected farther upstream in both the that were originally implanted with Atlantic sturgeon (Post et al., 2014). Cape Fear (rkm 95) and Northeast Cape transmitters in the Pee Dee System were However, in 2007 an Atlantic sturgeon Fear (rkm 132) rivers than any tagged later detected displaying upstream and entered the fish passage facility at the subadult fish during this study. This downstream movement. Distinct fishway to the lift, presumably in an fish did not use the fish passage rock movement patterns were evident for attempt to migrate upstream to spawn, arch ramp at Lock and Dam #1; these fish as similar patterns were and was subsequently physically however, at the time when it was observed each year of the study period. removed and then released downstream present at the base of the dam, the rock Two of the 10 fish originally tagged in into the Santee River (A. Crosby, arch ramp structure was only partially the Pee Dee System and many tagged SCDNR, pers. comm.). complete. In all years of the study this fish from other systems made spawning Historically, the Cooper River was a fish had movement patterns that are runs in the Pee Dee River (Post et al., small coastal plain river that fed into consistent with spawning behavior, and 2014). The fall line is located Charleston Harbor. The completion of this demonstrates that both the approximately 35 rkm below Blewett the Santee Cooper hydropower project Northeast Cape Fear and Cape Fear Falls Dam, which is impassable to in the 1940s dramatically changed river Rivers may be important spawning sturgeon. Thus, we believe the dam discharge in the Cooper River. From the areas. While telemetry data have not represents the upstream extent of 1940s into the 1980s, nearly all river indicated Atlantic sturgeon presence spawning habitat accessible to Atlantic discharge of the Santee River was above Lock and Dam #1, we believe the sturgeon on the Pee Dee River system. diverted through the Santee Cooper fish passage present at the dam is project, run through the hydroelectric successful or that fish pass through the Black River, South Carolina units in Pinopolis Dam, and discharged lock. We base this determination on The Black River was identified as a down the Tailrace Canal and into the reports of Atlantic sturgeon above Lock spawning river for Atlantic sturgeon Cooper River. In the 1980s, the and Dam #1 (F. Rohde, NMFS, pers. based on the capture of juveniles and Rediversion Project redirected part of comm. to J. Rueter, NMFS, July 14, the tracking location of adults. During a the system’s discharge back to the 2015). Because sturgeon cannot telemetry study from 2011 to 2014, Post Santee River; however, a significant currently pass above the Lock and Dam et al. (2014) detected 10 juveniles and discharge of freshwater still flows into #2, we believe that dam is likely the 10 adults using the Black River. An the Cooper River. The Cooper River farthest upstream extent of spawning adult male was detected at the last provides the dominant freshwater input habitat currently accessible to Atlantic receiver station in the river one year for the Charleston Harbor and provides sturgeon in the occupied unit of the (rkm 70.4) and the next to last receiver 77 rkm of riverine habitat (Post et al., river. The Northeast Cape River is not station in a subsequent year. While the 2014).

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The capture of 151 subadults, between piedmont and coastal plain and Spawning adults (39 in 1998) and YOY including age-1 fish, from 1970–1995 is unimpeded for its entire length. It is (1,331 from 1994–2001) have been indicates a population exists in the the longest free flowing blackwater river captured in the ACE basin (Collins and Santee River (Collins and Smith, 1997). in South Carolina. During excessive Smith, 1997; ASSRT, 2007). One Four juvenile Atlantic sturgeon, rainy seasons it will inundate lowlands running ripe male was captured in the including YOY, were captured in the and swamps, and the flow basin Combahee River during a sampling winter of 2003, one in the Santee and increases to a mile (1.6 km) wide or program in 1997 (ASSRT, 2007). Seven three in the Cooper Rivers (McCord, more. The Edisto River was identified as Atlantic sturgeon were captured and 2004). These data support the existence a spawning river for Atlantic sturgeon five were tagged during a 2010 and 2011 of a spawning population, but SCDNR based on the capture of an adult in telemetry study (Post et al., 2014). biologists working in the Santee-Cooper spawning condition and capture Atlantic sturgeon that were tagged in the system believe the smaller fish are location and tracking of adults. Combahee River were absent from the pushed into the system from the Pee Spawning adults (39 in 1998) and system for the majority of the study Dee and/or Waccamaw Rivers during YOY (1,331 from 1994–2001) have been period. An Atlantic sturgeon that was flooding conditions (McCord, 2004). captured in the ACE basin (Collins and tagged in June of 2011 left the system in This hypothesis is based on the lack of Smith, 1997; ASSRT, 2007). One gravid the fall of 2011, returned in July 2012 access to suitable spawning habitat due female was captured in the Edisto River and left the system again in the fall of to the locations of the Wilson Dam on during sampling efforts in 1997 (ASSRT, 2012. This fish was detected the farthest the Santee River, the St. Stephen 2007). Seventy-six Atlantic sturgeon upstream of any tagged Atlantic Powerhouse on the Rediversion Canal, were tagged in the Edisto River during sturgeon in the Combahee River (rkm and the Pinopolis Dam on the Cooper a 2011 to 2014 telemetry study (Post et 56). Another individual was identified River. Nonetheless, the Santee-Cooper al., 2014). After tagging, 58 of the 76 as a running ripe male at capture in the River system appears to be important Atlantic sturgeon tagged were detected Combahee River in March 2011, was foraging and refuge habitat and could again in the Edisto River during the detected again exhibiting spawning serve as important spawning habitat study. Distinct movement patterns of behavior in the North East Cape Fear once access to historical spawning Atlantic sturgeon were evident. Fish River, North Carolina, in March 2012, grounds is restored through a fishway entered the river between April and and in 2014 was detected from prescription under the FPA (NMFS, June and were detected in the saltwater February–April in the Pee Dee System. 2007). In addition, hard substrate that tidal zone until water temperature The main stem of the Combahee- could be used for spawning exists in the decreased below 25 °C. They then Salkehatchie River runs out well before reach of the Santee River below the moved into the freshwater tidal area, the fall line. Thus, we believe the Wilson Dam, but has been rendered and some fish made presumed upstream extent of spawning habitat in inaccessible by inadequate flow regimes spawning migrations in the fall around the rivers is at the confluence of the below the dam. We anticipate this will September–October. Spawning Buck and Rosemary Creeks, which also be addressed in the new hydropower migrations were thought to be occurring marks the upstream boundary for the license for the Santee-Cooper project. based on fish movements upstream to Combahee-Salkehatchie River. In a recent telemetry study by Post et the presumed spawning zone between al. (2014), four Atlantic sturgeon were rkm 78 and 210. Fish stayed in these Savannah River tagged in the Santee River from 2011 to presumed spawning zones for an The Savannah River was identified as 2014. Of these four, one was detected in average of 22 days. The tagged Atlantic a spawning river for Atlantic sturgeon the river, one was detected at the mouth sturgeon left the river system by based on capture location and tracking of the river, and the other two have not November. A number of tagged locations of adults and the collection of been detected in the Santee River individuals were detected making such larvae. Forty-three Atlantic sturgeon system since being tagged. There was no movements during multiple years of the larvae were collected in upstream detectable spawning run or pattern of study. Only those fish that were tagged locations (rkm 113–283) near presumed movement for the tagged fish that in the Edisto River were detected spawning locations (Collins and Smith, remained in the Santee River (Post et al., upstream near presumed spawning 1997). Seven Atlantic sturgeon were 2014). There were no Atlantic sturgeon grounds, while fish detected in the also tagged from 2011 to 2014 and captured in the Cooper River during the Edisto River, but tagged elsewhere, were distinct movement patterns were Post et al. (2014) study. There were not detected near the presumed evident (Post et al., 2014). In 2011, one seven Atlantic sturgeon detected in the spawning areas. In the winter and individual was detected travelling Cooper River that had been tagged in spring, Atlantic sturgeon were generally upstream in mid-April and remained at other systems. The Atlantic sturgeon absent from the system except for a few a presumed spawning area (rkm 200– that were detected in the Cooper River fish that remained in the saltwater tidal 301) through mid-September. Two were more commonly detected in the zone (Post et al., 2014). The North and Atlantic sturgeon migrated into the saltwater tidal zone, with the exception South Forks of the Edisto River system and upstream to presumed of one that made a presumed spawning represent the upstream boundary for the spawning grounds in 2012. The first run to Pinopolis Dam in the fall of 2013 Edisto River. Both forks occur at or very entered the system in mid-August and (Post et al., 2014). The upstream extents near the fall line, and likely represent returned downriver in mid-September; of potential spawning habitat available the upstream extent of spawning habitat the other entered the system in mid- to Atlantic sturgeon in the occupied accessible to Atlantic sturgeon on the September and returned downriver in portions of the Santee and Cooper Edisto River. mid-October. Four Atlantic sturgeon Rivers are at the Wilson and Pinopolis entered the Savannah River and Combahee-Salkehatchie River Dams, respectively. migrated upstream during the late The Combahee-Salkehatchie River summer and fall months in 2013. Two Edisto River was identified as a spawning river for Atlantic sturgeon previously tagged in The Edisto is the largest river in the Atlantic sturgeon based on capture the Savannah River made upstream Ashepoo, Combahee, Edisto (ACE) location and tracking locations of adults spawning movements; this was the Basin. It begins in the transition zone and the spawning condition of an adult. second year (2011) one of these fish was

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detected making similar upstream Atlantic sturgeon had been captured The Juliette Dam on the Ocmulgee River movements. These two fish were also using trammel and large gill nets. Two is approximately 40 rkm above the fall detected immediately upstream of the hundred and sixty-seven of these fish line and represents the upstream NSBL&D (rkm 301). It is unknown if were collected during the spring boundary of critical habitat on the river. they passed through the lock or swam spawning run in 2004 (74 adults) and Satilla River over the dam during high flows. There 2005 (139 adults). From these captures, is a strong possibility that one fish may 308 (2004) and 378 (2005) adults were The Satilla River was identified as a have been detected by the receiver estimated to have participated in the spawning river for Atlantic sturgeon directly upstream while still remaining spring spawning run, representing 1.5 based on the capture of adults in downstream of the dam and while flow percent of Georgia’s historical spawning spawning condition. Ong et al. (1996) control gates were in a full open stock (females) as estimated from U.S. captured four reproductively mature position. Atlantic sturgeon in the Fish Commission landing records Atlantic sturgeon on spawning grounds Savannah River were documented (Schueller and Peterson, 2006; Secor during the spawning season in the displaying similar behavior 3 years in a 2002). Satilla River. The main stem of the row—migrating upstream during the fall In a telemetry study by Peterson et al. Satilla River runs out well before the fall and then being absent from the system (2006), most tagged adult Atlantic line. Thus, we believe the upstream during spring and summer. Because sturgeon were found between rkm 215 extent of spawning habitat in the river sturgeon cannot currently pass above and 420 in October and November when is at the confluence of the Satilla and the NSBL&D, we believe that dam is the water temperatures were appropriate for Wiggins Creeks. farthest upstream extent of spawning spawning. There are swift currents and St. Marys River habitat accessible to Atlantic sturgeon in rocky substrates throughout this stretch the occupied reaches of the river. of river (Peterson et al., 2006). Two The St. Marys River was identified as hundred thirteen adults in spawning a spawning river for Atlantic sturgeon Ogeechee River condition were captured in the based on the capture of YOY Atlantic The Ogeechee River was identified as Altamaha system in 2004–2005 sturgeon. Atlantic sturgeon were once a spawning river for Atlantic sturgeon (Peterson et al., 2006). thought to be extirpated in the St. Marys based on tracking of adults and YOY. Forty-five adult Atlantic sturgeon River. However, nine Atlantic sturgeon Seventeen Atlantic sturgeon (each were captured and tagged from 2011 to were captured in sampling efforts measuring less than 30 cm TL) 2013 (Ingram and Peterson, 2016). between May 19 and June 9, 2014. considered to be YOY were collected in Telemetry data from the tagged Captured fish ranged in size from 293 2003 by the Army’s Environmental and individuals indicated that the fish were mm (YOY) to 932 mm (subadult). This Natural Resources Division (AENRD) at present in the system from April is a possible indication of a slow and Fort Stewart, Georgia. An additional 137 through December. Twenty-six fish protracted recovery in the St. Marys (D. fish were captured by the AENRD in made significant (>160 rkm) migrations Peterson, UGA, pers. comm. to J. Rueter, 2004. Nine of these fish measured less upstream with eight fish making the NMFS PRD, July 8, 2015). The main than 41 cm TL and were considered migration in at least two of the years stem of the St. Marys River runs out YOY. During a telemetry study from and four making the migration in all well before the fall line. Thus, we 2011 to 2014, there were no capture or three years of the study. No site fidelity believe the upstream extent of spawning tagging efforts conducted in the was apparent based on these data; habitat in the river is at the confluence Ogeechee River; however, 40 Atlantic however, an upriver site near the of the Middle Prong St. Marys and St. sturgeon were detected in the Ogeechee confluence of the Ocmulgee (rkm 340– Marys Rivers. River (Ingram and Peterson, 2016). A 350) was visited by multiple fish in Using this information, we identified rock shoal exists at the fall line on the multiple years. Fish migrated upstream 14 areas within the geographical area Ogeechee River. However, it is possible into both the Ocmulgee and Oconee occupied by the Carolina and South that during certain high flow periods Rivers, but the majority entered the Atlantic DPSs, at the time of listing, that Atlantic sturgeon could pass above Ocmulgee River. The maximum extent contain the PBFs essential to those shoals. Instead, the impassable of these upriver migrations was rkm 408 conservation of the species. Our Mayfield Mill Dam likely represents the in the Ocmulgee River and rkm 356 in descriptions of the critical habitat units extent of upstream spawning habitat the Oconee River (Ingram and Peterson, and PBFs for the Carolina and South accessible to Atlantic sturgeon on the 2016). Atlantic DPSs use both the terms ‘‘river Ogeechee River. Two general migration patterns were mouth’’ and ‘‘rkm 0.’’ Those terms are observed for fish in this system. Early Altamaha River interchangeable and we use them as upriver migrations that began in April– such. The Altamaha River and its major May typically occurred in two steps, The ordinary high water mark on each tributaries, the Oconee and Ocmulgee with fish remaining at mid-river bank of the river and shorelines is the Rivers, were identified as spawning locations during the summer months lateral extent of the following occupied rivers for Atlantic sturgeon based on before continuing upstream in the fall. critical habitat units: capture location and tracking of adults The late-year migrations, however, were Carolina Unit 1 includes the Roanoke and the capture of adults in spawning typically initiated in August or River main stem from the Roanoke condition. The Altamaha River supports September and were generally non-stop. Rapids Dam downstream to rkm 0; one of the healthiest Atlantic sturgeon Regardless of which migration pattern Carolina Unit 2 includes the Tar- subpopulations in the Southeast, with was used during upstream migration, all Pamlico River main stem from the over 2,000 subadults captured in fish exhibited a one-step pattern of Rocky Mount Millpond Dam trammel nets in a 2003–2005 study, 800 migrating downstream in December and downstream to rkm 0; of which were nominally age-1 as early January (Ingram and Peterson, Carolina Unit 3 includes the Neuse indicated by size (ASSRT, 2007). A 2016). Sinclair Dam is approximately 15 River main stem from the Milburnie survey targeting Atlantic sturgeon was rkm above the fall line on the Oconee Dam downstream to rkm 0; initiated in 2003 by the University of River and represents the upstream Carolina Unit 4 includes the Cape Georgia. By October 2005, 1,022 boundary of critical habitat on the river. Fear River main stem from Lock and

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Dam #2 downstream to rkm 0 and the South Atlantic Unit 5 includes the The PBFs essential for successful Northeast Cape Fear River from the main stem Oconee River from Sinclair Atlantic sturgeon reproduction and upstream side of Rones Chapel Road Dam downstream to the confluence with recruitment may also require special Bridge downstream to the confluence the Ocmulgee River, the main stem management considerations or with the Cape Fear River; Ocmulgee River from Juliette Dam protection as a result of global climate Carolina Unit 5 includes the Pee Dee downstream to the confluence with the change. Conditions in the rivers of the River main stem from Blewett Falls Dam Oconee River, and the main stem Southeast used by sturgeon already downstream to rkm 0, the Waccamaw Altamaha River from the confluence of threaten the species’ survival and River from Bull Creek downstream to the Oconee River and Ocmulgee River recovery due to exceedances of rkm 0, and Bull Creek from the Pee Dee downstream to rkm 0; temperature tolerances and the River to the confluence with the South Atlantic Unit 6 includes the sensitivity of sturgeon to low DO levels; Waccamaw River; main stem Satilla River from the these impacts will worsen as a result of Carolina Unit 6 includes the Black confluence of Satilla and Wiggins global climate change and predicted River main stem from Interstate Creeks downstream to rkm 0; and warming of the U.S. Atlantic Coast. Highway 95 downstream to rkm 0; South Atlantic Unit 7 includes the Many communities and commercial Carolina Unit 7 includes the Santee facilities withdraw water from the rivers River main stem from the Wilson Dam main stem St. Marys River from the confluence of Middle Prong St. Marys containing the PBFs essential to Atlantic downstream to the fork of the North sturgeon reproduction. Water Santee River and South Santee River and the St. Marys Rivers downstream to rkm 0. withdrawals during drought events can distributaries, the Rediversion Canal affect flows, depths, and the position of from the St. Stephen Powerhouse Need for Special Management the salt wedge, further impacting the downstream to the confluence with the Considerations or Protection water flow necessary for successful Santee River, the North Santee River We concluded that each of the PBFs sturgeon reproduction, and they can from the fork of the Santee River and also affect DO levels. Attempts to South Santee River downstream to rkm defined above for the Gulf of Maine, New York Bight, Chesapeake Bay, control water during floods (e.g., 0, the South Santee River from the fork spilling water from dams upriver of Carolina, and South Atlantic DPSs of of the Santee River and North Santee Atlantic sturgeon spawning and rearing Atlantic sturgeon may require special River downstream to rkm 0, the Tailrace habitat) can similarly alter flows to the management considerations or Canal from Pinopolis Dam downstream point of dislodging fertilized eggs, protection. Barriers (e.g., dams, tidal to the West Branch Cooper River, the washing early life stages downstream turbines) to generate power or control West Branch Cooper River from the into more saline habitat before being water flow in rivers used by Atlantic Tailrace Canal downstream to the developmentally ready, and creating sturgeon can damage or destroy bottom confluence with the East Branch Cooper barriers (e.g., from debris) to upstream habitat needed for spawning and rearing River, and the Cooper River from the and downstream passage of adults and of juveniles, restrict movement of adults confluence of the West Branch Cooper juveniles. We therefore conclude that River and East Branch Cooper River to and from spawning grounds, prevent the PBFs essential to the conservation of tributaries downstream to rkm 0; juveniles from accessing the full range the Gulf of Maine, New York Bight, South Atlantic Unit 1 includes the of salinity in the natal estuary, and alter Chesapeake Bay, Carolina, and South North Fork Edisto River from Cones water quality parameters, including Atlantic DPSs may require special Pond downstream to the confluence water depth, temperature and DO, to the management considerations or with the South Fork Edisto River, the detriment of sturgeon reproduction, protections. South Fork Edisto River from Highway growth, and survival. Water 121 downstream to the confluence with withdrawals can similarly adversely Unoccupied Areas the North Fork Edisto River, the Edisto impact water quality for Atlantic ESA section 3(5)(A)(ii) defines critical River main stem from the confluence of sturgeon spawning, recruitment, and habitat to include specific areas outside the North Fork Edisto River and South development. Land development and the geographical area occupied if the Fork Edisto River tributaries commercial and recreational activities areas are determined by the Secretary to downstream to the fork at the North on a river can contribute to sediment be essential for the conservation of the Edisto River and South Edisto River deposition that affects water quality species. Our regulations at 50 CFR distributaries, the North Edisto River necessary for successful spawning and 424.12(g) also state: ‘‘The Secretary will from the Edisto River downstream to recruitment. A build-up of fine not designate critical habitat within rkm 0, and the South Edisto River from sediments may, for example, reduce the foreign countries or in other areas the Edisto River downstream to rkm 0; suitability of hard spawning substrate outside of the jurisdiction of the United South Atlantic Unit 2 includes the for Atlantic sturgeon egg adherence and States.’’ main stem Combahee—Salkehatchie reduce the interstitial spaces used by There are riverine areas outside of the River from the confluence of Buck and larvae for refuge from predators. geographical area occupied by the Gulf Rosemary Creeks with the Salkehatchie Dredging to remove sediment build-up, of Maine, New York Bight, and River downstream to the Combahee to deepen harbors and facilitate vessel Chesapeake Bay DPSs as a result of River, and the Combahee River from the traffic, or to mine construction materials dams and natural falls. We considered Salkehatchie River downstream to rkm may remove or alter hard substrate that whether these unoccupied areas were 0; is necessary for egg adherence and that essential to the conservation of the South Atlantic Unit 3 includes the serves as refuge for larvae or soft respective DPSs and concluded that main stem Savannah River from the substrate needed for juvenile foraging, they were not essential because nearly New Savannah Bluff Lock and Dam and may change the water depth, all known historical habitat is accessible downstream to rkm 0; resulting in shifts in the salt wedge to the Gulf of Maine, New York Bight, South Atlantic Unit 4 includes the within the estuary, or change other and Chesapeake Bay DPSs (ASSRT, main stem Ogeechee River from the characteristics of the water quality (e.g., 2007; 77 FR 5880; February 6, 2012) Mayfield Mill Dam downstream to rkm temperature, DO) necessary for the and, because additional unoccupied 0; developing eggs, larvae, and juveniles. habitat is not necessary in light of any

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anticipated impacts of climate change. discussion with USFWS and state 4(b)(2) of the ESA and exclude the Therefore, we are not designating resource managers, we are uncertain Santee-Cooper river system and critical habitat within any unoccupied whether the Cape Fear River Savannah River unoccupied units of areas for the Gulf of Maine, New York unoccupied unit (i.e., the area between critical habitat. We determined the Bight, and Chesapeake Bay DPSs. Lock and Dam #2 and Lock and Dam #3) benefits of exclusion (that is, avoiding For the Carolina and South Atlantic contains spawning habitat that would some or all of the impacts that would DPS, we had proposed to designate make it essential for the conservation of result from designation) outweigh the areas of unoccupied critical habitat. species. In addition,, following the benefits of designation. However, based on input received conclusion of our discretionary BILLING CODE 3510–22–P during the public review process, we exclusion analysis we have elected to reconsidered those proposals. After exercise our discretion under section

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BILLING CODE 3510–22–C

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Application of ESA Section 4(a)(3)(B)(i) York Bight, and Chesapeake Bay DPSs JBC INRMP and were eligible for non- (Military Lands) of Atlantic sturgeon. That Appendix designation consideration. The JBC Section 4(a)(3)(B)(i) of the ESA also includes our analysis supporting INRMP covers the lands encompassed prohibits designating as critical habitat the conclusion that the relevant INRMPs by JB CHS Air (formerly Joint Base any lands or other geographical areas provide the types of benefits to Atlantic Charleston Air Force Base) in owned or controlled by the DOD, or sturgeon described in our regulations Charleston County and lands designated for its use, that are subject to (50 CFR 424.12(h)); therefore, that encompassed by JB CHS Weapons an INRMP prepared under section 101 analysis is not repeated here. (formerly Naval Weapons Station Charleston) in Charleston and Berkeley of the Sikes Act (16 U.S.C. 670a), if the Consideration of Whether the Joint Base Counties. JB CHS Air also includes Secretary determines in writing that Charleston INRMP Provides a North Auxiliary Airfield in Orangeburg such plan provides a benefit to the Conservation Benefit to the Carolina County. Within the area covered by the species for which critical habitat is DPS proposed for designation. The INRMP, three of the four PBF(s) could Joint Base Charleston (JBC) in South be present (all but the spawning legislative history to this provision Carolina is the only installation substrate). Atlantic sturgeon are explains: controlled by the DOD which coincides expected to use the features in this area The conferees would expect the [Secretary] with any area under consideration for in the same way that they would all to assess an INRMP’s potential contribution critical habitat for the Carolina DPS. other areas of designated critical habitat; to species conservation, giving due regard to Prior to development of the proposed in other words, there is nothing unique those habitat protection, maintenance, and rule, we asked JBC to determine if they or limiting about the critical habitat in improvement projects and other related owned or controlled any lands that activities specified in the plan that address this area. the particular conservation and protection should not be designated as critical The INRMP for JBC acknowledges that needs of the species for which critical habitat habitat pursuant to section 4(a)(3)(B)(i) the estuarine waters of the Cooper River would otherwise be proposed. Consistent of the ESA. They responded stating they in the vicinity of JBC Weapons provide with current practice, the Secretary would did not believe they owned or foraging and migratory habitat for establish criteria that would be used to controlled any lands eligible for section Atlantic sturgeon. The INRMP notes that determine if an INRMP benefits the listed 4(a)(3)(B)(i) non-inclusion. However, water pollution at JBC Weapons is a species for which critical habitat would be during the public comment period, the concern due to the large amount of proposed. (Conference Committee report, 149 Navy requested in writing that the essential fish habitat on and around the Cong. Rec. H. 10563 (November 6, 2003)). restricted area on the Cooper River, installation. The INRMP discusses that Our regulations at 50 CFR 424.12(h) South Carolina (defined at 33 CFR there are 26 water quality monitoring provide that in determining whether an 334.460), not be designated as critical stations in the vicinity of JBC that are on applicable benefit is provided, we must habitat, citing that it is covered by the the Clean Water Act section 303(d) list consider: 2015 INRMP for JBC and should not be of impaired waterbodies, that these (1) The extent of the area and features included pursuant to ESA section stations are located in a designated present; 4(a)(3)(B)(i). TMDL watershed, and that 16 of the (2) The type and frequency of use of The regulations at 33 CFR 334.460 stations are located within the Cooper the area by the species; identify 16 specific areas, including River drainage surrounding JBC (3) The relevant elements of the some far from JBC. We determined the Weapons. While none of the monitoring INRMP in terms of management areas described in those regulations fall stations have a TMDL, in 2013 the State objectives, activities covered, and best into three categories: (1) Areas outside of South Carolina revised their TMDL management practices, and the certainty the boundaries of critical habitat and for DO for Charleston Harbor, and the that the relevant elements will be therefore ineligible for non-designation Cooper, Ashley and Wando Rivers implemented; and consideration under section 4(a)(3)(B)(i) (SCDHEC, 2013). In the revised TMDL, (4) The degree to which the relevant and not included in critical habitat (no the South Carolina Department of elements of the INRMP will protect the need to request that these areas not be Health and Environmental Control habitat from the types of effects that included); (2) areas within the (SCDHEC) notes that a number of would be addressed through a boundaries of critical habitat, but not monitoring stations in the covered area, destruction-or-adverse-modification subject to an INRMP, and thus ineligible including the Cooper River, are analysis. for non-designation consideration; and designated as not supporting aquatic life In accordance with section (3) areas within critical habitat, subject use due to low DO. SCDHEC also notes 4(a)(3)(B)(i) of the ESA, the particular to an INRMP, which are eligible for non- that available data and modeling areas of the U.S. Military Academy— designation consideration. indicate that regulated and unregulated West Point, New York, Joint Base Of the 16 areas identified in 33 CFR stormwater and nonpoint sources are Langley—Eustis, Virginia, Marine Corps 334.460, we determined seven entire not contributing to allowable DO Base Quantico, Virginia, Naval Support areas (33 CFR 334.460 (a)(2), (3), (7), depression on main stem segments in Facility Dahlgren, and Naval Weapons (8)(i), (11)–(13)), and a portion of Charleston Harbor, or the Cooper, Station Yorktown, that overlap with a another (33 CFR 334.460 (a)(1)— Ashley, and Wando Rivers. JBC New York Bight DPS or Chesapeake Bay Noisette Creek), did not meet the Weapons has three NPDES permits— DPS critical habitat unit are not part of definition of critical habitat and were one industrial and two stormwater. JBC the designated critical habitat unit ineligible for non-designation is implementing a Stormwater because the INRMP for each facility consideration. We determined four Management Plan that addresses water provides a benefit to the respective additional areas (33 CFR 334.460 (a)(1), quality for the entire storm sewer Atlantic sturgeon DPS and its habitat. A (4)–(6)) were in the second category and collection system. copy of the letter providing our also ineligible for non-designation Section 7.4 of the INRMP addresses determination for each facility is consideration. management of threatened and provided in Appendix C of the Impacts However, we did conclude the five endangered species, species of concern, Analysis and Biological Source remaining areas (33 CFR 334.460 and their habitats. In the subsection for Document for the Gulf of Maine, New (a)(8)(ii)–(iv), (9), (10)) fell under the Atlantic sturgeon, the INRMP

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appropriately acknowledges that the we describe below as project designation, it is our general practice to Atlantic sturgeon requires access to modifications for avoiding or reducing exclude an area when the benefits of expansive areas of high quality adverse effects to the critical habitat. exclusion outweigh the benefits of freshwater habitats and that the waters Therefore, were we to consult with the inclusion. of the Cooper River in the vicinity of DOD on the activities in the INRMP that The ESA provides the Services with JBC Weapons provide foraging and may affect the critical habitat, we would broad discretion in how to consider migratory habitat for the species. The likely not require any project impacts. See, H.R. Rep. No. 95–1625, at INRMP describes a number of modifications based on the best 17, reprinted in 1978 U.S.C.C.A.N. 9453, management activities that benefit management practices in the INRMP. 9467 (1978) (‘‘Economics and any other Atlantic sturgeon and its habitat. The Further, the INRMP includes provisions relevant impact shall be considered by INRMP summarizes the benefits of this for monitoring and evaluating the Secretary in setting the limits of suite of activities as follows: conservation effectiveness, which will critical habitat for such a species. The ‘‘Management activities would improve ensure continued benefits to the species. Secretary is not required to give water quality by identifying, correcting, The INRMP must be reviewed by economics or any other ‘relevant or preventing pollution or sediment participating Federal and state resource impact’ predominant consideration in discharges; limiting substrate management agencies on a regular basis, his specification of critical habitat . . . disturbance; maintaining DO content by but not less often than every five years. The consideration and weight given to reducing nutrients entering the water JB CHS will also provide us an any particular impact is completely that result in an increased biological opportunity to review the INRMP, as within the Secretary’s discretion.’’). oxygen demand from organisms protected species under our jurisdiction Courts have noted the ESA does not processing the nutrients; and (i.e., Atlantic and shortnose sturgeon) contain requirements for any particular maintaining or improving water clarity may be affected by measures in the methods or approaches. See, e.g., Bldg. by reducing erosion and limiting INRMP. We believe the JBC INRMP Indus. Ass’n of the Bay Area et al.. v. sediment in runoff.’’ These objectives provides the types of benefits to Atlantic U.S. Dep’t. of Commerce et al.., No. 13– are directly relevant to protection of the sturgeon described in our regulations 15132, 9th Cir., July 7, 2015 (upholding transitional salinity, soft substrate, and (50 CFR 424.12(h)) and, thus, the district court’s ruling that the ESA does water quality facets of the PBFs of restricted areas in the Cooper River not require the agency to follow a Atlantic sturgeon critical habitat. We covered by the INRMP should not be specific methodology when designating identified several management activities included in designated critical habitat. critical habitat under section 4(b)(2)). For this final rule, we followed the same discussed in the INRMP that we believe Application of ESA Section 4(b)(2) can help accomplish these objectives, approach to describing and evaluating including: Section 4(b)(2) of the ESA requires impacts as we have for other recent (1) Repairing/revitalizing stormwater that we consider the economic impact, critical habitat rulemakings. drainage systems; impact on national security, and any The following discussion of impacts (2) Updating the Stormwater Pollution other relevant impact, of designating summarizes the analysis contained in Prevention Plan and the Stormwater any particular area as critical habitat. our final Impacts Analysis and Management Plan; Additionally, the Secretary has the Biological Source Document for the Gulf (3) Repairing forestry roads and discretion to consider excluding any of Maine, New York Bight, and culverts; area from critical habitat if [s]he Chesapeake Bay DPSs of Atlantic (4) Including performance-based goals determines, based upon the best sturgeon. The administrative cost of in grounds maintenance to help scientific and commercial data conducting ESA section 7 consultations minimize erosion and sediment available, the benefits of exclusion (that was determined to be the primary transport to the Cooper River; is, avoiding some or all of the impacts source of economic impacts as a result (5) Implementing BMPs to improve that would result from designation) of designating critical habitat for the water quality discharged to the Cooper outweigh the benefits of designation. Gulf of Maine, New York Bight, and River, including training, identifying The regulations at 50 CFR 424.19(h) Chesapeake Bay DPSs. The number of and correcting illicit discharges, provide the framework for how we incremental consultations over the next enforcing erosion and sedimentation intend to implement section 4(b)(2) of 10 years will likely be relatively small, controls; the ESA. These regulations were revised because Atlantic sturgeon of a given life (6) Limiting dredge operations in the in 2016 (81 FR 7413; February 11, 2016). stage are likely to be either directly or Nuclear Power Training Unit ship In particular, Congress has authorized indirectly affected by the Federal channel and other shipping/receiving the Secretary to ‘‘exclude any area from activities projected to occur within the facilities to the minimum extent critical habitat if [s]he determines that proposed critical habitat. Since nearly required; the benefits of exclusion outweigh the all, if not all, the ESA section 7 (7) Maintaining and/or developing benefits of specifying such area as part consultations we anticipate to occur protective buffer strips where feasible of the critical habitat, unless [s]he over the next 10 years will need to around wetlands along streams; and determines, based on the best scientific evaluate potential effects to both the (8) Practicing ecologically-sound and commercial data available, that the Atlantic sturgeon DPS(s) present in the forest management. failure to designate such area as critical area and the critical habitat, the impacts These activities provide a benefit to habitat will result in the extinction of will be coextensive. Therefore, the low the PBFs identified in the critical the species concerned’’ (ESA section administrative cost estimates are the habitat designations, particularly the 4(b)(2)). Because the authority to most realistic cost estimates. The transitional salinity zone/soft substrate exclude is discretionary, exclusion is projected low administrative costs of and water quality PBFs, by reducing not required for any particular area, designating all of the Gulf of Maine DPS sediment and nutrient discharges into under any circumstances; however, critical habitat units total $816,574.20 nearshore waters, which addresses some under the final policy (81 FR 7226; over the next 10 years. The projected of the conservation and protection February 11, 2016), if NMFS determines low administrative costs for the New needs that critical habitat would afford. it is appropriate to conduct an exclusion York Bight DPS critical habitat units These activities are similar to those that analysis on some or all areas of a total $1,418,299.30 over the next 10

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years. The projected low administrative also help focus the efforts of other deciding whether to exercise our costs of designating all of the conservation partners (e.g., State and discretion to propose excluding Chesapeake Bay DPS critical habitat local governments, individuals and particular areas from the designation. units total $501,774.20 over the next 10 nongovernmental organizations), and Both positive and negative impacts were years. Currently, there is no information could be beneficial to the ecosystem by identified and considered (these terms indicating that any of the ESA section protecting features that are also are used interchangeably with benefits 7 consultations expected to result from necessary for the conservation of other and costs, respectively). Impacts were the critical habitat designations will species. evaluated in quantitative terms where result in project modifications. Based on our consideration of feasible, but qualitative appraisals were However, because we cannot predict impacts, we are not excluding any areas used where that is more appropriate to from the critical habitat designations for every Federal action that will be particular impacts. The final Impacts the Gulf of Maine, New York Bight, and proposed in the future or what the Analysis is available on our Web site at impacts of those actions will be on Chesapeake Bay DPSs of Atlantic http://sero.nmfs.noaa.gov/protected_ critical habitat, we recognize that there sturgeon based on economic, national resources/sturgeon/index.html. may be some future costs associated security, or other relevant impacts. The with project modifications. The timing designation of critical habitat will The primary impacts of a critical of the ESA section 7 consultation provide conservation benefits such as habitat designation result from the ESA process, which is designed to occur as improved education and outreach by section 7(a)(2) requirement that Federal early as possible in the action planning informing the public about areas and agencies ensure their actions are not process and before there have been any features important to the conservation of likely to result in the destruction or irreversible or irretrievable commitment the Gulf of Maine, New York Bight, and adverse modification of critical habitat, of resources, minimizes the potential for Chesapeake Bay DPSs. There are also a and that they consult with us in the outcome of a consultation to be number of potential beneficial impacts fulfilling this requirement. Determining costly project modifications. of designating critical habitat that these impacts is complicated by the fact We considered information provided extend beyond the conservation benefits that section 7(a)(2) also requires that by the Navy for impacts to national to Atlantic sturgeon. For example, Federal agencies ensure their actions are security the Navy expects to result from protecting essential PBFs of sturgeon not likely to jeopardize the species’ critical habitat designation for the Gulf habitat, including preserving water continued existence. One incremental of Maine, New York Bight, and quality and natural flow regimes, will impact of designation is the extent to Chesapeake Bay DPSs. We determined benefit other organisms that are co- which Federal agencies modify their that any resulting ESA section 7 located in these areas. While we cannot proposed actions to ensure they are not consultations for Navy activities within quantify nor monetize the benefits, we the critical habitat areas will likely be believe they are not negligible and likely to destroy or adversely modify the coextensive and that based on this, as would be an incremental benefit of this critical habitat beyond any well as the types of activities the Navy designation. Therefore, we have modifications they would make because will undertake in the critical habitat, declined to exercise our discretion to of listing and the results of a jeopardy there will be no impacts to national exclude any particular area from the analysis. When the same modification security resulting from the designation proposed critical habitat units for the would be required due to impacts to of critical habitat for the Gulf of Maine, Gulf of Maine, New York Bight, and both the species and critical habitat, the New York Bight or Chesapeake Bay Chesapeake Bay DPSs of Atlantic impact of the designation is coextensive DPS. sturgeon. with the ESA listing of the species (i.e., There are a number of potential The Impacts Analysis and Biological attributable to both the listing of the beneficial impacts of designating critical Source Document for the Gulf of Maine, species and the designation critical habitat that extend beyond the New York Bight, and Chesapeake Bay habitat). Relevant, existing regulatory conservation benefits to Atlantic DPSs provides specific information on protections are referred to as the sturgeon. Because it is often difficult to the Economic, National Security and ‘‘baseline’’ and are also discussed in the quantify the benefits of designating Other Relevant Impacts considered for Impacts Analysis. In this case, notable critical habitat, Executive Order (EO) the critical habitat designations for these baseline protections include the ESA 12866, Regulatory Planning and Review, DPSs and therefore is not repeated here. listings of not only Atlantic sturgeon, provides guidance on assessing costs Specific information for these impacts but the co-occurring endangered and benefits. The EO directs Federal as well as the determination for shortnose sturgeon. agencies to assess all costs and benefits Discretionary Exclusions under section The Impacts Analysis describes the of available regulatory alternatives, and 4(b)(2) for the critical habitat to select those approaches that designations for the Carolina and South projected future Federal activities that maximize net benefits. Atlantic DPSs is provided below. would trigger section 7 consultation The designation of critical habitat will The following discussion of impacts requirements because they may affect provide conservation benefits such as summarizes the analysis contained in the PBF(s), and consequently may result improved education and outreach by our final ‘‘Impacts Analysis of Critical in economic costs or negative impacts. informing the public about areas and Habitat Designation for the Carolina and The report also identifies the potential features important to the conservation of South Atlantic Distinct Population national security and other relevant the Gulf of Maine, New York Bight, and Segments of Atlantic Sturgeon impacts that may arise due to the Chesapeake Bay DPSs. Specifying the (Acipenser oxyrinchus oxyrinchus)’’ critical habitat designation, such as geographical location of critical habitat (IA), which identifies the economic, positive impacts that may arise from facilitates implementation of section national security, and other relevant conservation of the species and its 7(a)(1) of the ESA by identifying areas impacts that we projected would result habitat, state and local protections that where Federal agencies can focus their from including each of the 14 occupied may be triggered as a result of conservation programs and use their and 2 unoccupied specific areas in the designation, and education of the public authorities to further the purposes of the critical habitat designation. We to the importance of an area for species ESA. Designating critical habitat can considered these impacts when conservation.

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Economic Impacts of Designating 10. NMFS—ESA research and incidental significant). This would likely only Critical Habitat for the Carolina and take permitting (section 10) (46); apply to actions that affect spawning South Atlantic DPSs 11. USFWS—Fishery management grants habitat in the upper parts of the rivers, (11); Economic impacts of the critical 12. EPA—Nationwide pesticide as sturgeon of various ages are present habitat designation result through authorizations (9); year-round in the lower reaches of the implementation of section 7 of the ESA 13. EPA—State water quality standard rivers and the estuaries. The costs of in consultations with Federal agencies reviews (12); fully incremental, informal to ensure their proposed actions are not 14. Federal Emergency Management consultations are higher than the Agency (FEMA)—Disaster assistance/ likely to destroy or adversely modify marginal costs of adding critical habitat preparation grants (5); and analyses to coextensive, formal critical habitat. These economic impacts 15. Department of Energy (DOE)—Nuclear may include both administrative and fuel management (3). consultations. Thus, to be conservative project modification costs; economic and avoid underestimating incremental In total, we estimated that 217 impacts that may be associated with the impacts of this designation, and based activities would require section 7 conservation benefits of the designation on the activities we identified, we consultation over the next 10 years to assumed that two categories of activities are described later. consider impacts to Atlantic sturgeon When identifying costs, we examined could result in incremental, informal critical habitat for the Carolina and the ESA section 7 consultation record consultations. Those activities, both South Atlantic DPSs. As discussed in over the last 10 years, as compiled in implemented by the USACE, are CWA more detail in our final IA, all the our PCTS database, to identify the types section 404/Rivers and Harbors Act activities identified as having the of Federal activities that may adversely permitting and WRDA dam operations/ potential to adversely affect one or more affect Atlantic sturgeon critical habitat. repair. Administrative costs include the of the PBF(s) also have the potential to cost of time spent in meetings, We also requested that Federal action take Atlantic sturgeon. For most, if not preparing letters, and in some cases, agencies provide us with information on all, of the projected future activities, if developing a biological assessment and future consultations if we omitted any the effects to critical habitat will be biological opinion, identifying and future actions likely to affect the adverse and require formal consultation, proposed critical habitat. No new those effects would also constitute designing reasonable and prudent categories of activities were identified adverse effects to the species, either measures (RPMs), and so forth. For this through this process. Of the types of directly when they are in the project impacts report, we estimated per-project past consultations that ‘‘may affect’’ area, or indirectly due to the effects on administrative costs based on critical some or all of the PBF(s) in any unit of their critical habitat. This is due to the habitat economic analyses by Industrial critical habitat, we determined that no ecological functions of these PBFs. For Economics, Inc. (IEc) (2014). This activities would solely affect the PBFs example, water quality is being impacts report estimates administrative essential for conservation. That is, all identified as an essential PBF to costs for different categories of categories of the activities we identified facilitate successful spawning, annual consultations as follows: (1) New that could impact the PBFs also had the and inter-annual adult, larval, and consultations resulting entirely from potential of ‘‘take’’ resulting from the juvenile survival, and larval, juvenile critical habitat designation; (2) new listing of the species. and subadult growth, development, and consultations considering only adverse In the proposed rule we identified 15 recruitment. Effects to the water quality modification (unoccupied habitat); (3) categories of activities implemented by PBF that impede that conservation reinitiation of consultation to address 10 different Federal entities as likely to objective could injure or kill individual adverse modification; and (4) additional recur in the future and have the Atlantic sturgeon, for example, by consultation effort to address adverse potential to affect the PBF(s). Based on preventing adult reproduction, or modification in a new consultation. comments from EPA, we added a rendering reproduction ineffective or Most of the projected future category for EPA for the triennial resulting in reduced growth or mortality consultations we project to result from approval of state water quality of larvae, juveniles or subadults. In this final rulemaking will be standards. Listed below is the agency, these circumstances, the same project coextensive formal consultations on description of the activity, and total modifications would be required to new actions that would be evaluating number of projected consultations address effects to both the species and impacts to sturgeon as well as impacts anticipated over the next 10 years effects to the critical habitat. Thus, to critical habitat, and the indicated in parentheses: projects that adversely affect the PBF(s) administrative costs for these 194 1. USACE—Navigation maintenance are likely to always also take the species consultations would be in category 4 dredging, harbor expansion (14); and the project impacts would not be above. The remaining 23 actions are 2. USACE—Water Resources Development incremental. projected to involve incremental Act (WRDA) flood control, ecosystem For some of the projected activities, it informal consultation due to impacts to restoration studies (6); may be feasible to conduct the action critical habitat alone. Based on the IEc 3. USACE—WRDA dam operations, repair, when sturgeon are out of the action area. reports (2014), we project that each fishway construction (3); 4. USACE—Clean Water Act (CWA) section If effects to critical habitat are temporary formal consultation will result in the 404/Rivers and Harbors Act (RHA) section 10 such that the PBF(s) return to their pre- following additional costs to address permitting—dredge, fill, construction (20); project condition by the time the critical habitat impacts: $1,400 in costs 5. Federal Highway Administration sturgeon return and rely on the PBFs, to us; $1,600 in action agency costs; (FHWA)—Bridge repair, replacement (67); there might not be any adverse effects to $880 in third party (e.g., permittee) 6. U.S. Coast Guard (USCG)—Bridge repair, either the species or the critical habitat. costs, if applicable; and $1,200 in costs replacement permitting (3); In these circumstances, consultations to the action agency or third party to 7. FERC—Hydropower licensing (5); would be fully incremental prepare a biological assessment. Costs 8. FERC—Liquefied Natural Gas (LNG) facilities, pipelines authorization (5); consultations only on critical habitat, for the incremental informal 9. Nuclear Regulatory Commission (NRC)— and the consultations would be informal consultations would be as follows: Nuclear power plant construction/operation (i.e., impacts to critical habitat would $1,900 in costs to us; $2,300 in action licensing (8); not be permanent and would not be agency costs; $1,500 in third party (e.g.,

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permittee) costs, if applicable; and administrative costs of section 7 Impacts Analysis, and we summarize $1,500 in costs to the action agency or consultations. While there may be the information below. third party to prepare a BA. serious adverse impacts to critical The Navy’s first submission provided Costs of the nine EPA nationwide habitat from projected future projects information on its facilities and pesticide consultations were treated that require project modifications to operations. However, the Navy was not differently. These consultations will avoid destroying or adversely modifying able to make a full assessment of involve all listed species and all critical habitat, impacts of these whether there would be any national designated critical habitat under our magnitudes to the PBF(s) as defined security impacts. The Navy indicated jurisdiction, and thus costs attributable would also result in adverse effects to that as we define our PBF(s) and areas solely to this final rule designating Atlantic sturgeon, either directly when more precisely, they would be able to critical habitat for Atlantic sturgeon are they are in the project area, or indirectly provide a more detailed response to our expected to be only a very small part of as harm, resulting from impacts to their requests and would update their that cost. To be conservative, we added habitat that result in injury or death. INRMPs as necessary for the protection nine consultations to each critical The same project modifications would of Atlantic sturgeon and its critical habitat unit for all five DPSs. We spread be required to avoid destroying or habitat. The Navy’s second submission the costs of these 9 consultations adversely modifying critical habitat and noted that Naval Submarine Base Kings ($5,080 each) evenly across all 31 avoiding jeopardy, or minimizing take Bay was adjacent to the South Atlantic critical habitat units. This resulted in a of Atlantic sturgeon caused by impacts DPS critical habitat unit in the St. Marys total cost of $1,474.84 per unit over 10 to its habitat. River. The Navy stated it did not own years. Based on our final Impacts Analysis or control any land or waters within the The 12 consultations on EPA approval for the Carolina and South Atlantic St. Marys channel, but that the of state water quality standards were DPSs, we project that the costs that will TRIDENT-class submarines used 4.9 km also treated differently. EPA expects to result from the designation of critical of the waterway transiting to and from conduct three statewide consultations habitat will total $1,154,475 over the the Atlantic Ocean. The Navy stated that regarding their approval of state water next 10 years. The total incremental cost any operational or dredging restrictions quality standards in each of the four resulting from the designation for the that would impede maintenance of the states covered by the designation of Carolina DPS is $526,447, and the total channel from the Intracoastal Waterway critical habitat for the Carolina and incremental cost resulting from the and St. Marys channel intersection, South Atlantic DPSs. For these two designation for the South Atlantic DPS downstream, could pose a national DPSs, we have split the incremental is $628,027, over 10 years. The annual security risk. Typically we consult with administrative costs of 3 statewide cost per-unit ranges widely from $873 the USACE for dredging actions, and in consultations ($15,240) equally across (Carolina Unit 6—Black River, Carolina this case the Navy would be the permit all the units within each state, added DPS) to $23,523 (South Atlantic Unit applicant. We determined that dredging these costs to the 10-year totals, and 3—Occupied Savannah River, South has the potential to affect critical derived the annual totals from these Atlantic DPS). habitat, but we also concluded that figures, because these are not annual consultations for effects of dredging on National Security Impacts of actions. We added the costs projected critical habitat will be fully-coextensive Designating Critical Habitat for the across two states to units that occur in with consultations to address impacts to Carolina and South Atlantic DPSs two states. Total costs for these sturgeon (both shortnose and Atlantic). consultations are $3,048 per unit in Previous critical habitat designations The effects of dredging on PBF(s) would North Carolina, $2,540 per unit in have recognized that impacts to national also result in injury or death to Georgia, and $2,177.14 in South security result if a designation would individual sturgeon, and thus constitute Carolina. Costs for units bordering 2 trigger future ESA section 7 take. Removal or covering of spawning states are $5,225.14 in the Pee Dee River consultations because a proposed substrate could prevent effective unit, $4,717.14 in the Savannah River military activity ‘‘may affect’’ the PBFs spawning or result in death of eggs or unit, and $17,780 in the St. Marys unit essential to the listed species’ larvae that are spawned. Changing the (the costs of the 3 statewide water conservation. Anticipated interference salinity regime by deepening harbors quality standards (WQS) consultations with mission-essential training or and parts of rivers could result in in Florida are attributed wholly to this testing or unit readiness, through the permanent decreases of available single unit in the state, added to the additional commitment of resources to foraging and developmental habitat for costs of Georgia WQS consultations). an adverse modification analysis and juveniles. These types of adverse effects We have added three consultations to expected requirements to modify the are not likely to be temporary and the number expected in each unit, but action to prevent adverse modification limited to periods of sturgeon absence. the total number of consultations for of critical habitat, has been identified as Thus, adverse effects of dredging each DPS consists of three consultations a negative impact of critical habitat activities identified by the Navy would per each state with units in that DPS. designations. (See, e.g., Proposed be likely to be coextensive in formal This approach avoids underestimating Designation of Critical Habitat for consultations to address impacts to both the costs in any unit but would Southern Resident Killer Whales; 69 FR the species and the PBF(s), and thus no overestimate the total costs expected. 75608, Dec. 17, 2004, at 75633.) new requirements or project In our impacts analysis, we concluded On February 14, 2014, and again in modifications are anticipated as a result that none of the projected future October 7, 2015, we sent letters to the of the critical habitat designation. activities are likely to require project DOD and the Department of Homeland Therefore, after considering the action modifications to avoid adverse effects to Security requesting information on identified by the Navy at Kings Bay, we critical habitat PBFs that would be national security impacts of the find there will be no impact on national different from modifications required to proposed critical habitat designations, security as a consequence of the critical avoid adverse effects to sturgeon. In and we received responses from the habitat designation for these actions. other words, we projected no Navy, Air Force, Army, and USCG. We Both the Navy and Air Force incremental costs for actions in a critical discuss the information contained expressed concern that designating the habitat unit other than the within the responses thoroughly in the Cooper River, including the riverine

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area on the west bank adjacent to the Based on a review of our PCTS Commercial and recreational fishing are Joint Base Charleston Naval Weapons database, and the information provided components of the economy related to Station, could have significant impacts by the Navy, Air Force, Army, and the ecosystem services provided by the on the Navy’s ability to adequately USCG on their activities conducted resources within Atlantic sturgeon support mission-essential military within the specific areas being critical habitat areas. The PBF(s) operations, thereby impacting national designated as Atlantic sturgeon critical contribute to fish species diversity. security. The Navy and Air Force were habitat, we determined that only one Education and awareness benefits concerned that designation of critical military action identified as a potential stem from the critical habitat habitat could affect training facilities area of national security impact has designation when non-Federal and the maintenance of their facilities. routes of potential adverse effects to government entities or members of the Additional concerns were expressed PBF(s)—river channel dredging. As general public responsible for, or regarding shipping and receiving discussed, this activity will require interested in, Atlantic sturgeon operations from two waterfront consultation due to potential impacts to conservation change their behavior or facilities. Because no specifics were listed Atlantic and shortnose sturgeon, activities when they become aware of given on how designation of critical and any project modifications needed to the designation and the importance of habitat could affect these activities, and address impacts to these species would the critical habitat areas and features. because we determined there are no also address impacts to critical habitat. Designation of critical habitat raises the routes of effects to PBF(s) from these Thus, no incremental project public’s awareness that there are special activities based on the information modification impacts are expected due considerations that may need to be provided, we concluded that to this designation. On this basis, we taken within the area. Similarly, state designation of critical habitat will have conclude there will be no national and local governments may be no impact on these activities and thus security impacts associated with the prompted to carry out programs to will not result in impacts to national critical habitat designation for the complement the critical habitat security. Upon further discussion with Carolina and South Atlantic DPSs of designation and benefit the Carolina and the Navy, we determined the area was Atlantic sturgeon. South Atlantic DPSs of Atlantic sturgeon. Those programs would likely covered by the 2015 INRMP and should Other Relevant Impacts not be included as critical habitat result in additional impacts of the pursuant to ESA section 4(a)(3)(B)(i) Other relevant impacts of critical designation. However, it is impossible habitat designations can include (see Consideration of Whether the Joint to quantify the beneficial effects of the conservation benefits to the species and Base Charleston INRMP Provides a awareness gained or the secondary to society, and impacts to governmental Conservation Benefit to the Carolina impacts from state and local programs and private entities. The Impacts DPS above). resulting from the critical habitat Analysis for the designation of critical designation. The Army noted that Military Ocean habitat for the Carolina and South Terminal-Sunny Point was located on Atlantic DPSs discusses conservation Discretionary Exclusions Under Section the Cape Fear River, North Carolina, and benefits of designating the 14 occupied 4(b)(2) for the Carolina and South Fort Stewart was located on the and 2 unoccupied areas, and the Atlantic DPSs Ogeechee River, Georgia. The Army was benefits of conserving the Carolina and In our proposed rule, we described not able to make a full assessment South Atlantic sturgeon DPSs to society, our preliminary determination that we whether there would be any national in both ecological and economic would not perform a discretionary security impacts and concluded that metrics. exclusion analysis. Input received technical assessments to occur between As discussed in the Impacts Analysis during the public comment period the installations and NMFS at the for the Carolina and South Atlantic resulted in our determination that an regional level would identify any DPSs and summarized here, Atlantic exclusion analysis for the unoccupied specific impacts. sturgeon currently provide a range of Santee-Cooper and Savannah River The USCG provided information on benefits to society. Given the positive units was warranted. On the other hand, its facilities and operations. The USCG benefits of protecting the PBFs essential given that occupied units are currently was not able to make a full assessment to the conservation of these DPSs, this used by Atlantic sturgeon for whether there would be any national protection will in turn contribute to an reproduction and recruitment, and due security impacts. The USCG indicated increase in the benefits of this species to the severely depressed levels of all that as we develop our PBF(s) and areas to society in the future as the species river populations, occupied units are far more precisely in the final rule, they recovers. While we cannot quantify nor too valuable to both the conservation would be able to provide a more monetize these benefits, we believe they and the continuing survival of Atlantic detailed response to our requests. Our are not negligible and would be an sturgeon to be considered for exclusion. PCTS database indicated the USCG incremental benefit of this designation. Based on the analysis included in our consulted with us three times on However, although the PBFs are IA, the likely benefits of excluding the authorizations for bridge repairs or essential to the conservation of Atlantic unoccupied Santee-Cooper and replacements. In developing this final sturgeon DPSs, critical habitat Savannah river units include avoiding rule we determined if those actions designation alone will not bring about consultation costs of $23,972 and were conducted in the future, the the recovery of the species. The benefits $11,272 over ten years, respectively. In activities may affect critical habitat of conserving Atlantic sturgeon are, and addition, there may be ancillary benefits PBFs, but the effects would be fully will continue to be, the result of several of exclusion to Federal agencies that coextensive with effects to the listed laws and regulations. would conduct activities in these areas, sturgeons. Based on this information The Impacts Analysis identifies both and to their project applicants. regarding potential future USCG action consumptive (e.g., commercial and Our qualitative analysis of the in Atlantic sturgeon critical habitat, we recreational fishing) and non- benefits derived from designation do not expect any national security consumptive (e.g., wildlife viewing) include benefits associated with section impacts as a consequence of the critical activities that occur in the areas being 7 consultations (e.g., proactive habitat designation. designated as critical habitat. coordination with other federal agencies

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to avoid impacts to critical habitat); conservation once fish passage to these for the New York Bight DPS of Atlantic increased likelihood of specifically areas is established in the near future. sturgeon. We found approximately 773 protecting habitat necessary for Atlantic We also note that FERC and USACE km (480 miles) of aquatic habitat within sturgeon recovery; and opportunities for submitted some significant new the Potomac, Rappahannock, York, federal agency conservation programs information late during the interagency Pamunkey, Mattaponi, James, Nanticoke under section 7(a)(1) of the ESA. These review process on the final rule, outside Rivers and Marshyhope Creek are benefits would be limited in the of the public comment period. One critical habitat for the Chesapeake Bay unoccupied Santee-Cooper and agency suggested exclusion of DPS of Atlantic sturgeon. Savannah River units, given the low unoccupied critical habitat was needed We found approximately 1,939 km number of unique federal agency actions to prevent third party litigation seeking (1,205 miles) of aquatic habitat within projected to require consultation over fish passage or removal of dams the the Roanoke, Tar-Pamlico, Neuse, Cape the next ten years (4 and 1 action, agency owns and operates on the Cape Fear, Northeast Cape Fear, Waccamaw, respectively). Other benefits of Fear River to allow migration of Pee Dee, Black, Santee, North Santee, designation include ancillary benefits to sturgeon. That agency estimated the South Santee, and Cooper Rivers and other commercially-important aquatic average cost to provide fish passage Bull Creek are critical habitat for the species associated with Atlantic would range from $8 million and $15 Carolina DPS of Atlantic sturgeon. sturgeon habitat; non-use values for million. The other agency submitted Likewise, we found approximately sturgeon and their habitats; and hypothetical costs that might result if 2,883 km (1,791 miles) of aquatic habitat increased state, local and public consultation were required solely to within the Edisto, Combahee- awareness of the importance of these protect unoccupied critical habitat from Salkehatchie, Savannah, Ogeechee, areas, that could generate non-federal the effects of numerous facilities they Altamaha, Ocmulgee, Oconee, Satilla, conservation efforts and benefits. As we regulate in the watersheds extending and St. Marys Rivers are critical habitat discuss in the IA, given the particular hundreds of miles above the proposed for the South Atlantic DPS of Atlantic facts and circumstances for these DPSs unoccupied units. Cost estimates sturgeon. and this critical habitat designation, it is provided by that agency ranged from $0 Activities That May Be Affected to over $1.7 million annually for the likely that many or most of these Section 4(b)(8) of the ESA requires benefits will result from baseline range of facilities identified. Those estimates were projected based on past that to the maximum extent practicable, protections for sturgeon and their we describe briefly and evaluate, in any habitats, even if the unoccupied areas environmental compliance costs for similar facilities. We decided to remove proposed or final regulation to designate are excluded from the designation. As critical habitat, those activities that may such, we do not conclude that the unoccupied Cape Fear unit because it is not essential to sturgeon destroy or adversely modify such conservation and recovery of the habitat or that may be affected by such Carolina and South Atlantic DPSs conservation. Because we decided to exclude the unoccupied Santee-Cooper designation. As described in our would be impaired by excluding these Impacts Analysis and Biological Source areas from the designation. and Savannah River units based on the impacts identified in our proposed Document for the Gulf of Maine, New We determined the potential impacts assessment, and because the York Bight, and Chesapeake Bay DPSs economic impacts of the designation of public was not afforded an opportunity of Atlantic sturgeon, and in our final unoccupied critical habitat are relatively to review and comment on the new cost Impacts Analysis for the Carolina and small. We determined there are information and assumptions, South Atlantic DPSs of Atlantic significant conservation benefits consideration of this late input was not sturgeon, a wide variety of activities associated with designation of necessary and did not play a role in our may affect critical habitat and, when unoccupied critical habitat, but we determinations. If the types of impacts carried out, funded, or authorized by a could not conclude that these benefits identified by these agencies would be Federal agency, will require an ESA are incremental impacts of including the potential impacts of including the section 7 consultation because they may unoccupied units in the designation. unoccupied units in the designation, it affect one or more of the PBFs of critical Therefore, it is our judgment that the would bolster our conclusion that the habitat. Such activities include in-water benefits of excluding the unoccupied benefits of exclusion outweigh the construction for a variety of Federal Santee-Cooper and Savannah River benefits of inclusion. actions, dredging for navigation, harbor units outweigh the benefits of including expansion or sand and gravel mining, these units in the designation. Final Determinations and Critical flood control projects, bridge repair and Exclusion of these unoccupied units Habitat Designation replacement, hydropower licensing, will not result in the extinction of the We conclude that specific areas meet natural gas facility and pipeline Carolina or South Atlantic DPS of the definition of critical habitat for the construction, ESA research and Atlantic sturgeon. Atlantic sturgeon will Gulf of Maine, New York Bight, incidental take permits or fishery need the additional spawning habitat in Chesapeake Bay, Carolina, and South research grants, and CWA TMDL these units to increase their Atlantic DPSs of Atlantic sturgeon, that program management. Private entities reproductive success and population a critical habitat designation is prudent, may also be affected by these critical growth in order to recover, and thus if and that critical habitat is determinable. habitat designations if they are a these habitats were lost to sturgeon they We found approximately 244 km (152 proponent of a project that requires a would not recover. However, based on miles) of aquatic habitat within the Federal permit, Federal funding is the Federal actions expected to occur in Penobscot, Kennebec, Androscoggin, received, or the entity is involved in or these areas over the next ten years, and Piscataqua, Cocheco, Salmon Falls, and receives benefits from a Federal project. because the areas are protected through Merrimack Rivers are critical habitat for Future activities will need to be a number of baseline requirements the Gulf of Maine DPS of Atlantic evaluated with respect to their potential including the listing of shortnose sturgeon. We found approximately 547 to destroy or adversely modify critical sturgeon, we do not expect impacts to km (340 miles) of aquatic habitat within habitat. For example, activities may these areas would prevent them from the Connecticut, Housatonic, Hudson, adversely modify the substrate essential supporting Atlantic sturgeon and Delaware Rivers are critical habitat PBF by removing or altering the

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substrate. The open passage PBF may be information or highly influential response to the initial regulatory adversely modified by the placement of scientific assessments disseminated on flexibility analysis (IRFA), a statement structures such as dams and tidal or after June 16, 2005. The biological of the assessment by the agency of such turbines, research nets, or altering the information describing the Atlantic issues, and a statement of any changes water depth so that fish cannot swim. sturgeon DPSs, and the information in made in the proposed rule as a result of The salinity PBF may be adversely the draft economic impacts analyses such comments; the response of the modified by activities that impact fresh supporting the critical habitat agency to any comments filed by the water input such as operation of water designation for the five DPSs is Chief Counsel for Advocacy of the Small control structures and water considered influential scientific Business Administration (SBA) in withdrawals, and impacts to water information and subject to peer review. response to the proposed rule, and a depth such as dredging. The water To satisfy our requirements under the detailed statement of any change made quality PBF may be adversely modified OMB Bulletin, we obtained independent to the proposed rule in the final rule as by land development as well as peer review of the biological a result of the comments; a description commercial and recreational activities information and the information used to of and an estimate of the number of on rivers that contribute to nutrient draft the impacts analyses. We small entities to which the rule will loading that could result in decreased incorporated the peer review comments apply or an explanation of why no such DO levels and increased water into the proposed rules prior to estimate is available; a description of temperature, and increased sediment dissemination. Comments received from the projected reporting, recordkeeping deposition that reduces Atlantic peer reviewers were summarized and and other compliance requirements of sturgeon egg adherence on hard are available on the web at: http:// the rule, including an estimate of the spawning substrate and reduces the www.cio.noaa.gov/services_programs/ classes of small entities which will be interstitial spaces used by larvae for prplans/ID294.html and http://www.cio. subject to the requirement and the type refuge from predators. Dredging to noaa.gov/services_programs/prplans/ of professional skills necessary for remove sediment build-up or to ID336.html. preparation of the report or record; and, facilitate vessel traffic may remove or a description of the steps the agency has alter hard substrate that is necessary for Classification taken to minimize the significant egg adherence and as refuge for larvae, National Environmental Policy Act economic impact on small entities and may change the water depth consistent with the stated objectives of resulting in shifts in the salt wedge We have determined that an applicable statutes, including a within the estuary or change other environmental analysis as provided for statement of the factual, policy, and characteristics of the water quality (e.g., under the National Environmental legal reasons for selecting the alternative temperature, DO) necessary for the Policy Act of 1969 for critical habitat adopted in the final rule and why each developing eggs, larvae, and juveniles. designations made pursuant to the ESA one of the other significant alternatives These activities would require ESA is not required. See Markle Interests, to the rule considered by the agency section 7 consultation when they are L.L.C. v. U.S. Fish and Wildlife Serv., which affect the impact on small implemented, funded, or carried out by 827 F.3d 452 (5th Cir. 2016); Bldg. entities was rejected. We received no a Federal agency. Indus. Ass’n of the Bay Area v. U.S. comments specifically on the IRFAs We believe this critical habitat Dept. of Commerce, 792 F.3d 1027 (9th from the public or from the Chief designation provides Federal agencies, Cir. 201); Douglas County v. Babbitt, 48 Counsel for Advocacy of the SBA. The private entities, and the public with F.3d 1495 (9th Cir. 1995), cert. denied, FRFA for the Regulatory Flexibility Act clear notification of critical habitat for 116 S.Ct. 698 (1996). determinations for the Gulf of Maine, the Gulf of Maine, New York Bight, Regulatory Flexibility Act New York Bight and Chesapeake Bay Chesapeake Bay, Carolina, and South Determinations DPSs and the FRFA for the Regulatory Atlantic DPSs of Atlantic sturgeon, the Flexibility Act determinations for the PBF(s), and the boundaries of those The ESA does not require use of any Carolina and South Atlantic DPSs of habitats. These designations allow particular methodology in the Atlantic sturgeon analyze the impacts of Federal agencies and others to evaluate consideration of impacts pursuant to this rule on small entities, are included the potential effects of their activities on section 4(b)(2) (see, e.g., Building as Appendix A of the respective Impacts critical habitat to determine if ESA Industry Association of the Bay Area v. Analysis, and are available upon request section 7 consultation with us is U.S. Department of Commerce, 792 F.3d (see ADDRESSES). A summary of each needed, given the specific definition of 1027 (9th Cir. 2015)). In preparing the analysis follows. each PBF. rules proposing critical habitat for the Atlantic sturgeon DPSs, we used Regulatory Flexibility Act Information Quality Act and Peer different methodologies to conduct the Determinations for the Gulf of Maine, Review respective impacts analyses. While New York Bight and Chesapeake Bay On December 16, 2004, the Office of those differences in analyses are DPSs (5 U.S.C. 601 et seq.) Management and Budget (OMB) issued reflected below, we note the As explained in the FRFA for the Gulf its Final Information Quality Bulletin conclusions are the same, i.e., that of Maine, New York Bight and for Peer Review (Bulletin), establishing designation of critical habitat for the Chesapeake Bay DPSs, the economic minimum peer review standards, a five DPSs of Atlantic sturgeon will not analysis described and estimated the transparent process for public have significant economic impacts on number of small entities to which this disclosure of peer review planning, and small entities. The Final Regulatory rule may apply. These estimates are opportunities for public participation. Flexibility Analyses (FRFA) were based on the best available information The OMB Bulletin, implemented under prepared pursuant to section 604 of the and take into account uncertainty. Using the Information Quality Act (Pub. L. Regulatory Flexibility Act (5 U.S.C. 601, the number of employees as the criteria 106–554), is intended to enhance the et seq.). A FRFA includes: A statement for determining whether or not an quality and credibility of the Federal of the need for, and objectives of, the establishment is a small business, on Government’s scientific information and rule; a statement of the significant issues average, 99 percent of businesses in the applies to influential scientific raised by the public comments in counties and cities in which the

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proposed Atlantic sturgeon critical destruction could result in continued Businesses in North American habitat units occur are considered small declines in abundance of these Atlantic Industry Classification System (NAICS) businesses. For purposes of projecting sturgeon DPSs, would not provide for Subsector 325320, Pesticide and Other the impacts of administrative ESA the conservation of the DPSs, and would Agricultural Chemical Manufacturing, section 7 costs on small businesses in not meet the legal requirements of the could be involved in 5 projected each critical habitat unit, it was ESA. nationwide pesticide authorization assumed that the percentage of private We also analyzed designating a subset consultations. A small business in this entities that are involved in those of the identified critical habitat areas. subsector is defined by the SBA as consultations that are small businesses We rejected this alternative because having 1,000 employees. Businesses in is the same as the percentage of designating only some of the areas NAICS Sector 22 (Utilities) could be businesses that are small businesses in containing the PBFs that are essential to involved in 14 consultations projected counties that include critical habitat the conservation of each DPS would not to occur for hydropower licensing, LNG units. provide for the conservation of the DPSs facility or pipelines authorization, or To address uncertainty, costs were and, thus, this alternative does not meet nuclear power plant construction/ estimated as low, medium, and high. the legal requirements of the ESA. operation licensing. For hydropower However, this approach likely Finally, we analyzed designating all generation and natural gas distribution overestimates the costs because the critical habitat areas identified for the enterprises, a small business is defined majority of consultations have been DPS. We analyzed the economic, by the SBA as one having a total of 500 informal and, thus, have lower costs national security, and other relevant employees. For nuclear power than formal consultations. In addition, impacts of designating critical habitat. generation, a small business is defined this analysis was based on the critical Our conservative identification of by the SBA as one having a total of 750 habitat areas as defined by hydrographic potential, incremental, economic employees. Businesses in NAICS Sector unit codes. We subsequently revised impacts indicates that any such impacts, 54 could be involved as contractors and narrowed how we define the if they were to occur, would be very assisting with ESA section 7 boundaries of the critical habitat units. small. Any incremental economic consultation in any of the 155 projected As a result, fewer small businesses are impacts will consist solely of the future Federal actions that could likely to be affected by the critical administrative costs of consultation; no involve third parties. Relevant habitat designations than were projected project modifications are projected to be subsectors could include 541370, based on the information available to required to address impacts solely to the Surveying and Mapping, 541620, the economist at that time. Finally, proposed critical habitat. There are Environmental Consulting Services, or because Atlantic sturgeon are present in conservation benefits of the critical 541690, Other Scientific and Technical the areas that we are designating as habitat designations, both to the species Consulting Services. A small business in critical habitat, consultation is likely to and to society. While we cannot any of these subsectors is defined by the have occurred even if critical habitat quantify nor monetize these benefits, we SBA as one having average annual was not designated. Therefore, the believe they are not negligible and are receipts of $15 million. section 7 consultation costs attributed to an incremental effect of the Businesses in NAICS Sector 23, the designation of critical habitat, alone, designations. Construction, could be involved in a are likely to be very small. This final rule does not introduce any We considered the effect to small new reporting, record-keeping number of categories of projected future businesses throughout our analysis and, requirements, or other compliance actions, where they could incur as stated above, there will be no requirements. administrative costs of construction. significant economic impact to small These could include businesses from Regulatory Flexibility Act businesses; therefore, it was the subsector 237120, Oil and Gas Determinations for the Carolina and unnecessary to make any changes from Pipeline and Related Structures Southeast DPSs the proposed rule with the goal of Construction, or subsector 237310, minimizing any significant economic As explained in the FRFA for the Highway, Street, and Bridge impacts on small entities. It is unlikely Carolina and Southeast DPSs, this final Construction. A small business in that the rule will significantly reduce rule is needed to comply with the ESA’s subsector 237120 has average annual profits or revenue for small businesses. requirement to designate critical habitat receipts of $36.5 million, and a small The administrative costs of ESA section to the maximum extent prudent and business in subsector 237310 has 7 consultation are likely to be small determinable when species are listed as average annual receipts of $36.5 million. given, in the absence of critical habitat threatened or endangered. The objective Businesses in subsector 238, Other designation, nearly the same number of this rule is to identify Atlantic Specialty Trade Contractors, could be and type of consultations would have sturgeon habitat areas and features, the involved as construction contractors in occurred to consider the effects of protection of which will support the 20 future USACE section 404/RHA Federal actions on the Atlantic sturgeon conservation of these endangered DPSs. permitting actions and 5 FEMA disaster DPSs. The FRFA estimates the number of assistance actions. Small businesses in In the IRFA, we considered the small entities to which the rule may this subsector have average annual alternative of not proposing critical apply, based on the information in the receipts of $15 million. habitat for the Gulf of Maine, New York Impacts Report. The SBA has Cities could be involved in many of Bight, or Chesapeake Bay DPS. We established size standards for all for- the 70 projected bridge repair or rejected this alternative because we profit economic activities or industries replacement projects, and some determined the PBFs forming the basis in the North American Industry proportion of the 20 projected section for the critical habitat designations are Classification System (13 CFR 121.201; 404/RHA permitting actions. The SBA essential to the conservation of the Gulf 78 FR 37398; June 20, 2013; 78 FR defines a small governmental of Maine, New York Bight, and 77343, December 23, 2013; 79 FR 33467, jurisdiction as cities, counties, towns, Chesapeake Bay DPSs. The lack of June 12, 2014) (https://www.sba.gov/ townships, villages, school districts, or protection of the critical habitat PBFs sites/default/files/files/Size_Standards_ special districts with a population of from adverse modification and/or Table.pdf). less than 50,000.

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Our consultation database does not the rule. Third parties would only be Executive Order 13175, Consultation track the identity of past third parties required to keep records or submit and Coordination with Indian Tribal involved in consultations, or whether reports pursuant to ESA section 7 Governments, outlines the the third parties were small entities; consultations on future proposed responsibilities of the Federal therefore we have no basis to determine projects that may affect critical habitat. Government in matters affecting tribal the percentage of the 155 third parties Similarly, there are no other compliance interests. If NMFS issues a regulation that may potentially be involved in requirements in the rule. There are no with tribal implications (defined as future consultations due to impacts to professional skills necessary for having a substantial direct effect on one critical habitat that may be small preparation of any report or record. or more Indian tribes, on the businesses, small nonprofits or small We considered the effect to small relationship between the Federal government jurisdictions. businesses throughout our analysis and, Government and Indian tribes, or on the There is no indication in the data as stated above, there will be no distribution of power and evaluated in the Impacts Analysis significant economic impact to small responsibilities between the Federal Report, which serves as the basis for this businesses. Changes from the proposed Government and Indian tribes), we must FRFA, that the designation would place rule that would minimize significant consult with those governments or the small entities at a competitive economic impacts on small entities Federal Government must provide funds disadvantage compared to large entities. were therefore unnecessary. necessary to pay direct compliance costs Incremental economic impacts due to In the IRFA, we considered the incurred by tribal governments. The the designation for the Carolina and alternative of not proposing new critical critical habitat designations for Gulf of South Atlantic DPSs will be minimal habitat for the Carolina and South Maine, New York Bight, Chesapeake overall. These costs will result from Atlantic DPSs of Atlantic sturgeon. We Bay, Carolina, and South Atlantic DPSs participation in the Section 7 rejected this alternative because we do not have tribal implications because consultation process, and will be spread determined designating critical habitat designated critical habitat will not have over 14 critical habitat units totaling for Atlantic sturgeon is prudent and a substantial direct effect on one or over 2,996 river miles (4,822 rkm) in 4 determinable, and the ESA requires more Indian tribes, on the relationship states. Federal agencies will bear the critical habitat designation in that between the Federal Government and majority of the costs (59 percent to 83 circumstance. In the IRFA, we also Indian tribes, or on the distribution of percent), which will be limited to analyzed the alternative of including all power and responsibilities between the administrative costs of consultation for Federal Government and Indian tribes. all parties involved. There are no large coastal rivers from the North apparent concentrations of costs. For Carolina/Virginia border southward to Takings (Executive Order 12630) most if not all of the Federal activities the St Johns River, Florida, in the Under E.O. 12630, Federal agencies predicted to occur in the next 10 years, designation, instead of just documented must consider the effects of their actions if the effects to critical habitat will be spawning rivers. This alternative would on constitutionally protected private adverse and require formal consultation, likely have involved many more property rights and avoid unnecessary those effects would also constitute consultations on Federal actions each takings of property. A taking of property adverse effects to Atlantic sturgeon or year, potentially impacting many more includes actions that result in physical shortnose sturgeon, either directly when small entities. Several large coastal invasion or occupancy of private they are in the project area, or indirectly rivers within the geographical area property, and regulations imposed on due to the effects on their habitat, and occupied by the Carolina and South private property that substantially affect these consultations would be Atlantic DPSs of Atlantic sturgeon do its value or use. In accordance with E.O. coextensive formal consultations. not appear to support spawning and 12630, this rule would not have Assuming a third party would be juvenile recruitment or to contain significant takings implications. The involved and incur costs for each of the suitable habitat features to support designation of critical habitat for the 179 projects in all of the categories of spawning and we determined it would Gulf of Maine, New York Bight, Federal activity that involved third not promote Atlantic sturgeon Chesapeake Bay, Carolina, and South parties in the past, the costs to third conservation by including those rivers Atlantic DPSs of Atlantic sturgeon will parties that could be involved in the in the rule. not impose additional burdens on land projected future consultations other Consultation and Coordination With use or affect property values. Therefore, than those with EPA would be between Indian Tribal Governments (Executive a takings implication assessment is not $880 and $2,080 for each action for Order 13175) required. coextensive formal consultations, and between $1,500 and $3,000 for each of The longstanding and distinctive Environmental Justice (Executive Order the 23 fully incremental informal relationship between the Federal and 12898) consultations we conservatively tribal governments is defined by The designation of critical habitat is estimated could be required due to the treaties, statutes, executive orders, not expected to have a rule. The total costs over the next 10 judicial decisions, and agreements, disproportionately high effect on years to all third parties for these 2 which differentiate tribal governments minority populations or low-income classes of actions would be between from the other entities that deal with, or populations. $30,000 and $60,000 for the incremental are affected by, the Federal Government. Unfunded Mandates Reform Act (2 informal consultations and between This relationship has given rise to a U.S.C. 1501 et seq.) $136,400 and $322,400 for the special Federal trust responsibility coextensive formal consultations. The involving the legal responsibilities and This final rule will not produce a total costs over the next 10 years to third obligations of the United States toward Federal mandate. The designation of parties involved in the EPA pesticides Indian Tribes and the application of critical habitat does not impose a consultations are conservatively fiduciary standards of due care with legally-binding duty on non-Federal estimated to be $25,072 across all units. respect to Indian lands, tribal trust government entities or private parties. There are no record-keeping or resources, and the exercise of tribal The only regulatory effect is that Federal reporting requirements associated with rights. agencies must ensure that their actions

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do not destroy or adversely modify shall be carried out in a manner which opinion, as well as to ensure that their critical habitat under section 7 of the is consistent to the maximum extent actions comply with the CZMA’s ESA. Non-Federal entities which receive practicable with the enforceable policies Federal consistency requirement. At this Federal funding, assistance, permits or of approved State coastal management time, we do not anticipate that this otherwise require approval or programs. We have determined that any designation is likely to result in any authorization from a Federal agency for effects of this designation of critical additional management measures by an action may be indirectly impacted by habitat on coastal uses and resources in other Federal agencies. the designation of critical habitat, but Maine, New Hampshire, Massachusetts, Energy Supply, Distribution, and Use the Federal agency has the legally Connecticut, New York, New Jersey, (Executive Order 13211) binding duty to avoid destruction or Delaware, Pennsylvania, Maryland, adverse modification of critical habitat. Virginia, North Carolina, South Executive Order 13211 requires This rule will not significantly or Carolina, Georgia and Florida are not agencies to prepare Statements of uniquely affect small governments. reasonably foreseeable at this time. Energy Effects when undertaking an Therefore, a Small Government Action However, the State of North Carolina action expected to lead to the promulgation of a final rule or Plan is not required. suggested SERO’s consistency regulation that is a significant regulatory determination regarding designating Regulatory Planning and Review action under E.O. 12866 and is likely to critical habitat was incomplete and did (Executive Orders 12866 and 13771) have a significant adverse effect on the not meet the requirements of the CZMA The OMB determined that this final supply, distribution, or use of energy. and its implementing regulations. The rule is significant under Executive OMB Guidance on Implementing E.O. State maintained SERO submitted an Order 12866 because it may create a 13211 (July 13, 2001) states that incomplete negative determination, serious inconsistency or otherwise significant adverse effects could include because it had not provided an interfere with an action taken or any of the following outcomes evaluation of the North Carolina coastal planned by another agency. Final compared to a world without the program’s enforceable policies; SERO Economic and Regulatory Impact regulatory action under consideration: disagrees. While SERO recognizes the Review Analyses and 4(b)(2) analyses as (1) Reductions in crude oil supply in State’s goals of coastal resource set forth and referenced herein have excess of 10,000 barrels per day; (2) protection and economic development, been prepared to support the exclusion reductions in fuel production in excess it determined that any effects of the process under section 4(b)(2) of the of 4,000 barrels per day; (3) reductions proposed action on North Carolina’s ESA. To review these documents see in coal production in excess of 5 million coastal uses and resources are not ADDRESSES section above. tons per year; (4) reductions in natural In addition, as explained above, OMB reasonably foreseeable at this time. As gas production in excess of 25 million classified this rule as significant under indicated in SERO’s negative cubic feet per year; (5) reductions in E.O. 12866. Therefore, this final rule is determination, this designation of electricity production in excess of 1 considered an E.O. 13771 regulatory critical habitat will not restrict any billion kilowatt-hours per year or in action. This rule is not subject to the coastal uses, affect land ownership, or excess of 500 megawatts of installed requirements of E.O. 13771 because this establish a refuge or other conservation capacity; (6) increases in energy use rule results in no more than de minimis area; rather, the designation affects only required by the regulatory action that costs. the ESA section 7 consultation process exceed any of the thresholds above; (7) for Federal actions. These consultations increases in the cost of energy Federalism (Executive Order 13132) will consider effects of Federal actions production in excess of one percent; (8) Pursuant to the Executive Order on on coastal uses and resources to the increases in the cost of energy Federalism, E.O. 13132, we determined extent they overlap with critical habitat. distribution in excess of one percent; or that this final rule does not have We considered the range of Federal (9) other similarly adverse outcomes. A significant federalism effects and that a actions that this designation may affect regulatory action could also have federalism assessment is not required. (e.g., dredging, bridge construction/ significant adverse effects if it: (1) However, in keeping with Department repair, water withdrawals) and which Adversely affects in a material way the of Commerce policies and consistent may affect coastal uses and resources in productivity, competition, or prices in with ESA regulations at 50 CFR the affected States. However, we do not the energy sector; (2) adversely affects in 424.16(c)(1)(ii), we requested have sufficient information on the a material way productivity, information from, and coordinated this specifics of any future activities (e.g., competition or prices within a region; critical habitat designation with, when, where and how they will be (3) creates a serious inconsistency or appropriate state resource agencies in carried out) to characterize any of these otherwise interferes with an action Maine, New Hampshire, Massachusetts, as reasonably foreseeable. Therefore, taken or planned by another agency Connecticut, Rhode Island, New York, because the effects are not reasonably regarding energy; or (4) raises novel New Jersey, Delaware, Maryland, foreseeable, we cannot make a legal or policy issues adversely affecting Virginia, the District of Columbia, North determination as to whether the Federal the supply, distribution or use of energy Carolina, South Carolina, Georgia, and activities will be consistent with any arising out of legal mandates, the Florida. enforceable policies of approved State President’s priorities, or the principles coastal management programs. Through set forth in E.O. 12866 and 13211. We Coastal Zone Management Act the consultation process, we will do not believe this rule will have a Under section 307(c)(1)(A) of the receive information on proposed significant adverse effect on the supply, Coastal Zone Management Act (CZMA) Federal actions and their effects on distribution, or use of energy. The only (16 U.S.C. 1456(c)(1)(A)) and its listed species and the designated critical Federal actions we may consult on that implementing regulations, each Federal habitat. Any related biological opinions may have material effects on energy are activity within or outside the coastal will analyze this information. It will FERC hydropower licensing and zone that has reasonably foreseeable then be up to the Federal action Nuclear Regulatory Commission actions. effects on any land or water use or agencies to decide how to comply with These actions have the potential to natural resource of the coastal zone the ESA in light of our biological adversely affect sturgeon as well as its

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critical habitat, and thus most of the definitive source for determining the section 101 of the Sikes Act (16 U.S.C. impacts of these consultations will not critical habitat boundaries. 670a), and for which we have be incremental impacts of this rule. (a) Critical habitat for the Gulf of determined that such plan provides a Moreover, the FPA, which FERC Maine, New York Bight, and conservation benefit to the species, and implements in issuing hydropower Chesapeake Bay DPSs of Atlantic its habitat, for which critical habitat is licenses, has independent requirements sturgeon. The physical features essential designated. to avoid adverse effects on fisheries for the conservation of Atlantic sturgeon (i) The Department of the Army, U.S. resources and habitats, and thus belonging to the Gulf of Maine, New Military Academy—West Point, NY; modifications to hydropower facilities York Bight, and Chesapeake Bay DPSs (ii) The Department of the Air Force, to avoid impacts to critical habitat may are those habitat components that Joint Base Langley—Eustis, VA; also be coextensive with the FPA, and support successful reproduction and (iii) The Department of the Navy, not incremental impacts of the recruitment. These are: Marine Corps Base Quantico, VA; designation. Therefore, we have not (1) Hard bottom substrate (e.g., rock, (iv) The Department of the Navy, prepared a Statement of Energy Effects. cobble, gravel, limestone, boulder, etc.) Naval Weapons Station Yorktown, VA; in low salinity waters (i.e., 0.0–0.5 parts and, Paperwork Reduction Act of 1995 (44 per thousand range) for settlement of U.S.C. 3501 et seq.) (v) The Department of the Navy, fertilized eggs, refuge, growth, and Naval Support Facility Dahlgren, VA. This final rule does not contain any development of early life stages; (6) Pursuant to ESA section 3(5)(A)(i), new or revised collection of (2) Aquatic habitat with a gradual critical habitat for the Gulf of Maine, information. This rule, if adopted, downstream salinity gradient of 0.5 up New York Bight, and Chesapeake Bay would not impose recordkeeping or to as high as 30 parts per thousand and DPSs of Atlantic sturgeon does not reporting requirements on State or local soft substrate (e.g., sand, mud) between include existing (already constructed), governments, individuals, businesses, or the river mouth and spawning sites for as of September 18, 2017, manmade organizations. juvenile foraging and physiological structures that do not provide the development; References Cited physical features such as aids-to- (3) Water of appropriate depth and navigation (ATONs), artificial reefs, boat A complete list of all references cited absent physical barriers to passage (e.g., ramps, docks, or pilings within the legal in this rulemaking can be found on our locks, dams, thermal plumes, turbidity, boundaries of designated critical Web sites at http://sero.nmfs.noaa.gov/ sound, reservoirs, gear, etc.) between the habitat. _ protected resources/sturgeon/ river mouth and spawning sites (b) Critical habitat for the Carolina index.html and https://www.greater necessary to support: and South Atlantic DPSs of Atlantic (i) Unimpeded movement of adults to atlantic.fisheries.noaa.gov/protected/ sturgeon. The physical features essential and from spawning sites; atlsturgeon/ and is available upon for the conservation of Atlantic sturgeon (ii) Seasonal and physiologically request from the NMFS SERO and belonging to the Carolina and South dependent movement of juvenile GARFO offices (see ADDRESSES). Atlantic DPSs are those habitat Atlantic sturgeon to appropriate salinity components that support successful List of Subjects in 50 CFR Part 226 zones within the river estuary; and reproduction and recruitment. These Endangered and threatened species. (iii) Staging, resting, or holding of subadults or spawning condition adults. are: Dated: August 10, 2017. Water depths in main river channels (1) Hard bottom substrate (e.g., rock, Samuel D Rauch III, must also be deep enough (e.g., at least cobble, gravel, limestone, boulder, etc.) Deputy Assistant Administrator for 1.2 meters) to ensure continuous flow in in low salinity waters (i.e., 0.0–0.5 parts Regulatory Programs, National Marine the main channel at all times when any per thousand range) for settlement of Fisheries Service. sturgeon life stage would be in the river; fertilized eggs and refuge, growth, and For the reasons set out in the (4) Water, between the river mouth development of early life stages; preamble, we amend 50 CFR part 226 as and spawning sites, especially in the (2) Aquatic habitat inclusive of waters follows: bottom meter of the water column, with with a gradual downstream gradient of the temperature, salinity, and oxygen 0.5 up to as high as 30 parts per PART 226—DESIGNATED CRITICAL values that, combined, support: thousand and soft substrate (e.g., sand, HABITAT (i) Spawning; mud) between the river mouth and (ii) Annual and interannual adult, spawning sites for juvenile foraging and ■ 1. The authority citation for part 226 subadult, larval, and juvenile survival; physiological development; continues to read as follows: and (3) Water of appropriate depth and Authority: 16 U.S.C. 1533. (iii) Larval, juvenile, and subadult absent physical barriers to passage (e.g., growth, development, and recruitment locks, dams, thermal plumes, turbidity, ■ 2. Add § 226.225 to read as follows: (e.g., 13 to 26 °C for spawning habitat sound, reservoirs, gear, etc.) between the § 226.225 Critical habitat for the Gulf of and no more than 30 °C for juvenile river mouth and spawning sites Maine, New York Bight, Chesapeake Bay, rearing habitat, and 6 milligrams per necessary to support: Carolina, and South Atlantic distinct liter (mg/L) or greater dissolved oxygen (i) Unimpeded movement of adults to population segments (DPSs) of Atlantic for juvenile rearing habitat). and from spawning sites; Sturgeon. (5) Pursuant to ESA section (ii) Seasonal and physiologically Critical habitat is designated for the 4(a)(3)(B)(i), critical habitat for the New dependent movement of juvenile Gulf of Maine, New York Bight, York Bight and Chesapeake Bay DPSs of Atlantic sturgeon to appropriate salinity Chesapeake Bay, Carolina, and South Atlantic sturgeon does not include the zones within the river estuary; and Atlantic DPSs of Atlantic sturgeon as following areas owned or controlled by (iii) Staging, resting, or holding of described in paragraphs (a) through (h) the Department of Defense, or subadults or spawning condition adults. of this section. The maps, clarified by designated for its use, that are subject to Water depths in main river channels the textual descriptions in paragraphs an integrated natural resource must also be deep enough (at least 1.2 (d) through (h) of this section, are the management plan prepared under meters) to ensure continuous flow in the

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main channel at all times when any whereas dissolved oxygen less than 5.0 (6) Pursuant to ESA section 3(5)(A)(i), sturgeon life stage would be in the river; mg/L for longer than 30 days is less critical habitat for the Carolina and the (4) Water quality conditions, likely to support rearing when water South Atlantic DPSs of Atlantic especially in the bottom meter of the temperature is greater than 25 °C. In sturgeon does not include existing water column, with temperature and temperatures greater than 26 °C, (already constructed), as of September oxygen values that support: dissolved oxygen greater than 4.3 mg/L 18, 2017, manmade structures that do (i) Spawning; is needed to protect survival and not provide the physical features such ° (ii) Annual and inter-annual adult, growth. Temperatures of 13 to 26 C as aids-to-navigation (ATONs), artificial subadult, larval, and juvenile survival; likely support spawning habitat. reefs, boat ramps, docks, or pilings and (5) Pursuant to ESA section within the legal boundaries of (iii) Larval, juvenile, and subadult 4(a)(3)(B)(i), critical habitat for the growth, development, and recruitment. Carolina DPS of Atlantic sturgeon does designated critical habitat. Appropriate temperature and oxygen not include certain waters of the Cooper (c) States and counties affected by this values will vary interdependently, and River, South Carolina, adjacent to Joint critical habitat designation. Critical depending on salinity in a particular Base Charleston. These areas are habitat is designated for the following habitat. For example, 6.0 mg/L described in 33 CFR 334.460(a)(8)(ii)– DPSs in the following states and dissolved oxygen or greater likely (iv), 33 CFR 334.460(a)(9), and 33 CFR counties: supports juvenile rearing habitat, 334.460(a)(10).

DPS State—Counties

Gulf of Maine...... ME—Androscoggin, Cumberland, Kennebec, Lincoln, Penobscot, Sagadahoc, Somerset, Waldo, and York. NH—Rockingham and Stafford. MA—Essex. New York Bight ...... CT—Fairfield, Hartford, Litchfield, Middlesex, New Haven, New London, and Tolland. NJ—Bergen, Burlington, Camden, Cape May, Cumberland, Gloucester, Hudson, Mercer, Mon- mouth, and Salem. NY—Albany, Bronx, Columbia, Dutchess, Greene, Kings, New York, Orange, Putnam, Queens, Rensselaer, Richmond, Rockland, Saratoga, Ulster, and Westchester. DE—Kent, New Castle, and Sussex. PA—Bucks, Delaware, and Philadelphia. Chesapeake Bay ...... DC—District of Columbia. MD—Charles, Dorchester, Montgomery, Prince George’s, St. Mary’s, and Wicomico. VA—Arlington, Caroline, Charles City, Chesterfield, Dinwiddie, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, King George, James City, King and Queen, King William, Lancaster, Loudoun, Middlesex, New Kent, Northumberland, Prince George, Prince William, Richmond, Spotsylvania, Stafford, Surry, Westmoreland, and York. Carolina ...... NC—Anson, Bertie, Beaufort, Brunswick, Carteret, Columbus, Craven, Duplin, Edgecombe, Halifax, Hyde, Johnston, Lenoir, Martin, Nash, New Hanover, Northampton, Pamlico, Pender, Pitt, Richmond, Wake, Washington, and Wayne. SC—Berkeley, Charleston, Chesterfield, Clarendon, Darlington, Dillon, Florence, Georgetown, Horry, Marion, Marlboro, and Williamsburg. South Atlantic...... SC—Aiken, Allendale, Bamberg, Barnwell, Beaufort, Charleston, Colleton, Dorchester, Edgefield, Hampton, and Jasper. GA—Appling, Atkinson, Baldwin, Ben Hill, Bibb, Bleckley, Brantley, Bryan, Bulloch, Burke, Camden, Charlton, Chatham, Coffee, Dodge, Effingham, Emanuel, Glascock, Glynn, Han- cock, Houston, Jeff Davis, Jefferson, Jenkins, Johnson, Jones, Laurens, Long, McIntosh, Monroe, Montgomery, Pierce, Pulaski, Richmond, Screven, Tattnall, Telfair, Toombs, Treutlen, Twiggs, Ware, Warren, Washington, Wayne, Wheeler, Wilcox, and Wilkinson. FL—Baker and Nassau.

(d) Critical habitat boundaries for the (3) Androscoggin River main stem from its confluence with the Piscataqua Gulf of Maine DPS. Critical habitat for from the Brunswick Dam downstream to River and upstream to the Route 4 Dam; the Gulf of Maine DPS of Atlantic where the main stem river drainage and sturgeon is the waters of: discharges into Merrymeeting Bay; (5) Merrimack River from the Essex (1) Penobscot River main stem from (4) Piscataqua River from its Dam (also known as the Lawrence Dam) the Milford Dam downstream to where confluence with the Salmon Falls and downstream to where the main stem the main stem river drainage discharges Cocheco rivers downstream to where river discharges at its mouth into the at its mouth into Penobscot Bay; the main stem river discharges at its (2) Kennebec River main stem from mouth into the Atlantic Ocean as well Atlantic Ocean. the Ticonic Falls/Lockwood Dam as the waters of the Cocheco River from BILLING CODE 3510–22–P downstream to where the main stem its confluence with the Piscataqua River river discharges at its mouth into the and upstream to the Cocheco Falls Dam, Atlantic Ocean; and waters of the Salmon Falls River

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(6) Maps of the Gulf of Maine DPS follow:

Gulf of Maine Unit 1 Map1 Penobscot River __ ,--fi8"W\ r-- \ PISCATAQUIS \ \ I \ \ \ --­ ~-- \ r--1-- \ \ _r- \ \ \ -.N \ -.I 4S"N \ Milford o;m \ \ -- PENOBSCOT i \ \ '\ \ WYAsHINGTON I I '\ \\ --- ' \ i I HANCOC~ ll --- \ t \ \

WALDO

_ _, KNOX

0510 20 3D

Legend ~ Critical Habitat Area

Thla map Illustrates Atlantic sturgeon critical habitat. Critical habitat tuU Of tile liver Within tile lllw1rated Critical Habitat Area; from the ordinary high Wder mark of one riverbank to the ordinary Area of high water mark oftlte opposing riverbank. Fol: clarificatiOn oftlte crltlcaf habitat daffnitiOI'I, please refer to tlte narrative descrlptiOI'I. Detail

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Gulf of Maine Units 2 and 3 Map2 Kennebec River and Androscoggin River \ 70"3ffW w r I \ - I "\\.._I.. .;.. PENOBSCOT \ r-- J \ \ \ ---­ FRANK!.JN I -- tockwoo~ /;_1 ,-'1 I I OXFORD ~ I I '"" { \ l- I ' .1 f I I I I \ ..,. _, \ \ I \

YORK 1o•w

Legend ~ Critical Habitat Area

This map llktetrates.Aiantlc sturgeon critical habitat Crltl.oa1 habitat i5 aD of the river within the illustrated Critical HabltatAtea; from the ordlnafY hlglt watar mark of one riverbank to the ordinary Area of high water mark ofthe opposing l'iwrbank. For clarification of the crfticalllabltat definition, piMeereter to the namdive cre.cription. Detail

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(e) Critical habitat boundaries of the (2) Housatonic River from the Derby stem river discharges at its mouth into New York Bight DPS. Critical habitat for Dam downstream to where the main New York City Harbor; and the New York Bight DPS of Atlantic stem discharges at its mouth into Long (4) Delaware River at the crossing of sturgeon is the waters of: Island Sound; the Trenton-Morrisville Route 1 Toll (1) Connecticut River from the Holyoke Dam downstream to where the (3) Hudson River from the Troy Lock Bridge, downstream to where the main main stem river discharges at its mouth and Dam (also known as the Federal stem river discharges at its mouth into into Long Island Sound; Dam) downstream to where the main Delaware Bay.

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(5) Maps of the New York Bight DPS follow:

New York Bight Unit 1 Map4 Connecticut River

Legend ~ Critical Habitat Area

Thla map illUstrates Atlantic stliltgeO!l critical habitat. Critloal habltat 18111 of the rl\lenilthinlhe illustrated Critical HabJiatArea; from the ordinary high water mark of one livetbank to the ordi11111Y Area of high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description. Detail

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New York Bight Units 2 and 3 MapS Housaton.ic River and Hudson River (Part A)

DUTCHESS I..ITC:HFIELD

Legend ~ Critical Habitat Area

lhla map lllustratea Atlantic sturgeon clftlcet habitat. Ctltfeal habitat IS an or the riVer within :tt~e Illustrated Ctltical Habitat Area; from the ordinary high water mark of one lfnrbank to the ordinary Area of high water mark ofthe oppoalng ri.verbank. For clarification of the critical habitat definition, plea• refer to the narratiVe description. Detail

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New York Bight Unit 3 Map& Hudson River (Part B)

OTSEGO< 74~30'W 74"W ~- ALBANY SCHOHARIE

I l DELAW'IRE I I "

UlSTER I / / DUTCHESS / ' ' SUlUVAN ' ' ' l

0510 20 30

0-- 5 10

Legend ~ Critical.Habitat Area

1bia map lllulhtesAhntlc sturgeon critical babttat. Critical babitatls 1111 of the ri\ler Wfthin the illwtrated Cdticlll Habitat Area: from the ordinary hlglt waler mark of one riverbank to the ordinary .Area of higb water mark of the oppoelng riverbank. For clarlffcatiol'l of the critiCal habltal clefil'llfion, pleale refer to tlte Mttative descrlptiOI'l. Detait

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

j 73'30'W -- ,.1 I J ~ WASHINGl"QN FULTON j ' ) i J f ""'"' 1---- \ \ 'c, TroyLoek "ndDam

------

I GREENE I ...I ""'..... , COLUMBIA / /..., ""'-, ___ _

ULSTER 2"N 74•3!YW

Legend ~ Critical Habitat Area

ThJs map llluatratn AUantlc slllfgeem critical habitat. Crltlcal habitat IS al of the riVer Within the IIII.ISII'ated Critical Habitat Area; from the ordinary high water mark of otJe riverbank to the ordinary Area of high water mark of the opposing riverbt,nk. For clarlffcaton of the crilicalllabllal definition, pJeate refer to the nal1'afiW desctlption. Detail

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(f) Critical habitat boundaries of the rivers downstream to where the main (4) James River from Boshers Dam Chesapeake Bay DPS. Critical habitat for stem river discharges at its mouth into downstream to where the main stem the Chesapeake Bay DPS of Atlantic the Chesapeake Bay as well as the river discharges at its mouth into the sturgeon is the waters of: waters of the Mattaponi River from its Chesapeake Bay at Hampton Roads; and (1) Potomac River from the Little Falls confluence with the York River and (5) Nanticoke River from the Dam downstream to where the main upstream to the Virginia State Route 360 stem river discharges at its mouth into Maryland State Route 313 Bridge Bridge of the Mattaponi River, and crossing near Sharptown, MD to where the Chesapeake Bay; waters of the Pamunkey River from its (2) Rappahannock River from the U.S. the main stem discharges at its mouth confluence with the York River and Highway 1 Bridge, downstream to into the Chesapeake Bay as well as where the river discharges at its mouth upstream to the Nelson’s Bridge Road Marshyhope Creek from its confluence into the Chesapeake Bay; Route 615 crossing of the Pamunkey with the Nanticoke River and upriver to (3) York River from its confluence River; the Maryland State Route 318 Bridge with the Mattaponi and Pamunkey crossing near Federalsburg, MD.

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(6) Maps of the Chesapeake Bay DPS follow:

Chesapeake Bay Unit 1 Map9 Nanticoke River and Marshyhope .Creek ~~~~--~----_,r--r------~ 75"W

WN

1s•w

Legend ~ Critical Habitat Area

Thitl map Illustrates Alalllic S1urgeon crftlqr habitat. CritiCal habitat itl all of the river Wfth11'1 the illustrated Critical Habitat Area; ftom the ordlllafY hl.;h water mark of ocw riverbank to the ordinary Area of high water mark of the oppoling rtvarbank. For clarification of the critical habitat definition, pleaaa refer to the. narrative deacripllon. Detail

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Chesapeake Bay Unit 2 Map10 Pc>tornac River

\ \ \ \ y"" .... / \ 3tJ•alrN (STAFFORD {

Legend ~ Critical Habitat Area

This map llklatrltee Atlantic stur;eon critical habitat. CritiCal Jlabllat is aD of the river Within the Ulwtrated Ctltical Habitat Area: from the ordinary hltll wamr mark. of Orie riverbank to the ordinary Area of bltli water mark of the opposing riverbank. For clarification ofthe crltlcal habitat cfefinltlon, please mer Ul the nlmdiVe description. Detail

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Chesapeake Bay Unit 3 Map11 Rappahannock River

Legend ~ Critical Habitat Area

Thl• map lllutratee Atlantic •turveon critical habitat. Critical habitat Is au of Ute riVer Within the lllustndiild Critical Habitat Area; from the ordinary high water mark of one riverbank to the ordinary Area of hlglt water mark of tlte oppoelng riverbank. For clarification of tlte critiCal habitat definition, pleMe rvrer to tlte natratiYe description. Detail

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Chesapeake Bay Unit 4 Map12 York River, Mattaponi River, and Pamunkey River ...... ,...... ,...----'C::I

87'30'N

'17'

Legend ~ Critical Habitat Area

This map llu&tnlte& Attamic sturgeon critical habitat. CrlllcaJ habitat let all of the river within the lllu.lrated C:fitical Habitat Area; from the ordinary high water marie of one riverbank to the ordinary Area of hlgb water mark of the oppoaing riverbank~ For clarification of the cifllcalllabllat definition, piNie Nfer to the narratiVe description. Detail

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(g) Critical habitat boundaries of the (3) Carolina Unit 3 includes the Neuse from the Pee Dee River to the Carolina DPS. The lateral extent for all River main stem from the Milburnie confluence with the Waccamaw River; critical habitat units for the Carolina Dam downstream to rkm 0; (6) Carolina Unit 6 includes the Black DPS of Atlantic sturgeon is the ordinary (4) Carolina Unit 4 includes the Cape River main stem from Interstate high water mark on each bank of the Fear River main stem from Lock and Highway 95 downstream to rkm 0 (the river and shorelines. Critical habitat for Dam #2 downstream to rkm 0 and the confluence with the Pee Dee River); and the Carolina DPS of Atlantic sturgeon is: Northeast Cape Fear River from the (7) Carolina Unit 7 includes the (1) Carolina Unit 1 includes the upstream side of Rones Chapel Road Santee River main stem from the Wilson Roanoke River main stem from the Bridge downstream to the confluence Dam downstream to the fork of the Roanoke Rapids Dam downstream to with the Cape Fear River; North Santee River and South Santee rkm 0; (5) Carolina Unit 5 includes the Pee River distributaries, the Rediversion (2) Carolina Unit 2 includes the Tar- Dee River main stem from Blewett Falls Canal from the St. Stephen Powerhouse Pamlico River main stem from the Dam downstream to rkm 0, the downstream to the confluence with the Santee River, the North Santee River Rocky Mount Millpond Dam Waccamaw River from Bull Creek from the fork of the Santee River and downstream to rkm 0; downstream to rkm 0, and Bull Creek South Santee River downstream to rkm

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0, the South Santee River from the fork West Branch Cooper River from the River and East Branch Cooper River of the Santee River and North Santee Tailrace Canal downstream to the tributaries downstream to rkm 0, not River downstream to rkm 0, the Tailrace confluence with the East Branch Cooper including the area described in Canal from Pinopolis Dam downstream River, and the Cooper River from paragraph (b)(5) of this section. to the West Branch Cooper River, the confluence of the West Branch Cooper (8) Maps of the Carolina DPS follow:

Carolina Unit 1 Roanoke Unit Map1

77"30W 77'W VIRGINIA

r' 36"30' r '\ toi ( I Northampton I I I

I I I

Martin

I' I \ Washington I ' I ( / I ) i r ,.,.------l W+EN s 0 5 :I0-20 40 35•30,N =;~f:~-~~~ii=~~K~i~lo~me=t=e~rs~- e 5 10 20 30 77"30'W

Legend

- Critical Habitat

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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Carolina Unit 2 Tar-Pamlico Unit Map2

1 "\ ..-! - .. 'I ~\ now I ,_' ...... I NORTH CAROLINA I I I ' Rocky Mount Millpond Dam I \

Edgecombe -'I \ \ \ \

~ ______'( ______

',_/ ~-

' \ - '- 35°30'N ' Pitt ' \ l , t

w+eN s 0-- 5 10 20 30 0 5 10 20 30 n"30W

Legend ~ Critical Habitat Area

This map Illustrates Atlantic sturgeon critical habitat. Critical habitat Is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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Carolina Unit 3 Neuse Unit Map 3.1

- .:r7'30Wc, 35'JP'N Pitt

J / /

NORTH CAROLINA

35•N

------I / '

77'W

Legend ~ Critical Habitat Area

This map illustrates Atlantic sturgeon critical habitat. Critical habitat Is all of the river within the Illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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Carolina Unit 3 Neuse Unit Map 3.2

78.30'W \ \

Wake

I~ --. ' I

Johnston

35.30'N

" ' I

) ' / ' Lenoir I "I I N 0 5 10 20 30 I w+ / s 0 5 10 20 78"30'W n•Jow 35•N '"

Legend

- Critical Habitat

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinaJY high water mark on one riverbank to the ordinaJY high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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Carolina Unit 4 Cape Fear Unit Map4

79•w Wayne 1s•w Mount Olive ' .

I I Fayetteville I

35°N 35°N ' I Duplin \ Northeast Cape Fear I 1 Jacksonville I

I I \

Cape Fear ~ Whiteville

I Columbus I I r / ,_, ~ I SOUTH l -/ CAROLINA Atlantic Ocean 0 J4•N

5 10 20

Legend ~ Critical Habitat Area

This map illustrates AUantic sturgeon critical habitat Critical habitat is all of the river within the illustrated CriUcal Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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Carolina Unit 5 Pee Dee Unit Map 5.1

NORTH CAROLINA

Florence

Williamsburg

33"30'

Atlantic Ocean

,_ 0 5 10 20 30

0 4 8 16 79"W

Legend

- Critical Habitat

This map illustrates Atlantic sturgeon critical habitat Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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Carolina Unit 5 Pee Dee Unit Map 5.2

SO"W ', / Blewett Falls Dam~ 35"N

NORTH CAROLINA Anson

•Chesterfield

Darlington

•Darlington

N /r) w+E /// Florence s / • Marion • ,;.1 20 ao/ (

Marion 4 '8 // 16 24 ' .,.,:;: , so·w ' '

Legend

- Critical Habitat

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please rsfer to the narrative description.

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Carolina Unit 6 Black Unit Map6 so·w Bishopville •

SOUTH CAROLINA

"""'-.....,f ...... I ' I \ I

Black Mingo

0 5 10

Legend

- Critical Habitat

This map illustrates Atlantic sturgeon critical habitat. Critical habitat Is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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Carolina Unit 7 Santee • Cooper Unit Map7

Atlantic Ocean

10 20 30 40 w~ Kilometers 5 Miles 0 4 8 16 24 32

Legend ~ Critical Habitat Area

This map illustrates Atlantic sturgeon critical habitat Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water merk of the opposing riverbank, with the exception of U.S. Department of Defense sites determine to be Ineligible for designation. For clarification of the critical habitat definition, please refer to the narrative description.

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(h) Critical habitat boundaries of the from the Edisto River downstream to Mayfield Mill Dam downstream to rkm South Atlantic DPS. The lateral extent rkm 0, and the South Edisto River from 0; for all critical habitat units for the South the Edisto River downstream to rkm 0; (5) South Atlantic Unit 5 includes the Atlantic DPS of Atlantic sturgeon is the (2) South Atlantic Unit 2 includes the main stem Oconee River from Sinclair ordinary high water mark on each bank main stem Combahee–Salkehatchie Dam downstream to the confluence with of the river and shorelines. Critical River from the confluence of Buck and the Ocmulgee River, the main stem habitat for the South Atlantic DPS of Rosemary Creeks with the Salkehatchie Ocmulgee River from Juliette Dam Atlantic sturgeon is: River downstream to the Combahee downstream to the confluence with the (1) South Atlantic Unit 1 includes the River, the Combahee River from the Oconee River, and the main stem North Fork Edisto River from Cones Salkehatchie River downstream to rkm Altamaha River from the confluence of Pond downstream to the confluence 0; the Oconee River and Ocmulgee River with the South Fork Edisto River, the downstream to rkm 0; South Fork Edisto River from Highway (3) South Atlantic Unit 3 includes the (6) South Atlantic Unit 6 includes the 121 downstream to the confluence with main stem Savannah River (including main stem Satilla River from the the North Fork Edisto River, the Edisto the Back River, Middle River, Front confluence of Satilla and Wiggins River main stem from the confluence of River, Little Back River, South River, Creeks downstream to rkm 0; and the North Fork Edisto River and South Steamboat River, and McCoy’s Cut) from (7) South Atlantic Unit 7 includes the Fork Edisto River tributaries the New Savannah Bluff Lock and Dam main stem St. Marys River from the downstream to the fork at the North downstream to rkm 0; confluence of Middle Prong St. Marys Edisto River and South Edisto River (4) South Atlantic Unit 4 includes the and the St. Marys Rivers downstream to distributaries, the North Edisto River main stem Ogeechee River from the rkm 0.

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(8) Maps of the South Atlantic DPS follow:

South Atlantic Unit 1 Edisto Unit Map 8.1

I I Orangeburg Bamberg• \ SOUTH CAROLINA

Bamberg ' I'

/ /

Legend

~ Critical Habitat Area

This map illustrates Atlantic sturgeon critical habitat Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat deflnHion, please refer to the narrative description.

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South Atlantic Unit 1 Edisto Unit Map 8.2

I 34"N 81°30'W I I I

Lexington

/ / / / / / / Aiken / / • / / / /

\ / \ / I SOUTH CAROLINA // I / I / Barnwell / I / / I / I / 1 / Combahee- / / Salkehatchie\ Barnwell 1 / / e I / ( 0 5 10 20 30 0~ ( / Kilbmeters 1 1 Miles 4 8 - 16 24 \2 - , / s1·gow

Legend

- Critical Habitat

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 2 Combahee - Salkehatchie Unit Map9

81.30'

Allendale • 33•N

Allendale / Hampton I \ • \ / / / / I Broad­ Coosawhatchie

/ / /

32.30'N GEORGIA

5 10 Atlantic Ocean 5 10

Legend

~ Critical Habitat Area

This map Illustrates Atlantic sturgeon critical habitat. Critical habitat Is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 3 Savannah Unit Map 10.1

/ / / Hampton // Broad­ // Coosawhatchie / / / Screven / ,/ / / / / SOUTH CAROLINA GEORGIA Jasper

Effingham

• Springfield

Atlantic Ocean

32•N 0 5 10 20 32•N N w+E 0 4 8 s 81.30'W

Legend

- Critical Habitat - SC/GA State Line

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 3 Savannah Unit Map 10.2

/ ' / / / / Aiken / •Appling / • / SOUTH CAROLINA / 3"30'N / 33•30'N

/ / / /

/ / / /

Bam well •Barnwell I I I

/ GEORGIA I

Allendale Burke

Br6ad­ Coosawhatchie I / / / / I Hampton

Legend

- Critical Habitat -- SC/GA State Line

This map illustrates Atlantic sturgeon critical habitat Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 4 Ogeechee Unit Map 11.1

SOUTH CAROLINA

32"30'N } GEORGIA ' ' ' \ Springfield •

Effingham -- ' --­--- ...} - -- Pembroke I • \ -,,_ \ \

' Bryan ' ) > } f'/"5-.. -' \ -~ - \ \ W+EN \ s 20 30 40 Kilometers Atlantic 20 30 Ocean

Legend

~ Critical Habitat Area

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 4 Ogeechee Unit Map 11.2

J I • Crawfordville ) I ...---- ,... 33.30'N ~(-~~~-/~~~~------~

Hancock

Burke

\ Washington \ \ \ I J I I I I I ~--' I I / ' \ \ ,- I ~- \ I - \ I N \ I Emanuel \ I / \ I w+E / \ Screven 0 5 10 20 30 8 40 \ Kilometers Miles " " 0 5 10 20// 30 40 " " / 82°30'W "--

Legend

- Critical Habitat

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 5 Altamaha Unit Map 12.1

82°~!/-f' -- I ~' I Montgomery/ I I I I I j Tattnall I

( Altainaha I Appling I I I I ,I I 31°30'N '' I 31.30'N ' -I_~ ' I < '

Atlantic Ocean 31•N 31•N N 0 5 10 20 30 w+e~--~~~ s 0 5 10 20 82.30W

Legend ~ Critical Habitat Area

This map illustrates Atlantic sturgeon critical habitat. Critical habitat Is all of the river within the Illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 5 Altamaha Unit Map 12.2

- - - ' a3•30'.W\ , •8.- _1 . 0 a3•w Juliette ~am __ - -- - '-- me a1r ~m

( ~ ~

1 Mil\dg:;me• 1/ T' Jones ~ldwin J Sandersville • Washington ,/ --"\ Wilkinson \ \ . \ \ \ \ • J~ersonville \ \ \

32°30'N

I,-' I : Ocmulgee - / L I I

32•N

0 5 10

Legend

- Critical Habitat

This map illustrates Atlantic sturgeon critical habitat Critical habitat iS all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 6 Satilla Unit Map13 s3•w

i'

\ \ I Ware \ \ 31•N t..., r~------" I ~' I I I Charlton ' I GEORGIA ~-Ill ______I f :, I I I r------~r'::.... ~~~~-- ....~1 N 0 5 10 20 30 W+E .. - Miles s 0 -5 -10 20 40 a3•w

Legend ~ Critical Habitat Area

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

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South Atlantic Unit 7 St. Marys Unit Map14

31"N 31"N I I I

Charlton

I I

I I GEORGIA / Atlantic Ocean

30"30'N 30"30'N

FLORIDA / / / / / / Baker /

0 5 10 20 30 ______J 82"W

Legend

~ Critical Habitat Area

This map illustrates Atlantic sturgeon critical habitat. Critical habitat is all of the river within the illustrated Critical Habitat Area from the ordinary high water mark on one riverbank to the ordinary high water mark of the opposing riverbank. For clarification of the critical habitat definition, please refer to the narrative description.

[FR Doc. 2017–17207 Filed 8–16–17; 8:45 am] BILLING CODE 3510–22–C

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